USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 10
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In 1848 he was elected judge of the first circuit, composed of the counties of Racine, Rock, Walworth and Green. As circuit judge he became a member of the first supreme court of the state, and served in both capacities until the separate supreme court was organized in 1853. when he was chosen its first chief justice. He was re-elected in 1857 and served until his last sickness, which terminated in his death on the 12th of April, 1859.
All who knew Mr. Whiton concur in giving him the highest praise as a man and an officer; in lauding his character and paying respect to his ability and attainments. He seems to have been a remarkable man,
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else he could not have commanded from his associates such tributes as were paid him.
Jonathan E. Arnold, who served with Mr. Whiton as a member of the legislature of 1840-41, said of him: "Were I to name any one sphere of action in his life in which he was most eminently distinguished, and for which he had a peculiar adaptation, I should say that it was as a legislator. His varied information, strict integrity, eminent conser- vatism and finely balanced mind all combined to make him a ready de- bater and a high minded and patriotic legislator. But it is useless to name any one sphere when he has filled so ably all the positions which he has ever occupied." One who observed his career in the constitutional convention says that it was "strikingly marked by every characteristic of true greatness. He was profoundly educated, not only in law, but in the minutest details of the history of his country. Possessing a memory of unfailing tenacity, the vast stores of learning he had accumulated were ever at instant command, arranged in logical order, available to illus- trate any mooted point, either in law or political science."
Judge Whiton possessed, as a judge, the unbounded confidence of all classes of people. During his service on the bench of the supreme court the case between Bashford and Barstow, involving the right to the office of governor, was determined. The court was then composed of Whiton, Smith and Cole, all republicans. All the material questions raised in favor of Barstow, who was elected as a democrat, held the certificate of election, and was, at the commencement of the proceeding, in possession of the office, were ruled against him. He and his support- ers expressed the opinion that the court so ruled on partisan grounds. Public feeling ran high. Men went about the capitol, and even into the court room, armed; arms were stored in the capitol. The state- ment has recently been publicly made by Judge Cole that but for the implicit confidence which nearly all the people of the state felt in the judicial integrity of Judge Whiton bloodshed would almost certainly have followed the court's decision. The sober second thought of the strongest partisans led to the conviction that Whiton could not, by any possibility, be a party to a judgment rendered on partisan grounds for
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partisan ends. Though defeat was bitter, confidence in the integrity of the court, based largely on the estimate entertained of Judge Whiton's character, caused its judgment to be accepted.
The written opinions of Judge Whiton are reported in vol. 3 of Pinney's Reports and vols. 1-8 Wisconsin. These, it has recently been said by Judge Cole, do not fairly represent his powers; he was much stronger in the consultation room than with his pen. Some of his dis- cussions with his judicial associates in the privacy of that room are said to have been very remarkable for their learning and to have disclosed him as a man of extensive powers. It is a cause of profound regret to the editor that Judge Cole's health has not permitted him to carry out his purpose to prepare for this work a sketch of Judge Whiton's life and an estimate of his character. It is enough to give Judge Whiton a high place in the regard of the bar of this generation, at least, to know that that distinguished man holds him in high esteem for his judicial qualities, his learning and private character.
In his sketch on "The Supreme Court of Wisconsin" in the Green Bag, Edwin E. Bryant relates the following anecdotes of Judge Whiton. It is said that his feet were remarkable for their symmetry and smallness; that while he was not handsome in the face, a sad, far-away expression added to the plainness of his features. Isaac Woodle, one of the wits of the bar in those days, said: "If he could have Whiton's feet he would almost be willing to have his head."
It is told that while at the bar and on the circuit after he had one night retired to his bed at the tavern, a man came to his room desirous of having him take a case. The man's grievance was that he had put his horse out to pasture in the field of a neighbor at an agreed price and that a massasauga (rattlesnake) had bitten the horse so that he died. He insisted that the owner of the field was liable for the horse. Wish- ing to be rid of the fellow, Whiton said: "Can't take your case. I am retained for the snake." He was ever in general company a still, ret- icent man, apparently absorbed in his own reflections. Once, while dining at a hotel, those sitting beside him began to expatiate upon peat, large beds of which are found in the four-lake country. Some one asked
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Whiton, "Judge, what do you think of peat?" "Pete! Pete!" remarked the judge, as if startled from a reverie, "really I don't know him."
