USA > Wisconsin > Milwaukee County > Memoirs of Milwaukee County : from the earliest historical times down to the present, including a genealogical and biographical record of representative families in Milwaukee County, Volume I > Part 55
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currence of two-thirds of the members of the Senate present being required to convict.
The Second judicial circuit was composed of the counties of Milwaukee, Waukesha, Jefferson and Dane, and by an enactment of the first legislature of the state, which convened on the first Monday in June, 1848, the first Monday in August following was set as the time for the election of judges. Levi Hubbell, of Milwaukee, was chosen judge of the second circuit at this election, and his term was fixed at three years. He was re-elected in April, 1851, after a cam- paign in which the opposition was very bitter, and the result of the contest seemed to increase the hostility. In the famous Radcliffe mur- der case, which was tried before him in 1851, Judge Hubbell had given offense to the jury, of which the foreman was W. K. Wilson, by re- marking, when the verdict of "not guilty," was rendered, "Gentlemen, may God have mercy on your consciences." In January. 1853, Mr. Wilson appeared before the house of representatives at Madison and preferred charges of misconduct against Judge Hubbell, alleging that he has disclosed the nature of his decisions, accused him of "borrow- ing money" before decisions were rendered; alleging that he had been retained as counsel in a case upon which he was sitting as judge : and other charges of corruption and malfeasance were enumerated. A special session of the legislature convened on June 6. and adjourned July 13-the trial of the articles of impeachment consuming twenty- eight days. Judge Hubbell was triumphantly acquitted, and his friends in Milwaukee determined to give him a grand reception on his return from Madison. Accordingly, a special train of seventeen flat cars was chartered, one passenger car being provided for ladies. The judge was met at Waukesha by a large crowd of his Milwaukee admirers. The military and fire departments paraded, and other festivities were in- dulged in to do him honor. A cannon was placed on the rear car, and on another a band of music. Flags were flying, and as the train steamed along from Waukesha to Milwaukee the peals of the iron voice and the general hilarity of the passengers made the air ring. At 7:30 p. m. the train arrived at the station and Judge Hubbell was escorted to the United States hotel by the City Guards. Bonfires were ablaze on East Water street, and he was welcomed by Col. George H. Walker. speeches being also made by his attorney Jonathan E. Arnold. D. A. J. Upham, and others. Judge Hubbell was somewhat taken aback and replied with much feeling, saying that he cherished no resentments and should let the past sink into oblivion, and that the future should be as white paper. E. G. Ryan had made himself famous for the most bitter, skillful and eloquent prosecution ever conducted in the state,
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notwithstanding the impeachment proved unsuccessful. Judge Hub- bell continued in the exercise of his functions as circuit judge until in 1856, when a year and some months before the expiration of the term for which he had been elected, he resigned and resumed the practice of his profession in the city.
The vacancy in the circuit judgeship was filled by the appointment of Alexander W. Randall, of Waukesha, who held until the expiration of the term. Judge Randall was a native of the state of New York and became a resident of Waukesha, Wis., in 1840. His abilities and superior professional acquirements placed him at the head of his pro- fession in his county and gave him prominence among the men of influence in the territory and state. During his brief service as circuit judge he discharged the duties of his office ably and with dignity. His subsequent career as a member of the state legislature, governor of the state, postmaster-general in the cabinet of President Johnson and United States minister to Rome, is so well known that it is unneces- sary to comment upon it here.
On Jan. 1, 1858. Hon. Arthur MacArthur entered upon the duties of the circuit judgeship in Milwaukee as the successor of Judge Randall, having been elected in 1857 for a full term. He was re- elected in 1863 and continued on the bench until the end of his second term, when he removed to Chicago, intending to practice his profession in that city. He was an able jurist and much inclined also to literary studies. A more extensive personal mention is made of him in the chapter upon "Politics and Official Honors."
