State Bar of Wisconsin

Practicing Law in 19th Century Wisconsin

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The dramatic changes that have taken place in Wisconsin's economic, political and social life since Wisconsin first became a distinct political entity in 1836 have inevitably triggered corresponding changes in the nature of legal practice in the state.

by Joseph A. Ranney

The day-to-day life of lawyers and judges has changed much less over the years than that of their counterparts in other professions. The core of a lawyer's work has always been to comprehend a problem, determine the legal rules that apply to it, figure out ways to solve it, and use tongue and pen to make a solution come about, either by persuasion or by compromise. This article describes the changes in the legal profession in Wisconsin during the 19th century. A future article will discuss the even greater changes that have taken place since 1900.

The changing bar

The "heroic" generation of Wisconsin lawyers. The lawyers who practiced in Wisconsin during the years just before and just after statehood, from 1836 to about 1865, had extraordinary opportunities to help shape the new state and its laws. When Wisconsin became a state, it had to create an original organic law in the form of a state constitution. It also had to develop an original body of statutory law and common law for itself. Judges and political officials also were needed to administer the new laws.

Wisconsin's early settlers relied heavily on lawyers to meet these needs. As a result, Wisconsin's first generation of lawyers became the only generation for whom holding public office was the norm rather than the exception. A directory of lawyers published in 1882, when many of the first generation still were alive and actively practicing law, shows that almost half of the first generation lawyers listed in the directory served in the state Legislature (see Table 1).¹ More than a third served as judges, and more than 10 percent served in Congress. Several served in federal appointive positions or in local government.²

The changing second generation. As Wisconsin matured, its bar expanded rapidly; but the number of political and judicial offices grew only modestly, and competition for them became increasingly keen. Thus, while lawyers continued to play a leading role in the state's political development, the assumption that every lawyer would play such a role faded.

Wisconsin's second generation of lawyers also reflected changes in legal education that took place throughout the United States during the mid-19th century. In the early part of the century there were only a few law schools in the United States, all on the East Coast. The vast majority of lawyers received their legal training through either self-study or "pupillage," that is, an apprenticeship with an established lawyer. But as American society grew larger and more complex, the practice of law began to require a depth of knowledge that professional instructors could provide better than books or practicing lawyers.³ The University of Wisconsin established the state's first law school in 1868. Like their predecessors, a majority of Wisconsin's second generation lawyers received their training through pupillage, but the number of law school graduates was much higher than in the first generation.⁴

Women and the bar. The Wisconsin bar, like the American bar in general, was almost exclusively male throughout the 19th century. Lavinia Goodell of Janesville was the first woman to apply for admission to the bar of the Wisconsin Supreme Court. The supreme court, in an opinion written by Chief Justice Ryan, rejected her application on the grounds that the common law did not provide for the practice of law by women and that the state statutes did not clearly authorize it.⁵ In his opinion Ryan echoed the sentiments of many men of his generation: "It is public policy ... not to tempt women from the proper duties of their sex by opening to them duties peculiar to ours. There are many employments in life not unfit for female character. The profession of law is surely not one of these. ... Womanhood is moulded for gentler and better things."⁶ The Legislature, however, proved more liberal: in 1877 it passed a statute prohibiting state courts from denying admission to the bar on the basis of sex, and in 1879 the supreme court admitted Goodell over Ryan's dissent.⁷ By 1882 Goodell had been joined by four other women.⁸ However, many lawyers remained flatly opposed to admitting women to the bar, and most others regarded them as oddities and treated them patronizingly. Women did not begin to gain real equality at the bar until the mid-20th century.⁹

The changing nature of legal practice

The circuit riding years. During the early years of statehood most Wisconsin lawyers practiced law under primitive conditions. In 1850 there were only 471 lawyers in the entire state.¹⁰ Outside Milwaukee and Madison, most lawyers were widely scattered and practiced in relative isolation. Wisconsin, like most other western states, was divided into several multi-county circuits, each with one judge who held a separate term of court in each county during each year. In order to earn their living, most lawyers "rode circuit" with the judge from county to county:

