LANDMARKS OF A 
 LAWYERS LIFETIME 
 
 THERONGSTRONG 
 
 CORNELL LAW LIBRARY 
 
aiorn^U Ham ^rl|onl ffiibtara 
 
 (iift of 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018821607 
 
LANDMARKS 
 OF A LAWYER'S LIFETIME 
 
LANDMARKS OF 
 A LAWYER'S LIFETIME 
 
 BY 
 THERON G. STRONG 
 
 NEW YORK 
 
 DODD, MEAD AND COMPANY 
 
 1914 
 
COPTKIGHT, 1014 
 
 By DODD, mead & COMPANY 
 
TO 
 
 MARTHA PRENTICE STRONG 
 
 MY BELOVED PARTNER 
 FOR THIRTY-SIX YEARS 
 
MAY IT PLEASE THE COURT: 
 
 In submitting to this, the highest of all tribunals 
 — the court of public opinion — the record now pre- 
 sented, a word of explanation may perhaps be per- 
 mitted. 
 
 It consists of testimony relating to personages 
 amd events at the bar of the City of New York, dur- 
 ing the past forty years, from the view-point of a 
 casual observer. It does not profess to have the 
 merit of biography, nor the accuracy of history, but 
 is rather in the nature of freehand sketches of 
 notable lawyers and interesting incidents, amid the 
 passing show of the courts. In its recital, the testi- 
 mony, at times, wanders off into comments and 
 opinions which are, of course, subject to correction 
 by those better qualified to speak, but, whatever its 
 value may be, it is hoped that the court will not find 
 it immaterial or irrelevant, although some of it may 
 not be perfectly competent. A large amount of val- 
 uable testimony is available, relating to eminent 
 judges and distinguished lawyers now living, which, 
 for obvious reasons, it would not be proper at this 
 time to present. 
 
 January, 1914. 
 
CONTENTS 
 
 OHAPTEB PAOE 
 
 I Some Old-time Lawteks 1 
 
 II The CotJBT op Appeals 34 
 
 III Notable Appellate Justices . . . . 68 / 
 
 rv Some Judicial Peesonages and Chabaoteb- 
 
 isncs 113 
 
 V Political Influences and Upheavals . . 145 
 
 VI The Association op the Bab .... 156 ^ 
 
 VII Mb. Justice FiEaj> 180 ^ 
 
 VIII William M. Evabts 191 - 
 
 IX Chables O'Conob 217 , 
 
 X Geoege F. Comstock 228 / 
 
 XI John K. Poeteb 241 
 
 XII A Geeat Fathee-in-Law 252 
 
 XIII Leadees op the Bab 264 
 
 XIV William F. Howe 294 
 
 XV Some Legal Lights op New Jeesey . . 309 
 
 XVI A Unique Tbio 323 
 
 XVII The Modeen Lawteb 346 ' 
 
 XV HI The Modebn Law Oppicb 384 • 
 
 XIX OuB Sistees-in-Law 407 
 
 XX Codes, Eepobts and Text Books . . . 416 
 
 XXI Soueces op Business 441 , 
 
 XXII Fees, Regulab and Contingent . . . 454 v 
 
 XXin The Lawteb 's Recbeations 477 ^ 
 
 XXrV Memoeies of the Coubts 495 
 
 Conclusion 538 
 
LANDMARKS 
 OF A LAWYER'S LIFETIME 
 
THE LAW IS GOOD IF A MAN USE IT LAWFULLY. 
 
 1 Tim. 1:8. 
 
 AND DO AS ADVERSARIES DO IN LAW, STRIVE 
 MIGHTILY, BUT EAT AND DRINK AS FRIENDS. 
 As You Like It. 
 
CHAPTER I 
 
 SOME OLD-TIME LAWYERS 
 
 The tendency, by reason of heredity or environ- 
 ment, of successive generations in a family to en- 
 gage in the same pursuit is probably true of the 
 law, as of other occupations. This is doubtless the 
 reason that many of my ancestors, relatives and 
 family connections have been lawyers. I allude to 
 it because it enables me to furnish from my own ex- 
 perience and recollection a better illustration of 
 old-time lawyers and their practice and associations 
 than would otherwise be possible. 
 
 The Connecticut Strongs have produced a long 
 and numerous line of lawyers, headed by my great- 
 grand-father, Col. Adonijah Strong, followed by his 
 son, Judge Martin Strong, and by Adonijah's 
 grand-son, Mr. Justice William Strong, of the Su- 
 preme Court of the United States, and Martin's son, 
 my father Judge Theron R. Strong, of the New 
 York Supreme Court and another of Adonijah's 
 grand-sons, Judge William Strong, United States 
 District Judge in Oregon and by a great-grand-son 
 of Adonijah's, Judge Robert N. Willson of Pennsyl- 
 vania, a nephew of Mr. Justice Strong, and many 
 others of us plain practitioners who have borne the 
 cross, but did not wear the crown of judicial dis- 
 tinction. Then there are the Long Island Strongs, 
 
 headed by Judge Selah B. Strong of the New York 
 
 1 
 
2 LANDMAKKS OF A LAWYER'S LIFETIME 
 
 Supreme Court, an associate on the bench, with my 
 father, followed by the Strongs who founded the 
 practice of that distinguished firm — Strong & Cad- 
 walader of New York City, in which for many years 
 there was no Strong, but the name was regarded of 
 sufficient value to be retained. The progeny of these 
 two branches of Strongs ramified far and wide in the 
 field of law, and quite likely a few more judges 
 among them might be unearthed by more or less 
 diligent search, and if the fates had been kinder upon 
 my two nominations for a judgeship by the Republi- 
 cans of New York City, I might have added another 
 to the list of Supreme Court Judges. It is a matter 
 of satisfaction in looking over the roll of these 
 worthies of the bench and bar, that in about a century 
 and a half neither the sentence of sus per coll nor of 
 disbarment has been pronounced against any of 
 them. 
 
 Adonijah, the son of Noah, the son of Preserved, 
 the son of Jedediah, the son of John the Puritan, 
 one of the first settlers of Northampton, Massa- 
 chusetts, was surely of good Puritan stock. I do 
 not know how or where he was educated, but there 
 is good testimony to his efficiency as a lawyer. 
 The course of study which he pursued was doubt- 
 less like that of other colonial lawyers, a prominent 
 illustration being John Adams of Massachusetts, 
 who, however, had access to resources which were 
 not available to the coimtry practitioner. He tells 
 us in his diary in 1760, when he was about 25 
 years of age, that he had read a multitude of law 
 books. Coke on Littleton, Wood's "Institutes of 
 
SOME OLD-TIME LAWYERS 3 
 
 Civil Law," Lillies' "Abridgement," Salkeld's Re- 
 ports, Swinburne, Fortescue, Fitzgibbon, Justin- 
 ian's "Institutes," Cowell's "Institute of the Laws 
 of England," Imitations of Justinian, Doctor & 
 Student, Finch's "Discourse of Law," Hale's His- 
 tory, Cases in Chancery, and the General Treatise 
 of Naval Trade and Commerce. The office of the 
 country lawyer, even toward the end of the eight- 
 eenth century, contained little more than Coke on 
 Littleton, Comyn's Digest, Bacon's Abridgement, 
 Hale's or Hawkins' Pleas of the Crown, Blackstone, 
 Lillies' Entries, Saunders Reports and some brief 
 book upon pleading and on practice. Lacking 
 books, and with the undeveloped law of commercial 
 relations and personal rights, most of the students 
 devoted themselves to real property and pleadings, 
 as found in the difficult pages of Coke on Littleton 
 and the still more difficult ones of Brackton, Brit- 
 ton, Fleta and Glanville. 
 
 While Adonijah was rough-hewn, like most of the 
 men of those days, he was evidently a leader of men, 
 and a patriot as well, for as colonel of the militia 
 and later as commissary-general, he turned his 
 plowshare into a sword, and his pruning hook into a 
 spear and gave his services to his country in the days 
 of the Revolution. At its close he turned them back 
 again, and being enrolled as one of the original mem- 
 bers of Washington's society of the Cincinnati he 
 resumed his farming and his law. His early ad- 
 vantages were, of course, few, but his mind was 
 strong, his wit keen, he abounded in common sense, 
 he had studied hard and was therefore well equipped. 
 
4 LANDMARKS OF A LAWYER'S LIFETIME 
 
 His was a powerful personality, and while his wit 
 was rough edged, and he had peculiarities and eccen- 
 tricities, his influence with juries was great, his prac- 
 tice for those days was large, and he attained emi- 
 nence in his locality. 
 
 There is a shelf in my library which holds a little 
 line of venerable volumes testifying to the patient 
 study of Adonijah and of Martin and of my father, 
 and I may add, of myself. There is among them a 
 complete set of Dumford and Easts' reports, known 
 as the Term Reports, which contain the immortal de- 
 cisions of Lord Mansfield and Lord Kenyon, also a 
 huge tome entitled "Jacob's Law Dictionary," a 
 copy of Powell on Contracts, two volumes of Les- 
 pinasse's reports, all bearing the book-plate of Adon- 
 ijah, a couple of volumes of Connecticut reports, 
 bearing Martin Strong's autograph, and some early 
 works of my father's. I must not omit, however, to 
 mention other books of theirs of a more personal 
 character, which reveal the years of preparation and 
 the days of slender practice. There is an ordinary 
 blank-book, one of three volumes, containing the 
 clear handwriting of my grandfather, Martin 
 Strong, recording his notes of lectures delivered by 
 Judge Gould in the famous law school of Litchfield, 
 Connecticut, from which he graduated in 1802. This 
 was the year of my father's birth, which shows that 
 Martin, while a diligent student of law, was at the 
 same time a pater familias. Then there are two 
 large blank-books containing the handwriting of my 
 father when he, too, was an attendant of Judge 
 Gould's law school in 1822, and there is another con- 
 
SOME OLD-TIME LAWYERS 5 
 
 taining Ms account of fees and expenditures from 
 the time lie began practice in Palmyra, New York, 
 in 1826, to which I shall allude as an illustration 
 of the modest fees of those early days. 
 
 It is generally true, I think, of the rural lawyer 
 of former times, and it is, at least, true of my ances- 
 tors of the law, that they combined with their pro- 
 fessional practice, to a greater or less extent, the oc- 
 cupation of farming. Land which yielded rich har- 
 vests was abundant. Their practice was not suf- 
 ficient to engage all their time; the court sessions 
 were infrequent; their homes could be conveniently 
 located within easy reach of the village centre so as 
 to admit of cultivation of a generous acreage, and it 
 was, therefore, quite natural, and entirely practic- 
 able, to manage a farm without neglecting the prac- 
 tice of law. Ool. Adonijah Strong's home was 
 thus located on the crest of Town Hill in the Village 
 of Salisbury, Connecticut, now known as Lakeville, 
 on the border of its beautiful lake, and commanding 
 an extended and attractive view of the surrounding 
 coimtry. The offices of these old-time rural law- 
 yers when not in their residences were frequently in 
 small buildings erected for that purpose on their 
 own grounds. This was true of my father after he 
 became judge and of my mother's father to whom, 
 later on, I shall refer. It is on a part of Adonijah's 
 farm that in later years the celebrated Hotchkiss 
 School was located. 
 
 Judge Donald J. Warner, some years ago in his 
 reminiscences of the Litchfield County Bar, refer- 
 ring to Adonijah Strong, said: "He was one of the 
 
6 LANDMARKS OF A LAWYER'S LIFETIME 
 
 roughest pieces of granite that ever existed; with 
 a powerful mind, full of wit and humour, of great 
 commonsense, and much force and ability, which 
 produced a marked effect upon the court and jury. 
 He belonged to the Congregational Church and was 
 a great supporter of it. There was another colonel 
 there. Col. Joshua Porter, who was the ancestor of 
 distinguished sons, one of them a member of the 
 cabinet under the presidency of John Quincy Adams. 
 At one time the Methodist people organised a society 
 in Salisbury to which there was a great deal of op- 
 position. They held a meeting in the old school 
 house on Ore Hill, and Col. Strong and Col. Porter 
 made up their minds to attend, but not for any re- 
 ligious purposes. Each had a distinctive reputa- 
 tion — Col. Strong of imbibing considerably and eat- 
 ing heartily, and Col. Porter — well — of another 
 kind, and it can easily be guessed what that was ; it 
 is spoken of in the Scriptures. Well, the clergyman 
 who was to officiate on that occasion had been advised 
 of their coming and Col. Strong's character was por- 
 trayed, and so was Col. Porter's. They went in and 
 took seats and after a while the clergyman was por- 
 traying characteristics of different individuals and 
 shouted inquiringly, "where is that wine-bibber and 
 glutton?" Col. Strong arose and said: "Here I 
 am, sir," and sat down. He then took up other 
 wrongdoings and when he reached the sinner of Col. 
 Porter's type, he inquired, "and where is he?" 
 Col. Porter sat still, whereupon Adonijah said: 
 ' ' Col. Porter, get up and answer to your name, as I 
 did." 
 
SOME OLD-TIME LAWYERS 7 
 
 The incident he refers to must have occurred, I 
 think, in his earlier days, soon after his return from 
 service in the War of the Eevolution, for his later 
 years were characterised, I am sure, by dignity and 
 self-respect, which won for him the confidence and 
 esteem of his fellow-citizens ; and surely his influence 
 must have been excellent upon his sons, who were 
 men of the highest character, one in the law and 
 two in the ministry. And we are not wanting in ex- 
 cellent testimony as to this. In the records of the 
 bar of Litchfield County there appears the follow- 
 ing minute: "At a Bar meeting, December Term, 
 1804, the following resolution was passed unani- 
 mously, namely: that Adonijah Strong, Esq., on ac- 
 count of his great eminence as a lawyer and elo- 
 quence as an advocate be considered as a member of 
 this Bar for the purpose of instructing students, al- 
 though he shall not continue to practice." Possibly 
 this may have been not only an excellent way of pro- 
 viding a suitable instructor for the embryo lawyers, 
 but of getting rid of a very formidable opponent. 
 However this may be, this testimonial, coming from 
 the men of his own time, is one of which he may have 
 well been proud, as certifying to his personal worth 
 as a man in making him the guide of the young men 
 of the day, and to his qualifications from the stand- 
 point of individual eminence, as learned in the law 
 and accomplished as an advocate in the courts. 
 
 The contribution, however, which Adonijah made 
 to the ranks of the Bar through his lawyer son, 
 Martin Strong, and of his two clergymen sons, Wil- 
 liam and Henry, each of whom became the father of 
 
8 LANDMARKS OP A LAWYER'S LIFETIME 
 
 an excellent judge, was one in whicli lie would have 
 taken an honest pride. At the time of the resolution 
 referred to, Martin had recently finished his course 
 in Judge Gould's law school and entered upon prac- 
 tice as a lawyer. He combined the occupation of 
 farmer with the practice of his profession. He was 
 evidently held in high esteem by his fellow citizens, 
 serving them as a member of the Legislature, later 
 as State Senator, and was finally honoured by his se- 
 lection as senior Associate Justice of the County 
 Court of Litchfield County. He was of immense 
 physical proportions, weighing, it is said, 300 pounds. 
 In attending the sessions of the County Court he 
 was usually accompanied by his wife, who was as di- 
 minutive as he was large, and the wagon in which he 
 drove from Salisbury to Litchfield was not only fur- 
 nished on his side with a stronger spring to equalise 
 the weight, but the wagon seat, which I once saw, was 
 divided by a partition which left two-thirds of it 
 for his own use and one-third for his wife, the par- 
 tition serving the purpose of preventing his huge 
 bulk from crowding her out of the wagon. 
 
 I have in my ofiice the chair which he used in the 
 court sittings, which is itself testimony to his ample 
 proportions. 
 
 It is said that he never devoted himself very as- 
 siduously to the practice of his profession, but be- 
 ing characterized by sound common-sense and fur- 
 nished with a reasonably fair knowledge of legal 
 principles and maxims, he was able to discharge his 
 duties to the satisfaction of the county for nine years. 
 He was evidently a good listener, for when his three 
 
SOME OLD-TIME LAWYERS 9 
 
 hundred pounds were once seated on the bench, it is 
 related that he sat perfectly quiet until the loud 
 proclamation of the sheriff announced the adjourn- 
 ment of the court. Like his father, Adonijah, he 
 had a large family of children, of whom his second 
 son, Theron R. Strong, was my father. 
 
 A history of Wayne County, edited by Hon. George 
 W. Cowles of Clyde, late County Judge of Wayne 
 County, contains the following: 
 
 "One of the most conspicuous figures at the Bar 
 of Wayne County was Theron R. Strong. He was 
 born at Salisbury, Connecticut, November 7, 1802; 
 his father was Martin Strong, for many years a 
 State senator and County Judge of Litchfield County, 
 Connecticut; his grandfather, Judge Adonijah 
 Strong, also a Colonel in the Revolutionary War. 
 
 Theron R. Strong was intended for other than pro- 
 fessional pursuits, but his inherited love for the law 
 led him to its study and finally, after much opposi- 
 tion, he was permitted to pursue his studies for one 
 year in the justly celebrated law school of Judge 
 Gould in Litchfield. He then sought the West, as it 
 was then called, and for a time located in Washing- 
 ton County, where, in the office of Cornelius L. Allen, 
 later a Justice of the Supreme Court, he continued 
 his studies. After admission to the bar he sought 
 a permanent location, and with means insufficient 
 to support himself in one of the cities of the State, 
 he finally selected Palmyra as his field of practice. 
 
 His early years were those of struggle and hard- 
 ship and his slender means were often at so low an 
 ebb as to deprive him of the necessaries of life, but 
 
10 LANDMAEKS OP A LAWYER'S LIFETIME 
 
 his sterling worth, although hidden by a natural 
 diffidence and modesty, was soon discovered, and, 
 equipped with a thorough mastery of legal prin- 
 ciples, he won the confidence of and attracted as 
 clients the most desirable citizens of Wayne County. 
 He was associated in business with Hon. O. H. 
 Palmer, and the firm of Strong & Palmer was for 
 many years among the leaders of Wayne County. 
 
 He was chosen in 1831 District Attorney; in 1839 
 he was elected member of Congress ; in 1842 he be- 
 came Member of Assembly and in 1851 he was elected 
 Justice of the Supreme Court. He filled this posi- 
 tion eight years, during one of which he sat as Judge 
 of the Court of Appeals. 
 
 Judge Strong after retiring from the bench prac- 
 ticed several years with conspicuous success in 
 Rochester, New York, and subsequently with even 
 greater success in New York City. His grasp of 
 legal principles, his remarkably sound judgment, his 
 power of application, his patient industry, his un- 
 assuming and courteous demeanor, won for him as 
 a practitioner unlimited confidence, and commanded 
 for him as a judge the respect and regard of the bar ; 
 and among all classes in Wayne County, the name 
 of Theron R. Strong was synonymous with the high- 
 est qualities of christian citizenship. He died in 
 New York City on May 14, 1873, honored by the 
 bench and bar of that City." 
 
 The Wayne Sentinel, a weekly paper published in 
 Palmyra, shows in its earlier years his identification 
 with the various schemes of intellectual and local 
 improvement, and for two or three years he assumed 
 
SOME OLD-TIME LAWYERS 11 
 
 its editorship, and in it will be found many editorials 
 from his pen. 
 
 His growth and advancement as a lawyer were 
 steady, until his position in Wayne and the adjacent 
 counties was easily first, and his influence was such 
 that it used to be said of him that his summing up 
 to a jury was equal in point of weight and import- 
 ance to that of a considerable number of excellent 
 witnesses, owing to their reliance on his truthful- 
 ness, and his freedom from arts often employed to 
 mislead. 
 
 The account books of my father bear abundant evi- 
 dence of his early struggle to build up a practice, and 
 its steady growth during the succeeding years. I 
 suppose his fees were about the same as other village 
 lawyers of that time. Most of the charges are of 
 insignificant amounts, such as 50^ for writing a letter 
 for some illiterate farmer, 75^ for drawing a deed, 
 $2.50 for drawing a deed, bond, mortgage and agree- 
 ment, $1.00 for advice, $3.00 for assisting some client 
 in the trial of a case before a Justice of the Peace, 
 and from $3.00 to $5.00 for going to some neighbour- 
 ing township to attend the trial of a case in a Jus- 
 tice's court, with an occasional larger fee, not more 
 than $20.00 generally, the taxable costs in a litigation 
 in one of the higher courts. His aggregate fees, ac- 
 cording to his account, amounted during his first 
 year — from January 14, 1826, to January 18, 1827 — 
 to $217.00, which had to be supplemented by a loan 
 of $63.00 from his father to enable him to live. In 
 his third year of practice he was evidently making 
 good headway, for his receipts in 1829 amounted to 
 
12 LANDMARKS OF A LAWYER'S LIFETIME 
 
 $670.00, within which he prudently kept his living ex- 
 penses, amounting to $443.00, enabling him to save 
 a balance of over $200.00, and he probably regarded 
 himself as in flourishing practice. During his first 
 eight years, and until Ms marriage, he occupied as 
 his sleeping apartment a room adjoining his office, 
 sharing it with some student who enjoyed the facil- 
 ities of his office and assisted him in his practice. 
 Among these were William W. Campbell, who subse- 
 quently removed to New York City, where he be- 
 came a judge of the Superior Court of the City of 
 New York, in association with those eminent men. 
 Judges Duer and Bosworth, and later on, removing 
 to Cherry Valley, near Cooperstown, New York, he 
 was elected a Justice of the Supreme Court. An- 
 other of his students, subsequently of great distinc- 
 tion, was that eminent lawyer and judge, Thomas M. 
 Cooley, author of ' * Cooley on Constitutional Limita- 
 tions" and "Cooley on Torts," head of the law 
 school in connection with the University of Michi- 
 gan at Ann Arbor, Chief Justice of the Supreme 
 Court of Michigan and chief of the Interstate Com- 
 merce Commission. Judge Cooley, shortly before 
 his death, sent me, at my request, his engraved por- 
 trait accompanied with the following letter : 
 
 "Ann Arbor, December 4, 1896. 
 Theron G. Strong, Esq., New York. 
 Dear Sir: — 
 
 I have pleasure in placing an engraved likeness of my- 
 self in the hands of a son of Theron R. Strong whom, when 
 I was with him, I regarded as a model of a lawyer and 
 
SOME OLD-TIME LAWYERS 13 
 
 gentleman. The engraving was from a photograph taken 
 four or five years ago and is regarded as a very excellent 
 likeness. 
 
 Very respy yours, 
 
 T. M. COOLET." 
 
 Twenty-one years' faithful and conscientious dis- 
 charge of duty and manifestation of keen moral 
 sense, for which he was noted, although not at the 
 time a religious man, resulted in his nomination for 
 the Supreme Court bench at the reorganisation of 
 the judiciary on the adoption of the Constitution of 
 1846, but he was not successful in the ensuing elec- 
 tion. Again in 1849 he received a second nomina- 
 tion with the same result. In 1851 the third nom- 
 ination was conferred upon him, his opponent being 
 Samuel Blatchford of Auburn, a nephew of William 
 H. Seward, who subsequently became United States 
 District Judge for the Southern District of New 
 York, and later still United States Circuit Judge, 
 and finally was appointed and served for a number 
 of years as Justice of the Supreme Court of the 
 United States. The election was close, my father's 
 majority being only 993 votes. 
 
 As I was a very young child at the time I have no 
 recollection of him as a lawyer, but I recall his quiet 
 announcement to my mother of the fact of his elec- 
 tion. I remember more distinctly that in his leisure 
 hours he was quite a sportsman. The streams in 
 his locality abounded with trout, and he would re- 
 turn from an afternoon's fishing with a well-filled 
 basket. Squirrels and partridges were plentiful in 
 
14 LANDMARKS OF A LAWYER'S LIFETIME 
 
 the woods, and with his little rifle of small bore he 
 would pierce the heads of black and gray squirrels, 
 or if he carried his double barrelled shotgun, then 
 a recent development in firearms, he would be sure 
 to bring home a full game-bag. This fondness for 
 the woods and waters and the pleasures of the rod 
 and gTin has characterised most of the Strongs, and 
 its descent to me has been a most delightful and 
 healthful inheritance. 
 
 For many years, a small, neat office building 
 erected by him stood on his grounds, furnishing a 
 very excellent and convenient playhouse for his 
 children during his absences holding court. Here 
 he would at times hold court for the trial of equity 
 cases and the hearing of motions, and my memory 
 goes back to one summer afternoon when, being 
 promised some excursion at the conclusion of the 
 trial, I established myself in one of his chairs so as 
 to be on hand when the time arrived. I remember 
 listening to the droning of the lawyers and the re- 
 citals of the witnesses, in almost hopeless despair 
 lest the case would never end, until finally the warm 
 summer afternoon and the general drowsiness of 
 the place resulted in my falling asleep, from which 
 I was awakened with glad surprise by the moving of 
 the chairs and shuffling of the lawyers in taking their 
 departure. Both of us were happy to be free, and 
 probably we started on a trip to the farm he owned 
 not far away. 
 
 Once I remember being taken by him to attend 
 the Circuit Court for Cayuga County, which was held 
 at Auburn. It is almost the only recollection I have 
 
SOME OLD-TIME LAWYERS 15 
 
 of him on the bench during trials of criminal cases. 
 I recall distinctly the trial of an indictment which 
 involved a grievous wrong done to a little girl. 
 When she took her place on the witness stand and 
 the District Attorney began to interrogate her she 
 burst into tears. I felt very sorry for her, but I 
 saw my father lean over and speak to her, and he 
 evidently asked her to come to him, as she immedi- 
 ately left the witness ' seat and took her place along- 
 side him on the bench. He gently put his arm 
 around her and asked her to tell him all about it, 
 which she did in her childish way, while with the 
 other hand he made notes of her testimony as she 
 proceeded. At the conclusion of her story, but 
 without changing their respective positions, he in- 
 quired in a tone of quiet dignity whether the pris- 
 oner's counsel had any questions that he desired to 
 ask on cross-examination, and his manner and the 
 whole surroundings of the incident were such that 
 I doubt whether anyone would have been willing to 
 undertake the task of cross-examining this innocent 
 child standing under the fatherly protection of the 
 Court. It was on the last day of the term that I saw 
 him sentence some prisoners, one of whom, I remem- 
 ber, was an old man who had been convicted of the 
 crime of arson, and the other, the prisoner in the 
 case of the little girl. 
 
 I was told by Mr. F. C. Reed, a most reputable 
 lawyer of this city, formerly a resident of Clyde, of 
 a trial at which my father presided at Lyons, the 
 county seat of Wayne County. Mr. Eeed stated 
 that at the time of the trial he was a student, not 
 
16 LANDMARKS OF A LAWYER'S LIFETIME 
 
 having been admitted to practice. The trial which 
 was of an indictment for rape had excited uncom- 
 mon interest in the community, and led large num- 
 bers from the immediate locality, and others from a 
 long distance to attend the trial, whose ears would 
 be tickled by the recital of the facts necessarily in- 
 volved, and there was a general expectation of racy 
 details to furnish ample amusement, so that the case 
 was generally regarded as an opportunity to have a 
 graud good laugh and as a kind of theatrical per- 
 formance. The court was crowded to its utmost 
 capacity, distinguished counsel were to participate, 
 and everyone was on the tiptoe of expectation. Mr. 
 Eeed said that at the opening of the court, my father 
 ascended the bench with a very serious and dignified 
 demeanour, so much so that a hush fell upon the as- 
 sembly, and from that time on, said Mr. Reed, it 
 was the most remarkable exhibition he ever saw of 
 the influence of personal character and personal dig- 
 nity. There were undoubtedly racy incidents, which 
 might easily have caused laughter; there were amus- 
 ing situations, which might well have provoked mer- 
 riment, but, from the beginning of the trial until 
 the judge's charge there was not a single manifesta- 
 tion of laughter or merriment, and the case was con- 
 ducted on such a high moral plane that there was no 
 disposition to make light of the matter; on the con- 
 trary, the spectators seemed to become impressed 
 with the seriousness of the case and of the conse- 
 quences involved. At the conclusion of the trial, 
 said he, the judge's charge covered all the details of 
 the case, some of them most amusing, but with an 
 
SOME OLD-TIME LAWYERS 17 
 
 impressive dignity calculated to convey to a country 
 jury the full weight of their responsibility, with a 
 lucidity of statement that would prevent all possi- 
 bility of misunderstanding or misapprehension of 
 the facts and the issues involved. 
 
 My father must, I think, have had a very decided 
 objection to capital punishment. I never heard him 
 state his objection to it, but his course on the bench 
 was such that I think he must have regarded it un- 
 necessary except in extreme oases. During his ser- 
 vice it became his duty to preside at a number of 
 murder trials, some of them of considerable public 
 interest and, so far as the conduct of the trial and 
 the sentence to be imposed were concerned, I do not 
 think that any feeling which he had against capital 
 punishment influenced him in the slightest degree 
 and, where the verdict required, he of course pro- 
 nounced, as obliged by law, sentence of death. 
 These sentences were, however, rarely executed, for 
 he was not satisfied to let the cases proceed to that 
 extent without careful examination of aU the ex- 
 tenuating facts and circumstances which should, as 
 a matter of justice, be taken into account, although 
 they might not be sufficient in the eye of the law to 
 mitigate the crime. This led him to confer with the 
 District Attorney and the other public authorities, 
 and if he found that the facts and circumstances jus- 
 tified an application to the governor for clemency, 
 he would secure the co-operation of the District At- 
 torney and personally present the application. The 
 result of his applications invariably was a commu- 
 tation of the sentence to imprisonment for life. 
 
18 LANDMARKS OF A LAWYER'S LIFETIME 
 
 I have alluded to the high moral sense which in- 
 fluenced his conduct, but this was not the outgrowth 
 of religious sentiment, as that did not develope until 
 after he ascended the bench, when he was led to con- 
 sider the subject of his personal relation to God. 
 While in this state of mind he was called upon to 
 preside in one of the murder trials to which I have 
 referred. The issue, involving life or death, his re- 
 sponsibility to see that justice was administered, and 
 his reflections upon his own attitude to God as the 
 Judge of mankind, created such an impression upon 
 him that he could not but compare his own helpless- 
 ness before the Bar of Divine Justice with that of 
 the prisoner at the bar. This thought was to him 
 of such significance that when the time arrived for 
 him to begin his charge to the jury, he would have 
 given, as he subsequently related it, "all that he pos- 
 sessed to have had the favour of God for a single 
 hour." This experience led him to a more earnest 
 consideration of his religious duty, and although I 
 was then not more than seven years of age I remem- 
 ber the impressive scene when in the village church, 
 he who was the important figure in that community, 
 took his place with a few other villagers to make a 
 public confession of his faith, which he maintained 
 steadfastly and loyally until his death. 
 
 It is not my purpose here to enter upon a detailed 
 account of his public service or of his practice as a 
 lawyer or of his career as a judge. "While he did his 
 duty in every department of life faithfully, which 
 secured for him universal respect and esteem, these 
 matters I cannot regard as of sufficient general in- 
 
SOME OLD-TIME LAWYERS 19 
 
 terest or importance to enter upon. His opinions 
 in Volumes II to XXXI of Barbour's Supreme Court 
 Eeports and in Volumes XVI, XVII and XVIII of 
 the Court of Appeals Eeports will speak for them- 
 selves. I may add, however, that the importance of 
 his opinions in the Court of Appeals is testified to 
 by the fact that more of his opinions were reported 
 than of those of any other of the eight judges who 
 sat upon the bench at that time, excepting one ; and 
 when we consider that among his associates were 
 Alexander S. Johnson, George F. Comstock, Samuel 
 L. Selden, Hiram Denio and Ira Harris, it will be 
 readily imderstood what this fact signifies. One of 
 his opinions has been regarded as a landmark in 
 the law ever since it was delivered, that in "Can- 
 cemi against The People," (18 N. Y., 128) ; where it 
 was decided that notwithstanding the consent of a 
 prisoner on trial for murder to be tried by a jury of 
 eleven, resulting in his conviction by the eleven 
 jurors, the trial was a nullity and the conviction was 
 illegal. His opinion was reasoned almost entirely 
 on principle, there being an entire absence of au- 
 thority as a guide, excepting two brief reports of 
 cases of noblemen in the reigns of Henry Vlli. and 
 Charles I., who waived their trial before their peers 
 and were tried by the country, that is, the common 
 jury, and these two authorities, based upon a pro- 
 vision of Magna Charta, held that the trials were il- 
 legal. Mr. Justice Harlan of the Supreme Court of 
 the United States in one of his opinions referred to 
 the case as follows : "Its doctrines have been widely 
 accepted as based upon a sound interpretation of 
 
20 LANDMARKS OP A LAWYER'S LIFETIME 
 
 constitutional provisions relating to criminal prose- 
 cutions." 
 
 Upon Ms retirement from the benoli, he resumed 
 practice in Rochester, New York, where for the next 
 seven years he was largely employed as counsel by 
 other lawyers, and as referee, until he removed to 
 the city of New York to begia practice in the larger 
 field. I allude to this because it seems to me to have 
 been remarkable that at the age of sixty-five years 
 he should possess the vigour and energy to enable 
 him to cut loose from life-long associations, and be- 
 gin work over again in a field well-supplied with the 
 highest order of legal talent; but this he did with 
 such success that his services in arguments before 
 the courts and as referee to hear and determine 
 cases were in constant demand, making the last five 
 and one-half years of his life the most successful 
 and remunerative of his whole career. He was so 
 exceedingly painstaking and conscientious in the 
 consideration and investigation of cases, that I 
 know of but a single case in which a decision of his 
 was reversed. But they were sometimes subjected 
 to serious vicissitudes, the case of "Knowlton 
 against the Congress & Empire Spring Co." (57 
 N. Y., 518, and 103 U. S., 49) being an interest- 
 ing instance. This case involved the question 
 whether a party to a contract prohibited by law but 
 not malum in se, might, while performance of the 
 contract remains incomplete, rescind and recover 
 moneys advanced to the other party, who had done 
 nothing by way of performance. He decided that 
 such recovery could be had notwithstanding the fact 
 
SOME OLD-TIME LAWYERS 21 
 
 that tlie contract under which the money was paid 
 was illegal. An appeal from his decision resulted 
 in an affirmance by the G-eneral Term of the Supreme 
 Court of the State of New York, but upon further ap- 
 peal the Commission of Appeals reversed his de- 
 cision, that learned jurist Theodore W. Dwight dis- 
 senting from his associates and in favour of sustain- 
 ing it. Subsequently, however, the case was brought 
 on appeal to the Supreme Court of the United States 
 and there the decision made by my father was sus- 
 tained. 
 
 He had been but a year in New York when I be- 
 gan the study of law in his office. As this was before 
 the days of general employment of stenographers, 
 I had the privilege of acting as his amanuensis in 
 the taking of testimony in cases tried before him as 
 referee by distinguished counsel, and of witnessing 
 his admirable demeanour, fairness and learning as a 
 judge. 
 
 At the close of the sixty-fifth volume of Barbour's 
 Supreme Court Eeports may be found a record of 
 the proceedings of the bar in Rochester, New York, 
 in which tributes were paid to his memory. They 
 are the estimates of his eminent associates, the 
 most eminent of whom was Judge Henry R. Sel- 
 den. The conclusion of Judge Selden's tribute is: 
 "He was elected by the people of the Seventh Ju- 
 dicial District to the bench of the Supreme Court 
 and in the performance of the duties of that posi- 
 tion he proved a worthy compeer of the able and ex- 
 cellent men with whom he was associated. In his ex- 
 tensive and accurate knowledge of the common law, 
 
22 LANDMARKS OP A LAWYER'S LIFETIME 
 
 and in nice discrimination of its principles, lie had 
 few equals, and in independence and integrity in the 
 performance of duty he had no superiors." 
 
 It is a matter of regret to me that I am not able to 
 give any personal recollections of Mr. Justice Wil- 
 liam Strong, a grandson of Adonijah until after he 
 had ascended the bench of the Supreme Court of the 
 United States. A short time before his appoint- 
 ment as Justice of the Supreme Court, I remember 
 his retaining my father in a case of considerable im- 
 portance which was afterward brought before the 
 Supreme Court of the United States, but in the de- 
 cision of which he did not participate. Justice 
 Strong was then about sixty years of age, tall and of 
 unusually fine appearance, with head of silvery hair 
 and exceedingly courteous and winning demeanour. 
 His countenance was expressive of great dignity and 
 benevolence, and he was very modest, unassum- 
 ing and gracious. He was a deeply religious man, 
 and perhaps somewhat excessive in the strictness 
 with which he regarded his religious duties, and the 
 careful observance of the Lord's Day. He was in- 
 deed a pillar in the church, and for many years was 
 president of the American Tract Society. His early 
 life was spent in Eeading, Pennsylvania, and his 
 clients were among the Pennsylvania Dutch which 
 necessitated his acquiring their native language and 
 conforming to their habit of using tobacco. The 
 prevalence of the use of tobacco among litigants, 
 filled with clouds of tobacco smoke not only the offices 
 but the court rooms, compelling him as a matter of 
 self-defense to form the habit of using it. 
 
SOME OLD-TIME LAWYERS 23 
 
 Althougk I cannot vouch for it, I have no reason 
 to doubt the accuracy of a statement concerning him 
 in a biographical sketch contained in the "Dictionary 
 of National Biography" that upon the death of Chief 
 Justice Taney, President Lincoln selected Judge 
 Strong for appointment to the position of Chief Jus- 
 tice, but events so shaped themselves that President 
 Lincoln was finally constrained, probably for politi- 
 cal reasons chiefly, to nominate Salmon P. Chase. 
 
 From what I have heard, I think President Grant 
 must have fallen in love with him on the occasion 
 of the presentation to President Grant of a copy of 
 the Bible, when Judge Strong made the presentation 
 address, for it was not long after, two vacancies hav- 
 ing occurred in the United States Supreme Court, 
 that President Grant appointed William Strong and 
 Joseph P. Bradley to fill these vacancies. In his 
 letter of acknowledgment to President Grant he 
 said: "A seat on the Supreme Bench would satisfy 
 all my ambition, except to discharge its duties well. ' ' 
 At the time of these appointments the legal tender 
 cases were before the court, exciting widespread in- 
 terest, opinion being divided, largely upon party 
 lines, as to the constitutionality of the acts, and 
 President Grant's appointments were criticised as 
 having been made for the purpose of sustaining their 
 constitutionality. However, it soon became appar- 
 ent that these criticisms were groundless. 
 
 The first of the legal tender cases — Hepburn vs. 
 Griswold, (8 Wall, 603) — came before the court at 
 the December term, 1869, but the decision was not 
 announced until February 1, 1870. At the time the 
 
24 LANDMARKS OF A LAWYER'S LIFETIME 
 
 case was heard there was one vacancy, and one of the 
 justices having resigned in the interval between the 
 hearing of the case and the announcement of the de- 
 cision, there were but seven justices on the bench. 
 Three justices dissented from the decision as an- 
 nounced, resulting in a decision by a minority of the 
 entire court, had the bench been completely filled. 
 It was, of course, very unsatisfactory that a decision 
 in a case of such importance should be rendered by 
 a minority of the entire court. Long before the de- 
 cision was announced the appointment of Justices 
 Strong and Bradley to fill the two vacancies had 
 been under consideration and, in fact, their nomina- 
 tions were sent to the Senate several hours before 
 the decision was announced. Of course, no one knew 
 what the decision was to be, and if Chief Justice 
 Chase, who had a large share in framing the legal 
 tender legislation had supported it, as was naturally 
 expected, there would have been a majority in favor 
 of its constitutionality. It is preposterous in view 
 of the characters of Justices Strong and Bradley as 
 revealed in the years they occupied seats on the 
 bench, where they earned the highest encomiums, to 
 suppose that they could have been induced to promise 
 their support to the constitutionality of the legisla- 
 tion by the prospect of an appointment to the Su- 
 preme Court without having carefully heard and 
 considered as judges a discussion of the questions in- 
 volved. Therefore, when the case of Knox v. Lee 
 (12 Wall, 457) came before the Supreme Court, in- 
 volving practically the same subject as Hepburn v. 
 Griswold, the questions were reconsidered and the 
 
SOME OLD-TIME LAWYERS 25 
 
 constitutionality of the legal tender acts sustained. 
 The opinion of the court was delivered by Mr. Jus- 
 tice Strong, and it not only did much to strengthen 
 and uphold the powers of the government and give 
 stability to its monetary system, but the soundness 
 and correctness of the principles of constitutional 
 construction which it contained have been vindicated 
 by the judgment of posterity. 
 
 It so happened that on several occasions my at- 
 tendance on the Supreme Court brought me into 
 closer acquaintance with Justice Strong, and I was 
 honoured with his intimate friendship during the re- 
 mainder of his life. Among his confidences is one 
 of considerable public interest, growing out of the 
 Electoral Commission formed to pass judgment upon 
 the rival claims of Rutherford B. Hayes and Samuel 
 J. Tilden to the presidency. Both Justices Strong 
 and Bradley, as well as Justices Clifford, Field and 
 Miller, were selected as members of that Commis- 
 sion, and its proceedings were at times heated and 
 rancorous, especially in the private deliberations. 
 Mr. Justice Bradley was subjected to most unjust 
 criticism by reason, it was asserted, of a change in 
 his previously announced opinion in these delibera- 
 tions. In his opinion, as finally given, he used the 
 expression in considering the question of the right 
 of the Commission to go behind the returns, "aliunde 
 the Eecord," and his first name being Joseph this 
 earned for him the unworthy sobriquet "Aliunde 
 Joe," by which he was referred to often in the 
 columns of the hostile press. But there was no 
 foundation whatever for criticising him as having 
 
26 LANDMARKS OP A LAWYER'S LIFETIME 
 
 changed his opinion, as Mr, Justice Strong related 
 the circumstances to me. Justice Bradley, he said, 
 called upon him before his opinion was expressed to 
 the Commission and stated that he had prepared his 
 opinion and would like to read it to Mm and get his 
 views. Assent to this was given and the opinion 
 read. With the exception of a few verbal changes 
 suggested by Mr. Justice Strong, the latter assured 
 me most emphatically that Mr. Justice Bradley's 
 opinion remained unchanged. 
 
 But there was another incident in connection with 
 the Commission which occasioned a personal 
 estrangement for a long time between Mr. Justice 
 Strong and Mr. Justice Field. Referring to this the 
 former stated that when the opinions of Mr. Justice 
 Bradley and himself were delivered at a private ses- 
 sion of the Commission, Justice Field lost control of 
 himself and, with most violent and abusive expres- 
 sions, arraigned these two justices with unfriendly, 
 severe and unjust criticism. Up to that time Justice 
 Strong's relations with Mr. Justice Field and all the 
 other justices had been of a peculiarly intimate char- 
 acter, and his own gentle and pacifying nature made 
 such an attack almost, if not quite, impossible. He 
 offered no retaliation at the time, but he felt that his 
 own sense of self-respect would put further personal 
 intercourse between Justice Field and himself out 
 of the question, until a suitable apology was offered. 
 The sessions of the Electoral Commission soon after 
 came to a conclusion with the announcement of the 
 decision in favour of Mr. Hayes and the justices re- 
 sumed their places in the Supreme Court. Justice 
 
SOME OLD-TIME LAWYERS 27 
 
 Field had evidently repented his violent outburst, but 
 was not prepared to offer an apology. No reference 
 was made to the matter by anyone, but Mr. Justice 
 Strong pursued the course of practically ignoring 
 Mr. Justice Field's existence, and although they met 
 upon the bench and in consultation with the other 
 members of the court, there was no resumption of 
 personal intercourse, though Mr. Justice Field used 
 all arts and expediments short of an apology. "He 
 would," said Justice Strong, "when in consultation 
 address his observations directly to me, and inquire 
 as to my views wherever possible, and would mani- 
 fest great deference to my judgment in the cases 
 under discussion. ' ' The kindly and gracious charac- 
 ter of Justice Strong, as I think of it, makes me 
 wonder that it should have been possible for him to 
 assume this attitude toward any human being, but 
 I have no doubt that, while anxious to forgive and 
 forget, he felt that he owed it to his self-respect as a 
 man to pursue this course. To the honour of Mr. 
 Justice Field, be it said, that after a long interval 
 he called one evening at the residence of Mr. Justice 
 Strong and there in appropriate terms conveyed an 
 apology which was accepted before it was completed, 
 and their former relations were resumed and there- 
 after continued uninterruptedly. 
 
 I happened to be hanging by a strap in one of the 
 cars of the elevated road one afternoon on my way 
 uptown when who should enter the car but Mr. Chief 
 Justice Waite. I do not know that any one recog- 
 nised him beside myself, and he was not offered a 
 seat. We fell into conversation, and I naturally in- 
 
28 LANDMARKS OF A LAWYER'S LIFETIME 
 
 quired after my relative on the bench and, turning 
 toward me, he added to his response to my question : 
 "They don't make any better men than William 
 Strong." 
 
 Mr. Justice Strong gave me the following story of 
 his retirement when he had served something more 
 than ten years on the Supreme Court bench. Hav- 
 ing reached the age of seventy-three years, and al- 
 though remarkably well preserved physically and 
 mentally and quite as capable of efficient service as 
 any of the other justices, he became convinced that 
 it would be for the interest of the court if one or two 
 of the justices who had become enfeebled by age 
 were to retire and their places be filled by more vig- 
 orous men. He enjoyed the position and its duties, 
 and would not have retired at that time if the retire- 
 ment of other justices could have been effected with- 
 out his setting an example. This conviction led him 
 to say to Mr. Justice Swayne, who had been on the 
 bench a long time and was quite enfeebled, that he 
 had had in mind the strengthening of the bench by 
 resigning, and as they had both reached the period 
 of life when they could retire with the continuance 
 of their salaries during life, he would offer his resig- 
 nation if Mr. Justice Swayne would follow him in 
 so doing. Justice Swayne assented to this and 
 shortly afterward Mr. Justice Strong resigned, fol- 
 lowed after a brief interval by Mr. Justice Swayne, 
 and their places were filled by Mr. Justice Shiras 
 of Pennsylvania and Mr. Justice Matthews of 
 Ohio. 
 
 I have no doubt that the early experiences of 
 
SOME OLD-TIME LAWYERS 29 
 
 Judge William Strong of the United States Court of 
 Oregon and Washington Territories, a cousin of Mr. 
 Justice Strong and of my father, would fill a volume 
 of interesting reminiscences, but, as I never met him 
 or corresponded with him, I am unable to say more 
 than that in point of honourable career, high moral 
 sense, love of justice and a faithful discharge of 
 duty, he was the equal of any of the Strongs. In 
 1849, at the early age of 32, while engaged in a large 
 and lucrative practice in Cleveland, Ohio, he was 
 appointed by President Taylor, Associate Justice 
 of the Supreme Court of Oregon Territory. He 
 was a pioneer in that new and undeveloped region, 
 and shared the fortunes of its early settlers, resid- 
 ing at Cathlamet, on the north side of the Columbia 
 river, untU 1862, when he removed to Portland, 
 Oregon. His position was a difiScult and stormy 
 one, so caused by the rugged character of the coun- 
 try, and the strong prejudices and individualism of 
 the pioneer community. He had a large part in 
 shaping the jurisprudence of that portion of the 
 coimtry, and brought to it rare ability and intel- 
 ligence — so much so, that in a biographical sketch 
 it is said: "There is no name more thoroughly as- 
 sociated with Oregon and Washington judicature 
 than that of William Strong, and his marked char- 
 acteristics are indelibly impressed upon the system 
 of law of both States." Another writer in com- 
 menting upon the value of his judicial labours said: 
 "He made practice, moulded procedure, and estab- 
 lished precedents for his Bar to follow, and his 
 orders of court, his decrees in chancery, and his 
 
30 LANDMARKS OF A LAWYER'S LIFETIME 
 
 opinions, are models of expression. Thoroughly 
 equipped for every-day practice he was learned in 
 the science of his profession. His memory will 
 linger long amongst the old settlers, because he was 
 a man naturally adapted to influence and mould a 
 new and unorganised community." 
 
 I should not fail to mention William Strong's 
 three brothers, all of them lawyers, — George P. 
 Strong of St. Louis, John C. Strong of Buffalo and 
 James C. Strong of Oakland, California, whose early 
 career in the law was interrupted by his service for 
 the cause of the Union, and who has since laboured 
 under severe disability from wounds honourably in- 
 curred in the defense of his country, and is still liv- 
 ing All of these brothers attained honourable po- 
 sitions in their profession and were generally recog- 
 nised as men of the highest character. 
 
 The Long Island Strongs have also made a valu- 
 able contribution to the judiciary of this State. 
 From Colonial times they have been the owners of 
 St. George's Manor at Setauket. Here Selah 
 Strong married the daughter of the Chief Justice 
 of the Supreme Court of the Colony of New York, 
 and himself became first judge of the Court of Com- 
 mon Pleas. His son, Thomas Strong, adopted the 
 profession of law and became a worthy successor 
 of his father in his judgeship. His son, Selah B. 
 Strong, also became a lawyer and rose to the higher 
 position of Justice of the Supreme Court, which 
 office he filled with distinction, and the successors 
 of these men have occupied honourable positions at 
 the bar for several generations. 
 
SOME OLD-TIME LAWYERS 31 
 
 My mother's father, Wheeler Barnes, was also a 
 lawyer. He graduated at the University of Ver- 
 mont in 1802, and removed from his ancestral home 
 in Burlington to Rome, New York, of which he was 
 one of the early settlers, long identified with its 
 development and occupied a prominent position as 
 its leading lawyer. He was an excellent scholar 
 and a man of fine culture. His residence was sit- 
 uated on the site of Fort Stanwix. His office was a 
 separate building in his own grounds. He was not 
 an advocate in the courts, being inclined to office 
 practice as an adviser and counsellor to this growing 
 community. His legal knowledge was sound and 
 accurate, and his office was largely sought by young 
 men desiring education in the law. My mother has 
 related to me occasional instances connected with 
 these young students, among whom was William 
 Curtis Noyes who subsequently became a partner of 
 my grandfather under the firm name of Barnes & 
 Noyes. Soon Eome became too limited for Noyes' 
 capacity and he removed to IJtica, where he became 
 a partner of that brilliant lawyer, Henry R. Storrs. 
 During the time he was in my grandfather's office, 
 he became engaged to his first wife. Miss Tracy, 
 whose family resided near Rome. Later he re- 
 moved to New York where he became one of the 
 most distinguished lawyers of the day. One of his 
 associates, Charles Tracy, for many years a prom- 
 inent member of the bar, was a relative of his wife, 
 and Elbridge T. Gerry, founder of the Society for 
 Prevention of Cruelty to Children, was one of his 
 students and junior partners. In the report of 
 
32 LANDMARKS OP A LAWYER'S LIFETIME 
 
 Beekman vs. Bonsor, (23 N. Y., 298), will be found at 
 page 575 an exhaustive and interesting argument of 
 Mr. Noyes, whicli displays Ms power as a profound 
 lawyer. Another of these students was Hiram Denio 
 who afterwards practiced law in Utica and became 
 Chief Judge of the Court of Appeals and one of the 
 most distinguished judges who ever sat upon this 
 bench. He was very near-sighted and my mother 
 used to relate how she, as a girl, would go out to her 
 father's office to watch Mr. Denio copy legal docu- 
 ments, his nose so close to the paper owing to near- 
 sightedness, that she was in momentary expectation 
 of seeing him rub his nose against the ink. 
 
 Oliver L. Barbour, author of Barbour's "Chan- 
 cery Practice," and reporter of the Supreme Court 
 decisions for nearly thirty years, was another stu- 
 dent and my mother used to describe him as one of 
 the most homely and crabbed individuals she ever 
 saw, with little personal attractiveness to make him 
 a successful lawyer, but whose industry was un- 
 limited, and whose personal qualities of heart and of 
 mind were such as to endear him to all who became 
 associated with him. 
 
 Norman B. Judd of Illinois, who finally attained 
 high distinction as a member of Congress and in our 
 diplomatic corps, being one of President Lincoln's 
 appointees to a foreign court, was another of these 
 young men. The intimate relations which existed 
 between my grandfather and these students of the 
 law brought them into close association with his 
 family and I cannot but feel that their high char- 
 acters and distinguished attainments were the re- 
 
SOME OLD-TIME LAWYERS 33 
 
 suit of my grandfather's lofty conception of Ids 
 duties as a citizen, his wide culture, and his Chris- 
 tian character as the outgrowth of deep religious con- 
 viction and principle. 
 
CHAPTEE II 
 
 THE COURT OF APPEALS 
 
 The reorganisation of the Court of Appeals in 1870 
 marked an important change from the preceding 
 system in the court of last resort. Previous to that 
 time, the court, under the constitution of 1846, had 
 consisted of eight judges, four of whom were elected 
 as judges of the Court of Appeals, the remaining 
 four being justices of the Supreme Court selected 
 from the justices having the shortest time to serve 
 in alternate districts of the eight districts of the 
 State — ^being designated one year from the first, 
 third, fifth and seventh districts, and the next year 
 from the second, fourth, sixth and eighth. There 
 were decided disadvantages in this system; there 
 was a constantly shifting and ever-changing court 
 which lacked permanence and stability, sometimes 
 composed, in part, of justices who were probably un- 
 suited to such an important tribunal. At times, by 
 reason of the death of a Supreme Court justice who 
 was serving or about to serve his year in the Court 
 of Appeals, a perfectly inexperienced and untried 
 member of the bar would be appointed to the Su- 
 preme Court, who, by virtue of his appointment, 
 would immediately assume a place in the Court of 
 Appeals. The equal number of judges was also an 
 objection because, under the provisions of law, in 
 
 34 
 
THE COURT OP APPEALS 36 
 
 case of an equal division of opinion, the judgment 
 would be affirmed by a divided court. In such cases, 
 an appeal to the Court of Appeals, involving large 
 expense to the parties, with a decision by an equally 
 divided court amounted to nothing and left the dis- 
 puted questions unsettled. A further objection was 
 that a Supreme Court justice would sit in the Court 
 of Appeals in review of his own decision in the Su- 
 preme Court, and having pre-judged the case he was 
 quite unprepared to consider it from an entirely, un- 
 prejudiced standpoint. 
 
 The plan of having a permanent court with jus- 
 tices elected for a term of fourteen years, whose 
 duties should be confined to the hearing and deter- 
 mination of appeals from inferior courts, was the 
 result of the combined wisdom and experience of 
 almost all the judges and practitioners. But the 
 working out of the plan and the scheme of legisla- 
 tion involved was probably, more than to any other 
 single individual, due to George F. Comstock of 
 Syracuse, who had recently served as associate 
 justice and chief justice of the Court of Appeals 
 under the old system. At the time the present court 
 was formed it was the general expectation, and 
 probably Judge Comstock expected himself, that he 
 would be nominated as chief judge of the court, and 
 this would probably have occurred if Sanford E. 
 Church had not at the time just recovered from a 
 severe illness, and was practically without an occu- 
 pation, in consequence of which the interest of Sam- 
 uel J. Tilden was enlisted in his behalf, and his in- 
 fluence in the Democratic party was such that Judge 
 
36 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Comstock was set aside and Judge Church nomi- 
 nated. 
 
 Under the provisions of the constitution it was 
 wisely provided that the system of voting for the 
 judges should be such as to insure minority repre- 
 sentation. The result of this prevented the election 
 of more than five nominees of the prevailing party, 
 and insured the election of the two nominees of the 
 unsuccessful party having the largest number of 
 votes, though the election of the chief judge of the 
 court stood by itself. The Democrats nominated 
 Sanford E. Church for chief judge, and as asso- 
 ciate judges Rufus W. Peckham, William F. Allen, 
 Martin Grover, and Charles A. Eapallo. The Re- 
 publicans nominated for chief judge Henry E. Sel- 
 den and for associate judges Charles Mason, Robert 
 S. Hale, Charles J. Folger and Charles Andrews. 
 The result was the election of the five Democratic 
 judges and Messrs. Folger and Andrews. These 
 men at once became a remarkable court, and the 
 change brought about by its formation has proved 
 to be one of the most important advantages of mod- 
 ern times. Its decisions at once inspired confidence 
 and respect because they were marked by painstak- 
 ing care and unquestionable ability. Throughout 
 the country generally the decisions of the Court of 
 Appeals of this State have been largely followed, 
 and the range of subjects which has passed under 
 its consideration, due to its close connection with 
 the most important commercial and financial centres 
 of our country, left few questions of any moment 
 which have not been submitted to its consideration. 
 
THE COUET OF APPEALS 37 
 
 One of its distinguishing features, noticeable by 
 every practitioner who has appeared before it, is 
 its patient listening to the arguments of counsel, 
 however ineffective they may be, without unneces- 
 sary interruption, or by conversing with each other 
 on the bench, or by turning a deaf ear to the argu- 
 ment and burrowing in the record. Every lawyer 
 who appears there feels satisfied, I believe, that he 
 has secured a patient and intelligent hearing. I 
 ha,ve wondered sometimes when sitting in the court, 
 waiting for my case to be called, at the patient atten- 
 tion the court would give to some inconclusive and 
 unhelpful argument, and I may add that I have also 
 wondered sometimes at the patience with which they 
 listened to my own. 
 
 The court in its earlier days seemed like one large 
 family. There was but one hotel in Albany, except 
 at a distance from the Capitol, which furnished sat- 
 isfactory accommodation — this was Congress Hall — 
 situated on a part of the ground where the new 
 capitol now stands. Here all the judges lived, ex- 
 cept Judge Peckham, and perhaps Judge Allen. 
 They all sat at the same table and they mingled 
 freely among the members of the bar who were in 
 attendance on the court. The clerk of the court was 
 E. 0. Perrin, whose flowing beard and rather im- 
 pressive bearing was such that he was frequently 
 mistaken for one of the judges. I was at times 
 doubtful in my own mind whether he regarded him- 
 self as serving the court, or the court as serving 
 him, although it is due to him to say that he was 
 considerate and accommodating in his relations to 
 
38 LANDMARKS OF A LAWYER'S LIFETIME 
 
 the bar. I rememlDer one occasion when he actually 
 got np a dance which was honoured by the attend- 
 ance of some of the judges, though probably it was 
 planned for the entertainment of their wives and 
 daughters. I was privileged to be a spectator, and 
 it seemed to me that the suppression of youthful 
 vivacity by judicial dignity made the occasion some- 
 what formal, and what was intended to be entertain- 
 ing and exhilarating proved to be gloomy and op- 
 pressive. 
 
 The court at the time of which I speak held its 
 sessions in one of the legislative halls of the old 
 capitol. The furnishings and surroundings were of 
 severe republican simplicity and in strange contrast 
 to such highly ornate court rooms as that of the 
 Appellate Division in the City of New York. The 
 construction of the new capitol, and the destruction 
 of the old, transferred the Court of Appeals to its 
 present rooms in the new capitol, which, however, 
 are not worthy of our Court of Appeals, and we 
 have reason to hope that in the near future this 
 honourable court will be provided with surroundings 
 ample for its purposes and suited to its dignity. 
 
 In its earlier years the court assembled at ten 
 o'clock in the forenoon and held a continuous session 
 of four hours until two o'clock. This made it neces- 
 sary for lawyers to reach Albany the preceding 
 evening, or to take a night train, and scant time was 
 left after the adjournment of the court to take a re- 
 tiTrning afternoon train. Subsequently the hour of 
 convening was changed to two o'clock in the after- 
 noon, with a continuous session until six o'clock. 
 
THE COURT OF APPEALS 39 
 
 This permits the taking of a morning train from 
 New York to Albany and returning by an evening 
 train. The convenience of this arrangement applies 
 as well to other parts of the State. 
 
 The adoption of gowns in February, 1884, a re- 
 action from the simplicity of our forefathers, was a 
 step in the right direction, and gave to the judges 
 a distinguishing mark, so far as dress is concerned, 
 which was very much needed. There is no question 
 that it added tone and dignity to the court. It was 
 no untried experiment, for the example of the Su- 
 preme Court of the United States from earliest 
 times had proved that it was a valuable adjunct to 
 the judicial ofiBce, notwithstanding that the justices 
 of the Supreme Court in early days did not robe 
 themselves in private, but at the opening of the court 
 took their gowns from the pegs on which they hung, 
 and donned them with all the dignity possible. The 
 scene, at the present day, when the Supreme Court 
 of the United States or the Court of Appeals of New 
 York assembles upon the bench and the crier an- 
 nounces the opening of court, is one which the gowns 
 render most impressive. The example of the Court 
 of Appeals in this respect has been almost uni- 
 versally followed and the Federal courts and all of 
 the State courts, down to the most inferior, have 
 their judges gowned. An irreverent wit remarked 
 soon after the assumption of the gowns that the 
 difference between the judges and the bar was, that 
 the judges wore their shirts outside their trousers 
 while the bar wore their shirts tucked inside. 
 
 My own attendances on the Court of Appeals be- 
 
40 LANDMARKS OP A LAWYER'S LIFETIME 
 
 gan soon after the death of my father in 1873, and 
 have continued with frequency ever since, and I 
 think I may say that it has given me good acquaint- 
 ance with every judge of that court, and with some 
 this acquaintance has been quite familiar. In the 
 early days when I used to meet them frequently at 
 Congress Hall, an excellent opportunity was af- 
 forded for agreeable intercourse, but with the dis- 
 appearance of Congress Hall, although there were 
 frequent meetings at the Kenmore, where the judges 
 subsequently stayed, the disposition to break up this 
 association between the judges and the members of 
 the bar began to be more marked. With the passing 
 of Congress Hall and the Kenmore, and the advent of 
 the Ten Eyck, all of these agreeable associations 
 have been lost and the judges are rarely seen, except 
 in the court room, the close association and intimacy 
 of earlier days having been broken up by the fre- 
 quency with which the judges have established 
 private homes of their own. 
 
 A marked and decided change has also taken 
 place in the conduct of the business of the court, 
 not, however, so far as the administration of the 
 court itself is concerned, but in the character of 
 counsel who appear before it. The day has passed 
 when the distinguished lawyer personally argued 
 his own cases; when famous counsel like Nicholas 
 Hill, John H. Eeynolds, Amasa J. Parker, John K. 
 Porter and Samuel Hand argued cases for other law- 
 yers from all parts of the State. An examination 
 of the names of counsel appearing in connection 
 with the cases reported in the New York reports will 
 
THE COURT OP APPEALS 41 
 
 show how rare it is that the names of distinguished 
 lawyers are to be found representing one party or 
 the other. The increase of facilities for reaching 
 Albany from distant poiuts, the comfort with which 
 the journey may be made in a few hours and the 
 natural desire of the younger lawyers to appear be- 
 fore the court to argue their own cases, has prac- 
 tically destroyed the counsel business, formerly an 
 important feature of the Albany practitioner. It 
 is also becoming more and more evident that lawyers 
 of distinction find their time more remuneratively 
 employed in their own offices, and they are gradually 
 yielding this important business to their junior part- 
 ners and subordinates. This has become so notice- 
 able that one of the judges of the court recently 
 remarked: "The most prominent lawyers rarely 
 argue their own cases, but send up some one who 
 is able to say a few words and hand in a brief." 
 Nevertheless the court does its full duty just the 
 same, and it becomes a question of importance as to 
 how far the lawyers are discharging their duty to 
 the court. 
 
 The constantly increasing volume of business be- 
 fore the Court of Appeals resulted in such an accu- 
 mulation, and consequent delay, that it became neces- 
 sary to devise some means by which it could be 
 disposed of. This led first to the formation of what 
 was known as the Commission of Appeals, com- 
 posed of the judges of the old Court of Appeals, — 
 Ward Hunt who afterward became an associate 
 Justice of the Supreme Court of the United States, 
 John A. Lott, Robert Earl who was subsequently 
 
42 LANDMARKS OF A LAWYER'S LIFETIME 
 
 elected to the Court of Appeals, William H. Leon- 
 ard, and Hiram Gray. Three of these retired, and 
 Alexander S. Johnson, John H. Eeynolds and Theo- 
 dore W. Dwight were appointed. This Commission 
 continued its work for about five years, and sat con- 
 currently, but not at the same time, with the Court 
 of Appeals. 
 
 After the abolition of the Commission of Appeals 
 the business again accumulated so rapidly that in 
 about the year 1899 a Second Division of the Court 
 of Appeals was organised under an act of the Legis- 
 lature. This was composed of seven justices of the 
 Supreme Court — David L. FoUett, Chief Judge, and 
 George B. Bradley, Joseph Potter, Irving G. Vann, 
 Albert Haight, Alton B. Parker and Charles F. 
 Brown associate judges. Of these Alton B. Parker 
 subsequently became Chief Judge of the Court of 
 Appeals and served with pronounced ability and 
 admirable fairness in that position until nominated 
 for the presidency of the United States, and Judges 
 Irving G. Vann and Albert Haight became by elec- 
 tion associate judges. The Second Division proved 
 not altogether satisfactory; it involved a divided 
 Court of Appeals which lacked coherence in its com- 
 position and uniformity in its decisions. Upon the 
 expiration of the period for which it was constituted, 
 it was dissolved. Since that time, a different rem- 
 edy for the disposition of the business of the court 
 has been adopted, by assigimaent, under legislative 
 sanction, of four justices of the Supreme Court to 
 act as associate judges of the Court of Appeals. 
 This permits continuous sessions with seven sitting 
 
THE COUET OF APPEALS 43 
 
 judges, the judges rotating in their service, those 
 not sitting devoting themselves to the consideration 
 of their cases and the writing of opinions. The 
 dispatch of business was in this way greatly facili- 
 tated, and its accumulations largely removed. The 
 present arrangement is one which is consistent with 
 cohesion in the court and uniformity in its decisions, 
 and the selection of able justices of long experience 
 in jury and equity trials in the Supreme Court adds 
 considerably to the practical efficiency of the court 
 as an appellate tribunal. 
 
 I suppose there never has been a better presiding 
 ofiicer in any court than Chief Judge Sanford E. 
 Church. He had wide experience as a public man; 
 and, as Lieutenant Governor, presided over the 
 State Senate ; his services were in large demand at 
 political conventions, and he possessed an imusually 
 gracious, considerate and kindly manner which en- 
 deared him to every practitioner in the court. I do 
 not think that Chief Judge Church, before he went 
 upon the bench, was regarded as an eminent lawyer. 
 He was more of a politician in its best sense than a 
 lawyer; public life attracted him, although he had 
 been a successful practitioner in partnership with 
 Judge Noah Davis in Albion. 
 
 Judge Davis once mentioned to me that during 
 their partnership Judge Church served for a long 
 time with great ability and discretion as district 
 attorney of Orleans County. His conception of his 
 duty to persons accused of crime was very high. 
 He approached every case, not in the spirit of an 
 advocate, but as an impartial representative of the 
 
44 LANDMARKS OF A LAWYER'S LIFETIME 
 
 people, involving not only the duty to see that the 
 crime, where it was proved to have been committed, 
 was punished, but that the individual charged with 
 the crime should find in him a perfectly unpreju- 
 diced public official. He, therefore, entered upon 
 each investigation in a spirit of love of the truth, 
 and in cases where the facts left the slightest doubt 
 in his own mind as to the guilt of the accused, he 
 would make this doubt known to the jury, in order 
 that the prisoner might have the benefit of every 
 possible circumstance in his favour. His attitude 
 was that of one not striving to secure convictions 
 and make a record for himself of successful prosecu- 
 tions, but rather that of a mediator. The result was 
 that in cases where he felt that a conviction should 
 be had he almost never failed to secure it, and his 
 spirit of fairness and of impartiality inspired un- 
 bounded confidence that the ends of justice had been 
 served in each case. 
 
 Later he began practice in Rochester, where my 
 father resided at the time. He was the senior mem- 
 ber of the firm of Church, Hunger & Cooke, but I do 
 not think he was especially successful; at least he 
 did not seem to have any particular prominence, 
 and his name appears very seldom in connection 
 with reported cases. 
 
 His predilections were toward a legislative rather 
 than a judicial career, but a serious illness overtook 
 him, to which I have already referred, changing the 
 current of his life and resulting in placing him in the 
 position of Chief Judge of the Court of Appeals. 
 
 He had an impressive personality, a benignant 
 
THE COURT OF APPEALS 45 
 
 countenance, a graceful and courteous demeanour, 
 great dignity of bearing, combined with a rare fac- 
 ulty of making the humblest practitioner feel at 
 home, and creating an impression of friendly inter- 
 est, which he doubtless felt. There was in him, how- 
 ever, probably unsuspected by himself, as in the 
 case of Judge Folger, the making of a most dis- 
 tinguished judge. His opinions gave great satisfac- 
 tion by reason of their pains-taking quality, their 
 strong common-sense, their broad view of legal 
 rights and remedies, and their conservatism. His 
 influence in the court and out of it, and the confid- 
 ence, respect and even affection which he inspired, 
 furnished a lofty example of a chief judge, and im- 
 parted at the outset that tone and influence to the 
 court which his successors have been careful to pre- 
 serve. 
 
 William F. Allen would have been an acquisition 
 to any court, as he certainly was to the reorganised 
 Court of Appeals. He was well-equipped through 
 long experience in various public offices, as well as 
 by sixteen years of distinguished service as a justice 
 of the Supreme Court. After the expiration of his 
 term as justice of the Supreme Court, he removed 
 to New York City and engaged in the practice of his 
 profession. In 1867, he was elected State Comp- 
 troller, re-elected in 1869, and in 1870, was elected 
 a judge of the Court of Appeals. The interval be- 
 tween his service as justice of the Supreme Court 
 and his election to the Court of Appeals gave him 
 an unusually broad experience as a State official, 
 and as an active practitioner of large employment 
 
46 LANDMARKS OF A LAWYER'S LIFETIME 
 
 in important cases in New York City. In the posi- 
 tions which he held and in his private practice he 
 won the unbounded confidence and respect of the 
 public and of the profession. He_ was characterised 
 by simplicity, kindliness, absence of pretence and 
 unaffected courtesy. With these qualities was 
 united an unusually practical and resourceful mind, 
 a thorough and extensive knowledge of the law 
 and ability to use it accurately and effectively in 
 dealing with difficult and complicated legal contro- 
 versies. He was referred to by one of his asso- 
 ciates as "the ready Allen," and I can well imagine 
 that in the consultations of the judges, he, with this 
 quality of readiness, would be more likely than any 
 of his brothers to point out the true path to a satis- 
 factory solution of legal difficulties. 
 
 With all of Judge Allen's solid and substantial 
 qualities, he possessed, nevertheless, a vein of hu- 
 mour, much suppressed in his later days, but which 
 in earlier life found its expression even on the bench. 
 An illustration of this is to be found in his opinion 
 in the case of Wiley v. Slater, (22 Barb., 506). The 
 action was of a kind which was often found in the 
 country justices' courts, and the evidence adduced 
 undoubtedly furnished amusing reading, and excited 
 judicial wit. The case was that of a fight between 
 two dogs, one of which belonged to the plaintiff and 
 the other to the defendant, in consequence of which 
 the plaintiff's dog died. The country justice 
 awarded a verdict in favour of the plaintiff and the 
 County Court sustained his judgment, but on appeal 
 to the Supreme Court a different result was reached. 
 
THE COURT OF APPEALS 47 
 
 Judge Allen delivered the opinion, and in the course 
 of it he said : 
 
 This is the first time I have been called upon to admin- 
 ister the law in the case of a pure dog fight, or a fight 
 in which the dogs, instead of the owners, were the prin- 
 cipal actors. I have had occasion to preside upon the trial 
 of actions for assaults and batteries originating in affrays 
 in which the masters of dogs have borne a conspicuous part, 
 and acquitted themselves in a manner which might well have 
 aroused the envy of their canine dependents. The branch 
 of the law, therefore, applicable to direct conflicts and col- 
 lisions between dog and dog is entirely new to me, and this 
 case opens up to me an €ntirely new field of investigation. 
 I am constrained to admit total ignorance of the code 
 duello among dogs, or what constitutes a just cause of of- 
 fense and justifies a resort to the ultima ratio regem, a 
 resort to arms, or rather to teeth, for redress. Whether 
 jealousy is a just cause of war, or what different degrees 
 and kinds of insult or slight, or what violation of the rules 
 of etiquette entitles the injured or offended beast to insist 
 upon prompt and appropriate satisfaction, I know not, and 
 am glad to know that no nice question upon the conduct of 
 the conflict on the part of the principal actors, arises in this 
 case. It is not claimed upon either side that the struggle 
 was not in all respects dog-like and fair. Indeed I was not 
 before aware that it was claimed that any law, human or 
 divine, moral or ceremonial, common or statute, undertook 
 to regulate and control these matters, but supposed that this 
 was one of the few privileges which this class of animals 
 stiU retained in the domesticated state ; that it was one of 
 their reserved rights, not surrendered when they entered 
 into and became a part of the domestic institution, to settle 
 and avenge, in their own way, all individual wrongs and 
 insults, without regard to what Blackstone or any other 
 
48 LANDMARKS OF A LAWYER'S LIFETIME 
 
 jurist might write, speak or think of the 'rights of per- 
 sons' or 'rights of things.' I have been a firm believer 
 with the poet in the instructive if not semi-divine right of 
 dogs to fight; and with him would say, 
 
 'Let dogs delight to bark and bite, 
 For God hath made them so; 
 Let bears and lions growl and fight, 
 For 'tis their nature to.' 
 
 It is possible, that had the owners of both dogs been 
 present the belligerents would have been changed, and the 
 familiar questions growing out of son assault desmene and 
 molliter manus invposuit would have been presented, but no 
 such questions are made here. . . . 
 
 Whatever may have been the character and habits of the 
 dog, there is no evidence that he was the aggressor, or in 
 the wrong, in this particular fight. The plaintiff's dog may 
 have provoked the quarrel and have caused the fight; and 
 if so, the owner of the victor dog, whoever he may be, can- 
 not be made responsible for the consequences. ... It is 
 one thing for a dog to be dangerous to human life, and 
 quite another to be unwilling to have strange dogs upon 
 the master's premises. To attack and drive off dogs thus 
 suffered to go at large to the annoyance if not to the detri- 
 ment and danger of the public, would be a virtue, and that 
 is all that can be claimed upon the evidenc«, was done in 
 this case. Owners of valuable dogs should take care of 
 them, proportioned to their value, and keep them within 
 their own precincts or under their own eye. It is very 
 proper to invest dogs with some discretion while upon their 
 master's premises, in regard to other dogs, while it is pal- 
 pably wrong to allow a man to keep a dog, who may or 
 will, under any circumstances, of his own volition, attack 
 a human being. If owners of dogs, whether valuable or 
 not, suffer them to visit others of their species, particularly 
 
THE COURT OP APPEALS 49 
 
 if they go umnvited, they must be content to have them put 
 up with dog fare, and that their reception and treatment 
 shall be hospitable or inhospitable, according to the nature, 
 or the particular mood and temper at the time, of the dog 
 visited. The courtesies and hospitalities of dog life cannot 
 well be regulated by the judicial tribunals of the land. 
 
 The evidence is slight that the dog died in consequence 
 of this fight. I should infer, from the evidence, that he 
 continued hia annoying visitations until some one who did 
 not own a white dog with black spots on his head, made use 
 of a shot gun or ' Sharpe 's rifle, ' or some other substitute, 
 to abate the nuisance. But as this question is left in doubt 
 by the evidence, the judgment of the justice is conclusive 
 as to the cause of death. I can, however, see no just 
 grounds for the judgment. It can only be supported upon 
 the broad ground that when two dogs fight and one is killed, 
 the owner can have satisfaction for his loss from the owner 
 of the victorious dog; and I know of no such rule. The 
 owner of the dead dog, would, I think, be very clearly en- 
 titled to the skin, although, some less liberal would be dis- 
 posed to award it as a trophy to the victor, and this rule 
 would ordinarily be a full equivalent for the loss ; and with 
 that, unless the evidence differs materially from that in this 
 case, he should be content." 
 
 Judge Allen was one of those independent fear- 
 less, straightforward men of high principle and un- 
 swerving integrity which neither public clamour nor 
 the prospect of public favour could possibly move. 
 This is well illustrated in the case of The People 
 ex rel. Tweed v. Liscombe, 60 N. Y., 559. That 
 was the great case in which the Court of Appeals re- 
 leased from state 's prison William M. Tweed, at the 
 time the arch-scoundrel of New York, after the 
 
50 LANDMARKS OF A LAWYER'S LIFETIME 
 
 payment of a fine of two hundred and fifty dol- 
 lars, and one year's imprisonment. The principal 
 opinion in the case was written by Judge Allen and 
 as a specimen of judicial abUity in the discussion 
 of a difficult legal question, it is entitled to a high 
 place in the annals of jurisprudence. The question 
 was one of pure law, and related to the office and 
 effect of the writ of habeas corpus under our sys- 
 tem of jurisprudence and the statutes of the State 
 relating to proceedings under it, and in that par- 
 ticular case, with respect to review by a writ of 
 habeas corpus of the power of the Court to impose 
 the sentence which had been pronounced. Undoubt- 
 edly, the result arrived at by him and adopted by 
 the court was extremely unpopular. Public senti- 
 ment ran high in favour of inflicting upon Tweed the 
 extreme penalty of the law. A decision by the 
 Court of Appeals sustaining the sentence pro- 
 nounced upon Tweed would have been met with pub- 
 lic acclaim and popular approval, but Judge Allen 
 could say with the apostle: "None of these things 
 move me." He was too independent, straightfor- 
 ward, and fearless and too impervious to the dic- 
 tates of popular favour to yield a jot or tittle to its 
 influence. Of course, as might be expected, when 
 the announcement came that the writ was sustained 
 and the prisoner discharged, there was a tremendous 
 shout of disapproval, and among the loudest voices 
 in open criticism of the Court, was that of Charles 
 'Conor. It was certainly an unpopular decision, 
 and Judge Allen had to bear the brunt of it but, 
 after popular clamour subsided, and the public and 
 
THE COURT OP APPEALS 51 
 
 the profession were able to take a calm and dispas- 
 sionate view of the case, it became apparent that, 
 by the action of the Court of Appeals, the ends of 
 justice had been subserved and popular rights pro- 
 tected. 
 
 I recall an incident in an experience of my own 
 that created in me a very friendly feeling for Judge 
 Allen. I was once arguing a cause of some import- 
 ance to my clients, the outcome of which was doubt- 
 ful, a decision adverse to them having been made 
 in the courts below. The main propositions of my 
 argument did not seem to create much of an impres- 
 sion upon the Court, and, after presenting them, I 
 proceeded to call attention to an item of evidence 
 which I claimed had been erroneously admitted and 
 to the ruling admitting it, I had taken exception. 
 WMle I was stating my point and enforcing my 
 views as well as I could. Judge Allen was examin- 
 ing the record to ascertain how the matter arose. 
 My point having been presented, he laid aside the 
 record and turning to Judge Folger, who sat next 
 to him, remarked sotto voce but with sufficient dis- 
 tinctness to enable me to hear it: "That is a good 
 exception," and I then knew that I had one judge 
 with me upon one point at least. The result an- 
 nounced some months subsequent was a victory for 
 my clients upon that very point and upon that point 
 alone. 
 
 It is a beautiful and well-deserved tribute that 
 Chief Judge Church paid to Judge Allen at the open- 
 ing of the court on the day after his decease, and to 
 my mind, its highest expression as an estimate of 
 
52 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Judge Allen's character is in the words: "He was 
 truly a man of distinction among his contempo- 
 raries ; a distinction of the sort to be coveted, for it 
 was reached by the qualities which exalt the char- 
 acter and it took no advantage by false pretensions. 
 Through an extended life, he was an honour to his 
 race, to his profession of the law, and to his judicial 
 office. ' ' 
 
 Judge Martin Grover wrote the opinion in the 
 first case which I argued before the Court of Ap- 
 peals. It was one which my father had argued in 
 the court below, and his argument was so conclusive 
 that I suppose the attorney for whom he argued it 
 considered that there was no danger in employing 
 me to argue it in the Court of Appeals, and in so 
 doing he was justified by the result. Of course, a 
 budding young lawyer of twenty-seven years would 
 naturally be expected to shake in his shoes as this 
 august tribunal filed through the open door from 
 their consultation room on to the bench, and in fact, 
 I did so, and I have no doubt my argument was char- 
 acterised by considerable diffidence and embarrass- 
 ment, coming as it did from a mere stripling to 
 those to whom the law had been the study of a life- 
 time. They may have noticed my difficulty, and in 
 the course of my feeble argument, I remarked in 
 reply to my opponent, that he had stated that there 
 was no evidence upon a certain point, but that I 
 could point it out. Proceeding to do so and begin- 
 ning to read I was startled by a high-pitched voice 
 exclaiming: "We'll find it — we'll find it," and 
 looking up I saw that it had proceded from Judge 
 
THE COURT OP APPEALS 53 
 
 Grover, — and they did find it. This is my first 
 recollection of Judge Grover. 
 
 His massive, big-boned frame was suited to that 
 of a lumberman; he was not carefully dressed, and 
 in my subsequent intercourse with him he always 
 appeared in a rather ill-fitting suit of black broad- 
 cloth, which gave him. somewhat the appearance of 
 a backwoodsman who had dressed up for a special 
 occasion, and when he appeared out of court, his 
 head was surmounted by a stove-pipe hat of liberal 
 dimensions not carefully brushed. His necktie was 
 always a little awry. He had a most remarkable 
 countenance; his brow was broad, his face square, 
 his jaw short and firm, his voice nasal, his eyes were 
 like shining beads, his nose was small, and his mouth 
 a long straight line across his face. His portrait 
 in the court room at Albany is not his likeness when 
 I knew him. If there were ever marks upon any 
 one as a man of the people, of rugged simplicity, of 
 difficulties and obstacles surmounted, of honesty of 
 purpose, of keenness of intellect, of lively wit — these 
 marks were on Martin Grover. 
 
 His home was in Angelica, a small hamlet of Alle- 
 gheny County, in the northwest corner of the State. 
 There, amid the rough life of the early settlers, dur- 
 ing the first half of the last century, he had with his 
 powerful mind cultivated by hard study, his knowl- 
 edge of men, his uprightness of purpose, and kindli- 
 ness of character, acquired such commanding in- 
 fluence that the verdicts of juries in all that locality 
 were moulded by him, and although he rarely ap- 
 peared before Appellate tribunals he had the con- 
 
54 LANDMARKS OF A LAWYER'S LIFETIME 
 
 fidence and respect of every judge before whom he 
 stood. He was a true son of the soil: he had no 
 systematic habits of work, his office was a gather- 
 ing place of all classes, he delighted them with his 
 anecdotes; he was "Lincoln-like" in his capacity to 
 enforce his views with an apt story. It is said that 
 a large part of his time would be occupied sitting 
 upon his table in his outer office regaling his friends 
 and clients with his anecdotes, until his business 
 would accumulate to such an extent that it de- 
 manded immediate attention, when he would secrete 
 himself in his inner office, deaf to all calls for several 
 weeks until the arrears of business had been cleared 
 away. 
 
 His tact before a jury of strangers, in a locality 
 where he was himself a stranger, was illustrated in 
 a case in which he was employed for the plaintiff in 
 Livingston County. He had the disadvantage of be- 
 ing surrounded by unfamiliar associations, and of 
 being opposed by eminent advocates who were on 
 their "native heath," before a Livingston County 
 jury, with whom they were well acquainted. Mr. 
 Grover's client was an Allegheny County lumber- 
 man, typical of the residents of that county, and he 
 himself was a fair type of the Allegheny County 
 lawyer, — both of them rough-hewn specimens of 
 manhood, with little culture or refinement. The dif- 
 ference between the polished advocates of Livingston 
 County and their rough and ready Allegheny County 
 brethren, was nowhere more noticeable than be- 
 tween him and his opponents. At the time the trial 
 began, the case, under these circumstances, seemed 
 
THE COURT OF APPEALS 55 
 
 half won by Mr. Gr over's adversaries. The Liv- 
 ingston County advocates were not slow to create 
 the impression that the Allegheny County plaintiff, 
 and the lawyer he had brought with him, were de- 
 serving of little attention and of less credit by an 
 intelligent jury of Livingston County against a 
 resident of Livingston County of high standing, 
 most unjustly attacked. 
 
 The case proceeded with a good many slurs to in- 
 crease this impression, but Mr. Grover's ready wit 
 and keen intellect, had such a potent influence with 
 the jury that notwithstanding his rough and ready 
 demeanour, he proved a formidable adversary. The 
 impression which the Livingston County advocates 
 had endeavoured to create, they lost no opportunity 
 of deepening in their final address to the jury. It 
 was here that Mr. Grover dealt his master stroke, 
 acknowledging freely the superior intelligence, cul- 
 ture and breeding of the men of Livingston County 
 illustrated only too well, as he observed, in compar- 
 ing the polished and educated lawyers of Livingston 
 County with one so lacking in early advantages as 
 himself; and as he proceeded to compare the men 
 of Livingston County with the rough and uncouth 
 men of Allegheny County due to this lack of early 
 advantages, he reminded them that the men of both 
 localities were the same in one respect at least, their 
 love of justice, and that if in their love of it, and 
 their search for the truth they would look beneath 
 the exterior, they would discover that "as in water, 
 face answereth to face, so heart answereth to heart 
 Having by this apt quotation from Holy 
 
56 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Writ readied the seat of sympathy, he dealt with 
 the facts of the case with that common-sense but 
 effective method which he knew only too well how 
 to employ, and departed from the scene of conflict 
 leaving his adversaries unhorsed. 
 
 It was natural, therefore, that whatever his quali- 
 fications might be, this popular idol should be elected 
 to the bench, which occurred in 1857. From that 
 time on he was continuously on the bench until his 
 death. 
 
 While he was a justice of the Supreme Court, he 
 was assigned to hold court on a certain occasion 
 in the City of New York. He probably looked and 
 acted like an Allegheny farmer. He did not know 
 at what hour the court opened, and thinking it 
 would be well to be in time he arrived at the court 
 house about nine o'clock in the morning. He found 
 the door of the court room locked and so he walked 
 about in the hall to await its opening. About ten 
 o'clock the clerk of the court appeared, and finding 
 this countryman waiting he asked him what he was 
 doing there. Judge Grover, without disclosing his 
 identity, remarked that he had some business with 
 the court and would like to know when the court 
 opened. The clerk replied that it depended some- 
 what upon the judge, but that generally it opened 
 about half-past ten. Judge Grover asked him if he 
 might take a seat inside and the clerk said, "Yes, 
 those benches back there are reserved for witnesses 
 and spectators, and you can sit there." Judge 
 Grover took a seat and waited patiently. Presently 
 a young man appeared with a bundle of papers and 
 
THE COURT OF APPEALS 57 
 
 took a seat near him. Judge Grover inquired 
 whether he was a lawyer; he replied that he was 
 studying law, but had not been admitted. Engag- 
 ing him in conversation, Judge Grover asked him 
 what the practice of the court was with regard to 
 adjourning cases. The young man replied that it 
 depended very much on the judge — that some of the 
 judges were easy and good-natured, and some of 
 them were very strict. He went on to explain that 
 there were a few legal excuses, such as sickness of a 
 party or his counsel, or the absence of a material 
 witness, and that some judges required that kind of 
 excuse, while others were more liberal, and that 
 sometimes almost any kind of excuse would be ac- 
 cepted. "Well," said Judge Grover, "I suppose 
 you are attending here for some one else and will 
 answer some case." "Yes," said the young man, 
 "I have come here because I am going to try to get 
 an adjournment, but I am afraid the judge won't 
 grant it as my excuse isn't very good." "Well," 
 said Judge Grover, "do your best, and perhaps the 
 judge will grant it after all." 
 
 As it was then half -past ten and the court room 
 was well filled. Judge Grover arose from his place 
 and going over to the clerk's desk, quietly remarked, 
 "I guess it is about time to open court, isn't it?" 
 "Yes," said the clerk, "but the judge is late this 
 morning." "Oh, no, I am Judge Grover," he re- 
 plied, ' ' and I am going to hold court. ' ' Imagine the 
 clerk's feelings after assigning him to one of the 
 rear benches, and the young man's consternation to 
 think he had been revealing his confidences to the 
 
58 LANDMARKS OP A LAWYER'S LIFETIME 
 
 judge upon the bench. Soon the young man's case 
 was called and with twinkling eyes, the judge looked 
 upon him, with whom he had conversed. He lis- 
 tened to his excuse, which was certainly very lame, 
 and under hardly any circumstances would be ac- 
 cepted. Moreover, the adversary seemed insistent, 
 and ridiculed the adjournment of the case for any 
 such reason. Finally both counsel had had their 
 say, and it was for the judge to decide. Looking at 
 the young man. Judge Grover remarked, "The ex- 
 cuse you have given is one that perhaps I ought not 
 to accept, but you have given the Court a great deal 
 of valuable information this morning, and so I am 
 going to adjourn your case." 
 
 Those who have enjoyed the opportunity of an in- 
 formal chat with Judge Grrover, when he was in a 
 story-telling mood, will appreciate what is said of 
 him in the tribute paid to him by his associates that 
 "his humour was so lively and overmastering that 
 he sometimes jostled dignity and even decorum." 
 
 One evening when I was at Congress Hall in Al- 
 bany in attendance upon the court, I was seated 
 alone in the public office-room of the hotel when 
 Judge Grover entered, having just come from his 
 room to seek a little of that companionship which 
 he used to find around the hotel stove in the tavern 
 at the county seat where he happened, in former 
 days, to be holding court. I had never been intro- 
 duced to him, and although this was one of my first 
 attendances on the court, he probably remembered 
 having seen me, and took a chair next to mine. We 
 sat together probably for an hour or more, and his 
 
THE COURT OF APPEALS 59 
 
 humorous recitals of early experiences in Alle- 
 gheny County told with his peculiar manner, his high 
 pitched voice and quaint expressions, were sufficient 
 to "jostle dignity and even decorum" to the fullest 
 extent, and I think I can truthfully say that I never 
 spent a more entertaining evening. It would be in 
 vain to attempt to reproduce his anecdotes with all 
 their original humour, even if I recalled them per- 
 fectly after the lapse of so many years. It was he 
 that used to say that "up in Allegheny County, a 
 party who is beaten in a lawsuit always has two 
 remedies ; one is to take an appeal, and the other to 
 go down to the tavern and swear at the Court. ' ' 
 
 One of his associates used to tell of an experience 
 in consultation, when one of the judges had read an 
 opinion which he had written in a case awaiting de- 
 cision. After listening patiently to its reading, he 
 startled the judges present by remarking, "I guess 
 when you wrote that you had your head in a bag; if 
 I were you I would save up that opinion until you 
 find some case to which it applies, because it cer- 
 tainly don't apply to this case." I suppose it is 
 something like this to which his associates allude in 
 their tribute when they say "he was very real and 
 practical, and hence not pleased with forms nor 
 observant of conventionalities or at times of courte- 
 sies." He was indeed one of those hard-headed, 
 keen-witted, practical men; a rough diamond, in 
 whom you would not look for great learning and 
 wide culture, but if you desired to find an accurate 
 knowledge of legal principles and clear insight into 
 the facts of a case, and strong common sense in 
 
60 LANDMARKS OF A LAWYER'S LIFETIME 
 
 dealing with them, you would only need to seek for 
 it in Ms opinions. 
 
 A remarkable feature of Judge Peckham was Ms 
 personal appearance. It was not in any sense ju- 
 dicial but rather that of a soldier. It used to be said 
 that it was worth a journey to Albany to see Judge 
 Peckham walk up State Street. He was tall, thin, 
 and very erect, with a countenance stern, and as 
 though war-worn, emphasised by a rather fierce 
 looking white moustache, and his double breasted 
 black coat always closely buttoned up gave him a 
 bearing particularly military ; but the character of a 
 soldier, except in the firmness and the courage of 
 his convictions was not typical of the man. He had 
 a remarkably kind and generous heart, and had 
 rendered conspicuous service as a justice of the 
 Supreme Court, and subsequently in the Court of 
 Appeals. His home being in Albany, he was not 
 closely identified with the other judges in their as- 
 sociations out of court, and there was little oppor- 
 tunity for intercourse with the members of the bar. 
 
 It was indeed a mysterious Providence that after 
 a short service in the court, when seeking rest and 
 recreation from his arduous labors, he should have 
 met his tragic fate on the ill-fated steamer Ville de 
 Havre. 
 
 Judge Peckham was the father of two distin- 
 guished sons — Eufus W. Peckham, who followed in 
 his father's steps as a justice of the Supreme Court 
 of the State, and subsequently of the Court of Ap- 
 peals, and later still added new honours to the fam- 
 ily name by receiving an appointment from Presi- 
 
THE COURT OF APPEALS 61 
 
 dent Cleveland, as associate justice of the Supreme 
 Court of the United States. Those who were ac- 
 quainted with him will perhaps recognise in his ap- 
 pearance somewhat of the soldier-like quality pos- 
 sessed by his father. The other son was our beloved 
 and respected associate at the bar — Wheeler H. 
 Peckham, whose distinguished services while a 
 young man in the legal proceedings against the 
 Tweed regime, and his identification with every 
 movement to redress public wrongs and to promote 
 public welfare, coupled with his attainments as a 
 lawyer, made him one of New York's most valuable 
 citizens. Before his brother Eufus was appointed 
 to a seat in the United States Supreme Court, the 
 same appointment was conferred upon him by Presi- 
 dent Cleveland, but adverse political interests were 
 sufficiently powerful to bring about his rejection by 
 the Senate. 
 
 The memory of the three distinguished Peckhams 
 is perpetuated in the history of the State. 
 
 In his earlier days and until he ascended the 
 bench of the Court of Appeals, Chief Judge Charles 
 J. Folger practiced law in Geneva, which was not a 
 great distance from my father's residence — Pal- 
 myra. They were brought frequently into profes- 
 sional relations with each other and my father being 
 twenty years older than Judge Folger, was naturally 
 sought by him at the time as counsel, especially after 
 my father retired from the bench. An instance of 
 this is the case of Teall v. Barton (40 Barb. 137). 
 
 Although Judge Folger was a wise counsellor, I 
 do not think that at the time he entered upon his 
 
62 LANDMARKS OF A LAWYER'S LIFETIME 
 
 judicial career he was regarded as an eminent law- 
 yer. His name appears but. rarely in tlie reports 
 of cases argued in the Appellate tribunals; his ten- 
 dencies were rather in the direction of oflBce prac- 
 tice, and of public life in legislative bodies. Shortly 
 before he was nominated for judge, he served with 
 ability as a member of the State Senate, and later 
 was appointed assistant treasurer of the United 
 States in New York City. He was a man of impos- 
 ing appearance and dignified demeanour, and evi- 
 dently possessed a latent judicial faculty which, on 
 his accession to the Court of Appeals, rapidly de- 
 veloped, until he became recognised as one of the 
 most forcible and useful members of the court; his 
 opinions commanded the highest respect as accurate 
 expositions of the law, and upon the death of Chief 
 Judge Church he was appointed to occupy that high 
 position, which he filled with marked ability. A 
 noticeable feature of his opinions is his quaint and 
 unusual form of expression, which at times seemed 
 to be almost an affectation, but was evidently en- 
 tirely natural. This is well illustrated in the 
 beautiful tribute which he read as senior associate 
 judge at the proceedings in the court in reference to 
 the death of Chief Judge Church, and, as well, in his 
 letter to his associates on his retirement from the 
 position of Chief Judge, to accept a place in Presi- 
 dent Arthur's cabinet. This is it: 
 
 "Washington, D. C, November 14, 1881. 
 My Bretlieren : for so I will call you, yet awhile. Tour 
 note of the lOth instant touches me deeply. Its words of 
 praise I will ever prize ; for I know you so well, as to know 
 
THE COURT OF APPEALS 63 
 
 that you are not apt to take the names of things in vain. 
 Besides that, I may say to each of you the verse long ago 
 spoken : 
 
 'Laetor nam, laudari me abs te, pater, laudato viro.' 
 
 'The forty volumes of New York Reports' ; they do indeed 
 testify (I may say it now) to an unremitting judicial labor 
 that has seldom been outstripped; and the sad memorials 
 that appear in four of them, tell too, how often vigor of 
 body yielded under strain of mind. The many opinions of 
 all the seven are there, as finished, they left their hands. 
 But as no one may know, by looking on a work of art, the 
 manifold deft touches that brought it to completeness, so 
 no one can tell the thought, the care, the toilsome passage 
 through perplexities, the laborious search for precedents, 
 the doubt, the deliberation, the conference with fellows, the 
 nice poising of reasons, that lead up to the laconic, yet 
 weighty conclusions 'judgment should be affirmed' or 'judg- 
 ment should be reversed.' 
 
 But the dearest of my recollections of the Court of Ap- 
 peals wiU be of the harmony of intercourse, the uniform 
 courtesy, the mutual confidence, the unvarying respect for 
 one another, the cordial appreciation, the brotherly love, 
 that held us in happy personal and official relations. When 
 I reflect on all these things, I wonder almost to sobbing that 
 I could have been led to give up the place of formal Head 
 of such a Court, the nominal Chief of such a body of 
 Judges. 
 
 My Bretheren, I thank you for your words of praise and 
 affection, and subscribe myself. 
 
 Sincerely your friend, 
 
 ChAS. J. POLGBE." 
 
 A short time after his appointment, I chanced to 
 meet him at lunch in the City of New York, and ven- 
 
64 LANDMARKS OP A LAWYER'S LIFETIME 
 
 tured to remark that I did not see how he could have 
 brought himself to give up the position of Chief 
 Judge for the position of Secretary of the Treasury. 
 His face clouded somewhat, and he replied with deep 
 seriousness, "I do not see how I could either." Un- 
 doubtedly, he made a great mistake which probably 
 embittered the rest of his life. During his occupancy 
 of that office he was led to accept the nomination for 
 governor of the State of New York, which was con- 
 ferred under circumstances which were objection- 
 able to the voters, although no personal reflection in 
 any way could possibly be made upon Judge Polger 
 as a high-minded and honorable man. His opponent 
 was Grover Cleveland, who was elected by an enor- 
 mous majority. On retiring from the Treasury he 
 disappeared from public life under a weight of great 
 disappointment and sorrow. His death occurred 
 not long afterwards. 
 
 His fine character, and his eminent public service 
 as a judge are displayed in forty volumes of the 
 New York reports, and constitute a record of which 
 anyone might be proud. 
 
 At forty-six years of age having reached the full 
 tide of professional practice, in which he could have 
 easily earned twice the amount of his salary, Charles 
 A. Eapallo ascended the bench of the Court of Ap- 
 peals without any previous judicial experience, — 
 but he was a born judge. His thought was straight 
 in its logical processes, his mind clear in its per- 
 ceptions, his use of language accurate and forcible 
 in expression, his literary style concise and dignified 
 and the learning he displayed so remarkable that his 
 
THE COURT OF APPEALS 65 
 
 opinions seem to possess that value of permanency 
 wMcli characterises the opinions of the great Chief 
 Justice Marshall. In fact, the quality of his mind, 
 his habit of thought and dignity of utterance were 
 much the same as Chief Justice Marshall's, while he 
 resembles him in dealing with his cases on principle, 
 and in the infrequency with which he cites authori- 
 ties in support of his views. I do not believe that 
 we have ever had a judge in the Court of Appeals 
 who contributed more to its high character, efficiency 
 and renown than Judge Rapallo. He looked the 
 judge. He had a fine, thoughtful countenance, with 
 an expression of great seriousness and dignity, and 
 looking at one through the spectacles which he hab- 
 itually wore, it was impossible to feel otherwise than 
 as in the presence of a master mind. In moments 
 of excitement or merriment, when the other members 
 of the court were visibly affected, I do not remember 
 ever to have seen him relax to any noticeable ex- 
 tent the habitual seriousness and dignity which char- 
 acterised his judicial bearing. Nor do I see how it 
 could ever have been possible to trifle with Judge 
 Rapallo or to treat him with an easy familiarity. 
 He possessed to a marked degree the respect and 
 confidence of the bar, and in his death the bench 
 sustained a loss which no other Judge has com- 
 pletely supplied. He entered upon his term of serv- 
 ice at the organisation of the court. He was induced 
 to accept the position from a high sense of public 
 duty, performed less reluctantly, perhaps, because 
 of his scholarly taste, and his judicial temperament 
 and inclinations. He had for twenty years or more 
 
66 LANDMARKS OF A LAWYER'S LIFETIME 
 
 been constantly engaged in tlie conflicts of litigation. 
 He was counsel for Commodore Vanderbilt and the 
 various railroads which, he controlled, and he pre- 
 pared his will. He was thoroughly equipped in 
 every particular and made a large pecuniary sacrifice 
 when he entered upon his judicial career. 
 
 My personal relations with Judge Eapallo were 
 more formal than with some of the other members 
 of the court. In my attendances on the court pro- 
 fessionally in a considerable number of cases I had 
 an excellent opportunity of observing his character- 
 istics and bearing, and casual meetings upon the 
 train or in some festive gathering afforded an oppor- 
 tunity of personal intercourse. He was exceedingly 
 courteous and gracious, manifesting kindliness and 
 consideration, and while he listened with interest his 
 words were comparatively few. 
 
 Sixty-four volumes of the Court of Appeals Re- 
 ports contain his record as judge. At the close of 
 the last of these volumes will be found the tributes 
 of appreciation of Judge Eapallo following his 
 death. 
 
 One of his opinions has always impressed me as 
 being a notable example of judicial ability from 
 every standpoint. It is the case of Manice v. Man- 
 ice (43 N. Y., 303), which involves some of the most 
 intricate questions of testamentary disposition con- 
 cerning trust limitations and the suspension of the 
 power of alienation, and is a landmark in the law. 
 In the report of this case it is interesting to remark, 
 in passing, that it contains in extenso a very inter- 
 esting specimen of a brief of Charles 'Conor. Al- 
 
THE COURT OP APPEALS 67 
 
 thougli the questions involved have, perhaps, in the 
 light of modern legislation, been removed from the 
 domain of judicial discussion, Judge Rapallo's opin- 
 ion will repay perusal as a specimen of profound 
 learning and powerful reasoning. 
 
 I shall not attempt to follow down what is getting 
 to be the long line of judges who have sat in the 
 court since the first members of it began to disap- 
 pear. There was the dignified presence of Chief 
 Judge Ruger; the keen and clear intellect of Judge 
 Earl; the strong and forceful mind of Judge Dan- 
 forth; the refined and polished opinions of Judge 
 Finch; the powerful and dominating personality of 
 Judge Peckham, the junior; the gentle and kindly 
 nature, but sound judicial sense of Judge Miller; 
 and the other worthies, who in that important tri- 
 bunal have borne their part ; but it is at least due to 
 them to say, and it is also a matter of public con- 
 gratulation, that by their service, the people of 
 the State of New York have abundant reason to be 
 proud of their Court of Appeals. 
 
 Fortunately we have still with us the only sur- 
 vivor of the original court — the venerable and hon- 
 oured Chief Judge Andrews, who has the unanimous 
 and unbounded respect and affection of the entire 
 bar, but of whom, in view of my purpose to make no 
 extended reference to those now living, I am unaljle 
 to say more. 
 
CHAPTER in 
 
 NOTABLE APPELLATE JUSTICES 
 
 At the time of my admission to the bar and until 
 1896, the three courts, the Supreme, the Superior and 
 the Court of Common Pleas, exercised their separate 
 jurisdictions, which, so far as the City of New York 
 was concerned, were practically co-ordinate. Each 
 had its separate organisation, its own series of re- 
 ports, its own clerk's oflSce, its staff of employees, 
 each its Appellate tribunal which made its own law 
 respecting, of course, the decisions of the others, but 
 at times, unavoidably conflicting. Their records 
 were kept entirely separate, and although they ad- 
 ministered the same system of jurisprudence, they 
 had no system by which its exercise by each of them 
 could be brought into harmony with that of the 
 others. 
 
 The Court of Common Pleas in one respect had 
 exclusive jurisdiction relating to assignments for 
 the benefit of creditors. The only practical differ- 
 ence, however, between these courts was that the 
 process of the Superior Court and of the Common 
 Pleas was confined to the City and County of New 
 York. 
 