In 1869. David W. Small, of Waukesha county, was chosen by the electors of the circuit to succeed Judge MacArthur. Judge Small was born in Frankford, Philadelphia county, in the state of Pennsylvania, Dec. 28. 1827. He lived upon a farm until he was sixteen years of age, and attended school during the winter seasons. After this, he spent two years at the Moravian College at Nazareth, in Northampton county. Pa., and after leaving college began teaching. Hc soon com- menced reading law in the office of the Hon. George Lear, of Doyles- town. Bucks county, in April, 1850, and was admitted to the bar at that place, and in May following came to Wisconsin and settled at Oconomowoc, Waukesha county, where he lived throughout his entire professional and judicial career, never having become identified with the bar of Milwaukee. In 1862 he was elected district attorney of Waukesha, and in the fall of 1864 was again elected to that position. He served as judge of the Milwaukee circuit court from January, 1870, until the expiration of his second term, the first Monday in January, 1882.
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By an act of the legislature, approved on March 6, 1882, Wau- kesha county was detached from the Second circuit, leaving Milwaukee county a circuit by itself. Hon. Charles A. Hamilton succeeded Judge Small, and presided as circuit judge until the first Monday of January, 1888.
Judge Hamilton was the grandson of Alexander Hamilton, who served his country as soldier, statesman, jurist, and as the first secre- tary of the United States treasury, during the administration of Washington. His father, John Church Hamilton, was bred a lawyer, but is more widely known through his biographical and historical works, the most valuable of which are: Life of Alexander Hamilton (2 vols. : ) Edited Works of Hamilton, from MSS. in State Department (7 vols .. ) and a History of the Republic of the United States, as traced in the writings of Alexander Hamilton and his contemporaries. Judge Hamilton was born at Saratoga Springs, N. Y .. July 23, 1826. He was educated and read law in New York city, being admitted to the bar on Sept. 2, 1847. He came to Milwaukee in May, 1851, and entered into a co-partnership with the late Jonathan E. Arnold under the firm name of Arnold & Hamilton. In 1858 he became a member of the firm of Emmons, VanDyke & Hamilton. For many years a large part of the Admiralty suits arising on the lake and Mississippi river were brought in the United States district court at Milwaukee, then presided over by Judge Andrew G. Miller. During these years the firm attained wide celebrity as commercial lawyers by its thorough knowledge of Admiralty law and by its success in cases put in its charge. It ranked as one of the first Admiralty law firms in the Northwest, both in the extent and importance of the business entrusted to it. Judge Hamilton entered the military service in August, 1861, soon after the outbreak of the Civil war, as major of the Seventh Wisconsin infantry, served nearly two years in the Army of the Potomac, was severely wounded at the battle of Gainesville, in Virginia, and was compelled by consequent disability to resign his commission in 1863. He was a cultivated gen- tleman, a sound lawyer and an upright and conscientious judge, and at the end of his term lie retired in feeble health.
The successor of Judge Hamilton was Daniel H. Johnson, who is given an extended biographical mention in another department of this work. He assumed the office of circuit judge in January, 1888, was re-elected in 1893, and died soon after the expiration of his second term. In April. 1899. he had been elected for a third term of six years, and had served but a few days more than five months when his earthly career was ended. On July 28, 1900, Lawrence W. Halsey was ap- pointed circuit judge to fill the vacancy caused by the death of Judge
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Johnson ; in April, 1901, he was elected to the position, and was re- elected in April, 1905.