"The pioneer practitioner found his more congenial duties in the trial of causes than in work at the desk or in the office. His calling was to 'ride the circuit,' in order to be in readiness for retainers rather than for their fulfillment. Court days were the event of the season at the county seat, and with the arrival of the presiding judge came a string of lawyers trooping in on horseback, in stage, on prairie schooner or sleigh, and sometimes on foot; to remain until the term closed, and then on to the next assize. When the work was on they were earnest workers in their cause; ability, learning and eloquence were exercised to serve clients and entertain spectators. When work was off they were in for a good time, of the details of which we need not be too curious in these sober days."¹¹

Many lawyers apparently enjoyed socializing more than practicing law. One attorney reported in 1850, while attending a session of the supreme court in Madison, that "as a general thing I should say [the lawyers here] are not any too much given to hard study. ... [M]ost appear to enjoy sport and leisure, and are apt to try to live by their wits."¹² This continued to be true throughout much of the 19th century, particularly in the more recently settled parts of the state. Justice Roujet Marshall remembered when he practiced law in Chippewa Falls in the 1870s, his colleagues "readily turned aside from the business of the profession at most any time during business hours to enjoy a social game of cards with more or less drinks by the side."¹³

One of the reasons that lawyers occupied a prominent place in early Wisconsin public life was that law was much more of a public entertainment in the early 19th century than it has been since. Juries and audiences prized colorful oratory more than close legal reasoning, and many lawyers responded accordingly. One observer described the Wisconsin public's view of lawyers in the mid-19th century as follows:

"The names and personality of the prominent lawyers in those days were as familiar as household words, and their faces were as easily recognizable by a majority of the settlers in the villages and county seats. The public mind was attracted to them. A lawsuit of interest in which they might be engaged was a matter of general concern, and it was made a matter of duty for all to understand as much about it as possible, from common report and meager newspaper account."¹⁴

During the early years of statehood, most legal business came in the form of litigation. To succeed in the legal profession, it was necessary to have at least some forensic ability. Even the most prominent lawyers could not afford to be too selective about the business they handled, and they could not afford to have a specialized practice.¹⁵

The advent of corporate law and specialization. All of these features of legal practice gradually changed as the 19th century progressed. The number of circuit courts gradually increased. Wisconsin's railroads and highways improved to where even in the larger circuits, lawyers and judges could travel to any courthouse in the circuit and back home in a day. Circuit riding had come to an end.

Perhaps the most important change in the late 19th century was the advent of specialization, corporate legal practice and the "office lawyer." Railroads, lumber companies and other large industrial ventures played an increasingly large role in Wisconsin's economy from the late 1850s onward. These companies were involved in their fair share of litigation, but they also needed legal counseling with respect to tax questions and legislative efforts to regulate their businesses. By the 1860s a few of the leading lawyers in Milwaukee and Madison were able to devote themselves exclusively to business counseling. By the 1880s several of the state's largest companies had retained attorneys to represent them exclusively.¹⁶ Many other attorneys divided their practice between litigation and business counseling. Specialization probably was more prevalent in Milwaukee, Madison and other large cities than it was in the smaller towns and the rural areas, which were less industrialized and had fewer lawyers to meet the population's general legal needs.¹⁷

Codifying and publishing the law. Prior to the 1870s many lawyers and judges found copies of statutes and case reports difficult to obtain. Thus they had to rely on common sense more than common law in arguing and deciding cases. Access to statutes and case reports was less of a problem for the supreme court and for the more prominent and affluent lawyers, who had better access to the state library at Madison and in many cases could afford to build large private legal libraries.¹⁸

Wisconsin made arrangements to codify and publish its statutes and supreme court decisions much earlier in its existence than did many other states. This greatly helped lawyers outside the larger cities. At the beginning of its existence the supreme court appointed a permanent reporter, who was responsible for arranging to publish in book form all of the court's decisions. At first the published reports did not circulate widely, but in the early 1870s Callaghan & Co. of Chicago took over publishing the reports. Callaghan brought out new editions of the older reports. It also was able to disseminate the reports more statewide than the supreme court's reporters had done.

