USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 21
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"The sudden death of Judge Taylor, of which the memorial and res- olutions of the bar just presented to the court make mention, produced throughout the state, when announced, a feeling of deep and sincere
sorrow. He was apparently in the enjoyment of perfect health and in the full possession of all his mental powers when he left his desk, on the third of April last, after his work for the day was done, and went to his home in this city, and within the brief period of an hour was dead. A death so unexpected of one who occupied his responsible position and who was so eminent, able and just in the discharge of his official duties, was well calculated to shock the public mind, as it did, and im- press all with a sense of the great loss the state had sustained by his re- moval from earth. And this sense of loss has rather been increased than
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weakened as the sad event has been considered by all thoughtful citi- zens. Indeed, the death of Judge Taylor, occurring as it did, would be regarded as a public calamity in any state or community. He was cut off in the midst of his great usefulness, when his services were as valuable and important as they ever were to the people of the state.
"He was as conscientious and faithful a judge as ever occupied the bench in any country at any time; and all know how with heart and soul he endeavored to do his entire duty in his office. He was universally respected and admired for his pure life, his integrity of character, his independence and tireless industry. To him severe mental labor seemed to be a joy and delight. He certainly never shrank from any, however toilsome. There is probably not a member of the bar, perhaps few citizens of our state, who do not know of the laborious habits, the complete devotion to duty, which marked his life. And in him, too, the love of justice was almost a passion and controlled his whole conduct. He strove to do right and to render exact justice to all, regardless of all personal considerations. This spirit is manifested in all his opinions. He was patient, careful, and thorough in the examination of causes, solicitous to master every fact and circumstance, and evinced an un- conquerable purpose to decide them upon the merits, according to prin- ciples of law and equity. He had no fondness for technicalities, and pushed them aside when they stood in the way of doing substantial justice. His mind was practical and solid rather than brilliant, and he sought to adapt legal principles to business affairs and the condition of society in our state. There is nothing eccentric or visionary in the views which he took of all questions, and he eminently was
" 'Rich in saving common sense.'
"He possessed, as he deserved, in a high degree the confidence and respect of the people of the state, who well knew his great worth of character as manifested in many ways. To his brethren in the con- sultation room his loss is irreparable, for his place cannot be made good by anyone. He was so careful and exhaustive in his investigations, was
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actuated by such a strong love of justice and right, was so anxious to apply correct principles to every case, so able to unravel the most diffi- cult subject, united with a manner of stating his conclusions with clearness and freedom, that he was listened to with increasing respect in all our deliberations. Besides, his assistance in the decision of cases was especially helpful because he had practically aided in making three revisions of the general statutes, that of 1858 and that of 1878, also pub- lishing his own revision in 1871 (for that is what it amounted to), in which he pointed out the changes that had been made from time to time by the legislature. It is therefore but simple truth to say that there is probably no man in the state whose knowledge of the local law could be compared with his for fullness and accuracy. And this great familiarity with the statutes enabled him, as one will readily under- stand, to render most invaluable aid in considering and deciding cases, so many of which turn upon the meaning or construction of a private statute or a general provision of law.
"It is needless to say that Judge Taylor came to this bench amply prepared for the work which he had to do. His diligent professional studies and his experience on the bench of the circuit court had stored his mind with the principles of jurisprudence, and he had acquired the ability to apply them to legal controversies. His knowledge of the law was profound, and he was justly considered one of our ablest judges. This is not the time to speak of the value or the merits of his published opinions. But it is safe to affirm that no one can read them without being impressed with the wealth of learning and research as well as the vigor of reasoning which mark them.
"We close this imperfect tribute to his memory with the remark that an able judge, a patriotic citizen, a good man, has closed a life of singular purity and usefulness, leaving behind an untarnished reputa- tion and an example which all may imitate."
HARLOW S. ORTON.
The birthplace of Harlow S. Orton was in Niagara county, New York; the time November 23, 1817. His father, Harlow N. Orton, M.
