(SnrnpU Slam irljnnl ffiibrarg 
 
Cornell University Library 
 KF 354.W81B53 
 
 V.1 
 
 History of the bench and bar of WIsconsi 
 
 3 1924 018 821 748 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/cletails/cu31924018821748 
 
t^ISTOF^^ 
 
 z 
 
 OP 
 
 THE BENCH AND BAR 
 
 OF 
 
 WISCONSIN". 
 
 I'REl'AKED UKDEE DIRECTION OF 
 
 JOHN E. BEERYMAK 
 
 ILLUSTRATED WITH STEEL ENGRAVINGS. 
 
 X"OI^. I. 
 
 ClilCAGO: 
 
 IT. C. COOPEE, .JE., & CO. 
 
 1898. 
 
PREFATORY NOTE. 
 
 The difficulties encountered in the preparation, or, ratljer, in the super- 
 vision of the preparation, of this work were vastly underestimated. 
 Many of them were insurmountable without the aid of others, which 
 aid could not always be obtained. Nevertheless, whatever of merit the 
 \\-ork ma}' possess is largely due to the unselfish co-operation of a goodly 
 number of members of the bench and bar, to whom cordial acknowl- 
 edgment is hei'eby made. 
 
 Besides the information obtained in the way suggested, all other 
 known means of securing it have been resorted to. These have been so 
 numerous that it has not seemed practicable to give credit in the great 
 majority of cases. 
 
 In the prejaaration of what follows the right to praise has been ex- 
 ercised with much greater freedom t\ra.n the right to blame. I have, 
 too, in nearly all cases where deceased persons are considered, preferred 
 to give the opinions of others concerning them rather than to express 
 my own. Those opinions, in nearly all cases, were expressed by persons 
 whose means of knowledge were superior to those of the writer's. True, 
 in many cases, they are the opinions of admirers and friends. Notwith- 
 standing this, a careful reading between the lines will, in most cases, give 
 a fairly correct idea of the subject of each sketch. 
 
 This work treats of professional men from a professional view point. 
 True, in some cases, the line is not very closely drawn ; but in many cases 
 it is. No unfavorable inference should be based on the absence of re- 
 marks concerning the character or habits of any individual treated of. 
 
 Nothing herein has been prompted by conscious malice or recognized 
 partialitv. In cases where there was reason to suspect the existence of 
 
>ae«eu- ONivMfiitf^ 
 
 25' 9" 
 B^3 
 
CONTENTS. 
 
 VOLUME I. 
 
 CHAPTER I. 
 
 Our Magna Charta, and Some of the Steps Leading to Its Estab- 
 lishment 5 
 
 BY JOHN B. CASSODAY. 
 
 CHAPTER n. 
 AV"ar Questions 27 
 
 BY F. C. WINKLER. 
 
 CHAPTER in. 
 Judge Doty's Court and the Land Tribunal of Milwaukee 55 
 
 CHAPTER IV. 
 Tlie Territorial Supreme Court and Its Judges 65 
 
 CHAPTER V. 
 The First Supreme Court and Its Judges 85 
 
 CHAPTER VI. 
 The Separate Supreme Court and Its Judges 107 
 
 CHAPTER VII. . 
 
 The Separate Supreme Court and Its Judges (continued) 154 
 
 CHAPTER VIII. 
 John R. Bennett's Address to the State Bar Association 269 
 
 V 
 
iv PREFATORY NOTE. 
 
 either, the editor has withheld his own opinions and asked and used those 
 of others who were not so influenced. 
 
 An attempt has been made to keep within the record ; to present the 
 facts as they exist. The errors in this direction are in under-statement 
 rather than in over-statement; especially is this true where the persons 
 written of are alive. In very many cases it is noticeably true because 
 of the expressed wishes of the persons concerned. But generally, where 
 no contrary desire has been made known, the purpose has been to add 
 to the chronological facts a fair estimate of ability, based upon achieve- 
 ment. 
 
 John R. Berryman. 
 
 Madison, Wis., August, 1898. 
 
INDEX TO BIOGRAPHIES. 
 
 Aarons, Charles L 582 
 
 Arnold, Jonathan E 392 
 
 Austin, William H 525 
 
 Baker, Charles M 351 
 
 Bardeen, Charles V 266 
 
 Barnes, Alanson H 359 
 
 Barns, Caleb P 360 
 
 Benedict, Curtis T 516 
 
 Bottum, Elias H 528 
 
 Brigham, Jerome R 571 
 
 Brown, James S 399 
 
 Butler, A. R. R 412 
 
 Carpenter, Matthew H 400 
 
 Carter, Walter S 492 
 
 Carter, William E 532 
 
 Cary, Alfred L 507 
 
 Cary, John W 476 
 
 Cassoday, John B 230 
 
 Cavanagh, James 360 
 
 Chandler, Daniel H 442 
 
 Chapin, Emmons E 603 
 
 Cole, Orsamus 112 
 
 Coon, S. Park 442 
 
 Cooper, Henry A 362 
 
 Cottrill, Jedd P C 415 
 
 Crawford, Samuel 108 
 
 Davis, Dewitt 483 
 
 Dixon, Luther S 121 
 
 Doolittle, James R 345 
 
 Downer, Jason 154 
 
 Doyle, Peter 586 
 
 Dunn, Charles 68 
 
 Erwin, James B 5^6 
 
 vii 
 
 Estabrook, Charles E 590 
 
 Estabrook, Experience 362 
 
 Evans, Enoch W 365 
 
 Fawsett, Charles F 592 
 
 Pinch, Asahel, Jr 443 
 
 Finch, Henry M 470 
 
 Fish, Frank M 357 
 
 Fish, John T 606 
 
 Flanders, James G 624 
 
 Flett, David H 365. 
 
 Frazer, William C 79 
 
 Frisby, Leander F .620 
 
 Gill, Thomas H -. . 546 
 
 Gilmore, John L 594 
 
 Gittings, Christopher C 366 
 
 Graham, Wilson 577 
 
 Groth, John A. F 596 
 
 Flamilton, Charles A 389 
 
 Hand, Elbert O 366 
 
 Haring, Cornelius 1 566 
 
 Hayes, John M 369 
 
 Hazelton, Gerry W 577 
 
 Head, Orson S 369 
 
 Hooker, David G 468 
 
 Howe, Timothy O 105 
 
 Hoyt, Frank ]\T 541 
 
 Hubbell, Levi 96 
 
 Hunter, Charles F 542 
 
 Irwin, David yy 
 
 Jackson, Mortimer M 98 
 
 Johnson, Daniel H 389 
 
 Keep, John M 352 
 
 Kennan, Thomas L 511 
 
VI CONTENTS— Continued. 
 
 CHAPTER IX. 
 Wisconsin Legal Bibliography 281 
 
 BY JOHN R. BERRYMAN. 
 
 \ 
 
 CHAPTER X. 
 
 The State Bar Association of Wisconsin. ...*..: 314 
 
 BY EDWARD P. VILAS. 
 / 
 
 CHAPTER XL 
 The Milwaukee Bar Association 337 
 
 BY C. I. HARING. 
 
 CHAPTER Xn. 
 
 The First Circuit, Its Judges and Lawyers 344 
 
 CHAPTER XIII. 
 The Second Circuit, Its Judges and Lawyers 383 
 
INDEX TO PORTRAITS. 
 
 Whipple, William G 531 
 
 White, Samuel A 381 
 
 Whiton, Edward V 92 
 
 Wight, William W 504 
 
 Winslow, John B 246 
 
 Winkler, Frederick C 438 
 
 INDEX TO PORTRAITS. 
 
 Arnold, Jonathan E 392 
 
 Benedict, Curtis T 516 
 
 Bottum, Elias H 528 
 
 Brigham, Jerome R 571 
 
 Butler, Ammi R. R 412 
 
 Carpenter, Matthew H 400 
 
 Cary, Alfred L 507 
 
 Cary, John W 476 
 
 Cassoday, John B 5 
 
 Dixon, Luther S 121 
 
 Fish, John T -.606 
 
 Flanders, James G 624 
 
 Frisby, Leander F 620 
 
 Jackson, Mortimer AI . .■ 98 
 
 Johnson, Daniel li 389 
 
 Kennan, Thomas L 511 
 
 Killilea, Henry J 543 
 
 Luscombe, Robert 622 
 
 Lynde, William P 422 
 
 Lyon, William P 159 
 
 Mariner, Ephraim 440 
 
 Markham, George C 526 
 
 Miller, George P 627 
 
 Miller, Benjamin K 428 
 
 Newman, Alfred W 254 
 
 Orton, John J 497 
 
 Paine, Byron 134 
 
 Pereles, James M 617 
 
 Pereles, Nathan 613 
 
 Pereles, Thomas J 618 
 
 Pinney, Silas U 250 
 
 Quarles, Charles ' 575 
 
 Quarles, Joseph V 578 
 
 Rogers, Daniel G 572 
 
 Ryan, Edward G 166 
 
 Smith, Amos A. L 523 
 
 Smith, Winfield 550 
 
 Stark, Joshua 460 
 
 Timlin, William H 541 
 
 Upham, Don A. J 486 
 
 Upham, Horace A. J 548 
 
 Van Dyke, John H 447 
 
 Vilas, Edward P 314 
 
 Whiton, Edward V 92 
 
 Winkler, Frederick C 438 
 
PERSONAL INDEX. 
 
 Abbott, Chauncey • 251 
 
 Abbott, Gregory & Pinney 251,439 
 
 Agry, David 86 
 
 Aldrich, Owen 84 
 
 Arnold, Jonathan B., 67, 80, 81, 83, 94, 
 
 106, 111, 116, 169, 170, 220, 226, 307, 338, 
 
 339, 340. 343, 389 (Biography 392-399), 
 
 413, 430. 
 
 Atwood, David 305 
 
 Austin, Robert N 526, 615 
 
 Austin & Fehr 527 
 
 Austin & Hamilton 527 
 
 Austin & Pereles — .- 615 
 
 Austin, Pereles & Johnson 391, 615 
 
 Austin cS; Runkel 526 
 
 Austin, Runkel & Austin 526 
 
 Bailey, Joseph 66 
 
 Bailey, W. F 308 
 
 Baird, Henry S....56, 67, 60, 61, 66, 67, 80, 82 
 Baker, Charles M., 160, 283, 284, 344 (Biog. 
 
 351-352), 377. 
 
 Baker, Edward D 271 
 
 Baldwin, A. C 363 
 
 Ball, H. J 289 
 
 Banks; William H 67 
 
 Barber, J. Allen 307, 320, 533, 555 
 
 Barden, L. W 289 
 
 Barns, Caleb P 160 (Biog. 360) 
 
 Barstow, WilUam A.... 178, 386, 402, 491, 542 
 
 Bartlett, W. P 331 
 
 Bashford, Coles 178, 205, 402, 491 
 
 Bashford, R. M 290 
 
 Bates, A. C 234 
 
 Beale, Samuel "W 268 
 
 Benedict, Curtis T....S43 (Biog. 516-520), 588 
 
 Benedict & Morsell .518 
 
 Bennett, C. W 370 
 
 Bennett, John R 227, 234, 244, 269, 315, 344 
 
 Bennett, Cassoday & Gibbs 231 
 
 Berryman, John R...281, 289, 290, 294, 306, 309 
 
 Biddlecome, William R 104, 113 
 
 Bingham, J. M 315, 320 
 
 Black, H. Campbell 306 
 
 Black, Jeremiah S 406 
 
 Blair, A. M 205,207 
 
 Blanchard, H. H 234 
 
 Blodgett, Henry W 373 374 
 
 Bloodgood, Francis, Sr 416, 432 
 
 Blount, Mrs. Ulric S 307 
 
 Blossom. Levi 577 
 
 Bond, Jonah 86 
 
 Booth. Sherman M., 28, 29, 30, 31, 32, 36, 
 
 135, 136, 137, 138, 139, 143, 177, 308, 430. 
 
 Botkln, Alexander 86 
 
 Bottum. "Elias, H (Biog. 528-530), 543 
 
 Bottum & Howard 529 
 
 Bowen, E. B t. 107 
 
 Bowman, George 83 
 
 Brazee & Austin 526 
 
 Breed, Allen O. T 83 
 
 Brigham, Jerome R,, 85, 86, 268, 343, 479, 
 
 549, 550 (Biog. 571-572), 610. 
 
 Bristol, Charles S 86 
 
 Brooks, Prank 234 
 
 Brown, James S., 338, 339 (Biog. 399-400), 430 
 
 Brown. Samuel 83 
 
 Brown & Ogden ." 338 
 
 Brownson, Charles A 246 
 
 Brunson, Alfred 86 
 
 Bryaijt, Edwin E., 78, 95, 97, 102, 109, 110, 
 
 124, 126, 164, 165, 203. 251, 263, 289, 290, 
 
 297, 300, 301, 303, 304, 309, 31S, 320, 329, 
 
 331, 507. 
 
 Bullard. E. F 522 
 
 Bullock, W. R.- 391 
 
 Bunn. Romanzo 314 
 
 Burchard. George W 236 
 
 Burke, J. F 343 
 
 Burnell, George W .'. . .302, 303 
 
 Burnett, Thomas. P 66, 67, 299, 300 
 
 Burnes, E. B 533 
 
 Burns, Timothy 283 
 
 Butler, Ammi R. R.; 107, 186, 320. 338, 339, 
 
 340, 343, 395 (Biog. 412-415), 416. 440, 479' 
 
 484. 
 
 Butler, William T 334 
 
 Butler & Buttrick 415 5515 
 
 Butler, Buttrick & Cottrlll 335' 454 
 
 Butler & Cottrill ' ^jg 
 
 Butler, Davis & Flanders 484 
 
 Butterfleld, Consul W 5(3 jgg 
 
 Butterfield, Justin ' gg 
 
 Campbell, William gg 
 
 Card, Varnum J 55 57 
 
 Carpenter, C. N '574 
 
 Carpenter, Ed. P 234 
 
 Carpenter, Jairus H., 100, 206, 288 289 320 
 
 329. 331. 
 Carpenter, Matthew H., 103, 106, 116 191 
 
 192, 220. 226, 227, 235, 272, 273, 307^ 308 
 339, 340, 393 (Biog. 400-412), 454, 455 48i' 
 494, 552. ' ' ' 
 
PERSONAL INDEX. 
 
 Carpenter & Murphey 524 
 
 Carpenter & Smith 515 
 
 Carpenter & Smiths 524, 569 
 
 Carter, A. M 121 
 
 Carter, George B 298, 533 
 
 Carter, W^alter S 297, 484 (Biog. 492-497) 
 
 Carter, William E., 207, 233, 289, 450 (Biog. 
 532-536), 575, 582. 591 
 
 Carter & Burns 534 
 
 Carter & Davis 484 
 
 Carter, Pitkin & Davis 494 
 
 Carter & Whipple 531 
 
 Carter, William E. & George B 533 
 
 Gary, Alfred L., 343, 415, 477 (Biog. 507-510), 
 
 609. 
 Cary, John W., 320, 344, 416, 423, 425 (Biog. 
 476-482), 508, 509, 609. 
 
 Cary, J. W. & A. L 508 
 
 Cary & Pratt 338 
 
 Cassoday, Eldon J .'. . .244 
 
 Cassoday, John B., 1, 5, 224, 230 (Biog. 
 230-246), 261, 269, 309, 310, 331, 344, 472. 
 
 Cassoday & Carpenter 231 
 
 Cassoday & Merrill 231 
 
 Cate, G. W 307 
 
 Catlin, John 66, 68 
 
 Cavanagh & Fisher 361 
 
 Chandler, Daniel H....85, 268, 299 (Biog. 442) 
 
 Chapin, Alfred L 430 
 
 Chapin, Emmons E., 415, 416, 423 (Biog. 
 603-605). 
 
 Chapin, Dey & Friend 598 
 
 Chapman, George W 615 
 
 Chapman, William W 68 
 
 Chatneld, Andrew G 86 
 
 Churcli, L. C 607 
 
 Cleary, Thomas L, 533 
 
 Clementson, George B 310 
 
 Clough, S. H 320 
 
 Cogswell, John B. D 338, 339, 343 
 
 Cole, Orsamus, 31, 32, 45, 49, 86, 94, 95, 104, 
 108, 109, lU (Biog. 112-121), 130, 151, 156, 
 181, 182, 186, 189, 191, 204, 211, 219, 227, 
 228, 230, 236, 237, 244, 249, 252, 268, 269, 
 270, 271. 
 
 Collins, Alexander!. 86, 121, 277 
 
 Collins, James 282 
 
 Colman, Elihu 205, 331 
 
 Conger, H. S 231 
 
 Conover, Frederick K 268, 300 
 
 Conover, O. M 268,300 
 
 Cook, A 107 
 
 Cook, A. G 320 
 
 Coon, S. Park (Biog. 442-443), 431, 542 
 
 Coon & Hunter 441 
 
 Cooper, Henry A (Biog. 362), 375, 378 
 
 Cooper, Simmons, Nelson & Walker, 362, 
 375, 377, 378. 
 
 Corson, Dighton 308 
 
 Cothren, Montgomery M 86, 114, 123, 283 
 
 Cotton, L. H 139, 430 
 
 Cottrill, Jedd P. C, 206. 288 (Biog. 415-421)', 
 477, 508. 
 
 Cottrill & Cary 415,508 
 
 Cottrill, Cary & Hanson 415 
 
 Cotzhausen, Fred W. von 340, 343, 423 
 
 Cotzhausen, Smith, Sylvester & Scheiber, 
 522. 
 
 Cowdery, Lyman 86 
 
 Crabb, George W 113,270 
 
 Cramer, Eliphalet 83, 434 
 
 Crandall, Paul 283 
 
 Crawford, Samuel, 30, 86, 107 (Biog. 108- 
 109), 111, 114, 268, 430. 
 
 Crocker, Hans 66, 80, 82, 340, 444 
 
 Cross, James B 283, 339 
 
 Cross, Nelson 338 
 
 Culver, Amos F 86 
 
 Dallam. James B 66 
 
 Daniels, Lyman J 66 
 
 Davis, DeWitt (Biog.' 4S3-4X6), 494, 
 
 Delany, John 86 
 
 Dennis, William M.; 283 
 
 Deseelhurst, Justus 66 
 
 Dewey, Nelson 114, 490 
 
 Dickey, G. H 358 
 
 Dixon, Luther S., 31, 32, 33, 49, 71, 116, 118, 
 119 (Biog. 121-133), 166, 181, 22.'i, 268, 301, 
 315, 469. 
 
 Dixon, Hooker, Wegg & Noyes 124 
 
 Dodge, Henry 66, 71, 393 
 
 Dodge, Joshua E 350 
 
 Doolittle, James R., 98, 30S, 344 (Biog. 345- 
 351), 352, 358, 403, 477. 
 
 Doolittle, James R., Jr 349 
 
 Doolittle & McKey 349 
 
 Doolittle, McKey & Tolman 349 
 
 Doolittle & Norton 349 
 
 Doolittle. Palmer & Tolman 349 
 
 Doolittle & Son. J. R 349 
 
 Doty, James Duane 66, 74, 77 
 
 Downer, Jason, 45, 119, 148, 153 (Biog. 154- 
 158), 268, 383. 
 
 Druecker, John 43, 454 
 
 Drummond. Thomas 129, 276 
 
 Dunn, Charles. 66, 67 (Biog. 68-77), 87, 118, 
 123, 244, 488. 
 
 Dunn, Francis J 67, 86, 109 
 
 Dunn & Crawford IM 
 
 Dunwiddie, B. F 234 
 
 Dyer, Charles E 114, 115, 117, 126, 246, 370 
 
 Eastman, Ben C , 
 
 Eaton, Parley 86, 103 
 
 Edgerton, Benjamin H 83 
 
 Elderkin, Edward 
 
 Eldredge, Barnabas B 
 
 Eldredge, Charles A 
 
 Elliott, Hickox & Groth 597 
 
 Elmore, Andrew B 
 
 Ely, George B 
 
 86 
 
 234 
 ,114 
 
 79 
 
PERSONAL INDEX. 
 
 Ettiinons, Norman J 338, 339, 340, 430, 449 
 
 Emmons, T. J 234 
 
 Emmons & Van Dyke 449, 552, 581 
 
 Emmons, Van Dyke & Hamilton.... 389, 449 
 
 Bngel, Peter H 66 
 
 Enos, Jacob J 107 
 
 Erwin & Benedict 588 
 
 Erwin, "Wheeler & Wheeler 588 
 
 Estabrook, Charles B., 207, 298 (Biog. 590- 
 
 592). 
 
 Estabrook & Walker 591 
 
 Estabrook, Walker & Baensch 591 
 
 Evans, Enoch Webster 86 (Biog. 365) 
 
 Evans, Lewis M 477 
 
 Paben, Vincent H 415 
 
 Pairohild, H. O 368 
 
 Parr, A. W : 107, 477 
 
 Farwell, L. J 346 
 
 Fehr, Herman 343 
 
 Felkers, Goldberg & Aarons 583 
 
 Pelker, Goldberg & Pelker 583 
 
 Penton, Daniel G 66, 67 
 
 Pethers, Ogden H 234 
 
 Field, H. H 479 
 
 Field, Pleasant 83 
 
 Pinch, Asahel, Jr., 188, 339, 340, 422, 430, 
 
 431, 432, 433, 437 (Biog. 443-447), 473. 
 
 Finch, Benoni W 83 
 
 Pinch, Henry M., 422, 432, 433, 437, 444 (Biog. 
 
 470-476). 
 
 Pinch & Lynde 96, 340, 431, 471, 522 
 
 Pinches, Lynde & Miller, 338, 340, 432, 433, 
 
 444, 471, 494, 522. 
 
 Finch, Matt. H 339, 340 
 
 Pish, Prank M (Biog. 357-358), 609 
 
 Pish, J. J 479 
 
 Pish, John K 607 
 
 Pish, John T., 247. 344, 357, 358, 370, 509, 524 
 
 (Biog. 606-611). 
 
 Pish & Gary 550, 609, 610 
 
 Pish, Gary, Upham & Black. 492, 507, 550, 
 
 607, 610. 
 
 Fish, Dodge & Pish 358, 609 
 
 Fish, J. T. & P. M 358 
 
 Pish & Lee 357, 609 
 
 Fisher, Peter 361 
 
 Flanders, James G 343, 423, 484, 530, 543 
 
 Flanders & Bottum 525, 530, 543 
 
 Plett, David H (Biog. 365-366), 368 
 
 Plett, William H 291 
 
 Plett & Wentworth 366 
 
 Flower, James M 251 
 
 Prank, Michael 283, 284, 285 
 
 Praser, William A 83 
 
 Prazer, William C., 66, 67, 68 (Biog. 79-84), 
 
 Friend, J. E 
 
 Prisby. Leander P. 
 Frost, Edward W... 
 Fuller, Percival S.. 
 
 343 
 
 .320, 324 
 
 567 
 
 366 
 
 Puller, S. S. N 86 
 
 Puller & Dyer 246, 370 
 
 Puller & Harkness 246 
 
 Gale, George 86, 159, 278, 304 
 
 Gardner, William N 80, 82 
 
 Gardner, William W .'. 66 
 
 Garland, B. S 135, 178 
 
 Gary, George 304, 310, 311 
 
 Gehon, Francis 66, 67 
 
 Gill, Charles R 323, 324 
 
 Gillett, Jamgs M 86, 206 
 
 Gillett, Conklin & Pier 600 
 
 Gillett & Pier 600 
 
 Gillett, Pier & Bass 600 
 
 Gilson, Franklin L 233 
 
 Glover, Joshua.... 28, 30, 135, 136, 137, 139, 177 
 
 GofE, Guy D 543, 617, 619 
 
 Goodell, Lavinia 198 
 
 Goodjpin, George B 518, 526, 588 
 
 Goodwin & Austin 526 
 
 Goodwin & Benedict 518 
 
 Gorshne, William R 205 
 
 Graham, Wallace W 86 
 
 Graham, Wilson 339, 340, 549 (Biog. 577) 
 
 Graham & Koefller 577 
 
 Greene, George G 329, 331 
 
 Gregory, Charles N 331 
 
 Gregory, J. C 231 
 
 Grosscup, Peter S 331 
 
 Haight, John T 83 
 
 Haines, Elijah M 297 
 
 Halsey, L. W 343 
 
 Hamilton, Charles A.. 339, 383, 388 (Biog. 
 
 389), 449. 
 
 Hamilton, Charles H 526, 527 
 
 Hamilton & Son, P 594 
 
 Hand, B. B 368 
 
 Hand, Elbert 246, 360 (Biog. 366-369) 
 
 Hand, E. O. & B. B 368 
 
 Hand & Plett 366 
 
 Hansen, Otto R 343, 598 
 
 Hanson, Burton, 343, 415, 416, 479, 480, 481, 508 
 Haring, Cornelius I., 331, 337, 343 (Biog. 
 
 566-568). 
 
 Haring & Frost 567, 568 
 
 Harkness, Robert 246, 344, 608 
 
 Harmon, Calvin 83 
 
 Harper, John P 537 
 
 Harvey, Leslie C 291 
 
 Harvey, Louis J 456 
 
 Hastings, S. D., Jr 320, 456 
 
 Hawley, Cyrus 82, 84, 430, 549 
 
 Hayden, Henry H 316, 320 
 
 Hayes, Hiram 298 
 
 Hazelton, Gerry W., 126, 411, 467, 471 (Biog. 
 
 577-578). 
 
 Head, O. S (Biog. 369-370), 579 
 
 Head & Quarles 579 
 
 Henderson, Horace P 306 
 
 Hendrix, P. N 234 
 
PERSONAL INDEX. 
 
 xui 
 
 Herdegen, Adolph 567 
 
 High, James L 300 
 
 Hilton, John P 82 
 
 Hinraan, Samuel 83 
 
 Hinton, John W 179 
 
 Hood. Thomas 430 
 
 Hooker, David G 435 (Blog. 468-470) 
 
 Hooker & Spankenberg 338 
 
 Hooper, Moses 126 
 
 Hopkins, James C 314 
 
 Horn, F. W 461 
 
 Horner, John S 67, 80 
 
 Hover, Thomas 574 
 
 Howard, Samuel 306, 416, 419 
 
 Howard, Walter E 529 
 
 Howe, James H 107, 552, 560 
 
 Howe, Timothy O., 85 (Biog. 105-106), 114, 
 
 116, 123, 221, 226, 307, 387, 393, 398, 403. 
 
 Hoyt, Charles M 541 
 
 Hoyt, Frank M 393 <Biog. 541-542) 
 
 Hubbard, Henry M S3 
 
 Hubbell, Levi, 85, 87 <Biog. 96-98), 99, 110, 
 
 111, 169, 170, 171, 173, 175, 205, 307, 338, 
 
 339, 343, 383, 384, 387, 393, 396, 542, 560. 
 
 Hudd, Thomas R 126, 186, 289, 315 
 
 Hudson, S. A 234 
 
 Hunter, Charles F (Biog. 542-43), 617, 619 
 
 Hunter, Edward M 542 
 
 Hurley, M. A 320 
 
 Hustis, John 83 
 
 Hyer, Nathaniel F 82 
 
 Hyzer, B. M 234 
 
 Irwin, David, 56, 59, 66, 67, 68 (Biog. 77-79) 
 
 488. 
 
 Jackson, A. A 126, 320, 331 
 
 Jackson, H. B 315, 320 
 
 Jackson, Mortimer M., 85, 86, 87 (Biog. 
 
 98-101). 
 
 James, Charles 441, 542 
 
 James, Norman L 233 
 
 James & Mariner 441 
 
 Jenkins, Charles E 86, 145 
 
 Jenkins, James G., 186, 187, 339, 343, 415, 417, 
 
 440, 471, 507, 524, 549. 
 
 Jenkins, John J 262 
 
 Jenkins, Elliott & Winkler 440, 549 
 
 Jenkins, Winkler & Smith 524, 609 
 
 Jenkins, Winkler, Smith & Vilas 507 
 
 Jllsun, J. B 107 
 
 Johnson, B. J 339 
 
 Johnson, Daniel H.. 156, 383 (Biog. 389-392), 
 
 471, 527. 574, 615. 
 
 Johnson & Bullock 391 
 
 Johnson & Rietbrock 391 
 
 Johnson, Rietbrock & Halsey 391 
 
 Jones, Burr W 254, '^58, 311, 331 
 
 Jones. David F 291 
 
 Jones, George W 59, 69 
 
 Jordan, Charles S....272, 273, 274, 275, 283, 284 
 Juneau, Solomon 62, 429 
 
 Keenan, Matthew 338 
 
 Kellogg, Clarence 268 
 
 Kellogg, John A 266 
 
 Kellogg, LaFayette 68, 107, 268 
 
 Kellogg, Levi H 435 
 
 Kemp, Nicholas 39, 43 
 
 Kennedy, J. H 134, 190, 397 
 
 Keyes, E. W 215, 547 
 
 Kilbourn, Byron 63 
 
 King, Rufus 110, 154 
 
 Knapp, J. Gillett 86 
 
 Knight, Herbert 343 
 
 Knight, R. K 107 
 
 Knowlton, James H., 106, 114, 116, 169, 170, 
 
 226, 307, 393. 
 
 Knowlton, Wiram So, 87 (Biog. 103-105) 
 
 Koeffler. C. A 597 
 
 Kronshage, Theodore, Jr. (Biog. 589-590), 
 
 595. 
 
 LaBoule. J. F 343 
 
 Lakin,' George W., 86, 283, 430 (Biog. 510-511) 
 
 Lapham, I. A 63 
 
 Lander, H. W 331 
 
 Linder, Usher P 168 
 
 Larrabee, Charles H., 85, 86, 87 (Biog. 101- 
 
 103), 104, 111. 
 
 Leas, Joseph 66 
 
 Lee, Alanson H 370 
 
 Lee, Chas. H (Biog. 370-371), 609 
 
 Leland, T. C 307 
 
 Lewis. Allison 107 
 
 Lewis, James T 557 
 
 Lockwood, James H 66 
 
 Longstreet, William R 83 
 
 Loop, James M 308 
 
 Losey, Joseph W 254, 257, 315, 320 
 
 Lovell, Frederick S., 67, 86, 206, 286, 287 
 
 (Biog. 371-372). 
 
 Ludwig, John C 597 
 
 Lynde. Charles J 340 
 
 Lynde, William P., 339, 340, 343, 387 (Biog. 
 
 422-427). 431, 437, 443, 444, 473. 
 
 Lyon, Jay Forrest (Biog. 372-373), 374 
 
 Lyon, Joseph F 373 (Biog. 373-375) 
 
 Lyon, William P., 114, 117, 129, 158' (Biog. 
 
 159-166). 186, 204, 215, 219, 228, 244, 250,- 
 
 253, 255. 261, 268, 269, 344, 364, 367. 
 
 Lyon & Adams 367 
 
 Lyon, Adams & Hand 367 
 
 Lyon & Son. J. F 372 
 
 MacArthur, Arthur, 43, 46, 308, 339, 340, 383 
 
 (Biog. 386-388), 455, 608. 
 
 McCallum, A 588 
 
 MoFettridge. E. C 289 
 
 McGeoch, Peter 562 
 
 McKey, Henry 349 
 
 McLean, Campbell 205 
 
 McMullen, Joseph F 304 
 
 McNab, Peter 500 
 
 McBlroy & Eschweiler 515 
 
PERSONAL INDEX. 
 
 lIcElroy & Trottman 515 
 
 Mallory, James A 479 
 
 Mallory, R B 343 
 
 Mann, Chas. D (Biog. 568-569), 574 
 
 Marchetti. Louis .266 
 
 Mariner, Ephraim, 423 (Biog. 440-441), 479, 
 
 522. 
 
 Mariner, Smith & Ordway 441, 541 
 
 Markham, George C...343, 515 (Biog. 536-538) 
 
 Markham, Henry H 537 
 
 Markham, J. D 591 
 
 Markham & Johnson 391 
 
 Markham & Markham 522 
 
 Markham, Nickerson & Harper 537 
 
 Markham & Smith 515 
 
 Marshall, Roujet DeLisle. 217 (Biog. 261- 
 
 266). 
 
 Marshall & Jenkins 264 
 
 Martin, Cornelius K..484, 588 (Biog. 605-606) 
 
 Martin, Morgan L 61,. 87, 282 
 
 Matts, Peter W 86 
 
 Maxon, Densmore W 539 
 
 May, Alpha C 388 
 
 Maynard, Everson P 83 
 
 Meggett. Alexander 329 
 
 Merrill, Willard 231, 236 
 
 Messenger, 6. B 107 
 
 Messenger, R. N 107 
 
 :tfiller, Andrew G., 67, 122, 339, 340, 428, 437, 
 
 464, 552, 560. 
 Miller, Benjamin K.. 340, 343, 416 (Biog. 
 
 428-438), 444. 
 
 Miller, Benjamin K.. Jr 422, 433, 473 
 
 Miller, George P 433 
 
 Miller, H. F 358 
 
 Miller, Noyes & Miller .:21 
 
 Miller. Noyes, Miller & "Wahl 433, 520 
 
 Mills, Joseph T 86, 533. 
 
 Mills, Simeon CS 
 
 Mitchell. Alexander 164, 434, 450 
 
 Morris, William H 343 
 
 Morrow, J. M 254, 258, 320 
 
 Morsell, Arthur L, 618 
 
 Mueller, C. H 266 
 
 Myer, William G 311, 312, 313 
 
 Mylrea, W H 266 
 
 Nagle, James 67 
 
 Nazro, John 434 
 
 Xelson, Peter B (Biog. 375), 378 
 
 Newman, Alfred W., 253 (Biog. 254-261), 265. 
 
 267, 268. 
 
 Nichols, John 234 
 
 Nickerson, Harold W 537 
 
 Noble, Morgan L 283 
 
 Noggle, David 308 (Biog. 354-356) 
 
 Nolan. Tom S 234 
 
 Noonan, J. A 500 
 
 Norcross. Pliny 234 
 
 Norris, W. H., Jr 320 
 
 Norton, Jesse O 349 
 
 Noyes, George H., 126, 331, 343, 433, 468, 
 
 471, 537. 
 
 Ogden, Louis yi 543 
 
 Ogden. Thomas L 339 
 
 Ogden & Hunter 543 
 
 Ogden, Hunter & Bottum 543 
 
 Olin, John M 237. 521, 590 
 
 Ordway, David S 343, 471, 479, 522 
 
 Orton, Harlow S., 44, 106, 116, 186, 204, 206, 
 
 207 (Biog. 213-230), 261, 263, 268, 288, 307, 
 
 327, 393, 425, 430. 499, 503. 
 
 Orton, Myron H 214, 499 
 
 Orton, Cross & Orton 499 
 
 Orton, Keyes & Chynoweth 215 
 
 Osborn, C. F 331 
 
 Paine, Byron, 29, 32, 33, 34, 42, 49, 111, 116, 
 
 119, 133 (Biog. 134-153), 154, 158, 164, 268, 
 
 339, 356, 400. 423. 
 
 Paine, Halbert E 400 (Biog. 451) 
 
 Paine, Stephen 533 
 
 Palmer, John M 349 
 
 Palmer, Henry L., 103, 308, 338, 339, 340, 366, 
 
 428, 439, 469, 471. 
 
 Palmer, ^\'alter C 366 
 
 Palmer & Gittings 366 
 
 Parkinson. A. C 288 
 
 Parks, Rufus 82, 83 
 
 Patten, l' F 234 
 
 Pease, John J. R 234 
 
 Peckham, George W 432 
 
 Peckham, Wheeler H 603 
 
 Pereles, James M 543, 615, 619 
 
 Pereles, Thomas J 543. 615 
 
 Pereles & Sons, Nath., 522, 542, 543, 615, 617, 
 
 618, 619. 
 
 Perrin. Franklin 80, 82 
 
 Phelps, M. M 234 
 
 Phillips, Erasmus D 83 
 
 Pinney, Silas U., 77, 121, 126, 205, 249 (Biog. 
 
 2.50-253), 299, 300, 301, 303, 320, 425, 442. 
 
 Pitkin Frederick "«' 469, 484, 494 
 
 Pitkin & Davis 484 
 
 Platto, J. Y. V 570, 588 
 
 Pope, Carl C ■ 331 
 
 Potter, John F 393 
 
 Pratt. Wallace 477 
 
 Prentiss, William A S3. 339 
 
 Price, W. T '.289 
 
 Prichard, M. S 234 
 
 Quarles, Charles 343, 361 (Biog. 575-577) 
 
 Quarles, Joseph V., 233, 246, 320, 331, 343, 350, 
 
 479, 576 (Biog. 578-581). 
 
 Quarles, Spence & Dyer 576, 580 
 
 Quarles, Spence & Quarles 375, 576i 580 
 
 Quarles. J. V. & C 361 
 
 Randall, Alexander V,'., 49, 102, 226, 283 
 
 307, 383 (Biog. 384-386), 393. 
 
 Randall. F 107, 603 
 
 Reed, D. A 292 
 
 Reed, Myron 33]^ 
 
PERSONAL INDEX. 
 
 XV 
 
 Reed, Parker Jl 305 
 
 Richards, John 83 
 
 Riordan. Daniel K 291 
 
 Robinson, Rix 56 
 
 Robinson, Robert 8fi 
 
 Roehr, Julius E 291 
 
 Roemer, John H (Biog. 531-532), 602 
 
 Rogers, Daniel G 569 (Biog. 572-575) 
 
 Rogers, James H 83 
 
 Rogers & Johnson 391 
 
 Rogers & Maun 568, 574 
 
 Rolette, Joseph 58 
 
 Roys, Samuel H 251 
 
 Roys & Finney 251 
 
 Rusk, Jeremiah M 233, 515 
 
 Ryan, Edward G., 29. 76, 89, 103, 106. 108, 
 114, 116. 118, 119, 144 (Biog. 166-204), 220, 
 221, 226, 230, 233, 234, 235, 244, 268, 307. 
 308, 315, 329, 330, 338, 339, 340, 364, 
 393, 395, 396, 413, 430, 453, 524, 560, 571. 
 
 Rycraf t, John 30 
 
 Sale, J. W 234 
 
 Sanborn, A. L, 251, 289, 290, 294, 331 
 
 Sanbourn, Samuel 83 
 
 Salomon, Edward, 43, 339 (Biog. 452-460), 
 
 552, 558. 
 Sanders, Horace T....170, 307 ([Biog. 375-376) 
 
 Sanderson. Edward 233 
 
 Sanderson. James 83 
 
 Scanlan, Charles M 305 
 
 Schley, Bradley G 126 (Biog. 521-522) 
 
 Sea. Sidney 86 
 
 Seaman, William H 205. 207, 328, 330 
 
 Sedgwick, George G 541 
 
 Shackelford, Barlcw 66, 2S2, 283 
 
 Sharpstein. John R.. 29. 107. 137 (Biog. 
 427-428). 
 
 Sheffield, William E 301 
 
 Sheldon, WiUiam B 83 
 
 Shepard, Charles E 302, 567 
 
 Shepard, Thomas R 302 
 
 Shepard, Haring & Frost 56S 
 
 Sholes, C. Latham 286, 292 
 
 Silverthorn, W. C 205 
 
 Simmons, James, 283, 300, 301, 302, 313 (Biog. 
 
 376-377). 
 
 Simpson, P. B 307 
 
 Sloan, A. Scott 102, 123, 278, 279 
 
 Sloan, Ira C ' 278, 279 
 
 Small, David W 383 (Biog. 388) 
 
 Smith, Abram D., 29, 30, 86, 94, 107, 108 
 
 (Biog. 110-112). 119. 123, 133. 137. 268, 
 
 300, 308, 395, 390, 471. 
 Smith, Amos A. L,., -140 (Biog. 523-525), 552 
 
 Smith, A. Hyatt 113. 2S4. 270. 272 
 
 Smith, Edwards P 441 (Biog. 522-523) 
 
 Smith. George B 86 
 
 Smith, Rufus B 594 
 
 Smith, William 66, 234 
 
 Smith, William E., 114. 184, 234, 235, 236, 409. 
 410. 
 
 Smith. William R 86 
 
 Smith. Winfleld, 126, 146, 150, 339, 453, 455, 
 456, 524 (Biog. 550-566). 
 
 Somers, Peter J 597 
 
 Spence, T. W 580 
 
 Smith & Palmer .' 470 
 
 Smith & Salomon 453, 455, 570 
 
 Smith & Stark 552 
 
 Smith, Winfleld & A. A. L 524, 552 
 
 Spencer, E. A 298 
 
 Spooner, John C 297, 298, 315, 331 
 
 Spooner, Philip L, 268, 300 
 
 Spooner, Roger C 266, 288, 299 
 
 Spooner & Bardeen 266 
 
 Stark. Joshua. 61. 81. 339, 343, 388, 389, 396, 
 397 (Biog. 460-465), 479, 526, 5E2, 562, 567. 
 
 Starr, Merritt 302 
 
 Story, Augustus 82, 282, 283 
 
 Stow; Alexander W., ,S,j, 8C (Biog. 87-92), 
 96. 220, 571. 
 
 Street, William 234 
 
 Strong, Marshall M., 82. 86, 282, 283, 285. 
 
 244 (Biog. 379-381). 
 Strong. Moses M.. 73. 75, 76, 86, 104. 224, 
 319, 320, 321, 328, 330, 379, 394, 400, 480. 
 
 Sutherland, George E 206, 416 
 
 Sutherland, George G 234 
 
 Sutherland, J. G 309 
 
 Sweet, Alamon S3 
 
 Tarrant, Warren D 590 (Biog, 595-596) 
 
 Tarrant & Kronshage 595 
 
 Tarrant, Kronshage. McGovern & Diel- 
 
 mann, 595. 
 Taylor. David, 119, 186 (Biog. 204-213). 215. 
 246. 268. 286. 287, 288, 293, 294, 315, 320, 327, 
 372, 420, 427. 
 
 Taylor, H. J 546 
 
 Taylor, James B 126 
 
 Taylor & Hiller 204 
 
 Tenney, H. A 305 
 
 Tenney, Henry W 86 
 
 Thomas, O. B 315 
 
 Thompson, A. M.'. 491 
 
 Thornton, W. W 306 
 
 Tiedeman, C. G 306 
 
 Todd, Samuel J 206, 286, 257, 372 
 
 Tolman. Edgar B 349 
 
 Toohey, Doerfler & Gllmore 594 
 
 Toohey , Morse & Gilmore 594 
 
 Towne, J. P 26G 
 
 Tucker, LeRoy 278 
 
 Turner, A J 233, 591 
 
 Turner, H. G. & W. J 541 
 
 Turner, T. G 167 
 
 Tweedy, John 340 
 
 Tweedy, John H 81, 82 
 
 Upham, Don A. J., 339 (Biog. 486-492), 548, 
 577. 
 
XVI 
 
 PERSONAL INDEX. ' 
 
 Upham. Horace A. J., 343, 492 (Biog. 548- 
 550), 571. 
 
 Upham & Graham 577 
 
 Van Buskirk & Hayes 369 
 
 Van Dyke, George D., 343, 450, 534, 575 
 
 (Biog. 581-582). 
 
 Van Dyke, John H 339 (Biog. 447-451) 
 
 Van Dyke, William D 450, 634, 675, 581 
 
 Van Dyke & Emmons 448 
 
 Van Dyke & Van Dyke 632, 575, 581 
 
 Van Dyke & Van Dyke & Carter, 450, 532, 
 
 534, 575. 582. 
 
 Van Valkenburgh, Frank B....329, 331, 597 
 
 Velten, Jacob 435 
 
 Vilas, Edward P., 314, 343 (Biog. 506-507), 524 
 
 Vilas, Levi B 261, 506 
 
 Vilas, Levi M 327 
 
 Vilas, "William F.. 182, 186, 206, 207, 224, 
 
 ?88, 289, 301, 315, 319, 320, 331, 480, 481, 507. 
 
 Vilas & Bryant 607 
 
 Vilas & Remington 261 
 
 Vilas, Roys & Pinney 251 
 
 Wahl, George H 433 (Biog. 621-622) 
 
 Wahl. Jacob 520 
 
 Wakeley, E 363 
 
 Walker, George H 429 
 
 Walker, Isaac P 168 
 
 Walker, Brown & Wahl 521 
 
 Waldo, Otis H., 338, 339, 343 (Biog. 451-452), 
 
 554, 557. 
 
 Wallber, Emil 621 
 
 V/alworth, Clinton 83 
 
 Warvelle, George W 306 
 
 Washburn, C. C 71, 109, 114, 348, 434 
 
 Washburne, Blihu B 46, 233 
 
 Watkins, Charles K 137 
 
 Webb, Charles M 260, 315, 515 
 
 Weeks, T. D 320 
 
 Weil, Paul M 546 
 
 Wells, C. K '. 339, 549, 550, 571 
 
 Wells, Daniel 562 
 
 Wells. Horatio N., 67, SO, 82, 83, 99, 339, 340, 
 
 444. 
 
 Wells & Brighara 649 
 
 Wells, Brigham & Upham, 549, 550, 571, 610 
 
 Wells, Crocker & Finch 340, 444 
 
 Wentworth, John T., 356 (Biog. 356-357), 377 
 
 West, F. H 689 
 
 West, George S 83, 430 
 
 Wetherby, Lucien P 114 
 
 Wheeler, B 307 
 
 Wheeler, L. C 588 
 
 Wheeler, L. G 688 
 
 Wheeler, N. W .262 
 
 Wheeler, William G 291 
 
 Wheeler & Marshall v 262 
 
 Whipple, William G 494 (Biog. 531) 
 
 Whitehead, John M 291 
 
 Whiton. Daniel G 92 
 
 Whiton, Edward V., 29, 30, 78, 85, 86, 87 
 
 (Biog. 92-96), 99, 101, 104, 107, 108, 115, 
 
 118. 119, 121, 122, 244, 268; 272, 276, 276, 
 
 277, 278, 282, 344, 345. 
 
 Whiton, H. K 107 
 
 Wight, William W., 303, 305, 313, 343. 428 
 
 (Biog. 504-506). 
 
 Williams, Amzy L 86 
 
 WilUams, W. C 343, 526, 598 
 
 Wilson, A. O 234 
 
 Wilson, William K 97, 169, 396 
 
 Winans, John 234 
 
 Winsor, H. S 608 
 
 Winkler. Frederick C, 27, 111, 126, 205, 233, 
 
 320, 343 (Biog. 438-440), 524. 
 Winkler, Flanders, Smith, Bottum & 
 
 Vilas, 440, 506, 525. 592. 
 
 Winkler, Smith & Vilas 525, 630 
 
 Winslow, John B. (Biog. 246-250), 344, 350, 
 
 358, 481, 680. 
 
 Woodle, Isaac 95, 107 
 
 Woodman, Aaron 83, 84 
 
 Woolworth, James M 363 
 
 Wyman & Johnson 391 
 
HISTORY OF THE 
 
 Bench and Bar of Wisconsin 
 
 CHAPTER L 
 
 OUR MAGNA CHARTA AND SOME OF THE STEPS LEAD- 
 ING TO ITS ESTABLISHMENT. 
 
 BY JOHN B. CASSODAY. 
 
 The most important things in Hfe are generally the most common. 
 The most common things in life are generally the least appreciated. 
 Thus seed time and harvest, summer arid winter, day and night, earth 
 and air, fire and water, are indispensable to happiness, and yet com- 
 paratively few who enjoy, daily return grateful acknowledgment to the 
 munificent Giver. 
 
 ' In a limited sense, the same is true in respect to some things insti- 
 tuted by men. Among such institutions, none stand out more promi- 
 nently than government; and yet, comparatively few fully appreciate 
 that the absence of government implies the presence of confusion, dis- 
 order, anarchy, terror anid unrestrained crime. 
 
 The experience of the ages has demonstrated the necessity of some 
 kind of government. This has led to- the assertion, in many different 
 forms, to the effect that any government, even the most arbitrary and 
 corrupt, is better than no government. This necessity is the result of 
 the sayagery and brutality so common among unregenerated, unrefined, 
 uneducated, uncivilized humanity. Actuated by envy, the first born of 
 the race deliberately murdered his own brother, because he was better 
 than himself. The family of Jacob must have been as well trained as 
 
6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 any in his section of the country, and yet for a supposed personal ad- 
 vantage, eleven of his sons sold one of their brethren into cruel slavery. 
 If diseases are the result of sin, then their prevalence and variety sug- 
 gest a multitude of sinners. From the beginning of the race in every 
 generation and in every climate, down toi the present moment of time, 
 the unrestrained passions and animalism of mep have been productive 
 of sorrow, pain, sufifering and death — not only in countries where bar- 
 barism has reigned, or anarchy has become triumphant, but, at times, 
 in the most civilized and refined nations of the earth. In the infancy 
 of the race, there were but few to' govern and they were more or less 
 scattered; and there was only occasionally one with any capacity for 
 government. As the people multiplied, government of some kind was 
 absolutely essential to secure order and the lives, the liberty and the 
 property of the weak and innocent, fro'm^ those who were strong, brutal, 
 desperate and wicked. In studying governmental evolution, it is, in 
 the language of a recent writer, "a prevalent error ... to over- 
 estimate intelligence, and under-estimate instinct." 
 
 A government may have originated with a single individual — a 
 select few or a convention of many. It may have been instituted by 
 gradual reconstruction, or by revolution, or even by usurpation — and 
 then maintained by military despotism — yet the necessity for its con- 
 tinuance until supplanted or superseded by some other government, 
 is imperative. 
 
 Fortunately, most of us have inherited a government already made. 
 Some have it by adoption. As American citizens, we may be prone 
 to unduly praise our system of government, and hence should proceed 
 with caution. The European statesmen and political writers have no 
 such prejudice. More than fifty years ago, and while men were held 
 in bondage in half the states of our Union, De Tocqueville paid a glow- 
 ing tribute to our government— especially its judicial department— and 
 ■particularly referred to the centralization of national power as being 
 balanced by the decentralization of national administration. 
 
 Mr. Bryce frankly says: "The constitution (of 1788) deserves the 
 veneration with which the Americans have been accustomed to regard 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 7 
 
 it. . . . After all deductions, it ranks above every other written 
 constitution for the intrinsic excellence of its scheme, its adaptation 
 to the circumstances of the people, the simplicity, brevity and precision 
 of its language, its judicious mixture of definiteness in principle with 
 elasticity in details." 
 
 Mr. Gladstone says that, "as the British constitution is the most 
 subtle organism which has proceeded from progressive history, so the 
 American constitution is the most wonderful work ever struck off at 
 a given time by the brain and purpose of man." With such acknowl- 
 edgments, coming from such sources, it would ill become an American 
 citizen to under-rate its intrinsic excellence and efficiency. But that 
 great English statesman is too familiar with the elements of the Ameri- 
 can government to mean, by the words last quoted, that this nation 
 was conceived and born in a day, or that it emanated wholly from the 
 brain of one man or one body of men. On the contrary, he undoubted- 
 ly agrees with his liberal friend, Mr. Bryce, in saying: "There is little 
 in that constitution that is absolutely new. There is much that is as 
 old as Magna Charta," Or, as Mr. Webster expressed it in his great 
 argument in the Rhode Island case: "Our American liberty . . has 
 an ancestry, a pedigree, a history. Our ancestors brought to this con- 
 tinent all that was valuable, in their judgment, in the political institu- 
 tions of England, and left behind them all that was without value, or 
 that was objectionable." In other words, whatever may be our views 
 respecting animal evolution, all thoughtful and discriminating students 
 of history must agree that there have been running through the ages 
 moral evolution, religious evolution, social evolution, and governmental 
 evolution, and that the American Republic, as it now stands, is the 
 highest governmental result of all such evolutions. 
 
 But there can be no such thing as government without the right 
 to govern. "There is and must be in all" forms of government, said 
 Blackstone, "a supreme, irresistible, absolute, uncontrolled authority 
 in which . . . the rights of sovereignty reside." The same author 
 tells us, in efifect, that political writers of antiquity allowed only three 
 regular forms of government; and that all others were modifications 
 
8 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 of those three: i. Democracy, where "the sovereign power is lodged 
 in the aggregate assembly consisting of all the free members of a 
 community;" and hence, where public virtue and good intentions are 
 most likely to be found; and therefore it is "usually the best calculated 
 to direct the end of the law," but "frequently foolish in their contriv- 
 ance, and weak in their execution." 2. Aristocracy, where the sover- 
 eign power "is lodged in a council, composed of select members;" and 
 hence, there is more wisdom to invent the means for carrying the de- 
 sired end into execution; "but there is less honesty than in a republic, 
 and less strength than in a monarchy." 3. Monarchy, where the sover- 
 eign power is lodged in a single person ; and, hence, most powerful for 
 carrying its mandates into execution; "but then there is imminent 
 danger of his employing that strength to improvident or oppressive 
 purposes." 
 
 But the governments of our times are of many varieties. In most, 
 the governing power seeks its own advantage merely, instead of the 
 advantage of the whole state' — which, according to Aristotle, marks the 
 distinction between the bad and the good. Obviously, that form of 
 government is best which stimulates and secures the greatest amount 
 of intelligence, wisdom, industry, honesty, public virtue, liberty, pa- 
 triotism, benevolence and charity to the unfortunate, with sufficient 
 strength and concentration of power to maintain order and domestic 
 tranquillity, and at the same time command respect among the o-reat 
 powers of the earth. 
 
 Such being the purposes of government, it is very manifest, that 
 the government and people of any country should be adapted to each 
 other. Thus a country in which a large proportion of the people are 
 intelHgent, virtuous and wise, may, and should have a higher, and hence 
 a more compHcated system of government, than a country in which the 
 great mass of the people are ignorant, vicious and foolish. It is still 
 true that ignorance and stupidity sometimes are found in houses of 
 wealth and royalty, as well as in the abodes of poverty and helplessness 
 
 Only a few years ago it was found on attempting to build a railway 
 in one of our western territories, that some of the inhabitants were 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 9 
 
 SO ignorant that they had never seen or heard of a railroad train or 
 a railroad; and had no conception of their operation. If such ignorance 
 is possible in this last half of the nineteenth century, here in the United 
 States, where religion is unrestricted, where common schools are free, 
 where speech is free, and where the press is free and newspapers are 
 spread broadcast throughout the country daily, then what must have 
 been the ignorance of the great mass of the people during the forty 
 centuries preceding the Christian era, and even since, especially before 
 the art of printing was discovered. 
 
 Had one language always pervaded the whole earth, universal ig- 
 norance would, probably, have been more likely to prevail, but the con- 
 fusion of tongues at Babel and the diversity of languages which fol- 
 lowed, compelled men to study in order to communicate with each 
 other. 
 
 True, during the dark periods mentioned, intellectual and spiritual 
 lights of more or less brilliancy appeared from time to time on the 
 Nile, in northern Africa, along the Euphrates and the Tigris, in Pales- 
 tine, Macedonia, Greece, Rome and other places — nevertheless, the 
 great mass of men must have been unfit to perform any of the functions 
 of government, except, perhaps, to pay tribute and perform services in 
 peace and war. 
 
 Under such conditions the only government possible was necessari- 
 ly simple in its form- and direct in its operations. Obviously, the most 
 simple government is the arbitrary rulership of a single individual, 
 whether he is called patriarch, chief, governor, king or monarch. 
 
 But a single individual could never govern a vast multitude, occupy- 
 ing an extensive country, except through subordinates. The use of 
 such agencies necessarily developed the agents, and frequently they 
 became superior — morally and intellectually — to the rulers themselves. 
 Such schools of experience tended from time to time to influence and 
 control rulers; and even to modify and change forms of govei-nmenf; 
 and hence, oligarchies, aristocracies, and democracies in the fullness of 
 time and in certain places, made their appearance. 
 
 But as the boy never learns to swim until he has been allowed to 
 
lO HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 go into the water, so the mass of the people in olden times remained 
 ignorant of the functions of government, because they had no partici- 
 pation therein, except as subjects rendering service or paying tribute. 
 
 Such oligarchies, aristocracies and democracies were generally de- 
 veloped on the shores of navigable waters, or where commerce had 
 otherwise been established. Nevertheless, they were simple in their 
 conceptions, and rude in their methods of execution. But it has always 
 been found difificult to govern a great multitude of people, even though 
 excessively ignorant, by mere brute force; and so the theocratic prin- 
 ciple early made its appearance in Africa, Asia and Europe. It was 
 not the personality of Moses or Joshua that controlled the wandering 
 Israelites, but the voice of God back of them — the history of Joseph, 
 the dividing of the waters, the safe deliverance, the cloud by day and 
 the pillar of fire by night, the water from the rock, the fire in the bush, 
 the manna in the wilderness, the flowing back of the waters of the 
 Jordan. 
 
 The one man who chased a thousand was not alone. The monarchy 
 of wicked Saul seems to have been divinely appointed, but it was also 
 divinely improved by David. Solomon prayed for "wisdom and knowl- 
 edge" to govern his kingdom, and the prayer was granted, but at times 
 he lacked the requisite force of character to govern himself. 
 
 Alexander at the head of his army and with conquest in his heart 
 would demolish Jerusalem, but the appearance of the high priest on 
 the border of the city made him conscious of his own inferiority, and 
 he instinctively bowed to the earth in humble reverence of a power 
 higher than armies. 
 
 Dogs were worshiped by the Egyptians, but held in contempt by 
 the Jews. 
 
 Plato's communistic republic was wisely rejected by Aristotle and 
 would certainly be unsuitable for the English people at the present 
 time, and much more so for the American. In the time of the Cssars' 
 Roman citizenship was a good thing to have, especially for one away 
 from home and in trouble, but it was too exclusive; and not of the kind 
 to form the basis of a republic like these United States. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. II 
 
 The fundamental conditions for the coming republic, with equal 
 rights secured to all before the law, were education and moral and 
 social culture of the great mass of the people, and graded participation 
 in the functions of government. To effectuate such a purpose, radical 
 changes were essential in the prevailing ethics of the times— the re- 
 lations of men to their Creator, the relations of men to each other, the 
 relations of men to the church and to the government. 
 
 But the requisite seeds were- sown in Palestine, along the banks of 
 the Jordan, on the shores of Gennesaret, and in and about Jerusalem. 
 The passions and brutality of men were to be supplanted by spiritual 
 agencies. Ambition for ecclesiastical glory was to be superseded by 
 a love of sacrifice for the poor and the needy. Ambition for civil magis- . 
 tracy and temporal power was to be subordinated to that patriotism 
 and philanthropy which would die for country and for fellow man. 
 Egoism and selfishness were in due time to yield to Altruism and chari- 
 ty. The word neighbor was to have a new significance; and the golden 
 rule of doing unto others as we would have them do unto us, was, in 
 due course of time to be translated into equality for all men before the 
 law and thus to become the rock upon which the coming republic was 
 to be founded. 
 
 But these principles were not to become dominant through arbi- 
 trary enforcement by civil or ecclesiastical power; but by voluntary 
 acceptance through the persuasive influence of the home, the church, 
 the school, the teachings of patriotic statesmen and social and Christian 
 philosophers. 
 
 These germinal principles in the hearts of men gradually tended to 
 transform the civilization of Europe and the world. 
 
 To trace their operation and the several advances made would be 
 to give in detail the history of nations, of wars and of the feudal system, 
 the history of municipalities, the history of the corporate church with 
 functions and revenues of its own, the history of Christianity, the history 
 of theocracy, monarchy, aristocracy and democracy — and how the 
 principles of each of these resisted, crossed, jostled and modified each 
 other. Of course the advance was irregular and at times spasmodic, 
 
12 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 but when numerous centuries are contemplated as a whole, we discover 
 that in some way the old barbarian monarchies were superseded by- 
 religious monarchies, and religious monarchies by imperial monarchies, 
 and imperial monarchies by limited or constitutional monarchies, and 
 "constitutional monarchies by oligarchies or aristocracies, and aristocra- 
 cies by pure democracies, and democracies by firmly established con- 
 stitutional republics. 
 
 War is always cruel, but at times it is the only way of opening the 
 door to knowledge and breaking down the partition walls of bigotry 
 and conceit. The crusaders found the society of the Musselmen, as well 
 as of the Greeks, in advance of their own. If the theocratic despotism 
 of China has been weakened by the penetrating shot of the Japanese 
 soldiers and what has since occurred, it is well. 
 
 The free corporate cities between the eleventh and sixteenth cen- 
 "turies, in France, in Holland, in Germany and to the north, afiforded 
 the mass of the people an opportunity for participating in the functions 
 of government. True, the great mass of the people within the walls of 
 any city, were, comparatively, ignorant, brutal and savage, with no 
 proper guarantees of order or continuance; and with no established 
 government, yet each was acting under the sanction of an oath; and 
 when magistrates were to be chosen, or important questions of local 
 concern were to be determined, the inhabitants were all summoned to 
 the public square by the tolling of the great bell, and the question at 
 issue there decided by democratic vote. But classes grew up and the 
 spirit of mob violence became furious; and 'more stable forms of gov- 
 ernment became necessities. Tlie chartering of free corporate cities 
 prevailed in England. Thus on August 28, 1207, King John granted 
 a charter to Liverpool, whereby that city was to have the liberties and 
 free customs of any free borough; and eight years afterwards the same 
 were guaranteed, not only to Liverpool, but to London and other cities 
 by Magna Charta. 
 
 The Crown had started out as an absolute monarch. But six hun- 
 dred and eighty-two years ago the 15th day of last June, the enraged 
 people, and the great body of the nobility of England, under the com- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 13 
 
 mand of Robert Fitz-Walter, with the flaming title of "Marshal of the 
 Army of God, and the holy church," notwithstanding the Pope had 
 taken part with the King against them, met King John with his lay and 
 spiritual advisers at Runnymede, between Windsor and Staines; and 
 agreed upon that Magna Charta, and affixed their signatures to the 
 same, thereby guaranteeing, among other things, the "unwritten liber- 
 ties" — secured by the common law — also certain property rights — the 
 free ingress and egress to all traders, unless openly forbidden, free writ 
 of inquisition, as to life or limb — and, in effect, that no man should be 
 deprived of life, liberty or property without due process of law. As 
 strange as it may now seem, eighteen niches between the windows in 
 the House of Lords — the special guardian of the Crown and the Aris- 
 tocracy — are occupied by the statues of the Barons who aided in ex- 
 torting that Magna Charta from King John. 
 
 By the progressive constitution of that country, the powers of the 
 Crown were, from time to time, gradually diminished; and the personal 
 rights of the people, and the powers of Parliament — especially the 
 House of Commons — gradually increased and strengthened. Thus, 
 there was finally secured to Enghshmen something of that individual 
 liberty which had previously been contended for by the barbarians of 
 Germany. 
 
 Much of such progress in the British constitution has been since 
 the American revolution; and largely by reason of the establishment 
 of the American republic. 
 
 As all students of history are aware, the island of Britain had been 
 settled by numerous races having different habits, customs and lan- 
 guage. The mixture of these races was necessarily followed by a com- 
 mingling of thoughts, customs, manners and laws. The Roman civil 
 and canon laws were there in advance, and prepared the way for the 
 common law, which afterwards became dominant on the island. 
 
 Of course that law was, at first, merely traditional and fragmentary, 
 and consisted of but httle more than a rude method of settling con- 
 troversies according to recognized principles of right and justice, in- 
 stead of some arbitrary power. The old Anglo-Saxon lawsuit was not 
 
14 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 by a court and jury as now, but by all the attendant freeman of the 
 hundred, or the county, as the case happened to be; and the trial con- 
 sisted in the main of wrangle and contention. In the early history of 
 England, the King was the source of all power, but in due course of 
 J:ime Parliament was instituted and the King was required to take an 
 oath to submit to the laws of the realm, and then courts were estab- 
 Jisihed, the rules of their proceedings prescribed, and their judgments 
 and reasons for the same entered of record for the benefit of all. The 
 common law and its administration, as a schoolmaster and educator, is 
 rarely comprehended and never over-estimated. It probably impelled 
 Lord Chancellor Francis Bacon to reduce to a system the inductive 
 method of reasoning which has done so much to revolutionize the 
 thought of the world. As the commerce of England opened up new 
 and innumerable industries and avenues of trade, the common law, with 
 its benign influence, kept pace with and stimulated them, and thus its 
 dominions gradually became broadened, strengthened and purified. 
 Undoubtedly it has been a potent factor in many of the reformations 
 and social advances in Great Britain and America. 
 
 In this liberal age it is almost impossible to realize that only three 
 hundred and sixty-two years ago, under the supremacy act of Parlia- 
 ment, in the wicked reign of Henry VIII., with church and state united. 
 Bishop Fisher and Sir Thomas More, the ablest and most pure Lord 
 Chancellor who, up to thai; time, had graced the woolsack, were cruelly 
 beheaded, because they would not proclaim that the King was the 
 supreme head of the church. 
 
 The intolerance and religious persecutions of the sixteenth, seven- 
 teenth and eighteenth centuries, in England, peopled the American 
 colonies with much of the best blood and many of the bravest hearts 
 of the world; and such heroes were sufScient'in numbers to assimilate, 
 modify and control those who immigrated to the colonies from other 
 countries. As many sects arose in Europe, and especially in the island 
 ■of Britain, so by reason of such intolerance, many sects settled in the 
 American colonies. The scattered settlements along the coasts and 
 the weakness and dependency of each sect, tended to make them more 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. I5 
 
 or less respectful and tolerant of the opinions of each other; and the 
 same facts and the strenuous efforts of men like Jefferson, saved the 
 national government and the several states from any union of church 
 and state; although at first, and for a few years only, the two Carolinas, 
 Delaware, Maryland, Massachusetts and New Hampshire seemed to 
 have started on the old highway leading to the old city of destruction. 
 The common law of England and certain acts of Parliament, as well as 
 the rights secured to Englishmen by Magna Charta, were in force in 
 the colonies. Accordingly, controversies were determined by the course 
 of the common law; and, in a local way, all qualified electors were at 
 liberty to participate in the functions of government. For the colonists, 
 therefore, the school of experience was open from start to finish. 
 
 These things, necessarily, kept up a lively interest in the current acts 
 of Parliament and the current decisions of the English courts. 
 
 But soon after the accession to the throne of that narrow, unedu- 
 cated, obstinate, and bigoted "slave of deep-rooted selfishness," George 
 III., there appeared in the colonial skies, clouds, portentous with great 
 events, which the wise men of the east like Chatham, Camden, Burke 
 and Charles James Fox would gladly have prevented if they had been 
 able. But man proposes and God disposes. The road to almost every 
 Sinai is through some wilderness. The twelve years immediately pre- 
 ceding the Declaration of Independence were each and all years of 
 serious study and contemplation for every intelligent colonist. It was 
 not so much what the King and Parliament had done, as what they 
 claimed the right to do; and what there was nothing in the British con- 
 stitution to prevent them from doing. 
 
 Thus, in 1775, the British government, speaking through the lips 
 of Lord Chief Justice Mansfield, proclaimed the issue in these words: 
 "My lords, we are reduced to the alternative of adopting coercive 
 measures, or at once submitting to a dismemberment of the empire. 
 Consider the question in ever so many lights, every m-iddle way will 
 speedily lead to either of these extremities. The supremacy of the 
 -British legislature must be complete, entire and unconditional or, on 
 the other hand, the colonies must be free and independent 
 
l6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Concession now is an abdication of sovereignty." These sentiments 
 he reiterated in December, 1775, and in March, 1776. The same doc- 
 trine of absolute dominion and complete subjection had just previously 
 been judicially declared by the unanimous opinion of the court of King's 
 Bench. 
 
 The colonists accepted the alternative and challenged the power 
 of coercion. Independence was declared arifl colonial governments 
 were dissolved. The causes which led to that declaration were so vigor- 
 ously stated by that eminent statesman and illustrious friend of personal 
 liberty, Thomas Jefiferson, in the Declaration itself, as to be familiar to 
 all students of American history. And yet there are some foolish 
 enough to believe, or pusillanimous enough to feign, that by the words, 
 "all men are created equal," Jefiferson and his compatriots meant that 
 all men were physically equal, mentally equal, morally equal and socially 
 equal, instead of meaning the equal protection of the personal rights 
 of all, as now secured by our fundamental law. 
 
 Upon the adoption of the Declaration of Independence and the 
 dissolution of the colonial governments, the work of reconstruction 
 immediately began. What should be the model? The httle aristocratic 
 republic of San Marino in the Italian mountains, had hung there like 
 a lone star for over a thousand years; and its structure was undoubted- 
 ly studied with great care by the colonial lawyers and statesmen. 
 
 The Swiss confederation, with numerous petit states, differing, more 
 or less, from each other, physically, religiously, politically, socially, 
 industrially, and in language — each with almost absolute indepen- 
 dence as to all domestic affairs, and leagued together as to foreign 
 afifairs — had long been successfully maintained; and was, therefore, of 
 special interest. 
 
 The only other government in Europe at that time entitled to be 
 called free, in any sense, was Great Britain, and yet ten years before, 
 Mansfield had publicly admitted that eight millions of people in Eng- 
 land alone and twelve miUions in England and Ireland together, were 
 without any representation in Parliament. The events which had trans- 
 pired, and were then transpiring, developed numerous brave, unselfish 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. I? 
 
 able and patriotic men, of whom Washington may be regarded as the 
 highest type, who studied and labored for the coming republic; and 
 through its ultimate efificiency, for the benefaction of the race. 
 
 The framers of the constitutions of the several thirteen newly created 
 states were not only free to study the structures of the three govern- 
 ments mentioned, but to gather political wisdom from Palestine, 
 Greece, Rome, France, Holland, Germany and other nations. The 
 result was that the several constitutions and governments of the re- 
 spective states differed more or less from each other. Thus Rhode 
 Island organized a state government with unlimited powers, under its 
 old royal charter granted by Charles II. Connecticut did the same, 
 but adopted a short bill of rights. For twelve years Georgia was under 
 a constitution which authorized but one representative body; and 
 that body selected a governor and an executive council from its own 
 members. For fourteen years the legislative power of Pennsylvania 
 was vested in one body, and the executive power in another. But the 
 other states severally created state governments with three separate 
 departments — legislative, executive and judicial, more or less inde- 
 pendent of each other — with the legislative department divided into two 
 houses, each having a check upon the other and each responsible for the 
 laws; and the executive with his veto, having a check upon both, with 
 certain limitations upon each department and officer, and certain rights 
 secured to all by written constitutions which could not be changed or 
 modified except by the people acting in their sovereign capacity. Such 
 written constitutions were the best ever devised by men up to that 
 date. As a rule they embodied and thus made permanent most of the 
 safeguards and guarantees contained in the Magna Charta of the 
 mother country, but unfortunately some of them omitted that provision 
 which would have abolished slavery within their borders. The war 
 which followed the Declaration of Independence, and the weakness of 
 the respective states, made the old Articles of Confederation, similar 
 to the Swiss confederation, a necessity- — as a league for defense and 
 offense against the common enemy. But as soon as the imminent 
 danger passed, the confederation was found to be a humiliating failure. 
 
l8 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 After eleven years' experience with thirteen separate and independent 
 states or petit republics, the desire for a more perfect union — commer- 
 cially and otherwise — became quite common, and so the original con- 
 stitution of the United States was framed and submitted to the people 
 of the respective states; and finally ratified by them in state conven- 
 tions called for that purpose. In the discussions leading up to the 
 formation of the constitution, there were two extreme views contended 
 for. The one favored a consolidated nationality, in which the states 
 would be mere subordinate dependencies. The other only favored such 
 a confederation or union as would leave the respective states, as inde- 
 pendent sovereignties with the power in each of withdrawing at pleasure. 
 Fortunately for this country and the world, the conservative judgment 
 of the wise men of that day prevailed, and the extreme views men- 
 tioned were rejected, and a middle course was pursued; and so it hap- 
 pened that the framers of the original constitution, encouraged by the 
 successful experiments of the several state governments, ventured to 
 create, for the first time in the history of the world, a new and dual 
 system of government for the people of the United States, with certain 
 powers expressly named, delegated to the national government, to- 
 gether with such incidental or implied powers as were necessary or 
 convenient to carry into execution the great substantive powers thus 
 expressly granted, and which powers were largely exclusive, and to 
 that extent abridgments upon the powers of the respective states, and 
 with certain limitations upon the powers thus granted to the federal 
 government, and certain prohibitions against the exercise of certain 
 powers by the United States, or any of the states — in order that the 
 private rights of the citizen in such matters should be protected against 
 all arbitrary power; but otherwise leaving with the respective states all 
 powers not so exclusively granted, nor abridged nor prohibited. Of 
 course there was furious opposition to the adoption of the original con- 
 stitution. Some fifteen of the delegates in the convention, including 
 Patrick Henry, either left in disgxtst or refused to sign the instrument. 
 The eighty-five able articles from Jay, Madison and Hamilton in the 
 Federalist indicate something of the anxiety of its friends to secure its 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN, 19 
 
 ratification by the people of the respective states; and probably it 
 would not have been ratified at all had not promises been made for 
 certain amendments, ten of which were proposed by the first Congress 
 and ratified as early as 1791. The general sentiment of the time is fairly 
 indicated by the fact that those ten amendments, as they now stand in 
 the constitution, are each and all limitations upon the powers, or rather 
 what were then supposed to be the powers of the federal government; 
 and were mostly for the protection of the citizen against its arbitrary 
 powers; and none of them were limitations or prohibitions upon the 
 powers of the respective states, but on the contrary, emphasized the 
 reservation of powers "to the states respectively, or to the people." 
 
 Dissatisfaction having arisen because the original constitution 
 authorized a private citizen to sue a sovereign state in a federal court 
 without its consent, the eleventh amendment took away the right in 
 1798. 
 
 To prevent a repetition of the disreputable effort of Aaron Burr 
 to supplant his own associate upon the ticket, Thomas Jefiferson, for 
 the presidency, the twelfth amendment was adopted in 1804. 
 
 But our Magna Charta was incomplete while men, women and chil- 
 dren could be bought and sold on the public markets, not only in half 
 the states of the Union, but in the District of Columbia, and under the 
 dicta of five of the justices of the supreme court of the United States, 
 after holding that they had no jurisdiction, in the Dred Scott case, in 
 all the territories as well. But the crowning glories of American citi- 
 zenship, through the necessities of the war, at last, came in the form of 
 three constitutional amendments, the thirteenth, adopted in 1865, the 
 fourteenth in 1868, and the fifteenth in 1870, during Grant's first term 
 as President. By these three amendments slavery and involuntary servi- 
 tude were abolished throughout the land; the rights, privileges and 
 immunities of American citizens were defined, and the respective states 
 expressly prohibited from abridging any of them; and it was therein 
 expressly declared, that no state should "deprive any person of life, 
 liberty, or property, without due process of law; nor deny to any per- 
 son within its jurisdiction the equal protection of the laws." This 
 
20 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 includes, and is an improvement upon that great personal guarantee, 
 wrung from an arbitrary king more than six hundred and eighty-two 
 years ago, and by the fifth amendment applied to our national govern- 
 ment, one hundred and six years ago; but which some of the state con- 
 stitutions wholly omitted, or hmited to certain classes. 
 
 What figures can indicate — ^what language can express — the ex- 
 penditure of blood and treasure to secure sucli grand consummations! 
 To the great and good men who devised and executed and preserved, 
 be the praise. 
 
 As some of the most useful inventions consist of a new combination 
 of old elements, so while our dual system of state and national govern- 
 ments embrace many elements that are old, yet some of the elements 
 are new, and the combination is entirely new, and hence, was patentable. 
 
 In no other government are the rights of the people so thoroughly 
 guarded. In no other system does so large a per cent, of the people 
 participate in the functions of government; and, hence, it is highly 
 educational, both mentally and morally. 
 
 True, it is well calculated to stimulate controversy; but that, neces- 
 sarily, stimulates study, thought, discrimination and the reasoning 
 faculties — and all those things tend to higher citizenship. 
 
 One of the tests by which the comparative efficiency of governments 
 and the contentment of their citizens may be determined, is the amount 
 of military force required in each in time of peace, to preserve order 
 and enforce the laws. Astounding as it may seem to us as American 
 citizens, Italy, with a population of less than thirty-one millions, has a 
 standing army of officers and men of 282,382. France, with a popula- 
 tion of less than thirty-nine millions, has a standing army of 494,285 at 
 home, and over 70,000 abroad. Austria and Hungary, with a popula- 
 tion of less than forty-two millions, has a standing army of 347,297. 
 Germany, with a population of less than fifty millions, has a standing 
 army of 511,885. Russia, with a population of less than one hundred 
 and twenty millions, has a standing army of 781,574. Great Britain and 
 Ireland are more isolated and since the suffrage act of 1885, the elective 
 franchise has been nearly as general as here, yet with a population of 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 21 
 
 less than thirty-nine milHons, they have a standing army of 106,115 ^t 
 home, and a still greater number abroad. In broad contrast with all 
 these nationalities, the United States, with a population of more than 
 sixty-five millions, has a standing army of only 27,957, ^"'<i ^ large por- 
 tion of these are employed in keeping the Indians in subjection and 
 another large portion in protecting our own citizens from the savagery 
 of the mob — mostly composed of immigrants, who have never become 
 naturalized and who know nothing and care nothing about the genius 
 or purpose of our dual system of government — led on by those who 
 have been "irreconcilables" in continental Europe — making war upon 
 all existing forms of government. Such irreconcilables, like anarchists, 
 are worse than the Pharisees, for they neither render unto Caesar the 
 things that are Caesar's, nor unto God the things that are God's. Thus, 
 in this country, obedience to the law, when authoritatively ascertained 
 by our own citizens, is nearly what it should be — spontaneous. Of 
 course the frequency, the size and the successful organization of mobs 
 necessitates standing armies of more or less magnitude, and the cost of 
 such armies stimulates discontent. Every mob has a supposed griev- 
 ance. Some mobs have a real grievance; but even then, the remedy 
 is worse than the disease. A common mob commits a riot. A rebellious 
 mob commits high treason. To incite or encourage a mob is to incite 
 or encourage riot or treason. To stimulate anarchy is to discourage 
 patriotism and to encourage lawlessness, mob rule and revolution. 
 "Irreconcilables" in governmental affairs, like irreconcilables in re- 
 ligion, are generally the promoters of strife and discord, rather than 
 piety and patriotism. The most dangerous revolutionists is that in- 
 sidious class who loudly profess loyalty to an existing government and 
 sympathetic devotion to some species of suffering, and thereby secure 
 power through popular suffrage, and then traitorously use the power 
 so obtained, to wholly or partially overthrow the government they 
 professed to love. Such revolutionists are mostly brooded and nurtured 
 in the old world, and in the oligarchies of South America, which for 
 many years have masqueraded as republics. Such men are occasionally 
 found in our own country, applying their deceptive arts with the en- 
 2 
 
22 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 thusiasm of new converts or original inventors — even to the extent 
 of destroying those personal rights secured by the fundamental law^- 
 as for instance, personal liberty, the sacredness of contracts, the right 
 to acquire property or to hold it after it has been acquired. In the 
 language of Mr. Finch, for many years an able judge of New York, 
 in a recent lecture at Cornell, back of ownership, "there was nothing 
 but force — the brutal brawn of the stronger — tfie spear and club of the 
 chief — superior only by means of tougher muscle and uglier will. . . 
 But out of all this darkness, slowly and painfully emerged the idea of 
 ownership as a right of the individual" — ownership of "everything 
 which is most precious to a man may depend upon this question: his 
 property, his liberty, his honor and even his life." In a recent address 
 before the New York Bar Association, that eminent jurist, John F. 
 Dillon, is equally emphatic along the same lines, and declares, that any 
 "denial of the right of private property, or of its full enjoyment, is 
 radically pernicious, or Utopian." The trend of the decisions in the 
 American courts are all in the same direction. The right to liberty and 
 property secured by the fundamental law includes the right to make 
 and enforce contracts for the acquisition of property. To destroy the 
 rights thus secured, would be to turn the wheels of civilization back- 
 ward for centuries. The frequent holding up, robbing and wrecking 
 of railroad trains, freighted with precious lives, as well as property, and 
 the organized combinations which enable the few to enrich themselves 
 by oppressing the many, or which compel men against their will to 
 break their contracts with others, induce the repetition of the remark 
 of the Boston D. D., who recently declared in London, that "philan- 
 thropy was overdone and justice underdone." The irreconcilables, the 
 anarchists and the revolutionists mentioned may be exceedingly dan- 
 gerous in a country where the constitution is no more binding than a 
 mere statute, and may be overturned by a single body of men, elected 
 at the same time by a single surge of popular excitement. Such fear of 
 revolution seems to have been an element in the late election in Great 
 Britain; and so Mr. Gladstone explains, that he is not conscious of ever 
 having expressed an opinion favoring the abolition of the House of 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 23 
 
 Lords. But with us, the fundamental law can only be overturned or 
 modified by successive votes ol numerous bodies composed of members 
 elected at different times and in numerous districts or sections; and 
 hence, if an enemy of the state or nation gets into office, and thus ex- 
 poses his real character, he is quite sure to be relegated to private life 
 before he has destroyed or permanently injured the perpetuity of the 
 government. And yet, if there is any danger to our republic, it is along 
 these lines; and hence, the same should be counteracted by the restric- 
 tion of immigration to those who are likely to become American citi- 
 zens, by educating the rising generations — by social and moral culture 
 — stimulated by the good and patriotic along all the avenues of thought. 
 Of course our fundamental law may be improved by its friends — here a 
 little and there a little — but its enemies should never be allowed to 
 meddle with it. It may be asked, however, is there no work for the 
 reformer? Certainly, there is room for all legitimate reforms. Civiliza- 
 tion has not reached its maximum; and society has not reached per- 
 fection. Ignorance, avarice, envy, ambition, intemperance, passion, 
 jealousy, brutality, revenge, and the different forms of vice, have not yet 
 ceased to be disturbing elements. Undoubtedly grave wrongs are com- 
 mitted every day in the year and in every state in the Union — not so 
 much for want of laws, as for the want of the prosecution of laws. But 
 the broad discretion vested in legislative bodies enables them, within 
 constitutional limits, to shape all matters of policy — domestic, inter- 
 state and international. The broad discretion vested in all executive, 
 administrative and municipal officers furnishes abundant opportunity 
 for experiment and improvement. Such are some of the outlines of that 
 dual system of government known as the American republic; and some 
 of the steps which led to its establishment, and to the completion of its 
 great fundamental charter. It was evolved from the experience of the 
 ages. It was conceived by those who had graduated in the schools of 
 adversity and necessity. It was, under the guidance of Providence, 
 fashioned by the most unselfish, brave, patriotic, magnanimous and wise 
 band of compatriots that ever attempted such an undertaking; and, all 
 things considered, they accomplished their purpose under the most 
 
24 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 favorable circumstances. While slavery has always been abhorrent to 
 a very large portion of American citizens, and now, it is hoped, to all, 
 yet in view of the events of the last hundred years it would seem that 
 Providence used the influence of the institution, as he did the influence 
 of wicked rulers in other times and in other countries, to acquire terri- 
 tories for the purpose of ultirhately establishing thereon better govern- 
 ments. Thus Florida was acquired from Spain.* The great Louisiana 
 purchase was acquired from France, extending, as it did, from the 
 mouth to the source of the Mississippi, and far to the westward. So 
 Texas and California and the vast territories west of the Louisiana pur- 
 chase and south of what is now Oregon, were obtained. The aggregate 
 area of the territories thus acquired is far greater than the entire do- 
 minions of the United States a hundred years ago. Thus, the home 
 missionaries, in the schools of American citizenship and patriotic ad- 
 vancements, have fields for aggressive enterprise, which, otherwise, 
 would never have existed. 
 
 But the republic of Grant, Cleveland, Harrison and McKinley is far 
 superior to the republic of Washington, Jackson and^ Buchanan. Half 
 an hour while waiting alone for a train at midnight and in winter, is 
 long enough. Fifty centuries were none too long for Providence, acting 
 through human agencies, to produce a republic as imperfect as ours 
 was in the beginning, and still another century to produce what we now 
 behold. Attempts to get ahead of Providence are always foolish, and 
 generally end in retrogression rather than advancement. The Jewish 
 king who could not -bear the thought of being killed by a woman in 
 battle, foolishly ordered his own death by his own men. It is always 
 dangerous to get in front of God's chariots, or to obstruct his pathway. 
 Napoleon tried it and woke up on St. Helena. Jefferson Davis and his 
 coadjutors attempted the same feat, but the result was failure. All 
 attempts to supplant the individualism, incident to our form of govern- 
 ment, by a stupendous paternalism, are but subtle attempts tO' supplant 
 our democratic republic by a theocratic or imperial monarchy. It may 
 be that in some climates and some nationalities where ignorance is al- 
 most universal, mature and healthy men should be treated as babes in 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 25 
 
 the woods, but in this free land, they should rather be treated as stal- 
 warts on the hills — in the valleys — on the plains — in the mountains. 
 Even the blind may properly be required to go down intO' the water as 
 a condition of restored sight. The glasses which reveal nothing wrong 
 or bad in this republic may be defective; but the glasses which reveal 
 everything in the government of this country as inferior to the govern- 
 ments of the old world, are not only defective, but inverted. Some 
 kind-hearted, but narrow minded men — like the "worldly" or the so- 
 called "wise men" mentioned by Dickens in Barnaby Rudge — make 
 everything they see or hear "reflect the only images their minds con- 
 tain." Only three years ago the French Chamber of Deputies declared 
 themselves against a separation of church and state by a vote of 305 
 to 205 ; and over the highest court in France is a painting of the Cruci- 
 fixion. And yet, we are told by Cardinal Gibbons, on his return from 
 his recent European tour, in effect, that he observed an absence of 
 religion in all branches of the French government, while it is present 
 (in spirit if not in form) in all branches of this government; and so"" he 
 thanks God that "we enjoy in this country the amplest liberty of wor- 
 ship and freedom of conscience." Providence generally moves along 
 natural, conservative and practical lines. The earthquake and the cy- 
 clone — the saving of Jonah and the raising of Lazarus — may be excep- 
 tions. Every man should have a firm grasp upon something permanent 
 and above himself, before he attempts to walk on the water. The im- 
 portant question is not how most effectually to govern — control men, 
 but what kind of government will best stimulate men to govern them- 
 selves, to develop the largest per cent, of noble manhood — character — 
 the highest type of citizenship. A government should be a sort of 
 moral and intellectual gymnasium, where all may have an opportunity 
 for exercise with the least injury to any and the greatest good to all. 
 The chief glory of the founders of the republic is in the fact that they 
 were willing to cooperate with Providence in the establishment of a 
 national government for national purposes, and, as indicated in James 
 Madison's letter of submission, tO' that end yield and forego all minor 
 considerations, even to the extent of allowing to the respective states 
 
26 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the power to continue or abolish slavery. The chief glory of Lincoln's 
 administration consists in the fact that he was at all times controlled by 
 a purpose to cooperate with Providence in saving the Union' — as, in 
 effect, expressed in his letter to Horace Greeley, only thirty days before 
 his proclamation of conditional emancipation — his "paramount object" 
 was "to save the Union" — ^whether his efforts in doing so resulted in 
 saving or destroying slavery. The chief glory of this republic consists 
 in the fact that, in contradistinction to governments of arbitrary will 
 and despotic power, this is a government based upon fundamental and 
 practically unalterable laws, as indicated, wherein no officials, no body 
 of officials, no combination of individuals, are above the laws, but each 
 and all are alike subject and answerable to the laws. 
 
 The duration of this dual system of government depends not only 
 upon the wisdom, integrity and virtue of those who make and admin- 
 ister the laws, but in the wisdom, integrity and virtue of those who 
 elect the men who' thus make and administer the laws. With a free 
 ballot based on manhood suffrage, with free schools for the children of 
 the rich and poor alike, with all churches and all religious institutions 
 entirely independent and free from governmental control, and yet each 
 and all protected in the free exercise of their legitimate functions by 
 the strong arm of the law, with the freedom of speech and the press 
 guaranteed, subject only to responsibility for abuses, with liberty prop- 
 erly regulated by laws, and the laws impartially enforced without any 
 discrimination, with the common rights of all men equally protected 
 against all encroachments from arbitrary power, with all class distinc- 
 tions and titles of nobility absolutely prohibited, the American repubhc 
 must in due time become, if it is not already, the guiding star of the 
 world, and by its benign influence regenerate, reform and transform 
 all other nationalities into its own likeness. 
 
 Madison, Wis., February 8, 1898. 
 
CHAPTER 11. 
 
 WAR QUESTIONS. 
 BY F. C. WINKLER. 
 
 It is proposed in this chapter to give a brief survey of the legal 
 history of the state, in so far as war questions, those connected with the 
 causes of the war of the rebellion as well as those which arose in the 
 course of its progress, were concerned. , 
 
 The earliest of these in point of time, and at the same time the most 
 important, turned upon the fugitive slave law of 1850. Section 2 of 
 article IV. of the constitution of the United States contains the follow- 
 ing provision, the only enactment found in the constitution upon the 
 subject: 
 
 "No person held to service or labor in one state, under the laws 
 thereof, escaping into another, shall, in consequence of any law or regu- 
 lation therein, be discharged from such service or labor, but shall be 
 delivered up on claim of the party tO' whom such service or labor may 
 be due." 
 
 In pursuance of this provision, the Congress of the United States 
 on the I2th of February, 1793, enacted two brief sections; one author- 
 izing the owner of any such person so escaping to arrest him, bring 
 him before a United States judge, or any state judge or magistrate, 
 and prove to his satisfaction, by oral testimony or affidavit, that the per- 
 son arrested owed service to the claimant under the laws of the state 
 from which he had escaped, whereupon it was made the duty of the 
 iudge or magistrate to give a certificate that such proof had been made 
 and this certificate was declared a sufficient warrant for removing the 
 fugitive to the state from which he had fled. The second section pro- 
 vided a penalty of five hundred dollars for knowingly and willfully ob- 
 structing the execution of this law, or harboring or concealing the fugi- 
 tive after notice that he was a fugitive from labor. 
 
 27 
 
28 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 The act of September i8th, 1850, one of the famous compromise 
 measures of that year, was intended largely to increase the facilities 
 for reclaiming fugitive slaves and to place the machinery for executing 
 its provisions in the hands of federal ofificers. It gave exclusive juris- 
 diction to the judges of the United States courts and to court com- 
 missioners appointed by them over all cases arising under the act. It 
 authorized an increase in the number of court commissioners and pre- 
 scribed the mode of procedure with detail. It provided for a hearing 
 before the judge or court commissioner and made the certificate, if one 
 was granted, conclusive of the right of the claimant and of the fate of 
 the accused. It admitted proof by affidavit on behalf of the claimant, 
 but enacted that "in no trial or hearing under this act shall the testi- 
 mony of such alleged fugitive be admitted in evidence." It very much 
 increased the penalties and liabilities of persons who might resist the 
 enforcement of the law or harbor or cohceal the fugitive. It imposed 
 strenuous duties, under severe penalties for neglect, on the United 
 States marshals requiring them, under circumstances, to call out a 
 posse comitatus to aid in the capture of a fugitive. It provided a fee 
 to the cO'mmissioner hearing the case of ten dollars on granting the 
 certificate to the claimant, but gave him five dollars only in case the 
 proof failed to warrant the issuing of a certificate. Features unneces- 
 sarily irritating enhanced the unpopularity of an intrinsically distasteful 
 law. 
 
 In March, 1854, Joshua Glover, alleged tO' be a fugitive held to 
 service or labor in the state of Missouri, was arrested at Racine, Wis- 
 consin, by the United States marshal by virtue of a warrant issued by 
 the United States district judge. He was brought to Milwaukee and 
 there lodged in jail pending a hearing. Excitement ran high. A crowd 
 gathered at the jail, broke in the doors, set the alleged fugitive at liberty 
 and he made good his escape. Sherman M. Booth, the editor of a 
 pronounced anti-slavery paper at Milwaukee, had been concerned 
 in the rescue. He was arrested for violation of the act of 1850 in having 
 aided the prisoner to escape, upon a warrant issued by a United States 
 court commissioner. Upon examination he was bound over tO' the 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 29 
 
 next term of the United States district court. He gave bail, but his 
 bail surrendered him, and thereupon, by warrant dated May 26th, 1854, 
 the commissioner committed him to the custody of the United States 
 marshal. The next day application was made to the Hon. Abram D. 
 Smith, one of the justices of the supreme court of this state, for a writ 
 of habeas corpus to the marshal of the United States. The writ was 
 allowed. The marshal made return, setting' up the warrant in his hands 
 as justification. Mr. Justice Smith discharged the prisoner, giving his 
 reasons in an elaborate opinion in which he held the act of September 
 i8th, 1850, tO' be unconstitutional. He argued forcibly and insisted 
 with emphasis that the constitutional provision referred to was in the 
 nature of a mandate to the states only and conferred no authority what- 
 ever on Congress to legislate upon the subject. The case was taken to 
 the supreme court of the state by certiorari. It was there argued with 
 great thoroughness and ability. JNIr. Byron Paine, afterwards one of the 
 justices of the same court, appeared for Mr. Booth. Mr. J. R. Sharp- 
 stein, then United States district attorney, and Mr. E. G. Ryan, later 
 chief justice of the court, represented the marshal. The court (then 
 consisting of three judges) affirmed the order discharging the prisoner. 
 The decision was unanimous. The grounds however on which the 
 judges based their conclusions were not the same. The judges were 
 agreed in sustaining the right of the state judge to issue the writ 
 of habeas corpus to the United States marshal, and upon this writ 
 to enquire into and pass upon the sufficiency of a warrant issued by a 
 United States court commissioner. Chief Justice Whiton yielded to 
 the authority of the case of Prigg vs. Commonwealth of Pennsylvania, 
 16 Peters, 640, as establishing the constitutional authority of Congress 
 to legislate upon the subject of reclaiming fugitive slaves, but held the 
 act of 1850 to be unconstitutional on the ground that it attempted to 
 vest judicial power, including the power to pass finally upon the ques- 
 tion of liberty of the party claimed, in a court commissioner without 
 constitutional warrant and in violation of the bill of rights. Mr. Justice 
 Smith, while concurring in these criticisms on the law, reiterated his 
 position that Congress was given no right of legislation on the subject, 
 
30 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 and that the act was therefore void. Mr. Justice Crawford held the law 
 to be valid and concurred in the judgment only on the ground that the 
 warrant or commitment under which the arrest was justified did not 
 upon its face show a case within that law. For a full report of this 
 interesting case see 3 Wisconsin, i. 
 
 At the July term, 1854, of the United States district court for the 
 district of Wisconsin, Sherman M. Booth and John Rycraft were in- 
 dicted for aiding the escape of Glover, and warrants were issued from 
 that court for their arrest to answer the indictments. Application was 
 then made by Mr. Booth to the supreme court for a writ of habeas 
 corpus, with allegation that the indictments charged a violation of the 
 fugitive slave law, which was averred to be unconstitutional. This ap- 
 plication was unanimously denied by the court. Chief Justice Whiton, 
 delivering the opinion, took a distinction between a warrant of a court 
 commissioner and a warrant issuing from the court upon a case pending 
 therein, holding that in the latter case the granting of the writ would be 
 an unwarranted interference with the jurisdiction of the court in which 
 the indictment is pending. Mr. Justice Smith delivered a concurring 
 opinion, in which he emphasized the time of the application as an ob- 
 jection to granting it, the jurisdictional question not having been first 
 presented to the court in which the indictment was pending. Ex parte 
 Booth, 3rd Wisconsin, 145. 
 
 Mr. Booth and Mr. Rycraft were thereafter tried in the United States 
 district court and convicted of violation of the "fugitive slave act" and 
 were sentenced to a short imprisonment in the county jail of Milwaukee 
 county. A writ of habeas corpus was now again applied for to the su- 
 preme court of the state, upon a petition which was accompanied by a 
 transcript of the record of conviction. The writ was granted. The sherifif 
 of Milwaukee county, as custodian of the jail, made return, and the 
 United States marshal, protesting against the jurisdiction, also made re- 
 turn of the facts and the record. The court entered judgment discharg- 
 ing the prisoners. The question chiefly discussed in the case was that of 
 the power of the state court to enquire into and pass upon the question 
 of jurisdiction of a federal court in a case which the latter had assumed to 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 31 
 
 adjudicate. Each of the three judges delivered an opinion. Each held 
 to the right of the state court on habeas corpus to pass upon the juris- 
 diction of the federal court. All concurred, although on varying 
 grounds, that want of jurisdiction appeared on the face of the record. 
 In re Booth & Rycraft, 3rd Wis., 144. 
 
 To review the judgments discharging the prisoner, writs of error 
 were issued by the supreme court of the United States and duly served. 
 To the first writ, return seems to have been made without attracting 
 special attention. When the writ was served in the second case, the 
 supreme court of the state directed its clerk not to make return to it, 
 taking the position that an appeal or writ of error did not lie from a 
 state court to the supreme court of the United States, and that the act 
 of Congress authorizing the same was unconstitutional. The attorney 
 general of the United States had, however, obtained a transcript of the ' 
 record from the clerk of the supreme court of Wisconsin, and when it 
 was found that that court persisted in its refusal to allow a return to be 
 made, the cause was docketed on the filing of this transcript in the 
 supreme court of the United States and the cases were argued in due 
 course. The supreme court, by unanimous decision embodied in an 
 able opinion of Chief Justice Taney, reversed the judgment of the 
 supreme court of Wisconsin. The chief justice arraigns the supreme 
 court of the state with severity for the extraordinary assumption of 
 annulling the sentence of the federal court by its decision of the writ 
 of habeas corpus and then denying the right of review to. the supreme 
 court of the United States, thus placing the state court in a position of 
 supremacy, the result of which must be that the federal courts must 
 exercise their jurisdiction subject to the supervision, as tO' jurisdiction, 
 of the local court in every state. The opinion presents a strong argu- 
 ment on the national side of the old controversy relating to the respec- 
 tive rights of the general government and the states, and a lucid expo- 
 sition of the relations between them. 
 
 Several years had elapsed since the decisions of the state court, and 
 when the cases came to that court again its personnel had entirely 
 changed. Luther S. Dixon was chief justice, Orsamus Cole and Byron 
 
32 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Paine, the associates. Of these, the latter had been counsel for Booth, 
 and Mr. Justice Cole had been a member of the court when it refused 
 to make return to the writ of error and had concurred in that action. 
 The cases now (June term, 1859) came in the form of motions to file the 
 mandates of the supreme court of the United States reversing the judg- 
 ments on the writs of error. Mr. Justice Paine, having been of counsel 
 for Booth, did not sit. Mr. Justice Cole, although delivering no opinion, 
 adhered to the view taken when a return to the writ had been refused. 
 Chief Justice Dixon gave the subject careful and elaborate considera- 
 tion. In an able argximent, he asserted the jurisdiction of the supreme 
 court of the United States to final arbitrament where federal questions 
 are involved and contended that the mandates should be received 
 and heeded. In view of the difference between the two judges who acted 
 in the case, no affirmative action could be had and the motion was 
 denied. Ableman vs. Booth, 11 Wis., 498. In March, i860, Mr. Booth, 
 who, after the decision of the supreme court of the United States, had 
 been re-arrested, made another application for a writ of habeas corpus 
 to our supreme court. This was denied, Mr. Justice Paine not sitting in 
 the case and the chief justice and Mr. Justice Cole being divided in 
 opinion. 11 Wis., (Vilas & Bryant's notes) 555. 
 
 Herewith the great judicial controversy, growing out of the fugitive 
 slave law, in which such extreme grounds were taken, came to an end. 
 
 Mr. Justice Paine was first elected to the supreme court in 1859. 
 He was elected on a pronounced state rights platform. He had been 
 Mr. Booth's great advocate. After the close of the war he had occasion 
 in several judicial opinions to refer to the subject of these decisions. 
 In Knorr vs. Home Insurance Co., 25 Wis., 143, he delivered a dis- 
 senting opinion, holding that the constitution of the United States con- 
 tained no warrant for acts of Congress giving either appellate jurisdic- 
 tion from a state court to the supreme court of the United States or 
 the right of removal of suits from state courts to> federal courts. He 
 admits in his argument that under his view of the law there is no arbiter 
 to decide between the respective claims of state and national authority; 
 also that there ought to be such an arbiter and that the supreme court 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 33 
 
 of the United States would seem to be the proper tribunal; but contends 
 that proper construction of the constitution as it stands does not admit 
 of the granting of these powers. In the course of his opinion the learned 
 Judge says: 
 
 "I am aware that the idea of state rights is at present exceedingly- 
 odious and unpopular. It is branded as a legal and political heresy, and 
 held directly responsible for the attempt at secession with all its disas- 
 trous consequences. But the twO' claims are entirely distinct and dis- 
 similar. 
 
 "Secession is revolutionary; state rights not. Secession seeks to 
 withdraw and overthrow the powers admitted to- have been delegated 
 to the federal government. State rights makes no such effort. Seces- 
 sion throws off entirely all obligation under the constitution of the 
 United States. State rights throws off none of that obligation, but 
 concedes that that constitution and laws made in pursuance of it are 
 the supreme law of the state, and that it is the sworn duty of its tribu- 
 nals to regard and enforce them as such 
 
 . These fluctuations in the popular feeling and opinion 
 can have no legitimate influence upon the question of legal interpreta- 
 tion. Nor can they make it true, that, under our system of divided 
 sovereignty, it is not a question of the gravest delicacy and importance, 
 and, at least, of doubt, whether the states, the original sovereignties, 
 hold their reserved powers wholly subject to the judgment of the federal 
 court." 
 
 Shortly afterwards an application for a writ of habeas corpus on 
 behalf of a minor, alleged tO' have been enlisted in the United States 
 army in violation of law, was addressed to the supreme court. Here 
 Mr. Justice Paine delivered the prevailing opinion of the court. Chief 
 Justice Dixon dissenting, to the effect that the court had jurisdiction to 
 enquire into the legality of the petitioner's restraint of liberty. He 
 discusses the decisions in the Booth case, both state and federal, and 
 argues chiefly in favor of initiative jurisdiction, conceding the power of 
 the supreme court of the United States to review a state court decision. 
 
34 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 involving a federal question, to be now settled upon authority. In re 
 Tarble, 25 Wis., 390. 
 
 Tliis well reasoned opinion goes far to convince us that the position 
 of our supreme court in the Booth cases would have been far less inde- 
 fensible if to the assertion of the right to enquire into the jurisdiction of 
 the United States District Court on habeas corpus it had not added the 
 claim that its decision was final and beyond review by the supreme court 
 of. the United States, "which," as Mr. Jtistice Paine concedes, "was, in 
 truth, contrary to the entire current of authority." 25 Wis., 407. 
 
 In re Tarble was taken to the supreme court of the United States 
 and there reversed, that tribunal laying down the general principle that 
 "whenever any conflict arises between the enactments of the two sov- 
 ereignties, or in the enforcement of their asserted authorities, those of 
 the national government have supremacy until the validity of the differ- 
 ent enactments and authorities are determined by the tribunals of the 
 United States;" and that a state judge has no authority tO' entertain 
 a writ of habeas corpus "for the discharge of a prisoner held under 
 the authority, or claim and color of authority, of the United States by an 
 officer of that government;" that whenever it appears in such a pro- 
 ceeding, "that the party is held by an officer of the United States under 
 the authority, or claim and color of authority of the United States," the 
 state judge can proceed no further. 
 
 Chief Justice Chase dissented, holding fully to the view that a state 
 court has the right to enquire into the jurisdiction of the federal court 
 upon habeas corpus, and to discharge when satisfied that the peti- 
 tioner for the writ is restrained of his liberty by the sentence of a court 
 without jurisdiction; and that if error is committed in such discharge 
 its remedy is found in the appeal allowed to the supreme court of the 
 United States. 
 
 This decision, it is believed, has been unanimously accepted as finally 
 settling the law upon the subject. It doubtless curtails the powers 
 which have generally been exercised on writs of habeas corpus, but this 
 curtailment is held to arise out of the pecuhar relations between the 
 state and federal governments and the necessity of a tribunal to deter- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 35 
 
 mine the boundary line. A government is necessarily the judge of its 
 own powers and the United States government, being supreme within 
 its limits, must have power tO' determine those limits. 
 
 The state rights agitation over the fugitive slave did not confine 
 itself to the court rooms of Wisconsin. How it invaded politics and 
 dominated the action of parties, it is not within the scope of these pages 
 to trace; but as early as 1857 the legislature took it in hand. It 
 enacted one of the so-called "personal Hberty" bills, then quite common 
 in the northern states. This act (chap. 8, approved Feb. 19th, 1857) 
 made it the duty of district attorneys, whenever any inhabitant of the 
 state was arrested or claimed as a fugitive slave, to use all lawful means 
 to protect and defend him and procure his discharge. It provided that 
 the application of any district attorney, stating that a person was ar- 
 rested and claimed as a fugitive slave, should be sufficient authority to 
 authorize a writ of habeas- corpus; that if upon hearing of a writ of 
 habeas corpus the person claimed as a fugitive slave was not dis- 
 charged, he should have the right to an appeal to the circuit court; 
 that on such appeal either party might have a trial by jury; that the 
 claim of such person being a slave should not be deemed proved except 
 by the testimony of at least two credible witnesses testifying to facts 
 directl}^ tending to establish the truth of such claim; that any per- 
 son who upon any trial arising under the act should falsely represent 
 or pretend that any person was or is a slave, should pay a fine of one 
 thousand dollars and be imprisoned not less than one year; that on trial 
 of any prosecution arising under the act no deposition should be re- 
 ceived as evidence; that no judgment recovered against any person for 
 any neglect or refusal to obey the fugitive slave law of 1850 or any 
 of its provisions should be a lien on any real estate within the state, 
 or should be enforcible by the sale on execution of any real or personal 
 property, but that all such sales should be void. This act remained on 
 our stat-iite books until 1862 when the essential features of it were 
 repealed. 
 
 In 1859 the legislature passed and the governor of the state ap- 
 
36 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 proved a joint resolution, which, to show the spirit of the times, is 
 here inserted in full. 
 
 "Whereas, the supreme court of the United States has assumed ap- 
 pellate jurisdiction in the matter of the petition of Sherman M. Booth 
 for a writ of habeas corpus, presented and prosecuted to final judgment 
 in the supreme court of this state, and has, without process, or any of 
 the forms recognized by law, assumed the power to reverse that judg- 
 ment in a matter involving the personal liberty of the citizen, asserted 
 by and adjudged to him by the regular course of judicial proceedings 
 upon the great writ of liberty secured to the people of each state by 
 the constitution of the United States: 
 
 "And whereas, such assumption of power and authority by the 
 supreme court of the United States, to become the final arbiter of the 
 liberty of the citizen, and to override and nullify the judgments of the 
 state courts, declaration thereof, is in direct conflict with that provision 
 of the constitution of the United States which secures to the people 
 the benefits of the writ of habeas corpus; therefore, 
 
 "Resolved, the senate concurring. That we regard the action of 
 the supreme court of the United States, in assuming jurisdiction in the 
 case before mentioned, as an arbitrary act of power, unauthorized by the 
 constitution, and virtually superseding the benefit of the writ of habeas 
 corpus, and prostrating the rights and liberties of the people at the foot 
 of unlimited power. 
 
 "Resolved, That this assumption of jurisdiction by the federal ju- 
 diciary, in the said case, and without process, is an act of undelegated 
 power, and therefore without authority, void, and of no force. 
 
 "Resolved, That the government formed by the constitution of the 
 United States was not made the exclusive or final judge of the extent of 
 the powers delegated to itself; but that, as in all other cases of compact 
 among parties having no common judge, each party has an equal right 
 to judge for itself, as well of infractions as of the mode and measure of 
 redress. 
 
 "Resolved, That the principle and construction contended for by the 
 party which now rules in the councils of the nation, that the general 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 37 
 
 government is the exclusive judge of the extent of the powers dele- 
 gated to it, stop nothing short of despotism, since the discretion of 
 those who administer the government, and not the constitution, would 
 be the measure of their powers; that the several states which formed that 
 instrument, being sovereign and independent, have the unquestionable 
 right to judge of its infraction; and that a positive defiance of those 
 so\'ereignties, of all unauthorized acts done or attempted to be done 
 under color of that instrument, is the rightful remedy." 
 
 The action of the supreme court, thus virulently denounced, was 
 had in pursuance of an act of Congress passed during the first adminis- 
 tration of President Washington, and approved by him. 
 
 The resolution must, of course, be classed as brutum fulmen, and 
 was probably so regarded by many who gave their votes in its support. 
 But it illustrates how little respect was entertained for and accorded to 
 the government of the United States in the days before the war. 
 
 The breaking out of the war in 1861 brought new and often very 
 important questions both to the federal and to state courts. 
 
 Probably no war in human history has, in all its phases, been so 
 largely adjudicated upon in courts of justice as the war of the American 
 rebellion. The time was when the very question of whether it was a 
 war or not was disputed in judicial forums; and this question was not 
 finally set at rest until the decision of the celebrated Prize Cases by 
 the supreme court of the United States in 1863. (2 Black, 635.) The 
 interesting topic of the federal war decisions is however outside the 
 scope of this paper. 
 
 The first two war cases which came to the supreme court of Wis- 
 consin presented questions of the validity of enlistments of minors. 
 Both cases turned upon the construction of statute law. The enlist- 
 ment of a young man over eighteen years was held valid, while one of a 
 boy less than seventeen, without the consent of parent or guardian and 
 with knowledge of his age on the part of the recruiting officer, was ad- 
 judged illegal. In re Gregg, 15 Wis., 479; In re Higgins, 16 Wis., 351. 
 
 The next case presented a question of the highest importance under 
 
38 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the constitution of the United States. It was, whether the writ of 
 habeas corpus can be suspended by the act of the President of the 
 United States. Here was a question of the Hberty of the citizen on 
 the one hand, of the power of the government on the other. 
 
 The writ of habeas corpus is the recognized means by which one 
 imprisoned, or in any manner deprived of his Hberty, may bring the 
 question of the lawfulness of the restraint before a judicial tribunal. 
 Generally speaking, this right should never be denied him. But there 
 may be extraordinary exigencies when considerations of public safety 
 override every private right, and when even a judicial inquiry into the 
 lawfulness of an imprisonment cannot be permitted. All this is recog- 
 nized by the constitution of the United States in the following provision 
 found in section 9 of article I: "The privilege of the writ of habeas 
 corpus shall not be suspended unless when in case of rebellion or in- 
 vasion the public safety may require it." 
 
 But tlije question remains, what authority, under the government 
 of the 'United States, shall determine when and under what circum- 
 stances, in case of rebellion or invasion, the public safety requires the 
 suspension of the writ. The general subject of article I of the consti- 
 tution is legislative. Can any but the legislative power suspend the 
 writ? This was the important point of the Kemp case. 
 
 The question was not new. It had arisen almost immediately on 
 the opening of hostilities and had been the subject of a decision by the 
 chief justice of the United States and of much public discussion. In 
 April, 1861, when violent resistance had been offered to the passage of 
 union troops from Philadelphia to Washington, President Lincoln 
 issued a military order, among other things, suspending the writ of 
 habeas corpus along the route of travel through the state of Maryland, 
 which bodies of soldiers hastening to Washington were obliged to take. 
 A month later, one John Merriman, who was enlisting recruits for the 
 rebel army in the city of Baltimore, was arrested by the military authori- 
 ties and lodged in Fort McHenry. A writ of habeas corpus was issued 
 to General Cadwalader, then in command, by Chief Justice Taney 
 General Cadwalader made return, stating the treasonable action of 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 39 
 
 Merriman on account of which he had been arrested and was detained, 
 but decHned to produce his person, claiming suspension of the writ 
 under the order of the President. The chief justice issued an ineffectual 
 attachment against General Cadwalader and wrote an elaborate opinion, 
 holding that the President had no authority to suspend the writ, and 
 that in the absence of action by Congress to that effect, disobedience to 
 the writ, under any circumstances, was an unjustifiable infraction of the 
 constitution and the laws of the United States. This led at once to 
 much heated discussion. Mr. Bates, the attorney general of the United 
 States, in an ofificial letter to the President, took the extremely opposite 
 view, holding that the President had the right to suspend the writ in 
 all cases of arrest made by his authority, when, in case of rebellion, the 
 public safety, in his opinion, required it. The administration atted on 
 the advice of the attorney general, and the President, from time to 
 time, made orders for the suspension of the writ applying to different 
 places and circumstances. 
 
 In the fall of 1862 the question came up in the state of Wisconsin. 
 There had been forcible resistance to the execution of the conscription 
 law in the county of Ozaukee. A number of persons, among them 
 Nicholas Kemp, were arrested by the military authorities and confined 
 at Camp Randall. A write of habeas corpus was issued by the supreme 
 court of Wisconsin to Brigadier-General Elliot, commanding the de- 
 partment of the northwest, calling upon him tO' produce their persons 
 and his warrant for their detention before the court. General Elliot 
 made return, stating the ground of the arrests, claiming a suspension of 
 the writ of habeas corpus under general orders No. 141 issued by the 
 President the 24th of September, 1862, and declining to release the 
 prisoners from military custody. The question of the jurisdiction of 
 the state court to enquire into the lawfulness of an arrest, when the 
 latter is claimed under federal authority, which, as we have seen, was, 
 at a later period, raised and decided in re Tarble, was not raised in this 
 case. It turned wholly upon the right of the President to suspend the writ. 
 
 The order of the President, referred to, contained the following 
 provisions: 
 
40 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 "First: That during the existing insurrection, and as a necessary 
 measure of suppressing the same, all rebels, and insurgents, their aiders 
 and abettors, within the United States, and all persons discouraging 
 volunteer enlistments, resisting militia drafts, or guilty of any disloyal 
 practice affording aid and comfort to rebels against the authority of 
 the United States, shall be subject to martial law, and liable to trial and 
 punishment by court martial or military commissions. 
 
 "Second: That the writ of habeas corpus is suspended in respect to 
 all persons arrested, or who are now, or hereafter during the rebellion 
 shall be imprisoned in any fort, camp, arsenal, military prison, or other 
 place of confinement, by any military authority or by sentence of any 
 court martial or military commission." 
 
 The court approached the case with all the care which the ques- 
 tion involved demanded. Each of the three judges delivered a separate 
 opinion. It was unanimously decided that the suspension of the writ 
 under section 9 of article I of the constitution was a legislative, not 
 an executive, act; and that it required an act of Congress to give it 
 validity. 
 
 A distinction, which is not alluded to, and does not seem to have 
 been recognized, in the decision of Chief Justice Taney in the Aler- 
 riman case, was insisted upon with much force and clearness, between 
 a general suspension, a de jure suspension it might be called, of the 
 privilege of the writ, and a de facto suspension which necessarily takes 
 place on the actual theater of war and its immediate surroundings, where 
 martial law is declared and rules the hour, with which civil tribunals may 
 not interfere. In the latter case it was admitted that disregard of the 
 writ by a military officer under the authority of the commander in chief 
 of the armies would be justified. But in this case the arrest took place 
 at a great distance from the actual theater of war, in a state where 
 martial law did not exist, where martial law had not superseded the civil 
 authorities, and the judges were unanimous in the opinion that in such 
 a case a suspension of the writ can only be effected by an act of 
 Congress. 
 
 Coming from a court of unquestionable loyaltv, as well as recog- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 4^ 
 
 nized ability, the decision could not fail to produce a great effect upon 
 the country. It contributed vei'y largely in inducing Congress at its 
 next session to pass an act for the suspension of the writ. In re Kemp, 
 16 Wis., 359. 
 
 At the same term of court a question deeply affecting the re-enforce- 
 ment of the armies at the front came before the supreme court. A draft 
 to fill quotas had been made. The drafted men were in camp. Appli- 
 cation was made for a habeas corpus for their release. It was claimed 
 that the draft was "without color of legal authority under any statute or 
 law of this state or of the United States, and altogether arbitrary and 
 unlawful." The case arose before the "enrollment law," being "an act 
 for the enrolling and calling out of the national forces," approved 
 March 3, 1863, had been enacted by Congress; and the question was, 
 whether the then existing laws, which left the enrolling of the militia 
 and enforcing a draft very largely to rules and regulations to be estab- 
 lished by the President, were constitutional and sufficient to authorize 
 the draft. By its decision the court unanimously sustained the con- 
 stitutionality of the law and the validity of the rules and regulations 
 established by the President under it. In re Griner, 16 Wis., 423. 
 
 In another case heard at the same term of court, the question was, 
 whether an alien, resident in the state of Wisconsin, who had declared 
 his intention to become a citizen of the United States, who was a quali- 
 fied elector under the laws of the state and who had exercised his right 
 -of suffrage, being drafted, could claim exemption from military duty by 
 •reason of his alienage. The supreme court held that he could not; that 
 although not a citizen of the United States, he must be regarded as a 
 citizen of the state of Wisconsin, and that while entitled to enjoy its 
 benefits he could not escape the burdens of such citizenship. In re 
 Wehlitz, 16 Wis., 448. 
 
 It seems like a parody that in a later case, the same court was com- 
 pelled to decide that while the resident alien, who had simply declared 
 'his intention to become a citizen of the United States and was entitled to 
 .vote and had voted, was subject to draft, yet his son, who had been 
 brought here in infancy and lived here ever since and had voted, could 
 
42 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 not be drafted. The reason was clear. While he had voted, he was not 
 entitled to vote. His votes were illegal. For this he might have been 
 punished; but under our laws he was an alien and exempt from the 
 duties of citizenship. The case strongly illustrates the crudeness of our 
 naturalization laws. In re Conway, 17 Wis., 527. 
 
 The case of Richard Oliver, 17 Wis., 681, brings us back once more 
 to the question of habeas corpus. Young Oliver, in whose behalf a peti- 
 tion had been presented, had been enlisted in the army. He was less 
 than eighteen years of age. The merits of the application came strictly 
 within the case of Higgins, already referred to. But in the meantime 
 the act of Congress, approved March 3d, 1863, authorizing the Presi- 
 dent of the United States to suspend the writ of habeas corpus, had 
 been passed, and the President, in pursuance of its provisions, had issued 
 his proclamation, dated September 15th, 1863, suspending the privilege 
 of the writ in cases where persons were held under the command of 
 the government as prisohers or as soldiers. It was contended that the 
 act and the proclamation under it were invalid. The argument was, that 
 the suspension of the writ could only be accomplished by a direct act 
 of Congress; that the act in question did not of itself suspend it, but 
 sought to delegate the power of suspension to the President. Mr. 
 Justice Paine, in delivering the opinion of the court, admitted that 
 the wording of the act afforded room for criticism, but concluded that in 
 substance the act itself suspended the privilege of the writ, leaving 
 it to the President to say in what cases the suspension should be in- 
 sisted on. With this interpretation the act and proclamation were sus- 
 tained and the writ was refused. 
 
 The question of the constitutionality of the act of Congress, making 
 treasury notes of the United States a legal tender in the payment of 
 debts, came before our supreme court at an early date. It was held at 
 the January term of 1864, that the act was valid and applied to pre-exist- 
 ing, as well as subsequently contracted debts. In making this de- 
 cision our supreme court followed the supreme court and the court of 
 appeals of the state of New York. Breitenbach vs. Turner, 18 Wis., 
 140. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 43 
 
 The case of Brodhead vs. The City of Milwaukee, 19 Wis., 624, 
 brought a very interesting question before the supreme court. It was 
 as to the constitutionaHty of an act of the legislature authorizing cities, 
 villages and towns to raise money by taxation for the purpose of paying 
 bounties to volunteers who had enlisted or should enlist so as to fill the 
 quotas assigned to the respective locahties under calls by the Presi- 
 dent for troops. Does the power of municipal taxation extend to such 
 a purpose? That was the chief question involved, although there were 
 minor ones also upon particular features of the law in question. The 
 court sustained the act, and held the tax which had been levied under it 
 valid. 
 
 The Ozaukee county draft riots, referred to in the Kemp case, were 
 destined once more to command the attention of our courts. It will 
 be remembered that in the Kemp case it was decided that the sus- 
 pension of the writ of habeas corpus claimed was illegal. It was also 
 decided that the detention of Kemp as a prisoner in Camp Randall was 
 illegal. The arrests had been made in 1862. The execution of the 
 draft, under the then existing laws, was under the direction of the gov- 
 ernor of the state. The honorable Edward Salomon was then gov- 
 ernor. After his term of office had expired, John Druecker, one of the 
 prisoners, brought suit against him in the circuit court of Milwaukee 
 county for damages for an unlawful arrest and false imprisonment. 
 It was a test case. The arrests had been quite numerous and if the 
 suit had been successful many others would have followed in its wake. 
 The case came to trial at Milwaukee before the Honorable Arthur Mac- 
 Arthur, circuit judge, and a jury, in October, 1865. The full extent of 
 the riot or insurrection against the enforcement of the laws for the re- 
 cruitment of our armies, as it was claimed to be, and the necessity 
 of resorting to military force for its suppression, were here first given 
 in evidence. The arrest had been made on the 13th of November, 1862, 
 and it appeared that after being detained for twelve days the plaintiff 
 was delivered to the United States military commander, and that the 
 governor had no control over him after that time. At the end of a 
 long and patient trial. Judge MacArthur, in dignified and manly Ian- 
 
44 HISTORY OF THE BENCH. AND BAR OF WISCONSIN. 
 
 •guage, taking the form of a charge to the jury, gave his opinion that 
 the plaintiff could not recover. A few extracts from this able opinion 
 may be read with interest. 
 
 "When riot is to be subdued," said the learned judge, "the only 
 means at once lawful and imperative, seem in times of quiet unusual 
 and severe. Authority has but one virtue, and that is the promptness 
 and decision with which responsibility is assumed. In such a crisis 
 there is no time to hunt for precedents. Hesitation is synonymous 
 with anarchy. Action is demanded to prevent threatened ruin and 
 bloodshed. So that the appropriate remedies for such an evil belong 
 to that violent class which inflame the system in order to eradicate the 
 disease. Coercion is neither optional nor avoidable. It is the only re- 
 source of legitimate authority, and the faithful executive who under 
 -such trying and overwhelming necessities is influenced only by con- 
 siderations of public duty, cannot be followed by vexatious litigation 
 for error of judgment. I have listened with emotion to the impressive 
 and eloquent observations of the distinguished counsel for the plain- 
 -tififs (the late Honorable Harlow S. Orton) on the danger of irrespon- 
 sible power and on the necessity of protecting the citizen from its op- 
 pressions. These sentiments are part of our education and habits, and 
 as we are almost the only instance of a powerful government with a 
 well-defined bill of personal liberty, of all others we should be the 
 most anxious to preserve it; and it is gratifying that animated ad- 
 dresses on this subject are always vindicated by the most popular favor 
 and afifection of the people. We should not, however, forget that 
 public right and liberty are just as sacred as that claimed for the in- 
 -^dividual, and when these are threatened with tvimult and violence, the 
 magistrate who averts the evil is a public benefactor, and conserves 
 all rights, both of the state and of the citizen, and liberty and law are 
 preserved for the benefit of all alike." 
 
 He then points out that in conformity with the act of Congress 
 
 known as the conscription act of 1862, which, as we have seen, our 
 
 supreme court had held valid in the Griner case, the President had con- 
 
 , ferred the duty of enforcing the conscription under it upon the governor 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 45 
 
 of the state, that actual and threatened violence and armed resistance 
 had justified a resort to military interference, that the arrests and im- 
 prisonments in question were made in overcoming the resistance and 
 enforcing the law by military force, and held that for acts thus done in 
 the discharge of duty without malice to the plaintiff, the governor could 
 not be held liable in an action for damages. The case was taken to the 
 supreme court by appeal, and is reported in 21 Wis., 621. The de- 
 cision of Judge MacArthur was there unanimously affirmed in an elab- 
 TDrate opinion delivered by Mr. Justice Downer. 
 
 An interesting case came before our supreme court long after the 
 close of the war involving the question of the suspension of the statutes 
 of hmitations in favor of residents of the states in rebellion. 
 
 The plaintiff was a resident of New Orleans during the war. In 
 1873 he brought an action of ejectment for an interest in lands in 
 ^^^isconsin. A plea of ten years' adverse possession under color of title 
 was sought to be avoided by disabiHty to sue growing out of the state 
 of war. The plaintiff claimed that his disability continued until August 
 20th, 1866, when the complete suppression of the rebellion and restora- 
 tion of peace were declared by proclamation issued by President John- 
 son. It had been so decided in favor of a resident of New Orleans by 
 the supreme court of Indiana. Perkins vs. Rogers, 35 Ind., 124. 
 
 On the other hand, it was contended that under President Lincoln's 
 -proclamation of non-intercourse issued the 13th of July, 1861, which de- 
 clared certain states, including Louisiana, in insurrection, but in terms 
 excepted from its effect those parts of such states which might be "from 
 time to time occupied and controlled by the forces of the United 
 States," the occupation of the city of New Orleans by General Butler, 
 which became complete on the 6th of May, 1862, removed every dis- 
 ability, or at least, that the further proclamation of the President, 
 dated April 2d, 1863, which expressly excepted the port of New Orleans 
 from the territory in which commerce and intercourse were interdicted, 
 had that effect. 
 
 The court in an opinion by Mr. Justice Cole sustained the latter 
 view. Ahnert vs. Zann, 40 Wis., 622. 
 
46 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Several other decisions will be noticed in connection with legislation 
 relating to the war. 
 
 -. The legislature of 1861 held its first session amid the rumbhngs of 
 coming war. By joint resolution, approved January 21st, 1861, it 
 pledged the state to the support of the Union and tendered to the 
 President of the United States "whatever aid in men and money" might 
 be required "to enable him to enforce tlie laws* and uphold the author- 
 ity of the federal government." 
 
 By another joint resolution, approved February ist, 1861, the legis- 
 lature endorsed the report of representatives Tappan, of New Hamp- 
 shire, and Washburne, of Wisconsin, a minority of the congressional 
 committee of thirty-three, to the effect that it be 
 
 "Resolved, That the provisions of the constitution are ample for 
 the preservation of the Union and the protection of the material in- 
 terests of the country; that it needs to be obeyed rather than amended; 
 and that extrication from the present difficulties should be looked for in 
 efforts to protect and preserve the public property and the enforcement 
 of the laws, rather than in new guarantees for particular interests, and 
 concessions to unreasonable demands." 
 
 A joint resolution of March 12th, 1861, recognized in the inaugural 
 address of Abraham Lincoln "the words of the true patriot and the 
 sagacious statesman," and pledged "the faith of the people of Wiscon- 
 sin to aid the President of the United States in carrying out the prin- 
 ciples .indicated in his inaugural address to the fullest extent, putting 
 into the scale, if need be, 'our lives, our fortunes and our sacred honor.' " 
 
 x\n act was passed and approved April 13th, 1861, that in case a call 
 should be made by the President of the United States upon this state 
 for aid in maintaining the Union and the supremacy of the laws, or to 
 suppress rebellion or insurrection, the governor should "take such 
 measures as in his judgment shall provide in the speediest and most 
 efficient manner for responding to such call," and to that end accept the 
 services of volunteers and supply them with uniforms and necessary 
 equipments, and appropriating one hundred thousand dollars for the 
 purposes of the act. (Chap. 239.) 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 47 
 
 The legislature, in both branches, had resolved that no^ business 
 should be done after three o'clock of the 13th of April, and that final 
 adjournment should take place on the 15th. In the meantime Fort 
 Sumter was assailed and surrendered. This induced the continuance of 
 the session for two days, during which the act just referred to was 
 amended by increasing the appropriation from one to two hundred 
 thousand dollars, and also appropriating twenty-five hundred dollars to 
 the governor of the state for his contingent expenses as commander-in- 
 chief. (Chap. 307.) 
 
 An act was also passed directing the bank comptroller "for the 
 purpose of sustaining the credit of the banks of the state of Wisconsin, 
 and protecting the people who hold the circulating notes thereof, from 
 the unnecessary loss which would be occasioned by the sacrifice of 
 the state stocks held in trust for the redemption of such circulating 
 notes, in the present unsettled state of national afifairs," to suspend all 
 action under existing laws for the sale of securities pledged for the 
 payment of bank notes until the first of December, 1861, and prohibit- 
 ing notaries public, under severe penalty, from protesting any notes of 
 Wisconsin banks for non-payment prior to that date. (Chap. 308.) 
 
 Chapter 309, amended by chapter 7 of the special session, exempted 
 all persons entering the military service, during such service, from all 
 civil process, and required all courts to suspend proceedings in any 
 action against such a person until it should be made to appear that he 
 ^vas no longer in the military service. 
 
 This done, the legislature adjourned. But the state of the country 
 became rapidly more alarming and on the 15th of May it met again, 
 under the call of the governor, in extra session. This session was de- 
 voted exclusively to war measures, the most important of which will 
 be briefly noted. 
 
 By chapter 2, counties, towns, cities and villages were authorized 
 to expend rhoney and to levy taxes to provide for the support of fam- 
 ilies of volunteers who needed such assistance. 
 
 Chapter 4 provided for raising and organizing not tO' exceed six 
 regiments of infantry, including three already called into service of 
 
48 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the United States; and that in case all six should be called, two addi- 
 tional regiments should be raised as a reserve, and that as often as a call 
 should be made by the general government, the governor should be 
 authorized to accept the services of volunteers to the extent of two regi- 
 ments in addition to the call, so that a reserve force should be con- 
 stantly ready. The term of service was to be three years. The details 
 of enlistment, organization, drill and instruction, the purchase and dis- 
 tribution of military stores and supplies were all provided for. The act 
 made an appropriation of one million dollars. 
 
 Chapter 5 sharply prohibited the rendering of aid to the rebellion, 
 and directed the seizure of arms and munitions of war intended for rebel 
 use that might be found in the state. 
 
 Chapter 6 provided for the procurement, by purchase if necessary., 
 of arms and accoutrements, appropriating fifty thousand dollars. 
 
 Chapter 8 added five dollars per month to the pay of enlisted men 
 having families dependent upon them for support. 
 
 Chapter 13, the final act, authorized the governor, treasurer and 
 secretary of state to issue bonds and borrow money for the purposes of 
 a war fund to an amount not exceeding one million dollars. All the 
 other acts depended for their practical utility largely upon this. The 
 public credit did not then run high and it was clear that the sale of the 
 bonds would be an impossibility if any doubt of their validity was suf- 
 fered to remain. 
 
 The money was wanted to aid in the suppression of the rebellion, — 
 the rebellion of the southern states against the federal government. 
 There was no invasion, insurrection or war within the borders of the 
 -State of Wisconsin. The loans could be contracted only under section 
 7, article VIII, of the constitution of the state, which authorized the 
 borrowing of money "to repel invasion, suppress insurrection or defend 
 the state in time of war." There was an obvious question, therefore, 
 whether the insurrection of the southern states brought the situation 
 within the pun-iew of this constitutional provision. 
 
 Under these circumstances, the governor appealed to the judges of 
 the supreme court to give him their public opinion of the constitu- 
 
HISTORY OF THE BENCH AND BAR OF WISCpNSIN. 49 
 
 tionality and validity of the law. It was doubtless irregular, and under 
 ordinary circumstances improper, that the judges should give an extra- 
 judicial opinion upon a question which might come before them for 
 adjudication. But the exigency of the crisis was supreme, and the 
 judges addressed the following letter to the governor: 
 
 "STATE OF WISCONSIN, SUPREME COURT, 
 
 "Clerk's Office, Madison, June 5th, 1861. 
 "His Excellency Alex. W. Randall, 
 
 "Governor of Wisconsin. 
 "Sir: — We are in receipt of your communication of the 4th inst. 
 asking our opinion as to the constitutionality of chapter 239 of the 
 general laws of 1861, entitled 'an act to provide for the defense of the 
 state and to aid in enforcing the laws and maintaining the authority of 
 the federal government,' and chapter 13, of the extra session held in 
 May, 1861, entitled 'an act to provide for borrowing money to repel 
 invasion, suppress insurrection and defend the state in time of war,' and 
 as to whether bonds, issued under the above acts and in conformity to 
 their provisions, would be valid and binding against the state. 
 
 "Your excellency is pleased to intimate that it has become a neces- 
 sity in the present exigencies of the state and country to appeal to us 
 for an opinion upon the above question. Yielding to this emergency, 
 we have felt it to be our duty to give you our opinion upon the ques- 
 tion suggested in your communication, and we would therefore state 
 that we have considered the above mentioned laws, and from the ex- 
 amination we have given them we entertain no doubt as to their con- 
 stitutionality, and we are of the opinion that the bonds issued in con- 
 formity to their provisions will be valid and binding upon the state of 
 Wisconsin. Respectfully yours, 
 
 "LUTHER S. DIXON, Chief Justice. 
 "O. COLE, Associate Justice. 
 "P. S. — Mr. Justice Paine is at present in Milwaukee and has had no 
 opportunity of acting upon the subject matter of your communication. 
 
 "O. COLE." 
 
 By the aid of this opinion, the bonds were negotiated and their 
 validity has never been brought in question. 
 
so HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 At the regular session of 1862 a number of amendments were 
 passed to the legislation already mentioned. The five dollars extra 
 pay per month to soldiers having families dependent upon them for 
 support was, by chapter 112, approved March 12th, 1862, confined to 
 organizations then already in the field or in process of formation. 
 
 An additional bond issue of two hundred thousand dollars for the 
 benefit of the war fund was authorized by chapter 228, and a special 
 fund of twenty thousand dollars was put at the disposal of the governor 
 for the care of the sick and wounded soldiers of the state. (Chapter 
 
 37I-) 
 
 At a special session held in September, 1862, a general act was 
 
 passed, authorizing counties, towns, cities and villages to raise money 
 
 to pay bounties to volunteers. (Chapter 13.) 
 
 By far the most important act of the legislature of 1862, and one of 
 the most important enacted during the war, was chapter 11 of the 
 special session. It conferred upon the qualified electors of the state, 
 who were in the military service of the United States or of the state, 
 the power to exercise the right of suffrage at the several posts, camps 
 or places where the regiment, battery or company to which the soldier 
 belonged might be on the day of election. The act contained careful 
 provisions guarding such elections in the field and for canvassing and 
 returning the vote. It was passed by the party in power against 
 strenuous opposition. Both its constitutionality and its expediency 
 were strongly questioned. Its constitutionality was tested early in 1863 
 before the supreme court of the state in an action of quo warranto in- 
 volving the office of sheriff of Dane county. Its validity was sustained 
 and the "soldiers' vote" thus became'established as an important factor 
 in pohtical contests. State ex rel. Chandler vs. Main, 16 Wis., 398. 
 
 The legislature of 1863 extended the soldiers' right to vote to ju- 
 dicial elections. (Chapter 59.) It authorized an additional issue of 
 bonds to the amount of three hundred and fifty thousand dollars for the 
 war fund. (Chapter 157.) By chapter 196, it appropriated a further 
 sum of fifteen thousand dollars for the care of the sick and wounded 
 soldiers of the state. Chapter 215 authorized the governor to pur- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 51 
 
 chase new flags for regiments in the service of the United States fr'om 
 this state, to replace those worn out in the service. By joint resohition 
 number 4, a state flag was formally adopted. This flag had been in 
 use before but without formal action on the part of the legislature. An 
 elaborate act "for the enrollment of persons liable to perform military 
 duty, and the organization of the state militia for active service," was 
 passed. (Chapter 242.) A special tax of two hundred thousand dollars 
 was levied for the "war fund." (Chapter 139.) 
 
 ' In 1864 the legislature authorized a further loan for the benefit of the 
 war fund by the issue of bonds to the amount of three hundred and fifty 
 thousand dollars, redeemable in and after the year 1896. (Chapter 
 360.) At the same time and for like purposes, a loan of three hundred 
 thousand dollars was authorized upon certificates of indebtedness, bear- 
 ing interest at the rate of seven per cent, per annum, and payable at the 
 pleasure of the state treasurer on or before six months from the date of ' 
 issue. (Chapter 361.) A special tax of two hundred thousand dollars 
 for the war fund was also imposed. (Chapter 349.) 
 
 By chapter 117 the laws relating to the payment of five dollars extra 
 per month to soldiers having dependent families were revised and 
 consolidated. By this act, all the enlisted or drafted non-commissioned 
 officers, musicians and private soldiers theretofore or thereafter mus- 
 tered into the mihtary service of the United States or of the state, in 
 pursuance of any law of Congress or of the state, having families de- 
 pendent on them for support were to receive from the time of being 
 mustered, in addition to the pay provided by the United States, the 
 sum of five dollars per month. Deserters and soldiers dishonorably dis- 
 charged were excepted. Tliis additional allowance was not paid each 
 month but remained in the state treasury to be paid on such orders as 
 might be drawn in accordance with the law for the support and main- 
 tenance of the family of the soldier. The balance remaining was paid to 
 him at the expiration of his term of service. The definition of a "family" 
 within the meaning of the act and the manner of drawing the money 
 were minutely defined in the act. Under this act all Wisconsin soldiers 
 serving in the Wisconsin regiments, who had families dependent upon 
 
52 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 them for support, received five dollars per month extra pay throughout 
 their term of service. 
 
 A very large number of special laws authorizing bounties in particu- 
 lar localities to be paid to volunteers for enlistment and providing for 
 raising the money by taxation or loans or both, were enacted at this 
 session. 
 
 The legislature of 1865, besides enacting numerous special laws for 
 the raising of bounties for volunteers in specific locaHties, enacted a 
 general law authorizing the qualified electors of each town, city and vil- 
 lage in the state to raise by tax such sums of money as might be neces- 
 sary to pay bounties to volunteers who might have enlisted or should 
 thereafter enlist under the call of the President of the United States, 
 of December 19th, 1864, for three hundred thousand men, and who 
 should thereafter enlist under any further call of the President. This 
 was the act the validity of which was questioned in the case of Brodhead 
 vs. The City of Milwaukee, already noticed. (Chapter 14.) 
 
 Chapter 179 of 1865, made it the duty of the adjutant-general to 
 compile complete muster and descriptive rolls, with all subsequent in- 
 formation obtainable, pertaining to the military history of each indi- 
 vidual member of the several military organizations of the state which 
 were then or might thereafter be in the service of the eeneral govern- 
 ment during the rebellion. 
 
 Chapter 465 placed the further sum of fifteen thousand dollars at the 
 disposal of the governor for the care of the sick and wounded soldiers 
 of the state. 
 
 By chapter 478 large additional financial provision was made for the 
 "war fund." The governor, secretary of state and treasurer were au- 
 thorized to borrow upon certificates of indebtedness of the state, pay- 
 able on or before seven months from their date and bearing seven per 
 cent, interest, such sums as they might deem necessary, not exceedino- in 
 the aggregate eight hundred and fifty thousand dollars; and a special 
 tax to the same amount, to be levied in the year 1865, was authorized 
 to meet their payment. 
 
 A memorial addressed by this legislature to the President of the 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 53 
 
 United States, not by reason of its importance but for its unique char- 
 acter, may be entitled to notice in this place. It insists "that no propo- 
 sition for peace should be entertained by the government of the United 
 States other than full submission" on the part of the rebels in arms; and 
 renews the pledge of the state to bear its full share of the burdens and 
 hardships imposed; but finds fault with the distribution of the burdens 
 of recruitment of the armies imposed by the government of the United 
 States, and of the great injustice which has been especially done in the 
 case of the state of Wisconsin. It contains, among others, the following 
 reflection: "Your memorialists are of opinion that General Fry (the 
 provost-marshal-general) has a new arithmetic, the principles of which 
 he alone understands; that by its practical application, when he sub- 
 tracts the credits which a district is entitled to, from the quota re- 
 quired from such district, such quota is thereby enlarged." The 
 memorialists ask "respectfully, though earnestly" that this weak arith- 
 metician be removed from his present position, and "that the same be 
 given to some person competent to discharge the duties thereof, and 
 who will have some regard for equahty and right." 
 
 The legislature at this session incorporated the Wisconsin soldiers' 
 home. The original act incorporated fifty ladies, chiefly of Milwaukee, 
 to constitute a body corporate of the name and style of "Wisconsin 
 soldiers' home," to be permanently located at Milwaukee, for the pur- 
 pose of providing and caring for the sick, wounded and disabled soldiers 
 temporarily sojourning in the state of Wisconsin. This organization, it 
 is well known, raised a large sum of money, which was subsequently 
 turned over tO' the United States upon the establishment at Milwaukee 
 of the national home for disabled volunteer soldiers. 
 
 It has been thus attempted roughly to sketch the most important 
 legislation bearing on the war enacted during the years of its dura- 
 tion. A few acts of subsequent years, of a germane character, remain 
 to be noticed. 
 
 Chapter 5 of the laws of 1866 authorized towns, cities and villages 
 to erect monuments to the memory of deceased soldiers of the war. 
 
 This law is still in force. (Section 937, R. S.) 
 4 
 
54 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 By chapter 69 of the same year a "Soldiers' orphans' home" was 
 established. It was located at Madison. It was supported by annual 
 appropriations by the state until the year 1876, when by chapter 21 of 
 the laws of that year, its property was turned over to the state university. 
 The trustees of the orphans' home had been authorized, by chapter 72 
 of the laws of 1874, to find homes for orphans over fourteen years of age 
 outside of the home. For orphans so placed, the state continued to 
 provide through the trustees of the soldiers' orphans' home after the 
 home itself had been discontinued. 
 
 In 1887 the legislature, by a series of acts, provided for a separation 
 of indigent soldiers of the late war, and their families, from other poor 
 and indigent persons supported more or less at the public expense. 
 It was made the duty of the several counties to levy a separate tax 
 for the relief of "indigent or needy Union soldiers, sailors and marines, 
 and the indigent or needy wives, widows and minor children of indigent 
 or deceased United States soldiers, sailors or marines;" and three com- 
 missioners, of whom at least two were to be honorably discharged sol- 
 diers, to be appointed by the county judge, were charged with the 
 disbursement of this fund. Provisions were also made for supporting 
 destitute Union soldiers and their families at the "Wisconsin veterans' 
 home," then recently established under the auspices of the grand army 
 of the republic at Waupaca. (Chapters 513, 518 and 304.) 
 
 These enactments have been more or less amended, but in their gen- 
 eral scope and spirit remain in full force. 
 
CHAPTER III. 
 
 JUDGE DOTY'S COURT AND THE LAND TRIBUNAL OF 
 
 MILWAUKEE. 
 
 It is not within the scope of this work to go extensively into pre- 
 territorial judicial history, which consists mainly of the proceedings of 
 military tribunals, trials before justices of the peace in a limited number 
 of places now within the state, and the acts of the judges of the county 
 courts of Brown and Crawford counties, which were organized in 1821, 
 and, later, of the Iowa county court. Concerning all these tribunals 
 and their proceedings there is much more tradition than history. The 
 court presided over by James Duane Doty will be considered as the 
 proper starting point. 
 
 In January, 1823, Congress passed an act providing for an additional 
 judge of the territory of Michigan, whose jurisdiction was co-extensive 
 with the counties of Brown, Crawford and Michilimackinac — the two 
 former embracing the territory comprised in the present states of Wis- 
 consin, Iowa, Minnesota, and part of that in the Dakotas. Previous 
 to that time the only separate courts established in that vast expanse of 
 territory were county courts of very limited civil and criminal jurisdic- 
 tion and justices' courts. All important civil cases and all criminal cases, 
 except for petty offenses, were tried by the supreme court at Detroit. 
 The first judge of this new court was James Duane Doty, appointed by 
 President Monroe in the winter of 1823. 
 
 Mr. Doty was born at Salem, Washington county, New York, in 
 1799. In the year of his appointment as judge he married the eldest 
 daughter of General Collins, of New Hartford, Oneida county, New 
 York. In 1818 Mr. Doty settled at Detroit, and in 1819 became a mem- 
 ber of the bar of the supreme court of the territory of Michigan. Sub- 
 sequently he was secretary of the legislative council and clerk of that 
 court. Soon after his appointment as judge he went to the territory 
 
 55 
 
56 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 comprising his district, organized the judiciary and opened court. His 
 first residence in what is now Wisconsin was at Prairie du Chien ; he re- 
 mained there but a short time before removing to Green Bay, where 
 he made his home for twenty years. He discharged his judicial duties 
 until 1837, when he was succeeded by Judge Irvin. Of his record as a 
 judge but little has been written, probably because.his subsequent career 
 in the field of politics and as a speculator in lands was the subject of so 
 much discussion that his judicial career was lost sight of. 
 
 The law creating the court over which Judge Doty presided did not 
 give the tribunal a name, but he called it the "circuit court of the 
 United States" for each particular county in which it was held. It 
 had concurrent jurisdiction with the county courts in the counties of 
 Michilimackinac, Brown and Crawford, and soon after Iowa county 
 was formed, in that county likewise, and in all civil cases appeals might 
 be taken to it from such courts. The court was vested, within the three 
 counties first named, with the jurisdiction and power possessed by the 
 supreme court of Michigan territory "to the exclusion of the original 
 jurisdiction" of the latter; but the supreme court was to have full power 
 to issue writs of error in all civil cases. The proceedings of the new 
 "court in criminal cases were final. One term was required to be held 
 in each county yearly: At Prairie du Chien on the second Monday iii 
 May; at Green Bay on the second Monday in June, and at Mackinac 
 on the third Monday in July. Consul W. Butterfield, in an article in vol. 
 5 of the Magazine of Western History, p. 699, says that Judge Doty 
 held his first court in the county of Michilimackinac in July, 1823,* on 
 his way, really, to Prairie du Chien, where he proposed to live. At this 
 
 *The writer quoted says that the first term of "Judge Doty's court was begun 
 on the twenty-first. On the next day Rix Robinson and Varnum J. Card were 
 admitted attorneys and counsellors of the court — Henry S. Baird having been 
 admitted, it seems, the day previous, although no mention is made of it on Doty's 
 record, which is before me. Joseph Bailey was appointed prosecuting attorney pro 
 tern. The first case on the docket was Card vs. Eaton and Harmon, on an appeal 
 from the county court. [The dates given above, and those which follow, as to the 
 holding of special and regular terms by Judges Doty and Irvin, of their courts, 
 i have taken from Doty's MS., record.]" 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 57 
 
 term an Indian named Mat-way-way-go-zhic.f was tried for the murder 
 of another Indian named Aish-Kaunz. The persons called as witnesses 
 for the prosecution were all Indians — male and female. The wife of the 
 dead Indian was questioned as to her cjualifications to testify in the case. 
 She said she stood in the fear of the Great Spirit. She believed those 
 who are good go to a good place after death, and those who are bad, to a 
 bad place. "If I should tell a lie now before these men (the jury) about 
 this matter I should be punished hereafter — I should go to the bad 
 place." She was permitted to give evidence. The next person called 
 was an Indian of the male sex. He did not know whether there was 
 a Great Spirit or not. He had never seen him. He did not know 
 him. He did not know where his (the Indian's) forefathers had gone. 
 He did not see them go anywhere. Tliis "noble red man" was required 
 to stand aside. The father of the dead Indian was now called to the 
 stand. He believed there was a Great Spirit. When he was young he 
 used to pray to him if in trouble or in want; but now he was old, and he 
 did not think it necessary; if he were still young it might be different. 
 "I do not know that there is a good or bad place to which we go after 
 death — I rather think there is neither. I am an old man — many of my 
 friends have died, and if there is any such place I think I should have 
 heard of it from some of them. No one ever came back to tell me." 
 This Indian was not allowed to testify. Mat-way-way-go-zhic was 
 found not guilty. 
 
 The writer in the Magazine of Western History continuing, said: 
 Judge Doty held his next court, beginning on the tenth of May, 1824, in 
 Prairie du Chien. This may be said to have been the first real court 
 ever held within the limits of what is now the state of Wisconsin. 
 County courts, it is true, had been held both at Prairie du Chien and 
 Green Bay, as already stated; but when Judge Doty, at his first term at 
 the former place, declared in open court that judicial proceedings were 
 entirely new to the inhabitants of Crawford county, he simply affirmed 
 what everyone knew was the fact. 
 
 tBaird and Card were assigned by the court as attorneys for the defendant. 
 
58 HISTORY OF THE BENCH _AND BAR OF WISCONSIN. 
 
 Joseph Rolette was one of the associate justices of the county court 
 at Prairie du Chien. He did not look kindly upon the proceedings when 
 appeals were taken from his tribunal to the one presided over by Judge 
 Doty. He was not accustomed to have his decisions gainsaid. He 
 waxed wroth, and cursed the new court. He would rather see a band 
 of Winnebagoes in the building then used as a court house "than such a 
 damned court." The result of all this was that his honor. Judge Rolette, 
 was arrested by the sheriff and brought before the "circuit court of the 
 United States for Crawford county" — his honor, Judge Doty, on the 
 bench — to answer for contempt. This cooled the irate associate justice 
 of Crawford county; and he declared he had drank, on the day he had 
 spoken the contemptuous words, "one and a half bottles of wine and 
 brandy" — in short, that he was intoxicated. He was fined ten dollars 
 and costs. 
 
 The third session of "Judge Doty's court" was the second regular 
 term in Michilimackinac county. The fourth session was a special 
 term at Green Bay, in Brown county, for the trial of criminal cases 
 only — the first one in that county. It commenced on the 4th of Oc- 
 tober, 1824. Here the first grand jury in Wisconsin was empaneled. 
 The following account shows the nature of the business before the court 
 at that term and is probably indicative of what was characteristic of 
 other terms of court. There were forty-five indictments found by the 
 grand jury — twenty-eight of which were for illicit cohabitation, the aim 
 being to break up the prevalent custom of taking Indian women as 
 wives of the traders and trappers without the formality of a legal mar- 
 riage, merely buying them of their fathers, as a canoe or a pony would 
 be bought for a price. At first the inhabitants were disposed to resent 
 this interference with established customs, but they found the suave and 
 courtly judge a man of iron and without fear. They for the most part 
 pleaded guilty, and the judge suspended sentence whenever they con- 
 sented to legally marry the dusky mothers of their children. One sturdy 
 fellow refused to marry, paid his fine of fifty dollai's, and continued to 
 live with his unwed Indian mate. He was again indicted, and the court 
 kindly advised him to marry before the opening of the court next day. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 59 
 
 He at first stood out, but appeared in court next morning, presented 
 his marriage certificate and said: "There, I hope the court is satisfied. 
 I have married the squaw." 
 
 On the 1 8th of June, 1828, the jurisdiction of the county courts of 
 Michihmackinac, Brown and Crawford was abohshed, and all suits, in- 
 dictments, recognizances, processes, writs, appeals and all other matters 
 and things whatsoever pending in or returnable thereto were transferred 
 and made returnable to Judge Doty's court. This continued until July 
 31, 1830, when the jurisdiction of the county courts was restored. On 
 the 2d of April previous Congress changed the place of holding the 
 court presided over by Judge Doty, upon the division of Crawford 
 covmty, from Prairie du Chien to Mineral Point, the county seat of Iowa 
 county. Courts were thereafter regularly held by Judge Doty, not only 
 at Green Bay, but at Michilimackinac and Mineral Point, until the ex- 
 piration of his second term, February i, 1832, when he retired from the 
 bench, and was succeeded by David Irvin, who continued to be judge 
 until the organization of the territory. 
 
 In the discharge of his judicial duties and as a speculator in lands 
 Judge Doty had traveled over much of the territory now constituting 
 Wisconsin, and in connection with the former governor of Michigan 
 had bought the land on which the city of Madison is located. By his 
 energy and tact he secured the enactment of a law designating Madison 
 as the capital of the then territory of Wisconsin. In 1838 he was elected 
 delegate to Congress,* and held that office until 1841, in which year he 
 was appointed by President Tyler as governor of the territory. He 
 served in that capacity about three years. "His administration, owing 
 to local causes, was a stormy one, and the records and press of the 
 period are filled with details of bitter contention."t Soon after the 
 expiration of his service as governor he was a commissioner to treat 
 with the Indian tribes of the northwest, with whom treaties were made. 
 
 ♦Judge Doty's right to a seat in Congress was contested by George W. Jones, 
 the sitting delegate, on the ground that the latter's term had not expired. See Strong's 
 History, p. 275. 
 
 tFathers of Wisconsin, p. 72. 
 
6o HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 In 1846 he represented Winnebago county in the constitutional conven- 
 tion, in which he was chairman of the standing committee on the 
 boundaries and name of the state, and a member of the committee on 
 miscellaneous provisions. "Owing to the bitter memories and jealousies 
 of the period, the part he took in the general proceedings was not 
 especially prominent, yet his minute geographical knowledge and long 
 personal experience from actual travel and investigation rendered his 
 services invaluable to his associates."* In 1849 Governor Doty was 
 elected to Congress, and in 1851 was re-elected; he "procured by his in- 
 dustry and influence important legislation for the state and his con- 
 stituency; serving both terms with great honor to himself and to the 
 satisfaction of the people of his district. 
 
 "In 1853 he retired to private life, and was recalled by President 
 Lincoln in 1861, first as superintendent of Indian affairs and afterwards 
 as governor of Utah, holding this last position at the time of his death 
 at Salt Lake City, June 13, 1865. 
 
 "Governor Doty was what is termed a self-made man. Without the 
 advantages of a collegiate education, yet by constant study and a close 
 observation of men and things, he well supplied its place. His vigorous 
 mind was eminently practical and his reading very extensive, especially 
 in all that related to the government of the country and the history of 
 the northwestern territory. 
 
 "Personally he had the advantage of a fine and commanding per- 
 sonal presence; an open, intelligent and pleasing countenance, and a 
 most winning address; and though he had passed nearly all his life on 
 the frontier, he will be long remembered by all who had the pleasure to 
 know him as a gentleman of polished manners and of most courtly and 
 dignified bearing."! 
 
 Judge Doty's judicial duties were performed under great difficulties. 
 In 1825, 1826, 1827 and 1828 he and H. S. Baird traveled from Green 
 Bay to Prairie du Chien in a bark canoe by way of the Fox and Wis- 
 consin rivers, their crew being composed of six or seven Canadians or 
 
 *Fathers of Wisconsin, p. 72. 
 
 tThe last three paragraphs are from the preface of vol. i, Pinney's Reports, p. 44. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 6l 
 
 Indians; the time occupied in making the trip was seven or eight days 
 going and the same in returning. In May, 1829, Judge Doty, M. L. 
 Martin and H. S. Baird went from Green Bay to Prairie du Chien on 
 horseback, taking about seven days for the journey. They were the 
 first party of white men that had accomphshed that journey by land. 
 
 In those early days the accommodations for holding the court were 
 
 neither extensive nor elegant. There were no regular court houses or 
 
 ■pubHc buildings, and the courts were held in log school houses, where 
 
 there were such, or in rooms provided for the special occasion, destitute 
 
 of comfortable seats and other fixtures for the convenience of the court, 
 
 bar and jurors. In May, 1826, when the term of the court was to be 
 
 held at Prairie du Chien, the judge, on arriving there, found the town 
 
 entirely under water, the inundation being caused by the overflowing 
 
 of the Mississippi and Wisconsin rivers. The troops had abandoned the 
 
 old fort, and the inhabitants had fled to the high grounds near the bluffs; 
 
 but two or three houses were occupied, and only the upper stories in 
 
 those. It will naturally be imagined that under such circumstances the 
 
 court could not be held. But not so. A large barn situated on dry 
 
 ground, was selected and fitted up for the accommodation of the court, 
 
 bar and suitors. The court occupied the extensive threshing floor, 
 
 about fourteen by thirty-five feet. The jurors occupied the hay and 
 
 grain mows on either side of the judge. When a jury retired to consider 
 
 of their verdict they were conducted by an officer to another barn or 
 
 stable. 
 
 The following account of an informal tribunal which served the 
 public most exceUently is from chapter 30, vol. i , History of Milwaukee 
 county, and was written by Joshua Stark. It shows the intelligence, 
 love of order and high sense of right and justice which characterized 
 the early settlers of the region in and about Milwaukee: 
 
 Until 1835, the eastern half of what is now the state of Wisconsin 
 Nvas known as Brown county, of which the county seat was Green Bay. 
 In that year that part of Brown county lying south of the present 
 counties of Sheboygan and Fond du Lac, and including an area of more 
 than eighty miles square, was set off by the territorial legislature of 
 
 & 
 
62 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Michigan as "Milwaukee county," with its county seat at the mouth of 
 the Milwaukee river. For judicial purposes, however, this district re- 
 mained attached to Brown county until after Wisconsin became a sep- 
 arate territory. Milwaukee county at this time was virtually an un- 
 broken wilderness of forest and prairie. The title of the native Indian 
 tribes had just been extinguished by treaty, by the terms of which 
 the territory south and west of the Milwaukee* river remained still in 
 their rightful occupation. The lands in that part of the present Mil- 
 waukee county, described as townships seven and eight, in range 
 twenty-two, were surveyed in the winter of 1834-35, and were offered for 
 sale in August, 1835, at the government land ofhce in Green Bay. The 
 survey of the rest of the county was begun in the winter of 1835-36, 
 and completed in 1837, but the lands were withheld from sale until 
 February, 1839. 
 
 Solomon Juneau had maintained an Indian trading-post on the site 
 of the present city of Milwaukee for several years prior to 1834. The 
 first indications of a permanent settlement of the region manifested 
 themselves in the latter part of the year 1834, when emigrants from 
 the eastern and middle states began to arrive at the post and in its 
 vicinity. Their number increased quite rapidly in 1835, and the land 
 sale of that year found many purchasers eager to invest in and about 
 the future city. Anticipating the speedy organization of the new ter- 
 ritory of Wisconsin, and expecting that the lands about the Milwaukee 
 settlement would be at once opened to occupation and purchase, and 
 allured by reports of the extraordinary beauty and fertility of the region 
 and the brilliant prospects of the infant colony at the mouth of the 
 river, emigrants came flocking into the district in 1836 and 1837 i" 
 Tapidly increasing numbers. Many located in Milwaukee, but the 
 greater number struck out into the forest, and sought to establish by 
 occupation and improvement a certain proprietorship — or priority of 
 right — over portions of the public domain. Controversies, of course, 
 quickly arose among these pioneer settlers. What amount of land each 
 person should be entitled to claim, what improvements must be made 
 to secure his claim, within what time such improvements should be 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 63 
 
 made and similar questions quickly came up for settlement. Conflicts 
 arose respecting the boundaries of claims, and the possession of claim- 
 ants was frequently disputed by those desiring to secure their land. 
 Disputes of this sort grew more frequent and serious as people realized 
 that there was neither law nor court to regulate the rights of parties 
 and adjust their differences. There was no statute securing a right of 
 pre-emption. The policy of the government on this question was not yet 
 settled. The lands had not been offered for sale, and were not subject 
 to entry. The settler could not buy until the government chose to 
 sell, and his very occupation meanwhile was unlawful — a trespass upon 
 the public domain of the United States. Congress gave no heed to 
 the appeals of the settlers for an extension of the pre-emption laws of 
 this territory. In this condition of affairs the people of Milwaukee 
 and vicinity proceeded with wise deliberation to provide themselves with 
 a remedy for the evils of lawlessness and violence which threatened 
 them. They met at the court house in Milwaukee, March 13, 1837, 
 and solemnly adopted a code of laws prepared by Byron Kilbourn — 
 one of their number — which assumed in brief and clear terms to define 
 the rights and duties of the settlers upon the public lands and to pro- 
 vide machinery for their adjudication and settlement. 
 
 By this code the county of Milwaukee^then including Waukesha 
 county — was divided into precincts, each having its "precinct club." 
 Committees were appointed by these clubs to hear evidence and decide 
 disputed claims. Aggrieved parties to such disputes were given the 
 right of appeal to a "judiciary committee" of the county whith sat in 
 Milwaukee, and whose decision was final. A formal registry of claims 
 was provided for, and Doctor I A. Lapham^ — afterward eminent as a 
 scientist — was appointed register, and served as such without charge 
 until after the public land sale in February, 1839, when the settlers had 
 their first opportunity to secure the title to their lands by purchase. 
 Fifteen prominent residents of the county served as the judiciary com- 
 mittee. 
 
 Under this code of laws the county was settled and improved with- 
 out serious trouble. These laws (so called) and the decisions of the 
 
64 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 tribunals established by them, were implicitly obeyed, Or were en- 
 forced with exemplary justice and rigor. Each man holding a cer- 
 tificate of the registry of his claim felt as secure of his homestead as if 
 he had the government patent in his pocket. Under the protection 
 thus afforded, the forests were cleared away, fences were made, cabins, 
 stables, barns and even more stately structures were built; fields were 
 cultivated and considerable progress was made in farming and in many 
 other industrial pursuits, while the settlers were waiting for an oppor- 
 tunity to purchase their lands from the government. As a result, 
 each of the settlers, whose claim was duly registered under the settlers' 
 code, finally secured his land and his improvements without difficulty 
 at the minimum price. In all this the only aid or support given to 
 the pioneers of Milwaukee by legislation or the established courts, 
 was that afforded by an act of the territorial legislature approved Jan- 
 uary 19, 1838, which gave to any person who might be settled on any 
 of the public lands in the territory, where the same had not been sold 
 by the general government, the same rights of action for the protection 
 of his possession, to the extent of his claim, without proof of actual en- 
 closure, as if he had the title in fee; provided, that such claim should 
 not exceed in number of acres the amount limited to any one person 
 "according to the custom of the neighborhood" in which such land was 
 situated, and should in no case exceed three hundred and twenty acres, 
 and that such claim should be marked out so that its boundaries could be 
 readily traced, and that no person should be entitled to sustain any 
 action for possession of, or injury to, his claim, unless he had actually 
 made an improvement "as required by the custom of the neighbor- 
 hood" in which his claim was situated. 
 
CHAPTER IV. 
 THE TERRITORIAL SUPREME COURT AND ITS JUDGES. 
 
 The territorial government of Wisconsin was established by act of 
 Congress approved April 20, 1836. The territory of Wisconsin em- 
 braced within its boundaries all the territory now included in the states 
 of Wisconsin, Iowa and Minnesota, and a part of what was formerly 
 the territory of Dakota. After July 3, 1836, Congress declared that 
 such territory should be separate for the purposes of a temporary gov- 
 ernment. The judicial power of the territory thus created was vested 
 in a supreme court, district courts, probate courts and justices of the 
 peace. The supreme court consisted of a chief justice and two associate 
 justices. It was provided that a term of court should be held at the 
 seat of the territorial government annually. 
 
 The territory was to be divided by the legislative assembly into three 
 judicial districts, in each of which a district court was to be held by one 
 of the judges of the supreme court at such times and places as should 
 be prescribed by law. The jurisdiction of the several courts, both 
 appellate and original, and that of the probate courts and justices of 
 the peace, was to be fixed by law, but the act of Congress provided that 
 the supreme and district courts should possess chancery as well as 
 common law jurisdiction, and that each of the district courts should have 
 and exercise the same jurisdiction as was vested in the circuit and 
 district courts of the United States. Writs of error and appeals from the 
 supreme court were allowed and were to be taken to the supreme court 
 of the United States in the same manner and under the same regula- 
 tions as from the circuit courts of the United States when the amount 
 in controversy exceeded two thousand dollars. The jurisdiction of 
 justices' courts was limited to cases in which the amount claimed did not 
 exceed fifty dollars, and excluded cases in which the title to land was 
 in dispute. The members of the supreme court were to be appointed 
 
 65 
 
66 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 by the President by and with the advice and consent of the senate. 
 Probate judges and justices of the peace were to be appointed by the 
 governor by and with the consent of the council. 
 
