USA > Wisconsin > Milwaukee County > Milwaukee > History of Milwaukee from its first settlement to the year 1895 > Part 39
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In April, 1887, George II. Noyes was elected the first judge of the Superior Court. He was a native of the state of New York, came to Wisconsin with his family in 1855, graduated from the state university, and was admitted to the bar in 1874 after completing a course of study in its law department. The same year he commenced practice in Milwaukee as a member of the firm of Dixon, Hooker, Wegg & Noyes, at the head of
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which was Hon. Luther S. Dixon, ex-chief justice of the Supreme Court of the state.
Judge Noyes had established a high reputation as a sound, able and upright lawyer when he was induced to accept the judicial office. From the first of January, 1888, he so discharged its duties as to win the entire respect and confidence of the bar, who learned with sincere regret of his de- cision, in 1890, to resign and enter upon active practice as a member of the law firm of Miller, Noyes & Miller. Frank L. Gilson was appointed his successor. Born in Ohio in 1846 and educated at Hiram and Oberlin colleges in that state, Judge Gilson was admitted to the bar at West Bend, Wisconsin, in 1870, and from 1872 to 1883 prac- ticed at Ellsworth, Wisconsin. He was district attorney of Pierce county from 1874 to 1880; was a member of the Assembly in 1881 and 1882, and speaker of that body in the latter year. He took up his residence in Milwaukee in 1883 and prac- ticed law in association with L. F. Frisby and afterward with Eugene S. Elliot, until he was elevated to the bench of the Superior Court. He had been chiefly known as an ardent and active politician, and fears were expressed by many that he might not possess that judicial balance so essen- tial to a successful carcer upon the bench. All such fears were speedily removed. The judge brought to the discharge of his new duties such kindliness and urbanity of manner, such evident candor and sincerity and such industry and con- scientious effort in the examination of all ques- tions which came before him, that he quickly won the warm regard of the bar. Upon his sudden death, June 6, 1892, the vacancy was filled by the appointment of John C. Ludwig, who was afterward elected to the office for the full term commencing January 1, 1894. In 1891, the legis- lature provided for an additional judge of the Superior Court to be first elected in April of that year. Robert N. Austin was elected such judge, and he and Judge Ludwig are the present judges of the court. Judge Austin is a native of Otsego county, New York, graduated from Union Col- lege in 1845, was admitted to the bar of New York in January, 1848, and settled in Milwaukee in May of the same year. He brought to the judicial office the garnered experience of more than forty years of varied and successful practice. Judge Ludwig is a native of Milwaukee; born in 1850, educated here in private schools and in the
law office of Mann & Cotzhausen, and admitted to the bar in 1875. Both judges are esteemed as able, upright and conscientious men in the dis- charge of their high duties.
The legal provision for the orderly administra- tion of justice in cases of crime in Milwaukee have been anomalous from the time of the incor- poration of the city. The original charter passed in 1846 provided that the Common Council should designate one of the justices of the peace elected within the city to be a police justice, and con- ferred upon such police justice, in addition to the ordinary powers and duties of a justice of the peace, "sole and exclusive jurisdiction to hear all complaints and conduct all examinations and trials in criminal cases within the city ; " and also " ex- clusive jurisdiction in all cases in which the city was a party." Other justices in the city were authorized to issue warrants in criminal cases re- turnable only before the police justice, but without fee.
In 1850 an act was passed giving the justice of the peace of the Fifth ward concurrent jurisdic- tion with the police justice, of criminal offenses committed within his ward. This act was repealed by the new and revised city charter passed in 1852, which made the police justice a city officer to be elected as such annually, and to exercise ex- clusive jurisdiction in criminal cases only, within the city, cognizable before a justice of the peace.
The office of police justice was held by Clinton Walworth, one of the pioneer lawyers of 1836, from 1846 until it was superseded in 1859. Mr. Walworth was a native of Otsego county, New York, and a nephew of Chancellor Walworth of that state. He came to Milwaukee at the age of twenty-one and identified himself early with its life and interests. He was modest and retiring, of courteous manners and dignified bearing. His long service as police justice by virtue of repeated annual elections proves the high esteem in which he was held as a citizen and magistrate.