LEVI HUBBELL.
This gentleman was born at Ballston, New York, April 15, 1808. He finished his general education at Union college, from whence he was graduated in 1827. He had a brother who was a lawyer, and pre- sumably obtained his preliminary legal education under his direction. His first practice was with his brother at Canandaigua, New York. Whether he abandoned the profession for a time is uncertain, but he at least permitted his attention to be divided so far as to become the editor of a newspaper known as the "Ontario Messenger." From 1833 to 1836 he was adjutant-general of his native state, having been originally appointed by Governor Marcy. In the latter year he became a resident of Ithaca, and represented Tompkins county in the popular branch of the legislature in 1841. In 1844 he settled in Milwaukee, and became a member of the firm of Finch & Lynde. In 1848 he was a delegate to the national democratic convention, and supported General Cass as a candidate for President. In the same year he was elected judge of the second circuit, which then comprised the counties of Milwaukee, Wau- kesha. Jefferson and Dane, and at the expiration of his term was re- elected. By virtue of his circuit judgeship he became one of the justices of the supreme court and so remained until the change in the organi- zation of that body in 1853. In 1850 the justices chose him as chief justice, to succeed Stow, and he served as such until January 3, 1852. In 1856 Judge Hubbell resigned his judicial office and resumed the prac- tice of the law in Milwaukee. In 1863 he was elected to the assembly as a republican from a Milwaukee district and served in the session of 1864. In 1871 he was appointed United States attorney for the eastern district of Wisconsin and served in that capacity until 1875, when he resumed the practice of law. He died in Milwaukee in 1876, having a short time before his death fallen on an icy pavement and broken his leg.
It is said in vol. 3, Pinney's Reports, that "for a period of nearly thirty-five years, during which Judge Hubbell has resided in Wiscon-
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sin, he has been one of its most prominent citizens and one of the ablest members of the bar. Judge Hubbell is a ready, eloquent and impressive speaker, and both at the bar and on the bench he has displayed great learning and ability, with marked industry and promptness in the dis- charge of duty, and his intercourse with those with whom he was brought in contact, whether officially, professionally or socially, has ever been characterized by a courteous, kindly and graceful demeanor, which has secured for him their confidence and respect."
In his article on the supreme court of Wisconsin* Edwin E. Bryant gives the following account of the attempt to impeach Judge Hubbell: "His career as a judge was stormy. He was a man who made enemies, and an attempted impeachment in 1853 furnished the only trial that has ever taken pace in Wisconsin before the senate as the high court of impeachment. He was a prominent democrat, and his party was then in power. He was ambitious, agreeable in manners, and felt and evinced a consciousness of leadership. He gave offense to a prominent jury- mant in a case tried before him, it is told. The jury brought in a verdict of not guilty. The judge, greatly surprised at the verdict, made the remark, 'Gentlemen, may the Lord have mercy on your consciences.' One insulted juryman then vowed vengeance. Pursuing the track of rumor, he gathered in time a formidable array of material for articles and specifications, which, in the early days of the next session, were formu- lated upon his complaint in the assembly. The charges, contained in ten articles, each with numerous specifications, ran the whole gamut of official misconduct. The trial began March 23, 1853, and after issue was joined the case was set for trial June 6th, from which date until July IIth, the trial continued. The court of impeachment acquitted him by an overwhelming vote on all the numerous specifications, and the result was a triumphant vindication. Among those who voted for his acquittal were many whose reputation for probity, legal learning and judicial fairness added weight to his acquittal. The evidence, given its worst construction, showed only some indiscretions, which he freely ad-
*Vol. 9, The Green Bag.
1William K. Wilson, of Milwaukee.
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mitted, in allowing some casual interviews with suitors, which in no wise influenced his adjudication.
"Judge Hubbell had the sympathies of a large portion of the people of the state, especially the people of Milwaukee, during the trial, and his acquittal gave his friends opportunity to manifest their joy at the result. A special train loaded with a committee went out part way to 'meet him; and on his return to Milwaukee a large throng met him and marched in a triumphant procession through the streets, the like of which that city had never seen. A public reception, then a monster procession to ac- company him to his home, made the day one of congratulation and holiday parade."
