USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. II > Part 5
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This resolution of 1861 and 1878, requiring examinations in open court by the judge or examiners appointed by him, was intended to restore the practice of the law to the honorable dignity of a profession. It was doubtless expected that the circuit judges would enforce the law and subject applicants for admission to the legal ranks to the test of
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such examination as would prove them qualified as to legal knowledge and ability before granting them license to practice as attorneys. This just expectation was not realized. The law prescribed neither term of study nor standard of attainments. There was no concert of action; no uniformity of practice among the judges in administering the law. Each circuit judge had his own idea of duty and granted license upon such terms as he saw fit. If an applicant was rejected in one circuit upon examination, as incompetent, he had no difficulty in securing immediate admission in a neighboring circuit where the requirements of the judge were less exacting, or perhaps merely nominal. A circuit judge who had been forced to recognize as an attorney duly licensed, a person whose application he had refused upon examination but forty- eight hours before, ceased to require learning or ability in candidates, and thereafter denied no man admission who knew enough, when asked how an action is commenced, to answer, "by summons."
A slight effort to correct this evil was made by an amendment passed in 1881, requiring that every applicant must be a resident of the judicial circuit in which he should apply for admission, but as no period of residence in the circuit was prescribed, the amendment effected little improvement. It was easy for an unfit candidate to evade this pro- vision by taking up his residence for a few days or weeks in a circuit where his qualifications would not be scrutinized. Many, and doubt- less most, of the circuit judges made a fair and honest effort to carry out the law according to its evident intent, but the lack of unity and uniformity in their requirements and in their standards and methods, as well as the apparent indifference of some to any standard, made it clear that the system was at fault and that a radical change was nec- essary.
The act of 1885 (chap. 63), by creating a state board of examiners of candidates for admission to the bar, was intended to do away with the evils referred to, and provide an independent commission for the examination of applicants from all parts of the state for the determina- tion of their learning and ability to practice by fair and uniform tests. This act leaves untouched the provisions of the revised statutes of 1878 admitting to the bar graduates of the law department of the state univer- Vol. II .- 3
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sity and residents who shall have been admitted to practice in the su- preme court of any other state or territory, but it requires that to en- title any other person to admission to practice as an attorney in the courts of record of the state, the applicant shall be of full age, a resi- dent of this state and of good moral character, and shall first produce a certificate from the board of examiners appointed by the supreme court, as provided by the act, that the applicant "possessed sufficient learning in the law and ability to enable him to properly practice as an attorney."
The act creating the board of examiners is in the following words:
"The supreme court shall, on or before the second Tuesday of August in each year, appoint five competent attorneys, residents of the state, who shall constitute a board of examiners for the examination of applicants for admission to the bar. Such board shall meet at the capitol once or more each year and at such times and also at such other times and places within the state as the supreme court shall direct, for the purpose of examining all applicants for admission to the bar, and upon such examination being had, the said board shall issue to such applicants as they find possessed of sufficient learning in the law and ability and otherwise qualified, a certificate of qualification for admission to the bar. The residence and age of the applicant shall be made to appear to said board by affidavit, and satisfactory evidence shall also be produced to said board by such applicant of good moral character and of having pursued the study of the law for at least two years prior to such examination. Three members of such board shall constitute a quorum for the transaction of business."
The first board of examiners under this law was appointed by the supreme court April 28, 1885. Its members were Moses M. Strong of Mineral Point, Joshua Stark of Milwaukee, M. A. Hurley of Wausau, George G. Greene of Green Bay, and Lycurgus J. Rusk of Chippewa Falls. Their first meeting was held by order of the court at the capitol in Madison on the 6th of May, 1885, when Moses M. Strong was chosen to act as president, and L. J. Rusk as secretary of the board.
Brief rules were adopted relating to the examination of candidates,
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which, upon their approval by the supreme court, were printed for the information of those interested. They are as follows:
"Rule I. Every person intending to present himself for examina- tion by the board of examiners appointed by the supreme court for the examination of applicants for admission to the bar, at any meeting of said board for that purpose, is required to notify the secretary of said board, in writing, of such intention, at least twenty days before the time appointed for such examination, and at the same time to furnish to said secretary his affidavit stating his age and residence and the term and place or places of his study of the law, and no person will be exam- ined at such meeting who has not complied with this rule.
"Rule 2. Every applicant, before the beginning of his examination, shall present to the board a certificate of each of the attorneys with whom he shall have studied, that such applicant is a person of good moral character, and a certificate of at least two members of the bar of the county wherein such applicant resides, that to the knowledge or belief of such members such applicant has pursued the study of the law for at least two years. Such certificates shall not be conclusive on the board, but the members of the board may satisfy themselves on this point from examination and inquiry."