14
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D., was a native of Vermont, and his mother, Grace Orton, nee Marsh, was born in Connecticut. His paternal ancestors migrated from Eng- land in the middle of the eighteenth century, and his maternal progen- itors were of the early Puritans of New England. The members of both branches of the family were enlisted in the service of the revolu- tionary war. Both of his grandfathers were Baptist clergymen, who shouldered muskets and fought for liberty and independence.
Judge Orton was educated first at the common schools, and later at the Hamilton academy and Madison university in his native state, receiv- ing at the latter institution his degree of graduation. Upon leaving the university he became a school teacher in Kentucky, and while thus en- gaged, in 1837, began the study of law. In the same year he left Ken- tucky to join his brother, Myron H. Orton, late of Madison but now deceased, who was then practicing law in La Porte, Indiana. At that place, in 1838, he was admitted to the bar, and began to practice in the northern Indiana circuit. He became deeply interested in the political campaign of the year 1840, and was enlisted into the service as a speaker in several of the states of the Union, making nearly one hundred speeches advocating the election of General Harrison. In 1843 he was appointed probate judge of Porter county by the governor of Indiana. In 1847 he moved to the territory of Wisconsin and commenced the practice of law in Milwaukee.
In 1852 he became private secretary of Governor L. J. Farwell, and moved to Madison, his last residence. In 1854 he represented the Mad- ison district in the assembly. In 1859 he was elected judge of the ninth circuit, and was subsequently re-elected without opposition. He re- signed that office in 1865 and resumed the general practice of his pro- fession. In 1869 he was again elected to the legislature, and was re- elected in 1871. In 1876 he was the candidate of his party for Congress, but was defeated in a republican district by a few votes. In the same year he was appointed one of the revisers of the statutes of the state. From 1869 to 1874 Judge Orton was dean of the law faculty of the university, and during his term of service as dean the degree of LL. D. was con- ferred upon him. In 1877 he was elected mayor of Madison, and served
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one term. From 1870 to 1878, the time of his election as justice, he was the senior in the law firm of Orton, Keyes & Chynoweth.
Upon the reorganization of the supreme court, by the addition of two justices thereto, he and David Taylor were elected to those posi- tions, and took their seats in April, 1878. On the retiracy of Chief Jus- tice Lyon, Judge Orton succeeded him as chief justice. This was in January, 1894, and that position he occupied until his death. Among his last public acts was administering the official oaths to the state of- ficers on their inauguration, January 7th, 1895. Shortly after that date he had sat for the last time upon the supreme bench, though he lived in daily hope of soon resuming his duties there. His death occurred at his home in Madison, July 4, 1895.
Politically, Mr. Orton affiliated with the whig party until 1854; since then he has been an independent democrat, but he never identified him- self with politics while on the bench and never allowed his decisions to be affected by partisan lines.
The foregoing is, with but little variation, from the address of E. W. Keyes to the supreme court on the presentation of the memorial of the bar on the death of Judge Orton. After speaking of the latter's interest in history, literature and art and of his family, Mr. Keyes said:
"To sum up the career of this great lawyer and able judge, it can truthfully be said of him that he filled faithfully and well every position assigned him, as if he had inscribed upon his heart the words of the poet, 'Act well your part, there all the honor lies.'
