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HISTORY OF THE 
 BENCH AND BAR OF NEW YORK 
 
-'vLX'SAIV-DIE'iH '.££ AMIUj'T Q i x i 
 
HISTORY OF THE 
 BENCH AND BAR OF NEW YORK 
 
 EDITED BY 
 
 HONORABLE DAVID McADAM, HONORABLE HENRY BISCHOFF, Jr. 
 
 RICHARD H. CLARKE, LL.D., HONORABLE JACKSON O. 
 
 DYKMAN, HONORABLE JOSHUA M. VAN GOTT, 
 
 AND HONORABLE GEORGE G. REYNOLDS 
 
 VOLUME I 
 
 NEW YORK HISTORY COMPANY 
 
 132 NASSAU STREET 
 1897 
 
f-ttt 3 (MS 
 
TABLE OF CONTENTS 
 
 VOLUME I 
 
 State of Jurisprudence during the Dutch Period, 1623-1674. 
 
 Honorable Charles P. Daly. 1 
 
 English Colonial Polity and Judicial Administration, 1664-1776. 
 
 Amasa A. Redfield. 35 
 
 Judicial Organization and Legal Administration from 1776 to 
 
 the Constitution of 1846 . . . Honorable Charles H. Truax. 94 
 
 Constitutional and Related Aspects, from 1801 to the Constitu- 
 tion of 1894 Robert Ludlow Fowler. 123 
 
 The Constitution of 1894 John Baker. 169 
 
 Legal Eddcation in New York .... Henry Wynans Jessup. 178 
 
 The Association of the Bar ...... Wheeler H. JPeckham. 191 
 
 The Library of the New Yoke Law Institute. 
 
 William, II. Winters. 210 
 
 Personal Reminiscences of Sixty Years at the New York Bar. 
 
 Benjamin D. Silliman. 226 
 
 Biographical . . > ». .-..=. « ........... , . 244 
 
STATE OF JURISPRUDENCE DURING THE DUTCH 
 PERIOD, 1623-1674. 
 
 ORTY YEARS 
 
 traduction to the first volume of the 
 
 reports of the Court of Common Pleas 
 
 of the City of New York, of which I 
 was then a member, a history of the Court, which was the oldest in 
 the State, having been established by the Dutch in 1653. When this 
 introduction was written little was known respecting our early judicial 
 tribunals. Our first historian, Chief Justice Smith, devoted but a few 
 pages to the Dutch period and had nothing to communicate respecting 
 it but the founding of the colony by the Dutch, the encroachment 
 upon it by the settlers from New England on Long Island, and the 
 particulars of its surrender to the English in 1664. David Graham, in 
 1834 published a work on the jurisdiction of our courts, in which he 
 simply copied what he found in Smith, and went so far as to assume 
 that there was nothing remaining to show what courts existed among 
 the Dutch, or which would shed any light upon the manner in which 
 
2 HISTORY OF THE BENCH ATSTD BAR OF NEW YORK 
 
 justice was administered by them. 1 He appears to have relied upon 
 the absence of any information in Smith's history and to have made 
 no investigation himself, for, on the contrary, the records, in the Dutch 
 language, of the Court that existed from the first establishment of a 
 regular judicial tribunal, in 1653, to the end of the Dutch period, have 
 always remained in the City of New York. In 1848, Dr. O' Callaghan 
 published a ' ' History of New Netherland, ' ' the name by which New York 
 was known under the Dutch, but it contained little respecting the 
 Courts. The first volume of Brodhead's history of the State, which 
 appeared in 1858, contained much more, but it was of a general kind 
 and gave little or no information as to the nature of the Courts, the 
 mode of proceeding, or the way in which justice was administered. 
 
 This information I undertook to supply in the introduction referred 
 to, and to connect with it, a sketch, at least, of the judicial tribunals 
 from the commencement of the English period to the adoption of the 
 State Constitution, in 1846 ; a task then of labor and difficulty, for 
 the colonial documents, copies of which Mr. Brodhead had brought from 
 Holland and from England, had not then been printed. An investi- 
 gator at the present day, with the aid of Dr. O' Callaghan' s admirable 
 index, can turn at once, to any one of these ten bulky volumes, for 
 what he is in pursuit of ; but I had to go over the whole of these 
 documents in manuscript, and as there was no index, to read them from 
 beginning to end, to discover what was contained in them relating to 
 my enquiry, and in re-reading now, for the purpose of revision of what 
 I then wrote respecting the Dutch period, it is gratifying to find how 
 little there is to amend or to be added. 
 
 I was asked by the editors of the present work to write an article 
 for it on the Dutch period. To write an independent article would be 
 to repeat what I have already written, to so great an extent, that I 
 thought the better course, after a lapse of forty yeslfs, would be to revise 
 what I had previously written, as more acceptable and a sufficient 
 compliance with their request ; which I have done in what follows. 
 
 CHARLES P. DALY. 
 
 June 20, 1895. 
 
 The colony of New Netherland was planted by the West India 
 Company, a commercial corporation of Holland. This corporation had 
 obtained from the States General an exclusive charter or patent, 2 to 
 
 1 Graham, on the Jurisdiction of Courts of Law and Block, just returned from Ms voyage to these parts' 
 Equity in the State of New York, Ch. 3. appeared with the shipowners associated with him be- 
 
 2 The charter here referred to was granted by the fore the States-General. A charter was at once drawn 
 States-General of Holland in 1821, to the Dutch West up giving these persons, "all now united into one corn- 
 India Company. That shown in fac-simile is still pany," the right to traffic in the recently discovered 
 earlier. It was granted by the States-General October "new lands situated in America, between New France 
 11, 1G14, and is the first official document in which the and Virginia . . . and now called New Nether- 
 name " New Netherland " appears. In March, 1814, land." A fac-simile of this charter is given on p. 3. It 
 the States-General published a decree to encourage will be found translated in Volume i. of the "Memorial 
 expeditions of discovery under the title of a "General History of New York " and Volume i. of the "Docu- 
 Charter for those who discover New Passages, navens, mente Relating to the Colonial History of New York." 
 Countries or Places." October 11, following, Adriaen Editor. 
 
HISTORY OP THE BENCH AND BAR OE NEW YORK 3 
 
 cZ£ S 1 ?^ an l Car ^ on trade > navigation and commerce npon the 
 coasts of Africa, North America and the West Indies; and, for this 
 
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 ^* Vi * W»j* .MjL/Vii-^iA-v-^ •&-4> 4^^ >y /Irv'wicv it^r^. U^-^y 
 
4 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 SSgr^ 
 
 
 
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 ^-,^4 ^ju 5L* j^f^ ^ a tiA 
 
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 purpose, was invested among other things, with the most comprehensive 
 judicial powers. * It was exclusively entrusted with the administration 
 of justice in the colonies it should establish, having the right to appoint 
 governors, officers of justice, and all other public officers ; to maintain 
 order and police, and generally, in the language of the charter, to do 
 all that the service of those countries might require. 3 
 
 The government of this gigantic corporation was vested in five separate 
 chambers, to one of which, the chamber of Amsterdam, was committed 
 the management of the affairs of New Netherland, the general executive 
 power of the whole body being entrusted to nineteen delegates, repre- 
 senting conjointly the separate chambers and the States General, and 
 which was known by the appellation of the College of Nineteen. The 
 colony of New Netherland was formally organized by May, the first 
 director or governor appointed for it by the Amsterdam chamber, and 
 a settlement was established at Manhattan, the present site of the City 
 of New York, in 1623. May's administration lasted but a year, and 
 whether during this brief period, or in that of his successor, Verhulst, 
 whose rule was equally short, any provision was made for the adminis- 
 tration of justice, there is now no means of determining. The number 
 of the colonists, however, was so small, and they were so fully occupied 
 
 i Brodhead, 134. O'Call. 184. » O'Callaghan, App. 400; Charter, art. 2. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 5 
 
 in providing for their immediate wants, that there could be little, if 
 any, occasion for organizing a judicial tribunal. In "1626, Minuit came 
 out as governor. He had, to assist him, a council of five, who, with 
 himself, were invested with all legislative, executive and judicial powers, 
 subject to the supervision and appellate jurisdiction of the chamber at 
 
 CITY HALL, AMSTERDAM, PRIOR TO 1615. 
 
 Amsterdam. 1 There was also attached to this body an officer, well 
 known in Holland by the title of the Schout Fiscal. He was a kind of 
 attorney general, uniting with the power of a prosecuting officer the 
 
 1 Brodhead, 162. This council had criminal jurisdiction to the extent ol fine, &c, 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 THE"HALF.MOON. M 
 
 executive duties of a sheriff ; a 
 more particular enumeration of 
 whose duties, from the careful 
 compilation of Dr. O'Callaghan, 
 will be found in a note. 1 
 
 To the governor, his coun- 
 cil, and the schout fiscal, the 
 administration of justice was 
 left during the six years that 
 Minuit was governor, and the 
 four years of his successor, Van 
 Twiller, that is, from 1626 to 
 
 1637. In what manner judicial proceedings were conducted is unknown. 
 
 Records were kept under Van Twiller, but they are now irretrievably 
 
 lost. 2 His schout fiscal, 
 
 however, Lubbertus Van 
 
 Dinclage, was a doctor of 
 
 laws, and a man of ability; 
 
 and as long as he con - 
 
 tinued to act, it may fairly 
 
 be presumed that the 
 
 management of judicial 
 
 matters was under his 
 
 charge. In 1630, extensive 
 
 grants of lands in New 
 
 Netherland were made by 
 
 1 lie was charged specially with enforcing and main- 
 taining tiie placards, ordinances, resolutions and military 
 regulations of the[high mightinesses, the States General, 
 and protecting the rights, domains and jurisdiction of 
 the company, and executing the orders as well in as out 
 of court, without favor or respect to individuals; he was 
 hound to superintend ail prosecutions and suits, hut 
 could not undertake any actions on behalf of the com- 
 pany, except by order of the council, nor arraign nor 
 arrest any person upon a criminal charge, unless upon 
 information previously received, or unless he caught him 
 in flagrante delictu. In taking information, he was 
 hound to note as well those points which made for the 
 persons as those which supported the charge against him, 
 and after trial, he was to see to the faithful and proper 
 execution of the sentence, pronounced by the judges, 
 who,»in indictments carrying with them loss of life and 
 property, were not to be less than five in number. He 
 was, moreover, specially obliged to attend to the com- 
 missions arriving from the company's outposts, and to 
 vessels arriving from or leaving for Holland, to inspect 
 their papers, and superintend the loading and discharg- 
 ■ ing of the cargoes, so that smuggling might be prevented ; 
 and all goods introduced, except in accordance to the 
 company's regulations, were at once to be confiscated. 
 He w as to transmit to the directors of Holland, copies of 
 all information taken by him, as well as of all sentences 
 pronounced by the court, and no person was to be kept 
 long in prison, at the expense of the company, without 
 special cause, but all were to be prosecuted as expedi- 
 tiously as possible before the director and council. . 
 
 HOUSE OF WEST INDIA COMPANY. AMSTERDAM. 
 
 He was strictly forbidden to accept presents or gifts from 
 any person whatsoever, and had to content himself with 
 the civil fines and penalties adjudged to him, and such 
 part of the criminal fines and confiscated wages of the 
 company's servants as the director and council, after 
 prosecution, might allow. He was not to have any part, 
 however, of captured prizes or confiscated goods. 
 
 2 Mr. Brodhead informed the writer that when, in 
 pursuance of an act of the Legislature, he was sent to 
 Holland 'in 1841, to collect information respecting our 
 early colonial history, he found that the voluminous 
 archives of the Dutch "West India Company had been 
 sold but a few years before his arrival, as waste paper. 
 Had the legislature acted upon the suggestion of 
 Governor Clinton, in 1810, the records of this company, 
 covering the whole period of the Dutch dynasty, and 
 including all the private correspondence between the 
 directors in Amsterdam and their agents in New Nether- 
 land, would, upon request, have been willingly presented 
 to the State, by the Dutch' government. The sale had 
 been so recent, that Mr. B, was enabled to discover some 
 of the purchasers; but he found in the process of sale 
 and resale, that the papers had passed into the hands of 
 innumerable small dealers in the Dutch metropolis, and 
 had been used as wrappers for merchandise, and that the 
 great bulk of them had been scattered and appropriated 
 to similar uses, along both banks of the Rhine. In the 
 indefatigable search which he instituted, he was enabled 
 to rescue some fragments, but the amount obtained wai 
 very trifling. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 7 
 
 the West India Company, to certain patroons, who were invested with 
 the feudal privileges of manorial lords. They were authorized to 
 erect courts of justice, and courts known as the patroons' courts were 
 accordingly established, exercising unlimited civil and criminal juris- 
 diction within the patroons' territory. In these tribunals the patroon 
 presided in person or by deputy. He was clothed with the power of 
 life and death, and could decide all civil suits arising within his 
 jurisdiction, subject — where he rendered judgment fcr a sum exceed- 
 ing fifty guilders — to an appeal to the director general and council of 
 New Amsterdam. This right of appeal was reserved by the original 
 
 THE "HALF-MOON" LEAVING AMSTERDAM. 
 
 charter, under which the patroons held, but it was practically defeated 
 by exacting from the tenants, before they came upon the* manor, a 
 condition that they would in no case appeal from the judgment of the 
 manorial court. 1 
 
 In 1638, William Kieft was appointed governor. This governor 
 was a grasping, arbitrary, narrow-minded man, full of his own import- 
 ance, with a restless activity that was never turned in any right direction, 
 
 > Brodlieaa, 304. 
 
8 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 or applied to the accomplishment of any wise purpose. During the 
 nine years that he misgoverned the colony, he retained in his hands the 
 sole administration of justice. In obedience to his instructions, it was 
 necessary that he should keep up the form of a council, but that he 
 might enjoy exclusive control, he reduced it to one member, reserving 
 two votes to himself. 1 In 1640, a charter of exemptions and privileges, 
 designed to encourage emigration, was adopted by the College of 
 Nineteen, in which it was declared that the governor and council should 
 decide all questions respecting the rights of the company, and all 
 complaints, whether by foreigners or inhabitants of the province ; that 
 they should act as an orphan' s and surrogate' s court, judge in criminal 
 and religious affairs, and administer law generally. In conformity with 
 the charter, Kieft directed that the council should sit every Thursday, 
 as a court of justice, for "the hearing and adjudication of all civil and 
 criminal processes, and for the redress of all grievances of which anyone 
 
 might have to complain ;' ' and he established certain rules for securing 
 the attendance of parties, and for the general conduct of business. 2 In 
 a court thus constituted, guided and controlled by a man vain, rapacious 
 and vindictive, it may readily be imagined in what way justice was 
 administered. He enacted laws, levied fines, or inflicted penalties 
 according to his will. The schout fiscals, of whom there were two dur- 
 ing his governorship, Ulrich Lupoid and Cornelius Vander Huygens, 
 were occasionally invited to be present at the sittings of the council, 
 but neither they nor his counsellor, Doctor Johannes La Montague, a 
 learned Huguenot physician, appeared to have had much weight with 
 him. Ever involved in trouble, either with the natives or with the 
 colonists, he was constantly inflicting fines, confiscations and banish- 
 ments; and though an appeal lay from his judicial decisions to the 
 
 > Brodhead, 327. 
 
 s 1 O'Call. 184. Brodhead, 877. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 chamber of Amsterdam, he effectually cut it off by subjecting to fine 
 or imprisonment anyone who attempted to resort to it. 1 Such an 
 administration was fruitful at least of one result. It stirred up the 
 colonists to demand the establishment of judicial and municipal tribunals, 
 similar to those which they had enjoyed in Holland. There had existed 
 in every town and village in Holland, for more than a century, a local 
 tribunal of a highly popular character. It united the twofold functions 
 of a court of justice and of a municipal government, and consisted of a 
 bench of magistrates, denominated burgomaster and schepens, with 
 whom were associated a schout, whose especial duty it was to prosecute 
 all offenders before the court, 
 and to carry into execution 
 its resolves or decrees. The 
 burgomaster, was a kind of 
 mayor. The schepen re- 
 sembled an alderman, and 
 the schout performed the 
 duties which, under our 
 system, are respectively as- 
 signed to sheriffs and district 
 attorneys. The principle of 
 popular representation was 
 recognized in the composi- 
 tion of this body. The 
 mode of appointment was 
 not uniform throughout 
 Holland; but generally the 
 inhabitants of the town who 
 were possessed of a certain 
 property qualification, as- 
 sembled annually in a town 
 council or "Vroedschap,'''' 
 and elected eight or nine 
 "good men," and this repre- 
 sentative body chose the 
 burgomaster and schepens. The schout, under the feudal law, was 
 appointed by the count or manorial lord, though in certain places, as in 
 the city of Amsterdam, he was chosen by the burgomaster and schepens. 2 
 
 KIEFT'S MODE OF PUNISHMENT. 
 
 > Hiker's Annals at Newtown, 23. 
 
 Breeden Eacdt (Broad Advice), printed at Antwerp, 
 1650, and attributed to Cornelius Melyn, president of the 
 " board of eight men." This rare tract has been trans- 
 lated by Henry C. Murphy, Esq., and a few copies have 
 been printed for private circulation, by James Lennox, 
 Esq. 
 
 Yertoogh, Van N. N., printed at the Hague, 1649, and 
 attributed to Adrian Van der Donck. This has also been 
 translated by Mr. Murphy, and printed, together with 
 the Breeden Kaedt, by Mr. Lennox, and by the N. T. 
 
 Hist. Soc. 2 Coll. 2d series, 251. Brodhead, 277. A 
 translation will also be found in the Holland documents, 
 iv. 74. 
 
 2 Esprit Origine et Progress des Institutions Judiciaries 
 des principaux pays de l'Europe, par J. D. Myer, Paris, 
 1823; tome iii., livre 5, coup d'oiel, sur l'etat, politique 
 des Pays Bas. chap. 11, 253, chap. 14, 387. Placards of 
 Hollande, vol. ii. 695. Van Leuwen's Roman Dutch 
 Law, book 1, chap. ii. §§ 19, 20, 21. Vander Linden's 
 Institutes of Holland, part 1, book 3, chap. 1. O'Call. i. 
 391; ii. 310. Brodhead, 453. 
 
10 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 Kieft wished to go to war with the Indians, but unwilling to take 
 the entire responsibility of snch a step, he deemed it prudent to call 
 the community together and submit the question to them. The heads 
 of families met, aud according to the custom of Holland, selected twelve 
 men to represent them. This representative body assented to the war; 
 but, at the same time, presented a memorial to the governor, demanding 
 among other reforms, the establishment of courts of justice similar to 
 those which existed in the towns and villages of Holland. 1 This privi- 
 lege Kieft felt no disposition to grant, and after evading the request for 
 some time, he finally got rid of it by dissolving the popular body. Two 
 
 years later, however, having by 
 his rashness and folly brought 
 the colony to the brink of ruin, 
 he found it necessary again to 
 convoke the community. They 
 met as before, and selected 
 "eight men" to advise upon 
 the state of affairs. This 
 second representative council 
 did not trouble Kieft with any 
 further requests, but they ad- 
 dressed an earnest memorial to 
 the College of Nineteen, and to 
 the States General, describing 
 the condition of the colony, 
 and demanding a new govern- 
 or, and the establishment in 
 New Amsterdam of a burgher 
 government, according to the 
 custom and usage of Holland; 
 a request that produced no 
 other effect but the recall of 
 Kieft and the appointment of 
 Stuy vesant. 2 
 Peter Stuyvesant came out as governor in 1647. Yan Dinclage, 
 who had acted as schout fiscal under Van Twiller, came with him in the 
 capacity of vice director, and Hendrick Yan Dyck as schout fiscal. 
 Immediately after his arrival, Stuyvesant established a court of justice, 
 of which Yan Dinclage was made the presiding judge, having associated 
 with him occasionally, others of the company's officers. The new 
 tribunal was empowered to decide " all cases whatsoever," subject only 
 to the restriction of asking the opinion of the governor upon all moment- 
 ous questions, who reserved to himself the privilege which he frequently 
 
 i Brodhead, 326. 
 a Brodhead, 364. 
 
 3 The ship, "New Nethe'rland," a vessel of two hundred and sixty tons, three times the size of Hudson's 
 " Half -Moon," brought the tat colonists to New Amsterdam— the Wallonns, 
 
 SHIP "NEW NETHERLANDS 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 11 
 
 exercised, of presiding in the court, whenever lie thought proper 
 to do so. 1 
 
 The desire for a popular form of government became so strong after 
 Stuyvesant' s arrival that he found it necessary to make some concession. 
 He allowed the commonalty to elect eighteen persons, from whom he 
 selected nine, as a per- 
 manent body to advise 
 and assist in public 
 affairs. This body, who 
 were known as the board 
 of the nine men, had 
 certain judicial powers 
 conferred upon them. 
 Three of their number 
 attended in rotation 
 upon every court day, 
 to whom civil cases were 
 referred as arbitrators, 
 and their decision was 
 binding upon the parties, 
 
 HOUSE OF WESTINDIA COMPANY ON THE EAPENEURG, AMSTERDAM. 
 
 though an appeal lay to 
 
 the governor and council, upon the payment of one pound Flemish. 
 These tribunals, with the manorial courts before referred to, constituted 
 the judicial organization of the colony for seven years afterwards. 
 
 The government of Stuyvesant but increased the popular discontent. 
 Though a man of capacity and integrity, he was unfitted for the place 
 assigned him, or his duty as the careful guardian of the pecuniary 
 interests of a commercial corporation was inconsistent with the just and 
 politic rule of a people like the colonists, who had their own views as 
 to the manner in which a community should be governed. It was 
 natural that they should desire to live under institutions to which they 
 had been accustomed in Holland, and which, whatever might be their 
 advantages or defects, had to them the merit of nationality, and were 
 associated with their earliest recollections. This Stuyvesant did not, or 
 would not, see. Strongly conservative himself by nature, and long 
 used to military rule, he saw in a demand s^just and reasonable, 
 nothing but a desire to break loose from the restraints of lawful author- 
 ity. Though not an unjust man, he felt himself warranted in resorting 
 to any means to crush everything in the shape of popular encroachment, 
 and as he was both prompt and energetic, his government became 
 insufferably oppressive. Before the end of two years he was in open 
 collision, not only with the board of nine men, but with the schout 
 fiscal, Van Dyck, and the vice-director, Van Dinclage, an enlightened 
 and learned man, and the most influential member of his council. The 
 
 i Breeden Raedt, extracts in 4 Doc. Hist, of N. T. 69. Albany Kec. 20, 88, 29, 38, 56 to 61. 2 O'Call. 24 to 31. 
 Brodhead, 467, 523, 532. 
 
12 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 council he was enabled to control, but not so with, the popular body. 
 In one of its members, Adrian Van der Donck, he had to cope with a 
 
 
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 Jli^-J^ .v.^Cffn 
 
 
 
 loo id] 9 at wy <^°»'^ft"« ^0+ «w«*^ InCy'u 
 
 OO: 
 
 ' " *Jir£ #m>. Woo: j-«.^»^piw4N ,m>' &i ^ ' ' 
 
 
 
 
 
 u^T 
 
 
 
 
 ^ 
 
 iETTER OF "BOARD OF NINE MEN" ACCREDITING DELEGATES TO HOLLAND. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 13 
 
 man whose ability and energy were equal to his own. Instigated by 
 Van der Donck, the board of nine men resolved to send a delegation to 
 Holland, but they had no sooner decided upon this step than Stuyvesant 
 arrested its projector, seized his papers, and procured a decree of the 
 council removing him from his position as one of the popular represent- 
 atives. But this violent and arbitrary measure did not produce the 
 effect expected. The nine men met together, a spirited remonstrance 
 was prepared to the States General, and three of the number, of whom 
 Van der Donck was one, went with it as a deputation to Holland. 
 
 This mission was so far successful, that in 1650 a provisional order 
 was made by the States General, which among other things decreed 
 that a court of justice should be erected in New Netherland, and 
 that a burgher government should be established in New Amsterdam, 
 to consist of two burgomasters, five schepens and a schout, and that in 
 the mean time, or for three years, the nine men should continue to 
 exercise judicial powers in the trial of civil causes. 1 This order was 
 resisted by the Amsterdam chamber as a violation of the privileges 
 granted by their charter, and Stuyvesant, no doubt under instructions 
 from them, refused to obey it. 2 When it was known at New Amsterdam 
 that Stuyvesant would not comply with the order, the nine men again 
 appealed to the home government, and Van der Donck, who had 
 remained in Holland, appeared as their advocate before the States 
 General. A long struggle ensued, during which Stuyvesant grew more 
 violent and unreasonable. He imprisoned Van Dinclage for uniting 
 with Van der Donck in a protest to the States General, dismissed the 
 schout fiscal, Van Dyck, from office, for co-operating with the nine men, 
 and followed up these arbitrary and illegal acts by equally violent 
 measures against other leaders of the popular movement. 3 The Amster- 
 dam chamber, who regarded the establishment of a burgher court as 
 likely to prove detrimental to the interests of their commercial 
 monopoly, employed every means to counteract the efforts of Van der 
 Donck; but after maintaining the contest for two years, they at last 
 thought it prudent to yield, and signified to Stuyvesant their assent to 
 the wishes of the colonists. The inhabitants of New Amsterdam were 
 to be allowed to elect a schout, two burgomasters and five schepens, ' ' as 
 much as possible according to the custom of old Amsterdam," and the 
 magistrates thus elected, were to compose a municipal court of justice, 
 subject to the right of appeal to the supreme court of the province. 
 "We have resolved," they wrote to Stuyvesant, "to permit you hereby 
 to erect a court of justice (een bandc Van Justitie), formed as much as 
 possible after the custom of this city; to which end, printed copies 
 relative to all the law courts here, and their whole government, are 
 transmitted. And we presume that it will be sufficient at first to choose 
 
 1 Brodhead, 514. 
 
 » O'Call. 210. Brodhead, 640. 2 Doc. History of N. Y. 
 
 3 Brodhead, 525, 582. 
 
14 
 
 HISTORY" OF THE BENCH AND BAR OF NEW YORK 
 
 one schout, two burgomasters and five schepens, from all of whose 
 judgment an appeal shall lie to the supreme council, where definite 
 judgment shall be pronounced." 1 It Was evident from the order of the 
 States General, that these officers were to be elected by the commonalty, 
 as was customary in the cities, towns and villages of Holland; and such 
 would seem to be the direction in the dispatch of the Amsterdam 
 chamber. The language of the dispatch was, perhaps, a little ambigu- 
 ous, and Stuyvesant, putting the construction upon it that conformed 
 most with his own views, and which, if erroneous, he perhaps felt would 
 not be unpalatable to his employers, resolved to appoint the new 
 magistrates himself. He not only determined thus to keep the power 
 
 i' Tart nieutv *s4mtlerdam' ojT<kM/'j;ha£ins. 
 
 4XZS<e*t*i*'&3i24&93?± j^O^ 
 
 EARLIEST VIEW OF NEW AMSTERDAM. 
 
 in his own hands, but he practically defeated the provision that had 
 been made for a city schout, by appointing to that office Cornelius Van 
 Tienhoven, a man of depraved and dissolute life, exceedingly obnoxious 
 to the colonists, whose only recommendation was the ability he had 
 shown in carrying out the measures of his headstrong and arbitrary 
 superior. By this means, the two offices of city schout and schout fiscal 
 were united in the same person. Stuyvesant even went so far as to 
 refuse to allow the new magistrates to appoint their own clerk, though 
 it had been the usage in Amsterdam from the time that that city had 
 had a burgomaster ; and as a crowning act, he informed the new tri- 
 bunal, that its establishment or ^he scope of its authority did not in the 
 slightest degree diminish the power of himself and his council, to pass 
 whatever laws or ordinances they pleased, for the municipal government 
 of the city. " 
 
 ' 1 N. T. Doc. History, 387. 
 
 s N. T. Rec. of Burgomasters and Schepens, vol. i. Brodhead, 548. 
 
HISTORY OP THE BENCH AND BAR OF NEW YORK 
 
 15 
 
 On the second of February, 1653, he issued a proclamation, appoint- 
 ing as burgomasters, Arent Van Hattan and Martin Krieger, and as 
 schepens, Paulus L. Van der Grist, Maximillian Van Gheel, Allard 
 Anthony, Peter W. Cowenhoven and William Beekman. Five days 
 afterwards, the newly appointed magistrates assembled; Van Tienhoven, 
 the schout fiscal, attending in his additional capacity of city schout, 
 with Jacob Kip, who had been appointed secretary or town clerk, a 
 station he continued to fill for many years afterwards. No business 
 was transacted other than to give notice that the court would meet for 
 "the hearing and determining of all disputes between parties, as far as 
 practicable, in the building heretofore called the City Tavern, now the 
 
 Stadt House (City Hall), on every Monday morning, at nine o'clock." 
 The Stadt House not being ready on the day appointed, the next meet, 
 ing took place four days afterwards at the Fort, where the court was 
 duly organized for the dispatch of business, and the proceedings opened 
 with prayer ; the following eloquent extract from which will show the 
 sense entertained by these new magistrates of the duties and obligations 
 of the judicial office : 
 
 We beseech thee, Oh! Fountain of all good gifts, qualify us by thy 
 grace, that we may, with fidelity and righteousness, serve in our 
 respective offices. To this end enlighten our darkened understandings, 
 that we may be able to distinguish the right from the wrong, the truth 
 from falsehood, and that we may give pure and uncorrupted decisions, 
 having an eye upon thy Word, a sure guide, giving to the simple, wis- 
 dom and knowledge. Let thy law be a lamp unto our feet and a light 
 unto our paths, that we may never turn away from righteousness. 
 Deeply impress on all our minds that we are accountable not to man 
 
i6 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 but to God, who seeth and heareth all things. Let all respect of persons 
 be far removed from us, that we may award justice unto the rich and 
 unto the poor, unto friends and enemies ; to residents and to strangers, 
 according to the law of truth, and grant that not one of us, in any 
 instance, may swerve therefrom ; and as gifts do blind the eyes of the 
 wise and destroy the heart, keep, therefore, our hearts in judgment. 
 Grant unto us, also, that we may not rashly prejudge any one, but that 
 we patiently hear all parties, and give them time and opportunity for 
 defending themselves ; in all things looking up to Thee and to Thy 
 Word for counsel and direction.' 
 
 It was the intention that the municipal government conceded to 
 New Amsterdam should conform, as far as practicable, to that of the 
 parent city. How essentially Stuyvesant departed from this in the out- 
 set has been already shown, and his resolving that the burgher govern- 
 ment did not diminish the right of himself and his council to regulate 
 municipal affairs, left the precise powers of the new tribunal very 
 indefinite and uncertain. It led at the commencement, to an organiza- 
 tion of the municipal government, in many respects different from that 
 of Amsterdam, and to great unwillingness at first, on the part of the 
 burgomasters and schepens, to interfere at all in municipal matters. In 
 Amsterdam there were four burgomasters, each of whom attended three 
 months of the year, in rotation, at the city hall, for the dispatch of 
 public business, and the schepens, who were nine in number, held the 
 
 regular court of justice, 
 having civil and criminal 
 jurisdiction, which was 
 almost unlimited. The 
 duties of the schepens 
 were especially judicial, 
 while those of the schout 
 and the burgomasters 
 were chiefly executive, 
 and the three bodies 
 when assembled to- 
 gether, constituted a 
 "college," for the en- 
 actment of municipal 
 ordinances and laws, 
 under the title of "the 
 lords of the court of the 
 city of Amsterdam." 
 There was also a permanent council composed of thirty-six members, 
 the nature of which need not be explained. ' 
 
 Though this division of duties and labors was highly essential in a 
 city of the magnitude of the Dutch commercial metropolis, it was not 
 
 Van- 
 
 BOWERY HOUSE OF GOVERNOR STUYVESANT. 
 
 1 N. T. Eec. of Burg, and Schep. i. 3. 
 
 2 J. Wagenaar, Amsterdamsche Geschiedenissen, 1740. 
 Meyer's Institutions Judiciaries, tome iii. livre 6, chap. 
 
 11, 253. Ordinances of Amsterdam, vol. ii. p. 695. 
 der Linden, 379. 8 O'Call. 210. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 17 
 
 so necessary in a small community like that of New Amsterdam, which 
 at the period in question, could not have embraced much over seven 
 hundred inhabitants. 1 From this cause, perhaps, as well as from the 
 uncertainty respecting the precise distribution or extent of their duties, 
 occasioned by the notice they had received from Stuyvesant, the newly 
 appointed officers assembled together as one body, and in that united 
 capacity continued thereafter to discharge legislative, judicial and 
 executive functions. In the towns and villages of Holland, the schout 
 was the chief officer of the board. He convoked the court, and presided 
 at the head of it, but without taking any part in its proceedings other 
 than in collecting the votes. His position was somewhat analogous to 
 that of the speaker or the president of a legislative assembly, except 
 that he had no vote, though he might express his opinion, and he was 
 obliged to quit the bench when he acted as prosecuting officer, the oldest 
 
 burgomaster then presiding in his stead. 2 In New Amsterdam, however, 
 Arent Van Hatten, being the first named as burgomaster, assumed the 
 presidency of the court, 3 and after he retired from office, the eldest 
 burgomaster continued to act in that cajmcity until 1656, 4 when 
 Stuyvesant ordered that the presidency should be changed every three 
 months, which continued until 1660, in which year the colonists obtained 
 what they had long petitioned for, a separation of the office of city 
 schout from that of the schout fiscal. This separation had in fact been 
 made six years before, and a city schout appointed by the Amsterdam 
 chamber, but "this officer, Jochem T. Kuyter, having been killed in a 
 collision with the Indians, before he could enter upon the duties of his 
 office, Stuyvesant retained the schout fiscal, Van Tienhoven, in the dis- 
 charge of the duties of city schout, and persisted against the urgent 
 
 1 Valentine's History of the City of New York, p. 53. Brodhead, 548. 
 
 8 Van Leuwen, book 1, chap. 1, sec. 21. Meyer's Institutions Judiciaries, tome iii. livre 5, chap. 11, 
 ' Linden, 377. Brodhead, 674. 
 
 3 N. Y. Eec. of Burg, and Schep. i. 4. 
 
 4 N. Y. Bee, of Burg, and Schep. ii. 488. 
 
 3. Vander 
 
18 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
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HISTORY OP THE BENCH AND BAR OP NEW YORK 19 
 
 remonstrance of the inhabitants in continuing him and the succeeding 
 schout fiscal, Nicasius de Sille, as city schout, until the Amsterdam 
 chamber finally appointed to the post Peter Tonneman, who had formerly 
 been schout of a district of Dutch towns on Long Island. Tonneman 
 received his appointment in Holland, and when he came out he insisted 
 upon his right to the presidency of the court. In this he was supported 
 by Stuyvesant, who went personally before the burgomasters and 
 schepens, and insisted not only that Tonneman should sit at the head of 
 the court, but that he should have a vote in all matters in which he was 
 not a party, a privilege never granted to the schouts in Holland. The 
 burgomasters and schepens resisted, but after a long and angry dis- 
 cussion, it was finally agreed that Tonneman should have what he 
 claimed, until the question should be determined by the "Lords 
 Majores," in Holland. It does not appear whether any further action 
 was had in the matter, but the name of Tonneman was continued there- 
 after upon the records as the chief or presiding officer. ' In 1657, that 
 branch of municipal affairs which especially required the discharge of 
 executive duties, had increased so largely, that the burgomasters 
 organized a separate court, which met every Thursday to dispose of it. 2 
 In view of the serious encroachment made upon their time by the 
 accumulation of duties, or as they expressed it, the impossibility of 
 attending to their private affairs, the burgomasters petitioned Stuyvesant 
 to be released thereafter from attending the burgher court, but he 
 refused to grant it, and the court continued in the discharge of mixed 
 legislative and judicial functions as long as the Dutch held possession 
 of the province. 
 
 The proceedings of this tribunal, or as it was denominated, "the 
 worshipful court of the schout, burgomaster and schepens," were all 
 recorded by their clerk or secretary; and as everything that took place 
 before it, the nature of the claim, or of the offence, the statements of 
 the parties, the proof and the decision of the court, with the reasons 
 assigned for it, were carefully noted and written down, these records 
 supply a full account of the whole course of its proceedings, and furnish 
 an interesting exposition of the habits and manners of the people. 
 Upon perusing them it is impossible not to be struck with the compre- 
 hensive knowledge they display of the principles of jurisprudence, and 
 with the directness and simplicity with which legal investigations were 
 conducted. In fact, as a means of ascertaining truth, and of doing 
 substantial justice, their mode of proceeding was infinitely superior to 
 the more technical and artificial system introduced by their English 
 successors. None of these magistrates were of the legal profession. 
 They were all engaged in agricultural, trading or other pursuits, and 
 yet they appear to have been well versed in the Dutch law, and to have 
 been thoroughly acquainted with the commercial usages, customs and 
 
 1 N. Y. Eec. of Burg, and Schep. v. 414, 484. 
 
 ' N. Y. Kec. of Burg, and Schep, Ordinances of Burgomasters. 
 
20 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 municipal regulations of the city of Amsterdam. This is the more 
 remarkable, as a knowledge of the Dutch law at that period was by no 
 means of easy acquisition. Though the principles and practice of the 
 civil law prevailed in Holland, it was greatly modified by ancient usages; 
 some of them of feudal origin, others the result of free institutions, 
 
 which had existed from the earliest 
 period; and it had engrafted upon 
 it a number of public regulations 
 or ordinances, emanating from the 
 different provinces, as distinct and 
 partly independent sovereignties, 
 which had originated either as 
 feudal privileges or sprung up dur- 
 ing Spanish domination, or were 
 the result of the long struggle and 
 many political changes which the 
 low countries had passed through 
 before the general establishment of 
 free institutions. In every town 
 arid village in Holland, moreover, 
 there existed usages and customs 
 peculiar to the place, which had 
 the force of law, and were not only 
 different in different towns, but 
 frequently directly opposite. The 
 Dutch law, in fact, was then a kind of irregular mosaic, in which might 
 be found all the principles as well as the details of a most enlightened sys- 
 tem of jurisprudence ; but in a form so confused as to make it exceed- 
 ingly difficult to master it. ' That these magistrates should have had any 
 general or practical acquaintance with such a system at all, was scarcely 
 to have been expected; but that they had is apparent, not only from the 
 manner in which they disposed of the ordinary controversies that came 
 before them, but in their treatment of difficult questions as to the rights 
 of strangers, their familiarity with the complicated laws of inheritance, 
 and the knowledge they displayed of the maritime law while sitting as 
 a court of admiralty. The Amsterdam chamber sent out to them the 
 necessary books to guide them as to the practices of the courts of 
 Amsterdam, and when the province passed into the hands of the English 
 there was attached to the court a small but very select library of legal 
 works, mainly in the Dutch language. The authoritative work used in 
 the administration of the criminal law was Damhouder's Practyke in 
 Criminele Saecken (Practice in Criminal Cases). I have in my possession 
 
 DUTCH WINDMILL. 
 
 1 H. Fagcl and J. C. Van tier Hoop, Dissert, de nau 
 Juris Romani in Hollandia Hag, 1779. F. Van Mieris 
 Groot Charterbock der Graavun Van nolland, Leid, 
 1753-4. Deelen C'au en Scheltus, Placaat Bock Van de 
 Staaten Generaal Van Holland, en Van Zeelend, 9 
 
 Deelen, edition of 1658. Actes des Etats Generaux de 
 1600. Recuielles et mis en ordre, par M. Gachard 
 Bruxelles, 1849. Oeuvres do Raepsait, tome iii. Des 
 Droit des Belgis et Gaulois. Meyer*s Institutions Judi- 
 ciaries, tome iii, livre 5, chap. 11. 
 
HISTORY OF THE BENCH AND BAB OP NEW YORK 
 
 21 
 
 a copy of this work printed in Rotterdam, in 1628, an edition now rare 
 in Holland. I bought it at a book auction in New York some years ago, 
 and being found here may, from its date, have been one of the books of 
 this library. There were, moreover, men educated to the legal pro- 
 fession in the colony. Van Dinclage, the vice director, who had acted 
 as schout fiscal for Van Twiller, and chief judge of the court established 
 by Stuyvesant, was a doctor of laws, 
 and there is sufficient known respecting 
 him to warrant the opinion that he was 
 an able and accomplished jurist. Van 
 der Donck was admitted to the same 
 honorable degree in the University of 
 Leyden, and was afterwards an advo- 
 cate of the supreme court of Holland/ 
 The schout fiscal, Mcasius de Sille, who 
 acted as city schout for four years, is 
 stated in his commission from the Am- 
 sterdam chamber to be "a man well 
 versed in the law." 3 In addition to 
 these, there were several notaries. Dirk 
 Van Schellyne, who came out in 1641, 
 had previously practiced at the Hague ; 
 David Provorst discharged the duties 
 of notary for some years before Schel- 
 lyne' s arrival, 4 and there was another 
 notary named Matthias de Vos. 5 Under 
 
 the civil law as it prevailed in Holland, a considerable part of the pro- 
 ceedings in a cause, if it was seriously contested, was conducted by the 
 notary, who was required, at least, to be well versed in the manner of 
 carrying on legal controversies ; and as he was frequently consulted by 
 suitors for advice as to their rights and liabilities, he was generally well 
 informed and capable of giving it. Such was the case with Van 
 Schellyne, who, from the records he has left, was evidently an experi- 
 enced and skillful practitioner. He was not only connected with the 
 court in the discharge of his duties as notary, but he was appointed by 
 it, in 1665, high constable (conchergio). ' All of these men must have 
 had more or less to do with establishing the mode of legal proceeding, 
 and of advising and' guiding the magistrates. Van Schellyne and 
 De Sille were in constant official communication with them. Van 
 
 STUYVESANT'S PEAR TREE. 
 
 1 Practyke in Criminele Saecken ghemaeckt door dorst 
 De Damhouder van Brugge. Nutom Profieytelyek, 
 vooral le Souvereins, naillins, Borgem ro, cnde Sche- 
 penen, etc. Tat Kotterdam By Jan Van Waesberghe de 
 
 2 2 O'Call. 550. 
 
 » Brodhead, 561. 5 N. Y. Eec. of Burg, and Schep. 5. 
 
 * 3 N. T. Eec. of Burg, and Schep. 101. 
 
 6 5 N. Y. Eec. of Burg, and Schep. C42. 
 
 6 S. Van Leuwen Practyk der Notarissen, Eott. 1742. 
 
 ' N. Y. Eec. of Burg, and Schep. ii. 042. 
 
 Vonge Armo 1G28, (Practice in Criminal Cases, "by Joost 
 de Damhouder, of Bruges. For the use of Sovereigns, 
 Magistrates, Burgomasters and Sheriffs, etc., etc., 
 Eotterdam, 1628). • 
 
22 
 
 HISTORY OF THE BENCH AHB BAR OP NEW YORK 
 
 Dinclage must have brought into use the forms of legal procedure in 
 the court over which he had presided, and Van der Donck was one of 
 the chief getters up of the new tribunal ; and though he survived its 
 creation but two years, he was no doubt advised with and consulted in 
 respect to its organization, and as to the mode in which it was conducted. 
 We find him in fact, the very year that it was established, claiming its 
 protection as a " citizen and burgher, ' ' against the menaces of Stuy vesant. ' 
 The court was required in all its determinations, to regard as paramount 
 law, all regulations established by or instructions received from the 
 chamber of Amsterdam or the College of Nineteen, for the government 
 of the colony. Next, all edicts or ordinances duly established by the 
 governor and council ; then the usages, customs or laws prevailing in the 
 
 city of Amsterdam, and 
 where they furnished no 
 guide, the law of the 
 fatherland, by which was 
 more particularly under- 
 stood the ordinances of 
 the province of Holland 
 and of the states general, 
 and the civil law as it 
 prevailed in the Nether- 
 lands, or, as it is de- 
 nominated by jurists, 
 the Roman Dutch Law. 
 
 CORNER OF BROAD STREET AND EXCHANGE PLACE. 
 
 The burgomaster 
 and schepens had con- 
 stantly demanded from Stuyvesant that they should be allowed to 
 nominate a double number of persons, from whom their successors should 
 be chosen, as a partial approximation to the privileges enjoyed in the 
 Netherlands, or as they expressed it, "in the beloved city of Amster- 
 dam ;" 2 but he continued the old magistrates, merely supplying vacan- 
 cies, until 1656, when he consented, with the proviso that the old 
 magistrates should always be considered as re-nominated — which left it 
 in his power to continue them precisely as he had done before. The con- 
 dition was accepted, and the nominations made ; but Stuyvesant, being 
 displeased with some of the new names, continued the old magistrates, 
 merely supplying vacancies, until the time for reappointment came 
 around, in 1658, when he at last gave way, and selected, from a double 
 list of names presented to him, the magistrates who were to serve. 
 The burgomaster and schepens then selected, continued in office until 
 1660, when a new nomination and appointment was made every year, 
 in the month of February, 3 which was continued thereafter, until the 
 
 1 N. T. Eec. of Burg, and Schcp. i. 321. 
 
 a New AmBterdam Rec. 859, 373, 375. 
 
 3 Kec. of N. Y. Burgomasters and Schepens, iv. 299. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 23 
 
 English, changed the organization of the court. All these magistrates, 
 as far as can be gathered, were men of intelligence, of independence, 
 and with one or two exceptions, of high moral character, evincing in 
 the discharge of their duties, and especially in those of a judicial nature, 
 that unswerving adhesion to established rules and customs, that sterling 
 good sense and strong love of justice, which constitutes so marked a 
 feature in the Dutch national character. 
 
 The right which Stuyvesant claimed, of interfering in the adminis- 
 tration of city matters, appears to have been confined to what related to 
 the general regulation of the city's affairs, and not to the administration 
 of justice between particular individuals, or as against public offenders. 
 Upon the former matter, he and 
 the burgomaster and schepens 
 came frequently in collision; 
 and he sometimes gave vent to 
 his anger at their insolence and 
 presumption, by a public pro- 
 clamation, in which they were 
 contemptuously referred to as 
 "the little bench of justice;" 1 
 but he seems to have abstained 
 from any interference with 
 their judicial powers. At first 
 he was disposed to limit their 
 action in criminal cases ; but 
 finally he suffered them to exercise unlimited criminal and civil 
 jurisdiction, except the infliction of punishment in capital cases. The 
 mode of proceeding in civil cases was simple and summary. The court 
 was held once every fortnight, though frequently once every week, upon 
 a stated day. Attached to the court was an officer known as the court 
 messenger, who, at the verbal request of the party aggrieved, summoned 
 the adverse party to appear at the next court day. If the defendant 
 failed to appear, he incurred the cost of the summons, lost the right to 
 make any objection to the jurisdiction of the court, and a new citation 
 was issued. If he failed again, he incurred additional costs, lost the 
 right to make all "dilatory exceptions," or to adjourn, or delay the 
 proceeding. He was then cited for the third time, and if he did not 
 then appear, the court proceeded to hear the case and give judgment, 
 and he was cut off from all right of appeal or review. But if, upon 
 hearing the plaintiff's case, the court deemed the presence of the 
 defendant essential, they might issue a fourth citation, in the nature of 
 an arrest, and compel his appearance. Parties, however, usually 
 attended upon the first citation. The plaintiff stated his case, and the 
 defendant made his answer. If they differed in a fact which the court 
 thought material, either party might be put to an oath ; and, if they 
 
 1 Documents of Stuyvesant's Council in N. T. Record of Burgomasters and SchepenB, 26th of February, 1654. 
 
 GOVERNOR'S HOUSE AND THE CHURCH, 1645. 
 
24 
 
 HISTORY OF THE BENCH AND BAR OF NEW 'YORK 
 
 were still in conflict, the court might require the examination of wit- 
 nesses, and the matter was adjourned until the next court day, during 
 which time either party might take the depositions of his witnesses, 
 before a notary, or the court might require that the witnesses should be 
 produced, to be examined orally before it, at the adjourned day, under 
 oath. But most generally, the matter was disposed of upon the first 
 hearing of the parties, without resorting to the oath, or the examination 
 of witnesses. If it was intricate, or it was difficult to get at the truth, 
 it was the constant practice to refer the cause to arbitrators, who were 
 always instructed to bring about a reconciliation between the parties, 
 if they could ; and this was not confined merely to cases of disputes 
 about accounts, or to differences growing out of contracts, but it 
 extended to nearly every kind of case that came before the court. The 
 arbitrators were left to the choice of the litigants, or appointed by the 
 court, or one of the 
 to take the matter in 
 concile the contes- 
 ciliation could be ef- 
 would not submit to 
 or conclusion of the 
 satisfied party might 
 before the court, where 
 of. These references 
 every court day. In 
 ness of this tribunal 
 court of conciliation ; 
 
 SEAL OF NEW NETHERLAND. 
 
 schepens was directed 
 hand, and try and re- 
 tants. If no rein- 
 fected, or the parties 
 the final determination 
 arbitrators, the dis- 
 again bring the matter 
 it was finally disposed 
 were frequent upon 
 fact, the chief busi- 
 was, in acting as a 
 and it is worthy of 
 remark, that though the amount involved was frequently considerable, 
 or the matter in dispute highly important, that appeals to the court 
 from the decision of the arbitrators were exceedingly rare. Indeed, the 
 first appeal to be found upon the records was brought by a stranger. ' 
 
 ■ There was a more formal mode of proceeding, if parties preferred it. 
 After the plaintiff had stated his case, the defendant might require him 
 to put it in writing, and a day was given to that purpose. The defend- 
 ant was then obliged to answer in writing, to which the plaintiff could 
 reply, and the defendant rejoin, and there ended the pleadings. Each 
 party then went before the notary of his choice, and had the depositions 
 of his witnesses reduced to writing, a draft or copy of which was 
 retained by the notary, in a book kept by him for the purpose ; and 
 where it was necessary, a commission, or, as it was called, a requisitory 
 letter, might be obtained for the examination upon interrogation of 
 witnesses residing beyond the court' s jurisdiction, who were examined 
 before the judges of the local court where the witness resided, who 
 sealed up the examination, and transmitted it to the court having juris- 
 diction of the cause. When the proofs were complete, they were added 
 to the pleadings, the whole constituting what was called the memorial, 
 
 1 N. Y. Kec. of Burgomasters and Schepens, i. 188,231; ii. 104, 176; iii. 188; v. 190; vi. 474; vii. 180. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 25 
 
 which was submitted to the court, either party being at liberty to inspect 
 it, and having the right, within a certain time, to have any of the wit- 
 nesses of his adversary examined upon cross interrogatories, in respect 
 to anything contained in their deposition, which was deemed material, 
 or to have additional witnesses examined on his own behalf in reply ; 
 the manner of conducting which subsequent examination was arranged 
 by the j udge. But this mode of proceeding being dilatory and expensive, 
 was rarely resorted to. The great majority of cases were referred to 
 arbitration, or disposed of upon a summary hearing of the parties before 
 the magistrates ; and it may be important to note, in respect to the 
 rules of evidence, that whenever a paper or document was produced, 
 purporting or avowed to be in the handwriting of a party, it was assumed 
 to be his handwriting, unless he denied the fact under oath ; and that 
 merchants or traders might always exhibit their books in evidence, 
 where it was acknowledged or proved that there had been a dealing be- 
 
 tween the parties, or 
 been delivered, pro- 
 larly kept with the 
 persons, things, year, 
 practice which, in the 
 and JSTew York, sur- 
 bunals, and has, at the 
 tain qualifications or 
 to nearly every state 
 credit was given to all 
 where they were 
 or confirmed by the 
 
 SEAL OF NEW AMSTERDAM, 1654. 
 
 that the article had 
 vided they were regu- 
 proper distinction of 
 month and day — a 
 states of New Jersey 
 vived these Dutch tri- 
 present .day, with cer- 
 restrictions, extended 
 in the Union. Full 
 such books, especially 
 strengthened by oath, 
 death of the parties, 
 
 and also to memorandums made between parties by sworn brokers. A 
 leading distinction in evidence was also made between what was termed 
 full proof, as where a fact was declared by two credible witnesses, as of 
 their own knowledge, or it was proved by a document or written paper, 
 and half proof as where it rested upon the positive declaration of knowl- 
 edge by one witness only, under which latter head, as weak but assist- 
 ing evidence, hearsay was allowed, which, in some instances, as in the 
 case of certain dying declarations, was admitted to the force of full 
 proof ; and as the determining of a case upon the evidence of witnesses 
 was left to the judges, very discriminating and nice distinctions were 
 made in adjusting or weighing its relative force or value. 1 
 
 When judgment was rendered against a defendant for a sum of 
 money, time was given for payment, usually fourteen days, for the dis- 
 charge of one half, and the remainder in a month. If, at the expiration 
 of that time, he did not comply, application was made to the court, and 
 the schout, or usually the court messenger, went to the delinquent, and 
 exhibiting a copy of the sentence and his wand of office, which was a 
 
 1 Eec. of N. Y. Burg, and Schep. vii, viii. 
 v. chap. xiii. to xx. and xxiii. 
 
 Meyers' Institutions Judiciaries, chap. 14, 387. Van Leuwen, book 
 
26 
 
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 HISTORY OP THE BENCH AND BAR OF NEW YORK 
 
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 ^Naraticons ^ 8 f V V 
 
 \\V 
 
 
 
 VAN DER DONOH'S MAP, 1668. 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 27 
 
 bunch of thorns, summoned him to make satisfaction in twenty-four 
 hours. If, at the expiration of that time, the amount was not paid, the 
 delinquent was again summoned to pay within twenty-four hours, which 
 involved additional expense ; and if, when that time expired, he was 
 still in default, the messenger, in the presence of a schepen, took into 
 custody the debtor's movable goods, which he detained for six days, 
 within which time they might be redeemed on payment of the expenses. 
 If they were not redeemed, notice was then given by publicly announc- 
 ing upon a Sunday, and upon a law day, that they would be sold, and 
 at the next law or market day they were disposed of by auction. If it 
 was necessary to levy upon or sell real estate, or what in the civil law is 
 termed immovable property, a longer term was allowed, and greater 
 formalities were required. The manner of selling it was peculiar. The 
 officer lighted a candle, and the bidding went on while it was burning, 
 and he who had offered the most at the extinction of the candle, was 
 declared the purchaser, which differed from the ordinary mode in a 
 Dutch auction, where a public offer of the property is made at a price 
 beyond its real value, which is gradually lowered or diminished until 
 one of the company agrees to take it. ' 
 
 The civil business of the court was large and varied ; such as actions 
 for the recovery of debts, which were generally cases of disputed accounts, 
 or of misunderstanding between the parties, for in proof the probity 
 and punctuality of the Dutch suits by creditors to enforce payments 
 from delinquent debtors, formed but a small proj)ortion in the general 
 mass of this business. There were proceedings by attachments against 
 the property of absconding debtors, or of non residents or foreigners, on 
 which security was required of the debtor intending to depart, to release 
 the property from the attachment ; actions to recover the possession of 
 land, or to settle boundaries, a proceeding somewhat similar to the 
 relief afforded by our courts of equity upon a confusion of boundaries ; 
 actions to recover damages for injuries to land or to personal property, 
 or to recover specific personal property as in replevin, or its value as in 
 trover. 
 
 Actions for freight, for seamen' s wages, for rent, for breach of promise 
 of marriage, where the performance of the contract was enforced by 
 imprisonment ; for separation between man and wife, in which case the 
 children were equally allotted to the parties, and the property divided, " 
 after the payment of debts ; proceedings in bastardy cases, in which the 
 male was required to give security for the support of the child, and in 
 which both delinquents might be punished by fine or imprisonment. 
 Actions for assault and battery, and for defamation, which were quasi 
 criminal proceedings, punishable by fine, imprisonment or both, though 
 the defamer was generally discharged upon making a solemn public 
 recantation before the court, sometimes upon his knees, asking pardon 
 
 » Hec. of N. T. Burg, and Schep. i 204, 250 ; v. 207, 576. Van Leuwen, book 5, chap. 25. 
 8 Eec. of N. Y. Burg, and Schep. iv. 1659. Eec. of Mayor's Court, i. 533. 
 
28 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 of God and of the injured party. Pecuniary compensation, for injuries 
 to person or character, could not be enforced ; though cases occurred 
 in which the defendant was discharged, it appearing that he had made 
 compensation to the other party in money or goods. And, from the 
 frequent application made to the court for redress in cases of defama- 
 tion, detraction would seem to have been a vice to which the inhabitants 
 were particularly prone. 
 
 The court, also, acted as a court of admiralty, and as a court of pro- 
 bate, in taking proofs of last 
 wills and testaments, and in 
 appointing curators to take 
 charge of the estates of widows 
 and orphans. Application was 
 made to Stuyvesant for liberty 
 to establish an orphan house, 
 similar to the celebrated institu- 
 tions which exist throughout 
 Holland. He did not think that 
 such an establishment was neces- 
 sary, but he afterwards assented 
 to the appointment of orphan 
 masters, and those officers acted 
 in aid of the court. Some of its 
 proceedings in the exercise of 
 this branch of its jurisdiction, will serve to illustrate how tenaciously 
 the Dutch clung to old forms or legal ceremonies, as, where a widow, 
 to relieve herself from certain obligations, desired to renounce her 
 husband' s estate ; it is, in all such cases, recorded, that the intestate' s 
 estate "has been kicked away by his wife with the foot," and that 
 she has duly "laid the key on the coffin." 1 The court also exer- 
 cised a peculiar jurisdiction, that of summoning parents or guardians 
 before them, who, without sufficient cause, withheld their assent to the 
 marriage of their children or wards, and of compelling them to give it. 2 
 It also granted passports to strangers, or conferred on them the burgher 
 right, a distinction, which now, that it has ceased to be attended with 
 any practical advantage, is still kept up in the custom of tendering or 
 presenting the freedom of the city to strangers as a mark of respect. 
 It may not be uninteresting, moreover, to state, that the origin of a fee 
 bill, for regulating by a fixed and positive provision of law, the costs of 
 attorneys and other public officers, is to be traced to Stuyvesant. On 
 the 25th of January, 1658, he put forth what is known in Holland as a 
 placard, that is, a proclamation, or ordinance, emanating from some 
 legislative or executive authority, having the force of law, by which he 
 established a regular tariff of fees. In England, the fees of attorneys 
 and other officers of the court has generally been regulated by the court, 
 
 WATER GATE, FOOT OF WALL STREET. 
 
 1 Eec. of N. Y. Burg, and Schen. ii., 32. 
 
 2 Eec. of N. Y. Burg, aud Schep. vols. 1, 2, 3, 4, 5, 6. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 29 
 
 and not by any public act. In New York, however, the fees of public 
 officers has been a matter of public regulation from a very early period. 
 Ten or twelve years after the restoration of the province to the Eng- 
 lish, they were regulated by an ordinance of the governor, and after- 
 wards by acts of the general assembly ; and there is every reason to 
 believe that the practice, especially as respects the fees of attorneys 
 and officers of the court, was derived from the Dutch. ' A copy of Stuy- 
 vesant's ordinance remains in the records of the burgomaster and 
 schepens, and as the preamble to the document is of interest as a legal 
 curiosity, we shall take the liberty to insert it. ' ' Whereas, the director 
 general and council of New Netherland, have sufficient evidence from 
 their own experience, in certain bills of costs which have been exhibited 
 to them, as well as by the remonstrances and complaints which have 
 been presented to them by others, of the exactions of scriveners, notar- 
 ies, clerks, and other licensed persons, in demanding and collecting 
 
 THE CANAL IN BROAD STREET. 
 
 from contending persons, excessively large fees, and money, for writing 
 for almost all sorts of instruments, to the manifest, yea, insufferable 
 expense of judgments and judicial costs ; some of whom are led by their 
 covetousness and avarice so far, as to be ashamed to make a bill or 
 specify the fees they demand, but ask or extort a sum in gross. There- 
 fore, to provide for the better and more easy administration of justice, 
 the director general and council do enact," &c. ; after which follows 
 provisions requiring the licensing of the officer entitled to take the fees, 
 the keeping of a record of all fees charged by them, and prohibiting 
 champetry and other abuses. It is then provided, that the officers 
 enumerated shall serve the poor gratis, for God's sake, but may take 
 from the wealthy the fees specified. Each particular service is then 
 
 » Ordinance and Table of Fees in first edition of the Colonial Laws, by Bradford, 1694; Charter Book and Acts 
 si Assembly of 168S, in office of Secretary of State; Laws of 1709, ordinance regulating fees. 
 
30 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 enumerated in the manner of our former fee bills, with the number of 
 stivers allowed for each. Among the provisions is the following entry : 
 " No drinking, treats, presents, gifts or doucers shall be inserted in any 
 bill, or demanded;" and the ordinance concludes by directing, that it 
 shall be read once every year in the court, upon a day specified, to the 
 officers enumerated, who were thereupon to be sworn faithfully to ob- 
 serve it ; any officer being subject, for a violation of its provisions, to a 
 fine of fifty guilders, or the loss of his office. ' 
 
 In criminal cases, the schout prosecuted as plaintiff on behalf of the 
 community. At his requisition, and upon the inspection by a magis- 
 trate of evidence sufficient to 
 warrant a belief that an offence 
 had been committed, the offender 
 might be arrested or summoned 
 according to the discretion of 
 the magistrate ; though where 
 the culprit was detected in the 
 actual perpetration of the deed, 
 the new yobk slave maeket. or where, in the judgment of 
 
 the schout, there was strong 
 ground of suspicion against him, and, in his opinion the public inter- 
 est demanded it, he might direct his immediate arrest ; but in all 
 such cases the schout was obliged to give notice of the arrest to the 
 magistrate within twenty-four hours, who was thereupon bound to 
 investigate the matter — a provision that practically dispensed with 
 the necessity of the writ of habeas corpus, so familiar in the history 
 of the. English law. 3 Bail was allowed, except in cases of murder, 
 rape, arson or treason. There were two modes of trying the pris- 
 oner ; either publicly upon general evidence, which was the ordinary 
 mode, or by examining him secretly in the presence of two schepens, 
 in which written interrogatories were propounded to the prisoner, to 
 which he was obliged to return categorical answers. The Dutch law 
 then adhering to the general policy of the civil law in respect to extort- 
 ing confessions from offenders, and making use of the torture and of 
 all those inquisitorial aids and appliances which have cast such a blemish 
 upon the criminal jurisprudence of Europe. 3 The torture, however, was 
 not used, except where the presumptive proof amounted almost to a 
 certainty ; and I have found but one case upon the records in which 
 this cruel and unnecessary test was resorted to. Criminal prosecutions 
 were not frequent, nor were the offenses generally of a grave character. 
 The punishments were by fines, which were distributed in three equal 
 parts, to the schout, to the court, and to the poor ; by imprisonment, 
 whipping, the pillory, banishment from the city or province, or death, 
 
 1 Placards of Stuyvesant, iii Eec. of N. Y. Burg, and Schep. 
 
 * Ordinances of Amsterdam, p. 46, and seq. Ed. of 1644. 
 
 " La Practique et encheridon des causes Criminills, Louvain, 1555. Van Leuwen, book 5, chap». 37, 2S, 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 31 
 
 which, however, could not be inflicted without the concurrence of the 
 governor and his council. * 
 
 Courts of the same popular character were established upon Long 
 Island, s shortly after the erection of the one at New Amsterdam. A 
 court with two schepens existed at Breuklin {Brooklyn) before 1654, 
 which in that year was increased to four schepens. There was one at 
 Midwout (Flatbush) with three schepens, and another at Amersfoort 
 (Flatlands). David Provoost, who had been a notary at New Amster- 
 dam, was made schout of Breuklin, and a district court was established, 
 composed of the schout of Breuklin, and of delegates from these three 
 tribunals, which was continued until 1661. In that year, similar courts 
 were established at Boswyck (Bushwick) and at New Utrecht, and the 
 
 STUYVESANT'S HOME, "THE WHITEHALL," 1658. 
 
 whole were formed into a district known as "the five Dutch towns," 
 to which there was attached one schout, residing at Breuklin, each town 
 having its separate courts. 3 Courts were also established by virtue of 
 a grant from Stuyvesant, among the English settlers at Canorasset 
 (Jamaica) in 1656/ and at Middleburgh (Newtown) in 1659. * In 1652 
 Stuyvesant, by the simple exercise of his prerogative, established a 
 court at Beverwyck (Albany) independent of the patroon's court of 
 Raensellervyck. 6 It was held at the house of the vice director, upon 
 the second floor, in a room directly under the roof, without a chimney, 
 and to which access was had by a straight ladder, through a trap door. ' 
 The courts thus enumerated, including the patroon courts, already re- 
 
 1 Kec. of N. T. Burg, and Schep. iv. 141. 
 
 2 2 Thompson's History of Long Island, 96. 
 313, 323. 
 
 3 Brodhead, 580. 
 
 4 Thompson's History of Long Island, 96. 
 
 3 Riker's AnnalB of Newtown. 
 2 O'Call. » Albany Eec. 183. Records of Mortgages, Albany, 
 
 book A. 2 O'Call. 183. 
 ' 2 O'Call. 311. 
 
32 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 f erred to, and the supreme or appellate court at New Amsterdam, com- 
 posed of the governor and council, constituted the judicial tribunals of 
 New Netherland, until the colony passed into the hands of the English. 
 That event took place on the 6th of September, 1664.' By the terms 
 of capitulation entered into between Col. Richard Nicolls and Stuy- 
 vesant, it was agreed that such of the inhabitants as desired might re- 
 turn to Holland, and that those who remained should continue to enjoy 
 their own customs concerning their inheritances ; that public records, 
 except such as concerned the States General, should be carefully kept ; 
 that all contracts made before the signing of the articles should be de- 
 termined according to the manner of the Dutch ; that no judgment that 
 had passed any judicature in the colony should thereafter be called in 
 question, and that all inferior civil officers and magistrates should con- 
 tinue as they were until the customary time of new elections, when they 
 
 PALISADES ALONG WALL STREET. 
 
 should then have the choice of their successors, the new magistrates so 
 chosen taking the oath of allegiance to the king of Great Britain. 2 Im- 
 mediately upon assuming the government, as the representative of 
 James, Duke of York, to whom the territory had been ceded by virtue 
 of a grant or patent from Charles II. , Nicolls changed its name, as well 
 as that of the city, to New York, but abstained from any interference 
 with the municipal government of the city, or with the administration 
 of justice, until a later period. 
 
 He carried out the terms of capitulation that had been agreed upon, 
 and adapted his measures so judiciously, that the municipal govern- 
 ment of the burgomasters and schepens was resumed within a week, 
 
 i Brodhead, 762. 
 
 » 2 Eev. Laws, Appendix, No. 1. 
 
HISTORY OF THE BUNCH AND BAR OF NEW YORK 
 
 33 
 
 and the administration of justice was proceeded with as before. Upon 
 resuming their duties, the burgomasters and schepens addressed a long 
 letter to the directors of the West India Company, announcing the 
 capitulation, and setting forth the reasons why they had deemed it best 
 to continue under the rule of their conquerors. It was an affectionate 
 and earnest epistle, addressed to the directors by ''their honors' loyal, 
 sorrowful and desolate subjects," concluding in these words : "Mean- 
 while, since we have no longer to 
 depend upon your honors' power 
 and protection, we, with all the 
 poor sorrowing and abandoned 
 commonalty here, must fly for 
 refuge to the Almighty God, not 
 doubting but that He will stand by 
 us in this sorely afflicting con- 
 junction. We remain your sor- 
 rowful and abandoned subjects. 
 Done at Jorck, (York) heretofore 
 
 named Amsterdam, in New Netherland, 16th of Sept., 1664.'" 
 When the time arrived, in the February following, for choosing new 
 magistrates', great reluctance was shown to take the oath of allegiance. 
 Peter Tonneman, the schout, positively refused, and departed for Hol- 
 land. Allard Anthony was chosen in his place, and he, with the other 
 new magistrates, took the oath, though but one hundred and fifty of 
 the inhabitants could be prevailed upon to do so. 
 
 New York remained in the possession of the English for nine years, 
 or until the 9th of August, 1673, when it was retaken by the Dutch. 
 The Dutch occupation, however, was not of long continuance. By a 
 treaty signed at London, the States General relinquished the possession 
 of it to the English. On the 31st of October, 1674, it was formally sur- 
 rendered by the Dutch governor to Sir Edmund Andrys as the repre- 
 sentative of James II. , and it remained a British province until the 
 American Revolution. 
 
 THE FIRST WAREHOUSE. 
 
 1 5Eec. of N. Y. Burg, and Scnepen. 
 
34 HISTORY OP THE BENCH AND BAR OF TSTEW YORK 
 
 jfko v\sr» Boeck 
 
 Cfi-J{cryfi&f>dtr> 
 
 PER50NEN 
 
 &£&*>, oft eu.j±&vL V&Jc? 
 
 jStadf RLewYorke 
 
 CaAtiAr viiu. 8<Kt-S*£**»— , i^**«— . Va«. C^M.B'i *t*^ , <Hv_ 
 
 FACSIMILE, FIRST PAGE OF MARRIAGE AND BAPTISMAL RECORDS, OLD DUTCH CHURCH. 
 
ENGLISH COLONIAL POLITY AND JUDICIAL 
 ADMINISTRATION, 1664-1776. 
 
 HE first constitution of New York, as an English province, 
 consisted of (1) the patent of Charles II. to his brother the 
 Duke of York, dated March 12/22, 1664 (that is, three 
 months before the expedition for the subjugation of New 
 Netherland set sail) ; (2) the Duke' s com- 
 mission to Colonel Richard Nicolls, as his 
 deputy governor ; (3) Colonel Nicolls' s 
 proclamation to the inhabitants of Long 
 Island, from New Utrecht Bay, dated 
 August 18/28, 1664 ; and (4) the articles of 
 surrender exchanged eleven days there- 
 after. The habendum clause of the patent 
 is the same as in all the colonial patents. 
 The English plantations in America and 
 
 DUTGH COURTSHIP. 
 
 SEAL OF THE DUKE OF YORK. 
 
 elsewhere (including the 
 Channel Islands and Ireland, 
 as a conquest), belonged to 
 the king' s private domain or 
 demesne. He chose to con- 
 sider all his American pos- 
 sessions as attached to his 
 own Royal Manor of East 
 Greenwich, in the county of 
 Kent. Over these outlying 
 acres of American soil he ex- 
 ercised entire control, like 
 any other lord of a manor, 
 and hence could, at his pleas- 
 ure, devise them by will, or 
 grant them by deed. 1 The 
 rule of their government was 
 
 1 The right to alienate crown lands by grant at pleasure was taken away by I Anne, c. 
 consequence of the improvident alienations of land in Ireland by William III. 
 
 35 
 
36 
 
 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 the royal prerogative, except as it was expressly limited or excluded 
 by the terms of his grant. The parliament had no constitutional right 
 to interfere ; it was the king who as lord paramount, gave political 
 being to the colony, and bestowed such rights, or imposed such burdens 
 upon its inhabitants, as suited him. On any question subsequently 
 arising the patent or charter was the touchstone for its determination, 
 and popular discussion of its true interpretation became, therefore, a 
 habit of the people. Americans have never, from the first, lived under 
 any but written constitutions. 
 
 1. By his patent to the Duke of York, for the expressed considera- 
 tion of 40 beaver skins a year, the king surrendered to the patentee all 
 his royal prerogatives, including the making of laws, which "be not 
 contrary to, but, as near as conveniently may be, agreeable to the laws, 
 statute and government of this our realm of England." The only thing 
 reserved was the feudal supremacy of the crown, and "the receiving, 
 hearing and determining of the appeal and appeals of all or any person 
 or persons of, in or belonging to the territories or islands aforesaid, in 
 or touching any judgment or sentence to be there made or given. ' ' With 
 this mild reservation, there was given to " our dearest brother James, 
 Duke of York, his heirs, deputies, agents, commissioners and assigns, 
 full, absolute power and authority to correct, punish, pardon, govern 
 and rule " the inhabitants, "according to such laws, orders, ordinances, 
 
 CITY HALL AND "GREAT DOCK," 1670. 
 
HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 37' 
 
 directions and instruments as by him or them shall be established ; and 
 in defect thereof, according to the good discretion of his deputys, com- 
 missioners, officers and assigns respectively ; as well in causes and mat- 
 ters capital and criminal, as civil, both marine and others." Power was 
 also given "to ordain and establish all manner of orders, laws, direc- 
 tions, instructions, forms and ceremonies of government and magistracy, 
 fit and necessary for and concerning the government," also "to use and 
 exercise martial law in cases of rebellion, insurrection and mutiny." 1 
 The only other individual 
 proprietary of an American 
 province, at that time, was 
 
 Lord Baltimore, whose pat- 
 ent of Maryland, granted 
 by Charles I (June 20, 1632), 
 was- quite as liberal in its 
 grant of powers, but in the 
 matter of legislation, laws 
 were to be made only with 
 the assent of the freemen 
 of the province, except in 
 cases of emergency, and, 
 then, only ordinances not impairing 
 life, limb or property. 
 
 2. The Duke's commission to 
 Richard Nicolls, Esquire, whom he 
 appointed his deputy governor "to 
 
 perform and execute all and every the powers ' ' granted by the patent 
 was, in effect, a declaration that legislation for the province was to be 
 by ordinance, and not by statute. But the proclamation which the 
 Royal Commissioners (Mcolls, Cartright and Carr) issued and distri- 
 buted from New Utrecht Bay, on the arrival of the fleet, always 
 regarded by the then inhabitants as a constitutional guaranty, had 
 promised all those submitting to his Majesty's government the 
 protection of his laws and justice, ' ' and all other privileges with 
 his Majesty's English subjects." As it was the privilege — a palpable 
 fiction, nevertheless — of all Englishmen everywhere, to participate 
 in the making of their own laws, notoriously enjoyed by the contem- 
 porary colonists of New England, Maryland and Virginia — the sub- 
 sequent flagrant violation of this promise, by the Duke for 20 years after 
 the occupation, never ceased to be ground of more or less bitter complaint 
 by the English settlers of Long Island who largely outnumbered the 
 Dutch, and to whom the proclamation had been particularly addressed. 3 
 
 EARLY COMMERCE ON THE HUDSON. 
 
 1 The Duke's patent is said to have been drafted 
 nnder the direction of Lord Chancellor Clarendon, the 
 Duke's father-in-law, who had already bought out the 
 interest of Lord Sterling, nnder whose previous grant 
 the greater portion of Long Island had been settled by 
 English subjects. 
 
 a In October, 1669, the English towns of Hempstead, 
 Jamaica, Oyster Bay, Flushing, Newton, Gravesend, 
 West Chester and East Chester, petitioning for redress, 
 laid stress on the exclusion of the people from any 
 share in legislation, the right to which had been prom- 
 ised them by the proclamation. 
 
38 
 
 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 3. To the non-English inhabitants, however, the constitutional guar- 
 anty of chief importance was the stipulation of the articles of capitu- 
 lation (among others) that "the Dutch here shall enjoy their own 
 
 customs concerning their inheritances ; 
 that no judgment that has passed, any 
 judicature here shall be called in ques- 
 tion ; that all inferior civil officers and 
 magistrates shall continue as now they 
 are (if they please) until the customary 
 time of new elections, and then new ones 
 to be chosen by themselves, provided 
 such new chosen magistrates shall take 
 the oath of allegiance ; and that all dif- 
 ferences of contracts and bargains made 
 before this day, by any in this country 
 shall be determined according to the 
 manner of the Dutch." There is no 
 reason to believe that these guarantees 
 were ever deliberately repudiated by the 
 Duke' s government ; on the contrary, the Dutch law continued to be 
 administered by Dutch methods, and iu the Dutch language, in certain 
 of the purely Dutch towns like Albany and Esopus, until the re-occupa- 
 tion of the province by the English in November, 1674, after its re-con- 
 quest, and its occupation by the Dutch since August, 1673. Holland's 
 final cession of the province by the treaty of Westminster (Feb. 9/19, 
 1674), inasmuch as it contained no express reservation in favor of the 
 guarantees of 1664, was considered to have annulled them ; at least it was 
 so considered by the English part of the inhabitants, and the provincial 
 government as well ; but never by the Dutch of that, or of any subse- 
 quent, generation. To the last, they claimed the right of free trade 
 with Holland, under the article of the surrender, "that Dutch vessels 
 may freely come hither, and any of the Dutch may freely return home, 
 or send any sort of merchandise home in vessels of their own country." 1 
 
 SEAL OF NEW YORK, 1686. 
 
 1 So late as 1759, Lieut. Gov. Cadwallader Colden 
 wrote : " The Dutch of this province, it is probable, 
 think the articles of surrender are still in force and that 
 any breach of them is a piece of injustice to them, and 
 therefore, among other things, they may iu their own 
 minds justify themselves in carrying on the illicit trade 
 with Holland, in opposition to the (British) Laws of 
 Trade, which has been carried on from New York for 
 many years. 11 He then argues agaiustany such assump 
 tion (If. YJIist. So. Pub. (1868), 168). This was a fruit- 
 ful subject for hot debate in the province for many 
 years. On November 9th, 1674, ,the Duke's deputy 
 governor confirmed, by proclamation, " all former 
 grants, privileges and all estates legally possessed by 
 any under the Duke of York, before the late (Dutch) 
 government," which the Dutch claimed was only in 
 accordance with the law of post-liminy, under which 
 the interveping conquest operated merely to suspend, 
 
 not to extinguish their rights. Per contra, it was argued 
 that there had been no conquest; that the Dutch ships 
 had no thought of attempting the conquest of New 
 York, when in August, 1673, they came in under Staten 
 Island; but only to take in wood and water, knowing 
 that there was not sufficient force there to hinder them, 
 but that the Dutch inhabitants treasonably told the 
 Dutch commodore of the absence of the Governor and 
 a greater part of the garrison up the river, and of the 
 defenceless condition of the city, and invited him to 
 consent to take it, which he did without firing a gun; 
 that having voluntarily and without force renounced 
 their allegiance to the English crown and submitted 
 anew to Holland's, "they forfeited without doubt, all 
 privileges that they could claim by the articles of sur- 
 render." (Colden. Ibid, 184), Smith, (History of N.T., 
 ed., 1814, p. 61, n.) says : "In New York, the right of 
 post-liminy was disregarded and perhaps unknown." 
 
HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 39 
 
 The Judicial Status of New York. 
 
 But the judicial status of New York, while under the British crown, 
 is not determined by the terms of the Dutch surrender, nor by the fact 
 of its territory being ceded by the Dutch government to the English 
 king by the two successive treaties of Breda (July 21/31, 1667) and 
 Westminster (Feb. 9/19, 1674). The question of such status, under the 
 rules of international law, involves a larger survey of the field than this; 
 and although, after vexing our courts for several generations, it has 
 probably been now laid to rest as having no determining value in the 
 discussion of legal rights ; yet, as it must always arise in any attempt, 
 
 IjSt^IyAND* 
 
 Cthe ouke's plan!] 
 
 .1. 
 
 XD^CRIPtlON- OFTHE 
 ^■TOWNE OFJVLANNADOjS: 
 :ORNEwA5JST)&RpAM: 
 
 ' t. I. ! teB faal. 
 
 OMY'l'SNIVH-aHJ, 
 
 PLAN OF NEW AMSTERDAM IN 1661. 
 
 however slight, to trace the history of our jurisprudence, a brief state- 
 ment of the matter is pertinent. 
 
 To know what the original common law of New York was, and to 
 trace its development to the present time, one must learn what changes 
 have taken place in its sovereignty ; so that, from a lawyer's point of 
 view, it may become important to know whether, at a particular 
 period, the seat of the sovereignty of New York was in London, or at 
 the Hague ; for, by an ancient fiction of law, the sovereign is regarded 
 as the sole owner and lord paramount of all the land of his kingdom and 
 its dependencies, individual holders taking title from him, though no 
 grant of his is provable by any record or otherwise; and by another 
 conceit of jurists, he is the fountain of justice and the author, mediately 
 or immediately, of the law of the land, so that no law or ordinance, as 
 law, can obtain in any part of his dominions without his consent, express 
 
40 
 
 HISTORY OP THE BENCH AND BAR OE NEW YORK 
 
 or implied. The ultimate sovereignty of this territory had been claimed 
 by Great Britain, Prance, and by the United Provinces .of the 
 Netherlands. The French king founded his title to northern New York 
 on the fact that his subjects had, first of Europeans, ascended the 
 St. Lawrence and its tributaries, including Lake Champlain, and had 
 explored and occupied their shores. In like manner, the Netherlands 
 claimed all the country lying between the Connecticut and Delaware 
 Rivers, and the lands drained by them, upon the alleged fact of their 
 having been the first of Europeans to ascend these rivers, and others in- 
 termediate from the sea, and to explore and settle their shores. On the 
 other hand, the English king' s title was based on the ultimate fact of 
 
 Cabot' s discovery of 
 1497, under the com- 
 VII., followed, in 
 occupation at dif- 
 sea coast by English 
 crown grants, prior 
 any occiipation of 
 by the Dutch, who 
 regarded as mere 
 passers and squat- 
 of New England 
 tween whom they 
 selves. The English 
 tested to the gov- 
 
 GREAT SEAL OF 1691. 
 
 the continent, in 
 mission of Henry 
 due time, by actual 
 f erent points on the 
 subjects, under 
 in point of time to 
 contiguou s territory 
 were consequently 
 interlopers, tres- 
 ters by the English 
 and Virginia, be- 
 had wedged them- 
 governmenthadpro- 
 ernment at the 
 
 Hague against this unwarranted invasion of English territory from 
 time to time, both under the monarchy and the commonwealth, ever 
 since the year 1614, but for one reason or another, easily comprehended 
 when the domestic history of England for the first half of that century 
 is considered, had not found it convenient or politic to vindicate the 
 British title until 1664, shortly after the restoration of the monarchy. 
 
 According to a contemporary historian, "there is nothing more 
 perplexing than the delicate relations, in history, of cause and effect, 
 whether in the event, or in the recorders of them. There seems to be 
 nothing to check dependent progress, if we travel back over the annals 
 of the world. Who would have thought that when Henry VII. of Eng- 
 land gave to the Venetian, John Cabot, and his three sons, the right to 
 discover western lands, he would have determined the fact of the fee 
 of the road-way of the New York Bowery, as really happened the other 
 day ? " ' Such is not quite the fact ; but the records of our courts, both 
 of the province and of the state, abound with cases calling for the judi- 
 cial determination of property rights of great value, not only in high- 
 ways, in rivers and streams, but inheritances, which were supposed to 
 depend upon whether the Dutch government was ever vested with the 
 territorial sovereignty of this state, as against England, and, therefore, 
 
 1 Justin Winsor, "The Perils of Historical Narrative," the Atlantic Monthly, September, 1890. 
 
HISTORY OP THE BENCH AND BAR OV NEW TORE 41 
 
 THE 
 
 LAWS & ACTS 
 
 Of THE 
 
 (general gffemWp 
 
 FOR 
 
 Their Majefties Province 
 
 NEW-YORK, 
 
 As they were Ena&ed in divers Seffions, theftrftof 
 which began April> the 9th, Annoy,. Domini, 
 
 1691* 
 
 
 3tSjt2»c3ia« 
 
 At New-Torfa 
 
 Printed Sold by W*rHHJ»« MajeftieS, King 
 r jfeto & Queer**/*?, *.*$'+ 
 
 FROM COPY IN SOCIETY LIBRARY. 
 
42 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 whether the laws and. ordinances of that government, promulgated here 
 during its forty years of occupation, ever had any force and validity as 
 law, and so, surviving the English occupation of 1664, still control the 
 use and enjoyment of those rights. In examining these records, one 
 knows not which to admire most, the persistent efforts of successive 
 generations of lawyers to convince the court that the matter at bar was 
 governed by the Dutch and not the English law, or vice versa, because the 
 one or the other was the law of the sovereign of the land when the 
 particular right arose — or the ingenuity of the judges, who, generally 
 ; speaking, have succeeded in dodging the question by finding some less 
 interesting and quite common-place solution of the controversy. At 
 
 
 ■^jSW" // T/t* J'alty/.ort 
 
 PVA NATION. 
 /./& CAt-p&f 
 
 J.TAe. 0ffi,'cess Jttu&ptrtyt. 
 
 S. TAo Jfecc/sartf J&km- 
 
 T. 7 TAe- -fen/ty Saxetf 
 
 S ' f^Z.idder* & frioustf 6A* trail*. 
 
 £ FAe ■#&•/ en £A* /brC 
 
 /£. TAe ifccredaf-jfi 0ffUc. 
 /J. r/t£- For? 0a& 
 
 /■/, vfAem> trcrA SefivV- W* 
 
 /T TAt Fort/HUl JZ/-i*mp. 
 /G.J'fonc tneustt 
 Jr.TA* Jron meutrf- 
 /#. Z'Ae Ibxvi *ri0U*ii£~ 
 
 Xo Ulwn, s&fe ' 
 
 J/ Grwtstt€ Jhr £44&£c/x.0naC 
 
 4u*ke£t-n*f So SAc (ktrarsuvf Jfret+e.- 
 
 bottom, these forensic contests are attempts to establish what was the 
 original common law of New York ; — was it the common law, and ap- 
 plicable statutes, of England, existing in England at the time of the 
 occupation in 1664, or was it something more or different ? If the reduc- 
 tion of the Dutch was a conquest, and England took ' ' title by conquest, ' ' 
 as understood by the law of nations, which is a part of Anglo-American 
 common law, the change of sovereigns from Dutch to English did not, 
 ipso facto, change the system of law theretofore established, or affect 
 existing property rights or incidents of tenure, but the same remained 
 after the conquest, and inured to the benefit of every successor in 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 43 
 
 interest of the original Dutch grantee, unless expressly abrogated by the 
 conqueror. On the other hand, if the English military expedition, 
 which compelled the surrender of the Dutch province and the submis- 
 sion of its inhabitants to the sovereignty of Great Britian, did not effect 
 "a conquest," but, at most, a forcible entry upon her own territory, in 
 vindication of her own anterior title and sovereignty, as well founded 
 as her title and sovereignty to Massachusetts or Virginia, then the 
 Dutch law, ordinances and customs never had any validity, as law, and 
 ceased, instanter, on the entry of the English. So, too, if the king's 
 original right of pre-emption in the soil be conceded, his deed of con- 
 veyance, before actual entry, was good in law, and the Duke acquired 
 a perfect title. 
 
 As to the effect of the English occupation, ipso facto, to displace 
 Dutch law existing here, by introducing English law, it is to be borne in 
 mind that, up to this time, all of England' s colonies originated in immigra- 
 tion ; not one of them was acquired by conquest, with the doubtful 
 exception of the Spanish island of Jamaica. In all her long subsequent 
 career of conquering and annexing French, Spanish, Portuguese and 
 Dutch colonies, in all quarters of the globe, she left them their own laws 
 intact. Hence, in Guiana, in the Cape of Good Hope, and in Ceylon, 
 each afterwards acquired by conquest from the United Netherlands, the 
 Roman-Dutch law, as it prevailed in Holland, at the time they were 
 respectively conquered, is still at the bottom of their jurisprudence. 
 But in the case of New York, that law, except as the articles of sur- 
 render expressly allowed it to survive in certain particulars, was never 
 recognized by any English or provincial court, or by crown lawyers, as 
 having any operation here, as law, after the surrender, or as governing 
 any of the incidents of land tenure acquired in the province before that 
 date. Ever since then, both before and after the Revolution, the courts 
 of this state appear to have ignored the fact of the Dutch occupation, 
 or, when called on to consider the legal consequents of that occupation 
 upon our jurisprudence, have hopelessly divided on the question, 
 whether New York was to be considered, in law, as acquired by con- 
 quest, or on the other hand, was, like Massachusetts or Virginia, an 
 English possession by original right, into which the common law and 
 the statutes of the realm then in force, so far as they were applicable 
 to the condition of the province, followed the surrender as certainly as 
 they followed the first settlement of the other English colonies to the 
 east and south of it. The difference between a conquered or ceded 
 territory, and a plantation made by immigration and settlement, on a 
 previously uninhabited territory, or only inhabited by aborigines, is an 
 important factor in determining the question, in English jurisprudence, 
 of what law governs the one or the other. As to the original right of 
 England, to what is now New York, as against the Netherlands, on the 
 one hand, and France, on the other, diverse opinions have been ex- 
 pressed by judges, law-writers and historians, which the curious in such 
 
44 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 studies may find interesting, but which the spare at command here 
 does not admit of being even cursorily considered. 1 
 
 The Hempstead Convention, and the Nicolls Code. 
 