In 1842 Edward Whiton, a legislator who later became Wisconsin's first chief justice, compiled Wisconsin's territorial statutes into one volume.¹⁹ The first state Legislature appointed a committee of three prominent lawyers to compile all territorial and state acts then in force and to put them into some logical order. In 1849, after almost a year of work, the commissioners submitted their draft to the Legislature, which reviewed it and adopted it as the official state statutes.²⁰

The Legislature arranged for three additional revisions of the statutes, in 1858, 1878 and 1898.²¹ Appointment as a revisor carried much prestige. Some of the leading bar members worked on the revisions. Alexander Randall, who worked on the 1849 compilation, later became governor of Wisconsin. David Taylor and Harlow Orton, who worked on the 1878 revision, both became members of the Wisconsin Supreme Court that year; one of their colleagues, William F. Vilas, later became a U.S. senator. Arthur Sanborn and John Berryman, who prepared the 1898 revision, authored other treatises and legal works as well.

The Wisconsin statutes grew rapidly in bulk: the 1849 compilation ran to 900 pages, the 1898 revision to 3,400 pages. It gradually became clear that statutory revision was too large a work to be done on a sporadic basis. In 1909 the Legislature created a permanent agency, the Office of the Revisor of Statutes, which was charged with continuously compiling the statutes and publishing them biennially. Wisconsin was the first state in the nation to create a permanent revisor of statutes.²²

The rise of bar associations. As the number of lawyers increased and lawyers and judges gained more of a sense of themselves as an institution, sentiment grew for establishing state and local bar associations. Milwaukee lawyers created a local bar association as early as 1858. In 1877 a large group of lawyers statewide gathered in Madison to decide whether to endorse a successor to the judge for the Western District of Wisconsin, who had just died. Instead, they decided to organize a state bar association.²³

A committee headed by Chief Justice Ryan drafted a constitution, and the State Bar Association of Wisconsin held its first meeting in January 1878. Moses Strong of Mineral Point was elected the first president. The association met only sporadically from 1878 to 1898, but since 1898 it has met at least once a year. In its early years, the association concerned itself mainly with determining whether professional quality standards and ethical standards needed to be raised for the bar and with providing a forum for social contacts among its members.²⁴

Changes in the courts

Changes in Wisconsin's court system during the 19th century paralleled those taking place in the bar. Some delegates to Wisconsin's 1847-48 constitutional convention favored a nisi prius system under which circuit judges also would be members of the supreme court, and some favored establishing a separate supreme court. The state constitution incorporated a compromise between the two factions: it established a nisi prius system, but provided that the Legislature could establish a separate supreme court after five years.²⁵ The nisi prius system quickly proved unpopular and impractical, and in 1852 the Legislature created a separate supreme court consisting of three justices.²⁶ As the state's population and the court's workload expanded, the court was expanded to five justices in 1878 and to seven justices in 1903.²⁷

Population and caseload growth also led to a steady expansion of the trial court system. The original system divided Wisconsin into five circuit courts of general jurisdiction, each of which had one judge. The circuit courts operated on "circuit riding" principles: each judge was required to hold separate terms of court in each county in the circuit at different times of the year. The first state Legislature also created county courts in each county, with jurisdiction over civil actions involving $500 or less, and justice of the peace courts with jurisdiction over civil actions involving $100 or less.²⁸ As the state grew the Legislature regularly increased the number of circuits. By the end of the 19th century there were 17 circuits. All the circuits continued to be multi-county circuits that required their judges to travel from one courthouse to another, except for Milwaukee County which received its own circuit in 1882.²⁹

