James G. Jenkins:The First Dean of Marquette Law School

00600737When Marquette University acquired the Milwaukee Law School and the Milwaukee University College of Law in the summer of 1908, one of its first tasks was to find a well-known dean for the institution now to be known as the Marquette University College of Law.  Although the new faculty was largely recruited from the ranks of the faculty of the two private law schools that it was to be absorbing, Marquette turned to retired federal judge James Graham Jenkins to be its first dean.  Although he was reportedly reluctant at first to take the position because of his age, Jenkins eventually agreed and served in that post for seven years.

Like many Wisconsin lawyers of his generation, Jenkins was a native New Yorker who had moved to Milwaukee prior to the Civil War.  He was born in Saratoga Springs on July 18, 1834, the son of New York City merchant Edgar Jenkins and Mary Elizabeth (Walworth) Jenkins. His maternal grandfather was Reuben Hyde Walworth, a former United States congressman and New York chancellor who in 1844 was nominated, unsuccessfully as it turned out, to the United States Supreme Court by President John Tyler.

Jenkins did not attend college or law school but instead studied law in the office of the New York City firm of Ellis, Burrill, and Davison for five years. He was admitted to the bar at age 21 and worked as “head clerk” for a New York law office for two years.  In 1857, he relocated to Milwaukee.

Over the next 31 years he engaged in the practice of law in Milwaukee. According to Jenkins, his first position in the city was in the law office of Jason Downer who paid him $3 per week.  However, within in six months he had become a partner with Downer, who in 1864 became a justice on the state Supreme Court.  Jenkins later formed a partnership with Edward Ryan and Matthew Carpenter, both legendary figures in the legal history of Wisconsin, and he was later a partner with the less-well remembered James Hickox.

An active Democrat, Jenkins did not serve in the Civil War.  However, he was one of the speakers at a mass rally on behalf of the Union war effort held in Wisconsin on July 31, 1862, and in 1863, he was elected Milwaukee City Attorney, a position that he would hold until 1867.  After leaving office, he formed his own law firm which was known at various times as Jenkins & Elliott; Jenkins, Winkler, & Smith; and Jenkins, Winkler, Fish & Smith.  In 1877, he chaired the state Democratic convention that nominated James S Mallory of Milwaukee for the state’s highest office.

In 1879, Jenkins himself was the Wisconsin Democratic Party’s nominee for Governor of Wisconsin, but he was beaten fairly soundly by Republican William E. Smith who received over 50% of the votes in a three-man race.  (There was also a Greenback Party candidate who received approximately 7% of the vote.)  In 1881, he was the Democrat candidate for the United States Senate, but the Republican majority in the Wisconsin legislature not surprisingly chose one of their own.

Jenkins’ services to his party did not go unappreciated.  In 1885, newly elected Democratic president Grover Cleveland offered Jenkins a position on the Supreme Court of the District of Columbia, but Jenkins declined the appointment.  However, on June 18, 1888, he was appointed United States district judge for the eastern district of Wisconsin by President Grover Cleveland and his appointment was confirmed by the Senate on July 2.  Although Cleveland was defeated for reelection in 1888, he was again elected president in 1892.  For his second term, he selected Judge Walter Q. Gresham, a former Republican turned Democrat, as his Secretary of State, and in 1893, Jenkins was appointed Gresham’s replacement as United States Circuit Judge for the Seventh Judicial Circuit.  His nomination was confirmed by the Senate and he sat on the Circuit Court until he retired in 1905 at the age of 71.

Shortly after his appointment to the Seventh Circuit, Jenkins was arrested following an indictment by a Milwaukee grand jury which concluded that he and the other directors of the failed Plankinton Bank had improperly taken money from the bank after it had become insolvent.  The story of Jenkins’ arrest was reported on the first page of the July 13, 1893 New York Times, but Jenkins resisted suggestions that he resign from the bench, and in November, the indictments were declared “null and void” by the Milwaukee Circuit Court.

Jenkins most famous (or infamous) judicial decision also came in 1893 in the case of Farmers Loan & Trust Co. v. No. Pacific Ry., 60 Fed. 803, in which he enjoined a strike against a railroad under receivership and in doing so coined the phrase “government by injunction” (which he viewed favorably).  Jenkins’ injunction, which was interpreted as barring the workers from quitting their jobs, was highly controversial, and there were efforts in Congress to censure him.  Eventually he survived the attacks, although the broader aspects of his ruling were narrowed on appeal.