 All writers agree that in settling the first government of New York, 
 a task requiring, under the circumstances, no mean abilities, Colonel 
 Nicolls showed a wise reluctance to interfere with the Dutch administra- 
 tion he found in efficient operation here. The authorities of the Dutch 
 towns, such as Beaverwyck, Rennsselaerwyck and Esopus, on the upper 
 Hudson, and of New Amsterdam and the purely Dutch towns in what 
 is now Kings County, continued to administer their small affairs, and to 
 distribute justice, in their own way. The really restive and even sedi- 
 tious towns were those of a mixed population which had been founded 
 by New Englanders in the times of Kieft and Stuyvesant, such as New- 
 town, Flushing, Hempstead, New Utrecht and Jamaica, and West 
 Chester and East Chester, but more especially the purely English towns, 
 in what is now Suffolk County, never under Dutch government, but 
 settled under the jurisdiction of Connecticut, except Southold, the 
 oldest town on the island, which had elected to belong to the jurisdic- 
 tion of the New Haven colony. These militant towns, which had turned 
 out an armed force to assist in the subjugation of New Amsterdam, in 
 response to the royal proclamation, on the arrival of the fleet, were by 
 no means satisfied to lose their connection with Connecticut, with whose 
 religion and system of government they were in complete sympathy. 
 Nicolls had promised them, two days after the surrender, that " Depu- 
 tys shall in convenient time and place be summoned to propose and give 
 their advice in all matters tending to ye peace and benefit of Long 
 Island." Accordingly on March 1/11, 1665, a convention of two dele- 
 gates from each of the sixteen towns on Long Island and from the town 
 of Westchester, on the mainland, was convened at Hempstead, to whom 
 the deputy -governor submitted a code of laws, since called the Duke's 
 laws. That part of it dealing with capital offences was palpably adopted 
 from the Mosaic Code of Connecticut, the only difference being in drop- 
 ping the scripture wording and the bible-texts cited in the original. 
 The record of only one of the two or three days' session survives, but it 
 is pretty certain the delegates were expected to accept without debate 
 the decree of the Duke' s deputy, though it is said that some changes 
 were suggested and accepted as to particular provisions. The conven- 
 
 1 Mr. Robert Ludlow Fowler, of our bar, has eluci- juridical history. The question of the validity of the 
 
 dated this question, and has given an account of its grants of vaBt tracts of land on both sides of Lake 
 
 progress through our courts, as no one elBe has, or per- Champlain, made by the French provincial government 
 
 haps could, with equal force, in a series of articles on at Quebec, provoked vehement discussion in the New 
 
 the "Organization of the Supreme Court" vol. xix. of the York Assembly in 1773, when it published a vindication 
 
 Albany Law Jaurnat. "His History of Heal Property of the British title, as founded on "original right," by 
 
 in New York," his introduction to the Grolier Club's virtue of Cabot's discovery, and not by conquest. The 
 
 publication of "Bradford's Laws," and his chapters on question was argued before Kent Ch. J., in Jackson ex 
 
 the Constitutional History of the State, contributed to dem. Winthrop v. Ingraham 4 Johns. 163, but the judg- 
 
 the "Memorial History of New York," are of the first ment proceeded on other grounds, 
 importance to any intelligent understanding of our 
 
HISTORY OF THE BENCH AND BAR OE NEW YORK 45 
 
 tion was a mere pretense of popular participation in legislation, and 
 deceived no one. It merely served as an occasion to promulgate the 
 proprietary's will. After signing a hypocritical address to His Koyal 
 Highness, in which their " cheerful submission to all such laws, statutes 
 and ordinances which are, or shall be, made by virtue of his authority" 
 was declared, the delegates adjourned without day, to meet, on re- 
 turning to their constituents, an exceedingly uncomfortable reception. ' 
 Although neither New York, Albany, or Esopus ( Kingston ) was repre- 
 sented at Hempstead, for the reason, perhaps, that it was only intended 
 for the towns on Long Island and Westchester, where the English 
 predominated, this code came into operation in time throughout the 
 province. The alphabetical arrangement of its subjects and their treat- 
 ment clearly indicate that its compiler was assisted by some one who 
 was familiar with contemporary New England codes, as well as with 
 the general features of Dntch administration and judicial methods, — 
 particularly compulsory arbitration ( or references) — a practice which, 
 in some form or other, has been a characteristic of New York procedure 
 ever since. This code, along with additions made to it from time to time 
 for the next twenty-five or twenty-six years, were declared ' ' null and 
 void and of no effect nor force, in this province ' ' by the first general 
 assembly after the revolution of 1688, as being "contrary to the con- 
 stitution of England, and the practice of the government of their 
 majesties other plantations in America." Our first historian, writing 
 about 1757, says that all "laws made here antecedent to this period 
 (1691) are disregarded both by the legislature and the courts of law ; 
 the validity of the old grants of the powers of government, in several 
 American Colonies, is very much doubted in this province." 2 But it 
 • was never doubted in England. While general legislative power for 
 England was never claimed by any of her sovereigns, it was never 
 doubted that the crown possessed this high prerogative power over the 
 colonies, and that this power was communicable to a subject. In New 
 York, the Duke of York' s deputy -governor might, as he did, declare 
 that " no jury shall exceed the number of seven, nor be under six, unless 
 in special causes upon Life and Death, the justices shall think fit to 
 appoint twelve," — the verdict, in civil cases, to be by a majority vote 
 and perjury to be capital felony in certain cases. But in England, we 
 are told, " the most violent and imperious Plantagenet never fancied 
 himself competent to enact, without the consent of his great council, 
 
 1 In October, 1666, an ordinance wag recorded by the Eastchester, on the mainland, petitioned for an assembly 
 Court of Assize "that whosoever hereafter shall any of delegates to advise about and approve laws " with ye 
 ways detract or speak against any of the deputies sign- Governor and his Council as may be for ye good and 
 ing the address to his Royal Highness, at the general benefit of ye common wealth," according to the promise 
 meeting at Hempstead, they shall be presented to the made by Governor Nicolls and the rest of the royal 
 next court of sessions, and if the justices shall see cause, commissioners. For answer, they were told that "it 
 they shall from thence be bound over to the assizes, doth not appear that Col. Nicolls made any such prom- 
 there to answer for the slander upon plaint or informa- ise," and moreover the governor's instructions forbade 
 tion. 11 In November, 1669, under the governorship of his making any alterations in "ye Lawes of ye govern- 
 Nicolls's successor, Francis Lovelace, the English towns ment settled before his arrival. 11 
 on Long Island and the towns of Westchester and 2 Smith, "History of New York, 11 124, note. 
 
46 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 that a jury could consist of ten persons, instead of twelve, that a 
 widow's dower should be a fourth, instead of a third, that perjury 
 should be a felony, or that the custom of gavelkind should be intro- 
 duced into Yorkshire." 1 
 
 Nicolls's Judicial Organization. 
 
 The only part of the scheme of laws promulgated by the Duke's 
 deputy at Hempstead which can be given here is that establishing a 
 judicial organization for the new government. A town court was estab- 
 lished for each town, composed of a constable and two overseers, who 
 might be assisted by a justice, having jurisdiction of civil actions under 
 £5 ; also a court of sessions for each of the three ridings (into which 
 Long Island and the two towns of Westchester and Eastchester were 
 divided) to be. held twice a year, composed of justices of the peace, 
 having cognizance of all criminal cases and of all civil cases over £5 ; 
 its judgments for sums under £20 being final. Judgments over that 
 amount were appealable to a general court of assize, which was com- 
 posed of the governor, his council, and the magistrates of the several 
 towns, convening in the City of New York. This high court had 
 original jurisdiction of all criminal prosecutions, and of civil actions for 
 the recovery of more than £20, and was the final court of appeal, except 
 as it permitted a further appeal to the crown. It was, also, made a 
 vehicle, a veritable lit de justice — for promulgating and recording the 
 ordinances of the Duke and his council in England, and those of his 
 deputy and council here. Its territorial jurisdiction was as extensive 
 as the Duke's possessions, and therefore included the Pemaquid country 
 (between the Saint Croix and the Kennebec, in Maine), Martha' s Vine- 
 yard, Nantucket, Fisher's and Gardiner' s Islands, some of the towns 
 now in Connecticut, New Amstel, now Newcastle, in Delaware, and, for 
 a portion of its history, New Jersey, besides of course, New York 
 proper as far north and west as Schenectady. 
 
 New York City Municipal Court. 
 
 In June following the promulgation of his code of laws, Nicolls 
 set about to reorganize the Burgomasters and Scheppens' Court, the 
 municipal court of New York City. He issued a proclamation (June 
 12/22, 1665), in which, after reciting his commission and authority, and 
 that, upon mature deliberation and advice, he had thought it necessary 
 to "revoke and discharge the form and ceremony of this government of 
 this his Majestie's town of New York, under the name or names, style 
 or styles of Scout, Burgomaster and Scheppens," he so declared them 
 revoked and discharged. And then, " for the future administration of 
 justice, by the laws established in these the territorys of his Royal 
 
 1 Macaulay, "History of England," i., 35. But Lord acquired by conquest or cession, was absolute, and not 
 
 Mansfield, though known to have highly rated the royal merely arbitrary. (Campbell v. Hall, Cowp. 209; SO 
 
 prerogative, discountenanced the idea that the crown's - Howell's St. Trials, 823.) 
 power of legislating for the colonies, especially those 
 
HISTORY OF THE BENCH AND BAB OF NEW YORK 47 
 
 SEVERAL 
 
 L A W S' 
 
 Orders & Ordinances 
 
 Eftablifhed by the 
 
 MAYOR' 
 
 Recorder, Alder-men and Afliftants 
 
 O F T H E 
 
 Cftp of j^eto-fo^, 
 
 Conven'd in Common- Council f 
 
 For the good Rule and Government of the Inhabi- 
 tants of the faid City. And pubJiflled this 28th Day of 
 March-, in the Mayoralty of William Pcartree, Efcj- 
 Anno Domini iJOJ 
 
 Printed and Sold by William Bradford at the Sign of the Bible m 
 the City of New-York, ijoj. 
 
 FROM COPY IN LENOX LIBRARY. 
 
48 HISTORY OF THE BENCH AND BAB. OF NEW YORK 
 
 Highness, wherein the welfare of all the inhabitants, and the preserva- 
 tion of all their rights and privileges granted by the articles of this 
 town upon surrender under his Majestie's obedience are concluded," he 
 declared ' ' that by a particular commission such persons shall be author- 
 ized to put the laws in execution in whose abilities, prudence and good 
 affections to his Majestie's service and peace and happiness of this gov- 
 ernment, I have especial reason to put confidence in, which persons so 
 constituted and appointed shall be known and called by the name and 
 style of Major (Mayor), Aldermen and Sheriffs, according to the custom 
 of England in other his Majestie's corporations.'' 1 
 
 On the same day, an ordinance was issued which, after reciting 
 that it had been found necessary "to discharge the form of government 
 late in practice * * * to the end that the course of justice for 
 the future may be loyally, equally and impartially administered to all 
 his Majesty's subjects as were inhabitants as strangers," the inhabi- 
 tants of Manhattan Island were declared to be forever accounted, 
 nominated and established as one body politique and corporate, under 
 the government of a mayor, aldermen and sheriff." 2 For the first year, 
 Thomas Willet was appointed to be Mayor, Thomas Delavall, Olaffe 
 Stuy vesant, John Brugges (or Johannes Van 'Burgh) Cornelius Van 
 Ruyven and John Lawrence (or John Laurens) to be aldermen, and 
 Allard Anthony (the last Dutch schout) to be sheriff. To the mayor 
 and aldermen or any four of them, full power and authority were given 
 to rule and govern ' ' according to the general laws of the government 
 and such peculiar laws, as are or shall be thought convenient and neces- 
 sary for the good and welfare" of the corporation^, and to appoint other 
 officers " for the orderly execution of justice." 3 
 
 Three days after receiving their commissions, these gentlemen met 
 at the Stadt Huys, and organized as a court, called the Mayor's Court, 
 which continued under that name for a hundred and fifty-six years, 
 when its jurisdiction was transferred to other tribunals. The Mayor' s 
 Court was the court of sessions for the city, as the justices of the peace 
 of the country towns composed their sessions court. The records were 
 directed to be kept in Dutch and English ; the secretary of the old 
 court, Johannes JSTevius, was retained, and, with the exception of intro- 
 ducing jury trials, unknown to Dutch procedure, there was no change 
 in the method of doing business. They first met for the trial of civil 
 causes on June 27, 1665, when a jury was impaneled (without doubt 
 the first in New York county ) in the case of Francis Douty ( Doughty) 
 
 1 Gen. Ent. i., 120-121. letters patent and grants and confirmations not only of 
 
 3 This is not to be taken as the first charter of incor- divers governors and commanders in chief of the Nether 
 
 poration of the city. It was first fully incorporated as a Dutch Nation, while the same were under their power 
 
 city with power to levy taxes for its own support, in and subjection," were recited and confirmed. New York 
 
 May, 1654, under the Dutch regime, and was recognized City is consequently the oldest municipal corporation 
 
 as a corporate city by Governor Dongan's charter of in the United States. 
 
 1686, in which all its "rights, liberties, privileges, emol- 8 Gen. Ent., i, 122-123. 
 junents- e*c. ao well by prescription as by charter, 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 49 
 
 against John Haixman and Khellum Winslow. The record, which is 
 brief, may be worth transcribing, if for no other reason than it shows 
 an instance of a compulsory reference of a part of the issues, a common 
 enough procedure under the Dutch rule, but practically unknown in 
 English procedure. The judgment ( which is the only indication the 
 record gives of the nature of the action ) was as follows : " The Court 
 doth order that the partyes shall deliver in their evidence to the follow- 
 ing juries, to wit : Caleb Burton, Isaacy Bedow, Christ. Hoogland, 
 Balek de Heert, Wm. Dornel, James Ballaine, John Garland, John 
 Browne, Charles Bridges, John Dawrel, Thos. Carvet, Samuel Edsal. 
 The juries doe judge that the defendants shall pay the plaintiff soo 
 much as he shall appeare by true accounts due unto him from the 
 defenders, besides the costs and damages of the Court. The Honable 
 Court does allowe off the above sd Judgment, and Nominates for to 
 view, examine and make up the accounts betwixt the partyes from the 
 tyme that the Bark was sould to Mr. Tatcher til the time that she was 
 returned again to the said Douty, to wit : William Jacob Backer, 
 William Isaacy Bedloo, William Balthazar De Hsert and Mr. Samuel 
 Edsal" (two of the jurymen and two outsiders). 1 
 
 The General Court of Assize, 1665-1683. 
 
 The first session of the General Court of Assize convened at the Port, 
 in New York, on the last Thursday (the 28th) of September, 1665, and 
 adjourned the 4th of October. By its constitution, it was composed of 
 the governor and his council, and two justices of the peace of the three 
 several precincts, or ridings, who held courts of sessions for the towns 
 or villages included in them respectively. But the records do not show 
 any general attendance by justices from a distance, and their attendance 
 appears to have been optional, or subject to the summons of the gover- 
 nor. Whenever, on the information of an aggrieved person, the 
 governor was satisfied of the necessity of having justice done, before the 
 next annual meeting of the court, he issued a warrant for a special 
 session to try the cause ; or, on an information exhibited to him of a 
 public offense, like a violation of the navigation laws, or a capital crime 
 certified to him by the court of sessions, he issued a commission (gen- 
 erally addressed to the mayor and aldermen) for a court of Oyer and 
 Terminer to try the offender, where more than two months would elapse 
 before the next session of the Court of Assize. There are extant but 
 two volumes of the records of the Court of Assize, one covering the 
 period from September 28, 1665, to December 7, 1672, which is in the 
 State Library at Albany; the other for the period from October 6, 1680, 
 to October 6, 1683, is in the library of the New York Historical Society, 
 
 ' Clerk Johannes Nevius' English is as yet imperfect. The curious reader will find several excerpts from the 
 Records of this Court in Valentine's Manual for 185?, p. 482, et seq. 
 
50 HISTOBY OF THE BENCH AND BAR OF NEW YORK . 
 
 both., in a good state of preservation. ' The earlier records are in the 
 clerkly handwriting of Mathias Nicolls, a namesake, and perhaps a 
 relative, of Colonel Nicolls, with whom he came out, and who appointed 
 him a member of his council, and secretary of the province. As secre- 
 tary, he was, ex officio, clerk of the court. By virtue of his office, he 
 was entitled to sit in courts of sessions in the several ridings, and fre- 
 quently did so in Queens County, where he was a large land owner. 
 He was mayor of New York in 1672, speaker of Dongan's assembly of 
 1683, and was on a commission of Oyer and Terminer, the same year. 
 He was a barrister of Lincoln' s Inn, a man of character and capacity, 
 and was highly esteemed. He is supposed to have died about 1690. 
 The records of this interesting tribunal, with a territorial jurisdiction 
 reaching to Pemaquid, in Maine, on the east, and to Newcastle, on 
 the Delaware, on the south, 2 have deserved a better fate than has 
 attended them. The record of its session held in New York, October 6, 
 1680, gives the names of the members of the court, as then present, "the 
 Eight, Hon. Sir Edmund Andross, Governor," and his council, five in num- 
 ber, naming them. Then follows: "Francis Rumbout, mayor of the City 
 of New York, ' ' and five aldermen ( naming them ) : Richard Betts, High. 
 Sheriff of Yorkshire (Long Island), and the names of four justices of 
 the East Riding, one justice of the North Riding, three justices of the 
 West Riding ; two commissioners of Albany, one justice of Esopus, 
 three justices of New Jersey, " John Gardiner, Chief Justice of Nan- 
 tucket," and two justices of Pemaquid, Cogear Knapton and John West. 
 It must be remembered that besides distributing justice, the Court of 
 Assize was a quasi legislature. Its records consist of ordinances, pre- 
 scribed forms of summonses and subpoeneas, commissions of officers, 
 oaths of allegiance and of office, letters of denization, popular petitions 
 and the answers thereto, besides the details, with reasonable fulness, 
 of cases on appeal from inferior courts, and of trials in civil, criminal, 
 equity, admiralty and prize cases, exchequer cases, and what not. As 
 the regular term of the court was held but once a year, and its business 
 was generally completed within a week, the governor was frequently 
 called upon, in the interim, to hear motions in causes of one kind or 
 another, 3 not admitting of delay. 
 
 i The province having been recaptured by the Dutch with costs. It is worth mentioning that, at this same 
 
 In September, 1673, was occupied by them, from that term, in one case, in which there had been an affirmance, 
 
 time to October of the following year, during which the appellant "craves an appeal to the King and 
 
 period the old Court of Burgomasters and Scheppens Council 1 which is granted giving Security according to 
 
 was re-established. Its recordsare, with those of the old law." 
 
 court, now in possession of the clerk of the board of s Here is a specimen order found in " General Ent- 
 
 aldermen. If any records of the Court of Assize are ex- ries," Vol. 1, p. 82. " Under the petition and complaint 
 
 tant, for the period after the re-occupation by the " of Andrew Messenger, who hath made his appeal 
 
 English up to October 6, 1680, the writer has not seen "unto me concerning a judgment which hath past 
 
 them. " against him in your courtB, as he Bupposeth very 
 
 a At the February term of the court held 1679-80, an " wrongfully, I do hereby request and demand that you 
 
 appeal was heard "from a verdict and judgment given "proceed no further in the case, but that you with 
 
 at the Court of the Whorkill"— that is, on the Dela- " those that are concerned appear before me on Thurs- 
 
 ware. The judgment below, which was "for the de- " day the 2d of February, next, in the forenoon, that I 
 
 fendant for title of land called Willinfcbrook, 'first " may the better understand the matters in difference 
 
 BUrveyedfor, seated and improved by him, 11 wasaffirmed "between you and give you my opinion thereupon. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 51 
 
 The minutes of the court, or the record of its daily proceedings in- 
 terna time, are full enough to give a good idea of the merits of any 
 particular controversy, and, taken together, furnish a tolerably clear 
 picttw^of the social and economic condition of the province for the 
 first eighteen years of the English dominion. One cannot say that the 
 records disclose* any instance of outrageous injustice, or serious depart- 
 ures from judicial propriety, but its 
 verdicts were sometimes set aside 
 by the governor and council, in 
 consideration, as the record says v of 
 "the equity of the case." Thus, 
 on the first day of the first term of 
 the court ( September 28, 1665 ), the 
 case of John Richbell against the 
 inhabitants of the town of Hunting- 
 ton was tried before a full bench, 
 Governor Nicolls presiding, and a 
 jury of seven. Mr. John Rider 
 appeared for the plaintiff, who, the 
 record says, " declares upon an ac- 
 count of trespass for that the def ts' 
 have given plaintiff unjust mole- 
 station, in the possession of a cer- 
 tain parcel of land, commonly 
 called Horse Neck, to his damage, 
 etc., whereupon he brings his suit." 
 The plaintiff proved his title through mesne conveyances from one 
 Daniel Whitehead " who was the first purchaser thereof from the 
 natives"; he then proved a subsequent " confirmation thereof from the 
 Grand Sachem Wyandance, which was produced." The plaintiff 
 
 LORD LOVELACE. 
 
 " Given under my hand at James Fort in New York, 
 " this 10th day of January, 1GG4-5. Richard Nicolls. 
 "To the Magistrates of Jamaica." 
 The following order was made by Governor Lovelace 
 in 1669. It appears by the recital that Captain John Carr 
 (the commandant on the Delaware) had laid an attach- 
 ment upon some debts there due to John Garland of 
 New York by Isaack Bedlow, which the latter had paid 
 over to Carr. The governor's order, which is addressed 
 to "William Torn as Attorney to Mr. John Garland, 1 ' 
 after the recitals, says: "these are to authorize and 
 "appoint you that yon forewarn him the said Captain 
 "Carr from intermeddling any more in that matter. 
 "And the said John Garland hath hereby liberty by 
 " himself or his attorney 
 " to ask, demand, sue 
 ' f or,recover and receive 
 "all those debts in the 
 "same specie agreed on 
 "and according to t h e 
 " contract made with the respective debtors. And if it 
 " shall appear that the said Carr hath received any part 
 " of the same in any other pay, he is to make it good to 
 " Mr. Garland or the debters are to make payment of it 
 
 u against the said John Garland or his order having paid 
 "the former in their own wrong. Given &c, 5th day 
 " of August, 1669." 
 
 We give one more instance of Lovelace's summary 
 method of vacating au attachment: One Arthur 
 Strangeways was a carpenter engaged in building a 
 house at Newtown for one Ralph Hunt, but the governor 
 required him to work upon a ship he himself was 
 building, whereupon he left Mr. Hunt's employment 
 Hunt at once got out an attachment against the carpen- 
 ter for breach of covenant and levied upon certain moneys 
 owing to him by Arthur Hotchman and one John Smith; 
 which coming to the knowledge of the governor, he 
 made an order August 6, 1669, addressed to the justice 
 of the peace, constable and overseers at Newtown, which 
 commanded them (inasmuch as carpenter Strangeways 
 had been hindered in his contract to build Hunt's house 
 "upon the account of working as a carpenter at my 
 ship, which is a public employment tending to the good 
 of the country in general") " to cause the said attachment 
 to be taken off from both the said sums, the said Arthur 
 Strangeways being free from any other private engage- 
 ment of work as long as he is employed by me." 
 
52 HISTORY OP THE BENCH AND BAR OF NEW YORK 
 
 having rested, (the record proceeds), "Mr. Leveredge, attorney for the 
 defendants, in answer to the pi't's declaration, denies the unjust 
 molestation, and pretends the want of timely benefit of the declaration. 
 He argues the def'ts title to Horse Neck to be more valid, as being 
 more ancient than the pi't's." The town of Huntington founded 
 its title, through mesne conveyances, 'from the founders of Oyster Bay, 
 who purchased large tracts of land in the neighborhood from the 
 natives, long before the Grand Sachem Wyandance' s confirmation of the 
 deed to the plaintiff's grantor. But the great defect in defendant's 
 case was that Horse Neck was not mentioned by name in the Oyster 
 Bay deed, and plaintiff, in rebuttal, showed that it was "reserved by 
 the Indians at their sale, for hunting," by the testimony of several of 
 the original purchasers of the Oyster Bay and Huntington land. The 
 substance of the testimony, and of the arguments of the respective 
 counsel, is readily perceived, and the record is quite equal to the work 
 of a modern newspaper reporter of court proceedings. "After a long 
 debate of the cause on both parts, it was referred to the jury, who next 
 morning brought in their verdict, as followeth, viz. That upon serious 
 consideration of the cause depending between Mr. Bichbell, and the 
 town of Huntington, weighing all the evidence, we find for the defend- 
 ant, we finding that the ancient de'ed is the right of the town of Hunt- 
 ington, wherein we find, by the bounds of Huntington' s deed, and by 
 evidence, that Horse Neck ( which is in the controversy ) be within the 
 bounds of Huntington's deed, unless further light can be made appear 
 unto us by the honored governor and council, and that the plaintiff shall 
 pay all costs, and charges depending upon this suit." The record 
 proceeds, and concludes as follows : 
 
 " The court having heard the case in difference between the pl't 
 and defendants debated at large, concerning their title to a certain 
 parcel of land commonly called Horse Neck, and having also seen and 
 perused their several writings and evidences concerning the same, it 
 was committed to a jury who brought in their verdict for the defend- 
 ants, upon which the court demurring did examine further into the 
 equity of the cause and upon mature and serious consideration, do find 
 that the said parcel of land called Horse Neck doth of right belong to 
 the pl't, it being purchased by the said pl't for a valuable con- 
 sideration, and by the testimony of the first purchasers under whom 
 the defendants claim was not conveyed or assigned by them to the de- 
 fendants, with their other lands, upon which and divers other weighty 
 considerations, the court doth agree, that the said parcel of land called 
 Horse Neck doth of right belong and appertain unto the plaintiff and 
 his heirs. And it is hereby ordered, that the high sheriff or under 
 sheriff of the North Hiding of Yorkshire upon Long Island, do forth- 
 with put the said plaintiff, or his assignes, in possession thereof. 
 And all persons are hereby required to forbear giving the said pl't 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 53 
 
 or his assignes, any molestation, in the peaceable and quiet 
 enjoyment of the premises." 1 
 
 As might be expected, in a newly settled country, there was a 
 good deal of litigation over land titles, but the records disclose a wide 
 range of judicial business, from petty civil cases to indictments for cap- 
 ital offences, including one against Ralph Hall, and another against his 
 wife, for that they, "by some detestable and wicked arts, commonly 
 called witch craft and sorcery, did (as is suspected) maliciously prac- 
 tice and exercise at the said town of Seatalcott [Brookhaven], &c, on 
 the person of George Wood, late of that place, by which wicked and 
 detestable arts, the said George Wood (as is suspected) most danger- 
 ously and mortally sickened and languished, and not long after, by the 
 aforesaid wicked and detestable arts, the said George Wood (as is like- 
 wise suspected) died." There was a second count for bewitching the 
 infant child of the widow of said George Wood. The case was tried 
 October 2, 1665. Both of the prisoners pleaded not guilty, ' ' and 
 threw themselves to be tried by God and the country." The record 
 says, that "thereupon several depositions, accusing the prisoners of the 
 facts for which they were indicted, were read, but no witnesses appeared 
 to give testimony in court viva voce." Nevertheless, " the case was 
 referred to the jury who brought in the following verdict : We have 
 seriously considered the case committed to our charge, against the pris- 
 oners at the bar, and having well weighed the evidence, we find that 
 there are some suspicions, by the evidence, of what the woman is 
 charged with, but nothing considerable of value, to take away her life. 
 But in reference to the man, we find nothing considerable to charge 
 him with." The record proceeds : "The court thereupon gave this 
 sentence, that the man should be bound body and goods for his. wife' s 
 appearance at the next sessions, and so on from sessions to sessions, as 
 long as they stay within this government, in the meanwhile to be of 
 good behavior. So they were returned into the sheriff' s custody and 
 upon entering into a recognizance, according to the sentence of the 
 court, they were released.'" 
 
 This was twenty-three years before the witchcraft superstition be- 
 came deadly in Massachusetts ; it did not become epidemic in Salem 
 village until 1691-2, when a special court to try the witches was 
 created, whose sanguinary proceedings have left a lasting stain upon 
 
 1 The land in suit, still called Horse Neck, is in the 2 On August 21, 1668, Governor Nicolls gave the fol- 
 
 town of Greenwich, Conn., on north shore of Long lowing release to Kalph Hall and his wife, from their 
 
 Island Sound, opposite Huntington, on the south shore. recognizance : " These are to certify to all whom it 
 
 It is true that in December of the year previous to this may concern, that Ealph Hall and Mary, his wife, (at 
 
 lawsuit, the Connecticut Commissioners had "tricked" present living upon Miniford's Island,) are hereby 
 
 Governor Nicolls and his fellow commissioners into released and acquitted from any and all recognizances, 
 
 agreeing to Mamaroneck creek as the boundary, where- bonds of appearance or other obligations entered into 
 
 as it should have been (according to all New Yorkers) by them or either of them, for the peace of good be 
 
 several miles further east, so as to have included Horse havior, upon account of any accusation or indictment 
 
 Neck; but the matter was not yet finally determined, of witchcraft, brought into the Court of Assizes against 
 
 for "the absurd error was soon detected, and the bound- them in the year 1665 ; there having been no direct 
 
 ary was never ratified by the Duke of York, or by the proofs nor further prosecution of them since. Given 
 
 crown." Brodhead, ii., 56. under my hand," etc. 
 
fi4 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 GOVERNOR THOMAS DONGAN. 
 
 the puritan judiciary of Massachusetts. That an accusation of witch- 
 craft should have been made in New York in 1665 does not excite 
 our special wonder, for a belief in its possibility was universal at that 
 period, and being, as was supposed, founded on Scripture, was like- 
 ly to be 'fostered by the clergy. We 
 do not know the contents of the de- 
 positions on which Hall and his wife 
 were indicted and tried, but it is evi- 
 dent that the trial was conducted with 
 a decent regard for truth, and with a 
 judicial sobriety which contrasts for- 
 cibly with the bloodthirsty and law- 
 defying proceedings of the Massachu- 
 setts judiciary, in whom reason and 
 every humane feeling seem to have 
 been completely overwhelmed in that 
 brief period of nervous exaltation. 
 
 The last session of the Court of 
 Assize was held October 3, 1683, Gov- 
 ernor Dongan presiding. Though a 
 soldier and not a lawyer, he is said 
 by one of the members of the court 
 to have "behaved with discretion, 
 patience and moderation, showing in him that principle of honour, 
 not wilfully to injure any, and having a regard to the equity of all 
 his judgments." 
 
 The Early Lawyers. 
 
 Up to this time, and for some years thereafter, there was nothing 
 in the province recognizable as a bar, that is, no distinct class of pro- 
 fessional lawyers. The Assize Court records give the names of a num- 
 ber of " attorneys " as appearing for one or the other parties litigant 
 before it, such as John Sharpe, John Rider, Thomas Owen, Mr. Leve- 
 ridge, Mr. Bogardus and Nicholas Bayard. Other names appear in the 
 records of the Mayor's Court. It does not follow that any of these 
 were bred to the law, or made its practice an exclusive employment. 
 They were traders, factors for foreign merchants, land speculators, or, 
 it may be, mechanics, who, possessing a recognized talent for managing 
 affairs, or for penmanship, or an easy volubility, were likely to be 
 called on by their neighbors to act as conveyancers, attorneys, or 
 advocates, as the matter in hand might require. 
 
 There does not appear, however, to have been in New York such a 
 popular prejudice against lawyers, as a class, as was notoriously the 
 case in some of the other colonies, particularly in Massachusetts Bay. 
 Following the code of that colony, the Mcolls Code provided for the 
 punishment of common barrators — " vexing others with unjust, frequent 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 55 
 
 and endless lawsuits," as the statute reads, by fine and imprisonment ; 
 besides, "it shall be in the power of the court to reject his cause." It 
 was also provided that no justice of the peace, while in commission, 
 should be an attorney in any case, and ' ' no high Sheriff e under Sheriff e, 
 high Constable, petty Constable or Clarke of the Court shall be per- 
 mited to plead as Attorney in any Persons behalfe in the Court where 
 he Officiates." In the case, however, of a poor person, not able to plead 
 his own case, the court, on his request, might assign him either of these 
 officers to plead for him ; "but the person so pleading the poor man's 
 case is not to give judgment." These officers, also, where they were 
 agents or attorneys-in-fact of non-residents, or absentees, and therefore 
 "liable to be sued for their Employers," might "plead and prosecute 
 in any cause that shall any way Concern their said Employers." The 
 inhibition of justices of the peace, acting on behalf of a litigant, was, 
 no doubt, due to the fact that they were, ex-officio, entitled to sit in 
 the Court ' of Assizes ; and a justice might thus have a vote, on an 
 appeal, in a case in which he had been an advocate in the court below. 
 
 The New Constitutions of 1683 and 1691. 
 
 The year 1683 is memorable in the history of New York, as that 
 in which the first representative assembly convened and entered upon 
 the business of legislation. Colonel Thomas Dongan, who came out as 
 the Duke's deputy in August of that year, was authorized by his 
 instructions to issue writs to the proper officers in every part of his 
 government for the election of " a general assembly of all the free- 
 holders by the persons who they choose to represent them," not to 
 exceed eighteen, it being the Duke's declared "resolution" that such 
 laws propounded by it "as shall appear to me to be for the manifest 
 good of the country in general and not prejudicial to me," would 
 receive his assent and confirmation. The first session of this notable 
 assembly convened October 30, 1683 ; the second on October 21 of 
 the following year, at both of which laws were "propounded " of sing- 
 ular historical interest, but which, for lack of evidence of their having 
 ever been assented to by the Duke, have not been regarded as legal 
 enactments. No record of the names of the members of this first gen- 
 eral assembly, or of their deliberations, survives, except that we know 
 Mathias Nicolls, for many years the secretary of the province, was the 
 speaker, and John Spragg, the then secretary of the province and a 
 member of the council, was the clerk. We have also the titles of the 
 fourteen several bills passed. A second assembly, convened on Novem- 
 ber 3, 1685, was dissolved by proclamation January 30, 1686, by 
 reason of the Duke's having in the meantime ascended the throne as 
 James II. New York, no longer the private domain of a subject, now 
 became a province of the crown. Theretofore, in respect to its local 
 government, and the appointment of officers to administer it, New York 
 was a county palatine, like the counties of Chester, Durham and Lan- 
 
56 
 
 HISTORY Or THE BENCH AND BAB OF NEW YORK 
 
 caster, in England, in which from a remote period, down to 27 Henry VIII., 
 c. 24, the Earl of Chester, the Bishop of Durham and the Duke of Lan- 
 caster, respectively, had. Jura regalia as completely as the king in his 
 palace, and consequently administered justice within their respective 
 counties, by judges appointed by themselves and not by the crown. 
 But it was the king sitting in council, who was now the immediate 
 source of all power, and new commissions to the provincial officers 
 became necessary. 
 
 The new commission sent out declared the assembly abolished, 
 and invested the governor "with full power and authority by and 
 
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 DONBAN MAP, 1899. 
 
HISTORY OP THE BENCH AND BAR OP NEW YORK 
 
 57 
 
 with the advice and consent of the council, or the major part of them, 
 to make, constitute and ordain laws, statutes and ordinances," etc. 
 The extra legal character of the laws "propounded" by the Duke's 
 assembly of 1683 does not detract from the honor due to the men who 
 initiated them — to Governor Dongan particularly, whom all our his- 
 torians unite in praising as most truly a "New Yorker." The most 
 important of these measures were sub- 
 stantially re-enacted eight years after- 
 wards, by the first assembly elected 
 under William and Mary, in 1691, 
 which adopted a resolution intended 
 to annul all the acts of the Dongan as- 
 sembly, and the several ordinances of 
 the late government. This put an end 
 to the courts which had been organized 
 by Dongan, and which we must suppose 
 had been open during the preceding 
 period of revolutionary confusion. 
 The Dongan "Act to settle courts of 
 justice," besides abolishing the Court 
 of Assize, had provided a new system 
 of local administration by town and 
 county courts and boards. There was 
 to be a petty court for each town, a 
 county court or Common Pleas, for 
 each county, a Court of Oyer and Ter- 
 miner, and a Court of Chancery for the 
 whole province. The latter court was 
 to be composed of the governor and 
 council — which was only giving a 
 high-sounding, but hated name, to a 
 body which, from the first, had assumed 
 chancery jurisdiction. As judges of 
 the Oyer and Terminer, Dongan had appointed Mathias Nicolls and 
 John Palmer, an English lawyer who had come to New York from the 
 Barbadoes in 1674. Thomas Rudyard, a London lawyer, and formerly 
 lieutenant-governor of New Jersey, was commissioned the Duke's attor- 
 ney-general, and James Graham was made the first of the long line of 
 recorders of the city, taking his seat on the bench, " on the right hand 
 of the mayor," December 4, 1683. The governor retained for himself, 
 as all his predecessors had done, the functions of a surrogate or probate 
 judge for the whole province. The governor and council were also 
 decreed to constitute a Court of Exchequer, which was to meet on the 
 first Monday of each month. This first period of the juridical history 
 of New York, as an English province, was closed by the English revo- 
 lution of 1688, fitly enough characterized as the " happy revolution " 
 
 SEAL, DONGAN CHARTER. 
 
58 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 in England, and for Englishmen living there, but full of disappointment 
 to their majesties' subjects living in distant America. In New York, 
 especially, the hopes aroused by the seating of the new sovereigns on 
 the throne soon suffered a dismal defeat — the event being attended by 
 tragic circumstances, which originated social and political diversities 
 unexampled for their bitterness and long continuance. The king, a 
 born Netherlander, the citizen of a republic, and the life-long enemy of 
 Louis XIV., the impersonation of absolutism, might naturally be counted 
 on as a friend of civil and religious liberty at home and abroad. If his 
 Dutch kin in ancient New Netherland ever imagined that he would 
 turn a more kindly eye or listening ear to them now that he had be- 
 come their sovereign king, the illusion was but transitory. He had no 
 heart, it is said, for anything but continental politics, and incidentally 
 to preserve from further curtailment, in home affairs, as much of the 
 royal prerogative as the wreck of the revolution had left intact. 
 Colonial affairs seem never to have attracted his attention or excited 
 his interest further than to resist the suggestion made to him, to sur- 
 render some portion of his prerogative powers of governing the colonies 
 himself in council. It was the Englishmen at home who gained new 
 guarantees of constitutional rights, enlarged freedom from arbitrary 
 power and security against unrestrained prerogative. As for English- 
 men in the colonies, their relation to the crown remained what it 
 always had been, which was, according to William's first chief -justice 
 of the King's Bench, Holt, that "their law is what the King pleases "; 
 for, according to Granville, — a member of his privy council, — "the 
 governor's instructions are the law of the land, for the King is the 
 Legislator of the Colonies." Under the instructions — copied nearly 
 verbatim from the Duke of York' s instructions to Dongan — given to 
 Colonel Henry Slough ter, William' s first governor, who arrived March 19, 
 1691, writs were issued for a general assembly of freeholders, which 
 accordingly convened on April 9. The law-making power was vested 
 not in this body, however, but in the governor, acting with the consent 
 of the council and a majority of the assembly, subject of course to 
 the approval of the sovereign. To the end of the colonial period, the 
 enacting clause of all bills was : " Be it enacted by his Excellency the 
 Governor, by and with the consent of the Council and Assembly, and 
 by the authority of the same." Some very notable legislation was 
 effected, however, by this assembly. It re-enacted, with slight varia- 
 tions of language, some of laws noticed above as having been passed by 
 Dongan' s discredited assembly of 1683, one of which, entitled "An act 
 for declaring what are the rights and privileges of their Magesties' , 
 subjects inhabiting within this province of New York," does not differ 
 greatly from the "Charter of Libertyes and privileges" of Dongan' s 
 assembly; but it met the untoward fate of its original, and was vetoed 
 by the king, six years after its passage. But perhaps its most impor- 
 tant work was providing a system of county government by officers 
 
HISTORY OF THE BENCH AND. BAR OF NEW YORK 59 
 
 (supervisors) chosen by the electors of the several towns, and a county 
 treasurer, elected by the voters of the county at large. 
 
 Though this scheme of county government was abolished in 1701, 
 it was re-established in June, 1703, and has continued ever since with- 
 out material modification. Counties in New England and in the 
 southern states have never been much more than mere geographical 
 expressions, without any corporate existence or system of local admin- 
 istration. The New York supervisor system of local government, thus 
 created, " was destined to have a prof ound influence on the subsequent 
 development of local administration in the United States." 1 In a 
 somewhat modified form, it was very soon adopted by Pennsylvania. 
 "To New York first, and next to Pennsylvania," says a competent 
 authority, "belongs the honor of predetermining the character of local 
 • government in the west. But if New York was the first to return to 
 the ancient practice of township representation in the county court, 
 it was in Pennsylvania that the capabilities of the independent county 
 were first tested. New York is the parent of the supervisor system." 2 
 Another important act passed by the first assembly of 1691, was "for 
 Establishing Courts of Judicature." Besides various local tribunals 
 then existing, it erected a Supreme Court, to sit in New York, consist- 
 ing of a chief justice, a second justice and three associate justices, to be 
 commissioned by the governor, on a royal mandamus from Westminster. 
 Appended to a list of all the officers in the civil service of the pro- 
 vince on April 20, 1693, made by Matthew Clarkson, the secretary, is 
 ' ' An Account of all Establishmtes of Jurisdiction within the Province, ' ' 
 as follows : 
 
 "Single Justice. Every Justice of the Peace hath power to deter- 
 min any suite or controversy to the value of f ourty shillings. 
 
 "Quarter Sessions. The Justices of the Peace in quarter sessions 
 have all such powers and authorities as are granted in a Commission of 
 ye Peace in England. 
 
 "County Court. The County Court or common Pleas both cogniz- 
 ance of Civil accons to any value excepting what concerns title of land, 
 and noe accon can be removed from this Court if the damage be under 
 twenty pounds. 
 
 "Mayor & Alderem. The Court of Mayor and Aldermen hath the 
 same power with the County Courts. 
 
 ' ' Supreme Court. The Supreme Court hath the powers of Kings 
 Bench, Common Pleas & Exchequer in England and noe accon can 
 be removed from this Court under £100. 
 
 ' '■Chancery. The Grovernour and Councill are a Court of Chancery, 
 and have the powers of the Chancery in England, from whose Sentence 
 or decree nothing can be removed under £300. 
 
 "Prerogative Court. The Governour discharges the place of Ordin- 
 
 1 Professor Frank J. Goodnow, "ComparativeAdmin- 2 Professor Howard. "Local Constitutional History of 
 
 Istrative Law," (N. T., 1893), i, 168. the U. S.," i, 387. 
 
60 HISTORY OF THE BENCH AND BAB OE NEW YORK 
 
 ary in granting administracons and proveing Wills & The Secretary is 
 Register. The Governr. is about to appoint Delegates in the remoter 
 parts of the government, with Supervison for looking after intestates 
 estates and orphans. 
 
 " Court Marshall. The Governr. hath established a Court Martiall 
 att Albany whereof Major Richd. Ingoldesby is President and Robert 
 Livingston Judge Advocate, who with the other commissioned Captains 
 att Albany have power to exercise Martiall Law being a frontier gar- 
 rison and in actuall warr. 
 
 " Admiralty. Their Magesties reserve the appointment of a Judge, 
 Register, and Marshall." 
 
 The Supreme Court. 
 
 The declaration of our Code of Civil Procedure, that the Supreme 
 Court of the State of New York possesses (subject to certain constitu- 
 tional limitations) "all the jurisdiction which was possessed and exer- 
 cised by the Supreme Court of the Colony of New York, at any time," 
 refers to the Supreme Court established by the act of 1 691. The court 
 was declared by its original constitution to have cognizance of all 
 actions civil, criminal, and mixed, as fully and amply as the King's 
 Bench, the Common Pleas, or the Exchequer, in England. Its civil 
 jurisdiction was limited to actions for the recovery of sums exceeding 
 £20, and suits for that sum or over in inferior courts were removable 
 to it. Appeals from civil judgments of the Supreme Court lay to the 
 governor and council, where the amount exceeded £100 in value, until 
 1753, when the amount was increased to £300. Where the amoimt ex- 
 ceeded £500, an appeal was permitted to the king in council, pro- 
 vided it was taken within fourteen days after entry of judgment, and 
 the appellant secured payment of final judgment and costs. 
 
 < The court was to be composed of a chief -justice and four associate 
 or puisne judges, the chief-justice and two judges making a quorum. 
 In 1701, however, two of the associate judges were dispensed with. 
 Fifty-seven years afterward, in November, 1758, to accomplish the 
 increasing business of the court, another judge was added, making 
 four in all, including the chief-justice, and this constitution of the 
 court continued down to the Revolution. Until 1769 the associate 
 judges ranked according to their designation in their respective com- 
 missions, as second, third, or fourth judge, but after that date they 
 ranked according to the dates of their commissions. 
 
 . At first only the chief -justice and the "second judge" received 
 salaries — the one £130 and the other £100 per annum. In 1698 the 
 chief -justice's salary was reduced to £100 ; four years afterward , in 
 1702, it was raised to £300, with a fee of ten shillings on the first 
 motion in every cause, the second judge being at the same time 
 awarded £150, and the three associates £50 each. In 1765 the associate 
 judges' allowance was raised, for riding circuits, to £200. After 1774 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 61 
 
 the chief-justice was to receive £500 sterling from the crown, and in 
 addition £300, New York currency, from the provincial treasury, the 
 other judges' salaries remaining at £200, New York currency, equiv- 
 alent to £100 sterling, besides their fees. 
 
 The judges of the new court were announced at once on the 
 passage of the act, and very soon met and organized for business. 
 Joseph Dudley was named chief-justice, Thomas Johnson second 
 judge, with William Smith, Stephen Cortlandt (otherwise called 
 Stephanus Van Cortlandt), and William Pinhorne, puisne judges. Of 
 these only Van Cortlandt was a native of the province, and none of 
 them was regularly bred to the law, though, in 1691, this was no great 
 matter in the disposition of the great bulk of litigation as between 
 man and man. The chief-justice was a native of Massachusetts, from 
 which he had been ex- 
 pelled in disgrace, and 
 had come here from 
 England on a promise 
 of the chief-justiceship 
 when the court should 
 be made up. He re- 
 mained in office, how- 
 ever, for eighteen 
 months only (May 15, 
 1691, until November 11, 
 1692), when he was suc- 
 ceeded by his associate, William Smith, a native of England, but a resi- 
 dent of the province since 1686, a notable man, and a leader of the 
 presbyterian or " republican " party of the day and long after. 1 After 
 a service of eight years, he was displaced (October 30, 1700) for about a 
 month, Van Cortlandt taking his seat for that period (October 30 to 
 November 25, 1700). Again commissioned, he was compelled to give 
 way two months afterward to Abraham De Peyster, than a puisne 
 judge, who was appointed temporarily until the new chief-justice, ap- 
 pointed directly by the crown, should arrive from England — William 
 Attwood. But within less than a year, this, the first regularly trained 
 lawyer who occupied the office, fled the province in disguise at night to 
 escape arrest by the new governor just arrived. William Smith was 
 restored to the chief-justiceship, which he held until another English- 
 bred lawyer could be sent over — John Bridges, doctor of laws, who was 
 commissioned April 5, 1703. Doctor Bridges having died within less 
 than a year, Roger Mompesson, a native of England, a barrister, at 
 one time recorder of Southampton, was commissioned (July 15, 1704) 
 chief- justice of New York and New Jersey, in which latter province, 
 
 ONE OF A 1'AIll PRESENTED BY BELLOMONT TO COLONEL ABRAHAM 
 DE PEYSTER. 
 
 1 |The first minutes of the Supreme Court of which 
 the writer has any knowledge are those of the term 
 commencing; April 4, 1693, at which Chief-Justice Smith 
 presided. They are written on the reverse pages' of the 
 
 last record book of the old Court of Assize, bound in 
 parchment, which is in the library of the New York 
 Historical Society. 
 
62 
 
 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 or in Philadelphia, he resided at the time. During his tenure he 
 claimed to have made the practice of the courts of the province " more 
 conformable to the practice of Westminster Hall than any other of 
 her Magesty's plantations in America." On his death, while in office, 
 he was succeeded by Lewis Morris (March 13, 1715), a native of -New 
 York, but long a resident of New Jersey, where he had been a con- 
 spicuous figure in the popular opposition to Governor Cornbury. But 
 his pronounced presbyterian or republican partisanship here, and 
 especially his dissenting opinion in the great case of Governor Cosby 
 against Rip Yan Dam, which he took pains to print with an ill- 
 tempered philippic against the governor, led to his removal in 1733, to 
 give place to a typical high-prerogative, anti-republican native of the 
 province, James De Lancey, than second judge of the court ; who con- 
 tinued in the chief- justiceship until his death, July 30, 1760. His suc- 
 cessor, Benjamin Pratt, commissioned November 11, 1761, was a native 
 and resident of Massachusetts, eminent for learning in the annals of 
 that colony, but treated, at the outset of his brief career here, with 
 great indignity both by his associate judges and by the leaders of the 
 bar, for no reason apparently but that he was a non-resident, and had 
 accepted his commission "during pleasure" instead of for life con- 
 ditioned on good behavior. He died in office. His successor, the 
 eleventh and last chief -justice, Daniel Horsmanden, a native of Kent, 
 England, had been an associate judge of the court since January 24, 
 1736 ; he was advanced to the chief -justiceship March 16, 1763, when 
 he was over seventy years of age, and continued in office until his 
 death, after the Declaration of Independence, on September 20, 1778. 
 William Smith, the younger, son of the chief-justice of that name 
 above mentioned, who, in his youth, had published his "History of 
 New York," and was an ardent whig, received the appointment of chief- 
 justice during the war, when he became a loyalist, but it is doubtful if 
 he ever held court ; and having left the province with the British 
 troops at the close of the war, he is not generally accounted one of our 
 chief-justices. 1 
 
 1 Personal notices of these men, highly distinguished 
 in their day, are reserved for future pages of this work, 
 but it may be found interesting to give here a list of the 
 judges of the court down to its dissolution, with the 
 dates of their several commissions. 
 
 ASSOCIATE OR PUISNE JUDGES. 
 
 CHIEF-JUSTICES OF THE SUPREME COURT. 
 
 Joseph Dudley, 
 William Smith, 
 Stephen Van Cortlandt, 
 William Smith, 
 Abraham De Pcyster, 
 William Attwood, 
 William Smith, 
 John Bridges, 
 Roger Mompesson, 
 Lewis Morris, 
 James De Lancey, 
 Benjamin Pratt, 
 Daniel Horsmanden, 
 
 commissioned 
 
 May 15, 
 
 November 11, 
 October 30, 
 November 25, 
 January 21, 
 August 5, 
 June 9, 
 
 April 5, 
 
 July 15, 
 
 March 13, 
 August 21, 
 November 11, 
 March 16, 
 
 1691 
 1692 
 1700 
 1700 
 1701 
 1701 
 1702 
 1703 
 1704 
 171 •» 
 1733 
 1761 
 1763 
 
 Thomas Johnson 
 William Smith, 
 Stephen Van Cortlandt, 
 William Pinhorne, 
 William Pinhorne, 
 Chidley Brooke, 
 John Lawrence, 
 John Guest, 
 Abraham De Peyster, 
 Robert Walters, 
 John Bridges, 
 Robert Milward, 
 Thomas Wenham, 
 James De Lancey, 
 Frederick Philipse, 
 Frederick Philipse, 
 Daniel Horsmanden, 
 John Chambers, 
 
 commissioned 
 
 May 
 
 May 
 
 May 
 
 May 
 
 April 
 
 April 
 
 April 
 
 June 
 
 October 
 
 August 
 
 June 
 
 April 
 
 April 
 
 June 
 
 June 
 
 August 
 
 January 
 
 July 
 
 15, 1691 
 
 15, 1691 
 
 15, 1691 
 
 15, 1691 
 
 3, 1693 
 
 3, 1693 
 
 3, 1693 
 
 1698 
 
 4, 1693 
 
 5, 1701 
 
 14, 1702 
 
 5, 1703 
 
 5, 1703 
 
 24, 1731 
 
 24, 1731 
 
 21, 17.13 
 
 24, 1730 
 
 30, 1751 
 
HISTOKY OF THE BENCH AND BAE OF NEW YORK 
 
 63 
 
 To write the history of the Supreme Court of New York for the 
 eighty-five years preceding its dissolution, on the Declaration of Inde- 
 pendence, is to write the political, and, in large measure, the social, 
 history of the period, which is quite beyond the purpose here. The 
 reluctance with which William III. consented to the erection of this 
 high court by statute, rather than by a mere executive ordinance revo- 
 cable at will, is made apparent by the proviso of the act creating it, 
 which limited the court's existence to a period of two years. As noth- 
 ing occurred, however, in the conduct of the court, during the first two 
 years of its existence, inimical to the king's ideas of governing the 
 province by royal prerogative, the limitation was extended, from time 
 to time, by subsequent legislation, until 1698. The court was there- 
 after continued, not by legislation, but by the governor's proclamation , 
 of January 19, 1699, and then, finally, by the order of the governor in 
 council, under date of May 15 of the same year. This assumption, 
 on the part of the crown, of a right to erect a court of justice, or to 
 revive a defunct court, gave excuse, on at least one notable occasion, 
 for a great popular outcry against the court, on a plea to the court's 
 jurisdiction being raised in a pending case; the contention on the part 
 of counsel being, in effect, that the court had 
 had no legal existence subsequent to the expira- 
 tion of the limitation fixed by act of assembly; 
 that the fundamental principles of the British 
 constitution were as controlling in New York 
 as in England, and that as the king could not 
 constitutionally, of his own will, erect and main- 
 tain a court of justice at home, he could not 
 do so here. The king's claim of right to rule 
 by prerogative in. the colonies, any further than in England, was 
 contested in New York mainly by the lawyers, in pending litigation 
 at the bar of the Supreme Court, and this, with a frequency and per- 
 sistency unknown, because uncalled for, in neighboring colonies which 
 lived under the guarantees of written charters, by which the right of 
 government by prerogative was to a greater or less degree surrendered 
 by the crown to the people. These forensic discussions at the bar, as 
 they occurred from time to time, filled the court-house with eager, and 
 sometimes applauding and even riotous audiences; they were subse- 
 quently rehearsed in every tavern tap-room, and thus was begot that 
 familiarity with, and stubborn devotion to, the underlying doctrines of 
 institutional liberty, under English law, which became characteristic of 
 the province, notwithstanding the diversity of nationalities which, from 
 
 Daniel Horsmanden, commissioned July 28, 1753 
 
 David Jones, " November 21, 1758 
 
 Daniel Horsmanden, " March 26, 1762 
 
 David Jones, " March 31, 1762 
 
 David Jones, " March 16, 1763 
 
 Wm. Smith, the elder, commissioned March 16, 1763 
 Robert E. .Livingston, " March 16, 1703 
 
 George D. Ludlow, " December 14, 1760 
 
 Thomas Jones, " September 29, 1773 
 
 Whitehead Hicks, " February 14, 17(6 
 
64 
 
 HISTORY OP THE BENCH AND BAR Of NEW YORK 
 
 first to last, made up its population. The great landlords — so called 
 lords of manors — and the rich city merchants, always in control of the 
 assembly, were as apt as not, according to their interests, to be leaders 
 of the opposition to the government, in its endeavors to enforce, in the 
 courts, the navigation acts, suppress smuggling, and collect the crown's 
 quit-rents. As between the assembly which granted their salaries, and 
 the governor, who could at any time recall and revoke their commis- 
 sions, the judges found themselves, more than once, grievously embar- 
 rassed. Their annual stipends and their tenure of office were equally 
 uncertain. All of them were, almost of necessity, what would now be 
 called politicians; that is, participants in the endless disputes between 
 the assembly and the executive, which make our colonial history such 
 tiresome reading. The chief -justice was ecc-officio president of the coun- 
 cil, and many of the puisne judges were, while in office, its members. 
 
 They were therefore legislators 
 as well as judges, and not infre- 
 quently blocked the legislative 
 efforts of the assembly. Chief- 
 Justice De Lancey was commis- 
 sioned lieutenant-governor by 
 George II. in October, 1747, 
 and a vacancy in the governor- 
 ship recurring in July, 1757, he 
 became and continued, until his 
 death three years later, chief ex- 
 ecutive of the province, besides 
 being its chief -justice. It was 
 repeatedly charged against the 
 assembly, controlled, as it generally was, by those who resented any- 
 thing like a strict enforcement of the navigation acts, and an honest 
 collection of the crown's quit-rents, that it attempted to control the 
 appointment of judges, or to coerce their judicial decisions, by with- 
 holding their salaries. 
 
 Writing to the Lords of Trade (January 11, 1761), Lieutenant-Gov- 
 ernor Colden attributed the obstinacy of the assembly in refusing 
 salaries to the judges to " a formed design of undue influence," and a 
 determination " to have no chief-justice unless he be a gentleman of 
 estate in this province " — a position, he says, which " takes with the 
 people," but in his opinion, both the king and the inhabitants may 
 more safely trust the administration of justice with a stranger, who 
 has no private connections, than with an inhabitant. " Sure I am that 
 men of greater abilities may be found out of the province than in it." 
 To yield to the assembly in this matter would, he thinks, affect dis- 
 astrously the whole administration, for while few people had any 
 dependence on the governor, " a chief- justice has an influence on every 
 man in it; because no man knows when he may have a dispute at law 
 
 FIRST NEW YORK POORHOU8E, 1734. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 65 
 
 with his neighbour." " If then," he continues, " a chief -justice for 
 life, with large family connections, form a party, to serve ambitious 
 or interested views, the governor must either become the tool of this 
 party or live in perpetual contention. This is not a mere hypothesis; we 
 had not long since a glaring instance of it." To prevent these evils, 
 he urges that the chief-justice's salary be allowed by the crown out of 
 the quit-rents of the province, and thus save the governor from the 
 dilemma of appointing according to the dictation of interested and 
 ambitious men, or of leaving the province without a court of justice. 1 
 The " glaring instance " referred to was the conduct of the assembly 
 and the bar on the arrival from Massachusetts of the new chief -justice, 
 Benjamin Pratt, who had been commissioned " during pleasure" 
 instead of good behavior, as his predecessor De Lancey had been. 
 As matter of fact, De Lancey's original commission (September 14, 
 1744), like those of all his predecessors, ran during pleasure; it was 
 not until eleven years afterward that the governor, by way of compli- 
 ment or reward, presented him with a new commission, running during 
 good behavior — that is, for life.' Nevertheless, the complacency of the 
 new chief-justice in accepting his commission on a condition " con- 
 trary to New York precedent," was seized upon by the so-called repub- 
 lican faction, then in control of the assembly, as an additional weapon 
 in its pending controversy with the party in power— the party " sup- 
 porting the established constitution"; though in truth the bestowal 
 of the second office in the province upon a stranger was far from being 
 agreeable to either party. The three other judges of the court, Daniel 
 Horsmanden, John Chambers, and David Jones, all of whose commis- 
 sions were in abeyance by reason of the death of King George II., not 
 only had reason to be disappointed in not being preferred for the first 
 place, but were indignant that the new chief-justice should have 
 accepted his commission on other terms than for good behavior. Judge 
 Chambers was so affronted by Pratt's appointment that he resigned 
 his commission outright. Judge Horsmanden and Jones refused to 
 accept a renewal of their commissions on the terms offered. The situ- 
 ation was particularly embarrassing for the chief -justice ; for the Jan- 
 uary term of the court occurring in the month of his taking the oath 
 of office, he was obliged to sit alone for the whole term. According to 
 a contemporary, he was " unacquainted with the practice of the court 
 and the laws of the colony, and found himself so perplexed and bewil- 
 dered that as soon as the term ended he applied to Mr. Colden, the 
 lieutenant-governor, and begged that the bench might be filled up." 
 
 The assembly had passed resolutions severely reflecting upon the 
 chief-justice for accepting his commission "during pleasure," and 
 inveighing against Colden for refusing to grant commissions " during 
 
 1 N Y. Col. Docs., vii., 463. sioned formerly during pleasure, but of late, "quamdiu 
 
 » Smith's statement, made in his History (published bene se gesserint," is not verifiable. 
 1757), that the second and third judges were commis- 
 
66 
 
 HISTORY OF THE BENCH AND BAE OF NEW YORK 
 
 good behavior "—both, of them being declared enemies to the colony, 
 to the government and the constitution, and threatening to grant no 
 salaries either to Colden or to the judges unless judicial commissions 
 were to run during good behavior. To this Colden had responded, 
 that he was willing to comply with the assembly's wishes in that 
 regard, and thus make the judges independent of the crown, provided 
 the assembly would settle upon them fixed salaries determinable only 
 on the expiration of their respective commissions, thus making them 
 as independent of the assembly as they would be of the crown. This, 
 however, they were not willing to do. But after the fury of tho con- 
 troversy had spent itself, the lieutenant-governor sent for the other 
 judges, as requested by the chief -justice; they agreed to consult their 
 friends, and in a short time consented to accept their commissions on 
 the terms offered — that is, during pleasure. 
 
 The contention of the whig lawyers that, by English law, judges 
 were not to be commissioned for years or a term, or during pleasure, 
 
 was not now heard for the first 
 time in the province. 1 It had 
 been made, by way of a plea 
 to the jurisdiction of the Su- 
 preme Court, twenty five years 
 before, in the famous prosecu- 
 tion for criminal libel, at the 
 instance of the governor, of 
 John Peter Zenger, whose trial 
 before Chief-Justice De Lancey 
 and a jury, in January, 1735, 
 gave rise to the most extravagant expressions of public feeling during its 
 progress, and of popular demonstrations of joy on the final triumph of 
 the defence. It appears that Zenger, the printer of the New York 
 Weeldy Journal, the second newspaper published in the province, had 
 published at the supposed instance of James Alexander, William Smith, 
 and other whig lawyers of the time, a series of papers bitterly if not 
 libelously attacking the government, and its supporters in the assem- 
 bly. "Ballads" in ridicule of some members of the assembly and 
 council were also issued. Eegarded as derogatory to the dignity of 
 his Majesty's government and tending to raise sedition and' tumult, 
 the council ordered certain numbers of the papers in which the obnox- 
 ious articles appeared, and also the ballads, "to be burnt by the com- 
 mon hangman." The assembly paid no attention to the council's 
 request that it join in asking the governor to offer a reward for the 
 authors of these seditious libels. On an order of the council, a warrant 
 
 THE BATTERY IN 1746. 
 
 1 As matter of fact, judges in England had always 
 been commissioned during the pleasure of the crown, 
 until the passage, in 1702, of the " Act of Settlement " 
 (IS and 13 VV. III. c. 2), which provided that, after the 
 termination of William's reign, the judges' commissions 
 
 should be during good behavior, and that they should 
 be removable only on addresses of both Houses of Par- 
 liament. The permanence of their tenure, notwith- 
 standing a demise of the crown, was further secured by 
 1 Geo. TIL, c. 23. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 THE 
 
 New -York Weekly JOURNAL 
 
 Containing the frefhtjl Advices, Foreign, and Domepck. 
 MV&DAT Novembers, 1733. 
 
 67 
 
 1 
 
 Mt.Zen.ger. , fl^r Sovereign, the fble fupream Mk- 
 
 , e ,, . . jiftratei for there being no Law fax 
 
 Ncert the following in your next, thofe Monarchies, but the Will of tha 
 and you'll oblige your Friend, Prince, it makes it nccertary for his 
 
 CATO. Miniftcrs to confult his Plcafure, be- 
 fore any Thing can be undsStSU'en : 
 Mira temporum felicitas tiitfeutiri que He is therefore properly chargeable 
 velis, & qua feutrasdhere licit. with the Grievances of his Subjects, 
 
 Tacit, and what the Minifter there ads baicg 
 in Obedience to the Prince, he ought 
 
 THE Liberty of the Prefs not to incur the Hatred of the People ^ 
 is a Subject of the great- for it would be hard to impute thar to 
 ejt Importance, and in him for a Crime, jwhich. is theFruiir.of 
 ■which every Individual his Allegiance, and for refuting which 
 is as much concern'd as he might incur the Penalties of Trea- 
 lic is in any other Part of Liberty: fon. Befides, in an abfolute Monar- 
 Therefore it will not be improper to chy, theWill of the Prince being the 
 communicate to the Publick the Senti- Law.a Liberty of thePrefs to complain 
 ments of a Lite excellent Writer upon of Grievances would be complaining 
 this Poin f . fucli is the Elegance and againfl the Law, and the Conftitution, 
 Pcrfpicuity of his Writings, fuch the to which they have fubmitted, or have 
 inimitable Force of his Ri-afoning, that been obliged to fubmit^ and therefore 
 it will be difficult to fay any Thing in one Senfe, may be fai'd to delerve 
 r.ew that he has not faid," or not to Punifhment, So that under an abfo 
 fay that much WOrfe which he has lute Monarchy, I fay, fuch a Liberty 
 kid, is inconfiftent with the Conftitution, 
 
 There are two Sorts of Monarchies, having no proper Subject iti Politics, 
 an abfolute and a limited one. In the on which it might be exercis'd, and if 
 firfl theLiberty of thePrefs can never exercis'd would incur a cerainPcnaky 
 be maintained, it is inconfiftent with But in a limited Monarchy, ai F.ng 
 « • for what abfolute Monarch would land is, our Laws are known, fixed 
 fuffer any Subject to animadvert and eftablifhed. They are the ftreigh 
 on his Actions when it is in his Pow- Rule and fureGuide to direft theKtng, 
 er to declare the Crime, and to nomi- the Mimfters, and other his Subjects is 
 natethc Punifhment? This would And therefore an Offence againft the 
 make it very dangerous to exercife fuch Laws is fuch anOftcnce agamlt the 
 a I iberty Befides the Object againft Conftitution as ought to receive a pro 
 which thole Pens nraft be directed, is per adequate Pumfhrnent; the ^^- 
 
68 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 for Zenger's arrest for seditious libel was issued, on which he was 
 arrested. Brought before Chief- Justice De Lancey, on habeas corpus, 
 his counsel, James Alexander and William Smith the elder, both lead- 
 ers of the politico-presbyterian party, then in opposition to the govern- 
 ment, objected to the legality of the warrant on which the prisoner had 
 been committed, and asked for a discharge, or admission to bail. But 
 the bail exacted was so excessive, in view of the affidavit of Zenger 
 that he was not worth forty pounds, exclusive of his wearing apparel 
 and tools of his trade, that he was remanded, though had he or his 
 backers not been so willing to make him a martyr, bail in plenty 
 would no doubt have been furnished by his political sympathizers. 
 The grand jury, however, refused to find an indictment, whereupon 
 Attorney-General Bradley on January 28, 1735, exhibited an informa- 
 tion ex-officio against the prisoner, for " false, scandalous, malicious, 
 and seditious libels," on which, in the following July, Zenger was 
 brought up for trial. But his counsel, Alexander and Smith, had in 
 the preceding April filed an exception to the information on the 
 grounds (1) that the Supreme Court in which it had been filed was 
 without qualified judges, their commissions running during pleasure 
 instead of during good behavior ; and (2) that their commissions, such 
 as they were, had been granted by the governor (Cosby) on his own 
 authority, without the advice and consent of the council, and were 
 therefore void. This attack upon the very existence of the court was 
 resented, with spirit, by the chief-justice, who addressing Smith, said: 
 " You have brought it to that point, sir, that either we must go from 
 the bench or you from the bar." Thereupon, without further argu- 
 ment, the names of both Smith and Alexander were ordered stricken 
 from the roll, as for a gross contempt of court. Neither of them was 
 permitted to resume practice until the next year when, upon the death 
 of Governor Cosby, both were readmitted to the bar, and Alexander 
 was recalled to his seat in the council. 
 
 The question of the judges' tenure of office durante bene placito, 
 instead of quamdiu bene se gesserint, seems to have been accepted 
 as settled, after the troubles attending Chief-Justice Pratts' induction 
 into office in 1761. His successor, second-judge Horsmanden, the last 
 of our colonial chief -justices, accepted a commission during pleasure, 
 and died in office. 
 
 But a more serious question which had vexed the court, and given 
 rise to the wildest expressions of popular feeling against it, under the 
 lead of the whig lawyers, was. whether the Supreme Court's constitu- 
 tion permitted it to exercise the equity powers of the English Court 
 of Exchequer. The opposition to the judges sitting as barons of the 
 exchequer, at chambers, to hear matters in equity, was based upon 
 the old contention that no court could legally be erected here except 
 by statute ; that exchequer-chamber jurisdiction was not conferred 
 by the act of 1691, or by any subsequent legislation, but was assumed 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 69 
 
 to be conferred by mere executive ordinance ; and government by 
 ordinance rather than by law was subversive of the cherished rights 
 and privileges of the people, as English subjects. It -was the same 
 contention which had from time to time aroused violent opposition to 
 the jurisdiction claimed by the governor and council, sitting as the 
 Court of Chancery, under the crown's instructions to his governors. 
 A better understanding of the controversies in the Supreme Court over 
 the question of its equity jurisdiction, and of the prodigious excite- 
 ment occasioned throughout the province by the trial of Cosby against 
 "Van Dam in 1733, will be had if a brief account of the Court of Chan- 
 cery is first given. 
 
 Court of Chanceri . 
 
 The distinction between what might be fitly done in a court of 
 law and in a court of equity — so familiar in the administration of jus- 
 tice in England— was unknown wherever, as in New Netherland, the 
 civil law prevailed. The need of having a separate tribunal to supply 
 the defects of the common law, and to furnish remedies in classes of 
 cases not provided by it, only began to be felt 
 in New York when increase of wealth, through 
 a growing commerce and speculation in land 
 grants, with their attendant attempts to found 
 families, which soon followed the English occupa- 
 tion, brought the art of conveyancing into greater 
 use, and gave rise to controversies concerning 
 trusts, their creation and execution, and other like 
 subjects of equity jurisprudence which the exist- 
 ing courts of law were powerless to entertain. In a city so purely 
 commercial as New York, controversies were likely to arise, involving 
 the dissolution and winding up of partnerships, accountings between 
 principal and agents, trustees and their beneficiaries, guardians and 
 wards, which, if complicated, the machinery of the law courts was not 
 suited to unravel, or was thought to be so. 
 
 Under the proprietary government of the Duke of York, his gov- 
 ernors had assumed to act as chancellors, under the authority of the 
 Duke's patent and his own instructions to them, but in 1683, when 
 James yielded to the popular demand for a local legislature, a Court 
 of Chancery was included in the judiciary scheme which was then 
 adopted. It was to consist, as theretofore, of the governor and his 
 council ; the only effect of the act being to give legislative sanction to 
 a jurisdiction which had hitherto been exercised under the communi- 
 cated prerogative of the crown. 
 
 This sanction was saved from the general wreck of Dongan's legis- 
 lation, by an act of the first assembly called under authority of the 
 new king, passed May 6, 1691, which conferred jurisdiction in equity 
 upon the governor in council, for a limited term of seven years only. 
 
70 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 From and after the expiration of this term, until the end of the colo- 
 nial period, the only authority for the exercise of equity jurisdiction 
 by the successive governors was by ordinance, or executive order, first, 
 in August, 1701, and, finally, in November, 1704, after a suspension 
 since June 13, 1703. From first to last, after 1698, it appears to have 
 been the policy of the crown to refuse to give up its prerogative claim 
 to equitable jurisdiction, or to submit it to such limitations as a pro- 
 vincial legislature might see fit to impose ; hence, on every fit occa- 
 sion, or whenever the political exigency of the time called for some 
 subject of complaint calculated to arouse the commonalty, this alleged 
 illegal assumption of chancery jurisdiction was seized upon by the 
 government opposition. These repeated outbreaks of wrath by the 
 so-called popular party were either the occasion, or the result, so far 
 as we can judge, of some particular case of a disappointed litigant, 
 
 VIEW OP NEW YORK, 1732. 
 
 and while we may not be able to believe that these controversies, 
 spread over a series of years, are not always free from a suspicion of 
 interested motives, it is impossible not to see that, at bottom, the fitful 
 contention against prerogative power in New York, for many years 
 before the Declaration of Independence, prepared the people for a ready 
 acceptance of that great indictment. The general ground of oppo- 
 sition to the court was that, being founded on mere prerogative, per- 
 sonal liberties and property were subject, not to law, but to the con- 
 science of the royal representative for the time being ; they were made 
 precarious by the extortionate fees of officers in no way under the con- 
 trol of the provincial assembly, and by the excessive bail exacted by 
 them in cases of ne exeat writs, and the delays of justice countenanced 
 by them, through "the manifold contrivances of lawyers, by their 
 voluminous Bills of Complaints, Answers, and dilatory pleas." 
 
 An early expression of hostility to the governor's exercise of chan- 
 cery jurisdiction by royal prerogative was the resolutions adopted by 
 
HISTORY OP THE BENCH AND BAH OF NEW YORK 71 
 
 the assembly, on the eve of its being prorogued, on the 25th of 
 November, 1725. These would furnish better evidence of the sincer- 
 ity of popular hostility to the court, if we did not know the circum- 
 stances under which they were put through the house in the last hours 
 of the session. It appears that Frederick Philipse, a great landholder, 
 and a merchant, had been sued in the Supreme Court by the repre- 
 sentative of his former partner, Codington, then deceased, on a bond 
 for £1,500, alleged to have been given by him to his partner, on the 
 firm's dissolution, as the latter's share. Philipse interposed, by way 
 of answer, some sort of equitable defence, perhaps a mistake in the 
 accounting had by the partners themselves, with the object, it was 
 asserted, of " removing the suit into chancery." 1 His plea being over- 
 ruled, and judgment given against him on the bond, in the Supreme 
 Court, he filed a bill in chancery to have the bond canceled, the account 
 of the partnership opened and restated. The cause was carefully tried 
 before Governor Burnet, but the plaintiff's evidence was not sufficient 
 to convince the court that " a man of Mr. Philipse's sense and expe- 
 rience in business would give his bond for £1,500 to a man who owed 
 him a greater sum at the same time," and his bill was dismissed. 
 Philipse was at that time speaker of the assembly, and in resentment 
 for his treatment by the Court of Chancery, he is said to have induced 
 the assembly's committee on grievances to report to the assembly cer- 
 tain resolutions already drawn up by his own friends, which he, as 
 speaker, put to an immediate vote and caused to be carried by the 
 house. The assembly's minutes, under date of November 26, 1727, are 
 worth giving in full, as follows : 
 
 Die Sabbat: 25th November 1727. 
 
 Coll. Hicks from the Committee of Grei varices reported that, as well by the 
 Complaints of several people as by the General Cry of his Majesty's Subjects In- 
 habiting this Colony, they find that the. Court of Chancery as Lately assumed to 
 be Sett up Here renders the Libertys and properties of the said Subjects extreamly 
 Precarious, and that by the violent measures taken in & allowed by it some have 
 been ruined, others obliged to abandon the Colony, and many restrained in it either 
 by Imprisonment or by Excessive bail exacted from them not to depart even when 
 no manner of suits depending ag't them and therefore are of opinion that the 
 Extraordinary proceedings of that Court and Exorbitant fees and charges Coun- 
 tenanced to be Exacted by the Officers and Commissioners thereof are the greatest 
 greivance and oppression this Colony has ever felt and that for removing the fatal 
 consequences thereof they had come to several resolutions which being read were 
 approved by the House and are as follows : 
 
 Resolved, That the Erecting or Exercising in this Colony a Court of Equity 
 or Chancery Ohowever it may be Termed) without Consent in General Assembly is 
 unwarrantable and Contrary to the laws of England and a Manifest oppression and 
 greivance to the subjects and pernicious Consequence to their Libertys and 
 propertys. 
 
 Resolved, that this House will at their next meeting prepare and pass An 
 Act to declare and adjudge all orders ordinances Devisees and proceedings of the 
 
 i Colden's Letters, N. T. Hist. So. pub. (1868), 213. 
 
72 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 court so assumed to be Erected and Exercised as above mentioned to be Illegall 
 Null and void as by Law and of right they ought to be. 
 
 Resolved, that this House will at the same time take into consideration whether 
 it be necessary to Establish a Court of Equity or Chancery in this Colony in whom 
 the Jurisdiction thereof ought to be vested and how far the powers of it shall be 
 prescribed and Limitted examined and Compared with the Journal of the General 
 Assembly. 
 
 G: Ludlow CI. 
 
 On the formal presentation of this minute to the governor and 
 council, the latter forthwith made a minute that they looked upon the 
 assembly's resolves " as unwarrantable and highly Injurious to his 
 Majesty's Prerogative for the recovery of his just Rights in this 
 Province and to the Libertys and propertys of the Subject, who would, 
 if the said Resolutions were of any force, be thereby deprived of all 
 remedys in Equity which they are entitled unto by the Laws and 
 fundamental Constitution of Great Brittain." They, in addition, 
 entered an order directing that " this Minute be published and printed 
 and dispersed throughout this Province And that the Gentlemen of 
 this Board or any five of them be a Committee to make their observa- 
 tions on the said Resolves & that they may report their opinion 
 thereon to this Board." 
 
 At a meeting of the council, August 30, 1728, the committee, of 
 which Cadwalader Colden was chairman, made its report to the 
 governor in council, in which, however, they content themselves with 
 reflecting upon the motives, and the irregular manner of passing the 
 resolutions rather than answering the alleged grievances, and wishing 
 the assembly's resolves might never affect " the propertys & Libertys 
 of the people more than any Act of Council." It is declared, however, 
 "that unless such attempts as this be Effectually discouraged, The 
 Authority of his Magestys Courts may often be in danger from the 
 Artifices of popular men That Judges may be frightened even in Cases 
 where the King is highly concerned from giving Judgment against a 
 Leading man of An Assembly and that the poor may have no means 
 Left of Defending or receiving their right when Invaded by rich & 
 powerful men. If such an open Invasion of the Kings prerogative 
 should now be passed with neglect, any Discourse of it for the future 
 may become the Test of the people." Finally, " we must Zealously 
 Endeavor to discourage all attempts on the Royal prerogative & the 
 Safety of the people in their properties & Liberties from whatever 
 hands they come. The prerogative of the Crown is so closely inter- 
 woven with the Safety of the people that no Attempt can be made 
 upon one without manifest Injury to the other." 
 
 Attacks, however, continued to be made upon the governor's 
 exercise of equitable jurisdiction under the royal prerogative. In 
 1735, on Governor Cosby's refusal to dismiss a bill filed by Sir Joseph 
 Eyles and others to vacate a certain patent of land, on a plea being 
 interposed to his jurisdiction, the defendants made their grievance 
 
HISTORY 01' THE BENCH AND BAR OF NEW YORK 73 
 
 known to the assembly, with the result that a resolution was adopted 
 November 6, 1735, " That a Court of Chancery, in this province in the 
 hands, or under the exercise, of the governour, without consent in 
 general assembly, is contrary to law, unwarrantable, and of dangerous 
 consequence to the liberties & properties of the people." When in 
 1737 the assembly passed a bill " for establishing & Regulating Courts 
 to Determine Causes of Forty shillings & nnder," it made bold, on 
 sending it to the governor and council, for approval, to again call 
 attention, in temperate language, to the general desire of having all 
 courts of general jurisdiction established, and their several jurisdictions 
 and powers appointed and limited, by the legislature, and not left any 
 longer to the uncertain exercise of prerogative power. They pointed 
 
 ^»»«fv<.. 
 
 W/A 
 
 
 
 M "*&!%'/„ „,- 
 
 BROOKLYN FEKRY. 
 
 out that it had been the constant practice in England for Parliament 
 to erect new courts, and to abolish or alter old ones, and no king ever 
 conceived that thereby his just and legal prerogative was in the least 
 diminished ; and here, in New York, the legislature of 1691, at the 
 instance of Governor Sloughter, had erected courts, and subsequent 
 governors had consented to similar legislation, but none of them 
 ever imagined he was giving up the prerogative of his master in 
 assenting thereto, and it was never learned that they were censured 
 for doing so. What they complained of was, that the governor " never 
 would apply for an act establishing a court for the determination of 
 small causes," but that court had been erected by executive order in 
 council, as the Court of Chancery had also been, notwithstanding its 
 original creation by act of the legislature, " in another manner." An 
 
74 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 appeal is then made for the approval of the bill for the court for small 
 causes therewith submitted, but, in view of the notorious dissatisfac- 
 tion which a court of chancery erected by ordinance and not by statute 
 had given the generality of the people, as manifested by repeated 
 resolves of the general assembly, and as often as made contemptuously 
 disregarded by successive governors, the hope is expressed that the 
 long contention between the governor and the assembly on the subject 
 might be ended by establishing a court of chancery, and other courts, 
 by act of the legislature— a course which, being indisputably legal, 
 could not be destructive of his Majesty's prerogative. It was broadly 
 hinted that even a court created by statute would not be satisfactory 
 to the people if it was to be composed, as heretofore, of the governor 
 and council, for the history of the court, as they had managed it, had 
 proved the court " of no use to the publick or benefit to the governors ; 
 few of them had talents equal to the task of a chancellor which they 
 had undertaken to perform, so it was executed accordingly ; some of 
 them being willing to hold such a court, others not, according as they 
 happened to be influenced by those about them ; so that were it 
 really established in the most legal manner (as it was not) yet being in 
 the hands of a person not compellable to do his duty, it was so 
 managed that the extraordinary delays and fruitless expense attend- 
 ing it rendered it not only useless, but a grievance to the inhabitants, 
 especially those who were so unfortunate as to be concerned in it ; 
 which, we hope you think with us, it is high time should be redressed." ' 
 The governor and council, thus addressed, evidently did not think with 
 the assembly on the subject of a statutory court of chancery, although 
 the bill for the court for small causes, after amendment, was finally 
 assented to. To his notice of this address given by Smith, writing in 
 1757, the writer adds that "from this time the chancery was un- 
 attacked by the assembly, but the business transacted in it is very in- 
 considerable." In his opinion, however, " a court of equity is 
 absolutely necessary for the due adminstration of justice," though 
 few, he thinks, " will be ambitious of the chancellor's office, as they 
 have not the assistance of a master of the rolls." 2 
 
 Exchequer Jurisdiction. 
 
 It will be noticed that the hostility of the popular party to the 
 assumed chancery jurisdiction of the governor and council was due to 
 the crown's denial of the exclusive right of the assembly to erect its 
 own courts and fix the limits of their jurisdiction, though any court 
 exempted from the rules of common-law procedure, as courts of equity 
 were supposed to be, was always and everywhere in the American 
 colonies regarded with distrust. It is not surprising, therefore, that 
 
 1 Smith, Hist, of N. Y., ed. of 1814, 386. alleged misstatements of fact to correct, which he pro- 
 
 2 When Smith's History was published Lieutenant- ceeded to do in a series of letters to his son only re- 
 Governor Colden saw many things in it to criticise, and cently published. N. Y. Hist. So, fund i.ub. 
 
HISTORY OF THE BENCH AND BAB OF NEW YORK 75 
 
 every attempt of the Supreme Court to exercise equity powers, though 
 made under the guise of exchequer business, should excite an instant 
 and persistent opposition on the part of the whig bar, than which 
 nothing was surer to receive popular applause. 
 
 The first exchequer-chamber business attempted in the Supreme 
 Court was made by Chief- Justice Attwood shortly after his arrival here 
 in 1701, Lord Bellomont being governor. The latter had come out 
 under special instructions to suppress the illicit trade, not to say piracy, 
 at that time largely engaged in by the merchants and traders of New 
 York. To assist him in this arduous task, a new chief-justice (Att- 
 wood) and an attorney-general (Sampson Shelton Broughton) had been 
 respectively commissioned directly by the king — no resident being 
 trusted in this emergency — to assist in stamping out the evil. The 
 seat of corruption seems to have been in the Court of Admiralty. 
 Attwood was accordingly armed with a commission as Judge of Ad- 
 miralty for New England, New York, and New Jersey, in addition to 
 the chief-justiceship of New York. On his arrival, in the summer of 
 1701, he learned of the case of a vessel which, seized for lack of registry 
 under the navigation acts, had been discharged by the admiralty judge 
 whom he succeeded. What was wanted was some jurisdiction some- 
 where to prohibit, by writ, the execution of the decree discharging the 
 vessel until the admiralty proceedings could be reviewed. But there 
 was no court in the province having an unquestioned right to issue a 
 writ of prohibition against the decree of the Admiralty Court. The 
 chancery jurisdiction of the governor was questioned ; the Supreme 
 Court was claimed by the lawyers to be a court of law only. He con- 
 cluded, however, that, by its constitution, as gathered from the original 
 act of 1691, and the subsequent ordinances continuing the court, the 
 Supreme Court, sitting as a Court of Exchequer, had power, by writ of 
 prohibition, to prevent the discharge of the vessel and the consequent 
 defeat of his Majesty's forfeitures, under the navigation acts, pending 
 an inquiry by it into the legality of the vessel's discharge. He there- 
 upon, assuming to sit as a baron of the exchequer, directed " a sugges- 
 tion to be exhibited to it for a prohibition to the Court of Admiralty 
 upon its sentence in that matter." But as " one of the persons designed 
 for a judge in the Supreme Court had given the obnoxious sentence in 
 favor of the ship," and the other " was a merchant who might be 
 concerned in interest, the Governor thought fit to suspend the 
 granting their Commissions till this matter should be over in the 
 Supreme Court, and therefore," he writes, "the enclosed Ordinance 
 was made empowering me alone to determine this matter." In justifi- 
 cation of his assumption of this extraordinary jurisdiction, Attwood 
 assures the Board of Trade that the matter " had been solemnly argued 
 by Council on both sides," that he had taken due time to compare the 
 authorities cited to him, and to collect others which are produced at 
 large in his " long argument " (enclosed), given on his granting the 
 
76 
 
 HISTORY OF THE BENCH AND BAE OF NEW YORK 
 
 writ of prohibition. 1 Notwithstanding a prompt appeal directly to the 
 king by the vessel's owners, " men of good estates," as he had reported, 
 he proceeded to try the crown's claim to a forfeiture. The captain 
 refused to appear, though " his former attorney offered several things, 
 as amicus curiae, principally the pendency of the appeal." On the 
 facts found a forfeiture was declared, under which the vessel was sold 
 at public auction, to the consternation, we may suppose, of the " men 
 of good estates " engaged in the prevailing illicit trade. 
 
 It is not certain that Attwood's exercise of equity jurisdiction in 
 this instance was followed as a precedent by 
 
 any of his successors, until the case of Governor O^hcA/ 1/visn^ Gcwn,. 
 Cosby against Rip Van Dam arose in 1733, 
 
 when Lewis Morris was chief -justice, with De Lancey and Philipse 
 associate-judges. 
 
 The suit was brought, shortly after his arrival, by Governor Cosby, 
 who had been appointed to succeed Governor Montgomerie, who had 
 died here in July, 1731, and on whose death Rip Van Dam, as senior 
 member of the council, became acting governor. Van Dam had taken 
 to his own use the whole of the governor's allowance by way of salary, 
 for the period intervening between Governor Montgomerie's death 
 and the arrival of his successor, about a year. The new governor 
 claimed that by the terms of the king's order in council, made May 
 
 31, 1732, soon after his appointment, one- 
 half the governor's salary for the period 
 in question had been granted to him. 
 On Van Dam's refusal to recognize the 
 new governor's demand on him to turn 
 over any portion of the salary he had ap- 
 propriated, a suit was instituted by Cosby 
 in the Supreme Court for an accounting 
 instead of an ordinary action on the case 
 upon an indebitatus assumpsit at com- 
 mon law. The suit could not, with de- 
 cency, be brought in the Court of Chan- 
 cery, so-called, of which the plaintiff, being 
 governor, was ex-officio chancellor. To 
 give some warrant of authority for the 
 chief-justice's theory of the Supreme 
 Court's equity jurisdiction, the governor 
 promulgated an ordinance (December 4, 
 1732) enabling its judges to sit as the Court of Exchequer. Van Dam, 
 a city merchant, was closely allied with the so-called presbyterian or 
 whig faction ; his counsel were James Alexander and William Smith, 
 the idols of that faction, and public feeling over the case was wrought 
 up to a state of excitement quite inexplicable to later generations. 
 
 » Attwood to Board of Trade, October 20, 1701, N. Y. Col. Docs., iv., 924. 
 
 MP VAN DAM. 
 
HISTORY OF THE BENCH AND BAB OE NEW YORK 77 
 
 The contention of counsel before Attwood in 1701 was now renewed 
 in 1733 in the Yan Dam case, to wit : that to erect a Court of Excheq- 
 uer or any other court, or to extend an existing court's jurisdiction, 
 without an act of the assembly, was an act of arbitrary power ; that no 
 court of equity, or of any other jurisdiction, could be legally estab- 
 lished except by prescription or an act of the legislature ; that arbi- 
 trary power, though " let in but at a back door," was a menace to every 
 possession a man could call his own — all would be " at the will and 
 disposal of his tyrannical owner." So great was the popular interest 
 in the trial from day to day that, as we are told, " the Exchequer Court 
 bell scarce ever rung, but the city was all in confusion." The court 
 having sustained its exchequer jurisdiction in equity, by the votes of 
 De Lancey and Philipse, second and third judges, as against Morris, 
 C.J., dissenting,' the tumult arose to greater heights. The assumed 
 power of the governor to erect a new court by an executive ordinance 
 was made what would now be called an " issue " in the next election 
 of representatives in the assembly. The ex-chief ^justice, who had been 
 turned out of office by the governor, procured his election as represen- 
 tative of Westchester county, and at once assumed the opposition 
 leadership in the new assembly convening in the spring of 1734. Peti- 
 tions " from several parts of the province " were addressed to the 
 assembly in which the signers, asserting themselves " to be entitled to 
 the liberties of Englishmen," protested that any court, and " especially 
 the Court of Equity lately erected in the Supreme Court of this Prov- 
 ince," was " a grievance and destructive to the liberties of the people, 
 as it is now constituted"; that is, by executive ordinance instead of 
 legislative act. The assembly decided to hear counsel on the subject, 
 and accordingly William Smith, who had appeared for Yan Dam in 
 Cosby's case, and Joseph Murray, the recognized leader of the bar and 
 in sympathy with the theory of prerogative government, were heard at 
 length in the presence of a great audience. Their arguments— which 
 the assembly subsequently ordered to be printed and distributed — are 
 worthy of a fuller notice than can be given here. The debated issue 
 was, at bottom, the same that arose forty odd years later between the 
 United Colonies and the British Parliament, and it may well be doubted 
 whether the American doctrine of home rule, which found its ultimate 
 expression in the Declaration of 1776, ever had fuller or clearer utter- 
 ance than it had in the New York Assembly in 1734. The effect was 
 a popular veto upon any crown-made courts in New York, for, after 
 Cosby against Yan Dam, we hear no more of the Supreme Court's 
 equity jurisdiction. About nine years later, in 1742, " an act for regu- 
 lating the payment of quit- rents " gave the Supreme Court jurisdiction 
 for their recovery, thus establishing, in effect, if not in name, an ex- 
 
 i His opinion was printed in a folio tract of 13 pp., en- Causes in the Conrt of Equity. In a letter addressed 
 
 titled! "The Opinion and Argument of the Chief -Jus- by Lewis Morris to Governor Cosby, New York: 
 
 tice of New York concerning the Jurisdiction of the Printed and sold by J. P. Zenger, 1733." 
 Supreme Court of the said province to determine 
 
78 HISTORY OF THE BENCH AND BAE OF NEW YORK 
 
 chequer branch of the Supreme Court. This jurisdiction, inherited by 
 the Supreme Court of the state, was not taken away until December, 
 1828. It is not doubted that in cases at law, where the examination of 
 a long account was involved, the Supreme Court never declined juris- 
 diction for that reason, but exercised the exchequer-chamber power of 
 ordering a reference to an examiner or referee to try the cause. 
 
