USA > Wisconsin > Milwaukee County > Milwaukee > History of Milwaukee from its first settlement to the year 1895 > Part 37
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The laws of Michigan-of which Wisconsin had been a part-were extended over the new terri- tory, subject to be modified by its legislature, and suits, civil and criminal, pending and undeter- mined on the 3rd of July, 1836, in the County Courts of the several counties of Michigan terri- tory, included within the territory of Wisconsin, were transferred by the organic act to the district courts thereby established for the districts includ- ing such counties, to be there tried and determined.
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ORIGIN AND DEVELOPMENT OF THE JUDICIARY SYSTEM.
At the first session of the Legislative Assembly of Wisconsin territory, held at Belmont, in Oeto- ber, 1836, the counties of Brown and Milwaukee -then including virtually the eastern half of the present State of Wisconsin-were constituted one of the three judicial districts, and William C. Frazer, one of the judges for the territory -- then lately appointed by President Van Buren -was designated to perform distriet duties in that district, and required to hold annually two terms of the District Court in each eounty of the district.
Solomon Juneau and Morgan L. Martin, the original proprietors of the town of Milwaukee- east of the Milwaukee river-had, in 1836, erected for the use of the courts of the county a large and convenient two-story frame building upon the site of the present court-house, and presented it to the county. The gift was gratefully accepted, and the building served its original purpose, without en- largement or alteration, until it was displaced by the present statelier, but ill-designed structure.
Judge Frazer opened his first term of the Dis- trict 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 intem- perate habits, and his health, both physical and mental, had become seriously impaired by ex- eesses. He was sixty years old, and nervous, im- patient, arbitrary and often harsh, overbearing and offensive in his judicial conduct and in his treatment of the members of the bar. The few lawyers who appeared before the judge at his first term were nearly all young men, but men of un- usual ability and preparation for professional life. Leaders among them were Jonathan E. Arnold of Rhode Island, a graduate of Brown University, and John H. Tweedy of Massachusetts, who had been graduated from Yale College. Both of these gentlemen had taken up their residence in Milwau- kee 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 feeling of disgust, and to induce the bar and many citizens to exert themselves to seeure his removal. A committee was appointed to wait upon him and request his resignation, which he refused in offensive terms. The winter following
was spent by the judge at his home in Pennsyl- vania; but in June, 1838, he reappeared and held the term. Little business was done. There was no confidenee in the court or in judicial proceedings as condueted by the presiding judge. In Septem- ber, 1838, the report beeame current that Judge Frazer, in a eard addressed to the publisher of a Green Bay paper, had announced his intention to resign his office, to take effect October 2nd, "ae- cording to a determination long since made."
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, returned 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. Ile was taken on shore in a dying condition, and on the 18th of October, 1838, died.
Many stories are told of eccentrie orders and judgments of Judge Frazer which, if authentic, would fully justify the charge of gross unfitness for the office he held. The records of the court while he was judge show no trace of these singu- lar proceedings. On the contrary, they indicate a striet regard for judicial forms and proprieties. This is perhaps largely due to the fortunate eir- cumstanee that the clerk who kept its records during this time-Mr. Cyrus Hawley-was a man of superior intelligence and earefulness in the dis- charge of his duties.
A somewhat peculiar judgment entered by Judge Frazer at his first term, in a eriminal case, would seem to indicate special solieitude for the rights of the aeeused. An Indian named " Ashe- eoboma." was tried for murder, convieted and senteneed by the judge to be executed on the 1st of September, 1837. Asheeoboma and another were next tried for an assault with intent to kill, and both were convieted. 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 earefully provided against double punishment by adding as part of the sentence, "The latter sentenee to go into effeet in the ease of Ashecoboma if he is
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HISTORY OF MILWAUKEE.
pardoned on the sentence previously pronounced for murder by His Excellency, the Governor."
Early in November, 1838, Andrew Galbraith Miller of Pennsylvania, an utter stranger to the Milwaukee colony, was appointed by the Presi- dent to succeed Judge Frazer. Not a little solici- tude was expressed as to the character of the new incumbent, in view of the unhappy experience with the late judge. Soon after receiving his ap- pointment, Judge Miller, with characteristic en- ergy, undertook the difficult journey of a thousand miles to the field of his new labors. On the 10th of December, 1838, he took the oath of office at Milwaukee, too late, however, to hold the fall term of court in his district. After a brief visit in Milwaukee he returned home, having announced his intention to become a permanent resident of the town. This announcement gave the liveliest satisfaction, as his dignified, urbane and gentle- manly bearing had made a very favorable impres- sion. On the 13th of May, 1839, Judge Miller arrived with his family and established his home in Milwaukee, where he continued to reside until his death. He was at once overwhelmed with official labor. During the three years since the organization of the territory business requiring judicial action had rapidly increased. The wild and reckless speculation of 1836, followed by the financial crash of 1837, had plunged all classes into serious difficulties, from which there seemed little hope of relief except through the courts. Until the June term of 1839 Milwaukee county had been vir-
tually without a court of justice, and when Judge Miller entered upon his duties at that term he found several hundred cases pending and parties impa- tiently awaiting the ministry of justice under the forms of law. He was a man of large frame, of ro- bust constitution, of cultivated intellect, untiring in industry, methodical in habits and conscientiously devoted to official duty. During the ten years of his service as district judge of the territory, ending with the organization of the state, his labors were arduous and unremitting, but were performed with singular ability and carefulness and with the most patient attention to every detail of judicial re- sponsibility, as the records of the court during that period abundantly show. The administration of the bankrupt law of 1841 devolved largely upon him and added much to his official burdens.