"Judge Orton was a remarkable man; he possessed a high order of talent and ability. But in the first place I wish to speak briefly of those qualities which found expression, as a friend and neighbor, in the every- day walks of life. In his intercourse with the people of every class he was gentle, sympathetic, and kindly, and he was gallant and courteous in a strong degree. His radiant smiles and his ringing, cheery voice were in themselves mediums of encouragement and hope to all who came within the circle of his presence. He was natural and true, the same yesterday and to-day; and his genial manners, wherever he might be, were as a ray of sunlight to clear away the clouds. His demeanor
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was peculiar to himself. He was fashioned in a mold of his own; there was no one like him. His geniality was proverbial. He was a born actor, and in his style there was evidence at times of the natural attri- butes of tragedy and comedy. In his step he was light and active; his movements were graceful and dignified; and he ever evoked, in his per- sonal presence, the admiration of those with whom he came in contact. He was democratic in the highest and truest sense of the word; he was emphatically one of the people. His feelings and sympathies went out strongly and in no mistaken terms in behalf of the poor, the suffering, and the downtrodden, as against injustice and oppression in whatever form they might appear. And he was always ready to lend a helping hand to relieve the distressed, to strengthen the weak, and to give words of hope and encouragement to those who were despondent and in trouble. These noble and manly qualities, so characteristic of Judge Orton, were given manifestation, in a greater or less degree, every day of his life. His greetings to friends and neighbors were cordial, sincere, and came from the heart. The magnetism of his presence, the shake of his hand, would seem to impart his own impulses and to gladden the heart with pleasure almost unaccountable. The manner of his inter- course with his fellow-men, of high or low degree, was always the same, prompt, cordial, and genuine. There was no selfishness in it. He sought not to ply the arts of the intriguer or politician, to reap benefits therefrom. It was all spontaneous with him, the natural outpouring of his sincere and generous nature.
"While, at times, he seemed inexorable in his ideas of propriety, jus- tice, and right, and perhaps was subject to the charge of severity, still he was always reasonable and ready to modify his views and opinions, of a personal or general nature, to correspond with those of his friends and associates, when such modification required no sacrifice of prin- ciple. He was a man of firm and lasting friendship, true as the needle to the pole, and while he was inapt to be presumptuous or to crowd himself forward in his association with others, yet he enjoyed in a high degree close and intimate companionship.
"It is true, however, that he lived much within himself, keeping
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closely within the family circle, and was disinclined to society in its ordinary course. Still his sociability and fraternity were strongly de- veloped and cultivated by him on all possible occasions.
"Judge Orton had a high sense of honor. He could not tolerate a mean or dishonest action in any one, and when knowledge of such conduct came to him he would denounce it in language forcible and strongly condemnatory.
"In his family, with wife, children, and grandchildren, he was ever kind, tender, and affectionate. It was here in this hallowed presence, in the latter years of his life, when not engaged in official duties, that his time was mostly spent. His devotion to her who, with him, had passed the half-century line of wedded life, was touching in the ex- treme. During the months of his ill-health, when confined mostly to his house, he seemed to live and move and have his being in the gentle ministrations of his fond and faithful wife. The mutuality of love and affection between them during the trying ordeal that ended in death was most beautiful to behold. Like lovers, hand in hand, they had passed along the road in the journey of life, until, weary with burdens, the tired footsteps of one sought the haven of rest which is ready for us all."
Justice R. D. Marshall presented to the court the resolutions of the bar of Chippewa county, and said, in part:
"The worthy life and distinguished public service of him whom we . all here honor constitute an important part of the history of our com- monwealth; this sufficiently appears and can be readily comprehended when it is considered that more than half the work of this court since its organization, as evidenced by the published reports, has been per- formed since Justice Orton's accession to the bench.
"I enjoyed his acquaintance for a considerable period of time, and came sufficiently within his circle to become sensible of his intellectual power, of his sturdy and noble manhood, his keen sense of justice, and his ready disposition to sweep aside all barriers that stood in the way of meting out exact justice between parties. Perhaps the time has not yet arrived to express justly an opinion of his judicial work, but when
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it does, I venture the assertion that it will be clearly revealed and said of him that he was exceptionally free from the trammels of mere legal technicalities and existing opinions which fell below his high concep- tions of those immutable principles of justice which measure out to and protect each in the possession and enjoyment of his just share of the pleasures of life, liberty and property; that he did as much, at least, as any of the distinguished men who have made the history of the jurisprudence of this state to abolish in fact, as well as in form, all distinctions between law and equity, to free our jurisprudence from the restraints of all technicalities and precedents that would otherwise stand in the way of the perfection of a system combining common-law methods with equitable principles, and to bring the law as a whole into complete harmony with justice and equity; that in this respect he made a mark upon the history of the jurisprudence of this state that will not fade away.
