USA > Wisconsin > Milwaukee County > Milwaukee > History of Milwaukee from its first settlement to the year 1895 > Part 38
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HISTORY OF MILWAUKEE.
leading men in the profession. His political expe- rience, pleasing address and accomplishments as a public speaker soon gave him prominence and leadership in Democratic circles, then dominant in the city and state. In 1848 he was sent as a delegate to the Democratic National Convention in Baltimore, and in July of the same year was elected the first judge of his judicial circuit.
A man of the temperament of Judge Hubbell could not fail to gather about him devoted friends, or to provoke unfriendly judgments if not open hostility. He was a man of ability and force of character, but by nature and training warmly partisan. He became prominent in political and social circles of which he was the recognized cen- ter. While probably unconscious of any failure in act or intent to discharge his official duties up- rightly and with impartial justice, he was indis- creet enough to give some occasion for feelings of distrust, which grew in time into positive unfriend- liness on the part of many members of the bar and other citizens.
An election was held in the circuit, in April of 1851, to fill the vacancy about to occur by the expiration of his first term. Judge Hubbell was candidate of his party for re-election. Asahel Finch was put forward as the opposing candidate. The canvass was earnest, and became, as it ad- vanced, extremely bitter and grossly personal, although it resulted in the re-election of Judge Hubbell by a fair majority. The opposition, which had been very decided and outspoken during the contest did not abate, but rather increased in intensity. Early in the legislative session of 1853 an act was passed, at the instance of lawyers in his circuit, making it the imperative duty of the judge of any court of record in the state to which an application should be made for a change of the place of trial of an action there pending, on ac- count of the prejudice of such judge, to award such change. At the same session articles of im- peachment were preferred by the Assembly and brought to trial before the Senate in June of the same year.
The grounds upon which the impeachment was sought were, mainly, alleged partiality and arbi- trary conduct in the administration of justice, and free consultation with favorites out of court re- specting matters pending before him as judge. The trial was notable for the great ability dis- played in its conduct, and especially for the
vehemence and fierceness of the attack and the masterly skill of the defense.
The Assembly employed Hon. Edward G. Ryan to assist its chosen managers in the prosecution of the impeachment, and Judge Hubbell was defended by Jonathan E. Arnold of Milwaukee and James H. Knowlton of Grant county, Mr. Arnold having the laboring oar.
Ryan and Arnold were both members of the Milwaukee bar, and in their prime, physically and mentally. Both were men of great intellectual endowments, and both had enjoyed the advantages of classic culture and of the thorough training and discipline of their times in the principles and practice of the law, and they entered the lists fully armed to contend as champions in a mortal conflict. Both were men of nervous temperament, sensitive, alert and proud, but otherwise most unlike. Ryan was vehement, passionate, severe, merciless in denunciation and terrible in invective, while Arnold was outwardly calm and deliberate, but intensely earnest, seeming to repress an in- ward fire which would now and then flame out in a burst of eloquence which startled and over- whelmed his hearers.
The final arguments of these gentlemen before the Senate were masterpieces of forensic oratory, and the record of the trial, published in full by the state, is carefully treasured in many libraries as proof of the extraordinary legal ability and power of the chief actors in the drama.
Judge Hubbell was acquitted, and after the trial continued in the exercise of his functions as circuit judge. Although he sought earnestly to wipe out the memory of the past, the confidence of those who had been arrayed against him was not easily restored. In 1856, a year and some months before the expiration of his term, he resigned and resumed the practice of his profession in the city. Upon the outbreak of the war of the rebellion he came promptly to the support of the government with voice and whatever influence he possessed, and heartily upheld the administration in its struggle with rebellion and disloyalty everywhere. In 1864 he represented the Seventh ward of Milwaukee in the Assembly, and in 1871 was appointed by President Grant United States district attorney for the Eastern district of Wis- consin, which office he held until 1875.