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Examinations for the year 1885 were appointed to be held on the last Tuesday in June at Madison, the first Tuesday in September at Mil- waukee, the fourth Tuesday in October at Eau Claire, and the last Tuesday in December at Oshkosh. These were all held and were at- tended by moderate numbers, less than thirty appearing at any one examination.
The experience of the first year convinced the board that three examinations each year would be quite sufficient, and that the con- venience of applicants would be consulted by holding them only at Milwaukee and Madison.
The examinations in 1886 were held on the first Tuesday in March and last Tuesday in December at Milwaukee, and on the first Tuesday of July of the same year at Madison. Since 1886 but three examinations have been held each year, two in Milwaukee and one in Madison, the dates only having been changed.
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All members of the first board of examiners were continued in office by annual reappointments until June, 1897, with the exception that A. L. Sanborn of Madison was appointed by the court in August, 1894, to fill a vacancy caused by the removal of M. A. Hurley from the state, and Gilbert M. Woodward of La Crosse was appointed October 28, 1895, in place of Moses M. Strong, deceased.
The present board, consisting of L. J. Rusk of Chippewa Falls, Gil- bert M. Woodward of La Crosse, A. L. Sanborn of Madison, Charles Quarles of Milwaukee and S. N. Dickinson of Superior, was appointed June 24, 1897.
The first few examinations were both written and oral, the former occupying each one day and consisting of the writing of answers by each applicant to from thirty to fifty printed questions on various de- partments of jurisprudence. The oral examination was necessarily brief. To carefully read and determine the results of the written examination was frequently a labor of more than twelve hours, and a thorough oral examination of each applicant in addition, demanded more time than a lawyer in active practice could devote to it without great sacrifice.
In the opinion of the examiners, after a fair trial, the written exami- nation was a far safer and more satisfactory test of qualification for the bar than any oral examination could be unless unreasonably prolonged and thorough. The written answers deliberately made, with opportunity for reflection, were deemed to be reliable evidence of the intelligence and mental training and the ability to think logically and to express clearly and definitely the thought of the person under examination. The written examination covered a wide range of legal subjects and applied the same test to all applicants at a single examination. Soon the oral examinations were abandoned. The standard of attainment, as shown by the examination, was fixed at seventy-five per cent, and has since remained the same.
Some of the applicants for admission were men of little education, unskilled in the use of language and ignorant of legal principles, but having a superficial acquaintance with legal procedure and with some of the laws pertaining to common affairs, acquired perhaps while serving in some official position, as justice of the peace, clerk of court, or other
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similar capacity. The examiners were forced to reject such persons, and to do so repeatedly in many cases. It was probably at their instance that the following additional requirement was enacted in 1891 :
"The said board shall establish a standard of attainment which must be reached by each applicant before he receives a certificate, and the standard so established shall be uniform. The examination papers made by each applicant shall be examined by the board. They shall mark the answer to each question upon the same, with the percentage standing to which each answer shall be entitled, and within thirty days after the examination is had, the papers belonging to each applicant shall be re- turned to him, duly marked with the percentage standing, together with a card showing his standing in each branch upon oral examinations, so that whether receiving a certificate for admission or not, each applicant may know what proficiency he has attained in each branch or subject upon which he has been examined."
Oral examinations limited to a single day were resumed in 1895. As some protection against repeated applications by persons grossly incompetent, the following rule has been adopted:
"When any applicant has been examined at three different exami- nations, and has failed to obtain a certificate of qualification, such appli- cant shall not be entitled to another examination until one year after his last previous examination."
Among the applicants for examination by the board have been men of all ages, from twenty-one to fifty-five or over; men of all grades of education, from the university graduate to the mechanic or clerk with but scanty common school education.
It would be interesting to give examples of the crude ideas of some of the applicants respecting subjects of their reading. To the question, "When or under what circumstances the confessions of a person may be used against him," one answered: "Confessions of a person are good against him when he took due precaution to make the confession con- fidential and tries to keep it a secret."
Another, in all seriousness, presented the following wise statement:
"To take a verbal agreement to convey lands out of the statute of frands, on the ground of part performance, all that is necessary is for
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the purchaser to pay the balance of the purchase price and for the vendor to deliver a deed to the lands to the purchaser. This will make the sale complete and the statutes of fraud will have no bearing."
Among the prerogative writs known to the common law, another included magna charta and the declaration of independence.
Compounding a felony was defined as "committing one offense while trying to commit another," a unique application of a commercial principle to criminal law.
Eccentricities of this sort could be multiplied.
The law under which the board of examiners is acting is indefinite as to the amount of study or the standard of general or professional attainment required to admit applicants to examination. The board are to issue certificates of qualification "to such applicants as they find possessed of sufficient learning in the law and ability and otherwise qualified." The applicant, however, is only required to produce satis- factory evidence of his good moral character and "of having pursued the study of the law for at least two years prior to such examination."