MORTIMER M. JACKSON.
The birthplace of Judge Mortimer M. Jackson was Rensselaerville, Albany county, New York. He attended the schools there and at Flushing, Long Island, and a collegiate institution in the city of New York, remaining at the latter several years. In the early portion of his life he was employed by a mercantile firm in that city, and was an active member and prominent officer of the Mercantile Library Associa- tion. He studied law in the office of an eminent lawyer and advocate, David Graham, Esq., and was admitted to the bar. As early as 1834 he took an active interest in politics as a member of the whig party, and upon the organization of the republican party became a conspicuous member of it, and acted with it so long as he lived. In 1857 Judge Jack- son was a candidate for the United States senate, but was defeated by James R. Doolittle.
Mr. Jackson arrived in Wisconsin in 1838; he remained a short time in Milwaukee, but settled at Mineral Point, Iowa county, soon there- after. The country at and about Mineral Point, at the time he settled there, was the field of extensive lead mining operations, which occa- sioned much spirited and important litigation, and Judge Jackson soon acquired an extended practice and prominence at the bar. He was a graceful and interesting public speaker, and an active participant in the proceedings of the political conventions of his party. On the 26th day
Mortimer I Jackson
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of June, 1841, he was appointed attorney general of Wisconsin territory in place of H. N. Wells, and held the office until January 22, 1846. During that period he conducted many cases of public interest and of great importance in a highly satisfactory and successful manner. Upon the organization of the state government, in consequence of his con- spicuous position at the bar, extensive acquaintance, and his high posi- tion as a citizen of his part of the state, he was elected the first circuit judge for the fifth judicial circuit, then consisting of the counties of Iowa, La Fayette, Grant, Crawford, and St. Croix (the county of Rich- land being then attached to Iowa county, the county of Chippewa to the county of Crawford, and the county of La Pointe to the county of St. Croix, for judicial purposes), embracing in territorial extent more than one-third of the state, and in which there was a great amount of judicial business to be transacted, making the position an extremely laborious one, particularly in consequence of the long journeys he was required to take through the sparsely settled wilds of a new country, by the most primitive methods of travel, in order to reach the points where he had to hold court. As circuit judge he was ex-officio one of the judges of the supreme court under its first organization, and upon the expiration of the term of Judge Hubbell as chief justice he was chosen by the judges of that court to fill his place, but declined in favor of Judge Whiton, who was thereupon chosen. He continued to be a circuit judge and one of the judges of the supreme court until the or- ganization of the separate supreme court in June, 1853, when he re- turned to the practice of his profession; but in consequence of ill health and physical infirmity he was unable to prosecute his professional duties with much vigor or continuity. He discharged the duties of his judicial position with great fidelity and in the most honorable and satisfactory manner. He was dignified, courteous, faithful and impartial. The purity and integrity of his character were beyond question or sus- picion of wrong.
In 1858 he became a resident of the city of Madison, and in 1861 he was appointed to the office of the United States consul at Halifax, and held that responsible and important position in the diplomatic service of
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the country during the trying and eventful period of the recent civil war, in which his duties were of the most delicate and responsible char- acter. He met the requirements of this new position in his accustomed graceful, dignified and able manner, and was exceedingly popular in this new field of official service, in which he continued the tried and trusted servant of the United States as such consul and as consul-general of the United States for the British maritime provinces, (to which latter position he was promoted in 1880), until 1882, a period of about twenty- one years, when he returned to Madison, where he lived until the time of his death, which occurred October 13, 1889, at the age of seventy- seven years. He had lived a long, useful and blameless life.
By his last will and testament he endowed a chair of instruction in the law school of the Wisconsin university, now known as the Jackson professorship, devoting of his estate the sum of $20,000 for that pur- pose; thus in the most graceful and efficient manner linking more com- pletely his memory as a lawyer and judge with the professional and ju- dicial history of the state.