The vacancy in the circuit judgeship caused by the resignation of Judge Hubbell in 1856, was
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filled by the appointment of Alexander W. Ran- dall of Wankesha, who held until the expiration of the term. Judge Randall was a native of the state of New York and became a resident of Waukesha, Wisconsin. in 1340. His abilities and superior professional acquirements placed him at the head of his profession in his county and gave him prominence among the men of influence in the territory and state. During his brief service as circuit judge he discharged the duties of his office ably and with dignity. His subsequent career as a member of the state legislature, gov- ernor of the state, Postmaster-General in the cab- inet of President Johnson and United States Minister to Rome, are too well known to need comment.
On the first of January, 1858, Hon. Arthur MaeArthur entered upon the duties of the circuit judgeship in Milwaukee as the successor of Judge Randall. He had been elected in 1857 for a full term. Judge MacArthur was a native of Glas- gow, Scotland, where he received his early educa- tion. Coming to Milwaukee in 1848 at the age of thirty-three years, his popular social qualities and
rare gifts as a public speaker soon made him widely and favorably known, not only in Milwau- kee, but throughout the state. In 1852 he was elected city attorney and in 1855 was nominated as the Democratic candidate for lieutenant-gover- nor and elected, although Barstow, the head of the ticket, was defeated.
The judge presided over the Senate of the state in 1856 and 1857 with dignity and grace. He was elected circuit judge for a second term in 1863, and continned upon the bench until the end of the term. He then removed to Chicago, intending to practice his profession in that city. A little later, however, he was appointed by Presi- dent Grant an associate justice of the Supreme Court of the District of Columbia, which office he held until his resignation and retirement in 1888, at the age of seventy-three years. He was an able jurist and much inclined also to literary studies. The delights of social life had great attractions for him, and he was a gentleman of charming manners, warmly patriotic in sentiment, a ready and popular orator and very genial and courteous in social intercourse.
CHAPTER XXXI.
MILWAUKEE COUNTY AS A JUDICIAL CIRCUIT.
BY JOSHUA STARK.
N 1869, David W. Small of Waukesha county was chosen by the electors of the circuit to succeed Judge Mac Arthur. Judge Small was a native of Pennsylvania, had practiced as a sur- veyor and lawyer residing in Oconomowoc from 1850, and had held the office of district attorney of his county several years. He was judge of the Milwaukee Circuit Court from January, 1870, until the expiration of his second term, the first Monday in January, 1882. During all this time he resided in Oconomowoc, never having identified himself with the bar of Milwaukee.
By an act of the legislature approved March 6, 1882, Waukesha county was detached from the Second circuit, leaving Milwaukee county a cir- cuit by itself. Hon. Charles A. Hamilton suc- ceeded Judge Small, and presided as circuit judge until the first Monday of January, 1888. He was a grandson of Alexander Hamilton, born and educated in the city of New York, and came to Milwaukee in May of 1851. He soon after formed a law partnership with Jonathan E. Arnold, which continued several years. He was afterward asso- ciated with the firm of Emmons & VanDyke, men of long practice and eminent in the profession. Judge Hamilton entered the military service in August, 1861, soon after the outbreak of the Civil War, as major of the Seventh Regiment of Wis- consin Volunteer Infantry, served nearly two years in the army of the Potomac, was severely wounded at the battle of Gainesville, Virginia, and was compelled by consequent disability to resign his commission in 1863.
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. His successor, Daniel H. Johnson, assumed the office of circuit judge in January, 1888; was re-elected in 1893, and is now serving his second term. Judge Johnson came to judicial honors with the experience of many years of active and successful law practice. Born in Canada, he came early to
the states ; was educated at Rock River Seminary at Mount Morris, Illinois, located at Prairie du Chien in 1849, represented his district in the As- sembly in 1861, and was assistant attorney-general during the last half of that year. He located in Milwaukee in 1862, and was associated profession- ally at different times with D. G. Rogers, Hon. Edward G. Ryan, Hon. R. N. Austin, and Messrs. Rietbrock & Halsey. In 1869-70 he served in the state legislature as a member from Milwaukee. As a member of the School Board of the city and as city attorney, he had rendered able and valu- able public service and justified the confidence in his ability and fidelity in official station, which was expressed in his elevation to the high office he now holds. Of the gentlemen who have successively presided as judges of the Milwaukee Circuit Court, all except Hubbell and Randall-the first two-are still living.
