USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 17
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After the witnesses had all been examined, the arguments of the defendant's counsel were entered upon. Judge Hubbell was ably de-
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fended. Mr. Knowlton began his remarks upon the 5th of July and occupied two days. He was then followed by Mr. Arnold who fin- ished his address in one day. The first argument for the prosecution was made by H. T. Sanders, one of the managers, followed by Mr. Ryan who closed the case.
Upon rising to make the closing argument, Mr. Ryan asked the indulgence of the court, as he was laboring under great physical dis- ability, and then commented upon the ground taken by counsel for de- fense that there was hardly a precedent for the employment of an attor- ney by the prosecution to manage the trial on their part. Then he added: "We have been told that the people of this state believe that not. Levi Hubbell, judge of the second judicial circuit, but the prosecution in this case, are upon their trial in this cause." Then he began the fight on the skirmish line by asking: "Who are the prosecution?" and by an- swering: "The sovereign people of this state, in all its length and in all its breadth, as represented in their sovereign capacity upon the other side of this capitol, the assembly of this state, trusted, and trusted alone . by the constitution of the state with the power of impeachment; their honorable managers representing their constitutional power and per- forming their constitutional duty in this court; and last and least of all, I, their humble counsel; we are upon trial, not Levi Hubbell, judge of the second judicial circuit!" "And what are we upon trial . for?" he asked. "What is the charge against the sovereign majesty of the people ?- That they have dared to arraign Levi Hubbell here for his judicial corruption. What are the honorable, the assembly, here . upon trial for? That they have dared to call Levi Hubbell to account. ยท What are the committee of managers, who have discharged their duty, - in honor, here upon trial for? What am I here upon trial for? Who is the delinquent here by the proofs in this cause? Who is the criminal here? Whose character is upon the rack of proof? Sum up the whole of this cause, take one solid, concentrated view of all the truth and fact here, and tell me whose heart is stained with guilt? In whom does this evidence bare to the world a perverted mind and an unclean heart? Aye, who is upon trial here?"
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"Is it," he continued, inquiringly, "that a little brief authority, is it that a little popularity, an accidental, perverted, vicious popularity, a popularity which is done and ended, lifts a criminal above account- ability, prompts him to turn in vindictive threats upon his constitutional accusers, to impeach the authority of the people, the constitutional authority of the land, and turn like a dog to bite the hand that fostered, raised and fed him, when it is raised to chastise him? And are we here to fall? Yes, we cannot withstand it! A tornado of destruction is to overwhelm us! There is in God or man no salvation for us! They shall fall! That is the emphatic use made of the future tense by the counsel!"
"And what," he asked, "is this tornado-the threat was passionate and vindictive, but vague and shadowy-what is this tornado which is to overwhelm the assembly, their committee and their counsel? Is it lynch law? Is that law to arise in the land at the bidding of one of the judges of this land? Is lynch law to rise up and shelter him because he is proven to have outraged the ordained constitution and law of the land? Is it invoked here because by the spirit of no other law can he escape the judgment of his guilt? Is that the threat? Or what else is this tornado before which we must fall? Is it assassination by the bullies who surround this defendant? Is it perjury which is to follow us into his corrupt courts, with corrupt judgment following upon it to destroy us before God and man, to sweep us from the face of the earth? Or is it a tornado of opinion only? Whence does it come? Where in this broad state is that voice heard from? I will tell you, and I will tell you plainly, and I wish the counsel was in his place to hear me. It is imported here into the senate chamber from the dram-shops, the brothels and the hells of Milwaukee. That is where it comes from. It is the voice of corruption mourning for its chief. It is the voice of vice mourning for its champion."