 Divorce ajsd Probate Jurisdiction. 
 
 For more than one hundred years before the adoption of the first 
 constitution of the state, and for many years thereafter, judicial dis- 
 solution of marriage was unknown. It was not until 1787 that the 
 legislature of the state authorized the then newly erected Court of 
 Chancery, on a bill filed, to pronounce divorces a vinculo, and then 
 only in cases of adultery. Before that, a special act of the legislature 
 was the only means of effecting a divorce. 1 There is reason for 
 believing that in the first period of the English colonial period before 
 the Revolution of 1688, judicial divorces by the decree of the governor 
 were not unknown. Thus, Governor Lovelace in 1671 entertained an 
 application for a divorce, on the ground of the wife's adultery, which 
 he could only have done, if he cared to act legally, on the theory 
 that the Dutch-Roman law allowing judicial divorces had survived the 
 conquest, and not being repugnant to English law was the then law of 
 the colony. 2 The lack of such a beneficent jurisdiction appears to 
 have been deplored in New York, and parties wanting divorces were 
 compelled to resort to the New England courts. Lieutenant-Governor 
 Colden, writing in 1759, says that the power to grant divorces which 
 the early governors of the province had taken on themselves had been 
 disused since the Revolution of 1688, and there was no court which 
 could give this remedy, " though in neighboring colonies a divorce is 
 more easily obtained than perhaps in any other Christian country." 
 He then adds : '" Query whether this may not be for the advantage of 
 a new country which wants people. It is certain that the natural 
 increase of people in New England has been very great, perhaps more 
 than in any other of the English Colonies." 3 
 
 Jurisdiction of probates and the administration of decedents' estates 
 prior to Dongan's time (1686) was exercised by the Court of Sessions in 
 each of the three ridings into which the province was divided, the 
 court consisting of the justices of the peace within the riding. In the 
 city of New York, however, the Mayor's Court exercised this juris- 
 diction. In all cases of estates exceeding £100 in value, their proceed- 
 ings upon a probate or administration on intestacy were certified and 
 returned to the provincial secretary's office where they were recorded. 
 All letters testamentary or of administration, as the case might 
 require, were issued by the governor under the great seal, as well as 
 
 1 Kent, Comm., ii., 97. » Dvmlap's Hist., i., App. s Colden'e Letters, N. T. Hist. So. pub. (1868), 187. 
 
HISTORY OF THE BENCH AND BAB OF NEW YORK 79 
 
 final decrees in cases of acconnting by personal representatives. In 
 one case, at least, Governor Andros granted letters on his own author- 
 ity, without any proceedings in court. By the instructions which 
 Governor Dongan brought out in 1686, he was directed, among other 
 things, to see that the ecclesiastical jurisdiction of the Archbishop of 
 Canterbury should take place in the province, " as farr as conveniently 
 may bee," except the collating of benefices, the granting of marriage 
 licenses, and the probate of wills, which were reserved to the gov- 
 ernor ; and in a similar letter of instructions to Sloughter, in 1689, the 
 ecclesiastical jurisdiction of the Bishop of London was added. 1 Until 
 the passage of an act by King William's first assembly in 1692, the 
 governor or his secretary appear, by the extant records, to have taken 
 proof of wills and made inventories and appraisements of estates, 
 settled accounts, and granted discharges, in the first instance, though 
 the courts of sessions and the Mayor's Court continued to exercise 
 their powers, in this regard, as theretofore. By the act above referred 
 to, 2 the governor, or his dele- 
 gate, was authorized to probate 
 wills, and to grant administra- 
 tion in cases of intestacy, under 
 the prerogative seal. In cases 
 arising in counties other than 
 New York, Orange, Richmond, 
 Westchester, and Kings (wills 
 in which were to be proved in 
 New York City), the proceed- 
 ings and proof might be taker 
 in the county Courts of Com- 
 mon Pleas, and certified to the secretary's office in New York, where 
 the probate and letters testamentary or of administration, as the case 
 might be, were issued. Where, however, the estate was under £50, the 
 Common Pleas might grant probate and issue letters, subject to an 
 appeal to the governor by an aggrieved party. In fact, the governor 
 exercised the powers of the ordinary or bishop in the ecclesastical 
 courts of England, and the provincial secretary that of registrar. 
 
 The requirement of the act, that wills in the counties of Orange, 
 Richmond, Westchester, and Kings, should be proved in New York, 
 was found to be so onerous, after some years, that the governor com- 
 missioned delegates to act for him in all these counties. In New York 
 county, the deputy-secretary was usually named by the governor as 
 his delegate. Doctor Bridges, afterward appointed chief -justice, was so 
 named by Cornbury in 1792, and it was he who first introduced the 
 title of surrogate, by adding it to his signature of official documents. 
 After 1746, or thereabouts, the local delegates in the several counties, 
 other than New York, began to be called surrogates, and were so 
 
 1 N. T. Col. Docs., iii. 372, et eeq. 2 Smith and Livingston's Laws, 15. 
 
 OLD COURT-HOUSE, POUGHKEEPSI] 
 
80 HISTORY OP THE BENCH AND BAR OE NEW YORK 
 
 named in their commissions. The business thus done in the name of 
 the governor, but in fact by his delegate or surrogate, came to be 
 known as that of the prerogative office or Prerogative Court, which 
 had its own seal. The delegate was a specially commissioned officer, 
 and he was authorized in making decrees in matters of probate and 
 administration to " affix the prerogative seal of the province, without 
 any further fiat or allowance." ' 
 
 The Court op Oyer and Terminer. 
 
 Dongan's abortive legislation of 1683 had provided a Court of 
 Oyer and Terminer composed of one judge, assisted by four justices of 
 the peace of the county, all specially commissioned for the purpose. 
 Under the judicial organization adopted in 1691, a " Court of Oyer and 
 Terminer and General Gaol Delivery " was to be held in each circuit, 
 composed of one of the Supreme Court judges assigned to the circuit 
 and specially commissioned by the governor, and some of the county 
 judges within the circuit. In the city, the mayor and four aldermen 
 sat with the circuit judge. The ancient name of Oyer and Terminer 
 continued to designate the criminal circuit or branch of the Supreme 
 Court, until the new judiciary provisions of the present constitution 
 went into effect on January 1, 1896. When on a circuit the sheriff of 
 the county met the judge and his attendants upon his entrance into 
 the county town and conducted him to his lodging, which, according 
 to the etiquette of the time, was not to be the same as that occupied 
 by the lawyers. Toward the end of the colonial period the judges 
 began to sit in gown and bands, though the bar never donned any dis- 
 tinctive habit. 
 
 Prosecutions by information, by order of the governor and coun- 
 cil, instead of by indictment by a grand jury, were not uncommon. 
 Commitments under warrants issued by the council, of which the 
 judge who might try the prisoner was perhaps a member, gave rise to 
 some complaint and became the occasion of scandal. Warrants were 
 even issued, as in Zenger's case, where the grand jury had refused to 
 bring in an indictment. It was in its criminal branch that the Supreme 
 Court has left a tarnished record. Leisler's trial in April, 1691, at a 
 special Oyer and Terminer, composed of Dudley, Smith, and Philipse, 
 who were immediately after the trial commissioned judges of the new- 
 ly erected Supreme Court, is mentioned by all our local historians. 
 The hanging of Leisler and Milborne, who had been convicted and sen- 
 tenced, though refusing to plead and standing dumb through the trial, 
 caused, under the circumstances, a great revulsion of public feeling 
 against the new court and its judges. Whatever we may think of the 
 regularity of the trial and the justness of the verdict, probably no pub- 
 
 1 Any further account of the prerogative jurisdic- Common Pleas, sitting as surrogate, had occasion to 
 tion in the province would he altogether superfluous in give in deciding Matter of Brick, 16 Abb. Pr. 12. 
 view of the very full account which Judge Daly of the 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 81 
 
 lie event in our colonial history exerted a deeper or more enduring in- 
 fluence on the social and political life of the province throughout its 
 subsequent history than this "barbarous murder" and "revengeful 
 sacrifice," as it was variously characterized. For many years the pub- 
 lic men of New York were known as Leislerians or anti-Leislerians. 
 It was not long after Leisler's execution that his sympathizers had 
 their revenge upon his prosecutors, the chief of whom was Nicholas 
 Bayard. At the time of Attwood's appointment as chief-justice, Leis- 
 ler's attainder had been reversed by act of Parliament, in effecting 
 which the Earl of Bellomont, before he came out as governor, had 
 taken an active part. On his arrival here in 1700 he, as well as Lieu- 
 tenant-Governor Nanfan, were friendly to the so-called Leislerian fac- 
 tion. On the death of Bellomont, Nanfan, Thomas Weaver, the col- 
 lector of the port, and Chief- 
 Justice Attwood were in full 
 control. They caused a war- 
 rant to be issued by the council 
 for the arrest of Nicholas Bay- 
 ard, Rip Van Dam, Philip 
 French, and Thomas Wenman 
 on a charge of high treason, in 
 that they (all anti-Leislerians) 
 had signed addresses to the 
 king, the House of Commons, 
 and to Lord Cornbury, news of 
 whose appointment as gov- 
 ernor had reached the city, 
 charging their opponents then 
 in power with all manner of 
 malfeasance in office, with the 
 connivance and support of 
 Lieutenant-Governor Nanfan. 
 Alderman Hutchins, in whose 
 tavern the addresses were signed, had been committed by Nanfan'for re- 
 fusing to disclose the signers' names. Attorney-General Broughton had 
 given an opinion on the lieutenant-governor's application, to the effect 
 that there was nothing criminal in the addresses, and that Hutchins' 
 refusal to give up the names was not a criminal contempt justifying his 
 commitment. But the grand jury having been induced to bring in an 
 indictment, Attorney-General Broughton was suspended (being commis- 
 sioned by the crown, he could not be removed) and Weaver was appointed 
 to conduct the prosecution before a specially commissioned Oyer and 
 Terminer, composed of the chief -justice, Attwood, and De Peyster and 
 Walters, second and third judges, respectively. De Peyster had been 
 one of Leisler's captains, and the resentment of both of the puisne 
 judges toward Bayard for his activity in instigating Leisler's prosecu- 
 
 LEISLER'S HOUSE. 
 
82 HISTORY OF THE BENCH iKD BAR OF NEW YORK 
 
 tion and subsequent execution was well known. Bayard was tried and 
 convicted of treason under an act of 1691, of which he himself and the 
 anti-Leislerians were the authors, which made it treason for a person 
 to endeavor by force of arms or otherwise to disturb the peace, good, 
 and quiet of the king's government ; and Bayard's promotion of the 
 addresses to the House of Commons, which then had nothing to do 
 with the government of New York, more than with the. government of 
 France or Canada, was held to come within the terms of this act. A 
 full and presumably fair contemporary report of the trial, with the 
 arguments of William Nicoll and James Emott, both able and fearless 
 lawyers, who appeared for the accused, have come down to us. A gen- 
 eral verdict of guilty having been returned by the jury, and a motion 
 in arrest of judgment having been denied, the horrible sentence of the 
 English law for the crime of treason was pronounced, which, as those 
 familiar with our history will remember, was subsequently annulled 
 by Queen Anne. This celebrated trial is noticeable as showing that at 
 this early day, and a century and more before the privilege was ac- 
 corded in England, a prisoner, on a trial for felony, was allowed the 
 
 assistance of counsel. 
 
 It ought to be added 
 
 that in the court's con- 
 
 'i&yi$^$k' *■'•'>- I 1 11 duct of the trial there 
 
 was not such a scan- 
 dalous departure from 
 the models then furn- 
 ished at Westminster 
 Hall as has been alleged. No sympathy need be spent on Nicholas 
 Bayard, the leader of a blood-thirsty faction, who was only rescued 
 from the pit he himself had dug by the timidity or charity of his pros- 
 ecutors. His conviction was had, no doubt, through a strained con- 
 struction of the letter of an obsolete law, but the report of the proceed- 
 ings on the trial does not disclose on the part of the court any such 
 gross violation of the ordinary rules of criminal procedure or perversion 
 of criminal justice, as then understood, as to call for the severe judg- 
 ment which some of our historians have ventured to pronounce. 1 
 
 Another and more widely known trial in the criminal branch of the 
 Supreme Court was that of Zenger, the printer of the New York Week- 
 ly Journal, for seditious libel in 1735. The preliminary proceedings, 
 in which Alexander and Smith, the prisoner's counsel, were summarily 
 disbarred for calling in question the validity of the judge's commissions, 
 have already been mentioned. The trial itself is worthy of notice here 
 because its influence on the constitutional development of the province 
 was marked and permanent. That the argument of Zenger's counsel in 
 favor of a jury's right to find a general verdict in libel cases was known 
 
 1 Ex-Chief-JiiBtice Charles P. Daly's articles in the might be expected, an interesting account of Attwood'-< 
 Streen Bag tor March, April, and May, 1805, furnish, as career and of Bayard's trial. 
 
HISTORY OE THE BENCH AND BAR OP NEW YORK 83 
 
 in England and was availed of in the defence of the great number of 
 persons who, during the next fifty odd years, especially during the 
 early years of George III., were tried in the King's Bench for seditious 
 libel, cannot well be doubted. 1 The most remarkable of these English 
 cases was the information against John Home Tooke in 1777 for a sedi- 
 tious libel in encouraging the American revolt ; that against Dean 
 Shipley, a brother-in-law of Sir William Jones, in 1783, for causing to 
 be reprinted, and recommending, the latter' s tract in favor of Parlia- 
 mentary reform ; and that against Thomas Paine in 1792 for libelling 
 the king in " The Rights of Man." On these trials Lord Erskine, then 
 at the bar, made those matchless appeals in behalf of the right of a 
 jury in a libel case to give a general verdict of guilty or not guilty, 
 which led to the passage of Fox's Libel Act in 1792, by which such ver- 
 dicts were allowed and judges were forbidden to direct a verdict of 
 guilty on proof of publication and of the sense ascribed to it by the 
 prosecution. 2 This right of juries in libel cases, thus secured by stat- 
 ute in England, had been claimed as a common-law right in New York 
 over fifty years before in Zenger's case, and the verdict there of not 
 guilty had established the law of New York in favor of freedom of the 
 press for all time. 
 
 After the exceptions to the information had been overruled, and 
 Zenger had been deprived of the assistance of his counsel (Alexander 
 and Smith), John Chambers, a former puisne judge of the court, was 
 assigned in their place, and on a plea of not guilty, a struck jury was 
 obtained. The leading counsel for the accused, on the trial, was 
 Andrew Hamilton, of Philadelphia. His line of defence was, after 
 admitting the publication, that the matters charged as false, scandal- 
 ous, etc., were true in fact, and, therefore, no libel. Hamilton's address 
 to the jury was a really eloquent, forcible, and courageous effort, and 
 would do credit to any bar in any period of American or English his- 
 tory. Chambers was, if less eloquent, equally effective with the jury, 
 denouncing the authorities cited by Bradley, the attorney-general, as 
 those of the terrible Star Chamber, and claiming that, under English 
 law, it was no libel for men suffering under a bad administration of 
 government to make public their just complaints. He denounced gov- 
 ernment by prerogative in the colonies, and claimed for the freeholder 
 of New York the rights enjoyed by the freeholders of England. The 
 jury, though all attempts to prove the truth of the publications had 
 been overruled, and notwithstanding He Lancey's strong charge that 
 the truth of the libel was outside their province to determine, and 
 that they were judges of the fact only and not the law, returned a 
 verdict, almost at once, of not guilty, which instantly threw the 
 
 1 Zenger's case was published in Howell's State 1792 that Lord Campbell's Libel Act of 1845 permitted 
 
 Trials, xvii. 675. A report of the trial was published the truth to be given in evidence, and thus forever ex- 
 
 in Boston which is thought to have been prepared by tirpated the maxim, "the greater the truth the greater 
 
 one or more of Zenger's counsel. the libel." 32 George III. c. 60. 
 
 * But it was not until fifty years after the libel act of 
 
84 HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 crowded court-room into an uproar of noisy applause, to the conster- 
 nation and indignation of the judges, De Lancey and Philipse. After 
 lying in jail for eight months, Zenger was released and resumed the 
 publication of his paper. For his " learned and generous defence of 
 the rights of mankind and the liberty of the press," the common coun- 
 cil next day presented Hamilton with the freedom of the city in a gold 
 box, with their thanks, and a grand ball was given in his honor on the 
 
 JOURNAL 
 
 O F T H E 
 
 PROCEEDINGS 
 
 I N 
 
 The Detection of the Confpiracy 
 
 FORMED BY 
 Some fVhite- People in Conjunction with Negro and other Slaves, 
 
 FOR 
 
 Burning the City of NEW-YORK in America, 
 And Murdering the Inhabitants. 
 
 Which Confpiracy was partly put in Execution, by Burning His Majefty's Houfe in 
 Fort Geor.ce, within the faidCity^ on Wednefday the Eighteenth of March, 174.1 and 
 fetting Fire to feveral Dwelling and other Houfes there, within a few Days fucceeding. 
 And by another Attempt made in Profecution of the fame infernal Scheme, by putting 
 Fire between two other Dwelling- Houfes within the faid City, on the Fifteenth Day of 
 Ttbruary, 1742 ; which was accidentally and timely difcovered and extinguiOied. 
 
 CONTAINING, 
 
 A Narrative of the Trials, Condemnations, Executions, and Behaviour of the 
 feveral Criminals, at the Gallows and Stake, with their Speeches and Cenfeffloiis ; with 
 Notes, Obfervations and Reflections occafionally interfperfed throughout the Whole 
 An Appendix, wherein, is fet forth fbme additional Evidence concerning the faid 
 Confpiracy and Confpirators, which has come to Light fince their Trials and 
 Executions. 
 I. Lists of the feveral Perfons (Whites and Blacks) committed on Account of the 
 Confpiracy ; and of the feveral Criminals executed, and of thofe tranfported with 
 the Places whereto. 
 
 J5y the Recorder of the City of New York. 
 
 Quid f orient Domini, mident cum tdia. Fures? Vim Eel. 
 
 NEW-YORK 
 
 Printed by "James Parker at the New Printing-Office, 1744 
 
HISTORY OF THE BENCH AND BAE OP NEW YORK 85 
 
 same evening ; and next day, on his way to the barge which was to 
 carry him to Philadelphia, he was escorted with great ostentation, 
 and, on sailing, received a parting salute of cannon and multitudinous 
 huzzas.' 
 
 There are few incidents in our judicial annals which the annalist 
 more regrets to record than the conduct of the trial of the alleged con- 
 spirators engaged in the so-called negro plot in 1741, Chief-Justice 
 Horsmanden presiding. The exculpatory volume published by him, in 
 1744, concerning what he calls " the Conspiracy Formed by Some White 
 People, in Conjunction with Negro and other Slaves, for Burning the 
 City of New York, and Murdering the Inhabitants," failed to convince 
 his own, much less any succeeding, generation of anything other than 
 a plot of petty thieves to create by incendiary fires a state of public 
 alarm to facilitate pillage. The ready acceptance by the public of the 
 theory that an alleged Catholic priest, at the instigation of the King 
 of Spain, with whom England was then at war, was at the bottom of 
 the plot, was a disgraceful surrender to the bigotry of a past century. 
 The senseless panic, amounting to madness, into which the people, 
 from the highest to the lowest, were thrown, is inexplicable when the 
 contemptible origin of the tragedy, and the inconclusive and even 
 absurd testimony of an ignorant, half-witted, or else wickedly cunning 
 girl of fifteen years, on which a grand jury of the leading citizens of 
 the city brought in an indictment, are considered. But the most dis- 
 graceful feature of the craze was the conduct of the bar — then com- 
 posed of such men of talent and high character as Joseph Murray, 
 James Alexander, William Smith, Jr., John Chambers, David Jamison, 
 and Lodge, who, by general agreement, refused to step forward in 
 defence of any one of the trembling slaves, and not less wretched 
 whites, over one hundred and fifty all told, who were implicated, and 
 foredoomed. The trial court and the attorney-general (Bradley) were 
 aided by the whole bar ; and judge and lawyers were applauded and 
 egged on by the most enlightened and influential citizens of the town. 
 In the course of three months, more than one hundred and forty 
 negroes — four of them women — were locked up; over one hundred 
 were convicted of the conspiracy as charged, twelve of whom were 
 burnt alive at the stake, eighteen hanged, and seventy -two— some of 
 whom were probably freemen— transported to be sold as slaves in for- 
 eign countries. Twenty whites were committed, of whom only two were 
 executed. Not one of them had the benefit of counsel, and whenever 
 the master of an implicated slave ventured to furnish proof by way of 
 defence, such as an alibi, good character, or other circumstance, his 
 testimony was wholly disregarded. " For its disregard of all rules of 
 legal evidence, for its prostitutions of the forms of law, for the perpe- 
 tration of cruelty, for popular credulity and cowardice, for the abnega- 
 
 i The observation of Gouverneur Morris, made long afterward, that " Zenker's trial in 1735 was the germ of 
 American freedom," ha6 been often quoted. 
 
86 
 
 HISTOKT OF THE BENCH AND BAR OF NEW YOKE 
 
 tion of all sense of mercy, for the oppression of the weakest and most 
 defenceless, the whole transaction was without precedent, and has no 
 parallel in any civilized community." 1 Allowing, however, for the 
 terrors of an anticipated insurrection, from which a slave-holding 
 community must always suffer, the Negro-plot trials in New York 
 cannot be said to have exceeded, if they equaled, the atrocity which 
 characterized the " Popish-plot " judicial murders in England in 1679, 
 which Lord Campbell declares to be " more disgraceful to England 
 than the massacre of St. Bartholomew's to France," under the presid- 
 ing genius of Chief-Justice Scroggs, of loathsome memory. 2 
 
 Chief -Justice Horsmanden appears in better guise in the courage- 
 ous stand he and his associate judges took in 1764, against the govern- 
 ment, in the matter of appeals in civil causes, which involved the grav- 
 
 THE GOVERNMENT HOUSE. 
 
 est constitutional question— to wit, whether the king, in requiring, by 
 his instructions to the governor, the allowance of an appeal to the 
 latter and his council from civil judgments of the Supreme Court, was 
 not exceeding the constitutional limits of his power, it being conceded 
 that such an interference with judicial procedure in England was 
 beyond his power. Why not equally out of his power in an English 
 colony 1 Before the promulgation of this new instruction of George 
 III., a Supreme Court judgment, in a civil action, could be reviewed 
 by the governor and council by writ of error only, on which only errors 
 of law were assignable, the evidence not appearing on the record ; 
 whereas an appeal, as was now directed to be allowed, would bring up 
 the whole record, including the evidence on which the verdict was 
 found — having the effect, it was claimed, of enabling a defeated party, 
 if rich or powerful enough to appeal, to defeat the verdict of a jury. 
 In the case of Force vs. Cunningham, a verdict having gone against 
 
 1 Bryant and Gay's lt Popluar History of the United referred to Mr. Gay's account, the best the writer knows 
 States," iii., 234. For many interesting details of the of. See also Valentine's Manual for 1870, p. 764. 
 trial, not possible to be given here, the reader may be 2 Campbell's " Lives of the Chief -Justices," ii., 359. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 87 
 
 defendant, at the fall term of 1764, the latter, by his attorney-in-fact— 
 he being a non-resident — petitioned the governor and council for per- 
 mission to appeal, which the governor, Colden, granted, notwithstand- 
 ing strong opposition on the part of Horsmanden and other members 
 of the council. He called on the attorney-general, John Tabor Kempe, 
 to assist in drafting the writ, as none of the appellant's attorneys or 
 counsel, and indeed no lawyer in the town, would appear for the appel- 
 lant, or would advise the governor. But the governor, though not a 
 lawyer, as he said, with the help of the appellant's representative, 
 drafted " a writ of Inhibition," addressed to all the officers of the 
 Supreme Court, staying all proceedings on the judgment, and a day or 
 two afterward sealed another writ, which directed the chief justice to 
 bring up the proceedings to the governor and council. A great outcry, 
 or " popular clamour," as Colden calls it, immediately arose, but, to the 
 satisfaction of " the republican faction," the chief-justice — Smith and 
 Livingston, J.J., sitting with him— flatly refused to obey the writ, or 
 to recognize the stay of proceedings, and this in such an offensive 
 manner as to furnish the lieutenant-governor another opportunity to 
 inveigh against the lawyers and judges, who, he said, appeared resolved 
 to make the court the ultimate resort of justice, and thus increase their 
 already enormous influence in the province. Of the few people in the 
 province, " almost universally ignorant," who had a liberal education, 
 most of them, he said, were lawyers, whose opposition to the scheme 
 of appeals — based as it was on the absurd idea that as the king could 
 not establish courts or regulate their procedure in England, he 
 could not do so here — would, if it should prevail, be " subversive of 
 every government in the colonies, where all of them depend upon the 
 king's charter, or on his commission to his governor," not only for 
 their executive, but their judicial powers. He complains that the 
 judges, instead of " giving the reasons of their judgments in private 
 and simply, as I had expected, surprised me by harranguing to a large 
 audience to make his Magesty's Instructions appear illegal and arbi- 
 trary, and to render his Governor odious in the eyes of the people." 
 He says he at first thought the chief -justice had gone further than 
 either of the. other judges was willing to follow him ; " but to what 
 length Justice Livingston has gone will best appear from his harrangue 
 which he industriously intruded on the last day of the hearing with- 
 out being desired to speak on this occasion." ' 
 
 The governor's report to the privy council of the judges' contu- 
 macious conduct brought back the peremptory order of the king in 
 council, commanding them to send up the proceedings, but they refused 
 to comply with another writ which the governor sealed. 2 Thus ended 
 
 1 N. Y. Col. Docs., vii., 676, 681,695. These " har- that our Constitution is to be altered by the King's 32nd. 
 
 rangues " were printed and eagerly read. "The grand instruction and trial by Juries taken away." Ibid. 699. 
 
 Engine," the governor wrote, "by which the Judges 2 Letter of Judge Livingston to his father; Hunt's 
 
 and Lawyers endeavor to inflame the minds of the "Life of Edward Livingston," 37. 
 people, easily misled T>y sounds, is by boldly suggesting 
 
88 HISTOET OF THE BENCH AND BAR OF NEW YORK 
 
 the first and last appeal under George the Third's 32d "Instruc- 
 tion." 
 
 The last circuit of the Supreme Court was held by Judge Thomas 
 Jones at White Plains in April, 1776. He tells us in his History that 
 one of the reasons for his being subsequently attainted was that, at 
 this ciruit, he discharged from custody several persons arrested as loy- 
 alists by the Westchester county committee. The last court for Tryon 
 county had been held at Johnstown in the month of October, 1775. 
 
 Closing of Civil Courts by General Howe. 
 
 Unlike General Washington, who, during his occupation of the 
 city, interfered in no way with the local magistrates in the exercise of 
 their functions, the British general on his entry in September, 1776, 
 shut up the civil courts, and everywhere within the British lines — that 
 is, on Long Island, Staten Island, Manhattan Island, and in a good part 
 of Westchester — the inhabitants, as well the loyal as the disloyal, were 
 given over to a plundering soldiery. For want of civil magistrates, or 
 by the indifference or connivance of military commanders, the thieves 
 went unpunished and the stolen property was irrecoverable. 1 In such a 
 state of distress upward of a thousand reputable persons within the Brit- 
 ish lines signed a petition addressed to Lord Howe (October 16, 1776), 
 praying that he would " Restore this City & County to his Magesty's 
 Protection and Peace " — in other words, would re-establish civil power 
 in the place of military rule. Among the signers were Chief-Justice 
 Horsmanden, Justices Ludlow and Hicks — Judge Jones being then 
 upon his parol at Fort Neck, — and such leading lawyers as Samuel 
 Jones, John Tabor Kempe, and Benjamin Kissam, all of the episcopal 
 and some of the other clergy, and several nierchants of high standing. 
 The chief -justice wrote a personal letter to Governor Tryon asking him 
 to present the petition. ' No answer to the petition was ever received 
 from General Howe. In parts of the province outside the British lines 
 no attempt was made either by the provincial congress or by the state 
 convention to remedy the inconvenience occasioned by a lack of courts 
 of justice. As the authority of the royal government declined, disorders, 
 of course, increased. Those of the local judges and other civil officers 
 who were loyalists were odious to the great body of the people, who 
 regarded with contempt or open defiance their attempts to execute the 
 duties of their office. Those known to be in sympathy with the popu- 
 lar movement were generally recognized and obeyed. The old forms 
 of process for the recovery of debts and the punishment of crimes were 
 continued. Some of the counties endeavored to remedy the inconven- 
 
 1 Judge Jones says he saw the books which Joseph 1st Institute, or what is usually called Coke upon Little- 
 Murray, the lawyer, had bequeathed to King's College, ton, was offered to me for Is. 6d. I saw in a public 
 "publicly hawked 'about the town for sale by private house on Long Island nearly forty books, bound and let- 
 soldiers, their trulls and doxeys." " I saw," he adds, tered, in which were affixed the armsof Joseph Murray, 
 "an Annual Register, neatly bound and lettered, sold Esq., under pawn for from one dram to three drams 
 for a dram, Freeman's Reports for a shilling, and Coke's each." 
 
HISTORY OF THE BENCH AND BaR OF NEW YORK 
 
 89 
 
 ience by local and tem- 
 porary regulations, but 
 these were not approved 
 by the provisional gov- 
 ernment. 1 
 
 It was not until 1780, 
 on the arrival of General 
 Robertson, who dis- 
 placed Tryon as civil gov- 
 ernor, that " Courts of Po- 
 lice" were established and 
 a pretense made of re-es- 
 tablishing the Supreme 
 Court. The chief-justice 
 and Justice Hicks were 
 dead, leaving Ludlow 
 and Jones. To the cha- 
 grin and indignation of 
 these two surviving 
 judges, whose loyalty to 
 the crown was unques- 
 tionable, a mere practi- 
 tioner at the bar, and one 
 whose loyalty was sub- 
 ject to suspicion at least, 
 formerly an ardent and 
 even violent young whig 
 and presbyterian parti- 
 san, was preferred to 
 them at a salary of £500 
 sterling. This was Wil- 
 liam Smith, the younger, 
 better known to us as the 
 historian of the province. 
 He was appointed, says 
 Judge Jones (truly 
 enough), " at a time when 
 no law but Military and 
 Police law existed, when 
 not a Court of Justice 
 under the jurisdiction of 
 Britain was open, and 
 when there was no more 
 occasion for a chief-jus- 
 tice than there was for 
 a Bishop or a Pope." 
 
 1 Sparks' " Life of Gouverneur Morris.' 
 
90 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 Appointed after the Declaration of Independence, he has never been 
 recognized as a member of the provincial Supreme Court, though but 
 for his final and hesitant defection from the friends of his youth in his 
 country's struggle for independence, his .name must be numbered 
 among those of his contemporaries who adorn the annals of New York. 
 
 The Later Colonial Bar. 
 
 The generation of New York lawyers on the stage for the quarter 
 of a century or more before the Declaration of Independence was com- 
 posed of men who, whether for their learning in the law, their skill in 
 forensic contests, or their liberal views and enlightened patriotism in 
 matters of public concern, were the equals of any colonial bar, and wor- 
 thy to be associated in history with their better known immediate suc- 
 cessors, John Jay, James Duane, Grouverneur Morris, Robert It. Liv- 
 ingston, Jr., Egbert Benson, Peter Van Schaack, and others less well 
 known. As a body they obtained a very remarkable influence in shap- 
 ing popular opinion in opposition to the increasing arbitrary action of 
 the British king and parliament. Writing to the Earl of Halifax, 
 February 22, 1765, Lieutenant-Governor Colden deprecated the growing 
 influence of the lawyers : 
 
 The dangerous influence (he said) which the Profession of the law has obtained 
 in this Province, more than in any other part of his Majesty's Dominions, is a prin- 
 cipal cause of disputing appeals to the King, but as that influence likewise extends 
 to every part of the Administration, I humbly conceive that it is become a matter of 
 State which may deserve Your Lordship's particular attention. After Mr. De Lan- 
 cey had, by cajoling Mr. Clinton, received the Commission of Chief-Justice dureing 
 good behaviour, the Profession of the Law entered into an Association the effects of 
 which I believe Your Lordship had formerly opportunity of observing some striking 
 instances. They proposed nothing less to themselves than to obtain the direction of 
 all measures of Government, by making themselves absolutely necessary to every 
 Governor in assisting him while he complied with their measures & by distressing 
 him when he did otherwise. For this purpose every method was taken to agrandise 
 the power of the Assembly, where the profession of the law must allwise have great 
 influence over the members, & to lessen the Authority & influence of the Gover- 
 nor. In a country like this, where few men, except in the profession of the Law, 
 have any kind of literature, where the most opulent families, in our own memory, 
 have arisen from the lowest ranks of the people, such an association must have 
 more influence than can be easily imagined. By means of their profession they 
 became generally acquainted with men's private affairs & necessities, every man 
 who knows their influence in the Courts of Justice is desirous of their favor & af- 
 frayed of their resentment. Their power is greatly strengthened by inlarging the 
 powers of the popular side of government & by depreciating the powers of the 
 Crown. The Proprietors of the great tracts of Land in this Province have united 
 strongly with the lawyers, as the surest support of their enormous & iniquitous 
 claims & thereby this faction has become the more formidable and dangerous to 
 good Government. Mr. Prat, who had no family or private connections in this 
 Province, while he was Chief Justice, discovered the dangerous influence of this 
 faction in the Administration of Justice, as well as otherwise, and resolved with the 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 91 
 
 assistance of Government to hn.ve crushed it ; but he was prevented by death. Many 
 who have either felt or perceived the bad effects of the domination of lawyers la- 
 ment the loss of such a judge. All Associations are dangerous to good Government, 
 more so in distant dominions, & Associations of lawyers the most dangerous of any 
 next to the Military. Were the people freed from the dread of this Dominion of the 
 Lawyers I natter myself with giveing general joy to the People of this Province. I 
 never received the least opposition in my administration except when I oppose the 
 views of this Paction. I am confident their views intirely defeated by the means I 
 humbly proposed in my praeceding letter, with the concurrent assistance of his Maj- 
 esty's Ministers when it becomes necessary. 1 
 
 The influence of the legal profession in shaping public opinion in 
 the colonies, in hostility to the stamp act and other legislation of par- 
 liament intended to impose obligations of British citizenship, without 
 bestowing corresponding rights, was fully recognized in England. 
 
 
 BRITISH LBAVISG NEW YORK. 
 
 Edmund Burke, who was well acquainted with New York affairs, hav- 
 ing been the London agent of the province from December, 1770, until 
 the dissolution of the assembly in April, 1775, 2 declared that very early 
 in the history of the American colonies their respect for law was 
 remarkable. " In no country perhaps in the world," he said, " is the 
 law so general a study. The profession itself is numerous and pow- 
 erful ; and in most provinces it takes the lead. The greater number 
 of the deputies sent to congress were lawyers. But all who read— 
 and most do read— endeavor to obtain some smattering of that science. 
 I have been told by an eminent bookseller that in no branch of his 
 business, after tracts of popular devotion, were so many books as those 
 on the law exported to the plantations. The colonists have now fallen 
 into the way of printing them for their own use. I hear that they have 
 
 1 N. T. Col. Docs., vii., 705. cerning the Quebec Bill, which the New York Historical 
 
 « His correspondence with the assembly has never Society has. No one knows what has become of the 
 
 been published, and no part of it is known to exist in papers of the colonial assembly. 
 
 the United States, except a MS. copy of a letter con- 
 
92 HISTORY OF THE BENCH AND BAB OE NEW YORK 
 
 sold nearly as many of Blackstone's Commentaries in America as in 
 England." ' 
 
 Sir William Blackstone's celebrated Commentaries— " too cele- 
 brated," according to John Austin — were published in'London in 1765-8 
 in four volumes. The first American edition, in four folio volumes, was 
 published in Philadelphia by Robert Bell in 1771-3 ; and, in 1774, a sec- 
 ond edition, in four volumes quarto, was advertised as in press. But it 
 was not the milk-and-water of Blackstone, but the strong meat of 
 Coke, that nourished the early American lawyer. Writing more than 
 half a century after Blackstone's appearance, Thomas Jefferson mourns 
 over his reminiscences of the time before Blackstone. In a letter to 
 President Madison, February 17, 1826, alluding to Coke's First and 
 Second Institutes as being the text-books of American law-learning, 
 when he himself was a student of them— and Blackstone, too, a 
 novice—" a man," he writes, " of profounder learning in the orthodox 
 doctrines of the British Constitution, or in what were once called 
 English Liberties, never wrote. But when his black letter text and 
 uncouth cunning learning got out of fashion, and the honeyed Mans- 
 fieldian of Blackstone became the student's hornbook, from that 
 moment, that profession began to slide into torpor ; and nearly all the 
 young brood of lawyers are now of that line." ° 
 
 To that former generation of strong men, of whom Jefferson 
 speaks, belonged such lawyers, in New York, as William Nicoll, 
 James Emott, already mentioned, Joseph Murray, James Alexander, 
 the two William Smiths — father and son, — William Livingston, John 
 Morin Scott, John Chambers, Samuel Jones, Richard Varick, Richard 
 Morris, and Benjamin Kissam. Their pupils, forming the junior bar 
 when the outbreak of the Revolution was close at hand, were John 
 Jay, Robert R. Livingston, Jr., Peter R. Livingston, Gouverneur 
 Morris, Egbert Benson, Peter Van Schaack, and George Clinton. 
 
 Of the judges in office at the Declaration of Independence — Hors- 
 manden, Thomas Jones, Ludlow, and Hicks — all maintained their 
 
 1 Burke's Works, i. 188. tory of the Pleas of the Crown," published posthu- 
 a " Letters and Correspondence," lv., 436 ; Tucker's mously, in two volumes, in 1736-9, and Bohun's " Insti- 
 "Life," ii. 547. Before that, in a letter to Judge Tyler, of tutlo Legalls" were regarded as indispensable, to say 
 June 17, 1812 ("Letters & Cor." iv.,183; Tucker's "Life," nothing of Jacob's " Law Dictionary " (1739), his " Law 
 ii., 361), he said he had been laboring to "uncanonize" Grammar " (1749), and his " Practicing Attorney's Com- 
 Blackstone in Americaand restore the worship of Coke — panion." Of course, " Coke on Littleton " was the great 
 but all in vain. It may be worth while to notice the standard text-book. Eobert Bell's publishers'-list of 
 text-books placed in law students' hands before Black- reprints advertised in 1774 probably contains the text- 
 stone gave them a quietus. Sir Henry Finch's " Of books thought to be essential to every lawyer's working 
 Law, or a Discourse thereof," was the law-student's first library at that time. They were: (1) "Coke's Corn- 
 manual and principal guide. Originally published in mentaries upon Littleton in one large folio, page for 
 1613, in- law-French, under the title of " Nomotechnla," paa;ewith the last London edition, at sixteen Dollars to 
 with a long sub-title, an English translation by the au- subscribers, although the London edition is sold at 32 
 thor was published fourteen years later. It was anno- Dollars : (2) Bacon's New Abridgment of the Law in 
 tated by Dunby Pickering in 1759. Wood's " Institutes five volumes 4-to, page for page with the last London 
 of the Laws of England," in two volumes, published in Edition at 20 Dollars to subscribers, although the Lon- 
 1722, with a tenth and last edition appearing in 1722— don edition is sold at 40 Dollars ; (8) the second edi- 
 which Blackstone says was little more than Finch's tion of Blackstone's Commentaries, at 3 Dollars per 
 Discourse modernized — paled before the bright light of volume." 
 the immortal commentator. Sir Matthew Hale's " His- 
 
HISTORY OF THE BENCH AND BAB OF NEW YORK 93 
 
 adherence to the crown, as did Jauncey, the master of the rolls ; but, 
 as a body, the lawyers espoused the cause of their country, in whose 
 councils many of them, as we know, attained positions of commanding 
 influence. It was a frequent taunt in ministerial circles, at West- 
 minster, that the whole unfortunate trouble, from the stamp act on to 
 the Declaration, was an affair of the colonial lawyers. This was, in 
 part, the truth. But that the cause of institutional liberty, fought 
 out here, was the cause of England, as well as of America, has been 
 often acknowledged in the mother country ; for " there remains no 
 doubt," says Buckle, " that the American war was a great crisis in the 
 history of England, and that if the colonies had been defeated, our 
 liberties would have been for a time in considerable jeopardy." ' 
 
 1 " History of Civilization," i. 
 
JUDICIAL ORGANIZATION AND LEGAL ADMINISTRA- 
 TION FROM 1776 TO THE CONSTITUTION OF 1846. 
 
 N order clearly to understand how the law was administered 
 in the State of New York, after the Declaration of In- 
 dependence, it is necessary that one 
 should have some knowledge of the 
 
 GKEAT SEAL OP NEW YORK. 
 
 status of the law at that period of New York's 
 development. 
 
 In 1756 William Smith wrote a " History 
 of New York," which contains a good account 
 of the laws and of the courts of the Colony 
 or Province of New York immediately prior 
 to the Declaration of Independence. He was 
 well qualified to speak on the subject, because 
 he was himself a lawyer of ability, and was 
 at one time the chief-justice of the Supreme Court of the province. He 
 says that the state of the law opened the door to much controversy ; that 
 the common law of England and such statutes as were enacted before the 
 province had a legislature of its own were generally received ; and that 
 the practice of the courts was uncertain, some of the English rules 
 being accepted and others rejected. The courts named by him are the 
 Justices' Court, the Sessions and Court of Common Pleas, the Supreme 
 Court, the Court of Admiralty, the Prerogative Court, the Court of 
 
 the Governor and Council, 
 and the Court of Chancery. 
 Justices of the peace, he 
 says, were appointed by 
 commission from the gov- 
 ernor ; some of them could 
 neither read nor write. 
 Besides their ordinary 
 powers they were enabled 
 by acts of the assembly to 
 hold court for the deter- 
 mination of small cases of 
 £5 and under, but the 
 parties might have, if they 
 chose, a jury of six men. The justices had jurisdiction in criminal cases 
 under the degree of grand larceny, and any three of them might try 
 
 HEW YORK SEAL, 177 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 95 
 
 a criminal without a jury, and inflict punishment not extending to life 
 or limb. 
 
 The Court of Common Pleas had cognizance of all cases where the 
 matter in demand was in value above £5. There were ordinarily 
 three judges who held their office during pleasure, and these judges, 
 together with some of the justices of the peace, held at the same time 
 Courts of the General Sessions of the Peace. 
 
 The jurisdiction of the Supreme Court extended through the 
 whole province, and its powers were very great, for it took cognizance 
 of all causes civil and criminal, as fully as the King's Bench and 
 Common Pleas at Westminster. In civil cases the value of the sum 
 demanded must exceed £20. It held court four times in the year, and 
 always at New York ; 
 it had a chief-justice 
 and two associate jus- 
 tices. The chief -justice 
 had ten shillings as a 
 perquisite upon the 
 first motion in every 
 case, together with an 
 annual allowance of 
 £300. The judges were 
 judges of nisi prius, 
 of course, and went 
 over a circuit of the 
 counties once every 
 year. They also car- 
 ried with them a com- 
 mission of Oyer and 
 Terminer and general 
 jail delivery, in which 
 some of the county justices were joined. In 1765 an act was passed 
 directing barristers, etc., to wear robes, but it never was obeyed by 
 those concerned. 
 
 The, Court of Admiralty had jurisdiction in all maritime affairs, 
 not only in New York, but also in New Jersey and Connecticut. The 
 proceedings were according to the course of the civil law. 
 
 The business of the Prerogative Court related to the probating of 
 last wills and testaments, and the granting of letters of administration 
 on intestates' estates. The powers relative to these matters were com- 
 mitted to the governor, who acted by a delegate. 
 
 The Court of the Governor and Council seems to have been an 
 appellate court, in all cases where the value of the litigation did not 
 exceed £300 sterling. 
 
 SHAKESPEARE TAVERN, CORNER FULTON AND NASSAU STREETS. 1 
 
 1 This tavern, erected many years before the Revo- 
 lution, was the favorite resort of prominent lawyers, 
 politicians, statesmen, and other celebrities during the 
 
 last part of the eighteenth century and the first thirty 
 years of the present century. It was demolished in 1836. 
 
96 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 The Court of Chancery was the most obnoxious of all the courts 
 to the people ; it seems to have had the same jurisdiction as the Court 
 of Chancery at Westminster. 
 
 All of the courts mentioned by Smith, except the Prerogative 
 Court and the Court of the Governor and Council, were continued 
 under the constitution of 1777. 
 
 This in brief was the condition of affairs relating to the administra- 
 tion of justice on the 19th day of April, 1775, the day on which the 
 shot was fired that was heard around the world, and the day from 
 which the legal history of the State as distinguished from the Colony 
 of New York begins, although New York was not legally declared to 
 be a state until July 8, 1776. The writer does not wish to be under- 
 stood as saying that it was because the battle of Lexington was fought 
 on the 19th day of April that the .first constitution of the state 
 declared that " such parts of the common law of England and of the 
 statute law of England and Great Britain .... as together did form 
 the law of the said Colony on the 19th day of April, 1775, shall be 
 and constitute the law of this State." The convention at which this 
 constitution was adopted met on the 20th day of April, the Colony of 
 New York ceased to exist on the 19th day of April, and the State of 
 New York began to exist on the 20th day of April, 1775. 
 
 It is also necessary, in order fully to understand the administra- 
 tion of the law in 1775, that a few words should be said about the 
 people among whom and over whom the law was administered. 
 
 At the time above mentioned the population of the state — white 
 and black — was about 175,000. It was divided into twelve coun- 
 ties — Suffolk, Queens, Kings, Richmond, New York, Westchester, 
 Dutchess, Cumberland, Gloucester, Charlotte, Orange, Ulster, Albany, 
 and Tryon. New York county was not the largest, although it was 
 the chief place of trade and of fashion in the colony. In 1771 Albany 
 county had 42,706 inhabitants, Dutchess 22,404, while New York had 
 but 21,863. The constitution of 1777 gave Albany county ten members 
 of assembly, New York nine, Dutchess seven, and Westchester six. 
 The only newspaper outside of the city of New York was the Gazette, 
 which was established at Albany in 1771. There were but few roads, 
 and most of them, were poor ones, and the means of communication 
 were so slow that news of the battle of Lexington did not reach the 
 City of New York until the 24th of April. The inhabitants were 
 mostly of Dutch descent, although there were many settlers of English 
 descent in some of the counties, notably Suffolk county. • 
 
 A good idea of the primitive condition of the country may be 
 obtained from an act passed on the 19th day of March, 1778. It is 
 entitled " An act to ascertain the places from whence the milage fees of 
 the respective sheriffs of the several counties in the state shall be 
 computed." 
 
 It provides " That the Sheriff of Suffolk County shall compute his 
 
HISTORr OF THE BENCH AUD UAR OF NEW YORK 
 
 97 
 
 B H " 
 
 h I o * 
 
 * ltd 
 
98 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 fees from a path commonly known as the Wading River Path, about 
 seven miles to the westward of the County Hall in said County, at the 
 junction of said path with the County Road which passes through 
 Nassau Island, about the middle thereof ; the Sheriff of Queens County 
 from a certain pond commonly called Wind Mill Pond, near the north 
 side of Hempstead Plains; the Sheriff of Dutchess County from the 
 house wherein Myndert Vielle Esq., now lives in Beekman's Precinct ; 
 the Sheriff of Westchester County from the house of William Ogden in 
 North Castle ; the Sheriff of the County of Ulster from the house of 
 Mrs. Ann DuBois, in the neighborhood of the New Paltz in said 
 county ; the Sheriff of the County of Tryon from a pass in the mountain 
 called Anthony's Nose in said County ; the Sheriff of the County of 
 Charlotte from the meeting-house in the town of New Perth, and the 
 Sheriff of the County of Gloucester from the meeting-house in the Town 
 of Newbury in said County." 
 
 At the time of the Declaration of Independence and for some time 
 thereafter the rules relating to the admission of attorneys and coun- 
 sellors were very lax. Smith, in the History above referred to, com- 
 plains that the door of admission to the practice of the law was too open. 
 
 The usual preparation for admission to the Supreme Court was a 
 college or university education and three years' apprenticeship, or 
 without the former, seven years' service under an attorney. In either 
 of these cases the chief-justice recommended the candidate to the gov- 
 ernor, who thereupon granted a license to practice, under his hand and 
 seal at arms. After taking the usual oath the person then became 
 qualified to practice in every court in the province. Attorneys were 
 admitted into the county courts with less ceremony ; for the governor 
 formerly licensed all persons, no matter how indifferently recom- 
 mended, and the profession was shamefully disgraced by the admission 
 of men, not only of the meanest abilities, but of the lowest employ- 
 ments. 
 
 The constitution of 1777 provided that all attorneys, solicitors, and 
 counsellors-at-law should be appointed by the court in which they were 
 to practice, and should be licensed by the first judge of such court, and 
 should be regulated by its rules and orders. The writer has not 
 been able to find any rule in the Supreme Court relating to the admis- 
 sion of attorneys and counsellofs-at-law of an earlier date than those 
 of the October term, 1797, which are to be found in Coleman and 
 Caines's " Cases of Practice, determined in the Supreme Court of Judicar 
 ture of the State of New York, from April term, 1794, to November 
 term, 1805, both inclusive. To which is prefixed all the rules and orders 
 of the Court to the present time." 
 
 These rules provide that no person shall be admitted to practice 
 as an attorney of the Supreme Court, unless he shall have served a 
 regular clerkship of seven years with a practicing attorney of the 
 court ; but any period of time, not exceeding four years, during which 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 99 
 
 a person after lie shall have been fourteen years of age shall have pur- 
 sued classical studies, shall be accepted in lieu of an equal portion of 
 time of clerkship. 
 
 These rules also provide for filing a certificate of clerkship, and 
 that if the clerkship shall be intended to be for less than seven years 
 because of the fact that the person has pursued classical studies, that an 
 application shall be first made to a judge, who on examination of the 
 matter shall make an order which is to be annexed to the certificate, 
 purporting that it satisfactorily appears to him that the person apply- 
 ing has pursued classical studies after he was fourteen years of age, for 
 such a period of time, not exceeding four years, as shall be specified 
 in the order, and thereupon ordering that the clerkship shall be for the 
 term which shall remain after deducting from seven years the time so 
 to be specified in the order. After four years' practice an attorney was 
 entitled, as of course, to be admitted to practice as counsel. This rule 
 was modified by a rule of the November 
 term, 1804, so that a practice of but three 
 years was required. By a rule of the 
 August term, 1806, it was provided that 
 no person other than a natural born or 
 naturalized citizen of the United States 
 should be admitted as an attorney and 
 counsellor of the Supreme Court of the 
 
 Otaie 01 -IN ew JL OrK. PROVOST jail, now hall op records. 
 
 The rules relating to the admission 
 of solicitors in chancery are substantially to the same effect, except 
 that the person applying to be admitted was examined before the 
 chancellor, vice-chancellor, or such other officer of the court as the 
 chancellor directed upon a special order for examination previously 
 made. 
 
 Rule 8 of the Supreme Court, passed at the January term, 1799, 
 affords an instance of the primitive condition of the State of New York 
 in that year. It requires every attorney residing in the City of New 
 York to have an agent in the City of Albany, and every attorney resid- 
 ing in the City of Albany to have an agent in the City of New York, 
 and attorneys residing elsewhere to have two agents, one in the City of 
 New York and the other in the City of Albany. The object of this 
 rule was to make it less difficult to serve papers on attorneys in actions. 
 
 Many of the most prominent attorneys and counsellors-at-law 
 either sided with the crown or were lukewarm toward the colony. 
 For that reason an act was passed in 1779, which recited in its 
 preamble that many persons who had been licensed to plead and 
 practice as attorneys, solicitors, and counsellors-at-law in the several 
 courts of Law and Equity within the State whilst the same wajs under 
 the government of the King of Great Britain, as the Colony of New 
 York, regardless of the duty which they owed to their oppressed coun- 
 
iOO HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 try, had some of them gone over to -ciad put themselves under the pro- 
 tection of the armies of the king, and others had conducted themselves 
 in such a neutral or equivocal manner as had justly rendered them sus- 
 pected of disaffection to the freedom and independence of this state ; 
 and that it would be inconsistent with the welfare of this state that 
 such persons should be allowed to plead and practice in any courts 
 within the same ; and the constitution of this state having subjected 
 to the rules and orders of the Supreme Court only such attorneys, 
 solicitors, and counsellors-at-law as should thereafter be appointed, the 
 act suspended all licenses to plead or practice granted to attorneys, 
 solicitors, and counsellors-at-law before the 21st day of April, in the 
 first year of the independence of the state. 
 
 The act also provided that persons so suspended were entitled to 
 have a writ of inquiry, into their political character issued to the sheriff 
 of the county. The sheriff thereupon summoned a jury, who was 
 directed to inquire whether the person suspended had uniformly and 
 consistently conducted himself as a good and zealous friend of the 
 American cause. If it appeared that he had so conducted himself, he was 
 restored to his full privileges as an attorney, solicitor, and counsellor- 
 at-law. This act was modified somewhat by Chapter 13 of the laws of 
 the fifth session, so that the attorney-general was entitled to notice of 
 the time and place of the execution of the writ of inquiry. 
 
 But while many lawyers sided with the crown, we must not forget 
 the debt of gratitude we owe to those patriotic lawyers who risked 
 their lives and fortunes on the side of the colony. To Livingston and 
 Jay, to Scott and Benson, to Yates and Morris, we owe the first consti- 
 tution of the state, and some of them assisted in drafting the Declara- 
 tion of Independence and the Articles of Confederation. In fact no 
 state made as many sacrifices in the cause of free government during 
 the Kevolution as did the State of New York, and the lawyers of the 
 state were not behind the rest of their fellow-citizens. 
 
 The constitution or plan of government adopted on the 20th day of 
 April, 1777, did not in set terms create the Court of Chancery or the 
 Supreme Court, or in fact any other court ; it simply recognized cer- 
 tain courts as then existing. For instance, it provided that the gover- 
 nor for the time being, the chancellor, and the judges of the Supreme 
 Court, or any two of them, should constitute a council of revision to 
 revise all laws passed by the legislature. It also provided that the 
 chancellor and judges of the Supreme Court should not at the same 
 time hold any other offices excepting that of delegate to the general con- 
 gress on special occasions, and that the first judges of the County Court 
 in the several counties should not at the same time hold any other 
 office except that of senator or delegate to the general congress ; but if 
 the chancellor or any other of said judges should be elected or 
 appointed to any other office excepting as above excepted, it should 
 be his option in which to serve. It also provided that the register and 
 
HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 101 
 
 clerks in chancery should be appointed by the chancellor ; the clerks 
 in the Supreme Court by the judges of said court ; the clerk of the 
 Court of Probate by the judge of said court, and the register and 
 marshal of the Court of Admiralty by the judge of the Court of Ad- 
 miralty. Said officers were to continue in office during the pleasure of 
 those by whom they were appointed. 
 
 The only new court that was created by this constitution was the 
 Court for the Trial of Impeachments and Correction of Errors, under 
 
 Monday, July -a, 1781; 
 
 N E W-Y ORK 
 
 AND 
 
 WEEKLY 
 
 Containing tit carlitS aDDlccn 
 
 THE 
 
 [No. icti] 
 
 GAZETTE: 
 
 THE 
 
 MERCURY. 
 
 jFoteign ano tDomcflicft 
 
 & Printed by HUGH GAINE, at the BIBLff and CROWN,, is HANtfVBR-SQJJARE. 
 
 READ: 
 
 G S I Z B 
 
 FLOS* at 4l..p*rCtnf. 
 
 PubliQied September 10. 1780. 
 . mite LOAF, of the Knelt FLOOR, 
 V u> weigh lib. for 1 6 Coppm. 
 
 HIOH.WATU 
 t n 1 * ' 
 
 Monday. *i Min, alter li : 
 
 Toe r d=), 57 Min. arm ]*' 
 
 Wednesday, 37 Min. a/rer 1 
 
 I Tburfday, 14 Min.aSi*' » i 
 
 it N E W-Y ORK. 
 
 Friday. 55 Mfn, alter 
 SHbrc»T,ii Min. ilm 
 _S"nHir- it Mm. a*-~ 
 Full Quarter ih. iith* 
 
 PRICE 
 
 WV.i per BbJhW". «S»l od.rMu'to*S- 
 
 Float, 70.. Oct. Single rt< 
 
 Browo.Brrad. ini> 'od. MolafTn, 
 
 , We'Q. India Rom, -51. jfd M ««' p« 
 
 ")«»-Eot'l«iHd». 4*. euUPo.k, 
 
 rrtht, rtiNftw. 
 
 YORK. 
 
 Ort. C-.»r(r Salt, 
 CdJtiKliin Corn per Bn, 
 od'Coftrr, 
 >et,|ciioto1*te, «o 
 
 By Hit EXCELLENCY 
 
 Sir TIENR.Y CLINTON, 
 
 Knltbt of tkeMon H.noar.Me Order of the BAT.H, 
 Generri ud CoShh.b<!h if Cbief of ill hi. .Mijefty. 
 Foreei «ithin.(he Colo-iei l>i«g 00 the Atl.ntie Oee.o 
 
 bn Nori-S^ti. io WeB-Floridi, fmlnB.e, *e. *e, 
 
 PROCLAMATION. 
 
 WHEREAS there areftveril Deferten fcoai thr. 
 BiiiiSi end Fareipi T.oopi unde. mi CoennMOd, 
 who ire fernitf with tbe £01017, « »" "Ke.kd in Ibt 
 Rebel Coanln i I h.Te ibo-lhijliat iff" lh» mi Pre- 
 el.nu.W, offuioe .free mi rnilimuri P.rton ."0..1I 
 fueh Dcfcrien. who (bill (orrennef ibemftliei le iny«f 
 hii M.leflj'i Ttoopi kefon ihi fiill Djj of Janr "«■■ 
 
 AW where.. *er* .re nun, 0IV1. Mijefl,-. Eu.o^iJ 
 SobieithU thii J!"* f«"io» In tbj Rebel A«o| •»■">» 
 the i" K.me ind Country, who, Sunt; with Remorfe, lod 
 ftoLb't of liw-Rdooufnefurf f«h »» 0nnltu.1l Pre.. 
 eiediDp, would be mieu 10 relum 10 ibeir Aliejunte, 
 dHdnottheii Dementi, befoee tbeir Anml In Amiilu, 
 ■sike them dmbi(»l "f meetine with P.or.Oioo it<t 
 Support within Ibefs Ci«>. I Jo tW'ote hejtbj ore-. 
 tnife to ill foth who Hull <ome in r-eferc the «bo« ""«" 
 timed firfl DiJ of >" t78i,in .ddUi.n tolbe B-nrnrr, 
 PronOLoo>ndS«p(toit,to whitb they. 
 
 ifijcrt]'* ouQ eradoDi P< 
 fooi (Mntdtr eeeepied) »l 
 t jilii of, provided the| wi 
 •3d glee their ABidancc 1 
 Bullion ■["6(1 bi- Con 
 
 tbe ttnlb Di( «{ rtj"i 
 
 r f« ih 
 
 h (hij 
 
 . jIIF. 
 
 
 thi* ^aelliac ibii ouoiimil 
 ud gluten, \a Ne»-Vo:k, 
 
 H.'CLINT0N. 
 
 General Pardon. 
 
 .f.E.eellentiHe.m WilHELMVon Kmyh 
 
 ■ en, General L-eu 1 
 Cnef tet-«- 
 
 Jjie.Htn Otlienflen Ai r ».— r 1 
 
 H.Ulfche. 'Trouppen, R»rteri der« Foeifllich 
 
 Heffifrhen O'de e. tit. e<e^ . 
 
 « LLF.N ami j-Jen .on dentn Fii;t-I.- 
 
 fc fehen Trc 
 It BCiScieri 1 
 
 . Nun 
 
 <0 beXETT for t went, one j.ir. 'from rite e;ih 
 Ma.eb lilt, ■ 1^)T of ivcntj-flnc urei -f ,o«J 
 "lu,h„b pofulLe-- -illitnm.iiuit. -'-en'*™, fito- 
 eir Gr.rni,i t h on the,lD.nd ol N.--Vork. .bi.oo 
 remarkiblf lioe (print of wmter. T»o fid'r of thii 
 ■ ' «filj bf'in- 
 
 if [and c, 
 
 i p^... 
 
 ie.fr It 
 
 ]. H.rmu-Swiue, -hai. .» p --r.nl 
 Ai a 1 preftenee.li juoiBit-d, tha 
 
 u -ill he „.rff. rd. 
 
 JOHN PELL. 
 
 At No. 191, Qo ten -Arret, near R- Lm.i)'!.]!,,., 
 
 has for sale, 
 
 R* the liO veffefi fr' m England aiid [relud, 
 
 A Oj>>n'iivofnewmrt. Pmi wine, 
 J^L REEF ami PORK., G-een a-d Bohei 0»t, 
 
 in linpi, bineli and Black Wppei, 
 
 hill hm-V ChocnUre, 
 
 F.efli fgneifinrfloiif. Paving eaitfl, 
 
 Muuld mil dip' canJlt., Ohm, . -> 
 Red l..m» r .. in hsr.da Canen. I 
 
 >nihillb-. t TT , i, f.A <•«,»!«, Mob 
 
 BnR'ifb >fld Anidicin ti^k>m, | 
 
 hame, iW.'n,:., - 
 
 Whiirw,-, ,; W[ ,., /ie.,4 diffir 
 
 P.f 'anjiuti ju keei, 1 MuSa d I. <-le 
 Neattdiltn, I ihi, 
 
 Loif, pourdct and brooro O' ' <•■ "It, 
 
 Suga,, r.,»rw, 
 
 Tu.r-Tnine. and Cariile _» rl^i 
 
 JOHN HOULROYD; 
 
 FORMERLY .nit.bi-rp.i' .-• >he rm.il.hi., 
 "HenipiKid Pl-in F . .em.m hitfi.ie.e ii.ir.ki.io 
 me pn,ile..rtn uf ihe Army md N"T- ■<" < ,l,c Pu& ' 
 lick- in general, rm hen p.11 fi.oun 1 and bcptleaie 
 to inform ibrm.tliat he oai opeoe/I a haute at F.ulh- 
 in^.tar llieir r.cepiinn, wberc ihr Puhlic in r^aneial 
 
 and hnrfe, at thr Ci n r.1 ill, QUEEN'. HEAD, bv 
 thi P.ihliclt'i tiomme teiflni, 
 
 JOH N HYHJLROVD. 
 
 A rimarkahl, Curt ftrjnmti bf MerUamti Drtfi 
 mMhnaiialid bj (if Ctfgt Armiiagi, Bati: •/ 
 SirtUt,-HaU, in ibtifojl RiJug ia tli 'Jiwuj T.rk. 
 
 7- Mr, NORTON, &urgiw,G*Un-Squart, Larvbrr. 
 
 j 7 ;.' 
 
 .1 v ' 
 
 to bo II lea. 
 
 <k-K-. 
 
 Cluur-eftrr- ■ 
 
 Cbtlhiit 
 
 ]lMlp-d«erev 
 
 -ippmj paptr, 
 Wnnrg.diit.»s-*t 
 3 barrel., iDnedo-lfifh, 
 
 Alfo ■ quantity of iicitrmr 
 
 New ROSE BUTTER. 
 
 Coffee 
 
 ALEXAN.tJER ap4. MU-LIiR, 
 
 L r 
 
 in cafea of eijhr Joieo tacn. 
 
 /iitrfkonieiiTt anctbtr in ttb?}U,fi'vt 
 'im kit rtqbi/dt JSvt in Hi rrghl Jbeul 'ir, Jim in bii 
 rigil leg hkJ tin "vir bj) 'rjl ijt, altitjuatlj at lifgr \ 
 a eo't'oBi-ri tnn -u-iib . ■wilrr.t iofiamtiuiim -aLnb 
 dlfinvrJ bim sj iht ufi 0; it ; ajlrr inking tiui/x 
 fitlli-g bottl" Ibi Mifi.mmn)i B t*hu inrt /utf-t', 
 
 ''if, anJ 01 ih Stmt bt haJ lain In bi luai fr/r 1/ 
 •r,J, ait ha, nmuhti Villi tyir/inet. Tlu curt 
 iBitffeJldlHlbtjiar 1775,' 
 
 » s ri /r-yir/i, 0S0. 
 
 Tbift Drift Mikity erailit/iiftEr!tt">{y, tbifiar- 
 ■Vjt iUprejtraliiri, Ifgt bliUbu Bt- bull, 'third!, 
 JSJIuldi, pilei.fimpl/JJoirt, ling comtiimtd infitmmti' 
 ti*K*£-4il r-*xMtr±=3£Xit. Zl.'^f-I- -5'tjfcr, J\S'- 
 
 O'tfingjrum a Jtnlnr/i y Ibt bleed. Ihij pcr},Q Jj. 
 ■ge/lun, ttmaxjtgly cnat an aff elite, e«J s3 ai a 
 rlfliratitu tall* mijl ridmeJ inijlilutiin, tbry maj 
 bi late* in anj /lofiit, viiibiui lie /toft tmfinitwit, 
 danger if talebt*t eeld, irblniicnce'e] bu/miji; tie 
 
 FTii mnfl Ser«nt> ff 'ghnel (he LitrdpraT*' of 
 ttrffe bti been pleafet] to confer the order of 
 *W U V&RTU MILfTAiRS, 
 O. 
 ORDER e/ MERIT, 
 On the following Officers, tit, 
 ■Major General c!« Kanblaocb, 
 Colonel de Seiti, 
 Coluoel <& Boaaii, 
 Colonel de WrHerharjcB, 
 Colonel de Romrod, 
 Colonel de ICeadell. 
 Ccolonel de CochenbaorO- 
 Colonel Coth'enhaufaD i> 1 p polo led to tire 
 tommand of tbe regiment Prince HeredJlairrt 
 Lieuienant-Colooe] dt Bay. ii appointed 
 Quarter Mailer General. 
 
 MajorGeneral.de Lofterg and tl* BoTc, 10 
 be Lieutenant Gbnerila. 
 
 CapuLn Voti AlicnUx'koniv of Geo. Lof- 
 berg, fet). to be Major of (he faid lorpa. 
 
 marched about 4 mi lei to the Hobfe of Daniel 
 Kiirim.Efq; which they cnle;cd, jnd.toot off 
 Major Kiflairi.of Q^een't county militii, Ji ■ 
 yoonficr brother Berjam'in TteJatll KilTuxtir, 
 and Thomas PearfaM, a refugee. Mi. Fiict. 
 the commanding Officer of rhe party, behaved 
 with great civility, to Mn. K.lT.m, not fgtr CI . 
 ing hit men 1ft g° ***° '" e r^jotn v/hjte.-lw oao* 
 dtrttccd Mr.. TowolLcid. an old I id k. too- 
 ther to Jullice KifTaoi. *« in bed. The pUn- 
 der" they carried oiFavai but itilli-p-. IXf 
 ■ '..fo-twuli wirK tfi' n cue (Tl xancer flj:iri: 
 whom they found v flee ping uoder a tiee near 
 whete they lanced. ^ Jaft.ee K.lf.tn and his 
 fon W(re abletit .' 'Oj Jionir at Uui. limei T" 
 : rebel) .made narttca1al«r>^ai-y alter ititnnS 
 i Exireia »fa.lmy fitm Ckt'ttjlt*/*-, ewror, 
 
 la it* Ribil G.neral GittrCtfxiJtm riim'y it,m 
 
 rules that should be established by the legislature, which court should 
 consist of the president of the senate, senators, chancellor and judges 
 of the Supreme Court, or the major part of them, except that when an 
 impeachment should be presented against the chancellor or either of 
 the judges of the Supreme Court, the person so impeached should be 
 suspended from exercising his office until acquitted, and in like 
 manner when an appeal from a decree in equity should be heard the 
 chancellor should inform the court of the reasons for his decree, but 
 
102 HISTORY OP THE BENCH AND BAE OF NEW YOKE 
 
 should not have a voice in the final judgment, and if the cause to be 
 determined should be brought by a writ of error on a question of law on 
 a judgment in the Supreme Court, the judges of that court should 
 assign the reason of their judgment, but should not have a voice in its 
 affirmance or reversal. 
 
 The power of impeachment of officers of the state for mal and 
 corrupt conduct was vested in the representatives of the people in 
 assembly. 
 
 Section 34 provides that in every trial on impeachment, or in- 
 dictment for crimes or misdemeanors, the party impeached or indicted 
 shall be allowed counsel as in civil causes. 
 
 One of the most important sections is the 35th, which provides that 
 such parts of the common law and statute law of New York and Great 
 Britain, and of the acts of the legislature of the Colony of New York, 
 as together did form the law of the colony on the 19th day of April, 
 1775, shall be and continue the law of this state, subject to such limita- 
 tion and provision as the legislature of this state shall make con- 
 cerning the same ; that such of said acts as are temporary shall expire 
 at the times limited for their duration respectively, and that the 
 resolves or resolutions of the Colony of New York, and of the con- 
 vention of the State of New York, then in force and not repugnant, 
 shall be considered as making parts of the laws of this state, subject 
 nevertheless to such laws and provisions as the legislature of the state 
 shall make concerning the same. 
 
 The 41st section provides that the trial by jury in all cases in 
 which it had been used in the Colony of New York shall be estab- 
 lished and remain inviolate forever ; that no acts of attainder shall 
 be passed by the legislature of the state for crimes other than those 
 committed before the termination of the late war ; that such acts 
 shall not work a corruption of blood, and that the legislature of the 
 state shall at no time institute any new court or courts but such as 
 shall proceed according to the course of the common law. 
 
 It may be noted that the " constitution or plan of government " 
 was adopted Sunday, April 20, 1777, by the delegates of the provincial 
 convention. On the same day Mr. Robert R. Livingston, General 
 Scott, Mr. Morris, Mr. R. Yates, Mr. Jay, and Mr. Hobart were ap- 
 pointed a committee to prepare and report a plan for organizing and 
 establishing the government agreed to by the convention. On the 8th 
 of May this plan was finished and adopted. 
 
 It appointed Robert R. Livingston, chancellor ; John Jay, chief- 
 justice ; Robert Yates and John Sloss Hobart, puisne judges of the 
 Supreme Court, and Egbert Benson, attorney-general of the state. It 
 also appointed Volkert P. Douw, first judge, and Jacon TenEyck, 
 Abraham TenBroeck, Henry Bleeker, Walter Livingston, and John 
 H. TenEyck, judges of the County of Albany, Henry I. Warden, 
 sheriff, and Leonard Gansevoort, clerk of said county ; Ephraim Paine, 
 
HISTORY OF THE BENCH AND BAB OF NEW TOKK 
 
 103 
 
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104 HISTORY OF THE BENCH AND BAE OF NEW YORK 
 
 first judge, and Zephaniah Piatt and Anthony Hoffman, the other 
 judges for the County of Dutchess, Melancthon Smith, sheriff, and 
 Henry Livingston, clerk of said county ; Lewis Morris, first judge, and 
 Stephen Ward and Joseph Strang, the other judges for the County 
 of Westchester, John Thomas, sheriff, and John Bartow, clerk of 
 said county ; Levi Pawling, first judge, and Dirck Wynkoop, Jr., 
 judge for the County of Ulster, Egbert Dumond, sheriff, and George 
 Clinton, clerk of said county ; and William Duer, first judge, 
 and John Williams and William Marsh, the other judges for the 
 County of Charlotte, Edward Savage, sheriff, and Ebenezer Clarke, 
 clerk of said county. No judges were appointed for the counties of 
 Tryon, Orange, Cumberland, and Gloucester, but blanks were left in 
 which the names of the judges for these counties could be inserted. 
 No provision was made for the appointment of judges in the counties 
 of New York, Kings, Queens, Suffolk, and Richmond, which counties 
 were then in the possession of the British. 
 
 The persons above named were chosen by the delegates to the con- 
 vention some time prior to the 8th of May. There were two candidates 
 for the office of chancellor, General Scott and Robert R. Livingston. 
 General Scott received eight votes from New York, four from Suffolk, 
 and three from Orange, fifteen in all, while Mr. Livingston received 
 six votes from Albany, five from Dutchess, four from Westchester, 
 four from Ulster, and two from Charlotte, twenty-one in all, whereupon 
 he was declared elected chancellor. General Scott received the same 
 votes for the office of chief -justice, and in addition one vote from the 
 county of Charlotte. Mr. Jay, who was elected to the position of 
 chief -justice, received Mr. Livingston's vote, except that Charlotte 
 county gave him but one vote. 
 
 There were three candidates to fill the two puisne judgeships. 
 Mr. Yates received all the votes, Mr. Hobart received five votes from 
 Dutchess county, and General Scott received all the 
 votes from the other counties. General Scott im- 
 mediately signified his disinclination to execute the 
 office of one of the puisne judges, and, refusing to ac- 
 cept the office, Mr. Hobart was elected. The same 
 day Mr. Benson was elected attorney-general. Four 
 of the six members of the committee to prepare the 
 ™* tobk^offeb pi an received offices. The judicial machinery of the 
 State of New York was now in working order. 
 On the 5th of May the house elected the judges for Albany 
 county ; on the 6th the judges of Dutchess, Westchester, and Ulster 
 counties. The salaries of the judicial officers of the state varied from 
 time to time. Chapter 35 of the laws of 1778 fixed the salary of the 
 chancellor for his services in that station, " from the 22d day of May 
 last until the first Monday of July next, exclusive of the time inter- 
 vening between the 17th day of September and the 20th day of 
 
HISTORY OF THE BENCH AND BAE OF NEW YORK 
 
 105 
 
 October last," at the rate of £300 per annum. The salary of the chief- 
 justice was fixed at the same rate, and that of the puisne judges at the 
 rate of £200 per annum. In addition to the above-mentioned sum, the 
 chief-justice and the puisne judges received the sum of forty shillings 
 each for each and every day they attended on commissions of Oyer 
 and Terminer and general gaol delivery in the several counties, 
 and for each and every day they were traveling for that purpose. 
 Chapter 31, passed on the 25th of October, 1779, gave Yates and 
 Hobart, "for extraordinary duties and service in his office from the 
 5th day of July last, and in consideration of the advanced prices of 
 the necessaries of life, the sum of $1,000 " each. 
 
 Chapter 34 of the Laws of 1779 gave the. chancellor £400 per 
 annum, the chief justice £400, and each of the puisne judges £300 
 per annum. The chief -justice and the puisne judges also received the 
 
 , ■ ■ ■ — — — sg^mwsrFKp? 
 
 [ VIEW OP NEW YORK FROM REAR OP COLONEL RUTGERS' \Ji<o.<)f\ 'm-^'tf St"' 
 HOUSE, 1776. " — " 
 
 sum of $10 for each day they attended on the execution of commis- 
 sions of Oyer and Terminer and general gaol delivery, and each day 
 they travelled for that purpose. These salaries were changed but little 
 until 1813, when an act (Chapter 238) was passed which gave the chan- 
 cellor, the chief -justice, and the judges each a salary of $3,500. 
 
 In addition to their salary, the chancellor and judges were entitled 
 to receive certain fees, which varied from time to time. As an instance 
 of the fees received, I quote from an act passed the 18th of April, 1785. 
 
 The chancellor was entitled to receive for the seal to every com- 
 mon writ, three shillings ; for exemplifications, twenty shillings ; for 
 every decree, £2 ; for every opinion or order, on a petition or motion, 
 twenty shillings ; for every order appointing a guardian, ten shillings. 
 The master in chancery was entitled to receive three shillings for every 
 summons ; £1 for every report or certificate made pursuant to order ; 
 five shillings for every certificate or report made upon petition or 
 motion, and for drawing every report, one shilling per sheet. The 
 
106 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 judges of the Supreme Court received for allowing a writ of error or 
 marking the roll that the writ is allowed, five shillings ; for signing 
 every writ of privilege, habeas corpus, procedendo, certiorari, or pro- 
 hibition, three shillings ; for acknowledging a deed, four shillings ; 
 for licensing an attorney, ten shillings ; taxing a bill of costs, six 
 shillings ; and every attorney, when admitted, paid to the judges who 
 were present ten shillings. The judges attending were also paid five 
 shillings on the first motion in every cause, except a criminal one, 
 which money was divided among them. 
 
 The first act relating to the revision of the laws of this State was 
 passed on the 15th day of April, 1786. The preamble of the act calls 
 attention to the declaration in the constitution of the state that cer- 
 tain parts of the law of England and the Colony of New York con- 
 tinued to be the law of this state, and that " such of said statutes as 
 have been generally supposed to extend to the late Colony of New 
 York and to this state are contained in a great number of volumes, 
 and such statutes, as well as the acts of the legislature of the late 
 colony, are conceived in a style and language improper to appear in 
 the statute-books of this state." It directed Samuel Jones and Richard 
 Varick to collect and reduce into proper form, under certain heads or 
 titles of bills, all the statute laws of England referred to in the con- 
 stitution, and all public acts of the late .colony, which then remained 
 in force, and to lay the same before the legislature, from time to time, 
 in order that such of them as should be approved 
 by the legislature might be re-enacted into laws o| 
 this state, " to the extent that when the same shall 
 be completed, then and from thenceforth none of 
 the statutes of England or of Great Britain shall 
 operate or be considered as laws of this state.' ' The 
 act further provided that after this had been done, 
 a compilation of all the laws in force should be 
 ™™*, 7™ made and printed, except that only the titles of ob- 
 solete acts should be printed. It gave the com- 
 pilers two years in which to do the work, and allowed each a yearly 
 salary of £400. The book was printed in 1789 in two volumes folio. 
 
 The next statute relating to the revision of the law was passed on 
 the 28th day of March, 1800. It appointed James Kent and Jacob 
 Radcliffe commissioners for such purpose, and directed them to collect 
 and reduce into one act all parts of acts relating to the same subject ; 
 to omit therefrom any part or parts of acts that have been repealed, or 
 had expired by their own limitation, and to transcribe all such acts or 
 parts of acts and lay the same before the legislature from time to time, 
 as they are prepared, to be re-enacted as the legislature should think 
 proper. Two years were given to them in which to do the work, and 
 an allowance of $1,000 each was made for their services. 
 
 It is evident that the commissioners immediately went to work, 
 
HISTOEY OF THE BENCH AND BAE OE NEW TOEK 
 
 107 
 
 because the acts passed at the next (twenty- sixth) session of the legis- 
 lature took up as much space as all those passed at the three or four 
 preceding sessions, and embraced matters relating to the granting of 
 letters of administration, writs of error, habeas corpus, the Court of 
 Oyer and Terminer, the Court of Impeachment, the Supreme Court, 
 trial of issues, and writs of certiorari. 
 
 Chapter 194 of the Laws of 1801 (twenty-fourth session) also 
 authorized Kent and Kadcliffe to print the Laws of 1801, and gave to 
 each of them, for his services in reference to the same, the sum of $850. 
 
 £lve*;. i^e^ &tw &m^ 6^-/& said. ffi^A. 
 
 $tu)kfa*6te*u&tf]^Jhc&a^ df 
 
 TUrtH 
 
 tuxsc, 
 
 SIGNATURES OF PROMINENT LAWYERS AND OTHERS. 
 
 The revision of Kent and Eadcliffe was printed in 1802 in two 
 volumes octavo. 
 
 The third revision was made by William P. VanNess and John 
 Woodworth, pursuant to Chapter 150 of the Laws of 1811. It is con- 
 tained in two volumes octavo, printed in 1813. 
 
 The next and last revision was made under Chapter 324 of the 
 Laws of 1825, Chapter 9 of the Laws of 1827, and Chapter 321 of the 
 Laws of 1828. The act of 1825 authorized John Duer, Benjamin F. 
 Butler, and Henry Wheaton to make, collate, and revise certain acts 
 
108 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 of the legislature. Mr. Wheaton, upon being appointed charge 
 d'affaires of the United States to the court of Denmark, in 1827, 
 resigned his office of commissioner, and Governor DeWitt Clinton 
 appointed John C. Spencer in his place. To those three men, Duer, 
 Butler, and Spencer, we owe a revision of the statute law of the state 
 that has lasted from 1827-8 to the present time. 
 
 There were two revisions of the laws prior to the adoption of the 
 constitution of 1777, one made by "William Livingston and William 
 Smith, pursuant to an act passed in 1751, and the other made by Peter 
 Van Schack, pursuant to an act passed on the 24th of March, 1772. 
 Van Schaack's revision was printed by Hugh Gaine, in two volumes 
 folio, although it has the pagination of one volume. The reviser was 
 paid £250 for his work, and the printer twenty shillings for printing 
 each sheet. Taking it altogether, it makes a very presentable book. 
 
 The earliest record relating to the Court of Chancery that I can 
 find is the book of "Chancery Minutes, June, 1785, to April, 1789." 
 The court was held at the City Hall in the City of New York. The 
 first record is dated June 10, 1785, and is in the cause of Thomas Vardill 
 vs. Lambert Moore. Mr. Lewis appeared for the "complainant" and 
 Mr. Troup for the defendant. In the next cause Mr. B. Livingston 
 appeared for one side and Mr. Hamilton for the other. Six matters 
 came before the court on that day. The counsel that appeared, besides 
 those above mentioned, were Mr. Cozine and Mr. Dunscomb ; Mr. 
 Burr had a cause in court the next day. On the 28th of June, the 
 court was held at Claremont, manor of Livingston. On the 28th and 
 29th days of July it was held at the court-house in 
 the City of Albany, where Mr. Lansing, Mr. Cook, 
 Mr. B. Livingston, Mr. Troup, Mr. Lush, Mr. Benson, 
 Mr. Burr, and Mr. Lewis appeared as counsel. On 
 the 17th day of August, court was again held at 
 Claremont, but it was back in New York on the 1st 
 day of October, on which day the only business 
 transacted was a motion by Mr. Lewis of counsel 
 "token," 1787. tor complainant in the cause of Connor vs. Smith 
 
 that " publication pass " on the 8th day of October 
 and Mr. B. Livingston of counsel for defendant consenting, the motion 
 was granted. On the 11th day of November, 1785, it was ordered 
 that Edward Livingston, one of the attorneys of the Supreme Court, 
 be examined by Mr. Lewis and Mr. B. Livingston as to his qualifi- 
 cations for admission as a solicitor in chancery. On the 24th day 
 of April, 1786, they reported that they had examined him and found, 
 him of sufficient ability to practice as solicitor and counsel in the 
 court, and he was accordingly admitted as such. On the 7th day 
 of December, 1785, at a "court of chancery held at the chancellor's 
 chambers in the city of New York," the chancellor "ordered Mr. 
 John Lansing to transmit to the register of the court such of the 
 
 NEW YORK COJ'PER 
 
HISTORY OF THE BENCH AND BAE OE NEW YORK 109 
 
 rules of this court as were in his possession, together with all other 
 papers belonging to the court." A court of chancery was held on the 
 17th day of March, 1786, befoie the chancellor, the chief-justice of the 
 Supreme Court, Richard Morris, and John Sloss Hobart, judge. The 
 case of John Mannsell et al. ads. Deborah Smith was before the court. 
 The entry in the book is as follows : " this day after debate by Mr. 
 Burr and Mr. Hamilton of counsel for defendants, and Mr. B. Living- 
 ston of counsel for complainants, respecting interest to be allowed 
 during the war, the Court takes time to consider until Friday next." 
 The same court met on the 24th of March, and the chancellor, " after 
 full argument and mature deliberation," decided that there should be 
 no allowance of interest from July 7, 1776, to January 1, 1784. The 
 cause appears to have been one to recover the interest on a legacy of 
 £1,000 from July 7, 1767. 
 
 Johnson, in the preface to the first volume of his Chancery Reports, 
 says that little business was transacted in the Court of Chancery prior 
 to its organization in March, 1778, under the constitution of the state. 
 I have caused a very careful examination of the records and books in 
 the office of the clerk of the City and County of New York to be made, 
 and have succeeded in finding but one book of records prior to the 
 Revolution, and that is the minutes of the court from April 5, 1770, to 
 January 9, 1776. I do not think that any business was transacted in the 
 court during the Revolution. New York City was in possession of the 
 British from September 16, 1776, to November 25, 1783, and it is said 
 that when they left the city they took with them all the records of the 
 Court of Chancery and of the Supreme Court. 
 Our first chancellor, Livingston, could not have 
 done much court work prior to the evacuation 
 because of the state of the country, and also be- 
 cause much of the time he was otherwise engaged. 
 For instance, he was secretary of foreign affairs 
 for the United States in 1781-3. At any rate, the 
 first record of his holding court that I have been new yokk copper " token," 
 able to find is contained in the Book of " Minutes 1794 - 
 
 of the Court of Chancery " above referred to. An examination of the 
 last Book of Minutes of the Colonial Court of Chancery and of the 
 first Book of Minutes of the state court shows that the business in 
 the two courts was about the same. Most of it related to infants and 
 lunatics. 
 
 I have been able to find but one " opinion " in the two books, and 
 that is an opinion by Governor Tryon in the case of the Reverend 
 Joshua Bloomer vs. Robert Hinchman and Phillip Edsall. The cause 
 came before the court on the 2d day of November, 1771, on which 
 day Mr. Scott of counsel for the defendants argued in support of a 
 demurrer, and Mr. Kempe of counsel for the complainant asked a 
 further day to answer. On the 25th day of the same month the court 
 
110 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 heard " in part " the argument of counsel for the complainant against 
 the demurrer ; the next day complainant's counsel finished his argu- 
 ment, and on the 16th of May defendants' counsel was heard in reply, 
 and the court ordered that the demurrer be overruled, and that the 
 defendants give a fuller answer. Certain other proceedings were had 
 in the cause. On March 3, 1774, Mr. Duane of counsel for the com- 
 plainant was ordered to deliver to the defendants' counsel notes of his 
 argument within ten days, and defendants' counsel were directed to 
 deliver notes of their argument to complainant's counsel within ten 
 days thereafter, and the cause be " finally heard the next term." 
 
 The cause was heard on the fourth of April, 1774, and on the fifth 
 of the same month the court rendered the following opinion, viz. : 
 
 New York Court of Chancery, 
 5th April, 1774. 
 
 I have had the case between Mr. Bloomer, minister and the Church Wardens 
 of the Parish of Jamaica, long under consideration and have reviewed it with all 
 the deliberation which its importance required. 
 
 To me it appears clear from the authorities produced and arguments advanced 
 in the hearing of the cause, that the National Church of England is established 
 within this Colony. That the Provision by the Ministry Acts in question was 
 intended and can only be applied for the support of the Clergy of that Church, and 
 that in case of a Lapse, the Governor by virtue of his delegated authority from the 
 Crown, as well as by the terms of the Acts themselves, has a right to collate ; upon 
 these principles in general, I am of opinion that Mr. Bloomer is duly collated and 
 inducted to the care of the Parish of Jamaica. That his title is well established and 
 that he is the lawful incumbent. 
 
 I do therefore decree that the defendants shall on or before the fourth day of 
 June next, at the door of the Parish Church of Jamaica, and between the hours of 
 ten and twelve, in the forenoon, pay Mr. Bloomer his salary from the time of his 
 Induction on the 23rd day of May 1769 to the commencement of his suit in this 
 Court, out of any monies that may have accrued under the Ministry Act and have 
 been received by the defendants as Church "Wardens, prior to the filing of the Bill, 
 but without any interest. 
 
 It appears from the answer that the defendants according to the advice of their 
 counsel were in doubt of the validity of Mr. Bloomer's title and there having hith- 
 erto been no judicial determination upon the point, I do not think it reasonable to 
 order them to pay the costs, which therefore, must be sustained by the respective 
 parties, and as to the salary which has accrued to Mr. Bloomer since filing the Bill, 
 it can not properly be comprehended in this Decree; but I however do recommend 
 it to the Parish of Jamaica to pay all arrears of salary to the Eev. Mr. Bloomer that 
 are due to him since the filing of the Bill, as any delay or further dispute would 
 justly subject them to the payment of costs. WILLIAM TRYON 
 
 The last entry contained in this book is of an application made 
 before "His Excellency William Tryon, Esq., Captain General and 
 Governor in Chief in and over the Province of New York and the Ter- 
 ritory depending thereon in America, Chancellor and Vice- Admiral of 
 the same," for the appointment of a guardian for two infants, on the 
 9th day of January, 1776. The new book of " Minutes " begins, as we 
 have seen, on the 10th of June, 1785. 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 111 
 
 The Court of Chancery was not organized by the convention of 
 representatives of the State of New York until May, 1778, although 
 Livingston had been appointed chancellor as early as 1777. The first 
 rules relating to the court were made by Chancellor Livingston in 1787, 
 and are to be found in Vol. 3, Minutes of Chancery. He served until 
 October, 1801, when he resigned upon his being appointed minister to 
 France. I have not been able to find any of his opinions as chancellor. 
 He was succeeded by John Lansing, Jr., who was chief -justice of the 
 Supreme Court at the time he received the appointment of chancellor. 
 Chancellor Lansing served until October, 1814, when he was succeeded 
 
 MEW-YORK EVENING POST. 
 
 MOHDAr, NOVEMBER m.'IBOl 
 
 'Jfo. 40, ftfie-SlruL 
 
 PAC-SIMILE OF ORIGINAL ISSUE. 1 
 
 by James Kent, because he was no longer eligible by reason of age. He 
 mysteriously disappeared in 1829. He left his hotel to post a letter on 
 board the Albany boat at the foot of Cortlandt street and never was 
 heard of afterward. The Evening Post of December 24, 1829, con- 
 tained the following notice of his disappearance : 
 
 On Saturday evening', 12st inst., Chancellor Lansing of Albany arrived in this 
 city and put up at the City Hotel ; he breakfasted and dined there. Shortly after din- 
 ner he returned to his room and wrote for a short time, and about the hour that per- 
 sons intending to go to Albany 'eave the hotel, he was observed to leave his room. 
 He has not been seen or heard of since that time. He left his trunk, cane, &c. , in 
 
 1 The New York Evening Post, the first numoer of 
 which was issued November 36, 1801, was established 
 as a Federalist organ under the patronage of the emi- 
 nent lawyers, Alexander Hamilton and John Jay. The 
 
 first editor, William Coleman, was also an able lawyer, 
 and though the political ally and friend of Hamilton, 
 had formerly been the law partner of Aaron Burr. 
 