At the election held on April 6, 1897, an amendment to the state constitution was adopted, and this amendment provided that in any judicial circuit composed of one county only, which county shall con- tain a population according to the last state or United States census, of 100,000 inhabitants or over, the legislature may, from time to time, authorize additional circuit judges to be chosen. In accordance with this constitutional amendment the legislature of 1897 at its adjourned session, passed an act authorizing an additional circuit judge for the Second judicial circuit, and also provided for a special judicial election to be held in and for Milwaukee county on the first Tuesday of April, 1899, according to law, for the election of such additional judge. Eugene S. Elliott was chosen at this election. Judge Elliott was a native of the state of Illinois and came to Milwaukee with his parents in 1852. He received his preliminary education in Milwaukee and then entered Dartmouth College. While in his college course, upon the breaking out of the Civil war, he enlisted with a company of boys from Eastern colleges, and served in the Seventh squadron of Rhode Island cavalry. After leaving the service he returned to Milwaukee, studied law, and was admitted to the bar in 1876. He practiced his profession in Milwaukee continuously until his elevation to the bench in January, 1900, but was destined to fill the position only two years. He died very suddenly and unexpectedly while engaged in a game of whist on Jan. 2, 1902. On Jan. 15, 1902, Warren D. Tarrant was appointed to fill the vacancy caused by the death of Judge Elliott. Judge Tarrant was elected to serve out the unexpired term at the April election of 1902, and was re-elected for a full term in April, 1905.
Again, in 1903, the legislature passed an act, which became opera- tive on March. 3, 1903, providing for the election of two additional circuit judges in and for the second judicial circuit. A special judicial election was ordered to be held on the first Tuesday of April, 1903, for the election of one of these additional circuit judges, whose term of office should begin on the first Monday of May, 1903, and end on the day preceding the first Monday in January, 1910. The election of the other additional circuit judge was authorized to take place on the first Tuesday of April. 1905, the term to commence on the first Monday in January, 1906, and the term of office of each of these judges is six years.
Orren T. Williams was elected at the election in 1903, and John C. Ludwig was chosen in 1905. One additional circuit judge was author- ized by the legislature of 1907, and at the April election of 1908 William J. Turner was chosen as the occupant of that position.
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Until Jan. 1, 1850, the circuit courts were the only courts of record in the state having civil or criminal jurisdiction, and until June I, 1853, the circuit judges also constituted the supreme court of the state, sitting as such to review their decisions, rendered at the circuit, upon appeal or writ of error. There were judges of probate, with the usual functions of courts instituted for the administration and settlement of estates, but their jurisdiction embraced nothing else. To remedy this apparent defect, and under authority of the state constitution which has been referred to, county courts were created by the revised statutes of the state which took effect on Jan. 1, 1850, and they were given limited civil jurisdiction. The office of judge of probate was abolished from that date, and full probate powers were conferred upon such county courts. In June. 1853, a separate supreme court, consisting of a chief justice and two associate justices, was organized, and this re- lieved the circuit judges, as such court.
COUNTY COURT.
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. At that time the courts had not been even rudely organized, and but little was cared for the illustration or enforcement of other than the laws of necessity. At a mass meeting, called at the suggestion of Gov. Henry Dodge to nominate persons for the offices to be filled by him under the first organization of the territory of Wisconsin, which took effect July 4, 1836, Mr. Hyer was present, taking part in the proceedings. Nine persons were mentioned for appointment to the office of probate judge, but Mr. Hyer was finally nominated and later the governor confirmed the choice by issuing a commission. Daniel Wells, Jr., was nominated at the same time for justice of the peace, and the governor also issued a commission to him. Mr. Hyer held court in his office, which served him also as a dormitory, the table being his bedstead and some law books his pillow. Thus was the "majesty of the law" first introduced into the embryo city of Milwaukee. Mr. Hyer's jurisdiction extended over the entire southeastern portion of Wisconsin. In June, 1837, the bar held a meeting to fix upon some rules of practice. After discussing the matter at some length, Mr. Hver and some others were appointed to report rules of practice at an adjourned meeting, which was done. Those were the first rules, or first code, in this portion of Wisconsin, and perhaps they were the first west of Lake Michigan. Judge Hyer was succeeded in the office of probate judge by William Campbell in
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1837, Daniel Wells, Jr., in 1838, Sylvester 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.
