USA > Wisconsin > Milwaukee County > Milwaukee > History of Milwaukee from its first settlement to the year 1895 > Part 40
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Abram D. Smith was a man of distinguished ability and attainments. Learned in the principles of jurisprudence, strong in argument and gifted with extraordinary grace, fluency and eloquence as an orator, he was soon recognized as a worthy compeer of Arnold and Wells in forensic skill. The law firm of Smith & Palmer was formed in 1849 and continued until Mr. Smith, senior part- ner, went upon the bench of the Supreme Court June 1, 1853. The career of Judge Smith at the bar before his election to the bench was brilliant and successful. As judge, his great powers of in- tellect and force of will gave him commanding influence, and the decisions of the court seemed often in a striking manner to be the expression of his personal convictions. Grave questions of national interest, involving the rights of the states and of the general government, respectively, came before the court while he sat as a member, and were discussed by him in elaborate opinions, re- plete with learning, able argument and fervid rhetoric. He maintained extreme views of state rights with great earnestness and power. All his opinions were well written and gave evidence of careful study and of conscientious effort to do even and exact justice. The first eleven volumes of the reports of decisions of the court were edited by him. Upon his retirement, impaired health prevented his return to practice.
Jason Downer was an astute, learned and skill- ful lawyer, a wise and conservative counselor and a thorough man of business. For many years he gave very close attention to his profession and to his business interests, and in both achieved a marked success. In November, 1864, when Hon. Byron Paine resigned the office of justice of the Supreme Court to enter the army, Mr. Downer was appointed by the governor to fill the vacancy, and in April, 1865, he was elected to the office for a full term of six years. After a service of nearly three years upon the bench, Judge Downer resigned in September, 1867, and resumed practice as a lawyer. On the bench he was a sound, con- servative and able jurist, but the confining duties of the position were not wholly congenial to him or favorable to his health, impaired by too close and constant application to professional labor. His gifts in later life for educational and religious purposes were generous.
James Holliday was a man of great energy, able, eloquent and high-spirited, and commenced
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his professional life in Milwaukee with well- grounded hopes of a brilliant career. In 1849 he formed, with James S. Brown and Thomas L. Ogden, the firm of Holliday, Brown & Ogden. Mr. Brown was a young man of precocious talent, barely twenty-one years of age when he became district attorney of the county in 1845. He was an intense worker, of nervous temperament, but tenacious and undaunted under whatever circum- stances. While reading law in Cincinnati he had acquired familiar use of the German tongue, which proved of great advantage to him in a com- munity embracing a large and increasing German population with little knowledge of English. In 1848, he was elected, at the age of twenty-four, attorney-general of the new state. The standing of the firm of Holliday Brown, & Ogden was high and its prospects bright, when Mr. Holliday, its senior member, was taken suddenly ill in May, 1851, while engaged in an argument before the Circuit Court, and died within an hour. Mr. Brown continued his practice with his partner, Ogden, with distinction and success, holding, while his health permitted active service, a con- spicuous place in public esteem. In 1861 he was mayor of the city, and in 1862-63 representative in Congress.
Peter Yates was mentally acute, ingenious and eccentric. He believed that he had great inven- tive talent, and wasted most of his time and means in the early years in efforts to perfect in- ventions which were to revolutionize trade and bring him great wealth. At intervals he sought clients for a time in order to earn means for con_ tinuing his experiments, but he was finally forced to give up his visions of fortune and rely upon the rewards of professional labor for his support.
Of all these bright and able men who estab- lished themselves in the practice of law in Mil- waukee prior to 1846, but one survives. Wilson Graham, long the partner of Don A. J. Upham, though now in his eightieth year, follows loyally the path he has trodden for more than half a cen- tury, giving each day the same wise, patient and conscientious service to his faithful and trusting clients as in former days. Ilis tall form, slightly bent with age, moving about the city which he has helped to build from its very foundation, in- tent upon the every-day business of our times, is ample proof of a well-spent life. Mr. Graham was always, as now, of kindly disposition and man-
ners, modest and unpretentious, a good lawyer and a safe and honest counsellor. Few lawyers have won greater respect and confidence than he. He was town clerk in 1842, and has been alderman of the city. He was also a member of the Constitu- tional Convention of 1846, and of the Assemby of the state in 1855.