112 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 his room. His friends in this city have heard this morning from Albany that he 
 has not returned home. 
 
 It is supposed he had written a letter and intended to put it on hoard the steam- 
 boat 'that left here at five o'clock. He had made an engagement to take tea at six 
 that evening with Mr. Robert Bay of this city at 29 Marketfield Street. 
 
 He was dressed in black and wore powder in his hair. He was a large, muscu- 
 lar man, about five feet nine inches in height, and upwards of seventy-six years of 
 age. 
 
 He was in good health, and has never been affected by any mental aberration. 
 Any intelligence concerning him will be gratefully acknowledged by his afflicted 
 friends and family, if left for them at the bar of the City Hotel. 
 
 •The morning papers are requested to copy this notice. 
 
 The third chancellor, Kent, was born on the 31st day of July, 1763, 
 in what is now Putnam county, but was then Dutchess county, New 
 York. He was graduated from Yale College in the class of 1781, stud- 
 ied law with Egbert Benson, and was admitted to practice as attorney 
 in 1783 and as counsel in 1787. He was admitted as solicitor and coun- 
 sel in the Court of Chancery on the 18th day of March, 1794, on the 
 motion of Edward Livingston. The first record that I can find of him 
 in the Court of Chancery is on the 20th day of May, 1794, when he 
 appeared as solicitor for the complainant in the case of Cullen against 
 Cullen. In 1796 he was appointed master in chancery ; in 1797 re- 
 corder of the City of New York ; in 1798 he succeeded Lansing as 
 puisne judge of the Supreme Court, of which court he became chief- 
 justice in July, 1804. It is said that he was the first of the judges in 
 this state to write opinions. At any rate his are the earliest opinions 
 extant. In 1814 he succeeded Lansing as chancellor, which office he 
 filled until he reached the age of sixty years, in 1823. In 1834 he lived 
 two or three miles from the heart of the City of New York, where he 
 was visited by Charles Sumner, who remarked upon his frankness and 
 simplicity, his bad grammar in conversation, his passion for reading 
 novels, and his violent hatred of General Jackson. 
 
 He was succeeded by Nathan Sandford, who held the office for 
 four years, when he resigned on account of ill-health. The next chan- 
 cellor was Samuel Jones. Mr. Jones was a graduate of Columbia Col- 
 lege in the class of 1790. He studied law in the office of his father, 
 who was the reviser, and was successively member of assembly, re- 
 corder of the City of New York in 1823, chief -justice of the Superior 
 Court of the City of New York, 1828-47, and justice of the Supreme 
 Court of the State, 1847-9. 
 
 Chancellor Jones was succeeded by Chancellor Walworth, who 
 was the last chancellor of the state. At Saratoga Charles Sumner met 
 Chancellor Walworth and Judge Cowen. He said that they were both 
 mere book men and that Judge Oakley of the Superior Court was 
 an abler man than either. When Walworth was made chancellor he 
 delivered an address to the bar, in which he said : " In assuming the 
 duties of this highly responsible station, which at some future day 
 
HISTORY OF THE BENCH AND BAR OE NEW YORK 113 
 
 would have been the highest object of my ambition, permit me to say 
 that the solicitations of my too partial friends rather than my own 
 inclination or judgment have induced me to consent to occupy it at this 
 time. Brought up a farmer till the age of seventeen, deprived of all 
 the advantages of a classical education, and with a very limited know- 
 ledge of chancery law, I find myself, at the age of thirty-eight, sud- 
 denly and unexpectedly placed at the head of the justices of the state, 
 a situation which has heretofore been filled by the most able and ex- 
 perienced members of the profession." This address was put into 
 rhyme by a wit of the day, which rhyme I quote from memory : 
 
 At the early age of thirty-eight 
 
 I became chancellor of this great state ; 
 
 That I am chancellor is clear, 
 
 But how in Heaven got I here ? 
 
 It is said that Aaron Burr advised the chancellor not to publish 
 his address, because, " if the people read it, they will say if you knew 
 you were not qualified, why the devil did you take the office ? " It is 
 also said that the office was offered to all the judges of the Supreme 
 Court and declined by them, before it was offered to Mr. Walworth. 
 In his latter days the chancellor was a small, lean man with long, iron- 
 gray hair and beard. Although he was a teetotaler and president of 
 the American Temperance Union, Mr. Seward once said of him that he 
 and another well-known New York politician could drink more brandy 
 and water than any two other men in the State. When his attention 
 was called to the fact that the chancellor was a teetotaler and he was 
 asked to explain what he meant, he said the chancellor would drink 
 the water and the other fellow the brandy. But notwithstanding the 
 fact that the chancellor was a teetotaler, his opinion in the case of 
 Kevin against Ladue, 3 Denio 437, is a very learned one on the ques- 
 tion whether or not ale and strong beer are included in the terms 
 strong and spirituous liquors, as used in the statute making it penal 
 to sell such liquors at retail without a license. The opinion takes up 
 fourteen pages of the report, and in it the learned chancellor begins at 
 the beginning and traces beer from its earliest history to the time at 
 which he wrote. 
 
 The chancellor was fond of tracing his descent from Walworth, 
 the mayor of London, who had the little difficulty with Watt Tyler, in 
 the reign of Richard II. This fact, it is said, prevented President 
 Tyler, who claimed that he was a descendant of Watt Tyler, from ap- 
 pointing Chancellor Walworth justice of the Supreme Court of the 
 United States. When President Tyler's attention was called to the fact 
 that the chancellor claimed descent from Lord Mayor Walworth, he 
 withdrew the chancellor's name and substituted that of Samuel Nelson, 
 who was so many years on the bench of the Supreme Court of the 
 United States, 
 
114 
 
 HISTOKY OF THE BENCH AND BAR OF NEW YOKK 
 
 The constitution of 1821 authorized the governor to nominate, and 
 with the consent of the senate to appoint, masters and examiners in 
 chancery, who held their offices for three years. It also authorized 
 the chancellor to appoint a register and assistant register, who held 
 their office during the chancellor's pleasure. It is said that in 1823 
 there were 510 masters in chancery in the state and 25 examiners. In 
 1831 the office of vice-chancellor was created in the first circuit, and 
 in March, 1839, another in the eighth circuit, at which time an assistant 
 vice-chancellor was also appointed in the first circuit. The office of 
 chancellor was abolished by the constitution of 1846. 
 
 As we have seen, Jay was made chief -justice of the Supreme 
 Court, and Yates and Hobart puisne judges thereof, in 1777. Jay 
 remained chief -justice until 1779, when he was succeeded by Richard 
 
 NORTH END OP CITT HALL PARK, 1825. 
 
 Morris, who held the office for eleven years. Among others who have 
 been chief-justices of the Supreme Court, I may mention Ambrose 
 Spencer, Samuel Nelson, Greene C. Bronson, and Samuel Beardsley, 
 who was chief-justice when the constitution of 1846 took effect. 
 
 For a little while we had a High Court of Admiralty in this' state. 
 On the 25th of November, 1775, the continental congress recommended 
 the colonies to establish courts to adjudicate questions that might 
 arise relating to captures on the seas during the War of Independence, 
 and that all trials be by jury. On the 31st of July, 1776, Richard 
 Morris was appointed judge of the High Court of Admiralty of this 
 state ; John McKesson, register, and Robert Benson, marshal and 
 provost marshal. Mr. Morris declined to act as judge because his 
 family needed all his time and attention, and on the 5th day of August 
 following Lewis Graham was appointed in his place. A committee 
 was named to report what fees they thought proper to be taken by 
 the officers of the court. 
 
 Mr. Morris must have changed his mind about his family, because, 
 
HISTORY OF THE BENCH AND BAB OF JSTEW YORK 115 
 
 as we have seen, in 1779 he became chief-justice of the Supreme Court 
 of this state. 
 
 The Court of Admiralty was abolished upon the adoption of the 
 constitution of the United States, which vested admiralty jurisdiction 
 exclusively in the federal courts. 
 
 The Court for the Trial of Impeachments and the Correction of 
 Errors was organized by chapter 11 of the laws of the eighth session, 
 passed on the 23d of November, 1784. That act provided that " the 
 court shall sit during the session of the legislature on such days and 
 at such places as the court shall from time to time appoint ; that all 
 writs and proceedings shall be made in the name of the people of the 
 State of New York, and attested by the president of the senate and 
 signed by the clerk of the court ; that all impeachments shall be de- 
 livered to the president of the senate, who shall thereupon immediately 
 cause the court to be summoned, and the court shall thereupon forth- 
 with cause the person so impeached to appear and be brought before 
 it to answer the charge exhibited against him. On thus appearing he 
 shall be entitled to have a copy of 
 
 such impeachment, and have a |^*WW«^i^^^^#*?f 
 reasonable time to answer the same. I The c^^n of the o*y of 
 After issue has been joined the J^OvewTbTijroimseto^ayiiwJJeia-er 
 court shall appoint a time and fgi ' "| 
 
 place for the trial thereof." No Ig ONE I CENT. 
 
 judgment of conviction COUld be 1m JTewYork 26th Decembcr\&l\ 
 
 given unless two-thirds of the mem- |« ^ 0raer *$*J***«** ■ 
 
 bers of the court then present as- § VsCtccasioo. 
 
 sented thereto. If two-thirds of L^iSSL^SiS^SS^i^L 
 the members of the court present at ^ yobk citt ctjKRBNCT 1814 
 
 the time did not assent to a judg- 
 ment of conviction, the person; impeached was considered as acquitted 
 from such impeachment. No judgment or sentence of conviction could 
 extend further than disqualifying the person from ever holding any 
 place of honor, trust, or profit in the state. A conviction or acquittal 
 still left the person impeached subject to indictment, trial, and pun- 
 ishment according to the laws of the land. 
 
 The power of impeachment of officers of the state was vested in 
 the representatives of the people in assembly. No impeachment 
 could be ordered except with a two-thirds vote of all the members 
 present. Any officer impeached was restrained from exercising his 
 office until his acquittal. 
 
 That act also provided that all errors happening in the Court of 
 Chancery, Supreme Court, the Court of Probates, and Court of Ad- 
 miralty, except in cases of capture, should be redressed and corrected 
 by the court instituted by it. 
 
 Any person against whom any judgment was given in the Supreme 
 Court might sue forth out of the Court of Chancery a writ of error ad- 
 
116 HISTOKY OF THE BENCH AND BAE OF NEW YORK 
 
 dressed to the Supreme Court, commanding them to cause the record 
 of such judgment and all things concerning the same to be brought 
 before the president of the senate, senators, and chancellor, and full 
 power to examine all such errors was given to them, with power also 
 to reverse or affirm such judgment and to give such other judgment 
 therein as the law should require. No judgment could be entered 
 unless a quorum of the court was present, but if such quorum was not 
 present the case could be adjourned to some future day. 
 
 Any person aggrieved by any sentence, judgment, or order of the 
 Court of Chancery could appeal from the same, or any part thereof, to 
 the president of the senate for the time being, and the senators and 
 judges of the Supreme Court, and the court had power to reverse or 
 affirm said judgment, order, or decree, and make such other judgment, 
 order, or decree as equity and justice required. All appeals, except 
 those from final decrees, were required to be taken within fifteen days 
 
 next after the entry of the orders 
 
 #e 4] tour Cents. [j * Any person aggrieved by any 
 
 I **~tSE3£X'S£ '* I sentence > judgment, or decree of 
 f, ejuu demand. . o * the Court of Probates or of the 
 
 4 
 
 * 
 
 % £ FOUR *—§: CENTS. * % Court of Admiralty, except in the 
 | ^ Q * case 0± captures, could appeal from 
 
 | g "z^SffigsE?- a I the same or aQ y p art thereof to the 
 
 * fa ub/ Ycaji^/. * * P res ident of the senate for the time 
 \ — = — ' * being, senators, chancellor, and 
 
 l*N^****J^*^*^WJ - iudges of the Su P reme Court > who 
 
 had full power and authority to 
 
 NEW YORK CITY CURRENCY, 1814. r ** 
 
 examine, hear, and determine all 
 such appeals, and all matters concerning the same, and to reverse, 
 affirm, or allow such sentence, judgment, or decree, and to make such 
 other order or decree therein as equity and justice required. Appeals 
 were required to be taken within fifteen days after making or giving of 
 the sentence, judgment, order, or decree appealed from. 
 
 The act also provided that the president of the senate should have 
 a casting vote in cases of ties, but should not vote in any other case 
 whatever. All appeals from judgments or definitive sentences should 
 be brought within five years and all writs of error in civil and criminal 
 cases, not capital, should be considered writs of right and should issue 
 as of course. In capital cases writs of error were considered writs of 
 grace and did not issue except by order of the chancellor for the time 
 being, made after petition and notice to the attorney-general or prose- 
 cuting officer for the state. 
 
 The Court of Exchequer was organized by an act passed February 
 9, 1786, which empowered the junior justice of the Supreme Court, or 
 in his absence one of the puisne justices of the same court, to hold a 
 court for the hearing and determination of all causes, motions, and 
 
HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 117 
 
 things concerning fines, forfeitures, issues, amerciaments, and debts 
 due to the people of this state according to law and the course of 
 the Exchequer. This court was to be held during every term of the 
 Supreme Court or during such part thereof as should be necessary, 
 and in some convenient place near where the said Supreme Court was 
 sitting. The court had a seal, and a clerk who was appointed by the 
 justices of the Supreme Court. The justice who was holding the court 
 was not allowed to receive any fees for any services, " his salary and 
 fees as justice of the Supreme. Court being considered as full compen- 
 sation for the services as aforesaid." 
 
 William Popham was appointed clerk of this court on the 17th of 
 July, 1786, and held the office until the court was abolished on the 1st 
 of January, 1830, as provided by the repealing act of December, 1828. 
 
 During the colonial period the governor or person administering 
 the government granted probates. By an act passed the 16th of March, 
 1778, the judge of the Court of 
 
 'M'a 
 
 ^a s /#->^ ,#*K #^\ S 
 
 SIX CENTS. 
 
 ' 6ll 
 
 Hie Corporation of tee City of 'f 
 Sew Yar.k_pMnmse to paythe Bearer 
 . on demaim, 
 
 SIX O CENTS 
 
 I JYeu-Tork 2M J)ecem6er,181i. 
 > By Order of liw'CTJrpaiaiian., 
 
 » f • 
 
 NEW YORK CITY CURRENCY, 1814. 
 
 Probates was vested with all and 
 singular the powers and authorities 
 that the governor-general or com- 
 mander-in-chief of the colony for 
 the time being had and exercised 
 as judge of the Prerogative Court, 
 except as to the nomination of sur- 
 rogates in the several counties, who 
 were to be appointed by the Council 
 of Appointment and commissioned 
 under the Great Seal. The same 
 act directed the judge of the Court 
 of Probates to cause a seal of his court to be made. An act passed in 
 1787 authorized the appointment of surrogates in each county. The 
 Court of Probates had appellate jurisdiction over the Surrogate's 
 Court. It was abolished in 1833. The office of surrogate continues 
 until the present day. 
 
 We have seen that the constitution of 1777 recognized the exist- 
 ence of the county courts and that certain men were appointed in that 
 year as judges in various counties. The courts were continued by the 
 constitution of 1821. The judges held office for a period of five years. 
 
 An interesting history of the Court of Common Pleas for the City 
 and County of New York, and its development from the Mayor's Court 
 of the City of New York, may be found in the preface to the first vol- 
 ume of E. D. Smith's Reports. From this account it appears that the 
 mayor usually presided in the court, but from the time of Mayor 
 DeWitt Clinton in 1805 down to 1821, the recorder sat as presiding 
 judge of the court. An act was passed in 1821, changing the name 
 from that of the Mayor's Court to that of the Court of Common Pleas 
 of the City and County of New York, and creating a first judge who 
 
118 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 held his office during good behavior, or until he reached the age oi 
 sixty years. The second constitution, however, changed the tenure of 
 office to five years, and gave the governor the power of appointment. 
 John T. Irving was appointed first judge. Among those who were 
 judges of the court prior to 1846 were Daniel P. Ingraham, who after- 
 ward became a justice of the Supreme Court, and Charles P. Daly, 
 who to-day, after a service of nearly forty years on the bench, is still 
 vigorously practicing law. 
 
 The Superior Court of the city. of New York was established 
 under an act passed March 31, 1828. It had the same jurisdiction as 
 the Supreme Court in all civil causes. Its creation was brought about 
 by the fact that it was impossible to reach a trial in the Supreme 
 Court in less than twelve or fifteen months after the return of the 
 process. The first chief-justice of the court was Samuel Jones, who 
 resigned the office of chancellor to accept the office of chief -justice of 
 the Superior Court. Josiah Ogden Hoffman and Thomas J. Oakley 
 were the other two judges. The chief-justice and the justices were 
 appointed by the governor with the consent of the senate, and held 
 office for a term of five years. 
 
 Justices of the peace existed prior to the Revolution, and were 
 continued after it by various statutes passed at different times. They 
 were the courts nearest the people. 
 
 Chapter 44 of the third session, passed February 26, 1780, empow- 
 
 ered justices of the 
 peace, mayors, recorders, 
 and aldermen to try 
 cases to the value of one 
 hundred pounds and 
 under. It enacts that 
 all causes, actions, and 
 cases of debt, slander, 
 trespass, replevin, or for damages, where the amount demanded did 
 not exceed the sum of £100, shall be heard before one of the justices 
 of the peace of any of the counties, or the mayor or recorder or alder- 
 men of the Cities of New York, Albany, and the borough of West- 
 chester, respectively. 
 
 The defendant was required to appear forthwith, when the process 
 was by warrant, and when by summons not less than six days nor more 
 than twelve days were given for his appearance. The judgment was 
 to be given within four days after the trial. If the magistrate who 
 issued the warrant was absent, the defendant was carried before any 
 other magistrate of the same city, town, borough, manor, precinct, or 
 district. 
 
 LOTTERY FOR UNION COLLEGE. 1 
 
 > Union College realized $284,000 by lotteriea, and the 
 College of Physicians and Surgeons $62,000. Such 
 schemes were common between 1799 and 1820, and 
 
 " deemed not only respectable but legitimate." 
 lation after 1820 brought lotteries into disfavor. 
 
 Legis- 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 119 
 
 The process against all freeholders and against all inhabitants hav- 
 ing families was by summons only, and was served on the person of 
 the defendant, or a copy was left at his or her house or place of abode, 
 in the presence of some of the family of suitable age and discretion 
 (who should be informed of the contents thereof), at least six days be- 
 fore the time of appearance mentioned in the summons. The constable 
 or officer who served the summons was required to endorse upon it the 
 manner in which he executed the same. On non-appearance and no 
 sufficient reason assigned, the court proceeded to trial if the defendant 
 had been personally summoned, but if the summons was left at his 
 house, a warrant issued in case of non-appearance. 
 
 The case could be tried without appearance if the parties agreed 
 to it: On an affidavit showing that the plaintiff was in danger of los- 
 ing his demand if a summons issued, a warrant issued though the party 
 was a freeholder. If the defendant gave security the court might ad- 
 journ the trial. A non-resident plaintiff of the district, upon giving 
 security, might have a warrant returnable immediately. Either party 
 could demand a jury of six freeholders or freemen to try the case. 
 The juror's oath was in the following form : " You shall well and truly 
 try this matter in difference between A B, plaintiff, and C D, defend- 
 ant, and a true verdict give according to the evidence, so help you 
 God." The witness's oath was as follows : " The evidence which you 
 shall give in this matter in difference between A B, plaintiff, and C D, 
 defendant, shall be the truth, the whole truth, and nothing but the 
 truth, so help you God." 
 
 After hearing the proofs and allegations the jury were kept together 
 in some convenient place until they had agreed upon a verdict. When 
 they had agreed they delivered it into court, which gave judgment 
 thereupon. No oath of the parties or ex parte affidavit was admitted 
 in evidence unless the parties consented thereto. Every person sum- 
 moned and drawn as a juror or subpoenaed as a witness, who did not 
 appear, or appearing refused to serve, or give any evidence in such 
 action, forfeited such fine or fines, not exceeding the sum of forty 
 pounds nor less than ten pounds, in the discretion of the court. These 
 fines were applied to the use of the poor of the place where levied. 
 
 If the plaintiff in any such action was non-suited, or discontinued, 
 or withdrew his action without the consent of the defendant, judgment 
 was given against the plaintiff for the costs accrued, and if he ap- 
 peared to be indebted to the defendant, judgment was given against 
 the plaintiff for the amount of his debt or demand, and costs. 
 
 Execution in case of judgment issued to the constable to levy on the 
 debtor's goods, and for want thereof to take the debtor's body. No 
 execution could issue against a freeholder in less than thirty days after 
 judgment, unless on proof of danger of losing the debt. 
 
 It was also provided by section 8 that if any plaintiff should com- 
 mence or prosecute any of the actions mentioned in the act, in any 
 
120 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 other manner than as directed by the act, and should obtain a judg- 
 ment thereon, which without costs should not amount to more than £100, 
 not having caused an oath or affirmation to be made before obtaining 
 the writ and filing the same in the clerk's office, that the person mak- 
 ing the oath or affirmation did truly believe the debt due or damages 
 sustained exceeded £100, should not recover any costs in such action. 
 
 This provision did not extend to suits in the name of the people, 
 or where titles to land came in question, or actions for slander. It also 
 provided that the act should extend to matters of account where the 
 sum total of the account exceeded the sum of £400. 
 
 The act also provided that no justice of the peace, being a tavern- 
 keeper, should try any action in his own house. 
 
 In actions of trespass on plea of title the defendant was required to 
 enter into a recognizance, and to prosecute and make good his title in 
 manner as directed by a law of the Colony of New York entitled " An 
 act for preventing trespass, passed May 6th, 1699," otherwise the mag- 
 istrate was directed to hear and determine the cause as if no such plea 
 had been made. 
 
 The cost for a summons was sixteen shillings ; a warrant, twenty 
 shillings ; a judgment, twenty shillings ; administering every oath or 
 affirmation, ten shillings ; execution, thirty shillings ; subpoena for 
 each witness, ten shillings ; venire facias to summon a jury, twenty 
 shillings ; swearing a jury, thirty shillings ; witness attending on sum- 
 mons or otherwise, forty shillings per day, and so in proportion for a 
 longer time ; constable or other proper officer for serving summons, 
 subpoena, or other execution, for each mile travelled or under, twenty 
 shillings, and for every extra mile ten shillings ; serving every execu- 
 tion for every pound, one shilling ; and summoning every jury, sixty 
 shillings. Jurors received twenty shillings per man for each case tried, 
 and when attending and not serving ten shillings per man. 
 
 The costs seem large to us, but there was a provision in the act 
 that the costs should not exceed in any one case the sum of £40. 
 
 No certiorari or writ of error could be issued unless an affidavit 
 showing reasonable cause was presented to the justice within one month 
 after judgment. A copy of such affidavit was given to the adverse 
 party when required. Upon the affirmance or reversal of the judgment 
 the prevailing party was awarded costs. The Supreme Court was di- 
 rected to order the attorney-general to prosecute magistrates guilty of 
 unjust practices. This act was to remain in force until March, 1781. 
 
 Chapter 9 of the Laws of 1780, which was passed at the fourth 
 session, reduced the jurisdiction of the justices of the peace and the 
 other officers mentioned in chapter 44, above referred to, to the cog- 
 nizance of cases to the value of £10 only. The fees were reduced 
 to one-twelfth part of their nominal value as expressed in said act, 
 and it was further ordained that upon all executions to be issued 
 in consequence of judgments in any court, in pursuance of said act 
 
HISTORY OF THE BENCH AND BAE OF NEW YORK 
 
 121 
 
 after the passage thereof, money should be received at the following 
 and no other rates : Silver at the rate of eight shillings for a Spanish 
 milled dollar, and gold and other coins in the like proportion at the 
 rates they usually pass ; new bills emitted upon the credit of this 
 state pursuant to the act of congress of the 18th of March preceding at 
 their respective nominal value, and every other species of paper cur- 
 rency emitted by the authority of congress, or of the late Colony of 
 New York, or this state, at one-fortieth part of the nominal value 
 thereof, or at the rate of two pence and two-fifths of a pence for each 
 dollar, or eight shillings expressed on the face of each bill. 
 
 The chief law officer of the state is the attorney -general. Egbert 
 Benson was the first one appointed under the constitution of 1777 
 which recognized the office as then existing. It was the duty of the 
 attorney -general, among other things, to prosecute all criminals. The 
 state grew so fast, however, after the end of the war, that the attorney- 
 general was not able to conduct all of the criminal prosecution, and 
 the office of assistant-attorney- 
 general was created in order 
 to relieve him. The state was 
 divided into districts, and an 
 assistant-attorney-general was 
 appointed in each district, and 
 was directed to conduct the 
 prosecution for all crimes 
 cognizable by the Courts of 
 Oyer and Terminer, jail de- 
 livery, and General Sessions 
 of the Peace. The attorney-general was appointed by the Council of 
 Appointment under the first constitution, but under the second he 
 was appointed by the senate and assembly. 
 
 Some of the most eminent men in the state have held the office. 
 Benson was succeeded by Richard Varick, and Richard Varick by 
 Aaron Burr. Josiah Ogden Hoffman was attorney-general in 1795, 
 and Ambrose Spencer, afterward chief-justice of the state, in 1802. 
 Martin Van Buren, Thomas J. Oakley, Greene C. Bronson, Samuel 
 Beardsley, and John Van Buren were also attorney-generals prior to 
 the constitution of 1846. 
 
 By a law passed in April, 1818, each county became entited to a 
 district-attorney. The second constitution authorized the Court of 
 General Sessions in each county to appoint district-attorneys. 
 
 Sheriffs were appointed under the first constitution by the Council 
 of Appointment, and no person could hold the position for a longer 
 period than four years, and could not hold any other office while he 
 was sheriff. Under the constitution of 1821 sheriffs were elected for a 
 term of three years. 
 
 Manv innovations and changes in the common and statute 
 
 BRIDEWELL, CITY HALL PARK. 
 
122 
 
 HISTORY OP THE BENCH AND BAK 01' NEW YOKK 
 
 law of Great Britain were made by the early legislatures of the 
 state. 
 
 Trials by battle were abolished by chapter 7 of the ninth session, 
 passed February 6, 1786. The preamble to this act recites that 
 ' ' Whereas, formerly trials upon writs of right were by battle or the 
 Grand Assize; 'and whereas, the barbarious custom hath deservedly 
 fallen into disuse but hath never been abrogated by law ; and whereas, 
 by the institution of the trial by the Grand Assize, four knights are to 
 be summoned to elect the recognitors ; and whereas, there is nor can 
 not by law be any such order of men in this state." It is worthy of 
 notice in this connection that trial by wager of battle was not abolished 
 in England until after the trial of the celebrated case of Ashford 
 against Thornton, 1 Barnwell and Adolphus 405, which was decided 
 in 1818, which case called the attention of Parliament to the fact that 
 this relic of another age was still part of the common law of England, 
 and the next year it was abolished. 
 
 Chapter 19 of the first session abolished the punishment of .the 
 peine forte et dure. Chapter 69 of the tenth session, passed March 
 30, 1787, is the first act relating to actions of divorce passed in this 
 ^ . state. Its preamble recites that the laws re- 
 
 specting adultery are very defective, and that 
 applications having in consequence been made 
 to the legislature praying their interposition, 
 it is thought more advisable for the legislature 
 to make some general provisions in such cases 
 than to offer relief to individuals upon their 
 partial representations without a just and 
 constitutional trial of the facts. It related 
 only to absolute divorces, which were allowed 
 for adultery only, and provided that it should 
 not be lawful for a party convicted of adultery 
 to remarry again until the other party was 
 actually dead. It gave the Court of Chancery 
 jurisdiction of the cause. It was immediately 
 made use of, for I find that within one year 
 four actions of divorce were pending in the Court of Chancery. 
 That court, however, appears to have had jurisdiction in certain 
 kinds of actions for divorce, for a decree was entered in the case 
 of Elizabeth Pugsley against Israel Pugsley on the 2d of April, 
 1772, which decree provided that the defendant should pay to 
 Lewis Morris, the next friend of the complainant, for her use, the 
 sum of £20 current money of the province yearly during the joint 
 lives of the parties to the cause, or until they should agree to live 
 together again, and also that he pay the costs of the action. This 
 same Israel Pugsley was again before the Court of Chancery on the 
 22d day of May, 1793, when he was, on the petition of his wife, 
 Elizabeth Pugsley, adjudicated a lunatic. 
 
 TONTINE COFFEE HOUSE, CORNER 
 WALL AND WATER STREETS. 
 
CONSTITUTIONAL AND RELATED ASPECTS, FROM 
 1801 TO THE CONSTITUTION OF 1894. 1 
 
 NY outline of the constitutional history of New York in the 
 nineteenth century involves primarily the consideration of 
 several great public movements, culminating in the constitu- 
 tional conventions of 1821 and 1846. Each of the constitu- 
 tions presented by these several conventions led to very radical 
 changes in the substantive law or procedure of the State. The consti- 
 tution of 1821 was followed by a notable revision of the fundamental 
 law of New York, which exercised much influence also on the laws of 
 other States ; while the constitution of 1846 was followed by the over- 
 throw of the ancient judicial establishment of New York, and by drastic 
 reforms of the inherited and antiquated procedure in use for several 
 centuries in the courts of justice of New York. Both constitutions 
 were in the direction of more liberal institutions, and were intended to 
 confer upon the people of the State greater political powers and privi- 
 leges than had ever before been granted to them. 
 
 The constitution of 1777 2 had a variety of defects ; two of these led 
 
 1 In the original scheme of this work it was intended 
 that the preceding historical articles should be followed 
 by a third on similar lines, to be prepared by the Hon- 
 orable Austin Abbott. Mr. 4bbott's death prevented 
 the carrying out of that plan. This article, by Robert 
 Ludlow Fowler, Esq., is reproduced from Vol. III. of 
 the " Memorial History of New York." Editok. 
 
 3 The first constitution of the State of New York was 
 framed pursuant to a resolution of the continental con- 
 gress, May 10, 1776 recommending that those colonies 
 which were without a sufficient form of government 
 should adopt some suitable organization. A "Conven- 
 tion of the Representatives of the State of New York " 
 accordingly assembled at White Plains, July 9, 1776. It 
 appointed a committee to take into consideration a plan 
 for instituting and framing a State government. The 
 resulting constitution— of which John Jay is regarded as 
 the principal author — was adopted by the convention' 
 then sitting at Kingston, April 20, 1777. This instru- 
 ment became the supreme law of the State without any 
 further formality. It was not submitted to the vote of 
 the people at large. Although it was strictly a product of 
 the Revolution, to meet the changed circumstances 
 brought about by that great event, it was remarkably 
 conservative in its general provisions. While the first 
 section declared that "No authority shall, on any pre- 
 tense whatever, be exercised over the people or members 
 of ttifl State, but such as shall be derived from and 
 granted by them," the constitution was far from in- 
 
 stituting violent 1 democratic innovations. The suffrage 
 was rescricted to freeholders in the province and to free- 
 holders of New York City and Albany. As an illustra- 
 tion of the workings of this restriction, in the year 1790 
 only 1,303 of the 13,330 male re&idents in New York City 
 possessed sufficient property to be entitled to vote for 
 State senators. In order to limit the legislative powers 
 of the people's representatives a " council of revision M 
 was constituted, consisting of the governor, chancellor, 
 and Supreme Court judges, or any two of them acting 
 with the governor, and a vote of two-thirds of both 
 houses was required to override the council's veto. The 
 office of governor retained much of its aristocratic char- 
 acter. It was required that the governor should be a 
 freeholder, and only citizens possessing freeholds of the 
 value of £100 were authorized to vote for governor. All 
 officers except the governor and lieutenant-governor 
 were made appointive, and were to be selected by a 
 council of appointment composed of the governor and a 
 council of senators chosen by the assembly. The only 
 change made in the organization of the judiciary was 
 the creation of one new tribunal, the Court for tlie Trial 
 of Impeachments and the Correction of Errors. Both 
 the Supreme Court and the Court of Chancery were left 
 entirely undisturbed, notwithstanding that they owed 
 their origin to ordinances of the royal governors, issued 
 in opposition to the wishes of the popular assembly. 
 But the legislature was forbidden to institute any new 
 courts "but such as shall proceed according to the 
 
 1S3 
 
124 HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 to the constitutional convention elected in the year 1801. The consti- 
 tution of 1777 had omitted all directions for its amendment ; but on 
 the theory that all political authority emanated from the people, the 
 legislature in 1801, by a referendum act, recommended a convention to 
 consider two changes. One of these was made necessary by the em- 
 barrassing ratio in which the senate and assembly were augmenting 
 with the population, and the other by a notorious conflict which had 
 arisen between the governor and the other members of the council of 
 appointment concerning the governor's exclusive right of nominating 
 to certain public offices under the provisions of the constitution of 
 1777. 
 
 The delegates accordingly elected by the suffragists met at Albany, 
 October 13, 1801, and chose Aaron Burr, a delegate for Orange County, 
 chairman. The ultimate number of members of assembly was for 
 the future restricted to one hundred and fifty, and the number of 
 senators to thirty-two. The right to nominate to office under the 
 23d section of the constitution of 1777 was declared to be vested 
 concurrently in the governor and in each of the members of the 
 council of appointment. The change made in the appointing power 
 by this construction of the constitution deprived the office of gov- 
 ernor of the State of much of its existing influence, and led to a per- 
 petual struggle of the politicians for the control of the council of 
 appointment. It introduced no real reform, and led only to the con- 
 viction that the appointing power was more safely lodged in the 
 hands of the executive than in the hands of a counsel or committee. 
 
 In reading the accepted version of the political history of the State 
 of New York, one might infer that the entire period between 1777 
 and 1821, the date of the second constitution, was devoted to a con- 
 stant and petty struggle for political place, and that no lofty public 
 measures received or demanded the attention of the leaders of the 
 political parties of the State. Yet such an inference is not wholly 
 verifiable. During this entire period there was great popular dissatis- 
 faction with those provisions of the State constitution of 1777 which 
 related to the property qualifications for electors, and with other pro- 
 visions which vested such transcendent political powers in the judges 
 of the great courts of record. The popular dissatisfaction for some 
 time took the usual form of protests in the newspapers of the day. 
 
 course of the common law." A trial of secret voting character of the constitution of 1777, " the new form of 
 
 by ballot was provided for, but with the proviso that government of New York contained several features new 
 
 if it should prove a failure the old viva' voce method to the history of political societies- -absolute religious 
 
 should be resumed. The law of the State was estab- toleration and the declaration, rather than the realiza- 
 
 lishedbya declaration that it should consist of "such tion, of a complete popular supremacy, absolutely un- 
 
 parts of the common law of England and of the statute alloyed with differences in status, for no mention was 
 
 law of England and Great Britain, and of the acts of the made of African slavery in the constitution, and its total 
 
 Legislature of the Colony of New York, as together did abolition was evidently contemplated by the founders of 
 
 form the law of the said colony on the 19th day April, the new State." (See Mr. Fowler's article, " Constitu- 
 
 1775," subject to such alterations and provisions as the tional and Legal History of New York in the Eighteenth 
 
 legislature of the State shoirid make concerning the same. Century," " Memorial History of New York," Vol. II., 
 
 Notwithstanding, however, the generally conservative chapter xiv. Editor. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 125 
 
 But in August, 1820, Tammany Hall, as the organized representative 
 of the dissatisfied element of the population, initiated a movement 
 for a convention to amend the State constitution. The subsequent 
 legislative bill providing for the convention promptly met with the 
 disapprobation of a majority of the council of revision, who vetoed it, 
 Chancellor Kent writing the opinion of the council with all the con- 
 servatism of a trained lawyer. No veto in the history of the State 
 has met with greater censure than this action of the council of 
 revision. The council was openly accused of wishing to defeat the 
 will of the people, and of conspiring to retain the State in the hands 
 of the lawyers and landholders who, from its foundation, had care- 
 fully guided its political fortunes. The report of Michael Ulshoeffer, 
 chairman of the select committee of the assembly, combated the logic 
 of the veto with great vigor, and is regarded as the abler State paper 
 of the two. 1 A bill was finally so drawn in March, 1821, as to meet 
 the main objection of the veto by the council of revision. It submit- 
 ted the question of holding a constitutional convention to the decision 
 of the electors of the State. The electors having decided in the 
 affirmative by a vote of 109,346 to 34,901, delegates were next chosen, 
 who met at Albany in August, 1821. Before considering the changes 
 accomplished by the convention, it will be in order to survey the 
 forms to which some of the leading institutions had then attained. 
 
 The judicial establishment of New York was never more efficient 
 than in the first twenty-one years of the present century. It was still 
 substantially the provincial establishment erected by the English, and 
 continued by virtue of the recognition accorded to it in the first State 
 constitution, adopted in 1777. Under this constitution the Supreme 
 Court of Judicature, as originally established in 1691, continued on its 
 ancient footing. But the influence of the court increased much with 
 the growth of population and affairs, and this was followed naturally 
 by the publication of a regular series of printed law reports. The 
 elevation of James Kent to the Supreme Court bench in 1798, and his 
 interest in the law reports, did much to place this ancient court on a 
 more influential basis. Under the judgeships of three great judges — 
 Kent, Thompson, and Ambrose Spencer — the court was very excel- 
 lently administered, and many legal principles were settled ; while 
 fluctuating theories gave place to determinate and known rules of law, 
 reported in the famous series of leading cases by Caine and Johnson, 
 the official Supreme Court reporters. The Supreme Court justices still 
 went the circuit when the regular terms of the court in banc were not 
 in session in Albany, Utica, or New York. As a law court the Supreme 
 Court of New York may have been surpassed by several of the law 
 courts of other States, whose influence on American law has been, no 
 doubt, more profound. But it was otherwise in respect of the Court 
 of Chancery. 
 
 • See this paper in Street's "N. Y. Council of Revision," 455. 
 
126 HISTORY OF THE BENCH AND BAR OF NEW" YORK 
 
 In the year. 1814, James Kent was translated from the chief-jus- 
 ticeship of the Supreme Court to the Court of Chancery. From a 
 common-law judgeship he passed to the " throne of equity." In the 
 same year, Johnson, the Supreme Court reporter, was directed by the 
 legislature to report the decisions of the chancellor. With this event 
 begins the most brilliant period of the New York Court of Chancery. 
 Livingston, the first chancellor under the State government, had 
 been an able judge, a great diplomat, and a sagacious figure in politi- 
 cal life, but his judicial work is not known, as his opinions have re- 
 mained unpublished. Only his legal opinions in the council of 
 revision, and a few rules of court, as yet mark his term of office as 
 chancellor. Of Chancellor Lansing's administration more is known, 
 for he promulgated seventy-four chancery rules, or standing orders 
 in chancery, which are called by jurists the equivalents of edicts or 
 direct legislation, and are recognized as powerful factors in the ad- 
 ministration of government. Some of these rules were an improve- 
 ment on the contemporary English equity practice. Chancellor 
 Lansing's career also labors under the disadvantage of having had 
 no reporter. But with Lansing's successor, Chancellor Kent, it is 
 otherwise : from the very beginning of his judicial life he was at- 
 tended by the reporters, and the precise value of his labors to the 
 State and nation is approximately ascertainable. Chancellor Kent 
 had, at the threshold of his career, perceived that to an American 
 lawyer of his day two great and living problems were presented for 
 solution : the relations of the common law of the older country to the 
 new republic, and the relations of the judicature branch of government 
 to the legislative and executive branches in a composite or federal 
 state. In 1794, as professor of law in Columbia College, he had ad- 
 dressed himself tentatively to the latter proposition. In 1795 he pub- 
 lished a small volume of dissertations preliminary to a proposed 
 course of lectures on the common law. But the lectures failed to at- 
 tract hearers, and were discontinued. At a long subsequent period, 
 and in his retirement, he gave to the public his " Commentaries on 
 American Law," which throughout the United States became a recog- 
 nized institutional treatise, as celebrated in its way as Blackstone's 
 "Commentaries on the Laws of England" had been in its way. In 
 the New York Court of Chancery, Kent found an instrument which 
 he at least knew how to use. He was profoundly impressed with the 
 traditions and dignity of the ancient prototype of his court, the High 
 Court of Chancery in England. No one could be more mindful of the 
 fact that in England the chancellors had exercised legislative func- 
 tions similar to those which the Roman pretors discharged in the 
 development of the civil law. But Kent had no disposition to inno- 
 vate. His was an eminently practical mind, and in the year follow- 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 127 
 
 ing his elevation to the chancery he stated that he would follow the 
 English chancellors' conceptions of equity, and would undertake no 
 innovations, which he regarded as very dangerous. 1 In thus limit- 
 ing his extended judicial powers, he, perhaps, denied himself an 
 opportunity of expressing his own conceptions of equity, and of 
 taking an original place in the very front rank of English-speaking 
 chancellors. He was content to serve as an expounder and com- 
 mentator of Anglo-American law: thus he contributed little that 
 was original to those fundamental canons of English equity which 
 comprise the perpetual edict of that system, and which were prac- 
 tically completed in England by his contemporary, Lord Eldon. In 
 this respect Kent's present influence differs from the influence, for 
 example, of such an American jurist as Marshall, who possessed an 
 original and creative intellect of the highest order, and whose judg- 
 ments must always be sensible on this continent in the region of 
 political law and philosophy. In thus treading in the footsteps of 
 the English chancellors, Kent did not, as we shall see, escape the re- 
 sponsibilities which the anomalies incident in New York to his office 
 made inevitable; for the recipient of such great political powers could 
 not hope to elude criticism under a republican form of government. 
 Nor can it be said that those who, in the convention of 1821, criticized 
 the abnormal power intrusted to a chancellor of this State, were 
 wholly without justification. In addition to exercising the law pow- 
 ers of a chancellor under the former English system, the chancellor 
 of New York, by virtue of his office, sat in the court of last resort, and, 
 though he could not vote, might argue in support of his own judg- 
 ment below. He was also one of those who possessed in the council 
 of revision a qualified veto on all legislation under the first constitu- 
 tion. This was an abnormal and tremendous power for a judge. 
 These powers, which it is proper to say Kent had not sought, nor 
 even helped to confer, he exercised without fear, in the old-fashioned 
 federal and professional manner, very exasperating to the newer 
 school of republican lawyers, who would not defer so profoundly to 
 the, legal system of England. Thus, toward the year 1821, Kent, in 
 the minds of his opponents, was the leading representative of the 
 hated and influential survival of what they believed ought to have 
 been purely ante-revolutionary traditions, having little application to 
 the conditions of American life under the republic. His opponents 
 deprecated the chancery conceptions of a "throne of equity." Indeed, 
 the whole idea of a chancellor, they said, was associated with a king- 
 ship: a chancellor without a king was almost as inconsistent as a 
 king without a chancellor. The entire chancery establishment came 
 in for condemnation because it fostered a class of officials and prac- 
 
 1 1 Johnson's Chancery, 530. 
 
128 HISTORY OP THE BENCH AND BAR OF NEW YORK 
 
 titioners whose exclusiveness was distasteful to the population of the 
 newer and growing parts of the State. Thus, side by side with Chan- 
 cellor Kent's practical, conservative, and just administration of the 
 Court of Chancery, were growing up the seeds of discontent in the 
 minds of the more independent and emancipated political thinkers. 
 This discontent culminated in the constitutional convention of 1821, 
 when Kent had been only seven years chancellor of New York. 
 
 In addition to the great courts mentioned, there were in the year 
 1821 the Court of Errors and the Court of Probates, already noticed. 
 The Court of Errors, it will be recalled, consisted of the senators, the 
 chancellor, and the judges of the Supreme Court. 1 In 1787 a minis- 
 terial part of the jurisdiction of the Court of Probates had, by an act 
 of the legislature, devolved upon certain officers termed surrogates. 
 The Court of Admiralty had expired when the admiralty jurisdiction 
 had been called into being by the federal constitution of the general 
 government. The minor courts of the State remained in 1821 sub- 
 stantially as before the Revolution. 
 
 Before noticing the changes wrought by the new constitution, let 
 us glance again at the condition of the State of New York about the 
 time of the convention of 1821. In 1808 the number of freeholders 
 entitled to vote for senator and governor was 36,500, and in 1820, 
 despite the increase in population, the number of freeholders qualified 
 to vote for the great officers of the State had not increased in a like 
 ratio with the population. This was felt to be a grievance by the 
 people at large. In 1820 the major part of the inhabitants were still 
 engaged in agriculture, and the rural districts were increasing in 
 population at a greater ratio than the urban communities. In 1812, 
 twelve new counties had been carved out of the one great county 
 theretofore lying west of Seneca Lake. In 1820 the sixteen counties in 
 the State of the year 1790 had become fifty-five counties, embracing 
 five incorporated cities and six hundred and sixty-two boroughs 
 or towns. 2 After the peace with England in 1783 the western terri- 
 tory, or that great country west of the 80th meridian, had attracted 
 large numbers of settlers. One of the routes to the Ohio country 
 from New England was through central New York, and many men 
 of New England birth either stopped on their way to the far West, 
 or settled in New York, finding certain advantages or attractions 
 in the then wild parts of this State. Thus, central, western, and 
 northern New York soon began to have the political tone of New 
 England. 3 These men of New England entertained very different 
 conceptions of government from those embodied in the State consti- 
 tution of 1777 by the old land-owning and lawyer classes of the prov- 
 
 » " Memorial History of New York," Volume II. a Spofford's " Gazetteer," p. 691. 
 
 3 " Gazetteer of Western Continent for 1810: " title, " New York," 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 129 
 
 ince of New York. Thus it happened that the exponents of the new 
 parts of the State — men of the old-fashioned Puritan names — were, 
 in the constitutional convention of 1821, as a rule, found in the party 
 of reform, and not in the ranks of the more conservative and native 
 element of the State. 
 
 As late as 1820 the more populous districts of the State existed in the 
 two oblongs anciently settled, — extending, the one down Long Island 
 and the other up the Hudson River, — and there the inhabitants were 
 mainly of the old provincial type. In Kings, Ulster, Albany, and parts 
 of Orange County might still be heard the Low Dutch of the seven- 
 teenth century, although, from the want of Dutch schools and the 
 preponderance of people of English stock, the use of the language 
 of the first European settlers had greatly diminished. But in the an- 
 cient districts Dutch and English names were still found in most 
 families curiously combined, denoting that the social condition had 
 followed the political transitions of the province, and that the race 
 of the conqueror had blended with that of the conquered. The pop- 
 ulation in these districts was still largely native. Franklin pointed 
 out that even at the time of the war of independence the inhabitants 
 of all the American colonies were largely natives, and descended from 
 those who had emigrated from Europe prior to the year 1700. The 
 fact that the population of New York State was largely native in 1820 
 is corroborated by the statistics of the city of New York in 1820, when, 
 out of a total population of 123,706, but 5390 of the inhabitants of 
 that city appear to be classed as unnaturalized foreigners. Indeed, in 
 1820 the population of the whole State was mainly composed of na- 
 tive Americans, and, as stated, the major part were engaged in agri- 
 cultural pursuits. 
 
 The great city which now stands rather for North America than for 
 the State of New York, and which is fast outgrowing its traditions as 
 an ancient capital of an ancient province, had increased from 80,000 
 inhabitants in 1808 to 123,706 in 1820. From the year 1756 to the year 
 1790 the general progress of the city in population and resources was 
 much like that of other American cities. But after 1790 it became 
 evident that New York was, for a long time at least, to lead other 
 American cities. 1 Yet for some years after the constitutional con- 
 vention of 1821 the affairs of this city were conducted mainly under 
 the royal charter known as the Montgomerie Charter of 1730. 2 As 
 late as 1827 General Dix noticed the fact that in New York city "the 
 Dutch families by which the first settlement was formed were still 
 represented in their descendants, who constituted a considerable pro- 
 portion of the whole number of inhabitants," 3 but he admitted " that 
 
 » Dix's " HeBources of the City of New York iu 1827." 3 " Memorial History," Volume II. 
 
 > " Resources of the City of New York," p. 38. 
 
130 
 
 HISTORY OF THE BENCH AND BAB OF NEW TOEK 
 
 the descendants of the English families who established themselves 
 during its colonial dependence on Great Britain" were then much 
 more numerous. 
 
 Such, then, were some of the conditions prevailing in New York 
 at the time of the constitutional convention of 1821 — a population 
 
 ty^a^s^^ composed largely of native Americans, 
 
 %\ whose pursuits were in the main agri- 
 
 cultural. No body of aliens had yet be- 
 come so formidable or consolidated as to 
 constitute a known and separate political 
 organization, generaled and led by pro- 
 fessional political headmen of their own 
 race. The conditions of commerce were 
 still largely primitive in character: the 
 JK Erie Canal had not been completed; steam 
 navigation was yet in its infancy, the 
 telegraph and the railroad were unknown ; 
 while postal circuits were made over the 
 common turnpikes and waterways of the 
 State. Yet the material conditions of life 
 were relatively those of a highly civilized 
 State, and not very dissimilar to the conditions in the civilized States 
 of the older world. New York had already been settled for two cen- 
 turies. 
 
 When the constitutional convention met at Albany, August 28, 1821, 
 the delegates were fairly representative of both the reformers and the 
 conservative party in the State. The older counties sent their most 
 distinguished lawyers and the landholders representing their tradi- 
 tions. From Albany and the older counties came Chancellor Kent, 
 the Jays, and the Livingstons ; from New York County came, among 
 others, Nathan Sandford, Ogden Edwards, Henry Wheaton, and Jacob 
 Radcliff . From the newer counties were sent such men as Jarvis Pike, 
 Nathan Carver, Victory Birdseye, Micah Brooks, Jason Fenton, and 
 General Erastus Root. Among the other notable members of the 
 convention were Daniel D. Tompkins and Martin Van Buren, From 
 the fact that Daniel D. Tompkins, " the favorite farmer's son," as he 
 was then called, was elected chairman of the convention, it was soon 
 evident that the Democrats were in the majority, and that the new 
 constitution was to be made more democratic in principle than the 
 
 l Andrew Kirkpatrick was born February 17, 
 1756, and graduated at Princeton. He studied law, 
 was admitted to the bar in 1785, and practised suc- 
 cessfully. In 1797 he was a member of the New 
 Jersey legislature, soon resigning to become judge 
 of the State Supreme Court. In 1803 he was made 
 
 chief justice of the, State, which office he held 
 for twenty-one years. He married Jane, eldest 
 daughter of Colonel John Bayard, and died in 
 New Brunswick, N. J., January 7, 1831. {Vide a 
 privately printed address on the chief justice, by 
 General Wilson, New-York, 1870.) Editor. 
 
HISTOKY OF THE BENCH AND BAR OF NEW YORK 131 
 
 old one had been. The debates in the convention show clearly that 
 the primacy of the old judicial establishment, with its abnormal polit- 
 ical power and the qualified electoral franchise erected on a basis of 
 landed interest, in conformity to the former Anglican institutions of 
 the province, were the main points of attack by the reformers. In- 
 cidentally the justices of the Supreme Court, and even the distin- 
 guished chancellor, were virtually put on trial by the convention. 
 They were made the manifest victims of an organization which had 
 confused the coordinate departments of government, and their ex- 
 planations in convention were generally prefaced by apologetic and 
 painful explanations due to their unfortunate position. In this re- 
 gard the spectacle of the convention was a triumph of democracy 
 over the upholders of ancient institutions. Sometimes the debates 
 became virulent. The chancellor was likened to " the Bohun Upas of 
 Java, that destroyed whatever sought for shelter or protection in its 
 shade." Even his reporter, Johnson, with his " big and little " books, 
 was ridiculed. Chief Justice Spencer, in some respects the ablest 
 common-law judge in the State, was contemptuously told "that he 
 might have been a Holt or a Mansfield had he kept from the political 
 arena." It was evident that the people were impatient with the veto 
 power vested in the council of revision, which, it will be remembered, 
 consisted of the governor, the judges of the Supreme Court, and the 
 chancellor. The judiciary had thus been dragged into every political 
 measure of importance, and the consequent torrent of popular de- 
 nunciation had much diminished their usefulness. Thus, Kent and 
 Spencer, whom we now regard as the high priests of the ancient sys- 
 tem of law, were at the end of their judicial careers made the victims 
 of the Anglican institutions of a former century, of which they were 
 the stoutest upholders. It may well be doubted whether the chan- 
 cellor and the judges were wise in attending the convention as dele- 
 gates. They knew that their power was to be broken; they were 
 there making stately defenses of their past, and to save the remnant 
 of former institutions, when neither needed extenuation. The con- 
 vention finally decided to make a new constitution, as the old was 
 deemed past amending. The council of revision was abandoned, and 
 after the fullest deliberation a limited veto power was transferred to 
 the governor. The council of appointment, which then appointed 
 709 officers in the city of New York alone, next shared the fate of the 
 council of revision. A great number of minor offices were made 
 elective. 1 Justices of the peace were to be appointed by the boards 
 of supervisors and the county judges. 2 The appointment of the 
 higher judicial officers was vested in the governor, with the consent 
 
 l Constitution of 1821, Art. IV. 
 2 In 1826 an amendment made the justices elective. 
 
132 HISTOKY OP THE BENCH AND BAK OF NEW "YORK 
 
 of the senate. 1 The appointment of secretary of state, comptroller, 
 treasurer, attorney-general, 2 surveyor-general, and commissary was 
 vested in the senate and assembly on joint ballot. All officers hold- 
 ing their offices during good behavior might be removed by joint 
 resolution of the two houses of the legislature. The term of office of 
 governor having been invested with some part of the former powers 
 of the several councils of revision and appointment, was abridged 
 from three to two years in order to insure a greater responsibility to 
 the electors. 
 
 The debates in the convention on the electoral franchise were 
 spirited, exhaustive, and really instructive. With the most advanced 
 thinkers on this subject stood Peter R. Livingston of Duchess 
 County. He allied himself to the tenant-farmers, who were largely 
 for reform, and opposed General Van Eensselaer and Chancellor Kent, 
 who stood openly by the ancient traditions of a superior landed 
 interest, and who were at least for the survival of an upper legislative 
 house which should represent the more exclusive body of freeholders. 
 All recognized that some extension of the franchise was inevitable, 
 and the more conservative fought to retain the provisions of the old 
 constitution which divided the electors into two classes according to 
 property interest. The debates afford curious evidences of the sur- 
 vival of ancient institutions, and the frequent use of such words as 
 " yeomanry " and "landed interest" denotes that the legacies and tra- 
 ditions of a former century were hard to extinguish even under the 
 republic. General Van Rensselaer placed his objections to universal 
 suffrage on the ground that the influence of the city of New York 
 would be augmented at the expense of the ancient and long-settled 
 I'ural districts. Other opponents placed them on the more subtle 
 ground of experience, which they affirmed had demonstrated that uni- 
 versal suffrage gave an undue control to the plutocracy of wealthy 
 manufacturers and other employers of labor. The convention finally 
 enlarged the basis of the franchise. Freeholds no longer qualified. 
 Every white male resident taxpayer, militiaman, fireman, and laborer 
 on the public highways, of full age, was to have a vote for all elective 
 officers. 3 Men of color only were disfranchised, unless they were free- 
 holders and for three years citizens of the State. Singularly enough, 
 the most radical upholders of universal suffrage appear to have been 
 the opponents of the negroes, whose true friends were found in the 
 ranks of the old land-holding and legal aristocracy of the State. 
 
 1 Constitution of 1821, Art. IV, Sec. 7. passed April 21, 1818, each county was erected into 
 
 2 Under an act of February 12, 1796, seven as- a separate district. Under the second constitution 
 sistant attorney-generals were appointed by the the district attorneys were appointed by the 
 governor and council of appointment during Court of General Sessions in each county- See 
 pleasure. The attorney-general officiated per- Memorial History, Volume II., Chapter XIV. 
 sonally in New York County. The office of district s In 1826 most barriers were removed, and white 
 attorney was created April 4, 1801. By a law manhood suffrage made practically universal. 
 
HISTORY OP THE BENCH AND BAIt OV NEW YORK 133 
 
 The most interesting chapter in the history of the convention 
 relates to the judicial establishment, which we have seen owed its 
 existence to the former royal government, and its continuance to the 
 conservatism of those who had framed the constitution of 1777. In 
 the year 1821, the Supreme Court of Judicature consisted of Chief 
 Justice Spencer and three associate justices, who were, as we see them 
 now, all able common-law lawyers, bat perhaps not free from the 
 peculiar formalism of the old English law administered by them. 
 Their political attitude and their labors in the council of revision 
 had undoubtedly made them very obnoxious to the people, and had 
 brought even their judicial work, which was of the highest order, 
 into great and unmerited disrepute. The new constitution vacated 
 all judicial offices after December 1, 1822, and thus assured a new 
 common-law judiciary. Various proposals were made in convention 
 to transfer the entire equity powers of the chancellor to the Supreme 
 Court, and to render the court more popular and accessible ; but this 
 reform was postponed. 
 
 The changes effected in the judicial establishment were not great. 
 The powers of the judges of the great courts were somewhat circum- 
 scribed, and the judges themselves were removed out of the imme- 
 diate realm of politics by the destruction of the council of revision. 
 They were retained as members of the old Court of Errors, consisting 
 of the senators and the higher judiciary, as before, though the senate 
 was rendered much more democratic by the practical abolition of the 
 former property qualification required of the electors for senators. 
 Some slight change was made in the procedure of the court when 
 sitting as a court for the trial of impeachments. The powers of the 
 Supreme Court justices were further circumscribed, as it was sup- 
 posed, by taking away from them the duty of going the circuit, which 
 it was asserted had been often made a political tour whereby the 
 authority and majesty of the law had been perverted to partizan uses. 
 The circuit and chamber duty of Supreme Court justices was trans- 
 ferred to a new class of circuit judges, who might also be invested by 
 the legislature with an original equity jurisdiction. 1 Thus relieved of 
 circuit duties, the Supreme Court was reduced to three justices, con- 
 sisting of a chief justice and two associates, who were to hold office, as 
 before, during good behavior or until sixty years of age, though they 
 might be removed by joint resolution of the two houses of the legis- 
 lature. Although the Court of Chancery was not destroyed, Chan- 
 cellor Kent's term of office was not extended, and was left to expire in 
 a few months, or when he reached sixty years of age, 2 which hap- 
 
 1 Constitution of 1821, Art. V. through the senile infirmities of Chief Justice 
 
 2 The same limitation was contained in the Horsmanden, one of the last of the crown judges, 
 constitution of 1777. It was inserted at the in- and for some thirty years on the bench. 
 
 stance of thi lawyers, who had heen plagued 
 
134 HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 pened in a short space. 1 It was proposed in the convention to 
 abolish this court and transfer its powers to the law courts, but the 
 time was not deemed opportune. Under the authority of the consti- 
 tution, which authorized the legislature to vest equity powers in the 
 common-law judges, 2 very considerable changes in the organization 
 of the court were, however, soon introduced in practice. It was 
 thought that this measure would lessen or popularize the power of 
 the chancellors. But the chancellors soon demonstrated the fallacy 
 of this opinion, 3 claiming that their judicial powers were beyond the 
 control of the legislature. The measure, however, did demonstrate 
 the feasibility of merging legal and equitable powers in the same 
 judicial officer, and under the succeeding constitution it led to very 
 extended reforms of a like nature. 
 
 The new constitution of 1821 4 made a slight alteration in the 
 declaration concerning the future law of the State. The original 
 constitution had continued a part of the statute law of England as 
 the law of New York. The legislature, having consolidated all the 
 English statute law in a general revision, had repealed in 1788 the 
 residue, and so the new constitution, unlike the first, made no 
 reference to the English statutes, but declared " such parts of the 
 Common Law and of the acts of the legislature of the Colony of 
 New York as together did form the law of the said Colony on the 
 19th day of April, 1775, and the resolutions of the Congress of the 
 Colony and of the Convention of the State of New York in force 
 on the 20th day of April, 1777, which had not since expired, or 
 been repealed, or altered, and such acts of the legislature of this 
 State as were then in force, should be and continue the law of this 
 State, subject to such alteration as the legislature should make con- 
 cerning the same." All parts repugnant to the new constitution were 
 excepted. 
 
 The other changes wrought by the constitution of 1821 were in the 
 main subordinate to those indicated. The Bill of Rights sections were 
 amplified in conformity to the amendments to the federal constitu- 
 tion. One section, growing out of a famous case, was, however, en- 
 tirely new. 6 It provided that, in all prosecutions for libel, the truth 
 might be given in evidence; and if it should appear to the jury that 
 the matter charged as libelous was true, and published with good 
 motive and for justifiable ends, the party should be acquitted. The 
 
 i When Chancellor Kent left the bench he was convention so moderate a reform as the constitu- 
 
 overwhelmed with attention hy the bar, and va- tion of 1821, he was consistent, 
 
 rious memorials and tributes were addressed to 2 Art. V, Sec. 5. 3 2 Paige, 95. 
 
 him. He had been a faithful, learned, and diligent 4 The constitution of 1821 came into full force 
 
 judge, and reflected great honor on the State. But and effect on the 1st day of January, 1823, but the 
 
 he was not in strict accord with the more ad- convention was chosen in 1821, and entered upon 
 
 vanced democratic notions of popular govern- its duties in August of that year, 
 
 ment ; and when he refused even to sign in the 5 Art. VII, Sec. 8. 
 
HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 135 
 
 jury were to have the right to determine the law and the fact in such 
 cases. The history of this section was intimately associated with the 
 trial of Crosswell, indicted in 1803 for libeling Thomas Jefferson, then 
 president of the United States. On the trial, Chief Justice Lewis had 
 charged the jury that they were to pass only on the publication of 
 the libel and the truth of the innuendoes, other questions being re- 
 served to the court. Alexander Hamilton, in the motion in arrest of 
 judgment, was said to have made the great- 
 est argument of his life, thus vividly recall- 
 ing the trial of Zenger, and the argument 
 by another great advocate of the same 
 name, in the same court, in the year 1735. 
 The court in banc being divided in Cross- 
 well's case, a bill was introduced in the 
 legislature in 1805, by William W. Van Ness, 
 settling the law on this point. The pur- 
 port of this act was now thought important 
 enough to be fixed more securely by consti- 
 tutional enactment: 
 
 In January, 1822, the people ratified the 
 new constitution by a vote of 75,422 to 
 41,497 for the constitution, and in favor of 
 a change in the nature of the original State 
 government of New York. By the con- 
 temporaries of this measure it was esteemed a revolution ; but as we 
 see it now it was but a conservative step forward in the march of 
 more democratical institutions. The changes thus really wrought in 
 the political fabric may be briefly summarized as follows : The mode 
 of exercising the veto power was reformed by transferring a qualified 
 negative to the governor alone. A more democratic method of exer- 
 cising the appointing power was adopted, while complete democracy 
 was attained in respect of many minor offices made elective. The 
 suffrage was so extended as to constitute practically white manhood 
 suffrage, few persons without property, except those of African 
 descent, being disqualified to vote. 2 The senate having been thus 
 
 i William Paterson was born in 1745, and his 
 parents, who were Irish, brought him to this coun- 
 try when he was two years old. He was graduated 
 at Princeton, studied law, and was admitted to the 
 bar in 1769. In 1776, he was a member of the New 
 Jersey State Constitutional Convention, and the 
 same year became attorney-general. He was a 
 delegate to the Continental Congress in 1780-81 
 and to the National Constitutional Convention in 
 1787, and in 1789 was elected to the United States 
 Senate, which then met in this city. He became 
 governor of New Jersey in 1791, and two years later . 
 was appointed by Washington a justice of the Su- 
 
 preme Court of the United States, an office he held 
 until his death, in 1806. His daughter Cornelia 
 married General Stephen Van Rensselaer. ( Vide, 
 " New-York Genealogical and Biographical Record 
 of 1892," for an address on the judge by his grand- 
 son William Paterson of Perth Amboy.) 
 
 Editor. 
 2 It was not until 1826 that citizenship, man- 
 hood, and residence became the avowed basis 
 of the electoral franchise (Constitutional Amend- 
 ment of 1826) for the white part of the population, 
 negroes being required until 1870 to be freeholders 
 paying tax before they were entitled to vote. 
 
136 HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 popularized, the Court of Errors, then constituted in the senate, was 
 brought nearer to the great body of the people. The original courts 
 of justice of New York, the Chancery and the Supreme Court, were 
 left in such a condition that the chancellor and the Supreme Court 
 justices were no longer officers of State, but were to exercise judicial 
 functions only, of which they might be largely shorn by the power 
 reserved to the legislature, and affecting their several 'jurisdictions. 
 The defect in the original constitution, which made no provision for 
 its future amendments, was remedied by Article VIII of the new in- 
 strument, prescribing the formalities, including a vote of the electors, 
 to attend future amendments. This amendment was taken from a 
 similar provision in the constitution of Massachusetts, and obviated 
 the necessity of a convention upon each change proposed thereafter. 
 
 In several respects the new constitution still reflected ancient class 
 prejudices: the governor must be chosen from the body of free- 
 holders, and must be a native citizen of the United States. Neither 
 the possession of personal estate nor naturalization was sufficient to 
 qualify a non-freeholder and an alien born for this office. The ex- 
 periment of voting by ballot, having been provided for in the first 
 constitution and having proved successful, was, in the new constitu- 
 tion, made imperative on the future. 
 
 The first legislature under the new constitution was overwhelmingly 
 Democratic, not a single senator being of the other political party. 
 Governor Clinton met the legislature when it convened, and delivered 
 a speech to them, wbich was met with a motion for a committee to 
 consider the propriety of answering it. This committee made a re- 
 port animadverting in terms of severity upon the governor, and pro- 
 nounced the practice of delivering a speech instead of a message " a 
 remnant of royalty " which ought not to be tolerated. This incident 
 serves only to indicate the jealous deprecation of the ancient customs 
 of New York, and that with the new constitution the people intended 
 more fully to break with the past and to enter upon a genuine era of 
 republican government. 
 
 In April, 1823, 1 the legislature, pursuant to the new constitution, 
 divided the State into circuits for the purpose of organizing the new 
 Circuit Courts carved out of the old Supreme Court, and substituted 
 for the old nisi prius or itinerant sessions. By the same act, the 
 new circuit judges, who possessed the powers of the old justices of 
 the Supreme Court in chambers and on circuit, were required to reside 
 within the circuit for which they were appointed. This last provision 
 for prudential reasons had not been thrust on the convention, as it 
 might have alienated the votes of those who were believed to be can- 
 didates ; but the idea was nevertheless very influential in animating 
 
 Chapter 182. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 137 
 
 some persons who regarded the old courts as centralized institutions 
 and too closely connected in their traditions with ante-revolutionary 
 times. This school of thought desired a local judiciary of first in- 
 stance, rather than one whose domicile and inspiration were to be 
 found at the seat of government. This was the beginning of that re- 
 form in the judicial establishment of New York which consists in 
 decentralizing or rather localizing all the courts of first instance, 
 thus constituting them county rather than State tribunals. 
 
 In 1823 an act was passed authorizing the circuit judges to hold 
 Cfturts of Equity; it was soon repealed and the power restored to 
 the chancellor, but the circuit judges were to act as vice-chancellors 
 within their circuits. In the year 1826, in the first district, embracing 
 the city of New York, equity jurisdiction was conferred on a legal 
 officer termed the vice-chancellor ; for in this district the volume of 
 litigation demanded an increase in the number of judges. From time 
 to time other coadjutors were in like manner appointed. By an act 
 of 1823, 1 the Court of Probates, founded in 1778, was abolished, and its 
 original probate jurisdiction was transferred to the surrogates of the 
 various counties, but subject to an appeal to the chancellor, who was 
 invested with the residuum of the jurisdiction of the Court of Pro- 
 bates not otherwise delegated. 
 
 We come next to one of the most important reforms instituted under 
 the second constitution — the Revised Statutes. Before treating of 
 this celebrated work, let us review for a moment the prior revisions 
 of the statute law of the State. The first revision was the joint work 
 of Samuel Jones and Richard Varick, and was effected under an 
 act passed in 1786. The second revision of the acts of the State 
 legislature was undertaken as a private or commercial venture by 
 Thomas Greenleaf. The second edition of Greenleaf's work brought 
 the revision of the State laws to a period nine years later than that 
 of Messrs. Jones and Varick, and as it was recognized by the courts as 
 a faithful work, it received a judicial sanction, accorded to no other 
 private edition of laws, excepting perhaps the "Webster publications 
 from 1802 to 1812 inclusive. The next revision of the laws was under- 
 taken by Justices Kent and Radcliff, pursuant to an act of the legis- 
 lature; 2 this soon became the corrected version of the public and 
 private acts of the State. This revision simply omits the laws or parts 
 of laws abrogated, and pursues a chronological arrangement of the 
 first volume and a subject arrangement of the second. The new re- 
 vised laws of 1813 next superseded Kent and Rad cliff's revision. By 
 an act of the legislature, 3 William P. Van Ness and John Woodworth 
 were directed to arrange the laws of a general and permanent nature 
 
 1 Chapter 70. a Chapter 190, Laws of 1801. 3 Chapter 150, Laws of 1811 ; 
 Chapter 195, N. R. L. of 1813. 
 
138 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 systematically in divisions under proper heads, with such marginal 
 notes as appeared to be best calculated for public information. As 
 the revision of Jones and Varick was the first of the State revisions 
 in point of time, so that of Van Ness and Woodworth was faeile 
 princeps in point of method and arrangement ; the marginal notes, 
 prepared by John V. N. Yates, and included in the revision of 1813, 
 are among the most valuable expositions of the laws of this State ; 
 they oftentimes, by enumerating the various English and colonial acts 
 which contained like provisions, embrace a succinct history of the 
 statutes to which they refer. Even at the present day the history of 
 many legislative measures may be more easily gathered from this 
 revision than from any other single work, and it remains a profound 
 example of faithful professional service. 1 
 
 CITY HALL AND CITY HALL PARK IN 3612. 
 
 The revisers of 1813, imitating the example of Messrs. Jones and 
 Varick, did not include in their revision the colonial acts which re- 
 mained ■ in force under the 35th section of the State constitution. 
 Printed as an appendix to the revision of 1813 are to be found several 
 acts of the colonial assembly which the revisers thought would be 
 useful to the profession. Among these is the " Charter of Libertys " 
 enacted by the first regular legislature of New York in 1683 ; the 
 Ordinances of Lord Bellomont and Viscount Cornbury — continuing the 
 Supreme Court of New York after the act of the legislature passed in 
 1891 had expired by limitation— are also included in such appendix. 
 As illustrating several questions concerning the former provincial law of 
 inheritances, which long retained some elements of the Dutch juris- 
 prudence, the revisers appended also the Articles of Capitulation 
 between the Dutch and English, signed in 1664. They might, with 
 
 1 See. however, the commentary on the revision of 1813 by Samuel Jones, co-author of Jones and Varick's 
 Revision (N Y. Historical Society's Co]., HI,), 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 139 
 
 equal propriety, have included in the appendix the definitive treaty of 
 peace between Great Britain and the United States in 1783, for it 
 was, with unusual particularity, made a fundamental part of the State 
 law by an act of the legislature, passed in 1788, 1 repealing all acts and 
 parts of acts which conflicted with the treaty in question. 
 
 To recur to the revision under the second constitution of the State. 
 In the year 1823, and again in 1824, Governor Tates directed the 
 attention of the legislature to the condition of the statute-book of 
 the State, and recommended a revision on account of the changes 
 made in the law by the constitution of 1821-3, and the very confused 
 and scattered situation of the statutes. 2 Obedient to the governor's 
 suggestion, an act was passed, at the following session of the legis- 
 lature, 3 for the purposes indicated. This act of 1824, though soon re- 
 pealed, is important as the precursor of the Revised Statutes. The 
 revisers designated by it were of very different types of thought. 
 Chancellor Kent was selected as the exponent of the traditional school 
 of law ; Erastus Root, the lieutenant-governor, as the most radical of 
 the reforming lawyers. Benjamin F. Butler, then a young lawyer 
 associated with Martin Van Buren, was the third reviser under this 
 act. By the act of 1824, the revisers were authorized and directed, 
 among other things, to collect and to reduce into proper form all acts 
 of the legislature then in force, omitting all the acts repealed, and re- 
 ducing the various acts upon the same subject to acts of one chapter 
 each ; they were also to report to the legislature the defects in the 
 existing laws. Two years were allowed for the contemplated revision, 
 which, like its predecessors of 1802 and 1813, was to be little more 
 than an orderly arrangement of the statutes then in force, with a 
 proper index for more convenient use. 
 
 Chancellor Kent, for reasons easily perceived from the reports of 
 the constitutional convention of 1823, refused to act with any one 
 else ; and the governor designated, in his stead, John Duer. There 
 seems to have been little or no sympathy existing between General 
 Root and his associates, Messrs. Duer and Butler, who, quite inde- 
 pendently of their colleague, submitted the plan of the revision which 
 they deemed to be the most suitable. 4 Meanwhile General Root had 
 been proceeding on his own account with the revision of the laws re- 
 lating to taxation and highways. 
 
 During the legislative consideration of Messrs. Duer and Butler's 
 proposed amended bill giving larger scope to the revisers, the name 
 of Henry "Wheaton was substituted for that of Erastus Root. The 
 senate non-concurring in this particular amendment, a compromise 
 was attained by directing compensation to be given to General Root 
 
 1 Chapter 41. 2 " Assembly Journal," 1824, p. 9. 3 Chapter 336, Laws of 1824. 
 4 See Appendix D, "Journal of Assembly," 1825. 
 
140 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 for his services in the matter. 1 The amended bill then became a law. 2 
 In their suggestions to induce the legislature to enlarge the scope of 
 the revision, Messrs. Butler and Duer stated, among other things, that 
 they conceived that not only a reduction of all the laws on the same 
 subject into chapters was necessary, but also an entire new arrange- 
 ment of the existing statutes. This they thought would reduce the 
 statutes then in force to half their extent ; it would render them so 
 concise, simple, and perspicuous as to be intelligible not only to pro- 
 fessional men, but to persons of every capacity ; it would relieve the 
 statutes from obscurities, lead to an easy reference by proper indexes, 
 and greatly facilitate the acquisition of the law as a science. Lastly, 
 it would supersede the necessity of all future revisions, and prepare 
 the way for a scientific codification of the law. Utopian as the scheme 
 then seemed, it nevertheless led to what may be called the most 
 brilliant achievement ever then performed upon the text of the 
 English common law. It is even highly probable that future revi- 
 sions might long have been dispensed with, had the revisers' plan 
 been carried out, and had each new act, as passed, been assigned to 
 its appropriate chapter, by some person or persons whose duty it 
 was to prepare the session laws for publication. That the revision 
 led to codification may well be believed, for even Jeremy Bentham, 
 in a letter to Livingston of Louisiana, approved of the work. 
 
 But to follow the inception of this great revision. The act of 1825, 3 
 thus amending the original act of 1824, reappointed Mr. Butler, added 
 the governor's appointee, Mr. Duer, and » substituted Mr. Wheaton, 
 afterward the distinguished publicist, for General Boot in the corps 
 of revisers. That the substitution of Mr. Wheaton added much to the 
 philosophic conception and character of the work ought not to be 
 doubted ; but greater praise is due to the other revisers, for they, with 
 Mr. Spencer, completed the whole work with a lucidity and a felicity 
 of expression at that time unparalleled in the history of statutes com- 
 posed in the English tongue. 
 
 The act of 1825 empowered and directed the revisers to collect all 
 public acts in force at the end of the forty-eighth session (1825), and 
 to reduce and consolidate into one act all the different acts relating to 
 the same subject, distributing them under such titles, divisions, and 
 sections as they thought proper, but omitting all acts and parts of 
 acts repealed or expired by limitation. In every other respect the 
 revisers were to complete the revision in such a manner as to them 
 seemed most useful and proper to render the revised acts more plain 
 and easy to be understood. From time to time they were to report 
 the revision to the legislature, to be reenacted if that body saw fit. An 
 important feature of the act of 1825 was the advisory power it con- 
 
 1 "Assembly Journal," 1825, p. 1173. 2 Chapter 324, Laws of 1825. 3 Chapter 324. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 141 
 
 ferred on the revisers, who were to suggest to the legislature all such 
 changes as they, deemed expedient in the statute law of the State. 
 Two years were allowed by the act to complete the revision. 
 
 In the year 1826, the revisers, Messrs. Butler, Duer, and Wheaton, 
 mapped out more completely the plan of the revision, and classified 
 the statutes to be revised. They 
 finally determined upon dividing 
 the work into five principal divi- 
 sions, as follows: The first part to 
 contain those acts which related to 
 the territory, the political division, 
 the civil polity, and the internal 
 administration of the State ; the 
 second part, those acts which re- 
 lated to real and personal property, 
 the domestic relations, and to all 
 matters generally connected with 
 private rights; the third part to 
 contain the statutes relating to the 
 judicature branch of government 
 and to the procedure in civil cases ; ^ 
 the fourth part to be concerned ,/£-=> 
 with the statutes relating to crimes, 
 punishments, and to the mode of procedure in criminal cases, and to 
 prison discipline ; and the fifth part with the laws relating to cities, 
 villages, and other corporations. 
 
 The first and fifth parts of the Revised Statutes, relating to the ter- 
 ritory, the political divisions, the civil polity, and the internal admin- 
 istration of the State, are of the least interest in a purely juristic or 
 scientific phase of the revision ; but they were of great utility. 
 
 There is little doubt that the general and comprehensive plan of the 
 whole revision of 1829 had the valuable cooperation of Mr. Wheaton. 
 The first part of the Revised Statutes was the work of Mr. Wheaton, 
 Mr. Butler, and Mr. Duer ; but before this part of the revision was 
 acted on by the legislature, Mr. Wheaton was sent abroad in a diplo- 
 matic capacity, and Mr. John 0. Spencer took his place. After Mr. 
 Spencer's appointment considerable additional labor was bestowed on 
 the part already prepared; and it may be said, therefore, that the first 
 
 «z--. 
 
 Uosiah Ogden Hoffman was a distinguished 
 lawyer, and was the father of Murray Hoffman, 
 the jurist and author of several works on chan- 
 cery and ecclesiastical law; of Ogden Hoffman, 
 the gifted orator and lawyer, who was counsel in 
 almost every prominent criminal case in New- York 
 city for twenty-five years, and who had been a 
 member of Congress, U. S. district attorney, and 
 
 State attorney-general; and of Charles Penno 
 Hoffman, the accomplished man of letters. Mr. 
 Hoffman was a warm friend of Washington 
 Irving, who studied law in his office. It was to 
 his daughter Matilda that Irving was engaged. 
 When he died, her Bible, containing a lock of her 
 hair, was found under his pillow. 
 
 Editok. 
 
143 
 
 HISTORY OP THE BENCH AND BAR OE NEW YORK 
 
 part of the Eevised Statutes was the work of four revisers, and not 
 of three, as originally contemplated. 1 
 
 While the revisers in their general arrangement mainly adopted the 
 system employed in Blackstone's Commentaries, and took the titles of 
 the various chapters of the revision from that celebrated work, yet 
 they made discriminating changes and avoided some errors made by 
 Blackstone himself, notably his division of the jus privatum into 
 " rights of persons and rights of things," criticized by Austin, — things 
 being incapable of rights and a mistranslation of the phrase of the 
 civilians, "jus rerum." No opponent of Blackstone has ever denied 
 that his arrangement was eminently practical. The revisers could 
 not, therefore, have taken a plan more familiar to lawyers than this, 
 and it added to the success of the work. 
 
 If we except the Statute 12, Oar. II., ch. 24, converting most of the 
 feudal tenures in England into free and common socage, and sound- 
 ing the knell of the entire feudal system, Part II of the Revised 
 Statutes of New York embodied the most important reforms ever 
 made by a single statute in the historic land law of an English-speak- 
 ing people. 2 
 
 1 See Senate Journal, 1827, p. 32 ; Revisers' Re- 
 ports to the Legislature with chapters 9 and 19 of 
 the first part. 
 
 2 The better to note some of the more important 
 changes introduced in the land law of New York 
 by the revisers, in the second part of their revi- 
 sion (the first three chapters of which are devoted 
 to this subject), we may briefly recall the condi- 
 tion of this branch of our jurisprudence prior to 
 this revision. Charles II. , with what right pre- 
 viously inquired, granted the territory occupied 
 by the Dutch of New Netherland, and much more 
 adjacent, to the Duke of York by letters patent, 
 dated March 12, 1664, and subsequently by letters 
 confirmatory, dated in 1674. By both these patents 
 the tenure of the province was " as our Manor of 
 East Greenwich in our county of Kent, in free 
 and common socage, and not in capite, nor by 
 knight's service." At the date of the first patent, 
 the Statute 12, Car. II., ch. 24, had already swept 
 away most of the burdens of feudal tenures in 
 England. The socage tenure in 1664 remained 
 subject only to the feudal incidents of relief, rent, 
 fealty, and escheats. As thus modified, the socage 
 tenure was introduced in New York. The rent in- 
 cident to it was a quit-rent of trifling value (some- 
 times, in New York, a bushel to the hundred acres, 
 but in 1732 the surveyor-general's report puts it at 
 2s. Gd. for the same quantity) ; the relief payable 
 by the heirs on the ancestor's death was the equiv- 
 alent of a year's quit-rent, while the oath of fealty 
 was commonly never exacted, and escheats were 
 no more burdensome, in practice, than at the pres- 
 ent time. After the English conquest the former 
 Dutch inhabitants generally renewed the titles to 
 their lands by taking out new patents, which re- 
 cited the Dutch ground-brief and confirmed the 
 possession of their lands, to be held of the ducal 
 proprietor in free and common socage. The new 
 
 inhabitants took out their patents from the duke's 
 agents in one of the prescribed forms of convey- 
 ance. Subsequent to 1664 the modified socage ten- 
 ure alone existed in New York. It will be recalled 
 that, on the Duke of York's accession to the throne, 
 his private estate in the province was merged 
 in the crown, and he became seized thereof jure 
 coronce. On the abdication of James II., the prov- 
 ince of New York pursued the line of devolution 
 prescribed by the act of settlement, the crown pos- 
 sessions and the crown being concomitantia. The 
 duke's estate before he ascended the throne was 
 in the nature of a feudatory principality ; after the 
 merger it became a royal province, transmitted 
 secundum jus coronm, and thus it remained until 
 the war of independence. 
 
 Comparatively recently it was made a debatable 
 question whether the statute quia emptores, prohib- 
 iting subinfeudation, was in force in the province 
 of New York ; and the revisers seem erroneously to 
 have thought not (see 3 R. S., 565, 2d ed., Rev. 
 Notes), and the Court of Appeals, in the case of De 
 Peyster v. Michael (6 N. Y. , 503), assumed the same 
 thing. But in a later case (People v. Van Rensselaer, 
 9 N. Y., 338) Judge Denio doubted the correctness 
 of the conclusion, and in the still later case of Van 
 Rensselaer v. Hayes (19 N. Y., 74) he demonstrated 
 the absurdity of the conclusion that the statute was 
 not generally in force in the province of New York. 
 The fact is one of considerable importance; for if 
 this statute was not in force, a necessary conse- 
 quence was that the feudal system flourished here 
 during the entire English dominion, and for ten 
 years subsequent (or until the statute was enacted 
 in Jones and Varick's revision), with a vigor en- 
 tirely unknown to contemporary England. The 
 obvious error that this statute was not in force 
 seems to have arisen by reason of not distinguish- 
 ing between the manors and the residue of the 
 
HISTORY OF THE BENCH AND MB OP NEW YORK 
 
 143 
 
 Although the law of real property remained a difficult branch of 
 legal science, yet the revisers of 1829 did much to rid it of many 
 subtleties which had been fused on it by the political and social pro- 
 cesses through which the common law had passed. The reform in 
 question was accomplished not so much by the introduction of new 
 rules of law, as oy the judicious selection and application of the 
 wisest of the old rules, and by the total repeal of mere scholastic 
 subtleties. 
 
 The cardinal reform of the Eevised Statutes concerning lands did 
 not consist so much in shortening the period during which the power 
 
 lands in the province. . The erroneous presump- 
 tion was that, hecause manors existed here, the 
 statute was not in force, whereas by the common 
 law, non obstante the statute, the king might grant 
 the right to his tenants to alienate lands to be 
 holden of the tenant, and thus create a manor, 
 where the lands were not in tenure prior to 18 
 Edw. I. The lands in New York not embraced 
 in the manor grants were within the statute, and 
 could not he aliened to he held of other lord or 
 person than the king. In short, every sub-aliena- 
 tion of those lands in New York, not situated 
 within the manors, placed the new tenant in the 
 same position toward the king, the lord para- 
 mount, as that occupied hy the grantor. 
 
 During the entire colonial or provincial period, 
 lands in New York were theoretically subject to 
 the same laws as socage lands in the royal manor 
 of East Greenwich, in the county of Kent, in Eng- 
 land. In point of fact, such lands were almost en- 
 tirely exempt from the nominal rents on which 
 they were holden of the crown. It must not be 
 forgotten that formerly no such thing as an abso- 
 lute ownership of socage lands was known ; the 
 tenant had only an estate in them. This estate, 
 without alluding to the more subtle distinctions, 
 was either f.n estate for years, for life, an estate 
 tail, or in f 'je simple, the latter being far from ab- 
 solute in the eyes of the feudalists. The method 
 of transmitting title to socage lands in New York 
 was, uo'cil some time subsequent to the war of in- 
 dependence, in accord with the method in vogue 
 in England, whether by descent (the law of pri- 
 mogeniture being in force here until the year 1782) ; 
 hy purchase, in its generic sense as well as in 
 its Jimited sense ; by deeds of feoffment with liv- 
 ery^ of seizin, by lease, by exchange at common 
 law, by partition, by releases, by defeasance, by 
 dovise, and all conveyances operating by virtue of 
 the statute of uses. In addition to these modes, 
 alienations by matters of record, such as fines and 
 recoveries, until the abolition of estates tail in 
 '1782, and even subsequent (see 2 J. and V. , p. 84 ; 
 c. 250, Laws of 1827), were not unknown in New 
 York, as is shown by Mr. Wyche's work on the 
 "Theory and Practice of Fines," one of the first 
 law books written and published in New York. (It 
 was published in 1794.) Of the conveyances by 
 force of the statute of uses, that kind termed lease 
 and re-lease was most commonly employed in New 
 York prior to the revision of the English statutes 
 by Jones and Varick in 1788, when the mode 
 termed bargain and sale became most prevalent, 
 
 and so continued until the Revised Statutes in 
 1830. Alienation of lands by devise, attested un- 
 der the statute Car. II., was commonly em- 
 ployed in New York from the very foundation of 
 the English government of the province. Among 
 the earliest English laws of New York we find 
 distinct recognition of wills. The adoption of the 
 English law of wills introduced the intricate com- 
 mon-law rules relating to executory devises. Yet 
 of all the intricacies relating to the common law, 
 those concerning executory devises were among 
 the most rational, for they arose out of a most 
 candid effort to effectuate the intentions of devi- 
 sors. Therefore, when the revisers of the statutes, 
 appointed after the second constitution, came to 
 select rules relating to certain future interests in 
 lands, they gave the preference to those rules and 
 principles of the common law which were applied 
 to executory devises, rather than to those relating 
 to future uses and contingent remainders. 
 
 The establishment of the State government in 
 1777 made but formal changes in the tenures of 
 New York and in the law of real property. In- 
 deed, it may be said that until the Re vised Statutes 
 the changes effected in the provincial jurispru- 
 dence relating to land were but slight in compari- 
 son to those then introduced. Among the more 
 marked changes effected before the Revised Stat- 
 utes were the following: A resolve of the pro- 
 vincial convention transferred the seigniory and 
 escheats and all lands, together with the quit-rents 
 due to the crown, to the State m nomine. This 
 statute was further confirmed by an act of the 
 legislature recognizing the people, passed in 1779 
 (14, 1J. & V., p. 44; 56 N. Y., 503). In 1782 the 
 first of the statutes affecting the antecedent law 
 of real property was passed (ch. 2, Laws of 1782), 
 Estates tail were altered into estates in fee sim- 
 ple, the law of primogeniture was abolished, and 
 the canon of descents was made to conform to the 
 more democratical institutions. In 1786 the stat- 
 ute abolishing entails and changing the course of 
 descents was reenacted, but with this difference : 
 estates tail were converted into estates in fee sim- 
 ple absolute, thus avoiding any question as to 
 whether the statute of 1782 had not intended sim- 
 ply to change estates in fee tail into conditional 
 fees, as they had existed in England prior to the 
 statute de donis. It is sometimes supposed that 
 when that portion of the statute law of England 
 which extended to New York was revised by 
 Jones and Varick, some new principles affecting 
 the law of real property were introduced. This 
 
144 
 
 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 of alienation might be suspended, as in the repeal of purely arbitrary 
 technicalities and in substituting therefor uniform and rational pro- 
 visions. Under the Eevised Statutes almost any limitation, artificial 
 or inartificial, was valid if it didUot contravene some well-known 
 principle of public policy, or the n^ rule against perpetuities ; a fee 
 might be mounted on a fee as f reelf by deed as by executory devise ; 
 a freehold estate might be created P commence at a future day; an 
 estate for life might be created in I a term of years, and a valid re- 
 mainder limited thereon ; a remainder of freehold might be created 
 expectant on the determination of \a term of years, provided only 
 that such limitation in no way transcended the rule against perpe- 
 
 supposition, however, is incorrect; no new prin- 
 ciples affecting this branch of jurisprudence were 
 enacted, and all that Jones and Varick did was to 
 select the English statutes which they deemed in 
 force in New York after the adoption of the first 
 constitution. The legislature, then, in order to 
 reduce a doubtful question to certainty, repealed 
 the residue not so selected for reenactment, by de- 
 claring their force to be at an end (2 J. & V., 282). 
 