 An attempt was at one time made through an act 
 of the Legislature to permit a summons issued from 
 the Superior Court or the Court of Common Pleas 
 to be served on a defendant outside of the City of 
 
 68 
 
NOTABLE APPELLATE JUSTICES 69 
 
 New York within the State, but it was declared un- 
 constitutional. It was a sorry day for a non-resident 
 of the City of New York when he chanced to be found 
 in the City and was served with a summons issued by 
 the Superior Court or the Common Pleas, as there 
 was no method by which the case could be removed to 
 the Supreme Court, or the place of trial changed ; the 
 consequence being that he was then obliged to liti- 
 gate the case in the City of New York, involving 
 frequently the burden of heavy expense for procur- 
 ing the attendance of witnesses, as well as of con- 
 ducting a litigation at a considerable distance from 
 his residence. The lawyers found these separate 
 courts a very convenient method of choosing their 
 forum, and of avoiding a judge in one of the other 
 courts to whom there was some objection. In 
 large litigations, involving a diversity of interests, 
 it happened, not rarely, that by skillful legal tactics, 
 resort would be had by different interests to the 
 different courts upon practically the same subject 
 matter, creating a conflict of jurisdiction and a web 
 of legal entanglements that became, at times, al- 
 most impossible to unravel. 
 
 At this time, these three courts had been recently 
 housed in the court house then known as the Tweed 
 court house, erected at a cost of about eight mil- 
 lion dollars, a monument to the extravagance and 
 fraud of the Tweed regime. A story went the 
 rounds, at the time the impeachment proceedings 
 against Judges Barnard and Cardozo were pending, 
 of an observation by Judge Barnard to an individual 
 in the court room where he was presiding who ac- 
 
70 LANDMARKS OP A LAWYER'S LIFETIME 
 
 cidentally upset one of the ordinary cane seated 
 chairs which, in falling, made considerable noise. 
 
 "You must exercise more care" said the Judge, 
 "how you treat those chairs, for you should remem- 
 ber that each one of them cost $300." 
 
 The Supreme Court occupied the second floor of 
 the court house, which was quite sufficient for its 
 needs at that time, and one-half of the third floor 
 was occupied by the Superior Court and the other 
 half by the Court of Common Pleas. 
 
 Under the revision of the State constitution which 
 took effect in 1871, important changes were made 
 in the system of hearing appeals which previous to 
 that time had been heard by a general term in each 
 of the eight judicial districts, composed of three 
 judges in each of these districts. The result often 
 was that a judge would sit at general term in review 
 of a decision of his own from which an appeal had 
 been taken. This was manifestly unjust in view of 
 his preconceived opinion upon the question involved. 
 One of the most beneficial results accomplished by 
 the revision was the adoption of a system by which 
 this injustice was removed. The multiplicity too 
 of the general terms was objectionable, and under 
 the revision the State was divided into foxir depart- 
 ments and a general term constituted by the selec- 
 tion and designation by the governor at his own 
 pleasure of three justices in each, selected from 
 any of the judicial districts in the State. This sys- 
 tem continued until a further revision of the State 
 constitution which took effect in 1896, under which 
 an Appellate Division was created for each of the 
 
NOTABLE APPELLATE JUSTICES 71 
 
 four departments, to consist of five justices selected 
 and designated by the governor. 
 
 The general term of the Supreme Court, the pred- 
 ecessor of the Appellate Division, was composed, 
 when I first saw it, of Judges Ingraham, Barnard 
 and Cardozo. It was a trying position for Judge 
 Ingraham. Judges Barnard and Cardozo fell un- 
 der grave suspicion as adherents of the Tweed re- 
 gime and it was not long before impeachment pro- 
 ceedings were brought against them which termin- 
 ated in Judge Barnard's impeachment and Judge 
 Cardozo 's resignation while under impeachment 
 charges. No one ever had the least suspicion of 
 Judge Ingraham 's absolute integrity. He was a 
 high-minded, upright and efficient judge; his judi- 
 cial experience extended over many years, first as 
 a judge of the Court of Common Pleas and later of 
 the Supreme Court. A very excellent portrait of 
 Judge Ingraham may be found in the court room 
 of the Appellate Division, where his son, the second 
 Judge Ingraham, has long served with the great- 
 est efficiency, and now serves as presiding justice. 
 I used often to see Judge Ingraham, after his re- 
 tirement from the bench, accompanied by his son, 
 then in the early years of his practice, and the mani- 
 fest congeniality and sympathy between them and 
 the devotion of the son to the father have often 
 been in my mind when, while waiting to argue one 
 of my cases, I glanced from the judge on the bench 
 to the judge in the picture. 
 
 I had but few opportunities of seeing Judge Bar- 
 nard on the bench, but these few were interesting. 
 
72 LANDMARKS OF A LAWYER'S LIFETIME 
 
 One of them was at the trial of one of the cases in 
 the Erie litigation. Judge Barnard's appearance 
 was anything bnt judicial and rather that of an 
 alert and prosperous Wall Street broker. His 
 black hair, drooping black moustache, piercing black 
 eyes, sallow complexion and animated countenance 
 gave an impression of energy and intellectual acu- 
 men; his dress was also anything but judicial, as 
 he frequently appeared on the bench in a dark 
 brown or black velvet sackcoat. He had a peculiar 
 habit of whittling, probably due to his restlessness, 
 and for this purpose he was furnished with a lib- 
 eral supply of soft pine sticks which he indus- 
 triously whittled to no purpose, as the case pro- 
 ceeded, except to create a pile of shavings. I hap- 
 pened to enter the court room as a spectator at a 
 time when James Fisk, with whom Judge Barnard 
 was said to be on intimate terms out of court, was 
 upon the witness stand; Mr. David Dudley Field 
 was counsel for Mr. Fisk, who was one of the par- 
 ties and Commodore Vanderbilt, the other party, 
 was represented by William A. Beach, one of the 
 most forcible and distinguished members of the 
 bar. Mr. Fisk was evidently bent upon telling his 
 story in his own way, and Mr. Beach was equally 
 determined that he should give perfectly responsive 
 answers. Mr. Beach asked him a question which 
 called for a direct answer and Mr. Fisk replying 
 launched forth in a loud tone. "Stop," shouteci 
 Mr. Beach, but Mr. Fisk continued; "stop, stop," 
 shouted Mr. Beach — Mr. Fisk proceeding and Mr. 
 Beach continuing his shout of "stop," until finally 
 
NOTABLE APPELLATE JUSTICES 73 
 
 Mr. Fisk ceased with tlie remark : "I give up, you 
 can talk loudest." "Yes," replied Mr. Beach in 
 his most ponderous and dignified tones, "in a con- 
 test of lungs I have better lungs than you have." 
 Of course those present, including Judge Barnard, 
 were convulsed with laughter. 
 
 A story told of Judge Barnard, is that a lawyer 
 who had argued before him in support of a motion 
 for an injunction and, the motion not being decided, 
 sought an interview after a few days with Judge 
 Barnard to inquire when he was likely to decide it. 
 He explained that the interests of his client made it 
 important that he should obtain his injunction as 
 soon as possible (and asked when a decision was 
 likely to be rendered). Judge Barnard looking at 
 him quizzically replied: "Well, I understand that 
 you wish a speedy decision ; if that is what you want 
 I will decide it now, your motion is denied." The 
 lawyer attempted earnestly to remonstrate with him, 
 hoping he would not decide it until after careful 
 consideration and wished him to take all the time he 
 desired. "Oh, well," said Judge Barnard, "you are 
 anxious for a speedy decision and I have given it, 
 and you know Judge Barnard never reverses him- 
 self." 
 
 There was a lawyer by the name of Hirsch who 
 had a remarkably deep voice of great power and 
 resonance. He had a motion which he desired to 
 argue in person at a time when Judge Barnard was 
 presiding at chambers, but as he was engaged with 
 some important business in his office, he sent over 
 a subordinate to apply for a postponement. As the 
 
74 LANDMAEKS OF A LAWYER'S LIFETIME 
 
 application met with considerable opposition, Judge 
 Barnard stated that Mr. Hirsch could submit the 
 matter without argument. "But," was the reply, 
 "Mr. Hirsch wants to be heard on the motion, he 
 does not want to submit the case without argument, 
 he wants to be heard." If that is all," replied 
 Judge Barnard, "you just go to Mr. Hirsch and 
 tell him to go right on with his argument in his 
 office and that I will be able to hear him." 
 
 I was in court one day when Judge Barnard was 
 presiding, just at the time the impeachment charges 
 had been presented to the legislature, but before 
 they were acted on. The late Judge William H. 
 Arnoux appeared before him on an application for 
 an allowance in a will case, I think that of Eoll- 
 wagen v. Rollwagen, in which he had been success- 
 ful. The estate being a large one he applied for 
 an allowance of $30,000. This seemed to stagger 
 Judge Barnard for the moment, but Judge Arnoux 
 explained to him the importance of the litigation, 
 and the great amount of labour involved, and when 
 he concluded Judge Barnard looked up remark- 
 ing, ' ' Oh, well, take your allowance, and let them put 
 it in the charges. ' ' 
 
 I have no intention of resurrecting the long- 
 buried impeachment charges. It was a sad day for 
 the bench and the bar when the solemn verdict of 
 impeachment was rendered. Judge Barnard was, 
 I think, the victim of his friendships and associa- 
 tions. He was naturally convivial, very confiding, 
 loved his friends, and was led to exercise his judi- 
 cial functions in their interest, but I believe with- 
 
NOTABLE APPELLATE JUSTICES 75 
 
 out any gain, pecuniary or otherwise, to himself. 
 He was a courageous man. He bore the conse- 
 quences of his act with fortitude; he went through 
 the ordeal without showing the white feather; he 
 never acknowledged guilt of any kind, and he sub- 
 mitted to and bore the disgrace manfully. Judge 
 Cardozo, his associate on the bench, was also the 
 subject of charges, but his course was incomparably 
 inferior to that of Judge Barnard, for in the face 
 of the charges which had been preferred he took 
 refuge in resigning, which, in the opinion of every 
 member of the bar, amounted to an acknowledg- 
 ment of his guilt. 
 
 Judge Barnard's brother, Joseph F. Barnard, dur- 
 ing all this time and for many years after, was a jus- 
 tice of the Supreme Court in the Second Judicial 
 District, and his residence was in Poughkeepsie. 
 In appearance he resembled his brother somewhat, 
 as he likewise did in an absence of the judicial man- 
 ner, although in a different way. There was a dis- 
 regard of everything that we associate with the ju- 
 dicial make-up, and in dress and demeanor he looked 
 more like a prosperous farmer or, more accurately 
 speaking, a country justice of the peace. His ca- 
 reer was in every way honourable, and he was held 
 in high esteem by the citizens of his locality. He 
 had an off-hand way of dispensing a kind of rude jus- 
 tice with an absolute disregard of precedents. On 
 Saturdays he held a special term in Poughkeepsie 
 for the hearing of motions, and would be found sit- 
 ting in the midst of the lawyers and litigants, not 
 in one of the court rooms, but in a kind of general 
 
76 LANDMARKS OF A LAWYER'S LIFETIME 
 
 room where there was a large round table, with 
 little attempt at orderliness, and with an entire 
 absence of judicial surroundings. Usually, there 
 were several cases in which lawyers from New York 
 were engaged, and as they arrived at the same time 
 by a morning train and proceeded in a body to the 
 court house, he would await their coming with a bit 
 of suspicion and the chances were, that as against 
 local counsel he would deal with them in a summary 
 way, and send them back to New York, sadder and 
 wiser men. I do not think New York lawyers ever 
 gained much by making motions in cases to be heard 
 before Judge Barnard on Saturday mornings in 
 Poughkeepsie. For a number of years he was pre- 
 siding justice of the General Term in the Second 
 Department, and he was certainly prompt and ex- 
 peditious in disposing of the business which came 
 before that tribunal. He was not patient with long 
 arguments, and being unusually keen and alert, 
 he would bring counsel to what he conceived to be 
 the point of the case with a good deal of abrupt- 
 ness. His opinions were very brief and he rarely 
 cited authorities, but there was this merit in them, 
 there was no mistaking the point he had decided, 
 and if he was wrong he was manifestly so. 
 
 It must have been a great relief to Judge Ingra- 
 ham, as it certainly was to the bar and to suitors, 
 when the places of Judges Barnard and Cardozo at 
 the General Term were filled by Judges John E. 
 Brady and Noah Davis. Judge Brady was a brother 
 of that eminent jury lawyer, James T. Brady, one 
 of the most interesting figures at the bar. He 
 
NOTABLE APPELLATE JUSTICES 77 
 
 commenced his career in the Common Pleas Court 
 and later was elevated to the Supreme Court bench. 
 Judge Brady acquitted himself creditably upon the 
 bench, but it was in social intercourse that he was 
 most successful. He had a very agreeable personal- 
 ity ; he was full of good stories ; he was a bon vivant; 
 he was a man-about-town in the best sense of the 
 word; he loved the drama and the society of the 
 stage, and all the good things of life ; he was gener- 
 ous, kindhearted, considerate, and yet, as a judge, he 
 was firm, decided, industrious, painstaking, capable, 
 and performed his part, if not with distinguished 
 ability, yet with fairness, good judgment and sound 
 common sense. 
 
 Judge Brady was full of rollicking good humour 
 which sometimes manifested itself on the bench at 
 the expense of his judicial dignity. He never 
 seemed to be able to control his risibility when a 
 ludicrous situation presented itself and, sitting as 
 he did on the right of Judge Davis, who had a quiet 
 and dignified appreciation of the humorous as- 
 pects of life, occasions would frequently present 
 themselves when something laughable would strike 
 Judge Brady and he would lean towards Judge 
 Davis making some humorous observation, at the 
 conclusion of which his face would be wreathed in 
 smiles and he would shake in his chair much to the 
 annoyance, as I know from experience, of the coun- 
 sel who happened to be arguing. 
 
 Judge Davis, referring to this characteristic of 
 Judge Brady, once told me an anecdote of the 
 late W. W. McFarland, who had a very deep theat- 
 
78 LANBMAEKS OF A LAWYER'S LIFETIME 
 
 rical voice, suited rather to a heavy tragedian than 
 to a court advocate, and who generally wore quite 
 liberal shirt-cuffs which fell about his hand, and 
 often made a gesture with a thrust of his closed 
 hand toward the Court, opening it as the thrust 
 terminated. This would bring his cuff forward on 
 his hand. One day he was arguing very earnestly, 
 indulging in this favourite gesture, his cuff protrud- 
 ing rapidly, when Judge Brady leaned over to Judge 
 Davis and remarked in a stage whisper, "You need 
 to be careful, Davis, or he will hit you with that 
 cuff," following it with one of his characteristic 
 manifestations of ill concealed merriment. 
 
 It was a fortunate thing for the City of New York 
 that Judge Noah Davis was elected a justice of the 
 Supreme Court in the fall of 1872. Like many of 
 the most able members of our bar, he came to New 
 York with a high reputation acquired in a country 
 practice, and with about ten years* service upon the 
 Supreme Court bench in the Eighth Judicial Dis- 
 trict. He brought to the bench wide experience, a 
 broad and comprehensive knowledge of the law, and 
 a dignified and forceful personality, which made him 
 the strongest and most eminent of our judges dur- 
 ing his entire term of service. Reference has al- 
 ready been made to his partnership association with 
 Judge Sanford E. Church in Albion, during the ex- 
 istence of which he was elected to the Supreme 
 Court of the Eighth District. While he was serv- 
 ing as such he was elected a member of Congress 
 from the district in which he resided, and, shortly 
 before the expiration of his term, he was induced 
 
NOTABLE APPELLATE JUSTICES 79 
 
 by Mr. Evarts to remove to the City of New York 
 and accept an appointment by the President as 
 United States Attorney for the Southern District 
 of New York. 
 
 I am quite sure from my acquaintance with him 
 that he had no expectation of re-entering judicial 
 life, but the Committee of Seventy, which had done 
 such good work in the fall of 1871, was still in exis- 
 tence, prepared to continue the efforts which had 
 been so successful. Among the gentlemen actively 
 interested in that movement was Mr. Dorman B. 
 Eaton. There was a vacancy to occur in the Su- 
 preme Court and three candidates were nominated, 
 two Democrats — one of them Mr. Henry H. Ander- 
 son, a prominent member of the bar — and Judge 
 Davis was nominated by the Republicans and en- 
 dorsed by the Committee of Seventy. He told me 
 that he had not been approached upon the subject 
 of a nomination and had no idea that his nomina- 
 tion was contemplated, and that the first intimation 
 of it was a note from Mr. Eaton, received immed- 
 iately after the nomination was made, in which he 
 said: "We have nominated you for justice of the 
 Supreme Court. All that we ask from you is that 
 you will not decline." As the reform movement ap- 
 peared to have somewhat spent its force he was by 
 no means confident of election, and he told me that 
 he felt so uncertain of the result that, happening to 
 meet Mr. Anderson shortly before the election, he 
 proposed to him that they should toss up a coin to 
 see which of them should withdraw in favour of the 
 other. Mr. Anderson responded, however, that he 
 
80 LAOT)MAEKS OF A LAWYER'S LIFETIME 
 
 felt that Ms own chances were better than those of 
 Judge Davis, and that they were not so nearly equal 
 as to induce him to do so. Judge Davis was tri- 
 umphantly elected. From the time that he assumed 
 his judgeship, he was the dominating personality on 
 the bench. 
 
 He was a man of great intellectual power, fine legal 
 attainments, of impressive dignity, somewhat austere 
 and severe in manner, and of strong prejudices and 
 predilections; yet withal he was perfectly fair and 
 reasonable; he was patient, attentive and careful; 
 he never acted hastily or through impulse, and upon 
 the bench he seemed to free himself from all the 
 prejudices and predilections which would interfere 
 with a sound and impartial judgment. He was a 
 rather remarkable combination of conflicting quali- 
 ties. With all his apparent severity and austerity, 
 he had a warm heart, a sympathetic nature, a keen 
 sense of humour, and a poetic gift in which he fre- 
 quently indulged to the delight of his friends. Very 
 rarely he would make some humorous comment on 
 the bench. An instance of this was when there was 
 before him the divorce case of Price against Price. 
 The question under consideration arose on an ap- 
 plication of the wife for alimony. She had been 
 unsuccessful in obtaining alimony in the court be- 
 low and the case having been argued. Judge Davia 
 proceeded to deliver an oral judgment, beginning 
 with a recapitulation of the facts, adding with a 
 slight twinkle of his eye, "and the result was that 
 she was turned out of court without money and 
 without Price." 
 
NOTABLE APPELLATE JUSTICES 81 
 
 Probably one of the most important and dramatic 
 trials that has ever taken place in the city of New 
 York was that of William M. Tweed. He was twice 
 tried. The first trial came on before Judge Davis 
 in January, 1873. A number of indictments had 
 been found against Tweed more than a year pre- 
 vious, but the trial had b«en postponed on various 
 pretexts until, to the public at large, it seemed that 
 it was altogether probable that they would not be 
 pressed. 
 
 After Judge Davis's election it soon became evi- 
 ent that the delays had been because the wise prose- 
 cutors of Tweed had been waiting until the People 
 had had an opportunity to elect a new Judge and a 
 new District Attorney, free from any suspicion of 
 influence on the part of Tweed. He was known to 
 be wealthy, and had retained for his defense some 
 of the most eminent members of the bar, including 
 David Dudley Field, John Graham, John E. Bur- 
 rill, William Fullerton, William 0. Bartlett, Elihu 
 Boot and Willard Bartlett. The people were rep- 
 resented by the new District Attorney, Benjamin 
 K. Phelps, and one of his assistants, Daniel G. Eol- 
 Hqs, with counsel specially retained, Lyman Tre- 
 main and Wheeler H. Peckham. Now, at last, this 
 notable case was to be tried, but the trial had a lame 
 and impotent conclusion after occupying three 
 weeks, for the jury reported that they were unable 
 to agree and were discharged. The prosecution, 
 however, immediately moved for a re-trial, but 
 Judge Davis doubted his legal right to extend the 
 term of the court, and the case having been post- 
 
82 LANDMARKS OP A LAWYER'S LIFETIME 
 
 poned, it was not until November, 1873, that the re- 
 trial was moved. 
 
 Judge Davis was again presiding over the branch 
 of the court where the trial was to take place. 
 Probably nothing more distasteful to Tweed, and 
 his counsel, could have occurred than to find Judge 
 Davis presiding. Tweed was represented by the 
 same counsel. Elihu Root and Willard Bartlett 
 were at this time young men in the first years of 
 their practice, but they had already begun to give 
 promise of the distinction which they subsequently 
 achieved. So distasteful was Judge Davis to 
 Tweed's counsel that they conceived the idea of pre- 
 senting to him the following paper, setting forth 
 reasons why he should not preside at the trial of the 
 case. 
 
 "The counsel for Wm. M. Tweed respectfully present 
 to the Court the following reasons why the trial of this de- 
 fendant should not be had before the Justice now holding 
 the court: 
 
 "First. The said Justice has formed, and upon a pre- 
 vious trial expressed, a most unqualified and decided 
 opinion, unfavourable to the defendant, upon the facts of 
 the case ; and he declined to charge the jury that they were 
 not to be influenced by such an expression of his opinion. 
 A trial by jury, influenced as it necessarily would be by the 
 opinion of the Justice, formed before such time, would be 
 had under bias and prejudice, and not by an impartial 
 jury, such as the constitution secured to the defendant. 
 
 "Second. Before the recent Act of the Legislature of 
 this State, providing that challenge to the favor shall be 
 tried by the Court, any person who had assumed a position 
 in reference to this case and this defendant, such as said 
 
NOTABLE APPELLATE JUSTICES 83 
 
 Justice had assumed, would have been disqualified to act 
 as trier. The defendant is no less entitled to a fair trial 
 of his challenge now than he was formerly. What would 
 have disqualified a trier, must disqualify a judge now. 
 
 "Third. Most of the important questions of law, which 
 wiU be involved in the trial, have already been decided by 
 the said Justice adversely to the defendant, and, upon some 
 important points, his rulings were, as we respectfully insist, 
 in opposition to previous decisions of other judges. 
 
 "Although there may be no positive prohibition of a 
 trial under these circumstances, it would be clearly a viola- 
 tion of the spirit of our present constitution, which pro- 
 hibits any judge from sitting in review of his own decision. 
 "The objection to a judge, who has already formed and 
 expressed an opinion upon the law, sitting in this case, is 
 more apparent from the fact that in many States, where 
 jurors are judges of law as well as facts, he would be 
 absolutely disqualified as a juror. 
 
 David Dddlet Field. J. E. Burrill. 
 
 John Graham. Elihu Boot. 
 
 "William Fdllerton. Willard Bartlett. 
 
 "William 0. Bartlett. "William Eggleston." 
 
 Upon its presentation, there was indeed a stirring 
 scene. Judge Davis was the last man to be trifled 
 with, or to be lectured upon what his duty was in the 
 business before him. He gave indications of great 
 surprise and indignation that any counsel, how- 
 ever eminent, should have dared to present such a 
 document to him, but his feelings were well sup- 
 pressed and his judicial dignity maintained, and, 
 while informing the counsel that the presentation 
 of the paper was a manifest impropriety, he, at the 
 same time, informed them that before taking any 
 
84 LANDMAEKS OF A LAWYER'S LIFETIME 
 
 action in regard to it he would consult his associates 
 as to the proper course to pursue. That he con- 
 ducted himself with admirable self-possession there 
 can be no doubt. He was certainly not a man who 
 could be intimidated. 
 
 He took no further action until the close of the 
 trial, when he informed Tweed's counsel that he 
 would proceed in the matter the following Monday 
 morning, and directed all the counsel who signed 
 the paper to attend. Accordingly, at the time des- 
 ignated, not only the counsel were in attendance 
 but the court room was packed with an audience 
 which included leading men of the bar and citizens 
 of prominence, to await the action of the Court upon 
 a matter which so deeply concerned the independ- 
 ence of the judiciary and the dignity of the court. 
 Judge Davis proceeded to state his views of the 
 paper in the following words : 
 
 "At the begimiing of this trial, I notified the counsel 
 for the defense that I should take some action upon a certain 
 paper which was handed me before the case opened. I 
 intended then, and I intend now, that that document shall 
 receive the notice that it deserves. 
 
 "I now fix the hour of ten o'clock on Monday morning 
 next when counsel for the defense must be present; at 
 which time I shall proceed to do what I deem proper in 
 the matter, and take such action as your proceeding de- 
 mands. You (and all of you who signed the paper) are 
 directed to attend on Monday morning." 
 
 Upon the adjourned day an explanation was at- 
 tempted, in reply to which Judge Davis stated that 
 if the paper had been submitted to him privately 
 
NOTABLE APPELLATE JUSTICES 85 
 
 he would not have considered it necessary to take 
 action concerning it, but that having been submitted 
 to him as presiding Justice of the Court of Oyer and 
 Terminer, it was incumbent upon him to do so. He 
 then proceeded to announce his decision which was 
 as follows: 
 
 "In expecting the case to be tried, counsel thought it 
 part of good tactics to prevent the judge, then sitting, from 
 presiding. It was an attempt, judging by signatures of 
 distinguished counsel, to intimidate the judge. The coun- 
 sel sought vainly for a precedent, and wiU fail in seeking, 
 here or in England, for a case of a tribunal or justice not 
 taking notice of a paper of such a character. If such a 
 paper were presented to an English judge by counsel, 
 clothed as the English judges are with powers which the 
 constitution withholds from our judges, not one of them 
 would be sitting here now, and not one of them would find 
 his name, one hour after, on the roU of counsel." (Ap- 
 plause in Court, which was promptly checked by the 
 judge.) 
 
 "As God is my judge, what I feel it my duty to do, I do, 
 not from personal motives, but from a solemn sense of duty 
 to the court, the bar, and above all, to the administration 
 of Justice. No lawyer is justified in any act, for the sake 
 of his client, which renders him amenable to the bar of his 
 own conscience, or tends to degrade the tribunal before 
 which he appears, or lessen respect for that official authority 
 on which so much depends for the preservation of our insti- 
 tutions. I must make the mark so deep and broad that all 
 members of the bar will know, hereafter, that aU such 
 efforts are open to censure and punishment by fine, as the 
 law permits. I fine WiUiam Fullerton, John Graham, 
 William 0. Bartlett, $250 each, and order that they stand 
 
86 LANDMARKS OP A LAWYER'S LIFETIME 
 
 committed until the fine is paid. Mr. Burrill's position 
 has already been explained, and Mr. Field is three thousand 
 miles away from the jurisdiction of the court. In respect 
 to the younger members of the bar, who have signed the 
 paper — Elihu Root, WiUard Bartlett, and William Bggles- 
 ton — I have this to say: I know how young lawyers are 
 apt to follow their seniors. Mr. Bggleston did not take 
 active part in the trial, and I do not speak of him. The 
 other two younger lawyers displayed great ability during 
 the trial. I shall impose no penalty, except what they may 
 find in these few words of advice : I ask you, young gen- 
 tlemen, to remember that good faith to a client never can 
 justify or require bad faith to your own consciences, and 
 that however good a thing it may be to be known as success- 
 ful and great lawyers, it is even a better thing, to be known 
 as honest men. Proper orders will be prepared by the 
 clerk and submitted to me. ' ' 
 
 This was what might have been expected from 
 Judge Davis, and by it he maintained the dignity of 
 the court and his own self respect. 
 
 The Tweed trials are matters of history and re- 
 sulted in Tweed's conviction. The conviction of 
 Tweed was upon an indictment containing several 
 counts charging separate and distinct misde- 
 meanors, identical in character, and Judge Davis, 
 in determining what sentence to pronounce, un- 
 doubtedly felt that the imposition of a sentence of 
 one year's imprisonment, and a fine of $250 as upon 
 a single misdemeanor, was entirely inadequate to 
 punish so great a rascal as Tweed, and in this I be- 
 lieve he was undoubtedly right. Tweed was found 
 guilty upon twelve separate counts of the indict- 
 ment and Judge Davis, therefore, pronounced a 
 
NOTABLE APPELLATE JUSTICES 87 
 
 cumulative sentence of one year's imprisonment 
 with a fine under each count of the indictment on 
 which he was convicted. Unfortunately, the Court 
 of Appeals took an adverse view of the legality of 
 this cumulative sentence, and decided that the ex- 
 tent of punishment which could be imposed was one 
 year's imprisonment, and a single fine of $250. 
 The conviction of Tweed was involved in great un- 
 certainty and, when accomplished, was regarded as 
 a tremendous triumph of justice. Its accompUsh- 
 ment was considered at the time as due largely to 
 the manner in which the trial was conducted by 
 Judge Davis, and his impressive charge to the jury. 
 
 Judge Davis was an admirable public speaker: 
 his personality and fine full voice lending great dig- 
 nity and charm to his thoughtful utterances, which 
 were always characterised by intellectual power. 
 His ability in this direction gave great force to his 
 charges to juries. Without being patronising, he 
 seemed to assume an air of fatherly interest, ap- 
 parently taking the jury into his confidence, giving 
 them, as a father would a son, the benefit of his wis- 
 dom and experience. The consequence was that 
 they rarely, if ever, disappointed him in the verdict 
 rendered. He was unusually quick to scent a fraud, 
 and when it was made apparent he dealt with it with 
 an iron hand. 
 
 He was particularly severe in cases of professional 
 misconduct. The first case of importance which I 
 argued was before him and his associates at the 
 general term of the Supreme Court. It involved in 
 certain of its aspects the relation of attorney and 
 
88 LAJSnOMARKS OF A LAWYER'S LIFETIME 
 
 client, and there was certainly sufficient evidence of 
 misconduct on the part of the attorney to justify 
 some action. The form of the action was not such 
 as to seek redress against the attorney, and no ac- 
 tion on the part of the court in that direction was 
 looked for. After the case had been argued and de- 
 cided, I happened, one day, to be in the court room 
 at the time of adjournment, and Judge Davis on 
 descending from the bench beckoned to me, and re- 
 quested me to put the facts which appeared in the 
 record respecting the attorney in the form of an 
 affidavit for presentation to the court. I explained 
 to Judge Davis that the attorney involved chanced 
 to be a boyhood acquaintance, and that personally 
 I would be reluctant to act as complainant against 
 him. "Oh," said Judge Davis, "that will not be 
 necessary; the Court will proceed on its own mo- 
 tion." I therefore complied with his request, and 
 the Court itself instituted proceedings, with the re- 
 sult that the attorney was subjected to severe re- 
 buke from the Court, and was only saved from dis- 
 barment by his youth and inexperience. 
 
 In another case which came before him, an at- 
 torney had been indicted for a criminal act in con- 
 nection, I think, with the satisfaction of a mortgage. 
 The case had, at the time, considerable publicity 
 and was strenuously defended by the attorney, who 
 claimed, to the last, absolute innocence. The case 
 against the attorney did not seem, from the reports 
 of it I read at the time, to be convincing, but with 
 Judge Davis' horror of professional misconduct, he 
 was led to submit the case to the jury under one of 
 
NOTABLE APPELLATE JUSTICES 89 
 
 Ms impressive charges, and a conviction ensued. 
 An appeal by the convicted lawyer was, of course, 
 contemplated, but the matter of procuring bail to 
 avoid imprisonment pending the appeal, was a mat- 
 ter of much difficulty. I noticed in one of the news- 
 papers an account of the case stating that when the 
 time for furnishing bail arrived, a most estimable 
 gentleman with whom I had considerable acquaint- 
 ance, Mr. William H. H. Moore, formerly a member 
 of the bar, but then a vice-president of the Atlantic 
 Mutual Insurance Company, appeared with the 
 prisoner and furnished the requisite bail. I sup- 
 posed the convicted lawyer was an acquaintance of 
 his whom he wished to befriend. Meeting Mr. 
 Moore a long time after, I referred to this incident, 
 when he informed me that the convicted lawyer was 
 so far from being a friend as not to be even an ac- 
 quaintance, but that from the accounts of the case 
 which he had read, he became satisfied in his own 
 mind that the lawyer had been unjustly convicted, 
 and that as there was difficulty in procuring bail, he 
 determined to go to his rescue. Consequently, un- 
 known to the prisoner and to his counsel, Mr. Moore 
 appeared before Judge Davis when bail was to be 
 furnished, and offered security which was accepted. 
 The lawyer was therefore freed from imprisonment 
 until his appeal could be heard, and when it was 
 heard and decided, the conviction was reversed and 
 the prisoner discharged. Of course. Judge Davis 
 acted upon his best judgment, and, in fact, it was 
 his duty to submit the case to the jury, no matter 
 how weak the evidence of guilt might be, if there 
 
90 LANDMARKS OF A LAWYER'S LIFETIME 
 
 was sufficient evidence in law to justify a convic- 
 tion. But I mention the incident because of the 
 noble-hearted action on the part of Mr. Moore, a 
 christian lawyer, of whom it might well be said, 
 ' ' I was in prison and ye visited me. ' ' 
 
 Soon after Judge Davis' term as justice of the 
 Supreme Court began, the term of Presiding Justice 
 Daniel P. Ingraham expired and Judge Davis was 
 appointed presiding justice in his stead. This posi- 
 tion he filled during the remainder of his term of 
 service. He was exceedingly useful, especially in 
 connection with much of the litigation which grew 
 out of the peculations of the Tweed ring. Enor- 
 mous claims were made against the city, and the 
 city was also seeking redress against individuals 
 who had participated in these peculations. He and 
 his associates, Justices John R. Brady and Charles 
 Daniels, rendered distinguished and valuable service 
 to the city government. This general term, as so 
 constituted, continued for many years, and was a 
 bulwark of justice which inspired the confidence of 
 the entire bar. At the expiration of his term. Judge 
 Davis retired from the bench, but his presence as 
 presiding justice will be long remembered, not only 
 by reason of his written opinions, but because of a 
 finely executed and life-like portrait, which has a 
 place in the court room of the Appellate Division of 
 the Supreme Court, presented by the members of the 
 bar. 
 
 At the time Judge Davis was appointed presiding 
 justice, Judge Charles Daniels of Buffalo was ap- 
 pointed associate justice. The General Term as 
 
NOTABLE APPELLATE JUSTICES 91 
 
 constituted with Judges Davis, Brady and Daniels 
 continued for many years until, I think, the expira- 
 tion of the term of Judge Davis which occurred De- 
 cember 31, 1885. 
 
 Judge Daniels' career was most honourable in 
 every respect ; he was one of the most painstaking, 
 conscientious and intelligent judges that I have ever 
 met. He was an intimate friend of Judge Davis, 
 one of his associates on the bench of the Supreme 
 Court in the Eighth Judicial District, and it was 
 through the latter 's instrumentality, that he was 
 designated by the governor to sit at the General 
 Term in the First Department. He was dignified, 
 patient, courteous and attentive as a judge and 
 simple, unpretentious, genial and warm-hearted in 
 social intercourse. He was deprived of early ad- 
 vantages and of a liberal education, and in early life 
 was apprenticed, I am informed, to the trade of 
 shoemaking, and worked at his trade while en- 
 deavouring to prepare by self-education for the 
 higher calling of the law. He went through many 
 hardships and much discouragement, but in due 
 time was admitted to the bar, where his unquestion- 
 able merit was recognised, and he was elected a jus- 
 tice of the Supreme Court. His opinions bear evi- 
 dence of great care in their preparation, and a crit- 
 ical and exhaustive examination of the law and facts 
 of each case. Although they are somewhat diffuse, 
 this, I think, was because of lack of early training 
 in composition and the cultivation of a concise form 
 of expression. 
 He was a great walker, and had evidently inured 
 
92 LANDMARKS OF A LAWYER'S LIFETIME 
 
 kimself in early days to the rigor of the severe 
 winter weather prevalent on Lake Erie, and to this 
 was probably due his disregard of heavy clothing 
 and high shoes. I would often see him pursuing 
 Ms way uptown on bitterly cold days without an 
 overcoat, and he habitually wore a low cut Oxford 
 shoe which exposed his ankles to the bitter winds 
 and often inclement weather, but his constitution 
 was most vigorous and his frame seemed to be of 
 iron. 
 
 He earned the respect and confidence of the 
 members of the bar who, through the action of the 
 Association of the Bar, on his retirement from the 
 General Term paid him a graceful and well deserved 
 tribute in the following words: 
 
 "Resolved that the Association takes pleasure in con- 
 veying to Judge Charles Daniels the assurance of the gen- 
 eral sentiment of the bar of the city of New York of its 
 grateftQ acknowledgment of the important services he has 
 rendered as a member of the General Term during the 
 period that he has been one of the associate judges j their 
 appreciation of the strict integrity, the conscientious fidel- 
 ity, and the marked ability with which he has discharged 
 the arduous duties of his position, and their cordial wishes 
 for his welfare and happiness in the futiu-e." 
 
 Upon the retirement of Judge Davis as presiding 
 justice at the expiration of his term of office, Jus- 
 tice Charles H. Van Brunt was designated by. the 
 governor to fill the vacancy. Justice Van Brunt 
 had a long and distinguished career upon the bench. 
 He was first appointed by Governor Hoffman, in 
 1869, to fill a vacancy in the Court of Common 
 
NOTABLE APPELLATE JUSTICES 93 
 
 Pleas, and was elected a judge of that court at the 
 ensuing election. His appointment by Governor 
 Hoffman was probably due to the fact that he was 
 connected with Governor Hoffman's law office in 
 New York. At the time of his appointment he was 
 comparatively unknown, and of very slender ex- 
 perience as a practitioner, but he had in him the mak- 
 ing of a most able and efficient judge. After serv- 
 ing a term in the Court of Common Pleas he was 
 elected a justice of the Supreme Court. 
 
 He served continuously upon the bench for about 
 thirty-six years with great distinction, and achieved 
 a high position in the judiciary. After serving in 
 the Court of Common Pleas for a few years he was 
 designated, under an act of the Legislature, to sit 
 temporarily in the Supreme Court in the hearing of 
 jury cases. No one who observed him could help 
 admiring his patient plodding industry, as year 
 after year he gave himself up entirely to his duties 
 in this direction. There was nothing in this em- 
 ployment to render him conspicuous, or bring him 
 much into public notice, and in devoting himself to 
 this service he gave up the opportunity of exhibit- 
 ing his capacity, and bringing himself into prom- 
 inence by written opinions; but he was laying the 
 foundation, deep and sure, for future service in ap- 
 pellate tribunals, and his subsequent value as pre- 
 siding justice of the Supreme Court was, I believe, 
 largely enhanced by his long experience as a trial 
 justice. As such he had few equals and no super- 
 ior. He was quick to apprehend the facts and the 
 law, forcible and clear in his charge to the jury, and 
 
94 LANDMARKS OF A LAWYER'S LIFETIME 
 
 he adopted the practice of ruling promptly and 
 without discussion upon questions of evidence, using 
 only a single word, either "sustained" or "over- 
 ruled," which meant a great saving of time in the 
 despatch of business. While this method involved 
 the risk of serious error, perhaps it was no more 
 serious than is usually the case after discussions of 
 questions, and when he erred, his error had the 
 merit of being unmistakable. But with the exper- 
 ience which he acquired, in a short time, his rul- 
 ings were almost invariably correct. Besides this, 
 he had such a dominating personality that no one 
 would ever dream of taking any liberties with him, 
 or engage in controversies with the opposing coun- 
 sel which, too often, before weak judges, mark the 
 progress of a trial. 
 
 His personal appearance indicated a very strong 
 and rugged character. His face was one of those 
 impressive and strongly marked countenances 
 which needed but a glance to indicate a powerful 
 personality. His large head, short and thick neck, 
 and his ponderous frame presented a very impres- 
 sive appearance, notwithstanding his moderate 
 stature. He had a deep loud voice, and his manner 
 was brusque, and, at times, it seemed almost rude 
 and unfeeling toward counsel. He was one of the 
 most forceful and strong willed men that I have 
 ever known. In his demeanour there was apparent 
 disregard of conventionality, and his whole attitude 
 was that of fearlessness and independence, with an 
 absence of the amenities of life which, at times, have 
 made association with him somewhat difficult. But 
 
NOTABLE APPELLATE JUSTICES 95 
 
 these things, after all, were on the surface, and be- 
 neath there was much in Judge Van Brunt that was 
 genial, kindly and attractive. Those who suffered 
 under his rougher manifestations had, in most in- 
 stances, themselves to blame. They were those who 
 wasted his time, tried his patience, or gave him lit- 
 tle credit for intelligence, and to these he was un- 
 doubtedly severe and at times harsh. But during 
 the many years, and on the many occasions, when I 
 have tried cases and argued appeals before Judge 
 Van Brunt, I think I may say that I could not have 
 asked for a more patient, intelligent or considerate 
 judge. 
 
 At the time he assumed his duties as presiding 
 justice of the Supreme Court, he had not only be- 
 come unusually well equipped as a lawyer, but he 
 possessed administrative ability of a high order. 
 As a presiding justice he was remarkably efficient. 
 He permitted no time to be wasted; he extended the 
 sessions of the court; he made rules for the or- 
 derly administration of justice, and to prevent the 
 altogether too numerous applications for postpone- 
 ments and, as a result, the calendars which had 
 fallen into arrears were brought up to date, alid the 
 delays formerly attendant upon appeals from judg- 
 ments were entirely removed. He presided with 
 perfect dignity, and he conducted the business of 
 the court not only with entire fairness, but in his 
 written opinions he displayed all the characteris- 
 tics of a well stored, clear, and vigorous intellect. 
 He was an excellent listener; he rarely interrupted 
 counsel, and then only to prevent a waste of time. 
 
96 LANDMARKS OP A LAWYER'S LIFETIME 
 
 by some well-directed query which touched the mar- 
 row of the case. Instead of manifesting impatience, 
 I have often wondered, as I sat in the court room 
 awaiting the call of a case, at the patient attention 
 he gave for a long time after the Court was evi- 
 dently in full possession of the questions involved 
 in the case under argument. 
 
 Under the revision of the constitution which took 
 effect in 1896, a very great change was effected by 
 the consolidation of the Superior Court of the City 
 of New York and the Court of Common Pleas with 
 the Supreme Court. The Superior Court and the 
 Court of Common Pleas were thereby abolished, 
 together with their independent systems and ma.- 
 chinery for the exercise of their separate jurisdic- 
 tions, and the judges of those courts were created 
 justices of the Supreme Court during the remainder 
 of their terms, and the jurisdiction of those courts 
 was vested in the Supreme Court. This was a most 
 useful reform in the administration of justice. It 
 remedied abuses which had grown out of the exer- 
 cise by separate courts in the city of New York of 
 practically concurrent jurisdiction, which had often 
 resulted in a conflict of jurisdiction, and subjected 
 litigants and lawyers to embarrassment. While, 
 at the time, this consolidation met with great op- 
 position from some of the judges and a portion of 
 the bar, the benefits to be derived from it soon be- 
 came manifest and few, if any, could be found of 
 those who practiced under the old system of sep- 
 arate courts who would be willing to return to it. 
 
 This revision of the constitution accomplished 
 
NOTABLE APPELLATE JUSTICES 97 
 
 another important change under which, in place of 
 the General Term of the Supreme Court, there were 
 created the Appellate Divisions as they now exist 
 with five judges sitting. Judge Van Brunt, hav- 
 ing been designated as presiding justice on the re- 
 tirement of Judge Davis, was quite naturally des- 
 ignated as the presiding justice of the Appellate 
 Division in the First Department. The assump- 
 tion of gowns by the justices brought them an 
 added dignity and under Judge Van Brunt's leader- 
 ship, the court took, and has ever since maintained, 
 a high position among the courts of the State. He 
 regulated its procedure, and established rules for 
 its guidance, which dispatched the business with the 
 least possible delay, and the work of the court in its 
 written opinions has won the respect and admira- 
 tion of the bar. The supervision of the special and 
 trial terms, which was conferred upon the Appellate 
 Division by the constitution, enabled Judge Van 
 Brunt and his associates to regulate and control 
 the inferior branches of the court in such a man- 
 ner as to render the disposition of trials more ex- 
 peditious and orderly, and his remarkable capacity 
 as an administrator was manifest in every branch 
 of the court. 
 
 He also introduced a reform which obviated the 
 great delays in hearing appeals, as well as the ac- 
 cumulation of business in court, by devising a plan, 
 and promulgating a rule of the Court, requiring the 
 briefs of counsel to be filed and copies to be served 
 in advance of the hearing of the case, under the pen^ 
 alty of a dismissal of the appeal, or an affirmance 
 
98 LANDMARKS OF A LAWYER'S LIFETIME 
 
 of the judgment appealed from. This step at once 
 did away with a fruitful source of applications for 
 postponements of hearings founded upon excuses, 
 good or bad, for failures to have the briefs in readi- 
 ness for presentation to the Court when the case 
 was called. This reform has been so effective that 
 the applications referred to which were so numer- 
 ous, have now disappeared almost entirely, and un- 
 der the rule adopted, counsel for each party has ,an 
 effective remedy against the other for a failure to 
 serve his brief, of which advantage is sure to be 
 taken. One of the great merits of this reform is 
 that each counsel now knows in advance what argu- 
 ment his adversary will urge, and the Court is in 
 possession of all that either counsel can suggest, 
 and surprises to the counsel and the Court are thus 
 avoided. The plan has worked so successfully that 
 it was subsequently put in operation in the Court 
 of Appeals, and several of its features have been 
 adopted by the Supreme Court of the United States. 
 It is not too much to say that he left a powerful 
 impress upon the administration of justice by the 
 Supreme Court in this district which will be felt 
 for years to come. I was told by the late Judge 
 Edward Patterson that one could not form a cor- 
 rect estimate of the value of Judge Van Brunt from 
 merely seeing him in court and reading his writ- 
 ten opinions, without an opportunity to observe his 
 characteristics in the more important work of the 
 court in the consultation room. Here, he said. 
 Judge Van Brunt was at his best. His mind was so 
 strong and so fertile in suggestions, and his exper- 
 
NOTABLE APPELLATE JUSTICES 99 
 
 ience was so great, that to Mm it was due, more than 
 to any other, that the correct solution of difficult 
 and complicated situations was due, and he added 
 that in the consultations of the justices following 
 Judge Van Brunt's death, his absence was felt so 
 keenly that they were "like the council without Aga- 
 memnon." For nearly twenty years Judge Van 
 Brunt occupied the distinguished position of pre- 
 siding justice of the Supreme Court in the First 
 Department, and in all fine qualities that go to 
 make up a great judge, he was, I believe, without a 
 peer. 
 
 Among the associate judges designated with Pre- 
 siding Justice Van Brunt, to constitute the Appel- 
 late Division, there were two before whom as trial 
 justices, I often appeared, and with whom my rela- 
 tions were most cordial. One of these was Justice 
 George C. Barrett, and he was among the few very 
 attractive judges who have come under my observa- 
 tion. I first saw him on the bench of the Court of 
 Common Pleas when I was a law student. He was 
 then about thirty-one years of age. He had been 
 elected judge of the Sixth District Court at the early 
 age of twenty-five years, and a judge of the Court of 
 Common Pleas in 1867, when scarcely thirty, and 
 was elected a justice of the Supreme Court in the 
 Fall of 1871. In this position he continued until 
 1906, which covered a judicial experience of over 
 forty years. 
 
 In the short interval between Judge Barrett's 
 retirement from the Court of Common Pleas by 
 resignation, and his election to the Supreme Court, 
 
100 LANDMARKS OF A LAWYER'S LIFETIME 
 
 he was actively engaged in practice. At this time 
 revelations of the corruption of the Tweed ring, 
 through the columns of the New York Times, 
 aroused the citizens of New York generally to the 
 financial dangers which threatened the city from 
 the tremendous extravagances of the ring, and the 
 misappropriations of which it had heen guilty. This 
 led to the beginning of a prosecution, in which Judge 
 Barrett was retained, having for its object the ob- 
 taining of an injunction to restrain public officials in 
 the expenditure of public money. Judge Barrett, 
 with a boldness and courage which cannot be too 
 highly commended, appeared in court on an ex parte 
 application for an injunction, before Judge George 
 Gt. Barnard, from whom, as an adherent of the 
 Tweed regime, little could be expected. Judge Bar- 
 rett stated the facts with an aggressiveness and 
 boldness that was significant, undoubtedly suppos- 
 ing that Judge Barnard would not regard his appli- 
 cation favourably unless the terrors of the law 
 persuaded him and, therefore. Judge Barrett was 
 the more aggressive in his disclosure of the facts and 
 in his attitude before the judge, knowing that the 
 matter could not fail to have great publicity and 
 that if the injunction were refused it would leave 
 Judge Barnard in a very embarrassing situation. 
 The result of the application was that Judge Bar- 
 nard, without hesitation, granted the injunction, and 
 he never modified it, except in some minor particu- 
 lars so as to allow payments to employes of the 
 city government and other proper expenditures. 
 At this time was beginning a genuine popular up- 
 
NOTABLE APPELLATE JUSTIC^" ( i^ 
 
 1914 
 
 rising to redeem the city from the control ^fweed^ 
 and Ms adherents, and one of the most po^i^ 
 agencies in that direction was an organisation of 
 prominent citizens known as the "Committee of 
 Seventy." In cooperation with this committee the 
 young men of the city organised what was known as 
 the Young Men's Municipal Eeform Association, 
 and of this Judge Barrett was elected chairman. 
 His prominence in the movement, and the political 
 management of his uncle, "William C. Barrett, led to 
 his nomination for justice of the Supreme Court by 
 what was known as the Apollo Hall Democracy, that 
 name beiag adopted from the name of the hall in 
 which that particular wing of the Democrats assem- 
 bled, in contra-distinction to the Tammany Hall 
 Democracy. This was followed, quite naturally, by 
 his endorsement by the Committee of Seventy, inas- 
 much as he not only represented that type of the 
 Democracy opposed to Tammany, but was chairman 
 of The Young Men's Association. Tammany Hall 
 nominated as his opponent Thomas A. Ledwith, a 
 justice of one of the district courts, and entirely 
 unfit to become a justice of the Supreme Court. 
 This great movement for municipal reform resulted, 
 as is well known, in the complete overthrow of the 
 Tweed ring, and Judge Barrett's election by a ma- 
 jority of about one hundred thousand votes. 
 
 He proved to be, in my estimation, one of the best 
 judges that have occupied seats on the Supreme 
 Court bench. I appeared before him constantly dur- 
 ing the twenty-four years before he became a mem- 
 ber of the Appellate Division, and used to meet Mm 
 
102 LANDMARKS OP A LAWYER'S LIFETIME 
 
 quite often in social intercourse. He was a man of 
 innate refinement and courtesy, and I never knew 
 him to appear otherwise, either on the bench or off. 
 His whole appearance was indicative of a sensitive, 
 well-bred and cultured gentleman. His physique 
 was slight ; he was small of stature ; he had a remark- 
 ably refined and expressive countenance, and a 
 graceful and dignified bearing. He was distin- 
 guished, I think, for the polish of his manner, and 
 the evidence he gave of intellectual culture. He was 
 indeed intellectually cultured. He had read much, 
 and his mind was stored with literature of a high 
 class. He indulged at times in literary effort, occa- 
 sionally as a poet, and in one instance at least, he 
 was the author of a play. He was not much given 
 to general social intercourse, but among those he ad- 
 mitted to his intimacy he was charming as a brilliant 
 and witty conversationalist, and a devoted and loyal 
 friend. 
 
 I have never met with a more perfect model of a 
 judge in his manner of presiding over a court than 
 Judge Barrett. He was always a gentleman. He 
 possessed dignity, courtesy and the capacity to sub- 
 due unruly and turbulent elements and, as a conse- 
 quence, proceedings in his court room were entirely 
 orderly, and conducted in a manner befitting a court 
 of justice. He never raised his voice in rebuke or 
 expostulation, and his utterances were always in well 
 modulated and courteous tones that produced an im- 
 mediate subduing effect. The fact is that one could 
 not do otherwise with Judge Barrett than endeavour 
 to be well-behaved. He had a remarkablv keen, sub- 
 
NOTABLE APPELLATE JUSTICES 103 
 
 tie and penetrating intellect. He grasped the point 
 of an argument at once. He needed less argument 
 to convince him than almost any judge I have known. 
 He was either convinced at once by the statement of 
 a case or legal proposition, or else he could rarely be 
 convinced at all. There was no mental hesitation or 
 questioning ; there was no indecision and veering one 
 way and the other; he saw the point and his mind 
 seemed to be made up at once. 
 
 His conduct of jury trials were manifestations of 
 a high order of judicial ability to control the pro- 
 gress of things, and to mould the verdict of jurors. 
 It is said to have been the boast of a great English 
 judge that he never lost but one verdict. This was 
 due to his strong prepossessions as to what the ver- 
 dict shoidd be, and his power to induce the jury to 
 adopt the same view. Judge Barrett, I think, pos- 
 sessed somewhat those characteristics. He was 
 what would be described as a verdict-getting judge. 
 At the conclusion of a trial he seemed to have well- 
 defined views as to what the verdict should be, and 
 he exerted his influence, justly and impartially, to 
 see that there was no miscarriage of justice. Unlike 
 most judges, who seem to drift along with a trial 
 instead of controlling it, and deliver charges that are 
 so colourless that they are of little aid to a jury in 
 solving at times complicated questions of fact, he 
 pointed out unmistakably, and with great clearness 
 and force the rules of law to guide the jury, and 
 then explained their application to the facts, which 
 he marshalled with very great skill. There were 
 probably very few cases in which the verdict did not 
 
104 LANDMARKS OP A LAWYER'S LIFETIME 
 
 express Ms own conviction, and in cases where it 
 did not, he was bold and fearless in setting the ver- 
 dict aside. 
 
 He was perfectly patient; he paid strict atten- 
 tion; he acquired complete possession of the facts 
 and the law, and his charges to jurors were lucid and 
 convincing. This was due, I think, to his remarkable 
 ability to put facts and arguments in such a way as 
 to enable them to be grasped readily by the average 
 intellect. In his charges, he exhibited mannerisms, 
 and indulged in gestures, and vocal inflections, 
 which although incapable of reproduction in a 
 printed record, would produce a very decided effect 
 on juries. These were the despair of counsel with a 
 doubtful case, but the delight of those whose causes 
 commended themselves to him. 
 
 I recall an incident related by John M. Scribner, 
 most experienced and able in the defence of cases of 
 personal injuries through negligence, who happened 
 to be defending a railroad company whose car had 
 run over a child of tender years playing in the 
 street. Mr. Scribner had tried the case with great 
 skill and argued it effectively to the jury, upon the 
 theory that the child should not have been permitted 
 to play alone and unattended in a public thorough- 
 fare, and that consequently there was contributory 
 negligence. He had evidently made an impression 
 on the jury and felt that they were inclined to adopt 
 his view of the case. But he had reckoned without 
 Judge Barrett's charge. His way of shrugging his 
 shoulders slightly, or of using some taking gesture, 
 or of giving expression and emphasis, while unex- 
 
NOTABLE APPELLATE JUSTICES 105 
 
 ceptionable in itself, would produce an effect which, 
 would not be in any way apparent from the language 
 of the charge when it subsequently appeared in the 
 printed record of the case. In this particular in- 
 stance, when, in the course of his charge he reached 
 a discussion of the facts, he called attention to Mr. 
 Scribner's argument that a child of tender years 
 should not be left alone and unattended in public 
 streets. He remarked that as a general legal propo- 
 sition this was undoubtedly true, but that it was to 
 be applied in view of all the facts and circumstances ; 
 that the streets were public thoroughfares ; that chil- 
 dren had a right to use them; that reasonable care 
 required that the parents should only do their best, 
 and that it was not to be expected of people in hum- 
 ble circumstances that their children should at all 
 times be accompanied by a French nurse. This little 
 word "French," introduced with just a little em- 
 phasis, just a deprecatory smile, a wave of the 
 hand, and slight shrug of the shoulder, was sufficient, 
 as Mr. Scribner said, to demolish the force of his 
 argument and, from the moment of its utterance, 
 there could be no doubt what the verdict would be. 
 He had such great perception and penetration that 
 it was useless to attempt to mislead or impose upon 
 him by specious or unsound argument, or by the cita- 
 tion of authorities which were not directly in point. 
 He would enter into no discussion. He would not 
 waste time by attempting to expose fallacies, but in 
 a single, well-directed phrase, he would demolish the 
 argument, and brush the matter aside, leaving noth- 
 ing more to be said. 
 
106 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Judge Barrett, in tke twenty-five years of Ms ex- 
 perience in the Supreme Court, before Ms appoint- 
 ment to the Appellate Division, presided at a large 
 number of very notable trials. He was recognised 
 as peculiarly well fitted to deal with important crim- 
 inal cases. He presided at the second trial of Eieh- 
 ard Croker for murder. At the first trial the jury 
 disagreed, and at the second he was acquitted. In 
 connection with this a prominent justice of the Su- 
 preme Court related to me an incident connected 
 with the occasion of Judge Barrett's re-nomination 
 for justice of the Supreme Court in 1885. At that 
 time Richard Croker was "boss" in Tammany Hall. 
 It was necessary to obtain his imprimatur, and, ac- 
 cordingly, Judge Barrett being a Democrat, it was 
 expedient for him to secure Mr. Croker 's support. 
 One of Judge Barrett's associates on the bench ar- 
 ranged an interview between them and with Judge 
 Barrett called on Mr. Croker. The first remark 
 made by Judge Barrett was: "Mr. Croker, I am 
 glad to see you, I have not met you since you were 
 tried before me." His brother Justice was over- 
 whelmed by the bluntness of his utterance, and won- 
 dered how Judge Barrett could have said it, but he 
 soon realised that this was his extraordinary way 
 to remind Mr. Croker of the great personal service 
 rendered him in presenting the case to the jury in 
 such a manner as to justify an acquittal, and he 
 added that within the next five minutes they were 
 enfolding each other in loving embrace. It is un- 
 doubtedly true that for a number of years after 
 Judge Barrett's re-nomination and re-election there 
 
NOTABLE APPELLATE JUSTICES 107 
 
 were few wlio had greater influence than he with 
 Mr. Croker. 
 
 It was Judge Barrett who presided at the trial 
 of Alderman Jaehne for receiving a bribe. The par- 
 ticulars of the incident are related elsewhere. He 
 also presided at the trial of Jacob Sharp who was 
 tried for bribery in connection with obtaining the 
 privilege of constructing the Broadway surface 
 road. He it was who presided at the trial of Ferdi- 
 nand Ward in connection with the operations of the 
 firm of Grant & Ward, which involved General 
 Grant to some extent. It is perfectly true that no 
 other judge, during Judge Barrett's term of office, 
 presided over so many trials of public interest. 
 
 After his appointment to the Appellate Division 
 his work was confined to delivering written opinions, 
 and they afford abundant evidence of great legal at- 
 tainments, and a capacity for logical processes and 
 power of reasoning unexcelled, if equalled, by any 
 of his associates. 
 
 Justice Edward Patterson was the other justice of 
 the Appellate Division with whom my relations were 
 particularly informal and delightful. He was a 
 friend of many years' standing, and there was no 
 one in my range of acquaintance with whom inter- 
 course was more agreeable. We met in the early 
 days of my practice as antagonists in an insurance 
 case, and from that time forward we became excel- 
 lent friends. He belonged to one of the fine old 
 Philadelphia families of Irish descent, and he had 
 inherited those genuinely characteristic qualities 
 of the Irish, heartiness, generous impulses, a sincere 
 
108 LANDMARKS OF A LAWYER'S LIFETIME 
 
 sympathy, good humour, conversational gifts, and 
 loyalty to friends. He was always lovable; he 
 aroused no antagonism ; he was considerate, amiable 
 and courteous, and he was one of the most popular 
 judges whom I have known. It was like a ray of 
 sunshine to have Edward Patterson cross one's path. 
 He was simple, unostentatious, democratic and 
 friendly, and unlike a great many lawyers who be- 
 fore ascending the bench are genial and warmhearted 
 companions, but after ascending it surround them- 
 selves with the chill atmosphere of judicial dignity, 
 Judge Patterson was the same unaffected, genuine, 
 informal, and whole-souled personality that he had 
 always been. While on the bench he had the judicial 
 manner in perfection; off it he was the rollicking, 
 good-humoured, and kindly boon-companion. 
 
 Judge Patterson's bearing was quite aristocratic 
 and his fine expressive countenance was indicative of 
 his high birth and good breeding. There was a pecu- 
 liar charm in his demeanour, which was of a true 
 courtesy, and his greetings and partings were always 
 accompanied by a graceful bow, and a warm and 
 hearty salutation. He was one of the best read men 
 I have ever known. He had more out-of-the-way 
 knowledge than anyone of my acquaintance. He had 
 read exhaustively in the literature of the law, and 
 from such works as Howell's State Trials he would 
 furnish a large amount of most interesting incidents 
 in elucidation of legal discussions, while in general 
 literature he was so well-informed, and had so per- 
 fect a command, that he was delightful and instruct- 
 ive, particularly in conversations at informal gather- 
 
NOTABLE APPELLATE JUSTICES 109 
 
 ings of ladies and gentlemen. For the ladies he un- 
 deniably possessed a very great attraction by reason 
 of his literary culture. 
 
 Judge Patterson was essentially a city man. I am 
 under the impression that he did not care very much 
 for country life, and athletic sports had for him no 
 attraction. He liked the life of the city; he enjoyed 
 the amusements, theatrical and literary, which it af- 
 forded, and club life at the Century, where for many 
 years he used to spend a portion of his evenings 
 around the billiard table, with his friend, Mr. Fred- 
 erick E. Coudert, until his death, and afterward with 
 others of the same type. Here he was in his element 
 with men of high attainments, wide culture and gen- 
 ial disposition. He was very temperate, and al- 
 though cheering beverages were wont not only to cir- 
 culate but, if too freely employed, might inebriate, I 
 never knew him to indulge in them, and I think his 
 invariable rule with respect to them was strict ab- 
 stinence. He in no sense depended on artificial stim- 
 ulants for exuberance and geniality, for these char- 
 acteristics were his natural possessions. 
 
 In 1884 it so happpened that Judge Patterson and 
 I were rival candidates for judge of the Court of 
 Common Pleas, he with two others on the County 
 Democracy ticket; I, with two others, on the repub- 
 lican ticket and three other candidates on the Tam- 
 many Hall ticket. This was at the time of Mr. 
 Cleveland's first election to the presidency, and while 
 the republican ticket was supposed to have not much 
 of a chance, as proved to be the case, the two rival 
 Democratic organisations were thought to be nearly 
 
110 LANDMARKS OP A LAWYER'S LIFETIME 
 
 equally divided, which proved to be correct. It 
 turned out that two of the Tammany candidates — 
 Judge Joseph F. Daly and Judge Larremore — were 
 elected by a substantial majority; the race was very 
 close between Henry Wilder Allen, who had been 
 serving by appointment, and was seeking election, 
 and Mr. Patterson as he then was, both of them on 
 the County Democracy ticket. It was generally sup- 
 posed that Mr. Patterson was elected, and the result 
 was for a long time in djoubt. I have always believed 
 that Mr. Patterson was elected and that the count 
 was manipulated so as to elect Judge Allen. The 
 final count, however, elected Judge Allen by a ma- 
 jority of only 93 votes. This was a great disappoint- 
 ment to Judge Patterson and to all of his friends. 
 In 1885 there was another triangular contest in 
 which Judge Patterson was again nominated by the 
 County Democracy, Judge Henry W. Bookstaver 
 was nominated by Tammany Hall and I was nomin- 
 ated by the Republicans. Again poor Judge Patter- 
 son went down with me to defeat and came out at the 
 foot of the poll. Judge Bookstaver being elected by a 
 majority of 1,800 votes. In 1886, however, he was 
 successful, receiving the combined nominations of 
 Tammany and the County Democracy, who had bur- 
 ied their differences, and he was elected Justice of 
 the Supreme Court. Unlike most of our judges, he 
 was thoroughly equipped for the position by long 
 experience in active practice at the bar. All of his 
 friends predicted for him a successful career as a 
 judge, and in this they were not mistaken. He pos- 
 sessed an accurate knowledge of legal principles and 
 
NOTABLE APPELLATE JUSTICES 111 
 
 adjudged cases, was entirely familiar with the rules 
 of practice, and with all that pertained to legal con- 
 troversies. He was fair, patient, courteous and con- 
 siderate. He was intelligent, practical and ready in 
 the disposition of business. His mind was alert, 
 keen and appreciative, and in his charges to juries 
 his diction was simple, clear and forcible, and he had 
 the gift of arraying the facts and stating the rules 
 of law so simply as to give a jury of average intelli- 
 gence a correct appreciation of the questions in- 
 volved. In his disposition of equity cases and of 
 motions he was painstaking and accurate, and his 
 written opinions were brief and to the point. When 
 the Appellate Division was organised in 1896 he was 
 designated as one of the associate justices and the 
 first 135 volumes of the Appellate Division Reports 
 furnish abundant evidence of his industry and ability 
 as an Appellate judge. There was probably no mem- 
 ber of that court who was his equal in facility of 
 expression and choice diction, and his opinions read 
 better, I think, than those of any other of the judges. 
 Upon the death of Judge Van Brunt and after a 
 short service by Judge Morgan J. O'Brien as Pre- 
 siding Judge, Judge Patterson was appointed to that 
 position, holding it until his death. In the latter 
 part of his life he had a terrible aflSiction, necessitat- 
 ing severe operations which seriously affected the 
 muscles of his face and his vocal chords, and which 
 was not only a source of pain but peculiarly distress- 
 ing to such a buoyant, sociable and companionable 
 person as himself. This aflaiction brought out other 
 qualities compelling the admiration of his friends. 
 
112 LANDMARKS OF A LAWYER'S LIFETIME 
 
 His patience, fortitude, courage and hopefulness 
 were marked characteristics of his later years, and 
 instead of being borne down by his affliction, he rose 
 superior to it and, notwithstanding his manifest in- 
 firmities, he was cheerful and companionable as of 
 old, industriously bearing his part with efficiency in 
 the high office which he filled so acceptably and with 
 such great distinction. 
 
CHAPTER IV 
 
 SOME JUDICIAL PERSONAGES AND CHARACTERISTICS 
 
 The evanescence of the lawyer's fame has been 
 commented on so frequently that it has become a 
 truism. Of course, there are a few exceptions where 
 great names loom up whenever bygone years of the 
 law are mentioned, but, generally speaking, lawyers ' 
 names are, as Keats said of his own, "writ in water." 
 And yet not quite so bad as that, for whether judges 
 or practitioners, as they pass on into the beyond, 
 their careers may be fairly well traced by the appear- 
 ance of their names in the volumes of reports, either 
 as authors of opinions, or as counsel for one of the 
 parties. It is, at least, some satisfaction to the use- 
 ful judge and the successful advocate to know that 
 although he may have disappeared, the path he has 
 pursued over the field of the law bears the imprint of 
 his footsteps. 
 
 The title ' ' Judge ' ' has come to be quite as common 
 as the title "Colonel," of which it is related that 
 when a wag-of-a-passenger on a departing steamer 
 shouted out to the crowd on the pier: "Good-bye, 
 Colonel," half a hundred manly voices shouted back: 
 ' ' Good-bye, Judge. ' ' 
 
 Very many lawyers dearly love to be called 
 ' ' Judge, ' ' when their sole claim to the title is that at 
 one time or another they have been nominated by 
 
 113 
 
114 LANDMAEKS OF A LAWYER'S LIFETIME 
 
 way of compliment by some political party in a hope- 
 less minority, or, with more show of reason, have 
 occupied some petty judicial position in an obscure 
 locality in some far-distant State, and appear at 
 our bar as "ex-judge so and so." This weakness 
 was illustrated by an illiterate individual who de- 
 sired to be elected a justice of the peace so that he 
 might be called "Judge." On being elected he 
 sought in the seclusion of his barn an empty barrel, 
 and placing his head within shouted in a loud voice, 
 "Judge," that he might hear how it would sound. 
 This enables us to understand more readily, per- 
 haps, the pardonable pride of a fond Jewish father 
 of Essex Street, who remarked of his son that had 
 been elected to a petty Judgeship : "Ikey has shust 
 been elected shudge, and now he is going to vear the 
 shudicial vermin." This weakness, if it is such, ap- 
 pears in a letter of no less an individual than Chief 
 Justice Fuller to a friend, upon his confirmation as 
 Chief Justice of the United States, in which he re- 
 marked in substance. "Hereafter my friends will 
 be at liberty to call me 'Judge.' " But the insuper- 
 able disadvantage, to my mind, in being hailed by 
 this title is that, unless the claim to it is perfectly 
 well founded, any encouragement, or even tacit per- 
 mission of its use savours of false pretences, and how 
 great must be the mortification of its recipient when 
 asked: "What judicial position did you fill?" to be 
 compelled to respond : "I was never really a judge, 
 but I was nominated once upon a time, and defeated. ' ' 
 A great throng of judges of varying degrees of 
 excellence has wielded the gavel during the past forty 
 
SOME JUDICIAL PBESONAGBS 115 
 
 years ; some of them bom to the ermine, and others 
 cast upon the bench by the fickle waves of political 
 favour, only to be submerged again in a well-merited 
 obscurity. 
 
 Sometimes judicial dignity is accompanied by an 
 impressive friendliness, which may be illustrated by 
 the remark of one of the judges of the old Court of 
 Appeals concerning an associate on the bench who 
 possessed this characteristic, that "Judge Blank's 
 friendliness was so overwhelming you could hear him 
 shake hands across the street." A story was told of 
 this same judge, who was a devout attendant on the 
 Episcopal Church and joined in the service in rather 
 a loud and impressive voice. During the recital of 
 the Apostles' Creed he would "lag superfluous," a 
 little after the rest of the congregation. One of his 
 former associates on the bench accosted him at the 
 close of the morning service and remarked sotto voce, 
 but in a way that everyone could hear: "Judge 
 Blank, when you recite the Apostles' Creed, I wish 
 you would 'descend into hell' with the rest of the 
 congregation. ' ' 
 
 Upon the retirement of Judge Blank from the 
 bench he did not seem to receive that appreciation of 
 his attainments and ability which is evidenced by 
 frequent retainers in important matters. He culti- 
 vated the friendship of practitioners in a manner 
 likely to repel rather than attract, and whenever he 
 did secure a retainer he exhibited gratitude effu- 
 sively. In one case when a member of the bar came 
 to him with a check for the amount of his retainer, 
 he exhibited so much satisfaction and pleasure that 
 
116 LANDMARKS OF A LAWYER'S LIFETIME 
 
 lie gave it expression by grasping both, hands of the 
 attorney and came dangerously near osculation, ex- 
 claiming: "Mr. Blank, you are a perfect gentle- 
 man." 
 
 One of the most noteworthy features of elevation 
 to a judgeship is the change which takes place in its 
 recipient in his relations with his associates at the 
 bar. He may have been a very ordinary lawyer, but 
 being in the possession of the high sounding titles, 
 "Judge" and "Your Honor," and the "judicial dig- 
 nity" which accompanies them, they seem to remove 
 him, in his conception, from free and unrestrained 
 intercourse with his former associates and place him 
 in a sphere apart from his fellows of the pre-judicial 
 days. 
 
 Perhaps this is due in part to the fact that in a 
 large city like New York, the judge is hedged about 
 by necessary forms and ceremonies and is not ordin- 
 arily accessible, and that he rarely comes in contact 
 with his professional brethren, except at morie or less 
 formal functions. 
 
 In the country districts free and unrestrained in- 
 tercourse and easy familiarity still exist to some ex- 
 tent, but the relation between the bench and bar in 
 the past, as illustrated in the case of Judge David 
 Davis and President Lincoln, has disappeared. 
 They were constantly thrown together out of court, 
 sometimes occupying the same room, and Judge 
 Davis never tired of hearing Mr. Lincoln's stories as 
 they sat about the common stove of the country tav- 
 ern. This seclusion, and the "judicial dignity" 
 which judges seem to think it necessary to display off 
 
SOME JUDICIAL PERSONAGES 117 
 
 as well as on the bench, and to assume an attitude of 
 mental superiority as well as a kind of mastery, as 
 though lawyers were troublesome inferiors that re- 
 quired the exercise of control, works a transforma- 
 tion in the judge, and begets a tendency to forget 
 that, after all, the judges, the lawyers, the jurors 
 and the court officers are but parts of common ma- 
 chinery to administer justice. 
 
 Undoubtedly there is a certain amount of respect 
 due to the position, which the bar should never for- 
 get, but it is difficult to understand the marked change 
 of attitude alluded to, except that it is the outgrowth 
 of a certain degree of consciousness that many of the 
 practitioners were the judges' superiors at the bar 
 and that, therefore, judicial dignity must assert 
 itself. 
 
 I have seen many instances of practitioners of 
 high repute, who were subjected to unpleasant ex- 
 periences growing out of the demeanour of the judge 
 presiding. I cannot believe that the overbearing con- 
 duct as well as the rudeness and brusqueness of the 
 judge could be intentional, though it was certainly 
 conduct which would not have been tolerated for 
 an instant between members of the bar, yet in the 
 presence of the Court the practitioner was power- 
 less. 
 
 There was a very conscientious judge, whose man- 
 ner in ordinary intercourse was in the highest degree 
 gentlemanly and courteous, but the moment that he 
 ascended the bench, his demeanour entirely changed 
 His voice in calling the calendar was raised to a high 
 pitch ; his attitude towards members of the bar who 
 
118 LAMDMARKS OP A LAWYER'S LIFETIME 
 
 had various excuses to present as the grounds of ad- 
 journment, and Ms treatment of counsel during the 
 trial was so loud and overbearing, that if it had not 
 been for the confidence the lawyers had in his innate 
 sense of justice, they could have never tolerated it. 
 I remember that someone remarked concerning him, 
 when his loud voice was so noticeable calling the 
 calendar of contested motions at Special Term. 
 ' ' The people in selecting a poor judge, spoiled a good 
 auctioneer. ' ' 
 
 At the time of my admission to the bar there were 
 but five judges of the Supreme Court, Judges Suther- 
 land, Ingraham, Barnard, Cardozo and Brady. 
 Judge Sutherland's term, in a short time, expired. 
 It was my privilege to become well acquainted with 
 him. He had a rugged and stem countenance, sur- 
 rounded by a bushy beard, and his exterior indicated 
 severity and sternness, but he had one of the kindest 
 hearts and most genial dispositions which it has ever 
 been my good fortune to meet. He was full of kindly 
 sympathy and good nature. He was a man of the 
 people, plain, unassuming, genuine. His manner 
 and dress and his shambling gait betokened more of 
 the prosperous farmer than the learned judge. Dur- 
 ing his early practice he was a resident of Madison 
 County, and as counsel for the Van Rensselaers he 
 witnessed many stirring scenes in the anti-rent war 
 which prevailed in that locality, where the Van Rens- 
 selaers were the great land owners. Unfortunately 
 Judge Sutherland's term of office expired with the 
 year when the elction was held which resulted in the 
 overthrow of the Tweed regime. He deserved re- 
 
SOME JUDICIAL PERSONAGES 119 
 
 nomination and re-election, and probably expected it. 
 One of the judges, now on the bench, who was related 
 to him and associated with him in practice after his 
 retirement from the bench, and familiar with the 
 events of that time, told me that Judge Sutherland 
 was somewhat uneasy with respect to his nomination 
 until he had a conversation with William C. Barrett, 
 a member of the bar, influential in politics and an 
 uncle of the late Judge George C. Barrett. Judge 
 Sutherland was assured by Willia,m C. Barrett of his 
 own support, and that any anxiety was unnecessary. 
 He therefore departed on his customary vacation and 
 left it to my informant to let him know the situation 
 as it transpired. It soon became apparent that Mr. 
 William C. Barrett instead of supporting Judge 
 Sutherland was laying his plans for the nomination 
 of his nephew, George C. Barrett. A most influen- 
 tial body of citizens had been recently formed, under 
 the name of the Committee of Seventy, and when 
 they selected a candidate it was George C. Barrett, 
 who also received the support of the Republicans, 
 and Judge Sutherland was sent into retirement. As 
 told me, this act of William C. Barrett was one of 
 gross treachery, of which his subsequent career 
 showed him to be capable, because, not many years 
 later, it was discovered that he was guilty of serious 
 defalcations in professional matters, and he fled to 
 Ireland, where he spent his remaining days in pov- 
 erty, receiving an allowance of one pound ($5.00) a 
 week from his nephew. Judge George C. Barrett, who 
 was elevated to the bench. 
 
 After Judge Sutherland's return to practice, he 
 
120 LAJSIDMAEKS OF A LAWYER'S LIFETIME 
 
 was appointed referee to hear and determine a litiga- 
 tion in my father's office in which I acted as trial 
 counsel. Like most young lawyers, I was full of ob- 
 jections to the testimony offered by my opponent and 
 greatly chagrined that quite invariably my objections 
 were overruled. I could not understand why Judge 
 Sutherland should decide so constantly against me 
 and, after one of the hearings, in a fit of depression, 
 I told my father that Judge Sutherland was against 
 me. He asked me what the judge had done, and I in- 
 formed him of the adverse decisions. "Well," said 
 he, "perhaps Judge Sutherland is ruling against you 
 now so that he may decide for you later and deprive 
 your opponent of the opportunity of securing any 
 exceptions." I then saw a great light and ceased 
 making objections, and when the decision was ren- 
 dered it was as my father had prognosticated. 
 
 In a year or two. Judge Sutherland was nominated 
 and elected City Judge, and presided in the trial of 
 criminal cases, occupying that position until his 
 death. He was a man of religious instinct, and of a 
 remarkably pure and blameless life. No better testi- 
 mony to this could be furnished than the action of a 
 number of the most eminent members of the bar in 
 presenting to the Association of the Bar, on Judge 
 Sutherland's retirement from the bench, a well exe- 
 cuted and admirable portrait of the Judge which now 
 hangs over the entrance to the library of the Associa- 
 tion, accompanied by a letter, which says : 
 
 "The undersigned beg leave to present to the Association 
 of the Bar of the City of New York a portrait of the Hon. 
 Josiah Sutherland, late a Justice of the Supreme Court of 
 
SOME JUDICIAL PERSONAGES 121 
 
 this State, as a memorial of a man who administered his 
 high office with purity in corrupt times. ' ' 
 
 Another judge possessing many of the character- 
 istics of Judge Sutherland was David McAdam. In 
 the early years of my practice he was one of the busi- 
 est lawyers in the City of New York, in the inferior 
 courts. I doubt whether any man ever had so large 
 a practice as he among the poorer classes and in un- 
 important litigations, so far as concerned the amount 
 of money involved. He was constantly in the Dis- 
 trict courts and in the Marine Court of the City of 
 New York. His energy was superabundant, his 
 activity was unlimited, and his industry was inde- 
 fatigable. He sprang from the people and he was a 
 man of the people. He had little polish or refinement 
 of manner, but untiring perseverance had made him 
 an excellent lawyer, and this, coupled with an exceed- 
 ingly plain, direct and homely way of presenting a 
 legal question, gave him great influence in the courts 
 in which he practiced. His large experience in land- 
 lord and tenant cases resulted in the accumulation by 
 him of a breadth of legal knowledge on that subject 
 which made him an authority, and he prepared that 
 most valuable and useful book "McAdam on Land- 
 lord and Tenant," which is recognised everywhere 
 as a leading work on that subject. Judge McAdam 's 
 judicial career was one of steady growth and ad- 
 vancement. It was natural that he should be elected 
 a judge of the court in which he practiced most, and 
 about 1880 he became a judge of the Marine Court. 
 He served in that capacity about ten years, during 
 several of which he was Chief Judge of the court. 
 
122 LANDMARKS OP A LAWYER'S LIFETIME 
 
 He was then elected to the Superior Court of the 
 City of New York for a term of fourteen years, and 
 upon the consolidation of the courts he became a 
 Justice of the Supreme Court. He was remarkable 
 for an absence of all formality, lack of assumption 
 of judicial dignity, readiness with which he reached 
 the pith of a legal controversy and his despatch 
 in disposing of it. When the judges of the Su- 
 preme Court assumed gowns, this step met, in him, 
 decided opposition. He at first declined to wear one, 
 but finally, out of deference to his associates, he con- 
 sented to do so, refusing, however, to robe himself 
 in his private chambers and thence proceed with 
 stately step to the court room, but, instead, had his 
 gown brought to the clerk's room adjoining the court 
 room, and there robed himself and proceeded to the 
 bench. From all indications, probably no one was 
 ever so uncomfortable in a gown as Judge McAdam. 
 
 Beneath all his plainness and lack of polish there 
 was, however a well trained and cultured intellect 
 which found expression, not only in that monument 
 of industry, "McAdam on Landlord and Tenant," 
 but in an interesting and, indeed, valuable book, of 
 which he was one of the editors, "The Bench and Bar 
 of New York," containing sketches of judges and 
 lawyers. 
 
 I do not know of any one who apparently enjoyed 
 his judicial office more than Judge George Shea, who 
 was proud to be known as the Chief Judge of the 
 Marine Court of the City of New York. He was a 
 typical Irishman, as his name indicates. He was 
 particularly urbane and courteous and had an im- 
 
SOME JUDICIAL PERSONAGES 123 
 
 pressive manner. His judicial dignity was indeed 
 pronounced and it may be truly said that in his fair- 
 ness, courtesy and demeanour, as well as his dignity, 
 he magnified his oflace. It was related of him that 
 soon after he was made Chief Judge he paid a visit 
 to "the old country," and the home of his youth. 
 Here he was received with unbounded distinction, it 
 being assumed, he being careful not to dispel the 
 assumption, that, as Chief Judge of the Marine Court 
 of the City of New York, he was presiding over one 
 of the highest courts of Admiralty jurisdiction in 
 our land, when, if the truth must be known, the 
 Marine Court was one of the inferior city courts, 
 with a jurisdiction limited to actions involving not 
 more than one thousand dollars and possessing no 
 admiralty jurisdiction whatever. Of course it mat- 
 tered not to him and it made no difference to them 
 that there was a mistaken supposition respecting 
 the importance of his judicial position, and, quite 
 Ukely, he would have been, as he deserved to be, 
 honoured just the same. 
 
 Besides being a judge, he was a student of history 
 and a writer of no mean pretensions. He was a 
 student, among other things, of the times of Alex- 
 ander Hamilton and he produced a "Life of Hamil- 
 ton" which was received with high and well deserved 
 encomiums. 
 
 As a genuine Irishman, Judge George Shea pos- 
 sessed the Irish characteristic of hot-headedness, 
 which led him on one occasion, at least, to transgress 
 the bounds of propriety. It happened that I was 
 appointed referee to hear and decide a case in which 
 
124 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Judge Shea, after his retirement from the bench, 
 represented the defendant, and Honourable L. E. 
 Chittenden, former U. S. Treasurer under President 
 Lincoln, represented the plaintiff. The issue was 
 somewhat warmly contested, but with no exhibition 
 of bad feeling on the part of either until the case 
 had progressed a considerable time. Judge Shea 
 was getting a little the worst of the argument, Mr. 
 Chittenden pressing him rather closely. I was 
 more than surprised, in fact, decidedly startled, 
 by Judge Shea exclaiming to Mr. Chittenden: 
 "You're an ass." Up to that time Mr. Chittenden 
 was in good humour and it is to his credit that he did 
 not lose it entirely, although the characterisation 
 evoked an emphatic protest. The spectacle of Chief 
 Judge Shea, so well known for his remarkable dig- 
 nity and urbanity as a judge, descending to the use 
 of appellations respecting his adversary which he 
 would have been the first to reprove, combined with 
 the explosiveness of the utterance and a countenance 
 suffused with a glow of rage, was in itself so ridicu- 
 lous that I could scarcely restrain my laughter. 
 Fortunately I was able to command sufficient self- 
 possession toward the learned judge to indulge, as 
 he had often done toward other choleric members 
 of the bar, in some well meaning platitudes respect- 
 ing the observance of professional propriety in the 
 intercourse of professional brethren with each other. 
 Judge Shea undoubtedly felt genuine satisfaction, 
 and justly so, in the part he took in the proceedings 
 for a writ of habeas corpus to obtain the release 
 from imprisonment, on bail, of Jefferson Davis. Al- 
 
SOME JUDICIAL PERSONAGES 125 
 
 though a Democrat, Judge Shea had more or less in- 
 timate relations with Horace Greeley, and it was 
 probably the outgrowth of these that led to the sug- 
 gestion of a possibility to bring about the release 
 of Mr. Davis by means of a writ of habeas corpus. 
 This course was in line with Mr. Greeley's well- 
 known and highly creditable policy of allaying, so far 
 as possible, sectional feeling, by manifesting a spirit 
 of magnanimity toward our defeated Southern breth- 
 ren and welcoming them repentant and submissive, 
 to the privileges of fellow-citizenship. While the 
 fundamental idea was probably Mr. Greeley's, the 
 plan of proceeding was quite likely Judge Shea's. 
 At all events it is true that Judge Shea enlisted the 
 services of Charles 'Conor, and together they 
 instituted proceedings in the United States Court in 
 Virginia to obtain the writ. In the existing state of 
 excited public feeling, it was thought altogether prob- 
 able that the writ could not be obtained, or if ob- 
 tained, that Mr. Davis would not be released, be- 
 cause no judge could be found courageous enough to 
 order it. Nevertheless the proceedings for the writ 
 were prosecuted, the writ was granted, returnable 
 in Eichmond, and Messrs. 'Conor and Shea pro- 
 ceeded to Richmond to make their arguments at the 
 hearing on the writ. It was unquestionably an un- 
 popular proceeding and, in fact, in defiance of pub- 
 lic sentiment, but Messrs. O'Conor and Shea did 
 their full duty. Fortunately they found themselves 
 in the presence of a judge who could not be influenced 
 by public clamour, and, after full argument, they 
 had the satisfaction of hearing the judge announce 
 
126 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Ms decision sustaining the writ and ordering the re- 
 lease of Mr. Davis, on bail, which was immediately 
 furnished, Mr. Greeley, one of the foremost aboli- 
 tionists, and strongest opponents of the Southern 
 Confederacy, being one of the bondsmen for its late 
 President. 
 
 I should not forget Judge Donohue, whom all 
 of the members of the bar between 1876 and 1890 
 have good reason to remember. Charles Donohue 
 was, in fact, a lawyer of first rate ability and pro- 
 nounced success in his specialty. Why he should 
 ever have been elected a Justice of the Supreme 
 Court of the State of New York is inexplicable, ex- 
 cept upon the theory of political expediency. Be- 
 fore he was elected judge he was an expert admi- 
 ralty lawyer, and had an admiralty practice proba- 
 bly larger and more important than any other mem- 
 ber of the bar, and he should never have abandoned 
 it ; but suddenly, without any previous training, and, 
 in fact, without necessary qualifications for the 
 position, he was elected to the bench of the Supreme 
 Court, and in this position, served during a term 
 of fourteen years. There was nothing judicial in 
 his appearance or demeanour. Short, rotund, with 
 a head like a bullet, cross-eyed, rather negligent and 
 careless in his dress and with a mincing gait, he 
 looked anything but the judge. I was often before 
 him, and knew him well. He was one of the most 
 accommodating judges that could be found. In 
 fact he would sign almost any order that was pre- 
 sented to him, his idea being that if the order was 
 not right he could easily vacate it on the applica- 
 
SOME JUDICIAL PERSONAGES 127 
 
 tion of the other side. Anybody toward whom he 
 was favourably disposed could get almost anything 
 from Judge Donohue, and it then became a question 
 whether the person could keep what he had got. A 
 trial before him was a unique and unusual proceed- 
 ing. He regarded no precedents; followed no es- 
 tablished rules ; did not consult authorities. It mat- 
 tered not to him what other courts had decided, and 
 in his charges to juries, almost always fair and im- 
 partial, he would present the issue of fact without 
 taking the trouble to state the law applicable to it, 
 leaving the jury to dispose of the case in favour of 
 one party or the other without any rules to guide 
 them, just as they might determine the issue of fact 
 to be. His mind was unusually keen and clear and 
 it is to his credit that it could never be said of him 
 that he failed to comprehend the point of a legal 
 controversy. But he dispensed justice according 
 to his own ideas and upon his own theories, with 
 an almost utter disregard of what appellate tri- 
 bunals might say of his action. He had at least the 
 merit of being perfectly right, or absolutely wrong. 
 The justice he administered was rude and untutored, 
 but it was never dishonest. He had his favourites 
 and for them he would do almost anything. He had 
 strong prejudices and animosities which undoubt- 
 edly influenced him, but in discharging the duties of 
 his office there was a limit which his friends would 
 not be permitted to exceed, as there was also a limit 
 beyond which he would not permit his prejudices or 
 animosities to go. 
 
 Judge Donohue was so accessible and friendly 
 
128 LANDMARKS OF A LAWYER'S LIFETIME 
 
 that a considerable number of tbe individuals "whom 
 he permitted to enjoy his association and friendship 
 were of a sort whose influence was productive of 
 harm rather than of good. This, with his reckless- 
 ness in granting all sorts of applications, and orders, 
 relying upon the good faith of the applicants, and his 
 "happy-go-lucky" way of discharging the duties of 
 his position, finally brought down upon him the vials 
 of wrath of the Association of the Bar, in the form of 
 a memorial adopted by the Association for presen- 
 tation to the legislature, with the purpose of hav- 
 ing some action taken respecting the judge. But it 
 amounted to nothing. Judge Donohue required no 
 vindication on any charge of dishonesty and he 
 served his entire term, at the expiration of which 
 he resumed practice. But his career on the bench 
 rather detracted from instead of adding to his repu- 
 tation as a lawyer and he met with small success 
 as a practitioner. 
 
 Indecision is a mental ailment which afflicts some 
 of the worthiest judges. In some this is the result 
 of ignorance of the law and consequent failure to 
 appreciate the legal questions involved and the ar- 
 guments relating to them, and to apply accurately 
 the law to the facts of the case. In others no such 
 fundamental defect exists, and a judge may be a 
 master of jurisprudence and well-equipped to deal 
 with complicated legal controversies, but yet may 
 have an intellectual uncertainty which is swayed to 
 and fro by contending arguments, until an oppor- 
 tunity arrives to calmly consider the questions in- 
 volved, free from the influence of contending forces. 
 
SOME JUDICIAL PERSONAGES 129 
 
 Whether this indecision arises from the one cause 
 or from the other, it occasions, nevertheless, great 
 difficulty and embarrassment. In the former case 
 it involves a process of education, where there is a 
 necessity of enforcing the most elementary proposi- 
 tions of law, while in the latter it becomes sufficient, 
 after long discussion, to mark out a pathway which 
 the judge will, on reflection, recognise as leading to 
 the proper destination. 
 
 One of the best judges who has occupied a seat 
 on the bench in this city, really a master of equity 
 jurisprudence and of the law relating to testamen- 
 tary dispositions, was thus afflicted. He was 
 learned and able and his decisions, when announced, 
 commanded the greatest respect. He was one of 
 the most gentle, courteous and altogether lovable 
 judges whom I have known, but he laboured under 
 the indecision to which I have referred. His con- 
 scientious uncertainty and desire to reach the right 
 result would lead him to sway first toward one side 
 and then towards the other, until the argument was 
 prolonged beyond all reason. At times it would be 
 difficult to understand how there could be any un- 
 certainty in his mind as to the correct result, but 
 when he had had time to consider and deliberate, his 
 decision would be almost uniformly correct. 
 
 At the time that my father was on the bench, there 
 was a worthy and estimable judge who was also af- 
 flicted with indecision. The legal shuttle-cock would 
 be batted to and fro between the opposing counsel 
 with the judge in a bewilderment. On one occasion 
 Judge Henry E. Selden of Rochester, one of the 
 
130 LANDMARKS OF A LAWYER'S LIFETIME 
 
 most accomplished lawyers and judges of his time, 
 was arguing a case before this particular judge. It 
 seemed impossible for either Judge Selden or the 
 opposing counsel to make any definite impression, 
 and after the argument was unduly prolonged, 
 Judge Selden, in despair, laid down his papers on 
 the table and resumed his seat with the remark, 
 ' ' Oh, for one hour of Judge Strong. ' ' 
 
 A type of judge difiBcult for practitioners to deal 
 with is what may be called the "settling" judges. 
 
 These are bent upon bringing about settlements 
 in cases brought before them for trial, by shaping 
 the course of the proceedings in such a manner as 
 to effect a compromise. Their disposition is to as- 
 sume a Solomon-like judicial quality in adjusting 
 controversies, but without exhibiting his wisdom. 
 In almost every case efforts to settle or compro- 
 mise have been exhausted by counsel before the 
 case is brought to trial, although occasionally they 
 will, during the trial, get together and reach a sat- 
 isfactory settlement. Undoubtedly, the motive of 
 the "settling" judge is praiseworthy, but as it is 
 not the function of a judge to act as mediator, ef- 
 forts in the direction of a settlement, unless by 
 kindly and tactful suggestions, are out of place. 
 This is particularly true in jury trials, for if a jury 
 receives the impression that one of the parties is 
 willing to settle and the other is not, a prejudice is 
 at once created which may be altogether unwar- 
 ranted ; and moreover the judge in any case, whether 
 with or without a jury, is likely to share the same 
 prejudice, which may unconsciously influence his 
 
SOME JUDICIAL PERSONAGES 131 
 
 judgment. One of the most difficult situations in 
 which an advocate and the party whom he repre- 
 sents can be placed, is to be compelled by the intima- 
 tions of the judge to take the responsibility of re- 
 jecting a settlement which the judge recommends. 
 Besides, the result frequently is to protract the liti- 
 gation rather than dispose of it. 
 
 An instance of this in my own experience was 
 when an unfortunate lady had been compelled to 
 bring an action against a corporation into whose toils 
 she had fallen, having been induced to entrust to it a 
 considerable sum of money, upon the income of 
 which she was dependent for her support. It was 
 difficult to understand the action of the judge in 
 taking a technical and narrow view of the circum- 
 stances, the hardship of which he fully recognised. 
 This view, however, ultimately led him to suggest 
 to the company's counsel that they should consent 
 to his directing a verdict for about one-fifth of the 
 poor lady's claim. Of course this was gladly con- 
 sented to by the counsel for the company, and the 
 lady retired from the court with a verdict in her 
 favour, but for an entirely inadequate amount. 
 The result of the effort of this well-meaning judge 
 was that the lady was put to the expense of an ap- 
 peal to a higher court, where the action of the judge 
 was disapproved and the case remanded for a new 
 trial, necessitating, of course, doing over again the 
 work of preparing the case for trial, procuring the 
 attendance of witnesses and trying the ease. The 
 second trial resulted in a verdict in the lady's 
 favour for the full amount, but the company was 
 
132 LANDMARKS OF A LAWYER'S LIFETIME 
 
 spurred on by its previous success to a further ap- 
 peal, wMch, however, it prosecuted unsuccessfully. 
 There being still the Court of Appeals to which re- 
 sort might be had, an appeal was taken to that 
 court, where the estimable lady was completely vic- 
 torious. 
 
 If, in the first instance, the judge had confined 
 himself to his proper function of hearing the evi- 
 dence and submitting the questions of fact to the 
 jury, under what were perfectly plain principles of 
 law applicable to the case, all the trouble and ex- 
 pense to both parties, and the time of the various 
 courts as well, would have been saved, and justice 
 would have been accomplished. 
 
 The humorous judge is one of the most unpleas- 
 ant, for of all things difficult to contend with, judi- 
 cial wit or buffoonery is the worst. Nothing is more 
 fatal to a lawyer in his management of a case, es- 
 pecially before ' a jury, than to have the laugh 
 turned on him by the judge. It is not difficult to 
 deal with the wit of one's adversary, because the 
 jury regard that as a part of the byplay of the 
 case, and, as counsel stand upon an equal footing, 
 such weapons as are permissible can be used by 
 either, and each can deal out from his arsenal such 
 shafts as are appropriate. But when it comes to 
 the judge, it is different; the lawyer is at a disad- 
 vantage; he may not retort upon the judge. It 
 would never do to get the laugh on the Court be- 
 cause, in the first place, it is disrespectful and con- 
 temptuous, and in the second place, it might have 
 a deleterious effect upon the fortunes of one's case. 
 
SOME JUDICIAL PERSONAGES 133 
 
 I knew a judge once who was an instance of being 
 afflicted with a desire to be humorous, although he 
 possessed neither wit nor humour. In everything 
 that took place he saw something to laugh at, and 
 from the time the trial began until its close there 
 was a succession of coarse ridicule and loud guffaws 
 that rendered the proceedings almost farcical. He 
 was not without ability, nor did he lack a sense of 
 justice, and as his ridicule and laughter were pretty 
 evenly distributed, neither party was put to a great 
 disadvantage ; but the course of proceedings in trials 
 before him was certainly inconsiderate and indecor- 
 ous. To my mind, the justice who attempts to be 
 funny on the bench appears to poor advantage. 
 Everybody, of course, is bound to laugh with him out 
 of respect to the Court but, at the same time, many 
 who appear to be laughing with him are really laugh- 
 ing at him. 
 
 Another type of judge that gives a good deal of 
 trouble is the talkative judge. The famous lawyer 
 of olden times — Selden — ^made a very sententious 
 and keen-witted observation when he remarked: 
 "A much-speaking judge is no well-tuned cymbal." 
 Judges would do well to bear this in mind, as well 
 as that characterisation of the wise man by King 
 Solomon, as "one who answereth not before he 
 heareth. " 
 
 Chief Judge Charles P. Daly, of the Court of 
 Common Pleas, although a most learned, able, con- 
 scientious and upright man, was an instance of the 
 talkative judge. He presided over the Court of 
 Common Pleas at the hearing of appeals by the 
 
134 LANDMARKS OP A LAWYER'S LIFETIME 
 
 General Term of that court. It was impossible to 
 make a continuous and connected argument before 
 him. In some way he had become impressed with 
 the idea that the colloquial style of argument was 
 the most effective, adopting, somewhat, the prac- 
 tice of the English courts in this respect, where the 
 judges, at times, carry on a colloquy with counsel. 
 But Judge Daly carried it beyond all bounds; it 
 was difiBcult to proceed at any length without inter- 
 ruption from him, and this was so characteristic of 
 him that an argument amounted to little or nothing 
 as a connected presentation of a case. His inter- 
 ruptions were ofttimes disconcerting and annoying, 
 and counsel would depart from the court with a feel- 
 ing that their case had not been really heard. I re- 
 member an occasion when my father was arguing a 
 case for the New York Central Eailroad, growing 
 out of the loss of baggage. He made a statement 
 of the facts of the case and entered upon his argu- 
 ment, only to be interrupted by Chief Judge Daly, 
 and this was followed by a series of interruptions 
 that entirely prevented the presentation of his care- 
 fully prepared views. The only time I ever knew 
 my father to lose control of his temper in court was 
 on this occasion when, after a series of most discon- 
 certing interruptions, and facing the Court with a 
 copy of his case in one hand and a copy of his brief 
 in the other, he laid down first his case and then his 
 brief, and looking at Judge Daly, remarked in a dig- 
 nified tone: "I shall no longer continue to struggle 
 with the Court," and sat down. Judge Daly looked 
 at him in surprise, and then called upon the oppos- 
 
SOME JUDICIAL PERSONAGES 135 
 
 ing counsel to respond. He, evidently thinking that 
 he had plain sailing as the Court was apparently 
 against my father's views of the case, made a very 
 brief statement, and the argument was closed. But 
 he reckoned without his host, for when the decision 
 was announced it was in my father's favour. 
 
 Whatever defects Judge Daly may have had as a 
 presiding judge in an appellate tribunal, there can 
 be no question whatever as to his distinguished 
 career as a learned and conscientious judge, and as 
 a public-spirited, high-minded and courteous gentle- 
 man. He was elected to the Court of Common Pleas 
 in 1844, and retired from its bench by age limita- 
 tion on December 31st, 1885. He served contin- 
 uously in that court forty-one years, affording one 
 of the few instances of such an extended service. 
 He must have been elected when only twenty-nine 
 years of age, and in this respect also is noteworthy 
 as one of the youngest men ever elected to the bench 
 of one of our higher courts. Strange to say, it was 
 only when presiding in the appellate branch of his 
 court that he displayed the talkativeness to which 
 allusion has been made. When presiding at trials 
 of cases, or in the hearing of motions, he was a most 
 patient and attentive listener and said but little. 
 Why in the more important position of hearing ap- 
 peals he should have been so fond of interrupting 
 counsel it is difficult to understand, unless it may be 
 explained, as already stated, that he desired to fol- 
 low what he supposed to be the custom of the Eng- 
 lish courts. His opinions were always marked by 
 painstaking consideration of the case; and, in all 
 
136 LANDMARKS OF A LAWYER'S LIFETIME 
 
 other respects, he proved himself to be a most ef- 
 ficient and useful judge. He was also a man of wide 
 culture and extensive reading, and the science of 
 geography seemed to possess for him a strong fas- 
 cination. For many years he was president of the 
 Greographical Society, encouraging scientific investi- 
 gation, and securing for its public meetings lectures 
 from some of the most eminent geographers and 
 travellers of the time. His countenance was indica- 
 tive of a strong character, and at the same time bore 
 an expression of great benignity, presenting with 
 his long flowing whiskers a venerable and impressive 
 appearance. 
 
 Chief Judge Daly and Joseph F. Daly, with one of 
 their associates, who was regarded as a weak judge, 
 were assigned to hold the General Term, and on as- 
 sembling the first day of the term to call the cal- 
 endar , a punster put the following conundrum : 
 "Why is the General Term, as it is now composed, 
 like certain issues of the public press?" No one 
 being able to solve it at the moment, he said: "Be- 
 cause there are two Dalys and a weakly." 
 
 One of the most valuable attributes of the judi- 
 cial faculty is that of patient listening, and though 
 it is getting to be rare, except in the highest tri- 
 bunals, it is a characteristic of the best judges. In 
 the lower courts the proceedings instead of being 
 marked by patient listening, are more frequently 
 characterised by exceedingly impatient interrup- 
 tions. As one proceeds to the higher courts the pa- 
 tient listening becomes more common ; when one has 
 reached the Appellate Division or the Court of Ap- 
 
SOME JUDICIAL PERSONAGES 137 
 
 peals of our own State, or the Circuit Court of Ap- 
 peals, or the Supreme Court of the United States, 
 it will be found that the proceedings manifest this 
 particular quality; even at times when the specta- 
 tor must wonder that the judges can pay attention 
 to what appears to be useless argument. 
 
 This is illustrated by the story of a young lawyer 
 who had a carefully prepared argument to present 
 to a bench of learned judges. His adversary made 
 the opening argument, to which the court listened 
 attentively, and, at its close, he began his own. He 
 had proceeded but a short time when the Court made 
 an intimation which was distinctly favourable to 
 him but he did not appreciate its bearing, and con- 
 tinued. Again the Chief Justice made a sugges- 
 tion which was plainly intended to show him that 
 much argument was not necessary, as the Court was 
 in his favour. This had no effect, and after a third 
 attempt in the same direction, the Court resigned 
 itself to hearing his argument to its close, when the 
 Chief Justice looked down at him and in his blandest 
 tones remarked: "Mr. Blank, notwithstanding all 
 that you have said, the Court is stUl with you." 
 A similar incident arose during an argument in the 
 Appellate Division in New York when a zealous 
 lawyer was so convincing that Presiding Justice 
 Van Brunt intimated that the Court would like to 
 hear the other side upon the point presented. In- 
 stead of resuming his seat, satisfied that the Court 
 was favourably impressed, he stated that he had 
 several important points to present and that he 
 would like to be heard to the conclusion of his argu- 
 
138 LANDMARKS OF A LAWTBB'S LIFETIME 
 
 ment. "Well," replied the Presiding Justice, "go 
 on, and quite likely you wiU be able to convince the 
 Court that you are wrong." 
 
 I have never seen more patient and courteous lis- 
 tening than in our Court of Appeals, and every law- 
 yer who has appeared there since its organization 
 must have come away impressed with the feeling 
 that whatever the merits of the case may have been, 
 he has at least been patiently heard. 
 
 The impatience of a judge was never better met 
 than by the Scotch Erskine who was arguing a case 
 before Lord Braxfield, when the latter remarked in 
 a most impatient and inconsiderate way: "Brother 
 Erskine, w'hat ye 're saying gaes in ane ear and out 
 of tither." "Naturally," replied Mr. Erskine, 
 "what is there to prevent it." 
 