The counsel for the defense described some judges as cold, misan- thropic, unsympathizing, but declared Judge Hubbell to be of a dif- ferent organization. The answer of Mr. Ryan to this was this arraign- ment of the defendant. "He tells us," said he, "that the defendant is of a peculiar organization; open, frank, polite, generous, confiding, social, sympathetic, anxious to conserve, seeking it where it is not
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sought, too sensitive to repel approach. He tells us that repeated solicitations met his client daily in his judicial walk; and that though conscious of the wrong, he was too polite, too easy, too accessible to repel them. He tells us that his friend could not assault those who so beset him, and he would not rebuke them; in effect that he had no moral power to repel corrupting approaches and corrupting influences. That is the counsel's analysis of the character of the judge of the second judicial circuit whom he defends as his personal and judicial friend. I believe that his estimate is within the truth. A frank character that can repel no approach, rebuke no advance, resist no corruption! Mr. President, change the sex and what character has he described? Easy virtue has no sex. That character which makes a woman a wanton, makes a man an easy prostitute to every vice without a sex. Chastity of mind is as essential of men as chastity of passion is to women; and I say in bold commentary on the character given by the counsel to his client, that harlots are of both sexes and of all conditions in human life."
And he further added: "A judge of easy virtue, approaching and ap- proached, solicited and soliciting, lending a judicial ear to whispers which tamper with judicial virtue, approaching and retreating by turns, with a rare mockery of judicial virtue on his tongue; promising to set aside verdicts, hinting the vacating of judgments, suggesting settle- ments for his friends, dissolving injunctions before they are issued, chambering in private with jurors in jury room, suggesting nolle prosequis to district attorneys to favor his friend's friend, who was ac- cused of the simple impropriety, the naked indiscretion-that is the word in this cause-of adultery; divorcing women and instructing them in the principles of divorcing in sacred privacy, promising to bring on causes for trial when the proper evidence on which they were founded was lost; tampering with the penal judgments of the law; when money was payable into court, offering to receive part into his own particular pocket, instead of the whole into court, as required by law; advising suitors what course to take, in order that he might help them to accomplish their ends; so solicited, as a system by his special friends, that they cannot remember the times or the causes in which they sought
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to prostitute his judicial virtue, and yet, never met with repulse; re- fusing to hear argument in court in order to keep his promise made in private."
Mr. Ryan, in speaking upon the admission by the defendant's coun- sel that the conduct of Judge Hubbell on certain occasions was only indiscretions-attributes of his peculiar character-said: "I do not know, Mr. President, but there may be characters so peculiarly consti- tuted that crime cannot attach to them. I have heard lately, Mr. Presi- dent, of moral insanity; I have learned lately of the doctrine of moral insanity, a new and pretty name for moral depravity; there may be char- acters so framed that crime cannot attach to them, and I suppose that this is the soul of the argument here. There may be moral obliquity which cannot see the wrong. There may be a moral organization in which right and wrong are mixed up in confused mazes without power to distinguish between them. That may be moral insanity.
"But, Mr. President, I have to say at once here, of all moral insanity, of all moral obliquity, which is set up as a defense for guilt, that such moral insanity, such moral obliquity, comes not from God, but from the abuse of the constitution which God gives to his creatures; it comes not from heaven but from the abyss. It comes from the abuse of the faculties, and is not inherent to the use of them. The disease of a faculty is insanity; the disease of a propensity is guilt. And I have to add to this defense of peculiar organization, that if it be true, as is avowed by his counsel here, that the judge of the second judicial circuit is of that character that he cannot avoid judicial impropriety, judicial indiscretion; if that is the best defense that can be made for him here, that he is of such a peculiar organization that he cannot avoid such things as are here charged and proved upon him, and is therefore not responsible, I say that the second judicial circuit has enjoyed that kind of character quite long enough and is entitled to be rid of it. That is a defense that he is so unfit for his office that he is not to be removed for the abuse of it.