 The first appointments of judges were Charles Dunn, chief justice; 
 David Irvin and William C. Frazer, associate justices; W. W. Chapman 
 was appointed attorney and Francis Gehon marshal. On the 4th of 
 July, 1836, the governor, secretary and judges took the oath of office at 
 Mineral Point, which event constituted a novel and interesting element 
 in a grand celebration of the national anniversary which was generally 
 participated in by the inhabitants of the lead mine region, of which - 
 Mineral Point was then the recognized metropolis. 
 
 At the first meeting of the territorial legislature, at Belmont, in what 
 is now La Fayette county, October 25, 1836, the territory was divided 
 into judicial districts, and the judges were assigned thereto. The 
 counties of Crawford and Iowa constituted the first district, with Chief 
 Justice Dunn as judge; the counties of Dubuque and Des Moines the 
 second, with Irvin as judge; the counties of Milwaukee and Brown the 
 third, with Frazer as judge. 
 
 The first session of the supreme court of the territory of Wisconsin 
 was held December 8, 1836, in the council chamber of the legislative 
 assembly at Belmont, then in the county of Iowa, now in La Fayette 
 county. The judges present were Charles Dunn, chief justice, and 
 David Irvin, associate judge. The proceedings of the court were con- 
 fined to its organization, no judicial business being ready. John Catlin 
 was appointed clerk and qualified as such. Justus Deseelhurst was ap- 
 pointed crier. The record expresses that "Hon. David Irvin presented 
 a commission from Andrew Jackson, President of the United States, 
 as one of the associate judges of the supreme court of the territory of 
 Wisconsin, and a certificate of qualification from Henry Dodge, gov- 
 ernor of said territory." 
 
 Henry S. Baird, Peter Hill Engle, Daniel G. Fenton, James Duane 
 Doty, James B. Dallam, Thomas P. Burnett, William W. Chapman, 
 Lyman J. Daniels, Barlow Shackelford, William W. Gardner, Hans 
 Crocker, Joseph Leas, William Smith, James H. Lockwood, John S. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. b/ 
 
 Horner and James Nagle were admitted as attorneys and counselors 
 of the court. 
 
 Henry S. Baird, having been appointed attorney general, took 
 the oath of office and was duly qualified. 
 
 D. G. Fenton made a motion that the court appoint Thomas P. 
 Burnett reporter of the court, which motion, after the court had taken 
 a recess, was granted. Thereupon, the court adjourned without day. 
 
 The time fixed by law for holding the next term was July 3, 1837, 
 and the place Madison. Two judges of the court not being then in 
 attendance, the court was adjourned until the next day; and because of 
 the absence of a quorum the same course was taken each day until July 
 8, when an adjournment was taken "until court in course." 
 
 The next term was fixed for the third Monday of July (i6th day), 
 1838. At the opening of court Judge William C. Frazer was the only 
 member present, and an adjournment was taken until 3 o'clock p. m., 
 at which hour Judge Dunn appeared and court was opened by Francis 
 Gehon, marshal of the territory. William H. Banks, F. S. Lovell, H. 
 W. Wells, Francis J. Dunn and Jonathan E. Arnold were admitted as 
 attorneys. 
 
 The first proceeding in a cause was the entry of a rule in the case 
 of Mau-zau-mon-nee-kah, plaintiff in error, vs. The United States, de- 
 fendant in error, requiring the former to assign errors on or before the 
 first day of the next term and continuing the cause until that time. 
 
 A number of motions were heard and acted upon; three rules were 
 adopted, and the term was adjourned. 
 
 At the July term, 1839 (15th day of the month) the court was 
 composed of Charles Dunn, David Irvin and Andrew G. Miller. Nu- 
 merous motions were made and considered. The first mention of a writ- 
 ten opinion being filed in a case is that of Elizabeth Mills vs. United 
 States, on a motion to quash the writ and dismiss the proceedings. This 
 term lasted from the 15th until the 17th of July. 
 
 The last session of the territorial supreme court was held August 2, 
 1847, and the last entry of a cause is in the case of Alexander W. Stow 
 vs. Rufus Parks, which was taken under advisement. 
 
0«5 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 There was no change in the members of the court during the period 
 of its subsequent existence. At the July term, 1839, Simeon Mills was 
 appointed clerk in place of John Catlin, resigned, and La Fayette Kel- 
 logg was appointed deputy clerk. At the July term, 1840, Mr. Mills re- 
 signed as clerk and Mr. Kellogg was appointed. He held the office until 
 the organization of the state supreme court. 
 
 Following are sketches of the lives of Judges Dunn, Irvin and 
 Frazer. A sketch of Judge Miller's life is given in the chapter which 
 treats of the federal courts in Wisconsin and their judges. 
 
 CHARLES DUNN. 
 
 By far the most prominent personality in the legal profession in 
 the western part of Wisconsin dtiring her territorial existence and early 
 statehood was Charles Dunn. He was born December 28, 1799, at 
 Bullitt's Old Lick, Bullitt county, Kentucky, about sixteen miles east of 
 Louisville, and died April 7, 1872, at Mineral Point, Wisconsin. His 
 father. Captain John Dunn, was a salt manufacturer at the Lick and was 
 born in Dublin, Ireland. His mother's, maiden name was Amy Burks, 
 of the Burks family of Burks Valley, Virginia. Charles was the oldest 
 of a family of five sons and four daughters, and at the age of about nine 
 years was sent to school at Lotiisville for about nine years, when he 
 was called home and sent on a business tour to Virginia, Maryland 
 and Washington. On his return home he read law for a short time with 
 Warden Pope, a distinguished lawyer of Louisville, and afterwards he 
 proceeded to Frankfort and continued his law reading for about two 
 years with the eminent John Pope, then secretary of state, and who was 
 the first law professor in the Transylvania university at Lexington. 
 
 He then removed to Illinois, and arrived at Kaskaskia, the capital of 
 the state, in May, 1819, where he completed his law studies under the 
 direction of Nathaniel Pope, district judge of the United States for the 
 district of Illinois. In 1820 he was admitted to the bar. He then com- 
 menced practice at Jonesboro in Union county, Illinois, and in 1821 
 married Miss Mary E. Shrader, daughter of Judge Otho Shrader, who 
 had been an United States judge in Missouri territory. 'Mr. Dunn re- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 6y 
 
 mainecl in practice at Jonesboro for several years, and then removed 
 to Golconda, in Pope county. For two sessions he was engrossing clerk 
 of the Illinois house of representatives, and for about five years its chief 
 clerk. In 1829 he was appointed by Gov. Ninian Edwards acting com- 
 missioner of the Ilhnois and Michigan canal, and with his associates, 
 Edmund Roberts and Dr. Jayne, surveyed and plotted the first town 
 of Chicago. In the early part of 1832 Indian troubles commenced and 
 a requisition was made upon the state for troops to engage in service 
 against the native Indians headed by Black Hawk. Three brigades of 
 volunteers responded to the call, and Mr. Dunn entered the service 
 and engaged in the Black Hawk war as captain of a company which 
 he raised in Pope county, where he then resided. His company was as- 
 signed to the second regiment, commanded by Colonel John Ewing, 
 attached to the first brigade, commanded by General Alex. Posey. 
 General Posey's command crossed the Rock river at Fort Dixon, and, 
 marching next towards Kellog's grove, received intelligence of a severe 
 conflict between Colonel Dement's spy battalion and the Indian forces 
 under Neopope. After a rapid march General Posey's forces reached 
 the grove and found that Colonel Dement's command had routed the 
 Indians, whereupon they followed the trail of the retreating Indians up 
 Rock river, out of Illinois, and into Wisconsin. Captain Dunn was 
 severely, and it was thought fatally, wounded in what is now called the 
 town of Dunn, in Dane county, by a cowardly sentinel whom he, as 
 officer of the day, was proceeding to relieve. He was taken back to Fort 
 Dixon, where he remained until the close of the war by the battle of 
 Bad Axe. 
 
 As soon as he had sufficiently recovered he returned to his home, 
 and in the spring of 1833 acted as assistant paymaster in paying off the 
 first brigade; and during that year resumed the practice of his profession. 
 In 1835 he was elected from Pope county to the house of representa- 
 tives of the state legislature, and was chairman of the judiciary commit- 
 tee during the session. In the spring of 1836 he was, upon the recom- 
 mendation of the Illinois delegation in Congress, and the delegate from 
 Wisconsin, George W. Jones, appointed by President Jackson chief 
 5 
 
70 HISTORY OF THE 3ENCH AND BAR OF WISCONSIN. 
 
 justice oi Wisconsin territory. He arrived at Mineral Point on the 4th 
 day of July, 1836, and was then sworn into office, which position he con- 
 tinued to hold until the state judiciary was organized, holding his last 
 term of court under the territorial organization at Mineral Point in Oc- 
 tober, 1847. 
 
 The first term of the supreme court of the territory, as well as its 
 first legislature, convened at Belmont, now in La Fayette county, in the 
 fall of 1836. Judge Dunn about this time took up his residence at 
 Belmont, and lived there until his death in the month of April, 1872. 
 The present village of Belmont, on the C, M. & St. P. R. R., is three 
 miles to the southeast of the territorial capital. Leslie station, on the 
 Lancaster and Galena branch of the C. & N. W. R. R., is within a half 
 mile of the site of the old capitol and a little nearer to the Dunn resi- 
 dence. There is not a vestige left of the capitol building; tradition says 
 that its substantial frame was removed to a neighboring farm and was 
 there made over into a barn. 
 
 The location is one of great natural beauty. Within a radius of a 
 mile, and directly east from the site, is the Belmont mound. A little 
 south of west and three miles from Belmont mound, stands the Platte 
 mound. These mounds are upon a high plateau, and are both about a 
 half mile in diameter at the base and about five hundred feet high. In 
 the gently undulating prairie country which surrounds them they are 
 very prominent objects, and from their summits can be seen the three 
 states of Wisconsin, Illinois and Iowa. When Judge Dunn made Bel- 
 mont his residence it was with the hope and expectation that it would 
 be the permanent seat of government of the territory and future state. 
 Madison, the City of the Lakes, soon after won the prize, but Judge 
 Dunn's attachment for Belmont, its natural beauty and quiet, never 
 waned. 
 
 Judge Dunn's term of office as territorial chief justice from 1836 
 until the admission of the state into the Union in 1848, was no sinecure. 
 He not only presided over the appellate court but in addition was nisi 
 prius judge of the first district, comprising the present counties of Dane, 
 Green, La Fayette, Grant and Iowa, and all the territory north and 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 71 
 
 west of the Wisconsin river and east of the Mississippi. These onerous 
 and manifold duties he discharged well and honorably. 
 
 He was a member of the last constitutional convention of the state, 
 from La Fayette county. He was president pro tem. of the convention 
 and chairman of the judiciary committee, over which body he exercised 
 a commanding influence. The valuable reservations and provisions of 
 the constitution in the interests of the people were largely the result of 
 his broad, far-seeing mind and absolute integrity. The power reserved 
 .to the legislature to alter or repeal the charter of any corporation created 
 by it was his work. 
 
 He favored a limitation in the constitution of the right of suffrage 
 to citizens of the United States who had lived in the state one year, only 
 excepting those who resided in the territory at the time of the ad- 
 mission of the state. In the rejection of this proposal he was disap- 
 pointed. With the experience of the state, it is not certain that at this 
 day his advice would not be followed in that respect. 
 
 Judge Dunn was a candidate for the United States senate in the 
 democratic caucus of the first state legislature, but was defeated by 
 General Dodge. This disappointment, with the advent to power soon 
 after of the republican party, terminated his political career. He was 
 not a politician and knew nothing of the methods essential to political 
 success, nor had he a desire to learn them. His manhood revolted 
 against the scheming and trickery of the inveterate office-seeker. He 
 lived and died in the Mississippi valley, never having seen the capitol of 
 the nation, or either ocean which washes the shores of the republic* 
 
 From the time Wisconsin became a state Judge Dunn lived quietly 
 at Belmont and practiced law, meeting his clients for consultation gen- 
 erally in his country home, and traveling about the circuit in his own 
 conveyance, attending the terms of court in the diflerent counties. It 
 was during this period that the older members of the bar remember 
 him, his associates prior to that time having all passed away. In those 
 
 *In 1858 Judge Dunn was a candidate for Congress against C. C. Washburn, and 
 in 1869 was induced to accept tlie democratic nomination for chief justice of the 
 supreme court and became a candidate against Luther S. Dixon. He was defeated 
 in both instances; in the latter the vote was 65,683 for Dunn and 72,470 for Dixon. 
 
72 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 days hotel accommodations were limited and inferior. Judge Dunn's 
 room was always the best room in the best hotel of the town where 
 court was in session, and was universal headquarters for members of the 
 bar, no matter how distinguished or humble. Frequently every facility 
 for seating his guests, even to his bed, would be taxed to the utmost 
 capacity, and there the long evenings were spent in social communion, 
 eminently satisfying to all, in which the judge was the principal actor. 
 His hospitality was genuine and unlimited. Every worthy member of 
 the bar had in him a friend. He had no use for the unworthy members 
 of the profession, and they instinctively knew it. 
 
 During this period Judge Dunn was employed in many important 
 cases. He commenced very few of them, but was employed to assist 
 at the trial, and no more effective advocate has ever practiced at the 
 Wisconsin bar. He was not demonstrative in argument. His strength 
 consisted in the strength of his own convictions, beyond which he would 
 not go, expressed in a quiet way, in plain but classic diction, and as 
 forcible as language could be made. His character for integrity added 
 force to his arguments with the court or jury. No one could withhold 
 respect for the man. He was well-versed in the principles of the law, 
 and was possessed of a mind preeminently analytical. 
 
 While at the bar he paid little attention to the reported cases, never 
 troubling with them except when they were thrust upon his considera- 
 tion by his opponent. He was a great moral power, untainted with false- 
 hood in any form, and this power was directed by the most undaunted 
 courage. He was universally courteous and considerate in his inter- 
 course with the court and bar. If he had resentment to vent, a keen 
 rapier wielded with a bow did the work more effectually than anger's 
 bludgeon could have done it. The following incident will illustrate: 
 
 The judge was the attorney for the husband and defendant in a di- 
 vorce case in La Fayette county, which excited great public interest and 
 filled the court house with spectators during a trial which consumed 
 nearly two weeks. The sheriff was the late Major Kyle, a prince of good 
 fellows, a great friend of Judge Dunn's, very polite and inclined to gal- 
 lantry. It was noticed during the trial that whenever the fair plaintiff 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 73 
 
 and her female friends who attended her came into the crowded court- 
 room the sheriff met them at the door and conducted them through 
 the crowd to seats reserved for them, while the modest defendant was 
 permitted, alone and unaided, to edge his way through the press to 
 the side of his counsel. 
 
 This annoyed Judge Dunn, but no one was aware of it until he 
 commenced his plea to the jury. In opening he alluded to the sympathy 
 for the wife which pervaded the court-room and doubtless to some ex- 
 tent affected the jury. "Even," said the judge, "my friend. Major Kyle, 
 has shown himself during this trial to have been aiTected by this in- 
 sidious influence, and while the defendant, my client, has been per- 
 mitted to make his way through the crowded court-room to the side 
 of his counsel, as best he might, the fair plaintiff with her numerous 
 attendants has been met by the gallant sheriff at the door of the court- 
 room, and conducted by him to seats reserved for them, in a manner 
 which seems to say: here comes the distinguished plaintiff and her 
 retinue, make way before them." The jury and spectators appreciated 
 the point, and Major Kyle's pride received a severe blow from which 
 it took him some time to recover. 
 
 Personally, Judge Dunn was large and stalwart, capable of great en- 
 durance. He was fond of hunting in his early and middle life, when 
 the country abounded in game. The wound he received in the Black 
 Hawk war made him a little lame ever afterwards. His gestures while 
 speaking were very peculiar, consisting exclusively of movements of the 
 hand and forearm, the arm above the elbow remaining stationary. 
 
 An inveterate old litigant of Grant county, who knew the judge 
 well and had felt his great power with a jury frequently, said of the 
 judge's only gesture that it reminded him of a "pump-handle." He had, 
 however, the greatest confidence in the "pump-handle" and its worker 
 when enlisted on his side of a case, and the greatest fear of the combina- 
 tion when enlisted on the side of his opponent. 
 
 The courage of Judge Dunn was marked. The following incidents 
 as described by the pen of the late Moses M. Strong will illustrate: 
 
 "In 1836 an atrocious murder had been perpetrated in Grant county, 
 
74 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 and the person charged with the crime committed to jail to await the 
 action of the grand jury. He was brought before Judge Dunn upon 
 a writ of habeas corpus, who, after a full investigation, admitted the 
 prisoner to bail, which he obtained and was set at liberty. The inhab- 
 itants in the vicinity of the murder were very much incensed, and as- 
 sembled in large numbers, with the avowed intention of lynching the 
 accused, who only saved his life by flight. His sureties were also com- 
 pelled to leave the territory at the hazard of their lives. The mob, in 
 which were some very respectable citizens, also passed a resolution (of 
 which they notified the judge) that if he attempted to hold another 
 term of court in that county, it would be at the risk of his life. 
 
 "On the day appointed for the holding of the court, the judge ap- 
 peared as usual, without guard or escort, as calm and undisturbed as 
 though he was entirely ignorant of the menaces of the mob, many of 
 whom, as he knew, were in attendance, and, without having even 
 spoken to any member of the bar or to the sherifif of the danger with 
 which he was threatened, he took his seat upon the bench, with his 
 accustomed quiet dignity, and ordered the sherifif to open court. It was 
 observed that he took with him to his seat his saddle bags, and placed 
 them immediately by his side. This was his arsenal. The firm, deter- 
 mined and resolute purpose of the judge to hold court at that time and 
 at that place, in despite of all threats of personal violence, was so un- 
 mistakably developed in every lineament of his unblanched features that 
 all appearance of mob violence was effectually subdued. The sheriff 
 opened court, and its business proceeded in the usual orderly manner." 
 
 This occurrence brings to mind the case of the prosecution of Vine- 
 yard of Grant county, for the killing of Arndt, in the territorial council 
 chamber in IMadison, on the nth day of February, 1842. The quarrel 
 arose over the confirmation by the council of the nomination of one 
 "Baker as sheriff of Grant county, made by Governor Doty, which \"ine- 
 yard opposed and Arndt favored. In the heat of debate \'ineyard in 
 effect charged Arndt with falsehood, which charge Arndt, immediately 
 upon the adjournment of the council, demanded Vineyard should re- 
 tract. This the latter refused to do, and Arndt struck him one or two 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 75 
 
 blows with his fist. Vineyard thereupon shot Arndt with a pistol, kill- 
 ing him instantly. 
 
 The public was intensely excited over the event, which was the more 
 terrible from the fact that Arndt was shot down in the presence of his 
 aged father, who was then visiting him. Prejudice ran very high against 
 Vineyard, and, on the 14th of February, he was expelled from the 
 council by a vote of ten to one. He remained in jail at Madison until 
 the loth of March, when he was taken before Judge Dunn on a habeas 
 corpus at Mineral Point, when, after a thorough examination, of the 
 facts, the judge admitted him to bail in the sum of $10,000. 
 
 Here again Judge Dunn was severely criticized, and Charles Dick- 
 ens, the novelist, who was then in America, and incidentally engaged in 
 collecting material for his "American Notes," subsequently published, 
 refers to this action of Judge Dunn's as an incident showing the reck- 
 less disregard of life in this country. The judge's course was, however, 
 subsequently vindicated by the acquittal of Vineyard by a jury of Green 
 county, where he was tried. 
 
 Much has been said about the trial of Vineyard. The sentiment of 
 the time attributed Vineyard's acquittal to the matchless eloquence of 
 his counsel, the late Moses M. Strong, of Mineral Point; and, as in those 
 days the standard of an advocate's moving power was supposed to bear 
 a close relation to the quantity of liquid stimulant imbibed, it was said 
 that Mr. Strong, during his plea to the jury for the accused, frequently 
 regaled himself with whisky diluted with water. A statement of the 
 kind was published in the New York Tribune. 
 
 Mr. Strong, however, later in life, when the events of the trial could 
 be dispassionately referred to, repudiated the idea that he addressed the 
 jury while intoxicated to any extent, and stated the fact to be that the 
 result of the trial was brought about in a manner more consistent with 
 -the experience of the lawyer of to-day, and much more in keeping with 
 the prevailing characteristics of Mr. Strong, whose indomitable energy 
 and attention to details all who knew him well must acknowledge, and 
 that hard work before the trial rather than stimulant accomplished the 
 result. 
 
76 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Mr. Strong is authority for the statement that his agents, for months 
 before the trial, traversed Green county, adroitly eliciting from different 
 individuals their views as to the degree of personal insult which would 
 justify the taking of life. The information thus obtained enabled Mr. 
 Strong to pass or excuse jurors as the interests of his client required. 
 The population of Green county at that time was less than i,6oo, so 
 that the number of qualified jurors in the county did not exceed 300. 
 
 In presenting to the supreme court the resolutions adopted at a 
 meeting of the bar of the state, held not long after the death of Judge 
 Dunn, E. G. Ryan (so soon to join his great contemporary) said: "It 
 was Judge Dunn's lot in life to fill many stations — professional and lay, 
 executive, legislative and judicial. So far as I know, or have been able 
 to learn, these sought him rather than he them. He certainly intruded 
 himself into none of them. There was a modesty in the man which was 
 rare in his generation. I think that his own estimate of his powers was 
 below, not above, the estimate of all who knew him well. And he was 
 a thoroughly earnest man. He filled all his offices with a singular fidel- 
 ity and zeal, as if each in its turn were the chief end of his life. To say 
 that he filled them with ability would be but faint praise. He did not 
 achieve success in them by just escaping failure. He was a faithful of- 
 ficer; his offices were never below him, but he was above them. None of 
 them gave opportunity of showing all he was, of calling out the strength 
 that was in him. They were all respectable, some of them high; but his 
 intellect, his culture, his general capacity towered far above any station 
 he ever occupied. We mourn for the untried powers which die out of 
 the world with the young. Let us mourn for the world when it sufifers 
 great powers to die, unused in its service, with the old. 
 
 "In his life Judge Dunn saw many men around him reach stations 
 which he did not reach. Some of them rose worthily and usefully. 
 Some rose only to show their unfitness. With like pliancy or like arti- 
 fice he, too, might have risen where his inferiors rose. But he was 
 above these, and, standing below on the solid level of his own life and 
 character, he ranked the superior of most and the equal of any of his 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN, 71 
 
 contemporaries. He might have ennobled many positions filled by 
 them — none of them could have ennobled him. 
 
 "His character was solid, strong and resolute, but not stern or harsh. 
 His stronger qualities were softened by great sense of humor and kind- 
 ness of heart. He was generous and trustful to a fault. His foibles, 
 for, hke all born of woman, he had them, all arose from his genial char- 
 acter, the warmth of his heart and the kindness of his temper. Strong 
 in character among the strongest, he was, in carriage and manner, gentle 
 among the gentlest. His culture was of a high order, in and out of his 
 profession. His knowledge of men and things, of the world and its ways, 
 was profound. There were singularly combined in him the sagacity of 
 a man of the world and the personal simplicity of a child. His sense of 
 self-respect was unerring, and never deserted, never betrayed him. It 
 is little to say that he was the soul of honor. He could be nothing that 
 is false or mean. He did not know what treason was. That which he 
 believed, that which he loved, that to which he gave his faith, were parts 
 of himself. He could not desert faith or friend or duty, without be- 
 traying his own life. Dishonor in him would have been moral suicide." 
 
 DAVID IRVIN. 
 
 Judge Irvin succeeded Judge Doty as judge of the new court created 
 by Congress as a part of the judicial system of the territory of Michigan. 
 His birthplace was in Albemarle county, Virginia, about 1794. His 
 parentage was Scotch-Irish, his father being a Presbyterian minister and 
 a teacher of the dead languages. As a practitioner in the Shenandoah 
 valley, Virginia, Mr. Irvin did not meet with marked success. In 1837 
 President Jackson appointed him as judge of the court mentioned, and 
 subsequently, on the organization of the territory of Wisconsin, ap- 
 pointed him as associate justice of the territorial supreme court. In 
 the preface to vol. i of his reports of that court Mr. Pinney (now justice 
 of the supreme court) says of Judge Irvin: "He was not considered a 
 profound lawyer, but with a strong vein of practical common sense 
 and a natural love of justice, after hearing the arguments and ex- 
 
78 -HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 amining the authorities, he was generally enabled to give correct and 
 satisfactory decisions. He had a retentive memory and was a close and 
 discriminate observer, which enabled him to accumulate a vast stock of 
 information of a practical character and of much minuteness. He had 
 a keen relish for field sports, and felt a particular interest in his horse, 
 his dog and gun. "* 
 
 "He detested all vices, and in that respect was an exemplar worthy 
 of all imitation. For his social virtues he stood high with the bench, 
 the bar and the people. The discharge of his judicial duties always 
 seemed irksome and disagreeable to him, and he passed no more of his 
 time in Wisconsin than was necessary to hold his courts, and was as 
 much a citizen of St. Louis as Madison — of Missouri or Virginia as 
 Wisconsin. He always preferred southern society, and as soon as his 
 term of office was ended he went to St. Louis, where he remained some 
 time, and subsequently went to Texas," where he made large invest- 
 ments in wild cotton lands, which brought him wealth. He continued 
 to reside there during the civil war and supported the Confederate cause. 
 His death occurred June i, 1872. 
 
 Edwin E. Bryant, in his contribution to the Green Bag (vol. 9, 
 page 27) on The Supreme Court of Wisconsin, relates these incidents of 
 Judge Irvin: Among the traditions of Green county, where he some- 
 times held the term, it is remembered that he would adjourn court at a 
 moment's notice to go shooting chickens. He used to say that "his 
 horse, Pedro, had more sense than any lawyer in his court." He was 
 in the habit of consulting Mr. Whiton before deciding a cause, to get an 
 idea of what the law was. It is recorded that in 1841 he gave the fol- 
 lowing charge to a jury: "It appears from the evidence that the plaintiff 
 and defendant in this action are brothers-in-law. On the Wabash river, 
 in Indiana, they associated themselves together for the purpose of 
 swindling their neighbors. Not content with that, they got to swindling 
 each other, and I am like the woman who saw her husband and a bear 
 fight. 'Fight husband, fight bear. I don't care which whips.' And, 
 gentlemen of the jury, it is a matter of indifiference to me how you bring 
 in your verdict." Five minutes after the jury had retired the sheriff was 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 79 
 
 instructed to see if they had agreed. Informed that they had not, he im- 
 mediately ordered in the jury and discharged it. 
 
 Another incident of him was told by Andrew E. Elmore, well known 
 in the state for half a century as the "sage of Mukwanago." In a speech 
 in the legislature, to illustrate the uncertainty of the law, he said that 
 he once had a case on trial before Judge Irvin. The case seemed very 
 clear for him, and the jury brought in a verdict in his favor for the 
 amount of the claim. Just then, as the winner of the suit sat in the bar 
 with his counsel, the judge's dog "York" became annoyingly familiar, 
 and he unluckily gave the dog a kick, which caused a yelp to reach the 
 master's ears. The judge's brow instantly grew dark and he set the 
 verdict aside. 
 
 WILLIAM C. FRAZER. 
 
 President Jackson appointed William C. Frazer, of Pennsylvania, an 
 associate justice of the supreme court of the territory on the organiza- 
 tion of the latter in 1836. But little is known of the career of Judge 
 Frazer, except that he held that office to the time of his death, which 
 occurred at Milwaukee, October 18, 1838, aged sixty-two years. It is 
 said of him in vol. i, Pinney's Reports, that "his career in Wisconsin 
 was so brief and unimportant that but little is now remembered of it 
 beyond the anecdotes found in the published collections of the Wiscon- 
 sin historical society, except that which is in a great degree traditional. 
 The only written opinion given by tiim in the discharge of his judicial 
 duties, of which there is any trace, will be found in the report of the case 
 of the United States vs. Mau-zau-mau-ne-kah (i Pin., 124), who was 
 indicted, tried and convicted before him at Green Bay for the murder of 
 Pierre Paquette, the interpreter of the Winnebago nation of Indians. 
 
 "At the time of his appointment he was considerably advanced in 
 years, and his intemperate habits rendered him unfit for the position, 
 though it is said he had been a lawyer of average learning and ability." 
 
 Strong's Territorial History* gives a more detailed account of Judge 
 Frazer's first terms of court, and that account varies a little in one par- 
 
 *Page 249. 
 
8o HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 ticular from that already quoted: "On the 22d of May (1837) Judge 
 Wilham C. Frazer held at Depere (near Green Bay) his first term of 
 court, which continued until the 30th of May. No civil cases were tried 
 in consequence of the disarrangement of the records and papers. The 
 criminal calendar, however, was generally disposed of." Mention is 
 made of the trial of the Indian before referred to, and of the fact that he 
 was defended by John S. Horner, who was appointed by the court for 
 that purpose. The cases of Amable Carbonno, for the murder of his 
 wife, and of two Indians for the murder of Ellsworth Burnett, were trans- 
 ferred to Milwaukee county for trial. Joseph Dutcher was convicted of 
 burglary and sentenced to seven years' solitary imprisonment in the 
 county jail at hard labor and a fine of one hundred dollars. John 
 O'Donnell was convicted of keeping a disorderly house and selling liquor 
 to an Indian, and was fined fifty dollars for the first ofifense and one 
 hundred for the second. Judging by newspaper comments, Judge Fraz- 
 er's first appearance on the bench in Brown county was highly credit- 
 able, and in marked contrast with the manner in which his judicial 
 functions were subsequently performed. 
 
 "Judge Frazer's first term of court at Milwaukee was held on the 
 14th of June (1837). The two Menomonee Indians, Ash-e-co-bo-ma 
 and Ash-o-wa, indicted in Brown county for the murder of Ellsworth 
 Burnett, on the bank of Rock river, in the month of November, 1835, 
 were tried. Their trials were separate. The counsel for the prosecu- 
 tion was W. N. Gardner, district , attorney, and Hans Crocker; for the 
 defense, H. N. Wells and J. E. Arnold. The jury returned a verdict of 
 guilty against Ash-e-co-bo-ma, the father, who was sentenced to be 
 hung on the first day of September. A nol pros, was entered by the dis- 
 trict attorney, by the advice of the court, in the case of the younger 
 Indian. 
 
 "Amable Carbonno, indicted for the murder of his wife in Brown 
 county, was so reduced by sickness and long confinement that he had 
 to be brought into court on a bed, in which condition he was tried. 
 The prosecution was conducted by F. Perrin and J. E. Arnold, and the 
 defense by Henry S. Baird. He was found guilty of manslaughter and 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 8l 
 
 sentenced to ten years' imprisonment in the common jail of Brown 
 count}' and to pay a fine of one thousand dollars. The sentence was 
 superseded by his death, which resulted from his disease within twenty- 
 four hours after the rendition of the verdict." 
 
 A fuller account of Judge Frazer's judicial career in Wisconsin than 
 is known to exist elsewhere is given by Joshua Stark in chapter 30, 
 vol. I, History of [Milwaukee County: Judge Frazer opened his first 
 term of the district court in Milwaukee county, June 14, 1837. He was 
 a resident of Pennsylvania at the time of his appointment, and never 
 removed to the west. Although a man of fair ability and many years' 
 experience as a lawyer, he had fallen into intemperate habits, and his 
 health, both physical and mental, had become seriously impaired by 
 excesses. He was sixty years old, and nervous, impatient, arbitrary and 
 often harsh, overbearing and ofTensive in his judicial conduct and in 
 his treatment of the members of the bar. The few lawyers who ap- 
 peared before the judge at his first term were nearly all young men, 
 but men of unusual ability and preparation for professional life. Lead- 
 ers among them were Jonathan E. Arnold, of Rhode Island, a graduate 
 of Brown university, and John H. Tweedy, of Alassachusetts, who had 
 been graduated from Yale college. Both of these gentlemen had taken 
 up their residence in Milwaukee in 1836. The first term lasted but two 
 weeks. In November, 1837, the second term was held, at which the 
 disagreeable traits and habits of Judge Frazer were so emphasized as to 
 arouse a general feehng of disgust, and to induce the bar and many 
 citizens to exert themselves to secure his removal. A committee was 
 appointed to wait upon him and request his resignation, which he re- 
 fused in offensive terms. The winter following was spent by the judge 
 at his home in Pennsylvania; but in June, 1838, he reappeared and held 
 the term. Little business was done. There was no confidence in the 
 court or in judicial proceedings as conducted by the presiding judge. 
 In September, 1838, the report became current that Judge Frazer, in a 
 card addressed to the pubhsher of a Green Bay paper, had announced 
 his intention to resign his office, to take effect October 2d, "according 
 to a determination long since made." 
 
82 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 The satisfaction felt and freely expressed by the bar and people of 
 Milwaukee at this welcome news was short-lived. For some reason 
 the judge changed his plans, and on the 14th of October, 1838, re- 
 turned to the city by steamboat from Buffalo, via Chicago, intending 
 to hold the fall term of the court. The passage had been very rough, 
 and his weak and debilitated frame could not endure the excessive 
 strain of illness and fatigue to which he was exposed. He was taken 
 on shore in a dying condition, and on the i8th of October, 1838, died. 
 
 Many stories are told of eccentric orders and judgments of Judge 
 Frazer which, if authentic, would fully justify the charge of gross un- 
 fitness for the office he held. The records of the court while he was 
 judge show no trace of these singular proceedings. On the contrary, 
 they indicate a strict regard for judicial forms and proprieties. This is 
 perhaps largely due to the fortunate circumstance that the clerk who 
 kept its records during this time — Mr. Cyrus Hawley — was a man of 
 superior intelligence and carefulness in the discharge of his duties. 
 
 A somewhat peculiar judgment entered by Judge Frazer at his first 
 term, in a criminal case, would seem to indicate special solicitude for 
 the rights of the accused. An Indian named "Ash-e-co-bo-ma" was 
 tried for murder, convicted and sentenced by the judge to be executed 
 on the 1st of September, 1837. Ash-e-co-bo-ma and another were next 
 tried for an assault with intent to kill, and both were convicted. Each 
 was sentenced to pay a fine of three hundred dollars and the costs 
 of the prosecution, "and be imprisoned by solitary imprisonment 
 in the common jail of the county of Milwaukee for the full 
 term of five years from this date;" but the judge carefully pro- 
 vided against double punishment by adding as part of the sentence, 
 "The latter sentence to go into effect in the case of Ash-e-co-bo-ma if he 
 is pardoned on the sentence previously pronounced for murder by his 
 excellency, the governor." 
 
 The first day's proceedings in Judge Frazer's court included the ad- 
 mission of Henry S. Baird, Hans Crocker, Augustus Story, ]\Iarshall 
 I\I. Strong, Nathaniel F. Hyer, William N. Gardner, John P. Hilton, 
 John H. Tweedy, Rufus Parks, Franklin Perrin, Horatio N. AVells, 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 83 
 
 Jonathan E. Arnold, John Hustis and Wihiam Campbell as attorneys. 
 The grand jury was composed of William A. Prentiss, foreman, Everson 
 P. Maynard, Allen O. T. Breed, Samuel Sanbourn, Benoni W. Finch, 
 Samuel Brown, Samuel Hinman, James H. Rogers, William B. Sheldon, 
 Pleasant Field, James Sanderson, George Bowman, John T. Haight, 
 Calvin Harmon, George S. West, Alamon Sweet, Benjamin H. Edger- 
 ton, Henry M. Hubbard, William R. Longstreet. 
 
 When the testimony on the trial of Ash-e-co-bo-ma for murder was 
 all in, Judge Frazer took out his watch and, noting time, laid it upon the 
 table, thus addressing the lawyers engaged for the prisoner: "I will give 
 you fifteen minutes each to make your arguments to the jury in this 
 case and no more." Vainly did they protest against such tyranny. Mr. 
 Arnold had hardly entered into the first of his argument when time was 
 called. He and Horatio N. Wells were each allowed ten dollars by 
 the court for defending the case. 
 
 During the course of the term the following, in addition to those 
 already mentioned, were admitted as attorneys: Erasmus D. Phillips, 
 WilHam A. Frazer, John Richards, Eliphalet Cramer, Clinton Walworth 
 and Aaron Woodman. With the latter the court had some trouble. On 
 the record on the 20th of June it was "ordered by the court that Aaron 
 Woodman take his seat, and he repHed that he would not. Ruled: 
 That he show cause for contempt of court, returnable at ten o'clock 
 to-morrow morning. Service acknowledged by said Woodman in open 
 court." 
 
 Upon calling court the next morning the first business was the 
 matter of "contempt;" and Mr. Woodman was cahed upon to answer. 
 Thereupon a member of the bar arose, and calling attention to a 
 petition held by him, asked leave to read the same, which was granted. 
 The petition was signed by "Rufus Parks, chairman," and "J. E. Arnold, 
 secretary," and read by the former. It expressed that the subscribers, 
 members of the bar of Milwaukee county, believed that the difificulty 
 arose from a misapprehension in the mind of the court, and that the 
 statement of facts, drawn up and unanimously agreed upon at a regular 
 meeting of the bar, at which all the members were present, and which 
 
84 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 were given, was, in brief, that the language which the court thought Mr. 
 Woodman had addressed to it was directed to a brother lawyer. The 
 petitioners asked that the offensive words be expunged from the 
 records, and that the rule made in consequence thereof be discharged. 
 This prayer was granted. 
 
 The ^Magazine of Western History (vol. 5, pages 820, 821, 822, 823) 
 is the source of the preceding four paragraphs. The article there pub- 
 lished contains the following concerning Judge Frazer's conduct on 
 his first arrival in Milwaukee. "The judge reached Milwaukee in June, 
 1837, on a Sunday evening, from holding court in Green Bay. He 
 put up at a small hotel then kept by a ]\Ir. Vail. He at once fell in 
 with some old friends, who invited him to a private room for the pur- 
 pose of having an innocent game of poker. There were in the party, 
 besides Frazer, an United States official connected with the land office, 
 and two or three others. They commenced playing for small sums 
 at first, but increased them as the hours passed. By the dawn of the 
 next morning small sums seemed beneath their notice. The early hours 
 were heralded to them by the ringing of the breakfast bell. The judge 
 made a great many apologies, saying, among other things, that as this 
 was his first appearance in the territory (^lilwaukee), and as his court 
 opened at ten o'clock that morning, he must have a little time to prepare 
 a charge to the grand jury. He, therefore, hoped they would excuse 
 him, which the residue of the party did, and he withdrew. 
 
 "The court met at the appointed hour, Owen Aldrich acting as sheriff 
 and Cyrus Hawley as clerk. The grand jury was called and the mem- 
 bers sworn. The judge, with much dignity, commenced his charge; 
 and seldom, perhaps, was there such a charge given from the bench. 
 After dwelling upon several laws that it was thought necessary and 
 proper to call their attention to, he alluded to the statute against 
 gambling. The English language was too barren to describe his abhor- 
 rence of that crime. He said that a gambler was unfit for earth, heaven, 
 or hell, and that 'God Almighty would even shudder at the sight of 
 
CHAPTER V. 
 
 THE FIRST STATE SUPREME COURT AND ITS 
 
 JUDGES. 
 
 The constitution provided that, for the term of five years and there- 
 after until the legislature shall otherwise provide, the judges of the sev- 
 eral circuit courts shall be judges of the supreme court, four of whom 
 shall constitute a quorum. That instrument also divided the state 
 into five judicial circuits. The first was composed of the counties of 
 Racine, Walworth, Rock and Green; the second, of the counties of Mil- 
 waukee, Waukesha, Jefferson and Dane; the third, of the counties of 
 Washington, Dodge, Columbia, Marquette, Sauk and Portage; the 
 fourth, of the counties of Brown, Manitowoc, Sheboygan, Fond du Lac, 
 Winnebago and Calumet; the fifth, of the counties of Iowa, La Fayette, 
 Grant, Crawford and St. Croix. It was further provided that for each 
 circuit there shall be a judge chosen by the qualified electors therein; 
 that one of said judges shall be designated as chief justice (of the su- 
 preme court) in such manner as the legislature shall provide. 
 
 Pursuant to the foregoing provisions the first circuit elected Ed- 
 ward V. Whiton judge; the second, Levi Hubbell; the third, Charles 
 H. Larrabee; the fourth, Alexander W. Stow; the fifth, Mortimer M. 
 Jackson. Alexander W. Stow was chosen chief justice by his asso- 
 ciates on the organization of the court. Jerome R. Brigham was ap- 
 pointed clerk and David H. Chandler reporter. The judges qualified 
 by taking the oath of office August 28, 1848. After some two and a 
 half years' service Judge Stow left the bench, and was succeeded by 
 Timothy O. Howe, whO' qualified January i, 1851, and served until 
 June I, 1853. On December 11, 1850, Wiram Knowlton, judge of the 
 recently created sixth circuit, took his seat for the first time as a mem- 
 ber of the supreme court, though he qualified as circuit judge August 
 
 6, 1850. There were no further changes in the personnel of the court, 
 6 85 
 
86 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 which went out of existence June i, 1853. Judge Stow drew the short 
 term, which expired in 1850. 
 
 The original supreme court of the state sat for the first time Jan- 
 uary 8, 1849. There were present Alexander W. Stow, chief justice, 
 M. M. Jackson, Edward V. Whiton and Charles H. Larrabee, associate 
 justices. Jerome R. Brigham is noted on the journal as present in the 
 capacity of clerk. The court was opened by proclamation of Peter W. 
 Matts, sheriff of Dane county. The first act of the court was the 
 adoption of a general rule that all attorneys of the late territorial 
 supreme court should be admitted attorneys of this court on taking the 
 official oath. All other persons entitled to admission, either as attor- 
 neys of a circuit or of another state, were to pay an admission fee to the 
 clerk of three dollars. 
 
 Those admitted as attorneys on the first day the court sat were 
 Moses M. Strong, Alexander Botkin, Parley Eaton, Alexander L. Col- 
 lins, Joseph T. Mills, Edward Elderkin, Marshall M. Strong, George W. 
 Lakin, S. S. N. Fuller, Wallace W. Graham, Amzy L. Williams, George 
 Gale, Alfred Brunson, Charles E. Jenkins, J. Gillett Knapp, Ben C. East- 
 man, Frederick S. Lovell, Charles S. Bristol, Lyman Cowdery, David 
 Agry, James M. Gillett, Jonah Bond, Henry W Tenney, Montgomery 
 M. Cothren, Robert Robinson, Sydney Sea, William R. Smith, Orsamus 
 Cole, Amos F. Culver, Andrew G. Chatfield, George B. Smith, E. 
 Webster Evans, Abram D. Smith, Samuel Crawford, Francis J. Dunn 
 and John Delany. 
 
 The first proceeding in a cause was in the case of Nicholas Flanegan 
 vs. McCoun and Ernest by way of a motion on behalf of the former, 
 by his attorneys, Eaton, Cothren, Culver and Robinson, to compel the 
 clerk of the court of La Fayette county to send up a transcript of the 
 record. 
 
 The attorneys who had business before the court on the first day of 
 its sitting were Messrs. Eaton, Cothren, Culver, Robinson, Eastman, 
 Brunson, Lakin, Mills, Lovell, Bond, A. D. Smith, Dunn, Crawford, 
 Evans, Strong. 
 
 The first record of a written opinion is in the journal of January 11, 
 
HISTORY OF ,THE BENCH AND BAR OF WISCONSIN. 87 
 
 1849, it being stated that in the case of James H. Lockwood vs. Robert 
 Rogers the opinion of the court in writing was delivered by Chief 
 Justice Stow. 
 
 A proceeding somewhat out of the usual course was had on January 
 12, 1849. In the language of the journal: "The Hon. Charles Dunn, 
 late chief justice of the supreme court of the territory of Wisconsin, 
 having taken the official oath, administered by his honor, Chief Justice 
 Stow, is admitted an attorney of this court." 
 
 The last sitting of the first supreme court of the state was on the 
 30th of December, 1852. There were present Whiton, chief justice; 
 Hubbell, Larrabee, Jackson and Knowlton, associate justices. 
 
 Following are sketches of the lives of the judges of that court: 
 
 ALEXANDER W. STOW. 
 
 The fourth judicial circuit, comprising the counties of Sheboygan, 
 Manitowoc, Brown, Winnebago, Calumet and Fond du Lac, had for its 
 first judge after the organization of the state Alexander W. Stow, of 
 whom Morgan L. Martin, his lifelong and honored friend, wrote as 
 follows: "Alexander W. Stow was born at Lowville, N. Y.,* 5th of 
 February, 1805. His father, Silas Stow, was a prominent federalist in 
 the early political struggles of that state, was chief justice of the county 
 court, which made him the associate of the supreme judge at nisi 
 prius, and for one term represented the district in Congress. He was 
 a man of superior ability and culture and possessed a fund of general 
 knowledge which placed him in the front rank of the public men of his 
 day. The son inherited much of the talent of the father. 
 Judge Stow was never a close student, but under the tutelage of 
 his father and the eminent men with whom he was brought into asso- 
 ciation in early life he became, almost by tuition, an accomplished 
 scholar. 
 
 "At the age of sixteen, he was placed at the military academy, where 
 
 *Reed's Bench and Bar gives Middletown, Connecticut, as the place of Stew's 
 birth, and the time as 1804. Page 50. 
 
88 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 he remained only a single year,* and returned to enter his law office 
 in his native village. In due time he Avas admitted to practice, and 
 formed a partnership with Hon. Justin Butterfield, late commissioner 
 of the general land office, then residing at Sacketts Harbor. That the 
 superior ability of young Stow was fully appreciated by him may be in- 
 ferred from a remark of his in 1826, that he 'had never known a man of 
 superior constitutional powers.' A few years of routine practice, dur- 
 ing a short respite from which he spent a few months in European 
 travel, bring him to the time of his election as chief justice of our state. 
 
 "His eccentricities were many and peculiar. There were some by 
 which his general character was judged of harshly and unfavorably by 
 those little acquainted with him; there were many which should go far 
 to redeem it from reproach. He was peculiarly jealous of the independ- 
 ence of the judiciary, and would only accept a position on the bench 
 under a pledge not to serve a second term. It must be unincumbered 
 by obligations of any character save such as appropriately attached to 
 the office to maintain its dignity and to preserve its purity. If any 
 attempt was made, by solicitation or otherwise, to influence him in the 
 discharge of its duties, the act was indignantly rebuked or summarily 
 punished. He was particularly cautious to avoid any influence of 
 favoritism on the one hand, and equally so that his rulings upon the 
 bench should be free from a taint of prejudice on the other. 
 
 "As presiding officer of the supreme court, his highest eulogium may 
 be found in the opinions he pronounced during his short official term. 
 They exhibit great comprehensiveness of thought; are terse, excisive 
 and pungent in diction, and furnish models of judicial composition. 
 The common law is well defined as the common sense of mankind, and 
 
 *Mr. Reed says that but little can be learned of Stow's early life, excepting that 
 he was a college graduate, after which he traveled extensively in Europe; that he 
 studied law, and after his admission to the bar practiced the profession at Rochester, 
 New York. In 184S he came to Wisconsin and settled at Fond du Lac, near which 
 city he purchased a farm, but did not become a farmer. His time was divided 
 between Fond du Lac and Milwaukee, at which latter city he had a law office, but not 
 much business. He was never married, and died in Milwaukee, September 14, 1854. 
 There is some difference of opinion as to whether Mr. Stow was married or not; the 
 more charitable view is that he was united by a common law marriage to an Indian. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 89 
 
 he imitated the virtues of the most eminent jurists by making" it the 
 broad foundation upon which his decisions were uniformly based." 
 
 The late Chief Justice Ryan held a more favorable view of Judge 
 Stow's ability than did Mr. Martin. He says that he did not know him 
 before they met in Wisconsin. From thence till the judge's death, the 
 writer is proud to say that they were intimate and fast friends. Know- 
 ing the judge, then, in the prime of his professional hfe, the writer finds 
 it diiificult to believe that the late chief justice had not been at some 
 time a close and extensive student. His acquaintance with books, in 
 and out of the line of professional reading, was varied and extensive. 
 He might have been called almost a scholar in general literature, and 
 he most surely was one in professional learning. He was one of the 
 best, if not the very best, common lawyer whom the writer has ever 
 met. He was not one of those to whom the common law was a frag"- 
 mentary confusion of disjointed rules. He had mastered not only its 
 details, but the history out of which it grew. And his vigorous and 
 broad mind grasped it as a system in its full spirit and comprehended 
 the mutual relations and symmetry of all its parts. He well understood 
 that it is not a mere system of .municipal law, but that it is, with all its 
 blemishes, the noblest code of personal rights which the world has ever 
 known; which educates men in free and self-reliant manhood, and 
 which has done more than all written systems or constitutions for the 
 freedom of the nations who are blessed in its possession. Judge Stow 
 was certainly an accomplished common lawyer. 
 
 In the learning of modern decisions, the multitudinous reports of the 
 last quarter of a century or more, which perplex too many of us with 
 bewildering variety of rule. Judge Stow could not be said to be a 
 scholar. He was not a case lawyer; but he was a better lawyer than 
 mere case learning can make. The fundamental principles which under- 
 lie all sound judicial decisions were familiar to him, and mainly guided 
 his judgments. The common law was his judicial creed. And there 
 is a soundness of judgment, a strength of sense, a massiveness of reason- 
 ing, and a manliness of language in his opinions, which are not attained 
 in the study of modern reports; which none of his successors have ex- 
 
90 HISTORY OF THE BENCH AND BAR ^OF WISCONSIN. 
 
 celled, if, indeed, any of them have equaled. He held the scales of 
 justice with a strong but nice hand. His opinions are very generally 
 sound in matter and really admirable in manner. He ov^red this partly 
 to his common lavif, partly to the strength of his character, and the 
 energy, accuracy and justice of his intellect. 
 
 For his character was singularly solid and firm, and his faculties 
 were of high order. There were indeed occasional eccentricities in his 
 thinking as well as in his acting. Making some allowance for these, 
 he was surely a great man intellectually. The writer doubts if he ever 
 knew an abler. His views were always vigorous, often profound, and 
 generally discriminating and just. He was indeed a man of strong 
 prejudices, but these rarely, if ever, influenced him on the bench; never 
 consciously. He loved truth for truth's sake, with intense love. He 
 loved justice for itself, with natural and professional devotion. Many 
 disliked the man, but none ever doubted the judge. He reverenced the 
 judicial office; and while he held it, he made all men respect it. He 
 had a high sense of judicial dignity and authority; and there was no 
 trifling with the court in which he presided. On the bench he looked 
 what he was, a great judge. 
 
 He was strongly opposed, on principle, to elective judiciary. He 
 believed that the system had a tendency to make judges representa- 
 tives of the popular will. He feared that it had a tendency to make 
 judges court favor on the bench. This led him, when solicited to be a 
 candidate at the first judicial election, to declare that, if elected once, he 
 would not sufifer himself to be re-elected. He chose to place the judicial 
 office in his keeping above suspicion. The system was then untried; and 
 he failed to give due consideration to the self-respect and professional 
 pride which raise all fit for office above the mean ambition of keeping 
 it by sinking into unfitness for it. He would have been re-elected after 
 his brief term, but for his own truth to his own promise to himself. 
 That honorable but mistaken pledge cost the state a great judge; how 
 great his short judicial service can only indicate. He is now com- 
 paratively unknown and unappreciated. A longer judicial career would 
 undoubtedly have placed him in the front rank of American judges. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. QI 
 
 With all our boast of the present, judicial eminence is not what it was. 
 And thoughts of him and of those who preceded and followed him in 
 his place in this court, and who honored it as he did, Dunn, Whiton 
 and Dixon, make the present writer feel of himself, 
 
 Attali, 
 Ignotus haeres, regiam occupavi. 
 
 Judge Stow left the bench after some two and a half years' service; 
 and lived in private some five or six years, never again resuming his 
 profession. He died with the deep respect of the profession throughout 
 the state. 
 
 He was not a man of many attachments; but all his affections were 
 faithful and lasting. Those only who knew him well, kneiv that beneath 
 an outside rarely gentle and often harsh, he had a generous and noble 
 nature, and led a life of genuine kindness and consideration for all whom 
 he honored with his intimacy. He was perhaps deficient in some of the 
 gentler qualities of our nature. But none of his peculiarities arose from 
 mean or false qualities. There was nothing small in his nature. All his 
 eccentricities were excesses of strength. A high integrity pervaded 
 his whole character. He bore to his grave the profound regard of all 
 who were happy- enough to know him as he really was. And the pres- 
 ent writer gives feeble expression to his sense of Judge Stow's excel- 
 lence by this crude and hasty reminiscence of a good man and just 
 judge. 
 
 Mr. Bryant has collected some anecdotes of Judge Stow which were 
 published in his contribution to the Green Bag, heretofore referred to. 
 The judge was long remembered in Madison, where he presided as 
 chief justice, by his tastes, so strange to the western people. He had 
 acquired in foreign travel the taste for game well "ripened." It was 
 told with disgust that the chief justice required his prairie chickens to 
 hang out of his bedroom window till the legs and bills were green, 
 and the feathers rubbed off by a stroke of the hand, and the odor told of 
 decay before he would allow them to be cooked. He was a proud man 
 and stood upon his dignity. It is told that he had a client, one Captain 
 
92 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 B., who had been an officer m the British service, and being a man of 
 wealth, had settled in Wisconsin. He was a little peremptory in his 
 bearing, yet he and Stow were warm friends, and the latter was his 
 trusted counsel. One day Captain B. rode up to the door of Stow's 
 office and, not wishing to dismount, which was something of a task to a 
 man of his bulk and years, he called to Stow through the open door: 
 "Judge Stow, come out here a moment." The lawyer, offended by the 
 brusqueness of manner and dominating air, which had often nettled him 
 
 before, sung out, "See you d d first; if you want to see me, come in 
 
 here." A general substitution of attorney followed this episode. 
 
 Another anecdote is told of this jurist. One of his cases decided at 
 the circuit had been reversed by the supreme court, of which he was 
 chief justice. The remittitur confronted him at the circuit, and he was 
 reminded that his decision was reversed. "Then," said he, "I have only 
 one other decision to make, and that is, that the supreme court are con- 
 summate blockheads." 
 
 EDWARD V. WHITON. 
 
 Edward Vernon Whiton, distinguished as legislator, constitution 
 framer and jurist, was born June 2, 1805, at South Lee, Berkshire 
 county, Massachusetts. He descended from James Whiton, who came 
 from Hingham England, in 1640, and settled at Hingham, Massachu- 
 setts, and whose second son, Joseph, removed to Ashford, Connecti- 
 cut, in 1730. Edward was the son of Joseph Whiton, who descended 
 from this line, and was born at Middleton. He served under General 
 Gates in the revolutionary war, and settled at South Lee soon after its 
 close. In the war of 1812 he was major-general of one of the divisions 
 called into service to defend Massachusetts from threatened invasion in 
 1814, and commanded the defenses at Boston. On the restoration of 
 peace he returned to South Lee, and represented the town of Lee nine 
 years in the general court of the commonwealth. He had three sons, 
 all of whom became judges: Joseph Lucas, who settled in Lorraine 
 county, Ohio, and was there the founder of a distinguished family; 
 Daniel Garfield, who resided awhile in Ohio, and then came to Wis- 
 
^^^-^^^Zj^. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 93 
 
 cousin, where he died, and Edward Vernon, the subject of this sketch. 
 The latter resided in his native town until he was about thirty years of 
 age, "read law" there and served as librarian of the town library. It 
 is supposed that he here acquired a considerable part of that accurate 
 historical knowledge that he afterwards made such good use of. 
 
 In 1835 Mr. Whiton left his native town for the west; he remained 
 in Lorraine county, Ohio, until 1837, when he came to Wisconsin and 
 settled on a tract of prairie land near the present site of Janesville. In 
 his youth he had learned the trade of millwright and carpenter, and it 
 was an easy matter for him to build his own cabin, and afterwards the 
 more pretentious house in which he lived and died. For several years 
 after he became a resident of the territory Mr. Whiton lived alone, his 
 marriage having occurred in 1847. 
 
 In 1838 he was elected a member of the territorial house of repre- 
 sentatives, though he was, politically, a whig and the prevailing senti- 
 ment of his district (Rock and Walworth counties) was democratic. 
 He served during the sessions of 1838, 1839 and 1839-40, and during the 
 last was speaker. He also served as a member of the committee which 
 prepared the statutes of 1839, and superintended the printing thereof. 
 He was twice re-elected to the house, and served during the sessions of 
 3840-41, 1841-42. In 1842-43, 1843-44, 1845 ^^d 1846 he was a mem- 
 ber of the council. In 1847 he was elected a member of the second 
 constitutional convention, and served in that body as a member of the 
 judiciary committee. 
 
 In 1848 he was elected judge of the first circuit, composed of the 
 counties of Racine, Rock, Walworth and Green. As circuit judge he 
 became a member of the first supreme court of the state, and served in 
 both capacities until the separate supreme court was organized in 1853, 
 when he was chosen its first chief justice. He was re-elected in 1857 and 
 served until his last sickness, which terminated in his death on the 12th 
 of April, 1859. 
 
 All who knew Mr. Whiton concur in giving him the highest praise 
 as a man and an officer; in lauding his character and paying respect to 
 his ability and attainments. He seems to have been a remarkable man. 
 
94 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 else he could not have commanded from his associates such tributes as 
 were paid him. 
 
 Jonathan E. Arnold, who served with Mr. Whiton as a member of 
 the legislature of 1840-41, said of him: "Were I to name any one 
 sphere of action in his life in which he was most eminently distinguished, 
 and for which he had a peculiar adaptation, I should say that it was as a 
 legislator. His varied information, strict integrity, eminent conser- 
 vatism and finely balanced mind all combined to make him a ready de- 
 bater and a high minded and patriotic legislator. But it is useless to 
 name any one sphere when he has filled so ably all the positions which he 
 has ever occupied." One who observed his career in the constitutional 
 convention says that it was "strikingly marked by every characteristic of 
 true greatness. He was profoundly educated, not only in law, but in the 
 minutest details of the history of his country. Possessing a memory of 
 unfailing tenacity, the vast stores of learning he had accumulated were 
 ever at instant command, arranged in logical order, available to illus- 
 trate any mo'oted point, either in law or political science." 
 
 Judge Whiton possessed, as a judge, the unbounded confidence of 
 all classes of people. During his service on the bench of the supreme 
 court the case between Bashford and Barstow, involving the right to the 
 ofifice of governor, was determined. The court was then composed of 
 Whiton, Smith and Cole, all republicans. All the material questions 
 raised in favor of Barstow, who was elected as a democrat, held the 
 certificate of election, and was, at the commencement of the proceeding, 
 in possession of the ofifice, were ruled against him. He and his support- 
 ers expressed the opinion that the court so ruled on partisan grounds. 
 Public feeling ran high. Men went about the capitol, and even into 
 the court room, armed; arms were stored in the capitol. The state- 
 ment has recently been publicly made by Judge Cole 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. The sober second thought of the 
 strongest partisans led to the conviction that Whiton -could not, by any 
 possibility, be a party to a judgment rendered on partisan grounds for 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 95 
 
 partisan ends. Though defeat was bitter, confidence in the integrity of 
 the court, based largely on the estimate entertained of Judge Whiton's 
 character, caused its judgment to be accepted. 
 
 The written opinions of Judge Whiton are reported in vol. 3 of 
 Finney's Reports and vols. 1-8 Wisconsin. These, it has recently been 
 said by Judge Cole, do not fairly represent his powers; he was much 
 stronger in the consuhation room than with his pen. Some of his dis- 
 cussions with his judicial associates in the privacy of that room are said 
 to have been very remarkable for their learning and to have disclosed 
 him as a man of extensive powers. It is a cause of profound regret to 
 the editor that Judge Cole's health has not permitted him to carry out 
 his purpose to prepare for this work a sketch of Judge Whiton's life 
 and an estimate of his character. It is enough to give Judge Whiton 
 a high place in the regard of the bar of this generation, at least, to know 
 that that distinguished man holds him in high esteem for his judicial 
 qualities, his learning and private character. 
 
 In his sketch on "The Supreme Court of Wisconsin" in the Green 
 Bag, Edwin E. Bryant relates the following anecdotes of Judge Whiton. 
 It is said that his feet were remarkable for their symmetry and smallness; 
 that while he was not handsome in the face, a sad, far-away expression 
 added 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 after 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 neighbor 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 company a still, ret- 
 icent man, apparently absorbed in his own reflections. Once, while 
 dining at a hotel, those sitting beside him began to expatiate upon peat, 
 large beds of which are found in the four-lake country. Some one asked 
 
96 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 W'hiton, "Judge, what do you think of peat?" "Pete! Pete!" remarked 
 the judge, as if startled from a reverie, "really I don't know him." 
 
 LEVI HUBBELL. 
 
 This gentleman was born at Ballston, New York, April 15, 1808. 
 He finished his general education at Union college, from whence he 
 was graduated in 1827. He had a brother who was a lawyer, and pre- 
 sumably obtained his preliminary legal education under his direction. 
 His first practice was with his brother at Canandaigua, Xew York. 
 Whether he abandoned the profession for a time is uncertain, but he at 
 least permitted his attention to be divided so far as to become the editor 
 of a newspaper known as the "Ontario ^lessenger." From 1833 to 
 1836 he was adjutant-general of his native state, having been originally 
 appointed by Governor Marcy. In the latter year he became a resident 
 of Ithaca, and represented Tompkins county in the popular branch of 
 the legislature in 1841. In 1844 he settled in [Milwaukee, and became a 
 member of the firm of Finch & Lynde. In 1848 he was a delegate to 
 the national democratic convention, and supported General Cass as a 
 candidate for President. In the same year he was elected judge of the 
 second circuit, which then comprised the counties of ^Milwaukee, A\'^au- 
 kesha, Jefiferson and Dane, and at the expiration of his term was re- 
 elected. By virtue of his circuit judgeship he became one of the justices 
 of the supreme court and so remained until the change in the organi- 
 zation of that body in 1853. In 1850 the justices chose him as chief 
 justice, to succeed Stow, and he served as such until January 3, I852. 
 In 1856 Judge Hubbell resigned his judicial office and resumed the prac- 
 tice of the law in ^Milwaukee. In 1863 he was elected to the assemblv 
 as a republican from a ^Milwaukee district and served in the session of 
 1864. In 1 87 1 he was appointed United States attorney for the eastern 
 district of Wisconsin and served in that capacity until 1875, when he 
 resumed the practice of law. He died in ^Milwaukee in 1876, having a 
 short time before his death fallen on an icy pavement and broken his leg. 
 It is said in vol. 3, Pinney's Reports, that "for a period of nearlv 
 thirty-five years, during which Judge Hubbell has resided in Wiscon- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 97 
 
 sin, he has been one of its most prominent citizens and one of the ablest 
 members of the bar. Judge Hubbell is a ready, eloquent and impressive 
 speaker, and both at the bar and on the bench he has displayed great 
 learning and ability, with marked industry and promptness in the dis- 
 charge of duty, and his intercourse with those with whom he was 
 brought in contact, whether officially, professionally or socially, has 
 ever been characterized by a courteous, kindly and graceful demeanor, 
 which has secured for him their confidence and respect." 
 
 In his article on the supreme court of Wisconsin* Edwin E. Bryant 
 gives the following account of the attempt to impeach Judge Hubbell: 
 "His career as a judge was stormy. He was a man who made enemies, 
 and an attempted impeachment in 1853 furnished the only trial that has 
 ever taken pace in Wisconsin before the senate as the high court of 
 impeachment. He was a prominent democrat, and his party was then in 
 power. He was ambitious, agreeable in manners, and felt and evinced a 
 consciousness of leadership. He gave offense to a prominent jury- 
 mant in a case tried before him, it is told. The jury brought in a verdict 
 of not guilty. The judge, greatly surprised at the verdict, made the 
 remark, 'Gentlemen, may the Lord have mercy on your consciences.' 
 One insulted juryman then vowed vengeance. Pursuing the track of 
 rumor, he gathered in time a formidable array of material for articles and 
 specifications, which, in the early days of the next session, were formu- 
 lated upon his complaint in the assembly. The charges, contained in ten 
 articles, each with numerous specifications, ran the whole gamut of 
 official misconduct. The trial began March 23, 1853, and after issue was 
 joined the case was set for trial June 6th, from which date until July 
 nth, the trial continued. The court of impeachment acquitted him by 
 an overwhelming vote on all the numerous specifications, and the 
 result was a triumphant vindication. Among those who voted for his 
 acquittal were many whose reputation for probity, legal learning and 
 judicial fairness added weight to his acquittal. The evidence, given its 
 worst construction, showed only some indiscretions, which he freely ad- 
 
 *Vol, 9, The Green Bag. 
 
 tWilliam K. Wilson, of Milwaukee. 
 
98 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 mitted, in allowing some casual interviews with suitors, which in no 
 wise influenced his adjudication. 
 
 "Judge Hubbell had the sympathies of a large portion of the people 
 of the state, especially the people of Milwaukee, during the trial, and his 
 acquittal gave his friends opportunity to manifest their joy at the result. 
 A special train loaded with a committee went out part \\"ay to meet him; 
 and on his return to Milwaukee a large throng met him and marched in 
 a triumphant procession through the streets, the hke of which that city 
 had never seen. A public reception, then a monster procession to ac- 
 company him to his home, made the day one of congratulation and 
 holiday parade." 
 
 JMORTIMER M. JACKSON. 
 
 The birthplace of Judge Mortimer M. Jackson was Rensselaerville, 
 Albany county, New York. He attended the schools there and at 
 Flushing, Long Island, and a collegiate institution in the city of New 
 York, remaining at the latter several years. In the early portion of 
 his life he was employed by a mercantile firm in that city, and was an 
 active member and prominent ofificer of the Mercantile Library Associa- 
 tion. He studied law in the office of an eminent lawyer and advocate, 
 David Graham, Esq., and was admitted to the bar. As early as 1834 
 he took an active interest in politics as a member of the whig party, and 
 upon the organization of the republican party became a conspicuous 
 member of it, and acted with it so long as he lived. In 1857 Judge Jack- 
 son was a candidate for the United States senate, but was defeated by 
 James R. Doolittle. 
 
 Mr. Jackson arrived in Wisconsin in 1838; he remained a short time 
 in ^Milwaukee, but settled at ^Mineral Point, Iowa county, soon there- 
 after. The country at and about ^Mineral Point, at the time he settled 
 there, was the field of extensive lead mining operations, which occa- 
 sioned much spirited and important litigation, and Judge Jackson soon 
 acquired an extended practice and prominence at the bar. He was a 
 graceful and interesting public speaker, and an active participant in the 
 proceedings of the political conventions of his party. On the 26th day 
 
,./^^ 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 99 
 
 of June, 1841, he was appointed attorney general of Wisconsin territory 
 in place of H. N. Wells, and held the office until January 22, 1846. 
 During that period he conducted many cases of public interest and of 
 great importance in a highly satisfactory and successful manner. Upon 
 the organization of the state government, in consequence of his con- 
 spicuous position at the bar, extensive acquaintance, and his high posi- 
 tion as a citizen of his part of the state, he was elected the first circuit 
 judge for the fifth judicial circuit, then consisting of the counties of 
 Iowa, La Fayette, Grant, Crawford, and St. Croix (the county of Rich- 
 land being then attached to Iowa county, the county of Chippewa to 
 the county of Crawford, and the county of La Pointe to the county of 
 St. Croix, for judicial purposes), embracing in territorial extent more 
 than one-third of the state, and in which there was a great amount of 
 judicial business to be transacted, making the position an extremely 
 laborious one, particularly in consequence of the long journeys he was 
 required to take through the sparsely settled wilds of a new country, 
 by the most primitive methods of travel, in order tO' reach the points 
 where he had to hold court. As circuit judge he was ex-officio one of 
 the judges of the supreme court under its first organization, and upon 
 the expiration of the term of Judge Hubbell as chief justice he was 
 chosen by the judges of that court to fill his place, but declined in favor 
 of Judge Whiton, who was thereupon chosen. He continued to be a 
 circuit judge and one of the judges of the supreme court until the or- 
 ganization of the separate supreme court in June, 1853, when he re- 
 turned to the practice of his profession; but in consequence of ill health 
 and physical infirmity he was unable to prosecute his professional duties 
 with much vigor or continuity. He discharged the duties of his judicial 
 position with great fidelity and in the most honorable and satisfactory 
 manner. He was dignified, courteous, faithful and impartial. The 
 purity and integrity of his character were beyond question or sus- 
 picion of wrong. 
 
 In 1858 he became a resident of the city of Madison, and in 1861 he 
 was appointed to the office of the United States consul at Halifax, and 
 held that responsible and important position in the diplomatic service of 
 
lOO HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the country during the trying and eventful period of the recent civil 
 war, in which his duties were of the most delicate and responsible char- 
 acter. He met the requirements of this new position in his accustomed 
 graceful, dignified and able manner, and was exceedingly popular in 
 this new field of official service, in which he continued the tried and 
 trusted servant of the United States as such consul and as consul-general 
 of the United States for the British maritime provinces, (to which latter 
 position he was promoted in 1880), until 1882, a period of about twenty- 
 one years, when he returned to Madison, where he lived until the time 
 of his death, which occurred October 13, 1889, at the age of seventy- 
 seven years. He had lived a long, useful and blameless life. 
 
 By his last will and testament he endowed a chair of instruction in 
 the law school of the Wisconsin university, now known as the Jackson 
 professorship, devoting of his estate the sum of $20,000 for that pur- 
 pose; thus in the most graceful and efficient manner linking more com- 
 pletely his memory as a lawyer and judge with the professional and ju- 
 dicial history of the state. 
 
 In all his social, personal and official relations Judge Jackson was 
 eminently a polite, courtly, dignified gentleman of the old school, treat- 
 ing at all times his associates and acquaintances with the kindest and 
 most respectful consideration. No one possessed in a more eminent 
 degree the respect and kindly wishes of the people than he, and it is 
 safe to say that at the time of his death he had not one enemy in the 
 world. 
 
 Judge J. H. Carpenter said of his friend that "Judge Jackson was a 
 man of remarkable purity of character. In all my intercourse with him, 
 which was almost daily for the last eight years of his life, I never heard 
 from his lips an expression unbecoming to a gentleman, or unfit to be 
 uttered in the presence of refined ladies. His sense of right was very 
 acute. His desire to do right and to deal justly with all was very 
 marked. He would often do more than was required that he might be 
 sure that he had satisfied the full demands of justice and right and fair 
 dealing. He cherished no animosity; seemed to be pleased to hear of 
 the prosperity of men with whom he had not been on friendly terms. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. loi 
 
 He buried completely every feeling of ill will. He lived, for the last few 
 years of his life that I knew him intimately, the life of a pure, honorable 
 Christian gentleman. He sought to do this and he sought his inspiration 
 from the Book of Books. He believed in the divine guidance and he 
 sought it in humble prayer. He was a good man and a just one. He 
 was proud of his adopted state, and wished to honor it as it had honored 
 him. He wished to do good while he lived, and was desirous that what 
 he left should do good after him." 
 
 &^ 
 
 CHARLES H. LARRABEE. 
 
 Judge Larrabee was born at Rome, Oneida county. New York, 
 November 9, 1820. His father was IMajor Charles Larrabee of the 
 United States infantry, who was stationed at Fort Howard at the time 
 of his son's birth. The latter received an academic education at Gran- 
 ville and Springfield in Ohio. He read law with General Samson Mason 
 at Springfield, and was admitted to the bar in September, 1841. He 
 resided in Cincinnati for a time, and, presumably, practiced his pro- 
 fession there. In 1846 he was city attorney of Chicago, and in that 
 year married Minerva Norton. In 1847 he removed to Dodge county, 
 Wisconsin, and in the same year was elected a member of the second 
 constitutional convention. He served in that body upon the committee 
 on general provisions, comprising preamble, boundaries and admission 
 of the state, suffrage and elective franchise, internal improvements, 
 taxation, finance and public debt, militia, eminent domain and property 
 belonging to the state, and the bill of rights. Throughout the conven- 
 tion he took a leading and prominent part in its deliberations. In 1848 
 he was elected judge of the third circuit, comprising the counties of 
 Washington, Dodge, Columbia, Marquette, Sauk and Portage, as then 
 organized, and re-elected at the expiration of his term, and consequently 
 was a justice of the supreme court until that body was reorganized in 
 1853. In 1852 he was the democratic candidate for chief justice of the 
 supreme court, provision for the separate organization of which had 
 been made; his competitor was Edward V. Whiton, who was successful. 
 7 
 
102 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Judge Larrabee is quoted as saying in a note:* "To become a candi- 
 date for Congress I resigned my seat on the bench at the urgent solicita- 
 tion of Mr. Douglas, who wanted to show his anti-Lecomptian strength 
 in the northwest, in view of the Charleston convention of i860. I over- 
 came 2,500 republican majority in the district and was elected by 1,200 
 majority, but was swept under with Douglas in i860." The election 
 referred to was to the thirty-sixth Congress. Judge A. Scott Sloan de- 
 feated Judge Larrabee for re-election to the thirty-seventh Congress. 
 The latter enlisted as a private in the first Wisconsin regiment, became 
 major in the fifth and colonel of the twenty-fourth, serving on the penin- 
 sula under Gen. McClellan and -in Tennessee under Rosecrans. In 1864 
 Judge Larrabee went to the Pacific coast for the benefit of his health, 
 which was restored, and remained there until his death. In 1878 he 
 was elected a member of the convention to frame a constitution for the 
 then anticipated state of Washington. After changing his place of resi- 
 dence a number of times he settled in Southern California. "The public 
 career of Mr. Larrabee, both in Wisconsin and elsewhere, has ever been 
 in the highest degree honorable and useful. He has proved himself a 
 gifted statesman, an able and popular judge, and his military record 
 was in ah senses patriotic and noble."! Another writer has said of him: 
 "As a judge, he was prompt and impartial, and his written opinions bear 
 favorable testimony to his learning and ability; he possesses more than 
 ordinary natural ability; is an impressive public speaker; his manners 
 are free, afifable and popular, and is zealous as a partisan and warm and 
 devoted in his friendships."! Judge Larrabee's published opinions are 
 reported in vols. 2 and 3, Pinney's Reports. His war record is thus 
 sketched by the gifted pen of General Edwin E. Bryant: "When Sum- 
 ter was fired on he oi¥ered his services to Governor Randall. On the 
 17th of April (1861), he entered in the Horicon company, the speedy en- 
 rollment of which he hastened; but before that regiment had mustered 
 he was selected for the place of major in the fifth Wisconsin. In this 
 regiment he served with distinction in the army of the Potomac in the 
 
 *Reed's Bench and Bar; presumably the note was addressed to Mr. Reed. 
 tFathers of Wisconsin, p. 238. 
 tPinney's Reports, p. 618. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN 103 
 
 Peninsula campaign. He served in General Winfield Scott Hancock's 
 command, who wrote to the secretary of war commending- him highly 
 as one 'eminently fitted to command troops,' and recommended him for 
 a brigadier general. He particularly distinguished himself on several 
 occasions, especially at Lewinsville, Lee's Mills, and at the battle of 
 Williamsburg. In the arduous campaign up the Peninsula the major's 
 constitution was much broken. On the 25th of July he was com- 
 missioned colonel of the twenty-fourth Wisconsin. He came home 
 and recruited for that regiment in his old district — a portion of the state 
 where was much opposition to the war — and brought in men enough, it 
 was said, for four regiments. He enlisted, as stump speakers to plead 
 for enlistments, old democratic wheel-horses, like Matt. H. Carpenter, 
 Henry L. Palmer and Edward G. Ryan. He served with that regiment 
 for one year, participating in the battles of Perryville and Chaplin Hills 
 with great credit to himself and command. But his health was so shat- 
 tered by service in the Chickahominy swamps that he was compelled to 
 resign. He left the service with high commendations from General 
 Rosecrans, General Philip H. Sheridan and other commanders under 
 whom he served." 
 
 Judge Larrabee came to his death January 20, 1883, being one of 
 sixteen persons killed or burned to death by the plunging of a train 
 down an embankment after it had run about four miles down a steep 
 grade. He was returning to his home from a visit to San Francisco at 
 the time. 
 
 WIRAM KNOWLTON. 
 
 Wiram Knowlton was born in Chenango county. New York, January 
 24, 1816. He became a resident of Wisconsin in 1837, his father's 
 family locating at Janesville, and read law with Parley Eaton, of Mineral 
 Point. His first practice was at Platteville, Grant county, whence he 
 removed to Prairie du Chien. While there he became captain of a com- 
 pany he raised for service in the Mexican war, but which was assigned to 
 duty at Fort Winnebago. In 1850 the legislature created the sixth 
 judicial circuit out of the then counties of Crawford, Bad Axe, St. Croix 
 
I04 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 and La Pointe. The election for circuit judge was held on the first 
 Monday of July, and Mr. Knowlton was chosen. He served the full 
 term of six years, and until the separate organization of the supreme 
 court in 1853 was a member of that tribunal. His opinions are reported 
 in vol. 3, Pinney, and are indicative of at least average ability. One of 
 the most important of them is that in Oshoga vs. State, p. 56, in which 
 it was ruled that a grand jury might lawfully be summoned at an extra 
 jury term of the court appointed under the statute. The validity of an 
 indictment found by a grand jury impaneled at such a term was ques- 
 tioned by Messrs. Cole and Biddlecome. The order appointing the 
 term and directing the venire for a grand jury was made by Judge 
 Knowlton, whose vote in the supreme court was necessary to the 
 afifirmance of the judgment, Judges Larrabee and Whiton holding that 
 the court had no power to direct the summoning of a grand jury at an 
 extra jury term. The propriety of Judge Knowlton's sitting in that 
 case appears not to have been questioned, but inasmuch as the defend- 
 ant had been convicted of murder, it may be doubted whether it would 
 not have been more in accordance with the fitness of things if he had not 
 done so. 
 
 Judge Knowlton died at the age of forty-seven, on June 27, 1863, at 
 Menekaune, Oconto county, Wisconsin. There seems to be little 
 known of him from 1856 to that time, except that he practiced law for a 
 short period at Prairie du Chien. It is said of him in the sketch of his 
 life in vol. 3, Pinney's Reports, that "he was a man of good natural 
 talents and discharged the duties of his office with commendable ability; 
 and his judicial integrity was unquestioned." Moses M. Strong has 
 said, in his biographical sketches of deceased members of the bar, that 
 "Judge Knowlton was not a great lawyer, but a good man, and of un- 
 swerving integrity and a large share of common sense, and as a judge 
 was very acceptable to those men interested in the discharge of his 
 duties. He was afflicted with the unfortunate habit of the intemperate 
 use of intoxicating drinks, but had the faculty of discriminating between 
 those which were adulterated and the pure. In a suit before him in 
 St. Croix county to recover for a bill of adulterated liquors he charged 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 105 
 
 the jury that 'pure hquor was a wholesome beverage, promotive of 
 longevity,' but that no man could ever recover judgment in his court 
 for the sale of adulterated and poisonous liquors." 
 
 TIMOTHY OTIS HOWE. 
 
 The basis of the enviable fame connected with the name and memory 
 of Timothy O. Howe is political rather than judicial. For long years he 
 stood the idol of his party in Wisconsin and the object of the respect 
 of all the people of the state. Indeed, his fame was national. His ability 
 as a lawyer and judge has been obscured by the lasting success won by 
 him in the political world. 
 
 Mr. Howe was born in Livermore, Maine, February 24, 1816. His 
 father practiced medicine in a rural district. Besides such advantages 
 as the common schools afforded, he spent some time at a grammar 
 school; at eighteen attended the Maine Wesleyan seminary, and at 
 twenty was prepared for college. His hope for a collegiate education 
 was not realized. Instead of going to college he began to read law, and 
 at the age of twenty-three located at Readfield, Vermont, for the 
 purpose of practicing his profession. Among those then there and 
 ■practicing law was Lot. M. Morrill, afterward Mr. Howe's compeer in 
 the senate. Presumably his experience as a young lawyer was much the 
 same as that of those who enter the profession in these days. In 1842 
 he was an unsuccessful candidate for the nomination for the office of 
 clerk of the court of the county of his residence, and in 1843, though 
 nominated for that office, was unsuccessful. In 1845 he was elected a 
 member of the popular branch of the legislature as a whig. It is said 
 that he there "took a prominent part as a debater beside the late William 
 Pitt Fessenden, the recognized leader of the house." 
 
 In 1845 he came to Wisconsin, settling at Green Bay, where he 
 opened a law office, and ever after resided. In 1848 he was the whig 
 candidate for Congress, but failed of election. In 1850 he was elected 
 judge of the fourth circuit, and in January, 185 1, took his seat as a 
 justice of the supreme court, and acted in that capacity until 1853. He 
 resigned his seat on the circuit bench in 1855, and resumed the practice 
 
I06 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 of the law which he continued till 1861, when he was chosen United 
 States senator. In 1855 he made an excellent reputation as a "stump 
 speaker" for the newly-organized republican party; and in 1856 added 
 largely to his reputation as a lawyer by his argument in the case involv- 
 ing the right of the respective contestants before the people to the 
 office of governor. The fact that he was retained in that case, which 
 called forth the best efforts of J. E. Arnold, H. S. Orton, M. H. Car- 
 penter, J. H. Knowlton and E. G. Ryan, closes the door to any question 
 of his professional standing. Mr. Howe might have been elected to the 
 senate of the United States in 1857 but for the fact that he had taken 
 strong ground in opposition to" the states' rights views which were 
 then predominant in the republican party; but he preferred defeat to 
 any modification of his opinions, and saw himself fully vindicated by the 
 acceptance of his views a little later. He was re-elected to the senate 
 in 1867 and again in 1873, each time without the formality of a caucus. 
 At the end of eighteen years of service in that body he was defeated by 
 Matt. H. Carpenter in 1879. Mr. Howe's other public services included 
 a commissionership for the purchase of the Black Hills territory from 
 the Indians, membership in the international monetary conference held 
 in Paris in 1881, and a seat in the cabinet of President Arthur, as post- 
 master-general, which he took in January, 1882. His death occurred 
 March 25, 1883. It was generally understood that during the second 
 presidential term of General Grant Judge Howe was tendered the ap- 
 pointment of chief justice of the supreme court of the United States, 
 that he put aside the honor because the legislature of his state was demo- 
 cratic, and his successor would therefore be of that faith. 
 
CHAPTER VI. 
 THE SEPARATE SUPREME COURT AND ITS JUDGES. 
 
 The constitution as adopted in 1848 authorized the legislature, after 
 the expiration of five years, to provide by law for the organization of a 
 separate supreme court, to consist of one chief justice and two associate 
 justices, to be elected by the qualified electors of the state at such time 
 and in such manner as the legislature may provide; and that the sep- 
 arate supreme court', when so organized, shall not be changed or dis- 
 continued by the legislature. The term of office was fixed at six years. 
 
 Pursuant to this power the legislature of 1852 provided by law that 
 an election should be held on the last Monday of September of that 
 year to choose one chief justice and two associate justices; that the 
 terms of office of the persons elected should commence June i, 1853; 
 that the term of the chief justice should expire with the last day of 
 May, 1857; that the term of one of the associate justices should expire 
 on the last day of May, 1855, and of the other associate justice on the 
 same day in 1859; that it was to be decided by lot between the two 
 associate justices whose term of office should first expire. The salary 
 was fixed at two thousand dollars per year. 
 
 The election resulted in the choice of Edward V. Whiton as chief 
 justice, and Abram D. Smith and Samuel Crawford as associate justices. 
 The latter drew the short term. These gentlemen quahfied June i, 
 1853. The same day La Fayette Kellogg was appointed clerk; his 
 ser\ace in that capacity continued until June, 1878. 
 
 The first session of the court was held June 21, 1853. There were 
 admitted to its bar on that day R. N. Messenger, AUison Lewis, A. W. 
 Farr, J. B. Jilsun, A. R. R.- Butler, James H. Howe, Jacob J. Enos, A. 
 Cook, O. B. Messenger, I. Woodle, J. R. Sharpstein, E. B. Bowen, H. 
 K. Whiton and R. K. Knight. The first proceeding in a cause was in 
 the form of a motion by F. Randall for a continuance. 
 
 On the 6th of July, 1853, the court made an order appointing Ed- 
 
 107 
 
Io8 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 ward G. Ryan its reporter. That gentleman seems not to have accepted 
 the office. This fact explains what Judge Smith says in the preface 
 to the first volume of the Wisconsin reports: "At the commencement 
 of the functions of the separate supreme court provision was made by 
 appointment for full and accurate reports of its decisions. Up to the 
 close of the June term (or very nearly to its close) it was confidently ex- 
 pected that such arrangement would be carried out. But, unfortu- 
 nately for the profession, the expectations founded upon such arrange- 
 ment were disappointed, and, at the close of the term, the court found 
 itself without a reporter." The order appointing Mr. Ryan was revoked 
 -September 29, 1853. Judge Smith was thereafter appointed reporter. 
 
 Judge Crawford sat as a member of the court the last time May 31, 
 1855, and Judge Cole, chosen his successor, occupied a seat on the 
 bench for the first time June 19, 1855, the opening of the June term. 
 This was the first change in the personnel of the court since its organi- 
 zation. A sketch of Judge ^^'hiton has been given in a preceding 
 chapter. Sketches of Judges Crawford, Smith and Cole and their suc- 
 cessors follow: 
 
 SAAIUEL CRAWFORD. 
 
 Mr. Crawford was a native of Ireland, having been born in Baltibay, 
 county Monahan, April 11, 1820. His education was received in his 
 native land and is said to have been an excellent one. The exact date 
 of his arrival in this country is not stated, but it is said that he entered 
 upon the study of law and pursued it one year at Warwick, Orange 
 county. New York, and came to Galena, III, in 1841, where he finished 
 his reading. He was admitted to the bar in 1844, and began practicing 
 at New Diggings, Wisconsin, not far from Galena. It is said of him 
 that his habits were most exemplary for that region of wild life, where 
 was plenty of money and little of civilization, and that he soon became 
 ■prominent. He distinguished himself in several important trials, and 
 •his fame spread throughout the mining region. He had the bearing of 
 a high-spirited, cultured gentleman, and a manner which, while some- 
 what imperious and masterful, was fascinating, and he soon became 
 ■popular. He was an able politician and a graceful and eloquent 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 109 
 
 speaker. He had no little dramatic power, and, in his earlier days, 
 would bear a part in a play with great adaptation. The theatrical 
 troupes in those days thronged to New Diggings, sure of good houses 
 and appreciative audiences. Crawford sometimes took a part, and 
 when Joe Jefferson was there in his youth the young lawyer gave him 
 advice as to his acting and how to reform it. 
 
 Mr. Crawford did not remain at New Diggings long, but removed 
 to Mineral Point, and became a member of the firm of Dunn & Craw- 
 ford, the senior being Francis J. Dunn. Their business, already large, 
 became more extensive. In 1852 Mr. Crawford was elected an asso- 
 ciate justice of the supreme court, and drew the short or two-year 
 term. His views as expressed in his opinions in the cases arising out 
 of the fugitive slave law were not in accord with the rapidly rising 
 tide of anti-slavery feeling, and at the expiration of his term he failed of 
 election, Orsamus Cole being chosen his successor. On his retirement 
 from the bench he returned to Mineral Point, and, except for a brief 
 period of residence at Madison, continued in practice there until 1861, 
 in which year he died, on the 28th of February. His political ambition 
 was never fully gratified, he having been an unsuccessful candidate for 
 Congress against C. C. Washburn in 1856 and for attorney general in 
 1859. 
 
 "He was an able and gifted man, highly esteemed in his time, 
 evincing always the high spirit, courtesy, dignity and hospitality of the 
 higher classes of his nationality. His written opinions show a culti- 
 vated and trained mind. . . . With small allowance for the con- 
 vivial frailties that were too common in his time and in that region, 
 he was an ornament to the bench and bar during the period of his 
 activity, and his untimely death was mourned throughout the state."* 
 
 *Edwin E. Bryant, in The Green Bag, vol. 9, p. 114. 
 
 A correspondent writes the editor that when Mr. Crawford settled at New Dig- 
 gings he was a pompous freshman recently from college and law school. He was a 
 delightful conversationalist, using the choicest and most felicitous language. He 
 read his Bible and prayer-book, and was, in the language of the miners, "too nice for 
 these diggings." He was a thorough gentleman. Though kind and polite to the rough 
 element, he never chose ill-bred people for his companions. Mr. Crawford was 
 rather a polished than a forceful speaker. His legal attainments were of a high order. 
 
no HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 ABRAM D. SMITH. 
 
 Mr. Smith was elected an associate justice of the supreme court on 
 the last Monday of September, 1852. But little is known of his early- 
 life. He was born in Lowville, Lewis county, New York, but at what 
 time is not stated. The nature and extent of his early education are 
 matters of uncertainty. He came to Wisconsin in 1842 and located in 
 Milwaukee, where he entered upon the practice of his profession. In 
 1847 he was defeated by Rufus King as a candidate for a seat in th^ 
 second constitutional convention. In 1848 he was a candidate against 
 Levi Hubbell for the office of judge of the second circuit, comprising 
 Milwaukee, Waukesha, Jefferson and Dane counties, but was unsuc- 
 cessful. The following incident, narrated by Edwin E. Bryant in his 
 sketch of the supreme court,* it is said, explains his defeat, "Before 
 coming to Milwaukee, and in his youth, he was justice of the peace in 
 Cleveland, Ohio. During a 'scare' in regard to the small-pox a person 
 afflicted with that disease had been placed in an isolated building, and 
 there left alone, no one being allowed to visit him. A humane and high- 
 spirited physician, in violation of municipal regulations, broke into the 
 building and ministered to the sick man. For this humane and lawless 
 act he was brought before Justice Smith, who imposed a heavy fine. In 
 the ofifice of this doctor was a young Irish student, William H. Fox, 
 who afterwards became an excellent and influential physician in Dane 
 county, Wisconsin. When Mr. Smith became a candidate for circuit 
 judge. Dr. Fox took the field against him, having stored away a grudge 
 for this severity to the good Samaritan, his medical teacher. By his 
 activity in Dane county the scales were turned, and Smith was defeated 
 by a few votes, and Doctor Fox declared 'the account settled.' " Judge 
 Smith continued his practice in Milwaukee until his election to the su- 
 preme court in 1852. 
 
 An incident is related which throws some Hght on the political 
 methods of those days. Judge Hubbell and Judge Smith were candi- 
 
 *9 Green Bag, no. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. HI 
 
 dates for the democratic nomination for chief justice. Smith's friends 
 advised him, after the convention had met, to become a candidate for 
 associate justice; this he consented to. A motion was made in the con- 
 vention to nominate the candidates for associate justices first. The 
 convention was surprised, the motion was put so quickly that protests 
 were unavaihng and was declared carried before those opposed to it 
 could manifest their opposition. Smith and Crawford were nominated 
 for associate justices and Milwaukee, having a candidate in the person 
 of the former, could not press Judge Hubbell as a candidate for the 
 chief justiceship, and Judge Larrabee was chosen, but failed of election. 
 Judges Smith and Crawford were elected. The former's views on the 
 powers of the state and federal governments, as expressed in the case 
 arising out of the fugitive slave law,* cost him his seat. Byron Paine 
 was selected as a candidate by a caucus of republican members of the 
 legislature and leading men of that party, and Judge Smith did not 
 become a candidate. He returned to Milwaukee at the close of his 
 term and remained in practice there until the civil war opened; though 
 for a brief period he was the editor of the Free Democrat. Soon after- 
 ward he accepted from the government an appointment in South 
 Carolina as tax commissioner, and spent most of his time there till his 
 death, which occurred in New York City, June 3, 1865. His interment 
 took place in Milwaukee on the nth of the same month. 
 
 Referring to the strong views held by Judge Smith on the question 
 of the rights of the states (which were expressed in opinions written by 
 him in controversies growing out of the fugitive slave law), Jonathan 
 E. Arnold said on the occasion referred to: "There were some points in 
 his peculiar political and constitutional views, which have made him so 
 prominent both at home and abroad, about which there is and wiU be 
 a difference of opinion. But whether they were true or false, right 
 or wrong, he was the leading spirit that originated and taught them. 
 He lived to see them become the settled law and pohcy of the state, 
 and they were incorporated into and adopted by every department of 
 the government." Referring to this subject Justice Cole, who sat 
 
 *See General Winkler's contribution, ch. 2. 
 
112 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 on the bench with Justice Smith for four years, said: "Judge Smith was 
 endowed by nature with a singularly original and vigorous mind, which 
 had been invigorated and enriched by much reading and learning. He 
 had an abiding love for and devotion to the great principles of civil 
 liberty and natural justice; and I believe it was the strongest desire of 
 his soul that every human being, however degraded, should enjoy his 
 natural rights. And if, for the purpose of securing these rights to the 
 downtrodden and oppressed. Judge Smith ever advanced from the 
 bench constitutional views which some deem unsound, it is sufficient 
 to say that the great mass of the loyal people of the country have 
 adopted his views in regard to the particular law which called them 
 forth, overlooking his errors, if he fell into any, and freely pardoning 
 something of the spirit of liberty by which he was actuated. Further- 
 more, he was fearless and independent in all his judgments, following no 
 authority which did not seem to be founded on principle and reason." 
 Justice Cole further said of Judge Smith: "All his opinions were well 
 written and will compare favorably with those of any contemporary 
 judge of our sister states, while some of them are marked by remarkable 
 ability and force of reasoning. It was impossible to become acquainted 
 with Judge Smith without discovering many traits of character which 
 would command love and regard. . . . He was genial and warm 
 in his feelings. He was also constant in his attachments, and open, 
 direct and manly in all his conduct. I can but believe that he enjoyed to 
 the last, in a high degree, the personal regard and good will of all his 
 professional brethren of the bench and bar of the state." 
 
 Judge Smith reported the cases in volumes i to ii, inclusive, Wis- 
 consin reports, covering the years 1853 to 1859. 
 
 ORSAMUS COLE. 
 
 On the 15th of June, 1855, Orsamus Cole entered upon the cUs- 
 charge of his duty as an associate justice of the supreme court, a tri- 
 bunal to which he brought the most patient industry, a highly cultivated 
 mind, the highest type of character, a marked judicial temperament, and 
 in which he was an ornament for nearly thirty-seven years. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. II3 
 
 The birthplace of Orsamus Cole was Cazenovia, Madison county, 
 New York; the time August 23, 1819. In 1843 he was graduated from 
 Union college. After preparing for the practice of the law he came as 
 far west as Chicago, but remained there only a few months, when, in 
 1845, he removed to Potosi, Grant county,Wisconsin, in the lead mining 
 region. In connection with William R. Biddlecome he built up a good 
 practice and remained there until the performance of official duties im- 
 posed upon him by the wiU of his fellow citizens necessitated a change 
 of residence. In 1847 he was elected a member of the second constitu- 
 tional convention from Grant county, "in which body he served with 
 marked fidelity and ability. He was a member of the committee on ex- 
 ecutive, legislative and administrative provisions, and was one of the 
 most faithful and hard-working members upon it. Mr. Cole was one of 
 the youngest members of the convention, and his proverbial modesty 
 caused him to shrink from taking a leading part in the debates for some 
 time; but he soon took rank among the ablest and clearest debaters in 
 that body of able men. His cautious habits made him a most valuable 
 man in forming fhe organic law of the state, and at the close of the ses- 
 sion but few men stood higher in the estimation of his fellows than did 
 Orsamus Cole. He had taken prominent part in the shaping of all the 
 more important articles of the constitution."* 
 
 In 1848 Mr. Cole was elected to Congress as a whig, his opponents 
 being A. Hyatt Smith, democrat, and George W. Crabb, free soiler. 
 Notwithstanding the changes in political views and affiliations which re- 
 sulted from the succession of Mr. Fillmore to the presidency, on the 
 death of President Taylor, Mr. Cole stoutly maintained his anti-slavery 
 principles and earnestly opposed the enactment of the compromise 
 measures and the fugitive slave act. 
 
 At the close of the thirty-first Congress j\Ir. Cole returned to Potosi 
 and resumed the practice of his profession. In 1853 he was made the 
 whig candidate for attorney general, and was a candidate for that office 
 upon the people's ticket, a consolidation of the whig and free soil parties. 
 The whole ticket was unsuccessful. At about this time Mr. Cole was 
 
 *Fathers of Wisconsin, p. 196. 
 
114 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 nominated for the state senate, but was defeated by a small majority by 
 Nelson Dewey, then ex-governor. 
 
 By the winter of 1855 the republican party had secured a majority of 
 the members of the legislature. Party feeling was strong, and the objec- 
 tions to a partisan judiciary had not been so fully appreciated as in 
 these later times. Judge Samuel Crawford's term upon the bench of 
 the supreme court was to expire in June of that year, and he was a 
 candidate for re-election. A caucus of the republican members of the 
 legislature placed Mr. Cole in nomination to succeed Judge Crawford, 
 notwithstanding the candidacy of Timothy O. Howe for the honor and 
 the fact that Mr. Cole was not a candidate, did not know that his name 
 was to be considered, and doubted his fitness for the place. On learning 
 of his nomination his purpose was to decline it; and it took the strong 
 persuasions of his warmest friends, including C. C. Washburn, to dis- 
 suade him from his purpose. The election resulted in Mr. Cole's success, 
 and in June, 1855, he assumed the duties of his position. In 1861 Judge 
 Cole was re-elected, receiving 56,171 votes against 50,315 for James H. 
 Knowlton and between 5,000 and 6,000 for Charles A. Eldredge, and in 
 1867 by 46,895 votes as against 8,236 for Lucien P. Wetherby. In 1873 
 there was no opposition to Judge Cole's re-election; but in 1879 Judge 
 INI. M. Cothren, of Mineral Point, became a candidate and made an 
 effort to secure his election, with the result that Judge Cole received 
 100,692 votes to 67,554 for his opponent. 
 
 In November, 1880, Chief Justice Ryan died, and Governor Smith, 
 in response to a prevalent sentiment among the lawyers and people, ap- 
 pointed Judge Cole his successor. At the election in April, 1881, that 
 appointment was ratified by his election, without opposition beyond a 
 limited number of scattering votes, for the unexpired and the full term 
 of ten years, thus making his term end January 4, 1892, and extending 
 his whole consecutive judicial labor over almost thirty-seven years. 
 
 On the 29th of December, 1893, Charles E. Dyer, formerly United 
 States judge for the eastern district of Wisconsin, presented the supreme 
 court a portrait of Judge Cole. His remarks on that occasion and the 
 response thereto by Chief Justice Lyon so faithfully portray the judicial 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. US 
 
 career of Judge Cole that they are reproduced here without material 
 condensation. Mr. Dyer said that Judge Cole's "connection with this 
 high court of judicature, extending through a period of nearly thirty- 
 seven years, entitles him to this recognition." Public position is to be 
 valued in precise proportion to the fidelity with which its duties are per- 
 formed. The value to the state of the public life of Judge Cole must be 
 estimated in accordance with that principle, and so estimating it, his ser- 
 vice has been invaluable. The political world, oftentimes with turbulent 
 demonstration and even unseemly flattery, bestows its honors upon its 
 living idols and heroes. Why should not those whose lives have been 
 laboriously spent in the retiracy of judicial vocation, fashioning and 
 building the jurisprudence of a commonwealth, be also kindly remem- 
 bered, and their achievements suitably recognized, while they are still 
 with us and of us and may yet enjoy the pleasures of happy retrospect 
 and the realization of the public gratitude. 
 
 "The work of the bench is growing to be more and more valued and 
 its power more and more felt. A preacher of distinction, whose 
 thoughts keep pace with modern progress, says the bench of the current 
 times seems as pure as the closet of literature. Further, he says, it is the 
 happiness of the bar to congratulate the times over the fact that the 
 judges in the higher courts draw their decisions from the law and the 
 evidence; 'and that whereas one age was happy in possession of one 
 honest judge, — Matthew Hale, — our country is happy in the possession 
 of many such administrators of justice. More and more have educated 
 men in literature and in the professions sought to combine with their 
 mental gifts and their position the fame of integrity.' 
 
 "Every lover of this country must rejoice that this is so; for, 'the 
 fame of integrity' endures, when, without it, briUiancy of intellect per- 
 ishes with the decay of its possessor. 
 
 "The public career of Judge Cole forms a large part of the judicial 
 history of the state, and has secured to him the true fame of which I have 
 spoken. He has been associated with all members of this court in un- 
 broken succession, from June, 1855, when Edward V. Whiton was chief 
 justice, to the time when he left the bench, himself chief justice, January 
 
Il6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 4th, 1892. His judgments may be read in every volume of the Wiscon- 
 sin reports from the fourth to the eighty-first volumes, both inclusive. 
 The value of his contributions to the jurisprudence of the state is in 
 equal proportion to the extent of his work. 
 
 "He had not been long on the bench when it devolved upon him to 
 deliver judgment, in concurrence with that of his associates, in a cause 
 which had for its advocates on one side or the other such lawyers as 
 Jonathan E. Arnold, Edward G. Ryan, his honor, Mr. Justice Orton, 
 Matthew H. Carpenter, Timothy O. Howe, and James H. Knowlton. 
 I refer to the celebrated case of Bashford vs. Barstow. 
 
 "Then coming down to the period of the civil war, in the case of 
 Griner, reported in i6th AVis. Rep., Judge Cole delivered the judgment 
 of the court — and it was most instructive and exhaustive — sustaining 
 the power of the President to call out the militia to execute the laws of 
 the Union, and his authority, for that purpose, to draft and call into the 
 field the .quota of militia assigned to the state. And in the same volume 
 is reported his opinion with those of two other eminent judges, Dixon 
 and Paine, in the case of Kemp, wherein it was adjudged that the 
 proclamation of the President suspending the privilege of the writ of 
 habeas corpus was not a legal and valid exercise of executive power, 
 under the constitution and laws. 
 
 "In Jones vs. The Estate of Keep, reported in 19th Wis., Judge Cole 
 delivered the judgment of the court that the provision of the act of 
 Congress of 1862, which required stamps to be affixed to "writs or other 
 original process by which any suit is commenced in a court of record,' 
 was unconstitutional and void, holding that such writs or other 
 processes were essential means by which the state governments exer- 
 cised their functions, and therefore exempt from taxation. 
 
 "Other causes involving important public questions in which Judge 
 Cole promulgated the law, such as Delaplaines" case, reported in 42d 
 Wis., which presented the great subject of riparian rights, might be al- 
 luded to, but with all of them the courts and the bar are familiar. 
 
 "Human ambition may well cease its struggle, and intellectual effort 
 may exchange activity for repose, when both have been crowned with 
 
HISTORY OF THE BENCH y\ND BAR OF WISCONSIN. 117 
 
 a life work so useful and complete. To nobly and honorably connect 
 one's name with the jurisprudence of a nation or a state, is to achieve 
 that character of fame which no changes of time or circumstance can 
 efface. The work of the artist's brush or the sculptor's chisel, highly 
 wrought and finished as it may be, may perish in the scourge of the 
 destroying elements, and be lost even to memory. But though the 
 memorial, whether in portrait or statue, become extinct, the fruits of 
 the learning and research and toil of the subject of that memorial remain 
 in their richness and excellence, and are imperishable. 
 
 "Generations may come and go, but the judge on the bench and 
 the lawyer at the bar will continue to appeal for support and justifica- 
 tion to the jurists who have stamped their jiidgments with the character 
 of commanding authority. For they are such as have lived 
 
 'To clutch the golden keys, 
 
 To mould a mighty state's decrees.' 
 
 "Thirty-seven years measure the period of many a professional life- 
 time. It has been the happy fortune of the judge wdiose service on the 
 bench of this court we commemorate, to have faithfully and honorably 
 discharged the functions of his high office for nearly that whole period. 
 We of the bar take just pride in such a record of judicial achievement. 
 But the testimony to the worth and value of the work of Judge Cole 
 is not limited to such as springs merely from local regard and pride. 
 He has achieved honorable place among the jurists of the land. He was 
 a pure judge, an upright judge, a just judge. He mastered the facts and 
 enunciated the law. Patient, thoughtful, laborious, kind, attentive and 
 true to every dictate of conscience and sense of duty, he stands as a 
 model for judge and lawyer to copy." 
 
 On behalf of the court, Mr. Chief Justice Lyons responded as fol- 
 lows: 
 
 "Judge Dyer: My brethren have placed me under a great obliga- 
 tion by awarding me the privilege of expressing to you our united 
 thanks for your generous donation of the portrait of Judge Orsamus 
 
 Cole, late the chief justice of this court. It has been placed and will 
 S 
 
Il8 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 remain with the portraits which adorn these walls of several former 
 justices of the court with whom he served. The artist has happily suc- 
 ceeded in catching and perpetuating upon the canvas the calm, benig- 
 nant expression of face and feature which beamed upon more than a 
 generation of lawyers who practiced in this court while he was one of its 
 members, — an expression which never darkened and which always in- 
 spires respect and afifection. 
 
 "My brethren also especially desire that you be assured of our united 
 appreciation of your timely and most eloquent remarks on this occasion, 
 in which, in fitting terms, you have rendered just tribute to the fidelity 
 and usefulness during his long judicial career, as well as to the great 
 ability, of our friend and former official associate. And, better than 
 all else, what you have said of the loveliness of his character finds a 
 cordial response in each of our hearts. 
 
 "Judge Cole is the last of the elected chief justices of this court. 
 This portrait will occupy the panel reserved for it with the portraits of 
 the other chief justices by election, — Whiton, Dixon, and Ryan, — to- 
 gether with that of Chief Justice Dunn of the territorial supreme court. 
 All these were able jurists and were prominent and useful in laying the 
 foundations of our jurisprudence in broad and enduring principles. The 
 fame of some of them is national. It is no disparagement to the memory 
 of the others to say that in symmetry of character, in untiring, well- 
 directed industry, in strength and accuracy of judgment, in love of 
 justice, in obedience to the law, in unswerving fidelity to duty. Chief 
 Justice Cole is the peer of any of them. AVe pay honor to the memory 
 of either of those great chief justices when we say of him that he was 
 the peer of Chief Justice Cole. For more than thirty-six years he was an 
 honored member of this court, and during that time took part in the 
 adjudication of thousands of causes. Many of them involved questions 
 of vast importance to the state — some were of national concern — and all 
 of them affected rights of person, reputation or property. Their de- 
 termination required careful study and wise discrimination, so that the 
 law should be correctly stated and applied. In the discharge of these 
 high duties, Judge Cole patiently listened to argument and the views 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 119 
 
 of his brethren, carefully weighed the same and investigated for himself, 
 and, when convinced, gave judgment, and gave it in obedience to the 
 law and in fear of God. He feared none else. Such a man can never be 
 moved by applause or censure, no matter from whence it comes. 
 
 "During the last few years of Judge Cole's service here, the business 
 of the court was conducted almost entirely by lawyers who were ad- 
 mitted to practice in this state after he became one of its members. It 
 is a great satisfaction to know that in what we are saying on this occa- 
 sion we voice the unanimous sentiment of all who ever practiced before 
 him, as well as of all the people of our state who have had opportunity 
 to know his services and worth. 
 
 "The record of Judge Cole's judicial life, and the evidences of his 
 great ability, are contained in seventy-eight volumes of Wisconsin re- 
 ports — from volume 4 to volume 81 inclusive — in which are reported 
 the opinions and judgments of the court in about eight thousand causes. 
 Besides those in which he wrote the opinions, nearly all the others 
 passed the scrutiny of his conscientious investigations both of fact and 
 law, — a record of judicial labor which has seldom been surpassed. I 
 should do violence to my feelings were I to abstain from reproducing 
 here what you said of Chief Justice Cole, when, two years ago this day, 
 exercises were had in this place in memory of Chief Justice Dix6n, then 
 lately deceased, on which occasion you were one of the speakers. 
 These were your words: 'For more than thirty-six years he sat upon 
 this bench, administering justice to his fellowmen in a spirit and with a 
 devotion perfectly consonant with his pure and stainless life. A record 
 without a blemish. A name imperishably associated with the judicial 
 annals of the commonwealth. Having been in early years the contem- 
 porary and associate of Whiton, Smith, Dixon, Paine, and Downer, and 
 thenceforward of Ryan and Taylor, and the present members of this 
 court, his memory covers a period of judicial history replete with inter- 
 esting retrospect and reminiscence. Happy logic of events it was, that 
 crowned such a career with the chief justiceship of a court which is the 
 pride and glory of the state. With head whitened in pubhc service, he 
 has carried with him in his retirement not alone the reverent respect and 
 
120 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 high esteem of his brethren of the bench and bar, but he shall go laden 
 with the spontaneous tributes of their affection and with the earnest 
 wishes that many years of health and happiness may yet be his lot and 
 portion.' " 
 
 From 1876 until 1892 the editor of this work was in almost daily con- 
 tact with Judge Cole, and, notwithstanding disparity in years, attain- 
 ments and position, flatters himself that he enjoyed some measure of that 
 distinguished gentleman's respect. Such knowledge of him as has thus 
 been gained has been one of the delights of life and has led to a measure 
 of respect which is beyond expression, though it would fain pay some 
 tribute to him. Instead of attempting anything because of the appre- 
 hension that due moderation might not be observed quotation is made 
 of language applied by Hon. Seymour D. Thompson to the late Judge 
 Howell E. Jackson : "As a lawyer, he was studious, careful and accurate. 
 As a statesman, he was incorruptible, moderate and just. As a judge, he 
 was laborious, impartial, patient and urbane. As a man, he was a char- 
 acter to be envied, and a model to be imitated. Possessed of that un- 
 afifected gentility which is the result of a mingling of self-respect with 
 respect and kindness for others; always self-restrained; never giving 
 nor unduly resenting offense. Not a prodigy; not a genius, not pos- 
 sessed of those commanding powers which in other men make leader- 
 ship and sway so easy; but amply endowed, and making the best use of 
 the powers he had. Not a religious fanatic, but a firm and consistent 
 Christian. Not a moral enthusiast, but a moral example. A character 
 abounding in lines of beauty, and showing scarcely a blemish or defect. 
 Nowhere exaggerated, but everywhere strong. No extraordinary de- 
 velopment in any direction, but everywhere well filled out: 
 
 'Strong, without rage; without o'erflowing, full.' " 
 
 At the time of this writing Judge Cole is residing in Milwaukee 
 with his son, Sidney H. Cole. His health enabled him to attend the semi- 
 centennial exercises commemorative of the organization of the state at 
 Madison in early June, 1898. He was the only member of the second 
 constitutional convention present; though but for the sudden death of 
 
^:ri^.*^C. xj^ X9^x:' 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 121 
 
 A. M. Carter, of Rock county, at the Mendota hospital on the 7th of 
 June, he would have probably had the pleasure of meeting one of his fel- 
 low-members in that body. 
 
 The death of Judge Whiton, in April, 1859, made the next change 
 in the membership of the court; to fill the vacancy thus caused Gov- 
 ernor Randall appointed Luther S. Dixon as chief justice; he qualified 
 April 20, 1859, and served until June 17, 1874, when he resigned. 
 
 LUTHER S. DIXON. 
 
 Mr. Dixon was born in Milton, near Burlington, in the valley of the 
 Lamoille, Vermont, June 17, 1825. He came of the sturdy stock of 
 the farmers of that vicinity. He was educated in the common schools 
 and academies of that region and, in addition, was, for a year or two, 
 a student at the Norwich military academy. It is said that he took high 
 rank there as a student, being especially strong in Latin. The means 
 necessary to defray his expenses as a student were procured by teaching 
 school. His legal education was obtained in the office of Luke P. 
 Poland, a widely known lawyer, judge of the Vermont supreme court. 
 United States senator and member of Congress. Mr. Dixon was ad- 
 mitted to the bar in 1850. In 185 1 he came to Wisconsin and entered 
 upon the practice of his profession at Portage. While resident there he 
 was twice elected district attorney of Columbia county, and while dis- 
 charging his duties as such was brought into local prominence by the 
 trial of a murder case in which he was opposed by two of the older and 
 ablest lawyers of the state. On the resignation of A. L. Collins as judge 
 of the ninth circuit Governor Randall appointed Dixon his successor 
 in 1858. Of his career as circuit judge Mr. Pinney has said that "by 
 his frank, genial and manly bearing he won his way to public confidence 
 and esteem. Few of our public men have had the faculty of so readily 
 attracting friends and admirers, and no one had less inclination to seek 
 political honors at their hands. He came to the bench of the ninth cir- 
 cuit at an early age, with a professional experience of not more than 
 seven years. He manifested great facility and fairness as a trial judge. 
 
122 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 His calm, deliberate, and patient, but resolute methods, united to a 
 skill in the exercise of that judicial discretion that a trial judge has 
 almost constant occasion to use, with readiness in the application of 
 legal principles, rendered him a most acceptable and satisfactory judge. 
 Liberal in the administration of the practice of the court, he took care 
 that liberality did not beget looseness of practice, and that it did not 
 operate to the prejudice of the opposite party." 
 
 In 1859 the death of Chief Justice A\'hiton made it the duty of Gov- 
 ernor Randall to appoint a person to fill that office. He appointed 
 Judge Dixon, who was then thirty-three years of age, and had but a 
 few months' judicial experience, and who was comparatively unknown 
 throughout the state as a lawyer and jurist. The appointment was re- 
 garded with some distrust for these reasons. This was removed soon 
 after opportunity came to the appointee to show what manner of man 
 he was. 
 
 "Very soon after his appointment his judicial fearlessness and stam- 
 ina were put to the test. The court had previously decided the fugitive 
 slave law unconstitutional, and that the state courts and judges could 
 issue writs of habeas corpus and discharge prisoners from custody who 
 were arrested by federal authority for violating it. Booth (as elsewhere 
 stated) had been convicted in the United States district court, under 
 Judge Andrew G. ^filler, for assisting in the rescue of Glover, the fugi- 
 tive slave, and had been convicted, and the supreme court of AVisconsin 
 had, upon habeas corpus, discharged him. The court had also, in 1857, 
 disregarded the writ of error sent down by the supreme court of the 
 United States to call up the record for review, and had directed its clerk 
 to make no return to it. In 1859 the supreme court of the United 
 States, having obtained a copy of the record unauthenticated, proceeded 
 to review and reverse the decision, in the case of Ableman vs. Booth, 21 
 How., 506, and sent down its mandate and remittitur. A motion was 
 made to file them. On this motion Chief Justice Dixon filed a lengthy 
 opinion in support of the appellate jurisdiction of the federal supreme 
 court over the case. (11 Wis., 498.) This raised a storm of censure in 
 the republican party, to which Dixon belonged. The republican press 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 123 
 
 opposed his election, which must be held in the spring of i860. A 
 'state-rights' candidate was put in nomination. Chief Justice Dixon was 
 called out to 'run independently.' The republican press quite generally 
 opposed his election, though a very considerable portion of the repub- 
 lican party did not endorse the ultra 'state-rights' position of the court 
 in denying the appellate jurisdiction of the federal court of last resort 
 in the fugitive slave law cases. Judge Dixon received his first election 
 from the people by a majority less than 400, in a vote of about 113,000. 
 The campaign was quite spirited, especially in the newspapers. A not- 
 able event of the election was a speech by Hon. Abram D. Smith, ex- 
 judge, in support of the decisions he had made, and an answer to it by 
 Hon. Timothy O. Howe. These speeches were an elaborate discussion 
 of the aspect of the 'state-rights' doctrines, which had attracted such 
 wide attention. 
 
 "The war came on, and the 'state-rights' cjuestion soon became, to 
 use the familiar phrase of the politician, 'a dead issue.' Judge Dixon's 
 subsequent elections were without opposition,* except one which sig- 
 nally demonstrated his strength with the people. He found it hard to 
 support his family on the small pay allowed. In 1867 the salary was 
 raised by law from $2,500 to $3,500, but by the constitution this in- 
 crease could not apply to his then present term. He resigned, and the 
 governor at once appointed him till the vacancy could be filled by elec- 
 tion. The democracy were then organizing for the presidential cam- 
 paign of 1868, and sought to make capital out of the fact that the chief 
 justice had evaded the constitutional bar to increase of salary by a resig- 
 nation and reappointment. They ran Judge Charles Dunn against him 
 in the judicial election of 1868, but he was elected by a large majority. 
 He was chief justice until 1874, when he resigned, in the midst of his 
 term. The meager salary ($5,000) drove him to seek more lucrative 
 employment at the bar. The bench and the bar greatly regretted to 
 
 *This is an error. In 1863 Judge M. M. Cothren was the democratic candidate 
 for chief justice; and while he received a majority of the home vote the soldier vote 
 in the field turned the scale in favor of Judge Dixon. A. Scott Sloan was the repub- 
 lican candidate for chief justice in i860. 
 
124 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 lose his judicial work, for he stood admittedly among the foremost 
 judges in the Union. His reputation had become national"! 
 
 On leaving the bench, Judge Dixon took up his residence in Mil- 
 waukee, and became the senior member of the firm of Dixon, Hooker, 
 Wegg & Noyes, one of the strongest firms in the state. Soon there- 
 after he appeared as counsel for the state in the celebrated "granger 
 cases," which involved the power of the legislature to regulate rail- 
 road charges. The origin of these cases and an account of Judge 
 Dixon's appearance in them in the federal court has been thus written 
 of: "The Patrons of Husbandry had become a strong order among 
 the farmers. Strongly impressed with the idea that the railways were 
 
 tEdwin E. Bryant in vol. g, Green Bag, Ii8. These observations have been made 
 by Mr. Bryant concerning Judge Dixon's opinions: His decisions are always in- 
 teresting reading. They are notable for their logical strength, and are never wanting 
 in an unstudied eloquence and beauty of expression. He was a man of original mind. 
 He did his own thinking and reached his own conclusions. Free from pride of 
 opinion, he could review his own decisions, acknowledge errors, and reverse or over- 
 rule himself. Usually of a serious and solid tone and style of discussion, there occa- 
 sionally crept into his opinions some quaint phrase or metaphor or illustration reveal- 
 ing the wealth of humor which bubbled out in his private conversation. In one case, 
 where he was compelled to hold that the "married women's act," allowing the wife to 
 hold and control her separate estate had not absolved the husband from liability for 
 the ante-nuptial debts of his wife, he said: "The modern husband is twice happy. 
 First, he is happy as the quiet spectator of his wife's enjoyment of her property; and 
 again he is happy in paying her debts, or, if he refuses, in being sued and compelled 
 to pay." (19 Wis., 336.) In another case he was combating the position that a per- 
 son could build a store building, rent the lower floors, and live with his family 
 in the fourth or fifth story, and claim the whole building as an exempt homestead, 
 and he illustrates the absurdity, as it seemed to him. of the position. He says: "We 
 are told in history that Diogenes, the celebrated cynic philosopher, at one time took 
 up his abode in a tub belonging to the temple of Cybele. I suppose the tub became 
 ipso facto a dwelling-house, in the ordinary sense of that word; and that hereafter 
 strict propriety of language will require us to say that he lived in a dwelling-house 
 belonging to the temple instead of a tub. Nay, more, I suppose the moment the phil- 
 osopher got into the tub, that he might, had he been so inclined, have claimed it as 
 exempt under the operation of a statute like ours." In a case under the statute for- 
 bidding the selling of liquors to minors, the point urged in defense was that the 
 defendant did not know that the vendee was a minor, and that the statute ought to 
 be construed as if the word "knowingly" were in it. Judge Dixon took the other 
 view, and succinctly states the law to be that the saloon keeper "must know that tlie 
 person to whom he sells is a qualified drinker, within the meaning of the statute- 
 and, if not, he acts at his peril." 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 125 
 
 charging exorbitantly for freight and passenger carriage, they made a 
 special effort to carry the legislature in the fall of 1873 and the following 
 winter. The democracy were shrewd enough to nominate for governor 
 a prominent farmer and leader in the granges. The legislature and the 
 governor were elected on the 'boom' of this new issue, and at the follow- 
 ing session a law was passed fixing a limit to railway fares and freights 
 within the state. The railway companies took advice from distin- 
 guished sources, and having the written opinions of B. R. Curtis, 
 William M. Evarts and George F. Hoar that the law was unconstitu- 
 tional, refused to obey it, and so notified the governor. Thereupon 
 suits were instituted — one by the state to enjoin the companies from 
 disregarding the law, one in the federal court by some non-resident 
 bondholders to enjoin the state railroad commissioners from taking any 
 step to enforce the law. An able array of counsel appeared on both 
 sides with ponderous printed arguments. Judge Dixon was retained in 
 behalf of the state, and his friends were out in great force to hear 'the 
 effort of his life' at the bar. They were a little surprised and disap- 
 pointed when he began. He had no brief; he hesitated. He pulled 
 first from one pocket and then another little scraps of paper on which 
 he had jotted down points and authorities. His effort, to the audience, 
 seemed a flat failure; but it is told that, when the judges met in the 
 consultation room, Judge Davis remarked 'Dixon has told us the law of 
 this case;' and the court, and later the supreme court of the United 
 States followed his exposition and settled the then burning question as 
 to legislative control over corporations."* 
 
 It is generally believed that Judge Dixon might, had he consented, 
 been chosen United States senator in 1875, there being a dead lock 
 between the candidates. When approached on the subject he said that 
 he could not afford it. 
 
 Judge Dixon continued to reside and practice in Milwaukee until 
 1879, when he was obliged, by reason of asthmatic troubles, to remove 
 to higher altitudes. He went to Colorado, and there built up a profit- 
 able practice. His family remained in Milwaukee, and he considered 
 
 *g Green Bag, lig. 
 
126 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 that his home. In the latter part of November, 1891, he came to Mil- 
 waukee, after a professional visit to Washington. His disease had told 
 upon him, and soon ran its deadly course. On the 6th of December, 
 1891, the end came. On the 29th of that month a committee of the 
 bar — Edwin E. Bryant, Moses Hooper, George H. Noyes, A. A. Jack- 
 son and James B. Taylor — presented a memorial of the deceased judge 
 to the supreme court. The following paragraph will show the spirit 
 of that memorial and the place of Judge Dixon in the estimation of the 
 legal profession: "Among the many distinguished names on the roll of 
 our profession in Wisconsin, none shines with brighter luster than his; 
 none is more prominently associated with its judicial history, and he has 
 graven deep and lasting lines of influence upon the jurisprudence of the 
 state. Among our great jurists none will be longer remembered for the 
 qualities that command admiration and kindle warm attachment than 
 he, whose manly personality won the regard and confidence of men in 
 every walk of life. To the members of the bar of the supreme court 
 whose work reaches back to the period of his service there remains a 
 memory of one who presided with eminent ability, with a befitting dig- 
 nity so blended with kindness, patience, consideration for every advo- 
 cate who appeared before him as to make him loved and honored by 
 the whole brotherhood of the bar. To all these the announcement of 
 his death brings a deep sorrow. The world seems more lonely when so 
 manly, so strong and helpful and so gentle a spirit passes out of it; and 
 our profession suffers a loss, the sense of which will long abide." 
 
 The memorial was submitted with addresses by G. W. Hazelton, 
 Charles E. Dyer, F. C. A\"inkler, AA'infield Smith, Thomas R. Hudd, 
 ;\Ioses Hooper, S. U. Pinney and Bradley G. Schley. The address of 
 Mr. Dyer follows: 
 
 "Luther S. Dixon, the eminent jurist, the accomplished lawyer, the 
 just and true man, has finished his work and reached his journey's end. 
 How true are the words of one of the world's great writers, that there 
 is not a curfew bell but tolls at every evening hour the knell of some 
 departing friend. It is the fate of mortality. We go the way of our 
 fathers. Nature has so written it. Death is but submission to law. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 127 
 
 The visitations of that dread power, which sever all human relations 
 and terminate all human experiences, are impartial because they are in 
 obedience to law. If life is either lost or rescued, it is because the law 
 of animate and inanimate existence, inexorably applied to existing 
 events, unerring and suspended in its operations, controls the ultimate 
 result. In giving up his mortal life, therefore, our brother but sub- 
 mitted, as all men must do when 'the mould of nature's fabric' is broken, 
 to nature's final decree. 
 
 "Since his public services were so distinguished and his whole pro- 
 fessional career so honorable, it is most fitting that these memorial 
 services should have been appointed, and in this high and sacred place 
 it is most appropriate that his virtues should be commemorated. And 
 here it is worthy of remark that it is rare, indeed, that the bench and bar 
 of two states far distant from each other mingle their grief at the grave 
 of one beloved in common by all. But it was Judge Dixon's rare 
 fortvme to have commanded the high respect and won the affectionate 
 regard of the bar of Colorado and the bar of Wisconsin equally and 
 alike. This was worth living for. This is the reward of a manly, 
 noble and useful life. Better than great riches, better, far better, than 
 any emoluments of political place, better than any other title of honor, 
 is such achievement as this. To be thus enshrined in the memories of 
 our fellowmen is to attain the summit of human endeavor and as- 
 piration. 
 
 "The work of Judge Dixon as chief justice of this court began in 
 1859 with the ninth volume of the reports, and closed in 1874 with the 
 thirty-fifth volume, covering a period of about fifteen years. Richly 
 endowed with the qualities essential to success in judicial labor, his 
 work as a member of this court has indelibly impressed his name upon 
 the jurisprudence of the state. In mental as in physical stature he was 
 commanding, broad and strong, and his presence here will not be for- 
 gotten by any who ever came to present their causes to this court in 
 his time. The bench was his place. He was through and through a 
 judge. He adorned and honored the judicial office. He fulfilled its high 
 requirements, and to say this of any man is to bestow upon him the 
 
128 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 most honorable eulogium. It is a serious thing, as your honors know, 
 to be the arbiter between one's fellowmen. No functions are more 
 exalted, no duties more grave. He who trifles with judicial position, 
 he who in the slightest degree, by partisanship or otherwise, dishonors 
 its dignity, he who does not keep the ermine as white and spotless as 
 virgin purity, is unworthy of any trust. This was the sentiment of our 
 friend, and the name of Dixon is the synonyta of justice, integrity, 
 truth, and honor. These were virtues which illumined his character, 
 radiant as the sunlight, shining as the stars. 
 
 "His judgments are among the jewels of our jurisprudence. With- 
 out exception they bear the stamp of his penetrating and vigorous mind. 
 None fail in that lucidity of statement, strength of diction, and cogency 
 of argument which were his hapoy gifts. If his intellect was not what 
 may be called brilliant, it was comprehensive and powerful. If he was 
 sometimes wanting in that mental alertness and dexterity essential to 
 emergencies in forensic strife, his masterly powers of deliberation and 
 discrimination made him an ideal judge and a wise and safe counsellor. 
 
 "In his convictions he was resolute and courageous. When aroused 
 by needs of the occasion and by the conscious strength of the cause he 
 advocated, I have more than once seen him summon to his command 
 latent powers, the exercise of which instantly gave him the mastery of 
 the struggle. He needed a great cause to bring to the surface his 
 whole strength. He loved legal investigation more than aught else, and 
 he applied himself to it with unwearying diligence. Visiting his ofifice in 
 Denver one day during the past summer, I found a veritable armory of 
 law and law books, and there, I was told, when in health, he reveled 
 in great questions and cases. 
 
 "As both judge and practitioner. Judge Dixon appreciated the su- 
 preme rank of usefulness occupied by the true lawyer. His standard 
 of professional conduct was lofty. It could not be otherwise and be 
 in harmony with his own nature. He disdained the little things on 
 which little men thrive, and he viewed with contempt every deviation 
 from honorable purpose and conduct. 
 
 "On the bench he was not much given to speech, for he believed 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 129 
 
 in the saying of Lord Coke that 'a much speaking judge is not a well 
 tuned cymbal.' When he interrupted it was to keep the argument to the 
 point. 
 
 "He had high respect for sound authority, but he believed also, as 
 his opinions show, in original processes of reasoning. Some men have 
 the faculty in the highest degree of stating with precision what the law 
 is. Others have the faculty of stating what the law ought to be. 
 Dixon knew what the law is, and could state it so accurately that it was 
 dangerous to controvert his proposition. If as a judge he was con- 
 vinced that he had committed error, no pride of opinion would stand 
 in the way of its correction. For, like Lord Hardwicke, he would 
 think it 'a much greater reproach to continue in error than to retract it.' 
 
 "At all times frank and courteous, every impulse of his nature was 
 generous and noble. His heart was large, his society was congenial, 
 his salutation was hearty. He was plain and unobtrusive. He affected 
 nothing. On the bench and at the bar his demeanor towards his pro- 
 fessional brethren was always that of kind and cordial recognition. I 
 recall as a pleasant memory my first case in this court more than thirty 
 years ago, when Mr. Justice Lyon came with me as associate counsel 
 and as my personal friend, for I found that the young lawyer was re- 
 ceived by Chief Justice Dixon and his associates with the same consider- 
 ation and kindness as was any veteran of the bar. 
 
 "As a companion. Judge Dixon was delightful. Judge Drummond 
 — who also sleeps the sleep of the just, and whose name I reverently 
 speak — was wont to say that it always was a pleasure to meet Dixon, 
 he was such a likeable man. Genial in temperament, cultured in literary 
 acquirements, fond of anecdote, and abounding in great sense of humor, 
 he possessed most happily those qualities which drive away dull care 
 when the hours of serious occupation are past. 
 
 "It is good that such men have lived, and that they will continue 
 to live. They give hope and strength to other men. They cheer and 
 brighten life's journey. When they go from us they leave rich mem- 
 ories of manly Hfe and noble achievement. The recollection of their 
 virtues inspires us anew to the performance of every duty, and prompts 
 
130 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 to the emulation of their example. One after another our companions 
 in professional business and social life disappear from our presence. 
 They leave us to struggle, as they have done, with the great problem 
 of the future. Forever, here, the evidence "of things unseen' may to 
 many thoughtful men remain inconclusive; but such evidence as the 
 human mind can grasp confirms the hope of apother life where such 
 shadows and griefs as cloud this mortal existence give place to higher 
 conditions. Reason as we may, 
 
 'The voice of nature loudly cries. 
 And many a message from the skies, 
 That something in us never dies.' 
 
 "Since his time had inevitably come, it was a happy circumstance 
 that the friend whom we mourn should come back to home, family, 
 and friends to lay down life's burden. And it is most appropriate that 
 within view of that capitol, in the state where he earned his greatest 
 and his enduring fame, his mortal remains should rest in the keeping of 
 those he loved and who loved him." 
 
 On behalf of the court, Chief Justice Cole said: 
 
 "Because of my official association with Chief Justice Dixon for the 
 entire period he occupied a seat on the bench, my brethren think I 
 should make the response of the court to the memorial of the bar which 
 has been presented. I need not say that the court receives this me- 
 morial with a feeling of deep sensibility and sorrow. The members of 
 the court, as doubtless many of the bar, entertained for Judge Dixon 
 the afifection of a brother. He held that relation in our hearts and 
 thoughts, consequently a personal grief mingles with the sense of the 
 loss the public has sustained in his death. It is eminently proper that 
 Judge Dixon's name and memory should be honored in this tribunal 
 where he occupied the position of presiding judge for fifteen years, and 
 until he voluntarily resigned the office, elevating the character of the 
 court and giving luster to it by the preeminent ability and great learn- 
 ing which he exhibited in the performance of his official duties. It is 
 fitting, too, that we should here pay to him our tribute of respect; 
 that we should give free and full expression to the feelings of love and 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 131 
 
 affection for him as a man, a friend, a judge, which we cherish in our 
 hearts. It is true, some years since. Judge Dixon withdrew from the 
 practice of the law in this state, and resumed it elsewhere, where the 
 climate was more favorable to his health; but he always regarded him- 
 self as a member of the bar of this state. He never fully severed his 
 connection with it. He considered this state as his home. It was here 
 his family resided; and his dearest hopes and warmest friendships were 
 associated with our people and the state. If alive he might well claim 
 kindred with our bar and have that claim allowed; and surely his fame 
 as a jurist belongs to Wisconsin. It will ever be cherished by our bar 
 and people as a most priceless possession. 
 
 "I need not dwell in this presence upon the personal characteristics 
 of Judge Dixon. You know him well by long acquaintance. You 
 know how he drew men to him and made them his own by his genial, 
 friendly, and kindly manner, by his large heart, so tender and true, and 
 by his manly, noble personal qualities. And yet he made no effort to 
 secure friends. He never courted pubHc favor or public applause, but 
 he attracted men to him by his open, manly conduct and the innate 
 goodness and kindness of his heart and disposition. Such was Judge 
 Dixon as a man, companion, and friend, noble and true and just in his 
 relations to society and to our profession, worthy of all love, affection, 
 and admiration which we felt for him while alive, and which we now feel 
 for him since he has passed from us to be seen no more. 
 
 "I had not much acquaintance with Judge Dixon when he was 
 appointed chief justice of this court in 1859. I had met him only a few 
 times, but he had not appeared before the court to argue any cases while 
 I had been on the bench. At the time of his appointment as chief 
 justice he was a young man and comparatively unknown throughout 
 the state as a lawyer and jurist. There was an impression, how general 
 I will not undertake to say, that he had not sufihcient professional train- 
 ing and experience to fully qualify him for the high and responsible 
 office O'f chief justice when appointed; but a brief trial amply vindicated 
 the wisdom of his appointment. If he was not at the time of appoint- 
 ment a learned and profound lawyer, he was thoroughly imbued with 
 
133 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the principles and rules of the common law and of equity jurisprudence. 
 He had a discriminating mind and retentive memory, was gifted with 
 robust common sense as well as a nice sense of justice and right. He 
 was most laborious in his investigation of causes, and failed not to read 
 the law found in the books which had a bearing upon the case which he 
 was called upon to decide. He rapidly acquired and appropriated legal 
 learning as found in the writings of the authors of our profession. He 
 illustrated and enriched his opinions by the result of his reading and 
 research. He was endowed naturally with remarkable logical powers, 
 and all of his opinions are marked by great closeness and strength of 
 reasoning and clearness of expression. Massiveness and compactness of 
 logic characterized his most important decisions. That he was firm 
 and fearless in adhering to his convictions was singularly illustrated in 
 1859, when, contrary to the views of the political party with which he 
 acted, he fearlessly held to the opinion that the supreme court of the 
 United States had the right, under its appellate jurisdiction, to review 
 the judgment of this court which discharged on a writ of habeas corpus 
 a citizen arrested for the violation of the fugitive slave law, so ready 
 v/as he to disregard party ties and all party associations when they came 
 in conflict with what he deemed to be the law. He came to this bench 
 at a most critical period in the history of the court. Questions of con- 
 stitutional law involving the objects, the limit, and rule of taxation under 
 our constitution; of the vahdity of municipal indebtedness; of the lia- 
 bility of railroad corporations for injuries to person and property result- 
 ing from the negligence of their employes; of the relation of the state 
 and federal judiciary; soon to be followed by the supremely important 
 questions growing out of the rebellion, such as the power of the Presi- 
 dent to suspend by proclamation the writ of habeas corpus; the validity 
 of the law authorizing the draft, and one permitting the soldiers in the 
 field to exercise the elective franchise; the validity of the legal tender 
 act and of the bounty laws; the right of Congress to tax the process 
 of state courts, and other kindred questions of transcendent interest to 
 the people and nation, were before the court or soon to come before 
 the court for decision. Judge Dixon, in the disposition of these cases. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 133 
 
 played no subordinate part. It was not his nature to rely on others in 
 the examination and decision of causes. He must form his own opinions 
 by his own study and research, master the facts of the case and the 
 principles of law applicable to it for himself, think his way through and 
 over whatever obstacles and difficulties were presented, by the light of 
 his own judgment and understanding; and he always did so. He exer- 
 cised great influence in all decisions made by the court. He has left 
 an enduring record and monument of his labor and services in our 
 reports, and without doing injustice to others I think I may say that 
 whatever value or authority these reports may have in the estimate of 
 the profession is largely due to his opinions pubhshed in them. What 
 may be the value of any of these decisions as real contributions to the 
 science of the law must abide the judgment of those who will come 
 after us. I cannot but think that some of the opinions of Chief Justice 
 Dixon will, while the state has a jurisprudence, be recurred to as mas- 
 terly discussions of the questions before him. This is not the time or 
 the occasion to specify any particular opinions, but I honestly believe 
 that some of them are worthy of a place among the ablest judicial dis- 
 cussions. 
 
 "\A'hen standing at his open grave in yonder cemetery on the after- 
 noon of his burial — that afternoon so calm and bright, with an air of 
 vernal mildness rather than the chill of winter, and as the setting sun 
 rapidly sinking in the west threw a flood of light and glory above and 
 around the spot where we stood, with not a cloud to be seen in the 
 sky, the whole scene in nature seemed to me a fitting emblem of the 
 life of our friend and brother and of its close. Everything which the eye 
 rested upon was serene and pure, beautiful and glorious; and so was 
 his life as he dwelt and labored among us, and so it closed, leaving a 
 name illustrious with professional fame and honor." 
 
 Soon after Dixon became chief justice Byron Paine became a mem- 
 ber of the court by election to succeed Judge Abram D. Smith. Judge 
 Paine qualified June 21, 1859, and served until November 15, i^ 
 when he resigned to enter the military service. 
 9 
 
134 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 BYRON PAINE.* 
 
 The salient features in the life of Judge Byron Paine may be briefly 
 noted — that while still a young man, with his own future yet to care 
 for, he faced an uncertain popular opinion and made a brave and bril- 
 liant fight for a cause that he believed to be right, in a case that has be- 
 come historic; and that as a judge upon a high bench he showed such 
 noble qualities of mind and conscience that no one can say to what 
 promotion he might not have risen had not death laid him low almost 
 in the beginning of his career. His memory has been guarded with 
 reverent affection in the commonwealth he served, and no son of Wis- 
 consin has a more honored place in her pantheon of great men than 
 this brave advocate, obedient soldier, and unblemished judge. 
 
 The outspoken fearlessness which was one of the features of Judge 
 Paine's character, was after the pattern of the still more outspoken 
 courage of his father, while the moderation with which his views were 
 urged upon others, and the calmness with which he could meet opposi- 
 tion, were something of which his father had small possession. The 
 latter had spent the early years of his life in the east, had entered upon 
 the practice of the law, and made his home at Painesville, Ohio, where 
 Byron was born on October lo, 1827. James H. Paine had become 
 filled with the belief that human slavery was a wrong in the sight of 
 God, as it should be a crime in the laws of man, and as the secreting of 
 a moral view was one of the things impossible to his nature, he vehe- 
 mently and publicly denounced the involuntary servitude system of the 
 south. It seems curious that a time should ever have been when one 
 could be too strong an abolitionist for the western reserve of northern 
 Ohio — the region from whence Joshua R. Giddings and B. F. ^^'ade 
 were afterwards sent to fight slavery in the halls of Congress — yet such 
 the elder Paine soon found himself to be; and because of his unpopular 
 
 *J. H. Kennedy is the author of this sketch of Judge Paine, -yvhich appears here 
 by permission of William W. Williams, editor of the Magazine of Western History, 
 in the sixth volume of which (pages 183-196) it was originally published. The editor 
 of this work is responsible for the notes appended to this sketch. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 135 
 
 course in this regard he lost practice, and was led to seek a home in the 
 far west. In 1847 he removed to Milwaukee, where he followed the 
 practice of his profession until his death in 1879. He continued his 
 vehement denunciation pf slavery, and it was through his example and 
 teaching that his son was led to an early advocacy of freedom for all 
 men, and finally to the charge of a case from which his professional 
 career may be said to have commenced. 
 
 Byron's education was received in an academy at Painesville, and 
 he accompanied his father to Milwaukee, where he entered upon the 
 study of law, and was soon afterwards admitted to practice. Possessed 
 of an unusual literary faculty, he spent some portion of his time in these 
 early days in work upon the Free Democrat, one of the earliest aboli- 
 tion newspapers in the west. He also served as a clerk in the Wisconsin 
 senate for one term. 
 
 In the first years of practice the young man was known to his asso- 
 ciates as faithful and capable, but not inclined to push himself into 
 notice, nor disposed to seek for business. He was moved more by his 
 convictions than by his ambitions, and as likely to defend a cause be- 
 cause he believed it to be right as to take a case because it might be of 
 profit. But he possessed all the capabilities for a successful advocate 
 and a great lawyer, which should only be awakened and recognized 
 when some fitting opportunity should present itself. 
 
 The occasion came, and the man was ready. The Glover rescue case, 
 the trials of Sherman M. Booth that grew out of it, are a part of the 
 history of Wisconsin, and a famihar tale to the older residents thereof; 
 but some explanatory details will be necessary for a fuU understanding 
 of Mr. Paine's connection therewith. Mr. Booth was one of the most 
 outspoken of the opponents of slavery, and had made a name for himself 
 in that field of labor before coming to Wisconsin in 1847, to take charge 
 of the American Freeman, an abolition newspaper pubhshed under the 
 auspices of the State Liberty Pubhshing Association. Joshua Glover, 
 a black man, an alleged fugitive from an owner in Missouri, was labor- 
 ing in a mih at Racine, in the spring of 1854, when the owner, one Gar- 
 land, suddenly made his appearance and caused Glover's arrest. He 
 
136 HISTORY OF THE BENXH AND BAR OF WISCOXSIN. 
 
 \Yas hurriedly carried to ^Milwaukee, which was reached on ]\Iarch 11. 
 Word was immediately conveyed to Mr. Booth by sympathizers of 
 Glover, and he made such investigation as led to the discovery that the 
 slave was then in Milwaukee jail, bruised and bloody, and carrying 
 marks of severe treatment at the hands of his captors. When the facts 
 became known through the efforts of Mr. Booth and others, the excite- 
 ment reached fever heat, a public mass meeting was held, a vigilance 
 committee of twenty-five appointed, and resolutions adopted declaratory 
 of a purpose to aid the kidnapped slave by all means within their power. 
 The result was, that before many hours had passed, a rush of many 
 strong-armed men was made upon the jail, the negro taken out, placed 
 in a wagon, and hurriedly driven out of the city. 
 
 Several days later Mr. Booth, as leader of the rescuing party, was 
 arrested, and after a preliminary hearing, was held to bail in the sum 
 of two thousand dollars, which was promptly furnished. Suit was also 
 commenced against him for damages to the amount of two thousand 
 dollars, the value of the escaped slave. 
 
 It would be foreign to the purpose of this sketch to follow these 
 various suits, and all that grew out of them, to the end, and we need 
 touch only upon such points as involve the presence and services of 
 Byron Paine. The rescue of Glover and the arrest of Booth had at- 
 tracted attention from the whole country, and had I\Ir. Booth desired, 
 some of the ablest and most eminent anti-slavery lawyers of the north 
 would have appeared in his behalf, but it was his choice that the young, 
 and as yet almost unknown barrister who had been his associate and 
 friend, should take up the weapon in his behalf. 
 
 yir. Paine threw himself into the case with all the earnestness of a 
 deep nature that had found an occupation where desire and conscience 
 could work together. The defense of his client as he presented it to the 
 various courts before which he appeared was masterly, original, and full 
 of profound logic. In illustration of one curious phase of American 
 politics at that date, it may be noted that this earnest abolitionist, in 
 the defense of another of like belief who had violated the fugitive slave 
 law in the rescue of a slave who had been taken under the forms of that 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 137 
 
 law, stood upon the ground of ultra state rights, and upon that line was 
 fully abreast of Calhoun and his associates of the extreme south. And 
 it was upon that ground that his defense was made — that the sovereign 
 state of Wisconsin was so supreme within her own moral and legal 
 responsibility that the legislators of the United States could not com- 
 pel her citizens to surrender a slave who was such under the laws of 
 another state. That one man should have held this view can cause no 
 surprise, but that he should have caused the supreme court of Wisconsin 
 to declare that his idea was good law, proves the logical character of his 
 plea, and the eloquence and force of his argument. Another curious 
 thing to be noted is that Wisconsin, from the first one of the strongest 
 anti-slavery states, had a marked leaning toward states' rights doctrines, 
 and that just before the war the republican party inclined in that direc- 
 tion, while the democratic was in the opposite. This idea was soon 
 abandoned when the war showed the north what it meant when reduced 
 to practical operation. 
 
 The case was carried into the supreme court in May. The com- 
 plaint against Booth was that he had violated the seventh section of 
 the fugitive slave act of 1850 by aiding in the rescue of Glover. After 
 giving bail Booth had been surrendered and sued out a writ of habeas 
 corpus to be released, chiefly on the ground of the unconstitutionality 
 of the act. The hearing was set for the 29th, and it was upon this 
 occasion that the young barrister made the argument that gave him 
 fame and honor, and was the stepping-stone to high judicial honors in 
 the future. 
 
 His speech was long, profound, and full of many evidences of deep 
 study and earnest thought. It is regretted that only a few isolated quo- 
 tations, as evidence of his method of thought and speech, can be given 
 in this connection. In opening he said:* 
 
 *The argument was made before Judge A. D. Smith, a justice of the supreme 
 court, May 29 and 30, 1854. Charles K. Watkins appeared with Mr. Paine for the 
 relator, and J. R. Sharpstein, United States district attorney, for the marshal. It is 
 said that Mr. Paine's services were rendered without compensation, and that at the 
 time his professional income was small. 
 
'-38 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 In arising to commence the investigation of this case, I do so with 
 those feehngs of strong embarrassment which must naturally result from 
 knowing that I undertake to deal with a question more important than 
 any that could be presented to a judicial tribunal. It is a question in 
 which, according to my judgment, are involved, not the liberties of Mr. 
 Booth alone, but the liberties of the whole people. I am also noi un- 
 aware that it might involve a conflict between the judicial powers of the 
 state and federal government. Because the validity of a law of the 
 United States will be called in question here. A law in relation to a 
 subject that has lowered like a dark and gloomy cloud above our 
 political horizon, from which have blown those winds that have tossed 
 the public mind and heart in wild commotion, as the ocean is tossed by 
 the storms of heaven. A law in relation to a subject that stood like a 
 stumbling block in the way of the formation of our government, a 
 subject that has cursed us in the past, curses us in the present, and looms 
 up as our evil genius in the future, waiting to attend us to destruction. 
 I need not add that we are to call in question the validity of a law in 
 relation to American slavery. And, sir, we shall question its validity, 
 for the reason that Congress, in passing it, transcended its constitu- 
 tional power and encroached upon a right that belongs solely to the 
 states. And this is another reason that makes the question pregnant 
 with importance. For under our system, composed of many independ- 
 ent sovereignties, joined in one whole under a general government 
 which has certain delegated powers, any question involving a conflict 
 between the powers of the whole and of each sovereign part, must be of 
 vital interest. It should be approached with solemnity, with anxious 
 care, with moderation and forbearance. But, sir, in my judgment it 
 should be approached unshrinkingly. I am not one of those who believe 
 that the possibilities of such conflicts should be avoided by servile sub- 
 mission from the states. I am not one of those who believe that a state 
 should forbear to assert its rights, for fear that it may be questioned 
 elsewhere. I do not belong to that school, of late increasing among us, 
 which seems to teach that the states are to look up to the department of 
 federal government with all the submissive deference with which a serf 
 is to listen to the commands of his master. On the contrary, I belong 
 to the other, and as I believe, that true school, which has best studied 
 the theory of our institutions, and which holds that the true interests 
 and harmony and perpetuity of this Union are to be best promoted and 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 139 
 
 preserved by confining the general government strictly to the exercise 
 of those powers delegated to it by the constitution, and steadfastly re- 
 sisting all encroachments upon the rights of the states. We plant our- 
 selves upon the doctrine of the sovereignty of the states, over all mat- 
 ters except those which they have delegated to the general government 
 power to control. . . . 
 
 We stand, therefore, here to-day upon the doctrine of state rights, 
 though we do not attempt to deny that it is a doctrine surrounded by 
 difficulties — difficulties on both sides. As to how these difficulties are 
 to be avoided, different men give different answers. Those whose 
 minds incline them toward consolidation will answer that they 
 are to be avoided by absolute submission on the part of the 
 states. Those, on the other hand, who look with jealousy upon 
 the federal power, will say that they are to be avoided by 
 each carefully and scrupulously abstaining from encroachment upon 
 the rights of others. They might say, with Judge Story, that "the 
 part of true wisdom would seem to be to leave in every prac- 
 ticable direction, a wide if not an unmeasured distance between the 
 actual exercise of the sovereignty of each." Or they might, perhaps, 
 rather answer as one of the great political parties of the country which 
 has adopted the doctrines of the Virginia and Kentucky resolutions 
 which I have read, has answered, and say that they are to be avoided 
 by a strict construction of the constitution by all the agents and depart- 
 ments of the general government, and that it "is inexpedient and dan- 
 gerous for Congress to exercise doubtful constitutional powers." And 
 now, sir, I come to the application of the doctrines I have contended 
 for to this case. ... 
 
 The relator, Sherman M. Booth, was complained of under the 
 seventh section of the late act of Congress, commonly called the fugitive 
 slave law, for aiding in the escape of one Joshua Glover, from the cus- 
 tody of Deputy Marshal Cotton, Glover having been arrested as a fugi- 
 tive from labor. He was examined and held to bail. He was after- 
 wards surrendered, and sued out this writ to be released from imprison- 
 ment, chiefly for the alleged reason that the act of Congress is uncon- 
 stitutional and void. In appearing here, we feel that we have crossed 
 the threshold of our last refuge. We believe that the state courts 
 may protect us if they will. That by a wise and firm interposition of 
 their powers in behalf of the liberties of the people, they may present a 
 
I40 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 barrier between those liberties and that spirit of oppression that is abroad 
 in the land. That they may perform for us the kind office of the guard- 
 ian shaft, that, reared above our dwellings, points fearlessly to the 
 clouds, and receives upon itself, unscathed, the rattling thunders, that 
 otherwise had dashed us to pieces! And our hope in this respect is justi- 
 fied in a degree, by the fact that we stand here at all this day, and that 
 the United States officers are here to give account to this court concern- 
 ing our imprisonment. Because it has lately been declared here, by 
 those officers, that they would not condescend to render such account 
 at all, and that whenever they seized upon a citizen it was little better 
 than an impertinent interference on the part of the state tribunals to 
 inquire of them, "\\'hy do we so?" These doctrines fell upon the public 
 mind like strange and unheard of signs in heaven, filling it with horror 
 and alarm. And it is doubtless to the prompt and decided manifesta- 
 tion of that horror and alarm by the people, and to the resistance of our 
 state judiciary, that we are indebted for the fact that the United States 
 officers have receded from their position, and have appeared here to 
 render a reason to this court why they imprison us. And we believe 
 that the power of the court does not stop here, but that if satisfied that 
 the reason is insufficient, it may discharge from custody the citizen 
 whose liberty has been unjustly invaded, and thus afford a peaceful and 
 bloodless remedy for the dangers that impend over us. But if we fail 
 here, we can go no farther. Here is our "butt and very sea-mark of our 
 utmost sail!" If the people are driven unprotected from their state 
 courts, the cloud that will settle down upon them can be lifted only by 
 the dread ordeal of revolution, when, falling back upon their reserved 
 rights, amid scenes of violence and blood, they alter or abolish those 
 governments that have failed to answer the great ends for which all 
 governments are established. Since, therefore, the state is so great, we 
 beseech this court, as we believe it has every inclination to do, to listen 
 with attention to the reasons we may present, and with patience to- 
 wards the imperfect and perhaps tedious manner in which we may 
 present them, in order that, if possible, the last hope of liberty and the 
 people may not fail. 
 
 I shall urge the unconstitutionality of the fugitive slave act upon 
 three grounds: 
 
 First, that Congress had no power to legislate upon the subject at all. 
 
 Second, admitting such a power, the act is unconstitutional in pro- 
 
HISTORY OF THk BENCH AND BAR OF WISCONSIN. 141 
 
 viding that any person claimed as a fugitive may be reduced to a state 
 of slavery without a trial by jury. 
 
 Third, that it is unconstitutional because it vests the judicial power 
 of the United States in court commissioners contrary to the provisions 
 of the constitution. 
 
 There are doubtless other good grounds of objection to this act, 
 but I shall confine what I have to say to these three, believing that if we 
 fail upon these, there would be no hope of succeeding upon any. 
 
 In support of these propositions Mr. Paine proceeded with an array 
 of facts, authorities and legal deductions apparently unanswerable. In 
 speaking of the rights of the general government and the states he said: 
 
 Thus has it been with the federal and state governments. In setting 
 in. motion the vast machinery of the new system, each endeavoring to 
 accomplish those objects which pressed most forcibly upon its attention, 
 they have frequently encroached upon the rights and prerogatives of 
 each other. The encroachments have in some instances been rectified, 
 but in others they have been acquiesced in, and the boundary lines be- 
 tween the two systems have been made crooked. The subject we are 
 to consider here belongs to the latter class. And I fear this encroach- 
 ment has been acquiesced in more readily than it would otherwise have 
 •been because it was imagined that it concerned only the rights of a class 
 of people who were poor, persecuted, despised and outcast among us. 
 But the time has now come when it concerns the liberties of us all, white 
 as well as black, that these boundary lines should be re-examined, and 
 the respective rights of the federal and state powers in this matter 
 should be placed on their true basis. For the people are overshadowed 
 with clouds of prosecutions, swarming with pains and penalties as 
 numerous as the locusts which swarmed over Egypt; and it has become 
 of vital interest to them to know whether the power for these things 
 is really found in the constitution, or be nothing better than a bare- 
 faced usurpation. 
 
 In conclusion he made use of language that, uttered years before 
 the war of the slaveholders, seems in the light of after events to have 
 been almost prophetic: 
 
 We are accustomed to look upon our country as having already at- 
 tained a very great degree of power and importance. This is in a sense 
 
142 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 true. But we have only to travel forward for a century or two, at the 
 sober pace of reason, unassisted by the wings of imagination, in order to 
 behold it bestriding this continent like a Colossus — possessing a power 
 compared with which that it now possesses would be like the pigmy 
 compared with the giant. Emergencies will doubtless arise in the 
 course of its national existence that will call into being vast armies and 
 navies. And if the general government is und^f the control of the 
 slave power, these armies and navies will be under its control. And 
 who can doubt that that power is capable of conceiving the full purpose 
 of annihilating liberty through all these states, and extending over them 
 its own horrible institutions? AA^ho can doubt that after conceiving this 
 purpose it will carry it into execution by the iron arm of military power? 
 It will do this, not with the avowed purpose of overthrowing the consti- 
 tution, but pretending that it sanctions their sacrilegious design. , . 
 But let us hope that this destiny may not await us! That among 
 the inscrutable ways of Providence, some one may be opened by 
 which this cup will pass from our lips. Let us maintain to the last some 
 hope that liberty may not be entirely destroyed — that the cause of hu- 
 manity may not entirely fail. And though the clouds are gathering 
 faster and blacker above us, we are not altogether without reason for 
 such hope! For a number of years past there has been another re- 
 action going on in this country against the influence of the slave power-. 
 And though the tide has ebbed and flowed — though in the actual con- 
 flicts that power has retained possession of the battlefield, yet the reac- 
 tion against it has steadily increased and accumulated strength until the 
 present day. The freemen of the north who have long reposed in con- 
 scious strength, with a generous forbearance towards the wrongs and in- 
 sults of their deadly foe, have at last become aroused by provocations 
 that could not be borne. They are marshaling their hosts for the com- 
 ing conflict between the two great antagonistical elements, liberty and 
 slavery, that is to settle which shall finally fall before the other. The 
 trampling of the gathering hosts is already heard — the murmuring of 
 the rising storm is wafted upon every gale. The north is snapping 
 asunder the bands that have bound it in subjection to the slave power, 
 as Samson broke the withs of tow! The last link that binds it is the 
 judicial sanction that power has received! Let that be broken and the 
 people are free! Can it not be broken? Can this great want of the pub- 
 lic heart not be satisfied? Can we not have one decision in all this land 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 143 
 
 that shall vindicate liberty and law? I could almost believe that the 
 angels in heaven would bend forward over its battlements in eagerness 
 to hear such a decision ! That unborn generations would anticipate their 
 time of life and listen from the great womb of futurity to the announce- 
 ment of such a decision. 
 
 But whether these things would be so or not, this I know, that it 
 would be received by all the friends of humanity and law throughout 
 this land with such a thrill of heartfelt joy as was never felt by a people 
 before. Their hearts would be filled with new hopes — hopes that this 
 would be but the beginning of a more glorious end; hopes that there 
 is to be a return to the true principles and wise policy of our fathers; 
 that the constitution as it stands is to be vindicated and maintained; 
 that courts are to be places where liberty is favored and human rights 
 protected, and not where judges are to exercise their ingenuity to evade 
 and overturn the great safeguards of the constitution and trample on 
 the liberties of the people! Their hearts would be filled with new and 
 glorious hopes, that this temple of liberty, which our fathers builded, is 
 to be purified; that the trafifickers in the blood and bones of immortal 
 men shall be driven from its sacred precincts; and that with a broad 
 continent for its broad foundation, and the blue heaven that bends above 
 us for its arch, it shall be inherited by one great band of brothers, with 
 no spot where the darkness of bondage shall remain, but that all over, 
 from ocean to ocean, and from the eternal ice mountains of the north 
 to the burning zone, it shall be illuminated by the light of liberty, as the 
 celestial city is lighted by the glory of God. 
 
 The court, upon the conclusion of the arguments, agreed to Mr. 
 Paine's construction of the law, and ordered the release of Mr. Booth; 
 and, although he was afterwards convicted -under the rulings of the 
 supreme court of the United States, which held an opposite view, the 
 masterly character of the young lawyer's defense was none the less ad- 
 mired and its wonderful strength admitted. Quoting the voice and ver- 
 dict of contemporary public opinion, we are told that "he gave untiring 
 labor, earnest zeal, and magnificent ability to the advocacy of his views, 
 and made an argument which could not be answered upon reason, 
 although it might be choked by weight of authority. It delighted his 
 friends, it carried with him the court, it captivated the popular mind. 
 
144 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 It secured judgment for his cause, and for himself the respect of his pro- 
 fession, and the lasting favor of the people, among whom it was ex- 
 tensively read. And although his opinions were very distasteful to 
 many, they made him no enemies. His sincerity, his moderation, his 
 fairness and evident devotion to truth disarmed opposition of personal 
 bitterness. He obtained the confidence of his political antagonists, as 
 well as the enthusiastic admiration of his supporters. He made no 
 efifort to secure personal advantage from his triumph, but retired to the 
 quiet practice of his profession unafifected by the praises heaped upon 
 him. He seemed not to know how much he had done for himself." 
 
 In this connection, and as giving support and endorsement of the 
 highest character to what has gone before, I cannot refrain from quoting 
 the comments upon his conduct of this case, made by Judge E. G. Ryan, 
 when the resolutions in honor of Judge Paine's memory were presented 
 to the supreme court in January, 1871 : "When I first met Judge Paine 
 at the bar he was still a young man, but he had already given unmistak- 
 able evidence of the power that was within him. The first opportunity 
 I had of forming an estimate of his high ability was in the famous case 
 under the fugitive slave act in 1854 and 1855. He was employed for the 
 defendant, I for the United States. We both brought to the case not only 
 ordinary professional zeal but all the prejudices of our lives. He was a 
 frank and manly abolitionist; I was as decidedly what was called 'pro- 
 slavery.' We were both thoroughly in earnest. The case was attended 
 with great popular excitement. It was one of many unutterable sounds of 
 troubled elements, foreboding the great storm which has since passed 
 over the country. He died undoubtedly believing that the results had 
 justified his views. I shall probably die believing that they have justified 
 mine. I thought him a fanatic; he probably thought me one; possibly we 
 both were. But in all that antagonism and excitement I could not fail to 
 see, I could not fail to do justice to the integrity of his motives, or to the 
 ability of his conduct. I then conceived an estimate of the beauty of his 
 character, and of his great professional ability which has never since 
 changed, and which will probably be among the last and dearest mem- 
 ories of my professional life. The printed brief which he submitted to 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 14S 
 
 this court in that case was the ablest argument I ever met against the 
 constitutionahty of the fugitive slave act. It is a professional loss that 
 it is not printed at length in the report of the case. It established, in my 
 mind, his great learning and resources as a cultivated lawyer. And yet I 
 remember well the modesty of his demeanor, accompanying such high 
 ability in so young a man. I recall, too, his singularly able manage- 
 ment of the defense, on the trial of the indictment in the federal court. 
 He disputed every inch of ground with signal address, and with all the 
 hearty ability of a man who believed that he was in the right. I shall 
 never forget his closing argument. It has been my lot, during a long 
 professional life, to encounter many' able advocates, but I never listened 
 to an argument before a jury more perfect for the case than that was. 
 No man, not thoroughly able, and not thoroughly in earnest, could have 
 made it. The court adjourned just as it was finished, and I remember 
 well the noisy congratulations that were offered to the modest young 
 advocate. He merited far more discriminating praise. It established 
 his reputation as an orator and advocate of a very high order."* 
 
 The reputation thus generously described had placed the young 
 lawyer so near the front rank of his profession that when Charles E. 
 Jenkins resigned the ofhce of county judge of Milwaukee county, in 
 1856, Governor Bashford appointed Mr. Paine to the vacancy. The 
 term expired in 1857, and on the day before the election of judge he was 
 nominated for the place by a convention hastily assembled, and to the 
 surprise of many, and especially of himself, was elected by three thou- 
 sand majority over the regular democratic nominee; and that, too, in a 
 county that usually gave a democratic majority of over four thousand. 
 So faithfully and intelligently were the duties of this office fulfihed that 
 in 1859, when only thirty-two years of age, he was made a member of 
 the supreme court of Wisconsin — a position that, with one interval of. 
 patriotic devotion to his country in another field, he held until his death. 
 
 *Charles Sumner, the great champion of the anti-slavery cause, wrote Mr. Paine 
 pronouncing his argument admirable. "You touch the question to the quick," said 
 he. "For a long time I have seen it as you do. I congratulate you, my dear sir, 
 upon your magnificent effort, which does honor not only to your state but to the 
 country. That argument will live in the history of this controversy." 
 
146 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Judge Paine remained upon the bench in the discharge of his duties 
 until the call for more troops issued by the President in July, 1864, 
 when he put into effect a long deferred desire, which had been kept from 
 execution heretofore only because of his wish to aid his country by all 
 means within his power in the station he then held. He resigned his 
 judgeship and enlisted in the Union army, receiving, on August loth, 
 the appointment of heutenant-colonel of the forty-third Wisconsin 
 regiment, which had been organized pursuant to the above call. The 
 regiment left the state on October loth, with orders to proceed to 
 Nashville, Tennessee. Before its departure from its Wisconsin camp 
 Judge Paine received from his associates of the Milwaukee and Madison 
 bars a token of the love and appreciation in which he was held in the 
 shape of an elegant sword. In a letter accompanying it, written by 
 Hon. Winfield Smith, attorney-general of Wisconsin, in behalf of the 
 donors, these appreciative words were used: "In behalf of the gentle- 
 men whose names are communicated to you, I beg that you will accept, 
 in token of our personal regard for yourself, of our interest in your 
 welfare, of our hearty wishes for your future success and happiness, 
 and, not least, of our approbation of the cause upon which you have 
 entered, the emblems of your new profession which we present with 
 this note." The response was conveyed in a letter full of patriotism and 
 fraternal farewell to the friends who had thus remembered him. In con- 
 clusion he said: "Looking upon the contest in this light, I have 
 watched it with a feeling so intense that it has often unfitted me for the 
 proper discharge of the duties of the position I have just relinquished. 
 And when the last call was made by the President, the aspect of affairs 
 seemed to me so doubtful and full of gloom that I could not but feel it 
 my duty to follow where so many noble men had gone before me, and 
 help to fill up those ranks upon which our fate now depends. 
 