When Wisconsin was admitted into the Union as a state in June, 1848, it was made by the act of
Congress one judicial district of the United States, to be called the district of Wisconsin. A District Court was required to be held therein, to consist of one judge, who should reside in the district and be called the district judge. The district was not at- tached to, or made part of, any federal circuit; but the act provided that the district judge should have and exercise the same jurisdiction and powers in his district vested by law in the circuit courts of the United States-except jurisdiction of appeals and writs of error-its decisions being subject to review only by the Supreme Court of the United States. Judge Miller was appointed district judge of the new district, and for fourteen years dis- charged all the functions of the federal judiciary in the state. His decisions during all this time were virtually the end of the law for litigants, as the difficulties and expense of appeal to the only court competent to correct his errors, sitting at the national capital, were in most cases insuperable. The business of the court embraced the whole range of federal jurisdiction, legal and equitable, including patent causes, cases in admiralty and bankruptcy, and all actions and prosecutions aris- ing under the revenue and criminal statutes of the United States. The large and nearly abso- lute power vested in the district judge could not fail to excite the jealousy of lawyers and their clients, especially those living at a distance from the seat of justice. This feeling was greatly in- creased by the fact that Eastern merchants found the court and its process and officers efficient help in enforcing payment of their demands by delinquent debtors. It is just to say that during this period the great powers of the court were exercised with signal ability and a sincere pur- pose and effort to do equal and exact justice within the rules and limitations of the law. The court had to deal with questions of the gravest importance. In 1854, an effort to enforce the odious Fugitive Slave Act of 1850, led to a series of proceedings in the federal courts and the courts of the state which assumed national im- portance and contributed not a little to pre- paring the way for the conflict of arms be- tween the free and the slave states in 1861. A negro named Glover, claimed by one Gar- land of Missouri to be his fugitive slave, was arrested by a United States deputy marshal at his home in Raeine county, under process is- sued by the district judge, and was brought to
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ORIGIN AND DEVELOPMENT OF THE JUDICIARY SYSTEM.
the jail of Milwaukee county. The news of the arrest quickly spread, and it was reported that the negro had been roughly beaten by his captors, and might be turned over to the supposed owner and hurried out of the state without a public ex- amination, a crowd of excited and sympathetic citizens was drawn together in the court-house park by the efforts of two or three men-Sherman M. Booth and John Rycraft being the most act- ive- and after listening to brief addresses, pro- ceeded to break into the county jail and liberate Glover and aid his escape from United States ter- ritory. The chief rescuers, Booth and Rycraft, were prosecuted criminally in the District Court for violation of the act of Congress for the rendi- tion of fugitive slaves, and were both convicted. These trials excited the most intense interest, and were attended by crowds of citizens. The feel- ing in the city against the law was very strong, and most of those who thronged the court-room daily were in warm sympathy with the accused. Judge Miller presided with calm dignity and un- flinching firmness and courage. He believed the law to be valid and his duty to enforce it plain under his official oath, whatever he might think of its wisdom or abstract justice. In these cases and others which grew out of the same rescue Judge Miller exhibited in a remarkable degree the qualities of firmness and unswerving devotion to duty as he saw and apprehended it, which always characterized him.
In 1859 bills were filed in the District Court for the foreclosure of trust mortgages upon the road, property and franchises of the LaCrosse & Mil- waukee railroad company, including the lands granted by Congress to the state and by the state to that company in 1856, to aid in the construc- tion of portions of the road. These suits were the beginning of a prolonged struggle for the pos- session and title of the mortgaged property, in which every effort which the talent and skill of very able lawyers could suggest was employed to secure advantage, and, if possible, victory. Novel and intricate questions were pressed upon the court for solution. The management of the road by the court through its receiver, and the adjustment of conflicting equities between contesting claim- ants were matters of the gravest difficulty, and little help could be derived from the practice of other courts in like cases, for precedents at that day were few. Here the calm, deliberate and un-
ruffled temper of the presiding judge was main- tained throughout the contest. ITis decisions were often bitterly assailed. Appeal after appeal was taken to the Supreme Court, but he was rarely re- versed. Feeling ran so high at one time that one of the parties interested attempted to set on foot impeachment proceedings. The effort, however, utterly failed for lack of the slightest evidence of improper conduct or unworthy motive in any offi- cial act of the judge.