Until January 1, 1850, the circuit courts were the only courts of record in the state having civil or criminal jurisdiction, and until June 1, 1853, the circuit judges also constituted the Supreme Court of the state sitting as such to review their decisions, rendered at the circuit, upon appeal or writ of error. Judges of probate indeed there were, with the usual functions of courts instituted for the administration and settlement of estates, but their jurisdiction embraced nothing else.
Under authority of the state constitution, be- fore referred to, county courts were created by the revised statutes of the state which took effect January 1, 1850, with limited civil jurisdiction. The office of judge of probate was abolished from that date, and full probate powers were conferred upon such county courts.
In June, 1853, a separate Supreme Court, con- sisting of a chief justice and two associate justices, was organized, which relieved the circuit judges of their duties, as such court. While Wisconsin remained a territory, the office of probate judge of Milwaukee county was filled by several cit-
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MILWAUKEE COUNTY AS A JUDICIAL CIRCUIT.
izens, some of whom were not lawyers. The first was Nathaniel F. Hyer, appointed in 1836. He was followed by William Campbell in 1837; Daniel Wells, Jr., in 1838; Cyrus W. Dunbar in 1839 to 1843; Joshua Hathaway in 1843 and 1844; Clinton Walworth in 1845 and 1846, and Isaac P. Walker in 1847 and 1848.
The election of Judge Walker to the United States Senate, in June of 1848, caused a vacancy in the office, and the legislature, then in session, provided by special act for an election to be held July 10th to fill the vacancy. James Holiday, an able and prominent lawyer, was chosen and served to the end of the term.
James B. Cross succeeded him Jannary 1, 1849, having been elected at the general election in 1848 for the regular term of two years. He served, however, but a single year, as the act abolishing the office and conferring all its powers upon the County Court took effect January 1, 1850. This act (R. S., 1849, chap. 86) conferred upon a County Court to be organized in each county in the state, "original jurisdiction concur- rently with the Circuit Court to try and determine according to law all civil actions arising within the county, * * * and all transitory actions, although the same may not have arisen within the county, where the debt or damages demanded do not exceed the sum of five hundred dollars (excepting actions of ejectment), and exclusive appellate jurisdiction of all cases of appeal and certiorari from justices of the peace."
Such court was also empowered to "enter judg- ments by confession and to grant new trials, and, by the consent of parties, to try any civil actions without limitation as to amount;" and its judge was, from and after the first day of January, 1850, "invested with full and exclusive probate powers."
The legislature evidently regarded the court thus created as but little above the ordinary justice of the peace. Not only was its jurisdiction as to amount absurdly limited, but no provision was made for a trial of issues of fact by a jury, except in case of a demand by either party, and then the jury was to consist of not more than six persons selected from a list prepared by an officer or other person designated by the court, the procedure being the same as that in courts of justices of the peace. The term of office of the county judge was made four years, and he was to be compensated by fees only.
In 1854, the jurisdiction of the County Court of Milwaukee county was extended, by an act of the legislature, to all civil cases not involving more than five thousand dollars in value or amount, with a proviso expressly excluding equity and criminal jurisdiction; and, it having been held by the Supreme Court that the provision for a jury of six was unconstitutional, the law was amended so as to provide a regular panel of petty jurors for each term of the court.
Until October, 1856, the distinction between legal and equitable actions as to pleadings and practice had been carefully maintained in Wis- consin. This distinction was abolished by the legislature in October, 1856, and the New York code of procedure was adopted almost without change. The provision of this code permitting equitable defenses to be pleaded to actions at law, made necessary the conferring of some equity juris- diction upon the Milwaukee County Court. This was done by the revised statutes of 1858, “so far only as to enable said court to hear and determine any equitable defense, which may be set up by de- fendant as a defense only, to the plaintiff's action."