"Mr. President," said Mr. Ryan, in commenting upon some of the indecent acts with which the defendant was charged. "it is said that he
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who lays his hands upon a woman save in the way of kindness, is a brute. I say more: he who puts his hand upon a woman, even in kindness, save in that kindness which is authorized by the relations between them; he who lays his hands in the unauthorized instinct of sex upon a woman, insults and wrongs her. I speak not here of bestial assaults upon the sanctity of woman's person. I care not whether man's arm be thrown gently around the waist, or man's hand clasp the hand of woman; I care not what the imposition of hands may be; if it be the imposition of sex unauthorized by the relations of the parties, or the free consent of the woman first given, it is a brutal assault. It is the assault of lust upon the outworks of chastity. It is an attempt to debauch. Mr. President, God has made man strong and woman weak. Mr. President, the same God has made human society dependent on the chastity of woman, and on man's faith in it. Take chastity from woman, and family, kindred, and home become things unknown amongst men, as unknown as amongst the beasts of the wilderness. What protects society? What upholds the purity of woman, which is the life and being of woman upon this earth? Ruled by the laws of mere physical force. they walk upon the earth subjects of man's passions, as a man walking in the wilderness of Africa is the subject of the untamed appetite of the wild beasts who roam there in the supremacy of brute force. But God has given to woman a chastity of being that men worship like an idol. God making woman weak in body, has made her strong in purity; and she walks this earth with all the master strength and undisciplined passion of men about her, and yet walks and will walk this earth for all time, free and secure in her native modesty, unapproached save in honor, unsullied even in thought. That is God's charter to woman-that is her guard on earth. And the man, I care not who or what, unlicensed by any rela- tion of legitimate affection, claiming no father's, no brother's, no son's, no husband's, no recognized and accepted lover's rights; the man who in the effrontery of passion, or the disguised approaches of passion, but raises his hand toward her, aye, but looks his lust to her, is a brute who outrages not merely her, but outrages all the sanctities of human nature in her person."
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This is the manner in which Mr. Ryan defended the legal profession, while he was speaking of the charge against Judge Hubbell that he had declared to a young attorney that he must not defend a certain person in his court: "He tells the bar, by the God of Heaven! whom they shall take for clients! He tells the world that no lawyer at his bar shall hold his favor if he dare to advocate the cause of those in his displeasure. I tell you, sir (turning to the defendant), that when you dictate to the bar you do not know the bar. I am proud to say it to you, face to face, before this solemn court, that you do not know the spirit of the legal pro- fession. You may have been of it longer than I who say it, but you have not belonged to it long enough to learn the high and honorable spirit of the profession. To -dictate to an honorable young lawyer whom he shall take for his client, whose legal rights he shall assume to advocate! The legal profession has done many bad things and has produced many bad men; but it is a glorious old pro- fession, and I love it and am proud of it. It may do in these days for demagogues to denounce it; but I say now and always, here and else- where, what all history proves, that there was seldom a great stride made in human progress in which the bar was not a moving power. It is an honorable profession, an independent profession. No judge has ever cowed it or broken its independence. Touch its independence and it rebels to a man, shoulder to shoulder, standing up against the invasion of its rights. A corrupt judge may disorganize it; but a tyrannical court can neither bend it nor break it. The relation of a lawyer to his client is a peculiar and important one. Life, character, liberty, prosperity, all that is dear and sacred in life, are the trust of the client to his lawyer. The world may assail; the world may persecute; death and ruin may overhang; all men may desert, but the unfortunate is secure in the zeal and loyalty of his advocate. And this is the relation the defendant tampers with; this is the profession he seeks to bend to his caprice or his ambition."
The summing up of Mr. Ryan was as follows: "There is," said he, "but one of two things for this court to do; to license this shameless prostitution of justice, or to end it at once and forever by its judgment.