For much of the 19th century both the bar and the public regarded judges more as active participants in the political system than as officers of an institution above politics. Up to about 1870 judges were nominated by party caucuses in the Legislature or by popular "calls" for them to stand for election, which in most cases were thinly disguised partisan movements. After 1870 the public still tended to identify judges with political parties, but there was more of a feeling than previously that a partisan balance should be maintained on the supreme court and that party affiliation should not be an important factor in circuit court elections.³⁰

During the early years of statehood, judges and lawyers often traveled and lived together while the judge made the rounds of his circuit. Relations between judges and lawyers were closer and more informal than they are today. No formal judicial code of ethics existed in the mid-19th century: judges often chatted about the day's cases with circuit lawyers after the end of a day in court, and they mingled with lawyers much more freely than they do today.³¹

The familiarity between lawyers and judges created some problems. Many lawyers were very casual about observing decorum in the courtroom and often tried to make informal agreements about the postponement of cases and other matters of case administration without consulting the judge. As a result cases often remained on the court calendar longer and took longer to try than they would have otherwise. There are many anecdotes of strong-minded judges repairing breaches of decorum and enforcing efficient administration in their circuits. But these anecdotes suggest that judges who did not have forceful personalities often had problems in their courtrooms as a result.³²

The first formal circuit court rules of conduct did not appear until 1873, when Judge Charles Dyer issued them for his circuit based in Racine; and they did not become widespread until after 1900. Full-time court commissioners, large judicial support staffs and other changes that created a sense of the courts as an institution apart from politics and slightly above the rest of society did not appear until the 20th century.

Conclusion

During the course of the 19th century the bench and bar in Wisconsin changed slowly but inexorably, in ways that generally reflected-and indeed were caused by-changes in the society they served.

The period from 1836 to about 1865 was one of great hardship and opportunity for Wisconsin lawyers and judges. To practice their profession they had to cope with a lack of legal reference materials, a court system that required them to travel long distances over long periods of time using primitive transportation, and a public that viewed the legal system as worthy only of the respect that its lawyers and judges earned as individuals. On the other hand, "the great trust and ... the responsible duty of devising and establishing the primary institutions of a sovereign state" fell to the first generation as to no other generation. One of the first generation's successors exaggerated little when he said that "They were the leaders in public opinion, they were looked upon as the guiding stars in every enterprise, in every movement that interested or concerned the early pioneers."³³

From 1865 to 1900 lawyers and judges gradually became less distinctive figures in Wisconsin society, and the legal system as an institution came more to the forefront. This probably was inevitable given the rapid growth of the United States during this period, the passing of the frontier and the increasing role that government, industrial corporations and large institutions in general were coming to play in American society. The second generation of Wisconsin lawyers and judges continued to play an important part in the state's development, but they did so by refining an established system of law and legal administration rather than by creating an entirely new system. The legal blank slate that had existed at statehood was gone.

Joseph A. Ranney, Yale 1978, is a trial lawyer with DeWitt Ross & Stevens S.C., Madison. He is the author of several articles on legal and historical topics.

The forces that ended the heroic era and ushered in the institutional era of the Wisconsin bench and bar brought with them some consolations. As transportation improved and the number of courts grew, the practice of law became physically easier. The compilation and systematic publication of Wisconsin's statutes and case reports, together with the increasing availability of all sorts of legal publications throughout the state, made the practice of law easier for lawyers and judges and benefited clients by making the outcome of their cases more predictable than before. The ever increasing size of the court system and the establishment of a state bar made it more difficult for individual lawyers to stand out, but it also gave them more opportunity for companionship and decreased the problems of isolation that many of their predecessors experienced.

