MAY IT PLEASE THE COURT --
Your committee appointed at the last term of this court to prepare and present resolutions commemorative of the life and work of the Honorable John H. Mulkey, deceased, would respectfully report as follows:
Judge Mulkey having been so long a resident with us here in Cairo, we have deemed it fitting and proper to present at the beginning a short biographical sketch of his life.
Judge Mulkey's ancestors were Scotch-Irish people. One of them came to one of the Carolina's about the middle of the eighteenth century. He shortly afterwards married a woman whose acquaintance he had made on his voyage to America. Some of the children of this family came north ward and westward and settled in Tennessee and Kentucky. One of these was Judge Mulkey's grandfather, .lohn Mulkey, who was born January 14. 1773, and died December 13, 1844. He came to Monroe county, Kentucky, at an early day. One of his sons was Isaac Malkey, who married Abigail Ragen, December 18, 1821, in Monroe county. They had nine children, John H Mulkey being the second one of them. He was born in Monroe county. Ky . May 24, 1824. Monroe county is on the Tennessee line directly south of Louisville and about sixty miles northeast of Nashville. The family remained in that county until a few years after the birth of this son when they moved to La Fayette, a town in Christian county, Kentucky, about one hundred miles west of their former home. Here his father, Dr. Isaac Mulkey, practiced his profession, and his son John for a considerable time attended Bacon college at Hopkinsville, the county seat, where he acquired a fair knowledge of the Latin language along with the other branches of study which he carried on.
We know very little of his earlier years spent in Kentucky; but in August, 1845, very soon after he became twenty-one years of age, he visited Southern Illinois in search of employment as a school teacher.
He passed Vienna and Marion in Johnson and Williamson counties
and found a school at or near Benton, in Franklin county, which he taught for a time. It was, no doubt, through his influente that his father left Kentucky in 1848 and came to Illinois where his son was.
His father soon removed to Ashley, in Washington county, where he died in 1884. Judge Mulkey remained at Benton. in Franklin county, and in adjoining counties, some times teaching school and sometimes farming and at other times engaged in selling goods and dealing and trading in stock; and all the time, no doubt, having his eye steadily fixed upon the profession and practice of the law. If in the later years of a man's life, we can get a fairly clear view of what his earlier life was, we would say of Judge Mulkey that in those years of his life when Franklin and Williamson counties were chiefly the scenes of his work and employment, there was exhibited in his conduct and language that same tenacity of purpose that so characterized him when he had come to the full maturity of his powers.
He was married at Benton March 23, 1846, to Margaret Cantrell, a daughter of Larkin Cantrell, of that place. He enlisted in the army in the war with Mexico, at Benton, July 18, 1847, and received his discharge from the service in July, 1848. He was chosen Sergeant on his enlistment, and April 4, 1848, became 2d Lieutenant of Company K, of the 2d Regiment of Illinois Infantry Volunteers.
After his return from the army, he took up the study of the law, but at the same time teaching schcol and engaging in other work. No one but the young man who has passed through such an experience knows or can know what it is. The purpose to go into this or that profession is often greatly shaken and often turned aside by the pressing needs of earning one's living. He studied law at Marion with Judge William J. Allen, who, though a younger man, was somewhat in advance of him in admission to the bar and in the practice. He was examined for admission to the bar by Judge Willis Allen, the father of Judge Allen, and received his license to practice law in the year 1853.
He began to practice at Marion, and lived and practiced awhile at DeSoto, in Jackson county; and in 1857 he came to Cairo where he remained until June, 1858, when the destructive floods occurred which so discouraged a great many people that they left the town. Among these was Judge Mulkey, who went to DuQuoin, where he remained for a short time. He returned to Cairo probably in 1860, for he was elected Judge of the Court of Common Pleas of this City in June, 1861, to succeed General Isham N. Haynie, who had become Adjutant General of the State. He was again elected Judge of this same court in June, 1867, and held that position until the court was discontinued by the Legislature February 18, 1869. He was also elected Judge of the Circuit Court in April 1864, to succeed Judge Alexander M. Jenkins who had died. He held the position of circuit judge until some time in September or October, 1865, when he resigned and was succeeded by Judge William H. Green. He was, therefore judge of the Court of Common Pleas almost eight years, and judge of the Circuit Court about a year and a half. While in Cairo he was a member of the firm of Mulkey, Wall & Wheeler, and at a later date he was a
short time, the senior member of the firm of Mulkey, Linegar & Lansden. In order book B of the Court of Common Pleas, page 259, and in order book D of the circuit court, page 391, will be found recorded two of the oommissions issued to Judge Mulkey by Governor Richard Yates, and his oaths of office.