 The statute abolishing entails was not a reform 
 of such great importance as it is sometimes es- 
 teemed, for entails might be broken and lands ren- 
 dered alienable by the tenant of the freehold's 
 suffering a fine, or common recovery, thus barring 
 the entail, reversion, or remainder, and converting 
 the estate into one in fee simple. The force of 
 tbe New York statutes converting estates tail into 
 estates in fee simple, like all statutes attempting 
 reforms without complete reference to collateral 
 results, was greatly circumscribed by the evident 
 desire of the courts to support the limitations 
 over, in some cases of wills, as an executory devise, 
 so as not to defeat the remainder. In this effort 
 the courts made a distinct departure from the for- 
 mer common law ; and in order not to effectuate 
 the statute to its literal extent, they held that cer- 
 tain words, before creating an estate tail, did not 
 now create an estate tail, which would have been 
 converted into a fee in the first taker, and, there- 
 fore, that the limitation over on the death of the 
 first taker, without issue, was good as an execu- 
 tory devise. (Uohns.,440; 3id.,292; 11 id., 337; 
 16 id., 382, Medcef Eden's case.) 
 
 Prior to the Revised Statutes socage lands might 
 be rendered inalienable for an uncertain period by 
 vesting the title to them on contingencies after 
 the creation of a short precedent estate. By an 
 ingenious invention of the conveyancers, through 
 the medium of trustees, to support contingent 
 remainders, the contingent interests could not 
 thereafter be barred as formerly. Contingent 
 remainders might be created by any mode of 
 conveyance. The methods of rendering lands 
 inalienable were by the technical methods styled 
 secondary, springing, shifting, or future uses and 
 executory devises, and those known to the chan- 
 cery bar as express trusts in lands. Under the 
 extremely technical rules employed, limitations 
 might be valid in one instrument, and invalid if 
 put in another. The whole learning was occult, 
 and historically denoted the contest in England 
 between the great landowners who desired to per- 
 
 petuate their estates, and the commons who de- 
 sirc^ *° ren der real property merchantable and 
 alie uaD ' e an< ^ *° av °id perpetuities. In the course 
 f yiis conflict, whenever Parliament passed a re- 
 medial act, the twblesse de la robe of England, 
 with the assistance of the Aristotelian logic and 
 the t' ourt °f Chancery, invariably defeated the 
 full e5* en * °^ tne remedy. Covered with scholia, 
 and kno^f 11 to on '3 r tne mos ' intellectual members 
 of the bar tltS English law of real property was 
 in practice a^erf labyrinth delightful only to its 
 guardians, although 4t nad become by 1826 very 
 systematic and greK^y improved. In this year 
 the New York law of\ reaI property had theoreti- 
 cally attained to the sa^P e advanced stage of de- 
 velopment as that of Eng. land - xt was capable of 
 becoming a horrible burcbP 11 for the new state > 
 and when the young revisv?" 13 approached their 
 task, the black-letter lawyers; who had learned a 
 recent lesson in the constitution 1 convention of 
 1821, made little or no effectual 6!J tcr y against the 
 reforms proposed. \ 
 
 Having very briefly and inadequacy intimated 
 the condition of the land law of Ne w York when 
 the revisers approached it, we may now assume 
 that it was substantially the English law relative 
 to the English tenure in free and comi 11011 socage 
 as modified by a few statutes of the\ province 
 which had become singularly inaccessibly or had 
 fallen into disuse. Premising that the -"evisers 
 procured the repeal of all the province s' ;a * ,1 '' es 
 (Subdivision 4, Sec. 554, c. 21, Laws of 182§)» tne 
 Revised Statutes declared that the people o^ * ne 
 State, in their right of sovereignty, possd ssed 
 the original and ultimate property in and td au 
 lands within the jurisdiction of the State. ^ s " 
 cheats were made to follow this ultimate propi ie " 
 torship, though all lands were declared allodial. I* 
 has been argued by very learned lawyers that, ; ls 
 long as escheats survived, this change effected n D 
 substantial reform, and that the very terminology' 
 of the Revised Statutes involved the entire ante- 
 cedent law relating to the socage tenure. Although 
 this is logically true, the real changes effected miti- 
 gated the rigor of the common law of escheat by 
 providing that escheated lands should he subject 
 to the same trusts and encumbrances which they 
 would have been subject to had such lands not es- 
 cheated. The revisers retained the rights, pow- 
 ers, and duties of socage guardians, but vested 
 them in a different class of persons, wisely chang- 
 ing the common-law rule that the guardianship 
 
HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 145 
 
 tuities. Even contingencies double, treble, or manifold, probable or 
 improbable, might, if they did not cause a perpetuity, be the basis of 
 limitations. 
 
 Other changes in the antecedent law were made by Article 1 of 
 Title 2, Chapter 1 of Part II. 1 
 
 Enough has been said to indicate the scope of the change effected 
 by the revisers. While the work as a whole purported to be a re- 
 vision of existing laws, the term " revision " covered a multitude of 
 reforms, and modified large parts of the common law declared to be 
 part of the law of the State by the constitutions of 1777 and 1821. 
 
 The modifications which the revisers made in legal estates in lands 
 
 shall belong to the next of kin to whom the inher- 
 itance could not by any possibility descend, so as to 
 enable nearrelations to become guardians of the in- 
 fant possessors of lands. The wisdom of the com- 
 mon-law rule had been impeached long before by 
 Lord Chancellor Macclesfield. In Article 2 of Part 
 H of the Revised Statutes, the revisers saw fit to 
 perpetuate the rule of the common law, founded 
 entirely on feudal reasons, that only citizens 
 should hold lands within the State, though they 
 modified the rigor of the rule somewhat in favor 
 of persons about to become citizens. The wisdom 
 of retaining any part of the disability in question 
 may be doubted at this day, when land has be- 
 come merchantable property, and the duties of its 
 owners to the State do not differ from those of the 
 owners of personalty. 
 
 The second title of Chapter II introduced the 
 most considerable changes in the law of real prop- 
 erty. The revisers, however, retained the estab- 
 lished terms defining the quantity of interest 
 persons might have in immovable property, al- 
 though in some instances they converted particu- 
 lar terms from species to genera : the force of the 
 term remainders was extended so as to include 
 future and contingent uses, as well as contingent 
 remainders. Notwithstanding the abolition of ten- 
 ures, every estate of inheritance continued to be 
 designated either a fee simple, or a fee simple ab- 
 solute, thus preserving the former distinction be- 
 tween limited or conditional fees and fees absolute 
 at common law. The statute, first passed in 1782, 
 converting estates tail into fee simple, was reen- 
 acted, but the revisers remedied the hardship of 
 the original statute by which a remainder limited 
 upon an estate tail was cut off, even though the 
 first taker or tenant in tail died without issue 
 living at his death. 
 
 One of the most considerable changes in the 
 antecedent law effected by the Revised Statutes, , 
 related to the period during which the power of 
 alienation might be suspended. The common-law 
 period was reduced from any number of lives in 
 being, and an absolute term of twenty-one years, 
 and a fraction for gestation, to two lives in being ; 
 but the Revised Statutes permitted a valid contin- 
 gent remainder, to take effect in case this second 
 life die before attaining majority, or the estate 
 was determined in any other way before the ma- 
 jority of the second life. This reform, though 
 apparently slight, was really a considerable inno- 
 vation; lives alone became the standard of sus- 
 
 pension, and no absolute term, not even a day or 
 an hour, might intervene. The new period of sus- 
 pension now amounted to the longest of two lives 
 in being, and, in a single case of actual infancy, 
 the period of minority in addition. At a subse- 
 quent judicial interpretation of this new rule in 
 which they took part, the revisers do not seem to 
 have been entirely clear as to what the exact ob- 
 ject of the statute really was. In the leading case 
 of Coster v. Lorillard, they argued that the new 
 rule ought to be applied to executory limitations 
 of a contingent character only, and not to vested 
 remainders which did not suspend the power of 
 alienation. The court of last resort, as it was then 
 composed, had a good proportion of laymen, and 
 the new rule was ultimately applied to all future 
 estates in lands, vested and contingent alike. It 
 is difficult to perceive how the court could have 
 decided otherwise, in view of the section which 
 provides for the acceleration of remainders, in 
 all cases where the estate is limited on more than 
 two successive estates for life, to persons in being 
 at the creation of the estate. Yet the other con- 
 struction was stoutly contended for by some per- 
 sons eminent in the legal profession. (See V.-Ch. 
 McCoun's opinion, 5 Paige, 170-198.) 
 
 IThe famous common-law rule now associated 
 only with Shelly's case was abrogated, and, ac- 
 cording to the real intention of the donor when 
 the remainder was limited to the heirs of a person 
 to whom a life estate in the same premises was 
 given, the heirs, by the Revised Statutes, took as 
 purchasers. The rule in Shelly's case had origi- 
 nal reference in England to the political struggle 
 against perpetuities, and its longer existence was 
 now rendered unnecessary in New York by reason 
 of the very clear rule on the subject of perpetu- 
 ities. The accumulation of the profits of lands 
 was controlled so as not to permit a repetition of 
 Thelluson's ease (4 Vesey, 221 ; 11 id., 112) ; and as 
 the New York law was not, of. course, affected by 
 the British acts 39 and 40 George III., an en- 
 tirely new provision was introduced : the revisers 
 confined the accumulation of the profits of lands 
 to the single case of an infant owner or beneficiary, 
 and tolerated it in no other ease. Many other 
 minor provisions, confirming the general scheme 
 of the statute, were revised and incorporated by 
 the revisers in the revision ; but in a general com- 
 mentary on the subject it is impossible to refer 
 to all of them. 
 
146 HISTORY OE THE BENCH AND BAK OF NEW TOKK 
 
 having been noticed, we may point out some of the changes which 
 they instituted relative to uses and trusts, cognizable in the Courts 
 of Equity of New York from the inception of the English rule. 
 Although prior to the Revised Statutes the exigencies of society here, 
 as fortunes were then more limited, had not made any very great de- 
 mands on the English law of trusts, yet by reason of the constitu- 
 tional definition of the fundamental law of New York, the English 
 law of uses and trusts was assumed to be in full force and vigor 
 in the State. It was in consequence open to like objections, which 
 prior to the Revised Statutes had been very fully discussed in Eng- 
 land by an advanced thinker, a barrister of Lincoln's Inn, Mr. Hum- 
 phreys, who had outlined a scheme of reform of the socage tenure, 
 and made some very practical suggestions. Our revisers certainly 
 had the benefit of his scheme, though they did not always follow it 
 to its logical conclusion, with diverse opinions as to the result. The 
 law of uses and trusts had grown up in England from a species of in- 
 direct legislation, sometimes called the English jus honorarium from 
 its likeness to the pretorian legislation of Rome. The reforms in the 
 branch of the New York law contemplated by the revisers were 
 materially assisted by the popular hostility to the extended judicial 
 power of the chancery, already noticed. The Statute of Frauds 1 had 
 put an end to secret trusts, and required all trusts in lands to be in 
 writing; and subsequent to this the learning on this subject had be- 
 come fairly systematic. The Revised Statutes abolished all charitable 
 and pious uses and all simple or passive trusts, and saved only four 
 classes of active or special trusts, called " the statutory trusts." 2 Most 
 of the former active trusts, however, survived the revision as powers 
 in trust, while some former trust powers were enumerated as express 
 trusts. 3 
 
 The scheme of the reform intended was the abolition of all passive 
 trusts in lands, the restriction of the lawful special trusts to fewer 
 purposes, the abolition of secret resulting trusts in favor of persons 
 paying the consideration, and lastly to cause the legal title to devolve 
 according to the canon of descents in a greater number of instances 
 than formerly. In the application of the revisers' scheme to the ac- 
 tual work of revision, many minor sections contribute to the result. In 
 the abolition of former trusts several things were to be accomplished, 
 such as the consistent devolution of the legal title in cases where 
 formal or other unlawful trusts were attempted to be created or then 
 existed. Every avenue for a continuance of formal trusts was skil- 
 fully closed by the revisers, and in cases where the special trust pur- 
 pose was converted into a statutory power, it was provided that the 
 legal title, as it was not a necessary adjunct, should pursue that line 
 
 1 29 Car. II. 8 2 N. Y., 307. 3 12 N, Y., 403, 
 
HISTORY OF THE BENCH ATSID BAR OP NEW YORK 147 
 
 of devolution it would have pursued had there been no "power" 
 affecting it. For abundant caution all executed uses in possession 
 were confirmed so that the revised statutes of uses and trusts should 
 not be retroactive. The adjective law of trusts was not affected by 
 this article of the revision ; it naturally belonged to a more extensive 
 work, which should include procedure. 
 
 The revisers had not only to effect the reforms mentioned, but they 
 had to harmonize the revised laws of uses and trusts with the revised 
 laws concerning legal estates; for the revision preserved those distinct 
 conceptions of property which the antinomy of the English juridical 
 system had introduced here r 
 
 The revisers had to some extent contemplated the destruction of 
 the former analogy between legal and equitable estates in lands. 
 They provided that the cestui que trust should no longer take an 
 estate in lands, and converted his right into an equitable interest 
 enforceable in chancery. This was, however, a verbal rather than a 
 substantial change; but in view of that clause of the Revised Statutes 
 preventing anticipation by the beneficiary interested in a trust for the 
 receipt of the rents and profits of lands, it certainly seemed logical to 
 term such a beneficiary right an " interest," and not an " estate"; for a 
 right that is not assignable bears little similarity to an estate which 
 is nomen collectivum, including the right to dispose of it. In some other 
 respects there is no longer a perfect analogy between the natures of 
 legal and equitable estates in lands. Legal life estates must be lim- 
 ited to persons in being, but trusts will inure to the benefit of per- 
 sons not in being when the trust is created. 2 
 
 Whether on the whole any great reform in the former law of trusts 
 has been produced by the Eevised Statutes, is an open question. A 
 new learning of trusts, founded on the revision, has certainly arisen, 
 
 1 In English jurisprudence the distinct concep- ogy between legal and equitable estates in land, 
 
 tions of legal and equitable interests in property Limitations beyond the legal trust period were 
 
 were soon discovered to be artificial, and a ten- now vitiated by statute. 9 N. T., 403. 
 
 dency to assimilate the two distinct interests be- 2 As the Revised Statutes restricted anticipa- 
 
 gan. This reactionary tendency ultimately pro- tion, many difficult questions involving the jus 
 
 duced striking analogies between legal and dispcmendi of an equitable estate (e. <?., 8 N. Y., 9) 
 
 equitable estates. An equitable tenant in tail ceased, although others, perhaps as difficult, have 
 
 could even alien Ms equitable interest by fine, succeeded them. Attempts to reach what is obvi- 
 
 and the courts talked gravely about the seizin ously a property right — the interest of a cestui 
 
 and deseizin of equitable estates. Subsequent to que trust in a permanent trust for the receipt of 
 
 the Revised Statutes some attempts to revive the the rents and profits of lands — have from time 
 
 former analogy between legal and equitable to time been attended with many embarrassments, 
 
 estates were made. Why, it was reasonably owing to the change in the law (31 N.Y., 9; 35 id., 
 
 asked, should the rule concerning the limitation of 361 ; 70 id. , 270). 
 
 legal estates now differ from the rules concerning The estate which the trustee took in all cases of 
 
 equitable estates or interests in lands ? In cases valid express trusts — though apparently enlarged 
 
 where a remainder in a legal estate was limited by the Revised Statutes, which declare that the 
 
 on more than two lives in being, such remainder, trustee shall be vested with the whole estate, in 
 
 by the section accelerating remainders, was pre- law and in equity, subject only to the execution 
 
 served. Why should this not be the rule where a of the trust — was in reality not extended at all. 
 
 perpetuity by way of trust was created antece- As before the Revised Statutes, the trustee's legal 
 
 dent to the remainder ? But the courts intimated estate was commensurate with the trust duty to be 
 
 that the Revised Statutes had destroyed any anal- performed ; and when the duty was performed, 
 
148 H1STOKY OP THE BENCH AND BAR OF NEW YORK 
 
 and the present law of uses and trusts, now as formerly, is to be 
 found in reported cases rather than in a statutory form. In the hands 
 of skilful, conveyancers, real property continued susceptible to very 
 subtle modifications and limitations. Whether this is a healthy con- 
 dition of the laws of real property, it is for the hustings and for our 
 statesmen to determine. Any of us is entitled to the opinion that it 
 were better had the revisers gone farther. It is not an interference 
 with the rights of property to abridge a power of testamentary dis- 
 position, and to destroy the power of accumulating overgrown or 
 ill-gotten fortunes by means of trusts. But on the whole the reforms 
 in the land law of New York conduced to simplicity and were a sound 
 reform. They have created a new learning founded on the statute, 
 but a learning much simpler than the old, yet on the whole still 
 susceptible of great improvement in the future. Such obscurities as 
 those relating to lineal and collateral warranties ceased by their abo- 
 lition. Landed property was rendered easily subject to the payment 
 of debts. The canon of descents, and many other matters relating 
 to real estate, were modernized and improved. Among the more im- 
 portant reforms embodied in Part II of the Revised Statutes, were 
 those concerning the law of wills, which the revisers reduced to much 
 simplicity. The laws relating to marriage in New York were in great 
 confusion prior to the Revised Statutes. This evil was also corrected, 
 and the law made plain and certain 1 
 
 Part III of the revision, relating to the courts of justice, was 
 generally declaratory, and, while of great practical utility, introduced 
 fewer novelties than the other parts by reason of the limitations im- 
 posed by the constitutions on this subject. Part IV, relating to 
 
 eo instanti, the trustee's estate ceased (3 N. Y., to recognize such distinct interests, notwithstand- 
 
 525 ; 43 id., 363), and oftentimes, by virtue of ing the subsequent abolition of the distinction 
 
 the statute, instantly devolved upon the person between the remedies correlated to these distinct 
 
 entitled to the next estate (3 N. Y., 535; 7 id., rights. 
 
 571; 10 id., 268 ; 34 id., 555), though in some cases 'There has been some discussion concerning 
 a trustee might still be compelled to execute con- the principal authorship of the first three chapters 
 veyances to the next eventual owner, just as the of Part II, involving the leading changes made in 
 donee of a power in trust might be. {In arguendo, the land law of the State ; but the general opinion 
 24 N. Y., 15.) of those most familiar with the subject — an opin- 
 The revisers made a radical change in the devo- ion borne out by the journals and legislative rec- 
 lution of the legal estate on the death of trustees, ords — is that Messrs. Spencer and Duer, in the or- 
 PriortotheRevisedStatutes the trustees might de- dernamed, were the responsible authors of these 
 vise the legal estate, or it might descend to their great changes. But they did not stop here. We 
 heirs cloaked in the trust. But this inconvenient know that Mr. Spencer carefully considered the 
 rule was wisely changed so that on the death of a scope of the entire revision ; for with his own hand 
 trustee the legal estate, in all cases, passed to the he wrote a commentary for the " Ontario Messen- 
 appropriate court of judicature, possessing chan- ger," pointing out the principal alterations made 
 eery jurisdiction. (44 N. Y., 249.) This canon of by the revisers in the common and statute law of 
 descents, if it may be so termed, had, however, no the State. As Mr. Duer was the oldest of the re- 
 application to trusts ex maUficio. (14 Wend., 176.) visers, being forty-three years of age, while Mr. 
 The Revised Statutes made no change in the ' Spencer was thirty-seven and Mr. Butler twenty- 
 equity power of the chancellor to remove trustees nine, the presumption, in the absence of proof 
 for cause. The peculiar distinction between equi- positive, is in accord with tradition and the indi- 
 table and legal interests in property not having cations of the public documents, which are cor- 
 been abolished, — '- even if its abolition were pos- roborative. 
 sible, — the courts have been obliged to continue 
 
HISTOEY OF THE BENCH AND BAR OF NEW YORK 149 
 
 criminal law, including a whole scheme of punishment and prison dis- 
 cipline, was very comprehensive in its character. While most of the 
 provisions of the criminal code were taken from the former statutes 
 of the State, some suggestions touching the penal law were adopted 
 from Livingston's justly celebrated " System of Penal Law for Loui- 
 siana," and some from the newer English reformatory acts introduced 
 by Mr. Peel, but never in force in New York. That portion of Part 
 IV which relates to prison discipline may be said to have introduced 
 too few of the humane reforms which had even then been recom- 
 mended by Edward Livingston of Louisiana, who was much impressed 
 with the suggestions of Jeremy Bentham, the great master of the 
 philosophy of legislation. The revisers announced themselves as 
 quite satisfied with the old system, and evidently were not impressed 
 by the advanced speculations of the theoretical writers. In this sin- 
 gle respect the Eevised Statutes of New York were notably faulty. 
 Several notes to the text, containing a brief outline of the changes 
 wrought by the Revised Statutes, have been inserted because such re- 
 vision constitutes an epoch in the law-making of the State. While 
 they purported to be a revision of old laws, they were more. After 
 they were enacted, all^the former laws of the old province made part 
 of the fundamental law of the State by the constitutions of 1777 and 
 1821 were also repealed. Thenceforth the corpus juris of New York 
 consisted only of the statute law of the State (the English statutes 
 having been previously recast and the residue repealed), and the 
 common law of England, as previously received and interpreted under 
 the province and State governments ; but even this was declared by 
 the constitution to be subject to such alterations as the legislature 
 should make 'in it. That the legislative power to alter included the 
 most sovereign power of change was not doubted. What the Eevised 
 Statutes best demonstrated was, that the common law of English- 
 speaking States and origin was susceptible of important statutory 
 modifications without the destruction of those essential principles of 
 growth which had been unfolded in the course of the history of the 
 English nation, and that such changes could be made by the ordinary 
 legislative machinery without a catastrophe to the body politic. Thus 
 the revision destroyed the fetish of the common law, while it showed 
 that the law itself was not elusive; and it pointed the way, followed 
 in many other States, to important changes in the private jural rela- 
 tions of America. Through it subsequent changes, not yet foreseen, 
 were involved and made easy, while the dead law of the past was 
 rendered the servant and not the master of the State. Though per- 
 haps too frequently and often unskilfully amended, the Eevised 
 Statutes of 1829 may be said to be still the chief source of the statute 
 law of the State. 
 
150 
 
 HISTOET OF THE BENCH AND BAR OF NEW YOKK 
 
 While the constitution of 1821 declared that the common law in 
 force in the colony on April 19, 1775, should continue to be the law 
 of the State, it did not abrogate the small residuum of the ancient 
 Dutch law left standing by that postulate of the common law which 
 gives effect to the laws of the conquered until abrogated. 1 Yet this 
 
 portion of the ancient Dutch law was 
 very slender and rather a rule of prop- 
 erty: the burden of proof was on the 
 proponent to show the particular insti- 
 tute of the Dutch law in force, as the 
 presumption was that the common law 
 controlled in the absence of such proof. 2 
 The adjudged cases give evidence of the 
 extent of this slight survival of Dutch 
 law. For example, in 1830, in the canal 
 cases, eminent counsel, including the 
 attorney-general, contended that the 
 Dutch law still determined the right of 
 certain riparian owners. 3 In 1817 even 
 Chancellor Kent, who, in a desire to in- 
 voke the entire ready-made system of 
 English law, often ignored the differ- 
 ences observed in the province of New York, 4 held that by the Dutch 
 law a grant to the inhabitants of Hempstead constituted them a cor- 
 poration. 5 Still later cases, such as Dunham v. Williams, 6 have given 
 effect to a particular rule of the ancient Dutch law. But the great 
 foundation of the unwritten or non-statute law, under the constitution 
 of 1821 as before, continued to be the common law received in the 
 province, as altered by the statutes of the State. What indeed was 
 technically meant by the use of the term "common law" — a term 
 ambiguous enough to denote at times either the jus non scriptum or 
 the entire particular jurisprudence of England' — has occasioned much 
 consideration by the more subtle-minded among the lawyers. On the 
 whole, the general and vague definition in Morgan v. King, 7 to the 
 effect that it meant the rationale rather than a particular institute of 
 English jurisprudence, is the most satisfactory. Yet so vague a defi- 
 nition could not be otherwise than an unsatisfactory basis for the 
 common law of a great State. 8 
 We have already noticed some of the changes effected by the con- 
 
 (S&fpunJ? Q.cXt£eUn- 
 
 i See Chapter XIV, Vol. I, p. 559 ; Chapter XTV, 
 Vol. II, p. 593. 2 Canal Cases, 5 Wendell, 446. 
 
 3 5 Wendell, 436; 17 Wendell, 571. 
 
 i See the late B. F. Butler's " Outline of the Con- 
 stitutional History of New-York," passim. 
 
 5 Denton v. Jackson, 2 Johns. Chancery, 320. 
 
 6 37N. Y., 251. 
 
 ' 30 Barb., 14; reversed on another point, 35 
 N. Y., 454. • 
 
 8 There is in existence an old English book called 
 "Tomlin's Eepertorium Juridicum," which, as it 
 is remembered, contains a list of all English deci- 
 sions down to the date of the battle of Lexington, 
 when the English cases ceased to be authoritative 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 151 
 
 stitution of 1821 in the greater among the ancient courts of New 
 York. With the exceptions indicated, they continued substantially 
 as before, 1 but the chancellor and judges under the new constitution 
 owed their- office to the appointment of the governor with the consent 
 of. the senate, instead of, as- formerly, to the council of appointment, 
 which this constitution abolished. In order to prevent a repetition 
 of the odium fastened on the judges by their State functions under 
 the first constitution, the new constitution provided that neither the 
 chancellor nor the judges should hold any other office or place of 
 public trust during their term of office. The Revised Statutes did 
 not attempt to define the jurisdiction of the Court of Chancery of 
 New York, which had never been very precisely defined. The act 
 of 1683, which has the credit of its erection, 2 gave it general equity 
 powers. The Revised Statutes declared the powers of the court to 
 be vested in the chancellor. How far the Court of Chancery of New 
 York was vested with the ancient jurisdiction of the English court 
 was discussed in the year 1810, in the most interesting case of Yates 
 v. People, 3 which involved a conflict between the chancellor and the 
 Supreme Court, and where it was held that the New York Chancery 
 possessed only those common-law powers of the court which in Eng- 
 land were exercised in the officina justitice, or that part from which 
 writs issued ex debito justitice, and that the chancellor of New York 
 possessed the powers exercised by the lord chancellor in that branch 
 of the English court called the Court of Equity in Chancery. 
 
 Under the constitution of 1821 the powers of the Supreme Court 
 continued substantially as under the crown, 4 and the Revised Statutes 
 declared this to be the fact. The jurisdiction of the minor courts of 
 the justices of the peace was, however, fixed by the Revised Statutes, 
 though the courts themselves were anciently in the province. The 
 county courts for common pleas also were ancient institutions, and 
 were only reorganized by the Revised Statutes. In some of the cities 
 of the State the common-law jurisdiction of the justices and county 
 courts have in this century for convenience been distributed among 
 municipal courts, such as the Courts of Common Pleas in New York 
 city, or the Marine Court of, the city of New York, which had also 
 jurisdiction of civil actions brought by seamen. The Court of Com- 
 mon Pleas in the city of New York is one of the most ancient of the 
 tribunals of the State. 5 The Superior Court of the city of New York 
 was erected in 1828, to have cognizance of local actions. 6 It owed its 
 establishment to the long-protracted conspiracy cases which grew out 
 
 here, and our own courts took up the ampliflca- 4 Graham's " Courts of New York," p. 141 (edi- 
 tion of the common law. tjon of 1839). 
 
 ' Chapter XIV, Vol. II, Memorial History. 5 See Chapter XIV, Vol. I, p. 551 ; Chapter XIV, 
 
 * 1 Hoffman'B " New York Chancery Practice," Vol. II, p. 595. 
 
 Chapter 1. 6 Laws of 1828, p. 141, c. 137 ; 3 Revised Statutes, 
 
 > 6 Johns., 337. 261. 
 
152 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 of the heavy bank failure in the city of New York in 1826, and clogged 
 the calendars of the Court of Common Pleas. Its jurisdiction was 
 statutory, and, unlike that of most of the other courts of New York, 
 was not defined by a cross-reference to some established jurisdiction 
 of a common-law court of England. Under the second constitution, 
 as under the first, the court for the trial of impeachments and cor- 
 rection of errors, constituted in the upper legislative house, like the 
 old Court of Appeals in the province of New York, had supreme 
 appellate jurisdiction in both law and equity. 
 
 Under the constitution of 1821 the practice in all the courts, both 
 in law and in equity, remained substantially that of England, but with 
 many local variations which had grown up under the crown govern- 
 ment of New York, and which, if separately studied, proved very 
 interesting phenomena. Singularly enough, under the State govern- 
 ment there was a tendency among the judges to obliterate these dis- 
 tinctions which had grown up in the province, for to follow ancient 
 precedents is easier than to follow innovation. The Revised Statutes 
 did not reform the practice : they systematized many of the old statutes 
 of New York relative to jeofail practice and proceedings, and embodied 
 some new provisions relative to the limitations of actions in the courts 
 of justice, but no great reform in practice was effected until after the 
 constitution of 1846. The changes made in the judicial establishment 
 by the constitution of 1821 were not sufficient to accomplish much 
 good. In the course of a few years the complaints concerning the 
 delay and expense in legal proceedings became so general as to serve 
 as influential reasons for the reforms instituted by the succeeding 
 convention, called in 1846. The new circuit judgeships, created by 
 the constitution of 1821, proved in the end unsatisfactory to the peo- 
 ple, because of the disposition evinced, by suitors to review all their 
 decisions before the Supreme Court in banc. 
 
 After so great a change in the form of the law as that involved in 
 the Revised Statutes, the statute-books of the State for some years 
 showed a cessation of legislative- activity. Some few rigid rules of 
 the common law, relative to the non-assignability of certain rights of 
 action or to commercial paper, were modernized. In 1831, however, 
 the arrest and detention of the debtor's body in civil actions was 
 abolished by the Stilwell Act, although this monstrous remedy had 
 been retained in 1829 by the revisers of the statutes. The material 
 development of the State, the founding of cities, banks, schools, turn- 
 pike and industrial companies, occupied the larger share of the atten- 
 tion of the law-makers for some years after the Revised Statutes. 
 This was not unnatural, for between the years 1830 and 1845 the popu- 
 lation of the State had increased from 1,918,608 to nearly 2,700,000. 
 The completion of the Erie Canal in 1825 had altered the relation 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 153 
 
 of the State to the commerce of the great West; and by 1831 the con- 
 struction of steam railways had added new forces to the civilization 
 and development of the State. 
 
 From 1821 to 1846 the constitution of the State underwent few 
 organic changes or amendments. In 1826 the office of justices of the 
 peace had been made elective. In 1833 the franchise for elective 
 officers was conferred on all white male citizens inhabiting the State 
 one year preceding an election. The disability of those of African 
 descent continued as before. In 1835 and 1837 the office of mayor 
 in all the cities of the State was made elective, and ceased to be 
 appointive. With these exceptions, the constitution of 1821 stood 
 unaffected by change until the year 1846. 
 
 Between the years 1821 and 1846 immigration had already intro- 
 duced into this commonwealth a very large number of persons of 
 foreign birth. While such constant migrations of strangers into a 
 cultivated and industrious community was reciprocally highly advan- 
 tageous from an economic point of view, it no doubt temporarily 
 complicated civil government to some extent. The new-comers, easily 
 transmuted by naturalization into citizens, and having abandoned the 
 restraints of their old homes, were attracted by those political doctrines 
 which were most novel to them, and which savored of the most abso- 
 lute equality, being opposed to centralization and privilege, or in 
 short to the older institutions perpetuated to some extent by the 
 State constitutions of 1777 and 1821. Thus the foreign element of 
 the population of New York swelled the ranks of those of our citizens 
 who were opposed to the State constitution as it existed down to the 
 year 1845. By 1845 the balance of political power had about shifted 
 from the rural districts to the growing towns, and the political dis- 
 content was promoted by those in the cities who favored a redistribu- 
 tion of representation. Yet the persons so opposed to the ancient 
 order of things were, perhaps independently of those of foreign birth, 
 in the majority. Many causes had contributed to this disaffection; 
 notably the permanent judicial establishment including the Court of 
 Chancery, the nature of the land laws of the State, and the loose con- 
 dition of the State debt and finances occasioned by the great public 
 works undertaken. The indiscriminate grants of lands already noticed 
 as taking place, both before and after the establishment of the State 
 government, were now producing their legitimate results — agrarian, 
 social, and political disturbances. At different periods in the history 
 of New York similar disturbances had arisen. It will be recalled that 
 the landlords of the vast grants of lands in the interior of the State 
 had, in accordance with the English land law of the province, made 
 perpetual leases instead of granting estates in fee. Sometimes the 
 leases were on condition of rent, services, or of produce to be rendered 
 
154 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 in kind. The landlords had generally reserved, also, mines and water- 
 power, and, to preserve the character of their estates, had restrained 
 the tenants from assigning their interests except on payment to the 
 landlords of some portion of the consideration received by the tenants. 
 The leases were full of subtle and ingenious covenants of distraint 
 in favor of the landlord. The great grants had been protected by the 
 State constitutions of 1777 and 1821. As early as 1811 the legislature 
 had appointed Ambrose Spencer, John Woodworth, and William P. 
 Van Ness to examine the laws of New York on this subject, and to 
 report what reforms in the land law could be instituted without im- 
 pairing vested rights. A" bill was accordingly introduced into the 
 Senate, but failed to become a law. About this same time the tenants 
 on the Clarke estate in various western counties memorialized the 
 legislature to investigate the title of their landlord, and the* whole 
 subject was referred to a committee of which General Root was chair- 
 man. Subsequently the manor of Livingston underwent legislative 
 investigation. In 1813 the sheriff of Columbia County was murdered 
 by the "anti-renters," as the uprising tenants were called. In 1837 
 the settlers in many counties, occupying" the' lands of the Holland 
 Company, and holding certain contracts of sale with forfeiture clauses, 
 destroyed papers in the land office in Chautauqua County, and an 
 armed multitude of them collected in Batavia, but were dispersed by 
 the military. After the death of the patroon in 1839, it became neces- 
 sary to attempt to collect unpaid rents on the manor of Rensselaer- 
 wyck. This process, being resisted, led to the employment of the 
 militia and a proclamation by Governor Seward, when the tenants 
 consented to refer their grievances to the legislature. A policy of 
 delay and official red tape led to the deplorable scenes of 1844-5, 
 when the turbulent tenants, arrayed as Indians, committed various 
 agrarian outrages and disturbances. Anti-rent newspapers and poli- 
 ticians sprang up to play an important part in the presidential canvass 
 of 1844, while in some counties civil government was entirely para- 
 lyzed. In the midst of these serious disturbances the legislature took 
 steps for a constitutional convention. Meanwhile the civil authorities 
 acted with great propriety in their efforts to maintain law and order, 
 and acts of assembly were passed enabling the governor to declare 
 martial law in disturbed counties, and making it felony to rescue 
 prisoners, to resist legal process, or to appear disguised. Withal, 
 there was a feeling prevalent in the minds of many disinterested per- 
 sons that the lands of New York had been grossly mismanaged from 
 the foundation of the English government in 1664, and that the 
 present successors of the early land speculators were now really pay- 
 ing off the moral debts of their predecessors. The agrarian difficulties 
 and the natural growth of democratical doctrines served to increase 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 155 
 
 //^U /4^s*-*-C?f 
 
 the dissatisfaction with the nature of the government under the con- 
 stitution of 1821, and in 1844 and 1845 steps were taken toward a 
 constitutional convention. 
 
 In the year 1845, the mandates of the constitution of 1821 providing 
 for its amendment having been per- 
 formed, 1 the question of " constitutional 
 convention" or "no convention" was 
 submitted to the electors, and decided 
 in the affirmative by a vote of 213,257 
 to 33,860. 
 
 On June 1, 1846, the convention, 
 elected pursuant to law in April pre- 
 ceding, assembled at the capitol. It 
 embraced many distinguished citizens, 
 including some of the leading lawyers 
 of the State, notably Charles O'Conor, 
 Churchill Cambreling, John K. Porter, 
 Levi Chatfield, Samuel Nelson, Samuel 
 J. Tilden, Henry Nicoll, Ambrose L. 
 Jordan, Ezekiel Bacon, Nathan Wil- 
 liams, and others. For the first time in 
 the history of political movements of New York, the great landhold- 
 ers of the ancient parts of the State seem to have been ignored by 
 the voters. The old regime had obviously lost control, and new coun- 
 sels were thenceforth to prevail in the State, founded on the enlarged 
 suffrage and on more democratic and enlightened principles, or at least 
 on those freer from purely Anglican traditions and customs inherited 
 or transmitted by the constitution of 1777. It was obvious that a 
 large share of the rural population were no longer to be obligated 
 by such ridiculous restraints and covenants in farm leases as "that 
 they should go to the grantor's mill only," or that they should not 
 entertain strangers over one day, or that they should set out trees to 
 the number of , keeping them replaced winter or summer. 
 
 The new constitution was formulated in fourteen articles, much 
 discussed, and adopted with one exception by large majorities. Space 
 will permit a glance only at their purport. The preamble repeated its 
 emanation from the people of the State, while the first article con- 
 'tained certain general limitations of the powers of government in the 
 shape of a bill of rights and privileges, every sentence of which again 
 bore evidences of the historic struggle for liberty by the English- 
 speaking peoples in the old and new worlds. Most of these limita- 
 tions had been contained in the earlier constitutions. Trial by jury, 
 religious liberty, the writ of habeas corpus, bail for accused persons, 
 
 1 New York Laws, 1845, o. 252. 
 
156 HISTOKY OF THE BENCH AND BAK OF NEW YORK 
 
 the exercise of eminent domain, freedom of speech, were each pro- 
 tected by appropriate clauses. Some old statutes reenacted in the 
 Revised Statutes of 1829, regarding tenures of real estate, were incor- 
 porated in the first article of the constitution, against the general 
 protest of the lawyers, who thought them supererogatory. All feudal 
 tenures were again declared abolished, saving, however, all rents and 
 services. So all lands were again declared allodial, but subject to 
 escheat. All fines, quarter sales, or other restraints upon alienation 
 were again made void. Leases of agricultural lands for longer than 
 twelve years were made void for the future. All these provisions, 
 in so far as they affected vested rights, were known to be quite in- 
 operative, and the only really new provision of importance was di- 
 rected against long farm leases in the future. The old farm leases 
 which were valid in their inception had to be dealt with by very 
 different modes from a constitutional referendum. For this reason 
 some of the lawyers thought that these clauses of the constitution 
 betokened insincerity. The provisions as to the land law, however, 
 had the effect of making the policy of the State, in the future, very 
 clear, and of prohibiting thenceforth long leases of farm lands. 
 Even these clauses of the constitution might not, however, have 
 proved effectual had not the new methods of transportation acted as 
 auxiliaries and made better and cheaper lands more accessible to the 
 agriculturist; so that the tenure of large districts of farm lands of 
 New York had to be revised by the consent of the proprietors them- 
 selves, through commutations and compromises, which naturally fol- 
 lowed the new economic rather than the new constitutional conditions. 
 Article II carefully regulated the right of suffrage, conferring the bal- 
 lot on all white male citizens, in conformity to the amendment of 
 1826, already noticed. Negroes, unless freeholders, were still excluded 
 from the suffrage, and so remained until the adoption of the fifteenth 
 amendment to the federal constitution, the electors of the State hav- 
 ing refused in the years 1846, 1860, and 1869 to relieve them of this 
 disability. In 1874, by constitutional amendment, the electors, how- 
 ever, removed the ban. Slavery after the year 1827 had been abol- 
 ished by a statute of 1817, while all persons were by statute born free 
 in this State after July 4, 1799. By Article III of the constitution the 
 legislative power, vested, as theretofore, in the assembly, was regu- 
 lated. The senate was reduced to thirty-two members and the legis- 
 lature to one hundred and twenty-eight. 
 
 As space forbids following minutely the extensive alterations of 
 the fundamental law by the convention of 1846, attention must be 
 directed to the important features only of the new organic law. By 
 Article IV it was provided that a candidate for governor might be a 
 naturalized citizen, and he was no longer required to be even a free- 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 157 
 
 holder. This provision well indicated the very serious change which 
 public sentiment had undergone in the preceding twenty years. The 
 time when property was regarded as the easiest test of a man's capa- 
 city or respectability had passed away; so naturalized foreigners 
 were no longer, as a body, to be deprived for that reason of the su- 
 preme honors of the State. Such changes were no doubt reason- 
 able, as the electors at large might be depended on, without artificial 
 restrictions, to choose the great State officers wisely. In other arti- 
 cles of the constitution the general power of appointment to public 
 office, vested by the constitution of 1821 in the governor or in the 
 senate and assembly, was given directly to the people. Even judicial 
 offices were made elective without any formidable protest in the con- 
 vention. This feature was not so novel as it might seem, for a major- 
 ity of the members of the old Court of Errors (the senators) had been 
 elective since the foundation of the State government, and the Court 
 of Errors had, on the whole, in the past proved more satisfactory to 
 the people at large than the other courts of record where the judges 
 were appointed. It was well understood by the convention of 1846 
 that the people desired an elective judiciary, and were dissatisfied 
 with the ancient appointive system. Many plans were suggested in 
 the convention, but nearly all favored a judiciarypartly or wholly 
 elective. The judiciary article of the constitution of 1846 made great 
 changes in the judicial organization of the State, and was carried by 
 a small majority. A new appellate court of last resort in cases civil 
 and criminal was created, to be called the Court of Appeals, and with 
 its erection the old Court of Errors was to disappear. Pour of the 
 justices of the new Court of Appeals were to be elected for a term 
 of four years, and another four were to be selected from the justices 
 of the Supreme Court. Instead of the old Supreme Court and Court of 
 Chancery a new Supreme Court was established, having general origi- 
 nal jurisdiction in law and equity. In order to prevent centralization 
 of judicial authority at the capitol, this new court was divided into 
 eight districts, of which the city of New York was one. The judges 
 were to be elected in the districts. Thus the great court of original 
 jurisdiction was in this way constituted on the basis of county rather 
 than of State lines; the evident object being to diffuse and not to 
 centralize judicial influence and responsibility. With an elective 
 judiciary the district plan for courts of original jurisdiction was 
 inevitable. 
 
 One of the objects of the convention being to reform the laws rela- 
 tive to the debt, finances, and property of the State, most minute 
 directions were contained in the new constitution, and very consider- 
 able limitations were imposed, in this respect, on the powers of the 
 legislature. No compromises with certain debtors of the State were 
 
158 HISTORY OF THE BENCH AND BAE OF NEW YORK 
 
 to be tolerated; sinking funds were to be created; the State salt- 
 mines and canals were not to be sold ; the State credit was not to be 
 loaned. Time has justified the wisdom of all these limitations. The 
 subject of franchises to corporations also -received attention, and it 
 was provided that private corporations could not be formed in the 
 future except under general laws, subject to alteration at the legisla- 
 tive will. In conformity with the popular demand, the stockholders 
 in such corporations were made personally liable for debts in proper 
 cases. Certain banking principles looking to the security of note- 
 holders were fixed in the constitution itself. Many other minute 
 provisions, some of which may be noticed hereafter, were contained 
 in the constitution. Thus the policy of the State, touching certain 
 spheres of legislative action, was so fixed by the people as to be beyond 
 the control of the ordinary legislative body. This course was then 
 more novel than it has since become in this country. On November 
 3, 1846, the new constitution was adopted by a vote of 221,528 to 
 92,436. In conformity to the terms of the instrument which made 
 future amendments more easy than did that of 1821, the constitution 
 of 1846 has been since amended in several particulars, but its general 
 features remain undisturbed. The policy of these amendments has 
 been to reserve more of the legislative power to the people, and 
 further to limit the powers of the legislature. In 1874 the term of office 
 of the governor was extended from two to three years ; his powers as 
 chief magistrate under the constitution of 1846, as amended, remained 
 substantially as under the former constitution, being, however, some- 
 what more prescribed with each organic change. In the year 1858, a 
 proposition for a new constitutional convention was defeated by the 
 people; but in 1866, steps were taken, as directed by the constitution, 
 toward a convention, and on April 23, 1867, delegates were chosen 
 who convened at Albany, June 4, 1867. Among them were many per- 
 sons of distinction and attainment. Notwithstanding that the popu- 
 lation of the State had increased from 1,372,111 in 1820 to nearly 
 3,000,000 in 1846, the people evinced greater satisfaction with the con- 
 stitution of 1846 than many had expected. The constitution framed 
 by the convention of 1867 was, with the exception of the judiciary 
 article, defeated by a vote of 290,456 against, to 223,935 for, its adop- 
 tion. By the particular amendment then adopted, some of the city 
 courts were made constitutional courts, and thus freed from legisla- 
 tive interference. The other changes were not extensive. The general 
 policy of the constitution of 1846 in making the great courts of general 
 original jurisdiction decentralized or local courts, was, in 1867, and 
 again in 1880, confirmed by provisions compelling the Supreme Court 
 justices to reside within their districts, although any Supreme Court 
 justice might, if designated, sit in any county of the State. In the 
 
HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 159 
 
 year 1873 the people rejected an amendment looking to the future 
 appointment to office of the justices of the Court of Appeals and the 
 Supreme Court. In 1874, and again in 1884, the powers of counties, 
 cities, towns, and villages to incur indebtedness were restricted by an 
 amendment to this end. In 1882 the canals of the State were made 
 free by constitutional amendment. In 1874 two new articles were 
 added to the constitution of 1846 : one of these was directed against 
 bribery of public officials, and the other provided that all amend- 
 ments to the constitution should be in force from the first day of 
 January succeeding the election at which the same were adopted. 
 
 Of all the changes instituted by the 
 constitution of 1846, those creating a new 
 judicial establishment, elective and di- 
 rectly responsible to the people, were the 
 most profound. Next in importance were 
 those provisions concerning the codifica- 
 tion of the law and the further direction 
 to the legislature to appoint commission- 
 ers to revise, simplify, and abridge the 
 practice, forms, and proceedings in all the 
 courts of justice of the State. Up to this 
 time the courts in the State and their 
 practice and proceedings had been sur- 
 vivals, and antedated in whole or in part 
 the war of independence. It was very 
 obvious, from the articles of the new con- 
 stitution, that the people desired a revolu- 
 tion in these ancient institutions — an inference further emphasized 
 by its permission to the legislature to erect new courts of conciliation. 
 Such new tribunals were the first English courts contemplated in 
 New York which were not patterned after the law-courts in England. 
 The scope of the political revolution intended by the people was fur- 
 ther shown by the innovation which permitted a naturalized citizen 
 to become governor, and which took away from the executive the 
 appointing power. A policy of governmental decentralization was 
 disclosed also by those provisions which permitted the legislature to 
 vest a share of the legislative power in boards of supervisors of 
 counties. This constitution provided that senators were to be 
 chosen for two years instead of for four years, and by smaller dis- 
 tricts, thus enlarging their direct responsibility to the people. Mem- 
 bers of the lower house were to be chosen by single districts, and 
 no longer by the counties as a whole. This single-district system 
 was an innovation, and had a tendency to do away with the old 
 county as a political unit. The argument for it was that in large 
 
 mea^S^MMja 
 
160 HISTORY OF THE BENCH AND BAR OB 1 JNEW YORK' 
 
 communities, such as cities, the district system provided for a more 
 direct and responsible representation. It was provided also that 
 these districts were to be reapportioned from time to time so as to 
 provide for more equal representation, as populations were shifted 
 or augmented. While the argument in favor of this single-district 
 system was no doubt sincere, it has met with great opposition and 
 censure from many who, while ardently attached to representative 
 institutions, have believed the ancient county a more dignified and 
 proper political unit than a district. In the city of New York the 
 single-distriet plan at first met with no favor, and it may be doubted 
 whether the opinion of the more thoughtful has had reason to change 
 the earlier opinion. 
 
 In addition to the organic changes tending to do away with a cen- 
 tralized State government, and to reserve greater power, judicial, 
 legislative, and executive, to the people, should be noted that article 
 of the new constitution which provided for its future amendment. 
 Under the constitution of 1821, a majority of the first and two thirds 
 of a second legislature must favor the change before a proposed 
 amendment could be submitted to the people. By the constitution of 
 1846, a bare majority vote of approval sufficed to cause such submis- 
 sion. The constitution of 1846 directed thai in the year 1866, and in 
 each twentieth year thereafter, and at such other times as the legisla- 
 ture provided, the question of holding a constitutional convention 
 must be submitted to a direct vote of the people. To many these last 
 provisions furnish the greatest evidence of change in the nature of 
 the State government as first established. The system constructed 
 by the earlier constitutions may be said to have been one by which 
 the government was delegated to certain officers, executive, legisla- 
 tive, and judicial, who were invested with general and more or less 
 permanent powers. These officers were the law-makers and adminis- 
 trators of the system. But by the new constitution such delegation ' 
 was not only more limited in scope, but greater power was reserved 
 to the people themselves to act more frequently by constitutional en- 
 actment on a large class of questions. The student of institutions has 
 detected in this constant reference of important laws to the people 
 themselves, an advance in the nature of popular institutions — the 
 referendum being the greatest height to which popular government 
 can obtain among large masses of people. Such legislation by the 
 people themselves was not contemplated by the founders of the State 
 government, either when they created their permanent judicial estab- 
 lishment or invested their executive with the magisterial and legisla- 
 tive powers of the former crown governors. Nor did the founders of 
 the State government dream that the investment of the legislature 
 with the entire legislative power — an achievement which then re- 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 161 
 
 fleeted the success of the Ee volution — would some day have to be 
 guarded by reservations from the legislature itself. 
 
 The constitution of the State government formulated by the con- 
 vention of 1846 was adopted by a vote of 221,528 in its favor to 92,- 
 436 against it. This new organic law went into effect on January 1, 
 1847, and with few modifications it still remains in force. The 
 nature of the judicial establishment created by this constitution was 
 in substance as follows : A court of final appellate jurisdiction, known 
 as the Court of Appeals, and already described, was substituted for 
 the old Court of Errors constituted in the upper legislative house, 
 attended by the great common-law judges and the chancellor. It 
 should be said that in the whole history of the commonwealth of 
 New York from the time when final appeals lay to great tribunals in 
 Europe down to the present, no other appellate court connected with 
 New York has given greater general satisfaction to the people than 
 the Court of Appeals erected under the constitution of 1846 and con- 
 tinued and reestablished by constitutional amendment. The courts 
 of original jurisdiction created under the frame of government estab- 
 lished in 1846 have generally preserved the historical continuity. 
 The new Supreme Court, for example, which is the great court of 
 original jurisdiction, preserved the jurisdiction of the former Su- 
 preme Court of Judicature of the State and province, but added to it 
 that of the Court of Chancery. In other words, the two former courts 
 have been merged into one great court, whose judges possess sub 
 modo the jurisdictions of the old chancellor and of the supreme jus- 
 ticiars of the State, who in turn had the power of the chancellor and 
 of the justices of the Bang's Bench, Common Pleas, and Court of Ex- 
 chequer in England. 1 The proceedings of the new supreme court of 
 general jurisdiction were soon much simplified by the adoption of a 
 uniform system of pleading, evidence, and trial in all actions in the 
 new court, whether such actions were formerly denominated legal or 
 equitable. Without such auxiliary provisions the fusion of the former 
 courts of law and equity in one court would have been more difficult. 
 As the nature of this fusion possesses great historical importance, it 
 will be again noticed below. In addition to the new Supreme Court, 
 the courts of record provided for under the constitution of 1846, or 
 created by the legislature pursuant to such constitution, were, as for- 
 merly, of several orders. There were minor civil courts for the dif- 
 ferent counties, which were known, as formerly, as county courts, 
 and there were likewise civil courts for cities, generally styled city 
 courts, or superior courts. In addition to these were the several crimi- 
 nal courts for counties and municipalities, such as courts of sessions 
 and recorders' courts. The jurisdictions of all these courts were pre- 
 
 1 Section 217, Code ol Civil Procedure. 
 
162 
 
 HISTORY OF THE BENCH AND BAB OF NEW YORK 
 
 scribed by law, and sometimes had cross or remote references to the 
 jurisdiction of the courts of the province of New York which pre- 
 ceded them. Where the jurisdiction of any of the new courts was 
 fixed by the constitution itself, it was beyond legislative interference ; 
 but when such court was one created by the legislature, its jurisdiction 
 was subject to alteration by the legislature. In addition to the county 
 and municipal courts were certain civil courts, not of record, intended 
 for the trial of small or speedy causes. In the counties these courts 
 were generally styled the courts of the justices of the peace ; but in the 
 cities, district courts. In addition to these small courts not of record 
 there were created under the constitution of 1846 certain criminal 
 courts of lesser jurisdiction, with power to try minor offenses, or to 
 bind offenders over to keep the peace. These courts were known 
 
 generally as police or 
 justices' courts. The 
 jurisdictions of all 
 the lower courts in 
 the State may be 
 styled statutory. The 
 Supreme Court, un- 
 der the constitution, 
 alone possessed a com- 
 mon law jurisdiction, 
 or one defined most 
 largely by reference 
 to judicatories having 
 their rise and origin 
 in the common law of 
 England, as it stood 
 before the British oc- 
 cupation of this commonwealth.' In this respect the Supreme Court 
 possessed a certain historic significance not possessed by even the 
 appellate court. It also afforded the gateway to the profession of 
 the law, as it licensed for all courts of the State all attorneys and 
 counsel, who by the new constitution might be any male citizen of 
 the age of twenty-one years, of good moral character, and proper 
 attainment. In addition to the courts denoted, the constitution of 
 1846 provided expressly for courts having jurisdiction of wills, 
 testaments, cases of intestacy, and probate matters generally, in 
 counties possessing a population of over forty thousand inhabitants. 
 In smaller counties the county judges, who had a probate jurisdiction 
 conferred by the constitution itself, were to act exclusively as surro- 
 gates. Surrogates' courts have now been generally created for all the 
 counties of the State. Occasional courts of impeachment were also 
 
 COUNTY COURT-HOUSE, NEW YORK CITY'. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 163 
 
 created and limited by the constitution of 1846, as by all preceding 
 constitutions of the State. Such is the outline of the new judicial 
 establishment of the State under the constitution of 1846. The State 
 courts possessed complete and entire jurisdiction throughout the State, 
 and, except as modified by the federal constitution and acts of Congress 
 conferring exclusive jurisdiction of certain prescribed cases on the 
 federal establishment, the range of the jurisdiction of the State courts 
 covered the entire field of judicial inquiry. The jurisdiction of the 
 lesser courts was confined to certain cities and counties, and their pro- 
 cess could not run beyond the limits prescribed. 
 
 The constitution of 1846 is also notable for its effort to confer upon 
 the people a system of laws which should not afford such persistent 
 evidence of the former colonial subordination. Although the con- 
 stitution elsewhere declared that such parts of the common law as 
 did form the law of the colony on April 19, 1775, and not since abro- 
 gated, should remain in force (together with such acts of the colonial 
 legislature, of the congress of the colony, and of the former legisla- 
 tures of the State), but subject to future legislative alteration, yet it 
 directed the first legislature of the State thereafter to appoint three 
 commissioners, whose duty it should be to reduce into a written 
 and systematic code the whole body of the law of the State, or so 
 much thereof as to the commissioners seemed practicable and expe- 
 dient. To many persons this was a welcome announcement that 
 the State had entered a more complete phase of independence, and 
 that it was preparing to make its laws of purely domestic origin, and 
 to avoid the necessity of constant reference to the laws of England. 
 From the context of the constitution it was exceedingly plain that 
 the people of the State demanded the codification of their laws. The 
 judiciary article of the constitution of 1846 contained also some pro- 
 visions obligatory upon the proceedings in the new courts, such as 
 that "the testimony in equity cases shall be taken in like manner as 
 in cases at law"; but there was considerable ambiguity about the pro- 
 visions concerning the Supreme Court, which induced some of the 
 older school of lawyers to hope that the practice in the new Supreme 
 Court might still continue to reflect the former antinomy between law 
 and equity in some such manner as now prevails in the federal courts 
 of this country. In January, 1847, David Dudley Field of New York 
 published a tentative treatise entitled "What shall be done with the 
 practice of the courts? Shall it be wholly reformed? Questions 
 addressed to lawyers." A memorial followed, largely signed by law- 
 yers of the State, urging the legislature to abolish the old forms of 
 action, and to provide for a uniform course of proceedings in all cases, 
 whether of legal or equitable cognizance. On the 8th of April, 1847, 
 the legislature passed an act appointing Arphaxed Loomis, David 
 
164 HISTOKY OF THE BENCH AND BAE OF NEW YORK 
 
 Graham, and Nicholas Hill commissioners on practice and pleadings. 
 Mr. Hill resigned in September following, and Mr. David Dudley- 
 Field was appointed in Mr. Hill's place by a resolution of the two 
 houses of legislature on September 29, 1847. On February 29, 1848, 
 the first instalment of a code of civil procedure was enacted, to take 
 effect July 1 following. The completed code of civil procedure was 
 reported December 31, 1849, but its adoption was delayed. On the 
 same day the code of criminal procedure was reported, but it was not 
 adopted at that time. That instalment of the code of civil procedure 
 which was enacted abolished all distinction between actions at law 
 and suits in equity, and substituted one form of action for the pro- 
 tection of private rights, or the redress of private wrongs. At this 
 time this single reform was the greatest ever accomplished in the 
 remedial law of an English-speaking people. Its design and accom- 
 plishment were largely if not exclusively due to the efforts of Mr. 
 Field, one of the most lucid of all legislative draftsmen, as well as 
 one of the most powerful and original thinkers ever seen in the ranks 
 of English-speaking lawyers. Unfortunately, the symmetry and ex- 
 cellence of Mr. Field's legislative work have been much marred either 
 by the action of the legislature, or by its failure to adopt the entire 
 scheme of reform as reported by the codifiers. Not until April 6, 
 1857, were efforts to continue the reform contemplated by the consti- 
 tution of 1846 successful. In that year an act was passed revising a 
 former code commission. The earlier commission had failed to codify 
 the whole body of the law of the State, or to perform any part of the 
 task assigned to them by the legislature. 1 The act of 1857 2 appointed 
 David Dudley Field, William Curtis Noyes, and Alexander Bradford 
 commissioners to codify so much of the law as was not included in 
 the reports of the commissioners on pleading and practice reported 
 to the legislature in 1850. On April 10, 1860, a political code was 
 accordingly reported to the legislature. On March 30, 1861, a book 
 of forms adapted to the necessities of the practice code was reported, 
 but not adopted. The penal code was reported in December, 1864, 
 and the civil code on February 13, 1865. 
 
 The civil, criminal, penal, and political codes, together with the book 
 of forms, would have completed the entire scheme of reform contem- 
 plated by the constitution of 1846. But of these great works only the 
 penal and criminal codes have passed into laws. 3 The civil and polit- 
 ical codes have up to this time failed of enactment. For whatever 
 reason these completed codes have failed to become laws, it cannot 
 be doubted that their enactment would have relieved the jurispru- 
 dence of the State from many anomalies and archaisms peculiar to 
 that part of the law of England which we have seen to be the law of 
 
 1 Chapter 49, Laws of 1847 ; Chapter 289, id. ; Chapter 312, Laws of 1849. 2 Chapter 266. 
 3 Chapters 442 and 676, Laws of 1881. 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 165 
 
 the former province of New-York. The whole body of the law of the 
 State would then have been reduced to a written form, with the effect, 
 as many believed, of permitting the energies of the bar to be directed 
 to a higher and more philosophical exposition of principles than is 
 permissible when the text of the 
 law is unwritten and deduced only 
 from cases and precedents. 
 
 As the law stands, — several of 
 the codes not having been enact- 
 ed, — the private jural relations of 
 all the citizens of the State are now 
 determined either by certain inhi- 
 bitions contained in the written 
 constitutions of government re- 
 lated to private law, or by the acts 
 of the legislature of New York, in- 
 cluding the Revised Statutes (fre- 
 quently amended by later legislar 
 
 tures of the State), or lastly by the c ~^ < \ . . ^^^ , 
 
 common law of the province of Z/^-tS ^^-^-^^^Z^es^e^^^ 
 New York, as it stood on the date 
 
 of the battle of Lexington, in the year 1775, and as since altered by 
 legislation. The constitution of 1846, adopting the phraseology of the 
 constitution of 1821, provided also that the acts of the old assembly 
 of 'the province, and the resolutions of the congress and of the con- 
 vention of the State in force April 20, 1777, and not since repealed or 
 altered, should also form part of the fundamental law ; but as a mat- 
 ter of fact the acts of the provincial assemblies were all repealed in 
 the year 1828, while those acts of the "convention and the resolutions 
 of the congress of any permanent effect had by the year 1846 been re- 
 vised by statutes of the State, so that the common law and the legisla- 
 tive acts of the State government may be roughly said to constitute 
 the entire body of the substantive law of the State in force since 1846. 
 The common law so in force has of late years received so much ju- 
 dicial interpretation that almost all its leading institutes appear in 
 the printed reports of the adjudications of the State courts. That 
 such a form for the great body of law of the State is now at all what 
 was contemplated by the constitution of 1846, cannot be pretended. 
 Yet, that the contents and substance of the law as it actually exists are 
 adequate at present to all the exigencies of a highly civilized State, 
 experience affirms. To indicate more fully the nature of the institutes 
 of this great body of private law would require greater technical pre- 
 cision than the limits of this outline permit. By force of the constitu- 
 tional definition of the law of the State, the remnant of the old 
 
166 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 Dutch law which had become a part of the common law of the prov- 
 ince, still remains, in very limited instances, a rule of particular prop- 
 erty held under Dutch ground-briefs, or by Dutch subjects under the 
 articles of capitulation of 1664. Otherwise the law of New Nether- 
 land has been repealed, abrogated, or wholly displaced. In many in- 
 stances the common law of the province of New York, referred to by 
 the constitution of 1846 as continuing in effect under that constitu-, 
 tion, has until a comparatively late period regulated wholly many of 
 the domestic relations in this State, such as husband and wife, parent 
 and child, guardian and ward, and master and servant. But of late 
 years the common law has been modified by such statutes as the mar- 
 ried women's property acts, and other acts in conformity with the 
 trend of modern thought and opinion. On March 2, 1870, 1 efforts 
 were again made to accomplish the work directed by the constitution 
 of 1846, and remaining unperformed. The new commissioners, of 
 whom Mr. Field was not one, were directed to incorporate into and 
 make part of their revision the proposed codes reported to the legis- 
 lature by the earlier commissions. The last commission proceeded 
 to revise the early code of procedure : the other portions of their task 
 have remained unfulfilled. Thus, up to the present time, the com- 
 plete codification contemplated by the constitution of 1846 has not 
 been accomplished. 
 
 Having now outlined the form of the public and private law of the 
 State as it exists at the present day, a word of application may be 
 made to the status of a citizen of the city of New York. The com- 
 mon law of the State is the same in all parts of the territory under 
 the jurisdiction of the State, there being no portion subject to a dif- 
 ferent common law from the rest. Of the statutes of the State some 
 are general in application, while others, by limitation, apply to specific 
 communities, such as the city of New York. Thus, those inhabiting 
 the city of New York are, as a rule, subject to a common law of uni- 
 versal application throughout the State, and to a statute law which 
 may or may not be general in operation. Of the statutes of the State 
 not everywhere operative, the municipal charters of the city of New 
 York afford good examples ; for these charters contain not only fran- 
 chises to the city as a corporation, but also occasional rules for the 
 government of the citizens within the jurisdiction of such municipal 
 corporation. The writer has elsewhere noticed the Dongan and 
 Montgomerie charters.' At the adoption of the first constitution 
 of the State, the Montgomerie Charter of 1730 was in full force, 
 and the State constitutions of the present century have provided 
 that nothing therein contained should annul any charters to bodies 
 politic and corporate made prior to the 14th of October, 1775. 
 Until the year 1830 the Montgomerie Charter, as somewhat modified 
 
 i Chapter 33. » Chapter XIV, Vole. I and II, Memorial History. 
 
HISTORY OP THE BENCH AND BAB OF NEW YORK 167 
 
 by statute, remained the fundamental charter of the city. In that 
 year an amended charter was adopted. In June, 1829, the common 
 council had recommended the citizens to choose delegates to a con- 
 vention for the purpose of amending and revising the ancient char- 
 ter. Steps were accordingly taken under the advice of Ex-Chancellor 
 Kent, and on the 7th day of April, 1830, at the request of a majority 
 of the citizens, the legislature passed an act "to amend the Charter of 
 the City of New York." l In this act the old charter is recognized as 
 subsisting, in so far as it is not inconsistent with the new act's own 
 provisions. On April 2, 1849, July 11, 1851, April 10, 1852, April 11, 
 1853, and at other times, further amendments were made to the char- 
 ter. But on April 4, 1857, most of the more recent amendments were 
 repealed, and chapter 446 of the laws of 1857 was substituted for 
 them. It was, however, still provided that the provisions of the royal 
 charters should continue in force where not abrogated or inconsistent 
 with chapter 446 of the laws of 1857. 
 
 In the year 1873 2 an act was passed " to reorganize the local gov- 
 ernment of the City of New York," which made extensive changes in 
 the administrative part of the city charter, repealing various amend- 
 ments enacted in the present century, but still continuing in force 
 those provisions of the ancient royal charters then operative and not 
 inconsistent with its provisions. In 1874 the city's boundaries were 
 much enlarged, 3 and the power of the separate county government 
 was transferred to the city authorities. 4 In the years 1879 and 1880, 
 the legislature authorized a revision of the special and local laws af- 
 fecting New York city, and made such revision presumptive evidence 
 in the New York courts of justice of all special or local laws in force 
 in the city of New York. 5 In 1881, 6 most of the local acts affecting 
 New York city passed subsequent to 1784 being contained in the re- 
 vision mentioned, were otherwise repealed. In 1882 all the laws af- 
 fecting public interests in the city of New York, having been revised, 
 were consolidated in one act known as the " consolidation act," 7 and 
 it was thought that all future laws affecting the city of New York 
 should refer to this act. But such has not been the case, and various 
 acts affecting the city have been since passed without any special ref- 
 erence to the consolidation act of 1882. Curiously enough, the an- 
 cient royal charter known as the Montgomerie Charter of 1730, in so 
 far as it has not been swept away by inconsistent legislative enact- 
 ment, remains in force, having never been expressly repealed. Thus, 
 though the nature of the city government in most of its administra- 
 tive features has completely changed, that feature of the Dongan 
 Charter which, in the year 1686, vested the powers of local government 
 
 1 Chapter 122, Laws of 1830. 5 Chapters 594 and 595, Laws of 1880. 
 
 2 Chapter 335, Laws of New-York. 6 Chapter 537. 
 
 3 Chapter 411. 7 Chapter 410, Laws of 1882. 
 i Chapter 304. 
 
168 HISTORY OF THE BENCH AND BAK OE NEW YORK 
 
 in a mayor, alderman, and commonalty, exists at the present time. 
 Notwithstanding the many changes introduced "by the legislature in 
 the present century, the skeleton of the city government possesses 
 a very considerable antiquity. To give in detail the nature of the 
 changes actually instituted would exceed the limits prescribed for a 
 mere outline, and has not been attempted. 
 
 In conclusion, it may be remarked that in the State of New York 
 popular sovereignty, which attained its highest phase under the State 
 constitution of 1846, has been developed somewhat differently from 
 that in the other original States, where it was often observable, even 
 before the war of independence, in town and city governments. 
 But in the city of New York, down to the war of independence, the 
 crown government exercised unusual influence and authority. After 
 the American Eevolution the State government succeeded to this 
 power over the city government. Not until 1834 were the mayors 
 of this city elected by the inhabitants of the city. At the present 
 time the old legislative powers of the municipal authorities have 
 almost dwindled into insignificance, having been largely assumed 
 by the legislature of the State, so that the measure of freedom now 
 enjoyed by the inhabitants of this city is determined, not by the 
 history and the laws of the city itself, but by those of the State, 
 although the history of the city long antedates that of the State. 
 By a change instituted in the State constitution of 1846, restoring 
 to the clergy eligibility for public office, and by the fifteenth amend- 
 ment to the federal constitution, forbidding any State to abridge 
 the right to vote on account of race, color, or previous condition 
 of servitude, the political equality of all citizens of the State is abso- 
 lute. Notwithstanding the annual introduction into the State and 
 city of a large number of persons of foreign birth, wise naturaliza- 
 tion laws have incorporated most of them into the very heart of the 
 body politic, so that they too are amenable to the same laws and 
 possess the same rights as the descendants of the original settlers, 
 thus avoiding many complications peculiar to those mixed States 
 where extensive consular jurisdictions are recognized. By the four- 
 teenth amendment to the federal constitution the children of for- 
 eigners, if born in the United States, are citizens of the State where 
 they reside. Thus most of the inhabitants of the city of New York 
 are citizens, and all citizens possess precisely the same rights and are 
 subject to the same law. Under such conditions there is happily no 
 excuse for political discontent. The object of the founders of the 
 State has been in this respect fully consummated. Yet to assert that 
 the condition of the law and the constitution is perfect would be an 
 exaggeration ; but the assertion that there has been and is, on the 
 whole, a steady and healthy growth of law and liberty here, would 
 be one which few will deny. 
 
THE CONSTITUTION OF 1894. 
 
 HE present constitution of the state, as formulated by the 
 constitutional convention of 1894 and ratified by the peo- 
 ple at the general election of that year, is the final issue of 
 a protracted and bitter partisan struggle, which will always 
 be memorable in New York political history. 
 
 By the terms of the constitution adopted in 1846, the legislature 
 was required, in each twentieth year thereafter, to submit to the peo- 
 ple the question whether a convention should be summoned for pur- 
 poses of constitutional revision. This question was duly referred to 
 the popular verdict in 1866, and, an affirmative vote being given, a 
 constitutional convention assembled in the ensuing year, whose 
 amendments were, however, with a single exception, rejected at the ■ 
 polls. Thus the work of systematically reconstructing the constitu- 
 tion was postponed to await the expiration of another period of 
 twenty years. Meantime the need of various changes was felt to 
 be so important that in 1873 a "constitutional commission" was 
 organized ; and the amendments which it drafted — eleven in num- 
 ber — were subsequently ratified by the legislature and accepted by the 
 people. Yet the constitutional improvements obtained through this 
 extemporized commission, and others effected by means of separate 
 amendments, were generally regarded as quite inadequate ; and accord- 
 ingly when, in 1886, the people were again asked to pass upon the 
 question of holding a constitutional convention, they assented to the 
 proposal with substantial unanimity, only 30,000 negative votes being 
 cast in a total of more than 600,000. 
 
 For years the conditions determining the political control of the 
 state had presented a curious anomaly. The democrats, although 
 frequently able to elect the governor and other executive officers on 
 the general state ticket, had been hopelessly in the minority in the 
 legislature. The existing legislative apportionment, giving the repub- 
 lican rural districts a considerable relative preponderance in repre- 
 sentation over democratic New York City and Brooklyn, rendered it 
 impossible, in all ordinary circumstances, for the democrats to obtain 
 a majority in the senate and assembly. This state of affairs was 
 viewed with great disgust by the aggressive democratic leaders, and 
 they impatiently awaited an opportunity for changing the apportion- 
 ment in the interest of their party organization. 
 
 At the session of 1887 the democratic governor was, as usual, con- 
 
 169 
 
170 
 
 HISTOEY OF THE BENCH AND BAE OP NEW TOEK 
 
 fronted by a republican senate and assembly. The legislature in due 
 time presented to him a bill providing for the election of delegates to 
 the proposed constitutional convention. It was understood by both 
 parties that the convention, when held, would establish a new basis of 
 apportionment, and therefore that the party controlling the majority 
 
 WALL STREET IN 1893. 
 
 of delegates would for many years to come enjoy a marked advantage 
 in legislative representation. . It was charged by the democrats that the 
 constitutional convention bill of the legislature of 1887 was so drawn 
 as to insure republican ascendency in the coming convention. Gover- 
 nor Hill refused to endorse a scheme so unfavorable to his party, and 
 
HISTOKY OF THE BENCH AND BAR OF NEW YOIIK 
 
 171 
 
 vetoed the bill. Attempts made in the next five years to arrange a 
 plan for summoning the delayed convention were equally unsuccessful, 
 the democratic governor and republican legislature being still unable 
 to reconcile their differences. It was not until 1892 that an agreement 
 was arrived at. The democrats had at last gained the upper hand in 
 both the senate and the assembly, and a new measure, which, it was 
 supposed, would give them full mastery of the convention, was passed 
 at the sessions of 1892 and 1893 and signed by the governor. But the 
 fall elections of 1893 resulted in an overwhelming republican victory, 
 and of the 168 members of the convention only 65 were democrats. 
 The number of delegates originally chosen was 175, of whom 15 were 
 
 World 
 
 Sun 
 
 Tribune 
 
 Times 
 
 Press Office, 
 
 Building. 
 
 Building. 
 
 Building. 
 
 Building. 
 
 Potter Building 
 
 " NEWSPAPER KOW," 1892. 
 
 delegates at large and the remainder represented the senate districts ; 
 but in consequence of deaths, resignations, and the unseating of mem- 
 bers declared fraudulently elected, the total was reduced to 168. 
 
 The convention assembled in Albany, May 15, 1894, and continued 
 in session until September 29. Although its membership included a 
 number of eminent lawyers, it was not, on the whole, a specially note- 
 worthy representative body. Its officers were : President, Joseph H. 
 Choate; 1st vice-president, Thomas G. Alvord ; 2d vice-president, 
 William H. Steele ; secretary, Charles E. Fitch. Its work was distrib- 
 uted among twenty-seven regular committees. It had under consider- 
 ation more than four hundred amendments, of which it adopted thirty- 
 
172 HISTOET OF THE BENCH AND BAB OF NEW TOEK 
 
 three ; and, in addition, much, obsolete matter was stricken out of the 
 old constitution. The revised instrument framed by the convention 
 was comprised in fifteen articles, which, having been ratified by the 
 people on November 6, 1894, took effect as the organic law of the state 
 on January 1, 1895. 
 
 Public interest in the convention's transactions centered in its re- 
 adjustment of the legislative apportionment. The membership of the 
 senate was increased from 32 to 50, and that of the assembly from 128 
 to 150, and the boundaries of each district were defined. It was pro- 
 vided that these boundaries should not be disturbed until 1905, when 
 a new apportionment should be made on the basis of an enumeration 
 of the inhabitants of the state then to be taken, but with the proviso 
 that New York City should in no case have more than one-third the 
 members of the senate, or New York City and Brooklyn together 
 more than one-half. The new apportionment was strenuously objected 
 to by the democratic members, on the ground that it was cunningly 
 devised to perpetuate republican control of the legislature in the face 
 even of heavy democratic majorities in the state at large. 1 A com- 
 mittee of the republican members, in an address to the people, made 
 a spirited reply to these attacks. In justification of the alleged 
 unfairness toward the democratic strongholds, the republican mem- 
 bers said : 
 
 Before another constitutional convention presents its work to the people it is 
 probable that the cities of New York and Brooklyn or the greater city formed by 
 their union will contain a majority of the inhabitants of the state. If the present 
 system continues they will be able to elect the governor, the state officers, a majority 
 of the senate and a majority of the assembly. Both by force of numbers and by the 
 multiplied power of compact organization and cohesion among the representatives 
 from a single county responsible to a single local political organization, they will be 
 able, absolutely, to control the government of the state. What will be the con- 
 sequence of compelling the vast region extending from the City of New York to the 
 St. Lawrence "and to Lake Erie, with its varied interests, sentiments and opinions, 
 not over well understood by the inhabitants of the city, to submit to such a domina- 
 tion ? "Would such an arrangement conduce to the permanent welfare of the state ? 
 Our opinion is that it would not ; and that the provision which secures to the whole 
 state outside of the city a bare half of one house of the legislature, leaving to the 
 city such control as its numbers may give over the other house and over the 
 executive department, is a slender enough safeguard against so unfortunate a result. 
 
 We believe the provision to be sound in principle; that somewhere in every 
 representative government there should be a recognition of variety of interest and 
 extent of territory, as well as of mere numbers united in interest and location. 
 
 Such a departure from the rule of strict numerical representation is recognized 
 by the constitution of the United States in the organization of the senate, by the 
 constitution of the State of Pennsylvania in limiting the representation which the 
 city of Philadelphia may have in its senate to one-sixth of its members, and by the 
 
 1 The following is a specimen of these democratic represent republican districts by 130,348 and leave un- 
 
 accusations: It was asserted that fifteen of the new represented a population in democratic districts of 
 
 senate districts, having a population 459,672 less than 131,287. See N. T. Evening Post, October 6, 1894. 
 fifteen other districts, were so constructed as to over- 
 
HISTOKY OF THE BENCH AND BAR OP NEW YORK 173 
 
 constitution of the State of Maryland, in limiting the representation which the city 
 of Baltimore may have. 
 
 Similar provisions have been adopted by the State of Ohio affecting Cincinnati 
 and Cleveland, the State of Missouri affecting St. Louis, the State of Ehode Island 
 affecting Providence, and by other states of the Union having large cities. It is the 
 rule rather than the exception throughout the Union. 
 
 "Without reference to the merits of the controversy, it is unques- 
 tionable that the treatment of the apportionment question by the con- 
 vention of 1894 tended to aggravate matters, and there is consequently 
 every probability that the next constitutional convention will be 
 similarly agitated by issues of mere partisan concern. Fortunately, 
 however, its assembling will not be contingent upon the political cir- 
 cumstances of the day ; for the new constitution explicitly declares 
 that if in 1916 the people decide in favor of a convention, the contem- 
 plated body shall come together in the year following. 
 
 In addition to the legislative apportionment various political 
 amendments were adopted by the convention, which were received 
 with general approval. The most important of these was one providing 
 for the separation of municipal elections from the state and presi- 
 dential elections in the cities of New York, Brooklyn, Buffalo, 
 Rochester, Syracuse, Albany, and Troy. It was arranged that muni- 
 cipal officers in the foregoing cities shall henceforth be chosen in the 
 odd-numbered years, and the terms of the state officers were reduced 
 from three years to two, causing state elections to fall uniformly in 
 the even-numbered years. The principle of civil service reform was 
 embodied in the fundamental law, by requiring that appointments and 
 promotions be based upon merit, and be ascertained, so far as practic- 
 able, by competitive examination. All state officers and members of 
 the legislature were forbidden to accept railway passes or gratuitous 
 service from telegraph and telephone companies. Provision was made 
 for extending the gubernatorial succession by authorizing the speaker 
 of the assembly to perform the duties of chief-executive in the event 
 of the death or incapacitation of the governor and lieutenant-governor. 
 Correction of abuses in legislative procedure was sought by directing 
 that all bills shall be printed in their final form at least three days 
 before their passage, prohibiting riders on appropriation bills, and 
 vesting in the municipal authorities of the larger cities the right to 
 review bills affecting their communities. An effective blow was dealt 
 at pre-election naturalization activities by prescribing a period of 
 ninety instead of ten days of citizenship before the right of franchise 
 can be exercised. The office of coroner was abolished by omitting all 
 mention of it. 
 
 The convention, besides manifesting a friendly disposition toward 
 moderate political reforms, evidenced certain rather decided radical 
 sympathies. An amendment was inserted specifying that no " pool- 
 selling, bookmaking, or any other form of gambling," shall " hereafter 
 
174 
 
 HISTORY OF THE BENCH AND BAR OF NEW YOEK 
 
 be authorized or allowed within this state." ' A proposed amendment 
 permitting the question of woman suffrage to be siibmitted to the 
 people, although voted down, received significant support, 59 votes 
 being recorded in its favor. 
 
 The crowning work of the convention was its thorough reorgan- 
 ization of the judiciary system of the state. 3 This was undertaken, 
 and prosecuted throughout, in the interest of promoting the more 
 speedy, uniform and effective administration of justice, and the result- 
 ing changes have contributed materially toward the relief of the Court 
 of Appeals, the diminution of trial calendars generally, and the sim- 
 plification of litigation — reforms 
 for which there was a pressing 
 need. 
 
 The former constitution of the 
 Court of Appeals was left undis- 
 turbed in all respects, and the 
 only alterations affecting this 
 tribunal were with a view to 
 lightening its burdens and limit- 
 ing it to its proper function of 
 declaring and settling the law. 
 The Supreme Court was enlarged 
 by the addition of twelve new 
 justices — three in the 1st judi- 
 cial district, three in the 2d, and 
 one in each of the others. The 
 state was divided into four de- 
 partments — the county of New 
 York constituting the 1st, — to 
 take the place of the nine gen^ 
 eral terms of the Supreme and 
 Superior Courts. The 2d divi- 
 sion of the Court of Appeals was abolished, and in its stead an appel- 
 late division of the Supreme Court was created, composed of seven 
 justices in the 1st department and five in each of the others. No more 
 than five justices are to sit in any case, four are necessary to a quorum, 
 
 MADISON SQUARE GARDEN. 
 
 J In their addresB to the people from which we have 
 already quoted the republican members defended this 
 amendment in the following terms: 
 
 " The passion for gambling to which the system of 
 lotteries formerly ministered has found fresh oppor- 
 tunity under the so-called Ives pool bill, and under 
 color and pretext of betting upon horse-races, is work- 
 ing widespread demoralization and ruin among the 
 
 young and weak throughout the community It 
 
 is claimed that this [anti-gambling] provision will 
 array in opposition to the proposed constitution a great 
 and unscrupulous money power, but we appeal to the 
 virtue and sound judgment of the people to sustain the 
 position which we have taken," 
 
 a The judiciary committee of the convention was com- 
 posed of the following members: Blihu Root, New 
 Yorkcounty; Louis Marshall, Onondaga county: Henry 
 J. Cookinham, Oneida county; Tracy C. Becker, Erie 
 county; J. Eider Cady, Columbia county; John F. Park- 
 hurst, Steuben county; John I. Gilbert, Franklin coun- 
 ty; J. Johnson, Kings county; Daniel H. McMillan, 
 Erie county; Nathaniel Foote, Monroe county; C. H. 
 Truax, New York county; Roswell A. Parmenter, 
 Rensselaer county; Edwin Countryman, Albany coun- 
 ty; John M. Bowers, New York county; De Lancey 
 Nicoll, New York county; Almet F. Jenks, Kings 
 county ; and George H. Bush, Ulster county. 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 175 
 
 and the assent of three is required for a division. From all the jus- 
 tices elected to the Supreme Court the governor is to designate those 
 who shall constitute the appellate division in each department, and he 
 is also to select the presiding justices. 
 
 With the beginning of 1896 the Court of Common Pleas of the City 
 and County of New York, the Superior Court of the City of New York, 
 the Superior Court of Buffalo, and the City Court of Brooklyn were 
 abrogated and their jurisdiction transferred to the Supreme Court. 
 Circuit Courts and Courts of Oyer and Terminer were likewise done 
 away with, and the Supreme Court was appointed to administer their 
 functions. The jurisdiction of the Court of Appeals is henceforth lim- 
 ited to the review of questions of law, except in cases where the judg- 
 ment is of death. No unanimous decision of the appellate division of 
 the Supreme Court that there is evidence supporting a finding of fact 
 or a verdict not directed by the court can be reviewed by the Court of 
 Appeals ; but the appellate division in any department may allow ap- 
 peal upon any question of law that in its opinion ought to be reviewed 
 by the Court of Appeals. Courts of Sessions, except in New York 
 county, were abolished, but the existing Surrogates' Courts were 
 continued. 
 
 The main features of this reorganization are, first, the relief of the 
 Court of Appeals by the establishment of an intermediate appellate 
 tribunal, and second, the correction of the confusing and undesirable 
 multiplication of courts in the larger cities. Thus a single great court 
 of original jurisdiction — the Supreme Court — was designated to do the 
 work formerly divided among a variety of special courts. To quote 
 the words of one of the prominent members of the judiciary committee 
 of the convention, " By abolishing these courts, questions of jurisdic- 
 tion which have hitherto been a source of confusion and difference are 
 set at rest, and litigants are not deprived of their rights because their 
 counsels have erred in the choice of a tribunal. But what seems to con- 
 stitute a reform even more beneficial lies in the fact that no litigant 
 shall be permitted to select his own tribunal. Heretofore the plaintiff 
 was at liberty to do so, while the defendant was compelled to respond 
 in the court chosen by his opponent. Hereafter plaintiff and defend- 
 ant will be on an equal footing." l 
 
 A proposal to return to the old appointive method in the choice of 
 judges was emphatically rejected by the convention. The age limit of 
 seventy years was retained, but the system of pensions for retiring 
 judges was abandoned. An amendment shortening the terms of judges 
 from fourteen to eight years was defeated by a large majority. 
 
 The statutory provision limiting the right of recovery for injuries 
 causing death to $5,000 was done away with. Another important 
 chaDge of somewhat similar character was the abrogation of the pe- 
 cuniary limitation of $500 formerly fixed for cases appealable to the 
 Court of Appeals. 
 
 > Louis Marshal], in the N. T. World, October 7, 1894, 
 
176 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 The political and judiciary alterations, which we have sketched in 
 brief, constitute the distinctive features of the new constitution. Its 
 miscellaneous provisions are of comparatively little interest. The most 
 conspicuous is, probably, the prohibition of the contract system of con- 
 vict labor. This amendment took effect on the 1st of January, 1897. 
 Other amendments worthy of notice prohibit the use of public 
 money or credit for the aid of sectarian schools ; divide cities into 
 three classes, the first class being composed of those having 250,000 
 population or more, the second, of those having from 50,000 to 250,000, 
 and the third, of all others ; authorize the legislature to care for the 
 improvement of the canals, without, however, borrowing money for the 
 purpose unless the people expressly authorize it ; make stockholders 
 in banking corporations individually liable to the amount of their 
 
 THE BATTERY. 
 
 stock ; perpetually prohibit the sale or leasing of public lands in the 
 forest preserve or the cutting of timber thereon ; and provide for a 
 naval as well as a land force of militia. 
 
 The long protracted controversy about the " proposed civil code " 
 was brought to an end — so far, at least, as its constitutional bearings 
 were concerned — by eliminating that section of the constitution of 
 1846 which related to the codification of the laws. No allusion what- 
 ever is made to the code question in the new constitution. The status 
 of the law of the state is thus denned : 
 
 Such parts of the common law, and of the acts of the legislature of the Colony 
 of New York, as together did form the law of the said colony on the 19th day of 
 April, 1775, and the resolutions of the congress of the said colony, and of the con- 
 vention of the State of New York, in force on the 20th day of April, 1777, which 
 have not since expired or been repealed or altered ; and such acts of the legislature 
 of this state as are now in force shall he and continue the law of this state, subject 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 177 
 
 to such alterations as the legislature shall make concerning the same. But all such 
 parts of the common law, and such of the said acts or parts thereof as are repugnant 
 to this constitution, are hereby abrogated. 1 
 
 The constitution was submitted to the people for their adoption or 
 rejection on November 6, 1894. The apportionment and canal-improve- 
 ment amendments were, however, referred as separate propositions. 
 The popular vote resulted as follows : For the main body of the con- 
 stitution, 410,669, against, 327,402 ; for the legislative apportionment 
 "amendment, 404,335, against, 350,625 ; for the canal-improvement 
 amendment, 442,998, against, 327,645. 
 
 1 Art. I., sec. 16. 
 
LEGAL EDUCATION IN NEW YORK. 
 
 CROWN ON COLUMBIA COLLEGE. 
 
 HE history of legal education in the state of New York 
 exhibits peculiar and interesting conditions of growth and 
 development. "Until recently," said a well-known writer 
 (in 1878), " instruction in the law in the United States has 
 been given for the most part in the offices of practicing lawyers." The 
 Hon. David J. Brewer, of the United States Supreme Court, noted in a 
 paper read before the American Bar Association in 1895 that " it was 
 many years after the settlement of the colony (of Massachusetts) before 
 anything like a distinct class of attorneys-at-law was known. And," 
 he continued, quoting from Washbnrn's " Judicial History of Massa- 
 chusetts," " it is doubtful if there were any regularly educated attor- 
 neys who practiced in the courts of the 
 colony during its existence." 
 
 In a very early history of New York, 
 written in 1756, the author, William Smith, 
 afterwards chief-justice of Lower Canada, 
 calls attention to the fact that the door of 
 admission into practice of the Supreme 
 Court of the State of New York is too 
 open, and he says " the usual preparations 
 are a college or university education, and three years' apprentice- 
 ship ; or, without the former, seven years' service under an attor- 
 ney. In either of these cases the chief-justice [who, by the way, 
 it may be stated, was at that time James Be Lancey] recommends the 
 candidate to the Governour, who thereupon grants a license to practice 
 under his hand and seal at arms. This being produced to the court, 
 the usual State oaths and subscriptions are taken together with an 
 oath for his upright demeanor, and he is then qualified to practice in 
 every Court of the Province. Into the County Courts, attornies are 
 introduced with still less ceremony, for our Governours have formerly 
 licensed all persons how indifferently so-ever recommended, and the 
 profession has been shamefully disgraced by the admission of men not 
 only of the meanest abilities, but of the lowest employments." 
 
 Thus early do we find recorded, and much earlier doubtless there 
 existed, a dissatisfaction in regard to the preparation of members of 
 the bar for the work they were to engage in. 
 
 There is no reason to believe that prior to the Revolution any 
 particular scheme of legal education existed in the Colony of New 
 York. 
 
HISTORY OP THE BENCH AND BAR OF NEW YORK 
 
 179 
 
 Chief-Justice Sharswood, in his prefatory memoir of Blackstone, 
 remarks (1859) : " It may be enough to say that the whole body of 
 American lawyers and advocates, with very few exceptions, since the 
 Rwolution have drawn their first lessons in jurisprudence from the 
 pages of Blackstone's Commentaries." 
 
 It is certain that no system similar to the Inns of Court, with 
 either its good or bad features, existed on this side of the Atlantic. 
 The fact is that while in sporadic cases a clerkship with a judge or 
 practicing attorney really brought with it direction as to the line of 
 study, and help in applying knowledge thus acquired, the rule was 
 that a man's development depended on himself. The personal equation 
 was everything. As Lord Campbell once remarked, " He who is not a 
 good lawyer before he comes to the bar will never be a good one after 
 it." Thus our early generation of lawyers were men who had to grap- 
 ple for themselves with principles of law, and with the cases in which 
 those principles had been applied. 
 