What is "pursuit of the study of the law" within the meaning of the act? Does it mean the giving of a portion of one's leisure hours to reading a few text-books and hearing occasional evening lectures, while his best energies are given each day to work of an entirely different character? Is the intent of the act satisfied when teachers, clerks, ac- countants, and men in other active employments are admitted to exami- nation after two years of more or less desultory reading, without con- tact with actual practice or the discipline and instruction which can be best gained in a law office?
A young man with a quick and retentive memory may, after such preparation, pass a fairly good examination, but it may well be doubted if the end of the law has been gained or its requirements have been com- plied with. The requirement of at least two years' study with a practic- ing lawyer preparatory to examination would certainly be a great im- provement upon the present statute upon the subject. Those students who had enjoyed the advantage of such study proved in all cases to be far better prepared for examination and equipped for the serious work ยท of the legal profession.
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Lack of sound and liberal education is perhaps the most serious defect in the preparation for the career of the lawyer.
At the last meeting of the American bar association, it was "Re- solved, that the American bar association is of the opinion that before a student commences the study of law, it is desirable that he should have received a general education, at least equivalent to a high school course, and that persons who have not completed the equivalent of such a course should not be admitted into law schools as candidates for a degree."
If the standard of education and intellectual training named in this resolution were applied by the Wisconsin board of examiners, it would rule out a large percentage of the applicants. It may by some be deemed unreasonable to exact such a standard in this state, but it is certain that no man may reasonably ask to be invested with the important powers and functions of the legal profession who has not for at least two years devoted his time and the best energies of a cultivated mind exclusively to the study of jurisprudence, and to the mastery of its principles and maxims.
CHAPTER XVII.
THE PROBATE, COUNTY, SUPERIOR AND MUNICIPAL COURTS OF MILWAUKEE, AND THEIR JUDGES.
THE PROBATE COURT.
Until January 1, 1850, the circuit courts were the only courts of record in the state having civil or criminal jurisdiction. Judges of probate, indeed, there were, with the usual functions of courts insti- tuted for the administration and settlement of estates, but their juris- diction embraced nothing else.
Under authority of the state constitution county courts were cre- ated by the revised statutes which took effect January 1, 1850, with limited civil jurisdiction. The office of judge of probate was abolished from that date, and full probate powers were conferred upon such county courts.
While Wisconsin remained a territory the office of probate judge of Milwaukee county was filled by several citizens, some of whom were not lawyers. The first was Nathaniel F. Hyer, appointed in 1836. He was followed by William Campbell, in 1837; Daniel Wells, Jr., in 1838; Cyrus W. Dunbar, in 1839 to 1843; Joshua Hathaway, in 1843 and 1844; Clinton Walworth, in 1845 and 1846, and Isaac P. Walker, in 1847 and 1848.
ISAAC P. WALKER.
The birthplace of Mr. Walker was near Wheeling, Virginia; the time November 2, 1815. He removed to Danville, Illinois, in his youth and there obtained such education as the schools afforded; during a portion of the time he resided there he was a clerk in a store, and later read law in the office of Judge Samuel McRoberts, and was admitted to the bar. On the election of Mr. McRoberts to the United States senate Mr. Walker succeeded to his law practice. He served one term in the Il- linois legislature and in 1840 was a presidential elector on the Van Buren ticket. In 1841 or 1842 he settled in Milwaukee and entered upon the practice of the law. In 1847 he was elected a member of the popular branch of the territorial legislature and served during the last
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two sessions. In June, 1848, he and Governor Dodge were chosen the first United States senators from Wisconsin; Senator Walker drew the short term, ended March 4, 1849. In January, 1849, he was elected to succeed himself. After the expiration of his term he retired to private life, taking up his residence on a farm in Waukesha county. His ven- ture in this respect was an unprofitable one, and he resumed his practice in Milwaukee and continued it until within about a year of his death, during which time he was disabled from pursuing any mental or manual labor. He died, as the result of an apoplectic stroke, April 1, 1872.
Mr. Walker had the reputation of being a good advocate, especially in criminal cases, and ranked as the best patent lawyer in the state. In his prime he was one of the finest and most impressive public speakers in the country, and is said to have been the handsomest man in the United States senate during the time of his service in that body. He was a land reformer and cherished humanitarian theories, and earnestly and powerfully advocated the enactment of federal homestead laws. In 1852 he was nominated by the land reformers for the presidency, but that organization failed to put an electoral ticket in the field, and he supported the democratic ticket. A newspaper obituary says that Mr. Walker was a man of unbounded kindness of heart, of rare ability, a philanthropist with many traits of a statesman and with many elements of popularity and success in political life. He was enthusiastically and unalterably devoted to the Union, and sympathized with all the war measures adopted to suppress the rebellion.