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There is no other alternative. You can hope nothing here from the penitence of guilt exposed: you can expect no lesson to such a defend- ant from such a trial, except in the judgment. Exposure and shame have no power upon a man who sees honor in his dishonor, virtue in his vice, purity in all the uncleanness of his mind, health in his rotting corruption, unshocked by all this array of guilt, any escape from justice would be a triumph to him. Honorable acquittal he cannot have, and does not hope. Any escape from judgment would send him back upon our unfortunate circuit, exulting in the self-complacency of unconvicted guilt. The parasites of corruption would cry aloud in triumph at his escape by any means. You see it in this defense. His friends, his satellites, his conscience, approve of all that is here in proof. They have not the grace to claim acquittal as a mercy ; they insult the court by claiming it as justice. They ask you to send forth this defendant with all this load of unblushing guilt upon him, as the standard of judicial morality which this court is to erect in this state. They say there is here no wrong, no sin, no guilt, no impropriety, no corruption, which shocks their conscience or should reach the conscience of the court. That is their sense, that is the defendant's sense, of a system of judicial conduct, which I dare not undertake to describe in my own language. Shakes- peare was a prophet. When he wrote his half inspired book, the race of prophets was not entirely gone. His language, bold and high wrought as it is, is literally true of the administration of justice in the second judicial circuit of this state, centuries after the great describer of the world had passed from the earth:
" 'I have seen corruption boil and bubble till it overrun the stew. Laws for all faults-but faults so countenanced, that the strong statutes stand like the forfeits in a barber's shop, as much in mock as mark.'
"And here is the wellspring of corruption before you. Here is the author, the minister, the father of all this corruption, pluming his feathers before you, pluming himself in the face of all this proof; spreading his feathers and strutting in the sight of the world, as a man without spot or stain, as a pure and immaculate judge.
"The assembly of the state of Wisconsin." added Mr. Ryan, "speak-
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ing here in my voice, rely upon the justice and integrity of this court. They ask you to give here true and honorable judgment, article by article, fact by fact. As I said in their name in the beginning, if inno- cence be here, dishonor no hair of the defendant's head. If guilt be here, suffer no one act of guilt to go unpunished, to disgrace the fair name of the state for all time. Article by article, fact by fact, give true and faithful judgment. Vindicate the holy name of public justice. Purify the temple of the law. Say to this judge at your bar: 'You are un- worthy to sit at the judgment seat; you have abused, dishonored and polluted it; you have made it the seat of passion and vice and guilt; you can no longer profane it; go forth from it.'
"And if you do so, I say to you, in answer to all the threats which guilt has dared to make here to justice, to all the tornadoes of opinion which have been threatened here against all who act in bringing cor- ruption to the constitutional judgment of the people, there will come forth throughout the length and breadth of this state a voice of hon- orable approbation, the echo of the pulsations of the great, honest, pure heart of this people; not insulting fallen guilt, but vindicating the judg- ment of truth upon crime; consecrating in the popular heart a just judgment-a judgment vindicating the majesty of the law, the maj- esty of truth, the majesty of right."
From these somewhat extended extracts, taken almost at random from Mr. Ryan's argument, the reader, we doubt not, will conclude with us that, for its power, its comprehensiveness and its lofty eloquence, it ranks with the greatest efforts of the kind on record.
Mr. Ryan continued his residence in Milwaukee until the period of his death, except when under the necessity of living at Madison in the discharge of his duties in the supreme court, hereafter to be more par- ticularly mentioned.
In the early part of March, 1854, a fugitive slave case greatly excited the people of Wisconsin. A brief description of the capture of a slave named Joshua Glover, of his rescue and of the proceedings which fol- lowed, resulting in the arrest, conviction, and imprisonment of Sherman M. Booth have already been seen in Chapter II. The owner of the
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slave, B. S. Garland, of Missouri, employed Mr. Ryan as attorney for the prosecution. It is needless to say that he sustained his reputation as an able lawyer, although on the unpopular side of the case.