In 1859 an act was passed by the legislature creating the Municipal Court of the county of Mil- waukee, with jurisdiction concurrent with the Cir- cuit Court of said county, " to hear, try and de- termine all cases of crimes and misdemeanors of whatsoever kind-except such as may be punish- able with death or in the state prison for life-that are or may be cognizable before the Circuit Court, which may be committed in the county of Mil-
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waukee." This court was also invested with the powers and jurisdiction of the police justice of the city, and that office was abolished upon the election and qualification of the municipal judge.
Under this act the municipal judge was made " chief magistrate of the city of Milwaukee," and the powers of a justice of the peace in criminal cases not indictable, and in city prosecutions, were vested in him; and the same court was made a court of record, with power to try indictments for all criminal offenses not punishable with death or life imprisonment, and with exclusive jurisdiction of appeals from justices of the peace of the county in criminal cases ; all examinations, recog- nizances and commitments from justices of the peace were to be certified and returned to such court instead of the Circuit Court. All laws con- ferring powers and jurisdiction upon circuit courts or the judges thereof, in criminal cases, or regu- lating the proceedings of such courts or the judges therein, were extended to such Municipal Court and its judge, and the judgments of such court were declared to be subject to examination and review by the Supreme Court in the same manner and to like extent as the judgments of the circuit courts of the state. In substance and effect, the act combined in one court and one and the same judge, all the powers and jurisdiction of the Cir- cuit Court in criminal cases-capital cases only ex- cepted-with the exclusive powers and jurisdic- tion theretofore exercised by the police justice in the city.
The act creating this court was approved by the governor March 18, 1859, but it was not officially published until June 29th of the same year. As directed by the terms of the act, the first election of judge and clerk of the court was held on the first Tuesday of April, 1859. Erastus Foote, having been elected judge, proceeded at once to organize the court, empanel juries, receive and try indictments, sentence persons convicted, and in short to exercise all the powers conferred by the act.
About this time, the Supreme Court, construing a provision of the state constitution, decided that any act affecting general public interests, though in terms applying only to a particular county or city, must be deemed a general law in the sense of that provision of the constitution requiring that every general law must be published before it shall take effect. Attorneys quickly perceived the
bearing of this decision upon the new court. The election for judge and clerk had been held before the act creating the court was published, conse- quently before the act went into force. The validity of the election and the authority of the judge were questioned and soon boldly denied Proceedings were begun for the discharge of men imprisoned under sentence of the court. The greatest confusion prevailed to the prejudice of criminal justice until February 21, 1860, when the Supreme Court, on a quo warranto proceed- ing prosecuted by the attorney-general, held the election invalid and gave a judgment of ouster against Judge Foote. The Supreme Court held, however, that his judicial acts, done after the date of publication of the act creating the court, were valid, as the acts of a de facto judge or court.
To meet the emergency the legislature, then in session, promptly passed an act which was ap- proved and published March 1, 1860, directing that a special election be held on the first Tuesday in April to fill the vacant offices of judge and clerk, and authorizing the governor to fill the vacancies meanwhile by appointment. James A. Mallory was both appointed and elected judge un- der this special act, and early in March, 1860, en- tered upon a period of judicial service which continued without interruption for nearly thirty years.
Judge Mallory was admirably fitted by charac- ter and training for the duties of this important office. Educated for the bar in Buffalo, New York, he came to Milwaukee in January, 1851, after a brief practice in his native state. He was elected district attorney of the county in 1854, and re-elected in 1856 withont opposition. As judge he was prompt, able, efficient and fearless ; dealing out justice fairly and impartially, but with a positiveness and decision which struck terror to the hearts of the criminal classes.
In 1865 the legislature gave the court jurisdic- tion, concurrent with the Circuit Court, of all actions for breach of any recognizance given in the court in any criminal prosecution, requiring, however, that a transcript of the judgment in any such action should be filed and the judgment docketed in the office of the clerk of the Circuit Court of the county to make it a lien on real estate. In 1879 the jurisdiction was further en- larged so as to be "concurrent and equal with the
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Circuit Court of the county in all cases of crimes and misdemeanors arising in the county." Since then the Circuit Court of Milwaukee county has exercised no criminal jurisdiction whatever, except in cases removed to it from the Municipal Court, or from some other county for legal canse. For thirty-five years, virtually the whole administra- tion of justice in cases of crimes and misdemean- ors of every grade, including prosecutions for violations of city ordinances and all sorts of petty offenses, was the function of this court exclu- sively.