 The same sort of wit, but not so delicate, was dis- 
 played by one of our Jewish brethren in the trial 
 of a criminal case. In the course of the trial the 
 Assistant District Attorney, with more zeal than 
 discretion, signified his approval of favourable 
 testimony as it fell from the lips of the witnesses by 
 nodding his head, and when the testimony was un- 
 favourable, by shaking his head. The testimony 
 having been presented, and the time for summing up 
 having arrived, our Jewish brother proceeded to ad- 
 dress the jury on behalf of his client. In the course 
 of his address, he referred to the nods and wags of 
 the District Attorney in somewhat such vein as this : 
 "You have seen, gentlemen of the jury, how the Dis- 
 trict Attorney, when he approves of evidence, nods 
 his head in approval, and when the evidence is unfa- 
 
SOME JUDICIAL PERSONAGES 139 
 
 voiirable he wags Ms head in disapproval. He has 
 no right to do this. His duty is of a semi- judicial 
 character. He has no right to express his approval 
 or disapproval. His duty is to submit the evidence 
 and leave its approval or disapproval to you, and 
 when he nods his head in approval, or wags his 
 head in disapproval, there is nothing in it." The 
 Assistant District Attorney was incensed, and im- 
 mediately arose and asked if he was to be compelled 
 to listen to such malignity and tolerate such abuse. 
 His adversary replied: "There is nothing on the 
 record to object to." The Judge, probably amused 
 at the occurrence and thinking the comment de- 
 served said: "Yes, Mr. District Attorney, there is 
 nothing on the record and counsel may proceed." 
 Whereupon our Jewish brother concluded: "Yes, 
 gentlemen of the jury, I repeat, he nods his head 
 and he wags his head, but there is nothing in it. It 
 is all emptiness." 
 
 One of the greatest evils with which lawyers have 
 had to contend has been the delays of judges in 
 rendering their decisions. I know of no form of in- 
 justice that is greater than this. Undoubtedly there 
 are complicated cases with voluminous testimony, 
 involving intricate questions of law, which justify 
 considerable delay, but delays of from six to eight 
 months, or even a year, or more, in deciding a case 
 seem to be inexcusable. Death or insolvency some- 
 times steps in to defeat a meritorious claim which, 
 if decided by the judge, could have been promptly 
 collected. I have had, as every lawyer of any prac- 
 tice has also had, experience of this sort where de- 
 
140 LAM)MARKS OF A LAWYER'S LIFETIME 
 
 cisions have been held up to the detriment of the 
 rights of the prevailing party. 
 
 I recall one of my cases, which was not difficult in 
 any sense of the term, in which the judge held up a 
 decision for a year. It was difficult to approach the 
 judge and ask for a speedy decision, but I was for- 
 tunately enabled to remind him of the fact that the 
 case was not decided, by sending him an authority 
 which I accidentally found, and shortly afterward 
 his decision was rendered. 
 
 Another instance of delayed decision was in a 
 simple action based upon fraud and deceit, in which 
 a demurrer was interposed to the complaint on the 
 ground, among other things, that damage to the 
 plaintiff had not been sufficiently alleged, and this 
 was the point upon which the demurrer was finally 
 disposed of. Any ordinarily competent judge could 
 have arrived at a determination of the matter at the 
 hearing, but the decision of that simple question was 
 delayed a year, to the great injustice of the parties. 
 I have known judges to be importuned by counsel 
 to decide either way in order that a result might 
 somehow be reached. 
 
 Time is always an important element in favour 
 of the defendant and when a party has a good case, 
 it ought not to be the judge's fault that it is not 
 promptly disposed of. 
 
 Since the advent, in later years, of stenographers, 
 and the use of them by the judges, there has been a 
 noticeable increase in the length of judicial opinions, 
 presenting a marked contrast to the brief and con- 
 cise opinions found in the earlier volumes of our 
 
SOME JUDICIAL PERSONAGES 141 
 
 State Eeports and down to as late as the first thirty 
 volumes of our Court of Appeals. Since then the 
 tendency has been toward lengthy opinions pre- 
 pared, as one of our judges once expressed it, by 
 reading through the case on appeal and the printed 
 arguments of counsel, following it by calling in a 
 stenographer and making a stump speech about the 
 controversy. Undoubtedly this tendency to expand 
 opinions has been productive of some undesirable 
 features in the way of obiter dicta, which might well 
 have been omitted, and which have occasioned em- 
 barrassment in subsequent litigations, but it is due 
 to the judges to say that the responsibility may not 
 be wholly theirs, as in recent years there has been 
 a growing tendency on the part of counsel to ex- 
 pand their briefs to inordinate length, calling, per- 
 haps, for judicial utterances of greater length than 
 would otherwise be necessary to cover the questions 
 discussed. Occasionally a bit of judicial humour 
 escapes in the form of an opinion. In a case which 
 I argued, the complaint, which had been prepared 
 by a distinguished member of the bar, Mr. Dorman 
 B. Eaton, was unusually and unnecessarily prolix. 
 A demurrer to the complaint was interposed and 
 an argument upon it was heard before the General 
 Term of the Supreme Court at which Judge Noah 
 Davis presided. He delivered an opinion which be- 
 gan: "Verbosity is not a ground of demurrer. If 
 it were, the Court might feel bound upon that ground 
 to uphold the demurrer in this case. ' ' After which 
 display of wit, he proceeded to the more serious 
 features of the case. 
 
142 LANDMARKS OF A LAWYER'S LIFETIME 
 
 The following opinion is an instance of eccentric- 
 ity of thought and language in dealing with the loss 
 of a cat at a poultry, pigeon and pet-cat show, 
 through negligence. 
 
 "Herein is an instance of bailment, or, to borrow learned 
 lan^age from Massachusetts (10 Gray, 366), locatum of a 
 Manx feline described as a male specimen, longer as to 
 its bind leg than as to its fore, prize winning from agri- 
 cultural societies, of great value, and without a tail. 
 Zenda, for so the Manx was digbt, was brought to the show 
 of pigeons, of poultry and of pets of the defendant, and 
 placed in a coop thereof by mistress and maid, assisted by 
 an offering man of fair complexion, and dressed in blue 
 checked overalls with a coloured blouse, in which livery 
 many were about to open the coop door, and showing both 
 how to open and how to close it. A little later the power- 
 ful and peculiar exhibit had moved the iron cage unfor- 
 sightedly, not fastened at the bottom, along and partly be- 
 yond the platform whereon it stood, making an aperture 
 sufficient for his escape. Then he was off. There was 
 quick and bootless pursuit by the attendant in pack with 
 many others, with hue and cry. Though often espied in 
 the secrecies between the roof rafters and the ceUar of the 
 garden, Zenda was never recovered. Whether his manucap- 
 ture was impracticable because he was strenuously moved 
 to solitude by jealousy or any other of the impulses so deli- 
 cately suggested by Allen, J., in his learned and sympa- 
 thetic opinion (21 Barb. 506) anent the contentions of and 
 over the dogs of Oneida County, or because ferm naturce, 
 as was held (47 Hun, 366) to be a bivalve, though desti- 
 tute of locomotivity, in an oyster-bed litigation in an ad- 
 joining judicial department, is not stated. . . . The learned 
 justice of the Municipal Court before' whom the parties 
 
SOME JUDICIAL PERSONAGES 143 
 
 appeared and introduced their evidence found for the plain- 
 tiff, and cast the defendant in damages of $50.00. He was 
 right." 
 
 Judicial opinions are not always characterised by 
 a finished literary quality, but rather by a direct and 
 rugged form of expression. Legal phrases and col- 
 loquialisms, and the influence of the language of 
 legal literature, have, it seems to me, a paralysing 
 effect upon the elegancies of literary composition. 
 
 An instance of peculiarity in the use of English 
 in judicial utterances was Mr. Justice Clifford of the 
 United States Supreme Court, who rarely began 
 a sentence with the articles "a" "an" or "the," or 
 with a personal pronoun. 
 
 Then there was Judge Folger, whose quaint and 
 unusual expressions made his opinions read as if 
 they belonged to the time of Lord Coke. 
 
 There are two prominent instances of elegant lit- 
 erary style which render an ordinary opinion a 
 pleasure to read. I do not know of more beautiful 
 use of English than that of Mr. Justice Field of the 
 Supreme Court of the United States. His combina- 
 tion of literary finish, and accuracy of expression, 
 it seems to me would be difficult to surpass. 
 
 There was als o Judge Finc h, of the Court of Ap- 
 peals whose earlier opinions read like specimens of 
 refined literary composition, although in later years 
 they did not seem to possess this characteristic. 
 But Judge Finch was a poet. He had cultivated a 
 fine literary style. He was cultured in literature, 
 and when he ascended the bench it was but natural 
 
144 LANDMARKS OF A LAWYER'S LIFETIME 
 
 that his opinions should manifest a superior literary 
 quality, though in time this was buried beneath the 
 dust of legal discussion, and almost disappeared 
 from view. In his college days he composed that 
 beautiful smoking-song with which every collegian 
 is familiar, beginning : 
 
 "Floating away, like the fountain's spray 
 Or plume of a royal maiden. 
 The smoke wreaths rise to the blue of the skies 
 With blissful fragrance laden." 
 
 During the days of the war his patriotism found 
 expression in poetry, and among his contributions 
 to the literature of that time was his famous poem 
 "The Blue and the Grey." Both of these are em- 
 bodied in a little volume of his poems published 
 after his death. 
 
CHAPTER V 
 
 POLITICAL INFLUENCES AND UPHEAVALS IN 
 THE JUDICIARY 
 
 The bane of our judicial system, so far at least as 
 the city of New York is concerned, is that judges 
 are too often the creatures of political parties. 
 The oflS.ce is bestowed not as the culmination of a 
 career of professional excellence as in England, but 
 as the reward of party service or political influence. 
 The question is, not what the claims as a lawyer are, 
 but what service has been rendered for the party, 
 and what the backing is as a party man. These 
 questions are to be answered by the party leader, 
 and, as very nearly all the judges in New York for 
 many years have been Tammany Democrats, they 
 have owed their position to John Kelly, Richard 
 Croker or Charles F. Murphy, the Tammany leaders. 
 Any one who desires to become acquainted with the 
 influence of a party leader in the selection of candi- 
 dates for office, has only to read Senator Piatt's in- 
 teresting reminiscences. The very first step for the 
 candidate to take is to make his bow, hat in hand, to 
 the party leader, and, if possible, enlist his support. 
 If he secures it, his path to a nomination is clear; 
 but if not, his case is hopeless, even though he may 
 have the support of the rank and file of the party 
 organisation. An instance of this was when Judge 
 E. T. Bartlett was first nominated for the Court of 
 
 145 
 
146 LANDMAEKS OF A LAWYER'S LIFETIME 
 
 Appeals. He was, of course, an entirely reputable 
 candidate, and served for many years efficiently as 
 a judge. He had received the assurance of Sena- 
 tor Piatt's support, but John Sabine Smith, a com- 
 petent lawyer, was also a candidate, and as he was 
 Chairman of the New York County Committee, and 
 as the candidate was to be a New York City lawyer, 
 he was naturally the choice of the party in New 
 York, and had the support of the party organisa- 
 tion. But that choice amounted to nothing because 
 it was not Senator Piatt's choice, and notwithstand- 
 ing Mr. Smith was, and Mr. Bartlett was not the 
 choice of the New York organisation, Mr. Bartlett 
 was nominated and elected. This is perfectly true 
 of the Democratic organisation in which the "slate" 
 is made up by the party "boss," and so far as the 
 delegates to the nominating convention are con- 
 cerned, they possess no function whatever except to 
 say "ditto to Burke." As party success depends 
 largely on a liberal supply of money, so the selec- 
 tion of a candidate for a judgeship depends in a 
 large measure upon his willingness and ability to 
 pay a liberal pecuniary consideration for the nomina- 
 tion, and, if commonly accepted reports are cor- 
 rect, the amount "contributed" by Tammany candi- 
 dates has reached figures as high as $30,000, or even 
 more. Even in the case of Republican candidates 
 whose chance of success is, at best, very doubtful, 
 a contribution is expected which, although never 
 over a tenth of this amount, and generally much 
 less, will, with other incidental expenses, sometimes 
 involve an expenditure of five thousand dollars. 
 
POLITICAL INFLUENCES AND UPHEAVALS 147 
 
 But even though the expense of "running" is large, 
 the compliment of a nomination, with the interest- 
 ing and indeed useful experiences of a "canvass" 
 and the helpful advertising the candidate obtains 
 if his nomination is well received and favourably 
 commented on in the newspapers, is worth more than 
 it costs. 
 
 Of course, if a nomination is equivalent to an elec- 
 tion, as was ordinarily the case of Tammany nom- 
 inees, an agreement to pay anything more than what 
 would be a reasonable contribution to the ordinary 
 and legitimate expenses of a party organisation, 
 amounts to nothing more nor less than a barter and 
 sale of the nomination. There are many Demo- 
 cratic lawyers of the highest standing who probably 
 would have been willing to accept judgeships had 
 not their self-respect prevented them from yielding 
 to the demands of a party "boss" for the payment 
 of an amount, under whatever guise, that they could 
 not but regard as the purchase price of the posi- 
 tion. The consequence is that while there have 
 been, during the past forty years, a few notable and 
 highly efficient judges in our New York Courts, the 
 bench has been occupied mostly by lawyers of med- 
 iocre ability and limited experience, to whom the 
 salary was a rich windfall, far exceeding their pre- 
 vious professional earnings. 
 
 The judiciary outside of the City of New York has 
 not, I think, been afflicted to so great a degree with 
 the harmful political influences to which I have re- 
 ferred. There seems to be a commendable pride, 
 especially among the lawyers, to secure the nomina- 
 
148 LANDMARKS OP A LAWYER'S LIFETIME 
 
 tion of able and successful lawyers for these im- 
 portant positions, and while in a very few instances 
 unworthy individuals are nominated and elected, 
 these instances are exceptions, and the great body 
 of judges throughout that part of the State is well 
 selected. Some of them are assigned, from time to 
 time, to hold court in New York City, and appear to 
 advantage, giving great satisfaction to the members 
 of the bar who come before them. 
 
 A notable and praiseworthy sentiment has gradu- 
 ally developed respecting the Court of Appeals and 
 the Judges of the Appellate Divisions to retain the 
 services of efficient judges, irrespective of party. 
 For some years the sentiment among all lawyers has 
 been adverse to interference with the composition 
 of the Court of Appeals on party grounds, and this is 
 a growing sentiment, the effect of which will proba- 
 bly be to remove the selection of Judges of the Court 
 of Appeals from party influence. When a vacancy in 
 the court is occasioned by resignation, age limita- 
 tion or death, it is, of course, natural that the polit- 
 ical parties should nominate rival candidates and 
 there will be, in most cases, little to choose between 
 the nominees, so far as qualifications for the posi- 
 tion are concerned, but when a judge is once selected 
 for that bench, the probabilities are that he will be 
 retained until his death, resignation or disqualifi- 
 cation by age. 
 
 The justices of the Appellate Division are desig- 
 nated by the Governor from the entire body of Su- 
 preme Court justices, and the same sentiment is 
 manifest, calling for their retention on the bench. 
 
POLITICAL INFLUENCES AND UPHEAVALS 149 
 
 This has prohably led to renominations in some in- 
 stances, which otherwise would not have been con- 
 ferred. I recall that at the time of the renomina- 
 tion of Judges Van Brunt, Barrett and Patterson, 
 there was serious question whether the leaders of 
 Tammany HaU would consent, and in each of these 
 instances, as I am credibly informed, an interview 
 was necessary with Richard Croker to secure his 
 approval. I can imagine how distasteful it must 
 have been to these able jurists to present themselves 
 before the Tammany magnate and seek his impri- 
 matur on their candidacy. It is to be hoped that 
 the sentiment alluded to will continue to grow and 
 that, as a result, capable judges will hold their places 
 until they are retired by resignation, age or death. 
 The evils in connection with our judiciary are the 
 outgrowth of our elective system, in which it is, of 
 course, hopeless to expect a change again to the ap- 
 pointive system, from which most lawyers will agree, 
 I believe, that no departure should have been made. 
 In England, under the system of an appointed judi- 
 ciary, the bench is occupied by successful lawyers of 
 long experience and tried capacity. The same is 
 true of the judiciary in Massachusetts, in New Jer- 
 sey, in Connecticut and some other States. It is 
 likewise true of our Federal Courts, in which the 
 quality of the judges is distinctly higher than in the 
 Supreme Court in New York City, although the sal- 
 aries of the judges are less than half of those in the 
 State Court. Indifference and lethargy of the peo- 
 ple, and their failure to discriminate with intelli- 
 gence between candidates are responsible for the 
 
150 LANDMARKS OF A LAWYER'S LIFETIME 
 
 character and quality of our judges, and probably 
 nothing different could be expected from the large 
 body of voters. But there is a class of voters of suffi- 
 cient intelligence and power of discrimination, if 
 they could be induced to take the trouble to exer- 
 cise it, to control almost any election of judges, and 
 the truth of this has become perfectly apparent in 
 some of the judicial upheavals in the past. Popu- 
 lar sentiment and conscience respecting the judge 
 is, when aroused, exceedingly sensitive, and when 
 brought into action carries everything before it. 
 An appeal, especially to the moral sentiment with 
 respect to judges, when brought home to the voter 
 will find a ready, intelligent and conscientious re- 
 sponse. In every election, of course, this moral 
 sentiment is involved more or less, but, in ordinary 
 circumstances, its importance is not appreciated, 
 and the citizen therefore votes his party ticket with- 
 out giving much attention to the question of the fit- 
 ness of the candidates for judgeships. When, how- 
 ever, a crisis occurs, resulting in a widespread 
 arousal of moral sentiment, party spirit disappears, 
 and the welfare of the bench is alone considered. 
 
 There have been some notable instances of these 
 judicial upheavals, due to an aroused moral senti- 
 ment, when the election of suitable judges was the 
 single important issue. Some instances of this are 
 the following: 
 
 Isaac H. Maynard had been appointed a judge of 
 the Court of Appeals by Governor David B. Hill. 
 He was a pronounced Democrat, an excellent law- 
 yer and, I believe, an estimable man. He was ap- 
 
POLITICAL INFLUENCES AND UPHEAVALS 151 
 
 pointed just after the election of 1892, and under tliia 
 appointment he would serve until January 1894, and 
 was nominated for a full term, the election for 
 which was held in November 1893. An election in 
 1891 occasioned an investigation, in the course of 
 which Judge Maynard's conduct in connection with 
 that election was made the subject of adverse crit- 
 icism, but his election in 1893, seemed to be a fore- 
 gone conclusion, as the Democratic party was in the 
 ascendency, and it was generally supposed that a 
 special effort would be made to elect Judge May- 
 nard, whatever the fate of the other candidates 
 might be. His election seemed to be so sure that 
 the Eepublican nomination went a-begging, being 
 offered to, and declined, by a considerable number 
 of individuals, but finally a candidate was found 
 in Mr. Edwin T. Bartlett, willing to accept what 
 was supposed to be the empty honour of a nomina- 
 tion, to be followed by inevitable defeat. The issue 
 depended solely upon the question of Judge May- 
 nard's conduct in the preceding election, and it was 
 not easy for the average voter to apprehend the is- 
 sue understandingly, and, even if understood, it was 
 susceptible of different interpretations, and of 
 plausible argument against any misconduct on 
 Judge Maynard's part. In fact, the issue was so 
 obscure that it seemed to have little effect upon 
 Judge Maynard's chances. But it was wonderful 
 to contemplate the arousal of public sentiment upon 
 the general proposition that a candidate for judi- 
 cial honours must be above suspicion, and that no 
 man should be elected to a judgeship who was not en- 
 
152 LANDMARKS OF A LAWYER'S LIFETIME 
 
 tirely free from reproach of any kind. Mr. Bart- 
 lett did not at first seem to have even a fighting 
 chance, but, as the canvass proceeded, and Judge 
 Maynard's conduct was discussed, his chances 
 faded, and Mr. Bartlett's increased until election 
 day arrived, when Mr. Bartlett was elected by one 
 hundred thousand majority. 
 
 Another instance of this kind occurred about 
 twenty years ago in the Seventh Judicial District, 
 when the late John H. Camp, of Lyons, was nomi- 
 nated for Justice of the Supreme Court under cir- 
 cumstances which seemed to justify the imputation 
 that it was accomplished by party methods and ma- 
 chinery designed to thwart the free and unrestrained 
 action of the nominating convention. This led to 
 an independent movement resulting in the nomina- 
 tion, as Mr. Camp's opponent, of Judge James L. 
 Angle, an accomplished lawyer of Rochester and a 
 Democrat. The Seventh District being largely Ee- 
 publican, a nomination was ordinarily equivalent to 
 an election, and it was generally supposed that the 
 Republican majority could not be overcome. But 
 the popular mind finally became educated, and its 
 conscience aroused, and Judge Angle was elected by 
 a very large majority. 
 
 The same thing happened on the last election of 
 Judge John Clinton Gray to the Court of Appeals. 
 He had served in that court, with a great deal of 
 ability, for a term of fourteen years. On the same 
 bench, a Supreme Court Justice was serving under 
 an assignment by the Governor. Judge Gray was a 
 Democrat and received the nomination; the former 
 
POLITICAL INFLUENCES AND UPHEAVALS 153 
 
 was a Eepublican, and was nominated by the Bepub- 
 licans. It was generally expected that the Eepubli- 
 can ticket would prevail; the result would be the 
 displacement of Judge Gray. This would mean the 
 deprivation of New York, with its large interests, 
 from being represented on the bench, except by a 
 single justice, while the election of his opponent to 
 that eourt, and the consequent creation of a vacancy 
 in the Supreme Court in the Seventh District, would 
 afford a very excellent opportunity for the politi- 
 cians of the Seventh district to secure the appoint- 
 ment and election of a new Supreme Court Judge. 
 The injustice to Judge Gray and to the City of New 
 York, if this were accomplished, was manifest. It 
 seemed to be a political scheme to oust a faithful 
 judge for no good purpose. The nominations having 
 been made, the matter remained in abeyance, no one, 
 apparently, taking sufficient interest in Judge Gray's 
 candidacy to bring the matter to the attention of the 
 public. Having frequently appeared in the Court 
 of Appeals before Judge Gray, it occurred to me 
 that something should be done in his interest. Al- 
 though a Eepublican, I felt it my duty, as well as 
 pleasure, to assume the responsibility of presenting 
 at a meeting of the Association of the Bar a resolu- 
 tion calling attention to this subject in as forcible 
 terms as I could command. The resolution was 
 presented and adopted, and, of course, the following 
 morning the New York City papers gave a very 
 prominent place to an account of the action of the 
 Bar Association. This was exactly what I in- 
 tended, and it spread like wild-fire into all parts of 
 
154 LANDMARKS OF A LAWYER'S LIFETIME 
 
 the State and was taken up by the press, by which 
 the action of the Bar Association was favourably 
 commented on, and Judge Gray's election persist- 
 ently advocated, with the result that, notwithstand- 
 ing a large majority for the other Republican candi- 
 dates, Judge Gray was triumphantly re-elected. 
 
 At the same time there was a contest in the Fifth 
 Judicial District between Watson M. Rogers, an in- 
 dependent Democrat, and John C. Davies, who had 
 been nominated for Justice of the Supreme Court 
 by a convention dominated by machine methods, re- 
 sulting in a protest. Mr. Rogers was nominated as 
 an independent, and his nomination was endorsed 
 by the Democracy. The Fifth District was so 
 heavily Republican that there seemed to be little 
 likelihood of success, but popular sentiment in 
 favour of Mr. Rogers became so strong that he was 
 elected over Mr. Davies by almost, if not quite, as 
 large a majority as the Republican candidate 
 usually received over a Democrat. In this election 
 there was probably a change of over ten thousand 
 votes. 
 
 Another very recent instance is that of Judge 
 Garretson, in the Second Judicial District, who had 
 served a term of fourteen years and was refused a 
 unanimous nomination, although his associates on 
 the bench, who were also candidates for re-election, 
 had received it, the Democrats refusing it to Judge 
 Garretson, to make way for an "organisation" can- 
 didate. The advantage seemed to be entirely in 
 favour of the latter, as he was not only nominated by 
 the Democrats, but supported by an independent 
 
POLITICAL INFLUENCES AND UPHEAVALS 155 
 
 organisation; yet, notwithstanding this, the clear- 
 headed and right-thinking citizens of the Second Dis- 
 trict rallied to Judge Garretson's support and he 
 was re-elected by a moderate majority. It was in- 
 deed a great tribute to Judge Garretson who, in his 
 career on the bench, had proved himself a faithful 
 and competent judge. 
 
CHAPTER VI 
 
 THE ASSOCIATION OF THE BAR 
 
 The Association of the Bar has been a potent 
 influence in the life of the New York lawyer. Al- 
 though the first of its kind, associations of the bar 
 have existed since early times. The Benchers of the 
 Inns of Court in England, an ancient association of 
 the barristers of the English courts, is an instance 
 of this character, exerting a beneficial influence upon 
 the English bar, and has proved to be a wholesome 
 and commanding force in maintaining the rights, 
 upholding the dignity and elevating the tone of 
 courts, as well as lawyers generally. Its social in- 
 fluence is not the least among its advantages. It is 
 composed of the flower of the English bar. Election 
 to it is in itself a distinction. It brings its members 
 into friendly intercourse at its meetings in its an- 
 cient hall, in the Temple, frequented by the greatest 
 lights of the bench and bar of England. It was in 
 these meetings that Mr. Choate, our recent Ambas- 
 sador to St. James, the sole recipient from the 
 American bar of election as a Bencher, passed, 
 as he has told us, in the company of such distin- 
 guished men as the Lord Chancellor, (Lord Hals- 
 bury) the Lord Chief Justice, (Lord Alverstone) 
 and other lights of the English bench and bar, the 
 most delightful evenings of his sojourn in England. 
 
 156 
 
THE ASSOCIATION OF THE BAR 157 
 
 But it is not by its social attractions that it is 
 chiefly known, for at critical periods it has proved 
 to be a bulwark of protection in the administration 
 of justice, and in preserving the rights and priv- 
 ileges of the English bar. 
 
 In more recent times the Incorporated Law So- 
 ciety, embracing the solicitors of the English courts, 
 has exerted an equally beneficial influence in further- 
 ing useful reforms in law procedure, and in pre- 
 serving by its discipline the moral tone of that large 
 body of lawyers whose function it is to deal with 
 the business community. 
 
 Associations of lawyers have, since the earliest 
 times, existed in our own country for the mainten- 
 ance of a high standard of legal knowledge on the 
 part of applicants for admission to the bar, and for 
 the protection of their rights, especially in Colonial 
 times, when lawyers were regarded as the enemies 
 of society, and organised efforts were made through 
 legislation and otherwise, to drive them from the 
 practice of their profession. Such an association 
 existed in New York from 1744 to 1770. Lofty and 
 patriotic impulses led to its formation. The ever 
 increasing encroachments of the British crown in 
 the exercise of the King^s prerogative was, perhaps, 
 the moving cause of its formation, and the resistance 
 of the bar to these encroachments culminated in the 
 success of its endeavours. In 1763, the then Gover- 
 nor, Cadwalader Golden, undertook to enforce the 
 rule that the Governor and King's Council could re- 
 view upon appeal the facts found by a jury, and 
 nullify the verdict. The Associated Lawyers rose in 
 
158 LANDMARKS OF A LAWYER'S LIFETIME 
 
 opposition, and when the question was to be finally 
 tested, he could find no lawyer to undertake to argue 
 it in his behalf. He assailed the Association as a 
 dangerous influence, tending to enlarge the powers 
 of popular government by depreciating the powers 
 of the crown, and suggested measures intended to 
 end the domination of lawyers. Surely all honour is 
 due to the sturdy patriots of the bar who not only 
 jeopardised the pursuit of their profession but also 
 their lives, in resisting the tyranny of the king, and 
 his officers. 
 
 In these early times, however, associations of law- 
 yers were by no means generous in their attitude 
 toward those seeking admission to the bar. By the 
 adoption of rules to prevent competition, they ex- 
 cluded from service in their offices those who con- 
 templated the practice of their profession, with the 
 result that considerable numbers of American stu- 
 dents were driven to England to obtain legal train- 
 ing in the Inns of Court. It is related of John Jay, 
 our first Chief Justice of the Supreme Court that, 
 due to this rule, he was on the point of departure 
 for England to pursue his studies in the Inns of 
 Court when the ban was removed, enabling him to 
 study law in his native land. However, this illiberal 
 spirit was by no means a prominent characteristic, 
 but probably an exceptional manifestation, which had 
 a substantial foundation of justice to their profes- 
 sion, and protection for the bar. Societies also 
 flourished in these early times for the discussion of 
 legal subjects, some of which acquired great prom- 
 inence, such as "The Sodality" in Massachusetts, 
 
THE ASSOCIATION OP THE BAR 159 
 
 and "The Moot" in the State of New York, the 
 latter being of such consequence that, at times, the 
 judges submitted to it questions for discussion which 
 were under consideration by the courts. 
 
 "Union is Strength" found remarkable exempli- 
 fication in the organisation of the Association of the 
 Bar. It was the product of troublous times. It 
 proved to be not only a shield, but a sword. Corrupt 
 influences had been at work in the administration 
 of justice, and pervaded the Bench, manifested, how- 
 ever, by only a few of its occupants. Notwith- 
 standing a large number of as pure minded and able 
 lawyers as have appeared at our bar at any time, 
 the bar as a whole had degenerated. The influence 
 of the Tweed regime was felt in the selection of the 
 judges and the administration of justice. Judicial 
 patronage was bestowed upon political favourites. 
 Counsel were retained because of their influence with 
 particular judges. The courts were used for politi- 
 cal purposes, and to further the interests of political 
 parties. It was an era of receiverships, in which 
 the receiver was a prominent politician, and of ex- 
 travagant receivers' fees. Litigations such as the 
 famous Erie litigation in 1870, consisting of a bom- 
 bardment of ex 'parte injunction orders^ orders ap- 
 pointing receivers, orders by one justice vacating 
 ex parte orders made by another justice, midnight 
 applications for orders of various descriptions, and 
 of the most far-reaching character, all of them in- 
 volving the sharpest kind of practice, had brought 
 the courts and profession into disrepute. The testi- 
 mony of the impeachment trials of 1871 furnishes 
 
160 LANDMARKS OF A LAWYER'S LIFETIME 
 
 abundant evidence that this picture is not over- 
 drawn. As a necessary consequence, the courts and 
 the judges fell under suspicion, which was also time 
 of certain practitioners before certain judges, when 
 the decision was a foregone conclusion. I recall one 
 case in my father's office, in which owing to the gross 
 favouritism of a particular judge, and his disregard 
 of ordinary rules of law and elementary principles 
 of justice, it became necessary to take advantage of 
 an Act of Congress passed as a war measure, applic- 
 able more particularly to the reconstruction period, 
 to apply for and procure a removal of the case from 
 our State Court to the United States Court on the 
 ground of "local prejudice and corruption." 
 
 Facility in obtaining admission to the bar was also 
 a scandal of those times. Instances were not want- 
 ing of admissions to the bar without any examina- 
 tion whatever; one of the judges in particular tak- 
 ing to himself the right to admit anyone he pleased 
 without examination as to qualifications, and the ex- 
 aminations when had were little more than formal- 
 ities. There was almost no attempt to ascertain the 
 qualifications of an applicant, and more often than 
 not a whole class of applicants was admitted. 
 
 These influences resulted quite naturally in the 
 degeneracy of the bar. The evils which had brought 
 this about did not appear to have been of slow 
 growth, but sprang up quite suddenly with the ad- 
 vent of the Tweed regime. The attack was acute 
 and severe, but the lawyers proved equal to the oc- 
 casion. It could not be otherwise. It was impos- 
 sible that the high-minded and public-spirited law- 
 
THE ASSOCIATION OP THE BAR 161 
 
 vers of the time should lie down supinely under such 
 corrupt influences. 
 
 It was amid such circumstances, and exactly at the 
 right time, that the Association of the Bar of New 
 York, the progenitor of all succeeding associations 
 of the bar in this country, came into being. In De- 
 cember, 1869, a call, signed by eighty-five members 
 of the bar, was issued, which stated that "the under- 
 signed members of the bar of the City of New York, 
 believing that the organised action and influence of 
 the legal profession properly exerted, would lead 
 to the creation of more intimate relations between 
 its members than now exist, and would, at the same 
 time, sustain the profession in its proper position 
 in the community, and thereby enable it in many 
 ways to promote the interests of the public." A 
 committee was appointed to call a meeting for the 
 organisation of the proposed association. 
 
 It must not be supposed, however, that this pro- 
 posal for the organisation of an Association of the 
 bar had in contemplation an aggressive movement 
 against the Tweed regime. While it is true that 
 corrupt influences upon the bench and bar were well 
 recognised, the time had not arrived, apparently, 
 for Concerted action of an aggressive character. 
 The need of organisation of the bar was manifest, but 
 the direction in which the organisation should act 
 to remedy existing evils was at the time not clear. 
 Undoubtedly, there was a deep-seated conviction 
 among the better element of the bar that sooner or 
 later it would be necessary to take radical measures 
 for the reform of existing abuses, although the or- 
 
162 LANDMARKS OF A LAWYER'S LIFETIME 
 
 ganizers of the movement were careful to disavow 
 any intention at that time to take aggressive action 
 in any direction. The original objects of the Asso- 
 ciation did not include schemes of important reform, 
 although many of its originators foresaw what was 
 coming, and the course the Association would have 
 to take, which if taken at that particular time would 
 have seemed precipitate. The object of the Associa- 
 tion, as expressed at its formation and embodied in 
 its articles of incorporation, was "for the purpose 
 of maintaining the honour and dignity of the pro- 
 fession of the law, of cultivating social relations 
 among its members and in increasing its usefulness 
 in promoting the due administration of justice." 
 
 But the Association was soon impelled toward a 
 course of action of the most radical and aggressive 
 description, which it pursued fearlessly and relent- 
 lessly until its efforts were crowned with complete 
 success. On February 13th, 1870, an incident oc- 
 curred which made all hesitation as to radical and 
 aggressive measures impossible. The Erie litiga- 
 tion between Fisk and Gould on one side and the 
 Erie Railroad Company on the other, was at its 
 height, and feeling between the respective partici- 
 pants and their adherents ran high. Dorman B. 
 Eaton, a prominent member of the bar and one of 
 the counsel in that litigation, had aroused the ani- 
 mosity and resentment of opposing interests. The 
 entire profession and the community at large were 
 startled and aroused by an unprovoked assault 
 upon him, in which he was beaten down by assassins 
 and his life almost destroyed. Mr. Eaton was one 
 
THE ASSOCIATION OF THE BAR 163 
 
 of the most upright and high-minded lawyers at the 
 bar. He was a public-spirited ' citizen, for years 
 deeply interested in promoting the cause of civil 
 service reform, and the author of a work which 
 was a valuable contribution to the literature on that 
 subject. He was cultivated and refined, always ani- 
 mated by a high sense of honour in the performance 
 of professional and public duty, and the assault 
 upon him profoundly stirred his professional 
 brethren. The first meeting of the Association of 
 the Bar of which there is a record was held in the 
 Studio Building, on February 15th, 1870. At this 
 time the call bore two hundred and thirty-one signa- 
 tures, which was soon augmented by the admission 
 of two hundred and twenty-four members at one of 
 its earliest meetings, and its numbers have continued 
 to increase until its present membership has risen 
 to upwards of two thousand. Almost the first action 
 taken at the initial meeting was to offer a reward of 
 $5,000 for the arrest and conviction of Mr. Eaton's 
 assailants. Unfortunately, they were never appre- 
 hended. 
 
 Events moved rapidly with the new association. 
 Almost immediately a house at No. 20 "West Twenty- 
 Seventh Street, was purchased as the home of the 
 Association, and in it, on June 28th, 1870, the first 
 meeting was held. 
 
 William M. Evarts had been elected President, 
 and such he continued to be for the succeeding ten 
 years. The work of organisation was perfected, 
 and on October 4th, 1870, three committees were ap- 
 pointed on motion of Wheeler H. Peckham, always 
 
164, LANDMARKS OF A LAWYER'S LIFETIME 
 
 in the lead in promoting the honour and usefulness 
 of his profession and in the work of civic reform. 
 These committees have remained until the present 
 time, and are known as the committees on the 
 Amendment of the Law, the Judiciary and Griev- 
 ances. Within the next two months the Association 
 directed its attention to admissions to the har, and a 
 committee was appointed to deal with this import- 
 ant subject. Its efforts resulted later in legislation 
 in accordance with its recommendation, conferring 
 upon the Court of Appeals authority to make rules 
 for the admission of attorneys, and creating a State 
 Board of Examiners, to which should be committed 
 the duty of ascertaining by examination the qualifi- 
 cations of applicants for admission. The action of 
 the Bar Association has resulted in a well devised 
 and completely organised system of bar examina- 
 tion, the beneficial effects of which upon the bar at 
 large cannot be overestimated. 
 
 The disclosures in the New York Times during the 
 year 1871 not only aroused public sentiment to the 
 dangers which menaced the city from the extrava- 
 gance and corruption of its public officials, but the 
 arrogant attitude of the Tweed regime toward the 
 courts and the judiciary drew attention, as never 
 before, to the perils which confronted the adminis- 
 tration of justice. The Association was at this time 
 unincorporated, with no power or influence other 
 than such as inhered in a voluntary organisation of 
 lawyers. But those composing it were fearless in 
 the face of public danger. A committee of citizens, 
 known as the Committee of Seventy, had been ap- 
 
THE ASSOCIATION OP THE BAR 165 
 
 pointed to use their efforts in an attempt to wrest 
 the control of the city from the band of plunderers 
 and thieves who occupied positions of power in the 
 city government. It was indeed fortunate that the 
 bar had organised, unconscious of the tremendous 
 conflict in which it was soon to engage. The Com- 
 mittee of Seventy had thus a co-operating force, the 
 value of which could not be over-estimated. The 
 Association recognised its duty and its opportunity, 
 and exerted all its powers to the accomplishment of 
 the objects for which the Committee of Seventy was 
 formed. In this conflict, the menace to the adminis- 
 tration of justice was a matter of pith and moment, 
 and the Bar Association at its meeting on October 
 10th, 1871, called attention in stirring terms to the 
 necessity for the election of suitable judges, and a 
 week later appointed a committee of fourteen to con- 
 fer with the various political organisations for the 
 purpose of securing proper nominations. Tam- 
 many Hall, confident in its assumption of power, 
 nominated for Justice of the Supreme Court a totally 
 unworthy candidate. The Association of the Bar 
 on November 1st, adopted resolutions condemning 
 the nomination in the strongest terms, and declaring 
 in unmistakable language the unfitness of the nomi- 
 nee. This combination of right-thinking citizens, 
 under the lead of the Committee of Seventy, and of 
 the lawyers under the leadership of the Association 
 of the Bar resulted in an overwhelming victory; the 
 complete overthrow of the Tweed regime and the 
 emancipation of the judiciary, which has become a 
 matter of history, too familiar to require repetition. 
 
166 LANDMARKS OF A LAWYER'S LIFETIME 
 
 But the greatest and most important part of the 
 work of the Association was still before it. The elec- 
 tion had no sooner terminated than, at a meeting of 
 the Association on November 14th, 1871, a resolu- 
 tion was adopted, calling upon the Judiciary Com- 
 mittee to inquire into the integrity of the adminis- 
 tration of justice in our courts This committee was 
 not slow in acting, for on January 4th, 1872, resolu- 
 tions and a memorial were adopted for presentation 
 to the legislature, signed by a committee whose 
 names deserve to be perpetuated as lawyers without 
 fear in the interests of their profession. They were 
 Wheeler H. Peckham, Noah Davis, John Slosson, 
 Gilbert M. Spier, William M. Prichard, James C. 
 Carter and Joshua M. Van Cott. The following 
 extract shows the spirit and sentiment of the me- 
 morial : 
 
 "Your memorialists further represent that for several 
 years last past the administration of justice in the city, 
 both civil and criminal, has failed to command that meas- 
 ure of public confidence which is essential that it may ac- 
 complish its beneficial ends; that the integrity of several 
 high judicial officers occupying places upon the bench in 
 said city has fallen into distrust; that the profession and 
 the public have become, and are becoming, more and more 
 alarmed at the course and tendency of judicial actions, and 
 the general suspicion has ripened into conviction that the 
 courts of justice have been in many instances instruments 
 of promoting the frauds and injustice they were created to 
 repress and punish." 
 
 This was, indeed, aggressive action requiring un- 
 questionable courage. The course of this commit- 
 
THE ASSOCIATION OF THE BAR 167 
 
 tee, as well as of the Association that sanctioned it, 
 loses much of its significance, to our minds, as we 
 contemplate it in the light of the victory which fol- 
 lowed. The implicated judges were upon the bench. 
 The members of this committee and their profes- 
 sional brethren in the Association were active prac- 
 titioners, and were appearing constantly before the 
 courts and before these very judges. They could 
 expect nothing but unfriendliness, and their profes- 
 sional appearances met with no favour. They were 
 risking their professional practice and jeopardizing, 
 to some extent, the interests of their clients in under- 
 taking the herculean task that was before them. 
 Dealing as was necessary with a legislative body, it 
 was by no means certain but, rather, very uncertain 
 whether the memorial would meet with a favour- 
 able reception. But they were not the men to 
 flinch from the duty which devolved upon them, ai^d 
 the memorial was favourably received. It was fol- 
 lowed by a letter from the Speaker of the Assembly 
 informing the Association of the appointment of 
 Judge George F. Comstock and Joshua M. Van Cott, 
 as counsel selected by the legislature, and requesting 
 the assistance of the Bar Association. Then came 
 the appointment of Messrs. Joshua M. Van Cott, 
 John E. Parsons and Albert Stickney as counsel to 
 represent the Association. Then was set on foot 
 the historic impeachment trials which resulted in 
 the impeachment of one judge, the removal of an- 
 other by concurrent resolution, and the resignation 
 of a third while under impeachment charges, and 
 before trial. 
 
168 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Through it and its friends it contributed a fund 
 of over $30,000 to meet the expenses of the trial, and 
 at the close of the proceedings the lawyers named 
 received well deserved recognition in a resolution 
 of thanks to ' ' the counsel who at their bidding, have 
 recently conducted to a successful issue the most 
 important trial that has ever taken place in the his- 
 tory of our jurisprudence, and for the faithful, fear- 
 less and able performance of the duty devolved upon 
 them." The Bar Association proved, indeed, "a 
 mighty power for the pulling down of strongholds" 
 of corruption in the courts. If the Association of 
 the Bar had never in its career performed any other 
 service of a public character, its existence would 
 have been amply justified by the tremendous service 
 which it rendered to the administration of justice 
 during these stirring times. 
 
 There has been no occasion since then, and it is 
 hoped that none will ever arise to call forth its 
 mighty power in correcting abuses in the courts 
 which it exercised during this period. The unfav- 
 ourable results of an elective judiciary led it, in 
 1873, to exert its influence for a return to an appoint- 
 ive judiciary, and a constitutional amendment for 
 this purpose was submitted to the people, but it was 
 defeated by popular vote. Its policy with respect to 
 judicial nominations has not been one of active inter- 
 ference. Its position in this respect was defined by 
 the Association in 1881, in a resolution which stated 
 that "any active participation in the canvass for 
 judicial offices would be distasteful to us, but it has 
 been necessary in the past as it may be necessary in 
 
THE ASSOCIATION OF THE BAR 169 
 
 the future. If so, we shall not shrink from it. We 
 have felt justified in taking a part in the impeach- 
 ment and removal of two judges. We cannot doubt 
 that this Association will think it within its province 
 to take all steps necessary to insure the choice of 
 suitable successors." 
 
 There have, however, been notable occasions when 
 action affecting the judiciary became necessary. 
 Such was the case of Judge Maynard, whose nomi- 
 nation resulted in an investigation by the Associa- 
 tion, and condemnation of his conduct, which was 
 followed by his defeat ; and also in the case of Judge 
 Gray, who was refused a nomination by the Eepubli- 
 can party, which being in the majority, sought to 
 supplant him, but he was triumphantly elected. The 
 results in both of these cases were due, almost en- 
 tirely, to the firm stand taken by the Association of 
 the Bar. Ever since, through its committees on the 
 judiciary and on judicial nominations, it has exer- 
 cised supervision over nominations, and while pur- 
 suing its policy of non-participation, it has exerted 
 its influence to some extent, at least, to promote the 
 eflSciency of the judiciary. It has also taken a lib- 
 eral position as to compensation of the judges, espe- 
 cially those in the United States Courts, whose sal- 
 aries have long been regarded as inadequate, by urg- 
 ing their increase upon Congress, and its efforts 
 have been actively employed in retaining on the 
 bench judges who have given satisfaction, especially 
 in the Court of Appeals and in the Appellate Divi- 
 sions, and protecting security of tenure in judicial 
 office of aU judges who have proved themselves com- 
 
170 LANDMARKS OF A LAWYER'S LIFETIME 
 
 petent and useful. This it has always recognised as 
 a most important feature in the administration of 
 justice, and its efforts have borne fruit in the unan- 
 imous nomination by the political parties on several 
 occasions, without regard to political affiliations, of 
 judges who have served long and faithfully. It has 
 aroused popular sentiment in this direction, the influ- 
 ence of which will, in the future, be regarded with 
 greater frequency by the political parties. It is note- 
 worthy that its influence with respect to temporary 
 appointments to flU vacancies occasioned by death or 
 resignation has been recognised by recent governors, 
 who, in making such appointments have deferred 
 largely to the opinion of the Association, by submit- 
 ting to it for its approval or disapproval the names 
 of candidates under consideration. 
 
 In all matters affecting the judiciary and the ad- 
 ministration of justice in the courts, it has been 
 prompt to express its sentiments, and to advocate 
 the adoption of reforms and measures calculated to 
 remove the judges from corrupting influences, and 
 to increase the efficiency and elevate the dignity of 
 the courts. The subject of assessments by political 
 parties on candidates for judicial office received, 
 under a resolution introduced by Mr. Wheeler H. 
 Peckham, in December, 1880, careful consideration 
 resulting in strong condemnation of the prevailing 
 practice requiring from candidates for judgeships 
 the payment of large contributions to political par- 
 ties, virtually the price of the nomination. The agi- 
 tation of this subject and the stand taken by the Bar 
 Association was undoubtedly instrumental in bring- 
 
THE ASSOCIATION OF THE BAR 171 
 
 ing to the attention of the public the corrupting 
 influence of political assessments upon candidates 
 for public office generally. It was followed by legis- 
 lation, now existing, to prevent excessive contribu- 
 tions, and requiring a disclosure of the amounts con- 
 tributed, and imposing severe penalties for its viola- 
 tion. Unfortunately, however, notwithstanding the 
 best devised schemes of legislation, it is undoubtedly 
 true that, by indirect methods, large contributions by 
 candidates for judgeships continue to be made, and 
 it is doubtful if by any scheme of legislation the evil 
 of political assessments can be entirely removed. 
 
 In minor matters as well, involving courtesy on 
 the part of the bar toward the judges, and in customs 
 calculated to increase the dignity of the courts, it 
 has borne a useful part. Informality in opening the 
 sessions of the courts, and in the conduct of the bar 
 toward the judges, was indeed marked and notice- 
 able. Only in one court, the Supreme Court of the 
 United States, were any formalities observed. 
 There the crier of the court opened its sessions with 
 a dignified proclamation, and the bar stood while the 
 judges, robed in their silken gowns, assumed their 
 places on the bench. But even in such dignified tri- 
 bunals as our own Court of Appeals, there was noth- 
 ing of the kind. The bar did not even stand, and 
 the judges wore no distinguishing badge of office. 
 In 1876, however, action was taken by the Bar on 
 motion of Judge Comstock, in the Court of Appeals, 
 to pay the courtesy of standing as the court con- 
 vened. This met with a hearty response in its 
 favour by the association, and this courteous act was 
 
172 LANDMAEKS OP A LAWYER'S LIFETIME 
 
 not only advocated with respect to the Court of Ap- 
 peals, but also with respect to the General Term of 
 the Supreme Court, and the General Terms of the 
 Superior Court of the City of New York and of the 
 Court of Common Pleas. This courteous recog- 
 nition of the judges has extended until in every 
 court room, on the entrance of the judge, the mem- 
 bers of the bar stand until the judge is seated, who, 
 before taking his seat, often acknowledges the 
 courtesy of the bar by a gracious bow. The assump- 
 tion of the black silk gowns by the judges of the 
 Court of Appeals met with approval from the Bar 
 Association, and when the Appellate Divisions were 
 organised they, too, followed the example of the 
 Court of Appeals, and at the present time every 
 judge, even down to the police magistrate, appears 
 in a black gown as the badge of his judicial office. 
 
 Great as the influence of the Association has been 
 upon the judiciary and the practical administration 
 of justice in the courts, it has been, perhaps, even 
 greater in its less conspicuous influence and action 
 upon legislation affecting the body of the law, and 
 upon the bar itself. The two most important com- 
 mittees, I would say, are the Committee on the 
 Amendment of the law and the Committee on Griev- 
 ances. The first of these deals with all the various 
 schemes of legislation affecting the body of the law. 
 Its work has been of inestimable value in connection 
 with the revisions of the constitution, and in the 
 several constitutional conventions its members 
 formed a powerful element. They were the voice 
 through which the Association of the Bar spoke, 
 
THE ASSOCIATION OP THE BAR 173 
 
 advocating and procuring the adoption of constitu- 
 tional provisions affecting beneficially the jurisdic- 
 tion of the courts and the administration of justice. 
 This is also true of its work of statutory revision 
 designed to bring into harmony and orderly arrange- 
 ment the whole body of legislation, by the enactment 
 of general laws, and the repeal of the scattered and 
 oft-times conflicting legislation of many years, the 
 result of which is to be found in the Consolidated 
 Laws recently enacted. 
 
 An important part of its labours was at a time 
 when an attempt was made to adopt a civil code, 
 which had for its purpose the codification of the 
 whole body of the civil law. The advocates of the 
 civil code were energetic and untiring, and at one 
 time were so near success that the code was enacted 
 by both houses of the Legislature, and it only 
 awaited the signature of the governor, to become a 
 law. Upon the civil code the Association waged un- 
 relenting warfare, with defeat apparently staring it 
 in the face. Nothing could have prevented the code 
 from becoming a law except the powerful influence 
 of the Association, which, by a masterly presenta- 
 tion through its committee of the objectionable fea- 
 tures, and the far reaching and unfavourable conse- 
 quences of its adoption, induced the Governor to in- 
 terpose his veto. This was the culmination of the 
 efforts of the code advocates, and in recent years 
 nothing has been heard of it. The annual crop of 
 amendments to the Code of Civil Procedure has also 
 added to the laborious work of the committee, while 
 such subjects as the Bankruptcy Law, the laws re- 
 
174 LANDMARKS OF A LAWYER'S LIFETIME 
 
 lating to land transfers, to divorce, and to corpora- 
 tions have resulted not only in the enactment of im- 
 portant beneficial legislation but, more frequently, 
 in preventing legislative measures which would 
 have had the effect of sowing a crop of thorns. 
 
 The Grievance Committee has been an instrument 
 of the greatest usefulness to the profession. Until 
 the formation of the Bar Association there was no 
 method by which unfaithful lawyers could be 
 brought to the bar of justice except through indict- 
 ment, or the expensive method of procuring counsel 
 to prepare charges for presentation to the court. 
 Many a client, grievously wronged by a faithless law- 
 yer, has suffered in silence through inability, owing 
 to expense, to obtain redress. The G-rievance Com- 
 mittee meets this condition. It is open, without ex- 
 pense, to every client who has a grievance against 
 his lawyer. Frequent applications are made to it, 
 some of which are seemingly trivial, and proceed no 
 further. But, in numerous instances, the result of 
 its action is the presentation of charges, in the name 
 of the Association, to the Appellate Division of the 
 Supreme Court, the expense of which is not only 
 borne by the Association, but the members of the 
 Association hold themselves ready at all times, upon 
 the request of the Committee on Grievances, to act 
 as counsel for the Association in these proceedings 
 and they cheerfully undertake, without any compen- 
 sation whatever, and at considerable sacrifice of time 
 and inclination, the painful and disagreeable duty 
 of attending as counsel before the referee to whom 
 such proceedings are usually referred by the Appel- 
 
THE ASSOCIATION OF THE BAR 175 
 
 late Division, and act as trial counsel in the presen- 
 tation of the evidence, in the investigation and dis- 
 cussion of, at times, difficult questions of law, and in 
 the preparation of the brief for submission to the 
 referee and making an oral argument, and when the 
 referee makes his report, presenting it with such 
 argument as may be necessary to the Appellate Di- 
 vision. Such services, if paid for at the usual rate, 
 would command large compensation. But these 
 lawyers render such services as debtors to their pro- 
 fession. Until within about ten years the committee 
 was able, unaided, to perform its duty of investiga- 
 ting and dealing with the various grievances. But 
 the increasing number has since then required the 
 employment of salaried attorneys by whom the work 
 of investigation is performed. Its service in purg- 
 ing the bar of corrupt lawyers has been of the ut- 
 most importance, and its influence is far reaching 
 in maintaining correct standards of professional 
 conduct. 
 
 The Association of the Bar has had a tremendous 
 following. In almost every county of our State, and 
 in many of the counties of the various States of the 
 Union, will be found associations of the bar upon 
 substantially the same basis as our own. In its hall 
 was promulgated the idea of forming the New York 
 State Bar Association, which has had a flourishing 
 existence, and this in turn was followed by the Amer- 
 ican Bar Association, which embraces all the States 
 of the Union. There has been no more remarkable 
 development among lawyers, during the past forty 
 years, than that which has taken place in the forma- 
 
176 LANDMARKS OF A LAWYER'S LIFETIME 
 
 tion of associations of the bar, to create friendly 
 relations among the lawyers and to maintain a 
 high standard of legal attainment and of honour in 
 the profession. 
 
 The growth of the Association has been truly won- 
 derful. I have alluded to the fact that in June, 
 1870, the tirst meeting of the Association was 
 held in its home 20 West Twenty-seventh Street. 
 This was an ordinary house, 25 feet wide, whose 
 second story was sufficient to house its library. But 
 it was only two years later that the growth of the 
 Association demonstrated that it had outgrown its 
 first home. In April, 1875, it acquired more spa- 
 cious accommodation in a fine old mansion at No. 
 7 West Twenty-ninth Street, which stood upon a 
 plot of ground nearly 75 feet wide. In October, 
 1875, the first meeting of the Association was held 
 there, but its steady growth required, a few years 
 later, the erection of a hall for meetings, with in- 
 creased library accommodations, and the vacant por- 
 tion of its premises was utilized for this purpose. 
 But it was not long before its constantly increasing 
 membership, and additions to its valuable and im- 
 portant library, made it evident that even its new 
 surroundings would be insufficient for its accommo- 
 dation. Consequently, a new site was sought, and 
 at last found, at No. 42 West Forty-fourth Street, 
 on premises which extended through the entire block 
 to Forty-third Street. It is necessary to do no more 
 than to point to its magnificent building, with its 
 library of over one hundred thousand volumes, and 
 its membership of over two thousand. Here is to be 
 
THE ASSOCIATION OP THE BAR 177 
 
 found a veritable workshop of the law. In its spac- 
 ious library, where a large collection of text books 
 and digests, and a complete set of reports of every 
 State in the Union and of Great Britain and her 
 colonies, are to be found, may be seen, especially in 
 the evenings, a large gathering of lawyers ransack- 
 ing reports in search of precedents in support of 
 their carefully conceived arguments, or, maybe, in- 
 dulging in a quest for some legal principle upon 
 which to build up a cause of action or defense in 
 some doubtful case. 
 
 Among these seekers after truth will be seen here 
 and there an author of a forthcoming work, sur- 
 rounded with a mass of manuscript, and his desk and 
 the adjoining chairs piled up with an array of law 
 books. The library occupies the upper floor, and on 
 the floor below is to be found the stack room, its 
 shelves groaning with an accumulation of older and 
 less frequently consulted books, and a number of 
 private rooms, in one of which, it may be, some judge 
 is endeavouring to unravel a complicated case, or in 
 another a consultation is being held. The business 
 of the Association in its earlier days was transacted 
 largely in the ordinary meetings of the Association ; 
 but experience showed that these meetings savoured 
 too much of the town meeting quality, and gradually, 
 and almost imperceptibly, the Executive Committee 
 drew to itself most of the details of management of 
 the Association, until now its principal business is 
 performed by that committee, and its regular meet- 
 ings have become of less consequence, and have de- 
 clined in interest. Opportunities for social inter- 
 
178 LANDMARKS OF A LAWYER'S LIFETIME 
 
 course are found at its meetings, and occasional re- 
 ceptions to some distinguished court or judge, when 
 antagonists in the forum greet each other in the 
 friendly intercourse of brothers-in-law, and here are 
 also to be found the facilities of club life, excepting 
 the cuisine and sleeping rooms. Here again in its 
 business meetings an opportunity is presented to the 
 aspiring young lawyer to indulge in his first flights 
 of eloquence. But it is well that these meetings are 
 not public, and that reporters are carefully excluded. 
 It is a clearing house of the law, and ambitious law- 
 yers offer all sorts of impossible resolutions and 
 advocate the adoption of visionary measures, but 
 the combined intelligence and common sense of the 
 body at large results in little but talk, and no harm 
 is done. 
 
 One cannot fail to recall those early days when 
 the Association attacked the stronghold of the judic- 
 iary and, its efforts in that direction accomplished, 
 it pursued its inquiry into the conduct of lawyers 
 implicated by the testimony in the impeachment 
 trial; the memorable discussion respecting the con- 
 duct of David Dudley Field, when he escaped expul- 
 sion from the Association by a narrow margin ; the 
 interesting meeting when the venerable Charles 
 'Conor stood before the Association to meet the 
 attack upon his professional integrity in connection 
 with the Forest divorce case, followed by his request 
 for a committee of investigation which was ap- 
 pointed, by whom he received a complete vindica- 
 tion; and those memorable meetings on other occa- 
 sions when the conduct of judges, after investiga- 
 
THE ASSOCIATION OF THE BAR 179 
 
 tion, followed by appropriate resolutions, was under 
 discussion. 
 
 SometMng miglit, perhaps, be said about the Asso- 
 ciation "bore" who appeared in the earliest days 
 of the Association, and whose mantle has not wanted 
 a successor up to the present time. But even the 
 "bore" has not been without redeeming qualities, 
 for his ridiculousness has, at least, contributed to the 
 gaiety of the Association. There are others, al- 
 though not wearing the mantle, who are very near be- 
 ing entitled to it, and this is, perhaps, the reason 
 why the assembled lawyers often seem to be un- 
 feeling; — -that is to say, unfeeling toward the ambi- 
 tious brother who has some pet scheme to advance, 
 or who ventures to indulge his oratorical powers. 
 His slightest slip is so sure to provoke an outburst 
 of laughter, that for even a seasoned veteran of the 
 courts it is a considerable risk to stand upon his feet 
 in that critical assemblage. But, after all, these ap- 
 parently unfeeling manifestations are in fact, good- 
 natured, and he who by tact and good sense is able 
 to survive the period of friendly ridicule receives, 
 ultimately, a courteous and respectful hearing from 
 his critical brethren. 
 
CHAPTEE Vn 
 
 MR. JUSTICE FIELD 
 
 It was, indeed, an adventurous spirit that led Ste- 
 phen J. Field to forsake the refining influences of the 
 East and the valuable association with his brother, 
 David Dudley Field, and embark for California as 
 one of the pioneers of '49. He fell upon stirring 
 and strenuous scenes, calling for iron nerve and un- 
 flinching courage. Beholding him on the bench of 
 the Supreme Court of the United States in the calm 
 of judicial dignity, one would scarcely believe it was 
 in the disorderly school of the early days of Cali- 
 fornia that was developed those great qualities, per- 
 sonal and intellectual, which made him one of the 
 leading justices of his time. I doubt if any of his 
 associates on the bench could point to anything sim- 
 ilar to, or even approaching, the turbulent incidents 
 of his early years. Out of this, however, was 
 evolved a remarkable personality, physical and in- 
 tellectual. As he appeared upon the bench, his mas- 
 sive figure, his dignity of bearing, his refined 
 countenance, and the impression he gave of intel- 
 lectual power, were indeed striking. The cast of his 
 countenance, the spectacles he habitually wore, his 
 flowing beard and his figure draped with his silken 
 gown, gave him somewhat the appearance of a 
 learned Jewish Eabbi — one who might well have been 
 
 180 
 
MR. JUSTICE FIELD 181 
 
 selected to pose for a portrait of one of the prophets 
 of old. 
 
 In his pioneer life there could not have been edu- 
 cational or refining influences to develop that ele- 
 gant literary style to which I have alluded elsewhere, 
 with its pure and beautiful diction, unequalled, it 
 seems to me, by any of his associates ; it must rather 
 have been an inheritance from an educated ancestry 
 whix;h found expression not only in himself, but also 
 in his brother, Henry M. Field, the editor and au- 
 thor, and in David Dudley Field. 
 
 There was in Mr. Justice Field a combination of 
 intrepidity and determination of purpose which led 
 him to face personal danger with unquestionable 
 bravery, united with a refined and sensitive nature, 
 intellectual power, and a broad and comprehensive 
 knowledge of the law, which made him an unusual 
 and unique personality. His intrepidity was illus- 
 trated by an incident in his early days at Mai^^sville. 
 As a result of a personal controversy he had sent a 
 challenge to a duel, and the time and place were 
 fixed. Mr. Field appeared on the scene, and his 
 adversary had also been there, but his courage hav- 
 ing given out, he had disappeared. A few days 
 later Mr. Field happened to be gathering some wood 
 for Ms fire, when he was startled by a voice from be- 
 hind calling upon him to draw and defend himself. 
 He turned only to behold the adversary whom he 
 had challenged, pointing a revolver at him as if about 
 to shoot. Mr. Field never flinched, and looking at 
 him with steady gaze said: "You infernal scoun- 
 drel! You cowardly assassin 1 You come behind 
 
182 LANDMARKS OP A LAWYER'S LIFETIME 
 
 my back and put your revolver to my head and tell 
 me to draw. You haven't the courage to shoot. 
 Shoot and be damned." His coolness and intrepid- 
 ity, and his commanding personality, won the day — 
 his assailant lowered his pistol and walked away. 
 
 An incident to which I have already referred, in 
 connection with Mr. Justice Strong, revealed an- 
 other quality — that of a hot and impetuous temper; 
 with which was combined, however, a spirit of mag- 
 nanimity which led to reparation for any act which 
 heat and impetuosity might have occasioned. 
 
 It was not strange that upon his advent among the 
 early settlers in Marysville, California, where there 
 were no laws or organisations, judicial or civil, for 
 the enforcement of law and order, he should have 
 met with experiences calculated to try men's souls. 
 Almost immediately upon taking up his residence in 
 Marysville he was elected alcalde, the functionary 
 under the Mexican regime who settled disputes, so 
 far as possible, but with little power of enforcing 
 any of his decisions. But it was not long before 
 courts were organised as a part of the United States 
 government and his powers as alcalde terminated. 
 I am quite sure that no other Justice of the Supreme 
 Court of the United States could ever assert that he 
 had been disbarred, but this was true of Mr. Justice 
 Field. Upon the organisation of the court which 
 sat at Marysville, a certain Judge Turner was ap- 
 pointed, whose knowledge of the law was so inade- 
 quate, and whose personal habits were so open to 
 criticism, and whose personal qualities were so ob- 
 jectionable that the practitioners before him, of 
 
MR. JUSTICE FIELD 183 
 
 whom Mr. Field was one, received scant justice, and 
 were, besides, exposed to violent and arbitrary con- 
 duct. Mr. Field, in one of his cases, incurred the 
 displeasure of the Judge, which first found expres- 
 sion in a small fine, and, upon remonstrance, was 
 followed by an increased fine and imprisonment, 
 and finally by a further increased fine and impris- 
 onment, and a sentence of disbarment. This was 
 indeed a serious situation for Mr. Field, but he fol- 
 lowed it with legal proceedings to compel a removal 
 of the disbarment, and the restoration of his rights 
 as an attorney of the court. These proceedings are 
 reported in the first volume of California Reports, at 
 page 152, under the title of The People ex rel. Field 
 V. Turner, and terminated successfully for Mr. Field. 
 
 But Mr. Field was not through with Judge Tur- 
 ner. The following year Mr. Field was elected to 
 the legislature of California, and in this position he 
 not only framed laws respecting mining claims and 
 the administration of justice, which have ever since 
 stood as monuments of benefixjent legislation, but he 
 followed up Judge Turner by presenting to the legis- 
 lature a resolution for his impeachment. This, as 
 might have been expected, provoked hostilities on 
 the part of the adherents of Judge Turner. During 
 the pendency of the resolution, one of these, a legis- 
 lator by the name of Moore, undertook the defense 
 of Judge Turner. 
 
 In those days the pistol and bowie knife were gen- 
 erally carried, and in the legislature itself it was very 
 common to see the members as they assumed their 
 seats take out their pistols and knives and deposit 
 
184 LANDMARKS OP A LAWYER'S LIFETIME 
 
 them in their desks. Moore, upon the occasion of 
 his defense of Turner, proceded to his desk, took out 
 his pistols, cocked them, and laid them upon the desk 
 in front of him. He then proceeded to make a vio- 
 lent personal attack on Mr. Field, covering him with 
 abuse. Mr. Field did not immediately respond, but 
 determined to call Moore to account in a duel. He 
 therefore approached two of his friends to represent 
 him in the controversy, but they declined to be the 
 bearers of a communication to his adversary. How- 
 ever, it so happened that Daniel C. Broderick, an- 
 other son of New York, and also another forty-niner, 
 who subsequently became a Senator of the United 
 States, was a member of the legislature. Mr. 
 Field's disconsolate and woe-begone expression led 
 Broderick to inquire what the trouble was and Mr. 
 Field explained to him the need of some one to act 
 for him in his controversy with Moore. Broderick 
 gladdened Field's heart by undertaking the task, 
 and together they composed an appropriate epistle, 
 which Broderick conveyed to Moore. 
 
 Upon the receipt of the communication Moore 
 evaded the diflSculty by asserting that he was about 
 to be nominated for Congress, and that under such 
 circumstances he could not engage in a duel with Mr. 
 Field, but would be willing to meet him anywhere on 
 the street, and settle the difficulty. Broderick re- 
 sponded that Mr. Field would never consent to this, 
 and that if he refused Mr. Field's challenge the 
 latter would, in the legislature the next day, denounce 
 Moore as a coward. Moore responded that if Mr. 
 Field did this he would be shot in his place at his 
 
ME. JUSTICE FIELD 185 
 
 desk. Broderick responded that then others would 
 be shot too, and they separated, only to meet in the 
 legislative assembly the following day, when Field 
 and Moore were in their places, both of them armed. 
 Broderick, with others of Field's friends, sur- 
 rounded his desk, prepared for the encounter which 
 seemed inevitable. At the opening of the proceed- 
 ings both Moore and Field rose to their feet and ad- 
 dressed the speaker. The latter recognised Moore 
 first, who then proceeded to make a full and ample 
 apology for his remarks on the previous day, and 
 expressed regret at the occurrence, and the incident 
 was closed. 
 
 But the Turner matter was still pending and Brod- 
 erick, having proved a much-needed friend in one in- 
 stance, was to render a service of even greater value 
 a few days later. Field and Broderick happening to 
 be in a saloon to take a friendly drink, were stand- 
 ing together at the bar when Broderick suddenly 
 stepped in front of Field, pushed him violently back 
 through an open door and closed it. Field was at a 
 loss to understand Broderick 's action and resented 
 it, but Broderick explained to him that as they were 
 standing at the bar he had noticed Turner 's brother, 
 a desperate character, enter the saloon, and seeing 
 Field, he had drawn his revolver and was in the act 
 of leveling it, when Broderick, realising that Field 
 would be shot, stepped between them and pushed his 
 friend out of the place. This undoubtedly saved 
 Field's life, and for this act Field's gratitude to 
 Broderick never ceased. 
 •In 1857 Mr. Field was elected a judge of the Su- 
 
186 LANDMARKS OF A LAWYER'S LIFETIME 
 
 preme Court of California. One of his associates 
 on the bench was David S. Terry, a man of gigantic 
 proportions, of a hot and violent disposition, always 
 ready for a quarrel and constantly armed. They 
 served upon the bench together until Terry's retire- 
 ment. In 1863 Judge Field was appointed one of 
 the Justices of the Supreme Court of the United 
 States by President Lincoln. In the meantime 
 Terry had espoused the cause of Sarah Althea Hill, 
 who claimed to have been the wife of Senator Sharon 
 and, as such, entitled to a considerable part of his 
 large estate. The controversy, which was pending 
 in the United States Court, came before Mr. Justice 
 Field, and the time having arrived when he was to 
 deliver his opinion. Judge Terry and Sarah Hill, 
 who had meanwhile married Terry, were present in 
 the court room, the one armed with a knife and the 
 other with a pistol. Perceiving from the drift of 
 Mr. Justice Field's opinion that it was unfavourable 
 to her, Mrs. Terry became violent, and in the en- 
 deavours of the officers of the court to remove her 
 from the court room, Judge Terry undertook to de- 
 fend her, drew a knife and would have committed 
 murder had he not been restrained. Being impris- 
 oned by order of Mr. Justice Field for this fla- 
 grant offence, and confined in jail, he not only 
 applied for a writ of habeas corpus to obtain his 
 discharge from imprisonment — which, however, was 
 refused by the United States Supreme Court in an 
 opinion by Mr Justice Miller, in 128 U. S., 289— but 
 also commenced a systematic series of threats 
 against the person and life of Mr. Justice Field. 
 
MR. JUSTICE FIELD 187 
 
 Those threats were so open that reports of them 
 reached the Executive Department at Washington 
 and, at the same time, the newspapers of California 
 contained articles on the subject evincing a general 
 expectation of an assault upon the Justice. Terry 
 was a desperate ruffian in the early days of Cali- 
 fornia and had been ordered out of the State by the 
 Vigilance Committee. He resigned his place as 
 Chief Justice of the Supreme Court to fight a duel, 
 in which he slew Senator Broderick. An account of 
 this duel, as well as of those early days in California, 
 is in a volume of thrilling interest, containing an 
 account of the life of Senator Broderick. 
 
 Judge Terry always went armed with a knife. 
 He was habitually violent, implacable and danger- 
 ous where he thought he had any cause, and had the 
 reputation of making no idle threats — of carrying 
 out whatever violence he threatened. I have al- 
 luded to his stature as being gigantic. He was six 
 feet and three or four inches tall, and weighed two 
 hundred and fifty pounds. On Judge Field's return 
 to California in 1889, Terry expressed bitter and 
 malignant feeling toward him, and was not averse 
 to having anybody know it — in fact, he desired that 
 it should be known. These threats were so numer- 
 ous and so constant, that a deputy marshal named 
 Neagle was appointed by the Marshal, with instruc- 
 tions to accompany Mr. Justice Field, to stay with 
 him constantly, to watch Judge Terry and Mrs. 
 Terry on all occasions and especially when passing 
 Fresno, where the Terrys resided, and to protect 
 Mr. Justice Field from any injuries that Judge 
 
188 LANDMARKS OP A LAWYER'S LIFETIME 
 
 Terry and Ms wife might attempt to inflict upon 
 him. The appointment of a guard to attend and 
 protect him met with a vigorous protest from Mr. 
 Justice Field, and called forth the remark which he- 
 came current everywhere, evoking admiration and 
 respect, that: "When the judges shall be obliged to 
 go armed it is time for the courts to be closed. ' ' 
 
 As Mr. Justice Field and Neagle were travelling 
 on a train to San Francisco, Terry and his wife 
 boarded it at Fresno, and Neagle was immediately 
 informed of it. There was a state constable sta- 
 tioned at Lathrop, where the train was to stop for 
 breakfast, and Neagle telegraphed him to be on hand 
 on the arrival of the train. When the train stopped 
 Neagle proposed to Mr. Justice Field to take his 
 breakfast in the car, fearing a meeting with the 
 Terrys. But Mr. Justice Field decided to go into 
 the station as usual. After Mr. Justice Field and 
 Neagle had taken their places at the table, Terry 
 and his wife entered the room. As soon as they saw 
 Mr. Justice Field, Mrs. Terry started back to her 
 car to get her pistol. Terry continued to a seat at 
 a table, but, after a little, while Mr. Justice Field 
 was eating his breakfast, Terry stole upon him un- 
 observed, and dealt him a violent blow on the right 
 side of the head, and another on the left. Neagle, 
 who had been carefully watching him, stood up, ex- 
 claiming: "Stop sir, stop sir, I am an officer." 
 But Terry, instead of desisting, made a quick mo- 
 tion as if to draw his knife, with all the rage of his 
 nature concentrated in his countenance, whereupon 
 Neagle, believing there was no other way to save 
 
MR. JUSTICE FIELD 189 
 
 Mr. Justice Field, discharged his pistol at Terry 
 and killed him. 
 
 Of course, Neagle was placed under arrest, but 
 being brought before the court upon a writ of 
 habeas corpus to determine whether Neagle in pro- 
 tecting Mr. Justice Field from threatened assassina- 
 tion, which protection necessitated the shooting of 
 Terry, was acting under the authority of the 
 United States, the question was ably presented to 
 the Circuit Court in the first instance, and subse- 
 quently to the Supreme Court of the United States, 
 where the writ was sustained and the prisoner dis- 
 charged. The matter is reported in 135 U. S., 1. 
 
 During his long term of service as Justice of the 
 Supreme Court Mr. Justice Field participated in and 
 delivered opinions in cases involving not only those 
 great questions which arose out of the Civil War, but 
 upon other questions, civil, financial and corporate, 
 -which the marvellous development of our public 
 and commercial interests have occasioned. Mr. Jus- 
 tice Field has the distinction of having served m the 
 court a longer period than any other Justice — thir- 
 ty-four years and seven months. The great Chief 
 Justice Marshall came next, with thirty-four years 
 and five months ; Justice Story with thirty-three 
 years and ten months; Justice Wayne with thirty- 
 two years and six months; Justice McLean, with 
 thirty-two years and one month; Justice Washing- 
 ton, with thirty years and eleven months, and Justice 
 Johnson with thirty years and five months. Mr. Jus- 
 tice Field's career was indeed noteworthy, as evolved 
 from the conflicts of pioneer life, apparently the 
 
190 LANDMARKS OF A LAWYER'S LIFETIME 
 
 last place from which to expect those characteris- 
 tics and qualities which have made him a conspic- 
 uous and powerful personality in the roll of Jus- 
 tices of our highest national tribunal. 
 
CHAPTER VIII 
 
 WILLIAM M. EVARTS 
 
 At the organisation of the Association of the Bar 
 in 1870, Mr. Evarts was elected its first president 
 and was re-elected annually for ten years. He was 
 then about fifty-two years of age and easily the 
 most prominent member of the bar, with the excep- 
 tion of Charles 'Conor. 
 
 After becoming a member of the Bar Association 
 in 1872, I had many opportunities of observing Mr. 
 Evarts when he was presiding at the meetings, and 
 it is needless to say that he discharged his duties 
 with peculiar grace and ability, sometimes in situa- 
 tions of extreme difficulty. The Association, during 
 his early presidency, was kept in a ferment of in- 
 terest and excitement, in consequence of investiga- 
 tions connected with the impeachment proceedings 
 against two Supreme Court justices, and into the 
 conduct of Mr. David Dudley Field in connection 
 ■«ith the Erie litigations, which had furnished the 
 basis of some of the impeachment charges. 
 
 I do not remember any meeting of the Association 
 attended with more intense feeling, well suppressed, 
 however, by the members, than that in which the re- 
 port of the Committee on Grievances, of which my 
 father, Theron E. Strong, was chairman, was brought 
 up for consideration. The report, as I recall it, 
 
 191 
 
192 LANDMARKS OF A LAWYER'S LIFETIME 
 
 was of such a character that the consequences to 
 Mr. Field, if the recommendations had been adopted, 
 would have been of the most serious character. 
 The sentiment of the members and the general trend 
 of the discussion seemed to make it a foregone con- 
 clusion that action unfavourable to Mr. Field would 
 be taken. At the conclusion of the discussion and 
 just before the final vote was taken, Mr. Evarts 
 arose and, in a long and powerful address, charac- 
 terised by moderation, good sense, impartiality and 
 justice, sought to avert consequences which, in the 
 progress of time, would quite likely have been dis- 
 approved. Undoubtedly he took a lenient view of 
 Mr. Field's conduct, and, at the time, there was, I 
 think, a feeling prevalent that he had exerted his 
 great influence to shield Mr. Field from the censure 
 which many members of the bar thought was de- 
 served. The result of his address was to avert a 
 direct vote upon the resolution, a motion being 
 made, as I recall it, to lay it on the table, which 
 was carried by a majority vote and the proceedings 
 against Mr. Field terminated. 
 
 Mr. Evart's fame, then international by reason 
 of his masterly and successful defense of President 
 Johnson in the impeachment proceedings, was 
 largely increased during the next few years by the 
 ability he displayed and the great triumph he 
 achieved at Geneva, in the arbitration of the Ala- 
 bama claims. At this time he was probably the 
 most conspicuous Ajnerican lawyer. Happening to 
 be in Geneva in the summer of 1872 I saw him out 
 driving with his college class-mate and colleague 
 
WILLIAM M. EVARTS 193 
 
 as counsel, Morrison E. Waite, who shortly became 
 Chief Justice of the United States. The weight of 
 responsibility resting upon them in maintaining our 
 national honour before a tribunal charged with the 
 consideration of matters of supreme importance, 
 arising out of the unfriendly action of England in 
 one of the greatest crises in American history, was 
 indeed impressive, and the expression of their faces 
 indicated that they fully realised it. Evidently, how- 
 ever, even then, there were brighter and lighter mo- 
 ments when Mr. Evarts' wit would bubble over, as in 
 an instance given in Mr. Hackett's interesting book 
 on the Geneva Arbitration. Mr. Evarts had pre- 
 pared a document, expressed in language peculiarly 
 his own, and at times somewhat difficult to construe. 
 It had been for some time in the hands of translators 
 to transpose into polished French, but finally was 
 brought to him with the statement that the translat- 
 ors had found considerable difficulty, owing to the 
 phraseology, in expressing in suitable words his 
 precise meaning. After considering it for a time 
 Mr. Evarts commented : "I am indeed surprised at 
 the poverty of the French language." Those who 
 are familiar with his long and involved sentences 
 will appreciate, I think, the translator's difficulty. 
 
 These long sentences occasioned a display of wit 
 between Mr. Evarts and Judge Noah Davis at a din- 
 ner where both were guests. A short time pre- 
 vious, the General Term of the Supreme Court, of 
 which Judge Davis was the presiding Justice, had 
 made a rule on appeals from orders, often involving 
 matters of practice not decisive of the case, that 
 
194 LANDMARKS OP A LAWYER'S LIFETIME 
 
 the arguments of counsel for the respective parties 
 should be limited to fifteen minutes each, and the 
 Court was strict in enforcing it. Among the 
 speakers who preceded Judge Davis was Mr. Evarts, 
 and during his speech he had indulged in one of his 
 long and involved sentences. Judge Davis, when 
 called upon referred to Mr. Evarts' habit of utter- 
 ing long sentences, and remarked that he under- 
 stood Mr. Evarts had recently complained bitterly 
 of the enforcement of the rule in one of his own 
 cases, because the court had by expiration of the 
 fifteen minutes been compelled to stop Mr. Evarts 
 in the midst of his first sentence. This of course 
 occasioned much merriment, but Mr. Evarts was 
 equal to the occasion, for, retorting courteously, he 
 said that the incident to which Judge Davis referred 
 was as true as anything else of a similar character, 
 and he could readily understand why he was stopped, 
 because only criminals objected to long sentences. 
 
 Happening recently to relate this story to one of 
 his former partners, it was followed with one more 
 ludicrous in the same direction. There was once a 
 sportsman, he said, who was out bird shooting and 
 when the game rose he fired, but most singularly, the 
 usual report was followed by a rapid succession of 
 pop — pop — pop — until after the bird had disap- 
 peared. He was at a loss to understand the strange 
 occurrence and an examination of his gun revealed 
 nothing unusual. As the paper used as wadding 
 lay at a short distance, he looked at it to discover 
 whether there was anything in it which would ac- 
 count for the successive pops, and found that it con- 
 
WILLIAM M. EVARTS 195 
 
 sisted of a newspaper fragment, containing one of 
 the characteristically long sentences from a speech 
 of Mr. Evarts, and that quite naturally the succes- 
 sive pops continued until the sentence terminated. 
 
 It was my good fortune in my earlier days at the 
 bar to be junior counsel in an important case in 
 which Mr. Evarts was opposed as senior counsel, 
 and my opportunities for becoming acquainted with 
 his characteristics and legal capacity were excep- 
 tionally good. There was a wonderful grace and 
 charm in Mr. Evarts' personality. On inquiring 
 not long since of one of his old associates what Mr. 
 Evarts was like when he first knew him on coming 
 to New York; "Well," he said, "he was as thin as a 
 lath," and in illustration remarked that an intimate 
 friendship existed between Kufus Choate and Mr. 
 Evarts and that when Mr. Evarts happened to be in 
 Boston, or Mr. Choate in New York, they usually 
 called upon each other. When Mr. Evarts was re- 
 turning from his Windsor home to New York, he 
 stopped in Boston to make his customary call. Mr. 
 Evarts, he said, was anxious to accumulate a little 
 more adipose tissue and thinking that he had gained 
 somewhat during the summer, he asked Mr. Choate 
 whether he did not think he was getting a little 
 stouter. "Well," was the reply, "I must say I can- 
 not see any coUops of fat about you." 
 
 Mr. Evarts was thirty-seven years of age when 
 Mr. Joseph H. Choate entered his employment. 
 Mr. Choate told me that at this time Mr. Evarts had 
 a very engaging personality, and was most agree- 
 able as an associate but, he added, although a hard 
 
196 LANDMARKS OP A LAWYER'S LIFETIME 
 
 worker, Mr. Evarts did not resent it at all if other 
 people did as much of Ms work as possible. At 
 this comparatively early age, he remarked, Mr. 
 Evarts was already very prominent and the life of 
 every social function he attended. Eeferring to 
 the interchange that was customary between Mr. 
 Evarts and himself with respect to the Yale-Har- 
 vard dinners, — Mr. Evarts attending the Harvard 
 dinner if Mr. Choate attended the Yale, — a Harvard 
 dinner occurred at which Mr. Choate presided and 
 Mr. Evarts was present. "I am sure that I had 
 nothing new to say," said Mr. Choate, "and I am 
 equally sure that this was true of Mr. Evarts. I 
 therefore hit upon the plan of taking Harvard ex- 
 amination papers and putting questions from 
 them for the speakers to answer whom I wished 
 to call upon to respond. When the time came for 
 Mr. Evarts to speak, as representing Yale, I put to 
 him a question from one of Dr. Oliver "Wendell 
 Holmes' examination papers, the substance of which 
 was — 'Why is it that in the course of digestion the 
 coat of the stomach is not itself digested?' To 
 which Mr. Evarts replied that he was not a medical 
 man, and was, therefore, in no position to give a 
 scientific answer to the question, but applying to it 
 his own experience the answer was easy, because, 
 before he attended a dinner, especially a Harvard 
 dinner, he always took off the coat of his stomach 
 and left it at home." 
 
 This recalls the witty reply of Rufus Choate to a 
 gentleman who expressed the fear that the many 
 public dinners which he attended would impair his 
 
WILLIAM M. EVAHTS 197 
 
 constitntion, and inquired what lie would do if Ms 
 constitution was destroyed. "Well," was the re- 
 ply, "when my constitution is gone, I shall live on 
 my by-laws." 
 
 In personal intercourse, Mr. Evarts was undoubt- 
 edly most engaging. His fine face would light up 
 with an attractive smile, and his unaffected cordial- 
 ity and geniality, combined with his wit and bril- 
 liance, furnished a combination of fascinating per- 
 sonal qualities that is rarely met. His face was 
 typically Eoman and bore in every line the mark of 
 intellectuality, but his nose was quite pronounced 
 even for a Roman. He never succeeded in his am- 
 bition to get stouter, and his figure was slight, but 
 although he was not tall, there was an impression 
 of height about him as one observed his movements, 
 especially on the platform, which was not dispelled 
 until coming into direct contact with him. During 
 all our intercourse, which was sometimes rather 
 close, and when he was at the pinnacle of his great- 
 ness, there was a kindliness, courtesy, absence of af- 
 fectation, and a play of wit and good nature that 
 was altogether charming, because quite unusual. 
 
 Combined with his remarkable gifts and attractive 
 qualities, exceptional opportunities were undoubt- 
 edly afforded him early in his career for the dis- 
 play of his ability. He was trained in the office of 
 Daniel Lord, and in later years, when the Parish 
 will case was begun, in which the will of Mr. Par- 
 ish, prepared by Mr. Lord, and his son, Daniel D. 
 Lord, was attacked by Mr. Parish's relatives, repre- 
 sented by Mr. 'Conor, for want of testamentary 
 
198 LANDMARKS OP A LAWYER'S LIFETIME 
 
 capacity, and undue influence by Mrs. Parish, he was 
 retained by Mr. Lord as chief counsel in support of 
 the will, although then not more than thirty-eight 
 years of age. No more satisfactory testimonial 
 could be furnished to Mr. Evarts' learning, capacity, 
 and skill as a lawyer at this early age than this re- 
 tainer by his former preceptor, one of the most dis- 
 tinguished counsel at the New York bar. He had, 
 however, given abundant evidence of his ability, in 
 his conduct as Assistant United States Attorney of 
 the case of Lemmon against The People, (20 N. T., 
 562), in which, pitted against such a formidable ad- 
 versary as Charles 'Conor, he successfully sus- 
 tained the legal proposition, now appearing to be 
 clear, but then a matter of doubt, as well of debate 
 in the Senate and House of Representatives, and 
 in the courts, that a slave from one of the slave 
 States brought into the State of New York by sea, 
 and there landed with the intention of embarking 
 upon a new voyage to another slave State, was 
 thereby made free. 
 
 Although Mr Evarts was favoured by circiun- 
 stances and opportunities in his early career at the 
 bar, it is due to him to say that he could scarcely 
 have failed with his natural gifts, extensive acquire- 
 ments and industrious habit to attain at an early age 
 the eminence which he secured and deserved. 
 
 Soon after leaving the office of Assistant United 
 States District Attorney his career began in the of- 
 fice of J. Prescott Hall, with whom he was associated 
 during the remainder of his life. The firm, if I am 
 not mistaken, was Hall, Butler & Evarts, the second 
 
WILLIAM M. EVARTS 199 
 
 member Mr. Charles E. Butler, being occupied gen- 
 erally in oflSce practice and rarely seen in the courts. 
 On the death of Mr. Hall, this firm was followed by 
 Butler, Evarts & Southmayd, and later by Evarts, 
 Southmayd & Choate, for a long period the most 
 distingniished and able firm of lawyers in this 
 city if not in the country. Unquestionably this 
 combination of men of the highest attainments was 
 a prime factor in their great achievements, and the 
 eminence of each of them. 
 
 In the early days of my practice, I was brought 
 occasionally into personal intercourse with Mr. 
 Southmayd in the progress of litigations conducted 
 by my father on behalf of a former client of Evarts, 
 Southmayd & Choate which, for some reason un- 
 known to me, they were unable to undertake. Mr. 
 Southmayd was exceedingly able, of wide learning 
 in the law, of unerring judgment in the conduct of 
 a legal controversy or negotiation, but was the an- 
 tipodes of Messrs. Evarts and Choate in being al- 
 most a recluse. As an adviser of clients in compli- 
 cated matters of importance, he probably occupied 
 the first place in the front rank of the bar of New 
 York, while as an adviser of his partners in their 
 conduct of cases in court he was the acme of use- 
 fulness. Undoubtedly Mr. Southmayd contributed 
 largely to the success and achievements of his part- 
 ners. I remember a remark of Mr. Choate that his 
 success at the bar was probably due in a large meas- 
 ure to the ten years during which he followed Mr. 
 Evarts about in the courts as a junior, but one may 
 well reflect upon the advantage of Mr. Evarts pos- 
 
200 LANDMARKS OF A LAWYER'S LIFETIME 
 
 sessed in being followed about by, and consulting 
 with, a junior like Mr. Choate. 
 
 Mr. Southmayd's appearance was most refined 
 and his manner simple and modest. He had a slight 
 lisp and a practice of innocent swearing which, in- 
 stead of shocking, lent a piquancy and flavour to 
 his general conversation. I was told of an instance 
 of this in his latest days, when, his memory being 
 obscure, a former employe of his office, who had been 
 accustomed during his later years to attend to his 
 personal affairs, called at his residence on some 
 matter of business. Mr. Southmayd's sister in- 
 formed him that Mr. Rowe desired to see him. "Mr. 
 Eowe, Mr. Bowe," said Mr. Southmayd, "who is Mr. 
 Eowe?" "Why," replied his sister, "you surely 
 know Mr. Rowe who was in your office so long and 
 who has attended to your business affairs." "Oh 
 yes," replied Mr. Southmayd, "hell and damnation 
 show him up." 
 
 During the heyday of this great firm, Mr. South- 
 mayd was the trusted adviser of the largest banking 
 interests and relied upon to such an extent by Dutch 
 bankers in Amsterdam and elsewhere that it was 
 impossible to place with them an issue of American 
 bonds without the approving opinion of Mr. South- 
 mayd, and all of this class of business was practic- 
 ally in his hands. This reliance on him was due to 
 his extreme caution in the investigation of legal 
 questions, and his conservative opinions. But as 
 time went on this caution and conservatism grew 
 upon him, and became so marked that it interfered 
 with the placing of securities of unimpeachable 
 
WILLIAM M. EVARTS 201 
 
 value, so that, finally, when he delivered an opinion 
 of considerable length upon a bond issue involving 
 questions of great importance, and concluded it by 
 stating that these were his views, but that God alone 
 knew how the courts would decide, and that his 
 opinion was given upon the understanding that he 
 was to incur no pecuniary liability, their confidence 
 was impaired, and their business was withdrawn. 
 
 A reputable member of the bar, formerly manag- 
 ing clerk in the office of Evarts, Southmayd & 
 Choate, characterised Mr Southmayd as an ex- 
 ample of a thoroughly conscientious lawyer, with 
 the highest standard of professional morality, ob- 
 serving the most scrupulous integrity iu every pro- 
 fessional matter, as well as discriminating carefully 
 in the business which he undertook. In the days of 
 Fisk and Gould, he not only declined to undertake 
 business for them, but refused even to shake hands 
 with them, or speak to them. He also referred to 
 Mr. Southmayd 's caution in his personal affairs, 
 against exposing himself to any kind of criticism, as 
 being carried to an absurd extent, leaving him to sell 
 most of his real estate holdings after the law was 
 passed making the owner of real estate responsible 
 when it was occupied for immoral purposes, under 
 the fear that unknown to himself it might be so oc- 
 cupied ; and that he was reluctant to send parcels by 
 express lest there should be an over-charge, subject- 
 ing not only the company, but the sender, to penal- 
 ties imposed by legislation in such cases. 
 
 In March, 1898, a statute was enacted requiring 
 attorneys and counselors in the courts of New York 
 
202 LANDMARKS OF A LAWYER'S LIFETIME 
 
 to make and file an affidavit that they had been duly 
 and regularly admitted to practice as attorneys and 
 counsellors-at-law, and had taken the constitutional 
 oath of office, and making it thereafter a misde- 
 meanour to practice as an attorney and counsellor 
 without having submitted the affidavit. Mr. South- 
 mayd was in a dilemma because he could not dis- 
 tinctly recollect having taken the oath, there being 
 no jurat affixed to the roll which he had signed. 
 
 Few lawyers would, I think, after the lapse of the 
 fifty-two years which had intervened since his ad- 
 mission, have been able to make an affidavit, based 
 on present recollection that they had taken the oath, 
 but they would have been able to do so knowing that 
 they had been admitted on complying with all the 
 rules and regulations, as they would not have been 
 otherwise, that they had been recognised and had 
 practiced as such and that their right to do so had 
 never been questioned. But Mr. Southmayd's con- 
 science and bump of caution were too sensitive to 
 permit him to make oath to the performance of each 
 detail of procedure, unless he could do so from pres- 
 ent recollection. He therefore presented a long affi- 
 davit, consisting of an argument based largely on 
 inferences, to prove that he had taken the oath, and 
 thus, without being willing to state that he had done 
 so, ask the court to conclude that he had. An in- 
 teresting and appreciative memorial of Mr. South- 
 mayd, prepared by Mr. Choate for the Association 
 of the Bar, gives an account of this affidavit, and I 
 am indebted to it, and to the affidavit on file, in at- 
 tempting to give the substance of it. 
 
WILLIAM M. EVARTS 203 
 
 In this curious affidavit he dealt with the pros 
 and cons respecting his taking the oath. He remem- 
 bered attending in court with other persons exam- 
 ined for admission and that the chief justice ad- 
 dressed to them some courteous words wishing them 
 success in the profession, and felt quite confident that 
 the candidates attended for the purpose of taking 
 the oath in open court, and that he, as did others, 
 must have taken the oath on the roll in open court. 
 That he recollects signing the roll of attorneys, and 
 has strong reason to believe, and does confidently be- 
 lieve, that he did subscribe and take the constitu- 
 tional oath of office, because he recollects that when 
 he was about to sign the roll, or after he signed, 
 noticing the signatures of certain persons who had 
 subsequently become prominent members of the 
 bar. 
 
 He proceeds to explain why no subscribed oath is 
 attached to the roll, and believes it to be accoimted 
 for because the oath was required to be taken in open 
 court, and he therefore says that he has no practical, 
 reasonable, and substantial doubt that he must have 
 subscribed and taken, and did subscribe and take, 
 the constitutional oath, although he does not, after 
 the lapse of more than fifty years, recollect either 
 his subscribing or taking such oath, and could not 
 now state the facts even to the extent already stated, 
 were it not for his reliance upon information ob- 
 tained from the Clerk, and the Clerk's office, and the 
 other circumstances above referred to, and the 
 further circumstance that he does not think that his 
 license would have been given out to him with- 
 
204 LANDMAEKS OP A LAWYER'S LIFETIME 
 
 out his having subscribed and taken the oath re- 
 quired. 
 
 A further reason why he is unable to make oath 
 as to his admission as an attorney and counsellor-at- 
 law in the courts of record of this State, is that his 
 admission aforesaid was merely as an attorney of 
 the Supreme Court, and that as the law stood at the 
 time of his admission, practitioners in the Court of 
 Chancery, called solicitors, were appointed and 
 licensed in the Court of Chancery, and that solicitors 
 and counsellors licensed in the Court of Chancery 
 were authorised to practice as such in all the courts 
 of equity. 
 
 He then tells of his admission as a solicitor, and 
 sets forth a certified copy of the order in chancery 
 admitting him, but takes care to correct it by stat- 
 ing that, although the caption of the order reads as 
 having been made at Albany, his real appearance 
 before the Chancellor for the purpose of being ad- 
 mitted was at Saratoga Springs, to which place he 
 recollects going from Albany for that purpose, and 
 that it must have been at Saratoga Springs that the 
 Chancellor admitted him, and signed the license, and 
 administered tlie oath as in open court, and he sup- 
 poses that the Eegister drew up and entered the or- 
 der under some sufficient indication or direction 
 from the Chancellor; but still, it may be that he is 
 mistaken in relation to his recollections or impres- 
 sions in relation to rules of practice in the Court 
 of Chancery, which was abolished more than fifty 
 years before the making of this affidavit, but he feels 
 justified in saying that he subscribed and took the 
 
WILLIAM M. EVABTS 205 
 
 constitutional oath of office as solicitor in Chancery, 
 although at this time, so long subsequent, he cannot 
 recollect as mere facts, and could not state on oath 
 as an occurrence or occurrences within his memory, 
 either his subscribing or taking the said oath, and 
 thinks that the Register, as Clerk of the Court, would 
 not have given, and is quite confident that he would 
 not have received, such a certificate as is indorsed 
 upon the license, if it had been untrue ; that he went 
 from Albany to Saratoga Springs for the purpose of 
 attending before the Chancellor there, and doing 
 what was necessary to obtain his admission as solici- 
 tor, and entitle him to practice thereunder, and he 
 does not doubt that he knew what was necessary, 
 and acted accordingly; and upon the premises afore- 
 said he deposes and says that he was to the best of 
 his knowledge and belief, duly and regularly admit- 
 ted as a solicitor of the Court of Chancery ; but that 
 although he has spent very much time in searching 
 for, and endeavouring to find his license as attorney 
 of the Supreme Court, he has not been able to find 
 it, although very desirous to do so. He completes 
 his argumentative affidavit by stating that the Act 
 of May 12, 1847, commonly called the Judiciary Act, 
 provided that every person who shall be a solicitor 
 in Chancery or attorney in the Supreme Court of 
 this State, on the first Monday of July then next, 
 should be entitled to practice as attorney, solicitor, 
 and counsellor in all the courts of this State ; where- 
 fore he assumes that he acquired the right so to 
 practice. 
 
 This affidavit is a striking illustration of Mr. 
 
206 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Southmayd's extreme conscientiousness and unwill- 
 ingness to state, especially under oath, any fact 
 which was not to his own knowledge exactly so, and 
 this characteristic conscientiousness in fact marked 
 his whole conduct in life, and sometimes put him to 
 great inconvenience. 
 
 Returning to Mr. Evarts from this digression, one 
 of his most noteworthy features was his oratorical 
 power. He was an accomplished and convincing or- 
 ator. He was in constant demand, and displayed his 
 remarkable gifts, not only in court, but on occasions 
 of large public interest, in political assemblies, and 
 in public functions of every description. The ap- 
 pearance on the platform of his expressive and intel- 
 lectual face, his graceful and dignified figure, and 
 his refined and courtly bearing, commanded at once 
 attention and respect. His demeanour, pose and ges- 
 ticulation were full of grace and charm, and al- 
 though his voice had none of the ore rotundo it was 
 of sufficient resonance and power to be distinctly 
 heard in the largest auditoriums. His ideas and 
 arguments were of great value and significance, as 
 was to be expected from one of his wonderful gifts, 
 and although his utterances were marred somewhat 
 by the rhetorical defect of long and involved sen- 
 tences, his oratorical efforts were accompanied with 
 such personal magnetism as to enable him to carry 
 his hearers along in concurrence, although the pre- 
 cise meaning of his sentences might not be clearly 
 apprehended. An instance of his fascination as an 
 orator at social functions is that of the reception to 
 Lord Chief Justice Coleridge at the Academy of 
 
WILLIAM M. EVARTS 207 
 
 Music in 14tli Street upon his visit to this country in 
 1883, and upon a public question of great importance 
 at a meeting at Cooper Union relating to the seizure 
 by the United States Government of the Spanish 
 vessel Virginius. 
 
 Probably no better manifestation of Mr. Evarts' 
 capacity as a jury lawyer, when in the fullness of his 
 years could be presented, than his address to the 
 jury in favour of Henry Ward Beecher in the case 
 of Tilton against Beecher. Its delivery occupied 
 eight days and was enlivened by wit and brilliancy to 
 a degree in marshalling facts and circumstances, and 
 discussing motives, with what has always seemed to 
 me unanswerable force. One of his witticisms was 
 an inquiry by a lady of a Frenchman as to his defini- 
 tion of a faux pas, to which he replied, "I do not 
 know its exact definition, but I do know that it is not a 
 pas seul." During the progress of that case it was 
 necessary to have a consultation between Mr. 
 Beecher and his counsel and, after endeavouring 
 to arrange for a week day, it was found impossible 
 to do so, and the only time when all the counsel could 
 attend was on Sunday. To this Mr. Beecher ob- 
 jected on account of his church services, as between 
 the services it was necessary for him to make prep- 
 aration. They urged upon him the importance of 
 the consultation, and that, under the circumstances, 
 it could not possibly offend one's moral sense. Mr. 
 Beecher long resisted their arguments, but, finally, 
 Mr. Evarts suggested that our Lord had given his 
 approval to lifting an ass out of a pit on the Sab- 
 bath Day, to which Mr. Beecher instantly replied. 
 
208 LANDMARKS OF A LAWYER'S LIFETIME 
 
 "Quite true, quite true, and if there has ever been 
 a bigger ass than I am, I do not know it; of course 
 I will attend." 
 
 But it was before appellate tribunals that Mr. 
 Evarts was at his best, and I think he must have 
 felt that his greatest power as a lawyer was in this 
 direction. He did not seem to rely so much on his 
 printed briefs as on his oral arguments. It was 
 then that he expected to bring conviction to the 
 mind of the Court. He was evidently not one of 
 that considerable class of lawyers who suppose an 
 extended and exhaustive printed brief is the best 
 means of convincing a Court. He seemed to regard 
 his briefs as serving to refresh the mind of the 
 Court concerning his oral argument, instead of treat- 
 ing his oral argument as a mere introduction to his 
 brief. I suppose it must have been a recognition of 
 his power in an oral argument which led him, alone 
 among all the counsel at the Geneva Arbitration, to 
 apply for and obtain an opportunity to present his 
 views orally, which he did with marked success, Sir 
 Roundell Palmer of Great Britain and Caleb Gush- 
 ing and Morrison E. Waite of the United States 
 submitting written arguments. 
 
 One instance of a display of his remarkable tal- 
 ents in a case of great public importance came un- 
 der my personal observation. In June, 1882, I hap- 
 pened to be attending the Court of Appeals to argue 
 a case at its session held at Saratoga Springs. The 
 presence there of Mr. Evarts and Mr. David Dudley 
 Field at once attracted my attention. I found that 
 they were to argue the case of Story against The 
 
WILLIAM M. EVARTS 209 
 
 New York Elevated Railroad Co., (90 N. Y., 122). 
 The case grew out of the construction of the ele- 
 vated roads on the public streets in the City of New 
 York, and involved the question whether the public 
 thoroughfares could be subjected to use for an ele- 
 vated road by permission of the city authorities, 
 without making compensation to abutting owners, 
 on the theory that each abutting owner had an ease- 
 ment of light, air and access in the street, and that 
 this easement could not be interfered with or im- 
 paired without compensation. The case had been 
 argued at a previous term before six judges, there 
 being at that time one vacancy in the court. The 
 court was evenly divided in opinion, and the vacancy 
 having been filled later by the appointment of Judge 
 Benjamin F. Tracy, the case was assigned for re- 
 argument at the time above mentioned. There were 
 but few lawyers in attendance, and none of the gen- 
 eral public. Realising that the argument was likely 
 to be interesting, I secured a place where I could ob- 
 tain as much as possible a front view of Messrs. 
 Evarts and Field. Mr. Evarts first addressed the 
 court and made an argument which consumed proba- 
 bly two hours in its delivery. From the moment that 
 he began until its close, he held the undivided atten- 
 tion of the court, and it is needless to say that this 
 was true of my own. Whether the subject was one 
 which particularly appealed to Mr. Evarts I do not 
 know, but it was well fitted for a display of the 
 learning, logic, fancy, subtlety, and wit of his fer- 
 tile mind. It was by far the best argument that I 
 have ever heard addressed to a court. This in- 
 
210 LANDMARKS OF A LAWYER'S LIFETIME 
 
 tangible easement as a property right, its value 
 capable of being estimated in dollars and cents, fur- 
 nished a theme which brought forth from his abun- 
 dant stores a remarkable combination of argument, 
 illustration, and wit such as I have never heard on a 
 similar occasion. 
 