By an act of July 15, 1862, Congress established a Circuit Court for the district of Wisconsin, mak- ing the district part of the Eighth Judicial Circuit, and transferred to it all actions pending in the District Court which might have been brought or could have been originally cognizable in a Circuit Court. From that time the District Court was deprived of all circuit-court powers.
In February, 1863, by a change in the law, the district was made a part of the Ninth Judicial Circuit, and Hon. Samuel F. Miller of Iowa, one of the justices of the Supreme Court of the United States, was assigned to circuit-court duty in the district. July 23, 1866, the district was made part of the Seventh Judicial Circuit, to which it is now attached, and Mr. Justice Miller gave place to Justice David Davis of Illinois.
An act of Congress, passed June 29, 1870, di- vided the state into the Eastern and Western dis- tricts, and the Eastern district, with the seat of justice at Milwaukee, was reduced to its present limits.
Under the act of Congress of April 10, 1869, providing for the appointment of separate judges of the circuit courts, Hon. Thomas Drummond of Chicago became the first circuit judge of the Seventh Circuit, which office he held until his re- tirement at the age of seventy-five, in 1884. He was succeeded by Hon. Walter Q. Gresham of Indiana, who resigned in February, 1893, to enter the cabinet of President Cleveland as Secretary of State.
Judge Miller continued in active and uninter- rupted service until January 1, 1874, when he re- tired at the advanced age of seventy-two years, having been upon the bench thirty-five consecutive years as territorial and district judge. Although apparently in vigorous health at the time of his retirement, he survived but a few months. He was succeeded by Hon. James H. Ilowe of Ke- nosha, a nephew of Senator Timothy O. Howe.
196
HISTORY OF MILWAUKEE.
Judge Howe was born and educated in Maine, was admitted to the bar at Green Bay in 1848, and practiced his profession there several years. In 1859 he was elected attorney-general of the state and served from January 2, 1860, until October 7, 1862, when he accepted the command of the Thirty-second Regiment Wisconsin Volun- teer Infantry, and went into active military serv- ice. For several years before his appointment as district judge he had been general solicitor of the Chicago & Northwestern Railway Company, hav- ing his office in Chicago and his residence in Keno- sha. It was understood that he accepted the judge- ship as a relief from the strain of professional labor, but judicial life and duties proved less congenial than he expected, and he resigned after a service of little more than a year, resuming the active practice of his profession. Judge Howe was a cour- teous gentleman and a sound and able lawyer.
On the 10th of February, 1875, Hon. Charles E. Dyer of Racine was appointed to succeed Judge Howe. He was a native of western New York, but became a resident of Wisconsin at a very early age. He entered upon the practice of the law at Racine in 1859, and very soon advanced to the front rank of his profession. He assumed the judicial office at the age of forty, with not a little hesitation, so exalted was his estimate of the dignity and responsibility of the station he was called upon to fill. The selection was a most happy one. To a mind cultivated and enriched by years of close study of the principles of our jurisprudence, and disciplined in the school of active and successful practice, he added great in- dustry, judicial fairness and impartiality, a genial and patient temper and a keen sense of right and justice. He speedily won, and held to the end of his service, the respect and confidence of the bar of the district in a remarkable degree. In May of 1888, Judge Dyer resigned to accept the office of General Solicitor of the North western Mutual Life Insurance Company of Milwaukee, which office he still holds. For thirteen years he had struggled to sustain aud educate his family upon the meager salary of his office, in the hope that it might be increased to a sum approaching a just reward for the arduous service required and faithfully rendered. His retirement at last in the prime of life, enforced by the unwise parsimony of Congress, was a source of profound regret to the bar and people of the district. This
regret was much relieved by the selection by President Cleveland of Hon. James G. Jenkins of Milwaukee as his successor, a lawyer of more thau thirty years' practice and eminent for his learning and professional attainments. A grand- son of Hon. Reuben H. Walworth, formerly chan- cellor of New York, and educated and raised to the bar in the city of New York, Judge Jenkins came to Milwaukee in 1857, at the age of twenty- three, well equipped by native endowment and early training for the successful career on which he entered. Soon after he was associated for a short time with Hon. Edward G. Ryan and later with Hon. Jason Downer, both of which gentlemen were afterward elevated to the Supreme bench of the state. He was elected to the office of city attorney in 1863, and discharged its duties so ably that he was continued in office by repeated re-elec- tions for eight years. In 1879 he was selected as the candidate of his party, then in a hopeless minor- ity, for the office of governor of Wisconsin, and in several speeches delivered during the political campaign, discussed public issues in a spirit so manly and dignified as to add greatly to his repu- tation as a lawyer and a citizen. The career of Judge Jenkins at the bar was highly successful. He was an able and astute lawyer, thorough in investigation, fertile in resources, and forcible and eloquent in argument before the court and in address to juries. His diction was graceful and his style finished and pleasing. Coming to the bench ripe in years, experience and culture, he was quickly recognized as an able, dignified and ac- complished jurist, admirably fitted for the dis- charge of judicial functions. Ill health limited his activity during the first three years, yet he had so established himself in the respect and favor of the bar, not only in his own city and district, but in Chicago, where he had often been called to render judicial service, that his promotion to the rank of circuit judge of the Seventh judicial cir- cuit in March, 1893, was received in both cities with genuine satisfaction by the profession and the public at large. The vacancy thus created in the office of district judge was filled by the ap- pointment of William H. Seaman of Sheboygan, a lawyer of marked ability and ripe experience, gained by many years of close application to the practice of the law.