 While this system was lax and bad, and bore its legitimate fruit, 
 nevertheless strong 
 men and great lawyers •) 
 
 were not lacking under 
 the old regime. Nor 
 was the bar as a whole 
 weak ; its equal was 
 not probably to be 
 found in the country. 
 But weak men and 
 bad men could get in — 
 that was the unfortu- 
 nate feature ; in fact, 
 they could not easily 
 be kept out, so few were the safeguards. 
 
 The roster of the early bar of New York was small, but contained 
 some great names. 
 
 Thus, Valentine in his " History of the City of New York " (pub- 
 lished in 1853) gives a very interesting list of attorneys who practiced 
 in New York City between 1695 and the Revolutionary War. They 
 hardly exceed a score in all. Among them we note 
 
 In 1697, David Jamison, " Gentleman." 
 
 In 1698, James Emott, " Gent, and Atty. at Law." 
 
 In 1702, John Bridges LL.D. "in suit of Got. Cornbury." 
 
 In 1748, William Livingston, afterward Governor of the State of New Jersey, 
 
 and together with the historian William Smith, above quoted, joint editors of the 
 
 Colonial Statutes (Edition of 1752). 
 In 1768, Benjamin Kissam. 
 In 1769, Eichard Harrison ; of whom Chancellor Kent remarked that he was 
 
 a "scholar of the first order, and after the age of 70, he was studying the more 
 
 obscure and minor Greek poets with the ardor of youth." 
 
 >' -*■►.. 
 
 COLOMBIA COLLEGE IN 1758. 
 
180 HISTOKY OF THE BENCH AND BAR OE NEW YORK 
 
 Philip Livingston, Jr. 
 
 Thomas Jones. 
 
 Philip J. Livingston. 
 
 John William Smith 
 
 John D. Crimshire. 
 
 David Matthews. 
 
 Samuel Jones; the recorder of the City and "patriarch of the profession." 
 
 A sharp contrast, this list, to what Mr. David Dudley Field, in a 
 public address delivered some ten years ago, called attention to, to- wit, 
 that in the State of New York alone there were then over 11,000 
 lawyers ! 
 
 The venerable Benjamin D. Silliman, whose address at the memo- 
 rable dinner given him by the New York City bar, May 24, on the 
 sixtieth anniversary of his admission as an attorney, is reproduced in 
 this volume, made the following interesting statement on that occasion: 
 
 COLUMBIA COLLEGE IN 1897. 
 
 It was easier to become a thoroughly learned lawyer in those earlier days than 
 it is now. There was then less of law to he learned, and there was more of time in 
 which to learn it. The world was not in such a hurry then. Kent and Hamilton 
 and Spencer and Burr and Harrison and Wells and Emmett and Hoffman and 
 Jones, and their cotemporaries, had few books to study. Their libraries could almost 
 stand on their mantels. Tbey drew their knowledge from Plowden, Coke, Lyttle- 
 ton, the Year Books, Grotius, Puffendorf, Vattel, Emerigon, as well as Blackstone, 
 
 the fountains of the law When Chancellor Kent was admitted to the bar 
 
 in 1785 there was not a solitary volume of reports of any court in this country. 
 
 In 1867 the same distinguished lawyer addressed the graduating 
 class of the Law School of Columbia College, and thus described the 
 educational facilities of the earlier days : 
 
 Widely different have been, with few exceptions, the opportunities of legal 
 instruction in this country until within a comparatively recent period. The student 
 was required to enter the office of a practicing attorney, and there to pursue his 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 181 
 
 studies. He was at once engaged in the practice of that of which he had not learned 
 the principles. He became familiar, by daily observation and as a copyist, with 
 the forms of conveyancing and the phraseology of pleadings, without understand- 
 ing their reason. The proper order of his instruction was inverted. Blackstone's 
 Commentaries and, at a later period, Kent's (and sometimes other elementary 
 works) were placed in his hands for perusal in the intervals of office business ; but 
 there was perceptible to him little relation between their contents and the daily 
 routine of his clerical duties. As a general rule, it was impossible for the attorney 
 in whose office the student was engaged to give any material attention to his 
 studies, and his progress and attainments, therefore, lacked system, and were slow, 
 confused, and uncertain. A formal and superficial examination at length passed 
 him , to the bar, and he could rarely feel at home in his profession until he had 
 acquired, by subsequent laborious and anxious practice, a knowledge of very much 
 that he should have attained at the outset. He was thus obliged, at great disad- 
 vantage, to lay a large part of the foundation of his house after he had toiled long 
 upon the superstructure. 
 
 And in 1854 John Anthon wrote that the " fancied facility of be- 
 coming a lawyer, which has its origin in our unfortunate constitution, 
 fostered by an almost indiscriminate admission derived from the same 
 source, has crowded our courts of justice with uninstructed advocates 
 who have been thus cruelly deceived into positions painfully demon- 
 strating the poverty of their resources." 
 
 The clause in the constitution to which the learned writer referred 
 is article vi., section 8, of the constitution of 1846, providing that " any 
 male citizen of the age of twenty-one years, of good moral character, 
 and who possesses the requisite qualifications of learning and ability, 
 is entitled to admission to practice in all the courts of this state." 
 
 To show the force of Mr. Anthon's criticism just noted, a brief 
 review of the successive regulations adopted by the Supreme Court of 
 New York in regard to the admission of persons to practice before the 
 courts of the state will be in order. 
 
 At the October Term of the court in 1797 the court prescribed cer- 
 tain qualifications and requirements for admission, and first was a 
 seven-years' clerkship with a practicing attorney. But it was provided 
 that if after the applicant had attained the age of fourteen he should 
 have pursued " classical studies " for four years or less, such time act- 
 ually occupied could be deducted from the seven-years' clerkship. 
 But any such deduction had to be certified and allowed by a justice .of 
 the court after inquiry into the facts and the entry of an order in the 
 premises reciting the circumstances and specifying the time to be 
 allowed. These rules further recognized . a distinction between attor- 
 neys and counsellors at law by providing that after four-years' practice 
 as an attorney one should be entitled, of course, to practice as counsel. 
 Rule III. emphasized this by providing that " No person who shall be 
 admitted to practice as counsel shall thereafter practice also as an 
 attorney." This distinction was not long after done away with. 
 
 At the November Term in 1803 it was ordered " That every person 
 who shall have regularly pursued juridical studies under the direction 
 
182 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 or instruction of a professor or counsellor at law within this state for 
 four years, or shall have been admitted to the degree of counsellor at 
 law in any other of the United States (and practiced as such for four 
 years in that state) shall be admitted as counsel in this state," thus 
 annulling the rule theretofore obtaining. In the following year, at the 
 November Term, Rule III. of 1797 was amended by allowing attorneys- 
 at-law to become counsel, of course, after three years' practice instead 
 of four. 
 
 At the August Term, 1806, the court adopted a rule admitting only 
 such as should be natural-born or naturalized citizens of the United 
 States. 
 
 Passing over minor modifications we come to the rules adopted at 
 the October Term in 1829, to take effect January 1, 1830, which pro- 
 vided that no one should practice except after a regular admission and 
 license by the Supreme Court. The seven-years' clerkship was retained, 
 as well as the allowance of four years or less for time actually occupied 
 in the pursuit of classical studies, if evidenced in an order of a judge 
 of the court after inquiry. The certificate of the attorney with whom 
 the clerkship was served was required to be filed, and from its filing 
 the time of clerkship dated. After three years' practice as an attorney 
 a lawyer might be admitted as counsel, not, as formerly, " of course," 
 but " if he be found to be duly qualified." The citizenship requirement 
 was also continued. In 1837, some difficulties having been occasioned 
 by varying rulings as to what was proof of a pursuit of classical studies 
 sufficient under the rule, the court provided at length what should con- 
 stitute such proof, and the rules contained for the first time a most 
 interesting provision, to-wit, that " Any portion of time not exceeding 
 two years spent in regular attendance upon the law lectures in the 
 University of New York " should be allowed in lieu of an equal por- 
 tion of clerkship. 
 
 This is the first official recognition of the function of the law 
 school as an element in juridical studies, and affords a fitting opening 
 for a' digression by way of inquiry into the history of the law schools 
 of the state. Two years before this Mr. Benjamin Butler, attorney- 
 general of the United States, had, at the request of the council of the 
 New York University, submitted to Chancellor Mathews a " Plan for 
 the organization of a law faculty in the University of the City of New 
 York," in which he stated for the information of those " who may be 
 unacquainted with the present state of legal education in New York," 
 that at that time no other facilities for acquiring a legal education ex- 
 isted than those afforded by clerkships in the offices of the practicing 
 attorneys and solicitors. He continued in the following summary : 
 
 In the year 1793 Chancellor Kent, then at the bar of this eity, was appointed 
 professor of law in Columbia College, and subsequently delivered law lectures to 
 students in that institution. His appointment in 1798 to the bench of the Supreme 
 Court of this state, and his subsequent removal to the seat of government, with- 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 183 
 
 drew him from the professorship and for a long season employed him in other 
 duties. 
 
 On the expiration of his office as chancellor of the state in 1823 he returned to 
 this city, resumed his station as professor in the college, and in the course of three 
 or four years delivered to a class of law students the lectures since published by him 
 in his invaluable "Commentaries on American Law." His labors as professor have 
 for several years been discontinued, and, it is understood, are not to be resumed. 
 There has never been any public law school in this state, except that connected with 
 Columbia College during the continuance of Chancellor Kent's lectures. In a few 
 instances, gentlemen of the bar who had retired from the active labors of the pro- 
 fession have devoted themselves to the instruction of small classes of law students. 
 
 NEW YORK POST-OFFICE, 
 
 The most distinguished, and probably the most useful of these private institutions, 
 was that of the late Peter Van Schaak, of Kinderhook. This eminent lawyer died 
 in 1832 at the advanced age of eighty-four, and I am not aware that there is now 
 any private law' school in the state. 
 
 Courses of lectures on particular branches of the law have also been occasion- 
 ally given in the City of New York by members of the bar specially selected for the 
 purpose by voluntary associations. 
 
 Instruction in law offices is necessarily quite imperfect. A course of reading 
 is usually marked out for the student, and if he be industrious and attentive, he will 
 have opportunities to acquire considerable knowledge of the practice. But as gen- 
 tlemen engaged in extensive business can seldom find time to pay much attention 
 
184 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 to the improvement of their clerks, the progress of the latter in the principles of 
 legal science is usually tardy and laborious. In many cases they are left to grope 
 their way in the dark, with little or no assistance from the principals. And even 
 where this disadvantage is not experienced, the means of instruction in a law office 
 will yet be found too limited to meet the wants of the student. The consequence is 
 that' many of our attorneys and solicitors when licensed are very ill-qualified for 
 the duties of their profession ; and though they may afterward, by proper exer- 
 tions, acquire sufficient to guide them in the performance of their duties, much of 
 this knowledge will have been gained by slow degrees, and sometimes, it may be 
 feared, at the expense of their clients. 
 
 By the courtesy of Mr. William Allen Butler the writer is enabled 
 to quote from the minutes of the council of the university the follow- 
 ing extract of a resolution made after the plan prepared by his distin- 
 guished father had been submitted to the university : 
 
 At a meeting of the council held June 2, 1835, at the historic build- 
 ing in Washington Square, it was 
 
 Resolved, That this council do fully approve of the plan now submitted by the 
 Honorable Benjamin F. Butler for the organization of the law faculty, and that the 
 same be, and hereby is, adopted by this council, subject to such modifications as may 
 hereafter be deemed advisable. 
 
 Subsequently he was elected unanimously principal professor, and 
 entered upon the duties of his position in March, 1838, the primary 
 and junior departments of the proposed law school having been pre- 
 liminarily organized. The faculty consisted of three : 
 
 Benjamin F. Butler, professor of general law and the law of real 
 property, and principal of the faculty ; 
 
 William Kent, professor of the law of persons and of personal 
 property ; 
 
 David Graham, Jr., professor of the law of pleading and practice. 
 
 Shortly after the inauguration of this distinguished faculty, whose 
 addresses were published in pamphlet form, and are most interesting 
 and instructive, the university became financially embarrassed. Doc- 
 tor Mathews was succeeded as chancellor by Honorable Theodore Fre- 
 linghuysen. The law school seemed to be in advance of the require- 
 ments of the time. It could not be carried on upon its originally pro- 
 jected scale. But it remained alive, attracting some students, develop- 
 ing under the superintendence of the learned and cultivated John 
 Morton Pomeroy and the great jurist, Henry E. Davies ; occupying a 
 high plane of practical helpfulness under David R. Jacques, L.L.D., 
 such that the Honorable Noah Davis, after a long service as presiding 
 justice of the Supreme Court in the 1st department, remarked to the 
 writer in 1888 that its graduates came to the general term examinations 
 better equipped in the practical law than any others ; reaching its 
 highest success under the late lamented Austin Abbott, the foremost 
 legal educator of the century (by whom it was expected this article 
 should have been written, and whose system of instruction the writer 
 has described in a recent issue of the American University Magazine). 
 
HISTORY OP THE BENCH AND BAR OP NEW YORK. 
 
 185 
 
 However, as will have been seen from the extract above set forth, 
 this law school did not pretend to be the first, although it was the first 
 whose scheme of instruction was approved in the rules of the court. 
 
 BARTHOLDl'S " STATUE OF LIBERTY." 
 
 For example, the Litchfield Law School in Connecticut had been 
 established in 1784 and lived about fifty years, and under Mr. Reeve 
 and Judge Gould had trained many of the New England bar. And 
 Harvard College had established a law school in 1817 ; and Joseph 
 
186 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 Story, writing in the North American Review in 1817, reviewing a 
 "Course of Legal Study," which had been suggested by Professor 
 Hoffman of the University of Maryland, emphasized " the importance, 
 nay the necessity, cf the law school which the governors of Harvard - 
 College had so honorably to themselves established at Cambridge," 
 and, he continued, " no work can sooner dissipate the common de- 
 lusion that the law may be thoroughly acquired in the immethodical, 
 interrupted and desultory studies of the office and practicing coun- 
 sellor." Such a situation he, however, ackowledges is indispensable 
 after the student shall have laid the foundation in elementary prin- 
 ciples under the guidance of a learned and discreet lecturer. It was 
 this law school which the scholarly Simon Greenleaf in 1842 referred 
 to in dedicating his " Treatise on Evidence " to Joseph Story himself 
 as "the crowning benefit which, through your instrumentality, has 
 been conferred on our profession and country." 
 
 The law school of Columbia College was more significantly a 
 " school of law," perhaps, than any other in this state. Deriving its 
 first prominence from the devoted labors of James Kent, it acquired 
 its highest reputation after its regeneration in 1858 under Theodore 
 W. Dwight, who came from Hamilton Law School, and whose well and 
 widely known personal influences were such as to enable him in a 
 peculiar measure to impart to others that which he himself knew so 
 well. 
 
 His system, named by his name, is a common-sense method of in- 
 structing the student in the science he is investigating and of adding 
 enthusiasm to ambition for knowledge. He has himself most in- 
 terestingly described his own work, and justified his methods in an 
 article written for the Green Bag in April, 1889, to which little can be 
 added. 
 
 About the same time that Mr. Butler prepared the " plan " for a 
 law school above referred to, Mr. John C. Spencer (who was associated 
 with Mr. Butler and Mr. Duer in the revision of the statutes of the 
 state) prepared a plan for a law school at Hamilton College, from 
 which school, as has been noted, Doctor Dwight was later on called 
 to Columbia. 
 
 In 1851 the Albany Law School was organized as a component 
 part of the " University of Albany," created by special act of the 
 legislature in that year. In 1873 this institution united with Union 
 University, and the law school is now a department of the latter. 
 
 Mr. Irving Browne, who has predicted, most characteristically, that 
 "if Macaulay's New Zealander shall ever take his seat on a broken 
 arch of the Hudson River railroad bridge to sketch the ruins of the 
 capitol, the Albany Law School will still be in full vigor and pros- 
 perity," takes no account of the facts above recited when he records 
 that the only competitors of the Albany Law School when it was 
 founded were Harvard and Yale. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 187 
 
 It was not until May 30, J 845, that the Supreme Court of this 
 state amended the rules for admission of attorneys so as to allow one 
 year, on account of the clerkship to be served, for time spent in 
 regular attendance upon the law lectures, not only of the New York 
 University, but also of " Cambridge University or the law school con- 
 nected with Yale College." 
 
 But Mr. Browne is right in pointing out that subsequently to the 
 constitution of 1846 it was enacted that the diploma of the Albany 
 Law School should entitle the holder to admission to practice without 
 any examination at bar. No wonder John Anthon made the lament 
 above quoted when the historiographer of this school himself char- 
 acterizes this as " loose." 
 
 This school has a glittering roll of names in its faculty register, 
 from Chancellor Walworth, its first president, including Ira Harris, 
 Amos Dean, Amasa J. Parker, and Judge William F. Allen, down to 
 George W. Kirchway, William A. Learned, Matthew Hale, Judson S. 
 Landon, Charles T. P. Spoor, Hiram E. Sickels, Irving Browne, Na- 
 thaniel C. Moak and James W. Eaton, Jr., its present faculty. 
 
 The Buffalo Law School, founded in 1887, and the New York 
 Law School, founded on the resignation of Professor Dwight from 
 Columbia in 1891, are still in their minority, but each has made a 
 place for itself. So also the Metropolis Law School, which initiated 
 the practice of evening sessions, which attained a well-deserved popu- 
 larity, but is now merged in the New York University Law School as 
 its evening department, and the former head of which, Clarence D. 
 Ashley, has recently been elected to succeed the lamented Austin 
 Abbott as dean of the joint schools. 
 
 The law school of Cornell University is the last one of the New 
 York State law schools to which we can refer. 
 
 The original faculty of the school, which opened in the autumn of 
 1887, had for its dean the Honorable Douglas Boardman, formerly a 
 partner of Judge Finch, now of the Court of Appeals, and himself 
 until 1887 a justice of the Supreme Court. With him were associated, 
 as professors, Harry B. Hutchins, Charles A. Collin, Francis M. Bur- 
 dick, Moses Coit Tyler, and Herbert Tuttle ; while as non-resident 
 lecturers were secured the Honorable Francis M. Finch, Honorable 
 Daniel Chamberlain, Honorable William F. Cogswell, and the Honor- 
 able Theodore Bacon. This school has avoided committing itself to 
 any distinctive method of instruction, unless, as has been said, " in- 
 struction of the more advanced students by means of the study of 
 specially selected cases be enough to constitute a special system." It 
 has a well-defined position and a high reputation due to the character 
 not only of its instructors but of its graduates as well. 
 
 But while the reference in the rules of 1837 to the law school of 
 the University of New York started us upon this digression, enough - 
 has been detailed to serve the purposes of this article, if we add by 
 
188 HISTOEY OP THE BENCH AND BAR OP NEW YORK 
 
 way of summary the suggestion that by reason of competitive and 
 other stimulative influences, and under the wise counsel of deliberative 
 bar associations, the law schools of this state are advancing to a more 
 perfect system and method of instruction. The lawyer of the twentieth 
 century will be without excuse if he be not trained beforehand for the 
 efficient performance of his professional duties. 
 
 As the associate dean of the Cornell Law School said in January, 
 1 894, before the State Bar Association, this state is now far in advance 
 of most of her sister states in the matter of requirements for admis- 
 sion to practice. 
 
 The functions of the section of legal education of the American 
 Bar Association would form a most tempting field for another digres- 
 sion. But the writer must content himself, considering the limitations 
 placed upon this article, with referring to the annual reports of that 
 great association. It serves, as do also the various state bar associa- 
 tions, as a great educational factor along the lines of " forensic 
 
 duties " and " professional ethics," two 
 subjects much emphasized in Mr. But- 
 ler's "plan," and is therefore not to 
 be ignored in a sketch of the growth 
 of legal education. 
 
 To resume, the rules of court were 
 somewhat modified in 1858 at the 
 August Term, pursuant to section 470 
 of the code of 1852. These changes, 
 the writer believes, were instituted by 
 the court in consequence of a report 
 made by the then committee on ad- 
 missions in the 1st department, call- 
 ing attention to the lamentable lack 
 
 NEW YORK SOCIETY LIBRARY, 1795. „ : . .-, . „ 
 
 of proper preparation on the part of 
 those applying for examination. The rules were made stricter in view 
 of certain abuses which had crept in and to which attention was called 
 in said report. All applicants were to be examined in open court 
 before the general term on specified days, " and at no other time or 
 place," and no private examinations were to be permitted. 
 
 Then, also, for the first time, the subjects upon which satisfactory 
 examination should be had were specified. This is notable as marking 
 a great step forward in legal education and in raising the standard of 
 professional attainments. The subjects required were : Law of Real 
 and Personal Property, Contracts, Partnerships, Negotiable Paper, 
 Principal and Agent, Principal and Surety, Insurance, Executors and 
 Administrators, Bailments, Corporations, Personal Bights, Domestic 
 Relations, Wills, Equity Jurisprudence, Pleadings, Practice, and 
 Evidence. 
 
 With the more recent requirements the reader is familar and has 
 
HIST0ET OF THE BENCH AND BAB OF NEW YOEK 189 
 
 ready access to the books containing them. For example, the great 
 change in 1871, when the whole matter of admission to the bar was 
 placed under the control of the Court of Appeals, and the more recent 
 and perhaps more important change of 1895, providing for uniform 
 examinations in all the various judicial departments. 
 
 It would be interesting could the writer include in this sketch the 
 anecdotes illustrative of the lax methods of examination and education 
 for the bar of this state which have been narrated to him by veteran 
 members of that bar whose memories go back to the constitution of 
 1846 and earlier. But that would perhaps be out of place. So also 
 the limits set to such an article as this preclude any inquiry into the 
 early history of legal education ; otherwise we could review with 
 great profit the principles recognized by the old Roman jurists in the 
 inculcation of those fundamental rules of conduct that have shaped 
 civilization and so vitally affected the relations of mankind. We could 
 touch upon the privileges the young law student ("auditor") enjoyed 
 in the days when it was held a great honor to teach the civil law, and 
 when, as Cicero said, " The houses of the most eminent citizens were 
 thronged with disciples." We could enlarge upon the views Justinian 
 entertained as to the necessity of elementary ground-work before 
 attempting to master practical law. 
 Comment would not be uninteresting 
 upon the claim that the awakening 
 of interest in legal study in the elev- 
 enth and twelfth centuries preceded 
 rather than succeeded the improve- 
 ment in the law itself — a reasonable 
 and demonstrable assertion, surely. 
 A treatise could be, and has been, 
 written upon the glossa and the glos- 
 sators, and the helpful light thrown 
 on some still surviving errors in method, illustrated by the experience 
 of these faithful specialists. 
 
 But all this has been exhaustively done by others. It is clear that 
 for the purpose of this brief resume we are concerned only with such 
 local conditions and developments as have been already briefly 
 summarized. 
 
 The writer closes by calling attention to the fact emphasized by 
 John Norton Pomeroy, that if the necessity for a liberal education in 
 the principles of the law was great in the case of the educated youth 
 of England, as Sir William Blackstone insisted, much greater is it in 
 this country because of our methods and forms of government. Where 
 a legislature can by its enactment change the whole method of pro- 
 cedure of a state, it is surely important that those who may be elected 
 to serve in that body be familiar with the fundamental principles of 
 the law. For as Chancellor Kent once observed in addressing " The 
 
 NEW YORK SOCIETY LIBRARY. 
 
190 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 Law Association " in New York (October 21, 1836), " Legal learning is, 
 in a very considerable degree, indispensable to all persons who are in- 
 vited to administer any material portion of the authority of govern- 
 ment, and especially if it becomes the province of their trust to make, 
 amend, and digest the law of the land, or judicially to expound and 
 apply its provisions to individual cases in the regular course of jus- 
 tice." Therefore we welcome the fact that not only by our law schools, 
 but in our universities, colleges, and even our academies, social and 
 municipal law is generally diffused and men grow up into familiarity 
 with the principles of the constitution under which they live, and learn, 
 by varying experiences, respect and fear for the law by which they 
 govern and are governed. 
 
THE ASSOCIATION OF THE BAR. 
 
 N the later colonial chronicles of New York there are few 
 things more interesting and significant than the organized, 
 persevering and successful opposition interposed by the 
 legal profession to the increasing encroachments of the 
 British crown. As early as 1744 the lawyers of New York entered 
 into an association to free the judiciary from the exercise of the king's 
 prerogative. Mr. H. B. Dawson, in his tract on the Sons of Liberty, 
 traces the inception of that society in New York to the formation of 
 this primitive " bar association." None of the records of the associa- 
 tion (so-called) have come down to us ; and, indeed, it probably never 
 presented a public character as a formally officered body, but operated 
 quite spontaneously, the bar as a whole readily following the leader- 
 ship of a few active spirits. When, in 1763, the royal lieutenant- 
 governor, Cadwallader Colden, undertook to enforce his novel doglna 
 that the governor and council were entitled to review upon appeal the 
 findings of a jury concerning questions of fact, the bar of New York 
 was unanimous in resistance to this arbitrary proceeding, and it is an 
 exceedingly impressive fact that the lieutenant-governor was unable to 
 find a single lawyer willing to argue his unjust cause when it came to 
 be judicially tested. This unpleasant experience led him, in his corre- 
 spondence with the home government, to assail the " association " of 
 the provincial bar with much severity. He bitterly complained that 
 the association set up by the profession of the law in New York was 
 exercising a most " dangerous influence," which tended uniformly to- 
 ward " inlarging the powers of the popular side of government " and 
 " depreciating the powers of the crown " ; and he suggested energetic 
 measures for putting an end to the " Dominion of the Lawyers." ' 
 
 This early combination of legal practitioners in New York bears, 
 of course, no ancestral relation to the great Association of the Bar of 
 to-day ; but it is interesting to recall that a century and a half ago the 
 New York bar assumed, in a united way, public functions very similar 
 to those which have characterized the transactions of the existing 
 association from the outset of its career. 
 
 The commanding position held by the bar in colonial times was 
 preserved for more than half a century after the Revolution. Through- 
 out all that period the power and dignity of the legal profession were 
 too well recognized to need special assertion of any kind. The bar in 
 those days was a public and social establishment of the most eminent 
 
 1 See pp. 64, 90, of this volume. 
 191 
 
192 
 
 HISTOEY OF THE BENCH AND BAR OP NEW YORK 
 
 order, because, as an entity, it stood, in universal estimation, at an 
 elevation well corresponding to the attainments and virtues of the 
 great men who adorned it. 
 
 The adoption of the constitution of 1846 marked a new era for the 
 bar. The ancient distinctions between attorney, solicitor, and coun- 
 sellor were abolished, and all lawyers, from the humblest to the most 
 renowned, were placed on the same nominal footing. The qualifica- 
 tions for admission to the bar were made less exacting, thus rendering 
 it not difficult for anyone to enter the ranks of the profession, and 
 finally sweeping alterations were made in the judiciary system, whereby 
 elective judges were substituted for appointive. Moreover, a new 
 system of procedure shortly came into vogue, largely increasing the 
 
 OLD TAMMANY HALL — NOW OFFICE OF THE NEW YORK u StrN." 
 
 discretionary powers of the judges, and bestowing upon them an 
 immense patronage in the appointment of receivers and referees and in 
 the granting of commissions and allowances. The spirit of the times 
 contributed also, in a potent manner, to the changed conditions of the 
 legal profession. The vast expansion of wealth and population, the 
 growth of great corporations, the widespread demoralization attending 
 the civil war, the development of the speculative spirit, and the steady 
 degeneration of political and official morality in the city and the legis- 
 lature were not without effect upon the legal profession. 
 
 In truth, during the years following the war— the culminating 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 193 
 
 period of misrule and political corruption in the city of New York — 
 there was a strong popular disposition to hold the bar in no small 
 measure responsible for the prevailing scandals and evils. It was 
 openly remarked " that its glory and dignity were gone, that it had 
 ceased to be a noble profession and had become merely a trade with 
 the rest. " 1 The gravest suspicions were entertained against the integrity 
 of the judiciary, and it was widely believed that the administration of 
 justice was disgraced by monstrous improprieties, yet for a long time 
 there were no signs of any movement on the part of the bar in behalf 
 of reforms. 2 In 1869 the New York Times, which had already begun 
 its crusade against the "ring," vigorously criticised the bar for its 
 apparent indifference, and urged it to take steps for its own vindication 
 and for the purification of the bench. " If it be the supineness, the 
 guilty silence of the lawyers, as officers of the people's courts, which 
 have brought us to our present pass," said the Times, "it is their 
 reawakened public spirit and activity which must help us back to a 
 
 better state things We must again proclaim that the bar must 
 
 lead the way." 3 
 
 The necessity set forth in these Times articles had, however, been 
 anticipated by a number of the leading members of the profession, who 
 had conferred together at intervals during the year, and" taken the 
 preliminary steps toward organizing a bar association. The following 
 pledge had been circulated for signatures : 
 
 The undersigned, Members of the Bar of the City of New York, believing that 
 the organized 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, do hereby mutually agree to unite in forming an Association for such 
 purposes. 4 
 
 1 See the address to the members of the bar of the city 
 of New York, Bar Association report, 1870. 
 
 2 The reader will, of course, understand that the severe 
 public criticisms of the bench and bar at that period were 
 provoked by exceptional manifestations and events, for 
 which only a portion of the profession and the judiciary 
 were blameworthy. This unworthy element was in no 
 manner representative of the distinguishing spirit and 
 character of the bench and bar of New York. The 
 organization of the Association of the Bar, in which so 
 many reputable lawyers promptly joined, was in itself a 
 complete vindication of the profession as a whole ; and 
 as for the judiciary, the majority of its members were 
 entirely above suspicion, even in those times. 
 
 3 New York Times, December 16, 1869. 
 ' The • following is a complete list of the original 
 
 signers: 
 
 Wm. M. Evarts. *A. Underhill. 
 
 ♦Henry Nicoll. *D. D. Lord. 
 
 William Allen Butler. *F. N. Bangs. 
 
 *John K. Porter. *Henry H. Anderson. 
 
 *A. J. Vanderpoel. *Edwards Pierrepont. 
 
 *C. Van Santvobrd. *B. H. Owen. 
 ♦Thos. C. T. Buckley. H. M. Alexander. 
 
 D. B. Eaton, Ashbel Green. 
 
 Wm. M. Prichard. 
 
 Wm. G. Choate. 
 
 Richard S. Emmet. 
 ♦Clarkson N. Potter. 
 ♦Thos. H. Hodman. 
 *B. F. Dunning. 
 ♦John J . Townsend. 
 
 Sidney Webster. 
 
 C. A. Seward. 
 ♦Charles M. Da Costa. 
 *Ang. F. Smith. 
 
 Luther R. Marsh. 
 
 Joseph H. Choate. 
 
 Chs. F. Southmayd. 
 *Waldo Hutchins. 
 ♦Lucien Birdseye. 
 ♦Charles P. Crosby. 
 *Benjarnin K. Phelps. 
 
 Abm. R. Lawrence, Jr. 
 
 Charles Coudert, Jr. 
 *L. L. Coudert. 
 
 John Erving. 
 *John H. Piatt. 
 *S. J. Tilden. 
 
 H. M Rugglee. 
 
 Everett P. Wheeler. 
 ♦Charles A. Rapallo. 
 ♦Charles P. Kirkland. 
 
 W. W. Macfarland. 
 
 Charles A. Davison. 
 
 F. R. Coudert. 
 ♦Charles Jones. 
 *C. J. De Witt. 
 
 J. Frederick Kernochan. 
 *J. W. Edmonds. 
 
 William Hildreth Field. 
 ♦Charles H. Glover. 
 
 Buchanan Winthrop, 
 ♦Frank E. Kernochan. 
 
 Elial F. Hall. 
 ♦John M. Knox. 
 
 Herbert B. Turner. 
 ♦Charles P. Kirkland, Jr. 
 ♦John McKeon. 
 
 Charles E. Butler. 
 
 S. P. Nash. 
 ♦Samuel E. Lyon. 
 ♦Alexander Hamilton, Jr. 
 ♦David Dudley Field. 
 *E. W. Stoughton. 
 
194 
 
 HISTORY OF THE BENCH AND BAG OF NEW YORK 
 
 At the close of December, 1869, 231 signatures having been 
 obtained, Messrs. James C. Carter, Albert Mathews, and Edmund 
 Randolph Eobinson were appointed a committee to call a meeting for 
 the purpose of organization. 
 
 This truly historic meeting was held on the evening of the 1st of 
 Feburary, 1870. Edgar S. Van Winkle presided. Nearly every one of 
 the subscribers was in attendance. Although there was nothing in the 
 pledge to indicate that the signers had in contemplation any partic- 
 ularly grave considerations of public or professional duty or interest, 
 all the speakers manifested the utmost seriousness in their remarks. 1 
 The addresses recognized the solemn obligation resting upon the bar to 
 elevate the professional standards, and to correct abuses and extirpate 
 infamies in the administration of justice. " It is not to be concealed," 
 said Judge James Emott, " that there is a deep undertone of feeling 
 among the lawyers who have signed this call, and who make up this 
 
 •James Emott. 
 
 Benj. D. Silliman. 
 ♦John SloSBOn. 
 
 Charles A. Peabody. 
 *E. Louis Lowe. 
 ♦George N. Titus. 
 ♦John P. Crosby. 
 ♦Albon P. Man. 
 
 John E. Parsons. 
 ♦E. C. Benedict. 
 ♦J. S. Bosworth. 
 ♦Edgar S. Van Winkle. 
 ♦G. M. Speir. 
 ♦Henry A. Cram. 
 ♦F, F. Marbury. 
 ♦Wm. E. Curtis. 
 ♦Murray Hoffman. 
 ♦Hamilton W. Eobinson. 
 ♦J. E. Burrill. 
 
 J. W. Gerard, Jr. 
 ♦Alvin C. Bradley. 
 ♦George T. Strong. 
 ♦William Betts. 
 
 J. W. Ostrander. 
 ♦W. A. Ogden Hegeman. 
 
 William Barrett. 
 ♦David Thurston. 
 
 William Henry Arnoux. 
 
 Charles C. Jones, Jr. 
 
 Franklin A. Wilcox. 
 
 Theodore M. Davis. 
 
 Charles D. Ingersoll. 
 ♦Edm'd Randolph Eobin- 
 son. 
 ♦Henry R. Winthrop. 
 
 Henry Hilton. 
 ♦John S. Jenness. 
 ♦M. Van Buren Wilcoxson. 
 
 E. L. Fancher. 
 ♦Charles F. Sanford. 
 
 John Whipple. 
 ♦F. S. Stallknecht. 
 ♦Grosvenor P. Lowrey. 
 
 Andrew Stewart. 
 
 ♦Edward Holland Nicoll. 
 
 Frederick Smyth. 
 ♦Lyman W. Bates. 
 ♦James S. Hugging. 
 
 John Berry. 
 ♦F. J. Fithian. 
 
 Edward Patterson. 
 
 E. Ellery Anderson. 
 ♦Jos. B. Lawrence. 
 
 Charles E. Strong. 
 
 A. P. Whitehead. 
 ♦T. E. Strong. 
 
 Wm. J. Hoppin. 
 ♦Lewis L. Delafleld. 
 ♦Charles F. Blake. 
 ♦Livingston K. Miller. 
 
 Wm. S. Opdyke. 
 
 John E. Ward. 
 
 Charles B. Stouguton. 
 
 Albert Mathews. 
 
 Flamen B. Candler. 
 ♦Philo T. Buggies. 
 ♦B. Koelker. 
 ♦William Tracy. 
 
 Ch. Francis Stone. 
 
 George W. Soren. 
 
 George M. Miller. 
 
 Wheeler H. Peckham. 
 ♦Theodore W. D wight. 
 ♦Oscar Smedberg. 
 ♦Henry J. Scudder. 
 ♦Townsend Scudder. 
 
 James P. Lowrey. 
 
 Henry D. Sedgwick. 
 ♦Richard H. Bowne. 
 ♦Smith Clift. 
 
 Charles D. Burrill. 
 
 George C. Barrett. 
 
 Henry E. Beekman. 
 ♦Charles B. Moore. 
 
 Noah Davis. 
 
 Julien T. Davies. 
 
 Gerard Beekman. 
 
 Eugene H. Pomeroy. 
 
 ♦Hamilton Morton. 
 ♦Thomas C. Ingersoll. 
 
 Eichard H. Clarke. 
 ♦Frederick Kapp. 
 
 Edmund Wetmore. 
 
 C. A. Hand. 
 ♦F. H. Churchill. 
 ♦Henry E. Davies. 
 ♦E. M. Harrison. 
 
 Eobert Sewell. 
 
 E. G. Drake, Jr. 
 
 Henry B. Hammond. 
 ♦W. Q. Morton. 
 ♦Henry Whittaker. 
 ♦Thomas M. Wheeler. 
 
 Charles E. Whitehead. 
 ♦John N. Whiting. 
 ♦G. M. Ogden. 
 ♦Eobert Benner. 
 
 Elbridge T. Gerry. 
 ♦Charles Tracy. 
 ♦Charles Edward Tracy. 
 
 J. Evarts Tracy . 
 ♦George DeForest Lord. 
 ♦John C. Dimmick. 
 
 J. S. Winter. 
 ♦Joshua M. Van Cott. 
 ♦George W. Parsons. 
 ♦Hiram Barney. 
 ♦John Sherwood. 
 ♦Walter L. Livingston. 
 
 Albert Stickney. 
 ♦Henry A. Tailer. 
 
 Alfred L. Edwards. 
 
 Aug. E. Macdonough. 
 
 W. W. Goodrich. 
 ♦S. Merrihew. 
 
 D. C. Van Cott. 
 Beverly Eobinson. 
 
 William Jay. 
 
 John A. Weeks. 
 ♦Hooper C. Van Vorst. 
 ♦George H. Forster. 
 
 James F. Dwight. 
 
 James C. Carter. 
 
 Jos. Larocque. 
 ♦W. Stanley. 
 ♦Francis C. Barlow. 
 ♦Charles H. Hunt. 
 
 John S. Davenport. 
 ♦John J. Latting. 
 
 John L. Cadwalader. 
 ♦Edward H. Anderson. 
 ♦Charles Nettleton. 
 ♦John A. Foster. 
 
 Smith E. Lane. 
 
 Thomas E. Stillman. 
 
 Thomas H. Hubbard. 
 ♦Morris S. Miller. 
 ♦John G. Vose. 
 
 Dwight H. Olmstead. 
 ♦James I. Roosevelt. 
 
 Frederick E. Mather. 
 
 William Watson. 
 
 John H. Eisley. 
 
 C. B. Wheeler. 
 ♦Edgar Ketchum. 
 
 A. P. Ketchum. 
 
 E. Ketchum, Jr. 
 ♦Fohn Fitch. 
 ♦Samuel G. Glassey. 
 ♦James E. Jessup. 
 ♦Joseph B. Varnum. 
 ♦P. W. Turney. 
 ♦Osborne E. Bright. 
 
 Benj. T. Kissam. 
 
 Henry P. Townsend. 
 
 ♦ Deceased. 
 
 1 The speakers were : Henry Nicoll, Edwards Pierre- 
 pont, James Emott, Samuel J. Tilden, and William M. 
 EvartB. 
 
HISTOKY OF THE BENCH AND BAK OF NEW YORK 
 
 195 
 
 VVHO I (S )]^Q£KS0LLp ^^.n.y. tribune. //n.mJU.ii>u..'/t.i<iiir'wro nrrnmKtramm(pl 
 
 
 -/ 
 
 TWO GKEAT- QUEST* 0J*,5?. 
 
 ^a ^i/\-/\ va ^< 
 
 'Who stole the p tor urs M9Nm? - do tell .ny.times. 
 
 'TWAS H»M. 
 
 TWEED CARTOONS BY THOMAS NAST, " HARPER'S WEEKLY," 1871. 
 
196 HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 significant meeting, upon certain subjects. There is an undertone in 
 what has been said which it would require but little to bring into dis- 
 tinct utterance. We, as lawyers, feel deeply the complaints which are 
 rife of abuses in the practice of the law and in the administration of 
 the law." And the Honorable Samuel J. Tilden went even further, 
 using these trenchant words : 
 
 As a class, as a portion of the community, I do not desire to see the bar com- 
 bined, except for two objects. The one is to elevate itself ; to elevate its own standards ; 
 the other is for the common and public good. For itself nothing; for that noble 
 and generous and elevated profession of which it is the representative, everything. 
 
 It cannot be doubted — we can none of us shut our eyes to the fact — that there 
 has been, in the last quarter of a century, a serious decline in the character, in the 
 training, in the education, and in the morality of our bar, and the first work for 
 this association to do is to elevate the profession to a higher and a better standard. 
 If the bar is to become merely a method of making money, making it in the most 
 convenient way possible, but making it at all hazards, then the bar is degraded. 
 If the bar is to be merely an institution that seeks to win causes, and to win them by 
 back-door access to the judiciary, then the bar is not only degraded but it is 
 corrupt 
 
 The bar, if it is to continue to exist, if it would restore itself to the dignity and 
 honor which it once possessed, must be bold in defense, and, if need be, bold in 
 aggression. If it will do its duty to itself, if it will do its duly to the profession 
 which it follows and to which it is devoted, the bar can do everything else. It can 
 have reformed constitutions, it can have a reformed judiciary, it can have the 
 administration of justice made pure and honorable, and can restore both the judi- 
 ciary and the bar until it shall be once more, as it formerly was, an honorable and 
 an elevated calling. 
 
 It should not be supposed that the association had in view at the 
 start any specific plans for the practical exercise of that boldness in 
 aggression which -Mr. Tilden counselled. The time had not yet arrived 
 for the organized movement against the Tweed King. The formation 
 of the Bar Association antedated by many months the damning dis- 
 closures which marked the beginning of the formal campaign ; indeed, 
 it was not until the middle of 1871 — a year and a half after the first 
 bar meeting — that the popular uprising came. Consequently the 
 original objects of the association did not at all include schemes of 
 immediate reform operations ; such schemes, announced by a dig- 
 nified association of lawyers, would have seemed precipitate in the as 
 yet unawakened state of public opinion. 1 But it is none the less true 
 that in the establishment of the Association of the Bar in February, 
 1870, the growing sentiment of the community first found distinct 
 expression ; and the Bar Association was truly one of the pioneers in 
 the grand enterprise of the city's delivery. Moreover, the more clear- 
 seeing of the founders of the association had a thorough understanding 
 
 1 Mr. Henry Nicoll, the principal speaker at the bar formed in a spirit of hostility— that its object is attack, 
 
 meeting, deemed il unwise to provoke popular criticism I hasten, for myself and every other gentleman asso- 
 
 of the association by any semblance of aggressive ciated with me, to deprecate any such idea, and to dia 
 
 purpose. "I fancy, " said he, "that there are not a avow any such intent.' 1 
 few who will perhaps think that it (the association) is 
 
HISTORY OF THE BENCH AND BAK OP NEW YORK 
 
 197 
 
 of the gravity of the situation with which that body would, logically, 
 have sooner or later to deal. It was not merely the elevation of profes- 
 sional standards, it was the very salvation of the bench, that was to 
 require most conscientious and determined endeavor. For the cor- 
 rupt character of a portion of the judiciary was already very well 
 
 "WHAT AKE YOU LAUGHING AT? TO THE VICTOR BELONG THE SPOILS." 
 
 (Tweed cartoon, Harper's Weekly, after the election of 1871.) 
 
 known to the bar, and recent notorious doings had made the humil- 
 iating truth odiously conspicuous. 
 
 At a second meeting, February 15, 1870, the association was 
 organized permanently under the name of the " Association of the 
 Bar of the City of New York," a constitution and by-laws were 
 
198 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 adopted, and officers were chosen, as follows : President, William M. 
 Evarts ; vice-presidents, Samuel J. Tilden, James W. Gerard, Joseph 
 S. Bosworth, John Slosson, and Edgar S. Van Winkle, ; treasurer, 
 Albon P. Man ; corresponding secretary, John Bigelow. The objects 
 of the association were thus defined in the constitution : 
 
 To maintain the honor and dignity of the profession of the law, to increase its 
 usefulness in promoting the due administration of justice, and to cultivate social 
 intercourse among its members. 
 
 The by-law governing admissions to membership was so drawn as 
 to afford reasonable safeguards against the entrance of unworthy indi- 
 viduals. A committee on admissions was appointed, consisting of 
 twenty members. Candidates against whom five negative votes were 
 cast in the committee were not to be recommended to the association ; 
 and candidates recommended for admission were to be voted on by 
 ballot in the association, one negative vote in every five being suffi- 
 cient for exclusion. 
 
 The first public action of the association, taken two or three days 
 ■> after its formal organization, was not without significance. On the 
 13th of February the city was stirred by the news of the attempted 
 assassination, the evening before, of Mr. Dorman B. Eaton. Mr. Eaton 
 had made himself obnoxious to certain interests by the part he took 
 in the Gould-Erie litigation and other matters more or less involving 
 the same interests ; and it was a natural inference that the attempt on 
 his life was inspired by resentment. The Bar Association promptly 
 met, adopted resolutions denouncing the outrage, and offered a reward 
 of $5,000 for the conviction of the offender. Although nothing came 
 of this action, it was a timely manifestation of the earnest spirit which 
 actuated the bar in its newly organized capacity. 
 
 The association was incorporated by an act of the legislature 
 passed April 28, 1871. In the summer of that year the Times began 
 its publication of the city accounts, demonstrating by official figures 
 the complete truth of all the charges that had been made against 
 Tweed and his associates ; and in the November following the ring 
 was overwhelmed at the polls. 
 
 The Bar Association now entered actively upon the work of investi- 
 gating the city judiciary and ousting the corrupt judges from office. 
 On November 14, seven days after the election, a special meeting was 
 held, at which a committee 1 was appointed with instructions " to inquire 
 into the truth of the charges that have gained credit in this com- 
 munity, reflecting upon the administration of justice in this city, and 
 to ascertain whether the same have a just foundation in trustworthy 
 evidence, . . . and to report whether it is expedient for this association 
 to take any and what measures in the premises." The committee of 
 inquiry unanimously reported to the association, January i, 1872, that 
 
 1 The members of this committee were : Wheeler H. Speir, William M. Prichard, James C. Carter, and 
 Peckham, Noah Davis, John Slosson, Gilbert M. Joshua M. Van Cott. 
 
HISTORY OF THE BENCH AND BAR OE NEW YORK 199 
 
 it had ascertained the charges to be well founded, and that they were 
 of such character as to call for investigation by the legislature and the 
 removal from office, by the methods provided by law, of the guilty 
 judges. The offenses established by the inquiry, continued the com- 
 mittee, consisted 
 
 In the gross abuse of the powers of such judges and the courts held by them, 
 respectively, in the granting of injunctions, in the creating of receiverships and the 
 appointment of receivers and transferring to them vast amounts of property, both 
 of corporations and individuals ; in abusing the power to appoint referees and in 
 making excessive allowances to receivers, referees, and others for purposes not 
 justified by law; in abusing their authority in the manner of holding courts; in 
 making improper ex parte orders out of court, and in deciding causes and motions 
 without a hearing in court ; in abusing the writ of habeas corpus, by using or 
 permitting its use for unlawful purposes, and in improperly withholding relief 
 under the writ ; in attempting the intimidation of counsel in the discharge of duty 
 toward their clients, and in showing undue favoritism to other counsel and attor- 
 neys for their personal or professional advancement ; in gross and indecorous 
 conduct while sitting in court, tending to bring the office of judge into popular 
 contempt ; in various acts indicating the influence of corruption upon their official 
 conduct and decisions ; and finally in so perverting judicial authority by the use of 
 devices under the forms of law as to enable individuals and corporate officers to 
 usurp and exercise unlawful powers, seize and convert property, accomplish 
 nefarious designs and evade justice. 
 
 This report was approved by the association and a memorial to 
 the legislature was prepared, in which it was urged that a rigid inquiry 
 be instituted, and " such remedies be applied as the results of that 
 inquiry may demand." A committee of sixteen 1 was selected to 
 present the memorial at Albany. Early in the next month (February, 
 1872), specific charges having been drawn against George G-. Barnard 
 and Albert Cardozo, justices of the Supreme Court, the judiciary com- 
 mittee of the assembly began the taking of testimony. Later, similar 
 charges against John H. McCunn, justice of the Superior Court of the 
 City of New York, were submitted and considered. The counsel for 
 the Bar Assopiation throughout the resulting proceedings were Joshua 
 M. Van Cott, John E. Parsons, and Albert Stickney. 
 
 The issue of these memorable prosecutions of the three ring 
 judges was a complete victory for the Bar Association. On May 2 
 Judge Cardozo resigned to avoid impeachment ; July 2 Judge McCunn 
 was removed from office by the unanimous vote of the senate ; and 
 August 19 Judge Barnard was adjudged guilty and removed by the 
 senate and Court of Appeals sitting as a High Court of Impeachment, 
 the decision in this case also being unanimous. Barnard, in addition 
 to removal, was by a vote of 33 to 2 forever disqualified from again 
 holding public office. The Bar Association and the public contributed 
 in the aggregate nearly $30,000 for the expenses of the prosecutions. 
 
 1 Noah Davis, Joseph H. Choate, E. H. Lawrence, Jr., dolph Robinson, Joshua M. Van Cott, Andrew Board- 
 Charles H. Hunt, Morris L. Miller, John B. Parsons, man, George M. Gilbert, Charges Tracy, Stewart L. 
 John McKeon, Stephen P. Nash, Henry Nicoll, E. Ran- Woodford, and William R. Martin. 
 
200 
 
 HISTORY OF THE BENCH AND BAU OF NEW YOKK 
 
 Much the largest part of this amount was given by members of the 
 association, but subscriptions were received also from banks, insurance 
 and trust companies, and citizens who appreciated the importance of 
 the undertaking for reforming the judiciary. 
 
 The work thus accomplished was in important respects the vital 
 achievement ' of the whole reform movement. Considered in its 
 strictly popular phases, the destruction of the Tweed Ring, as an 
 organized band of plunderers, was certainly a splendid demonstration 
 of the irresistible power of aroused public sentiment for the immediate 
 correction of even the worst government ; yet no one will assert that 
 it definitely brought to an end the possibility of systematic misrule 
 and corrupt rule in New York. The renovation of the ordinary public 
 
 WASHINGTON BUILDING. 
 
 PRODUCE EXCHANGE. 
 
 offices of New York effected by the people's uprising in 1871 of course 
 had an enduring value of a certain kind ; for it afforded both a stimu- 
 lating example and a stern warning for all the future. But it is in the 
 very nature of popular government that grave abuses in official admin- 
 istration will reappear from time to time notwithstanding occasional 
 successful applications of the most radical correctives ; and despite 
 the great reformation of 1871 it is notorious that the standards of the 
 city government of New York have frequently, in the years which have 
 elapsed since then, been veTy remote from the ideal. On the other 
 hand, the purification of the judiciary by the efforts of the Bar Associa- 
 tion proved to be final, and at no time has this portion of the work of 
 1871-72 had to be done over , again. It has never since been found 
 needful to formulate indictments like those brought against Judges 
 Barnard, Cardozo, and McCunn ; and on only one occasion has the 
 
CsOsryi.tJuiU' &. c/ddj 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 201 
 
 association deemed it fitting to request legislative inquiry into the 
 conduct of a judge of the city bench. 1 
 
 The association has continued, however, to take vigilant and active 
 interest in all matters affecting the efficiency and repute of the courts. 
 
 In the universal disgust excited by the revelations of the judiciary 
 impeachment proceedings, a re-action set in against the entire system 
 of elective judges. A constitutional amendment was submitted in 
 1873, providing for a return to the appointive method. This was 
 earnestly favored by the Bar Association, and an able address to the 
 people, signed by William M. Evarts, was issued. The amendment 
 was, however, defeated at the polls ; 2 and as party nominations for 
 judicial offices have since then generally given no ground for com- 
 plaint, the association has accepted the established order of things. 
 No attempt has been made at its instance to reopen the question. 
 
 It has always been one of the leading features of the association's 
 public attitude to exert a practical influence for the nomination and 
 election of none but good and thoroughly qualified men for positions 
 on the bench. In the anti-ring campaign of 1871, the Bar Association, 
 at a numerously attended meeting, appointed a committee to confer 
 with the different political organizations as to the judicial candidates 
 to be nominated, and the same course was pursued in 1872. It came 
 to be understood by the politicians that the Bar Association was 
 thoroughly in earnest on this subject, and that every unworthy 
 judicial candidate would have to encounter its uncompromising oppo- 
 sition. In 1881 the association thus defined its policy in reference to 
 judicial nominations : 
 
 Any active participation in a canvass for judicial offices would be distasteful 
 to us, but it has been necessary in the past, and it may be necessary in the future. 
 If so we shall not shrink from it. We felt justified in taking an active part in the 
 impeachment 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. 
 
 In conformity with this definition of policy, the following provi- 
 sion is made by the by-laws : 
 
 At each annual meeting there shall be appointed by the presiding officer a 
 committee of ten, to be known as the committee on judicial nominations, whose 
 duty it shall be to consider the fitness of candidates nominated or proposed to be 
 
 1 Investigation of charges or complaints against thereon, and they may also report the evidence taken or 
 
 judges has- up to the present time never been under- any part thereof. 11 
 
 taken by the liar Association except in special public 2 The amendment was submitted in the form of two 
 
 emergencies. But by a by-law adopted in December, questions: 1. "Shall the chief judge and associate 
 
 1896, the standing committee on grievances is author- judges of the Court of Appeals and the justices of the 
 
 ized, on [he submission to it of a complaint in writing, Supreme Court be hereafter elected or appointed f " 3. 
 
 to investigate any grievance touching the administration " Shall the judges of the Superior Courts of New York 
 
 of justice. The committee on grievances is to report its City and Brooklyn, of the Court of Common Pleas of 
 
 conclusions to the executive committee, and "if the Buffalo, and the several county judges throughout the 
 
 said committee shall find the complaint, or any material state be hereafter elected or appointed?" The vote 
 
 part of it, to be of such a nature as to require action by stood : for election of higher judges, 319.9T9, against, 
 
 the association, they shall so report to the association, 115,337; for election of lower judges, 319,060, against, 
 
 with their recommendations as to the action to be taken 110,735. 
 
202 HISTOKY OP THE BENCH AND BAR OF NEW YORK 
 
 nominated by political parties or otherwise, for election or appointment to judicial 
 office, and to confer on that subject with other organizations or with nominating 
 conventions, and with power to recommend to the association, at a special meeting 
 or otherwise, such action in respect to candidates as they may deem necessary or 
 proper. 
 
 It is gratifying to note in the published reports of the Bar Asso- 
 ciation that the space set apart for " Annual Report of the Committee 
 on Judicial Nominations" has for very many years contained only 
 the single, word " None." 
 
 But while the association's recent records show entire absence of 
 cause for discontent with New York City judicial nominations, the 
 action taken in a late state judiciary contest forms a conspicuous 
 chapter in its history. The circumstances of the Maynard affair are 
 still fresh in the recollection of the bar and the public ; and it is not 
 needful or desirable to allude to them in detail here. It is, of course, 
 unnecessary to remark that the conduct of Mr. Maynard, as attorney- 
 general of the state, in the matter of the Dutchess county returns — a 
 matter involving extensive party interests — was, until the facts became 
 fully known, a subject of somewhat divided opinion in an association 
 of lawyers having varied party affiliations. When, however, Mr. May- 
 nard was elevated to a vacant judgeship in the Court of Appeals by the 
 governor's appointment, a strong opposition, on grounds of principle, 
 was developed, and a course corresponding to the sentiment thus 
 declared was adopted accordingly. A committee of nine ' was ap- 
 ■ pointed March 8, 1892, to investigate the questions at issue ; and on 
 March 22 the association, adopting the committee's recommendations, 
 requested the senate and assembly " to consider whether the conduct . 
 of Judge Isaac H. Maynard does not demand an exercise of the power 
 to remove judges vested by the Court of Appeals in the legislature." 
 The association later, in the fall campaign of 1893, followed Up this 
 action by taking a prominent part in opposing Judge Maynard's elec- 
 tion to the position in the Court of Appeals for which he had been 
 nominated by his party. 
 
 One of the prime objects of the association's existence, as stated 
 in the constitution, is " to maintain the honor and dignity of the pro- 
 fession of the law." In promotion of this aim, it has, from the begin- 
 ning, been very attentive to all matters concerning the standards of 
 the profession. Special consideration has been given by it at various 
 times to the important subject of the regulations for admissions to the 
 bar ; and although much of the credit for recent improvements in this 
 respect is due to the State Bar Association, the original steps were 
 taken by the New York City association. For example, the essential 
 feature of the present regulations, vesting the whole responsibility for 
 admissions in a State Board of Law Examiners appointed by the Court 
 
 1 Frederic E. Coudert, James C. Carter, John E. son, John L. Cadwalader, William B. Hornblower, 
 Parsons, Clifford A. Hand, Edmund Randolph Robin- EMhu Root, and Albert Stickney. 
 
HISTORY OF THE BENCH AINU .BAR OF NEW YORK 
 
 203 
 
 TO WHOM IT MAT CONCERN. 
 NEW TORE: "NOW YOU SEE WHAT I DID ABOUT IT. GO AND DO LIKEWISE.' 1 
 
 (Tweed cartoon, Harper's Weekly t 1871.) 
 
204 HISTORY OF THE 'BENCH AND BAR OP NEW YORK 
 
 of Appeals, was proposed for adoption as early as 1876 by a committee 
 of this association, of which Lewis L. Delafield was chairman. 
 
 With regard to lawyers guilty of unprofessional behavior, the by- 
 laws are very precise. It is made the duty of one of the standing 
 committees — the committee on grievances — to thoroughly investigate 
 all such cases which shall be brought properly to its notice, and the 
 association undertakes to prosecute in the courts any individual whom 
 the committee duly accuses. For a number of years after its organiza- 
 tion the association confined its proceedings as to unprofessional 
 conduct to its own members ; but now its services may be commanded 
 against any attorney who merits punishment for his professional 
 misdeeds. In like manner it stands ready to afford opportunity for 
 vindication to any member of the bar who has been accused wrong- 
 fully, or unjustly injured in his reputation. There is probably no 
 more characteristic episode in its history than the personal inquiry 
 which it caused to be instituted at the request of Mr. Charles O'Conor. 
 In 1876, one of the leading newspapers of New York published an 
 article reflecting upon Mr. O'Conor's professional honor. The charge, 
 in brief, was that in the celebrated Forrest divorce case he assumed to 
 serve his client, Mrs. Forrest, gratuitously ; that this was the public 
 understanding, in consequence of which he was greeted with much 
 popular acclaim, and at the triumphant conclusion of the case was the 
 recipient of costly presents of silver plate from the ladies of New York 
 and from his professional brethren ; but that, a number of years later, 
 upon collecting for Mrs. Forrest a judgment of $64,000, he paid him- 
 self and his associate counsel exorbitant fees. Mr. O'Conor promptly 
 appeared before the Association of the Bar and demanded an investiga- 
 tion. An inquiry tribunal was chosen, composed of several of the 
 most prominent citizens of New York. The tribunal, after due consid- 
 eration of the charge, pronounced it unfounded and calumnious. 2 
 
 Turning from those aspects of the Bar Association and its career 
 which have to do specially with its relations to the immediate interests 
 of the bench and the bar, we find that it has been constantly active and 
 influential in general public concerns. The limits of this article do not 
 admit of a detailed account of its miscellaneous activities. It will be 
 sufficient to glance briefly at two or three of the more conspicuous and 
 interesting of these undertakings. 
 
 Of the standing committees of the association the most important 
 is that on the amendment of the law, which is charged with the duty 
 
 1 The report of the tribunal closed with the following might otherwise have taken the more dangerous form 
 
 impreeeive words : of a posthumous aspersion. When his late extreme and 
 
 "In conclusion, the undersigned are of opinion that apparently hopeless illness is considered, his recovery, 
 
 there is no foundation for any of the charges against even to those who are indisposed to regard the events of 
 
 Mr. O'Conor. Unjust accusations are always to be this life as influenced by any other than natural agencies, 
 
 deplored ; for even though they are shown to be so, they will seem almost like a recall from the confines of an- 
 
 are a source of trouble and annoyance to those against other world to maintain the most precious of his posses- 
 
 whom they are brought. In his case it is well that they sions — a spotless name." 
 have been made and refuted in his lifetime, for they 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 205 
 
 of "watching all proposed changes in the law and of proposing such 
 amendments as in its opinion should be recommended by this associa- 
 tion." The committee on the amendment of the law is really, so far 
 as it is proper or possible for a strictly unofficial body to be such, a 
 recognized factor in the legislation of the state. It receives a copy of 
 every bill introduced in the senate and assembly, and follows the entire 
 course of legislation. Moreover, it at times takes the initiative in 
 framing and urging measures deemed desirable ; and to this end it is 
 provided in the by-laws that members may at any time submit to the 
 committee " suggestions of ex- 
 isting defects in the law, and 
 of any amendment which they 
 may think desirable." 
 
 The prolonged and deter- 
 mined campaign waged by 
 the Association of the Bar, at 
 the instance of its committee 
 on the amendment of the law, 
 against the "proposed civil 
 code," is a striking illustra- 
 tion of its activity and influ- 
 ence in legislative matters. 
 
 The constitution of 1846 
 contained a mandatory pro- 
 vision that three commission- 
 ers be appointed "to reduce 
 into a written and systematic 
 code" so much as to them 
 should seem " practicable and 
 expedient " of " the whole 
 body of the law of this state," 
 and "make reports of their 
 proceedings to the legislature 
 when called on to do so " ; in pursuance of which provision three 
 separate commissions were constituted (1849, 1850, and 1857), and in 
 1865 a proposed civil code was submitted to the legislature in the 
 form of an act composed of 2,034 sections. It was designed that the 
 civil code should be one of " Five Codes," the others being the political 
 code, the penal code, the code of civil procedure, and the code of crim- 
 inal procedure. It was not, however, until 1879 that the civil code was 
 acted on by the legislature ; it was then "adopted by both houses, but 
 was vetoed by Governor Eobinson. 
 
 The Association of the Bar, in view of the great and far-reaching 
 importance of the subject, appointed a special committee ' to make a 
 comprehensive examination of the code and report as to the expediency 
 of its enactment. March 15, 1881, the committee reported that, in the 
 
 NEW YORK CUSTOM HOUSE. 
 
206 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 opinion of each of its members, "the passage of this statute would 
 be an unmixed evil, fraught with incalculable mischief to every person 
 directly interested in the administration of the law throughout the 
 state ; " that the code was not, as its authors claimed, " a code of the 
 common law " of the state — not " an affirmance of what the common 
 law now is," containing no " provisions in derogation of that law," but 
 reached far beyond any such modest scheme and " mingled common 
 law, statutory law, and new law in one common mass, with no designa- 
 tion to guide those who seek to ascertain the proportions of the 
 several ingredients." 
 
 This uncompromising attitude of the association was persevered 
 in throughout the notable struggle that followed — although some of 
 its members dissented from the position taken and earnestly favored 
 the code. At first the legislature seemed to be almost unanimous in 
 approval of the scheme. In 1881 the act passed the assembly by a 
 vote of 83 to 3, but the senate, influenced by the strong opposition of 
 the Bar Association, took no action. In 1882, however, the senate also 
 approved the measure, the vote standing 20 to 11. The Bar Associa- 
 tion's committee thereupon went before the governor, with the result 
 that a veto was again interposed. In each succeeding year, for five 
 years, the fight was continued, the supporters of the code in the legis- 
 lature gradually becoming weaker, until in 1888 they practically aban- 
 doned the contest. 
 
 The Bar Association, while opposed to the civil code, endorsed the 
 penal code. After the enactment of that statute in 1881, a committee 
 of the association, of which Frederic R. Coudert was chairman, made 
 a careful examination of it, and reported against any attempt for its 
 repeal. On the other hand, the bill to establish a code of evidence 
 was pronounced unwise and undesirable, Mr. James C. Carter being 
 chairman of the association's special committee on that subject. 
 
 To the efforts of the Association of the Bar the legal profession 
 and the public are mainly indebted for the valuable reforms that have 
 lately been introduced in the system of land transfers. 
 
 The association also is entitled to the credit of inaugurating the 
 movement for very much needed reforms in the city offices of New 
 York. In 1872 a committee on extortions was appointed to inquire 
 into illegal exactions in the public offices of the city — especially the 
 offices of the sheriff, county clerk, register, surrogate, and clerks of the 
 various courts. A systematic investigation was prosecuted, which re- 
 sulted in astounding revelations. It was shown, for instance, that the 
 sheriff's office was so administered as to yield a revenue for its chief 
 of $100,000 to $150,000 a year, and that the register realized fully 
 $40,000 annually from overcharges for recording instruments, and 
 $20,000 to $30,000 from illegal fees for searches. The committee, 
 
 1 Clifford A. Hand, Frederic K. Coudert, Elial F. Hall, Charles C. Beaman, Jr., David McClure, and William B, 
 Hornblower. 
 
HISTORY OF THK BENCH AND BAR OF NEW YORK 
 
 207 
 
 1 
 
208 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 in its recommendations, went to the root of these abuses, advising that 
 all the officers concerned be paid fixed salaries, that the fees be 
 abolished or reduced so far as practicable, and that all fees still re- 
 tained be paid into the city treasury. In 1874 a committee of the 
 association ' appeared at Albany in advocacy of the suggested reforms, 
 and Mr. Lewis L. Delafield made a very able argument setting forth 
 their urgent necessity. In 1877 and 1878 the work was resumed with 
 vigor. The association laid before the governor formal charges of 
 " neglect of duty in office, malversation in office, malfeasance in office 
 and extortion," against the sheriff, county clerk, and register. 2 Gover- 
 nor Robinson, after due investigation, removed County Clerk Gumble- 
 ton from office, but decided that the facts did not justify the removal 
 of the register and sheriff. 3 
 
 The changed order of things in the city offices of New York is, 
 therefore, the direct outcome of the agitation begun by the Bar 
 Association and determinedly prosecuted by it for years. 
 
 The association, as the representative organization of the New 
 York bar, has in every respect amply realized the best hopes of its 
 founders. In the foregoing review of its public record only the most 
 important of its proceedings have been noticed, and there is no oc- 
 casion, in an article intended merely to sketch its distinctive history 
 and character, to enlarge further upon this abpect. The essential 
 thing to be observed is that the association has proved itself at all 
 times to be a living and vigorous force, promptly and earnestly in- 
 teresting itself in leading issues and questions as they arise. There 
 have consequently at different periods been divisions in its councils — 
 some of them rather fundamental and delicate. But experience in 
 this regard has not at all operated toward a modification of the 
 original active spirit, and the association is likely to continue in the ex- 
 ercise of all the energetic qualities that have hitherto distinguished it. 
 
 The membership of the association at the time of its formation 
 was not much in excess of two hundred. The roll of members now 
 (February, 1897) shows a total of 1,476, including non-resident and 
 honorary members. It owns and occupies one of the finest and 
 costliest buildings in New York devoted to the uses of a private 
 organization. 4 A magnificent library, ranking as one of the very best 
 law libraries in the world, has been collected, now numbering 51,416 
 volumes, of which 36,090 were purchased out of the funds of the 
 association and 15,326 were donated by members and others. The 
 
 1 Wheeler H. Peckham, John McKeon, Clifford A. party, resulting in John Kelly's nomination for gover- 
 
 Iland, and Charles Tracy. nor and Robinson's defeat in his candidacy for re- 
 
 2 The committee representing the association in this election, 
 matter was composed of Artemas H. Holmes, Henry * The Bar Association building, 43 West Forty-fourth 
 
 E. Knox, George De Forest Lord, Charles F. MacLean, Street and 43 West Forty-third Street, was completed In 
 
 and J. Adriance Bush. July, 1896. The total cost of the property was $639,930, 
 
 3 The governor's action in removing the county clerk, of which $203,500 was paid foi the land, $380,700 for 
 
 on the Bar Association's charges, wa6 one of the prin- the building, and $55,7D0 for furniture and hangings, 
 cipal causes of the famous factional convulsion iu his 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 209 
 
 total cost for books and binding from the beginning has been in excess 
 of $160,000. Credit is due to the late James Emott, above all the 
 other members of the association, for the organization of the library 
 and its present splendid character. 
 
 The following is a list of the presidents of the Association of the 
 Bar from the beginning : William M. Evarts, 1870 to 1879 ; Stephen 
 P. Nash, 1880 and 1881 ; Francis K Bangs, 1882 and 1883 ; James C. 
 Carter, 1884 and 1885 ; William Allen Butler, 1886 and 1887 ; Joseph 
 H. Choate, 1888 and 1889 ; Frederic E. Coudert, 1890 and 1891 ; 
 Wheeler H. Peckham, 1892 to 1894 ; Joseph Larocque, 1895 and 1896 ; 
 James C. Carter, 1897. 
 
THE LIBRARY OF THE NEW YORK LAW INSTITUTE. 
 
 |HE early records of the New York Law Institute strengthen 
 the statement of the younger Kent that the establishment 
 of a society law library in the City of New York was owing 
 m in a great degree to the influence and exertion of Chancellor 
 Kent. The project grew out of the necessity of providing the legal 
 profession with an extensive and easily accessible collection of books 
 in every department of law, and such collection was manifestly be- 
 yond the means of individual members of the bar. 
 
 A vivid personal recollection of the disappointments and embar- 
 rassments which he experienced in his own youth in consequence of 
 the lack of library facilities may have influenced Charles O'Conor in 
 old age to make his generous and gracious gift to the Law Institute 
 Library. There are incidents in his career that show his lasting 
 gratitude to those who in early life gave him access to the books of his 
 chosen profession. The only collections of law books of any extent or 
 value in or near the City of New York were private — the library of 
 Chancellor Kent and the Bedford House library of Chief- Justice Jay. 
 A union of effort and means became an urgent necessity in order to 
 provide even the active practitioners of the bar with the working tools 
 of their profession. 
 
 The first regular meeting of the society, of which any written 
 record is extant, was held in pursuance of notice at the American 
 Hotel, at the corner of Broadway and Barclay street, on the fifth day 
 of February, 1828. At this meeting were present Ogden Hoffman, 
 Thomas Addis Emmet, Hugh Maxwell, James W. Gerard, and nearly 
 all the leading members of the bar. Ex-Judge Jonas Piatt was called 
 to the chair, and Charles G. Troup was made secretary. An election 
 being held, James Kent was chosen president and Smith Thompson, 
 Peter A. Jay and Beverly Robinson, vice-presidents of the association. 
 Previously to this meeting, however, on the 19th day of January, 1828, 
 the constitution as drafted by Chancellor Kent had been submitted at 
 a conference held at the residence of William T. McCoun, and it was 
 subscribed by Chancellor Kent, Hugh Maxwell, William T. McCoun, 
 John Duer, James W. Gerard, Daniel Lord, George Sullivan, David 
 Ogden and the others present — nineteen in all. 
 
 In the beginning the Law Institute was meant, says Mr. Gerard, 
 " to be very much of the character of the present Bar Association— not 
 merely a library but an association which should, by salutary rules, 
 guard the purity of the profession and hold a check upon the members 
 
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212 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 through investigation and the power of expulsion." It was, however, 
 found impossible to carry out such views, and they were abandoned 
 and all the energies of the members were turned toward establishing a 
 law library which would contain, as it were, the law of the larger part of 
 the civilized world. In March, 1828, the library of Eobert Tillotson 
 was purchased on such liberal and satisfactory terms that by resolu- 
 tion the free use of the library was voted to Mr. Tillotson. In his 
 visits to the city he was to be granted its privileges in the same 
 manner as if he were a regularly elected member. 
 
 Chancellor Kent donated a set of his Commentaries on American 
 Law, and Mr. David S. Jones a copy of Statham's Abridgment, a book 
 as old as the early Caxtons and published before Columbus sailed from 
 Palos, and which for many years kept the reputation of having been 
 the first printed book on English law. 
 
 Many of the old classics of the law, rare and valuable reports and 
 commentaries, were the gifts of the accomplished scholar, Peter A. Jay, 
 president of the Historical Society, and the eldest son of Chief-Justice 
 Jay. In the future, upon the Law Institute's tablet of grateful recog- 
 nition of the friends and lovers of its library, no names will be 
 engraven deeper or more conspicuously than those of Peter A. Jay and 
 Charles O'Conor. The latter is the ever-recurring benefactor, and we 
 run across Jay's name as donor in the books and treasures of the Law 
 Institute library frequently, and with the same pleasurable surprise 
 and interest as we enjoy when we note Brockholst Livingston's name 
 as associate counsel in the great law cases and criminal trials of 
 Alexander Hamilton, Aaron Burr, Richard Harison and Egbert Benson. 
 
 In the early part of the year 1830, it was resolved to petition the 
 legislature of the state for an act of incorporation, and accordingly on 
 the 22d day of February, 1830, the Law Institute was duly incorporated 
 by chapter 48 of the laws of 1830. The charter and by-laws enacted 
 in accordance therewith were accepted and adopted at a meeting of the 
 Institute held in the United States court-room on the 12th day of 
 May, 1830. Many of the old historical records of the New York Law 
 Institute have fortunately escaped the devastation and vicissitudes of 
 fire and time, and attached to the charter and by-laws of 1 830 are pre- 
 served the signatures of the most noted men of the New York bar : 
 James Kent, Thomas Addis Emmet, Hugh Maxwell, John Anthon, 
 George Griffin, David Graham, Samuel Jones, Caleb S. Riggs, Daniel 
 Lord, James W. Gerard, William Kent, J. Prescott Hall, Ogden Hoff- 
 man, William M. Price, David Dudley Field, Francis B. Cutting, 
 Charles O'Conor, Samuel J. Tilden, John Jay, William Curtis Noyes, 
 Theodore Sedgwick, John Graham, Richard O'Gorman, John K. Porter, 
 Henry L. Clinton, James T. Brady, William M. Evarts, Joseph H. 
 Choate, Stephen P. Nash, Charles F. Southmayd, Henry D. Sedgwick, 
 Ashbel Green, Robert S. Green, George Bliss, John E. Parsons, Ed- 
 wards Pierrepont, A. Qakey Hall, John McKeon, Henry Hilton, 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 213 
 
 Wheeler H. Peckham, Everett P. Wheeler, John E. Burrill, Frederic R. 
 Coudert, William Allen Butler, William A. Beach, Samuel Blatchford, 
 Clarence A. Seward, James C. Carter, Elihu Root, George Hoadly, 
 John P. Dillon, Charles Tracy, Aaron J. Vanderpoel, John T. Hoff- 
 man, Edwin W. Stoughton, Frederic W. Hinrichs, John R. Dos Passos, 
 Delos McCurdy, Burton E". Harrison, Albert Stickney, John J. McCook, 
 Francis L. Stetson, Austen Gr. Fox, William C. Whitney, and many 
 others equally famous, living and dead. 
 
 In the Report on the Libraries of the United States, published at 
 Washington in 1876 by the government, is the following reference to 
 the collections of the New York Law Institute as they were in the 
 centennial year : 
 
 The Law Institute Library has become a success in the highest and broadest 
 sense, and now furnishes the bench and bar of the city in legal treatises, text-books, 
 American and foreign reports, collections of leading cases and trials, resources of 
 incalculable value. The library, now the best public law library in this country,! 
 
 CASTLE GARDEN, 1850. 
 
 contains over 20,000 volumes, complete sets of reports of courts of all the states, 
 the federal courts, the latest revisions of the statutes, complete reports of English, 
 Scotch, Irish, and Canadian courts, one of the best collections of the session laws 
 of all the states, nearly all of the collections of trials, one of the largest collections 
 of English and American law periodicals, next to the library at Washington one 
 of the best collections of French law in the country. It has also a very fine collec- 
 tion on the literature of the law, memoirs and biographies. 
 
 To this may also be added as of interest an extract from a recent 
 press notice : 
 
 There is probably no other law library in this country which has upon its 
 shelves so rich and valuable a collection of rare works on legal topics. It possesses 
 very full collections of reports of cases in the American, English, Scotch, Irish, and 
 Canadian courts, sets of American and English statute laws, the publications of the 
 English Record Commission, the English House of Lords and House of Commons 
 journals, and session papers going back to 1509. The state papers of England and 
 America are a feature of this institution of peculiar value. Of the documents 
 pertaining to American history are the charters of the American colonies, congres- 
 
214 
 
 HISTORY OF THE BENCH AND BAR QV NEW YORK 
 
 sional papers from 1791 and New York state papers since 1691. The English and 
 Irish records, in which this library is peculiarly full and rich, contain complete 
 accounts of the foundation of British and American law. 
 
 Among the rare books and documents of the library which will 
 be found to possess interest and attraction not for the lawyer only, 
 but for the antiquarian as well, are the laws of the ancient Greek 
 states, the property laws and constitution of Athens, the political and 
 legal arguments of the Greek statesmen and orators from Antiphon to 
 Isaeus, and the laws extracted with skill and discernment by Petitus, 
 Prateio, Dareste, and Pardessus from the works of the orators, his- 
 torians and philosophers of Greece ; the entire body of the Roman 
 law, the ante-Justinian statutes and jurisprudence, the Justinian books 
 and the Romano-Barbarian codes ; the Leges Barbarorum or laws of the 
 Lombards, Franks, Goths, Vandals, Alemanni and other German tribes; 
 
 VIEW OF THE NARROWS. 
 
 elegant editions of Hessels and Kern's " Lex Salica," and Le Gruchy's 
 "L'Ancienne Coutume de Normandie," the Corpus Juris Canonici 
 and the ancient constitutions and canons of the church ; the Sea Laws 
 of Oleron, Wisby and the Hanse towns ; the restored text of " The 
 Black Book of the Admiralty," a venerable book of great authority in 
 the Admiralty Court, and which disappeared from the Admiralty 
 Register in London during the latter part of last century " ; " Guidon 
 de la Mer" Maritime Chapters and Ordinances of Amalphi ; the sup- 
 posed Rhodian laws; "11 Consolato del Mare,'" of which an edition 
 was published at Barcelona in 1494, and which is the earliest general 
 code of maritime law in modern Europe and, embracing as it does the 
 legislation of many kingdoms, is a valuable monument of the learning 
 of the middle ages ; repositories of ancient laws and jurisprudence 
 like the " Corpus Juris Germanicce," " Codigos Antiguosde Espafla," 
 the code of Godfrey de Bouillon, the first Christian King of Jerusalem, 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 215 
 
 "Assises et bon Usages de Royaume de Jerusalem" originally in- 
 tituled " Lettres de Sepzdcre," because they were deposited with much 
 ceremony in a great chest in the Church of the Holy Sepulchre ; per- 
 haps the best of the feudal collections, and certainly interesting as a 
 code of laws framed by a body composed of all the nations of Europe, 
 of a legislative assembly of gallant knights like Sir Philip Sidney — 
 the flower of the chivalry of the world ; the Ottoman codes and the 
 Koran, commonly called the " Alcoran of Mahomet," in French, Ger- 
 man, English and the original ; the Ordinances of Menu, translated 
 from the Sanscrit by that elegant scholar, Sir William Jones, "perhaps 
 the only lawyer equally conversant with the year-books of West- 
 minster, the Attic pleadings of Isseus and the sentences of Arabian 
 
 EAST RIVER AND NEW TORK BAT FROM THE BRIDGE. 
 
 and Persian cadis"; Sir George Staunton's translation of the code 
 comprising the ancient and modern jurisprudence of China ; the laws 
 of the Anglo-Saxon kings of England ; the laws and the Domesday 
 Book of William the Conqueror; the " Monumenta Ecclesiastica 
 Anglicana," and the ancient law records preserved in the tower of 
 London ; the Senchus Mor or Brehon code of Ireland ; the ancient 
 Brehon law tracts ; the statutes of the Irish Parliament from 1310 to the 
 close, made famous by the orations of Grattan and the Irish patriots, 
 and containing among many other curious things the law of 1447, en- 
 titled " An Act that the King's Officers may travel by Sea from one place 
 to another within the Land of Ireland"; the Acts of the parliaments 
 of Scotland, 1124-1707 ; Laws of the Scottish Borders and the ancient 
 laws and customs of the burghs of Scotland ; the ancient laws and 
 institutes of Wales, containing the three ancient codes and the law of 
 the Kindred and Blood Feud; the Code Judiciare of the French 
 Revolution, published in the year VII. of the Republic ; the Ordinances 
 and Statutes of Oliver Cromwell ; " Codice di Napoleone il Grande 
 
216 HISTORY OF THE BENCH AND BAK OE NEW TOEK 
 
 pel Regno d' Italia" printed in Milan in 1806 ; the Laws of Virginia 
 of the time of the Bacon Rebellion ; the Yazoo Fraud Act of Georgia, 
 giving rise to opinions by the most eminent lawyers of the day, 
 Robert Goodloe Harper, Alexander Hamilton, Chief-Justice Marshall ; 
 the " Scarlet Letter Act " of Massachusetts ; the " Aaron Burr Act " of 
 Ohio, and the Laws of the " Chamberlain Legislature " of South Caro- 
 lina ; the Purple Book of Bruges ; the laws inscribed upon the wax 
 tablets of Pompeii and the Bronze Table of Aljustral ; the newly- 
 discovered law code of the Cretan Gortyna, reminding us forcibly of 
 the query of the Athenian to the Cretan in Plato's Laws, " Tell me, 
 stranger, is God or a man supposed to be author of your laws?"; the 
 pleadings of the jurist Farinacci in behalf of the beautiful Roman girl 
 Beatrice Cenci, in whose dry law details we may forget Shelley and 
 Guerazzi, but not so easily the sad pathetic face of " the Fair Par- 
 ricide" that speaks out from the canvas of Guido Reni ; the process 
 against the rare heroine Joan of Arc, whose childhood home still stands 
 unchanged in the village of Doremy ; the pleadings of the chivalrous 
 advocate Chaveau de la Garde, who defended Marie Antoinette, 
 Madame Roland and Charlotte Corday, sometimes called the "Jeanne 
 d'Arc de la Revolution," who rewarded him for his generous and deli- 
 cate defence by permitting him as a mark of esteem to pay her prison 
 debts ; the trial of Mary Queen of Scots at Frotheringay Castle, and 
 of that monarch whose example the Southern Commissioners at 
 Hampton Roads, quoting history, urged Lincoln to follow, whereupon 
 Lincoln, as Jefferson Davis relates, naively replied, "he knew not 
 much history but he did know that Charles I. lost his head"; the 
 ancient Form book or " Image of Instruments," from which was 
 drafted the prelude to Shakespeare's will and his profession of faith 
 (though we do not know if the copy of Shakespeare's solicitor was 
 borrowed from one of the seven lawyers at Stratford or brought with 
 him from his home in Warwick, the castle town in heart of England's 
 romance and history, from whence came Anne, daughter of " the king- 
 maker," so quaintly wooed and won by Richard III., and within whose 
 cloistered chambers of Leicester the cold, chaste, white-souled O'Conor 
 placed his sentimental gift to the memory of Amy Robsart); cases in the 
 Star Chamber, a court of which Lord Somers remarked that whatever 
 its evils, it punished many offenders too big for ordinary justice— 
 " We must not sitt heare to punish poore snakes and lett others goe 
 scot free," is the language of one of its judges ; the report of the trial 
 of the " wicked Lord Byron " in the House of Lords for the killing 
 of Mr. Chaworth, a tragedy which we read and recall the romance 
 of the Sherwood Forest, the Harrow-school boy visitor, the pleasure 
 garden, the antique oratory, the diadem of trees, the " Dream " and 
 the pensive silver-winding stream, near which she sleeps in quiet 
 and peace — whom in love-lit phrase the boy-poet often called his 
 "bright morning star of Annesley"; the eighteenth century Wil- 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 217 
 
 liamsburg Folios, which 
 carry us back as by a 
 painting of Wordsworth 
 Thompson to colonial 
 days in the Old -Domin- 
 ion, even to the spot where 
 Washington made his 
 first venture into author- 
 ship, to the site of the his- 
 toric tavern wherein in 
 1776 the first college 
 Greek-letter society was 
 born, and close by, within 
 sound of the Yorktown 
 guns, to the old state house 
 in which the boy Jefferson 
 stood, listening, pale and 
 anxious, while his friend 
 Patrick Henry seemed to 
 speak " as Homer wrote," 
 and to the famous path 
 and street with which we 
 are all familiar — once 
 thronged with soldiers 
 and statesmen from Brad 
 dock, Lafayette and Ham- 
 ilton to Winfield Scott, 
 and from Madison, Mon- 
 roe, Eandolph and Mar- 
 shall to Crittenden, Wirt, 
 Calhoun and Clay, and 
 leading — just as if to 
 typify and guide its stu- 
 dents' lives — from college 
 grove to capitol ; the an- 
 cient law of Holland and 
 the Modern Dutch codes, 
 with the commentaries 
 made classic by the genius 
 of Grotius or the learning 
 of modern writers ; the 
 laws and ordinances of 
 New Netherland, 1638- 
 1674 ; the Duke of York's 
 laws enacted at Hemp- 
 stead, Long Island, in 
 
218 HISTORY OF THE BENCH AND BAH OF NEW YORK 
 
 1664 ; the old and rare corporation ordinances of the City of New 
 York ; the documentary history of the colony and state ; the New 
 York City Directories, reaching back almost to the beginning in 
 1786, and the perfect sets of New York and Brooklyn Corporation 
 Manuals ; the Law Register of Alexander Hamilton, from 1795 to 
 his retainer in a case by the Trinity Church Corporation a few 
 weeks before the fatal July day of 1804 ; the Quaker Girl, or "Man- 
 hattan Well " murder case of Burr and Hamilton that gave episode 
 and interest to Fay's "Norman Leslie"; the test case of Hamilton's 
 under the Trespass Act against Tories ; the Washington copy of the 
 Code de Louis XIII.; the Plantation Laws of Virginia, with auto- 
 graph of Richard Henry Lee, who moved the Declaration of American 
 Independence ; The Note-Book of Chancellor Hardwicke ; Lord Chief- 
 Justice Holt's copy of the Eyre MSS. Reports ; and many volumes, with 
 autographs, annotations and interesting associations of famous law- 
 yers and jurists and others, the gifts of members, the Kents, father 
 and son, Jay, Evarts, O'Conor, Field, Brady, Bliss, the Abbotts, etc. 
 
 The library at the present time ranks as one of the three leading 
 libraries in the world in American and British law literature. Its 
 growth since its organization is indicated by the following figures, 
 showing the number of its volumes in the stated years in which esti- 
 mates have been made : 
 
 1828 Library organized. 1869 13,500 
 
 1843 2.413 1876 20,270 
 
 1851 . .4,544 1880 24,391 
 
 1855 6,000 1885 29,560 
 
 1860 8,550 1897 48,257 
 
 By an arrangement with the city authorities the library from the 
 first was provided with accommodations in what was known as the 
 " Old City Hall," and when larger space was required rooms were pro- 
 vided in the " New City Hall " on Chambers street, in which it remained 
 until that building was destroyed by fire on the 19th day of January, 
 1854. By this fire, one of its periodical visitations, the library lost 
 eighty-one volumes and had many others seriously injured. Most of 
 the furniture and the adornments of the rooms were also injured or 
 lost. A committee of the library, consisting of Charles O'Conor and 
 William Curtis Noyes, adjusted the loss with the insurance companies 
 at $2,250, retaining the books and property injured, and this sum was 
 accepted in compromise and promptly paid. For some time after 
 this fire the library had a shiftless existence, and very often, in its 
 impecunious condition, when its inability to pay rent or other debts 
 was made a matter of record, Charles O'Conor came to its aid with 
 loans of large sums of money. In its hour of trial and tribulation the 
 library was also generously remembered in large donations of books 
 by James R. Whiting, Joseph Blunt, Charles Edwards, Theodore 
 Sedgwick, and the secretaries of state of the several American states. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 219 
 
 James T. Brady proved an active friend, and with Charles Tracy made 
 repeated and urgent appeals to the board of supervisors to carry out 
 the fundamental agreement and understanding that was entered into 
 with the corporation at the organization of the society to provide it 
 with suitable rooms for its use ; or, at least, to make good the losses 
 that had resulted to the association from the violation of this compact. 
 For a time the library was closed and its books stored, and then they 
 were placed in the basement of the court-house, in quarters so small 
 that only a part of the books could be shelved, so that the utility of 
 the library was much diminished, and the membership in consequence 
 fell off. 
 
 In April, 1855, a room was secured on the second floor of No. 45 
 Chambers street, fronting the park, and in the spring of 1859 the 
 
 ""»" «ii«miuiiiiiiini«i!iniiu inniii » iiimiiiwiiiiiiiiiiiiiiiiiiin iiiraiBiiiniiiiiiiimiiiniiiiiiii nninrHiiiiimraiiiiiiiiiimv;iinniiVuiRi»iiiiiiiiHiiiwiiin7iiiiiiiiHiitiiiiiiiiiiHili>iiiiiiui 
 
 LENOX LIBRARY. 
 
 library, by an arrangement with the United States government, was 
 removed to the building in the rear of the United States courts at ~No. 
 41 Chambers street. At this time the cost of the books and furniture, 
 as appears by the Brady memorial, had amounted to about $50,000. 
 In its quarters in the old Burton Theatre building Mr. David E. 
 Wheeler made a bequest of $1,000 to the library, and Mr. Hugh Max- 
 well presented it with a costly silver vase and the excellent portraits of 
 Thomas Addis Emmet and Chancellor Kent. The marble bust of its 
 late president, James T. Brady, was presented to the institute shortly 
 after his death in 1869. 
 
 Its early and late benefactor, Charles O'Conor, noted for his char- 
 acteristic, fervent and proud love of the city of his birth, in 1884, by a 
 generous bequest in his last will and testament, executed on the 
 eightieth anniversary of his birthday, gave to the library $21,000 in 
 cash, all his bound volumes, 'entitled "My Own Cases" and "My 
 
220 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 Opinions," with the silver plate and vase that had been presented to 
 him by the ladies and lawyers of the City of New York. 
 