 "But so far as the testimonial with which you have presented me 
 has reference to the duties of my new position, I must say I accept it 
 with humility and great distrust of my worthiness to receive it. I can 
 make no promise as to how it shall be used. I can only say with a full 
 sense of the responsibility belonging to a military command in time of 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 147 
 
 war, I desire with my whole heart to discharge properly what duties 
 may devolve on me." 
 
 The forty-third, on arrival at Nashville, proceeded to Johnsonville, 
 on the Tennessee river, where a large and important depot of supplies 
 needed guarding. At that point Colonel Cobb, who had command of 
 the regiment, was appointed post commandant, and the control of the 
 forty-third fell entirely upon Lieutenant-Colonel Paine. The stay at 
 Johnsonville was prolonged to November 30, during which time some 
 sharp salutes of artillery were received from the enemy across the river. 
 The force was moved on the 30th through an unbroken wilderness to 
 Clarksville, on the Cumberland river, which was reached on December 
 4, where it was stationed until the 28th, when it was moved up the 
 Cumberland, reaching Nashville on the evening of the same day. On 
 January i the regiment was again moved to Decherd, Tennessee, where 
 six companies went into camp, while the remaining four were detailed to 
 guard the Elk river bridge. The command remained on provost and 
 guard duty on the Nashville & Chattanooga railroad until June, 1865, 
 when it was marched to Nashvihe and mustered out on the 24th. 
 Colonel Paine had resigned his command some twenty days before this 
 ■ — but not until the war was ended and declared — because of the death of 
 an elder brother. Of the record he made during this brief season of war, 
 no better testimony can be found than that contained in that official 
 publication, Wisconsin in the War (page 866), which says: "He was in 
 command during most of their service. Colonel Cobb being engaged on 
 detached duty. The soldiers were deeply affected when it was announced 
 that he was to leave. He united kindness and firmness in discipline. It 
 is the unanimous testimony of the officers of the regiment that never 
 did the humblest soldier, however great his delinquency, receive from 
 Lieutenant-Colonel Paine an unkind or ungentlemanly word. Without 
 ostentation and with rare singleness of purpose, he devoted himself to 
 the welfare of his regiment and the good of the service. Conceding 
 nothing to ambition, nothing to any personal consideration, he moved 
 straight where duty led, undeterred by censure and unmoved by ap- 
 
148 HISTORY OF THE BENCH AXD BAR OF WISCOXSIX. 
 
 plause, anxious only to be right. Rarely has the service been blessed 
 with an officer of so pure morals and so sincere a purpose." 
 
 With his return to vrays of peace, Judge Paine again settled himself 
 at ^Milwaukee, and resumed the practice of law. \\'hile still preserving 
 the quiet tenor of his way and attending to such business as he had in 
 hand, he was enabled at this period to perform one service to the race 
 to which he had given such patient and courageous aid, which illustrates 
 his love of liberty and his desire to see equal right done to all men. In 
 1865, one Gillespie, a colored man Hving in Milwaukee, had offered his 
 vote at a regular election, which had been refused. Judge Paine became 
 once more the champion of the black man, and carried the matter into 
 the courts. He based his right for such vote upon an election held in 
 1849. when a democratic legislature had submitted to a vote of the 
 people whether or not "equal suffrage to colored people" should be 
 granted. The result was a total of 5.265 for and 4,075 against. He 
 claimed that the intent of the act under which the vote was taken was 
 that the proposition must receive a majority of the votes cast on that 
 question rather than of those cast in the general election — a construc- 
 tion far different from that previously accepted. The fight was carried 
 into the supreme court, where judge Paine argued with such powerful 
 and eloquent logic that the court sustained his opinion, and the negroes 
 from thenceforth exercised the right of suffrage in that state. 
 
 Judge Jason Downer, of ^Milwaukee, who had been appointed to the 
 supreme bench in 1864, on the resignation of Judge Paine, decided In 
 turn to retire to private life, which purpose he carried into effect on 
 September 11, 1867. The most appropriate choice of a successor was 
 made when Judge Paine was asked by the governor to return to his old 
 duties and responsibilities. He was re-elected in 1870. and was still 
 an occupant of the bench at the time of his death. The only other public 
 position held by him was that of professor of the law department of 
 the state university, from 1868 to the close of his life. The universitv 
 conferred upon him the degree of LL. D. in 1869. 
 
 It was while still short of the prime of life, with pow-ers of mind that 
 grew with each passing day and opportunity of exercise, and that had 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 149 
 
 not yet expanded to the full strength that age and experience would 
 have given, and with a fame gaining new holds perpetually upon the love 
 and confidence of the people, that Byron Paine was unexpectedly called 
 upon to lay earthly cares and honors aside and go into the unknown 
 future. He was attacked by erysipelas, which at first presaged no fatal 
 ending, but after some weeks of pain and increasing danger the malady 
 had reached such proportions that no hope was left. He died on Jan- 
 uary 13, 1871, at his home in Madison, leaving a mourning wife and four 
 sons. 
 
 The announcement of his death was received with a degree of sor- 
 row and sympathy not often accorded men filling even more responsible 
 positions, while everywhere the feeling was apparent that one was gone 
 who could be illy spared. Governor Fairchild in transmitting to the 
 legislature a special message announcing his death, voiced the popular 
 opinion when he said: "The loss of such a man to the state is almost 
 irreparable. His eminent ability and valuable services as a jurist; his 
 stainless integrity and devotion to duty as a judge, and his unblem- 
 ished private life, endeared him to the people, and will cause him to be 
 long remembered as one of the best men of the time in the state." The 
 legislature adopted a joint resolution in honor of his memory, and 
 immediately adjourned. Like action was taken by the bar of Milwau- 
 kee, by that of the state supreme court, and by other associations, and 
 no tribute of public honor usual to such occasions was omitted. The 
 feeling in his home city, Milwaukee, was expressed by the leading 
 editorial utterances of the Sentinel: "On the bench his great ability has 
 been conspicuous. Not less manifest were his even impartiality and 
 perfect uprightness. His logical mind mastered the principles of legal 
 science, while his industry left no precedents unexplored. It disparages 
 no one to say that he, of all judges in Wisconsin courts, possessed in 
 greatest measure the eminent judicial qualities. No temptation how- 
 ever attractive could swerve him, no personal motive draw him from the 
 line where duty led him. We think no man ever imagined that it would 
 be worth while to try Judge Paine's integrity. . . . The soil will 
 cover the bodily form of Byron Paine, and hide forever all that is mortal 
 10 
 
 & 
 
ISO HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 of that noblest work of God. His works and his good example shall 
 live, and his memory will be green until all who know him follow him." 
 The writer of this sketch has conversed with many of the leading 
 members of the Wisconsin bar concerning the life work and personal 
 character of Judge Paine, and the unanimity with which they have 
 recognized his purity, power and courage sets upon his career a stamp 
 of approval that nothing can remove. The general verdict of all may 
 be profitably summed up in the language used by one — Hon. Winfield 
 Smith — who was an intimate personal acquaintance of the dead jurist, 
 and had means of knowing him not open to many of his associates. "As 
 a young man," said he, "Judge Paine was simple, almost rustic, in ap- 
 pearance and manners. His father and brother were more so, but Byron 
 had a natural refinement which modified his appearance and intellect 
 more and more as he grew older, and distinguished him conspicuously 
 from the other male members of his family. He was about five feet ten 
 inches in height, with solid frame and rugged features, hale, hearty, of 
 ruddy countenance, light hair, massive forehead, of a most kind heart, 
 pleasant temper and cheerful disposition. The logical quality was the 
 promising feature of his intellect. The straightforwardness of his argu- 
 ment was its chief force, and the perfect integrity which ennobled his 
 moral nature was also delightful to distingush in his mental operations. 
 He was an honest reasoner, and the strength of his faculties was such 
 that no one who grappled with him in discussion ever afterwards under- 
 rated them. He was supposed by some lawyers at the outset of his 
 judicial career to rely exclusively upon his own arguments, and was 
 derided as too disrespectful of authority; but the injustice of this cen- 
 sure became, before long, apparent. In truth, Judge Paine was discov- 
 ered by those who had to do with him to have a memory as remark- 
 able as his power of logic; and it has been my good fortune to hear him 
 quotethe names and the facts of the individual cases which he had discov- 
 ered, studied and rehed upon, in cases decided by him more than a year 
 previous. It seemed as if he never forgot the facts or the points decided 
 in any case he once perused. His mind seemed continuously to grow 
 and increase in strength, and prominent and able as his intellect shone 
 
HISTORY OF THE BENCH AND. BAR OF WISCONSIN. 151 
 
 before the bar of this state at the time of his death, no one could doubt 
 that, had he Hved to the age which his splendid physique would have 
 seemed to give him title, he would have grown to be one of the greatest 
 of American judges. He was free from passion and prejudice beyond 
 most men, and to him candor and simple fairness were innate. He was 
 bound by no shackles which he needed to throw ofif, and his ^yhole vigor 
 could be readily given to the mere intellectual disposition of the judicial 
 question before him for solution. As soon as he came to be known to 
 the members of the state bar, there arose for him an esteem which con- 
 tinually increased. He had a kind heart, which displayed itself in un- 
 broken amiability and courtesy. The strenuous discussions which he 
 sometimes had with others, even among the colleagues on the bench, 
 upon legal questions before them for decision, were purely of an intel- 
 lectual character, and were so conducted as to enhance rather than di- 
 minish their mutual regard. It seemed impossible that he could have an 
 enemy, and it was impossible that he should be the enemy of any man. 
 He was not ruled by excessive passions or desires, and while clear in his 
 views, while his opinions of right and wrong were clearly defined, while 
 he was practical and, therefore, earnest, zealous when the consideration 
 of great matters aroused him, yet, if thus warmed by the fire of patriot- 
 ism, or by his hostility to slavery, he seemed never to be wrought up to 
 the point of personal bitterness; and the ardor with which he discussed 
 these questions seemed to leave behind no trace of malice." 
 
 The belief held by some that Judge Paine depended too little upon 
 precedent and had no great respect for the opinions of jurists before his 
 time, seems to be effectually disposed of by a consideration of his actual 
 course in that regard. No man was more capable of understanding 
 him as a jurist, or in describing his peculiar bias of mind as a thinker, 
 or his course of action in the administration of the law, than Justice 
 Cole, who sat upon the bench by his side, and has embalmed his 
 estimate in the legal history of the state. In that memorial he has 
 said: "The question as to Judge Paine's eminent qualifications and 
 fitness for this position is settled finally — conclusively put to rest — by 
 the published decisions of the supreme court. These will abundantly 
 
152 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 vindicate, it is believed, so long as they exist, his reputation and char- 
 acter as an able, independent and incorruptible judge. Causes of great 
 difficulty, magnitude and importance have come before the court while 
 he was upon the bench, have been determined and have passed into 
 judgments. The record is therefore made up; so far as he is concerned 
 it can not be changed; and his judicial fame and merit may rest upon it 
 as it is. His friends should be willing, as they doubtless are willing, 
 to let his published opinions decide the matter. Do not these opinions 
 show patient and careful examination; laborious research and investiga- 
 tion; a proper deference to authority; just discrimination of adjudged 
 cases; a clear and firm grip of sound principles? Do they not show 
 that he at least sought to decide causes according to the well estab- 
 lished rules and principles of law, impartially, justly, without regard to 
 person or party or any unworthy consideration? That he made mis- 
 takes and sometimes fell into error is no more than saying that he had 
 the infirmity of our common human nature. It is impossible to get a 
 just idea of his strength and ability as a judge from any one of these 
 opinions. Those upon the true limits and principles of taxation and 
 upon questions of constitutional law seemed most fully to call forth the 
 resources, as they taxed most severely the powers, of his mind. Many 
 of his opinions might be cited as fine specimens of judicial reasoning, 
 and clear, persuasive argument. The remark was sometimes made that 
 he was too little inclined to follow in the beaten path of the law — to 
 stand super antiquas vias. If by this was implied that he had not such 
 a blind reverence for authorities that he dare not question an unsound 
 decision which had the support of a great name, or any number of them, 
 the remark was undoubtedly just. He certainly had but little idolatry 
 for mere precedents, as such, which violated correct principles. His 
 mind was critical, but not revolutionary. He laid no violent hands upon 
 the great systems of equity and common law jurisprudence which the 
 great sages of the past have left us. But he realized that those systems, 
 however wise and excellent, were still not perfect. They will bear im- 
 provement, and must at times be modified to adapt them to the wants 
 of a highly refined society, and a new condition of things. What wise 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 153 
 
 jurist thinks otherwise? He also had a just appreciation of the respon- 
 sibiHties of his office. He knew that an independent, pure and intelli- 
 gent judiciary was a sheet anchor of our institutions; and, as far as he 
 could, he labored to render it all that, in this state. No one will say 
 that the fountains of justice were polluted by him." 
 
 In his personal character. Judge Paine was frank, fearless, sympa- 
 thetic and true. His life was stainless; and united to his great ability 
 was a wai-m affection for those near him or dependent upon him. He 
 was possessed of rare culture, read the German as readily as the English, 
 and in a time of leisure accomplished the translation of a German poem 
 in a manner showing not only a close knowledge of the German tongue 
 but the possession of the poetic faculty in no mean degree. He read 
 much outside of the books of his profession, and the judicial quality in 
 his character led him to believe that there were two sides to a question, 
 and caused him to look at the other side. This course led him to doubt, 
 in spiritual matters, much that those about him believed, but never to 
 scoff at or deride a faith that was not possessed by him. He was fond 
 of nature and of outdoor sports, and with gun in hand spent many hours 
 of leisure in the woods about Madison or Milwaukee. His life as a 
 unit, was wholesome, true, high-minded, and given more to the service 
 of others than the advancement of himself. There is no lack of men 
 who can lay claim to many of the high and noble qualities possessed by 
 Byron Paine, but there are few who hold them in so bountiful a degree, 
 and in whom can be found so little that friendship could condemn or 
 love desire might be cast out. 
 
 The vacancy caused by Judge Paine's resignation was filled by the 
 appointment of Jason Downer, who served from November 15, 1864, 
 until September 11, 1867, when he resigned, and was succeeded by 
 Judge Paine, who was appointed by Governor Fairchild. 
 
CHAPTER VII. 
 
 THE SEPARATE SUPREME COURT AND ITS JUDGES. 
 
 (Continued.) 
 
 JASON DOWNER. 
 
 "Jason Downer was born at Sharon, Vermont, September 9, 1813. 
 His father was a wealthy farmer, as wealth was counted in those days. 
 He remained at the homestead farm until he was nineteen years of age. 
 He then entered Kimball union academy at Plainfield, New Hamp- 
 shire. In 1834 he entered Dartmouth college, and graduated in 1838. 
 He soon afterwai-ds went to Louisville, Kentucky, where he studied law 
 and was admitted to practice. In 1842 he removed to Milwaukee. 
 About that time the Milwaukee Sentinel was established. Mr. Downer 
 was one of the original proprietors of the paper, and for about six 
 months he filled the editorial chair. He retired from that position in 
 favor of Gen. Rufus King. Thenceforth he devoted himself to the prac- 
 tice of the law. 
 
 "In November, 1864, he was appointed an associate justice of the 
 supreme court in place of Byron Paine, resigned, and the following 
 spring he was elected to that position for a full term. He participated 
 in the labors of the court until September 11, 1867, when he resigned. 
 (His death occurred September i, 1883, at Milwaukee.) 
 
 "His judicial career, including a brief period when he occupied the 
 circuit bench, by appointment to fill a vacancy (in 1869), did not exceed 
 three years. But it was long enough to estabhsh his standing as a 
 learned, industrious and able jurist. 
 
 "By far the greater portion of his active hfe was spent in the practice 
 of law in Milwaukee county. At the Milwaukee bar his powers were 
 formed; there they were put forth in their full vigor for more than 
 
 154 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 155 
 
 thirty years; there he acquired the professional distinction that led to 
 his elevation to the bench; there he earned the greater part of his for- 
 tune. He returned to the Milwaukee bar when he laid by the judicial 
 ermine, and he was a member of that bar down to the day of his death. 
 
 "As a lawyer he was distinguished for the extent and depth of his 
 learning, for the soundness of his judgment, and for professional dili- 
 gence and fidelity. As an advocate he was strong and convincing, 
 whether deahng with questions of law or fact. If he lacked the elo- 
 quence and magnetism of Ryan, Arnold and Carpenter, or the in- 
 genuity and originality of Byron Paine, the deficiency was well sup- 
 plied by the soundness and extent of his learning and the clearness of 
 his views. His arguments were seldom ornate, never florid, but always 
 direct and to the point. As an adviser he was cautious and conser- 
 vative, not given to raising false expectations, never blind to the 
 strength of the adversary's case, and never tempted into that wild pro- 
 fessional partisanship so apt to injure the cause which it espouses. In 
 short, his cases did not run away with him. He was, therefore, justly 
 considered among the safest of advisers. It was mainly this quality that 
 built up for him a large practice and an enviable fame. His clients felt 
 secure in his judgment, his learning, and his industry. He was chary of 
 promises of success, and was apt to accomplish more than he pre- 
 dicted. 
 
 "As a judge his record was made here. I need not say to this court 
 that it is an honorable record. The reports of his opinions are redolent 
 of deep learning and vigorous thought. They are models of clearness 
 and conciseness. He was the organ of the court in the promulgation of 
 some of its important decisions, and the court has never, I believe, been 
 embarrassed by any looseness or redundancy in his manner of pro- 
 nouncing its judgments. It is surely better that one's style should be 
 colorless than that it should be colored by prejudice or whim, or dark- 
 ened by uncertainty. 
 
 "In his business relations his thrift and his integrity went hand in 
 hand. He accumulated a handsome fortune, but wronged no man. 
 In all his business ventures his caution and his enterprise were happily 
 
156 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 balanced. He was not afraid of large and complicated undertakings, 
 and he was not reckless or thoughtless in small and simple matters. 
 
 "It is but justice to add that although he made little public show of 
 any non-professional attainments or accomplishments, he was in fact 
 a ripe scholar and a diligent student of the ancient and modern classics. 
 
 "In his domestic relations it is enough to say that he was above 
 reproach. He leaves behind him a well earned reputation for probity, 
 diligence and ability. The disposition which he made of his large, 
 estate in his last will and testament may well serve as a model for other 
 rich men. Without neglecting any of the claims of kindred and friends, 
 he remembered in a munificent manner an institution of learning* in 
 which he felt an interest, and did not couple his gift with any of those 
 absurd and crotchety conditions which often make such a bequest a 
 burden rather than a help.''t 
 
 In responding to the memorial of the Milwaukee bar and the address 
 of Mr. Johnson in presenting it. Justice Cole said that the tribute of 
 respect paid to the professional attainments and judicial character of 
 Judge Downer seemed to him just and well deserved. He also said: "I 
 did not know Judge Downer before I took my seat upon the bench. 
 Indeed, I did not become intimately acquainted with him until some 
 time after that. He was rather retiring in his habits, and it was not 
 easy tO' become well acquainted with him. But when one had broken 
 through his reserved manner, and knew him well — as I think I did — ■ 
 it was found that he was not the cold, unsocial being, the human icicle 
 he was often taken to be. He possessed strong affections, active sympa- 
 thies, and had great kindness of heart. From the time I first met Judge 
 Downer, until he took his seat upon this bench, he had a large practice 
 in this court. I understood also — and such no doubt was the fact — that 
 he had a large and lucrative practice in the other courts of the state. It 
 
 *The Wisconsin Female College, formerly located at Fox Lake, now known as 
 the Milwaukee-Downer Female College and located in Milwaukee. 
 
 tThe foregoing is the substance of the address of D. H. Johnson (now Judge 
 Johnson of the Milwaukee circuit) in presenting to the supreme court the memorial 
 of the Milwaukee bar on the death of Judge Downer. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 157 
 
 is entirely safe to say that for some years before I knew him, certainly 
 after that time, he was an able and successful lawyer, recognized by the 
 members of the Milwaukee bar as a wise counselor and one of its strong 
 men. One who had any acquaintance with that bar twenty-five or 
 thirty years ago, who knew its leading members, need not be reminded 
 of what is implied in that simple statement^ — need not be told of the 
 earnest effort, the continued application which a lawyer had to make to 
 attain such a position, even when aided by the possession of strong in- 
 tellectual powers. As many of the bright and remarkable men who 
 then were numbered in its ranks have passed from earth, — beyond the 
 reach of all flattery and praise, — I hope it will not be deemed improper 
 or indelicate for me to add, that the Milwaukee bar twenty-five or thirty 
 years ago was a galaxy of brilliant and eminent lawyers and advocates. 
 It was with no little feeling of state pride that I heard, more than twenty 
 years since, a then — as now — distinguished judge of the supreme court 
 of the United States declare, when speaking to me about that bar, that 
 there was no other bar in his circuit which could be compared with it 
 in forensic ability, sound legal attainments, and genuine eloquence. It 
 was with such rivals that Judge Downer, in his practice, came in con- 
 flict and had to measure his strength. To acquire professional distinc- 
 tion and win fame and success in competition with such able antagonists 
 put in requisition great research and industry and all the resources of 
 a well-disciplined and strong mind. But Judge Downer acquired em- 
 inence at the bar, where every day and at every step, his claim to distinc- 
 tion was certainly challenged, and which he could only make good by 
 the best i^roof. 
 
 "He was a hard student and exclusively devoted to his profession. 
 The prizes of political life did not excite his ambitions or have attraction 
 for him. And he gave his whole heart and soul and energy to the study 
 and practice of his chosen profession. They seemed to be his delight by 
 day and his solace by night. The law is said to be a jealous mistress, 
 who will tolerate no rival. As a rule she certainly bestows her highest 
 favor, her brightest honors, upon those who court her most assiduously 
 and with the most unwearied devotion. This Judge Downer did do; 
 
158 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 consequently he became and was acknowledged to be a thorough and 
 profound lawyer. In his arguments before this court he never indulged 
 in any declamation or in fine speaking, but addressed the understanding 
 and reason. His efforts were never enlivened by any flashes of wit or 
 humor, nor embellished with any eloquent and rhetorical language. His 
 arguments were plain, clear, forcible and learned. His manner earnest, 
 direct, — at times, owing to the strength of his convictions, almost dog- 
 matic. But when he closed his argument you were sure to have an 
 exhaustive discussion of the law and facts on his side of the case, all pre- 
 sented in a lucid order with great clearness and force of reasoning. 
 
 "On Judge Downer's appointment to this bench he brought into 
 exercise the same useful and laborious habits, patient industry, and care- 
 ful examination of causes, which had characterized his practice at the 
 bar. He conscientiously investigated each case for himself and mas- 
 tered all its facts. He had great respect for authority, and wished to 
 walk in the old paths of the common law, super antiquas vias legis. He 
 had a strong sense of justice, and thought the rights of parties would be 
 most fully protected and secured by a rigid adherence to settled prin- 
 ciples. Some thought he was too technical and did not sufficiently ap- 
 preciate the necessity for new rules or the modification of old rules to 
 meet the demands of modern society and its ever changing business re- 
 lations. 
 
 "The opinions which he delivered from this bench are well described 
 in the memorial as being distinguished for the soundness of their logic, 
 the depth of their learning, and as safe and valuable precedents and ex- 
 positions of the law. He remained upon the bench about three years, 
 during which period he left in the published reports an enduring monu- 
 ment to his industry, discrimination, and exact and comprehensive 
 learning. To say that he was honest and impartial in the discharge of 
 his duties as judge may be faint praise, but it is true nevertheless." 
 
 William Penn Lyon was appointed to the vacancy caused by Judge 
 Paine's death, and qualified as associate justice January 20, 1871. 
 
<n'T^ 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 159 
 
 WILLIAM P. LYON. 
 
 William Penn Lyon, formerly a justice and then chief justice of the 
 supreme court, is the son of Isaac and Eunice (Coffin) Lyon. He was 
 born in Chatham, Columbia county. New York, on the 28th day of 
 October, 1822. His parents were members of the religious society of 
 Friends (Quakers); he was brought up in that faith and still cHngs to 
 its cardinal doctrines. 
 
 William attended the ordinary country district schools until eleven 
 years of age, when he was placed as clerk in a small store kept by his 
 father in his native town. Subsequently he attended select schools at 
 different times, amounting in all to about one year. These were the 
 only advantages of instruction ever enjoyed by him. But with these 
 and a reasonable use of his leisure hours, he acquired a fair English 
 education, including a limited knowledge of algebra, geometry and 
 natural philosophy. He also gave some time to the Latin language. At 
 the early age of fifteen he taught a district school; but he did not take 
 kindly to this employment, so he engaged as clerk in a grocery store in 
 the city of Albany, where he remained until eighteen years of age. 
 While there he spent most of his time outside business hours in attend- 
 ance upon the courts and the legislature, when in session, his tastes 
 leading him strongly in those directions. 
 
 In 1841 he, then in his nineteenth year, emigrated with his father 
 and family to Wisconsin, and settled in what is now the town of Lyons, 
 Walworth county, where he resided until 1850. With the exception of 
 two terms of school teaching he worked on a farm until the spring of 
 1844, when he entered the office of the late Judge George Gale, then a 
 practicing lawyer at Elkhorn, as a law student; but before this he had 
 read Blackstone's Commentaries, as well as those of Kent, quite thor- 
 oughly. He remained a few months with his preceptor when he re- 
 turned home to work through harvest. He was soon after attacked with 
 acute inflammation of the eyes and was, in consecjuence, unable to read 
 or teach for nearly a year. That year he worked on a mill then being 
 
l6o HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 built in Lyons at $12 a month, earning $100. In the fall of 1845 he 
 entered the law office of the late Judge Charles LI. Baker, at Geneva, as a 
 student, and remained there until the spring of 1846, when he was ad- 
 mitted to the bar by the district court of Walworth county. 
 
 Having been chosen one of the justices of the peace of the town of 
 Hudson (now Lyons), he at once opened an office there and commenced 
 the practice of law, but in a very small way. His receipts for profes- 
 sional and official business the first year were $60; the second year, 
 $180; the third year, $400, and the fifth year, $500. During the second 
 year (1847) his income had increased so much as, in his opinion, to 
 justify his getting married, the partner of his choice being Adelia C, 
 daughter of the late Dr. E. E. Duncombe, of St. Thomas, Ontario, 
 Canada. Rent and fuel and provisions in those days were cheaper than 
 they now are, and his income proved ample for their support. 
 
 In 1850 I\Ir. Lyon formed a partnership with the late C. P. Barnes, 
 of Burlington, Racine county, and moved to that place, where he re- 
 mained until the spring of 1855, when he changed his residence to the 
 city of Racine, where he continued in active practice of the law until 
 the breaking out of the war in 1861. He was district attorney of Ra- 
 cine county from 1855 to 1858, inclusive. He was chosen a member of 
 the lower house of the \\'isconsin legislature of 1859, and was made 
 speaker. It is a very unusual proceeding in a deliberative body of that 
 high character to call one to the delicate and onerous duties of presid- 
 ing officer who has not previously been a member of the legislature; 
 but in the case of INIr. Lyon the choice was abundantly justified by the 
 capable manner in which the duties were discharged. He was re-elected 
 a member of the assembly the following year, and was again chosen 
 speaker, without a contest having been made in the caucus of republican 
 members for nomination (:Mr. Lyon belonging to that political party). 
 He retired from his second term in the legislature, at the age of thirty- 
 eight, with the warm friendship of the members without distinction of 
 party, with an enviable reputation throughout ^^'isconsin, and with the 
 promise (which it will soon be seen has been fully realized) of an hon- 
 orable and useful public career. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. l6l 
 
 When the attack upon Fort Sumter aroused the north to arms, Mr. 
 Lyon did not let his religious scruples interfere with his duty to his 
 country. One hundred brave and determined citizens enlisted under 
 him, and he was commissioned captain of Company K, of the eighth 
 Wisconsin infantry, to rank from the 7th of August, 1861. The regi- 
 ment to which Captain Lyon and his company were attached was or- 
 ganized on the 4th of September, 1861, with Robert C. Murphy, of St. 
 Croix Falls, as its colonel. It left Madison on the 12th of October, and 
 arrived in St. Louis on the evening of the next day. This was the 
 famous "Eagle" regiment, so called from the circumstance of its having 
 with it a live eagle^ — "Old Abe." It reached Benton barracks nine hun- 
 dred and eighty-six strong. The day after its arrival it marched against 
 the enemy. By the 12th of October the boys were in pursuit of "Jef- 
 ferson Thompson," and on the 21st were near Greenville, when a des- 
 perate fight ensued. "The battle," afterward wrote Major Jefferson, of 
 the eighth, "lasted one hour and a half, and I think it was one of the 
 most brilliant and complete victories we have had during this war." 
 Captain Lyon took an active part in this, the first conflict in which his 
 regiment engaged. 
 
 After various duties having been performed by it, the eighth regi- 
 ment on the 9th of May, was at Farmington, when twenty thousand of 
 the enemy came out to attack General Pope's much smaller force. A 
 portion of the eighth was posted in front under Major Jefferson, and 
 soon deployed as skirmishers, only to fall back when the confederates 
 advanced in force. The regiment, for an hour, withstood the artillery 
 fire of the foe without support. As the enemy outnumbered the federals, 
 and General Halleck did not wish to bring on a battle, the national 
 troops retired to the next line in the rear, and that terminated the 
 action. 
 
 After other important service, the regiment to which Captain Lyon 
 belonged went into summer quarters at camp "Clear Creek," nine miles 
 south of Corinth. On the 5th of August, while in the hospital of luka, 
 Mississippi, the captain was promoted to the colonelcy of the thirteenth 
 Wisconsin regiment. He subsequently returned home for a brief 
 
i62 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 period, and after being- mustered in as commander of the regiment just 
 named joined it in October, 1862, at Fort Henry. 
 
 On the last of October Colonel Lyon, with his regiment, embarked 
 on steamers and proceeded to Shoditz Landing, on the Tennessee, 
 where they joined the force under command of General T. E. G. Ran- 
 som, marching thence to Hopkinsville, to attack the confederate' troops 
 under General Morgan; but no enemy could be found. However, on 
 the evening of the 6th of November they came up with the foe, com- 
 manded by Woodward, near Garrettsburg. After a short but severe and 
 decisive skirmish the enemy escaped under cover of the darkness, 
 leaving several killed and wounded on the field. Subsequently Colonel 
 Lyon with his command returned to Fort Henry. From the 21st of De- 
 cember to the end of that year the regiment pursued Forrest, but re- 
 turned to Fort Henry January i, 1863. On the 3d day of February, at 
 four in the afternoon, information was received that Fort Donelson was 
 attacked. In half an hour Colonel Lyon had his regiment on the road, 
 marching to reinforce the eighty-third Illinois at that important point. 
 After driving the enemy's skirmishers five miles they arrived in the 
 vicinity of the fort at ten in the evening, with a loss of one man 
 wounded on the march. ^leanwhile the garrison of Fort Donelson, as- 
 sisted by the gunboats, had repulsed the confederates with severe loss — 
 had in fact gained a signal victory. 
 
 During the spring and summer of 1863 Colonel Lyon's men were 
 sent out by him on scouting duty, taking many prisoners and prevent- 
 ing the formation of any considerable force of guerrillas. 
 
 Participating in the forward movement of the army of the Cumber- 
 land, the thirteenth regiment left Fort Donelson on the 27th of August, 
 reaching Stephenson, Alabama, on the 14th of September. Colonel 
 Lyon was placed in command of that post. This was a point of consid- 
 erable importance, being the depot of supplies for the whole army. The 
 garrison was very small, provided with but httle artillery, and the place 
 was easily accessible to the cavalry of General Bragg. However, relief 
 came in the beginning of October Ijy the arrival of the eleventh and 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 163 
 
 twelfth corps under command of Major General Hooker from the army 
 of the Potomac. 
 
 On the evening of the 26th of October, 1863, Colonel Lyon left 
 Stephenson with his regiment to join the brigade to which it was at- 
 tached, and went into winter quarters at Edgefield, on the Cumberland 
 opposite Nashville, where they were employed at picket and guard 
 duty. However, three-fourths of their number having "veteraned," the 
 regiment left for Wisconsin on furlough, where Colonel Lyon remained 
 five weeks and then returned to Nashville. Again, in the latter part of 
 April, the thirteenth regiment was ordered to Stephenson and Colonel 
 Lyon the second time placed in command of that post. In the reorgan- 
 ization of the army, in 1863-64, Colonel Lyon's regiment was assigned 
 to the first brigade, fourth division of the twentieth army corps. He 
 left Stephenson on the 6th of June and for nearly three months had his 
 headquarters at Claysville, Alabama, guarding during that time various 
 fords and crossings of the Tennessee river. Late in August he was 
 ordered to Huntsville, where he arrived on the 3d of September, and 
 was placed in charge of the railroad from Claysville to Stephenson, and 
 was responsible for the preservation of the posts and lines of communica- 
 tion within his charge. Besides his own regiment he had under him 
 several detachments of infantry, three large regiments of cavalry (a 
 portion of which were dismounted and used as infantry), and a battery 
 of artillery. 
 
 On the 7th of July of that year the thirteenth regiment, now a part 
 of the third brigade, of the third division of the fourth army corps, left 
 the Mississippi river for Texas, going afterward to camp at Green Lake 
 on the i6th of July. Here on the nth of September, 1865, Colonel 
 Lyon was mustered out of the service. He was subsequently brevetted 
 a brigadier general of United States volunteers to date from the 26th 
 day of October of that year. The thirteenth regiment was mustered out 
 on the '24th of November, at San Antonio, reaching Madison, Wiscon- 
 sin, on the 23d of December, where, three days afterward, the men were 
 paid ofif and the regiment formally disbanded. 
 
 Before Colonel Lyon was mustered out of the service he was chosen 
 
l64 HISTORY OF THE BE^"CH AXD BAR OF WISCONSIN. 
 
 judge of the first judicial circuit, comprising the counties of Racine, 
 Kenosha, Wahvorth, Rock and Green. He entered upon the duties of 
 that position on the ist of December, 1865, and served for five years 
 with a degree of ability that won unqualified commendation from 
 all* 
 
 In 1866 independence day was made the occasion at the capital of 
 AA'isconsin for the formal presentation to the state of the battle flags 
 of the several regiments which the commonwealth had sent into the 
 field. Judge Lyon was selected to deliver an address to the governor 
 and people on behalf of the soldiers when these flags should be given 
 up. His oration was a masterly effort — impressive for its impassioned 
 eloquence. 
 
 In 1870 Judge Lyon was the republican candidate for Congress in 
 the fourth district, but was defeated at the polls by Alexander 
 :\Iitchell. 
 
 The death of Byron Paine, one of the associate justices of the su- 
 preme court of ^^'^isconsin, on the 13th of January, 1871, caused a 
 vacancv on that bench which was filled bv Governor Fairchild bv the 
 
 *In his article on "The Supreme Court of Wisconsin," in vol. 9 of the Green 
 Bag, p. 171, Mr. Bryant wrote as follows of Judge Lyon: He made an admirable 
 nisi prius judge; and his popularity with the bar and suitors, jurymen and the public 
 generally was matter of universal comment. His circuit embraced the counties ot 
 Racine, Kenosha, \\'alworth. Rock and Green, in the southeastern portion of the state. 
 In his time the court week was an important event in the inland counties. The well- 
 to-do farmers came in, visited, attended court, listened to the trials and arguments, 
 and invariably took sides early in the trial. At a sharp repartee of a lawyer or a good 
 hit-back of a witness to a badgering cross-examiner they were wont to laugh heartily, 
 and were demonstrative to the eloquence of some gifted lawyer. Judge Ljon in- 
 dulged them within reasonable limits: and his kindness on the bench, blended with 
 dignity and judicial abilitj', made him immensely popular with the people. His suc- 
 cessor on that circuit was a man in some respects entirely different. A good judge 
 and a just, he tolerated no laughter or levity in court. If a man came in with 
 squeaking boots, the judge would say, "Suspend! Mr. Sheriff, you will protect the 
 court from the noise of squeaking boots.'' If a titter ran through the court room 
 at some witticism, the stern tones of the judge were heard: "Suspend! Mr. Sherifif, 
 arrest and bring to the bar all persons disturbing the proceedings by laughter.'' The 
 old settlers soon found the restraint unendurable, and gave up their custom of at- 
 tendance. "Judge Conger is too strict," they said. "It's a contempt in his court to 
 sneeze or to smile. But it was might\- pleasant thar in Judge Lyon's time.'" 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 165 
 
 appointment of Judge Lyon to the place on the 20th of the same month. 
 In the fohowing April he was elected by the people for the unexpired 
 term and for the full term succeeding. In 1877 and in 1884, he was re- 
 elected for full terms; the last time for ten years. Judge Lyon pubhcly 
 announced three years before the expiration of his last term that he did 
 not desire and would not accept a re-election. He never wavered in his 
 determination to retire from the bench at the close of his term, ancl on 
 January, 1894, he retired from the bench, having, by reason of his 
 seniority of service, served the last two years as chief justice. 
 
 Judge Lyon, at the earnest solicitation of the regents of the univer- 
 sity of Wisconsin, consented, in addition to his onerous duties as one 
 of the associate justices of the supreme court, to take upon himself the 
 labor of lecturing before the law class of that institution. His lectures, 
 beginning in 1871, were continued to the end of the university year in 
 1873. His time was given "without reward or hope thereof." On 
 commencement day, in 1872, the university conferred upon him the 
 honorary degree of LL. D. 
 
 The published decisions of Judge Lyon since he has occupied a 
 position upon the bench of the supreme court run through volumes 27 
 to 86, inclusive, of the reports. While these are characterized for their 
 clearness ancl brevity they also show a careful examination of the facts 
 of, and just appreciation of, the law appertaining to the cases in 
 hand. 
 
 Judge Lyon was one of the first, if not the first, justice of the su- 
 preme court to prepare a statement of the facts in each case — a task 
 usually performed by the official reporter. 
 
 Edwin E. Bryant has very justly written that "it-is but stating a truth 
 
 to say that no man ever stood higher than Judge Lyon for all the cjual- 
 
 ities and equipoise of qualities that constitute the just judge. Confidence 
 
 in his integrity is universal. His mind is happily constituted to see the 
 
 right of the case. Calm, patient, unbiased, he brought to investigation 
 
 that sincere desire to be right that opens the mind to perceive justice. 
 
 His professional labors covered a period of forty-eight years. He was 
 
 judge twenty-eight years, and twenty-three years on the bench of the 
 11 
 
l66 HISTORY OF THE BEXCH AND BAR OF WISCONSIX. 
 
 supreme court. His style is remarkable for its simple directness, lucidity 
 and freedom from ornament. "f 
 
 Soon after his voluntary retirement from judicial sen-ice Judge Lyon 
 went to California and made an extended visit with his children. Soon 
 after returning to Wisconsin he was appointed by Governor Upham, in 
 1896, a member of the state board of control of charitable, penal and 
 correctional institutions. In 1897 he was reappointed by Governor 
 Scofield. To the discharge of the ver\- important duties of this position 
 Judge Lyon has brought, undiminished in degree, the same excellent 
 judgment and painstaking care which characterized him as a legislator, 
 soldier and judge. 
 
 He and his excellent and greatly respected wife reside in ]\Iadison, 
 crowned with the veneration which long, useful and unselfish lives are 
 entitled to. They have two sur^'iving children — Clara Isabel, born in 
 1857, the wife of J. O. Hayes, and William Penn, Jr., of San Jose, Cali- 
 fornia, born in 1861. 
 
 The next change in the membership of the court occurred June 17, 
 1874, when Edward G. Ryan qualified as chief justice, having been ap- 
 pointed by Governor Taylor to succeed Luther S. Dixon, resigned. 
 
 EDA\'ARD GEORGE RYAX.* 
 
 The late chief justice of AMsconsin — Edward George Ryan — was 
 born at Newcastle House, in the county ]\Ieath, Ireland, on the 13th of 
 November, 1810. He was the son of Edward Ryan and Abby Keogh 
 Ryan. The boy was educated at Clongoe's Wood college, which he 
 entered in 1820, completing the full course of his studies in 1827. 
 Three years subsequent to this he came to the L'nited States. He had 
 made some attempts at studying law before leaving his native country. 
 
 tp Green Bag, 172. 
 
 *The editor acknowledges his obligations to "William W. Williams, formerly 
 editor of The Magazine of Western History, for permission to use the sketch of 
 !Mr. Rjan here given. It was prepared by Consul Willshire Butterfield, formerly of 
 Madison, Wisconsin, and originally published in vol. 5 of the magazine named. 
 The editor is responsible for the notes. 
 

HISTORY OF THE BENCH AND BAR OF WISCONSIN. 167 
 
 "I had," wrote the subject of this sketch, some years ago, "exag- 
 gerated notions of the ease with which men got on in this country, and I 
 finally obtained my father's consent to come here. So I came in 1830. 
 I did not know then, but have long since known, that my father ex- 
 pected me to fail and to return to Ireland. I was too proud to do so. 
 I studied law in New York as I could, supporting myself by teaching. 
 I was admitted in 1836 to practice my profession, and came that year to 
 Chicago. Up to that time I had never known what sickness was. But 
 I was peculiarly subject to miasmatic disease, and was in very poor 
 health dviring the whole time I was in that city." 
 
 "In 1834," says T. G. Turner, "I was a boy merely and a clerk in 
 an importing house. I boarded at Mrs. Ballard's, on Pearl street, a 
 quite celebrated house of entertainment at that day. The late Chief 
 Justice Ryan, of Wisconsin, some seven years my senior, boarded at the 
 same house. I remember him as a genial, witty, able young man, ad- 
 dicted to 'Irish bulls,' easily imposed upon by his joke-cracking asso- 
 ciates, but by all respected and held in high esteem. Boarding at the 
 same house at the time mentioned was Mr. Preston, author of a book of 
 interest tables, quite celebrated at that day, and also Gould Brown, 
 author of the best grammar of the English language with which I am 
 acquainted. Mr. Brown was a Quaker, a scholar and a gentleman, and 
 his grammar will be held as authority when the names of a hundred pre- 
 tenders have vanished from the list. I remember divers skirmishes be- 
 tween Mr. Brown and Mr. Ryan, the conclusion of all of which seemed 
 to be that the grammarian conceded to the late chief justice the honor 
 of using the Irish idiom correctly, but claimed that his knowledge of 
 the English tongue was imperfect, if not ridiculous." 
 
 Mr. Ryan was one of the early journalists of Chicago. He was editor 
 of a paper there called the Tribune, which was published in 1839, but 
 which closed its career in 1841. It was printed by Holcomb & Com- 
 pany. Holcomb was the printer and Ryan was "the company" and 
 editor. The Tribune was democratic in politics. Its editor wrote long 
 and able articles for the paper but not always on the popular topics of 
 the day. He gave subjects to his readers to think about rather than 
 
i68 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 for them to be simply pleased with. The paper arotised, as a conse- 
 quence, but little enthusiasm, had but a limited patronage, and, as 
 already intimated, its existence was brief.* 
 
 In 1842 Mr. Ryan was married to Mary, eldest daughter of Captain 
 Hugh Graham, and immediately removed to Racine, Wisconsin. He 
 was chosen one of the fourteen delegates from that county to the con- 
 vention which met in Madison in 1846 to frame a constitution for the 
 state. He took an active and prominent part in the deliberations and 
 debates of that body, and his ideas were stamped upon some of the 
 important provisions of the instrument which was given to the people 
 as the result of the deliberations of its members.t He was chairman of 
 the committee on banks and banking, second on the committee on the 
 the judiciary, and also a member of the committee on education. When 
 he took his seat in the convention he was a stranger to most of the able 
 and brilliant members of that body, and when he took the floor for 
 discussion for the first time, they were very much astonished at his 
 power, energy and eloquence as a debater. He advocated the extreme 
 radical features that were engrafted in the instrument agreed upon and 
 submitted to the people of Wisconsin. But the constitution thus pre- 
 pared was rejected at the polls. It was at this convention that the won- 
 derful powers of Mr. Ryan first attracted the attention of the people of 
 the state at large and gave him a state reputation. 
 
 *In 1840 and 1841 Mr. Ryan was prosecuting attorney for Cook county, in which 
 Chicago now is. General Usher F. Linder, in his Reminiscences of the Early Bench 
 and Bar of Illinois, says that his acquaintance with E. G. Ryan commenced at Van- 
 dalia in 1836-37. "He was there in attendance upon the supreme court as a lawyer, 
 his residence being then at Chicago; and I think I may say, without giving offense 
 to any living man, there was no man then at. the bar who could claim to be his 
 superior. Ryan is an Irishman by birth. He is a man of bad temper and tyrannical 
 disposition. He fell out with Isaac P. Walker once at Springfield, and abused Walker 
 in adjectives that but few men could stand, and Walker gave him a terrible flogging 
 which I presume he has not forgotten even to this day. Walker was a perfect 
 Hercules in physical strength and power, and therefore it was no difficult task to ad- 
 minister this chastisement to Ryan." 
 
 tHe made an able report designed to prohibit banks of issue and withholding 
 from corporations the right to exercise any banking powers; he also vigorously op- 
 posed an elective judiciary, and was for permanence in the terms of judges. The 
 stringent provisions in the proposed constitution concerning banks had much to do 
 with the rejection of that instrument by the people. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 169 
 
 In 1848 Mr. Ryan represented his party as a delegate in the national 
 convention, held in Baltimore, which nominated Lewis Cass for the 
 presidency. 
 
 Mr. Ryan lost his wife in July, 1847, and in December, 1848, he 
 removed from Racine to Milwaukee. "When I first went to Racine," he 
 once wrote "it seemed doubtful which would be the larger place, that or 
 Milwaukee; that doubt was settled long before I moved." In 1880 Mr. 
 Ryan again married; his second wife, who still survives him, was Miss 
 Caroline Willard Pierce, of Newburyport, Massachusetts. 
 
 In Milwaukee Mr. Ryan was associated, successively, in the practice 
 of the law, with a number of the foremost practitioners of the city. He 
 made himself prominent as a lawyer in the city, his reputation soon ex- 
 tending over the state, and even beyond the boundaries of the latter, by 
 -his connection with several notable cases, particularly some murder 
 trials. It was because of this celebrity which he had gained that he 
 -was afterwards employed in the celebrated "Hubbell impeachment 
 .case." 
 
 The sixth session of the Wisconsin legislature, under the state con- 
 -stitution, commenced on the 12th of January, 1853. On the 26th of the 
 same month, William H. Wilson, of Milwaukee, preferred charges in the 
 assembly against Levi Hubbell, judge of the second judicial circuit of 
 .the state, of divers acts of corruption and malfeasance in the discharge 
 of the" duties of his office. A resolution followed appointing a commit- 
 tee to report articles of impeachment, directing the members thereof to 
 go to the senate and impeach Hubbell. Upon the trial the defendant 
 had for his attorneys, Jonathan E. Arnold and James H. Knowlton. 
 The managers, on the part of the assembly, employed Mr. Ryan as their 
 counsel, who, on the 13th of June, 1853, ''^ the senate chamber at Madi- 
 son, made his opening argument. It is unnecessary in this connection 
 to enter at all into the details concerning this remarkable trial. Men- 
 tion of it is made only that the great ability of Mr. Ryan as an attorney 
 may be thereby clearly demonstrated. 
 
 After the witnesses had all been examined, the arguments of the 
 defendant's counsel were entered upon. Judge Hubbell was ably de- 
 
17° HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 fended. Mr. Knowlton began his remarks upon the 5th of July and 
 occupied two days. He was then followed by Mr. Arnold who fin- 
 ished his address in one day. The first argument for the prosecution 
 was made by H. T. Sanders, one of the managers, followed by Mr. 
 Ryan who closed the case. 
 
 Upon rising to make the closing argument, Mr. Ryan asked the 
 indulgence of the court, as he was laboring under great physical dis- 
 ability, and then commented upon the ground taken by counsel for de- 
 fense that there was hardly a precedent for the employment of an attor- 
 ney by the prosecution to manage the trial on their part. Then he 
 added: "We have been told that the people of this state believe that not 
 Levi Hubbell, judge of the second judicial circuit, but the prosecution in 
 this case, are upon their trial in this cause." Then he began the fight on 
 the skirmish line by asking: "Who are the prosecution?" and by an- 
 swering: "The sovereign people of this state, in all its length and in all 
 its breadth, as represented in their sovereign capacity upon the other 
 side of this capitol, the assembly of this state, trusted, and trusted alone 
 by the constitution of the state with the power of impeachment; their 
 honorable managers representing their constitutional, power and per- 
 forming their constitutional duty in this court; and last and least of 
 all, I, their humble counsel; we are upon trial, not Levi Hubbell, 
 judge of the second judicial circuit!" "And what are we upon trial 
 for?" he asked. "What is the charge against the sovereign majesty of 
 the people? — That they have dared to arraign Levi Hubbell here for 
 his judicial corruption. What are the honorable, the assembly, here 
 upon trial for? That they have dared to call Levi Hubbell to account. 
 What are the committee of managers, who have discharged their duty, 
 in honor, here upon trial for? What am I here upon trial for? Who 
 is the delinquent here by the proofs in this cause? Who is the criminal 
 here? Whose character is upon the rack of proof? Sum up the whole 
 of this cause, take one solid, concentrated view of all the truth and 
 fact here, and tell me whose heart is stained with guilt? In whom does 
 this evidence bare to the world a perverted mind and an unclean heart? 
 Aye, who is upon trial here?" 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 17^ 
 
 "Is it," he continued, inquiringly, "that a little brief authority, is it 
 that a little popularity, an accidental, perverted, vicious popularity, a 
 popularity which is done and ended, lifts a criminal above account- 
 ability, prompts him to turn in vindictive threats upon his constitutional 
 accusers, to impeach the authority of the people, the constitutional 
 authority of the land, and turn like a dog to bite the hand that fostered, 
 raised and fed him, when it is raised to chastise him? And are we here 
 to fall? Yes, we cannot withstand it! A tornado of destruction is to 
 overwhelm us! There is in God or man no salvation for us! They shall 
 fall! That is the emphatic use made of the future tense by the counsel!" 
 
 "And what," he asked, "is this tornado — the threat was passionate 
 and vindictive, but vague and shadowy — what is this tornado which is 
 to overwhelm the assembly, their committee and their counsel? Is it 
 lynch law? Is that law to arise in the land at the bidding of one of the 
 judges of this land? Is lynch law to rise up and shelter him because he 
 is proven to have outraged the ordained constitution and law of the 
 land? Is it invoked here because by the spirit of no other law can he 
 escape the judgment of his guilt? Is that the threat? Or what else 
 is this tornado before which we must fall? Is it assassination by the 
 bullies who surround this defendant? Is it perjury which is to follow 
 us into his corrupt courts, with corrupt judgment following upon it to 
 destroy us before God and man, to sweep us from the face of the earth? 
 Or is it a tornado of opinion only? Whence does it come? Where in 
 this broad state is that voice heard from? I will tell you, and I will 
 tell you plainly, and I wish the counsel was in his place to hear me. It 
 is imported here into the senate chamber from the dram-shops, the 
 brothels and the hells of Milwaukee. That is where it comes from. It 
 is the voice of corruption mourning for its chief. It is the voice of vice 
 mourning for its champion." 
 
 The counsel for the defense described some judges as cold, misan- 
 thropic, unsympathizing, but declared Judge Hubbell to be of a dif- 
 ferent organization. The answer of Mr. Ryan to this was this arraign- 
 ment of the defendant. "He tells us," said he, "that the defendant 
 is of a peculiar organization; open, frank, polite, generous, confiding, 
 social, sympathetic, anxious to conserve, seeking it where it is not 
 
172 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 sought, too sensitive to repel approach. He tells us that repeated 
 solicitations met his client daily in his judicial walk; and that though 
 conscious of the wrong, he was too poHte, too easy, too accessible to 
 repel them. He tells us that his friend could not assault those who so 
 beset him, and he would not rebuke them; in effect that he had no 
 moral power to repel corrupting approaches and corrupting influences. 
 That is the counsel's analysis of the character of the judge of the second 
 judicial circuit whom he defends as his personal and judicial friend. I 
 believe that his estimate is within the truth. A frank character that 
 can repel no approach, rebuke no advance, resist no corruption! Mr. 
 President, change the sex and what .character has he described? Easy 
 virtue has no sex. That character which makes a woman a wanton, 
 makes a man an easy prostitute to every vice without a sex. Chastity 
 of mind is as essential of men as chastity of passion is to women; and I 
 say in bold commentary on the character given by the counsel to his 
 client, that harlots are of both sexes and of all conditions in human life." 
 And he further added : "A judge of easy virtue, approaching and ap- 
 proached, solicited and soliciting, lending a judicial ear to whispers 
 which tamper with judicial virtue, approaching and retreating by turns, 
 with a rare mockery of judicial virtue on his tongue; promising to set 
 aside verdicts, hinting the vacating of judgments, suggesting settle- 
 ments for his friends, dissolving injunctions before they are issued, 
 chambering in private with jurors in jury room, suggesting nolle 
 prosequis to district attorneys to favor his friend's friend, who was ac- 
 cused of the simple impropriety, the naked indiscretion — that is the 
 word in this cause — of adultery; divorcing women and instructing 
 them in the principles of divorcing in sacred privacy, promising to bring 
 on causes for trial when the proper evidence on which they were founded 
 was lost; tampering with the penal judgments of the law; when money 
 was payable into court, offering to receive part into his own particular 
 pocket, instead of the whole into court, as required by law; advising 
 suitors what course to take, in order that he might help them to 
 accomplish their ends; so solicited, as a system by his special friends, 
 that they cannot remember the times or the causes in which they sought 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 173 
 
 to prostitute his judicial virtue, and yet, never met with repulse; re- 
 fusing to hear argument in court in order to keep his promise made 
 in private." 
 
 Mr. Ryan, in speaking upon the admission by the defendant's coun- 
 sel that the conduct of Judge Hubbell on certain occasions was only 
 indiscretions — attributes of his peculiar character — said: "I do not 
 know, Mr. President, but there may be characters so peculiarly consti- 
 tuted that crime cannot attach to them. I have heard lately, Mr. Presi- 
 dent, of moral insanity; I have learned lately of the doctrine of moral 
 insanity, a new and pretty name for moral depravity; there may be char- 
 acters SO' framed that crime cannot attach to them, and I suppose that 
 this is the soul of the argument here. There may be moral obliquity 
 which cannot see the wrong. There may be a moral organization in 
 which right and wrong are mixed up in confused mazes without power 
 to distinguish between them. That may be moral insanity. 
 
 "But, Mr. President, I have to say at once here, of all moral insanity, 
 of all moral obliquity, which is set up as a defense for guilt, that such 
 moral insanity, such moral obliquity, comes not from God, but from the 
 abuse of the constitution which God gives to his creatures; it comes not 
 from heaven but from the abyss. It comes from the abuse of the 
 faculties, and is not inherent to the use of them. The disease of a 
 faculty is insanity; the disease of a propensity is guilt. And I have to 
 add to this defense of peculiar organization, that if it be true, as is 
 avowed by his counsel here, that the judge of the second judicial circuit 
 is of that character that he cannot avoid judicial impropriety, judicial 
 indiscretion; if that is the best defense that can be made for him here, 
 that he is of such a peculiar organization that he cannot avoid such 
 things as are here charged and proved upon him, and is therefore not 
 responsible, I say that the second judicial circuit has enjoyed that kind 
 of character quite long enough and is entitled to be rid of it. That is 
 a defense that he is so unfit for his office that he is not to be removed for 
 the abuse of it. 
 
 "Mr. President," said Mr. Ryan, in commenting upon some of the 
 indecent acts with which the defendant was charged, "it is said that he 
 
174 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 who lays his hands upon a woman save in the way of kindness, is a brute. 
 I say more: he who puts his hand upon a woman, even in kindness, save 
 in that kindness which is authorized by the relations between them; he 
 who lays his hands in the unauthorized instinct of sex upon a woman, 
 insults and wrongs her. I speak not here of bestial assaults upon the 
 sanctity of woman's person. I care not whether man's arm be thrown 
 gently around the waist, or man's hand clasp the hand of woman; I care 
 not what the imposition of hands may be; if it be the imposition of sex 
 unauthorized by the relations of the parties, or the free consent of the 
 woman first given, it is a brutal assault. It is the assault of lust upon the 
 outworks of chastity. It is an attempt to debauch. Mr. President, God 
 has made man strong and woman weak. Mr. President, the same God 
 has made human society dependent on the chastity of woman, and on 
 man's faith in it. Take chastity from woman, and family, kindred, and 
 home become things unknown amongst men, as unknown as amongst 
 the beasts of the wilderness. What protects society? What upholds 
 the purity of woman, which is the life and being of woman upon this 
 earth? Ruled by the laws of mere physical force, they walk upon the 
 earth subjects of man's passions, as a man walking in the wilderness 
 of Africa is the subject of the untamed appetite of the wild beasts who 
 roam there in the supremacy of brute force. But God has given to 
 woman a chastity of being that men worship like an idol. God making 
 woman weak in body, has made her strong in purity; and she walks this 
 earth with all the master strength and undisciplined passion of men 
 about her, and yet walks and will walk this earth for all time, free and 
 secure in her native modesty, unapproached save in honor, unsullied 
 even in thought. That is God's charter to woman — that is her guard 
 on earth. And the man, I care not who or what, unlicensed by any rela- 
 tion of legitimate affection, claiming no father's, no brother's, no son's, 
 no husband's, no recognized and accepted lover's rights; the man who 
 in the effrontery of passion, or the disguised approaches of passion, but 
 raises his hand toward her, aye, but looks his lust to her, is a brute who 
 outrages not merely her, but outrages all the sanctities of human nature 
 in her person." 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 175 
 
 This is the manner in which Mr. Ryan defended the legal profession, 
 while he was speaking of the charge against Judge Hubbell that he had 
 declared to a young attorney that he must not defend a certain person in 
 his court: "He tells the bar, by the God of Heaven! whom they shall 
 take for clients! He tells the world that no lawyer at his bar shall hold 
 his favor if he dare to advocate the cause of those in his displeasure. I 
 tell you, sir (turning to the defendant), that when you dictate to the 
 bar you do not know the bar. I am proud to say it to you, face to face, 
 before this solemn court, that you do not know the spirit of the legal pro- 
 fession. You may have been of it longer than I who say it, but you 
 have not belonged to it long enough to learn the high and honorable 
 spirit of the profession. To dictate to an honorable young lawyer 
 whom he shall take for his client, whose legal rights he shall 
 assume to advocate! The legal profession has done many bad 
 things and has produced many bad men; but it is a glorious old pro- 
 fession, and I love it and am proud of it. It may do in these days for 
 demagogues to denounce it; but I say now and always, here and else- 
 where, what all history proves, that there was seldom a great stride made 
 in human progress in which the bar was not a moving power. It is an 
 honorable profession, an independent profession. No judge has ever 
 cowed it or broken its independence. Touch its independence and it 
 rebels to a rhan, shoulder to shoulder, standing up against the invasion 
 of its rights. A corrupt judge may disorganize it; but a tyrannical court 
 can neither bend it nor break it. The relation of a lawyer to his client 
 is a peculiar and important one. Life, character, liberty, prosperity, all 
 that is dear and sacred in life, are the trust of the client to his lawyer. 
 The world may assail; the world may persecute; death and ruin may 
 overhang; all men may desert, but the unfortunate is secure in the zeal 
 and loyalty of his advocate. And this is the relation the defendant 
 tampers with; this is the profession he seeks to bend to his caprice or 
 his ambition." 
 
 The summing up of Mr. Ryan was as follows: "There is," said he, 
 "but one of two things for this court to do; to hcense this shameless 
 prostitution of justice, or to end it at once and forever by its judgment. 
 
176 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 There is no other alternative. You can hope nothing here from the 
 penitence of guilt exposed; you can expect no lesson to such a defend- 
 ant from such a trial, except in the judgment. Exposure and shame 
 have no power upon a man who sees honor in his dishonor, virtue in his 
 vice, purity in all the uncleanness of his mind, health in his rotting 
 corruption, unshocked by all this array of guilt, any escape from justice 
 would be a triumph to him. Honorable acquittaMie cannot have, and 
 does not hope. Any escape from judgment would send him back upon 
 our unfortunate circuit, exulting in the self-complacency of unconvicted 
 guilt. The parasites of corruption would cry aloud in triumph at his 
 escape by any means. You see it in this defense. His friends, his 
 satellites, his conscience, approve of all that is here in proof. They 
 have not the grace to claim acquittal as a mercy; they insult the court by 
 claiming it as justice. They ask you to send forth this defendant with 
 -all this load of unblushing guilt upon him, as the standard of judicial 
 morality which this court is to erect in this state. They say there is here 
 ■no wrong, no sin, no guilt, no impropriety, no corruption, which shocks 
 their conscience or should reach the conscience of the court. That is 
 their sense, that is the defendant's sense, of a system of judicial conduct, 
 which I dare not undertake to describe in my own language.;, Shakes- 
 peare was a prophet. When he wrote his half inspired book, the race of 
 prophets was not entirely gone. His language, bold and high wrought 
 as it is, is literally true of the administration of justice in the second 
 judicial circuit of this state, centuries after the great describer of the 
 world had passed from the earth: 
 
 " T have seen corruption boil and bubble till it overrun the stew. 
 Laws for all faults — but faults so countenanced, that the strong statutes 
 stand like the forfeits in a barber's shop, as much in mock as mark.' 
 
 "And here is the wellspring of corruption before you. Here is the 
 author, the minister, the father of all this corruption, pluming his 
 feathers before you, pluming himself in the face of all this proof; 
 spreading his feathers and strutting in the sight of the world, as a man 
 without spot or stain, as a pure and immaculate judge. 
 
 "The assembly of the state of Wisconsin," added Mr. Ryan, "speak- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN, 177 
 
 ing here in my voice, rely upon the justice and integrity of this court. 
 They ask you to give here true and honorable judgment, article by 
 article, fact by fact. As I said in their name in the beginning, if inno- 
 cence be here, dishonor no hair of the defendant's head. If guilt be here, 
 suffer no one act of guilt to go unpunished, to disgrace the fair name of 
 the state for all time. Article by article, fact by fact, give true and 
 faithful judgment. Vindicate the holy name of public justice. Purify 
 the temple of the law. Say to this judge at your bar: 'You are un- 
 worthy to sit at the judgment seat; you have abused, dishonored and 
 polluted it; you have made it the seat of passion and vice and guilt; 
 you can no longer profane it; go forth from it.' 
 
 "And if you do so, I say to you, in answer to all the threats which 
 guilt has dared to make here to justice, to all the tornadoes of opinion 
 which have been. threatened here against all who act in bringing cor- 
 ruption to the constitutional judgment of the people, there will come 
 forth throughout the length and breadth of this state a voice of hon- 
 orable approbation, the echo of the pulsations of the great, honest, pure 
 heart of this people; not insulting fallen guilt, but vindicating the judg- 
 ment of truth upon crime; consecrating in the popular heart a just 
 judgment — a judgment vindicating the majesty of the law, the maj- 
 esty of truth, the majesty of right." 
 
 From these somewhat extended extracts, taken almost at random 
 from Mr. Ryan's argument, the reader, we doubt not, wiU conclude 
 with us that, for its power, its comprehensiveness and its lofty eloquence, 
 it ranks with the greatest efforts of the kind on record. 
 
 Mr. Ryan continued his residence in Milwaukee until the period of 
 his death, except when under the necessity of living at Madison in the 
 discharge of his duties in the supreme court, hereafter to be more par- 
 ticularly mentioned. 
 
 In the early part of March, 1854, a fugitive slave case greatly excited 
 the people of Wisconsin. A brief description of the capture of a slave 
 named Joshua Glover, of his rescue and of the proceedings which fol- 
 lowed, resulting in the arrest, conviction, and imprisonment of Sherman 
 M. Booth have already been seen in Chapter II. The owner of the 
 
178 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 slave, B. S. Garland, of Missouri, employed Mr. Ryan as attorney for 
 the prosecution. It is needless to say that he sustained his reputation 
 as an able lawyer, although on the unpopular side of the case. 
 
 Although an uncompromising democrat in his political faith, yet 
 Mr. Ryan could, when occasion required, rise far above all the tram- 
 mels of party into the purer atmosphere of patriotism. An example of 
 this is furnished by his course in the celebrated case of Bashford vs. 
 Barstow. On the 7th day of January, 1856, William A. Barstow took 
 and subscribed an oath of office as governor of Wisconsin. But his op- 
 ponent at the polls — Coles Bashford — decided to contest his right to 
 the office. The grounds for the contest were alleged false returns made 
 in several instances. Mr. Ryan was retained by Mr. Bashford. The 
 case ended by the supreme court awarding the office to the latter. 
 Ryan, with many others of his party, were indignant that one not elected 
 should be installed in the office of governor by his party associates. As 
 the most distinguished counsel and eloquent advocate of the party, he 
 stepped boldly to the front, denounced the wrong and outrage in the 
 most scathing invective, and successfully conducted the legal proceed- 
 ings necessary to right the wrong and vindicate the constitution and 
 the rights of the people of the state. His action resulted in placing a 
 political opponent in the chief executive chair of the state; but it was 
 a triumph of truth and right over an attempted fraud, and a vindication 
 of the right of the people to have their voice respected. This was his 
 chief reward.* 
 
 *The chief contention on behalf of Barstow was that the question of his right to 
 the office of governor had been conclusively settled by the state board of canvassers, 
 and that the supreme court could not go behind the certificate of election issued pur- 
 suant to the determination of that board. It was also contended that the court had 
 no jurisdiction of quo warranto in such a case. Ryan said: "In this world there 
 have never been but two kinds of governments — a government of force without law, 
 and a government of law without force. In the main, the governments of the world 
 have been governments of force without or above law. We complain of and criticise 
 and grumble at our system of government. The truth is, it is far above us. We are 
 not educated up to it within a century. Here the law is the mere letter. There are 
 ■ no embattled armies to enforce it. It is a mere word, acting by its own 
 vitality. How shall this system be preserved? Only by the universal submission of 
 all men, high and low, strong and weak, the highest official as well as the humblest 
 member of the community, to that simple letter paramount and supreme." 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 179 
 
 In 1862, when war was upon us, when miUtary arrests at the north 
 of southern sympathizers were frequent; and when the writ of habeas 
 corpus, if not suspended, was at times disregarded, the democratic state 
 convention met, and Mr. Ryan presided as chairman of a committee of 
 four to draft an appeal to the people of Wisconsin, which is known as 
 the "Ryan Address," which was adopted by the convention. It de- 
 nounced, in the severest terms, secession and sustained the war for the 
 suppression of the rebellion; but it attacked what it called the arbitrary 
 acts of the administration. Public opinion was generally denunciatory 
 at the north as to the propriety and policy of this "address." 
 
 "The defeat of the democratic party in i860 has been followed," said 
 Mr. Ryan, "by the revolt of several of the states from the Union, and 
 by the present terrible civil war, because it was defeated by a secessional 
 party. We reprobate that revolt as unnecessary, unjustifiable, unholy. 
 Devoted to the constitution, we invoke the vengeance of God upon 
 
 John W. Hinton, a long-time friend of Mr. Ryan's, has said in a public address 
 on the latter that Ryan's argument in Bashford-Barstow case disclosed his honesty 
 and personal superiority over party spirit or its influences; and never did a party re- 
 ceive a worse flagellation at the hands of a brother inember than did the upholder's, 
 the aiders and abettors of the Barstow frauds receive from him. His lashings were 
 merciless, while his indignation knew no bounds; the denunciation of those who 
 defended those frauds was fearful; the force of his invective, the caustic charac- 
 ter of his comments on the conspirators had never been equaled, their like had never 
 been heard in the supreme court room or elsewhere in this state. A part of the 
 peroration of his closing argument is given: Here we find men holding official sta- 
 tions privy to a well established fraud and forgery, and we are told the attempt to ex- 
 pose and right the wrong is a dangerous attack upon the independence and co- 
 equality of a sovereign department of the state government. What is popular govern- 
 ment worth if these things are to be? What is the condition of public morals in this 
 state if such things are tolerated? It is a grievous reproach on the whole state, a 
 bitter and terrible reproach that any man can be found to claim the meanest and low- 
 est office — even that of fence viewer or dog killer — on such frauds as these. Office 
 has no such charms as to counterbalance such contamination. I would rather be the 
 tenant of any cell in any jail of this state than to hold any office, even the highest 
 in the gift of its people — the highest in the gift of the world — on such frauds as 
 these. I would rather surrender my citizenship — I would prefer to surrender it vol- 
 untarily — but I would surrender it, if there were no other way, by the commission of 
 some crime — not too bad — rather than hold an office by so rotten or base a title as 
 this. When it comes to pass that office is held on such a basis, it is an insult, a loud 
 and crying insult to the public morality of the people of the state. What should we 
 say of the moral sense of a people where men and women were permitted to walk 
 
l8o HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 all who raise their sacrilegious hands against it, whether wearing the 
 soft gloves of peace or the bloody gauntlets of war. 
 
 "Congress has declared," says Mr. Ryan further, "the war is waged 
 by the government of the United States, not in the spirit of conquest or 
 subjugation, nor for the purpose of overthrowing or interfering with the 
 rights and institutions of the states, but to defend and maintain the su- 
 premacy of the constitution, and to preserve the Union with all the 
 dignity, equality and rights of the several states unimpaired, and that as 
 soon as these objects are accomplished the war ought to cease. Thus 
 carried on, the war is not only expedient but necessary, not only justi- 
 fiable but holy. It is a defensive war. It is a war of self-preservation. 
 Disunion, once successful, would be a recurring evil, and instead of 
 leaving a northern union and a southern confederacy, would continue 
 its destructive career until all the states would be broken and dissevered, 
 until the whole country would be distracted by petty sovereignties and 
 
 naked in the public streets? It is an idea which the decent moral sense of the 
 community will not tolerate. It would be an insult to that sense of decency to toler- 
 ate such a thing. But it is a greater insult to the moral sense of the people for a man 
 to walk abroad, clothed with the ermine of office, stinking and rotten, and reeking 
 with corruption and foul with vermin like this. If there be a man in the state outside 
 of those engaged in it who sympathizes with or is ready to countenance such cor- 
 ruption and fraud, I am ashamed for humanity that it is so. I can conceive to what 
 lengths political madness may carry a man, but I cannot conceive how men can con- 
 sent to roll in such corruption as this. I would rather be a dog and wear an honest 
 man's collar around my neck than do it. 
 
 Mr. Ryan was sharply criticised by prominent men in his party for appearing 
 on behalf of Mr. Bashford in the case referred to. This roused him to an outburst of 
 indignation, and, as he made a personal explanation, it was evident, that he felt his 
 honor impugned and assailed by the bare suspicion that he would let his party pro- 
 clivities swerve him from his fealty to his client, or, that to sustain his party, he would 
 sanction a political wrong; with that peculiar shaking of his head and a rapid move- 
 ment of his right hand he said in concluding his remarks on this point: "I am a 
 democrat. I was almost born a democrat. My appearance here on the part of a 
 Shanghai (the republicans were called Shanghais at that time) client has led to some 
 remarks. I am not aware that I have any general retainer from the democratic 
 party,'' then pausing for a few seconds as if to fully inflate his lungs in order to give 
 a full blast of indignant anger and send the last sentence seething hot at those before 
 him, in an almost sepulchral tone he slowly, but with deep earnestness, said: "If to 
 keep with my party all principle must be sacrificed, if I cannot be true to honesty, 
 true to truth, without losing caste with my party," another pause, "then the party 
 may go." 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. l8l 
 
 wasted by petty warfare. We cannot calmly contemplate disunion. We 
 know and love the blessings of union; but no human eye can penetrate 
 the dark and terrible future which lies beyond the grave of the constitu- 
 tion. The war for the preservation of the constitution has all our sym- 
 pathies, all our hopes and all our energies. 
 
 "But we have a right to demand — it is our duty to demand — that 
 this war be carried on by the government for the constitution alone, 
 and under the constitution alone. To that end, amongst others, we re- 
 tain our political organization, and will use our best efforts from time 
 to time and at all times to regain for the democratic party, under the 
 forms and sanctions of the constitution, the control of the legislative and 
 executive departments of the government of the United States. 
 
 "In the meantime war must be carried on and sustained with all the 
 energies of the United States and the people thereof. No blood or 
 treasure is too dear a price to repurchase the Union inherited from our 
 fathers and to transmit it unimpaired to our children." 
 
 Mr. Ryan held the responsible office of city attorney for the city of 
 Milwaukee in 1870, 1871, and 1872. He never sought oiifice and never 
 held any outside of his profession, except his membership of the first 
 constitutional convention. 
 
 "In his practice at the bar," afterward said Judge Orsamus Cole, "he 
 was engaged in the trial of many important civil and criminal causes, 
 and in his management of them he easily established his right to stand 
 in the first rank of his profession. I could readily mention many an 
 argument made by him at the bar of this (the supreme) court (of Wiscon- 
 sin) since I have occupied a seat upon the bench, which seemed to me to 
 be marked with the highest literary ability and excellence, great felicity 
 and elegance of language, wonderful vigor and clearness of logic, all 
 illustrated by a wealth of learning and the most comprehensive discus- 
 sion and grasp of legal principles." 
 
 On the 17th of June, 1874, the office of chief justice of the supreme 
 court of Wisconsin became vacant by the resignation of Luther S. 
 Dixon. The vacancy was filled by the governor of the state, who ap- 
 pointed Mr. Ryan to fill the office until the next election. In April, 
 12 
 
l82 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 1875, Mr. Ryan was elected without opposition for the unexpired term 
 and for the full term of six years, which if he had lived, would have ex- 
 pired on the first Monday of January, 1882. On receiving his commis- 
 sion he is reported to have remarked: "This is the summit of my am- 
 bition; this is the place to which I have looked; but it has been so de- 
 layed that I have ceased to expect it." 
 
 "He came to this great place (the office of the chief justice of Wis- 
 consin)," afterwards said W. F. Vilas, "as every one should who is 
 worthy to occupy it. He came in the ripeness of years and experience, 
 after a long life of labor at the bar. He came laden with profound 
 knowledge of the science he was to administer. He came not from an 
 obscure corner to sit in judgment on arguments greater than his under- 
 standing; he was pushed by no skillful intrigue into a shameful reward 
 for mere party service; but sought and taken from the topmost place 
 of professional leadership, which by merit he had worthily won, he came 
 fit to govern and control, where for so long he had confessedly led. 
 He came to the judgment seat with an honorable ambition as to the 
 crowning glory of a devoted professional life, but he came reverently, 
 with an exalted sense of the responsibilities which he assumed, and a 
 noble devotion of all his faculties and strength to the performance of its 
 duties. He came to rest on no pillow of repose, but to toil and build, 
 that he might still higher elevate the court and the law and exalt justice 
 on earth." 
 
 As a judge, he was always patient, painstaking and industrious, lis- 
 tening attentively to counsel and frequently putting to them questions 
 tending to elucidate points in discussion, and by his friendly and quiet 
 manner, encouraging the younger members of the profession to present 
 their views upon all points suggested. On the bench no ill-temper was 
 ever manifested by him to check or freeze out counsel from fully present- 
 ing their points and arguing their cases.* 
 
 *Justice Cole said, in response to tlie resolutions and addresses presented to the 
 court in commemoration of Chief Justice Ryan that "while the chief justice had a 
 susceptible temper, was quick in his apprehension and strong in his convictions, he 
 was not hasty in judgment, nor was he — as is generally supposed — obstinate in his 
 opinions, or unwilling to yield to the views of others. The privacy of the consultation 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 183 
 
 The health of Judge Ryan had been very precarious for two years 
 before his death, and once or twice he had been, seemingly, beyond 
 mortal aid; but for several of the last months of his life his health had 
 been materially improved, so that he was able to attend to his official 
 duties. On the loth of October, 1880, he presided in the supreme court 
 nearly the entire day. But when he left the portals of the court on that 
 day, it was to enter them no more forever. Four days previous, in 
 
 room is justly deemed sacred. Its deliberations are not to be disclosed except for 
 sufficient cause. It is, however, but simple justice both to the dead and living, that I 
 refer in a few words to what transpired in the consultation room, and to the bearing 
 of the chief justice towards his associates there. And, therefore, in order to correct 
 a popular misapprehension upon this point, I will say that in consultation, while 
 engaged in the labor of considering and deciding causes, the deportment of the chief 
 justice towards his associates was uniformly kind, respectful and courteous. No irri- 
 tating word, no offensive language, fell from his lips while thus employed. He often 
 made up his mind quickly how a cause should be ruled, but he was not impatient of 
 hesitation or opposition on the part of others. On the contrary, he listened with 
 attention to whatever anyone had to say adverse to his views, and often readily came 
 to their conclusion when it seemed supported by the better reason or authority. 
 Indeed, I can say for myself, and I trust also for my associates, that I never expect 
 or desire to be treated in consultation with more consideration and respect than was 
 shown me by the chief justice while engaged in the work of examining and deciding 
 causes in the consultation room. There he was the able, calm, dignified judge, freely 
 exchanging views and discussing all questions of law and fact with the manifest desire 
 of reaching a right result. If any disagreements ever arose between us — as was some- 
 times unhappily the case — they grew out of matters entirely foreign, or merely inci- 
 dental, to the proper business of the court." 
 
 Judge Cole said also: "We have from his own lips his estimate of what consti- 
 tuted a great and good judge. If it is not within the possibilities of human nature 
 to reach the exalted standard he gave us, I believe he made an honest efifort, in his 
 official conduct, in the decision of causes, to come as near as he could to attaining it. 
 He once said: 'Summary judgment is judicial despotism. Impulsive judgment is 
 judicial injustice. The bench symbolizes on earth the throne of divine justice. 
 The judge sitting in judgment on it is the representative of divine justice, but has 
 the most direct subrogation on earth of any attribute of God. In other places in 
 life, the light of intelligence, purity, of truth, love of right, firmness of integrity, 
 singleness of purpose, candor of judgment, are relatively essential to high beauty of 
 character. On the the bench they are the absolute condition of duty — the condition 
 which only can redeem judges from moral leprosy. . . The judge who palters 
 with justice, who is swayed by fear, favor, affection or the hope of reward, by per- 
 sonal influence or public opinion, prostitutes the attribute of God and sells the favor 
 of his maker as atrociously and blasphemously as Judas did. But the light of God's 
 eternal truth and justice shines on the head of the just judge, and makes it visibly 
 glorious.' " 
 
i84- HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 taking a ride, he encountered a severe cold, the consequence of which 
 became, day by day, more serious, and resulted in disease which baffled 
 the skill and prescriptions of eminent and devoted physicians, and finally 
 overcame the vigor and strength of his constitution, and in the early 
 morning of the 19th his invisible spirit took its flight, leaving his mortal 
 remains to the last sad oiflces of his numerous sui;viving friends. 
 
 "It is my sad duty," said Governor William E. Smith, in proclaim- 
 ing, on the 19th of October, 1880, by an executive order, the death of 
 Judge Ryan, "to announce to the people of Wisconsin that, in the mys- 
 terious providence of God, the life on earth of the Hon. Edward G. 
 Ryan, the distinguished chief justice of our supreme court, is ended. 
 He departed this life this morning, at about five o'clock, unexpected 
 by his family and friends, but evidently not by himself. His great mind 
 remained strong and serene to the last, in full comprehension of his 
 physical condition, and in apprehension and consciousness of death, 
 and he expressed clearly his last wishes to his family and his abiding 
 Christian faith and hope. 
 
 "A great man, an eminent citizen and a high officer of the state, 
 to the sore bereavement of his family and friends, and to the irreparable 
 loss of the public service, has fallen at his post, with the spotless ermine 
 of a great judge still upon his shoulders. Less than one week ago he 
 presided on the bench, and the bar of the state interested in the present 
 call of the calendar, stood before him in full confidence and hope that he 
 would yet long remain to dignify his high judicial office by his tran- 
 scendent abilities, learning and refined sense of justice. But he has 
 suddenly disappeared from amongst the living, and the high places 
 which once knew him will know him no more forever. For about 
 forty years he has been especially prominent in Wisconsin and else- 
 where, widely known as one of the ablest and most eminent in his pro- 
 fession, and in many offices of trust and honor, and he has now closed 
 his distinguished career by making especially eminent the office of chief 
 justice of our supreme court, to which he was called by the unanimous 
 vote of the people. To its high and responsible duties he has devoted 
 his great learning, the clear judgment and the developed resources of one 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 185 
 
 of the greatest minds of the age, as the mature fruits of his great experi- 
 ence and of his long and distinguished hfe. There remains no one who 
 can in all respects fill the high place he has left vacant, and long years of 
 time in our future history will but illustrate by memory and compari- 
 son, his unequaled abilities as a lawyer and a judge, and make still more 
 conspicuous and indelible his impress upon the laws, politics and juris- 
 prudence of the state. 
 
 "The people of Wisconsin will deeply lament his death and sympa- 
 thize with his bereaved family and friends. 
 
 "As a mark of respect to his memory, the supreme court room will 
 be suitably draped in mourning, the flag upon the capitol displayed at 
 half-mast, and, on the day of the funeral, the state departments will 
 be closed." 
 
 "Chief Justice E. G. Ryan of the Wisconsin supreme court," said the 
 Milwaukee Sentinel of October 20th, "who died yesterday, was one of the 
 most remarkable men the state has ever known. He played an important 
 part in many of the notable afifairs of the state, and Tils great genius and 
 extensive learning challenged the admiration even of those who were 
 sufiferers by his eccentricities. Few men have possessed a more brilliant 
 mind than that of E. G. Ryan; his unbounded fertility of resources, his 
 command of language, his power of invective, were the wonder of the 
 profession and the public. 
 
 "As a lawyer, Judge Ryan could look upon but few equals. His 
 keen mind grasped easily the salient points of the most complicated 
 case, and he was able to present them clearly and effectively. . . . 
 When he was educated in politics men were divided by a plainer line 
 than now; there was none of the vagueness which marks political ques- 
 tions in these times, and it is no more fair to judge him by the standards 
 of to-day than the severe republicans of that time, who would be 
 looked upon now as fanatical. He was an old school democrat to the 
 last. . . Of his strength, his great ability and his judicial purity 
 there can be no difference of opinion." 
 
 The day after the death of the chief justice the Dane county (Wis- 
 consin) bar association met and appointed pallbearers to conduct the 
 
l86 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 departed judge to Milwaukee where he was to be buried. At the place 
 last named his death occupied the minds of the members of the bar to 
 the exclusion of any other considerations. The courts were adjourned 
 as a mark of respect to the deceased. The Milwaukee county bar asso- 
 ciation met and appointed committees to frame resolutions of respect 
 to the memory of the departed and to make arrangements for fitting 
 ceremonies at his burial. The remains, under escort of the governor 
 (the funeral being conducted by the state), the state officers, judges of 
 the supreme court, the Madison bar, the family of the deceased, a com- 
 mittee of twenty of the Milwaukee bar, and professional and other prom- 
 inent citizens of Madison and various points in the state, left Madison 
 at half past eight the next morning (October 22), for Milwaukee, where 
 they arrived at half past eleven. The Milwaukee bar, in a body, joined 
 the funeral cortege at the Union depot. 
 
 The funeral procession moved from the train to St. James' church 
 where the funeral service was to be held. The casket was placed in the 
 vestibule of the church and uncovered, so that the many old friends of 
 the departed chief justice might view his face. 
 
 At half past twelve o'clock the short, impressive service of the Epis- 
 copal church was read by Rev. John Wilkinson, and the choir sang 
 "Nearer My God to Thee," the casket was borne from the church to 
 the hearse, and the funeral cortege took its way toward the Forest 
 Home, where the lifeless form was laid down to its last resting place. 
 
 On the 9th day of November following the death of the chief justice, 
 the supreme court of Wisconsin met, pursuant to a previous adjourn- 
 ment, for the purpose of taking action and making suitable record 
 touching his decease. There were present Justices Cole, Lyon, Taylor 
 and Orton, and a large number of the bar of the court, and of other 
 citizens were in attendance. The court was very ably addressed by 
 William F. Vilas, A. R. R. Butler, T. R. Hudd and James G. Jenkins. 
 Resolutions of the Milwaukee county bar, and by the Dane county bar 
 were presented and read. Mr. Justice Cole, in behalf of the court, made 
 a feeling response. It was then ordered by the court that the resolu- 
 tions presented, together with remarks of gentlemen accompanying the 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 187 
 
 same, be entered at length upon the record and published in the reports. 
 
 Chief Justice Ryan was five feet eleven inches in height, and when 
 in health weighed one hundred and eighty pounds. Neither of robust 
 nor delicate frame, he was muscular, sinewy, and capable of long con- 
 tinued labor. His movements were quick and his step elastic; his head 
 projected beyond his body, giving him the appearance of stooping; it 
 was only the appearance, however, as his body was erect. His com- 
 plexion was florid, his hair light, slightly tinged with auburn, his eyes 
 combined the mingled hues of blue, gray and black; they were large, 
 brilliant and expressive, and, together with his complexion, indicated a 
 sanguine, bilious temperament. 
 
 The mind of Judge Ryan was an aggregation of superior powers, 
 harmonious and yet diverse. His prepared lectures are finished models 
 of literary composition, while his written opinions in the reports are the 
 perfection of rhetorical style. His extemporaneous addresses have few 
 equals as mere exhibitions of rhetoric. 
 
 His speech was always fluent, expressive and precise; he never hesi- 
 tated for a word or phrase, or used any which were not apt for the pur- 
 pose. In logical strength and in that mental power of quick and search- 
 ing discrimination which is the highest manifestation of a purely in- 
 tellectual ability, he had few superiors. In the rhetoric of invective, and 
 in rapid, terse and impressive argument, he possessed a power appar- 
 ently exhaustless. 
 
 It is the testimony of one who knew him* well that "the life of Judge 
 Ryan was one long struggle — a struggle against himself, a struggle 
 against untoward fortune, a struggle against infirmity — which the world 
 knew but little of and ahowed not for. And so, to most men he seemed 
 
 *Jaraes G. Jenkins. Mr. Ryan once said: "We live in a world of fractional 
 truths, of judgments resting on fractional premises. Perhaps this is not more manifest 
 than in our estimate of men's lives. We are prone to judge their conduct by a fixed 
 standard, without much reference to the conditions under which they act; to exact of 
 all like results in like positions, with little consideration for the peculiar character of 
 each, which essentially enters into and qualifies his work. We make more (undue) 
 allowance for the intelligence of men, forgetting that character is a greater power 
 in life than mere intellect. Philosophically considered, ability includes character as 
 well as intellect or knowledge." 
 
i88 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 arrogant and proud, whereas, to those who knew him best, he was, 
 when acquit of infirmity, companionable and considerate. He possessed 
 none of the arts of the courtier. He would neither bow subservient to 
 power, nor be patient in the presence of wrong and oppression. Like 
 the oak of the forest, he could break, but he could not bend. 
 
 "Power might crush him, it could not silence him. So he was often 
 the champion of the lowly against the powerful — I think out of abhor- 
 rence of the oppressor rather than from sympathy to the oppressed. He 
 hated the wrong more than he loved the victim of the wrong." 
 
 "Judge Ryan's belief in Christianity and the immortality of the soul," 
 says a writer in the Milwaukee Sentinel of October 29, 1880, "was the 
 most prominent trait of his character. Speaking with him once on 
 immortality, he said: 'Man in this life may be likened to an unborn 
 babe, who no doubt feels a dim consciousness of existence, but must be 
 born into the world ere his vision is opened to its light and to life. So 
 must the soul of man pass through death to that spiritual state where 
 the clouds and the doubts of earth vanish before a clear comprehension 
 and more quickened vision.' Knowing him to be a firm believer in the 
 divinity of the Savior, I once asked him what proof of Christ's divinity 
 could be given outside of revelation. He arose, and with an earnestness 
 I shall never forget said: 'About the time that Cicero, the grandest 
 man of the Roman empire, gave to the world the labored production of 
 his great intellect, there lived an unlettered young man in the province 
 of Galilee, who, before he was thirty-three years old, spoke the sermon 
 from Mount Olive. Eighteen hundred years have passed, and the in- 
 spiration of the Sermon on the Mount rules in every civilized land while 
 Cicero's orations find place only on a few musty shelves. If this is not 
 divinity, then it certainly is a human miracle.' " 
 
 Mr. Ryan was a man of profound religious emotions. He always 
 attended church. Mr. Asahel Finch learned at Chicago, from some of 
 his intimates, that he was designed for the Catholic priesthood by his 
 parents when they planned his education. He worshiped at the Epis- 
 copal churches while living in ^Milwaukee. He was for some years a 
 communicant of St. John's church. In late years he attended Christ 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 189 
 
 church, on Fourth street. He always kneeled as he entered church and 
 assumed all the pious forms of worship. At times he read the services at 
 Christ church in the absence of the rector. 
 
 He frequently conversed on religious subjects.* He expressed great 
 admiration of the apostle Peter, as a man of more energy, higher char- 
 acter and greater brain than the balance of the apostolic fraternity. He 
 once took a part in one of the excited discussions in which Parson Rich- 
 mond was conspicuous, and was on the side of the pugnacious clergy- 
 man. "I never so much esteem my Divine Master," he said in debate, 
 "I never feel such a nearness to the Nazarene, as when I read that in his 
 exalted and righteous anger he scourged the money changers with cords 
 and drove them from the temple." 
 
 He was once arguing a case in the old supreme court room, in 
 Madison, a trivial case, with only the judges, a half dozen lawyers, the 
 state librarian, and a few loungers about, "audience fit though few." 
 Some allusion in the discussion led him to refer to the Lord's prayer, 
 and he at once launched into a most beautiful, eloquent and affecting 
 eulogy of that form of devotion, the divine sweetness of which he 
 described, and in radiant terms extolling the loveliness of its author. 
 Above all, he eulogized that portion of the prayer which asks "lead us 
 not into temptation," which he paraphrased in all the pathetic forms of 
 which language was capable, and which he said was commended to us 
 as a form of petition by one who knew the frailties of our nature, the 
 attractions of guilty delight, and the strength of the impulses that lead 
 to wrong. The few hearers listened spellbound to his matchless elo- 
 
 *Judge Cole, on the occasion referred to in a previous note, said tliat in his inter- 
 course with the chief justice "conversation more than once has turned upon the sub- 
 ject of the profound mystery which shrouds man's future destiny, and we liave con- 
 sidered together some of tlie arguments drawn from the analogies of nature, which are 
 usually relied on to prove the immortality of the soul. I well remember that on one 
 occasion he put an end to our conversation on these intensely interesting questions, by 
 uttering with great solemnity of manner substantially this language: 'As for myself,' 
 he said, 'I know I possess a soul — an intellectual and moral part which is immortal. 
 I believe that I shall have a conscious personal existence after death; that I shall meet 
 beyond the grave friends and those I loved here, that I shall know them and they 
 will know me. All this I as firmly believe as I believe that I shall see the sunlight to- 
 morrow if I live.' " 
 
190 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 quence till the episode closed, when he resumed the argument of some 
 stupid points in the dry case before him. 
 
 The moral character of the chief justice was pure and unsullied by 
 the breath of suspicion. He had, as we have already shown, a profound 
 reverence for the Deity, and possessed that spirit of humility and devo- 
 tion to religious duty which has ever characterized the Hves of the truly 
 great. 
 
 The following incidents connected with the life of Mr. Ryan and ex- 
 tracts from his writings are from the pen of J. H. Kennedy, and are 
 borrowed (with permission) from vol. 6 of the Magazine of Western 
 History. From an appreciative article published by an acquaintance 
 soon after his death we learn that he was severely exact in the fulfill- 
 ment of minor things. Once, when a young man, an eminent lawyer of 
 New York gave him a letter with an injunction to deliver it only into 
 the hands of the person to whom it was addressed. Going to the house 
 of that gentleman, the boy found that he was absent at a club dinner, 
 and not likely to soon return. No entreaty or argument of the wife could 
 win the document from his possession, and he remained in waiting until 
 three o'clock in the morning, and delivered it into the proper hands. 
 The same authority remarks: "Perhaps his most marked characteristic 
 was strict adherence to all the rules of politeness. I have always con- 
 sidered him incapable of deliberate discourtesy, and am certain that he 
 never forgave a breach of politeness. He had a horror of what is 
 termed bluntness, and said: 'The most insulting boor always prefaces 
 his impertinence with such expressions as to be candid with you, or, if 
 I must speak the truth to you.' I have seen him exceedingly anxious 
 to learn where a client was educated, and, though the person had several 
 long interviews with him, he never found out. He would not ask a 
 question he deemed impertinent. I was once requested to write a com- 
 munication upon a public question. I consented on condition that 
 Mr. Ryan correct it. The article was written and placed in his hands. 
 He walked to ray place the next day, fully a mile, in the hot sun, and 
 drawing the manuscript from his pocket said, T have carefully read this 
 article and approve of it, excepting one correction, which you only can 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN.. 191 
 
 properly make.' Thinking he had found a grave error in the article, 
 I asked him what was the correction suggested, when he pointed out 
 the omission of the word 'and' in a sentence which, no doubt any 
 compositor would supply, but which his keen sense of courtesy would 
 not allow him to add. I interlined the exasperating conjunction, when 
 he carefully took the manuscript and returned." 
 
 Another characteristic anecdote has been thus related: The quaint 
 wisdom of the bench has never been more wittingly uttered than by the 
 late Chief Justice Ryan of Wisconsin, in deciding that a lawyer appointed 
 to try a case in place of a prejudiced judge had no authority, for the 
 reason that the constitution of the state vested all judicial power in 
 certain courts, and these could not delegate their authority. He cited a 
 case from Hobart in point, which says: All kingdoms in this constitu- 
 tion are with the power of justice, both according to the rule of law and 
 equity; both of which being in the king as sovereign were after settled in 
 several courts, as the light being first made by God was after settled in 
 the great bodies of the sun and the moon. 
 
 After questioning the accuracy of Hobart's "constitutional law, both 
 celestial and terrestrial," Judge Ryan said: Taking the sun and moon 
 according to the common acceptation and following Hobart's metaphor, 
 the circuit judge might be likened to the sun of his court, in this cause, 
 and Mr. Cole (the lawyer who tried the case) to the moon, after the 
 fashion of a juridical depute in Scots' law, shining with delegated juris- 
 diction. But the constitution mars the comparison. For by the astro- 
 nomical constitution the sun appears to take power to delegate his func- 
 tions of lighting the world, while the state constitution tolerates no such 
 delegation and appoints a sun only, without any moon, as luminary of 
 the circuit court, whose "gladsome light of jurisprudence" must be 
 sunshine, not moonshine. 
 
 That two such determined and vehement men as Judge Ryan and 
 Senator Carpenter could long live together in the close and mutually 
 dependent relations of a law partnership, without friction, is what might 
 be safely called a natural impossibility; and yet their connection pro- 
 duced fewer thunderstorms than their associates of the bar expected. 
 
192 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 One incident involved in these close business relations is told with great 
 gusto by the lawyers of Milwaukee, but has never, so far as I can learn, 
 seen the light of print. There was employed in their office a gentle- 
 man of good natural and mental qualities, but to whom Judge Ryan, by 
 one of those unaccountable freaks of his temper, had taken so intense 
 a dislike that he could not bear to see him enter the room. The clerk 
 was more especially under the direction of Mr. Carpenter, and on one 
 occasion, while the last named was absent in court at Beloit, he en- 
 tered Judge Ryan's room, and asked him if he had any instructions to 
 give concerning the office work. 
 
 "Yes, sir, I have," was the answer, as Judge Ryan turned to his 
 desk and hastily wrote a few lines. Sealing the note and addressing it, 
 he handed it to the clerk and said, "Take that to your master as soon 
 as you can." The clerk seized his hat and coat, and, rushing to the 
 depot, made his train just as it was moving away from the platform. 
 Reaching Beloit in due season he rushed into the court room where 
 Senator Carpenter was engaged in a case, and handed him the note 
 with the explanation that it was a matter of immediate importance. 
 Breaking the seal Mr. Carpenter read: 
 
 Milwaukee, , i8 — . 
 
 Matt. H. Carpenter. 
 
 Dear Sir: I want you to keep your lackey out of my office. 
 
 Yours respectfully, 
 
 E. G. RYAX. 
 
 When engaged in the preparation of legal briefs or opinions Judge 
 Ryan would walk about the room, slowly dictating each sentence, and 
 seldom changing a word or phrase when once uttered. He was as 
 careful in the dictation of his punctuation as his language, and so much 
 importance did he attach to the construction of sentences, that he often 
 said he was never satisfied of the correctness of his opinion on any legal 
 question "until he had reduced it to the test of accurate language." 
 
 For his profession, its dignity, its honorable position in the regard 
 of the people, its share in the administration of justice, and its claim for 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 193 
 
 due recognition on part of the other learned professions, he had the 
 highest regard and care; and nothing would so deeply stir his wrath as 
 a flippant or ungenerous attack upon it. 
 
 This regard held by Judge Ryan for the almost sacred commission of 
 the law — as it appeared to him — was set forth fully in the address de- 
 livered by him before the law class of the university, on June 22, 1880.* 
 The power and eloquent logic of that efifort can hardly be conceived by 
 those who have not perused it. It can, in some respects, be regarded as 
 the finest specimen ever given of his wonderful command of words, and 
 of the riches that lay in the deep recesses of his thought. It is not merely 
 an address for lawyers, but for all who have love of justice or a desire 
 for truth — for all who care to hear what a master of his profession can 
 find to say in its honor and defense. It is regretted that only a few ran- 
 dom quotations can be given, rather than the address in full. To the 
 young men before him he said: 
 
 I welcome you to no tranquil life, no cultured ease. I welcome you 
 to a calling of incessant labor, high duty, and grave responsibility. If 
 our profession be, as I beheve, the most honorable, it is also the most 
 arduous, of all secular professions. Duty is the condition of all dignity. 
 . . . Law in its highest sense is the will of God. . . . There is. 
 no incompleteness, nO' insufficiency, no casus omissus in the divine law. 
 It needs no revision, no office of construction. From the beginning, 
 it is always the same, with no variableness, neither shadow of turning. 
 It is adequate to all conditions, all changes. It is all-sufiicient for the 
 government of human society. The problems of society and its troubles 
 spring, not from insufficiency of law, but from disregard of the law. 
 The law is adequate to all the exigencies of society, all its chances and 
 changes; but obedience to the law is essential to the order of society. 
 . As man has labored and failed and erred in his compre- 
 hension of divine law, so has he therefore labored and blundered and 
 miscarried his legislation. Perhaps in no other aspect in life has he 
 more plainly manifested his slow and uncertain progress in civilization, 
 
 *The address was originally delivered to the graduating class of the college 
 of law June 16, 1873; it was re-delivered on the date given in the text. It has been 
 printed twice in pamphlet form, and there is yet a demand for copies of it. 
 
194 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 or proved his own insufficiency for himself, his dependence on wisdom 
 and power higher than his own. The history of human legislation is 
 a record of error and presumption. From time to time man has estab- 
 lished code upon code as the perfection of human wisdom; from time to 
 time he has had to modify and to change each; from time to time code 
 upon code has been lost in the revolution or anarchy which surely 
 awaits all systems of legislation not founded on the*divineiaw. . . 
 Young gentlemen, this is the profession which you have chosen, to 
 the discharge of whose active duties you are this day called. This ad- 
 dress has been in vain if you have not verified the high, arduous and 
 responsible nature of the duties which you are assuming; if it has 
 not made manifest our profession as the noblest and loftiest of purely 
 human callings. There it stands, the profession of the law, sometimes 
 disgraced by error and sin, which are the common lot of all humanity. 
 There it stands, the profession of the law; subrogated on earth, for the 
 angels who administer God's law in heaven. There it stands charged 
 with the peaceful protection of every public right of the state, of every 
 civil and religious right of the people of the state; charged with the 
 security and order of society. . . . The law is a science. It is no 
 mere trade. It is not the road to wealth. . . . 
 
 Of the true duty and ambition of the lawyer, he had these strong and 
 fruitful ideas: 
 
 This is the true ambition of the lawyer: To obey God in the service 
 of society; to fulfill His law in the order of society; to promote His 
 order in the subordination of society to its own law, adopted under His 
 authority; to minister to His justice by the nearest approach to it, under 
 the municipal law, which human intelligence and conscience can ac- 
 complish. To serve man by diligent study and true counsel of the 
 municipal law; to aid in solving the questions and guiding the business 
 of society, according to the law; to fulfill his allotted part in protecting 
 society and its members against wrong; in enforcing all rights and re- 
 dressing all wrongs; and to answer before God and man, according to 
 the scope of his office and duty, for the true and just administration of 
 the municipal law. 
 
 It is impossible to give space to even a synopsis of this remarkable 
 address, and only a sentence can be culled here and there from that 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 195 
 
 which remains — no attempt being made to give connection or due order 
 of arrangement: 
 
 In our profession, character without high intellect is a greater power 
 for good than intellect without high character. 
 
 The strength of a lawyer is in thorough knowledge of legal truth, 
 in thorough devotion to legal right. 
 
 The bench symbolizes on earth the throne of divine justice. 
 
 Every good lawyer's office is a court of concihation. 
 
 The bar does not claim to be the communion of saints. It only 
 claims to be a noble organization of fallible men in a fallible society. 
 
 Behold the pettifogger, the blackleg of the law. He is, as his name 
 imports, a stirrer-up of small litigation; a wet nurse of trifling griev- 
 ances and quarrels. . . . He is a fraud upon the profession and the 
 public; a lawyer among clowns and a clown among lawyers. 
 
 There is a variety of the animal, known by the classic name of 
 shyster. This is a still lower specimen; the pettifogger pettifogged 
 upon; a troglodyte who penetrates depths of still deeper darkness. 
 
 Judicial nepotism strangles the very life of the judicial function, de- 
 poses justice from her own bench, and seats in her place, decked in 
 her robes and masquerading in her semblance, the harlot of profligate 
 family interest; to cozen truth and right, property and honor; to be- 
 tray all that was dear to man, or tends to make life happy or holy; to 
 poison the very bread of life. 
 
 In the battle of life we all stumble, we are all maimed. Few, if any, 
 lay down their arms in that battle, without sense of failure or defeat. 
 
 True progress rests absolutely in man's obedience to the law ap- 
 pointed for him. 
 
 Man, indeed, organized society, but God ordained it. 
 
 Without the light of revelation, man, at his best, gropes painfully in 
 the dark, and sees dim and shadowy visions of the divine order; phan- 
 toms of truth, rather than the truth itself. 
 
 The deep undercurrent of religious thought running through Judge 
 Ryan's nature is suggested in the above. It is also the predominant 
 feature of a lecture delivered by him on "Heresy," in the early part of 
 which he said: 
 
 Heresy belongs not to theology alone. The word is pregnant with 
 
196 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 too shameful and terrible memories of wrong and suffering; the thing 
 has played too potent and- terrible a part in profane history, to be ex- 
 clusively ecclesiastical. Its bloody path is tracked by fire and sword 
 and gibbet through many Christian centuries. It has been too powerful 
 an agent in the temporal fortunes of our race to be overlooked or un- 
 considered in that aspect, by priest or layman, Christian or infidel, jew 
 or Gentile, who tries to read history by the light of philosophy. .... 
 It is often said that Christianity is the great element of modern civili- 
 zation. It is more. Christianity is civilization. It is the essential 
 distinction between the ancient and modern order. 
 
 . . . The Christian revelation gave to man his great charter 
 of freedom and immortality of the soul. It gave him a dignity and a 
 career far beyond his mere animal being. It redeemed him from being, 
 at his best, a polished brute. . . . Christianity has its temporal as 
 well as its eternal uses. It not only drew the veil from eternal truth; it 
 also revealed to man his own nature and relations in life, and founded 
 the highest temporal philosophy. Philosophy has sometimes mistaken 
 it for an enemy and wrestled with it. But whatever in philosophy 
 found a real antagonist in Christianity has died the death of error. 
 
 In this lecture Judge Ryan declared it his purpose to consider his 
 subject "in a purely historical and philosophical view;" which he did 
 with a breadth of vision, depth of thought, and fairness of historical 
 statement that made the address one of the greatest ever delivered 
 from the platform. A companion lecture was that upon 'Taith," 
 which was carried along the same line of thought, and was equally re- 
 markable for its deep and sincere recognition of the Christian, religion. 
 "Faith," he declared, "is a natural necessity as well as duty of man. 
 . . . The callous, gloomy, barren egotism of unbelief is not only 
 isolation; it is, even in a purely human sense, depravity. Man does 
 not believe in truth, because he is not true; in worth, because he is not 
 good. The unbelieving heart is a hermit, secluded, not from the vices, 
 but from virtues, of mankind. . . . History often seems a blind 
 disorder of human folly, and passion, and guilt. Faith looks through 
 the darkness, and sees the manifest finger of God, writing his law in 
 man's capricious career. It is a dread mystery how, from that unfettered 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 197 
 
 free will for good or evil for which every soul born into time must 
 fearfully account to him who gave it, Providence works out its own 
 unerring ends. Man may violate the law of his being, but he cannot 
 interrupt its operation. In his wildest apostasy, as in his most obedient 
 faith, bhndly in both, man's life is all tributary to the will of God." 
 
 Granting Judge Ryan's eloquence as a speaker and reputation as a 
 lawyer and judge, it is needless to say that he was in great demand on 
 the lecture platform. The genius of Dickens had scarcely given "Bleak 
 House" to the world, and "Mrs. Jellyby" had hardly had an introduc- 
 tion to the American public, before his quick eye fell upon her, and 
 the suggestion came into his mind that she might be made to pose 
 before the people in the garb of some sharp and instructive truths. He 
 accordingly carefully measured her, and eventually made her the subject 
 of an oft delivered and ever welcome lecture. It was a skillful but 
 earnest and logical reply to many claims put forward in those days by the 
 advocates of woman suffrage. Mrs. Jellyby is used merely as a vehicle. 
 "Her enthusiasm is singularly patient and far-seeing," is a tribute he 
 pays that much-abused woman, in the opening portion of the lecture. 
 "Through all the mortification of abortive missions, amidst all the cares 
 and troubles of the present mission, in the manifold distraction and trial 
 of her bedlam housekeeping, on the sudden disappointment of her 
 daughter's ignoble dejection, even at the ignominious failure of Borrio- 
 boola Gha itself, she wears unruffled the calm, gentle serenity of her 
 mind and manner, and wraps her patient dignity about her as a gar- 
 ment. And there is neither affectation nor effort in this. It is evi- 
 dently constitutional, a manifestation of the general benignity of her 
 character. There is nothing positively bad in Mrs. Jellyby's disposition. 
 Her sins are all sins of omission. She is a woman of conscience, though 
 her conscience be diseased. Think what we may of her life, to her it 
 is a life of duty. To her own views of duty she devotes herself with un- 
 tiring, uncompromising, unselfish energy. In this her portrait is dis- 
 tinguished in a masterly light from the group of philanthropists about 
 her. Her integrity is unsullied by any limit of their selfish vanity. She 
 is always earnest, always truthful. We may condemn her life, we may 
 13 
 
198 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 rail at her doctrine; it is impossible to regard her with personal dis- 
 respect. Judged by what she is, distinguished from what she fails to do, 
 Mrs. Jellyby has no mean claim as an amiable and upright woman." 
 
 Counting Mrs. Jellyby as "a representative woman," and "a type of 
 the strong-minded woman," the speaker declared that "Mrs. Jellyby is 
 no mere myth," and then proceeds with a personal application of her 
 case to that "class of restless women of all grades of intelligence, discon- 
 tented in a greater or less degree, with the position of their sex in 
 society. \\'ith more or less dignity and force some of these have writ- 
 ten, some spoken, some acted, and some are now writing, speaking and 
 acting, for a reorganization of society in its relation to woman." With 
 a strong common sense, a careful concession of justice wherever it is 
 demanded, and a humor hinted rather than expressed. Judge Ryan then 
 proceeded to a consideration of the claims of woman as at that day ad- 
 vanced. Toward the close he summed up his conclusions in the man- 
 date that while both sexes must abide the future, woman should be 
 educated "in the hope of that future," as "society wrongs both sexes 
 when it denies equal education to woman." But it was in the home 
 circle that woman's true work was to be found. "The heroes of history 
 are not always the saints of civilization. Men write, somewhat boast- 
 ingly, the biographies of the great. Angels record the lives of women 
 like Esther. \\'ith all her sins, the world admires Mrs. Jellyby, but 
 recoils with indignant disgust from her perverted womanhood. The 
 world loves Esther Summerson with reverential love. This the whole- 
 sale moral of our author. These are the uses of Mrs. Jellyby!"* 
 
 *Soon after his judicial duties began Judge Ryan wrote the opinion of the 
 court on the application to admit ^liss Lavinia Goodell to the bar of the supreme 
 court, she having become a member of the Rock county bar. He said this is the 
 first application for admission of a female to the bar of this court. "And it is just 
 matter for congratulation that it is made in favor of a lady whose character raises 
 no personal objection: something perhaps not always to be looked for in women who 
 forsake the ways of their sex for the ways of ours." After discussion which led to 
 the conclusion that there was no authority for the admission of females to the bar 
 of any court of the state, the opinion continues: "And, with all the respect and sym- 
 pathy for this lady which all men owe to all good women, we cannot regret 
 that we do not, we cannot but think the common law wise in excluding women 
 from the profession of the law. The profession enters largely in the well being of 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 199 
 
 Judge Ryan had also commenced a lecture on "The Reign of Me- 
 diocrity," which never progressed beyond a few pages of manuscript, 
 which are now in existence. With two more extracts from speeches 
 made by him upon important occasions, which illustrate his power upon 
 themes diverse from the above, and from each other, we desist from 
 a line of inquiry that is certainly pleasant and full of rich and abun- 
 dant fruits. In his speech in the prosecution of the RadcHfife murder 
 case in 1852, we find this compact statement of truth: 
 
 Life is the gift of God, yet one which any, however weak, may take 
 away, but which not the united power of all men in all countries and of 
 all times can restore. . . . It is not that we crave for the defend- 
 ant's blood that we stand here. We pity him. God knows that we pity 
 him, and those who are connected with him! But we stand 
 here for the blood of the living. It is not for the blood of 
 Ross, but for the blood of everyone in this hall, and - in this 
 community; it is for the blood of those yet unborn, and of all who are 
 to live after us; it is that murder may cease, that men may reflect, pause, 
 turn cowards before they strike down their fellow men; it is because the 
 law of God and the law of man, and the safety and existence of society 
 demand it, that we stand here and urge upon you a conviction of the 
 defendant. 
 
 society; and, to be honorably filled and safely to society, exacts the devotion of 
 life. The law of nature destines and qualifies the female sex for the bearing and 
 nurture of the children of our race and for the custody of the homes of the world 
 and their maintenance in love and honor. And all life-long callings of women, in- 
 consistent with these radical and sacred duties of their sex, as is the profession of 
 the law, are departures from the order of nature; and when voluntary, treason 
 against it. The cruel chances of life sometimes baffle both sexes, and may leave 
 women free from the peculiar duties of their sex. These may need employment, and 
 should be welcome to any not derogatory to their sex and its proprieties, or incon- 
 sistent with the good order of society. But it is public policy to provide for the 
 sex, not for its superfluous members; and not to tempt women from the proper 
 duties of their sex by opening to them duties peculiar to ours. There are many 
 employments in life riot unfit for female character. The profession of the law is 
 surely not one of these. The peculiar qualities of womanhood, its gentle graces, its 
 quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional im- 
 pulses, its subordination of hard reason to sympathetic feeling, are surely not quali- 
 fications for forensic strife. Nature has tempered woman as little for the judicial 
 conflicts of the court room as for the physical conflicts of the battlefield. Woman- 
 hood is moulded for gentler and better things." 
 
200 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 At the German Mai Fest, also in 1852, he delivered an elaborate ad- 
 dress from which this thought is taken: 
 
 I have often thought that we in the west were a crowd rather than a 
 community. We are no transmitted society, inheriting fellowship, 
 bound by blood and alliance, grown up together to dwell and labor in 
 our fathers' places. We come here in the full maturity of life and char- 
 acter; we meet here from all quarters of the civilized earth. Our native 
 manners, language and habits of life, of thought and of society, act in 
 fact as a principle of repulsion between us. We scatter into clans rather 
 than merge in society. This is all wrong. We meet here by no acci- 
 dent; we are here to accomplish a great providence. The meeting in 
 this great valley of the blood, the language, the literature, the man- 
 ners, the arts, the industry of all Christendom, to mix and merge and to 
 become the elements of a new society and the seed of a new race, under 
 the freest institutions and on the richest soil God's sun shines upon, is 
 no blind chance; it is a pregnant combination ordained of the Provi- 
 dence which watches over the nations, and guides the progress of human 
 civilization. We are here to mix our blood in a new race of men, su- 
 perior to all races because sprung from all. 
 
 The literary faculty was so strongly developed in Judge Ryan that, 
 had he devoted himself to letters instead of the law, he undoubtedly 
 would have won a place in the front rank of American authors. His 
 gifts and desires lay largely in that direction. It was his purpose, had 
 time been allowed him in the severe labors of the law, to write a law 
 text-book and also an English grammar. His editorials in the news- 
 paper for a time under his control were models of thought and diction. 
 Since his death there have been discovered among his private papers 
 the title page, preface and commencement of a story he had at one time 
 begun to write, but had never gone beyond an opening paragraph. 
 This suggestive fragment is here reproduced in full: 
 
 Egotisms 
 
 of 
 
 A Backwoods Pedagogue, 
 
 by 
 
 Hugh Leslie. 
 
 I turn the trouble of my countenance 
 
 Merely upon myself. — Shakespeare. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 201 
 
 Preface. 
 
 I am what I profess to be, an egotist. These pages are but the writ- 
 ten indulgence of a contemplative egotist. 
 
 If what is here written should be read, it will satisfy, if approved, 
 it will gratify the egotist. If read and censured, egotism has its sure 
 consolations for criticism; if neglected and unread, the thoughts in 
 these pages will grow the stronger and clearer in the secret repetitions 
 of conscious egotism. Anyway, the egotist is repaid for the pleasant 
 labor of writing. 
 
 Dear reader — for reading, you are dear to the egotist — do not 
 lightly condemn me for my candor. The philosophy of self is not al- 
 ways selfish. God is the great Ego, and God is love. True egotism 
 is benevolent ; true sympathy is but the reflection of benevolent egotism. 
 
 Read and judge. H. L. 
 
 CHAPTER I. 
 
 The red sun of the Indian summer is just sinking behind the woods. 
 The rich tints of autumn on the trees which crown the bluff die of 
 brighter and more varied brilliancy in the subdued and broken light 
 which penetrates them from behind. Below, the deep shadow of the 
 woods is on the river, here and there relieved by the sunlight which 
 breaks through, dancing on the calm waters in tune with the gentle 
 western breeze which plays among the tree tops. The distant hum of 
 the town down the river is too faint to disturb the beautiful solitude in 
 which the scene is sleeping. 
 
 Here on the yet green bank, with broad clear waters at my feet, 
 I have come to rest after my day's labor. This is my reward for the 
 weariness of the schoolhouse and the turmoil of the town. To be alone 
 with nature in its beauty, while the spirit turns within upon itself in 
 chastened contemplation, is life indeed. Solitude like this is less lonely 
 than most society. 
 
 Society! What matters it to me here that in yonder burgh seems 
 to be concentrated all the pretension which is the vice of all that is 
 called society in western villages. Well, indeed, do I know that there is 
 no family there of speculator, merchant, clergyman, lawyer, doctor or 
 mechanic which does not look with civil condescension on the school- 
 master, because I am a schoolmaster and pretend to be nothing else, 
 
202 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 and because neither lands nor goods attest my worth. But let me believe 
 that I am a gentleman, in all that goes to make one, the equal of any 
 and the superior of many of them, a voluntary exile from circles of 
 which the good folks yonder are able to achieve only a rude imitation, 
 and so smile serenely at the appreciation of the good society of the 
 village of La Fontaine. 
 
 Only this, and nothing more. Not a Une or word in continuation of 
 an idyl that must have been faithful in thought, full of sound sense, 
 and beautiful in language and expression. It certainly would have 
 graphically described some of the social absurdities and crudities of 
 the early and unfounded west. 
 
 Among his papers was also the rough outline of a poem of Judge 
 Ryan's composition, which seems to have been written about the 
 time of the loss of his first companion; and with the reproduction of 
 which these random quotations will be brought to a close. 
 
 Ah me! 
 To be 
 Alone, uncared for and unaided. 
 Wearing out life 
 In hopeless strife. 
 Heart dead, mind broken, spirit jaded. 
 
 I know 
 
 I owe 
 Duties that might make life a treasure, 
 
 But that my heart 
 
 Has now no part 
 In aught that can make living pleasure. 
 
 To tread 
 
 For bread 
 Life's* highways, 
 
 Without one heart 
 
 To be apart 
 With mine in sweet affection's by-ways. 
 
 *The poem was incomplete in this line; words having been supplied and then 
 erased. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 203 
 
 Oh would 
 
 I could 
 Be off and be at rest forever! 
 
 In the dull grave 
 
 At last to have 
 The peace that life can bring back never. 
 
 Yet no 
 
 Ah no! 
 Heirs of my grief ye do not know yet, 
 
 The love that bears 
 
 Lone years on years, 
 For ye the calm grave to forego yet. 
 
 Mr. Bryant in his contribution to the Green Bag on the supreme 
 court of Wisconsin, relates an incident or two of Judge Ryan: He was 
 once arguing a cause before the supreme court of the United States. 
 Chief Justice Chase presided, and during Ryan's argument the great 
 chief justice turned to an associate and began a whispered conversa- 
 tion. Perceiving this, Ryan paused and waited until the chief justice 
 turned as if to inquire the cause of his silence. Then Ryan said, with 
 great dignity but significant impressiveness, "what I am saying is worth 
 hearing." It is said that the chief justice blushed deeply, and after- 
 wards gave perfect attention. 
 
 His sarcasm was biting, but it could be kindly. On being told that 
 a legal acquaintance had married a fortune and obtained a fine federal 
 appointment, he exclaimed: "God bless him! The lucky, lazy dog! 
 He never opened his mouth but to yawn, and never opened it but a 
 sugar-plum fell into it." 
 
 The next change in the composition of the court resulted from an 
 amendment to the constitution increasing the number of judges from 
 three to five, and extending the term from six to ten years. This 
 amendment was adopted by the people November 6, 1877. I^i the 
 meantime the salaries of the judges had been increased from two 
 thousand dollars, as fixed in 1852, to two thousand five hundred dollars 
 
204 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 in 1857, to three thousand five hvnidred dollars in 1867, to four thousand 
 dollars in 1868, and to five thousand dollars in 1873. Each of these 
 increases applied only to judges appointed or elected after the act 
 making it took effect. 
 
 In April, 1878, David Taylor and Harlow S. Orton v^'ere elected 
 associate justices; they qualified on the i8th of that month. From that 
 time until the death of Chief Justice Ryan (October 19, 1880,) the 
 court consisted of the three persons named and Judges Cole and Lyon. 
 
 DAVID TAYLOR. 
 
 David Taylor was born at Carlisle, Schoharie cotinty, New York, 
 March 11, 1818. On his father's side he was of Irish ancestry; on his 
 mother's of Dutch descent. He was graduated' from Union College in 
 1841, and admitted to the bar at Cobbleskill, New York, in 1844, where 
 he practiced law two years. In February, 1846, he arrived in the terri- 
 tory of A'X^isconsin, and. after looking over Milwaukee and Green Bay, 
 determined to settle at Sheboygan. He became a member of the firm 
 of Taylor & Hiller in July, 1846. He faithfully and acceptably dis- 
 charged the duties connected with local offices, and served one term 
 as district attorney of Sheboygan county. In 1853 he was elected to 
 the popular branch of the legislature and in 1854 was chosen a state 
 senator, serving in the sessions of 1855 and 1856, and was again elected 
 to the senate after ten years' service as circuit judge, sitting in that 
 body in 1869 and 1870. His second election as senator occurred in 
 November, 1868, while he was circuit judge, his term as such not ex- 
 piring until December 31, and his term as senator beginning on the 
 next day. Under this state of facts and the provision of section 10, 
 article 7, of the constitution that "Each of the judges of the supreme 
 and circuit courts shall receive a salary, payable quarterly, of not less 
 than one thousand five hundred dollars annually; they shall receive no 
 fees of office or other compensation than their salaries; they shall hold 
 no office of public trust, except a judicial office, during the time for 
 which they are respectively elected, and all votes for either of them for 
 any office except a judicial office, given by the legislature or the people, 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 205 
 
 shall be void," it was contended by Judge Taylor's opponent that he was 
 ineligible and his right to a seat in the senate was contested. The 
 question was referred to the judiciary committee, a majority of which re- 
 ported that they were of the opinion that the last clause of the section 
 quoted "was only intended to give force to the prohibition contained in 
 the first clause, and not to add a new or further prohibition, and that 
 its efifect is the same as though it read 'and all votes given for either 
 of them for any office to be held during the term of his judicial office, 
 shall be void.' " This view was sustained by a vote of eighteen against 
 eight. 
 
 A. M. Blair has said of Judge Taylor as a legislator that "he was 
 quiet, careful and attentive, looking up all questions thoroughly; never 
 aggressive, never in search of new ways to pay old debts, but looking 
 after defects in the old law and devising a new way to make the old 
 better, instead of taking a new way to accomplish the same thing. He 
 endeavored to understand everything, and to favor nothing he did not 
 understand. He was not a brilliant member of either house. In his 
 first session his merits were not appreciated or perhaps not perceived. 
 The first and third sessions of the legislature in which he served were 
 active and stirring ones. In the first a trial by impeachment of Judge 
 Hubbell was held, and in the third there was during its session a trial 
 to ascertain who was the legal governor. The deceased took no special 
 part in either." 
 
 Judge Taylor's judicial career began in 1857 on his appointment by 
 Governor Bashford to the judgeship of the fourth circuit to fill the 
 vacancy occasioned by the resignation of Judge William R. Gorsline. 
 He was elected to fill the unexpired portion of the term, and upon its 
 expiration was chosen for a full term, thus extending his service as 
 circuit judge until January i, 1869, having failed of re-election the 
 previous April. Campbell McLean was his successor. The memorial 
 of the bar of the supreme court, prepared by W H. Seaman, S. U. Pin- 
 .ney, W. C. Silverthorn, F. C. Winkler and Elihu Colman, expressed 
 that during his service on the circuit bench Judge Taylor earned wide 
 reputation for judicial ability. 
 
2o6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 On his retirement from the bench Judge Taylor resumed the 
 practice of the law at Sheboygan, remaining there until 1872, when he 
 removed to Fond du Lac, and entered into partnership with J. M. 
 Gillet and subsequently with George E. Sutherland. His practice was 
 large and increased up to the time of his election as associate justice of 
 the supreme court. 
 
 In 1857 the legislature provided for the appointment of commis- 
 sioners "to collect, compile and digest the general laws of the state" 
 for publication. The governor appointed David Taylor, Samuel J. 
 Todd and F. S. Lovell to perform that work. The result was the re- 
 vised statutes of 1858. By 1871 Judge Taylor had prepared and there 
 was published "The revised statutes of the state of Wisconsin, as altered 
 and amended by subsequent legislation; together with the vmrepealed 
 statutes of a general nature passed from the time of the revision of 
 1858 to the close of the legislature of 1871, arranged in the same man- 
 ner as the statutes of 1858; with references showing the time of the 
 enactment of each section, and also references to judicial decisions in 
 relation to and explanatory of the statutes." The preparation of this 
 work (there being two volumes, aggregating more than two thousand 
 two hunded pages) was a great undertaking, requiring patient industry 
 and the closest application. These statutes came into general use and 
 were known as "Taylor's Statutes." They were so satisfactory to the 
 bench and bar that when, in 1875, the legislature provided for a new 
 revision of the statutes Judge Taylor, with William F. Vilas and J. P. C. 
 Cottrill, was designated by the justices of the supreme court to prepare 
 a bill for that purpose. The result of the labors of these gentlemen and 
 Messrs. Harlow S. Orton and J. H. Carpenter, who, two years later, 
 were selected to assist them, was the revised statutes of 1878. Judge 
 Taylor served as the president of this commission. 
 
 In 1877 an amendment to the constitution was adopted increasing 
 the number of justices of the supreme court from three to five. By an 
 understanding reached between the republican and democratic mem- 
 bers of the legislature the additional members of the court thus provided 
 for were to be taken one from each of these parties; and a caucus of 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 207 
 
 each party was held by the members of the legislature for the purpose 
 of selecting the candidates of each. The republican caucus, by a very 
 close vote, chose Judge Taylor as its candidate, the leading candidate 
 in opposition to him being William E. Carter, then of the Grant county 
 bar, now a practitioner in Milwaukee. In April, 1878, Judge Taylor 
 was elected without opposition as an associate justice of the supreme 
 court, and drew the short term of eight years, Harlow S. Orton drawing 
 the ten-year term. Both sat on the bench of the supreme court for the 
 first time April 18, 1878. At the expiration of his term Judge Taylor 
 was re-elected without opposition for the ten years ending in January, 
 1896. His first written opinion is reported on page 49 of the 44th 
 volume Wisconsin reports, and his last in volume 79, p. 471 ; so that his 
 labors in the supreme court are represented by thirty-six volumes of its 
 reports. He prosecuted his labors almost without interruption up to 
 the third of April, 1891, without any diminution of his powers,, and in 
 the afternoon of that day, after working as was his wont, went to his 
 home and within an hour or so was dead. 
 
 On the third of June, 1891, formal proceedings were had in the 
 supreme court in commemoration of the life of Judge Taylor. Ad- 
 dresses were made by W. H. Seaman, who presented the memorial of the 
 bar of that court, William F. Vilas, A. M. Blair and Charles E. Esta- 
 brook. The following is the address of Mr. Vilas: 
 
 "May it please the court: — I would lay upon the grave of the de- 
 parted a garland of personal remembrance and regard; and I wish I 
 might contribute some aid to the true estimation of his character and 
 excellence by such as lacked the advantage of intimate association to 
 understand him fully. 
 
 "Upon the retrospective glance over all his long, laborious, useful 
 and blameless life, no shadow of evil falls. Research and inquiry will 
 discover only constant devotion; unostentatious but excellent works; 
 steadfast, patient, valuable service to his profession and society; a man 
 not only without display but without the least attempt to shine, but one 
 never failing in robust, healthful usefulness in his station and all the 
 undertakings of his life. 
 
2o8 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 "Yet to the world at large, and indeed to very many, perhaps most 
 of those with whom he came in casual contact. Judge Taylor wore a 
 seeming of unsocial reserve, which limited intercourse and acquaintance 
 and often wrought a misconception of his nature. Touched myself, in 
 some measure, by this erroneous view of him in the earlier years of 
 acquaintance, our enforced intimate association as i:ollaborators during 
 three years of the last revision of the statutes brought him out to 
 me in clear light, and disclosed npt only the freedom of his mind from 
 anything like false pride or want of sympathy with men, but those 
 excellent features of ability and character which ever after have com- 
 manded my cordial respect and esteem. 
 
 "And now, reverently meditating on the spirit which has gone from 
 his clay, the warm desire that his memory may be preserved by the 
 profession and people of the state with discriminating appreciation 
 and justice, directs my thought to those characteristics which ruled the 
 conduct of his life, and a knowledge of which is essential to the proper 
 measure of his worth. 
 
 "Judge Taylor's most distinguished peculiarity, which governed and 
 explained his career, his general conduct and manners as well as accom- 
 plishments, was the constancy and intensity of his devotion to the 
 labors of the law. No man within my range of observation ever gave 
 himself more exclusively, so unceasingly and untiringly, to this single 
 iield of thought and effort. Whatever other studies may have engaged 
 his care, if any ever did for much time, he manifested in his later years 
 little interest in them. Beyond a passing attention to the current af- 
 fairs of the country and topics of the day, of which information came 
 easily, he never seemed to yield himself or his thoughts at any length. 
 
 "But to the law he addressed a capacity for labor unexcelled and 
 rarely equaled, with a constancy as faithful as his capacity was great. 
 He seemed never weary, never wistful to interrupt the calm, steady, 
 unremitting assiduity of his toil. The magnitude of effort to under- 
 stand or elucidate any subject under his hand, the measure of time or 
 personal labor, was no consideration with him. No task was formidable' 
 to his simple steadfastness. Through all the hours of the day, dav after 
 
 I I '! j 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 209 
 
 day, week in and week out, year upon year, without excitement and 
 without ceasing, he bent his mind to the tasks before him, toiling on 
 with each to its complete and satisfactory accomplishment, and entering 
 upon the next as readily as he finished that in hand. Relaxation and 
 recreation were nothing to him. Seemingly he never desired either; 
 holidays and vacations were merely interruptions. The pleasures and 
 enjoyments which others indulge and seek, games, pastimes, entertain- 
 ments, had no apparent charm; and if he suffered them even to check 
 his labor, it was rather from a consideration of others than to please 
 himself. He was, therefore, essentially a contemplative man, his mind 
 ever meditating his problem, the intellectual machinery always running, 
 always grinding its grist. His thought was ever introverted; his atten- 
 tion occupied by that within him, not by things without. Incidents 
 external were rather a hindrance than a help; interruptions, not attrac- 
 tions. 
 
 "Necessarily, his were the manners of a preoccupied man. Yet 
 such was his composure of countenance that his introspection was com- 
 monly not apparent to the ordinary observer, and when he passed with 
 slight notice a friend or acquaintance, it happened not infrequently that 
 the reason for it was denied the credit due. But it needed only to 
 enter the chambers of his mind and witness the busy scene within, to 
 understand the subjects and the methods of his thought, in order to 
 dissipate utterly the superficial misconception. Once in appreciative 
 communion with him, the perception was instant and easy of simplicity 
 and sincerity of purpose, of patient effort to discern and unfold the 
 right, of sympathy with the interests and concerns of men, and the 
 utmost readiness to accept any aid or criticism which helped him to 
 solution of the doubt he wrestled with or unfolded the true course of 
 thought. Any man more free of the mere pride of personal opinion, less 
 impatient of correction, more ready to receive any benefit of another's 
 thought, so that it truly informed his own, I never encountered. In 
 performance of the public duty already mentioned — to which we were 
 called by appointment of this court — it so happened that he and I 
 wrought much together, in a close co-operation, not only on important 
 
210 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 measures of the law, but often upon words and phrases, those stubborn 
 substantives of useful statutes. He was the old, well-stored lawyer, sur- 
 charged with a life of study, long professional and judicial service, and 
 especially expert in statutory knowledge, as one of the revisers of twenty 
 years before and the compiler of a later edition which had long super- 
 seded in use the former work. He brought to the undertaking not only 
 his extraordinary ability for labor, but unusual fulness of legal learning 
 and ripeness of study. Yet the just precedence of these circumstances 
 he never manifested in anything but their value to the duty before us. 
 In every moment of conference his acceptance was as free and easy as 
 his contribution, of everything in every form, whether of suggestion 
 or of criticism, that might promote the utility and excellence of the 
 work in hand. I speak now to his associates of many years in judicial 
 labor; but confidently, that your testimony may be invoked to superadd 
 in more effective tones the proof of these marks of a just, strong, honest- 
 minded man, too great and too generous, too simple and too true, to 
 think of anything but the worthy end of legal labor in its highest use- 
 fulness to men. 
 
 "He ardently loved justice and surely yearned to see justice done in 
 every cause. His anxious care for this is manifest in every opinion he 
 wrote. It was a virtue that, taken with his untiring assiduity and his 
 disregard of personal seeming, wrought with him some vice of manner 
 and of aim. It exposed his opinions sometimes to criticism for their 
 length, though not for their substance. There was perhaps now and 
 then a fault, but an inconsiderable one, for which he rather accepted 
 reprehension than incur the risk of error by too much compression. 
 
 "And I have thought he missed sometimes, in his ardor for the 
 seeming equity of the case, the highest aim of a judge upon this supreme 
 tribunal of the state, whose true function it much more surely is to rule 
 and maintain the law with comprehensive wisdom and unfailing stead- 
 fastness for the guidance of the whole people, those out of court as well 
 as those before it, than merely to give to suitors a Solomonic resolution 
 of each particular controversy. 
 
 "But this occasion afifords no latitude for the suitable portrayal of 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 2II 
 
 the character and services of the man or the judge who is gone. Sum- 
 marily, it must be said that a career of conspicuously valuable service 
 to the state has been closed by his loss. Though he may not rank as a 
 great or brilliant man, Judge Taylor deserves to be long remembered 
 as an unusually good, useful and serviceable lawyer and judge, who was 
 perhaps of more real advantage to his time and his kind than if he had 
 been a greater one, as the world reckons greatness. That lack of what- 
 ever it may have been which excites the admiration, that calls a man 
 great, he made up in accomplishment by his faithful and enduring toil, 
 and not only became greatly learned in the law and wise in judgment, 
 but put his learning and his skill, by industry that never tired, into forms 
 of value to his fellowmen. 
 
 "And Heaven vouchsafed him an end befitting his life. No idle 
 years of inane waiting, no sinking by disuse in slow mortal decay. But 
 while still in the strength of manhood, without lingering pain or burden- 
 some contemplation of the coming changes after that full day's toil 
 which was his wont and joy, he was called to his rest as the laborer, 
 retiring home at night, seeks the repose of Nature in reward of honest 
 doing. 
 
 "May his ashes lie in hallowed peace, and the bar and people whom 
 he served keep his memory in deserved honor." 
 
 Chief Justice Cole said in response to the memorial and addresses: 
 
 "The sudden death of Judge Taylor, of which the memorial and res- 
 olutions of the bar just presented to the court make mention, produced 
 throughout the state, when announced, a feeling of deep and sincere 
 sorrow. He was apparently in the enjoyment of perfect health and 
 in the full possession of all his mental powers when he left his desk, on 
 the third of April last, after his work for the day was done, and went to 
 his home in this city, and within the brief period of an hour was dead. 
 A death so unexpected of one who occupied his responsible position 
 and who was so eminent, able and just in the discharge of his official 
 duties, was well calculated to shock the public mind, as it did, and im- 
 press all with a sense of the great loss the state had sustained by his re- 
 moval from earth. And this sense of loss has rather been increased than 
 
212 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 weakened as the sad event has been considered by all thoughtful citi- 
 zens. Indeed, the death of Judge Taylor, occurring as it did, would be 
 regarded as a public calamity in any state or community. He was 
 cut of¥ in the midst of his great usefulness, when his services were as 
 valuable and important as they ever were to the people of the state. 
 
 "He was as conscientious and faithful a judge as ever occupied the 
 bench in any country at any time ; and all know how with heart and soul 
 he endeavored to do his entire duty in his office. He was universally 
 respected and admired for his pure life, his integrity of character, his 
 independence and tireless industry. To him severe mental labor 
 seemed to be a joy and delight. He certainly never shrank from any, 
 however toilsome. There is probably not a member of the bar, perhaps 
 few citizens of our state, who do not know of the laborious habits, the 
 complete devotion to duty, which marked his life. And in him, too, the 
 love of justice was almost a passion and controlled his whole conduct. 
 He strove to do right and to render exact justice to all, regardless of all 
 personal considerations. This spirit is manifested in all his opinions. 
 He was patient, careful, and thorough in the examination of causes, 
 solicitous to master every fact and circumstance, and evinced an un- 
 conquerable purpose to decide them upon the merits, according to prin- 
 ciples of law and equity. He had no fondness for technicalities, and 
 pushed them aside when they stood in the way of doing substantial 
 justice. His mind was practical and solid rather than brilliant, and he 
 sought to adapt legal principles to business afifairs and the condition of 
 society in our state. There is nothing eccentric or visionary in the 
 views which he took of all questions, and he eminently was 
 
 " 'Rich in saving common sense.' 
 
 "He possessed, as he deserved, in a high degree the confidence and 
 respect of the people of the state, who well knew his great worth of 
 character as manifested in many ways. To his brethren in the con- 
 sultation room his loss is irreparable, for his place cannot be made good 
 by anyone. He was so careful and exhaustive in his investigations, was 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 213 
 
 actuated by such a strong love of justice and right, was so anxious to 
 apply correct principles to every case, so able to unravel the most diffi- 
 cult subject, united with a manner of stating his conclusions with 
 clearness and freedom, that he was listened to with increasing respect in 
 all our deliberations. Besides, his assistance in the decision of cases 
 was especially helpful because he had practically aided in making three 
 revisions of the general statutes, that of 1858 and that of 1878, also pub- 
 lishing his own revision in 1871 (for that is what it amounted to), in 
 which he pointed out the changes that had been made from time to 
 time by the legislature. It is therefore but simple truth to say that 
 there is probably no man in the state whose knowledge of the local law 
 could be compared with his for fullness and accuracy. And this great 
 familiarity with the statutes enabled him, as one will readily under- 
 stand, to render most invaluable aid in considering and deciding cases, 
 so many of which turn upon the meaning or construction of a private 
 statute or a general provision of law. 
 
 "It is needless to say that Judge Taylor came to this bench amply 
 prepared for the work which he had to do. His diligent professional 
 studies and his experience on the bench of the circuit court had stored 
 his mind with the principles of jurisprudence, and he had acquired the 
 ability to apply them to legal controversies. His knowledge of the 
 law was profound, and he was justly considered one of our ablest judges. 
 This is not the time to speak of the value or the merits of his published 
 opinions. But it is safe to affirm that no one can read them without 
 being impressed with the wealth of learning and research as well as 
 the vigor of reasoning which mark them. 
 
 "We close this imperfect tribute to his memory with the remark that 
 an able judge, a patriotic citizen, a good man, has closed a life of 
 singular purity and usefulness, leaving behind an untarnished reputa- 
 tion and an example which all may imitate." 
 
 HARLOW S. ORTON. 
 
 The birthplace of Harlow S. Orton was in Niagara county, New 
 York; the time November 23, 1817. His father, Harlow N. Orton, M. 
 14 
 
214 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 D., was a native of Vermont, and his mother, Grace Orton, nee Marsh, 
 was born in Connecticut. His paternal ancestors migrated from Eng- 
 land in the middle of the eighteenth century, and his maternal progen- 
 itors were of the early Puritans of New England. The members of 
 both branches of the family were enlisted in the service of the revolu- 
 tionary war. Both of his grandfathers were Baptist clergymen, who 
 shouldered muskets and fought for liberty and independence. 
 
 Judge Orton was educated first at the common schools, and later at 
 the Hamilton academy and Madison university in his native state, receiv- 
 ing at the latter institution his degree of graduation. Upon leaving the 
 university he became a school teacher in Kentucky, and while thus en- 
 gaged, in 1837, began the study of law. In the same year he left Ken- 
 tucky to join his brother, Myron H. Orton, late of Madison but now 
 deceased, who was then practicing law in La Porte, Indiana. At that 
 place, in 1838, he was admitted to the bar, and began to practice in the 
 northern Indiana circuit. He became deeply interested in the political 
 campaign of the year 1840, and was enlisted into the service as a speaker 
 in several of the states of the Union, making nearly one hundred speeches 
 advocating the election of General Harrison. In 1843 he was appointed 
 probate judge of Porter county by the governor of Indiana. In 1847 he 
 moved to the territory of Wisconsin and commenced the practice of law 
 in Milwaukee. 
 
 In 1852 he became private secretary of Governor L. J. Farwell, and 
 moved to Madison, his last residence. In 1854 he represented the Mad- 
 ison district in the assembly. In 1859 he was elected judge of the ninth 
 circuit, and was subsequently re-elected without opposition. He re- 
 signed that office in 1865 and resumed the general practice of his pro- 
 fession. In 1869 he was again elected to the legislature, and was re- 
 elected in 1871. In 1876 he was the candidate of his party for Congress, 
 but was defeated in a republican district by a few votes. In the same year 
 he was appointed one of the revisers of the statutes of the state. From 
 1869 to 1874 Judge Orton was dean of the law faculty of the university, 
 and during his term of service as dean the degree of LL. D. was con- 
 ferred upon him. In 1877 he was elected mayor of Madison, and served 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 215 
 
 one term. From 1870 to 1878, the time of his election as justice, he 
 was the senior in the law firm of Orton, Keyes & Chynoweth. 
 
 Upon the reorganization of the supreme court, by the addition of 
 two justices thereto, he and David Taylor were elected to those posi- 
 tions, and took their seats in April, 1878. On the retiracy of Chief Jus- 
 tice Lyon, Judge Orton succeeded him as chief justice. This was in 
 January, 1894, and that position he occupied until his death. Among 
 his last public acts was administering the official oaths to the state of- 
 ficers on their inauguration, January 7th, 1895. Shortly after that date 
 he had sat for the last time upon the supreme bench, though he lived 
 in daily hope of soon resuming his duties there. His death occurred at 
 his home in Madison, July 4, 1895. 
 
 Politically, Mr. Orton affiliated with the whig party until 1854; since 
 then he has been an independent democrat, but he never identified him- 
 self with politics while on the bench and never allowed his decisions to 
 be affected by partisan lines. 
 
 The foregoing is, with but little variation, from the address of E. W. 
 Keyes to the supreme court on the presentation of the memorial of the 
 bar on the death of Judge Orton. After speaking of the latter's interest 
 in history, literature and art and of his family, Mr. Keyes said: 
 
 "To sum up the career of this great lawyer and able judge, it can 
 truthfully be said of him that he filled faithfully and well every position 
 assigned him, as if he had inscribed upon his heart the words of the 
 poet, 'Act well your part, there all the honor Hes.' 
 
 "Judge Orton was a remarkable man; he possessed a high order of 
 talent and ability. But in the first place I wish to speak briefly of those 
 qualities which found expression, as a friend and neighbor, in the every- 
 day walks of life. In his intercourse with the people of every class he 
 was gentle, sympathetic, and kindly, and he was gallant and courteous 
 in a strong degree. His radiant smiles and his ringing, cheery voice 
 were in themselves mediums of encouragement and hope to all who 
 came within the circle of his presence. He was natural and true, the 
 same yesterday and to-day; and his genial manners, wherever he might 
 be, were as a ray of sunlight to clear away the clouds. His demeanor 
 
2l6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 was peculiar to himself. He was fashioned in a mold of his own; there 
 was no one like him. His geniality was proverbial. He was a born 
 actor, and in his style there was evidence at times of the natural attri- 
 butes of tragedy and comedy. In his step he was hght and active; his 
 movements were graceful and dignified; and he ever evoked, in his' per- 
 sonal presence, the admiration of those with whom he came in contact. 
 He was democratic in the highest and truest sense of the word; he was 
 emphatically one of the people. His feeHngs and sympathies went out 
 strongly and in no mistaken terms in behalf of the poor, the sufifering, 
 and the downtrodden, as against injustice and oppression in whatever 
 form they might appear. And he was always ready to lend a helping 
 hand to relieve the distressed, to strengthen the weak, and to give words 
 of hope and encouragement to those who were despondent and in 
 trouble. These noble and manly qualities, so characteristic of Judge 
 Orton, were given manifestation, in a greater or less degree, every day 
 of his life. His greetings to friends and neighbors were cordial, sincere, 
 and came from the heart. The magnetism of his presence, the shake 
 of his hand, would seem to impart his own impulses and to gladden the 
 heart with pleasure almost unaccountable. The manner of his inter- 
 course with his fellow-men, of high or low degree, was always the same, 
 prompt, cordial, and genuine. There was no selfishness in it. He 
 sought not to ply the arts of the intriguer or politician, to reap benefits 
 therefrom. It was all spontaneous with him, the natural outpouring of 
 his sincere and generous nature. 
 
 "While, at tifnes, he seemed inexorable in his ideas of propriety, jus- 
 tice, and right, and perhaps was subject to the charge of severity, still 
 he was always reasonable and ready to modify his views and opinions, 
 of a personal or general nature, to correspond with those of his friends 
 and associates, when such modification required no sacrifice of prin- 
 ciple. He was a man- of firm and lasting friendship, true as the needle 
 to the pole, and while he was inapt to be presumptuous or to crowd 
 himself forward in his association with others, yet he enjoyed in a high 
 degree close and intimate companionship. 
 
 "It is true, however, that he lived much within himself, keeping 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 217 
 
 closely within the family circle, and was disinclined to society in its 
 ordinary course. Still his sociability and fraternity were strongly de- 
 veloped and cultivated by him on all possible occasions. 
 
 "Judge Orton had a high sense of honor. He could not tolerate a 
 mean or dishonest action in any one, and when knowledge of such 
 conduct came to him he would denounce it in language forcible and 
 strongly condemnatory. 
 
 "In his family, with wife, children, and grandchildren, he was ever 
 kind, tender, and affectionate. It was here in this hallowed presence, 
 in the latter years of his life, when not engaged in official duties, that 
 his time was mostly spent. His devotion to her who, with him, had 
 passed the half-century line of wedded life, was touching in the ex- 
 treme. During the months of his ill-health, when confined mostly to his 
 house, he seemed to live and move and have his being in the gentle 
 ministrations of his fond and faithful wife. The mutuality of love and 
 affection between them during the trying ordeal that ended in death 
 was most beautiful to behold. Like lovers, hand in hand, they had 
 passed along the road in the journey of life, until, weary with burdens, 
 the tired footsteps of one sought the haven of rest which is ready for 
 us all." 
 
 Justice R. D. Marshall presented to the court the resolutions of the 
 bar of Chippewa county, and said, in part: 
 
 "The worthy life and distinguished pubHc service of him whom we 
 all here honor constitute an important part of the history of our com- 
 monwealth; this sufficiently appears and can be readily comprehended 
 when it is considered that more than half the work of this court since 
 its organization, as evidenced by the published reports, has been per- 
 formed since Justice Orton's accession to the bench. 
 
 "I enjoyed his acquaintance for a considerable period of time, and 
 came sufficiently within his circle to become sensible of his intellectual 
 power, of his sturdy and noble manhood, his keen sense of justice, and 
 his ready disposition to sweep aside all barriers that stood in the way 
 of meting out exact justice between parties. Perhaps the time has not 
 yet arrived to express justly an opinion of his judicial work, but when 
 
2l8 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 it does, I venture the assertion that it will be clearly revealed and said 
 of him that he was exceptionally free from the trammels of mere legal 
 technicalities and existing opinions which fell below his high concep- 
 tions of those immutable principles of justice which measure out to 
 and protect each in the possession and enjoyment of his just share of 
 the pleasures of life, liberty and property; that he did as much, at 
 least, as any of the distinguished men who have made the history of the 
 jurisprudence of this state to abolish in fact, as iwell as in form, all 
 distinctions between law and equity, to free our jurisprudence from 
 the restraints of all technicalities and precedents that would otherwise 
 stand in the way of the perfection of a system combining common-law 
 methods with equitable principles, and to bring the law as a whole 
 into complete harmony with justice and equity; that in this respect 
 he made a mark upon the history of the jurisprudence of this state that 
 will not fade away. 
 
 "He lived beyond the allotted time of human life, active in public 
 work till near the last, and it may well be imagined that he was so far 
 weary of the intense activities and exacting duties of his position that 
 without regret, except at leaving those he loved, he submitted to the 
 mysterious boatman to cross the dark river into that perfect rest of 
 the eternal shades beyond, where we may reasonably hope an impor- 
 tant element in the perfection of his joy is the consciousness that all 
 men here revere his memory, award him a high place in the temple of 
 human fame, and bear witness to his strong, deep but tender nature, 
 his eloquence as an advocate, his high conceptions of official duty, his 
 intellectual power, and the characteristics which rightly class him with 
 the great men of our state and nation. Well may it be said that he 
 left no stain upon his name, that death came to him not as an inter- 
 ruption but as a climax, his career constituting, as it were, a finished 
 course, leaving little that can be regretted except that his valuable life 
 could not have been prolonged and his labors continued; but a wise 
 and mysterious Providence decreed otherwise, and removed him l)e- 
 yond the vale, leaving to us the memory of his honesty of purpose in 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 219 
 
 all the walks of life, his distinguished public career, the nobility of his 
 manhood, and that will live on and and on, in this respect: — 
 
 'Immortality o'er sweeps 
 All forms, all tears, all times, all fears, and peals, 
 
 Like the eternal thunders of the deep, 
 Into our ears the truth, he lives forever.' 
 
 "May we long feel his influence in his accustomed place, seek wisdom 
 of him as if he were here by drinking at the fountain of his creation! 
 Thus, though it is written he is dead, he will ever be with us to labor 
 in the lines he loved and to sustain those principles of justice among 
 men he maintained in life so long, so faithfully, and so well." 
 
 Former Chief Justice Orsamus Cole stood before the bench on which 
 he had sat for nearly thirty-seven yeai's and said of his associate there: 
 
 "May it please the court. — I have been requested to make some re- 
 marks on this occasion on the late Chief Justice Orton, — a request with 
 which I willingly comply, though with a sad and chastened spirit. 
 Indeed, my natural feelings, without such a request, would have 
 prompted me to say something, if permitted, to pay some tribute of 
 respect and honor to the memory of a man with whom I had been as- 
 sociated for some twelve or fourteen years in the discharge of those 
 important duties which the laws and constitution impose on the mem- 
 bers of this court, and one for whom I entertained sincere personal re- 
 gard to the day of his death. I speak for myself, as well as for a friend, 
 a former member of this court, now in a distant state, who can only be 
 present in spirit at this solemn session. [The reference is to Judge 
 Lyon, at the time on a visit in California.] 
 
 "I shall attempt no eulogy on the deceased. That duty, I doubt 
 not, will be performed, and well performed, by others. Nor shall I at- 
 tempt to give even a sketch of the public life of the chief justice, 
 varied and useful as it was. I will confine my remarks principally to 
 his professional career upon the bench and at the. bar in this state. 
 I trust the few remarks I shall make will accord with simplicity and 
 truth, as best becomes the subject and occasion. 
 
 "I think I became acquainted with Judge Orton in the winter of 
 
220 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 1854. I well remember the first argument I ever heard him make in 
 court. It made a deep impression on my mind. It was before this 
 court in the case of Veeder v. Guppy, reported in the 3rd Wisconsin. 
 The case was one which excited much interest and public feeling in 
 the neighboring county of Columbia, and was hotly contested. Such 
 giants in the profession as Judge Alexander Stow and E. G. Ryan were 
 engaged in the cause as opposing counsel. When I mention that fact, 
 it will be sufficient evidence to every lawyer that Judge Orton's intel- 
 lectual ability and learning in his profession was then generally recog- 
 nized; otherwise he would not have been called upon to meet such 
 antagonists in an important cause. 
 
 "From that day to the time he left the practice to take a place on the 
 bench of the^circuit court, and subsequently on the bench of this court, 
 he maintained his position in the front rank of the profession, and was 
 justly regarded as one of the ablest lawyers and one of the most elo- 
 quent advocates at the bar in this state. He had a large practice in 
 the trial courts and in this court. And in this connection I may add, 
 as I am now the only survivor of all those who participated, either on 
 the bench or at the bar, in the trial and decision of the novel and some- 
 what celebrated case of Bashford v. Barstow, reported in the 4th Wis- 
 consin, which, it will be remembered, was a contest for the office of 
 governor of the state and excited intense interest and strong public 
 feelings, certainly in the political parties. Judge Orton appeared for 
 the defendant. He was associated with such eminent and accomplished 
 lawyers as Jonathan E. Arnold and Matt. H. Carpenter, but the burden 
 of the argument upon all motions and questions of law arising in the 
 preliminary proceeding rested mainly upon the shoulders of Judge 
 Orton, who seemed, by consent, to be given the management of the 
 cause in court. The questions involved were certainly new — I might 
 say, almost of first impression under our form of government. They 
 could not, of course, arise under any other form. Judge Orton met 
 and discussed these questions with wonderful learning and ability. 
 He was called upon, likewise, to discuss them often on the spur of the 
 moment, without any time for reflection, examination of the author- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN, 221 
 
 ities, or even to make preparation, and against such lawyers as Judge 
 Timothy O. Howe and E. G. Ryan, whose supremacy at the bar will be 
 questioned by no one. But Judge Orton was not surpassed by any 
 lawyer in the case in the efforts he put forth or in the intellectual 
 powers he exhibited. His client surely had no grounds to complain 
 that his rights and interests in the litigation had not been well and 
 fully protected and presented to the court 
 
 "As an advocate, Judge Orton was most effective, often eloquent and 
 impassioned as a speaker. His mind was clear, logical, and he had at 
 his command a ready flow of vigorous language to express his ideas. 
 He was earnest and sincere in the treatment of all subjects. His sensi- 
 bilities were lively and always excited by any act of fraud or injustice 
 which he was called upon to review; and when he had to deal with 
 such cases, which sometimes happens to every lawyer in practice, he 
 did not soften his denunciations nor spare the wrongdoer, but hurled 
 his words of wrath and sarcasm with pitiless contempt and scorn. Woe 
 to the man who had excited his indignation by any base and dishonest 
 conduct, for he was sure to receive a castigation in words which stung 
 like the whip of a scorpion. And yet he could and did move human 
 sympathies and excite deep emotion and tender feeling, while he cap- 
 tivated the judgment and carried away the understanding of his hear- 
 ers by his appeals. But enough will have been said on this point when 
 I add, he was a most effective speaker, and by the enthusiasm of his 
 temper and magnetism of his manner he had great power and influence 
 over courts and juries 
 
 "His elevation to this bench seemed to fill the measure of his ambi- 
 tion. The performance of the duties of the office was congenial to his 
 tastes, and he looked and sought for no further honors. 
 
 "I hope I violate no rule of the most delicate propriety when I allude 
 to his deportment on the bench and in the consultation room. As a 
 judge, in his intercourse with his associates his conduct was ever kind, 
 considerate and gentlemanly. He was ready to express his opinions 
 on all questions, and willing to listen to objections to his views. He 
 always did his full share of the work cheerfully. He was laborious and 
 
222 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 attentive to the business of the court; ready to accommodate and yield 
 to the wishes of others, when no principle was involved. He was an 
 able, honest, and upright judge, trying always to do the right and to 
 administer his high office with impartiality and firmness, never yield- 
 ing to any popular prejudice or partisan feelings. He seemed to desire 
 above all things to see justice done in all business matters, and he 
 sought to settle legal controversies on the eternal principles of equity 
 and right. What higher praise could be rendered to any judge? Some 
 wise man has said that 'governments are estabhshed to promote jus- 
 tice among men.' Certainly no civilized society could long exist with- 
 out some means or instrumentalities to secure justice as between man 
 and man. How much real value he contributed to the jurisprudence 
 of the state will appear by the reports of the cases that are published. 
 His acts and labors as a judge are there recorded, and will remain for 
 the instruction and criticism of an intelligent bar and public. I cannot 
 but believe that his opinions will be read with respect so long as the 
 state has a system of jurisprudence, and that no intelligent lawyer will 
 ever fail to hold them in high estimation. It demands no little wisdom 
 and ability to settle a code of laws for a new state — one which is 
 adapted to its new conditions and, in a measure, to its unformed so- 
 ciety. New laws are constantly enacted, tried, and changed, and must 
 be made to meet certain wants and public necessities. And much of 
 the labors of this bench are devoted to the construction of statutes, 
 even to the effort of harmonizing them and making them consistent 
 with each other. But in all this labor the chief justice participated, 
 as well as in all proper attempts to improve the common law, and gave 
 to them his sympathies and best powers. He was naturally conserva- 
 tive in his character, and fully understood the distinction of the func- 
 tions of a judge and those of a law-maker. And, so far as he could, he 
 endeavored to advance all wise reforms in the law and to establish a 
 system of jurisprudence suited to the needs and business interests of 
 our people. How well he succeeded in this work, time will disclose. 
 There is certainly a vigor and elevated moral tone found in his opinions 
 which all will admire. But this is not the time nor the occasion to 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 223 
 
 examine or review at length the judgments which he gave, and I for- 
 bear to do so. 
 
 "The last visit I was permitted to pay the chief justice was at his 
 residence about a fortnight before he died. It was in the early part of 
 the forenoon when I made my call, but he was dressed and received me 
 at the door. At his invitation I entered his room and had a sad but 
 friendly chat with him. I could see at a glance that disease was mak- 
 ing great inroads on his constitution. But his voice was strong, and 
 other indications of vitahty led me to beheve and hope that he would 
 live some weeks, possibly some months. His mind seemed clear, but 
 was occupied by subjects not pertaining to this life, but those relating 
 to a future state of existence. He had upon his mind the old question 
 which has perplexed mankind in all ages; a question asked by the pa- 
 triarch Job in that wonderful discussion with his friends on the far dis- 
 tant plains in the east; a question possibly asked by thousands of the 
 sons and daughters of Adam before Job's day; and certainly a question 
 asked by many thousands of them since his day, and one that will 
 continue to be asked, I know not how long nor how often, but as long 
 as man shall speculate as to his final destiny; and that was, 'If a man 
 die, shall he live again?' This question seemed to engage his thoughts, 
 or lie upon his mind. Of course, I could give no new answer to the 
 question, nor throw any new ray of light upon it, nor was I able to 
 solve any of his doubts or remove any of his difSculties. His observa- 
 tions seemed to call for some reply, and I made the commonplace re- 
 mark, trite, but true, as I believe, that we are the children of a Creator 
 of infinite love and mercy, one who gave us life and prepared this 
 world for us with all its possibilities of happiness; and if, in His wis- 
 dom, it was for our permanent welfare that our spiritual nature, our 
 moral and intellectual being, should survive death and the tomb, I was 
 confident our Creator had so ordered from the beginning, and it might 
 suffice to rest the matter there. After a few words further, we parted, 
 I going my way of life, and he, in a very few days, 'going to his long 
 home, and the mourners go about the street.' " 
 
 During the day on which the supreme court took formal action on 
 
224 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the death of Judge Orton exercises in memory of Moses M. Strong were 
 had. In the course of his address concerning the career and character 
 of Mr. Strong, WilUam F. Vilas thus spoke of Judge Orton: 
 
 "The late chief justice was the judge of this circuit when I came to 
 the bar, and before him my fledgling efforts were put forth. Deeply 
 and tenderly now, as 'many a time and oft,' I recall the gracious kind- 
 ness with which he tolerated my crude beginnings, and, with justice 
 jaot less than with considerate sympathy, guided the righteous cause 
 to a righteous success. Himself long triumphant in the struggles of the 
 bar, and well tried in practice among that older generation whose strug- 
 gles were often merciless as fierce, it is a testimony to the nobility of his 
 heart that he never rejoiced in triumph over an unequal antagonist, and 
 especially to the young lawyer whose feeble attempts might well pro- 
 voke a smile from his power, he was ever, gentle, considerate and kind. 
 Let blessing rest on his memory for it! He shall never want that 
 prayer while I hold remembrance. 
 
 "Nor, though I purpose no account of his powers, can I withhold 
 my recollection of the matchless eloquence which, in his happiest moods 
 before the panel, I have never heard surpassed. 
 
 "All genuine orators are, I suppose, unequal, as occasions vary in 
 demand and moods in responsiveness. But of him I can truly say that 
 the intellectual and emotional delight with which I have listened, rapt, 
 ravished and swept away by his thrilling energy, suiting 'the action to 
 the word, the word to the action,' I treasure the memory of to this hour. 
 
 "Great occasions have sometimes proffered opportunities to orators 
 worthy of them, and their masterpieces are prizes among men. The 
 occasions tendered Orton were not historic, and, as with most of his 
 profession, his fame must rest mainly in tradition. I wish I might add 
 to its duration by this testimony." 
 
 Mr. Chief Justice Cassoday, on behalf of the court, responded as 
 follows : 
 
 "The several members of this court fully endorse all the good things 
 said of our brother, the late Chief Justice Orton. He was certainly a 
 very remarkable man in many respects. With an ambition towering 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 225 
 
 far above that of ordinary mortals, with courage equal to any emer- 
 gency, with an imagination excessively brilliant and grandly compre- 
 hensive, with a heart that sympathized with all suffering and despised 
 all shams and all meanness, with quick perceptions and a clear insight 
 into the ordinary motives of men, with an integrity of purpose which 
 could not be swayed by friendships or enmities, with a remarkable com- 
 mand of language, with extensive reading and a large acquaintance 
 with men and things, with an intensity of feeling and a vehemence of 
 expression seldom equaled, he was born to be unusually conspicuous 
 among men, and especially in the field of oratory and the arena of de- 
 bate. 
 
 "Impelled by such qualities of head and heart, he left his home, his 
 relatives, and his friends in the state of New York at the early age of 
 nineteen, and went to Kentucky to begin the battle of life. While 
 there, at Paris, in the vicinity of Lexington, engaged in teaching the 
 young, he was himself being taught in courage, in oratory, and in 
 statesmanship by the most illustrious advocate and political leader of 
 that day — Henry Clay. Inspired by the manly presence and the per- 
 sonal popularity of that eminent American, he was induced to study 
 law, and was admitted to the bar at La Porte, Indiana, at the age of 
 twenty-one. Undoubtedly his belief in, and admiration for, Henry 
 Clay prompted many of his political and public utterances throughout 
 his long and eventful life. 
 
 "While engaged in the practice of his profession at Valparaiso, Indi- 
 ana, in 1839, he met a Maryland girl, and the result was mutual love 
 and marriage a few days afterward. 
 
 "The summer before he was twenty-three he visited the relatives of 
 his young wife in Maryland. The great campaign between William 
 Henry Harrison and Martin Van Buren was then in full vigor. The 
 young and ardent 'Hoosier orator,' as he was called, soon found him- 
 self upon the stump; and he made eighty speeches during the campaign 
 in the several states of Maryland, Pennsylvania, Virginia, Ohio, Ken- 
 tucky, and Indiana. 
 
 "The merits of his addresses may well be imagined from the contents 
 
226 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 of a letter now present, dated at Chambersburg, Pennsylvania, Septem- 
 ber 17, 1840, addressed to 'Mr. Orton,' and purporting to be written 
 'at the earnest and repeated solicitation of many' of the citizens of 
 Chambersburg, 'friendly to the cause of Harrison and reform, some 
 of whom' had heard him speak at Mercersburg, Pennsylvania, and at 
 Hagerstown, Maryland, a few days before, inviting him to be present 
 at a meeting to be addressed, among others, by Hon. James Buchanan, 
 then forty-nine years of age and serving his second term in the United 
 States senate, and the special champion of Andrew Jackson and ]\Iartin 
 Van Buren in Pennsylvania, for the purpose of taking up and answer- 
 ing 'their arguments.' The letter states in effect that it emanated 
 from strangers to Mr. Orton, and on behalf 'of a large and respectable 
 portion of his warm admirers as an energetic, eloquent public speaker,' 
 and the writer says: 'Allow me, sir, to add that we know of none 
 whom we prefer to yourself for that trust.' The tone of this letter 
 suggests the early public efforts of Clay himself, and even those of the 
 younger Pitt. The fact that he declined the invitation reflects credit 
 on the judgment of one so young, without any disparagement of his 
 courage. 
 