 Of course, it would be impossible to reproduce it, 
 or convey any adequate idea of its effect, but one of 
 his incidental illustrations has ever since clung to 
 my memory. In dealing with the question of the 
 intangible character of the easement, he told how in 
 the early days of travel by steamboat on the Missis- 
 sippi River, a party of clergymen who had been at- 
 tending a religious conference were returning to 
 their homes. Some of them were from outlying 
 wilderness districts, and of very little general cul- 
 ture. During the journey, they fell into conversa- 
 tion upon the different phases of religious belief 
 then manifesting themselves, and among them that 
 of transcendentalism. At the conclusion of the dis- 
 cussion, an uncultured brother who had been listen- 
 ing attentively, if not understandingly, approached 
 one of his learned brethren with the remark, 
 "Brother, I wish that you would tell me what trans- 
 cendentalism is?" "Well," was the reply, "it is 
 difficult to explain it so accurately as to have it thor- 
 oughly understood, but I can best show you what it 
 is by illustration." Just at that time they were 
 passing one of the high bluffs having numerous small 
 holes, in and out of which birds were constantly pass- 
 ing. He pointed to the bluff and said: "Now, 
 brother, do you see that bluff?" "Yes." "Do you 
 
WILLIAM M. BVARTS 211 
 
 see the holes in that Wuff?" "Yes." "Do you 
 see the hirds passing in and out of those holes?" 
 "Yes." "Well, you take away those birds, and 
 then take away that bluff, and leave those holes, and 
 you have transcendentalism." 
 
 I happened to meet Judge Tracy recently, when 
 our conversation turned on the argument of this 
 case. In view of the even division of the court, 
 Judge Tracy really had the casting vote and prac- 
 tically decided the case. He said it fell to him to 
 write the opinion in this case in the regular course 
 of things, and that it was not a special assignment. 
 I related to him this incident which he remembered 
 very well. "I walked," said he, "from the court 
 house at the conclusion of the argument with Judge 
 Earl, who had written an opinion in favour of the 
 elevated road, and in speaking of the arguments of 
 Mr. Evarts and Mr. David Dudley Field, he ex- 
 pressed his dissatisfaction with Mr. Field's argu- 
 ment, saying that if he ever had a case to be argued 
 he would not have it argued by a man over seventy 
 years of age." Judge Tracy said that there was 
 no consultation over the case, and no discussion of 
 it whatever among the judges, beyond what had 
 taken place at the conclusion of the first argument, 
 and that the other members of the court left it to 
 him to write the opinion, and that they did not see 
 his opinion until the case was decided. 
 
 Some time afterward, he remarked, when he was 
 Secretary of the Navy residing at Washington, hav- 
 ing become well acquainted with Mr. Justice Field, 
 of the Supreme Court of the United States, brother 
 
212 LANDMARKS OF A LAWYER'S LIFETIME 
 
 of David Dudley Field, he was informed by Justice 
 Field that he had taken considerable interest in the 
 case, having read Judge Tracy's opinion, and that 
 on meeting David Dudley Field subsequently, when 
 attending a session of the Supreme Court, he said 
 to him, "Dudley, I have read General Tracy's 
 opinion in that Story case and I think he is right," 
 to which David Dudley replied, "I think he is right 
 too." The result of this decision was a rich harvest 
 for the lawyers who subsequently began suits for 
 the individual property owners, as well as for the 
 property owners themselves. 
 
 From conversation with Mr. Evarts, I think he 
 must have been disappointed at not receiving a nom- 
 ination for Chief Justice of the Supreme Court of 
 the United States from General Grant on the death 
 of Chief Justice Chase. He delivered a eulogy at 
 Dartmouth College, some time subsequently, on the 
 late Chief Justice. He sent a copy of it to Mr. Ban- 
 croft with a half barrel of pig-pork, accompanied by 
 a note saying in substance, "I am sending you the 
 usual half-barrel of pig-pork and my eulogy on Chief 
 Justice Chase, both products of my pen.'''' 
 
 Mr. Evarts had become so prominent and his serv- 
 ices to the government were of such an exceedingly 
 valuable character, that quite naturally the public eye 
 was directed to him as the probable recipient of the 
 Chief Justiceship, but it was not to be. Roscoe 
 Conkling, then United States Senator, was un- 
 friendly to Mr. Evarts, and evidently determined to 
 prevent his nomination. George H. Williams, At- 
 torney General, and formerly a Senator from Ore- 
 
WILLIAM M. BVAETS 213 
 
 gon, was the first nominee, but his nomination was 
 received with such an outburst of opposition from 
 all quarters that, notwithstanding senatorial cour- 
 tesy to a former member of its own body, it could not 
 be confirmed. The public eye was then directed to 
 the several counsel at Geneva, and General Grant 
 selected as his second nominee, Caleb Gushing, whose 
 name has gone down to history as one of the most 
 conspicuous and able lawyers of his time, but his 
 record upon the question of slavery was such that 
 it soon became apparent that he would not be accept- 
 able, and his nomination was withdrawn. Mr. 
 Evarts during all this time was undoubtedly the 
 choice of the bar and the public for the Chief Jus- 
 ticeship, and it seemed impossible, with any sense 
 of justice, and with due regard to public sentiment, 
 to deprive him of the appointment. Probably 
 President Grant would have been glad to make it, 
 but Senator Conkling, who had a dominating in- 
 fluence over General Grant, was implacable. Con- 
 sequently the President nominated Morrison R. 
 Waite, who, although untried in judicial office, and 
 comparatively obscure before his appointment as 
 counsel at Geneva, was confirmed by the Senate, and 
 left an enviable record during his long service as 
 Chief Justice. 
 
 One afternoon, in 1886, 1 was agreeably surprised 
 by a call from Mr. Evarts at my office. I would 
 have gladly waited upon him if he had signified a 
 desire to see me, but his kindliness and considera- 
 tion were manifested in calling upon me, a humble 
 practitioner, a generation his junior, to discuss the 
 
214 LANDMARKS OF A LAWYER'S LIFETIME 
 
 settlement of the case to wMch. I have referred. I 
 do not know how long he remained, but I do know 
 that it was light when he came, and that when he 
 left we were sitting practically in the dark. I re- 
 member that our case required very little discus- 
 sion, and that he then entered upon a flow of de- 
 lightfully interesting talk. I have greatly regretted 
 that no memorandum was made of it, but it extended 
 from the Johnson impeachment down through his 
 Attorney Generalship, and then to Geneva, and 
 finally to the Chief Justiceship, in which he referred 
 to an incident in connection with Chief Justice 
 Taney's appointment, growing out of the inadequacy 
 of the salary of the Chief Justice. He said that 
 when Chief Justice Taney's daughters were informed 
 that their father was likely to be nominated and 
 confirmed for that important position, they replied: 
 "Then we shall be obliged to take in washing." 
 And he followed it by an incident in connection with 
 the appointment of Chief Justice Chase on the death 
 of Chief Justice Taney. When the appointment 
 was under consideration and discussion, and it was 
 undecided whether Chief Justice Chase would be 
 named, a considerable number of other names 
 were presented to Mr. Lincoln, and urged with so 
 much persistence as to be a positive annoyance. On 
 one occasion a representative in Congress from Con- 
 necticut called upon Mr. Lincoln to urge a particu- 
 lar nomination. They were standing in a room 
 where there was a fine specimen of one of the chairs 
 prevalent in those days, constructed entirely of the 
 horns of Texas steers, and entwined so as to form a 
 
WILLIAM M. EVARTS 215 
 
 chair. At the very first mention of the subject, Mr. 
 Lincoln exclaimed: "Mr. Blank, do you see that 
 chair made out of those horns?" "Why yes, Mr. 
 President, very beautiful, is it not." "Well," said 
 the President, "do you know that when the subject 
 of the Chief Justiceship is mentioned, I feel as if 
 I had all of those horns in the pit of my stomach. ' ' 
 
 Upon President Hayes' election, Mr. Evarts, who 
 was the leading counsel before the Electoral Com- 
 mission, was appointed Secretary of State. The 
 well-known principles of Mrs. Hayes prevented the 
 serving of wine at the social functions. At the first 
 of these someone remarked to Mr. Evarts upon the 
 absence of wine, when Mr. Evarts replied that it 
 was a very successful reception, and that "the water 
 flowed like champagne." He was greatly besieged 
 at this time by applications for appointment to 
 foreign countries as ministers, consuls, etc., and one 
 day, accompanied by a distinguished friend, he 
 entered the elevator of the State Department on his 
 way to his oflSce, and found that it was crowded with 
 individuals who were intent upon securing these ap- 
 pointments. Mr. Evarts turned to his friend and 
 remarked in a whisper loud enough for all to hear, 
 "This is the largest collection for foreign missions 
 that we have taken up for some time." Later he 
 accompanied his friend to Mt. Vernon and as they 
 stood gazing off on the Potomac, his friend re- 
 marked that it was said of George Washington that, 
 standing on the terrace at Mt. Vernon, he could 
 throw a silver dollar across the Potomac, but that 
 it seemed incredible. "Well, you know," said Mr. 
 
216 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Evarts, "that a dollar used to go further in those 
 days than it does now." 
 
 At his home in Windsor he dispensed a generous 
 hospitality to which he once introduced some vis- 
 itors of distinction, as they sat down to table: 
 "Gentlemen, you can have either milk or cham- 
 pagne; their cost on my farm is exactly the same." 
 
 Alas, that his last days should have been accom- 
 panied by the gloom of absolute blindness. In this 
 melancholy condition, his closing years were passed 
 in his home on 14th Street until his death at a very 
 advanced age, but he has left a record of remark- 
 able achievements which are preserved in the pages 
 of our national history. 
 
CHAPTEE IX 
 
 CHABLES O'CONOR 
 
 Mk. 'Conor's long career and eminence as a law- 
 yer, combined with Ms personal cliaracteristics and 
 general appearance, made him one of the most inter- 
 esting figures at the bar. 
 
 At the time of which I speak — about 1870 — he was 
 as a lawyer pure and simple, pre-eminently the head 
 of the bar of the State of New York, and probably of 
 the United States, with the possible exception of 
 Benjamin E. Curtis of Boston, formerly a Justice 
 of the Supreme Court of the United States. A mere 
 law student like myself could not hope to have any 
 considerable opportunity of close observation of 
 Mr. O 'Conor, and, as was natural, the occasions 
 when I saw him were either in court, or as I chanced 
 upon him in his walks on his way up-town. Of 
 course, this great luminary of the law was a sort 
 of demigod to the embryo lawyer. Although his ap- 
 pearance was plain and unpretentious to a degree, 
 there was yet something striking and impressive 
 about him which would arrest the attention of even 
 a casual observer. His finely chiseled and charac- 
 teristic Irish face, on which was stamped the pale 
 cast of thought, marked in every line by intellectual- 
 ity; his piercing grey eyes, his firm and determined 
 mouth, the square set chin and jaws, fringed about 
 with short white whiskers, needed but a glance to 
 
 217 
 
218 LANDMARKS OF A LAWYER'S LIFETIME 
 
 mark them as the outward indications of a powerful 
 and dominating personality. His tall, spare figure 
 was generally clad in a not very well-fitting and some- 
 what ill-cared for suit of black broadcloth, with a 
 rather rusty stove-pipe hat tilted backward on his 
 head. His gait was a little shambling, but his step 
 was firm and vigorous, although not rapid, as he 
 pursued his way up Broadway. His appearance 
 and demeanour were marked by a certain careless- 
 ness of his surroundings and of the impression he 
 would make on those he met. I used to like to fol- 
 low him and mark the make-up of this great leader 
 of the bar, and wonder at the store of learning and 
 mighty thoughts which his brain contained. It was 
 a kind of hero-worship, such as one bestows on a 
 great victor in the arena. As a pedestrian, Mr. 
 'Conor was renowned. It was by no means uncom- 
 mon for him to walk the -entire distance from his of- 
 fice in "Wall Street to his residence at Washington 
 Heights. In fact, on almost any day he might be 
 seen pursuing his way up-town at an easy gait and 
 with measured tread, that made one feel as though 
 he could walk forever. 
 
 An eminent lawyer related to me recently how on 
 the return from Albany of the counsel engaged in 
 the famous case of the New York & New Haven Rail- 
 road Co. against Schuyler, when the train stopped 
 late at night at the Harlem River, Mr. O 'Conor, 
 against the remonstrances of his associates, insisted 
 on leaving the train and walking at some risk of per- 
 sonal danger several miles across the fields to Ms 
 home. This remonstrance was because of the num- 
 
CHARLES 'CONOR 219 
 
 erous deeds of violence which had occurred in that 
 locality, infested at the time with desperadoes. In 
 fact several burglaries had occurred in houses of 
 his neighbours ; but he put all remonstrances aside, 
 remarking that it was true that there were des- 
 peradoes and that there had been burglaries, but he 
 was certain that neither desperadoes nor burglars 
 would harm him, as his servants would be sure to 
 warn them against attacking him "because," said 
 he, "my servants actually think I am the devil." 
 
 His progress at the bar was slow, and his dis- 
 tinction was a triumph of intellect. He was not by 
 nature, temperament or art a jury lawyer, having 
 none of the personal magnetism to attract juries, or 
 the methods used with them by skillful advocates, 
 and yet it is by no means true that he was not a 
 successful jury lawyer. On the contrar}^, some of 
 his great triumphs were before juries, but his great- 
 est were appeals to reason before Appellate tri- 
 bunals. 
 
 He had little outward personal charm, although 
 often described as kindly and genial in informal 
 and intimate social intercourse. No one could look 
 upon his fine intellectual face and domelike forehead 
 and fail to be impressed with the stamp of intel- 
 lectuality. He had, moreover, no graces of oratory ; 
 his manner was angular and scholastic, with little 
 gesticulation, generally unsympathetic and unemo- 
 tional, and his voice was hard and rasping. He was 
 often sarcastic and bitter, but there were vigour and 
 energy, united with a choice diction and compelling 
 reason, which would carry one along irresistibly un- 
 
220 LANDMAEKS OF A LAWYER'S LIFETIME 
 
 til no other conclusion, than that which he reached 
 seemed possible. His foundations of power were 
 his wonderful logical faculty, and his vast knowledge 
 of the law, from which he illuminated every subject 
 with clearness and accuracy of statement until it 
 seemed as though nothing could be said to gainsay 
 him. 
 
 I remember hearing him on two occasions — in the 
 Jumel will case in the Federal Court, and in a com- 
 mercial case before the General Term of the Su- 
 preme Court. In the former he was associated with 
 Mr. James C. Carter. I do not recall the particular 
 question under discussion but that strange figure 
 George, the Count Joannes, a unique and eccen- 
 tric member of the profession, with a spurious title 
 of nobility and little practice, represented an oppos- 
 ing interest, and my memory has often turned dis- 
 tinctly and clearly to the terrible arraignment of 
 the Count by Mr. Carter for professional miscon- 
 duct in the pending controversy, lashing him with 
 the tongue of the furies, while Mr. 'Conor sat with 
 grim visage, stern and impassive, but evidently well 
 satisfied with the performance of his junior. 
 
 It may have been that it was in the discussion 
 which followed that Mr. 'Conor made a fine pre- 
 sentation of a branch of the law of marital rela- 
 tions which concerned the disposition by married 
 women of property by will. As 'he recounted the 
 struggles with the barons in England for a change 
 in the law, his countenance, dignified bearing, and 
 clear and expressive language, culminating in the 
 energetic expression, "and rising in a body they 
 
CHAELES 'CONOR 221 
 
 struck tlieir shields with their swords exclaiming 
 with loud voices, 'Nolumus leges Anglice mutare,' " 
 presented a scene which made an indelible impres- 
 sion on my mind. The other ease was one in which 
 he was opposed by David Dudley Field, and during 
 Mr. Field's argument, he paced up and down the 
 rear of the court, with a sort of restless energy in 
 every movement, as though impatient that his time 
 and that of the court should be wasted in listening 
 to such a baseless argument. At its conclusion he 
 literally rushed iato the fray with a combination of 
 ridicule and destructive logic that seemed alto- 
 gether overpowering. 
 
 At the meeting of the Bar in memory of James T. 
 Brady, which I attended, he made a powerful and 
 impressive address, and in the room where he de- 
 livered it there has always stood, until removed to 
 the Court House of the Appellate Division, an ex- 
 cellent bust of Mr. O'Conor which was presented to 
 the Court at a memorial meeting held in the same 
 room in his honour. 
 
 If the stories of Mr. 'Conor's temper are true, 
 he was undoubtedly gifted with hot blood, manifest- 
 ing itself in ill-restrained irascibility. His faith- 
 ful clerk, a factotum of many years* service, could 
 probably have given valuable testimony in this re- 
 spect, for a member of the bar now living, who was a 
 student in an adjoining office to Mr. 'Conor's, told 
 me how greatly shocked he was to hear Mr. 'Con- 
 or's rasping voice heaping malediction on his prob- 
 ably aggravating clerk, which aggravation was due, 
 quite likely, to the irrepressible conflict between the 
 
222 LANDMARKS OF A LAWYER'S LIFETIME 
 
 keen and dull intellect. These ebullitions of temper 
 showed the infirmity of a great mind, whose tireless 
 energy and Irish impetuosity made him, quite nat- 
 urally, impatient, and sometimes intolerant of the 
 slower and more plodding processes of those who 
 were working with him or for him. 
 
 One of his greatest triumphs at the bar, and it 
 was a jury case too, was the Forest divorce case, 
 in which he obtained for the beautiful Mrs. Forest 
 (Catherine Sinclair) after a trial of long duration, a 
 verdict divorcing her. This was long before my 
 time, but the interest and excitement which the trial 
 occasioned, with such opponents as Charles 'Conor 
 on the one side, and on the other John Van Buren, 
 and Ogden Hoffman, are matters of legal history, 
 resulting, when the verdict was rendered, in the es- 
 cort of the plaintiff and her counsel by an enthu- 
 siastic multitude to her hotel. His conduct of this 
 case was masterly and called forth from Mr. Justice 
 Curtis of the Supreme Court of the United States 
 the high encomium that it was the "most remark- 
 able exhibition of professional skill ever witnessed 
 in this country." (Life of B. E. Curtis, Vol. 1, 
 p. 167.) And when it is remembered that this was 
 uttered in full view of the great performances of 
 Webster and Eufus Choate, it was indeed high 
 praise. 
 
 As showing the popular interest, Mr. 'Conor's 
 advocacy was so highly applauded that he was not 
 only made the recipient of a banquet, but was pre- 
 sented by sixty members of the bar with a silver 
 pitcher, and by thirty ladies with a silver vase. But 
 
CHARLES 'CONOR 223 
 
 after all, there was a fly in the ointment, because, 
 twenty-five years afterward, Mr. 'Conor was sub- 
 jected to severe criticism for exacting what was de- 
 clared to be excessive compensation, his fair client 
 and her friends claiming, most unjustly, that his 
 services were gratuitous. This criticism led Mr. 
 O 'Conor to bring the matter to the attention of the 
 Association of the Bar, to the end that his conduct 
 in that connection might be investigated. It was an 
 impressive occasion in the Spring of 1876, when at 
 a meeting of that Association, with Mr. William M. 
 Evarts presiding, this Nestor of the bar presented 
 in a long address, which will be found in the Associa- 
 tion Library, his statement of the circumstances 
 connected with his compensation. At his request 
 an investigation was made by a committee of prom- 
 inent lawyers with the result, as might have been 
 expected, that he was completely exonerated. 
 
 It is not often, at the present time, that any one, 
 even the lawyer, has occasion to seek out the briefs 
 of Mr. 'Conor, and few of his oral arguments have 
 been preserved, but his bound volumes of opinions 
 and briefs may be found in the library of the Law 
 Institute, where they were placed under the terms 
 of his will, and excellent examples of his briefs 
 can be seen in the report of the People v. Lemmon, 
 (20 N. T., 564), and of Manice v. Manice, (43 N. Y., 
 303). 
 
 In the Parish will case, another of his great 
 triumphs, his oral argument before Surrogate Brad- 
 ford has been preserved in the six volumes contain- 
 ing the record of that trial, copies of which are in 
 
224 LANDMARKS OP A LAWYER'S LIFETIME 
 
 the law libraries, and a copy of wMcli is also in my 
 own. In an important will case in which I was en- 
 gaged, I found in his cross-examination and his ar- 
 gument on the questions of testamentary capacity 
 and undue influence, a perfect mine of information 
 and suggestion, and they are worthy of careful 
 study. 
 
 There will also be found in a volume entitled 
 "Great Speeches by Great Lawyers," a report of 
 his able and exhaustive argument in the case of the 
 brig General Armstrong, before the Court of Claims 
 in Washington, which grew out of the seizure of ves- 
 sels in the early days of the war. 
 
 It was a great service which Mr. 'Conor ren- 
 dered in those troublous times of public comiption 
 when the Tweed ring flourished. At this important 
 juncture Mr. 'Conor placed at the disposal of the 
 public, without compensation, his eminent services 
 in exposing and punishing the rascality of Tweed 
 and his followers, as well as in bringing charges 
 against certain judges resulting in articles. of im- 
 peachment. In this he co-operated heartily and 
 valuably with Samuel J. Tilden, and those two Demo- 
 crats waged unrelenting war upon the Tweed ring 
 and drove it from power, and all of its followers 
 into disgrace, some of them into imprisonment and 
 the unworthy judges from their positions. 
 
 Mr. William C. Brownell, the eminent literary 
 critic, related to me an experience he had with Mr. 
 'Conor, when in his early days as a reporter on the 
 World, he called on Mr. 'Conor for an interview 
 on matters connected with the Tweed cases. He 
 
CHARLES 'CONOR 225 
 
 was ushered into Mr. O 'Conor's presence and mod- 
 estly stated the object of his visit. Mr. 'Conor 
 made no reply, but, rising from his chair, advanced 
 toward Mr. Brownell slowly, but with such impres- 
 sive dignity that the latter backed away toward the 
 open door as Mr. 'Conor advanced, until he had 
 passed the threshold, when Mr. 'Conor closed the 
 door without having uttered a word. 
 
 He had a kind of grim humour when something 
 occurred to call it forth ; but this was rare. An in- 
 stance of it is related when happening to meet Mr. 
 Ogden Hoffman, he inquired where he was going 
 
 and the reply was, "to Brother 's funeral; are 
 
 you going ? ' ' Mr. 'Conor had not been on friendly 
 terms with the deceased and he responded, "No, I 
 think not. But, on second thought," said he, "I 
 
 think I will go, for I feel sure that Brother 
 
 would have taken great pleasure in being present at 
 mine. ' ' 
 
 When attending the Court of Appeals, he re- 
 sponded to an inquiry by a brother lawyer as to the 
 name of the counsel then addressing the Court. 
 "Oh," said he, "that is Daniel Lord, Jr.^he adds 
 Jr. to his name to distinguish him from the Lord 
 Almighty. ' ' 
 
 An instance is related of his sarcasm in dealing 
 with a witness who, in justification of his conduct, 
 repeated with great frequency during his testimony 
 as to certain of his actions, that "they were under 
 the advice of counsel." In response to a question 
 the witness stated a fact and added, "I did it under 
 the advice of counsel, but after doing it I actually 
 
226 LANDMARKS OP A LAWYER'S LIFETIME 
 
 cried." "Pray," said Mr. 'Conor, "did you also 
 cry under the advice of counsel?" 
 
 In one of Mr. Tilden's letters, set forth in Mr. 
 Bigelow's biography of Mr. Tilden, an estimate of 
 Mr. 'Conor is given which is entitled to respect by 
 reason of their long and intimate association in pub- 
 lic and professional affairs. Mr. Tilden wrote : 
 
 "Mr. 'Conor is a man of extensive and accurate learn- 
 ing, and of an acuteness of reason, somewhat excessive even 
 for the higher uses of his profession; of great mental 
 activity; indefatigable, vehement and sarcastic in contro- 
 versy; remarked at the bar as able rather than wise, and 
 remarkable for a want of tact. ' ' 
 
 If Mr. Tilden is accurate these characteristics 
 were probably responsible for Mr. 'Conor's failure 
 to attain office in national affairs, for which, how- 
 ever, he was at times seriously considered. They 
 also probably led him in such matters as the organi- 
 sation of the Association of the Bar, at a time when 
 some such force was of the utmost importance in re- 
 forming the judiciary and rebuking unprofessional 
 practices, to withhold, at the time, his support from 
 this union of lawyers ; and the call for its formation, 
 signed by almost every lawyer of repute, is con- 
 spicuous by the absence of his honoured name. 
 
 At the Memorial meeting of the Bar Association, 
 held shortly after Mr. 'Conor's death, in 1884, an 
 admirable address was delivered by Mr. James C. 
 Carter, in which he gives an estimate of Mr. 
 'Conor, which I prefer to think truer and more 
 trustworthy than that of Mr. Tilden. After allud- 
 
CHARLES 'CONOR 227 
 
 ing to some of Mr. 'Conor's characteristics, which 
 I have mentioned, he said : 
 
 "But, nevertheless, I believe it would be the deliberate 
 judgment of those who have enjoyed a close acquaintance 
 with Mr. 'Conor, and who have frequently witnessed his 
 varied powers in their full activity, and have observed the 
 prodigious extent of his acquirements, that he was, all 
 things considered, the profoundest and best equipped law- 
 yer that has ever appeared at this bar, and that he would 
 not suffer in comparison with the greatest lawyers of any 
 nation at any time." 
 
CHAPTER X 
 
 GEORGE F. COMSTOCK 
 
 I FiEST saw Judge Comstock in my student days in 
 tlie old brownstone court house, which the Supreme 
 Court was occupying at the corner of Chambers and 
 Centre Streets. This was before the completion of 
 the present court house, whose demolition is now 
 so earnestly desired. It was in connection with 
 what was known as the Express Company litiga- 
 tion, in which Judge Comstock and my father were 
 opponents. He had served in the Court of Appeals 
 with great distinction, being its Chief Judge, and 
 occupied a very prominent position at the bar. The 
 matter in hand was a motion before Judge Daniel P. 
 Ingraham for an injunction and a receiver, to pre- 
 vent a proposed consolidation of certain express com- 
 panies. I could not, of course, be expected to un- 
 derstand, and much less to appreciate his argu- 
 ment, but I recall his manner and utterance, which 
 conveyed the impression that his views admitted of 
 no difference of opinion, and while delivering an 
 argument he seemed to be expressing the final judg- 
 ment of the court. The single expression of his 
 which has remained in my mind ever since was his 
 exclamation, "they can't have a receiver," and from 
 the dominating way in which he uttered it, it seemed 
 to me that his assertion could not be disputed. 
 Nevertheless he was not successful in defeating the 
 
 228 
 
GEORGE F. COMSTOCK 229 
 
 motion. I mention the incident to illustrate the im- 
 pression which Judge Comstock's personality would 
 be likely to create upon a casual observer. A num- 
 ber of years later, a client of mine had two cases 
 pending in the Supreme Court of the United States, 
 in which he desired the services of counsel of the 
 highest ability, and I suggested Judge Comstock. 
 His selection was fully justified, for he prepared for 
 submission to that court two of the ablest and most 
 exhaustive arguments which I have ever read. I 
 remember listening to an account by Mr. Justice 
 Strong of some of the prominent practitioners before 
 the Supreme Court, when he said to me, "but in your 
 own State you have a man who is certainly the 
 equal if not the superior of any of these, ' ' and on in- 
 quiring as to whom he referred, he replied that his 
 name was Comstock. If I were to be asked to whom 
 of all the lawyers I have met I would give the first 
 place, I think I should say George F. Comstock. He 
 had more well-proportioned and evenly balanced 
 qualities of a great lawyer than anyone I have 
 known. 
 
 His retainer in the cases referred to began a close 
 and familiar association with him, which lasted for 
 about ten years. He was not what one would call 
 a companionable man, lacking, to a certain extent, 
 the sympathetic and magnetic quality, and while 
 there was nothing lofty or unapproachable about 
 him, but, on the contrary, great simplicity and gra- 
 ciousness, there was just sxifficient reserve and per- 
 sonal dignity to forbid free and familiar fellowship. 
 The impression that he created was one of intelleo- 
 
230 LANDMARKS OF A LAWYER'S LIFETIME 
 
 tual power. He used no arts to attract, and I never 
 knew him to repel by an inconsiderate or an ungen- 
 erous act. He was kind, courteous and responsive, 
 but not what one would call affable, nor an engaging 
 conversationalist. He was calm, deliberate, well- 
 poised and gave the impression that he lived in a 
 world of his own, removed from the domain of the 
 material to that which was purely intellectual. Upon 
 him more than upon any other lawyer whom I had 
 ever known, with the exception, perhaps, of Mr. 
 'Conor, was the stamp of intellectuality. 
 
 His home was in Syracuse, where he had pursued 
 his legal career until he was elected to the bench. In 
 his earlier days he became associated with B. Davis 
 Noxon, the leading lawyer of Syracuse, whose daugh- 
 ter he subsequently married. Mr. Noxon iised to 
 say that if George F. Comstock were asked who 
 was the best lawyer in Syracuse, he would reply, 
 "that it was B. Davis Noxon, unless it was his 
 son-in-law." General Elias "W. Leavenworth was 
 their partner, and the firm of Noxon, Leavenworth 
 & Comstock was beyond all comparison the most 
 prominent law firm in that part of the state. One 
 of Judge Comstock 's greatest accomplishments in 
 the law was as an equity lawyer, and he once told 
 me that if he possessed any knowledge of equity 
 jurisprudence, it was due to the fact that when he 
 first became a member of the firm of Noxon & Leav- 
 enworth he found a large number of equity cases 
 which had received no attention because of the un- 
 willingness of either partner to give them the care- 
 ful study they required. This forced him to become 
 
GEORGE P. COMSTOCK 231 
 
 a student of equity, and Ms experience in these cases 
 resulted in giving him his first impulse in obtaining 
 the knowledge he possessed, and I may add that 
 whatever knowledge he did not possess was not worth 
 possessing. I cannot imagine Judge Comstock as 
 being a great jury lawyer, and yet I can readily 
 understand that his impressive personality and the 
 weightiness of his utterances would be well calcu- 
 lated to sway a jury, not because their intellects had 
 grasped, or had yielded assent to his arguments, but 
 because coming from him, what he said must be true. 
 He did not like jury trials. He, in fact said, "I did 
 not take to jury trials very much ; as a general thing 
 I had no faith in juries." A certain majestic qual- 
 ity attached to him as one who ruled, and there 
 was an absence of the quahty calculated to per- 
 suade. 
 
 Perhaps this was responsible for his unsuccessful 
 attempt to convince a jury in an interesting and 
 somewhat celebrated case in which his opponent was 
 my father. The action was founded upon fraud and 
 deceit, and Judge Comstock represented the defend- 
 ant. The case is chiefly remarkable as an instance 
 of prolonged litigation. It was commenced in 1843 
 before the Supreme Court as it now exists was con- 
 stituted. My father was retained in it before he 
 went upon the bench in 1851. After serving a term 
 of eight years the case was still undetermined, and 
 he was again retained. The case was tried for the 
 seventh time in April, 1863. It had been heard twice 
 on appeal in the Court of Appeals and on the seventh 
 trial Judge Comstock and my father met for the 
 
232 LANDMARKS OF A LAWYER'S LIFETIME 
 
 fray at the county seat of Wayne County, Lyons. 
 Judge Comstock was certainly at a disadvantage as 
 he was not on his native heath before a Wayne 
 County jury, while my father was at the scene of the 
 greatest number of his forensic contests in jury 
 trials since he began practice in 1826. My father had 
 such a commanding influence over Wayne County 
 juries, that a verdict in his favour was almost a fore- 
 gone conclusion when there was anything like an 
 even chance, or with the odds slightly against him. 
 
 The vicissitudes of the case clearly indicate that 
 the questions of law involved were by no means free 
 from difficulty, and that upon the facts it presented 
 a close question. Being at the time a mere lad, I 
 knew, of course, nothing of the case, but it was in 
 connection with it, as I have since learned, that my 
 father, having returned from Lyons to his residence 
 in Rochester, before the jury had rendered their ver- 
 dict, sent me to ascertain the result from a member 
 of the bar who had returned upon a later train. He 
 was evidently most anxious, and in giving me his in- 
 structions it was with the utmost particularity he 
 impressed upon my youthful mind that I must on 
 no account fail to get clearly whether the verdict was 
 for the plaintiff or for the defendant, and to be cer- 
 tain, he told me, on receiving the information, to ask 
 a second time whether the verdict was certainly for 
 the party named. I carried out his instructions to 
 the letter, and found him waiting for me anxiously, 
 and I recall his dignified manifestation of pleasure 
 as I announced the result. This trial ended the liti- 
 gation, for although it was again appealed to the 
 
GEORGE F. COMSTOCK 233 
 
 Court of Appeals, where the case was argued by 
 Judge Comstock and my father, that court sustained 
 the verdict of the jury. This was the case of Hub- 
 bard against Briggs, (31 N. Y., 518). 
 
 He was at his best upon great questions of law 
 which required an intellectual grapple. This is il- 
 lustrated by some of his great opinions, such as in 
 the cases of Savage v. Burnham, (17 N. Y., 561) and 
 Downing v. Marshall (23 N. Y., 366), both of which^ 
 involved questions of trusts under testamentary dis- 
 positions, and in Wynehamer v. The People (13 N. 
 Y., 378), which involved a question of constitutional 
 law, and in Curtiss v. Leavitt, (15 N. Y., 9), which 
 related to corporate powers under the banking law, 
 and in New York, New Haven & Hartford EaUroad 
 Co. V. Schuyler (17 N. Y., 592), involving the power 
 of a court of equity to remove as a cloud upon the 
 title of general stockholders, spurious certificates of 
 stock issued by the officer having apparent authority 
 to do so, and in Bissell v. Michigan Southern & 
 Northern Indiana Eailroad Co. (22 N. Y., 258), in 
 which he discussed the doctrine of ultra vires. 
 While he was at times forced to dissent from his 
 associates, it is noteworthy that in the only instance 
 of a dissent on his part which was brought before the 
 Supreme Court of the United States for review, that 
 court sustained the views expressed by him in his 
 dissenting opinion and reversed the judgment of the 
 Court of Appeals. 
 
 He was never vivacious, never oratorically ornate, 
 never imaginative or fanciful. Hjs product iwas 
 nothing less than nuggets of pure wisdom; his ap- 
 
234 LANDMARKS OF A LAWYER'S LIFETIME 
 
 peal was to the intellect, and upon the intellectual 
 he created a profound impression. He used to say 
 that the foundation of his legal knowledge was laid 
 during his early practice in the courts of justices of 
 the peace with only one law book at his command 
 from which to draw his legal inspiration — Cowen's 
 Treatise — and that the other source of it was in the 
 performance of his duties as reporter of the Court 
 of Appeals, the results of his labour being embodied 
 in the head notes of the cases reported in the four 
 volumes of Comstock's Reports which are recognised 
 as of the highest order of excellence, and of which 
 the Court of Appeals said: "His work as a re- 
 porter has furnished a model which his successors 
 have aimed to imitate, but have never been able to 
 surpass." 
 
 He was tall and spare, his movements were some- 
 what awkward, he rarely used gestures except when 
 he wished to strike a hard blow. His voice was 
 deep and resonant; his articulation distinct and 
 clear ; his utterance was somewhat slow and hesitant. 
 His countenance was long and just a trifle drooping, 
 as though over-weighted with intellectual power, and 
 was crowned by a growth of beautiful silvery hair. 
 He only spoke to utter wisdom, and wisdom seemed 
 in him to beget seriousness. His face did not light 
 up and glow with expression, but most of the time 
 it was over-cast with a kind of dreaminess and sol- 
 emnity, as though he were living in a world of 
 thoughtfulness, but there was nothing gloomy about 
 him; on the contrary, in social life, while never ex- 
 uberant, effusive, or talkative, his simplicity, sin- 
 
GEORGE F. COMSTOCK 235 
 
 cerity and consideration for others, was singularly 
 attractive. 
 
 In the long line of judges who have come and gone 
 since the formation of the Court of Appeals under 
 the constitution of 1846, 1 do not know of any other 
 judge, who, in so short a time, achieved such distinc- 
 tion, and left such an impress upon the body of 
 the law in this State as Judge Comstock. He was on 
 the bench only about six years, but in that brief time 
 he won an enduring reputation as possessing the 
 mind of a master, with a breadth of knowledge of 
 legal principles equalled by few, and excelled by 
 none. He once said to me jocosely: "You know. 
 Strong, I am an expert on trusts," but in saying it 
 he was merely expressing what was the cormnon 
 opinion in the profession, and any one who has suf- 
 ficient interest to read the cases of Savage v. Burn- 
 ham (17 N. Y., 561) and Downing v. Marshall (23 
 N. Y., 366), both of them imperishable landmarks in 
 the law, will have no doubt whatever that on these 
 subjects he was learned and profound. My father 
 sat with him in the Court of Appeals and I heard 
 him pay the highest tributes to his natural powers 
 and his legal attainments. 
 
 In one of the great cases in the Court of Appeals, 
 that of the New York & New Haven & Hartford 
 Railroad Co. v. Schuyler (34 N. Y., 30), in which as 
 a judge of that court he had rendered an able opin- 
 ion, reported in 17 N. Y., Eeports, 561, he was re- 
 tained as counsel after his retirement from the 
 bench, and in the opinion of the court, his argument 
 was referred to by Judge Selden, in these words : 
 
236 LANDMARKS OP A LAWYER'S LIFETIME 
 
 "But these views do not dispose of the question that has 
 been argued in this case with an elaboration and power 
 seldom equalled in a court of justice." 
 
 This is not the place to enter upon an examination 
 of Ms record as a judge, nor is it necessary to do so, 
 for there may be found in a publication entitled 
 ' ' Great American Lawyers ' ' a just and appreciative 
 account of his opinions in celebrated cases, by Pro- 
 fessor Thaddeus D. Kenneson. 
 
 In the Constitutional Convention of 1867, Judge 
 Comstock bore a prominent part in formulating 
 changes in our judicial system, which resulted in 
 constituting the Court of Appeals as it now exists, 
 and he is generally regarded as the father of the 
 present system. I think he expected to be nomi- 
 nated by the Democrats as Chief Judge of the Court 
 of Appeals, and this I believe was the general ex- 
 pectation of the bar, but, by reason of circumstances 
 to which I have alluded in connection with Chief 
 Judge Church, he was not nominated and the juris- 
 prudence of this State lost the services of one who 
 would undoubtedly have been a distinguished orna- 
 ment. 
 
 Upon his death the Court of Appeals did honour 
 to his memory in a tribute from which the following 
 is an extract: 
 
 "During the period of his service he was associated 
 with such able judges as Denio, Selden, Gardiner, Johnson 
 and "Wright, and it is no exaggeration to say that he was 
 the peer of any of them. His opinions are among the 
 ablest to be found in the reports of this State, and for 
 vigour of thought, terse and accurate expression, forcible 
 
GEORGE P. COMSTOCK 237 
 
 reasoning, close logic and beautiful diction they have rarely, 
 if ever, been surpassed among the judicial writers of this 
 country. Many of his opinions have become leading au- 
 thorities in various branches of the law, and have largely 
 influenced the course of decisions in this and other States. 
 After leaving the bench he Jigain entered upon a large and 
 lucrative professional practice. His services were sought 
 for in many of the most important cases that came before 
 the court during the most of the past thirty years. In 
 his arguments in this court his briefs were elaborated with 
 great learning and care, and the most abstruse and diffi- 
 cult subjects were illuminated by breadth of learning, and 
 a force of persuasive logic, which added to the labour of 
 opposing counsel, but lessened that of the Court. He was 
 fearless and ardent in the advocacy of his cause, and yet 
 always courteous and deferential to the Court. He has 
 gone from the habitations of men, but his work remains be- 
 hind him, and it is believed that his opinions will influence 
 the jurisprudence of this coimtry and instruct the students 
 of law for generations to come." 
 
 I have never heard of any other lawyer in this 
 State, and I do not believe there has ever been any, 
 who, although residing in another part of the State 
 and having no office in New York City, and using no 
 means to identify himself with practice in the city of 
 New York, ever secured such extensive employment 
 in cases of the utmost importance as did Judge Com- 
 stock. He continued to reside in Syracuse until his 
 death. When in New York he used the Windsor 
 Hotel, which stood on Fifth Avenue between 46th and 
 47th Streets, and his consultations were either in the 
 offices of those who retained him or at his hotel. It 
 was his unvarying habit to have a good long sleep 
 
238 LANDMARKS OF A LAWYER'S LIFETIME 
 
 after dinner, and whenever an appointment was 
 sought with him for a consultation in the evening, 
 he would never appoint it before nine o'clock, and 
 I have sometimes knocked at his door at the time 
 named only to arouse him from his sleep, when he 
 would excuse himself to indulge in ablutions from 
 which he would appear absolutely refreshed, with 
 mind clear and strong, and ready for almost any 
 amount of labour. His practice in New York must 
 have been very large, and the extent of his employ- 
 ment was indeed remarkable when it is considered 
 that he had no office and that it was ncessary to seek 
 him at Syracuse, if his services were to be secured. 
 He was counsel in the large will contests, notably in 
 that of Commodore Vanderbilt's will, in which he 
 was retained because of the expressed wish of Com- 
 modore Vanderbilt that in case of a contest his 
 services should be secured. He also acted in cases 
 for the city. 
 
 He was successful in overturning the cumulative 
 sentence against William M. Tweed. The decision 
 in this case aroused the indignation of Mr. 'Conor, 
 who was connected with it, and led him to indulge 
 publicly in severe and caustic criticism of the Court 
 of Appeals, which, unfortunately for him, met the 
 general disapproval of the bar. Judge Comstock, 
 quite naturally, defended the court from these asper- 
 sions, and in a letter published in the newspapers 
 he used the following language : 
 
 "I have long known Mr. 'Conor, and have long been 
 accustomed to think of him with all the respect which is 
 due to eminent talents and unsiillied purity of character. 
 
GEORGE P. COMSTOGK 239 
 
 His best friends, among whom I wish to be numbered, must 
 deeply regret the step he has taken; most profoundly do 
 I regret it. But I remember that the greatest and best of 
 men sometimes have faults. If Mr. 'Conor has such, they 
 are only spots on the shining orb of the sun. If I might 
 venture a word further, I should say: Alas, with all his 
 admirable qualities, he is despotic and intolerant. Woe to 
 the luckless wight who stands in his way. Woe to the 
 judges who decide against him in a case which he has 
 nursed, and on which he has bestowed his affectionate re- 
 gard." 
 
 He Tvas called upon largely for opinions upon 
 questions of trusts, and if he had removed to New 
 York, he would probably have occupied the foremost 
 place at the bar. I remember feeling greatly com- 
 plimented on being retained by him in a matter of 
 his own, involving compensation which he had 
 earned in a case in which he represented the city. 
 The fee was considerable, but the matter itself was 
 not difficult, and I was delighted to think that he 
 should have sufficient confidence in me to avail him- 
 self of my services. I was certainly diligent in 
 looking after his interests and he was equally dili- 
 gent in looking after me, for no client of mine, not 
 even a woman client, ever kept me moving with 
 greater activity than did Judge Comstock. It was 
 not because he was grasping or miserly, for there 
 was not an atom of this in his composition, but he 
 wanted his rights, just as any other client, only he 
 was unusually persistent in seeing that his lawyer 
 did not neglect them. It was with the greatest 
 pleasure that in an unusually short time, through 
 
240 LANDMARKS OF A LAWYER'S LIFETIME 
 
 the kindness of the then District Attorney, Mr. De- 
 lancey Nicoll, I was able to send Judge Comstock the 
 entire amount he demanded without any deduction 
 for a fee on my own account. No grateful client 
 ever expressed himself more enthusiastically than 
 did this great client of mine. 
 
 Judge Comstock was very liberal, and, perhaps, 
 extravagant in his expenditures. He lived in 
 elegant surroundings in Syracuse, and was a gen- 
 erous contributor to worthy objects. Among his 
 contributions was one of $60,000 for the foundation 
 of a school at Manlius, New York, and another $50,- 
 000 to Syracuse University. But notwithstanding 
 his remarkable abilities and his large earnings he 
 became, in later years, involved in a series of un- 
 successful ventures connected with the salt indus- 
 tries of Syracuse, and these, with family bereave- 
 ments and decaying power, brought misfortune and 
 sadness to his declining years. Finis coronat opus 
 was not true in his case, for his end was a crown of 
 sorrow, but in the long line of jurists who have 
 adorned the jurisprudence of this State, he will al- 
 ways wear a crown of glory. 
 
CHAPTER XI 
 
 JOHN K. PORTER 
 
 My profound respect and deep affection for John 
 K. Porter and my reverence for his memory make 
 it difficult for me to speak of him, except in terms 
 which might be regarded as undue praise by those 
 who did not know him well. Nevertheless there 
 were, I believe, many of his contemporaries who 
 would yield a willing assent to every word. In his 
 case I could not claim to be impartial because I 
 admired him so much that my sentiment would quite 
 likely influence my judgment. At the time my ac- 
 quaintance with him began he was one of the three 
 great leaders of the bar of New York City. I did 
 not, however, gaze upon him from afar, as in the case 
 of Mr. 'Conor, nor was my acquaintance with him 
 somewhat formal, as in the case of Mr. Evarts, but 
 it developed almost immediately into an intimacy 
 which created a relation akin to that of father and 
 son. 
 
 Judge Porter and my father were old acquaint- 
 ances and cordial friends. When a law student 
 I used to meet him frequently, and the remarkable 
 cordiality and friendliness of this great man in these 
 casual meetings toward such an insignificant be- 
 ginner as myself aroused my respect and regard. 
 Upon the death of my father it became necessary 
 for me to retain the services of an able and experi- 
 
 241 
 
242 LANDMARKS OP A LAWYER'S LIFETIME 
 
 enced counsellor in a rather important case, and I 
 naturally turned to Judge Porter. I have referred 
 to this incident in the chapter entitled "The Modem 
 LaTvyer. ' ' 
 
 At this time Judge Porter had heen in New York 
 City about five years. We were very congenial, and 
 our intercourse was informal and intimate. I think 
 he liked y-oung men, and his encouragement of my 
 visits led me to think that he craved the friendly 
 intercourse of a young man, not a business associate, 
 to whom he could unburden himself, and pour into 
 sympathetic ears reminiscences of his early days. 
 He was never distant or formal, nor was he familiar 
 or patronising ; he was never coarse, profane or vul- 
 gar ; he was just simple, courteous, genial and warm- 
 hearted. There was in his nature what I have al- 
 ways thought of as an oriental richness, manifested 
 in his affectionate disposition, his graciousness, and 
 what I may perhaps characterise, as fervor, in his 
 manner as well as in his glowing language and the 
 impressiveness of his utterances. It was a delight 
 to be with him and to listen to him as he poured 
 forth a generous flow of earnest and highly wrought 
 expressions while he dwelt upon days that were 
 past, or commented upon current events. He was 
 broad and catholic in his views; he had powerful 
 likes and dislikes, but upon the latter he rarely 
 dwelt, one of his characteristics being to cover his 
 dislikes with the veil of charity. He was one of the 
 most magnanimous men I ever met; he was never 
 self-seeking; he never sought to lift himself at the 
 expense of another; he never endeavoured to snatch 
 
JOHN K. PORTER 243 
 
 the wreath from the brow of a rival. He was always 
 ready to sacrifice personal glory that he might 
 afford one of his juniors an opportunity. He re- 
 joiced in the achievement of another, although it 
 might have been at the expense of his own. He was 
 learned, strong and forceful; he recognised the vul- 
 nerable point of attack and no one knew better than 
 he how to use the weapons of defense. His oratory 
 was rich and glowing, and it was pervaded by a 
 supreme earnestness, which gave to his utterances 
 the deep impress of personal conviction as to the 
 justice of his cause, and at the conclusion of one of 
 his arguments the impression left on the miad was 
 not so much admiration for his oratory, as such, but 
 that the natural garb in which he had fittingly 
 clothed it was the expression of his deep and sincere 
 convictions. He was so warm-hearted that he lent 
 the best qualities of his mind to the troubles and 
 perplexities of others, and extended a generous 
 sympathy when he expressed his opinion and advice. 
 He endeared himself to every one. I do not see how 
 he could have had an enemy. He was so patient, so 
 considerate, so free from acerbity of temper, so tol- 
 erant of the foibles and frailties of others, and 
 exacted so little, when he expended so much. This 
 is indeed high praise, but among the comparatively 
 few remaining who knew him during the ten years 
 between 1873 and 1883, I venture to say that there 
 would not be a dissenting voice. 
 
 His birthplace was in Waterford, N. Y., where his 
 father practiced medicine. His father's desire be- 
 ing that his son should follow in his steps, he, in 
 
244 LANDMARKS OF A LAWYER'S LIFETIME 
 
 fact, made a beginning in this direction, but his heart 
 was never in the study of medicine— the whole bent 
 of his mind being toward the law, and, accordingly, 
 much to his father's disappointment, he entered 
 upon its study and found in it a congenial task. 
 
 He had the usual experience of a young country 
 practitioner and, although, as he expressed it, his 
 knees trembled beneath him and his tongue clove to 
 the roof of his mouth when he first attempted to ad- 
 dress the Court, he very soon became an accom- 
 plished speaker and at the early age of twenty-eight 
 was sent to the Constitutional Convention in 1846. 
 He was so effective in his address to the Conven- 
 tion, advocating the proposition that thirty years 
 should be fixed as the age limit under which no one 
 should be elected governor, that it called forth from 
 Charles 'Conor, also a member of the Convention, 
 the tremendously complimentary observation that: 
 "The young gentleman had furnished to the Conven- 
 tion in his own person and capacity the best argu- 
 ment that could be presented in refutation of his 
 views." 
 
 During these early days he came into intimate 
 contact with one of the greatest lawyers that this 
 State has ever produced — Nicholas Hill — ^who, al- 
 though he died prematurely at the age of 54 years, 
 was the commanding figure among all the lawyers 
 who practiced before the Court of Appeals, so much 
 so that he was popularly known as "the King of the 
 Court of Appeals." Mr. Hill in his early days re- 
 sided in Saratoga, near which "Waterford is situated. 
 He was associated with Judge Esek Cowen, one of 
 
JOHN K. PORTER 245 
 
 the justices of the Supreme Court, and in collabora- 
 tion with Judge Cowen he prepared that famous 
 work, that monument of erudition and legal learn- 
 ing: "Cowen & Hill's Notes to Phillips on Evi- 
 dence." Undoubtedly it was in the preparation of 
 this work that Mr. Hill laid the foundation, broad 
 and deep, of the remarkable learning and powerful 
 analysis which he possessed. 
 
 Judge Porter once told me the story of the forma- 
 tion of the famous firm of Hill & Cagger. Mr. Hill 
 was then developing the remarkable powers which 
 gave him such a commanding position at the bar, 
 and was about to remove or had recently removed 
 to Albany to enter upon practice there. Peter Cag- 
 ger was a little red-haired Irishman of common ex- 
 traction, known as a very wily and expert politician 
 and as an industrious lawyer of no great attain- 
 ments, but of excellent common-sense and business 
 sagacity, who had gathered about him a large body 
 of valuable clients. He was very anxious to have 
 Mr. Hill as his partner, but the latter not contem- 
 plating with any satisfaction a partnership with 
 such an ordinary personage as little red-headed 
 Peter Cagger declined the proposition with scorn. 
 It so happened, however, that Judge Cowen had a 
 very interesting law library, which had always been 
 at Mr. Hill 's command, and had been gathered with 
 great pains by Judge Cowen, containing not only 
 many books, then rare and expensive, but was 
 particularly complete in the legal literature of the 
 time. On Judge Cowen 's death, Mr. HiU was very 
 anxious to procure this library, but he lacked the 
 
246 LANDMARKS OF A LAWYER'S LIFETIME 
 
 means of so doing. There was great danger of its 
 sale or dispersion and he endeavored in vain to make 
 some arrangement to obtain it, short of paying cash 
 for it. He was in despair of being nnable to do so. 
 In some inexplicable way the knowledge of Mr. Hill's 
 desire was made known to Peter Cagger. He recog- 
 nised his opportunity. Accordingly he went to Mr. 
 Hill and explained to him, as he had done before, the 
 pecuniary benefits he would derive from a partner- 
 ship, and followed it up by saying to Mr. Hill that 
 he had heard that he was anxious to procure Judge 
 Cowen's library, and asked him if it were true. Mr. 
 Hill said that it was, and that he regretted his in- 
 ability to secure it. Mr. Cagger then said, "Now, 
 Mr. Hill, if you will become my partner, I will buy 
 for you as yours Judge Cowen's library." This 
 was too much for Mr. Hill, and the firm of Hill & 
 Cagger was formed. Judge Porter then added that 
 the firm of Hill & Cagger entered upon a career of 
 almost unexampled prosperity. The business be- 
 came so great that Mr. Hill felt obliged to confine 
 himself to practice in the Appellate tribunals, chiefly 
 the Court of Appeals, and as was quite natural, Mr. 
 Hill, in seeking a junior partner, found no one more 
 to his liking than John K. Porter, and the firm be- 
 came Hill, Cagger & Porter. For perhaps six or 
 seven years Judge Porter was the jury lawyer of 
 that firm. Before juries he was particularly attrac- 
 tive and successful. The sincerity, the earnestness, 
 the glowing language and fervor of his oratory, to 
 which I have already alluded, was such that before 
 a jury he was almost irresistible. He would clothe 
 
JOHN K. PORTER 247 
 
 the most commonplace case in a dress that was in 
 such good taste, and so beguiling, that it would seem 
 to be almost an angel of light, and his warnings to 
 the jury against the efforts of his adversary in the 
 same direction were exceedingly impressive. They 
 reminded one of Disraeli's famous expression "that 
 the Whigs had caught the Tories bathing and had 
 walked away with their clothes." I remember hear- 
 ing him utter one of these warnings, in which he 
 quoted with great force, the lines of MUton : "Who- 
 ever knew truth put to the worst in a free and open 
 encounter. For who knows not that Truth is strong 
 next to the Almighty. She needs no policies, no 
 stratagems to make her victorious. These are the 
 shifts that error uses against her power." 
 
 Upon Mr. Hill's death, in 1859, Judge Porter nat- 
 urally succeeded to his place. That he worthily 
 filled it is beyond all question. Two cases alone of 
 the many which he argued would establish beyond 
 dispute his fame as a lawyer. One of these was 
 Delafield v. Parish, (25 N. Y., 9), which was a con- 
 test of Mr. Parish's will in which his descendants 
 were represented by Charles 'Conor and the pro- 
 ponents by William M. Evarts. Nothing could more 
 clearly indicate Judge Porter's great attainments 
 and eminence as a lawyer than the fact that he was 
 retained by that master of the law, Charles 'Conor, 
 to act with him as counsel in the Parish will case. 
 Nor was Mr. 'Conor's estimate of the value of his 
 services unwarranted, for of all the masterly produc- 
 tions of that important case the argument of Judge 
 Porter before the Court of Appeals was the chief. 
 
248 LANDMARKS OP A LAWYER'S LIFETIME 
 
 and as a specimen of clear and skillful reasoniag, 
 of masterly marshalling of the facts, and impressive 
 presentation of the whole, this argument at the close 
 of the case has been rarely equalled. 
 
 Another case in which he displayed great power 
 was that of the Metropolitan Bank v. Van Dyke, (27 
 N. Y., 400), involving the question of the constitu- 
 tionality of the Legal Tender Acts. This was a fur- 
 ther instance of a great tribute to his efficiency. 
 William Curtis Noyes, then one of the leaders of the 
 bar, was counsel for Mr. Van Dyke, in support of 
 their constitutionality. When the case came to the 
 Court of Appeals Judge Porter was retained to as- 
 sist Mr. Noyes. It was a pure question of constitu- 
 tional law; it involved the single proposition whether 
 the government notes, ever since in common use, 
 were a legal tender to discharge a debt. Fortu- 
 nately, Judge Porter's argument was preserved and 
 if one desires to read a magnificent specimen of close 
 reasoning, clothed in the choicest language, which 
 makes a dry and uninteresting subject glow with life 
 and interest, he should read Judge Porter's argu- 
 ment as given in a volume entitled "Great Speeches 
 by Great Lawyers," edited by William L. Snyder. 
 His manner before Appellate tribunals was very 
 different from that before juries. There was the 
 same earnestness and sincerity, there was the same 
 rich and glowing language and there was his fervour 
 of spirit, but over the whole was a subdued, defer- 
 ential manner, persuasive rather than compelling, 
 characterised by absence of address to feeling or 
 sentiment and was an appeal to the intellect alone. 
 
JOHN K. PORTER 249 
 
 Quite as was to be expected, Judge Porter was 
 soon offered a seat upon the Court of Appeals bench 
 by appointment, to which he was subsequently elected 
 for a full term. His was not the nature of a 
 judge; he could not be trammeled and tied down to 
 a position which another judge of the Court of Ap- 
 peals described to me as beiag "like a bear chained 
 to a stake," and his great abilities were sought by a 
 prominent firm with a large business in New York 
 City, which subsequently became known as Porter, 
 Lowrey, Soren & Stone. 
 
 It was from 1873 to 1880 that I knew him inti- 
 mately. After that time the exactions of my prac- 
 tice necessarily left less opportunity to seek his 
 society and, besides this, the lamented death of Presi- 
 dent Grarfield at the hand of Guiteau resulted in 
 Judge Porter being retained on behalf of the govern- 
 ment to prosecute the assassin, and he was not much 
 in New York, but the old affection and respect re- 
 mained. This was in fact the termination of Judge 
 Porter's career. He entered with all the earnest- 
 ness, energy and industry of his nature into the pre- 
 paration of this case, and his presentation of it to 
 the jury is a matter of history. The record of the 
 trial discloses the tremendous ordeal through which 
 Judge Porter passed, subjected to all manner of 
 interruptions and insults by the prisoner, and to like 
 interruption by the prisoner's counsel, rendering 
 the trial one of the most disorderly scenes that was 
 ever enacted in a court of justice. For two and one- 
 half months the trial dragged its slow length along 
 and, on January 23, 1882, Judge Porter commenced 
 
250 LANDMAEKS OF A LAWTBR'S LIFETIME 
 
 his summing up to the jury which occupied three 
 days. I have a copy of his summing up which he 
 presented to me, as he expressed it, "with the cordial 
 regard of his friend — John K. Porter." 
 
 I have been looking it over recently, after the lapse 
 of many years, and all through it will be found the 
 interruptions of the prisoner and his counsel, which 
 were well calculated to disconcert counsel, destroy 
 the continuity of his argument and render his ad- 
 dress ineffective. But the assassin was convicted. 
 President Garfield's was not the only career cut 
 short nor the only life destroyed by the hand of 
 Guiteau, for Judge Porter retired from the dis- 
 charge of his duty a broken man, his career ended, 
 consigned to what was in reality a lingering death. 
 No soldier ever more truly sacrificed his life on the 
 altar of his country than did John K. Porter. 
 
 I have always preserved in my personal archives a 
 note which Judge Porter sent to me when I was 
 nominated for a judgeship in 1885, and I hope it will 
 not be presmnptuous or self-laudatory if I offer it 
 as not only evidence of his friendship, but as a testi- 
 monial to the two Judge Strongs, my father and his 
 cousin, to whom I have elsewhere referred: 
 
 "Fifth Avenue Hotel 
 Madison Square, New York, 
 Oct. 30, 1885. 
 My dear Judge Strong: — 
 
 I need not say how delighted I was with your nomina- 
 tion and I much regret that my residence at my "Waterford 
 birthplace will deprive me of the pleasure of voting for 
 you 'early and often' as John Van Buren would have 
 
JOHN K. PORTER 251 
 
 tempted me to say. Your father and kinsman have in- 
 scribed upon the roll of eminent jurists names to which I 
 am glad to know you will add new honour 
 
 "With hearty congratulations, 
 Your friend, 
 
 John K. Porter. ' ' 
 
CHAPTEE XII 
 
 A GREAT rATHER-LN-LAW 
 
 The most illuminating instructor I have ever 
 known was Theodore W. Dwight. I believe he is 
 generally recognised as one of the most efficient pro- 
 fessors of law that this country has ever seen; I 
 doubt if he has ever been equalled, unless by Mr. 
 Justice Story. He was a father-in-law to more than 
 ten thousand law students, who freely acknowledge 
 his wonderful capacity as an instructor, and a debt 
 of gratitude which they can never repay for the 
 benefit he conferred in educating them in an accu- 
 rate knowledge and correct appreciation of legal 
 principles, and in a genuine love for their profes- 
 sion. He was allied to the Strong family through 
 his mother, Sophia Woodbridge Strong, and has 
 shed lustre upon it. 
 
 I had been reading law far one year in my father's 
 office when I entered the Columbia Law School under 
 Professor Dwight. He was the creator of that law 
 school ; his success as an instructor was phenomenal. 
 From the very beginning students flocked to it in 
 large numbers and at the time I entered there were 
 probably 300 students in attendance. It soon came 
 to be recognised as the leading law school of the 
 country. I have always thought that it was an ex- 
 ceedingly unwise and ungracious act on the part of 
 the management of Columbia College under Presi- 
 
 262 
 
A GREAT PATHBR-IN-LAW 253 
 
 dent Seth Low to attempt, during Professor 
 Dwight's lifetime, to revolutionise his system of in- 
 struction, which necessarily involved his retirement, 
 and brought disappointment and grief to his declin- 
 ing years. The law school when I entered it was at 
 the height of its renown and usefulness, and Profes- 
 sor Dwight was the whole law school. He gave in- 
 struction in every subject in its regular course. At 
 the present time, in the different law schools, the 
 various subjects are treated by separate instructors, 
 but in his time jurisprudence down through com- 
 mon law, chancery, real estate tenures, trusts, 
 testamentary dispositions, and the Code, was ex- 
 pounded by him. He was a master instructor in 
 the whole field of the law. Some of the ablest law- 
 yers of the time were taught by him, and the fruits 
 of his instruction as exemplified by his pupils, will, 
 I believe, compare favourably with those of any 
 later time. The sessions of the school were held in 
 what was formerly a large dwelling house in La- 
 fayette Place. The course covered two years and 
 the students were divided into two classes, junior 
 and senior, and these classes were divided into two 
 sections, involving two daily sessions of two hours 
 each for each class, one in the morning and the other 
 in the afternoon. No other attendance at the law 
 school was required, the students being connected 
 with various law offices in which they rendered serv- 
 ice, and in their unoccupied time, or in the evening, 
 prepared their lessons for the succeeding day. 
 
 One day in each week we were required to take his 
 lectures from dictation, in which the general prin- 
 
254 LANDMAKKS OF A LAWYER'S LIFETIME 
 
 ciples which, he had discussed were embodied, with 
 references to some eases. These were carefully 
 treasured by his students, and, to many of them, they 
 served as a useful guide in the early days of their 
 practice. The moot courts were also of interest, but 
 how he managed to preserve a straight face while 
 listening to some of the arguments presented, it was 
 difficult to understand, especially as they were calcu- 
 lated to and did provoke great merriment among 
 the students. 
 
 At the conclusion of the two-years' course, an ex- 
 amination was held, which, if successfully sustained, 
 entitled the student to admission to the bar without 
 the usual bar examination, on presentation of his 
 diploma, under the authority of an Act of the legis- 
 lature of the State to that effect. Soon after the 
 passage of that Act, a student presented himself 
 with the necessary credentials required for ad- 
 mission to the bar, but he was denied admission 
 on the ground of its unconstitutionality. This was 
 followed by an appeal to the Court of Appeals in 
 which Professor Dwight acted as counsel for the 
 applicant. The report of the case (Matter of 
 Cooper 22 N. Y., 67) contains an admirably exhaus- 
 tive history of the order of attorneys, and the mode 
 of their admission to the bar in England and in the 
 Colony and State of New York and, as a result of 
 Professor Dwight 's argument, the Court of Appeals 
 sustained the constitutionality of the act, and from 
 that time forward the students were admitted with- 
 out examination. 
 
 Professor Dwight 's personality was sufficient of 
 
A GREAT FATHER-IN-LAW 255 
 
 itself to attract young men. He was large and dig- 
 nified, his manner was exceedingly courteous and 
 affable, and he had a particularly frank and open 
 countenance, with a beautiful play of expression in- 
 dicative of benevolence, sympathy, kindliness and 
 warm-heart, and these were true indicia of his real 
 character. There is a portrait of Professor Dwight 
 which was presented to the Association of the Bar 
 and hangs in its library, and while there is lacking 
 somewhat of the beautiful lighting up of his counten- 
 ance, it at least indicates the traits which I have al- 
 ready mentioned. I doubt, however, whether among 
 the younger members of that Association, the por- 
 trait itself is associated with Professor Dwight un- 
 less they have had occasion to inquire whom it repre- 
 sents ; so transitory is the fame of a truly great man. 
 His relations with his students were always singu- 
 larly pleasant. His manner was winning and sym- 
 pathetic; he was always so accessible; always so 
 ready to enter into their plans and lend them a 
 helping hand that he made every one of them his 
 ardent admirer and friend. Neither in the class 
 room nor anywhere else, even with the most stupid 
 and blundering, was he ever impatient or petulant. 
 He never held them up to ridicule or contempt; he 
 never censured them, and he never did anything 
 which would tend in the slightest degree to mortify 
 them. He had a wonderful faculty of identifying 
 each by name. I was greatly impressed with this 
 within two or three days after our class entered, 
 when I witnessed the perfect command which he 
 seemed to have of the name as connected with the 
 
256 LANDMARKS OF A LAWYER'S LIFETIME 
 
 personality of each, student, enabling Mm in recita- 
 tion to single out by name tbe particular student 
 whom he wished to call upon to respond to his ques- 
 tion. His whole attitude toward his classes seemed 
 to be that of stimulation and forbearance. Uncon- 
 sciously each student would be put upon his mettle 
 to acquit himself creditably, and yet Professor 
 Dwight was exceedingly forbearing if his expecta- 
 tions were not realised. Of course, ludicrous inci- 
 dents would occur when absolutely irrelevant re- 
 plies were given to his interrogations, and absurd 
 inquiries and comments made upon matters under 
 consideration, creating outbursts of laugbter in 
 which, however, he did not join, except that a some- 
 what amused but rather discouraged expression 
 would steal over his countenance. 
 
 I have never met any instructor whose personal 
 character seemed to be impressed on the students 
 more indelibly than was his. There was a very high 
 moral tone to all his instructions ; he was a Christian 
 in the highest sense of the term and he was a lover 
 of mankind, as his broad philanthropic interests and 
 associations in various directions would indicate, if 
 I were to specify them. One of his favourite re- 
 marks in the course of his lectures on equity juris- 
 prudence was: "No one can be a good equity law- 
 yer unless he himself is a good man." The moral 
 sense was so interwoven in his own mind with a 
 sense of equity, as applied to human affairs, that 
 he could not understand how anyone could admin- 
 ister equity without possessing genuine morality. 
 The result of the profound impression which his 
 
A GREAT FATHER-IN-LAW 257 
 
 personal character made was one of unbounded re- 
 spect, and notwithstanding his students were made 
 up of all sorts and conditions of young men, with all 
 the vivacity, exuberance and untamed spirit of 
 youth, I do not recall a single instance in his presence 
 in his class room of anything which was inconsistent 
 with courtesy and decorum. He never had to ad- 
 monish or call to order even the most listless and 
 thoughtless. If there was anything bordering on 
 frivolity, a kindly expression of pained surprise 
 would be manifest in his countenance, and the whole 
 scene would be transformed. As Phillips Brooks 
 put it once, there seemed to be the "harmonious 
 blending of the knowing and loving powers." 
 
 His instruction was based upon legal principles 
 contained in text books, such as Blackstone's Com- 
 mentaries, Parsons on Contracts, Story's Equity 
 Jurisprudence, Washburn on Real Property, and 
 other works of a similar character. He dealt with 
 principles not with cases. He mapped out the law 
 as an orderly and reasonable system ; his endeavour 
 was to inculcate the principles and teach how to 
 apply them. 
 
 His instruction was of the most luminous descrip- 
 tion. In considering some of the subjects we might 
 well have asked, "can these dry bones live?" And 
 the answer would have to be "yes" emphatically. 
 He would take the dry subjects of Siezin, Limita- 
 tions of Estates, and Trespass, and clothe them with 
 diction and accompany them with illustration which 
 would make them living and real with interest, 
 and capable of mental grasp by the dullest mind. 
 
258 LANDMARKS OF A LAWYER'S LIFETIME 
 
 At the end of it all, when the time for final examina- 
 tion came, and the days of applying his instruction 
 to everyday practice began, one's knowledge would 
 have been classified and arranged in such a way 
 under his instruction, that it seemed to be like sepa- 
 rate packages of law papers, each in its proper pi- 
 geon-hole, ready for use whenever wanted. Under 
 him the law was not a confusion of things, but a finely 
 systematised and well-arranged body of legal princi- 
 ples. In fact one seemed to have his legal princi- 
 ples in a well arranged tool-chest, enabling one to 
 bring out the right tool, just as a carpenter would go 
 to his tool-box and bring out the right chisel or plane 
 as the occasion required. Shall we ever see his like 
 again? 
 
 He rarely referred to cases except by way of illus- 
 tration. He was in no sense a case lawyer and it 
 was upon this subject, I think, that he differed so 
 radically with the authorities of Columbia College 
 with respect to the introduction of the system of 
 studying law by considering principles as deduced 
 from adjudged cases, otherwise known as the "case 
 system," that led to his retirement. The "case sys- 
 tem" was the system of the Harvard Law School. 
 What its effect is upon students under that system, 
 it is impossible for me to say, but he believed, and in 
 this I think he was correct, that it tended to make 
 "case lawyers" instead of lawyers educated in the 
 principles of the law apart from particular cases in 
 which those principles are applied. Certain it is 
 that the greatest lawyers of ancient and modern 
 times are those which have been educated upon sub- 
 
A GREAT FATHER-IN-LAW 259 
 
 stantially the same system as that adopted by Pro- 
 fessor Dwight. There never have been greater law- 
 yers than those of the first half of the last century, 
 and no lawyer who has observed the tendencies of 
 the times with respect to the consideration of legal 
 questions under the "case system," has failed to 
 notice that the bar is made up of a large body of 
 "case lawyers" who never consider a subject on 
 principle but seek to find some parallel case. 
 
 He used to describe his method as "Socratic, il- 
 lustrative and expository"; his instruction was 
 largely by questions to the student followed by an ex- 
 position of the particular phase of the matter which 
 was the subject of the question, and then he would 
 quite likely follow it up by some apt illustration 
 taken from legal history or some interesting case. 
 I recall an instance of this when we were studying 
 the subject of equitable conversion which, to the stu- 
 dent mind, requires some thought to appreciate its 
 full meaning and importance. For the uninitiated, 
 I may remark that this is a doctrine of equity juris- 
 prudence which, in certain cases where equity re- 
 quires it, especially in connection with wills, treats 
 personal property as real estate or real estate as 
 personal property to effectuate the intention of the 
 testator. He explained the subject to us in his 
 luminous way and followed it with an illustration 
 which impressed the doctrine indelibly upon our 
 minds. He said that John Scott was the son of a 
 coal dealer of New Castle upon Tyne in England 
 who, after studying law, entered upon the career 
 of a barrister, and that his first step was to get 
 
260 LANDMARKS OF A LAWYER'S LIFETIME 
 
 married witliout anything to support Mm escept 
 his unaided efforts. He found progress very slow, 
 and picked up a precarious living by appearing in 
 court, principally in cases where there was no op- 
 position, and for which he would receive the custom- 
 ary fee of one guinea. He was, however, studying 
 with zeal to qualify himself for better days to come. 
 It so happened that a brief in the case of Ackroyd 
 V. Smithson was handed to him to give the usual 
 consent to a decree. As the decree was adverse to 
 the parties for whom he was to appear, he ex- 
 amined it somewhat carefully, but the decree seemed 
 to be so well supported by authority that he hesitated 
 to question it. He made up his mind, however, that 
 the doctrine of equitable conversion which, until 
 that time, had not been established, could be ap- 
 plied to the case, with the effect that the decree, 
 adverse to his clients, would be transformed into 
 one in his clients' favour. He therefore suggested 
 to the solicitor who employed him that he should 
 raise the question before Lord Chancellor Thurlow, 
 who was to sign the decree. The solicitor dis- 
 couraged this but finally, after some persuasion, 
 consented to permit him to raise the point upon the 
 understanding that he should receive no further fee. 
 Accordingly he appeared before Lord Chancellor 
 Thurlow, opposed by an array of prominent counsel, 
 and intimated his desire to argue the question. 
 Lord Thurlow was scarcely willing to listen to a re- 
 argument upon the subject as the matter seemed to 
 have been so well settled, but finally consented to 
 hear it. It has been said that no one was ever half 
 
A GREAT FATHER-IN-LAW 261 
 
 so wise as Thurlow looked, but he looked even wiser 
 still as the young barrister preceded, and the indif- 
 ference of the opposing counsel began to undergo a 
 decided change. At the conclusion of the argument 
 Lord Thurlow expressed himself as greatly sur- 
 prised and impressed by the argument, and that, 
 evidently, the subject was one which required recon- 
 sideration, and adjourned the case to a later day. 
 John Scott gathered up his brief and as he was pass- 
 ing out, a solicitor of large practice advanced and 
 placing his hand upon his shoulder, remarked: 
 "Young man, your bread and butter is cut for life." 
 And so it was, for not long afterward Lord Thurlow 
 upheld Mr. Scott's argument, and established the 
 doctrine of equitable conversion on a foundation 
 from which it has never been shaken. Of course, a 
 flood of business followed Mr. Scott and it was not 
 many years before he became Solicitor General and 
 "Sir John Scott," followed by his appointment as 
 Attorney-General, and later still his appointment as 
 Lord Chancellor, under the title of Lord Eldon, in 
 which high office he administrated equity for over 
 thirty years, laying its foundation broad and deep, 
 and immortalising his name as the greatest equity 
 judge of all time. 
 
 I also recall an illustration in connection with the 
 subject of the statute of limitations on the point 
 whether the statute was to be regarded as one of 
 limitations or one of repose, and during his interest- 
 ing recital of the history of the case of Olcott v. The 
 Tioga E. R. Co. (20 N. T., 210), he pointed out to us, 
 as a model of profound skill, the brief of Nicholas 
 
262 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Hill publislied as a part of the report of the case, 
 which every lawyer will do well to peruse. 
 
 In his lecture on wills, he illustrated the subject 
 of the probate of lost wills by giving, with gusto, 
 the story of the lost will of Lord St. Leonards, Lord 
 Chancellor of Great Britain who, as Sir Edward 
 Sugden, before his elevation to the woolsack, and as 
 the author of Sugden on Vendors was probably the 
 most celebrated lawyer of his time. Professor 
 Dwight referred to the well known carelessness of 
 lawyers respecting their own affairs, and while care- 
 fully preparing the wills of others they neglect their 
 own. He would tell us how Lord St. Leonards, in 
 his declining years, after having his will carefully 
 prepared, carried it about with him, and would often 
 read it to his daughter and discuss its provisions 
 with her. It was seen in his possession shortly be- 
 fore he died, but upon his death no trace of it could 
 be found. The daughter had become so familiar 
 with it that she was able to repeat its provisions, 
 and the court finally allowed the lost will to be proved 
 by her oral testimony. 
 
 The strange part of it is that Professor Dwight 
 was even more careless than Lord St. Leonards, be- 
 cause it was only shortly before he died that he gave 
 instructions for the preparation of his will and it 
 was brought to him for execution at a time when he 
 was confined to his bed, having evidently only a short 
 time to live. The witnesses to the will were in at- 
 tendance and Professor Dwight attempted to execute 
 it and had written "Theodore W. Dwi" and a part 
 of the letter "g" when he fell back and expired. 
 
A GREAT FATHER-IN-LAW 263 
 
 Of course Ms partly executed will amounted to noth- 
 ing, and this great lawyer, who realised the import- 
 ance of making a testamentary disposition of his 
 property and evidently desired to do so, died in- 
 testate. 
 
 And yet with all his knowledge of the law, I do not 
 think that Professor Dwight could have ever been 
 a successful practitioner. I do not think that he was 
 largely retained in cases by other lawyers, even 
 among those of his own students. There was a 
 theoretical cast to his mind, and an absence of the 
 practical. He knew the law, he could impart the law 
 to others, but I do not think that he was one who 
 could apply it successfully to everyday affairs, al- 
 though he was often consulted. Doubtless his duties 
 to the law school prevented frequent appearances in 
 court, but though there were many intervals in which 
 he might have appeared his name appears but rarely 
 in connection with reported cases. All of his stu- 
 dents, were, I think, greatly gratified when he was 
 given a seat upon the Commission of Appeals, which 
 was constituted to assist the Court of Appeals in its 
 accumulation of cases. He acquitted himself with 
 great credit and his learning was of decided value to 
 that tribunal. I have referred in another place, in 
 considering the reports of cases, to one of his opin- 
 ions, at least, in which he differed from his four asso- 
 ciates, but was sustained by the Supreme Court of 
 the United States. 
 
CHAPTEE Xin 
 
 LEADERS OF THE BAR 
 
 One of the most valuable educational advantages 
 of the young aspirant for forensic honors is the priv- 
 ilege of witnessing the progress of arguments and 
 trials in court. In the earlier days of no law schools 
 and few law books, when men like Lord Mansfield 
 were building up the common law, it was the usually 
 accepted mode of acquiring a legal education to at- 
 tend diligently the sessions of the courts, and listen 
 to the expositions of the law as they fell from the lips 
 of great judges and lawyers. It is related of Lord 
 Mansfield that, in pronouncing judgment, he often 
 remarked that he would enter into an explanation 
 of the principles which governed the decision for the 
 benefit of the students who were in attendance. I 
 heard a prominent leader of the bar say that one of 
 the greatest advantages he ever possessed was at- 
 tending as junior upon his senior, one of the most 
 eminent lawyers that has appeared at our bar, in the 
 trial of cases of all sorts and descriptions, and dur- 
 ing his arguments before appellate tribunals. This 
 is undoubtedly the most effective method of gaining 
 experience as to how trials should be conducted, and 
 it has the additional advantage that the junior is 
 probably largely responsible for the preparation of 
 the case to be tried. Barristers in the English 
 courts go through this experience, serving a long 
 
 264 
 
LEADERS OF THE BAR 265 
 
 apprenticeship as juniors, and by a process of slow 
 growth attain prominence as seniors in the conduct 
 of trials. Few, comparatively, will enjoy the priv- 
 ilege of following a distinguished senior, but this 
 should not prevent the beginner from availing him- 
 self of the opportunity of watching, as a spectator in 
 the court room, the progress of trials and argu- 
 ments. Indeed, it is very important that experience 
 should be acquired by so doing. Knowledge of the 
 methods of conducting trials and of making argu- 
 ments is, of course, essential. There is no better 
 way of employing the spare time, of which young 
 lawyers, not employed in busy offices, generally have 
 an abundance, than using some of it in frequenting 
 the courts. 
 
 The young lawyer may have a mind well stored 
 with legal principles and adjudged cases, and famil- 
 iarity with the code, and be able to prepare pleadings 
 with skill, but unless he has come in touch with the 
 courts, and is familiar with the various steps in the 
 progress of a. trial, and has acquired by observation, 
 at least, some experience as to how to handle a jury 
 and open a case and examine and cross-examine the 
 witnesses and protect the rights of his client by 
 seasonable exceptions, his book-learning will amount 
 to little, and the result will probably be disastrous. 
 By watching the conduct of a case by experienced 
 and able counsel, he will not fail to learn much of 
 very great value. He will observe his method of 
 dealing with a judge in order to create a relation 
 of friendliness, predisposing him to a favourable 
 view of the case ; he will notice his demeanour toward 
 
266 LANDMARKS OF A LAWYER'S LIFETIME 
 
 the jurors, which, will be courteous without being 
 obsequious, and, while avoiding all familiarity, will 
 lead them to feel complimented by a kind of friendly 
 deference ; he will learn much of the proper attitude 
 toward opposing counsel; of methods of calling out 
 favourable testimony from his own witnesess ; of the 
 construction of questions ; of adroitness and skill in 
 breaking the force of the testimony of an adverse 
 witness by well directed cross examination, and, 
 finally, the skillful grouping of facts, and the infer- 
 ences to be drawn from them, in the address to the 
 jury. All this will be a veritable object lesson, and 
 when the process has been watched on numerous oc- 
 casions, the beginner will find himself very much at 
 home in applying to some case of his own the ex- 
 perience which he has thus acquired. 
 
 Nor is it necessary, or even desirable, to observe 
 the course of eminent counsel alone, as it is undoubt- 
 edly true that the most useful lessons of life are 
 learned from the errors of ourselves and of others. 
 This is equally true of what occurs in the court 
 room. He will see how a want of tact can antagonise 
 the judge from the start, so that instead of predis- 
 posing Mm to give what the counsel would like to 
 have, he will be inclined not to give it unless the law 
 requires it. He will also see how some ill-advised 
 remark, or foolish question, will expose the counsel 
 to the Parthian shaft of ridicule, getting the laugh 
 on him, and putting him in an unfavourable light 
 before the jury, and he will note the clumsy way of 
 putting questions to witnesses so as to discourage 
 the giving of favourable testimony, and the pointless 
 
LEADERS OF THE BAR 267 
 
 and prolix cross-examinations wMch. weary the court 
 and jury, and, instead of weakening, probably 
 strengthen the testimony of the witness under cross- 
 examination. In this way he will learn from the 
 skillful trial lawyer what to do, and from the unskill- 
 ful, what not to do, and as he departs from the court 
 room he will have a vivid impression of truths from 
 experience, which it is not possible to acquire from 
 books. One may doubtless derive a great deal of 
 useful information from books upon the conduct of 
 trials and the art of cross examination, but no one 
 can set forth so pointedly and forcibly useful knowl- 
 edge in this direction as can be acquired from actual 
 observation in less time than it takes to read it. 
 
 The art of arguing a cause before an appellate 
 tribunal is well worth careful study. The fine skill 
 with which an experienced lawyer deals with a jaded 
 appellate tribunal before whom printed records and 
 briefs have been piled to such an extent as to dis- 
 courage the most industrious judge, and into whose 
 ears have been poured a flood of argument, is an 
 instructive object lesson. The tact with which he 
 will state his case in the briefest compass to put the 
 Court in possession of the facts, the pithy presenta- 
 tion of his legal propositions, recognising the fact 
 that the Court knows something, and that from his 
 brief it can learn a great deal more, his deference 
 and courtesy, and his ability to maintain his posi- 
 tion in the face of misapprehension and misunder- 
 standing, and indeed put the Court right from his 
 standpoint and depart the master of the situation, 
 will be something which will call forth admiration. 
 
268 LANDMARKS OF A LAWYER'S LIFETIME 
 
 The observer will have, likewise, an abundant oppor- 
 tunity to witness inefficiency, ridiculous errors of 
 judgment, and ability to try the patience of the most 
 long-suffering court, and mingled with it all will be 
 a feeling of sympathy for the crest-fallen counsel 
 who has given an unfavourable impression of what 
 may have been a perfectly good case, leaving the 
 burden of discovering its merits to an industrious 
 and painstaking court. 
 
 In these early days, when spare time afforded me 
 an opportunity of attending the courts as a specta- 
 tor, there was a large number of unusually able 
 court lawyers, sketches of some of whom I have al- 
 ready given, as well as others of less prominence at 
 the time, a number of whom later reached command- 
 ing heights of professional eminence, requiring their 
 inclusion among the great leaders of the bar. Some, 
 alas, disappeared from the scene all too soon, and 
 before their remarkable powers had reached their 
 full fruition. One of these was Francis N. Bangs. 
 He was a product of New York life — the son of a 
 Methodist bishop, but he was not much of a church 
 goer. His devoted mother was very solicitous that 
 he should walk in the ways of a good Methodist. 
 He once told me with considerable glee of the so- 
 licitude expressed by his venerable mother : ' ' Dear 
 Francis, I hope you always go to the Metho- 
 dist church." To which he responded, "Why, my 
 dear mother, you may be very sure that I never go 
 to any other." His reply was somewhat equivocal, 
 but her interpretation of it gave her great comfort. 
 He was an exceedingly interesting personality. His 
 
LEADERS OP THE BAR 269 
 
 countenance in repose was not one to attract, and a 
 casual meeting with Tiim did not create an impres- 
 sion of friendliness, which was entirely contrary to 
 his real nature, nor was his manner altogether pleas- 
 ing. He was apt to be a little careless as to how he 
 treated people, and at times he might have been re- 
 garded as inconsiderate and undoubtedly there were 
 occasions when his impatience and quick temper were 
 somewhat trying, but these outward manifestations 
 were mere surface conditions, and in no sense indi- 
 cated his real nature. He was one of the most warm- 
 hearted and agreeable companions I have ever 
 known. His generosity was unbounded; he had a 
 keen and incisive wit that was constantly scintillat- 
 ing and when anything humorous appealed to him 
 his face would be wreathed in smiles and his enjoy- 
 ment seemed to transform his personality. This 
 sense of humour has, I think, found its manifestation 
 in its descent to his son, John Kendrick Bangs, who 
 for many years has delighted the public with his 
 humorous productions. 
 
 No one who attended it would ever forget a recep- 
 tion given by the Association of the Bar to the Su- 
 preme Court of the United States during Mr. Bangs' 
 presidency of the Association. In the course of the 
 evening when the attendance was at its height, Mr. 
 Bangs made a rather informal address, largely, I 
 think, on the spur of the moment, but which for wit 
 and brilliancy I have never heard equalled. 
 
 He was rather careless in his dress and deport- 
 ment, and the brusqueness and abruptness of his 
 manner created an impression that he was rough 
 
270 LANDMARKS OF A LAWYER'S LIFETIME 
 
 and lacking in polisli, but it only needed personal 
 intercourse with him to remove this impression en- 
 tirely, and to reveal the qualities of a gentleman, 
 making intercourse with him a genuine delight. 
 
 To me nothing has ever been more interesting 
 than certain occasions when both of us happened to 
 be in the city on a summer day, and at his suggestion 
 we would find ourselves in his light road-wagon be- 
 hind a team of fleet steppers, speeding along in the 
 late afternoon through Central Park, and thence up 
 the road leading to Highbridge and beyond, having 
 left the cares of professional life behind us, and given 
 ourselves up to the intimacies of friendship. He 
 used to reveal to me much of his early life, of his 
 struggles at the bar, of his successes and failures, 
 and, at times, of his affictions, of which he had a full 
 share, but generally the humorous element pre- 
 dominated and he was full of witty observations on 
 passing events, and recitals of ludicrous occurrences, 
 which only find their counterpart in the productions 
 of his gifted son. He was one of the worst drivers 
 I have ever known; he was absolutely careless in 
 handling the reins, which generally lay loosely on the 
 horses ' backs and, as they had been trained to speed 
 it, I could not help at times remonstrating with him 
 that his driving was at the risk of our necks. He 
 would quietly respond: "Oh, these horses know 
 their way, and know just what to do," and we would 
 go on as before, and then after dinner at one of the 
 road houses we would return in the early evening 
 as we had come and, notwithstanding the risks to 
 which his driving exposed us, the delight of intimate 
 
LEADERS OF THE BAR 271 
 
 intercourse with this brilliant man induced me to 
 willingly assume them. 
 
 It must be acknowledged that in the court room, 
 he frequently manifested a certain impatience, and 
 sometimes in his relations with his juniors he was 
 apparently lacking in consideration. But these ebul- 
 litions were merely passing clouds, and beneath 
 them was the sunshine of a kind heart and a gener- 
 ous disposition. I do not think that he was always 
 conscious at these times of the effect of his man- 
 ner. I have in mind an occasion when having re- 
 tained him as counsel in a case of importance, he 
 treated me with a good deal of unnecessary severity 
 and indignity. I was very much provoked, and on 
 leaving the court house and coming into City Hall 
 Square, I resented his treatment, and informed him 
 that I could not endure it and that as I had employed 
 him and not he me, I must request that there be no 
 repetition of it. He at once stopped and putting his 
 arm around me said, "Why, Strong, what have I 
 done, I am sure I must have been out of my mind. ' ' 
 I replied, "Why, I don't think that it was you that 
 did anything, it must have been somebody else," and 
 so we laughed it off, and pursued our way to our of- 
 fices. It was like this always ; he was perfectly will- 
 ing to make amends at any time for anything into 
 which the infirmities of his disposition might lead 
 him. I never knew him to possess but one deep- 
 seated animosity. This he felt toward a member 
 of the bar who was opposed to him in important liti- 
 gations and whom he believed was guilty of profes- 
 sional misconduct. He did not care how hard an 
 
272 LANDMARKS OF A LAWYER'S LIFETIME 
 
 opponent fought, if he fought honestly; he fought 
 hard himself; he was a formidable antagonist. 
 Senator John C. Spooner once told me that in the 
 course of his esperience he had met a good many of 
 the New York lawyers in legal proceedings, but that 
 Francis N. Bangs "tied more grass across his path" 
 to trip him up than any other lawyer he ever met. 
 When I first knew Francis N. Bangs he was the 
 senior member of the firm of Bangs, Sedgwick & 
 North, but had not reached a position of eminence. 
 His partner, Mr. Sedgwick, afterward became Chief 
 Judge of the Superior Court of the City of New 
 York, and his other partner Mr. Thomas M. North 
 an excellent lawyer, is still living.^ Mr. Bangs at- 
 tained eminence by slow process of development, and 
 for ten years before his death, between 1876 and 
 1886, was one of the two or three most largely em- 
 ployed counsel at our bar, not so much from the 
 business of his own office as because of retainers 
 from a large and extensive clientage among other 
 lawyers. He was very effective in court either be- 
 fore a jury or before an Appellate tribunal; his 
 rough and ready appearance before a jury, his 
 broad sense of humour, his pithy and pointed way 
 of putting things, made the jurors feel at home with 
 him — he seemed like one of them; and, I think, they 
 liked to give him a verdict if they could. Probably 
 many an almost impossible verdict which he ob- 
 tained was due to the predisposition of the jury to 
 favour him. 
 
 1 Since this was written Mr. North has died, mourned by a large 
 circle of friends. 
 
LEADERS OP THE BAR 273 
 
 The judges liked him; they liked his brevity and 
 his conciseness; they got his point withotit diflS- 
 culty, and, whether he was arguing a question of 
 evidence during the trial of a jury case, or a ques- 
 tion of law in the appellate tribunals, he was sim- 
 plicity and brevity itself. I never knew him to make 
 a long argument. In his arguments he did not often 
 refer to adjudged cases; he appealed to common 
 sense and the ordinary principles of justice. A re- 
 mark he once made to me revealed the quality of his 
 mind. "Strong," said he, "no man is fit to prac- 
 tice law that is not able to practice it without law 
 books. ' ' In the conduct of a trial he was one of the 
 keenest and most quick-witted men I have ever 
 known ; he seemed to see through everything. Noth- 
 ing could obscure his vision. In the examination 
 and cross-examination of witnesses, I have never 
 seen his superior, and his ability to take a witness 
 whose testimony had been damaged and tattered by 
 cross-examination and straighten him out on re- 
 direct examination, stand him up again on his feet 
 and restore his credibility and trustworthiness, was 
 something remarkable, and it called forth the in- 
 voluntary admiration of even his opponents. 
 
 I often saw his methods of work outside of court. 
 Like other successful lawyers he was most indus- 
 trious and painstaking. He spared neither time nor 
 effort. His fault was, I think, his irregularity in his 
 hours of labour; he would turn night into day, and 
 he knew no fatigue when he was engaged upon an 
 important case. His work being done, he would re- 
 lax entirely and then go at it as before. He was 
 
274 LANDMARKS OP A LAWYER'S LIFETIME 
 
 not careful in his ways of living. He liked the good 
 tilings of life ; he was generous in his diet, and this, 
 with his irregular habits of work, brought his life 
 to an end at the comparatively early age of fifty- 
 six, just at a time when he stood upon the heights 
 of professional success. 
 
 In his office he was one of the quickest men in 
 working that I have ever observed; his facility in 
 expressing himself; his keenness and clearness of 
 perception; his logical faculty; his orderly arrange- 
 ment of the subject; his rapid processes of thought, 
 were really marvellous. He had a very rapid and 
 accurate stenographer, George C. Appel, who later 
 graduated from stenography and took his seat upon 
 the bench as judge of the Municipal court in Mt. "Ver- 
 non. He would ring for Appel, who on appearing 
 with his book in one hand and his pencil in the other, 
 was not given an opportunity even to take a seat, 
 but Mr. Bangs would begin rushing off a document, 
 with Appel standing there and writing for dear life. 
 When the document appeared, it was difficult to see 
 how it could be improved. 
 
 Although Mr. Bangs was in receipt of a large in- 
 come, I am sure he was very moderate in his charges. 
 What he would have done in these later days of mon- 
 ster fees, I do not know, but a former partner of his 
 told me that he had occasion to go over some work 
 of Mr. Bangs in a case of reorganisation and that 
 the fee which Mr. Bangs had received was not a flea 
 bite to the fees received at the present time in sim- 
 ilar cases. 
 
 Mr. Bangs gave me the following account of a fee 
 
LEADERS OF THE BAR 275 
 
 wMch. lie once received from Selah Chamberlain, a 
 prominent and wealthy citizen of Cleveland. Mr. 
 Chamberlain had about $100,000 on deposit with a 
 firm of bankers and brokers that had failed, and if 
 their estate had been administered through ordinary 
 channels, he would have been a very large loser, as 
 their debts were great. He retained Mr. Bangs, 
 who by his adroitness succeeded in restoring to Mr. 
 Chamberlain his entire $100,000. The work having 
 been completed, Mr. Bangs sent in a bill to Mr. 
 Chamberlain for $7,500. 
 
 "One day," Mr. Bangs said, "I was seated in my 
 office when Selah Chamberlain was announced. I 
 supposed he had come to find fault with my bill. He 
 was plain in appearance and plaiQ-spoken as well. 
 Almost the first words he uttered were: 'Bangs, 
 what do you mean by charging me this amount?' 
 'Why,' said I, 'isn't it right; what have you got to 
 find fault with?' 'Oh, there is nothing right about 
 it, I find fault with the whole thing. You did the 
 work well but you have charged me improperly, ' said 
 Mr. Chamberlain. I replied, ' there is my bill ; I have 
 done the work ; you admit I have done it well and you 
 will have to pay every cent of it.' 'I will never pay 
 that bill,' replied Mr. Chamberlain, 'it is not right 
 and you must change it, and I want you to take 
 your pen and write an amount which I am will- 
 ing to pay.' 'Well,' I replied, 'if it will satisfy 
 you to have me write an amount that you are 
 willing to pay, I will write it, but I tell you now 
 that I shall not accept less than I have charged.' 
 'All right' said Chamberlain, 'you take the pen and 
 
276 LANDMARKS OF A LAWYER'S LIFETIME 
 
 see what I have in mind looks like.' As I took up 
 the pen, Mr. Chamberlain said to me, 'I want you to 
 cross out that $7,500 and write $15,000.' " 
 
 Mr. Chamberlain did not have a reputation for 
 great generosity and willingness to part with his 
 dollars, and Mr. Bangs almost fell out of his chair, 
 unable to write the $15,000, and so Mr. Chamberlain 
 took the pen, corrected the bill, and drew a check 
 for the amount. Mr. Bangs had then recovered suf- 
 ficiently to be able to receipt it. I may well say of 
 him: 
 
 "Alas! Poor Yoriek, I knew him, Horatio; a fellow of 
 infinite jest, of most excellent fancy." 
 
 It would have been impossible between 1885 
 and 1900 to go much into the courts for the trial of 
 equity cases or into the appellate tribunals without 
 being afforded an opportunity of listening to Mr. 
 James C. Carter. I first saw him in the seventies 
 in the Jumel case when he was associated with 
 Charles O'Conor. He was then about forty years 
 of age. Mr. O'Conor had, I think, unbounded 
 confidence in his strong common-sense, his untiring 
 industry and his mastery of the law. While engaged 
 in this case, Mr. Carter broke down entirely under 
 the severe nervous strain, and for several years 
 subsequently he was entirely out of the profession, 
 seeking to restore the physical energy which he had 
 sacrificed in the discharge of his duty to his clients. 
 It seems to me that none but an extraordinary man 
 would have been able to withdraw himself entirely 
 for several years from the profession and, later not 
 
LEADERS OF THE BAR 277 
 
 only regain the place which he had abandoned, but 
 achieve far greater distinction on the pinnacle of 
 professional eminence. I did not become acquainted 
 with Mr. Carter until after his illness and never en- 
 joyed association with him in professional matters, 
 nor encountered his formidable opposition. 
 
 He had a place of retreat from professional cares 
 and the madding crowd at Good Ground, Long Is- 
 land, where it was his habit, on those stormy days 
 when the ducks are flying, to locate himself with his 
 gun behind a "blind" and enjoy duck shooting. It 
 so happened that my summers were spent a little 
 further along the South shore, and I had in this 
 way, agreeable personal meetings with Mr. Carter. 
 It was my good fortune, however, to have frequent 
 opportunities of witnessing the display of his 
 powers as an advocate in court, and to observe and 
 listen to him at the meetings of the Association of 
 the Bar which he was accustomed to attend with 
 great regularity. 
 
 The impression that Mr. Carter made upon me was 
 of one who, without intellectual brilliancy, gifts of 
 genius or especially attractive social qualities, had, 
 by remarkable force of character, diligent study, un- 
 remitting industry and an assiduous cultivation of 
 his natural powers, won his way to eminence in his 
 profession and to the respect of all who knew him. 
 His frame was ponderous, his movements were slow, 
 but not wanting in energy; his countenance was 
 strong and somewhat heavy; his eyes deep-set and 
 overshadowed by beetling brows, and his mouth 
 concealed by a large mustache, but withal, his ex- 
 
278 LANDMARKS OF A LAWYER'S LIFETIME 
 
 pression was pleasing and gracious, lie was always 
 approachable and unassuming, and his general 
 demeanour was characterised by great dignity and 
 courtesy. 
 
 His manner before the courts was always serious 
 but never aggressive, and everything that he did was 
 characterised by intense earnestness. There was 
 never the slightest humour; there were few light 
 touches ; his blows were like those of a sledge ham- 
 mer. He was always perfectly courteous and con- 
 siderate and, indeed, deferential in addressing the 
 Court, but his arguments did not seem to be cal- 
 culated to persuade but rather to compel. I believe 
 it to be true of him that his style was calculated not 
 to lead, but to drive. He was essentially a philoso- 
 pher. His convictions were the result of long reflec- 
 tion and careful reasoning, and he was generally 
 unwilling to yield them, even in the light of a long 
 line of adjudged cases having the controlling force 
 of precedent. In examining the reported cases in 
 which Mr. Carter was engaged I have sometimes 
 thought that he was almost indifferent to results. 
 He seemed to treat the legal propositions in a case 
 very much as a mathematician would treat a problem 
 in mathematics. He presented his demonstration, 
 and left it with the Court, and he was so unyielding 
 in his convictions that, whether his demonstration, 
 and the result of it, were accepted or rejected was a 
 matter which did not concern him. It has been re- 
 lated, as an instance of this, that after Mr. Carter 
 had argued unsuccessfully the case of Langdon 
 against the Mayor (93 N, Y., 129), a contest between 
 
LEADERS OF THE BAR 279 
 
 the city and the owners of riparian rights along 
 West Street on the North Eiver, notwithstanding 
 the adverse decision by the Court of Appeals, he 
 still maintained the correctness of his views and rec- 
 ommended the city to continue the contest as against 
 other owners, although, in view of the decision of the 
 Court of Appeals, the contest was hopeless. He was 
 so firmly convinced of the correctness of the posi- 
 tion which he had taken, that he was unwilling to 
 bow to a decision of the court of last resort as a 
 controlling authority. 
 
 He was absolutely independent and fearless, and 
 no amount of judge-made law would disturb his con- 
 fidence in what he believed to be the eternal decrees 
 of justice. His views were expressed with an ear- 
 nestness and power which were very impressive. His 
 voice was rich and full, and although he was rarely 
 animated, his gestures were free and abundant. He 
 had all the marks of the school of Webster. Mr. 
 Carter was not only a great philosopher but an ac- 
 complished orator, and I have often heard the 
 judges speak of the intellectual treat which his 
 arguments afforded, even though they might not 
 command assent. 
 
 A few years before his death, Mr. Carter had re- 
 tired almost entirely from practice but, up to tliat 
 time, for ten or fifteen years, he was extensively 
 employed as counsel in cases of the greatest magni- 
 tude, such as the Income Tax cases and the Behring 
 Sea controversy, and his opinion was constantly 
 sought by the largest financial interests. I doubt 
 whether any lawyer at our bar has ever been em- 
 
280 LANDMARKS OF A LAWYER'S LIFETIME 
 
 ployed more largely in cases of national impor- 
 tance than was Mr. Carter. 
 
 I am under the impression that Mr. Carter did not 
 like jury cases, and I do not believe that he could 
 ever have had much success before juries. He 
 lacked the arts of a jury advocate. A jury would 
 admire him and respect him, and listen as he at- 
 tempted to compel them to adopt his views, but op- 
 ponents of very moderate ability, entirely unequal 
 to him would, by good humour and adroit presenta- 
 tion of the facts, walk away with a verdict which 
 really ought not to have been rendered. 
 
 Mr. Carter was a tremendous influence for good 
 in his profession. He never disregarded the call of 
 public duty in this direction. He had the loftiest 
 standards of professional character and did all he 
 could to impress those standards on his profession. 
 I have no doubt that this led him to sacrifice much 
 of his time, and a great deal of his convenience, to 
 attend the ordinary meetings of the Bar Association, 
 which are so rarely attended by most of the leading 
 members of the bar, but he would be in his place. 
 He was five times honoured with its presidency, 
 which has only occurred in one other instance, that 
 of Mr. Evarts. His first terms were in 1884 and 
 1885 and the later ones were in 1897 to 1899. He 
 was there to guide and counsel, and he was listened 
 to with universal respect and confidence, and his 
 views always prevailed. He was to be found at the 
 front in every useful movement to elevate the stand- 
 ards of professional conduct and to lead the way to 
 condemn and to reform what was unworthy in the 
 
LEADERS OP THE BAR 281 
 
 judiciary. In these matters he took a prominent and 
 influential part. 
 
 His characteristics as a philosopher were well dis- 
 played in his lectures at Harvard University on the 
 philosophy of the law, as well as in his argument 
 on behalf of the United States before the Behring 
 Sea Commission. 
 
 It is well known that President Cleveland se- 
 riously entertained the idea of appointing Mr. Carter 
 Chief Justice of the United States. The one serious 
 obstacle to his selection was the doubt whether his 
 physical condition was such as to permit him to dis- 
 charge the duties of the position. Uncertainty as to 
 this finally led President Cleveland to select Chief 
 Justice FuUer, although subsequent events abun- 
 dantly proved that Mr. Carter would have been en- 
 tirely equal to the duties of the office. His intellec- 
 tual qualities and training were such as to equip him 
 admirably for the Chief Justiceship and he would, I 
 believe, have had a distinguished career in that ex- 
 alted position. 
 
 There are fortunately two very excellent portraits 
 of Mr. Carter, one of which hangs in the reading 
 room of the Association of the Bar, and the other 
 by Sargent in the Harvard Club. 
 
 Singularly enough, the poetic and prosaic fre- 
 quently find a union in men of the law. There 
 surely is nothing in the law itself to call out poetic 
 feeling, and possibly the prosaic quality of the law 
 leads its practitioners to seek relief from its prosi- 
 ness in the far distant realms of poesy. However 
 
282 LANDMARKS OF A LAWYER'S LIFETIME 
 
 this may be, it is quite true that instances are not 
 wanting of eminent lawyers cultivating the acquaint- 
 ance of the muses. One distinguished example, at 
 least, may be mentioned, that of Mr. Justice Story 
 of the Supreme Court of the United States, who fre- 
 quently gave utterance to poetic fancy, and in his 
 early days, if I mistake not, offered a volume of 
 poems to the public. 
 