"He lived beyond the allotted time of human life, active in public work till near the last, and it may well be imagined that he was so far weary of the intense activities and exacting duties of his position that without regret, except at leaving those he loved, he submitted to the mysterious boatman to cross the dark river into that perfect rest of the eternal shades beyond, where we may reasonably hope an impor- tant element in the perfection of his joy is the consciousness that all men here revere his memory, award him a high place in the temple of human fame, and bear witness to his strong, deep but tender nature, his eloquence as an advocate, his high conceptions of official duty, his intellectual power, and the characteristics which rightly class him with the great men of our state and nation. Well may it be said that he left no stain upon his name, that death came to him not as an inter- ruption but as a climax, his career constituting, as it were, a finished course, leaving little that can be regretted except that his valuable life could not have been prolonged and his labors continued; but a wise and mysterious Providence decreed otherwise, and removed him be- yond the vale, leaving to us the memory of his honesty of purpose in
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all the walks of life, his distinguished public career, the nobility of his manhood, and that will live on and and on, in this respect :-
'Immortality o'er sweeps All forms, all tears, all times, all fears, and peals, Like the eternal thunders of the deep, Into our ears the truth, he lives forever.'
"May we long feel his influence in his accustomed place, seek wisdom of him as if he were here by drinking at the fountain of his creation! Thus, though it is written he is dead, he will ever be with us to labor in the lines he loved and to sustain those principles of justice among men he maintained in life so long, so faithfully, and so well."
Former Chief Justice Orsamus Cole stood before the bench on which he had sat for nearly thirty-seven years and said of his associate there:
"May it please the court .- I have been requested to make some re- marks on this occasion on the late Chief Justice Orton,-a request with which I willingly comply, though with a sad and chastened spirit. Indeed, my natural feelings, without such a request, would have prompted me to say something, if permitted, to pay some tribute of respect and honor to the memory of a man with whom I had been as- sociated for some twelve or fourteen years in the discharge of those important duties which the laws and constitution impose on the mem- bers of this court, and one for whom I entertained sincere personal re- gard to the day of his death. I speak for myself, as well as for a friend, a former member of this court, now in a distant state, who can only be present in spirit at this solemn session. [The reference is to Judge Lyon, at the time on a visit in California.]
"I shall attempt no eulogy on the deceased. That duty, I doubt not, will be performed, and well performed, by others. Nor shall I at- tempt to give even a sketch of the public life of the chief justice, varied and useful as it was. I will confine my remarks principally to his professional career upon the bench and at the bar in this state. I trust the few remarks I shall make will accord with simplicity and truth, as best becomes the subject and occasion.
"I think I became acquainted with Judge Orton in the winter of
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1854. I well remember the first argument I ever heard him make in court. It made a deep impression on my mind. It was before this court in the case of Veeder v. Guppy, reported in the 3rd Wisconsin. The case was one which excited much interest and public feeling in the neighboring county of Columbia, and was hotly contested. Such giants in the profession as Judge Alexander Stow and E. G. Ryan were engaged in the cause as opposing counsel. When I mention that fact, it will be sufficient evidence to every lawyer that Judge Orton's intel- lectual ability and learning in his profession was then generally recog- nized; otherwise he would not have been called upon to meet such antagonists in an important cause.