Such men composed the bar of Milwaukee during the first ten years of its history. With scarcely an exception they were men of marked ability and superior education, and en- dowed with qualities which entitled them to rank with the lawyers of any city in the land.
For many years following, the legal profession in the growing city was still recruited mainly from the Eastern states. The city was incorpor- ated in 1846, and the act of Congress providing for the admission of the state into the Federal Union was passed the same year. These events invited public attention anew to this, as a promis- ing field for professional labor. In the fall of 1846, Ammi R. R. Butler located in the city, coming from Genesee county, New York, im- mediately after his admission to the bar. He was a native of Vermont, but educated in western New York. Being of the mature age of twenty- five, and well prepared for his profession, he soon became prominent as an able and successful lawyer. He was the first district attorney of the county under the state constitution, being elected in 1848, and was twice re-elected, holding the office nearly six consecutive years. He was elected mayor of the city in 1876 without opposition, and was for several years president of the Bar Association of the county.
John P. McGregor also came to the city in 1846, from Madison county, New York, and with Henry W. Tenney practiced law in the city from 1848 until 1854, the firm being McGregor & Tenney. Both were good lawyers and men of liberal cul- ture. Both left the city in 1854. Mr. McGregor returned in 1860 and resumed professional work as junior partner with Hon. E. G. Ryan, until 1865. For the last twenty years he has been secretary of the North western National Insurance Company of Milwaukee.
Mr. Tenney went to l'ortage City, and later to Chicago, where for several years he was associated with his brother, Daniel K. Tenney, in the prac- tice of his profession. Ile is now a resident of Appleton, Wisconsin.
Inatruly
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Norman J. Emmons and John H. Van Dyke in equity, and in both branches of the practice removed from Detroit, Michigan, in 1847, and was able and successful. commenced practice as the firm of Emmons & Van Dyke. They were young men, able and well-equipped, and held a conspicuous place in the professional and business life of the city for more than twenty-five years. Mr. Van Dyke, having acquired wealth, has turned over to his two sons, G. Douglas and William D. Van Dyke, trained under his tutelage, the labors and emoluments of strictly professional pursuits. Mr. Emmons retired from active practice about the year 1880, and soon after returned to Michigan where he died.
In 1847, came also James II. Paine from Paines- ville, in Northern Ohio, with his two sons, Hor- tensius J. and Byron Paine. The latter was then but twenty years old. The father was a sincere and outspoken abolitionist, and his sons were both by inheritance and education strong and un- compromising opponents of human slavery and of all means employed for its extension or support. The father was a man of limited education, but of much native talent, and his earnestness, bold- ness and sincerity won him confidence and respect. Byron was admitted to the bar in 1849, and the firm of J. H. Paine & Sons practiced in a modest way until 1854, when the attempt to enforce the fugitive slave law of 1850 in Milwaukee, in the case of the negro Glover, awakened and called into energetic action, intellectual power and fo- rensic ability of the modest young man of twenty- six, the existence of which had been little sus- pected. The history of the "Glover rescue" case, as it developed in the courts of the state of Wis- consin and of the United States during the six years that followed, is no insignificant part of our national history, embracing incidents and events which did much to hasten the inevitable crisis of 1861 and the final doom of African slavery in the Union. The subsequent career of Byron Paine, his elevation to judicial honors, his military ser- vice and his death, have already been adverted to.
Thomas L. Ogden came to the city, in 1848, from New York city. He became a member of the firm of Holliday, Brown & Ogden, and after the death of Mr. Holliday, in 1851, continued with James S. Brown in practice as the firm of Brown & Ogden for ten years or more. Later his firm was Ogden & Pratt. Mr. Ogden gave special attention to the law of real estate and to causes
Milwaukee furnished the first attorney-gen- eral of the state, in 1848, in the person of James S. Brown, His successor, S. Park Coon, also a member of the Milwaukee bar, was elected in 1849. Mr. Coon was a native of New York and had been a resident of the city for several years. He was subsequently district attorney of the county in 1864 and 1865, and was employed for several years, in the futile effort to secure through the legislature and courts, the release of the far- mers and others who had mortgaged their lands to aid in building railroads in the state, from their obligations.