In 1860 the legislature further enlarged the jurisdiction of this court so as to include all civil actions, both as to matters of law and equity, equal to the Circuit Court, and to authorize such court to exercise the same powers and jurisdiction in all civil actions as exercised by the Circuit Court, the only limitation being that the value of the property or the amount of money in contro- versy should not exceed twenty thousand dollars. The rules of practice prescribed by the Supreme Court for circuit courts were also made applicable to said County Court. In 1868, the limitation was again enlarged to one hundred thousand dollars, and in 1871, to five million dollars, and from that time the County Court and its successor, the pres- ent Superior Court of Milwaukee county, have ex- ercised within the connty virtually the same orig- inal jurisdiction as the Circuit Court in all civil actions, both in law and equity.
The first judge of the County Court was Hon. Horatio N. Wells, elected in September, 1849, for a term of four years. He was one of the little band of lawyers who came with the first settlers of 1836, and helped to lay the foun- dations of the city of to-day. Ile was an astute and well-trained lawyer, with the experience of several years' practice before coming to Wisconsin.
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HISTORY OF MILWAUKEE.
His free and popular manners, unusual tact and shrewdness in the trial of causes, keen and ready wit and unreserved familiarity in intercourse with the early settlers, won him speedily their confi- dence and good-will. His practice was large and important from the outset, and he was for several years a man of great influence and the acknowl- edged leader of the bar. In 1839-40 he represented Milwaukee in the Territorial House of Representa- tives, and in 1847 and 1848 was a member and pres- ident of the Territorial Council. Before his election as county judge, the standing as well as the health of Judge Wells were somewhat impaired by habits contracted during the pioneer days. However, his natural wit and acuteness of judgment did not desert him, and he completed his term of four years and retired from the office and from profes- sional life with the sincere regard and good-will of the bar.
Charles E. Jenkins succeeded Mr. Wells as county judge in January, 1854. 1Ie was one of those who were attracted to Milwaukee as the metropolis of a new-born state, arriving in 1848. His evident talent and fine address quickly gained for him popularity and professional success. He was elected a member of the State Assembly in 1849 and re-elected in 1850, serving during the sessions of 1850 and 1851. He became the trusted counsel of Hon. Byron Kilbourn, one of the foun- ders of the city, of the Milwaukee and Rock River Canal Company and other important un- dertakings in which Mr. Kilbourn was concerned. After a service of nearly three years as county judge, he resigned in the fall of 1856 to engage in a business enterprise, in which he became inter- ested with others, and has since resided in the city of New York.
Hon. Byron Paine was appointed by the gov- ernor to fill out the term, and was in 1857 elected for the full term, commencing January 1, 1858. June 1, 1859, not yet having reached the age of · thirty-two, he assumed the duties of associate justice of the Supreme Court of the state, to which he had been elected in the spring of that year. The remarkable career of Judge Paine, at the bar and on the bench, deserves a larger place in the history of Milwaukee than seems appropri- ate in this connection.
Albert Smith succeeded him as county judge, by appointment in June, 1859, and continued in the office, being repeatedly elected as his own succes-
sor until his death, August 29, 1870. Judge Smith had been prominent and influential in pro- fessional and public life while residing at Batavia, in western New York, for many years prior to his removal to Milwaukee in 1846. He was a man of large frame and commanding presence, with a Websterian brow and anstere bearing. He had represented his district in Congress and came to Milwaukee at the close of his term, being then forty years of age. 'Engaging in law practice, he failed to gain here the high position, professionally or socially, which he had held in his earlier life. In 1853 he accepted the office of justice of the peace in the Seventh ward of the city, which he retained through repeated re-elections until his appointment as county judge in place of Judge Paine, as already stated.
Alpha C. May, born and educated in Vermont and resident in Milwaukee from 1853, was com- missioned by Governor Fairchild to serve as county judge for the remainder of Judge Smith's term, which expired January 1, 1874. Judge May had not been prominent in legal circles. He was a modest gentleman of refined and cultivated tastes, well instructed in the law, but rather averse to the conflicts in which the active lawyer is forced more or less to engage. At the close of an honorable service of more than three years as a wise and upright judge, he gave place January 1, 1874, to Hon. Henry L. Palmer, who had been elected for the full term beginning at that date. Judge Palmer had for many years held rank as one of the ablest men at the bar of the county or state. Coming to Wisconsin from West Troy, New York, in 1849, at the age of thirty, he soon formed a law partnership with Abram D. Smith, a man of distinguished ability in the profession-who came from Ohio-which continued with a large and increasing practice until Judge Smith went upon the bench as a member of the separate Supreme Court of the state, June 1, 1853. He was after- ward associated at different times with Erastus Foote, Joshua Stark, John R. Sharpstein and David G. Hooker, and continued in active prac- tice until he became county judge. During all this time he was prominent in Masonic circles, giving much time and energy to the interests of the order, and receiving its highest honors. IIe was also an influential leader in political life, yielding loyal and unswerving support to the Democratic party, to which he gave his allegiance.