He became a candidate for judge of the Supreme Court for this district and was elected to that position on the 2nd day of June, 1879, which position he held for the nine succeeding years, ending in 1888. He took his seat upon the bench at the June term of court, 1879 at Mt. Vernon. Shortly after this his health seeming to require it, he visited Carlsbad where he remained a number of months. He returned very much improved in health, and taking his place upon the bench, he remained there until the close of his term which was with the March term of court, 1888.
It was therefore from ]1853 to 1888, a period of 35 years, that he was almost all the time engaged in the practice of law or in the discharge of his judicial duties upon the bench. About half of that time he was engaged exclusively in the practice of the law. With some of us, it would seem difficult perhaps, to decide whether he was best adapted to practice at the bar or to the discharge of the duties pertaining to high judicial positions. But in the judgment of your committee, .Judge Mulkey was in his best and most appropriate place when presiding as judge of a court. The duties of the two positions are widely separate. The lawyer is employed to obtain a decision for the side he represents. The judge sits upon the bench solely for the purpose of deciding which one of the litigants is in the right and entitled to the judgment of the court in his favor. The duties these different positions impose are so unlike that they forbid comparison. It must be true that years spent in these different positions will stamp upon the men who occupy them such mental characteristics and habits of thought as will, to some extent, disqualify the one for the discharge, in the best way, of the duties of the other. Hence, it is often found that some of the best lawyers fail to make the best judges, and sometimes fail to make even good judges.
This is a somewhat lengthy biographical sketch for such a paper as this, and forbids our taking the time we would like to take in an attempt to set forth properly the character and standing of the man whose memory we now commemorate.
It has long been said that poets are born, not made. In a limited sense this is true of great lawyers and great judges. Judge Mulkey was both. It was not necessary that he should have been born in some far off state or have lived and practiced and presided as judge in some great city. Greatness is not confined to place or time. Work, study and application will accomplish wonderful results, but to attain to high position at the bar or on the bench there must be found those great natural gifts without which great prominence is seldom obtained. Judge Mulkey was a student but perhaps not a great one. He had not the need of it like the most of us, and yet no word ever came from him that would encourage any young man to
rely on his natural talents and gifts. His three words to him would have been work, work, work.
Judge Mulkey's reasoning powers were of the highest order. Whatever the work in hand was, the same careful, clear and satisfactory method of procedure was followed, analyzing and putting together, step by step, until the conclusion was reached. He was not the readiest of men to formulate an answer to a subtile and sophistical argument, but he would at once instinctively see that it was in some way unsound, and soon its error would be made as clear as noonday by his matchless analysis. To many persons he seemed to proceed slowly, but it was his great caution to avoid any weak place in the chain of the argument, because he felt, more than most men do, that the final result depends wholly on your absolute assurance that every step taken must be a safe one and every link forged a perfectly sound one. He was never satisfied until he got to the very bottom and felt his feet standing on the solid rock. Some of us have seen him when his side of the case had no solid rock or bottom to stand on, for such was his lot sometimes as it is of every lawyer. In such cases, he would fight on to the last, but it was generally seen that his heart was no longer in it.
There was no department or branch of the law with which he had to deal in which he did not show his great talents and knowledge. He had few superiors anywhere in the intricate system of our English common law pleading and practice. Few of us can now realize what the mastery of that system meant or signified. Nor can we say less of him when we speak of our old English system of chancery or Equity pleading and practice. Unlike as those systems were and are they were and are great fountains of legal procedure, from which one could draw for a life time and yet not exhaust them.
In all the branches of the law of real estate, especially in those relating to remainders, uses and trusts, he possessed a knowledge equalled by few in our country. Recent statutory enactments have introduced so many modifications that less of this subtile and abstruse learning is now required, but it was once a great field of law, and Judge Mulkey had worked that field faithfully and well.
No matter what the branch of law was which was being explored, if it were more or less new to him, he invariably would venture little about it until he had time and opportunity to explore it fully and carefully. He had a profound sense of the length and the breadth and the height and the depth of the great ocean of law, and he felt, more than most lawyers and judges, the folly of attempting to deal with any part of it without fully realizing the nature of the undertaking.