The bar of Milwaukee received many accessions in 1849. Among those who settled in the city during that year were Daniel H. Chandler, Har- low S. Orton, Charles K. Wells, Edward G. Ryan, Henry L. Palmer, Myron H. Orton, Arthur Mac- Arthur, Charles K. Watkins, Otis H. Waldo, Burr W. Griswold, Winfield Smith and John J. Orton. All of those named were for longer or shorter periods conspicuous in the active practice of their profession. Mr. Chandler was advanced in years, but had ranked well, especially as a solicitor in chancery, in western New York. He was actively employed in important equity suits for a few years after he came to Milwaukee, and served as official reporter of the Supreme Court of the state from 1848 to 1853. Harlow S. Orton remained in Milwaukee but a few years and removed to Madi- son, where he resided with brief interruptions until his death, July 4, 1895. In 1865 he was associated with his brother, John J. Orton, in the practice in Milwaukee. He represented Madison in the State Assembly in 1854, 1859 and 1871, was circuit judge of his circuit from 1860 to 1865, became an asso- ciate justice of the Supreme Court, April 18, 1878, and was a member of that court as long as he lived, being chief justice at the time of his death. Charles K. Wells was born in Maine, in December, 1817, graduated from Yale College in 1842, and spent the next three or four years as a teacher and law student in the " Old Domin- ion," where he was admitted to the bar in 1846. In April, 1847, he located in Milwaukee. In 1852 he formed a law partnership with Jerome R. Brigham, which continued until his death in 1893. Horace A. J. Upham, a son of the pioneer lawyer Don A. J. Upham, joined the firm in 1880. Mr.
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Wells' attainments as a lawyer were of a high or- der in those branches of professional work to which he gave special attention. He was very familiar with the law relating to real estate and to municipal corporations. Inclination, as well as ill-health, kept him from active service in the courts, but his judgment upon legal questions was sound and wise and his counsel was much sought. His partner, Mr. Brigham, became a member of the Milwaukee bar in 1852, after serving from Aug- ust, 1848, to December, 1851, as clerk of the Su- preme Court of the state. He was long an active officer of the Young Men's Association, organized to establish and maintain a circulating library and courses of public lectures. He has been a mem- ber of the School Board, has represented his dis- trict in the Assembly, and has served as city attor- ney.
Edward G. Ryan was born in Ireland in 1810, and came to America before reaching his majority. He had received a collegiate education and some legal training in the land of his birth; was ad- mitted to the bar in Chicago in 1836; for a few years was employed in editorial work and as law clerk, and in 1841 was prosecuting attorney. Removing in 1842 from Chicago to Racine, he engaged earnestly in law practice, and in 1846 be- came a member of the first Constitutional Con- vention, where his extraordinary intellectual pow- ers began to attract public attention. In 1848 he was sent as a delegate to the National Demo- cratic Convention, and in the same year he re- moved from Racine to Milwaukee. From this time until his death, his professional and judicial record are part of the history of the Milwaukee bar. He quickly took the place to which he was entitled by virtue of his great learning and in- tellectual power, in the front rank of the profes- sion. He had many early opportunities for the exercise of his commanding talent in both civil and criminal cases of great importance. He was associated at different times during his profes- sional career in Milwaukee, as partner, with Ex- Chief Justice A. W. Stowe of the Supreme Court, with J. R. Brigham, with James G. Jenkins, with Matthew H. Carpenter, with John P. McGregor and others. None of his partnerships endured long; that with Mr. McGregor was probably the most lasting. His imperious temper made inti- mate business association with him difficult with- out a speedy breach of harmony. In the year
1871, Mr. Ryan accepted the office of city attor- ney, which he held until June 17, 1874, when Governor Taylor appointed him chief justice of the Supreme Court in place of Judge Dixon, re- signed. This office he retained by election until his death, October 19, 1880. Judge Ryan, during. the six years of his service as chief justice, de- livered many opinions which are remarkable for their clearness and strength, and for breadth of legal learning and exhaustiveness of research. His opinion in the "Granger cases," so-called, decided in 1875, in which the power of the legislature to regulate railroad tariffs was maintained, is a mas- terly discussion of legal and constitutional princi- ples. It was said by one who at one time held close professional relations with him:
"A mind comprehensive and powerful in its grasp ; quick of perception ; profound learning in the law ; close familiarity with the writers of the past ; thorough mastery and precision of language; classical beauty of diction ; wonderful power of imagery ; great nervous force and energy, were the marked characteristics of him who towered above all others at our bar-the lawyer among lawyers.