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MILWAUKEE COUNTY AS A JUDICIAL CIRCUIT.
He represented his district in the Assembly in the years 1853, 1860, 1862 and 1873, and in the Senate of the state in 1867 and 1868, and presided over the Assembly as speaker during the sessions of 1853 and 1873. He also served the city as school commissioner and city attorney. Judge Palmer became identified with the Northwestern Mutual Life Insurance Company at its establishment in Milwaukee in 1860, was its legal counsel for many years and one of its executive officers, and did much to shape the early policy which has made it one of the strongest and soundest institutions of the kind in this country. His judicial career was brief. Though eminently fitted to adorn the bench, the offer of the presidency of the insurance company opened to him a career of usefulness so much more congenial and attractive that he could not decline it. He resigned the judgeship in Feb- ruary, 1874, after a few weeks' service, and entered upon the duties to which he has ever since given his undivided attention. The Northwestern Mutual Life Insurance Company of Milwaukee, the pride of the city. is a living witness to his ability, industry and fidelity in the administration of sacred trusts.
Again the appointing power was invoked to fill the office of county judge, and in February, 1874, Hon. John E. Mann was named by the governor. Since then there has been no change. By election after election Judge Mann has been maintained in the office so easily and securely that the office and the man seem united by an indissoluble band. He was born in Schoharie county, New York, March -graduating from the latter in 1843-and was admitted to the bar in 1846. After a few years' practice in the state of his birth, he came to Wis- consin in 1854 and located in West Bend, where he was associated with L. F. Frisby-afterward attorney-general of the state -- until 1859. In that year he was appointed judge of the Third judicial circuit in place of Charles H. Larrabie, resigned. He held this office until he removed to Milwaukee in 1867, and there resumed practice at the bar as head of the well-known and successful firm of Mann & Cotzhausen. As judge and as lawyer, Judge Mann has always commanded the highest respect and confidence. Calm and deliberate in judgment, conscientious and upright in motive and faithful in attention to official duties, he has won an enviable place in the regard of his fellow citizens.
Until 1888, the circuit and county courts of Mil- waukee county, each having but a single judge, were the only courts of record in the county with jurisdiction of civil actions. The Circuit Court was, indeed, relieved of most of its criminal business from 1859, but the County Court was burdened with all the probate business of the county, increas- ing rapidly.
It must ever be a matter of surprise that for so many years the judicial requirements of a prosper- ous and growing community, with a population of one hundred and twenty-two thousand nine hun- dred and twenty-seven in 1875, increasing to one hundred and eighty-seven thousand six hundred in 1885, could be fairly met by these two courts thus constituted. It may justly be taken as conclusive proof of the general integrity and law-abiding spirit of the people who laid its foundations and have built upon them the fair structure of indus- tries and institutions which constitute the Mil- waukee of to-day.
In 1887 it became apparent that the county judge could no longer discharge properly the duties of probate judge and also those of judge of a court for the trial of civil actions. With the growth of population probate business had so much increased as to demand the undivided atten_ tion of a competent officer. A register in probate had indeed been provided for, but with very limited powers, making him in effect merely a general clerk in the office of the judge. This failed to relieve.
At the legislative session of 1887, an act was 4, 1821, educated at Williams and Union colleges . passed creating a Superior Court for the county of
Milwaukee, with a single judge, to be elected for a term of six years and to receive a salary of five thousand dollars payable by the county. The act transferred to this court, from January 1, 1888, all actions then pending in the County Court and all the powers and duties which that court had exercised in civil actions, saving to the latter only its probate functions.
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