Judge Mulkey was a good trial lawyer, not perhaps so quick and alert as some are, but taking his time and going on in that careful and safe manner that always promises the best, because the surest, results. He always took his time in making an argument—he would not be hurried. He always impressed the jury with his fairness. He turned over the case to them and let them view it in all its parts and phases, giving plain and common sense illustrations, suited to their
limited knowledge of the law. He made no attempt to win them over by eloquent speech, but now and then he would avail of a striking little story, so apt and forceful that everyone could see how much he had gained by its introduction into his argument. While before the jury as before the court, he was an able and impressive lawyer, yet it remains still to be said that back of all that he said or did was that strong personality, nature's own gift, which somehow seemed to project itself into the minds of those whom he was addressing and cause them to see the case just as he saw it. This was indeed one of the most striking features of his character—perhaps the most striking. It is sometimes called will power; but whatever it may be called, it was beyond question one of the chief things felt and feared by opposing counsel in their great contests at the bar.
This personality or will power of which we have just spoken, no doubt manifested itself in the Supreme Court quite as much as it did anywhere else. It was his personality and it could not be laid aside or put off as might a garment. Judge Mulkey's active duties upon the Supreme bench extended over a period of about eight years, taking out the time he was absent on account of poor health. He wrote about four hundred opinions, besides a few dissenting opinions. This would make about fifty opinions for each year of the eight. This does not seem like a large number, but we must not forget the work and labor he bestowed in the study of the thousands of other cases in which the six other judges wrote. Besides, in the cases in which he wrote there were seventy- two of them in which one and sometimes two or three judges dissented. This shows how the cases must have been investigated and studied before their final disposition. We have not time to refer to particular rases, but will say that the very short concurring opinion written by him in that most celebrated Anarchists'case in the 122d volume of our reports attracted wide attention and was greatly commended by many of the great leading journals of this country.
His opinions are found in volumes 92 to 125 of our reports, or 33 volumes in all, none being found in the 95th volume. These opinions will be found to set forth most fully the character and standing of Judge Mulkey in relation to the administration of law, that most important feature of all civil or civilized governments. The record he has made in these volumes will remain to honor him as long as our language and our law remain to influence and bless the world.
Judge Mulkey's first wife, whom he married March 23, 1846, died June 2, 1871, here in Cairo. They had eight children, two of whom are William C. and C. L. V. Mulkey, whom most of us know and who are and have been formally years honored members of the bar. He married September 25, l873, Miss Kate House, of Metropolis, a sister of Mr. Leek's mother. They had two daughters, one of whom died some two or three years ago.
We must not close this sketch without some reference to the religious beliefs and life of Judge Mulkey. During the last twenty-five years of his life of eighty-one years he gave to the great matter of religion his most careful thought and most loving and devoted attention.
It had engaged his attention in a marked degrree in his earlier years, and he turned back to it again with a great joy in his heart when his professional work in the law had about come to a close.
His grandfather, John Mulkey, was a Baptist minister of prominence in Kentucky and with the celebrated Barton Stone, was a fore-runner of the even more celebrated Alexander Campbell, who organized what was once generally called the Campbellite church but now more generally called the Christian church or the Church of the disciples. Dr. Isaac Mulkey, the Judge's father, was also a minister of the same church, and the Judge himself a member of it for a time; but in later years he seems to have turned aside for a short time from all churches and religious matters and to have become something of an agnostic. But in this condition of mind he did not long remain. His first wife became a member of the Roman Catholic church a short time before her death, and while we do not know, it may have been this which first led him to the investigation and study of that church. At all events, some twenty-two or twenty-three years before his death and after a full and careful consideration of the various churches and religious organizations, he became a member of the Catholic church, and with an ever increasing confidence in his belief, he lived in the fullest sense of the word the life of a good Catholic and died in the firm and implicit belief in the faith of that church. He died at Metropolis July 9, 1905, having reached the age of eighty-one years, one month and fifteen days.
We thus see how this family from generation to generation have given their attention to those matters and things which relate to a future life, and which must ever remain far more important than the profession of the law or any other secular calling or employment.
John M. Lansden
Wm. B. Gilbert
William S. Dewey
Committee of the Alexander County Bar.