"His arguments were models of their kind- clear in statement, clothed in the garments of classic thought and speech, rich in metaphor, scath- ing in invective, terrible in denunciation."
Myron H. Orton was a native of Madison county, New York. Removing to Ohio when young, he graduated at Kenyon College, studied law and located at La Porte, Indiana, where he engaged in the practice until he located in Milwaukee, in 1849, being then thirty-nine years of age. He remained here, being associated part of the time with Charles E. Jenkins, until 1853, when he removed to Madison and there continued in prac- tice until his death in 1860.
Charles K. Watkins was from Waterloo, New York, where he had been a practicing lawyer several years before removing to Wisconsin. He was a man of bright intellect and a sound lawyer, thoroughly Democratic in spirit, hating oppression and despising sham and deceit in whatever form. His ability as a speaker, whether before a jury or the general public, was unusual. In 1857 he took an active part with other citizens in the prepara- tion of amendments to the charter of the city, intended to remedy existing municipal abuses. During the few years preceding his death his
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attention was largely given to the interests of the Milwaukee & Chicago Railway Company, builder of the Lake Shore Railroad from the city of Mil- waukee to the Illinois state line, of which company he was a director and at the time of his death president. He died in 1858.
Otis H. Waldo was born in Prattsburgh, New York, in 1822, and graduated at Union College in 1842 with high honors. Soon after, his health being poor, he located in Natchez, Mississippi, and there studied law and was admitted to the bar. The institutions of the South were so distasteful to him that be determined to find more congenial surroundings in the West. His professional career in Milwaukee was highly honorable and successful. He was much and actively interested in public affairs, rendering most valuable service in effecting a re-adjustment of the heavy indebtedness of the city in 1862. and the establishment of its credit upon a sound basis. He was also an efficient actor in the enterprise of building the Milwaukee & . Northern Railroad, to which he gave much of his time and strength during the last years of his life. His death, October 30, 1874, at the age of fifty-two, from nervous prostration, was due to excessive and unremitting work.
Winfield Smith engaged in practice in Milwaukee at the age of twenty-two, having graduated from the university of Michigan and read law with Judge Christiancy of that state. In 1855 he formed a law partnership with Edward Salomon, which continued until the latter removed to the city of New York in 1870. The office of governor of the state having devolved upon Mr. Salomon- who had been elected lieutenant-governor in 1861 -by the untimely death of Governor Harvey, Mr. Smith was appointed by him attorney-general of the state to fill the vacancy caused by the resig- nation of Hon. James H. Howe, and in 1863 he was elected to the same office for the full term expiring January 1, 1866. In this position he acquitted himself with much credit. Mr. Smith was also a member of the Assembly in 1872, and was subsequently associated in law practice with Joshua Stark from 1869 until 1875, and afterward with Matthew H. Carpenter and A. A. L. Smith, as the firm of Carpenter & Smiths. He continued in active practice until about the year 1890, and since then has enjoyed the leisure earned by an active professional life of more than forty years.
John J. Orton was a brother of Harlow S. and
Myron H. Orton, a graduate of Yale College, and was admitted to the bar in 1846 at the age of thirty-four. He was a member at first of the firm of Orton, Cross & Orton ; in 1865 was for a time associated with his brother Harlow S. Orton, and in 1873-4 with Edward G. Ryan. His claim to distinction rests not only upon his attainments as a lawyer, but upon his record as the most fruitful litigant known to the history of the city or state.