 Poetry and the law also found a most attractive 
 combination in William Allen Butler. His famous 
 poem "Nothing to Wear" has long since become a 
 classic, and his poem "Two Millions," read before 
 the Phi Beta Kappa Society at Yale, which dealt 
 with the subject of social immoralities attendant 
 on the acquisition of wealth, is another note-worthy 
 example of his poetic gift. Most of his poetry how- 
 ever, was of a more private and personal character, 
 produced mainly for the entertainment of his chil- 
 dren and friends. He had a beautiful literary gift 
 and his prose productions, to my mind, far out-weigh 
 in merit and in importance the best of his poetry. 
 They struck at various evils in public and social 
 life through satire. The over-reaching spirit of 
 buyer and seller was portrayed in his story of South 
 Street, entitled "General Average." The spirit of 
 gambling, with its illegality and evil consequences, 
 was illustrated in a most entertaining fashion in his 
 little book "Mrs. Limber's EafiBe," and the perplex- 
 ities and embarrassments growing out of the ser- 
 vant question were delightfully displayed in his 
 " Domesticus, " while his essay on "Lawyer and 
 Client" brought to the attention of the legal pro- 
 
LEADERS OP TEfE BAR 283 
 
 fession their duties and obligations growing out of 
 professional employment. 
 
 Mr. Butler was undoubtedly a very busy lawyer, 
 and my curiosity to know bow be could have found 
 time amid .tbe demands of bis practice for indulg- 
 ing bis literary gift, led me to enquire of Mm in 
 one of our meetings bow be managed to write so 
 mucb wben be was practicing law so diligently. He 
 replied tbat almost everytbing was composed wben 
 be was attending in court, waiting for bis cases to 
 be beard. Almost all bis writing was before tbe 
 days of communication by telepbone between tbe 
 court bouse and tbe lawyers' offices, and be was 
 therefore obliged, like all otber lawyers at tbat time, 
 to spend many bours in tbe court room awaiting bis 
 turn to be beard. Tbis time, ordinarily wasted, be 
 employed to advantage in producing tbe poetry and 
 prose wbicb bave proved so attractive to tbe public 
 at large, and bave given Mm a wortby place among 
 tbe literary men of Ms day. 
 
 Mr. Butler represented to my mind, more tban any 
 otber man wbo bas appeared at our bar, a combina- 
 tion of wit, sound sense, and bigb attainment as a 
 lawyer, witb a remarkable development of literary 
 gifts and a broad culture from extensive reading. 
 TMs, witb Ms innate refinement, bis polisbed manner 
 and Ms lofty character, made bim a notable example 
 of tbe finest type of tbe best product of New York 
 life. He was a born and bred New Yorker, tbe son 
 of a distinguished father, Benjamin F. Butler, a 
 lawyer of great eminence wbo was Attorney-General 
 in Andrew Jackson's cabinet. His associations 
 
284 LANDMARKS OF A LAWYER'S LIFETIME 
 
 were with the best families of New York and he had 
 every advantage that wealth and position could be- 
 stow. Those who desire to have an admirable pic- 
 ture of New York days up to the time of the Civil 
 War, should read Mr. Butler's interesting produc- 
 tion published after his death, entitled "Retrospect 
 of the Memories of Forty Years." 
 
 At the time that he began practice, his father had 
 retired from public life and was one of the most 
 celebrated practitioners at our bar. Too often these 
 accessories of wealth, high social position and an in- 
 fluential father, instead of being advantages, have 
 proved the contrary, but it was not so in his case. 
 If the possession of these things removed a certain 
 stimulus to exertion, there was that inherent in his 
 own character which furnished an incentive to ear- 
 nest endeavour. While he had an easy pathway 
 marked out in his father's office, he found in it only 
 an opportunity to develop his powers and for the 
 pursuit of an honourable career. 
 
 In the early years of his practice he became asso- 
 ciated with Hiram Barney, Collector of the Port 
 of New York under President Lincoln and one 
 of the most proficient lawyers of his time in attract- 
 ing an important clientage. In my early days at 
 the bar, there were few busier offices than that of 
 Barney, Butler & Parsons, and Mr. Butler was con- 
 stantly in court trying cases or arguing appeals. 
 The business in which he was engaged wafe largely 
 commercial. His cases generally were not of public 
 importance, and his practice was not of that con- 
 spicuous character in which other distinguished law- 
 
LEADERS OP THE BAR 285 
 
 yers were engaged, but he was, nevertheless, promi- 
 nently known as a man of high character founded on 
 religious principle, and of marked legal attainments 
 entitling him to recognition as one of the distin- 
 guished and successful members of the bar. It was 
 undoubtedly due to this that he was elected president 
 of the Association of the Bar. 
 
 For several years I came in contact with Mr. But- 
 ler frequently, in connection with an important liti- 
 gation. Feeling undoubtedly ran high between our 
 respective clients and, at times, between certain of 
 the counsel engaged, but it was never so with Mr. 
 Butler. He was always the gentleman. He pro- 
 voked no controversies, he made allowances for the 
 failings of others, he sought to allay bitterness of 
 feeling and he was remarkably courteous, consider- 
 ate and magnanimous. Taking him altogether with 
 his fine literary and legal attainments, his symmet- 
 rical and well developed character and his beneficial 
 example and influence, I do not think that William 
 Allen Butler had a superior at the bar. 
 
 One of the most interesting personalities, justly 
 entitled to rank among the distinguished advocates, 
 was William A. Beach, who, in his later years, relin- 
 quished a valuable practice in Troy, New York, to 
 enter the arena of the New York City bar. His posi- 
 tion was somewhat peculiar and quite different from 
 that of the men already mentioned. He was en- 
 gaged in all kinds of spectacular cases, many of them 
 of a character which would not attract the best type 
 of lawyers. They were sensational, and involved 
 
286 LANDMARKS OF A LAWYER'S LIFETIME 
 
 issues wMcli appeal to a not altogether exalted pub- 
 lic taste. One of these was the Beecher case in 
 which he appeared for Theodore Tilton in his ac- 
 tion against Henry Ward Beecher. Associated with 
 him was Judge William FuUerton, of considerable 
 prominence at the bar and noted as a brilliant cross- 
 examiner, but whose arts as such were entirely lost 
 upon Mr. Beecher. When seemingly involved in- 
 extricably and asked by Judge FuUerton: "Now, 
 Mr. Beecher, in view of the facts which you have ad- 
 mitted, what explanation can you make?" — Mr. 
 Beecher, in his inimitably frank and altogether pre- 
 possessing way, replied : "Why, of course, I cannot 
 explain these facts otherwise than that I was one 
 of the most foolish men that ever lived, but entirely 
 innocent of any wrong-doing. ' ' Of course the cross- 
 examination was fruitless. 
 
 Mr. Beach bore the brunt of the long-winded 
 trial, which occupied public attention for about six 
 months, and his conduct of the case, and especially 
 his summing-up to the jury, aroused great admira- 
 tion for his tact, skill, and commanding ability in con- 
 ducting, against an array of famous lawyers, the un- 
 popular side of that remarkable litigation. 
 
 He seemed to be largely employed in cases of that 
 character, such as the Brinkley divorce case and the 
 case of Gonzales vs. Del Valle, in which his able and 
 witty adversary, in warning the jury against being 
 misled by his arts and eloquence, paid him the doubt- 
 ful compliment of being "in the whole realm of 
 sexual litigation, without a peer and without a 
 rival." He was certainly at home in this class of 
 
LBADEKS OP THE BAR 287 
 
 cases. When the impeachment proceedings against 
 Judge Barnard were brought to trial, Mr. Beach 
 acted as his defender. He also defended Edward S. 
 Stokes for slaying James Fisk. Commodore Van- 
 derbilt had a high opinion of Mr. Beach and employed 
 him largely, one celebrated instance being in the 
 litigation between Commodore Vanderbilt and Fisk 
 and Gould, and he was also one of the counsel in 
 sustaining Commodore Vanderbilt 's will. 
 
 Mr. Beach had an impressive personality. He 
 had one of the coldest, most impassive and sphinx- 
 like countenances that I ever beheld. I never saw 
 his face lighten up with animation. With his cold 
 gray eye, he looked upon one with a grave expres- 
 sion that rarely changed. He was solemnity and 
 dignity personified. He was a fine orator. His 
 periods were slow and measured, his diction was 
 choice and expressive, creating the impression of a 
 strong and- forceful character. His gesticulation 
 was deliberate and graceful, and his manner was 
 such that, notwithstanding his dignity and solem- 
 nity, there was a magnetic quality which met with 
 a sympathetic response from his audience. His 
 bearing and dress were impressive. There was 
 a gravity about him, a kind of noli me tangere 
 characteristic that forbade anything like familiarity. 
 His movements and walk were deliberate and slow, 
 but his step was characterised by firmness and en- 
 ergy. He invariably wore a double-breasted coat 
 tightly buttoned, and there was a sort of military 
 erectness and precision about him which attracted 
 attention and rendered him conspicuous. 
 
288 LANDMARKS OF A LAWYER'S LIFETIME 
 
 I would not be disposed to class Mr. Beacli among 
 the profound lawyers, nor among those of the high- 
 est type. He was learned and able and was a formi- 
 dable antagonist, but, in my opinion, he was not en- 
 titled to rank among deep students of the law, or 
 profound reasoners on legal subjects. 
 
 Probably the most notable achievement of Mr. 
 Beach was before a mihtary coramission in Wash- 
 ington when he defended Col. North and several 
 others against the charge of tampering with soldiers' 
 votes. This was essentially a military tribunal. As 
 a civilian appealing to a body of military men on 
 grounds of civil rights, seeking to convince a body of 
 soldiers in a time of war and public excitement that, 
 as a military tribunal, they had no jurisdiction to 
 try a charge ordinarily cognisable by the common 
 law courts, he undertook a task which it would seem 
 to have been impossible to carry out successfully. 
 But this he accomplished. With his comprehensive 
 grasp of the subject, and his powerful presentation 
 of it; his courageous and fearless maintenance of 
 civil rights against usurpations of military power, 
 he succeeded in inducing this commission of soldiers 
 to yield their military power to the arm of the com- 
 mon law. That argument will, I believe, stand forth 
 always as a mighty bulwark against military pre- 
 tensions in times of war respecting charges cog- 
 nisable by the common law. This argument may be 
 found in Mr. Snyder's compilation entitled, "Great 
 Speeches by Great Lawyers." 
 
 Probably one of the busiest lawyers in New York 
 
LEADERS OF THE BAR 289 
 
 was Aaron J. Vanderpoel. He was not a giant of 
 the bar, but he was one of those plain practical, well- 
 read practitioners, of sound mental processes and 
 keen discrimination, with unusual ability to seize 
 upon the vital point of a controversy. His cases 
 were not celebrated and conspicuous, but of the more 
 important of the general run of everyday litigation 
 on almost every conceivable subject. He seemed at 
 home in all. It is said, and I believe correctly, that 
 for thirty years he was engaged in more cases be- 
 fore the courts than any member of the bar. He re- 
 ceived an excellent training as a law student under 
 William Curtis Noyes, who had been a student and 
 a partner of my grandfather, Wheeler Barnes. The 
 early years of his practice were passed in Kinder- 
 hook, until he became a member of the firm of 
 Brown, Hall & Vanderpoel, which had a large busi- 
 ness as counsel to the sheriff and the various munici- 
 pal oflScials and boards. One of his partners was A. 
 Oakey Hall, for a considerable time District Attor- 
 ney, and later the Tweed Mayor of New York, who 
 finally was indicted and brought to trial, but suc- 
 ceeded in escaping conviction. Throughout the try- 
 ing experiences to which Mr. Hall was subjected, Mr. 
 Vanderpoel was a true and loyal friend. 
 
 In one of my early cases I had Mr. Vanderpoel as 
 an opponent. It was a simple action for a real 
 estate broker's commissions, and the jury very 
 kindly gave me a verdict. The case was appealed to 
 the General Term where the judgment was affirmed, 
 and then to the Court of Appeals. I mention the cir- 
 cumstance as an illustration of how an experienced 
 
290 LANDMARKS OF A LAWYER'S LIFETIME 
 
 lawyer may, in the press of Ms professional employ- 
 ment, lose sigh-t of the vital point of a controversy. 
 An inexperienced practitioner like myself might 
 possibly be excused for failing to notice a nice but 
 not very obvious point which, to a lawyer of long 
 experience, would be apparent, as it was to me when 
 brought to my attention. I was at a loss to under- 
 stand how it had escaped me, to say nothing of Mr. 
 Vanderpoel with his superior knowledge and experi- 
 ence. At all events, it did escape us both until it 
 was too late. Mr. Vanderpoel and I met in Albany 
 to argue the case before the Court of Appeals. Our 
 case was not called the first day and we were obliged 
 to remain over night. Evidently Mr. Vanderpoel 
 had occupied his time in giving the case more care- 
 ful study than it had ever received from him, and 
 what was my surprise the following day to have him 
 present to me printed copies of his brief developing 
 this vital point, which, if it had been raised upon the 
 trial, would have been fatal, unless I could have met 
 it by proving facts disposing of it. He was very glee- 
 ful over his new found point — admitting he had not 
 thought of it until the preceding afternoon, and in 
 the interval had prepared and had printed a new 
 brief. I saw at once that if the Court should enter- 
 tain the point upon the record as presented, it was 
 all up with me. But notwithstanding an able and 
 persuasive argument from Mr. Vanderpoel, well cal- 
 culated to induce the Court to consider the point, I 
 took refuge in the position that the record failed to 
 show that the point had been raised at the trial or at 
 the General Term, and that there was no objection or 
 
LEADERS OF THE BAR 291 
 
 exception in the case intended to raise it, and that it 
 could not be raised for the first time in the Court of 
 Appeals. The Court, fortunately for me, agreed 
 with me, and thus the strongest point which could 
 have been presented against us, having passed un- 
 noticed until it was too late, was of no avail. This 
 was the case of Duryee against Lester (75 N. T., 
 442). 
 
 In the catalogue of lawyers it is difficult to draw 
 the line where the distinguished members of the bar 
 end, for memory sums up many well remembered 
 figures who occupied a large place and left their im- 
 press upon the bar. 
 
 There was Mr. Stephen P. Nash, substantial and 
 solid, learned in the law, plain and unostentatious, 
 typical of all that was high toned and honourable, 
 and who for many years was one of the most largely 
 retained counsellors. He was not at his best before 
 a jury, but in an equity case or an argument before 
 an appellate tribunal he displayed unusual ability 
 and earned well-deserved success. 
 
 There was the brilliant and witty Frederick E. 
 Coudert, with all the vivacity, courtesy and alertness 
 of the genuine Frenchman, combined, however, with 
 the strong and forceful qualities of the Anglo-Saxon. 
 There was no more attractive personality at the bar 
 than he. His arguments, as well as his informal 
 addresses, were saturated with wit and expressive 
 phrases, and to listen to him was to be charmed. 
 The distinction which he achieved was not among the 
 ranks of the counsel largely employed by other law- 
 
292 LANDMAEKS OP A LAWYER'S LIFETIME 
 
 yers, but in a vast volume of business of an inter- 
 national character, wMch grew out of Ms foreign and 
 particularly his French connections, and which en- 
 abled him to render conspicuous service before the 
 Behring Sea Commission. The eminence he se- 
 cured was of slow growth, earned by diligent and 
 painstaking effort and by the cultivation of those 
 qualities which characterise what is the highest and 
 best at the bar. My first opportunity of observing 
 Mr. Coudert was in a case in which my father had 
 been appointed referee to hear and determine, and 
 in which Mr. Coudert was engaged as counsel. The 
 prominent feature of Mr. Coudert, which has re- 
 mained in my mind ever since, confirmed in my later 
 intercourse with him, was his unfailing courtesy, in 
 which he made no discrimination between individ- 
 uals, and was as punctilious in politeness toward the 
 humble amanuensis as to the learned referee. He 
 was indeed the able lawyer and polished gentleman. 
 
 One of the strongest and most rugged men of emi- 
 nence at the bar was Wheeler H. Peckham. He was 
 a son of Judge Eufus W. Peckham of the Court of 
 Appeals and a brother of Mr. Justice Eufus W. 
 Peckham also of the Court of Appeals and subse- 
 quently of the Supreme Court of the United States. 
 He rendered conspicuous service early in his career 
 in connection with the litigations instituted on behalf 
 of the city against "William M. Tweed, and he could 
 always be found at the forefront of every movement 
 to reform public abuses and to elevate professional 
 life. His courage was undaunted and his energy 
 
LEADERS OP THE BAR 293 
 
 was tireless. He was one of the most loyal and true- 
 hearted men whom I have ever known. He came 
 very near occupying a seat on the bench of the Su- 
 preme Court of the United States, having been nomi- 
 nated for that high office by President Cleveland to 
 fill the vacancy occasioned by the death of Mr. Jus- 
 tice Blatchford. But this well-deserved recognition 
 by Mr. Cleveland was not to be consummated by 
 confirmation by the United States Senate. He had 
 fought many battles in public life. He had aroused 
 many antagonisms among the baser element of the 
 Democratic party. His nomination met with oppo- 
 sition from David B. Hill, then a Senator from New 
 York, and it could not be confirmed. That which he 
 should have received was bestowed upon his brother, 
 Rufus W. Peckham, to whom Senator Hill had no 
 objection. 
 
 There are doubtless other lawyers of distinction 
 without whom any list of distinguished members of 
 the bar would be incomplete. Some of them could 
 be found among the patent and admiralty lawyers, 
 but to these I do not refer, there being wanting that 
 element of personal intercourse, more or less inti- 
 mate, which alone entitles me to speak. 
 
CHAPTER XIV 
 
 WILLIAM F. HOWE 
 
 Eecollections of the bar of New York City within 
 the past forty years would be entirely incomplete 
 without remembering William F. Howe. No one 
 travelling down Centre Street toward the City Hall 
 could fail to observe at the southwest comer of 
 Centre and Leonard Streets, just across the street 
 from the Tombs, the conspicuous sign bearing in 
 bold letters the name of Howe & Hummel. It was 
 like a big mercantile sign, and there was not only 
 that, but the name was repeated on windows, and the 
 individual name "William F. Howe" also stood 
 forth prominently. It was one of the features of the 
 locality, and one of the curiosities of the bar. The 
 offices of the firm were in marked contrast with other 
 law offices, being on the ground floor, and entered 
 directly from the street. If one desires an excellent 
 description of these offices in the heyday of the 
 flourishing practice of that firm, it will be found in 
 the interesting novel of Mr. Arthur C. Train, en- 
 titled "Confessions of Artemas Quibble." Situated 
 in that locality with the attention that the signs at- 
 tracted, it was evident that the firm of Howe & Hum- 
 mel catered to the criminal classes and offered to 
 them the aegis of its protection. It was, undoubtedly, 
 the most conspicuous and, I may add, the most noted, 
 firm of lawyers at the criminal bar. Howe & Hum- 
 
 294 
 
WILLIAM P. HOWE 295 
 
 mel were individually the antipodes of each other. 
 Howe was of immense proportions, although of mod- 
 erate height, while Hummel was correspondingly 
 diminutive, and very short in stature. They pre- 
 sented a striking contrast, and when they appeared 
 ia each other's company their disparity in appear- 
 ance was so marked as to attract universal attention. 
 Hummel had entered Mr. Howe's service as a clerk. 
 Alert and acute, he made himself invaluable to Mr. 
 Howe, and became his partner. In addition to Mr. 
 Howe's large criminal practice they had a very 
 extensive civil practice, which, however, partook iu 
 many of its features of the criminal element, being 
 cases of divorce, assault and battery, slander and 
 torts. The name of the firm was constantly before 
 the public in sensational oases, and consequently at- 
 tained great prominence, and yet I think it may be 
 fairly said that the firm would not have been classed. 
 among those of the highest character and standing. 
 So far as Mr. Howe was concerned, there was never 
 attached to him any disrepute, although undoubt- 
 edly, dealing as he did with his special line of cases, 
 he was accustomed to take advantage of every tech- 
 nicality, and may, at times, have been thought to 
 run close to the border line, beyond which a not very 
 high standard of professional ethics would permit 
 him to go. 
 
 Judge Van Brunt once related of him an incident 
 which illustrated this phase of Mr. Howe's charac- 
 ter. "Mr. Howe, "he said, * ' was the soul of honour, 
 if you put him upon his honour ; but the moment you 
 lost sight of this element and treated him upon the 
 
296 LANDMARKS OF A LAWYER'S LIFETIME 
 
 basis of a keen-witted lawyer, at liberty to take ad- 
 vantage of every technicality wMcb the law afforded, 
 he was quite a different individual. He appeared 
 before me frequently and I always put him upon his 
 honour, and I never knew him to deceive me. On 
 one occasion Mr. Howe made a statement, the ver- 
 acity of which was questioned by his adversary. 
 Mr. Howe asserted that his statement was perfectly 
 true and added that if I doubted it he would put the 
 statement in the form of an affidavit. I replied, ' Oh, 
 no, Mr. Howe, you need not do that. I would rather 
 have your word of honour than your affidavit,' and 
 knowing him as I did, my reason for making this 
 reply was that in his affidavit he would feel at liberty 
 to take every sort of advantage, and therefore it 
 would not be so reliable as his statement on honour. ' ' 
 Upon the basis of a practitioner, he would feel at 
 liberty to take advantages which as a man of honour 
 he would not use. His reputation for never deceiv- 
 ing the court, whatever he might do with his adver- 
 sary in ordinary legal procedure, was well deserved. 
 Mr. Howe's birthplace was near Boston, and he 
 was the son of a minister, the Eev. Samuel Howe. 
 But he evidently inherited to a small extent the re- 
 ligious proclivities of his father. His early life was 
 spent, and his education secured in England, and his 
 first choice was the medical profession. For some 
 reason, which I am unable to explain, it was impos- 
 sible to induce him to dwell on the experiences of 
 his early years. It is probable, however, that he 
 never engaged in practice as a physician, but his 
 medical training served him in good stead in subse- 
 
WILLIAM F. HOWE 297 
 
 quent years in cases which involved medical knowl- 
 edge, and the cross-examination of medical experts, 
 in which he was most successful. Upon his return 
 to the land of his birth he studied law, and when 
 about thirty years of age, was admitted to practice. 
 He always claimed that he should have been a tra- 
 gedian. He had dramatic fire and intensity. He was 
 a great lover of Shakespeare, and was wont to say 
 that he had read him certainly a thousand times, and 
 he could repeat from memory page after page of his 
 plays. He was also a student of the Bible and culti- 
 vated it not only for the stores of wisdom which it 
 furnished, but on account of its pure and beautiful 
 diction. He was a man of culture, and had artistic 
 tastes which found expression in surrounding him- 
 self with works of art. While he was a bon vivant, 
 and frequented the race track considerably, yet he 
 was a man of strong domestic ties. His habits were 
 not open to criticism, and his home life was unex- 
 ceptionable. 
 
 His appearance was most striking, and in the court 
 room he was the observed of all observers. He was 
 about five feet seven inches in height, and weighed 
 between 250 and 300 pounds. He had a round, florid 
 countenance, indicative of high living, with big blue 
 eyes, a broad, strong jaw, and a firm and determined 
 expression of countenance which marked him as a 
 dominant and forceful personality. His abundant 
 hair, streaked with grey, was always carefully 
 brushed, and his general appearance was that of a 
 man well-groomed. He was not intellectual in his 
 appearance, but rather earthy and sensual, although 
 
298 LANDMARKS OF A LAWYER'S LIFETIME 
 
 lie could not have pursued Ms practice as lie did, 
 industriously and successfully, if he had to any con- 
 siderable extent been such in fact. 
 
 His dress was of the most unprofessional and 
 gaudy character. His large, rotund form was clad 
 in garments of the loudest description. His aim in 
 dress, apparently, was to be novel and conspicuous. 
 In the course of a trial his change of garments was a 
 marked feature. Every day witnessed a new and 
 striking effect. His personality was always largely 
 in evidence, and the change of garments was for the 
 purpose, as it seemed, of attracting notice and arous- 
 ing interest. On the street he wore a cap very much 
 resembling the yachting caps of the present day, and 
 in cold weather he was clad in a heavy seal-skin 
 lined overcoat, which in the court room was loosely 
 thrown back displaying an immense front. He was 
 especially fond of wearing big checked trousers, a 
 figured vest of velvet, or similar material, a highly 
 coloured and variegated tie, an enormous watch, to 
 which there was attached a heavy gold chain of large 
 links, and in his shirt front was a diamond pin of 
 considerable size, while his hands were covered with 
 diamond rings. He was literally a show to behold. 
 It is related of him that while travelling up town in 
 a street car after a hard day's work he fell into a 
 doze, and two light-fingered gentry being aboard, 
 one of them took advantage of the favourable oppor- 
 tunity to relieve Mr. Howe of the diamond ornament 
 in his shirt bosom. The second pickpocket, seeing 
 what had been done but, of course, unable to remon- 
 strate at the time without detection, said to his com- 
 
WILLIAM F. HOWE 299 
 
 panion when he could safely do so : " You fool, why- 
 did you do that, don't you know that that is William 
 F. Howe and that to-morrow morning you will be 
 calling on him to defend you?" Taking the orna- 
 ment from him he waited until Mr. Howe alighted, 
 and approaching him said: "There was an ignor- 
 ant young man aboard that car who took this from 
 you while you were sleeping, and he has requested 
 me to hand it back to you. ' ' No one has ever been 
 seen at the bar like Mr. Howe. In his accoutrements 
 he looked like a prosperous saloon-keeper or a suc- 
 cessful gambler, but he was neither of these, and was, 
 in fact, the able, devoted, and successful advocate. 
 
 His devotion to his clients was intense. He was 
 completely absorbed in the cases in which he was 
 engaged. He spared no pains. He could not have 
 displayed greater earnestness or zeal if his own life 
 had depended on the result. His cases were with 
 him an obsession. They seemed to be never absent 
 from his mind, and during the night hours with his 
 sub-conscious miud at work, he would awake with 
 some valuable thought which no amount of fatigue 
 ever induced him to neglect. He would rise from 
 his bed and make a note of it. This experience 
 would sometimes be repeated frequently during the 
 night, and the following day he would take from 
 his pocket these notes, and with his assistant arrange 
 them for use. 
 
 Before the day of allowances of $500 to coimsel for 
 defending homicide cases, and a copy of the steno- 
 grapher's notes of the testimony for use on appeal, 
 there were a number of instances in which Mr. Howe 
 
300 LANDMARKS OF A LAWYER'S LIFETIME 
 
 not only contributed Ms services in defense of 
 a person whom he believed to be innocent, but, where 
 an appeal was necessary, he also paid from his own 
 pocket the bill of the stenographer for furnishing a 
 transcript of the testimony. He had a powerful and 
 resonant voice, a remarkably vivid imagination, and 
 was picturesque and powerful in a narration of facts. 
 His imagination enabled him to introduce probable 
 facts and circumstances, clothing the case in a garb 
 so attractive that it exerted a tremendous influence 
 upon the average juror. In addition to this, he was 
 an adept in all the by-play of a trial, and his con- 
 cluding address to the jury was characterised by 
 dramatic power and tragic interest, which, with his 
 natural aptitude for acting a part, was calculated to 
 create a powerful impression. In one case, in par- 
 ticular, in which he was defending an individual 
 charged with a serious crime against a girl, he was so 
 overwrought by his own feelings that he fell upon 
 his knees before the jury, and addressed them in 
 terms of surpassing power, resulting in the acquittal 
 of the prisoner. His influence with a jury was very 
 great, and many a juror who, as a spectator, had wit- 
 nessed the progress of a trial wondering how the 
 jury could be so influenced, found himself later on 
 in the jury bos, completely under his sway. While 
 he was naturally hot-tempered and impetuous, yet 
 in the trial of a case he was always polite and affable, 
 which also characterised him in his relations with 
 his office-associates and employees, as well as in his 
 intercourse with members of the bar, and, added to 
 this, he was shrewd and cunning, and on the alert to 
 
WILLIAM F. HOWE 301 
 
 take advantage of everything that transpired to his 
 advantage. 
 
 In his early days, soon after the beginning of the 
 Civil War, he was largely employed in cases of 
 habeas corpus for the discharge from the army of 
 individuals who had enlisted while under the influ- 
 ence of liquor, and this large number of cases earned 
 for him the title "Habeas Corpus Howe." His abil- 
 ity, earnestness and zeal resulted in his employment 
 in criminal matters of large interest, until at the 
 conclusion of his career he was able to say that he 
 had defended over a thousand murder cases, and his 
 chief assistant for over twenty-five years informed 
 me that he had been engaged with him in over six 
 hundred of them. Judge Noah Davis characterised 
 him as the Nestor of the bar, taking rank with the 
 greatest criminal lawyers of our time, and as em- 
 ployed in more cases than all of them together. 
 
 It is also related that Recorder Smythe, who pre- 
 sided so long in one of our criminal courts, spoke of 
 him as the foremost and most successful defender of 
 criminals in his generation. It was said of him at 
 the time of his death that he found flaws in a score 
 of carefully drawn laws, battering down enactments 
 which seemed impregnable, and stood side by side 
 with James T. Brady, Daniel Dougherty and John 
 Graham at the head of the criminal bar. That he 
 was learned and accomplished in the criminal law is 
 evident from the fact that in 1882 with Daniel G-. 
 Rollins, assistant district attorney, and later, district 
 attorney, deeply versed in the criminal law, they 
 compiled a codification of the laws relating to crimes. 
 
302 LANDMARKS OF A LAWYER'S LIFETIME 
 
 which was adopted by the legislature and embodied 
 in the Penal Code. 
 
 If the reminiscences of William F. Howe had been 
 written, a thrilling record would have been made of 
 his successful defences in murder cases alone. We 
 have an illustration of varied practice and remark- 
 able cases in the interesting volumes produced by 
 Montagu Williams, Henry Hawkins (Lord Bramp- 
 ton) and Sergeant BaUantyne, leaders of the crim- 
 inal bar in England, but none of them probably em- 
 brace such an extensive experience in homicide cases 
 as that of William F. Howe. There was published, 
 when he was at the height of his career, a pamphlet 
 containing a list of the prominent cases in which he 
 had been engaged, in number far exceeding that of 
 which any other member of the criminal bar could 
 boast. His retainer in this vast number of cases, I am 
 assured by his assistant of over twenty-five years, 
 was in no way due to any other influence except that 
 which his commanding ability exerted. He had no 
 occasion to seek business, for it sought him. His 
 office was thronged, and it was not rare that a dozen 
 carriages of the wealthier class were gathered in the 
 street in front of his office, whose owners, involved in 
 the meshes of the criminal law or in matrimonial 
 complications, were seeking his valuable assistance. 
 I am assured by his associate that in the various 
 cases in which he was engaged, he could never be in- 
 duced to defend unless the defence was founded upon 
 circumstances which the common-sense of an average 
 jury would be likely to approve. If no such defence 
 could be found, he would do what he could to induce 
 
WILLIAM F. HOWE 303 
 
 tlie District Attorney to accept a plea of guilt in as 
 small a degree as possible, and with that his client 
 had to rest content. This, I am confident, was the 
 secret of his remarkable success. There were, in 
 fact, cases of indictments for murder in the first 
 degree where there was a doubtful defence, ia which 
 to save the prisoner's life he advised entering a plea 
 of murder iu the second degree, but when rejected 
 by the District Attorney, and being forced into a de- 
 fence he obtained an absolute acquittal. 
 
 Such was his famous defence in the case of Ella 
 Nelson, who was indicted for having shot the man 
 who played her false. It seemed to be a clear case. 
 She had fired the fatal shot and her motive was 
 revenge. The District Attorney thought that con- 
 viction was certain and he refused to permit her to 
 plead guilty to murder in the second degree. Mr. 
 Howe had little on which to base his defence except 
 the dreadful wrong which she had suffered; the 
 overpowering impulse which led her to the act, and 
 the overwrought feeling of a broken heart. During 
 his address to the jury the prisoner was seated next 
 to him, heavily veiled, her head bowed in her hands 
 in uncontrollable grief. In the midst of his impas- 
 sioned appeal, he wheeled around, seized her hands, 
 drew them apart, and held her arms so extended that 
 her features were exposed to the jury, exclaiming: 
 "Look on those features proclaiming a broken 
 heart." His sudden action frightened her, and her 
 face of ashy hue, deluged with tears, produced the 
 desired effect, and a sympathetic jury, overcome with 
 emotion, acquitted her. 
 
304 LANDMARKS OP A LAWYER'S LIFETIME 
 
 This was also true in tlie case of Considine, who 
 was indicted for murder in the first degree, for shoot- 
 ing an individual with whom he had accidentally 
 come into collision on Broadway during a snow- 
 storm. It appeared from the facts of the case that 
 Considine, in the heavy snow-storm of a winter's 
 day, while passing along Broadway in front of the 
 New York Hospital, collided with a stranger who 
 was carrying a cane. A quarrel ensued. Considine 
 asserted that the stranger became enraged, at- 
 tempted to strike him with his cane, and that in self- 
 defence he had drawn his pistol and shot him. Mr. 
 Howe's assistant in the preparation of the defence 
 called Considine 's attention to the fact that it was a 
 heavy snow-storm ; that it would be difficult to get a 
 jury to believe that the stranger was carrjTing a cane, 
 and that he was quite likely mistaken in supposing 
 that it was a cane in a snow-storm, instead of an 
 umbrella ; but Considine was not to be moved by this 
 suggestion, and confidently and earnestly asserted 
 that it was a cane. Mr. Howe's assistant had ex- 
 hausted every means in his power to obtain the cane, 
 or ascertain whether the deceased owned one. He 
 had his effects searched and followed up every possi- 
 ble clue, but without success. An offer was made to 
 the District Attorney to enter a plea of murder in the 
 second degree, but the offer was rejected. A con- 
 viction seemed certain, until at almost the close of 
 the testimony Mr. Howe, addressing the Court stated 
 that the prisoner's fate seemed to hang upon the 
 production of the cane, and appealed to the Court 
 in the interest of justice, and of the protection of 
 
WILLIAM F. HOWE 305 
 
 liiiinan life, that if the deceased had a oane it should 
 be produced, or its non-production accounted for by 
 the District Attorney, and called upon him to pro- 
 duce it. Of course, Mr. Howe had no suspicion that 
 the District Attorney had any knowledge respecting 
 the cane, and his appeal to the Court was an ' ' arrow 
 shot at a venture," but how great was his astonish- 
 ment when the District Attorney arose and replied : 
 "We will have the cane in court to-morrow morn- 
 ing. ' ' On the following morning the cane was pro- 
 duced. It had a curved handle at the end of which 
 was a heavy piece of metal. The cane was handed to 
 Mr. Howe, and the District Attorney had seated him- 
 self. Seizing it, Mr. Howe raised it, and with tre- 
 mendous force, brought it down with a crash upon 
 the table, making a deep dent. The startled District 
 Attorney rose to his feet in fright, when Mr. Howe 
 bowing most politely said : "I beg your pardon, Mr. 
 District Attorney, I am not surprised at your fright 
 on hearing that blow, and you are now in a position 
 to realise what Considine's fright must have been 
 when he saw that cane raised to strike such a blow 
 as I have struck; and would not you, Mr. District 
 Attorney, if you had been in Considine's place, with 
 a revolver at hand, shoot your assailant, just as Con- 
 sidine did?" This exciting scene, in the presence of 
 the jury, was such a dramatic presentation of the 
 prisoner's defence that even though they might not 
 have felt that the prisoner had proved his innocence, 
 yet they doubtless felt that his guilt was not estab- 
 lished beyond a reasonable doubt, and he was, there- 
 fore, acquitted. 
 
306 LANDMARKS OF A LAWYER'S LIFETIME 
 
 He defended Unger, whose guilt seemed unques- 
 tionable, lie having slain his room-mate and fol- 
 lowed it by cutting up his body and throwing it into 
 the river. Unger had a little daughter who was 
 present during the entire trial, and sat upon his 
 knee, and fondled him in childish innocence, with 
 little realisation of her surroundings and of the 
 tragic fate which awaited her father. It was noth- 
 ing but Howe's intensity and power as an actor, play- 
 ing upon the sympathies of the jury through the 
 medium of the little girl, that saved Unger 's life. 
 The fabric of his defence, dissociated from the sur- 
 roundings of a murder trial, as well as from the 
 impression created by the actor himself, may seem 
 rather flimsy, and his impassioned appeal to the jury 
 almost frivolous in its sentimentality. His defence 
 was that Unger had killed his companion in the heat 
 of a quarrel, and without premeditation, but the Dis- 
 trict Attorney met this by proof of his subsequent 
 disposal of the body, as indicating a murderous in- 
 tent. Upon this feature of the case, Mr. Howe ap- 
 parently swept every vestige of hope for the prisoner 
 aside by boldly admitting that the body had been 
 cut up and thrown into the river, at the same time 
 proclaiming in his most impassioned and dramatic 
 tone that it was not Unger who cut up the body and 
 threw it into the river, but that the thought of his 
 daughter had moved him to it, in the hope of con- 
 cealing -what he had done, and avert from her the 
 stigma of having a murderer for a father. "Look 
 at that little girl," he exclaimed, "It was she who 
 cut off that head ; it was she who mutilated the body, 
 
WILLIAM F. HOWE 307 
 
 yes, 'twas she, 'twas she. For Unger could not bear 
 the thought of having it said that it was her father 
 who did the awful deed, and therefore, when it oc- 
 curred to him to hide it by mutilating the body, it 
 was his little girl that moved him to do it, and I 
 therefore say it was she who did it." 
 
 When we consider his plea under the influence of 
 a sober and impartial judgment, it almost partakes 
 of the absurd, but lawyers, at least, are not strangers 
 to the influence which absurd pleas exert upon the 
 untutored intellects of that boasted bulwark of our 
 liberties, the average jury. Consequently, Unger 
 was only convicted of manslaughter. 
 
 Sometimes one of his successful defences would 
 even surprise the prisoner, very much as the Irish- 
 man on being tried, was surprised with a verdict of 
 "not guilty"; and being asked how it happened re- 
 plied, "Sure, how can I tell you? I thought I was 
 guilty until I was tried. ' ' This was true in the case 
 of Policeman Hahn, who was tried for the murder 
 of Jack Hussy, known as the "life-saver of Castle 
 Garden," and when he was unexpectedly acquitted, 
 his surprise and astonishment knew no bounds. 
 
 It is not easy to explain the source of Howe's 
 power over juries. There was surely nothing in his 
 personality or general appearance to attract, while 
 there was much to repel. He resembled in no re- 
 spect the typical lawyer, but he possessed that in- 
 definable quality which made him a master of men, 
 one whom, notwithstanding eccentricity of dress, and 
 absence of outward indications of refinement and in- 
 tellectual power, men in the jury box instinctively 
 
308 LANDMARKS OF A LAWYER'S LIFETIME 
 
 followed. He was a man of the people ; he thought 
 on a level with the average jury<, he knew what would 
 be likely to appeal to them, and therefore his appeals 
 were not in vain. 
 
 Howe has no counterpart at the bar to-day, and I 
 have never heard or read of any lawyer who was such 
 a remarkable combination of eccentricity of dress 
 and adornment, of dramatic power as an actor, of 
 tremendous force, remarkable shrewdness and cun- 
 ning, and commanding ability in defending criminals. 
 Although at the present day his methods might 
 prove to be out of place, there can be no question 
 that for thirty years he was one of the most interest- 
 ing and successful figures at the bar. 
 
CHAPTER XV 
 
 SOME LEGAL LIGHTS OF NEW JERSEY 
 
 A PROTBACTBD litigation in the United States Circuit 
 Court for the District of New Jersey, which covered 
 a period of about ten years, involving three trials 
 before juries, one motion for a new trial which was 
 hotly contested but finally granted, and two appeals 
 to the Supreme Court of the United States, brought 
 me in contact with distinguished judges and lawyers 
 in the State of New Jersey, and will serve as a thread 
 upon which to hang some recollections of men well 
 worth remembering. The case was one of no espe- 
 cial interest in itself, only involving an issue as to 
 the breach of what is known as the ' ' intemperance ' ' 
 clause in a policy of life insurance, which provided 
 that if the insured, after the issuance of the policy, 
 became ' ' so far intemperate as to impair his health, 
 or induce delirium tremens" the policy should be 
 void. The proceedings in the case were mostly in 
 Trenton. 
 
 The first trial was the only instance in my experi- 
 ence where two judges presided in a civil action dur- 
 ing a jury trial. One of these was Judge William 
 McKennan of Pennsylvania, United States Circuit 
 Court Judge, whose circuit included the State of 
 New Jersey; the other was Judge John T. Nixon, 
 United States District Judge for the district of New 
 Jersey. Both were venerable men of long judicial 
 
 309 
 
310 LANDMAEKS OF A LAWYER'S LIFETIME 
 
 experience. Judge McKennan had been appointed 
 Circuit Judge in preference to Joseph P. Bradley, 
 then the most eminent lawyer in the State of New 
 Jersey and afterwards appointed by President Grant 
 to a seat in the Supreme Court of the United States. 
 Judge McKennan was tall and very portly. Owing 
 to advancing years and a bulky physique, he moved 
 slowly and ponderously, and after he had taken his 
 seat appeared to be sluggish and inert, but his intel- 
 lect was very bright and keen. His countenance 
 lacked expression, but was characterised by thought- 
 fulness and force, and his general bearing was that 
 of great dignity. While his intellectual processes 
 were not rapid, his conclusions, when reached, dis- 
 played common-sense and fairness, as well as de- 
 cision of character. He bore, of course, the chief 
 part in the conduct of the trial, while Judge Nixon, 
 except when he was called upon to advise, appeared 
 to be little more than a spectator. 
 
 Judge McKennan was in striking contrast to 
 Judge Nixon in almost every particular, in none 
 more so than in Judge Nixon's well-groomed appear- 
 ance and neat and well cared for apparel, which in 
 Judge McKennan 's case was rather the reverse. 
 Judge Nixon's smooth, intellectual face was set off 
 by a very fine head of silvery white hair, and he gave 
 every indication of a polished well-bred gentleman. 
 There was lacking, however, in his countenance, an 
 expression indicating force of character, as well as 
 intellectual power, and I do not think that as a force- 
 ful personality, or as a well-equipped lawyer, he was 
 the equal of Judge McKennan. The latter mani- 
 
SOME LEGAL LIGHTS OF NEW JERSEY 311 
 
 fested great patience, forbearance and self-control, 
 while the former was disposed, I think, to be some- 
 what petulant, critical and impulsive, but they were 
 both good men and true, and they manifested every 
 disposition, to hold the scales of justice perfectly 
 even. When objections to evidence were taken. 
 Judge McKennan's composure was entirely un- 
 ruffled, and he would give them patient and intelli- 
 gent consideration. Judge Nixon would shift his 
 position impatiently, and knit Ms eyebrows into a 
 frown, as if time were being wasted but, of course, he 
 could do nothing but restrain further ebullition of 
 feeling until Judge McKennan had made his rulings. 
 Judge McKennan was exceedingly cautious, pains- 
 taking and deliberate, and these very characteristics 
 led him, I think, in one instance at least, to make a 
 fatal mistake. 
 
 An instance of this, illustrating the difference be- 
 tween the two judges, occurred at the close of the 
 trial, which occupied three days. In order to bring 
 to the attention of the Court what my client con- 
 tended was the proper construction of the "intem- 
 perance" clause in the policy, certain "prayers for 
 instructions" to the jury, as they are called in New 
 Jersey, were prepared and delivered to Judge Mc- 
 Kennan. At the conclusion of the addresses of coun- 
 sel to the jury. Judge McKennan adjourned the court 
 until the following day, although there was ample 
 time for him to have made his charge. On the suc- 
 ceeding morning, after ascending the bench, he 
 stated that he had given the prayers for instructions 
 very great consideration, being pleased to character- 
 
312 LANDMARKS OF A LAWYER'S LIFETIME 
 
 ise them as having been prepared with great skill, 
 which I appropriated, quite naturally, as a high com- 
 pliment. He added that in order to avoid the possi- 
 bility of any mistake he had gone over them care- 
 fully, and had written out what he proposed to say in 
 relation to them. He then proceeded to charge the 
 jury upon the general aspects of the case in a lucid 
 and forcible manner, and when he had concluded he 
 took up these prayers, one by one, and read to the 
 jury his replies. Undoubtedly, the construction that 
 he placed upon the clause in the policy was plausible, 
 and at first blush would strike one as entirely reason- 
 able, in fact, so much so, that my senior associate ad- 
 vised me not to question it; but, as the construction 
 for which I contended was the result of careful inves- 
 tigation of the law, and a great deal of consideration 
 of the language used in the policy, and as I was re- 
 sponsible for the management of the case, I could not 
 concur in his judgment. When Judge McKennan had 
 finished I arose and asked that the usual exceptions 
 be noted. Judge Nixon almost jumped out of his 
 chair, and exclaimed with great impatience and petu- 
 lance: "What do you want to take any exceptions 
 for?" This was indeed disconcerting to a compara- 
 tively young practitioner, and might well have been 
 so to an older one, but fortunately, I had the pres- 
 ence of mind to keep standing, and responded as 
 courteously as I could : ' ' The reason that I wish to 
 take exceptions is, not because I have the slightest 
 want of respect for the Court, but because the inter- 
 ests of my client seem to require it." Imagine my 
 relief, and my feeling of profound gratitude when 
 
SOME LEGAL LIGHTS OF NEW JERSEY 313 
 
 Judge McKennan waved Ms hand to Judge Nixon to 
 keep quiet, and then leaning forward and looking at 
 me said, in the most courteous manner, "You are 
 perfectly right, young man; go right ahead." I 
 glanced at Judge Nixon, with, I fear, a triumphant 
 look, as he sank back into his chair with somewhat of 
 a shamefaced expression. The result of it all was 
 that under Judge McKennan 's instructions a verdict 
 went against us, although the jury deliberated over 
 twenty-four hours. When the jury was deliberating 
 I chanced to meet Judge McKennan in one of the 
 corridors ; he looked upon me most benevolently, and 
 placing his hand on my shoulder remarked: 
 "Young man, evidently your jury is not synony- 
 mous." We appealed the case to the Supreme Court 
 of the United States ; the ground of appeal was the 
 exceptions just referred to, and that court unani- 
 mously adopted our construction of the clause of the 
 policy, reversed the judgment, and remanded the 
 case for a new trial (123 U. S., 739). 
 
 At the second trial our adversaries were re- 
 inforced by that eminent lawyer and distinguished 
 man, Cortland Parker. He was an unusually well- 
 equipped lawyer and able advocate. Although well 
 advanced in years, his tall, spare frame was as erect 
 and his movements were as lithe, and his step as 
 quick and firm as ever. I do not think that there 
 was a great deal of personal magnetism about Mr. 
 Parker. I would describe him as rather cold and 
 repellent in manner, although in personal appear- 
 ance he was highly attractive, and evidently well- 
 bred and cultured. His position at the bar of New 
 
314 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Jersey tad long been very high. He was, I think, 
 an intimate friend and college classmate of Mr. Jus- 
 tice Bradley, of the Supreme Court of the United 
 States. His character was of the highest, and his 
 distinction was such that I cannot account for his 
 failure to be selected for important public oflSce on 
 any other ground than his lack of personal mag- 
 netism, an incapacity to create friendships gen- 
 erally, a somewhat lofty demeanour, and an apparent 
 inaccessibility. He has, however, contributed to 
 the service of his native State two public men of 
 fine character and large attainments in the persons 
 of his two sons — Mr. Justice Parker, of the Su- 
 preme Court of New Jersey, and the Hon. B. Wayne 
 Parker, a representative in Congress. 
 
 Mr. Parker manifested great perturbation over 
 the method which I thought it wise to adopt to elicit 
 the testimony of certain witnesses, whose attitude 
 in the interval between the first and second trials 
 had, through some occult influence, changed from 
 that of friendliness to hostility. Their testimony 
 for use on the second trial was taken out of court 
 and, owing to this change in their attitude, I felt 
 obliged to resort to a somewhat drastic method of 
 examination. I laid a very substantial foundation 
 proving amply their manifest hostility, and after 
 doing so I took the record of their previous testi- 
 mony and reading from it each question and an- 
 swer, inquired whether they so testified on the 
 previous trial, to which they were obliged to an- 
 swer " Yes," and I followed it by inquiring 
 whether that testimony was then true, to which also 
 
SOME LEGAL LIGHTS OF NEW JERSEY 315 
 
 they necessarily responded "Yes." As their testi- 
 mony was of very great importance in establishing 
 our case, I fell under Mr. Parker's displeasure for 
 adopting that method. He characterised it by al- 
 most every epithet he could find, and argued against 
 its admission with all the strenuousness of which he 
 was capable, but the judge ruled that the method 
 adopted, in view of the manifest hostility of the wit- 
 nesses, was perfectly proper, and received the testi- 
 mony. I remember that Mr. Parker before the 
 jury, directed his shafts of ridicule against it, and 
 likened it to the action of a fond parent who de- 
 sired to train up his obdurate son in the nurture 
 and admonition of the Lord, and therefore proceeded 
 to confront him and put him through his catechism. 
 First putting the question and endeavoring to elicit 
 his answer from memory, and failing to do so, he 
 followed it by reading him the answer to the ques- 
 tion and compelling him to repeat it. This amused 
 us all very much, and quite likely had an effect with 
 the jury, but "he laughs best who laughs last" 
 and whatever his impression may have been upon 
 the jury, his attempt in the presence of Mr. Justice 
 Bradley fell perfectly flat, for Mr. Justice Bradley 
 attached sufficient importance to this testimony to 
 induce him to set the verdict aside. 
 
 Mr. Parker was a pastmaster in the art of trying 
 a case before a New Jersey jury. His very appear- 
 ance was a guarantee of the character of his side 
 of the case, and he marshalled the facts and pre- 
 sented the witnesses in their most attractive phase. 
 
 Upon this trial I brought to my client's assistance 
 
316 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Ex-Governor and Judge Joseph D. Bedle. He was 
 the antipodes of Mr. Parker. He was short and 
 rotund, he had a remarkably shaped head, and a 
 bright and expressive countenance. He had served 
 for a long time with distinction as a justice of the 
 Supreme Court of New Jersey, and while in that 
 position, was nominated and elected governor 
 of the State. He was an accomplished lawyer, dig- 
 nified, serene and good-natured. He was exceed- 
 ingly bland and suave; he made everybody his 
 friend, from the hall-boy in the hotel to the judge 
 on the bench. Lord Westbury once spoke in his 
 sarcastic way of Bishop Wilberforce as "this 
 saponaceous and oleaginous prelate" — and there 
 was just a touch of this saponaceous and oleaginous 
 quality about Governor Bedle, but it was in no sense 
 unattractive, or inconsistent with his fine bearing, 
 and had a very helpful influence in attracting friends. 
 
 My acquaintance with Governor Bedle became 
 quite intimate through our long association in the 
 case, more particularly by conversations, some of 
 them of a confidential character, during our re- 
 peated journeys between New York and Trenton. 
 His was a lovable nature, full of the milk of human 
 kindness, genuine and hearty with his friends, and 
 charitable toward those whom he disliked. He was 
 animated, buoyant and lighthearted, and his promi- 
 nent career and wide experience gave to his con- 
 versation an unusual charm. 
 
 We struggled in the pursuit of what we supposed 
 was "Jersey justice" and we probably got it, but 
 it was not the kind we were looking for. The ver- 
 
SOME LEGAL LIGHTS OF NEW JERSEY 317 
 
 diet of the jury against us was not one which satis- 
 fied Judge Wales of Delaware, who presided at the 
 second trial. He expected a verdict in our favor, 
 and stated as much to me, expressing the opinion 
 that the verdict should be set aside as against the 
 evidence, but that he was not inclined to take the re- 
 sponsibility of doing so, and suggested that we 
 should apply to Mr. Justice Bradley who, under his 
 assignment as Justice of the Supreme Court of the 
 United States for that Circuit was the presiding 
 justice, to hear the argument on a motion for a new 
 trial, and that he would sit with Mr. Justice Bradley 
 and inform him of his views. Mr. Justice Bradley 
 fortunately consented to hear the motion, and it was 
 argued by Governor Bedle and myself on the one 
 side, and by Mr. Parker and Mr. John Linn on the 
 other. 
 
 Mr. Justice Bradley was an exceedingly interest- 
 ing individual. He was short in stature, and rather 
 slight in physique. He had one of the strongest 
 faces that I ever looked upon, and a dome-like fore- 
 head. His hair of steel grey hung down very 
 straight; his face had almost no colour, his eyes 
 were a bluish grey, and his tout ensemble was of a 
 very steel grey hue. His face had so much char- 
 acter and strength, and his forehead was so full and 
 high, that he seemed to me to be princeps inter 
 principies on the bench of the Supreme Court. His 
 expression was one of dignified severity and tre- 
 mendous force, with every evidence of highly de- 
 veloped intellectuality. He always appeared to me 
 to be almost the strongest, if not the strongest, in- 
 
318 LANDMARKS OF A LAWYER'S LIFETIME 
 
 tellectual force upon the Supreme Court bench, and 
 he certainly gave it most valuable service, and added 
 to its great distinction. No one can read his 
 opinions without being impressed with his profound 
 learning, his sound reasoning, and the mathematical 
 accuracy of his logical processes, which oftentimes 
 made his opinions appear to be more like a demon- 
 stration of a difficult problem in mathematics than 
 a mere expression of a judicial conclusion. This, 
 I think, was due in great measure to the mathemat- 
 ical cast of his powerful intellect. He was not only 
 a student of mathematics, but an expert mathemati- 
 cian who resorted to the demonstration of difficult 
 mathematical problems as a recreation, indulging in 
 calculations of the eclipses of the sun and moon, in- 
 vestigations of the transits of Venus, and the 
 preparation of calendars which calculated the date 
 of the week days for centuries to come. He was 
 also a great Bible scholar, studying it from all 
 points and angles, investigating its hidden mys- 
 teries, and probing the depths of its profoundest 
 truths. This study of the Bible, and its beautifully 
 simple style is responsible, I believe, to a consid- 
 erable degree, for the purity of diction which char- 
 acterised his opinions. He was one of the great 
 masters in the law before he went on the bench, and 
 it is said that he practically dominated the courts 
 of New Jersey. 
 
 In this connection an incident was related to me 
 of his appearance on one occasion in the Court of 
 Errors and Appeals of the State of New Jersey, 
 when he desired an adjournment for some reason 
 
SOME LEGAL LIGHTS OP NEW JERSEY 319 
 
 whicli, althougli not unreasonable in itself, was not 
 such as to which, the Court felt it their duty to ac- 
 cede. He argued the matter with considerable 
 pertinacity, but the Chief Justice refused his appli- 
 cation. Mr. Bradley, without further ado, jammed 
 his hat upon his head in high dudgeon in the pres- 
 ence of the Court, picked up his papers and strode 
 wrathfully out of the court room. His adversary 
 was left in possession of the field, but evidently did 
 not dare to proceed, and the Court, after its amaze- 
 ment at Mr. Bradley's conduct had subsided, an- 
 nounced that the case was of such importance that it 
 seemed to be unwise to hear it in Mr. Bradley's ab- 
 sence, and without the presentation of his argu- 
 ment, and that, therefore, the case would be ad- 
 journed. 
 
 I suppose he felt very much as Thaddeus Stevens 
 of Pennsylvania did on one occasion when his feel- 
 ings were so outraged by the action of the Court 
 in one of his cases, that regardless of decorum and 
 of the dignity of the Court, he displayed consider- 
 able temper, and manifested it in a marked degree 
 in his departure from the court room. Just as he 
 had reached the door, the voice of the judge was 
 heard exclaiming: "Mr. Stevens, Mr. Stevens, 
 stop sir," and stopping, the judge asked, "Mr. 
 Stevens, do you intend to express your contempt for 
 the Court?" "No," Mr. Stevens replied, "I am 
 trying mighty hard to conceal it." 
 
 At one time Justice Bradley desired very much 
 the appointment of Chancellor of the State of New 
 Jersey, but the fact that he was counsel for the 
 
320 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Camden and Anaboy Eailroad and represented other 
 large corporate interests prevented his appoint- 
 ment. Later on he was a candidate for appoint- 
 ment as judge of the United States Circuit court, but 
 in this also he failed, Judge McKennan being 
 preferred before him. This was indeed fortunate 
 for the country, for, after he had arrived at a pe- 
 riod in life when the expectation of judicial prefer- 
 ment was remote. President Grant elevated him to 
 the exalted position which he filled with the greatest 
 distinction for many years. 
 
 One of his characteristic expressions was that of 
 seeming introspection, and soon after taking his 
 seat to hear our case he seemed to be completely 
 withdrawn into himself, oblivious of all his sur- 
 roundings, and inattentive to the proceedings, but 
 there was nothing at the time more alive and acute 
 than he. As it became my duty to make the opening 
 argument I could not help feeling, as I proceeded, 
 that I was not making much of an impression, as I 
 probably was not, and that this apparent inatten- 
 tion was due to the fact that he did not care to listen, 
 but as I went on I soon observed from the ques- 
 tions he put from time to time that he was follow- 
 ing all that was said, without losing a word. This 
 attitude characterised him during the entire argu- 
 ment on both sides, and, at its conclusion, the printed 
 volume of testimony and the briefs were presented 
 for his examination and consideration, but he was 
 even then in complete possession of the entire case, 
 and the next day but one I was surprised to receive 
 a message from the clerk of the Court that our mo- 
 
SOME LEGAL LIGHTS OF NEW JERSEY 321 
 
 tion had been granted, and that the verdict had been 
 set aside. 
 
 There is no occasion to give the remaining history 
 of this somewhat unimportant litigation, which has 
 served my purpose to furnish some recollections of 
 the four eminent men to whom I have referred. 
 But yet, I think I should in justice add that notwith- 
 standing Mr. Justice Bradley's decision that the 
 verdict of the jury was against the evidence and, as 
 he expressed it, that if intemperance constituting a 
 breach of the condition of the policy had not been 
 established in this case, it was difficult to under- 
 stand how it ever could be proved, we could hardly, 
 even then, expect with the traditional love of Jersey 
 men for New Jersey "applejack" and their tender 
 consideration for those "overtaken in a fault" oc- 
 casioned by its excessive use, and with an attractive 
 widow on the one side, and a soulless insurance com- 
 pany on the other, that there could be any other re- 
 sult than a verdict for the plaintiff, which was ul- 
 timately secured, but with which the Supreme Court 
 of the United States differed, declining, however, to 
 set it aside because after three verdicts of a jury 
 there should be an end to the litigation. 
 
 The outcome was unsatisfactory so far as the ver- 
 dict was concerned, especially in view of the opinion 
 of Mr. Justice Bradley and of the Supreme Court 
 of the United States differing with the findings of 
 the jury, but, notwithstanding the result and the 
 expense of the litigation, which was considerable, 
 and out of all proportion to the amount involved, the 
 construction put upon the intemperance clause of 
 
322 LANDMARKS OF A LAWYER'S LIFETIME 
 
 the policy by the Supreme Court was worth in sub- 
 sequent transactions far more than the expense in- 
 volved, while the vigorous defense interposed, 
 which became a matter of common knowledge in in- 
 surance circles, operated as a deterrent influence 
 upon intemperate men procuring insurance in suc- 
 ceeding years. 
 
CHAPTER XVI 
 
 A msriQUE TRIO 
 
 QEOKQE, THE COUNT JOANNES. 
 
 A STRANGE character that flitted about the courts 
 in the 70 's was a threadbare, but rather carefully 
 dressed individual, known as the Count Joannes. 
 His cadaverous face, steel grey eyes and compressed 
 lips, partly concealed by a slight mustache, produced 
 a set expression of antagonism to all men and 
 all things. I used to see him repeatedly, but I never 
 saw him smile. He was generally dressed in dark 
 garments, black originally, but grown rusty by use, 
 and there was usually a velvet collar to his coat. 
 He wore a wig of long brown curly hair, one curl 
 adjusted to fall over his forehead. Suspended from 
 a ribbon encircling his neck outside his shirt col- 
 lar was what he called an "order," or decoration 
 of nobility, conferred upon him by some unheard-of 
 potentate, entitling him to substitute for his real 
 name, George Jones, the more high sounding title 
 of Count Joannes. He was a kind of busybody; he 
 rarely tried a ease, but he seemed to be on the out- 
 skirts of certain sensational cases, or occupied 
 with unimportant matters which I have sometimes 
 thought were not genuine, but devised by him to 
 afford an opportunity to address the court. His 
 enunciation was crisp and distinct, but I never knew 
 him to utter a proposition of any kind that would 
 
 323 
 
324 LANDMARKS OF A LAWYER'S LIFETIME 
 
 appeal to justice, or even to common-sense. He 
 would inject himself into important litigations oc- 
 casionally, representing some obscure interest en- 
 titling him to speak, which seemed to be all that 
 he desired to do, apparently never expecting a fa- 
 vourable result. In this way he succeeded in get- 
 ting into the Jumel will case, in which he also suc- 
 ceeded in getting excoriated by Mr. Carter, an ac- 
 count of which has been given elsewhere, but the 
 "Count" had an opportunity to retaliate, as we 
 shall presently see. 
 
 The Count had been at one time an actor of con- 
 siderable note, and had left the "boards" for the 
 legal arena. The older members of the bar will 
 probably remember an occasion when the Count, 
 for one night at least, returned to the "boards" 
 in a representation of Hamlet. He was not, I fear, 
 appreciated. The galleries with their mock ap- 
 plause and cat-calls, and the newspaper comments 
 on the performance were his undoing, and the great 
 occasion of his return to histrionic scenes left him 
 vanquished and disappointed. One of the stories 
 told of the Count is this : He happened once to be 
 in the court room where Judge John E. Brady was 
 presiding at the hearing of an election case, where 
 a count of ballots was disputed, when one of the 
 lawyers exclaimed in argument : ' ' All that we want 
 is an honest count," and Count Joannes, rising in 
 his place, responded dramatically: "Behold the 
 man. ' ' 
 
 I imagine the Count was always impecunious and 
 an instance of this which occurred during the early 
 
A UNIQUE TRIO 825 
 
 years of his practise was related by one of our 
 eminent judges. The embryo judge happened to 
 meet the Count in the court house just as the latter 
 was emerging from one of the court rooms and, notic- 
 ing the former, approached him and earnestly be- 
 sought him for a loan of two dollars to pay a fee to 
 the County Clerk, as he explained, in connection with 
 some legal matter, giving of course good and suf- 
 ficient reasons for his application. The young 
 lawyer had unfortunately left his purse at his office 
 and explained, on that ground, his inability to ac- 
 commodate the Count, adding that if he had had his 
 purse with him, he would have been glad to do so. 
 Then they separated, and after the business at court 
 was transacted, the young lawyer returned to his of- 
 fice. What was his surprise to find awaiting him our 
 friend, the Count, who then and there renewed his 
 application not only for the two dollars but for 
 eight dollars additional. I suppose the eight dol- 
 lars was for the time and trouble it took 
 him to go from the court house to the office. Un- 
 sophisticated youthfulness induced the embryo 
 judge to acconmiodate the Count with the ten dol- 
 lars, a loan which, it is probably unnecessary to say, 
 was never repaid. Personally, I think he got oflf 
 rather cheap. 
 
 The Count was sometimes an active litigant in his 
 own behalf, and it is in the course of one of these 
 litigations, which attracted public notice at the time, 
 that there is revealed his peculiar methods, marked 
 eccentricities, and extraordinary vanity and ego- 
 tism. The very mysterious murder of Benjamin 
 
326 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Nathan, a prominent citizen, tlie mystery of which 
 was never solved, led the Count Joannes to interest 
 himself in it, in an endeavour to detect the murderer. 
 In the course of this attempt, he became involved 
 in complications of such a character, that the New 
 York Times indulged in severe comments and stric- 
 tures upon the Count's conduct. This led him to 
 institute the well known action of "George, the 
 Count Joannes against Louis Jennings and George 
 Jones, proprietors and editors of the New Yorh 
 Times." The complaint, in its statement of what 
 are known as the "inducements" to the action, is 
 decidedly characteristic. Introducing himself as, 
 "I, the undersigned George, the Coimt Joannes, 
 formerly and prior to the month of March A. D. 
 1847, publicly known as George Jones, author &c. 
 and since that date often written of by my former 
 name and that of my present name and addition, 
 and which surname is often spelled ' Johannes ' ; " he 
 proceeds to tell us of himself, and advises the court 
 as to what it will do, saying: "And I aver that I 
 am and have been for nearly four years an attorney 
 and counsellor at law of the Supreme Court of New 
 York, and of which official and public fact this 
 honourable court will take judicial notice." His 
 statement of the location of his office and residence 
 is interesting, although as a part of the complaint 
 it was quite unnecessary: "And I aver that I prac- 
 tise my said profession and have my law office in 
 the City of New York, to wit: 106 Broadway, and 
 reside in said metropolis, to wit: at Leggett's Hotel 
 near the City Hall." Vanity and egotism get the 
 
A UNIQUE TRIO 327 
 
 better of him in the next allegation: "And I aver 
 that I am also a public lecturer, and oratorical illus- 
 trator of the Holy Scriptures, and of works of 
 Shakespeare and other poets." "Oratorical illus- 
 trator" is good, but I imagine that he means by it 
 that he had been an actor of Hamlet. He tells us 
 about his literary efforts and his means of liveli- 
 hood: "And I also aver that I am a public author 
 and writer for the public journals, and in each and 
 in all of the foregoing intellectual employments, 
 apart from the high aspirations of honourable fame, 
 they are my means of income, emolument and profit, 
 all of which would be ruined and destroyed were the 
 hereinafter recited grievances and malicious libels 
 true and not false." 
 
 It is not necessary to pursue his complaint further, 
 although it furnishes abundant evidence of his 
 vain-glorious and extravagant expressions. When 
 the action was tried, the Count's past career was 
 opened up, and it then appeared that he had been 
 for some years before his advent in New York a 
 resident of Boston, Massachusetts. There, too, he 
 had discovered in the public press obnoxious com- 
 ments upon his doings, which his elevated sense of 
 honour and impetuous nature could not for an in- 
 stant brook, the consequence being that he in- 
 stituted thirteen actions against various newspapers 
 for libel. The newspapers, I imagine, thought to 
 get ahead of him, and there was therefore presented 
 in the Massachusetts Superior Court in February, 
 1861, an indictment against him charging that he, on 
 the first day of January, 1861, and on divers other 
 
328 LANDMARKS OP A LAWYER'S LIFETIME 
 
 days and times, "divers quarrels, strifes, suits and 
 controversies among the honest and peaceful citi- 
 zens of said Commonwealth, then and there on the 
 days and times aforesaid did move, procure and stir 
 up and excite, and so the jurors aforesaid upon 
 their oaths aforesaid do say that the said George 
 Jones otherwise called 'George, the Count Joannes 
 of Boston' aforesaid, on said days and times was and 
 still is a common barrator, and common nuisance of 
 the citizens of the Commonwealth, and against the 
 peace and dignity of the Commonwealth." Serious, 
 indeed, if true ; and I regret to say that upon the trial 
 of this indictment by a common jury the Count was 
 found guilty. But he was never sentenced. On 
 the contrary he demanded sentence, but, extraor- 
 dinary as it may seem, the Court refused to sen- 
 tence him, for, as the Count observed, he could not be 
 sentenced as a barrator because he was not a member 
 of the bar, and there could therefore be no barratry. 
 The Count turned the tables on the newspapers, 
 however, because a trial of one of the actions re- 
 sulted in a verdict in his favour for $2,000, which the 
 Supreme Court of the State, after three trials had 
 been had, sustained. 
 
 He was not satisfied with bringing an action 
 against Messrs. Jennings and Jones, but he also ap- 
 pealed for justice through the columns of the New 
 York Sun, which published a letter from him, cer- 
 tain portions of which give us an excellent idea of 
 the noble Count's mental processes, and the estimate 
 he formed of his individual excellence. 
 
A UNIQUE TRIO 329 
 
 "To the Editor the Sun, 
 
 "Sir: I consider it to be my solemn duty as a citizen, 
 and by my oath as counsellor of the Supreme Court, and 
 hence a conservator of the public peace, to render a narra- 
 tive to the people of my endeavors to discover the murderer 
 of the lamented Benjamin Nathan, or the accomplices in 
 the homicidal felony, and I claim upon sworn testimony to 
 have discovered both. 
 
 "As in the case of the Maiden murderer who through my 
 diplomatic skill finally confessed, and thence was convicted 
 and executed, I have had to meet opposition where it should 
 not have existed, and as in the former case, threats of as- 
 sassination if I continued investigations. 
 
 "At the impolitic inquest I demanded that a Jew shall 
 not be sworn on the Christian Cross or the new testament, 
 and finally he held his hand up and was 'affirmed,' thus 
 changing a Jew iuto a Quaker! — out-rivalling Ovid and 
 Jupiter. ... I have publicly said and I repeat it here that 
 if my brother murdered my father, I would give that 
 brother up to public justice and 'though he had twinned 
 with me both at a birth, he should lose me.' Nor 
 should I require the classical fortitude of Junius Brutus 
 who for treason gave the signal for his son's death. . . . 
 I received, (to write in alliteration) numerous letters from 
 Jews and jesters. Gentiles and gentlemen, matrons and 
 maidens, ladies and larceners, slanderers and sumners, 
 clergjrmen and cheats, priests and prisoners, bombastics, 
 buUies, bankers, brokers, brilliant and bungling burglars, 
 dated in this City, and from Canada, and from the East, 
 West, North and South, a collection of compositions as 
 would make a museum of mockery of sense to throw me off 
 my guard, and some demanded death against me and, in 
 other instances, wise suggestive conclusions." 
 
330 LANDMARKS OF A LAWYER'S LIFETIME 
 
 In the course of the trial he tells us with great 
 gusto about his career in Boston. To quote a little : 
 
 "One of these persecutions against me in the City of 
 Boston which I entirely conquered, and so far from being 
 requested to leave the city, the greatest compliment to me 
 immediately following a prosecution took place by a public 
 demonstration in my favour, being a public benefit, when I 
 realised over twelve hundred doUars upon my representa- 
 tion of Hamlet." 
 
 Among the witnesses at the trial, it is singular 
 enough to note, was that distinguished lawyer 
 James C. Carter. I have already alluded to 
 the incident in the Jumel will case, when the Count 
 Joannes was subjected to a flaying process by Mr. 
 Carter, and perhaps just enough of the indigna- 
 tion which Mr. Carter felt remained to lead him 
 to consent to give under oath his estimate of the 
 Count's character. That was the upshot of Mr. 
 Carter's testimony, and when he was asked with re- 
 gard to it, his reply was, "I should say it was rather 
 questionable." Then the Count took him in hand. 
 The first question which he put was as follows: 
 "You have used the Shakesperian word against me 
 as Hamlet did against the ghost in a questionable 
 shape, what do you mean by 'questionable'? " Nat- 
 urally Mr. Carter's reply was, that by questionable 
 he meant that it was not good. Whereupon the 
 Count resumed the attack by inquiries regarding 
 Mr. Carter's conduct toward him in the Jumel will 
 case and put the following question to him: Q. 
 "Did you not raise your hand at me within six or 
 eight inches right at my face and I appealed to the 
 
A UNIQUE TRIO 331 
 
 Court against that wrong and insult?" A. "I re- 
 member using considerable gesticulation but how 
 near I came to your face precisely, I cannot say." 
 And thereupon the Count retorted : "I have proved 
 your malice against me, you may retire. ' ' The Count 
 was, after all, victorious, and although he had laid 
 his damages at $75,000, an unappreciative jury, un- 
 able to estimate highly in dollars and cents the deep 
 wounds inflicted on the Count's sensitive feelings 
 and the damage to his "honourable aspirations," 
 salved over his wounds with a verdict of $750. I 
 have no doubt that this, with the taxable costs of 
 the litigation, which would have swelled the amount 
 probably to $1,000, would have been a great wind- 
 fall to the impecunious count but, unfortunately, 
 cold and calm scrutiny of the printed record by an 
 unfeeling Appellate tribunal snatched the fruits of 
 victory from his grasp. But he, at least, availed 
 himself of the opportunity of telling in his brief that 
 august court more of himself. He informed the 
 court: "I not only remained in the City of Boston 
 but, subsequently, I was invited by letter, headed 
 by the Honourable Mayor of Boston, to receive the 
 greatest mental honour in the power of New Eng- 
 land to bestow upon the citizen namely: To pro- 
 nounce in FaneuU Hall, a public oration upon the 
 life and character of Washington on the anniver- 
 sary of the patriot's birthday. I accepted the hon- 
 our as before me did Daniel Webster my parental 
 friend, Edward Everett and Eobert C. Winthrop, 
 which was the fifth oration I pronounced in that 
 historical hall. ' ' 
 
332 LANDMARKS OP A LAWYER'S LIFETIME 
 
 Beholding him then, in our mind's eye, on the plat- 
 form of Faneuil Hall, in dramatic pose, deliver- 
 ing one of his ' ' oratorical illustrations, ' ' it may well 
 serve as the point at which we may appropriately 
 ring the curtain down upon this unique and alto- 
 gether unusual and strange personality. 
 
 "BARBISTER" NOLAN 
 
 I doubt if there was ever a more genuine son of 
 Erin than Thomas Nolan, or as he was frequently 
 called, "Barrister" Nolan. His parents were thor- 
 oughly respectable, his father having occupied, it is 
 said, the position of sheriff of one of the counties 
 in Irel^d. At an early age the barrister came 
 to this country and found a residence in Cleveland, 
 Ohio. Whether he ever practised law in Cleveland, 
 I do not know; but upon his advent in New York, 
 having obtained admission to the bar, he was asked 
 by one of the judges before whom he was appearing 
 to give his name. Drawing himself up in his loftiest 
 manner he replied : ' ' Me neem is Nolan, from Clave- 
 land, 0-hee-o." He was a giant in stature, being 
 about six feet six in height. His large, well-rounded 
 form, his characteristically Irish countenance, his 
 dignified bearing, which gave the impression of be- 
 ing assumed, although probably quite natural, his 
 erect carriage, so erect that he seemed to be lean- 
 ing backward, his slow and ponderous step, his 
 black broadcloth garments, generally a little 
 threadbare, his white tie and stove-pipe hat, pre- 
 sented a conspicuous figure amid the throng of law- 
 yers in a court room, or in the procession on Broad- 
 
A UNIQUE TEIO 333 
 
 way. Like many of his Irish brethren, he had 
 political aspirations, and loved to feed at the pub- 
 lic crib, but however seriously he might take himself 
 it was impossible that any one should take him seri- 
 ously, and notwithstanding his assiduity in cultivat- 
 ing political aflSliations and attending political con- 
 ventions, where his absurd phraseology and his nat- 
 ural humour had full play, he was never so fortu- 
 nate as to secure that recognition which he probably 
 thought that his talents deserved. 
 
 In his later days he was much in need of profes- 
 sional employment and pulled the political wires as 
 well as he was able, to secure an appointment in 
 the corporation counsel's ofiSce. After the wires 
 were aU in order, he applied to that functionary, 
 who informed him that there was a place vacant, 
 but he feared that it was not such as would be of 
 sufficient importance to attract the barrister, as it 
 paid only fifteen himdred dollars. "To think," said 
 the barrister, "that a man of my professional emi- 
 nence and skill should be offered a paltry position 
 paying fifteen hundred dollars." "But," replied 
 the corporation counsel, "there is an applicant now 
 awaiting an appointment who would be only too glad 
 to accept this position if it were offered, and if you 
 do not want it, I will give it to him." "Let me have 
 time to think it over," replied the barrister, "and 
 I will consult my friends." The corporation coun- 
 sel gave him until the following day, when the 
 barrister again appeared, and stated he had thought 
 it over and consulted his friends, and that his friends 
 had advised him not to accept such an unimportant 
 
334 LANDMARKS OF A LAWYER'S LIFBTIMJE 
 
 position with such, a meagre salary. "Well," re- 
 plied the corporation counsel, "that is the best that I 
 can do and I will therefore offer it to the other appli- 
 cant." "I told you," responded the barrister, 
 "that I had thought it over, and that my friends 
 had advised me not to accept it, but I have con- 
 cluded not to take the advice of my friends, and I 
 shall accept the position." 
 
 His demeanour in court was irresistibly funny; 
 everything that he said and did was marked by 
 solemnity and dignity, but his aggregation of words 
 and arrangement of phrases was so unusual that 
 they alone would disturb the decorum of the most 
 decorous and, in addition, there was an apparently 
 unconscious bubbling over of wit that was irresis- 
 tible because it was unpremeditated. He had an un- 
 usually rich and expressive Irish brogue, incapable 
 of reproduction, which added a most interesting and 
 amusing feature to his utterances, and without 
 which any anecdotes concerning him, however amus- 
 ing, must necessarily be deprived of much of their 
 humour. His voice was deep and strong, and, in 
 addressing the Court or jury, it would be with such 
 profound respect and seriousness that it gave the 
 impression of a kind of mock dignity. It is a pity 
 that some of his summings up to juries were not 
 stenographically reported as a contribution to the 
 wit and humour of the bar, but there are stories 
 told of him which illustrate his character. 
 
 In addressing the Court, especially when desir- 
 ing a favour such as the adjournment of a case, he 
 would use his blandest tones, and indulge in expres- 
 
A UNIQUE TRIO 335 
 
 sions whicli he intended to be exceedingly persua- 
 sive, but which led him to overstep the bounds of 
 respect for the court. For instance, the late Surro- 
 gate Eollins was generally clothed on the bench in 
 a very neat and well-fitting double-breasted coat. 
 Nolan appeared before him on one occasion to move 
 the adjournment of some proceeding then pending, 
 but his application did not seem to meet the ap- 
 proval of the Surrogate, whereupon Nolan pro- 
 ceeded in his most persuasive manner to appeal to 
 the generosity and warm heart of the Surrogate by 
 addressing him as "Now, your honour is a fine 
 double-breasted Judge, and I am sure you will grant 
 me the favour I ask." 
 
 He was arguing a motion in a case before the late 
 Judge Hamilton W. Robinson, who was one of the 
 most accommodating and considerate judges on the 
 bench. Nolan came into court with a number of 
 volumes of old reports, from which he quoted quite 
 liberally, but not much to the point. After arguing 
 very seriously, but as was usual with him, irrele- 
 vantly, he wound up his argument in substantially 
 these words: "Now, your honour, I have referred 
 your honour to these old and familiar cases, and I 
 am sure they will be supported by the decisions of 
 other courts, particularly by the courts of that beau- 
 tiful green island across the sea where your hon- 
 our's learned opinions are so often cited with the 
 great respect which they command everywhere, as 
 authorities." Certainly, Nolan must have kissed 
 the blarney stone to good effect. 
 
 Nolan used to appear considerably in criminal 
 
336 LANDMARKS OF A LAWYER'S LIFETIME 
 
 cases of minor importance and, after one of his 
 unsuccessful defences, commented on Eecorder 
 Smythe's severity in dealing witli persons accused 
 of crime, evidently considering every accused per- 
 son guilty, although he gave him the credit of hold- 
 ing the scales of justice even, and expressed the 
 opinion that Eecorder Smythe was "a foine man 
 and a very foine judge, but that he liked to convict 
 because he believed that ivery living man should be 
 in state's prison at least 'wance.' " 
 
 A boy in whom a Catholic priest, one of Nolan's 
 friends, was interested, had committed petit larceny, 
 and Nolan was employed at the suggestion of the 
 good priest to defend him. Calling upon Nolan, 
 the priest informed him of the previous career of 
 the boy and his respectable connections, and gave 
 his version of the facts, and then inquired: "Now, 
 Counsellor Nolan, don't you think that you will be 
 able to get the boy acquitted?" "Well, Father 
 Blank," replied Nolan, "ye know that these cases 
 whin they come before Eecarder Smythe are al- 
 ways hard to win, but I think that with your infloo- 
 ence and a little perjury, we will be able to get him 
 off." 
 
 Nolan was convivial, and had a fondness for old 
 Irish "mountain dew," and was always in demand 
 among his associates at the festive board. On re- 
 turning from one of these occasions, he entered a 
 street car and found some difficulty in extracting 
 the necessary nickel from his capacious pocket; 
 succeeding finally, he handed it to the conductor 
 with the observation in his most impressive tones: 
 
A UNIQUE TRIO 337 
 
 "Now, young man, here is your foive cints and the 
 relation of passenger and common carrier for hire 
 is established betune us." After he had taken a 
 vacant seat which was the only one unoccupied, a 
 very stout woman entered the car and it was neces- 
 sary for her to stand unless some passenger were 
 courteous enough to offer her a seat. This Nolan 
 proceeded to do. Rising from his seat unsteadily 
 and looking up and down the car he addressed the 
 passengers : ' ' Now, I will be wan of three persons 
 to give this stout woman a sate." On another sim- 
 ilar occasion he was sitting calmly reflecting, prob- 
 ably on the virtues of total abstinence, when a mid- 
 dle-aged and quite homely woman entered the car 
 in which there was no seat unoccupied. Seeing a 
 young man seated nearly opposite, Nolan gazed at 
 him intently for a few moments, and then broke out, 
 "Now, young man, jist get up and give this woman 
 a sate; if she had been young and handsome you 
 would have given it to her long ago. ' ' 
 
 One of his court experiences was in connection 
 with a case of personal injuries occasioned by neg- 
 ligence of a railroad company, resulting in the death 
 of the husband of a good woman named Moriarity. 
 The case had been on the calendar for a long time, 
 and, notwithstanding that the barrister had on 
 several occasions procured the attendance of his 
 client and witnesses, prepared to try the case, he had 
 been met with applications by the company for ad- 
 journment until the widow Moriarity had become 
 exceedingly restive, and had probably poured the 
 vials of her wrath upon the devoted head of the bar- 
 
338 LANDMARKS OF A LAWYER'S LIFETIME 
 
 rister. As the case was again to be called, Nolan 
 made all Ms preparations, and secured the attend- 
 ance of the widow Moriarity and the witnesses at his 
 office, where he preferred to leave them until the 
 case was surely to be tried. But he was agaiu met 
 with an application for postponement, and, as the 
 reason for the adjournment appeared to be sound, 
 the judge, notwithstanding Nolan's most eloquent, 
 earnest and persuasive appeal — reminding the judge 
 of the previous adjournments, of his preparations 
 for trial, and the inconvenience to the witnesses 
 and disappointment to the widow Moriarity — de- 
 cided that the application must be granted; where- 
 upon Nolan, rising in all his solemn dignity and 
 looking earnestly at the judge asked: "Now, yer 
 honour, having granted the adjoomment, will yer 
 honour grant me wan last requist?" "Certainly, 
 Mr. Nolan, ' ' replied the judge, " if it is in my power 
 to do so." "Well," inquired Nolan, "the last re- 
 quist I would make of yer honour is this. Will yer 
 honour be good enough to go over to me office and 
 tell the widow Moriarity that you have adjoorned 
 the case." 
 
 During his career at the bar there were in circu- 
 lation among the lawyers numerous ludicrous inci- 
 dents connected with his appearance before courts 
 and juries, and entertaining stories of his ebulli- 
 tions of wit, and he was certainly not only a gen- 
 erous contributor to the gaiety of the bar, but easily 
 surpassed all others in furnishing rollicking amuse- 
 ment, and good-natured humour to enliven the seri- 
 ousness of professional life, all of which have served 
 
A UNIQUE TRIO 339 
 
 to preserve his name and memory among the pleas- 
 ant traditions of the bar. 
 
 EDWIN JAMES, Q. C. 
 
 One of the first cases with which I had anything to 
 do was one in which Edwin James, Q. C, for- 
 merly an English barrister and Queen's Counsel of 
 conspicuous prominence, was engaged. It was a 
 case against the New York Central Railroad Com- 
 pany, which my father's firm represented, and it be- 
 came my duty to call upon Mr. James with reference 
 to it. His position at the English bar had been such 
 that I have no doubt that if he had pursued a con- 
 sistent career, high honours awaited him. 
 
 He was member of Parliament for Marylebone, 
 and it is said that the Solicitor-Generalship was 
 within his grasp, although some doubt was expressed 
 at the time as to whether, in view of opposition 
 which he was sure to encounter, it would have been 
 secured. He was a brilliant advocate but not a pro- 
 found lawyer. His professional income amounted 
 to about £7,000— ($35,000). 
 
 His practice, I am informed, was to a consider- 
 able extent of a somewhat sensational ' character, 
 frequently in connection with political events of the 
 day, relating more particularly to the Italian Revo- 
 lution. In fact, I think the English government en- 
 listed his services in connection with inquiries at 
 times officially, by commission, and sometimes un- 
 officially, into the state of affairs in Italy as bearing 
 upon the course to be pursued by it This will be 
 confirmed by referring to Trevelyan's interesting 
 
840 LANDMAllKS OF A liAWYERVS lilKIOTlM Ifl 
 
 book, "Tlio Making of lliily," ii\ wliicli tlio imiiKi of 
 Mdwin .InmcH, Q. C, is incliulcd iimoiiK otlior diH 
 l.iiiguialiod I'iUjifliBliinon coiiiiccUhI vvilli Hiicli iiKjiiiridH 
 on bolinir of l<lriKliiii<l. Tlic rciulcrH of liiilinii niid 
 l^^rciicli li'iRiory will nol, liuvo forgoLUMi i.\w coiiHpir 
 ncicH of (•omii OrHJiii iiiui Dr. licriiiird lo lake llie 
 lifo of Nnpolcoii, mid ilio sl.ory oT ilui OrHiiii boiiilt. 
 1(, wiiH Mr. ,)ariH*M wlio wiiH (•()miH(*l for OrHiiii in 
 iho oxl.raciition ])ro('(>(HrnigH in Mn^fliuid for IiIh dd 
 livery io ilio Froncb luiUioritios. He whh powimIchh 
 to Havo him, and notwiUiHliuiditiff Mki cn'orlH of l.lio 
 ^]mpn'HH of Fr}inc(^ nnd, indrcd, of Napoleon an woil, 
 to prnveid, it, tlio (*onnt Orsini met IiIh rai(^ on Uut 
 Hcaffold. Ilo waH more HnccenHrui wii.li Dr. Ber- 
 nard, wlio was approlionded for conHpiracy in h]uy; 
 land. On tlio trial hd liad tlin va.l(iaJ»l(^ aHHiHtaiici' of 
 Tlonry IFawkins (Lord lirampton) and noiwitli- 
 ntandinpf that tlio fads were apparenily eoncliiHive 
 agftinHt tho a,ecnH<'d, he wan aciiiiilled. l;ord 
 Brampton givofl in Ihh reniiniHcericen an inlercHl. 
 inpf account of tho proee(>diiifj:. 
 
 Tho story of Mr. Jarnofl' dopartiiro from Mnp;Ia,nd 
 and his ontranco at our bar is a. sad chapler of a 
 lawyor's downfall. I am credibly informed l.iia.t 
 it was occasioned by complieaiionH wiilei: arose in 
 pecuniary transactions connecif^d witli Lord Yar 
 boroufrh'n estate which, poRsibly, would have been 
 made the subject of charRos of a eriminal nature if 
 Mr. Janles had not taken his <l<!pa,rtiire froin Mng 
 land. At all events he was obliged to leave Eng- 
 land. Ho was, however, not without fricMids in New 
 York. Boforo the facts incid(int to his departure 
 
A UNIQUE TRIO 341 
 
 had become known, he applied to be admitted to the 
 New York bar without the formalities usually re- 
 quired, because of his eminent position. His cause 
 was espoused by a lawyer of prominence, Mr. Ed- 
 win W. Stoughton. Mr. Stoughton, I may remark 
 in passing, was a very picturesque and impressive 
 personage. He had a refined countenance, which, 
 without being in any way florid, was suffused by a 
 pinkish hue. His head was crowned with an abun- 
 dance of sUvery hair, which he never brushed 
 smooth, leaving it to stand out from his head in wild 
 profusion. He was exceedingly careful and of ex- 
 cellent taste in his dress, and his manners were of the 
 most courtly and elegant description. He occupied 
 a prominent position at the bar, and I am under the 
 impression that his prominence was chiefly gained 
 in patent cases. Shortly after my admission to the 
 bar, he was appointed Minister to Russia by Presi- 
 dent Hayes. On his return he did not seem to re- 
 gain his foothold in his profession. 
 
 Mr. Stoughton applied to the court on Mr, James' 
 behalf, but his application met with considerable op- 
 position, particularly from Daniel Lord, then one 
 of the leaders of the bar, but the court took, possibly, 
 a too favourable view of Mr. Stoughton 's applica- 
 tion and Mr. James was enrolled. Subsequent 
 events show that he should not have been admitted, 
 as the English court revoked his patent as Queen's 
 Counsel, and he was disbarred. But he was mistaken 
 in supposing that at our bar he could continue to 
 practice with success when he could not at his own. 
 When I called upon him concerning the case re- 
 
342 LANDMARKS OF A LAWYER'S LIFETIME 
 
 f erred to, I f oimd Hm sitting in his office alone and 
 unemployed, doing absolutely nothing, and al- 
 though I was not then acquainted with the cir- 
 cumstances of his advent in New York, the reason 
 became apparent subsequently for what impressed 
 me at the time as the spectacle of a distinguished 
 lawyer who had lost heart and hope. His career at 
 our bar was precarious at the best, and I have been 
 told that he eked out his slender resources by de- 
 livering addresses on Napoleon and the Italian rev- 
 olution, more particularly in some of the rural 
 communities in the neighbourhood of New York. 
 
 In the reminiscences of Lord Brampton, the 
 'Enery 'Orkins of the criminal bar in England, an 
 instance is given, in which Mr. James is an impor- 
 tant figure, of the danger of attempting to bolster 
 up an already good case by calling an additional 
 witness. Although he was responsible for the dis- 
 aster which overtook his client, owing to the course 
 he pursued, yet, in justice, it is due to him to say 
 that in all probability the brief furnished him by the 
 solicitor by whom he was retained, led him to feel 
 that it was incumbent upon him to call the witness 
 that destroyed him. 
 
 The case involved the probate of a will involving 
 an estate of £100,000, Mr. James appearing for the 
 proponents, and Messrs. Hawkins and Hannen (sub- 
 sequently Lord Hannen) for the contestants. The 
 latter were without any substantial evidence, and 
 if Mr. James, after proving the factum of the will 
 by the subscribing witnesses, had rested his case, 
 Mr. Hawkins had so little evidence that, as he states, 
 
A UNIQUE TRIO 343 
 
 he would probably have consented to a decree in 
 favour of the will. Notwithstanding the intimation 
 of the Court that further proof did not seem to be 
 required, Mr. James called an additional witness, 
 present at the time the will was made, and his testi- 
 mony on the direct examination seemed to leave 
 nothing to be desired. Mr. Hawkins had no fact 
 whatever upon which to base a cross-examination, 
 but he sparred for an opening, and to his own sur- 
 prise, and, quite likely, to the complete surprise of 
 Mr. James, it was made to appear by Mr. Hawkins' 
 skilful cross-examination that the will propounded 
 was prepared when the testatrix was seriously ill — 
 not from her own instructions, but from instructions 
 given by her husband and by the witness, to carry 
 out what they supposed her intentions were — and 
 that a former will, made by her understandingly, 
 had been destroyed by the witness, although he had 
 preserved a copy of it, the reason for the destruc- 
 tion of the original will and the preservation of the 
 copy not being satisfactorily accounted for. Inas- 
 much as the will offered was evidently the will of the 
 husband and of the witness rather than that of the 
 testatrix, the five hundred thousand dollar estate 
 which was at stake passed from Mr. James* clients 
 to those of Mr. Hawkins and, as Mr. Hawkins tells 
 us, Mr. Hannen, his associate, remarked to him: 
 "Brother Hawkins, your cross-examination I con- 
 sider worth, at the least, eighty thousand pounds." 
 While he was in London it is said that, notwith- 
 standing his large income, Mr. James was very dil- 
 atory in meeting his obligations, and it is related 
 
344 LANDMARKS OF A LAWYER'S LIFETIME 
 
 of him that his landlord who had waited long and 
 patiently for the payment of the rent which had ac- 
 crued, finally resorted to the expedient of writing 
 to Mr. James for his advice as to the course which 
 should be pursued, upon a state of facts precisely 
 similar to those existing between them, as though 
 it applied to some other tenant. But Mr. James 
 was not to be taken in by anything so transparent, 
 and he therefore replied somewhat as follows: 
 ' ' Dear Mr. Blank : In the case which you put to me, 
 my advice is that you exercise patience." 
 
 Lord Chief Justice Campbell, who was presiding 
 at a trial in which Mr. James was one of the lead- 
 ing counsel, had borne rather hard on Mr. James, 
 almost to the point of actual censure, but Lord 
 Campbell was an adroit politician, and recognizing 
 the fact that Mr. James was powerful in the council 
 of the party to which Lord Campbell belonged, he 
 sought in his summing up to the jury, to take away 
 the sting of his remark and placate Mr. James by 
 saying to the jury that in the course of the trial he 
 had felt obliged to make some observations which 
 had possibly offended his brother James, but that 
 he wanted to assure them that in making the re- 
 marks, he had no intention of indulging in anything 
 personal, and that he had not only the greatest re- 
 spect for Mr. James personally, but also for his well 
 known ability as one of the most distinguished mem- 
 bers of the bar. Whereat Mr. James rose excitedly 
 and exclaimed: "My Lud, I have been obliged to 
 bear with your censure, and I beg of you to spare me 
 your praise." 
 
A UNIQUE TRIO 845 
 
 His career at our bar ended by his return to Eng- 
 land, where be obtained employment as a clerk to 
 one of the Old Bailey solicitors, and be also made an 
 attempt to use bis professional abilities by estab- 
 lishing an office in New Bond Street, displaying the 
 sign "Edwin James, Jurisconsult," but his services 
 were not much used, and his last years were spent 
 in poverty. 
 
CHAPTER XVn 
 
 THE MODERN LAWYER 
 
 Two important factors have, I think, been influen- 
 tial in the production of the lawyer of to-day as 
 distinguished from the lawyer of forty years ago. 
 Up to that time, for over two centuries, the type of 
 lawyer, his office, education, training, professional 
 experience, and character of employment remained 
 very much the same. He was distinctly and purely 
 professional as distinguished from commercial. 
 There were practically two classes of lawyers — the 
 office lawyer engaged in real estate, conveyancing, 
 settlement of estates, drawing wills and contracts; 
 and the litigating lawyer, whose business was in 
 common law and commercial cases and equity suits, 
 with a sprinkling of actions for personal injuries. I 
 might add as a third class — the admiralty and pat- 
 ent lawyers. The bar of the City of New York was 
 essentially American, with a slight admixture of for- 
 eign elements, which, however, were a very small 
 percentage of the whole. 
 
 Following the year 1870 a transition began by the 
 influx of foreigners. While there had been pre- 
 viously a goodly number of Irish lawyers they be- 
 came more numerous, but their number increased by 
 no means in the same proportion as that of other 
 races. The Jewish lawyers seemed then to be few in 
 proportion to the whole, but their increase has been 
 
 346 
 
THE MODERN LAWYER 347 
 
 extraordinary, and almost overwlielming — so much 
 so as to make it appear that their nmnbers were 
 likely to predominate, while the introduction of their 
 characteristics and methods has made a deep impres- 
 sion upon the bar as it is to-day. Germans also, 
 but in fewer numbers, and Italians, in larger num- 
 bers than the Germans, have had their influence in 
 the transition which has taken place. The Jewish 
 lawyer has almost completely absorbed the large vol- 
 ume of commercial and bankruptcy practice; the 
 Jews, Irish and Germans are employed in large num- 
 bers in the prosecution of negligence cases, while 
 Italians are closely identified with the professional 
 work which the tremendously increasing numbers of 
 Italians has produced. These various elements, and 
 their varied characteristics, have to be taken into 
 account, not only as including acute and skilful, 
 as weU as at times highly accomplished lawyers, 
 adapted for practice accordingly, while their influ- 
 ence has been such as to give them an extensive 
 representation upon the bench. 
 
 There are few more remarkable instances of 
 change in the practice of the law than that which 
 has occurred within the past thirty years by the in- 
 cursion of the money-making power into the domain 
 of the lawj-er. It was hardly to be expected that the 
 possibilities of generous money returns from an ef- 
 fective organization in which business activity, in 
 one form or another, involved professional service 
 by the trained lawyer, should escape the avaricious 
 eyes of purely financial interests. The result is that 
 in several directions professional work, formerly 
 
348 LANDMARKS OF A LAWYER'S LIFETIME 
 
 distributed among lawyers, has been almost com- 
 pletely absorbed by corporations combining the 
 transaction of ordinary business with the perform- 
 ance of legal services incident to the same. No 
 code of ethics interferes with their active solicita- 
 tion of business, nor from advertising extensively 
 for the purpose of attracting patronage. They are 
 at liberty to employ agents to solicit business and to 
 hold out inducements, pecuniary and otherwise, and 
 in short to employ all sorts of commercial methods 
 to induce the placing of business in their charge. 
 
 The most striking instance of change in the prac- 
 tice of the law is that which relates to real estate. 
 Until thirty years ago, all of the business connected 
 with titles to real estate was transacted by lawyers, 
 and in every firm of considerable importance one 
 member of it, at least, devoted himself to the depart- 
 ment of real estate, and some offices were almost ex- 
 clusively occupied with it. About this time the 
 Title Guarantee Company appeared on the scene. 
 It aimed at the complete absorption, not only of the 
 business of the lawyer in examining the title, but 
 of the public offices such as the registers, county 
 clerks, and tax offices, in furnishing official searches 
 for matters of record in those offices affecting the 
 title to the property under examination. As a pio- 
 neer in this invasion of the lawyer's field of labour, 
 as well as that of the numerous searchers attached 
 to the public officers referred to, it had undoubtedly 
 a very rough pathway to pursue, not only to over- 
 come the opposition, but to surmount the obstacles 
 necessarily encountered. 
 
THE MODERN LAWYER 349 
 
 But I have no intention of writing the history of 
 the title companies in their conflict with public of- 
 ficials, and with the members of the bar engaged in 
 the practice of real estate law to secure a foot-hold. 
 Public officials did not fare badly, because their 
 "plants" were in most cases purchased at remuner- 
 ative figures, but lawyers engaged in the practice 
 of real estate law found that as the title companies 
 increased in efficiency and in number, the business 
 of examining titles was gradually absorbed to such 
 an extent that the offices which were formerly great 
 centers of activity in this direction were left practi- 
 cally unemployed. Probably four-fifths of the work 
 of this description is now performed by the title 
 insurance companies, who have attracted the con- 
 fidence of the public by a so-caUed insurance of the 
 title ; but how far this insurance insures is another 
 matter, owing to the practice of these companies to 
 except from the policy all doubtful points on which 
 the title might be attacked. The client turns over 
 his contract for purchase to the title company, whose 
 staff of meagerly-paid lawyers — whom the client 
 never sees — examine the title, and the liberal fees 
 go not to the lawyers but to the company and thence 
 in dividends to the stockholders. In the case of a 
 loan on bond and mortgage, the borrower goes direct 
 to the company, which lends him its own funds, re- 
 ceiving a large fee for examining the title, and then 
 sells the bond and mortgage to an investor, insur- 
 ing its collection for ten per cent of the income, and 
 whether insured or not, if it is not paid when due, 
 conducts the foreclosure proceedings, receiving in 
 
350 LANDMARKS OF A LAWYER'S LIFETIME 
 
 costs and allowances a further liberal compensa- 
 tion. It is said that as much as $10,000,000 is paid 
 in a siagle year to the title companies for what are 
 really legal services rendered often by inexperienced 
 or unsuccessful lawyers working on modest salaries. 
 
 These companies have also found lucrative em- 
 ployment in what is known as "condemnation pro- 
 ceedings," where a client's property is to be taken 
 by the city authorities for street or park purposes, 
 or for some other public improvement. In the an- 
 nual reports of these companies will be found, in- 
 cluded among the assets, the estimated value of con- 
 demnation proceeding contracts amounting to hun- 
 dreds of thousands of dollars. 
 
 These companies have from time to time, enlarged 
 the scope of their business operations, until they 
 now combine with their real estate business that of 
 the ordinary trust company, having power to act as 
 guardian, executor, trustee, receiver, etc., and it is 
 said that they offer to prepare wills without charge, 
 if appointed executor. 
 
 Another direction in which ordinary law busi- 
 ness has been absorbed is that of organizing cor- 
 porations for business purposes. It is within the 
 past quarter century that the laws of the State per- 
 mitted the organization of corporations for ordinary 
 business purposes. Before then corporations were 
 comparatively few, the purposes for which they 
 could be organized, unless under a special charter, 
 very limited, and most corporations were organized 
 under a special act of the legislature. Within 
 the time named this phase of business enterprise 
 
THE MODERN LAWYER 351 
 
 has undergone a complete and radical change. 
 Special charters are rarely applied for, and seldom 
 obtained, because of the enactment of general cor- 
 poration laws under which by filing a certificate of 
 incorporation complying with the law, a corporation 
 for the purpose specified in the certificate, comes 
 into existence. The purposes for which corpora- 
 tions may now be organized by not less than three 
 individuals has been so enlarged that it is possible 
 to organize a business corporation for almost any 
 form of legitimate business which the mind of man 
 can devise. It will be readily understood, there- 
 fore, that the organization of these corporations has 
 formed an important part of the lawyer's practice, 
 but, as in the case of real estate, corporations are 
 now organized for the purpose of not only organizing 
 corporations under the general laws of our own 
 State, but under the laws of other States, and attend 
 to various details of corporate management neces- 
 sary to be observed in complying with the laws under 
 which they are organized. These corporations un- 
 doubtedly provide a cheap and easy way of organiz- 
 ing a corporation, but it is not seldom the case that 
 the cheap and easy method has proved the most ex- 
 pensive in the long run. 
 
 Another instance of the absorption of the lawyer's 
 practice by corporations is that of the defence of 
 negligence cases. The multitude of cases to be de- 
 fended, growing out of personal injuries, furnished 
 a vast field of professional employment, but within 
 the last twenty years there has been an entirely new 
 development growing, on the one hand, out of the 
 
352 LANDMARKS OF A LAWYER'S LIFETIME 
 
 enactment of statues in the various States regulat- 
 ing the liability of employers, and imposing liability 
 under various labour laws, and, on the other hand, 
 out of the organization of a large number of com- 
 panies for the purpose of insuring employers against 
 liability to their employees and others under the 
 statutes referred to. These so-called employers lia- 
 bility laws and labour laws cover almost the en- 
 tire field of ordinary industry in connection with 
 the operation of railways, and factories, the con- 
 struction of buildings, and works of either public or 
 private enterprise, as well as in the operation of all 
 sorts of vehicles on the public thoroughfares. 
 
 The organization of employers ' liability insurance 
 companies to insure against liability for accidents 
 of every description, undertaking under their poli- 
 cies to defend the policy-holder in case of a claim 
 for damages, has resulted in the absorption by these 
 companies of the defense of negligence cases, and 
 has practically removed this class of business from 
 the sphere of ordinary law practice. It is neces- 
 sary of course, that these companies should appear 
 by an attorney, usually employed on a salary, but 
 the policy-holder who commits the defence of the 
 action brought against him after an injury has oc- 
 curred, to the company, as provided in the policy, 
 has little more to do with the matter, and has no 
 control whatever over the lawyer who will repre- 
 sent him on the trial, and is completely at the mercy 
 of the company in which he is insured. Inasmuch 
 as the company only undertakes to indemnify in the 
 amount specified in the policy, it not infrequently 
 
THE MODERN LAWYER 353 
 
 turns out that the defense is so ineffective that a 
 verdict is obtained for much more than the amount 
 of the policy, and the insured is bound to pay the ex- 
 cess. But, undoubtedly, employers of labour of all 
 sorts, and individuals engaged in hazardous occu- 
 pations find an insurance policy in one of these com- 
 panies a convenient, if not altogether satisfactory 
 method of self-protection. As the defense of ac- 
 tions for negligence must, under the terms of the 
 policy, be entrusted to the company, no matter how 
 competent the personal counsel of the individual in- 
 sured may be, the result is that the defense in four- 
 fifths of the negligence cases is under the control of 
 a half-a-dozen of the large accident and employers' 
 liability insurance companies. 
 