After retiring from the bench in 1905, Jenkins returned to Milwaukee where he remained at least semi-retired, a status that meant that he was potentially available to fill the newly created position of dean of the Marquette University College of Law.  Although he was 74 years old in the fall of 1908, there were a number of reasons why he was an attractive candidate for the position of dean.  First of all, Jenkins’ prominence as a jurist brought a degree of luster to the law school.  In addition to his status as a federal circuit court judge, he also had been awarded honorary doctor of law degrees from the University of Wisconsin (1893) and Wabash College (1897).  He was also a member of the nine-lawyer committee that drafted the original American Bar Association Canon of Ethics which was formally adopted in the summer of 1908.

Furthermore, although Jenkins himself had not attended law school, he had been involved with legal education off and on throughout his career.  Early in his law practice, he had trained a number of attorneys in his office, including Milwaukee lawyers Horace Upham and Louis Lecher (once Jenkins’ secretary) both studied law under his direction.  While a judge, he had also lectured at law schools in Milwaukee and Chicago.

Although the extent of his involvement is not clear, he reportedly lectured at the Milwaukee Law School during its early years, and he was involved with the establishment of the John Marshall Law School.  John Marshall, an evening law school located in the Chicago Loop, had been founded in 1899, while Jenkins was still on the federal bench and based in Chicago.  He was one of the school’s original faculty members and was the featured speaker at its first commencement in 1902.  Apparently his connection to the law school was one that continued until his retirement from the bench in 1905.  In 1906, the Chicago school published several of his lectures delivered at the law school the year before which was his final year in the Windy City.

While his teaching probably involved little more than showing up a couple of nights a week and delivering lectures on federal court procedure, his experiences did provide him with some exposure to contemporary legal education, albeit of the night school variety.  The Milwaukee Law School and the Milwaukee University Law Schools had provided instruction at night, but the plan for the new Marquette University Law School was to have both a day and an evening program.

Jenkins was also not a Roman Catholic, but that does not appear to have been a major concern of the priests who ran Marquette University in 1908, as all but one of the original law faculty members were Protestants.  (The University took the same ecumenical approach to the recruitment of members for its Board of Regents which was founded in 1909.  The original regents included Jenkins and a number of other Protestants, and, shortly thereafter, Jews.) Although Jenkins was an Episcopalian, he did have a connection to Roman Catholicism in that his uncle, Clarence Walworth, was a convert to Catholicism and a founder of the Paulist Fathers.

One of the strategies of the new Marquette Law School was to supplement the instruction of the regular faculty (all of whom also practiced law) with lecturers drawn from the ranks of distinguished lawyers and jurists.  Presumably, Jenkins’ personal connections in Wisconsin and Illinois helped facilitate this, and the law schools’ first catalog lists 24 such lecturers, including Chicago federal judge Kenesaw Mountain Landis, later the first commissioner of Organized Baseball.  Jenkins himself was listed as a lecturer (and not a professor) with the Law of the Sea and Trade Marks listed as his subject areas.

The law school appeared to flourish under Jenkins direction.  The enrollment in the fall of 1908 was 127 students, including 77 freshmen, totals that far exceeded those of its two private law school predecessors.  Entry level enrollments leveled off after the first year but overall enrollments remained strong, and the number of students reached 166 in the fall of 1915, Jenkins last semester as dean.  Moreover, after initially holding classes in Johnston Hall, the law school obtained its own building in 1910, the Mackie Mansion, located on the current site of Sensenbrenner Hall.  In 1912, the law school was admitted into the Association of American Law Schools, an organization of law schools committed to higher admissions standards (at least a high school diploma or its equivalent) and an expanded curriculum (a three year law course).

Although Jenkins was a “full-time” dean and occupied one of the few faculty offices in the law school building (the Mackie Mansion), he taught very little and appears to have been somewhat detached as an administrator.  He was originally assisted by an associate dean—first Lynn Pease and then Edward Spencer, both former faculty of the Milwaukee Law School—but it appears that neither Jenkins nor the associate deans kept any records at all.  In 1911, Arthur Richter was hired as a full-time faculty member and secretary for the law school, but the situation did not appear to significantly improve.

The final years of Jenkins’ deanship were marked by controversy.  In 1914, Richter published an article in the American Law School Review (the leading publication devoted to legal education in the early 20th century) that accused the University of Wisconsin Law Department of unfairly lobbying the legislature to defeat a new bar admissions statute that would have eliminated the diploma privilege.  In reply, Professor Howard L. Smith of the University of Wisconsin attacked the character and quality of the Marquette Law School and noted, correctly, that Marquette had supported the diploma privilege until it became clear that the Wisconsin legislature until it became clear that the Wisconsin legislature was not going to extend the privilege to an institution that many Wisconsin lawyers still thought of as a night school.  Marquette, presumably with the approval of Jenkins, then threatened to sue the University of Wisconsin for libel.  This cross-state verbal warfare did little to help the reputation of Marquette and seems not to have harmed its public school neighbor.  It also did not help when it was revealed that during the acrimonious Richter-Smith exchange, Richter was secretly trying to secure an appointment to the Wisconsin faculty.