 "^Mth such a make-up, Harlow S. Orton was necessarily a com- 
 manding figure at the bar, whether practicing in Indiana or Wisconsin. 
 Upon the dissolution of the old whig party he joined the democratic 
 party. 
 
 "Forty years ago the coming January, as indicated in remarks from 
 the bar, there arose in this court a controversy as to the governorship, 
 which attracted the attention of lawyers and statesmen throughout 
 the whole country. In behalf of the claimant there appeared as coun- 
 sel Timothy O.-Howe, Edward G. Ryan, James H. Knowlton and Alex- 
 ander ^^'. Randall, while in behalf of the incumbent there appeared 
 Jonathan E. Arnold, ^Matthew H. Carpenter, and Harlow S. Orton. 
 It is unnecessary to say in this presence that it was a battle between 
 giants in which, from the first to the last, Mr. Orton was a very potent 
 factor. Upon his death there was found among his papers a note con- 
 taining the refrain, which he has often uttered in the presence of his 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 227 
 
 brethren, to the effect that ex-Chief Justice Cole and himself wei'e the 
 only survivors of the many persons connected with that great trial. 
 
 "Six years upon the circuit bench made him restless of the confine- 
 ment, and so he voluntarily resigned, in February, 1865, and resumed 
 the practice of the law, which he continued until he became a member 
 of this court more than thirteen years afterwards. During that time 
 he assisted many attorneys in different parts of the state in the trial 
 of causes. 
 
 "My estimate of him as a lawyer and advocate is manifest from the 
 fact that twenty-five years ago Judge Bennett of Janesville and my- 
 self, being confronted in an important case by a large array of able 
 counsel, including the late United States Senator Carpenter, then in 
 the zenith of his great national reputation as a lawyer, were author- 
 ized by our client to select any one we desired to assist us on the trial, 
 and without a moment's hesitation we selected Harlow S. Orton. 
 
 "In the trial of causes he seldom took any notes or made any mem- 
 oranda, but relied upon his memory and the inspiration of the mo- 
 ment. His tact and skill were more conspicuous in his addresses to 
 the court and jury than in the management of the trial and the ex- 
 amination and cross-examination of the witnesses. His sparkling wit, 
 his biting sarcasm, his keen sense of the ludicrous, his positive convic- 
 tion, his powers of invective, his personal magnetism, his commanding 
 voice, and his ability to make every fact and circumstance appear 
 favorable to his cause, all conspired to secure the attention of his hear- 
 ers the moment he rose to his feet, in the court room or elsewhere. 
 
 "He was always very social with his friends; and during his long 
 practice at the bar and for several years after he became a member of 
 this court he was seen almost daily upon the streets, cordially greeting 
 his many acquaintances and admirers. 
 
 "At the time he became a member of this court some of his friends 
 doubted whether he could endure the protracted confinement and se- 
 clusion, the patient, severe, and continued study and investigation, so 
 essential to the satisfactory performance of the responsible duties of 
 his ofifice. But he was ecjual to the emergency, and applied himself to 
 
228 HISTORY OF THE BENCH AND BAR OF WISCONSIN 
 
 the work of his office with all the enthusiasm of his nature and all the 
 energy of which he was master. He took great pride in the opinions 
 he wrote, and was in the habit of reading them aloud to himself in 
 order that he might the better detect any error in thought or misuse 
 of language. Such readings were frequently interrupted by his breth- ' 
 ren to prevent the premature announcement of the»decision made, and 
 on all such occasions he would rebuke himself with great emphasis for 
 the inadvertence. 
 
 "His opinions are embraced in forty-seven volumes of Wisconsin Re- 
 ports and speak for themselves. They will remain as his perpetual and 
 living monument. Although he was over sixty years of age when he 
 became a member of this court, yet he served for more than seventeen 
 years — two years longer than Chief Justice Dixon, and longer than 
 anyone except Chief Justice Cole and Chief Justice Lyon. During all 
 those years, except when prostrate by disease, he performed his duties 
 with patient industry, fidelity, and ability. In the consultation room 
 he was, when in good health, vigorous, suggestive, and helpful. Fre- 
 quently he would be the last to yield to the decision made, and then 
 write the opinion, from which it might be inferred that he had no re- 
 spect for any contention to the contrary. He had a high regard for 
 the personal courtesies due among members of the court, and if in the 
 earnestness of discussion and on the impulse of the moment he chanced 
 to overstep the limits of propriety, he was thereafter quite sure to 
 make a frank and full apology. 
 
 "Some may say he was equal, superior, or inferior to some other; 
 but one independent personality, with fully developed brains and heart, 
 cannot be intelligently compared with another in the language of 
 mathematical formulas. On the contrary, the only intelligent com- 
 parison of such men, even in the same vocation, must be largely by 
 way of contrast. As this court has never had, and never will have, but 
 one Crawford, one Smith, one ^^'hiton, one Cole, one Dixon, one 
 Paine, one Downer, one Lyon, one Ryan, and one Taylor, so it never 
 had, and never will have, but one Harlow S. Orton. Each of these 
 men came here by a separate pathway, with different experience and 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 229 
 
 Opportunities, and with a physical and mental make-up peculiarly his 
 own, which resulted in an independent personality — unlike any other — 
 and each has left his peculiar impress upon the jurisprudence of our 
 state 
 
 "The soul of our departed friend was highly strung and took a broad 
 range, and was capable of touching notes far above, as well as below, 
 the ordinary gamut. He would at times, under the pressure of intense 
 excitement, appear as an uncaged lion, and then again as gentle as a 
 lamb. At times he would walk the room in the presence of one or 
 more of his brethren, and discourse with much emphasis upon some 
 incident of the day or of his past life, or some phase of social order, or 
 the creative powers of God, or the possibilities and probabilities of im- 
 mortality. 
 
 "He was by nature broad, generous, and honest, but excessively 
 sensitive, and hence was more or less afifected by his environment; and 
 so at times a change in the weather was liable to produce exuberance 
 or depression. For many years he dreaded death as the door leading 
 to a terrible uncertainty, but he always had a strong belief in the 
 fatherhood of God, the brotherhood of man, and the teachings of Jesus; 
 and during the last weeks of his life he became resigned and reconciled. 
 He was domestic in his habits and loved his family with the most 
 tender affection. His companion for fifty-six years of married life was 
 to him a guardian angel. 
 
 "When I last saw him he spoke of the terrible pains he had suffered 
 and the hours of despair he had experienced. When able, he always 
 wrote to each of his absent children every Sabbath, and did so only four 
 days before his death. In each of these last letters he clearly analyzed his 
 own condition and stated what his physician had said about his malady, 
 but apparently without any expectation of recovery. In one of them 
 he said: 'It is a terrible life, to alternate between hope and despair.' 
 
 "On the afternoon of July 4, one of his sons and his wife, about to go 
 
 out to ride, expressed to him the hope that the next time they went 
 
 riding he would be able to go with them, but he shook his head. He 
 
 read up to a few minutes of his last attack, and then marked the place 
 15 
 
230 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 where he stopped. Soon after he told his wife he was liable to faint 
 and what to do in case he did so. He then rose from his chair, said he 
 was a 'pretty sick man,' lay down on the bed, and expired soon after. 
 Thus, like John Adams and Thomas Jefiferson, he died on the fourth 
 of July, and when we remember his ardent love of country and the 
 many patriotic utterances he has made, we may well doubt whether 
 he would have had it otherwise. Thus sadly close's the last chapter in 
 his recorded history in this court." 
 
 Four cases of unusual public interest have engaged the attention of 
 the supreme court of this state, and Judge Orton has been, either as 
 lawyer or judge, connected with them all. The first of these involved 
 the question of the original jurisdiction of that court to inquire, by quo 
 warranto, into the right of opposing claimants to the office of governor 
 and to oust the person intruding therein or usurping the functions of 
 the office. In that case Judge Orton appeared as counsel for Barstow 
 who claimed to have been reelected, but whose right to the office was 
 denied. That case arose in 1855. In 1874 the "Granger cases" arose. 
 These involved the right of the state to regulate railroad charges. Judge 
 Orton argued the affirmative of the proposition as counsel for the state. 
 The other cases referred to involved the right to read the Bible in the 
 public schools and the power of the court to overthrow acts apportion- 
 ing the state into senate and assembly districts because they did not 
 conform to the requirements of the constitution as to uniformity of 
 population and compactness of territory. In each of these cases he 
 wrote an opinion. 
 
 The promotion of Judge Cole to the chief justiceship followed the 
 death of Judge Ryan, and John B. Cassoday was appointed to the as- 
 sociate justiceship vacated by Judge Cole. 
 
 JOHN B. CASSODAY. 
 
 Mr. Cassoday was born in Herkimer county, New York, July 7, 
 1830. About three years later his father died and he and his mother 
 moved with her parents to Tioga county, Pennsylvania. He began 
 life as poor as the poorest of boys, but the same industry, good judg- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 231 
 
 ment and well-directed ambition which made him one of the foremost 
 lawyers of Wisconsin, carried him successfully through his early strug- 
 gles. Besides occasionally attending the district school for a few 
 months, working for his board, he attended one term at the village 
 school at Tioga and one term at the Wellsborough academy before he 
 was seventeen. For the next four years he was engaged in various 
 kinds of manual labor, occasionally teaching in the winters. He after- 
 ward spent two terms at the academy of Knoxville, Pennsylvania, and 
 two years at Alfred (New York) academy, from which he was gradu- 
 ated. He then went to the university of Michigan, where he spent one 
 year, taking the select course, vvhich was supplemented by a short term 
 at the Albany law school, and reading in a law office at Wellsborough, 
 Pennsylvania. Desiring to find a wider field, he went west in 1857, and 
 settled in Janesville, Wisconsin, where he entered the law office of 
 H. S. Conger, a.fterward judge of the twelfth judicial circuit, and pur- 
 sued his law studies there until 1858, when he became a member of the 
 firm of Bennett, Cassoday & Gibbs, which continued for seven years. 
 He was ambitious and full of energy; and with a manly self-conscious- 
 ness of his ability, integrity of purpose and determination to succeed in 
 life, both as a man and as a lawyer, he took his place and was soon 
 recognized as the peer of his brethren at the bar. 
 
 From 1866 to 1868 he was alone in his practice. At the latter date 
 the firm of Cassoday & Merrill was formed; it continued for five years, 
 when Mr. Merrill retired from practice. That firm was succeeded by 
 the firm of Cassoday & Carpenter, which continued until our subject 
 was appointed to the supreme bench, November 11, 1880. 
 
 As a lawyer, Mr. Cassoday was one of the brightest and most suc- 
 cessful in the state. From the outset of his career he showed a clear, 
 analytical mind, well-balanced, cool and cautious; but the success he 
 obtained could only come from downright hard study and work. 
 While in practice he was devoted to his profession, thorough 
 and methodical in the preparation of his cases, and skilled 
 and judicious in their management, always true to his client 
 and equally true to himself and to the court; intensely anx- 
 
232 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 ious to succeed, but always just and courteous to his op- 
 ponents, he took nothing for granted, but went to the bottom of 
 every question, and the members of the bar who were tempted to rake 
 after him found but scant gleaning. In his arguments his earnest and 
 clever manner of presenting each particular case and his complete mas- 
 tery of the questions involved, gave him a rare power and caused him 
 to be listened to by court, jury and bar with the utmost attention and 
 sincerest respect. His practice was general, and during his twenty-three 
 years at the bar he was constantly crowded with business. Among the 
 cases in which he was thus engaged may be mentioned the Jackman 
 Will Case, 26 Wisconsin, 104; Chapin Will Case, 32 Wisconsin, 557; 
 Culver vs. Palmer, Smith vs. Ford, 48 Wisconsin, 115; Rowell vs. 
 Harris Manufacturing Company, and Sergeant Manufacturing Com- 
 pany vs. Woodrufif — the last two being patent cases in the federal courts. 
 Justice Cassoday's first vote for a presidential candidate was for 
 Franklin Pierce in 1852, but he has been a republican ever since the 
 ■ organization of that party. In 1864 he was a delegate to the Baltimore 
 convention which nominated Lincoln, and was placed upon the commit- 
 tee on credentials, which was that year a very important committee. 
 He was the only member of the Wisconsin delegation who voted for 
 Andrew Johnson, as a candidate for vice-president. In the same year 
 he was elected to the Wisconsin assembly, and during the session served 
 with credit on the judiciary and railroad committees. The thirteenth 
 amendment to the constitution of the United States was ratified by this 
 legislature at this session, and Mr. Cassoday took an active part in 
 the debate upon its passage. In 1876 he was again called upon to rep- 
 " resent his district in the same body, and was then chosen its speaker 
 without opposition in his own party. He made up the committees 
 with strict reference to their experience and capacity, and announced 
 their appointment on the second day of the session. By so doing and 
 by his tact and executive ability in the chair, the business was com- 
 pleted in fifty-eight days, being one of the shortest sessions in the his- 
 tory of the state. While he was speaker he confined himself strictly 
 and exclusively to the duties of his of^fice, and made himself master of 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 233 
 
 parliamentary law, so that he has since been habitually consulted on that 
 subject. 
 
 In 1880 he was a delegate at large to the national republican con- 
 vention at Chicago and was chairman of the Wisconsin delegation. 
 He presented to the convention the name of the late Elihu B. Wash- 
 burne as a candidate for President in a speech that was worthy the 
 man and the occasion. On the morning of the second day of the bal- 
 loting for a candidate for President, sixteen members of the Wisconsin 
 delegation, including General Rusk, General Winkler, Joseph V. 
 Quarles, William E. Carter, Norman L. James, A. J. Turner, the late 
 Edward Sanderson, the late Frank L. Gilson and Mr. Cassoday, before 
 leaving their hotel, resolved to cast their votes for James A. Garfield; 
 and it was left to Judge Cassoday to determine the opportune time for 
 casting such vote. Accordingly, and after six ballots had been taken, 
 and Edmund's strength had gone to Sherman, and Washburne had 
 lost twelve votes from Indiana, Mr. Cassoday announced to his fellow 
 delegates that the time had come for breaking the deadlock; and there- 
 upon and on the thirty-fourth ballot, he announced the vote of the 
 delegation — sixteen of the votes being cast for General Garfield, who 
 was nominated on the second ballot thereafter. 
 
 While at the bar Mr. Cassoday kept up a lively interest in all public 
 questions and took an active part upon the stump in every important 
 political campaign from 1856 to 1880, inclusive. He at all times 
 exhibited an unflinching fidelity to the interests of the people and the 
 fundamental principles of the republican party. He was frequently a 
 delegate to state conventions, and presided over the one in 1879. He 
 declined to be a candidate for numerous offices, including circuit judge 
 in 1870, and attorney general in 1875. He was never a politician in 
 any sense. 
 
 October 19, 1880, that eminent jurist, Chief Justice Ryan, died, 
 thereby creating a vacancy upon the supreme bench. In a few days 
 the republican press pretty generally came out in favor of the appoint- 
 ment of our subject for the vacancy. Up to that time he had never 
 had any judicial experience, and was then engaged in stumping the 
 
234 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 State for Garfield and the republican party, and continued to do so 
 until the election, which occurred November 2. 
 
 October 23, 1880, the Rock county bar held a meeting and unani- 
 mously resolved to urge the governor to appoint Mr. Cassoday to the 
 office made vacant by the death of Chief Justice Ryan, and sent the 
 following communication to the governor: 
 
 Janesville, October 25, 1880. 
 Hon. William E. Smith, 
 
 Governor of Wisconsin: 
 Dear Sir: We desire to present for your most favorable considera- 
 tion the name of the Hon. John B. Cassoday of this city, for a candi- 
 date for appointment as chief justice of the supreme court of this state. 
 From an intimate acquaintance with him, by most of us for more than 
 twenty years, we take pleasure in saying that he is a gentleman of 
 irreproachable public and private character. As a lawyer, he is in- 
 dustrious, able and learned in his chosen profession, and, in our judg- 
 ment, he will honor and adorn the place made vacant by the late learned 
 and illustrious chief justice. 
 
 Yours with highest respect, 
 Ogden H. Fethers. John Nichols. 
 
 F. N. Hendrix. J. W. Sale. 
 
 Geo. G. Sutherland. William Street. 
 
 John Winans. John R. Bennett. 
 
 T. J. Emmons. Pliny Norcross. 
 
 J. J. R. Pease. Ed. F. Carpenter. 
 
 Tom. S. Nolan. B. B. Eldredge. 
 
 H. H. Blanchard. Wm. Sm.ith. 
 
 Frank Brooks. E. M. Hyzer. 
 
 A. O. Wilson. S. A. Hudson. 
 
 A. Hyatt Smith. M. S. Prichard. 
 
 B. F. Dunwiddie. Wm. Ruger. 
 L. F. Patten. M. M. Phelps. 
 A. C. Bates. 
 
 The bar of numerous counties and cities throughout the state fol- 
 lowed the action of the Rock county organization, and leading attor- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 235 
 
 iieys and business men from all sections of the state urged his appoint- 
 ment on the governor. To illustrate the opinion regarding the fitness 
 of our subject for the high position to which his appointment was 
 urged, we quote herewith two of the many letters received by Gov- 
 ernor Smith in his behalf. The first is of the same date as the death of 
 Chief Justice Ryan and is a worthy tribute from one of the most emi- 
 nent men that Wisconsin has ever produced. 
 
 Washington, October ly, 1880. 
 His Excellency, William E. Smith, 
 
 Governor, etc.: 
 My Dear Sir: Upon you is cast the duty of appointing a successor 
 to Hon. E. G. Ryan, chief justice. Hon. J. B. Cassoday, of Janesville, 
 will be presented for your consideration and I desire to say that I know 
 him well and believe that he would be an excellent appointee. He is a 
 good lawyer, a gentleman, and perfectly honest in thought as well 
 as act, and I should be greatly mistaken if his appointment did not 
 prove to be a good one. 
 
 Very truly yours, 
 
 MATT H. CARPENTER. 
 
 The second letter is from one who had been intimately associated 
 with our subject, both professionally and socially for many years, and 
 who probably was as well qualified to speak of his abilities and true 
 worth as any man in the state. The letter is as follows: 
 
 Milwaukee, Nov. 4, 1880. 
 Governor William E. Smith, 
 
 Madison, Wis. : 
 Dear Sir: I left home the middle of October and only returned last 
 Saturday night, or I should have written you before, making some 
 suggestions as to the vacancy on the bench of the supreme court. I 
 have known Mr. Cassoday, of Janesville, over twenty years, and during 
 the last five years of my residence there I was his law partner. He is 
 an exceedingly industrious and studious lawyer; has had a very large 
 and successful practice; has a judicial turn of mind; is a man of the 
 most unbending integrity; and, in my judgment, is eminently fitted 
 for the supreme bench. I have had no communication with Mr. Cas- 
 
236 HISTORY OF THE BENCH AND BAR OF WISCONSIN, 
 
 soday on this subject, but I have seen the action of the Rock county bar, 
 and I most heartily endorse that action, and I hope your view of Mr. 
 Cassoday's fitness will lead you to appoint him. Should you appoint 
 Judge Cole to the chief justiceship and then appoint Mr. Cassoday to 
 the position now held by Judge Cole, I am sure Mr. Cassoday's friends 
 would recognize the fitness of such action and would cordially approve 
 it. 
 
 I do not think it necessary to write at great length, for you are well 
 acquainted with Mr. Cassoday, but I have had special opportunities 
 to become familiar with his sterling qualities, and I trust you believe I 
 would not recommend his appointment unless I thought such action 
 would be for the interest of the people of the state. 
 
 Very respectfully yours, 
 
 WILLARD MERRILL. 
 
 November 11, 1880, Mr. Justice Cole, who had been a member of the 
 court for more than twenty-five years, was appointed by the governor 
 to the office of chief justice. He at once accepted the same, and there- 
 upon Mr. Cassoday was appointed to fill the vacancy created by the 
 resignation of Justice Cole. 
 
 Upon receiving notice of his appointment, Mr. Cassoday, in the 
 following terms, formally accepted the trust tendered him: 
 
 Janesville, Wis., Nov. 13, 1880. 
 To His Excellency, William E. Smith, 
 
 Governor of Wisconsin : 
 My Dear Sir: I have received, through your private secretary, Hon. 
 George W. Burchard, your letter of the nth instant, inclosing a com- 
 mission to me as associate justice of the supreme court of this state in 
 place of Justice Cole, resigned. 
 
 Profoundly sensible of the high honor and the great confidence 
 implied, and the sacred trust and weighty responsibility imposed; and 
 trusting to the guidance of the great lights of the law, whose thoughts, 
 reasons and judgments have been preserved in the books; and relying 
 upon that Divine Providence, who so often lights up the darkened path- 
 way, I hereby accept the office so generously tendered. 
 
 Your most obedient servant, 
 
 J. B. CASSODAY. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 237 
 
 In April, 1881, both Chief Justice Cole and Justice Cassoday were 
 elected tothe respective offices, which they held by appointment, upon 
 calls of the bar, the legislature and the people, without regard to party, 
 and with the exception of a few scattering ballots, received the entire 
 vote of the state — Chief Justice Cole having 177,522 and Justice Casso- 
 day 177,553. ^^ June, 1881, Beloit college conferred upon Justice Cas- 
 soday the degree of LL. D. In 1889 Justice Cassoday was reelected 
 without any opposition, upon calls from the bar of every county in the 
 state, every member of the state legislature and every state officer, and 
 received 210,899 votes, being all but 212 of the total number of votes 
 cast. 
 
 Since 1885 Justice Cassoday has lectured to the senior classes in 
 the college of law of the university of Wisconsin upon wills and consti- 
 tutional law. His lectures on wills were published, in 1893, in a book 
 entitled "Cassoday on Wills," and the same is now used as a text book 
 by law students in the Wisconsin university under the instruction of 
 John M. Olin, a prominent member of the Wisconsin bar, and also in 
 other law schools. Judge Cassoday continues, however, to lecture once 
 a week during the college year on the subject of constitutional law. 
 
 On the bench, Justice Cassoday has been indefatigable, and his 
 opinions, appearing in forty-seven volumes of the Wisconsin reports, 
 commencing with the fiftieth, have been cited throughout the land as 
 authority by the bench and bar of many states. He has written several 
 opinions in very intricate cases on the subject of wills, which have at- 
 tracted more than usual attention from the profession, and we therefore 
 mention some of the most important. Will of Mary P Ladd, 60 Wis., 
 187; Scott vs. West, 63 Wis., 529; Newman vs. Waterman, 63 Wis., 
 612; Will of Ward, 70 Wis., 251; Ford vs. Ford, 70 Wis., 19, and the 
 same case, 72 Wis., 621; Will of Slinger, yz Wis., 22; Will of Ehle, 73 
 \\'is., 445: Baker vs. Estate of McLeod, 79 Wis., 534; Burnham vs. 
 Burnham, 79 Wis., 557; and Saxton vs. Webber, 83 Wis., 617. He 
 has likewise written several opinions in cases involving important ques- 
 tions of constitutional law, among which may be mentioned Wisconsin 
 Central Railway vs. Taylor County, 52 Wis., 37; Baker vs. State, 54 
 
238 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Wis., 368; Cathcart vs. Comstock, 56 Wis., 390; Chicago & North- 
 western Railway Company vs. Langlade Couoty, 56 Wis., ^14; Bald- 
 win vs. Ely, 66 Wis., 171 ; State ex rel. vs. Forest County, 74 Wis., 610; 
 State ex rel. vs. Ryan, 70 Wis., 676; J. S. Keator Limiber Company vs. 
 St. Croix Boom Company, 72 Wis., 62; State ex rel. vs. District Board, 
 76 Wis., 203; State ex rel. vs. Mann, 76 Wis., 469; State ex rel. vs. Cun- 
 ningham, 82 Wis., 39, and 83 Wis., 90; State ex rel. vs. Stewart, 60 Wis., 
 587. This last case was upon the much mooted question of inter-state 
 extradition, and was in conflict with some previous decisions in state 
 courts, and was subsequently disapproved by one text writer and two 
 or three state courts; but more recently it has been expressly approved 
 by other text writers and by the highest courts in Colorado, Georgia, 
 New York, Massachusetts, North Carolina and by the supreme court of 
 the United States in the case of Lascelles vs. Georgia, 148 U. S., 547. 
 Other cases might be cited which have been of more or less public in- 
 terest, but they are too numerous to mention here. Since July 4, 1895, 
 Mr. Cassoday has been chief justice of the supreme court. 
 
 In addition to his official duties and work in the law school. Justice 
 Cassoday has prepared and read before literary gatherings or societies 
 various papers upon Law and Lawyers, Lord Mansfield, The American 
 Lawyer, American Citizenship, our Magna Charta (which is the first 
 chapter of this work), and John Scott, and John Marshall, being his 
 subjects. During the eighteen years he has been upon the bench he 
 has entirely refrained from participating in any affairs or gatherings of 
 a political or public nature, except that he delivered an address on one 
 fourth of July and a memorial address upon the death of General Grant, 
 August 8, 1885 — both to his old neighbors and friends in Janesville and 
 Rock county. The latter address is herewith reproduced: 
 
 "When great deeds are to be mentioned, apt words are most diffi- 
 cult to find. When great sorrow is experienced, the heart is most 
 thoroughly subdued. 
 
 "To-day the younger portion of American citizens are enquiring of 
 themselves. What is the cause of this extended sorrow? What has 
 induced this great personal devotion? What has prompted these lavish 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 239 
 
 expressions of sympathy and honor? Why this immense cortege ex- 
 tending throughout the repubHc and in other lands? Why should 
 this man be singled out from the many millions and thus crowned with 
 universal homage? These are the questions on the lips of the young. 
 
 "To those more advanced in life, the occasion revives the memory 
 of a thousand issues, each at the time portentous for good or evil; and 
 now, as the spirit of the great hero has crossed the silent river and dust 
 is returned to dust, it is fitting that we take a retrospective glance at the 
 events which gave him the opportunities for proving his heroism and 
 greatness — for these qualities existed though concealed in the man, 
 before being called into action. What person whose hair has been 
 frosted by the lapse of time does not remember the sad mutterings of war 
 along the whole southern sky during the five months immediately pre- 
 ceding the outbreak? During those months defiance was constantly 
 uttered, states seceded, and a new government organized within our 
 borders, amidst complications which seemed to forbid a national pro- 
 test. 
 
 "During those months the false were clamorous for surrender; the 
 timid, ready to compromise or divide the republic for the sake of peace; 
 and even the brave and patriotic were filled with terrible forebodings 
 on account of pending possibilities. Amid scenes of that character, 
 there would occasionally be a voice, louder, firmer and more inspiring 
 than the rest, to the effect: 'Stand for the right! Stand for your coun- 
 try! Trust in God! Do your duty and all will be well!' 
 
 "Finally the red cloud of war flew athwart the sky, and the nation 
 was confronted with the terrible alternative that either one-half of the 
 republic must surrender to the so-called Confederacy, or that blood 
 and treasure must flow in large quantities for the preservation of the 
 Union. The weak-hearted fainted. The cowardly emigrated. The 
 brave quietly, but with firmness and determination, took sides for or 
 against their enemy. Many of the more heroic at once voluntarily left 
 the plow in the furrow, the tools in the work-shop, the goods on the 
 counter, the pen in the office, and hurried away to the post of duty. 
 Among the hundreds of thousands who thus went to the front at the 
 first call of patriotism, was a simple, quiet, modest clerk in a leather 
 store of a neighboring city — notwithstanding he had a family on his 
 hands with little means of support, but with priceless treasures of mind 
 and heart not then revealed to his nearest neighbors. For ten months 
 
240 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 but little was heard of hiin. Men who had proved their capacity for 
 leadership in any former war were either too old for active duty or in 
 sympathy with the rebels. All were therefore looking for a coming 
 leader, but none suspected the Galena clerk. 
 
 "Washington and the Potomac, Richmond and the James were the 
 great theaters of action. Time rolled on. Expected victories failed to 
 be realized. Disappointments and defeats became .more frequent and 
 disastrous. Many brave men lost all hope, save in the God of battles 
 through the efificacy of prayer. By and by the Galena clerk was given 
 a command and allowed to venture out in the dead of winter. He 
 boldly struck the rebels in their fortifications, and in quick succession 
 Forts Henry and Donelson surrendered with many thousands of prison- 
 ers. The news came like claps of thunder from a clear sky. The people 
 of the west began to feel they had at last found the coming leader. But 
 his capacity for commanding a large army or several armies in combina- 
 tion was not yet demonstrated, and by many denied. Then followed the 
 great battle of Shiloh, against one of the ablest and most skillful leaders 
 of the enemy, and, although victorious, yet the price paid left the ques- 
 tion of his capacity for great deeds still debatable. But the campaigns 
 which followed in the face of cruel criticisms, especially that of Vicks- 
 burg and Chattanooga, settled the question in the west, and with many 
 in the east. Finally, called by Congress and the President to take com- 
 mand of all the Union armies, he moved forward with a simplicity of 
 manner, a singleness of purpose and a firmness of tread, indicative of a 
 clear perception of what ought to be done and a conscious ability to 
 do it. This purpose was pursued with an unyielding pertinacity to the 
 very end. With an abiding confidence in the rank and file of his army, 
 and an unselfish generosity toward all his subordinates, he moved for- 
 ward like one born to conquer, and by continually pressing the enemy 
 along all the lines and in every quarter he was within a year enabled to 
 force a complete surrender on his own terms. 
 
 "Having restored peace to his shattered country, he returned to 
 Washington and his home, not as an ambitious conqueror, anxious for 
 applause of men and exaltation at the hands of his countrymen, but as 
 a simple, quiet citizen, fully satisfied with having performed the duties 
 which, under an overruling Providence, he had been called upon to do. 
 The same singleness of purpose and unyielding pertinacity which 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 241 
 
 crowned his military efforts with glory and honor marked his career as 
 a civil magistrate. 
 
 "But twenty years have elapsed since peace was restored, and the 
 men comprising the two armies returned to their respective homes and 
 to the ordinary avocations of life. Twenty years have elapsed since the 
 kind-hearted and magnanimous Lincoln fell a victim to cruel hate. 
 Emblematic of a better future, to-day ex-Confederate and Union sol- 
 diers join in the mournful procession and bow over the grave of him 
 who did so much to restore the nation as a permanent blessing to all 
 the people thereof; to the new south as well as the north, and to the 
 posterity of both. So it is not always true that the people are fickle, nor 
 that republics are ungrateful. But what were the qualities of head and 
 heart which, under such peculiar circumstances, could thus challenge the 
 admiration of all his countrymen and the great and good throughout 
 the civilized world? Without sufficient property to supply the ordinary 
 wants of his family, without any influential friends except as attracted 
 by his genius, without any special gifts of speech or of language, with- 
 out any of the qualities which the world calls brilliant, he rose, never- 
 theless, in four years from absolute obscurity to the very highest pin- 
 nacle of military fame. This was not the result of mere luck or accident. 
 The numerous victories achieved were never secured by mere tenacity of 
 purpose. The contest was one of brains as well as valor. With a con- 
 tempt for all pretense or military blandishments; with an abhorrence for 
 mere newspaper notoriety, evidenced by his exclusion from the lines of 
 all newspaper correspondents; with a singleness^ of purpose to capture 
 or destroy the enemy in front of him, which was never frustrated, even 
 for his own personal reputation or advancement; with prescience capable 
 of seeing things in advance in their true relations; with an accuracy of 
 reason and a largeness of comprehension seldom present in the midst 
 of great excitement; with a cool deliberation incapable of being dis- 
 turbed by the severest shock of battle; with the capacity for adapting 
 adequate means to appropriate ends, with a decision of character and 
 a fearlessness in taking upon himself grave responsibihties seldom 
 equaled; with a reticence which never in advance revealed his plan of 
 battle; with a confidence in the wisdom of his conclusions which at 
 times was perfectly sublime; with an unyielding persistency m carrying 
 all his plans into complete execution, he was, from the very nature of 
 things almost irresistible in every battle in which he was engaged. 
 
242 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 With an individuality distinctly marked; with a make-up and methods 
 peculiarly his own; with a character unique and incomparable, he seems 
 to have been created and especially trained by Almighty God for the 
 great deeds which he did and for the doing of which his name will go 
 forward with Lincoln's and Washington's to the remotest generation. 
 
 "But we are not to blindly worship General Grant nor any human 
 being. He had faults which were radical. In gome directions he 
 transcended in greatness any of his countrymen, living or dead. In 
 other directions he was surpassed by many. On his return from his trip 
 around the world, had he gone into absolute retirement from all busi- 
 ness and politics, his life work would undoubtedly hav« been far more 
 satisfactory to himself, and, if possible, more highly appreciated by his 
 countrymen. The great mistake of his Ufe consisted in blindly trusting 
 occasionally in some unworthy of becoming his associates, and who, 
 when fully revealed, were found to be scoundrels in the disguise of 
 friends, feeding upon his credulity and fattening upon his great reputa- 
 tion. But notwithstanding this weakness the verdict is unanimous. He 
 was absolutely without duplicity or guile, thoroughly sincere, strictly 
 honest, uncommonly generous and grandly magnanimous. 
 
 "From all this we may learn that above every citizen, above the 
 wisest magistrate, above the greatest hero, above the grandest potentate 
 on earth, there is one ever-living and true God presiding over the des- 
 tinies of nations and peoples; creating by His fiat; shaping with His 
 hands; guiding with His finger; chastening through sorrow and af- 
 fliction; nurturing by His care; winning by His love; saving by His 
 grace. Humbly submitting to His eternal laws, reverently seeking 
 guidance from His everlasting wisdom, let us, as a common brother- 
 hood, seek, by doing His will, to finally become citizens of His 
 kingdom, the future republic of the soul." 
 
 In February, 1898, Judge Cassoday was elected president of the 
 state bar association. A meeting of that body was held on the 
 8th of June, 1898, in connection with the semi-centennial celebration 
 of the organization of the state government at Madison. After calling 
 that meeting to order he delivered the following address: 
 
 I can hardly reaHze that fifty years have transpired since Wisconsin 
 was admitted into the Union and that I have been a citizen of this state 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 243 
 
 during all of that time, except the first nine years. Nor can I fully real- 
 ize that Wisconsin is only sixty years younger than our national gov- 
 ernment. This was the last of the five great states carved out of the 
 northwest territory, and only sixty years prior to the admission of Wis- 
 consin into the Union, the first attempt at any civil government in all 
 that territory lying east of the Mississippi river, north of the Ohio and 
 west of Pennsylvania, was instituted at the place where the city of 
 Marietta, Ohio, is now located. The centennial of the civil government 
 in the northwest was celebrated at that place ten years ago, and it was 
 my high privilege to be present and participate in the proceedings. At 
 that time Spain owned Mexico and all the territory west of the Missis- 
 sippi, except what is now Oregon, besides many islands of the sea. 
 To-day she is not quite certain that she can hold together the old home- 
 stead — less than four times the size of Wisconsin and with a population 
 only a trifie more than is now embraced in these five great states which 
 have since that time sprung into being. So it is only no years between 
 Putnam and Marietta and Dewey and Manila. Thus God deals with 
 nations and men in the making of history. 
 
 Twenty-nine states were in the Union prior to Wisconsin, and yet all 
 of our citizens are proud of its history — proud of its inheritance — proud 
 of the variety of blood — of nationality — of experience — of religion, 
 which pervades our grand commonwealth. The result is, that our citi- 
 zens have achieved a broader education — a broader intelligence, and 
 thus they have become a grand — patriotic — conservative — cosmopolitan 
 people. The legal profession has done its full share in making this 
 history. I regret that the state bar association had not, in February 
 last, arranged to present to this meeting an account of some of the 
 agencies of lawyers in making, administering and enforcing the consti- 
 tution and laws of our state, and the federal government, and, also, to 
 give us a sketch of at least some of the many lawyers who have gone out 
 from our borders and become distinguished in other states, and a few 
 even in the nation. Impartial history will, necessarily, mention some of 
 them, but the memory of many able and worthy lawyers rests in tradi- 
 tion only, and hence we owe it, as a duty to those who may come after 
 us, to preserve the memories of those who have passed away, as rich 
 legacies to coming generations. Strike out from our history the influ- 
 ence of lawyers in making our constitution and laws, and our state 
 would, to-day, make a far different and less praiseworthy showing. In 
 
244 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the convention which framed the first constitution, preparatory to ad- 
 mission into the Union, there were 27 lawyers out of 124 members. 
 Among them were two, whose faces adorn the walls of this court room — 
 Judge Dunn and Chief Justice Ryan. That constitution was rejected, 
 but the labors of the convention which framed it were highly beneficial 
 in aiding the next convention to frame an acceptable constitution, and 
 one of the best that can be found in any of the states. In that second 
 convention, 16 out of 69 members were lawyers, and the paintings of 
 two of that number grace the wall of this court room, in the person of 
 Chief Justice Whiton, who always looked the judge, acted the judge 
 and was the judge, and the other was Chief Justice Cole, then only 
 twenty-eight years of age and who, after one term in Congress, occupied 
 a place upon this bench for thirty-six and one-half years — longer than 
 any person ever Qccupied the supreme bench of the United States where 
 the appointments have been for life. Judge Cole listened to every argu- 
 ment I ever made in the supreme court of this state, and it was my high 
 privilege to be a co-worker with him upon the bench for eleven years, 
 and, thank God, he is able to be with us on this semi-centennial occa- 
 sion. I am, moreover, pleased that my old friend and one of my first 
 partners, and one from whom I early learned some valuable lessons in 
 trying lawsuits, Hon. John R. Bennett, is present and will address us 
 to-day.* I am, also, grati'fied that we have with us to-day, one whom I 
 first saw 39 years ago, presiding in another wing of the capitol, and be- 
 fore whom, as judge, I practiced at the bar for fifteen years, and with 
 whom I was a co-worker upon this bench for thirteen years. Chief Jus- 
 tice Lyon. As a mark of honor to him and as an act of propriety for 
 the occasion, I have requested him to preside over this meeting, and so 
 I present to you Chief Justice Lyon — who needs no introduction. 
 
 February 21, i860. Justice Cassoday was married to Mary P. Spauld- 
 ing, of Janesville, Wisconsin. Four daughters and one son have 
 blessed this marriage. Their names are: Ella S., now Mrs. William H. 
 Jacobs, of Denver, Colorado; Belle E., wife of George H. Wheelock, of 
 South Bend, Indiana; Anna L., now Mrs. Nathan Clark, of Duluth, 
 Minnesota; Eldon J., who is connected with the legal department of the 
 Atchison, Topeka & Santa Fe Railroad in Chicago, and who married 
 
 *Judge Bennett's address appears elsewhere in this work. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 245 
 
 Miss Sophia Clawson; and Bertha May, now Mrs. Carl Johnson, of 
 Madison, Wisconsin. Previous to their marriage, Mr. and Mrs. Casso- 
 day became members of the Congregational church, and four of their 
 children are now members of it. While making no ostentatious parade 
 of his religious views, our subject endeavors to lead a worthy Christian 
 life. 
 
 Justice Cassoday owes the high position to which he has attained 
 entirely to his own exertions. He has, through his ability, steadfast- 
 ness of purpose and integrity, advanced to membership of the highest 
 tribunal of his state, and possesses the highest measure of respect of the 
 bar and people. His career affords a forcible illustration of the power 
 of patience, perseverance and conscientious work in enabling a man to 
 surmount and overcome early difficulties and obstructions of no ordi- 
 nary kind. 
 
 It is but just and merited praise to say that as a lawyer Mr. Cassoday 
 ranked among the ablest of the great west; as a legislator, he was the 
 peer of any. of his colleagues; as a judge, he is ever honest, painstaking, 
 laborious, courteous, learned, and strong; as a citizen, he is honorable, 
 prompt and true to every engagement; as a husband and father, a model 
 worthy of all imitation. His characteristics are a modesty of demeanor, 
 an entire absence of all parade and ostentation and a simple dignity, 
 born of innate purity and self-respect. He has an educated con- 
 science, a large heart, and a practical sympathy, a tender regard for 
 young men who are struggling for an education and a higher life. He 
 is an attractive man personally; he has a somewhat deep set, sharp and 
 steady eye, firm lip, strong chin and high, well-proportioned forehead; 
 all are outward signs of the rare man. He has exercised a strong influ- 
 ence upon the jurisprudence of Wisconsin, and proven a worthy suc- 
 cessor of Whiton, Dixon, Ryan and Cole, the elected chief justices of 
 the court over which Judge Cassoday presides by virtue of his seniority 
 of service. The reports of the supreme court will bear witness to future 
 generations of his ability, industry and judicial power. As a man, he is 
 not less to be admired than as a judge. His is a rounded and complete 
 
 character. 
 
 16 
 
246 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 As thus constituted the court continued until April, 1891, when 
 death removed a giant from the bench in the person of David Taylor, 
 May 4, 1891. John B. Winslow was appointed by Governor Peck and 
 qualified as associate justice in place of Judge Taylor in May, 1891, and 
 continues in the discharge of his duties at the time of this writing. 
 
 JOHN B. WINSLOW. • 
 
 John Bradley Winslow was born in Nunda, Livingston county, New 
 York, October 4, 1851, and is the only son of the late Horatio G. Wins- 
 low; his mother was Emily (Bradley) Winslow. He is a descendant of 
 Kenelm Winslow, second brother of Governor John Winslow of 
 Plymouth Colony and one of the prominent immigrants who came to 
 America about 1632. Mr. Winslow's parents located in Racine, Wis- 
 consin, in 1855, and there he resided until he removed to Madison. His 
 general education was received in the public schools of that city and the 
 Racine college; he was graduated from the latter with the degree of 
 A. B. in 1 87 1. In 1872 he began to prepare for admission to the bar 
 under the direction of E. O. Hand, in whose office he- remained until 
 1873, when he became a clerk and student in the office of Fuller & Dyer. 
 In September, 1874, he entered the college of law of the Wisconsin uni- 
 versity and was graduated therefrom in June, 1875. Returning to 
 Racine, he entered the office of Fuller & Harkness, and, on the with- 
 drawal of Judge Harkness from the firm on account of ill health, Mr. 
 Winslow became a member of the firm, which continued to do business 
 until 1877. In 1879, 1880, 1881 and 1882 Mr. Winslow was city at- 
 torney for Racine. From January, 1880, until 1882 he was in partner- 
 ship with the late Charles A. Brownson, after which date he became as- 
 sociated in that capacity with Joseph V. Quarles, now of Milwaukee, a 
 relation which continued until he became judge of the first circuit, com- 
 prising the counties of Racine, Kenosha and Walworth, a position to 
 which he was called by the electors in April, 1883, by a large majority, 
 and the discharge of whose duties he entered upon in January, 1884. 
 His reelection, without opposition, in 1889 is a higher testimonial to his 
 fitness for the judicial office than can be conveyed by language. He 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 247 
 
 continued in the discharge of his duties as circuit judge until May, 1891, 
 when he became a justice of the supreme court. In April, 1892, he 
 was chosen by the electors, without contest, for the unexpired portion 
 of his predecessor's term, which ended with January, 1896. In April, 
 1895, he was elected for a term of ten years. Though he was opposed 
 at that time, he secured a fair majority of the votes, and, notwithstand- 
 ing his political views were democratic and the state, at the last pre- 
 vious general election, had given an unusually large republican ma- 
 jority, he was supported by many leading lawyers of the dominant party 
 and some of the most prominent journals of the same party. 
 
 Judge Winslow is strongly attached to the Episcopal church, and 
 has served Grace church at Madison as warden. On January 19, 1881, 
 he was wedded to Miss Agnes Clancy; they have five children — two sons 
 and three daughters. 
 
 A gentleman of large experience at the bar of the first and other 
 circuits has furnished the editor the following estimate of Judge Wins- 
 low's judicial career, particularly as circuit judge; the reports of the su- 
 preme court establish his record as a member of that tribunal: 
 
 The first judicial circuit has always been overwhelmingly republican, 
 John B. Winslow always supposed and" gave out that he was a democrat; 
 yet he was elected and-reelected circuit judge by large majorities, in spite 
 of active opposition at the hands of some partisans. Nothing could 
 better illustrate the estimate placed upon his judicial abilities by the 
 bar and people of the counties of Racine, Kenosha and Walworth. 
 
 Mr. Winslow studied law in Racine and was there admitted to the 
 bar. As he entered upon practice it was noticed that he frequently had 
 an adversary who rarely opposed the other lawyers of that or any circuit, 
 viz. : his own sense of right ; that in a controversy he was disturbed if his 
 judgment told him that his antagonist's legal position was the better. 
 It is said of John T. Fish, then of the Racine bar, that, in preparing for 
 trial, he stated his adversary's case fully and fairly, and brought out in 
 the most favorable light all his opponent's points of law and fact, in 
 order solely that he might the better devise means of overcoming them. 
 The same method of preparation was followed by Winslow, but with 
 
248 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 immediate recognition of the legal value of correct contentions and a 
 strong mental disinclination to combat them. This peculiar cast of 
 mind, so rarely possessed by a lawyer, and the resulting ability, or rather 
 intellectual necessity of examining both sides, without regard to predi- 
 lection, impressed his associates. The consequence was his elevation to 
 the bench. 
 
 During his first candidacy for election as circuit judge the only 
 argument urged against him was his youthfulness, based on the maxim: 
 "Old men for counsel." But the people saw that this defect was certain 
 to mend by lapse of time, while the only corresponding change in the 
 old man might be a white beard. 
 
 Judge Winslow's career on the trial bench fully justified the ex- 
 pectations of his associates at the bar. In his decisions there, as later 
 upon the supreme bench, he followed principles rather than author- 
 ities. A rule of law became such on account of its intrinsic reason and 
 justice, rather than because it had been announced by a court in New 
 York or Kansas. 
 
 He always had a clear and correct view of what are stigmatized by 
 the defeated lawyer as technicalities. Recognizing the fact that rules 
 of pleading and practice are necessary to the orderly administration of 
 justice, he gave to them full authority, and so has avoided the not un- 
 frequent predicament of the judge who gives crude justice, based on 
 the impression that the plaintiff is worthy and his case meritorious, and 
 goes "across lots" to a decision; and so he has a\oided sticking in the 
 bark of the letter, which is often the result of undue strictness in ap- 
 plication of rules more or less arbitrary. 
 
 On the bench Judge Winslow has never been open to Bacon's 
 strictures on the "overspeaking judge." Practitioners before him at 
 the circuit remember with gratitude that his interruptions of counsel 
 were only for the purpose and with the result of developing the case and 
 defining the issues. 
 
 As circuit judge, his impartiality was notable. He accomplished the 
 difficult feat of stepping from active practice to the bench, and leaving 
 behind him all bias arising from friendship or antipathy. Xone of his 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 249 
 
 former associates could detect any discrimination on grounds of former 
 relations. 
 
 He always appreciated and carried well the dignity of his office. 
 Only once was this dignity at all shaken. This was years ago, at 
 Kenosha, in a case of breach of promise of marriage, when an Irish wit- 
 ness — all unconscious of any ludicrous element — was detailing the 
 agreement between himself and the defendant, likewise Irish, for a load 
 of hay as marriage brocage fee, and the repudiation of the contract 
 by defendant on account of the age of the wife tendered. Witness 
 testified: "He (defendant) said he wouldn't give a load of hay for 
 such an old heifer as that." 
 
 The manifest grievance of the witness at defendant's breach of 
 faith, the intensity with which defendant regarded the witness, the total 
 absence in the mind of each of any idea that the matter could be re- 
 garded otherwise than seriously, was too much for bench and bar, and 
 a recess was taken precipitately. 
 
 Upon the supreme bench Judge Winslow has earned the commenda- 
 tion of the bar and the people. The same qualities which led to his 
 selection as circuit judge have been constantly manifested. His opin- 
 ions have been terse and condensed and his decisions have proceeded 
 upon reason. At all times he has had the courage to stand by his 
 convictions, regardless of personal results to be apprehended. He 
 seems incapable of servility to precedent. 
 
 As a consequence his opinions, as found in the reports, will require 
 but little revamping and "distinguishing" because of obiter dicta, or on 
 account of divergence from principle by following decided cases. 
 
 The term for which Judge Cole was elected chief justice expired in 
 January, 1892. In the preceding April Silas U. Pinney had been elected 
 a justice of the court; he entered upon his duties simultaneously with 
 Judge Cole's retirement. In the meantime the people had adopted a 
 constitutional amendment declaring that the chief justice and associate 
 justices of the supreme court shall be severally known as justices of said 
 court; that the justice having been longest a continuous member of the 
 court (or in case two or more of such senior justices having served for 
 
250 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the same length of time, then the one whose commission first expires) 
 shall be ex officio the chief justice. The result of this provision was to 
 make Judge Lyon the chief justice. 
 
 SILAS U. PINNEY. 
 
 Distinction as a lawyer and judge has come to Mr. Pinney because 
 his merits and industry have deserved it. For many years before his 
 elevation to the bench he had a high standing at the bar, and was 
 known throughout Wisconsin and the northwest as a lawyer of great 
 ability, large attainments and unimpeachable integrity. Probably, in- 
 deed almost certainly, no member of the Wisconsin bar has argued a 
 larger number of important cases in the supreme court of the state than 
 he. His name appears in every volume of the reports of that court pub- 
 lished since his admission to the bar, either as attorney or judge, with 
 but one exception. Thus, from 1854 to the time of this writing, he has 
 been engaged in forming the jurisprudence of Wisconsin. A close 
 examination of the Wisconsin reports will show that either as reporter, 
 attorney or judge, Mr. Pinney has been an important factor in the judi- 
 cial history of Wisconsin. 
 
 Silas U. Pinney was born in Rockdale, Crawford county, Pennsyl- 
 vania, March 3, 1833. His paternal ancestors, both lineal and collateral, 
 were American for many generations. In 1642 members of the family 
 emigrated from Somersetshire, England, to America and settled in El- 
 lington, Connecticut. From there they moved to Massachusetts. His 
 father, Justin C. Pinney, was born in Becket, Berkshire county, Massa- 
 chusetts; was reared to manhood in Crawford county, Pennsylvania, 
 where Aaron Pinney, grandfather of Silas, located in 181 5. Justin mar- 
 ried Polly M. Miller, of German descent and daughter of a prominent 
 clergyman who ha;d settled in Crawford county in 1792. The family of 
 Justin Pinney came to Wisconsin in 1846 and located on a tract of land 
 in what is now Windsor township, Dane county; here he pursued farm- 
 ing until his death in 1863. Silas was "brought up" on the farm, and, 
 in common with the great majority of the farmers' sons of the early 
 days, had but limited opportunities for receiving instruction. Such as 
 
^^i H c 
 
 7 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 251 
 
 were within his reach he improved to the fullest extent. His love of 
 books was born with him and every opportunity to enjoy them was 
 hailed with delight. A marked characteristic of him as boy and man 
 is a wonderfully retentive memory. When about sixteen years he 
 began to teach school and also concluded to prepare himself for the 
 law; school teaching continued for three winters. During these years 
 all spare time was given to reading standard treatises on legal subjects. 
 In April, 1853, the future lawyer and judge became a student in the law 
 ofificeofVilas & Remington, at Madison; in February, 1854, he became a 
 member of the bars of the circuit and supreme courts; in May following 
 he became a member of the firm of Vilas, Roys & Pinney, the senior 
 partners being L. B. Vilas and Samuel H. Roys. In 1856 Mr. Vilas re- 
 tired from the firm; the business was continued under the name of Roys 
 & Pinney until the former's death in August, 1857. In February, 1858, 
 Mr. Pinney and the late J. C. Gregory formed a partnership, which 
 was enlarged in the following October by the admission of Chauncey 
 Abbott, the firm name being Abbott, Gregory & Pinney. In i860 
 James M. Flower became a member of the firm and so remained about 
 two years. In 1863 Mr. Abbott retired. Messrs. Gregory and Pinney 
 remained partners until 1879. In 1880 A. L. Sanborn became a part- 
 ner of Mr. Pinney's and so remained until 1892, when the senior mem- 
 ber was elected one of the justices of the supreme court. 
 
 It is remarkable and highly creditable to Mr. Pinney that in his 
 earlier years at the bar he attained so great success. The Madison bar 
 then was a strong one, as it has always been. Notwithstanding this 
 fact and the further facts that Mr. Pinney's preparation for the legal 
 profession was somewhat meager, and that he lacked anything in the 
 way of a "pull" to help him get business, he soon acquired an ex- 
 tensive practice and took rank in the front row of lawyers. Edwin E. 
 Bryant in his article in the Green Bag says that Mr. Pinney devoted 
 much time to acquiring knowledge of the correct methods of pro- 
 cedure, and was early noted for his correctness as a pleader and his 
 mastery of every detail of practice in law or equity in the state and 
 federal courts. The adoption of the code of procedure, borrowed from 
 
252 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 New York in 1856, was a radical change in practice, and drove from 
 it some of the older lawyers who were too set in the old ways to 
 learn a new practice. Mr. Pinney was one of the first to master the 
 new method, and he became an authority on all questions of pro- 
 cedure under the code. ... He was highly esteemed at the bar 
 and was retained in much important litigation. It is probably within 
 the bounds of truth to say that no single lawyer in the state has 
 been retained in more cases in number and importance than he. As 
 a lawyer he was remarkably successful, and conducted cases involving 
 great amounts of property with a professional skill and practical sagacity 
 that kept him loaded with retainers and cases. He was several years 
 professor in the college of law of the state university, but the demands 
 of his practice compelled him to sever this connection. He conducted 
 to successful result much of the important litigation growing out of 
 the "land grants" made by Congress to aid in the construction of rail- 
 roads. Out of these and the fickle legislation of the states in disposing 
 of them arose a vast number of perplexing questions to be settled by 
 state and federal courts; and Mr. Pinney's labors in this field were ex- 
 tensive and his services were sought by many parties in interest. 
 
 The same writer says that Mr. Pinney never made the mistake so 
 common to western lawyers. He kept out of politics. His political 
 status was with the democratic party, but he was always independent 
 in politics. He served as city attorney in his youth, and, as a good 
 citizen ought, helped good local government by serving as member of 
 the city council and twice as mayor, once without opposition, and to 
 the great betterment of tax-payers; and in 1869 he was candidate for 
 attorney general, without prospect of election. He also represented the 
 Madison district for one term in the lower house of the legislature; 
 but he has never sought office nor allowed interest in politics to inter- 
 fere in the least with devotion to his profession. 
 
 In 1891, as the term of Chief Justice Cole drew near its close, and 
 his advanced age rendered it just that he be relieved from further 
 judicial labor, the legal profession throughout the state, irrespective of 
 party, very generally signed a call on Mr. Pinney to stand as a can- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 253 
 
 didate for justice of the supreme court. He did so, and in April 
 was elected. He entered upon judicial duty ripe in experience and 
 with a mind most thoroughly trained and equipped for successful labor 
 on the bench. His work thus far has met the most sanguine expecta- 
 tion of friends. Careful and painstaking, he brings to this duty every 
 quality of the judge. With a mind quick and subtle in its discrimination, 
 with a memory of inexhaustible storage capacity, so to speak, with mar- 
 velous familiarity with the law books, he is a helpful man on any bench. 
 Outside of the professional range he has been a wide and careful 
 reader. He is familiar with history, has traveled much in Europe, 
 keenly enjoying everything of historic or biographical interest, and 
 finding the best of it in every place. He has a taste and appreciation 
 for art and architecture rarely found in the inland-bred lawyer of Amer- 
 ica, and is familiar with most that is written of the various schools and 
 stages of sculpture, painting and architecture. A most agreeable com- 
 panion, full of incident and anecdote, well informed as to men and 
 afifairs, abounding with memories of the prominent men of his time, he 
 derives from social intercourse and travel great pleasure and instruction 
 and imparts to others vastly more. As a writer he is clear and concise 
 and master of an excellent judicial style. Never an impassioned orator, 
 his arguments were direct and clear, in good logical order, and they 
 made plain to court or jury the most intricate matters. In his younger 
 days he reported the sixteenth volume of Wisconsin reports, and in 1872 
 he gathered up the unreported and imperfectly reported work of the 
 territorial court and old supreme court, which was published in three 
 volumes as "Pinney's Wisconsin Reports." This work was done under 
 special appointment by the supreme court. 
 
 Mr. Pinney was married March 3, 1856, to Mary M. Mulliken, a 
 native of Farmersville, Cattaraugus county. New York. One son, 
 Clarence, was born to them; he died at the age of twenty. An adopted 
 daughter, Bessie, died at twenty-one. 
 
 On the expiration of Judge Lyon's term (January, .1894) Alfred W. 
 Newman succeeded him and continued a member of the court until his 
 death. 
 
254 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 ALFRED WILLIAM NEWMAN. 
 
 The following sketch of the Hfe, character and public services of 
 Judge Newman is from the memorial of the state bar association 
 adopted at a meeting held February 22, 1898, and prepared by a com- 
 mittee, appointed for that purpose, consisting of J. W. Losey, of La 
 Crosse; J. M. Morrow, of Sparta, and Burr W. Jones, of Madison. The 
 memorial was presented to the supreme court March 21, 1898: 
 
 "Alfred W. Newman, an associate justice of the supreme court of 
 Wisconsin, departed this life at the city of Madison on the 12th day of 
 January, 1898, his death resulting from accidental injury received the 
 day before. 
 
 "Justice Newman was born April 5, 1834, at Durham, Greene 
 county, N. Y. Both on his father's and mother's side he was of Eng- 
 Hsh descent, his ancestors in this country being found among the early 
 puritan settlers of New England. He was born upon a farm and grew up 
 as a farmer's boy, receiving such education as the neighborhood schools 
 afforded, and subjected at home and at school to the strict discipline 
 and religious instruction and observances required by the Presbyterian 
 church, of which both his parents were devout members. 
 
 "When thirteen years of age he accompanied his father to Albany 
 and was there present in court when his father was examined as a wit- 
 ness, and it is said that he then determined to become a lawyer, and 
 that thereafter all his efiforts to obtain an education had that in view. 
 
 "When about eighteen years of age he entered an academy at 
 Ithaca and after two terms there he entered the Delaware literary in- 
 stitute at Franklin, N. Y., where he remained also for two terms. He 
 then entered Hamilton college, at Clinton, N. Y., joining the class of 
 1857, with which, in due course, he was graduated, receiving the de- 
 gree of A. B. While in college he diligently pursued extra law studies 
 under Professor Theodore W. Dwight, and after graduation he con- 
 tinued the study of law in the office of John Olney, Esq., at Windham 
 Center in Greene county, until admitted to the bar at the general term 
 of the supreme court at Albany, December, 8, 1857. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 255 
 
 "In January, 1858, he started for the west. Stopping first at 
 Ahnapee in Kewaunee county, he removed in March, 1858, to Trem- 
 pealeau, in Trempealeau county, which ever after remained his home 
 until his removal to Madison in 1894. 
 
 "He held the office of county judge of Trempealeau county from 
 April, i860, until January, 1867, when he assumed the ofSce of district 
 attorney, to which he had been elected in the fall of 1866. He was 
 reelected district attorney in 1868, 1872, and 1874, thus holding that 
 position for eight years. 
 
 "He was twice elected to the state legislature, serving as member 
 of the assembly in 1863 and senator from the thirty-second district 
 in 1868 and 1869. 
 
 "While he was holding the office of district attorney the legis- 
 lature, in 1876, formed a new judicial circuit — the thirteenth — consist- 
 ing of the counties of Eau Claire, Buffalo and Trempealeau. In April 
 of that year Mr. Newman was elected judge of this new circuit, and 
 discharged the duties of that position until, in 1878, as the result of 
 legislative action, he was transferred to and became judge of the sixth 
 circuit. He was reelected, without opposition, in 1882 and 1888. The 
 third term for which he was elected expired January, I, 1895. 
 
 "In the spring of 1893, Hon. William Penn Lyon, chief justice of the 
 supreme court, having expressed his intention not to be a candidate 
 for reelection, Judge Newman was called out as a non-partisan can- 
 didate and was elected to the position of associate justice. His serv- 
 ices began at the opening of the January term, 1894. He had com- 
 pleted four years of his term and was about beginning the fifth year 
 with the opening of the January term, 1898, on the day — January 
 nth — when he met with the accident which terminated his life. 
 
 "During the period of his general practice of the law, from 1858 to 
 1876, it did not fall to the lot of Judge Newman to take part in litiga- 
 tion so important by reason of the amounts involved or the standing 
 of the parties as to attract general attention to his abihties; but he be- 
 came well known in the region to which his practice was confined as a 
 well equipped and successful practitioner, and a thorough, sound and 
 
2S6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 reliable professional adviser, that he was a close student of the philosophy 
 of the law and well grounded in the fundamentals of legal science. His 
 studious habits and eagerness for the acquisition of knowledge were 
 not confined to the law. His general reading was extensive but dis- 
 criminating in every department of literature. 
 
 "In professional as well as private life his conduct and conversation 
 were irreproachable. On the circuit bench he was kindly and patient in 
 his treatment of the'bar, and at the same time firm and tenacious in 
 upholding the rights and discharging the full duty of the court. He 
 was prompt and clear in passing upon questions arising in the course of 
 a trial, and freely exercised his powers as a judge to keep the issue 
 necessary to be decided by the court or jury unobscured by ir- 
 relevant or immaterial matters. 
 
 "Only those who were with him in the consultation room can speak 
 of what he contributed to the solution of the numerous and important 
 questions presented during the four years of his service on the su- 
 preme bench; but it is not to be doubted that he displayed in this 
 office the same industry, patience, conscientious research and en- 
 Hghtened judgment which mark his entire career. The opinions of the 
 court which fell to his lot to write are generally brief, but always 
 set out with force and clearness the very points effectually decided 
 and the grounds of the decision. 
 
 "The simple statement we have given above of the official positions 
 held by Judge Newman during the forty years of his life in Wisconsin 
 shows the character and influence of the man. In the church, in so- 
 ciety, in politics, at the bar and on the bench he gained the confidence 
 of all who approached him, and in every position and relation he fully 
 justified the confidence reposed in him. 
 
 "Such confidence came to him because he was pure in his private 
 life; faithful to every trust; a lover of truth and justice; a learned, wise 
 and conscientious judge. At every point of his life career in the state 
 of his adoption his example tended to the maintenance of peace and 
 order, religion, morality and justice. 
 
 "The state bar association recognizes that in the death of Justice 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 257 
 
 Newman the bench has lost an enlightened and upright judge and the 
 state a most useful and exemplary citizen." 
 
 In presenting the foregoing memorial J. W. Losey said he was im- 
 pelled to say a few words for himself concerning the life of Judge New- 
 man, whom he had known well for a period of almost two score 
 years: "For thirty-five years, before moving to Madison, Judge New- 
 man lived in the village of Trempealeau, a place of about five hundred 
 people. He never dealt with great events upon which the eyes of the 
 civilized world were turned. He lived a quiet life, in a quiet village. 
 His nature was loyal and capable, as I know, of the strongest, disinter- 
 ested and faithful friendships. He was a gentleman in the true sense 
 of the word — I do not mean in outward polish of manner alone, but in 
 the ever-conscious, instinctive sense of propriety. He always seemed to 
 know the right thing. His integrity was of the finest character. He 
 was the friend of all movements in behalf of humanity and education, 
 and his humanity was as broad as the sky. On the bench he struck at 
 once for the heart and justice of the case before him. He was fearless 
 and never swerved from what he beheved to be the right, and never 
 thought of consequences to himself. In commenting on a case he once 
 said he 'believed a lawyer must have an educated conscience to suc- 
 ceed permanently.' In a trial his thought steered him through cob- 
 webs and shams and enabled him to go right to the point. I do not 
 believe he was ever conscious of prejudice or resentment toward any 
 one. I practiced before him throughout his judicial career and I never 
 heard an angry word from his lips; but he ruled his court with mailed 
 hand and with dignity. In the performance of duty pubhc clamor 
 never moved him, and 'he would not follow the multitude to do evil.' 
 As a man he was entirely frank and truthful. He had nothing to con- 
 ceal, either in his private or public life. He had an amiable disposition, 
 founded on gentleness and goodness of heart. He was modest and 
 shrank from all notoriety. He was a person of even and unruffled 
 temper. In all social relations his influence was deeply felt. His man- 
 ners were simple and pleasing. He was gentle but firm; but gentle- 
 ness is the surest evidence of firmness. His religious life was ex- 
 
258 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 emplary, and yet he never obtruded his beliefs. For thirty years he 
 was at the head of a Sunday school in the village where he lived. Old 
 and young dwelt on his words, and no one can estimate the effect of 
 the lessons in morality inculcated by him in his teachings in this 
 school, nor could those who heard him help being impressed by his 
 earnestness, candid and plain manner of talk, and the principles and 
 lessons inculcated. It is a saying older than the Christian era 'that the 
 life of a nation is in the breath of its children,' and the man who has the 
 patience to voluntarily and persistently teach children is doing work for 
 which but few are fitted and in which but few succeed. Judge Newman 
 endeavored to obey the injunction: 'Fear God and keep his com- 
 mandments, for this is the whole duty of man.' 
 
 "I thus sum up in a few words my estimate of his character. He was 
 not great in the sense that by any great deed he added luster to the his- 
 toric pages of the state of his adoption, but he had great character in 
 the estimation of all who know him well and in the performance of 
 every duty which pertained to any trust ever cast upon him by his 
 fellow-men. Less ought not to be said; more than the simple truth, 
 could he know, he would thank no man for saying." 
 
 J. ^1. Morrow and Burr AV. Jones also made appropriate remarks 
 concerning the life and character of the deceased. The response for 
 the court was made by Chief Justice Cassoday, who said: 
 
 "After having served faithfully as a member of this court for four 
 years and while on his way to the capitol to commence the labors of 
 another year, our late Brother Xewman became the victim of a cruel 
 accident which might have happened to the young and strong as 
 well as the aged and infirm, and twenty-six hours after he breathed 
 his last. The shock came to his beloved family, the members of this 
 court and the people of the state at large as an appalling tragedy. 
 Two years ago he had the misfortune of having a partial stroke of 
 paralysis which disabled him for some months and left him with his 
 speech somewhat impaired, but otherwise in his normal condition. 
 His efforts by exercise and treatment to regain what he had thus lost 
 were heroic and constant. The night before the fatal accident he 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 259 
 
 took his long and favorite walk of nearly four miles and while doing- 
 so congratulated himself upon the improvement in his speech and 
 movements and upon the fact that from the opening of the court, the 
 1st of September, he had, on each assignment, been able to complete 
 his opinions on time — an achievement which most of us had failed to 
 accomplish. But his cherished hope of recovery was suddenly blasted 
 by one misstep while in the exercise of special care. During his 
 forty years' residence in this state his life has been an open book, 
 nearly thirty-two years of that time were spent in public office — 
 county judge, district attorney, member of assembly, state senator, be- 
 sides more than seventeen years as circuit judge. His great popu- 
 larity may readily be accounted for by those who knew him best. 
 He was always modest, faithful, diligent and efficient in the per- 
 formance of duty to the very best of his ability. Possessed of cour- 
 age — moral and physical — equal to any undertaking, he, nevertheless, 
 was naturally very diffident, shrinking from all controversy, rarely ag- 
 gressive, never offensive. It may be safely assumed that he never 
 actively sought office and seldom, if ever, refused office. He had a 
 kind heart, a generous spirit and a broad Christian charity. In his 
 Trempealeau home he was for many years the center of a large circle of 
 friends who were enriched by his counsel and guided by his judgment. 
 He had a remarkable memory, and on his long walks about the city, 
 as conversation turned from one topic to another, he would illustrate 
 the subject by apt quotations from Homer, Horace and Virgil, as 
 well as English and American poets. It was certainly fitting that 
 Hamilton college — his beloved alma mater — should, in the last year 
 of his life, crown him with the high honor of LL. D. 
 
 "A good man with a life full of good works and an abiding Chris- 
 tian faith has passed away. He was the sixth member of this court 
 who has died in the harness — three of them in succession, suddenly 
 and without warning. But the ranks are again closed and the court 
 moves on in duty. Thus, it happens, that in the midst of life we find 
 death; and yet, through the tender mercies of our Heavenly Father, 
 death may be the door which enables the righteous to pass into a more 
 
26o HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 active and nobler existence. The expressions of esteem which come 
 from the bar are fully indorsed by the court." 
 
 In view of the fact that statements have been made in the press 
 to the effect that Judge Newman's election as a member of the su- 
 preme court was wholly owing to adventitious circumstances, the 
 editor thinks it proper to add a brief statement of facts within his own 
 knowledge and which are equally well known to others. In the 
 first place, Judge Newman's election was contested by the friends of 
 an able and experienced judge — Charles M. Webb, who was placed 
 in nomination by a convention of lawyers, many of whom were 
 among the leaders of the bar of this state. The result of that contest 
 was that 123,476 votes were cast for Judge Newman and 73,803 for 
 Judge Webb. The facts constituting the adventitious circumstances 
 referred to were that some time before the spring election of 1893 
 Judge Newman was called to the ninth circuit to try what were known 
 as the "state treasury cases." In those cases the state sought to 
 recover from some of its former treasurers the moneys received by 
 them as interest on state funds deposited by the treasurers in banks. 
 The right of the treasurers to such interest had not previously been 
 questioned, though the pubUc, the state officers and the legislature 
 had full knowledge of the fact that they had regarded such interest 
 as a perquisite of office. Besides seeking to recover the moneys re- 
 ceived by the treasurers the state sought also to recover interest 
 thereon, so that the aggregate amount due was large, and inasmuch 
 as the money recovered would reduce taxation for state purposes 
 public interest in the litigation was keen. Judge Newman gave the 
 state judgment and his judgment was affirmed by the supreme court, 
 though not on precisely the grounds on which he proceeded. What 
 influence these facts had in promoting the election of Judge Newman 
 to the highest court in the state need not be considered. But that 
 they were solely responsible therefor is not according to fact. Long be- 
 fore they occurred the bar of his circuit was practically, if not wholly, 
 united in desiring to see him a member of that court. That bar, then 
 as now, comprised men of the highest character and of large profes- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 261 
 
 sional attainments, men who had practiced before him for years and 
 who esteemed him highly for his personal qualities and regarded him 
 as the ideal circuit judge. Neither as man nor judge does the memory 
 of Judge Newman require vindication in the judgment of the people of 
 this state, but so much has been written in order that, possibly, the 
 future may not do injustice to his memory. 
 
 In politics Judge Newman was a republican, his first vote being 
 cast for John C. Fremont for President. From that time on he never 
 found cause for changing his party allegiance. ■> 
 
 Harlow S. Orton became chief justice on the retirement of Judge 
 Lyon and was such at the time of his death. Thereupon Judge Casso- 
 day became the presiding officer of the court. Roujet D. Marshall 
 qualified as justice on the 5th of August, 1895. 
 
 ROUJET DE LISLE MARSHALL. 
 
 R. D. Marshall, justice of the supreme court of the state of Wis- 
 consin, is one of the strongest characters which figure in the history of 
 its bench and bar. Whether considered as a practitioner or a judge 
 his career throughout has evinced not only remarkable energy and un- 
 tiring industry, but that particular poise of professional character and 
 great reserved force which have marked him as a man of continual 
 advancement. 
 
 Judge MarshaU was born in Nashua, N. H., on December 26, 1847, 
 his father, Thomas Marshall, who was also a native of the Granite 
 state, being in early life a manufacturer of cotton goods at the above 
 named place. 
 
 The American founder of the family was Thomas Marshall, who 
 came from England in 1633, settled in Boston and, as stated in the early 
 records, "kept a ferry from the mill point unto Charlestown and Win- 
 nissimmet." One of his sons led a force of mihtiamen under the 
 doughty old fighter Colonel Josiah Winslow, in his campaign against 
 the Narragansetts, and was killed by the Indians in 1675. The great- 
 grandfather of the judge, Joseph Marshall, was born at Chelmsford, 
 Mass., in 1734, participating in the battle of Lexington, the siege of 
 17 
 
262 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Boston, and the battles of Bunker Hill and Bennington. Before the 
 engagement last named he had removed to Ware, N. H., his son, 
 Thomas, and the grandfather of our subject, becoming a resideiit of 
 Bradford, which was the birthplace of Judge Marshall's father. 
 
 His mother, Emeline (Pitkin) Marshall, was of that noted family 
 which numbers among its members William Pitkin, who emigrated 
 from England in 1659 and became the first attorney general of Con- 
 necticut; Colonel George Pitkin, who was a leader at the siege of Bos- 
 ton, and William Pitkin, who was one of the drafters of the plan for 
 colonial union adopted at Albany in 1754 and which was the fore- 
 runner of the articles of confederation and the national constitution. 
 Emeline Pitkin was born on a Vermont farm in 1820 and was married 
 to Thomas Marshall in 1842. 
 
 On account of ill health the latter was obliged to retire from the 
 business of cotton manufacturing, and in 1854 removed with his family 
 from Nashua, N. H., to Delton, Sauk county, Wisconsin. The son, 
 Roujet, was then seven years of age, and in the common schools and an 
 academy of that place he received most of his early education. The 
 Baraboo academy and Lawrence university, at Appleton, also ad- 
 vanced him in the higher branches. He had already commenced the 
 study of law. however, and in March, 1873, was admitted to practice 
 at Baraboo, Wisconsin, previous to his admission to the bar having 
 filled the positions of justice of the peace and member of the school 
 board. 
 
 Mr. Marshall's legal career was begun at Chippewa Falls as a part- 
 ner with N. \A'. Wheeler, the style of the firm being Wheeler & \lar- 
 shall. His remarkable strength of body and of mind, his breadth of 
 intellect and his familiarity with the details of the great lumber in- 
 terests of the Chippewa Valley enabled him to successfully develop a 
 legal business which was as large in volume as it was important in its 
 nature. While carrying on these heavy interests he also served for 
 six years as judge of Chippewa county — from 1876 to 1881 — when he 
 severed his connection with Mr. Wheeler. 
 
 Judge Marshall next formed a partnership with John J. Jenkins, 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 263 
 
 which continued until 1889, when he was elected judge of the eleventh 
 judicial circuit, having for the preceding five years (1884-89) served on 
 the board of regents of the state university. As stated by General Ed- 
 win E. Bryant in his "History of the Supreme Bench of Wisconsin:" 
 "The business of this circuit was large, involving important litigation. 
 It was greatly increased by the sudden growth of the city of Superior 
 and the extension of numerous railroads into the northern portion of 
 the state, resulting in increase of population and manufacturing inter- 
 ests. Judge Marshall performed this laborious duty with such ability 
 and such energy withal as to indicate to the profession, and the public 
 as well, that the state needed his services in the larger judicial field. 
 He was reelected to the circuit without opposition in 1894. Upon 
 the death of Chief Justice Orton, in 1895, Judge Marshall was ap- 
 pointed by Governor Upham to the resulting vacancy as associate 
 justice, after nearly seven years' service on the circuit. He entered upon 
 the duties of this place at the September term, 1895. He was elected 
 by the people without opposition in April, 1896, to fill the unexpired 
 term. In the recent April election he was reelected for the full ten- 
 year term by a unanimous vote, a testimonial of confidence which he 
 has fairly earned (term expires the first Monday in January, 1908). 
 Young, strong, with a capacity for "work such as few men possess, a 
 long career of usefulness may well be predicted of this jurist." 
 
 Although Judge Marshall's elevation to the bench was an honor 
 which he deeply appreciated, still it involved a financial sacrifice which 
 few of the profession would have so promptly accepted. His practice 
 had largely pertained to corporation law and to real estate and busi- 
 ness transactions of great magnitude, the result naturally being that 
 it was most gratifying both as to remuneration and the importance of 
 the legal questions involved. But the unanimity with which he was 
 repeatedly called to the bench placed the honor before him in the light 
 of a duty which should be performed even at the sacrifice of private 
 interests. 
 
 In politics Judge Marshall is a repubHcan. He is an adherent to 
 the Methodist faith, although not a member of the church. His wife 
 
264 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 was Miss Mary E. Jenkins, of Baraboo, to whom he was married in 
 1869. 
 
 At the request of the editor a member of the bar of Judge Mar- 
 shall's circuit has written of the latter's career at the bar and on the 
 circuit bench. Of his work on the supreme bench it is not necessary 
 to say anything; his opinions speak for him. The- same wonderful in- 
 dustry which characterized him as lawyer and circuit judge has fol^ 
 lowed him to the supreme court, and there attracts attention even 
 among the very industrious men with whom he is associated. 
 
 "During the years that Mr. Marshall was at the bar the immense 
 lumber interests of northern Wisconsin were being developed and or- 
 ganized. As the attorney and confidential adviser of most of the large 
 corporations created to conduct this business Judge Marshall's abilities 
 found a wide field. Combining legal attainments of a high order with 
 the judgment and foresight of the successful man of business, his great 
 energies, for many years prior to his election to the bench, were largely 
 employed in shaping the policies and protecting the legal rights of the 
 numerous lumber companies doing business on the Chippewa and 
 Eau Claire rivers and their tributaries. 
 
 "Outside of strictly corporation work the general practice of his 
 firm was likewise large, and for some years prior to 1888 Marshall & 
 Jenkins had the most important and lucrative law practice in the 
 northern portion of the state, if not in the entire state. 
 
 "As a practitioner Judge Marshall was noted for his careful prepara- 
 tion of cases, remarkable grasp of details, familiarity with legal prin- 
 ciples, stubborn tenacity of purpose and unyielding loyalty to the in- 
 terest of his clients. As a trial lawyer he was solid rather than 
 showy. Although more than ordinarily successful as a jury lawyer, he 
 was not a forensic orator within the usual meaning of that term. He 
 secured verdicts by force of clear and logical presentation of evidence 
 rather than by any trick of eloquence in reviewing it before the jury. 
 His career on the circuit bench was an enviable one. He was elected 
 judge of the eleventh judicial circuit in the spring of 1887, after a 
 contest somewhat unique in the history of the state. At that time the 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 265 
 
 anti-corporation fever was raging with much vehemence in northern 
 Wisconsin and a vigorous campaign was made against Mr. Marshall on 
 the ground that he was a corporation lawyer. He and his supporters 
 accepted the issue tendered by the opposition and, Mr. Marshall's abil- 
 ity being conceded by all, the question whether a corporation lawyer 
 was disqualified on that account for holding judicial office was fought 
 out with great vigor by the voters of the circuit. Mr. Marshall's elec- 
 tion by ah overwhelming majority showed that it is not always easy 
 to stampede the people by a senseless cry, and his subsequent conduct 
 on the bench proved how senseless indeed the cry of his opponents 
 had been. If any just criticism could be made of his impartiality as 
 a judge it was not that he favored corporations. The bent of his mind 
 seemed rather to be towards holding them to the strictest account- 
 ability, and he had not long presided as judge before those who had 
 been most bitter in opposition were loudest in praise of his inde- 
 pendence and impartiality. The eleventh judicial circuit is the largest 
 in area in the state and has always been a field of much and important 
 litigation. At the time of Mr. Marshall's election to the judgeship the 
 amount of legal business, which had for some years been accumulating 
 in it, was very large, while the remarkable development of Douglas and 
 -other of the northern counties, then just setting in, added greatly to 
 the natural volume of court business. Judge Marshall's well known 
 capacity for work was for several years put to the severest test. It is a 
 matter of record that during his first term of office more jury cases 
 were disposed of in his court than in any two circuits in the state com- 
 bined. Nor did the character of his work suffer by comparison with 
 that of the learned judge whom he succeeded or of the very able judges 
 then presiding over the other judicial circuits of the state. 
 
 "He possesses the judicial temperament. As a judge he was clear 
 and cool headed, free from marked prejudices, unmoved by popular 
 clamor or opinion, quick in decision, accurate and logical in expression, 
 and, withal, possessing that impressive dignity of conduct and carriage 
 so essential to round out the popular conception of the model judge." 
 
 The untimely death of Judge Newman caused the next change in 
 
266 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the personnel of the court and Charles V. Bardeen was appointed his 
 successor. 
 
 CHARLES VALDO BARDEEN. 
 
 Charles V. Bardeen, a justice of the supreme court, is a native of 
 the state of New York, being born in Brookfield, Madison county, on 
 September 23, 1850. His parents were Rasselas and Maria (Palmer) 
 Bardeen, his father being a farmer and migrating to the town of Albion, 
 Dane county, Wisconsin, when the boy was but five years of age. 
 Here his younger days were passed, and, after he had graduated from 
 the district school and the Albion academy, he naturally gravitated to 
 the University of Wisconsin. Although he entered as a junior student, 
 on account of failing eyesight he was unable to complete his course. 
 For a time after leaving college, until December, 1872, he taught 
 school at different localities in Dane county, but at that time sought a 
 change of climate and new scenes in Colorado. For two years he en- 
 gaged in various occupations at Colorado Springs, Pueblo and Del 
 Norte, when he returned to his adopted state. 
 
 Upon locating anew in Wisconsin, Mr. Bardeen commenced the 
 realization of a long deferred ambition to enter the domain of the law. 
 Entering the office of J. P. Towne, of Edgerton, as a student, he indus- 
 triously pursued his studies, but completed his course in the law de- 
 partment of the state university, graduating therefrom in June, 1875. 
 His first practice was at Wausau, Marathon county, as a partner of 
 Roger C. Spooner, and under the firm name of Spooner & Bardeen this 
 partnership continued for about one and a half years, when C. H. 
 Mueller became an associate. After a short time the new firm was 
 dissolved, and Judge Bardeen practiced alone until he formed a legal 
 connection with General John A. Kellogg, which continued until the 
 latter's death in 1882. Soon thereafter he formed a partnership with 
 W. H. Mylrea, and after about one year Louis Marchetti was received 
 into the firm, which was dissolved on January i, 1892, when Judge 
 Bardeen qualified as judge of the newly formed sixteenth circuit. He 
 was reelected judge in April, 1897, and served until his appointment to 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 267 
 
 the supreme bench, to succeed Judge Newman, on February 4, 1898. 
 In April, 1898, he was elected, without opposition, for the unexpired 
 portion of Judge Newman's term, or until January, 1904. 
 
 In view of the above record it is evident that Judge Bardeen has 
 been remarkably successful both as a practitioner and as a fair-minded 
 and learned counselor. As a fact he has been employed in much 
 heavy and important Htigation, both civil and criminal. One of the 
 most noted cases of the latter nature in which he has been engaged 
 was the Mead murder trial, held at Waupaca. Whatever, in fact, he 
 has done has been accomplished conscientiously and ably, and his 
 steady advancement from the position of a hard-working attorney to 
 the highest judicial honor in the state is sufficient evidence that his 
 worth has been recognized by the people and the profession. 
 
 Judge Bardeen is a republican, but has never been a politician in 
 the narrow sense of the word. He is a Mason of high degree, being a 
 member of the Forest Lodge, No. 130; Wausau Chapter 51, and St. 
 Omer Commandery, K. T., No. 19. In 1892 he was elected grand 
 high priest of Wisconsin, R. A. M. Married on June 17, 1876, to 
 Frances H. Miller, of Albion, he has had three children: Eleanor, 
 Charles V., Jr., and Florence. 
 
 As a lawyer and judge of the circuit court Judge Bardeen had es- 
 tablished such a reputation for industry, good judgment, knowledge 
 of the law and ability to apply its principles to the ever-varying states 
 of facts which are disclosed in litigated cases that not only the bar of his 
 circuit but the bars of adjoining circuits and lawyers in various other 
 parts of the state who had tried causes before him were enthusiastic 
 in their endorsement of him as worthy to become a member of the 
 supreme court. Some written opinions of his as circuit judge in causes 
 appealed showed a measure of ability and degree of industry which 
 added largely to his reputation throughout the state. Judge Bardeen's 
 work as a member of the supreme court thoroughly sustains the repu- 
 tation he made on the circuit bench and the claims of his friends as 
 to his fitness for the place he occupies. 
 
268 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Sixteen persons have been members of the supreme court since its 
 organization as a separate tribunal June i, 1853. Of these Judge Cole 
 served the longest — from June 19, 1855, to the first Monday in Janu- 
 ary, 1892. Judge Lyon's period of service was the next in length — 
 from January 20, 1871, to the first Monday in January, 1894. Judge 
 Paine's is the only case where an interregnum intervened between two 
 periods of service. No person appointed to till a vacancy has failed of 
 an election by the people. But one judge has failed of reelection 
 where he has been a candidate therefor before the people — ^Judge Craw- 
 ford. Judge Smith is understood to have much desired reelection, but 
 was set aside by the managers and leading men of his party on account 
 of his state-rights views. But four men have been chief justice during 
 the time that office was filled by election — Whiton, Dixon, Ryan, Cole. 
 Of the members of the court six have died in office — Whiton, Ryan, 
 Paine, Taylor, Orton and Newman. There have been three resigna- 
 tions — Dixon, Downer and Paine. But two former members of the 
 court are now living — Cole and Lyon. No member of the court, while 
 serving or afterward, has been elected or appointed to high official 
 station, though Judge Lyon, after a period of rest, served the state 
 with great acceptability in the responsible position of a member of 
 the state board charged with the duty of maintaining and super- 
 vising the charitable, correctional and penal institutions of the state. 
 
 Four persons have occupied the position of clerk of the supreme 
 court since the formation of the state government — J. R. Brigham, 
 appointed August term, 1848; Samuel W. Beale, appointed December 
 12, 1851; La Fayette Kellogg, appointed June i, 1853, and Clarence 
 Kellogg, appointed June 11, 1878. During that time five persons 
 have discharged the duty of reporter — D. H. Chandler, 1849-1852; 
 Abram D. Smith, 1853-1860; Philip L. Spooner, 1860-1862; O. M. 
 Conover, 1862-1883; F. K. Conover, 1883-1898. 
 
CHAPTER VIII. 
 
 JOHN R. BENNETT'S ADDRESS TO THE STATE BAR ASSO- 
 CIATION. 
 
 On the 7th, 8th and 9th of June, 1898, the fiftieth anniversary of the 
 .organization of the state of Wisconsin was observed at Madison. Vari- 
 ous meetings and reunions were held. On the- 8th a meeting of the 
 state bar association was held in the supreme court room, presided over 
 by the president of the association, John B. Cassoday, the chief justice 
 of that court. Seated with him on the judges' bench were Orsamus 
 Cole and William P. Lyon, former members of that court, and John R. 
 Bennett, judge of the twelfth circuit. The latter delivered the follow- 
 ing address: 
 
 Mr. President and Gentlemen of the State Bar Association: 
 
 I commenced the study of law on- the 27th day of April, 1844, with 
 Western W. Wager, of Brownville, JefTerson county, New York, read- 
 ing with him for six months, teaching school the following winter for 
 twenty-four dollars a month, boarding myself; and on the 21st of April, 
 1845, resumed the study of law with Dyre N. Burnham, of Sacketts 
 Harbor, New York, with whom I continued my professional studies 
 until the 2d day of October, 1848, when I started for Wisconsin. I 
 little dreamed when I was reading law at Sacketts Harbor that there 
 was residing there, at Madison Barracks, a young captain in the United 
 States army, then about 23 years of age, destined to become the greatest 
 general of his time and one of the greatest of any age or country; and 
 also to become the President of the United States for eight years. But 
 such was the fact. For Captain Ulysses S. Grant was then at Sacketts 
 Harbor in Madison Barracks. And Simon B. Buckner was also there, 
 who, as brigadier general in the Confederate states army, on the i6th 
 day of February, 1862, surrendered Fort Donelson to then Brigadier 
 
 General U. S. Grant, with about 15,000 prisoners. I did not know 
 
 269 
 
270 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Grant at Sacketts Harbor, but did know Buckner, and often saw him 
 walking the streets of the village, erect and soldier-like, not looking to 
 the right or left, but carrying himself like most of those graduating at 
 West Point. 
 
 I also knew Charles S. Lovell at Sacketts Harbor, who became a 
 Union general during the rebellion, and Nathaniel Lyon, quite inti- 
 mately, as he belonged to our young men's association, and took part in 
 their debates. He visited Sanford A. Hudson and myself just before 
 the breaking out of the rebellion. He was killed at the battle of Spring- 
 field, Missouri, or, as it is called, the battle of Wilson's Creek, on the 
 loth day of August, 1861. Had he lived until the close of the rebeUion 
 he undoubtedly would have become one of the great Union generals, 
 for no one had accomplished more than he at the time of his death. 
 
 On the 13th day of October, 1848, as the shades of evening were 
 settling down upon the landscape, I reached Janesville, then a little 
 hamlet of about 1,000 inhabitants, stopping at the Janesville "Stage 
 House," a two-story frame building, where now stands the fine four- 
 story brick hotel, the "Myers House." I greatly admired the beauty 
 and fertility of the surrounding country and the intelligence and high 
 character of the people dwelling there; so much so that I at once con- 
 cluded to cast my lot with them, and have ever since remained in Janes- 
 ville. 
 
 I have been unable to find what the population of the state was in 
 1848, but in 1840 it was 30,000; in 1847, 210,516; in 1850, 305,391. 
 So that I presume in 1848 the population was about 225,000. At all 
 events, at the general election in November, 1848, the state elected 
 three members of Congress; we were in the second district, and that 
 fall three candidates were running for Congress in that district, viz., A. 
 Hyatt Smith, hunker democrat, of Janesville; General George W. 
 Crabb, free soil democrat, also of Janesville, and Hon. Orsamus Cole, 
 of Potosi, Grant county, the whig candidate. 
 
 On the 1 6th day of October, 1848, only three days after I arrived 
 in Janesville, there was a political meeting of the whigs held there, 
 which was addressed by Orsarnus Cole, the whig candidate, and the 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 271 
 
 gallant and eloquent Edward D. Baker, who fell at the disastrous 
 assault at Ball's Bluff, while bravely leading his brigade, on the 21st 
 day of October, 1861. As he mounted the speaker's platform every act 
 and motion of his showed the great orator that he was. One can 
 never forget the glowing tribute he paid to his old commander. Major 
 General Zachary Taylor, under whom he fought in the war between this 
 country and Mexico. And when he came to speak of local matters, he 
 said "I greatly admire your exceedingly beautiful country and the 
 equally noble people who reside here. I like the way you do things, 
 for I see you have put a live Cole on the back of a Crabb; and I 
 prophesy that the Crabb will crawfish before the end of the contest." 
 And he did. It seems hardly necessary to add that Cole was elected by 
 a good majority, and that he made a valuable and useful member of 
 Congress, representing his state with honor to himself and entire satis- 
 faction to the people; so that soon after they called him to a higher 
 and more honorable position in the state. For on the 19th day of June, 
 1855, he was chosen associate justice of the supreme court of the state, 
 holding the office until November nth, 1880, when he was made chief 
 justice; holding the latter position until the first Monday in January, 
 1892, making a period of continuous judicial service of more than 
 thirty-six and one-half years. It seldom falls to the lot of any lawyer 
 to continue in sO' high and responsible an ofifice so many years. It 
 shows that the people of the state appreciated the purity of his life, and 
 the eminent qualifications he brought to the exalted position he so ad- 
 mirably filled. It has been said, "It is always unsafe to praise the living. 
 It is only when death has sealed life that we can speak with confidence." 
 I hardly agree with the above statement, and believe we can say now 
 with the greatest assurance that the pubHc life of the Honorable Orsa- 
 mus Cole has been a long trail of "honorable memories." It has ever 
 been above reproach and without the slightest stain. His great learn- 
 ing in the law, his entire impartiality, his clearness of perception and 
 soundness of judgment made him a model judge; and the state will 
 long continue to receive the benefit of his learned and upright judicial 
 career. 
 
272 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 At the ^lay term of the circuit court for Rock county, in the year 
 1849, I first made the acquaintance of the Honorable Matthew H. 
 Carpenter. He was then Httle past twenty-four years of age. He un- 
 doubtedly became more learned in the law and riper in scholarship 
 later in life, but never more witty and brilliant than he was then. He 
 argued four certioraries with great clearness and brevity, ending each 
 argument with the ring of a hammer striking an anvil. Judge Whiton 
 took the papers in the four cases, saying he would decide them the fol- 
 lowing morning. The next day at the opening of court he took up one 
 case and decided it in favor of Carpenter; the next one against him; and 
 the third one in his favor, and the fourth against him. Carpenter 
 turned to Jordan and myself, who were sitting quite near him, in a 
 whisper said, "By Jupiter, boys, I wish I had another case, as I would 
 hke to see what he would do with it." But I think I should state that 
 Whiton's decisions in the four cases were so correct and satisfactory 
 that not one of them was ever taken to the supreme court. 
 
 Soon after reaching Janesville I made the acquaintance of Charles 
 Stewart Jordan, a son of Ambrose S. Jordan, one of the great lawyers 
 of Xew York, and attorney general of that state during the anti-rent 
 excitement. Charles S. Jordan was, at the time I made his acquaint- 
 ance, a partner of A. Hyatt Smith, at that time one of the most influ- 
 ential and important personages of the state. Jordan was one of the 
 revisers of the revised statutes of 1849. And I desire to say in this 
 presence that I ever regarded him as one of the most brilliant and able 
 men that I have ever met in ^^'isconsin or anywhere else. He was a 
 great jury lawyer, and equally strong before the court. And in constru- 
 ing statutes of obscure or doubtful meaning I have never seen his su- 
 perior. I was his partner from 1852 to about 1856, when he left the 
 state to go into business with his aged father in the city of Xew York; 
 but he remained there only a short time when he came west again, 
 stopping a short time with his father's brother at ^Morris, Illinois, but 
 finally settled in Chicago, where he died about fourteen years ago. 
 
 The first time I saw him after he came to Chicago I said to him, 
 "Jordan, I have been looking in the Chicago papers, hoping to find 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 273 
 
 you engaged in some of the trials of that city, well knowing if you once 
 get a foothold you were abundantly able to sustain yourself." Looking 
 me full in the face, he replied, sadly, "No, John, I have sinned away 'the 
 day of grace.' " 
 
 He and Carpenter were great personal friends, and were always to- 
 gether when they could be. They were frequently heard discussing 
 questions of law. Carpenter generally gave up to the more weighty 
 and conclusive arguments of his friend. And I am firmly persuaded 
 that in original mental endowments Jordan was the superior man; but 
 in their subsequent careers. Carpenter far excelled him as a lawyer and 
 statesman; but to one who knew them both this is readily accounted for. 
 Soon after Janesville became a city a public meeting was called for 
 the purpose of voting aid to the "Rock River Valley Union railroad," 
 now the Chicago & Northwestern. The more wealthy men of the city 
 were violently opposed to this. At this meeting a gentleman of con- 
 siderable wealth, who had been in the habit of loaning money at fifty 
 per cent, made a strong argument against the proposition, and when he 
 sat down Jordan was called upon to reply to him. As he took the plat- 
 form, this wealthy gentleman noticing that his shoes were muddy 
 shouted out in loud tone, "Take off your shoes!" Jordan instantly re- 
 plied, "God said to Moses at the burning bush 'take off thy shoes from 
 off thy feet, for the place whereon thou standest is holy ground.' My 
 friend is mistaken in thinking that this hall is like the place on which 
 Moses was standing, holy ground. But there is still another more im- 
 portant distinction. That command was given to Moses by God 
 Himself. And I presume my friend has not carried his self-deception 
 to the extent of thinking he is God Almighty. And if he has not, he is 
 inexcusable for giving any such command to me." 
 
 This gentleman had been quite severe upon those who favored 
 voting aid to the company. Jordan proceeded with his argument, but 
 was soon interrupted again by the same gentleman; Jordan then said, 
 "I desire to call my friend's attention to one of the Psalms of David 
 which seems appropriate to his case," and repeated the 15th Psalm as 
 follows: 
 
274 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 "Lord, who shall abide in thy tabernacle? who shall dwell in thy 
 holy hill? 
 
 "He that walketh uprightly and speaketh the truth in his heart. 
 
 "He that backbiteth not with his tongue, nor doeth evil to his 
 neighbor, nor taketh up a reproach against his neighbor. 
 
 "In whose eyes a vile person is contemned; but he honoreth them 
 that fear the Lord. He that sweareth to his own hurt, and changeth 
 not. 
 
 "He that putteth not out his money to usury," and as the last words 
 fell from his lips he pointed his finger at his opponent. The efifect was 
 electrical, and a storm of applause burst from the people in every part 
 of the hall. The debate ended there, Jordan carrying his point by a 
 very large majority. 
 
 And I will further say that while Jordan remained in Rock county, 
 there was hardly an important contested case in which he was not em- 
 ployed, always taking a leading part. 
 
 He was a thorough and appreciating reader of Shakespeare and one 
 of the finest readers of the poet that I ever listened to. One day he was 
 reading the Merchant of A'enice in our office, and became deeply inter- 
 ested in the play, and coming to the place where Portia, as judge, says: 
 
 "Come, merchant, have you anything to say? ' 
 
 And Antonio replies: 
 
 "But little. I am armed and well prepared; 
 Give me your hand, Bassanio, fare you well! 
 Grieve not that I am fallen to this for you; 
 For herein fortune shows herself more kind 
 Than is her custom; it is still her use 
 To let the wretched man outlive his wealth. 
 To view with hollow eye and wrinkled brow 
 An age of povert}'; from which lingering penance 
 Of such miserj- doth she cut me oft'. 
 Commend me to your honorable wife;" 
 Tell her the process of Antonio's end; 
 Say how I loved you, speak me fair in death; 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 275 
 
 And when the tale is told, bid her be judge, 
 Whether Bassanio had not once a love. 
 Repent not that you shall lose your friend, 
 And he repents not that he pays your debt; 
 For if the Jew do cut but deep enough, 
 I'll pay it instantly with all my heart." 
 
 As he reached the conclusion of Antonio's reply to Judge Portia's 
 question, his feelings overcame him, and he could not proceed further, 
 and with tearful eyes and in broken accents he said, "Boys, Antonio is 
 busted!" 
 
 Another instance which I fear you will hardly think worth repeat- 
 ing, I will call attention to, as it shows the poetic temperament of the 
 man. He and I had been eighteen miles out to Magnolia to try a case 
 involving the fraudulent transfer of personal property, trying it all day 
 and all night, until about four o'clock in the morning, when we started 
 home in our carriage. The morning was calm and beautiful, the land- 
 scape covered with a slight haze. Jordan, being weary, had fallen 
 asleep, when the carriage gave a sudden jolt, causing him to open his 
 eyes, and looking east, he saw the sun just rising above the "Magnolia 
 Hills," when he exclaimed, "Night's candles are burnt out, and jocund 
 day stands tiptoe on the misty mountain tops," and immediately went 
 to sleep again. 
 
 You may think I have dwelt longer in speaking of him than the oc- 
 casion calls for. But being warmly attached to him on account of his 
 kind and gentle nature, as well as his brilliant abilities and manly quali- 
 ties, and not knowing that a single line has e\'er been written in this 
 state concerning him, I could say no less. 
 
 As before suggested, I first saw Judge Whiton presiding as a circuit 
 judge at the May term of the circuit court for Rock county in 1849. 
 He looked, spoke and acted like the almost perfect judge that he really 
 was. I have seen many men on the bench, but never saw one excel 
 him in noble judicial bearing. He was then about forty-five years of 
 age, having been born on the 2d day of June, 1805. He seemed to me 
 then much older than he was, but no wiser than I then believed and 
 
276 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 afterwards knew him to be. He resembled in learning, impartiality, 
 clearness of judgment and great dignity of manner that greatest Jurist 
 of the northwest, the late Thomas Drummond of Chicago, for more 
 than thirty-four years United States district and circuit judge for the 
 northern district of Illinois, more than any other judge to whom I can 
 compare him. 
 
 He was circuit judge only about four years, being elected in Sep- 
 tember, 1848; and in 1853, when a separate supreme court was or- 
 ganized in the state, he was chosen chief justice and held that position 
 until his death, April 12th, 1859, so that he was not quite fifty-four years 
 old at the time of his death. I looked upon him then as quite an aged 
 man, and can hardly realize that he died so young, for now I look upon a 
 man of only fifty years as quite a young man. I sat up with him one 
 week before his death. He knew I was coming, and his wife said, be- 
 came quite anxious before I reached there, which was some time after 
 dark. As I went to his bedside, he smiled, reached out his hand, taking 
 hold of mine, and giving it a gentle pressure, from all which I perceived 
 that he knew me perfectly well; but he had so far lost the power of 
 speech, that while he tried to talk, I could not understand a word he 
 said, but his wife could, and explained the words he used. I was to sit 
 up with him again in one week, but on the afternoon of that day death 
 relieved him from further suffering and pain. I heard a lawyer of con- 
 siderable wealth and good standing in the profession argue a question 
 at length before him, to which the judge paid the strictest attention, and 
 when the counsel took his seat, Judge Whiton decided the question 
 against him, and while proceeding to give his reasons for the decision, 
 the counsel again sprang to his feet, and said with considerable vehe- 
 mence, "Your honor, I am astounded at your decision; I repeat, I am 
 astounded at your decision; it is in conflict with all the authorities to 
 which I have called your attention!" The judge waited until he took 
 
 his seat, and then quietly remarked, "Mr. , I cannot say that I 
 
 am astounded at anything you have said ; but will say that I will not sit 
 here and listen to such language again with impunity." This re- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 277. 
 
 bul^e was quite sufficient, and the lawyer was never known again to 
 offend in like manner. 
 
 In 1856 or 1857 I had a criminal case pending in the supreme court, 
 in which my client had been convicted of stealing a plow, in the circuit 
 court for Rock county, held by A. S. Collins, then circuit judge for 
 Dane county. After the jury came in and delivered their verdict I re- 
 quested that the jury be polled. This being done, one of them said 
 while he had agreed to the verdict, he had doubts about the defendant's 
 guilt. The judge told him he need not argue the case, but should give 
 a direct answer to the question, "Was that, and is that still your ver- 
 dict?" The juror then answered, "I will say yes, because I subscribed 
 to it." The judge again told the juror that it was his duty to give a 
 direct answer, yes or no, and the juror answered yes. 
 
 While the case was pending in the supreme court my client, without 
 my knowledge, called upon Judge Whiton at his home in Janesville, and 
 coming into my office soon after, with a frightened look and manner, 
 gave me this account of his interview with the judge: "I called on the 
 judge and asked him when my case would come on, and he informed 
 me when the term commenced. I then took out a twenty dollar gold 
 piece and handed him, expecting he would take about three dollars for 
 his trouble and hand me the balance, but he flew mad in a moment, and 
 with intense indignation said: 'You scoundrel! You offer me a 
 bribe? Get out of my house quick or I will kick you out,' " and the client 
 added, "I left as soon as possible." And he then said further, "The 
 judge was awful mad, and do you think he will now pitch into me up in 
 the supreme court?" I replied, "No, he will decide your case according- 
 to law, notwithstanding your bad, or at least, your questionable con- 
 duct at his house." Soon after my cHent left the office Judge Whiton 
 called on me with an indignant and honest severity beaming from every 
 feature, and said, "Mr. Bennett, what kind of a client have you got? 
 Did you know he was coming to my house?" I said, "Your honor, I 
 did not," saying further, "He has just left the office greatly frightened;" 
 and I gave him an account of the interview as related to me by the client. 
 The judge then stated that he came to his house, and said he had a case 
 18 
 
278 HISTORY OF THE BENCH AXD BAR OF WISCONSIN. 
 
 in my court, and asked when it would be heard, and I told him, as 
 near as I could. Then he added, "Well, judge, I suppose it will go 
 pretty much as you say up there," at the same time handing me a 
 twenty dollar gold piece, when I said "You scoundrel! get out of my 
 house quick, or I will kick you out." I may add that Judge Whiton 
 did not pitch in against my client in the supreme court, but all the 
 judges were unanimous for reversal. 
 
 In the year 1857 I had occasion to go to Vernon county to try a case 
 for a man named Plummer, of New Hampshire, a partner of a gentleman 
 in that county, the partnership being engaged in the manufacture of 
 lime and barrels. After the evidence was all in I requested the court 
 to give an instruction to the jury that "it was only in a business strictly 
 mercantile that one partner could bind the other by giving a promissory 
 note." Judge Gale, the presiding judge, thinking of ordinary mer- 
 chants, and not seeing that the business in which the firm was engaged 
 was not strictly mercantile, said "i\Ir. Bennett, I do not think that is 
 the law." I said, "Your honor, there is no question but what that is 
 the law," and taking up Smith's ]\Iercantile Law which I had with me, 
 I read from it the very language of the instruction I had requested him 
 to give. He hesitated a moment, moving uneasily on the bench, and 
 said, "I will bet you fifty dollars that is not the law." I replied, "It is 
 against my principles to bet, and besides, I was not aware that legal 
 questions in our courts were settled in that manner." LeRoy Tucker, 
 a lawj-er of La Crosse, who was present, said I should have taken the 
 bet, as then the judge would have been compelled to back down as he 
 would not have dared to make bets while sitting as judge. At the 
 supper table Judge Gale said to me, "I owe you an apology: I had no 
 idea of betting, but made that expression to show my strong dissent 
 from your position." I replied, "That is the way I understood you." 
 
 In the year 1852 the Honorable I. C. Sloan came from the east and 
 settled in Janesville, and in 1854 his equally distinguished brother, A. 
 Scott Sloan, came to the state and settled at Beaver Dam. You all know 
 the great ability and learning of those two lawyers. I do not remember 
 that I ever personally met a stronger lawyer than I. C. Sloan. But I 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 279 
 
 do not intend to dwell upon the great ability of either; but mention 
 them here for the purpose of relating an anecdote of Abraham Lincoln 
 respecting them, which I have never seen in print. In i860 we had 
 only three members of Congress from this state, and A. Scott Sloan 
 was elected the same year that Lincoln was elected President; they 
 were both over six feet and three inches tall, and a very warm friend- 
 ship sprang up between them. After the census of i860, we had six 
 members, and L C. Sloan, who was at least an inch shorter than his 
 brother, was elected in 1862, and represented part of the district his 
 brother had represented. L C. Sloan went to Washington, and was 
 introduced to the President by his brother, and as they both stood 
 before Lincoln he said he saw the President running his eyes up and 
 down them, when he smilingly said, addressing the shorter of the two, 
 "Mr. Sloan, it seems to me the republicans of Wisconsin are lowering 
 somewhat their standard of republicanism." He replied, "No, Mr. 
 President, we think we are keeping our banners as high as ever," when 
 the President replied, "Ah! Mr. Sloan, you know, we read that those 
 who had seen the new temple only rejoiced, while those who had seen 
 both the old and the new wept." "Well, Sloan," said I, "what did you 
 say to that great compliment to you, and the greater one to your 
 brother?" He replied, "I did not know whether the President was 
 quoting from profane or sacred history, and did not know what reply 
 to make, and therefore said nothing." 
 
 We are met here to take part in the semi-centennial celebration of 
 the state, and what miraculous changes have taken place all over the 
 grand commonwealth in the last fifty years. The little village where 
 I located, of one thousand inhabitants, has become a city of between 
 thirteen and fourteen thousand, and the population of the state has in- 
 creased from 225,000 to over 2,000,000. And all over the state the in- 
 crease in population, in institutions of learning, in wealth and power, 
 has been equally great and marvelous. And we, unlike the seven 
 noble youths of Ephesus, called the Seven Sleepers, who fled from perse- 
 cution to a cave in the side of a mountain, in the reign of Publius Decius, 
 the Roman emperor, known as the Christian persecutor, and were 
 
28o HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 walled in and remained there one hundred and eighty-seven years, 
 where their lives, as the legend tells us, were preserved in a miraculous 
 manner by the power of God; and when they came forth were greatly 
 astonished at the great changes that everywhere met their eyes, they 
 supposing they had slept only a few hours, while we, unlike these sleep- 
 ers, during the passing of the last fifty years, have been awake, taking 
 cognizance of the wonderful changes constantly going on. And I 
 think it should be a source of great gratification to the legal profession 
 in this state to know that they have been a most powerful factor ip 
 this great and rapid development. For, without good laws and a 
 wise and just administration of them, there can never be any sub- 
 stantial and permanent improvement, and prosperity in the state. And 
 everyone knows that the constitution and laws of the state are mainly 
 the result of the labor of the members of the bar. And the wise, im- 
 partial and just administration of those laws by the lawyers and judges 
 of the state tend equally to advance its great prosperity. But the old 
 judges and the old lawyers who first took part in forming the consti- 
 tution and laws of this state have passed or are rapidly passing away. 
 
 Abraham Lincoln, at the close of his address delivered before the 
 state agricultural society on the 30th day of September, 1859, said, 
 that a certain eastern monarch once charged his wise men to invent for 
 him a sentence to be ever in view, and which should be true and appro- 
 priate in all times and situations. And they presented him these words : 
 "And this, too, shall pass away!" How much it expresses! How 
 chastening in the hour of pride ! How consoling in the depths of afflic- 
 tion! "And yet," he added, "let us believe it is not quite true. Let us 
 hope, rather by cultivating the physical world beneath and around us, 
 and the intellectual and moral world within us, we shall produce a state, 
 rich, powerful and prosperous, and a people highly moral, intellectual 
 and generous, possessing political prosperity and happiness, and which, 
 while the earth endures, shall riot pass away!" 
 
CHAPTER IX. 
 WISCONSIN LEGAL BIBLIOGRAPHY. 
 
 BY JOHN R. BERRYMAN. 
 
 Since Wisconsin has passed the fiftieth year of her statehood, it may 
 be worth while to note what has been accompHshed by her citizens in 
 the line of legal authorship. During the first thirty years of the state's 
 existence but little was attempted in that direction, perhaps, for the 
 reason that the men of those times were less inclined to undertake 
 the confinement and seclusion which are necessary to the production of 
 works on legal topics than are those of these days. The earlier times 
 were more stirring than the later. Ambitious men, striving for fame 
 and fortune, are not enamored of the hidden toil and meager compensa- 
 tion which are the lot of authors of law books. The road to popular 
 fame or to fortune does not lie in that direction. He who seeks the 
 plaudits of the multitude or the approval of the people must look else- 
 where than in the library of him who is testing, arranging, harmon- 
 izing and trying to formulate principles from the multitudinous de- 
 cisions of the courts of fifty or sixty jurisdictions. But all men do not 
 seek distinction along these lines. There are those to whom the quiet 
 of the library and the patient application needed to prepare a work on 
 a legal topic is agreeable, far more so than thronging, surging crowds 
 and the plaudits they bestow upon the orator who tickles their fancy 
 or stirs their emotions. The number of such in Wisconsin has increased 
 of late years, and will doubtless continue to increase in augmented ratio. 
 It is not the purpose of the writer to review the productions of the law 
 writers of the state; but rather to place before the reader the sub- 
 stance of what has been done by them. 
 
 REVISED STATUTES. 
 
 Of first importance to the legal profession and the public is the 
 
 written law; especially as it appears periodically in the form of revisions 
 
 281 
 
282 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 or compilations. Books of the first class are prepared by commis- 
 sioners or revisers appointed by the legislature or pursuant to its 
 authority. Of these, Wisconsin, as territory and state, has had five. 
 The first revision was provided for by a resolution adopted by the terri- 
 torial legislature in December, 1838, and which appointed Messrs. 
 Morgan L. Martin, Marshall M. Strong and Jar^jes Collins, of the 
 council (the upper house), and Messrs. Edward V. Whiton, B. Shackel- 
 ford and Augustus Story, of the house of representatives, a committee 
 to revise the laws of the territory, and report the result of their labors 
 at an adjourned session. This committee, during the recess of the legis- 
 lature, which continued only about thirty days, prepared, and, at the 
 session which succeeded, reported numerous bills, which, after 
 being amended by the legislature, were enacted and composed the prin- 
 cipal part of the statutes of 1839, a volume, including the index, of 456 
 pages. 
 
 The circumstances under which these statutes were prepared neces- 
 sarily precluded them from being a revision in the sense in which that 
 term is now used. It lacks a table of contents; is not divided into chap- 
 ters, nor is the matter so classified as to meet the demands of the present 
 time. But a fair consideration of the conditions under which the com- 
 mittee did its work leaves no room to doubt the capacity or industry 
 of its members. Indeed, so far as some of them are concerned, it may 
 be questioned whether the intervening years have produced their su- 
 periors; without any disrespect to the memory of the other members of 
 the committee, this is especially true of Edward V. Whiton and Marshall 
 M. Strong. The duty of superintending the printing, making the mar- 
 ginal notes and index was devolved by the legislature upon Mr. Whiton. 
 The time allowed him for that purpose was brief, the act appointing him 
 having been passed March 11, and his task having been completed, ap- 
 parently, June IS- 
 
 The revisers of 1839 were all members of the legislature of 1838. 
 Morgan L. Martin was a member of the council from Brown county; 
 Marshall M. Strong, from Racine county, James Collins, from Iowa 
 county; Edward V. Whiton was a member of the house from Rock and 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 283 
 
 Walworth counties; Barlow Shackelford, from Brown county, and 
 Augustus Story, from Milwaukee and Washington counties. 
 
 The genesis of the revised statutes of 1849 is found in an act ap- 
 proved July 13, 1848, which provided for the selection of three commis- 
 sioners by the senate and assembly whose duty it was to prepare and lay 
 before the next legislature a bill revising the statutes; provision was 
 made for filling any vacancy which might occur in the commission, 
 the governor being authorized to appoint. The compensation of each 
 commissioner was fixed at three dollars for each day while engaged in 
 the work, and the employment of a clerk at two dollars per day was 
 authorized. In July, 1848, the legislature elected M. Frank, Charles S. 
 Jordan and A. W. Randall commissioners; the latter, declining to act, 
 Charles M. Baker was appointed by the governor in his stead. James 
 Simmons served as clerk to the commission. 
 
 The commissioners began their labors in August, 1848. Owing to 
 the fact that the constitution had been recently adopted and that but 
 a comparatively smah body of law had been enacted under it, they 
 found their labors so great that the conclusion was early reached that 
 the time allotted for doing the work was insufficient to permit a revision 
 of the entire body of the laws; they, therefore, began upon and com- 
 pleted such parts as most needed change by reason of the altered condi- 
 tions arising from statehood. In January, 1849, sixty-four chapters 
 were reported to the legislature. These, with the exception of a very 
 few of minor importance, were adopted by the legislature, generally 
 without any, or with but slight, amendment. The commissioners con- 
 tinued their work during the session of the legislature, reporting chap- 
 ters from time to time as they were completed. In order to secure the 
 printing of such laws as could not be revised, for lack of time, in the 
 same volume as the parts thereof which were revised, the legislature ap- 
 pointed a joint committee consisting of M. M. Cothren, George W. 
 Lakin and William M. Dennis, on the part of the senate, and James B. 
 Cross, MarshaU M. Strong, Morgan L. Noble, Paul CrandaU and Tim- 
 othy Burns, on the part of the assembly, to compile and report such laws 
 as the commissioners should be unable to revise and report during the 
 
284 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 session. The result of the labors of the commissioners and the com- 
 mittee was the Revised Statutes of 1849. 
 
 Mr. Baker was appointed to superintend the printing of the statutes, 
 ■make marginal notes and an index. He was given authority to arrange 
 the chapters into parts and titles as he thought proper, to rearrange the 
 order of the sections or transpose them from one chapter to another, 
 whenever it would not alter the meaning of the law, and the proper order 
 of arrangement required it. This authority he freely used, as the preface 
 indicates, though, probably, he never exceeded it. It seems, in the light 
 of recent adjudications, that it came dangerously near being a delega- 
 tion of legislative power. But there is no record that such an objection 
 was ever made. 
 
 These statutes, in arrangement and general form, were far in ad- 
 vance of those of 1839, being divided into parts, titles and chapters, and 
 the last being subdivided into subtitles and sections. 
 
 Of the revisers of 1849 Judge Baker is the best known; a sketch 
 of his life appears elsewhere in this work. Mr. Jordan was a member 
 of the Rock county bar; a lawyer of ability and a man of great wit. 
 Like many of the profession in his day he was somewhat given to con- 
 viviality. He left the state a good many years ago, and about the time 
 of the Chicago fire was practicing there. It is understood that he has 
 been dead some years. Michael Frank, the other member of the com- 
 mission, was not a lawyer, though he had studied law somewhat in his 
 youth. He is best known as the father of the present school system of 
 this state. He was born in Virgil, Cortland county, New York, Decem- 
 ber 12, 1804; his father was a German, and served in the revolutionary 
 army. The son lived his first twenty years on a farm; was much given 
 to study and political discussion; he organized the young people of his 
 section into societies for mutual improvement; he aided in the organiza- 
 tion of the first Sunday school in central New York; was active in the 
 advocacy of temperance, and adhered to his convictions to the extent of 
 resigning the captaincy of an artillery company rather than abandon 
 them; the anti-slavery cause also found in him a wann champion. 
 From the time he attained his majority until he left his native state he 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 285 
 
 was inspector of common schools, and for a time served as county su- 
 pervisor. In 1839 he came to Wisconsin, settling at Southport (now 
 Kenosha), where the remainder of his days were passed. Two months 
 after his arrival he succeeded in organizing a lyceum; he was one of the 
 speakers at the first territorial temperance convention, held at East 
 Troy, Walworth county, in February, 1840, and chairman of the com- 
 mittee appointed to prepare an address to the people; in June, 1840, 
 he became joint editor with C. Latham Sholes of the Southport Tele- 
 graph and maintained his connection with that paper many years. He 
 was the first president of the village of Southport (1840) and the first 
 mayor of Kenosha (1850). In 1840 he was commissioned by Governor 
 Dodge colonel of militia; he served in the upper house of the territorial 
 legislature in 1843, 1844, 1845 ^^^^ 1846, and in the assembly in 1861. 
 It is said that he was the first agitator in favor of the admission of the 
 territory as a state. In 1840 he began the agitation in his paper of the 
 subject of free schools, and in 1843 introduced a bill on that subject, 
 which failed of passage; in 1845 he succeeded in obtaining the enact- 
 ment of a law permitting the establishment of a free school in the village 
 of Southport, subject to approval of the electors. At the first meeting 
 held to vote on the proposition the excitement was so intense that a 
 vote could not be taken. The ground of opposition was that it would 
 be unjust to tax the property of those who had no children to pay for the 
 education of the children of other persons. At a second meeting the 
 law was approved, and the first free school in Wisconsin was estab- 
 lished at Southport. 
 
 Colonel Frank's especial duty as a member of the commission to 
 revise the Statutes of 1849 was the preparation of a school code. The 
 chapter prepared by him was antagonized by Marshall M. Strong on the 
 ground that the commissioners had exceeded their power, which was to 
 revise existing laws and not to draft and recommend the enactment of 
 new ones. The answer was that the constitution had made existing 
 school laws inapplicable, and that there was nothing to revise. 
 
 The other principal facts in the career of Colonel Frank must be 
 passed over rapidly. In 1850 he was editor of the Wisconsin Journal of 
 
286 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Education; in 1861 was appointed postmaster at Kenosha and held the 
 office five and a half years; was a regent of the state university six 
 years; county treasurer four years, and held other local offices; attended 
 the state convention at which the republican party was organized, and 
 remained a member of it; in 1869 bought the Beloit Free Press, but did 
 not remain owner of it long; occupied a position in the treasury de- 
 partment at Washington for twelve and a half years; returned to 
 Kenosha in 1882 and assumed the editorship of the Telegraph, in which 
 position he remained until early in 1889. His death occurred Decem- 
 ber 26, 1894. 
 
 The adoption of the code of procedure in 1856 made a revision of 
 the statutes necessary; accordingly, at the adjourned session of the 
 legislature which met September 3, 1856, and adjourned October 14, 
 1856, a law was enacted authorizing the governor to appoint three re- 
 visers, whose duty was declared to be to collect, compile and digest the 
 general laws; they were to report to the legislature as soon as may 
 be, and to receive such compensation as the legislature may deem just 
 and reasonable, not less than five dollars per day for not exceeding two 
 hundred days' service. The act directed that the appointments should 
 be made without delay. The revisers were David Taylor, Samuel J. 
 Todd and F. S. Lovell. The date of their appointment is not shown in 
 the preface to the revised statutes of 1858, but it is stated there that they 
 entered upon the performance of their duties in the spring of 1858, and 
 that the time limited for completion of the work was very short (about 
 twenty-eight weeks); the time for which the legislature had provided 
 for compensation. 
 
 The revisers submitted their report early in the legislative session of 
 1858. "It was not"' their "object or intention to change the system 
 under which the state had grown up, but to endeavor to simplify and 
 harmonize it; and to this end they recommended several important 
 amendments. . . . Owing to the absorbing interest taken in mat- 
 ters then pending in the legislature, the report of the revisers was 
 left unacted upon until a late day in the session. Several of the amend- 
 ments recommended by the revisers were lost in the legislature, and 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 287 
 
 many amendments were made, some of which were not sufficiently con- 
 sidered in their bearing upon the whole revision." The result of the 
 labors of the revisers was the revised statutes of 1858. The printing of 
 the volume was superintended by Mr. Lovell. 
 
 Except so far as amendments of the revisers' bill were made by the 
 legislature, the revision of 1858 was based upon the laws in force before 
 the legislature of that year met. Hence the laws of 1858, which were 
 not revised but were compiled and arranged in the revision by Mr. 
 Lovell, were not always in harmony with the revision. The result was 
 uncertainty as to the controlling provisions. Whether any attempt was 
 made to secure an adjournment- of the legislature or the calling of an 
 extra session in order to give time for the incorporation of the laws with 
 and as part of the revision, is not known. The revisers' work stood the 
 test of twenty years and was as free from defects as any other revision, 
 except as indicated, and for such no responsibility attached to them. 
 The volume was well printed; the classification of its contents into parts, 
 titles, chapters, subdivisions of chapters and sections made them access- 
 ible. No references were made in it or in either of the previous revisions 
 to the sources from whence the several sections were drawn, nor to 
 decisions upon them. 
 
 Sketches of Judge Taylor and Mr. Lovell appear elsewhere. Mr. 
 Todd was a member of the Rock county bar, and is living, at the time 
 of writing this, in Beloit, though he has been an invalid for several 
 years. He served as state senator in 1867 and 1868. His professional 
 standing was always good. He was not partial to contested business, 
 and avoided rather than sought it. 
 
 The inevitable result of the action of seventeen legislatures upon the 
 revision of 1858 was to tear it into many fragments and to pile up a 
 vast body of statutes which contained many inharmonious and irrecon- 
 cilable provisions. The demand for a revision was indeed urgent when 
 the legislature of 1875 authorized the justices of the supreme court to 
 appoint three competent persons to collect and revise the general laws; 
 they were also authorized to fix the compensation of the persons ap- 
 pointed and to make such allowances for clerk-hire as they deemed just 
 
288 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 and reasonable. It was also provided that the revisers should enter 
 upon their work as soon as practicable, and when the whole work was 
 completed report it to the next succeeding legislature. 
 
 This was the first adequate provision made for a revision. The 
 earlier revisers were limited, directly or indirectly, a-s to the time in 
 which their task should be performed. The authority conferred upon 
 the justices of the supreme court was so exercised as to produce the best 
 results to the state; they fixed the compensation of the revisers at fif- 
 teen dollars per day each, arid appointed David Taylor, WilHam F. Vilas 
 and J. P. C. Cottrill'to prepare the revision. These gentlemen entered 
 upon their labors in April, 1875, and prosecuted them until some time 
 after the opening of the session of the legislature in 1878. In the mean- 
 time, the legislature became impatient for the result of the revisers' 
 work, and inquiries were put by it, from time to time, as to the progress 
 made. In 1877 the legislature, in order to secure the completion of the 
 work within the next year, authorized the appointment of two addi- 
 tional persons to whom might be assigned portions of the work as pro- 
 jected by the revisers; pursuant to such authority Harlow S. Orton and 
 J. H. Carpenter were appointed; the former prepared part four of the 
 revision, relating to criminal law, the latter title .twenty-nine, entitled 
 "proceedings in county courts." The revisers were assisted from the 
 beginning by A. C. Parkinson and during the last few months of their 
 labors by R. C. Spooner. In their report, submitted with their bill, 
 the method pursued by them and the objects aimed at are stated at 
 length; the necessity of the time devoted to the work is vigorously de- 
 fended, presumably because of legislative and public impatience on ac- 
 count of the delay in completing it. 
 
 In addition to reporting a bill the revisers submitted also a volume 
 containing their formal report and notes made by them showing the 
 sources from whence the se\'eral sections were drawn, and the changes 
 of substance made therein, and, in some cases, briefly stating the 
 reasons for recommending such alterations. This report proved to be 
 very valuable and was in such general demand that it soon became im- 
 possible to obtain copies of it. The notes contained in it were reprinted 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 289 
 
 in Sanborn and Berryman's supplement to the revised statutes of 1878, 
 and thereby made accessible to the profession. Another point of dififer- 
 ence between the bill which became the revised of statutes of 1878 and 
 previous revisions was that the former was sectionized consecutively; 
 and yet another, that it contained references to the decisions of the 
 supreme court affecting the sections or illustrating in some way pro- 
 visions contained in them. 
 
 The inconvenience caused by the enactment of the revised statutes 
 of 1858 without harmonizing the laws of 1858 therewith induced a dif- 
 ferent procedure in 1878; the revisers' bill was referred to a joint legisla- 
 tive committee consisting of L. W. Barden, T. R. Hudd and W. T. Price, 
 on the part of the senate, and E. E. Bryant, Wm. E. Carter, E. C. Mc- 
 Fettridge and H. J. Ball, on the part of the assembly; the committee 
 was instructed to incorporate the general laws of 1878 as well as to ex- 
 amine the revisers' bill. In order that this might be done the legis- 
 lature, having finished its other business, adjourned on March 21, with 
 the understanding that when the committee on revision was prepared 
 to report the governor would call it together in extra session. This was 
 done and such session convened June 4. The committee reported one 
 hundred and fifty-five amendments to the revisers' bill, nearly all of 
 which were adopted; a few amendments offered by members on the 
 floor were also adopted; these were not material. The extra session 
 adjourned June 7. 
 
 As has been suggested, the conditions under which the revised 
 statutes of 1878 was prepared were favorable for improved results as 
 compared with the circumstances attending previous revisions. Such 
 results were obtained, and to an extent sufficient to justify the language 
 used by the joint legislative committee in their report: "Your com- 
 mittee cannot too highly commend the orderly arrangement and care- 
 ful natural analysis of the revision. It is written in a terse, clear, per- 
 spicuous style, with remarkable condensation. The general plan of the 
 work laid out by the revisers, the ability and painstaking fidelity with 
 which it has been executed, command our approbation." Messrs. Vilas 
 and Carpenter superintended the printing of the statutes, and were as- 
 
290 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 sisted in that work by E. E. Bryant and R. M. Bashford. The total 
 cost of the revised statutes of 1878 to the state, including the cost of the 
 extra session of the legislature and the compensation voted the joint 
 committee, was about $71,700. 
 
 In 1895 the initiatory step for another revision of the statutes was 
 taken by the enactment of a law authorizing Arthur L. Sanborn and 
 John R. Berryman to prepare and publish the public general laws in 
 force at the close of the session of the legislature of 1897, and by ap- 
 pointing them a committee, without compensation, to prepare and re- 
 port to the legislature of 1897 bills for the correction of such errors and 
 to harmonize such discrepancies in the statutes as they deemed advis- 
 able, together with such additional sections as they shall deem proper to 
 carry out the general design and spirit of the statutes. Pursuant to such 
 authority, they prepared a bill of nearly twelve hundred pages and 
 submitted it to the legislature early in January, 1897; accompanying the 
 bill were notes showing the sources whence the several sections were 
 drawn, and explaining the substantial changes recommended. In their 
 report they said, in explanation of the method adopted to attain the 
 objects aimed at, that "it has been taken for granted that the very ex- 
 cellent revision of 1878 was acknowledged to be the basis upon which 
 our work was to be performed; that no material change in the method of 
 arrangement or the general plan of that work was contemplated, except 
 in so far as it ha§ been indicated by legislation since 1878. This ac- 
 knowledgment of the merits of that revision is fully warranted by its 
 excellencies. Constant use of it and comparison between it and the 
 revisions of other states have so impressed us with the comprehensive- 
 ness of its merits as to feel very loath to make any attempt to disturb its 
 parts or mar its symmetry. Hence our task has been wisely limited to 
 the adaptation of the laws enacted since 1878 to such form as will per- 
 mit them to become a part of the new statutes, which will be, in effect, 
 the revision of 1878 brought down to 1898." 
 
 Substantially the same course was adopted by the legislature in 
 respect to this bill as was pursued in 1878. The bill was referred to 
 a joint committee of the legislature composed, on the part of the senate. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 291 
 
 of Daniel E. Riordan, Julius E. Roehr and John M. Whitehead; on the 
 part of the assembly, of William H. Flett, David F. Jones, William G. 
 Wheeler and Leslie C. Harvey. On the 24th of April the legislature ad- 
 journed until the 17th of August, at which time the joint committee re- 
 ported that it had examined the bill, incorporated therein the per- 
 manent general laws of 1897, and recommended various amendments 
 to the bill. Objections were made to some of the amendments reported 
 by the committee, and on the i8th of August the bill was recommitted 
 to it; the next day and the day following, the bills having been con- 
 sidered by the committee on revision and the judiciary committee of 
 each house, and a few amendments recommended, the legislature 
 adopted these and, without making further amendments, passed the bill. 
 The distinguishing characteristic of the statutes of 1898 is their an- 
 notations. These have been the growth of years, and have been ex- 
 panded and revised from the time of their original preparation in 
 1883 for pubhcation in the supplement to the revised statutes of 1878. 
 At the time of this writing the statutes of 1898 have not taken effect, 
 hence there has been no opportunity to test the extent of their demerits. 
 The report of the committee on the revision said of the work of the re- 
 visers: "We have found that the bill submitted by the revisers has been 
 prepared with the greatest care and accuracy, and is worthy of the high- 
 est commendation. Where they have rewritten the law it has always 
 been done in a very terse and clear style, with the most painjtaking 
 care, and with the result of considerably reducing the amount of matter. 
 Their arrangement of the bill has been made in the most logical order, 
 and the amendments proposed by them have, in the main, been found 
 to be well calculated tO' carry out the purpose and to harmonize the pro- 
 visions of the statutes." 
 
 GENERAL COMPILATIONS OF STATUTES. 
 
 The first compilation of the laws of Wisconsin was published in June, 
 1852, and was entitled "Supplement to the revised statutes of the state 
 of Wisconsin, containing all the general laws and amendments enacted 
 since the revision of the statutes (of 1849) ^^P to the present date, being. 
 
292 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 with the revised statutes, a complete transcript of all general laws now in 
 force in this state." This volume of 164 pages was published at 
 Kenosha by C. Latham Sholes. Nothing appears to show who pre- 
 pared it for publication. Its publication does not appear to have' 
 been authorized by the"legislature. The occasion for, and the nature of, 
 the work are thus stated in the "advertisement:" ".One or two consid- 
 erations have induced the compilation and publication of this volume. 
 A very general complaint is made, in the first place, that it is very 
 difficult to obtain a copy of the annual enactments of the legislature; 
 and, in the next place, such is the mass of local laws among which the 
 general laws are scattered, and the imperfect character of the indexes 
 and references, that it is a work of great labor, after copies are obtained, 
 to discover and ascertain the exact character of our laws. All laws of 
 the state, in any respect general in their character, and all amendments 
 of the volume of the revised statutes have been carefully compiled and 
 correctly published. Those of 1850 and '51 are published in the order 
 in which they appear in the volume of session laws, and the year and- 
 page of each will be found correctly noted alongside the title. This 
 order could not be followed with reference to those of '52 for the reason 
 that the authorized annual volume of laws had not yet been published, 
 and copies could not conveniently be procured from the state depart- 
 ment in any prescribed order. This, ho\vever, is unimportant, as care 
 has been taken in making the index to enable the searcher to find with- 
 out difficulty any desired matter contained in the volume. To overcome 
 also the difficulty of ascertaining readily what statutes (sections) of the 
 revised volume have, been changed, a list, in regular order, of every 
 chapter and section altered since the revision will be found in the index, 
 by reference to which will be seen, at a glance, all alterations." 
 
 The next in order of time, though of a different nature, was "an 
 appendix to the revised statutes and general laws, from 1859 to 1867, 
 inclusive." This was prepared by D. A. Reed, an attorney then resident 
 at Sturgeon Bay, and purports to have been authorized, the title page 
 containing the words "in accordance with a resolution of the general 
 assembly." This pamphlet of twenty-eight pages contains references to 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN, 293 
 
 the acts amending the respective chapters and sections of the revised 
 statutes of 1858; a hst of general laws not amendatory of those statutes, 
 and a Hst of laws amendatory of the laws of 1859- 1867, both inclusive. 
 
 In 1 87 1 there was published "the revised statutes of the state of Wis- 
 consin, as altered and amended by subsequent legislation, together with 
 the unrepealed statutes of a general nature passed from the time of the 
 revision of 1858 to the close of the session of the legislature of 1871; 
 arranged in the same manner as the statutes of 1858, with references 
 showing the time of the enactment of each section, and also references 
 to judicial decisions in relation to and explanatory of the statutes." 
 These statutes were prepared by David Taylor, and were very generally 
 used by the bench and bar previous to the publication of the revised 
 statutes of 1878. Though not wholly free from errors, they were a 
 great boon to the legal profession, and stand as a monument to the 
 industry and learning of their compiler. They have a large practical 
 value at this time because of the history of legislation in them. It is 
 said in the preface that "in order to enable the reader to determine when 
 the provisions of the revised statutes of 1858 were first enacted as the law 
 of the state I have, either in a chapter note or by a reference under the 
 section, referred to the law in place of which the law as found in the 
 revisions of 1858 is the substitute, and in all cases where the laws are of 
 such a nature that it may become important, in the determination of 
 rights of property, to know the history of the legislation of the territory 
 and state upon the subject, I have referred in a note to all the laws passed 
 on that subject since the organization of the territory of Wisconsin." 
 
 This was the first statute of Wisconsin to give references to judicial 
 decisions bearing upon the sections. Judge Taylor made notes of all 
 Wisconsin cases then published affecting the statutes and notes of many 
 cases in other states. One defect in the work is the absence of catch 
 lines or side-notes to the several sections. These were omitted on the 
 theory that the contents of each chapter, set out at the beginning of it, 
 made them unnecessary; but this was a mistake. 
 
 Besides containing the statutes in force this compilation contained 
 the rules of the supreme court, the circuit courts and rules in equity. 
 19 
 
294 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Instead of setting out the unrepealed acts passed in relation to the civil 
 war, a list of them is given on pages 2006, 2007. This was the first 
 time it became necessary to employ two volumes for the publication of 
 the statutes of the state. Including the index, the work covered 2,217 
 pages. Though these statutes were not formally authorized, they were 
 everywhere recognized, and were bought by the legislature for its use. 
 
 In 1.883 A. L. Sanborn and J. R. Berryman produced their "Supple- 
 ment to the revised statutes of the state of Wisconsin, 1878, containing 
 the general laws from 1879 to 1883, with the revisers' notes to the 
 statutes of 1878, and notes to cases construing and applying these and 
 similar statutes by the supreme court of Wisconsin and the courts of 
 other states." The chief value of this work lay in the notes of de- 
 cisions contained in it and in the notes of the revisers of 1878, which 
 had become exceedingly scarce. The annotations, owing to the rapid 
 increase in the quantity of case-law since the publication of Taylor's 
 Statutes, were much more extensive than in that work, and the state- 
 ment of the points was much fuller, with, perhaps, a better classification 
 of the notes. Though, at first, the members of the bar were a little 
 cautious about taking hold of the work, its usefulness soon became ap- 
 parent, and it had a satisfactory sale. The legislature several times 
 recognized its value. It contained 1,015 P^ges. 
 
 The legislature of 1889 authorized A. L. Sanborn and John R. 
 Berryman to prepare and publish or cause to be published the public 
 general laws in force at the close of its session, together with notes of 
 cases decided by the supreme court of this state which construe or apply 
 such statutes, notes of such other cases and such other matter as they 
 may deem proper. It was also provided that such statutes should be 
 evidence; and also, that no liability was assumed by the state on account 
 of the law. The work so authorized was published in the autumn of 
 1889 in two volumes of 2,885 pages. It was entitled "Annotated 
 statutes of Wisconsin, containing the general laws in force October i, 
 1889, also the revisers' notes to the revised statutes of 1858 and 1878, 
 notes of cases construing and applying the constitution and statutes, 
 and the rules of the county and circuit courts and of the supreme court." 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 295 
 
 In these statutes the scheme of the supplement of 1883 is carried out 
 to an enlarged extent; the annotations were greatly increased; the 
 notes made by the revisers of 1858 were added to those made by the 
 revisers of 1878, thus carrying the history of legislation back to 1849, 
 and bringing it down to 1889. This work was well received and came 
 into immediate and general use. The legislature provided for furnish- 
 ing it to all courts of record, state, county, town, village and city 
 ofificers. The confidence of the compilers that no unrepealed statute 
 which ought to be in the work was omitted therefrom, was hardly justi- 
 fied, there being at least two such omissions, both relating to terms of 
 circuit courts. 
 
 In the last three or four years the question has more than once been 
 raised whether the necessity for such frequent revisions of the laws can 
 be obviated. The answer depends upon the question whether the char- 
 acter of legislation can be materially improved. The revisers of the 
 Wisconsin statutes of 1898 gave this question some consideration in 
 their report to the legislature of 1897. Because what was there said was 
 put forth in a document which is not generally accessible and which will 
 soon be beyond the usual reach of nearly all quotation is made of it here. 
 ' They said that the labor of preparing their bill had "been greatly in- 
 creased because of the inartificial form in which many of the laws have 
 been expressed, because many of them are enacted without regard to 
 their relation to or effect upon the body of the law to which they relate or 
 the legal system or policy of the state. The result is conflicting legisla- 
 tion, overlapping provisions and uncertainty as to the state of the law. 
 This produces so many and important consequences that it is well worth 
 while to consider whether a remedy can be found. Among the conse- 
 quences directly attributable are largely increased litigation and the 
 resulting public and private expense ; the necessity for frequent revision 
 or compilation of the statutes, and a lack of stability in the law. These 
 results are unavoidable where legislative sessions are short, the amount 
 of business large and the number of experienced legislators limited. We 
 may perhaps be allowed to suggest that the remedy lies in providing for 
 a small body of men to whom shall be entrusted the duty of passing 
 
296 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 upon the form and validity of measures which have reached that stage of 
 legislative action which is equivalent to an approval of them, and whose 
 duty it shall be to put such measures in proper form, as well as to sug- 
 gest the amendment of other provisions affected by them, regard being 
 had to what is already enacted on the subject, to what the common law 
 is, to the construction given previous legislatioa germane thereto, the 
 mischief sought to be remedied and the efficiency of the remedy pro- 
 posed. With the conclusion of such a body before it and the reasons 
 therefor the legislature would be inestimably aided in the performance 
 of its duties, needless and harmful changes in the statutes would be les- 
 sened, uncertainty as to the effect of laws would be diminished, the state 
 and its citizens saved large expenditure of money, and other results at- 
 tendant upon uncertainties and lack of stability in the law will be 
 avoided. It is safe to say that the state will not long maintain a har- 
 monious, systematic and well expressed body of statute law until some 
 such course as is suggested is adopted. 
 
 The necessity of such a committee or body is much increased by 
 the adoption of the amendment to the constitution prohibiting special 
 legislation. All such special matters must now be covered by general 
 laws. The result is that measures essentially local are pressed under the' 
 form of general laws, without regard to the effect they may have upon 
 the state at large or upon the body of the general law. The judiciary 
 committees are so overwhelmed with the great number of bills sub- 
 mitted to them, and their duties as legislators, that they have no time 
 whatever to devote to the question of the general effect and harmony 
 of proposed measures. It is beyond the scope of our duty to do more 
 than suggest the matter, leaving the remedy to those upon whom is 
 devolved the duty of enacting laws. 
 
 COMPILATIONS OF STATUTES ON SPECIAL SUBJECTS. 
 
 In this paragraph notice will not be taken of such compilations as 
 are made periodically pursuant to authority vested in certain officers, as 
 the various compilations of laws relating to the assessment of taxes, the 
 conduct of elections, fish and game, public schools, etc. 
 
HISTORY OF THE BENCH AND BAR OE WISCONSIN. 297 
 
 In 1859 Walter S. Carter, of Milwaukee, prepared "the code of pro- 
 cedure of the state of Wisconsin, as passed by the legislature in 1856, 
 and amended in 1857-58-59, with an appendix containing the rules of 
 the supreme and circuit courts, the time of holding the terms of court in 
 the various circuits, and of the United St?tes district court." The 
 occasion for this work lay in the fact that, by the revised statutes of 
 1858, the code of procedure was very materially amended, and the ar- 
 rangement of it greatly altered. One valuable feature of the work 
 was the references it contained to the corresponding provisions as found 
 in the annotated codes of New York. The book was printed in Milwau- 
 kee, and contained 228 pages. 
 
 In 1858 the legislature directed the purchase from Elijah M. Haines 
 of a sufficient number of copies of a work entitled "Laws of Wisconsin 
 concerning the organization and government of towns, and the powers 
 and duties of town officers and boards of supervisors, with numerous 
 practical forms, by Elijah M. Haines, counselor at law," to supply each 
 organized town in this state with six copies thereof, at a cost not to 
 exceed fifty cents a copy, and also one thousand copies for distribution 
 among new towns. The law referred to also provided that the governor 
 should cause said laws to be translated into the German, Norwegian and 
 Holland languages, and two thousand copies of the same to be printed 
 in the German language, one thousand in the Norwegian and six hun- 
 dred in the Holland. The writer does not know whether the translations 
 were made or not, but inasmuch as only fifty dollars were appropriated 
 for making them, it may be doubted. Mr. Haines was an Illinois lawyer 
 and long afterward was speaker of the house of representatives of that 
 state; he was also the author of some Illinois law books which had a 
 large sale. His work appears to have been well done. 
 
 In 1869 the legislature provided for the purchase of a sufficient num- 
 ber of copies of a work entitled "Laws of Wisconsin concerning the or- 
 ganization and government of towns, and the powers and duties of town 
 officers and boards of supervisors, with numerous practical forms, by 
 J. C. Spooner and E. E. Bryant," to supply each town with seven copies, 
 at a cost not to exceed sixty cents per copy, and also one thousand 
 
298 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 copies for subsequent distribution. This work was published the same 
 year. The names of the authors is a sufficient guarantee that it was ad- 
 mirably prepared. 
 
 The next work of this character was prepared and published in 1879, 
 and had for its authors John C. Spooner and Hiram Hayes. The state 
 paid $2,200 for the manuscript and all the rights of the authors therein, 
 and published the work. 
 
 In 1885 another compilation of "town laws" was made by George B. 
 Carter, of the Grant county bar; and in 1897 Charles E. Estabrook, of 
 the Milwaukee bar, was appointed toi make a similar compilation, based 
 on the statutes of 1898. At the time of writing this Mr. Estabrook's 
 compilation has not been published. 
 
 In 1882 the legislature provided for a compilation of the original 
 grant made by the United States government to the state of Wisconsin 
 of swamp and overflowed lands, and of all the laws of the United States 
 and of this state directly pertaining to this subject, together with all de- 
 cisions of the department of the interior and messages of the governors 
 of this state in relation thereto, and also such correspondence between 
 this state and the government of the United States respecting the accept- 
 ance and selection of such lands as he (the secretary of state) shall deem 
 necessary for a full explanation of the subject. That compilation was 
 made and published in 1882. There is nothing in it to show "Who pre- 
 pared it; the labor of doing it was considerable. 
 
 INDEXES TO LAVi^S. 
 
 In 1868 there was published a volume of 562 pages entitled "a digest 
 of the laws of Wisconsin from the year 1858 to the year 1868, both years 
 inclusive; to which is added an appendix, giving a list of all the laws 
 and provisions of the constitution passed upon by the supreme court." 
 This was prepared by E. A. Spencer, then of the Dane county bar, now 
 deceased. 
 
 A few years later a more extended work of the same kind, entitled 
 "a synoptical index to the general and private and local laws of Wis- 
 consin from the organization of the territory to 1873 inclusive," was 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 299 
 
 published. This work was copyrighted by Roger C. Spooner, and was 
 probably prepared by him. It contains 381 pages. 
 
 REPORTS OF THE SUPREME COURT. 
 
 T. P. Burnett was the first reporter of the supreme court. Some of 
 the earliest cases reported by him were published as an appendix to the 
 laws of the territory. In 1844 there was published a volume containing 
 cases decided in 1842 and 1843, but not containing some of earlier date, 
 published as stated. This volume consists of 237 pages, and, singularly 
 enough, is without any other index than a table of cases. Mr. Burnett 
 died November 5, 1846; and no reporter seems to have been appointed 
 until after the organization of the state. He had prepared abstracts of 
 the cases and briefs of all causes argued and decided up to the close of 
 the July term, 1846, for the purpose of writing them over and putting 
 them in proper form for publication at some future time. Some use was 
 made of these by Mr. Pinney in preparing his reports. 
 
 Daniel A. Chandler, of Milwaukee, was appointed reporter of the 
 supreme court at its first organization under the constitution. . In June, 
 1850, the printing of the first volume of the reports was completed; it 
 embraced the decisions of the first year under the state government. 
 On account of errors and imperfections in the work, it seems that it was 
 never published. Instead of publishing it a proposal was submitted to 
 the judges to reprint that volume, which they agreed to, and volumes 
 one and two were published in the latter part of 1850. Mr. Chandler 
 reported four volumes, covering the cases in which opinions were writ- 
 ten from the January term, 1849, to and including the June term, 1852. 
 Some of the later cases are without a statement of the facts or syllabus. 
 At the close of the June term, 185 1, Mr. Chandler resigned his ofifice. 
 
 In 1870 the legislature provided that "the supreme court reporter or 
 such other person learned in the law as the judges of the supreme court 
 may designate is hereby authorized and directed to cause to be pub- 
 lished the decisions and opinions of the supreme court of the late ter- 
 ritory of Wisconsin." S. U. Pinney, of Madison, was appointed by the 
 court to perform that duty. He collected and edited the cases pre- 
 
300 HISTORY OF THE 'BENCH AND BAR OF WISCONSIN. 
 
 viously reported Ijy Mr. Burnett and prepared for publication all the 
 unreported cases decided l)y the supreme court of the territory, in which 
 opinions were written. The first volume of his reports and the first 
 seventy-four pages of his second volume cover the period from the July 
 tierm, 1839, to the July term, 1847. Mr. Pinney also re-reported the 
 cases in Chandler's reports and added a few not reported therein, thus 
 covering the period from the July term, 1839, to the December term, 
 1852, when the supreme court was separately organized. Mr. Pinney's 
 work was excellently done. In addition to discharging the duty im- 
 posed on him he added notes of value to some of the cases. His first 
 volume is prefaced with a brief sketch of the leading events in the 
 political and judicial histor\- of the territory, and the rules of practice of 
 the territorial supreme court. The third volume prepared by him con- 
 tains, in an appendix, the rules of practice of the district courts of the 
 territory, and all rules of practice adopted for the county, circuit and 
 supreme courts since the organization of the state; with sketches of the 
 judges of the first supreme court of the state. 
 
 Thq first reporter of the decisions of the separate supreme court was 
 Judge Abram D. Smith, who reported volumes i-ii, inclusive. He 
 was succeeded by Philip L. Spooner who prepared volumes 12-15, in- 
 clusive. On Mr. Spooner's resignation, O. 'M. Conover became re- 
 porter, and so remained until volume 58 was prepared. Of the volumes 
 published while Mr. Conover was reporter, volume 16 was prepared by 
 S. U. Pumey: volume 29 In- James Simmons; volume 30 by James L. 
 High; volume" 37 by E. E. Bryant, and volumes 55-58, inclusive, by 
 Frederick K. Conover. On the death of O. M. Conover, his son Fred- 
 erick K., became reporter and so continues. He has reported volumes 
 59-95, inclusive, except that volumes 69, 79, 94 (in part), and 95 have 
 been prepared for him by James Simmons. 
 
 In 1872 the legislature provided for a new edition of such of the 
 supreme court reports as were out of print or so nearly so as to make the 
 republication thereof, in the opinion of the court, desirable, such edition 
 to be edited by such person as the court should select or approve. It 
 was also provided that the volumes should be stereotyped, and that 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 301 
 
 the State should become the purchaser of four hundred and twenty 
 copies of each vohime. This act was the result of the Chicago fire, 
 which had destroyed nearly all the Wisconsin reports on the market. 
 Pursuant to the foregoing, volumes i, 2, 4, 6-20, inclusive, were edited 
 by William F Vilas and Edwin E. Bryant, and volumes 3, 5, by Luther 
 S. Dixon. Volumes 8, 9 were so much reduced in size as to permit 
 their republication in a single volume. The notes added to the new edi- 
 tion by the editors greatly increased its value over the original edition. 
 Volumes 21 and 22 were also reprinted, but without notes, 
 
 DIGESTS OF DECISIONS AND TABLES OF CASES. 
 
 The first Wisconsin digest was prepared by Wm. E. Sheffield, and 
 published in 1865. It covered the cases from the first down to and in- 
 cluding those in volume 14 of the reports. 
 
 In 1868 James Simmons' first digest appeared. It covered the 
 cases in volume 20 of the reports and all earlier ones. In 1874 this 
 was continued by a supplement covering volume i, Finney's reports, 
 and volumes 21-31, Wisconsin. Besides digest matter proper, it con- 
 tains the rules of the supreme court, rules of the circuit courts, "old 
 rules," rules in equity, and a table of cases criticised. A second supple- 
 ment followed in 1879, covering the cases in volumes 2 and 3, Finney, 
 and volumes 32-43, inclusive, Wisconsin. It also contained a table of 
 cases criticised. 
 
 "Simmons' new digest of Wisconsin reports from the earliest period 
 to the year 1885, containing a full and complete digest of volumes 44 to 
 61, inclusive, of the official reports of decisions of the Wisconsin su- 
 preme court, together with a complete condensed digest of all earlier 
 volumes, with reference to the statutes and a brief index to volumes 
 62-65," ^^^ published in 1886. This also contains a table of cases criti- 
 cised. A second volume, in continuation, was published in 1892, cover- 
 ing volumes 62-76 of the reports, and -bringing the table of cases criti- 
 cised down correspondingly. 
 
 Mr. Simmons has earned the gratitude of his professional brethren 
 by the service rendered in the preparation of his digests. His labors 
 
302 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 have been appreciated, and but for the Hmited market for such books 
 would have been fairly compensated, as compensation to writers of law 
 books goes. The "new digest," mentioned above, was not as satis- 
 factory as the original volumes because it was, so far as the cases cov- 
 ered by such volumes are concerned, a digest of the preceding digests. 
 But notwithstanding this fact, Mr. Simmons' work has been unusually 
 free from serious errors; his statements of propositions of law have 
 been, clear, and his classification has been in conformity with that of the 
 best digests and the average sentiment of the profession. 
 
 In 1883 Charles E. Shepard and Thomas R. Shepard, of the Mil- 
 waukee bar, completed the preparation of a digest of the Wisconsin re- 
 ports from the earliest reported cases to volume 57 of the reports. 
 This was published in two volumes; volume i being the digest proper, 
 and volume 2 containing a table of Wisconsin cases, showing their 
 subsequent citation by the court; a table of reversed titles of such 
 cases, a table of other than Wisconsin cases cited by the supreme court, 
 and a table of statutes construed. 
 
 The authors of this digest performed a vast amount of work in its 
 preparation. Their statements of propositions are concise and nearly 
 always clear. They were not, however, content to follow the most 
 approved methods of classification, but introduced several novel fea- 
 tures. Principally because of the suggested deviation from the classifi- 
 cation with which the profession was familiar their digest did not meet 
 with the favor which it otherwise would have received. The Messrs. 
 Shepard were close students and at their former residence in Fond du 
 Lac, as well as while they were in Milwaukee, had a considerable prac- 
 tice. They left Wisconsin some years ago for the Pacific coast. 
 
 In 1883 the first Wisconsin index-digest made its appearance. 
 Though its author was not a Wisconsin man mention of the work is 
 necessary to be made for the sake of the completeness of this chapter. 
 The author, Merritt Starr, of Chicago, produced a book which long 
 remained in favor, especially with the younger lawyers. In 1889 a 
 supplement to the foregoing, prepared by Geo. W. Burnell, judge of 
 the third circuit, was published. It covered volumes 55-73, inclusive, 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 303 
 
 beginning where the other left off. In 1895 Judge Burnell prepared a 
 second edition of his supplement, covering the reports from volume 55 
 to 87, inclusive. His work has met with a very favorable reception, 
 and, with Mr. Starr's volume, is now in very general use. 
 
 In 1876 a volume of 318 pages entitled "Table of cases decided by 
 the supreme court of the state of Wisconsin, and reported in" Burnett, 
 Chandler, Pinney and Wisconsin reports, 38 volumes, by William W. 
 Wight, of the Milwaukee bar, was published. While the work was all 
 that the title indicates, it was much more, as the following extract from 
 the preface shows : "The idea of the compiler has been to furnish the 
 judicial history of every case found in the Wisconsin reports, from 
 Burnett to the recently issued 38th volume. To this end an alpha- 
 betical list of these cases has been prepared, each one being succeeded 
 by a reference to the page in subsequent volumes where that case has 
 been commented upon or followed by the court, mentioned by the 
 reporter or appealed to by the pleader." The work was well done and 
 served the purpose for which it was prepared. 
 
 LOCAL TREATISES AND FORM BOOKS. 
 
 Edwin E. Bryant is the author of "a treatise on the civil and criminal 
 jurisdiction of justices of the peace, and the powers and duties of con- 
 stables in executing process in the state of Wisconsin." This was 
 originally published in 1884 in a volume of 1019 pages. This work has 
 been partially revised from time to time by adding references to the 
 later laws and decisions. Besides covering the jurisdiction of justices, 
 Mr. Bryant has written of the substantive law, given a summary of the 
 law of evidence, and very many forms. His work has been very satisfac- 
 tory, as is shown by the continued demand for it and the fact that it has 
 held the field without a rival. 
 
 Mr. Bryant has also prepared a book of "forms in civil actions and 
 proceedings in the courts of record of Wisconsin." It was prepared, 
 says the preface, "to illustrate the lectures and instruction given in code 
 practice in the college of law of the University of Wisconsin. It does 
 not attempt to furnish a form for every class of cases that may arise in 
 
304 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 practice. But as those in most common use are given, and as many 
 of them, framed upon our statutes, can be found in no other collection 
 of forms, the book will be of use to the practitioner in our courts of 
 record as well as to the student." That this work has more than met 
 the modest expectations of its author is apparent from the fact that by 
 1894 a third edition of it was published. 
 
 Mr. Bryant completed, in 1898, a treatise on code practice in civil 
 actions under the Wisconsin code. This work is more especially de- 
 signed for judges and lawyers. 
 
 Besides being the author of the works referred to under this sub- 
 title Mr. Bryant has written two which are mentioned under another 
 subdivision, and various notes of lectures for use in the college of law. 
 
 As early as 1853 William T. Butler, then judge of the county court 
 of Jefferson county, prepared "a treatise on the probate jurisdiction and 
 practice of the county courts of the state of Wisconsin with an appendix 
 of forms framed in accordance with the revised statutes and subsequent 
 session laws." The work contained 222 pages and was published in 
 1853. The older lawyers speak very favorably of its merits. 
 
 George Gale, formerly of the Walworth county bar and later judge 
 of the sixth circuit, was probably the first man in Wisconsin to prepare 
 a law book. As early as 1846 he caused to be published a Wisconsin 
 form book, which was revised and republished in 1848, 1850 and 1856. 
 The writer has access only to the edition of 1850, which is entitled 
 "practical forms, with notes and references; adapted to the revised 
 statutes of Wisconsin; being a convenient manual for men of business, 
 attorneys, sheriffs, constables, town officers, and justices of the peace." 
 
 "Special statutory proceedings before courts and judges in Wiscon- 
 sin, with forms, including habeas corpus, certiorari, and voluntary as- 
 signments." is the title of a work of 203 pages prepared by George Gary, 
 and published in 1895. 
 
 Joseph F. McMullen, formerly of the Milwaukee bar, is the author 
 of a form book which has passed through its fifth edition. The writer 
 is not familiar with the first and second editions, and does not know the 
 dates of their publication. The third edition, copyrighted in 1863, is 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 305 
 
 entitled "The new Wisconsin form book; a compendium of legal and 
 practical forms, with principles of law, adapted to the statutes of Wis- 
 consin, including a digest of amendments and judicial decisions, de- 
 signed for the use of business men, county and town officers, the legal 
 profession, and all classes in the community, to which are added com- 
 plete official forms and instructions under the recent bounty and pen- 
 sion acts." The title page of the fourth edition, copyrighted in 1873, 
 varies a little from that quoted. To the later impressions of it was added 
 a "supplement to conform the work to the revision of 1878 and the 
 laws- of 1879," etc. The fifth edition, adapted to the revised statutes 
 of 1878, was prepared by William W. Wight, of the Milwaukee bar, and 
 pubhshed in 1884. 
 
 "Charles M. Scanlan, LL. B., of the Milwaukee bar," is the author 
 of a work of 150 pages entitled "Law of hotels, boarding houses, and 
 lodging houses, particularly adapted to the state of Wisconsin." This 
 was published in 1890. 
 
 LEGAL BIOGRAPHY. 
 
 "The bench and bar of Wisconsin: History and biography, with 
 portrait illustrations," is the title of a work prepared by Parker McCobb 
 Reed, and published in 1882. It contains 542 pages. 
 
 H. A. Tenney and David Atwood prepared the "memorial record of 
 the fathers of Wisconsin; containing sketches of the lives and careers of 
 the members of the constitutional conventions of 1846 and 1847-48; 
 with a history of early settlement in Wisconsin." This was published in 
 1880, and contains 400 pages. While not confined to biographical 
 sketches of lawyers, it contains brief mention of all members of the 
 profession who were members of either of those conventions. 
 
 LOCAL LAW JOURNALS. 
 
 The first local periodical devoted to the publication of legal intelli- 
 gence was The Wisconsin Legal News. The first issue of the weekly 
 was dated October 17, 1878. The first number of the daily probably 
 appeared a few days earlier. The main purpose of the periodical was to 
 
3o6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 furnish the profession with copies of the opinions of the supreme court. 
 So much of the space of each number as was necessary to present such 
 opinions within a short time after they were filed was devoted to that 
 purpose. The remaining space was occupied by miscellaneous matter 
 of interest to lawyers, including selected cases from other courts. The 
 \\eekly News was continued from 1878 to 1883, and makes five quarto 
 volumes. The last number bearS date September 20, 1883. It was 
 then, apparently, discontinued, and the Daily News, which had been 
 published primarily for the advantage of the Milwaukee bar from the 
 time of the establishment of the weekly, was continued from September 
 26, 1883, until July 3, 1884, on which date the last number appeared. 
 Samuel Howard, of the Milwaukee bar, was the editor and the Wiscon- 
 sin Legal News Company the publisher of both editions of the Legal 
 News. The daily published the syllabi of the opinions of the supreme 
 court the day after they were filed and this information was sent to the 
 weekly subscribers in advance of the publication of the opinions. 
 
 On the 27th of April, 1895, there was published in Milwaukee vol- 
 ume I, No. I, "Wisconsin Legal News," a four-paged paper, containing 
 a number of opinions of the supreme court, and miscellaneous matter 
 relating to legal affairs. The name of Horace P. Henderson appeared 
 as editor. The journal was to be published weekly. Three numbers 
 were issued under that name, the two later ones containing six pages 
 each. The issue for 'Slay 18 was changed to the "Wisconsin Legal Re- 
 porter," and two succeeding numbers followed it. These were enlarged 
 to eight pages. The last issue was dated June i, 1895. 
 
 Though "The Law Library," a monthly review of legal literature, 
 was not designed to be local in its scope, it may be mentioned here be- 
 cause the single number of it which appeared was published in Milwau- 
 kee, Lewis Bohn being the publisher. The declared object of the paper 
 was to furnish critical reviews of law books, bibliographical lists, and 
 index to law periodicals. The first and only number (dated April 15, 
 1892) contained reviews of late books over the signatures of Geo. W. 
 ^^'arvelle, J. R. Berryman, H. Campbell Black, Prof. C. G. Tiedeman, 
 and \y. W. Thornton. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 307 
 
 The "Wisconsin Bench and Bar" made its first appearance under 
 date of April 14, 1898, the place of publication being Milton, Wis., 
 and Mrs. Alric S. Blount being editor. The contents of the weekly 
 numbers issued up to the time of writing this include contributed 
 articles, clippings from exchanges, reviews of new books, selected opin- 
 ions, abstracts of current Wisconsin cases, addresses on legal topics, etc. 
 
 TRIALS. 
 
 Wisconsin is not rich in the literature of trials. The public afifairs of 
 the state have not often been so conducted as to demand legislative in- 
 vestigation or prosecution for defalcation or other maladministration. 
 In the main, the discharge of judicial functions has been committed to 
 pure-minded men. But once has there been a trial before the senate 
 as the high court of impeachment; that resulted in an acquittal. The 
 impeachment proceedings against Levi Hubbell, judge of the second 
 judicial circuit, furnished the state its most celebrated trial, and the 
 report of that trial is the most valuable and sought after book of the 
 kind in the state, and, perhaps, in the northwest. The eminence of'the 
 counsel engaged in that cause have given, in large part, that report its 
 value. E. G. Ryan appeared on behalf of the managers and Jonathan 
 E. Arnold and James H. Knowlton for the defendant. The managers, 
 on the part of the assembly, were H. T. Sanders, G. W. Gate, J. Allen 
 Barber, P B. Simpson and E. Wheeler. The report, by T. G. Leland, 
 published in 1853, contains the charges, evidence, arguments and other 
 proceedings in full. 
 
 A case which excited the greatest popular interest and threatened 
 most seriously to result in armed conflict was that known as Bashford 
 vs. Barstow, which was heard and determined in the supreme court in 
 1856. The proceeding was in the nature of a quo warranto filed by the 
 attorney general on the relation of Goles Bashford vs. Wm. A. Barstow, 
 and involved the right to the office of governor. The eminence of 
 counsel in that case, — Timothy O. Howe, E. G. Ryan, James H. Knowl- 
 ton and Alexander W Randall, for Bashford; Jonathan E. Arnold, 
 Harlow S. Orton and Matt. H. Carpenter, for Barstow — the novelty of 
 
3o8 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the question involved and the partisan feehngs existing, all gave to it 
 very much of interest. The report of the proceedings — though made 
 from newspaper accounts — is sufficientl)- full for practical purposes. 
 The arguments of counsel were generally revised by themselves, and 
 the whole work examined and revised by Judge Abram D. Smith. 
 The publication was made pursuant to legislative action. 
 
 The trial of Sherman M. Booth for seduction is said to have been the 
 result of the litigation which grew out of the attempt to enforce the 
 fugitive slave law. It occurred in the Milwaukee circuit court before 
 Judge McArthur. The case was prosecuted on behalf of the state by 
 Dighton Corson, district attorney, and E. G. Ryan, and defended by H. 
 L. Palmer and Matt. H. Carpenter. The reports of the trial, published 
 in Milwaukee in 1859, contain the arguments and other proceedings in 
 full. 
 