 Then again corporate interests of every descrip- 
 tion which have been the outgrowth of the develop- 
 ment of our natural resources have produced an 
 ever increasing number of lawyers whose business 
 is rarely in the courts and, frequently, scarcely in 
 line with regular professional employment. Their 
 business resembles that of promoters, lending them- 
 selves to schemes of every description likely to ex- 
 tract financial support from the too confiding pub- 
 lic, and proceeds through the process of corporate 
 organization, followed more often than not by re- 
 ceivership or bankruptcy proceedings, only to be 
 built up again by skilfully devised plans of re-or- 
 ganization ending — no one knows where. This is 
 a class of lawyers frequently found at the head, or 
 among the chief executive ofiicers, of railroads, trust 
 companies, banks, insurance companies and indus- 
 
354 LANDMARKS OF A LAWYER'S LIFETIME 
 
 trial corporations, or as partners in large private 
 banking houses. It may be stated that attached to 
 every one of these forms of business activity there 
 is a lawyer, under the title of vice-president, general 
 counsel or solicitor under a generous salary, or a 
 partner, who forms as much a part of the regular 
 staff of employees as any cashier or office boy. In 
 addition to these staff lawyers it is common practice 
 among important business interests to secure the 
 services of a lawyer, or firm of lawyers, upon an an- 
 nual retainer, which more often than not calls for a 
 maximum amount of service at a minimum rate of 
 compensation and under which the recipient becomes 
 little more than a paid employee, bound hand and 
 foot to the service of his employer. In the in- 
 stances referred to there is such a proprietary right 
 in the lawyer that he is almost completely deprived 
 of free moral agency and is open to at least the in- 
 ference that he is virtually owned and controlled 
 by the client he serves. 
 
 In fact many of the best-equipped lawyers of the 
 present day are to all intents and purposes owned 
 by the great corporate and individual interests they 
 represent, and while enormous fees result they are 
 dearly earned by the surrender of individual inde- 
 pendence. These influences have had a tendency to 
 diminish respect for the lawyer as such. 
 
 Eacial and commercial influences have in the pro- 
 cess of evolution brought about marked and impor- 
 tant changes in professional characteristics, methods 
 and standards, which combined with the larger pro- 
 fessional emolument to be derived from what may 
 
THE MODERN LAWYER 355 
 
 be termed " conmiercial activity," have resulted in 
 such, a transformation that the lawyer of forty 
 years ago would scarcely recognize his professional 
 brother of to-day. 
 
 The beginning of. the modem lawyer, so far as 
 his introduction to practice is concerned, is much the 
 same as it always has been. Like every other em- 
 ployment of lasting value there are the long years of 
 preparation and patient waiting, the long hours of 
 hard work, small compensation, and little pay, until a 
 foothold is secured to climb to professional eminence, 
 with the pecuniary reward which accompanies it. 
 
 It has been well said that the young lawyer needs 
 ' ' a brain of iron, a seat of lead, and a purse of gold 
 to buy books with," if he would attain success. In 
 this respect at least there has been no change. 
 
 In these days of strenuous competition, it is more 
 than ever important that the modern lawyer should 
 have a keen eye to recognize an opportunity when 
 he sees it. It has been wittily observed that a man's 
 success or failure depends on whether he seizes the 
 steed "opportunity" by the forelock or the fetlock. 
 No more instructive words upon this subject are, I 
 think, to be found than the expressive lines of the 
 late Senator Ingalls in his little poem entitled ' ' Op- 
 portunity." 
 
 Master of human destinies am I: 
 Fame, love and fortune on my footsteps wait, 
 Cities and fields I walk! I penetrate 
 Deserts and seas remote, and passing by 
 Hovel and mart and palace — soon or late 
 I knock unbidden once at every gate. 
 
356 LANDMAEKS OF A LAWYER'S LIFETIME 
 
 If sleeping, wake — if feasting, rise before 
 I turn away, it is the hour of fate. 
 And they who f oUow me reach every state 
 Mortals desire, and conquer every foe 
 Save death ! but those who doubt or hesitate, 
 Condemned to failure, penury and woe. 
 Seek me in vain and uselessly implore ; 
 I answer not, and I return no more. 
 
 But all the preparation and opportunity in the 
 world will amount to but little unless the young 
 modem lawyer is ready for anything and afraid of 
 nothing, with no hesitation as to assuming responsi- 
 bility, and ability to carry it after assuming it. 
 Then, although he cannot expect to be always suc- 
 cessful, he will have shown at least that he has acted 
 well his part. 
 
 In illustration of this, there was a case of con- 
 siderable importance among the few descending to 
 me on the death of my father, in which his clients, 
 in their generosity, were willing to give me a 
 trial by accepting my inadequate service as a sub- 
 stitute for my father's ability, experience and skill. 
 This particular case was entrusted to me upon the 
 understanding that I would engage able and exper- 
 ienced counsel, and I was led to retain that wonder- 
 fully warm-hearted, magnanimous and capable law- 
 yer. Judge John K. Porter, a former judge of the 
 Court of Appeals, to whom I gladly and reverently 
 acknowledge a debt of gratitude for early encour- 
 agement and assistance, which I can never repay, and 
 whose friendship, ripening- during a series of 
 years into intimacy, has been one of the greatest 
 
THE MODERN LAWYER 357 
 
 treasures of my memory. After I had retained him 
 in the early smnmer he left town upon his vacation. 
 I employed the interval until his return in prepar- 
 ing a hrief in the case, which was then on appeal 
 from a judgment against my clients, and submitted 
 it to him as embodying suggestions rather than as 
 a complete argument. After he had examined it 
 carefully I was not only greatly pleased at his ex- 
 pression of commendation, but more than surprised 
 at his suggestion that I, instead of he, should argue 
 the case. I could not accede to this, as I told him, 
 because my client expected his services and that it 
 was only because of his retainer that I was entrusted 
 with the case at all. He insisted, nevertheless, that 
 I must argue it personally, and volunteered to com- 
 municate with my clients, advising them that I should 
 be permitted to do so. I urged my inexperience and 
 lack of ability as compared with himself, and, in 
 fact, hesitated to assume the responsibility involved, 
 especially as there was very able opposing counsel. 
 The case was argued before the Court of Appeals 
 in Albany and among the judges, Chief Judge 
 Church, and Judges Allen, Peckham and Folger 
 were old friends of my father, and Judges Allen and 
 Peckham were his associates on the Supreme Court 
 bench. The arguments began on one day and were 
 continued on the day following. An incident took 
 place at the close of the first day which always has 
 been a treasured recollection of graciousness and 
 kindliness in distinguished men. The four judges 
 above named, on descending from the bench, came 
 to the table where I was standing and taking mj 
 
358 LANDMARKS OF A LAWYER'S LIFETIME 
 
 hand gave me words of welcome and friendly greet- 
 ing. The Court took the case under consideration 
 and on re-assembling in the fall they announced their 
 decision in favour of my clients, reversing the judg- 
 ment appealed from, and the result of assuming this 
 responsibility under the kindly encouragement of 
 Judge Porter was that I continued to represent my 
 clients — a large corporation — during the remainder 
 of my professional life. 
 
 The most valuable asset of a lawyer is, of course, 
 his experience, and in the course of preparation 
 various avenues of exceptional value present them- 
 selves. If it is as a court lawyer, it is not necessary 
 now as in former days to acquire the requisite court 
 experience through a long period of scattered and 
 perhaps infrequent cases, for the great public offices, 
 such as the Corporation Counsel, the United States 
 and State District Attorneys, the legal departments 
 of the various railroads, employers' liability insur- 
 ance, or financial corporations, or the litigation de- 
 partment of some large ofBce, will furnish abundant 
 means of acquiring valuable experience. 
 
 The modem lawyer generally favours practice in 
 a partnership and, I think, it may be generally ac- 
 cepted as true, that the volume of business which 
 can be transacted by a well-constituted partnership 
 will be at least one-third more than the combined 
 volume of business of each individual member of 
 that firm practicing separately, but the young mod- 
 em lawyer cannot consider too carefully the part- 
 nership into which he enters. Personal character- 
 istics, habits, social position, and moral tendencies 
 
THE MODERN LAWYER 359 
 
 are of the utmost importance as affecting inter- 
 course between partners quite as much so as profes- 
 sional attainments and the ability to practice law 
 successfully, for the latter without the former can- 
 not make a partnership truly successful. 
 
 In fact, partners are at each other's mercy, not 
 only with respect to the kind of business undertaken 
 and the method of conducting it and in dealing with 
 clients, but in their relations with each other. What 
 shall be said of the dishonest and treacherous part- 
 ner who pockets large fees for services rendered, at- 
 tempting to justify it on the ground that the ser- 
 vices were not in a law matter, carefully concealing, 
 however, their receipt from his co-partner and when 
 after the lapse of years the transaction is brought to 
 light, meets his co-partner's claim to share in them 
 with the plea of the statute of limitations. I knew 
 of such a case. 
 
 No greater mistake, then, can be made at the out- 
 set of one 's career, than to enter hastily and without 
 deliberation and careful consideration into a law 
 partnership. Some men are created to be good 
 partners, and to some a partnership relation is an 
 impossibility. This was, I think, the case of Mr. 
 Charles 'Conor, who, although so wonderful in 
 himself as a lawyer, was not suited to the practice 
 of law in partnership. On the other hand, Mr. 
 Evarts through nearly all his legal career was at 
 the head of a leading partnership, into which he 
 entered at the beginning of his practice and in which 
 he continued until its close. The same is true of 
 Mr. James C. Carter, who in the earliest years of 
 
860 LANDMARKS OP A LAWYER'S LIFETIME 
 
 Ms practice entered into partnership with. Henry J. 
 Scudder, and under the firm name of Scudder & 
 Carter continued until Mr. Scudder 's death, and 
 subsequently became the head of the firm of Carter 
 & Ledyard. There are numerous instances in New 
 York of these life-long partnerships, but after all, 
 they are exceptional and the partnership changes 
 which occur in the course of years are almost as 
 great as the changes of the figures in the constantly 
 turning kaleidoscope. 
 
 Whatever direction he may pursue the modem 
 lawyer will find separate departments in the great 
 offices, each identified with some special line of prac- 
 tice: corporations, real estate, litigations, surro- 
 gate proceedings, including wills and trusts, as 
 well as others, sometimes making the modern law 
 office resemble one of the large department stores, 
 where many distinct lines of business are conducted 
 under the same management. Then, for the real 
 estate lawyer, there are the title companies which 
 employ almost an army of lawyers ; and for the cor- 
 poration lawyer, corporations whose business it is 
 to organize and attend to the legal details of cor- 
 porate organization. 
 
 The ability to conduct a business negotiation suc- 
 cessfully has always been a highly esteemed qualifi- 
 cation of lawyers, but it was never more important 
 than at present. Any lawyer who has this gift can 
 make it the most important and remunerative part 
 of his practice. It is a wise old saying that "a good 
 settlement is better than a poor lawsuit." Busi- 
 ness men at the present day want skilful adjust- 
 
THE MODERN LAWYER 861 
 
 ment of their business controversies and complica- 
 tions. Litigation is so slow and expensive that it 
 does not pay, even with the most favourable result, 
 and this has led to arbitration committees in con- 
 nection with all the mercantile exchanges. Again 
 there are the large combinations and consolidations 
 of business interests and the re-organisations, with 
 conflicting sets of security holders which require 
 skilful handling by able negotiators. This has 
 given rise to a large array of able lawyers of this 
 particular class, some the most flourishing prac- 
 titioners in the profession. 
 
 The spirit of litigation as distinguished from the 
 spirit of settling is illustrated by an anecdote which 
 Judge Noah Davis related to me of Chief Judge 
 Church. "When," said he, "we were partners in 
 Albion, under the name of Church & Davis, Judge 
 Church was the litigator, while I was the settler, 
 and when Judge Church was leaving Albion to as- 
 sume the office of lieutenanl^govemor, to which he 
 had been elected, he was afraid that I, during his 
 absence, would settle all the cases we had in the of- 
 fice, and he took my hand and looking at me ear- 
 nestly, said, 'Now, Noah, I am going to leave you in 
 charge of the business, quench not the spirit.' " 
 
 One of the greatest defects in the young modem 
 lawyer is the absence of accomplishment in ora- 
 tory, "Why are the days of cultivation in oratory 
 departed? Why have no efforts been made to per- 
 petuate the oratorical gifts of Pinkney, Webster, 
 Eufus Choate, Emmet, Henry, Wirt, 'Conor and 
 Evarts ? The absence of training in oratory in our 
 
362 LANDMARKS OP A LAWYER'S LIFETIME 
 
 universities and colleges has brought about a pit- 
 iable state of affairs, so far as the modern young 
 lawyer is concerned, who instead of having been 
 educated to some degree of facility in public utter- 
 ance while in the formative period of youth when 
 elocution is best inculcated, is graduated from 
 his university and enters upon the practice of the 
 law hampered by the want of this training, and 
 forced to educate himself in it through a long course 
 of unpleasant experiences. It is undoubtedly true 
 that the day of long oratorical utterances before 
 the courts and juries has passed, but there can be 
 no doubt that the cultivation of an easy and forcible 
 style of public utterance furnishes a great asset to 
 the modern young lawyer in the opening of his 
 career. 
 
 Time is so valuable in disposing of the large 
 volmne of litigated business, the courts are so 
 crowded and the judges so overwhelmed by its 
 amount, and have consequently become so impatient 
 with long-winded utterances, that opportunities are 
 rarely afforded for the oratorical displays of former 
 days and it is consequently necessary to cultivate a 
 plain, direct and earnest style, and conciseness and 
 brevity in the presentation of even the most im- 
 portant cases. The man who can say the most good 
 sense and sound law in the shortest time has a de- 
 cided advantage. Juries are not much influenced 
 by outbursts of eloquence, and appellate tribunals 
 will not tolerate them. A tired and yawning jury 
 will not be likely to take the most favourable view 
 of an advocate's case, and when the attention of an 
 
THE MODERN LAWYER 363 
 
 appellate tribunal is lost and tlie judges begin to 
 converse in whispers or bury themselves in the 
 record, the oral argument is little more than a waste 
 of time. When you have lost attention you have 
 probably lost your case. Juries and judges have 
 become so accustomed to business-like methods that 
 they appreciate a simple and clear presentation of 
 the essential facts, each argument in its support 
 clearly stated in a few well conceived sentences, 
 with no baitings and no revertings to things inad- 
 vertently omitted, no fumbling of documents and no 
 reading from authorities. Such presentations have 
 characterised the foremost modem lawyers and, at 
 least one of the old time lawyers, Judge Benjamin 
 R. Curtis of Boston, was distinguished for the 
 brevity of his arguments. Mr. Justice Miller of the 
 Supreme Court of the United States, in his esti- 
 mate of Judge Curtis as the greatest lawyer of his 
 time, mentioned that in his most important cases 
 before the Supreme Court of the United States his 
 arguments rarely occupied more than forty min- 
 utes in their delivery. Judge Story and Chief 
 Judge Parsons seldom occupied over an hour, and 
 rarely over half an hour. The cultivation of such 
 a style as this will be likely to contribute as much 
 as anything else to the success of the modern law- 
 yer in the courts. 
 
 One of the most important arts of the court law- 
 yer is to know when to keep stUl, and be able to 
 exercise the self-command to do so. Many a case 
 has been won by paying due regard to the attitude 
 of the judge when he essays to combat the views of 
 
364 LANDMARKS OF A LAWYER'S LIFETIME 
 
 opposing counsel. The lawyer is indeed wanting in 
 tact and discretion who then assmnes any other 
 role than that of a spectator of the proceedings. 
 By all means let the judge do your arguing for you 
 if he is so inclined, and if in this way he indicates 
 that he is favourably disposed it is folly to attempt 
 to reinforce his views; even though they could 
 probably be reinforced to advantage, they do not 
 need reinforcement so long as he adheres to them. 
 The moment the Court appears favourably inclined 
 to your side of the case is the time to preserve dis- 
 creet silence. This is equally true with juries, and 
 if in the course of the trial there is the slightest 
 leaning in your favour then is the time to do as 
 little as possible by objections or long cross-exam- 
 inations, which can only have a tendency to lead the 
 court and jury to think that you consider it neces- 
 sary to strengthen your case when it needs no 
 strengthening, the only effect being to counteract 
 the favourable impression that has been made. 
 Many a case has been spoiled by an inability to 
 recognise the appropriate time to say nothing. 
 
 In a case which occurred sometime since, there 
 was an important issue as to whether service of a 
 certain process had been made on one of the parties. 
 If it had not been served the case was lost. The 
 burden of proving that it had not been served was 
 on the party making that claim. Here was where 
 the art of opposing counsel was exhibited. He 
 recognised that the claim was technical; that the 
 Court would look upon it with suspicion, and that it 
 is always exceedingly difficult to prove a negative 
 
THE MODERN LAWYER 365 
 
 in matters of that kind. He therefore participated 
 but three times in the course of the investigation. 
 The first was when, at the conclusion of the direct 
 examination of the process server the judge asked 
 him if he desired to cross-examine. He answered, 
 "No." Then the party making the claim of non- 
 service was called and gave his testimony denying 
 the service. At its conclusion the judge again asked 
 whether he desired to cross-examine, and he again 
 answered, "No." The judge then asked him 
 whether he wished to introduce any evidence to sup- 
 port the fact of service and he, concluding from the 
 attitude of the judge that he was not impressed with 
 the claim, he again answered, "No." These three 
 "noes" constituted the extent of his participation in 
 this somewhat lengthy proceeding and the i^esult 
 justified his action, the judge deciding immediately 
 that the service had been made. 
 
 When the time comes for the modern young law- 
 yer to launch out upon the sea of professional prac- 
 tice, his natural inclinations will determine at once 
 whether he will pursue his career in the courts or as 
 an ofiSce lawyer. And it may be that his predilections 
 in a particular direction will lead him to pursue some 
 specialty. To him, however, whose inclination is 
 toward a court practice, his limit will be as bound- 
 less as that of human experience, and his opportun- 
 ities for the display of intellectual acumen in the 
 preparation of cases for trial, of briefs for use in 
 the appellate tribunals, and the exercise of his gifts 
 in impressing his arguments upon strong minds, will 
 be confined only within the bounds of his usefulness 
 
366 LANDMARKS OF A LAWYER'S LIFETIME 
 
 to his clients and Ms natural ability. While it is 
 doubtless true that the memory of the lawyer is at 
 best fleeting, yet it will be preserved by the appear- 
 ance of his name ia the public reports of cases de- 
 cided by the courts by which his career may be fol- 
 lowed from his first appearance before these tri- 
 bunals, until he disappears to make his appearance 
 before his final Judge. 
 
 The tendency to specialise has been noticeable 
 since early times; for example, court lawyers and 
 office lawyers have always formed two classes, the 
 function of each resulting in a clear separation of 
 the one from the other which only in rare instances 
 would find a union in one individual. As a result 
 court lawyers and office lawyers have always been 
 recognised as two great instances of specialisation. 
 The country practitioner and the lawyer of moderate 
 practice, would naturally combine both functions, 
 but only under compulsion; the tendency is always 
 to separate the two whenever possible, and law part- 
 nerships everywhere are made up with this in view. 
 
 In England this separation has always existed in 
 the distinction between barrister and solicitor, and 
 even in the case of the barrister the line is sharply 
 drawn — ^more sharply formerly than now — between 
 barristers occupied in court in the trial and argu- 
 ment of causes and those who were special pleaders 
 or engaged in giving opinions, preparing wills, and 
 revising agreements and other important documents. 
 Then, too, there has always been in England, as well 
 as in this country, a distinct class of specialists 
 known as conveyancers, who confine themselves to 
 
THE MODERN LAWYER 367 
 
 business pertaining to the transfer of titles to real 
 estate and, as allied to this, the preparation o£ wills 
 and the settlement of the estates of decedents. Two 
 offices of especial prominence, engaged almost ex- 
 clusively in this class of business, were Wetmore & 
 Bowne and C. J. & E. DeWitt, and the volume of 
 titles to real estate which they examined and the 
 transfers which they superintended was very large. 
 The late Albon P. Man and Charles E. Strong were 
 also prominent examples of specialists in real es- 
 tate law, and every important firm had at least one 
 member who devoted himself exclusively to this 
 branch of practice. 
 
 Notwithstanding the great changes which have 
 occurred in the practice of real estate law by the ap- 
 pearance of the title companies, there still continues 
 to be a considerable class of real estate lawyers, 
 who may be so fortunate as to represent estates or 
 large financial institutions, or who are recognised 
 as specialists in real estate law in that compara- 
 tively new line of business, known as building loans. 
 
 Patents, trademarks and copyrights have always 
 been a special branch occupying the exclusive atten- 
 tion of such able practitioners as the late George 
 Gifford, George Harding, Edward N. Dickerson and 
 Frederick H. Betts. 
 
 The same is true of admiralty, around which con- 
 gregated lawyers of great distinction and a consid- 
 erable number of lesser lights, who were recognised 
 as the admiralty bar. Among these were the late 
 Edward H. Owen, Robert D. Benedict, Welcome R. 
 Beebe, Charles Donohue and Wilhelmus Mjmderse, 
 
368 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Commercial law embraced so many and widely 
 varied subjects that it was less of a specialty than 
 the others. There were certain law firms known as 
 specialists in that branch of the law, snch as the 
 very prominent firms of Martin & Smith and Barney, 
 Butler & Parsons, but commercial law engaged the 
 attention of almost every office to some extent. 
 These large commercial firms have almost entirely 
 disappeared and in their place has arisen a great 
 body of lawyers, who are occupied with commercial 
 affairs in connection with bankruptcy practice. 
 
 There is also growing up a large body of lawyers 
 whose specialty is the prosecution of cases of per- 
 sonal injury through negligence. A vast volume of 
 litigation of this class crowds the calendars of the 
 courts, occupying the exclusive attention of many 
 offices, while a large number of counsel of especial 
 experience in the trial of such cases do little else. 
 
 Special circumstances have also created special- 
 ties, such as in the cases growing out of the con- 
 struction of the elevated railroads, in which damage 
 to the owners of property abutting on the streets 
 were claimed for injury to their easement of light, 
 air and access. A considerable number of lawyers 
 specialised in the prosecution of them and thereby 
 amassed fortunes. From the Battery to Harlem, 
 along the line of the elevated roads, property owners 
 instituted actions in numbers almost incredible, re- 
 quiring, while they lasted, the exclusive attention of 
 at least one branch of the court. But these have 
 well nigh disappeared. 
 
 Proceedings relating to taxes, assessments, and 
 
THE MODERN LAWYER 369 
 
 street openings, involving teclinical knowledge of 
 statutory requirements, have also created a specialty 
 to which a considerable number of lawyers devote 
 themselves, usually under an agreement for a large 
 percentage of the tax or assessment vacated or re- 
 duced and of the award obtained in street opening 
 cases. This class of business, conducted on this 
 basis, has never been regarded with favour by the 
 better class of lawyers. 
 
 The criminal lawyer has occupied for many years 
 a sphere peculiarly his own. A great gulf seemed 
 to separate him from civil practice. Very few 
 practitioners who commanded a civil practice ever 
 appear in the criminal courts, while those who en- 
 gage in the practice of criminal law are rarely sought 
 for in civU practice unless perhaps in negligence or 
 divorce cases. While the general run of criminal 
 lawyers has not been men of very high repute, there 
 have been, naturally, exceptions, some of them of 
 great ability and high reputation. Among the lat- 
 ter were men like James T. Brady and John Gra- 
 ham, who were truly great criminal lawyers; and 
 William A. Beach and William Fullerton, both men 
 of distinction in civil practice, frequently appeared 
 in important criminal cases. Probably the most 
 notable, and perhaps notorious, among the firms of 
 criminal lawyers was that of Howe & Hummel who 
 commanded, in all probability, the most extensive 
 practice ever obtained by any one firm in the crim- 
 inal courts. Charles S. Spencer, Charles W. Brooke, 
 Samuel B. Garvin and John R. Fellows were also 
 eminent at the criminal bar. 
 
370 LANDMARKS OF A LAWYER'S LIFETIME 
 
 A numerous class of lawyers at the present day 
 may be described as "patronage lawyers." These 
 are they who subsist on the patronage dispensed by 
 the judges. They have little or no individual prac- 
 tice ; they are rarely seen in the argument of cases 
 or in connection with important office business ; they 
 are sometimes known as "judges' pets," and years 
 ago there was a reputable lawyer, who was so fre- 
 frequently appointed referee by a particular judge, 
 who finally resigned under severe adverse criticism, 
 that the first name of the appointee — G-ratz — be- 
 came a symbolic term which was applied to judicial 
 favourites by the expression — "He is the judge's 
 Gratz." This class of lawyers live upon refer- 
 ences, receiverships, commissionerships, and other 
 bits of judicial pabulum which fall from the judges' 
 tables. Many of these appointments are directly due 
 to political influence, and in most cases the appoint- 
 ees are of sufficient consequence to their political 
 party, or to some judge, to require that they should 
 be "taken care of." Of course dependence on this 
 form of professional employment is destructive of 
 an individual clientage, and whatever the fees, 
 which are sometimes large may be, they are dearly 
 earned by a surrender of independence of judicial 
 favour and by the obsequiousness which such depend- 
 ence involves. How can any lawyer who relies upon 
 the patronage of a judge for professional employ- 
 ment maintain a sturdy independence before him 
 and risk a charge of expressing the contempt which 
 on some occasions he may quite likely feel? 
 
 One of the most melancholy features of the mod- 
 
THE MODERN LAWYER 371 
 
 em lawyer is the frequency of disbarment procoed- 
 ings, resulting often in actual disbarment and, per- 
 haps oftener, in discipline involving suspension 
 from practice. This is not the place to furnish 
 statistics on this subject, but if any one will scan 
 the lists of decisions of the Appellate Division, in 
 the First Department, he will almost always find 
 proceedings affecting the conduct of attorneys. In 
 addition to this there are the Grievance committees 
 of the Association of the Bar and of the New York 
 County Lawyers' Association which are constantly 
 engaged, under the assistance of salaried attorneys 
 employed to do nothing else, in investigating charges 
 of misconduct preferred against lawyers — the func- 
 tion of these committees being to make a prelim- 
 inary investigation and if the result of the investi- 
 gation calls for it, to prefer charges in the name of 
 the Association against the attorney complained of. 
 The great number of matters of . this description 
 presented to the Grievance committee and to the 
 courts is almost incredible. This is one of the most 
 lamentable features of the present day practice of 
 the law, notwithstanding that the qualifications for 
 admission to the bar with respect to moral charac- 
 ter are more stringent than ever before. 
 
 These proceedings show that nothing is more im- 
 portant to lawyers of every class than to keep in 
 mind — particularly to those who are entrusted by 
 estates or individuals with moneys for investment, 
 and who collect the income for transmission to their 
 clients, and likewise to those receiving collections 
 in commercial matters — than the distinction be- 
 
372 LANDMAEKS OF A LAWYER'S LIFETIME 
 
 tween meum et tuum — the difference between what 
 belongs to oneself and that which belongs to another. 
 The constant handling of other people's money has 
 a tendency to dull that keenness of perception which 
 should always exist respecting the fiduciary or trust 
 relation. The failure to observe this closely has 
 led to the undoing of many a lawyer, and I could 
 cite offhand a considerable number of instances of 
 defalcation, followed by lasting disgrace, of men 
 who occupied high positions in the profession, and 
 unfortunately the annals of the Appellate Division 
 are full of disbarment proceedings which have re- 
 sulted from the failure to observe the meum et tuum 
 distinction. The mere possession of funds belong- 
 ing to clients offers a strong temptation in times of 
 financial stress to "borrow" for a few days, which 
 is in itself nothing more or less than a misappropria- 
 tion of trust funds and a clear breach of trust; it 
 matters not that the money is restored and that no 
 harm resulted. The undeniable fact that the "bor- 
 rowing" was in itself a breach of trust can never be 
 obliterated. It is well to distrust oneself, and many 
 a lawyer would have served himself if he had kept 
 constantly in mind the consequences of such misap- 
 propriation, accompanied with the wish that if he 
 ever should be guilty of such a breach of trust he 
 should be sent to states' prison. 
 
 The value of pursuing this course was illustrated 
 in my own experience by an occurrence in the dis- 
 tribution of a small estate of which I was executor. 
 Among the legacies was one to a church in the north 
 of Ireland. I paid this legacy in due course and the 
 
THE MODERN LAWYER 873 
 
 estate was wound up. What was my surprise, some 
 months later, to receive a very harsh letter from an 
 official of that church calling my attention to the 
 legacy and expressing surprise that it had not been 
 paid, and containing some rather severe animadver- 
 sions upon my conduct as executor, and concluding 
 by saying that they had placed the matter in the 
 hands of the Right Honourable Mr. S., a member of 
 the Privy Council, who was about to sail for Amer- 
 ica, and that he would call upon me and receive my 
 explanation, and demand payment of the amount. 
 I was greatly disturbed, and wondered what over- 
 sight could have occurred to bring such a situation 
 to pass. I lost no time in unearthing the papers in 
 the case, and examined my check book and my can- 
 celled checks, and, to my great satisfaction and com- 
 fort, I found among the returned checks the check 
 for the amount of the legacy with the endorsement 
 of the treasurer of the church, showing its deposit 
 and payment, and a letter acknowledging its receipt. 
 These documents I directed our bookkeeper to 
 place where at a moment's notice they could be pro- 
 duced. Thus fortified I calmly awaited the appear- 
 ance of the Right Honourable gentleman. In the 
 course of time he was announced and entered my 
 room. I gave him a very reserved and altogether 
 serious greeting, making no offer of the customary 
 hand-shaking and salutation, which I think rather 
 over-awed him instead of his Right Honourable pres- 
 ence over-awing me. I called for the papers and in 
 silence handed the check to him with the letter. As 
 he perused the check and letter, his face was a study 
 
374 LANDMARKS OF A LAWYER'S LIFETIME 
 
 in physiognomy ; lie scanned the signatures with the 
 utmost care, and finally acknowledged that a griev- 
 ous blunder had been made. I made no reply and 
 he asked me for a copy of the check and of the letter, 
 which I directed to be made, and when they were 
 ready he repeated his regret at the occurrence, and 
 the only remark which I made was ' ' that before such 
 a letter as had been sent to me had been written, 
 I should have supposed there would have been an in- 
 vestigation of the facts, but the letter having been 
 written it was my opinion that the time had come 
 for an ample apology." He was humble and con- 
 ciliatory and promised that one should be made, 
 which promise was performed. I learned after- 
 ward, through his brother residing here and whom 
 I knew, that he felt very keenly the embarrassing 
 position in which he had been placed. 
 
 Fortunate indeed is the young lawyer, who during 
 the period of preparation has learned to distinguish 
 with absolute clearness between right and wrong, 
 which many seem unable to do. Not only that right 
 and wrong which keeps him within the bounds of 
 legality, and protects him from disbarment or in- 
 dictment, but that right and wrong which is founded 
 upon the immutable principles of justice and fair 
 dealing which a sensitive conscience will approve. 
 
 Women are, as a general rule, undesirable clients, 
 although there are noteworthy exceptions. Like the 
 elder Weller, my advice is, "bevare of the vidders," 
 and I might add as well, the would-be divorcees. 
 The importance in dealing with them of having 
 everything in black and white was illustrated by a 
 
THE MODERN LAWYER 375 
 
 divorce case in my early days, the only one I ever 
 consented to take, in which I came very near get- 
 ting into considerable trouble. 
 
 A few years after I had begun practice, a poor 
 woman connected with one of our philanthropic in- 
 stitutions, applied to me to assist her in obtaining 
 a divorce from her husband, who had deserted her, 
 and a reasonable support for herself and her child. 
 He was a prosperous machinist, having an indepen- 
 dent business, and although the evidence of miscon- 
 duct was satisfactory, the wife was without any 
 evidence of his resources as a basis for awarding ali- 
 mony. A decree of divorce the husband would wel- 
 come, but not a provision for alimony, and this was 
 where the real contest arose. As she was helpless 
 and in poverty, I undertook her case, and by exer- 
 cising all the ingenuity of which I was capable, I was 
 finally enabled, with the co-operation of one of the 
 mercantile agency investigators, to get at the extent 
 of the husband's resources, something the wife would 
 never have been able to do. Armed with this evi- 
 dence, I applied for alimony and secured for her a 
 suitable allowance, together with a moderate allow- 
 ance for counsel fees. She was delighted with the 
 result, and it only remained to obtain a final decree 
 of divorce with an award of permanent alimony. 
 The divorce part was practically non-contested, and 
 it remained for me to again produce my evidence. 
 This was likely to be a matter of considerable diffi- 
 culty and I was greatly relieved, as well as gratified, 
 to receive a proposition not to contest the decree if 
 no increase of alimony was applied for. As I had 
 
376 LAJSTDMARKS OF A LAWYER'S LIFETIME 
 
 no evidence upon wMcli I could hope to secure an 
 increase, I communicated the proposition to my 
 client and she expressed satisfaction with it, and 
 authorized me to give the necessary consent. Here 
 is where I made a mistake. I should have had her 
 authorization in writing, but I suspected no after- 
 math, and proceeded to the entry of the decree. The 
 alimony was promptly paid and I congratulated my- 
 self upon having done a kindly act and won the grati- 
 tude of a deserving woman. 
 
 Sometime after, I received a request from her for 
 the papers which I held, and in my inexperience, un- 
 suspectingly, I sent them to her. What was my sur- 
 prise to learn from my opponent in the case, a lawyer 
 of very excellent standing, that a motion had been 
 made, on behalf of my former client, to open the de- 
 cree for alimony on the ground that the amount was 
 insufficient, and that my consent to the temporary 
 alimony being made permanent was without any au- 
 thority on her behalf, and I was confronted with the 
 affidavits of two individuals besides herself in sup- 
 port of her contention. I had no evidence except my 
 own unsupported statement and upon this, in the 
 form of an affidavit by me, the motion was opposed. 
 I felt greatly worried and anxious because of the 
 stigma which naturally attaches to a lawyer who had 
 acted in such a matter without the consent of his 
 client, and as there were three affidavits against one, 
 I awaited the result with a great deal of foreboding. 
 The late Justice George C. Barrett heard the mo- 
 tion, and if there ever was a judge of keen penetra- 
 tion and remarkable ability to dissect facts and ana- 
 
THE MODERN LAWYER 377 
 
 lyze the motives of conflicting statements, lie was 
 certainly a pastmaster in this respect. Imagine my 
 intense gratification and relief when, after holding 
 the motion under consideration for a time, he denied 
 it in an opinion of some length, in which he exposed 
 in a Imninous way, the falsity of the three affidavits 
 and supported my own in every particular. Since 
 then the idea of undertaking a divorce case has al- 
 ways given me a shudder, and I have consistently 
 rejected retainers in cases of this description. 
 
 The relation of the modem lawyer to his clients 
 presents a marked contrast to that of the lawyer of 
 older times. The old-time lawyer occupied a very 
 important and dignified position. With the clergy- 
 man, he was a man of intellectual culture and was 
 treated by everybody with deference and respect. 
 He was the leading personage in the community, 
 and was called upon on all occasions where intel- 
 lectual cultivation was necessary in producing an 
 appropriate oration or a written address or peti- 
 tion. Frequently his gifts were employed in an edi- 
 torial capacity. My father in his early days edited 
 the Wayne Sentinel, some bound volumes of which 
 are in my possession. Any one familiar with the old- 
 time prints will recognize the almost reverential 
 deference in which the lawyer was held, being often 
 represented as occupying a dais, an obsequious and 
 apparently awestruck client approaching him, the 
 lawyer's manner dignified and patronizing, and his 
 general demeanour indicating the conferring of a fa- 
 vour. 
 
 This relation between the lawyer and his client ex- 
 
S78 LANDMARKS OF A LAWYER'S LIFETIME 
 
 isted to a great degree until the early days of my 
 professional life, but since then it has undergone a 
 complete and marvelous change. The advent of the 
 captains of industry, the multi-millionaires, the 
 mighty corporations and the tremendous business 
 enterprises, with all the pride of wealth and luxury 
 which have followed in their train, have reversed 
 their relative positions, and the lawyer, with a more 
 cultivated intellect than ever and as worthy of defer- 
 ence and respect as formerly, is not treated with the 
 deference and respect of early days. This is 
 accounted for to some extent by the keen competi- 
 tion which exists in the profession, placing the law- 
 yer in the attitude of reaching out for retainers, 
 instead of being regarded as conferring a favour by 
 accepting them. The lawyer no longer receives the 
 obsequious client hat in hand, but is subject to the 
 beck and nod of the great financial magnate, who, 
 whenever he desires to see his lawyer, "sends for 
 him." It would never do for the lawyer who values 
 his practice to insist that his client should call upon 
 him, instead of he calling upon his client. 
 
 There is also noticeable, I think, a decline in man- 
 ners, especially in the courts, presenting a strik- 
 ing contrast with those of earlier days. There have 
 always been, undoubtedly, bullying and brow-beat- 
 ing lawyers, rude to their opponents and often 
 brutal to witnesses; but they were exceptions, and 
 their careers were not successful. The amenities 
 of the profession, ordinarily, were carefully ob- 
 served, and in England when the lawyers met at 
 circuit, and at our own county seats where the court 
 
THE MODEEN LAWYER 379 
 
 sessions were held, there was generally an abun- 
 dance of good-fellowship and friendly intercourse, 
 which, in the heat of litigation was not disturbed 
 by wrangling. In a numerous bar like that of New 
 York, where the mill of litigation is constantly 
 grinding, with a variety of native and foreign ele- 
 ments engaged, and little of the personal and 
 friendly intercourse outside the court room the tend- 
 ency to indulge in personalities, to engage in ran- 
 corous controversy, to criticise conduct, to attribute 
 unworthy motives, and to forget the amenities and 
 courtesies of professional life, seem to be more 
 noticeable, in consequence of which the tone of the 
 bar in litigation has been considerably lowered from 
 the high standard which formerly prevailed. 
 
 This might be illustrated by an incident which oc- 
 curred on the argument of a motion where one 
 of the lawyers was noted for his enjoyment of 
 the pleasures of the table, which had given him 
 the appearance of a rather overfed individual. 
 His opponent was arguing earnestly, when the for- 
 mer interrupted with the remark: "You should 
 have raised that point by demurrer." His oppo- 
 nent turned upon him with a savage scowl, and in- 
 quired: "What do you know about a demurrer? 
 It is nothing that you can eat." 
 
 But after all, it is proverbial that the lawyers 
 fight like demons in the court room, but leave the 
 court house arm in arm, in the intimacy of friend- 
 ship. Probably, this is as true to-day as it ever 
 was, and it is often the case that lawyers who have 
 had the hardest fight become the warmest friends, 
 
380 LANDMARKS OF A LAWYER'S LIFETIME 
 
 subject to the limitation, however, that it was honour- 
 able warfare, with legitimate weapons, and not an- 
 gry strife where personalities took the place of fair 
 argument. Whatever feeling may have been 
 aroused, it is a good time at the end of a litigation, 
 if not before, to seek an opportunity to remove it 
 by friendly advances, and when the moving cause 
 has disappeared this will not be difficult. 
 
 Sometimes, however, there is an ungenerous 
 spirit which repels even such advances. I knew of 
 one such instance among lawyers of excellent stand- 
 ing, who, instead of being alienated from each other 
 should have been good friends. One of them had 
 been a subscribing witness to a will, which became 
 the subject of a contest. The wiU was executed at 
 a time when the testator was in an enfeebled condi- 
 tion, and under circumstances which gave rise to a 
 strong i suspicion, at least, of undue influence. 
 When the lawyer became a subscribing witness he 
 must, of course, have appreciated that by doing so, 
 he would, quite likely, expose himself to a searching 
 cross-examination, and that the contestant's law- 
 yer would be at liberty to make such legitimate com- 
 ments upon his conduct as the facts developed might 
 call for, and which his duty to his client undoubt- 
 edly required him to make. The contest proceeded. 
 The lawyer who acted as subscribing witness was 
 called, and undoubtedly subjected to a severe ex- 
 amination. The facts developed justified criticism 
 of his conduct by counsel for the contestant, which, 
 however, did not proceed beyond the bounds of a 
 legitimate cross-examination, and of fair and hon- 
 
THE MODERN LAWYER 381 
 
 Durable criticism. After this the subscribing wit- 
 ness refused to give the contestant's lawyer the 
 slightest recognition. Now comes the sequel. At 
 the end of the litigation the contestants' counsel, 
 confirmed by his conscience that he had simply per- 
 formed a professional duty, sought out the lawyer 
 referred to, and assured him that there was nothing 
 personal in what he had done; that he had acted 
 according to his conscientious conviction as to his 
 professional duty; that he intended no personal 
 reflection, and that he hoped that their acquaintance 
 which had been disturbed, might be resumed upon 
 its old-time basis. What was his astonishment 
 and surprise to be repulsed with the remark: "I 
 prefer to leave our personal relations undisturbed," 
 and from that time on these two respectable law- 
 yers, who desired to do what was right, never rec- 
 ognised each other. This is undoubtedly an extreme 
 instance of an unforgiving spirit, and it is due to 
 the profession generally to say that they do not 
 often carry their differences outside the court room. 
 The modern lawyer enjoys advantages over the 
 lawyer who practiced before 1880, which should not 
 only be mentioned, but can scarcely be overesti- 
 mated. If the lawyers admitted since that date could 
 appreciate the diflBculties in earlier days in traveling 
 to and from their offices they would bless the day 
 of elevated roads and subways. For about twelve 
 years after my admission to the bar in 1870, Wall 
 Street could only be reached by the lumbering om- 
 nibus which used to run down Broadway and Wall 
 Street to the ferry, or by the surface cars which ran 
 
382 LANDMARKS OP A LAWYER'S LIFETIME 
 
 through Church Street and stopped at Barclay- 
 Street or the Sixth Avenue line, which terminated 
 at Vesey Street, or the Third and Fourth Avenue 
 lines which terminated at the City Hall. If the cars 
 were employed it was necessary at their terminals 
 to either take a stage or walk to Wall Street. It 
 would be difficult to portray, and more difficult to 
 realize, the inconvenience and discomforts of these 
 modes of conveyance. The fagged-out horses of 
 mid-summer and of stormy winter days, the slow 
 plodding, the dirty straw covering the floors of the 
 'buses and cars to keep one's feet warm, the entire 
 absence of ventilation and the almost, as it seemed, 
 interminable journey, had to be endured, of course, 
 and was endured because no better means of tran- 
 sit were known. With the construction of the 
 Broadway surface road the omnibus disappeared 
 and the convenience of travel was largely increased. 
 But what a blessing the elevated roads were! 
 With their advent travel to and fro was at once 
 transformed, and the journey twice a day became 
 a comfortable experience instead of a painful or- 
 deal. In later years the increased facilities fur- 
 nished by the subway, the brief moments of transit 
 between 42nd Street and Wall Street, and the pro- 
 tection from exposure to storm and torrid heat, 
 furnish a delightful contrast to the days of the 
 omnibus and surface cars. Sometimes I hear one 
 of my juniors complain of the vitiated air of the 
 subway, or some other objectionable feature more or 
 less imaginary, and I cannot but have a silent con- 
 tempt for his ingratitude, which he would surely ac- 
 
THE MODERN LAWYER 383 
 
 knowledge if lie could be translated for a time to the 
 days of the omnibus and street cars, and be com- 
 pelled to endure their horrors of a winter night in 
 the midst of a raging blizzard. 
 
CHAPTER XVIII 
 
 THE MODERN LAW OFFICE 
 
 Notable and important changes have taken place 
 during the past thirty years in the situation, office- 
 force and ordinary appliances of lawyers' offices. 
 The location and general characteristics of the mod- 
 ern office present a striking contrast to those of for- 
 mer years, brought about by improved methods of 
 building and the introduction of the elevator. 
 Musty offices in old-fashioned buildings, with few 
 conveniences, for the most part poorly lighted, with 
 little attention to cleanliness or internal arrange- 
 ment, have disappeared. The greater number of 
 lawyers' offices, up to 1880, were located on the 
 third floor of buildings, involving two flights of 
 stairs, and it was not rare to find one on the fourth 
 floor. The modem lawyer seeks light and sunny 
 offices in the highest stories of the so-called sky- 
 scrapers, where the atmosphere is pure and, the 
 light abundant, contributing generously to comfort 
 and good cheer, as well as to longevity. 
 
 Until about 1880, there was a quaint arrangement 
 of buildings at 41 and 43 Wall Street known as 
 Jauncey Court. In these buildings were to be found 
 some of the typical old-time offices. The published 
 prints of Wall Street as it was before the advent 
 of the modem sky-scraper show Jauncey Court in 
 all its quaintness. 
 
 384 
 
THE MODERN LAW OFFICE 385 
 
 The only remaining instance, so far as I know, of 
 the typical law office of earlier days, although 
 modernized somewhat in its office equipment, and 
 rendered attractive by cleanliness and an air of re- 
 finement, is the office of that highly reputable firm, 
 which began in the days of Peter DeWitt, the con- 
 tinuity of which has remained unbroken down to 
 the existing firm of DeWitt, Lockman & DeWitt, 
 whose offices during a period of nearly eighty years 
 have been at No. 88 Nassau Street. 
 
 One of the great disadvantages of the offices of ear- 
 lier times was absence of cleanliness. Unless there 
 was a janitor who would attend to this important 
 matter, little attention was paid to it. The conse- 
 quence was that except for semi-occasional house- 
 cleanings, there was an entire neglect of that daily 
 attention to the offices, which is now deemed so es- 
 sential. With the advent of the modern buildings, 
 each with its superintendent and corps of employes 
 to care for it, the careless and oft-times filthy con- 
 dition of the earlier law offices has entirely disap- 
 peared, and it is now a matter of course that after 
 the work of the day by the office force is suspended, 
 the corps of cleaning-women and the window clean- 
 ers take possession and put the offices in a reason- 
 ably cleanly condition. 
 
 The large modem law office resembles, in fact, 
 important commercial or banking offices, and in some 
 cases occupies as much as 10,000 square feet, so sub- 
 divided and arranged that there is none of the free- 
 dom of the office of former days, while access to 
 the partners, and the more important employes. 
 
386 LANDMARKS OF A LAWYER'S LIFETIME 
 
 is rendered difficult unless the object of one's visit 
 is fully explained to some lynx-eyed guardian. It 
 is by no means a place for informal and friendly 
 visits, being enveloped in an atmosphere of busi- 
 ness activity, creating an impression immistakably, 
 although often unintentionally, that anythiag but 
 business requires an apology for the time con- 
 sumed, and that it is an intrusion. 
 
 The rental of the modern law office would arouse 
 in the old-time lawyer open-eyed wonder. In earlier 
 days; $2,500 for a suite of offices was considered 
 a large rent, while at the present date, five times 
 that amount is not unusual and in some cases it is 
 nearly if not quite $20,000. 
 
 The systematic methods and recently devised ap- 
 pliances of modern offices are of such a character 
 that the practitioner before 1870 — or even before 
 1880 — would find himself in entirely new and unac- 
 customed surroundings unable to keep pace with 
 the modern practitioner, surrounded by his numer- 
 ous conveniences facilitating to a remarkable degree 
 the despatch of business. The slow and laborious 
 methods of former days consumed a vast amount 
 of time and imposed mechanical labour which mod- 
 ern methods have entirely eliminated. Documents 
 of all kinds were ia those days invariably written 
 out by the practitioner in long hand, involving not 
 only the time necessary to compose and write them, 
 but where duplicates were necessary, the labour of 
 copyists. 
 
 The ordinary work of this character, such as copy- 
 ing pleadings, affidavits and records on appeal, was 
 
THE MODERN LAW OFFICE 387 
 
 performed by the law students or minor clerks. It 
 was quill-driving, pure and simple, and when a vol- 
 uminous case on appeal had to be copied, there was 
 often a competition as to who would produce the 
 largest number of sheets of legal cap paper, legibly 
 written, in a single day. Those of us who engaged 
 in this duty will probably look back to the appal- 
 ling tasks of this kind with which we were pre- 
 sented, and to the reams of copies turned out, oft- 
 times with aching fingers and under great depres- 
 sion of spirits. 
 
 There was, however, a class of professional copy- 
 ists who performed the more important and skilled 
 work of copying legal documents. These consti- 
 tuted a regular and well-defined class of office serv- 
 ants, legible handwriting and the ability to decipher 
 illegible handwriting being the only qualifications 
 required. Many of them were strange characters, 
 often venerable in appearance and interesting to 
 behold, but with no ability beyond that required to 
 produce a legible copy of a documfent. Most of the 
 professional copyists were also skilled engrossers, 
 and whenever a will or agreement was to be copied, 
 a very beautiful specimen of their work would be 
 produced, with writing like copper-plate, the initial 
 word of each paragraph handsomely executed in 
 old English or German text. A considerable num- 
 ber, and in fact, I think, a large majority, were Eng- 
 lish or Irish who had acquired their skill and ex- 
 perience in the old country, and their work was 
 so automatic that the substance and purport of the 
 document would make no mental impression. 
 
388 LANDMARKS OF A LAWYER'S LIFETIME 
 
 With the advent of modern appliances this class 
 of employes has almost entirely disappeared, al- 
 though one may occasionally be found. In Eng- 
 land, however, where engrossed documents are much 
 more common at the present date, the copyist stUl re- 
 tains his place. 
 
 The pen has always been an important accessory 
 of the lawyer, and the goose-quill is the lawyer's 
 emblem. The goose-quill pen, the penknife and the 
 sand-box were once inseparable associates on the 
 lawyer's table. As late as my own early days at 
 the bar quill pens had not disappeared from the 
 New York courts, but were supplied by the city au- 
 thorities at the lawyers' tables in the court room. 
 Even now, the practitioner in the Supreme Court 
 of the United States will find on the tables in the 
 court room provided for the use of counsel, the old- 
 time quill pen, a forcible reminder of the days of 
 Marshall and Story. The abandonment of the quill 
 pen and the universal adoption of the steel pen 
 mark a very important improvement in the facil- 
 ities of the modern law ofiSce. The present genera- 
 tion scarcely stops to think, probably, that it is with- 
 in the memory of men now living that the goose- 
 quill was replaced by the steel pen and the sand-box 
 by blotting paper. It was not until 1660 that the 
 manufacture of steel pens in America began on any 
 large scale. Ten years later the variety of steel 
 pens was very small. But the evolution of the pen, 
 keeping pace with other improvements, has shown 
 a development of great importance. What was re- 
 garded as a somewhat expensive luxury in the ear- 
 
THE MODERN LAW OFFICE 889 
 
 lier days, has become almost a miracle of cheapness, 
 and pens of endless variety, suited to almost every 
 possible reqiiirement, are now to be had. Beside 
 the ordinary pen, modem requirements have evolved 
 the fountain pen and the stylographio pen, which 
 frequently find employment in the lawyer's affairs. 
 
 With the passing of the quill pen, and the sand- 
 box, there also passed from use the red tape so 
 familiar to old time lawyers, from which originated 
 the familiar expression "there was too much red 
 tape about it." It continued to be used for some 
 years after my admission to the bar in 1870, but it 
 gradually gave way to its more convenient substi- 
 tute, the rubber band, which was soon universally 
 adopted. I am quite confident that the rubber band 
 was not a part of the lawyer's outfit in 1870, and I 
 think it may safely be said that this addition to it 
 is a product of the last forty years. Like all other 
 good things, the rubber band, at first crude and im- 
 perfect, was, by an evolutionary process, perfected 
 in its material, and in the great variety of its shapes 
 and sizes, adapting it to every kind of use, and mak- 
 ing it one of the greatest conveniences of the mod- 
 em lawyer. 
 
 The first notable change in the production of law- 
 yers' documents was the process of manifolding, 
 which came into use about 1870. At first the copies 
 were produced in much the same method as that of 
 copying letters in a letter-book, by using copying 
 ink in making the first draft, then applying mois- 
 tened tissue paper which received the impression of 
 the original. In this simple and convenient way 
 
390 LANDMAEKS OF A LAWYER'S LIFETIME 
 
 several copies could be made, and where documents 
 were voluminous it was universally adopted. But, 
 like many other convenient and labour-saving de- 
 vices, the careless practitioner often produced 
 copies so blurred as to be scarcely legible, and this 
 led to the adoption of rules by the court which pro- 
 hibited the submission of such copies to the court, or 
 to public officers for the purpose of filing or certify- 
 ing. 
 
 Another process of manifolding was that of lith- 
 ography, by which was produced any number of 
 copies in a very attractive and perfect form, but the 
 expense of it was large, especially where only a few 
 copies were required, and being slower than other 
 means of manifolding, it did not come into common 
 and every-day use. 
 
 Other methods of manifolding were introduced 
 which, however, were speedily abandoned, owing 
 to the introduction of one of the most useful and 
 valuable inventions of modem times — the typewrit- 
 ing machine. The enormous number purchased, and 
 the vast industry connected with their production 
 and operation, and their presence in every office of 
 any consequence in the country, is the strongest tes- 
 timony to their practicability, and no office is com- 
 plete without one. In the early days, their work 
 was indeed crude and unsatisfactory and the freaks 
 of the machines, as well as of their operators, were 
 often annoying, but their convenience and practical 
 value was such that they marked an important step 
 in the production of accurate and legible documents, 
 while in the improvement of the machines and of 
 
THE MODERN LAW OFFICE 391 
 
 their operators, tlie quality of the work, and the 
 number of copies produced at a single stroke by the 
 operator, is found one of the greatest changes and 
 conveniences which the modern law office presents. 
 The skill with which these machines are operated is 
 often remarkable, a few of the most expert opera- 
 tors being able to take dictation direct on the ma- 
 chine almost as rapidly as if taken by a fairly com- 
 petent stenographer. 
 
 From this evolved another important adjunct of 
 the modern law office in the now indispensable sten- 
 ographer and typewriter. This individual occupies 
 very much the same relation to a large law office 
 that the skilful machine operator does in a factory. 
 The work is to a large extent purely mechanical. 
 UtiUzation of time and economy in service form 
 two of the most important considerations. Conse- 
 quently, comparatively recently, the phonograph 
 and the dictagraph have been introduced and are 
 gradually finding their way into law offices, and into 
 large mercantile establishments. They are a kind 
 of intermediate convenience between the employer 
 and the employe. Their use enables the employer 
 to dictate into the machine that which is to be put 
 into form upon the typewriter, and, the typewriter 
 is enabled by a transmission of the contents of the 
 record to embody the matter dictated in typewritten 
 form. 
 
 ■ It is particularly valuable to the court stenogra- 
 pher in the course of cases on trial, where the counsel 
 desire from day to day a transcript of the testi- 
 mony. By using it the stenographer is able after 
 
392 LANDMARKS OP A LAWYER'S LIFETIME 
 
 the court adjourns to read from Ms notes into the 
 phonograph his record of the day's proceedings, and 
 the typewriter in the course of the evening will be 
 able to furnish it in typewritten form ready to be 
 supplied to counsel, before the opening of the Court 
 on the following morning. 
 
 The stenographer, as such, in former days was a 
 rare and unfamiliar person. When it is considered 
 that official stenographers for the courts were not 
 authorized by statute until 1865, their employment 
 before that time in the ordinary work of the law 
 office was unusual and exceptional. Until then the 
 judges universally took the notes of the testimony 
 in longhand, and no such thing as the stenographer's 
 minutes of the testimony was known. I have in my 
 library the volumes of court notes taken by my 
 father when he was on the bench and which con- 
 stituted the record in the cases. In my own early 
 days, when a clerk in the office of my father, who 
 frequently served as referee to hear and determine 
 cases, I acted as amanuensis and took down in long- 
 hand the testimony of the witnesses as it fell from 
 their lips. In the course of time I became quite an 
 expert, able to record the testimony with consider- 
 able rapidity, and the experience thus acquired was 
 of great value subsequently, during trials of cases 
 in court, in enabling me to make notes of the testi- 
 mony as it proceeded. Among all the cases in which 
 he sat as referee, I know of few in which the testi- 
 mony was taken by a stenographer. These now anti- 
 quated methods have all been revolutionized. The 
 stenographer is a necessary adjunct of every well 
 
THE MODERN LAW OFFICE 393 
 
 regulated office, and stenography has become a 
 great industry. Schools of stenography turn out 
 each year an army for use, not only in law offices, 
 but in every department of business activity where 
 correspondence to any extent is conducted. Sten- 
 ography and typewriting being almost invariably 
 combined in the same individual, it may safely be 
 said that with the use of a competent stenographer 
 and typewriter the busy lawyer is capable of pro- 
 ducing in one day as much work as he could have 
 formerly produced in three; his work will be of 
 equally high quality, and his documents much more 
 legible and accurate. But, with the advent of sten- 
 ography and typewriting, tendency to greater dif- 
 fuseness in correspondence and in legal documents 
 generally has manifested itself, and the concise and 
 pithy style of former days is fast disappearing. 
 Except in the writing of wills, where impossibility 
 of making changes by any process not easily discov- 
 erable must be secured, long-hand documents are re- 
 garded as almost a curiosity. 
 
 In the case of male stenographers, I would not 
 say that the tendency is to rise from stenography 
 to admission to practice as a lawyer, but it is never- 
 theless true that the ranks of lawyers have been re- 
 cruited in many instances from the stenographers, 
 and in some instances they have attained great dis- 
 tinction at the bar. I have in mind one now living, 
 who is a striking instance of humble beginning as a 
 stenographer, and subsequently of distinguished 
 success as a lawyer. When I first knew him as a 
 stenographer employed by one of our most reput- 
 
394 LANDMARKS OF A LAWYER'S LIFETIME 
 
 able firms, lie was identified with a member of that 
 firm who had charge of the litigation of the of- 
 fice. Naturally this young and ambitious stenog- 
 rapher was impressed with the higher calliag of 
 the lawyer, and not only qualified himself for ad- 
 mission to the bar, but, by successive steps, gaining 
 admission as a partner in the firm by whom he had 
 been employed, and rising from the position of jun- 
 ior to that of senior, he has for many years been 
 borne on the full tide of professional success. 
 
 Many years ago one of the regular court stenog- 
 raphers, James B. Sheridan, secured a nomina- 
 tion to a judgeship in the Marine Court (now the 
 City Court) and, it being a time of political up- 
 heaval, the court stenographer became the judge of 
 the court and served acceptably during the six years 
 of his term and then resumed his place at the court 
 stenographer's desk. 
 
 It is not, however, always to the advantage of the 
 stenographer that he should forsake the pecuniary 
 rewards of stenography for the more uncertain re- 
 wards of a lawyer, for accomplished stenographers 
 who have official positions in the courts, or those 
 closely identified with some busy referee, earn an 
 income better than that of most lawyers in fair prac- 
 tice. The court stenographers have, in addition to 
 their salaries, their stenographic fees at a uniform 
 rate for writing out the record of the trial in every 
 case in which an appeal is taken, and the referee's 
 stenographer receives at the rate of thirty-five cents 
 a folio of one hundred words for three copies of the 
 testimony, and frequently the fees of the stenog- 
 
THE MODERN LAW OFFICE 395 
 
 rapher amount to nearly as mucli as the fees of 
 the referee. Under these circumstances, successful 
 stenographers may well be content with the pecun- 
 iary result. But, it must be added, that thereby the 
 cost of litigation in the courts or before referees 
 has been largely increased, and has become ex- 
 ceedingly burdensome. 
 
 Stenography and typewriting have also introduced 
 an important change in the personnel of the modern 
 law office. It would, I think, be safe to say that be- 
 fore 1870 no office could be foxmd in the city of New 
 York in which a woman was employed as a part of 
 the working force. The advent of typewriting and 
 stenography, the attractive employment it affords, 
 the comparatively short business hours, the liberal 
 salaries paid — from $8 to $10 weekly to a beginner, 
 to as high as $20 and sometimes, but rarely, $30 a 
 week to the more experienced — have led large num- 
 bers of young women to qualify themselves for 
 these positions. Like the typewriting machine, the 
 woman stenographer is found in almost every office, 
 and it must be said that where a good fundamental 
 knowledge of English grammar and punctuation ex- 
 ists, the work produced by an intelligent woman is 
 of the highest quality. Where, however, this funda- 
 mental knowledge is lacking, woman, as in other in- 
 stances, proves to be a delusion and a snare. 
 
 While it is undoubtedly true that an office takes 
 its tone largely from the character of the employer, 
 my experience is that the presence of a right-think- 
 ing and dignified young woman in an office tends to 
 elevate its tone by the restraining influence of her 
 
396 LAXDMAEKS OF A LAWYER'S LIFETIME 
 
 presence upon the clerks and students, preventing 
 the use of language which might otherwise escape, 
 and actions which might be open to criticism. Un- 
 doubtedly there is a vast difference in the influence 
 they exert, but in. offices where self-respect and 
 character count for something, care being exercised 
 in their selection, the result is an influence of very 
 great value. 
 
 My experience with the telephone began in 1884, 
 and since then methods of transacting law business 
 have been completely revolutionized by its general 
 use. Its introduction in law offices was slow, and 
 its service at first very imperfect, but its value as a 
 labour-saving device, dispensing with long-hand cor- 
 respondence and calls in person, admitting of inter- 
 views at a moment's notice, each party sitting in his 
 own office, at times in different cities, has been in- 
 estimable, and when communications with clients are 
 taken into consideration, and the ease with which 
 information from the courts as to the state of the 
 calendars is procured, dispensing with messengers 
 to notify parties and secure the attendance of wit- 
 nesses and watching court calendars are considered, 
 its importance and usefulness cannot be over-esti- 
 mated. The number of messages for which some of 
 the larger offices contract run up to almost, if not 
 quite, 100,000 per annum. 
 
 The amount of time consumed in the earliest days 
 in attendance upon courts while waiting for cases 
 to be called was very great. When a case appeared 
 upon the calendar the only thing to be done by 
 counsel, was to be present at the call of the calendar 
 
THE MODERN LAW OFFICE 397 
 
 and patiently wait until the case was reached. 
 This involved at times waiting for half a day or 
 longer in almost momentary expectation of the case 
 being called, not only involving absence from the 
 ofl&ce but preventing the utilization of time in other 
 directions. Lawyers of the present day cannot ap- 
 preciate the inconvenience and annoyance this 
 caused. The introduction of modem appliances has 
 transformed all this, and counsel can now, without 
 risk, direct a subordinate to attend the call of the 
 calendar and watch the court proceedings, and half 
 an hour or so before his presence becomes neces- 
 sary he can be called by telephone; meanwhile his 
 time has been profitably employed in other direc- 
 tions. This marks one of the greatest changes 
 which has taken place in modem times in the work 
 of the court lawyers. 
 
 This important improvement is a boon not only 
 to the lawyers, but also applies to business men 
 who in earlier days were subjected to great losses, 
 in addition to annoyance and inconvenience, by be- 
 ing compelled to spend time as parties or witnesses 
 in awaiting the trial of cases. A party whose pres- 
 ence was necessary in the early stages of the case, or 
 a witness in attendance under subpoena, was com- 
 pelled to attend day after day and waste hour after 
 hour. This was a great hardship, particularly in 
 the case of a witness who had no interest whatever 
 in the controversy. 
 
 But, with all its convenience the telephone has, I 
 think, worked to the detriment of the profession in 
 one respect — their personal relations. Before the 
 
398 LANDMARKS OF A LAWYER'S LIFETIME 
 
 days of the telephone there was personal inter- 
 course between the members of the profession, which 
 tended to promote good feeling and good fellowship. 
 There were the calls upon each other in matters of 
 business, and when the business was finished a 
 pleasant chat upon outside affairs would oftentimes 
 follow; there was the cordiality of greetings; the 
 face to face intercourse ; the more familiar acquaint- 
 ance, which promoted a feeling of brotherhood. 
 All this has practically disappeared. Personal 
 calls are comparatively infrequent; a hurried con- 
 versation by telephone transacts the immediate 
 business in hand, and the personal quality is entirely 
 eliminated. The result is that in some instances an 
 opponent is absolutely unknown except over the 
 telephone. You know the sound of his voice, but 
 if you were to meet him on the street you would 
 be unable to recognize him, and while in the earlier 
 days a comparatively intimate acquaintance might 
 have been formed with an opponent, it may now 
 happen that you will have no personal acquaintance 
 with him until an actual meeting in court to try the 
 case. 
 
 This absence of personal intercourse is also ob- 
 servable in the case of clients, with whom a meeting 
 in one 's office was not only agreeable, but had a ten- 
 dency to cement the relationship of lawyer and 
 client and bind more closely the ties of personal 
 friendship. It now frequently happens that while 
 actively employed for a client, personal intercourse 
 will rarely occur, and there has come to be with 
 clients as well as with one's professional opponents. 
 
THE MODERN LAW OFFICE 399 
 
 a destruction of the personal and intimate relation, 
 leaving only that which is purely professional. 
 
 Most important contributions to the comfort of 
 the modem lawyer are the electrical appliances, 
 which have transformed dimly lighted offices, and 
 systems of electrical desk attachments, such as bells 
 and telephones, permitting communication with the 
 working force with ease and rapidity, and enabling 
 partners to communicate with each other without the 
 necessity of leaving their respective rooms. 
 
 The improved office furniture, such as roll-top 
 desks, the newly devised flat-top desks with their 
 spacious drawers, the disappearance of the old-time 
 pigeon holes, the advent of modern cases for filing 
 papers, the improved systems for keeping papers 
 and records, reducing to a minimum the inconven- 
 iences arising from mislaying documents or filing 
 them carelessly, have also greatly contributed to 
 the comfort and ease with which business is trans- 
 acted. 
 
 The printing press has also had a remarkable in- 
 fluence on the work of the modem office and of the 
 courts. There are few directions in which improve- 
 ments in a known art, and its practical application 
 to every day affairs have been greater than in the 
 art of printing, as applied to the law. Even in such 
 a dignified tribunal as the Supreme Court of the 
 United States, and during the halcyon days of Chief 
 Justice Marshall and Mr. Justice Story and of Pink- 
 ney, "Webster, Wirt and Ogden, when the great con- 
 stitutional questions were argued, the method 
 adopted was to pass the written record around from 
 
400 LANDMARKS OF A LAWYER'S LIFETIME 
 
 justice to justice ; there was not even a duplication of 
 copies. The advent of the printed record put an 
 end to this cumbersome method, one of the earliest 
 instances of its appearance being in the case of 
 Dandridge against the United States (12 Wheat 64) 
 in 1826, concerning which Daniel Webster wrote as 
 a matter of news to Nicholas Biddle, that in that 
 case they were to have a printed record. While it 
 is true that in February, 1821, a rule was adopted 
 providing for the printing of the briefs of counsel, 
 it was not until January, 1831, that the court adopted 
 the rule that "in all cases the clerk shall have fifteen 
 copies of the records printed for the court, pro- 
 vided the government will admit the item in the 
 expenses of the court. ' ' Evidently, the art of print- 
 ing was very slow in making its way into the prac- 
 tical working of the courts. 
 
 As late as 1834 there was no rule requiring the 
 use of printed records in the courts of New York 
 State, but, upon the reorganization of the courts 
 and the adoption of the Code in 1846, the Supreme 
 Court rules provided that printed copies of the 
 record should be furnished. Anyone who takes the 
 trouble to examine these printed records during the 
 succeeding twenty years, will notice frequently the 
 crude and imperfect execution of the printed page, 
 and the wretched paper used, being, in most in- 
 stances, the work of the village printer in the "back- 
 woods" counties of the State. The expense of 
 printing was, for many years, considerable, about 
 $1.25 a page for twenty-five copies and, when the 
 record was voluminous, this expense was a serious 
 
THE MODERN LAW OFFICE 401 
 
 burden upon the litigants; but with the advent of 
 other improvements in the law, the art of printing 
 kept pace, and the sharp, clear type, the excellent 
 paper and the broad margined page of later years 
 have been luxuries of the law, lightening the burden 
 of the lawyer and the judge, while the expense of 
 furnishing thirty copies has fallen as low as fifty 
 cents a page. 
 
 But it is not only in the printing records for the 
 use of the courts that the employment of the print- 
 ing press has become an important adjunct of the 
 modem office, for in the numerous instances where 
 considerable numbers of copies of voluminous docu- 
 ments are required, it is constantly employed. 
 Nothing can present a sharper contrast between the 
 methods of the old time, and those of the modem 
 lawyer, than in the abolition of the slow and la- 
 borious work of longhand written documents, by the 
 adaptation of the art of printing to the lawyers ' of- 
 fices and the courts. 
 
 There must also be included as among the great- 
 est office facilities in disposing of cases requiring 
 careful investigation the various compilations in 
 the form of digests, encyclopedias, tables of cases, 
 indices of citations, books of practice and forms of 
 pleadings and other legal documents. One of 
 the most important aids in this direction, which 
 for many years was indispensable to every 
 lawyer, was Abbott's Digest, which is continued to 
 the present day. This was the first complete and 
 satisfactory digest issued since the time of Bacon's 
 Abridgement and Cruises' and Clinton's Digests. 
 
402 LANDMARKS OF A LAWYER'S LIFETIME 
 
 In tlie preface of Abbott's Digest allusion is made to 
 the number of existing reports in this State, which, 
 at the time it was first issued in 1860, had reached 
 the number of 200. Up to that time many lawyers 
 made their own digest, using an ordinary blank book 
 in which they noted decisions of importance con- 
 tained in the reports. Undoubtedly Abbott's Di- 
 gest supplied a long felt want, but how much more 
 are such works needed at the present day, when the 
 volumes of State reports in New York have reached 
 the number of 1600, and the reports of the Supreme 
 Court of the United States and of the various Cir- 
 cuit and District Courts contained in the Federal 
 Eeporter number about 400. When investigation 
 is made of reported decisions of other States, it 
 would be an impossible task to examine them care- 
 fully without the most complete assistance of this 
 description. But even Abbott's Digest has lost 
 much of its earlier importance by reason of the issu- 
 ance of the two encyclopedias known as "The Amer- 
 ican and English Encyclopedia of Law," and "the 
 Cyclopedia of Law" which treat each subject sep- 
 arately, and generally with considerable exhaustive- 
 ness, and collate the decisions of the various states 
 applicable thereto. 
 
 The reports also contain an index to every case 
 cited in the opinions, and further assistance is given 
 in this direction by volumes containing tables of 
 cases affirmed, reversed, modified or distinguished, 
 enabling the practitioner to ascertain on the instant 
 the value of any particular case contained in the re- 
 ports. 
 
THE MODERN LAW OFFICE 403 
 
 A further indispensable aid is a series of volumes 
 issued quarterly containing a reference to every re- 
 ported case, informing the practitioner at a glance 
 where any particular case has been cited as an au- 
 thority in any other case. 
 
 These are genuine tools of the trade without 
 which the modern law office would be incomplete, and 
 the modem lawyer helpless. As such, I suppose they 
 could be regarded in the same light that a Eight 
 Eeverend Bishop, returning from Europe, regarded 
 certain expensive vestments which he had purchased 
 for use in church worship, when he claimed for them 
 exemption from the payment of duties for the rea- 
 son that they were "tools of his trade." 
 
 The elevator is, of course, an important modem 
 accessory to the lawyer's office, and a very conven- 
 ient one as well, but while it dispenses with the 
 necessity of climbing at least two and some- 
 times three flights of stairs, as was formerly 
 necessary, it has abolished that enforced physical 
 exercise which lawyers were obliged to take, and 
 which was, I am sure, conducive to health. It has 
 also involved risks and dangers which were for- 
 merly unknown, and has introduced a class of indi- 
 viduals within the last thirty years — the elevator- 
 boy, on whom depend the safety as well as much of 
 the comfort of a lawyer and his clients. When my 
 offices were in the same building with those of the 
 late Francis N. Bangs, I used to take elevator trips 
 to and fro frequently in his company. Like all 
 warm-hearted and unassuming men of eminence he 
 was simple and unostentatious, and inclined to im- 
 
404 LANDMARKS OP A LAWYER'S LIFETIME 
 
 bend with his inferiors. There were two elevators 
 in the building, in charge of two excellent young 
 men, who pursued their monotonous employment, 
 one of them during almost my entire tenancy of six- 
 teen years, and the other during the whole of it. Mr. 
 Bangs dubbed one of them the "Duke of Hoist- 'em- 
 up" and the other the "Count of Let- 'em-down. " 
 Sometimes a hurried lawyer, during his trips on the 
 elevator, will take a hasty glance at a law document. 
 On one of these occasions, a bystander remarked: 
 "You are evidently practising law in the elevator. 
 How do you find it?" "Oh," was the prompt re- 
 ply, "it has its ups and its downs." 
 
 One of the most valuable and useful facilities in 
 the routine of practice in the modem law office is 
 that afforded within the past twenty-five years by 
 corporations organised for the purpose of becoming 
 sureties on undertakings on appeal, attachment, in- 
 junction, replevin, and arrest, as well as on bonds for 
 receivers, trustees, executors, administrators, guard- 
 ians and others in the course of legal proceedings. 
 It was about 1884 that this line of business began 
 to be pursued by corporations, on the basis of a 
 fixed annual premium on each undertaking or bond. 
 Until that time it was essential, whenever security 
 of this description was required, to provide in most 
 cases two sureties, owners of real estate, able to 
 qualify as owners of property double in value the 
 amount of the bond required. This was in most ' 
 cases a very serious and difficult matter, involving 
 on the part of the client an application to friends 
 or business associates to act as sureties. Those 
 
THE MODERN LAW OFFICE 405 
 
 willing to act as such, if free to do so, were often 
 precluded by express provisions in partnership ar- 
 ticles from entering into obligations of this kind, 
 while others were naturally reluctant to jeopardise 
 their property as a mere act of friendship or busi- 
 ness accommodation, especially in view of the fact 
 that the sureties were required to submit themselves 
 in many cases to a rigid examination as to their 
 property holdings, by the attorney for the adverse 
 party, in order to satisfy the Court as to their suffi- 
 ciency. The search for sureties was often a long 
 one, attended with much embarrassment and per- 
 plexity to the client and his lawyer, and frequently 
 resulted in the greatest hardship. It was a wonder- 
 ful advance, therefore, in legal procedure, and in 
 furtherance of justice, when surety corporations 
 were organised, but even after their organisation, 
 it was by no means an easy process to induce the 
 profession and the courts to recognise and adopt 
 this new method of providing bonds with sureties. 
 It was necessary not only to procure legislation per- 
 mitting this form of security, but dispensing with 
 the examination of the surety company as to its 
 property qualifications by the attorney for the ad- 
 verse party. "Without proceeding through the var- 
 ious steps involved in consummating this object, it 
 is sufficient to say that all obstacles were in time 
 surmoimted by appropriate legislation, providing 
 for a single examination of the surety company as to 
 assets by the State authorities as a condition of being 
 permitted to transact this business, and a system of 
 annual reports to the proper State department, fol- 
 
406 LANDMARKS OF A LAWYER'S LIFETIME 
 
 lowed by action by the courts approving the suffi- 
 ciency of each company to act as surety, and tbere 
 was thus introduced a simple and effective way of 
 furnishing security without inconvenience, embar- 
 rassment or delay. The large volume of business 
 transacted by these corporations, sanctioned by legis- 
 lation and the courts in every State of the Union, and 
 the almost absolute disappearance of individiial 
 sureties, is a complete demonstration of the practical 
 utility of one of the most important innovations of 
 modern time in the domain of legal procedure. 
 
 The forty years since 1870 exhibit an era of 
 wonderful development in practical and everyday 
 appliances of the modern law office. The modem 
 office building, the elevator, the electric light, the 
 telephone, the typewriting machine, the typewrit- 
 ten documents, the systems of filing papers, the 
 stenographers and typewriters, the art of printing, 
 the surety companies, have revolutionised law prac- 
 tice. The introduction of these improvements, most 
 of them within the last twenty-five years, has resulted 
 in dispensing with a large office force of clerks and 
 copyists, and economising labour and time to such 
 an extent that a day's work of a large modem office 
 would require several days, in former years, in an 
 office of the same relative rank and importance, and 
 not only demonstrates the progressiveness of the 
 modern lawyer, but furnishes a remarkable illustra- 
 tion of the rapid changes in the practice of a pro- 
 fession which is supposed to be exceedingly con- 
 servative, and to cling with tenacity to the methods 
 of the past. 
 
CHAPTER XIX 
 
 OUR SISTERS-IN-LAW 
 
 The advent of women as lawyers presents an inter- 
 esting phase in the development of the modem law- 
 yer. "Woman's Sphere," it was almost univer- 
 sally thought, did not include the learned profes- 
 sions, and especially the law. The turmoil of the 
 courts, their bitterly fought contests, the person- 
 alities iadulged in, the heated arguments, the free 
 and familiar intercourse between lawyers, wit- 
 nesses, and parties, were manifestly unsuited to the 
 preservation of the relation which should exist be- 
 tween men and women, to say nothing of ladies and 
 gentlemen. Consequently, the idea of admitting 
 women to practice in the courts met with general 
 disfavour from the public, determined opposition 
 from the bar and actual hostility from the bench. 
 That learned jurist, Mr. Justice Bradley, expressed 
 himself thus upon that subject in Mrs. Bradwell's 
 case (16 Wall, 130, at page 139). 
 
 "The civil law, as well as nature herself, has always 
 recognized a wide difference in the respective spheres and 
 destinies of man and woman. Man is, or should be, 
 woman's protector and defender. The natural and proper 
 timidity and delicacy which belongs to the female sex evi- 
 dently unfits it for many of the occupations of civil life. 
 The constitution of the family organization, which is 
 founded in the divine ordinance, as well as in the nature of 
 
 407 
 
408 LANDMARKS OF A LAWYER'S LIFETIME 
 
 things, indicates the domestic sphere as that which properly 
 belongs to the domain and functions of womanhood, The 
 harmony, not to say identity, of interests and views which 
 belong or should belong, to the family institution is re- 
 pugnant to the idea of a woman adopting a distinct and 
 independent career from that of her husband. So firmly 
 fixed was this sentiment in the founders of the common law 
 that it became a maxim of that system of jurisprudence 
 that a woman had no legal existence separate from her hus- 
 band, who was regarded as her head and representative in 
 the social state ; and, notwithstanding some recent modifica- 
 tions of this civil status, many of the special rules of law 
 flowing from and dependent upon this cardinal principle 
 still exist in full force in most States. One of these is, that 
 a married woman is incapable, without her husband's con- 
 sent, of making contracts which shall be binding on her or 
 him. This very incapacity was one circumstance which the 
 Supreme Court of Illinois deemed important in rendering a 
 married woman incompetent fully to perform the duties 
 and trusts that belong to the office of an attorney and 
 counsellor." 
 
 The agitation of this subject began, if not before, 
 at least about the time of my admission to the bar 
 in 1870, and continued without cessation until, in 
 1879, women's status as entitled to admission to the 
 bar was recognized by an act of Congress. The 
 credit for this crusade against the stronghold of 
 prejudice and opposition to women as lawyers, is 
 due to the indefatigable persistence of an able and 
 determined woman, Mrs. Belva A. Lockwood. The 
 scene of her labours and conflicts was the Supreme 
 Court of the District of Columbia, the U. S. Court 
 of Claims and the Supreme Court of the United 
 
OUR SISTERS-IN-LAW 409 
 
 States, To these she was a veritable "thorn in the 
 flesh," until she finally won the day. Her contests 
 became of national interest, and the public press 
 spread far and wide unsympathetic and often ludi- 
 crous accounts of her generally unsuccessful appli- 
 cations to hard-hearted judges for recognition of 
 her right to appear as an attorney and counsellor 
 at law. She became the laughing-stock of the courts 
 and of lawyers, but she illustrated in her own career 
 the truth of the sayiag "he laughs best who laughs 
 last." 
 
 Mrs. Lockwood was a dominant and forceful per- 
 sonality, of strong mental powers, possessing sound 
 common-sense and practical wisdom. Had she been 
 a man, she would have taken high rank among men 
 for ability and force, and she did so as a woman. 
 She was highly educated, and a teacher of expe- 
 rience, but she became imbued with the idea of be- 
 coming a lawyer and, contrary to all tradition, she 
 entered upon the thorny pathway leading to the 
 sacred precincts of the bar, where man alone waa 
 regarded as possessing exclusive privileges. Her 
 first step, of course, was to obtain the legal educa- 
 tion necessary to qualify herself for admission as 
 an attorney and counsellor. She therefore began 
 attendance at the law lectures of the Columbian 
 Law School in Washington, but the privilege of 
 even drinking at all at this Pierian spring of the 
 law was denied her, the authorities refusing her 
 offer of the matriculation fee, giving the absurd 
 reason that her presence "would be likely to dis- 
 tract the attention of the young men" — a high com- 
 
410 LANDMARKS OP A LAWYER'S LIFETIME 
 
 pliment, indeed, to the power of her personal at- 
 tractions in diverting serious minded young men 
 from the earnest pursuit of their studies prepara- 
 tory to their chosen profession. The doors of Co- 
 lumbian University being closed to her, she waited 
 until the following year, and then entered the Na- 
 tional University Law School. Evidently the spirit 
 of the law had aroused in woman a desire for legal 
 attainment, and fifteen women, including herself, 
 attended the lectures, but only two, she one of them, 
 completed the course. Nevertheless she was refused 
 a diploma. She then applied to the Supreme Court 
 of the District of Columbia and was subjected to 
 long delays. The first committee appointed to con- 
 sider her application refused to report. In the 
 meantime she had induced the court to amend its 
 rule respecting the admission of attorneys, by 
 striking out the word "male," and a new committee 
 was appointed, who, after examining her, withheld 
 its report for a long time, but finally rejected her 
 application on the ground that the court was op- 
 posed to the innovation of admitting women to prac- 
 tice. 
 
 She then sought admission to Georgetown Col- 
 lege in order to obtain a diploma, but her offer to 
 pay the entrance dues was declined, and she could 
 not become a member of its class in law. In the 
 meantime her right to practice had been recognised 
 by some of the minor courts, such as police courts, 
 courts of justices of the peace, and on one occasion, 
 at least, the probate court. But her right to appear 
 in the higher courts was denied. 
 
OUR SISTERS-IN-LAW 411 
 
 The name of Gen. Grant, president of the United 
 States, appeared as president of the National Uni- 
 versity Law School. In her desperation she ad- 
 dressed to him the following caustic letter respect- 
 ing the refusal of her diploma. 
 
 "To His Excellency, 
 
 TJ. S. Grant, President of the United States. 
 Sir: 
 
 Are you or are you not the President of the National 
 University Law School ? If you are its President, I desire 
 to say to you that I have passed through a course of study 
 in the school, and am entitled to, and demand, my diploma. 
 If you are not its President, then I ask that you take your 
 name from its papers, and not hold out to the world to be 
 what you are not. 
 
 Very sincerely yours, 
 
 Belva a. Lockwood." 
 
 No answer was received from President Grant, 
 but it is evident that he was stirred to activity in 
 her behalf, for, in the following week, she was pre- 
 sented with her diploma. She then applied for ad- 
 mission to the Supreme Court of the District of 
 Columbia, and was admitted, but her application 
 to the United States Court of Claims was not so 
 successful. "You are a woman," the Chief Judge 
 replied to her application, and Mrs. Lockwood was 
 obliged to plead guilty to the charge. The Court 
 in its perplexity adjourned her application for a 
 week. On re-appearance she was met by the fur- 
 ther charge "you are a married woman." She was 
 obliged to plead guilty also to this, but pleaded in 
 extenuation that she was presenting her applica- 
 
412 LANDMARKS OF A LAWYER'S LIFETIME 
 
 tion with, the knowledge and consent of her hus- 
 band. The court again took refuge in an adjourn- 
 ment of a week, but at the expiration of that time, 
 notwithstanding a learned argument in her behalf, 
 that honourable Court in an elaborate opinion an- 
 nounced its conclusion that the court was without 
 power to admit women to practice, and that women 
 were without legal capacity to take the office of at- 
 torney. 
 
 Nor was an application which she made to the 
 United States Supreme Court in October, 1876, re- 
 ceived with any greater consideration, for that high 
 tribunal thus expressed itself: "As this Court knows 
 of no English precedent for the admission of women 
 to the bar it declines to admit unless there shall be 
 a more extended public opinion or special legisla- 
 tion." The rebuffs to which she was subjected 
 would have daunted an ordinary individual, and it 
 was only an extraordinary woman who could have 
 risen superior to the discouragements produced by 
 her repeated defeats, but, with unabated energy and 
 zeal, she began a bombardment of Congress, and 
 for nearly three years employed every art known to 
 man or to woman to procure legislation and, finally, 
 in February, 1879, a law was enacted that any woman 
 duly qualified, who shall have been a member of the 
 highest court of any state or territory, or the Dis- 
 trict of Columbia, for the space of three years, and 
 shall have maintained a good standing before such, 
 court, and who shall be a person of good moral 
 character shall, on motion, and on the production 
 of such record, be admitted to practice before the 
 
OUR SISTERS-IN-LAW 413 
 
 Supreme Court of the United States. At last she 
 was triumphant,* and on March 3rd, 1879, she was 
 admitted to the bar of the Supreme Court of the 
 United States, and on March 6th, 1879, she was ad- 
 mitted to practice before the Court of Claims. But 
 even this legislation did not open the courts of all 
 the states to women as lawyers, for another ener- 
 getic woman, Mrs. Myra Bradwell, residing in the 
 State of Illinois, made application to the judges of 
 the Supreme Court of that State for a license to 
 practice law, presenting her petition with the usual 
 certificate from a Superior Court of her good char- 
 acter, and that on due examination she had been 
 found to possess the requisite qualifications, but the 
 judges of Illinois, wanting the deferential and 
 gallant spirit due to woman, denied her applica- 
 tion, and the Supreme Court of the United States 
 sustained the action of the Illinois Courts upon the 
 ground that it was within the power of a State to 
 prescribe the qualifications for admission to the bar 
 of its own courts, and that with the exercise of this 
 power it could not interfere. 
 
 An application of Mrs. Lockwood, of the same 
 nature as that of Mrs. Bradwell, for admission to 
 the bar of Virginia, met with the same fate notwith- 
 standing the statute of that State provided that 
 "any person duly authorized to practice as counsel- 
 lor or attorney at law in any State or Territory of 
 the United States or in the District of Columbia 
 may practice as such in the courts of this State." 
 But the Supreme Court of Virginia was so unfeel- 
 ing that in construing the statute it decided that a 
 
414 LANDMARKS OF A LAWYER'S LIFETIME 
 
 woman was not a "person" within the naeaning of 
 the statute, and that the word "person" as therein 
 used was confined to males. (In re Lockwood 154 
 U. S., 116.) 
 
 Mrs. Lockwood and Mrs. Bradwell were pioneers, 
 and militant pioneers as well, and notwithstanding 
 prejudice, opposition, and hostility from the bench 
 and bar, they won the contest, and woman has grad- 
 ually established her right to practice ia almost 
 every State of the Union and likewise in the Federal 
 Courts. During my recent service as one of a com- 
 mittee on the character of applicants for admission 
 to the bar, there almost invariably appeared among 
 the applicants a number of young women, no longer 
 unfamiliar figures among those seeking admission 
 to practice. But, having gained this right, little 
 use is made of it. "Uncertain, coy, and hard to 
 please" woman thought she wanted to be admitted 
 to practice as a lawyer in the courts, and now having 
 obtained what she thought she wanted, she finds 
 that she did not want it. It is now more than thirty 
 years since Mrs. Lockwood was admitted and the 
 right of woman to practice was established, but I 
 have never yet seen a woman plead a case of any 
 kind in court, and I have never yet met with a woman 
 lawyer, except in a single instance, when a young 
 woman lawyer, the daughter of a reputable member 
 of the bar, called upon me concerning the settle- 
 ment of some unimportant litigation, and I think 
 it may be safely asserted that there is no prospect 
 that woman will be seen except as a rara avis in the 
 ranks of the legal fraternity. 
 
OUR SISTERS-IN-LAW 415 
 
 During a recent attendance (October, 1913) on 
 the Supreme Court of the United States, I noticed 
 seated at the counsel table an elderly woman with 
 a strong, intellectual countenance, and wearing a 
 silken robe, bearing upon its sleeves the three vel- 
 vet bars indicating a Doctor of Laws. At one side 
 of her gown she wore a rosette of yellow ribbon, and 
 upon the table near her was her "mortar-board" 
 — the academic student's hat. She did not partici- 
 pate in the proceedings of the court, having appar- 
 ently no business to bring before it. An inquiry 
 as to who she was revealed the militant Belva A. 
 Lockwood. When the court adjourned, I intro- 
 duced myself to her, and met with an urbane and 
 courteous reception. The more than thirty-five 
 years passed since her militancy began have touched 
 her with a gentle hand; and she is to all appearances 
 as full of vigour and force as ever. I referred, of 
 course, to her struggle for recognition as a lawyer, 
 and she replied with honest pride that she, her- 
 self, drew the bill for the admission of women, and 
 added, "but more than that, I lobbied it through." 
 I also spoke of her gown and her rosette. "Yes," 
 said she, "this is the gown of a Doctor of Laws," 
 directing my attention to the velvet bands, "and 
 my rosette is the color of my University, Syracuse 
 — who gave me my degree in 1898." I congratu- 
 lated her on this distinction as a well deserved re- 
 ward of her achievements in the law, and she re- 
 ceived my congratulations with a dignified and 
 feminine manifestation of pleasure. 
 
CHAPTER XX 
 
 CODES, REPORTS AND TEXT BOOKS 
 
 The modern practitioner at the outset of his career 
 is confronted by two things of a most formidable 
 character — ^the Code of Civil Procedure and the 
 enormous number of Law Eeports. 
 
 Under the constitution of 1846, the law in New 
 York State emerged from its separate system of 
 common law and chancery practice inherited from 
 England, and entered upon a new system of legal 
 procedure. The code, as then enacted, was de- 
 signed to abolish the distinction between legal and 
 equitable actions, the former of which were cog- 
 nisable only by courts of common-law, and the lat- 
 ter by courts of chanceiy, resulting often in great 
 injustice by reason of a suitor having mistaken his 
 remedy in instituting an action in the common-law 
 courts when his remedy was in chancery, or by ap- 
 plying to chancery when he should have resorted to 
 the common-law. Dickens illustrated this effec- 
 tively in the pages of ' ' Bleak House ' ' in the proceed- 
 ings in Jarndyce against Jamdyce. It was also de- 
 signed to simplify pleadings by abolishing the sys- 
 tem of pleading which had grown up under these 
 separate jurisdictions, with its declarations, bills, 
 cross bills, pleas, replications, rejoinders, rebutters, 
 sur-rebutters and demurrers, general and special. 
 Without, however, attempting to point out the var- 
 
 418 
 
CODES, REPORTS AND TEXT BOOKS 417 
 
 ioTis features of the code designed to facilitate the 
 hearing and disposition of controversies, and to pro- 
 mote justice, it must be said that this effort to codify 
 and simplify the rules of practice and procedure 
 created an amount of litigation over questions of 
 practice which involved for the time being, at least, 
 greater complication, uncertainty and delay than 
 it had remedied, and it was, therefore met by a storm 
 of opposition and ridicule. 
 
 A large body of the reported decisions contained 
 in Howard's Practice Eeports, Abbott's Practice 
 Keports and the Code of Civil Procedure Eeports, 
 as well as many contained in Barbour's Supreme 
 Court Eeports, relate wholly to questions of prac- 
 tice which arose under the code. To illustrate this 
 a single but extreme instance of the great number of 
 adjudged cases contained in the reports which were 
 the outgrowth of one section will be sufficient. Un- 
 der the provision of the code, the disability imder 
 which parties to actions had existed, by reason of in- 
 terest, as to being witnesses in legal controversies, 
 was removed (section 828). But this general pro- 
 vision was followed by a provision forbidding a 
 party, or a person interested in the event, or a person 
 from, through or under whom such interested per- 
 son or party derived his title, from testifying as to 
 personal transactions with a deceased person or a 
 lunatic, where the executor of the deceased or a com- 
 mittee of the lunatic was the opposing party. (Sec- 
 tion 829.) From the time of its enactment this 
 section of the code has been a constant and prolific 
 source of litigation, and the ex-tent of it is apparent 
 
418 LANDMAEKS OF A LAWYER'S LIFETIME 
 
 from the fact that a digest of the decisions which 
 have been reported under it occupies over fifty-nine 
 small-type, double-columned octavo pages of Bliss' 
 edition of the Code of Civil Procedure, and since 
 then nearly two hundred additional decisions con- 
 struing it have been made in the Court of Appeals 
 and the Appellate Divisions. The table of cases 
 cited in another edition which have construed the 
 various sections of the code occupies one hundred 
 and twelve double-column pages, containing nothing 
 more than references to the cases cited, and when we 
 consider the vast number of additional cases which 
 have been decided by the courts, but not reported, 
 we can appreciate the tremendous volume of litiga- 
 tion which the code occasioned. 
 
 The code, as originally enacted, embraced 472 sec- 
 tions and at this number it remained at the time of 
 my admission to the bar in 1870. Between 1870 
 and 1880 it was revised and a large number of new 
 sections added and it then contained 3,356 sections, 
 and with new sections added since that time its 
 sections now number 3,441. Think what a formid- 
 able monster this is for a student of the law to at- 
 tack! He can never hope to master it in all its 
 complexity, for the human mind is incapable of do- 
 ing it. He may, very likely, become familiar with 
 the ordinary and every-day details of practice, but 
 there is scarcely a lawyer who at one time or an- 
 other does not lose sight of some of its familiar pro- 
 visions regulating procedure in actions, and only 
 discovers his over-sight when he is tripped up by 
 his watchful adversary. The most that the prac- 
 
CODES, REPORTS AND TEXT BOOKS 419 
 
 titioner can hope to do is to familiarise himself suf- 
 ficiently well with its general provisions to know that 
 there is somewhere in the code a provision which ap- 
 plies to the matter in hand, and knowing this, dig it 
 out hy diligent research. 
 
 Supplementary to the code and to effectuate its 
 provisions and the procedure under it, the courts 
 have also adopted a large number of rules which 
 require careful attention. So far as the rules are 
 concerned, they have added no burden which did not 
 exist under the rules in chancery, which were the 
 guides of the old-time practitioner. 
 
 Like the Civil Code, there is now a Code of Crim- 
 inal Procedure and the Penal Code, which cover all 
 classes of crimes and the procedure in criminal 
 courts. 
 
 At the time of my admission to the bar, and for 
 about ten years afterwards, the author of the code, 
 David Dudley Field, was still living and, most of 
 the time, active in practice, with all the old-time per- 
 sistence and pertinacity which carried through to 
 success his herculean task to abolish the legal 
 procedure of centuries, and procure the enactment of 
 his code as a statute, involving changes in the consti- 
 tution of the State, the retirement of the chancel- 
 lor, vice-chancellors and judges, as well as the array 
 of masters and examiners in chancery, and the crea- 
 tion of new courts, with new judges, and a new sys- 
 tem of administration of the law. He was one of 
 a remarkable quartet of brothers, one of them, 
 Stephen J. Field, a justice of the Supreme Court of 
 the United States ; another Cyrus W. Field, the pro- 
 
420 LANDMARKS OP A LAWYER'S LIFETIME 
 
 jector and successful constructor of the first Atlan- 
 tic cable; and tlie third a distinguished editor and 
 literary man, and their sister, Emilia, became the 
 wife of David Brewer, a missionary, and the mother 
 of Mr. Justice Brewer of the Supreme Court of the 
 United States. I often used to see Mr. Field in the 
 courts or pursuing his walks between his office and 
 his residence in Gramercy Park. Tall, erect, dig- 
 nified in bearing, of extensive learning and unques- 
 tioned ability, there was also something cold and re- 
 pellent in his demeanour, and although his manner 
 was polished and elegant, he lacked every element 
 of sympathy and magnetism, and his distinguished 
 professional achievements and success were not be- 
 cause of an outwardly attractive presence and man- 
 ners but in spite of them. 
 
 Few men, I suppose, have been subjected to 
 greater ridicule and abuse than David Dudley Field, 
 but the Code of Civil Procedure, his mightiest 
 achievement, not only endures in this State, but 
 within five years after its enactment as a statute 
 had been adopted in seven other States, and at the 
 present time has been adopted in almost all the 
 States of the Union, and in particular in those 
 States admitted since its adoption in New York. 
 It is a monument to his legal capacity, xmtiring zeal 
 and constructive force that will immortalise his 
 name as the "Father of the Code." 
 
 If one wishes to read a diatribe against codes, let 
 him turn to the case of McFaul against Eamsay, 
 (20 Howard, U. S. Supreme Court Reports, 523). 
 
CODES, REPORTS AND TEXT BOOKS 421 
 
 Speaking of common law pleadings, Mr. Justice 
 Grier said: 
 
 "This system, matured by the wisdom of ages, founded 
 on principles of truth and sound reason, has been ruthlessly 
 abolished in many of our States, who have rashly substituted 
 in its place the suggestions of sciolists, who invent new 
 codes and systems of pleading to order. But this attempt 
 to abolish all species and establish a single genus, is found 
 to be beyond the power of legislative omnipotence. They 
 cannot compel the human mind not to distinguish between 
 things that differ. The distinction between the different 
 forms of actions for different wrongs requiring different 
 remedies, lies in the nature of things; it is absolutely in- 
 separable from the correct administration of justice in com- 
 mon-law courts. 
 
 The result of these experiments, so far as they have come 
 to our knowledge, has been to destroy the certainty and 
 simplicity of aU pleadings, and introduce on the record an 
 endless wrangle in writing, perplexing to the court, delay- 
 ing and impeding the administration of justice." 
 
 Surely one will say that the code with its many 
 sections interpreted by numerous decisions might 
 well call forth the forcible strictures of the learned 
 justice. Adding to it the large body of reports with 
 their accompanying digests, tables of citations, en- 
 cyclopedias and books of practice the lawyer of the 
 present day faces a formidable array to attack. 
 
 My father once said to me that any one who thor- 
 oughly mastered Chitty on Pleadings would, if he 
 knew no other book, be a good lawyer, and one of 
 the clearest-headed and quickest-minded, as well as 
 
422 LANDMARKS OP A LAWYER'S LIFETIME 
 
 ablest lawyers of my earlier days, Mr. Francis N. 
 Bangs, once remarked to me that no man was fit to 
 be a lawyer who could not practice law without law- 
 books. Neither of them had a very extensive range of 
 law books to consult in their early studies of the law ; 
 such questions were generally considered on princi- 
 ple rather than on authority. There were not many 
 cases to cite and a thorough training in the princi- 
 ples of the law, and the ability to reason from princi- 
 ple was essential, as the fundamental requirement of 
 the successful lawyer. The opinions of judges in 
 these earlier days reveal this characteristic, and 
 nowhere more so than in the judgments of Chief 
 Justice Marshall. An examination of his opinions 
 will show that he rarely cited authorities, but treated 
 the subjects discussed by him almost entirely on 
 principle. In six of his great cases, Martin v. Mad- 
 ison, Cohen v. Virginia, McCulloch v. Maryland, 
 Dartmouth College v. Woodward, Sturges v. Crowns- 
 field, and Gibbons v. Ogden, not a single authority 
 is cited. 
 
 It is related of him that when he delivered his 
 opinions on some of the most important constitu- 
 tional questions (Mr. Justice Story then being one 
 of his associates) he remarked in conclusion: 
 "These are the views of the Court upon the ques- 
 tions involved and our brother Story will furnish 
 the authorities." 
 
 The multiplication of the reports of adjudged 
 cases has brought about a serious change in the pro- 
 fession generally. The days of briefly stated and 
 clearly expressed opinions, resting on fundamental 
 
CODES, REPORTS AiND TEXT BOOKS 423 
 
 principles, have largely departed. At present there 
 is such an enormous body of reported decisions, that 
 instead of resort to legal principles there is a hunt 
 among the law books for some case which will fur- 
 nish a parallel. It is not strange that it should be 
 possible to find somewhere in some volimae of re- 
 ports in one of the States of the Union, in England, 
 Canada, Australia or New Zealand some case sup- 
 porting almost any view which can be taken of any 
 other case like it. This resort to cases instead of 
 to principles has produced a different kind of law- 
 yer from those who, in former days, without pre- 
 cedents to guide them, made law on principles 
 evolved from their own inner consciousness. The 
 lawyer of the present day, I think, may be aptly de- 
 scribed by the well-known expression "case-lawyer." 
 Upon a given state of facts his first idea is to find 
 some reported case embodying similar facts, and if 
 he can find a case which is, in common parlance, on 
 "all fours" with his case he is well satisfied, and 
 the more "all four" cases he can accumulate the 
 more convincing is his argument likely to be. 
 
 This was what distinguished the late James C. 
 Carter from many of his contemporaries at the bar. 
 He argued on principle. He had somewhat of a 
 contempt for authorities. If in arguing on princi- 
 ple he found that his views were supported by well 
 considered authorities, so much the better. If, how- 
 ever, the result of his consideration of the case on 
 principle was an array of authorities opposed to his 
 view, then it was so much the worse for the author- 
 ities. In the capacity to distinguish his case from 
 
424 LANDMARKS OF A LAWYER'S LIFETIME 
 
 a reported case adverse to his views he was very 
 proficient, and perhaps he derived this proficiency 
 to a considerable extent from Mr, O'Conor, who was 
 an adept in that respect. This facility in pointing 
 out distinctions between cases is particularly valu- 
 able where so many authorities are available. 
 
 "All four" cases upon a critical examination are 
 not very common. There is almost always some 
 minute point of difference which will upset a whole 
 line of cases apparently very similar to that under 
 consideration. As Oliver Wendell Holmes says: 
 
 "A knot will choke a felon into clay, , 
 
 A not will save him spelt without the k." 
 
 Some one remarked "A single fact is worth a ton 
 of law." If a line of cases is adverse, the search 
 will be among the facts of the case in hand to find 
 some distinguishing fact which will take it out of 
 that line of cases, or, vice versa, to bring the case 
 within it. If no distinguishing fact can be supplied 
 it is quite likely that the carefully guarded language 
 of the opinion with the qualifications, will furnish 
 the necessary distinguishing feature. Then again 
 there is the balancing of authorities. As already 
 observed, authorities can by diligent search be 
 found sustaining almost any view of any case, and 
 then it becomes a question of balancing one against 
 the other, and when two authorities are found dia- 
 metrically opposed to each other, the question wUl 
 then be, which is the better supported on principle. 
 
 The well-known difference between the binding 
 force of reported cases as between courts of differ- 
 
CODES, REPORTS AND TEXT BOOKS 425 
 
 ent States, and also as between the courts of a State 
 and the Federal Courts, has become more marked of 
 late years than ever before. While a decision of 
 one of the courts of our own State in a case pend- 
 ing in one of our own courts is a precedent which 
 under the rule of stare decisis is ordinarily fol- 
 lowed and its binding force recognised, decisions in 
 courts of other States never possess any greater 
 value than as strong arguments, except in cases of 
 interpretation of the constitution or statutes of the 
 United States by the Federal Courts or by the court 
 of a sister State of its own constitution or statutes. 
 This difference has become more marked as the 
 volume of decisions of our own State has increased. 
 Formerly great respect, and almost binding force, 
 was given in cases in our own courts to authorities 
 from the English courts, and to very much the same 
 extent to cases in the State of Massachusetts, es- 
 pecially during the time of Chief Justices Shaw and 
 Parsons. The value of the decisions of other States 
 and of England has been constantly diminishing, 
 and although at the time I began practice, eases from 
 other States and from England were frequently 
 cited, it has become rarer and rarer until the present 
 time, when, unless there is an entire absence of au- 
 thority ia our own State, no reference is made to 
 them, and even when it is made little attention is 
 paid to them unless perfectly apposite to the ques- 
 tion involved. The same is true of the different re- 
 ports in our own State. The constantly changing 
 body of the law, as it evolves, renders the early de- 
 cisions of less and less value, so that, at the present 
 
426 LANDMARKS OF A LAWYER'S LIFETIME 
 
 time, the force of autkorities from the earlier re- 
 ports is much diminished, and the large body of law 
 contained in the Court of Appeals reports and in 
 Hun's Supreme Court reports and the reports of the 
 Appellate Divisions generally furnish authorities 
 which will counterbalance and outweigh the earlier 
 cases, and naturally so, because the later the author- 
 ity the greater its controlling force. 
 