JAMES HOLLIDAY,
the successor of Judge Walker as probate judge, was born in Wayne township, Mifflin county, Pennsylvania, January 19, 1818. He had good educational advantages and they were well improved, of which he gave abundant evidence in the ornate use of words in his public ad- dresses, both professional and political. He adopted the profession of law, the study of which he pursued diligently for several years in his native state, where he was admitted to the bar. He then removed to Wisconsin, and located at Milwaukee in October, 1843, where he opened a law office and entered upon the active pursuit of his profession. He
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very soon acquired an extensive practice, and took a front rank at the very able bar of Milwaukee.
In 1847 Mr. Holliday was elected a member of the house of repre- sentatives of the fifth and last legislative assembly of the territory of Wisconsin.
On the 16th of May, 1851, while engaged in the trial of a suit in the courthouse at Milwaukee, he was suddenly attacked with a disease of the heart and immediately died, at the age of thirty-three years.
JAMES B. CROSS
became probate judge January 1, 1849, having been elected in 1848 for two years. He served but half that time, the office being abolished January 1, 1850. He was born in Phelps, Ontario county, New York, December 17, 1819. He received an academic education, studied law and removed to Milwaukee in May, 1841. He was never successful as a practicing lawyer, and in 1846, having been elected a justice of the peace in Milwaukee, he devoted his attention to the duties of that of- fice, giving up entirely the practice of law. In the spring of 1848 he was elected judge of probate. He was a member of the assembly in 1849, 1850 and 1855. In 1850 he was elected city attorney of Mil- waukee and discharged the duties of that office in a satisfactory manner.
At the election in 1857 Mr. Cross was the democratic candidate for governor, and lacked only 118 votes of defeating Alexander W. Randall, who was elected by the newly organized republican party.
For five years Mr. Cross was president of the Juneau bank of Mil- waukee, and filled other important business and civil positions. He had a fine personal appearance, possessed many elements of popularity, and was fitted to adorn with grace and credit any position in life. He died at Milwaukee, February 8, 1876.
THE COUNTY COURT.
Chapter 86, revised statutes of 1849, conferred upon a county court to be organized in each county in the state, "original jurisdiction con- currently with the circuit court to try and determine according to law all civil actions arising within the county, and all transitory
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actions, although the same may not have arisen within the county, where the debt or damages demanded do not exceed the sum of five hundred dollars (excepting actions of ejectment), and exclusive ap- pellate jurisdiction of all cases of appeal and certiorari from justices of the peace." Such court was also empowered to "enter judgments by confession and to grant new trials, and, by the consent of parties, to try any civil actions without limitation as to amount;" and its judge was, from and after the first day of January, 1850, "invested with full and ex- clusive probate powers."
The legislature evidently regarded the court. thus created as but little above the ordinary justice of the peace. Not only was its juris- diction as to amount absurdly limited, but no provision was made for a trial of issues of fact by a jury, except in case of a demand by either party, and then the jury was to consist of not more than six persons selected from a list prepared by an officer or other person designated by the court, the procedure being the same as that in courts of justices of the peace. The term of office of the county judge was made four years, and he was to be compensated by fees only.
In 1854 the jurisdiction of the county court of Milwaukee county was extended to all civil cases not involving more than five thousand dollars in value or amount, with a proviso expressly excluding equity and criminal jurisdiction; and, it having been held by the supreme court that the provision for a jury of six was unconstitutional, the law was amended so as to provide a regular panel of petty jurors for each term of the court.
Until October, 1856, the distinction between legal and equitable ac- tions as to pleadings and practice had been carefully maintained in Wis- consin. This distinction was abolished by the legislature in October, 1856, and the New York code of procedure was adopted almost without change. The provision of this code permitting equitable defenses to be pleaded to actions at law made necessary the conferring of some equity jurisdiction upon the Milwaukee county court. This was done by the revised statutes of 1858, "so far only as to enable said court to hear and determine any equitable defense, which may be set up by defendant, as a defense only, to the plaintiff's action."
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In 1860 the legislature further enlarged the jurisdiction of this court so as to include all civil actions, both as to matters of law and equity, equal to the circuit court, and to authorize such court to ex- ercise the same powers and jurisdiction in all civil actions as exercised by the circuit court, the only limitation being that the value of the prop- erty or the amount of money in controversy should not exceed twenty thousand dollars. The rules of practice prescribed by. the supreme court for circuit courts were also made applicable to said county court. In 1868 the limitation was again enlarged to one hundred thousand dollars, and in 1871 to five million dollars, and from that time the county court and its successor, the present superior court of Milwaukee county, have exercised within the county virtually the same original jurisdiction as the circuit court in all civil actions, both in law and equity. The first judge of the county court was
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