 The only other reported trial occurring in the state of which the 
 writer has knowledge is that of David F. Mayberry for the murder of 
 Andrew Alger. The trial took place in the Rock county circuit court 
 before Judge Doolittle, July loth and nth, 1855, and contains the 
 arguments of the attorneys — Geo. B. Ely, district attorney, and David 
 Noggle for the state, and James M. Loop for the defense, and an account 
 of the defendant's death by a mob. 
 
 GENERAL TREATISES AND DIGESTS. 
 
 Judge W. F. Bailey, of Eau Claire, while on the bench of the seven- 
 teenth circuit, wrote a treatise on "The Law of the Master's Liability for 
 Injuries to Servant." This was published in 1894, and at once com- 
 manded the attention of that large portion of the legal profession inter- 
 ested in litigation of the character of which the work treats. It is a 
 vigorously written book; the author's opinions are expressed with con- 
 siderable force, and opinions which do not conform to his are unhesitat- 
 ingly combated. The work soon obtained a large sale, and has been 
 frequently cited in judicial opinions. 
 
 In 1897 the work referred to was supplemented by one entitled "The 
 Law of Personal Injuries Relating to Master and Servant," which was 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 309 
 
 prepared to give the expressions of the courts on the subject "and prop- 
 erly arrange them." This work was published in two volumes. It has 
 met a professional want, and been correspondingly successful. 
 
 John R. Berryman's first independent eflfort in the preparation of a 
 law book resulted in the publication, in 1888, of "A Digest of the Law 
 of Insurance; being an analysis of fire, marine, life and accident insur- 
 ance cases adjudicated in the courts of the United States, England, 
 Canada, Ireland and Scotland, including the cases relating to insurance 
 in mutual benefit societies." This work was a continuation of a volume 
 prepared about ten years before by O. B. Sansum. 
 
 In 1893 ^ second edition of Judge J. G. Sutherland's great work on 
 the law of damages was published in three volumes. This was mainly 
 prepared by Mr. Berryman, who has also written general articles for 
 the American Law Review, The American Law Register and The Cen- 
 tral Law Journal. 
 
 Edwin E. Bryant is a successful writer of law books. His efforts 
 have mainly been confined to local books, as is indicated in another 
 subdivision of this chapter. In addition, however, he has written "The 
 Law of Pleading Under the Codes of Civil Procedure; with an introduc- 
 tion briefly explaining the common law and equity systems of pleading, 
 and an analytical index, in which is given the code provisions as to 
 pleading in each of the states which have adopted the reformed pro- 
 cedure." This work, the preface, explains, is intended rather as intro- 
 ductory to than a substitute for, the more exhaustive treatises on the 
 law of pleading. It was published in 1894, and has met with a favor- 
 able reception from students and instructors. 
 
 In 1895 there was published a work entitled "The Outlines of Law," 
 which Mr. Bryant prepared. Its aim "is to give the student a glimpse of 
 the general framework of our jurisprudence, so that he may perceive 
 the relation of each (legal) subject to the whole, and refer each branch 
 or topic of the law to its elementary principles and appropriate place in 
 the system." The work was designed for students. 
 
 John B. Cassoday is the author of a work entitled "The Law of Wills: 
 being a series of lectures on the subject of wills delivered before the col- 
 20 , . : 1 I i I ; ! I 
 
310 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 lege of law of the University of Wisconsin." This work was published 
 in 1893. The preface says : "The contents of this book are taken from 
 a series of lectures delivered to the senior classes of the college of law 
 of the University of Wisconsin. With some hesitancy the publication 
 is allowed, in deference to a seeming desire of students and alumni. The 
 want of time to revise, extend and enlarge the worky,so as to be of more 
 service to the profession, is regretted." This work has continued to be 
 the text book on the subject of which it treats in the local college of law. 
 It contains a large amount of law, and considers the leading cases on 
 the subject. The profession would have been pleased if the learned 
 author had given his own views on many of the questions treated of. 
 Judge Cassoday's learning in that branch of the law is extensive, and 
 a presentation of it would have been highly valued by lawyers and jurists. 
 But the work was prepared for students, and circumstances forbade 
 the author from putting it in a form which would better have comported 
 with his abilities and scholarship. 
 
 "The Road Rights and Liabilities of Wheelmen," is the title of a 
 book written by George B. Clementson, of the Grant county bar, and 
 published in 1895. Mr. Clementson, with undue modesty, hesitates to 
 call his production a monograph, and says that it was not his object "to 
 make a treatise or compilation for the use of lawyers, for at present they 
 probably have but infrequent need of reference to an essay of the kind. 
 Yet in case the necessity for research along the present line should arise, 
 he believes the practicing attorney will find herein something for his 
 brief." This book was a pioneer in its field, and in its preparation there 
 was expended a very considerable amount of labor, and judgment and 
 literary taste were abundantly exercised. Many books far more pre- 
 tentious in character possess less merit. As the first attempt of a young 
 man, though it be conceded that he has unusual power, the work is 
 highly complimentary. 
 
 George Gary, of the Oshkosh bar and former judge of the Winne- 
 bago county court, was the first resident of Wisconsin to write a treatise 
 upon a legal topic. His work, entitled "the law and practice in courts 
 of probate under the statutes and decisions of the supreme courts of 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 31 1 
 
 Wisconsin and Minnesota," was published in 1879. The work also con- 
 tained 152 pages of forms. Its reception by the legal profession was 
 cordial, and its usefulness was more fully disclosed as time passed. In 
 1892 a second edition, revised by the author, was published. This was 
 extended to include the statutes and decisions of Michigan, and, like 
 every second edition ought to be, was an improvement on the first. 
 The work is a monument to the learning and industry of Mr. Gary, 
 especially in view of the adverse circumstances (caused by defective 
 vision) under which it was prepared. 
 
 Burr W. Jones, of the Madison bar, is the author of a work which has 
 given him an extended and enviable reputation, and which promises to 
 increase his reputation in both these respects. It is entitled "The Law 
 of Evidence in Civil Cases," and was published in three i2mo volumes in 
 1896. No work of recent times has been more favorably written of by 
 the reviewers, American and English, than this. 
 
 William G. Myer, of Madison, has been connected with more law 
 books than any other Wisconsin writer. Because he has not been ad- 
 mitted to the bar in this state a biographical sketch of him is given here 
 in connection with the works of which he is the sole or co-author. Mr. 
 Myer was born in Rush county, Indiana, in 1845. His parents went to 
 Illinois when he was eleven years old, and settled on a farm in La Salle 
 county, near Ottawa. He remained on the farm until he was twenty-one 
 years old, attending the country school during the winter months, when 
 work on the farm permitted. His education, beyond the merest rudi- 
 ments, was obtained after he was of age, through his own unaided ex- 
 ertions. 
 
 He attended one term at Fowler Institute, Newark, Illinois; took 
 the course at Bryant & Stratton's commercial college, at Chicago, and 
 afterwards took a two years' course at the state normal university of 
 Illinois. On leaving the normal university, in 1869, he became principal 
 of the schools at Loda, Illinois, where he remained three years, during 
 which time he began studying law, and was admitted to the bar in 
 Missouri in 1872, opening an office in St. Louis, where he remained until 
 the spring of 188 1. Soon after settling in St. Louis he met the late W. J. 
 
312 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Gilbert, of the Gilbert Book Company, and was induced to engage in 
 what proved to be his life work, viz., the writing of law books. His first 
 venture was an index-digest of the Missouri reports, which was fol- 
 lowed by indexes to the reports of Ohio, Iowa, Tennessee, and the re- 
 ports of the supreme court of the United States. He also prepared an an- 
 notated constitution of Missouri, a supplemental volume to Wagner's 
 Missouri statutes, a supplement to Whittelsey's Missouri practice, and 
 assisted in the preparation and publication of Green's Pleading and Prac- 
 tice in Code States, to which work he also prepared a supplement, with 
 forms, adapting it to the practice in Missouri. 
 
 Following this was a digest, in two volumes, of the Texas reports, 
 which was begun by Judge Seymour D. Thompson, of St. Louis, and 
 taken up and finished by Mr. Myer in 1881. 
 
 He came to Madison, Wisconsin, in the spring of 1881, partly for his 
 health, and also to superintend the printing of his Texas Digest. In the 
 spring of 1882' he began work on Myer's Federal Decisions, which oc- 
 cupied his time, and that of a large body of assistant editors, during 
 the next seven years. This is a work of thirty large volumes, and com- 
 prises the decisions of all the federal courts, down to the date of publica- 
 tion. The decisions are redigested, and arranged according to the sub- 
 ject matter, instead of chronologically. The work presents the federal 
 law in a form to render it easily accessible, and within the reach of 
 lawyers of moderate means. While Mr. Myer was the responsible 
 editor, and had the entire supervision of the work, he was assisted by a 
 number of eminent law writers. Among these were Senator Daniel, of 
 Virginia, James Schouler, Prof. W. G. Hammond, dean of the St. Louis 
 law school, E. H. and S. C. Bennett, of the Boston law school, Leonard 
 A. Jones, Benj. Vaughan Abbott, Judge B. R. Curtis, of the Boston 
 law school, Percy D. Maddin, of Nashville, Tenn., Simon Greenleaf 
 Croswell, Melville M. Bigelow, F. A. Farnham, W. D. Baldwin, and 
 Woodbury Lowery, of Washington, D. C, C. F. Beach and E. W. Patti- 
 son, of St. Louis. His principal office assistants were Adelbert Hamil- 
 ton, of Chicago, Theodore B. Wallace, of Missouri, and Charles R. Dar- 
 ling, of Boston. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. S^S 
 
 In 1891 Mr. Myer published a work on vested rights — selected cases, 
 with notes, on retrospective and arbitrary legislation affecting vested 
 rights of property, under the federal and state constitutions. Recently, 
 associated with the late Hon. John Sayles, of Abilene, Texas, he has 
 prepared a digest, in three volumes, of the later Texas reports, a work 
 in two volumes on practice in civil cases in courts of record in the 
 state of Texas, and ah annotated civil statutes, in two volumes, for 
 the state of Texas. He has also rendered assistance in the preparation 
 and publication of other works to which his name does not appear, such 
 as the Texas reports, and other works for Texas and Missouri. 
 
 He was married, in Madison, in 1885, to Miss Eva B. King, and is 
 living at present on his country place, consisting of eight acres, two 
 miles east of the capitol, near the north shore of Lake Monona. 
 
 He is not a member of the bar of Wisconsin. Not having the time 
 nor inclination to enter upon the practice of the law, he has never ap- 
 plied for admission to the bar of that state. 
 
 In politics Mr. Myer is a republican. He has never held a political 
 office of any kind; has never sought or asked for an office, and office 
 has never sought him. 
 
 James Simmons, of the Walworth county bar, is mentioned in con- 
 nection with his Wisconsin digests and as the reporter of several vol- 
 umes of the decisions of the courts of Wisconsin, in other subdivisions 
 of this chapter. He has, however, produced other volumes of digests. 
 Among them, volumes 4, 5 and 6 of Clinton & Wait's digest of New 
 York reports. (See the preface of the 6th volume.) These were pub- 
 lished in 1870, 1877 and 1882. Another work by the same author is a 
 "digest of Moak's English reports, volumes i to 15, inclusive; with a 
 list of cases reported, table of cases reversed, overruled and considered." 
 This was published in 1878, and a continuation of it in 1886. 
 
 William W. Wight, of the Milwaukee bar, is the author of an inter- 
 esting and learned monograph entitled "Lord Mansfield's Undecided 
 Case," which treats of the disposition of the property of relatives, dev- 
 isees and legatees perishing in the same calamity. This was published 
 in 1893, and contains 27 pages. 
 
CHAPTER X. 
 THE STATE BAR ASSOCIATION OF WISCONSIN. 
 
 BY EDWARD P. VILAS. 
 
 For some time prior to the meeting first mentioned below, there had 
 been more or less desultory consideration of the propriety, and even- 
 advisability, of the organization of a state bar association, and upon the 
 happening of a vacancy in the position of judge of the district court for 
 the western district of this state, there ofifered an opportunity, of which 
 advantage was taken and out of which arose the present organization. 
 
 On September 26th, 1877, a meeting of the bar of the western dis- 
 trict was held at Madison, to consider the selection of a district judge to 
 be recommended by the bar in place of Hon. James C. Hopkins, then 
 recently deceased. At this meeting preliminary steps were also taken 
 for the formation of a state bar association, and a committee was ap- 
 pointed who subsequently issued the call for the meeting at which the 
 bar association was afterwards organized. The meeting of the 26th 
 of September was adjourned to October i6th, at which adjourned meet- 
 ing Hon. Romanzo Bunn was selected as the choice of the bar of the 
 district, and his appointment by the President soon followed. The com- 
 mittee appointed at the September meeting was authorized to take 
 such action as it should deem expedient to effect the organization of the 
 bar association, and on December 8th, 1877, a call for the preliminary 
 meeting of the bar of the state at large was published in the following 
 form: 
 
 "STATE BAR MEETING. 
 
 "To the Members of the Bar in the State of Wisconsin: 
 
 "At a meeting of the members of the bar of the western district of 
 Wisconsin, held on the 26th day of September last and attended by 
 many lawyers from various parts of the district, it was resolved to initiate 
 
 314 
 
img^ijy WTJiachEl 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 315 
 
 a movement for the formation of a state bar association. In pursuance 
 of such resolution we, the undersigned, were appointed a committee and 
 requested to call a meeting- for the purpose of effecting such organi- 
 zation. 
 
 "We fully concur with our professional brethren who have made this 
 request, in the belief that much advantage to the profession and to the 
 state ^yill result from such an association properly formed and main- 
 tained, and we take pleasure in assisting to form it. We, therefore, 
 appoint the 9th day of January next, at twelve o'clock M. as the time, 
 and the city of Madison as the place, of such meeting; and we cordially 
 invite the lawyers of the state to attend and take part in the deliberations 
 of the meeting and to cooperate in founding and upholding the pro- 
 posed association. 
 
 "Madison, Wis., November 12, 1877. 
 
 "(Signed) E. G. RYAN, 
 
 Chairman. 
 
 "L. S. DIXON, 
 "H. B. JACKSON, 
 "DAVID TAYLOR, 
 "O. B. THOMAS, 
 "JOSEPH W. LOSEY, 
 "C. M. WEBB, 
 "J. C. SPOONER, 
 "WM. F. VILAS, 
 
 "Secretary, 
 
 "T. R. HUDD, 
 "J. M. BINGHAM, 
 "JOHN R. BENNETT, 
 "H. H. HAYDEN, 
 
 "Of the Committee." 
 
 Pursuant to this call, a meeting of the members of the bar was held 
 in the old supreme court room in the capitol at Madison on the 9th of 
 January, 1878, at which the present organization was perfected. The 
 meeting was called to order by Chief Justice Edward G. Ryan as chair- 
 man of the committee, who delivered the following address: 
 
3l6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Brethren of the Bar: 
 
 As chairman of the committee which called this meeting, I have the 
 pleasant duty of welcoming you here. I have long desired to see an 
 efficient association of the state bar; and I am happy to think that the 
 auspicious time has at last come when one may be formed. 
 
 The uses of such an association are obvious. Without it, the bar 
 cannot properly assert itself or exercise its due influence in matters of 
 interest to it. Doubtless, in matters bearitjg on the interests of the 
 profession, individual members of the bar exercise some influence. But 
 such influence is necessarily fragmentary and sometimes discordant. 
 The bar, as a body, can only have the influence which properly belongs 
 to it, on professional subjects, through an organization by which it can 
 speak with one voice. 
 
 The vast body of our law, called the common law, is the work of our 
 profession; the wise and just rules which have been the legacies of 
 generations of lawyers, through the centuries, to all common law- 
 people. And these constitute to-day, not only the great body of our 
 municipal law, but the bulwarks of civil and religious liberty, of the 
 rights of persons and of things, more extensive and secure than any 
 written constitution. If it be true that the common law was somewhat - 
 due to the free spirit of the people amongst whom it arose, it is none the 
 less true that it has educated all the peoples with whom it has prevailed, 
 to higher, firmer and more independent manhood. It may be safe to 
 say that no people, thoroughly educated in the rights of the common 
 law, could be brought to tolerate an oppressive political system. Civili- 
 zation from time to time outgrows some of the fixed rules of the com- 
 mon law; and it is the business of legislation to relax them and to adapt 
 the common law to the existing condition of society. And the pro- 
 fession which is educated in the common law and has mastered it as a 
 science, ought to have an influential voice in all legislation which modi- 
 fies or repeals its rules. 
 
 But it is not outside only, but inside of itself, that the judgment and 
 common voice of the bar should be heard and felt. We are all proud 
 of our profession; proud of the multitudinous worthies who have made 
 it illustrious in the past and who are showing forth its honor in the 
 present. No profession or calling has given so many great names to 
 American history as the bar. There is no state in the Union on which 
 the names of its great lawyers have not shed luster. An American law 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 317 
 
 list from the beginning would embrace a large proportion of the names 
 held in honorable memory, by the American people. There is a passion 
 for military glory amongst all nations — hero worship. And the glory of 
 the soldier may be more dazzling than the glory of the statesman- 
 lawyer, but it is less solid; for the truest glory of the soldier, here at 
 least, is to preserve the work of the statesman. The path of the soldier, 
 however patriotic or worthy the war, is destruction. The path of the 
 statesman-lawyer is organization; and the path of every lawyer, worthy 
 the name, is preservation. And in a high sense, true heroism may be in 
 a tribunal ag well as on the battlefield. Duty, fearlessly and faithfully 
 performed, against all influences and difficulties, is the only true glory. 
 Moral courage is a higher quality than physical. 
 
 He reads American history superficially who does not see the illus- 
 trious dead of our profession, battling in the vanguard for all true po- 
 litical and social amelioration; and he who looks upon society without 
 seeing in the profession the sentinels of social order, sees through a glass 
 darkly. In civilization, a community without a bar is worse off than 
 an army encamped without sentinels; for the army may rally against 
 surprise, but a community cannot peaceably defend its rights without 
 the aid of the bar in the administration of justice. If the millennium 
 be coming, it has not come. And the administration of justice is essen- 
 tial to the security of all rights, public and private; essential to all social 
 order. There is the strength of the bar, powerful where an army would 
 be powerless. In peaceful social order, the integrity of the state and 
 every sacred personal right is in the keeping of our profession. The 
 legislative power would pass laws and the executive draw the sword to 
 enforce them, in vain, if there were no courts to administer them; and 
 a court without a bar would be little better than an untrustworthy illu- 
 sion — a disturbing phantom of justice. For not only must the bar edu- 
 cate competent judges, but it is the efficient and only fit censor of the 
 judges promoted from it; a police power over the intelligence and 
 justice of courts. In common law courts, the bar is as essential as the 
 bench. A learned and independent bar is a condition of true civiliza- 
 tion. 
 
 But the glory of the bar and the easy access which it gives to high 
 place have drawn towards it men unfitted for it by nature or education. 
 The bar has no exemption from fools or knaves. The fooHsh lawyer 
 is perhaps the most dangerous of all fools; almost a knave, by assum- 
 
3l8 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 ing duties of such grave import to the well-being of society, without 
 adequate ability or training. Horace says that poets are born, not 
 made; and perhaps orators are born also, though Horace thinks they 
 are made; but though there may be geniuses who think that they are 
 born lawyers, we know that a lawyer is born only of years of patient, 
 steadfast, laborious study, and even then the safest knowledge of the 
 wisest lawyer is the comprehension of how limited and uncertain his 
 knowledge is. A knavish lawyer is certainly the most dangerous of all 
 knaves, for it is to the profession that, in time of peril, all rights of 
 person and property are committed. The bar is the trustee of every- 
 thing which man holds sacred; and the opportunity to betray trust is 
 fearfully easy. Indeed, it may be- truly said that integrity of character 
 is as essential to a lawyer as professional learning, for without innate 
 love of truth and justice it is impossible truly to comprehend a profession 
 essentially founded on truth and justice; and it is perhaps amongst the 
 highest glories of the profession that instances of betrayed trust are so 
 rare in its ranks. 
 
 But it must be admitted that there are unworthy members of the 
 bar. The rule of admission is unfortunately lax. The doors are not 
 ajar, but wide open. And there are those who have come in at them 
 who should surely pass out of them. Doubtless all or most of you 
 have had the same experience as myself. At the bar and on the bench 
 I have sometimes seen — not often, but sometimes — conduct, even 
 amongst able lawyers, calling loudly for scrutiny or censure; ignorance 
 so great as to be almost guilt, and malpractice so audacious as to be al- 
 most folly. Such should not be permitted to abuse public confidence 
 in our profession, or to cast a shadow upon its honor. 
 
 The power of courts to weed the profession of its unworthy mem- 
 bers is limited and inadequate. Judges may be painfully obliged to 
 surmise professional default, without judicial knowledge. All efficient 
 steps to purge the bar must come from the bar itself. And this could 
 scarcely be done — is almost never done — ^lay individual effort. The 
 aggregate bar must speak and act. The great body of the profession 
 should enforce its ethics; censure what is worthy of censure, and move 
 to disbar all who forfeit the honor to belong to it. This I take to be 
 a main object of the association which you propose to form. 
 
 And the security of the profession should not stop at the bar; it 
 should reach the bench. Positi\eh- corrupt judges are very rare, the 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 319 
 
 black swans of the profession. But a long life at the bar has led me 
 to fear that semi-corrupt judges are not altogether so rare; men who 
 insensibly look out of court room windows to see how the wind blows; 
 men incapable of corrupt motive, but not above the influence of semi- 
 conscious partiality; the dullards and cowards of the bench, who cannot 
 and dare not look the truth in the very face, and declare it ruat coelum. 
 The bench has no exemption from weakness or ignorance. And these 
 are perhaps more dangerous in judicial offlce than corruption, because 
 neither bar nor people are so intolerant of them. And yet it would be 
 difficult to judge which way works the greater judicial wrong — the weak 
 and ignorant judge, or the corrupt judge. These blights upon the 
 administration of justice may not be so easily removed from the bench; 
 but the voice of a united and unanimous bar would be potent to keep 
 them from it. 
 
 And it is not only by direct action that a bar association, with these 
 objects, would be felt for good. The existence of such a body, ready 
 and potent to strike, would operate as a wholesome restraint; would 
 strengthen weak conscience in others. We may at least hope that it 
 will be so. We may at least hope that a few years of action and influence 
 of such an association will go towards making universal the conviction 
 that a lawyer is the most trustworthy of men in peril; true to his client 
 when all else desert him; that a good lawyer is essentially a good man, 
 an enlightened, high-minded, honorable gentleman. 
 
 For obvious reasons, gentlemen, I cannot share your deliberations 
 or your work. If I should survive my term of office, I hope to find a 
 place in your association. Until then, my work for the honor of the 
 profession must be essentially distinct from yours. And I beg you now 
 to choose your presiding officer, that I may retire. 
 
 Notwithstanding the very obvious meaning of the last paragraph 
 of the address, the chief justice was at once nominated as president of 
 the meeting, but he promptly decHned to take further part in the organi- 
 zation of the association, for the reason that the court over which he 
 presided might be called upon to act judicially upon matters brought 
 before it by the association. Thereupon Moses M. Strong was nomi- 
 nated and unanimously elected president of the meeting, and Edwin E. 
 Bryant was elected secretary. William F. Vilas, secretary of the com- 
 
320 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 mittee appointed to call the meeting, stated the circumstances which 
 led to the call — the action of the western district bar meeting and of 
 the committee, and on behalf of the latter submitted and read the con- 
 stitution which was recommended by the committee as the basis of 
 organization. The constitution was thereupon considered by sections 
 and adopted, and still stands as the constitution of the organization 
 without change, except in the matter of the place of holding the annual 
 meeting, and a minor amendment relative to the filling of vacancies in 
 office. Upon the adoption of the constitution, officers of the state bar 
 association were elected as follows: 
 
 President, Moses M. Strong of Mineral Point. 
 Vice-presidents: First circuit, T. D. Weeks of Whitewater. 
 
 Second circuit, A. R. R. Butler of Milwaukee. 
 Third circuit, L. F. Frisby of West Bend. 
 Fourth circuit, David Taylor of Fond du Lac. 
 Fifth circuit, J. Allen Barber of Lancaster. 
 Sixth circuit, J. M. Morrow of Sparta. 
 Seventh circuit, M. A. Hurley of Wausau. 
 Eighth circuit, S. H. Clough of Superior. 
 Ninth circuit, A. G. Cook of Columbus. 
 Tenth circuit, W. H. Norris, Jr. of Green Bay. 
 Eleventh circuit, J. M. Bingham of Chippewa Falls. 
 Twelfth circuit, no election. 
 
 Thirteenth circuit, H. H. Hayden of Eau Claire. 
 Secretary, Edwin E. Bryant of Madison. 
 Treasurer, J. H. Carpenter of Madison. 
 
 Executive Committee for three years: John W. Cary of Milwaukee, 
 
 W. F. Vilas of Madison, 
 A. A. Jackson of Janesville; 
 For two years: F. C. Winkler of Milwaukee, 
 H. B. Jackson of Oshkosh, 
 S. U. Pinney of Madison; 
 For one year: J. W. Losey of La Crosse, 
 J. V. Quarles of Kenosha, 
 S. D. Hastings, Jr. of Green 
 Bay. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 321 
 
 Mr. Strong upon assuming the chair as president of the association 
 delivered the following address: 
 
 "Brethren of the Bar: 
 
 "I thank you for the high compliment implied by my election to 
 the position of first president of the state bar association. I do not 
 presume to attribute the compliment so much to personal considerations 
 as to the fact that it is my fortune to have outlived in active practice 
 all the other members of our profession who were in practice when I 
 first entered upon it in Wisconsin in 1836; a distinction which advanc- 
 ing years admonish me I cannot long expect to retain. 
 
 "Permit me to congratulate you, and the other members of the bar 
 of the state whose names will soon be enrolled with ours, upon the 
 harmonious formation of this association under such favorable auspices. 
 
 "The chief justice, in his interesting address this day to the meet- 
 ing, whose action has resulted in the formation of this association, has 
 so aptly set forth its advantages and utility, that you may well congratu- 
 late yourselves upon the success of your efforts, if it shall so result that 
 your work will be calculated to attain such advantages and usefulness. 
 So far your efforts have been hmited to the formation of a constitution, 
 which is to form the fundamental law of your organization. This for the 
 present is enough. This organic law provides all the machinery essential 
 to the attainment of the objects of the association. 
 
 "A most important part of this machinery is found in the provision 
 for the four standing committees. The committee on amendment of 
 laws will, if it faithfully perform its duties, find much work demanding 
 its attention, not the least important part of which will be the endeavor 
 to obtain such a modification of the laws relative to the admission of 
 attorneys to practice, as will be calculated, by denying the high privi- 
 lege of practicing our profession to persons unfit to enjoy it, either from 
 want of learning, general or professional, or want of moral character, 
 to elevate the character of the profession to that high plane which has 
 made its history at once the pride and boast of all who are worthy to 
 share its honors. 
 
 "The older of you can remember when nothing less than seven 
 years' study, four of which may have been devoted to preparatory studies 
 in college or other high literary institutions, was requisite to entitle 
 an applicant to even an examination for admission to the bar. Now, 
 
322 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 how changed! There are practically no prerequisites of either knowl- 
 edge of law or knowledge of anything else as conditions of admissioti 
 to the bar. 
 
 "In their endeavors to obtain such modification of the laws as have 
 been shadowed forth relative to admission to the bar, the committee 
 on amendment of laws can and should receive essential aid from the 
 standing committee on legal education, whose duties as defined by the 
 constitution pertain to this subject. There are also other and obvious 
 ways in which this committee can materially aid in the important work 
 of elevating the tone of the profession. 
 
 "It is, however, through the agency of the judicial committee that 
 present active steps must be taken to reform the profession, by depriv- 
 ing of its privileges shysters and other unworthy members. It is the 
 province of this committee to hear and consider all complaints against 
 any member of the profession, whether members of this association or 
 not, and to adopt such measures as the committee may deem advisable 
 to effect their removal from the bar. 
 
 "It is supposed that none who are not worthy members of the pro- 
 fession will be and remain members of this association. From the 
 nature of the case, no discrimination can be made in original member- 
 ship; and if it shall be found that a 'black swan' has had the audacity 
 to enroll his name as a member of the association, it can only be purged 
 of his presence by expulsion on vote of two-thirds of its members. After 
 sixty days, however, no one can become a member of the association 
 except upon a vote of three-fourths of its members ; and it is believed 
 that expulsion from the association, or a refusal of admission to it, will 
 have such moral effect that the subject of it will be powerless to contami- 
 nate the profession or to inflict much evil tipon the community by virtue 
 of being nominally a member of the bar. 
 
 "Another important characteristic of our association will be its 
 social element. The fact alone that several hundred members of our 
 common profession, in which we all take so much interest and pride, 
 meet together annually and exchange greetings and indulge in common 
 sources of joy and pleasure, and speak of our common or individual 
 experiences, our successes or our failures, or as may be, and too often 
 will be, to mingle our griefs over the death of some of our brethren, 
 cannot fail to create and annually cement a bond of sympathy and 
 friendship which will be as lasting as time, and as holy as love. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 323 
 
 "Nor will it be an unfitting concomitant of these reunions that 
 their interest be augmented by such social festivities as shall be appro- 
 priate to such occasions. 
 
 "Again thanking you for your kind partiality, I await the further 
 pleasure of the association." 
 
 The first regular meeting of the association succeeding the pre- 
 liminary meeting, was an adjourned meeting held on the 20th of Feb- 
 ruary, 1878, at the United States court rooms at Madison. The other 
 meetings of the association since that time have been as follows: Feb- 
 ruary 17th, 1885, and February i6th, 1886, at Madison; June 15th, 
 1886, at Milwaukee; June 20th, 1893, and an adjourned meeting on 
 the 30th of August in the same year, at Milwaukee; a meeting at Mil- 
 waukee June 26th and 27th, 1895, and the last meeting February 21st 
 and 22d, 1898, at Madison. 
 
 The constitution recites that "the object of the association is to 
 maintain the honor and dignity, and to increase the usefulness and 
 influence, of the profession of the law;" and although the meetings 
 of the association have been somewhat irregular and spasmodic, and 
 the interest taken in the association apparently somewhat phlegmatic on 
 the part of a large portion of the bar, nevertheless the association has 
 been productive of very considerable good and has aided in the accom- 
 plishment of several of the objects for which it was organized. 
 
 At the preliminary meeting in January, 1878, Charles R. Gill offered 
 the following resolution: "Resolved, That the several circuit judges 
 of this state be respectfully requested to strictly observe the laws of the 
 state with reference to the admission of members of the bar;" and al- 
 though the resolution was, after a sharp debate, rejected, nevertheless 
 it attracted attention to the subject, was the occasion of very animated 
 discussion and gave rise in the association, both by reason of the dis- 
 cussion had at that time and at subsequent meetings, to a move- 
 ment which has afifected the entire bar and which the writer believes 
 was quite potential in effecting the change which was later made 
 in the method and requirements of admission to the bar. The rejection 
 of the resolution at this meeting was due to a feeling amongst a majority 
 
324 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 of the members that it reflected upon the circuit judges and savored too 
 much of a supererogatory request to them to observe the laws of the 
 state and a suggestion that they were indulging in a practical disregard 
 of them. At the next meeting, however, in February of the same year, 
 Mr. Gill again offered his resolution. To meet the objections which had 
 been brought against it and which were again urged, L. F. Frisby 
 offered as a substitute the resolution which was finally adopted, in the 
 following terms: "Resolved, That the association is in favor of the 
 strict enforcement of the laws of this state regarding the admission of 
 attorneys." Although the state bar association held no meeting from 
 that time until February, 1885, and although as an association it can- 
 not be said to have afterwards taken any effective part in the movement 
 which culminated in the appointment of a board of examiners for ad- 
 mission to practice at the bar, nevertheless the resolutions in question, 
 and the discussion which was had at the two meetings at which these 
 resolutions were presented, doubtless had a very strong influence in 
 urging the adoption of some method by means of which candidates for 
 admission to the bar would be required to possess a higher degree of 
 qualification than had theretofore been obligatory. But whatever may 
 have been the other influences at work, chapter 63 of the laws of this 
 state for 1885 first provided for a board of examiners for admission to 
 the bar. It was provided that the board should consist of five competent 
 attorneys, residents of this state, to be appointed by the supreme court, 
 the board to hold meetings at the capitol once or oftener in each year, 
 and at such other times as the supreme court should direct, for the 
 purpose of examining all applicants for admission to the bar, and to 
 issue to successful candidates a certificate of qualification for admission. 
 It is further provided that no person shall be admitted or licensed 
 to practice as an attorney of any court of record except, first, graduates 
 of the law department of the University of Wisconsin shall be admitted 
 to the bar of all courts, upon production of the diploma issued by the 
 board of regents; second, all persons who shall have been admitted to 
 practice in the supreme court of any other state or territory and who 
 shall be residents of this state, may be admitted upon production of their 
 
HISTORY OF THE BENCH AND bAr OF WISCONSIN. 325 
 
 certificates of admission to practice in such courts of such other state 
 or territory; third, that every other person of full age, resident of the 
 state, and of good moral character, may be admitted to practice as an 
 attorney in all courts of record, except the supreme court, by an order 
 of a judge of the circuit court made in open court, but the applicant shall 
 first produce the certificate from the board of examiners appointed 
 by the supreme court that he possesses sufficient learning in the law, 
 and ability to enable him to properly practice as an attorney. So far 
 as relates to the admission of applicants living in this state not previous- 
 ly admitted to practice in other states, the act of 1885 remains un- 
 changed to the present time, except that by chapter 310 of the laws of 
 1891 the ijoard of examiners is required to establish a uniform standard 
 of attainment which must be reached by each applicant before he shall 
 receive a certificate; and some provision is also made with respect to the 
 examination papers and their disposition. 
 
 Chapter 174 of the laws of 1897 is another effort to raise the general 
 standard required for admission, by providing that as to attorneys of 
 other states applying for admission here, they shall give satisfactory 
 proof to the court to which they make their application of their having 
 been engaged in actual practice in such other state or territory at least 
 two years prior to application for admission to courts of record in this 
 state; and further providing that any graduate of a law school of any 
 other state or territory, which shall be accredited by the board of 
 examiners as a school of equal standing to the college of law of our 
 own university, may be admitted to practice in the courts of this state 
 on production of his certificate of graduation from such school. 
 
 It is not intended to be assumed in this article that the state bar 
 association has been the author of these different provisions; but only 
 that the subject matter has been under discussion since the early meet- 
 ings of the association. At dififerent meetings various resolutions have 
 been offered, a very considerable discussion of the subject has been had 
 both at meetings and in committee, and various recommendations have 
 been made, from time to time; and that with so much discussion 
 21 
 
326 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 amongst members of the association it is but natural that some fruit 
 must have been garnered from the seed thus planted. 
 
 At the meeting held in June, 1886, the committee on legal educa- 
 tion submitted a report embodying the results up to that time of the 
 act of 1885; an amendment somewhat similar to chapter 174 of the 
 laws of 1897 was at the same meeting proposed, and general discussion 
 of the question evinced great interest in the subject, and it is to be 
 regretted that the space given to this article will not permit the entire 
 report and discussion to be set out at length. The result of it all, how- 
 ever, was that the report of the committee on legal education, with all 
 pending propositions in relation thereto, was recommitted to that 
 committee, with instructions to consult with the faculty of the law de- 
 partment of the state university and the board of examiners of appli- 
 cants for admission to the bar, and that they jointly recommend to the 
 legislature at its next annual session such amendments, if any, of the 
 laws in relation to admission to the bar as they might think proper. 
 And it was also resolved that it was the sense of the association that 
 the period for legal education should be extended. 
 
 It was recognized throughout the entire discussion at each meet- 
 ing that the extension of the course in the law school of the university 
 and the standard of attainments and length of study required by the 
 board of examiners should largely go hand in hand; for otherwise, the 
 one method of admission would draw away from the other. Thus, 
 the standard of attainment before the board of examiners had to be 
 cautiously and gradually extended until the law school course could 
 be so modified and extended as to embrace similar requirements. 
 
 The course in the law school has now been extended to three years. 
 The standard of attainments to entitle a graduate to receive his diploma 
 has been materially raised, and running in parallel lines, the standard 
 required by the board of examiners has also been very considerably 
 raised, so as to keep pace as near as practicable with the requirements 
 of the law school. 
 
 The writer of this article believes that the act of 1885 is the first 
 of the kind passed in any of the states, and that Wisconsin has the 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 327 
 
 distinction of being the first state to adopt this method. It has been at 
 various times claimed that one or another state is the pioneer in this 
 movement, and the claim has been made for New York, and possibly 
 others; but, upon reference to the different acts, the writer has been 
 unable to find one that dates back as far as our act of 1885. 
 
 This method of examination for admission to the bar has not only 
 the advantage of raising the standard of attainments and of relieving 
 the courts from the necessity of examinations, which had become alto- 
 gether too lax, but has made it possible for the law department of the 
 university to extend its course and raise its standards until it requires 
 now a standard of attainment and scope of study well calculated to 
 thoroughly equip a student of the law for active practice. 
 
 At the general election held in November, 1877, an amendment to 
 the constitution was adopted by the people providing for the election 
 of two additional judges of the supreme court, and at the meeting held 
 in February, 1878, an attempt was made by the state bar association 
 to recommend two candidates for election to these places. The legisla- 
 ture, however, was in session, and the parties in that body, aided by 
 delay occasioned by a somewhat acrimonious debate in the bar associa- 
 tion, adroitly forestalled the action of the association, and on the eve- 
 ning before the day on which the association expected to make its 
 nominations Harlow S. Orton and David Taylor were nominated by 
 caucuses of the members of the legislature, and fhe bar association ad- 
 journed without action. 
 
 After the two meetings held in 1878 the association laid dormant 
 until February, 1885. At this meeting there was a large attendance, 
 and an attempt was made to recommend the nomination of a. candidate 
 for office of judge of the supreme court in the place of Hon. David 
 Taylor, whose term would expire on the first Monday in January, 1886. 
 At this meeting a resolution was adopted recommending Levi M. 
 Vilas of Eau Claire as a candidate for associate justice of the supreme 
 court, but shortly afterwards Mr. Vilas declined the candidacy. But 
 little other business, and that of a routine character, was transacted 
 
328 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 at this meeting, except the election of officers and the appointment of 
 standing- committees for the year. 
 
 At the next meeting, in February, 1886, a resolution was introduced 
 earnestly requesting our senators and representatives in Congress to 
 procure, if possible, the passage of an act creating an additional circuit, 
 composed of the states of Wisconsin, Minnesota and Nebraska, and 
 the appointment of the ablest lawyer in the circuit to fill the place of 
 judge thereof, for reasons recited in the preamble to the resolution, to 
 the effect that the state of Illinois required so much of the services of 
 the circuit judges that ^^^isconsin was especially neglected and practi- 
 cally denied its right of review in actions involving less than $5,000. 
 
 The resolution drew out considerable discussion, and was finally 
 referred to a special committee for further action. 
 
 At the next meeting, in June of the same year, the committee re- 
 ported, recommending that the resolution be amended by substituting 
 a request that our senators and members in Congress take action im- 
 mediately, looking towards the passage of some act which to them 
 seems best suited to secure a speedy examination of all pending cases 
 in the federal courts throughout the United States, and to expedite 
 all litigation therein. This resolution was adopted, and during the 
 discussion in connection with it, various schemes were put forward 
 looking to the relief desired, and amongst them the project of having 
 an intermediate court of appeals which, since that time, has been es- 
 tablished by act of Congress. 
 
 The next meeting of the association was held at the United States 
 court room in the city of ^Milwaukee on the 20th of June, 1893. Only 
 routine business was transacted, and the association adjourned to Au- 
 gust 30th, of the same year, for the purpose of participating in the 
 reception and entertainment of the American bar association, which 
 that year held its annual meeting in ^Milwaukee. 
 
 On August 30th the association was again in session, at which 
 time only routine business was transacted. It was at this meeting, 
 however, that Mr. Strong resigned as president, and Judge Seaman 
 was elected his successor. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 329 
 
 The next meeting of the association was held in Milwaukee on the 
 26th and 27th of June, 1895. It was at this meeting that Judge Car- 
 penter of Madison resigned as treasurer, and Mr. Van Valkenburgh 
 was elected his successor. 
 
 Various reports from committees were received, and interesting 
 papers were read by Alexander Meggett of Eau Claire, George G. 
 Greene of Green. Bay, and a paper upon legal education by Gen. E. E. 
 Bryant. This meeting was perhaps more satisfactory in point of at- 
 tendance and interchange of opinions in discussion of the various sub- 
 jects of interest to the members present than any meeting of the associa- 
 tion which has ever been held. 
 
 A feature of nearly all of the meetings of the association has been 
 a dinner on the evening of the last day of the meeting, at which justices 
 of the supreme court and many judges of other courts have been pres- 
 ent as guests. 
 
 The meetings have not been attended, however, at any time with 
 any marked degree of enthusiasm, except on the part of a few. Mem- 
 bers of the bar do not seem to appreciate the real good which these 
 meetings do, and the still greater good which they might accomplish 
 if members of the bar would more generally attend. But the oppor- 
 tunities exist, notwithstanding the apathy with which they are re- 
 garded, and it is the hope of the present officers of the association to 
 awaken a greater interest in it and in its objects, and increase not alone 
 its membership, but the attendance at the meetings, the interest in the 
 objects sought to be gained, and more hearty individual work in carry- 
 ing out what the association as a body may recommend, but is incapable 
 of executing as an association. 
 
 A perusal of the address delivered by Chief Justice Ryan at the 
 first meeting shows that he considered a bar association as a means 
 of the utmost importance to purify the bar of its unworthy and recalci- 
 trant members. Provision is made in the constitution and by-lajvs for 
 disciplining such members of the bar by bringing them before the bar 
 of the proper court upon suitable representation made by the associa- 
 tion. There was in the early days of the association a strong feeling 
 
33° HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 that the bar association would take action looking to the proper pun- 
 ishment of those members of the bar in various parts of the state who 
 should prove false to their trust, and to their oaths as attorneys. The 
 association, however, has never yet acted upon a single case, and but 
 very few have ever been reported to the association for action. There 
 seems to be a profound reluctance on the part of members of the bar 
 to take action looking towards disbarment of unworthy members, even 
 though it reaches a point at which further tolerance would seem almost 
 paramount to complicity; and even then, a bar association rarely takes 
 the initiative steps. Chief Justice Ryan very aptly said that unworthy 
 members of the bar could not well be proceeded against by the indi- 
 vidual, and that such action should come from the united bar as a body, 
 and that if it were understood that such a body existed, ready and wil- 
 ling to strike, and strike hard, when action seems to be demanded, it 
 would exercise a controlling influence over those members of the bar 
 who might otherwise be led to the commission of unworthy acts. 
 
 The bar association of this state has not thus far taken any action 
 which would justify any apprehension from it by those disposed to 
 commit breaches of professional honor or integrity. One of the widest 
 and most useful fields which it might occupy is thus left wholly and 
 entirely unoccupied. 
 
 In the foregoing pages it has been sought to give only an outline 
 of the more important transactions of the various meetings of the 
 association. It is intended rather tO' show what the possibilities of such 
 an association are rather than to detail the comparatively little that 
 has been done; but there has seemed of late an awakening of interest 
 in the association, its business purposes and aims, and it is hoped and 
 expected that the association's influence will be greatly enhanced within 
 the next few years. 
 
 The last meeting of the association was held at Madison on the 
 ■2 1 St and 22d of February, 1898. Up to that time the association 
 had had but two presidents: Mr. Strong holding the ofHce until the 
 adjourned annual meeting. on the. 30th of August, 1893, when he ten- 
 dered his resignation, and Hon. W. H. Seaman, United States district 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 331 
 
 judge of the eastern district of Wisconsin was elected president in his 
 place. 
 
 Gen. E. E. Bryant continued to act as secretary until the annual 
 meeting in February, 1885, when he retired and Edward P. Vilas was 
 elected to the office. 
 
 Hon. J. H. Carpenter was the first treasurer and continued to act 
 as such until the annual meeting held at Milwaukee on the 26th and 
 27th of June, 1895, when he resigned and F. B. Van Valkenburgh, of 
 Milwaukee, was elected as treasurer. 
 
 At the annual meeting on February 22d, 1898, Hon. John B. Cas- 
 soday, chief justice of the supreme court, was elected president; Cor- 
 nelius I. Haring of Milwaukee was elected secretary; Burr W. Jones of 
 Madison was elected treasurer. 
 
 The executive committee is composed as follows: 
 For one year: W. P. Bartlett, Eau Claire; Myron Reed, West Su- 
 perior; H. W. Lander, Beaver Dam. 
 
 For two years: Geo. G. Greene, Green Bay; C. F. Osborn, Dar- 
 lington; Elihu Colman, Fond du Lac. 
 
 For three years: George H. Noyes, Milwaukee; A. A. Jackson, 
 Janesville; A. L. Sanborn, Madison. 
 
 As delegates to the American bar association from this state, there 
 were appointed William F. Vilas, John C. Spooner and Joseph V. 
 Quarles. 
 
 The attendance at the last meeting of the association was not very 
 satisfactory- — comparativel}' little interest being manifested by its mem- 
 bers, notwithstanding the fact that an exceedingly interesting pro- 
 gram had been arranged. A paper was read by Carl C. Pope of 
 Superior upon the subject of "Equity in Criminal Law;" one by Charles 
 "N. Gregory of Madison on "Government by Injunction;" and one by 
 Hon. Peter S. Grosscup, United States district judge of the northern 
 district of Illinois, on "A Lawyer's Duty toward the Promotion of Pop- 
 ular Self-Mastery." A dinner was held in the evening at the Park hotel 
 and toasts given and responded to. Except in point of attendance, the 
 meeting was one of, the best which the association has ever held, but 
 
i332 HISTORY QF THE BENCH AND BAR OF WISCONSIN. 
 
 in point of attendance it was exceedingly disappointing and discourag- 
 ing. Nevertheless, renewed effort will be made to awaken interest and 
 to try to have the association take that position in the state which it 
 ought to secure and maintain. 
 
 The president of the association was requested to deliver at the 
 meeting in 1895 ^^ address on the subject of what the association can 
 and ought to accomplish, and the methods by which such objects can 
 be best attained, and it is perhaps the most fitting close which can be 
 given to this article to reproduce in full his remarks made upon that 
 occasion, which were as follows: 
 
 Gentlemen of the State Bar Association of Wisconsin: 
 
 The meetings of the association have not been held with the regu- 
 larity intended by its constitution, nor have they been so frequent as 
 to furnish much by way of precedent for an address by the president. 
 But this meeting has been called, at a favorable season, with the hope 
 that it may bring a revival of interest and an increase of usefulness, and 
 your executive committee have given their attention to a program in 
 that view. They have also requested that the president open the pro- 
 ceedings with an address "on the subject of what the association can 
 and ought to accomplish, and the methods by which such objects can 
 be best attained." The field of inquiry which this proposal would open 
 is so wide of range and embraces problems of such difficulty that, with 
 the limited time at my disposal, I can offer but a few crude suggestions, 
 trusting they may find some value in awakening your interest in this 
 cause and may possibly lead to consideration of some plans for its ad- 
 vancement. 
 
 The object of the association is clearly and comprehensively ex- 
 pressed in section 2 of the constitution: "To maintain the honor and 
 dignity, and to increase the usefulness of the profession of law." 
 
 It goes without saying that any attainment of these declared ob- 
 jects would be of inestimable benefit to the profession; that there are 
 great possibilities in this direction through organized effort and ex- 
 ample, and that all promotion of the honor and influence of the profes- 
 sion makes for the advantage of the individual members. But it is in 
 the view of the influence which the lawyer possesses in his community 
 and his relations to society at large that these purposes have their great- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 333 
 
 est importance. The profession of the law carries with it opportunities 
 for advancing the material welfare of the people beyond those of any 
 otherprofession or class, and it is consequently charged with higher obli- 
 gations. These opportunities are not due to any intellectual or moral 
 superiority or to qualities of mind which are not equally possessed by 
 others, but they come from the associations of the lawyer and the 
 nature of his work; from the relation of confidence which exists be- 
 tween him and his clients; his advice being sought and given in their 
 affairs, the tendency is to obtain their reliance upon his judgment gen- 
 erally, and thus by example others are inclined to defer to his counsels. 
 He is constantly acquiring intimate knowledge of the various affairs 
 and causes which affect the interests of the community, and becomes 
 conversant with human nature under the closest tests. It is not open 
 to any other occupation to pave the way to such varied and direct in- 
 formation or to such extended public confidence. Most men who take 
 active part in life have occasion, at one time or another, to consult a 
 lawyer, and the business man has usually a regular legal adviser. From 
 his circle of clients there goes out to the lawyer a recognition, which 
 gives him a certain prestige, leading to prominence in the public re- 
 gard, and his suggestions and counsel obtain importance; he is further 
 favored by the familiarity with public concerns which accrues from his 
 professional work, and by adaptability and readiness for their presenta- 
 tion which come from his practice. These advantages are common to 
 the profession, differing only in degree according to the reputation, and 
 each member is in position to take part in moulding and leading public 
 sentiment in his locality. Herein his great responsibility arises. Pos- 
 sessed of the power and the opportunity, it is his duty to exercise it when 
 the occasion demands, and give that sentiment right direction for the 
 general good. This obligation is legal, as well as moral, assumed with 
 the grant to him of privilege to practice the profession, and he is bound 
 to its observance by the oath which was taken upon his admission. 
 
 The memorable address of President Cooley before the American 
 Bar association in 1894 speaks of this duty, having special reference 
 to the public disorders of that year, in a view which should have the 
 earnest consideration of every member of the profession. I quote a 
 passage which perfectly expresses the thought suggested here: "Every 
 lawyer, when he is given license to practice, takes solemn oath to sup- 
 port the constitution of the United States and of the state of which he is 
 
334 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 a citizen. He also undertakes to observe all due fidelity to the courts 
 in which he may practice. His license is a special and valuable privilege 
 which makes him a prominent character in the community in which he 
 lives, and leads to his being made the trusted counselor of persons in 
 other occupations as well as of the public authorities. His advice, 
 thoughtfully given, tends to prevent controversies and dissensions in 
 the community, having their origin in different views of legal rights, 
 and he may be influential in calming passionate excitements and keep- 
 ing the wheels of industry moving peacefully and prosperously where 
 otherwise mischievous counsels might prevail. The power to be thus 
 useful imposes upon him duties and obligations special in their nature 
 and quite beyond those which rest upon persons in other employments." 
 Further on Judge Cooley points out that a lawyer may more effectually 
 support the constitution and laws "by assisting to build up a public 
 sentiment that shall constitute an impregnable bulwark against those 
 who, either through malice or ignorance, or with revolutionary pur- 
 pose, assail them, than it would be possible for him to do by personal 
 service as a soldier or by physical assistance in the suppression of rebel- 
 lion or of domestic disorder." 
 
 This portrayal of the place of a lawyer in the community is not over- 
 drawn, and the words of that great jurist may well awaken a spirit of 
 pride in the profession and of emulation in extending its usefulness. 
 The statistics which are often cited, showing the proportion of lawyers 
 in the work of constitution-making, of legislation and in great popular 
 movements, are neither so interesting nor so convincing as these sug- 
 gestions which bring to the mind of each member his experience in 
 home affairs, and in which he can recognize a primary and important 
 sphere of usefulness, hand in hand with his professional work. To be at 
 the front in creating and fostering healthy sentiment and in defeating 
 harmful movements it is not necessary to become a politician or to en- 
 gage in general politics, although he may incur greater temptations to 
 that line which so often proves the bane of good professional work ; his 
 avoidance would rather tend to strengthen his influence in non-par- 
 tisan matters. This work does not demand the sacrifice of legitimate 
 retainers, but it does require a constant fidelity to the constitution and 
 to the courts as paramount obligations. Although great ability, learn- 
 ing or eloquence may be valuable aids, they are not essential. There is 
 room and work for all, and the duty rests with each to perform his part 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 335 
 
 in advancing the public good. His part must be directed by honest 
 purpose and conscientious regard for his professional oath. 
 
 To retain the profession in this standing of influence and trust no 
 efifort must be slighted which tends to strengthen and improve it. The 
 fact that it has so well preserved its honor and dignity, while its mem- 
 bership increases with great rapidity from year to year, is matter for 
 congratulation and pride, but we must not close our eyes to the 
 dangers which threaten from this influx, in the tendency to strife for 
 retainers; to servility and pandering to popular clamor; to giving sup- 
 port to causes without merit, for profit or notoriety, and in disregard of 
 the oath of fidelity to the courts. An impression is current that the 
 profession is receiving in large and increasing numbers an inferior and 
 demoralizing class of seekers and practitioners who are lowering its 
 quality, but I am well satisfied that they are not numerous with us; 
 that the Uriah Heeps are rare exceptions, and although they may infest 
 the ranks occasionally their stay is short-lived and mainly in the great 
 cities. With us the young men who are struggling into place come 
 with good professional tone, or they rapidly assimilate that which they 
 find for their environment, and the high professional standard seems to 
 hold unimpaired. The purposes of this association are well defined to 
 aid in upholding that standard. Against the lowering tendencies which 
 must creep in it can exercise unity of watchfulness, counsel and ex- 
 ample; its members individually are the outposts and picket line to 
 guard and to give warnings, and by their collective wisdom they must 
 give support to each other and devise ways and means for the general 
 protection and preservation. Such is the aim and the function of this 
 association. No other has a field of greater importance or higher no- 
 bility for its work. It can and should do much in fulfillment of the 
 promises of its constitution, and so doing will prove a boon to the pro- 
 fession and of material benefit to society and the state. 
 
 In outlining objects which seem desirable of accomplishment I have 
 not found serious difficulty, and so far as it has been extended there may 
 not be, within our membership at least, much difference of opinion, ex- 
 cept for omissions, and perhaps as too optimistic. But in coming to the 
 suggestion of means to the end sought, the difficulties are overwhelm- 
 ing in detail and in contingencies, and there is so much of the prob- 
 lematical that I am deterred from any attempt at solution, and must 
 leave that important subject for your future treatment, calling attention 
 
336 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 only to a few patent defects in operation. A first essential is your 
 earnest and persistent cooperation and activity. Your meetings should 
 be held annually without fail, and should be provided with addresses, 
 reports and discussion upon live topics of interest to the profession. 
 They should enlist a general attendance of members, and every proper en- 
 couragement should be extended for an increase of membership to make 
 the association truly representative of the bar of the state and of every 
 section. Your president and officers should be elected from the active 
 practitioners, bringing to their work the enthusiasm and the strength 
 which come from the contest and the intimacies of the legal arena, and I 
 venture a suggestion that rotation in office would be advisable. The 
 all-important matters of the qualification to be required for admissions 
 to the bar and of enforcing compliance with the duties and conduct 
 thereby imposed, after admission, should have your constant attention 
 and care. We are fortunate that legislation is not restrained here as it 
 is by constitutional provision in some sister states whereby the gate- 
 way of admission is practically open to all. For example, it was re- 
 marked recently by one of my colleagues on the bench that in Indiana 
 the constitution provided that any citizen of lawful age and good 
 moral character was entitled to admission to the bar, being the same 
 qualification which is there also prescribed for a license to dispense 
 liquors in a place termed "a bar" in the vernacular. I believe great 
 good has come from our system of state commission for all examina- 
 tions for admission, aside from the certificates of graduation in the law 
 department of the university. Your recommendations for any im- 
 provement would undoubtedly be well received and considered. I have 
 heard it suggested that a requirement for admission to the full privileges 
 of the law department of the university might well be based upon a 
 graduation from some stated school or course which would assure some 
 degree of general qualification. It may well be considered whether a 
 definite term of study in a law office, either before or after graduation, 
 would not be the more just and effective artificial standard for admission. 
 Xo reflection must be implied out of these passing remarks against the 
 excellent work which is accomplished in the law school, the invaluable 
 quality of that work being attested by the high professional standing of 
 many of its graduates. 
 
CHAPTER XI. 
 THE MILWAUKEE BAR ASSOCIATION. 
 
 BY C. I. HARING. 
 
 Closely associated with the history of Milwaukee is that of the Mil- 
 waukeebarassociation. Priorto 1858 there were many lawyers engaged 
 in active practice, a number of whom were educated young men, gradu- 
 ates of eastern colleges who had chosen Milwaukee as their home, and 
 during their active professional career in this city did much to improve 
 the jurisprudence of Wisconsin, and for many years took an active in- 
 terest in every enterprise affecting the interests of that city and the 
 state. These public spirited members of the bar are entitled to much 
 more credit than is usually accorded to them. The records of our 
 supreme court are enriched by their most careful work; on the bench, 
 at the bar, in the legislative halls, in the city council and in the business 
 world they have acted well their parts. In the earlier days a much 
 more fraternal and social spirit obtained among the lawyers of Mil- 
 waukee and a much more public spirit was shown by them than appears 
 to exist at the present time. 
 
 The original records of the association disclose many evidences 
 of this public spirit. It appears from the original minutes now in the 
 hands of Mr. C. I. Haring, the present secretary of the association, that 
 during the month of May, 1858, a committee was appointed to procure 
 the passage of an act for the incorporation of a library association. At 
 an adjourned meeting of the associatioii of the bar of Milwaukee, held 
 May 23, 1858, this committee reported their success by presenting a 
 copy of a bill certified by the secretary of state to be a true copy of an 
 act to authorize the incorporation of law schools and law library associa- 
 tions, which had been passed by the legislature of that year, and is now 
 known as chapter 126 of the laws of 1858. This law authorizes the 
 
 incorporation of law schools and law library associations by any num- 
 
 337 
 
338 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 ber of persons not less than nine; such incorporation shall have per- 
 petual succession and shall have and enjoy all the privileges, franchises, 
 and immunities incident to a corporation, and shall be capable in law of 
 suing and being sued, pleading and being impleaded, answering and 
 being answered unto, defending and being defended in all courts and 
 places in any and all manner of actions, suits, complaints, matters and 
 causes whatsoever. They may make, have and use a common seal, and 
 alter, break, amend and renew the same at pleasure, etc. 
 
 Acting under this general law and for the purpose of organization, 
 a meeting of the association was held shortly thereafter, and the fol- 
 lowing named members of the bar were named as a committee to 
 execute a proper testimonial : 
 
 Edward G. Ryan, Nelson Cross, John B. D. Cogswell, James S. 
 Brown, Norman J. Emmons, Ammi R. R. Butler, Jonathan E. Arnold, 
 Otis H. Waldo and Henry L. Palmer. 
 
 On October 23, 1858, these members of the committee presented to 
 the bar association a written testimonial of incorporation of the Mil- 
 waukee law institute with a capital stock of $100,000, and the avowed 
 object and purpose of establishing, organizing and conducting in Mil- 
 waukee a law school and law library association. This testimonial ap- 
 pears to have been duly acknowledged before Matthew Keenan, who 
 was then the clerk of the circuit court. It is to be observed in passing 
 that the subsequent records of the bar association contained resolutions 
 on the death of nearly every member of this committee, and not one of 
 the survivors is now in active practice in Milwaukee. 
 
 The original subscription to the stock shows the following names: 
 
 J. E. Arnold, $1,000; Butler, Buttrick & Cottrill, $2,000; Finches, 
 Lynde & Miller, $2,000; Cary & Pratt, $1,000; H. L. Palmer, $1,000; 
 Levi Hubbell, $500; Brown & Ogden, $1,000; Henry F. Prentiss, four 
 shares, $100; Hooker & Spankenberg, $500. 
 
 Subsequent records show that no further steps were taken towards 
 perfecting or acting under this incorporation. 
 
 During the year 1858 the members of the association of the bar of 
 Milwaukee, which had been previously organized, adopted a general 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 339 
 
 constitution which was subscribed by all the most prominent lawyers 
 then in active practice. This constitution sets forth that the members 
 of the bar of Milwaukee, being desirous of establishing and maintaining 
 a higher standard of professional acquirement and deportment and of 
 promoting a proper degree of harmony amongst its members, have or- 
 ganized, etc.; and it is expressly stated that one of the particular ob- 
 jects of the association is to settle all dififerences that may arise be- 
 tween its members in professional matters, and for that purpose when- 
 ever a complaint shall be made to this association in writing by one 
 member against another, the association shall have authority to hear 
 and investigate the same, giving in all cases the parties interested full 
 opportunity of being heard, and in case any member shall refuse to 
 comply with the decision of a majority of the members of the associa- 
 tion upon such matters of complaint he shall forfeit his membership. 
 
 These provisions undoubtedly had a very wholesome effect upon 
 the members of the bar in placing each practicing lawyer upon honor 
 to deal fairly and act honestly, and some of the most interesting pro- 
 ceedings for disbarment to be found in our records were brought 
 under the authority conferred by this first constitution. The original 
 records show the names of: 
 
 Jonathan E. Arnold, E. G. Ryan, H. N. Wells, Matt. H. Carpenter, 
 
 A. Finch, M. H. Finch, Arthur McArthur, Levi Hubbell, H. L. Palmer, 
 John B. D. Cogswell, Thos. L. Ogden, N. J. Emmons, W. A. Pren- 
 tiss, Otis H. Waldo, Wm. P Lynde, A. R. R. Butler, Wilson Graham, 
 James S. Brown, James B. Cross, Joshua Stark, J. H. Van Dyke, 
 Byron Paine, A. G. Miller, Edward Salomon, Chas. A. HamiUon, 
 James G. Jenkins, D. A. J. Upham, C. K. AVells, Winfield Smith, 
 
 B. J. Johnson. Among these are found some of the most prominent 
 lawyers who have ever practiced at the Wisconsin bar: Jonathan E. 
 Arnold and H. N. Wells were among the earliest arrivals in Milwaukee, 
 and quickly took the lead in their profession. As a criminal lawyer, 
 strictly speaking, Mr. Arnold never had an equal here unless it was 
 yir. Wells in his palmiest days. 
 
 Compared with Judge E. G. Ryan, Mr. Arnold stood out in marked 
 
340 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 contrast. The following has been written describing these two great 
 lawyers : 
 
 "Mr. Ryan, petulant, impatient of opposition, rolling his great eyes 
 about seemingly in search of those terrible expressions of sarcasm and 
 bitterness of which he knew himself master. Mr. Arnold, stately, 
 courtly, richly humorous or eloquent, never out of temper, pouring out 
 at last such outljursts of rich speech that the jury sat dumb under the 
 spell." 
 
 The name of Matt. H. Carpenter calls before us one of the greatest 
 constitutional lawyers of the country; this most brilliant and eloquent 
 pleader is too well known by the people of Milwaukee to need further 
 comment here. 
 
 Asahel Finch came to Milwaukee in 1839 and formed a partner- 
 ship with H. N. Wells and Hans Crocker under the name of Wells, 
 Crocker & Finch; in 1842 Mr. Finch formed a new partnership with 
 William Pitt Lynde, under the name of Finch & Lynde. In 1857 Matt. 
 H. Finch and B. K. Miller joined the firm, and the name was changed 
 to Finches, Lynde & Miller, one of the best known and oldest firms of 
 the west. 
 
 Arthur McArthur, whose name appears frequently in the records, 
 was an active member of the association. He came to Milwaukee in 
 1849. He held many positions of trust, and died a very short time ago 
 at the age of eighty-one years. 
 
 Mr. H. L. Palmer, N. J. Emmons and A. R. R. Butler all ranked 
 among the ablest lawyers at the Milwaukee bar. 
 
 If space permitted, many interesting facts could be written of nearly 
 all these men whose names appear in the list. 
 
 The first bar supper held in Milwaukee was given by Judge A. G. 
 Miller in 1841 at his home, which was then in the present location of 
 Marshall & Ilsley's bank on Broadway. There were twelve guests, 
 among whom were Hans Crocker, Asahel Finch, Chas. J. Lynde, John 
 Tweedy, J. E. Arnold, H. N. Wells, Wilson Graham, F. W. von Cotz- 
 hausen and a number of others. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 341 
 
 On May 23, 1858, at a meeting of the bar, a formal fee bill was 
 adopted; among the items are found the following: 
 
 Procuring a petition for divorce, to be paid or secured in advance. .$ 50 
 
 Retaining fee in all litigated suits 20 
 
 Retaining fee in United States District Court 25 
 
 Collections, 10 per cent on $300 or under; 5 per cent on excess 
 to $1,000; 2^ per cent on excess over $1,000. 
 
 Litigated cases for sums over $1,000 40 
 
 Litigated cases in tort when settled before trial 25 
 
 Litigated cases in tort when tried 50 
 
 Argument for new trial 10 
 
 Services of counsel in litigated cases, per day 10 
 
 Foreclosure of mortgages over $1,000 50 
 
 Arguing case in supreme court 75 
 
 Litigated cases before justices 10 
 
 Drawing petition for mechanic's lien 10 
 
 Drawing assignment for benefit of creditors 30 
 
 Supplemental proceedings lO 
 
 Fees in criminal cases (to be paid or secured in advance) : 
 
 Managing case in police court 10 
 
 Habeas corpus cases 25 
 
 Defense in misdemeanor 25 
 
 Defense in felony 50 
 
 Defense in manslaughter or murder 100 
 
 At this same meeting steps were taken for the purpose of holding a 
 bar supper, which was held on June 11, 1858, at the Newhall house, 
 and the following are some of the toasts which were responded to on 
 that occasion: 
 
 The Law: The zone of the universe, binding together alike planets 
 and people; in heaven preserving order; on earth, life, liberty and prop- 
 erty. 
 
 The Legal Profession: An ancient and honorable fraternity, dis- 
 tinguished in all civilized nations as the foundation of learning, the soul 
 of patriotism, the expounder and defender of the right, the uncom- 
 promising foe of oppression and wrong. 
 
 The Executive and Judiciary Departments: Always respected by 
 22 
 
342 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the bar, they command our homage when they embody wisdom, learn- 
 ing and elevated moral character. 
 
 The American Lawyer: Less trammeled by forms, less awed by 
 power than his brethren of the old world, he has equal necessity for 
 varied learning, a broader field for eloquence and more commanding 
 calls upon his zeal, generosity and patriotism. 
 
 Our Clients: In whom we live, move and have our being. May it 
 be our very last cause that furnishes a complaint against them. 
 
 The Court of Cupid : A tribunal before which lawyers' pleas always 
 please; where attachments are seldom dissolved; where the execution 
 takes the body, and the supplementary proceedings never fail to satisfy 
 the judgment. 
 
 The Printing Press and the Bar: Like the elements, the one with 
 diffusive power sheds light, heat and moisture over the moral and po- 
 litical world; like the prudent husbandman, the other trains up the 
 cherished plants of right, and plucks out the growing weeds of wrong. 
 
 The Judiciary of Our Country: Independent and pure, the stay and 
 prop of our government and the protection of its citizens. Dependent 
 and corrupt, the curse of the government and the despoiler of its people. 
 
 The Members of the Milwaukee Bar: Ever advancing in numbers, 
 may they increase equally in solid learning, in spotless integrity, in 
 fidelity to clients, and in honor, good fellowship and harmony amongst 
 themselves. 
 
 Wisconsin Legislature: Successful in making bad laws, they will 
 prove unsuccessful in breaking legal contracts. 
 
 The public spirit of the Milwaukee bar association was shown at a 
 meeting called April i6, 1865, to take action on the death of President 
 Lincoln. Resolutions were prepared and submitted which stated, 
 among other things, "that while in his public life Mr. Lincoln has proven 
 himself a man, a statesman and a patriot of clear head, honest heart and 
 unfaltering loyalty, and in his life and death he has won for himself an 
 immortal name in the history of this country, we rejoice that he has 
 lived to seal his mission with the glory of success and the vision of a 
 restored and fraternal union. Let us hope that the mantle of his many 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 343 
 
 virtues will fall upon his successor, and that his great name, courageous 
 statesmanship, and devoted patriotism may animate and inspire for all 
 time to come the young men of America." 
 
 Some of the most influential and best known members of the bar 
 have from time to time occupied offices in this association. Jonathan 
 E. Arnold was its active president from 1858 to 1869. His successors 
 were: Wm. P. Lynde, A. R. R. Butler, and Joshua Stark. Among 
 the gentlemen who have acted as vice-president are noticed the names 
 of Judge Levi Hubbell, O. H., Waldo, James G. Jenkins and A. L. 
 Gary. Those who have acted as secretary are John B. D. Gogswell, 
 James G. Flanders, Burton Hanson, and Wm. H. Morris. Mr. J. R. 
 Brigham acted as treasurer for upwards of twenty years. 
 
 The present officers and members of the committees are as fol- 
 lows: B. K. Miller, president; General F. C. Winkler, vice-president; 
 Cornelius I. Haring, secretary; Otto R. Hansen, treasurer. Executive 
 committee: Chas. Quarles, Edward P. Vilas, and H. A. J. Upham. 
 The standing committees are as follows: Committee on membership, 
 L. W. Halsey, J. E. Friend, R. B. Mallory, J. F. Burke, and Herman 
 Fehr; committee on grievances, James G. Flanders, G. D. Van Dyke, 
 Frank M. Hoyt, Herbert Knight, J. F. LaBoule; committee on amend- 
 ment of law, J. V. Quarles, Joshua Stark, David S. Ordway, Geo. C. 
 Markham, and T. C. Benedict; committee on legal education, F. W. von 
 Cotzhausen, Geo. H. Noyes, W. W. Wight, J. R. Brigham, and W. C. 
 Williams (the two last named are recently deceased). 
 
CHAPTER XII. 
 
 THE FIRST CIRCUIT, AND ITS JUDGES AND LAWYERS. 
 
 As formed by the constitution, the first judicial circuit was com- 
 posed of the counties of Racine, Walworth, Rock and Green. It has 
 been changed from time to time and now consists of Walworth, 
 Racine and Kenosha counties. This circuit has been presided over by 
 more judges than any other in the state, having had not less than 
 twelve occupants of its bench. Many of its judges have been men of 
 the first rank in respect of both character and ability. Edward V. 
 Whiton, James R. Doolittle, William P. Lyon, Robert Harkness and 
 John B. Winslow are among those who have administered justice 
 there. The bar of the first circuit in early days was a strong one, 
 including Marshall M. Strong, John W. Gary, C. M. Baker, J. B. Cas- 
 soday, John R. Bennett, John T. Fish, the judges named, and others. 
 Some of these have passed to the other world; some have removed to 
 other circuits by choice or been transferred by legislation. Except for 
 the city of Racine the circuit would be a rural one; hence the 
 temptations and rewards which follow commercial and corporation 
 cases have drawn many able men from the bar of the first circuit. 
 
 THE BENCH. 
 
 Following are sketches of the judges of this circuit, except so far 
 as they are given elsewhere and excepting Judge Harkness, of whom 
 no information of a biographical character has been obtained, Edward 
 V. Whiton being sketched in chapter IV and William P. Lyon and 
 John B. Winslow in chapter VII. 
 
 WYMAN SPOONER. 
 
 This gentleman was for a brief time judge of the first circuit. He 
 
 was born at Hardwick, Worcester county, Massachusetts, in July, 1793; 
 
 344 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 345 
 
 removed to Vermont, and, being a printer, edited and published the 
 Vermont Journal at Windsor for several of the earlier years of his 
 manhood. He read law at Chelsea, Vermont. In 1835 he removed to 
 Tuscarawas county, Ohio, where he practiced law. In 1842 he came 
 to Wisconsin, first locating at Racine, and in 1843 removing to Elk- 
 horn, Walworth county, where he resided and practiced law many 
 years. During 1847, 1848 and 1849 he was judge of probate; he 
 served in the assembly in 1850, 1851, 1857 and 1861 — being speaker in 
 1857. In 1862, 1863 he was state senator and for a part of the time 
 president of the senate. From January 14, 1863, to January 3, 1870, 
 he was lieutenant governor. His judicial career was as judge of the 
 first circuit from June 15, 1853, to January i, 1854, he having been 
 appointed by Governor Farwell to fill the vacancy caused by the elec- 
 tion of Judge Whiton to the chief justiceship of the reorganized su- 
 preme court. Judge Spooner died near Geneva, Walworth county, 
 November 18, 1877. 
 
 It has been said of him that he was a lawyer of more than average 
 ability; that he possessed a clear, logical and discriminating mind; 
 that while he was an able advocate he was not endowed by gifts of 
 oratory, and that if he could not convince by argument he did not seek 
 to persuade by eloquence. He was honest and earnest in the dis- 
 charge of every public duty; was a good presiding officer, fair, im- 
 partial and courteous. He was polite in social intercourse and had a 
 nice sense of propriety and order on all occasions. He loved debate 
 and never asked or gave quarter, but never treasured animosity. 
 
 JAMES R. DOOLITTLE. 
 
 James Rood Doolittle was born January 3, 181 5, at Hampton, 
 Washington county. New York. His father, Reuben Doolittle, upon 
 emigrating to Genesee county, in western New York, became a farmer, 
 mill owner and merchant, in prosperous circumstances. His mother, 
 Sarah, nee Rood, was an estimable lady who devoted herself to do- 
 mestic duties and to the education of her children and instilling into 
 their minds the principles of honor and virtue. James R. was the 
 
346 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 eldest son in a family of four boys and two girls. After the usual 
 preliminary education he was sent to Geneva college, in western 
 New York, and early began to show that ability which distinguished 
 him in after years. Gifted with a retentive memory and a clear under- 
 standing, combined with a genius for hard work and diligent applica- 
 tion, he easily led his class and graduated with honors. 
 
 Having chosen the law as a profession, he studied its theory and 
 practice with Harvey Putman at Attica, New York, and with Isaac 
 Hills, of Rochester, New York, and was admitted to practice by the 
 supreme court of that state in 1837. It was not long before the young 
 lawyer was recognized as one of the coming men of his profession. 
 His thorough knowledge of the principles of the common law and his 
 facility in applying them, aided by an extensive and varied course of 
 reading, a pleasing and musical voice and an easy and fluent delivery, 
 marked him as one destined for certain and rapid preferment. 
 
 About this time he removed to Warsau, Wyoming county. New 
 York, where his ability was soon recognized and rewarded; and, al- 
 though a democrat, he was elected district attorney by a whig con- 
 stituency. Having discharged the duties of that important office with 
 satisfaction to the people and credit to himself, Mr. Doolittle, in 1851, 
 went to Racine, Wisconsin, and there practiced his profession, and in 
 a short time was ranked among the ablest lawyers of that state and 
 retained by Governor Farwell in cases involving the interests of the 
 commonwealth arid intricate questions of law. It is unnecessary to 
 say that his practice became large and lucrative and that experience 
 developed the legal ability already recognized. 
 
 In 1853 Mr. Doolittle was elected judge of the first judicial circuit 
 of Wisconsin. No higher or more pleasing tribute can be paid to a 
 lawyer than his elevation to the bench. As such. Judge Doolittle ac- 
 cepted it, and applied all his knowledge and experience to the dis- 
 charge of his duties. In this case the office sought the man, and, what 
 is more, sought the right man. For three years he discharged the 
 important duties of his trust with ability, simplicity and dignity. He 
 had the rare power of combining the "suaviter in modo, fortiter in re." 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 347 
 
 When he resigned, in 1856, he received the highest encomiums from 
 the press, the people, and the profession. No sooner had Judge Doo- 
 httle laid down one honor than another was given to him. In January, 
 1857, the legislature of Wisconsin elected him United States senator 
 and reelected him in 1863 to the same ofifice. The period during 
 which he was in the senate was the most momentous since the found- 
 ing of the republic and may be divided into three epochs: First — 
 Before the war, when the question was the extension of slavery. 
 Second — During the war, the period of secession. Third — After the 
 war, when the issue was reinstatement or reconstruction. Each of 
 these periods was fraught with danger to the republic and grave re- 
 sponsibilities rested on the representatives of the people. In these 
 crises the patriotism, ability and integrity of the young senator soon 
 became conspicuous. Grasping the situation with almost prophetic 
 intuition, he used the whole force of his great intelligence, the powerful 
 influence of his classic eloquence, and supplemented both with the un- 
 tarnished honor of his spotless character, in the endeavor to prevent the 
 threatened disruption. When the eflfort to secure peace with honor 
 failed and the tocsin of civil war smote the ear with its invitation to 
 deadly strife, he, like other patriotic citizens, accepted the challenge 
 and devoted himself unsparingly to the preservation of the Union. 
 Later, when the terrible struggle, involving the loss of hundreds of 
 thousands of human lives, was over, came the period of reinstatement, 
 when the great moral force and patriotic fire of Senator Doolittle was 
 stimulated to rouse the country to the duty of the hour. His eloquent 
 and forcible speeches of that time are historic evidence of his foresight 
 and statesmanship. As a member of the committee of thirteen, ap- 
 pointed by the senate to devise a plan to prevent disruption, he labored 
 for that object with all his power of mind and body. When war be- 
 came inevitable he used his whole strength to defeat the rebel arms. 
 When the war was over, he, as a representative of the people, coun- 
 seled moderation and reconstruction. Taking the constitution for his 
 guide and acting from sincere conviction he strove then, as through 
 his whole life, for the eternal principles of truth and justice. He was 
 
348 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 chairman of the joint committee appointed to inquire into the con- 
 dition of the Indians in Kansas, Colorado and New Mexico. The 
 published report of this committee is the most exhaustive and valuable 
 that has ever been compiled on the subject. 
 
 Soon after the accession of Andrew Johnson to the presidency 
 Senator Doolittle became a supporter of his policy, and thenceforward 
 acted in opposition to the republican party. In 1871 he was the 
 democratic candidate for governor of Wisconsin against C. C. Wash- 
 burn. 
 
 It would be trespassing on the domain of history to recount here 
 the calls to conventions written, the speeches delivered, the public 
 men with whom he has worked, and the poHtical issues he has orig- 
 inated or supported. It is only necessary to' add that Judge Doo- 
 little's life has been busy, honorable and useful; and, as expressed by a 
 friend of his, "Like a clear, limpid stream, wherein you can see the 
 form and color of the pebbles at the bottom, and through whose mean- 
 dering course no sediment appears." 
 
 Judge Doolittle was a man of fine physical development. Even at 
 the age of nearly four-score he was a man of powerful build, with pleas- 
 ing and expressive features, and a voice strong and sonorous. When 
 young he must have been trumpet-tongued. He had the "powers of 
 speech that stir men's blood," and retained that power for a longer 
 period than most men of his ability. Yet it was not alone the features, 
 the voice or the figure that challenged attention, Ijut there was a force 
 of character that impressed, an influence that impelled and a magnetism 
 that attracted. No man during the past fifty years has addressed 
 larger masses of people or has addressed on political subjects as many 
 people. He was a master of the art of rhetoric. His language was 
 clear, simple and graceful, and he led his auditors through a long 
 argumentative path, decked with classic allusions that, like flowers on 
 the border of a stream, seemed to be native there. 
 
 He was very happy in epigram. After Abraham Lincoln's second 
 nomination for the presidency, a cabal was formed in his state with the 
 hope of forcing him to retire. At a mass-meeting, where one of the 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 349 
 
 discontents had been the first speaker and had deHcately hinted at the 
 desirability of Mr. Lincohi's retirement, Judge Doolittle, who had lis- 
 tened with feelings more easily imagined than described, was called as 
 the second speaker. There was a vast audience' of probably twenty 
 thousand people, who listened to the previous speaker in ominous 
 silence. The Judge arose and in slow, clear, solemn tones, and with 
 his right hand raised to heaven, said: "Fellow-citizens: I believe- in 
 God Almighty, and, under him, I believe in Abraham Lincoln." Tlie 
 spell was broken and the vast audience cheered for fully half an hour. 
 No more was heard of the opposition to Mr. Lincoln. 
 
 After Judge Doolittle retired from the senate in 1869, though he 
 retained his homestead and citizenship in Wisconsin, he was engaged 
 in the practice of law in Chicago. His first partnership was with Mr. 
 Jesse O. Norton, under the name of Doolittle & Norton. After the 
 great fire of October 8 and 9, 1871, he formed a partnership with his 
 son, under the firm name of J. R. Doolittle & Son. In 1879 Mr. 
 Henry McKey was admitted as a partner in the business and the firm 
 name became Doolittle & McKey. After the death of Mr. James R. 
 Doolittle, Jr., which occurred in 1889, Mr. Edgar B. Tolman became a 
 member of the firm, and the firm name became Doolittle, McKey & 
 Tolman. Mr. McKey died in January, 1892, and John Mayo Palmer 
 became associated with Senator Doolittle and Mr. Tolman, under the 
 firm name of Doolittle, Palmer & Tolman. 
 
 Judge Doolittle sufifered one of the great afflictions of his lifetime 
 in August, 1889, when his son, James R., Jr., died. At the time of 
 his death he was a member of the law firm of which his distinguished 
 father was the head. He was an active member of the Chicago board 
 of education, and devoted himself unsparingly to the interests of the city 
 and suburban schools. He was a man of great ability as a lawyer, 
 highly accomplished as a scholar, and his kindly, gentle nature en- 
 deared him to all. 
 
 After a pure, honorable, useful life, actuated by unselfish motives, 
 prompted by patriotism and guided by truth and justice, Judge Doo- 
 little departed this life July 23, 1897, at the home of a married daughter 
 
35° HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 in Rhode Island. At the meeting of the state bar association in 
 February, 1898, Elbert O. Hand, J. V. Quarles and Joshua Eric 
 Dodge were appointed a committee to prepare and present a memorial 
 of the life and services of Judge Doolittle to the supreme court. That 
 duty was well performed March 21, 1898. The memorial was sub- 
 mitted by Mr. Hand in a very pleasing address, to which Judge Wins- 
 low, on behalf of the court, responded as follows: 
 
 "With the death of James R. Doolittle there passed from the 
 stage a remarkable figure and one of which Wisconsin may well feel 
 proud. 
 
 "Born in the early years of the century, he almost reached its 
 close with his mental powers unimpaired and a sturdy frame which 
 showed but slightly the signs of his advancing age. 
 
 "Nor was his life one of quietness and ease; it was full to the brim 
 of care, of labor and events. Early in hfe there came to him great and 
 deserved political triumphs which brought with them equally great 
 cares and responsibilities. He met these cares and responsibilities with 
 a fortitude born of lofty resolve and an unfailing devotion to his duty 
 as a man and a citizen. There came to him later bitter disappoint- 
 ments and crushing sorrows, and he met these with the same lofty 
 resolve. 
 
 "Fate placed him in the forefront of events at a momentous crisis 
 in the national history, when the destiny of the republic was trembUng 
 in the balance and the future seemed dark and doubtful. The test was 
 supreme, but it was fully and bravely met. Standing by the side of 
 the great Lincoln, as one of his trusty and trusted counselors, he rose 
 to the full stature of a statesman, able to cope with the greatest ques- 
 tions and fit to properly represent this great commonwealth. His 
 services to the state and nation and to the cause of free government 
 during the twelve years which he spent in the senate cannot be easily 
 overestimated. He left that high ofifice poor in purse, but rich in 
 the consciousness of having patriotically performed his duty and of 
 having bravely borne no small share in the great battle to preserve 
 human libertv and free institutions. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 351 
 
 "He was, without question, a lawyer of great learning and breadth 
 of mind; but the imperious call to the greater duties of a national 
 legislator took him from the bar for so long a period during the very 
 prime of life that his career as a lawyer was never rounded out to the 
 full, and hence it is that he will be remembered for his achieve- 
 ments as a statesman rather than on account of his greatness as a 
 lawyer. 
 
 "It was my good fortune to know him personally from my boy- 
 hood, and I can speak from a personal and intimate acquaintance of 
 his character as a friend and neighbor and a private citizen. He was a 
 Christian gentleman, with all which that name implies, and when I 
 have said this I have said, perhaps, all that is necessary. He carried 
 into private life and daily walk the same virtues, the same manly forti- 
 tude and the same resolve to do his duty, as he understood it, that he 
 exhibited in public station. 
 
 "James R. Doolittle was a good man, as well as a great man; he 
 honored his state and his state does well to honor him." 
 
 CHARLES M. BAKER. 
 
 Mr. Baker was born in New York city October 18, 1804. Soon 
 thereafter his father and the family removed to Addison county, Ver- 
 mont. In 1822 the subject of this sketch entered Middlebury college, 
 but was prevented from prosecuting his studies by reason of his health; 
 in 1823 he became an assistant teacher in a young ladies' school at 
 Philadelphia and remained there two years. In 1826 he entered a law 
 office in Troy, New York, and after three years of study there was ad- 
 mitted to the bar; in 1830 he formed a partnership with Henry W. 
 Strong, a brother of Marshall M. Strong, long a prominent lawyer of 
 Wisconsin, and removed to Seneca Falls, New York, where he prac- 
 ticed his profession until 1834, when his health made it necessary for 
 him to change his pursuit. He returned to Vermont and engaged in 
 the mercantile business. In 1838 he located at Geneva Lake, Wal- 
 worth county, Wisconsin; in 1839 he was appointed district attorney 
 of that county; he served as a member of the territorial council for the 
 
352 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 counties of Rock and Walworth for four years, beginning with 1842. 
 He represented Walworth county in the first constitutional conven- 
 tion and was chairman of the committee on the organization and func- 
 tions of the judiciary, and took an active part in all the proceedings 
 of that body. In 1849 the legislature appointed Mr. Baker the com- 
 missioner to superintend the publication of the^ revised statutes, in- 
 cluded in which was the preparation of the marginal notes and index. 
 In 1856 the governor appointed him circuit judge to fill the vacancy 
 caused by the resignation of Judge Doolittle; his service in that 
 capacity covered part of the months of March and April, 1856; not de- 
 siring to serve longer, he declined to be a candidate before the people. 
 During the civil war Mr. Baker served as judge advocate in the first 
 Wisconsin district. His death occurred at Geneva, February 5, 1872. 
 It has been said that "Mr. Baker was a profound lawyer, an able 
 advocate, and in all senses an ornament to a profession which his 
 learning adorned. He was a tireless reader and worker, ever ready in 
 legal cases entrusted to him, all points in which received the minutest 
 examination and most critical analysis. His habits were singularly 
 quiet, unobtrusive and studious. His reading extended far beyond the 
 requirements of his profession, covering the whole range of historic 
 and scientific inquiry. He was largely gifted in mental powers, and, 
 on a different field, would have achieved for statesmanship all that he 
 did for law. He was, moreover, thoroughly honest and conscientious, 
 an upright and worthy citizen, a kind and loved neighbor, and a valued 
 friend. In all the relations of life he bore an honorable part — above 
 suspicion as above reproach."* 
 
 JOHN M. KEEP. 
 
 At the election in April, 1856, John M. Keep was, without oppo- 
 sition, called to fill the remainder of the term which Judge Doolittle 
 had resigned one month previously and which during that period had 
 been filled by C. M. Baker. Nearly four years remained of the unex- 
 pired term, but after a service of a little more than two years failing 
 
 *"Fathers of Wisconsin," p. 40. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 353 
 
 health compelled him to send his resignation to the governor, to take 
 effect on the 17th of August, 1858. 
 
 John M. Keep, the second son of General Martin Keep,, was born 
 at Homer, Cortland county, N. Y., on the 26th of January, 18 13. He 
 was fitted for college at Cortland academy in Homer, and, in 1832, 
 entered Hamilton college, where he was graduated, in 1836, with high 
 collegiate honors. The same year he commenced his legal studies with 
 Augustus Donnelly, a distinguished lawyer at Homer, and completed 
 them with Horatio Seymour at Buffalo. He was duly admitted to the 
 bar and commenced practice at Westfield, Chautauqua county, New 
 York, which he continued until his removal to Wisconsin. In 1845 he 
 located at Beloit, where he continued to reside until his death. 
 
 Mr. Keep not only became engaged at once in a very large law 
 practice at Beloit, but he also took a very active part in every enter- 
 prise that promised to promote the growth of the place and enhance 
 the welfare of society. He was extensively engaged in the purchase 
 and sale of lands and erection of buildings, and took an important part 
 in the promotion of institutions of learning and the construction of 
 railroads, and in many of these enterprises was the animating spirit. 
 He was the founder of the city of Darlington, now the county seat of 
 La Fayette county, and was interested in the construction of the first 
 buildings that were erected there, and was the contractor for building 
 the southern half of the Mineral Point railroad. He was systematic in 
 the employment of his time and performed rapidly and well a vast 
 amount of varied labor. Moral courage, great energy, ready decision, 
 self-reliance, self-control, and an indomitable will were the chief qualities 
 of his natural greatness. He never exhibited vanity or egotism, and 
 was never heard to exalt or speak boastingly of himself. 
 
 As a lawyer he was well versed in his profession, ever faithful to his 
 clients, whose confidence and respect he never failed to command. 
 As a judge he was composed, patient, impartial, kind and courteous, 
 always easy to approach by every one; quick in his perceptions of 
 every case, he never hesitated to reverse his decisions when convinced 
 of error. 
 
354 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 For the last two years of his life Judge Keep's strength gradually 
 wasted away and death in its usual form never came near him, but 
 simply for lack of strength, on the 2d of March, 1861, he passively 
 ceased to breathe, and so passed away, leaving a record of great 
 private worth and public usefulness. 
 
 DAVID NOGGLE. 
 
 On the 27th of July, 1858, David Noggle was appointed by Gov- 
 ernor Randall judge of the first circuit to fill the vacancy caused by 
 the resignation of Judge Keep, which took effect on the 17th of Au- 
 gust, at which time Judge Noggle's fractional term commenced. At 
 the April election in 1859 the executive appointment was ratified by 
 the people, and the judge was simultaneously elected for the frac- 
 tional term, which expired January i, i860, and for the full term of six 
 years ending January i, 1866. He served the full period for which he 
 was elected, but was not again a candidate for re-election. 
 
 David Noggle was born in Franklin, Franklin county, Pennsyl- 
 vania, October 9, 1809. His father, Joseph Noggle, was of Dutch 
 descent, and his mother, whose maiden name was Mary Duncan, of 
 Scotch-Irish ancestry. His opportunities for education were limited 
 to the public schools, and even of these he could avail himself for only a 
 few weeks each winter. At the age of sixteen he removed with his 
 parents to Greenfield, Highland county, Ohio. At the age of nine- 
 teen he left home to find some remunerative employment, and for 
 four years was employed in a manufacturing estabhshment in Madi- 
 son, New York. He then returned to Ohio and .with his brothers 
 carried on his father's farm for about four years, during which time he 
 was married to Miss Anna M. Lewis. 
 
 In 1836 Mr. Noggle removed with his youiig wife to Winnebago 
 county, Illinois, making the journey with an ox team. Here he pur- 
 chased government land, which, under his industrious hand, soon be- 
 came a valuable farm. It had been the ambition of his life to be a 
 lawyer, which he never enjoyed the opportunity of gratifying. As he 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 355 
 
 had always relied upon himself in everything, at the comparatively ad- 
 vanced age of 27 (for a law student) he relied upon himself to ac- 
 quire a legal education. He carried Blackstone with him in his daily 
 toil, reading it while driving his ox team, and whenever he could find 
 time by day or night, and without having spent an hour in a law office 
 or received any assistance in his studies, he was, in 1838, after an exam- 
 ination by the supreme court of Illinois, admitted to the bar of that 
 state. 
 
 In 1839 he sold his farm in Illinois and removed to Beloit, Wiscon- 
 sin, where he opened a law office, and very soon attained a large 
 practice, not only in Wisconsin, but in Boone and Winnebago coun- 
 ties in Illinois. He devoted himself exclusively to his profession and 
 was highly successful. His lack of educational advantages and pro- 
 fessional training did not embarrass him; the strong power of his will 
 being adequate to overcome slight obstacles, and if his orthography 
 was not always correct it conformed to phonographic modes and al- 
 ways had the advantage of idem sonans. He was a powerful . and 
 successful advocate before a jury, and by large experience and hard 
 study became a very good lawyer. 
 
 In 1840 Mr. Noggle was appointed postmaster at Beloit and held 
 the office about five years. Rock county elected, by general ticket, 
 ten members of the first convention to form a state constitution, of 
 which Mr. Noggle was one. He was prominent as one of the leading 
 members of that body, his specialty being the subject of corporations, 
 which was assigned to him. He soon after transferred the scene of his 
 professional labors from Beloit to Janesville, where he continued to 
 maintain and increase his successful practice. In November, 1853, he 
 was elected as a representative in the assembly from the Janesville 
 district and served during the year 1854. Three years later he was 
 again elected for the same district, and served during the year 1857. 
 From the 17th of August, 1858, to the ist of January, 1866, his time 
 was devoted exclusively to the performance of his duty as judge. 
 
 After his retirement from the bench he spent a short time in Iowa 
 as attorney for the Milwaukee and St. Paul Railroad, and afterwards 
 
356 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 returned to Beloit, where he resided until 1869, when he was ap- 
 pointed chief justice of the territory of Idaho, a position which he 
 retained until 1874, when failing health compelled him to resign it. He 
 spent a few months in California for the benefit of his health, which 
 was, however, never restored. He returned to Wisconsin in 1875, 
 where he remained in retirement, the victim of a chronic disease 
 which aiifected his brain, and where he died on the i8th of July, 1878. 
 
 IRA C. PAINE. 
 
 Mr. Paine was born at Monkton, Vermont, in 1805. In 1847 he 
 came to Wisconsin and settled in Racine, where he lived until his 
 death, September 19, 1883. In his early days he had a good standing 
 at the Racine bar — then a very strong one — and always maintained a 
 high reputation for integrity. In 1875 he was appointed judge of the 
 circuit court to fill the vacancy caused by the resignation of Judge 
 Harkness, and in the election held after his appointment was the demo- 
 cratic candidate. He was unsuccessful, John T. Wentworth being 
 chosen. In 1878 he was an unsuccessful candidate for district attor- 
 ney of Racine county. During the later years of his life his practice 
 was not extensive, and the accumulation of his early labors was barely 
 suilficient for his need. Mr. Paine was an uncle of the gifted and 
 lamented Byron Paine. 
 
 JOHN T. WENTWORTH. 
 
 The ninth judge of the first circuit was John T. Wentworth. His 
 service in that capacity began in 1876 and continued until 1884. 
 
 Mr. Wentworth was born in Saratoga county, New York, March 
 30, 1820; was educated in Union college, and graduated in 1846; "read 
 law" with William A. Beach, of Saratoga Springs, and was admitted to 
 the bar in 1850. After practicing his profession there about two years 
 he moved to Chicago; after a stay of four years there he settled at 
 Geneva Lake, Walworth county, Wisconsin. In 1857 he was elected 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 357 
 
 district attorney of that county and was reelected in 1859. In 1869 he 
 was elected clerk of the circuit court, and while serving in that of- 
 fice was elected circuit judge to fill a vacancy; his service in that 
 office continued as stated. In 1877 Judge Wentworth changed his 
 place of residence to Racine, where he continued to reside. He has 
 served as state and United States court commissioner for some years, 
 and also held the office of justice of the peace after the expiration of 
 his term as circuit judge. Judge Wentworth died in February, 1893. 
 In October, 1852, Mr. Wentworth married Miss Frances McDon- 
 nell in Saratoga county. New York. His political affiliations were re- 
 publican, and his religion Presbyterian. He was also a Mason of long 
 standing, and held numerous offices in that order, including that of 
 grand master in 1865, having previously served as grand senior warden. 
 
 FRANK MARSON FISH. 
 
 Frank M. Fish, judge of the first judicial circuit, including the coun- 
 ties of Walworth, Racine and Kenosha, was born in McHenry county, 
 Illinois, July 4th, 1858. As he has already been an occupant of the 
 bench since May, 1891, he was caUed to assume the duties of this high 
 position when only thirty-three years of age — certainly a remarkable 
 honor bestowed upon a man of remarkable legal and judicial talents. 
 
 Judge Fish's parents were John T. and Julia King Fish, and at dif- 
 ferent periods of his boyhood days his home was at Sharon, Walworth 
 county, and at Burlington and Racine. He was educated in the public 
 schools of these places and at the academy of John G. McMynn, a cele- 
 brated teacher of the last named city. It was over much of the territory, 
 therefore, with which he had become familiar as a schoolboy that he was 
 in his mature manhood to preside as a learned and an honored judge. 
 After being firmly grounded in the preliminary and academic studies, 
 he took a course in the university of Wisconsin. He then began the 
 study of law in the office of his father, a member of the firm of Fish & 
 
 Lee. 
 
 Admitted to the bar in August, 1879, Judge Fish began practice in 
 23 
 
358 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 partnership with his father. The firm continued as John T. & F. M. 
 Fish until August of the following year, when the junior member re- 
 moved to Fargo, Dakota. He was at first associated with H. F. Miller, 
 and subsequently formed a partnership with G. H. Dickey at Valley 
 City, Dakota. Although his abilities were recognized so generally that 
 he was elected city attorney in 1882 and 1883, he decided to return to 
 his old home in Racine, evidently laying little stress upon the adage 
 regarding the withholding of honors from a man in his own country. 
 
 To his old home Judge Fish also bore a bride, Mary A..Stowe, of 
 Waterville, Minn., to whom he had been married on the 2d of January, 
 1884. Mrs. Fish is the daughter of Major Lewis Stowe, of that place, 
 and Hannah Babcock Stowe, and a descendant of the old and influential 
 Massachusetts families of Stowe and Ames. They have one child, 
 Franklin. 
 
 Judge Fish returned to Racine in the May succeeding his marriage 
 and at once became a member of the firm of Fish, Dodge & Fish. After 
 John T. Fish, the senior member, removed to Milwaukee, the style was 
 Dodge & Fish. His abilities as a lawyer, a public-spirited citizen and an 
 influential republican were soon conceded, and in the fall of 1887 he 
 was elected to the position of district attorney. He refused to become 
 a candidate for re-election, and Gov. Peck, in May, 1891, elevated him 
 to the circuit bench, as has been previously stated, to fill the vacancy 
 caused by the appointment of Judge Winslow to the supreme court of 
 the state. In April, 1892, he was elected over Judge James R. Doolittle 
 to fill the unexpired term to which he had been appointed. In April, 
 1895, such had been his high and clear record, he was re-elected without 
 opposition; his term expires in January, 1902. 
 
 As further indicative of Judge Fish's character it may be stated that 
 he is identified with the Masonic fraternity and Knights of Pythias; is 
 a member of the Episcopal church; is domestic and studious in his 
 tastes, and spends much of his time in his extensive library. Being yet 
 in the very prime of life, he has evidently a most alluring future before 
 him. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 359 
 
 THE BAR. 
 
 ALANSON H. BARNES. 
 
 Mr. Barnes was born in Turin, Lewis county, New York, April 
 15, 1 81 7. His early educational advantages were limited to such as 
 were common to the boys of his time. Before he entered upon the 
 study of the law in the office of David M. Bennett, in his native county, 
 he had become a married man. His admission to the bar occurred 
 about 1846. His success as a lawyer in his native state, says a news- 
 paper published there, was abundant and the practice was unremit- 
 tingly pursued until his removal to Wisconsin in 1856. In that year 
 Mr. Barnes became a resident of Delavan, Walworth county, and con- 
 tinued to reside there until his death, except when in the territory of 
 Dakota in the capacity of judge. He continued to practice law in 
 Walworth county, and also engaged in farming. March 24, 1873, he 
 was appointed an associate justice of the supreme court of Dakota, and 
 was reappointed April 23, 1877 — his service in that capacity extending 
 over about eight years. A writer in the Lowville (New York) Times 
 of May 29, 1890, says that the exacting duties, requiring prudent fore- 
 sight, nerve and firmness, performed by Judge Barnes while on the 
 bench in that territory are little known. The writer was with him 
 when he held the first United States district court ever held at Bis- 
 marck, Dakota, the court, grand jury and marshals being in depend- 
 ence for the effectiveness of their official action on Gen. Custer's force 
 at Fort Abraham Lincoln, across the Missouri, almost in sight of the 
 town. When the court and officials at Deadwood, in the Black Hills, 
 were overawed and paralyzed. Judge Barnes was ordered there to hold 
 court. After crossing several rivers with a four-horse stage, the judge 
 and three others, carrying with them Winchester rifles, reached the 
 town; he held court, tried and sentenced for twenty years a man 
 charged with murder, although a large number of the defendant's ad- 
 herents confronted the court armed with rifles during the trial. Judge 
 
360 HISTORY DF THE BENCH AND BAR OF WISCONSIN. 
 
 Barnes' written opinions are reported in the first two volumes of the 
 Dakota reports. 
 
 At the close of his service in Dakota Judge Barnes returned to 
 Delavan. His health was shattered so that he could not resume the 
 practice of the law; he was able, however, to be about his home until 
 within four days of his death, which occurred May 10, 1890. 
 
 His first wife, Miss Clarissa Hills, of his native county, whom he 
 married September 3, 1838, died December 10, 1856; he subsequently 
 married Miss Sarah J. Allen, sister of the late William C. Allen, of 
 Walworth county, who, with three children — Lucian A. Barnes, of 
 Fargo, North Dakota; Fannie, wife of Judge A. D. Thomas, of Fargo, 
 and D. B. Barnes, of Delavan, Wis., survive him. 
 
 CALEB P. BARNS. 
 
 Caleb P. Barns was born at Owego, Broome county. New York, 
 January 12, 1812; came to Wisconsin in 1842; located at Burlington, 
 Racine county, and practiced law there ten or twelve years, with con- 
 siderable success. He was a member of the assembly in 1850 and 1855. 
 He abandoned the law as a profession on account of his health and 
 entered into financial business, which he pursued with great success. 
 He died October 29, 1866. 
 
 JAMES CAVANAGH. 
 
 James Cavanagh is the son of James and Katherine (Cox) Cavanagh. 
 His parents were both natives of Ireland. His father, a farmer and nur- 
 seryman, came to Wisconsin about 1847, having previously resided for 
 a time in Canada. His mother first settled in Troy, New York, and 
 afterwards removed to Kenosha, Wis., where she met Mr. Cavanagh, 
 to whom she was married in 1850. 
 
 In Kenosha, Wisconsin, January 23, 1853, was born the subject of 
 this sketch, his boyhood days being not unlike many of those placed 
 in similar circumstances. He assisted his father and attended the pub- 
 lic schools; also entered the state normal school at Oshkosh, but later 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 361 
 
 decided that his future lines were not to run in the pedagogical field, 
 but in the province of the law. A fortunate circumstance in his early 
 life, preparatory to the adoption of his professional career, was his 
 entrance as a law student into the office of J. V. & C. Quarles, who 
 stood in the front rank of the bar of southeastern Wisconsin. 
 
 After passing a creditable examination, Mr. Cavanagh was ad- 
 mitted to the bar in November, 1876, and in March of the succeed- 
 ing year removed to Stevens Point, Wisconsin. A professional ex- 
 perience of one and a half years in that city, however, confirmed him 
 in a determination, which had been gradually growing, to return to 
 his old home. This he accordingly did and has since resided in 
 Kenosha, his legal business and reputation increasing rapidly and grow- 
 ing substantially. For one year he was a partner with Charles Quarles 
 and for six years with Peter Fisher, the style of the latter firm being 
 Cavanagh & Fisher. This partnership was dissolved in September, 
 1897, since which time Mr. Cavanagh has been an independent and 
 successful practitioner. 
 
 Mr. Cavanagh has held several important judicial and political po- 
 sitions and it is perhaps needless to say that he has filled them accept- 
 ably, bringing to the discharge of his public duties the same qualities 
 of industry, concentration and faithfulness which have marked the dis- 
 charge of his private and legal affairs. In behalf of the republicans he 
 has taken quite an active part in state campaigns, having served for 
 two terms as district attorney of Kenosha county (from January, 1881, 
 to January, 1885). He also is court commissioner of both the circuit 
 and the United States courts, and was city attorney of Kenosha for 
 several years. His executive abilities and his talents as an educator 
 were furthermore recognized by his selection as superintendent of 
 schools, which position he held from 1881 to 1889. 
 
 Mr. Cavanagh is a good business man, as well as a lawyer, being 
 interested in several financial and manufacturing enterprises. He is 
 both a stockholder and general counsel in the Northwestern Loan & 
 Trust Company and the Davy Burnt Clay Ballast Company. 
 
 Mr. Cavanagh's wife was formerly a Miss Nellie P. Parkinson, to 
 
362 HISTORY OF THE BENCH AND BAR OE WISCONSIN. 
 
 whom he was married at Oshkosh in April, 1877. They have two 
 children — Walter J. and Richard P. 
 
 HENRY ALLEN COOPER. 
 
 Henry Allen Cooper, member of Congress from the first district of 
 this state, is a native of Walworth county, Wissonsin, the son of a 
 physician. He attended the district school of the neighborhood, and 
 afterward entered the Northwestern University at Evanston, lUinois, 
 where he was graduated in 1873. Immediately after graduation frorii 
 the university he entered the Union College of Law, in Chicago, from 
 which he received his diploma in 1875. Mr. Cooper resided in Chicago 
 for four years after graduating from the college of law, and then took 
 up his residence in Burlington, Wisconsin, and began the practice of 
 law. In 1880 he was elected district attorney of Racine county, and 
 became a resident of Racine. He was reelected,without opposition, 
 in 1882, and again in 1884. In the latter year he was chosen a dele- 
 gate to the republican national convention at Chicago, and in 1886 
 was elected to the state senate. In 1892 the republicans of the first 
 district nominated and elected him to Congress. So faithful and satis- 
 factory had been his record in his first term that he was renominated, 
 without opposition, in 1894, and elected to the Fifty-fourth Congress 
 by a majority of 5,195 over his three opponents. In 1896 he was 
 again renominated, without opposition, and was elected by a plurality 
 of 13,512 over his democratic competitor, and by a majority over all 
 the other candidates of 3,428. In August, 1898, he was in like manner 
 renominated for Congress. 
 
 Mr. Cooper resides in Racine and is a member of the law firm of 
 Cooper, Simmons, Nelson & Walker, of that city. 
 
 EXPERIENCE ESTABROOK. 
 
 Experience Estabrook was born in Lebanon, Grafton county. New 
 Hampshire, April 30, 1813; was educated in the common schools and 
 by private tutors; he resided for a short time at Alden, Erie county. 
 New York; came to Wisconsin and settled at Geneva, Walworth county. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 363 
 
 in July, 1840; served as district attorney and school commissioner be- 
 fore 1847, ""1 which year he was chosen a member of the second con- 
 stitutional convention; in that body he was chairman of the committee 
 on education and school funds. "While he made but few speeches 
 in that convention, they were uniformly upon the most important 
 subjects pending, and always terse, logical and to the point. . . . 
 In all the discussions reported, his views and his acts were conserva- 
 tive — never extreme— and his reasoning was marked by a solidity and 
 cogency that time has long since demonstrated to be correct. Pos- 
 sessing abilities and legal acquirements of a high order, and a noble 
 and patriotic purpose to aid in the erection of a state worthy of its 
 people, his work has left a marked and enduring impress on Wiscon- 
 sin, where his name should ever be held in high honor." In 185 1 Mr. 
 Estabrook was a member of the assembly from Walworth county, 
 and was attorney general from January, 1852, until January, 1854. 
 
 About the close of his term as attorney general Mr. Estabrook was 
 appointed United States district attorney for the territory of Nebraska, 
 and settled in Omaha in January, 1855; he served in that capacity over 
 four years, as a member of Congress one term, a district attorney for 
 Douglas county, and a member of the constitutional convention of 1871. 
 He revised the laws of the territory in 1866 and produced an approved 
 form book. His death occurred at Omaha, March 26, 1894. 
 
 The Omaha bar adopted eulogistic resolutions commemorative of 
 Mr. Estabrook, and glowing tributes were paid his memory by Judges 
 E. Wakeley and James M. Woolworth. A. C. Baldwin made some in- 
 teresting remarks, mainly with reference to a case in which his client, 
 charged with an assault with intent to kill, was prosecuted by the 
 subject of this sketch. Mr. Baldwin said that "after listening to his 
 argument to the jury I could but congratulate my client that the 
 verdict of the jury was not murder in the first degree, although the 
 woman was not quite dead from the wound inflicted nor was my client 
 indicted for a crime other than an assault with intent to murder. He 
 created a lasting impression that the defendant was not entitled to life 
 or liberty." 
 
364 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Among Mr. Estabrook's Wisconsin experiences it is recorded that 
 he attended the first term of the first court held in Elkhorn, Wal- 
 worth county, and brought the first case in bankruptcy; that he owned 
 a dog, a near relative to Judge Irvin's "York," which insured him much 
 success in practice in the judge's court; that he once examined Judge 
 William P. Lyon concerning his qualifications to teach school, and that 
 he put the first boat, the schooner-rigged "Ariel," of five tons, on 
 Geneva lake. 
 
 A story is told concerning Mr. Estabrook and the late Chief Jus- 
 tice Ryan which may be worthy of preservation. It relates to the time 
 the former was attorney general, and is to the effect that he was a 
 good deal of a sporting character and fond of horses and dogs; that 
 he was not considered a very great success as a lawyer; was on the 
 go a good deal, moving from point to point restlessly, pursuing some- 
 thing, no one hardly knew what. During his term he came into con- 
 tact with Ryan before the supreme court; the latter lost patience with 
 Estabrook, and during the argument stigmatized him as the "vaga- 
 bond attorney general." The court felt its dignity affronted by the use 
 of such language and cited Ryan to show cause why he should not be 
 punished for contempt. His defense was that he used the word "vaga- 
 bond" in the sense given by Webster's dictionary — that the definition 
 of the word was to wander, to move about, to strut, etc. 
 
 "Reduced, like Hannibal, to seek relief 
 
 From court to court, and wander up and down, 
 
 A vagabond in Africa." 
 
 Notwithstanding the argument, the court imposed a fine of twenty- 
 five dollars, which was promptly paid. It is said that on the announce- 
 ment of the court's ruling Mr. Ryan remarked to some of his profes- 
 sional brethren that the imposition of such a fine upon him for ex- 
 pressing his opinion of the attorney general led him to wonder what 
 the penalty would be if he expressed to the court his opinion of it. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 365 
 
 ENOCH W. EVANS. 
 
 Enoch Webster Evans was born at Fryeburg, Maine, on the i6th 
 of July, 181 7. He pursued a thorough preparatory course of study 
 at the Fryeburg academy in his native village, and entered Waterville 
 college, where he was a classmate of B. F. Butler; remained there two 
 years and then went to Dartmouth college, where he was graduated 
 in 1838. He then studied law at Hopkinton, Merrimack county, New- 
 Hampshire, in the office of Judge Chase, for a period of two years, at 
 the same time teaching school there. He went to Maryland, but, not 
 being pleased with prospects there, came west in 1840, and entered 
 the law office of Giles Spring in the city of Chicago, where, in the 
 same year, he was admitted to the bar. He soon located at "Dixon's 
 Ferry," on Rock river, now the county seat of Lee county, Illinois, 
 where he commenced practice and continued it there for many years. 
 Afterwards he changed his location and removed to Kenosha, Wis- 
 consin, where he entered upon a highly successful practice, which he 
 continued until 1858, when he removed to Chicago. In 1859 he re- 
 moved his family to Chicago, and gave up entirely his professional 
 business in Wisconsin and continued to reside and actively practice 
 his profession at Chicago until the time of his death, September 2, 1879. 
 
 Mr. Evans was a finished scholar, a thorough and scientific lawyer, 
 a man of genius and superior natural talents, of excellent forensic 
 faculties, a genial, courteous and polite gentleman, and sustained, as he 
 well deserved, a high rank in the profession. 
 
 DAVID H. FLETT. 
 
 David H. Flett, judge of the municipal court of Racine county, was 
 born in Scotland, September 12, 1846. He came to the United States 
 and Wisconsin with his parents at an early age and was educated 
 in the district schools of Kenosha county, the high school at Racine 
 and Oberlin college at Oberlin, Ohio. He was admitted to practice 
 in 1880 and has since that time conducted a general law business at 
 
366 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Racine. During his professional career he was at one time a member 
 of the firm of Flett & Wentworth, and for fifteen years junior partner 
 in the firm of Hand & Flett. 
 
 CHRISTOPHER C. GITTINGS. 
 
 The firm of Palmer & Gittings conducts a general law practice at 
 Racine, Wisconsin, where they have been associated together since 
 1891. Walter C. Palimer, senior member of the firm, was born at 
 Waterford, Racine county, Wisconsin; was educated at the schools at 
 Waterford, the state university and law school; was admitted to prac- 
 tice in 1881, and for ten years conducted a business by himself in Racine 
 county. 
 
 The junior member of the firm, Mr. Christopher C> Gittings, was 
 born in the town of Caledonia, Racine county, and received his educa- 
 tion at Racine academy and college. He was admitted to the practice 
 -of law in 1889, from which time until 1891 he was associated with 
 Percival S. Fuller, at Racine, and then formed his present partner- 
 ship with Mr. Palmer. 
 
 The firm of Palmer & Gittings does a general law business, but 
 gives special attention to commercial, corporation and probate matters. 
 Mr. Gittings was city attorney of Racine for five successive terms. 
 
 ELBERT OSBORNE HAND. 
 
 Elbert O. Hand, late judge of Racine county, is one of the most 
 respected members of the Wisconsin bench and bar, painstaking and 
 conscientious and successful, possessing the confidence of all with whom 
 he has had professional dealings for nearly forty years. The son of John 
 S. and Imogene (Cowles) Hand, he was born in New Lebanon, Colum- 
 bia county, N. Y., November 29, 1830. His father was by trade a ma- 
 chinist, and from all accounts he was not only a good one, but a man of 
 more than average education and influence. The mother was a woman 
 of strong character and when, in 1841, the family removed to the al- 
 most unsettled district of Wisconsin, in which is now the village of 
 Lyons, she brought to bear all those qualities of steadfastness, economy 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 367 
 
 and practical bravery which have ever done so much to uphold the 
 pioneers of all countries through their hardships and trials. 
 
 In Wisconsin Mr. Hand took up land, and his son, Elbert, as the 
 eldest of the family, assisted his father on the farm, gaining- thereby 
 the strength of constitution which was to hold him in such good stead 
 in the arduous duties of after life. His constitution was further hard- 
 ened, also, by his California experience, for during the gold excitement 
 of i848-'49 he had a severe attack of the fever and, although only a boy 
 of eighteen, started from home with the van of emigration, and with 
 an ox team journeyed across the plains to Placerville. He was six 
 months on the way and the journey and subsequent experiences formed 
 an epoch in his life which he could ill afford to have omitted. At this 
 point, one of the first of the discovery, he commenced to prospect and 
 later to mine. He was fairly successful for the three years of his resi- 
 dence in California, but,. coming to the conclusion that his chances for an 
 honorable and substantial future were better in more cultured com- 
 munities, he returned east to complete his education. 
 
 After taking a partial collegiate course at' Leoni, Michigan, Mr. 
 Hand entered the sophomore class at the University of Wisconsin, and 
 was graduated from that institution in 1859. From the very nature of 
 his experiences his education had been somewhat interrupted, but hav- 
 ing once decided upon his course of action and being in a position to 
 follow it, he made rapid progress. As he had already determined upon 
 the law as his profession and made considerable progress in his studies, 
 he now applied his mind vigorously to its mastery, so that by i860 he 
 was graduated from the Albany law school. As Judge Lyon, who then 
 resided at Racine, was an old family friend, he was induced by him to 
 at once make that city his home. The first year of his residence there 
 was passed as a clerk for the firm of Lyon & Adams, but during the 
 second year he was admitted to membership in the firm, its style be- 
 coming Lyon, Adams & Hand. Judge Lyon was called to military ser- 
 vice during the war, and while he was absent Mr. Hand was nominal 
 head of the firm. Judge Lyon was elected circuit judge while in the 
 army, and upon his ascension to the bench the firm became Adams & 
 
368 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Hand. It thus continued until 1868, when Mr. Adams left the state 
 and retired from the bench of the county court, to which he had some 
 time before been elected. Upon Judge Adams' removal from Wiscon- 
 sin in the year named, Mr. Hand was appointed by Governor Fairchild 
 Judge Adams' successor. For thirteen years he held the position and 
 served his constituents so creditably that even after that period he was 
 pressed to continue upon the bench. Declining a re-election, however, 
 in 1881 he formed a partnership with D. H. Flett, which continued until 
 the spring of 1897. At this time Mr. Flett was elected judge of the 
 municipal court. In the meantime, in 1896, Judge Hand's son, E. B. 
 Hand, had been admitted into the firm, so that, with the retirement of 
 Judge Flett, it became known under the present name of E. O. & E. B. 
 Hand. Its practice is of a general nature, and its reliability is unques- 
 tioned. Judge Hand himself being recognized as an able, safe and suc- 
 cessful counselor, whose policy has been to discourage litigation, usu- 
 ally advising settlements or compromises out of court. 
 
 From 1888 to 1890 Judge Hand was district attorney of Racine 
 county. He has been identified with the educational interests of the 
 city, having served for several years as president of the school board. 
 That he has never been a politician or a partisan is quite evident from 
 his "voting record," which is as follows: \\^hile in California (1852) he 
 voted for Winfield Scott; in 1856 for John C. Fremont; in 1864 for 
 Abraham Lincoln; in 1868 for U. S. Grant; in 1872 for Horace Gree- 
 ley: in 1876 for Samuel J. Tilden; in 1880 for Hancock; in 1884, 1888 
 and 1892 for Grover Cleveland, and in 1896 for McKinley. 
 
 Judge Hand has confined his activities quite strictly to his pro- 
 fession, the notable exception to the rule being the controlling interest 
 which he has secured in the Winship manufacturing company, of which 
 he is president and with which he has been identified since 1881. 
 
 For thirty-five years he has been a stanch member of the Presby- 
 terian church, having been a trustee and elder for over thirty years of 
 this period. For several years he has also been superintendent of the 
 Sunday school and there are few persons in the denomination who are 
 more generally known than Judge Hand. The pleasures of his domes- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 369 
 
 tic life go hand in hand with his church work and when both are coupled 
 with his intelligent love of books, one may gain an idea of his high 
 character outside of his profession. 
 
 Judge Hand was married September 5, 1861, to Margaret S. Budd, 
 of Chatham, Columbia county, New York. Their children are Mary 
 Elizabeth, now Mrs. John D. Rowland of Milwaukee; Imogene F., now 
 Mrs. R. Carpenter of Racine; Elbert B., in partnership with his father; 
 Jessie L. and Edith M. Hand, excepting the youngest, all graduates of 
 the University of Wisconsin. 
 
 JOHN M. HAYES. 
 
 Mr. Hayes was born at Berwick, York county, Maine, August 30, 
 1838; graduated from Dartmouth college in i860; studied law at Lock- 
 port and at the Albany law school, being graduated in 1862; practiced 
 in Chicago from 1862' to 1868; in Lockport, New York, from 1868 to 
 1870; in Chicago again from 1873 to 1876; in the latter year he re- 
 moved to Kenosha, and was, for a time, a member of the firm of Van 
 Buskirk & Hayes, and after its dissolution practiced alone. 
 
 ORSON S. HEAD. 
 
 Orson S. Head was born at Paris, Oneida county. New York, Oc- 
 tober 9th, 1817. He spent his earlier years in agricultural pursuits, 
 but he was still enabled to acquire a good academic education. He 
 studied law at Utica under Horatio Seymour. In 1841 he removed 
 to Wisconsin and settled at Kenosha, and was soon after admitted to 
 the bar and commenced the practice of law, which he continued to 
 pursue at Kenosha as long as he lived. Upon his academic education 
 he built up a thorough knowledge of the fvmdamental principles of 
 jurisprudence, and took rank as one of the ablest lawyers in the circuit 
 in which he practiced. He was several times chosen prosecuting at- 
 torney for Kenosha county, and discharged the duties of the office to 
 the entire satisfaction of the people, as he always did his professional 
 duties in civil practice to the satisfaction of his clients. Mr. Head 
 
370 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 had but little taste or ambition for political life; he, however, con- 
 sented to serve one year in the state senate in 1851 to fill a vacancy. 
 He died at Kenosha, February 19, 1B75. 
 
 CHARLES H. LEE. 
 
 Charles H. Lee is a native of Racine. His father, Alanson H. Lee, 
 a pioneer merchant of Racine, where he located in 1840, was a native of 
 Connecticut, where his family had resided for nearly two centuries. 
 He was a descendant of Elder Brewster of the Mayflower. The mother 
 of Charles H. Lee, Permelia A. Gaylord, was a native of New York 
 state. 
 
 The Racine high school, under the guidance of Principal McMynn, 
 was in the early days of Wisconsin the leading educational institution 
 of the state. There Charles H. Lee obtained his education. Deter- 
 mined to make the law his profession, he began its study in the office of 
 C. W. Bennett, then of Racine, now of Salt Lake, and later in the 
 office of Fuller & Dyer at Racine. After graduation from the Albany 
 (New York) law school and admission to the bar, he returned to Racine 
 and for two years acted as managing clerk for Fuller & Dyer. From 
 1871 to 1878 he was associated with John T. Fish. He then accepted 
 the position of general counsel with the J. L Case Threshing Machine 
 Company. In 1887 he became a director and treasurer of the com- 
 pany. This connection continued until January, 1897, when Mr. Lee 
 retired to enable himself to enjoy the fruits of his labor, by taking life 
 easier. However, in 1897, he made a trip abroad for the company, 
 visiting Russia, Roumania, Austro Hungary and Belgium. The object 
 of this trip was to examine into the possibilities for the use of American 
 threshers in those countries. 
 
 Politically, Mr. Lee is 'a democrat, but believing the democratic 
 platform of 1896 antagonistic to the welfare of his country, he voted for 
 McKinley. While in no sense a politician, he was elected district at- 
 torney in 1872 on the republican ticket. He was brought up as an 
 Episcopalian, but is now an attendant of the Presbyterian church and 
 is a member of the board of trustees. He was married in 1881 to 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 371 
 
 Emily A., (laughter of James H. Kelley, of Racine. They have no 
 children. 
 
 Mr. Lee is active in charitable enterprises, and in all movements 
 formulated for the benefit of Racine and its citizens he takes a leading 
 part. As a member of the board of trustees and treasurer of the Taylor 
 orphan asylum, he has displayed the same high order of business ability 
 he has shown in connection with the corporations with which he has 
 from time to time become associated. He is president of the Racine 
 public library and has labored zealously for its improvement. For the 
 past ten years he has been trustee of the Baker estate, amounting to over 
 a million dollars, and is also president of the Chicago Rubber Clothing 
 Company, of Racine. 
 
 FREDERICK S. LOVELL. 
 
 Frederick S. Lovell was born at Rockingham, Windham county, 
 Vermont, November i, 1815. He received early and good educational 
 advantages, and was graduated from Geneva college in August, 1835. 
 He soon after entered upon the study of law at Charleston, Sullivan 
 county. New Hampshire, in the office of Henry Hubbard, once gov- 
 ernor of and senator for that state. He afterwards pursued his law 
 studies with Judge S. K. Strong, in the state of New York. On being 
 admitted to the bar he directed his steps to the then new territory of 
 Wisconsin, and in September, 1837, settled at Kenosha — then called 
 Southport — which continued to be his home for the remainder of his 
 life. He at once opened a law office and entered upon the practice of 
 his profession, which he continued to pursue uninterruptedly until he 
 entered the army to aid in suppressing the rebellion. 
 
 Col. Lovell was possessed of fine native talents and brilliant genius, 
 which, superadded to his excellent scholastic education and his thor- 
 ough professional training, gave him high rank among the galaxy of 
 able lawyers which graced the bar of Wisconsin during its existence as 
 a territory. 
 
 He was not permitted to confine his abilities exclusively to the prac- 
 tice of his profession, Ixit was eagerly summoned by his fellow-citizens 
 
372 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 to the legislative halls. In 1846 he was elected a member of the council 
 in the territorial legislature and continued to perform the duties of that 
 office until the organization of the state government. He was a mem- 
 ber of the convention which framed the first constitution. This con- 
 vention consisted of one hundred and twenty-four members, of which 
 only six were elected to the second convention held the next year. 
 Colonel Lovell was one of these six. In 1856 he was elected a member 
 of the assembly from the Kenosha district, and reelected the next year, 
 serving during the years 1857 and 1858. At the last session he was 
 speaker and discharged the duties of that office in an able and dignified 
 manner. 
 
 In 1857 he was appointed, in connection with David Taylor and 
 S. J. Todd, as a commission to revise the statutes of the state. 
 The result was the volume of revised statutes of 1858, which continued 
 in force, except as amended or repealed, until the revision of 1878. The 
 superintendency of the printing of this volume was entrusted to Col. 
 Lovell. 
 
 In August, 1862, he was appointed lieutenant-colonel of the thirty- 
 third regiment, Wisconsin infantry — J. B. Moore, colonel. The colonel 
 being placed in command of a brigade, the command of the regiment 
 devolved upon the lieutenant colonel soon after it entered upon active 
 service. In January, 1865, Col. Lovell was transferred to the forty- 
 sixth regiment, of which he was appointed colonel, which was mustered 
 out September 27, 1865. After his regiment was discharged he re- 
 turned to his home in Kenosha, where he remained in quiet and repose 
 until his death, May 14th, 1878. 
 
 JAY FORREST LYON. 
 
 Jay Forrest Lyon is the junior member of the firm of J. F. Lyon & 
 Son, practicing attorneys at Elkhorn, Walworth county, Wisconsin. 
 He was born at Darien, Wisconsin, November 8th, A. D. 1862, and 
 was educated in the schools of Walworth county. He was employed 
 as stenographer in the general office of the Chicago, St. Paul, ^linne- 
 apolis & Omaha railroad at St. Paul, Minn., from 1882 until 1886. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 373 
 
 He graduated from the Boston university school of law, class of 
 1888, summa cumlaude; was admitted to practice at the state bar ex- 
 amination in 1888, and at once formed a partnership with his father, 
 J. F. Lyon, with whom he is still in practice. 
 
 Mr. Lyon is a republican in politics and has held village and city 
 offices. 
 
 He was married June 30th, 1886, at St. Paul, Minn., to Carrie A. 
 Bayard of that city, and is a member of the Baptist church. 
 
 JOSEPH F. LYON. 
 
 The subject of this sketch, Joseph F. Lyon, of Elkhorn, Walworth 
 county, Wisconsin, was born in Harford, Susquehanna county, Pennsyl- 
 vania, April 23d, 1825, and is one of fifteen children. His father, Isaac 
 Lyon, was born in Fitzwilliam, New Hampshire, July 4th, 1779; was 
 the son of David Lyon, an Englishman. Isaac Lyon moved to Har- 
 ford in 1822, where he settled and was engaged in. the milling business 
 until 1856, when he moved to Darien, Wisconsin, remaining there until 
 1863, when another move was made to Independence, Iowa, where he 
 died five years later. His mother, Sally (Blodgett) Lyon, was born in 
 Deerfield, Mass., August 4th, 1800, and died at Independence, Iowa, in 
 1874. 
 
 Joseph F. Lyon was educated in the common schools of his native 
 town and later attended Franklin academy in the same town, where he 
 was a schoolmate of Galusha A. Grow, present congressman at large 
 from Pennsylvania. When nineteen years of age Mr. Lyon emigrated to 
 the state of Illinois, walking the first one hundred miles, and coming 
 around the lakes on a sail vessel, landed in Chicago in September, 1844. 
 He then walked to Little Fort, now Waukegan, 111., and soon after com- 
 menced clerking for his cousin, I. R. Lyon, who was engaged in the 
 mercantile business at that place. He soon formed the acquaintance 
 of Henry W. Blodgett, a distant relative of his, who settled there the 
 same year, and who is now a retired United States district judge. He 
 
 spent his leisure time in Judge Blodgett's office reading law. In 1850 
 24 
 
374 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 he removed to Woodstock, 111., where he was engaged in the mercantile 
 business for about a year. In 185 1 he sold out his business in Wood- 
 stock, went to New York city, where he was in business in a whole- 
 sale clothing house for three years, spending six months of each year 
 traveling for the house in northern Illinois and Wisconsin. 
 
 In 1859 he went overland to California with an ox team, arriving 
 at Carson City, Nevada, about the time of the discovery of the Corn- 
 stock mine. He was oflered three hundred feet (one share) of the mine 
 for a yoke of oxen. He returned from California in the fall of i860, 
 in time to take part in the first Lincoln campaign; was admitted to the 
 bar of the circuit court for Walworth county, Wisconsin, in 1865. 
 
 On his return from California he settled in Darien, Wisconsin, 
 where he remained until 1875, when, upon being appointed clerk of the 
 circuit court for Walworth county, he removed to Elkhorn. At the 
 expiration of his term as clerk he opened- a law ofifice in Elkhorn and 
 practiced alone until 1888, when his son. Jay F. Lyon, of whom a 
 sketch appears elsewhere in this volume, went into partnership with 
 him. The firm has since done quite an extensive law business. 
 
 As to his political views, he was a whig as long as that organiza- 
 tion existed. As soon as the republican party was organized he be- 
 came a member thereof, and has continued to adhere to the doctrines 
 of that party up to the present time. He was chairman of the board 
 of supervisors of the town of Darien ten years and of the county board 
 of Walworth county for three years; was a member of the general as- 
 sembly for the year 1868; has been justice of the peace for thirty years 
 or more, and court commissioner for Walworth county since 1885. 
 
 Mr. Lyon was married at Beloit, Wisconsin, July 26th, 1854, to 
 Arimathea Jones, of Darien, Wisconsin, by whom he had three chil- 
 dren— Arie May, Vernette M., and Jay F. Mrs. Lyon died in 1872. 
 
 December loth, 1873, Mr. Lyon was again married, at Springfield^ 
 Wisconsin, to Miss Amelia L. Dodge, who is the second cousin of 
 Judge Blodgett. Mr. Lyon is domestic in his tastes and of quiet tem- 
 perament. In his religious views he is a Congregationalist, but not 
 very active in his religious duties. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 375 
 
 He joined the Masons in 185 1; has taken nine degrees. He was 
 senior warden in 1855 and master in 1862. 
 
 PETER BERING NELSON. 
 
 Mr. Nelson was born in Schleswig, Germany, on the i6th of April, 
 1869, and is of Danish origin. His mother died when he was a year 
 old and soon afterward his father, H- P- Nelson, a carpenter by trade, 
 came direct to Wisconsin. In the public schools of Racine the boy 
 obtained his primary education and by dint of persistent application 
 advanced to the point where he was qualified to enter the law school 
 of the University of Wisconsin. 
 
 Circumstances rendered it impossible for Mr. Nelson to enjoy more 
 than one year's instruction at the university law department. He 
 prosecuted his studies, however, under Congressman H. A. Cooper, of 
 Racine, and in 1891 passed the required examination for entrance to 
 the profession before the state board of examiners sitting at Milwaukee. 
 He at once opened an ofifice in Racine, associating himself with Mr. 
 Cooper, his former preceptor, and as a member of the firm now known 
 as Cooper, Simmons, Nelson & Walker, he has acquitted himself with 
 honor in many cases of local importance. 
 
 Mr. Nelson was also elected district attorney by the republicans in 
 1894 and reelected in 1896. Since 1890 he has held the position of 
 Danish vice consul for the state of Wisconsin. As director in the 
 Commercial savings bank and president of the Racine Refrigerator 
 company his marked aptitude is brought into play. He is, further, 
 identified with the Masons, the Knights of Pythias and the Elks. 
 
 HORACE T. SANDERS. 
 
 Horace T. Sanders was born in Sheldon, Genesee county. New 
 York, May i, 1820; he received a collegiate education and a thorough 
 training preparatory to becoming a lawyer. He entered upon the 
 practice of the law in Racine, Wisconsin, May, 1842. He was prosecut- 
 ing attorney for many years in Racine county; was elected, in 1847, a 
 
376 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 member of the second constitutional convention, and served in that 
 body as a member of the committee on general provisions. He took 
 a prominent part in the general debates and proceedings of the body 
 and rendered very useful and valuable services. In 1853 he was a 
 member of the assembly and occupied the position of chairman of the 
 managers on behalf of that body on the trial of Judge Hubbell before 
 the senate as a court of impeachment. He discharged the responsible 
 duties of that position with great ability. 
 
 In 1862 he became colonel of the nineteenth Wisconsin infantry 
 and was assigned to the eighteenth army corps; he acted as provost 
 judge of Norfolk, Virginia, and attained the rank of brigadier gen- 
 eral by brevet. His military service continued until the war closed, 
 after which his health gradually failed; his death occurred October 6, 
 1865. 
 
 "He was a man of genius, great brilliancy of intellect, and fine 
 analytical powers, all of which, combined with a finished education, 
 gave him, justly, the character which he sustained, of being in the fore- 
 most rank of the profession in the state." 
 
 JAMES SIMMONS. 
 
 The labors of Wisconsin lawyers have been much lightened by the 
 skill and patient industry of James Simmons, of Lake Geneva, Wis- 
 consin. From time to time since 1868 he has prepared and caused to 
 be published digests of the reports of the supreme court of this state. 
 In the main his work has been satisfactory. In so far as it has not 
 been entirely so, the fault is less his than it is chargeable to the condi- 
 tions under which he has wrought. The necessity of furnishing books 
 as cheaply as possible has resulted in the publication of more supple- 
 ments than would be desirable under other circumstances, and pre- 
 vented the consolidation and revision of volumes as frequently as con- 
 venience has demanded. Mr. Simmons has done like work for other 
 reports, as is mentioned in another chapter. He has also prepared 
 articles for a series of books much in use a few years ago' — ^Wait's 
 Actions and Defenses — to the extent of about half a volume. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 377; 
 
 Mr. Simmons' father, John, was a native of Ashford, Connecticut, 
 a graduate of Rhode Island college (now Brown university) and a law- 
 yer by profession. His mother was Laura Bell. Both were descend- 
 ants of revolutionary soldiers. He was born at Middlebury, Vermont, 
 and was graduated at the age of twenty from Middlebury college. 
 Soon afterward he began the study of law; but before completing it re- 
 moved to the west, reaching Geneva, Wisconsin, in 1843, v^^here he 
 qualified for admission to the bar under the direction of C. M. Baker; 
 he was admitted in October, 1843. He practiced at Geneva for a 
 time, but failing health compelled him to seek other employment, and 
 he engaged in engineering and clerking. In 1848-9 he served as clerk 
 for the revisers of the statutes of 1849. After entering upon the prac- 
 tice of his profession a second time he was obliged to again abandon it; 
 for six or seven years he was engaged in merchandising. In 1857 he 
 became a partner of John T. Wentworth; in i860 was elected clerk of 
 the Walworth county circuit court, a position he held for ten years. 
 
 In 1870 Mr. Simmons caused to be published a history of Geneva, 
 written by him. This he has recently revised, and it now appears under 
 the title "Annals of Lake Geneva." 
 
 In 1848 he was married to Miss Katherine Colter, with whom he 
 lived until her death in 1895. Surviving her are three children — John 
 B., a lawyer of Racine; James, a professor in Iowa college, and Mary E., 
 a professor in the Cedar Falls normal school. 
 
 JOHN B. SIMMONS. 
 
 John B. Simmons, member of the well known firm of Cooper, Sim- 
 mons, Nelson & Walker, is a native of McHenry county, Illinois, being 
 born on the 26th of October, 1851. His parents, James and Catherine 
 (McCotter) Simmons, were natives of Vermont. The elder Simmons 
 is perhaps better known as an author than as a practicing attorney. He 
 compiled several volumes of New York Digest since coming to Wis- 
 consin in 1844. At that time he located at Lake Geneva and in 1849 
 was clerk and assistant to the board of revision of the Wisconsin state 
 
378 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 statutes, and is widely known throughout the state as the author of 
 Simmons' Digest of Wisconsin Reports. In 1850 he removed to Mc- 
 Henry county, IlHnois, where, as stated, was born his son, John B., the 
 subject of this sketch. In 1855 he returned to Lake Geneva, where 
 the boy received his early education. The family afterward removed 
 to Elkhorn, Walworth county, where the son commenced the study of 
 his profession in his father's office. 
 
 In February, 1873, the former (John B. Simmons) was admitted to 
 practice at Elkhorn, but immediately removed to Lake Geneva and 
 opened an office alone. In this prosperous and intelligent community 
 he continued to reside, as a prominent citizen and attorney, for a full 
 quarter of a century. When the village was incorporated as a city in 
 1885 Mr. Simmons was elected* its first mayor, and for many years he 
 served as city attorney. In 1886 he formed a partnership with H. A. 
 Cooper and P. B. Nelson, of Racine, conducting a branch office at 
 Lake Geneva, and this arrangement continued until February, 1898, 
 when he removed to the former city. At present he is, therefore, a 
 member of the firm of Cooper, Simmons, Nelson & Walker, one of the 
 strongest combinations of legal and business talent in southern Wis- 
 consin. 
 
 Mr. Simmons' long career has been one of steady advancement and 
 prosperity, his practice often taking him into the higher courts. One 
 of the most important cases with which he has been identified is that 
 of Lyon vs. Fairbank (79 Wisconsin), in which an attempt was made 
 to enter as pubHc lands a portion of a lot in possession of N. K. Fair- 
 bank. Suit was brought for $100,000 for dispossessing plaintiff and 
 demolishing the building he had started to erect on the premises. He 
 was also connected with the case of the State ex rel. Janes vs. Nelson, 
 being an attempt to oust defendant from the office of district attorney 
 of Racine county upon the ground that he was holding the position of 
 Danish vice consul at the same time that he was an incumbent of the 
 county position. 
 
 In politics Mr. Simmons is a republican and has been a faithful 
 worker for his party, without being a narrow partisan. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 379 
 
 He was married at Lake Geneva, in 1876, to Miss Sarah B. Sturges. 
 They have two children — -John E. and Katherine. 
 
 MARSHALL M. STRONG. 
 
 Marshall Mason Strong was born at Amherst, Massachusetts, Sep- 
 tember 3, 1 81 3; he received an academic education in his native town 
 and graduated from Union college, after which he studied law and was 
 admitted to the bar in Troy, New York. In May, 1836, he came to 
 Wisconsin, locating at Racine, where his residence continued to be; 
 he was the first prosecuting attorney of Racine county. In 1838 he 
 was elected a member of the territorial council for four years; after at- 
 tending the sessions of November, 1838, and January, 1839, he re- 
 signedj in 1843 he was elected to fill a vacancy of three years; was 
 again elected in 1846 and resigned in 1847. , In 1839 he was one of the 
 committee to prepare a bill revising the statutes. In 1846 he was 
 chosen a member of the convention that framed the first constitution; 
 he served in that body as chairman of the committee on constitution 
 and organization of the legislature and as a member of the committee 
 on the organization and oiificers of counties and towns. "He took a 
 very prominent part in all the labors and debates of the convention; but, 
 in the end, so widely differed from the majority that he resigned before 
 the close of the session, and was very active in his efforts to defeat the 
 constitution when submitted to popular vote — indeed, may be said to 
 have been the chief cause of its final rejection at the polls." In 1849 
 Mr. Strong was a member of the assembly and took an important part 
 in the enactment of the revised statutes. This was his last appearance 
 in public life. He continued in the practice of his profession until his 
 health failed, and died March 9, 1864. 
 
 Moses M. Strong has written of Marshall M. Strong that the latter's 
 reputation and standing as a lawyer soon "after 1839 became coexten- 
 sive with the territory, and he ranked as the professional peer of 
 any and all of his contemporaries. Perhaps the most remarkable trait 
 of his character as a lawyer was his extreme imperturbability. Noth- 
 ing could disturb him, nothing excite him. Always self-possessed, ever 
 
380. HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 equipoised, he was at all times ready to take any proper advantage of 
 the mistakes of his adversaries. While he possessed great power of 
 argument, it was the power of captivating, unanswerable logic and an- 
 alytical deduction, and not the force of declamation or oratory. In the 
 early years of the territory its legislative assembly presented a field for 
 the display of argumentative abilities which, outside the walls of the 
 capitol, served to establish the status of its members. The opportu- 
 nities thus existing, although not used with any such design, had the 
 effect of securing for Mr. Strong the reputation of a forensic debater 
 of the highest order of intellect and power." 
 
 It is further said that Mr. Strong's general reading, aside from his 
 profession, was extensive and varied. His love of literature and science 
 prompted him to spend time and money for the establishment of 
 Racine college and the erection of the college buildings, being always 
 forward in such public or private enterprises as the public good seemed 
 to require. He was a man of strong will and great firmness of purpose, 
 yet seeking less his own advantage than what he conceived to be for 
 the public good. During the civil war he was an unconditional sup- 
 porter of the government, using his means, employing his pen and lift- 
 ing his voice, while strength lasted, to aid the government. 
 
 In his intercourse with his fellow-men he was courteous and gentle- 
 manly. Toward his professional brethren he was unassuming, and ever 
 ready to advise and assist the younger portion, who placed unlimited 
 confidence in his judgment and rectitude. Dignity characterized his 
 bearing in court, as elsewhere, and his uprightness, fairness and candor 
 in trying causes gave him as much influence with the court and jury as a 
 man ought to have; but that influence was ever used to promote justice 
 and never abused. Xo person had just cause to complain that he ever 
 endeavored to obtain an unfair advantage, and yet his sagacity and 
 watchfulness were an effectual guard and protection to his clients' in- 
 terests. His exalted views of the nature and duties of his profession 
 were such that he despised the tricks and chicanery resorted to by some, 
 and always used his influence to effect a settlement of difficulties be- 
 tween litigants rather than add fuel to the flame. He had a quick ap- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 381 
 
 prehension, retentive memory, a discernment remarkably active and rea- 
 soning faculties eminently vigorous. His philosophical mind, in orig- 
 inality and profundity of thought, was equaled by few. Had he occa- 
 sion to investigate any subject, he was persevering in research and 
 thorough in study. In conversation he was uncommonly instructive. 
 In private life he was a genial companion — always tender and compas- 
 sionate to the poor and always ready to relieve them — strictly temperate 
 in his habits and entirely free from the vices into which mortals but too 
 often are led. In short, truth, justice and gentleness, than which noth- 
 ing can be more sacred and pure, mingled in his every act and char- 
 acterized the man. 
 
 ISAAC W. WEBSTER. 
 
 Isaac \y. \\''ebster was a native of New Hampshire, born in 1819. 
 He was well educated, and studied law with Benjamin F. Butler at 
 Lowell, Mass. In 1848 he removed to Wisconsin and settled at Ke- 
 nosha, where he continued afterwards to reside. There he com- 
 menced the practice of his profession and continued it until his death. 
 He was a lawyer of more than ordinary ability, and his inborn integrity 
 and honesty were such prominent traits of his character that he com- 
 manded the unbounded confidence of the community. He filled the 
 ofiice of postmaster and of district attorney of the county, and was 
 three times chosen mayor of the city. In 1869 he was elected judge of 
 the county court for four years, and in 1873 was reelected for a like 
 term. Judge Webster took much interest in the political questions of 
 the day, although never holding any civil ofiice except such as were 
 intimately allied to his profession. He was identified with the press, 
 and for several years edited the Kenosha Union with great ability. He 
 was a man of genial manners and popular address, and his death, which 
 occurred August 4, 1875, was a loss to the whole community. 
 
 SAMUEL A. WHITE. 
 
 Samuel A. White was born in Franklin, Delaware county, New 
 York, August 10, 1823; was graduated from Hamilton college in 1841; 
 
382 HISTORY OF THE BENCH ANd' BAR OF WISCONSIN. 
 
 settled in Port Washington, Ozaukee county, Wisconsin, in 1845; ap- 
 pointed postmaster in 1853; served in the assembly in 1857; was chosen 
 county judge in 1861; in 1864-65 was assistant bank comptroller. 
 About this time he became a resident of Whitewater, was a member of 
 the board of regents of normal schools from 1865 until 1870, and in 
 1871 and 1872 was a member of assembly from Walworth county. His 
 death occurred at Whitewater, March 4, 1878. 
 
CHAPTER XIII. 
 THE SECOND CIRCUIT, ITS JUDGES AND LAWYERS. 
 
 Originally the second judicial circuit was composed of the counties 
 of Milwaukee, Waukesha, Jefferson and Dane. The growth of Mil- 
 waukee has had such an effect upon the business of the courts that 
 since 1882 the county of Milwaukee has alone constituted the second 
 circuit. In 1887 the superior court of Milwaukee county was estab- 
 lished; and in 1891 a law was enacted providing for the election of a 
 second judge of that court. These measures being insufficient to af- 
 ford all the relief necessary an amendment to the constitution was 
 adopted in 1897 providing that an additional circuit judge may be 
 elected for that circuit. The legislation had pursuant to this amend- 
 ment has not taken effect at the time of this writing, so that but one 
 circuit court is in existence in the second circujt. 
 
 That circuit has had seven judges in all — the first being Levi 
 Hubbell, and the others, in order, A. W. Randall, Arthur Mac- 
 Arthur, Jason Downer, D. W. Small, Charles A. Hamilton and D. H. 
 Johnson. 
 
 The bar of the old second circuit was a very strong one, including 
 as it did Madison, Milwaukee, Waukesha and Watertown. The Mil- 
 waukee bar has long had a high reputation for ability. The names of 
 Arnold, Carpenter, Finch, Lynde, Miller, Ryan and others of the early 
 days would honor the bar of any city. The bar of later times, too, is 
 worthy the metropolis of Wisconsin, and compares favorably with that 
 of the early days. 
 
 Sketches of the lives of Judges Hubbell and Downer appear in other 
 chapters. Sketches of the lives of the other judges of the second cir- 
 cuit follow. 
 
 383 
 
384 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 THE BENCH. 
 
 ALEXANDER W. RANDALL. 
 
 • 
 
 Alexander William Randall occupied a seat upon the bench but a 
 few months, and that by executive appointment. On the first of Au- 
 gust, 1856, he was appointed by Governor Bashford judge of the second 
 circuit, in place of Levi Hubbell, resigned. His oath of office was 
 filed September 10, 1856, and he continued to perform his judicial 
 duties until the next April. 
 
 As brief as was his term, the manner in which his duties were per- 
 formed won general approbation, and he would have been elected to 
 the office by the people but for the large political majority and the 
 personal popularity of the candidate arrayed against him. 
 
 A. W. Randall was born in Ames, Montgomery county, New York, 
 October 31, 1819. He enjoyed a very thorough and complete academic 
 education, and having adopted the profession of the law as his life pur- 
 suit, was a diligent student of its elementary principles, and became well 
 qualified for its practice. At about the time he attained his majority, 
 in 1840, he settled in Waukesha, then called Prairieville, where he com- 
 menced the practice of law, which he continued until it was interrupted 
 by the necessity of devoting his time to the important civil offices which 
 he was called upon to fill. While in practice he took rank with the 
 ablest of the able lawyers in the metropolitan circuit, and if civil offices 
 had not diverted him from his profession he would doubtless have been 
 a most distinguished ornament to the bar. 
 
 Soon after he commenced practice he was appointed postmaster, 
 which office he held for several years. He was elected, in 1846, to the 
 convention which framed the first constitution for the state. His chief 
 distinction, as a member of that body, was the introduction and suc- 
 cessful advocacy of the resolution for the separate submission to a vote 
 of the people of the question of colored suffrage. In this he was an- 
 tagonized by a very large majority of the democratic party of the state. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 385 
 
 with which he had, before that time, been identified. Thereafter, for 
 several years, he devoted himself exclusively to the practice of law and 
 took no prominent part in politics, being regarded as too much of an 
 abolitionist to be popular with either party. 
 
 In 1854, by an extraordinary local vote of the incipient republican 
 party, in combination with some other elements, he was elected a mem- 
 ber of the assembly for the year 1855. He now entered upon a political 
 career, which, for nearly a quarter of a century, knew no political re- 
 verses, and during a large part of which he was wafted on the waves of 
 poHtical success, and filled many of the highest official positions in the 
 state and nation. 
 
 In 1855 Mr. Randall was made the candidate of the new republican 
 party for attorney general, but it was not yet sufficiently crystallized to 
 command success, and all its candidates were defeated, except the can- 
 didate for governor, who obtained the office by a resort to the supreme 
 court. His judicial services in 1856-57 have been noticed. In 1857 
 and again in 1859 he was the candidate of the republican party for 
 governor, and upon both occasions was elected. For four years, until 
 the first of January, 1862', he was the head of the executive branch of 
 the state government. During the last year of his service, the first of 
 the rebellion, his duties were new and highly responsible. The exec- 
 utive office became the focus and headquarters of military activity. 
 He proved equal to the occasion. As an organizer he had wondrous 
 talent and as an administrative officer he was unsurpassed. 
 
 At the close of his term Governor Randall had a strong desire for 
 service in the army. On visiting Washington, however. President Lin- 
 coln induced him to forego his purpose and accept the appointment of 
 minister to Rome. He went to the "eternal city," but such a life had 
 no charms for him; he could not endure the sense of banishment when 
 every arm was needed to strike a blow for his country. He resigned, in 
 1863, and on his return sought a military position. The President, 
 however, again dissuaded him and prevailed upon him to accept the 
 office of assistant postmaster general, which office he filled until 1865, 
 when President Johnson promoted him to the head of the department. 
 
386 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 from which he retired at the close of the presidential term. He was 
 the first citizen of Wisconsin to hold a cabinet office. 
 
 In 1869 he resumed the practice of the law at Elmira, New York, and 
 continued to practice there until his death, August 26, 1872. 
 
 ARTHUR MACARTHUR. 
 
 The ancestors of Mr. MacArthur have been famous in Scotch ro- 
 mance and history as the MacArthurs of Loch Katrine and Loch 
 Arve. It is said that an island. in Loch Katrine was consecrated as the 
 burying place of the MacArthurs and that there the tombstones mark- 
 ing the graves of those who' bore that name and who were in the 
 crusades can be found by removing the earth to the depth of a foot or 
 two. Four of his relatives were participants in the battle of Culloden, 
 two of whom died on the field. 
 
 The subject of this sketch was born in Glasgow, Scotland, January 
 26, 1815, and came to this country with his parents when a child. He 
 was educated at Uxbridge and Amherst academies, in Massachusetts, 
 and Wesleyan university, in Connecticut; his study of the law was 
 prosecuted in New York, and his admission to the bar occurred in 1841. 
 He first practiced in Springfield, Massachusetts, and in 1843 became 
 public administrator of Hampden county and also judge advocate of the 
 western military district of Massachusetts. He returned to New York 
 city in 1845 and practiced law there until 1849, when he removed to 
 Wisconsin, locating in Milwaukee. In 1851 he was elected city attor- 
 ney and held that office one term. In 1855 he was elected lieutenant 
 governor on the democratic ticket. That election resulted in a contest 
 between the candidates for governor, with the result that Bashford, the 
 republican candidate, was seated by the supreme court, though Barstow 
 held the certificate of election. The title of Mr. MacArthur to the lieu- 
 tenant governorship was not questioned. He, however, became in- 
 volved in the controversy. Prior to the final judicial determination of 
 the contest Barstow resigned, and the lieutenant governor, by virtue of 
 the constitution, became governor. MacArthur not only took the 
 office, but resolved to keep it; his contention was that the right to it 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 387 
 
 was not a question for the courts, but that the certificate of the state 
 canvassing board was final; he, being undeniably lieutenant governor, 
 must necessarily, because of the resignation of the governor, succeed to 
 that office. He held the office four days. One of his first official acts 
 was to order that the arms and ammunition stored in the executive 
 office by Barstow be removed from the capitol. After the supreme 
 court determined that Bashford was elected and that the right to the 
 office was a question for judicial determination, Bashford and his coun- 
 sel went to the executive office and demanded of MacArthur that he 
 surrender the possession of it. "Am I to understand," said he, "that 
 if I do not surrender the office you will resort to force?" Timothy O. 
 Howe, Bashford's counsel, said: "My advice is that Mr. Bashford hang 
 his coat upon a nail and proceed to the performance of his guber- 
 natorial dvities. I would not, of course, advise him to lay violent hands 
 upon so distinguished a gentleman as Governor MacArthur." After 
 further talk Mr. Bashford said that unless Mr. MacArthur retired he 
 would "probably be compelled to expel him by force," whereupon Mac- 
 Arthur withdrew and resumed his duties as president of the senate. 
 
 In 1857 Mr. MacArthur was elected judge of the second circuit to 
 fill the vacancy caused by the resignation of Judge Hubbell; in 1863 
 he was re-elected. In 1867 he was a commissioner on the part of the 
 United States to the Paris exposition. In 1869 he resigned the circuit 
 judgeship, after thirteen years' service. On his retirement the bar of 
 Milwaukee paid him the compliment of calling a meeting to express 
 appreciation for his services, and made, by WiUiam Pitt Lynde, a pres- 
 entation to him of a valuable set of law books. 
 
 In 1870 President Grant appointed Judge MacArthur an associate 
 justice of the supreme court of the District of Columbia, which position 
 he held for more than seventeen years, resigning in 1888, at the age of 
 seventy-three. While in the discharge of his judicial duties he reported 
 three volumes of the decisions of the court of which he was a member 
 and aided in reporting a fourth volume. 
 
 During his later years Judge MacArthur devoted considerable 
 attention to literature, having written "The biography of the English 
 
388 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 language, with notices of authors, ancient and modern;" "The his- 
 torical study of Mary Stuart," an attempted vindication of her memory 
 and character; "Essays and papers on miscellaneous topics;" a "His- 
 tory of Lady Jane Grey;" a volume of "Lectures on the law, with 
 special reference to the legal rules that regulate business in commerce, 
 real estate, mortgages, trust deeds, and the property rights of married 
 women;" these were delivered before a business college of Washington. 
 Notwithstanding his ofificial duties and other engagements Judge 
 MacArthur was actively interested in benevolent enterprises, having 
 served as president of the society for the prevention of cruelty to animals 
 and children; he was also president of the board of regents of the pro- 
 posed national university. During his residence in Washington he was 
 a social favorite, much given to dining out, and always ready in social 
 converse. His death occurred at Atlantic City, New Jersey, August 
 26, 1896. 
 
 DAVID W. SMALL. 
 
 Judge Small came to Wisconsin from Pennsylvania, his native state. 
 He was born at Frankfort, Philadelphia county, December 18, 1827. 
 His early boyhood days were spent on a farm, the winter months being 
 given to attendance on the common schools; he also attended the 
 Moravian college at Nazareth for two years. At the age of eighteen 
 he began teaching school, and at the same time read law with George 
 Lear of Doylestown, Bucks county. After his admission to the bar, 
 in April, 1850, he started for the west, and located at Oconomowoc, 
 Wisconsin, where he has since resided. In order to make up the de- 
 ficiency between his income as a lawyer and his needs he engaged in 
 surveying for a time; but the necessity for so doing was not long con- 
 tinued. In 1862 he was nominated by the democrats as a candidate for 
 district attorney, and was twice re-elected. In 1869 he was elected 
 judge of the second circuit by 7,617 votes to 5,398 for Alpha C. May; 
 in 1875 he was reelected, receiving 9,580 votes to 7,164 for Joshua 
 Stark. He failed of a second re-election in 1881, the vote being 10,089 
 in his favor to 11,504 in favor of Charles A. Hamilton. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 389 
 
 CHARLES A. HAMILTON. 
 
 Judge Hamilton is a grandson of the great Alexander Hamilton. 
 He was born in Saratoga Springs, New York, July 23, 1826; educated, 
 generall}' and professionally, in New York city, and was there admitted 
 to the bar September 2, 1847. In 185 1 he located in Milwaukee, and 
 became a partner of the late J. E. Arnold; in 1858 he became a mem- 
 ber of the firm of Emmons, Van Dyke & Hamilton. 
 
 Li August, 1861, Mr. Hamilton entered the Seventh Wisconsin 
 regiment as major, which left the state for Washington in September 
 and became a part of the brigade which became known as the iron 
 brigade; he subsequently became lieutenant-colonel; in 1862 he par- 
 ticipated in General Pope's Virginia campaign, and commanded his 
 regiment in the battle of Gainesville, where he was severely wounded. 
 Before fully recovering he rejoined his regiment and took part in the 
 engagements of the army commanded by General Burnside, including 
 the battle of Fredericksburg. As a result of the wound received at 
 Gaines\ille, Colonel Hamilton became unfitted for military duty and 
 was mustered out in March, 1863, as permanently disabled. Returning 
 to Milwaukee, he resumed business relations with the firm last referred 
 to. After its dissolution he practiced alone until his election as circuit 
 judge, which occurred in April, 1881, his term of office beginning in 
 January following and continuing for six years. Besides serving in that 
 capacity he was for some years a member of the board of regents of the 
 state university. 
 
 Judge Hamilton's career upon the circuit bench met the expec- 
 tations of his friends, and was creditable to him and the state. It is 
 said of him by Joshua Stark, in chapter 31 of the History of Milwaukee 
 County, "that he was a cultivated gentleman, a sound lawyer and an 
 upright and conscientious judge. At the end of his term he retired in 
 feeble health." 
 
 DANIEL H. JOHNSON. 
 
 Daniel H. Johnson, the present judge of the second judicial circuit, 
 is one of the most brilliant as well as solidly judicial characters who have 
 25 
 
390 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 been identified with the bench and bar of Wisconsin. While making a 
 broad reputation as a learned member of his profession, he has at the 
 same time so stored his mind with the best literature of the world that 
 his conversation and his writings remind one of the days when the 
 choice minds of England were given over to high flights of fancy and 
 philosophy, rather than to the turmoil of business and poHtics. 
 Although, in the latter days, it has often been said that "conversation 
 is a lost art," if this saying is to be accepted. Judge Johnson is certainly 
 one exception to its general truth. 
 
 Judge Johnson is a native of Kingston, Ontario, where, or near 
 which city, he was born on July 27, 1825. His father was a- seasoned 
 soldier under Wellington, and came to America as a British sergeant, 
 serving in the war of 1812. At the conclusion of hostilities he obtained 
 a homestead near Prescott, but afterward removed to a locality near 
 Kingston and died about two years after the birth of our subject. 
 Judge Johnson's mother was the daughter of a brave revolutionary 
 soldier; so that, logically, he comes of good fighting blood. These 
 facts, also, may account for his aggressive spirit, joined to one of 
 charitable compromise. 
 
 Judge Johnson's early years were passed with an aunt near Kempt- 
 ville, not far distant from his birthplace, where he obtained his first 
 schooHng. After teaching for a time, in 1844 (then but nineteen years 
 of age) he turned his face to the new and invigorating west, taking a 
 course of instruction at the Rock River seminary. Mount Morris, 
 Illinois. In the summer of 1845 he found himself in the stirring region 
 of the lead mines, of which Galena was the great center. Working as 
 a miner and teaching as an educated gentleman were avocations grace- 
 fully undertaken by the adaptable young man, and in the latter capacity 
 he removed to Prairie du Chien in 1848. Here he commenced the 
 study of law, and his persistent application, retentive memory and finely 
 trained mind, incited by a high ambition directed toward a definite 
 object, bore such fruits that in 1849 he underwent a successful examin- 
 ation for admission to the bar. 
 
 Mr. Johnson at once commenced practice in Prairie du Chien and 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 391 
 
 thus continued until 1854, when he entered a field in which he might 
 have made as shining a mark as in that of the law; he purchased an 
 interest in the Prairie du Chien Courier, and afterward became its 
 sole proprietor, as well as editor. As a member of the journalistic 
 profession for only two years he gained laurels of which an editor of 
 many years' standing might justly be proud, the force and purity of his 
 diction, as well as the strength of his character, earning him many 
 friends and admirers. In 1856, however, he decided to return to the 
 profession for which he had been specially trained, forming in that 
 year a partnership with W. R. Bullock, a nephew of vice president 
 Breckenridge. The firm of Johnson & Bullock, thus established, re- 
 mained unchanged until the breaking out of the civil war, when the 
 junior partner joined the confederacy, and Judge Johnson, as a whig 
 and a republican, united with the forces of the north. 
 
 In i860 Judge Johnson had. been elected to the legislature, repre- 
 senting the counties of Crawford and Bad Ax (now Vernon), and 
 although an untried member, he was appointed to the position of 
 chairman of the committee on ways and means, as well as being a 
 member of the committee on education. During the fall of 1861 he 
 again entered public life as assistant to attorney general Howe, dis- 
 charging the duties of that position until May, 1862, when he was called 
 to the south as a clerk in the paymaster's department. In November 
 of that year he returned to Wisconsin, settling with his family in 
 Milwaukee. 
 
 Since residing in the Cream City he has been associated, at different 
 times, with the firms of Wyman & Johnson; Austin, Pereles & John- 
 son; Rogers & Johnson; Markham & Johnson; Johnson & Rietbrock 
 (1871); and Johnson, Rietbrock & Halsey, the third member of the 
 last named firm being admitted in 1876. 
 
 In January, 1888, Mr. Johnson was elected to the judgeship of the 
 circuit court over N. S. Murphey, the labor candidate. He was unani- 
 mously re-elected in 1893, his present term expiring on December 31, 
 
 1899. 
 
 Since becoming a resident of Milwaukee he has been a leader in its 
 
392 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 public as well as legal affairs. He was a member of the convention 
 called in 1867 to frame a new city charter, being chosen chairman of 
 the committee on revision; in 1868 and 1869 he was again elected to 
 the legislature, acting during his first term as chairman of the committee 
 on education, and, during his second, chairman of the judiciary com- 
 mittee. In 1872 his force as a thinker and his ability-as a public speaker 
 were recognized in a broader field by his selection as a delegate to the 
 national convention which met in Cincinnati and placed Horace 
 Greeley 'in nomination for the presidency. Since the split in the repub- 
 lican party, occasioned by the so-called Greeley movement. Judge John- 
 son has acted with the democracy, although his political views now, 
 as then, are liberal and elastic. In 1878 he was elected city attorney for 
 two years, and ten years later, as stated, was elevated to the bench. 
 
 As judge of the second AA^isconsin circuit for the past decade he has 
 become known far and wide for the .clearness and breadth of his 
 decisions, and the almost classic language in which they are couched. 
 It is not too much to say, in fact, that there never was an occupant of 
 this bench of more breadth of judicial and personal character or greater 
 reserved force. 
 
 It may be added that the court over which Judge Johnson presides 
 has four times a year a calendar of between four hundred and five hun- 
 dred cases, and a weekly- motion calendar of from thirty to fifty motions. 
 
 In literary circles his name has a national reputation. As a writer 
 of short stories he is pre-eminent, his ingenuity, his freshness and 
 lucidity of language and his grace of general treatment being qualities 
 of especial notice. He has contributed to the exclusive columns of the 
 Atlantic Monthly such stories as "Our Paris Letter," ''Broke Jail," and 
 general newspaper and periodical literature have for many years been 
 enriched by his pen. 
 
 THE BAR. 
 
 JONATHAN E. ARNOLD. 
 
 Mr. Arnold was born at Woonsocket, Rhode Island, February 16, 
 18 14; graduated from Brown university; read law in an office and took 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 393 
 
 lectures at Harvard for one year. He removed to Wisconsin and settled 
 at Milwaukee in September, 1836, where he practiced his profession 
 and resided until his death. In 1840 he was elected a member of the 
 territorial council, served during one session and resigned; he served 
 as district attorney of Milwaukee county several years; was an unsuc- 
 cessful candidate against General Dodge for Congress in 1841, and 
 was again a candidate for representative in i860, but was beaten by 
 John F. Potter, a republican. 
 
 In politics Mr. Arnold was a whig so long as that organization was 
 intact; after its disruption he acted with the democratic party, though 
 during the civil war he made a number of speeches in favor of the main- 
 tenance of the Union. His death, caused by heart disease, occurred 
 in his office, June 2, 1869. 
 