In all his social, personal and official relations Judge Jackson was eminently a polite, courtly, dignified gentleman of the old school, treat- ing at all times his associates and acquaintances with the kindest and most respectful consideration. No one possessed in a more eminent degree the respect and kindly wishes of the people than he, and it is safe to say that at the time of his death he had not one enemy in the world.
Judge .J. H. Carpenter said of his friend that "Judge Jackson was a man of remarkable purity of character. In all my intercourse with him, which was almost daily for the last eight years of his life, I never heard from his lips an expression unbecoming to a gentleman, or unfit to be uttered in the presence of refined ladies. His sense of right was very acute. His desire to do right and to deal justly with all was very marked. He would often do more than was required that he might be sure that he had satisfied the full demands of justice and right and fair dealing. He cherished no animosity; seemed to be pleased to hear of the prosperity of men with whom he had not been on friendly terms.
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He buried completely every feeling of ill will. He lived, for the last few years of his life that I knew him intimately, the life of a pure, honorable Christian gentleman. He sought to do this and he sought his inspiration from the Book of Books. He believed in the divine guidance and he sought it in humble prayer. He was a good man and a just one. He was proud of his adopted state, and wished to honor it as it had honored him. He wished to do good while he lived, and was desirous that what he left should do good after him."
CHARLES H. LARRABEE.
Judge Larrabee was born at Rome, Oneida county, New York, November 9, 1820. His father was Major Charles Larrabee of the United States infantry, who was stationed at Fort Howard at the time of his son's birth. The latter received an academic education at Gran- ville and Springfield in Ohio. He read law with General Samson Mason at Springfield, and was admitted to the bar in September, 1841. He resided in Cincinnati for a time, and, presumably, practiced his pro- fession there. In 1846 he was city attorney of Chicago, and in that year married Minerva Norton. In 1847 he removed to Dodge county, Wisconsin, and in the same year was elected a member of the second constitutional convention. He served in that body upon the committee on general provisions, comprising preamble, boundaries and admission of the state, suffrage and elective franchise, internal improvements, taxation, finance and public debt, militia, eminent domain and property belonging to the state, and the bill of rights. Throughout the conven- tion he took a leading and prominent part in its deliberations. In 1848 he was elected judge of the third circuit, comprising the counties of Washington, Dodge, Columbia, Marquette, Sauk and Portage, as then organized, and re-elected at the expiration of his term, and consequently was a justice of the supreme court until that body was reorganized in 1853. In 1852 he was the democratic candidate for chief justice of the supreme court, provision for the separate organization of which had been made; his competitor was Edward V: Whiton, who was successful.
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Judge Larrabee is quoted as saying in a note :* "To become a candi- date for Congress I resigned my seat on the bench at the urgent solicita- tion of Mr. Douglas, who wanted to show his anti-Lecomptian strength in the northwest, in view of the Charleston convention of 1860. I over- came 2.500 republican majority in the district and was elected by 1,200 majority, but was swept under with Douglas in 1860." The election referred to was to the thirty-sixth Congress. Judge A. Scott Sloan de- feated Judge Larrabee for re-election to the thirty-seventh Congress. The latter enlisted as a private in the first Wisconsin regiment, became major in the fifth and colonel of the twenty-fourth, serving on the penin- sula under Gen. McClellan and in Tennessee under Rosecrans. In 1864 Judge Larrabee went to the Pacific coast for the benefit of his health, which was restored, and remained there until his death. In 1878 he was elected a member of the convention to frame a constitution for the then anticipated state of Washington. After changing his place of resi- dence a number of times he settled in Southern California. "The public career of Mr. Larrabee, both in Wisconsin and elsewhere, has ever been in the highest degree honorable and useful. He has proved himself a gifted statesman, an able and popular judge, and his military record was in all senses patriotic and noble."" Another writer has said of him: "As a judge, he was prompt and impartial, and his written opinions bear favorable testimony to his learning and ability; he possesses more than ordinary natural ability; is an impressive public speaker; his manners are free, affable and popular, and is zealous as a partisan and warm and devoted in his friendships."# Judge Larrabee's published opinions are reported in vols. 2 and 3, Pinney's Reports. His war record is thus sketched by the gifted pen of General Edwin E. Bryant: "When Sum- ter was fired on he offered his services to Governor Randall. On the 17th of April (1861), he entered in the Horicon company, the speedy en- rollment of which he hastened; but before that regiment had mustered he was selected for the place of major in the fifth Wisconsin. In this regiment he served with distinction in the army of the Potomac in the
*Reed's Bench and Bar; presumably the note was addressed to Mr. Reed.