The municipal judge devoted the morning of each secular day to the summary hearing and disposition of all cases bronght before him by the city police or otherwise, with or without process, for violation of the criminal laws of the state committed in Milwaukee county, or of the ordi- nances, laws, rules, regulations, resolutions and by-laws of the city of Milwaukee, and to prelimi- nary examinations of persons charged with indictable offenses ; and then, at the same place and in the same atmosphere, putting on the airs and assuming the dignity of a court of record, took up the formal trial of the gravest crimes. The only relief afforded the judge from the pres- sure of these varied and incongruous duties was found in the power given him in case of his absence, sickness, or inability for any cause to attend to his official duties, to designate one of the justices of the peace of the city to temporarily discharge any of such duties, except the holding of a term for the trial of indictable offenses.
Judge Mallory was succeeded as municipal judge in January, 1890, by Hon. Emil Wallber, the pres- ent incumbent of the office. Judge Wallber has been a resident of the city from early boyhood. He was educated here, studied law with Smith & Salo- mon, was chief clerk of Hon, Edward Salomon
while governor in 1862-3; was assistant to Attor- ney-General Winfield Smith in 1864 and 1865; a member of the Assembly in 1872 ; president of the School Board of the city from April, 1871, to April, 1873 ; city attorney from April, 1873, to 1878; and mayor of the city from 1884 to 1888. In all these positions he served with credit, and as municipal judge he has proved a worthy and able follower in the footsteps of his veteran predecessor.
The multifarious powers and functions of the Municipal Court remained unchanged until the legislative session of 1895, when the office of police justice was again created and vested with the usual powers and jurisdiction of such inferior courts, the Municipal Court, over which Judge Wallber has been again chosen to preside, retain- ing only its appellate jurisdiction and its power, concurrent with the Circuit Court, for the trial of informations and indictments.
In the foregoing sketch of the organization and growth of the courts and of the administration of justice in Milwaukee during the sixty years past, the reader will find abundant evidence of the con- servatism and solidity of the social and business life and activities of its citizens, and of the absence of that contentious spirit or recklessness of con- duct which are so fruitful sources of litigation. Probably no community in the United States ever reached so high a rank in population and wealth with so little display or use of legal machinery. What is true of the general spirit and character of the population of the city has always been true no less of the quality, standing and temper of the members of its bar. Those who joined the band of pioneer settlers in 1836 and during the terri- torial period, and two or three years immediately following the admission of Wisconsin into the Union of states, were chiefly young men of excep- tional talent, education and acquirements.
CHAPTER XXXII.
THE BAR AS IT WAS AND IS.
BY JOSHUA STARK.
I T was most fortunate for the young community that so many of its early lawyers were able and cultivated men from the homes and colleges of New England and New York. Bred in an atmosphere of intelligence and refinement, they were not men to stir up strifes and encourage useless litigation for selfish ends. The bar of 1836 included Jonathan E. Arnold, John H. Tweedy, Horatio N. Wells, Clinton Walworth, Hans Crocker, William N. Gardner and John P. Hilton. Arnold, Tweedy and Walworth had but just attained their majority. Wells and Crocker were both under the age of thirty. Mr. Arnold was a native of Rhode Island, a graduate of Brown University and a student of the Harvard Law School, gaining admission to the bar before he reached his majority. Mr. Tweedy was a native of Connecticut, graduated at Yale at the age of twenty, and was admitted before he was twenty- two after a two years' course at the Yale Law School. Horatio N. Wells was educated and made his preparation for the bar in Vermont, his native state. Hans Crocker, born in Ireland, was brought to the United States when very young, and spent his youth in Utica, New York, where he received an academic education. Mr. Wal- worth was a native of Otsego county, New York, of distinguished family, and well fitted by educa- tion for his chosen profession.