Endnotes

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¹ The author has compiled the figures in Table 1 from P.M. Reed, Bench and Bar of Wisconsin (Milwaukee, 1882), a series of biographical sketches that includes 332 attorneys in active practice in Wisconsin at the time of the survey. The "first generation" of lawyers is defined as all lawyers born before or during 1835, and the "second generation" is defined as lawyers born after 1835. Most lawyers in the first generation began the practice of law by the early 1860s, which roughly marks the end of Wisconsin's frontier period. Most lawyers in the second generation began practice during or after the early 1860s.

² Reed's sketches do not include all lawyers in Wisconsin; another lawyer, who attempted a more systematic survey in 1886, counted 1,349 practicing attorneys. Reports of the Meetings of the Wisconsin State Bar Association, 1878-1885 (Madison, 1904) (hereinafter Bar Reports 1878-1885), 45-46 (speech of Moses M. Strong to association, June 14, 1881). Reed probably intended his book to be a selective "Who's Who" of elite attorneys rather than a complete bar directory; thus, the public service percentages in the table may be higher than they would be for the bar as a whole. Nevertheless, in the author's opinion the contrasts between the first and second generation lawyers listed in Reed's directory probably reflect the contrasts between the first and second generations of Wisconsin lawyers as a whole.

³ L. Friedman, A History of American Law (New York, 1973), 525.

⁴ Many older practitioners criticized the law schools for turning out young lawyers "with no experience in business, with none of the hard knocks necessary," and "contend[ed] that the handmade article, the old-fashioned formulation, was more likely to win the battle of life." Reports of the Meetings of the Wisconsin State Bar Association, 1886-1899 (Madison, 1900) (hereinafter Bar Reports 1886-1899), 333 (speech of E.W. Keyes to association, Feb. 15, 1899). But law school education also had many defenders, and by the end of the century it was clearly the wave of the future. See Bar Reports 1886-1899, 112 (speech of Harlow S. Orton, June 16, 1886) and 138 (speech of E.E. Bryant, June 26, 1895).

⁵ In re Goodell, 39 Wis. 232 (1876). It should be noted that Goodell had earlier been admitted to practice before the circuit court for Rock County, and she continued to practice in that court after the supreme court's decision. At this time, the supreme court exercised no statewide control over admission to the bar; each court had the power to allow lawyers to practice before it. Goodell's application to the supreme court was sponsored by several prominent attorneys. Cleary, Lavinia Goodell, First Woman Lawyer in Wisconsin, 74 Wis. Mag. Hist. 243, 251, 258-63 (Summer 1991).

⁶ 39 Wis. at 245.

⁷ L. 1877, c. 300; Application of Miss Goodell, 48 Wis. 693 (1879).

⁸ These were Angie King of Janesville, Kate Kane of Milwaukee, F.F. Wheeler of New London and Mrs. T.M. Sumner of Waukesha. Reed, Bench and Bar of Wisconsin, 532.

⁹ See Bar Reports 1878-1885, 57-58 (speech of Moses M. Strong, June 14, 1881). Strong is representative of the older generation that agreed with Ryan's point of view. By contrast, John Cassoday is representative of the second generation's more liberal view. As Goodell's assemblyman, he sponsored the bill that paved the way for her admission. Cassoday became a leader of the bar and served on the supreme court from 1880 to 1907. Cleary, Lavinia Goodell, First Woman Lawyer in Wisconsin, 74 Wis. Mag. Hist. at 252-53, 265.

¹⁰ Feigenbaum, The Lawyer in Wisconsin, 1836-1860: A Profile, 55 Wis. Mag. Hist. 100, 101 (Winter 1971-72). By 1881 there were about 1,350 attorneys in the state. See supra note 2. Between 1850 and 1880 the bar actually grew at a somewhat slower rate than the state's population as a whole.

¹¹ Bar Reports 1886-1899, 174-75 (speech of William H. Seaman, Feb. 22, 1898).

¹² J.B. Winslow, The Story of a Great Court (Chicago, 1912), 47, quoting a letter from Moses B. Butterfield of Racine, June 11, 1850.