 Mr. Arnold was of counsel for Judge Hubbell in the impeachment 
 proceedings against him in 1853, and acquitted himself with great 
 credit. Another of his important cases was the Bashford-Barstow con- 
 troversy in the supreme court, involving the right to the governorship; 
 associated with him in the case were Harlow S. Orton and Matt. H. 
 Carpenter; on the other side (representing Mr. Bashford) were Timothy 
 O. Howe, E. G. Ryan, J. H. Knowlton and Alexander W Randall. 
 The manner in which Mr. Arnold performed the duties of district 
 attorney gave him a large reputation for his knowledge of criminal law; 
 and subsequently, it has been said, a most important part of his practice 
 was in defense of persons accused of crime, and often where his clients 
 were in the most imminent peril. In these cases he acquired his greatest 
 distinction. 
 
 In personal appearance his distinguishing characteristics were 
 polished manners, mild, courteous and dignified demeanor, respect and 
 kindly feeling toward others; an air of conscious strength entirely un- 
 mixed with anything like self-conceit or arrogance; an erect and well- 
 formed figure, which in early years gave him an appearance of manly 
 beauty; an intellectual face, high and fully exposed forehead, dark, lus- 
 trous eyes, with ever-varying expression, with firmness and energy indi- 
 cated in every feature and in every movement. 
 
394 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 [Moses ^I. Strong, the author of the preceding paragraph, has written 
 thus: "For nearly three-and-thirty years Jonathan E. Arnold was a 
 leader of the Wisconsin bar. For all that time he discharged a large 
 measure of its duties, wore a large share of its honors; a prominent 
 figure among the distinguished lawyers of the territory and state. His 
 eloquent voice has filled, his professional labors havg adorned, many of 
 the court rooms of the state. For over a quarter of a century he has 
 filled a large place in the public view; known of all men as a lawyer of 
 fine talents, thorough training, untiring energy, singular address, bold, 
 yet prudent, of remarkable force always, tenderly pathetic at times; of 
 rare eloquence whenever the occasion inspired it. Eminent as he was for 
 professional ability, he was perhaps even more distinguished for his 
 professional character. He was every inch a lawyer, thoroughly profes- 
 sional in mind and habit. He was remarkable for his professional bear- 
 ing, a living model of professional esprit de corps. He was no waj-ward 
 genius, occasionally exciting wonder or admiration. He was a man of 
 disciplined and practiced talent, always efificient, bringing to every 
 cause the just measure of ability it needed or admitted. He was singu- 
 larly self-reliant; his powers were always in singular self-command. He 
 ne^■er forgot himself or the occasion. Always great, he was greatest 
 in jury trials. He was a study of professional dignity. Nothing dis- 
 tracted him, nothing disturbed him. He never wasted a word or a 
 gesture. His conduct of a cause seemed like a great piece of accom- 
 plished acting, and at times he may have seemed artificial, but his 
 efforts were always earnest and thorough. Weighty in thought, chaste 
 in language, graceful in manner, he habitually illustrated his own con- 
 ceptions of professional carriage." 
 
 It is said of 3ilr. Arnold in Reed's Bench and Bar that "his was a 
 strong character, and his leading characteristics seem to have been that 
 he was gentle as a child and gentlemanly in all his daily deportment 
 toward court and bar. He told the court nothing he did not believe 
 in regard to the law. He commenced his argument slow and dull, fired 
 up to the eloquence of the best lawyers of Xew England's best days, and 
 in a large majority of cases carried court and jur\- with him. He never 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 395 
 
 smiled or joked while guarding his client's interests in court, but, Hke 
 Rufus Choate, acted as though a religious duty was upon him, and the 
 interests in his hands were too sacred for him to forget for a moment, 
 even to look to the right or left. He never permitted a client to go to 
 law with him for advocate, unless he believed and had good faith that 
 the law was in favor of his client. He was one of the most modest of 
 men. He was honest in his charges against clients, often telling them 
 that he had done them no good, and charging accordingly. He treated 
 all men well, the humblest as well as the richest. He seemed to know 
 all the law intuitively and believed in equity, and was great and grand 
 in intellect and the richness and accomplishments of legal education 
 and legal lore. He feared no man and bullied no man." 
 
 Mr. Arnold's reputation as a lawyer was much extended by his man- 
 agement of two murder cases, which gave him opportunities to demon- 
 strate his power as a criminal lawyer and show the possession of those 
 peculiar gifts for- which he afterwards won such renown. One of these 
 was the Ross-Radclifife trial in 185 1. The case was apparently one of 
 cold-blooded murder for the sole purpose of robbery. One David Ross, 
 whose wife had died, turned all his possessions into money, preparatory 
 to leaving Milwaukee. This sum of several hundred dollars he con- 
 cealed about his person in a belt. During the Sabbath day he was often 
 seen in company with one Radcliffe, a man of little character, and in the 
 evening was found in the street in a dying condition. The money was 
 gone, while the wounds upon his person showed that he had been 
 attacked and beaten into insensibility. Many points -of evidence pointed 
 to RadclifTe, while the prosecutor, A. R. R. Butler, assisted by the skill 
 of E. G. Ryan, wove about him a network of proof from which it seemed 
 there was no possibility of escape. Mr. Arnold appeared for the defense, 
 assisted by A. D. Smith. The contest waged by these giants was one 
 of the most thrilling and stubborn ever seen in the state up to that time, 
 fifteen days passing before the final issue was taken from the hands of 
 counsel and given into that of the jury. The result was less of a sur- 
 prise to those who had watched the skill with which Mr. Arnold had 
 directed his course toward those in the box than to the general public. 
 
396 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 The verdict was one of acquittal. It was upon its announcement that 
 Judge Hubbell, who sat upon the bench and was himself convinced that 
 blood lay upon the hands of Radclifife, was surprised out of his judicial 
 calm and, fixing his eyes upon the foreman, asked, with surprise, "Is 
 that your verdict?" "It is," was the answer. "Then may God have 
 mercy on your souls!" said the judge.* 
 
 In 1852 another case, of greater sensational interest, occurred, which 
 gave an additional opportunity to Mr. Arnold to display his capacity as 
 a criminal lawyer. October 14, as John M. W. Lace, a member of the 
 Milwaukee fire department, stood on Wisconsin street, he was ap- 
 proached by Mary Anne ^^^^eeler, who drew a pistol and shot him dead. 
 The girl was arrested, admitted the shooting, and in defense declared 
 that Lace had been the cause of her ruin. Mr. Arnold was engaged for 
 the defense, and although he was assisted by William Al:>bey of Cleve- 
 land, Ohio, and W H. Tucker of Sandusky, Ohio, — the state in which 
 
 *In ch. 32 of the History of Milwaukee County Joshua Stark says of this trial 
 that it was conducted on both sides with extraordinary zeal and ability. The cir- 
 cumstances of the crime and the great ability of the counsel employed attracted uni- 
 versal attention. Public interest was intense. Crowds thronged the court house 
 eager to hear. Mr. Ryan had been in the city but about three years and the occasion 
 spurred him to extraordinary effort. Messrs. Arnold and Smith fully appreciated the 
 intellectual power and great skill opposed to them, and the difficulties of their de- 
 fense, and were alert and energetic to secure every possible advantage. The trial 
 had lasted nearly two weeks when the testimony was closed. The desire of the people 
 to hear the addresses of counsel to the jury was so great that Judge Hubbell ad- 
 journed the court to the largest public hall in the city for the "summing up," and 
 here for two days the public listened with "bated breath" to the elaborate and elo- 
 quent pleas of the counsel. The scene was highly dramatic. The hall was equipped 
 as a theater, and the main floor and gallery would seat about fifteen hundred persons. 
 The court, judge, jury, prisoner, officers and attorneys occupied the stage, and the 
 play went on. The facts and circumstances showing guilt were grouped and linked 
 together on one side with masterly skill, and the counsel for the accused were defied 
 to break the chain. On the other side, the uncertainty of circumstantial evidence 
 and the danger of convicting the innocent were pressed with burning eloquence upon 
 the hearts of the jury. Both Arnold and Smith were able and eloquent. Their im- 
 passioned appeals to the jury were successful, aided, perhaps, by the very vehemence 
 and persistence of the prosecution. The jury acquitted the prisoner, to the surprise 
 and indignation of the judge, whose comment on the verdjct was: "May God have 
 mercy on your consciences." One of the jury, William K. Wilson, felt the rebuke as 
 a personal insult, and became, in 1863, the willing accuser of Judge Hubbell to the 
 assembly of the state, when proceedings were lodged for his impeachment." 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 397 
 
 the parents of the girl resided — it was upon his shotdders that the main 
 labor devolved, and it was due to his skill and management that she was 
 acquitted. The only ground in which the defense could have any hope 
 lay in a moral justification because of the relations of the two, and the 
 wrong that had been done. But strong as this might possibly be as a 
 matter of sentiment or even of justice, it constituted no defense in law. 
 At that day the plea of '"moral" or "emotional" insanity was a novelty 
 in the west, and it may be questioned whether the books then in use 
 recognized it.f If this be wrong, the grounds upon which the plea could 
 be used were meager and the materials out of which insanity of that kind 
 could be constructed were very shght. Mr. Arnold decided upon a bold 
 stroke. His real defense, as set forth indii-ectly in every phase and turn 
 of the trial, was the broad one that the girl had been justified in the 
 murder, and that by the shedding of Lace's blood alone could atonement 
 be made for the outrage put upon her. To fasten this thought in the 
 conscience of the jury and yet afford a legal reason for a verdict of ac- 
 quittal, was the task he set himself to perform. In his opening address, 
 in the examination of witnesses, in his ])owerful closing plea, and in all 
 possible legitimate ways, from first to last, he kept this object in view 
 with consummate skill, and dro^'e his purpose home with power and 
 
 tj. H. Kennedy is the author of the account of the two trials for murder given 
 in the text, though the language is varied somewhat. He says that the defense in this 
 case attracted world-wide attention, and was even cited as an example in the course 
 of a debate in the English parliament. Vol. 6, Magazine of Western History, jpages 
 174-176. 
 
 Mr. Stark, in the work referred to in the preceding note, says that Mr. Arnold's 
 defense was temporary or emotional insanity. There was little evidence in its sup- 
 port. Repeated offers were made by him to prove that the victim had, at some time 
 previous to the homicide, ill-treated and grossly slandered the accused, but the evi- 
 dence was rejected. j\lr. Arnold's object was gained, however, since his offers 
 gave him the opportunity, allowed by the court, for the repeated recital in the hear- 
 ing of the jury of the story of gross wrong and insult, in terms designed and well 
 fitted to excite sympathy for the accused, and to arouse strong prejudice against her 
 assumed traducer. This being effected, it was only necessary to invent a pretext for 
 her acciuittal. With wonderful ingenuity, Mr. Arnold framed and induced the court 
 to give instructions so artfully drawn as to open tfie way for the verdict he desired, 
 and then, with great skill and pathos, pictured to the jury the mental distress which, 
 at the instant of the homicide, he maintained was madness. 
 
398 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 vigor. The trial commenced May i6th, 1853, with Judge Howe pre- 
 siding. In opening for the defense, Mr. Arnold made an earnest and 
 eloquent speech. These sentences are significant: "I have always sup- 
 posed, from what little I have known of myself, that I was a poor hand 
 to work without some material; that I M^as a poor hand to set up a sham 
 defense and seriously and earnestly to urge it upon a court or jury. I 
 do not feel competent to do it. I have neither the ability nor the inclin- 
 ation, and if I did not believe in my heart and before my God that the 
 defense which I shall undertake to establish here is genuine and is well 
 founded, I would take my seat and permit this woman to go to your 
 hands." 
 
 The following extracts from his closing argument may serve to show 
 its tenor and power: 
 
 It has been supposed by some that the fear of death was im- 
 planted in the consciousness of man in order to restrain him from the 
 exercise of that larger share of power with which he is endowed. But 
 all other animals upon our globe have been created with limited capac- 
 ities and limited spheres of action. Their power is present. It does 
 not extend beyond themselves, and hence the fear of present bodily 
 pain has been supposed to be sufficient to restrain them within their 
 legitimate spheres. But for man, with a body framed for vigorous ex- 
 ertion in every clime, with a mind unlimited in capacities and unceasing 
 in effort — for man, whose power extends not only to the present but 
 through future generations, some stronger restraint has been necessary 
 than the fear of present pain. It consists of the terrors of that un- 
 known region to which we are all rapidly hastening. A well-spent life, 
 the affections, the sorrows, the tears of those we love, may persuade us 
 of our merit; the principles of proud philosophy may sustain, the hopes 
 of divine religion may console us; but still nature will assert its domin- 
 ion, and we instinctively shudder at the silence and the gloom of the 
 grave. There sensuality, ambition, malice, revenge, all passion, is laid 
 low in the dust. There the tenderest earthly ties are snapped asunder 
 forever. There Alexander left his worlds unconquered and Croesus 
 parted with his gold. There Bacon forgot his learning and Newton 
 descended from the skies. There friend is unlocked from the arm of 
 friend, brother from the arm of brother. There the father takes the last 
 look at the body of his cherished son. There the doting mother, day 
 by day and night by night, moistens with her tears the clod that em- 
 braces her darling infant in its bosom. . 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 399 
 
 We say that the victim of seduction, with slander uDon her good 
 name, with her character robbed from her, with her hopes blasted, 
 under disgrace, infamy, desertion, betrayal, bleeding at every pore of 
 head and heart, in a sudden, overwhelming impulse of derangement, 
 upon meeting her seducer, took his life and avenged her wrongs be- 
 fore God and man. There with her own right hand hath she gotten 
 herself the victory! And Lace! Let no tears be shed over his grave. 
 By his conduct, by his vices, by his. crimes, he had excluded himself 
 from the protection of the law and from the protection of all cultivated 
 society; had shown himself to be a man no longer worthy of the confi- 
 dence and the respect of men or the love of woman — and I say here for 
 myself that it will be justified! It is justified in the judgment of the 
 world; in the judgment of all men who have a heart beneath their 
 breasts, who are men of honor or of courage, who reverence the female 
 sex, who love the mother that bore them, and who love their wives, 
 their sisters and their daughters. It is justified that her timely arm, 
 which had clung around his neck in love, should itself be the instrument 
 that in an instant should send his damned and coward soul — to heaven 
 or hell! 
 
 The trial was concluded May 26, and resulted in a disagreement. 
 The second trial began June 5, and resulted in a verdict of "not guilty, 
 by reason of insanity." The Milwaukee Sentinel of the following day 
 said: Mr. Arnold bore the brunt of the fight, and proved himself 
 throughout a consummate tactician and most successful advocate. His 
 whole plan of operations — the real attack made under a feigned issue — 
 his admirable opening and summing-up in the first trial and the far-sur- 
 passing effort at the second trial, enhanced his reputation as one of the 
 first criminal lawyers of the west. His closing effort in behalf of the 
 prisoner on Saturday afternoon was compact, logical, well-arranged, 
 earnest and at times most impassioned. 
 
 JAMES S. BROWN. 
 
 James S. Brown was born at Hampton, Maine, in February, 1824, 
 and improved the educational advantages afforded him. At the age of 
 sixteen he went to Cincinnati, entered an office, pursued the study of the 
 law and was admitted to the bar before he attained his majority. He 
 began practice in Milwaukee in 1844, '^ntl in 1845 was appointed prose- 
 cuting attorney of Milwaukee county; his discharge of the duties of' 
 
400 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 that office for several years was creditable to him and satisfactory to the 
 public. Upon the formation of the state government he was chosen 
 attorney general, and served as such until January, 1850. In 1861 he 
 was elected mayor of Milwaukee, and in 1862 was chosen a member 
 of the thirty-eighth Congress; he was defeated for re-election in 1864 
 by Halbert E. Paine, the republican candidate. His health failed in the 
 later years of his life, and the end came April 16, 1878. 
 
 It was the opinion of the late Moses M. Strong that "Mr. Brown 
 was far more than an ordinary lawyer," and that it was "within the truth 
 to say that so long as he continued in active practice he had few equals 
 in his profession within the limits of Wisconsin. His education, schol- 
 astic and legal, was excellent. He possessed a bright intellect and spark- 
 ling genius, and had great versatility of powers. As an advocate before 
 a jury he was logical and persuasive. He convinced by his argument 
 and persuaded by his eloquence, which oftentimes was of a high order. 
 His cases were always well prepared, and he was always careful and 
 painstaking in all his professional business. In the supreme court, in 
 which he had an extensive practice, his briefs were always clear and 
 comprehensive, and presented the points of the case and the arguments 
 in support of them in a forcible and logical manner." 
 
 MATTHEW H. CARPENTER. 
 
 On the 22d of December, 1824, at Moretown, Washington county, 
 Vermont, a son was born to the wife of an eminent lawyer and citizen 
 of prominence, and the parents, as if the spirit of prophecy were upon 
 them, named the child after the great English jurist, Matthew Hale 
 Carpenter. When the boy had reached the age of eleven years his 
 mother died, and Paul Dillingham, afterward governor of the state, 
 having charged himself with his education, Matthew became a member 
 of his family at Waterbury. 
 
 In 1843 John Mattocks, being then the representative to Congress 
 from that district, procured for young Carpenter an appointment as 
 cadet in the military academy at West Point. It opens a curious field 
 for speculation to reflect what might have been his career if he had per- 
 

 HOn MATTHEW H C^Al^iPElTTEB. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 401 
 
 severed in the profession thus chosen for him. He was a classmate in 
 the academy of General Fitz John Porter and others who attained prom- 
 inence in the war of the rebellion, and it is not inconceivable that he 
 might have proved to have the making of a great captain in him; but 
 it is not altogether easy to think of him as leading a fierce onset at 
 Chickamauga or storming an angle of the entrenchments in the wilder- 
 ness. At all events the possibility of that spectacle was denied us by 
 a weakness of the eyes which made it necessary for him to resign his 
 cadetship at the expiration of his second year. 
 
 Returning to Waterbury in the summer of 1845, he entered upon 
 the study of the law in the office of Mr. Dillingham, and two years later 
 was admitted to the bar at Montpelier. Soon after he removed to Bos- 
 ton and finished his studies in the office of Rufus Choate. It is known 
 that he enjoyed in a peculiar degree the intimacy of Mr. Choate, and 
 the formative influence of that incomparable lawyer upon his admiring 
 disciple is by no means difficult to discern. 
 
 In the spring of 1848 Mr. Carpenter was admitted to practice by 
 the supreme judicial court of Massachusetts, and the same year removed 
 to Beloit, Wisconsin, where he opened an ofifice. He was almost wholly 
 destitute of means, and the beginning of his professional career was 
 further embarrassed by a recurrence of the disease of his eyes, which be- 
 came so serious as to make it necessary for him to go to New York for 
 treatment. For over a year he was almost wholly blind, and it was two 
 years, or thereabouts, before he could use his eyes to any practical 
 extent. 
 
 In 1852 Mr. Carpenter was the candidate for district attorney of 
 Rock county. The election was contested, and the case was taken to 
 the supreme court, where it was decided in his favor. The case is a 
 leading one in the reports, and Mr. Carpenter himself had occasion to 
 cite it when he was arguing the cause of Bashford vs. Barstow. The 
 appearance of Mr. Carpenter in this important cause, involving no less 
 a question than the possession of the governorship of the state, is an 
 evidence of the standing that he had attained when he had barely closed 
 the third decade of his life. He was associated with eminent counsel. 
 
402 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 but it seems to have been left to him to project, and mainly defend the 
 principle upon which Governor Barstow resisted the writ of quo war- 
 ranto filed in behalf of the contestant Bashford. His position was that 
 the three branches of the state government are co-ordinate, and that it 
 was not competent for the supreme court to pass upon the lawfulness 
 of the incumbency of the executive office. The decision of the court 
 was adverse, but Mr. Carpenter's argument will none the less impress 
 the professional reader as ingenious and powerful. 
 
 Mr. Carpenter removed to Milwaukee in 1856. He was for a num- 
 ber of years engaged in the intricate and embarrassing litigation arising 
 out of the construction and consolidation of certain railroads in Wis- 
 consin, and maintained the rights of his clients with great ability and 
 persistency. His practice was now large, and as lucrative as his rather 
 easy financial habits could make it; and his fame was rapidly extend- 
 ing. When a case arose that involved the determination by the supreme 
 court of the United States of the constitutionality of the reconstruction 
 acts. Secretary Stanton retained him as one of the counsel for the gov- 
 ernment. His argument won for him general recognition as one of 
 the foremost constitutional lawyers of his time, and it is scarcely ex- 
 travagant to say that the civil governments existing to-day in eleven 
 states of the Union rest upon the principle enunciated and supported 
 by him on that occasion. 
 
 In 1876, for the first time, happily, in the history of the repubhc, a 
 cabinet minister, in the person of W. W. Belknap, secretary of war, was 
 impeached before the senate of the United States for high crimes and 
 misdemeanors in office. The respondent retained for his defense Jere- 
 miah S. Black, ex-attorney general; Montgomery M. Blair, ex-post- 
 master general, and Mr. Carpenter. There could have been no higher 
 compliment to Mr. Carpenter than the fact that his associates, who had 
 stood for years in the very front rank of the American bar, resigned to 
 him the entire management of the case, which he conducted to a suc- 
 cessful issue. 
 
 The trial of the title to the presidency of the United States before 
 the electoral commission, erected for the purpose by special act of Con- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 403 
 
 gress, was another occasion that enlisted the best professional talent in 
 the Union. Mr. Carpenter was retained by Mr. Tilden to submit an 
 argument in favor of counting the votes of the democratic candidates 
 for electors in Louisiana, and he performed the duty with the ability 
 that he never failed to bring to bear upon questions of this important 
 and delicate character. 
 
 We have thus sketched imperfectly some of the most conspicuous 
 appearances of Mr. Carpenter, strictly in the character of a lawyer. 
 They by no means fairly represent the character or extent of his pro- 
 fessional labors. From 1870 to his decease, though maintaining a resi- 
 dence at ^Milwaukee, he kept an office at Washington, and practiced 
 mainly before the supreme court of the United States; and his services 
 were retained in very many of the most important cases that have been 
 heard before that tribunal. 
 
 Mr. Carpenter had been a democrat from the time that he attained 
 his majority, and in the election of i860 supported Douglas for the 
 presidency. Upon the attempt of the south to destroy the Union, with- 
 out formally dissociating himself from that party, he gave his support 
 to the war policy of the administration, and delivered a series of 
 addresses in that behalf that were characterized by great eloquence and 
 patriotic fervor. Subsequently he publicly affiliated with the republican 
 party, and in 1869 was chosen to succeed James R. Doolittle in the 
 senate of the United States. 
 
 It is not proposed to dwell upon his political career. It should be 
 mentioned, however, that he was the author of the acts reconstructing 
 in some respects the federal courts and enlarging their jurisdiction to 
 the limits prescribed by the constitution. He was twice chosen presi- 
 dent pro tempore of the senate, and pi-esided over that body during 
 several sessions, in discharging which duty he exhibited thorough learn- 
 ing and aptitude as a parliamentarian. 
 
 At the expiration of his term, Mr. Carpenter was nominated by the 
 caucus of republican members of the legislature for re-election, but was 
 defeated by a combination of certain republican members with the 
 democrats. In 1879 he was chosen to succeed Timothy O. Howe in the 
 
404 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 United States senate, and took his seat again in that body after an in- 
 terval of four years. It may be worthy of remark in this connection 
 that his celebrated "Janesville speech" was the great cause of his defeat 
 in 1875; yst he considered that the best speech he had ever made, and 
 carefully preserved a printed copy of it. 
 
 His return to Washington after his re-election to the senate was 
 signalized by a popular demonstration that illustrated forcibly the en- 
 thusiastic feeling, for which admiration is a cold term, in which he was 
 held among those who had come to know him even by casual contact. 
 
 His most conspicuous effort during his second senatorial term was, 
 perhaps, his argument in the case of General Fitz John Porter. Senator 
 Logan, in a long and laborious speech, had reviewed the facts. Mr. 
 Carpenter confined himself to the questions of law. With the impreg- 
 nable logic and irresistible aptness of illustration that characterized him 
 in dealing with legal issues, he combatted the pending bill. The result 
 was notable. The friends of the bill had a clear majority when the 
 debate was opened. After Senator Carpenter's argument they put for- 
 ward their two ablest champions to reply. Both failed, and they did not 
 deem it expedient to press the measure to a vote. The instances are 
 rare in the history of legislation where a measure having the undivided 
 support in its inception of the members of the majority party, rein- 
 forced Ijy some members of the minority, has been thus balked by a 
 single speech. 
 
 In June, 1880, Senator Carpenter attended the republican national 
 convention at Chicago, though not as a delegate, and addressed an 
 open-air mass meeting that was called to promote the nomination of 
 General Grant. But his health was greatly impaired, and he was not able 
 to remain in Chicago till the close of the convention. In the campaign 
 that followed his condition made it impossible for him to participate. 
 When Congress assembled in December he was in his seat, but his attend- 
 ance was irregular, and it was evident that the inexorable disease from 
 which he was suffering was advancing rapidly to its dread consum- 
 mation. His death occurred on the 24th of February, 1881. The grief 
 that it inspired knew no boundaries in geography or partisanship, and 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 405 
 
 the rush of events incident to the approaching incoming of a new 
 national administration could not benumb the deep sense of bereave- 
 ment that reached the remotest confines of the repubUc. At the next 
 meeting of the judiciary committee of the senate of the United States 
 the following resolution was adopted: 
 
 "During a period of nearly eight years' service on this committee, 
 Senator Carpenter's intellectual ability, profound legal learning and re- 
 markable industry commanded the admiration of all who served with 
 him, while his uniformly courteous, kind and agreeable manners won 
 and retained their affection." 
 
 The bar of the supreme court of the United States assembled on the 
 8th of March. Allan G. Thurman was chosen to preside, and, in taking 
 the chair, delivered an address of high, if discriminating, eulogy, in the 
 course of which he used this language, which could be justified on few 
 occasions of like character: 
 
 "I am well aware of the proneness to extravagance that has too often 
 characterized eulogies of the dead, whether delivered from the pulpit, 
 in the forum, or in the senate-house. But I feel a strong conviction 
 that, however exalted may be the praise spoken here to-day, it will not 
 transcend the merits of its object, or offend the taste of the most 
 scrupulous and truth-loving critic. 
 
 "Mr. Carpenter's whole career was honorable and brilliant. He was 
 the architect of his own fortune and fame. He possessed the advant- 
 ages of inherited poverty, and was thus in his youth thrown upon his 
 own resources. He learned early the useful lesson of self-reliance, and 
 the necessity of industrious self-exertion, receiving only such aid as his 
 genial manners and bright and active mind gained from those generous 
 friends who perceived in his youth the germs which promised future 
 distinction and who were willing to extend a helping hand to struggling 
 genius. He was a close student and loved books. 
 
 "Mr. Carpenter possessed a fine person, was social, pleasant, and 
 winning in his manners. As a speaker he was fluent, logical and elo- 
 quent, and possessed in a high degree the charm of manner and mag- 
 netic power over his hearers which are essential elements of popular 
 26 
 
4o6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 oratory. He delighted and captivated popular audiences; but his oratory 
 was not of the flowery and superficial kind. He was a man of learning 
 and thought. He not only pleased by his style and manner, but his 
 reasoning convinced his hearers. His independence of thought and 
 character sometimes led him to advocate that side of questions which 
 was unpopular with the people or with his party;* and he was fearless 
 in supporting any cause which he undertook to advocate. He defended 
 Credit IMobelier and back pay. He acted as one of the leading counsel 
 for General Belknap, on his impeachment and trial before the United 
 States senate; and he appeared as one of the leading counsel for ^Ir. 
 Tilden in the great contest for the presidential office before the electoral 
 commission. His nature was genial, kindly and generous; he had no 
 malice in his composition, and he did not excel in that lowest order of 
 intellectual ability which impels its possessor to the use of invective and 
 vituperation. The taste for such displays of his intellectual powers was 
 wholly foreign to his nature, and perhaps fortunately beyond his 
 ability. But in his whole public career, in the courts, in the senate, and 
 in the popular discussion of political questions, he was animated in a 
 larger degree with a spirit of chivalry, tempered l)y the elevating culture 
 of 'modern civilization,' which throws a halo of honor and fame around 
 the physical warfare of those knights of the middle ages who l^ecame 
 famous for their prowess in battle and for their generous forbearance 
 in the hour of victory.'" 
 
 The remarks of ^Ir. Jeremiah S. Black are given in full, not only on 
 account of the standing of the speaker at the bar, but because of his 
 peculiar intimacy with ^Mr. Carpenter and his s}stematic and accurate 
 knowledge of his ability and character. 
 
 "The American 1)ar has not often suffered so great a misfortune as 
 the death of ]\Ir. Carpenter. He was cut ofif when he was rising as 
 rapidly as at any previous period. In the noontide of his labors the 
 night came wherein no man can work. To what height his career might 
 have reached, if he had lived and kept his health another score of years, 
 can now be only a speculative question. But when we think of his great 
 wisdom and his wonderful skill in the forensic use of it, together with 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 407 
 
 his other qualities of mind and heart, we cannot doubt that in his left 
 hand would have been uncounted riches and abundant honor, if only 
 length of days had been given to his right. As it was, he distanced his 
 contemporaries and became the peer of the greatest among those who 
 had started long before him. 
 
 "The intellectual character ,of no professional man is harder to 
 analyze than his. He was gifted with an eloquence peculiar to himself. 
 It consisted of free and fearless thought, given through expression 
 powerful and perfect. It was not fine rhetoric, for he seldom resorted to 
 poetic illustration; nor did he make a parade of clenching his facts. 
 He often warmed with feeling, but no bursts of passion deformed the 
 symmetry of his argument. The flow of his speech was steady and 
 strong as the current of a great river. Every sentence was perfect; every 
 word was fitly spoken; each apple of gold was set in its picture of silver. 
 This singular faculty of saying everything just as it ought to be said 
 was not displayed only in the senate and in the courts, — everywhere, in 
 public and private, on his legs, in his chair, and even lying on his bed, 
 he always 'talked like a book.' 
 
 "I have sometimes wondered how he got this curious felicity of dic- 
 tion. He knew no language but his mother tongue. The Latin and 
 Greek which he learned in boyhood faded entirely out of his memory 
 before be became a full-grown man. At West Point he was taught 
 French and spoke it fluently; in a few years afterward he forgot every 
 word of it. But perhaps it was not lost; a language or any kind of liter- 
 ature, though forgotten, enriches the mind as a crop of clover plowed 
 down fertilizes the soil. 
 
 "His youth and early manhood was full of the severest trials. After 
 leaving the military academy he studied law in Vermont, and was 
 admitted, but conscientiously refused tO' practice without further prepa- 
 ration. He went to Boston, where he was most generously taken into 
 the office of Mr. Choate. He soon won not only the good opinion of 
 that very great man, but his unqualified admiration and unbounded 
 confidence. With the beneficence of an elder brother, Choate paid his 
 way through the years of his toilsome study, and afterward supplied 
 
4o8 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 him with the means of starting in the west. The bright prospect which 
 opened before him in Wisconsin was suddenly overshadowed by an 
 appalling calamity. His eyes gave way, and trusting to the treatment 
 of a quack, his sight was wholly extinguished. For three years he was 
 stone-blind, 'the world by one sense quite shut out.' Totally disabled 
 and compassed round with impenetrable darkness, he lost everything 
 except his courage, his hope, and the never failing friendship of his 
 illustrious preceptor. Supported by these he was taken to an infirmary 
 at New York, where, after a long time, his vision was restored. Subse- 
 quent to these events, and still under the auspices of ]\Ir. Choate, he 
 returned to Wisconsin and fairly began his professional life. 
 
 "It would be interesting to know what effect upon his mental char- 
 acter was produced by his blindness. I believe it elevated, refined and 
 strengthened all his faculties. Before that time much reading had made 
 him a very full man; when reading became impossible, reflection 
 digested his knowledge into practical wisdom. He perfectly arranged 
 his storehouse of facts and cases, and pondered intently upon the first 
 principles of jurisprudence. Thinking with all his might, and always 
 thinking in English, he forgot his French, and acquired that surprising 
 vigor and' accuracy of English expression which compels us to admit 
 that if he was not a classical scholar, he was himself a classic of most 
 original type. 
 
 "He was not merely a brilliant advocate, learned in the law, and 
 deeply skilled in its dialectics; in the less showy walks of the profession 
 he was uncommonly powerful. AVhether drudging at the business of 
 his office as a common-law attorney and equity pleader, or shining as 
 leader in a great nisi prius case, he was equally admirable, ever ready 
 and perfectly suited to the place he was filling. This capacity for work 
 of all kinds was the remarkable part of his character. AA^ith his hands 
 full of a most multifarious practice he met poHtical duties of great mag- 
 nitude. As a senator and party leader he had burdens and responsibili- 
 ties under which, without more, a strong man might have sunk. But 
 this man's shoulders seemed to feel no weight that was even incon- 
 venient. If Lord Brougham did half as much labor in quantity and 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 409 
 
 variety, he deserved all the admiration he won for versatility and 
 patience. 
 
 "Mr. Carpenter's notions of professional ethics were pure and high- 
 toned. He never acted upon motives of lucre or malice. He might 
 take what he called a bad case, because he thought that every man 
 should have a fair trial; but he would use no falsehood to gain it; he 
 was true to the court as well as to the client. He was the least mer- 
 cenary of all lawyers; a large proportion of his business was done for 
 nothing. 
 
 "Outside of his family he seldom spoke of his religious opinions. He 
 was not accustomed to give in his experience, — never at all to me. He 
 firmly beheved in the morality of the New Testament, and in no other 
 system. If you ask whether he practiced it perfectly, I ask in return: 
 Who has? Certainly not you or I. He was a gentle censor of our 
 faults; let us not be rigid with his. One thing is certain, his faith in his 
 own future was strong enough to meet death as calmly as he would 
 expect the visit of a friend. Upwards of a year since his physicians told 
 him that he would certainly die in a few months; and he knew they 
 were right; but with that inevitable doom coming visibly nearer every 
 day, he went about his business with a spirit as cheerful as if he had a 
 long lease of life before him. 
 
 "I think for certain reasons that my personal loss is greater than 
 the rest of you have suffered. But that is a 'fee grief due to my particular 
 breast.' It is enough to say for myself, that I did love the man in his 
 lifetime and do honor to his memory now that he is dead." 
 
 The obsequies consequent upon the death of Senator Carpenter at 
 Washington, and subsequently at Milwaukee, were grand and im- 
 posing; at the latter city almost the entire population were out on the 
 occasion. Among the distinguished members of the committee of the 
 senate who escorted the body to Wisconsin was Roscoe Conkling, upon 
 whom it devolved to formally transmit the sacred trust to the care of 
 the authorities who assumed the charge. On this occasion that dis- 
 tinguished gentleman made use of the following beautiful sentiment, 
 addressing Governor William E. Smith: "Deputed by the senate of 
 
410 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the United States, we bring back the ashes of Wisconsin's iUustrious 
 son, and tenderly return them to the great commonwealth he served so 
 faithfully and loved so well. To Wisconsin this pale and sacred clay 
 belongs, but the memory, the services, and the fame of Matthew Hale 
 Carpenter are the" nation's treasures, and long will the sister states 
 mourn the bereavement which bows all hearts to-day." To this Gover- 
 nor Smith appropriately and feelingly responded. Mr. Carpenter was 
 buried in the beautiful Forest Home Cemetery in the suburb of Mil- 
 waukee, April TO, 1 88 1. 
 
 The writer who shall attempt to analyze the life, talents and char- 
 acter of Matt. H. Carpenter will perhaps find a key in the proposition 
 that he was above all else a lawyer. This fact formed his moral con- 
 stitution. It accounts for some of the most notable achievements and 
 some of the errors that his most elaborate biographer will be called upon 
 to record. His best speeches in the senate were delivered when he had 
 to deal with legal questions and such as called for the essentially lawyer- 
 like method of discussion. When the occasion arose for a broader grasp, 
 and for a manner of treatment that may be called statesmanlike, in con- 
 tradistinction to lawyer-like, he was sometimes disappointing. More- 
 over, he seems at times to have expended less effort in keeping his 
 party right than in showing how ingeniously it could be defended when 
 it was wrong. 
 
 Mr. Carpenter's brilliant success at the bar and his conspicuous ser- 
 vices in the arena of national legislation won for him a more than con- 
 tinental reputation, and attracted to him in a high degree the attention 
 of his fellow-countrymen, so that in his day he was one of the most con- 
 spicuous of Americans. It is the fate of all who occupy so prominent 
 a place in the public eye to be the subject of some popular delusions, and 
 Mr. Carpenter did not escape. One of these is deserving of correction 
 for the benefit of younger members of the profession. This impression 
 assumed him to have been a gifted man of indolent habits, and his most 
 eloquent utterances and most profound arguments to have been the 
 easy products of something which it is common to call genius. Nothing 
 can be farther from the truth. In his case, as it may be suspected in most 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 411 
 
 cases, genius is the capacity and willingness to work sixteen hours out 
 of the twenty-four. Mr. Carpenter did not fail. to comply with the con- 
 ditions prescribed by the great Roman lawyer, and dedicated twenty 
 }-ears to nocturnal studies. He was an indefatigable worker, and not- 
 withstanding the thoroughness of his equipment and the readiness with 
 which he commanded the best weapons in his arsenal, he devoted 
 labored preparation to every cause in which he enlisted. It is to be 
 wished that this may have some influence in impressing upon the young 
 lawyers of ^\'isconsin that the profession reserves its highest rewards 
 for those who "scorn delights and spend laborious days." 
 
 On this subject G. W. Hazelton said in a memorial address delivered 
 before the Milwaukee bar that if any one doubts Mr. Carpenter's "mar- 
 velous industry, let him examine the reports of the federal courts and 
 the court of Wisconsin for the past thirty years. He worked out his 
 results as a judicial student, as the artist works out his conception from 
 the quarried marble. He burnt the midnight oil over his cases. He left 
 no field unexplored which could shed light upon his path, and so, with 
 the aid of a mind naturally bright and comprehensive and a strong physi- 
 cal organization, he pressed his way by the most earnest application and 
 thorough study, step by step to the front rank of a noble but exacting 
 profession. He has not left behind him a more diligent, a more devoted 
 student in the profession. The secret of his success at the bar may be 
 inferred from what has already been said, but it will not be improper, I 
 trust, to refer to some of his mental traits. He possessed the ability to 
 grasp the strong points of a case, and great readiness and skill in analyz- 
 ing and distinguishing, as well as applying, the vital principles or doc- 
 trine of cases cited in support of or in opposition to the case under con- 
 sideration. In this particular he was conspicuous and masterly. His 
 subtle insight, his legal acumen, his ready ingenuity were never dis- 
 played to a better advantage than when he was seeking to trace a legal 
 deduction which he desired to establish from a mass of apparently con- 
 flicting authorities. In this field, I venture to suggest he has left behind 
 him no superior. To the qualities already mentioned should be added 
 the potency of a marvelous personal magnetism, and a wit which seemed 
 
412 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 to be as much a part of himself as the fragi-ance is part of the rose. A 
 wit, moreover, be it said to his credit, as free from mahce as it was 
 spontaneous and happy. It was displayed in private conversation, in 
 the court room, in the senate chamber, and everywhere to the delight 
 of his auditors. It was as sparkling as the choicest wine, and always 
 coined upon the instant. 'Put him out!' shouted a friend of the 
 senator, when some one near the door interrupted the speech he was 
 making with an impertinent inquiry. 'No,' retorted Carpenter, in- 
 stantly, 'don't put him out, change his drink!' During the delivery of 
 the so-called 'Janesville speech,' the effect of which was a matter of 
 some anxiety to Mr. Carpenter, a confusion occurred at the rear of the 
 hall which diverted the attention of the audience for a moment from 
 the speaker. Turning to the chairman with a quizzical expression and 
 an inquiring tone, he said: 'Mr. Chairman, I observe some confusion 
 near the door; I have been endeavoring to determine whether it is oc- 
 casioned by those outside trying to get in or those inside trying to get 
 out.' A moment later he was dashing along on the current of his 
 thought, like a yacht before the wind." 
 
 Among the many notable public efforts made by Mr. Carpenter 
 he considered his celebrated Janesville speech the best he ever made; 
 yet it is none the less true that the effect of this very speech, which was 
 published at that time, was the means of defeating his re-election to the 
 United States Senate in 1875. 
 
 As an evidence of the foresight of ■Mr. Carpenter it may, in justice to 
 his memory, be said that he was one of the earliest to prognosticate 
 the railroad monopoly that is now upon the country, and delivered an 
 address upon that subject in 1874. 
 
 A. R. R. BUTLER. 
 
 The mere details of the career of this distinguished lawyer may be 
 briefly stated. He was the eldest son of Dr. A. R. R. Butler, of the 
 state of Vermont, an eminent physician of his day, and was born in that 
 state on the 4th day of September, 1821. In the following year his 
 father moved to Genesee countv in the state of New York, where the 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 4^3 
 
 rion, after a thorough academic education studied law and subsequently, 
 at the city of Buffalo, completed his course of study and was admitted 
 to the bar in the year 1846. Upon his admission he determined upon 
 the city of Milwaukee for his future home and there entered upon the 
 practice of his profession in the autumn of that year. At that time the 
 city of Milwaukee hadbut recently been incorporated and contained a 
 population of about nine thousand. He has since resided there and 
 has witnessed, participated in and contributed to the growth and ad- 
 vancement of the city. At the outset of his professional career he had 
 for competitors and as opponents in forensic strife those intellectual 
 giants, Edward G. Ryan and Jonathan E. Arnold, and therein acquitted 
 himself with honor, early establishing a reputation for ability, studious 
 care and strict discharge of duty that won him high rank in the pro- 
 fession. In the )'ear 1849 he was called to the office of district at- 
 torne}', holding the position for six years and performing its duties with 
 ability and success. He conducted the prosecution of several criminal 
 cases which attained wide celeljrity, either in connection with or in op- 
 position to the distinguished lawyers named, and proved himself their 
 peer in debate and in clear and vigorous presentation of the law. At 
 th? conclusion of his last term of office as district attorney he engaged 
 in the general practice of his profession, declining all political prefer- 
 ment, except that, in the year 1866, he was persuaded to serve a term 
 in the legislature of the state, and in the year 1876 he yielded with re- 
 luctance to the general desire that he should become mayor of the city, 
 to which position he was elected without opposition. He retired from 
 active practice in the year 1874 with a competence secured by prudent 
 investments and by frugal living. He still survives to enjoy life — otium 
 cum dignitate — not, however, in the least degree abating his interest 
 in the profession which has been to him his chiefest delight. He was 
 frequently urged by eminent members of the bar to accept judicial 
 office — on one or two occasions that of chief justice of the supreme 
 court — but he declined the proposed honors, preferring his place at the 
 bar to official position, however high. 
 
 In personal appearance Mr. Butler is of erect and commanding 
 
414 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 mien, grave and dignified in carriage, gentle and pleasant in all social 
 relations, without undue familiarity. He impresses one as a man who 
 marks out his way with deliberation and with caution and, having 
 determined the course, pursues it with energy and persistence. 
 
 It has been truly stated that "The fame of the advocate is ephemeral, 
 fading with the memories of those who heard him. We write the 
 record of our lives upon the sand, the incoming *tide of a succeeding 
 generation blots out the record forever." And so it must be with re- 
 spect to Mr. Butler's fame. The masterful pleas addressed by him to 
 the court and jury during his thirty years of active professional life 
 have unfortunately failed of permanent record, except as briefly noted in 
 the reports of the supreme court of the state. His wonderful magnetic 
 power in delivery, his intensity of conviction in the justice of the cause 
 he represented, the forceful presentation of his propositions and the 
 dramatic fervor with which he pressed them home to conviction upon 
 the minds of court and jury, are retained only in the fading memories 
 of his few surviving contemporaries and of those' — now past middle 
 life — who sat at the feet of this legal Gamaliel to drink in inspiration 
 of their profession. But perhaps better and more enduring than such 
 exhibition of masterful power of advocacy is the example of his pro- 
 fessional life with respect to the ethics of his profession. He relied 
 not upon the inspiration of the moment. He made ready his cause 
 with thoroughness and thoughtfulness, sparing neither time nor labor in 
 its preparation. He was self-contained, self-reliant, never taken un- 
 awares. He passed his word of promise with slow and cautious delib- 
 eration, but the promise, once given, was inviolable. He looked for 
 success — and he looked not in vain — in the ability to perform and in the- 
 conscientious performance of the professional duty committed to him. 
 He deprecated the more recent methods of securing practice which in- 
 tense competition has introduced, as undignified and unprofessional, 
 tending to lower the noble profession of the law to a mere trade or 
 business. AA'ithdrawn these many years from active professional pur- 
 suits, he yet survives, a bright example of a noble, able, learned lawyer 
 and eloquent advocate, entertaining and illustrating in his professional 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 415 
 
 life those old-fashioned traits of honor and decorum which unhappily 
 in present professional life seem to have lost some of their potency. 
 In private life he is the kindly, courteous, considerate Christian gentle- 
 man, commanding the respect, the esteem and the love of his ac- 
 quaintances. Jas. G. Jenkins. 
 
 JEDD P. C. COTTRILL. 
 
 Jedd Philo Clarke Cottrill was born in Montpelier, Vermont, April 
 15, 1832. He received an academic and collegiate education, having 
 graduated from the Uni\'ersity of Vermont in 1852. For a time he 
 «as teacher in the common schools and an academy of his native 
 state. His preparatory legal education was received in the oi^ce of 
 Peck & Colby, a distinguished firm of practitioners doing business in 
 the town of his birth. In 1854 he was admitted to the bar, and in No- 
 vember, 1855, removed to Milwaukee and entered the then firm of 
 Butler & Buttrick, his name appearing as the junior member; later the 
 firm became Butler & Cottrill, and later yet a new firm was organized 
 as Cottrill & Cary, A. L. Cary being the second named. This firm 
 was subsequently changed to Cottrill, Cary & Hanson, Burton Han- 
 son being the new member. After the dissolution of this firm Mr. Cot- 
 trill formed a partnership with Vincent H. Faben. 
 
 In 1865-66 Mr. Cottrill was district attorney of Milwaukee county. 
 During the years 1867 to 1870 he resided in New York. In 1875 he 
 was appointed by the justices of the supreme court a member of the 
 commission to revise' the statutes. "In the revision of the statutes, 
 besides compiling several chapters, his great work was the annotation 
 of the decisions of the supreme court to the section construed. Bench 
 and bar ha\'e yet failed to discover an error in this work by him per- 
 formed."* In 1882 Mr. Cottrill was elected to the state senate as a 
 democrat and served in the sessions of 1883 and 1885. At this period 
 his health had begun to fail and his services to the state were less valu- 
 able than they would otherwise have been. His illness was prolonged 
 and terminated February 8, 1889. On the following day the Milwau- 
 
 *E. E. Chapin, Esq., in his address to the United States circuit court. 
 
4l6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 kee bar association met to take action on his death, and Messrs. J. W. 
 Cary, Samuel Howard, Francis Bloodgood, Sr., A. R. R. Butler and 
 B. K. Miller were designated a committee to report resolutions of re- 
 spect. After reciting some facts concerning Mr. Cottrill, the tribute 
 adopted by the association expressed that he had been regarded 
 as a prominent and leading member of the Milwaukee bar. "He 
 has been engaged in a great part of the important litigation in this 
 state for the last thirty-four years; ... of a strong mind and 
 l3right intellect, thoroughly grounded in the principles of the law and 
 possessed of a ready and forcible manner of expressing his ideas, he 
 \vas no mean opponent of the oldest and ablest members of the pro- 
 fession. His close, discriminating mind enabled him to see the weak 
 IDoints of his adversary, and he was not slow in taking advantage of 
 them. Of a cheerful and social turn and a mind well stored with in- 
 formation, he was an agreeable and entertaining companion as well as 
 an able lawyer. Of an affectionate and kindly nature and popular man- 
 ners, he was esteemed a general favorite among his acquaintances." 
 
 This memorial was presented to the supreme court by Samuel 
 Howard; to the United States circuit court by Emmons E. Chapin; to 
 the Milwaukee circuit court by Burton Hanson, and to the ^^lilwaukee 
 superior court by George E. Sutherland. Mr. Chapin said in part: 
 "Not often are we called to mourn the loss of one so remarkably gifted 
 and generally beloved; one who illustrated and adorned his profession by 
 ripe scholarship and legal learning; one who occupied a large place in 
 the public confidence; one whose future promised still greater honor to 
 himself and greater usefulness to the commonwealth when stricken by 
 paralysis a few short years ago. 
 
 "Nature had done much for Brother Cottrill; she had endowed him 
 plentifully with brotherly love, truth, charity, justice and mercy. She 
 had given him at the outset abundantly of human love and human 
 sympathy, aye, she had given him a human heart. These natural 
 qualities were adorned by a liberal, polished education. With such a 
 foundation he was well qualified for the profession which he so loved and 
 honored. 
 
.HISTORY OF THE BENCH AND BAR OF WISCONSIN. 417 
 
 "He lived in and by the practice of the law. He was no speculator. 
 He supported himself and his family while he was mentally and phys- 
 ically strong in a most honorable practice of the law. He was honest, 
 well-willed, constant and sincere in all his works. 
 
 "What he once said of a brother lawyer I may now say of him: 
 '^^^hile he was firm and uncompromising, especially against any proof 
 or suspicion of wrong, and while he held to the rights of his cHent 
 and what he believed to be the right of the case with unyielding 
 tenacity, his manner was never offensi^'e. His practice of the law was 
 honorable to him and to the profession. He advised away from 
 rather than towards litigation. He recommended friendly compromise 
 and amicable adjustment rather than suits or controversy. He saw but 
 the interests of his client, and in so doing was blind to every personal 
 and selfish consideration. His personal life was the counterpart and 
 reproduction of his professional life. He could not be different as a 
 man from what he was as a lawyer.' " 
 
 Samuel Howard, Esq., addressed the court orally upon Mr. Cot- 
 trill's life work. In response to their addresses Judge James G. Jenkins 
 said: "The court has received with sensibility the formal announce- 
 ment of the death of one who for more than a quarter of a century 
 stood among the foremost in the ranks of a bar that is honored to 
 count among its members a Ryan, an Arnold, a Lynde. It is well 
 when such a one has passed into the great unknown that those who in 
 life were his professional associates should take action upon his death 
 and make permanent record of his work and character. 
 
 "So far as relates to his professional life the court cordially concurs 
 with all that you, Mr. Chapin, and you, Mr. Howard, have so well and 
 so feelingly said of Mr. Cottrill. There was perhaps no other member 
 of the bar capable to sustain the continued labor in which Mr. Cottrill 
 indulged. Indeed, work seemed for him a normal condition of life, 
 and recreation was looked upon by him with regret as a consumption of 
 time that should be devoted to labor. He was rapid and accurate in his 
 work, disposing of a volume of business with an ease and rapidity that 
 was astonishing. He had none of the graces of oratory; none of that 
 
4l8 HISTORY OF THE BENCH AND BAR OF WISCONSIN. * 
 
 suaviter in modo that wins through popularity, appeahng to sentiment, 
 but he was possessed of that fortiter in re that compels conviction in 
 unwilling minds. He relied for success upon the probative force of 
 his facts and upon a correct apprehension of the law; not upon appeals 
 to passion or prejudice. He was always strongr because he first con- 
 vinced himself of the justice of the cause committed to his keeping. 
 He was diligent to ascertain and carefullogically to array and present 
 his facts, and he pressed them home upon the mind with all the 
 strength of ah earnest, positive nature convinced of their truth. And 
 therein consisted the secret of his success as an advocate. Grace of 
 .manner and beauty of diction may charm the fancy; but facts and their 
 forcible presentation by one persuaded in his own mind can alone com- 
 pel conviction. No counsel can succeed who doubts the justice of his 
 cause. To convince others, one must be first himself convinced. 
 
 "Mr. Cottrill's conception of the duty owing by counsel to client was 
 of the highest type. He stood for his client against the world without 
 thought of personal gain or loss. He would yield nothing that he 
 deemed essential to the interests of his client. He was steadfast to his 
 duty, uncompromising and unyielding. At the same time he recog- 
 nized the duty of opposing counsel to be equally immovable. Innately 
 and thoroughly honest, he abhorred fraud and wrong and prosecuted 
 them with relentless vigor. He was devoted to his profession. He- 
 conceived it to be the highest of all the learned professions, because 
 'charged with the earthly administration of the justice of God.' He was 
 jealous of its good name and fame, and was not tolerant to any act of 
 its members that tended to disgrace an honorable calling. His research 
 and presentation of the law was painstaking, thorough, discriminating, 
 greatly aiding the court in the consideration and solution of the question 
 presented. He was not always right, for infallibility is not an attribute 
 of counsel or of courts. But he always thought he was right and 
 tenaciously held to an opinion once deliberately formed. He seldom 
 recognized the correctness of an adverse judgment. He co.uld not. 
 He submitted, but was not convinced. 
 
 "In all professional labor he was careful, thorough, discriminating. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 419 
 
 able, persistent. In professional conduct he was upright and honor- 
 able. Through a long period of yeai's he was faithful to his high calling; 
 faithful to the duty it enjoined; faithful to its trusts. 
 
 "He was also a kind-hearted, generous man. Grief or pain or want 
 would touch him to the quick. Seldom is it that one finds such qual- 
 ities so centered in one man. Almost dogmatic in opinion, unflagging 
 in energy, unrelenting in purpose, unyielding in duty, merciless toward 
 wrong, he had the heart of a child, responding to every touch of human 
 sufifering or human want. His friendships were not many, but were 
 strong and stable. His devotion to and pride in his native state were 
 phenomenal. His love for the place of his birth and the scenes and 
 companions of his youth knew no weakening or abatement from sepa- 
 ration. To the last the green hills of A'ermont were to him an in- 
 spiring memory. His affections — as his purpose — were deep, strong 
 and abiding." 
 
 On April 25th, 1889, Mr. Howard presented the memorial of the 
 ^Milwaukee bar to the supreme court, and delivered a carefully prepared 
 and admirable address, from which the following extracts are made. 
 Referring to the facts that a few }-ears after Mr. Cottrill came to Wis- 
 consin the code of procedure was adopted, and that old law\'ers looked 
 with suspicion and distrust upon the radical innovation thereby made 
 in the practice, he said that the subject of this sketch "grasped the 
 spirit of the system at once. With the vigor of the earnest student he 
 mastered it. He became the leading code lawyer, without a rival and 
 without a peer. For years he was engaged in three-fourths of the im- 
 portant litigation of our city. Not alone the code, he was master of 
 the comomn law, ]:)Oth ci\-il and criminal. His training had been such 
 and his brain so active that he seemed to subdue with ease every sub- 
 ject he examined. His memory was a marvel. Not so much a memory 
 of words as of acts and ideas. In this he was very much like Hor- 
 tensius, the polished lawyer in the latter days of the Roman republic. 
 If I should be asked if I could name a man who could have written the 
 story of the ten thousand Greeks, after the march, with all its details 
 and philosophical reflections, from the start with Cyrus, the death of 
 
420 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Clearchus, the plains, the villages, the rapid rivers, the vision, the moun- 
 tain of snow, until the whole army was electrified by the shout of the 
 sea! the sea! I should say Mr. Cottrill could have done it. He was 
 a rapid and skihful worker. His mind kept even pace with the motion 
 of his pen and in unison ^^•ith it. When absorbed in drawing a difficult 
 pleading he rarely consulted statute or authority." He would write 
 page upon page of dif^ficult work without a single erasure or inter- 
 lineation. While a student in his office I have seen him draw pleadings 
 as rapidly as I could copy them. 
 
 "Above all things, Mr. Cottrill was a lawyer born, not made. He 
 was a lawyer in the strict definition of the word. He was a philo- 
 sophical lawyer, one who searches for the origin of legal principles. He 
 was a student of jurisprudence, of philosophy, history, science, poetry, 
 music and the arts. He could draw from the very source of learning 
 when the occasion needed it to fortify his cause. He might be likened 
 unto Sulpicius, who reduced the principles of law to a science. With 
 Mr. Cottrill, the lawyer was above the advocate. It could be said of 
 him that he was more of a lawyer than an advocate. He was at his 
 best before the court. His manner was earnest and his language chaste 
 and always at command. And when the subject demanded it, he might 
 be called in his argument an eloc[uent civilian, a term so fondly used by 
 Cicero. He was too good a lawyer to be placed with the advocate. 
 The business of the advocate is to impress by his voice and manner 
 and style and delivery; of the lawyer, to convince by the power of 
 reason." 
 
 Mr. Justice Taylor responded to the memorial and address. He 
 said in part: "As a member of the bar of this court Mr. Cottrill stood 
 deservedly high. When he first began his practice in this court he had 
 to contend with those able, clear-headed and vigorous-minded men 
 who composed the pioneer members of the legal profession in this state, 
 whose love of justice and right aided this court in laying the founda- 
 tion of the judicial system of the state upon correct and sound principles 
 of law and justice; he also had to contend with those men, coming later, 
 who brought to the bar of this state more learning and the culture of 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 421 
 
 the schools, with perhaps an equal amount of mental vigor and more 
 persistent labor. 
 
 "Mr. Cottrill had, as a lawyer, one characteristic which entitled him 
 to great credit. He was always strictly loyal to his client's cause. 
 When he took the cause of his client he took it without a doubt in his 
 own mind as to its justice. 
 
 "While this spirit of loyalty kept him firm in the belief of the right- 
 fulness of his client's cause it did not render him Wind to the position 
 of the opposite counsel or lead him to treat with contempt his argu- 
 ments or his cause. Having faith in the justice of the cause he advo- 
 cated, his principal effort was to aid the court in getting a clear con- 
 ception of his client's side of the controverted questions, without 
 spending much time in combating the positions taken by his adversary. 
 He was content to> present one side of the case, and that side was always 
 the side of his client. 
 
 "I had the good fortune to be associated with Mr. Cottrill for over 
 two years in the work of the revision of the statutes of this state, and 
 during that time had an opportunity to learn some of the mental 
 characteristics of the deceased. He always exhibited a clear concep- 
 tion of the nature of his work, and he clearly apprehended the relations 
 of the separate parts of the statutes to the statutes as a whole. This 
 readiness on his part to comprehend the relation of things was a very 
 great aid in giving consistency and unity to the revision. 
 
 "Although nature had endowed him with mental tendencies which 
 impelled him to the investigation of many subjects, especially those 
 which relate to government and social relations, he was always able to 
 control this tendency toward diversified labor, and concentrate his ener- 
 gies upon that which for the time being demanded his particular atten- 
 tion. During my association with him I learned that the deceased was 
 a conscientious man, that he aimed to do right, and that if he at times 
 erred, his errors were errors of judgment and not of the heart." 
 
 27 
 
422 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 WILLIAM PITT LYNDE. 
 
 From 1 84 1 until 1885 William Pitt Lynde was an honored member 
 of the Wisconsin bar; during much the greater portion of that time he 
 was recognized as a lawyer of great learning and ability and during the 
 whole period as a man of the highest character. 
 
 Mr. Lynde was born at Sherburne, New York, December 16, 1817. 
 His parents were natives of Massachusetts and removed to Sherburne 
 in 1800. The father was engaged in mercantile pursuits. Mr. Lynde's 
 preparatory education was obtained at Hamilton academy and Court- 
 land academy in his native state. He was a student at Hamilton col- 
 lege two terms, entering there in 1834; entering the sophomore class 
 of Yale college, he completed his course and graduated with the highest 
 honors of his class in 1848. He is said to have excelled as a student 
 in the ancient languages and to have been especially proficient in 
 Greek. Soon after graduation he entered the law department of the 
 University of New York and had for instructors Benjamin F. Butler, 
 David Graham and Chancellor Kent. He finished his legal education 
 at Harvard, under the instruction of Story and Greenleaf, and was 
 graduated in 1841. In the same year he was admitted to the New 
 York bar and in the fall started for and arrived at Milwaukee. In 1842 
 he formed a partnership with Asahel Finch, Jr., which continued until 
 1857, when H. M. Finch and B. K. Miller, Jr., became members; as 
 thus constituted the firm continued until Mr. Lynde's death. The 
 date of his admission to the bar of the supreme court of Wisconsin 
 was July 17, 1843. 
 
 During the almost half century of Mr. Lynde's residence in Milwau- 
 kee he was highly honored by his fellow-citizens and the officers of the 
 government. He served as president of the village; was attorney gen- 
 eral of the territory in 1844, and United States district attorney from 
 1845 till the admission of the state, resigning the former office to ac- 
 cept the latter. In 1848 he was elected a member of Congress and 
 served until March, 1849; in 1850 he was mayor of Milwaukee; in 1859 
 
Al(__ 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 423 
 
 he was the democratic candidate for associate justice of the supreme 
 court, but was defeated by Byron Paine, the vote being 40,500 against 
 38,355; he served in the popular house of the legislature in 1866; in the 
 state senate in 1869 and 1870; was elected to Congress in 1874 and again 
 in 1876, and served therein as a member of the judiciary committee 
 and as one of the managers of the Belknap impeachment trial.. The 
 memorial of the Milwaukee bar, prepared by Messrs. J. W. Gary, E. 
 Mariner, F. W. Cotzhausen, E. E. Chapin and Jas. G. Flanders, 
 says of Mr. Lynde's official life that he "was an able and leading mem- 
 ber" of the Congresses to which he was chosen "and acquitted himself 
 with great credit in the debates on the important matters considered 
 by them, and was highly esteemed by his fellow-members and the coun- 
 try generally as an able and safe legislator. His course as assembly- 
 man and senator for the state of Wisconsin was always dignified and 
 honorable and his action in the right direction. His administration of 
 the affairs of the city, as mayor, was able, clean and without any stain of 
 dishonesty or jobbery; and his discharge of the duties of attorney gen- 
 eral and district attorney of the United States was able and skillful and 
 tended greatly to enhance his professional reputation and standing." 
 
 Mr. Lynde's health was almost uniformly good until within a few 
 months of his death, which occurred at his home in Milwaukee, Decem- 
 ber 18, 1885. The memorial referred to continues: "Although the of- 
 fices held by our deceased brother were numerous, important, and 
 highly honorable, and their duties were discharged by him with honesty 
 and ability, yet it was as a lawyer and member of our profession that 
 his greatest success was attained, his greatest triumphs won, and his 
 most enduring reputation secured. It was in his profession that he 
 felt the greatest pride and to it were given his best study and efifort. No 
 other member of our association can boast of a professional life in Mil- 
 waukee of over forty-four years' continuous practice, and very few of 
 our profession are ever permitted to spend that number of years in 
 the active practice of law. The extent and importance of the business 
 entrusted to his firm, during the many years of its continuance, justly 
 entitled it to be considered the leading law firm of the city and state, 
 
424 HISTORY OF THE BENCH AND BAR OF WISCONSIN.. 
 
 as it in fact was. His law office and law firm were not only the oldest 
 in the city, but the oldest and most extensively known in the state. 
 His learning and ability, in connection with his associates, has estab- 
 lished a reputation and business for his firm of great value and a rich 
 inheritance for his successors. Few, if any, lawyers in the state were 
 as well read as Mr. Lynde. He had a thorough knowledge of the juris- 
 prudence of the country, was conversant with the text books and re- 
 ports, and well equipped in all branches of the law. He was not only 
 well posted in his profession, but was a thorough scholar on general 
 subjects, and to a considerable extent kept up his classical studies. 
 Some twenty-five years ago Mr. Lynde was in the habit of daily spend- 
 ing some portion of his time in reading Greek from the original, in 
 which exercise he took great pleasure, and was frequently found en- 
 gaged in it at his office. He took a lively interest in all charitable 
 enterprises and organizations for the benefit of the human family. In 
 all social relations of life he was affable, kind and courteous to all and 
 was universally esteemed and respected. Mr. Lynde belonged to the 
 Presbyterian church, of which he was a faithful and consistent member, 
 supporter and attendant during all his life in Milwaukee.* One of his 
 first acts on reaching the city was a subscription to a fund for the pur- 
 chase of the original site of the First Presbyterian church, and at the 
 time of his death and for many years previous he was one of the ruling 
 elders. He was catholic and liberal in his religious views, and popular 
 with other denominations. 
 
 "Our brother, who for so many years presided over this organiza- 
 tion, has left us; his labors are ended, and he has gone to his reward; 
 
 *A writer in the Magazine of Western History says that Mr. Lynde was an ear- 
 nest, active churchman because he was a sincere believer. He had subjected the 
 Scriptures to a searching analysis, and weighed the evidence bearing on their in- 
 tegrity and veracity in the serene altitudes of his judicial mind, and had not found 
 them wanting. An impromptu utterance of his has fortunately been preserved which 
 illustrates the stability of his convictions on the subject. A question of skeptical 
 import arose in the family circle one day, and when it was the opportune time for 
 him to speak he said: "Judged by all the rules of evidence, there is no fact in history 
 nor any truth in philosophy more clearly demonstrated than is the divine verity of the 
 life and teachings of Christ." 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 4^5 
 
 but he has left us the record of his pure and unspotted Ufe, his high 
 character and learning, his uniform kindness and courtesy in all his 
 intercourse with the members of the bar and in all relations of life, and 
 the example of his noble and manly efiforts for success in his chosen 
 and loved profession, in which he was so greatly distinguished and suc- 
 cessful." 
 
 The memorial of the Milwaukee bar association was presented to 
 the supreme court May 27, 1886, by John W. Gary, who made an ad- 
 dress. S. U. Pinney also addressed the court. On behalf of his as- 
 sociates Mr. Justice Orton said: ■ 
 
 "It has been my good fortune and is now one of the most pleasing 
 memories of my hfe to have known Mr. Lynde since his early youth 
 and to have been intimately acquainted with him in Wisconsin for more 
 than forty years. I may therefore, without undue assumption, speak 
 from actual knowledge of his character and his worth. The courts, the 
 bar, and the people of Milwaukee and of the state at large, and this 
 court and its bar, in his death have met with a great and irreparable 
 loss. As a lawyer and profound jurist, as a statesman and safe coun- 
 selor, as a great thinker and finished scholar, as a gentleman of business 
 and adviser of business men, as a pure, benevolent, generous and high 
 minded citizen, and as a husband, father, friend, neighbor and Christian 
 gentleman he was pre-eminent. These words of praise and commenda- 
 tion are not the mere idle expression of the cold and common charity 
 for the dead, but the sincere and truthful utterances of a long-established 
 and well-grounded common opinion and public sentiment of his true 
 character, uninfluenced by his sad and sudden departure. What might 
 have been unseemly or offensive words of flattery to the living may now 
 well be spoken in his praise, so well merited and deserved. Flattery 
 cannot soothe the dull, cold ear of death, but such a pure and noble ex- 
 ample cannot be too highly commended to the living. 
 
 "It is seldom that there has been a human life more useful, finished 
 and complete. He was guilty of no waste of time or neglect of oppor- 
 tunity. From his early manhood, as a pioneer in the early settlement 
 of the state, to the end, his life work has consisted of good deeds and 
 
426 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 faithful public service, well known to our people and needing no special 
 enumeration. He is as well known as the history of the state, of which 
 his life and services formed so large a part. That man has not lived in 
 vain, but has accomplished all that was possible in human Hfe, who has 
 assisted in laying the foundations, framing the institutions, and deter- 
 mining the destinies of a great state, and by his sounsels and labors 
 aided in shaping its policies, enacting and administering its laws, and 
 after holding and honoring many of its highest offices as public trusts 
 and performing faithfully every duty in all of his official, professional 
 and personal relations, has left such a pure and noble example and an 
 unsullied name. From the beginning he attained high rank in his pro- 
 fession, and his practice in the courts, both state and national, has air 
 ways been large, lucrative and important. His professional as well as 
 his personal character was evenly balanced and symmetrical, and his 
 mental faculties were evenly and equally developed. He had no eccen- 
 tricities of character or conduct, no startling surprises or episodes, no 
 wild flights of fancy or vagaries of the imagination, no theoretical ex- 
 periments or legal adventures. He pursued the even tenor of his way, 
 not on a plane, but upwards, ever advancing towards the true end of his 
 aspirations. His perceptive and reasoning faculties predominated, and 
 with his great learning and clear observation he had well considered 
 opinions and reliable judgment upon all matters of important concern. 
 "His profound knowledge of the law and studious preparation of his 
 causes, his clearness and ability in argument, and his unbiased and con- 
 scientious perception of legal and moral truth and right, his inflexible 
 and unbending integrity, his kindly and even tender feeling towards 
 •others, his urbane and courtly manners and gentlemanly bearing, the 
 high respect and honor in which he cherished our noble profession, and 
 his uniform courtesy and candor towards the courts and his legal asso- 
 ciates were his conspicuous and most admirable characteristics. Mr. 
 Lynde was remarkable for the uniformity of his life. His personal ap- 
 pearance changed but little with his years, and that so gradually as to 
 be scarcely observable, and his age only added to his wisdom and 
 capabilities. His years had been comparatively many, but he was still 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 427 
 
 in that unimpaired maturity and ripeness of experience and judgment 
 when his usefulness and abilities were the greatest, and his death the 
 greatest loss. He had sufifered affliction and trials and had been puri- 
 fied in the crucible of human experience from all dross and grosser ele- 
 ments of our nature, and his character was like fine gold. He had not 
 survived his activities and capabilities for still greater usefulness, nor yet 
 the hope and prospect of still higher honors. His pathway was a bright 
 and shining one, and all may see and follow it!" 
 
 JOHN R. SHARPSTEIN. 
 
 While resident in Wisconsin Mr. Sharpstein was active and promi- 
 nent, having been district attorney of two counties, state senator. United 
 States district attorney, newspaper editor, postmaster, superintendent 
 of schools and member of assembly. After changing his residence to 
 California he became, first, judge of a district court, and then an as- 
 sociate justice of the supreme court. 
 
 John R. Sharpstein was born in Richmond, Ontario county. New 
 York, May 3, 1823. His family settled on a farm about twenty-five 
 miles from Detroit, Michigan, when he was twelve years of age; there 
 he resided until he was admitted to the bar in 1847. His education 
 was obtained in the schools and other institutions of learning in the 
 vicinity of his residence. Immediately after admission he removed to 
 and located in Sheboygan county, Wisconsin. In the spring of 1848 
 he was appointed district attorney to fill a vacancy caused by the resig- 
 nation of David Taylor. Early in 1849 he took up his residence in 
 Southport, now Kenosha, and opened a law ofifice there. The next year 
 he was elected district attorney; his stay there was very brief. In 1852 
 and 1853 he was state senator from Milwaukee. In May, 1853, he was 
 appointed United States district attorney, a position he held until 1857, 
 when he resigned. While occupying that ofifice he was closely con- 
 nected with the important case of Ableman vs. Booth, which ran the 
 gauntlet of the state and United States supreme courts. In 1856 Mr. 
 Sharpstein became the proprietor of the Milwaukee News, the editorial 
 control of which he retained about six years. In 1857 he was appointed 
 
428 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 postmaster of Milwaukee. The senate refused to confirm his nomina- 
 tion, hence his service in that capacity covered but little more than one 
 year. In i860 he was a delegate to the democratic national conven- 
 tion, and was a firm supporter of Mr. Douglas. In the spring of 1862 
 he was appointed superintendent of schools in Milwaukee, which ofifice 
 he resigned to take his seat in the popular branch of the legislature in 
 the session of 1863. For about a year after the adjournment of the 
 legislature he was in partnership with H. L. Palmer, of Milwaukee, in 
 the practice of the law. His health became seriously affected by the cli- 
 mate and in 1864 he' removed to California and engaged in the practice 
 of the law in San Francisco. In 1874 he was appointed to fill a vacancy 
 in the bench of the twelfth district court, and in 1879 was elected an as- 
 sociate justice of the supreme court. In making the allotment of terms 
 he drew the three-year term, but in 1882 he was re-elected for a term 
 of twelve years. While holding that office he died December 27, 1892, 
 after a brief illness. The proceedings in the supreme court commemo- 
 rative of his life, including the resolutions of the Milwaukee bar asso- 
 ciation adopted just prior to his removal from Wisconsin, are pub- 
 lished in vol. 96, California reports, page 675. 
 
 BENJAMIN KURTZ MILLER. 
 BY W. W. WIGHT. 
 
 Andrew Galbraith Miller removed with his family from Gettysburg, 
 in his much honored native state of Pennsylvania, to the village of Mil- 
 waukee, in May, 1839. On November 8, 1838, President Martin Van 
 Buren had appointed Mr. Miller an associate justice of the supreme 
 court of the territory of Wisconsin,* and his removal hither, undertaken 
 in the following spring, was in consequence of this appointment. 
 
 In the decades before railways it was a journey of more than twenty 
 days from the capital of the Keystone state to the new home which the 
 Millers were seeking in Wisconsin. A lad of eight years, a son of Judge 
 Miller, just mentioned, and of Caroline E. (Kurtz) Miller, his wife, Ben- 
 
 *Wisconsin Historical Collections, VII, 463; i Finney's Reports, 36, 50. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 429 
 
 jamin Kurtz by name, participated in this long itinerary, enjoyed its 
 novelties and braved its hardships. This son was born in Gettysburg, 
 Pennsylvania, May 6, 1830, and received the name of his maternal 
 grandfather, Benjamin Kurtz. The father of this last came to America 
 from Germany as a missionary to that stalwart Lutheran emigration 
 from the Palatinate, which peopled the fairest valleys of the American 
 Atlantic waterways at the expense of the valleys of the Rhine and of the 
 Neckar.t 
 
 When the Millers arrived in Milwaukee, May 10, 1839, the village, 
 excluding the west side of Kilbourntown, contained scarcely one thou- 
 sand inhabitants. t The subject of this sketch, who for now almost 
 sixty years has known no other home than Milwaukee, has seen his 
 adopted municipality become a metropolis of more than a quarter of a 
 million people. Few, very few, now survive therein, whose recollec- 
 tions span so extended a period of the city's existence or are so graph- 
 ically narrated. Mr. Miller's boyhood comforts and luxuries were pork 
 and salt-beef; his daily stints were in primitive schools; his Sunday in- 
 struction in no broad-aisled churches; he saw severed from their roots 
 the forest trees that flourished where the postofihce now stands; he fol- 
 lowed Indian trails which, from all directions, focused at the trading 
 tents of George H. Walker and Solomon Juneau; he knew the Huron 
 street hlufi, then fifty feet above the water level, as the burial place of the 
 Pottawatamies; the old frame courthouse upon the square was a fa- 
 miliar object; the government lighthouse in the center of Wisconsin 
 street met his daily gaze; to his boyish recollections the third ward, 
 south of Michigan street and West Water street, were water, and half 
 of the fifth ward was a marsh. 
 
 But opportunity and occasion for different and broader knowledge 
 came with his approaching maturity. Mr. Miller's father, who was a 
 graduate of Washington college, Pennsylvania, in the class of 1819,* 
 was anxious for like educational preferment for his son. The latter, 
 
 tCobb's "The Story of the Palatines." 
 
 tThe first census of Wisconsin was taken in 1836. Milwaukee upon the east 
 side then had 778 inhabitants. Buck's "History of Milwaukee," I, 262. 
 *i Pinney, 49. 
 
430 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 therefore, was fitted for college, having the private instruction of the 
 Rev. Alfred L. Chapin, D. D., later the president of Beloit college(i). 
 Mr. Miller entered the freshman class of Washington college in 1846, 
 pursuing the classical course. He continued a student at that institu- 
 tion until nearly the close of his junior year. Being then, to use his 
 own expression, "too poor to continue," he returned home. 
 
 He began immediately the study of law under the tutelage of his 
 father, Judge Miller, who, on June 12, 1848, upon the admission oi 
 Wisconsin to statehood, had been appointed by President James K. 
 Polk judge of the district court of the United States for the district of 
 Wisconsin(2). Mr. George S. West, the clerk of this court, appointed 
 Mr. Miller deputy clerk August i, 1848. Under his father's instruc- 
 tion and with the advantages arising from contiguity to the courts Mr. 
 Miller's advancement was uninterrupted, and he was admitted to the 
 bar May 6, 1851, upon the day that he became twenty-one years of age. 
 On. July 10, 1851, upon the resignation of Mr. West, and upon the 
 recommendation of the ablest lawyers then in practice, Mr. Miller was 
 promoted to be clerk of the same court(3). The United States court 
 room was then in the fourth story of Martin's block, on the southeast 
 corner of Wisconsin and East Water streets(4), and Mr. Miller's home 
 was then with his father at the northeast corner of Wisconsin and 
 Jackson streets(5), the present residence of Dr. N. A. Gray. 
 
 While Mr. Miller was clerk of the district court he affixed his name 
 olificially to the warrant which, on July 11, 1854, issued for the arrest <of 
 Sherman M. Booth "for aiding and abetting and assisting the escape 
 
 (i) Dr. Chapin began to preach in Milwaukee — in the basement of the First 
 Presbyterian church — May I, 1843. He was president of Beloit college from 1850 to 
 1886, and died in Beloit, July 22, 1892. Wight's Old White Church, 16, 21. 
 
 (2) I Pinney, 50. 
 
 (3) The petition for his appointment was signed by N. J. Emmons, E. G. Ryan, 
 George W. Lakin, L. H. Cotton, James S. Brown, Samuel Crawford, J. E. Arnold, 
 Thomas Hood, H. S. Orton, and Asahel Finch. The sureties on Mr. Miller's official 
 bond were George S. West and Cyrus Hawley. 
 
 (4) Milwaukee Directory, 1851, 1852, page XXXI. 
 
 (5) Milwaukee Directory, 1851, 1852, page 106. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 43^ 
 
 of Joshua Glover from the custody of" a deputy marshal(6). The liti- 
 gation in the highest state and federal courts which followed this arrest 
 became causes celebres in the jurisprudence of the United States(7). 
 
 As clerk of the United States district court Mr. Miller served for 
 almost six years, until his resignation on February 2, 1857. One in- 
 stance, among others, of that good citizenship which has always been 
 one of his characteristics, belongs to this period. He was one of the 
 incorporators, in 1852, of the Young Men's Association of Milwaukee. 
 Under this designation and under other names this institution had led 
 a precarious life for a number of years, making frequent appeals to the 
 public for its support(8). During Mr. Miller's directorship and with his 
 active promotion the association was incorporated(9), and thus placed 
 upon a basis of permanence. For twenty-five years the Young Men's 
 Association was an important factor in the literary development of 
 Milwaukee, and only yielded up its influence when a still wider field of 
 activity presented itself. Its Hbrary of about twelve thousand volumes 
 became the nucleus of the Milwaukee Public Library, which was formed 
 March 8, 1878(10). 
 
 Mr. Miller's resignation as clerk of the United States district court 
 had been occasioned by his entering, in January, 1857, into a partner- 
 ship for the practice of law — a partnership which continued undissolved 
 for more than a quarter of a century. 
 
 The firm of Finch & Lynde had been established in Milwaukee in 
 1842, composed of Asahel Finch and WilHam Pitt Lynde(ii). This 
 
 (6) Ex parte Sherman M. Booth, 3 Wisconsin, 146. 
 
 (7) See Re Booth, 3 Wisconsin, i; ex parte Booth, 3 Wisconsin, 145; Re Booth 
 and Rycraft, 3 Wisconsin, 157; United States vs. Booth, 18 Howard, 477; Ableman 
 vs. Booth, 18 Hovv'ard, 479; United States vs. Booth, and Ableman vs. Booth, 21 
 Howard, 506; Ableman vs. Booth, and United States vs. Booth, 11 Wisconsin, 498; 
 Arnold vs. Booth, 14 Wisconsin, 180. 
 
 (8) Thus, in the Milwaukee Sentinel of January 25, 1848: "The Young Men's 
 Association has appointed a committee to wait upon the young men of the city gen- 
 erally to obtain their signatures to the constitution of the association." 
 
 (9) Laws of 1852, chapter 97, approved March 8, 1852. 
 
 (10) Under authority of Laws of 1878, chapters 6 and 7. 
 
 (11) Western Historical Company's "History of Milwaukee," 666. 
 
432 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 firm was an aggressive force in Milwaukee for nearly fifteen years. 
 On January i, 1857, it opened(2) to receive as partners Henry Martyn 
 Finch, a nephew of the senior member, and Benjamin K. Miller, each of 
 the four to receive one quarter of the net earnings. The new firm was 
 first entered in the city directory as "Finch, Lynde & Miller, attys., 6 
 and 8 Albany building"(3). But its second appearance in the direc- 
 tory(4) was in the form of Finches, Lynde & Miller, a name which be- 
 came very familiar to the profession throughout the city and state, 
 which as the firm designation remained unchanged until 1890 and 
 which as a historic legend is still lettered upon the ofifice doors. In a 
 sketch of Mr. Asahel Finch, published(5) in 1881, his firm was stated to 
 be "not only the oldest law firm in the city, but the oldest in the 
 United States." 
 
 Prior to the establishment of this partnership Mr. Miller, on Septem- 
 ber 3, 1856, married Isabella Peckham. This lady was the daughter of 
 George W. Peckham, a banker and a lawyer in Milwaukee. As a banker 
 he had been the president of the Bank of Commerce; in the profession 
 he had been for a time a partner of Francis Bloodgood (6). Mr. Peckham 
 built a family residence on Marshall street, south of Division street (now 
 Juneau avenue), which in or about 1863 became by purchase the home- 
 stead of his spn-in-law, Mr. Miller. Much rebuilt and modernized (7) it 
 
 (2) Buck's "History of Milwaukee," II, 96. 
 
 (3) Erving, Burdick & Co.'s Directory for 1857, 1858, page 78. The Albany stood 
 on the southeast corner of Michigan street and Main street, now Broadway. It waB 
 destroyed by fire March i, 1862. 
 
 (4) Smith, DuMoulin & Co.'s Directory for 1858, page 79. 
 
 (5) Western Historical' Company's "History of Milwaukee," 666. 
 
 (6) Mr. Peckham was brother of Mrs. Henrietta L. Colt, mother of Mr. Blood.- 
 good's wife, Josephine M. Bloodgood. Mr. Peckham was father of Geo. W. Peck- 
 ham, librarian of the Milwaukee Public Library. Also, he was brother of Judge 
 Rufus W. Peckham, of New York, who was father of Wheeler H. Peckham, of New 
 York, and of Rufus W. Peckham, formerly judge of the court of appeals of New 
 York, now justice of the supreme court of the United States. ' 
 
 (7) Buck's "History of Milwaukee," IV, 116. In the interval between his mar- 
 riage and his purchase of the Peckham house Mr. Miller had resided on Cass street, 
 near Division street. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 433 
 
 is Still, as number 559 Marshall street, Mr. Miller's dwelling. Here hi.'s 
 wife, the mother of his three surviving sons, died June 10, 1864. On 
 February 19, 1869, Mr. Miller married Annie McLean Smith of St. John, 
 New Brunswick, the mother of his only daughter. 
 
 The law firm auspiciously established in 1857 became immediately 
 prosperous, and has absorbed much of Mr. Miller's attention until recent 
 years. Indeed, until very lately, he has shaken off but little responsi- 
 bility upon younger shoulders. The earliest case of the new firm re- 
 ported in the Wisconsin decisions was that of Elmore vs. Hoffman and 
 others(i), decided during the January term, 1858. Finches, Lynde 
 & Miller appeared for the defendants, appellants, and secured a reversal. 
 From that date onward for forty years but one volume of Wisconsin 
 decisions fails to contain reports of causes argued in the supreme court 
 of the state by them and by their successors. 
 
 The first break in this quartette was caused by the death, April 4, 
 1883, of Asahel Finch(2). In less than a year, on March 27, 1884, 
 Henry Martyn Finch died(3), and on December 18, 1885, died Mr. 
 Lynde(4). In the last narhed year Mr. Miller's two eldest sons — Ben- 
 jamin K. Miller, Jr., and George P. Miller — were admitted to the firm, 
 the name not changing. In 1890, upon the admission of George H. 
 Noyes (who retired from the position of judge of the superior court for 
 that purpose) the old name ceased to be actively employed. The desig- 
 nation became, and until 1892 continued to be. Miller, Noyes and Miller. 
 George H. Wahl having joined the partnership in that year, the name 
 has since been Miller, Noyes, Miller & Wahl. 
 
 As already intimated the clientage of the firm which began as 
 Finches, Lynde & Miller has always been large. The number of its 
 causes, litigated and otherwise, including the matters long since settled 
 and relegated to the "office morgue," has aggregated more than twenty 
 thousand. In many of these proceedings large pecuniary interests were 
 
 (i) 6 Wisconsin, 68. 
 
 (2) Buck's "History of Milwaukee," IV, 412. 
 
 (3) 60 Wisconsin, LXVI. 
 
 (4) 66 Wisconsin, XXIX. 
 
434 HISTORY OF THE BENCH AND BAR OP WISCONSIN. 
 
 involved, as well as important principles of law embodied. Especially 
 has this been so as regards the properties of decedents. The estates of 
 Governor Cadwalader C. Washburn, Alexander Mitchell, Edward H. 
 Brodhead, Nathan Engelmann, George Burnham, Eliphalet Cramer, 
 George W. Allen, Edward H. Ball, John G. Flint, George G. West, 
 Enoch Chase, Horace Chase and John Ogden are instances of the estates 
 which have passed through this office, the orderly and skillful handling 
 of which appertained to Mr. Miller. Indeed his specialty has always 
 been the office department of the firm's business. Rarely in court, still 
 more rarely personally engaged in the trial of a cause, Mr. Miller's 
 energies have found their most congenial activity, have realized their 
 most brilliant successes in the unraveling of tangled estates, in the solu- 
 tion of complicated questions concerning trusts, in the promotion of far 
 reaching business interests, in rescuing tottering firms from their too 
 greedy creditors, in negotiating peace among quarreling kinsfolk, in all 
 the varied diplomacy which would have made a large modern law office 
 the delight of a Tallyrand or a Metternich. 
 
 Mr. Miller has been counsel for interests, especially as to trusts, in 
 the estates of most of the wealthy citizens of Milwaukee; moreover, in 
 the days of the bankruptcy law, the transactions of the firm in that deli- 
 cate specialty were very important. The insolvent business of Pierce 
 & Whaling, the Milwaukee Iron Company, John Nazro, the Wisconsin 
 Leather Company, the Engelmann Transportation Company, and the 
 Rock River Insurance Company were settled by Mr. Miller's capable 
 hands. Besides these matters his firm represented the many creditors 
 holding bonds issued by the municipalities of Milwaukee, Racine, Ken- 
 osha, Janesville, Beloit, Sheboygan, Watertown, Fond du Lac, Osh- 
 kosh, Green Bay, in fine by every city or county in the state which put 
 out obligations in aid of railroads. As to railroads themselves, Mr. 
 Miller's firm were attorneys of the Milwaukee & Prairie du Chien 
 Railroad Company, the La Crosse & Milwaukee Railroad Company, 
 and the Milwaukee & Saint Paul Railroad Company before these cor- 
 porations as a united entity under a new name arrived at the dignity 
 of a special force of solicitors. In more recent years the same firm were 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 435 
 
 attorneys for the receivers of the Northern Pacific Railroad Company 
 until conflicting interests were adjusted and the road sold. Cases such 
 as Dows vs. National Exchange Bank of Milwaukee (i), Dows 
 vs. Wisconsin Marine and Fire Insurance Company (2), Scott vs. 
 West (3),^ Burnham vs. Burhham (4), McLaren vs. The First National 
 Bank of Milwaukee (5), Van Steenwyck vs. Washburn (6), The First 
 National Bank of Monroe vs. Edgerton (7), The Farmers' and Millers' 
 Bank of Milwaukee vs. Eldred (8), Blair vs. The Milwaukee & Prairie 
 du Chien Railroad Company (9), Price vs. Wisconsin Marine & Fire 
 Insurance Company (10), and Akerly vs. Vilas (11) are but examples 
 of the important causes argued by the advocates of this firm, where, 
 nevertheless, the public appearance in court was efficiently supple- 
 mented by the work and advice of the silent man in the office. 
 
 A lawyer thus absorbed in afifairs so congenial to his tastes finds little 
 leisure, however sincere his interest for public affairs. A democrat in 
 politics, Mr. Miller was keenly regardful of the momentous questions 
 which aroused the country and divided its citizens during his mature 
 years, yet he never sought or held political positions. For two terms 
 in 1872-3 and in 1873-4 he was alderman of the seventh ward of Mil- 
 waukee. Aside from this trust he has never held office (12). 
 
 It can well be imagined, however, that a lawyer so deft and ready 
 
 (i) 91 United States, 618. 
 
 (2) 91 United States, 637. 
 
 (3) 63 Wisconsin, 529. 
 
 (4) "jti Wisconsin, 557. 
 
 (5) id Wisconsin, 259. 
 
 (6) S9 Wisconsin, 483. 
 
 (7) 56 Wisconsin, 87. 
 
 (8) 20 Wisconsin, 196. 
 
 (9) 20 Wisconsin, 254, 262. 
 
 (10) 43 Wisconsin, 267. 
 
 (11) IS Wisconsin, 401; 21 Wisconsin, 88, 377; 23 Wisconsin, 207, 628; 24 Wiscon- 
 sin, l6s; 2S Wisconsin, 703. 
 
 (12) While an alderman he was one of a committee, of which were Mayor D. G. 
 Hooker, Alderman Levi H. Kellogg and Jacob Velten, of the board of public works, 
 besides himself, to examine the sewage system of St. Louis, Rochester, Brooklyn and 
 Chicago, with the view of selecting the most satisfactory system for Milwaukee. 
 Buck's "History of Milwaukee," IV, 227. 
 
436 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 in the orderly manipulation of affairs should be frequently sought for 
 the directory of large financial institutions. This has been pre-eminently 
 the case as respects Mr. Miller. He was a charter member of the Mil- 
 waukee Club and of the Hotel Pfister, and as a director took a leading 
 part in the erection of the two buildings — neighbors and neighborly to 
 each other — occupied by those two corporations. ^ Under a now aban- 
 doned regime, he was for a long period a director of the Milwaukee 
 Gas Light Company. He is a trustee and member of the executive 
 committee and of the finance committee of the Northwestern Mutual 
 Life Insurance Company, vice president of the Milwaukee Cement Com- 
 pany, director of the First National Bank of Milwaukee, director of the 
 Wisconsin Telephone Company and director of the Long Distance Tele- 
 phone Company. To the profitable and flourishing condition of the 
 corporations with which Mr. Miller is now actively connected his ener- 
 gies, wisdom and experience have largely contributed. 
 
 Nor have these quahfications been withheld from the service of in- 
 stitutions whose aims have been rather benevolent and educational than 
 for purposes of profit. Mr. Miller attended the meetings held at the 
 Newhall House preHminary to the organization of the Milwaukee 
 academy in August, 1864, and was a member and the first secretary of 
 its board of trustees. This school for the education of boys, which 
 became the Markham academy in the summer of 1877 (i), has always 
 had the benefit of Mr. Miller's active interest. For a long period he has 
 exerted a lively and practical influence over the affairs of the Wisconsin 
 general hospital and of the Wisconsin training school for nurses; he is 
 chairman of the gratuity fund of the Milwaukee Chamber of Commerce, 
 and is the president of the Milwaukee bar association. 
 
 The mention of this last position — fit recognition of the regard 
 entertained for Mr. Miller by his brethren of the profession — suggests 
 the recording of a recent graceful action by him for -the benefit of the 
 lawyers of Milwaukee. Although the firm, with which he has been and 
 is connected, has always paid careful attention to the completeness and 
 
 (i) Western Historical Company's "History of Milwaukee,'' 549. The original 
 name, Milwaukee academy, has again been adopted by this school. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 437 
 
 excellence of its professional library and has one of the largest and best 
 selected collections of reports and text books in the United States, yet 
 all its members have uniformly been interested in the Milwaukee law 
 library association. This Mr. Miller's firm assisted in organizing on 
 November i8, i860. The depth of Mr. Miller's regard, which has con- 
 tinued more than thirty-seven years, was shown at Christmas, 1895, 
 when, as a memorial of his deceased partners, Asahel Finch, William 
 Pitt Lynde and Henry Martyn Finch, he presented to the Law Library 
 Association the sum of five thousand dollars, to be applied in the pur- 
 chase of statutes, text books and digests to "make the library of greater 
 value to the members of the profession" (3). The result thus sought by 
 Mr. Miller has been accomphshed, as is evidenced by the increasing num- 
 ber of students, especially young lawyers, who now enjoy the privileges 
 of the books. A marble bust of Mr. Miller, executed by Trentanove and 
 presented by attorneys of Milwaukee to the association, now adorns 
 the rooms of the library. 
 
 Mr. Miller's rehgious affiliations have been with the Protestant 
 Episcopal Church. His father, Judge Miller, a Scotch Presbyterian by 
 descent (4), continued his attachment to the Presbyterian church when 
 he removed to Milwaukee. Judge Miller assisted in the reorganization 
 of the First Presbyterian church February 10, 1840 (5), and was a trustee 
 of the society of that church as late as February, 1844 (6). He joined 
 St. Paul's Episcopal church in 1849 (7)- His son, Benjamin K. Miller, al- 
 though by maternal descent of pronounced Lutheran stock (8), followed 
 his father into the Episcopal communion. He was for a long period a 
 warden of St. Paul's church, and his activity as well as taste was enlisted 
 
 (3) Extract from his letter of December 24, 189S, to Samuel Howard, president 
 of the Milwaukee Law Library association. 
 
 (4) Judge Miller Memorial Volume, page £. 
 
 (5) Wight's "The Old White Church," 12, 
 
 (6) As appears from his signature as trustee, under date of February 6, 1844, to 
 still existing bills of sale of pews in the First Presbyterian church. 
 
 (7) Miller Memorial Volume, page 18. 
 
 (8) Mr. Miller's maternal great-grandfather, the Rev. John Nicholas Kurtz, was 
 born in October, 1722, in the principality of Nassau- Weilburg, Germany, of an an- 
 cient Protestant family. He studied theology at Giessen and Halle, and in 1745 came 
 
 28 
 
438 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 in the erection of its present. stately edifice (9). He has also been one 
 of the managers of Forest Home cemetery, which was established in 
 1850 by the vestry of St. Paul's church, and is controlled by a committee 
 of that body. 
 
 As has before been suggested, Mr. Miller has never been an advo- 
 cate, a trial lawyer, in the courts. His work has been done, his power 
 exerted, his influence wielded, his success achieved, in the office. For 
 this quieter forum his mental qualities peculiarly fit him. Yet his part- 
 ners who contended at the bar and before the jury have gained con- 
 fidence for their conflicts and have added fibers to their eloquence by 
 consulting his judgment. Persons entrusting their perplexities to his 
 management and relying upon- his sagacity feel no sense of fear as they 
 roll upon him the burden of responsibility. Through all his career Mr. 
 Miller has been cool, conservative, careful, cautious, yet courageous. It 
 is probably true that as trustee, guarclian, executor, administrator — 
 and he often acts in these fiduciary capacities — he has never lost a dollar 
 of funds committed to his keeping. Loyal to the interests of his clients, 
 prompt in the settlement of affairs, frank in his dealings, fertile in re- 
 sources, versatile, firm, aggressive, self-assertive, an apt counselor, a 
 quick and skilled adviser, a faithful trustee, he is a brilliant type of that 
 increasing body of lawyers who find their highest success in the quiet 
 diplomacy of the office rather than in the uproar of litigation. 
 
 FREDERICK C. WINKLER. 
 
 Frederick C. Winkler was born in Bremen, Germany, March 15, 
 1838, where his parents, Carl and Elizabeth (Overbeck) Winkler, then 
 resided. In 1842 Carl Winkler emigrated to the United States and 
 
 to America as a licentiate missionary to the Germans in Pennsylvania. He was or- 
 dained to the ministry in 1748 — the first Lutheran minister ordained in the American 
 colonies. He died May 12, 1794. For the Kurtz family more at length, see Edle's 
 "History of Lebanon County, Pennsylvania;" "Library of Universal Knowledge," 
 sub nom. Kurtz; Hutter's "Eulogy on the Life and Character of Rev. Benjamin 
 Kurtz, D. D." 
 
 (9) From the last sermon preached by the rector of St. Paul's church in the old 
 building it appears that the first proposal to advertise for lots upon which to erect a 
 new church building was made by the junior warden, Mr, Miller, on January 8, 1881. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 439 
 
 settled in Milwaukee, where he entered the drug business. Two years 
 later his wife and children, including his oldest son, the subject of this 
 sketch, joined him in his new home. Having pursued such a course of 
 education as the schools of that day in Milwaukee afforded, the latter, 
 at the age of eighteen, commenced his law studies in the office of H. L. 
 Palmer. Two years later he removed to Madison, where he continued 
 to study in the office of Messrs. Abbott, Gregory & Pinney. He was 
 admitted to the bar at Madison on April 19, 1859. He then returned 
 to Milwaukee and began the practice of his profession, meeting with 
 success from the outset. In 1862, inspired by patriotism, a number of 
 young men who had grown up with him determined to offer their ser- 
 vices to tlie government. They proposed to raise a company, and 
 wanted him for their captain. The company was promptly recruited, 
 and became enrolled in the Twenty-sixth Wisconsin regiment. Young 
 Winkler, as captain of this company, entered the military service, in 
 which he continued to the end of the war. On October 6, 1862, the 
 regiment left the state for the front, going to Washington, and thence 
 to Fairfax Court House to be assigned to the Eleventh army corps 
 under General Sigel. 
 
 The abilities of Captain Winkler were utilized in the capacity of 
 judge advocate in successive courts martial through the winter and 
 spring. He went into the spring campaign, took part in the battle of 
 Chancellorsville, in May, 1863, and the battle of Gettysburg, July, 1863, 
 being attached to the staf¥ of General Schurz, division commander. 
 
 Immediately after the latter battle Captain Winkler returned to ser- 
 vice with the regiment. Both the lieutenant colonel and the major had 
 been wounded, and Captain Winkler was the ranking officer present for 
 duty next tO' the colonel. The regiment was shortly afterward trans- 
 ferred to the west, joining the army of the Cumberland at Bridgeport, 
 Alabama, in October, 1863. On the 8th of November, 1863, the colonel 
 left the regiment, and from that time on to the close of the war our 
 subject was in command of the Twenty-sixth regiment, being gradually 
 promoted to the rank of colonel. Under his command the regiment 
 took part, November 23, 24 and 25, 1863, in the engagement at Mission 
 
440 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Ridge; joined in the pursuit of the retreating rebels; then joined the 
 expedition for the relief of Burnside at Knoxville. In the spring of 1864 
 the Twenty-sixth Wisconsin was assigned to the third brigade of the 
 third division of the newly organized twentieth corps under Major- 
 General Hooker. The regiment took part in the four months' campaign 
 to Atlanta, with its many skirmishes and battles, and won reputation as 
 a first-class fighting regiment. 
 
 From Atlanta it marched with Sherman to the sea, thence across the 
 Carolinas to Goldsboro, taking prominent part in the battles of Averys- 
 boro and Bentonville. From Goldsboro, by way of Raleigh, Richmond 
 and Washington, where it participated in the "grand review," the regi- 
 ment proceeded to Milwaukee, where it was mustered out June 28, 1865. 
 In the adjustment of honors after the close of the war, Colonel Winkler 
 was brevetted Brigadier General of Volunteers by the war department. 
 
 He resumed the practice of his profession immediately after being 
 mustered out of the service. In 1867 he formed a partnership with 
 Mr. A. R. R. Butler, which continued until 1874, when the firm of 
 Jenkins, Elliott & Winkler was organized. Mr. A. A. L. Smith after- 
 ward became a partner, and still later Mr. E. P. Vilas ^yas admitted to 
 the firm. Upon the appointment of James G. Jenkins as a United 
 States district judge, the present firm of Winkler, Flanders, Smith, 
 Bottum & Vilas was organized. 
 
 In politics General Winkler is a stanch republican. 
 
 In 1864 he married Miss Frances M. Wightman, by whom he has 
 six daughters and three sons. 
 
 EPHRAIM MARINER. 
 
 Few lawyers in the state present such a remarkable combination of 
 business ability and legal acumen as Ephraim Mariner. He was born 
 at Penn Yan, Yates county, New York, on the 27th of March, 1827, 
 the son of Miles and Mellicent (Seelye) Mariner. Mr. Mariner's father 
 was a carpenter and contractor, a man of stanch character and of moderr 
 ate means. The matter of educating his children assumed- the first 
 importance in his mind. Consequently, Ephraim attended the public 
 

 C^.)7U:in^, 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 441 
 
 schools of his native town, finished preparing for college under the in- 
 struction of a private tutor, and in 1846 entered Hamilton college. He 
 was graduated from that institution in 1849, studying law in course and 
 as an extra study with the noted Professor Dwight. Subsequently he 
 entered the office of Evert Van Buren, a prominent lawyer of Penn Yan, 
 but becoming imbued with the western fever, decided to complete his 
 preliminary legal education and obtain a foothold in Milwaukee. To 
 this point he therefore came in 1850, and became a student in the office 
 of Coon & Hunter, being admitted tO' the bar during the succeeding 
 year (1851). 
 
 From that time to the present, with the exception of about five years, 
 Mr. Mariner has practiced alone. In 1852-3 he was associated with 
 Charles James, the firm being James & Mariner, and in 1872-6 he was 
 the senior member of the firm of Mariner, Smith & Ordway. Mr. 
 Mariner commenced his career as a general practitioner, but later, with 
 the development of the city, his unusual abilities in the fields of business 
 and finances led him to concentrate his energies upon the law as it 
 especially relates to real estate and corporations. And he not only 
 became identified in his legal capacity with the early railroads and 
 various real estate enterprises, but invested money with caution and 
 foresight. 
 
 Thus, at different times, Mr. Mariner has been connected with the 
 old La Crosse, the North-Western and the Milwaukee & Northern 
 railways. He has been a director of the First National Bank, of Mil- 
 waukee, and director and president of the Green Bay & Mississippi 
 Canal company. To those who know him best, it need not be said that 
 whatever Mr. Mariner has undertaken tO' do, has been accomplished 
 with faithfulness and thoroughness, and that, primarily, he is a man of 
 actions and one who attends strictly and successfully to whatever busi- 
 ness he has in hand. It may perhaps be superfluous to add that these 
 traits, which have ever been uppermost in his character, have brought 
 him both wealth and honor. 
 
 Mr. Mariner was married in November, 1850, to Lucinda Watkins, of 
 Waterloo, New York, by whom he has had two sons, William and John. 
 
442 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 DANIEL H. CHANDLER. 
 
 Daniel Hicks Chandler was the first reporter of the supreme court 
 of the state of AVisconsin. His four volumes cover the years 1849-52. 
 The fact that the cases reported by him have been re-reported by Mr. 
 Pinney causes his name to be less familiar to the lawyers of this genera- 
 tion than it would otherwise be. 
 
 Mr. Chandler was born in Granville, New York, October 20, 1795; 
 was admitted to the bar of the supreme court of that state in 1818. He 
 was a man and lawyer of prominence in Genesee county, New York, 
 having held there the offices of district attorney, master in chancery and 
 judge of the court of common pleas. He was strong both as a pleader 
 and advocate. It is said of him in a New York paper published soon 
 after his death that few lawyers were listened to at the bar of the old 
 supreme court and in the court of chancery with more respect. In the 
 political and social circles of "old Genesee" Judge Chandler long occu- 
 pied a foremost post, his unfailing kindness and good humor winning 
 and retaining for him hosts of personal friends. Few men were more 
 free from petty jealousies and animosities, and few leave behind them 
 a larger number of acquaintances who treasure and honor their memory. 
 
 Mr. Chandler came to Wisconsin as early as 1849, and settled in 
 Milwaukee. He is said by an eminent lawyer of that city to have 
 brought with him some reputation as a New York chancery lawyer. 
 He seems to have acquired a fair business in ^lilwaukee, judging from 
 the fact that his name appears as attorney in four cases in volumes two 
 and three of Pinney's reports. It may also appear in later volumes of 
 the AVisconsin reports. His death occurred ^larch 28, 1864, he then 
 being a patient in the state hospital. 
 
 S. PARK COON. 
 
 Squire Park Coon was born ]March 28, 1820, in the town of Coving- 
 ton, AA^oming county. New York. He was educated at a local academy 
 and at Norwich University, in A'ermont. He began the practice of the 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 443 
 
 law in his native state. In 1843 he located in Milwaukee and entered 
 upon the practice of his profession. He was the second attorney gen- 
 eral of the state, serving from January 7, 1850, until January 5, 1852; 
 he was also the district attorney of Milwaukee county in 1863-4. In 
 1862 he was appointed colonel of the Second Wisconsin regiment, but 
 did not long serve in that capacity; he served thereafter, for a time, on 
 General Sherman's staff. Mr. Coon died in a Milwaukee hospital, Octo- 
 ber 12, 1883. Whisky ruined him. A short time before his death he 
 was found in abject poverty, and but for the kindness of a few men who 
 knew him in earlier days would probably have died for lack of food and 
 attention. 
 
 ASAHEL FINCH, JR. 
 
 Asahel Finch, Jr., who passed away April 4, 1883, was at the time of 
 his death a member of the oldest law firm at the Milwaukee bar, his part- 
 nership with WilHam Pitt Lynde being probably the longest continued 
 law partnership in the history of the western bar. Entered into in 1842 
 the partnership between Mr. Finch and Mr. Lynde continued unin- 
 terruptedly for more than forty years, each of the partners achieving 
 unusual distinction at the bar of Milwaukee and attaining a high rank 
 among the lawyers of the state. Mr. Finch, who was a native of New 
 York state, was born at Genoa, Cayuga county, February 14, 1809, and 
 came of as brave and hardy a race of pioneers as ever contributed to 
 the upbuilding of new communities or commonwealths. His parents 
 came originally from Orange in the same state, but his paternal grand- 
 father resided in Pennsylvania and was one of the victims of that terrible 
 massacre which occurred in the Wyoming valley in 1778. 
 
 Reared in the midst of those rural environments which seem to con- 
 tribute in a remarkable degree to the development of the best type of 
 American manhood, inheriting from his ancestry high courage and in- 
 domitable will power, Asahel Finch, Jr., was admirably fitted by nature 
 for an active and useful career among the pioneers of the northwest. 
 His early education was received in the common schools of the neigh- 
 
444 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 borhood in which he was brought up, and in his young manhood he 
 attended school at Middlebury academy in Genesee county. 
 
 He was married, in 1830, near Rochester, New York, to Miss ]\Iary 
 De Forest Bristol, a native of Connecticut, and almost immediately 
 thereafter was carried westward with the tide of immigration as far as 
 Michigan. Locating at Tecumseh, he engaged for three years in mer- 
 cantile business, when, having a love for the law, he removed to Adrian, 
 and entered the office of Orange Butler of that city as a law student in 
 1834. ^^'hile reading law he took an active interest in pubUc affairs, 
 was elected to the Michigan legislature, and while serving in that body 
 aided materially in bringing about a settlement of the boundary line 
 dispute between Michigan and Ohio, which at one time threatened to 
 involve the two states in armed conflict. 
 
 He was admitted to the bar in 1838, and in the fall of the following 
 year he came to Milwaukee and began his professional career there, a 
 well-seasoned and well-informed man, whose experience as a man of 
 affairs had added materially to his qualifications for successful practice. 
 For a short time he was associated professionally with H. N. Wells and 
 Colonel Hans Crocker, under the firm name of Wells, Crocker & Finch, 
 and his first change of associates resulted in the formation of the part- 
 nership with Mr. Lynde, which continued up to the time of his death, 
 B. K. Miller and H. M. Finch becoming partners in the firm in 1857, 
 the firm thus constituted continuing in existence twenty-seven years 
 under the name of Finches, Lynde & Miller. 
 
 It is the judgment of Air. Finch's professional contemporaries, only 
 a few of whom are now living, that the firm of which he was for more 
 than forty years the head, had, during his life, as large, varied and im- 
 portant a law practice as any firm in the state or within the broader 
 limits of the northwest. The books of the firm, still preserved, testify 
 to the fact that during the four decades of his active practice the firm 
 had to do with more than ten thousand suits in courts of record, many 
 of them involving large amounts of money, valuable property interests 
 and important questions of law. Of Air. Finch's character and ability 
 as a lawyer and his worth as a man and a citizen, no more correct esti- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 445 
 
 mate could be made than found expression in the closing words of a 
 sketch of his cai-eer presented to the Wisconsin state historical society. 
 Writing of him in this connection, one who had known him intimately 
 for many years said: "For over forty years Mr. Finch was in constant 
 and successful practice, meeting not only all the able lawyers in the 
 west as opponents at the bar, but some of the most distinguished mem- 
 bers of the legal profession from the east who had been sent to^ Wis- 
 consin to look after the interests of non-resident clients. He seldom 
 found himself overmatched. He was always regarded as an able and 
 upright lawyer, with such a sense of justice, such a conscientious regard 
 for the right, and such a strict fidelity to the highest ideals, that it was 
 said of him that no amount of money could secure his services for the 
 wrong side. His professional habit gave the lie to the oft-repeated 
 assertion that a lawyer can be hired to undertake any kind of a case 
 provided the fee is large enough. He had no sliding scale of morality 
 that excused a member of the legal profession for doing what was con- 
 sidered dishonorable in other men. If the law made it a crime to secrete 
 stolen goods, he held it to be wrong to aid the real thief to escape by the 
 technicaHties and loop-holes of the statute. He was one of the kind 
 that could not be hired to defend a confessed criminal to defeat the ends 
 of justice. His conception of the proper function of jurisprudence in 
 modern civilization was to secure the highest good attainable by organ- 
 ized society. 
 
 "He had such an extensive practice that his clients were not im- 
 poverished by his charges after he had won their suits. He often re- 
 fused to prosecute poor men. He aided in the settlement of more dis- 
 putes by arbitration outside of the courts than any other man ever in 
 practice in Milwaukee. He often put aside large prospective fees for 
 himself and his firm by advising belligerent litigants to keep out of court. 
 Had Diogenes gone among the members of the bar with his lantern, in 
 search of an honest lawyer, he would have put out his light and returned 
 home satisfied after meeting Asahel Finch. 
 
 "In politics he was a whig, being once whig candidate for Congress, 
 and he always adhered to that party until it was dissolved after the dis- 
 
446 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 astrous defeat of General Winfield Scott in the well-remembered cam- 
 paign of 1852. He aided in the formation of the republican party when 
 the attempt was made to carry slavery into the new territories of the 
 west, under the Dred-Scott decision of the supreme court and the re- 
 peal of the Missouri compromise act, and supported John C. Fremont 
 for President in 1856. And when the south finally rebelled and at- 
 tempted to dissolve the Union by an appeal to the bloody arbitrament 
 of the sword, Mr. Finch supported the government with voice, pen and 
 purse to the best of his ability. 
 
 "When Mr. Finch settled in Milwaukee, religious societies were to 
 be organized out of the discordant elements that are always present in 
 new countries; churches were to be built with the scanty funds gathered 
 by the contribution box; preachers were sent out by home missionary 
 societies at the east, and the slow and tedious process of laying the 
 foundations of a great commonwealth was commenced. In all this grand 
 work Asahel Finch took an active and prominent part. Probably it is 
 safe to say that no layman ever set foot on the soil of Wisconsin who 
 helped the churches of all denominations, in proportion to his means, 
 as liberally as he. He was an early communicant of the Plymouth 
 church of Milwaukee, and for forty years was its steadfast friend, through 
 all its vicissitudes and trials, supporting it cheerfully with voice and 
 material aid. Although a strict Congregationalist and a stanch defender 
 of the democratic form of church government, he was neither bigot nor 
 partisan in religion, but recognized the upright man as his brother, no 
 matter how much his creed differed from his own. His donations for 
 the support of religion were scattered freely among all evangelical 
 denominations that needed help, and many an impoverished society was 
 indebted to his generosity for assistance in time of keen distress. His 
 public benefactions did not divert his attention from the claims of the 
 destitute in the humblest walks of life. He delighted in relieving the 
 wants of the poor without letting one hand know what the other did. 
 His good deeds are not all known except to the God" whom he tried to 
 serve; and like Abou Ben Adhem, he served Him best by 'loving his 
 fellow-men.' He never asked Who is my neighbor?' nor 'Am I my 
 
i; „-.tf c-_^ O^-'jj^irie":"; 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 447 
 
 brother's keeper?' but tried 'the luxury of doing good.' In the dark 
 and cruel days of slavery his ear was ever open to the cry of the 
 black man in bondage, and he became an active director on the under- 
 ground railway, whose terminus was on Mason and Dixon's line in the 
 south and in Canada on the north. Many a trembling fugitive, fleeing 
 from his cruel taskmaster, was aided on his hazardous journey toward 
 the north star by a friend on the shore of Lake Michigan whose name 
 he had never heard. He remembered those in bonds as bound with 
 them. In short, he followed in the footsteps of his Master as nearly as 
 he could." 
 
 That the pioneers of Milwaukee were men of strong character and 
 of far more than ordinary ability is a fact which impresses itself upon 
 every student of the city's history, and in this community Asahel Finch 
 for many years wielded a commanding influence. Quiet and mild 
 mannered in his demeanor, he was resolute, forceful, earnest and notable 
 among his contemporaries for his capacity for organized and systematic 
 effort. His public-spirited interest in everything calculated to develop 
 and build tip the city was a marked feature of his career, and he was one 
 of the most prominent of the men who conceived the idea of building 
 the pioneer railway of Wisconsin, secured the charter authorizing its 
 construction, and in various ways materially aided the enterprise. Gen- 
 erous in his impulses, philanthropic by nature, and kindly in his inter- 
 course with all classes of people, his beneficent existence was one to be 
 contemplated with pleasure, and studied with profit by the present gen- 
 eration of his successors at the bar and in other walks of life. 
 
 The only surviving member of Mr. Finch's family is his daughter, 
 Mrs. Mary Finch Papendiek, who is still a resident of Milwaukee. 
 
 JOHN HENRY VAN DYKE. 
 
 John H. Van Dyke is a typical pioneer of Milwaukee, cautious, 
 thorough, charitable, far-sighted, cultured and substantial in every phase 
 of his character. He well represents the element which has made Mil- . 
 waukee not only a great business center but the ideal residence city of 
 the west. He stands for the faithful pioneers who have given it a char- 
 
448 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 acter which is as unique as it is pleasing; whose sons and daughters 
 have never wandered permanently from their native place, thereby giv- 
 ing the city an air of mellowness and repose, which is an unusual trait 
 of the western municipality. 
 
 John H. Van Dyke was born in j\Iercersburg, Franklin county, 
 Pennsylvania, on the 17th of October, 1823. As his name imphes, he is 
 of Dutch descent, and it is not strange, remembering the famous artists 
 of Holland who have borne the family name, that he should have pos- 
 sessed such artistic tendencies and should have so persistently cultivated 
 them. As a connoisseur Mr. Van Dyke has a national reputation, his 
 private collection of art works having few equals in the United States. 
 
 At the basis of Mr. Van Dyke's artistic tastes and talents, however, 
 is the solid character of the shrewd, cautious, able and successful lawyer. 
 These traits of character have enabled him to give an invaluable impetus 
 to the practical movements of art and charity which have given !Mil- 
 waukee such a noteworthy stamp of culture and high life. Tradition 
 says that at an early day his family was financially interested in the Hol- 
 land grants of New York. William Van Dyke, his father, was of that 
 Dutch element which made Pennsylvania a great commonwealth, set- 
 tling at an early day in Franklin county. Before his death he was one 
 of the most prosperous men of that section, being at first proprietor 
 of several tanneries and, later in life, the owner of productive farms. 
 
 Mary Duncan Van Dyke, the mother, was of Scotch-Irish descent, 
 many of her kith and kin, locating in the Cumberland valley, near Car- 
 lisle. As, therefore, Mr. Van Dyke has woven into his personality the 
 racial traits of the Dutch and the British, the main characteristics of his 
 nature are accounted for. He received a thorough education at his 
 native town, Mercersburg, passing through the district schools and 
 taking a higher course at Marshall college. Graduating from the latter 
 institution at the age of eighteen, he removed to Detroit, Michigan, 
 where his brother, James A. Van Dyke, was engaged in the practice of 
 •law in partnership with Mr. Harrington. Thus he commenced his legal 
 studies, and, upon the death of Mr. Harrington, he continued them in 
 the office of the firm subsequently formed under the style of Van Dyke 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 449 
 
 & Emmons (H. H.). It may be here stated that the latter was after- 
 ward appointed United States judge of the circuit comprising Michigan 
 and adjoining states. 
 
 In April, 1846, soon after his admission to the supreme court of 
 Michigan, John H. Van Dyke removed to Milwaukee, in company with 
 Norman J. Emmons, a brother of H. H. Emmons, with whom he had 
 formed a partnership. The two young men arrived in Milwaukee on 
 the 17th of April, 1846, and at once became a forceful factor in its affairs. 
 The firm of Emmons & Van Dyke continued in busy practice for some . 
 years before receiving another partner, in the person of C. A. Hamilton. 
 Under the name of Emmons, Van Dyke & Hamilton this association 
 continued until 1870, when Mr. Van Dyke himself retired from the firm. 
 
 These were truly busy and prosperous years, as a cursory glance at 
 the reports of the Wisconsin supreme court and those of the United 
 States supreme court will abundantly testify. In the records covering 
 that period there are few law firms in Wisconsin whose names oftener 
 appear than those of Emmons & Van Dyke, and Emmons, Van Dyke & 
 Hamilton. The firms did a general law business, being especially prom- 
 inent in suits involving questions of admiralty and equity. 
 
 Mr. Van Dyke's retirement was occasioned both by the fact that he 
 had amassed a competency, and that several enterprises in whose man- 
 agement he had engaged had expanded to such dimensions as to absorb 
 a large portion of his time and strength. This was especially true of the 
 Northwestern Mutual Life InSurance Company. In the inception of the 
 company he had been chosen a member of its board of trustees, had 
 taken an active part in its affairs and assisted in developing it to the 
 dimensions of one of the most important corporations in the United 
 States. He served as president of the company from 1869 to 1874, his 
 retirement from the active practice of law dating, as stated, from 1870. 
 
 It would be impossible to go into details regarding the numerous 
 positions of trust which have been filled by Mr. Van Dyke. A simpkj 
 but by no means perfect Hst of them includes the first presidency of the 
 Young Men's Literary Society, which in later years became the Mil-- 
 waukee Library; a member of the board of visitors of the Milwaukee 
 
450 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 hospital since its organization, in 1864, being chosen to the presidency 
 to succeed Alexander Mitchell, upon the death of the latter; a member 
 of the advisory board of counsel for the ]\Iihvaukee orphan asylum, and 
 for many years a trustee of the Milwaukee female college, being for 
 several years president of its board; member of the board of trustees of 
 Lawrence university, Appleton, and similarly connected with the Lay- 
 ton art college, which he has done so much to raise to its high plane. 
 
 'Sir. Van Dyke has also been a leader in the development of the 
 mining industries of Wisconsin. He has been director and vice presi- 
 dent of the IMenominee mining company, the pioneer iron mining com- 
 pany on the Menominee Range in ^Michigan and \Msconsin. In 1882 
 the company sold several of its mines. In 1887 he was president of the 
 Chapin mining compan}', which subsequently disposed of its property. 
 The Menominee mining company then ceased to do business. The iron 
 mining company, the Pewabic, was organized during this year, Mr. Van 
 Dyke being its vice president. It is located near Iron ^Mountain, Michi- 
 gan, and is in active operation. 
 
 Although a leader in practical works of charity and ever interested 
 in public affairs ; a republican in politics, and a member of the Methodist 
 Episcopal church, he has refused all proffers of political ofifices, and has 
 been unobtrusive in his religious views. 
 
 !Mr. A"an Dyke's wife was formerly ^liss ]SIary Douglass, she being 
 of Scotch descent, as was his mother. Of their four children, George D. 
 and ^^'illiam D. \'an Dyke are members of the law firm. Van Dyke, A'^an 
 Dyke & Carter, of Alilwaukee. John H. Van Dyke, Jr.. the third son, 
 is conducting the Van Dyke knitting works. Man,- E. Van Dyke is the 
 wife of John H. Tweedy, Jr., the son of another prominent ^Milwaukee 
 pioneer. 
 
 In conclusion, we can scarcely do better than to quote Sir. Van 
 Dyke's own words as to the elements of character which are an assurance 
 of success: "Industry, integrity, will, perseverance and patience are con- 
 comitants of success, at the same time guardedly avoiding enterprises 
 of which one is ignorant — which may be styled business prudence, as 
 necessary for success in the legal profession as in any other pursuit in 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 45^ 
 
 life." Although couched in general terms the above maxims, applied 
 to the life of John H. Van Dyke, explain its successes and honors. 
 
 HALBERT E. PAINE. 
 
 The public services in field and legislative hall and the removal of 
 Halbert E. Paine from the state has caused him to be unknown to the 
 present generation of lawyers in Wisconsin; indeed, his career at the 
 bar in this state was brief. Mr. Paine was born in Chardon, Geauga 
 county, Ohio, February 4, 1826; he was graduated from the Western 
 Reserve college in 1845; admitted to the bar in 1848, and began practice 
 at Cleveland; came to Wisconsin in 1857, and opened a law office in 
 Milwaukee. He entered the military service in May, 1861, as colonel 
 of the Third Wisconsin; was promoted to a brigadier generalship in 
 January, 1863, and commanded the Third division of the Nineteenth 
 army corps; lost a leg in the service; was brevetted major general in 
 March, 1865, and resigned the following May. On his return home he 
 was elected a member of Congress, and was twice re-elected, serving 
 from 1865 to 1871. He served as commissioner of patents for several 
 years, and thereafter became a resident of Washington, D. C, and 
 engaged in the practice of the law. 
 
 O. H. WALDO. 
 
 Otis Harvey Waldo was born at Prattsburg, Steuben county. New 
 York, April i, 1822. Until he became seventeen he lived on his father's 
 farm, but attended school and an academy; he graduated from Union 
 college in 1842; notwithstanding the fact that his eyes failed and he was 
 obliged to depend upon his room-mate's reading to prepare for his 
 classes, his standing was high. His sight continued weak for two years 
 after graduation, so .that, he remained on the family farm doing light 
 work. In the fall of 1844 he went to Natchez, Mississippi; taught 
 school and read law with Gen. John A. Quitman, and in the spring of 
 1849 he became a member of the Mississippi bar. In the fall of that year 
 he located in Milwaukee and entered upon the practice of the law. He 
 does not appear either to have sought or held public office; he took 
 
452 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 an active interest in public matters affecting the prosperity of ^lil- 
 waukee, and is credited with having been largely instrumental in secur- 
 ing the construction of the Northern railroad to Green Bay via Me- 
 nasha. "The adjustment of large city indebtedness in long bonds at four 
 per cent was, in a great measure, the result of his efforts, and was the 
 foundation of the present good credit of Milwau|{ee." After nearly 
 two years of illness he died, October 30, 1874. 
 
 "His professional career was neither erratic nor brilliant. He was 
 an industrious, painstaking, studious practitioner, and he was prompted 
 not only by professional pride and ambition but by conscientious ideas 
 of duty to devote the most thorough preparation both to the facts and 
 law of every case intrusted to him, and none were neglected because 
 they were unimportant. Far and wide he was known as the well-read, 
 the clear-headed, sound judging, industrious and persistent lawyer. The 
 most difificult cases were confided to him, and seldom did he lose a case." 
 
 EDWARD SALO:\IOX. 
 
 Edward Salomon was born at Stroebeck, near Halberstadt, in Prus- 
 sia, August II, 1828. His parents' names were Christopher Salomon 
 and Dorothea nee Klussmann. 
 
 From 1806 to 181 5 his father served in the Prussian army during 
 the Napoleonic wars, first as a private, then as an officer, and was 
 severely wounded at the battle of Waterloo. He was decorated with 
 the renowned Prussian iron cross of 181 3 and with other decorations 
 for meritorious conduct in the field. Afterwards he held a modest posi- 
 tion in the civil service of Prussia until he and his wife. Governor Salo- 
 mon's mother, came to the United States in 1856. They lived at 
 Manitowoc, Wisconsin, until her death in 1871, and his death in 1872. 
 His father's ancestors were farmers, and his mother's were physicians 
 and clergymen in Germany. 
 
 Edward Salomon was educated at college in Halberstadt, and at the 
 university in Berlin in 1848 and 1849, where he pursued mainly mathe- 
 matics, natural history and philosophy. He came to the United States 
 in the fall of 1849, where his two elder brothers had preceded him. The 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 453 
 
 oldest, Charles E. Salomon, afterwards colonel and brevet brigadier gen- 
 eral of United States volunteers, was a political i-efugee on account of 
 his participation in the revolution in Prussia in 1848. The second son, 
 Frederick Salomon, was living at Manitowoc, where he also afterwards 
 entered the army during the civil war, and became brigadier general and 
 brevet major general. Edward "joined him in that city and taught 
 school, then became county surveyor, and afterwards deputy clerk of the 
 circuit court. In 1852 he removed to Milwaukee and entered the office 
 of Hon. Edward G. Ryan, afterwards chief justice of the supreme court, 
 as a student, remaining in that ofifice until 1858, studying his profession 
 under his kind, able and experienced guidance. Mr. Salomon passed 
 a thorough examination before Justices Whiton, Smith and Crawford 
 of the supreme court of Madison, which was held by them in person at 
 the request of Mr. Ryan. Mr. Salomon was thereupon admitted to the 
 bar January 25, 1855. In 1856 he became a citizen of the United States, 
 and in that year also he entered into a partnership with Winfield Smith, 
 under the firm name of Smith & Salomon, which continued until he 
 left Wisconsin in December, 1869. 
 
 On May 14, 1858, he married his wife Elise, nee Nebel, of Liege. 
 They have no children. 
 
 The practice of the firm of Smith & Salomon was general, though 
 fortune brought them into some branches of business more particularly 
 than in others. During the operations of the bankrupt law, and those 
 of the laws taxing distilled spirits, the firm had many cases under each, 
 and tried many suits in the United States court at Milwaukee. It was 
 the habit of the firm generally to try together every important case 
 possible for them so to arrange. Their business increased rapidly, and 
 Mr. Salomon's acquaintance with the Germans of Milwaukee brought 
 to him very much business from them. Their practice and business life 
 was always harmonious to a remarkable degree, and they were studious 
 and industrious, so that while they differed in the beginning upon some 
 questions, they usually discussed them to the point of unity. 
 
 The first case in the supreme court which fell to Mr. Salomon to 
 argue was that of Roche vs. Milwaukee Gaslight Company, 5 Wis., 55, 
 29 
 
454 HISTORY OF THE" BENCH AND BAR OF WISCONSIN. 
 
 holding that the city of Milwaukee was responsible and not Mr. Salo- 
 mon's client for an injury by his wagon to the plaintiff's lamp post, be- 
 cause of the condition of the street making the injury unavoidable, the 
 principle being important to the parties concerned. 
 
 The next important case argued by Governor Salomon in the su- 
 preme court was that of Baumbach vs. Bade, 7th Wisconsin Reports, 
 involving the constitutionality of the law giving to mortgagors six 
 months instead of twenty days within which to answer foreclosure com- 
 plaints. Mr. Salomon contended that the statute affected the contract 
 between the parties under the guise of regulating the remedy, but he 
 was overruled. 
 
 In 1864 he defended A. G. Miller, United States district judge, 
 before the judiciary committee of the house of representatives at 
 Washington in impeachment proceedings which had been brought and 
 were zealously prosecuted by Hon. Matt. H. Carpenter. The charge 
 grew out of the Prairie du Chien railroad litigation. The investigation 
 of the charge before the committee lasted for several months, and re- 
 sulted in a refusal of the house to entertain them. 
 
 Druecker vs. Salomon, 21 Wisconsin Reports, page 621, grew 
 out of Salomon's action as governor of the state in enforcing the draft 
 of 1862, causing the arrest and detention of so-called draft rioters 
 in Ozaukee county. In a habeas corpus proceeding the supreme court 
 in 1862 had decided that the proclamation of President Lincoln, under 
 which forcible opposition to the draft was to be tried by court martial 
 or military commission, was unconstitutional and void, and that the 
 rioters must therefore be released from imprisonment under the military 
 authority. Thereupon, after the governor's term of office had expired, 
 the plaintiff, one of the rioters, brought this action for damages against 
 him in the circuit court at Milwaukee for the alleged false imprisonment. 
 His defense was that the so-called riot was more than a riot; was, in fact, 
 an insurrection against the laws of the United States, planned and pre- 
 pared long before the day of the draft, and that he, as governor of the 
 state, was responsible for its peace, and acting also on the authority of 
 the President of the United States, had taken such measures and used 
 
• HISTORY OF THE BENCH AND BAR OF WISCONSIN. 455 
 
 such force as he deemed necessary for the suppression of this insurrec- 
 tion, and for such action the governor was not responsible in a civil suit 
 for damages. At the trial the facts regarding the insurrection were 
 proven so clearly that the presiding judge, Arthur MacArthur, held the 
 governor's view of the law to be correct, and instructed the jury to ren- 
 der a verdict for the defendant. The case went to the supreme court, 
 where the judgment was ailfirmed. The governor informs us that he 
 was assisted at the trial by able counsel, Messrs. Matt. H. Carpenter and 
 Winfield Smith, but that he prepared the defense and with their assist- 
 ance conducted the trial and afterwards with them argued the case in 
 the supreme court. 
 
 Another litigation of great importance on account of the questions 
 raised and the amount involved related to the Prairie du Chien railroad 
 company. Two bills were filed by the firm of Smith & Salomon in the 
 United States circuit court in chancery; one was entitled How vs. 
 the Milwaukee & Prairie du Chien railroad company, et al., defendants, 
 and the other Louis F. Meyer, et al., vs. the same. 
 
 The legislature of 1867, notwithstanding protests and arguments 
 made by Governor Salomon and others in opposition, had passed an act. 
 Chapter 435 of the local laws of 1867, affecting the rights of certain 
 stockholders. While the bill was pending in anticipation of its passage, 
 notwithstanding the frequent and protracted arguments of Mr. Salomon 
 before the committees of the legislature, he prepared a bill in chancery 
 asking an injunction against the enforcement of that statute, which 
 bill was filed on the day following the approval of the act of the legis- 
 lature. 
 
 While Mr. Salomon was in Madison, his partner, Mr. Smith, had 
 spent some weeks in preparing another bill filed about the same time 
 seeking also an injunction to prevent the execution of certain resolu- 
 tions and acts adopted by the directors of the Prairie du Chien railroad 
 company, and others, of which bitter complaint was made. The argu- 
 ment upon the first, or How bill, was brought on and lasted for several 
 days during May, 1867. It was closed by a decision in favor of the plain- 
 tiffs on nearly all the points, awarding the injunction as prayed for by 
 
4S6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. ■ 
 
 the bill, constituting a complete remedy satisfactory to the plaintiffs in 
 the matters of the suit. The next bill which had been drawn by Gov- 
 ernor Salomon was immediately taken up on demurrer, and was very 
 soon disposed of by the court. The How bill had been argued by Mr. 
 Salomon and Mr. Smith, but the Meyer bill was argued by the governor 
 alone; the decision was against the constitutionality of the act, a per- 
 petual injunction being awarded, forbidding any action under the void 
 statute. These acts followed closely upon the recent consolidation of 
 the Prairie du Chien and other branches of the newly organized Mil- 
 waukee & St. Paul Railway company. 
 
 Just after the conclusion of the war the governor was retained to go 
 south to defend an old friend on trial by a court martial, which, after 
 some weeks engaged in that labor, resulted in an acquittal. 
 
 The governor and his partner were occupied through a series of years 
 in defending persons charged with violations of the internal revenue 
 laws, of which cases of much interest as to facts and as to legal contro- 
 versies were before the United States court and generally resulted so as 
 to reward their efforts. 
 
 Mr. Salomon had been a democrat during his stay in Air. Ryan's 
 office, but soon after the formation of his new partnership, the ques- 
 tions arising out of the settlement of the territory of Kansas and 
 Nebraska became very active, and he was much interested and took the 
 pains to learn from the New York Tribune the facts then published by 
 that able paper, with the result that while he did not profess for some 
 time any political change, he ceased to identify himself with the demo- 
 cratic party and remained without distinct position in parties until he 
 was nominated for the position of lieutenant governor on the independ- 
 ent ticket by a convention in the fall of 1861. He was elected, Louis J. 
 Harvey being elected governor at the same time, and Samuel D. Has- 
 tings, state treasurer. 
 
 The election in 1861, and the death of Governor Harvey, who was 
 accidentally drowned in the Tennessee river, April 19, 1862, made Mr. 
 Salomon governor of the state. He was unfamiUar with poHtical affairs 
 up to that time, and had accepted the nomination without considering 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 457 
 
 the probability of serving as governor. He was aroused to a deep sense 
 of the responsibilities which fell on him so suddenly, and he set out to 
 discharge, at whatever cost, his unwelcome duties. Many, even of his 
 friends, feared lest he should be unable to perform the obligations fall- 
 ing upon him, and feared lest he should be an unsuitable representative 
 of his party, his race and the bar in so important a juncture, but those 
 who know him most intimately had no concern that he would not rise 
 to the height of every demand. With little special preparation he took 
 his seat, and thenceforward gave unremitting attention to his duties. 
 His labors as the executive head of the state were severe and incessant. 
 
 The government was at that time in the urgency of the civil war, 
 calling continually for fresh troops to enter the field. The military 
 duties of the governor were for months exceedingly arduous. He gave 
 many days from twelve to sixteen hours to his executive work, and he 
 felt that no part of his duties were more weighty than the selection of 
 the ofificers of the volunteers. He adopted regulations for the purpose 
 of procuring experienced officers, and placed, when possible, those over 
 the raw troops who were sent from this state to the field of battle, estab- 
 lishing a system of promotions, and he left no labor untried to give Wis- 
 consin troops every advantage of discipline and care. It naturally hap- 
 pened that many who had ambitious designs found them thwarted by 
 this system, and were ill pleased when their personal preferences were 
 disregarded. 
 
 Governor Salomon's firm, just and upright character is well por- 
 trayed in his striking features depicted for the people of Wisconsin by 
 the artist to whom it fell to preserve them for the executive chamber at 
 Madison. His physical and mental constitution were alike sound. 
 Strong common sense surmounted by clear perceptions and wise judg- 
 ment found expression in excellent phrase, in eloquent speech and lucid 
 writing — qualities given to a few Germans who have won distinction as 
 American statesmen. With the pen or on the platform he and his 
 friend Carl Schurz have been equally admired, whether addressing Wis- 
 consin audiences in their native tongue or in the English language. 
 Whether arguing before the supreme bench or the juries of Milwaukee 
 
458 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 county Mr. Salomon ^Yas always pleasing, always clear, and always com- 
 manded the earnest attention of his hearers, and his reputation for per- 
 fect integrity in every position added force to his efifective sentences. 
 
 He was chosen a member of the board of regents of the university in 
 the state of Wisconsin in 1857, and from that time took an active part 
 in the management of the university. He was president of that board 
 until shortly before leaving Wisconsin, when he resigned. When he 
 entered the board the affairs of the university were in a deplorable con- 
 dition for want of sufficient income, principally because a large part of 
 its funds had been used in the construction of buildings at a time when 
 greatly needed for the purposes of present education. The proposition 
 was seriously urged to close the university and even distribute its funds 
 among other colleges. He utterly opposed this, and insisted that the 
 diversion of the fund for buildings was in contravention of the spirit of 
 the grant by the United States; that the state should itself furnish the 
 buildings, and that it should refund the principal so diverted, at least the 
 interest thereon, being about $7,000 per year. In its crippled condition 
 the university had but few warm friends, and many were hostile to it; but 
 by dint of argument and perseverance the legislature was finally pre- 
 vailed upon to adopt substantially his views; and it made, accordingly, 
 appropriations which enabled the board of regents to preserve and de- 
 velop the institution, since which time it has become, and yet remains, 
 an exalted honor to the state of ^^lsconsin. The governor was also 
 prominent in urging the embodiment of the agricultural college and its 
 fund with the university, giving strength to both. In June, 1862, the 
 honorary degree of LL. D. was conferred upon Governor Salomon by 
 the board of regents. 
 
 As the end of Mr. Salomon's term as governor approached he was 
 urged to become a candidate for re-election, which he declined until he, 
 going to Vicksburg in the summer of 1863, met many of his old friends-, 
 including those bearing commissions which he had signed. There he 
 was so strongly urged to run that he could not oppose the argument 
 urged by them, that he owed his services to the state as well as they. 
 On his return to Wisconsin he expressed his willingness to accept the 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 459 
 
 nomination for governor, but then discovered that others had taken 
 advantage of his previous rekictance to arrange for delegates in favor 
 of other candidates, and those who had been chagrined by the gov- 
 ernor's mihtary appointments were quite ready to prevent his renomi- 
 nation. The convention, which indicated on the first ballot a majority 
 for Governor Salomon, was adjourned long enough to allow the neces- 
 sary manipulations to compass his defeat. The scandal following was 
 long a source of bitterness to high-minded republicans. 
 
 Soon after Governor Salomon's term of ofifice ceased he was induced 
 to go to New York city to enter into practice, and particularly to as- 
 sume the duties of counsel for the German government. His departure 
 from ^^^isconsin was felt by his i)olitical friends and by all who knew him 
 to be a grave loss to the state. The members of the bar and other 
 friends joined upon his departure in a banquet, celebrating the occasion, 
 at which the most flattering words were used towards him, and the Mil- 
 waukee lawyers united in the gift of a set of Wisconsin supreme court 
 reports. He entered upon the practice of law in New York city at once 
 and remained there for a number of years, until the failing health of his 
 wife made it necessary for him to spend much time in Europe, so that at 
 last, in May, 1894, he retired altogether from practice, and soon after 
 took up his residence at Frankfort-on-Main, where the climate and con- 
 ditions were more favorable to her condition. 
 
 Mrs. Salomon is a lady of highly pleasing manner and great accom- 
 plishments. She speaks French, German and English with perfect com- 
 mand, and was much admired in society, as far as her health would allow 
 her to form acquaintances and assume her natural position. 
 
 In New York city Mr. Salomon was associated with the firms of 
 Salomon & Burke; Salomon, Hall & Dulon; Salomon & Dulon, and 
 Salomon, Dulon & Sutre. 
 
 Governor Salomon and his friend Mr. Schurz opposed the election 
 of Mr. Blaine. While usually acting with the republican party, he has 
 occasionally disregarded party ties. In New York city municipal af- 
 fairs he took an active part, particularly when in 1870 and 1871 he was 
 a member of the committee of seventy that was formed to bring to hght 
 
460 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the scandalous frauds of the infamous "Tweed ring," in order to rescue 
 the city from that band of pubUc robbers. Governor Salomon was 
 chairman of the committee of legislation which drafted and urged the 
 adoption of the necessary measures for the overthrow of the common 
 enemy. 
 
 Mr. Salomon's parents and ancestors belonged to the Lutheran 
 church, in which religious faith he was brought up, but has not ad- 
 hered to any church organization in the United States, his mind being 
 inclined to great liberality in religious and political opinions. He has 
 not belonged to any secret societies, but has been a member of many 
 charitable and friendly societies. He was one of the founders of the 
 German legal aid society of New York, and was president of it from 
 1875 to 1888. That association has given gratuitously most valuable 
 legal aid, as well as assistance, to over one thousand poor persons, 
 mainly to Germans, for the first twenty years of its existence, and after 
 that to the poor and distressed people of all nationalities. 
 
 Governer Salomon's friends maintain a deep and abiding attach- 
 ment to him, and thousands of people in Wisconsin have never ceased 
 to regret the day when he was induced to depart from a state which 
 would have been sO' glad to pour out its highest honors upon him. 
 His abilities, his fine presence, his excellence in all which makes a man 
 useful to the public and dear to his friends will be always remembered by 
 those who had the happiness to be intimately familiar with Edward 
 Salomon. 
 
 JOSHUA STARK. 
 
 Among the hopeful young men who came to Milwaukee during the 
 first twenty years of its existence was Joshua Stark, a descendant of a 
 family well known in New England, where he was born at Brattleboro, 
 Vt., August I2th, 1828, the son of Rev. J. L. and Hannah G. Stark, both 
 of whom were natives of Bozrah, Connecticut. They removed to Can- 
 ajoharie. New York, in the spring of 1839, and three years later to the 
 village of Mohawk, in the county of Herkimer. While here resident 
 the son pursued preparatory studies at the academy in Herkimer and 
 
.toiirlcaii Biog.PuJ-j Co CWcago 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 461 
 
 later in Little Falls, New York, and entered Union college, Schenectady, 
 in the spring of 1846, joining the sophomore class. From January, 
 1847, to January, 1848, he was employed as a tutor in the family of Ed- 
 ward C. Marshall, in Fauquier county, Virginia; but the love of learning 
 and ambition for success were so strong upon him that he pursued his 
 stucHes during this time and kept up so well that upon examination he 
 was permitted to resume his standing and graduate, in 1848, with his 
 class. In the fall of that year he made arrangements to go to west 
 Maryland to teach a classical school, but because of the unexpected 
 death of an elder brother was induced to forego that purpose and to 
 enter the law office of J. N. & D. Lake at Little Falls, New York. 
 While applying himself to his legal studies with the industry that has 
 ever been a characteristic of his life he was compelled to devote a por- 
 tion of his time to other work as a means of maintenance and was for 
 a time an assistant instructor in an academy, village clerk and town 
 superintendent of schools. He was admitted to the bar by the supreme 
 court of New York, at the general term at Watertown, in July, 1850. 
 
 While revolving in his mind the question of location, the suggestion 
 was made that the west was the proper place for a young man of energy 
 and brains; and after due consideration he concluded to adopt Horace 
 Greeley's advice before it was given. With a few books and a little 
 money he set forth in the fall of the year last named with Milwaukee as 
 the point of destination. Proceeding by rail to Buffalo, thence by boat 
 to Detroit, across Michigan to New Buffalo by rail, the rest of the jour- 
 ney was made by boat, and terminated on October 6th. By the advice 
 of people he had known in early youth, he did not locate immediately in 
 Milwaukee, but proceeded to Cedarburg and formed a partnership with 
 F. W. Horn, the expectation being that the acquaintance of that gentle- 
 man would bring business, which the legal knowledge of the junior 
 partner would enable him to properly transact. Like many other the- 
 ories, this proved a failure when reduced to practice, or rather a la- 
 mented lack of practice, for the clients failed to come. A long and 
 weary winter ensued, relieved not even by the presence of his partner, 
 who was absent in the state legislature. Mr. Stark had more courage 
 
462 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 than cash, and -when he saw that the practice of the firm was not suffi- 
 cient for the payment of board, he indulged in some deep reflections as 
 to the best course to pursue. That winter he devoted his leisure time, 
 which comprised nearly every hour, to the study of the German lan- 
 guage and in making up the deficiency he felt in knowledge of chancery 
 practice and the principles of equity jurisprudence. He successfully 
 overcame the difficulties of the German language, of which he soon her 
 came a master, and soon became so well grounded in the knowledge of 
 that language that even the Germans themselves would not suspect his 
 origin from his speech. So fluently did he read and speak German that 
 at the Fourth of July celebration held at Milwaukee, in 1852, he was 
 chosen by the Germans to read the Declaration of Independence in 
 German in preference to the selection of one of their own number. 
 
 Mr. Sl;ark moved to jMilwaukee on May 19th, 185 1. He soon won 
 such standing among the people that in the spring of 1853 he was 
 elected to the office of city attorney, holding the position for one year 
 and serving to the satisfaction of the people. In November, 1855, he 
 was chosen as the democratic representative of the first ward of Mil- 
 waukee to the legislature, for the session of 1856. He was made chair- 
 man of the committee on judiciary, and a member of the committee on 
 banking, and, although the second youngest member of the body, was 
 chosen the speaker pro tem., in which capacity he presided during a 
 large portion of the adjourned session in the fall. During the regular 
 session the gubernatorial contest between Messrs. Bashford and Bar- 
 stow came before the legislature and the supreme court. ~Mt. Stark re- 
 fused to join in any resistance to the decision of that court, and ma- 
 terially aided in preventing a serious collision of opposing parties. 
 
 Near the opening of the regular session a communication from the 
 holders of scrip issued by the state "for the construction of the Fox and 
 \\'isconsin river improvement had brought to the notice of the legis- 
 lature the fact that the improvement company, to which the state had 
 in 1853 transferred the improvement and the congressional grant of 
 land in its aid — upon condition that said company should pay the in- 
 debtedness of the state incurred on account of the work — had neglected 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 463 
 
 to comply with this condition, and had permitted coupons for interest to 
 be protested for non-payment, and the credit of the state to be seriously 
 prejudiced." The matter was referred to a select committee of the as- 
 sembly, of which Mr. Stark was chairman. Charges of other delin- 
 quencies and misconduct on the part of the improvement company were 
 presented during the session, and were referred to the same committee. 
 The committee soon discovered that the questions involved were too 
 important and complicated to be disposed of upon a superficial exam- 
 ination, and on its recommendation it was instructed to investigate the 
 subject thoroughly during the recess and report at the adjourned ses- 
 sion of the legislature to be held in October of the same year. 
 
 As the result, the legislature passed a bill reported by the commit- 
 tee, at the October session, by which the prompt payment of the in- 
 debtedness of the state in question was fully secured and the abuses 
 complained of were corrected. In this matter Mr. Stark, as the active 
 and efficient head of the committee, and the author of the bill referred to, 
 rendered a service of great value to the state and exhibited a high order 
 of ability as a legislator. 
 
 In 1856 Congress made a grant of land to the state of Wisconsin for 
 railroad purposes, and the disposition of these lands was one of the 
 leading questions under discussion in the adjourned session. The 
 scandals that grew out of those matters need not be referred to here, ex- 
 cept to make record of the fact that Mr. Stark came out of the whole 
 matter untouched by any taint of acceptance of railroad bonds, and 
 that his share in all the transactions was shown to have been honorable 
 and above suspicion by the committee of investigation in 1858. 
 
 In the fall of i860 Mr. Stark was again called to a position of public 
 responsibility by an election to the office of district attorney, which he 
 held through 1861 and 1862. At the outset of his term he found the 
 course of criminal justice blocked by a conflict of opinion between the 
 judges of the municipal and the circuit courts. The municipal court 
 had only been established in 1859, and there was no express statute di- 
 recting to what court indictments found therein should be sent for trial, 
 when removed upon affidavit that the judge was prejudiced. Certain 
 
464 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 indictments had been so removed to the circuit court of Milwaukee 
 county for trial. 
 
 \\'hen these indictments were moved for trial in the circuit court 
 ]SIr. Stark was met by defendant's counsel with the objection that the 
 circuit court had no jurisdiction, since, as was contended, the statute 
 only authorized the removal of criminal indictments from the municipal 
 court to another county, and not to another court in the same county, 
 for trial. This disagreement of the judges arrested all prosecutions for 
 high crimes, and threatened serious consequences. In this dilemma Mr. 
 Stark applied immediately to the supreme court for a mandamus to com- 
 pel the circuit judge to proceed to the trial of the indictments in ques- 
 tion. The matter was pressed to a speedy hearing, the important con- 
 stitutional question involved being ably argued by ^Ir. Stark. The re- 
 sult was an early decision sustaining the jurisdiction of the circuit court 
 and commanding its judge to proceed with the hearing of the cases. 
 
 In 1862 Air. Stark, as district attorney, was enabled to perform a 
 service to th€ public of no small value. In that year the state supreme 
 court, all the judges concurring, held in a case that was appealed from 
 Milwaukee county that the act of the legislature, passed in 1854, requir- 
 ing railroad companies to pay into the state treasur\- a percentage of their 
 gross earnings, in lieu of taxes, and exempting their property used for 
 operating their roads from taxation, either general or local, was uncon- 
 stitutional and that all taxes throughout the state, which w^ere affected 
 by the omission of such railroad property from the tax rolls, pursuant to 
 said act, were void by reason of such omission. The decision affected 
 the taxes of several years, and threatened to be ver}' embarrassing in its 
 consequences. ]Mr. Stark, as district attorney, representing the losing 
 party, moved for a rehearing, and so vigorously attacked the decision, 
 urging the application of the doctrine of stare decisis, upon the strength 
 of an unreported decision of the supreme court, in 1855, sustaining the 
 act, that the judges were constrained to order a rehearing, and upon 
 further consideration to confirm the constitutionality of the act in ques- 
 tion. 
 
 In 1873 Air, Stark undertook for the city the revision and consolida- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 465 
 
 tion of its charter, with its numerous amendments, covering a period of 
 twenty-one years, and also of the general ordinances adopted during a 
 longer period. This work was mainly done out of business hours. 
 When completed, his services were further required to frame amend- 
 ments proposed by the city council, making changes of a radical char- 
 acter in the municipal government. The whole task was of the most 
 exacting character, requiring great legal knowledge, untiring patience, 
 severe labor and sound judgment; and the manner in which it was com- 
 pleted by Mr. Stark showed him to be the possessor of these diverse re- 
 quirements. 
 
 Any recital of Mr. Stark's public labors that did not give prominence 
 to his work in connection with the public schools of Milwaukee, and do 
 full justice thereto, would be very incomplete. In September, 1871, he 
 was made a member of the school board for the seventh ward. In 
 June, 1873, he was compelled to resign the position because of outside 
 work, but resumed it in April, 1874, and continued steadily in the work 
 until the summer of 1884. In the spring of 1875 he was elected presi- 
 dent of the board and held the office by successive elections until the 
 close of his connection with the schools. His thorough education, early 
 experience in school work, and sound business sense, made him of great 
 use to the schools, and enabled him to administer his duties to the best 
 interests of all concerned. 
 
 As president of the school board Mr. Stark was ex officio a member 
 of the committee on high schools and of the board having control of the 
 public library. He gave an efficient and earnest service to both of these 
 important institutions. He kept a vigilant eye upon the entire school 
 system while at its head, and had no small influence in directing the 
 poHcy and work of the board. It was, therefore, with no small degree 
 of regret that the public learned early in 1884 that, in obedience to the 
 demands of his private affairs, Mr. Stark was compelled to sever the 
 connection he had so long held with the public schools. There was 
 not only no lack of private expressions of regret at this decision, 
 but the general feeling took such public action and shape that the 
 recipient thereof could but feel that his wilhng services had been ob- 
 
466 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 served and appreciated. When his decision was made known to the 
 board, its opinion of his work was expressed in a series of resolutions. 
 The teachers of the schools felt that in the departure of Mr. Stark from 
 the board they had lost one of their most valued advisors and truest 
 friends. They iinited in the preparation of a series of resolutions which, 
 like those of the board, were handsomely engrossed and framed before 
 presentation. In this expression of their feelings the teachers declared 
 that in his retirement from the board the public school system of the 
 city had "lost one of its strongest and ablest supporters; one whose 
 character and attainments made him a most worthy champion, and 
 whose enlightened judgment and broad views constitute him one of the 
 foremost advocates of every true educational reform. . . . Espe- 
 cially have you deserved and secured our confidence and esteem 
 through your unflagging efforts to ennoble the work of the teacher and 
 lift it to the dignity of a profession." Mr. Stark was also tendered a 
 testimonial reception at the normal school building, where teachers, 
 members of the board and many others met him, and in short and 
 pointed speeches touched upon the value of his school work. He was 
 also presented with a life membership in the national teachers' associa- 
 tion. The evening of June 9th saw at the Plankinton Hotel an even 
 more marked and general tribute to the retiring president, in the shape 
 of a banquet tendered Mr. Stark by prominent educators and profes- 
 sional and business men generally. 
 
 Mr. Stark has served the people in many ways other than those 
 enumerated above. He was one of the charter members of the Young 
 Men's association of Milwaukee and also of the Milwaukee Bethel 
 union, and one of the directors of each of these institutions through a 
 number of years. In 1883 he was elected president of the Milwaukee 
 bar association, which position he held for many years. He has had an 
 active part in various associations for the advance of music, art and edu- 
 cation, where his fine natural taste and culture have been made instru- 
 ments for the general good. He was for some years a director in the 
 Milwaukee musical society, and is yet one of its contributing members. 
 In 1885 the legislature provided for the creation of a commission to 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 467 
 
 examine all candidates for admission to the bar, with the exception of 
 the graduates of the law school, appointments to the commission to be 
 made by the judges of the supreme court. Mr. Stark was one of the 
 original appointees and was continued a member of the commission by 
 annual reappointment until 1896. A firm advocate of "civil service re- 
 form," Mr. Stark has for years desired the abolition of the "spoils" sys- 
 tem of politics, and after the legislature authorized by enactment in 
 1895 the formation of a civil service commission for the city of Mil- 
 waukee his appointment by the mayor tO' a membership of that com- 
 mission for the full term of four years was but a fitting tribute to his 
 efforts in behalf of good government. This commission is' composed of 
 four members who serve gratuitously. 
 
 Although Mr. Stark was not in the military service during the war 
 of the rebellion, he loyally gave his aid to keep alive the courage and 
 patriotism of the north, attending war meetings, and doing all that lay 
 in his power for the good of the cause. 
 
 Among the important suits in the law courts with which Mr. Stark 
 has been connected mention may be made of the case of the Northern 
 Transit company vs. the Grand Trunk Railway company, in which he 
 Avas associated in the defense with G. W. Hazelton. The action was 
 brought to recover $250,000 damages for breach of contract for inter- 
 change of traffic during the years 1879 and 1880. Upon the first trial 
 the jury assessed the plaintifif's damages at something over $112,000. 
 The verdict being set aside as excessive, a second trial was had, lasting 
 nearly five weeks. Mr. Stark went to work upon the second trial with 
 a determination to work down to the facts of the case. By a thorough 
 scrutiny of plaintiff's books of accounts and documents during the 
 progress of the trial he was able to demonstrate that the greater part of 
 plaintiff's pretended losses were fictitious, and the recovery was reduced 
 to less than $10,000, including interest. 
 
 Mr. Stark's preference has always been for the departfnent of equity, 
 and in that branch of the practice he has been mainly employed, and 
 has therein won his chiefest victories. The well-known cases of Noesen 
 vs. the Supervisors of Port Washington, 37 Wisconsin, 168; Odell vs. 
 
468 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Rogers & Burnham, 44 Wisconsin, 136; and 61 Wisconsin, 562; and 
 Wells vs. McGeoch; State of Wisconsin vs. McFetridge et al., and the 
 suits brought to determine the construction of the wills of the late 
 Thomas M. Knox, 59 Wisconsin, 172; and N. B. Caswell, 63 Wisconsin, 
 529, are among the most important litigations upon which he has ex- 
 pended his best energies during the last twenty years. All of the above 
 named cases have been before the supreme court of the state, whose re- 
 ported decisions bear testimony to the difficulty and importance of the 
 questions involved and the industry and ability displayed in their dis- 
 cussion. 
 
 In addition to the natural substratum of ability, without which the 
 success which Mr. Stark has obtained could not have been possible, he 
 is endowed with the quahty of thoroughness and a persistent energy 
 that fears no labor. AMien his services are enlisted in a case he works 
 upon it day and night, if necessary, without regard to the pay that is to 
 be secured or the amount that may be involved. He is shrewd and 
 astute, and no case can be so compHcated but that he will solve it. "He 
 understands bookkeeping and figures better than a bookkeeper." He 
 is especially strong in equity cases, is a great reader, and yet regards law 
 as a science that cannot be learned altogether from books. He pre- 
 pares his cases with the greatest care, and before going into court under- 
 stands all the dangers and possibilities which he may be called upon to 
 confront. As a man and citizen he possesses the highest regard of all 
 who know him. His personal life is without reproach, and his home 
 and family relations are of the happiest and most harmonious character. 
 His generous deeds are performed without ostentation, but in abun- 
 dance, and there are many whose loads have been lightened and way 
 made more 'peaceful and secure because of his hearty sympathy and 
 
 generous aid. 
 
 DAVID G. HOOKER. 
 
 ]May 12, 1888, Judge George H. Noyes, of the superior court of Mil- 
 waukee, presented to the supreme court the memorial of the bar of Mil- 
 waukee concerning the death of David G. Hooker. Judge Xoyes' ad- 
 dress, except the opening paragraph, is given: 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 469 
 
 "David G. Hooker was born in Poultney, Vermont, on the 14th of 
 September, 1830. In his twenty-third year he graduated from Middle- 
 bury college, and after reading law for some time at Middlebury, Ver- 
 mont, he was admitted to practice in 1856. Coming to the city of Mil- 
 waukee in this latter year, he continued his residence there until the time 
 of his death on the 24th of March of the present year. While he re- 
 mained in general practice, he was at different times associated with 
 some of the most eminent members of the bar of that city. Among 
 them F. W. Pitkin, afterwards governor of Colorado; H. L. Palrner, 
 now president of the Northwestern Mutual Life Insurance company, 
 and Luther S. Dixon, ex-chief justice of this court. He was city attor- 
 ney of Milwaukee from 1867 to 1870, and its chief magistrate in 1872 
 and 1873. In 1878 he became the general counsel of the Northwestern 
 Mutual Life Insurance company, devoting the whole, as he had for 
 many years before a portion, of his time to the interests of that com- 
 pany. This position of great trust and responsibility he held until 
 the time of his death. Such, in brief, is the outline of his professional 
 and public life. 
 
 "It was my fortune to have been associated with Mr. Hooker in 
 business for the four years immediately preceding his retirement from 
 general practice. It was at a time when long experience had ripened 
 him into the learned counselor. With me it was at the beginning of 
 professional Hfe. From the first day of my acquaintance with him he 
 was to me an elder brother, a model man and counselor. Such always 
 he continued. No disparity in years or wisdom ever cast a shadow be- 
 tween him and his younger associates at the bar. To all he was the 
 same kind, patient, and unassuming adviser. His genial smile lit up his 
 open, friendly countenance alike for the old and the young, for the wise 
 and the inexperienced. 
 
 "Gentle and retiring by nature, Mr. Hooker loved not legal war- 
 fare for its excitements and its conflicts. He waged it in sincerity for 
 its results, and in fidelity to his clients. He entered the court room not 
 as one who hastens to the fray, but as one laden with a duty to^ discharge 
 and equipped to discharge that duty well. Once in the arena, he soon 
 30 
 
470 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Ipst himself in his cause and displayed the strong abilities he possessed 
 as an advocate before court and jury. His honest face and candid words- 
 carried conviction where the tongue of the orator would have been of 
 no avail. 
 
 "Though successful in the conduct of causes in court, Mr. Hooker 
 excelled in safe and judicious counsel. Deliberate in coming to his con- 
 clusions, he expressed them when formed with brevity and great pre- 
 cision, and adhered to them with the tenacity of strong conviction. Re- 
 flection and firmness were predominating qualities. With these ten- 
 4encies of mind, there were no hasty opinions or ill-considered advice 
 given by him. In his specialties of real estate and insurance law, to 
 which in later life he devoted himself, he became a master. On ques- 
 tions of title and investment, ranging through an almost limitless field 
 of inquiry, and involving the statutes and decisions of many states, he 
 became unquestioned authority. It will be to his imperishable credit 
 that the vast securities of that great insurance company which he so 
 ably counseled and faithfully served are without a flaw in title, and will 
 stand secure as adamant whether in periods of panic and depression or 
 amidst the fluctuations of time and credit. 
 
 "Briefly I have spoken of the lawyer and citizen. What may I add 
 of the man? Others of the bench and bar have told, and others still will 
 tell, in fitter. words than I can command, how just and kind he was; how 
 sterling and noble his qualities of heart and mind; how gentle, modest, 
 yet firm, his nature; how generous and loving as father and husband; 
 how excellent a friend ; how genial a companion ; how consistent a Chris-, 
 tian; how peerless a man. Let me adopt as my own the tenderest of 
 such expressions and the highest and sincerest of such eulogies and. 
 leave them here as a slight tribute to the one so greatly loved and hon- 
 ored by all who knew him." 
 
 HENRY MARTYN FINCH. 
 
 The subject of this sketch was born in the state of New York, De- 
 cember 15, 1829. At an early age he removed to Michigan, and in 
 1850 to Milwaukee. He studied law in the office of Smith & Palmer, 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 47^ 
 
 a firm composed of Abram D. Smith, subsequently an associate justice 
 of the supreme court, and H. L. Palmer. In 1853 Mr. Finch was ad- 
 mitted to the bar and in 1857 became a member of the then firm of 
 Finch & Lynde, the name of which was changed to Finches, Lynde & 
 Miller. His connection with that firm continued until his death, March 
 27, 1884. 
 
 In presenting to the supreme court the testimonial of the Milwau- 
 kee bar concerning Mr. Finch (which was signed by James G. Jenkins, 
 David S. Ordway, G. W. Hazelton, D. H. Johnson and G. H. Noyes) 
 Mr. Jenkins said that soon after Mr. Finch became connected with the 
 firm of Finches, Lynde & Miller he "attained to distinction in his pro- 
 fession." At the early age of thirty ye^rs there was cast upon him much 
 of the responsibility of important litigation of an established business; 
 a burden sufficient to have daunted the spirit of one of much greater ex- 
 perience. With the indomitable will and unflagging energy which, 
 above all other qualities, characterized him, Mr. Finch devoted himself 
 to the heavy labor so cast upon him; and from thence to the day of his 
 death consecrated all vigor of mind and physical energy to the due per- 
 formance of the duty thus imposed. For upwards of a quarter of a cen- 
 tury he was an important factor in much of the weighty litigation in the 
 state. The extent of his labor and his successes are in part preserved in 
 the reports of this court from the fifth to the fifty-ninth volumes of the 
 reports. In much of the important litigation in the federal courts he 
 was a prominent actor; the reports of the supreme court of the United 
 States alike testifying to the assiduous industry and ability which char- 
 acterized the presentation of his cases. Those of us who were accus- 
 tomed to meet him in opposition best realized how dangerous a legal 
 adversary he was; how invincible must be the cause, how impenetrable 
 the armor of defense, that could withstand his mighty attack. He 
 was all lawyer. He sufifered himself to entertain no ambition for public 
 distinction. He deliberately avoided the ways of political preferment. 
 He devoted his life and all manly ambition to the cause of that jealous 
 mistress, the law, who permits no divided allegiance, who suffers no 
 indifferent devotion. 
 
472 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 In many respects his career was remarkable, his success phenomenal. 
 Without early academic or literary culture, without special gifts or grace 
 as an orator, he went to the front and achieved high rank in the pro- 
 fession, overcoming any disadvantages from want of early training by 
 the assiduous labor and constant study of his later years. His zeal for 
 his client never suffered abatement, and knew no limit of honorable en-, 
 deavor. He seemed to clothe himself with the cause of his cHent, 
 making that cause his own, defending it with all his powers and against 
 all comers. And so he battled until the end, taking leave of the profes- 
 sion, of courts, and of client, reluctantly, in the midst of an important 
 trial, almost upon compulsion, and only when physical weakness could 
 no longer permit the performance of duty. He dragged his tired body 
 to his home and lay down and died. 
 
 He spent his life in the service of others, in devotion to his chosen 
 profession, leaving to his family the noble legacy of a splendid name as 
 an able lawyer and an honest man. 
 