Judge Clinton Walworth was also the first police justice of the city of Milwaukee and served as the incumbent of that office for many years. He was a son of Judge James Walworth, of Burlington, Otsego county, N. Y., and a nephew of Hon. Reuben H. Walworth, at one time chancellor of that state. He came to Milwaukee in the fall of 1836. and, except for one year, resided here continually up to the time of his death, July II. 1862, in his forty-eighth year, generally loved for his mild, kindly disposition and genial ways. Judge Walworth was the prime mover in the establishment of the Municipal and Criminal court, and expected to be its first judge, but was unable to realize his aspira- tions.
The election of Judge Walker to the United States senate, in June, 1848, caused a vacancy in the office of probate judge, and the legisla- ture, then in session, provided by special act for an election to beheld on July 10 to fill the vacancy. James Holliday, an able and prominent lawyer, was chosen and served to the end of the term.
Born in Mifflin county, Pa., Judge Holliday had grown up in the Keystone state, received his education there, and began the practice of his profession in Wyoming county. In 1843 he came to Milwaukee. a young man, to begin practice at a bar noted throughout the North- west for the splendid attainments of its leading practitioners. Jona- . than E. Arnold, J. H. Tweedy, H. N. Wells and others, whose master intellects have left their strong impress upon the bar history of the city, were then in the full vigor of their professional careers, and when Mr. Holliday began his practice here he had to measure swords with men who had no superiors at the western bar. At the very outset of his career he made a favorable impression. Scholarly, studious, and thor- oughly well equipped. he handled his cases with consummate skill and ability, while his keen wit, quaint humor and stirring cloquence soon made him famous among his contemporaries of the old bar. His per- sonal appearance has been described as impressive and his bearing such as to attract attention in any company. His flashing eye bespoke the chivalrous nature, his cordial greeting, the warm and generous heart. and his courteous manner the polished. kindly gentleman. Sensitive, impulsive, mindful of his honor and quick to resent an affront, the brilliancy of his attainments and his methods of practice soon made him one of the most attractive figures at the bar. For nearly eight years he continued the practice, steadily growing in popular favor and attaching to himself a constantly widening circle of clients. The
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firm of Holliday, Brown & Ogden, still remembered by old members of the bar, had been organized, and was recognized as one of the lead- ing law firms of the West, when its dissolution was brought about by the death of the head of the firm. At a morning session of the circuit court one day in May, 1851, Judge Holliday entered the court room to take up the argument of a case. Addressing the court, he began the discussion of the case on trial, and was relating in a quaint style a hu- morous anecdote, for the purpose of illustration, when his whole man- ner suddenly changed, his utterance was impeded, and those present in the court room saw at a glance that he had been stricken with a dan- gerous if not fatal illness. Placing his hand over his heart, he asked Judge Hubbell, who was presiding, to excuse him, and called for a carriage. A moment later he sank into a seat and expired before he could be removed from the court room, although every effort possible was made to revive him. His remains were interred in Forest Home cemetery, and his burial was among the first in what has since be- come a most beautiful and populous city of the dead.
James B. Cross succeeded Judge Holliday as probate judge on Jan. 1, 1849, having been elected at the general election in 1848 for the regular term of two years. He served but a single year, however, as the act abolishing the office and conferring all its powers upon the county court took effect on Jan. 1, 1850. This act (R. S., 1849, chap. 86), con- ferred upon a county court to be organized in each county in the state, "original jurisdiction concurrently with the circuit court to try and de- termine according to law all civil actions arising within the county, and all transitory 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 eject- ment ), and exclusive appellate 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 Jan. 1, 1850, "invested with full and exclusive probate powers." The legislature evidently regarded the court thus created as but little above the ordinary justice of the peace. Not only was its jurisdiction as to amount limited to an unusual degree, 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 pro- cedure 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.
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The jurisdiction of the county court of Milwaukee county was ex- tended by an act of the legislature, in 1854, to all civil cases not involv- ing more than $5,000 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 unconstitu- tional, the law was amended so as to provide a regular panel of petit jurors for each term of court.