 The difference in the value of authorities has be- 
 come more marked in these later days because of the 
 difference in value between the opinions of different 
 judges. While each opinion in our Appellate tri- 
 bunals, unless dissenting, is in law the utterance of 
 the Court as a body, the opinion itself has weight 
 and force in proportion to the reputation for learn- 
 ing and ability of the judge who delivered it, and 
 no matter what the court may be by which the case 
 was decided, if the opinion happened to be delivered 
 by a weak judge, it possesses no more importance 
 than the reputation of the judge for learning and 
 ability impresses upon it. Then again, the con- 
 trariety of decisions is wonderful ; the almost kaleid- 
 oscopic changes in human affairs produces changes 
 in the body of the law, and to change the metaphor, 
 the pendulum of the law swings backward and for- 
 ward to such an extent that the decision of ten years 
 ago is nullified by the decision of to-day, and there- 
 fore the earlier decisions by a process of modification 
 and questioning become of little value, so little in 
 fact, that there are comparatively few, as applied to 
 the development which human affairs has reached to- 
 day^ that have stood the test of its varying changes. 
 
CODES, EEPORTS AND TEXT BOOKS 427 
 
 On the whole, the effect of the large number of 
 adjudged cases contained in the reports has virtu- 
 ally transformed the profession from a class of law- 
 yers able to practice without law books to a class 
 almost entirely dependent on the adjudged cases. 
 
 The relative value of different series of reports 
 depends to a considerable extent, as already re- 
 marked, upon the work of the reporter, and also 
 upon whether the report is official or only that of 
 some individual who has undertaken an enterprise 
 in that direction. Many of the cases embraced in 
 the latter may have been regarded ,as not of suffi- 
 cient importance to justify their inclusion in the 
 official series, and in this way a large number of 
 cases are published which should never see the 
 light. One of this class of cases is where there has 
 been a wide difference of opinion between the judges, 
 resulting in strong dissenting opinions, by which 
 the value of the case as authority is greatly im- 
 paired, if not wholly destroyed. 
 
 An illustration of this relative value presented 
 itself during earlier times when the Court of Ap- 
 peals Eeports and Barbour's Supreme Court Re- 
 ports were considered the officially authorised 
 series, and there were appearing at the same time 
 Howard's Practice Reports, and Abbott's Practice 
 Reports, which cover much of the same ground, and 
 it is seen even now in the Court of Appeals Reports 
 and Appellate Division Reports which are official, 
 and the issue of the two unofficial series of Reports 
 — the New York Supplement and the New York 
 State Reporter. 
 
428 LANDMARKS OF A LAWYER'S LIFETIMES 
 
 In earlier times the publication of reports was 
 almost always a matter of private enterprise, and in 
 many instances the judges of the courts over which 
 they presided acted as their own reporters. When 
 Benjamin E. Curtis was appointed to the Supreme 
 Court of the United States he undertook the editing 
 and publishing of the reports of that court, and gave 
 to the profession a valuable condensation of them. 
 Blatchford's Reports of the Federal Courts was pre- 
 pared and published by Samuel Blatchford when he 
 was judge of the United States District and Circuit 
 Courts; Judges Duer, Bosworth, Sanford and Rob- 
 ertson were also judges of the Superior Court of the 
 City of New York, when they reported the decisions 
 of that court, and Judge Charles P. Daly was Chief 
 Judge of the Court of Common Pleas of the City 
 of New York when he published the reports of that 
 court. 
 
 At a single period there were simultaneously pub- 
 lished the United States Reports, United States Dis- 
 trict and Circuit Courts Reports, the Court of Ap- 
 peals Reports, Barbour's Supreme Court Reports, 
 Howard's and Abbott's Practice Reports, the Su- 
 perior Court Reports, the Court of Common Plea 
 Reports and the Surrogate Court Reports, besides 
 other less important issues. It will be readily seen 
 how great a burden this was upon the practitioner 
 who desired to be well-equipped. The inconven- 
 ience and embarrassment growing out of these var- 
 ious issues became so great that legislation was 
 enacted which produced a radical change. The 
 merging of the Superior Court and the Court of 
 
CODES, REPORTS AND TEXT BOOKS 429 
 
 Common Pleas into the Supreme Court at once dis- 
 pensed with the reports of those two courts, and 
 this was followed by legislation respecting the pub- 
 lication of reports, which has been of incalculable 
 benefit. This legislation provided for the issuance 
 of reports by oflficial reporters, mth the result that 
 the Court of Appeals reports, the reports of the 
 Appellate Division and of the inferior branches of 
 the Supreme Court, as well as inferior courts such 
 as the Surrogate's Court and the City Court of the 
 City of New York and of other cities and counties 
 are published in three official series — The Court of 
 Appeals Reports, the Appellate Division Reports 
 and the Miscellaneous Courts Reports. 
 
 Formerly the practitioner was obliged to wait for 
 his latest information as to the law until a volume 
 was prepared and published. This often involved 
 a delay of several months between the announce- 
 ment of the decision and its publication in the re- 
 ports. The change has been effected within the 
 last fifteen years, by which there are weekly issues 
 in pamphlet form, known as "advance sheets" of 
 the eases most recently decided, and these are em- 
 bodied in the volumes of reports when published. 
 The advance sheets are exact duplicates of the 
 volumes, and have the same authority as the pub- 
 lished reports. The advantage and convenience of 
 these to the courts and practitioners is obvious, and 
 presents a striking contrast to earlier days. 
 
 The relative value of the reports depends to a 
 great extent upon the head-note or syllabus of each 
 case stating with conciseness and accuracy the var- 
 
430 LANDMARKS OF A LAWYER'S LIFETIME 
 
 ious points decided. This, if well done, enables 
 tlie practitioner to form a reasonably accurate 
 idea of what the opinion contains. There is a wide 
 difference in the reports in this respect, and no mat- 
 ter what the case may be, nor how excellent the 
 opinion, the value of the case as reported is greatly 
 impaired if the work of the reporter in preparing 
 the head note or syllabus is not accurate. The sys- 
 tem pursued by the Supreme Court of the United 
 States is for each of the Justices to prepare the 
 syllabus of his own opinion, and we are therefore 
 enabled to know with accuracy what was meant to 
 be decided. The head notes or syllabi of the older 
 reports, such as Johnson, Cowen, Wendell, Hill, 
 Denio and Comstock are remarkably accurate. And 
 this is true of most of Barbour's reports and of 
 Hun, while the work of the official reporters of the 
 Court of Appeals and the Appellate Division under 
 the present system of reporting, seems to be well 
 executed. This is not the place, however, to point 
 out invidious distinctions, nor to call attention to 
 the deficiencies of various reporters. One of the 
 embarrassing features of the different series of re- 
 ports, part official and part individual, is in the repe- 
 tition of the one by the other of different cases, in- 
 volving the preparation often times of different head 
 notes, the only effect of which is to create confusion 
 in the profession and in the courts. 
 
 The first thing that a lawyer does when a case 
 likely to be the subject of litigation comes into his 
 office, after ascertaining the facts, is to hand the 
 statements of facts to some subordinate to ransack 
 
CODES, EEPORTS AND TEXT BOOKS 431 
 
 the reports. This subordinate begins with the en- 
 cyclopedia of law or the digest, consulting both, al- 
 though it matters not which first, gathering together 
 every authority bearing any similarity to the ques- 
 tion involved. After he has made this preliminary 
 search he can take each case which he has found, 
 and by referring to the citations of authorities which 
 have been carefully tabulated and published, may 
 learn where the cases which he has found have been 
 cited in other cases contained in the reports. If 
 they are cases of importance, they will have been 
 cited frequently. He wUl then examine each case 
 in which the cases found by him have been cited. 
 In this mode he will gather an additional array of 
 authorities upon the case which he is considering. 
 His object will then be to ascertain to what extent 
 the reported cases which he has gathered together 
 sustain the view which the client expects his counsel 
 to take. This often requires a critical examination 
 of a great number of authorities, involving careful 
 readings of opinions, the drawing of subtle distinc- 
 tions, and a correct estimate of each authority where 
 it is balanced by some opposing authority. All this 
 being done and a careful digest of cases made, it is 
 ready for the consideration of the seniors. 
 
 This is far different from earlier times, when the 
 reported cases were few, and it was necessary to 
 apply the facts to those eternal principles of law set 
 forth in "Coke on Littleton" or in "Blackstone." 
 During this examination he will be surprised doubt- 
 less by the numerous instances in which diametri- 
 cally opposite views are taken by different courts of 
 
432 LANDMARKS OF A LAWYER'S LIFETIME 
 
 the same question. This is naturally the case when 
 we consider the body of law promulgated by the Fed- 
 eral courts and by each of the courts of the forty- 
 eight different States of the Union. While it ex- 
 ists as between them in a marked degree, it occurs 
 in a less degree, but marked, nevertheless, in our 
 own courts in New York City, which embraced the 
 Supreme Court, the Superior Court of the City of 
 New York, the Court of Common Pleas of the City 
 of New York, the Surrogate's Court and the City 
 Court, between which there were frequent instances 
 of conflicting opinion. 
 
 Three illustrations of this conflict in the higher 
 courts are found in diametrically opposing decisions 
 of the Supreme Court of the United States and of our 
 Court of Appeals. The first is in the case of Kelly 
 against Crapo, (45 N. Y., 86) which involved the 
 question of the priority of liens upon a vessel at 
 the port of New York as between an attaching cred- 
 itor and assignees of the debtors appointed under 
 the insolvency laws of Massachusetts prior to the 
 issue of the warrant of attachment. The Court of 
 Appeals, consisting of seven judges, unanimously 
 decided in favour of the attaching creditor. The 
 case was taken to the Supreme Court of the United 
 States and the judgment of the Court of Appeals was 
 reversed (83 U. S., 610), by a majority of seven of 
 the nine judges of that court, two of the nine dis- 
 senting, and one of the seven declining to concur in 
 the prevailing opinion but concurring in the judg- 
 ment on entirely different grounds. The question 
 then arises which is the better authority, seven 
 
CODES, EEPORTS AiND TEXT BOOKS 433 
 
 judges of the United States Supreme Court, one of 
 them disagreeing with his associates as to the 
 ground of the decision, or the unanimous opinion of 
 the seven judges of the New York Court of Appeals. 
 
 Another instance is a case in which my father was 
 counsel, The Railroad against Lockwood (84 U. S., 
 357). It involved the question of the right of a 
 railroad company to exempt itself from liability 
 for negligence resulting in an injury to a passenger 
 travelling on its road, on a free pass. At the time 
 of the argument of the case, that question had been 
 decided by the Court of Appeals in favour of the 
 railroad company in several cases : Wells vs. New 
 York Central, (24 N. Y., 181), Perkins vs. New York 
 Central, (24 N. Y., 196), Smith vs. New York Cen- 
 tral, (24 N. Y., 222), Bissell vs. New York Central 
 (25 N. Y., 442), Poucher vs. New York Central, (49 
 N. Y., 263). When, however, the case came before 
 the Supreme Court of the United States, the de- 
 cisions of the Court of Appeals were not regarded 
 as controlling, and a different view was taken result- 
 ing in a decision against the company. 
 
 I have elsewhere referred to another instance of 
 this supplied by the case of Knowlton against the 
 Congress & Empire Spring Company, in which a de- 
 cision of the commission of Appeals, a court co- 
 ordinate with the Court of Appeals, decided in 
 favour of the defendant; the Supreme Court of the 
 United States took a precisely opposite view and de- 
 cided in favour of the plaintiff. These are but a 
 few of the many instances of differences in opinion. 
 
 In recent years the United States Supreme Court 
 
434 LANDMARKS OP A LAWYER'S LIFETIME 
 
 has soiiglit to remove tliis conflict of decisions by ap- 
 plying the doctrine of comity, and even in questions 
 in which the Federal courts exercise their own 
 judgment they should for the sake of comity and to 
 avoid confusion lean to agreement with the State 
 court if the question is balanced with doubt. 
 
 Thanks, however, to those very excellent publica- 
 tions, the tables of cases affirmed, reversed or modi- 
 fied, the practitioner is enabled to ascertain without 
 difficulty whether an authority on which he places 
 reliance has been impaired by subsequent decisions. 
 
 Each lawyer in the days of 1870 was supposed to 
 possess his own private library, in his home or office ; 
 he could easily accommodate all the New York Re- 
 ports, the Federal reports, the English reports, 
 and, perhaps, the reports of the important sister 
 States. Some of these libraries by constant accre- 
 tion became large and valuable, but the number of 
 reports issued annually increased so rapidly that the 
 libraries themselves became so large and cumber- 
 some that it was almost, if not quite, impossible to 
 keep up a private library to such an extent as to 
 furnish complete sets of the various issues of re- 
 ports. 
 
 One of the most valuable libraries of the time was 
 that of Nicholas Hill of Albany, the foundation of 
 which was laid by Judge Esek Cowen, of the old 
 Supreme Court, in connection with which there is an 
 interesting incident related elsewhere. Aaron J. 
 Vanderpoel, a prominent lawyer of New York, and 
 Clarence A. Seward, also a lawyer of distinction, a 
 nephew of William H. Seward, were the possessors 
 
CODES, REPORTS AND TEXT BOOKS 435 
 
 of valuable libraries. The Law Institute of the City 
 of New York was the first Law Library in New York 
 to meet the needs of lawyers in the rapid increase 
 of the reports. Mr. Charles 'Conor was one of its 
 founders and greatly interested in its growth and 
 development, and to it, as stated elsewhere, he be- 
 queathed his volumes of cases argued, and opinions 
 delivered, and there they may be found. It pos- 
 sesses a large valuable and complete library and 
 still flourishes, furnishing excellent facilities to its 
 members. 
 
 Then the Association of the Bar formed in 1869, 
 furnishes facilities of the most adequate description, 
 and there it is possible to find complete sets of 
 every series of reports issued anywhere. Accord- 
 ing to the last report of the Bar Association its li- 
 brary numbers over one hundred thousand volumes. 
 
 Other valuable libraries have also been gathered, 
 one of which was that of the Equitable Life Assur- 
 ance Society, destroyed in a recent fire ; another, the 
 library of the New York County Lawyers' Associa- 
 tion. The large office buildings also hold out in- 
 ducements in the way of well-equipped libraries to 
 induce lawyers to become tenants. The establish- 
 ment of these libraries, and the multiplication of the 
 reports, have resulted in an abandonment by law- 
 yers of maintaining more extensive libraries than 
 their immediate needs demand. This demand is 
 generally met by a working library, consisting of 
 the reports of cases adjudged in the courts of New 
 York State, and by such digests, encyclopedias and 
 books of practice as may be convenient, which at the 
 
436 LANDMARKS OF A LAWYER'S LIFETIME 
 
 present time would probably number 1,500 vol- 
 umes, "''"'it 
 
 The increase in the volumes of reports in the 
 United States Courts and the courts of New York 
 may well be illustrated by a comparison of their 
 number at four different periods. In 1826, when 
 my father commenced practice, the published re- 
 ports of the Supreme Court of the United States 
 and of the State of New York numbered fifty, con- 
 sisting of twenty-four volumes of United States Ee- 
 ports and twenty-six of the State Eeports. In 1850, 
 when he was elected Judge, this number had been 
 increased by eighty-two, twenty-seven of which 
 were United States Eeports and fifty-five were 
 State Eeports. In 1870, when I was admitted to 
 the bar, there were 315 volumes, of which seventy- 
 seven were United States Eeports and the remainder 
 brought the Court of Appeals Eeports down to Vol- 
 ume 42, and Barbour's Supreme Court Eeports 
 down to Volume 67. 
 
 In addition to these, however, there were How- 
 ard's Practice Eeports, Abbott's Practice Eeports, 
 the Eeports of the Superior Court of the City of 
 New York and of the Court of Common Pleas. At 
 the present time we have over 1,300 volumes of the 
 New York State Eeports alone, and 229 of the 
 United States Supreme Court Eeports and 204 of 
 the Federal Eeporter, which contain the reports 
 of cases decided in the United States Circuit and 
 District Courts. To this number must be added the 
 different series of reports of cases in the United 
 States Circuit Court of Appeals in the nine differ- 
 
CODES, REPORTS AJSID TEXT BOOKS 437 
 
 ent circuits, and the different series of reports such 
 as the New York Supplement, the New York State 
 Eeporter, the North Eastern, North Western, South 
 Western, and Atlantic Reports, which of themselves 
 form a large lihrary. 
 
 The vast number of text books embraces almost 
 every conceivable legal subject. Before 1830 there 
 were less than ten of any importance, but it was in 
 1830 that Chancellor Kent's "Commentaries on the 
 Law" were completed, and between 1832 and 1843, 
 Mr. Justice Story produced that series of great 
 works which were recognized everywhere as land- 
 marks in the law and furnished the basis of legal 
 education for the generation following, and between 
 1830 and 1860 other additions deserved and re- 
 ceived a place in the front rank of legal discussion. 
 Among the most notable being Cowen and Hill's 
 notes to Phillips on Evidence, Grreenleaf on Evi- 
 dence, Washburn on Keal Property and Parsons on 
 Contracts. 
 
 The years since my admission to the bar in 1870 
 have been productive of almost innumerable con- 
 tributions to the discussion of legal subjects, many 
 of which are worthy of a place among the very best 
 of their kind. It was about 1870 that one of the 
 most notable text books, its author an American, 
 was published in England. This was "Benjamin 
 on Sales," prepared by Judah P. Benjamin, a na- 
 tive of Louisiana, a Senator of the United States, 
 who cast in his fortunes with the South during the 
 Civil War, was Attorney General, and subsequently 
 Secretary of State in the cabinet of Jefferson 
 
438 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Davis, and, at the close of tlie war, made Ms escape 
 in a small vessel which, after a perilous voyage, 
 reached England, where he devoted his energies to 
 the building up of his fallen fortunes by the prac- 
 tice of his profession. It was during the first years 
 of his residence in England, when retainers were 
 few, that this work was composed. It was sufBcient 
 of itself to establish for him a high reputation, and 
 it bore fruit in the succeeding years, for at his 
 death, he occupied one of the most commanding 
 positions at the English bar. 
 
 In 1869, Shearman and Eedfield published their 
 work on Negligence as a special subject, and when 
 we consider that the first cases reported in New 
 York State on the law of negligence were those of 
 Townsend against Susquehanna (6 Johnson, 90) ; 
 Schieffelin v. Harvey (6 Johnson, 169) ; Elliot v. 
 Eossell (10 Johnson, 1) ; and Foot v. Wiswell (14 
 Johnson, 303), in the last of which it was claimed by 
 such eminent counsel as Samuel Jones and David 
 B. Ogden that the fault and all its consequences 
 rest on the defendant for navigating a steamboat 
 in a night so dark that vessels could not be distin- 
 guished, it is apparent that since these cases a 
 tremendous number of negligence cases must have 
 occupied the attention of the courts to require the 
 publication of a work on that subject. 
 
 In 1872 Judge John F. Dillon published his splen- 
 did work on Municipal Corporations, upon which 
 he had spent nine years. This was the year of 
 Perry on Trusts and Trustees, of Wharton's "Con- 
 flict of Laws," of Bigelow on Estoppel. In 1873 
 
CODES, REPORTS AND TEXT BOOKS 439 
 
 Schouler on Personal Property and Freeman on 
 Judgments, and, in 1874, High on Injunctions were 
 published. In 1876, Daniel on Negotiable Instru- 
 ments, Cooley on Taxation, Jones' Law of Railroad 
 and other Corporate Securities, and Bigelow on 
 Fraud appeared. 
 
 The subject of private corporations had for some 
 years occupied attention and,, in 1882, Mr. Victor 
 Morawetz gave to the public his work on private 
 corporations, which has been repeatedly cited with 
 the highest approval by the courts of the United 
 States. In 1880 Chief Justice Cooley 's great work 
 on Constitutional Law was published, and Pome- 
 roy's Equity Jurisprudence appeared a year later. 
 The comprehensive work of William W. Cook on 
 "Stock and Stockholders," which has developed 
 through succeeding editions into large proportions, 
 was published in 1887. In 1890 Roger Foster's 
 "Federal Practice" furnished to the profession a 
 treatise of the highest usefulness on practice in the 
 Federal courts. Electricity also received attention, 
 for Seymour D. Thompson in 1891 gave to us his 
 work on the Law of Electricity, and Edward R. 
 Keasbey, in 1892, contributed his work on the Law of 
 Electric Wires used on Streets and highways. 
 
 The Inter-State Commerce Act, passed in 1887, 
 and questions of commerce which have been mooted 
 in the courts, resulted in a number of books of im- 
 portance on this subject, such as Lewis' "Federal 
 Power of Commerce," Van Fleet's "Law of Com- 
 merce, ' ' and the valuable work of E. Parmlee Pren- 
 tice and John G. Egan on the Commerce Clause of 
 
440 LANDMABKS OF A LAWYER'S LIFETIME 
 
 the Federal Constitution were publislied; and 
 Judge Noyes' "American Eailway Rates," and Ms 
 "Law of Inter-Corporate Relations, " as well as 
 that of Beale and Weyman on the Law of Railway 
 Rate Regulation, were important contributions. 
 The law relating to labour and trust questions was 
 illustrated by Ray's "Contractual Limitations, in- 
 cluding Trade Strikes and Conspiracies and Cor- 
 porate Trusts and Combinations," and by Copley's 
 "Strikes and Boycotts," and by Beach's "Monopo- 
 lies and Industrial Trusts." The law of Em- 
 ployers' Liability has also received attention in the 
 works of Dresser and of Alger and Slater. The 
 vast number of text books is supplemented by a 
 great variety of books of pleading and practice, of 
 tables of cases affirmed, reversed, cited or distin- 
 guished; of books of forms; of general digests and 
 digests on special subjects, such as the Digests of 
 the Law of Negligence and of Insurance, and last, 
 but not least, by those monumental encyclopedias — 
 the American and English Encyclopedia, and the 
 Encyclopedia of Law, works of the utmost import- 
 ance and value, and of the greatest service to the 
 profession. If the bar is overwhelmed by the vast 
 number of reports and text books, the facilities pro- 
 vided to enable the modem lawyer to pursue his 
 way through the mazes of the law are by no means 
 inadequate. 
 
CHAPTER XXI 
 
 SOURCES OF BUSINESS 
 
 In launching out, the vital question after acquiring 
 experience, is how to obtain employment. For the 
 young lawyer who decides to identify himself with 
 a large office and gradually work his way up, this 
 question is practically disposed of. He will have 
 no clientage which he may call his own, unless he 
 happens to develop that important natural gift of 
 attracting it by his own magnetism and personality, 
 in which case his value to the office will gain speedy 
 recognition. Such instances are rare, however, in 
 actual experience, for most young lawyers who are 
 natural business-getters prefer to build up a busi- 
 ness and create a practice of their own. Apart 
 from this invaluable gift, fidelity and usefulness 
 bring about the desired result, for the death and 
 retirement of the seniors will leave him in full pos- 
 session; but this means a series of long years — 
 years as a junior — occupied with details, and, as a 
 subordinate, subject to direction and dictation, hav- 
 ing no individuality, being a part of a large ma- 
 chine, where one 's name signifies little or nothing in 
 point of reputation in the public mind — the office 
 is everything, and he is nothing. But in the course 
 of time, when his seniors are dead, and his hair has 
 turned grey or departed, he will have his reward in 
 being at the head of a flourishing business, but 
 
 441 
 
442 LANDMARKS OP A LAWYER'S LIFETIME 
 
 without the tremendous satisfaction wMcli a lawyer 
 is entitled to feel, who, either by his unaided ef- 
 forts or with some congenial partner, has built up 
 a business, and in doing so has acquired standing 
 and reputation and made a name for himself. 
 
 There is a class of lawyers who are naturally 
 business-getters. No one can tell, not even them- 
 selves, how they do it — nascitur non fit. There is 
 that magnetic quality, that type of personality, that 
 mysterious ability to create a favourable impres- 
 sion with or without very much fundamental capa- 
 city which attract, in the most surprising way, 
 shrewd and hardheaded men of affairs. The for- 
 tunate possessor of this gift, if he spends an hour 
 at lunch will very likely come back with a client; 
 if he goes to church he will make clients there ; if he 
 takes a Saturday for golf his opponent in the play 
 will probably retain him to draw his will, and if he 
 flits about in society he will quite likely become the 
 professional adviser of some wealthy widow or 
 fashionable divorcee. The business-getting lawyer, 
 as such, has no progenitor and will probably have 
 no posterity. The gift was born with him and will 
 die with him, and he is powerless to educate any 
 human being in its mysteries. The possessor of 
 this gift should be thankful for it and exercise it. 
 
 Two professional acquaintances of my earlier 
 days illustrate this remarkable faculty. One was 
 Isaac P. Martin, the senior member of the firm of 
 Martin & Smith, which occupied a very important 
 and well-earned position among the firms of those 
 days. His partner was Mr. Augustus F. Smith, an 
 
SOURCES OP BUSINESS 44a 
 
 accomplished and able lawyer. Mr. Martin almost 
 never appeared in the courts, but he had the unique 
 faculty of attracting a very large and important 
 clientage, especially in the mercantile community. 
 Added to this natural gift was business sagacity, 
 sound common-sense and a fair knowledge of the law, 
 which, supplemented by Mr. Smith's accurate, legal 
 knowledge and advocacy in the courts, resulted in 
 making the firm highly distinguished and remark- 
 ably successful. Mr. Martin was diminutive in stat- 
 ure, and not very prepossessing in appearance. 
 He would hardly be selected as one whose dignified 
 and imposing appearance would be likely to attract 
 important clients, but such was his magnetic quality 
 and the charm of his personal bearing and conversa- 
 tion, that he was the center of a host of admiring 
 clients. Mr. Smith, on the other hand, was a man 
 of highly distinguished personal appearance and of 
 very solid and substantial attainments, but of some- 
 what austere and imposing dignity, and it is quite 
 likely that after Mr. Martin had attracted the clients 
 Mr. Smith was very much more important in hold- 
 ing them. It is said of Mr. Martin that in a finan- 
 cial upheaval, where securities pledged as collateral 
 were likely to be sacrificed at a time of great finan- 
 cial depression by forced sale, he was the first to 
 invoke the equity powers of the court in a bank- 
 ruptcy proceeding to issue an injunction restraining 
 the lender from selling them, thus compelling the 
 lender to protect the borrower by carrying the se- 
 curities until danger was passed. 
 Another instance of this gift was Samuel L. M. 
 
444 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Barlow, who, wlien I first heard of him, was a mem- 
 ber of the firm of Bowdoin, L^rocqnes & Barlow, 
 another of the most important firms of that day. 
 He was the antipodes of Mr. Martin, being tall, 
 portly and distinguished in appearance. He was 
 a mighty force among the financial magnates. He, 
 too, never appeared in court — this branch of the 
 firm's practice beiug under the direction of the 
 two brothers Jeremiah and Joseph Larocque. Mr. 
 Barlow was a great business lawyer, of remarkable 
 keenness of perception, of commanding influence 
 over financial magnates, and his office was filled with 
 a highly important class of business, most of which 
 was connected with railroad and banking interests. 
 He acquired great celebrity in the days of the Erie 
 litigation of 1869, and, subsequently, when Jay 
 Gould and James Fisk, on the one side and Commo- 
 dore Vanderbilt on the other, were pitted against 
 each other. Since that time there has grown up a 
 class of lawyers of which they were the forerunners 
 until at the present day this type of lawyer has ac- 
 quired a position at the bar which if not more dis- 
 tinguished, without doubt receives larger fees than 
 the most eminent and successful practitioners in the 
 courts. 
 
 Fortunately this gift of transforming acquaint- 
 ances into clients is not indispensable. Fair ca- 
 pacity and steady, persistent effort will, of them- 
 selves, in time attract a clientage. There is an old 
 adage, "keep your office if you expect your office to 
 keep you," and it is nowhere truer than in the law. 
 A business-getter may make the golf field, the tennis 
 
SOURCES OF BUSINESS 445 
 
 court and society functions productive of clients, but 
 according to my experience and observation they are 
 more often absolutely fatal to success, and many a 
 young lawyer who might have been, by conscientious 
 and faithful attention to business during business 
 hours, a successful practitioner, is — if he has not 
 married a rich wife — now occupying some subordi- 
 nate position at a moderate salary as assistant m the 
 legal department of some large corporation, or oc- 
 cupied with petty business, earning a precarious liv- 
 ing. The time when others are away is a good time 
 to be on hand, for some one will be almost sure to 
 need you. Some of the best business and clients 
 that I ever had in my earlier days came on Satur- 
 days, or in midsummer, and in one particular in- 
 stance, when I was about thirty-four years old, I was 
 called upon by a gentleman in an emergency, whose 
 regular counsel was absent from the city for the day, 
 which resulted in my employment in a professional 
 matter which lasted for about four years, and in 
 which I received $26,000. 
 
 In my earlier days I used to wonder how some of 
 the men who were starting out in the law could ever 
 hope to succeed. They apparently had few friends, 
 small personal attractiveness, very little bonhomie, 
 and almost no resources. Others seemed to possess 
 advantages which wotdd be likely to insure success ; 
 but now as I look about among the acquaintances of 
 my earlier days, where are the favoured onest 
 "Gone," as Oliver Wendell Holmes said, "like the 
 tenants that quit without warning down the back 
 entry of time." And the plodders! Well, I could 
 
446 LANDMARKS OF A LAWYER'S LIFETIME 
 
 point out numbers who, although, achieving no great 
 success and whose names will never be emblazoned 
 in the hall of fame, are in possession of the well- 
 earned rewards of fidelity, perseverance and in- 
 dustry, with the respect and confidence of every one 
 who knows them, and living in comfort on "Easy 
 Street." 
 
 One of the most common, and at the same time 
 most mistaken, sources of dependence of the lawyer 
 is his family connections. He is apt to suppose, 
 very naturally, that those to whom he is related by 
 kinship will feel an interest in promoting his pro- 
 fessional success. While there are undoubtedly 
 cases in which large professional employment is the 
 result of family ties, I think it is the general expe- 
 rience of lawyers that relations furnish one of the 
 most unreliable sources of business. I do not sup- 
 pose that it is any lack of interest, or want of con- 
 fidence that prevents combining family relationship 
 and professional employment, but it is due in part 
 to a hesitation to have any relative acquainted in- 
 timately with the ins and outs of business transac- 
 tions that may reveal peculiarities, tendencies and 
 business methods of which a comparative stranger 
 may be regarded as a discreet repository, but which, 
 if entrusted to a relative, might prove to be a source 
 of embarrassment. Then again, when professional 
 employment is on a purely business basis, there is 
 greater freedom to criticise and direct, or even to 
 sever the relationship if circumstances require it. 
 
 I believe that the general run of lawyers will 
 agree that relatives are not a desirable class of 
 
SOURCES OF BUSINESS 447 
 
 clients. In the first place, if the result is not en- 
 tirely favourable, the adverse criticism which fol- 
 lows runs the entire length and breadth of the law- 
 yer's family connections, and not only interferes 
 with agreeable family intercourse, but injures him 
 in the estimation in which he would like, and prob- 
 ably deserves, to be held by his relatives. If he is 
 successful, there is no one equal to him in their es- 
 timation; if he is unsuccessful, there is none so 
 quick to criticise as the relative-client. Then again 
 the compensation to which in ordinary cases he 
 would be justly entitled is often affected. A rela- 
 tive often entertains the idea that he is conferring 
 a favour by "giving him business," and that, being 
 a relative, he ought not to be charged as much as 
 others; indeed, it is often thought that the services 
 should be gratuitous, and whatever amount is 
 charged will very likely be considered excessive. 
 In family and social intercourse, relatives may be 
 attractive and lovable, and in times of trouble sym- 
 pathetic and helpful, but my advice to the young 
 lawyer is not to place too much dependence for 
 business upon your family connections but seek 
 clients among those who desire your service solely 
 because of your capacity as a lawyer. 
 
 I recall an instance in my earlier days when a gen- 
 tleman called upon me to prepare his will. I was 
 familiar with the fact that among his immediate 
 relatives there were one or two very competent law- 
 yers, and a feeling of delicacy as to possibly inter- 
 fering with their professional employment led me 
 to suggest as much to him. I well remember the 
 
448 LANDMARKS OF A LAWYER'S LIFETIME 
 
 somewhat startled and perhaps indignant manner 
 with which he received my suggestion, and the tart 
 response that he was quite aware of their capacity 
 and of their claims upon him; that if he desired their 
 service he would apply for it, and that if I had any 
 hesitation on that account in accepting the business, 
 he would secure someone who had no such scruples. 
 I at once apologised for the suggestion and assured 
 him that business was not so abundant that I did 
 not desire to serve him to the best of my ability. 
 In many instances of a similiar character which sub- 
 sequently arose I never again offered such an indis- 
 creet suggestion as my inexperience had led me to 
 make on that occasion. 
 
 An admiring and enthusiastic father-in-law, whose 
 interest in the welfare of his daughter perhaps 
 prompts him to sound the praises of his son-in-law 
 is a most desirable ad.iunct to a young lawyer. 
 While it may be true that in his own business he 
 will seek his tried and trusted adviser of former 
 years, yet if he is a man of influence, his recommen- 
 dation will be productive of favourable results, and 
 I know of at least one distinguished lawyer whose 
 early success at the bar was promoted by the loud 
 praises of an enthusiastic father-in-law, though his 
 undoubted capacity, of itself, would have, brought 
 him distinguished achievement, even if by a slower 
 process. 
 
 A shrewd and able business man, many years my 
 senior, remarked in my earlier days: "Just re- 
 member always that if you do not blow your own 
 horn then the same is not blowing." He appre- 
 
SOURCES OF BUSINESS 449 
 
 ciated to the fullest extent the value of advertising 
 and bringing one's wares to the attention of the 
 public in every legitimate way. But this ia one of 
 the things that the lawyer has the least liberty to 
 do. It is the unwritten law that he should not ad- 
 vertise. It is true that in the newspapers of small 
 communities one frequently notices the business 
 cards of country lawyers, and by common consent 
 such practice is not considered reprehensible, for the 
 reason, perhaps, that the struggling country news- 
 paper is more in need of the advertisement than the 
 struggling country lawyer is of being advertised. 
 Elsewhere such advertising is rarely found and in 
 the large cities it would be regarded as unprofes- 
 sional. All forms of soliciting business were in 
 earlier days considered unprofessional, but this 
 feeling has been greatly modified during the evolu- 
 tion of the lawyer in later years. In the case of 
 young lawyers just beginning allowance should be 
 made. They may let their friends know they are 
 ready for business by distribution of cards, and 
 avail themselves of opportunities to serve their ac- 
 quaintances professionally; they may gain public 
 recognition by furnishing to the press interesting 
 items of legal news, especially in litigations with 
 which they have been connected professionally and 
 with which it is in every way proper that their name 
 should be connected, and the publication of such 
 items is often a service to the public. In social inter- 
 course interesting cases may, quite naturally and 
 with due regard to modesty and want of assumption, 
 afford an opportunity of calling attention to profes- 
 
450 LANDMARKS OF A LAWYER'S LIFETIME 
 
 sional success and create a favourable impression. 
 These opportunities should not be lost. 
 
 There is, however, a class of lawyers who carry 
 solicitation of business beyond all proper limits, and 
 in a most unprofessional way. They are known as 
 "ambulance-chasers," and are chiefly employed in 
 personal injury cases. They have agents and run- 
 ners everywhere — in hospitals and in the police de- 
 partment particularly — and as soon as an accident 
 happens, even before the injured party has re- 
 covered from the effect of the first shock or while the 
 relatives of a deceased person are plunged in the 
 earliest stages of their deep grief, the ambulance 
 chaser will appear on the scene, and with mock sym- 
 pathy and a well-feigned offer of disinterested as- 
 sistance, seek to procure a contract of employment 
 to bring an action on the basis of receiving half of 
 the amount recovered. No reputable lawyer will 
 lend himself to such practices, and if any feasible 
 means of preventing it by legislation could be de- 
 vised it should be adopted. In other directions, too, 
 business is frequently solicited in reprehensible 
 ways, some of which will be referred to in the 
 chapter on "Fees, Eegular and Contingent." But 
 the genuine and reputable way of building up a prac- 
 tice is by serving one client so efficiently that he 
 will be interested in introducing another. 
 
 All lawyers will agree, I think, that how or why 
 professional employment comes is often a mystery. 
 It appears from the most unexpected sources and, 
 like the wind — "no one can tell whence it cometh 
 or whither it goeth." While legitimate efforts 
 
SOURCES OF BUSINESS 451 
 
 to obtain business in particular directions are 
 quite likely to prove unavailing, yet, in making the 
 effort, something may quite unexpectedly arise which 
 will lead to other business which was wholly unex- 
 pected. A trivial circumstance will lead to most 
 important results. An insignificant item of service 
 for a client or some kindly attention to an acquaint- 
 ance may open leads of business, yielding large 
 pecuniary results. 
 
 Years ago a young lawyer sent me, from a distant 
 city, a pamphlet containing an address which he 
 had delivered on some legal topic. The large quan- 
 tity of such literature which one receives would nat- 
 urally have led me to give it a glance and cast it 
 aside, but his address was so well done, and pre- 
 sented his legal position so attractively that I wrote 
 him a letter of commendation. Sometime subse- 
 quently he sent me a small item of business — the 
 fee in which was, I think, $10. From that time a 
 large volume of business followed, resulting in my 
 employment as local counsel to a large corporation, 
 and later on, by reason of that connection, I was 
 retained in other important business, and from this 
 small beginning the aggregate result was many 
 thousands of dollars. 
 
 Another instance occurred soon after my admis- 
 sion to the bar, when, in 1872, I had earned money 
 enough to pay for a trip to Europe, and setting out 
 alone I found myself in a stateroom accommodating 
 three other young men beside myself on board the 
 ill-fated steamer Atlantic, subsequently wrecked on 
 the coast of Newfoundland. One of the number 
 
452 LANDMARKS OF A LAWYER'S LIFETIME 
 
 was a yotmg insurance agent who had recently se- 
 cured the agency of a large English company and 
 was on his way to give an account of his steward- 
 ship. I did not hide my candle under a bushel, but 
 let it shed modest light on the subject of the law to 
 all who were in the room. The result was a very 
 happy one for me, for shortly after my return the 
 young insurance agent employed me professionally, 
 following it with busiaess which paid my European 
 trip over and over again. 
 
 About 1880, I was employed in a little case which 
 only involved $800, but it was so earnestly litigated 
 by an Israelitish opponent that I had fairly earned 
 all that the case involved before it was brought to 
 trial. However, I concluded that the only way to 
 dispose of the case was by trying it, which I did, 
 before Judge Freedman and a jury. The case in- 
 volved two points, one of which the judge decided 
 he would instruct the jury to find in my favour, and 
 the other he would leave to their consideration. 
 The result was a verdict in favour of my client, but 
 it was followed by an appeal, finally to the Court of 
 Appeals, where the judgment was reversed and the 
 case sent back for a new trial. All hope of any 
 adequate compensation had disappeared, but it was 
 necessary that the case should be tried again, and 
 on the next trial before Judge Truax, he concluded 
 to pursue directly the opposite course to that of 
 Judge Freedman, leaving to the jury the question 
 which Judge Freedman had directed them to find in 
 my favour and directing the jury to find a verdict in 
 my favour on the question which Judge Freedman 
 
SOURCES OF BUSINESS 453 
 
 had submitted to them. The result was again a 
 verdict in my favour. Again there was an appeal 
 to the Court of Appeals, but alas! the judgment 
 was again reversed because the Court decided that 
 both questions should have been submitted to the 
 jury. The case was finally tried, resulting in my 
 client's victory. Now the reward, which was in- 
 adequate so far as the fee was concerned, followed 
 in this: that on an occasion when it was necessary 
 for my client to give a bond as security for some 
 purpose, I came in contact with a little Jew, whose 
 mother-in-law had a bakery uptown. They were 
 favourably impressed by my zeal, and from that 
 little individual there came a line of business during 
 the succeeding years which amply and abundantly 
 rewarded me for any sacrifice which I had made in 
 the case referred to. Business not only comes un- 
 expectedly and from most unpromising beginnings, 
 but the experience of most lawyers is that until the 
 full tide of professional employment is reached 
 there will be alternate periods of absolute stagna- 
 tion, and of active employment, which literally make 
 the first fifteen years of a lawyer's practice one of 
 either feast or famine. 
 
CHAPTER XXII 
 
 FEES REGULAR AND CONTINGENT 
 
 The subject of fees is a sensitive point with law- 
 yers. Judging from experience it is also a sensi- 
 tive point with clients. Where there happens to be 
 a difference of opinion between the lawyer and his 
 client as to what the fee should be, reputable law- 
 yers, I think, prefer to make almost any concession 
 to the client than to engage in a controversy. There 
 is probably no more perplexing subject with which 
 the lawyer has to deal than the fixing of his fee. 
 This is due to the fact that there is no standard to 
 guide him. Then, too, the difference between law- 
 yers in the fees charged for the same service is very 
 great, depending, of course, upon difference in ex- 
 perience, ability and professional standing, and 
 even among lawyers of the same relative standing-, 
 the difference in the amount charged for the same 
 service is at times very considerable. Some time 
 since it became necessary for one of our most 
 prominent lawyers to arrange with his associate, a 
 well-known and adroit Jewish lawj^er, for a suit- 
 able fee in a matter of considerable importance, and 
 they met for that purpose. The former inquired 
 what his associate thought would be proper and the 
 latter named an amount which in his opinion would 
 be exceedingly liberal. What was his surprise to 
 
 464 
 
FEES EEGULAB AND CONTINGENT 455 
 
 have our prominent brother protest vigorously that 
 it was not enough, that double the amount would be 
 no more than right, and suggested that the matter 
 be left to him, and he would arrange it. The Jew- 
 ish lawyer could scarce contain himself, and raising 
 both hands exclaimed "How can you ever charge 
 such an amount? Almost thou persuadest me to be 
 a Christian!" The matter resolves itself into a 
 question of ability to command a fee that the busi- 
 ness will justify. The measure of the fee depends 
 entirely upon ability, experience and professional 
 eminence. The lawyer who needs business will 
 quite likely take it for any fee, however small. It 
 is not necessary that the busy lawyer should enter 
 into competition, as the size of the fee he will ex- 
 pect will be quite irrespective of what may be charged 
 by others. Clients are sometimes heard to remark 
 that they can get the work done for very much less 
 elsewhere, and the successful lawyer immediately 
 retorts, that if they can get it done as well for a 
 less amount elsewhere, it is, of course, for their 
 interest to do so. The good judgment of every law- 
 yer comes into play in accurately gauging what his 
 own interest requires, from the standpoint of the 
 desirability of the individual as a client, the char- 
 acter of the business involved, and his own right 
 from the standpoint of ability, experience and pro- 
 fessional standing to require the fee he expects. 
 The difficulty and importance of the matter involved 
 and the circumstances of the client are generally 
 taken into account and opinions respecting them 
 vary widely. There is no greater opportunity for 
 
456 LANDMARKS OF A LAWYER'S LIFETIME 
 
 the display of tact than in fixing a fee which will 
 leave a client grateful and appreciative. 
 
 There is a class of cUents that seem to feel that 
 in bringing business they are doing a favour and 
 offering an opportunity, 9,nd that the favour shown 
 and the opportunity offered are an equivalent for 
 the service rendered. Then another class is dis- 
 posed to think that any fee, however moderate it 
 may be in fact, is high ; and another thinks that your 
 services are not worth much unless your charge is 
 large. Then there is the client who always wishes 
 to have the fee fixed in advance, one of the most 
 difficult things to do, especially in the conduct of 
 litigation. In such cases the client does not always 
 get the better of the bargain, but, knowing the limit 
 of the charge is better satisfied. There is also a 
 class of clients that prefer to regard litigation as a 
 kind of gamble. They are willing to take some of 
 the chances and they want their lawyer to take some ; 
 therefore they generally propose that the fee be 
 fixed upon a basis of paying a certain amount if they 
 lose and a very much larger amount if they win, the 
 result being that if the litigation is a failure, the 
 lawyer will receive some compensation, though it 
 be inadequate, and if it is a success, his fee will be 
 considerably in excess of the reasonable value of 
 the service performed. 
 
 The grateful client is not frequent, but when, as 
 happens sometimes, he voluntarily increases the 
 amount of the fee, he does honour to human nature. 
 But what shall be said of the high-minded Philadel- 
 phia practitioner, of whom it is said that on being 
 
FEES KEGULAB AND CONTINGENT 457 
 
 paid a fee of fifty thousand dollars by a grateful 
 client, he returned one-half of the amount because 
 he felt that one-half was all that had been earned. 
 It is related of Mr. Evarts that on being retained in 
 a prominent will case, he wrote requesting a retainer 
 of two thousand five hundred dollars, ($2,500) ; but 
 his client misreading the note sent him a check for 
 twenty-five thousand dollars ($25,000). Mr. Evarts 
 instead of accepting it, with thanks, very honorably 
 returned the check, calling attention to the mistake. 
 A distinguished lawyer used to remark that no mat- 
 ter what the money fee was, he never felt paid unless 
 he felt sure of the gratitude of his client. It might 
 also be added that no client should feel that he had 
 reaUy paid his lawyer until he had expressed his 
 gratitude. 
 
 The difficulty of fixing a fee which will meet the 
 approval of the client and at the same time com- 
 pensate the lawyer, was illustrated by a story re- 
 lated to me by Senator Spooner as having actually 
 occurred. A good many years ago a well-to-do-cot- 
 ton merchant brought an action in one of the South- 
 em States to recover certain cotton, or its value, 
 amounting to about $75,000. The action was in the 
 hands of counsel to whom he had been recommended, 
 but, in the course of the preparation of the case for 
 trial, he became dissatisfied as to their ability to 
 conduct the case successfully, and was at a loss 
 what to do. It so happened that as he was return- 
 ing from their offices to his hotel, he saw at a dis- 
 tance an old acquaintance who at one time had been 
 a most prosperous and capable lawyer in Chicago, 
 
458 LANDMARKS OF A LAWYER'S LIFETIME 
 
 but, through, unfortunate circumstances, had been 
 obliged to abandon his practice and was reduced 
 ahnost to penury. The merchant inquired as to 
 what he was doing, and the other explained his hope- 
 less condition owing to inability to find anything to 
 do. "How would you like to try a lawsuit?" said 
 the merchant. "How would I like to try a lawsuit! 
 Why, I would like to try a lawsuit better than do 
 anything else on earth." "Well," said the mer- 
 chant, "come with me to my hotel and I will ex- 
 plain my case to you and then I will take you to my 
 lawyers and arrange for you to try it." This was 
 like the sound of martial music to the old war- 
 horse, and the introduction and explanation took 
 place. The case came on in a few days and the 
 threadbare lawyer won it triumphantly. Then 
 there came to his mind the question of his fee. He 
 did not know what to charge; he wondered if five 
 hundred dollars would be too large ; then he thought 
 perhaps it had better be only two hundred and fifty 
 dollars ; but that seemed small ; and perhaps he had 
 better charge three hundred dollars, and he laid 
 awake almost all night undecided whether the fee 
 should be five hundred or three hundred dollars. 
 The following morning he started for the office of 
 the attorneys in the case, and whom should he see 
 approaching him, all smiles, but his opportune client. 
 Greeting him with the greatest effusion, the client 
 took out one of those long pocket-books which held 
 bills lengthwise, and, opening it, extracted a pack- 
 age of $500 bills. He handed one of them to the 
 lawyer in silence; he followed it with another, and 
 
FEES EEGULAR AND CONTINGENT 459 
 
 that with a third, then followed a fourth, and finally 
 a fifth, and, looking up, he inquired: "Will that 
 be satisfactory for the work you did yesterday?" 
 "Well," replied the impecunious one, "add another 
 and that wiU be enough." 
 
 Few, probably, appreciate how much of a lawyer's 
 work is uncompensated. There are always a con- 
 siderable number of individuals in every lawyer's 
 circle of acquaintance whom it is a matter of charity 
 to serve, with the result that the gratitude of which 
 he is the recipient, and the consciousness of a ser- 
 vice well performed for a worthy individual, is bet- 
 ter than any pecuniary reward. After all, the law 
 cotdd not yield genuine satisfaction unless some- 
 times used to befriend the unfortunate, and to pro- 
 tect the fatherless and the widow. 
 
 The highest type of lawyer, although he is in prac- 
 tice to earn fees, is not one who practices simply for 
 fees, but one whose chief end is to be serviceable, and 
 to transact the business in hand so as to produce 
 the best possible result for his client, with a fee as 
 a secondary consideration. In other words, his 
 conception of his duty is to serve his client effi- 
 ciently, irrespective of the time and labour in- 
 volved, having in mind only an adequate recogni- 
 tion by the client in dollars and cents for faithful 
 and valuable service. 
 
 There are some litigations, however, in which the 
 subject of fees sinks into insignificance. This hap- 
 pens when the litigation is so prolonged that the 
 whole amount involved will not justify an adequate 
 charge and, in fact, might not be even reasonable 
 
460 LANDMARKS OF A LAWYER'S LIFETIME 
 
 compensation, and then it becomes a point of hon- 
 our with the lawyer to carry it, if possible, to a suc- 
 cessful conclusion without hope of anything like a 
 reasonable fee. 
 
 Almost all lawyers, I believe, prefer fees which 
 are based upon the reasonable value of their ser- 
 vices, irrespective of the result secured. This is 
 undoubtedly the ethical basis of practicing law, 
 which receives the approval of the Bar Associations 
 and of the best element of the profession. In Eng- 
 land practitioners of the law, whether solicitors or 
 barristers, regulate their fees almost entirely on this 
 basis. The importance of the business involved 
 necessarily affects the amount of the fees charged, 
 but generally speaking, solicitors have a definite 
 and well regulated scale of charges for the various 
 items of service, to which the approval of their law 
 societies and long established custom oblige them 
 to conform. To us a solicitor's fee bill is a curi- 
 osity, as it is made up of separate items, such as 
 "writing a letter," "having a consultation," etc., 
 very much the same as a grocer's bill would be made 
 up, the total of the items constituting the customary 
 fee. The barrister, on the other hand, proceeds 
 upon a different basis. His fee is regarded as an 
 honorarium. When a solicitor sends a brief in a 
 case to be tried, it is accompanied by a retainer, and 
 there is marked upon the brief the per diem fee. 
 Of course the nature of the business and the stand- 
 ing of the barrister have everything to do with the 
 fixing of the fee. The amount of the per diem fee 
 differs widely between those who are juniors and 
 
FEES REGULAB AND CONTINGENT 461 
 
 the seniors — the latter being those who have grad- 
 uated from the ranks of the juniors and have "taken, 
 silk" with preferment often as King's Counsel. The 
 per diem fee varies from one guinea to the junior to 
 appear in court as a matter of form, and the two 
 hundred guinea King's Counsel, who is constantly 
 employed in matters of the greatest importance. 
 
 The barrister sometimes also receives another 
 fee, called a "refresher" which, in the course of a 
 protracted litigation is supposed to refresh his 
 drooping energies and stimulate his activity. It is 
 undoubtedly true that barristers in large practice re- 
 ceive, and I hope earn, very large incomes, averag- 
 ing during a series of years $100,000 or more, not 
 differing, generally speaking, from lawyers of equal 
 prominence at our own bar. Such great lawyers 
 as Sir Koundell Palmer (Lord Selbome), Lord 
 Chief Justice Colridge, Lord Cairns, Sir Henry 
 Hawkins (Lord Brampton) and undoubtedly the 
 Anglo-American Judah P. Benjamin, received very 
 large incomes. Of these. Sir Henry Hawkins, the 
 'Enery 'Orkins of the criminal bar, is said to have 
 received the largest income ever received at the 
 English bar, but he was wise enough to refuse the 
 most urgent requests to divulge the amount. Be- 
 sides his criminal and common-law practice which 
 was very large, the great income which he received 
 came probably from numerous retainers in land 
 valuation proceedings in connection with the con- 
 struction of the Thames embankraent and other 
 London improvements about thirty years ago. In 
 passing, I can recommend to those who take pleasure 
 
462 LANDMARKS OF A LAWYER'S LIFETIME 
 
 in legal reminiscences, the deligMful recitals con- 
 tained in the two volumes of Lord Brampton's 
 reminiscences. 
 
 I venture to say that at no time, and in no coun- 
 try, have the fees received by lawyers been as large 
 as those received by New York City lawyers during 
 the last thirty years. A fair and authenic illustra- 
 tion of the income received by an American lawyer 
 of the highest type before that time will be found in 
 that of Benjamin R. Curtis of Boston, who during 
 the sixteen years following his retirement from the 
 bench of the Supreme Court of the United States, 
 received, as nearly as can be ascertained, $650,000, 
 averaging $40,000 a year. 
 
 Occasionally, however, in earlier days, a large fee 
 arrived. Take as an instance, the fee of $400,000 
 said to have been charged by Henry L. Clinton in 
 the Commodore Vanderbilt will case. William H. 
 Vanderbilt complained that the fee was extrava- 
 gant, and if Mr. Clinton insisted on it, he would 
 never again retain him, to which Mr. Clinton re- 
 torted: "Your future retainers are matters of in- 
 difference to me, because when you pay me my fee I 
 expect to retire." Probably the largest single in- 
 come from litigated business was received in 1911 
 by a prominent lawyer imported from one of the 
 smaller cities of the interior of the State, which, 
 after deducting expenses, amounted to a little over 
 $1,000,000, $800,000 of which was a single fee re- 
 ceived by him for the defense of a Western magnate 
 in a criminal prosecution growing out of his admin- 
 istration of one of our banks. I have not been in- 
 
FEES REGULAR AND CONTINGENT 463 
 
 formed as to the sources of the remaining $200,000, 
 but the accuracy of the fact above stated is vouched 
 for credibly. 
 
 We have some reliable information in the records 
 of the courts as to hundreds of thousands of dollars 
 allowed for receiverships and executorships, as well 
 as in railway organizations and cases of industrial 
 consolidations, enabling a considerable number of 
 successful American lawyers to maintain lordly 
 establishments on a scale of extravagant expendi- 
 ture. 
 
 An account is given in the book "Anglo-Ameri- 
 can Memories," by Mr. G. W. E. Eussel, of Mr. 
 Carnegie's sale of his steel properties to Mr. Mor- 
 gan, at a price, it is related, that yielded him an in- 
 come of £3,250,000 or $16,250,000. But the inter- 
 esting part of it to the lawyers is the fee which he 
 tells us Mr. Francis Lynde Stetson and Mr. Victor 
 Morawetz received for services during a period of 
 eleven days, in preparing the necessary documents 
 and supervising the transfer, — no Tess than $500,- 
 000. The legal complications and difficulties in con- 
 nection with this sale were probably no greater than 
 are involved in hundreds of smaller transactions 
 which are effectuated constantly, and for which a 
 hundredth part of this amount would be regarded 
 as adequate compensation, but these accomplished 
 lawyers are, of course, to be congratulated upon this 
 munificent compensation, the justification, of course, 
 being in the magnitude of the amount involved and 
 the responsibility assumed. All this is very differ- 
 ent from the former days of moderate fees when the 
 
464 LANDMARKS OF A LAWYER'S LIFETIME 
 
 country lawyer used to receive Ms pay in "orders 
 on the store," or in a parcel of land, or in a quan- 
 tity of provisions, and the criminal lawyer, as in- 
 deed is often the case now, found his recompense by 
 way of a fee for his successful defense, in a pur- 
 loined watch or an article of jewelry and sometimes 
 a diamond ring. 
 
 The fees received in the early days of practice 
 sometimes have a ludicrous aspect, as in an exper- 
 ience of my own — ^my first case — which was in a 
 justice's court. I was employed by a small tailor 
 to defend him against a claim of fifteen dollars by 
 a music teacher for giving lessons to his son. Dili- 
 gent study resulted in discovering a defense based 
 on the principle of "entire contracts." The study 
 of the law of contracts in that case stood me in good 
 stead in later controversies and in this particular 
 case my defense was successful. Then came up the 
 question of a fee. Fifteen dollars being the amount 
 involved, it was difScult to name an adequate fee 
 without charging at least the whole amount. Hap- 
 pening to call on my client, intending to broach the 
 subject of a fee, my eye fell upon a linen duster of 
 which I was then in need. I do not think its price 
 was over $2.50 but a happy thought led me to sug- 
 gest that I should take the linen duster as a fee for 
 my successful defense, to which my impecunious 
 client gladly assented and I bore it away as tangible 
 evidence of my professional skill. 
 
 The incomes of lawyers have always been a subject 
 of interest, not only to lawyers but to laymen. 
 There are few subjects, probably, that are more 
 
FEES EEGfttiAB AND CONTINGENT 465 
 
 matters of guess-worfc than this, especially as law- 
 yers are very loath to disclose the amount of their 
 receipts. Many are credited, from outward indi- 
 cations, with receiving far more than they actually 
 receive, while others, credited with receiving little 
 because of their quiet and inconspicuous practice, 
 are in receipt of incomes that would occasion sur- 
 prise if the amount were known. Outward indi- 
 cations amount to little. Large and expensive of- 
 fices and a "bold front" impress the credulous, but 
 they are generally deceptive. Of the entire body of 
 about eight thousand lawyers in the city of New York, 
 probably ten per cent are in receipt of very respect- 
 able incomes. One-tenth of the eight hundred may 
 be in receipt of incomes of fifty thousand dollars or 
 more; another hundred may be receiving between 
 twenty-five and fifty thousand ; another one hundred 
 and fifty between fifteen and twenty-five thousand; 
 and the remainder will receive from ten thousand 
 to nearly fifteen thousand. If the incomes of law- 
 yers were revealed, it would probably occasion sur- 
 prise to find how few lawyers receive more than 
 twenty-five hundred dollars a year. In contrast 
 with the large fees received in these later days, it 
 is interesting to recall the statement of Mr. Choate 
 in his entertaining address on Mr. Southmayd, that 
 when Mr. Evarts invited Mr. Choate to join the firm 
 of Butler, Evarts & Southmayd in 1859, he wrote 
 him that he might fairly expect that the net income 
 of the fiLrm, exclusive of his own outside counsel fees, 
 would amount to $20,000. 
 
 Fees, based upon the contingency of success or 
 
466 LANDMAKKS OF A LAWYER'S LIFETIME 
 
 failure in litigation have since early times been gen- 
 erally condemned, resulting in statutes against 
 champerty and maintenance. The former is de- 
 scribed by Blackstone as " a bargain with a plaintiff 
 or defendant campum partire to divide the land or 
 other matters sued for between them if they prevail 
 at law, whereupon the champertor is to carry on the 
 party 's suit at his own expense ; ' ' and the latter as 
 ' ' officious meddling in a suit that no way belongs to 
 one by assisting either party with money or other- 
 wise, to prosecute or defend." These were offenses 
 at common law as against good morals and tending 
 to encourage and foster litigation. It is undoubt- 
 edly true that contingent fees in a litigation are, 
 generally speaking, objectionable as offering a 
 means to unscrupulous lawyers for exacting uncon- 
 scionable fees. Reputable members of the profes- 
 sion of the law at all times have generally disap- 
 proved them. 
 
 Eecently a code of ethics promulgated by the State 
 Bar Association, has criticised contingent fees se- 
 verely, but notwithstanding the statutes, under 
 which, as was said nearly thirty years ago, no prose- 
 cution had been had within the memory of men 
 living, and the general disapproval of them by 
 reputable practitioners, I think it may safely be 
 said that a considerable proportion of the litigation 
 pending in the courts in negligence cases or actions 
 for personal injuries founded upon neglect of duty, 
 as well as many mercantile cases and the suits for- 
 merly so numerous against the elevated roads for 
 compensation to abutting owners, have been, and 
 
FEES EEGULAR AND CONTINGENT 467 
 
 now are conducted on this basis. This is ahnost in- 
 variably the case in proceedings to set aside taxes 
 and assessments, as well as in the numerous claims 
 against the government of the State, and of the 
 United States. I believe it to be also true that in 
 almost every litigation conducted by the most re- 
 putable lawyers, the element of contingency enters 
 into the question of compensation. 
 
 There are few, if any, lawyers who have a fixed 
 and uniform standard of compensation applying in 
 all cases, irrespective of the result, while in almost 
 every case, I believe, lawyers expect to and do re- 
 ceive more liberal compensation in case of success 
 than they are willing to accept in case of failure. It 
 is naturally the case that all reputable lawyers are 
 willing to share with the client, to some extent, the 
 risk of the litigation, and in case of failure sympathy 
 naturally leads them to moderate their fee. There 
 are sometimes cases in the experience of every re- 
 putable lawyer in which it would be a practical de- 
 nial of justice to the unfortunate, oppressed, and 
 impecunious client if he were unwilling to under- 
 take their cause and let the size of his fee depend 
 upon the result of the litigation, even though there 
 were no definite agreement to that effect. 
 
 Undoubtedly in certain kinds of cases, such as 
 those involving personal injuries, unscrupulous law- 
 yers exact agreements for contingent fees which, 
 are harsh and oppressive. They make no distinc- 
 tion between cases which are plain and those which 
 are doubtful, and they generally require an agree- 
 ment for one-half of the amount recovered, besides 
 
468 LANDMARKS OF A LAWYER'S LIFETIME 
 
 the taxable costs, whicli are frequently considerable. 
 Such agreements, in my opinion, are unfair, and 
 should be condemned, and when questioned should 
 be under the supervision of the courts, and the bur- 
 den of proving that they are just, fair and reason- 
 able should be upon the lawyer who procures them. 
 In view of the fact that the statutes alluded to, and 
 the general disapproval by reputable members of 
 the profession, have failed entirely to prevent the 
 making of agreements for contingent compensation 
 between lawyer and client, and that undoubtedly, 
 there are cases in which reputable lawyers in the 
 interest of justice are willing to undertake litiga- 
 tions in which they assume the risk of obtaining no 
 compensation unless they are successful, it is prob- 
 ably true that the practice of arranging for con- 
 tingent fees cannot be suppressed. 
 
 Even a practitioner of such a lofty sense of pro- 
 fessional honour as Mr. O'Conor, undertook the For- 
 est divorce case with his compensation depending 
 largely upon the result. It led him also to furnish 
 loans of money to his client for her subsistence 
 during the progress of the litigation, and it was not 
 until its successful termination that he secured a 
 reasonable compensation out of the alimony and 
 costs awarded. 
 
 Leaving out of view, however, the question of pro- 
 fessional ethics, and considering contingent fees 
 from the standpoint of legality, the question has 
 been set at rest by the Court of Appeals in favour 
 of their legality, in the case of Fowler v. Callan, 
 (102 N. Y., 395). 
 
FEES REGULAR AND CONTINGENT 469 
 
 Some instances have occurred in my own exper- 
 ience in which a sense of justice led me to under- 
 take business of this character. In the early days 
 of my practice an improvident young man, wholly 
 without means and in poor health, was referred to 
 me to obtain redress for what seemed to me to be a 
 great wrong. At an early age, before his majority, 
 he had, as an heir of his deceased grandfather, in- 
 herited an interest in an estate under his grand- 
 father's will by which a son, then a Methodist minis- 
 ter, was appointed executor and trustee. My 
 client's interest consisted largely of an undivided 
 share in real estate which, for a considerable period 
 of time, remained unsold. During this period, be- 
 ing in want of money, his uncle, the executor and 
 trustee, entered into negotiations with him for the 
 purchase of his interest in the estate, which he 
 finally sold to his uncle for $10,000. Subsequently, 
 the real estate was partitioned, and at the parti- 
 tion sale the interest of my client realized $20,- 
 000, by which the uncle secured a profit of $10,000. 
 He naturally felt that his uncle had taken undue ad- 
 vantage of his immaturity and inexperience, and 
 that while relying upon his uncle's judgment and 
 superior information as executor and trustee, he had 
 been led by his uncle 's representations to convey his 
 interest for much less than its actual value, which 
 was imdoubtedly the case. He had no friends upon 
 whom he could rely and during a somewhat wild and 
 wayward life had wasted in riotous living what he 
 had already received, and was in no position to in- 
 stitute what was likely to be an expensive litiga- 
 
470 LANDMARKS OF A LAWYER'S LIFETIME 
 
 tion. He had already consulted counsel, who had 
 advised him that as there appeared to be no basis 
 in the uncle's representations upon which a charge 
 of actual fraud could be founded, he had no cause 
 of action against him. 
 
 I was not aware of the fact that other counsel 
 had been consulted when the case was presented to 
 me, but on examination there seemed to be a rea- 
 sonable prospect of success upon the ground that as 
 the uncle was executor and trustee and the nephew 
 one of the beneficiaries, a relation existed which 
 raised a presumption of what is called constructive, 
 as distinguished from actual fraud in the pur- 
 chase by the uncle from the nephew of his interest 
 in the estate; that the burden was upon the uncle 
 to prove that the transaction was just, fair and 
 free from suspicion, and unless that proof was 
 made the transfer would be set aside and he would 
 have to account to the nephew for the profit re- 
 ceived. I therefore made an arrangement with the 
 young man on the basis of a reasonable contingent 
 fee. 
 
 In due time the trial occurred before Mr. Justice 
 Abraham E. Lawrence, who, after long deliberation, 
 decided in favour of my client. The uncle relied 
 upon proving that there was no actual fraud, but 
 his counsel seemed to have omitted to give due im- 
 portance to the question of constructive fraud, and 
 I well remember the consternation with which they 
 received the learned justice's decision, refusing to 
 dismiss the case. An appeal was taken by the uncle, 
 but the decision rendered was sustained. The course 
 
FEES EEGULAR AND CONTINGENT 471 
 
 of the litigation occupied probably a year and a half. 
 The failing health of my client warned him that he 
 had not long to live, and it gave me the greatest 
 pleasure to pay over to him about $8,000 which en- 
 abled him to provide himself with comforts and med- 
 ical attendance during the next two or three years, 
 when he died. It has always been a gratification to 
 me to think that I was able to befriend him. The 
 case is reported under the title of Lambert v. Brown- 
 ing, (25 Hun., 450). 
 
 Another instance that arose out of pitiable cir- 
 cumstances was the case of a brakeman on the New 
 York, New Haven and Hartford Eailroad, who, by 
 the negligent manner in which a car was loaded with 
 manure, was precipitated underneath the moving 
 train by the slipping of the manure, while he was 
 stepping from one car to the other in the discharge 
 of his duties, both of his legs being so crushed as 
 to require amputation. The case was exceedingly 
 doubtful, inasmuch as being an employee he assumed 
 all the incidental risks of his employment, and it 
 was incumbent upon him to show that the railroad 
 had failed to exercise reasonable care to provide 
 reasonably safe appliances for the discharge of the 
 duties of his employment. There was the further 
 question as to his right to sue the railroad in our 
 courts, because it was claimed by the company that 
 he was a resident of the State of Connecticut, and 
 as the injury occurred in Connecticut and the rail- 
 road was a foreign corporation the injury was not, 
 therefore, the subject of investigation in our courts. 
 
 I was requested to undertake the case by a highly 
 
472 LANDMARKS OP A LAWYER'S LIFETIME 
 
 reputable Connecticut lawyer, who explained to me 
 satisfactorily that, owing to the practice prevailing 
 in Connecticut, there was no hope of securing ade- 
 quate redress in its courts. He also explained to 
 me that the injured brakeman was entirely without 
 means, and in his weakened and helpless condition 
 was unable to earn anything, and that the humble 
 circumstances of his friends made it reasonably 
 sure that unless he could secure from the railroad 
 some compensation for this frightful injury his life 
 would be spent in abject poverty. He was very 
 anxious that I should undertake the case, and stated 
 that any arrangement that could be made with me 
 would be satisfactory. I suggested a percentage of 
 the amount recovered, which was eagerly agreed 
 to, and an action was begun. The case was well and 
 ably defended and was tried before that excellent 
 judge, Joseph F. Daly, and a jury, with the result 
 that the jury gave my client a verdict of $12,000. 
 The company was not satisfied with the result and 
 appealed the case, but the verdict of the jury was 
 sustained, and it was with great satisfaction to my- 
 self, and to the unbounded and overwhelming grati- 
 tude of my unfortunate client, that I was able to 
 pay him an amount, which, prudently invested, 
 would render him entirely independent during the 
 remainder of his life. The case will be found re- 
 ported under the title of Phelps v. New York, New 
 Haven and Hartford Eailroad Co. (17 App. Div. 
 392). 
 
 Another and final instance of a similar character 
 was the case of a prosperous and well-to-do indi- 
 
FEES REGULAR AND CONTINGENT 473 
 
 vidual of a somewhat bumptious and exuberant dis- 
 position, whom I had casually met, but never served 
 professionally. He appeared in my office one day, 
 and in a vociferous way remarked: "Strong, I 
 have a case in which I want you to go halves with 
 me. I won't spend any money on it, but I will give 
 you half of what I get. ' ' I told him that that was 
 not my usual way of conducting business, and that 
 I thought it would be better for him, and more sat- 
 isfactory to me, if he had a reasonable case, to pay 
 a reasonable sum for my service as he was able to 
 do and get the benefit of the litigation if success- 
 ful. He scorned the idea, and said that he would 
 do nothing else than what he had proposed. He 
 told me that it was a case against an insurance com- 
 pany in which he held a policy of fire insurance, 
 that his house had burned down and that the com- 
 pany had declined to pay because of various changes 
 in the occupation of the premises, and the procure- 
 ment of other insurance, and the omission to ob- 
 tain, in due and legal form, transfers of the in- 
 surance, so as to render it enforcible by my client, 
 and unless enforced by him it could not be enforced 
 by any one else. I told him I would examine the 
 case and advise him as best I could. Subse- 
 quently he appeared with his papers, and an ex- 
 amination of them revealed an extremely compli- 
 cated case, and one full of legal difficulties. It 
 seemed to me, however, that he had a fair prospect 
 of success, and as he was unwilling to make any 
 other arrangement I concluded to accept his terms. 
 The case was tried before Judge Noah Davis, one 
 
474 LANDMARKS OF A LAWYER'S LIFETIME 
 
 of the best judges ever upon the bench in this State 
 as referee, after his retirement from the bench. , 
 He also found the case one of doubt and difficulty 
 and he expressed to me subsequently that it was with 
 much reluctance that he gave a decision in our 
 favour. My client then revealed to me, for the first 
 time, why he was unwilling to incur any expense, 
 and was so liberal in goiug halves. It seems that 
 he had already presented his case to a firm of law- 
 yers, his regular counsel, who had given it careful 
 examination and decided that he could not succeed. 
 The case was defended by one of the best insurance 
 lawyers whom I have ever met, Judge A. H. Sawyer, 
 of Watertown, New York. He was, of course, 
 greatly surprised at Judge Davis' decision and im- 
 mediately appealed the case to the General Term of 
 the Supreme Court, by whom the judgment was af- 
 firmed. Our troubles, however, were not over be- 
 cause a further appeal was taken to the Court of Ap- 
 peals, and before that tribunal it was sure to receive 
 a most careful and critical examination. At that 
 time Alton B. Parker was Chief Judge of the Court 
 of Appeals, and as sometimes happens in every law- 
 yer 's experience, my argument seemed to go entirely 
 wrong, and to be absolutely unconvincing. It was 
 with great discouragement that I returned from Al- 
 bany, but the Court, after holding the case under 
 advisement for a long time, affirmed the judgment of 
 the courts below, and my client and I halved the pro- 
 ceeds. Later on, at a reception which was given by 
 the Bar Association, I happened, glancing up, to 
 meet the eye of Chief Judge Parker, who was smil- 
 
FEES EEGULAR AND CONTINGENT 475 
 
 ing at me, evidently desirous of telling me something. 
 Approaching him, he grasped my hand in his usual 
 hearty way and whispered in my ear : ' ' Strong, you 
 don't know how narrowly you escaped being beaten 
 in that insurance case," and as Judge Parker had 
 written the opinion I felt sure that he knew what he 
 was saying. This case will be found reported under 
 the title of DeWitt v. Agricultural Insurance Com- 
 pany (157 N. Y., 353). 
 
 This whisper after the event, suggests one before 
 the event in a litigation in England, involving the 
 title to a considerable estate. A gentleman, having 
 been in possession of an estate for a long time, his 
 title was attacked by a collateral relative claiming 
 inheritance and right to the possession of the prop- 
 erty, by reason of the provisions of a will forming 
 a link in the chain of title. The result was a litiga- 
 gation, the landlord in possession refusing to con- 
 sider compromise. The first decision was against 
 the claimant, but an appeal having been taken, the 
 case was elaborately argued by distinguished law- 
 yers before a bench of five judges. It then became 
 apparent that the point involved was one not free 
 from doubt, but notwithstanding this the occupant 
 declined to consider the subject of compromise until 
 one day he attended a social function at one of the 
 great houses, when one of the Appellate Justices, 
 with whom he was acquainted, happened to be pres- 
 ent. Each of them recognised the impropriety of 
 personal intercourse before the case was decided, but 
 they were brought together by chance, and greeting 
 each other pleasantly the learned justice leaned for- 
 
476 LANDMAEKS OP A LAWYER'S LIFETIME 
 
 ward and whispered in the ear of the other : ' ' Agree 
 with thine adversary quickly while thou art in 
 the way with him," and then passed along. The 
 occupant heing keen enough to appreciate the sig- 
 nificance of the remark, proceeded at once to his 
 sohcitor, and entered upon negotiations for a 
 settlement which was finally brought about at some 
 sacrifice, and his title secured. The Court, not being 
 advised of the settlement, rendered its judgment 
 favouring the adverse claimant, and but for the sig- 
 nificant whisper the occupant would have lost his 
 estate. 
 
 The cases to which I have referred were excep- 
 tional, growing out of circumstances not dissimilar 
 to those which induce lawyers generally to let their 
 fee depend on the result. Making it a business to 
 undertake cases upon a contingent basis should be 
 discouraged. Undertaking business of this charac- 
 ter, except under special circumstances, will have an 
 unfavourable effect upon a lawyer's practise, espe- 
 cially the young practitioner, who will soon find that 
 his practise is being built up on cases of contingent 
 fees with a consequent decline in professional stand- 
 ing. Proper regard for legitimate professional 
 methods is the expectation of a reasonable com- 
 pensation for services rendered, in which the result 
 secured should have due consideration. 
 
CHAPTEB XXm 
 
 THE LAWYER'S RECREATIONS 
 
 I BELiEVB it will be acknowledged that there has 
 been no more noticeable or, in fact, beneficial 
 evolution in the life of the lawyer admitted forty 
 years ago, than in the recreations afforded. Es- 
 pecially is this true of those practicing in the large 
 cities where the need of open air exercise is so ap- 
 parent. In small cities, and in rural communities, 
 the lawyer could find his out-door recreation in his 
 garden, on his farm, behind his roadster, in his 
 tramps through the neighbouring woods or along 
 the streams furnishing sport with rod and gun. 
 The treadmill existence of the New York lawyer, 
 and the want of the open-air opportunities of his 
 rural brothers, confined him almost entirely to pere- 
 grinations down Broadway to his office, and up 
 Broadway again to his home, unless he sought mus- 
 cular exercise in the various gymnasiums. But the 
 period of development of out-of-door sports, avail- 
 able to the city lawyer, was near at hand. Perhaps 
 an explanation of this may be found in the fact that, 
 during the period of the war, the young men of the 
 country were with its armies on the battle field, and 
 it was not until their return to the pursuits of peace, 
 and the growth to young manhood of those who were 
 children at the beginning of the conflict, that ath- 
 letic contests and out-of-door games received much 
 attention. 
 
 477 
 
478 LANDMARKS OF A LAWYER'S LIFETIME 
 
 Tkere had been a few aquatic contests between 
 Yale and Harvard in rowing, crude and unscientific, 
 but they opened the door to those great events which 
 in later years have extended to almost every college 
 where a sheet of water is to be found, and com- 
 mand the attention and interest of the entire coun- 
 try. In England the varsity crews of Oxford and 
 Cambridge had included some of the greatest men 
 of the bar, and this was to be true, also, of our own 
 oarsmen in the crews of Yale and Harvard. Among 
 them during the last forty years will be found many 
 names recognised at once as those of learned jurists, 
 and successful men of other professions. I recall 
 now a presiding justice of one of our appellate tri- 
 bunals who, in his college days, in the same boat with 
 another class mate, a successful member of our bar, 
 pulled an oar for two successive years in two of the 
 best crews that Yale ever had. Venerable lawyers, 
 now nearing seventy, with those who have followed 
 in their train look fondly back to those days of their 
 youth, when on the Charles at Cambridge, or the 
 Harbor at New Haven, or on the Hudson or Har- 
 lem, they were learning as lawyers in embryo those 
 lessons of co-operation with others, and of endur- 
 ance and grit which are the essentials of every well- 
 trained lawyer. They were in training for the 
 strenuous contests of the forum, to be able, as Kip- 
 ling says, in his fine poem "If," to 
 
 "... force your heart and brain and sinew 
 To serve your turn long after they are gone, 
 And still hold on when there is nothing in you 
 Except your will to say to them, hold on." 
 
THE LAWYEE'S RECEEATIONS 479 
 
 Whenever the great race occurs in New London, 
 or on the Hudson, there will be found among the 
 throng shouting the loudest the lawyer-oarsmen of 
 earlier days, while the love of aquatic sports en- 
 gendered in the student days will play an important 
 part in the strenuous activities of after life. 
 
 Then again baseball, as we know it, had its ad- 
 vent about 1860. How the present game developed 
 is a mystery, difficult to explain. There was noth- 
 ing like it before, except in that primitive game 
 where a soft ball was used, which, when fielded, was 
 thrown to hit the runner and put him out. Every 
 baseball player will, I am sure, offer homage to the 
 brain that conceived the remarkable game as it is 
 now played. It was bom just before the war, and 
 it was bom full-grown. With the evolution of the 
 game its requirements have been made stricter and 
 it now calls for more scientific skill, but in its es- 
 sential features the game remains the same as when 
 that remarkable team known as "The Excelsiors," 
 with its famous pitcher Creighton, made a tour of 
 the cities and introduced the novices to a scientific 
 exhibition of what is now our National Game. Of 
 course, this wonderful game appealed at once to the 
 collegians, and it became the craze everywhere. 
 Lawyers took it up, except those whose muscles 
 were stiffened by age. At its introduction, and for 
 years afterward, it was a gentlemen's game, and 
 played for the pure love of it. From that time on 
 the sons of these veterans of the "diamond" have 
 "walked in the ways of their fathers." 
 
 As in the case of the oarsnjen, so on the baseball 
 
480 LANDMARKS OP A LAWYER'S LIFETIME 
 
 teams of the various colleges, during the last forty 
 years, may be found the names of judges and law- 
 yers of distinction. I am told an old baseball 
 player occupies a seat on the bench of the Supreme 
 Court of the United States, and I know a presiding 
 justice of the Appellate Division who in his time was 
 one of the most accomplished "twirlers," that is, 
 pitchers. Another prominent lawyer whom I know 
 used to pitch on the Yale team, another was a Yale 
 catcher during the four years of his college life 
 and no baseball enthusiast of twenty years ago can 
 have forgotten that successful lawyer, John M. 
 Ward, whose fine pitching and daring base running 
 on the Providence League team, the champions of 
 the United States, made him almost a national char- 
 acter. As often as I meet two of our prominent law- 
 yers, one of whom has borne a conspicuous part in 
 the philanthropic life of our city, I am carried back 
 in mind to the days, more than forty years ago, when 
 each of us "held down" places on one of the vaca- 
 tion "nines" in a prominent locality on Long Island. 
 For all veterans of the bat and ball there is no 
 game that will be able to supplant it in their affec- 
 tionate interest. The nine innings are just long 
 enough to make one want more. Each minute is 
 one of action. The swift-pitched ball, the handling 
 of it by the catcher, the accuracy of his throws to 
 the bases, the clean hits, the neat "pick up" by the 
 fielders, the beautiful "throw in," the graceful run- 
 ning catch of the long fly-ball — it is no wonder that 
 the game should attract the thousands and tens of 
 thousands who throughout the country are its de- 
 
THE LAWYEE'S RECREATIONS 481 
 
 votees. Of this large number many are unable to 
 appreciate tbe difiBculty in playing the game. Every- 
 body who understands the game, whether they 
 have played it or not, likes to watch it, just as they 
 would enjoy a theatrical performance, but unless 
 they have played it they cannot really appreciate it. 
 It takes the one who has faced the pitcher, bat ia 
 hand, or has attempted to catch or pick up the swift 
 ball, or filled a position on one of the bases, or gath- 
 ered in the high "fly," and who bears on his finger 
 joints the marks of the ball, to know what it really 
 means to play baseball, and to have a just apprecia- 
 tion of the scientific skill which makes a game of ball 
 interestiag to watch. 
 
 This appreciation of the game and of the science 
 required to play it leads hundreds of lawyers in the 
 city and thousands throughout the country to in- 
 dulge in the recreation of watching the game. From 
 the opening of the season in April, until its close ia 
 October, the lawyer spends an occasional afternoon 
 watchiBg the play of his old pastime, and at some 
 thrilling play he will shout with the loudest. It 
 takes his thoughts out of the rut, and it not only di- 
 verts him for the time being, but he lives over again 
 the contests of his college days, when he was one of 
 the principal actors on the diamond. Almost any 
 day at the Polo Grounds during the baseball season, 
 will be found some of the judges, and a large num- 
 ber of the bar, of whom it might be said that if you 
 scratch the surface of a lawyer' you will find an old 
 baseball player. Baseball is recognised, of course, 
 as our national game, and though from a practical 
 
482 LANDMAKKS OF A LAWYER'S LIFETIME 
 
 standpoint it has long been relegated to the profes- 
 sionals, except by the embryo lawyers during their 
 days in the university or in the law school, yet those 
 who have once played it always love it. They view 
 the game now from the standpoint of an exhibition 
 of professional skill. 
 
 Then again, about 1875, tennis made its advent on 
 this side of the water to further divert the disciple 
 of the law from his briefs. The beauty and the skill 
 of the game, its attractive surroundings, including 
 in its votaries the feminine element, the luxurious 
 club house, the absence of professionalism, and the 
 convenient way in which it lends itself to two players 
 or four, in singles or doubles, soon made it a prom- 
 inent and successful rival of baseball. In tennis, 
 lawyers young and old have for years found recrea- 
 tion wherever a little plot of ground could be had 
 large enough to lay out a tennis court. The ranks 
 of the law are filled with tennis players. I recall a 
 day about twenty years ago, during the annual ten- 
 nis tournament at Newport, when one of our well- 
 known lawyers, then in embryo, met as an opponent 
 one of the two principal tennis players of the day. 
 It was a gruelling struggle, and no one present could 
 but admire the perseverance and grit which carried 
 our brother of the bar through the long contest and 
 brought him out a winner, as in later contests the 
 same qualities have made him a winner in his chosen 
 profession. 
 
 But when the muscles become a little stiff, the 
 breath a trifle short and the agility of youth has in 
 a measure departed, the lawyer finds refuge in that 
 
THE LAWYER'S RECREATIONS 483 
 
 ancient and honourable game of golf which, by a 
 fascination not altogether strange, attracts to its 
 ranks lawyers innumerable, from the president of 
 the United States, and the dignified justices of the 
 Supreme Court of the United States, to judges of 
 lesser degree and distinguished lawyers in throngs, 
 whose delight it is on Saturdays and holidays, and 
 whenever they can snatch an afternoon and all 
 through their vacations, to be found upon the golf 
 course assiduously pursuing the elusive "pill," all 
 dignity laid aside, coatless and with sleeves rolled 
 up, and a broad brimmed hat, hoping for a low score 
 at the next hole. Judicial temper, bad enough in the 
 court room but worse on the golf links, often loses 
 itself, and gives voice to expressions not permissible 
 in the presence of the Court, nor such as could be 
 used in the company of ladies. Hope gives way to 
 despair, all sorts of conflicting emotions arise, and 
 the game is one of vicissitudes, but with all its ups 
 and downs, its alternations of hope and despondency, 
 its encouragement and despair, it fills a large place 
 in the legal mind, and is a boon to the brain-weary 
 lawyer. 
 
 The close-confined and busy city lawyers have, 
 during the past thirty years, taken advantage of the 
 splendid facihties afforded by the bridle paths of 
 Central Park to indulge in equestrian recreation, 
 which fine pleasure was, before that time, cultivated 
 apparently by few lawyers. The increase in num- 
 bers has been marked, and in the early morning 
 hours before going to business, when the park is 
 free from vehicles, there may be found lawyers in 
 
484 LANDMARKS OF A LAWYER'S LIFETIME 
 
 considerable nmnbers astride well-groomed steeds, 
 and, in communion witli nature, breathing in the in- 
 vigorating morning air, preparing themselves phy- 
 sically for the intellectual labours before them. The 
 growth of the city and the consequent removals of 
 lawyers from their residences down town to the up- 
 per part of the city in the vicinity of the park, have 
 doubtless been important factors in inducing the 
 cultivation of this form of recreation. 
 
 There also has been a growing tendency among 
 the lawyers to seize every opportunity to get "back 
 to nature" and "hold communion with her visible 
 forms" and listen to her "as she speaks a various 
 language." For this purpose there is nothing like 
 camp-life deep in the heart of the primeval forest, 
 "where the murmuring pines and the hemlocks, in- 
 distinct in the twilight, stand like Druids of eld"; 
 the tent pitched on the margin of some picturesque 
 lake or river, with a guide that is a genuine son of 
 the forest, acquainted with all its mysteries and 
 manifold life. Out of reach of ordinary communica- 
 tion, and the demands of insistent clients, he finds in 
 the joumeyings in his canoe, or in penetrating the 
 forests, or in sport with rod and rifle, nature 's best 
 restorative, and returns to his tasks with a super- 
 abundance of buoyant energy and hope. The in- 
 creased facilities of travel to distant and unfre- 
 quented localities, unspoiled by the "onward march 
 of civilisation"; the opening up of new haunts 
 of game, and of rivers and lakes abounding ia 
 the finny tribe, have proved an irresistible at- 
 traction to an ever-increasing number of lawyers 
 
THE LAWYER'S RECREATIONS 485 
 
 whose annual vacations have been spent in the pur- 
 suit of large game in the West, or in calling the 
 moose in the forests of Maine and New Brunswick, 
 or in the hunt of the caribou in Canada and New- 
 foundland, or may be in casting for trout or sal- 
 mon. The remarkable evolution which has taken 
 place in the rifle and shot-gun, and in trout and sal- 
 mon rods and fishing tackle generally, contributing 
 enormously to the pleasures of the forest and 
 streams, have, with the beauties of nature, and the 
 pursuit of game life, proved an unceasing attraction 
 to the legal fraternity, furnishing physical and men- 
 tal restoration, and a delightful recreation. 
 
 A large number of lawyers, whose early lives have 
 been spent in rural communities, but have sought 
 the city as a field of practice, and many of their 
 city-bred brethren as well, develop towards mid- 
 dle-life a great longing for rural surroundings — the 
 generous acreage, the house of liberal dimensions, 
 the live stock, the poultry, the vegetable garden, and 
 the flower garden planned and superintended by 
 the wife. The desire to "buy and build" quite 
 likely proves irresistible, and those who gratify it 
 learn, as Mark Twain did, how to build a $30,000 
 house on a $20,000 piece of land at a cost of $100,- 
 000, and how it would have cost more if the plumber 
 had only known that there was $300 left in the bank. 
 The "country place," while its novelty lasts, un- 
 doubtedly furnishes to many a weary and heavy- 
 laden lawyer, rich opportunities for rest and recrea- 
 tion among the attractions of country life, in the de- 
 lightful week-ends and restful vacation days, and to 
 
486 LANDMARKS OF A LAWYER'S LIFETIME 
 
 true sons of the soil, this will be permanent. Upon 
 these the cares and vexations of the country place 
 do not weigh heavily but, to others, after the novelty 
 has departed, the constant drain of dollars, the 
 morning departure, with an over-burdened mind 
 charged with commissions from the gardener or the 
 household, to execute which must be devoted golden 
 moments of the day, and upon return at evening be 
 met with news of an ailing chicken or a break in the 
 plumbing, present cares in themselves trivial but 
 in the aggregate considerable, which were not reck- 
 oned with as a part of the rural experiences. To 
 these cares must be added the more formidable re- 
 sponsibilities of securing capable employes, the 
 spring planting, the pruning of trees and shrubbery, 
 the care of the grounds, the preparations in the au- 
 tumn for winter, and the necessary repairs and im- 
 provements. It then becomes a question whether the 
 pleasures of the "country place" so far outweigh its 
 cares and responsibilities as to make it a source of 
 recreation, or merely a modus vivendi. 
 
 Since the time of my admission to the bar another 
 great avenue of vacation recreation has been de- 
 veloped — the holiday trip to Europe. Before that 
 time comparatively few lawyers had been on the 
 other side of the water. Of course, during the 
 period of the war, it was hardly thought of, but soon 
 after its close, the lines of steamers multiplied, and 
 soon, with the advent of increased facilities and 
 quick passages to-and-fro, the month's vacation ad- 
 mitted of a trip, abroad, with two weeks on the other 
 side, and the recreation thus afforded has become 
 
THE LAWYER'S RECREATIONS 487 
 
 with many lawyers an annual occurrence. Surely 
 no more important and pleasurable development in 
 recreation facilities has manifested itself within the 
 past forty years than that of the delightful days on 
 the ocean steamer in its quick passage to Europe, 
 opening up multitudinous ways of gratifying indi- 
 vidual tastes of every description during a brief so- 
 journ. 
 
 For a few years the bicycle furnished recreation 
 to many lawyers, but it was short lived. So long as 
 the automobile was unknown, or in its experimental 
 stages, the bicycle filled a large place in the lawyer's 
 outdoor life, but with the introduction of the auto- 
 mobile it soon lost favour and was practically aban- 
 doned. Now it is the afternoon run, or the tour of 
 a week or two in a well-equipped car that is a fre- 
 quent source of recreation, and such it will probably 
 remain imtil some newer and more exciting form of 
 transit on earth, sea or air, quite likely the aero- 
 plane, shall attract attention and furnish a more 
 novel form of diversion. 
 
 Thus, thanks to the athletic spirit of the age, 
 the modem facilities of travel, and the remarkable 
 development of motor vehicles, adapted as well to 
 the pursuit of pleasure as to the ordinary uses of 
 every day life, the lawyer is given generous facilities 
 for diversion in forms of open air recreation, afford- 
 ing not only genuine pleasure but physical and men- 
 tal health and vigour. 
 
 Few of the busy lawyers have much opportunity 
 for recreation between October and July. With 
 some their work is their play, as illustrated by the 
 
488 LANDMARKS OP A LAWYER'S LIFETIME 
 
 reply of one of our leaders of the bar to a friend, 
 who had inquired why, having reached his time of 
 life, he did not retire. The reply was that he did not 
 know how he could get more fun than by practicing 
 law. With most lawyers it is different. I think they 
 get satisfaction out of it, but not much real fun. 
 Their days, and more often than not their evenings, 
 are devoted to hard work. Their social life at din- 
 ners and other society functions is generally under 
 protest. An occasional evening at the theatre, opera 
 or concert, may afford some diversion, but imless 
 there is something outside of these the lawyer's life 
 during the busy season is mostly one of all work and 
 no play. 
 
 To the lawyer whose early education has not been 
 neglected, a game of billiards at his club in the late 
 afternoon on his way up-town, or for an hour in the 
 evening, is not only a most agreeable diversion, but 
 a very pleasant form of exercise. It is rare, how- 
 ever, that sufficient skill is acquired late in life to 
 make the game, as it is now played, interesting. 
 Those of the older members of the bar who have ac- 
 quired any degree of facility will probably be thank- 
 ful that all of their youthful hours were not devoted 
 to study, but some of them to the cultivation of this 
 interesting game. This is rank heresy, of course, 
 but, if the hours which they gave to it were not at 
 the expense of college duties faithfully performed, 
 they will indeed be thankful that their education in 
 the game was not neglected. Professional eminence 
 is by no means inconsistent with this gentle and 
 pleasing diversion, for do we not know that even 
 
THE LAWYER'S RECBEATIONS 489 
 
 svLdh. a great philosopher as Herbert Spencer in- 
 dulged in it, and of whom it is related, that, happen- 
 ing to be in a billiard room of a hotel where he found 
 himself with some unoccupied time, and feeling dis- 
 posed to a game, approached an agreeable young 
 gentleman and engaged him as an opponent. They 
 made the usual "bank" to decide which would have 
 the first stroke, and his opponent won. The play 
 then proceeded, with the result that his opponent, in 
 his first inning, ran out the entire game. Mr. Spen- 
 cer, putting up his cue without having had a single 
 opportunity to play, remarked in a sedate way, "my 
 young friend, your remarkable proficiency in the 
 game of billiards betokens a youth of wasted hours." 
 A prominent lawyer remarked while playing, "they 
 used to chide me in my earlier years for devoting so 
 much of my time to billiards, but if they now saw 
 how much pleasure and diversion I am getting out 
 of my early education in it, I am sure they would 
 change their opinion." 
 
 There are few games which have been more re- 
 markable within the past thirty years in developing 
 scientific play. The six-pocket table of my college 
 days has been abandoned in playing the game as it is 
 now played, and is relegated to either fifteen ball 
 pool, or to that simple and rollicking game known as 
 cowboy pool. The development of scientific skill 
 called for something more difficult, first producing 
 the four pocket table, and then the no-pocket table, 
 then the fourteen inch balk line and finally the eight- 
 een inch balk line. In almost all the clubs, in the 
 late afternoon, will be found a billiard playing 
 
490 LANDMARKS OP A LAWYER'S LIFETIME 
 
 coterie, and included in it a generous sprinkling of 
 lawyers. TMs is equally true of the Century As- 
 sociation whose billiardists include men of brilliant 
 minds and eminent achievement. 
 
 One of the differences between the Century and 
 all other clubs is that in other clubs you may wear 
 your hat with impunity, but in the Century you may 
 never do so. Just as you may never wear your hat, 
 so you may never "talk shop." There is no stock 
 market there, no law, or theology, or medicine, 
 or engineering, or business, although each of these 
 elements will be well represented. There is just 
 that friendly badinage, that cheerful gossip, that 
 play of wit, that easy and familiar intercourse, 
 which pass quite naturally "from grave to gay, 
 from lively to severe." It removes the cobwebs 
 from the brain, care from the heart, gloom from the 
 soul, and lifts one out of the world of materiality and 
 perplexity, and brightens and illumines those who 
 enjoy its intercourse. Its membership is composed 
 of three classes which may be characterised as fol- 
 lows : The first and the largest includes those who 
 rarely visit the club, but are proud to be known as 
 members, and who, as described by one of its 
 habitues, bear the same relation to the club that 
 the "dunnage" does to a ship, giving it the support 
 necessary to pursue its onward course. The second 
 is made up of those who attend the monthly meet- 
 ings, and an occasional Saturday night, and get the 
 benefit of its more formal social intercourse. The 
 third is composed of those who enter into intimate 
 relations with it, to such an extent that its tradi- 
 
THE LAWYEK'S RECREATIONS 491 
 
 tions, customs, and associations become interwoven 
 with their everyday life. To these it is a haven of 
 rest, a refuge from the weariness and distractions 
 of everyday pursuits, as also on those rare occasions 
 when "a man's foes are those of his own household." 
 The different sets of the Century possess their spe- 
 cial attractions, and are never exclusive, hut always 
 welcome the newcomer. Others of these sets may 
 be as agreeable, but I am sure none more so than 
 that which assembles each afternoon in the billiard 
 room to manipulate the ivories. 
 
 Here with cue in hand or forming part of the gal- 
 lery might be seen an array of prominent artists, 
 lawyers, doctors, theologians, educators, editors, 
 architects, engineers, publishers and distinguished 
 business men, who lay aside their dignity, and for- 
 get their burdens and their cares, and take on the 
 vivacity and exuberance of youth. I hope it will 
 not be considered a breach of confidence to say that 
 among them I have found Presidents Hadley of 
 Yale and Butler of Columbia, U. S. Senator Spooner, 
 Chief Judge Parker and his former associate Judge 
 Gray of the Court of Appeals, Judges Patterson 
 and O'Brien of the Supreme Court and Judge 
 Holt of the United States District Court, Charles R. 
 Miller of the Times and his beloved associate, Ed- 
 ward Gary; Eollo Ogden of the Evening Post; the 
 author and critic, William C. Brownell; the edu- 
 cator and historian Prof. William M. Sloane; 
 the renowned naturalist and father of the Museum 
 of Natural History, Dr. Daniel G. Elliott; Great 
 Britain's consul in New York, Sir Percy Sander- 
 
492 LANDMARKS OF A LAWYER'S LIFETIME 
 
 son; tlie eminent alienist Austin Flint; sucli archi- 
 tects as William E. Mead, Walter Cooke, Eobert H. 
 Eobertson and Cass Gilbert; the pbilosopher-arcM- 
 tect, Henry Eutgers Marshall, and I have also seen 
 one of the most noted of the railroad presidents of 
 our time, whose figure did not admit of conveniently 
 reaching with his cue a distant ball, repose his am- 
 ple front upon the table and with heels extended 
 from the floor, contrary to all the rules of the game, 
 execute, or probably fail to execute, his intended 
 play; and almost nightly one of our most distin- 
 guished physicians, whose name is well known as 
 indicative of learning, may be seen, at his advanced 
 age, stretching his figure on the table, with one foot 
 on the floor, and the leg of the other projected 
 along the rail in the most approved style of the pro- 
 fessional, to enable him to execute with scientific 
 accuracy some difficult play. Just read that tender 
 poem of Oliver Wendell Holmes entitled "The 
 Boys," beginning: 
 
 ' ' Has any old fellow got in with the boys, 
 If there has put him out without making a noise." 
 
 and you will faintly appreciate the attractions and 
 associations of the billiard room set. 
 
 It was to these surroundings that Thomas B. Eeed 
 was eagerly welcomed soon after he forsook the 
 councils of the nation, and made his appearance 
 in New York. His eminence as a public man, his 
 prominence as a legislator in Congress, his dis- 
 tinguished service as Speaker of the House of Eep- 
 resentatives, where he won the title of "Czar," and 
 
THE LAWYER'S BECREATIONS 493 
 
 his position before the people as a candidate for the 
 Presidency, aside from his merits as a lawyer, made 
 him a most interesting figure. It was delightful to 
 see him, his great form surmounted by his perfectly 
 bald head, his smooth and somewhat boyish face, his 
 almost elephantine tread, and a roll like that of a 
 Maine skipper, as he pursued his way around the 
 table. How unlike a "czar" he was, how gentle, 
 kindly and gracious, how simple-hearted and unas- 
 suming, and what boyish interest he felt in his play, 
 and with it all, there was his Maine drawl, and his 
 occasional scintillations of wit, akin to the instance 
 when Mr. Springer of Illinois in the House of Rep- 
 resentatives exclaimed "Mr. Speaker, I would rather 
 be right than president," and the "czar" replied in 
 his long drawl: "Well, there is no danger of the 
 gentleman being either." He had an amusing ex- 
 pression of countenance when he had made a satis- 
 factory shot, looking about the room with a most be- 
 nignant expression of coxmtenance, and a sly twinkle 
 in his eye, and, seemingly soliloquising, drawl "th-a-t 
 was ve-ry cha-a-aste. ' ' I can see him now as he stood 
 one evening amid the festivities of New Year's Eve, 
 an interested and delighted spectator, but a spectator 
 only because his ponderous form lacked the requisite 
 agility to tread the mazes of the Virginia reel. 
 But as the clock struck twelve, and the assembled 
 members joined hands in forming the great circle 
 extending from one room to another, moving along 
 and swinging hands as they sung the strains of 
 "Auld Lang Syne," he, joining with them, found 
 himself perfectly at home. His association with us 
 
494 LANDMARKS OF A LAWYER'S LIFETIME 
 
 was all too brief, for the reaper intervened and re- 
 moved him from our sight, but the recollection of 
 his imposing personality, his kindly intercourse, his 
 enlivening wit, his racy descriptions of men and 
 things in public life, have become a part of the 
 traditions of the billiard room, and form a part of 
 its most treasured memories. 
 
 While the modern lawyer owes much of his rec- 
 reation to the development of out-door sports, and 
 especially to those three products of the last thirty 
 years among us, baseball, golf and tennis, there 
 is another phase of his recreation which is not to 
 be forgotten. For if the lawyer is, as he has the 
 reputation of being, a lover of books, he will, like 
 Chief Justice Marshall, find in novels, or better still 
 by combining them with books of biography and 
 reminiscences, abundant recreation; and if, like Mr. 
 Justice Story and Mr. William Allen Butler, he has 
 the gift of poesy, or like our beloved associate, Mr. 
 Adrian H. Joline, can produce such charming books 
 as his "Eambles in Autograph Land," and "At 
 my Library Table," or, like Mr. Frederick TreA'^or 
 Hill and Mr. Arthur C. Train, write so entertain- 
 ingly about the law, or if he has cultivated, if he 
 fortunately possesses it, the gentle gift of music 
 with which to dispel his weariness and care, his life 
 as a lawyer will be full of that recreation which is 
 best worth while. 
 
CHAPTER XXIV 
 
 MEMORIES OF THE COURTS 
 
 Judges, jurors, witnesses and clients are by no 
 means the only individuals with whom the court 
 lawyer must reckon in his court room experiences. 
 It makes a great difference whether the court of- 
 ficers — the clerks, the oflScers in charge of the jury, 
 the door-keepers and attendants — are for or 
 against. Just as he reckons with them will his life 
 in the court room be agreeable or not, and I may 
 add, indeed, that upon it may depend in part his 
 success or failure. They are important in creating 
 a favourable or unfavourable impression. Whether 
 they look askance, or with the eye of friendliness, is 
 not lost upon the jury whose sympathy one desires 
 to win, and the attitude of the court attaches helps 
 the jury form an estimate of the learned counsel. 
 It therefore behooves him to be on good terms with 
 them. 
 
 These functionaries are a constantly shifting and 
 changing element, but among them is to be found 
 a small percentage of courteous, kindly and trust- 
 worthy men, whose lives have been spent in the ser- 
 vice. Between some of these and the bar strong 
 and enduring friendships are formed, and among 
 them I count several of my best friends. The old 
 policeman, who for over thirty years has served on 
 the third floor of the court house, and whenever he 
 
 496 
 
496 LANDMARKS OP A LAWYER'S LIFETIME 
 
 espies me always arrests me with the grasp of his 
 powerful hand, but never yet except in the warmest 
 friendship; the dear old clerk of Chambers, who for 
 nearly forty years, with unfailing tact, and cour- 
 teous firmness, has dealt with the rudeness and im- 
 patience of older lawyers, and excess of zeal and 
 energy of the younger when submitting their orders 
 to the judges for signature; and that gentle and 
 kindly James J. Nealis who had the look of a "wild 
 Irishman," and at his first appearance, raw and 
 untrained, to discharge the functions of court officer, 
 seemed entirely out of place, but after a time won 
 the friendship, respect and confidence of the bar, 
 and by hard study and persistence became an ac- 
 complished stenographer in one of the parts of the 
 courts, and died respected and lamented by all who 
 knew him; these and such as these lighten the bur- 
 den of the busy lawyer, and make the strenuous life 
 of the court house less oppressive. 
 
 The lawyer of thirty years ago observes, I am 
 sure, a marked change in the orderliness of the ju- 
 dicial proceedings of the present day as compared 
 with the past. Especially is this true of the busi- 
 ness of contested motions and ex parte applications 
 for orders. In the days when a single branch of 
 the court known as chambers was occupied with this 
 business, and particularly on the first and third 
 Mondays of each month when the calendars were 
 called, chambers was packed with a throng of law- 
 yers, some waiting for the call of the calendar, 
 others to make ex parte applications, and then there 
 were parties and witnesses in attendance to be 
 
MEMORIES OF THE COURTS 497 
 
 sworn by the judge in proceedings supplementary 
 to execution or on examination before trial. There 
 was hardly a semblance of order; almost every one 
 standing, a straggling, elbowing mass of humanity 
 endeavouring to submit orders, or have witnesses 
 sworn, or maHng for a place at the front to argue 
 a contested motion. While, of course, there was a 
 great difference between the different judges in 
 their abUity to maintain order, very often the judge 
 would vainly pound with his gavel, vainly would the 
 court officers endeavour to preserve order, and in 
 the midst of it all it was sometimes difficult to under- 
 stand how the patient official whose duty it was to 
 present papers to the judge for his signature, and 
 superintend the swearing of witnesses, and indeed 
 how the justice on the bench, with dignity unruffled, 
 could manage to dispose of the business in hand. 
 