As early as 1855 he entered upon a legal con- troversy with Josiah A. Noonan, in respect to the rights of the latter under a lease of water given by Orton's grantor for hydraulic power at Hum- boldt, then a thriving manufacturing suburb of Milwaukee. Both parties were obstinate and self- willed. The legal questions involved were com- plicated and difficult. The issues between the parties soon become personal and bitter. Actions were multiplied, many of them with the evident purpose of vexation, until the courts were burdened with the noisome strife. Both parties resorted to every possible technicality, appealing to the Supreme Court wherever an appeal was possible. The controversy in its various phases was waged with growing bitterness for more than twenty years, until Noonan was ruined financially and driven to insanity, and Orton could boast of victory and wealth as the fruit thereof.
It would be a pleasant and interesting task to sketch briefly the lives and characters of the many lawyers who have during the intervening years played a part more or less active and important in the life of this community. The necessary limits of this chapter evidently make this impossible. Besides, the theory and leading aim of the chapter is historical rather than biographical. Much the larger part of the work of the lawyer has little value as matter of history. The world cares little for the ordinary controversies between private litigants, which mainly occupy his attention. A brief mention of some notable causes which in their day awakened great public interest, both for their own importance and for the great ability displayed by the eminent lawyers who conducted them, will serve to illustrate the character of the early professional life of the city.
One of the most notable and interesting was the trial of one Radcliffe in 1851, before the Circuit Court of Milwaukee county on the charge of mur- der. The crime was committed near a public street in the city, evidently for the purpose of
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robbery. The victim was an Englishman who was about to return to his native country, having converted his little property into gold which he carried on his person There was no direct proof of Radcliffe's guilt, but a multitude of circum- stances seemed to point unerringly at him as the murderer. His character was bad. He was in the company of the vietim within an hour or less of the commission of the erime. and belief in his guilt was general.
Judge Hubbell presided at the trial. The prosecution was conducted by IIon. A. R. R. Butler, then district attorney, assisted by Hon. Edward G. Ryan, afterward chief justice of the Supreme Court. For the defense were Jonathan E. Arnold and Abram D. Smith. Mr. Butler was in his thirtieth year, having been at the bar live years. Messrs. Ryan. Arnold and Smith were all at the zenith of their powers. The trial was con- ducted on both sides with extraordinary zeal and ability. The circumstances of the crime and the great ability of the counsel employed attracted universal 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 extraordi- nary effort. Messrs. Arnold and Smith fully appreciated the intellectual power and great skill opposed to them, and the difficulties of their defense, 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 adjourned 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 eloquent 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 per- sons. 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 evi- denee 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 impassioned 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 verdict was: "May God have mercy on your consciences." One of the jury, William K. Wil- son, felt the rebuke as a personal insult, and became, in 1853, the willing accuser of Judge Hubbell to the Assembly of the state, when pro- ceedings were lodged for his impeachment.
The trial of Ann Wheeler for the murder of John M. W. Lace, a well-known citizen, committed in October, 1852, afforded Mr. Arnold another opportunity for the display of his marvelous art and skill in defense. Lace was shot down at noon upon the busiest street of the city. The act ap- peared to be deliberate, and at the time unpro- voked. Mr. Butler, the district attorney, was assisted by Hon. Henry L. Palmer, an able lawyer and the partner of Judge Smith until he went upon the bench. Mr. Arnold's defense was tem- porary or emotional insanity. There was little evidence in its support. 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 evidence was rejected. Mr. Arnold's object was gained, however, since his offers gave him the opportunity, allowed by the court, for the repeated recital in the hearing of the jury of a 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 in- vent a pretext for her acquittal. With wonderful ingenuity, Mr. Arnold framed and induced the court to give instructions so artfully drawn as to open the 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. The case was twice tried. On the first trial the jury dis- agreed. The second resulted in an acquittal "for reason of insanity."
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