The distinction between legal and equitable actions as to pleadings and practice had been carefully maintained in Wisconsin until October, 1856. This distinction was then abolished by the legislature, and the New York code of procedure was adopted almost without change. Thic provisions of this code permitting equitable defenses to be pleaded to actions at law made necessary the conferring of some equity jurisdic- tion 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 de- termine any equitable defense, which may be set up by defendant as a defense only, to the plaintiff's action." The legislature further en- larged the jurisdiction of this court in 1860, 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 exercise the same powers and jurisdic- tion in all civil actions as exercised by the circuit court, the only limita- tion being that the value of the property or the amount of money in controversy should not exceed $20,000. The rules of practice pre- scribed by the supreme court for circuit courts were also made appli- cable to said county court. In 1868, the limitation was again enlarged to $100,000, and in 1871, to $5.000,000, and from that time until Jan. I, 1888, the county court exercised within the county virtually the same original jurisdiction as the circuit court in all civil actions, both in law and equity. Upon the date given, nearly all but the probate functions of the county court were transferred to the newly-elected Superior court, hereafter mentioned.
The first judge of the county court was Hon. Horatio N. Wells, elected in September, 1849, for a term of four years. Judge Wells came to Milwaukee in 1836, being then in his thirtieth year. Later he, with Jonathan E. Arnold and Edward G. Ryan, composed the great trio of Milwaukee lawyers. He was town clerk several times, district attorney for three years in territorial days, mayor in 1847-48, repre- sented his district in the lower house in 1839 and 1840, and was presi- dent of the last Territorial Council in 1847 and 1848, assisting in drawing up the state constitution. As stated above, Judge Wells was the first county judge, and he built the first law office in the city, after the model of the one in which he laid the foundation of his professional
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career at home. He went at once to the head of the bar. He was ever making some sharp turn, and his wit was always so ready, so extem- poraneous, that even its victims were sometimes charmed with it. The late judge Andrew G. Miller was often the sufferer, and. as his was a character which could not unbend, the two were always at variance. In his letters written home to his family in Vermont, Judge Wells often complained of the unfairness of Judge Miller's course toward him, claiming that he could not practice in his court. His was a very proud , spirit, and it is on record that the cloud which darkened his later days rested there because of the discouragements and vexations brought on from the constant annoyance of discordant natures. He died on Aug. 19, 1858, a wreck of the handsome, vivacious young man who came here with such high hopes in 1836. Judge Wells was born on Nov. 4. 1807, in Connecticut, his parents removing, when he was an infant, to a farm in Hinesburg, Vermont. He received an academic and collegi- ate educaton, studying law with A. D. Smalley, of Burlington, with whom he afterward went into partnership. After completing his term of four years as county judge he retired from the office and from pro- fessional life with the sincere regard and good-will of the bar.
Charles E. Jenkins succeeded Judge Wells as county judge in January, 1854. He was one of those who were attracted to Milwau- kee as the metropolis of a new-born state, arriving in 1848, and his evident talent and fine address quickly gained for him popularity and professional success. After serving in the state legislature and nearly three years as county judge, he resigned the latter position in the fall of 1856, to engage in a business enterprise, in which he became in- terested with others, and he later removed to the city of New York. Hon. Byron Paine was appointed by the governor to fill out the unex- pired term of Judge Jenkins, and in 1857 he was elected for the full term, commencing on Jan. 1, 1858. He served until June 1, 1859. when, although he had not yet reached the age of thirty-two years, he assumed the duties of associate justice of the supreme court of the state. to which he had been elected in the spring of that year.
Albert Smith succeeded Judge Paine as county judge, by appoint- ment, in June, 1859. and continued in office by repeated elections until his death, Aug. 29, 1870. Judge Smith is said to have been the ex- act counterpart. in personal appearance. of Daniel Webster. He was born in western New York in 1806, practiced some time in Cleveland. and came to Milwaukee in 1846. In the Clay-Polk campaign he was elected to Congress by his New York supporters over the Democratic nominee, Judge Chandler, of Batavia, who happened, furthermore, to be his early legal instructor. As stated, Judge Smith came to Mil-
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