Although an uncompromising democrat in his political faith, yet Mr. Ryan could, when occasion required, rise far above all the tram- mels of party into the purer atmosphere of patriotism. An example of this is furnished by his course in the celebrated case of Bashford vs. Barstow. On the 7th day of January, 1856, William A. Barstow took and subscribed an oath of office as governor of Wisconsin. But his op- ponent at the polls-Coles Bashford-decided to contest his right to the office. The grounds for the contest were alleged false returns made in several instances. Mr. Ryan was retained by Mr. Bashford. The case ended by the supreme court awarding the office to the latter. Ryan, with many others of his party, were indignant that one not elected should be installed in the office of governor by his party associates. As the most distinguished counsel and eloquent advocate of the party, he stepped boldly to the front, denounced the wrong and outrage in the most scathing invective, and successfully conducted the legal proceed- ings necessary to right the wrong and vindicate the constitution and the rights of the people of the state. His action resulted in placing a political opponent in the chief executive chair of the state; but it was a triumph of truth and right over an attempted fraud, and a vindication of the right of the people to have their voice respected. This was his chief reward .*
*The chief contention on behalf of Barstow was that the question of his right to the office of governor had been conclusively settled by the state board of canvassers, and that the supreme court could not go behind the certificate of election issued pur- suant to the determination of that board. It was also contended that the court had no jurisdiction of quo warranto in such a case. Ryan said: "In this world there have never been but two kinds of governments-a government of force without law, and a government of law without force. In the main, the governments of the world have been governments of force without or above law. We complain of and criticise and grumble at our system of government. The truth is, it is far above us. We are not educated up to it within a century. Here the law is the mere letter. There are no embattled armies to enforce it. It is a mere word, acting by its own vitality. How shall this system be preserved? Only by the universal submission of all men, high and low, strong and weak, the highest official as well as the humblest member of the community, to that simple letter paramount and supreme."
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In 1862, when war was upon us, when military arrests at the north of southern sympathizers were frequent; and when the writ of habeas corpus, if not suspended, was at times disregarded, the democratic state convention met, and Mr. Ryan presided as chairman of a committee of four to draft an appeal to the people of Wisconsin, which is known as the "Ryan Address," which was adopted by the convention. It de- nounced, in the severest terms, secession and sustained the war for the suppression of the rebellion; but it attacked what it called the arbitrary acts of the administration. Public opinion was generally denunciatory at the north as to the propriety and policy of this "address."
"The defeat of the democratic party in 1860 has been followed," said Mr. Ryan, "by the revolt of several of the states from the Union, and by the present terrible civil war, because it was defeated by a secessional party. We reprobate that revolt as unnecessary, unjustifiable, unholy. Devoted to the constitution, we invoke the vengeance of God upon
John W. Hinton, a long-time friend of Mr. Ryan's, has said in a public address on the latter that Ryan's argument in Bashford-Barstow case disclosed his honesty and personal superiority over party spirit or its influences; and never did a party re- ceive a worse flagellation at the hands of a brother member than did the upholder's, the aiders and abettors of the Barstow frauds receive from him. His lashings were merciless, while his indignation knew no bounds; the denunciation of those who defended those frauds was fearful; the force of his invective, the caustic charac- ter of his comments on the conspirators had never been equaled, their like had never been heard in the supreme court room or elsewhere in this state. A part of the peroration of his closing argument is given: Here we find men holding official sta- tions privy to a well established fraud and forgery, and we are told the attempt to ex- pose and right the wrong is a dangerous attack upon the independence and co- equality of a sovereign department of the state government. What is popular govern- ment worth if these things are to be? What is the condition of public morals in this state if such things are tolerated? It is a grievous reproach on the whole state, a bitter and terrible reproach that any man can be found to claim the meanest and low- est office-even that of fence viewer or dog killer-on such frauds as these. Office has no such charms as to counterbalance such contamination. I would rather be the tenant of any cell in any jail of this state than to hold any office, even the highest in the gift of its people-the highest in the gift of the world-on such frauds as these. I would rather surrender my citizenship-I would prefer to surrender it vol- untarily-but I would surrender it, if there were no other way, by the commission of some crime-not too bad-rather than hold an office by so rotten or base a title as this. When it comes to pass that office is held on such a basis, it is an insult, a loud and crying insult to the public morality of the people of the state. What should we say of the moral sense of a people where men and women were permitted to walk
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