Gardner and Hilton are both reputed to have been men of superior ability and professional attainments. Hilton ranked high among his fel- lows, and was associated in practice with Mr. Arnold as senior partner for a brief time. His death in August, 1838, was decmed a serious loss to the young community. Gardner was appointed the first district attorney of the county in 1836 by Governor Dodge, and was a prominent citizen and leading lawyer until he died in August, 1839, " universally esteemed for his kindness of heart and urbanity of manner," and as a man "irre- proachable in his private character."
In 1837, Don A. J. Upham, born in Vermont, a graduate of Union College and trained to the law in the cities of New York and Baltimore, settled in Milwaukee at the age of twenty-eight, having had three or four years previous practice.
In 1838 came Wilson Graham, from Ashtabula, Ohio, at the age of twenty-three. Of Irish birth, he was educated in Ohio and there admitted to the bar in 1837. A law partnership soon after formed by him with Mr. Upham continued until 1864, when the failing health of Mr. Upham compelled his retirement from active life. In 1839 came Hon. Andrew G. Miller, the newly ap- pointed district judge, with his family; also Asa- hel Finch, Jr., a native of Genoa, New York, who was admitted to the bar in Michigan in 1838 at the age of twenty-nine. In 1841, William Pitt Lynde, of Sherburne, New York-having gradu- ated at Yale College with. the highest honors in 1838 at the age of twenty-one, and received a thorough education for the bar at the Harvard Law School under Judges Story and Greenleaf- took up his permanent residence in Milwaukee. Early in the following year, Messrs. Finch and Lynde formed the well-known firm for the prac- tice of law, which continued for more than forty years. The ranks of the profession were further increased in 1841 by the arrival of James B. Cross, Francis Randall and Isaac P. Walker. Cross was a native of Geneva, Vermont, and Walker of Virginia.
Abram D. Smith, Jason Downer and Peter Yates were the important accessions to the bar in 1842. Of these, Smith was born in western New York and educated as a physician. After prac- ticing a short time as such in Cleveland, Ohio, he studied law and came to Milwaukee soon after his admission to the bar. Mr. Downer was a native of Vermont, and graduated at Dartmouth College in 1838 at the age of twenty-five. He studied law and was admitted to the bar at Louisville, Kentucky, where he practiced a short time.
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HISTORY OF MILWAUKEE.
James Holliday came in 1843 from Pennsylvania, his native state, at the age of twenty-five; and in 1844 James S. Brown, a native of Maine, but trained in the legal profession in Cincinnati, Ohio, and Levi Hubbell of New York, adopted Milwan- kee as their professional home.
Such were the men who, during the first ten years, virtually constituted the bar of Milwaukee. A few others came, but their stay was short or their professional rank and influence unimportant. A brief reference to the subsequent career of the men thus named will serve to show the very high grade of talent and acquirements of these pioneer lawyers. The lives of Judges Wells, Hubbell and Walworth have already been sketched.
In association with Hans Crocker, Mr. Tweedy had a large and lucrative practice in the courts until 1844, about which time both he and Mr. Crocker withdrew from active professional life, Mr. Tweedy, it is said, for reasons of health, and Mr. Crocker on account of distaste for the experi- ence and details of active practice. Both were strong men intellectually and continned to be ac- tively engaged in labors of a public character, contributing with zeal and energy to the advance- ment of the interests of the town. In 1840 Mr. Tweedy was appointed receiver of the Milwaukee and Rock River Canal grant, and for several years after was closely identified with the canal enter- prise. In 1841-2 he ably represented Milwaukee in the territorial council. In 1846 he was an in- fluential member of the first convention to frame a state constitution, and in 1847 was sent by the territory as its last delegate to Congress. He represented his assembly district in the legislature in 1853, and a few years before his death served in the School Board of the city. He was actively engaged in the early efforts to secure the building of railroads leading out from the city, and at all times gave intelligent and earnest support to measures that he deemed conducive to public welfare.
Mr. Crocker was an ardent politician and edited for a short time in 1836 the "Milwaukee Ad- vertiser," the first regular newspaper published in the town. He was also deeply and actively inter- ested in the railroad enterprises centering here, and from 1859 to 1865 held and operated the LaCrosse & Milwaukee railroad, or some portion of it, as receiver, appointed by the United States District Court in foreclosure proceedings. He was
a member of the Territorial Council in 1842-4, mayor of Milwaukee in 1852, and held other posi- tions of trust.