 In May, 1893, David Dudley Field, its oldest living member, pre- 
 sented to the library his private copy of a large photograph of the 
 scene when he proposed an International Code in 1866 before the 
 British Association for the Promotion of Social Science ; also an en- 
 graved portrait of himself and a valuable collection of books, including 
 complete sets of the annuals and reports of proceedings of interna- 
 tional law societies, draft codes of different countries, his own 
 speeches, arguments, and many miscellaneous papers. In February, 
 1897, Mr. James R Cuming authorized Mr. Winters as librarian to 
 present to the New York Law Institute in his behalf a marble bust of 
 Francis 3. Cutting. It is a beautiful work of art and a faithful like- 
 ness of the eminent lawyer. Mr. Cutting was early enrolled a member 
 of the library. He is remembered as an intimate friend of the great 
 leaders of the bar in other days, and as being himself a well-known 
 figure in the profession. 
 
 In July, 1875, upon the completion of the new post office building 
 in the City Hall Park, the library was assigned spacious rooms on the 
 fourth floor of that building, and from its removal to the new quarters 
 it entered upon an era of progress and prosperity. It was then under 
 the presidency of Charles O'Conor, whose predecessors in office had 
 been James T. Brady, the peerless orator ; John Anthon, the great 
 nisi prius advocate, "who began his career amidst a race of giants" ; 
 Samuel Jones, who was classed by Mr. O'Conor with John Wells, " the 
 prince of bar orators," and Chancellor Kent of world-wide fame. 
 Aaron J. Vanderpoel, a keen lover of good books, a kindly, con- 
 siderate official, a public-spirited citizen, one of the best equipped 
 lawyers of the New York City bar and its most popular member, held 
 the position of honorary librarian. 
 
 Under the combined influence, intelligent interest and active labors 
 of these two men, the library of course made energetic and rapid strides 
 in usefulness and prosperity, and became favorably known to the pro- 
 fession and to the press and the public as well. Its broken sets were 
 completed, and there was secured an approximately and reasonably 
 complete collection of books in every department of jurisprudence. 
 
 In 1888 changes were made in the library rooms under the super- 
 vision of the government superintendent of construction, Mr. William 
 J. Fryer, and by a judicious arrangement of galleries and alcoves the 
 shelving capacity of the library was almost doubled. The new classi- 
 fication and re-arrangement of the books have continued to the present 
 time. 
 
 On the main entrance floor are kept the law reports, law joxirnals 
 and reports, digests of the United States, the different American states, 
 England, Ireland, Scotland and the Canadian provinces. In the 
 gallery are located the American and English commentaries, the die- 
 
HISTORY OF THE BENCH AND BAR OF NEW YOKE 221 
 
 tionaries, cyclopaedias and books of reference, historical and biographi- 
 cal works, Roman law, trials, the statute law, revisions, codes, digests, 
 session laws and indices to statutes of all English-speaking countries ; 
 the codes, commentaries and selected law periodicals of Germany, 
 France, Austria, Spain, Italy, Holland, Belgium, Switzerland, Turkey, 
 Mexico, etc., etc. ; and on the uppermost floor the Court of Appeals 
 cases, reports of parliamentary and congressional debates, constitu- 
 tional convention journals and debates, American and foreign state 
 papers, United States and New York legislative documents and 
 journals, New York City legislative documents and department re- 
 ports, corporation manuals, books of statistics, atlases and maps, city 
 directories, miscellaneous journals, association reports, House of Lords 
 and House of Commons journals, and the Charles O'Conor and other 
 valuable donations. 
 
 Within the limit of this article it is impossible to speak at length 
 or in detail of the particular treasures of the library's collections or of 
 the many volumes with interesting and curious histories and by both 
 contents and bibliographical value worthy of especial and extended 
 notice. The library, however, is not rich in the treasures, fancies, or 
 queer conceits of prosperous book-collectors. A law librarian is apt 
 to value a London imprint of Grotius as much as an Elzevir, and he 
 hardly takes notice if his huge folios are by Machlinia, Pynson, 
 Wynkin de Worde or Baskett. The library possesses no editions de 
 luxe and but few first editions, editiones principes collected as such. 
 Its incunabla came by gift or purchase because of the books' contents 
 and practical utility, and not by reason of the mere date of the imprint 
 or the signatures of famous printers. 
 
 Its bindings, especially in the department of foreign law, are 
 noticeable and elegant, but not such as would have justified the 
 sumptuous taste or superb skill of Padeloup, Derome, Le Gascon, a 
 Grolier or the lovely designs of Clovis Eve, and yet if this magnificent 
 library should be destroyed by fire, from whose dreaded visitations it 
 has made so many narrow escapes, it would be perhaps safe to assert 
 that it would be as impossible to replace it in its integrity as to restore 
 to the book-shelves at Mount Vernon the scattered volumes of Wash- 
 ington's library ; or to the apartments of " The Albanv " the books, 
 letters and manuscripts of Lord Byron ; or to secure the " Corambis " 
 copy of " Hamlet " ; or a half dofcen copies of Shakespeare's books and 
 letters ; or the manuscript plays that were burnt with the Globe 
 Theatre ; or a few Valdarfer's Boccaccio, Venice, 1471, the rarest book 
 in the world ; or the Naples, 1474, edition of Horace, the rarest of the 
 classics ; or the Mentz Cicero of 1465, the first classic put into print ; 
 or Cliamaco's book, the first printed in the new world ; or the original 
 edition of the book printed at Saint Die in 1507, first suggesting the 
 name " America " for the newly-discovered western continent ; or to 
 find in modern book-marts smaller books than the "Thumb Bible" or 
 
222 HISTORY OF THE BENCH AND BAB OE NEW YORK 
 
 larger than the giant volumes of the Escurial, or cheaper than the 
 bound "Penny Testament," or more curious than the El egy printed 
 on black paper with white letters ; or a perfect copy of the first Aldme 
 Virgil ; or the lost Constitutions of Aristotle ; or the silent first issue 
 of "Pilgrim's Progress"; or the "Morton's Hope" chronicle of 
 Motley's and Bismarck's student life at Gottingen ; or the borrowed 
 copies of Coke and Blackstone, with which Webster and Lincoln 
 began in youth the study of law. 1 
 
 A5TOR LIBRARY. 
 
 The work of the recent decade of years and of the new epoch of 
 the library's progress and development may be fitly epitomized and 
 illustrated in the statement that the Law Institute Library has been 
 either the pioneer or of the pioneers : 
 
 1. In securing complete sets of American, English, Irish, Scottish, 
 Canadian, and Australian law reports. 
 
 2. In attempting to collect the law journals of the United States, 
 England, Canada, Ireland, Scotland, British colonies, France, Germany, 
 Austria, Spain, Italy, Holland, Belgium, Switzerland, etc. 
 
 3. In attempting to collect complete sets of the revisions, codes 
 and session laws of each state and territory of the Union, so as to pre- 
 serve on the shelves of the Law Institute an almost unique and price- 
 less historical memorial of American state and statute literature. 
 
 4. In making the attempt to collect official copies of the foreign 
 codes, civil, commercial, criminal, procedure and the standard con- 
 
 i Since this was written there has come into the possession ot the writer Lincoln's first law book, one of the 
 very earliest relics of hie boyhood days. 
 
HISTORY OF THE BENCH AND BAB OF NEW YORK 
 
 22B 
 
 tinental law authors and commentators, illustrated in French literature 
 by the writings of Pardessus, Pothier, Valin, Cleirac, Montesquieu, 
 Vattel, Cujas, D'Aguesseau, Domat, Orfila, Boulay-Paty, Glasson, 
 Hautefeuille, Laurent, Merlin, Locre, Pouillet, Toullier, Calvo, Pradier- 
 Fodere, Cauchy, Couder, Rolin-Jaequemyns, Demolombe, Bedarride, 
 Cresp, Ortolan, Riviere, Desjardins, Valroger— and in German litera- 
 ture by the writings of Savigny, Thibaut, Mittermaier, Feuerbach, 
 Grimm, Hugo, Koch, Kant, Bulmerincq, Hoist, Puchta, Grotefend, Heff- 
 ter, Windscheid, Gareis, Mohl, Lewis, Vangerow, Borchardt, Martens, 
 Dernberg, Sohm, Bar, Bluntschli, Gneist, Holtzendorff, Ihering, and by 
 
 BROADWAY, LOOKING NORTH FROM LEONARD STREET. 
 
 the recent works of the German collaborators, the Series on Com- 
 mercial Law, edited by Endemann ; German Jurisprudence by Bind- 
 ing ; the recent German codes by Bezold ; Forensic Medicine by 
 Maschka ; International Law by Holtzendorff, and Public Law by 
 Marquardsen. 
 
 5. In collecting the English, French and German translations of 
 foreign codes and the miscellaneous writings and association pro- 
 ceedings of the German and French jurists. 
 
 6. In collecting the completed works of the statesmen and orators 
 of all times and countries : Demosthanes, iEschines, Pericles, Isocra- 
 tes, Caesar, Cicero, Hortensius, Stein, Metternich, Bismarck, Grotius, 
 Richelieu, Mazarin, Neckar, Mirabeau, Talleyrand, Guizot, Thiers, 
 
224 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 Cavour, Castelar, Wolsey, More, Bacon, Burleigh, Raleigh, Strafford, 
 Cromwell, Hampden, Temple, Somers, Halifax, Oxford, Bolingbroke, 
 Walpole, Pnlteney, Chatham, Chesterfield, Mansfield, Burke, Grat- 
 tan, Curran, Plunket, Pitt, Fox, Erskine, Sheridan, Windham, Wilber- 
 force, Holland, Mackintosh, Canning, Brougham, Wellington, Grey, 
 Peel, O'Connell, Palmeston, Russell, Bright, Cobden, Beaconsfield, 
 Gladstone, Washington, Franklin, Hamilton, Jefferson, Lee, Henry, 
 Otis, Madison, Monroe, Marshall, Gallatin, Jay, Morris, the Adamses, 
 Ames, Story, Legare, Prentiss, Wirt, Randolph, Webster, Everett, 
 Winthrop, Clay, Calhoun, Seward, Sumner, Lincoln, Phillips, etc., etc, 
 
 7. In collecting the writings and biographical sketches of the great 
 New York lawyers of the past and the present : William M. Evarts, 
 Charles O'Conor, James T. Brady, James W. Gerard, David Dudley 
 Field, Daniel Lord, William Curtis Noyes, Thomas Addis Emmet, 
 Ogden Hoffman, John Wells, James Kent, Brockholst Livingston, 
 Aaron Burr, Alexander Hamilton. 
 
 8. In collecting the rare pamphlets, addresses and law arguments 
 of Rufus Choate, Harrison Gray Otis, Thomas S. Grimke, Robert 
 Goodloe Harper, Henry Wheaton, Nathan Dane, Theophilus Parsons, 
 William C. Preston, John Sergeant, Charles G. Loring, Caleb Cushing, 
 Horace Binney, William Pinkney, Henry Stanbery, Richard H. Dana, 
 Jr., George S." Hillard, Benjamin R. Curtis, and others, whose brilliant 
 reputations are fast becoming traditional because the memorials of 
 their busy, lives have been preserved in no tangible book shape. 
 
 9. In collecting the tracts, pamphlets, essays, magazine articles and 
 newspaper discussions relating to new and important questions of the 
 day, American fisheries, bicycle law, bimetallism, charters and by-laws, 
 civil service reform, club law, codification, commercial trust combina- 
 tions, constitutional law, corporation law, death penalty, electing 
 United States senators, electricity and motor law, foreign immigration, 
 French spoliation claims, Geneva Arbitration award, habeas corpus, 
 hypnotism as a crime, impeachment trials, in come tax, Indian laws, 
 inheritance tax, international arbitration, international law, interstate 
 commerce, irrigation legislation, Jay's treaty, land registration, law 
 reform, law schools, libraries, light railways, liquor laws, Monroe Doc- 
 trine, municipal government, neutrality, New York state and city his- 
 tory, poisons and poisoning trials, presidential elections, rapid transit, 
 referendum, sanitary legislation, social science, South African Republic 
 laws, tariff reform, telephone and telegraph law, theatre law, voting 
 reform, voting trusts, etc., etc. 
 
 The Law Institute Library has been one of the first and one of the 
 most active in every movement to make law libraries comprehensive 
 and useful, and, as far as means and time permitted, practically com- 
 plete. It has made itself an institution worthy of the great metropolis, 
 and by reason of the prestige achieved it is daily visited and used by 
 practical lawyers more than any other library in the world. Its 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 225 
 
 present officers (1897) are : Joseph H. Choate, president ; Edward 
 Patterson and Wheeler H. Peckham, vice-presidents ; William P. 
 Chambers, secretary ; George H. Adams, treasurer ; George C. Holt, 
 Thomas Thacher, Austen G. Fox, James McKeen, Albert Stickney and 
 George G. Frelinghuysen, executive committee, and Clifford A. Hand, 
 James A. McCreery and George G. De Witt, auditing committee. 
 
PERSONAL REMINISCENCES OE SIXTY YEARS AT 
 THE NEW YORK BAR. 1 
 
 F those who sixty years ago were with me at the bar almost 
 all have " gone forth into the great darkness," and the very 
 names of most of them are as unknown to most of you of 
 this generation as though they had never been. Only two or 
 three remain who can remember them. They were men of study, 
 learning, toil ; men of pride, ambition, hope ; men who largely shared 
 the public, attention and respect. Some of them had fame, some had 
 fortune; some had disappointment— all had death. 
 
 At that time there lingered in this city several lawyers whose 
 admission to practice was more than a century ago. Among them 
 were Egbert Benson, Chancellor Kent, Morgan Lewis, Aaron Burr, 
 Josiah Ogden Hoffman, Jacob Morton, Edward Gris wold, Jacob Rad- 
 cliffe, Richard Varick, and Joseph Strong. Of these I think that 
 Chancellor Kent, who died in 1848, survived the longest, and few now 
 present can remember him, while only one or two of us have seen the 
 others whom I have named. 
 
 It was my privilege and happiness to pass my clerkship as a 
 student at law in the office of Chancellor 'Kent, where his son (only 
 less distinguished than the chancellor), William Kent, was associated 
 with him. 
 
 The chancellor retired from the bench on the 31st of July, 1823, on 
 completing his sixtieth year, such being the limit of age, under the 
 constitution of 1821 (then in force), to which any incumbent could 
 hold the office. His judicial labors had, of course, received only scanty 
 compensation ; but after he withdrew from them, though he never 
 appeared at the bar, yet his opinions, which were eagerly sought, not 
 only here, but from every part of the cpuntry, and his services as 
 counsel in important cases, and his great work, The Commentaries, 
 were all more amply rewarded. When he left the bench (and indeed 
 to the end of his life), he was in the fulness of his mental vigor, and 
 strength, and wisdom, and of the goodness and gladness of his guileless 
 heart. His serene cheerfulness and kindness delighted all who had 
 intercourse with him. He was "in wit a man, simplicity a child." 
 His personal qualities secured to him the love, as his learning, wisdom, 
 dignity, and purity did the reverence of all. As remarked by Judge 
 Duer, in his eulogium on the chancellor, " Although his life, from his 
 
 1 From an address by the Honorable Benjamin D. Silliman, at the complimentary dinner tendered to him by 
 the bar of New York and Brooklyn, May 24, 1880, the sixtieth anniversary of his admission to practice. 
 
 236 
 
JL&SfflKS SHWT UklDX 
 
HISTORY OE THE BENCH AND BAR OF NEW YORK 
 
 227 
 
 youth, was emphatically a life of severe and constant labor, exhaust- 
 ing meditation, and resolute self-denial, yet these habits had not the 
 effect of impairing in the slightest degree the cheerfulness, the vivacity, 
 and even the gayety of his temper. When he mixed in society, instead 
 of being gloomy, silent, or reserved, he was uniformly lively, social, 
 affable, communicative." 
 
 I have never known any other man whose reading and study 
 were so " universal " as his. It could not be said of him, as of Lord 
 Brougham, that "he knew a little about everything, and not much 
 about anything," for the chancellor knew all about everything that 
 he had ever studied, and he had studied almost everything. His great 
 miscellaneous library was " a curiosity," not merely in its number of 
 works on nearly every subject, but in the " commentaries " which he 
 
 NEW YORK STAGE COACH, EARLY YEARS OP THE NINETEENTH CENTURY. 
 
 had inscribed in almost every volume, showing not only that he had 
 read it thoroughly, but referring to other works (which he had also 
 read) on the same subject, and often criticising and dissenting from 
 the author, or amplifying or qualifying what he had said. In con- 
 nection with his universal reading was his absolutely phenomenal 
 memory. He literally forgot nothing. A mind so stored, and with 
 its treasures so secured, could not know solitude. It found within 
 itself abundant and choice companionship. On this point I may 
 repeat (what I mentioned on another occasion) that during his last 
 illness he passed many long and silent watches of the night without 
 sleep. When asked whether in those solitary hours he suffered from 
 sadness and depression, he replied that he did not, but that, on the 
 contrary, he then derived great satisfaction in mentally reviewing 
 sometimes some leading rule of law, going back to its origin, to the 
 reasons from which it sprang, and then recalling in their order the 
 
228 HISTORY OF THE BENCH AND BAK OF NEW YOKE 
 
 subsequent cases in England and in this country in which it had been 
 considered, shaped, enlarged, or qualified, down to the final settled 
 rule ; at other times he would select some period of history, perhaps 
 some English reign, and recall its politics, its law, its eminent men, its 
 military acts, and its literature, in connection with the contempo- 
 raneous history and condition of other countries — sometimes a cam- 
 paign, perhaps of Alexander, or Caesar, or Marlborough, or Napoleon, 
 with its plan, its policy, its incidents, and its results. 
 
 But, gentlemen, though I never tire when Chancellor Kent is the 
 theme, I must remember that I may tire you. 
 
 At the remote time of which I have spoken (1829), Judges Hoffman 
 and Jones were on the bench of the Superior Court, and of the other 
 ancient lawyers to whom I have alluded Aaron Burr was the only one 
 then prominent and eminent at the bar, though he can hardly be said 
 to have been at that time engaged in general practice. 
 
 Colonel Burr's personal appearance was remarkable. His black 
 eyes were keen and penetrating. He was small in stature, and slen- 
 der, yet very formal, dignified, reserved, and stately in his bearing. 
 Whether in the court-room, the street, or elsewhere, he seemed iso- 
 lated and alone, 
 
 Among them, but not of them ; in a shroud 
 Of thoughts which were not their thoughts. 
 
 I once called on him with Doctor Hosack, who was the surgeon in 
 the duel between General Hamilton and Colonel Burr, and passed an 
 hour with him at his house in Reade street (in the rear of the Stewart 
 building), and was impressed by the grace and elegance of his man, 
 ners, and the ease and interest of his conversation, which, however, 
 was captious and cynical as regarded men of the Revolution. He said 
 that we had no just idea of their relative merit or importance, or of 
 their action — that he at one time intended to write a history of that 
 period, and to that end had (when in the senate) with his own hand 
 largely transcribed from documents to which he then had access, but 
 that his manuscript, with much other material which he had collected 
 for his work, was lost or destroyed, and that he had no longer suffi- 
 cient interest in the subject to induce him to renew his labor. He 
 added that it was moreover now too late— that the world had adopted 
 the lie as its creed, and that it preferred to believe and would adhere 
 to that lie rather than substitute the truth. 
 
 Colonel Burr died in September, 1836, at the age of eighty— thirty- 
 two years after he killed General Hamilton. 
 
 Sixty years ago the world was away back from where it is now 
 We live in a very different world from that of 1829. Then the vast 
 West was an unexplored wilderness ; the Oregon heard 
 
 no sound save its own dashings ; 
 
 no steamer crossed the sea ; no telegraph annihilated distance ; no 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 229 
 
 submarine cable united continents ; the telephone and photograph 
 were unknown ; no electric light converted night into day ; no rail- 
 road penetrated the wilderness, or brought distant cities and regions 
 into close proximity and prosperous intercourse. 
 
 The country was then poor ; the people were poor ; the compen- 
 sation for labor, whether manual or professional, was meagre ; money 
 was scarce, and it was as difficult (save by statute) to keep down the 
 rate of interest to seven per cent, as it is now to raise it up to four. 
 Ne w York was thriving in a moderate way, but the amount of litiga- 
 tion, the interests involved in it, and the fees 
 for legal services were very small compared 
 with those of the present day of vast popula- 
 tion, of unlimited commerce, of great corpora- 
 
 MUKKAT STREET IN 
 
 tions, of unbounded wealth, and of the new and varied and momen- 
 tous and constantly occurring questions arising from such a changed 
 condition. 
 
 Gentlemen, I do not propose to " fight all the battles o'er again," 
 but, with your leave, will refer to some few of the many changes affect- 
 ing our calling which have occurred since my admission to the bar. 
 
 The judicial and professional force at the earlier period of which 
 I have spoken was widely different from that of to-day. Then there 
 were in this city about 495 lawyers, now there are some 5,575. Then 
 there were in Brooklyn 14 lawyers, now there are some 1,660. Kespect- 
 ing a substantial part of professional business, I may mention that 
 sixty years ago (1829) in the register's office in this city the volumes 
 (or, as we classically term them, libers) of recorded deeds were 242. 
 There are now 2,227. The volumes of recorded mortgages were 132. 
 There are now 2,425. The volumes of recorded deeds in the Brooklyn 
 
230 HISTORY OF THE BENCH AJSD BAR OF NEW YORK 
 
 register's office were then 25. There are now 1,887. The volumes of 
 recorded mortgages were then 18. There are now 2,099. In the 
 surrogate's office in this city there were of recorded wills 64 volumes. 
 There are now 415. In the surrogate's office in Brooklyn (Kings 
 county) there were but 3 volumes of wills. There are now 140. 
 
 As showing the small amount of business at that time in the sur- 
 rogate's office in Kings county, I may mention that the surrogate (the 
 Honorable Jeremiah Lott) held his court on Tuesdays, from 9 to 10 
 a.m., at his dwelling-house in Flatbush, where, in his desk, were con- 
 tained all the records of his office. He had no clerk, but wrote with 
 his own hand all the entries and papers, and the copies of all docu- 
 mentary instruments and proceedings. He at the same time conducted 
 his large rich farms, and also his business as surveyor. His Honor, 
 Judge Abbott, in administering the same office in his marble hall in 
 Brooklyn, with the aid of his experienced and able adjutant, Mr. 
 Voorhees, and of his many skilled and busy clerks, now finds little 
 time for his farm on Shelter Island, and can " survey " only his official 
 field. 
 
 In 1829 the whole judicial force of the state was but a " corporal's 
 guard " compared with that of to-day. The Supreme Court consisted 
 of but three judges, John Savage being the chief -justice, and Jacob 
 Sutherland and William L. Marcy the associate-justices. They held 
 but four general terms annually, viz., at Albany in January and October, 
 in this city in May, and at Utica in July. 
 
 The special terms were held not here but at Albany, on two days 
 in each of seven months during the year. Mr. Field, Judge Gilbert, 
 and Mr. Man, who are here to-night, and who, though still young, 
 were in practice before the days of railroads, have no doubt shivering 
 recollections of our stage-coach and stage-sleigh day-and-night winter 
 journeys thither over the Highlands and through the snow-drifts, 
 and often on the upper part of the river itself, when the ice was thick 
 enough to bear the weight — and with an occasional capsize. The stage 
 drivers were not all members of the temperance society. A route often 
 taken, when the East River was not clogged by ice, was by water to 
 New Haven and thence overland by stage or private conveyance to 
 Albany. 
 
 I have a vivid memory of the arctic coldness on the night of the 
 great fire of December, 1835 (which destroyed most of this city below 
 Wall street), colder, it was said, than had been known in fifty years. 
 My companions in the sleigh, on the following night, on our long 
 return journey from Albany (after our work was done at the special 
 term), were Theodore Eames, an amiable and upright man and good 
 lawyer ; Gabriel Furman, an antiquarian scholar, and afterward a mem- 
 ber of the senate and Court of Errors ; Henry C. Murphy, conspicu- 
 ous as a lawyer, a member of the state senate and of congress, and 
 minister of the United States at the Hague ; the noble Robert Emmet, 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 231 
 
 afterward a judge of the Superior Court ; and William Kent — all 
 long since dead. 
 
 Samuel Stevens, Azor Taber, Marcus T. Reynolds, James Edwards, 
 and others of the Albany brethren, were consignees of motions there, 
 but it was very often' necessary for New York counsel to attend in 
 person, instead of delegating their cases to others. Those motion days 
 were, however, like the general terms, welcome and pleasant, for they 
 brought together leading members of the bar from other counties, 
 and thus friendly acquaintance and cherished relations arose between 
 prominent lawyers from all parts of the state. Delightful memories 
 remain of the rendezvous on those occasions of clever men, of learned 
 men, of wits, and of friends, at the capitol, at Congress Hall, and at 
 Cruttenden's. 
 
 BOWERY THEATRE. 
 
 There were eight circuit judges, one for each of the eight circuits 
 (corresponding with the senate districts) into which the state was 
 divided. This circuit consisted of New York, Eichmond, Kings, 
 Queens, and Suffolk counties. Thus one circuit judge then sufficed 
 for this city and for the other four counties. He also performed the 
 duties of vice-chancellor. That the pressure of business in Kings 
 county was not overwhelming in 1829 may be inferred from the fact 
 that, although Judge Edwards held three circuits there, but two causes 
 were tried during the year. The number tried and disposed of at 
 circuit there last year was 660, and the number on the calendar 1,350. 
 
 At that early day there was some ceremony in opening the Kings 
 county circuit, which was held at Platbush, the court-house and jail 
 being in one building. All in attendance assembled at the tavern — 
 the ancient sign in front of which still bore the ante-revolutionary 
 device of the Lion and the Unicorn lighting for the crown— and, on the 
 
232 
 
 HISTORY OF THE BENCH AND BAB OF NEW YOBK 
 
 tolling of the bell, moved in solemn and grand procession to the court- 
 house, the sheriff with stately pace leading the column, and followed 
 by the judge, at whose side marched the county clerk, then came the 
 bar, then the grand jurors, and then the petit jurors and others. 
 
 Cupidity was certainly not an impulse to ambition for judicial 
 station. The salaries of each of the three justices of the Supreme 
 Court and of the chancellor were $2,000. After serving many years, 
 Chief- Justice Savage found this compensation so inadequate that in 
 1836 he resigned his seat on the bench to be appointed by his asso- 
 ciates as clerk of the court at Utica ; and, for the like reason, Judge 
 Sutherland in 1835 resigned, and was appointed clerk of the same 
 court at Geneva. 
 
 The salary of each of the circuit judges was $1,250. They were 
 also entitled to certain fees for particular services, such (inter alia) as 
 
 for signing a judgment, 12£ 
 cents, and taxing costs, 50 
 cents. My old cost books con- 
 tain the signatures of great 
 and most honored judges' tax- 
 ing bills, including such items 
 for themselves. One shudders 
 at the thought of what would 
 be the fate of an old lawyer, of 
 the earlier dispensation, who 
 should return to practice ana, 
 unaware of the changes that 
 have intervened, should ap- 
 proach one of the honored 
 judges now present, and offer him 12£ cents to sign a judgment ; or a 
 dollar for an order. The amazed attorney would soon be introduced to 
 what he had before known only by reputation, the Tombs, or Ludlow 
 street jail. 
 
 A special bounty of $1.50 was given to the judge of this circuit 
 for each cause noticed for trial in the city of New York, but, in the 
 cautious and rigid words of the statute, " not more than once in any 
 one cause." 
 
 In those days of stinted daily bread for high judicial officers, no 
 objection, so far as I can recollect, was suggested when a judge sought 
 to provide, if not for " his household," for his kindred, by some of the 
 merely ministerial patronage within his gift. Thus Chancellor Kent, 
 than whom the whitest snow was not more pure, appointed his brother, 
 Mr. Moss Kent, as register of the Court of Chancery. Chancellor 
 Walworth made his two brothers, John and Hiram, successively assist- 
 ant register of the same court in this city. Chief- Justice Jones made 
 his relative, Mr. Charles A. Clinton, clerk of the Superior Court. On 
 Mr. Clinton's death or resignation, Judge Oakley's brother was placed 
 
 WASHINGTON HALL, BROADWAY. 
 
HISTORY OF THE BENCH AND BAR OE NEW YORK 233 
 
 in the same office. Judge Nelson, of the Supreme Court of the United 
 States, appointed his son and afterward his son-in-law as clerks of the 
 United States Courts in this city, and Judge Betts, of the United 
 States District Court, appointed successively his brother and his son as 
 clerks of that court. 
 
 I would not advert to these historic facts if they implied a shadow 
 of fault in either of the judges, or in those whom they thus appointed. 
 
 But sixty years ago the judicial force was even then inadequate, 
 and, in 1828, the Superior Court in this city was established. Its high 
 character was fixed at the outset. Three great lawyers, each then at 
 the zenith of his fame, were placed on its bench, Samuel Jones, the 
 very able and deeply learned ex- chancellor ; Josiah Ogden Hoffman, 
 than whom, in his time, there was no higher authority on commercial 
 law ; and Thomas J. Oakley, a great nisiprius lawyer and judge inde- 
 pendent of the books. He was withal an insatiate novel reader. His 
 charge to the jury was always the sun dispelling all clouds. They and 
 their successors have by their decisions largely fixed commercial law 
 with almost the force of statutory legislation. 
 
 The Court of Common Pleas was a favorite tribunal with the bar. 
 The Honorable John T. Irving (brother of Washington Irving) and 
 Honorable Michael Ulshoeffer were its judges. 
 
 In 1831 the Yice-Chancellor's Court in this city was established, 
 and an excellent lawyer and excellent man, the Honorable William T. 
 McCoun, was placed on its bench, and in 1839 an assistant vice- 
 chancellor, the learned and genial Murray Hoffman, was appointed. 
 
 In Brooklyn the City Court was created in 1849, and the able 
 judges of that court and of the County Court have efficiently co- 
 operated with their brethren of the Supreme Court in disposing of the 
 great number of cases arising in that district. 
 
 During the cycle of sixty years of which I have spoken, very great 
 changes have been made in the law itself, adapting it not only with 
 common law plasticity, but by bold yet cautious statutory surgery to 
 the altered conditions of society. 
 
 With your leave, gentlemen, I will allude to a few of these changes, 
 as most of them were before your time, though you are familiar with 
 their history. 
 
 First and foremost, in 1829, the first volume of the revised statutes 
 made its appearance, and soon after the residue of that great revolu- 
 tionary work took place. The changes made by it were far reaching, 
 and radically altered a large portion of the previous law, especially that 
 relating to uses and trusts and powers. It substituted a simple and 
 precise code as to the creation and alienation of estates, and simplified 
 and reduced to more of certainty the practice of the courts. 
 
 Most of the old lawyers received it not only with the "cold 
 shoulder," but many of them with maledictions, and when thereafter, 
 as sometimes happened in the course of business, their opinions or 
 
234 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 actions were faulty because not in accordance with provisions of that 
 work, the fault was indignantly ascribed to the statute and not to the 
 lawyer, and he felt relieved from any imputation of fault if he could 
 show himself in accordance with the previous law, and how wrong 
 therefore the new statute was. 
 
 Experience and the reports have made us all acquainted with the 
 many questions that have arisen, but are now no longer open, under 
 that great code, which has relieved us from much law and many rales 
 based on other and early conditions of the world no longer existing — 
 rules and law. which had outlived the reasons of their creation, and 
 which had become instruments of frequent embarrassment and wrong. 
 
 We of the profession are enriched by the admirable address on the 
 subject of " The Revision and the Revisers," delivered before the Asso- 
 ciation of the Bar in January last by our well-beloved brother, William 
 Allen Butler. It is a lucid and instructive history of " the earliest re- 
 corded effort at a written system of governmental statute law for an 
 English-speaking people," and a most interesting memorial of the emi- 
 nent lawyers who constr acted the great work. 
 
 Another change, and which was at the time deemed by very many 
 to be almost agrarian, was the abolition of imprisonment for debt (in 
 1831). Against the measure it was urged that Fi Fas were almost 
 always returned nulla bona, while on Ga Sas very large amounts were 
 promptly paid. Cases of actual oppression under the law were rare, 
 because honest debtors seldom failed to obtain bail for the limits, and 
 absolute discharges of such debtors, under the insolvent laws were 
 readily obtained. But imprisonment for debt of any but dishonest 
 debtors was abolished, and no sane person nowadays would think of 
 reinstating it. By parallel provision of law, household furniture is no 
 longer liable to distraint for rent ; and the enlightened philanthropy 
 of Hamilton Pish secured, while he was governor of the state, im- 
 munity of every homestead (not exceeding a specified value), from sale 
 on execution. 
 
 Still another change (in 1847) subversive of a settled rule, I might 
 almost say principle, of law was that of allowing parties to suits, and 
 other interested witnesses, to testify on trial of causes. This innova- 
 tion was regarded with great disfavor by conservative. men, but though 
 under the law as it now stands cases doubtless occur in which inter- 
 ested false witnesses thwart justice, yet the great pervading and de- 
 tecting power of truth — magna est et prevalebit — generally discovers 
 and defeats the falsehood. I think that the experience and judgment 
 of the courts and the profession on the whole sustain the change, and 
 would be adverse to a reinstatement of the rule that interest should 
 exclude the witness. 
 
 Whether the laws of 1848-49, changing the property relations and 
 powers of husbands and wives, and the severance of interests which 
 those laws have effected, are an unmixed good, may be questioned. 
 
HISTOKY OF THE BENCH AND BAR OF NEW YORK 
 
 235 
 
 I will only allude further 
 to. the general laws under 
 which corporations may be 
 now created almost without 
 limit. An early - example 
 was that of the general 
 banking act in 1838, after- 
 wards adopted in substance 
 by congress as the model of 
 the national banking law. 
 As more than one corpora- 
 tion could not then be cre- 
 ated by one act, this was so 
 framed as to avoid the pro- 
 hibition, and the ..Court of 
 Errors decided that, though 
 an association formed under 
 it was in fact a corporation, 
 yet it was not such a cor- 
 poration as the constitution 
 of 1821 prohibited. 
 
 The constitution of 1821, 
 under which the general 
 banking act of 1838 was 
 formed, forbade that any 
 corporation should be creat- 
 ed save by a special act, 
 while, on the other hand, 
 the constitution of 1846 pro- 
 hibited special charters ex- 
 cept for municipal purposes, 
 and authorized general laws 
 under which mankind at 
 large in this state can now 
 become corporations for 
 almost any conceivable busi- 
 ness. To railroad corpora- 
 tions thus authorized is del- 
 egated (perhaps necessarily) 
 the extreme right of eminent 
 domain, the exercise of 
 which by banded specula- 
 tors is full of peril, and often 
 of oppression, to owners of 
 real property. 
 
 The abolition of the Court 
 
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 3>itf 
 
 
236 HISTORY OF THE BENCH AND BAR OF NEW TORE 
 
 of Chancery as a distinct tribunal in 1847, and the vesting its powers 
 in the Supreme Court, was another striking act. The people of the 
 state had always revered it. Chancellor Kent had shed lustre on it, 
 and his successors, especially Walworth, the last of the chancellors, 
 had maintained its high repute. Chancery practice was not generally 
 understood in 1829, and was conducted by a small portion of the bar. 
 
 But equity law is now administered by the courts as effectively — 
 possibly not as learnedly — as before, and in this state and in England 
 (following our example) a separate court of chancery no longer exists. 
 
 By the provisions of the constitution of 1846 the time-honored Court 
 for the Trial of Impeachments and the Correction of Errors ceased to be, 
 and in its stead was established our present final tribunal, the Court of 
 Appeals. The former seemed ill-constituted, as it consisted of thirty- 
 three presumably lay members (the lieutenant-governor and the sen- 
 ators), while there were but four law judges (the chancellor and the 
 three judges of the Supreme Court). The chancellor did not sit on the 
 hearing of appeals from his decisions, nor did the judges of the. Supreme 
 Court at the hearing on writs of error from theirs. Yet the decisions of 
 the Court of Errors ranked very high in the jurisprudence of the country. 
 It always happened that some of the senators were able lawyers, 
 and most of the others were practical men of business experience 
 and sound judgment, and their strong good sense, blending with the 
 learned wisdom of the judges, mitigated merely technical or over-rigid 
 rules of law where they conflicted with substantial justice, and resulted 
 in rational decisions on reasonable, instead of harsh, application of those 
 rules. As " mind governs matter," it followed that such of the other 
 lay members of the court as had no knowledge and little judgment 
 " concurred " in what their wiser brethren did, and became practically 
 as harmless as those worthy rural dignitaries whom we have all seen 
 sitting solemn and silent on the bench by the side of the circuit judge. 
 
 I believe that, by the general voice of the bar, the Court of Errors 
 was one of the very strongest judicial tribunals in this country. 
 
 To it has succeeded a court of grand ability. Like its predecessor 
 it passes on questions of more importance, both as regards the amounts 
 and the principles involved, than any other. Its decisions are very gen- 
 erally adopted and applied in other states, and become in effect the law 
 of the land. The decisions of the Supreme Court of the United States 
 are, of course, paramount on questions within its exclusive jurisdiction, 
 but on those relating to commerce, of which this city is the great foun- 
 tain and centre, our Court of Appeals is practically the law-giver. 
 
 The constitution of 1846 provided for an elective judiciary. Great 
 was the anxiety as to the experiment. General has been the satisfac- 
 tion as to the results. 
 
 The change created by the code of procedure of 1848, of which our 
 learned brother, David D. Field, was the chief author, abolishing forms 
 of action and assimilating the practice to former chancery practice, was 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 237 
 
 indeed a revolution, and none would care now to return to the state 
 which preceded it. Its wisdom and its efficiency are attested by its 
 general adoption in twenty-seven states and territories, and its principle 
 in England and Ireland, and in many of the English colonies. When 
 proposed it met with the like opposition to that which the revised 
 statutes encountered, and with the like ultimate acquiescence. 
 
 Who now would consent to restore the ancient technicalities that 
 encumbered the practice and from which the code was an act of eman- 
 cipation ? 
 
 It has relieved Professor Dwight's accomplished graduates, and 
 
 r^agMga^ others who have been admitted to prac- 
 
 /^SSIBIlpBjIl^. tice within the last forty years, from 
 
 ^S^^USE' -- - J®k encountering the study of, and being 
 
 examined about plaints, capiases ad 
 
 :g2pv respondendum, alias and 
 
 '. -"«=» s"~--. --^^feefe^ pluries writs, pledges 
 
 to prosecute, warrants of attorney, assump- 
 sit, debt, trover, replevin, cepit, detinet, tres- 
 pass, trespass on the case, acetiam clauses, 
 scire facias, rebutters, surrebutters, sur-sur- 
 rebutters, dilatory pleas and pleas in avoid- 
 ance, nil dicits, imparlances, circuit rolls and 
 entries, writs of fieri facias, capiases ad satisfaciendum, and a heap 
 of other technical literature (now lying in the chaos in which I have 
 named it), and which has ceased to "tangle justice in a net of forms." 
 
 Speaking of pleading recalls one in actions against counsellors of 
 the court. The defendant was always described in the declaration as 
 " A. B., gentleman, one of the counsellors of this honorable court," and 
 when he was again (as he was often) further alluded to in the declara- 
 tion, he was described as " the said A. B., gentleman, one," etc. I well 
 remember that often when old lawyers met it was their habit to salute 
 one another, not as we do now with " Good morning, counsellor," but 
 " G-ood morning, gentleman, one," etc. 
 
 To cite all the changes which have been made since 1829 would, of 
 
238 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 course, be impracticable, even were it desirable at this time. Those 
 mentioned were in accordance with the altered condition of human 
 affairs. They were not effected by revolution or state craft, but by 
 the wisdom of the people of the state, and are an added proof of the 
 adequacy of popular government. 
 
 I have referred only to statutory changes of the law, and not to 
 those modifications which have resulted in sixty years from cases dis- 
 tinguished, doubted, or overruled ; or to the new law resulting from the 
 use of steam and electricity as agents in the affairs of mankind. 
 
 Though our profession are, as a class, laudator es temporis acti, yet 
 with all their regard for precedents they have ever been prompt and 
 zealous in promoting needed reforms. In all of that character which I 
 have named they have been pioneers and advocates, and they have 
 rejected and defeated much that was perilous. 
 
 To return to the period of 1829 (if you are not too weary of that 
 date), I would add that the summits of the profession were then attained 
 mostly by those who added eloquence to learning and logic, and it was 
 eloquence of indeed a high order when John Wells and Thomas Addis 
 Emmett and their peers were the orators. Not only clients and jurors 
 and the people hungered and thirsted for it, but the judges themselves 
 coveted it, and promoted it by sessions of indefinite length. There 
 were fewer objects of public attraction then than now. The courts were 
 resorts of popular interest, and when a great case was to be tried or 
 argued by great lawyers the court-room would be thronged by eager 
 listeners, laymen as well as the bar. Mr. Wells, who died just before 
 that period (in 1823), was reputed at once as the most learned lawyer, 
 thorough classical scholar, and brilliant orator at the bar, and his fame 
 lingered long in the profession. Mr. Emmett's reputation was hardly 
 less distinguished. 
 
 Lawyers had time then to acquire and cultivate such graces and 
 accomplishments ; courts and juries and audiences had time to listen 
 to and' delight in them, but as business increased and time became more 
 precious eloquence diminished, and nowadays is rarely heard in court. 
 It is seldom attempted and is not expected. It is out of date. With 
 crowded calendars there is so little time to listen to it that it would 
 now be almost as much out of place in court as in the board of 
 brokers. Our judges would make short work with Demosthenes and 
 Cicero. With a rap on the desk, the judge would tell either of them 
 to confine himself to the case, and remind him that his time was 
 limited to an hour. 
 
 But although the poetry of the bar is thus abated, its prose was 
 never more vigorous, substantial and powerful. It never' more abounded 
 in thorough lawyers, close reasoners and effective advocates. In making 
 this allegation my proofs are present here to-night. Circumspice ! 
 It is certain that our predecessors had few, if any, cases involving such 
 grave questions and vast amounts as those which are now of almost 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 239 
 
 every-day occurrence, and which are conducted by counsel with con- 
 summate skill and strength. Incident to this increase of burden is a 
 proportionate increase of the quiddam honorarium which even lawyers 
 occasionally consent to receive. Brethren of this generation, you are 
 in very " green pastures," although you are not by " still waters." 
 
 It was easier to become a thoroughly learned lawyer in those earlier 
 days than it is now. There was then less of law to be learned, and 
 there was more of time in which to learn it. The world was not in 
 such a hurry then. Kent and Hamilton and Spencer and Burr and 
 Harison and Wells and Emmett and Hoffman and Jones and their 
 cotemporaries had few books to study. Their libraries could almost 
 stand an their mantels. They drew their knowledge from Plowden 
 Coke, Lyttleton, the Year Books, Grotius, Puffendorf, Vattel, Emeri- 
 gon, as well as Blackstone, the fountains of the law. Men of this gen- 
 eration must draw theirs 
 from the torrents and 
 the floods as well. The 
 men of the earlier date 
 were not drowned in, or 
 swept away, as we are 
 liable to be in this by 
 the great deluge of re- 
 ports and treatises. 
 When Chancellor Kent 
 was admitted to the bar 
 in 1785 there was not a 
 solitary volume of re- 
 ports of any court in 
 
 
 FORT LEE FIFTY YEARS AGO. 
 
 this country. The first, 
 
 I believe, was that of Kirby (Connecticut) in 1789, and the first of any 
 court in this state was in 1794, when Coleman's and Caine's Cases ap- 
 peared. Now there are of reports of the courts of this state alone no 
 less than 656 volumes. When we add to these the unceasing cataracts 
 — the " blizzards " — of reports from the other states, the United States, 
 and from England, we realize that the profession of law to-day is, in 
 very truth, experimentum difficile and very different from the holiday 
 journey and calling of our classic predecessors. 
 
 As I remember the ancient New York lawyers of whom I have 
 spoken, there was much more of stateliness, reserve, and formality than 
 prevail at this day ; but I think the experience of the older members 
 of the bar who are here to-night will sustain me in saying that the per- 
 sonal relations between the gentlemen* of the profession, and between 
 them and the bench, have not been at any time more courteous and 
 congenial than now. Sixty years ago there was in the bearing of law- 
 yers toward one another, perhaps somewhat more than at this time, of 
 the punctilio generally imputed to the days of duelling. Two at least 
 
240 
 
 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 Hi 
 
 WmA 
 
 iff- 
 
 
 :Sa;A 
 
 of the learned judges in this city, then on the bench, had been wounded 
 in duels. Three other members of the bar occur to me at the moment 
 who had been so unfortunate as to kill their adversaries, and others 
 had been engaged in such affairs. But compulsion is not now, if it 
 ever was, essential to courtesy. The amenities of life result from indi- 
 vidual and social re- 
 Jlk finement, and the ex- 
 
 action of public senti- 
 ment. Now, too, the 
 libraries, the Bar Asso- 
 ciation, and clubs bring 
 the profession into 
 closer intercourse and 
 relations, and convert 
 into companions and 
 friends intellectual and 
 cultivated men, who 
 would else rarely meet 
 except on occasions of 
 business, and who 
 would exercise no com- 
 bined influence, as they 
 now do, on public opin- 
 ion and interests. Such 
 intercourse abates the 
 asperity of even political 
 differences, and leads to 
 respect and good will 
 between men who in 
 public affairs have a 
 common aim, though 
 they may not be in ac- 
 cord as to the best mode 
 of attaining it. In that 
 spirit we all cordially 
 welcome the return of 
 the very distinguished 
 statesman 1 who, resum- 
 ing his place in the pro- 
 Our sincere good wishes are 
 
 
 
 
 OBELISK, OENTEA1 PARK. 
 
 fession, will make New York his home, 
 for his continued prosperity and happiness. 
 
 Gentlemen, when I learned that I should have the honor of ad- 
 dressing you this evening, my impulse was to sketch the characters of 
 some of our eminent brethren who have passed away. But were I to 
 do so, where should I begin, and where should I stop ? 
 
 1 President Cleveland. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 241 
 
 It is a sad truth that the fame, and even the memory, of the most 
 illustrious of our profession are almost as brief as their lives. Unless 
 coupled with judicial or high political position they vanish from mem- 
 ory when they vanish from the stage. The very names of a large por- 
 tion of the prominent lawyers of my earlier day are, as I have said, 
 unknown to most of the younger gentlemen now present. The judge 
 is preserved in the reports which bear the record of his learning and 
 his wisdom, and the achievements of the statesmen are inscribed in his- 
 tory ; but though Alexander Hamilton and Edward Livingston and 
 James Kent and Ambrose Spencer and Josiah Ogden Hoffman and 
 Samuel Jones were lawyers of consummate ability and distinction in 
 their day, their fame would have ceased ere this but for their careers 
 on the bench, or their action in the government of the country, save 
 Chancellor Kent, who would live in his invaluable Commentaries. 
 
 In my span at the bar what a host of noble men have gone from it 
 in close procession to the grave ! 
 
 Would that the time permitted me even to recite their names ; 
 would that it permitted me to give adequate sketches of Abraham Van 
 Vechten, of Albany, the patriarch of the bar, whose unbounded knowl- 
 edge of the law and exalted character and powerful reasoning made 
 him honored of all men ; the grand and genial David B. Ogden, of 
 whom Chief-Justice Marshall said that " when he had stated his case, 
 it was already well argued"; Peter A. Jay, the scholarly, refined, and 
 profound lawyer ; William Slosson and Thomas Ludlow Ogden and 
 George W. Strong and Jonathan Miller, on each of whom clients safely 
 relied in all matters affecting their estates and last wills and testaments; 
 the very lofty, learned, and accomplished John Duer,.to whom, with his 
 pure, wise, and learned associate Benjamin F. Butler, and the clear and 
 strong John C. Spencer, we owe the revised statutes ; the right-minded 
 and clear-headed Daniel Lord, for many years the leading commercial 
 lawyer in this city, who, when the facts were stated, so immediately saw 
 the whole case and what he termed "the morality" of it, and the law 
 governing it, that his first argument of it in the court below was hardly 
 surpassed by his final argument of it in the Court of Errors or Appeals, 
 he had quick perception of character ; I recollect his speaking to me 
 of a youth then studying law, whom he had lately met, and who, he said, 
 would surely become very distinguished (I would mention the name of 
 that youth but for the presence of Mr. Choate) ; the fascinating Ogden 
 Hoffman, the Erskine of our bar, who left the navy for the law, at which, 
 like his father, he became powerful and eminent, and captivated all by 
 his wit and his wonderful eloquence; his voice was music from the 
 note of a lute to the blast of a bugle ; William Kent, whom everybody 
 loved and admired; like his father, he read everything and forgot 
 nothing ; whenever he was seen in court, all waited to hear him, for 
 even on a common motion he could not avoid charming his hearers 
 alike by his polished wit, his sound law, and his beautiful diction ; 
 
242 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 Marshall S. Bidwell, than whom no better man or lawyer lived ; Pres- 
 cott Hall, William C. Noyes, Edward Sanf ord, Nicholas Hill, and Fran- 
 cis Cutting, each a gentleman respected and loved by his peers, each 
 master of the law, and each very eminent, powerful, and successful in 
 enforcing the rights of his clients ; George Wood, conspicuous for his 
 wonderful learning, his wonderful power in stating, and his mathe- 
 matical power in arguing his cases ; James T. Brady, whose genial 
 nature, wide learning, and masterly eloquence made him one of the 
 strongest and most conspicuous men of his day ; James W. Gerard* 
 irresistible socially and at nisi prius, he bewitched juries, convinced 
 the courts, and was an unsurpassed favorite with the bar ; John An- 
 thon, who for years monopolized the Superior Court, in which it was 
 
 ^ohwtl isa 
 
 FORT WADSWORTH. 
 
 said of him that " he resided," and whose light reading was the Greek 
 and Latin classics ; William Mitchell, the manly, gentle, strong, and 
 learned judge ; Edgar S. Van Winkle, a wise guide and counsellor of 
 trustees of banks and other corporations and of great estates ; Chief- 
 Justice Samuel Jones, at one time chancellor, for many years judge of 
 the Superior Court and afterward of the Supreme Court, and of whom 
 we all spoke, not irreverently, as " the old chief," than whom, perhaps, 
 no more learned judge or able lawyer, save Chancellor Kent, could be 
 named at the bar. When he left the bench, he returned to the prac- 
 tice, in which he continued to his death. Grave, reserved, and digni- 
 fied as he was in manner, no man enjoyed in youth more than he did 
 in his old age the pleasures of society and of festive, social entertain- 
 ments. We all used to wonder that at fourscore years his tastes and 
 sympathies were so keen, and that at and after midnight convivial fes-. 
 
HISTOKY OF THE BENCH AND BAB OF NEW YORK 243 
 
 tivities were so attractive to Mm. But I confess that of late I view 
 this in a different light, and do not now wonder, or perceive any reason, 
 why he should not have enjoyed them as he did. 
 
 But I must stop. I have trespassed too much on your hours, and 
 yet I have not named a tithe of the good men and strong, judges and 
 lawyers, whose memories shall be preserved by enduring records — men 
 among the ablest and foremost of their day, such as Smith Thompson, 
 the justice of the Supreme Court of the United States for this circuit, 
 grave, austere, the very incarnation of judicial dignity and power ; his 
 successor in that office, Samuel Nelson, formerly chief -justice of this 
 state, the most imperial man in his personal appearance and bearing 
 on the bench I ever saw, unsurpassed in clear, strong, sound sense and 
 good law, honored and loved by the bar, and the pride of the state ; 
 the great admiralty judge, Samuel R. Betts ; the excellent lawyers 
 and judges, Samuel A. Talcott, Charles O'Conor, George Griffin, Henry 
 R. Storrs, Peter W. Radcliff, Henry E. Davies, John A. Lott, John W. 
 Brown, Grenville T. Jenks, James Emott, Joseph S. Bosworth, John 
 Yan Buren, Lewis B. Woodruff, the Emmetts, the Sandfords, Joshua 
 Spencer, George and Edward Curtis, E. H. Owen, Samuel B. Ruggles, 
 Josiah Sutherland, Benjamin W. Bonney, George R. J. Bowdoin, 
 Quincy Morton, Hugh Maxwell, Thomas L. Wells, G. G. Yan Wogenen, 
 the Blunts, Humphrey H. Anderson, Benjamin K. True, David Gra- 
 ham, Hiram Ketchum, David S. Jones, Greene C. Bronson, John W. 
 Edwards, Elisha W. King, John L. Mason, Ambrose L. Jordan, John 
 Cleaveland, Anthony L. Robertson, Charles P. Kirkland, Alexander 
 W. Bradford, Erastus C. Benedict, Charles W. Sanford, William A. 
 Beach, Elijah Paine, George Wilson, and very many others of equal 
 worth. I might well, did time permit, recall the names of the eminent 
 judges of the courts, and of the renowned lawyers of the interior of 
 the state, and of such of our honored brethren as have more recently 
 passed away. 
 
 I am well aware that gentlemen present, who did not know those 
 whom I have named, will think that I have dealt in unmeaning be- 
 cause unsparing eulogies. But, " my conscience bearing me witness," 
 I have uttered no word respecting any of them which they did not 
 merit ; and the one or two contemporaries of all of them who survive 
 and are present here will, I am sure, concur in what I have said of 
 them. Full well I know how vain is this mere mention of the names 
 which, while lingering here, I cherish. Full well I know that it recalls 
 few memories to most of you. But it seems some tribute to the hon- 
 ored dead to invoke them as elder brethren of the distinguished men 
 assembled here to-night. 
 
BBOTT, BENJAMIN VAUGHN (born in Boston, June 4, 
 1830 ; died in Brooklyn, February 17, 1890), was a son of 
 Jacob Abbott, author of the Rollo books. He was graduated 
 at the New York University in 1850, studied for a year at the 
 Cambridge Law School, and was admitted to the bar in New York City 
 in 1852. He entered upon the practice of the law in partnership with 
 his younger brother, Austin. 1 After several years of practice he began 
 to devote himself chiefly to legal writing. Alone or in collaboration 
 with his brother he was the author or compiler of nearly one hundred 
 law volumes. 
 
 As secretary of the New York code commission he personally 
 drafted the report of a penal code, which was submitted to the 1 legisla- 
 ture in 1865, and became the basis of the present code. In June, 1870, 
 he was appointed by President Grant one of three commissioners to 
 revise the statutes of the United States. This work, prosecuted for 
 three years, resulted in the consolidation of sixteen volumes of federal 
 laws into one large octavo volume. In continuation of his labors in 
 this field he devoted six years to the preparation of a new edition of the 
 " United States Digest " (1879), reducing the original digest to thirteen 
 volumes, to which he added nine annual supplements. He also com- 
 piled a " National Digest " in five volumes, containing all the important 
 acts of congress, decisions of the United States Supreme Court, Circuit 
 and District Courts, Court of Claims, etc., from the foundation of the 
 government to December, 1888. 
 
 Among his other important works are " A Digest of Decisions on 
 Corporations from 1860 to 1870" (1872), "A Treatise on the Courts of 
 the United States and their Practice" (1877), a "Dictionary of Terms 
 in American and English Jurisprudence " (1879), and " Judge and 
 Jury " (1880), a collection of miscellaneous articles. He was a frequent 
 writer for the press and the periodicals, contributed many articles to 
 the " Medical Reference Handbook," and served as editor for the 
 Lawyers' Co-operative Publishing Company of Rochester. 
 
 His contributions to legal literature belong in the first rank of 
 such works. His digests and compilations are uniformly distinguished 
 by a methodical arrangement and a system of analysis which have 
 done much to simplify federal and state law. 
 
 1 See Vol, ii„ 
 244 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 245 
 
 LEXANDEP, JAMES (born in Scotland about 1690 ; died in 
 New York, April 2, 1756), was one of the most eminent 
 leaders of the New York colonial bar. He fled to America 
 in 1716, being compelled to leave England on account of his 
 participation in the Stuart cause. He was the first official recorder of 
 the town of Perth Amboy, New Jersey (1718), and having served as an 
 officer of engineers in Scotland was appointed surveyor-general of New 
 York and New Jersey. He studied law in his intervals of leisure. He 
 was counsel in many important cases, notably the famous case of 
 Peter Zenger, publisher of the 
 New York Weekly Journal, 
 which, resulting finally in the dis- 
 charge of Zenger, established for 
 all time the principle of the lib- 
 erty of the press in America. In 
 consequence of the bold stand 
 that he took in that case as one 
 of Zenger's counsel, contending 
 that the court before which the 
 accused was brought was not a 
 legally constituted tribunal, his 
 name was stricken from the roll 
 of practicing lawyers for contempt 
 of court, but he was subsequently 
 reinstated. 1 
 
 He was for many years prom- 
 inent in the government of the 
 colony, serving in the colonial leg- 
 islature and council as attorney- 
 general (1721-23) and as secretary of the province. He was one of the 
 principal regular contributors to Zenger's Weekly Journal. He main- 
 tained a correspondence with Halley, royal astronomer at Greenwich, 
 and other learned mathematicians, and co-operated with Franklin and 
 others in founding the American Philosophical Society. John Tabor 
 Kempe, William Smith, Jr., James Duane and Peter P. Livingston 
 were law students at the same time in his office. He acquired great 
 wealth and left a large estate. He resigned his claim to the earldom 
 of Stirling to his son William (the celebrated Lord Stirling of the 
 Pevolutioh), who prosecuted it without success. Politically he be- 
 longed to the whig faction of the colony. His death resulted from a 
 severe illness occasioned by the fatigue and exposure of a trip that he 
 made to Albany to oppose a ministerial scheme inimical to the rights 
 of the colony. 
 
 1 See pp. 60-08 of -this volume. 
 
 as at iy/£t^bst 
 
Numb, tXIV, 
 
 THE 
 
 New -York Weekly JOURNAL 
 
 Containing the frefloejl Advkes 9 Foreign, and Dmiejlick.^ 
 
 MUNDJT January ajth, 1734,. 
 
 !■ » ■ ■ »■ ■ 
 
 Jujium et tenaeem propofiti Virum, 
 Fan civium Ardor prava jubentium, 
 fan Vultut inftanth Tyranni, 
 Mente quatit folida. 
 
 Hor. 
 
 HE firft effential Ingre- 
 dient Necellary to 
 form a Patriot, is Im- 
 partiality •■, for if a 
 Perfon (hall think 
 himfelf bound by 
 any other Rules but thofe of his* own 
 Reafon and Judgment, or obliged to 
 follow the Dilates of others, who 
 fball appear the. Heads of the.' JParty 
 he is ingaged in, vhe- finks "below the 
 Dignity of a Humane Creature, , and 
 voluntarily refigns thofe Guides which 
 Nature has given him, to direct' him 
 in all Spheres of Life. 
 
 The Coldnefs, and fometimes Dif- 
 dain, which a Man governed thus by 
 the Principles of Honour' generally 
 meets with on fuch Occafions from 
 the Friends he has ever afted in Con- 
 cert with, for the former Part of his 
 Life, are Confidenrffttns which but 
 too often fubdue the beft inclined Spi- 
 rits, and prevail with 'them to be 
 paflive and obedient, rather than ac- 
 tive and refolute : But if fudh Per- 
 fons coald but once feel the Comfort 
 and Pleafure of having done their 
 Duty, they would meet with a fuffi- 
 cient Reward within themfelves, to 
 over ballance the Lofs of their Friends, 
 or the Malice !of their Enemies, 
 
 Ambition and Avarice are two V> 
 ces, which are direftly oppoGte tothfc 
 Character of a Patriot, for tho' an 
 Jncreafe of Power, or of Riches, may 
 be the proper Reward, of HonouiLaos. 
 Merit, and the molt honeft Statefman 
 may, with Juftice accept of either; 
 yet when the Mind is infected with a 
 Third after them, all Notions of 
 Truth, Principle and Independency 
 are Loft in fuch Minds, and, by 
 growing Slaves to their own Paffions* 
 they become Naturally fubfervient to 
 thofe who can indulge and gratify 
 them. 
 
 In public A&airs it is the Duty , of 
 every Man toTTbe free from perfonal 
 Prejudices .; neither ought we to op- 
 pofe any Step that is taking for the 
 Good of our Country, purely beeaufe 
 thofe that are the Contrivers and Ad- 
 vifers of it, are Obnoxious ,to us. 
 There are hup too many Precedents of 
 this Nature, when Men have call the 
 molt black Colours on the Wifefl: of 
 Adminiftrations, beeaufe thofe that 
 had the Direction of Affairs were, 
 their Enemies in private Life; and 
 this ill Way of Judging may be atten* 
 ded with dangerous Confequences to 
 the common Weal. 
 
 Intrepidity and Firmnefe are two 
 Virtues which every Patriot maflr be 
 Mafler of, or elfe all the other Talents 
 he is poffefs'd of are ufelefsand barren.; 
 Whoever, therefore, when he has 
 formed a Judgment on any Subjeft re- 
 lating 
 
 FAC-SIMIJ*E OF PETER ZENGER's NEWSPAPER. 
 
 240 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 247 
 
 LLEN, HENRY WILDER (born at Alfred, Maine, October 
 18, 1833 ; died in New York, October 14, 1891), was the son of 
 Honorable William Cutter Allen, for many years judge of 
 probate for York county, Maine. He was educated at Dart- 
 mouth College, graduating in the class of 1856. He began his prepara- 
 tion for the bar in the office of Seth J. Thomas in Boston, and, coming 
 to New York, finished his studies under Honorable Charles A. Rapallo, 
 being admitted to practice in 1858. He was chief clerk of the district- 
 attorney's office during the administration of Nelson J. Waterbury, 
 and subsequently became Judge Waterbury's partner. In 1867 he was 
 appointed a register in bankruptcy by Chief- Justice Chase, a position 
 which he held for fourteen years. Governor Cleveland appointed him in 
 1884 judge of the Court of Common Pleas to fill a vacancy, and in the 
 fall of that year he was elected for a full term. 
 
 Judge Allen was highly popular with the profession, and was much 
 beloved in the social relations of life. He was a democrat in politics, 
 and served for a long period of years as one of the governors and the 
 secretary of the Manhattan Club. 
 
 LLEN, WILLIAM P., was born in Windham county, Con- 
 necticut, July 28, 1808, and died at Oswego, New York, 
 June 3, 1878. He was admitted to the bar at an early age, 
 and came to New York state to practice his profession, 
 rapidly advancing to an eminent position at the bar. At the age of 
 forty he was elected a judge of the Supreme Court for the 5th judicial 
 district, and upon the expiration of his term of eight years he was 
 re-elected. In 1863 he removed to New York City, where for several 
 years he was engaged in private practice. In November, 1867, he was 
 elected controller of the state on the democratic ticket. His adminis- 
 tration of the office was signalized by a marked reduction in the 
 state debt. In his annual reports to the legislature he dwelt upon the 
 excessive cost to the state of maintaining the canals and prisons — 
 abuses which have since been righted. While still occupying the 
 position of controller he was elected to the bench of the Court of 
 Appeals. He served in that office from 1871 until his death. 
 
 He ranks among the very able judges of the higher courts of the 
 state, and the many learned, opinions which he wrote enjoy high 
 repute for authority. 
 
 NGEL, WILLIAM G. (born on Block Island, July 17, 1790 ; 
 died at Angelica, Eew York, August 13, 1858), was descended 
 from an old American family, whose first ancestor emigrated 
 from Warwick, England, early in the seventeenth century. 
 He was reared on a farm, and was almost wholly deprived of educa- 
 
248 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 tional opportunities. Ambitious for knowledge, however, lie educated 
 himself by the help of such books as he could procure, and, resolving 
 to fit himself for the legal profession, he entered the office of William 
 Dowse, a lawyer in Cooperstown, New York, afterward continuing his 
 studies in the office of Colonel Farrand Stranahan of the same place. 
 By severe efforts and rigid economy he managed to support himself 
 during his long period of preparation for the bar. It was not until 
 1817, at the age of twenty-seven, that he was admitted. He became 
 one of the leaders of the Otsego county bar. In 1821 he was chosen 
 surrogate of the county, and he represented the district in congress 
 from 1824 to 1832. In 1833 he removed to Hammondsport and formed 
 a copartnership with Honorable Morris Brown. This lasted until 1835, 
 when the firm of Angel & Grover was established, the junior member 
 being Martin Grover, afterward the distinguished judge of the Court 
 of Appeals, who had received his legal training in Mr. Angel's office. 
 He was a member of the constitutional convention of 1846. He was 
 elected judge of Allegany county in 1846, and served for four and one- 
 half years, when he retired. 
 
 NTHON, JOHN (born in Detroit, Michigan, May 14, 1794 ; 
 died in New York City, March 5, 1863), was the second son 
 of Doctor G. C. Anthon and a brother of the distinguished 
 Doctor Charles Anthon, the classical writer. He was gradu- 
 ated at Columbia College at the early age of seventeen with the high- 
 est honors of his class, studied law, and upon attaining his majority 
 was admitted to practice in the Supreme Court. He became one of 
 the foremost lawyers of his day. During the war of 1812 he was fre- 
 quently employed as judge advocate. He was in command of a com- 
 pany of militia and served in the defence of New York City during 
 that conflict. As one of the most prominent lawyers practicing in the 
 Mayor's Court, he drew the act which was passed in 1821 by the legis- 
 lature changing the name of that court to the Court of Common Pleas 
 for the County and City of New York, and creating a first judge to 
 hold office during good behavior or until he should reach the age of 
 sixty years. Under this act the name, which had been retained for one 
 hundred and fifty-six years, denoting the municipal origin of the court, 
 was abandoned and a permanent law judge appointed in the nominal 
 place of the mayor, who had long since ceased to preside. 
 
 Mr. Anthon for years afterward was one of the leading practition- 
 ers before this- court. He was one of the founders of the New York 
 Law Institute and was its president at the time of his death. He was 
 a thorough student of the law and wrote several treatises. He pub- 
 "Anthon's Law Student" and "American Precedents" (1810), "Di- 
 gested Index to the Reports of the United States Courts " (1813), " Re- 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 249 
 
 prints of Cases at Nisi Prius in the New York Supreme Court " (1820), 
 and " An Analytical Abridgment of Blackstone's Commentaries," with 
 a prefatory essay " On the Study of Law " (2d ed., 1832). 
 
 | NTHON, WILLIAM HENRY (born in New York City, Au- 
 gust 2, 1827 ; died there November 7, 1875), was a son of John 
 Anthon. He studied law under his father's direction and 
 was admitted to the bar in 1848. He was a member of the 
 state legislature and served on Governor Morgan's staff as judge advo- 
 cate during the war. He was prominent as a practitioner. He was 
 connected with a number of celebrated cases, notably the Brinckly 
 divorce case and the trial of the rioters who burned the quarantine 
 buildings on Staten Island in 1858. In this trial he was the counsel 
 for the rioters. 
 
 RTHUR, CHESTER ALAN, twenty-first president of the 
 United States (born in Fairfield, Franklin county, Vermont, 
 October 5, 1830 ; died in New York City, November 18, 1886), 
 was the eldest son of Reverend William Arthur and Melvina 
 Stone. His father was born in Antrim, Ireland, in 1796, was graduated 
 at Belfast College, came to America, studied law, was then called to the 
 Baptist ministry, and was finally settled as pastor of the Calvary Bap- 
 tist Church of Albany, New York. He removed to Schenectady, pub- 
 lished a magazine, the Antiquarian, and an " Etymological Dictionary 
 of Family and Christian Names." He was learned in the classics and 
 history, and gave the latter years of his life to literary pursuits. He 
 died in Newtonville, near Albany, October 27, 1875. Mr. Arthur's ma- 
 ternal ancestor, Uriah Stone, was a New Hampshire pioneer, who mi- 
 grated from Hampstead to the Connecticut River in 1763. 
 
 Chester A. Arthur was graduated from Union College in 1848 at 
 eighteen years of age. Deciding while in college to pursue the law, he 
 attended a law school at Ballston Spa and for a brief period continued 
 his legal studies at Lansingburg, where his father then resided. In 1851 
 he was principal of an academy at North Pownal, Bennington county, 
 Vermont, where in 1854 James A. Garfield, then a student in Williams 
 College, taught penmanship during the winter vacation. In 1853 he 
 entered the law office of Erastus D. Culver, New York City, as a stu- 
 dent, and in the same year he was admitted to the bar and became a 
 member of the firm of Culver, Parker & Arthur. From the beginning 
 he was successful in his profession, and before he reached the age of 
 twenty -five he was connected as counsel with two cases of great public 
 interest and consequence, involving the rights of the negro. The first of 
 these was the notable Lemmon case. Jonathan Lemmon, a slaveholder, in 
 1852 brought to New York from Virginia eight of his slaves, designing 
 
250 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 to ship them by rail to Texas. A writ of habeas corpus was obtained 
 from the Superior Court of the City of New York, in consequence of 
 which the slaves were released on the ground that they had become 
 free men by being brought by their master into a free state. Mr. Ar- 
 thur, at that time still a student, took a decided interest in behalf of 
 the slaves, having from his early associations formed strong anti-slav- 
 ery convictions. In the resulting litigation he was one of the counsel 
 for the negroes in association with Ogden Hoffman, E. D. Culver, Jo- 
 seph Blunt, William M. Evarts, and the attorney-general— the chief 
 counsel for the slaveholder being Charles O'Conor. The other case, 
 equally important and celebrated, was that of Lizzie Jennings against 
 the Fourth Avenue Railroad (1855), in which the right of colored per- 
 sons to ride in the street cars of New York was established. 
 
 Mr. Arthur's political activities and public services of course are 
 the distinctive phases of his life, yet for nearly twenty years after his 
 admission to the bar his professional career was interrupted by only a 
 brief period of official service, and he is well entitled to remembrance 
 among the eminent and able members of the bar of the past. 
 
 His first vote was cast for W infield Scott, the whig candidate for 
 president in 1852, and he was one of the organizers of the republican 
 party in the state. In 1861 Governor Morgan appointed him to a place 
 on his staff as engineer-in-chief with the rank of brigadier-general, and 
 in April of that year, at the breaking out of the war, he became acting 
 quartermaster-general with headquarters in New York City. In this 
 position it was his duty to prepare and forward the New York state 
 troops, and he rendered invaluable services. He went out of office on 
 December 31, 1862, with the expiration of Governor Morgan's term. 
 
 He now formed a legal copartnership with Henry G. Gardner, 
 which lasted until 1867. After, the dissolution of the firm he practiced 
 independently for five years. During this time he was for a while 
 counsel for the New York City department of assessments and taxes. 
 In December, 1871, President Grant appointed him collector of the 
 port of New York. Soon after accepting this office he organized (Jan- 
 uary 1, 1872) the law firm of Arthur, Phelps & Knevals. He continued 
 to serve as collector of the port until July 11, 1878, when he was sus- 
 pended by President Hayes, who, being in sympathy with the anti- 
 Conkling faction of the New York republicans, had resolved upon Mr. 
 Arthur's removal as a stroke of policy. Upon leaving the collector's 
 office he returned to the practice of the law, his firm now being styled 
 Arthur, Phelps, Knevals & Ransom. 
 
 Mr. Arthur's subsequent career is a part of the history of the na- 
 tion, and it does not come within the scope of this article to review it 
 with any degree of formality. At the national republican convention 
 of 1880 he co-operated heartily with Senator Conkling in the endeavor 
 to nominate General Grant for a third term. The selection of Garfield 
 as a compromise candidate was followed by the choice of Mr. Arthur 
 
HISTORY OE THE BENCH AND BAK OF NEW YORK 251 
 
 for the vice-presidency, as a concession to the Grant-Conkling element 
 of the party. Garfield and Arthur were elected (carrying New York 
 state by 21,000), and on March 4, 1881, they were sworn into office. In 
 the memorable controversy between President Garfield and the New 
 York senators on the question of patronage Vice-President Arthur 
 sided with Senators Conkling and Piatt. But after the tragedy of July 
 2, 1881, this factional strife came suddenly to an end, and the dignified 
 and patriotic bearing of the vice-president during the period of sus- 
 pense which followed went far toward reassuring those who at first 
 were disposed to regard the possibility of his accession to the presi- 
 dency with grave apprehension. General Garfield died of his wound 
 on September 19, and the next day Mr. Arthur, at his residence in New 
 York, 123 Lexington avenue, was sworn in as president before Judge 
 John B,. Brady, of the New York Supreme Court. Returning to Wash- 
 ington he again, on the 22d, took the oath before Chief-Justice Waite, 
 delivering a brief inaugural address, which was admirable both for its 
 spirit and its terms. 
 
 President Arthur's administration was of a conservative character, 
 and, on the whole, met the best expectations of the country. In the 
 national republican convention of 1884 his name was presented for the 
 presidential nomination, and he received 278 votes on the first ballot, but 
 Mr. Blaine was chosen as the candidate of the party. At the close of his 
 term, March 5, 1885, he retired to private life. He died suddenly from 
 apoplexy at his home in New York, November 18, 1886. 
 
 Mr. Arthur was one of the earliest members of the Association of 
 the Bar of the City of New York. 
 
 TTWOOD, WILLIAM, the third chief-justice of the state and 
 the first to receive his commission and salary directly from 
 the crown, was a son of John Attwood of Bloomfield, in 
 Essex, England. The date of his birth is not known. He 
 was called to the bar in 1674, and was admitted a fellow of Grey's Inn. 
 He is said to have been " a very considerable man in his profession in 
 London," and was known in Westminster Hall and at the bar of the 
 House of Lords. He was a voluminous author on historical and theo- 
 logical subjects. He wrote an extensive treatise entitled " The Funda- 
 mental Constitution of the English Government, proving King William 
 and Queen Mary our lawful King and Queen." Another of his works, 
 " The Superiority and Direct Dominion of the Crown of England over 
 the Crown and Kingdom of Scotland," gave great offence in Scotland 
 and was burned by the common hangman, by order of the Scottish 
 parliament. 
 
 The lords of trade, having been petitioned by the colonial gov- 
 ernor of New York— Bellomont— to strengthen the judiciary by the 
 
252 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 appointment of a chief-justice with sufficient legal training to admin- 
 ister and enforce the law, sent over Attwood in the summer of 1701. 
 
 In addition to his functions as chief- 
 justice, he was a member of the council 
 and a judge in admiralty with jurisdic- 
 tion embracing the New England col- 
 onies, New York, New Jersey, and 
 Pennsylvania. The colony was at that 
 period agitated by the quarrels of the 
 Leislerian and Bayard factions. Chief - 
 Justice Attwood was in sympathy with 
 the Leislerians, and in the trial of Bay- 
 ard and Hutchins for treason his bias 
 and arbitrary acts caused much dissatis- 
 faction. After the arrival of Governor 
 Cornbury he was accused of corruptly 
 perverting justice in cases before him in 
 which his son was counsel.' He was sus- 
 pended from office, and, apprehensive of arrest, crossed to New Jersey 
 in the night time and, adopting the name of Jones, travelled to Vir- 
 ginia, whence he sailed for England. He wrote pamphlets justifying 
 his course, and sought reinstatement, but without success. He died 
 in England about 1709. 2 
 
 LORD BELLOMONT. 
 
 Governor of New York, 1698-1701. 
 
 ACON, EZEKIEL (born in Boston, Massachusetts, September 
 1, 1776 ; died in Utica, New York, October 18, 1870), was 
 graduated at Yale College in 1794 and was prepared for the 
 law in the Litchfield (Connecticut) law school. He first 
 practiced in Stockbridge, Massachusetts, and for twenty years re- 
 mained a member of the Massachusetts bar. In 1806 and 1807 he was 
 a member of the state legislature, from 1807 to 1813 a member of con- 
 gress, from 1813 to 1815 chief-justice of the Court of Common Pleas 
 for the western district of Massachusetts, and in 1815 was appointed 
 1st comptroller of the treasury of the United States. In the same 
 year he removed to Utica, New York. In this state he was eminent at 
 the bar, serving in the legislature, as judge of the Court of Common 
 Pleas, and as a member of the constitutional convention of 1821. He 
 ran for congress on the democratic ticket in 1824, but' was not elected. 
 In 1843 he published an autobiographical work, " Kecollections of Fifty 
 Years." 
 
 1 In a letter to the home government, Cornbury 
 wrote : 
 
 "Attwood, in the execution of his office, as chief- 
 justice and judge, in almost all cases that came judicially 
 before him. by the .general report of all present, did, 
 openly, notoriously and most scandalously, and with 
 wonderful partiality, in almost all cases in which his 
 son was concerned as counsel, espouse, and, indeed, 
 pleaded and gave countenance to such causes, and 
 
 finally gave judgment on ye (son's) side ; by means of 
 which justice was perverted, ye laws abused, and ye 
 subjects exceedingly injured ; which recommended his 
 son to great practice, and large sums of money was by 
 parties given to him, to buy his father's favor." 
 
 5 For a history of Attwood's career and the Bayard 
 trial, see Honorable Charles P. Daly's articles in the 
 Green Bag for March, April and May, 1895. 
 
HISTOEY OP THE BENCH AND BAR OF NEW YORK 253 
 
 ALDWIN, JOHN (born at Lebanon, Connecticut ; died at 
 Almond, New York, in 1843), was one of the most prominent 
 western New York practitioners of his time. He received a 
 good education and inherited a comfortable fortune from his 
 father's estate. Desiring to fit himself for the law, he entered the 
 office of Samuel Miles Hopkins, at Moscow, Livingston county, New 
 York. Upon his admission to the bar he. commenced practice at 
 Moscow. Soon afterward, through the business failure of a brother 
 whose paper he had endorsed, his entire property was swept away. 
 Devoting himself energetically to his profession, he rapidly made a 
 reputation which yielded him very substantial rewards. Removing to 
 Dansville, his practice gradually extended through the counties of 
 Allegany, Livingston and Steuben. In 1835 he formed a copartnership 
 with Honorable William M. Hawley at Hornellsville. This association 
 was dissolved in a few years, and afterward Mr. Baldwin practiced 
 alone. He was noted for wit and cleverness in repartee, and also for 
 personal peculiarities which sometimes had rather eccentric mani- 
 festations. 1 
 
 ANGS, FRANCIS NEHEMIAH (born in New York City, 
 February 23, 1828 ; died in Ocala, Florida, November 30, 
 1885), was descended from a puritan ancestry. His father 
 was Reverend Nathan Bangs, a distinguished clergyman of 
 the Methodist denomination and writer on religious subjects. Francis 
 N. Bangs attended the Wesleyan University at Middletown, Connecti- 
 cut, and the University of the City of New York, graduating in 1845. 
 He studied law at Yale, and in 1850 was admitted to the bar in New 
 York. His first legal copartnership was with John Sedgwick, after- 
 ward chief- justice of the Superior Court. Among the other prominent 
 members of the New York bar with whom he was associated at various 
 times were George Buckham, Joshua M. Van Cott, Thomas M. North, 
 C. W. Bangs and Francis L. Stetson. His firm at the time of his 
 death, Bangs & Stetson, was universally known as one of the foremost 
 law firms of the country. 
 
 Mr. Bangs quickly attained an eminent position in his profession, 
 applying himself especially to bankruptcy law and railway and cor- 
 poration business. As attorney and counsel for the assignee of 
 Ketchum, Son & Co., a firm which had conducted a most extensive 
 business in stocks and securities, he performed his duties with such 
 fidelity and ability that ever afterward his services were in constant 
 request in litigations involving great interests. Among the cases in 
 which he was counsel were the Cesnola and Havemeyer estate suits, 
 and those resulting from the Grant & Ward failure. He was an in- 
 defatigable worker, frequently devoting fifteen hours a day, for days 
 
 > For an entertaining sketch of Mr. Baldwin, see Proctor's " Bench and Bar of New York," 
 
254 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 in succession, to a single task, and his death at a comparatively early- 
 age was ascribed to overwork. 
 
 Mr. Bangs had no ambitions except in the line of his profession, 
 and he never held public office or participated actively in politics. 
 But he co-operated heartily in matters of public concern that engaged 
 his interest as a citizen. A republican in politics, he was one of the 
 founders of the Union League Club. He was also an original member 
 of the Association of the Bar, and was one of the leaders in the move- 
 ment for the impeachment of the " ring " judges, Barnard, Cardozo 
 and McCunn. He was president of the Bar Association in 1882 and 
 18S3. 
 
 ARBOUR, JOHN" MERRITT (born in Cambridge, Washing- 
 ton county, New York, September 5, 180T ; died in New York 
 City, December 8, 1881), was admitted to the bar in Chau- 
 tauqua county, and soon afterward went to Michigan, re- 
 maining there until 1848. He was elected a justice of the peace, was 
 appointed by the governor (1837) a commissioner to devise and put 
 into operation a system of internal improvements, and served for eight 
 years as a county judge. Soon after his return to New York he was 
 appointed to a position in the office of the solicitor of the treasury 
 at Washington. Removing to New York City in 1850 he applied 
 himself earnestly to his profession, and gradually advanced to promi- 
 nence. He was elected associate- justice of the Superior Court in 1861 
 and re-elected in 1867. He succeeded to the office of chief-justice of 
 the court upon the death of Chief- Justice Robertson. After his retire- 
 ment from the bench he was frequently selected as referee in cases of 
 marked importance and interest, and he occasionally appeared as 
 counsel in suits involving constitutional questions or matters of con- 
 siderable intricacy. One of the suits prosecuted by Judge Barbour in 
 his latter years, Dodge vs. the County of Platte in the State of Missouri 
 (82 N. Y., 218), resulted in a memorable triumph. As counsel for the 
 defence he carried the case to the Court of Appeals, which, on the 
 strength of his argument, reversed the decision that had been rendered 
 by the general term of the Superior Court, at that time composed of 
 judges of conspicuous ability and learning. 
 
 ARBOUR, OLIVER L. (born in Cambridge, Washington 
 county, New York, in June, 1811 ; died in Saratoga, New 
 York, December 17, 1890), was graduated from Fredonia 
 Academy in 1827, studied law and was admitted to the bar 
 in 1832. From 1847 to 1849 he was reporter of the New York Court of 
 Chancery, and from 1848 to 1876 of the Supreme Court. Beside his 
 numerous volumes of reports, which have made his name a familiar one 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK. ' 255 
 
 to lawyers and are admirable examples of conscientious work, he was 
 the author of a number of legal books and treatises. 
 
 AKKBE, GEOEGE PAYSON (born in Eindge, New Hamp- 
 shire, October 25, 1807 ; died in Buffalo, January 27, 1848), 
 was educated at Amherst and Union colleges, graduating 
 from the latter in 1827. While attending Union College he 
 studied law in the office of Alonzo C. Paige, author of Paige's Chancery 
 Eeports. After his graduation he removed to Buffalo and entered the 
 office of Stephen G. Austen. Upon his admission to the bar in 1830 he 
 became Mr. Austen's partner. In 1835 he associated himself with John 
 T. Hudson, and in 1837 he organized the law firm of Barker, Hawley 
 & Sill, with Seth C. Hawley and Seth E. Sill, which in 1839, by the 
 retirement of Mr. Hawley, became Barker & Sill. Mr. Barker enjoyed 
 a high reputation at the bar of western New York, and his career gave 
 promise of great distinction when it was suddenly cut short by death. 
 He was active in politics as a democratic orator and leader. He served 
 in the assembly in 1836, was nominated for . congress in 1837 but de- 
 clined, was a candidate for mayor of Buffalo in 1840, being defeated by 
 only ten votes, and was chosen attorney-general of the state in 1843. 
 As a lawyer his strength was mainly as an advocate before a jury. 
 
 AELOW, S. L. M. (born in Granville, Massachusetts, in 1829 ; 
 died in Glen Cove, Long Island, July 10, 1889), was one of 
 the leading railroad lawyers of New York. The firm of 
 Bowdoin, Larocque & Barlow was formed in 1852. After- 
 ward Judge Shipman and Judge Choate joined it. Mr. Barlow took 
 an active and memorable part in the litigation over the Erie road as 
 counsel for the corporation, and it was said that his conduct of the 
 case cost Jay Gould some nine millions of dollars. His own fees in the 
 case aggregated $250,000. He collected a very valuable library of 
 early American history, and was a writer on historical and other sub- 
 jects. With Henry Harrison he edited " Notes on Columbus." 
 
 ABNABD, DANIEL DEWEY (born in Sheffield, Massa- 
 chusetts, July 16, 1797 ; died in Albany, New York, April 24 
 1861), was graduated at Williams College in 1818 and ad- 
 mitted to the bar in 1821. He established himself in Eoch- 
 ester, and was elected district-attorney of Monroe county in 1826 and 
 a member of congress in 1827. Bemoving to Albany he served in the 
 state legislature, and was again sent to congress (1839-45). He repre- 
 sented the United States as minister to Prussia from 1850 to 1853. He 
 was an able speaker and writer on the questions of the times. 
 
256 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 EACH, WILLIAM AUGUSTUS (born in Saratoga Springs, 
 New York, December 9, 1809 ; died in Tarry town, New York, 
 June 28, 1884), was the son of Miles Beach, a prominent and 
 wealthy merchant of Saratoga, and Cynthia Warren, sister 
 of Judge Warren, a woman of rare intellectual endowments. He 
 attended Partridge's military school at Norwich, Vermont ; his scho- 
 lastic training was limited to the education he received at that institu- 
 tion. He entered upon the study of the law in the office of his uncle, 
 Judge Warren, and was admitted to the bar at Saratoga in August, 
 1833. Gifted with remarkable oratorical abilities, he immediately 
 sprang into prominence as a jury pleader, and, possessing also the 
 substantial qualities of thoroughness and conscientious attention to 
 detail in the preparation and prosecution of his cases, his reputation 
 as one of the most consummate lawyers of the day steadily grew. He 
 was elected district-attorney of Saratoga county in 1843 and continued 
 in that position until 1847. He never afterward held public office. 
 About 1851' he removed to Troy, where he remained until 1870. Here 
 he was associated with Job Pierson and Levi Smith in the firm of 
 Pierson, Beach & Smith, which after the death of Mr. Pierson was 
 changed to Beach & Smith. In Troy he was retained by the promi- 
 nent railroad corporations having interests in that city. He was the 
 leading counsel for the plaintiff in the celebrated Albany bridge case, 
 brought to prevent the construction of a bridge over the Hudson river. 
 He appeared in almost every important jury case tried during his 
 residence in Troy ; defended Canal Commissioner Dorn and secured 
 his acquittal ; was associated with James T. Brady in the defence of 
 General Cole, charged with the murder of L. Harris Hitchcock ; at the 
 request of Governor Seymour defended Colonel North, charged before 
 a military tribunal at Washington with frauds in connection with the 
 forwarding of the votes of the soldiers of the State of New York in 
 the presidential election of 1864, and was one of the counsel for Com- 
 modore Yanderbilt in the famous " Five Million suit." 
 
 In 1870 Mr. Beach, at the solicitation of Honorable Charles A. 
 Rapallo, went to New York to take the place in the latter's law firm 
 made vacant by his election to the bench of the Court of Appeals. The 
 reorganized firm received the name of Beach & Brown. Associated 
 with Mr. Beach were his son, Miles Beach, and Augustus C. Brown. 
 In the metropolis he was engaged in many of the great cases tried from 
 1870 until his death. He continued and completed the railway litiga- 
 tions of Commodore Vanderbilt ; was counsel for W. H. Vanderbilt 
 in the will contest ; represented the plaintiff in the Brinkly divorce 
 case ; was the leading counsel of Judge Barnard in the impeachment 
 proceedings brought against him ; was associated with Judge Fullerton 
 in the defence of Edward S. Stokes, charged with the murder of James 
 Fisk ; was the leading counsel for Theodore Tilton in his suit against 
 Henry Ward Beecher ; was the leading counsel for the executors of 
 
HISTORY OF THE BENCH AND BAK OE NEW YORK 
 
 257 
 
 Alexander T. Stewart, for the plaintiff in the Compton divorce case and 
 for the plaintiff in the Marie Garrison suit ; and was associated with 
 Charles O'Conor in the defence of Frank Walworth, tried for the 
 murder of his father. 
 
 Mr. Beach, although a democrat, never took any part in politics 
 and even refused to make political speeches. His entire energies were 
 devoted to the active practice of the law. He was very careless of his 
 posthumous reputation, never writing out his speeches. His eminence 
 was essentially as a jury lawyer, combining in a remarkable manner all 
 the qualities requisite for success in that field. Yet to his brilliancy 
 he added the solid virtues, and he was highly effective also in the 
 argument of questions of law before the appellate tribunals. 
 
 A YARD, NICHOLAS (born in ALphen, Holland, about 1644 ; 
 died in New York City in 1707), was a nephew of Governor 
 Stuyvesant, and was brought to America by his widowed 
 mother (Stuyvesant's sister) in 1647. His father, Samuel 
 Bayard, fled from France to escape religious persecution, and died in 
 Holland. His mother, who was an accomplished woman, gave him a 
 good education. He was made clerk of the com- 
 mon council in 1664, and afterward was Stuyve- 
 sant's secretary and surveyor of the province. 
 He filled the office of secretary of the province 
 under the Dutch government after 1672. In 1685, 
 under the administration of the English governor 
 Dongan, he was mayor of New York. He pos- 
 sessed legal knowledge, and the Dongan charter 
 ' was framed by him. He took a leading part in 
 the opposition to the Leisler faction, and was 
 instrumental in procuring the adoption of a law 
 (1691) defining it as treason for a person to endeavor by force of arms 
 "or otherwise" to disturb the peace, good, and quiet of the king's 
 government. He consequently incurred the bitter enmity of the Leis- 
 lerians, and later was arraigned for high treason under this very act." 
 Chief- Justice Attwood, before whom he was tried, was in accord with 
 the Leisler party, and sentenced him to death, but a change in the ad- 
 ministration of the colony saved his life and caused Attwood to flee. 
 The judicial proceedings by which he had been condemned were an- 
 nulled, and his property and dignities were restored to him. 1 
 
 EATABD AKMS. 
 
 EARDSLEY, LEVI (born in Hoosic, Rensselaer county, 
 New York, November 13, 1785 ; died in New York, March 19, 
 1857), was a grandnephew of Reverend John Beardsley, a 
 prominent loyalist of the Revolution. He was admitted to 
 the bar in 1812, He was a member of the assembly in 1825, which 
 
 > gee pp. 81-82 of this volume. 
 