 And so ends a life that battled against odds and won; an enduring 
 example to the young of what may be overcome and what may be at- 
 tained by earnest, plodding study, by unselfish devotion to duty, by un- 
 flagging zeal, by indomitable perseverance. 
 
 The occasion relates only to the professional life of Mr. Finch. I 
 may, however, be permitted, without trespassing upon propriety, to 
 bear testimony to his high character in private life. As husband, father, 
 and friend, he was loyal, devoted, indulgent, steadfast — "without fear 
 and without reproach." Such a life is never wasted. Such an example 
 is never lost. They bear fruit in that immortality of influence that, for 
 good or for evil, flows from every life. Happily, here, that life and ex- 
 ample go 'in aid of what is honest, what is noble, what is faithful, what 
 is of good report. Such life and example ennoble human nature; dig- 
 nify and glorify our noble profession. 
 
 Justice Cassoday, responding for the court, said that "the presenta- 
 tion so appropriate and the remarks so fitting are heartily endorsed by 
 the court. ^ 
 
 "However sad, yet it is true that a strong, vigorous, and full- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 473 
 
 grown man, occupying a very high position in the very front rank of 
 professional Hfe, has fallen. He had been there and on duty for more 
 than a quarter of a century. Hence the breach in the column has cre- 
 ated a vacancy which necessitates a readjustment of the whole line. 
 For twenty-seven years he had been a member of a firm which has be- 
 come historic in the legal controversies of Wisconsin. That firm, from 
 the beginning, contained two very learned, able, and experienced law- 
 yers, who had been recognized as leaders in the profession almost from 
 the organization of the territory (Asahel Finch, Jr., and William P. 
 Lynde). Pressed and overwhelmed with the burdens and duties inci- 
 dent to the career of such lawyers in a rapidly growing metropolis in a 
 young and growing state, they wisely sought relief by taking into part- 
 nership two young men, including the deceased (the other was B. K. 
 Miller, Jr.), each pecviliarly adapted to furnish and render aid in the di- 
 rections most needed. Neither shrank from the position assigned, but 
 each boldly and eagerly volunteered for the entire war. To the de- 
 ceased was assigned the more active and public duties of trying cases in 
 any and all the courts. This, of course, gave him, from the start, great 
 opportunities, but necessarily forced upon him great responsibilities and 
 labors. To meet and to discharge all these acceptably to his clients 
 and with credit to himself, required great natural abilities and immense 
 resources, accompanied by unremitting study and application. These 
 considerations must, necessarily, have awakened in him a most lofty 
 ambition and a commendable professional pride — ever pressing him for- 
 ward to greater endeavor; for every lawyer who publicly tries a case is 
 himself on public trial. But Henry M. Finch did not enter the profes- 
 sion as a mere amateur. He meant business from the start, and never 
 meant anything else. He frequently met those better furnished with 
 ornate learning and the wisdom of the schools, but seldom any who 
 more thoroughly studied and mastered the case in hand. To him the 
 facts, the principles involved, and the decisions in support of them, were 
 of far more importance than any mere oratorical performance. Hence, 
 while others were studying to embellish their speech and to grace their 
 diction, he was busy studying the law and the evidence. To him every 
 
474 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 lawsuit was a prospective battle, and the pleadings and preliminary 
 motions were but skirmishes for strategic positions in the final strug- 
 gle. Being, to his mind, an expected battle, he prepared himself in ad- 
 vance to fight it out, and to force victory by superior fighting. Fully 
 armed and equipped, and with no expectations of anything but a con- 
 test, he was never taken by surprise, except when his opponents volun- 
 tarily surrendered. 
 
 "He was bold, ardent, energetic, zealous, sanguine, exacting, severe, 
 self-reliant, intense, and indomitable. These qualities gave him con- 
 victions without doubts, impetuosity without weakness, courage with- 
 out wavering, earnestness without dissimulation, and pertinacity with- 
 out remission. With such a make-up, he necessarily believed in himself, 
 his clients, and the causes of his clients, and made them his own because 
 they were his clients'. Thorough in preparation, quick in perception, 
 clear in statement, forcible in utterance, logical in argument — he was 
 always strong, even when in the wrong, and almost irresistible when in 
 the right. He never thought of defeat in advance, except as a possibil- 
 ity, and then only to retrieve in the appellate court such a calamity in 
 the trial court; and for that purpose he was in that court always prolific 
 with objections. This made him appear to some as excessively tech- 
 nical, and at times narrow, but it was the reserve force of a general 
 wherewith to recapture the field in case he should be driven from it. As 
 defeat was always unexpected, it was always unwelcome, and with him 
 frequently unaccountable on the theory of an honest difference of opin- 
 ion. To him every cause had two sides, and the right side was his side. 
 Mistaken he might be, but it was an honest mistake, forced upon his 
 convictions by the very laws of his being. He not only believed in his 
 clients, but they believed in him, and well they might, for he vigilantly 
 discharged every responsibility and conscientiously performed every 
 duty, and his life was devoted exclusively to their interests. For them 
 he was willing to spend and be spent, to sacrifice and be sacrificed, and 
 by slow degrees the tragedy was completed. In this he was grandly 
 heroic, but in so far as he was excessive he was unwise. It has been 
 aptly said that his life was spent in the courts. It may be added that 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 475 
 
 the courts always listened with interest, frequently with instruction, and 
 generally with profit. 
 
 "There certainly have been but few, if any, lawyers in this state, 
 who have in the same number of years tried and argued a greater nunri- 
 ber of important cases. His practice was immense, his responsibilities 
 numerous, his duties at times burdensome; but there was no flagging 
 of interest, no abatement of application, no neglect of duty, even for 
 that relaxation and recuperation so essential to the overworked lawyer. 
 He had a large measure of professional success, and he has left memor- 
 ials of his work among the records of most of the higher courts of the 
 northwest, the supreme court at Washington, and many others. 
 
 "But mere professional success is not a sure test of manhood and 
 character. That may be attained by one without sympathy, without 
 friendship, without benevolence, without charity, without love, without 
 virtue, without faith, without hope of immortality. To know the real 
 man we must know something of his inner life. Public utterances can- 
 not always be relied upon. Such utterances are usually made for an 
 occasion, and with circumspection, and hence are more the revelation of 
 a subject, or of other men, or of a cause, than of a speaker. It is in un- 
 guarded moments that the heart makes its truest revelations. Then it 
 reveals the hidden purposes of life, the spirit which moulds the character, 
 tempers the disposition, shapes the conduct, gives direction to the in- 
 tellect, and controls the will. 
 
 "I first met 'Matt.,' as we all called him, at Elkhorn, when we were 
 both young in the profession. His boldness of speech, his clearness of 
 perception, his aggressive manner, and his complete mastery of the 
 question involved drew me toward him as one having an engaging and 
 promising professional future. That acquaintance ripened into profes- 
 sional intercourse, that intercourse into familiarity, that familiarity into 
 friendship, which, I trust, continued to the end. When at the bar we 
 often met while attending court, especially here at the capitol, and fre- 
 quently walked about the park, about the city, and talked as lawyers 
 loving their profession only talk. His motives always seemed to be 
 pure, his utterances sincere, his dislikes undisguised, his friendships gen- 
 
476 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 uine, his integrity irreproachable, his beliefs earnest and emphatic, his 
 hope of immortality permanent, his faith in Christianity unalterable. 
 There was nothing negative in his make-up, no one ever charged him 
 with being non-committal or with having any duplicity in his nature. 
 All agree that he was genial, open-hearted, kind, social, benevolent, and 
 generous. He was not always without a grievance, real or imaginary, 
 and as to the supposed causes of such grievances his criticisms were 
 often severe, sometimes unwarranted, and occasionally unjust and un- 
 reasonable; but he was too bold and aggressive to remain silent, too 
 honest to conceal, too exacting to overlook, too faithful to his own 
 promptings to disregard or to allow to go unrebuked. 
 
 "Of his home life I have but little personal knowledge; but careful 
 inquiry of those who know, and whose statements to me are always 
 verities, reveals the fact that in that home no angry word had ever been 
 spoken, no unkind remark ever uttered, no companionable urbanity ever 
 neglected, no parental tenderness ever omitted; but, on the contrary, it 
 was always pervaded by a spirit of mutual sympathy, mutual forbear- 
 ance, mutual confidence, mutual trust, mutual love. Perhaps no higher 
 praise can be given than to quote the language of one who knew him 
 from early boyhood, but had for years been estranged from him by a 
 bitter personal controversy and litigation, and yet who, upon his death, 
 voluntarily wrote and published this touching tribute: 
 
 " 'He made his way by dint of untiring labor and persevering will 
 to a place among the foremost lawyers in the state. . . . While 
 this may be said of Mr. Finch's career as a lawyer, there was a brighter 
 side to his character, and that was best exhibited in his own home. 
 He was devotedly attached to his own family, and no father could be 
 more considerate to his children, and no husband more tender and 
 more thoughtful for the welfare of his wife, than he.' " 
 
 JOHN W. GARY. 
 
 John Watson Gary, for forty-five years a lawyer in \\^isconsin, and 
 for nearly all that time among the greatest of Wisconsin's lawyers, was 
 born February ii, 1817, at Shoreham, Vermont; his early life was passed 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 477 
 
 on his father's farm and in attendance at school, including two terms at 
 an academy. In 183 1 the family removed to Sterling, Cayuga county, 
 New York; the next year the subject of this sketch tried clerking in a 
 store, btit, not finding that employment agreeable, he returned to the 
 home farm. Soon afterward he was enabled to gratify his ambition for 
 learning by attending an academy at Hannibal, Oswego county, for two 
 terms, when the exhaustion of his funds compelled him to return home, 
 where he remained until 1837, engaged on the farm in summer and in 
 teaching school in the. winter. August, 1837, he entered the lyceum 
 at Geneva, New York, and devoted his time to the study of Latin and 
 Greek, boarding himself while there; subsequently he obtained private 
 instruction; in September, 1838, he entered Union college, whence he 
 was graduated in 1842. Duri;ig the last year of his college course he 
 studied law and later completed his preparation for admission to the 
 bar by reading in an oi^ce at Auburn, New York. In January, 1844, 
 he was admitted to the bar of the supreme court at Albany, Judge Nel- 
 son presiding, and the next day became a solicitor in chancery, having 
 been admitted by Chancellor Walworth. The following month he be- 
 gan practice at Red Creek, Wayne county. New York. Here he served 
 as postmaster. 
 
 In 1850 Mr. Cary removed to Wisconsin, locating at Racine; the fol- 
 lowing year he formed a partnership with the late James R. Doolittle, 
 which continued until 1853, when the latter became judge of the first 
 circuit; in 1857 and 1858 he had partnership relations with A. W. Farr 
 and Lewis M. Evans. During his residence in Racine Mr. Cary was 
 state senator, 1853, 1854; mayor, 1857. In January, 1859, he removed 
 to Milwaukee; his partners in the practice there were, successively, \\^al- 
 lace Pratt, A. L. Cary and J. P. C. Cottrill. He was a member of the 
 city council in 1868 and of the popular branch of the legislature in 1872. 
 Soon after becoming a member of the Milwaukee bar Mr. Cary was 
 employed as counsel by the trustees in the foreclosure mortgages upon 
 the La Crosse & Milwaukee railroad, which resulted, after years of liti- 
 gation, in the organization of the corporation now known as the Chi- 
 cago, Milwaukee & St. Paul Railway company, which, by the enlarge- 
 
478 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 merit of its powers and the acquirement of various railway properties in 
 several of the states and territories, became one of the great arteries 
 of commerce in the northwest. At the time of his death, which oc- 
 curred in Chicago on the 29th of March, 1895, and for many years pre- 
 vious, he was at the head of the law department of that great corpora- 
 tion. In the language of the memorial of the Milwaukee bar associa- 
 tion, Mr. Gary, as the leading counsel of that corporation, "rose to a 
 commanding position as one of the first corporation lawyers of the 
 country, and his name and efforts are associated with as great contro- 
 versies in connection with the establishment of the rights, powers and 
 franchises of his client as were ever brought to judgment in the courts 
 of this country. The record of his labor is preserved in the highest 
 court in the land. In those controversies he encountered some of the 
 most brilliant intellects in the ranks of the profession, and single-handed 
 conducted the combats in which he became engaged to successful is- 
 sues. In the reports of the supreme court of this state, his argument 
 of causes began with the third and extended to the eighty-ninth vol- 
 ume. Held in the highest esteem by all courts before which he ap- 
 peared, his rank and position as a lawyer was most enviable and 
 crowned with deserved distinction. His advocacy of a cause was al- 
 ways sincere and earnest, and no blemish appears on his professional 
 escutcheon. Sometimes slow in processes of thought and reasoning, 
 he was sure and steadfast in his conclusions. Each man is said to have 
 his own vocation, and with our friend 'there was one direction in which 
 all space was open to him. He had faculties silently inviting him thither 
 to endless exertion.' This made him a lawyer par excellence. In his 
 espousal of a cause he was true to his convictions and always honest 
 with himself and the court, as well as with his client. Once reaching a 
 firm conclusion, he answered the description of the poet: 'He stood 
 four square to all the winds that blew.' 
 
 "Highmindedness was with him a controlhng characteristic. In- 
 flexible and incorruptible integrity distinguished his whole career. He 
 never could be otherwise than manly and brave and true, for one of 
 his chief possessions was that high nobility of nature which is the chief 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 479 
 
 jewel of a truly great character. As he advanced in years he seemed to 
 toss away 'the spoils of wrinkled age,' and moved on to the end with 
 the same serenity of mind and persistent determination in the perform- 
 ance of duty which characterized him in the vigorous years of earlier 
 life. 
 
 "In his intercourse with his fellow-men and with his associates in 
 professional labor he was always considerate and gentle. No unkind 
 or reproachful word ever passed his lips. He was true and faithful in 
 friendship, magnanimous in his dealings with others, and every act 
 was prompted by the highest sense of honor. He was modest and un- 
 assuming, simple and unaffected in manner, and admired, trusted and 
 loved by all who knew him. 
 
 'In his family and home life 
 He was all sunshine; 
 In his face 
 The very soul of sweetness shone.' 
 
 "Macaulay has said that there are a few characters which have stood 
 the closest scrutiny and the severest tests; which have been tried in the 
 furnace and proved pure; which have been weighed in the balance and 
 have not been found wanting; which have been declared sterling by 
 general consent, and which are visibly stamped with the image and 
 superscription of the Most High. 
 
 "The friend whose death we deplore was one of those characters." 
 The memorial from which liberal quotation has been made was pre- 
 sented to the Milwaukee bar association by a committee appointed for 
 that purpose, viz. : A. R. R. Butler, Ephraim Mariner, Jerome R. Brig- 
 ham, James A. Mallory, John J. Fish, David S. Ordway and Joshua 
 Stark; gentlemen whose personal and,professional characters have been 
 approved by the test of almost a half century's active life in this state. 
 Surely, he of whom such men would pen such a portrait must have 
 closely corresponded to the portrayal, and been a model lawyer and 
 man. The memorial was presented to the supreme court by J. V. 
 Quarles, who did not make an address. H. H. Field read the tribute of 
 Burton Hanson, who was associated with Mr. Gary in the legal depart- 
 
480 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 merit of the great corporation referred to. Mr. Hanson said: "It was 
 my privilege to be associated with Mr. Gary during the last twelve 
 years of his life, and I desire to pay my tribute of respect, and to bear 
 testimony to his calm, strong mind, his stately equipoise, his broad 
 equity, his inspiring truth, his breadth of view, his great and constant 
 humanity, his tenderness as a husband and father, his constancy as a 
 friend, his fairness, his honesty, his patience, his 'loyalty, and his good- 
 ness. Each one of these qualities he not only possessed in a high de- 
 gree, but he exemplified them all in that every-day life whose burdens 
 we bear and whose vicissitudes are to us such a mystery. All who knew 
 Mr. Gary are in accord in saying that he was a man greatly beloved." 
 
 At the time the supreme court was formally notified of Mr. Gary's 
 death, like notice was given of the death of Moses M. Strong. In ad- 
 dressing the court in memory of the latter, William F. Vilas digressed so 
 far as to say of Mr. Gary that he was a massive and powerful lawyer, 
 whose professional greatness has always seemed to me far beyond its 
 measure in the common world. "Unostentatious, unpretending, with- 
 out one single art to win attention or applause, he stands to me an 
 ideal of sturdy, masterful, crushing, intellectual power in the law. Like 
 the mills of the gods, he ground slowly, but he ground exceeding fine. 
 When some great cause roused him to a full exertion and, summoning 
 his forces, he bent himself to an analysis and exposition with the untir- 
 ing constancy of which he was capable, I believe no advocate, whatever 
 his gifts, could put him down before a court which recognized address 
 to intellect as superior to the appeal to feeling. Amid all the brilliant 
 achievements of the profession in this country, notable and admired as 
 so many have been, I doubt if any should be ranked more able in con- 
 duct, more complete in victory, more richly fruitful to interests in- 
 trusted, than his preservation to his clients of the original properties of 
 what is now the great Ghicago, Milwaukee & St. Paul system of rail- 
 roads, by his successive argument of eighteen successive cases, charged 
 with varied and interesting questions, in continuous hearing before the 
 supreme court of the United States, with resulting judgment in his favor 
 in every one. He was matched against the learned and brilliant Gar- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 481 
 
 penter,* whom none could overthrow by any mere art or skill, and the 
 contest was desperate. Gary's triumph was one which only a great 
 lawyer could have won, equal in powers of mind to the greatness of his 
 cause. Much more would I gladly add, were it needful, to set forth in 
 clear remembrance the excellence of that calm, massive, steadfast char- 
 acter, never moved from its fidelity to every-day duty of life by any trial, 
 by storm or tempest, by temptation or by fear. From my earliest boy- 
 hood I knew him as, my father's friend, as, in my maturer years, I re- 
 joiced in him as mine; and with the respect and honor which his quali- 
 ties command in revered remembrance, I would lay on his grave the 
 sweetest flower of tender regard." 
 
 Mr. Justice Winslow responded to the memorial, and Mr. Hanson's 
 tribute (that of Mr. Vilas was made subsequently) on behalf of the court: 
 "The death of John W. Gary closed a legal career which was not only 
 distinguished and successful, but long, well-rounded and complete. It 
 was a career such as is given to few lawyers. There came to him 
 naturally and easily nearly all the great rewards which the profession 
 holds out to its faithful members. These rewards came not through 
 mere good fortune or chance of circumstance, but as the result of 
 ability, industry and integrity; they came because they were deserved 
 and earned. 
 
 "It has been justly observed that the state of Wisconsin was pecu- 
 liarly fortunate in its early bar. There came to the state in territorial 
 days and in the days of early statehood a band of educated lawyers, 
 strong mentally and physically, combining the refinement of the scholar 
 with the vigor and ambition of the sturdy pioneer. They came at the 
 formative period of the state, when manners and customs were yet 
 plastic, and when strong characters were certain to leave their impress 
 
 for years and perhaps for all time The roll of this early bar 
 
 is indeed a brilliant one; but to call that roll now would be a melancholy 
 
 *It is said in the notice of Mr. Cary's career in the report of the American bar 
 association, which notice was written, the editor understands, by Burton Hanson, 
 that at one term of the supreme court of the United States Mr. Cary argued fourteen 
 cases and won them all against such men as Caleb Cushing, Matt. H. Carpenter, 
 Henry A. Cram and other eminent lawyers. 
 
482 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 task, so rare would be the answers of 'Adsum.' The names, however, 
 will always shine on the pages of the constitutiona:! journals and the early 
 statute books of the state as well as the reports of this court. High 
 up on this great roll stands the name of John W. Cary. It is true that 
 he came to the state just after its admission to the Union; it is true, also, 
 that his legislative career was comparatively short, but he at once took 
 a deservedly high rank in the profession, and the influence that he thus 
 exerted ^\as unquestionably great. He became a member of a bar at 
 Racine, than which none in the state was then more brilliant. It in- 
 cluded either at that time or soon after such great names as Ryan, 
 Strong, Doolittle, Lyon, Sanders and Fuller. Among such men it is 
 high praise to say that as a lawyer Mr. Cary was their peer. While 
 not as brilliant as some of them, none was more evenly balanced, none 
 possessed more of the qualities of the great lawyer. In this bar Mr. 
 Gary's progress was steadily onward and upward. Before many years 
 the logic of events drew him to Milwaukee and placed him in charge of 
 the legal interests of the greatest corporation of the state, if not of the 
 west. In this capacity his ability as a lawyer and advocate was fully 
 tested and his fame was fully and fairly earned. There were no breaks, 
 no disappointing lapses in his career; it was steady, consistent and satis- 
 factory from beginning to end. 
 
 "His last appearance in this court was in December last (1895), when 
 he stood at this bar and argued two very important cases, reported in 
 the 89th Wisconsin under the titles of Combes vs. Keyes and Chicago, 
 Milwaukee & St. Paul Railway Company vs. Hoyt. It was then gen- 
 erally remarked that his thought was as clear, his grasp as vigorous, 
 his diction as lucid as it had ever been. Time seemed to have dealt very 
 gently with him, and there seemed no reason why he should not yet 
 enjoy years of activity and usefulness. But it was not to be. Three 
 months later the end came. It was sudden, but not untimely. Both 
 body and brain were undoubtedly weary after a long, eventful and busy 
 life. His tasks were finished; his work was done; the record was made 
 up; the book closed. 'God's finger touched him, and he slept.' " 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 483 
 
 DEWITT DAVIS. 
 
 . Dewitt Davis, who was for many years an active member of the bar, 
 a'nd who is still a much esteemed citizen of Milwaukee, located there 
 originally in 1857 to accept a position in the pubUc schools, but with a 
 well defined purpose to engage in the practice of law later on. He was 
 a well educated, well balanced young man, who came of rather notable 
 New England ancestry, and who had received in early life that careful 
 industrial and economic training which has always been a prominent 
 feature of the social system in rural New England. 
 
 His ancestors on the paternal side were of Welsh origin, but family 
 records fail to disclose the exact date at which the family tree took root 
 in this country. The earliest record obtainable shows that John Davis 
 was born, in Derby, Connecticut, about 1650, and it is probable, there- 
 fore, that the immigrant ancestor of the family was among the earliest 
 colonists of New England. Descendants of this John Davis were Cap- 
 tain Joseph Davis and Colonel John Davis, whose names figure in revo- 
 lutionary annals, .Colonel John Davis having commanded for a consid- 
 erable time the second regiment of Connecticut militia. Joseph W. 
 Davis, a descendant five generations removed of John Davis, of Derby, 
 married Henrietta Newton, and Dewitt Davis is one of the children born 
 of this union. 
 
 The Newton family history dates back to 1647, when Roger New- 
 ton, who married a daughter of the famous Rev. Thomas Hooker, 
 founder of the Connecticut colony, settled at Farmington, Connecticut, 
 to become the first minister of the gospel in that colony. At a later 
 date he went to Milford, Connecticut, and was the second clergyman 
 who located in that place. 
 
 Dewitt Davis was born in the town of Woodbridge, a few miles dis- 
 tant from New Haven, January 31, 1833. He was brought up on a farm 
 of the typical New England kind, which could only be made to support 
 a family when industry and economy on the part of all the members of 
 the household were recognized as cardinal virtues. In early boyhood. 
 
484 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 and until he was about eighteen years of age, his time was divided be- 
 tween farm labor and attendance at the public schools of his native town. 
 Having an ambition to obtain what in those days was termed "a liberal 
 education," he left the farm to become a student at Wesleyan university, 
 and being partially dependent upon his own resources, he taught school 
 at intervals to obtain the means necessary to defray his expenses while 
 in college. Before completing the full college course he quitted the 
 university to become principal of an academy at Warren, Pennsylvania. 
 He remained at Warren a year, and while there began the study of law 
 under the preceptorship of Glenni W. Schofield, who achieved distinc- 
 tion during the war period as a representative in Congress from Penn- 
 sylvania, and later as a judge of the court of claims at the national 
 capital. From Warren, Mr. Davis went to Milwaukee at the instance 
 of C. K. Martin, with whom he had been intimately acquainted as a 
 student at Wesleyan university. Martin, who had come here a year or 
 two earlier, retired at that time from the position of principal of the old 
 fourth ward school, and Mr. Davis became his successor. His connec- 
 tion with the city schools in this capacity continued three years, and at 
 the end of that time he entered the law office of Butler,- Buttrick & Cott- 
 rill, where he completed the course of study necessary to qualify him for 
 admission to the bar. He was admitted to practice in the fall of 1861, 
 and at once formed a partnership with Frederick W. Pitkin — at a later 
 date governor of the state of Colorado — under the firm name of Pitkin 
 & Davis. In 1863 Walter S. Carter, who has since achieved unusual dis- 
 tinction as a lawyer in New York city, became a member of the firm, 
 and this co-partnership continued until 1865, when Mr. Pitkin retired 
 from the association. The firm of Carter & Davis continued in existence 
 until 1869, when Mr. Carter withdrew, and Mr. Davis associated with 
 himself as junior partner, James G. Flanders, then a young lawyer of 
 rare promise, who has since fully realized the expectations of his friends. 
 In 1875 A. R. R. Butler became a member of the firm, the style of which 
 was changed to Butler, Davis & Flanders, and this association continued 
 a year or more, the partnership being dissolved in 1876. Mr. Davis con- 
 tinued the practice alone for a time, and then with one or two changes 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN, 4^5 
 
 of partners until 1881, when the impairment of his health, resulting from 
 close application to professional work, caused him to retire from active 
 practice. His professional career may be said, therefore, to have cov- 
 ered a period of twenty years, and during that time no member of the 
 Milwaukee bar devoted himself more faithfully and conscientiously to 
 the interests of his clients. A capable, well-read and well-informed 
 lawyer, he was especially successful in the conduct and management of 
 commercial law business, and during the later years of his practice he 
 had a large patronage of this character. Regarded always as a candid, 
 judicious and safe counselor, he took rank among the abler lawyers of 
 the bar also in the careful preparation of his cases and comprehensive 
 knowledge of the law involved in litigation with which he was identi- 
 fied. Honorable in his methods of practice, and courteous in his treat- 
 ment of his fellow practitioners, his relation to the bar during his long 
 connection with it has been such as to leave a pleasing impress upon 
 his professional associates and contemporaries. 
 
 In all the other relations of life, as well as in the field of professional 
 labor, his career has been such as to win for him the kindly regard and 
 high esteem of the community with which he has been so long identified. 
 Never an active partisan, he has been a pronounced republican in his 
 political affiliations since the organization of that party. The first office 
 he ever held was that of member of the school board in the early sixties, 
 and in 1864 he was elected a member of the assembly. He was the only 
 republican elected to any office of consequence in Milwaukee county 
 that year, and the result was a somewhat flattering testimonial to his 
 personal popularity. At a later date he was prominently mentioned in 
 connection with one of the local judgeships, but the condition of his 
 health at that time prevented him from giving serious consideration to 
 this suggestion of his friends. 
 
 As president of the young men's library association and chairman of 
 the lecture committee for a period of two years, Mr. Davis rendered a 
 valuable service to the city, through his activity in promoting two suc- 
 cessful lecture courses which were not only important educational enter- 
 prises, but brought to the association considerable funds with which 
 31 
 
486 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 books were purchased for its valuable library which constituted the 
 nucleus of the present pubHc library. 
 
 In 1863 Mr. Davis made a unique trip across the Atlantic, sailing 
 from Milwaukee on the "Hanover," a vessel built and loaded there. He 
 sailed on this vessel as super cargo, and was six weeks making the 
 voyage to Liverpool. After spending some time abroad he came back 
 by steamer, the trip being a most enjoyable one and* one to which some 
 historic interest attaches. 
 
 During the later years of his life he has devoted much of his time to 
 travel and literature. He is much interested in educational matters, and 
 is at present the president of the trustees of Milwaukee-Downer college. 
 
 DON A. J. UPHAM. 
 
 Don A. J. Upham came to Milwaukee, a scholarly and accomplished 
 young man, to begin the practice of his profession, in 1837, and his pro- 
 fessional and public life covered a period of more than thirty years. He 
 was born in Weathersfield, Windsor county, Vermont, on the 31st day 
 of May, 1809. His father, Joshua Upham, occupied the homestead and 
 farm in the valley of the Connecticut river that was first located by his 
 grandfather, William Upham, at the close of the revolutionary war, and 
 which now has been in possession of the family. for over one hundred 
 years. The family is one of the oldest in New England. About twenty 
 years ago the late Dr. Albert G. Upham, of Salem, Massachusetts, com- 
 piled and published the genealogy of the Upham family, in which he 
 distinctly traced the ancestors of William Upham back to John Upham, 
 who emigrated from the west of England and settled in Maiden, near 
 Boston, about sixty years after the first landing of the Pilgrims at 
 Plymouth Rock. 
 
 The Upham genealogy, edited by Captain F. K. Upham, and pub- 
 lished in 1892, contains a full history of this family, and shows the 
 descent from John Upham of nearly all persons bearing the name of 
 Upham in the United States. 
 
 The father of D. A. J. Upham, when he became sixteen years of age, 
 asked him if he could determine on what business or profession he would 
 
/ / . 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 487 
 
 select, with a determination to follow it for life. After some deliberation 
 he chose the profession of law. He was then immediately sent to the 
 preparatory school at Chester, Vermont, and afterward to Meriden, 
 New Hampshire, and at the age of nineteen he entered the sophomore 
 class at Union college. New York. The late Dr. Eliphalet Nott was then 
 president of that institution. 
 
 He graduated in 1831 with the highest standing in a class of about 
 one hundred. In the September following he entered the office of Gen- 
 eral James Tallmadge, in the city of New York, as a law student. After 
 remaining in this office about six months he found that it would be 
 necessary in some way to raise means to complete his education as a 
 lawyer. On the recommendation of President Nott he was appointed 
 assistant professor of mathematics in Delaware college, at Newark, in 
 the state of Delaware. He held this position for three years, during 
 which time he wrote editorials for the Delaware Gazette, then the lead- 
 ing democratic paper of Delaware, and at the same time he had his name 
 entered as a law student in the office of the Hon. James A. Bayard, of 
 Wilmington, Delaware, late United States senator from that state. 
 
 In 1835, after attending a course of law lectures in the city of Balti- 
 more, he was admitted to the bar and commenced the practice of law 
 in the city of Wilmington. He was elected city attorney of Wilmington 
 in 1836. From 1834 to 1837 he was editor and proprietor of the Dela- 
 ware Gazette and American Watchman, published at Wilmington. In 
 the meantime his attention had been called to the growing settlements 
 in the far west. 
 
 After the close of the Black Hawk war, it was said a place called 
 Chicago would soon be a commercial point of importance. In 1836 the 
 territory of Wisconsin was organized, containing within its limits the 
 territory now comprising the states of Wisconsin, Iowa and Minnesota. 
 He determined to explore the western country, and seek a location in 
 which to pursue his profession. 
 
 In the spring of 1837 he started for the west, and in June arrived in 
 Chicago by the route of the upper lakes. Chicago was then a very small 
 village and seemed to be located in an extensive marsh, the only high 
 
488 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 ground being a few acres on the lake shore, where the old fort was' 
 located. 
 
 He was not pleased with Chicago. In company with two friends he 
 traveled through Illinois in a farmer's wagon by the way of Dixon's 
 ferry, camping out as occasion required, and arrived at the Mississippi 
 near the mouth of Rock river. He visited Burlington and Dubuque, 
 now in the state of Iowa, and also the mineral regiofts in western Wis- 
 consin, and endeavored to find some conveyance east through Wiscon- 
 sin to Milwaukee, but was unable to do so, and was obliged to return 
 by way of Galena to Chicago, and from there by steamer to Milwaukee. 
 The first settlement in Milwaukee of any importance was made the year 
 before. The situation and prospects pleased him, and he finally deter- 
 mined to locate there. 
 
 The difficulties attending the practice of the lawyers who first set- 
 tled in the territory can hardly be appreciated at this day. His first 
 case of any importance was in the supreme court of the territory. At 
 the fall term of the district court a judgment for a large amount had 
 been obtained against one of the most extensive dealers in real estate 
 in Milwaukee, and his new dwelling house and a large amount of prop- 
 erty were advertised for sale on execution. He applied to the young 
 lawyer to take the case to the supreme court and enjoin the pending 
 sale. It was necessary that one of the judges should allow the writ of 
 injunction. Judges Frazer and Irwin were out of the territory, and 
 there was no person who could allow the writ except Judge Dunn, who 
 resided at Elk Grove, in the western district, about one hundred and 
 sixty miles from Milwaukee. There were no stage coaches or means 
 of conveyance through the territory. The only practical way was to go 
 on horseback through what is now Rock and Green counties, and the 
 only track for a considerable portion of the way was an Indian trail 
 across the prairies. He accordingly started to make the trip in this v^'ay 
 late in November, with barely time to accomplish it. 
 
 Mr. Janes had already settled in Janesville, and the miners from the 
 west had a settlement at Sugar river diggings in Green county. These 
 points he reached after having been delayed one day in crossing Rock 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 489 
 
 river, from the ice and high water. He reached Mineral Point and Elk 
 Grove without difficulty, had his writ allowed by the judge, and on his 
 return to Sugar river found he had but two nights and one day in which 
 to reach Milwaukee before the sale, a distance of about one hundred 
 miles. He started east for the James settlement early in the evening, 
 and as he reached the prairie he found that in places it was on fire, and 
 with difficulty he pursued his route. As the night advanced, it became 
 dark and cloudy, and toward midnight the wind arose and a scene pre- 
 sented itself that baffled description. On reaching high ground the view 
 was extensive, and the fire with the increasing wind spread in every 
 direction. The low grounds, where the vegetation had been rank, 
 appeared to be on fire. As far as the eye could reach, and in every direc- 
 tion, the flames seemed to shoot up to the clouds with increasing vio- 
 lence. The night was dark and not a star to be seen. It seemed as if 
 the last day had arrived, and that the final conflagration of the world was 
 now taking place. The young lawyer found himself surrounded with 
 difficulties of which his knowledge of Blackstone and Coke afforded no 
 solution, and he had at last to bring in his knowledge of other sciences 
 in order to efifect an escape. He was lost on the prairie. After diligent 
 search he could find no trace of the trail or track he wished to pursue. 
 He was near half a day's ride from any habitation, and he could not 
 ascertain in what direction he was going. By keeping on the high por- 
 tions of the prairie where, the vegetatioii had been light, and which was 
 mostly burnt over, he could remain in comparative safety, but to cross 
 the ravines or low ground was impossible, or attended with the greatest 
 danger. For several hours he wandered in various directions, without 
 knowing where he was going. At last the clouds seemed to break away 
 at one point and stars became visible. 
 
 The question was to determine to what constellations they belonged. 
 He was not long in doubt, for two clusters of stars appeared, which he 
 recognized as well known southern constellations. He knew these stars 
 must now be near the meridian, and at the extreme south. By keeping 
 them at the right he was now able to pursue a course as far as practicable 
 
490 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 in an easterly direction, and at last reached Rock river, about two miles 
 south of Janesville. 
 
 He now had one day and night in which to reach Milwaukee, a dis- 
 tance of about sixty miles. With a worn out and jaded horse, this was 
 accomplished with great difficulty. He arrived about one hour before 
 the sale, to the astonishment of the opposing counsel and great joy to 
 his cHent, who had long been anxiously awaiting his arrival. 
 
 Such are some of the incidents that attended the practice of the pro- 
 fession in the early settlement of Wisconsin. 
 
 The following year the government lands were brought into market, 
 and the most important business of the lawyers was in proving up pre- 
 emptions to important locations, the sites of future towns and cities. He 
 was employed in the important case of Gilman vs. Rogan, before the 
 land office, in proving up a pre-emption to the land where the city of 
 Beloit is located. After the settlers had obtained titles to their land 
 the practice was not essentially different from that in the older states. 
 
 An examination of the territorial court records at Milwaukee shows 
 that Mr. Upham was one of the most active and industrious lawyers of 
 his day, and that his services as counsel and advocate were constantly 
 sought after in the litigation of that period. It has been asserted by 
 some who are acquainted with the early territorial litigation that for 
 many years the practice of Mr. Upham exceeded that of any other Mil- 
 waukee lawyer. 
 
 Mr. Upham was not a politician in the true sense of the word. He 
 had no taste for the bitterness, animosity and personal abuse that pre- 
 vailed in the party contests at that time. He filled, however, some im- 
 portant positions. He was several times a member of the territorial 
 council at the earliest sessions of the legislature at Madison. He was a 
 member of the first convention that was called to form a constitution for 
 the state of Wisconsin, and was elected president of that convention. 
 He was nominated by the democratic party for governor of the state as 
 the successor of Governor Dewey. He took no active part in the can- 
 vass. The contest was very close and bitter, from dissensions in the 
 party, and the result doubtful, but the state canvassers then at Madison 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 491 
 
 declared his opponent elected by a small majority. He was twice elected 
 mayor of the city of Milwaukee, being the successor of Juneau and 
 Kilbourn. He was afterward appointed United States attorney for the 
 district of Wisconsin, an office he held for one term of four years. After 
 thirty years' successful practice in Milwaukee he was compelled by ill- 
 health to retire from the profession. 
 
 In justice to the memory of Mr. Upham it should be stated that he 
 and many of his friends believed that he was actually elected governor 
 of the state of Wisconsin, but was counted out by means of spurious 
 returns which were made to the state canvassers, similar in many 
 ways to the spurious returns which were made public at a later day in 
 the contest and trial between Bashford and Barstow. The thinly set- 
 tled condition of the state at that time, the method of conducting elec- 
 tions and conveying the returns made it possible for the unscrupulous 
 to impose false and fictitious returns from distant precincts upon the 
 state canvassers, and lack of means of communication with the remote 
 parts of the state rendered it impossible immediately to discover the 
 impositions. The friends of Mr. Upham later on believed that they had 
 obtained satisfactory evidence showing the errors in votes as counted 
 by the state canvassers, but as this evidence was not obtained until about 
 the close of the term for which the friends of Mr. Upham believed him 
 to have been elected, nothing could be done. The political history of 
 the state by the late A. M. Thompson has information upon this subject. 
 
 He was married in 1836 to Elizabeth S., daughter of Dr. Gideon 
 Jaques, of Wilmington, Delaware. The Jacques family was one of the 
 oldest in New Jersey, and descended from the first French Huguenots 
 that came to this country. Mr. and Mrs. Upham left five surviving 
 children, the eldest of whom is Colonel John J. Upham, of the United 
 States army. His eldest daughter, Carrie J., is married to Colonel 
 George H. Raymond, of Smyrna, Delaware; the second daughter, Addie 
 J., is the wife of Henry B. Taylor, Esq., merchant, of Chester, Penn- 
 sylvania; and the youngest, Sallie J., is the wife of Chief Engineer 
 George B. Ransom, of the United States navy, who served on the United 
 States cruiser Concord, May i, 1898, in the battle at Manila. The 
 
492 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 youngest son, Horace A. J. Upham, is a graduate of the university of 
 Michigan, and a member of the law firm of Fish, Cary, Upham & Black, 
 of Milwaukee. 
 
 At the close of the late war. Colonel Upham, on his return from a 
 trip to Europe, brought home and presented to his father an astro- 
 nomical telescope of large power that had just been introduced into 
 England. It is portable, and intended for private libraries. With the 
 aid of this instrument his father for several years thereafter, as his health 
 and time would permit, reviewed his early astronomical investigations, 
 informing himself of the progress made in that science during the last 
 forty years, and verifying to some extent the computations made 
 annually at the astronomical observatory at Washington. Mr. Upham's 
 life, although not characterized by any remarkable events or achieve- 
 ments, was a useful and honorable one, and noted for great industry and 
 activity. He discharged all the duties devolved upon him as a lawyer 
 and legislator with marked ability and integrity. As a citizen he was 
 public-spirited and patriotic. In his social relations, as husband, father 
 and neighbor, his conduct was not only exemplary, commanding re- 
 spect, but it was characterized by affection and kindness and by genial 
 intercourse with friends and neighbors. He was in all respects a well- 
 bred, accomplished gentleman, and his impress is visible in his family. 
 Mr. Upham died in Milwaukee, July 19th, 1877, and rests in Forest 
 Home cemetery. 
 
 WALTER S. CARTER. 
 
 \\'alter Steuben Carter, formerly of the Milwaukee bar, now of New 
 York city, was born in Barkhamsted, Litchfield county, Connecticut, 
 February 24, 1833, son of Evits and Emma (Taylor) Carter. His ances- 
 try is mainly English and Welsh, a single line extending into France. 
 His earliest American ancestor was Elder William Brewster, of the May- 
 flower, from whom he is eighth in lineal descent. He is also descended 
 from Thomas Gardner, overseer of the first colony of emigrants that 
 landed at Cape Ann, Massachusetts colony, in 1624. Others of his 
 ancestors were of the distinguished companies that came to that colony 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 493 
 
 with Governor Winthrop in 1630 and to New Haven with Governor 
 Eaton in 1637. Of his EngHsh ancestors he is eighth in descent 'from 
 Thomas Morton, a graduate of Cambridge, who was successively bishop 
 of Chester, 1615; Litchfield, 1618; and Durham, 1632, and whose 
 daughter Ann married David Yale, and, for her second husband. Gov- 
 ernor Eaton, of the New Haven colony. A daughter of David and Ann 
 (Morton) Yale married Governor Edward Hopkins of the Con- 
 necticut colony, and a son, Thomas, married Mary, daughter of Cap- 
 tain Nathaniel Turner. They were the parents of Elihu Yale, after 
 whom Yale, university was named, and the great-grandparents of Ann 
 Yale, who, in 1733, married William Carter, the great-great-grand- 
 father of the subject of this sketch. Mr. Carter is also sixth in descent 
 from Thomas Roberts, the last colonial governor of New Hampshire, 
 and seventh in descent from Governor Thomas Prince, of the Plymouth 
 colony. One of his ancestors owned Breed's Hill, on which the battle 
 of Bunker Hill was fought. Others were courageous protectors of the 
 regicides, while more than a score served in the Pequot and King 
 Philip's wars, and in the general courts of the New England colonies. 
 Three of them were among the thirteen members of the convention 
 which met in 1639 to frame a written constitution for the colony of 
 Connecticut, the first ever adopted by any people, and the leading 
 features of which have since been incorporated in the federal and in most 
 of our state constitutions. He is a grandson of Sergeant William Taylor, 
 who enlisted in the Lexington alarm, from Simsbury, Connecticut, when 
 only seventeen years of age; was at Bunker Hill, Monmouth and Stony 
 Point; served through the war, and was awarded a pension. He is also 
 third and fourth in descent respectively from private Joseph Gaylord 
 and Captain Nathaniel Bunnell, likewise Connecticut soldiers of the 
 revolution. 
 
 Mr. Carter's education was obtained in the common schools with 
 the exception of a single term in a private school at Winsted. In 1850 
 he commenced the study of law with Judge EHsha Johnson, of Ply- 
 mouth, continuing the following year with Judge Jared B. Foster, at 
 New Hartford, and completed his studies (having meantime taught 
 
494 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 school during the winters) with Judge Waldo P. Vinal, of ^Middletown, 
 in 1855. He was immediately admitted to the bar, and began a suc- 
 cessful practice in Middletown. He removed to Milwaukee, Wisconsin, 
 in 1858, where for a short time he was legal assistant in the ofifice of 
 Finches, Lynde & Miller, and later in that of ex-Chief Justice Hubbell. 
 In i860 he entered into partnership with William G. Whipple, now of 
 Little Rock, Arkansas. In 1863 the firm of Carter, Pitkin & Davis was 
 formed (ex-Governor Pitkin, of Colorado, and DeWitt Davis), which 
 continued until j\Ir. Carter removed to Chicago in 1869. He there 
 entered into partnership with Frederick AV. Becker and Samuel E. Dale 
 under the firm name of Carter, Becker & Dale. This connection was 
 severed after the great fire of 1871, when Mr. Carter removed to New 
 York, as legal representative of the Chicago creditors of the suspended 
 fire insurance companies of that and other eastern cities. Judge Leslie 
 W. Russell, now of the supreme court, became his partner, but returned 
 to St. Lawrence county in 1873, and since then 'Sir. Carter has had as 
 partners: Sherburne B. Eaton, Eugene H. Lewis, ex-Governor Daniel 
 H. Chamberlain, AA'illiam B. Hornblower, James Byrne, Lloyd W. 
 Bowers, Paul D. Cravath, John W. Houston, George ]\I. Pinney, Jr., 
 and Frederic R. Kellogg. His present firm — Carter, Hughes & 
 Dwight — has for members Charles E. Hughes, Edward F. Dwight, 
 Arthur C. Rounds, ^Marshall B. Clarke and George AV. Schurman. 
 
 In politics Mr. Carter is a republican. He has never sought office, 
 and when he was nominated for the legislature in ]\Iiddletown he de- 
 clined. The only official position he has ever held was that of United 
 States commissioner and master-in-chancery of the United States court 
 in AA'isconsin, which he held but a short time. He, however, has fre- 
 quently served on committees and as delegate to political conventions, 
 and in 1869 was manager of the senatorial campaign in \A'isconsin, 
 which sent Alatthew H. Carpenter to the United States senate. 
 
 ^Ir. Carter shows his interest actively in educational matters, was 
 on the board of education in Middletown; while in ^Milwaukee was a 
 trustee of Lawrence university, and at present is one of the trustees of 
 Syracuse university. Being an extensive traveler in foreign lands, Mr. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 495 
 
 Carter has had the opportunity to mdulge his taste for art treasures, and 
 he is the possessor of one of the finest framed collections of etchings and 
 engravings in the world. In Milwaukee, in 1892, he delivered a lecture 
 on the masterpieces of reproductive etching and engraving, which 
 probably gives the most minute and careful description of the processes 
 of etching, hne, mezzotint and stipple engraving yet published. Mr. 
 Carter belongs to the Methodist Episcopal church, and is the vice presi- 
 dent of the board of trustees of the New York avenue church of Brook- 
 lyn, to which church he lately presented one of the largest and finest 
 organs ever constructed. He also holds the position of trustee in the 
 church of which his grandfather was one of the founders in his native 
 town. He has served as Sunday school superintendent, class leader and 
 steward, and in charitable work has lent generous aid. He is one of 
 the few surviving members of the Christian commission, having held 
 the position of chairman to the Wisconsin branch of that great charit- 
 able organization, of whose work at the battle of Nashville he published 
 in the Northwestern Christian Advocate an account which was after- 
 wards republished in the official history of the commission. 
 
 In clubs and societies Mr. Carter has a wide membership. He be- 
 longs to the republican and Union League clubs in Brooklyn, where he 
 resides, and has been upon the art committee and one of the governors 
 of the latter club. He was one of the incorporators and is a life member 
 of the Brooklyn institute of arts and sciences, and since 1892, when he 
 succeeded Dudley Buck, has been president of its department of music. 
 He is a trustee of the homoeopathic hospital association, a member of 
 the New England society, and the Long Island historical society. In 
 New York he belongs to the Lawyers', Grolier and Clef clubs, is a mem- 
 ber of the manuscript society, and was the first lay-honorary associate 
 of the American guild of organists. He is also a member of the Ameri- 
 can historical association, the American geographical society, the 
 American museum of natural history, the metropolitan museum of art, 
 the New York genealogical and biographical society, the New York 
 historical society, the New York zoological society, the Sons of the 
 Revolution, the Sons of the American Revolution, the society of May- 
 
496 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 flower Descendants, the order of the Founders and Patriots of America, 
 and America's Founders and Defenders, of which last he was the 
 founder. He is a member of the New York state bar association, the 
 American bar association (being upon the committee on uniform state 
 laws of the latter), and an honorary member of the legal fraternity of 
 Phi Delta Phi. 
 
 Mr. Carter has been three times married. By his first wife, Antoin- 
 ette Smith, of New Hartford, Connecticut, who died in 1865, he had 
 four children: Dr. Colin S. Carter, a well-known dental surgeon of 
 New York; Emma, who married Reverend E. H. Dickinson, pastor of- 
 the North Presbyterian church of Bufifalo; Antoinette, wife of Mr. 
 Hughes of the firm of Carter, Hughes & Dwight; and one son, who 
 died in 1887, George S. Carter, educated at Columbia college and the 
 Harvard law school. His second wife, Mary Boyd Jones, of Frederick, 
 Maryland, died in 1869 without issue. In 1870 he married Harriet 
 Cook, of Chicago, by whom he has two children, one of whom — Walter 
 F. — was graduated from Yale in 1895, ^"^ was the famous pitcher of 
 the baseball nine; his younger son, Leslie T. Carter, will not enter 
 college, and is studying law in his father's ofifice. 
 
 Mr. Hornblower, who, it will be remembered, was nominated by 
 President Cleveland for a seat on the bench of the supreme court of the 
 United States, wrote of Mr. Carter to the editor of the Banking Law 
 Journal thus: "In my opinion, Mr. Carter's most noticeable character- 
 istics are a most extraordinary memory for names and faces, a most 
 remarkable familiarity with the surroundings, antecedents and character 
 of prominent men in all callings of life, and a readiness and alertness of 
 mind in dealing with the practical bearings of legal questions. While 
 disclaiming for himself any profundity of legal acquirements in the 
 shape of book-learning or any fondness for research among authorities, 
 he has a great faculty for apprehending the legal questions involved in 
 any matter presented to him. He has also a most unusual geniality and 
 cordiality of manner, which adds greatly to his success in professional 
 dealings witn his clients and with other lawyers." Mr. Lloyd W. 
 Bowers, of the legal department of the Chicago & Northwestern rail- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 497 
 
 road company, has written thus of his former partner: "I behave Mr. 
 Carter's most marked characteristics to be great energy, a keen knowl- 
 edge of human nature, splendid judgment of men and fine business tact. 
 He knows more men than any one I ever was acquainted with, and can 
 tell you more about them. Whatever subject he takes hold of he be- 
 lieves in going to the bottom of, and to that end he always uses indefati- 
 gably the best means of investigation. To these qualities ought certainly 
 to be added a strong and generous friendship for young men. He always 
 has in his office a number of students whose ability has recommended 
 them to him and whom he offers every advantage and the best of treat- 
 ment, with rapid promotion if deserved. He is also a fine speaker, as a 
 speech made by him to a deserving Harvard student, who had applied 
 
 for a position, conclusively shows: 'Mr. , I am sorry I have no 
 
 place for you, but I am very glad I can make one; you can go to work, 
 and your salary begins now.' He told the truth; he had no place, but 
 he took the meritorious applicant all the same." 
 
 In 1859 Mr. Carter compiled "The code of procedure of the state of 
 Wisconsin, as passed by the legislature in 1856, and amended in 1857- 
 58-59, with an appendix, containing the rules of the supreme and circuit 
 courts, the time of holding the terms of court in the various circuits, and 
 of the United States district court." 
 
 JOHN J. ORTON. 
 
 The following quotation from a letter written ten months previous 
 to his death by Mr. Orton to a former classmate at Yale, gives a brief 
 history of some of the most important events in his life: 
 
 "I was born in the town of Brookfield, Madison county. New York, 
 April 25, 1 8 12 — to-day, 71 years, 364 days — early in the morning, a 
 farmer's boy. Common school until 11; went into store; became mer- 
 chant at 21, earned some money; went to Burr seminary, Vermont, in 
 '36; prepared for college: at Yale, '38-42. Crash of '37 cleaned me out. 
 Came out of college poor; studied law — last resource of a poor student. 
 To support myself the while, kept books in bank of Orleans, New York. 
 Went to Albany; entered name as law student in ofifice of S. D. Law. 
 
498 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Admitted to practice in old supreme court of New York city in May, 
 1847. Too poor to practice law; went into merchandising again' — 
 wholesale lumber at Buffalo, '47-'49. Went west in '49; landed at Mil- 
 waukee on a visit to see my two brothers. Became engaged in merchan- 
 dising in real estate there. Made money in '52-'53. Got into the 
 Noonan and Orton litigation, which lasted until Noonan broke down, 
 went into bankruptcy, and died in the mad house in 1881-2 — say about 
 thirty years. So that from '53 to the present, I have had to be a lawyer, 
 ex necessitate — in self-defense. Sixty-five lawyers were employed in a 
 long guerrilla fight commenced against me to overthrow me. I won — 
 was not overthrown — never have been. Opposing lawyers were 
 directed to show no quarter, and I defended on that plan: fought the 
 battle as it was laid, succeeded to my satisfaction in the overthrow of 
 Noonan, and, am happy to say, the most of his merciless crew of lawyers. 
 Truly I have fought a fight, and I hope a good one. AVe are told of 
 those who, of old, fought wild beasts at Ephesus. But I have fought 
 devils incarnate; and have felt sometimes in the past that hell was 
 empty, and all the devils were here. My will and good courage have 
 carried me through, almost alone, for when one is assaulted, all false 
 friends flee." 
 
 Mr. Orton was a man who relied upon himself for his advancement, 
 and he learned the need of it in the very beginning. His father, Harlow 
 N. Orton, was a member of the medical profession, and in the year 1817 
 moved with his family from Cambria, Niagara county. New York, as 
 one of the earliest settlers of that part of the "Holland Purchase." 
 
 After obtaining a good common school education, at the age of 
 eleven the subject of this sketch became a clerk in a dry goods store at 
 Albion, Orleans county, and remained with the same employer until 
 he went into partnership with him at the age of eighteen. He was a 
 remarkably steady and industrious youth, of kind disposition, even tem- 
 per and very genial and pleasant manners. He was the most popular 
 young man in the county, and known by all by the familiar name of 
 "John." He was fond of humor, and very much given to wit and 
 repartee. He had a genius for music, both vocal and instrumental, and 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 499 
 
 was the organist of the Presbyterian church at Albion, of which he be- 
 came a member at an early age, and for many years was superintendent 
 of the Sabbath school. He was fond of reading, studious in the intervals 
 of his work, and became a most excellent and thrifty merchant. His 
 greatest intellectual force was mathematical, and he was a "ready reck- 
 oner," if not a "lightning calculator." The old Orleans county bank 
 failed, and he was appointed the agent or commissioner to close up its 
 affairs, which he did with general satisfaction, and he held with credit 
 to himself other positions of responsibility and trust. He nearly pre- 
 pared himself for college in his counting room, and having disposed of 
 his business, finished his course of preparation at Middlebury, Vermont, 
 and entered upon a classical course at Yale college, and at the end of 
 four years was graduated with honor. Immediately afterwards he read 
 law, and was admitted to the bar in the city of New York. He then 
 formed a partnership with Isaac Sherman, to manage the entire lumber 
 business of Detroitt & Co., of Albany, at Buffalo, and to buy and for- 
 ward all the lumber of that market. He made considerable money in 
 that enterprise, and at the end of a few years Mr. Sherman became a 
 banker and broker in New York city, and wished his friend and partner 
 to join him in that business. But John J. had two brothers — Myron H. 
 and Harlow S. Orton — and as he had never been near them since his 
 childhood, and as they were residents of Milwaukee, he decided to pay 
 them a visit, and upon arrival there he saw openings for business that 
 seemed profitable, and led him to a number of investments which after- 
 wards became so urgent in demanding his personal attention that he 
 concluded to settle there and make it his home. That visit was paid in 
 1850, and after deciding to remain he became a member of the firm of 
 Orton, Cross & Orton, in the practice of law. By the investments 
 spoken of above he laid the foundations of a very large fortune; but 
 out of them arose the long litigation that formed one of the main labors 
 of his life, a contest that has become a part of the legal history of Wis- 
 consin, and that ran for many years, and ended in his final triumph and 
 complete vindication. Of that contest Mr. Orton himself wrote: 
 
 "In my operations I was compelled to take what is known here' as 
 
500 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the 'Humboldt property' on some advances I had made upon it in 
 default of payment. This property lies about three miles north of the 
 court house on the Milwaukee river, and consisted of a water power, 
 dam, mills, etc., and a large tract of land. The incident referred to grew 
 out of a lease of part of the water by my grantors to one J. A. Noonan 
 and his partner, P. McNab. I bought this property in 1852, and soon 
 after Noonan commenced a litigation with me on account of this lease, 
 which lasted about twenty-five years. This was the first law suit I had 
 ever had with anyone. I soon found I was engaged with a mammoth 
 litigant — one who meant my ruin in a series of vexatious law suits. In 
 the meantime, suits had multiplied between us to over a score. I have 
 conquered after a contest of a quarter of a century and over one hun- 
 dred law suits, in which between forty and fifty lawyers have been pitted 
 against me, and thirty-six opinions written in the supreme court of the 
 state in these Noonan and Orton cases." 
 
 This extended litigation was ended only a short time before his 
 death, and his final success was a source of great comfort to him, as it 
 was evidence that he was right. Mr. Orton conducted his own cases 
 and in every turn and movement showed himself in the possession of 
 exhaustless resources of legal knowledge and skill, and of a will that 
 was like adamant. In his very first argument before the supreme court 
 of Wisconsin, it has been said by one competent to speak, "he measured 
 lances more than successfully with his adversaries, gaining a legal point 
 in the decision that ultimately saved his property and laid his most 
 formidable foes in the dust." 
 
 From that time on his suits were all brought and defended by him- 
 self in person, no matter what the array of counsel against him. His 
 style of legal oratory was peculiar. It had all the clearness and pre- 
 cision of statement that marked the best efforts of the Wisconsin bar, 
 combined with a certain amount of wit and humor, which won for him 
 confidence and marked attention. 
 
 Regarding these suits brought against him as wholly vexatious and 
 annoying, he not only chafed under them but he fought them vaHantly. 
 None could hear him without feeling that he was a man gigantically 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 5°! 
 
 wronged, one fighting because he was obliged to fight. He invariably 
 carried the sympathies of the jury and audience with him, and if de- 
 feated at a given point he had the encouragement to fight on. 
 
 Mr. Orton had also a large practice in his profession outside of his 
 own suits, and in general practice ranked high among the able men of 
 the bar of the state. 
 
 There was so much in the bearing and character of John J. Orton 
 that was never understood, and so much more that was misunderstood 
 by the people among whom he for so many years lived, that any men- 
 tion of his life would be incomplete that did not touch upon the change 
 that was wrought in him by sad circumstances that would have changed 
 the gentlest soul that ever lived. 
 
 When he first settled in Milwaukee he considered himself perma- 
 nently located, and, having been prosperous in business, he hoped to 
 spend the rest of his life in happiness, and brought to his home one 
 whom he had long loved, a daughter of one of the families of New 
 Haven county, who was beautiful in her girlhood and upon whom no 
 shadow had been cast when he met and won her love. Upon the peace, 
 purity and manifold blessings of the marriage relation as the foundation, 
 he had built all the hopes of his future life. He was a faithful member 
 of the church and a well-established member of society. But alas! 
 there fell upon him suddenly the revelation of an unfortunate infirmity 
 in his newly made wife, and that, with the knowledge of the deception 
 that had been practiced upon him in repayment of his love and trust, 
 came like the breaking of the anchor chains that had held him fast in 
 the harbor of peace and hope, letting him drift into a strange and 
 stormy career so unlike his former self. He was divorced, but the harm 
 had been done. The efifect upon the life of John J. Orton was in- 
 stantaneous and terrible. For awhile he abandoned the practice of law, 
 worked early and late, and immersed himself in business that he might 
 drown other thoughts. He became gloomy, hard and harsh where he 
 had been cheerful, liberal, genial and generous. When he forgot his 
 troubles, turmoils and cares, he was the finished scholar, the polished 
 gentleman, and genial friend, and read classics and modern authors and 
 32 
 
502 HISTORY OF THE BEXCH AXD BAR OF WISCONSIN. 
 
 loved to discuss questions of science, literature and art. These unfor- 
 tunate events occurred soon after he came to Milwaukee and were 
 known to but few, and scared}- remembered by those most familiarwith 
 his early historj-. 
 
 The outspoken openness of Mr. Orton's character in youth is dwelt 
 upon with the tenderness of recollections of olden days in the "Classic 
 Letter" of his Yale college associates for 1885. wherein it is said in 
 connection with the announcement of his death: "We all knew and 
 loved John Orton in college. He was of ardent temperament, frank 
 and outspoken in his address, of genial, kindly nature, social in his dis- 
 position, and capable of strong attachment to his friends. He was, even 
 in college, a marked character for his independence of spirit. He was 
 the oldest man of the class, and often, in a pleasant, jocose way. would 
 assume the role of paternal guardianship over those of the class with 
 whom he was the most intimate. He was accustomed to addressing 
 them as "Soboles." to indicate their youthful verdancy as compared 
 with his larger experience of life. \\'hen our college days were ended, 
 and a group of us had come together for the last time in one of our 
 rooms to have a good talk before the final parting, John Orton was 
 with us, and with no one of the group was the last hand-shaking and 
 the last farewell more hearty and prolonged than with him. \\*e saw 
 but little of him from that sad day." 
 
 The severe honesty of his early life was preserved through the after 
 years, and no charge of dishonest dealings or of departure from strict 
 justice or integrity could be advanced against him in any of his busi- 
 ness relations. Of his legal qualifications it has been well said: "As a 
 lawyer he must have subscribed, mentally at least, to the ancient oath of 
 English barristers: Present nothing to the court in falsehood, but 
 make war for our clients." He did make war for them, and in that ag- 
 gressi\-e, earnest and stormy way that generally brought victors'. As a 
 lawyer his mind was intuitive and far-seeing. He founded all argu- 
 ments upon the immovable rock of natural law, and many of his plead- 
 ings in cases of wrong and oppression wreaked upon the poor and weak 
 by the rich and strong, were considered of the highest order. His in- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 503 
 
 dustry was great. He possessed a deep knowledge of books, while his 
 memory was comprehensive and accurate. While the style of compo- 
 sition employed in his legal papers was generally bold, it was always 
 scholarly, always clear and able, and often beautiful and eloquent. He 
 would always take cases where the poor had been wronged, without fee 
 or hope of reward, and fight them through with unexampled vigor and 
 almost universal success. His secret charities were numerous, as those 
 who stood close to him can well testify; and in behalf of those who were 
 struggling with some injustice that threatened to overwhelm them he 
 put forth the most vigorous efforts of his life, never retreating until 
 the wrong had been righted, or the last method and means of procedure 
 had been exhausted. 
 
 The end of Mr. Orton's busy life came quietly on the evening of 
 Saturday, January 24, 1885. He had been in good health until about 
 a month before his death, when he was taken with erysipelas, which 
 neither the skill of his physicians nor the loving and devoted attentions 
 of his wife and daughters could deter from its fatal work. News of his 
 death was received with sincere mourning by his large circle of friends, 
 and especially by the many poor and lowly, whom he had quietly helped 
 with his means, or whom he had defended against those who had marked 
 them as easy prey. The funeral services were held at the family home 
 on Mason street, and the remains were borne to their last resting place 
 in Forest Home ceraietery by leading members of the Milwaukee bar, 
 while among the many mourners present from other parts of the state 
 were all the members of the Wisconsin supreme court, of which Mr. 
 Orton's brother, Hon. Harlow S. Orton, was an honored inember. 
 
 May 16, 1864, Mr. Orton again united in marriage with Mrs. Lu- 
 cinda Keith, born in Newberry, Vermont, January 9, 1834. Her par- 
 ents were both of English descent. At the age of nine years Mrs. 
 Orton, with her parents, became residents of Boston, Massachusetts, 
 where she was educated. This union proved a great blessing to Mr. 
 Orton, and while his life was blighted by his first marriage it was made 
 truly happy by the last, proving that often man's last days are his best. 
 
504 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 This union was blessed with two daughters, Amy C. and Eva M., to 
 whom Mr. Orton was greatly attached. 
 
 WILLIAM W. WIGHT. 
 
 William Ward Wight, of the Milwaukee bar, was born in Troy, New 
 York, January 14, 1849; graduated from Williams college in 1869, with 
 the philosophical oration, the first prize for excellence in French, and 
 with membership in the honorary society of Phi Beta Kappa; taught 
 the ancient languages at the Delaware literary institute, Franklin, New 
 York, for two years, and graduated at the law department of Union 
 university, Albany, in 1873, ^vith the degree of bachelor of laws. Began 
 to practice his profession in New York with his uncle, Edwin Mather 
 Wight, but was driven by ill health to other fields. He opened a law 
 office in Milwaukee, ^^"isconsin, in 1875, where he has practiced ever 
 since,except during a brief trip to Europe in 1880. Continuously since 
 1875 he has been the librarian of the Milwaukee Law Library associa- 
 tion. He was the originator and promoter of the plan for a public 
 library in Milwaukee, by turning over to that city the 10,000 volumes 
 of the Young Men's association; he was likewise the originator, in Mil- 
 waukee, of the civil service reform association, from which has since 
 sprung the non-partisan board of fire and police commissioners in that 
 city. Of this board Mr. Wight was appointed chief examiner October 
 12, 1886, and resigned February 13, 1889. On December i, 1888, he 
 was commissioned a member of this board to fill a vacancy; on March 
 28, 1889, he was elected chairman of said board, and was continued as 
 a member of it until June, 1897. In 1880 he was elected secretary of 
 the trustees of Alilwaukee college, and in 1887 was chosen a trustee, 
 both of which offices he has held continuously since; is now a trustee 
 and secretary of Milwaukee-Downer college, which, in 1897, succeeded 
 Milwaukee college. Since 1896 he has been a trustee of Immanuel 
 Presbyterian church, and in 1890-9^ was president of the Young Men's 
 Christian association, of ^Milwaukee; he declined a re-election to that 
 position. He is a life member of New England Historic Genealogical 
 society and of the State Historical society of Wisconsin; for two years 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 505 
 
 he has been a vice president of the latter. He is also a member of the 
 American Historical association; of the Minsink Valley Historical as- 
 sociation, and of the Dedham (Massachusetts) Historical society. He 
 is chairman of the committee on necrology and biography of the state 
 bar association of Wisconsin. At the semi-centennial exercises in 
 Madison in June, 1898, Mr. Wight represented the lake shore region 
 at the historical meeting. He was one of the organizers, in December, 
 1895, of the Parkman club, of Milwaukee, and, in January, 1890, of the 
 Wisconsin Society Sons of the American Revolution, of which he has 
 been registrar since then, and also one of the original members of the 
 Wisconsin Society of Colonial Wars; of this, too, he has been an officer. 
 He is also a member of the Milwaukee club and the Deutscher club. 
 
 In 1887 Williams college conferred upon Mr. Wight the degree of 
 A. M. 
 
 The multiplicity of Mr. Wight's duties have not prevented his doing 
 work in the book line, among his productions being some of interest 
 and value to lawyers — Wisconsin Form Book, revised edition, 1889; 
 also table .of cases decided by the supreme court of Wisconsin, 1881; 
 Lord Mansfield's Undecided Case (these are more particularly men- 
 tioned in chapter VHI), and a paper on early legislation concerning 
 Wisconsin banks, pubhshed in the proceedings of the state historical 
 society, 1895, pp. 145-161. His paper Eleazer Williams, his forerun- 
 ners, himself, in the Parkman Club's series, has been held efifectually to 
 dispose of the clairri that the said Williams was the Dauphin of France. 
 
 As a lawyer Mr. Wight always preferred and has been successful in 
 office work; he hesitates to try jury cases. The conviction that he pos- 
 sesses the judicial quality in a high degree induced a large number of 
 his brethren of the bar and other residents of Milwaukee to urge him 
 to become a candidate for county judge in 1897. Though unsuccess- 
 ful, he received a cordial support from many of the electors, and a vote 
 which he considered highly compHmentary. 
 
 Mr. Wight married in Milwaukee, June 29, 1876, Sarah Emily West, 
 who died February i, 1877; June 16, 1884, he married Mary Olivia 
 Brockway; she died July 24, 1885; March 21, 1893, he married Susan 
 
5o6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Elizabeth Lowry, of Milwaukee. He has two children — Edward 
 Brockway, born July 8, 1885; Elizabeth von Benscoten, born August 
 21, 1894. 
 
 EDWARD PERRIN VILAS. 
 
 Edward P. Vilas, of the firm of Winkler, Flanders, Smith, Bottum & 
 Vilas, one of the strongest and most prosperous legal copartnerships in 
 the northwest, is a native of Madison, where he was born on the 6th of 
 November, 1852. His parents were Levi B. and Esther G. (Smilie) 
 Vilas, his father being for nearly twenty years one of the leading law- 
 yers and statesmen of Vermont, and for more than a quarter of a century 
 a public man of marked ability in Madison and throughout the state of 
 Wisconsin. Cultured, generous, honest and energetic. Judge Vilas was 
 a father of whom any son, however talented himself, might well be 
 proud. For eighteen years he successfully practiced his profession in 
 the Green Mountain state. As a leading democrat, in 1835, he was a 
 member of its constitutional convention, afterward serving for six years 
 in the lower house, two years in the state senate, and thr^e years as 
 probate judge. His reputation for unusual ability and probity became 
 so widely extended that in 1848 he was brought forward by the democ- 
 racy as a congressional candidate. But even in those days that party 
 was in the decided minority, so that notwithstanding Judge Vilas' per- 
 sonal popularity, he proved to be the unsuccessful candidate. Remov- 
 ing to Madison in 1851, he was soon adopted as aleader of pubHc af- 
 fairs. He represented his district in the assembly three times, was 
 mayor of the city, draft commissioner in 1862, and for twelve years 
 regent of the state university. His death occurred in 1879. 
 
 As previously stated, Edward P. Vilas was born the year following 
 his father's removal to Madison. After attending the public schools he 
 entered the state university, graduating from the college of letters in 
 1872. (After graduating from the university in 1872, Mr. Vilas entered 
 the office of the Chicago & North-Western railway, being private secre- 
 tary of the division superintendent, and in this capacity he mastered 
 many details of the railroad business which were of subsequent benefit 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 507 
 
 to him in his legal practice.) On leaving the railway he first studied law 
 in the office of Vilas & Bryant, and subsequently took a regular course 
 in the law department of the university, from which he was graduated 
 in 1875 with the degree of LL. B. During the summer of 1875 he was 
 admitted to practice before the state supreme and the United States 
 courts and became associated with the firm of Vilas & Bryant, consist- 
 ing of his brother, William F. Vilas, and E. E. Bryant. He thus con- 
 tinued ^mtil 1885, when the partnership ceased by reason of his brother's 
 appointment as postmaster general and Gen. Bryant's acceptance of the 
 position of assistant attorney general of the United States. Mr. Vilas 
 then practiced alone until 1888, removing to Milwaukee on June ist of 
 that year, and becoming a member of the firm of Jenkins, Winkler, 
 Smith & Vilas. In July, 1888, Judge Jenkins was called to the United 
 States bench, which brought about the present style of the firm. 
 
 While a resident of Madison, Mr. Vilas was for several years a court 
 commissioner, and since 1885 he has been secretary of the state bar 
 association. Twice he has been appointed by Governor Peck a trustee 
 of the ]\Iilwaukee asylum for the insane, resigning from the board in 
 June, 1896. He has always been a democrat — in the latter days a gold 
 democrat. He has been prominently identified with such clubs as the 
 Lawyers', Milwaukee, Country, Deutscher and the Rho Chapter of the 
 Psi Upsilon Fraternity — the last named being a university organization. 
 
 Mr. Vilas was married in 1877 to Elizabeth Gordon Atwood, daugh- 
 ter of David Atwood, a pioneer of Wisconsin, and for many years the 
 owner and editor in chief of the "State Journal," Madison. They have 
 one son, Charles Atwood Vilas, now a student at the state university. 
 Mrs. Vilas is a woman of culture and force of character. She is a mem- 
 ber of the Daughters of the American Revolution, serving as the first 
 regent of the Milwaukee Chapter. She is also at present the president 
 of the atheneum, and is a member of the woman's club. 
 
 ALFRED L. GARY, 
 
 Alfred L. Gary, one of the most prominent corporation attorneys in 
 the northwest, and member of the firm of Fish, Cary, Upham & Black, 
 
508 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 is a native of Sterling, Cayuga county, New York, where he was born 
 July 3, 1835. His parents were Nathaniel C. and Sophia (Eaton) Gary, 
 Ms American ancestry, on his father's side, being traced to John Gary, 
 one of three brothers who settled in Massacliusetts in the seventeenth 
 century. Alfred's father was a man of character, prominent in the town 
 in which he lived. 
 
 The boy passed his early days in Sterling, where he attended the 
 district schools up to his sixteenth year. Later he entered the high 
 school of Racine, Wisconsin, at which time John G. McMynn was its 
 principal and was then and since known as one of the best educators 
 in the west. In fact, the youth was drawn to that city by the latter's 
 fame as a teacher, and for two years, 1853-1855, enjoyed the benefits 
 of his instruction. 
 
 Mr. Gary afterwards returned to the east and engaged in teaching. 
 But although a competent and successful teacher, he realized that his 
 own education was not complete and consequently, during intervals 
 in his teaching, he attended Falley seminary at Fulton, New York. 
 In 1858 he returned to Racine and entered the law ofifice of his uncle, 
 John AV. Gary, afterwards known throughout the country as a great 
 corporation and railroad lawyer. 
 
 When the latter removed to Milwaukee, in January, 1859, Alfred 
 continued with him as a student and clerk. In 1861 he was admitted 
 to the bar of the circuit court for Milwaukee county, Arthur Mc- 
 Arthur being then the presiding judge of said court. In 1865 he be- 
 came a partner with his uncle in the practice of the law, the style of the 
 firm being J. W. & A. L. Gary; J. P. G. Gottrill was added in 1870, 
 and when John W. Gary became general solicitor of the Ghicago, Mil- 
 waukee & St. Paul Railway Gompany in 1874, necessitating his retire- 
 ment from general practice, the firm became Gottrill & Gary and so 
 remained until June, 1882, when Burton Hanson was admitted. Several 
 years afterwards Mr. Gary withdrew to assume the position of general 
 solicitor of the Milwaukee, Lake Shore & Western Railway Gompany. 
 During the eleven years of his service in that capacity he acquired a 
 wide reputation for business-like methods, executive force and profes- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 509 
 
 « 
 
 sional ability. In 1893 the company was absorbed by the Chicago & 
 North-Western Raihvay Company, and in February, 1894, Mr. Cary 
 formed a partnership with John T. Fish, under the firm name of Fish 
 & Cary. As Mr. Fish had himself been connected with the Chicago, 
 Milwaukee & St. Paul railroad for many years as general solicitor of 
 the company, the two formed a combination of talent which had no 
 superior in the northwest in the domain of corporation law, especially 
 as relating to railroad litigation. 
 
 In the course of his long and successful professional career Mr. 
 Cary has been engaged in many cases involving large sums- and intri- 
 cate and important legal questions. One of the most remarkable suits 
 in which he became interested was that of the Michigan Insurance bank 
 against Anson Eldred. It was commenced in 1862' in the United States 
 circuit court for the district of Wisconsin, and the defense was then in 
 charge of John W. Cary, but it subsequently fell to the care of A. L. 
 Cary. The case was carried to the United States supreme court four 
 times and finally, after a litigation extending over a period of more 
 than thirty years, was compromised. Mr. Cary has also been employed 
 for twelve or thirteen years in a very important litigation involving the 
 title to various water power privileges on the Fox river at Kaukauna, 
 he being the representative of the corporation known as the Kaukauna 
 Water Power company. 
 
 In 1893 Judge Jenkins, United States circuit judge for the seventh 
 circuit, appointed him special master in the Northern Pacific railroad 
 foreclosure cases, and one of the important special matters referred to 
 him as such master was the petition of the company for the removal of 
 Mr. Oakes as receiver. The taking of testimony in this matter at Mil- 
 waukee, Chicago and New York, hearing the arguments and consider- 
 ing the same, occupied the master's time continuously for over five 
 months, so that his report was not filed until September 8, 1894. In 
 1896 the Northern Pacific railway land grants and other property were 
 decreed to be sold under the decrees entered in the foreclosure cases, 
 and Mr. Cary was appointed master to make such sales and did make 
 them the latter part of July and August of that year, and in doing so 
 
510 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 had to make a trip over the entire main line of the Northern Pacific 
 railroad and conduct a sale in every state except Minnesota through 
 which such railroad is located. To give some idea of the magnitude of 
 the interests involved in his charge as special master, it may be stated 
 that claims amounting in the aggregate to nearly $100,000,000 have 
 been filed with him for adjudication. 
 
 In pohtics Mr. Gary is a democrat. He was elected to the common 
 council of Milwaukee in 1872 for a term of two years, and in 1874 was a 
 member of the lower branch of the state legislature, serving during the 
 famous Granger session and vigorously opposing the so-called "Granger 
 legislation." He is a Knight Templar in the Masonic order, and is a 
 member of the Old Settlers, Country and Milwaukee clubs, having 
 served as president of the last named for six years. 
 
 He was married September 6, 1864, to Harriet M. Van Slyck of 
 Milwaukee, daughter of Jesse M. Van Slyck, an old and respected citi- 
 zen. They have four children — Robert J. Gary, a bright young lawyer 
 in Ghicago; Walter Gary, secretary of the Gibbs Electric company of 
 Milwaukee, and Harriet S. and Irving B. Gary, the last named a student 
 at the university of Wisconsin. 
 
 GEORGE W. LAKIN. 
 
 George W. ,Lakin was born in Harrison, Cumberland county, Mary- 
 land, March 29, 1816. He was educated at the Wesleyan seminary at 
 Readfield, Maine, graduating in 1837. In the same year he taught 
 school in Livermore, Maine, boarding in the family of Israel AVash- 
 burne, father of the noted family of congressmen by that name. He 
 commenced the study of law in 1838, at Readfield Corners, came to the 
 west in 1839, spent some time in Missouri, and was admitted to the 
 bar of that state in 1841. After admission to the bar he came at once 
 to Wisconsin and opened an office at Platteville, Grant county, in the 
 same year. 
 
 In 1847 Mr. Lakin was elected as a representative from the county 
 of Grant to the constitutional convention, and in that body served on 
 the committee on banks, banking and incorporations. He took promi- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 511 
 
 nent part in the discussions in the convention, speaking upon many of 
 the most important subjects before it. He had a strong mind, highly 
 cultivated, and, possessing an excellent voice, his speeches were always 
 listened to with marked attention. In 1848 he was elected a member 
 of the state senate, in which body he served two years, ranking among 
 the ablest men in it, and was valuable and useful in shaping the afifairs 
 of the state government. 
 
 He was appointed United States district attorney for Wisconsin in 
 1849, by President Taylor, and held the office until the close of Mr. 
 Fillmore's term in 1853, discharging the duties of the position with 
 marked ability and fidelity to the interests of the government. In 1854 
 Mr. Lakin removed to the city of Milwaukee, where he has ever since 
 devoted his time to the practice of his profession. 
 
 THOMAS LATHROP KENNAN. 
 
 The original stock from which Thomas L. Kennan was descended, 
 on the paternal side, belonged to that class of sturdy pioneers who are 
 known in this country as Scotch-Irish or Scotch Presbyterians, who 
 were driven out of Scotland by the persecution and fled to the north of 
 Ireland. On the maternal side his ancestors were from England. 
 
 Captain Richard Kennan located with his family in Virginia prior to 
 1670. One of his descendants. General Richard Kennan, was appointed 
 by President Jefferson first governor of Louisiana. His son, Commo- 
 dore Beverly Kennan of the United States navy, married Brittania 
 Wellington Peter, of Georgetown, D. C, who was a great-granddaugh- 
 ter of Martha Custis, wife of George Washington. He was killed by 
 the explosion of a gun on the frigate Princeton in 1844, at the time 
 Secretaries Upshur and Gilman of President Tyler's cabinet lost their 
 lives. James Kennan, who was the ancestor of the northern branch of 
 the Kennan family, was living in Massachusetts as early as 1734 in 
 Worcester county. 
 
 One of his sons, Col. George Kennan, was the great-grandfather of 
 Thomas L., and an officer in the revolutionary war from Massachusetts, 
 and, later, prominent in the public affairs of Vermont. One of his sons. 
 
512 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Jairus Kennan, was a professor in the state university of Vermont and 
 is said to have been a collaborator with Washington Irving in the writ- 
 ing of Salmagundi. 
 
 Another son of Col. George Kennan was the Rev. Thomas Kennan, 
 a Presbyterian clergyman of standing in the Green Mountain state, and 
 later of the state of New York. He was the grandfather of Thomas 
 L. Kennan and of George Kennan, the distinguished Siberian traveler 
 and author. The eldest son of the Vermont clergyman was George 
 Kennan, who, in 1816, married Mary, the daughter of Captain Chester 
 Tullar, and a few years later removed to Morristown, St. Lawrence 
 county. New York, where he established himself and his family as 
 among the earliest and most respected pioneers of that section of the 
 state. The eldest son of the family, which eventually consisted of four 
 sons and six daughters, was the subject of this sketch, Thomas L. Ken- 
 nan; place of birth, Morristown, and date, February 22, 1827. The boy 
 worked upon his father's farm, attended the best schools that the coun- 
 try afforded, and showed his enterprise as well as his eagerness to make 
 the most of himself, by inducing some of his companions to club theii 
 means and engage the services of a private instructor, who could impart 
 knowledge beyond the scope of the average district teacher. Thomas 
 made such progress that at the age of seventeen he was an instructor 
 himself, and a year later left home as a strong, ambitious, self-reliant 
 young man. In 1847, while still in his minority, he settled at Norwalk, O., 
 in order that he might enter the law office of his uncle, Jarius Kennan. 
 After being admitted to the bar, in 185 1, he removed to Oshkosh, Wis., 
 to practice his profession, two years later forming a partnership with 
 Judge Wheeler, who' had been a former resident of Neenah. In 1855 
 Mr. Kennan made another change of location to Portage, having two 
 years previously been admitted to practice in the state supreme court. 
 It was during this epoch of his career that he became well known as 
 a criminal lawyer, but this branch of the practice, being distasteful to 
 him, he abandoned it and thereafter devoted his attention to civil busi- 
 ness. 
 
 Upon the breaking out of the civil war, Mr. Kennan recruited a 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. SI3 
 
 company and early in the fall of 1861 was mustered into the service at 
 Milwaukee, as first lieutenant of company D, loth Wisconsin infantry. 
 Subsequently, although unanimously elected captain and thus commis- 
 sioned by the governor, he declined the promotion in favor of a more 
 experienced officer. The winter following was assigned to staff duty, 
 and while at Nashville, Tenn., was thrown into quite intimate contact 
 with. Andrew Johnson, then military governor of the state. Mr. Ken- 
 nan's health failed, however, and in July, 1862, he was obliged to resign 
 his position not only to his own regret but to the regret of all who had 
 dealings with him. 
 
 For the restoration of his strength he retired for a time to his large 
 stock farm in Marquette county, not neglecting, however, to champion 
 with voice and pen the Union cause to which he had given his heart and 
 soul. He was elected president of the county loyal league and in 1863 
 received the appointment of deputy provost marshal and served the 
 government in that capacity until the cessation of hostilities. 
 
 Although Mr. Kennan has never sought political preferment, his 
 name has often been suggested for high official positions, but he stead- 
 fastly declined all such honors. 
 
 After regaining his health he returned to Portage, and energetically 
 and successfully resumed the practice of his profession. 
 
 Within the succeeding decade he built up a large and profitable gen- 
 eral practice, which was diverted more or less into the channels of cor- 
 poration, and, especially, railroad law. It was during this period (in 
 1876) that he was admitted to practice in the supreme court of the 
 United States. In 1880 he was induced to give up his general practice 
 and accept a position with the Wisconsin Central Railroad company 'as 
 its attorney, and to the intricate legal interests of this great corporation 
 Mr. Kennan devoted the following ten years of his professional life. 
 He then resigned, in order that he might take life a little more easy 
 and give more attention to his extensive private affairs. 
 
 In 1883 he removed to Milwaukee, where he became largely inter- 
 ested in real estate, as well as acquiring valuable property in Ashland 
 and Chicago. After resigning his position as attorney for the railroad 
 
SH HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 company he not only invested more extensively in landed property, but 
 in such active business enterprises as gold and iron mining. So that 
 at the present time he is not only a successful practitioner but a financier 
 of wide reputation. He is president of a prosprous real estate company 
 in Milwaukee; president and active manager of the Livingstone Gold 
 Mining company and of the Milwaukee & Colorado Gold Mining 
 company of Boulder county, Colo.; is largely interested in iron mining 
 on the Gogebic Range; and a director and stockholder in a national 
 bank as well as a shareholder in a number of other manufacturing and 
 business enterprises. 
 
 Mr. Kennan has long been a member and for many years was a 
 trustee of Immanuel Presbyterian church. He is a member of the 
 Loyal Legion of the G. A. R., and of the Masonic fraternity (thirty- 
 second degree). His handsome residence on Prospect avenue is the 
 appropriate symbol of a cultured, beautiful home. The wife and mother, 
 to whom Mr. Kennan was married in 1850, was formerly Miss Loa 
 Brown, of Norwalk, O., the little town where his career as an able law- 
 yer, a courageous, honest and successful man, and a refined and Chris- 
 tian gentleman was thus happily inaugurated nearly half a century ago. 
 Six children have been born to them, divided equally as to sex, and all • 
 honorable members of society. 
 
 WILLIAM J. Mcelroy. 
 
 William J. McElroy, one of the prominent members of the younger 
 class of Wisconsin practitioners, is of Scotch-Irish descent; his parents 
 were Samuel and Mary McElroy. The early portion of their married 
 life was spent at St. Stephens, Canada, from which place they removed 
 to Berlin (then Strong's Landing), Wisconsin. Here, on the 8th of 
 January, 1856, was born William J., the subject of this sketch, his father 
 having purchased a farm near the city. This, the family homestead, 
 where he spent his boyhood days, was also the scene of the father's 
 death in December, 1891, at the age of eighty-two years. The mother 
 died in 1895. Both were faithful and influential members of the Method- 
 ist Episcopal church, being among those who organized the first so- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 515 
 
 ciety of that denomination in Berlin. Mr. McElroy was an earnest 
 abolitionist and republican, and during the last ten years of his life an 
 ardent prohibitionist. 
 
 The youth spent his first eighteen years upon the farm, attending 
 also the public schools and the high school of Berlin, graduating from 
 the latter institution in 1876. He then enjoyed a two years' course at 
 the University of Wisconsin and, although he did not graduate, he ob- 
 tained the honorary degree of master of arts. 
 
 After leaving the state university he attended the law office of Car- 
 penter & Smith, Milwaukee; studying also with Markham & Smith, 
 the senior member of which firm took a lively interest in the young, 
 poor and promising student. When he left the latter office, after he was 
 admitted to the bar, Mr. Markham generously advanced him $100 
 with which to open an ofifice. But this was by no means the extent 
 of Mr. McElroy's equipment. He had energy and brains in abundance, 
 and these, combined with even a meager money capital, will carry a 
 man to success. 
 
 Mr. McElroy has practiced now in Milwaukee for about fifteen 
 years, a portion of the time alone and the balance of this period as 
 senior member of the firm of McElroy & Trottman and McElroy & 
 Eschweiler. 
 
 As a republican Mr. McElroy has well served his constituents. For 
 four years, from 1887 to 1891, he was secretary of the state league of 
 republican clubs, and one year was a member of the national executive 
 committee. He was also a delegate to the convention which nomi- 
 nated Jeremiah M. Rusk for governor for his third term, and has since 
 acted in a similar capacity at several state conventions. As an execu- 
 tive his force was well illustrated when he served as secretary of the Wis- 
 consin bar committee which conducted the campaign of Judge Webb 
 for a position on the state supreme bench. Elected to the assembly in 
 1886, to represent the fourth district of Milwaukee, this executive quali- 
 ty in a marked degree was also evidenced during the first year of his 
 term as chairman of the committee on state affairs, and during his entire 
 second term, commencing in 1888, as chairman of the committee on 
 
5i6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 judiciary. There are perhaps no more important standing committees 
 of the assembly than these, and it is therefore an unusual honor that 
 a young and untried member should be appointed to head them both. 
 
 In 1885 Mr. McElroy was appointed to the ofiSce of court commis- 
 sioner by the circuit judge of Milwaukee county, and has continued to 
 hold the position ever since, being considered a model official — court- 
 eous yet firm, judicial yet not severe. 
 
 Mr. McElroy has not been extensively identified with secret and 
 benevolent societies; he has, however, for many years been active, and 
 consequently prominent, in masonic affairs. In 1888 he became a mem- 
 ber of Kilbourne lodge and has since filled in succession all the official 
 chairs in that body; he is also a member of Ivanhoe commandery, and 
 Wisconsin consistory, the latter the highest masonic body in the state. 
 
 He was married December 4, 1890, to Lillian Elliott, at Milwaukee, 
 two children having been born to them — Catherine and Helen. Fol- 
 lowing in the footsteps of his parents, Mr. McElroy is a Methodist in 
 belief, although since marriage he has been an attendant at the Presby- 
 terian church. 
 
 CURTIS THADDEUS BENEDICT. 
 
 Curtis Thaddeus Benedict was born at Deposit, in Delaware county, 
 N. Y., November 19, 1837. His father was Rev. Emilius L. Benedict, 
 a Baptist clergyman, born at Deposit in 181 5, who married LaMora T. 
 Shaw, of Gilbertsville, N. Y., whose father, Samuel Shaw, was born at 
 Boston, Mass., and whose mother was Marcia Dayton, born at or near 
 Norwalk, Conn. The Benedicts are descended from William Benedict 
 who in or about 1500 lived in Nottinghamshire, England, and more 
 recently from Thomas Benedict, who in 1638 came from Nottingham- 
 shire to Massachusetts Bay and soon after settled at Southold, Long 
 Island, from which he subsequently removed to Norwalk, Conn. Many 
 of his descendants are still living at Norwalk and in its vicinity. The 
 grandfather of the subject of this sketch, Thaddeus Benedict, in 1791, 
 when a young man, left Connecticut and "went west" to settle in the 
 
(Lirr 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 517 
 
 then new and timbered country of Delaware county, N. Y., where, in 
 1807, he married Mary Hulse, the first white child born in the town of 
 Tompkins in that county, who on the maternal side is said to be a de- 
 scendant of Gen. Nicholas Herkimer, by his only daughter, whom he 
 disinherited for marrying a tory, the secretary of a governor of New 
 York. 
 
 A brother of Thaddeus Benedict enlisted in the revolutionary army 
 and died while in camp in New Jersey. Jonas Dayton, the grandfather 
 of Marcia Dayton, was a lieutenant in the Connecticut volunteers in 
 1756, and Mr. Benedict has in his possession the commission given to 
 Lieut. Dayton by Thomas Fitch, captain general and commander-in- 
 chief of the colony of Connecticut, dated March 26, 1756, authorizing 
 him, "by beat of drum or otherwise," to assist in raising " a company 
 of able-bodied effective volunteers for the defense and protection of his 
 majesties territories at Crown Point, etc." The Daytons were of French 
 extraction, the Shaws of Scotch and Irish, the Hulses of Dutch, and the 
 Benedicts of English. 
 
 Curtis T. Benedict was educated in the public schools of New York 
 and in academies at Hamilton and Norwich, N. Y. In October, 1856, 
 he came to Janesville, Wis., and was a clerk in the offices of the register 
 of deeds and of the clerk of the court; taught schools the two following 
 winters, and was book-keeper and financial clerk in the office of the 
 Janesville Standard in the summer and fall of 1857. In 1858 he read 
 law at Windsor, N. Y., in the office of Franklin Wheeler, and in 1859 
 at Norwich, N. Y., in the office of Sherwood S. Merritt, and was ad- 
 mitted to the bar of all the courts of New York on November 17, 1859. 
 In June, i860, at Janesville, Wis., he was admitted to practice in the 
 circuit court of Wisconsin, and thereafter went to Iowa and commenced 
 practice in Mitchell county, but remained there only until the spring of 
 1861, when he returned to New York, and afterward entered into part- 
 nership with Hon. John E. Seeley, of Ovid, N. Y. In 1863 he ran for 
 county attorney on the republican ticket, but was defeated with all 
 others on the same ticket. In May, 1864, he joined the army at Fort- 
 ress Monroe, in the capacity of corresponding clerk under Gen. Herman 
 33 
 
5i8 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Biggs, quartermaster, who was then on the staff of Gen. B. F. Butler, 
 at that time in the command of the department of Virginia and North 
 Carolina. In the fall of 1864 he went with Gen. Biggs to Washington, 
 D. C, and subsequently to Philadelphia, where, in connection with the 
 large purchasing depot of the quartermaster's department in that city, 
 it became a part of his duties to prepare contracts and bonds and super- 
 vise the letting of contracts for the purchase by the* government of army 
 supplies amounting to millions of dollars. After the close of the war 
 some time was spent in settling the accounts of Gen. Biggs, who had 
 resigned, with the government, and in August, 1867, he again came 
 west, settling at Rochester, Minn., where he entered into partnership 
 with Oscar O. Baldwin, in the practice of the law. The next year he 
 was elected clerk of the court, and served for one term of four years. 
 Thereafter he entered into partnership with Charles M. Start (now chief 
 justice of the supreme court of Minnesota), with whom he remained 
 about two years, when, because of failing health, he withdrew from the 
 firm, and soon after took out-of-door employment with the C. & N. W. 
 R. R. Co., obtaining title to considerable of the right of way, etc., of that 
 railroad in Minnesota and Dakota. While residing in Minnesota he 
 was active in the republican party, making campaign speeches, attend- 
 ing county and state conventions and serving on the state central com- 
 mittee. In 1872 he was a delegate to, and a vice president of, the re- 
 publican national convention that met at Philadelphia and renominated 
 General Grant for President. 
 
 In 1880 he removed to Milwaukee and soon after entered into part- 
 nership with Col. George B. Goodwin, under the firm name of Goodwin 
 & Benedict, which connection was continued until 1883. Since 1883 
 he has given his attention exclusively to patent law. In 1891 he formed 
 a partnership with Arthur L. Morsell, formerly of Washington, D. C, 
 under the firm name of Benedict & Morsell. Mr. Benedict and his firm 
 have had charge of many important suits in the federal courts, involving 
 interests in or under patents, both in Wisconsin and adjoining states 
 and in the east. His practice in the patent office and in the federal 
 courts calls him frequently to Washington, New York, Boston and 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 519 
 
 Other eastern cities, as well as to St. Paul, Minneapolis, St. Louis and 
 Chicago. 
 
 Mr. Benedict has an enviable reputation in patent law, both as a 
 counselor and as an advocate. His ability to analyze and group com- 
 plicated questions involved in patent litigation and to clearly and forci- 
 bly present to the court the facts and the law relating to a case, is con- 
 ceded. He is a member of the state bar association of Wisconsin. By 
 close application to business for many years and with thrift and the ab- 
 sence of expensive habits he has acquired a competence. On December 
 21, 1870, at Geneva, N. Y., he married Janet McCrea Doig, youngest 
 daughter of the late Peter Doig of Ovid, N. Y., whose ancestors came 
 from near Sterling, Scotland. There are no children living of the mar- 
 riage. 
 
 Mr. Benedict is not a member of any secret society. Being natu- 
 rally cautious and not inclined to assume positions or accept responsi- 
 bility without good reasons for so doing, he has never sought admission 
 to any order, society or fraternity, whose principles, practices and ob- 
 jects were not clearly and fully disclosed before admission thereto. He 
 sees no satisfactory reason for secret combinations of persons in a coun- 
 try where life, liberty and the pursuit of happiness are in the hands of 
 the people, who for these important purposes in life should be free, 
 confiding and honest with each other, a grand fraternity without cabal 
 or secret obligation or aim. For social, educational, business, charitable 
 and religious purposes there is, in his opinion, no occasion for secret 
 association. For doing good every place is an altar and all time is 
 summer; a dark room and a password are not necessary for little or big 
 deeds of kindness. 
 
 Being of Baptist ancestry, and being early taught in that church to 
 accept the Bible as the only controlling rule of religious faith, he early 
 studied its teachings, and came to accept the common belief of Bap- 
 tists that man, originally created holy, fell, and that all men by inheri- 
 tance were fallen and had need of a saving means, once given in the 
 earthborn Son of God, who suffered and died that all men, that chose, 
 might by repentance and faith in Him have eternal life. Subsequent 
 
520 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 and more careful study of the Bible, in connection with earlier and con- 
 temporary human records, and the knowledge acquired by recently 
 recognized evidences of evolution in creation, have induced him to yield 
 credence to the now widely accepted beliefs that the collected writings 
 called biblia, or the Bible, are the productions of men, based on then 
 current human knowledge, and are to be accepted as a guide and in- 
 structor, so far as approved by conscience and carefully formed opin- 
 ions; and that religion involves faithful and persistent effort to ascertain 
 and do what is right, especially in and by such a just and kindly regard 
 for others as to lead us to do unto others as we would wish or could 
 expect them to do to us, and in and by our own personal advancement, 
 by all means at our command, in those essentially mental or spiritual 
 conditions that are necessary to that higher life, to which we are stimu- 
 lated by aspirations that emphasize the belief that we are indeed children 
 and participants of the life of an all wise and infinitely good Creator. 
 
 GEORGE HENRY WAHL. 
 
 George H. Wahl, junior member of the firm of Miller, Noyes, Mil- 
 ler & Wahl, one of the strongest law partnerships in the United States, 
 is a native of Milwaukee, where he was born on the 6th of November, 
 1861. His father, Jacob Wahl, was one of the pioneer teachers of the 
 city, being principal of the sixth district school for more than thirty 
 years. AVhen the revolution in Germany was begun in 1848 he was a 
 university student, at Giesen, and with thousands of other young men 
 had to leave the fatherland. Arriving in New York city, July 4, 1849, 
 after a residence of nine years in the Empire state, he decided to remove 
 to Milwaukee, whither so many of his countrymen had preceded him. 
 
 Locating in Milwaukee, in 1858, Jacob Wahl, who had already 
 mastered the English tongue, at once found a demand for his talents 
 as a teacher and a disciplinarian. He taught for five years and then, in 
 1863, received the appointment of principal of the sixth district school, 
 his jurisdiction covering no small portion of the German population of 
 ^Iilwaukee. That he was especially adapted for such a post is evident 
 from the fact that he retained it until the time of his death, in 1894. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 521 
 
 It is not strange, considering what a practical part he took in the man- 
 agement of the pubHc school system of his native city, that he should 
 have been, through life, an earnest advocate of its effectiveness in the 
 formation of a steadfast and forceful national character. 
 
 Mr. Wahl's wife and the mother of George H., was Miss Barbara 
 ^'on Roeckel, of a Bavarian family whose members emigrated to the 
 United States in 1842 because of industrial and political conditions 
 which were unbearable in their native land. 
 
 As stated, George H. Wahl, the son, was born in Milwaukee. Here 
 he received an education in the public and normal schools and entered 
 the University of Wisconsin in 1883. Previous to this, however, he had 
 taught school for three years and before graduating from the law 
 school, in 1885, had studied in the law office of J. M. Olin, at Madison. 
 Returning to Milwaukee, he entered into partnership with Emil Wall- 
 ber, afterwards judge of the municipal court, which continued until his 
 elevation to the bench in December, 1889. 
 
 After practicing alone for one year Mr. AA-^ahl was appointed assistant 
 district attorney of Milwaukee county, holcUng that position during 
 i89i-"92. For a short time he was a member of the firm of Walker, 
 Brown & AVahl, and in March, 1894, was admitted to partnership with 
 Miller, Noyes & Miller. 
 
 Air. Wahl is popular as well as able, having been identified with the 
 Milwaukee and Calumet clubs. He is a mason, a member of Kilbourn 
 Lodge No. 3, and is connected with the jMihvaukee musical society. 
 He was married in 1891 to Natalie Rice. 
 
 BRADLEY G. SCHLEY. 
 
 Mr. Schley, whose sudden death on the i8th of June, 1895, cast a 
 cloud of gloom over the Milwaukee bar and a host of friends, was born 
 in Milwaukee, October 3, 1857; his education was obtained at the Wis- 
 consin university. His whole professional life was passed in his native 
 city.. He had served as assistant United States district attorney and also 
 as assistant general solicitor of the Milwaukee, Lake Shore & Western 
 Railroad company ; was a member of the American bar association and 
 
522 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the western member of its executive committee; was appointed by 
 Governor Peck a member of the committee to promote and effect uni- 
 formity of legislation. It has been said of him that he was "sensitive 
 to a fault, the soul of honor, the epitome of personal pride and self-re- 
 liance; he was a law unto himself and erred, as few men do, in self- 
 blame, magnifying to himself the faults that others readily forgave him. 
 A pleasant, forcible and logical speaker, his forensic efforts were both 
 agreeable and convincing. A close student, he always knew whereof he 
 spoke, and invariably won that attention and appreciation which are 
 the highest compliments to one of his profession ; of a genial and lova- 
 ble nature, his friends were legion, and his was the rare gift of attracting 
 and retaining by his personality the warm friendship of mature and 
 ripened men. By nature, birth and education he was a gentleman, and 
 his mental capacity and attainments warranted his pride and ambition. 
 The legal mind was a direct heritage, for his was a family of lawyers, 
 his father, grandfather and great-grandfather having been active and 
 prominent members of the Maryland bar." 
 
 E. P. SMITH. 
 
 Edwards P. Smith was admitted to practice in the circuit court of 
 Wisconsin at Milwaukee, May, 1849, being then a student in the offices 
 of Finch & Lynde of that city. Prior to that time he was a student in 
 the offices of Hon. E. F. Bullard, now of New York, and of Kirtland & 
 Seymour, of Waterford, Saratoga county. New York. 
 
 In October, 1849, Mr. Smith commenced the practice of his pro- 
 fession at Beaver Dam, Dodge county, this state, remaining there in a 
 full and extensive practice until January, 1872, when he removed to 
 Milwaukee, forming a partnership with Ephraim Mariner and David 
 S. Ordway, the latter named gentleman having been associated with him 
 in business at Beaver Dam until 1866, when he removed to Milwaukee. 
 
 Thereafter Mr. Smith was a member of and connected with the fol- 
 lowing legal firms of that city: Cotzhausen, Smith, Sylvester & 
 Scheiber; Markham & Markham; Nathan Pereles & Sons; Finches, 
 Lynde & Miller. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 523 
 
 From the time of his admission to practice before the supreme court 
 of the state, until 1891, Mr. Smith was frequently engaged in important 
 litigation in that court^the last case argued by him being that of Burn- 
 ham vs. Burnham, in 1891. 
 
 In January, 1890, Mr. Smith removed to Omaha, Nebraska, accept- 
 ing the position of assistant general attorney for the Union Pacific rail- 
 way, and is still residing at Omaha and in the employment of the rail- 
 road company. 
 
 Mr. Smith has always been a close student and hard worker, seldom 
 finding time for recreation or even a brief respite from professional toil. 
 
 By close application and unfaltering zeal in behalf of his clients he 
 early won a place in the front rank of the profession and has always 
 maintained it. 
 
 While a resident of Beaver Dam he was engaged in nearly all the 
 important Htigation of that vicinity and it was here the foundation was 
 laid for success in more important fields. He is equally at home in the 
 trial of jury cases and in the argument of difficult questions of law be- 
 fore the supreme court. Indeed there are few lawyers able to sum up a 
 case to a jury in a more able, entertaining and effective manner, or to 
 argue questions of law to a court more persuasively. He is entitled to 
 be classed not only as a capable, learned and well equipped lawyer, but 
 as a genial gentleman, a good citizen and worthy member of society. 
 
 AMOS A. L. SMITH. 
 
 Mr. A. A. L. Smith was born at Appleton, Wisconsin, September 8, 
 1849, the son of Reverend Reeder and Eliza P. (Kimball) Smith, and 
 was the first white child born in that place. His father was one of the 
 most conspicuous citizens of Wisconsin, and to him belongs the credit 
 of having been the founder of the city of Appleton, as the agent of Amos 
 A. Lawrence, of Boston, who was the owner of the land upon which the 
 city now stands. He also established the Lawrence university, at 
 Appleton, and founded the town of New London, Wisconsin, which he 
 named after his birthplace in Connecticut. 
 
 The subject of this sketch was prepared for college at Lawrence 
 
524 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 university, at Appleton, where he completed his sophomore year. He 
 then entered the Northwestern university, at Evanston, Illinois, in Sep- 
 tember, 1869. After a full classical course, he was graduated in 1872, 
 taking the highest prizes for oratory and English composition. He 
 was a prominent debater in the literary societies of the institution; was 
 for two years editor of the college paper; took several special studies in 
 the department of engineering, and in languages was quite proficient, 
 having in his college course read the whole trilogy of ^schylus, in 
 addition to the Greek prescribed. He also prepared an oration in 
 Greek. 
 
 Immediately after graduation Mr. Smith became traveling corre- 
 spondent for the Chicago Inter Ocean, and a few months later joined 
 the editorial force of the city department for two years. In the mean- 
 time, having access to the extensive law library of J. Y. Scammon, 
 proprietor of the paper, his spare moments were devoted to the study 
 of the law. 
 
 In 1874 he came to Milwaukee, where he completed his law studies 
 and was admitted to the bar the same year, and commenced the practice 
 of his profession in the office of Carpenter & Murphey. Here, for two 
 years, Mr. Smith assisted in the preparation of cases and participated 
 in many of the trials of the firm. 
 
 Upon the return of Senator Carpenter from Washington, in March, 
 1876, Mr. Smith rented the office and library of Chief Justice E. G. 
 Ryan, and began the practice of law on his own account, acquiring a 
 large and representative clientage. Subsequently he entered into part- 
 nership with Senator Carpenter and Winfield Smith, which was known 
 as Carpenter & Smiths, and upon the death of the former, in 1881, the 
 firm became Winfield & A. A. L. Smith. January 22, 1883, Mr. Smith 
 became associated with James G. Jenkins, afterward United States cir- 
 cuit judge, and General F. C. Winkler, forming the firm of Jenkins, 
 Winkler & Smith. Later Mr. J. T. Fish was associated with them, and 
 upon the subsequent retirement of Mr. Fish to become solicitor of the 
 Chicago, Milwaukee & St. Paul railroad, E. P. Vilas, of Madison, Wis- 
 consin, entered the firm. When Judge Jenkins went upon the bench. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 525 
 
 July i6, 1888, the present firm of Winkler, Flanders, Smith, Bottum & 
 Vilas was formed by combining the firms of Winkler, Smith & Vilas, 
 and Flanders & Bottum. 
 
 In 1892 Mr. Smith was one of the promoters and organizers of the 
 Wisconsin National bank, an enterprise which at once took a promi- 
 nent position among the financial institutions of the northwest. He has 
 always taken an active part in the bank's affairs and is a member of its 
 board of directors. 
 
 Mr. Smith is a lawyer of unquestioned ability and takes a most 
 prominent position at the bar of the state. As counsel for estates and 
 for business men in the guidance and conduct of their affairs, he is 
 recognized as one of the most acute and safe counselors at the bar, 
 combining sound legal attainments with excellent business judgment. 
 He is the confidential legal adviser and counselor for two of the largest 
 corporations in the city. 
 
 A large portion of Mr. Smith's success is attributable to unremitting 
 attention to his profession, and hard, steady work. He occupies a high 
 position at the bar of the state and, although in the prime of life, can, 
 with justifiable pride, look backward over well-spent years. 
 
 He was formerly one of the trustees of Milwaukee college and main- 
 tains a lively interest in educational advancement. He is a lover of 
 fine arts and is a connoisseur in that line, having a rema^rkably fine pri- 
 vate collection of standard art subjects and of literature bearing upon 
 art work. . 
 
 Mr. Smith was married to Miss Frances Louise Brown, of Evanston, 
 Illinois, May 20, 1874; the result of this union has been three sons and 
 one daughter. 
 
 WILLIAM HARVEY AUSTIN. 
 
 William H. Austin was born in Binghamton, New York, on Octo- 
 ber 22, 1859. His parents were Patrick and Mary (ColHns) Harvey. 
 His mother dying at his birth he was adopted when about five weeks 
 old by Allen and Sarah (Meigs) Austin. His father by adoption was 
 
526 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 himself a member of the legal profession, but retired from practice about 
 the time of the birth of the svibject of this sketch. 
 
 The family removed to Wisconsin in 1868 and settled at Portage 
 city during the succeeding year. In 1871 another change of location 
 was made to Milwaukee, where the father died in 1876 and the mother 
 in 1879. Before coming west the former had lost all his property in un- 
 fortunate speculations, and as he was not able subsequently to regain 
 his former financial standing, upon his death the adopted son was 
 thrown entirely upon his own resources. 
 
 But ere now the youth had obtained a valuable business experience, 
 as well as a good primary education. He had served in a clerical ca- 
 pacity for J. B. Shaw, the salt merchant, and J. B. Durand, the whole- 
 sale grocer. Subsequently he secured a position as assistant librarian 
 with the young men's association, afterward merged into the public li- 
 brary. While thus employed he also commenced to read law with 
 Joshua Stark, and in November, 1879, he was admitted to the practice 
 of his profession. 
 
 In 1880 Mr. Austin was appointed assistant district attorney under 
 W. C. AVilliams and two years thereafter became the junior member of 
 the firm of Brazee & Austin. This partnership continued for nearly 
 two years, when he formed a professional connection with the brilliant 
 lawyer, George B. Goodwin. The firm of Goodwin & Austin con- 
 tinued until the fall of 1884, when the senior member of the firm died 
 and the junior w-as received into the partnership of Austin & Runkel, 
 making the third member of Austin, Runkel & Austin, the senior mem- 
 ber of this firm being Judge R. N. Austin. While thus engaged in 
 active and successful practice, in the spring of 1889 he was appointed a 
 member of the school board. During the following year he became 
 assistant city attorney, his partner, R. N. Austin, being at the head of 
 the department, and when the latter was elected judge of the superior 
 court in 1891 Mr. Austin himself was promoted to the vacancy thus 
 created. His next partnership was with C. H. Hamilton, and his next 
 assumption of public office, in 1892, when he was elected to the legis- 
 lature from the sixteenth ward. An added compliment to his ability 
 
HISTORY OF THE BENCH AND BAR O.F WISCONSIN. 52? 
 
 was bestowed upon him, when he was placed in nomination for the 
 speakership by the repubHcan minority. Upon Mr. Hamilton's election 
 as city attorney in 1894, the firm of Austin & Hamilton was dissolved. 
 During this year the partnership of Austin & Fehr was formed. That 
 year Mr. Austin was elected senator from the fifth Wisconsin district. 
 He was also unanimously nominated by the republicans for judge of the 
 circuit court, in opposition to D. H. Johnson, but refused to allow his 
 name to be used in a movement which would bring judicial elections 
 into politics. 
 
 As a practitioner, Mr. Austin has been recognized as keen, incisive, 
 aggressive and yet even tempered and judicial. In the earlier stages of 
 his practice his ability as a criminal lawyer attracted general attention, 
 one of the most noteworthy cases with which he has been connected 
 was the murder trial of the State vs. McLeod. Of late years, however, 
 Mr. Austin has withdrawn virtually from criminal practice, devoting 
 himself chiefly to civil cases, corporation law and damage suits. As an 
 attorney, either for the county or the city, he has safeguarded the in- 
 terests of the public with ability, and has fully gained the confidence 
 of the people. On constitutional cjuestions his views are broad and 
 correct. For instance, when North Milwaukee applied for incorpora- 
 tion as a village he opposed the application in the circuit court and his 
 contention that the village incorporation law which had been in force 
 since 1859 was unconstitutional was sustained by the supreme court. 
 His view regarding the constitutionality of the law of 1887, providing 
 for the imprisonment of habitual drunkards, was also sustained by the 
 court of last report. 
 
 As a legislator Mr. Austin has fathered many measures for the bene- 
 fit of Milwaukee. Among the legislative measures placed to his credit 
 may be mentioned the bills relating to the civil service in the city and 
 county of Milwaukee, creating the park system of Milwaukee and allow- 
 ing the school board a voice in the selection of sites and plans — all of 
 which measures were introduced and supported by him. 
 
 Although it is self-evident from the facts above stated that Mr. 
 Austin is an indefatigable and systematic worker, he has the rare faculty 
 
528 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 of throwing off business cares with the close of business hours and 
 devoting himself to social pleasures and recreation. He reads much, 
 is possessed of a most retentive memory and rare literary discrimina- 
 tion, and, withal, is domestic in his tastes and his habits. Before mar- 
 riage his wife was Miss Jeannette Ferguson McLean, of Faribault, Min- 
 nesota, to whom he was united at Fox Lake, Wis., in 1882. Their 
 children are William McLean, Robert Harvey, Jeannette Grace and 
 
 Allen S. 
 
 ELL\S H. BOTTUM. 
 
 Elias H. Bottum was born in New Haven, Addison county, Ver- 
 mont, February 28, 1850, and grew to manhood in a quiet farming com- 
 munity in the heart of the picturesque Champlain valley. 
 
 The Bottum* family history in America dates back to 1670, when 
 two brothers emigrated from England and settled at Saybrook, Con- 
 necticut. For a century or more thereafter the descendants of these 
 two colonists settled mainly in Connecticut and Massachusetts, but 
 among the first settlers of Vermont was Simon Bottum,t the great- 
 grandfather of Elias H. Bottum, who removed from Lanesborough, 
 Massachusetts, to the Green Mountain state, settling at Shaftsbury, in 
 Bennington county. One of the grandsonst of the Vermont pioneer 
 was Elias S.- Bottum,** who married Mary M. Hoyt, a highly edu- 
 cated and accomplished woman, daughter of Rev. Otto S. Hoyt, a well- 
 
 *Two brothers Winterbottum settled at the mouth of the Connecticut river 
 about 1670. They disagreed and by act of general court had their names changed; 
 one taking the name of Wifiter — the other that of Bottum. 
 
 tSimon Bottum came up from i\Iassachusetts and settled at Shaftsbury before 
 the revolutionary war. He owned a large tract of land. He participated in the war 
 of the revolution; was captain of a volunteer company and fought in the battle of 
 Bennington. 
 
 tThe father of Elias S. Bottum, also named Elias, removed at an early age from 
 .Shaftsbury, Vermont, to New Haven, Addison county, in the same state, to take 
 possession of and to reside upon a large tract of land which his father had purchased 
 for him. He was an active, prosperous and influential farmer. Was honored politi- 
 cally; was a member of the Vermont senate and was county judge. He married 
 Diadama Squires. 
 
 **Elias S. Bottum succeeded to his father's farm. Although he was an invalid 
 during most of his life, he was a man of influence in the community. He died at 
 the age of fifty-six years. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 529 
 
 known clergyman of the Congregational church. A prosperous farmer 
 of the intelligent New England type, Elias S. Bottum was the owner 
 of a large tract of land in Addison county, which had been in possession 
 of the family since 1750. Elias H. Bottum, his son, was born and 
 brought up on this farm, leaving the old homestead for the first time 
 when sent away to fit himself for college. In early childhood he was 
 not strong physically, and not only was unable to attend school much 
 of the time, but found the solitary reading and study to which he was 
 strongly inclined, discouraged by his elders. Notwithstanding the fact 
 that he labored under some disadvantages, he made fair progress in his 
 studies, and the improved condition of his health after he was fifteen 
 years of age enabled him to apply himself so closely that he soon made 
 up for the time lost in his early boyhood. He was fitted for college in 
 Kimball union academy at Meriden, New Hampshire, and then entered 
 Middlebury college at Middlebury, Vermont, from which institution he 
 was graduated at the age of twenty-one years in the class of 1871. Im- 
 mediately after his graduation he went to New York city and began 
 reading law in the office of Evarts, Southmayd & Choate, the firm being 
 then, as now, probably the most notable in the United States for the 
 high character and distinguished ability of the lawyers composing it. 
 The duties of the position which he had obtained in this office proved 
 to be too exacting to allow him to devote as much time as he desired to 
 study, and after a short time he went to Washington, D. C, where he 
 obtained a clerkship in the government bureau of education, and while 
 thus employed he continued his law studies in the law school of Co- 
 lumbian college, and was graduated therefrom in 1873. 
 
 Immediately after his admission to the bar Mr. Bottum decided to 
 locate in Milwaukee — a decision he had reached after deliberate obser- 
 vation and examination of statistics regarding the resources of the state. 
 In November, 1873, he was joined by a former classmate, AValter E. 
 Howard, § and entered upon the practice of his profession as the head 
 of the firm of Bottum & Howard. tt 
 
 §Now professor of political economy at Middlebury (Vt.) college. 
 
 ftThis partnership was dissolved in 1874, when Mr. Howard returned to Vermont. 
 
530 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 By earnest and steady application to the requirements of his profes- 
 sion, he soon obtained recognition from the members of the bar and 
 the public, as being a conscientious, capable young lawyer, who dis- 
 played more than ordinary ability. In 1878 he entered into copartner- 
 ship with James G. Flanders, and the professional association thus 
 formed has continued to- the present time — a period of twenty years. 
 In 1888 the business of Flanders & Bottum and Winkler, Smith & Vilas 
 was consolidated, and the firm of Winkler, Flanders, Smith, Bottum & 
 Vilas was organized. 
 
 In the earlier years of his professional life Mr. Bottum engaged in 
 general practice, but in later years much of his time has been given to 
 patent cases. To this branch of the practice he has given most careful 
 consideration, and he has taken the highest rank among the able patent 
 lawyers of the west. That Mr. Bottum is an authority upon the law of 
 patents proves that he has diligently devoted himself to study, not only 
 of the law but also to philosophy and engineering, for to attain success 
 as a patent lawyer it is necessary not only to have a thorough knowl- 
 edge of law but also to be a master of mechanics, of philosophy, chem- 
 istry and of civil engineering. Constant study and application are re- 
 quired; each case introduces some mechanical, electrical or chemical 
 principle that must be studied and comprehended, and the degree of 
 success which a member of the bar attains in this branch of practice is 
 nearly always commensurate with the degree of knowledge of philoso- 
 phy and mechanics possessed by him. 
 
 Mr. Bottum was married on the 17th of October, 1876, at Schuyler 
 Falls, N. Y., to Caroline M. Bailey, daughter of Rev. Augustus F. 
 Bailey. They have one daughter, Mrs. Morris F. Benton of New 
 Brighton, N. Y. 
 
 Mr. Bottum has always been a republican, but has taken no active 
 interest in politics, nor held political position. He is a member of tTie 
 masonic fraternity, and has taken the various degrees in the blue lodge, 
 chapter and commandery. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 531 
 
 WILLIAM G. WHIPPLE. 
 
 For nine years preceding 1868 Mr. Whipple was a member of the 
 Milwaukee bar. He was born in Warehouse Point, Connecticut; grad- 
 uated from Wesleyan academy, Wilbraham, Massachusetts, Wesleyan 
 university, Middletown, Connecticut, and the law school at Albany, 
 New York. During part of the time he resided in Milwaukee he 
 was a member of the firm of Carter & Whipple, and at one time was 
 in partnership with S. Park Coon. Mr. Whipple was once the repvib- 
 lican candidate for district attorney of Milwaukee county. In 1868 
 he removed to Little Rock, Arkansas, where he continues to reside and 
 practice law. Since he has been there he has served as United States 
 district attorney and mayor of Little Rock, and been the republican 
 candidate for governor. 
 
 JOHN H. ROEMER. 
 
 Jacob Roemer, his father, was a merchant and a native of Germany, 
 as was Herman, his grandfather. His mother, Elizabeth Leinberger, and 
 her father, John, were also natives of Germany, parents and grand- 
 parents, both paternal and maternal, forming a portion of that great 
 emigration which resulted from the revolution of 1848. 
 
 The Roemers first settled in Pennsylvania and the Leinbergers in 
 Virginia, but subsequently met in Ohio, where Jacob Roemer and 
 Elizabeth Leinberger became man and wife. On the 26th of April, 
 1866, was born their son, John H. Roemer; the place of his birth, 
 Clarington, Monroe county. He enjoyed a thorough mental training, 
 passing with honors through Marietta college and Yale university. 
 While teaching he diligently prosecuted his legal studies under the 
 direction of John H. Holt, a prominent attorney at Wheehng, West 
 Virginia, and was admitted to the practice of his profession in 1891. 
 He subsequently returned to Yale and completed the law course in 
 1892. 
 
 Soon after graduating from the Yale law school Mr. Roemer de- 
 
532 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 cided to locate in Milwaukee and remained for four years associated 
 with the firm of Van Dyke & Van Dyke. 
 
 Mr. Roemer's abilities as an educator have been recognized by sev- 
 eral high grade institutions. He is one of the corps of special lecturers 
 of the Illinois college of law at Chicago, before which he delivers twelve 
 lectures annually upon the theme of negligence law. Before his admis- 
 sion to the bar, and while pursuing his legal studies, he was principal 
 of the Linsly institute at Wheeling, West Virginia, a military and clas- 
 sical academy, and the oldest institution of the kind in the Ohio valley. 
 His services at this institution were of high character and note, and are 
 given prominence in the work entitled "History of the Ohio Valley." 
 Mr. Roemer resigned his position as principal of the Linsly institute in 
 1889 to enter the law school at Yale, but was induced by Governor. 
 Fleming and the board of regents of the state normal school at Fair- 
 mont, W. Va., to become the head of that institution for one year. He 
 declined to remain longer out of the ranks of his chosen profession, and 
 at the end of the year he left the state normal school for Yale. 
 
 Mr. Roemer has the good fortune to have married a lady who is in 
 close and intelligent sympathy with his professional life. Carolme H. 
 Pier, who became his wife November 17th, 1897, is herself a practicing 
 member of the Wisconsin bar. 
 
 WILLIAM EDWARD CARTER. 
 
 William E. Carter, of the firm of Van Dyke & Van Dyke & Carter, 
 was born near Brighton, county of Sussex, England, on the 17th of 
 November, 1833, his father, William Carter, being a farmer, market 
 gardener and inn keeper. His mother's maiden name was Ann Fox, 
 both of his parents having died near Lancaster, Grant county, Wis- 
 consin, to which locality most of his relations emigrated in 1850. Being 
 the eldest of the family, William E. was kept very busy assisting his 
 father in his agricultural pursuits, in the market garden, and in the care 
 of the roadside inn, as hostler, being required to take care of the horses 
 of travelers as well as those owned by his father. 
 
 The last named occupation fell to him in his eleventh year, although 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 533 
 
 he continued to assist upon the farm and in the market garden. From 
 his ninth to his eleventh years, however, his father kept an inn at Hen- 
 field in the same county. The inn was located at Pyecomb, county of 
 Sussex, and here it was that the boy attended a public school for a short 
 time. With what thoroughness he was instructed may be inferred from 
 the fact that its one teacher had charge of more than one hundred pu- 
 pils. Another short season of training in a boarding school, with the 
 irregular instruction given him by his father and one of his aunts in the 
 common branches, virtually constitute the education which the youth 
 had received previous to coming to Wisconsin in his seventeenth year, 
 and all of this instruction was pi^ior to his eleventh year. 
 
 A firm will and economy in the expenditure of time will surmount 
 many obstacles. These elements of success the boy possessed. Con- 
 sequently, although he was industrious and faithful in the discharge of 
 the practical duties which devolved upon him while assisting his father 
 about the farm near Lancaster, he took advantage of every spare hour 
 to perfect himself in his studies. As he had early conceived an ambition 
 to master the principles and practice of law, the trend of his stvtdies 
 was soon in this direction. At length he entered the office of Hon. J. 
 Allen Barber, who had taken an earnest interest in the future of the 
 young man. For a short time he also pursued his legal studies with 
 Hon. J. T. Mills, of the same place. To the encouragement and ef- 
 fective tutelage of Mr. Barber, however, he gives the chief credit of that 
 wise guidance in his early career which means so much to every mem- 
 ber of the profession. 
 
 Mr. Carter was admitted to the bar in the fall of 1856 and practiced 
 alone at Lancaster until January i, 1861, when, at the invitation of Hon. 
 Stephen O. Paine, of Platteville, he removed to that place and became 
 an equal partner with him until his death in 1871. For some time after- 
 ward he practiced alone and then, in connection with his brother, 
 George B., formed the firm of William E. & George B. Carter. Thomas 
 L. Cleary was subsequently received into the firm and Mr. Carter's 
 brother withdrew, on account of ill health. A season of independent 
 
 practice followed, after which E. E. Burns became a partner in the firm 
 34 
 
534 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 of Carter & Burns. This connection continued until June lO, 1895, 
 when, upon the solicitation of the Van Dyke brothers (George D. and 
 William D.), he removed to Milwaukee to associate himself with them, 
 and formed the firm of Van Dyke & Van Dyke & Carter.. 
 
 Previous to his removal to the Cream city, Mr. Carter had estab- 
 lished a reputation as one of the most astute, legislators and lawyers 
 in Wisconsin. A republican from the organization of the party, he has 
 served the best interests of his adopted state for many years. From 
 1877 to 1883 he was a member of the board of regents of the University 
 of Wisconsin, and during a portion of this period he served in the legis- 
 lature of the state. First elected in November, 1876, he was a member 
 in 1877, 1878 and 1879, serving upon the judiciary committee in 1877, 
 upon the joint committee on the revision of the statutes in 1878, and as 
 chairman of the judiciary committee in 1879. 
 
 It is needless to say that during his long and honorable career Mr. 
 Carter has been connected with many remarkable cases, but a mention 
 of two of them will sufBce to illustrate the facility with which he grasps 
 the weak points in an opponent's position and the conclusive way in 
 which he exposes its instability. For instance, a few years ago, he was 
 chief counsel for plaintiff in the suit of Thompson vs. Horton, it being 
 an action for libel brought in the United States circuit court for the 
 western district of Wisconsin, sitting at Madison. The libel was in the 
 form of anonymous letters, purporting to have been written by a 
 woman to plaintiff's wife; to a banker at Fennimore, Wis.; and to 
 the Methodist minister, making most scandalous charges against Mr. 
 Thompson. When the trouble came about, the plaintiff had removed 
 to Dakota, and when Mr. Carter was called to take charge of the case, 
 he found that a detective had already been employed to obtain speci- 
 mens of the handwriting of the suspected Horton. Although the so- 
 called detective betrayed the interests of his employer and went over to 
 the defendant, Mr. Carter boldly turned the guns of the enemy against 
 his own ranks and completely routed him. In other words, Horton 
 and his attorneys unconsciously furnished the evidence which fastened 
 the guilt upon him beyond the shadow of a doubt. For the use of his 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 535 
 
 experts he had obtained and produced a number of letters, which, at 
 various times, he had written to friends and relatives. The anonymous 
 letters contained a number of curiously misspelled words which Mr. 
 Carter noticed were repeated in the genuine letters introduced by the 
 defendant. Strange to say, defendant's counsel did not notice this vital 
 point, but while they were making their arguments to the jury the 
 attorney for the plaintiff was carefully drawing off a list of these death- 
 dealing words. When it was produced the effect was crushing — the 
 plaintiff won his case then and there. 
 
 In the State of Wisconsin vs. John Groth et al., three men, father, 
 son and grandson, were charged with entering a barn in the night-time 
 to steal wheat, they not knowing of the presence of the farmer and his 
 wife who chanced to be sleeping therein that night. They claimed that 
 by the light of the moon, which shone in over the top of the quarter 
 opened barn door, they recognized the faces and the clothes of the cul- 
 prits. After fixing the position of the barn doors relative to the wheat 
 bin, the hour of the night when the event was claimed to have occurred, 
 the position of the sides of the barn with respect to the points of the 
 compass, the position of the barn door, the side of the barn exposed 
 to the rays of the moon, and the angle at which the light would be 
 obliged to strike the barn floor, Mr. Carter drew a diagram illustrating 
 these points and sent it to a Chicago friend who was requested to place 
 it in the hands of an astronomer in order to ascertain how much light, 
 under the circumstances, could have illuminated the barn floor. To the 
 uninitiated, this may seem like taking much trouble over a very small 
 matter; but upon this very small matter, or point, revolved the entire 
 case. Mr. Carter took this trouble because he had noticed that shadows 
 in the moonlight were very black and dense, and their edges very sharp, 
 and saw the important bearing this fact had upon the case, and he there- 
 fore realized that his case was won when he received a reply from an 
 astronomical expert, stating that upon the night in question, under the 
 circumstances, all the light that could enter the barn was a mere pencil 
 ray which would pass over the heads of the three men, strike the floor 
 near where the alleged witnesses were located, between them and the cul- 
 
536 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 prits, and leave the wheat bin and the space between the witnesses and 
 the culprits in total darkness. Manifestly, this would make it impossible 
 for those charged with the theft to be recognized; and these points 
 were so clearly demonstrated by Prof. Elias Colbert, the well-known 
 astronomer and editor of Chicago, who was called as an expert in the 
 case, that the district attorney promptly acknowledged that he had no 
 grounds for prosecution. It is such painstaking as this that goes far to 
 make the successful trial lawyer. 
 
 On the 4th of December, 1856, Mr. Carter was married to Ellen 
 Evans Rowdon, his family consisting of his wife and four children — 
 Byron B., born in i860, a resident of Hinsdale, a Chicago suburb; 
 Myrtle E.; Thomas P,, a law student, and Susan. 
 
 GEORGE C. MARKHAM. 
 
 George C. Markham was born in Wilmington, Essex county, N. Y., 
 May 7, 1843. The Markhams came from England before the war of the 
 revolution and settled, some in Connecticut, some in Pennsylvania and 
 some in Virginia. His grandfather, Barzillai Markham, was born in 
 Enfield, Conn., and fought in the revolution, serving as an ensign in 
 the 8th Connecticut. He was afterwards colonel of militia. His father, 
 Nathan Barzillai Markham, was born at Pittsfield, Vt., in April, 1796. 
 When two years old his parents moved to Essex county, N. Y., where 
 he married Susan McLeod, and to them were born six sons and four 
 daughters, the subject of this sketch being the youngest. Nathan Bar- 
 zillai Markham and his wife continued to live in New York state until 
 1870, when they removed to Manitowoc, Wisconsin, where their eldest 
 son lived, and spent the balance of their days there, he dying at eighty- 
 six and his wife surviving him less than a year. The McLeods were 
 from Scotland; they came to this country at an early day, and were 
 found fighting with the colonists in the days of '76. 
 
 Mr. Markham's father was engaged in the manufacture of iron at 
 Wilmington in Essex county, N. Y., for a period of about forty-five 
 years and, while that business afforded a comfortable support for him- 
 self and family, he did not succeed in the accumulation of property. 
 
^ 
 
 '■^^ c 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 537 
 
 in those days charcoal was used hi the manufacture of iron, and on this 
 account the elder Markham acquired title to a good deal of land, a 
 small portion of which could be cultivated, therefore Mr. Markham's 
 eaidy days were those of a farmer boy. By working on the farm and 
 then by teaching school he managed to acquire the means to pursue a 
 legal education and studied in the office of Hale & Smith, at Elizabeth- 
 town, New York, and was admitted to the bar in October, 1868, at 
 Canton, St. Lawrence county, N. Y. A few months afterwards, drawn 
 by the opportunities that have beckoned so many to the west as to the 
 land of promise, he moved to Milwaukee in March, 1869, and has made 
 his home there ever since. The story of Mr. Markham's life is a simple 
 one. It is the chronicle of years devoted to the practice of his chosen 
 profession, of energies unsparingly given to laying deep and solid foun- 
 dations of careful preparation and of building on them with thought- 
 fulness and labor; of untiring devotion to the interests of those who 
 have confided their business to his care and of unfaltering efifort to attain 
 honorable success. He has given his undivided attention to business, 
 turning a deaf ear to repeated solicitations to assume public office. His 
 clients have ever found in him a safe and reliable counselor, and, by 
 his careful attention to business and thorough knowledge of the various 
 duties of his profession, he has built up a most desirable clientage and 
 secured a comfortable competence. 
 
 Soon after Mr. Markham's arrival in Milwaukee he entered into 
 partnership with his older brother, Henry H. Markham, and so con- 
 tinued till 1879, when the connection was dissolved by the removal of 
 Henry H. to CaHfornia. He then became associated in practice with 
 Mr. George H. Noyes; this partnership lasted till Mr. Noyes became 
 judge of the superior court of Milwaukee county. 
 
 After remaining in practice by himself for several years Mr. Harold 
 W. Nickerson was associated with him in 1894, and in 1896 Mr. John F. 
 Harper was admitted and the firm became Markham, Nickerson & 
 Harper, which it still remains. 
 
 As a lawyer, Mr. Markham is distinguished by qualities which are 
 solid and enduring rather than showy and ephemeral, and by thorough- 
 
538 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 ness of work. He brings to the trial of his cases an experience gained 
 by years of practice and a knowledge of the law and of the particular 
 facts of the case, reached after most earnest and careful study. The 
 thoroughness of preparation and the complete mastery of the underly- 
 ing principles exhibited in a practice covering a wide diversity of cases 
 in courts of many different states has secured the confidence of a large 
 number of clients. In his extensive practice in the admiralty courts of 
 the great lakes Mr. Markham has participated in many of the notable 
 trials and in nearly all of the important cases of the last quarter of a 
 century. 
 
 At different times he has been largely interested in real estate and 
 has contributed to the growth and development of Milwaukee. For 
 many years he has been one of the largest stockholders in the Milwaukee 
 Dry Dock company. At one time and another he has had extensive 
 interests in vessels and steamers. In these different activities he has 
 always shown good business sense and a wise judgment that rank him 
 as a first-class man of affairs. 
 
 In 1895 he was elected one of the trustees of the Northwestern Mutual 
 Life Insurance company, a company ranking second to none, and im- 
 mediately placed in most important and honorable positions among the 
 trusted counselors of this very safe, conservative and most successful 
 institution. 
 
 In August, 1870, Mr. Markham was married to Rose S. Smith, of 
 Elizabethtown, N. Y. She died in 1893. Three children were born to 
 them, a daughter, Susie May, and two sons, Stuart H. and George F. 
 The home on Grand avenue is a comfortable residence in the most 
 desirable part of the city, and is the scene not only of domestic comfort 
 but of a refined and delightful hospitality that has secured the lasting 
 friendship of an extended circle of acquaintances. 
 
 GLENWAY MAXON. 
 
 Mr. Maxon is a native of Cedar Creek, Washington county, Wis- 
 consin, where he was born on the ist of December, 1851. The village is 
 located upon his father's farm and connected with the property is a 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 539 
 
 valuable water power. Mr. Maxon, Sr., in fact, surveyed most of the 
 land in that section of the state and, for many years, was one of the 
 most widely known and influential men of southern Wisconsin. 
 
 Densmore W. Maxon, the father of Glenway Maxon, was born in 
 Verona, Oneida county. New York, September 30, 1820; he studied 
 law in his younger days but never practiced the profession. He was, 
 in fact, of too active a disposition to confine himself to any one field. 
 Coming to Wisconsin in 1843 he first settled in Milwaukee, and three 
 years later located in Cedar Creek. Soon after becoming a resident 
 of the state he was appointed deputy surveyor of Washington county, 
 and took up land upon what afterward became the site of Cedar Creek. 
 He called himself a farmer, but was in reality for many years a man of 
 public affairs. In 1848 he was elected to the popular branch of the first 
 legislature, after the formation of the state constitution, and was re- 
 elected in 1852, 1867, 1868, 1869, 1870, 1871, 1882 and 1883. For 
 four years, 1857-1861, he served in the state senate, making a total 
 period of thirteen years which he gave to the service of the common- 
 wealth — a record surpassed but once in the history of Wisconsin. He 
 was a .candidate for lieutenant governor in 1865. Among the laws of 
 which he is the father is that which substitutes in place of commissioners 
 of the county the present board of supervisors. 
 
 It is acknowledged that one of the great engineering and public 
 works of the northwest is the Sturgeon Bay and Lake Michigan Ship 
 Canal, but it was many years from the time that the enterprise was con- 
 ceived before it was completed, the company being long embarrassed 
 for lack of funds. It secured a land grant for the encouragement of 
 the work, but the sales so languished that by 1879 the canal company 
 was on the verge of bankruptcy and was considering the propriety of 
 abandoning the project. During that year Mr. Maxon was placed in 
 charge of the land grant and pushed the sales with such energy and 
 ability that a large fund was realized, the canal being completed in 1884. 
 For fifteen years he was also president of the Wisconsin Railway Farm 
 Mortgage Land company, remaining at its head until its affairs were 
 
540 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 wound up by the legislature. He further served as president of the 
 board of trustees of the northern hospital of Wisconsin. 
 
 Glenway Maxon's mother was, before marriage, Miss Elizabeth 
 Truck, and is a woman of rare force and vivacity. She is of both 
 French and Dutch ancestry, undoubtedly a fact which is a partial ex- 
 planation of her character. The boy lived at the old homestead, at- 
 tending first the public schools of Cedar Creek* and then those of Mil- 
 waukee. Afterward he graduated both from the general department of 
 the University of Wisconsin (1873) and the law school of the same insti- 
 tution (1874). 
 
 Mr. Maxon began the practice of his profession in Milwaukee dur- 
 ing 1876 and has devoted much of his time to railroad litigation. One 
 of the noteworthy cases in which he has been retained is that of the 
 Madison & Portage Ry. Co. vs. the North Wisconsin Ry. Co. The 
 contest was over certain grants covering about 1,000,000 acres of land, 
 which passed from the general government to the state in 1856 and 
 which was subsequently donated by the commonwealth for the en- 
 couragement of railroad construction. The case was finally taken to the 
 United States supreme court and settled by compromise. 
 
 As a democrat Mr. Maxon has been an acknowledged force in his 
 party, believing that political principles should chiefly guide questions 
 of national concern and that party lines should not be tightly drawn in 
 municipal affairs. Although defeated for the mayoralty on this plat- 
 form in 1896 he made a remarkable run, reducing the usual republican 
 majority about two-thirds. He is a member of the executive committee 
 of the municipal league, which has done so much to elevate the stand- 
 ard of local politics. He is also upon the board of associated charities 
 of Milwaukee and a director of the Wisconsin training school for 
 nurses. 
 
 Mr. Maxon was married on the 8th of February, 1888, at New 
 Orleans, to Annbelle V. Horner, daughter of Joseph P. Horner, a 
 prominent lawyer of the Crescent city. Mr. Horner was a native of the 
 state of New York, being born March 18, 1837, and moving to the 
 south in the early '80s. Mr. and Mrs. Maxon have two living children 
 
hC^f^JAJ^LAAyiZtA^ 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 541 
 
 — Harriet and Glenway Maxon, Jr. ; another son, Joseph Horner, died 
 December 26, 1895, when five years of age. 
 
 WILLIAM H. TIMLIN. 
 
 Wilham Henry Timlin was born May 28, 1852, in Mequon, Ozau- 
 kee county, Wisconsin. His father, Edward Timhn, was a native of 
 Ireland, a farmer, and at one time held the office of county treasurer 
 of \\'ashington (then including Ozaukee) county. 
 
 W. H. Timlin had a common school education, was school teacher, 
 county superintendent of schools in Kewaunee county, studied law with 
 G. G. Sedgwick, and later with the firm of H. G. and W. J. Turner; was 
 admitted to the bar in 1878; married in 1880 at Kewaunee, Wisconsin, 
 to Celia L. Arpin. He practiced law first at Kewaunee, a short time at 
 Green Bay, and in 1886 moved to Milwaukee, where he has since been 
 engaged in the practice of law. 
 
 FRANK M. HOYT. 
 
 Mr. Hoyt is a native of Milwaukee; date of birth, August 25, 1853. 
 His father, Charles M. Hoyt, was one of the early and prominent mer- 
 chants of the Cream city who have enabled the metropolis to assume 
 that air of substantial elegance which has given the city a national repu- 
 tation. He was, however, educated as a lawyer and admitted to the bar 
 of Milwaukee county, and, although he never practiced, his legal train- 
 ing was of undoubted assistance to him in the conduct of his large busi- 
 ness interests. 
 
 The mother, Catherine E. Robinson, was of English descent, the 
 family emigrating from Connecticut at an early day, being known in 
 the vicinity of Rochester, N. Y., in 1730. 
 
 Frank M. Hoyt attended the pubhc schools of Milwaukee, also 
 the Christina cadet school, Markham's academy, Beloit college (two 
 years), and the law department of the Michigan state university, at 
 Ann Arbor. After studying law in the office of Mariner, Smith 81 Ord- 
 way, Milwaukee, he was admitted to the bar on the 9th of July, 1877; 
 
542 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 to practice before the state supreme court, September 13, J 878, and 
 before the United States supreme court, September 23, 1878. 
 
 Mr. Hoyt is most versatile as a practitioner, his duties talcing him 
 into all courts, high and low, where he is equally successful. He is an 
 active Mason and an influential democrat, having served for several 
 terms as chairman of the democratic county committee. 
 
 On the loth of November, 1880, Mr. Hoyt was married to Miss 
 Hattie P. Jones, his wife being a representative of an old and influential 
 New England family. They have lost two children and two are living — 
 Annette and Constance. 
 
 CHARLES FREDERICK HUNTER. 
 
 Charles F. Hunter, member of the firm of Nath. Pereles & Sons, 
 was born in Milwaukee in 1862, where his father, Edward M. Hunter, 
 was known for so many years as United States court commissioner and 
 a whole-souled, refined gentleman. The latter was born in Blooming- 
 burg, Sullivan county, N. Y., February 19, 1826, his parents, David and 
 Elizabeth (Smith) Hunter, being natives of the Empire state. The 
 Hunters originally came from the north of Ireland and the Smiths, Mrs. 
 -Hunter's ancestors, were of pure Scotch blood, both families settling in 
 America during the seventeenth century. 
 
 Edward M. Hunter was educated in the public schools and the acad- 
 emy at Montgomery, Orange county, being admitted to the bar in New 
 York city when twenty-one years of age. Two years later he removed 
 to Milwaukee and formed a partnership with S. Park Coon, afterward 
 attorney general of the state, and Charles James, subsequently collector 
 of the port of San Francisco. He served as private secretary during 
 Governor Barstow's short term of office and was also a member of the 
 state senate in 1853, when the famous impeachment trial of Judge 
 Levi Hubbell, of the Milwaukee circuit court, was brought before the 
 legislature for its consideration. As previously stated, Mr. Hunter 
 spent most of his long professional Hfe in Milwaukee in the discharge 
 of his duties as United States court commissioner, holding that office 
 at the time of his death, on the 13th of September, 1878. 
 
vi^AX.^ 
 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 543 
 
 The son, Charles F. Hunter, spent his boyhood in Milwaukee at- 
 tending the city schools, the high school and Markham's academy, one 
 of the best known educational estabHshments in Wisconsin. At an early 
 day he decided to adopt the legal profession, entering the ofSce of 
 Flanders & Bottum as a student and remaining with the firm for three 
 years — from 1878 to 1881. He became deputy clerk of the circuit court 
 in 1882', assiduously continuing his legal studies while performing his 
 clerical duties. Mr. Hunter was admitted to the bar in 1884, but held 
 his official position for two years thereafter. In 1886 he became a clerk 
 in the office of Nath. Pereles & Sons. Here he remained until January 
 I, 1889, and then formed a professional connection with Lewis M. 
 Ogden under the firm style of Ogden & Hunter. This latter was changed 
 to Ogden, Hunter & Bottum, by the admission of E. H. Bottum, and 
 so continued until May i, 1894. At that time Mr. Hunter became asso- 
 ciated with J. M. Pereles and T. J. Pereles, continuing the firm name of 
 Nath. Pereles & Sons, being now, as stated, a member of that old and 
 stanch firm. Its practice is virtually confined to real estate law and 
 equity, and within this province there is no firm in Milwaukee which has 
 a higher legal standing. In this connection it should perhaps be stated 
 that since 1896 Guy Despard Goff has also been added to the firm. 
 
 Charles F. Hunter is certainly a member of the bar whose promi- 
 nence is due to hard and conscientious work, methodically and ably 
 performed. He has concentrated his energies, has eschewed politics and 
 secret societies and given little of his time to anything outside of his 
 profession. He is, however, a member of the Milwaukee, Country and 
 Lawyers clubs, of Milwaukee, as well as of the reform club of New York, 
 the Milwaukee bar association and the American bar association. 
 
 HENRY J. KILLILEA. 
 
 Henry J. Killilea came to the Milwaukee bar in 1885, and at the 
 end of thirteen years of active practice has taken a place among the 
 leading lawyers of the city and state. Like a few other members of the 
 local bar who have achieved distinction, he is a native son of Wisconsin, 
 having been born in the town of Poygan, Winnebago county, June 30, 
 
544 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 1863. His father, Mathew Killilea, and his mother — who, before her 
 marriage, was Miss Mary Muray — were born in Ireland, and came to 
 Wisconsin in 1849. They were worthy pioneers of Winnebago county, 
 setthng in what was then practically a wilderness and carving out of the 
 forests of that region the farm upon which they still continue to reside. 
 As a boy Henry James KiUilea — as he was christened by his parents 
 — was an apt pupil, fond of books and the local debating societies, and 
 gave early evidence of the fact that the bent of his mind was toward 
 the law. Until he was twelve years of age he attended the country 
 schools; after that he was sent to the graded schools of Winneconne, 
 and still later to the normal school at Oshkosh, where he was fitted for 
 college. When not in school he did his share of work on the farm; 
 his home training was always of the kind which inculcates the idea that 
 industry is a cardinal virtue. After completing his preparatory course 
 of study at the normal school he taught school for a time at Clay Banks, 
 in Door county, and for two years thereafter taught what is now the 
 Oakwood high school at Oakwood, Wisconsin. As an educator he was 
 thorough, competent and entirely successful. Although he liked the 
 work, it was never his intention to continue teaching, but, like many 
 others, he used it as a stepping stone to the profession for which he had 
 determined to fit himself. A spirit of independence led him to prefer 
 that his higher education should be acquired through his own efforts, 
 although his parents were in full sympathy with his aims and purposes 
 and by no means averse in supplying needed funds. 
 
 In the fall of 1882 he entered the University of Michigan at Ann 
 Arbor, and remained there until he had completed his law studies, 
 graduating from that institution in the class of 1885. While in college 
 he was a close student, and at the same time was conspicuous for his 
 devotion to college sports. Active in all kinds of athletics, he was cap- 
 tain of a college football team, an enthusiastic patron of the gymna- 
 sium, and a warm advocate of the importance of physical culture. Leav- 
 ing the university ftilly equipped physically and mentally for the pro- 
 fessional work upon which he proposed to enter, he came at once to 
 Milwaukee, and in the summer of 1885 began the practice of law, form- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 545 
 
 ing a copartnership with Paul M. Weil. This partnership was dissolved 
 in 1887, and, later, he formed a partnership with Oscar Fiebing, the 
 firm thus constituted building up a very large and lucrative practice in 
 a comparatively short time. At the outset of his career as a practi- 
 tioner Mr. Killilea demonstrated his signal ability as a trial lawyer. For 
 several years he gave a large share of his attention to criminal practice, 
 and it is doubtful if any lawyer who has practiced at the Mil^ya^kee bar 
 has been more uniformly successful than has he, in the management of 
 this class of cases. Admirable tact, good judgment, and thorough 
 knowledge of the law involved in cases at bar have been notable among 
 his characteristics as a lawyer, and as an advocate of peculiar power and 
 effectiveness in addressing a jury he has few equals among the younger 
 members of the Wisconsin bar. A clear reasoner, he addresses himself, 
 in his arguments, to material points and wastes no time on matters 
 immaterial to the issues involved. Jealous of the interests of clients and 
 absolutely fearless in the defense of their rights, quick to perceive the 
 bearing of a proposition or the trend of evidence, he is no less skillful 
 and resourceful as an examiner than he is forceful and eloquent as an 
 advocate. 
 
 While he has been remarkably successful as a criminal lawyer he has 
 also built up a large general practice, and as a counselor and advisor 
 has steadily grown in popular favor. As one of the attorneys of the 
 Chicago, Milwaukee & St. Paul Railway company he has entered a 
 field of practice which gives a broad scope to his abilities, and as a 
 corporation lawyer he promises to be no less successful than he has 
 been in other branches of the practice. 
 
 Devoting himself conscientiously to his profession, sparing himself 
 no effort to promote the interests of clients and to broaden his knowl- 
 edge of jurisprudence, he has declined official preferment but at the 
 same time has taken an active interest in politics. A democrat in his 
 partisan affiliations, he has helped to formulate the principles and poli- 
 cies of his party in local and state campaigns for some years past, and has 
 also not infrequently taken a prominent part in the conduct of the party 
 campaigns. For three years he was a member of the democratic state 
 
546 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 central committee, and served three years also as chairman of the Mil- 
 waukee county central committee, proving himself capable and sa- 
 gacious as a political leader as he is successful as a lawyer. The only 
 public office which he has allowed himself to hold is that of member of 
 the Milwaukee school board, to which he was appointed in 1892 for a 
 term of three years. He was one of the organizers of the West Side 
 bank, in 1894, and is now one of the directors of that bank. 
 
 Genial in manner, frank and outspoken, and as fond of all kinds 
 of sports now as in his college days, Mr. Killilea has a peculiarly happy 
 faculty of making and retaining friends among all classes of people, and 
 at thirty-five years of age "his professional, social and political future 
 may be said to be full of promise. 
 
 He was married, in 1888, to Miss Louise M. Meinderman, who was 
 born in Michigan and graduated from the University of Michigan 
 in the class of 1888. 
 
 THOMAS HENRY GILL. 
 
 Thomas H. Gill, general attorney for the receivers of the Wisconsin 
 Central lines of railroad, is a native of Wisconsin, born at Madison on 
 April 7th, 1858. His parents were William J. Gill, a native of Canada, 
 and Hannah (Lantry) Gill, who was born at Potsdam, St. Lawrence 
 county. New York, and who still lives at Madison. 
 
 Mr. Gill received his preliminary education in the Madison public 
 schools, and entered the Wisconsin state university in 1872, where he 
 graduated with the class of ''yj, at the age of nineteen. He immediately 
 entered the university law school at Madison, and upon his gradua- 
 tion in the following year was admitted to the bar, when still but twenty 
 years of age. During his entire college and professional courses he 
 worked in the office of the clerk of the United States courts, who was 
 a close personal friend. About the year 1874, he was appointed deputy 
 clerk and master in chancery of these courts, continuing in those offices 
 for several years after his admission to the bar. 
 
 He began the practice of his profession at ]\Iadison in 1879. In 1880 
 he formed a partnership there with H. J. Taylor, now of the Sioux City, 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 547 
 
 Iowa, bar. In 1883 he became associated in practice with E. W. Keyes, 
 at Madison, under the firm name of Keyes & Gill. In a short time, 
 however, important business interests required him temporarily to 
 abandon the practice, and to devote his entire time for about four years 
 to the management of an extensive wholesale tobacco trade. 
 
 In April, 1887, he entered the service of the Wisconsin Central 
 companies as claim agent, and has been continuously in the service of 
 these lines of railroad to the present time. He has risen step by step 
 to his present responsible position, always enjoying the confidence of 
 the officers and directors. In 1890 he became assistant general solici- ■ 
 tor, and when the Wisconsin Central lines passed into the control of the 
 Northern Pacific railroad company as lessee, in 1891, he was appointed 
 to the same office for the lessee company, with headquarters at Chi- 
 cago. When the lease was surrendered in 1893, and the receivers of 
 the Wisconsin Central companies were appointed, he was retained by 
 the receivers as their general attorney, returning to Milwaukee. This 
 office he still fills. 
 
 Mr. Gill has led a life too busy to indulge extensively in the amuse- 
 ments of society, although he enjoys the warm devotion of a wide circle 
 of friends. He is a member of the college fraternity of Psi Upsilon, and 
 is a loyal son of his alma mater. College sports and athletics, and all 
 gentlemanly sports, find in him a warm sympathizer and supporter. 
 Politically, while in conviction and sympathy a republican, he has never 
 sought nor desired political preferment or notoriety, and has always 
 maintained an attitude of independence. He is unmarried, but main- 
 tains his own home, where he loves to receive and entertain his friends, 
 and to gather about him works of art, in the collection of which he loves 
 to spend his leisure hours. 
 
 CONRAD KREZ. 
 
 Conrad Krez, lawyer, legislator, soldier and poet, was born in the 
 palatinate of Bavaria, a province on the Rhine in Germany, April 27, 
 1828; educated at Spires and in the universities of Munich and Heidel- 
 berg. He came to the United States in 185 1, and resided in New York 
 
548 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 city from the opening of that year until August, 1854, when he came 
 to Wisconsin and settled at Sheboygan, where he resided until 1885, 
 when he became a resident of Milwaukee, where he remained until his 
 death. From the time he settled in Sheboygan county he practiced 
 law except while in the military service or holding an office which re- 
 quired all his time. He was city attorney of Sieboygan in i857-'58; 
 district attorney of Sheboygan county to the fall of 1862, and from 
 1870 to 1876 inclusive. Mr. Krez resigned the district attorneyship in 
 1862 and enlisted in the twenty-seventh Wisconsin when that regiment 
 was organized; he was commissioned its colonel. During his military 
 career he was brevetted brigadier general. On concluding his military 
 service he returned to Sheboygan, resumed the practice of the law 
 and continued therein until 1885, when he was appointed collector of 
 customs of the port of Milwaukee, to which city he removed his resi- 
 dence; at the expiration of his ofificial term he began the practice of the 
 law, and continued therein until his death. In 1891 he was a member 
 of the assembly and in 1892 was elected city attorney for Milwaukee 
 and served out his term. He died March 8, 1897. 
 
 Col. Krez has left an excellent record as a lawyer, legislator, soldier 
 and citizen. In politics he was a democrat, his creed being expressed 
 by himself thus: "Believes in an indestructible union of states, subordi- 
 nate to the federal- government in all matters in which the same is 
 clothed by the constitution with sovereignty, but in all things else sov- 
 ereign themselves." The tedium of his law practice was relieved by 
 literary labors, which gave him considerable renown as a poet, particu- 
 larly in Germany and among educated German-Americans. 
 
 H. A. J. UPHAM. 
 
 H. A. J. Upham, younger of the two sons of Hon. Don A. J. Up- 
 ham, has succeeded his father, as a member of the Milwaukee bar, and 
 maintains the prominence of a name long a familiar and honored one 
 in this connection. Born in Milwaukee August 14th, 1853, Horace 
 Alonzo Jac]ues Upham belongs to the generation of young men who 
 have been called upon to shoulder important responsibilities bequeathed 
 
IP^^^ 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 549 
 
 to them by the pioneers who were their immediate predecessors. He 
 received his early education in the schools of Milwaukee and then 
 entered the University of Michigan at Ann Arbor. He graduated from 
 that institution in 1875, and upon his return to Milwaukee immediately 
 began the study of law, first in the ofSce of Wilson Graham and after- 
 ward in the office of Jenkins, Elliott & Winkler, Judge James G. Jen- 
 kins, now on the United States circuit court bench, being at that time 
 the senior member of the firm. Admitted to the bar in 1877, he became 
 identified two years later with one of the oldest law firms in the city — 
 that of Wells & Brigham. In 1852 Charles K. Wells and Jerome R. 
 Brigham formed a partnership which had been in existence twenty- 
 seven years when Mr. Upham entered the firm as junior member, and 
 the firm name was changed to Wells, Brigham & Upham. With an 
 established reputation as capable and successful lawyers in general prac- 
 tice, the members of this firm had become noted as safe, conservative 
 and candid counselors, and especially successful in litigation where large 
 interests and difficult questions were involved; and when Mr. Upham 
 entered the firm he took at once an active part in the important mat- 
 ters of which it had charge. Real estate, commercial and corporation 
 law, as well as the care of estates, the guardianship of trust funds, and 
 watchfulness of financial investments of clients, were all parts of the 
 practice of this firm, and in the conduct and management of the affairs 
 committed to his charge Mr. Upham has evinced the tact, good judg- 
 ment and business ability of a capable man of affairs, as well as the care 
 and conservatism of a well-equipped and thoroughly competent lawyer. 
 Among the suits commenced by Mr. Upham is that of Hawley 
 vs. Tesch, which was prosecuted by Mr. Upham for eight years, having 
 been twice appealed to the supreme court. In this suit he was in every 
 way successful. The suit has become noted on account of the large 
 amount of property involved and the fact that as a result of the litiga- 
 tion the clients of Mr. Upham have not only won their lawsuit but also 
 recovered their property. (See volumes seventy-two and eighty-eight 
 of the Wisconsin Reports.) By means of this litigation the heirs of 
 Cyrus Hawley recovered several hundred thousand dollars' worth of 
 35 
 
550 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 property, of which they would never have become possessed except by 
 the successful prosecution of this suit. 
 
 The deaths of Charles K. Wells in 1894 and of Jerome R. Brigham 
 in 1897 left Mr. Upham the surviving memljer of the firm of Wells, 
 Brigham & Upham. On May i, 1897, the new firm of Fish, Gary, 
 Upham & Black was organized, by the consolidation of the business of 
 the two firms of Wells, Brigham & Upham and Fish & Gary; and since 
 that date Mr. Upham has continued the practice of law as a member of 
 the new firm. 
 
 Mr. Upham is in full sympathy with progressive movements of all 
 kinds, and has contributed in many ways to the advancement of busi- 
 ness enterprises of various kinds, and also to the advancement of social, 
 moral and other reforms. He was married in 1889 to Mary Lydia, 
 daughter of Thomas A. Greene, one of the older merchants, and for 
 many years one of the best known citizens of Milwaukee. 
 
 WINFIELD SMITH. 
 
 The family from which Mr. Smith is descended has given him, 
 through the gift of nature, many of the qualities of which his success 
 has been the fruit. His father. Captain Henry Smith, of the United 
 States army (Sixth infantry), and a graduate of West Point, was of 
 Scotch-Irish descent, although born in Stillwater, New York; while 
 his mother, Elvira Foster — also a member of one of the best families of 
 New England, afterwards resident in Watertown, New York, where 
 she was born — was a lady of unusual education and culture. The 
 father saw severe military service in the Blackhawk war, but resigned 
 his position in the army in 1835 or 1836, and for several years was in 
 charge of important harbor improvements under the direction of the 
 government, on Lake Erie. He also served for two terms as a member 
 of the Michigan legislature.. When war with Mexico was declared he 
 immediately ofTered his services to his country, and was appointed in 
 1847 quartermaster on the general stafif with the rank of major. He 
 was on duty at Cincinnati in May of that year (1847) when he received 
 orders to proceed immediately to Vera Cruz, and went directly to the 
 seat of war. Knowing the dangers of the climate, he hardly expected 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 551 
 
 to return, and made his arrangements and addressed his farewells with 
 that end in view. He reached his destination in the latter part of June, 
 and assumed the discharge of his duties on July i. In about two weeks 
 he was stricken with yellow fever, which was then raging with terrible 
 violence, and died on the 24th of July.* 
 
 The son, Winfield Smith, was born at Fort Howard, in the terri- 
 tory of Michigan, afterwards Wisconsin, where his father was then 
 stationed, on August 16, 1827. The name bestowed upon the small 
 stranger was in tribute to General Winfield Scott, of whose military 
 family Captain Smith was a. member for five years. As the advantages 
 of the public and private schools were hardly to be secured in abun- 
 dance in the day and environment of his youth, his education was a 
 matter of unusual personal care on the part of his parents, and so fully 
 did they amend and supplement such opportunities as he had that in 
 1844, then in his seventeenth year, he entered an advanced class in the 
 Michigan state university and was graduated with high rank two years 
 later. He developed remarkable aptitude in the sciences and mathe- 
 matics, displaying a remarkable progress in both, and standing at the 
 head of his class in the study last named. He had been behind his class 
 in Greek upon entering, but soon caught up and held his own with the 
 rest. As' he had become thoroughly proficient in French while at 
 school in Watertown, New York, in 1840, and as he learned the Ger- 
 man after removal to Milwaukee, and also reads Italian fairly and speaks 
 it somewhat, he may be regarded as a linguist of no ordinary grade and 
 adds to his other hues of culture those possible only to one who has 
 access to the learning and literature of other lands. 
 
 Upon his departure from the university in 1846 the young man 
 took charge of a private school in Monroe, Michigan, where his father 
 was professionally located, and which had been his home since 1833.. 
 In the year following he retired from the school and assumed the duties 
 of private tutor to a small class in advanced classics, which gave him 
 time to fulfill his long-cherished desire to commence the study of law. 
 
 *The proportion of the American soldiers who died of this disease in Vera Cruz, 
 that summer, was greater than the proportion of those who were killed in all the 
 battles of that war. 
 
552 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 In 1848 he entered the office of Isaac P. Christiancy, afterwards a jus- 
 tice of the supreme court of Michigan and later senator of the United 
 States. He appHed himself to his legal studies with earnest industry 
 and mental thoroughness and when he was admitted to the bar it was 
 with an equipment of knowledge and reading that few young lawyers 
 possess. In October, 1849, he was led to the decision that the young 
 and growing town of Milwaukee was a promising place in which to 
 commence the real labor of life, and accordingly decided to make it his 
 home. He entered the office of Emmons & Van Dyke, a firm of high 
 standing, where he still pursued his studies, and soon entered upon 
 practice. In February, 1850, he was admitted to the supreme court 
 of Wisconsin, over which Judge Whiton then presided. In 185 1 he 
 opened an office of his own and remained by himself until 1855, when 
 he formed a partnership with Edward Salomon, afterwards governor 
 of Wisconsin. This connection continued for fifteen years, and was 
 only severed because of Mr. Salomon's departure to New York. From 
 1869 to 1875 he was associated with Joshua Stark, vmder the firm name 
 of Smith & Stark, and in later years was also associated with Mat- 
 thew H. Carpenter and A. A. L. Smith, under the firm name of Car- 
 penter & Smiths. Upon Mr. Carpenter's death the firm name was 
 changed to Winfield & A. A. L. Smith. This association terminated 
 in 1883. 
 
 Soon after his admission to the bar, and while on a visit to his old 
 home in Michigan, Mr. Smith was appointed tO' the office of United 
 States commissioner and master in chancery by Judge A. G. Miller, of 
 the United States court. This honor was bestowed upon him without 
 his knowledge or solicitation, but he accepted and performed nearly all 
 the business of that character in Milwaukee until his resignation in 1864. 
 Some of the questions brought to his judicial decision were of great 
 importance, as the period covered the exciting slavery agitation of 1850 
 to i860, and the greater portion of the civil war. Among them were 
 the fugitive slave riots and the Sooth prosecution. 
 
 In 1862, when James H. Howe resigned the office of attorney gen- 
 eral of Wisconsin to enter the Union army. Governor Salomon, who 
 was compelled to confront many crises and take many daring risks be- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 553 
 
 cause of the exigencies of war time, asked his old partner to accept the 
 vacancy, knowing that in Mr. Smith he woukl possess an adviser whose 
 knowledge of the law was reliable, whose patriotism was unquestioned 
 and whose personal friendship was of the most loyal character. The 
 ofifer was accepted, and when the term expired in 1863 the people of 
 Wisconsin ratified the choice of the governor by electing Mr. Smith to 
 the full term, which terminated on January i, 1866. He entered upon 
 the discharge of his duties with the same intelligent devotion that he had 
 bestowed upon the business of his clients and served the state as loyally 
 as he would have served his own personal interests.* He never left his 
 work to others, but appeared personally before the supreme court in all 
 the cases in which the state was interested, with the exception of a few 
 of a criminal character, which the district attorneys had prepared and 
 desired to present in person. In this labor Mr. Smith was successful, 
 with hardly an exception. 
 