 This condition of things was equally true of the 
 different trial terms, especially on the first Monday 
 of each month, when a new term of the court began. 
 Lawyers, jurors and witnesses filled the court 
 rooms; jurors with excuses; lawyers with applica- 
 tions for adjournments; clerks running to and fro; 
 counsel, parties and witnesses keeping up the busy 
 hum of conversation, presented a scene very dif- 
 ferent from that air of quiet dignity supposed to 
 characterize a court room. Gradually, through a 
 new system, order has come out of chaos, and now 
 with separate branches of the court for contested 
 motions and ex parte business, and with an im- 
 proved method of calling cases for trial, and less 
 latitude in adjournments, with chairs for all and the 
 
498 LANDMARKS OF A LAWYER'S LIFETIME 
 
 rule that all must be seated, "bear garden" scenes 
 of former days have passed away. If one desired 
 an excellent illustration of the vast variety of ex- 
 cuses that could be furnished for adjourning cases, 
 it would only be necessary to attend upon the call 
 of one of these calendars to obtain it. Fertility of 
 resource in this direction was a most enviable ac- 
 complishment among a certain class of lawyers, ap- 
 parently never "ready," whose principal effort 
 seemed to be to "adjourn the case." Ability to of- 
 fer a lame excuse with a perfectly serious counten- 
 ance, and so plausibly as to have it meet with ju- 
 ducial favour, was the result of long experience. 
 Connected with the large offices there was always 
 the calendar clerk whose duty it was to watch the 
 progress of the cases and answer them when called, 
 and who, by long practice in answering cases, and 
 applying for adjournments, could gauge to a nicety 
 the disposition of the judge and the validity of an 
 excuse. I recall one of this class connected with the 
 firm of Beebe, Donohue & Cooke, who by long train- 
 ing and adroitness became renowned at the bar as 
 an expert in obtaining or opposing adjournments. 
 He had few equals and no superiors, and his ex- 
 pert knowledge on this subject became so valuable 
 and extensive that he embodied it in a volume pub- 
 lished many years ago, but now forgotten, entitled 
 "Voorhees on Adjournments." 
 
 It would be strange indeed if the court lawyer, 
 in his frequent attendances in the court house, did 
 not meet with some unusual characters. There is 
 always a number of individuals whose faces soon 
 
MEMORIES OF THE COURTS 499 
 
 become familiar, who are unbalanced mentally, and 
 ever on the alert to air a legal grievance or, may-be, 
 wandering about the courts with a package of 
 papers soiledby the handling of years, under the 
 impression that they have a case which is soon to 
 be tried. This is a melancholy phase of court ex- 
 periences. One of the ill-favoured, although quite 
 likely mentally sound, was John Percy. He was 
 a small grim-visaged lawyer who had been so un- 
 fortunate as to be disbarred. (In re Percy, 36 N. 
 T., 651.) He was pitiful to behold. He had been 
 ably defended by Wheeler H. Peckham before the 
 Court of Appeals in the disbarment proceedings, 
 but without success. Of course he was precluded 
 from practicing for others, but he was constantly 
 in the courts making applications for reinstatement 
 almost always addressed to the discretion of the 
 Court, but which could not be favourably enter- 
 tained. Eeinstatement appeared to be his sole idea 
 and purpose in life. His entire time seemed to be 
 devoted to obtaining it, and he therefore became a 
 familiar figure in the courts until, in process of 
 years, this unfortunate man passed out of sight. 
 
 A very reputable lawyer whom I meet occasion- 
 ally is an illustration of the strength of the attach- 
 ments of city life. He had rendered gallant serv- 
 ice in the war as a Union soldier, serving from the 
 beginning until its close. I can imagine how, in his 
 soldier days, he longed to return to his metropolitan 
 home, registering a vow, quite likely, that if he were 
 ever so fortunate as to see it again, he would never 
 get far from the Bowery. Probably it was this 
 
500 LANDMAEKS OF A LAWYER'S LIFETIMB 
 
 spirit which led him at the close of the war back 
 again to his heloved New York. Nothing could in- 
 duce him to leave it, even for a day. His haunts 
 were its streets, his recreation in Central Park, and 
 he would spend his vacations amid the diversion 
 and relaxation of these surroundings. For twenty- 
 eight years after his return from the war he never 
 left the confines of New York, and although on a few 
 occasions since then he has been compelled to jour- 
 ney outside New York, the occasions have been rare, 
 and he has never willingly departed from it for rest 
 or recreation. 
 
 Then there are the queer firm names of law part- 
 nerships. A combination of three individual names 
 was common, but it was a considerable time after 
 my admission, that a partnership name embracing 
 four individuals existed. This was, I think. Ship- 
 man, Barlow, Larocque & Macfarland. This name 
 was so long that it called forth a witticism from the 
 late Francis N. Bangs, who, having in mind the 
 necessity of folioing the papers to be presented to 
 the court, remarked on hearing the name that it 
 was so long it ought to be folioed. Then there were 
 the odd firm names, such as Yard & Furlong, which 
 at once suggested that Mr. Yard could hardly equal 
 Mr. Furlong, as according to mathematical tables 
 it takes forty yards to make one furlong. There 
 was also the firm of Gallup & Hurry, which, 
 if the name indicated anything, must have been 
 speedy in its methods, and suggested a fair ques- 
 tion as to which was the more conservative of the 
 two, Mr. Gallup or Mr. Hurry, both of them being 
 
MEMORIES OF THE COURTS 501 
 
 evidently bent on arriving at a result in the quick- 
 est possible time. There were also certain names 
 which had a kind of colore officii, such as Brown & 
 Green and White & Black, the latter illustrating the 
 efforts of lawyers "to make black appear to be 
 white." Then another highly reputable and suc- 
 cessful firm, Sewell & Pierce, in its early career 
 adopted a motto printed on a circular band enclos- 
 ing the firm name — vigilantihus non dormienti- 
 
 Unquestionably a noble sentiment is expressed in 
 the maxim "interest reipublicae ut sit finis litium" 
 — it is for the interest of the country that there 
 should be an end of litigation — ^but instead of nearing 
 the end we appear to be farther away from it than 
 ever. The litigious spirit seems to be innate, and 
 the consequence is that instead of diminution there 
 is an increase which the growth in population does 
 not entirely account for. Compare the number of 
 judges forty years ago with that of the present day — 
 in the Supreme, Superior and Common Pleas Courts, 
 in all seventeen judges; since then the number has 
 been doubled. Litigation has increased still more, 
 but it has undergone a great change in character. 
 In earlier days there was a large amount of mercan- 
 tile or commercial litigation, but the formation of 
 mercantile exchanges whose arbitration committees 
 settle disputes between the members, the bankruptcy 
 laws and bankruptcy courts which step in to prevent 
 one creditor gaining advantage over another and 
 the general disposition to make settlements, have 
 caused almost its disappearance. The same is true 
 
502 LANDMARKS OF A LAWYER'S LIFETIME 
 
 of litigation with respect to stock transactions and 
 fire and life insurance controversies. Tlie standard 
 form of fire insurance policy, and adjudication by 
 the courts of almost all questions which can arise 
 under fire and life insurance policies, make liti- 
 gation of this character at the present time a rarity. 
 Besides that, litigation between insurers and pohcy 
 holders was contrary to sound business judgment, 
 and insurance men of foresight soon saw that much 
 more was accomplished by advertising prompt pay- 
 ment of claims, and introducing in life insurance an 
 incontestable policy, which soon had the effect to 
 prevent litigation of this character. 
 
 There were also those numerous questions relat- 
 ing to common carriers of passengers and their bag- 
 gage, as well as in the transportation of merchan- 
 dise. Eights of passengers, and the duties owing 
 to them by common carriers, the efforts of express 
 companies to limit their liability by carefully pre- 
 pared receipts, and to exempt themselves from the 
 consequences of their negligence, were fruitful 
 sources of litigation. 
 
 Then there were the questions connected with 
 negotiable paper, and actions of ejectment and tres- 
 pass relating to real estate, but the settlement of 
 these questions not only by the courts, but by statu- 
 tory enactment, dispenses almost entirely with liti- 
 gations on these subjects. 
 
 The contest of prominent wills was much more 
 frequent down to about twenty-five years ago than 
 subsequently. The contest of such wills as A. T. 
 Stewart's, Commodore Vanderbilt's, Jesse Hoyt's, 
 
MEMORIES OP THE COURTS 503 
 
 Mr. Hammersley's, Governor Tilden's and others, 
 more or less prominent, was of frequent occur- 
 rence. It may be that the cause of the present in- 
 frequency is due to the greater care used by testa- 
 tors in making testamentary dispositions, and by 
 lawyers in safe-guarding against contests. Of 
 course, so long as individuals attempt to draw their 
 own wills, or trust the drawing of them to incom- 
 petent lawyers, or make fanciful and absurd dispo- 
 sitions, or permit a spirit of vindictiveness or 
 resentment to control their testamentary disposi- 
 tions, will contests must occur, and it is therefore 
 true that the Surrogate's Court is inundated by a 
 flood of litigation of this description, chiefly relat- 
 ing to unimportant wills of obscure testators. 
 
 While there has been a great decline in litigation 
 in certain directions there has been a correspond- 
 ing increase in others, and if one takes the trouble 
 to examine the court calendars, it will be found that 
 probably two-thirds are actions of tort, most of 
 which involve negligence of the defendant. Prob- 
 ably the total number of equity cases and of mer- 
 cantile or commercial cases together would amount 
 to not more than one-third of the whole number of 
 the cases on the calendars of the Supreme Court. 
 It is not strange that cases of negligence should have 
 multiplied enormously, for the growth of the city, 
 the development of means of transit, the increase 
 of factories and the use of machinery would quite 
 naturally give rise to cases of this description. 
 
 The tremendous increase in the number of actions 
 for divorce is note-worthy, and the crowded calen- 
 
504 LANDMARKS OF A LAWYER'S LIFETIME 
 
 dar of cases of this class occupies th.e attention of 
 one branch of the court at least one day in the week, 
 and whUe the litigants are engaged in a " speed-con- 
 test" for a dissolution of the marriage tie, there has 
 also been a "speed-contest" between the judges for 
 a "record" of the largest number of divorce cases 
 disposed of at a single session of the court. I do 
 not profess to speak with accuracy, but the best in- 
 formation I have been able to obtain is that on a 
 single day Mr. Justice A. E. Lawrence made fifty- 
 two couples happy, not by uniting them, but by free- 
 ing them from the bonds of matrimony. Assmnuig 
 a court session of the ordinary length, each case was 
 disposed of in less than sis minutes. 
 
 For a long time the large number of litigations 
 instituted by owners of property against the ele- 
 vated railroad company for damages to their ease- 
 ment of light, air and access imposed a heavy bur- 
 den on the courts, but these cases have well nigh dis- 
 appeared. 
 
 Litigated business undoubtedly does not now com- 
 mand the attention which it formerly did of lawyers 
 of the greatest eminence. I do not wish to be under- 
 stood that litigated business does not call for the 
 exhibition of as great ability as formerly, nor do I 
 mean to assert that there is not a considerable num- 
 ber of men distinguished for their ability, and of 
 high standing, who devote themselves to the trial of 
 these cases, and the incomes some of these derive 
 are large. To the lawyer whose inclination tends 
 toward court practice there is unquestionably as 
 much room as there ever was ; but it is equally true 
 
MEMORIES OP THE COURTS 505 
 
 that the great leaders of the bar, such as engaged 
 in that class of business thirty years ago, turn over 
 the litigation of their offices to their juniors, and at 
 the present day are more often, if not altogether, 
 occupied with those great financial interests which 
 are transacted in the privacy of their own offices, 
 and rarely call for their presence in court, and when 
 they occasionally appear it is in connection with 
 great cases of exceptional importance. 
 
 The prime factor in courts of justice for the trial 
 of two- thirds of its litigations is the jury. The 
 quality of the jury is everything. Our jury system, 
 as it prevails in the City of New York, is, I think, 
 defective in this particular. When a jury of real 
 intelligence is desired, recourse is had to a "struck" 
 jury or a special panel. In my opinion the com- 
 plaint among lawyers of the quality of the average 
 juror is justified, and yet with it all jurors are 
 evidently disposed to be honest and fair, and try to 
 arrive at a verdict which accords with the merits of 
 the case, and when they do not it is more frequently 
 from want of an adequate and lucid presentation 
 of the issues of fact, and proper instructions upon 
 the questions of law involved by the judge. The 
 class from which the average jury in our civil courts 
 is taken is the small tradesmen, employes of va- 
 rious descriptions, and humble toilers in various 
 lines of business. Men of wealth, position, influence 
 and intellect are rarely seen, though occasionally 
 prompted by a lofty sense of duty as a citizen some 
 such will be found. But this is less true, I think, 
 of the Federal than the State courts. 
 
506 LANDMARKS 01^ A LAWYER'S LIFETIME 
 
 I believe that any lawyer wlio has had consider- 
 able experience in the trial of jury cases cannot fail 
 to have observed how rarely it is that one of his 
 acquaintances appears on the jury. It is, indeed, 
 calculated to give a lawyer a very humble idea of his 
 importance and position in the community, when in 
 case after case, and year in and year out, he hears 
 the jury asked, are you acquainted with the counsel 
 for the plaintiff or the defendant, as the case may 
 be, and learns that the jurors have never even heard 
 of him. 
 
 With all the defects of jury trial, I am of the opin- 
 ion that on a question of fact involving conflicting 
 inferences, and often moral issues, and the credi- 
 bility of witnesses, it is safer to submit such ques- 
 tions to the decision of a fairly good jury than 
 to that of the average judge. We often hear 
 of the eleven obstinate jurors. I had such a case 
 once, when the eleven obstinate jurors wanted to find 
 a verdict in my favour, but the twelfth juror would 
 not hear of it. When the jury returned into court 
 with a disagreement, the judge was evidently very 
 much annoyed that this juror should hold out, and 
 he proceeded to lecture him and discharge him from 
 further service. The case was tried again, and my 
 client won the day, but an appeal was taken to the 
 Court of Appeals, and that learned court, after ex- 
 amining the evidence, took sides with that poor juror 
 who in the first trial stood out against me and re- 
 ceived the rebuke of the Court, and decided that the 
 evidence did not justify a verdict in favour of my 
 client. I have often wished that I could find that 
 
MEMORIES OP THE COURTS 507 
 
 juror and reverently bow to his superior intelli- 
 gence. 
 
 A judge got himself into trouble once when he 
 undertook to lecture the single dissenting juror. 
 He had charged the jury in a very clear and simple 
 way, presenting the issue and applying the law to 
 the facts of the case with such lucidity that they 
 could not be misled. The jury were out for a long 
 time, and did not agree. They were brought into 
 court and announced their disagreement, and the 
 impossibility of ever agreeing. The judge in some 
 way ascertained that there was a single outstanding 
 juror, and he proceeded to lecture the jury upon 
 their duty, reminding them of the rules laid down 
 in his charge and, in fact, put the matter before 
 them in such a way that it was not diflScult to see 
 that in his opinion the verdict should be for the 
 plaintiff. The jury again retired, and again de- 
 liberated for a long time, and still were at odds. 
 Having reached the conclusion that they could not 
 agree, they returned to the court room and an- 
 nounced the fact. The judge characterised the ac- 
 tion of any single juror standing out against his 
 associates in such a case as being reprehensible, and 
 in discharging them he felt obliged to say to the 
 outstanding juror that he regretted that he should 
 have been permitted to serve, that in so plain a case 
 it was inexplicable how he could be so obstinately 
 and persistently opposed to his fellow jurors, and 
 that he would see to it that he should not be per- 
 mitted to serve in the future. The wretched juror 
 almost collapsed under this rebuke, but he had just 
 
508 LANDMARKS OP A LAWYER'S LIFETIME 
 
 enough vitality left to ask the judge if he might be 
 permitted to say a word. The judge frowned upon 
 him and said "proceed." The juror meekly stated 
 that from the language of the judge's charge he had 
 drawn the conclusion that the verdict should be for 
 the plaintiff, and asked if that was not correct. The 
 judge replied that undoubtedly his personal opinion 
 was that a verdict for the plaintiff would be in ac- 
 cordance with the facts. "Well," said the juror, 
 "I was the only one out of the twelve that agreed 
 with your Honour." 
 
 The value of making an earnest attempt to get a 
 good jury in a doubtful case was illustrated by one 
 of my own cases where a railroad company I repre- 
 sented, was sued by a gentleman for $40,000 damages 
 for being run over by one of its cars, resulting in 
 the amputation of his leg. The case was to be tried 
 in Brooklyn, and Brooklyn jurors were certaialy be- 
 low par. On this particular occasion the juries were 
 empaneled before one of the judges, and then sent 
 into other parts of the court where different judges 
 were to preside at the trials. In a case just before 
 mine a lawyer in examining the jurors as to their 
 qualifications asked one very low class individual 
 whether he could read and write, an indispensable 
 qualification of a juror. He replied that he could 
 not and was excused. I took my cue from this, and 
 when the jurors were called in my case, and were 
 ready to be examined, I asked the foreman of the 
 jury, a very intelligent man, in a somewhat jocular 
 and frivolous way, whether he could read and write. 
 There was a titter in the court room, and he laugh- 
 
MEMORIES OF THE COURTS 509 
 
 ingly replied that he certainly could. Turning to 
 the next juror I said to him with somewhat more 
 seriousness, that having asked the foreman that 
 question I must follow it up and put the question 
 to him. He responded that he could read but not 
 write. He was then excused. By that time the 
 jurors and the judge saw what I was aiming at, and 
 although it may seem scarcely credible, five of that 
 jury lacked the necessary qualifications, although it 
 is due to them to say that they were mostly foreign- 
 ers who had not acquired ability to write although 
 they could read the language. The result of that 
 simple test was to put into the jury box twelve as 
 intelligent men as I could have wished to find, and 
 their own sense of self-respect was evidently in- 
 creased by the realization that, in comparison with 
 the average juror, they were of a superior order of 
 intelligence. I was careful about this jury because 
 I felt that we had good evidence from reliable and 
 trustworthy witnesses, which ought to satisfy the 
 minds of intelligent jurors that my client was not 
 responsible for the awful injury. Well, we tried 
 the case, and the attitude of the jury throughout was 
 marked by a degree of attention, intelligence and 
 desire to do justice that I have rarely found, and 
 while perhaps the resulting verdict for my client 
 may have had some influence upon my estimate of 
 them, I unquestionably felt when they were em- 
 paneled, the greatest confidence in submitting to 
 them my client's rights. 
 
 It has always been the custom, since I was ad- 
 mitted, for counsel for the respective parties to test 
 
510 LANDMARKS OF A LAWYER'S LIFETIME 
 
 the impartiality of jurors by interrogating them 
 upon such points as their acquaintance with the 
 parties and their attorneys, and as to having had 
 controversies of a similar character to that about 
 to be presented, but this practice, which to a limited 
 extent, is not imreasonable, has so far developed 
 that the examination of jurors in civil cases to dis- 
 cover any possible groimd of objection to their serv- 
 ing is now carried beyond all reason. In the coun- 
 try districts it would probably be impossible to find 
 twelve men who did not know one or the other of 
 the counsel, or one or the other of the parties, and 
 it would not be regarded a ground of objection. The 
 real test is whether the juror, on knowing who the 
 parties are and the issue involved, knows of any- 
 thing that would prevent him from doing justice 
 in the case and, under the instructions of the Court, 
 render an impartial verdict in accordance with the 
 evidence. 
 
 As these examinations are now conducted the in- 
 quiry ranges along the line whether he knows either 
 of the parties ; either of the counsel ; what his occu- 
 pation is ; whether he is an employer or an employe ; 
 whether he has ever had or been interested in a 
 claim of a similar character either on behalf of him- 
 self or any other member of his family; whether he 
 has ever served in a similar case ; whether he would 
 be influenced by sympathy or prejudice ; whether he 
 is prejudiced against claims such as the one to be 
 presented; whether he would be governed by the 
 evidence under the instructions of the Court, and 
 whether he would disregard all outside considera- 
 
MEMORIES OF THE COURTS 511 
 
 tions likely to influence his judgment and decide on 
 the evidence alone, and so on, until the juror hardly 
 knows whether he will be allowed to exercise an in- 
 dependent judgment and decide the case on its 
 merits. 
 
 This practice applies particularly to those nu- 
 merous actions founded on negligence defended 
 by street railway companies and the employers' 
 liability insurance companies. It is interesting to 
 listen to an examination by some acute lawyer in a 
 negligence case probing the mental and moral re- 
 cesses of the jury. Probably the rigidity of these 
 examinations, and the toleration of them by the 
 Court, is due to the fact that in recent years jurors 
 have been tampered with, and in some cases in- 
 dividuals known to be favourable to certain corpora- 
 tions, if not actually in the employ of them, have 
 been smuggled into the jury box. Complaints in 
 this direction have occasioned investigations result- 
 ing in a practical substantiation of the charge, and 
 in some cases individuals charged with such offenses 
 have been dealt with severely. I do not remember 
 to have heard until within the last fifteen years of 
 any well authenticated case of tampering with jurors, 
 but the remarkable development of corporations for 
 purposes of city transit, and for insurance of em- 
 ployers against liability for injuries to their em- 
 ployes, each under the management of its own law 
 department, having at its command an army of in- 
 vestigators to work up defenses, procure the attend- 
 ance of witnesses, keep watch of juries and pos- 
 sessing the most approved facilities for using every 
 
512 LANDMARKS OF A LAWYER'S LIFETIME 
 
 possible means of influence capable of being exerted, 
 and resorting to almost every expedient wHch can 
 be devised by human intelligence to defeat claims, 
 is responsible for it. It is, of course, a dreadful 
 thought that any member of the bar should ever lend 
 himself to exert such influence or participate ia 
 such practices, but unfortunately the records of the 
 Appellate Division of the Supreme Court of the 
 First Department bear the saddest kind of testi- 
 mony in this direction, and disbarment has been the 
 consequence. 
 
 Witnesses have been divided into three classes: 
 "liars, damned liars and experts." I do not think 
 that witnesses are often intentionally untruthful, but 
 they differ so much in ability to recollect accurately; 
 their viewpoint differs so widely; the relative im- 
 portance which they attach to facts, the impression 
 facts make on different minds, the power to state 
 exactly what they saw, and to distinguish what they 
 saw from what they did not see, is indeed remark- 
 able, and where there is a difference in the recital 
 of facta based upon observation, this difference does 
 not generally grow out of any intentional misrepre- 
 sentation. Undoubtedly there is a considerable 
 amount of perjured testimony offered in the courts. 
 In many of the cases founded on negligence, to which 
 I have referred, witnesses unquestionably do appear 
 dressed up and carefully coached for the occasion, 
 to state a single fact, whom it is impossible to shake 
 by a cross-examination, but these cases are rare. 
 
 The tendency upon the part of lawyers to prolong 
 cross-examination, and resort to all the tricks of the 
 
MEMORIES OF THE COURTS' 513 
 
 trade in cross-examining, has been marked of late 
 years, although acute trial lawyers of the highest 
 type content themselves with brief cross-examina- 
 tions. Of course, a cross-examination, such as that 
 in the case of Laidlaw v. Sage where Mr. Sage was 
 cross-examined by one of the most eminent men of 
 our bar, is very amusing, and no one could help 
 admire the art and skill with which it was conducted. 
 Mr. Francis L. Wellman, himself an able cross- 
 examiner, gives an excellent account of it in his book 
 on the "Art of Cross-examination." It was un- 
 doubtedly a lively proceeding. Mr. Sage must have 
 writhed while being presented in a very unattrac- 
 tive light to the jury, and the jury, undoubtedly 
 greatly influenced by it, willingly gave the plaintiff 
 a verdict. But the cross-examination, although 
 brilliant, was self-destructive, and defeated its own 
 ends, for when the Court of Appeals came to review 
 the trial in cold type, and in a judicial atmosphere 
 entirely removed from extraneous surroundings, 
 they decided that the cross-examiner was permitted 
 to exceed the legitimate bounds of cross-examina- 
 tion. It is a strong temptation, of course, to put a 
 vulnerable witness in an unfortunate plight, but a 
 jury more often than not has a fellow feeling that 
 makes them wondrous kind, and although in yield- 
 ing to the temptation the cross-examiner may have 
 amused the "gallery" and think he has scored a 
 triumph, he will find that he has scored a defeat. 
 Lack of consideration for a witness was well il- 
 lustrated by the story of Lord Braxfield, probably 
 one of the rudest judges that ever sat upon the 
 
514 LANDMARKS OF A LAWYER'S LIFETIME 
 
 bench. A timid and fearful young woman appeared 
 as a witness and desiring to shun the gaze of those 
 in the court room, wore a veil. Being called to tes- 
 tify she proceeded timidly to the witness stand, and, 
 still veiled, took her place. Lord Braxfield eyed her 
 sternly for a moment and then exclaimed, "noo, 
 young woman, tak doon your veil, put awa all 
 modesty and look me squarely in the face." 
 
 Every lawyer realizes what an awful thing it is 
 to have his case called with no witnesses in attend- 
 ance, and be compelled to proceed without them 
 under the penalty of suffering default. "Witnesses 
 are, of course, the important feature of every law- 
 suit, and while they often make up in quality what 
 they lack in numbers, the value of the presence of 
 a number of witnesses for its moral effect, at least, 
 upon the other side, is not to be despised. Every 
 lawyer can readily appreciate the predicament of 
 the lawyer who, without any witnesses, was forced 
 to try his case, and in the interval afforded by the 
 calling of the jury, happening to notice a friend of 
 his just leaving the court room, trailed by a number 
 of excellent witnesses, approached him with the 
 question, "Brother, is your case off?" "Yes, is 
 yours?" "No, mine is on, and I wish you would 
 lend me your witnesses." 
 
 A witness who deserves to be embalmed in the 
 recollection of any one who has had experience with 
 him is the professional expert. The facility with 
 which expert evidence can be obtained in almost any 
 direction has undoubtedly brought it into such dis- 
 repute that in many jurisdictions it is viewed with 
 
MEMORIES OF THE COURTS 515 
 
 disfavour, and is little regarded. It is wonderful 
 what a variety of medical testimony of a diametric- 
 ally opposite nature can be obtained. Any lawyer 
 wbo has had experience in testamentary cases, and 
 personal injury cases, can easily recall the conflict 
 of opposing medical experts. Experts in patent 
 cases stand by themselves as a professional class, 
 whose superior technical knowledge gives them the 
 right to speak upon the subjects on which they are 
 called, but experts to which I refer comprise those 
 who testify in will contests, land appraisals, cases 
 of personal injury, in which the fee is often contin- 
 gent, and in criminal cases involving a defense of in- 
 sanity. They are sometimes referred to as hired 
 partisans, whom the judges distrust, and the admis- 
 sion of their evidence as the weak spot in the ad- 
 ministration of justice. Instead of a scientifically 
 trained thinker, who puts his knowledge at the serv- 
 ices of the court in an effort to reach the truth, he 
 more often than not bears the same relation to the 
 legal controversy that the lawyer does, as regularly 
 retained because of the opinion he has given in 
 favour of the party who retained him. 
 
 An English judge in a recent case said he dis- 
 trusted this class of evidence because he knew 
 how it was obtained, and illustrated the matter 
 by the case of an owner of property who de- 
 sired to obtain expert evidence of its value. He said 
 that it was a common practice for the owner to ap- 
 ply to half a dozen experts, from three of whom he 
 would receive an unfavourable, and from the other 
 three a favourable valuation, the consequence being 
 
516 LANDMAEKS OP A LAWYER'S LIFETIME 
 
 that tie would pay all of them, hut only call as wit- 
 nesses the three whose opinions were favourahle. 
 This looks somewhat like suppressing testimony, and 
 is certainly not fair to the court, but what shall we 
 say of the instance which the learned judge gives 
 of a property owner who applied to sixty-eight ex- 
 perts before he could find one whose opinion 
 favoured his own estimate. 
 
 After all, everything depends upon honesty, in- 
 tegrity and absolute disregard of every other con- 
 sideration than love of the truth, and when such an 
 expert presents himself, his opinion is everywhere 
 received with the respect and confidence to which it 
 it entitled. 
 
 Occasionally counsel, too impetuous and hot- 
 headed, or neglectful of proper respect for the court, 
 are brought before the judge to answer a charge of 
 contempt. An adroit child of Israel, forgetful of 
 his duty to appear before the court at a certain 
 time, created an impression on the mind of the Judge 
 that he did so contemptuously, and the Judge issued 
 an order for his appearance the following morning. 
 The order was duly obeyed and the Judge called upon 
 him to explain his conduct and purge himself of 
 contempt. The court room was filled and he arose 
 in a very deferential and humble way and addressed 
 the Court in substance as follows: 
 
 "Your Honour has called me before this Bar to 
 explain my conduct and purge myself of contempt. 
 I shall proceed to do so. I recall an occasion not 
 long since when Recorder Goff, now on the bench, 
 was summoned before the court to purge himself of 
 
MEMORIES OF THE COURTS 517 
 
 contempt, and immediately thereafter he was elected 
 Recorder. I also recall the fact that District At- 
 torney Jerome, on a certain occasion, was called be- 
 fore the court to purge himself of contempt, and im- 
 mediately afterwards he was elected District At- 
 torney; and now I am called before this court to 
 purge myself of contempt, and the only question that 
 troubles me is — ^what job, am I to get?" 
 
 This remarkable address, delivered with the pe- 
 culiar accent and intonation characteristic of some 
 of our Jewish brethren, convulsed the Judge and the 
 entire audience, and when supplemented with a few 
 words expressing no intentional disrespect, the in- 
 cident closed. 
 
 If in the domain of phrenology there is a bump of 
 litigiousness there is a wonderful difference be- 
 tween clients in the extent of its development. Liti- 
 gation to some is meat and drink; they are never 
 happy without a lawsuit; they love the atmosphere 
 of courts and law offices and association with law- 
 yers. Others view it with abhorrence and are ready 
 to make any sacrifice to avoid it. Their motto is: 
 "agree with thine adversary quickly," and "if any 
 man will sue thee at the law and take away thy coat, 
 let him take thy cloak also," and, strange to say, 
 there seems to be no middle class between the two. 
 It is a case of "he loves me, or he loves me not." 
 It does not seem, in the one case, to be due to the 
 absence of religious principle, or in the other to the 
 presence of it. Religious principle may not be much 
 developed in either; the controlling motive most 
 likely, is self-interest. It remains for the conscien- 
 
518 LANDMAEKS OF A LAWYEK'S LIFETIME 
 
 tious lawyer to exercise a wise control over both. I 
 recall an individual of high religious profession 
 whose business career has been, involved in numerous 
 litigations, growing out of his business transac- 
 tions, that have engaged the attention of a 
 small army of successive lawyers to whom the vast 
 amount of his aggregate fees must have been a great 
 boon, while the volume of his litigations have made 
 his name a by-word in the courts. I also recall with 
 gratitude a litigant in my early days for whom my 
 father acted, and who after my father's death gener- 
 ously permitted me to take his place. He was di- 
 minutive, lame and frail; he laboured under phys- 
 ical disease which often made his life a burden, but 
 he had an unconquerable spirit of litigation, and ia 
 spite of disability and pain, would trudge up and 
 down the flights of stairs, sometimes assisted by an 
 attendant, and was always ready and eager to in- 
 stitute legal proceedings to enforce his rights. I 
 have often thought that litigation kept bim alive. It 
 gave him something to live for. 
 
 Those who are familiar with real estate transac- 
 tions have probably met with the name John Towns- 
 hend. I knew him intimately and he occasionally re- 
 tained me. He was, I think, born in England, and 
 he had all the punctiliousness and regard for the 
 amenities of the profession possessed by the highest 
 type of English lawyers. He was courteous, refined 
 and cultured, and in his bearing always a gentle- 
 man. He was for years counsel for the New YorTc 
 Herald and its proprietor, James Gordon Bennett, 
 and his long erperience in connection with actions 
 
MEMORIES OF THE COURTS 519 
 
 for libel gave Mm such extensive knowledge in that 
 direction that he produced an admirable work on 
 libel and slander which was long a promiaent au- 
 thority. He was also one of the earliest amxotators 
 of our Code of Civil Procedure, and for years Voor- 
 hies Code annotated by John Townshend was the 
 hand-book of every lawyer. He was himself an ac- 
 complished lawyer and an estimable man. But he 
 was led, how or why I know not, to acquire out- 
 standing interests ia real estate iu New York City. 
 In earlier days conflicting claims to property of this 
 description growing out of unconveyed interests 
 xmder wills, or under the laws of descent, or tax 
 sales or defective foreclosures were frequent, and Mr. 
 Townshend had just the amount of litigious spirit 
 to induce him to acquire these outstanding interests, 
 and by litigation enforce them. It would be interest- 
 ing to know the extent of these litigations, most of 
 which were actions of ejectment, but they were nu- 
 merous, and Mr. Townshend was ever in the courts. 
 I imagine he was a thorn in the flesh of real estate 
 lawyers, but his course of procedure was entirely 
 within the law, and he was very successful. Two of 
 his cases in which I was engaged, Sanders v. Towns- 
 hend (89 N. T., 623) and Masterson v. Townshend 
 (123 N. Y., 458), will fairly illustrate the character 
 of his litigations. In a later case, Townshend v. 
 Frommer (125 N. Y., 446), he made an attack by an 
 action of ejectment on an immensely valuable parcel 
 of real estate in the block bounded by Fourth and 
 Fifth avenues and 76th and 77th Streets, which, if 
 successful, woxild have enriched him, and the learned 
 
520 LANDMARKS OF A LAWYER'S LIFETIME 
 
 and able argument of Judge George F. Danforth in 
 his behalf required all the legal skill and acumen of 
 Judge John F. Dillon to meet it, and the question 
 was so close that it was thought by many that the 
 Court of Appeals had to stretch the law to the ut- 
 most to get rid of this adroit and troublesome suitor. 
 In a still later case in which his wife was plaintiff, 
 Townshend v. Thomson (139 N. Y., 152), the Court 
 remarked: "The plaintiff's title does not appear 
 to be very meritorious, and the Court ought not to 
 be very astute to uphold it." 
 
 Another lawyer having somewhat of this litigious 
 spirit, but in a different way, was Henry H. 
 Morange. He was a very respectable-looking and 
 well-dressed personage, and his appearances in 
 court in his own behalf, as one of the parties to a 
 pending litigation, were remarkably frequent. He 
 never should have been a lawyer, but a client with a 
 "fat roll,"^ and he would then have been a positive 
 benefit to the profession. Being a litigious lawyer, 
 he occupied a good deal of time in the courts airing 
 his own grievances, and if the old adage be true that 
 "he who is his own lawyer has a fool for a client," 
 it would probably have applied with all its force to 
 Mr. Morange. The judges soon became acquainted 
 with his litigious propensities, and as he seemed to 
 be fond of technical objections, making intermediate 
 motions founded mostly on technicalities, instead of 
 proceedLug direct to the trial of the issue involved, 
 he soon grew iato disfavour with the courts. I often 
 used to see him presenting to the court some tech- 
 nical or trivial argument with the result that the 
 
MEMORIES OF THE COURTS 521 
 
 judges grew impatient and petulant and treated Mr. 
 Morange with scant courtesy. The cases of 
 Morange v. Meigs; Morange v. Morange, his own 
 divorce case ; Morange v. Morris ; Morange v. Mudge ; 
 and Morange v. Waldron, being included in the pub- 
 lished reports, are permanent monuments to his lit- 
 igious spirit; but adding to them the considerable 
 number, doubtless, of other litigations hidden away 
 among the records of unreported cases, he was af- 
 forded abundant opporttmity to pursue the practice 
 of his profession, inasmuch as he invariably ap- 
 peared as his own attorney and counsel. 
 
 On an occasion when he was presenting one of 
 his numerous motions, arguing it at considerable 
 length, and being met by a brief, lucid and convincing 
 statement of his opponent, the justice presiding dis- 
 posed of it adversely at once, and turning to Mr. 
 Morange, added: "It would be a pity if you should 
 die, Mr. Morange." "Why, your Honour?" "Be- 
 cause if you should die, you would lose your best 
 client." 
 
 A litigation of no special interest in itself pos- 
 sessed considerable interest for me on account of the 
 personality of one of the litigants and the events fol- 
 lowing his death. On entering my father's office as 
 a student in the fall of 1868, I learned that he had 
 been appointed referee to hear and determine an 
 action against the then merchant prince, Alexander 
 T. Stewart, involving a controversy between him 
 and his partners. He had been sued by the execu- 
 tors of one of the deceased partners for an account- 
 ing of their business transactions, claiming a not 
 
522 LANDMARKS OP A LAWYER'S LIFETIME 
 
 very considerable amount. TMs was followed by a 
 counter-claim by Mr. Stewart wbich. would have 
 overwhelmed the estate of the deceased partner if 
 he had established it. The case dragged along 
 several years and terminated later in a mutual ad- 
 justment. This was the first case, I think, in which, 
 as referee, my father had the assistance of a sten- 
 ographer. 
 
 Mr. Stewart's appearance, as I first saw him, bore 
 every indication of refinement and culture, and it 
 is true that he was liberally educated La the Uni- 
 versity at Belfast, and Trinity College, Dublin. 
 His placid countenance, sandy hair and blue eyes 
 were by no means impressive, and his reserved 
 manner, few words, unassuming and diffident bear- 
 ing, gentle courtesy and exceedingly neat and in- 
 conspicuous garments were by no means indicative 
 of a dominant and forceful personality. It was not 
 until there was an opportunity to look beneath the 
 surface that one would discover the reserved force, 
 intellectual power, keenness of perception, self-pos- 
 session and self-control that easily accounted for 
 his remarkable achievements as the leading mer- 
 chant of that day. To his large store at Chambers 
 Street and Broadway he added what was then con- 
 sidered a monument of mercantile enterprise, the 
 iron building which now stands on Broadway and 
 Fourth Avenue between Ninth and Tenth Streets. 
 This was, indeed, a somewhat spectacular enter- 
 prise, but while under his control was a tremendous 
 success. It was scarcely more spectacular, al- 
 though on a larger scale, than his purchase of the 
 
MEMORIES OF THE COURTS 523 
 
 "Sarsaparilla" Townsend house at tlie northwest 
 corner of Fifth Avenue and Thirty-fourth Street, 
 directly opposite his residence at the northeast cor- 
 ner of Fifth Avenue and Thirty-fourth Street which 
 he was then occupying, demolishing the Townsend 
 house, and erecting on its site a showy marble man- 
 sion which he occupied until his death, and which 
 his wife subsequently occupied until her death, when 
 it was leased to the Manhattan Club, being subse- 
 quently demolished for the construction of the 
 Knickerbocker Trust Company building. His pa- 
 triotism in the days of the war and his ability as a 
 financier were recognized by General Grant on his 
 election as President, by Mr. Stewart's appointment 
 as Secretary of the Treasury in his 'first Cabinet ; 
 but the selection, although from a personal and po- 
 litical standpoint entirely unexceptionable, contra- 
 vened a statute forbidding the appointment of any 
 individual engaged in trade or commerce as Secre- 
 tary of the Treasury, and upon objection by Sena- 
 tor Sumner of Massachusetts it had to be withdrawn. 
 In the litigation referred to, I often saw Mr. 
 Stewart on the witness-stand undergoing cross-ex- 
 amination. The cross-examiner was a lawyer of 
 high standing, but of excessive irritability. Mr. 
 Stewart's placidity and reserve, and the fewness of 
 his words, had the effect of aggravating and excit- 
 ing his cross-examiner beyond all reason; so much 
 so indeed that Mr. Stewart was subjected to slurs 
 and insinuations which might well have called out 
 remonstrance, if not rage ; but through it all he was 
 perfectly self-possessed, and met his adversary with 
 
524 LANDMARKS OF A LAWYER'S LIFETIME 
 
 a self-control that seemed to me truly remark- 
 able. 
 
 At this time and until his death, Mr. Stewart's 
 chief confidential adviser was Henry Hilton, who 
 had served as a judge of the Court of Common 
 Pleas. Judge Hilton was tall and full bodied, with 
 an abundant flow of good nature, geniality, and ex- 
 cellent common sense, but without a profound knowl- 
 edge of the law, although sufficiently well-equipped 
 in that direction to make his advice extremely useful. 
 He was one of the best dressed men I ever knew, and 
 his personality and bearing were as commanding 
 and impressive as Mr. Stewart's were modest and 
 unassuming. Undoubtedly Mr. Stewart leaned en- 
 tirely on Judge Hilton as an adviser. Each day 
 Judge Hilton was accustomed to meet him at his 
 Chambers Street store, and together they would ride 
 in Mr. Stewart's brougham up-town. I often used 
 to see Mr. Stewart's brougham on its way, and I do 
 not remember ever to have seen Mr. Stewart in the 
 brougham without the Judge. This fidelity and as- 
 siduity on the part of Judge Hilton received recog- 
 nition in Mr. Stewart's will by a legacy of one mil- 
 lion dollars, which was afterwards accepted as the 
 purchase price of Mr. Stewart's large and flourish- 
 ing mercantile establishments. This will is one of 
 the traditions of the court. Its admission to pro- 
 bate was a perfunctory matter, but subsequent 
 events showed that almost all Ireland, apparently, 
 claimed kinship with the great merchant. It is a 
 fact that over 2,000 persons asserted claims to re- 
 lationship with him, and Mrs. Stewart was deluged 
 
MEMORIES OF THE COURTS 525 
 
 with applications of all sorts and from all quarters 
 for pecuniary recognition on account of tMs rela- 
 tionship. A considerable number of the letters were 
 published in the newspapers at the time. I am not 
 aware how these various claims were disposed of, 
 but I recall that a family by the name of Tumey 
 were claimants, and instituted a proceeding through 
 one of their number to have the probate of the will 
 set aside, and their attorney in this proceeding was 
 a young lawyer by the name of Elihu Root, who in 
 his subsequent career has won so much distinction, 
 but the Tumeys were unsuccessful, and their peti- 
 tion for a revocation of probate of the will was 
 denied. Nor was this all the litigation which grew 
 out of Mr. Stewart's estate, for after Mrs. Stewart's 
 death (about ten years after the death of Mr. Stew- 
 art) her relatives instituted actions against Judge 
 Hilton which became subjects of fierce litigation. 
 One of the relatives was the wife of the late Pres- 
 cott Hall Butler and quite naturally the firm of 
 Evarts, Southmayd & Choate, in which Mr. Butler 
 was a partner, acted on their behalf, and after some 
 weU-fought forensic contests a settlement was 
 effected, greatly to the advantage of the relatives. 
 Although the death of Mr. Stewart attracted 
 wide-spread attention it was nothing to that which 
 was aroused by the news, within a few weeks after 
 his death, that his vault, connected with "St. Marks 
 in the Bouwerie," had been opened and his body 
 stolen. The details of this horrid deed were, of 
 course, widely spread in the newspapers and it was 
 a theme of universal comment. That the body of 
 
526 LANDMARKS OP A LAWYER'S LIFETIME 
 
 this rich merohant, interred with, obsequies of a 
 most impressive character in his own private burial 
 place, in a thickly populated part of the city, could 
 be stolen and spirited away and held for a reward 
 was beyond ordinary comprehension, and how 
 ghouls could be found to perpetrate the deed was 
 more than extraordinary. But notwithstanding 
 the most diligent and persistent efforts to discover 
 the actors in this scene, or the whereabouts of the 
 body, they proved fruitless, and to this day this 
 skilfully planned and well executed theft of the 
 mortal remains of Mr. Stewart has been shrouded ia 
 mystery. It should be said that the Cathedral at 
 Garden City is reputed to be the last resting place 
 of Mr. Stewart's remains, but whether they are 
 actually there has never been, so far as I am able 
 to discover, satisfactorily established. 
 
 When I was a student and clerk in my father's 
 office, I became acquainted with Honourable Jere- 
 miah S. Black, familiarly known to the public as 
 "Jere Black." He had been conspicuous in public 
 life, was Attorney-General and Secretary of State 
 in President Buchanan's cabinet. Chief Justice of 
 Pennsylvania, recognised as an extremely able law- 
 yer, and was largely employed in the Supreme Court 
 of the United States. As a resident of Pennsyl- 
 vania, he had participated extensively in public 
 affairs which formed an important part of the his- 
 tory of that State during the first half of the last 
 century. He was a very interesting product of 
 those early times. 
 
 When I first met him, his career was nearing its 
 
MEMORIES OP THE COURTS 527 
 
 close. His personal appearance was most striking. 
 He was bulky and ponderous, without much regard 
 for dress or personal appearance, and wore a brown 
 wig which by no means added to his attractiveness. 
 His face was of a sallow hue, his eyes small and 
 bright, his whole countenance very expressive of 
 his feelings, and what impressed me particularly 
 was his marvelous capacity in the use of chewing 
 tobacco and snufP. There was a certain ease and 
 graciousness which characterised him, indicative of 
 thorough acquaintance with the usages of polite so- 
 ciety, but there was mingled with it a rather rough 
 and ready style of intercourse, which was evidently 
 due to early influences and associations. His make- 
 up on the whole was that of a highly interesting 
 personality, possessing a certain magnetism which 
 at once created friendliness and interest. What- 
 ever his outward demeanour and characteristics 
 may have been, his intellect showed itself to be of a 
 superior order and of wide culture. His published 
 arguments in important cases before the Supreme 
 Court, and his public addresses, furnish abundant 
 evidence of this, and his argument before the Su- 
 preme Court on "Trial by Jury" is a forensic mas- 
 ter-piece. 
 
 My opportunity to become acquainted with him 
 was due to the fact that he retained my father to 
 assist him in collecting a fee of fifty thousand dol- 
 lars, which he was to receive for his services before 
 the Supreme Court of the United States in a case in- 
 volving the property of the Quick Silver Mining 
 Company of Pennsylvania. Unfortunately, before 
 
528 LANDMARKS OP A LAWYER'S LIFETIME 
 
 the fee was paid the company became financially em- 
 barrassed; sequestration proceedings ensued, and 
 in the course of time a corporation of the same name 
 was organized under the laws of the State of New 
 York, to which all the assets of the Pennsylvania 
 company were transferred. This left Judge Black's 
 fee uncoUectable in Pennsylvania from the company 
 for which he had performed the service, and its col- 
 lectability from any source was considered doubtful. 
 At this juncture he retained my father, and I there- 
 fore met him frequently in the office. He was not 
 one of those who, having transacted his business, 
 proceeds on his way but rather, being of a sociable 
 nature, he liked to chat a little, and his conversation 
 was decidedly interesting. His mind well stored 
 with literature, his familiarity with Shakespeare, 
 and his apt use of Shakesperian quotations, lent an 
 unusual charm. He seemed to be particularly 
 broad minded and comprehensive in intellectual 
 grasp and displayed knowledge on a wide range of 
 subjects. He could not have failed to be most agree- 
 able and entertaining in higher circles, both social 
 and political. 
 
 By what has always seemed to me to be a very 
 skilful application of legal remedies my father was 
 successful in securing the payment of his fee, but 
 just at this point Judge Black failed in that appre- 
 ciative and generous spirit which ordinarily prompts 
 adequate recognition of most efficient service, and 
 he disputed the amount of my father's compensa- 
 tion. All friendly means of securing payment 
 failed and Judge Black, being a resident of Penn- 
 
MEMORIES OF THE COURTS 529 
 
 sylvania, it would have been folly to attempt to 
 secure its payment through the medium of a Penn- 
 sylvania jury, and unless Judge Black were found 
 in New York, he could not he brought before a New 
 York jury. It was an unpleasant dilemma, and the 
 matter was left in abeyance. Some time afterward, 
 happening to glance at the list of arrivals in the 
 morning paper, whose name should I see as being at 
 the St. Nicholas Hotel but that of Judge Black. I 
 called my father's attention to it and suggested that 
 I proceed at once to the oflSce and make out a sum- 
 mons and serve it upon him at his hotel. He ac- 
 quiesced rather half-heartedly, being reluctant as 
 he always was to engage in a controversy, and think- 
 ing, I suppose, that I would not be able to find him. 
 With the summons in my pocket, I visited the hotel, 
 and as he was not on the office floor, I proceeded to 
 the parlours and there discovered him by a window 
 reading the morning paper. I approached him with 
 deference and respect and bade him a friendly good- 
 morning, and informed him that I had some business 
 with him which consisted in the service of a sum- 
 mons upon him. He was evidently very much dis- 
 gusted, but he accepted it and I went my way. 
 
 Thus was precipitated a very lively litigation in 
 which Judge Black was represented by David Dud- 
 ley Field's office, his son, Dudley Field, conducting 
 the proceedings. The case was eventually sent to a 
 referee, Hon. Eobert B. Roosevelt. The trial was 
 begun and proceeded for a time, and Judge Black 
 was met with an array of eminent lawyers who were 
 more than willing to estimate the value of my 
 
530 LANDMARKS OF A LAWYER'S LIFETIME 
 
 father's services higher than the amount charged 
 and Judge Black was doubtless convinced that his 
 defense was hopeless. He therefore resorted to 
 what we might call "Field" tactics, and actually 
 attempted to remove the ease to the United States 
 Circuit Court under an act of Congress which pro- 
 vided for removals on the ground of "local preju- 
 dice and corruption." This was unpleasant for Mr. 
 Eoosevelt, and was indeed a reflection upon our ad- 
 ministration of justice, but under the provisions of 
 the act of Congress it was necessary that the re- 
 moval proceedings should be taken "before the 
 final trial or hearing" of the case. Mr. Field con- 
 tended that if the proceedings were taken during 
 the trial, but before it was completed, that then it 
 was before the final trial or hearing, but my father 
 successfully contended that a final trial or hearing 
 was an entire thing, and that when the act of Con- 
 gress provided that it should be before the final 
 trial or hearing the meaning plainly was that it 
 must be before it was entered upon, and that there- 
 fore his attempts to remove the case were not in 
 time. The consequence was that Judge Black was 
 remitted to his defence before the referee. Whether 
 it was mortification at his unsuccessful, as well as 
 ungracious, resistance of a just claim that prevented 
 him from appearing again before the referee, I do 
 not know, but I do know that very soon after my 
 father's fee was paid. 
 
 I have never thought that Judge Black would con- 
 sciously do anything that was not consistent with 
 a high sense of honour, and it is quite likely he con- 
 
MEMORIES OF THE COURTS 681 
 
 sidered that according to the scale of fees which pre- 
 vailed in that part of Pennsylvania where he re- 
 sided, the compensation charged was large, but ne- 
 glected to take into account that the scale of fees 
 was very different in the City of New York. 
 
 In the fall of 1884, a sneak thief adroitly entered 
 my house one morning and carried away a consider- 
 able quantity of silver, and about the same time the 
 residence of Mrs. Schuyler Hamilton was also bur- 
 glarized in the day time, resulting in an episode of 
 considerable public interest. She fortunately re- 
 turned to her residence just as the thief was de- 
 scending the steps, and, supposing that he was some 
 messenger or workman, spoke to him, and receiv- 
 ing a satisfactory response he was permitted to de- 
 part. She was able to remember and identify him. 
 She was energetic in following up this theft, and en- 
 listed the co-operation of Inspector Byrnes and his 
 detective force. Spurred on by her activity, ar- 
 rests were made indiscriminately, and with the aid 
 of the rogues ' gallery she finally succeeded in point- 
 ing out the culprit. She consulted me upon the sub- 
 ject as a fellow sufferer, and I gave her what assist- 
 ance I could. She was unable to recover her lost 
 silver, but she was insistent that the thief should 
 be induced to confess where he had disposed of it. 
 I was not at the time acquainted with Inspector 
 Byrnes, but Eecorder Smyth, before whom the thief 
 was to be tried, was an old friend of mine, and to 
 him I applied, believing that he could induce In- 
 spector Byrnes to procure the desired information. 
 He promised to do this and a few days afterward I 
 
532 LANDMARKS OP A LAWYER'S LIFETIME 
 
 was requested by him to meet Inspector Byrnes and 
 lay the matter before him. This I did, stating that 
 I believed he could locate through a confession of 
 the culprit the individual who had received Mrs. 
 Hamilton's silver, and all I desired to ask was 
 whether he was willing to do it. He asked me what 
 reason I had to suppose that he could do this, and I 
 replied that I had no reason except that Recorder 
 Smyth had told me to confer with him and, with 
 the thief in custody, I thought he was skilful enough 
 to accomplish it. He replied: "Well, see Peter 
 Mitchell," a well known member of the criminal 
 bar. I happened to have business in one of the 
 civil courts in the county court house and while 
 there chanced to meet Mr. Mitchell. I was perfectly 
 frank with him, and bluntly stated that Inspector 
 Byrnes had suggested that I should see him, and 
 that through htm I could obtain for Mrs. Hamilton 
 the value of her stolen silver. He replied: "Did 
 Byrnes tell you that?" I said yes, that I had just 
 come from him, and that I believed that he would 
 not have said it unless he meant it. Mr. Mitchell, 
 without further parleying, asked how much Mrs. 
 Hamilton claimed. I replied, that it was $1,200. 
 He responded: "Well, send up a receipt for the 
 amount and it will be paid by Henry W. Jaehne," 
 who at the time was one of our city aldermen, and 
 the leader of the County Democratic Organization 
 in his assembly district. I said: "Mr. Mitchell, 
 are you sure that you want a receipt?" "Yes," he 
 replied, "I must have it." "Very well, I answered, 
 "I was not quite sure whether you would wish to 
 
MEMORIES OP THE COURTS 533 
 
 have it." Accordingly I prepared a receipt, whioh 
 expressed that the money was paid in no other 
 way than as a voluntary restitution, and nowise in 
 forbearance of criminal prosecution, or as com- 
 pounding a felony. The receipt was delivered to 
 Mr. Mitchell, and restitution of the value of the 
 silver was made. I rendered this service as a 
 friendly act to Mrs. Hamilton, without compensa- 
 tion, and my connection with the matter then ter- 
 minated, as I supposed. 
 
 Some months later a legislative iavestigation oc- 
 curred, designed to expose the conduct of certain 
 aldermen in connection with charges of bribery and 
 corruption connected, as I recollect it, with the con- 
 struction of the Broadway surface road. Among 
 the aldermen so iavestigated was Henry W. Jaehne. 
 In the course of the investigation information of 
 the transaction referred to reached, I know not how, 
 the counsel conducting it. The receipt which had 
 been delivered to Mr. Mitchell was, of course, im- 
 portant as evidence. The original could not be pro- 
 cured, and I was applied to by Clarence A Seward, 
 a distinguished member of the bar participating in 
 the investigation, to know whether I had a copy of 
 it. This, fortunately, I was able to furnish, and 
 with this evidence there could be no longer any 
 doubt that Alderman Jaehne was nothing more or 
 less than a "fence" for receiving stolen property. 
 He was therefore indicted: the trial resulted in his 
 conviction, and consequently one of our city fathers 
 was sentenced to a term in the state prison. Why 
 Inspector Byrnes, with the information in his pos- 
 
534 LANDMAEKS OP A LAWYER'S LIFETIME 
 
 session, did not move at once to procure tlie indict- 
 ment without waiting for the investigation, I was 
 never able to explain satisfactorily. . If Mr. Mitch- 
 ell had not taken the receipt, and had simply paid 
 the money over to Mrs. Hamilton, it is evident that 
 Mr. Jaehne's conviction would not, in all probability, 
 have been secured. 
 
 The trial of Al Adams, known as the king of policy 
 gambling, was an event of great significance, not 
 only as reaching one of the men "higher up," but 
 in fact the man "highest up." It was also signifi- 
 cant because it was aimed as a death blow to a form 
 of gambling which for years had been a constant and 
 unceasing drain upon the slender resources of the 
 poor, and enabled a set of gamblers to live in wealth 
 and luxury. Adams was known as the chief of aU. 
 The difficulty of detecting the crime and bringing it 
 home to the principal offender made his conviction 
 well-nigh impossible. But it was accomplished, and 
 its accomplishment was due to the late F. Norton 
 Goddard, one of the most useful citizens which this 
 city has produced in matters of a semi-public char- 
 acter, where the object to be attained was the ame- 
 lioration of social conditions. His life, which ter- 
 minated at an early age, was signalized by intense 
 devotion to the betterment of the conditions of the 
 poor in that portion of the city where he resided. 
 He was a pioneer in settlement work and at one 
 time took up his residence among the poorer class 
 of the community. He was a man of wealth, de- 
 voting it most generously to the welfare of the peo- 
 ple, and his aim was to stimulate and encourage 
 
MEMORIES OF THE COURTS 535 
 
 them to higher ideals and to better lives. He worked 
 among the young men, entering into their political 
 and social undertakings, and became a power 
 among them. The Civic Club on 34th Street was 
 organized by him, and its fine, tasteful and spac- 
 ious building was erected by him at his own cost. 
 I have always considered it a privilege to have been 
 permitted to be associated with him in his endea- 
 vours. My first acquaintance with him grew out of 
 a retainer, which he gave me in connection with 
 charges against Captain Martens before the Police 
 Commissioners for neglect of duty in failing to sup- 
 press the playing of "policy." This form of gam- 
 bling prevailed to an enormous extent among the 
 poorer classes, but little or no effort was made 
 by the police authorities to suppress it, and it was 
 exceedingly difficult to procure any evidence upon 
 which to base an indictment. 
 
 Captain Martens was tried, the charges against 
 him were sustained, and he was disciplined by the 
 police commissioners. During this time, Mr. God- 
 dard was pursuing the "policy" dealers assidu- 
 ously, but he could only reach the subordinates, it 
 being impossible to detect the big culprits. Noth- 
 ing radical and of permanent value could be ac- 
 complished unless, by some means or other, the prin- 
 cipals could be discovered and punished. To ac- 
 complish this, it was essential that there should be 
 an important change in the Penal Code in connec- 
 tion with its provision relating to gambling. 
 
 After the investigation of Captain Martens, it 
 was my privilege to co-operate with Mr. Goddard, 
 
536 LANDMARKS OP A LAWYER'S LIFETIME 
 
 not as a lawyer, but as a friend who gladly placed 
 tis legal services at his disposal. We set to work 
 to procure an act of the legislature which would 
 accomphsh his object, and make the conviction of 
 wrongdoers easier and more certain. 
 
 Of course, all of the baser elements were arrayed 
 in opposition to the proposed act, and at the first 
 session of the legislature at which it was introduced, 
 it slumbered for a long time in committee, and much 
 to our disappointment, failed of passage. But Mr. 
 Goddard was one who seemed never to slumber nor 
 sleep. His energy and resources were inexhaust- 
 ible. The public press took up his cause and a 
 vigorous campaign was prosecuted until the as- 
 sembling of the legislature in the following year. 
 
 We had been carefully considering what form of 
 legislation to propose, not only from a practical 
 stand-point, but also with respect to its constitu- 
 tionality. He was urged on by a tremendous en- 
 thusiasm, and perhaps this led him to desire provis- 
 ions which might not have withstood the scrutiny of 
 the courts. Finally, instead of an independent act 
 of the legislature, we proposed legislation in thp 
 form of amendments to the sections of the Penal 
 Code relating to gambling. Every effort was made 
 to defeat them, but the bombardment by the press, 
 the hearings had before the legislative committees, 
 and the forcing of a vote in the Senate, at last re- 
 sulted in the passage of the amendments, and their 
 approval by the Governor. They are now embodied, 
 as prepared by me, in sections 974, 975 and 976 of 
 the Penal Code. 
 
MEMORIES OF THE COURTS 537 
 
 At last Mr. Goddard was armed and equipped to 
 attack the king of "policy." Of course, it was no 
 easy matter to obtain evidence against him, but Mr. 
 Goddard 's perseverance won the day and he was 
 able to present to the district attorney sufficient evi- 
 dence to justify an indictment by the grand jury, 
 which was duly found. The trial of Adams was an 
 important day for Mr. Goddard. George "W. Schur- 
 mann, then assistant district attorney, conducted the 
 prosecution, and a jury of twelve good and true men 
 pronounced Adams guilty. 
 
 Just here is where the principal legal test began, 
 for the amendements under which Adams was con- 
 victed were of such a character as to afford ground 
 for attacking their constitutionality. The case was 
 carried on appeal to the Appellate Division of the 
 Supreme Court where, in an excellent opinion, that 
 court pronounced in favour of their constitution- 
 ality. The case was then taken to the Court of Ap- 
 peals by which the constitutionality of the amend- 
 ments was again affirmed. 
 
 Still Adams was not contented, and the case went 
 to the Supreme Court of the United States, and that 
 distinguished tribunal concurred in and affirmed the 
 action of the Courts below, and Adams served his 
 term in the state prison and died a broken man. 
 
 Prosecutions imder those amendments drove "pol- 
 icy" players out of business and suppressed the 
 game. No single service of mine has given me 
 greater satisfaction than the preparation of those 
 amendments, in co-operation with Mr. Goddard, in 
 his unselfish efforts on behalf of his fellowmen. 
 
CONCLUSION 
 
 Looking back over more than forty years at the 
 bar it is an unceasing pleasure to recall the uni- 
 formly agreeable intercourse and sometimes inti- 
 mate friendships I have enjoyed with the judges, and 
 it is with the deepest satisfaction that I can remem- 
 ber but few instances in my relations with my pro- 
 fessional brethren which, at the termination of a 
 litigation, did not find us better friends than at the 
 beginning ; and now, having had my "day in court," 
 the time for adjournment having arrived, I submit 
 the best case I have been able to make, on the facts 
 available, hoping for a favourable judgment.. 
 
INDEX 
 
INDEX 
 
 Adams, Al., "king of policy," 
 534; the policy amendments, 
 536; his conviction, 637; con- 
 stitutionality of amendments 
 sustained, 637. 
 
 Allen, Judge Williah F. ; ca- 
 reer, 45; characteristics, 46; 
 opinion in Wiley vs. Slater, 46; 
 decision in People ex rel Tweed 
 vs. Liscomb, 49; incident dur- 
 ing argument, 61; tribute of 
 the Court, 51. 
 
 Andbews, Chief JtrooE Chables, 
 67. 
 
 Anecdotes; Adonijah and the 
 Methodist meeting, 6; court 
 scene in Auburn, 15; court 
 scene in Lyons, 15; Martin 
 Grover's case in Livingston 
 County, 54; holding court in 
 New York, 56; information 
 from young attorney, 57; criti- 
 cism of opinion, 69; Judge 
 Barnard and the court room 
 chair, 69; James Fiske and 
 William A. Beach, 72; a con- 
 test of lungs, 72; decision of 
 motion for injunction, 73; 
 Mr. Hirsch wants to be heard, 
 74; Judge Brady and Mr. 
 McFaxland, 79; Judge Davis 
 and H. H. Anderson, 80; Price 
 vs. Price, 80; trial of Wil- 
 liam M. Tweed, 81; W. H. 
 H. Moore and an accused, 88; 
 the newly elected judge, 114; 
 the Jewish father, 114; Chief 
 Justice Fuller and the title 
 judge, 114; Judge Blank and 
 the Apostles' Creed, 115; Judge 
 Blank's retainer, 115; spoiling 
 a good auctioneer, 180; Judge 
 
 641 
 
 Sutherland's rulinga, 120; Judge 
 Shea's visit to the old country, 
 123; Judge Shea and L. E. 
 Chittenden, 124; Judge Shea's 
 part in the release of Jefferson 
 Davis, 124; talkative judges 
 and Selden's wit, 113; Judge 
 Daly at General Term, 133; 
 Judge Strong and Judge Daly, 
 134; two Dalys and a weakly, 
 136; the court is still with you, 
 137; able to convince the court 
 that you are wrong, 138; 
 Erskine'a reply to Lord Brax- 
 field, 138; there is nothing in 
 it, 138 ; Judge Van Brunt and 
 zealous lawyer, 138; verbosity 
 not a ground of demurrer, 141 ; 
 poverty of the French language, 
 193; criminals object to long 
 sentences, 193; the successive 
 "pops," 194; Rufus Choate's re- 
 ply, 195; Mr. Evarts and the 
 Harvard dinner, 196; Mr. 
 Southmayd and Mr. Rowe, 200; 
 lifting an ass out of a pit, 
 207; transcendentalism, '210; 
 products of my pen, 212; re- 
 ply of Chief Justice Taney's 
 daughters, 214; Mr. Lincoln 
 and the chair, 214; water 
 flowed like champagne, 215; for- 
 eign missions, 215; a dollar 
 went further then, 216; milk 
 and champagne cost the same, 
 216; my servants think I am 
 the devil, 218; the young re- 
 porter, 224; Brother Blank's fu- 
 neral, 226; Daniel Lord, Jr., 
 226; "did you cry by advice of 
 counsel," 226 ; Mr. Bangs' equiv- 
 ocal reply, 268; Mr. Chamber- 
 
542 
 
 INDEX 
 
 Iain's fee to Mr. Bangs, 274; 
 Mr. Beecher, 286; Judge Van 
 Brunt and Mr. Howe, 295; 
 theft from W. F. Howe, 298; 
 Howe's defense of Ella Nelson, 
 303 ; his defense of Considine, 
 304; his defense of linger, 306; 
 surprised with a verdict of not 
 guilty, 307 ; "your jury is not 
 synonymous," 313; Mr. Justice 
 Bradley and the Court of Er- 
 rors, 318; Thaddeus Stevens' 
 reply, 319; "behold the man," 
 324; Count Joannes and the 
 loan, 325; "me neem is Nolan," 
 332; Nolan consulting his 
 friends, 333; Nolan and Sur- 
 rogate Rollins, 335; Nolan and 
 Judge Robertson, 335; Nolan 
 and Recorder Smythe, 336; No- 
 lan and the Catholic priest, 336; 
 Nolan and the conductor, 337; 
 Nolan and the stout woman, 
 337; if you had been young 
 and handsome, 337; Nolan and 
 the widow Moriarity, 338; Ed- 
 win James and the landlord, 
 344; James' reply to Lord 
 Campbell, 344; assuming re- 
 sponsibility, 356; "quench not 
 the spirit," 361; ability to 
 keep still, 363; payment of 
 Irish legacy, 372; an early di- 
 vorce case, 375; "what do you 
 know about a demurrer," 379 ; 
 tools of his trade, 403 ; "you 
 are a woman," 411; the judge 
 and Mr. Morange, 411; Chief 
 Justice Marshall and Mr. Jus- 
 tice Story, 422; a Saturday re- 
 tainer, 445; the plodders, 445; 
 a chance acquaintance, 45 1 ; 
 "almost thou persuadest me to 
 be a Christian," 454; Mr. Ev- 
 arts and a retainer, 457; the 
 impecunious lawyer, 457 ; em- 
 ploying an outsider, 458 ; Mr. 
 Justice Curtis' income, 462; 
 Henry L. Clinton's $400,000, 
 
 462; a lawyer's large income, 
 462; $500,000 for 11 days, 463; 
 a "linen duster" fee, 464; 
 whisper after the event, 475 ; 
 a lawyer's love of New York, 
 499; queer partnership names, 
 500 ; the dissenting juror, 507 ; 
 attempt to get a good jury, 
 508; interrogating the jury, 
 509; classification of witnesses, 
 512; Lord Braxfield'a rudeness, 
 514; "lend me your witnesses," 
 514; purging of contempt, 516. 
 Association of the Bae; ear- 
 lier associations, 156; causes 
 leading to its formation, 159; 
 organisation, 161; objects of 
 the Association, 161; forced to 
 aggressive action, 162; first 
 house, 163; Mr. Evarts, first 
 president, 163; appointment of 
 committees, 164; co-operation 
 with the Committee of Seventy, 
 165; memorial to legislature, 
 166; impeachment of Judges 
 Barnard and Cardozo, 167; in- 
 fluence upon the judiciary, 
 168-169; compensation of 
 Judges, 169 ; influence on the 
 administration of justice, 170; 
 important committees, 172; de- 
 feat of the civil code, 173; the 
 Grievance Committee, 174; sub- 
 sequent associations, 175 ; 
 growth, 176; second house, 176; 
 present location, 176. 
 
 Bangs, Francis N. ; brought up 
 as a Methodist, 268 ; equivocal 
 reply to his mother, 268; his 
 appearance and characteristics, 
 268-269; relations with him, 
 270; afternoon drives, 270; his 
 impatience, 271 ; his kindness 
 and generosity, 271; incident il- 
 lustrating it, 27 1 ; Senator 
 Spooner's estimate of, 272; first 
 acquaintance with, 272; career 
 between 1876 and 1886, 272; 
 
INDEX 
 
 543 
 
 his attractiveness to judges and 
 juries, 273; his ability in the 
 examination of witnesses, 273 ; 
 his methods of work out of 
 court, 273; his rapidity in dis- 
 patching work, 274 ; his charges, 
 274; his fee from Selah Cham- 
 berlain, 274-276. 
 
 Baeboiib, Oltveb L., 32. 
 
 Babi^abo, Judge Geobqe G. ; 
 appearance and characteristics, 
 72; propensity to whittle, 72; 
 a, contest of lungs, 72; decision 
 on motion for injunction, 73 ; 
 "Mr. Hirsch wants to be heard," 
 74; application for allowance, 
 74; impeachment, 74. 
 
 Babnabd, Judge Joseph F. ; ap- 
 pearance and characteristics, 
 75. 
 
 Babnes, Wheeleb, 30; his stu- 
 dents, 31. 
 
 Babbett, Judge Geoege C; ap- 
 pointed to the Appellate Di- 
 vision, 99 ; judicial career, 99 ; 
 application to Judge Barnard, 
 100; election to the Supreme 
 Court, 99, 101; appearance and 
 characteristics, 102; literary 
 culture, 102; demeanor as a 
 judge, 102; conduct of jury 
 trials, 103 ; incident with Mr. 
 Scrihner, 104; mental keenness 
 in decisions, 105; presiding at 
 the trial of Richard Croker, 
 105; presiding at notable crim- 
 inal trials, 106, 107. 
 
 Beach, Whxiam A. ; position at 
 the bar, 285; counsel for Theo- 
 dore Tilton, 285; Gonzales vs. 
 Del Valle, 286; counsel for 
 Commodore Vanderbilt, 287 ; 
 ability and oratory, 287; de- 
 fense of Colonel North, 280; 
 masterly argument, 288. 
 
 Bedle, Goveenob Joseph D. ; 
 his blandness and suavity, 316; 
 his appearance and characteris- 
 tics, 316. 
 
 Black, Jebemiah S.; public po- 
 sitions, 526; personal appear- 
 ance and characteristics, 527; 
 retainer of Theron R. Strong, 
 527; Strong vs. Black, 528; 
 served with summons, 529 ; local 
 prejudice and corruption, 630; 
 termination of the litigation, 
 530. 
 
 Bbadt, Judge John R., 77; ap- 
 pointed to the General Term, 
 77 ; his humor, 77 ; incident of 
 W. W. McFarland, 77. 
 
 Bbadley, Mb. Justice Joseph 
 P.; appointed to Supreme 
 Court by President Grant, 23; 
 legal tender ca«es, 23 ; member 
 of Electoral Commission, 25; 
 subjected to criticism, 25 ; 
 "Aliunde Joe," 25 ; appearance 
 and manner, 317; manner in 
 presiding, 320 ; valuable serv- 
 vice in the U. S. Supreme 
 Court, 318; his wide culture and 
 scientific knowledge, 318; treat- 
 ment of the Court of Errors, 
 318. 
 
 Butleb, William Allen; poetry 
 and law, 282; "Nothing to 
 wear," 282; "Two millions," 
 282 ; literary gift, 282 ; use of it 
 for moral ends, 282; "General 
 Average," 282; "Mrs. Limber's 
 Raffle," 282 ; "Domesticus," 
 282; "Lawyer and client," 282; 
 how his writing was done, 283 ; 
 his characteristics, 283 ; Benja- 
 min F. Butler, Attorney-general 
 in Jackson Cabinet, his father, 
 283; "Retrospect of the mem- 
 ories of 40 years," 284; early 
 surroundings, 284; formation of 
 Barney, Butler &, Parsons, 284; 
 practise, 284; religious principle 
 and gentlemanliness, 285; 
 elected President of the Bar 
 Association, 285. 
 
 Campbell, Judge William W.; 
 
544 
 
 INDEX 
 
 Judge of Superior Court, 12; 
 removal to Cooperstown, 12; 
 Justice of Supreme Court, 12. 
 
 Caeteb, James C. ; as I first 
 saw him, 276; counsel in Jumel 
 case, 276; breakdown from 
 overwork, 276; resumption of 
 practise, 276 ; fondness for duck 
 shoo^ting, 277; his appearance, 
 277; manner before Courts, 
 278; unyielding in convictions, 
 279 ; fearlessness, 279 ; engaged 
 in great cases, 279 ; not a jury 
 lawyer, 280; his influence for 
 good in the profession, 280; 
 President of Bar Association, 
 280; considered for Chief Jus- 
 ticeship of the United States, 
 281; portraits, 281. 
 
 Chubch, CHiEr Judge Sanfobd 
 E. ; characteristics, 43-45 ; part- 
 nership with Judge Davis, 78; 
 elected Chief Judge, 36. 
 
 Civil, Code, attempt to adopt de- 
 feated, 173. 
 
 Codes, Eepobts and Text 
 Books; construing sections of 
 the Code, 417; growth of Code, 
 418; rules of court, 419; David 
 Dudley Field, author of the 
 Code, 419; ridicule of the Code, 
 420; Justice Grier's opinion, 
 420; Chief Justice Marshall's 
 opinions, 422; multiplication of 
 reports, 422; "all-four" cases, 
 423; the difference in binding 
 force, 424; relative value of re- 
 ports, 425 ; publication of re- 
 ports a private enterprise, 428 ; 
 judges as reporters, 428 ; a bur- 
 den of simultaneous reports, 
 428; the "official series," 429; 
 the advance sheets, 429 ; the 
 value of the syllabus, 429 ; 
 method of searching reports, 
 430; conflicting decisions, 432; 
 private libraries, 434; the law 
 institute, 435 ; the Bar Associa- 
 tion, 435; the County Law- 
 
 yers' Association, 435; office 
 building libraries, 435; increase 
 in reports, 436; text books, evo- 
 lution of, 437; since 1870, 437; 
 prominent text books since 
 1869, 438-440. 
 
 CoMSTOCK, Judge Geokoe F.; 
 impressions of, 228; estimate of, 
 229; acquaintance with, 229; 
 early career, 230; his opinion 
 of juries, 231; Hubbard vs. 
 Briggs, 232; his great opinions, 
 233 ; personal characteristics, 
 233-234; in the Court of Ap- 
 peals, 235; formation of present 
 Court of Appeals, 236; tribute 
 of the Court, 236; extensive re- 
 tainers in New York, 237; 
 overturned sentence against 
 William M. Tweed, 238; re- 
 tained by, 239; misfortunes, 
 240. 
 
 Commission op Appeals, its 
 composition, 41. 
 
 CooLEY, Chief Justice Thomas 
 M. ; Chief Justice of Michigan, 
 12; Chief of Interstate Com- 
 merce Commission, 12; concern- 
 ing Theron R. Strong, 12. 
 
 Corporations for Law Prac- 
 tise, 348 ; title companies, 348 ; 
 advertising by, 348 ; practising 
 real estate law, 348; business 
 of organizing corporations, 350; 
 defense of negligence cases, 
 351-353. 
 
 Court of Appeals; plan for per- 
 manent court, 35 ; election of 
 judges, 30; life of the judges 
 in Albany, 37; surroundings 
 and sessions of the court, 38; 
 adoption of gowns, 39; change 
 in the conduct of business, 40; 
 Court of Appeals, Second Di- 
 vision, 42 ; its composition, 42. 
 
 Courts, the three New York 
 courts, 68 ; separate jurisdic- 
 tion and organization, 68; 
 Tweed court house, 69; defects 
 
INDEX 
 
 545 
 
 in their constitution, 70; Gen- 
 eral Term of the Supreme Court, 
 71; consolidation, 96; Appellate 
 Division, 137; Supreme Court 
 of the United States, 137; at- 
 tentive listeners, 137; long 
 terms of service, 189; commis- 
 sion of Appeals, 41 ; its compo- 
 sition, 41; Court of Appeals, 
 see that title. 
 CouBT Officials, keep on good 
 terms with, 495; the court 
 house policeman, 496; Clerk of 
 Chambers, 496 ; James J. Nealis, 
 496. 
 
 Daly, Jtjdoe Charles P. ; his 
 high character, 135; his long 
 judicial service, 135; talkative- 
 ness in hearing appeals, 136; 
 patient and attentive at trials, 
 135; his opinions, 135; his cul- 
 t\ire, 136; president of the Geo- 
 graphical Society, 136. 
 
 Daneexs, Judge Charles, 91; 
 early career, 91; service as 
 judge, 91; tribute of the Bar 
 Association, 92. 
 
 Davis, Jxtoqe Noah, elected Jus- 
 tice in 1872, 78; his previous 
 judicial service, 78 ; his part- 
 nership with Judge Church, 78; 
 removal to New York, 79; nom- 
 ination by Committee of Sev- 
 enty, 79; incident with Henry 
 H. Anderson, 79; his qualities 
 and characteristics, 80, 87 ; the 
 Tweed trial, 81; presentation of 
 protest by counsel, 82; Judge 
 Davis' action, 83; his decision, 
 84-85; the cumulative sentence, 
 86; severe on professional mis- 
 conduct, 87; appointed to Gen- 
 eral Term, 76; appointed pre- 
 siding justice, 90; his useful- 
 ness, 90. 
 
 Denio, Judge Hibam, 32; stu- 
 dent of Wheeler Barnes, 32. 
 
 DoNOHUE, Judge Charles, elec- 
 tion as judge, 120; eminence 
 as an admiralty lawyer, 126; 
 his appearance, 126; his desire 
 to accommodate, 126; his con- 
 duct of trials, 127; his method 
 of dispensing justice, 127; ac- 
 cessibility and friendliness, 128 ; 
 failure of attempt to discipline 
 him, 128. 
 
 DwiGHT, Theodobe W., 252; em- 
 inence as instructor, 252; in- 
 fluence upon students, 252-257; 
 founder of Columbia Law 
 School, 252; retirement, 252; 
 success of law school, 253; sola 
 instructor, 253; his lectures, 
 263 ; bar examination of stu- 
 dents unnecessary to admission, 
 254; litigation over same, 254; 
 matter of Cooper (22 N. Y. 
 67), 254; history of the order 
 of attorneys, 254; his person- 
 ality, 254; his characteristics, 
 255; his personal character, 
 256; character of instruction, 
 257 ; not a case lawyer, 258 ; 
 his method, 259; explanation of 
 equitable conversion and story 
 of Lord Eldon, 256; illustrat- 
 ing statute of limitations by 
 Olcott vs. The Tioga Railroad 
 Company, 261 ; story of Lord 
 St. Leonard's will, 262; story of 
 his own will, 262. 
 
 EvAETS, William M.; president 
 of the Bar Association, 163-191 ; 
 his defense of David Dudley 
 Field, 192; difBculty in trans- 
 lating his sentences, 193; Rufus 
 Choate's reply, 195; his ap- 
 pearance and characteristics, 
 197, 206; his early career and 
 successes, 198; Lemon vs. The 
 People, 198; Tilton vs. Beecher, 
 207; lifting an ass out of a 
 pit, 207; Story vs. The New 
 York Elevated Railroad Com- 
 
546 
 
 INDEX 
 
 pany, 208-211; transcendental- 
 ism, 210; products of my pen, 
 212; the Chief Justiceship, 212; 
 a call from Mr. Evarts, 213; 
 reply of Chief Justice Taney's 
 daughters, 214; Mr. Lincoln 
 and the chair of Texan steer 
 horns, 214; "water flowed like 
 champagne," 215; foreign mis- 
 sions, 215; a dollar went 
 further then, 216; "milk and 
 champagne cost the same," 216; 
 his last days, 216. 
 
 Fees, a sensitive point, 454; reg- 
 ular and contingent, 454; dif- 
 ference in charges, 454; good 
 judgment in fixing a fee, 455; 
 measure of the fee, 455; ele- 
 ments to be considered, 455; 
 differences in the view point of 
 clients, 456 ; uncompensated 
 services, 459 ; the serviceable 
 lavryer, 459; fees based on rea- 
 sonable value, 460; fees of Eng- 
 lish lawyers, 460; the lawyers' 
 incomes, 461 ; a large income, 
 462; a large fee, 462; Mr. 
 Carnegie's sale, 463; "a linen 
 duster fee," 464; estimated in- 
 comes of lawyers, 464; con- 
 tingent fees condemned, 466; 
 action of State Bar Associa- 
 tion concerning, 466; absence 
 of uniform standard, 467 ; the 
 contingent element, 467 ; agree- 
 ments for contingent fees, 467 ; 
 Mr. O'Conor's contingent fee, 
 468 ; three instances of con- 
 tingent fees, 469-475. 
 
 Fiia-D, David Dudley, 81; pro- 
 ceedings of Bar Association, 
 191; Story vs. N. Y. Elevated 
 Railroad Co., 208; Mr. Field 
 and Mr. O'Conor, 221 ; author 
 of the Code, 419; family con- 
 nections, 419; ridicule of the 
 Code, 420; Mr. Justice Grier's 
 opinion, 420. 
 
 Field, Mb. Justice, 180; his ap- 
 pearance, 180; his character- 
 istics, 181 ; his pioneer life, 
 181; his attendance for a duel, 
 181 ; courageous action toward 
 his antagonist, 181; his contro- 
 versy with Judge Turner, 182; 
 his disbarment and restoration, 
 183; his courage toward Moore, 
 184; his life saved by Senator 
 Broderick, 185; election to the 
 Supreme Court of California, 
 185; appointed Justice of the 
 United States Supreme Court, 
 186; his controversy with David 
 S. Terry, 186; assaulted by 
 Terry, 188; Terry shot, 188; 
 his treatment of Mr. Justice 
 Strong, 26; opinions, 143. 
 
 Finch, Judge Fbancis M., judge 
 of the Court of Appeals, 143 ; 
 his literary accomplishments, 
 144. 
 
 FoLGEB, Judge Chaeles J., 61; 
 relations with Theron R. 
 Strong, 61 ; his early career and 
 characteristics, 62 ; opinions, 
 62; his farewell letter, 62; ap- 
 pointed secretary of the treas- 
 ury, 63. 
 
 Fullebton, Judge William, 
 286 ; cross-examination of Mr. 
 Beecher, 286. 
 
 Goddaed, F. Noeton ; a useful 
 citizen, 534; a philanthropist, 
 534; founder of the Civic Club, 
 535 ; the trial of Captain Mar- 
 tens, 535; the policy amend- 
 ments, 536 ; the constitutionality 
 of the amendments upheld, 537 ; 
 the conviction of Al Adams, 
 537. 
 
 Geovee, Judge Mabtin, 52; inci- 
 dent during argument, 52 ; ap- 
 pearance and characteristics, 
 53 ; early life, 53 ; power with 
 juries, 54; trial in Livingston 
 County, 54; election to the 
 
INDEX 
 
 547 
 
 bench, 56 ; holding court in New 
 York, 58; incident with clerk, 
 56; incident with young attor- 
 ney, 57; humour, 58; criticism 
 of an opinion, 59. 
 
 Hill, Nicholas; "King of the 
 Court of Appeals," 244; joint 
 author of Cowen & Hill's notes, 
 245; Hill & Cagger, 245; Mr. 
 Dagger's gift of Judge Cowen's 
 library, 245; Hill, Cagger & 
 Porter, 246. 
 Hilton, Judge Hbnbt, 524; ap- 
 pearance, 524; adviser of A. T. 
 Stewart, 524; Mr. Stewart's 
 constant companion, 524; bene- 
 ficiary under Mr. Stewart's 
 will, 524; litigation with Mr. 
 Stewart's relatives, 525. 
 Howe, Wilham F., 294; his of- 
 fice, 294; its display, 294; a 
 great criminal lawyer, 294; 
 Howe &, Hummel, 295 ; a sen- 
 sational practise, 295; a man 
 of honor, 295; Judge Van Brunt 
 and Mr. Howe, 295; dramatic 
 power, 297; love of Shake- 
 speare, 297; student of the Bi- 
 ble, 297; appearance and char- 
 acteristics, 297; dress, 298; 
 theft from, 298; devotion to 
 clients, 299; his manner in a 
 trial, 300; his influence with 
 juries, 300; "habeas corpus 
 Howe," 301; Judge Davis' esti- 
 mate of, 301 ; Recorder Smythe'a 
 estimate of, 301 ; compiled 
 Penal Code, 302; many retain- 
 ers, 302; defense of Ella Nel- 
 son, 303; defense of Considine, 
 304 ; defense of Unger, 306 ; sur- 
 prised with a verdict of not 
 guilty, 307 ; no counterpart at 
 the bar, 308. 
 
 IWQEAHAM, Judge D. P., 71. 
 
 Jakhjte, Henbt W. ; stolen sil- 
 verware, 631; restitution, 632- 
 
 633; the fatal receipt, 632; 
 Jaehne's conviction, 533. 
 
 James, Q. C, Edwin, 339; first 
 meeting with, 339; his career 
 and practise in England, 339; 
 his departure from England, 
 340, 345; application for ad- 
 mission to our bar, 341 ; ca- 
 reer at our bar precarious, 341; 
 his conduct of a will ease, 342; 
 dilatorinesa in paying debts, 
 343; his reply to Lord Camp- 
 bell, 344. 
 
 Joannes, George the Count; 
 his appearance and dress, 323 ; 
 his "order," 323; his appear- 
 ances in the Jumel will case, 
 324; as an actor, 324; ap- 
 pearance before Judge Brady, 
 324; impecuniousness, 324; liti- 
 gant in his own behalf, 325; 
 complaint in action against 
 Jennings and Jones, 326; 
 "oratorical illustrator," 327 ; 
 career in Massachusetts, 327 ; 
 libel suits, 328 ; indictment as 
 a common barrator, 328; letter 
 to the New York Sun, 329; 
 cross examines James C. Car- 
 ter, 330; Joannes against Jen- 
 nings and Jones, 330; on the 
 platform of Faneuil Hall, 331. 
 
 JUDD, NOBMAN B., 32. 
 
 Judicial Chabacteeistios ; in- 
 tercourse with lawyers, 116; ju- 
 dicial dignity, 116; judicial 
 rudeness, 117-118; indecision, 
 128; instances of, 129; settling 
 judges, 130; incidents of, 131; 
 humorous judges, 132; patient 
 listeners, 130; talkative judges, 
 136; incidents of, 136; judicial 
 delay, 139; incidents of, 140; 
 opinions, 140; humorous opin- 
 ions, 141; lengthy opinions, 
 141. 
 
 Judicial Personages, 113. 
 
 Judioiaby; political influences 
 and upheavals in, 146; offloa a 
 
548 
 
 INDEX 
 
 reward of politics, 145 ; nomi- 
 nation of Judge E. T. Bartlett, 
 146; political assessments, 146; 
 sentiment in favor of retaining 
 efficient judges, 148; "bosses" 
 support, 149; elective and the 
 appointive system, 149; voters 
 failure to discriminate, 150; 
 Maynard's defeat by Judge 
 Bartlett, 150; Camp's defeat by 
 Judge Angle, 152; Judge Wer- 
 ner's defeat by Judge Gray, 
 152; Davies defeat by Judge 
 Rogers, 154; Judge Garretson's 
 triumph, 154. 
 Jdet; its character and compo- 
 sition, 505 ; attempt to get good, 
 508; dissenting juror, 508; ex- 
 amination of, 509. 
 
 Leaders op the Bab; early ed- 
 ucational methods, 264; Lord 
 Mansfield's explanations of 
 principles, 264; value of watch- 
 ing court trials, 265; methods 
 before appellate tribunals, 267. 
 
 LocKWOOD, Belva A.; seeks ad- 
 mission to the bar, 408; her 
 characteristics, 409 ; experience 
 with Columbian Law School, 
 409 ; experience with National 
 University Law School, 410; 
 experience with Georgetown 
 College, 410; letter to General 
 Grant, 411; obtains diploma, 
 411; applies for admission to 
 the Court of Claims, 411; ap- 
 plies to the United States Su- 
 preme Court, 412; procures fa- 
 vorable legislation, 412; admis- 
 sion to the United States Su- 
 preme Court, 413; to the Court 
 of Claims, 413; refused admis- 
 sion to the Supreme Court of 
 Illinois, 413; interview with 
 her, 415. 
 
 McAdam, Judge David; early 
 career, 121 ; personal character- 
 
 istics, 121 ; author of McAdam 
 on Landlord and Tenant, 121; 
 elected Judge of Marine Court, 
 121; elected to the Supreme 
 Court, 122; judicial character- 
 istics, 122; objection to gowns, 
 122. 
 
 McKennajt, Judge William, 
 309 ; his appearance and intel- 
 lectual characteristics, 310; his 
 conduct during a trial, 311; 
 "your jury is not synonymous," 
 313. 
 
 Memories of the Courts; court 
 officers and their influence, 495; 
 friendships between court offi- 
 cers and lawyers, 495; the 
 court house policeman, 496; 
 clerk of chambers, 496; James 
 J. Nealis, 496; disorderly court 
 room scenes, 496-497 ; change to 
 orderliness, 497-498 ; John 
 Percy, 499; a lawyer's love of 
 New York, 499; application for 
 adjournments, 498 ; queer part- 
 nership names, 500; litigation, 
 changes in, 501-503; increase of 
 actions for divorce, 503; a jus- 
 tice's "speed-record" in divorce 
 cases, 504; few prominent trial 
 lawyers, 504; the jury, 505; 
 value of a jury, 506; dissenting 
 juror, 507; tampering with 
 juries, 511; classification, 512; 
 cross examination, 512; cross 
 examination in Laidlaw vs. 
 Sage, 513; the "expert," 514; 
 Lord Braxfleld and the young 
 lady witness, 514; a contempt 
 of court, 516; litigiousness, 517; 
 Jeremiah S. Black, 626; stolen 
 silverware, 631 ; Henry W. 
 Jaehne, 532; restitution, 532- 
 533; the fatal receipt, 532; 
 Jaehne's conviction, 533; the 
 policy amendments, 536; the 
 constitutionality of the amend- 
 ments upheld, 537; the convic- 
 tion of AI Adams, 637. 
 
INDEX 
 
 549 
 
 MoDEKN Law Oftice; location 
 and characteristics, 384; ofGce 
 of DeWitt, Lockman & DeWitt, 
 385; cleanliness, 385; spacious- 
 ness, 385; rental, 386; modern 
 mefthods, 386; copyists, 387; 
 the pen, 388; passing of the 
 quill-pen and sand-box, 388; 
 passing of red tape, 389; ad- 
 vent of rubber bands, 389; 
 manifolding processes, 389-390; 
 introduction of the typewriter, 
 390 ; typewriting machines, 
 390; introduction of the ste- 
 nographers and typewriters, 
 391-393; stenographers and type- 
 writers, 391-393; graduating 
 from stenography to law, 393 ; a 
 stenographer on the bench, 394; 
 earnings of, 394; women ste- 
 nographers, 395; salaries of, 
 395; efficiency of, 395; influence 
 of, 395; introduction of the tel- 
 ephone, 396; influence of, on 
 relations of lawyers, 397 ; de- 
 struction of personal inter- 
 course, 398; electrical appli- 
 ances, 399 ; office furniture, 399 ; 
 the printing press, 399; print- 
 ed records, introduction of, 
 399 ; Digests, Encyclopedias, 
 etc., 402 ; the elevator, 403 ; 
 Surety Companies, 404. 
 
 MoDEEN Lawtebs, 346; earlier 
 lawyers, 346; transition, 346; 
 incursion of money making 
 power, 347-348; absorption of 
 law business by corporations, 
 348-353 ; commercial lawyers, 
 353; salaried lawyers, 353; ra- 
 cial and commercial influences, 
 354; modern lawyers beginning, 
 355 ; recognizing an opportunity, 
 355; assuming responsibility, 
 356; avenues of practise, 358; 
 partnerships, 368; business ne- 
 gotiations, 360; want of ac- 
 complishment in oratory, 361; 
 long-winded utterances, 362 ; 
 
 brief arguments, 363 ; ability to 
 keep still, 363; instances of, 
 364; specializing, 365-368; the 
 criminal lawyer, 369; patron- 
 age lawyers, 370; disbarment, 
 370; the meum et tuum prin- 
 ciple, 371; women clients, 374; 
 incidents of, 375; relations with 
 clients, 377; decline in manners, 
 378 ; lawyers out of court, 379 ; 
 an ungenerous spirit, 380; tran- 
 sit advantages, 381-383. 
 MoEANOE, Henry H. ; his litig- 
 ious propensity, 520; a judge's 
 reply, 521. 
 
 Nolan, "Baebisteb," 332; early 
 life, 332; appearance and dress, 
 332; political aspirations, 333; 
 secures an appointment in the 
 Corporation Counsel's office, 
 333 ; his demeanor in court, 
 334; anecdotes of, 333-338. 
 
 Notes, William Cubtis; part- 
 nership of Barnes & Noyes, 31 ; 
 argument in Beekman vs. Bon- 
 sor, 31. 
 
 O'CoNOR, Charles ; appearance, 
 217; as a pedestrian, 218; "my 
 servants think I am the devil," 
 218; absence of outward per- 
 sonal charm, 219; the Jumel 
 will case, 221; opposed to David 
 Dudley Field, 221 ; his hot tem- 
 per, 221 ; the Forest divorce 
 case, 222; Bar Association in- 
 vestigation, 223; his opinions 
 and briefs, 223; the Parish will 
 case, 223 ; the General Arm- 
 strong, 224; his services against 
 Tweed, 224; the young reporter, 
 224; brother Blank's funeral, 
 225; concerning Daniel Lord, 
 Jr., 225; "did you cry by advice 
 of counsel," 226; Mr. Tilden's 
 estimate, 226; Mr. Carter's esti- 
 mate, 227; Judge Comstock's 
 estimate, 238. 
 
550 
 
 INDEX 
 
 Opinions, 140 ; length of, 141 ; 
 humorous, 47, 142; an eccentric, 
 142; Justice Clifford and the 
 definite articles, 143 ; Judge 
 Folger's quaintness, 143 ; in- 
 stances of elegant styles, 143. 
 
 Paekeb, Cortland, 313; his ap- 
 pearance and characteristics, 
 313; his criticism of testimony, 
 314. 
 
 Patterson, Judge Edward; ac- 
 quaintance, 107 ; breeding and 
 culture, 108; fondness for the 
 city, 109; rival candidates for 
 the Court of Common Pleas, 
 109; defeat, 110; renomination 
 in 1885, 110; again rival candi- 
 dates and defeated, 110; elected 
 in 1886, 110; qualities and 
 characteristics, 110; appoint- 
 ment to the Appellate Division, 
 111; appointed presiding jus- 
 tice, 111; patience under afflic- 
 tion, 111. 
 
 Peckham, Judge Rufus W., Se., 
 60; appearance and character- 
 istics, 60; death at sea, 60; 
 father of Mr. Justice Peckham, 
 60. 
 
 Peckham, Wheeler H., 61 ; his 
 public spirit, 61 ; appointment 
 to United States Supreme 
 Court, 61. 
 
 Peckham, Rufus W., Jr.; Jus- 
 tice of U. S. Supreme Court, 60. 
 
 Porter, Judge John K. ; rela- 
 tions with, 241 ; characteristics, 
 242-243; medical student, 243; 
 change from medicine to law, 
 244; Charles O'Conor's estimate 
 of, 244; relations with Nicholas 
 Hill, 245; forming firm of Hill 
 & Cagger, 245; Judge Cowen's 
 library, 246; influence over ju- 
 ries, 246; counsel in Court of 
 Appeals, 247; Delafleld vs. Par- 
 ish, 247; retained by Charles 
 O'Conor, 247 ; Metropolitan 
 
 Bank against Van Dyke, 248 ; 
 retained by William Curtis 
 Noyes, 248; manner before ap- 
 pellate tribunals, 248 ; appoint- 
 ment and election to Court 
 of Appeals, 249 ; resignation 
 and removal to New York, 249 ; 
 formation of Porter, Lowrey, 
 Soren & Stone, 249 ; prosecu- 
 tion of Guiteau, 249 ; argument 
 before the jury, 250 ; letter, 250. 
 
 Rapallo, Judge Charles A., 
 65; appearance and characteris- 
 tics, 65; opinion in Manice vs. 
 Manice, 66. 
 
 Recreation, Lawyers'; increase 
 of facilities, 477 ; aquatics, 
 478; baseball, 479; tennis, 482; 
 golf, 483 ; equestrianship, 483 ; 
 camping out, 484; the country 
 place, 485; holiday trip to Eu- 
 rope, 486; the bicycle, 487; the 
 automobile, 487 ; billiards at the 
 clubs, 488 ; the Century Asso- 
 ciation, 490 ; the billiard room 
 "set," 490; its composition, 492- 
 494; literature and music, 494. 
 
 Reed, Thomas B.; advent in 
 New York, 491 ; his appearance 
 and characteristics, 491; play- 
 ing billiards, 491. 
 
 Shea, Judge George; Chief 
 Judge of the Marine Court, 122 ; 
 appearance and characteristics, 
 122; visit to the old country, 
 123; author of life of Alexander 
 Hamilton, 123; release of Jef- 
 ferson Davis on bail, 123. 
 
 Sistebs-in-law, Our; Mr. Jus- 
 tice Bradley on "Woman's 
 sphere," 407 ; agitation for ad- 
 mission to the bar, 408; Belva 
 A. Lookwood, 408; personality 
 and characteristics, 409; per- 
 sistence, 409; experience at the 
 Columbian Law School, 409; ex- 
 perience at the National Uni- 
 
INDEX 
 
 551 
 
 yersity Law School, 410; expe- 
 rience with Georgetown College, 
 410; letter to Greneral Grant, 
 411; obtaining her diploma, 
 411; application for admission 
 to the Court of Claims, 411 ; ap- 
 plication to the United States 
 Supreme Court, 412; bombards 
 Congress, 412; obtains legisla- 
 tion and application to the Vir- 
 ginia Bar, 413; courts thrown 
 open, 414; little advantages 
 taken by women, 414; in the 
 United States Supreme Court, 
 415; interview with her, 415. 
 
 SouBCEs OF Business; building 
 up a business, 441 ; business 
 getters, 442; keep your office, 
 444; Saturday business, 445; 
 Samuel L. Barlow, 443; a Sat- 
 urday retainer, 445; the plod- 
 ders, 445; family connections, 
 446; reluctance to employ rela- 
 tives, 447; employing an out- 
 sider, 448; a father-in-law's in- 
 fluence, 448; improper to adver- 
 tise, 449; soliciting business, 
 450; ambulance chasers, 450; 
 how business comes a mystery, 
 450. 
 
 SouTHMATD, Chables F.; prom- 
 inence as an office lawyer, 199; 
 appearance, 200; innocent pro- 
 fanity, 200; affidavit respecting 
 admission to the bar, 201. 
 
 Stewabt, Alexandeb T., 521; 
 appearance and characteristics, 
 522; enterprise, 522; costly 
 mansion, 523; under fire of 
 cross-examination, 523 ; Henry 
 Hilton, his adviser, 524; claim- 
 ants against his estate, 524; 
 death of Mr. Stewart and in- 
 terment, 526-526; his body 
 stolen, 526. 
 
 STOtroHTON, Edwin W., 341 ; 
 appearance, 341; application on 
 behalf of Edwin James, 341. 
 
 Stbono, Adoitijah; course of 
 
 study, 2; characteristics, 3; 
 law books, 4; home and sur- 
 roundings, 6; Judge Warner's 
 reminiscences, 5 ; Methodist 
 meeting, 6; appointed instructor 
 to students, 7. 
 
 Strong, George P., 30. 
 
 Strong, James C, 30. 
 
 Strong, John C, 30. 
 
 Strong, Judge Martin; son of 
 Adonijah, 1 ; notes of Judge 
 Gould's lectures, 4; position in 
 the community, 8; State Sena- 
 tor, 8; Judge of Litchfield 
 County Court, 8 ; characteris- 
 tics, 8 ; immense proportions, 
 8; driving with wife to court, 
 8; presiding in court, 8. 
 
 Strong, Judge Selah B., 30. 
 
 Strong, Judge Thebon R. ; son 
 of Martin, I ; student at Judge 
 Gould's Law School, 4; account 
 of fees and expenditures, 4; 
 Judge Cowles reminiscences, 9 ; 
 early career, 9; elected District 
 Attorney, 10; Member of Con- 
 gress, 10 ; Member of Assem- 
 bly, 10; Justice of the Supreme 
 Court, 10, 13; removal to New 
 York, 10; characteristics, 10; 
 growth and advancement, 10; 
 first earnings, 11; his students, 
 12; Judge Cooley's letter, 12; 
 as a sportsman, 14; his office, 
 14; court scene in Auburn, 15; 
 court scene in Lyons, 15; course 
 as to capital punishment, 17; 
 high moral sense, 18; conver- 
 sion, 18; opinions, 19; Knowl- 
 ton vs. The Congress and Em- 
 pire Spring Company, 20; Can- 
 cemi vs. The People, 10; life 
 in New York, 20; Judge Corn- 
 stock as an adversary, 221-231 ; 
 Hubbard vs. Briggs, 231 ; referee 
 in case of Alexander T. Stew- 
 art, 621 ; retained by J. S. Black, 
 528; Strong vs. Black, 528. 
 
 Stbono, Mb. Justice William; 
 
552 
 
 INDEX 
 
 appearance and characteristics, 
 22; early life, 22; considered 
 for Chief Justiceship, 23; ap- 
 pointment to the Supreme 
 Court, 23; legal tender oases, 
 23; opinion in Knox vs. Lee, 
 23; member of the Electoral 
 Commission, 25; relations with 
 Mr. Justice Field, 26; estimate 
 by Chief Justice Waite, 27; re- 
 tirement from the bench, 28. 
 Strong, Judge William of 
 Obegon, 1; characteristics and 
 estimate of, 29. 
 
 SUPEBME COUBT, GENERAL TeBM, 
 
 71; Judges Ingraham, Barnard 
 and Cardozo, 71; Judges In- 
 graham, Brady and Davis, 76; 
 Judges Davis, Brady and Dan- 
 iels, 76; appointment of Judge 
 Daniels, 90; appointment of 
 Judge Van Brunt, 92. 
 
 Supebme CotTBT, Appellate Di- 
 vision, 137. 
 
 SuTHEELAND, JuDOE JosiAH; ap- 
 pearance and characteristics, 
 118; treachery of William C. 
 Barrett, 119; appearance before 
 him as referee, 120; elected 
 City Judge, 120; tribute of 
 members of the bar, 120. 
 
 SwATNE, Mb. Justice; retire- 
 ment from the bench, 28. 
 
 TowNSHBND, John; his litigious- 
 ness, 518; annotator of the 
 Code, 519; a litigator in real 
 estate, 519. 
 
 Van Bbunt, Judge Chaeles H. ; 
 Judge of the Court of Common 
 Pleas, 92; election to Supreme 
 Court, 93; long service, 93; 
 characteristics, 93; personal ap- 
 pearance, 94; appointed Presid- 
 ing Justice, 92; efficiency as 
 Presiding Justice, 95 ; appointed 
 Presiding Justice, 97; high 
 standing of the court, 97; as- 
 sumption of gowns, 97; im- 
 provements in administration in 
 the Appellate Division, 97; es- 
 timate by Judge Patterson, 98. 
 
 Vaitdeepoel, Aaeon J.; his po- 
 sition at the bar, 289; his ac- 
 tive practise, 289 ; student un- 
 der William Curtis Noyes, 289; 
 Brown, Hall & Vanderpoel, 
 289; partner of Mayor Hall, 
 289; Mr. Vanderpoel's loyalty, 
 289; Mr. Vanderpoel as an op- 
 ponent, 289.