"From that day to the time he left the practice to take a place on the bench of the circuit court, and subsequently on the bench of this court, he maintained his position in the front rank of the profession, and was justly regarded as one of the ablest lawyers and one of the most elo- quent advocates at the bar in this state. He had a large practice in the trial courts and in this court. And in this connection I may add, as I am now the only survivor of all those who participated, either on the bench or at the bar, in the trial and decision of the novel and some- what celebrated case of Bashford v. Barstow, reported in the 4th Wis- consin, which, it will be remembered, was a contest for the office of governor of the state and excited intense interest and strong public feelings, certainly in the political parties, Judge Orton appeared for the defendant. He was associated with such eminent and accomplished lawyers as Jonathan E. Arnold and Matt. H. Carpenter, but the burden of the argument upon all motions and questions of law arising in the preliminary proceeding rested mainly upon the shoulders of Judge Orton, who seemed, by consent, to be given the management of the cause in court. The questions involved were certainly new-I might say, almost of first impression under our form of government. They could not, of course, arise under any other form. Judge Orton met and discussed these questions with wonderful learning and ability. He was called upon, likewise, to discuss them often. on the spur of the moment, without any time for reflection, examination of the author-
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ities, or even to make preparation, and against such lawyers as Judge Timothy O. Howe and E. G. Ryan, whose supremacy at the bar will be questioned by no one. But Judge Orton was not surpassed by any lawyer in the case in the efforts he put forth or in the intellectual powers he exhibited. His client surely had no grounds to complain that his rights and interests in the litigation had not been well and fully protected and presented to the court.
"As an advocate, Judge Orton was most effective, often eloquent and impassioned as a speaker. His mind was clear, logical, and he had at his command a ready flow of vigorous language to express his ideas. He was earnest and sincere in the treatment of all subjects. His sensi- bilities were lively and always excited by any act of fraud or injustice which he was called upon to review; and when he had to deal with such cases, which sometimes happens to every lawyer in practice, he did not soften his denunciations nor spare the wrongdoer, but hurled his words of wrath and sarcasm with pitiless contempt and scorn. Woe to the man who had excited his indignation by any base and dishonest conduct, for he was sure to receive a castigation in words which stung like the whip of a scorpion. And yet he could and did move human sympathies and excite deep emotion and tender feeling, while he cap- tivated the judgment and carried away the understanding of his hear- ers by his appeals. But enough will have been said on this point when I add, he was a most effective speaker, and by the enthusiasm of his temper and magnetism of his manner he had great power and influence over courts and juries.
"His elevation to this bench seemed to fill the measure of his ambi- tion. The performance of the duties of the office was congenial to his tastes, and he looked and sought for no further honors.
"I hope I violate no rule of the most delicate propriety when I allude to his deportment on the bench and in the consultation room. As a judge, in his intercourse with his associates his conduct was ever kind, considerate and gentlemanly. He was ready to express his opinions on all questions, and willing to listen to objections to his views. He always did his full share of the work cheerfully. He was laborious and
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attentive to the business of the court; ready to accommodate and yield to the wishes of others, when no principle was involved. He was an able, honest, and upright judge, trying always to do the right and to administer his high office with impartiality and firmness, never yield- ing to any popular prejudice or partisan feelings. He seemed to desire above all things to see justice done in all business matters, and he sought to settle legal controversies on the eternal principles of equity and right. What higher praise could be rendered to any judge? Some wise man has said that 'governments are established to promote jus- tice among men.' Certainly no civilized society could long exist with- out some means or instrumentalities to secure justice as between man and man. How much real value he contributed to the jurisprudence of the state will appear by the reports of the cases that are published. His acts and labors as a judge are there recorded, and will remain for the instruction and criticism of an intelligent bar and public. I cannot but believe that his opinions will be read with respect so long as the state has a system of jurisprudence, and that no intelligent lawyer will ever fail to hold them in high estimation. It demands no little wisdom and ability to settle a code of laws for a new state-one which is adapted to its new conditions and, in a measure, to its unformed so- ciety. New laws are constantly enacted, tried, and changed, and must be made to meet certain wants and public necessities. And much of the labors of this bench are devoted to the construction of statutes, even to the effort of harmonizing them and making them consistent with each other. But in all this labor the chief justice participated, as well as in all proper attempts to improve the common law, and gave to them his sympathies and best powers. He was naturally conserva- tive in his character, and fully understood the distinction of the func- tions of a judge and those of a law-maker. And, so far as he could, he endeavored to advance all wise reforms in the law and to establish a system of jurisprudence suited to the needs and business interests of our people. How well he succeeded in this work, time will disclose. There is certainly a vigor and elevated moral tone found in his opinions which all will admire. But this is not the time nor the occasion to
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