 It was while holding the office of attorney general that Mr. Smith 
 was able to perform a large service to the state, to win a great measure 
 of public applause, and to demonstrate the possession of industry, abil- 
 ity and legal knowledge, by his course in connection with the Mil- 
 waukee & Rock River canal claims, and the unadjusted accounts be- 
 tween ^^^isconsin and the United States. The full history of that service 
 cannot be recounted within the limits of this sketch, but only enough 
 to sh'ow the magnitude of the interests involved and the difficulties that 
 lay in the way of any settlement advantageous to the state. 
 
 The canal company was an outgrowth of that spirit of improve- 
 ment that was apparent at Milwaukee even in an early day. Congress 
 had granted to the territory of Wisconsin, to aid in the building of a 
 canal between Lake Michigan and Rock river, a large amount of 
 public land; and it was the expectation of the canal company to obtain 
 these lands when it should build the canal connecting the points desig- 
 nated. The work was commenced, and all of the line that was ever 
 built was one mile within what is now the city of Milwaukee. From 
 this it obtained an immediate benefit in the shape of valuable water 
 
 *To quote General Fairchild's terse opinion of Mr. Smith's labors: "He was the 
 best attorney general Wisconsin ever had." 
 
554 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 power, as it included a dam across the Milwaukee river. Claims for 
 "relief" from the territory had been suggested or advanced from time 
 to time, and finally crystallized into a demand that all money ex- 
 pended by the canal company ought to be refunded by the territory, 
 as the latter had never given the company the lands obtained from the 
 general government for canal purposes. The company also set up the 
 claim that it had been prevented from going on with its work because 
 the territory had refused to deliver these lands: that great damage had 
 befallen its interests because of this refusal, and that instead of fostering 
 its interests as expected the territory had dissolved all connections with 
 the company and sold the lands to others. Not only was this claim ad- 
 vanced at home, but presented to Congress; and while that body did not 
 do anything for the company's relief, it still gave enough attention to 
 the demand to withhold from \\'^isconsin the proceeds of the swamp 
 lands, which, under other laws, were due tO' the state. The repre- 
 sentatives of the company seemed, as they claimed, to have sufificient 
 influence with Congress to prevent the state from securing these and 
 other lands, and the proceeds of their sales, to a large amount. In 
 short, while the company made small progress in the way of securing 
 any benefits for itself, it was still able to embarrass M' isconsin by caus- 
 ing the general government to defer its settlements with the state, 
 which had succeeded to the rights of the territory, until the canal ques- 
 tion was adjusted. All payments by the general government to the 
 state on account of sales of land were stopped. Mr. O. H. Waldo, one 
 of the strong men of the Milwaukee bar, was attorney for the com- 
 pany, and by many brilliant and plausible arguments caused many mem- 
 bers of Congress, members of the legislature and others to believe that 
 Wisconsin had really abused and injured the ^Milwaukee & Rock River 
 Canal Company. 
 
 To go back a moment: These lands, on the line of the proposed 
 canal, between Milwaukee and Rock river, had come into great demand 
 for actual settlers. The territory retained possession of them for some 
 time, but was finally compelled to sell, rather than retard settlement by 
 keeping them longer out of the market. A proposal was made to re- 
 fund the money received in these sales to the general government, but 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 555 
 
 the latter declined to accept it. The territory would not give it to the 
 canal company for the reason that it already had advanced the com- 
 pany more than enough money to pay for the proportionate share of the 
 work done. The territory had already borrowed ten thousand dollars 
 at a great sacrifice; and it became evident after a time that the company 
 never could and never would construct the canal; that the proceeds of 
 the grant of land would pay but a trifling part of the cost of the canal, 
 and that the corporation had no other means with which to build it. 
 The territory, therefore, very wisely refused to entrust to the corpora- 
 tion the lands or the proceeds thereof, which would have been simply 
 lost to the public. 
 
 We do not know the aggregate of the claims made by the canal 
 company upon the state, but it is said to have been up in the hundreds 
 of thousands of dollars. The small amount of knowledge held by the 
 after generation as to the facts of the case, the difficulty of obtaining 
 information, as all the books and documents were in the hands of the 
 claimants, and the ingenuity and persistence of Mr. Waldo' and his 
 coadjutors all combined to aid the company's cause; and had the mat- 
 ter only received a superficial examination or been left in the hands of 
 ordinary competence, a settlement far less honorable to the state than 
 was secured would have been the result. The time came in 1862 when 
 a formal movement was made to secure such settlement and the Htiga- 
 tion took steps leading in that direction.* A commission was appointed 
 and in 1863 Governor Salomon explained its action in a brief communi- 
 cation to the legislature in which he said: 
 
 "Executive Office, Madison, Feb. 2, 1863. 
 "To the Senate and Assembly: I lay before you the report of a 
 board of commissioners appointed in 1862 to ascertain and settle the 
 liabilities, if any, of the state of Wisconsin to the Milwaukee & Rock 
 River Canal Company. The opinion of the attorney general, which 
 forms a part of this report, I commend tO' your especial and careful 
 consideration." 
 
 *It should be remarked, in passing, that a large share of credit should be awarded 
 J. Allen Barber for having caused the postponement of the claim in the legislature 
 long enough to have it thoroughly understood. 
 
556 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 The governor added that it was the province of the legislature to 
 determine what further steps should be taken. The commissioners, in 
 their report, said that they placed the matter in the hands of the at- 
 torney general, Winfield Smith, to make an examination of the facts 
 and to give his opinion of the law. His reply convinced them that the 
 canal company had no claim against the state. 
 
 Mr. Smith's report, which was exhaustive and showed complete re- 
 search, bore date of December 31, 1862. It recited the facts connected 
 with the history of the case, disposed of the various claims, one after 
 another, and summed up his conclusions in the following manner : 
 
 "Upon the whole, I conclude that the Milwaukee & Rock River 
 Canal Company acquired no rights through the act of Congress grant- 
 ing lands to the territory for the purpose of aiding in opening the 
 canal. That it acquired no rights through any subsequent act of the 
 territory (except, perhaps, for a time under a contract afterward com- 
 pletely performed). That the canal company sustained no damage by 
 the legislative act of which it now complains." 
 
 After the presentation of this opinion from the attorney general of 
 the state the canal company was unable to get any legislation what- 
 ever from the state in its favor, yet still possessed enough influence in 
 Congress to obtain action, which, it should be remarked, the state did 
 not oppose. On July i, 1864, Congress passed a joint resolution which 
 ordered that Wisconsin should be charged for the land given under the 
 canal grant (125,431 acres); and that, on the other hand, the state should 
 be credited with the amount expended in selling the lands, and what- 
 ever had been paid to the construction of the canal. It was further or- 
 dered that the state "also shall credit to the canal company such money 
 as was used in construction to that date and in managing and keeping 
 the same in repair" — this sum not to exceed the amount charged against 
 the state of Wisconsin on the sales of said canal lands; the same to be ■ 
 received by the company in full satisfaction of all claims against Wiscon- 
 sin or the United States. 
 
 The claims of the company against the state had been great, and 
 this resolution gave it all it had proper claim to — not to exceed the 
 amount received bv the state from sales of the canal lands. The state 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 557 
 
 Stood ready to effect a settlement, and had been in that condition of 
 readiness for years. 
 
 The commissioner of the land office was appointed to audit the 
 claims and determine what should go to the company and what to the 
 state. Attorne}' General Smith had been carefully investigating all the 
 sources of information at his command, and proceeded to Washington 
 fully prepared to produce the truth and defend the interest of the state 
 at all points. He spent the greater portion of the winter of 1865 in the 
 national capital, Mr. Waldo being present in behalf of the canal com- 
 pany. The result of that extended hearing can best be given in the 
 final report as made by Mr. Smith to the governor of Wisconsin on 
 March 24, 1865. The governor, James T. Lewis, on forwarding it to 
 the legislature, made use of the following appreciative words: 
 
 ■'I inclose herewith a report from the attorney general to me of his 
 action in the premises and take occasion to say that he is entitled to 
 great credit for the energy and ability he has displayed in aiding to 
 bring about this adjustment." 
 
 The report gave a detailed statement of the amount of labor required 
 to get all the facts in the case — a herculean task in view of the long time 
 that had elapsed. In conclusion the attorney general said: 
 
 "I take pleasure in announcing that with these exceptions (certain 
 minor sums which are enumerated) every item claimed by the state was 
 finally allowed by the commissioner, and the claim was settled at 
 $56,527.14. 
 
 "The account then passed to the secretary of the interior. In his 
 office it was carefully reviewed and I furnished explanations upon the 
 points which were misunderstood or doubted, including some which 
 had not been previously objected to. I had reason to feel that these 
 explanations were satisfactory and that the amount allowed by the com- 
 missioner would not be reduced. I was at this point summoned to 
 Madison to attend to certain pressing office business, and, therefore, I 
 was unable to remain until the account should be formally passed. I 
 learn that the adjustment had since been completed, without making 
 any changes. 
 
558 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 "The summing up the canal fund account now stands thus: 
 
 Amount charged by United States for canal lands at $1.25 
 
 per acre . . .$156,789.77 
 
 Amount received in loan, which, with the interest paid, is 
 
 now allowed to the state by the United States ...... 1,000.00 
 
 Total .* $15778977 
 
 Deducting expenditures of the state allowed on above 56,527.44 
 
 Amount due from state $101,262.33 
 
 This adjustment opens to the state the enjoyment of the five per 
 cent fund, so-called, which has been retained by the United States until 
 moneys received by the territory on sale of the canal lands should be 
 accounted for. The amount of that fund was, on the 31st day of De- 
 cember, 1862', $250,139.11. Deduct from this $101,262.33, the bal- 
 ance fund due from the state as above, and the remainder, now owing 
 to this state, is fixed at $148,876.78. 
 
 Every dollar of this sum and the far larger sums since flowing into 
 the fund, have been paid over to the state without further delay or ob- 
 jection. The amount that went to the canal company was just what 
 it expended and no more; what the state was willing it should get and 
 what the attorney general believed was its proper and legal due. 
 
 Another case of importance which contained matters of unusual 
 public interest was that which concerned the celebrated draft riot, and 
 the enforcement of the draft in Ozaukee county during the war, involv- 
 ing the constitutionality of acts of Congress authorizing the con- 
 scription of citizens and their enrollment in the military service of the 
 country; also the power of the governor of the state to enforce those 
 acts. It was a time of great excitement, and a crisis in public affairs, 
 party spirit running high and every word and movement attracting an 
 excited public attention. Upon the final appeal to the supreme court 
 all the acts of Governor Salomon in enforcing the draft, including the 
 arrest of citizens and their imprisonment in the military camp at ]\Iadi- 
 son, were declared to be constitutional and in pursuance of law, and the 
 power of the government to act for its own preservation fully sus- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 559 
 
 tained. Mr. Smith, as attorney general, exhibited a complete mastery 
 of all the features of the case, and his success in the final decision of the 
 supreme court was due to close study, careful arrangement, and the full 
 preparation made for the trial by the governor and himself, in which 
 Mr. Carpenter voluntarily gave able assistance. 
 
 In 1872 Mr. Smith was selected as the representative of the seventh 
 ward of Milwaukee in the state legislature. He was not a candidate for 
 the place and did not wish it, but the people of that ward — one of the 
 most intelligent in the city — insisted upon it, and he could not well 
 refuse. He gave three months of the hardest work of his life to his 
 duties in that capacity, and from the first was one of the recognized 
 leaders of the house. He was chairman of the judiciary committee at 
 a time when important amendments to the constitution had just been 
 adopted, and it threw severe and continued labors upon that commit- 
 tee, whose duty it was to see that all legislation was in accordance 
 therewith. The greater part of the work performed by Mr. Smith in 
 this capacity was therefore of a negative character; and so busy did it 
 keep him that he had time and occasion to draw but one bill, which was 
 one of the shortest ever placed upon the statute books: "Section i. 
 The day of the general election shall be a legal holiday."* 
 
 Mr. Smith procured the passage of several acts, among which was 
 one that must be regarded as one of great practical importance. It 
 was the law authorizing the school lands commissioners to loan 
 from the school and other trust funds of the state, to the city of Mil- 
 waukee, monev for the construction of the water works of the city, then 
 about to be undertaken. This plan of making several questions answer 
 each other, and all for the public good, was originated by Mr. Smith 
 and had the advantage of providing for the use of state funds then 
 lying idle by a loan made perfectly secure; and also of furnishing money 
 to the city at a time when its credit was not as good as at present, of 
 
 *Some clerk of the assembly who could not make tip his mind to sanction an 
 act so contrary to his idea of proper legislation, added under a general rule which 
 gave him authority, another section, which, although he did not know it, was an 
 absurdity. "This act shall take effect from and after its passage." It obviously could 
 not take efifect until the day of election, which would be in November, by which time 
 it must take efifect under the constitutional provision. 
 
560 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 increasing the school fund and promoting the water works. This plan 
 was opposed first as a novelty, but before the end of the session its 
 advantage was so clearly seen that its supporters were largely in the 
 majority. Mr. Smith also strongly supported the law making an an- 
 nual appropriation of ten thousand dollars for the university of Wiscon- 
 sin, in addition to. the funds it already possessed. He had previously 
 suggested and ardently supported the legislation conferring the right to 
 vote on the soldiers without the state. 
 
 Mr. Smith might have spent a large portion of his time in public 
 station had he followed the wishes of those about him instead of con- 
 sulting his personal choice and his love for the work of his profession. 
 In 1859 he was nominated for state senator by the republican conven- 
 tion of the sixth district, but was constrained to decline the honor be- 
 cause, as he said to those who had thus honored him by their choice, 
 "there are confided to me in professional and various capacities rights 
 and interests of other persons which demand my whole time and atten- 
 tion. I am not at liberty to neglect or lay down those trusts at this 
 time, and I cannot fulfill them consistently with that devotion to public 
 interests which should be exacted from a senator representing one-half 
 of Milwaukee county." In 1876 he was tendered the appointment of 
 United States district attorney to succeed Judge Levi Hubbell, resigned, 
 but declined to accept. When Judge Miller and afterwards Judge 
 Howe retired from the bench of the United States court of the eastern 
 district of Wisconsin, Mr. Smith was upon both occasions urged to ac- 
 cept the place, as he was also urged to become a candidate for the 
 supreme bench of the state upon Judge Ryan's death. In 1881 it was 
 the almost unanimous wish of the bar and public that he should accept 
 a republican nomination or become an independent candidate for circuit 
 judge to succeed Judge Small, whose term was to expire that year. In 
 all these cases he not only refused to take any step toward the fulfill- 
 ment of the general desire, but, on the contrary, prevented his friends 
 from using his name in connection with the position. 
 
 Mr. Smith has been connected with the social and business life of 
 Milwaukee in many ways other than political or legal, only a portion of 
 which can he mentioned in this summary of his life's labors. He has 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 561 
 
 been vice president of the Wisconsin Humane society, and an active 
 worker for that noble organization; was the first president of the Mil- 
 waukee Chess club; in 1851 he was secretary of the Young Men's asso- 
 ciation, a society founded for the advancement of education and culture, 
 and that laid the foundation of the great public library now under city 
 control. Mr. Smith was president of and a large stockholder in the 
 Cream City Street Railroad company, and through that corporation and 
 others has made his energies, abihty and means contribute to the growth 
 and development of Milwaukee's material interests. 
 
 That Mr. Smith almost from the day of his first appearance at the 
 bar of Milwaukee until he retired in 1888 held a commanding position 
 and was engaged in an extended and lucrative practice, goes almost 
 without the saying, in view of the outlines of public usefulness and 
 public confidence given above. His clients were among the leading 
 men and firms or corporations of Wisconsin, and he has been con- 
 nected with some of the most important and intricate cases recorded 
 in the legal history of the state. While it would be impossible to 
 mention all these within the brief compass of this sketch, reference can 
 be made to one or two. One of these grew out of the controversy be- 
 tween the stockholders of the old Milwaukee & Prairie du Chien Rail- 
 road company and the Milwaukee & St. Paul Railroad company, in 
 which the latter great corporation was enjoined from absorbing and 
 destroying the former company until the rights and interests of its 
 stockholders were protected in a satisfactory and equitable compromise. 
 
 The vast pecuniary interests involved in this case greatly enhanced 
 Mr. Smith's reputation at the bar, and led to retainers in some of the 
 most important litigations of the period. 
 
 The genius of no lawyer can supplant hard work, and it did not with 
 Mr. Smith. He studied his cases thoroughly and he studied both sides, 
 and was therefore prepared to meet any point of argument which might 
 reasonably be expected from an adversary. A mention of several im- 
 portant litigations with which he has been connected should be added * 
 to those already referred to. He was retained in behalf of the defend- 
 ants, in 1875, in a number of the prosecutions commenced by the United 
 States against persons charged with violations of the revenue laws. 
 
562 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 These cases were of much importance to the parties interested, and at 
 the time attracted great attention. The results were generally unfavor- 
 able to the defendants, but his clients were entirely satisfied with the 
 strenuous and able efforts of Mr. Smith, and his partial successes were 
 regarded as victories, considering the odds against which he had to con- 
 tend. His practice in revenue cases had, befqre this, been extensive, 
 and his knowledge of that department of professional labor was ex- 
 haustive. For several years he was a partner of Joshua Stark, and they 
 conducted among others a litigation involving the management of the 
 Sentinel company, in which case they won a signal triumph and much 
 credit also. 
 
 But no case in \\'isconsin'has for many years been the subject of 
 more wide attention from business men than the action brought by 
 Daniel Wells against Peter McGeoch, both of Milwaukee, to recover a 
 very large sum of money which the plaintiff claimed he paid by reason 
 of the defendant's misrepresentations to him. This was popularly 
 known as "the lard case," all members of the bar know its history. The 
 principal defense was that the transactions between the parties were il- 
 legal, because they were in violation of the Illinois statutes forbidding 
 what is understood as "corners," and the defendant claimed the subject 
 of the controversy to be money gained by the parties in one successful 
 corner and lost by them in the lard corner. The case was decided in the 
 lower court in favor of the defendant upon this ground, and argued 
 before the supreme court on appeal, the principal question being 
 whether the illegality mentioned constitutes a valid defense. The case 
 was begun in 1883, and was very voluminous, and required almost con- 
 tinuous labor from the counsel. The brief drawn by Mr. Smith ex- 
 tended over nearly a hundred printed pages, and although lengthy (as it 
 was exhaustive) was considered by attorneys as a model for method of 
 arrangement, logical statement and perspicuity. 
 
 The case of Wells vs. McGeoch was decided by the supreme court in 
 favor of the plaintiff and a judgment was rendered on his behalf through 
 which he collected over $250,000 from McGeoch. Soon after that re- 
 sult was accomplished, Mr. Smith being much in need of rest, went 
 with his two daughters and others to Europe, where he traveled in Eng- 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 563 
 
 land, Germany, France, Holland, Switzerland, Austria and Italy, re- 
 turning to Milwaukee in November of the same year, 1888. This trip 
 he greatly enjoyed, it having satisfied his curiosity tO' see cities and 
 works of the old world which he had long desired to know. 
 
 Soon after his return he entered into negotiations which resulted in 
 the sale in the spring of 1890 of the property of the Cream City Rail- 
 way company. The proceeds of this sale divided in equal proportions 
 among all the stockholders, gave to them a satisfactory profit. It re- 
 leased Mr. Smith from the management of the road, which had been 
 for about twelve years upon his shoulders, and which he was pleased to 
 lay aside when the investment had been converted into money. He 
 had given much time and attention to the duties at a very moderate 
 compensation, and regretted not only the loss of time from his profes- 
 sional pursuits, but the fact that to so many persons he was known not 
 as a member of the bar so much as president of the railroad. 
 
 The position Winfield Smith held as president of the Cream City 
 Railroad company came to him by a natural sequence of circumstances 
 and was unsought and undesired. He bought some stock in the road 
 by way of patronizing a public enterprise and was elected a director. 
 The company was not prospering as well as the stockholders could wish. 
 His efficiency as a director was quickly recognized; a change of man- 
 agement was desired, and the burden of executive responsibility was 
 shifted to the shoulders of Mr. Smith. When he assumed control in 
 1878 the stock was worth but sixty to seventy cents. It afterward ap- 
 preciated to upwards of one dollar and sixty cents, and the stock- 
 holders may be taken for good authority that much of the credit for this 
 gratifying appreciation belongs to their former president. 
 
 With the portion of the money obtained from the sale of the prop- 
 erty of the Cream City Railway company Mr. Smith acquired an inter- 
 est in the Menominee Falls Quarry company and in the Milwaukee & 
 Superior Railway company; about one-sixth of the whole of each. He 
 was elected president of each of those corporations and the result has 
 been continual labor and care of a degree of which he had no anticipa- 
 tion. The railroad, running from Granville, in Milwaukee county, to 
 Sussex, in Waukesha county, twelve miles, has been lately extended 
 
564 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 nine miles further westward to North Lake, and its construction has 
 created for Mr. Smith a large amount of labor, including many and 
 troublesome details. 
 
 In March, 1895, he went with his wife and younger daughters to the 
 Mediterranean, stopping at Gibraltar for a three weeks' tour in Spain 
 and to Tangiers, thence going to Italy. Later they spent a couple of 
 months in Switzerland, and as much more in France. Called by busi- 
 ness, he returned to Milwaukee, leaving his family in Paris. After a 
 winter of work, he sailed again in March for Naples and rejoined his 
 family in Rome. 
 
 In May he started north and in June, with his family, met his eldest 
 daughter who had arrived there from Boston with her husband, Dr. 
 N. W. Emerson, whose health was much broken down. After some 
 rest in the Isle of Wight they traveled together through England; the 
 doctor, quite recovered, returned in the fall, and. (Mr. Smith and his 
 family, after a month's trip to Holland, started for the United States; 
 after paying a number of visits to more intimate friends they arrived in 
 Chicago in January, 1897. 
 
 Mr. Smith hastened to resume his labors in Milwaukee, which have 
 ever since occupied his attention. 
 
 When in 1888 he started for Europe he formed a partnership with 
 Mr. Rosendale in the practice of law, which continued for some time, 
 but before Mr. Smith started the second time for Europe it had been 
 dissolved and he had abandoned the practice of law, sending most of his 
 books to the office of his younger son, who is engaged in the profession 
 in Seattle, Washington. 
 
 Politically Mr. Smith was of democratic antecedents, but when he 
 came to the full consideration of the great questions confronting the 
 people of America in his early manhood and saw the wrong and the 
 dangers of slavery, he made his choice according to the dictates of pa- 
 triotism and conscience. He gave a reason for his change of faith and 
 set it forth ably and fairly, in a letter to his old legal instructor, Mr. 
 Christiancy, bearing the date of September 20, 1856. 
 
 Being opposed to slavery, it was impossible for Mr. Smith to be 
 anything but an earnest and outspoken friend of the Union cause when 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 565 
 
 war was declared by the slave-holding power, and to labor in all possible 
 ways for the success of the north. He was vice president of the first 
 committee organized in Milwaukee for the support of the war. He had 
 fully arranged to enlist and go to the field of actual service when the 
 demand was made upon him by Governor Salomon that he should go 
 to Madison and give the same loyal and needed service in another line 
 of duty. But he did not confine his activity to that labor. He was 
 constantly laboring at all seasons and in many ways for the Union's 
 good, urging enhstments, and looking after the families of those who 
 were left behind. His war speeches were among the best and most 
 effective of any of those delivered in the west. 
 
 In addition to his speeches, Mr. Smith made continual use of the 
 pen, and the republican press of the state during war days could, fur- 
 nish many evidences of that fact, in editorials and communications. He 
 was also author of a vigorous and keenly humorous ballad, which 
 showed McClellan to the world in a humorous light — a versification 
 that found great favor at the time, but whose authorship was known to 
 but few. 
 
 The qualities of manly resolution and intellectual strength which 
 belonged to the father and of culture and refinement that were the pos- 
 sessions of the mother, have united to produce in the son a character 
 and bearing that have won him admiration and friends and enabled him 
 to secure and retain the public confidence and respect that he has for so 
 many years held. The superior education which through opportunity, 
 application and a deep thirst for knowledge Winfield Smith has gained 
 has supplemented his natural gifts, and much of the force and poHsh of 
 his writings and forensic efforts may be attributed to his familiarity with 
 classic models and the hterature of ancient as well as modern times. 
 Among his mental characteristics may be mentioned keen discernment 
 of the meaning and measure of things about him, determination to ac- 
 complish whatever he undertakes, self-rehance, an independence of 
 thought and action, and an imagination fervid, and yet tempered with 
 good judgment. With an analytical mind he reached his conclusions 
 by the way of logic. Taking nothing for granted, he demands a reason 
 for every proposition that is submitted to his understanding. He does 
 36 
 
566 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 not form his opinions suddenly or from impulse. His beliefs are the 
 fruits of experience or ripened and intelligent study, based upon all the 
 fa'cts than can be brought to his knowledge. A fine natural orator, he 
 has been called to the public platform upon many important occasions, 
 and has ever acquitted himself with honor and to the gratification of 
 those whom he addressed. During the last ten years Mr. Smith has 
 given much thought to religious subjects, looking at them in a much 
 broader way than in the earlier part of his life and gradually releasing 
 himself from the ties of dogma and from adhesion to sectarian doctrine. 
 He has moved with those who have freed themselves from the shackles 
 of beliefs which were once considered an essential part of rehgion, and 
 he yields reverence to those fundamental principles which are calculated 
 to secure the welfare of men as well as the favor of Deity. 
 
 His married children are widely scattered, residing in Seattle, Chi- 
 cago, Boston and in England, and he looks hopefully to a day when, 
 resting from his present labors, he may again devote time to their so- 
 ciety and to the pleasure of travel. 
 
 He has visited most parts of the United States and a large part of 
 Europe, but always finds enjoyment in going further or renewing his 
 acquaintance with famous places and famous works of art and science. 
 
 CORNELIUS I. HARIXG. 
 
 Cornelius I. Haring, secretary of the state bar association, was born 
 on the 4th of April, i860, at New City, Rockland county, New York. 
 His father. Dr. I. C. Haring, one of the best known physicians in Rock- 
 land county, and his mother, Sarah (Tallman) Haring, are both mem- 
 bers of old Holland families* who emigrated to New Amsterdam in the 
 middle of the seventeenth century. 
 
 *The official records of Rockland county, New York, show that the soldier, Jan 
 Pieter Haring, of the Peninsula of Horn in Holland, was the great-grandson of 
 patriot John Haring who distinguished himself in many ways in Holland's battles for 
 freedom against Spain, and whose acts of heroism are so vividly described in Motley's 
 Rise of the Dutch Republic. Jan Pieter Haring, the ancestor of the American branch 
 of the Haring family, emigrated from Holland to this country in the year 1660, and 
 settled on Manhattan Island and owned a farm of one hundred acres in what is now 
 the heart of New York city. This Haring farm extended from the Bowery Lane 
 westward beyond Bedford street and included both sides of Broadway from about 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 56? 
 
 Mr. Haring received his early education in tlie public schools near 
 his home. After the necessary preparation he entered Rutgers college, 
 at New Brunswick, New Jersey, and graduated therefrom in 1881. He 
 was a member of the college societies of Delta Upsilon and Phi Beta 
 Kappa; was president of his class and of the glee club, business man- 
 ager of the college paper, and captain of the football team. After 
 graduating from Rutgers he entered the law school ot Columbia col- 
 lege, was graduated in 1883 and admitted to the bar of New York im- 
 mediately after. He came to Milwaukee in 1884, and was first asso- 
 ciated with Joshua Stark in the law. In 1887 he went into partnership 
 with Adolph Herdegen. Upon the death of that gentleman, the fol- 
 lowing year, he formed a partnership with Edward W. Frost, under the 
 firm name of Haring & Frost. Later, Charles E. Shepard came into the 
 
 Waverly place down to a line near Sleeker street. In 1673-4 Jan Pieter Haring was 
 one of the Schoepens to govern the "outside people" on Manhattan Island beyond 
 the then little city of New York, called New Orange. Subsequently many members 
 of his family held many positions of honor and trust in the legislature and on the 
 bench. Orange county, for the first twenty-five years from 1701 to 1726, sent but one 
 representative to the Colonial general assembly; during that time, with the exception 
 of seven years, that representative was chosen from the Haring family. 
 
 On July 4th, 1774, at a meeting of the freeholders of Orangetown the Orangetown 
 Resolutions, consisting of seven articles, were drawn up and adopted, which contain 
 the germ of the great principles embodied in the Declaration of Independence. John 
 Haring and Peter Haring, with three others, were appointed a committee for this 
 town to correspond with the city of New York to conclude and agree upon such- 
 measures as should be found necessary. John Haring was the chairman of the 
 committee and himself drew the Orangetown Resolutions. 
 
 The fifth article of the resolutions of this meeting formed a part of what was 
 known as the "non-importation agreement," which was adopted by the Continental 
 Congress at Philadelphia, October 20th, 1774; this non-importation article was sub- 
 sequently ratified by the several colonies and was one of the overt acts that precipi- 
 tated the revolution. 
 
 In April, 1775, John Haring was chosen delegate from Orange county, "south of 
 the mountains," to the Provincial Congress and elected president of the same. In 
 1783-85 and '87 John Haring was chosen delegate from "south of the mountains'" to the_ 
 constitutional convention at "Po' Keepsie.'' 
 
 The Orange county judgeship seems to have been held almost exclusively by 
 members of the Haring family from 1717 to 1788. It is not surprising, therefore, that 
 the subject of this sketch, having descended from such an honorable and prominent 
 family, should have certain attributes of character and mind which would make his 
 success at the law a foregone conclusion — and he has not disappointed the expectation 
 of his friends. — Men of Progress, of Wisconsin. 
 
568 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 firm, and the name became Shepard, Haring & Frost. Upon the re- 
 moval of Mr. Shepard to Seattle, the firm became again Haring & Frost, 
 and so remains. He has succeeded in building up a large general 
 practice, and is considered one of the leaders among the younger mem- 
 bers of the profession. He is regarded as well qualified in the manage- 
 ment of corporation and probate matters and in carrying on commercial 
 litigation and in settling and adjusting insolvent cases. 
 
 Mr. Haring earned his first professional money by defending the 
 anarchist, Paul Grottkau, in civil suits. 
 
 He is a republican on principle, but never sought or held a political 
 office. He is secretary of the Milwaukee bar association and of the 
 state bar association, and he is also secretary of the Lawyers' club; 
 member of the committee on amendments to the law of the state bar 
 association, and is a member of the Deutscher club. He belongs to 
 Plymouth Congregational church. 
 
 CHARLES DIETZ MANX. 
 
 Charles D. Mann, junior member of the firm of Rogers & Mann, 
 has earned for himself a substantial reputation at the bar. The son of 
 John E. Mann, judge for so many years of Milwaukee county, he has 
 given special attention to equity cases and probate matters, and his 
 success in these fields has been remarkable. 
 
 Mr. Mann, as his name indicates, is of German descent, his mother, 
 Catherine Dietz, being of an old and prominent New York family, 
 some of whose members were politically intimate with Martin Van 
 Buren. Both his paternal and maternal ancestors were settlers of 
 Schoharie, N. Y., where Judge Mann was born, March 4, 182 1. He 
 came to the west and to Wisconsin in May, 1854, locating in West 
 Bend, and here, on October 15, of the same year, was born Charles D. 
 Mann. 
 
 The boy remained in this locality until he was thirteen years of age, 
 the greater portion of which period his father had been serving his 
 constituents as judge of the third W'isconsin circuit. In 1867 the 
 family removed to Milwaukee, where both professional opportunities 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 569 
 
 and educational advantages were greater and broader. Here Charles 
 added to the education which he had acquired in the public schools of 
 West Bend a thorough course in the Milwaukee high school, from 
 which he was graduated in 1872. He also enjoyed private instruction, 
 as well as a business training in the hardware store of R. Haney, a 
 pioneer in that branch. After being thus occupied for about a year, 
 he removed to St. Paul, Minn., and engaged in various lines of busi- 
 ness. 
 
 When twenty-one years of age, however, Mr. Mann had fully de- 
 termined what his course in life was to be, and, returning to Milwaukee, 
 at once began the study of his profession in the ofifice of Carpenter & 
 Smiths. This practical and invaluable experience and training was fol- 
 lowed by a course in the Albany law school, from which he graduated 
 in 1878, being admitted to the bar both at Saratoga, New York, and at 
 Milwaukee, Wisconsin, in 1879. He then re-entered the office of Car- 
 penter &; Smiths, and was in the employ of D. G. Rogers for one year 
 before he became his partner, in 1882. For sixteen years, therefore, 
 this fortunate professional connection has continued, and conscientious, 
 hard work has made the firm strong and prosperous. 
 
 Mr. Mann has never sought office nor held it. Originally he was 
 a democrat, but is now what may be termed an independent in politics. 
 In religious belief he is an Episcopalian, and, although not identified 
 with charitable or benevolent societies, is a member of such social or- 
 ganizations as the Deutscher and Iroquois clubs. In a word, he is a 
 refined, successful lawyer, social and domestic in his tastes and habits, 
 spending most of his time outside of his business hours with his family. 
 On August 22d, 1883, he was married to Sarah S. Mersereau, of Owego, 
 New York, and they have two children — Gertrude Mersereau and Cath- 
 erine Mann, the latter being born on her grandfather's seventy-fifth 
 birthday. 
 
 M. N. LANDO. 
 
 A native of Hungary, where his mother still lives, Mr. Lando was 
 born on the 17th of April, 1841, and is a striking type of the energetic, 
 able man of foreign blood who has become so thoroughly assimilated 
 
S70 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 with the American spirit that he is as much a part of it as though he had 
 never been beyond its influence. His children have also become a por- 
 tion of the country's higher life, having entered the professional field 
 with intelligence and success. 
 
 Mr. Lando's parents were David H. and Regina (Klein) Lando, his 
 father being a well-to-do farmer. The boy was not only taught habits 
 of industry but received a thorough education. After digesting all that 
 the lower schools had to offer, he enjoyed a partial collegiate course in 
 his native land and then turned his thoughts toward the country of the 
 most numerous and the broadest opportunities. Coming to the United 
 States in 1865, then a sturdy, ambitious young man of twenty-four years 
 of age, he spent about a year in New York and Ohio, but being con- 
 vinced that the states further west oiifered a better field for one of foreign 
 birth, without influence, who had determined upon a professional career, 
 he passed on to Milwaukee where he finally located in 1866. 
 
 Commencing the systematic study of the law in the offices of the 
 well known attorneys. Smith & Salomon and J. V. V. Platto (the last 
 named lately deceased), Mr. Lando continued his training at the law 
 department of the \Msconsin university. IMadison. He graduated there- 
 from on April i6th, 1869, was admitted to the bar in ^Milwaukee and 
 immediately began practice, ^^'ith the exception of a few months in 
 1869-70 he has conducted his professional business alone, having been 
 retained in such important cases as ^^"atkins vs. Blatchinski, which in- 
 volved the question whether the proceeds of an exempt homestead are 
 garnishable, he maintaining and the supreme court holding, the nega- 
 tive; and O'Gorman vs. Fink, United States marshal. He has also tried 
 many cases involving questions of commercial law. 
 
 Although a republican in politics and taking a deep interest in public 
 affairs, whether of local or national import, 'Mr. Lando has never been 
 a politician. He has served his ward as school commissioner, how- 
 ever, and brought to the discharge of his duties his usual intelligence 
 and acumen. His advice, both as a man and a law3'er, is held in high 
 regard by various business organizations, in some of which he is per- 
 sonally interested. He is president of the Belvidere Realty company 
 and a stockholder in several building and loan companies. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 57^ 
 
 Air. Lando is also widely known for his prominence in the councils 
 of the secret and benevolent societies, having, especially, filled all the 
 chairs in the Masonic and Odd Fellows orders. His social life, which 
 is natural and broad, is centered in his home and family. His wife, 
 whom he married in Milwaukee, was Miss Ida Caspary, daughter of an 
 old, substantial citizen, and his family consists of five children — Belle, 
 David H., lima, Victor and Mapa. Belle is a teacher in the Milwaukee 
 high school and David H. is studying medicine. 
 
 JEROME R. BRIGHAM. 
 
 By the death of Jerome Ripley Brigham, which occurred in the early 
 spring of 1897, the bar of Wisconsin lost one of its worthy members, 
 and the city of Milwaukee one of its highly honored residents. Mr. 
 Brigham was born in Fitchburg, Massachusetts, July 21, 1825. He 
 came with his parents to Wisconsin in 1839. After attending western 
 schools he entered Amherst college, and was graduated in 1845. While 
 teaching school for a year in Madison hfe studied law. He was elected 
 town clerk of Madison in 1847, ^^^ upon the organization of the su- 
 preme court of the state in 1848 he was appointed clerk of the court. 
 Having been admitted to the bar, he resigned in 185 1 tO' begin the 
 practice of his profession. 
 
 He formed a partnership in Milwaukee with former Chief Justice 
 A. W. Stow and E. G. Ryan. In the following year this partnership 
 was dissolved and Mr. Brigham became associated with C. K. Wells, 
 thus establishing a professional partnership which continued until dis- 
 solved by the death of Mr. Wells in 1892. In 1879 H. A. J. Upham 
 joined the firm, which continued as Wells, Brigham & Upham until Mr 
 Brigham's death. 
 
 Interested in the advancement of education, Mr. Brigham served 
 several years as a member of the board of regents of the university of 
 AVisconsin, and also as a member of the school board of Milwaukee, 
 and as a trustee of Milwaukee college. He was city attorney in 1880 
 and 1 88 1, a member of the board of fire and police commissioners 
 from the organization of the board in 1885 until he resigned in li 
 
572 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 and a member of the legislature in 1887. He was actively identified 
 with the upbuilding and maintenance of Plymouth Congregational 
 church. He was a frequent contributor to the press, and at the time 
 of his death had a financial and official connection with the Milwaukee 
 Sentinel. 
 
 Mr. Brigham was married in 1857, at Madison, Wisconsin, to Miss 
 Mary Ilsley; she died in 1894. 
 
 DANIEL GRAHAM ROGERS. 
 
 Daniel Graham Rogers was born in West Point, Orange county, 
 New York, November 20, 1824. His parents, William E. and Phoebe 
 (Gallow) Rogers, were both descendants of early settlers of New York. 
 Paternally he is descended from John Rogers who was burned at the 
 stake at Smithfield. Israel Rogers, great-grandfather of our subject, 
 was a minute man during the revolutionary war; and his grandfather, 
 Daniel Graham Rogers, after whom our subject was named, also par- 
 ticipated in the war for liberty, serving under Colonel McClaughtery, 
 and participating in the battle of Fort Montgomery. He was a man of 
 prominence in New York state, and at the time of his death was one 
 of the wealthiest men in Orange county. Mr. Rogers is also a direct de- 
 scendant in the fifth generation, through his grandmother, from Daniel 
 Wilkins, who participated in the Battle of the Boyne, and, escaping, 
 thereafter fled to America and settled in Orange county. New York, 
 about 1 69 1 -2. His descendants were all patriotically arrayed on the 
 right side during the revolutionary war, and the great-grandfather of 
 Mr. Rogers, together with five of the brothers of his future fatherland, 
 all participated in and escaped from Fort Montgomery, when taken by 
 the British. Three of them were so badly frozen that they were unable 
 to attend to their duties for many months thereafter. 
 
 Before he was baptized Daniel became an inmate of the home of 
 his grandmother, and under her kindly care he grew to boyhood and 
 manhood. She was a remarkably bright, strong-minded woman, who 
 directed his footsteps upon the right path. She dearly loved the lad 
 and determined that he should not lack the facilities for obtaining an 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 573 
 
 education. He early gave indications of possessing those qualities 
 which are essential to success in any calling that recjuires an education, 
 and became a diligent student. The academy at Montgomery, Orange 
 county, served as a preparatory step for admission to college. He read 
 law in the ofifice of Hon. Hugh B. Bull, in Montgomery, and attended 
 the National law school at Balston Spa. He was an industrious scholar 
 and as a student displayed those qualities which in later years brought 
 him success. Before completing his course at Balston Spa he attended 
 court at a general term, held at Poughkeepsie, and passed an exami- 
 nation which admitted him to the bar July 7, 185 1. He was graduated 
 with high honor from the National law school at Balston Spa, August 
 5, 1851, and received the degree of bachelor of laws, the diploma being 
 signed by Chancellor Walworth, the last of the chancellors of New 
 York, and grandfather of United States Circuit Judge James G. Jenkins 
 of Milwaukee. 
 
 Believing that the new western states afforded a broader field for the 
 operations of a young man, Mr. Rogers came west in 1853 to select a 
 place in which to begin his labors, and after due consideration, decided 
 that Milwaukee would be his future home. However, he wisely con- 
 cluded that in his new field he could better overcome such obstacles 
 as beset his path were he aided and sustained by the love and com- 
 panionship of her who had become master of his heart. Therefore he 
 returned to New York and in May, 1855, was united in marriage to Miss 
 Ellen Newkirk. Shortly thereafter, accompanied by his young bride, 
 he again journeyed westward and established himself in Milwaukee, 
 where they have since resided — a period of more than forty years — 
 honored and respected by all with whom they have become associated. 
 In 185.5 the system of jurisprudence then followed in Wisconsin 
 was changed and the system in force in New York state was adopted. 
 September 15, 1856, Mr. Rogers was admitted to practice at the Mil- 
 waukee bar, and from that time until the present has been an active 
 member of the profession. His practice has been general in its nature, 
 but equity and probate causes have taken much of his time and atten- 
 tion. His clientage has always been large and profitable, and some of 
 
574 FIISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the very largest estates probated in Milwaukee have been settled by 
 him. 
 
 He has been associated in practice with C. N. Carpenter, now of 
 Brodhead, and with Judge D. H. Johnson and Thomas Hover, the latter 
 now deceased, but during the past fifteen years his partner has been 
 Charles D. Mann, and the business has been conducted under the name 
 of Rogers & Mann. They have conducted much litigation of im- 
 portance growing out of real estate transactions and probate matters. 
 
 Politically, Mr. Rogers was originally a "Henry Clay whig," but 
 since the organization of the republican party has been a zealous and 
 ardent advocate of the principles of that party. He is in no sense a 
 politician, having no desire for political position of any kind, but during 
 his younger years he sei^ved as a member of the board of counselors and 
 later as a member of the board of aldermen, representing the seventh 
 ward in the city of Milwaukee in those bodies. His name was frequent- 
 ly mentioned in connection with the nomination of his party for the 
 mayoralty, but he invariably declined to become a candidate. During 
 the war of the rebellion he displayed principles of the highest patriotism. 
 From his ancestors, who shouldered muskets to enable us to found a re- 
 public, he inherited that sacred fire which caused the youth of the land 
 to respond to our martyr President's call to save that republic from dis- 
 solution. He tendered his services to his country, but owing to a phys- 
 ical defect (he having broken his leg some years previously) was re- 
 jected. Being determined to aid in the struggle, even though he him- 
 self was disqualified, he paid an able-bodied man to enlist in the army as 
 a volunteer recruit for him and proceed to the front. This generous, 
 patriotic act was recognized by a testimonial from the war department. 
 
 Mr. Rogers' family, in addition to his wife, previously^ mentioned, 
 consists of three sons and two daughters, D. G., Jr.; Mary, Henry, 
 Charles and Blanche. He is domestic in his tastes and habits, is a mem- 
 ber of no clubs or societies, and finds his greatest pleasure and truest 
 happiness within the circle of his fireside, surrounded by his family. 
 He has invested largely in Milwaukee real estate and has laid out and 
 platted five large additions to Milwaukee. His business sagacity and 
 careful habits have placed him far above want, and in the declining 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 575 
 
 years of his life he can with pleasure look backward over the past half 
 century with the knowledge that he has acted well his part in life, and 
 left the imprint of his character and individuality upon the city of his 
 adoption. 
 
 HOWARD MORRIS. 
 
 Mr. Morris was born in Madison, Wisconsin, on the 6th of October, 
 1856; was graduated from the classical department of the university of 
 Wisconsin in 1877 and from the university law school in 1879. He 
 studied law in the offices of Sloan, Stevens & Morris and Burr W. 
 Jones and commenced the practice of his profession in Milwaukee on 
 the 1st of July, 1879. ^^ May, 1880, Mr. Morris was employed in the 
 law department of the Wisconsin Central system of railways, and in 1890 
 became general counsel of that systeiri and of the Colby group of mines. 
 In 1893 he was appointed one of the receivers of the railroad and in 1894 
 he also became receiver of the Penokee and Gogebic consolidated (Col- 
 by) mines. 
 
 On the 4th of October, 1886, Mr. Morris was married to Miss Juha 
 ■A. Robertson, of St. Paul, Minnesota. 
 
 WILLIAM D. VAN DYKE. 
 W. D. Van Dyke, second son of John H. and Mary Douglass Van 
 Dyke, was born in Milwaukee August 15, 1856. He was educated at 
 Markham's academy and Princeton college. After graduation from the 
 latter institution he began the study of law under the direction of his 
 father. He began practice in partnership with his brother, George D. 
 Van Dyke, under the name of Van Dyke & Van Dyke. In 1895 William 
 E. Carter joined Van Dyke & Van Dyke, and the business has since then 
 continued as Van Dyke & Van Dyke & Carter. Mr. Van Dyke has de- 
 voted his energies to general commercial, corporation and admiralty 
 practice, but has of late years spent much time with great success in 
 litigation regarding questions involved in the law of insurance. 
 
 CHARLES QUARLES. 
 Charles Quarles, of the well-known Milwaukee firm Quarles, Spence 
 & Quarles, was born in Southport (now Kenosha), Wisconsin, on the 
 
576 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 « 
 
 13th of February, 1846. He is of English descent, the members of the 
 American branch on the paternal side being among" the earty settkrs of 
 New Hampshire. Massachusetts and central New York were the 
 homes of his maternal ancestors, and both branches of the family em- 
 brace not a few heroes of the revolution, as well as patriots of the early 
 colonial times. 
 
 Joseph V. Quarles, the father of our subject, came to Wisconsin in 
 1838 and, settling at Southport, in partnership with Henry Mitchell, 
 built and operated a wagon factory, subsequently known as the Bain 
 wagon works. The hard times of 1857 bore so heavily upon him, how- 
 ever, that he was obliged to sacrifice his interest in the enterprise. His 
 death occurred in 1874. 
 
 Caroline Bullen, as she was known before marriage, the mother of 
 Charles Quarles, was the daughter of General John Bullen, who was also 
 one of the early and prominent citizens of Kenosha. 
 
 Mr. Quarles spent his boyhood in his native place, attending the 
 public schools and the high school, graduating from the latter institu- 
 tion in 1863. He afterward entered the Michigan state university, but 
 left during his senior year, in December, 1867. In 1898 the university 
 gave him the degree of A. B. as of 1868. In the spring of 1869 he went 
 to Chicago and secured a position with the Home Insurance company of 
 New York, remaining about three years, or until the spring of 1872. 
 The succeeding two years were spent in southwest Kansas and the In- 
 dian Territory. He returned to Kenosha in 1874 and began the study 
 of law with the firm of Head & Quarles. 
 
 Mr. Quarles was admitted to the bar in April, 1875, and began prac- 
 tice at once, removing to Milwaukee in the spring of 1888. At first he 
 became associated with the firm of Quarles, Spence & Dyer, and sub- 
 sequently joined that of Quarles, Spence & Quarles. His prominence 
 has been chiefly gained in his masterly conduct of cases of chancery 
 and corporation law. Among the most important was that of 
 Hinckley vs. Pfister, growing out of street railway litigation; and the 
 motion to dissolve the injunction in the case of Arthur vs. Oakes, an 
 outcome of the Northern Pacific strike, which was argued before Judge 
 Jenkins. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 577 
 
 The secret of Mr. Quarks' unusual success in these fields of practice 
 consists of his untiring industry and the logical qualities of his mind. 
 He never attempts to be ornate, but keeps the point at issue ever in 
 mind and before the minds of judge and jury. A republican in politics, 
 he has never sought office, although well qualified to adorn any position. 
 In 1897, however, he was induced to become a member of the school 
 board, of which he was chosen president, an unusual compliment to an 
 untried representative. He has also served one term as a member of the 
 state board of examiners for the admission of persons to the bar. 
 
 Mr. Quarles is identified with the leading social organizations of 
 Milwaukee, such as the Milwaukee, the Deutscher, the Country and the 
 Yacht clubs. He is also prominent in the work of the Wisconsin state 
 humane society. 
 
 In November, 1881, he was married to Emma W. Thiers, of Ke- 
 nosha. They have four children — Louis, Charles B., Henry C. and 
 Ethel. 
 
 WILSON GRAHAM. 
 
 Wallace Wilson Graham, the father of the present Milwaukee bar, 
 began practice in the territorial courts of Wisconsin before 1840. He 
 was born inCargycroy, in the county of Down or Armagh, on the i6th 
 of September, 181 5, and came with his parents to the United States by 
 way of Quebec in 1818, settling at Ashtabula, Ohio, where he resided 
 until admitted to the bar, on the 25th of August, 1837. After coming 
 to Milwaukee he practiced alone until 1840, when he formed a partner- 
 ship with Levi Blossom. From 1856 to 1864 he was associated \yith 
 D. A. J. Upham, under the firm name of Upham & Graham. Later the 
 partnership of Graham & Koefiler was organized, but since 1885 Mr. 
 Graham has practiced alone. 
 
 GERRY W. HAZELTON. 
 
 Gerry W. Hazelton was born at Chester, New Hampshire, in 1829; 
 was a student in Pinkerton academy, at Derry, and received instruction 
 from a private tutor. In 1848 he went to Amsterdam, New York, and 
 began the study of the law, at the same time pursuing his classical 
 
578 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 studies; in 1852 was admitted to the bar, and practiced in New York 
 until 1856, when he came to Wisconsin and located at Columbus, Co- 
 lumbia county. 
 
 In i860 Mr. Hazelton \\as elected state senator; in 1864 was chosen 
 district attorney; in March, 1866, was appointed collector of internal 
 revenue for the second collection district, which office he held but a 
 short time because he was not in sympathy with the policy of President 
 Johnson; in 1869 became United States attorney for Wisconsin and 
 served until January i, 1871, when he resigned because of having been 
 chosen a member of Congress in November preceding, to which office 
 he was re-elected. During his four years' service in Congress Mr. Haz- 
 elton was active in guarding the interests of his constituents and in ad- 
 vocating such measures as he was specially interested in. He was an 
 influential member of the national house. Soon after the close of his 
 second term he was appointed United States attorney for the eastern 
 district of A^'isconsin, and in August, 1875, removed to Milwaukee and 
 entered upon the duties of that office; he has since resided there and con- 
 tinued in active practice. 
 
 JOSEPH V. QUARLES. 
 
 Joseph V. Ouarles was born in the village of Southport, now Ke- 
 nosha, Wisconsin, December 16, 1843. His father, Joseph V. Quarles, 
 Sr., was born in New Hampshire, and his mother, Caroline B., was a 
 native of New York. They were among the early settlers of Wiscon- 
 sin and were married at Southport. Their ancestors were prominent 
 during the revolutionary war. Our subject attended the schools of his 
 native town and was graduated from the high school of Kenosha at 
 the age of seventeen. His father was one of the founders of the fac- 
 tory now carried on 1)y the Bain Wagon company of Kenosha. The 
 financial panic of 1857 forced this previously prosperous business to 
 suspend operations and the father \'\'as left with scant means to assist 
 his sons in their college aspirations. Young Joseph displayed that un- 
 faltering courage and determination which has been so great a factor in 
 his remarkable career. Teaching school in Kenosha, doing odd lit- 
 erary work, and finally, borrowing money from well-to-do relatives, he 
 
-crZyLM^ C- 
 
 CC^^-Cf-^ 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 579 
 
 entered the university of Michigan in 1862. His record at college re- 
 veals the mental abilities which gave so much promise during boyhood. 
 He was elected president of the freshman class and delivered the oration 
 on class day. 
 
 The war breaking out at this time, he left college and enlisted in the 
 thirty-ninth regiment, Wisconsin volunteer infantry, and was appointed 
 first lieutenant of company C. Mustered out at the expiration of his 
 term of enlistment, he returned to college and was graduated with the 
 degree of A. B., and was chosen to deliver one of the graduating ora- 
 tions. Having but limited funds, he attended the law department of 
 Michigan university for one year only. Returning to his home he en- 
 tered the law office of Mr. O. S. Head, one of the oldest practitioners of 
 the state. Mr. Quades was admitted to the bar in April, 1868, before 
 Judge AA'illiam P. Lyon, of the circuit court of Kenosha, and at once 
 formed a partnership with his distinguished preceptor under the firm 
 name of Head & Quarles. 
 
 Mr. Head, advanced in years and possessed of a fortune, declined 
 the more active duties of the firm, and Mr. Quarles was called into the 
 higher courts, and had to oppose the older and leading attorneys of the 
 state. During his association with Mr. Head, which lasted until that 
 gentleman's death in 1875, Mr. Quarles was district attorney of Ke- 
 nosha county for six years. As a young man he enjoyed the fullest 
 respect and confidence of the people and was elected mayor of the city 
 in 1876, but declined a renomination. He was president of the board of 
 education in 1877 and 1878; member of the assembly in 1879, and rep- 
 resented Kenosha and Walworth counties in the state senate in 1880 
 and 1 88 1. While a member of the senate he rose to a position of dis- 
 tinction and influence in that body, and served on the judiciary and 
 other important committees. 
 
 In the senatorial contest of 1881 the excitement attending the elec- 
 tion of a successor to Angus Cameron in the United States senate ran 
 high, and without solicitation the friends of Mr. Quarles tendered him 
 a complimentary \'ote, which assumed such proportions that it was with 
 much effort that he prevented what would have been a most material 
 compliment. Hard work and unceasing devotion to his profession 
 
58o HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 compelled Mr. Quarks to retire from active public life, and his physician 
 enjoined rest and a change of scene. 
 
 Leaving Kenosha he went to Racine, Wisconsin, and formed a part- 
 nership with Mr. John B. Winslow, the firm being dissolved on the ele- 
 vation of Mr. Winslow to the bench of the first judicial circuit. A year 
 later Mr. T. W. Spence, of Fond du Lac, removed to Racine, and be- 
 came associated with Mr. Quarles under the firm name of Quarles & 
 Spence, which on the admission of a son of Judge Dyer was changed to 
 Quarles, Spence & Dyer. In 1888 the firm moved to Milwaukee and 
 began its very remarkable career under the name of Quarles, Spence & 
 Quarles, a younger and able brother of our subject becoming the junior 
 member of the firm. 
 
 As an advocate Mr. Quarles is especially prominent, having been 
 connected with some of the most noted cases in Wisconsin. In the 
 memorable "Charley Ford horse case," with Senator Doolittle and 
 other eminent lawyers opposing him, he obtained judgment for his client 
 for several thousand dollars, which was afterward afiirmed by the su- 
 preme court. Retained by the state to assist in the prosecution of the 
 Hurley bank robbery case, which attracted such widespread attention, 
 owing to the large amount of money involved and the great complexity 
 of the attending circumstances, Mr. Quarles established his reputation 
 as a forensic lawyer of great ability, and convicted Leonard Perrin of 
 receiving the stolen money from his adopted son and confederate. This 
 conviction created unusual comment, owing to the prominence of Bank- 
 er Perrin, the purely circumstantial character of the evidence and the 
 intimidating methods of the defendant's attorneys, who had been in- 
 vincible in their stronghold. The Horan poisoning case furnished an- 
 other illustration of his skill and industry. x'Mthough popular opinion 
 had set strongly against her, he cleared this young woman of a most 
 serious charge. Mr. Quarles argued the Russell murder case before 
 the supreme court and succeeded in obtaining an acquittal upon tech- 
 nical grounds. He successfully conducted the La Crosse park case, and 
 obtained a verdict in favor of his chent for possession of one of the prin- 
 cipal parks in the city of La Crosse. He was retained by the state in 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 581 
 
 the prosecution of the Mead murder case, and participated in the cele- 
 brated "treasury cases." 
 
 Mr. Quarles possesses in an eminent degree all those qualities which 
 command an audience, enlist a court and move a jury. His presenta- 
 tion of a case shows careful and original research and bears the impress 
 of a logical and well-trained mind. As a cross-examiner, he displays 
 wonderful adroitness; quick to detect the weak spots in adverse testi- 
 mon}', he marks out a plan of attack which seldom fails to afiford him a 
 decided advantage in the preliminary skirmish. As an orator of un- 
 usual ability and education, his address to the jury and court is eloquent, 
 earnest and forcible, and from his great resources he draws at will, using 
 his gifts with rare skill. Courteous and considerate to all, his language 
 and manners have the stamp of the true gentleman, and obtain for him 
 the respect and friendship of all classes. He has but little time to de- 
 vote to politics, but as a republican has made campaign speeches in be- 
 half of the party for the last twenty years. He is a member of the 
 Grand Army of the Republic and of the military order of the Loyal 
 Legion. 
 
 He married Miss Carrie A. Saunders, an accomplished lady of Chi- 
 cago, in 1868, and has three promising sons. Essentially literary in 
 tastes and habits, Mr. Quarles still pursues his readings and studies as a 
 source of recreation, and is often called upon to deliver addresses. Still 
 in the prime of life, and in the light of a past and honorable career, we 
 may predict possibihties in the hfe of this esteemed citizen that will be 
 limited only by his own ambitions. 
 
 GEORGE DOUGLASS VAN DYKE, 
 
 the eldest son of John H. Van Dyke, was born in Milwaukee on 
 the 31st of October, 1853. Educated at Markham's. now the Milwau- 
 kee academy, he took a regular course at Princeton college, from which 
 he graduated in 1873. He commenced his legal studies in the office of 
 Emmons & Van Dyke and, under his father's careful training, was ad- 
 mitted to the bar in November, 1875. Under these auspices he com- 
 menced practice and subsequently formed a partnership with his 
 brother, W. D. Van Dyke. The firm was known as Van Dyke & Van 
 37 
 
582 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Dyke, and so continued until about 1895, when William E. Carter, 
 formerly of Platteville, was associated with the firm, the firm name 
 being changed to Van Dyke & Van Dyke & Carter, as it is now. Their 
 business is of a general nature, although it often runs into the specialties 
 of corporation and admiralty law. 
 
 Mr. Van Dyke has been identified with th§ iron mining interests. 
 He is now interested in the Pewabic company, being its president. He 
 was one of the organizers of the Menominee Mining company and sec- 
 retary and treasurer of that corporation, as well as of the Chapin Mining 
 company. He is a director of the National Exchange bank of Mil- 
 waukee and has been associated with other financial institutions. 
 
 He was married in 1878 to Louise Lawrence. They have three 
 children — Lawrence, Douglass and Louise. 
 
 CHARLES L. AARONS. 
 
 Charles Lehman Aarons is a native of New York city, the date of 
 his birth being August 18, 1872. His parents. Lehman Aarons and 
 Gusta (Marks) Aarons, were born in western Germany; they arrived in 
 New York on the Fourth of July, 1869, carrying with them a few per- 
 sonal efifects and $50 in money — the extent, at that time, of their worldly 
 possessions. The year succeeding the birth of their son Charles, they 
 removed to Milwaukee, where they have since lived, and where the 
 father gradually established himself as a prosperous wholesale clothing 
 merchant. 
 
 Lehman Aarons, the father of our subject, was a strong man in 
 every sense of the word. He never knew the meaning of "boyhood," 
 his parents dying when he was only thirteen years of age, leaving upon 
 his 3'outhful shoulders the sole support of a family of six. The maternal 
 grandparents are still hale and hearty, at the age of eighty. They have 
 never left the fatherland. 
 
 Charles L. Aarons, the subject of our sketch, is to all intents and 
 purposes a Milwaukeean. .From infancy he was brought up in the 
 Cream City and laid the foundation of his education in her public and 
 high schools. Three years of his school life were spent in Chicago, 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 583 
 
 where he attended and was graduated from the Brown (grammar) 
 school of that city, being honored with the so-called Foster medal 
 for excellence in scholarship. He also began his high school course in 
 Chicago, but upon removing to Milwaukee again he graduated from 
 the Milwaukee high school in 1890. For three years he attended the 
 collegiate department of the Wisconsin state university, graduating 
 from the law school of that institution in June, 1895. 
 
 Immediately after graduation he entered the office of Felker, Gold- 
 berg & Felker, his principal occupation being at first the preparation of 
 briefs. He remained with that firm as an employe from July, 1895, to 
 January, 1897, when he became the junior member. During six 
 months of this period he had ably performed the monotonous duties 
 connected with "briefing," but was then graduated to the more responsi- 
 ble post of trial lawyer. In both positions he showed his mettle. His 
 first appearance before the state supreme court was in the case of Auer- 
 bach vs. Marks, in December, 1896. 
 
 In September, 1897, he retired from the firm of Felkers, Goldberg & 
 Aarons, and has since practiced alone. For one who has but just en- 
 tered upon his career, Mr. Aarons has been retained in much important 
 litigation. Of the noteworthy cases may be mentioned Manasse vs. 
 Miller Brewing company and Lederer vs. Rosenthal, in the state su- 
 preme court. 
 
 Mr. Aarons is the author of an artick published in the September 
 number of the Central Law Journal on punctuation — how considered in 
 the law — which is attracting considerable attention among the mem- 
 bers of the legal profession for its thoroughness. 
 
 Mr. Aarons is a republican in political belief. He is a member of 
 the Masonic order, having served as secretary and junior deacon of 
 Harmony lodge. He is an advocate of sociability, both in private and 
 in club life, and while in Madison was president of the Columbian so- 
 ciety, and in Milwaukee he has been especially prominent in the affairs 
 of the Forum club, the members of which are young attorneys of Mil- 
 waukee who meet annually for debate. Mr. Aarons had the honor of 
 being one of the debating team which won in the contest with the Madi- 
 son club. 
 
584 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 VOLKERT W. SEELY. 
 
 Volkert W. Seely, son of St. Paul and Maranda Millard Seely, was 
 born in Morris, Otsego county, New York, December 10, 1843. His 
 father, although a manufacturer, was active in many public aflfairs and of 
 even more than local prominence. During the ter;Ti of Governor Bouck 
 he took a commanding interest in the state militia, being honored with 
 the commission of colonel. His ancestors were natives of New Eng- 
 land, his father, Obadiah Seely, being born in ^Massachusetts in the year 
 1800. ]\Ir. Seely (senior) came to Wisconsin in 1870 and settled in 
 Jefferson county, being for many years a member of its board of super- 
 visors. 
 
 The son, Volkert W. Seely, preceded his father to the state by sev- 
 eral years. In 1861, the year which marked his coming to Wisconsin, he 
 was in his nineteenth year and had already received an academic educa- 
 tion. He first located at Lake Mills, teaching school, studying law and 
 shorthand and otherwise evincing the qualities which were to bring him 
 future success — industry, faithfulness and ability. During the period of 
 his teaching he was principal of a school at Oconomowoc and superin- 
 tendent of schools at Fond du Lac. 
 
 At the latter place, in the offices of Gen. E. S. Bragg, G. T. Thorn 
 and Judge Mayhan, he commenced the study of his profession and was 
 admitted to the bar in 1869. Alone at the beginning of his career, he 
 afterward formed a partnership with George H. Francis, which con- 
 tinued for two years. For some time thereafter he formed no business 
 association. 
 
 While living in Fond du Lac ]\Ir. Seely had so perfected himself in 
 shorthand — and it is said that he was. the first professional stenographer 
 in Wisconsin — as to receive the appointment of official reporter for the 
 Fond du Lac circuit. His services were also in demand by the news- 
 papers, not only because of his skill as a reporter but also owing to his 
 enterprise as a newspaper representative. Upon one occasion an im- 
 portant secret political convention was being held in the state capitol 
 and Mr. Seely had been delegated by certain Chicago and Milwaukee 
 papers to report the proceedings. It was an especially choice bit for 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 585 
 
 the newspapers, since Matt. Carpenter was to be among the speakers. 
 The convention was held behind "closed doors," but the basement of 
 the state house offered vantage ground for Mr. Seely's reportorial tal- 
 ents and enterprise, and to the astonishment of the secret legislators 
 their doings were published in full. 
 
 Mr. Seely's next change of location was from Watertown to Grand 
 Haven, Michigan, where he remained for fourteen years, becoming one 
 of its foremost citizens. Among the noted law cases in which he en- 
 gaged was that which involved many intricate legal points in a contest 
 between the city and private water works. The litigation extended 
 through the state and federal courts for five years, and Mr. Seely's vic- 
 tory was complete. He was also city attorney for several years. Five 
 years of the period during which he was a citizen of Grand Haven he 
 served as director of the school board, and received other marks of pub- 
 lic esteem. 
 
 In 1888, after having lost all his property by fire, Mr. Seely removed 
 to Milwaukee, where he has since been engaged in practice. There he 
 has also been successful, his record in criminal cases having been most 
 noteworthy. His defense of Dr. Walter B. Kempster, Milwaukee's 
 health commissioner, in the impeachment proceedings undertaken 
 against him- by the city, was ably conducted. 
 
 From 1892 to 1894 he was assistant city attorney of- the city of Mil- 
 waukee, having been appointed to the ofifice by Col. Conrad Krez, who 
 was city attorney. It was during this time that he was prominently 
 before the public and bar of Milwaukee, he having had full charge of all 
 the city litigation at that time, and was very successful. 
 
 Politically Mr. Seely is a democrat. He is a Knight Templar, a 
 member of Ivanhoe commandery, No. 24, Milwaukee. In 1897 he was 
 high priest of Kilbourne chapter. No. i. 
 
 Mr. Seely's first wife was Ellen M. Waite, whom he married at 
 Watertown and by whom he had two children — J. P. and Mable D. 
 His wife died in 1865, and he was married a second time to Amra B. 
 Squier, at Grand Haven. One child, Miranda, has been born to them. 
 His present wife was the daughter of Captain Squier, a sea and lake 
 captain, as well as a contractor and ship builder. 
 
S86 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 PETER DOYLE. 
 
 Peter Doyle was born at Myshall, county of Carlow, Ireland, De- 
 cember 8, 1844; came to Wisconsin in 1850, his father settling at Frank- 
 lin, Milwaukee county; was liberally educated; taught school in Mil- 
 waukee for a time 'and studied law in the office of Butler & Cottrill. 
 Removed to Prairie du Chien in 1865 and engaged in railway opera- 
 tions; in 1873 was elected to the assembly as a democrat from Crawford 
 county; was elected secretary of state in 1873 and re-elected in 1875. 
 His official record is most excellent. On retiring from office he trav- 
 eled extensively in Great Britain and on the continent, and on returning 
 to this country entered Yale college for the purpose of reviewing his 
 legal studies preparatory to entering upon the practice of the law. At 
 the close of a year's study he received the degree of bachelor of laws, 
 his standing being third among thirty-one who were awarded that de- 
 gree. Mr. Doyle has been practicing law in Milwaukee some years. 
 
 JAMES BOYNTON ERWIN. 
 
 James Boynton Erwin was born in 1846 in Bethany, Genesee county. 
 New York. His father was a thrifty and prosperous farmer and owned 
 a large fruit and grain farm near the village of Bethany. When a young 
 man his father was a prominent contractor and builder in his part of the 
 state and erected many public buildings, among which are the Gary 
 collegiate seminary, Wyoming academy and Genesee county asylum, 
 upon the corner stones of which his name appears as builder. He was 
 a strong abolitionist and republican and was often called upon to speak 
 on public questions of interest. At the dedication of the Wyoming 
 academy, which he built, he was orator of the occasion and received 
 many congratulations and flattering words of commendation. This led 
 to a proposition from one of the leading lawyers of the county, who 
 urged him to abandon his vocation as a contractor and builder and take 
 up the profession of law, for which he had a passionate fondness, but 
 circumstances did not favor his doing so, and he finally chose the more 
 retired life of farmer. Lydia Erwin, his wife, was the daughter of John 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. S^Z 
 
 Boyntoii, of New Hampshire, who came to New York in an early day 
 and was one of the first settlers in Genesee county. 
 
 James Boynton Erwin, the subject of this sketch, was the fourth of 
 a family of six children. When a boy he was not a stranger to hard 
 work, but did his full part with the others upon his father's farm. After 
 taking the common school course, he attended the Bethany academy 
 for several years, at which institution he received, from his preceptor. 
 Prof. Scarf, the inspiration and encouragement which led to the selec- 
 tion of his chosen profession, his professor prophesying for him a suc- 
 cessful career. At the academy he received the highest honors of his 
 class and was made the valedictorian. 
 
 After leaving the academy, he, in 1867, became a student at law in 
 the office of Senator George Bowen, one of the ablest lawyers in western 
 New York, located at Batavia. Finding that the clerical work in a busy 
 law office conflicted with his progress, he, in 1868, left the office of Mr. 
 Bowen and became a student in Michigan university, at which institu- 
 tion, in addition to the study of law, he took a select course, including 
 among other studies, English literature, history, logic, Latin, physics 
 and social science. He graduated from the law department of the uni- 
 versity in 1871, and has since devoted himself to the practice of his 
 profession. 
 
 The first two years after his admission to the bar he practiced law at 
 Batavia, New York, where he was associated with William Tyrell, one of 
 the veteran lawyers of the state. Mr. Erwin is, and always has been, a 
 staunch republican, and when at Batavia was appointed by the chair- 
 man of the county republican committee one of the speakers of the 
 campaign, in which he took an active part. He was also a staunch 
 temperance worker, and edited the temperance department of the 
 "Progressive Batavian." 
 
 In the spring of 1874 he, with his brother, O. R. Erwin, came to 
 Milwaukee for a business trip. Being pleased with the city, they both 
 decided to make it their future home. O. R. Erwin entered into the 
 coffee and spice business and later in the real estate business at Chicago, 
 where he has been prosperous and honored by having the enterprising 
 suburb "Erwin," of Chicago, named after him. 
 
588 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 When beginning his practice at Milwaukee Mr. Erwin was at first as- 
 sociated with the late J. V. V. Platto and C. K. Martin. After the sec- 
 ond year C. K. Martin was elected to the office of district attorney. 
 Then Mr. Erwin was appointed assistant and served in that capacity 
 until the act creating the office was declared unconstitutional, when Mr. 
 Erwin opened an office by himself, thereafter making a specialty in the 
 practice of patent law. During the first five years of his practice in Mil- 
 waukee he was associated with the late A. McCallum of Washington, 
 D. C, who was considered one of the ablest patent lawyers of the Wash- 
 ington bar, and to whom Mr. Erwin attributes much of his early success 
 in his patent law practice. His relations with A. McCallum ceased 
 upon the latter's appointment as soHcitor of one of the leading railroad 
 companies, when thereafter Mr. Erwin continued practice for several 
 years alone. 
 
 In 1882 he became associated with the late Col. Geo. B. Goodwin, 
 under the firm name of Erwin & Goodwin; after continuing with Mr. 
 Goodwin for two years the copartnership was dissolved and Mr. Erwin 
 entered into copartnership with C. T. Benedict, under the firm name of 
 Erwin & Benedict. This firm continued in business for seven years, 
 when it was dissolved, soon after which Mr. Erwin entered into co- 
 parnership with L. G. and L. C. Wheeler, under the present firm name 
 of Erwin, Wheeler & Wheeler, which has been in existence now for the 
 past five years. 
 
 While his chosen branch in the profession and his tastes have caused 
 Mr. Erwin to devote his time largely to an office practice, he has, since 
 engaging in the profession, conducted and acted as associate counsel in 
 a large number of important cases in the United States courts in this 
 and other states. Among his earlier clients, with whom were asso- 
 ciated some interesting incidents, is the American Lubricator com- 
 pany, of Detroit. The business of said company, which for a time had 
 been in a prosperous and thriving condition, was practically paralyzed 
 by the adverse claim of a competing manufacturer to the monopoly of 
 the invention, based upon the reissue of an old patent for a process. 
 Mr. Erwin was . ernployed as counsel in the matter, when he prepared 
 an opinion clearly showing the invalidity of the reissue patent and the 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 589 
 
 fallacy of the claims of his client's competitor, thousands of copies of 
 which opinion were sent broadcast throughout the country, having the 
 effect to re-establish the business of the American Lubricator company 
 upon a stronger basis than ever before, while said opinion also had the 
 efifect to largely increase Mr. Erwin's clientage in several different 
 states where the same was circulated. 
 
 Mr. Erwin is specially fond of mechanics and finds no pleasanter 
 pastime than the investigation of the latest developments in this line, 
 and he has probably spent more to gratify his tastes in this direction 
 than many others have in fast horses or steam yachts, and while he has 
 not the time or the taste to personally attend to the commercial part of 
 the business, he is the president of a company which has placed thou- 
 sands of his inventions upon the market. His study and practical ex- 
 perience in mechanics have given him many advantages in the conduct 
 of patent cases, which necessarily involve special training, and his stand- 
 ing in the department of law he has chosen is conceded by those who 
 know him best to be second to none, as is evidenced by his success and 
 clientage. 
 
 Mr. Erwin was married twenty years ago to Edith West, the third 
 daughter of the late General F. H. West, for many years a resident of 
 Milwaukee. Her father was for two terms the president of the cham- 
 ber of commerce in Milwaukee, and was United States marshal during 
 Cleveland's administration. Edith West was reared in Milwaukee and 
 received her education at the Milwaukee female college. She has, for a 
 number of years, been a member of the ladies' art and science class and 
 the college endowment association, and is studious and progressive. 
 
 Mr. and Mrs. Erwin have, as the fruit of their marriage, two daugh- 
 ters, Clara Louise and Edith Josephine, and four sons, Orlando, Grant, 
 Gilbert and Lawrence. They are members of the Grand Avenue Con- 
 gregational church and interested in all benevolent enterprises. 
 
 THEODORE KRONSHAGE, JR. 
 
 Those who preceded the immediate ancestors of Theodore Kron- 
 shage were substantial Germans, who lived and died in the fatherland. 
 Theodore and Pauline Hildebrand Kronshage were also natives of Ger- 
 
590 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 many, but emigrated to the United States and settled at St. Louis, in 
 1866. During the succeeding year they removed to Milwaukee and 
 afterward to Boscobel, Wisconsin, where Theodore, Jr., was born, No- 
 vember 6, 1869. 
 
 He passed through the common and high schools of his native vil- 
 lage, and in 1891 graduated from the Wisconsin state university with 
 the degree of B. A. In the meantime he had partially realized an early 
 ambition to become a lawyer by a course of private study under John 
 M. Olin, at Madison, while in 1892 the CQjiclusion of his prehminary 
 training in this direction was marked by his graduation from the univer- 
 sity law department and his admission to the bar. 
 
 In September of that year he came to Milwaukee and, in partner- 
 ship with W. D. Tarrant, opened an ofhce for the practice' of his profes- 
 sion. Their business is entirely of a civil character. One of the most 
 noted cases was that fought in the United States supreme court which 
 resulted in defeating the jury system of Utah. Mr. Kronshage's prac- 
 tice, in fact, extends from Boston to Salt Lake, cases now being pend- 
 ing in Denver, Detroit, Chicago, New York, Philadelphia and the other 
 two cities mentioned. 
 
 CHARLES E. ESTABROOK. 
 
 Charles E. Estabrook, lawyer and legislator, was born near Platte- 
 ville, Grant county, Wisconsin, on the 31st of October, 1847. His 
 father, Edward Estabrook, was a farmer and a native of Illinois, mi- 
 grating to Grant county in 1836 when there were few settlers in south- 
 western Wisconsin. His mother, formerly Margaret Mitchell, was born 
 in Clinton county. New York. The father was a whig of prominence, 
 his party sending him to the assembly in 1854. He removed to Iowa in 
 1868, his wife having died in Platteville, May 26, 1863. 
 
 In early life the subject of this sketch attended country schools in 
 winter time and worked on the farm during the summer. When the 
 civil war broke out it was with difficulty that he could be restrained from 
 ofifering his services to the country, although he was then but fourteen 
 years of age. In 1864, still under seventeen, he did enlist, joining com- 
 pany B, forty-third Wisconsin volunteer infantry, and serving until the 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 591 
 
 close of the war. Being mustered out of the service in July, 1865, he 
 returned to Platteville to continue his studies. 
 
 After taking a course in the normal school, he taught in Platteville, 
 Belmont and Manitowoc, being for one year principal of the first ward 
 public school in the last named city. In the mean time he had been 
 pursuing his legal studies under the direction of William E. Carter, of 
 Platteville, and J. D. Markham, of Manitowoc, and in January, 1874^ 
 was there admitted to the bar and began the practice of his second pro- 
 fession. 
 
 At first Mr. Estabrook had no partners, but later he formed profes- 
 sional connections which resulted in the firm of Estabrook & Walker 
 and Estabrook, Walker & Baensch. 
 
 In April, 1874, a few months after commencing practice, Mr. Esta- 
 brook was elected city attorney of Manitowoc, holding that office until 
 December, 1880, and then resigning because he had been chosen to a 
 seat in the assembly. During this period he became the author of much 
 valuable legislation — such as the law providing for a state board of ex- 
 aminers for admission to the bar, which has had the effect of materially 
 elevating the standard of legal qualifications and whose provisions have 
 been substantially copied into the statutes of Minnesota, Michigan and 
 New York, and the law providing for the organization of farmers' in- 
 stitutes. This is the common school of agriculture, supplementing the 
 work of the experimental station and the other agencies provided by 
 the state for agricultural education. By this means Wisconsin has be- 
 come known throughout the world along this line of effort. 
 
 ■ As stated in "Men of Progress:" "It was largely through Mr. Esta- 
 brook's efforts that suit was begun in the supreme court to test the 
 validity. of the act of 1883 reapportioning the state into senate and as- 
 sembly districts. In conjunction with A. J. Turner, he compiled the 
 facts on which the suit was based, and by their persistence the case was 
 carried through the courts, the act was overthrown and th* right of 
 the court to inquire into the validity of such legislation was fully estab- 
 lished." 
 
 In 1886 Mr. Estabrook was elected attorney general of the state, 
 being re-elected in 1888, holding the office from January 3, 1887, to 
 
592 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 January 5, 1891. During a portion of this period he was professor of mu- 
 nicipal corporations, juries and justice court procedure and sales, in the 
 college of law of the state university. In June, 1893, he removed to Mil- 
 waukee, where he has since resided and practiced his profession. 
 
 Mr. Estabrook is an active and influential member of the repub- 
 lican party, having served as a delegate to many of its local and state 
 conventions and as a member of the national convention which met at 
 Chicago in 1884. Since he has become a resident of Milwaukee he has 
 been active in educational work in the line of library organization and 
 university extension. Naturally, also, he is interested in all that con- 
 cerns the Grand Army of the Republic and is a member of W^olcott 
 post. No. I. 
 
 On September 7, 1876, at Manitowoc, Mr. Estabrook was married to 
 Miss Jennie Hodges. They have four living children — Charles M., 
 Francis H., George M. and Benjamin H. Two daughters, Margaret 
 and Mary, died at Madison. 
 
 CHARLES F. FAWSETT. 
 
 Charles F. Fawsett, associated with the well-known firm of W^inkler, 
 Flanders, Smith, Bottum & Vilas, was born in Montgomery county, 
 Maryland, ]\Iarch 13, 1866, his ancestry being Scotch-English. Harvey 
 C. Fawsett, his father, a farmer of the Old Dominion, removed to Mont- 
 gomery county, ^laryland, in 1858 and there continued his vocation. 
 He was for many years one of the most prominent farmers of the county, 
 but has lately retired and is now living in Rockville, the county seat of 
 Montgomery county. He was always an ardent democrat and still 
 takes an active interest in the political and public afifairs of the county. 
 In 1862 he married Miss ^Marian E. Offutt, daughter of William H. 
 Ofifutt, judge of the orphans court of ^^lontgomery county,' and other- 
 wise a citizen of high standing and marked influence. 
 
 The subject of this sketch spent the earlier years of his youth upon 
 his father's farm. After passing through the public schools he taught 
 as principal in these institutions for three years and subsequently pur- 
 sued the higher branches at Dickinson college (Carlisle, Pennsylvania) 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 593 
 
 and the Washingfon-Lee university, at Lexington, Va. He left the 
 university to accept a position in the Baltimore custom house under 
 the first administration of President Cleveland, in 1888. The appoint- 
 ment which he thus received was manifest clerk in the naval office of 
 that place. 
 
 It was while fulfilling the duties of this position, in the fall of 1889, 
 that Mr. Fawsett commenced the systematic study of his profession in 
 the law school of the Maryland university, the lectures therein being all 
 after business hours. In 1891 he was graduated at the head of his class, 
 taking the regular three-year course in two years. He was made presi- 
 dent of his class, and was awarded the university prize of $100 for the 
 best examination. About the time of his graduation he was promoted 
 from the position of manifest clerk to that of assistant liquidating clerk 
 at a salary of $1,400 per year, which position he shortly afterward re- 
 signed to enter upon the practice of his profession. 
 
 In February, 1892, he opened an of^ce in Baltimore, but, consider- 
 ing the west a larger and more promising field for the young lawyer 
 than the east, he removed to Milwaukee in October of that year. On 
 January i, 1893, he formed a partnership with John F. Burke, under the 
 firm name of Burke & Fawsett, continuing in this relation until August 
 I, when he entered the ofiice of Winkler, Flanders, Smith, Bottum & 
 Vilas, with which firm he has since been associated. 
 
 Mr. Fawsett's first case was a suit brought against the city of Balti- 
 more for damages to goods caused by the overflow of an insufficient 
 sewer. It was the first case of its kind that had been tried there, the 
 local members of the profession generally entertaining the view that 
 the city was not liable for damages on account of insufficient sewage 
 capacity. Mr. Fawsett, however, gained his suit, which was the fore- 
 runner of a number of similar cases. Since coming to Milwaukee he has 
 had a broad and varied experience in the practice of the law in all its 
 branches, and by virtue of his association with the last named firm has 
 participated in many cases of the first magnitude. 
 
 In politics Mr. Fawsett has always been a democrat. He is a 
 Knight Templar and a member of Ivanhoe Commandery, Milwaukee. 
 He is also identified with the Milwaukee, Deutscher and Country clubs. 
 
594 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 JOHN L. GILMORE. 
 
 John L., the son of John M. and Sophia Mash Gilmore, was born- 
 in Green Lake county, Wisconsin, December 26, i860. His father and 
 his paternal grandparents, Dewey and Rebecca, were natives of the 
 Empire state, his mother being of Vermont birth. Mr. Gilmore's pa- 
 rents removed from New York state to Ohio, at that early day con- 
 sidered in the far west. Here they resided until about 1858, when they- 
 came to Wisconsin, and, as stated, two years thereafter was born the 
 subject of this sketch. The father still lives on the farm upon which 
 he settled forty years ago. 
 
 After attending district school in his native county, John L. entered 
 Downer college. Fox Lake, and took a full course in that institution. 
 He afterward studied law in the ofifices of F. Hamilton & Son, of Fox 
 Lake, and Rufus B. Smith, of Madison, completing his legal studies at 
 the state university. Graduating from its legal department in 1884, he 
 was at once admitted to the bar and commenced the practice of 
 his profession in Mr. Smith's office. Two years later, however, 
 desiring a wider field for the exercise of his talents, he removed to 
 Milwaukee. 
 
 Establishing himself in Milwaukee under the firm name of Toohey, 
 Morse & Gilmore, several changes occurred during the succeeding ten 
 years. First Mr. Toohey retired from the partnership and Morse & 
 Gilmore conducted the business. From 1888 to 1895 the firm was 
 Toohey, Doerfler & Gilmore, !Mr. Doerfler withdrawing during the lat- 
 ter year. The practice of the firm has covered a wide range, embracing 
 both civil and criminal cases in all the courts, and, although the firm 
 has confined its practice to no specialty, the suits which it has under- 
 taken have been almost uniformly successful. It is perhaps needless 
 to add that the credit of this record is due in no small measure to the 
 professional strength of Mr. Gilmore. 
 
 Although a republican in politics, he" has given so much of that 
 strength to his legal studies that he has not drifted into the current of 
 office-seeking which sweeps along so many members of his profession. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 595 
 
 Mr. Gilmore is a Mason and a Knight Templar, having filled all the 
 chairs in the blue lodge. 
 
 WARREN DOWNES TARRANT. 
 
 The senior member of the firm of Tarrant, Kronshage, McGovern 
 & Dielmann is a tower of strength in the partnership, both because of 
 his natural ability as a lawyer and because of the industry, care and 
 frankness displayed by him in the conduct of cases and in his dealings 
 with clients. 
 
 Mr. Tarrant is of British ancestry, his father, George Tarrant, com- 
 ing from his native England to this country when seven years of age. 
 His mother's maiden name was Clara L. Runey, her father, in ante- 
 bellum days, being a resident of Maryland. He, with most of his rela- 
 tives, were slave owners, and some of them have retained their southern 
 prejudices to the last. 
 
 Mr. Tarrant, the father of Warren D., was and is a leading merchant 
 of Durand, being a pioneer of that city. He is owner of several cream- 
 eries and president of the bank of Durand, doing business under the 
 firm name of Geo. Tarrant & Sons, and managing his extensive interests 
 at Durand, Tarrant and Eau Galle with energy and ability. 
 
 Warren D. Tarrant was born at Durand, December lo, 1867. In 
 1883 he graduated from the high school and from 1883-86 assisted nis 
 father in his business. 
 
 As a preliminary to his legal training he took a full course in mod- 
 ern classics at the university of Wisconsin, graduating in 1890. He 
 then commenced the study of law under John Eraser, at Durand, and 
 completed his legal course at the state university, from which he 
 graduated in 1892. While pursuing his studies at Madison he also 
 continued his practical work in the office of Messrs. Olin & Butler, so 
 that when he was admitted to practice before the state supreme and the 
 United States courts in June of that year few young men have been 
 so well equipped for an active professional career. 
 
 Locating in Milwaukee September i, 1892, Mr. Tarrant formed a 
 partnership with Theodore Kronshage, Jr., which, under the firm name 
 of Tarrant & Kronshage, continued until January, 1898. Since that 
 
596 HISTORY OF THE BENCH AND BAR OP WISCONSIN. 
 
 date two additional members have been received, making the firm Tar- 
 rant, Kronshage, McGovern & Dielmann. Mr. Tarrant's first year's 
 experience in Milwaukee was not especially encouraging, but since then 
 the business has grown until it is one of the largest in the city — an in- 
 dication of its prosperity being the tasteful suite of offices maintained 
 by the firm. 
 
 Numerous important cases have been carried through the courts in 
 a masterly fashion, among others the following: The Notobac trade 
 mark cases, including the $100,000 libel suit which grew out of them; 
 the Philbrook guardianship matter, involving the right of a guardian 
 attorney to charge regular legal services for work performed; Beck & 
 Pauli Lithographing company vs. Rockford Watch company; Indiana 
 Springs company's "mud" cases, in Chicago, to restrain certain parties 
 from using the name "Magnetic Mineral Mud," which had been adopted 
 by the above named corporation, as well as other suits of a corporate 
 and probate nature. 
 
 Mr. Tarrant has always been a steadfast republican, and an earnest 
 advocate of municipal reform. He has never been a politician, how- 
 ever, and the only official position which he has held has been that of 
 court commissioner for Pepin county, which he filled in 1889-91. He 
 is a Mason and a member of the Knights of Pythias, as well as of the 
 college fraternity. Delta Upsilon, and the law fraternity, Harlan chapter 
 of Phi Delta Phi. 
 
 JOHN A. F. GROTH. 
 
 Mr. Groth was born near Greifenberg, Pommerania, Germany, on 
 December 6, 1861. His father, Ludwig, was an economist and as an 
 active member of the liberal party took a prominent part in Gjerman 
 politics. He left Germany partly on account of political reasons, set- 
 tling in Milwaukee in 1873, where he died nine years later, at the age 
 of sixty-six. The surviving family consisted of the widow. Bertha 
 Groth (nee Boeder), and the children — ^John, Paul, Mary and Ella. 
 Paul J. F. Groth is in the general passenger department of the Chicago 
 & North-Western railway, Chicago; Mary is the wife of W. H. Momsen, 
 of Milwaukee, and Ella is unmarried. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 597 
 
 Previous to the commencement of his legal studies, Mr. Groth's 
 education was obtained in the elementary schools of his native land, in 
 the Greifenberg gymnasium and the Milwaukee high school. He be- 
 gan the study of law in the office of Frank B. Van Valkenburgh, con- 
 tinuing it with John C. Ludwig and P. J. Somers. The death of his 
 father retarded his progress in this direction for about six years, this 
 period being passed by him in the auditing department of the Chicago, 
 Milwaukee & St. Paul railway. However, he by no means discontinued 
 his law studies, and he not only preserved the knowledge already ac- 
 quired, but also pursued a course in philosophy, following the schools 
 of Kant and Schopenhauer. 
 
 In the beginning of 1889 Mr. Groth resumed his law studies sys- 
 tematically in the ofifice of C. A. Koeffler, Jr., and two years later was 
 admitted to the bar at Madison, Wisconsin. He practiced independ- 
 ently until the spring of 1894, when he became a member of the firm of 
 Elliott, Hickox & Groth, with which firm he was associated for three 
 and a half years, since which time he has practiced alone. During 
 his professional career he has been identified with much noteworthy 
 litigation, among which may be instanced the Plankinton bank cases 
 and the F. F. Day assignment. 
 
 In poHtics Mr. Groth has been an active republican and is an ef- 
 fective campaign orator. During the McKinley campaign he delivered 
 some eighteen speeches throughout the state in both the English and 
 German languages, addressing about ten thousand people. In the 
 spring of 1898 he was, by a small margin, an unsuccessful candidate for 
 the nomination of city attorney, notwithstanding which, he at once en- 
 tered vigorously into the campaign and did most effective work for his 
 party. 
 
 In reHgious belief Mr. Groth is a Lutheran. He is a student of lit- 
 erature as well as of the law, and is in sympathy with many benevolent 
 societies, being directly affiliated with the National Union, the Royal 
 Arcanum, the Knights of the Maccabees of the World, and the Ger- 
 mania. 
 
 On the 24th of January, 1893, he was married to Miss Augusta 
 Winzen. They have one son, Jean Paul. 
 
 38 
 
598 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 ERNEST S. MOE. 
 
 Mr. Moe's mother, a native of Quebec, is of English descent. His 
 father was born in Ohio and emigrated to Racine county, Wisconsin, at 
 an early day, becoming a general merchant at Union Grove, where 
 Ernest S. Moe was born on the 26th of August, i860. After being 
 educated in the district schools, or, at least, progressing as far as they 
 would take him, he entered the high school, graduating therefrom when 
 only thirteen years of age. For the succeeding four years he assisted 
 his father in his store and then, entering the university of Wisconsin 
 and taking the modern classical course, graduated with honors in 1883. 
 During his collegiate course he was a leader both in athletic afifairs, in 
 the fraternities and in all oratorical contests. In short, at this early day, 
 he was not only a thorough student but active in many movements out- 
 side of the study and the classroom. 
 
 After graduating from the university of Wisconsin Mr. Moe at once 
 entered the law office of W. C. Williams. A year of hard study was so 
 productive of results that in October, 1884, he was admitted to the bar, 
 but remained with Mr. Williams for some time after he had entered 
 upon his second term as district attorney. He was also in the ofifice of 
 Chapin, Dey & Friend for two years, establishing himself as an inde- 
 pendent practitioner in 1888. In the meantime (1887) he had become 
 the attorney for the Northwestern Collection Agency and soon after- 
 ward president of the company, as well as active manager. Besides act- 
 ing in these capacities he is associated in legal partnership with Otto R. 
 Hansen, or perhaps, more correctly, the firm is now not only engaged 
 in general practice, but has the management of that agency's entire legal 
 business. The partnership with Mr. Hansen was formed in 1896, the 
 firm name being, for the two previous years, Moe & Cole. 
 
 Mr. Moe, as a republican, has taken quite an active part in local 
 politics and made a fine record as assistant district attorney under W. C. 
 Williams. He is still in touch with college life through his connection 
 with the Psi Upsilon fraternity. He is also a member of the Knights 
 of Pythias, Milwaukee lodge. No. i, and is connected with the Royal 
 League. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 599 
 
 Mr. Moe's wife was, before marriage, Miss Isabella Williams, whose 
 parents are natives of Wales. Her father, Mr. Lewis Williams, settled in 
 Kenosha county sixty years ago and is one of the most prosperous 
 farmers and stock raisers in southern Wisconsin. They have one child, 
 Margaret. 
 
 Mr. Moe's remote ancestors were of French extraction. The family 
 name is properly De Moe, the American branch originating in two 
 brothers who emigrated from France about the middle of the eighteenth 
 century and settled near Plattsburg, New York. From this historic 
 point, when a boy of eight years, Edwin Moe, the grandfather of Ernest, 
 witnessed from his father's house the battle of Lake Champlain. In fact, 
 many of Mr. Moe's paternal ancestors were participants in both the 
 wars of the revolution and of 1812. Representatives of the family re- 
 moved from Plattsburg to Cayuga county, New York, where their de- 
 scendants still reside. Edwin Moe, the immediate ancestor of our 
 subject, emigrated from New York to Ohio at an early day and died 
 only a few years ago, at the age of ninety years. 
 
 Mr. Moe's maternal ancestry is English. His maternal grarid- 
 father, James Mather, was born near Bolton, England, and is a member 
 of the famous family which has gone into history because of its connec- 
 tion with New England rather than with the mother country. Emi- 
 grating to Canada about the year 1837, he determined to make the 
 country of freer opportunities his home and came to the United States 
 during the following year. Locating in Racine county, in 1840, he en- 
 gaged in several Hnes of business. He cultivated land, kept a hotel, sold 
 produce and otherwise made himself known as an industrious and prac- 
 tical resident. 
 
 Other branches of the family represented by Mr. Moe are the Cases, 
 original pilgrims of the Mayflower, members of which eventually set- 
 tled in Connecticut to assist in the founding of the commonwealth; also 
 the Penningtons, a wealthy and influential family of Liverpool and vi- 
 cinity. Dr. Thomas Pennington, a noted physician, being at one time 
 mayor of the city. The Liverpool branch is only represented in Eng- 
 land and its members are usually connected with the legal profession. 
 
6oo HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 COLWERT K. PIER. 
 
 Colwert K. Pier was the son of the first white man who settled at 
 the location of the present city of Fond du Lac, Wisconsin; he was 
 born June 7, 1841, and was the first white child born in Fond du Lac. 
 Until he was sixteen he helped on his father's farjn; after attaining that 
 age he entered Lombard university at Galesburg, Illinois; after leaving 
 there he began the study of law with Judge Robert Flint, of Fond du 
 Lac; before he was prepared for admission to the bar the civil war 
 broke out; at the age of twenty he enlisted as a private in company I, 
 first Wisconsin, the first volunteer in his native city. At the expiration 
 of his term of enlistment (three months) filial obligations required him 
 to return home, which he did; he engaged in the prosecution of his law 
 studies at the Albany law school and in law offices in Fond du Lac. 
 The desire to further serve his country in the field led him to organize 
 a company of which he was chosen captain; he proceeded along that 
 line until he had organized nine companies; the commissioned officers 
 of the regiment so organized chose him as its colonel. He was then 
 twenty-three years of age. At the time this regiment was tendered the 
 government did not need it; but soon another call for troops came; Mr. 
 Pier was commissioned lieutenant colonel of the thirty-eighth Wiscon- 
 sin and went to the front, joined Grant's forces and fought in the Wilder- 
 ness and about Richmond. Mr. Pier became colonel. In August, 
 1865, he was mustered out, returned to his home, was admitted to the 
 bar, became a member of the firm of Gillett, ConkHn & Pier, which was 
 reorganized as Gillett & Pier and then changed to Gillett, Pier & Bass. 
 For a time Col. Pier practiced alone. In 1874 he gave up the general 
 practice to take charge of other business interests and did not there- 
 after devote much time to the pursuit of professional business. 
 
 About 1888 Col. Pier removed to Milwaukee, where he resided until 
 his death, which was caused by a stroke of apoplexy and occurred 
 April 14, 1895. He was active in politics, Grand Army circles and in 
 various business affairs. During the existence of the state soldiers' 
 orphans' home he was, for a long time, one of its trustees and for a part- 
 of the time an officer of the board. It is worthy of note that Col. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN^ 6oi 
 
 Pier's family, though of the gentler sex, all take to the law. Mrs. Kate 
 Pier, his widow, and their three daughters have been graduated from 
 the college of law of the university of Wisconsin, have been admitted 
 to the bar, and most of them have appeared before the supreme court. 
 
 KATE PIER. 
 
 Kate Pier, daughter of John and Mary Hapiilton, was born June 22, 
 1845, in St. Albans, Vermont, removing with her parents to Fond du 
 Lac, Wisconsin, at the age of eight years. She was educated in the 
 public schools of that city, graduating from the high school in 1862. 
 She taught in the public schools of Fond du Lac and in 1865 married 
 Colwert K. Pier. Their children were five daughters, three of whom 
 are living. 
 
 In 1 87 1 her father died and Mrs. Pier assumed the management of 
 his estate. Her success therein induced her to determine to enter the 
 legal profession, and, with her eldest daughter, Kate H. Pier, who had 
 recently graduated from the high school, entered the college of law 
 in the university of Wisconsin. They were both graduated in 1887. 
 
 A year later the Pier family removed from Fond du Lac to Milwau- 
 kee, where Mrs. Pier at once opened a law office. Her three daughters 
 have now all joined her in this office. 
 
 In 1891 Mrs. Pier was appointed circuit court commissioner, which 
 office she still holds. While Mrs. Pier has occasionally appeared in va- 
 rious courts of record in the state and before the supreme court, yet the 
 greater portion of her time has been and is occupied with general office 
 business, her duties as court commissioner and the management of es- . 
 tates. The more active work has been attended to by the daughters. 
 
 KATE H. PIER. 
 
 Kate Hamilton Pier was born December 11, 1868, in Fond du Lac, 
 Wisconsin, on the same farm on which her father had been born. 
 Within a few months after finishing her public school course, in com- 
 pany with her mother, she entered the college of law in the university 
 of Wisconsin. In 1887 both ladies received the degree of LL. B. from 
 the university. Miss Pier entered at once upon the practice of law 
 
6o2 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 in Fond du.Lac, in the office of her father and mother. She tried her 
 first case in the Fond du Lac county court. Within a year the family 
 removed to Milwaukee, where Miss Pier began her legal work in the 
 office of the legal department of the Wisconsin Central railroad. Later 
 she entered her mother's law office, where she has ever since remained. 
 In 1891 she argued her first case before the supreme court, being the 
 first woman attorney to argue a case before thaj body. In 1894 she 
 argued a case before the United States circuit court of appeals of Chi- 
 cago, being, also, the first woman attorney to appear in that court. In 
 the same year she was admitted to practice in the supreme court of the 
 United States. • 
 
 CAROLINE H. PIER. 
 
 Caroline Hamilton Pier-Roemer was born at Fond du Lac, Septem- 
 ber 18, 1870. She was educated in the public schools of Fond du 
 Lac, Madison and Milwaukee. After graduation at the high school she 
 entered the college of law at the university of Wisconsin, receiving the 
 degree of LL. B. therefrom in 1891. After this she studied elocution for 
 a short time at the Northwestern university at Evanston, Illinois. She 
 has been engaged in the active practice of the law in Milwaukee ever 
 since. She was admitted to the bar of the supreme court of the United 
 States in 1897. November 17, 1897, she married John H. Roemer, of 
 the Milwaukee bar. 
 
 HARRIET H. PIER. 
 
 Harriet Hamilton Pier was born in Fond du Lac, April 26, 1872. 
 She was educated in the public schools of Fond du Lac, Madison and 
 Milwaukee. In company with her sister Caroline she entered the col- 
 lege of law at the university of Wisconsin, from which institution both 
 girls received the degree of LL. B. in 1891. She has practiced with her 
 mother and sisters in Milwaukee ever since. Much of Miss Harriet's 
 time has been passed in northern Wisconsin, where she has tried some 
 very important cases relating to real estate titles and proceedings of 
 county officers, etc. Miss Harriet argued her first case before the su- 
 preme court of Wisconsin in 1896. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 603 
 
 EMMONS E. CHAPIN. 
 
 Emmons E. Chapin was reared on the old homestead farm of his 
 parents, Deacon Orange and Fanny (Greene) Chapin, in the town of 
 Aurelius, about four miles west from the city of Auburn, New York, on 
 the old Genesee turnpike. His earliest recollections are of the raci^^s 
 between the "regular" and "opposition" four-horse stage coaches when 
 they struck the long level through the old farm, and these races could 
 hardly have been less spirited than the chariot races of ancient history. 
 The horses were driven by superb horsemen, and in passing the old 
 home would be neck and neck on a "dead run" till out of sight on their 
 way to Buffalo or on their way to Albany, the coaches being filled with 
 passengers and the "boots" with baggage and mail. The people along 
 the turnpike mourned when the coach and four gave way to the railroad 
 train. 
 
 His father was of the fifth generation from the distinguished Deacon 
 Samuel Chapin, of Chicopee, Massachusetts, who took the "freeman's 
 oath" at Boston in 1642. His mother was the daughter of Levi Greene, 
 a nephew of General Nathaniel Greene of revolutionary fame. Both of 
 Mr. Chapin's grandfathers seryed in the revolutionary war, and his 
 father was a soldier in the last war with Great Britain. His grandfather, 
 Levi Greene, was in the battle of Bennington under General Stark and 
 heard his heroic words: "Boys, we win this fight or Molly Stark sleeps 
 a widow to-night." His grandfather Chapin was present at the sur- 
 render of General Burgoyne. 
 
 Mr. Chapin attended the public and private schools and, finally, the 
 academy until he reached the age of sixteen years, when he began teach- 
 ing school in his native town of Aurelius. Subsequently he taught the 
 pubHc schools at Montezuma, and when of age was chosen superin- 
 tendent of schools of Aurelius, which position he held for 'a few months 
 before starting for the great west. Whilst teaching and serving as 
 superintendent of schools he pursued the study of law, obtaining his 
 Blackstone, Kent and other elementary works from ex-Secretary of 
 State Christopher Morgan, who then was the law partner of William H. 
 Seward and a friend of the Chapin family. He landed at Kellogg & 
 
604 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Strong's dock in Milwaukee, October i, 1854, and soon afterward vis- 
 ited different parts of the state looking for a place to locate, also writing 
 a series of letters for the eastern papers. He finally located at Ocono- 
 mowoc, where he remained until the spring of 1856, at which time, hav- 
 ing married Emily Jane Blanchard, an old schoolmate, he removed to 
 Columbus, where he lived and practiced law until he came to Mil- 
 waukee in 1880. Since that time he has resided in this city and con- 
 tinued the active practice of law. 
 
 Mr. Chapin has earned not only a local, but a state reputation as 
 an upright, painstaking and successful lawyer, having the confidence 
 of the courts and public generally. He has been engaged in many im- 
 portant suits and has accomplished much in settUng disputed questions 
 under the laws of the state. Probably the most important litigation in 
 which he has been engaged was that in which he appeared as counsel 
 for the general government and defended it against suits for damages on 
 account of the improvement of the Fox and Wisconsin rivers, during 
 Grover Cleveland's first administration. During the four years of 
 service in this professional work Mr. Chapin disposed of one thousand 
 one hundred and twenty-seven suits, involving claims against the gov- 
 ernment aggregating three million and sixty-eight thousand dollars, 
 before the commissioners and courts. This amount of claims, by suc- 
 cessful management, was reduced to about three hundred thousand dol- 
 lars, and thus ended litigation which had been before the commissioners 
 and courts ever since the passage of the act, March 3, 1875. Mr. 
 Chapin may very justly take pride in his services to the United States 
 in the final closing of this most mischievous and oppressive litigation. 
 
 In politics Mr. Chapin is a democrat and for a long time served as 
 a member of the democratic state central committee. Though fre- 
 quently nominated by his party for public office, he always declined to 
 run, yet was ever ready with voice and pen "to uphold the eternal and 
 everlasting principles of Jefferson democracy." At his old home in 
 Columbus he did much to build up the city and its schools. He drafted 
 and assisted in securing the passage by the legislature of the city charter 
 of Columbus, in 1874, and contributed greatly to the organization of 
 the city and its free high school. He was for a long time president of 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 605 
 
 -the board of education in that city. Jnne 23, 1896, Mr. Chapin was 
 appointed by W. G. Rauschenberger, mayor of the city of Milwaukee, 
 to the office of member of the city service commission for the term of 
 four years, commencing the first Monday in July, 1896, and is still serv- 
 ing as such commissioner. This appointment was made while Mr. 
 Chapin was absent at the seashore and without his knowledge. 
 
 In Masonic circles Mr. Chapin ranks high. He was one of the 
 charter members of the Columbus lodge. No. 75, chartered in June, 
 1856, of which lodge he is now an honored member. He has been 
 grand lodge trustee, deputy grand master, and for two years in succes- 
 sion, 1880-81 and 1881-82, grand master of the grand lodge of the state 
 of Wisconsin, and the subsequent four years wrote the foreign cor- 
 respondence for the grand lodge, reviewing the annual correspondence 
 of the sixty-six grand lodges in correspondence with the grand lodge 
 of Wisconsin. This work gave him a national reputation among 
 Masons. 
 
 CORNELIUS K. MARTIN. 
 
 Cornelius K. Martin was born of James and Rebecca Martin, at 
 Poughkeepsie, New York, April i6th, 1828, and died at Milwaukee, 
 Wisconsin, October 23d, 1882. His youth was passed on a farm, but 
 being very lame, as a result of hip disease when a child, he had more 
 leisure for reading and study than in those days was usually enjoyed 
 by a farm boy, so that he early acquired the bent that made him 
 wring from the world at great expense of time and labor and resolute 
 self-denial and discipline a college education and an admission to the 
 bar. His academic course was carried on wholly by his own earnings, 
 and so was a very long one, a year of college work following a year of 
 saving for it by teaching in district schools, and his degree not coming 
 to him till his twenty-sixth year. He married Olive Jane Elmore of 
 Esopus, New York, immediately after graduation, and they then came 
 to Wisconsin, where, first at Troy and after at Milwaukee, Mr. Martin 
 taught school and studied law. He was admitted to the Milwaukee bar 
 in July, 1857, and at that bar practiced without intermission until his 
 last sickness in 1882. He was for eight successive years district at- 
 
6o6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 torney for Milwaukee county. His partnerships were few and of short 
 duration. 
 
 His practice was of a general nature, but it is by his conduct of sev- 
 eral important criminal cases that he is chiefly remembered. 
 
 He was always deeply interested in politics, and was a very ardent 
 and active democrat till the last years of his life, when he became a re- 
 publican. He was a frequent speaker at political meetings. 
 
 Mr. Martin was a man of sanguine temperament, of a large frame, 
 and with his handsome head and figure, his full, strong and carefully 
 trained voice, his simple, concise and well-ordered vocabulary, and his 
 habit of logical, direct thought, he was a power at the bar or on the 
 platform. 
 
 JOHN T. FISH. 
 
 John Tracy Fish was born in Lake Pleasant, Hamilton county. 
 New York, November 8, 1835. He is a scion in the eighth generation 
 of the old and respected Fish family of New England, whose founder, 
 Thomas Fish,* came from England before 1643 and became one of the 
 earliest settlers of Rhode Island. 
 
 The parents of the subject of this sketch were Joseph Warren Fish 
 and Submit (McCumber) Fish, the latter of Scotch ancestry. Mr. 
 Fish's father was a farmer in good circumstances, a man of force and 
 power, who possessed a natural "legal mind," which, had he become a 
 
 *The Genealogical Dictionary of Rhode Island devotes much interesting space 
 to the progenitors of the Fish family; Thomas and Mary Fish, his wife, died 
 respectively in 1687 and 1699, and to the first named, Thomas Fish, a grant of land 
 was made in 1643, the date probably representing the time of the settlement in 
 Rhode Island and being six years only after the banishment of Roger Williams. 
 Thomas Fish was a member of the town council in 1674 and evidently a citizen of 
 substance and consequence in his community. There appears a record telling how, 
 in 1684, he deeded to his grandson. Preserved Fish, the homestead, comprising 
 fifteen acres of land, upon which his son, Thomas, Jr., had lived and died, and by 
 his will, dated 1687, it is shown that he left two sons and three daughters. The 
 subject of this sketch, as indicated by the same genealogical records, is also a 
 direct descendant of William and Mary Hall, of Portsmouth, R. I., the former of 
 whom was admitted an inhabitant of Aquidneck on August 8, 1638. Their son, Zuriel, 
 married Elizabeth Tripp, daughter of John and Mary (Paine) Tripp, the latter being 
 a daughter of Anthony Paine, who was admitted an inhabitant of Portsmouth in 
 1638. In this way Mr. Fish traces indisputably his ancestry to those who were 
 among the founders of Rhode Island and of New England. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 607 
 
 member of the bar, would have placed him high in the profession. 
 From him Mr. Fish has inherited most of those qualities that have 
 made his career at the bar a continuation of successes. 
 
 Forced to work upon his father's farm until he was twenty years of 
 age, Mr. Fish's early education was necessarily irregular and imperfect, 
 one term in the Kingsborough academy being all the schooling which 
 he was able to obtain beyond that which was afforded by the district 
 schools. Yet when, in the fall of 1855, he settled at Lake Geneva, 
 Wisconsin, where his brother had previously located, he was able to 
 secure a position as a teacher, a testimonial at once to his diligence, his 
 perseverance and his pluck. Then for a season he turned his hand to 
 manual labor, with such good result that his circumstances warranted 
 an important change in his condition of life, and on May i, 1857, he 
 was married to Julia Ann King, of Woodstock, Ilhnois. She was the 
 youngest of six children. Two of her brothers became prominent 
 physicians. She died in 1869, leaving an infant but thirteen days old. 
 This child is now John King Fish, attorney, with Fish, Gary, Upham & 
 Black. The other children are Frank Marson Fish, judge of the first 
 Wisconsin circuit; Emory Warren Fish, holding a responsible position 
 with J. I. Case Threshing Machine company, of Racine, Wisconsin, and 
 Etta, now Mrs. Gharles E. Tingley, of Boston, Massachusetts. 
 
 In the fall of 1857 Mr. Fish left Lake Geneva, Wisconsin, and set- 
 tled in McHenry, Ilhnois. He bought a farm, with the full intention 
 of making agriculture his life work. Fortunately for him, judging by 
 after events, the season of 1858 proved so disastrous as to leave him, 
 after he had paid his debts, almost penniless. Then once more his 
 energy asserted itself, and while considerfng what he should next do 
 he displayed his pluck and energy by supporting his family by chopping 
 wood. 
 
 It was at this critical period in his life that his very good friend, 
 L. C. Church, an attorney of Woodstock, estimating his abilities higher 
 than he did himself, urged him to study law. Mr. Schumacher, an at- 
 torney of the same place, also gave him plenteous encouragement. Mr. 
 Fish had free access to their libraries and, working with the utmost 
 industry, frequently pursuing his studies far into the night, he was 
 
6c8 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 prepared by July, 1859, to take a successful examination for admission 
 to the bar before H. S. Winsor, Robert Harkness (then judge of the 
 first circuit), and Mr. Kellogg, of Whitewater. 
 
 Mr. Fish began to practice his profession at Sharon, Walworth 
 county, Wisconsin. Recognizing the fact that whatever he was to be- 
 come depended only upon himself, and that hard, steady work and con- 
 tinual study were required to gain the mark of his ambition, he began 
 a regular system of economizing his time, making every minute count 
 to some advantage. Clients being few, to add to his pecuniary re- 
 sources sums sufficient to support his family, he engaged in manual 
 labor as a carpenter. His professional duties, however, were not 
 neglected, and during this time he was employing all of his spare time 
 in continuing his study of the law. 
 
 In August, 1861, he enlisted as a private in company C, thirteenth 
 ^\'isconsin volunteer infantry, and when the organization was perfected 
 was chosen its second Heutenant. In December he accompanied his 
 command to Fort Leavenworth, Kansas, thence to Fort Scott and* 
 Lawrence, in the same state, and afterwards to Fort Riley. From the 
 last named point he expected to be ordered to New Mexico with the 
 expedition under General James Lane, but the project was abandoned 
 and the regiment instead called to Lawrence and thence taken by boat 
 to St. Louis and Columbus, Kentucky. In the fall of 1862 the young 
 lieutenant was ordered to Forts Henry and Donelson, remaining at the 
 latter place until just before the battle of Chickamauga, when he 
 marched with his regiment to Stevenson, Alabama. On the evening 
 of October 26, 1863, the regiment left Stevenson, Alabama, and went 
 into winter quarters at Edgfefield, on the Cumberland, opposite Nash- 
 ville. During the winter the regiment left on a furlough for Wiscon- 
 sin, where Lieutenant Fish remained for five weeks and then returned 
 to Nashville. In April, 1864, the thirteenth regiment returned to Ste- 
 venson and from the 6th of June, for nearly three months, it was located 
 at Claysville, Alabama. Late in August it was ordered to Huntsville, 
 where it^rrived on the 3d of September. In July, 1865, the thirteenth 
 regiment, then a part of the third brigade, of the third division of the 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 609 
 
 fourth army corps, left for Texas, going into camp on the i6th of July. 
 Mustered out of service on December 26, 1865, as captain of his 
 company, Mr. Fish returned to Sharon and in December of that year 
 tried his first case in the circuit court. From that time on success has 
 ever attended him. His cautious, deliberate methods gained for him 
 the reputation of a safe counselor, and the confidence of his community 
 was extended to him — a confidence which has always continued to be 
 reposed in him throughout his long professional career. He was 
 elected district attorney in 1868 and moved to Racine. In 1871 Mr. 
 Fish became associated with Charles H. Lee, under the firm name of 
 Fish & Lee. After seven years Mr. Lee retired from the firm to be- 
 come special counsel for the J. I. Case Threshing Machine company. 
 In 1878 Mr. Fish formed another partnership with J. E. Dodge, late 
 assistant attorney general of the United States, and, with the exception 
 of one year, during which Mr. Dodge was absent, this association was 
 continued uninterruptedly for seven years. In May, 1884, his son, 
 Frank M. Fish, became a third member of the firm, the style of which 
 was Fish, Dodge & Fish. In October, 1885, Mr. Fish moved to Mil- 
 waukee to enter the firm of Jenkins, Winkler & Smith. While not re- 
 stricting his practice to any single department, Mr. Fish, from an early 
 period in his professional career, made a close study of corporation and 
 railroad law, and when, in 1887, John W. Gary was promoted to the 
 position of general counsel of the Chicago, Milwaukee & St. Paul Rail- 
 road company, he was induced to relinquish a flourishing general prac- 
 tice and accept the appointment of general solicitor of that company, 
 one of the principal railroad corporations of America. Placed in full 
 charge of all its extensive litigation, with headquarters in Chicago, he 
 carried out the arduous and very responsible duties until February, 
 1894, when he resigned and returned to Milwaukee. There the firm of 
 Fish & Cary, composed of John T. Fish and Alfred L. Cary, was formed, 
 and Mr. Fish resumed general practice. But his ability as a railway 
 attorney had been so positively demonstrated that he was soon placed 
 in charge of the legal affairs of the Ashland division of the Chicago & 
 Northwestern Railway company, and in 1897 assumed the management 
 of the entire legal business of the company within the state of Wiscon- 
 
6lO HISTORY QF THE BENCH AND BAR OF WISCONSIN. 
 
 sin. On the death of Jerome R. Brigham, one of the old and prominent 
 lawyers of the city, during the early part of the year, the firm of Wells, 
 Brigham & Upham was, in ^lay, 1897, consolidated with that of Fish 
 & Cary, forming the new firm of Fish, Gary, Upham & Black, which is 
 unquestionably one of the most substantial and prosperous legal or- 
 ganizations in the northwest. 
 
 Mr. Fish was again married, on September i, 1870, to Eliza Samp- 
 son, daughter of Rev. ^^'iUiam H. Sampson, the first president of the 
 Lawrence university, Appleton. They have two children — William S., 
 now reading law, and Irving A., who is still attending school. 
 
 For more than thirty years ^Ir. Fish has been a distinguished figure 
 at the Wisconsin bar, and during most of that period has ranked as one 
 of its ablest and most successful members. His reputation as a lawyer 
 has been won at a bar famous for the learning, skill and distinguished 
 successes of many of its members and in open competition with some of 
 the most brilliant and accomplished advocates of the present generation. 
 This reputation is not based upon those superficial attributes which fre- 
 quently bring notoriety and fortune to those possessing them, but on 
 solid legal acquirements. In the opinion of many competent critics, 
 ]\Ir. Fish is probably without a superior in the special field to which he 
 has of late years given his chief attention. So clear are his perceptions 
 and so accurate his judgments that his conclusions are seldom over- 
 thrown. His mental processes are so unerring in their results that they 
 have been described as "mathematical." 
 
 An old lawyer who has had an extensive acquaintance with the bar of 
 ^^''isconsin for nearly half a century, and who, during the whole profes- 
 sional career of INIr. Fish, has known him intimately, speaks of him in 
 the following terms: "During the past thirty years this state has had, 
 and still has, many great lawyers practicing in its courts, but it is no 
 disparagement to any of these to say that, in professional acquirements, 
 in untiring industry, in soundness of judgment, in strict fidelity to duty 
 and in professional success, ^Ir. Fish is the peer of any of them. He 
 is, and long has been, one of the leaders of the bar, both in the state 
 and federal courts. He never afifects the ornamental graces of mere 
 oratory, but he always goes into court fully equipped for the contest 
 
HISTORY OF THE BENCH AND BAR OP WISCONSIN. 6li 
 
 before him. He excels in the somewhat rare abiUty of stating- the facts 
 of his case concisely and strongly, and his arguments are clear, logical 
 and convincing — much the most important and valuable factors in suc- 
 cessful forensic effort. 
 
 "Mr. Fish has been a prominent practitioner in the supreme court 
 of this state for the last thirty years, and cases there argued by him are 
 reported in numerous volumes of the Wisconsin reports. Many of these 
 are cases involving large interests and most important legal principles, 
 and his arguments have been potent in forming and establishing the 
 jurisprudence of the state. He also possesses business ability of a high 
 order, which has not only been an important element in his great pro- 
 fessional success, but has enabled him to amass a handsome fortune 
 without diverting him from the earnest practice of the law. 
 
 "Mr. Fish has never held ofifice to any considerable extent, and has 
 never sought ofifice, but has devoted himself with singleness of purpose 
 to his chosen calhng, apparently quite indififerent to public position. 
 Who can say that he erred therein? Yet those who know his eminent 
 judicial qualities can but regret that he has always avoided judicial po- 
 sition, and, hence has not been called to the bench of the state. His 
 name goes easily in the list of the names of the best and greatest law- 
 yers of Wisconsin. 
 
 "Mr. Fish is a gentleman of high personal character. He is a model 
 husband and father and a most genial and attractive companion. His 
 home, in which his children and friends love to gather often, is an 
 ideal one." 
 
 HAROLD GREEN UNDERWOOD. 
 
 H. G. Underwood, an authority of wide repute on patent law, was 
 born in Litchfield, Herkimer county, New York, on August i, 1852. 
 John DeLoss Underwood, his father, a well-known lawyer of Albany, 
 New York, died in 1855. 
 
 The first definite records of the family date from 1106, when Guy 
 Underwood figures as a judge and a royalist in the reign of Henry L 
 Upon him were bestowed the family arms, for valuable services ren- 
 dered upon the battle field of Tenchebray during that year. The crest 
 
6l2 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 bears the motto Omnes Arbusta Juvant — "We all delight in the under- 
 wood." Early in the seventeenth century the progenitors of the Ameri- 
 can branch emigrated from Hertfordshire, England, and settled in Mas- 
 sachusetts, near Plymouth. This advance guard consisted of the two 
 sons of Aquilla Underwood: John Underwood, who established himself 
 in the Old Bay state, and James Underwood, who became a resident of 
 Virginia. Thus were planted the northern and southern branches of 
 the family in America. 
 
 The mother of Harold G. Underwood was known in maidenhood 
 as Marcia Green. Her father. Rev. Beriah Green, a Congregational 
 minister, was settled over various charges in Vermont, Connecticut, 
 Ohio and New York. He was also professor of sacred hterature in the 
 Western Reserve college of Ohio, president of the Oneida institute at 
 Whitestown, New York, and first president of the American Anti- 
 .Slavery society. Freeman Foote, his mother's grandfather, was a sol- 
 dier of the revolution under Colonel Ethan Allen, being present with 
 that God-fearing patriot at Fort Ticonderoga. 
 
 Our subject passed his boyhood in Whitestown and Utica, New 
 York, attending their public schools and enjoying a training in the 
 classics under the tuition of his grandfather, above mentioned. On 
 account of ill health the boy was taken from school, and then followed 
 a period of uncertainty as to whether he should make a specialty of 
 mathematics or of the law, to each of which studies he was partial. 
 From the age of sixteen until he was twenty he served as assistant 
 actuary of the New England Mutual Life Insurance company, of Bos- 
 ton, in this capacity utilizing his mathematical talents. Finally, how- 
 ever, his love for the legal profession predominated and, removing to 
 Washington, he began the study of the law at Columbian university. 
 Perhaps the strongest influence brought to bear in the formation of 
 this decision was the warm encouragement of his uncle, John C. Under- 
 wood, judge of the United States district court for the eastern district 
 of Virginia. It was in his ofifice that much of his early professional in- 
 struction was obtained. He was admitted to the bar at Washington in 
 1875, receiving the degree of LL. B. during June of that year. 
 
 In the meantime (1873), while engaged in his legal studies, Mr. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 613 
 
 Underwood had accepted the position of examiner of patents in the 
 United States patent office and continued in that position for six )-ears 
 after his admission to the bar. In 1878 he was the sole delegate of the 
 United States to the first international patent congress held at Paris, 
 and in March, 1881, he resigned his position in the patent office to 
 commence the practice of his profession in [Milwaukee, where his prac- 
 tice has been principally in the United States circuit court, as well as 
 the United States circuit courts of appeal throughout the countr}- and 
 the United States supreme court at A\'ashington. 
 
 Naturall)- ]\Ir. Underwood had decided to adopt patent law as his 
 specialty, as by experience and natura-i adaptability no one could be bet- 
 ter cjualified to succeed in the field. It is needless to say to those who 
 have followed his career that results have fully justified his judgment 
 and that' his success has been earned 1)}' the exercise of talents and 
 practical knowledge, plus untiring industry and persistent concentra- 
 tion of all his energies. 
 
 Mr. Underwood joined the Alasonic order in 1873: is a Knight 
 Templar, a thirty-second degree Scottish Rite ]\[ason, and a member 
 of the ^Ivstic Shrine. He is vice president of the Wisconsin society 
 of the Sons of the Revolution. He was married on June 20th, 1883, to 
 Marie Lawson Scott, of ]\Iendota, Illinois. Both he and his wife are 
 members of St. Paul's Episcopal church. There are two children in 
 the family. A\'alter Scott and Isabel. 
 
 XATHAX PERELES. 
 
 Xo citizen who has li\'ed in ]\Iilwaukee for a long term of years and 
 died there has enjoyed stronger traits of character, or been more sin- 
 cerely mourned by all classes, than Nathan Pereles. He was cautious 
 and yet generous in dealings with those whom he trusted. He had what 
 has been called the "business instinct," and yet never was there a more 
 tender hearted man. He was a splendid citizen and grateful to the 
 country in which he had found opportunities for advancement, his pa- 
 triotism finding vent not only in public spirit and public works, but in 
 the education of his sons, who were earl}' imbued with his national 
 
 enthusiasm. 
 39 
 
6i4 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Nathan Pereles was born in the village of Sobotist, Neutra county, 
 Hungary, on April 2, 1824. His decided educational tendencies, 
 evinced at an early age, are accounted for by the fact that his parents,, 
 Herman and Judith Pereles, were teachers and, although remarkably 
 intelligent, were poor in worldly goods. Their son was therefore 
 obliged to enter business when only fifteen years of age, as a clerk 
 in a wholesale indigo and seed house in the city of Prague, Bohemia. 
 He had been taught by his parents, as far as lay in their power, and 
 after he became thus employed attended evening school. In his twenty- 
 first year he had reached the position of chief clerk in the lousiness, 
 and at this point it seeilied that his progress was stayed. 
 
 In 1845, however, Mr. Pereles determined to- better his prospects 
 by emigrating to America. Although he came to New York with let- 
 ters of recommendation to prominent capitalists and business- men, he 
 soon imbibed the independent spirit of the new land, albeit he 'was un- 
 able to. speak its language. He therefore passed by these men of in- 
 fluence, engaged himself to a New Jersey farmer and, when not thus 
 employed, gave his time to the mastering- of the English tongue and 
 the teaching of German and French to the young people of the neigh- 
 borhood. 
 
 Two years thus spent in the east tended to fix the ambition in his 
 mind to move still further toward the west of the United States. In 
 1847-, accordingly, he located in Milwaukee, and, although his economy 
 and industr\- had enabled him to accumulate a small capital, he had 
 the good sense to first obtain employment before he commenced to in- 
 \'estigate the situation with a view of independently establishing him- 
 self. In company with two> friends of his youth, .V. Neustadle and H. 
 Scheftels, he finally opened a grocery store on Chestnut street, near 
 Third. In 1849 the firm was dissolved, and for the succeeding five 
 years he continued such a prosperous business alone that he was able 
 to retire and devote a fair portion of his time tO' studies of the law, 
 to whicli he had been partial for many years. The panic of 1857, how- 
 ever, found his name upon the notes of several friends who w'ere unable 
 to meet payments, and others upon whom he depended failed; so that 
 with the fall of others his entire fortune was swept away. 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 615 
 
 This blow but aroused Mr. Pereles to redoubled energy and he con- 
 tinued the study of law with a definite and a serious purpose. For 
 about a year he was in the office of George W. Chapman, being ad- 
 mitted to practice on September 11, 1857. Soon afterward the firm of 
 Austin (afterward Judge R. N.) & Pereles was formed, which continued 
 for nine years, when D. H. Johnson (now judge of the circuit court) 
 was received into the partnership. The firm thus formed, Austin, 
 Pereles & Johnson, was not dissolved until December, 1868. Failing 
 eyesight, on the part of Mr. Pereles, ca'used by intense and unremitting 
 toil, made this step necessary. Personal care and medical treatment, 
 however, averted the threatened calamity of blindness, and in 1874, 
 ]Mr._Pereles resumed business, taking James M., his son, into partner- 
 ship. Two years thereafter Thomas J. Pereles, another son, who had 
 recently been admitted to the bar, joined the firm, which then became 
 known as Nath. Pereles & Sons. 
 
 Mr. Pereles' life experience and educational training, as well as his 
 inclinations, peculiarly fitted him for the practice of probate, real estate 
 and commercial law. He therefore refused all criminal cases, and it is 
 doubtful if there has ever been a practitioner in the state who so thor- 
 oughly understood his specialty as he. Added to his remarkable knowl- 
 edge were his absolute probity and reliability; so that whether he was 
 managing large estates, or the small money matters of poor citizens, 
 he possessed the complete confidence of his clients. AVhat more can 
 be said of a man than that those with whom he dealt had pure faith in 
 both his ability and his honesty? 
 
 For many years he was prominently identified with such institutions 
 as the Bank of Commerce and the Connecticut Mutual Life Insurance 
 company.- He was a Master Mason, member of the oldest Milwaukee 
 lodge, and at the time of his death was one of the three surviving charter 
 members of the oldest German Odd Fellows lodge in Wisconsin: Teu- 
 tonia, No. 57, of Milwaukee. 
 
 Mr. Pereles' wife was formerly Miss Fannie Teweles, daughter of 
 a Prague merchant, to whom he became engaged before coming to 
 America. Three sons and one daughter survived them. B. F. Pereles, 
 the eldest, is a retired merchant; James M. and Thomas J. are, as 
 
6l6 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Stated, members of the law firm; their daughter, JuHa E., died five years 
 ago. 
 
 Mrs. Pereles was a helpmate to her husband in the truest sense of 
 the word, not only faithful in every trial, but possessing the ability to 
 render the most efficient assistance. She survived her husband thir- 
 teen years, her death occurring on March 31, 1892. 
 
 Mr. Pereles was a man of remarkable strength and vitality and for 
 years accomplished an enormous amount of work. 
 
 A friend, in eulogy of Mr. Pereles, said: "Had he been a banker, 
 he would have made a very successful one. He was very benevolent, 
 of which trait the world knew little. His industry was something won- 
 derful. He was never idle a moment, his vigorous constitution, coupled 
 with his strictly temperate life, enabling him to perform an amount of 
 labor that few professional men could endure, but which he performed 
 with apparent ease. He was entitled to be ranked among the best 
 citizens, one who by industry, economj^ and the practice of correct 
 principles raised himself from poverty to affluence, from obscurity to 
 prominence, and who' has left a record for honesty, business integrity 
 and usefulness to which his children may point with pride." 
 
 Another friend, in eulogizing him, said: "Nathan Pereles was one 
 of God's noblest masterpieces, and at his birth nature stamped him with 
 the seal of greatness, and upon him showered her ^•ery best gifts. She 
 gave him great strength of body, and when she created the palace of 
 his mind and furnished it in regal splendor, upon the throne she placed 
 a brain of matchless power; she gave him love as boundless as the sea, 
 loyalty to friends, good health, a cheerful disposition, tireless energy, 
 rugged honesty, and modesty without timidity; she planted in his 
 heart the love of liberty, the hatred of tyranny, of fraud, of sham; she 
 gave him the art of reading human nature, the power to grapple with 
 great problems and to solve them Satisfactorily. All these were his, 
 while yet he lay in the cradle, ere he recognized his mother's face, or 
 knew the sound of her voice. It wanted but Time, with his magic wand, 
 to draw them out, and the force of circumstances to bring them into 
 action. With these qualities of head, heart and body, failure in life was 
 impossible, and, superbly equipped as he was, he mounted the ladder 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 617 
 
 of success, and on the topmost heights he planted his flag. Success, 
 however, did not make him vain, haughty and overbearing; he did not 
 forget his humble origin, and never was ashamed of it. He had no 
 room in his mind for foolish, parvenu pride, and it never found a lodg- 
 ment in his heart; it was as out of place in his nature as the polar bear 
 is in the tropics, and he was as easy of access tO' the day laborer as to 
 the millionaire, being courteous to all and servile to none." 
 
 His death occurred, not because of disease but as the result of an 
 accident. He was an eager and accomplished horseman, and while 
 taking his usual morning exercise was thrown to the ground. The in- 
 jury developed a tumor which, about a year after the accident, proved 
 fatal, the date of his death being January 28, 1879. 
 
 JA.MES MADISON PERELES. 
 
 James M. Pereles, present senior member of the law firm of Nath. 
 Pereles & Sons, is a native of Milwaukee, having received his prelimi- 
 nary education in the Fourth Ward school and the German and English 
 academy, of the Cream City. At the age of sixteen years, he took a 
 course in the Spencerian Business college. For more than thirty years 
 his father, Nathan Pereles, was one of the most respected and prominent 
 citizens of Milwaukee, both in lousiness and professional circles. While 
 he lived his name stood in the community for absolute sincerity of 
 purpose and honesty of character. He was an ideal father, and the 
 retention of the firm name, "Nath. Pereles & Sons," after his death is 
 a tribute to his memory, prompted by filial affection. This sentiment 
 is shared by the other members of the firm, though not of his kin, 
 Charles F. Hunter and Guy D. Gofif, who believe that it is a synonym of 
 strength, having been the trade mark of the firm since its establish- 
 ment. 
 
 James M. Pereles was admitted into his father's law firm July i, 
 1874, having lately graduated from the law department of the Wisconsin 
 state university, being admitted to the bar on the 18th of the previous 
 month. He has always stood well at the bar; his judgment in all mat- 
 ters connected with probate, commercial, corpoi'ation and real estate 
 law being remarkably broad, clear and exact. He is, in fact, a worthy 
 
6i8 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 successor to his father, both in the professional and the manly sense. 
 Having passed his life in Milwaukee, and received most of his edu- 
 cation in her institutions, Mr. Pereles has naturally taken a deep and 
 active interest in home education, and, with his brother, T. J. Pereles, 
 is a liberal contributor to aid and keep such children, whose parents 
 are unable of their own means to avail themselves of the benefits of the 
 Milwaukee public schools. He was appointed school commissioner on 
 March 27, 1893, to fill the unexpired term of his predecessor, who re- 
 signed, and on May 2, 1894, was elected president of the Milvv'aukee 
 board of education. It was during the first year of his service that he 
 inaugurated the campaign to abolish corporal punishment in the pubHc 
 schools. He introduced the resolution looking to that end on July 3, 
 1893. It was referred to the committee on rules, and recommended for 
 passage, and although Mr. Pereles' object was not completely attained, 
 the subsequent agitation resulted in restricting the punishing power 
 to the principals of the schools. He also served most acceptably as 
 trustee of the public museum and the public library. 
 
 Mr. Pereles was elected president of the Milwaukee public library on 
 January 29, 1897, to fill the vacancy caused by the death of Dr. George 
 Koeppen, late editor of the "Germania," of Milwaukee, and has been 
 re-elected president and trustee for another term of four years on May 
 3, 1898. 
 
 Mr. Pereles was married on September 6, 1874, tO' Miss Jennie 
 Weil of Merton, Waukesha county, this state. Their three children 
 died in infancy. 
 
 Mr. Pereles is a Mason of high degree, being a member of Indepen- 
 dent Lodge No. 80, Wisconsin Chapter No. 7, Ivanhoe Commandery, 
 K. T., No. 24, Wisconsin Consistory, and is also a member of Tripoli 
 Temple, A. A. O. N. M: S. 
 
 THOMAS JEFFERSON PERELES. 
 
 Thomas J. Pereles, of the firm of Nath. Pereles & Sons, was born in 
 Milwaukee and educated in its district and high schools. Graduating 
 from the law department of the Wisconsin state university in 1876, he 
 was admitted to the bar on June 20th, of that year, and on the first of 
 
-^.--VJ2 — Kji_^ 
 
 Nelke &Co.Pi]lli3liers 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 619 
 
 the succeeding month associated himself with his father and brother, 
 James M., to form the partnership of Nath. Pereles & Sons. The found- 
 er and father died in January, 1870. but the old style of the firm is re- 
 tained, and the business which he established is not only held firmly 
 in hand, but has been inci'eased tO' such an extent that from 1881 to 
 1896, three additional members were received into the firm, two 
 (Charles F. Hunter and Guy D. Gofif) of whom remain. As during' the 
 life of Nathan Pereles, the business is virtually confined to the dorhain 
 of probate, commercial, corporation and real estate law, and in this 
 specialty Thomas J. Pereles is unquestioned authority. 
 
 That he has a high reputation for soundness of judgment in com- 
 mercial and financial matters is also evidenced from the fact that though 
 a republican, he has been twice appointed commissioner of the public 
 debt, first on March 14, 1893, ])y ]\[ayor P. J. Somers, a democrat, and 
 for the second term on April 19, 1896, by Mayor William J. Rauschen- 
 berger, a republican. 
 
 Mr. Pereles is companionable, generous and sociable, and has an 
 especial afifection for the old Milwaukee high school from which he 
 graduated, many of whose members are living in the Cream City and 
 Chicago. He has been several terms president of the alumni associa- 
 tion, which is among the strongest organizations of the kind in the 
 northv/est. 
 
 ■ Pie is a meml:)er of the board of directors of the Milwaukee law li- 
 brary. 
 
 The Messrs. Pereles are stanch advocates of free education, and 
 liberal contributors in that direction. It was several years before the 
 fact became public who' the liberal donors were that supplied children 
 of indigent parents with school books free, which enabled them to at- 
 tend the public schools. Such children^ would otherwise have been de- 
 prived of the advantage of free education. According- to- the school 
 board reports, James M. and Thomas J. Pereles have filled the requisi- 
 tion for over twO' thousand children last year. 
 
 Mr. Pereles was married to Miss Nellie Weil, of Merton, Waukesha 
 county, this state, on October 4, 1877. Of their children three' are 
 still living — Nath. Pereles, Jr., David Walter and Jeannette. 
 
620 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Mr. Pereles is a member of Independence lodge No. 80, Calumet 
 Chapter No. 73, Ivanhoe Commandery, K. T., No. 24, Wisconsin Con- 
 sistory and of Tripoli Temple, A. A. O. N. M.- S. 
 
 LEANDER F. FRISBY. 
 
 Leander Franklin Frisby was l>orn June 19^ 1825, at Mesopotamia, 
 Trumbull county, Ohio. His parents, Lucius and Lovina Frisby, were 
 both natives of \^ermont, but removed to Ohio with their family in 1817 
 and settled on a farm. During his early years, Leander worked upon 
 his father's farm in the summer and attended the district school in the 
 winter. At the age of eighteen he learned the trade of a wagon-maker, 
 devoting all his leisure hours while learning his trade to reading and 
 study. When he had Ijecome sufficiently skilled in his trade to earn 
 wages he commenced a course of study at Farmington academy, a 
 school ha\ing considerable local fame at that time. He paid his board 
 and tuition Ijy working at his trade out of school hours. After leaving 
 the academ}- he taught school one winter in order to obtain money to 
 go west. He took passage from Cleveland on the second of September, 
 1846, landing at Sheboygan on the fifth and going thence to Fond du 
 Lac. Within two weeks after his arrival he was taken sick with chills 
 and fever which disabled him until far into the winter. When he had 
 sufficiently reco\'ered to be able to work, the schools were all taken and, 
 l)eing in destitute circumstances, rather than apply tO' friends for aid, 
 he sought an}' honorable work. He worked in a cooper shop diligentlv 
 for two months for his board. Learning, in March, 1847, that he could 
 obtain work at his trade in Beaver Dam, he borrowed fifty cents from a 
 friend and started on foot for that place, a distance of thirty-six miles. 
 He paid his borrowed money for supper and lodging, and starting with- 
 out Ijreakfast the next morning, traversed Rolling Prairie through a 
 deep snow which had fallen the night before, the last ten miles over 
 an unljroken road. He worked at his trade in Beaver Dam and Janes- 
 ville during the spring and summer of 1847. With remunerative em- 
 ployment and returning health, the courage and hopefulness with which 
 he was so largely endowed reasserted themselves and the new western 
 country took on a more inviting aspect. The gloom and despondency 
 
€,^:k...''S^^cyC-C'^ y, y*,^':^--i.^l^^i^~~-7:^ 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 62I 
 
 of the weary days of sickness and liardshii) during the previous fall and 
 winter can only be appreciated l)y those who have had a similar bitter 
 (.'xperience. In after years Mr. Innsby was always ready to lend a help- 
 ing hand to young men starting in life under adverse circumstances. 
 
 In the fall of 1847 he resolved to engage in teaching, in order better 
 to pursue his studies. I fe taught at Prairie Corners, in Walworth 
 county, that winter, and the following year opened an academical school 
 at i-5urlington, Racine county, which he carried on successfully for two 
 years, in the meantime ])ursuing the study of law and spending the sum- 
 mer vacations in the law office of Blair & Lord, at Port Washington, 
 where he was admitted to the bar in the fall of 1850. 
 
 On the first of October, 1850, he located at West Bend, where he 
 continued to live and practice his i^rofes.sion for thirty-one year's. The 
 first three years he taught the village school during the winter, attend- 
 ing to his law business evenings and Saturdays. In the fall of 1853 
 he was elected the first district attorney of the new county of Washing- 
 ton, of which West Bend was made the county seat, and from that time 
 forth he had a successful and lucrative ])ractice. 
 
 in 1854 Mr. Frisby was one of the secretaries of the first republican 
 slate convention held in Wisconsin, at Madison, July 13, of that year. 
 In 1856 he was a])])ointed county judge of Washington county to fill 
 an unexpired term. 1 le was a delegate to, and one of the acting secre- 
 taries of the national convention held in Chicago' in i860, which nomi- 
 nated Abraham Lincoln. In the fall of J 860 he was elected to the state 
 legislature in an intensely democratic district; was a member of that 
 body at the breaking out of the civil war and chairman of the judiciary 
 committee at its special session in June, 1861 . He was twice nominated 
 for Congress by the republicans of the fourth district, in 1868 and again 
 in 1878, and although defeated both times he polled much the largest 
 vote ever cast for a republican in the district, the last time reducing his 
 .opponent's majority to one hundred and thirty-five in a district which 
 usually gave a democratic majority of from five to eleven thousand. 
 
 Mr. Frisby was a delegate to the reiiublican national convention 
 which nominated General Grant in 1872; the same year he was chosen 
 l)resident of the Wisconsin state convention of Universalists and was 
 
622 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 re-elected to the same position in 1873. He received the nomination 
 for attorney general on the republican state ticket in 1873, and although 
 he went down Avith his ticket in the disaster which that year over- 
 whelmed the republican party, he had the satisfaction of receiving over 
 six hundred majority in his home county of Washington, which gave 
 all the democratic candidates except the attorftey general about two 
 thousand majority. In 1881 Judge Frisby was again nominated for 
 attorney geheral on the republican ticket and was elected, running far 
 ahead of his ticket in his own village and county, an evidence which he 
 had received several times before of the esteem in which he was held by 
 those who knew him best. He was re-elected in 1884 and during his 
 first term a constitutional am.endment extended the term of all state 
 officers one year, so that he served as attorney-general for five years. 
 In 1881 Judge Frisby opened a law office in Milwaukee and was re- 
 siding in that city at the time of his death, which occurred after a brief 
 illness, April 19, 1889. 
 
 Mr. Frisby was tall and commanding in figure, affable and pleasing 
 in address and of an eminently social nature. He was married in 1854 
 to Frances E. Rooker, of Burlington, Racine county. AA'isconsin, who 
 survives him, together with two of their five children, a daughter and 
 a son; three children — two grown daughters and a son eighteen years 
 of age — having died of diphtheria at Madison in 1883. 
 
 Mr. Frisby was regarded throughout the state as an able lawyer in 
 all branches of the profession. He was an earnest and successful advo- 
 cate before a jury and had much experience as an equity lawyer. His 
 extraordinary industry in the work of his profession, together with a 
 naturally judicial mind and keen perceptive faculties, placed him in the 
 front rank among the lawyers of his generation in AA^isconsin. 
 
 ROBERT LUSCO:\lBE. 
 
 Robert Luscom1:e, one of the best known of the younger members 
 of the Alilwaukee bar, was born in AA'auwatosa, Milwaukee county. 
 August 7, 1857. He is the youngest of tlu'ee sons of one of Milwau- 
 kee's pioneer Inisiness men, the late Samuel D. Luscombe, who came 
 
■Sl^f^ 
 
 /l 
 
 rr / 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 623 
 
 to Milwaukee from Massachusetts in 1843, and was for many years 
 profitably engaged in the lumber trade. The keen practical ability 
 and resolute energy which marked the career of the father are charac- 
 teristic of the son. Educated in the public schools of Milwaukee, 
 3:oung Luscombe read law for two years in the office of Natli. Pereles 
 & Sons; following the death of Nathan Pereles he entered the office 
 of Joshua Stark, where, in a year, he completed his studies and was 
 admitted to the bar in 1880. In 1882 he was elected supervisor from 
 the fourth ward, on the republican ticket, and one year later was the 
 successful candidate of the same party for city attorney. Mr. Lus- 
 combe's professional services to the city of Milwaukee covered a period 
 of six years, two of which was in the capacity of city attorney and four 
 as assistant. In addition to the performance of the duties usually inci- 
 dent to these offices, he was principally charged \\ith the important 
 duty of revising and consolidating the city -charter and general ordi- 
 nances. His continuance in tljie positions named is the best evidence 
 that his duties were well performed. During this period Mr. Lus- 
 combe was necessarily in attendance on the sessions of the legislature 
 and formed a very extensive and favorable acquaintance with public 
 men throughout the state. 
 
 On retiring from the service of the city he engaged in the general 
 practice of the law and for two years devoted a large portion of his 
 time in protecting the mining interests of his clients in California. At 
 the conclusion of this service Mr. Luscombe became engaged in look- 
 ing after corporate interests and has given these much of his time ever 
 since. His duties have been onerous and his success large. In the 
 discharge of his duties he has made a very large acquaintance, and 
 among them all there are none who are not his personal friends. 
 
 Besides influencing legislation in matters in which he has had a 
 special interest Mr. Luscombe has taken a practical stand in matters 
 looking to the improvement of the public service. He is the author 
 of the law which took the control of the Milwaukee county insane 
 asylum out of the hands of local politicians by authorizing the governor 
 to appoint a majority of the trustees of that institution. As a matter of 
 
624 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 history it may also be stated that he was the author of the bill pro- 
 viding for compulsory education in the English language which be- 
 came known the country over as the "Bennett law." This was pre- 
 pared at the instance of the tenth ward district school association of 
 Milwaukee. In its political effect no act of the legislature of Wisconsin 
 ever wrought a more marked revolution. » 
 
 In his political views Mr. Luscombe has been in harmony with 
 the republican party and has stoutly and efficiently championed its 
 measures. 
 
 JAMES GREELEY FLANDERS. 
 
 Mr. Flanders was born in New London, New Hampshire, December 
 13, 1844. Ii^ 1848 he became a resident of Milwaukee and has con- 
 tinued to be such. Until 1858 he attended the schools of that city. 
 The next step in his education was taken at Phillips (Exeter) academy 
 in his native state, from which institution he was graduated in 1861. 
 In that year he was admitted to Yale college, but did not enter there 
 until two years later. In the intervening period he was engaged in 
 teaching school in Milwaukee. The course in Yale was entered upon 
 in 1863 and finished, with honors, four years later. 
 
 Mr. Flanders' inclination to the law is probably inherited. His 
 grandfather, James Flanders (1740- 1820) was a member of the New 
 Hampshire bar and a legislator of that state, who performed well every 
 duty intrusted to him and maintained his character as a brave and able 
 man among the heroes of that period. Walter P. Flanders, the father 
 of James G., was also a member of that bar. He did not, however, re- 
 sume practice after becoming a resident of Milwaukee in 1848, but 
 became largely interested in real estate and in enterprises looking to 
 the development of that city and the surrounding county. The time of 
 his- arrival in the west saw the opening of the movement which resulted 
 in the building of numerous lines of railways. Entering into the spirit 
 which actuated the promoters of these various enterprises, Mr. Flanders 
 became prominently identified with the Milwaukee & Mississippi Rail- 
 way company, serving as its first treasurer. Mrs. Flanders, the mother 
 of James G., was a native of Newburyport, Massachusetts, her maiden 
 
HelKe S.Co,Billislia's, 
 
 ^"S^mUlA ^.miM64,^^y^ 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 625 
 
 name being Susan Everett Greeley. She was of a home-loving dispo- 
 sition, and domestic in her tastes; enjoyed the sincere respect of her 
 large circle of acquaintances, and performed well her part as wife and 
 mother. 
 
 James G. Flanders" general education, as we have seen, was obtained 
 at institutions of the highest standing. He was cjuite as solicitous con- 
 cerning the thoroughness of his professional education as about the 
 former. He entered upon the stud\- of law in the office of Emmons & 
 Van D)'ke, of Milwaukee, then lawyers of high standing, and now men 
 whose professional reputations are established beyond question. The 
 learning and experience secured here were supplemented by a full 
 course in the college of law of Columbia university. After being gradu- 
 ated there, Mr. Flanders was admitted to the bar of New York by the 
 supreme court. 
 
 In Jul}-, 1869, the subject of this biography entered upon the practice 
 of his profession in Milwaukee as a partner of DeW'itt Davis, the firm 
 name being Davis & Flanders. Later, A. R. R. Butler became a mem- 
 ber of the firm, the style of which A\as changed to Butler, Davis & 
 Flanders. This strong combination continued until 1877, when the 
 junior member withdrew to organize the firm of Flanders & Bottum 
 (E. H.). In July, 1888, after the appointment of James G. Jenkins to 
 the United States district judgeship, the firm of which he was the senior 
 member united with Messrs. Flanders & Bottum to constitute the part- 
 nership of Winkler, Flanders, Smith, Bottum & Vilas. 
 
 W'e ha\e, then, in Mr. Flanders the'antecedent of two generations 
 bred to the law; his thorough general 'and professional education and 
 association, as student and practitioner, with men of high general and 
 professional attainments. In addition, the result of years of patient 
 industry, the consecjuent accretion to a receptive, strong, agile and 
 practical mind, and the training in orator}-, the skill in the trial of causes 
 and the character which has come out of these, strengthened by tests 
 and established beyond successful assault. 
 
 Under these conditions, what else might be expected than the suc- 
 cessful and accomplished lawyer? What but the advocate, whose skill 
 is admitted because hunrlreds of times demonstrated in contests with 
 
626 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 the best professional talent in the state and in adjoining states? What 
 but loyalty tO' causes entrusted tO' his care, loyalty to the courts in 
 which these causes have been tried, and to the law? In all these re- 
 spects the character and attainments of Mr. Flanders are verities in 
 the history of Wisconsin's bar. As a member of one of the strongest 
 firms in the state he has been engaged in the trial of many strongly 
 cbntested and important cases, both civil and criminal. Space forbids 
 mention of more than a few of these. In 1889 he assisted the district 
 attorney of Ashland county in the prosecution of the assistant cashier 
 of the Hurley Iron Exchange bank, Phelps Perrin, and E. W. Baker, 
 on the charge of the larceny of forty thousand dollars. In a series of five 
 trials, each lasting from three to five weeks, Perrin was convicted and 
 was finally sentenced to five years' imprisonment. Baker was twice 
 convicted, the first conviction having been set aside by the supreme 
 court. He was also sentenced to five years' imprisonment. The Mil- 
 waukee Dust Collector case, involving the titles to patents worth some 
 two hundred and fifty thousand dollars, was tried by him for the plaint- 
 ifif. During the progress of the litigation a very large sum of money 
 was paid into court as royalties by the defendants. He has also suc- 
 cessfully defended the city of Ironwood, Michigan, in the United States 
 circuit court for the northern district of Michigan, in a case involving 
 the validity of one hundred and fifty thousand dollars of its bonds. 
 The judgment there obtained has been affirmed in the federal court of 
 appeals. 
 
 Mr. Flanders has recognized that every member of society owes it 
 the special duty of devoting some portion of his time and talents to the 
 advancement of the public good by discharging such official duties as 
 his fellow-citizens may call him to perform. Accordingly he has given 
 of his time and ability as a member of the school board of the first 
 ward, ha,ving served during the years 1875-1877. In the latter year 
 he also served as a member of the popular branch of the state legis- 
 lature. It was on the floor of that body that the writer first heard Mr. 
 Flanders speak. The impression then made of his ability as an orator 
 is not yet effaced. A fine personal appearance was supplemented by a 
 clear, resonant voice, an articulation that was charming, a vocabulary 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 627 
 
 that was rich and responsive to the demand, and matter that was 
 pertinent to the subject under discussion. Twenty years of culture and 
 experience have added much to the large capital with which he was then 
 endowed and have produced the James G. Flanders of to-day. 
 
 In political affairs Mr. Flanders has usually acted with the demo- 
 cratic party. In 1896 he was a delegate at large to the national demo- 
 cratic convention. His \'iews of public affairs did not coincide with 
 the action of that convention and he declined to be bound by it. 
 Subsequently he was a delegate at large to the convention of gold 
 democrats at Indianapolis. 
 
 Though a member of the Milwaukee, Country and Deutscher clubs, 
 ]\Ir. Flanders' engagements and home attachment do not permit him 
 to give much time to social affairs, independently of those in which his 
 family are participants. 
 
 His religious affiliations are with the Episcopal church, and he is a 
 regular attendant upon the services at St. Paul's. 
 
 Mrs. Flanders, formerly Mary C. Haney, is the daughter of Robert 
 Haney, one of the early hardware merchants and pioneers of Mil- 
 waukee. Mr. Flanders became united to her in marriage June 18, 
 1873. They have three children — Charlotte Bartlett, Kent and 
 Roger Y. 
 
 GEORGE PECKHAM MILLER. 
 
 George P. ?\Iiller, the second son of Benjamin Kurtz Miller* and 
 Isabella (Peckham) ]\Iiller, was born in ^Milwaukee, Wisconsin, on Oc- 
 tober 12, 1858. He is a grandson of Judge Andrew G. Miller, who 
 was federal judge in Wisconsin from 1838 to 1872, and of George AV. 
 Peckham, who was a prominent lawyer of his day of Albany, New 
 York — a brother and a partner of Rufus AV Peckham, for many years 
 one of the judges of the court of appeals of the state of New York. He 
 is a second cousin of Rufus W. Peckham, one of the present justices of 
 the supreme court of the United States, and of his briUiant brother, 
 Wheeler H. Peckham, nominated a justice of the same court by Presi- 
 
 *Since the first forms of this volume have gone to press Mr. Miller's death has 
 occurred (September 12, 1898) at his home in Milwaulcee. A biography of the de- 
 ceased will be found on page 428. 
 
628 HISTORY OF THE BENCH AND BAR "OF WISCONSIN. 
 
 dent Cleveland. As his father, both grandfathers and many other 
 relatives have been lawyers and judges, he may properly be said to 
 belong to a legal family. He certainly was borii and reared in a legal 
 atmosphere and probably inherited his legal tendencies, if not his 
 talents. 
 
 George P Miller received a thorough mental training. His father, 
 who had always been a successful lawyer and well to do, spared neither 
 pains nor money on his education. He was first carefully drilled in the 
 primary and academic branches, after wliich he enjoyed a complete class- 
 ical course at Pennsylvania college, Gettysburg, from which institution 
 he was graduated in 1877. Upon his graduation he intended going 
 into business and the late Alexander Mitchell promised him a position 
 in the Wisconsin Marine & Fire Insurance Company bank as soon as 
 its new banking building, then in course of construction, was com- 
 pleted. In the meantime his father proposed a trip to Europe and a 
 term at a German universit}-. The effect of this European trip and a 
 few weeks at a German university had a great influence on the entire 
 life of this young man, because the}- resulted in his determining to study 
 law. His father suggested that he continue his studies in Germany, 
 wliich he did, studying law and the philosophy of law at the German 
 universities at Gottingen and Breslau from 1877 to 1880, when he took 
 the degree of Juris utriusque Doctor, at Gottingen. He then re- 
 turned to Milwaukee and entered the office of Finches, Lynde & Miller, 
 of which his father was a memljer, and in the following vear was ad- 
 mitted to the bar at Milwaukee. 
 
 From the very first his fatlier's partner, the brilliant trial law}-er. 
 Henry M. Finch, was interested in him and allowed him to assist him 
 at every trial in court and in all professional matters in the office until 
 his death in 1883. The subject of our sketch thus enjoyed excep- 
 tional experience and training and I\Ir. Finch remained his warm 
 friend and did everything to ad^■ance his interests and position in the 
 legal fraternity. At this time the law firm of Finches, Lynde & Miller 
 enjoyed in the highest degree the respect and confidence of the commu- 
 nity, and its large and wealthy clientage. In three years, 1883 to 1885, 
 Henry ?il. Finch, Asahel Finch, and Wilham P. Lynde died, leaving 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 629 
 
 Benjamin Kurtz Miller, who had devoted himself to the office and coun- 
 seling- department of the business of the fii'm, as the sole surviving 
 partner. These deaths forced George P. Miller and his brother, Ben- 
 jamin Kurtz Miller, Jr., to the front, and at once they were entrusted 
 with some of the most important litigation in the state. Many lawyers 
 doubted whether these young men, one twenty-eight and the other but 
 twenty-six years of age, could hold the large and profitable business of 
 Finches, Lynde & Miller. With the aid of their father, who was a man 
 of great ability, they not only kept the business of Finches, Lynde & 
 Miller, but increased it. They continued to maintain the same high 
 standards in morality and bvisiness methods adopted by their father 
 and the other members of the firm of Finches, Lynde & Miller. Their 
 professional engagements so increased that in 1890 they admitted 
 George H. Noyes and in 1895 George H. Wahl into the partnership, 
 and the name of the firm was changed to Miller. Noyes, Miller & Wahl. 
 
 The most prominent characteristic of George P. Miller is that he 
 combines the practical sense of a business man with the knowledge and 
 experience of the lawyer. He has been successful in both respects, and 
 that he is engaged as counsel by many of the great corporations and in 
 much of the heavy litigation, shows how he is regarded by the public. 
 He never regards a lawsuit as anything but a means to an end and 
 that every controversy should be regarded as a question of finance, so 
 that a favorable compromise is to be preferred to an expensive litiga- 
 tion. A lawsuit with him is a battle. Its object, not the battle itself, 
 but its financial results; not the settlement of abstractions, but secur- 
 ing financial returns as speedily and cheaply as possible; not absolute 
 justice but by settlement or litigation the largest financial return to 
 ,the client. 
 
 Mr. Miller is a democrat by conviction and inheritance. He is con- 
 nected with many clubs and societies. Pie was married in 1887 to 
 Laura A. Chapman, daughter of T. A. Chapman, Milwaukee's great 
 merchant, and this union has been blessed by two daughters. 
 
 In conclusion the writer cannot do better than to cjuote the words 
 
 of one who has long known Mr. Miller as a man and a practitioner: 
 
 "Although still a young man, he has already attained a leading 
 40 
 
630 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 place at the bar. He is endowed with keen and exact powers of 
 analysis and great readiness in devising means to ends. In the solu- 
 tion of legal problems, his methods are those of the German university 
 and include not only the critical examination of current authorities, 
 but also an historical investigation into the development of the law. 
 
 "Mr. Miller's exposition of legal probleme and complicated ques- 
 tions of fact is remarkable in its clearness; he has the power of arrang- 
 ing and stating involved facts and figures so clearly that their relations 
 cannot be misunderstood. Within the last few years Mr. Miller's prin- 
 cipal work has been done within the equity jurisdiction, and he was 
 particularly prominent in the litigation involved by the Northern Pacific 
 railroad receivership. Among' other prominent cases in which Mr. 
 Miller has taken an active part are those regarding the validity of the 
 bonds of the city of Watertown and of the city of Milwaukee." 
 
 BENJAMIN KURTZ MILLER, JR. 
 
 B. K. Miller, Jr., the eldest son of Benjamin Kurtz Miller and Isa- 
 bella (Peckham) Miller, was born at Milwaukee, Wisconsin, on June 6, 
 1857. He attended as a youth the best schools of his native city and was 
 graduated in 1877 from Penns)dvania college, Gettysburg, Pennsylvania. 
 He returned to Milwaukee and studied law in the office of Finches, Lynde 
 & Miller and was admitted to the bar in 1880. After the death of his 
 father's partners in 1885 he and his brother, George P. Miller, became 
 members of the firm of Finches, Lynde & Miller, who, with their father, 
 constituted the sole members of that firm. The fact that the business of 
 the firm was increased after 1885 is sufficient evidence of the ability of 
 the subject of this sketch. The business of the firm became so large that 
 in 1890, George H. Noyes, and in 1895 George H. Wahl were admitted 
 as members of the firm. 
 
 B. K. Miller, Jr., is not only a good lawyer, but is literary in his 
 tastes. His intellectual interest is not confined to legal C[uestions, but 
 embraces all philosophical and scientific subjects. It can be said there 
 is no branch of knowledge in which he is not somewhat informed and is 
 considered one of the best informed men in Milwaukee on general as 
 Avell as philosophical subjects. He owns the largest and best selected 
 
HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 library on political economy in the state. For the last ten years he has 
 taken a vacation each second year and visited every known country in the 
 world. He is a great traveler and is as much at home in China, or in 
 South America, as in his own country or Europe. He is a man of very 
 quick perceptions, generous and a good business man. He is unmar- 
 ried. In politics he is independent. 
 
 MISCELLANEOUS NOTES. 
 
 The following mention of some of the members of the Milwaukee 
 bar who, after spending a few years in legal practice as such, removed 
 and gained honorable distinction elsewhere, is from chapter 32 of the 
 History of Milwaukee County, that chapter being from the pen of 
 Joshua Stark: 
 
 Burr W. Griswold, who' canje from New York in 1849 ^"^ was for 
 three or four years associated with Francis Randall, returned to New 
 York about 1854 and was for years a member of the distinguished law 
 firm of Blatchford, Seward & Griswold. 
 
 Orlando L. Stewart tried the west a few years, beginning with 1850. 
 In 1856 he was associated with Francis Bloodgood, practicing as the 
 firm of Stewart & Bloodgood. Later he returned to New York, where 
 his career has since been highly successful. 
 
 Wheeler H. Peckham, of New York, was law partner with Mr. 
 Bloodgood in 1859. After a brief residence in Milwaukee he too re- 
 moved to New York, where his distinguished professional labors as 
 prosecutor of the Tweed ring, and in many other celebrated cases, have 
 given him national fame. 
 
 Wallace Pratt came to the Milwaukee bar early in 1857. In 1858 he 
 was associated as partner with Ephraim Mariner. Early in 1859 he be- 
 came a partner with John W. Gary, and a few years later was a member 
 of the law firm of Ogden & Pratt. About 1870 he removed to Kansas 
 City, and there becanre prominent and successful as attorney for railroad 
 and other corporations. 
 
 Nelson C. Gridley, after practicing law in Milwaukee several years, 
 being for a time associated with Matt. H. Carpenter, removed to Chi- 
 cago, where he has since been engaged in successful practice as a 
 patent lawyer. 
 
632 HISTORY OF THE BENCH AND BAR OF WISCONSIN. 
 
 Edwin L. Buttrick practiced law in Milwaukee from 1855 to 1862 
 and was a member of the firm of Butler, Buttrick & Cottrill. He en- 
 tered the army in the fall of 1862' as lieutenant colonel of the twenty- 
 fourth Wisconsin, and was later colonel of the thirty-ninth regiment. 
 After the war he took up his residence in West Virginia, where he has 
 been prominent as a lawyer and a citizen. • 
 
 John B. D. Cogswell was a member of the Milwaukee bar from De- 
 cember, 1857, for several years. His ability as a lawyer and as a public 
 speaker gave him, during the few years of his residence a prominent 
 position at the bar and in business and political circles. During the 
 years 1862 to 1867 he held the office of United States district attorney. 
 Not long after he returned to Massachusetts, where he had formerly 
 resided, and has since served in the legislature of that commonwealth. 
 
 Cushman K. Davis, now serving his second term in the United 
 States senate, representing Minnesota, read law with the firm of Butler 
 & Winkler in Milwaukee, and was there admitted to the bar and began 
 practice, removing from there to St. Paul about 1865. 
 
 James MacAllister, born and educated in Glasgow, Scotland, studied 
 law at the Albany law school, and after spending several years as prin- 
 cipal of one of the public schools of Milwaukee entered the legal profes- 
 sion in February, 1865, and continued in practice for nearly ten years. 
 A decided preference for literary pursuits led him, in 1874, to accept the 
 position of superintendent of schools, which he held until 1883, with the 
 exception of an interval of two years. In 1883 he was selected by the 
 board of education of Philadelphia to superintend the public schools of 
 that city, and after several years' service in that position he was hon- 
 ored by appointment to the position of president of the Drexel institute 
 of that city, which position he now holds. 
 
 Henry H. Markham became a member of the Milwaukee bar in 
 February, 1867, and practiced law there with his brother, George C. 
 Markham, until 1878, giving special attention to causes in admiralty 
 with marked success. For necessftry change of climate he then re- 
 moved to Pasadena, California, and has since been honored with a term 
 as governor of that state and also a term as representative of his dis- 
 trict in Congress. 
 
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