A more serious problem arose in 1915 when Marquette underwent a surprise inspection by the Association of American Law Schools to determine if it was in fact complying with AALS guidelines.  Although the 81-year old Jenkins decided somewhat abruptly to step down in the fall of 1915, there seems little doubt that his lax leadership and record keeping had made the investigation more likely.  Marquette was able to survive an effort to expel it from the organization the following year, but its poor record keeping clearly hampered its ability to prove its innocence.  Jenkins was replaced as dean by faculty member Max Schoetz, who began as acting dean but was given the permanent position the following year.

After stepping down as dean, Jenkins remained a member of the Marquette Board of Regents until his death in Milwaukee on August 6, 1921.  He also continued to be involved in a variety of civic affairs and sat on a number of boards of charitable organizations.  On September 30, 1917, the Milwaukee Old Settlers Club honored him for his 60 years of residence in the city.  After his retirement, he also published an article on the “Admiralty Jurisdiction of Courts” in Volume 4 of the Marquette Law Review.

Although it was written in 1897 for publication in a highly flattering biographical encyclopedia called Men of Progress: Wisconsin Jenkins would probably have been pleased with the following as his obituary:

He has always been a close student of the law, of general literature and of the arts; and these studies have given him a strength and a grace in all his efforts at the bar which not many of his professional associates have attained. Free from the tricks and cunning which too often disgrace the practice of a noble profession, he came to be recognized as one of the foremost and ablest of the bar of Wisconsin. As a practitioner he had his full share of notable cases in the courts, and conducted as large a percentage of them to successful conclusion as have the most prominent of his contemporaries.

His bust can be found on the first floor of Sensenbrenner Hall, just outside the elevator.

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Lavvie Dilweg (’27): MU Law’s Contribution to the NFL (and to Congress)

slide0005_image008Marquette University eliminated its varsity football team in 1960, and the heroics of the Golden Avalanche, Hilltoppers, and Warriors (as the team was variously known) are now dimly remembered, if at all.  There was a time, however, when Marquette produced a steady supply of players for the National Football League.   Beginning in 1920, a total of 70 former Marquette players found their way into at least one NFL game.

The first Marquette alumnus to play in the NFL was Edward Lewis “Bo” Hanley, a Milwaukee native who played wingback for the Detroit Heralds in 1920, the league’s inaugural season when it was known as the American Professional Football Association.   The 5’7”, 150 pound Hanley was born in Milwaukee in 1887, and was thus 33 years old during the 1920 season, his only year in the NFL.  When the Green Bay Packers entered the NFL in 1921, their center was 29-year old Marquette alumnus, Richard John Murray, the second Marquette student to play in the NFL.  “Jab” Murray, as he was known, was a native of Ocanto and was 6’1” tall and weighed a hulking 219 pounds.

The last Marquette player to join the NFL ranks was defensive back John Martin Sisk, Jr. who played for the Chicago Bears in 1964.   Sisk—whose father starred at Marquette in the 1920’s and with the Bears in the 1930’s—had played at Marquette as a freshman and then had transferred to the University of Miami when the school dropped football.   The last two Marquette football players to appear in the NFL were Minnesota Viking safety Karl Kassulke, who transferred to Drake University after Marquette dropped football and who entered the NFL in 1963, and Dallas Cowboy defensive lineman, George Andrie, who remained at Marquette for his senior year after the school dropped football and was then drafted by the Cowboys.  Both Kassulke and Andrie appeared in the Pro Bowl during their careers—Andrie did so on five occasions–and both appeared in the Super Bowl, albeit on the losing side.  Both players retired after the 1972 season.

However, the greatest of the Marquette alumni in the NFL was clearly LaVern “Lavvie” Dilweg, who played left end for the Milwaukee Badgers and the Green Bay Packers from 1926 to 1934, winning first team all-pro honors six times.

The 6’3,” 200 lb., Dilweg was born in Milwaukee in 1903.  He grew up in city of his birth and was a star football player at Washington High School in the late 1910’s and early 1920’s.  He continued his football career at Marquette where he won All-American honors as an end who played both defense and offense.