With the organization of the state government came a radical change in the judicial system.
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197
ORIGIN AND DEVELOPMENT OF THE JUDICIARY SYSTEM.
By the Constitution of Wisconsin, which took effect the first Monday of June, 1848, it was pro- vided that the judicial power of the state, both as to matters of law and equity, should be vested in a Supreme Court, Circuit Courts, Courts of Pro- bate, and Justices of the Peace. The legislature was also empowered to vest such jurisdiction as should be deemed necessary in municipal courts, and to establish inferior courts in the several counties, with limited civil and criminal jurisdic- tion ; provided, that the jurisdiction vested in such municipal courts should not exceed that of the Circuit Court in the same municipalities, and that the judges of such municipal and inferior courts should be elected by the qualified electors of their respective jurisdictions for terms not exceeding in length the term of judges of the Circuit Court.
The constitution divided the state into five judicial circuits, subject to be increased or dimin- ished in number by the legislature, for each of which circuits a judge should be chosen by the qualified electors therein. The five circuit judges first elected were to be classified so that their terms should expire respectively in two, three, four, five and six years, and circuit judges were thereafter to be elected for six years. For five years, and thereafter until the legislature should otherwise provide, the judges of the several cir- cuits were constituted the Supreme Court. The legislature was empowered, if it should think it expedient or necessary, to provide by law for the organization, after five years, of a separate Supreme Court, to consist of one chief justice and two associate justices, elected by the qualified electors of the state, and so classified that but one of them should go out of office at a time, and their term of office should be the same as provided for the judges of the Circuit Court. The Supreme Court was given a general su- perintending control over all inferior courts, and power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original and remedial writs, and to hear and determine the same. With these exceptions, its jurisdiction was declared to be appelate only. The Circuit Courts were given original jurisdiction in all matters, civil and criminal, within the state, not excepted in the constitution and not there- after prohibited by law; and appellate jurisdiction over all inferior courts and tribunals and a super- visory control over the same, with power to issue
the writs above named and all other writs neces- sary to carry into effect their orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions. The governor was to fill vacancies in the office of judge of the Supreme Court or Circuit Courts by appointment, until a successor should be elected and qualified for the residue of the unexpired term.
A judge of probate was to be elected in each county for a term of two years, with powers and jurisdiction to be prescribed by law ; but the legis- lature was authorized to abolish the office in any county and confer probate powers on such inferior courts as it might establish therein.
Justices of the peace were to be elected at town and charter elections in towns, villages and cities, to hold for two years, and to have such civil and criminal jurisdiction as should be prescribed by law.
The constitution further made the Senate of the state "a court for the trial of impeachments by the ' House of Representatives' of civil officers of the state for corrupt conduct in office or for crimes and misdemeanors," the concurrence of two-thirds of the members of the Senate present being re- quired to convict.
Milwaukee county, with the counties of Wauke- sha, Jefferson and Dane, was made the Second Judicial Circuit. The first legislature of the state was convened on the first Monday of June, 1848, and provided for holding an election for judges on the first Monday of Angust following. At this election, Levi Hubbell of Milwaukee was chosen judge of the Second Circuit, and his term was fixed at three years. Judge Hubbell came to Milwaukee in 1844, at the age of thirty-six, from the state of New York. He had received a liberal education, graduated at Union Col- lege, Schenectady, in 1827, and after his ad- mission to the bar practiced law for a time with a brother in Canandaigua, New York. He carly became interested in politics, and being a strong partisan and a ready and pop- ular speaker, was soon recognized as a man of mark. In January, 1833, he was appointed by Governor Marcy of New York adjutant-general of the state, and held the office nearly four years. He was afterward elected to the assembly of New York. In Milwaukee he became associated in the practice of law for a time with Asahel Finch and William Pitt Lynde, then, as afterward,
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