¹³ R.D. Marshall, Autobiography of Roujet D. Marshall (Madison, 1923), 1:257.

¹⁴ Bar Reports 1886-1899, 339 (speech of E.W. Keyes, Feb. 15, 1899).

¹⁵ Bar Reports 1886-1899, 176 (speech of William H. Seaman, Feb. 22, 1898).

¹⁶ These included the Chicago & Northwestern Railroad, the Wisconsin Central Railroad, the Green Bay and Minnesota Railroad, J.I. Case Co. and the Northwestern Mutual Life Insurance Co. Reed, Bench and Bar of Wisconsin, passim.

¹⁷ J.W. Hurst, The Growth of American Law: The Law Makers (Boston, 1950), 297-313; E. Langill, Foley & Lardner: Attorneys at Law, 1842-1992 (Madison, 1992), 72-78; Reed, Bench and Bar of Wisconsin, passim.

¹⁸ The territorial Legislature established a law library at the Capitol in Madison, which was operating at least as early as 1842. The state Legislature continued it and furnished funds to expand its collections. See Statutes of the Territory of Wisconsin (1842), 23 (act of Feb. 15, 1842, requiring territorial librarian to keep copies of legislative acts and journals); R.S. 1849, c. 5, § 5 (copies of laws to be deposited in law library); R.S. 1849, c. 22 § 1 (providing for distribution of supreme court reports to state library and circuit judges). Many of the state's more prominent judges and lawyers, particularly in Milwaukee, accumulated large collections of legal treatises and case reports from other jurisdictions. See, e.g., A. Beitzinger, Edward G. Ryan: Lion of the Law (Madison, 1960), 169. The supreme court reports from the mid-19th century suggest that both the court and the lawyers that appeared before it had available to them, and used, treatises and reports from many different jurisdictions.

¹⁹ A.E. Smith, The History of Wisconsin, Volume I: From Exploration to Statehood (Madison, 1985), 384-85.

²⁰ See "Advertisement" at beginning of Revised Statutes of the State of Wisconsin (Southport, 1849).

²¹ L. 1875, c. 203; L. 1877, c. 298; L. 1895, c. 306.

²² L. 1909, c. 546; State of Wisconsin Blue Book, 1987-88, 294.

²³ Langill, Foley & Lardner: Attorneys at Law, 1842-1992, 57-58; Bar Reports 1878-1885, 1-3, 10-12.

²⁴ See Bar Reports 1878-1885, 62-65, 79-91; Bar Reports 1886-1899, 123-26, 138-55, 174-79.

²⁵ Wis. Const. (1848) Art. VII, § 4.

²⁶ L. 1852, c. 395.

²⁷ L. 1877, c. 48 (proposing amendment to Wis. Const. (1948) Art. VII, § 4, approved by voters in November 1877); L. 1903, c. 10 (proposing amendment to Wis. Const. (1848) Art. VII, § 4, approved by voters in April 1903).

²⁸ Rev. Stats. 1849, c. 83, c. 86, c. 88.

²⁹ L. 1882, c. 55.

³⁰ In his history of the early supreme court, Chief Justice John Winslow concluded that this change was the single most important improvement in Wisconsin's justice system up to 1880. Winslow, The Story of a Great Court, 379-86.

³¹ See Marshall, The Autobiography of Roujet D. Marshall, 1: 415-16; Bar Reports 1886-1899, 159-60 (speech of Alexander Meggett, June 26, 1895); 268-72 (speech of Judge John R. Bennett, no date; probably 1898 or 1899).

³² See Marshall, Autobiography of Roujet D. Marshall, 1:401-18, 455-61 and sources cited in note 31.

³³ Wisconsin Bar Reports 1886-1899, 109 (speech of Harlow S. Orton, June 16, 1886), 333 (speech of E.W. Keyes, Feb. 15, 1899).

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