¡Fathers of Wisconsin, p. 238.
#Pinney's Reports, p. 618.
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Peninsula campaign. He served in General Winfield Scott Hancock's command, who wrote to the secretary of war commending him highly as one 'eminently fitted to command troops,' and recommended him for a brigadier general. He particularly distinguished himself on several occasions, especially at Lewinsville, Lee's Mills, and at the battle of Williamsburg. In the arduous campaign up the Peninsula the major's constitution was much broken. On the 25th of July he was com- missioned colonel of the twenty-fourth Wisconsin. He came home and recruited for that regiment in his old district-a portion of the state where was much opposition to the war-and brought in men enough, it was said, for four regiments. He enlisted, as stump speakers to plead for enlistments, old democratic wheel-horses, like Matt. H. Carpenter, Henry L. Palmer and Edward G. Ryan. He served with that regiment for one year, participating in the battles of Perryville and Chaplin Hills with great credit to himself and command. But his health was so shat- tered by service in the Chickahominy swamps that he was compelled to resign. He left the service with high commendations from General Rosecrans, General Philip H. Sheridan and other commanders under whom he served."
Judge Larrabee came to his death January 20, 1883, being one of sixteen persons killed or burned to death by the plunging of a train down an embankment after it had run about four miles down a steep grade. He was returning to his home from a visit to San Francisco at the time.
WIRAM KNOWLTON.
Wiram Knowlton was born in Chenango county, New York, January 24, 1816. He became a resident of Wisconsin in 1837, his father's family locating at Janesville, and read law with Parley Eaton, of Mineral Point. His first practice was at Platteville, Grant county, whence he removed to Prairie du Chien. While there he became captain of a com- pany he raised for service in the Mexican war, but which was assigned to duty at Fort Winnebago. In 1850 the legislature created the sixth judicial circuit out of the then counties of Crawford, Bad Axe, St. Croix
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and La Pointe. The election for circuit judge was held on the first Monday of July, and Mr. Knowlton was chosen. He served the full term of six years, and until the separate organization of the supreme court in 1853 was a member of that tribunal. His opinions are reported in vol. 3, Pinney, and are indicative of at least average ability. One of the most important of them is that in Oshoga vs. State, p. 56, in which it was ruled that a grand jury might lawfully be summoned at an extra jury term of the court appointed under the statute. The validity of an indictment found by a grand jury impaneled at such a term was ques- tioned by Messrs. Cole and Biddlecome. The order appointing the term and directing the venire for a grand jury was made by Judge Knowlton, whose vote in the supreme court was necessary to the affirmance of the judgment, Judges Larrabee and Whiton holding that the court had no power to direct the summoning of a grand jury at an extra jury term. The propriety of Judge Knowlton's sitting in that case appears not to have been questioned, but inasmuch as the defend- ant had been convicted of murder, it may be doubted whether it would not have been more in accordance with the fitness of things if he had not done so.
Judge Knowlton died at the age of forty-seven, on June 27, 1863, at Menekaune, Oconto county, Wisconsin. There seems to be little known of him from 1856 to that time, except that he practiced law for a short period at Prairie du Chien. It is said of him in the sketch of his life in vol. 3, Pinney's Reports, that "he was a man of good natural talents and discharged the duties of his office with commendable ability ; and his judicial integrity was unquestioned." Moses M. Strong has said, in his biographical sketches of deceased members of the bar, that "Judge Knowlton was not a great lawyer, but a good man, and of un- swerving integrity and a large share of common sense, and as a judge was very acceptable to those men interested in the discharge of his duties. He was afflicted with the unfortunate habit of the intemperate use of intoxicating drinks, but had the faculty of discriminating between those which were adulterated and the pure. In a suit before him in St. Croix county to recover for a bill of adulterated liquors he charged
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