Mr. Arnold devoted himself unreservedly to his profession from the outset, and advanced rapidly to leadership among his fellows. His intellectual gifts were of a high order, and by study and dis- cipline he had acquired ability to use them with great power. He was a master of logic, was graceful and polished in diction-able, however, with consummate art, to suit expression to the mental capacity and culture of his hearers-was grave, earnest, and often impassioned as an orator, but was most skillful in the examination of wit- nesses and adroit in the art of winning the confi- dence and sympathy of an unsuspecting jury. In the conduct of criminal causes he was soon with- out a peer. Some of the notable trials in which he was engaged and won surprising triumphs while in the fullness of his strength as a lawyer, are remembered by those who witnessed them as marvelous exhibitions of legal and forensic genius and power. Mr. Arnold served several years as district attorney before Wisconsin became a state. In 1840-1 he represented the county in the Terri- torial Council. In politics he was an enthusiastic Whig and an ardent admirer of the great leaders of that party, especially of Mr. Webster, whose defeat as candidate for the Whig nomination for president in 1844 by General Scott caused him bitter disappointment. When the Whig party was broken up, his conservatism forced him into the Democratic ranks until the outbreak of the South- ern rebellion, when his sincere patriotism tri- umphed over all other sentiments and led him to give cordial support to the cause of the Union against armed treason.
Mr. Upham early secured prominence and influ- ence both as a lawyer and a citizen. Being a Democrat in politics, he was sent to the Territorial Council in 1841-2, was made county attorney in 1843, a member and president of the first Consti- tutional Convention in 1846, mayor of the city in 1849-50, United States District Attorney in 1857 to 1861, and Democratic candidate for governor in the fall of 1851 against Leonard J. Farwell.
Mr. Finch was for two or three years associated with Wells and Crocker in law practice. Crocker retired from the firm in 1841 and entered into partnership with John H. Tweedy, and in 1842 Wells also retired, and the partnership between
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Mr. Finch and William Pitt Lynde was formed, which lasted while they lived. Mr. Finch was a shrewd and able lawyer, of excellent judgment, intimate practical familiarity with general busi- ness and untiring industry and energy.
Mr. Lynde was a man of superior scholarship, of refined tastes, a lover of books, and studious and learned in the law and in the arts, sciences and general literature. Mentally and morally upright and sincere, he possessed the entire con- fidence of his clients and respect of all the courts in which he practiced. He was a gentleman in the truest sense, cultivated and accomplished. The firm of Finch & Lynde soon took the first rank as lawyers in general practice. Mr. Lynde gradually acquired high reputation as a successful chancery lawyer, and secured also a large practice in admiralty and patent causes, for which he showed special aptitude. He was also honored with re- peated elections to places of public trust. He rep- resented his district in the Senate of the state in 1869-70 and in the Assembly in 1866; also in the Thirtieth, Forty-fourth and Forty-fifth Congresses, having important duties assigned him in connec- tion with the legal controversy over the result of the presidential election in 1876. He was also mayor of the city in 1860, and in all public positions acquitted himself with high honor. In January, 1857, the firm was enlarged by the admission to membership of Henry Martyn Finch, a nephew of Asahel Finch, Jr., and Benjamin Kurtz Miller, a son of Hon. A. G. Miller, the judge of the United States District Court, the new firm taking the name of Finches, Lynde & Miller.
James B. Cross gained little distinction as a lawyer, but was active in public and political affairs, being probate judge in 1849, member of the Assembly in 1855, mayor of the city from 1855 to 1857, and the candidate of his party for governor in 1857. Francis Randall held high rank in his pro- fession while he remained in the city, but returned at the end of a few years to the state of New York, where he formerly lived.
Isaac P. Walker was more prominent in politi- cal than in professional life. He was judge of . probate in 1847, was elected United States Senator in 1848 for the short term, and re-elected in 1849 for a full term of six years, at the expiration of which he withdrew to country life. After several years of retirement he resumed legal practice in Milwaukee for a time with fair success.
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