After two years in the college, Dilweg enrolled in the Marquette Law School from which he graduated in 1927.  The diploma privilege had not yet been extended to Marquette, but Dilweg took, and successfully passed, the bar exam during the summer following his graduation.  Having exhausted his college football eligibility prior to his third year of law school, Dilweg played for the NFL’s Milwaukee Badgers while attending law school during the 1926 season.

Dilweg was one of five former Marquette players on the Badgers roster that season.  Unfortunately, the professional Badgers, who featured eight rookie starters, were generally outclassed by their opponents in 1926.  The team finished with a record of 2-7, and folded before the official end of the season, bringing to a close Milwaukee’s official presence in the NFL.

In 1927, Dilweg signed with the Green Bay Packers and at the same time began the practice of law in Green Bay where he was to reside for the rest of his life.  During Dilweg’s years with the team, the Packers were one of the premier teams in the NFL, and he was one of its top stars.  After finishing second in 1927, and fourth in 1928, the Packers reeled off three consecutive NFL championships, and would have won a fourth in 1932, but for the NFL rule that ties did not count in the standings.  In 1932, Green Bay finished 10-3-1, but lost the title to the 7-1-6 Chicago Bears.   (Under modern rules, which treat ties as a half-win and half-loss, Green Bay would have been awarded the 1932 championship.)  Between 1929 and 1932, the Packers were a combined 44-7-3, with an undefeated 12-0-1 season in 1929.

In 1933, the NFL was divided into two divisions and the Packers level of play declined somewhat.  In both 1933 and 1934, they finished third in the NFL’s Western Division.   At the end of the 1934 season, Dilweg retired from football at age 31 to devote himself to his law practice and his other business interests.  He did, however, keep his hand in the sport by refereeing Big Ten football games on a regular basis until 1943.

In addition to his law practice, Dilweg was involved in the construction industry in Green Bay, as well as numerous other business and civic activities.  He served as a director of the Green Bay Blue Jays baseball team which was a member of the Class D Wisconsin State League, and from 1934 to 1943, he was in charge of the Green Bay Home Owners Loan Corporation (HOLC), a New Deal housing agency.

A strong supporter of Franklin Roosevelt, Dilweg was active in Democratic Party politics in Wisconsin.  In 1943, he was elected as a Democrat to the United States House of Representatives from Wisconsin’s 8th District.  His election marked only the third time since 1848 that the voters of Green Bay’s district had elected a Democrat to Congress.  By all accounts his celebrity as a former Green Bay Packer star contributed to his victory.  In the House, he served with a former Marquette Law School classmate, John B. Bennett of Michigan (’25), who was also elected in the fall of 1942.

Unfortunately for Dilweg, his stint in the House of Representatives turned out to be only a single two-year term as he went down to defeat with President Franklin Roosevelt as the Republican Party carried Wisconsin in the 1944 elections.  (Ironically, Bennett, a Republican, was also defeated in 1944, but he was later returned to Congress for nine additional terms.)

After leaving Congress , Dilweg resumed the practice of law in Green Bay but also maintained an office in Washington, D.C.  In 1961, he was named by President Kennedy as a member of the Foreign Claims Settlement Commission.  Dilweg died in Florida in 1968, just prior to his 65th birthday.  He is a member of the Green Bay Packers Hall of Fame, and his grandson, quarterback Anthony Dilweg, played in the NFL from 1989 to 1991 and with the Packers from 1989 to 1990.

The photo accompanying this post is of the Marquette Golden Avalanche preparing to play in the first Cotton Bowl in 1937.

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Remembering Professor Wally MacBain

Former Marquette law professor Wallace Alexander MacBain, III passed away on July 17, 2009, as the result of complications from a fall at his home in Nashotah, Wisconsin.  Professor MacBain was born in Audubon, New Jersey, on March 21, 1933.  His father, Wallace A. MacBain, Jr., was a member of the Industrial Union of Marine and Shipworkers of America. 

Prof. MacBain graduated magna cum laude from Rutgers Law School in 1959 where he was also a member of the law review.  He spent the early years of his  professional life involved with school desegregation issues and served as a consultant to the United States government on that subject.  He joined the Marquette faculty in 1965 where he remained until his retirement at the end of the 1994-95 academic year.  As a faculty member, he served under Deans Seitz, Boden, DeGuire, and Barkan.

At Marquette, he served for several years as director of admissions (when that was still a position held by a faculty member).  Over the course of his career he taught a wide variety of courses, but his specialties were Constitutional Law, Civil Rights Legislation, and Conflicts of Law.  He was frequently quoted in the Milwaukee newspapers, and his most widely cited article had to do with the insanity defense.

His colleagues remember him as a devoted academic citizen and as a wonderful story teller.  He is survived by his wife as well as two children and two step-children and a number of grandchildren.

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