258 HISTORY OF THE BENCH AND BAR OF NEW YOBK 
 
 passed the first railway charter in the United States, and was chosen 
 to the state senate in 1829 and 1834, becoming its president in 1838. 
 As a state legislator he favored liberal measures. He served for a long 
 period as judge of the Court of Errors of New York. He published 
 his legal opinions and a volume of " Reminiscences " (New York, 1852). 
 
 EARDSLEY, SAMUEL (born in Hoosic, Rensselaer county, 
 New York, February 6, 1790 ; died in Utica, May 7, 1860), a 
 brother of the preceding, was a farmer's son, and was brought 
 up in Otsego county. By self study and wide reading he 
 overcame the disadvantages of very limited educational opportunities. 
 He taught school, and, desiring to enter the medical profession, com- 
 menced its study with Doctor White in Cooperstown. Here his atten- 
 tion was soon attracted to the contests in the legal forum, and he 
 decided to adopt the profession of the law, placing himself, at the age 
 of eighteen, under the direction of Joseph Hathaway at Rome. In 
 1813 he enlisted in the army, in which he served for a year, advancing 
 to the rank of lieutenant. At the expiration of his term of enlistment 
 he resumed his studies, and in 1815 was admitted to the bar at Albany 
 and soon after engaged in practice as a partner of his preceptor. He 
 at once displayed exceptional qualities of energy and ability, and ad- 
 vanced with rapidity to prominence. In 1821 he was appointed district 
 attorney of Oneida county, and he retained that office until 1825, when 
 he was succeeded by Hiram Denio, afterward judge of the Court of 
 Appeals. Meantime (1822) he was elected to the state senate, and 
 although he was the youngest member of that body he took a leading 
 part in its deliberations, greatly distinguishing himself. While yet in 
 the senate he was appointed by President John Quincy Adams United 
 States district attorney for the northern district of New York. He 
 remained in that position until 1830, when he was elected a represent- 
 ative in congress. He was twice successively re-elected. In the house 
 he was one of the most conspicuous men of the day, served on the 
 judiciary committee, and was an uncompromising and effective sup- 
 porter of President Jackson, delivering a very notable speech on the 
 currency question during the United States Bank excitement. In 
 1834 Governor Marcy appointed him judge of the 5th New York cir- 
 cuit, and the appointment was confirmed by the state senate, but, at 
 the personal solicitation of the president,, he declined the place and 
 continued in the house of representatives. In 1836 he was appointed 
 attorney-general of the state to succeed Greene C. Bronson. He 
 returned to his legal practice at the end of his term in 1838. Again 
 chosen to congress in 1842 he resigned in 1844 upon being elevated by 
 Governor Wright to the bench of the Supreme Court as successor to 
 Judge Esek Cowen. He occupied that seat until the old Supreme 
 Court, under the operation ' of the new constitution, passed out of 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 259 
 
 existence, and upon the retirement of Chief-Justice Bronson in 1847 
 he succeeded to his office, filling the chief -justiceship until January 1, 
 1848. Thus he was the last chief-justice of the state in the distin- 
 guished line which began with the selection of John Jay, May 8, 1777. 
 After leaving the bench Judge Beardsley resumed the private practice 
 of the profession, in which he continued uninterruptedly until • his 
 death. During this period of twelve years he acted as counsel in many 
 of the most important cases in the Court of Appeals. He still retained 
 his interest and influence in politics, and in the democratic national 
 convention of 1856 was instrumental in bringing about the nomination 
 of Buchanan for the presidency. 
 
 Although Judge Beardsley's career on the bench was comparatively 
 brief, and his life was largely devoted to political affairs and the rou- 
 tine duties of public prosecutor, he ranks with the most celebrated of 
 New York jurists. Judge Ruf us W. Peckham said of him : 
 
 Judge Beardsley knew men and the springs of human action ; he was able to 
 inspire them with a portion of the same spirit that fired his own bosom. He had 
 really more of the General Jackson in him than any of the public men that sur- 
 vived the old hero. Eminent as he was in ability, he was not less distinguished for 
 
 the high-toned manly integrity that characterized every act of his life The 
 
 late Joshua A. Spencer, who had practiced law in the same town with him for a 
 quarter of a century, in alluding tp the chivalrous integrity of Judge Beardsley, 
 observed to me that he never felt called upon to examine with much care bills of 
 exception or amendment from him, as he knew they were always prepared'with 
 a scrupulous regard- for the truth of the case, as it occurred on the trial. 
 
 j|EEBE, WILLIAM R. (born in Chatham, Columbia county, 
 New York, in 1816 ; killed on the railroad at Evona, New 
 Jersey, May 22, 1884), studied law in the office of Burr & Ben- 
 edict, New York City, and became a partner in that firm 
 upon his admission to the bar. In 1845 he formed a business associa- 
 tion with Charles Donohue. The firm was styled, successively, Beebe, 
 Donohue & Cochran, Beebe, Donohue & Betts, and Beebe, Dean & 
 Donohue. Mr. Beebe was the first person to hold office as city judge 
 after the creation of the court in 1850, and the first city judge elected 
 to the Court of Sessions. He was on the bench for four years from 
 1851. Retiring, he devoted himself for the rest of his life almost ex- 
 clusively to admiralty cases. 
 
 SjENEDICT, ERASTUS CORNELIUS (born in Branford, Con- 
 |i necticut, March 19, 1800 ; died in New York City, October 22, 
 1880), was the son of Reverend Joel T. Benedict, who, com- 
 ing to New York from Connecticut, filled pastorates at New 
 Windsor, Franklin and Chatham. Erastus, graduating at Williams 
 College in 1821, was engaged in educational work for three years after, 
 
260 * HISTOKY OF THE BENCH AND BAB OF NEW YORK 
 
 meantime studying law. He was admitted to the bar in 1824, and 
 soon after was appointed to a deputy clerkship in the United States 
 District Court for southern New York. In this position he became 
 especially interested in admiralty law, which led him, after engaging 
 in active practice, to give his attention mainly to that branch of his 
 profession ; and throughout his life he stood at the front rank of ad- 
 miralty lawyers. His firm, originally Burr & Benedict, afterward 
 Burr, Benedict & Beebe, early took a leading place among the law 
 firms of the city. 
 
 Mr. Benedict's career was active and useful in varied respects. He 
 delivered many addresses on scientific and historical subjects, and pub- 
 lished, among other writings, "American Admiralty " (1850), "A Run 
 through Europe" (1860), and "The Hymn of Hildebert and Other 
 Mediaeval Hymns" (1861). He was for thirteen' years a member of the 
 board of education, and its president until his resignation in 1863 ; 
 served in the assembly in 1848 and 1864, and in the senate in 1872 ; 
 was a trustee of Williams College and regent of the University of the 
 State of New York, becoming chancellor of the latter institution in 
 1878 ; was governor of the New York State Woman's Hospital from 
 its incorporation and took a warm interest in charitable work ; and 
 was a prominent member of the New York Historical Society and the 
 Union League Club. 
 
 ENSON, EGBERT (born in New York City. June 21, 1746;, 
 died in Jamaica, Long Island, August 24, 1833), was an active 
 patriot of the Revolution and one of the most eminent Ameri- 
 can jurists of his time, distinguished equally for eloquence at 
 the bar and for legal learning. He Was graduated at Kings College in 
 1765 and soon became prominent in public affairs. He was a member 
 of the revolutionary committee of public safety, and upon the organi- 
 /i f/fz zation of the state government in 1777 was chosen 
 
 fatz-^/Sftz^^ the first attorney-general (serving until 1789), and 
 O was elected the same year to the first state legis- 
 
 lature. He was one of the foremost champions of the federal consti- 
 tution, and led the legislature in 1788 in the advocacy of its accep- 
 tance. He was a member of the continental congress from 1784 to 
 1788 and took an active part in the deliberations of the 1st and 2d 
 congresses of the United States. From 1794 to 1802 he was judge of 
 the Supreme Court of the State of New York, and subsequently for a 
 time sat on the federal bench as a circuit judge. He was a regent of 
 the "New York University from 1789 to 1802, and in 1808 he received the 
 degree of LL.D. from Harvard and in 1811 from Dartmouth. In 1813 
 he was again elected to congress, retiring in 1815. He was the first 
 president of the New York Historical Society. As an author, he wrote 
 "Vindication of the Captors of Major Andre" (1817), and "Memoir on 
 Dutch Names of Places" (1835). 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 201 
 
 1ETTS, SAMUEL ROSSITER. See Vol. ii. 
 
 ETTS, WILLIAM (born in Bechsgrove, St. Croix, West Indies, 
 January 28, 1802 ; died in Jamaica, Long Island, July 5, 
 1884), was graduated from Columbia College in 1820, and 
 studied law with David B. Ogden and afterward with his 
 father-in-law, Beverley Robinson. He was a trustee of Columbia Col- 
 lege and of the College of Physicians and Surgeons ; was a professor 
 of law in Columbia (1848-54), and served some of the old and large 
 corporations of New York as their counsel. 
 
 ID WELL, MARSHALL S., was born in New England in 1798 
 and died in New York City, October 24, 1872. His early life 
 was spent in Canada, where, while still a young man, he had 
 not only won prominence in the profession of the law, but 
 had entered political life and gained distinction in the Canadian 
 parliament. He was returned several times from Kingston and 
 Toronto, and for two terms was speaker of the house. His "attitude as 
 leader of the liberal party became so pronounced during the rebellion 
 of 1837 that the government ordered him to leave Canada. Removing 
 to New York City he renewed the practice of law, appearing almost 
 exclusively in the higher courts, and he was soon recognized as among 
 the ablest men at the bar. At the time of his death he was at the 
 head of one of the oldest savings banks of the city, a director in the 
 American Bible Society, and a prominent member of the New York 
 Historical Society. One of the last addresses he made was before the 
 latter society just previously to his death. 
 
 IRDSEYE, VICTORY (born in Cornwall, Connecticut, Decem- 
 ber 25, 1782 ; died inPompey, New York, September 17, 1853), 
 was the son of Reverend Nathan Birdseye, a prominent con- 
 gregational divine, who lived to the remarkable age of one 
 hundred and three and one-half years. He was graduated from Williams 
 College in 1804, studied law with Gideon Tomlinson and Cornelius 
 Allen, of Lansingburgh, New York, and was admitted as an attorney 
 in 1807 and as counsel in 1810. He commenced practice in Pompey, 
 New York. He held numerous public offices : was a justice of the 
 peace for four years, commissioner of insolvency (1811), member of 
 the 14th and 27th congresses, delegate to the constitutional con- 
 vention of 1821, member of the assembly in 1823, 183S and 1840, 
 member of the state senate in 1827 and 1828, taking a prominent part 
 
262 HISTORY OP THE BENCH AND BAR OF NEW YORK 
 
 in the perfecting and enactment of the revised statutes, master of 
 chancery from 1818 to 1822, and district-attorney of Onondaga county 
 for about fifteen years from 1818. In 1830 he was a special counsel, in 
 the place of John C. Spencer, resigned, to prosecute the persons ac- 
 cused of the abduction and murder of William Morgan. Of the four 
 thousand judgments rendered by Mr. Birdseye as a justice of the peace, 
 only four were subsequently reviewed in the higher courts, and all of 
 these four were affirmed. It is also noteworthy that as district- 
 attorney of Onondaga county for fifteen years he drafted and tried 
 every indictment found, and not a single one of these indictments was 
 quashed or found defective on demurrer. 
 
 IXBY, JOHN MUNSON (born in Fairfield, Connecticut, 
 February, 1800 ; died in New York City, November 22, 1876), 
 after receiving his preparation for the bar at Wilkesbarre, 
 Pennsylvania, came to New York and was engaged in suc- 
 cessful practice until 1849, when he retired. He invested at an early 
 period in city real estate and left a fortune estimated at $1,800,000. 
 He married a cousin of Edgar Allan Poe, and was the author of two 
 novels under the pseudonym of E. Grayson. 
 
 LATCHFORD, RICHARD MILFORD (born in Stratford, 
 Connecticut, April 23, 1798 ; died in Newport, Rhode Island, 
 September 3, 1875), was graduated at Union College in 1818, 
 admitted to the bar, and entered upon professional practice 
 in New York, where he made rapid progress to distinction. He be- 
 came a specialist in banking law, and was successively financial agent 
 and counsel for the Bank of England and the Bank of the United 
 States, settling the affairs between the two institutions upon the ex- 
 piration of the latter's charter in 1836. A personal friend of Daniel 
 Webster, he was one of the executors of his will. For many years he 
 was one of the very prominent and well-known citizens of New York. 
 He was one of the leading members of the union defence committee at 
 the outbreak of the war, and, by President Lincoln's appointment, was 
 associated with John A. Dix and George Opdyke on the committee 
 having in charge the disbursement of appropriations for obtaining 
 soldiers for the army. He was minister-resident to the States of the 
 Church in 1862 and 1863, commissioner of Central Park from 1859 to 
 1870, and afterward a member of the commission of public parks. 
 
 LATCHFORD, SAMUEL (born in New York City, March 9, 
 1820 ; died in Newport, Rhode Island, July 7, 1893), was a 
 son of Honorable Richard M. Blatchford and Julia Ann Mum- 
 ford, a noted belle in Knickerbocker society. Though his 
 father was a man of wealth, he manifested from boyhood a strong pref- 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 263 
 
 erence for active pursuits, and throughout life he was a hard worker in 
 his profession and in his judicial employments. He was graduated 
 from Columbia College in 1837, and in 1 839 became private secretary to 
 Governor Seward. He was also military secretary on the governor's 
 staff. During this period he studied law. He was admitted to the bar 
 in 1842. In 1845, having been admitted a counsellor of the Supreme 
 Court, he removed to Auburn and entered into copartnership with W. 
 H. Seward and Christopher Morgan, almost immediately taking a high 
 rank at the bar of the midland circuits. He manifested a lively in- 
 terest in the exciting politics of the Tyler and Van Buren period, but 
 having little inclination for active political pursuits he avoided joining 
 his personal fortunes to party concerns. Desirous of enlarging his 
 professional field he returned to New York City in 1854 and established, 
 with Clarence A. Seward and Burr W. - Griswold, the firm of Blatch- 
 ford, Seward & Griswold, with which his father also was indentified as 
 the jurisconsult of the office. This firm soon became conspicuous in 
 commercial and legal circles, taking a leading place in practice before 
 the United States District and Circuit courts. The experience thus 
 obtained by Mr. Blatchford in the continuous exercise of professional 
 duties of the first importance gave him a peculiar training for the 
 judicial functions which he was destined to discharge with such dis- 
 tinguished ability. 
 
 In May, 1867, he was appointed district judge of the United States 
 Court for the southern district of New York as successor to the re- 
 nowned Samuel R. Betts. He fully maintained the standards of that 
 court which had been established by his illustrious predecessor. In 
 all the intricate departments of jurisprudence with which he had to 
 deal — marine law, marine insurance, patent law, admiralty law, inter- 
 state law, etc. — his decisions enjoy the highest authority and display 
 the most perfect understanding of the principles involved. From the 
 District Court he was promoted in 1878 to be federal circuit judge, and 
 in March, 1882, he was appointed by President Arthur associate-justice 
 of the Supreme Court of the United States. 
 
 Judge Blatchford's career on the local federal bench won for him 
 an enduring reputation as one of the greatest, if not the very greatest, 
 of American admiralty judges. Among the celebrated arguments 
 heard by him were those on the letters patent for insulating telegraph 
 and cable wires with gutta-percha, and as to whether a common carrier 
 knowingly carrying an infringing patent article for purposes of ulti- 
 mate sale could be made liable as a wrong-doer. He settled the legal 
 status of the proposed Brooklyn Bridge as a structure to be built over 
 navigable waters. On the Supreme Court bench the most elaborate 
 opinion rendered by him was in the case of the Pennsylvania Eailroad 
 Company vs. Miller, holding that the company was bound by a new 
 provision of a new state constitution that imposed fresh burdens not 
 contemplated by its charter, and that a company's right of exemption 
 
264 
 
 HIST0EY OF THE BENCH AND BA li OP NEW YOEK 
 
 from future legislation, in order to hold good, must be expressed in 
 the original charter. 
 
 Judge Blatchford, during his long service on the bench in New 
 York, enjoyed the highest respect, and indeed the affection, of the 
 entire profession. He was sometimes called the Chesterfield of the 
 bench, because of the exceeding grace and courtesy of his judicial 
 bearing and his scrupulous observance of all the amenities. 
 
 LEECKER, HARMANUS (born in Albany, New York, Octo- 
 ber 19, 1779; died there July 19, 1849), was admitted to the bar 
 in his native city and for many years practiced law there in 
 partnership with Theodore Sedgwick. He served in congress 
 from 1811 to 1813 as a federalist and took a strong stand in opposition 
 to the war of 1812. He was charge d'affaires at the Hague from 1839 
 to 1842. He held the office of regent of the University of the State of 
 New York from 1822 to 1834. 
 
 LUNT, JOSEPH (born in Newburyport, Massachusetts, Feb- 
 ruary, 1792 ; died in New York City, June 16, 1860), was a 
 son of Edmund March Blunt, a celebrated nautical author 
 and publisher. He was a prominent whig and protectionist 
 and one of the first organizers of the republican party, being the au- 
 thor of the original resolutions of the state convention at Saratoga in 
 1854. He was appointed commissioner to China by President Fillmore, 
 but declined. President Lincoln appointed him United States district 
 attorney for New York shortly before his death. He was a prominent 
 writer on political and historical subjects. 
 
 fOARDMAN, ANDREW (born in Lancashire, England, in 
 1813 ; died in New York City, May 11, 1881), came to this 
 country in his youth and entered upon the practice of medi- 
 cine, which he abandoned for the law. He was for many 
 years associated with Jesse W. Benedict in the firm of Benedict & 
 Boardman, which afterward was changed to Boardman & Boardman. 
 His practice was chiefly in will cases, and he had a large business. 
 
 OARDMAN, DOUGLAS (born in Covert, Seneca county, New 
 York, October 31, 1822 ; died in Sheldrake, New York, Sep- 
 tember 5, 1891), was graduated from Yale College in 1842, ad- 
 mitted to the bar in 1845. and settled in what was then the vil- 
 lage of Ithaca, where he was soon in the enjoyment of a very successful 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 265 
 
 practice. He was elected district attorney of Tompkins county in 
 1848, and from 1852 to 1855 was county judge. In 18H6 he became a 
 member of the Supreme Court, and he sat on the bench of that tribu- 
 nal until 1887, when he refused a renomination. He then accepted the 
 position of dean of the law school of Cornell University, which he 
 tilled until his death. 
 
 fOGARDUS, ROBERT (born in 1771 ; died in New York 
 City, September 12, 1841), was one of the eminent lawyers of 
 the first part of this century. He practiced in New York City. 
 He was a colonel of infantry in the war of 1812, and was a 
 member of the state senate. 
 
 OSWORTH, JOSEPH SOLLACE (born March 27, 1807, 
 at Cortland, New York ; died in New York City, May 21 
 1884), was graduated from Hamilton College with honor in 
 1826, admitted to the bar in 1830, and practiced in Bingham- 
 ton until 1836, during part of which time he was district-attorney of 
 Broome county. He was also an examiner and master in chancery by 
 the appointment of Governor Marcy. Removing to New York City 
 in 1836 he soon became actively and prominently engaged in the 
 courts. He was elected to the assembly in 1843 and was for several 
 years a member of the city board of education. He was elected judge of 
 the Superior Court of the City of New York in November, 1851, and 
 re-elected in 1857. From 1858 until his retirement in 1864 he was 
 chief-justice of the court, and during the same period he was its re- 
 porter, publishing several volumes of Superior Court reports known 
 as Bosworth's Reports. In 1863 he was defeated for re election by the 
 narrow margin of 26 votes, John H. McCunn becoming his successor. 
 Upon leaving the bench he was appointed a police commissioner ; in 
 1869 he was made president of the police board. In 1872 he retired 
 from public life, and from that time until his death he acted as referee 
 in civil cases, generally by selection of the litigants, and in that ca- 
 pacity decided more cases than any other member of the profession. 
 
 He was one of the founders of the Association of the Bar. While 
 in active practice Murray Hoffman and John Graham were his part- 
 ners, and his associates on the bench were Judges Duer, Oakley, and 
 Woodruff. He was an ideal judge, highly conscientious, pure, and 
 always animated by a strict sense of duty to the public. 
 
 OWDOIN, GEORGE R. J. (born in November, 1809; 
 died in London, England, March 14, 1870), was gradu- 
 ated West Point and was on General Winfield Scott's staff 
 as aide-de-camp for several years. He afterward practiced 
 law in the City of New York, ranking high in the profession and enjoy- 
 
266 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 ing a lucrative business, as the head of the firm, Bowdoin, Larocque & 
 Barlow, his associates being Joseph Larocque and S. L. M. Barlow. 
 
 
 OWMAN, FRANCIS CASWELL (born in New York City, 
 December 26, 18H1 ; died there October 29, 1884), was grad- 
 uated at Brown University in 1852 and engaged in the prac- 
 tice of the law in New York. He led a successful profes- 
 sional career, but gave much of his attention to literary work and 
 music. He was an accomplished writer on musical subjects. During 
 the war he was instrumental in the organization of the United States 
 sanitary commission at Washington. 
 
 RADFORD, ALEXANDER WARPIELD (born in Albany, 
 New York, in 1815 ; died in New York City November 5, 
 1867), was a son of John M. Bradford, D.D., of Albany. 
 He was a graduate of Union College (1832), and after his ad- 
 mission to the bar advanced rapidly in reputation for ability and learn- 
 ing. He served three terms as surrogate, was a member of the com- 
 mission to codify the laws of the state, and was prominently connected 
 with many cases of importance. His decisions as surrogate in will 
 contests were especially noteworthy. He published four volumes of 
 "Reports of Surrogates' Cases" and six volumes of "Bradford's 
 Reports " (a standard authority), edited a work on " American Antiq- 
 uities," and was associated with Doctor Anthon in editing the Protestant 
 Churchman. 
 
 JRADY, JAMES TOPHAM (born in New York City, April 9, 
 1815 ; died there February 9, 1869), was the second son of 
 Thomas S. Brady, 1 a lawyer of ability, under whose direction 
 he received his education and his preparation for the legal 
 profession. At the age of twenty-one, having been admitted to the 
 bar, he began practice on his own account in New York. Almost im- 
 mediately he became conspicuous as an advocate. His services were 
 engaged in behalf Of Sarah Coppin, an orphaned English girl, who, 
 upon her arrival in New York, had been robbed, and, as a destitute 
 person, barred out by the authorities. The brilliant ability with which 
 he advocated her cause, obtaining her release, attracted great attention. 
 He was speedily recognized as one of the foremost criminal lawyers of 
 the times, and was constantly engaged as counsel in the most import- 
 ant cases. He united to magnetic eloquence a remarkable skill and 
 
 1 Thomas S. Brady was born in Ireland, was admitted three sons. The eldest, Thomas, was fitted for the law, 
 
 to the New York bar in 1826, and was a justice of the but being appointed into the "United States marine 
 
 peace and an alderman. He was a master of languages, corps, he lived and died an officer of the navy, 
 and Cardinal McCloskey was one of his pupils. He had 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 267 
 
 tact in the management of his cases, unexcelled capacities in the cross- 
 examination of witnesses, and the utmost lucidity in marshalling facts. 
 He was thus considered almost irresistible before a jury. But although 
 his reputation was essentially as a jury lawyer in the trial of criminal 
 actions, he was also one of the eminent leaders of the bar in civil suits, 
 " winning verdicts from judges and jurors alike in great patent cases, 
 like that of Goodyear vs. Day ; cases involving questions of medical 
 jurisprudence, like the Allaire and Parish will cases, and the moral 
 insanity plea in the case of the forger Huntington or the homicide 
 Cole ; divorce cases, like that of Mrs. Edwin Forrest." 
 
 He was appointed district-attorney of New York in 1843, serving 
 for a brief period, and afterward was corporation counsel. He refused 
 all political preferment except in the line of his profession, but in 1860 
 consented to stand as candidate for governor on the Breckinridge dem- 
 ocratic ticket. Though he was an intense state-rights man before the 
 war, he gave prompt and hearty support to the union cause and the war 
 measures of the federal government. He was a member of the com- 
 mission appointed to inquire into the administration of the department 
 of the gulf under Generals Butler and Banks. He had refined literary 
 tastes, contributed to the old Knickerbocker Magazine, and published 
 a story, " A Christmas Dream.'' He was one of the most generous sup- 
 porters of the library of the New York Law Institute. 
 
 RADY, JOHN RIKER (born in New York City in 1821 ; 
 died there March 16, 1891),, was the younger brother of the 
 preceding. Admitted to the bar in 1842, he went into part- 
 nership with his brother in the firm of Brady, Maurice & 
 Brady, which became Brady & Brady upon the retirement of Mr. 
 Maurice. He was elected judge of the Court of Common Pleas in 1855, 
 and until his death, a period of thirty-five years, he served uninterrupt- 
 edly on the bench. He was re-elected to the Common Pleas judgeship 
 in 1869, receiving the support of all political parties, although at that 
 time non-partisan judicial nominations were not much in vogue. Before 
 the expiration of his second term he was elected a justice of the Supreme 
 Court, and he was re-elected in 1877, again receiving a unanimous vote. 
 On the Supreme bench he became presiding justice of the New York 
 general term. 
 
 As a judge for so many years of the New York bench, John R. 
 Brady has left an illustrious name. His decisions are uniformly 
 marked by a high ability. He was of an impulsive and very genial 
 temperament, differing quite radically from his brother, who was self- 
 controlled. He married a sister of the wife of Judge Charles P. Daly. 
 
268 HISTORY OF THE BENCH AND BAB OF NEW YORK 
 
 RONSON, GREENE CARRIER (born in Oneida, New York, 
 in 1789; died in Saratoga, New York, September 3, 1863), estab- 
 lished himself in Utica and became one of the leading lawyers 
 of that city and section. He was elected surrogate of Oneida 
 county in 1819, member of the assembly in 1822, attorney -general in 
 1829 (serving seven years), and a puisne judge of the Supreme Court 
 in 1836. In 1845 he was elevated to the chief-justiceship of the Su- 
 preme Court, and in 1847 he was chosen one of the original members 
 of the new Court of Appeals. Retiring from the bench in 1851 he took 
 up his residence in New York, where, having suffered several pecun- 
 iary losses, he accepted the position of collector of the port (1853). 
 From this place he was removed in 1854. He was the "hard-shell" 
 democratic candidate for governor in 1855. From 1860 to 1863 he was 
 corporation counsel. 
 
 The Court of Appeals, in a minute adopted on the occasion of 
 Judge Bronson's death, paid him the following tribute : 
 
 Especially in the department of judicial duty he was justly pre-eminent. His 
 opinions, both in the Supreme Court and in this court, are models of judicial excel- 
 lence. In conciseness and perspicuity of expression, in terseness and directness 
 of style, in compactness and force of logic, and in sturdy vigor of intellect, they are 
 unsurpassed. Careful and deliberate in the formation of his conclusions, he was, 
 from the very strength of his convictions, tenacious and confident of their correct- 
 ness and courageous and resolute in their expression. Firm in integrity of purpose 
 and action, hold in the denunciation and exposure of fraud, he was at the same 
 time gentle and genial in all the relations of friendship and private life. 
 
 jIRONSON, ISAAC H. (born in Rutland, New York, October 
 16, 1802 ; died in Palatka, Florida, August 13, 1855), was ad- 
 mitted to the practice of the law in 1822 and took a promi- 
 nent place at the bar in Watertown. He was elected to con- 
 gress as a democrat in 1836, but was defeated in 1838. He was then 
 appointed judge of the 5th judicial district of New York, which posi- 
 tion he left to become territorial judge of Florida, and later (1845) 
 United States district judge for the northern district of the State of 
 Florida. 
 
 ROOKE, CHARLES WALLACE (born in Philadelphia, 
 April 10, 1836 ; died in New Brighton, Staten Island, Feb- 
 ruary 7, 1897), was the son of Alexander Hamilton Brooke, a 
 sea captain in the China trade. He was graduated from the 
 University of Pennsylvania, studied law under Charles E. Lex, and 
 was admitted to the Philadelphia bar in 1858. His eloquence and 
 general legal ability won for him prompt recognition, and at the age 
 of twenty- four he was already classed with Daniel Dougherty, Benja- 
 min H. Brewster, and other leaders of the profession. During his 
 
HISTORY OF THE BENCH AND BAB OF NEW YOKK 269 
 
 residence in Philadelphia he was counsel in numerous celebrated 
 criminal cases. He was a democratic candidate for district-attorney 
 and congress, but owing to the large preponderance of the republican 
 party in Philadelphia was defeated. He came to New York in 1871, 
 and with John R. Fellows and Judge Garvin organized the law firm of 
 Garvin, Fellows & Brooke. He afterward was associated for a time 
 with Doctor W. J. O'Sullivan, the medico-legal expert. At the New 
 York bar Mr. Brooke ranked with the foremost of criminal lawyers, and 
 in his last years he was constantly before the public in cases of com- 
 manding interest. 
 
 JROUGHTON, SAMPSON SHELTON, was commissioned 
 attorney-general of the Province of New York at the same 
 time that Attwood came over as chief-justice. He was a 
 London barrister, a member of the Middle Temple, well read 
 in the law, a man of sense and integrity, and did not share the odium 
 incurred by Chief- Justice Attwood. He gave it as his opinion that the 
 addresses against the lieutenant-governor signed by Nicholas Bayard, 
 Rip Van Dam, Philip French, and Thomas Wenham were not crimi- 
 nal, and that alderman and tavern-keeper Hutchins was not in con- 
 tempt for refusing to give them up as traitors. For this act he was 
 suspended from office after a grand jury had been induced to indict 
 him for neglect of duty. 
 
 |RYAN, WILLIAM G. (born in Brighton, England, January 
 18, 1822 ; died from the results of an accident in Burlington, 
 Iowa, October 25, 1867), was the son of William Bryan, who 
 came to this country in 1830 and settled at Le Roy, Genesee 
 county, New York. The early life of William G. was passed in circum- 
 stainces of deprivation. He was admitted to the bar at Batavia, and in 
 1850 formed with General John H. Martindale the firm of Martindale & 
 Bryan. Afterward he entered into partnership with Honorable Seth 
 Wakeman in the firm of Wakeman & Bryan. During his connection 
 with General Martindale he was counsel for the Tonawanda band of 
 Seneca Indians in the litigation brought against them by the Ogden 
 Land Company, and to his efforts was due the satisfactory arrange- 
 ment with the Indians which was ultimately obtained from the United 
 States government. He was an active and earnest democrat, but never 
 held public office. He possessed many of the qualities of a great ad- 
 vocate, and his untimely death was much lamented. 
 
270 HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 URR, AARON (born February 6, 1756, at Newark, New Jer- 
 sey ; died at Port Richmond, Staten Island, September 14, 
 1836), was the only son of the Reverend Aaron Burr and 
 Esther Edwards, his wife, who was the daughter of Jonathan 
 Edwards. 1 The year after Aaron's birth his father died, and a few 
 months later both his mother and grandfather, Jonathan Edwards, 
 also died. Burr and his sister Sarah were taken by their uncle, the 
 Reverend Timothy Edwards, to his home at Elizabeth, New Jersey, and 
 were reared by him. Their father had left an estate amply sufficient 
 to educate them, and Tapping Reeve became their tutor. Reeve after- 
 ward married his pupil, Sarah Burr, and became chief-justice of the 
 Supreme Court of Connecticut. When Burr was thirteen years of age 
 he entered the sophomore class at Princeton, and he graduated at six- 
 teen. In 1773, having some notion of studying theology, he went to live in 
 Doctor Bellamy's family in Connecticut for that purpose, but left there 
 the following year because after a study of the scriptures he concluded 
 to reject them as not being inspired. He remained an infidel all his 
 life. In 1774 he went to live with his brother-in-law, Tapping Reeve, 
 at Litchfield, Connecticut, and commenced the study of law. 
 
 While there he heard of the battle of Lexington, and in 1775 went 
 to Boston and joined the American army. From that place he went 
 with Arnold in the expedition against Quebec. When at Quebec he 
 bore a message from Arnold to Montgomery at Montreal, a very peril- 
 ous thing to do. He was subsequently appointed aide to Montgomery 
 and took part in the assault on Quebec. Having some difference with 
 Arnold he left Quebec and proceeded to New York City, where he 
 joined Washington's staff, but only remained with Washington six* 
 weeks, withdrawing to join Putnam's staff. In 1777 Washington pro- 
 moted him to the rank of lieutenant-colonel. His regiment was sta- 
 tioned near the village of Paramus, New Jersey, and it was there he first 
 met his future wife, Mrs. Prevost, the widow of an English colonel. In 
 1777-78 Burr with his regiment wintered at Valley Forge, and at the 
 battle of Monmouth he commanded a brigade. Between Kingsbridge 
 on the north of New York City and Dobbs Ferry there had been since 
 
 1 Aaron Burr, the father of the subject of thiB sketch, year. He was the second president of Princeton and 
 
 was born in Connecticut in 1716. He graduated at Yale was in reality its founder, as the first president was 
 
 in 1735 and was licensed to preach. When twenty-two merely a temporary one who served but a few months, 
 
 years of age lie became the pastor of the presbyterian Burr's mother, Esther Edwards, was the daughter of 
 
 church in Newark, New Jersey. He also took in pupils Jonathan Edwards, and was noted for her beauty and 
 
 for instruction in the classical languages. In 1748 he be- piety. She inherited her father's intellectuality, and her 
 
 came president of Princeton College and was such when son no doubt owed to her the inheritance of a great part 
 
 that college conferred its first degree. He was only of his talents. 
 
 thirty-two years old at that time. While he acted as the Jonathan Edwards, Burr's grandfather, was born in 
 
 president of Princeton he also retained his church and Connecticut in 1703. He graduated from Yale in 1720. 
 
 school at Newark and acted in the dual capacity of He was a tutor at Yale and afterwards became pastor of 
 
 minister and president for eight years. When he was a church at Northampton, Massachusetts. He was 
 
 thirty-seven years old he married (1752) Esther Edwards, chosen to succeed his son-in-law, Burr, as president of 
 
 who was twenty-one years old at the time. By this Princeton College, but died in 1758, the next year after 
 
 marriage he had twj children, one a daughter, Sarah, assuming the duties of his office. He wrote "Freedom 
 
 and the other Aaron. He removed his family from of the Will," and was perhaps the greatest intellectual 
 
 Newark to Princeton in 1756 and died the following force of the pre-Revc-lution period pf American history _ 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 271 
 
 the British occupied the city a reign of terror among the inhabitants, 
 both tory and whig, because of the robberies and rapines of bands 
 of freebooters, who plundered all alike. Burr was commissioned 
 by Washington to rid this territory of these miscreants. When 
 he assumed command with his headquarters at White Plains, Burr 
 devised and put in operation a systematic scheme for the protection of 
 all classes of the inhabitants, whether tory or whig. Order was soon 
 restored and outrages ceased. In March, 1779, on account of ill-health, 
 he resigned from the army. As an evidence that there were no strained 
 relations between Washington and him at that time, the letter of 
 Washington accepting the resignation is conclusive proof. Washing- 
 ton wrote that he " not only regretted the loss of a good officer, but the 
 
 BURB-HA3IILTON DUEL. 
 
 cause which made his resignation necessary." The year following his 
 resignation from the army occurred an incident which Burr related 
 many years afterward. He was visiting his fiance, Mrs. Prevost, at 
 Paramus, when Mrs. Benedict Arnold, under a military escort on her 
 way to Philadelphia after her husband's treason and flight, stopped at 
 the house. Burr in after years alleged that Mrs. Arnold then told 
 Mrs. Prevost in his presence that she had inspired her husband to his 
 treasonable acts and knew all about them. 
 
 In 1780 Burr began the study of law with a Judge Patterson of 
 New Jersey, but in the following year went to Haverstraw, New York, 
 and lived with Thomas Smith, a New York lawyer, who had been 
 driven out of practice by the military occupation of the city. Under 
 Smith Burr devoted himself diligently to studying the practice of the 
 law and its technicalities, not caring to lay the foundations for a broad 
 
272 niSTOEY OF THE BENCH 'AND BAB OF NEW YORK 
 
 juristic training. After he had been with Smith six months the legis- 
 lature of New York passed an act disqualifying all tory lawyers form 
 practicing. This Burr thought was his opportunity. He went to 
 Albany to be admitted, but was confronted with the rule that candi- 
 dates must have studied for three years before admission. With char- 
 acteristic audacity he moved his own admission and asked for a 
 suspension of the rule because his time had been spent for his country 
 in the military service. The rule was suspended and Burr was licensed 
 as an attorney, January. 19, 1782, and was admitted as counsellor in 
 April, 1782, when he was twenty-six years old. He opened an office 
 in Albany and at once acquired a large practice. A few months after 
 his admission to the bar he married Theodosia Prevost, who was ten 
 years his senior and the mother of two sons. 
 
 After his marriage he set up house-keeping in Albany on an 
 elaborate scale, and in the first year of his marriage was born his only 
 child, named Theodosia, after her mother. He practiced law in Albany 
 eighteen months, and when the British evacuated New York City in 
 1783 he removed there to practice. For the next eight years he con- 
 fined himself almost exclusively to the practice of the law. His income 
 was large, and he established himself at Kichmond Hill, which had 
 been Washington's military headquarters while in New York City. 
 There Burr and his wife entertained very lavishly, Talleyrand, Louis 
 Philippe and other distinguished persons being his guests at various 
 times. 
 
 In 1784 and 1785 he was a member of the state legislature. While 
 in the legislature he became conspicuous by opposing the incorpora- 
 tion of a mechanics' guild ; he also advocated the abolition of slavery 
 in New York. He took no part in the making or adoption of the 
 federal constitution. He declared after the constitution was adopted ' 
 that it would not last 50 years. In 1789 Governor Clinton appointed 
 him attorney-general of the state, although he had, in conjunction 
 with Hamilton, opposed Clinton's re-election as governor. In 1790 the 
 attorney -general was made one of the three commissioners upon whom 
 the legislature devolved the duty of classifying and deciding upon the 
 claims of individuals for services rendered and losses sustained in the 
 revolutionary war. Burr drew up a report which was accepted by 
 the legislature. The principles upon which claims were allowed or 
 rejected as stated in the report were made the bases of all future set- 
 tlements with revolutionary creditors. 
 
 In 1791 he was elected over Philip Schuyler to represent New 
 York in the United States senate. He was but thirty-five years old at* 
 the time. As a senator he acted with the republican (anti-federalist) 
 party. While he was a senator his wife died, in 1794. Also while he 
 was in the senate he received thirty electoral votes in the electoral col- 
 lege that chose John Adams president. After he retired from the 
 United States senate he was immediately elected to the state legisla- 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 273 
 
 ture. In 1800 he and Jefferson each had seventy-three electoral votes 
 for president. The House of Representatives chose Jefferson president 
 and Burr vice-president. About this time his daughter was married to 
 Joseph Alston, of South Carolina, who subsequently became governor 
 of that state. In 1801, while Burr was vice-president-elect, he was 
 chosen to preside over a convention called to make certain amendments 
 to the state constitution. When he came to preside over the United 
 States senate as vice-president his conduct was the essence of dignity 
 and courtesy. He exhibited his fairness on one occasion when there 
 was a tie vote by voting against the republican party and in favor of 
 the federalists on a motion to refer a matter to a committee. While 
 he was vice-president his mem- 
 orable duel with Alexander Ham- 
 ilton occurred. On the 11th. of 
 July, 1804, Burr -mortally wound- 
 ed Hamilton at Weehawken. 
 Hamilton died from the effects 
 of the wound, and Burr also may 
 be said to have died socially and 
 politically. After the duel he 
 escaped first to Philadelphia and 
 then to South Carolina, where his 
 daughter lived. He was indicted 
 in both New York and New Jer- 
 sey, but the indictments were 
 never pressed and he was never 
 prosecuted. He returned to 
 Washington and presided over 
 the senate during the winter of 
 1804-5. 
 
 After his term as vice-president 
 had expired he turned his atten- 
 tion to Mexico, and in consequence was indicted for treason, the indict- 
 ment alleging that he intended to wrest some of the territory of the 
 United States from them, and that he had committed an overt act of 
 treason by arming and setting on foot an expedition which was pre- 
 pared to make war on the United States. He was brought to trial at 
 Richmond, Virginia, before Chief-Justice Marshall and was acquitted. 
 After his acquittal he went to Europe, where he stayed until 1812, in 
 which year he returned to New York City and resumed the practice of 
 law. His daughter, who sailed from Charleston, South Carolina, in 
 December, 1812, for New York, was lost at sea, the boat never reaching 
 land. A few years before Burr died he married Madame Jumel, but 
 he lived with her only a short while. 
 
 Burr was in no sense a great jurist. His success at the bar was as 
 an attorney as contra-distinguished from a barrister. He particularly 
 
 THEODOSIA BURR. 
 
274 HISTORY OF THE bench and bar of NEW YORK 
 
 shone at nisi prius ; the logical atmosphere of the appellate court 
 was not congenial to his taste. His forte lay in the preparation of a 
 case for trial. He neglected no opportunity, however small, to insure 
 success to his client. While his great rival Hamilton was studying a 
 case from the standpoint of scientific principles, Burr was planning how 
 he could get evidence to support a fact he thought would be material. 
 His favorite maxim was "Law is whatever is boldly asserted and plausi- 
 bly maintained." He was a consummate verdict-getter, but this was 
 not due to his eloquence — for he always addressed the jury in a con- 
 versational tone, — but to his winning manners and his familiarity with 
 the details of his case. As a nisi prius lawyer he may be termed the 
 " Scarlett of the American bar." 
 
 USTEED, RICHARD (born in Cavan, Ireland, February 1 6, 
 1822), was the son of George Washington Busteed, a Dublin 
 barrister, who emigrated to Canada and thence to the United 
 States. Richard Busteed was admitted to the bar in 1846 
 and engaged in successful practice. His connection with several im- 
 portant extradition cases contributed much to his reputation. He was 
 corporation counsel of New York from 1857 to 1859. Though an in- 
 tense Douglas democrat, he warmly supported President Lincoln and 
 the union cause after the firing on Sumter. He was appointed 
 brigadier- general of volunteers, and resigned in 1863. In the same 
 year he was appointed United States district judge for Alabama. In 
 this office, which he assumed in the fall of 1865, he rendered a notable 
 decision, maintaining that the test oath prescribed by congress was 
 unconstitutional so far as it applied to attorneys practicing before United 
 States courts. This decision became a precedent and was supported by 
 the Supreme Court. Much attention was attracted by the action of 
 Judge Busteed in matters involving suspension of the habeas corpus 
 act, in which he was in conflict with the military authorities. He re- 
 signed in 1874 and returned to New York, resuming the practice of 
 the law. 
 
 UTLER, BENJAMIN FRANKLIN ^born at Kinderhook 
 Landing, New York, December 14, 1795 ; died in Paris, 
 France, November 8, 1858), was descended from an original 
 Irish stock combined with that of the early puritans by the 
 marriage of his ancestor, Jonathan Butler, with Temperance Bucking- 
 ham, a daughter of one of the first settlers of Connecticut. His father, 
 Medad Butler, emigrated from Connecticut in 1787 to the banks of the 
 Hudson. He served in the state legislature, and for many years was 
 county judge of Columbia county. 
 
 Benjamin F. Butler was the eldest of a family of six children. 
 He attended school in his native town, under capable instructors, and 
 
HISTORY OF THE BENCH AND BAB OE NEW YOKK 275 
 
 as a lad acquired a decided fondness for reading, and especially for 
 the classics. In 1811 he entered the law office, at Hudson, of Martin 
 Van Buren, who was an intimate friend of his father. He was an in- 
 mate of Mr. Van Buren's family until his marriage, in 1818, and became 
 his law partner in Albany upon his admission to the bar (1817). In 
 1821 he was appointed district-attorney of Albany county. He resigned 
 this office in 1825 to devote himself to the great work of revising the 
 statutes of the state. 
 
 By an act passed November 27, 1824, he had been appointed a 
 member of the revision commission, the other original members being 
 Chancellor James Kent and Erastus Root, then lieutenant-governor. 
 The act required that the work should be completed in two years, and 
 it provided that each of the revisers should receive $1,000 for his 
 services. Chancellor Kent declined to serve, and John Duer was 
 appointed in his stead. Mr. Butler and Mr. Duer were from the outset 
 in hearty accord as to the principles and methods to be pursued in 
 their undertaking. They advanced the proposition that the time 
 had come when the whole written law might be comprised under 
 appropriate titles, classified in natural order and arranged, as to each 
 of its branches, in a clear and scientific method ; and, while conceding 
 the novelty and difficulty of the project, declared their readiness to 
 undertake it. " We propose to do nothing more," they said, " than to 
 free our written code from the prolixities, uncertainties, and confusion 
 incident to the style and manner in which it has hitherto been framed, 
 and to apply to the elucidation of this branch of the noblest of all sci- 
 . ences those principles of an enlarged philosophy which now obtain in 
 every other department of knowledge." General Root was riot in 
 agreement with his ardent young associates in their bold plan. He 
 accordingly retired from the commission, and Henry Wheaton was 
 appointed to take his place. Mr. Wheaton contributed comparatively 
 little to the active labors of the commission, and resigned in March, 
 1827, to accept a diplomatic position abroad. He was succeeded by 
 John C. Spencer. Mr. Duer soon afterward withdrew, having been 
 appointed United States district-attorney at New York City by Pres- 
 ident Adams. The work was completed by Mr. Butler and Mr. Spen- 
 cer, and the entire body of the revised statutes was enacted by the 
 legislature, December 10, 1828. 
 
 Mr. Butler was, therefore, the only one of the revisers who served 
 from the beginning to the end. It is not detracting from his able asso- 
 ciates to say that he bore, in a peculiar manner, the burden of this 
 great task. The original general plan of the revision was prepared by 
 him, and by far the larger part of the entire revision was his indi- 
 vidual work. For his conscientious and long-continued labors- 
 extending through four complete years, including the time devoted 
 to the publication of the statutes— he received from the state only 
 $7,600. 
 
276 HISTOKY OF THE BENCH AND BAK OP NEW YORK 
 
 Returning to the active practice of his profession, he was con- 
 stantly employed in the most important cases, especially in the Court 
 of Errors. In 1833, upon the retirement of William L. Marcy from 
 the United States senate to become governor of New York, Mr. Van 
 Buren (then vice-president and presumptive successor to the presi- 
 dency) earnestly desired Mr. Butler to take the high office thus left 
 vacant ; but he was resolved to assume no position which would with- 
 draw him from his professional pursuits. He was afterward offered 
 by Governor Marcy a place on the bench of the Supreme Court of the 
 state, but was prevented from accepting because of the meagreness of 
 the salary. He served in 1833 on the commission selected to settle the 
 boundary line between New York and New Jersey. 
 
 Toward the close of the same year, at the urgent solicitation of 
 President Jackson, communicated to Mr. Butler by Mr. Tan Buren, 
 he accepted the cabinet office of attorney-general of the United States. 
 Upon the resignation of General Cass as secretary of war in 1836, Mr. 
 Butler, at the president's request, assumed also the duties of the war 
 department until the close of President Jackson's term. He continued 
 to serve as attorney-general during the first year and a half of Van 
 Buren's administration, and then, resigning, removed to New York 
 City and engaged in the practice of the law at the metropolitan bar. 
 It had long been a favorite project of Mr. Butler's to establish a law 
 school in connection with the University of the City of New York, 
 and he now (1838) attempted its realization, receiving the co-operation 
 of William Kent and David Graham, who, jointly with him, were pro- 
 fessors and lecturers in the new institution. Meantime, until 1841, he 
 was United States district-attorney. 
 
 He took a leading part in the democratic national convention of 
 1844 as an advocate of the nomination of Mr. Van Buren for the pres- 
 idency, delivering a powerful address against the adoption of the two- 
 thirds rule. He was offered a portfolio in the cabinet of President 
 Polk but declined, contenting himself with resuming the office of dis- 
 trict-attorney at New York, which he retained until the spring of 1848. 
 In that year he supported Mr. Van Buren's " free-soil " candidacy. 
 In 1849 he declined an appointment as one of the code commissioners 
 tendered him by Governor Fish. In the presidential campaign of 1852 
 he sustained the democratic candidates on the ground that they repre- 
 sented sound democratic doctrines and that their election under the 
 existing state of things would place the whole responsibility of the 
 government in the hands of the democratic party, which, if it should 
 then lend itself to a crusade against freedom, would- be justly over- 
 thrown. When President Pierce disappointed the expectations of the 
 northern democrats on the slavery issue, Mr. Butler promptly-severed 
 his life-long connection with the democratic organization. At a memo- 
 rable mass-meeting of citizens, held in City Hall Park, May 15, 1854, 
 he was the principal speaker, and declared himself aggressively against 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 277 
 
 all further alliance with the slave power. In this attitude he per- 
 severed to the end of his life, voting for Fremont in 1856 and taking 
 a keen interest in the Kansas struggle. 
 
 The close of his professional career was signalized by a notable 
 triumph in a famous litigation, growing out of the attempt of the 
 representatives of an insolvent speculative corporation, the North 
 American Trust and Banking Company, to defeat the claims of its 
 secured creditors, chiefly English capitalists. He was the senior coun- 
 sel for the creditors, and the Court of Appeals decided the case on all 
 points in their favor. 
 
 He died of a sudden illness while on a trip abroad, November 28, 
 1858. 
 
 Mr. Butler's character was singularly pare and noble. No name 
 in all the history of the New York bar is held by posterity in higher 
 honor than his. Notwithstanding the distinction which he attained 
 in the maturity of his career, he always regarded his connection with 
 the revision of the statutes as the distinctive work of his life ; and on 
 his tombstone in Woodlawn cemetery are inscribed the words : " A 
 Commissioner to Revise the Statutes of the State of New York." 
 
 UTLER, George B. (born in New Haven, Connecticut, in 1809 ; 
 died in New York City, April 13, 1886), was admitted to the 
 bar in New York and established a law firm with Daniel 
 Lord. At the organization of the Hudson River Railroad 
 Company he was its secretary and counsel, and for twenty-five years he 
 was the legal adviser to A. T. Stewart & Co. He was one of the 
 founders and editors of the Journal of Commerce. 
 
 mpfADY, DANIEL (born in Chatham, New York, April 29, 1773 ; 
 W€\4 died in Johnstown, New York, October 31, 1859), was admit- 
 Sflll ted to the bar in 1795 and practiced in Johnstown ; was a 
 '" ' ' member of the legislature from' 1810 to 1813 and a federalist 
 
 member of congress from 1814 to 1817, and served as justice of the 
 
 state Supreme Court from 1847 to 1855. 
 
 A.TNES, GEORGE (born in 1771 ; died in Catskill, New York, 
 July 10, 1825), was prominent among the early legal writers, 
 and for a long period was official reporter of the Supreme 
 Court of New York. His important works are : " Lex Mer- 
 catoria "Americana " (1802), " Cases in the Court of Errors " (2 vols., 
 1805-7), " Forms of the New York Supreme Court" (1808), " Summary 
 of the Practice in the New York Supreme Court " (1808), " Cases in 
 the Court for the Trial of Impeachments," etc. (2 vols., 1805-7), and 
 "New York Supreme Court Reports" (3 vols., 1803-5 ; 2d ed., 1852). 
 
278 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 f AMPBBLL, WILLIAM W. (born in Cherry Valley, Otsego 
 county, New York, June 10, 1806 ; died there September 7, 
 1881), was graduated from Union College in 1827 and studied 
 law under the direction of Chancellor Kent. Removing to 
 New York he entered upon legal practice in 1831. In 1841 he was ap- 
 pointed master in chancery, and in 1842 commissioner of bankruptcy 
 for the southern district of New York. He served a term in congress 
 (1845-47) as a representative of the national American party, during 
 which he took a prominent part in effecting reform in the con- 
 sular service. From 1849 to 1855 he was a justice of the Superior Court 
 of New York City, serving contemporaneously with Duer and John L. 
 Mason. He was a justice of the Supreme Court for the 6th judicial 
 district from 1 85 7 to 1 865. 
 
 He was the first judge who held, under the statute enlarging 
 the legal rights of married women, that a man could convey real 
 estate directly to his wife without the intervention of a trustee. He 
 was the author of several historical and biographical works : " Annals 
 of Tryon County, or the Border Warfare of New York" (1831, repub- 
 lished in 1849 and 1880), "Life and Writings of De Witt Clinton" 
 (1849), "Memoirs of Mrs. Grant, Missionary to Persia" (1840), and 
 " Sketches of Robin Hood and Captain Kidd " (1853). 
 
 HAMBERS, JOHN (born about 1710 ; died in New York, 
 April 10, 1765), was a member of the executive council in 
 1754 and one of the commissioners to the Albany congress 
 in June of that year. He was eminent as a lawyer and was 
 associated in the famous Zenger case. He was appointed associate- 
 judge of the Supreme Court in 1757 and became chief -justice. 
 
 HAPMAN, ORLOW W. (born in Ellington, Connecticut, in 
 1832 ; died in Washington, D. C, January 19, 189o), was grad- 
 uated from Union College, and for a number of years was 
 a professor of languages. In 1856 he began the s'tudy of 
 the law with Robert Parker, and in 1858 he entered upon the prac- 
 tice in Binghamton. He was appointed district-attorney of Broome 
 county in 1862 and re-elected in 1865. He served in the state senate in 
 1870 and 1871. At the time of his death he was solicitor-general of the 
 department of justice. 
 
 w^pgHATFIELD, LEVI 15. (born in Otsego county, New York, 
 March 5, 1808 ; died in Elizabeth, New Jersey, August 4, 
 1884), was admitted to the bar and began practice in Lau- 
 rens, New York. He was elected to the assembly as a demo- 
 crat in 1838 and became its speaker in 1842. In 1847 he was elected 
 attorney-general, and he was re-elected in 1851. He resigned the office 
 
HISTORY OF THE BENCH AND BAK OF NEW YORK 279 
 
 in 1853 to accept the position of president of the Atlantic & Pacific 
 Railroad Company, from which he retired in 1861, resuming the prac- 
 tice of the law. He was a professor in the law department of the Uni- 
 versity of the City of New York. He was eminent at the bar, having 
 charge of many important cases. 
 
 ^jHURCH, SANFORD ELTAS (born in Milford, Otsego county, 
 New York, April 18, 1815 ; died in Albion, New York, May 
 14, 1880), after receiving an academic education fitted himself 
 for the profession of the law, and began its practice in 
 Albion. He very soon attained an excellent reputation as a prac- 
 titioner. From early life he was active also in politics, giving his 
 support to the principles of the democratic party. In 1842 he became 
 a member of the assembly from Orleans county. In 1846-47 he was 
 district-attorney of the county, from 1851 to 1855 lieutenant-governor, 
 and in 1858 and 1859 comptroller of the state. In 1862 he was a candi- 
 date for congress, but was not elected, and in the next year he was de- 
 feated as a candidate for comptroller. He was a delegate to the con- 
 stitutional convention of 1867, being chairman of its committee on 
 finance. The reorganization of the Court of Appeals effected under 
 the judiciary amendment of this convention provided that the court 
 should in future consist of a chief-judge and six associates, each to 
 hold office for fourteen years. Mr. Church was chosen chief -judge of 
 the new Court of Appeals (1870), and filled that office with great dis- 
 tinction until his death. The opinions delivered by him from that 
 bench belong to the first order of judicial literature, being especially 
 marked by solid qualities. Judge Church's personality was in all 
 respects of the highest. As a public man, although the purely political 
 offices filled by him were comparatively subordinate, he ranks with the 
 very distinguished sons of the state. In his latter years he was con- 
 sidered one of the most available men of the democratic party for the 
 presidency of the United States. 
 
 LINTON; DE WITT (born in Little Britain, New Windsor, 
 Orange county, New York, March 2, 1769 ; died in Albany, 
 New York, February 11, 1828), was a son of General James 
 Clinton of the Revolution. 1 He was graduated at Columbia 
 College in 1786, and studied law under the direction of Samuel Jones, 
 
 1 James Clinton distinguished himself in the French member of the state legislature and as a member of the 
 
 and Indian war, and early in the Revolution was ap- convention that framed the national constitution. He 
 
 pointed brigadier-general. He was conspicuous in was born August 9, 1736, and died December 22, 1812. 
 several exploits and expeditions, and commanded at His father, Charles Clinton, ancestor of the Clinton 
 
 Albany during a considerable part of the wap. After family (born in county Langford, Ireland, in 1690 ; died 
 
 the establishment of peace he became prominent in in Orange county, New York, November 19, 1773), was 
 
 public life, serving as a commissioner to adjust the a farmer and land surveyor, and served as justice of the 
 
 boundary between New York and Pennsylvania, as a peace, county judge and lieutenant-colonel of militia. 
 
280 
 
 HISTORY OF THE BENCH AND BAB OE NEW YOEK 
 
 being admitted to the bar in 1788. Naturally adapted for public em- 
 ployments, he enjoyed unusual opportunities for engaging successfully 
 in politics. He wrote for the press a series of letters on the newly- 
 adopted national constitution from the anti-federalist point of view, 
 and in 1790 he became private secretary to Governor George Clinton, 
 his uncle. While in this position he held other important offices. In 
 
 1797 he was a member of the lower house of the legislature, and from 
 
 1798 to 1802 of the senate. As a senator he advocated, among other 
 measures, the relief of prisoners for debt, the abolition of slavery in 
 the state, and the promotion of the use of steam in navigation. He 
 became a member of the United States senate in 1802, but soon resigned, 
 having been appointed mayor of New York City. In this office he 
 
 continued, with the exception 
 of four years, until 1815. Mean- 
 time he was state senator (1805- 
 1 1) and lieutenant - governor 
 (1811-13). In 1812 he was an 
 aspirant for the presidency, but 
 having alienated a large ele- 
 ment of his party from him by 
 his course in certain regards, 
 he failed to realize his ambition 
 and Madison was chosen. As 
 mayor of New York he dis- 
 played the greatest and most 
 intelligent public spirit, and the 
 beginning of the metropolitan 
 character of the city dates from 
 his regime. He was identified 
 from the beginning with the 
 Erie canal enterprise, and the 
 ultimate construction of the canal was due mainly to his efforts. In 
 consequence of his activity in this popular cause he was elected gov- 
 ernor in 1817 by a non-partisan vote. He was re-elected in 1819. 
 Disapproving some of the amendments to the constitution adopted 
 by the convention of 1821, he declined to be again a candidate. His 
 enemies in 1821 caused him to be displaced from his position of canal 
 commissioner. This act aroused public resentment and led to his 
 re r election as governor in 1824 by the large majority of 16,000. The 
 canal was formally opened in the next year, and in 1826 he was again 
 chosen governor. He died before the expiration of his term. 
 
 De Witt Clinton's attainments were those of the broadest states- 
 manship, sustained by a thorough mastery of the science of the law. 
 
 DB WITT CLINTON. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 281 
 
 |||| LINTON, GEORGE (born in Little Britain, Ulster county, 
 Mi New York, July 26, 1739 ; died in Washington, District of 
 Columbia, April 20, 1812), was the fourth son of Charles 
 J Clinton and the uncle of De Witt Clinton. As a youth he 
 saw service in the French and Indian war. He studied law in the office 
 of William Smith, a renowned colonial lawyer. As a member of the 
 assembly in 1768 he was prominent in advocating the rights of the 
 colonies. The New York provincial convention, April 22, 1 775, elected 
 him one of the delegates to the second continental congress. In that body 
 he, with his New York colleagues, refrained from voting on the question 
 of independence, leaving that matter to be passed upon by the pro- 
 vincial congress of his state, which promptly (July 8, 1776) approved 
 the declaration of independence. He was dispatched by Washington 
 to the Highlands of New York in the same month with the rank of 
 general of militia. He was a deputy to the provincial congress of 
 1777, by which the New York state constitution was framed, but his 
 participation in its deliberations was interrupted 
 by another summons to the field, the appointment 
 of brigadier-general in the continental army hav- 
 ing been conferred on him in March. He com- 
 manded in the defence of the Highland forts in 
 October, 1777. On April 20, 1777, he was elected 
 governor, being the first to fill that office, and he 
 served in it continuously until 1795. His admin- 
 istration was characterized throughout by vigor 
 and public spirit. He was again elected governor in 1801. At the early 
 presidential elections he received votes for the presidential office. He 
 was vice-president of the United States from 1804 until his death. 
 Governor Clinton was a strong anti-federalist, and originally opposed 
 the adoption of the constitution on the ground that it gave excessive 
 power to the central government, but he acquiesced in that instru- 
 ment, and was the presiding officer of the state convention held in 1788 
 to ratify it. 
 
 He was a sound lawyer, excellently versed in the principles of the 
 law and well equipped by temperament and judgment in its practical 
 applications. 
 
 IfLINTON, GEORGE W. (born in New York City in 1807 ; 
 died in Albany, September 7, 1885), was a son of De Witt 
 Clinton. He was graduated at Hamilton College in 1829 
 and studied both medicine and law, devoting himself to the 
 practice of the latter. He was admitted to the bar in 1831 and was 
 taken into partnership by John C. Spencer, whose daughter he mar- 
 ried. In 1835 he removed to Buffalo. Here he took a leading place in 
 his profession and filled various offices. He was successively examiner 
 in chancery, collector of customs, mayor of Buffalo (1847-49), and 
 
 CLINTON ARMS. 
 
282 HISTORY OF THE BENCH AND BAR OF NEW YOKE 
 
 judge of the Superior Court of Buffalo for twenty-three years from 
 1854, being its chief -justice during the last seven years of his service. 
 He was a delegate to the constitutional convention of 1867, serving as 
 chairman of the committee on canals. He was for a long time a mem- 
 ber of the board of regents of the state university. 
 
 Mr. Clinton was an eminent scholar and rendered a valuable ser- 
 vice to the state by editing the vast collection of papers in the state 
 library at Albany relating to the public career of George Clinton 
 
 fOCHRANE, CLARK B. (born in New Boston, New Hamp- 
 shire, in 1817 ; died in Albany, New York, March 5, 1867), 
 was graduated at Union College and admitted to the bar. 
 He took an active part in politics as a democrat, was chosen 
 to the assembly from Montgomery county in 1844, afterwards affiliated 
 with the " barnburner " faction, opposed the Kansas-Nebraska bill, and 
 then joined the republicans, being elected to congress in 1856 and 1858 
 from the Schenectady district. In 1865 he was again elected to the 
 state legislature. He was a lawyer and legislator of ability, and was 
 styled " The Great Pacificator " because of his tact in soothing passion- 
 ate debate. 
 
 UODDINGTON, DAVID SMITH (born in New York City in 
 1823 ; died in Saratoga, New York, September 2, 1865), was a 
 son of John I. Coddington, postmaster of New York under 
 President Jackson, and a lineal descendant of one of the old- 
 est families of the country, whose ancestor was William Coddington, 
 founder, judge, and first governor of Rhode Island. He was graduated 
 from Union College and studied law in the offices of George W. Strong 
 and Slosson & Schell, being admitted to the bar at the age of twenty- 
 one. As a youth he displayed fine oratorical talents, and he became 
 one of the most eloquent lawyers and political speakers of his time. 
 Devoted to the democratic party, he did not, however, approve the 
 policies of the extreme leaders of that organization. He was prominent 
 in the free -soil democracy, and gave hearty support to the govern- 
 ment in the war. He was elected to the legislature in 1861. At the 
 meeting of the war democracy at Cooper Union, November 1, 1864, he 
 delivered a memorable address. 
 
 A brother of Mr. Coddington's, Jefferson Coddington, was a suc- 
 cessful practitioner, devoting himself to office practice and to the man- 
 agement as trustee of several very large estates. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 283 
 
 IJOGSWELL, WILLIAM JOHNSON (born at New Preston, 
 Connecticut, November 4, 1Y99 ; died at the residence of his 
 daughter, Mrs. Canfield, in New York City, March 7, 1885), 
 was the son of Colonel William Cogswell and Amaryllis 
 Johnson, a grandson of Major William Cogswell of the revolutionary 
 army, and lineally descended from John Cogswell, who emigrated from 
 Westbury, England, to Ipswich, Massachusetts, in 1634. Obtaining 
 his early education in the local schools, Mr. Cogswell attended Yale 
 College until the close of his sophomore year, when the death of his 
 father forced him to devote himself to the care of the family. He 
 taught school, kept a store, and tried farming, while at the same time 
 studying law. 
 
 Admitted to the bar at Albany, New York, he began practice at 
 Poughkeepsie, but removing to New York City in 1831 formed a part- 
 nership with Philip S. Crooke. In 1834 he settled at Jamaica, Queens 
 county, New York, where he continued to reside until a few years pre- 
 vious to his death. 
 
 Soon after removing to Jamaica his attention was directed to ques- 
 tions relating to trusts, construction of wills, and the law of real prop- 
 erty, and his practice was largely in these directions. In 1849 he was 
 appointed county judge and surrogate of Queens county to succeed 
 Judge Hagner, deceased. In 1853 he also opened a law office in 
 Brooklyn, in association with Honorable William Rockwell, and after 
 the elevation of the latter to the Supreme Court formed a partnership 
 with George Vandeverg, which continued until Mr. Vandeverg's death, 
 in 1859. Judge Cogswell retired from active practice in 1875, although 
 he argued his last case in the Supreme Court in 1880, when more than 
 eighty years old. 
 
 He was early recognized as a leader of the bar in Queens county, and 
 after his removal to Brooklyn, by his success in such important inter- 
 ests as the Terhune and Fleet trusts, the Cornell and Udall will con- 
 tests, and other notable cases, took rank with the leading lawyers of 
 his day in those burdens of the profession. He was not quick at form- 
 ing conclusions, but a diligent student and painstaking investigator, 
 and when by such mature deliberation he arrived at a judgment, he was 
 seldom mistaken. He was a man of broad views ; charitably inclined, 
 being ever ready to relieve distress or give encouragement ; not a self- 
 seeker, though active in politics and general affairs. He ran for con- 
 gress on the whig ticket, but was defeated. He early joined the repub- 
 lican party, and earnestly supported the government during the civil 
 war. Two of his sons went to the front, one of them, George E., dying 
 in the service. 
 
 For many years Judge Cogswell was president of the village of 
 Jamaica. He was also president of the board of trustees of Union 
 Hill Academy. He was an active churchman, and the erection of the 
 diocese of Long Island was largely due to his efforts. 
 
284 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 fOLDEN, CADWALLADER DAVID (born in Springhill, 
 near Flushing, Long Island, April 4, 1769 ; died in Jersey 
 City, February 7, 1834), was a grandson of Cadwallader 
 Colden, royal lieutenant-governor of New York during the 
 stamp act excitement, and an eminent physician and scientific scholar. 
 He completed his education in England, returned to the United States 
 and was admitted to the bar in New York in 1791. Later he practiced 
 for a while in Poughkeepsie, but he soon resumed his residence in 
 New York and became one of the most prominent lawyers and citizens. 
 He was the recognized leader of the bar in commer- 
 cial law. He was appointed district-attorney in 
 " 1810, was a member of the legislature in 1818, and in 
 
 the same year suc- 
 ^aJHj^ou^&^J^y^ fi^W^-rv, ceeded De Witt Clin- 
 ton as mayor, and 
 from 1824 to 1827 was a state senator. Notwith- 
 standing his tory ancestry, he was a strong patriot, 
 and in the war of 1812 was colonel of a regiment of 
 volunteers. He cordially seconded De Witt Clinton's 
 schemes of internal improvements, took a warm interest in educational 
 subjects, and for a long period was a governor of the New York Hos- 
 pital. He was an intimate friend of Robert Fulton and published his 
 life (1817), to which he added a " Vindication of the Steamboat Right 
 Granted by the State of New York " (1819). He also wrote a " Memoir 
 of the Celebration of the Completion of the New York Canals " (1825). 
 
 COLDEN ARMS. 
 
 HlpOLE, SETH BEACH (born in Prattsburg, Steuben county, 
 New York, December 25, 1820 ; died in Nyack, New York, 
 February 1, 1895), was graduated at Union College in 1846, 
 and was principal of Franklin Academy in Prattsburg for 
 nine years. He was active in politics, representing Steuben county in 
 the legislature (1855-56) and taking a warm interest in the work of the 
 Kansas aid committee, for which he raised $40,000. He removed to 
 Brooklyn and was admitted to the bar in 1855. From there he 
 removed to Nyack in 1867. He served as a county judge of Rockland 
 county. 
 
 JOLLIER, JOHN A. (born in Broome county, New York, in 
 1787 ; died in Binghamton, New York, March 24, 1873), was 
 one of the original commissioners on the code. He was a 
 prominent lawyer in Binghamton, was a member of con- 
 gress (1831-33), and was state comptroller (1845-46). 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 285 
 
 g^JOMSTOCK, GEORGE FRANKLIN (born in Williamstown, 
 m@$ M Oswego county, New York, August 24, 1811; died in Syracuse, 
 gUJI* September 27, 1892), was the son of Serajah Comstock, a 
 ^^^^ revolutionary soldier. Hie was graduated from Union Col- 
 lege with high honors in 1834, and immediately entered the law office 
 of Noxon & Leavenworth. Admitted to the bar in 1837, he started in 
 practice at Syracuse and advanced rapidly in reputation. In 1847 he 
 was appointed by Governor Young reporter for the Court of Appeals, 
 a position which he retained for three years, at the same time con- 
 tinuing in active practice. In this period he published the first four 
 volumes of the New York Reports. In 1852 President Fillmore made 
 him solicitor of the treasury of the United States. In 1855 he was 
 elected associate-judge of the Court of Appeals, occupying that bench 
 for six years, during two of which he was its chief-justice. His opin- 
 ions are contained in the thirteenth to the twenty-fourth volumes of 
 the New York Reports. One of the most celebrated of them is his 
 opinion in 1856 annulling the prohibitory liquor law, which was finally 
 acquiesced in by a divided bench. His opinion in Curtis et al., vs. 
 Leavitt, maintaining the validity of the obligations of the North 
 American Trust and Banking Company, amounting to $1,500,000, held 
 by British creditors, fills one hundred and twenty-five pages of the 
 thirteenth volume of the reports. 
 
 Judge Comstock was a strong partisan of the democratic party, 
 and this caused his defeat when he became a candidate for re-election 
 to the Court of Appeals in 1861. Except as delegate for the state-at- 
 large to the constitutional convention of 1867, his subsequent career- 
 was devoted to his private practice. He framed, with the co-opera- 
 tion of Honorable Charles J. Folger, the judiciary article of the pro- 
 posed new constitution, which was the only part of that instrument 
 ratified by the people. The distinction he had gained on the bench 
 brought him many cases involving the most important legal principles 
 and the largest interests. With William M. Evarts he was counsel 
 for William H. Vanderbilt in defending his father's will. His later 
 professional work appertained specially to landed and trust estates. 
 
 He initiated the movement to establish the University of Syracuse, 
 and donated a large amount of money to that institution. He was one 
 of the founders of Saint John's School for boys, to which he gave 
 $50,000, and he was a trustee of the State Asylum at Syracuse. 
 
 ||||5|ONKLING, ALFRED (born in Amagansett, Suffolk county, 
 Wi§m New York, October 12, 1789 ; died in Utica, February 5, 
 W$M\ 1874), was graduated at Union College in 1810 and admit- 
 : ""'"'' ' ted to the bar in 1812. He served as district-attorney of 
 Montgomery county, as an anti-Jackson democratic member of congress 
 (1821-23), as judge of the United States District Court for northern 
 
286 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 New York (1825-52), and as minister to Mexico. He remained in 
 Mexico for only a year, and upon his return gave his attention chiefly 
 to literary pursuits. He published " Treatise on the Organization and 
 Jurisdiction of the Supreme, Circuit, and District Courts of the United 
 States" (2d ed., 1842), "Admiralty Jurisdiction" (2 vols., 1848), "The 
 Powers of the Executive Department of the United States " (1866), and 
 " The Young Citizen's Manual." 
 
 ONKLING, ROSCOE (born in Albany, October 30, 1829 ; died 
 in New York City, April 18, 1888), was a son of Honorable 
 Alfred Conkling. He inherited his father's high ability and 
 aggressive, resolute and persistent character. He did not 
 enjoy the advantages of a university education, but he pursued a course 
 of academic studies, supplemented by a wide range of general reading. 
 At the age of fifteen he entered the law office of Spencer & Kernan in 
 Utica. The members of this firm were Joshua A. Spencer and Francis 
 Kernan. Immediately after his admission to the bar, at the age of 
 twenty- one, he was appointed by the governor district-attorney of 
 Oneida county, to fill a vacancy. He filled this office with conspicuous 
 ability and was nominated by his party for election for a full term, but 
 was defeated. He then for a number of years devoted himself exclu- 
 sively to professional business, and rose to an eminent place at the bar. 
 He distinguished himself especially in the conduct of trials, and was 
 known as one of the most skillful cross-examiners and one of the most 
 powerful advocates before a jury. He also was noted for his careful 
 study of the principles of the law bearing on his cases ; and it was one 
 of his remarkable traits that this learning in the law obtained in his 
 early years was always preserved by a retentive memory, notwithstand- 
 ing the distractions incident to a long career in pursuits removed from 
 the routine of the courts. 
 
 After filling the office of mayor of Utica for two terms, he entered 
 the lower house of congress in December, 1859, as a republican mem- 
 ber. From that time until 1881 he was mainly engrossed in public 
 affairs, although during the recesses of congress he appeared from 
 time to time in special cases. He continued to serve in the house of 
 representatives (excepting for one term) until he was chosen to the 
 senate in 1867, and he remained in that body until 1881, when he 
 resigned, and, coming to New York City, practiced at the bar until 
 his death. 
 
 Mr. Conkling was one of the most noteworthy public men of the 
 last half century. The course of momentous political history was 
 largely shaped by his individuality. In the house of representatives 
 he was a strong supporter of the war measures. In the senate he was 
 prominently identified with the framing and the enactment of much 
 of the important legislation of the memorable period from 1867 to 
 
V 
 
 HISTORY OF THE BENCH AND BAB OF NEW YORK 287 
 
 1881. He supported the southern policy of President Grant, the civil 
 rights bill, and the bill for resumption of specie payments, and took a 
 leading part in the electoral commission project of 1876-77. But it 
 was as a masterful party leader that Senator Conkling was distinctively 
 known and exercised his, most positive influence. He was the pillar of 
 the Grant administration in the legislative department of the govern- 
 ment. His feud with James G. Blaine had far-reaching political con- 
 sequences, twice preventing the nomination of Mr. Blaine for the pres- 
 idency, and, by reason of the factional division in the republican party 
 of New York which grew out of it, contributing materially to his 
 defeat by Mr. Cleveland in 1884. Mr. Conkling was himself a candi- 
 date for the republican presidential nomination in 1876, receiving 93 
 votes in the national convention. He had differences with President 
 Hayes on the question of the New York patronage, which culminated 
 in the removal by the president of Mr. Arthur as collector of the port 
 of New York. At the national convention of 1880 he led the move- 
 ment for the nomination of President Grant for a third term. Pres- 
 ident Garfield, soon after his inauguration, greatly offended Mr. Conk- 
 ling by his appointments to the New York offices, and in consequence 
 the latter, with his colleague, Senator Piatt, resigned and sought 
 re-election by the New York legislature as vindication. But the 
 legislature refused to re-elect them, and Mr. Conkling's public life was 
 at an end. 
 
 President Grant on November 8, 1 873, offered to Mr. Conkling the 
 position of chief -justice of the United States Supreme Court, and sub- 
 sequently renewed the offer, but he declined the place. He also declined 
 a tender by President Grant of the mission to England. He was offered 
 a seat on the Supreme Bench by President Arthur, but again declined. 
 
 Of Mr. Conkling's professional life in New York after his retire- 
 ment from the senate, one of his intimate friends has written as 
 follows : 
 
 The career of Mr. Conkling at this bar, and in the courts, of other states, after 
 his return from public life, was one of the most remarkable events in the annals of 
 our profession. He commenced here alone. He was, of course, at once brought 
 into competition with a numerous bar, many of whom were near his age, and who 
 had been drilled by the uninterrupted practice of their profession, in which they 
 had risen to distinction during the years in which Mr. Conkling had devoted his 
 energies to public affairs. But his success was assured from the start. He was 
 employed in a great many important cases. His clients ranked him, and rated the 
 ■value of his services, very high. It is safe to say, I think, that during those seven 
 years of his practice he received a larger professional income than was ever paid, 
 in the same length of time, to any other lawyer of this country. Something, 
 doubtless, is to be credited to personal admiration and personal devotion, but, in 
 the main, his unprecedented success was due to the fact that he was deemed by 
 those having great interests at stake to be as great a power at the bar as he had been 
 in public life. ' 
 
 His death was due to exposure in the "blizzard" of March 12, 1888. 
 
 » William D. Shipraan, memorial sketch in New York City Bar Association Report, 1890. 
 
288 
 
 HISTOKY OF THE BENCH AND BAK OF NEW YOKE 
 
 ORTLANDT, STEPHEN. See VAN CORTLANDT, STE- 
 PHANUS. 
 
 ^|OWEN, ESEK (born in Scituate near the close of the seven- 
 teenth century, died in 1844), ranked among the foremost 
 lawyers and judges of New York state. Early obtaining 
 marked recognition as a practitioner, he was appointed in 
 1823 reporter to the Supreme Court, retaining the position until 1828. 
 During the period of his service he produced seven volumes of reports. 
 In 1828 he was appointed judge of the 4th Circuit in place of Reuben 
 H. Walworth, who was made chancellor. In 1836 he became associate- 
 justice of the Supreme Court, filling the position with distinguished 
 ability until 1844. He was author of "Civil Jurisdiction of Justices of 
 the Peace," and, in connection with Nicholas Hill, of "Notes to 
 Phillips' Evidence," a standard book of reference on that branch of 
 the law. 
 
 OWEN, ESEK, nephew of the preceding (born in Hartford, 
 Washington county, New York, October 14, 1834), was the 
 son of Judge Solomon S. Cowen and Electra T. Bush. His 
 father was born in Scituate in 1790, moved to this state in 
 1810, and was for many years judge of the Court of Common Pleas of 
 Washington county. Esek Cowen was educated at the Troy Confer- 
 ence Academy, West Poultney, Vermont, graduating in 1852. Follow- 
 ing the profession of his father he entered the office of B. F. Agen, of 
 Granville, afterward the office of Hill, Cagger & Porter, completing his 
 preparatory studies at the Albany Law School. He was admitted in 
 1855, opened an office at Troy, soon after removed to Saratoga, and ten 
 years later returned to Troy, practicing five years alone, after which 
 he entered the firm of Smith, Cowen & Fursman, of Troy, and as 
 counsel for the New York Central & Hudson, River Railroad, the 
 Citizens' Steamboat Company, and several local corporations of Troy, 
 became especially prominent in his profession. 
 
 ^RUGER, DANIEL (born in Sunbury, Pennsylvania, December 
 22, 1780 ; died in Wheeling, West Virginia, June 5, 1843), 
 was descended from a German ancestry, his father having 
 emigrated to Pennsylvania from the Duchy of Holstein in 
 1768. He was apprenticed to a printer in Albany, New York, and 
 after learning his trade removed to Owego and started the Owego 
 Democrat, the first newspaper published in that part of the state. ' In 
 1804 he entered the office of General S. S. Haight in Bath, New York, 
 as a student of the law, and in 1806 he was admitted to the bar, He 
 
HISTORY OF THE BENCH AND BAE OF NEW YORK 289 
 
 immediately became prominent in the profession, and within a few 
 years ranked with the leading men of the Steuben bar. He served 
 with credit for a brief time in the war of 1812, and from J 813 to 1816 
 was a member of the assembly, being chosen speaker in 1816. Mean- 
 time he was district-attorney for the 7th district. In 1816 he was 
 elected to congress. In 1815 he formed a legal copartnership with 
 William B. Rochester. In 1833 he married a Miss Shepard, of Wheeling, 
 West Virginia, and soon afterward he took up his residence in that 
 city. Mr. Cruger was one of -the most distinguished advocates of his 
 time in the western part of the state. 
 
 URTIS, GEORGE (born in Windsor, Vermont, September 19, 
 1799 ; died June 2, 1S84), was graduated at Union College in 
 1822. He entered the legal profession, and at once advanced 
 to high rank at the bar of New York City. For many 
 years he resided in Brooklyn, and he was prominent in the affairs of 
 that city. In his younger years, as a member of the legislature, he was 
 an able coadjutor of De Witt Clinton. He became one of the leaders 
 of the whig party, and took a keen interest in its success. He removed 
 to Schenectady in 1867 and retired from the active pursuit of his pro- 
 fession. 
 
 URTIS, GEORGE TICKNOR (born in Watertown, Massa- 
 chusetts. November 28, 1812 ; died in New York City, March 
 28, 1894), was a brother of Justice Benjamin Robbins Curtis 
 of the United States Supreme Court, and a nephew of George 
 Ticknor Curtis, of Boston, the distinguished man of letters and pro- 
 fessor of languages in Harvard. He was graduated at Harvard in 1832, 
 read law, and began practice in Boston. He soon attained great 
 prominence at the bar, his specialties being patents and constitutional 
 law. He argued the law points in the Bred Scott case before the 
 United States Supreme Court while his brother was still on the bench. 
 From his early life he was active in politics as a democrat, but in the 
 war he was an earnest unionist. He was a close personal friend of 
 Daniel Webster, and one of his literary executors, and in 1870 he pub- 
 lished a life of that great statesman. He was a prolific author. Among 
 his published works were a history of the constitution of the United 
 States, a treatise on copyrights, a book on admiralty law, " Equity and 
 Precedents," and a biography of James Buchanan. 
 
 In 1863 Mr. Curtis removed to New York. In that city he con- 
 tinued until his death in the front rank of practitioners and jurists. 
 He was counsel in many patent suits of historical importance, among 
 them the Colt revolver suits, the Goodyear rubber cases, and celebrated 
 sewing-machine litigations. He argued numerous important war claim 
 cotton cases. In 1888 he gave up his active practice, but continued to 
 
290 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 take a hearty interest in constitutional and miscellaneous questions, 
 and was a frequent contributor to the press. 
 
 Mr. Curtis never held public office, except as a justice of the peace. 
 
 A COSTA, CHAELES M. (born on the island of Saint Thom- 
 as, West Indies, May 5, 1837 ; died in New York City, June 
 22, 1890), was educated in Europe and in New York City, 
 graduating from Columbia College in 1855. He began the 
 study of the law in the office of Alexander Hamilton, Junior, was ad- 
 mitted to the bar soon after attaining his majority, and practiced for a 
 time as an assistant to Lorenzo B. Shepard. Almost at the beginning 
 of his career he was retained in an important case which took him to 
 Belgium, and the success he achieved in that employment was the 
 foundation of his reputation as an admiralty lawyer. Afterward he 
 was in partnership with Oscar Smedberg. In 1869 he took the vacant 
 place of Honorable Samuel Blatchford in the firm of Blatchford, Sew- 
 ard & Griswold, in association with Clarence A. Seward and Burr W. 
 Griswold. In this connection he became charged with the interests of 
 great banking institutions, foreign and domestic, and of railway and 
 other corporations, in litigations of gravity and magnitude. He was a 
 very accomplished scholar, took a lively interest in social and educa- 
 tional matters, and was one of the trustees of Columbia College, a lec- 
 turer in its law school, and left to the college a magnificent bequest. 
 He was an original member of the Association of the Bar. His friend, 
 Justice Edward Patterson, in a sketch of him in the " Memorial Book " 
 of the Bar Association, speaks thus of his professional characteristics : 
 
 As a lawyer Mr. Da Costa was conspicuous for his learning, sagacity and practical 
 wisdom; as an advocatehe was forcible, persuasive, andsingularlyableinthestatement 
 of a case. "While from the necessities of his large practice he kept himself well ac- 
 quainted with the current decisions of the courts, he was not a mere case lawyer. 
 He was one of those who verified the saying of Sir Thomas Browne that "he can do 
 most with books who can do much without them." His arguments were founded 
 upon a ripe knowledge of the principles and philosophy of the law, a clear insight 
 into the just relation and bearing of things, an abounding common sense and well- 
 balanced judgment ; and his methods were those of an accomplished artist. He was 
 accurate in discriminating as to precedents, and was not content to rest his case on 
 seeming resemblance of authorities. He had what is called the legal instinct. He 
 saw at once all that was involved as the essence of a cause. The keenness of his 
 mental vision was remarkable, and all that he saw fell into an orderly and method- 
 ical arrangement and was produced conscientiously, logically, and with complete- 
 ness not overburdened with superfluity or useless elaboration, and in a manner 
 plain, concise, direct, and clear as crystal. To this were added graces of style and 
 manner peculiar to himself, a soft and pleasing voice, a sunny cheerfulness, a never- 
 failing courtesy. As was said of him in another place, his presence in a cause was 
 always welcome. He had the absolute confidence of the court, and he was regarded 
 by both bench and bar as one of the ablest, most upright, and honorable of the lead- 
 ing members of the profession, 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 291 
 
 flAVENPORT, JOHN" ALFKED (born in Francestown, New 
 Hampshire, February 7, 1840 ; died in Cincinnati, Ohio, May 
 3, 1890), was descended from a distinguished New England 
 family. 1 He was graduated from Yale College in 1861, and 
 for about four years was professor of mathematics in the United States 
 Naval Academy at Newport, Rhode- Island. Afterward he made a 
 thorough study of the law at Harvard and at Heidelberg University, 
 Germany, and in 1 870 he became one of the law firm of Gray & Daven- 
 port in New York. After its dissolution by the elevation of its senior 
 member to the bench of the Court of Appeals (1888) he organized the 
 firm of Davenport, Smith & Perkins. He was regarded as one of the 
 foremost in the profession as a chamber counsel, but his sensitive na- 
 ture and feeble health prevented him from taking a prominent place 
 as an advocate. 
 
 AVIES, HENRY EBENEZER (born in Black Lake, Saint 
 Lawrence county, New York, February 8, 1895 ; died in New 
 York City, December 17, 1881), was the son of Thomas John 
 aa "" Davies and Ruth Foote, and was the fifth in descent from 
 the American ancestor, John Davies, who came to America and settled 
 in Litchfield, Connecticut, in 1735. His English ancestry goes back to 
 Robert Davies, of Gwysany Castle in the parish of Mold, Flintshire, 
 England (born 1606), a staunch loyalist, high sheriff of Flintshire, and 
 knight of the Royal Oak, who derived an unbroken descent from the 
 famed Cymric Efell, lord of Eylwys Eyle, who lived a.d. 1200, and was 
 seventh in descent from Rodic Maur. His American ancestor brought 
 him considerable possessions and soon acquired large landed interests, 
 was an ardent churchman, established the first episcopal society in 
 Litchfield, and was a leader in the affairs of the colony. Subsequently, 
 during the war of the Revolution, the political and religious faith of 
 the Davies family entailed disastrous consequences upon its members, 
 wresting from them their large holdings, and leaving both the grand- 
 father and father of Henry Ebenezer Davies entirely dependent upon 
 their own exertions. His father, meeting with business reverses, in 
 1799 removed to the shore of Black Lake, then an unbroken wilder- 
 ness, built a log cabin with a camp of Indians for his sole neighbors, 
 and commenced life over again. A thriving and populous community 
 rapidly grew about him, the point proving favorable for immigration, 
 and he soon became not only comfortably situated, but prominent in 
 the affairs of the community.' He was for ten years sheriff of Saint Law- 
 rence county and for several years served as county judge. 
 
 Such was the early environment of Henry Ebenezer Davies, fourth 
 
 8 His American ancestor was Reverend John Daven- five years, and judge of probate and of the county 
 
 port, who came to this country in 1638, and was eminent and Common Pleas courts. His great-grandfather, 
 
 in the congregational denomination of Connecticut. An- John Davenport, was a representative in congress from 
 
 other of his ancestors was Judge Abraham Davenport, a 1799 for eighteen years, 
 member of the Connecticut legislature for over twenty- 
 
292 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 child and third son. Up to fourteen years of age he followed the ordi- 
 nary pursuits of a country life full of rugged sport and farm work, 
 varied by such attendance at common school as the neighborhood per- 
 mitted. An intimate companion was a young Indian boy from whom 
 he learned much of the language and customs of that people. At the 
 age of fourteen his father placed him with the family of Judge Alfred 
 Conkling, of Canandaigua, New York, to obtain a broader education 
 than the facilities nearer home afforded, and specially to prepare him 
 for his chosen profession of the law. With Judge Conkling he not 
 only completed his preparatory legal education, but pursued substan- 
 tially the course afforded by the college of the day. Coming of age he 
 was admitted to the bar at Albany in April, 1826. He commenced 
 practice in Buffalo, then a small village on the western frontier. A 
 case involving the right of way along the river bank soon arose, which 
 gave him his initial start. The contention was between the owners of 
 uplands along Niagara river, who claimed the right to extend their 
 warehouses to the river's edge for convenience in loading and unload- 
 ing vessels, and the other inhabitants who claimed a right of way along 
 the bank. Mr. Davies, retained on the popular side, sought to estab- 
 lish the latter claim by the testimony of the older inhabitants and of 
 Indians who still remained in the vicinity. He summoned among 
 others the celebrated Seneca chief, Red Jacket. His array of testimony 
 won the jury and the case. This victory gave him immediate high pro- 
 fessional standing and made him city attorney the following year. In 
 1829 he removed to New York City, entering into partnership with his 
 uncle, Samuel A. Foote. 
 
 Among other large corporations which this firm represented was 
 the Erie Railroad Company. To the advice of Foote & Davies was due 
 largely the successful progress and completion of a work stupendous, 
 for that early period, in railroad construction. Upon the retirement 
 of his uncle from active practice in 1848 he entered into partnership 
 with Honorable William Kent, a son of the distinguished chancellor 
 and an ex-judge of the Supreme Court. In this connection he con- 
 tinued until 1853f when he formed the firm of Davies & Scudder, with 
 Mr. James C. Carter as managing clerk. When Mr. Davies became a 
 justice of the Supreme Court two years later the firm of Scudder & 
 Carter succeeded to his business. 
 
 In politics Mr. Davies was a whig, with a high reputation as a plat- 
 form orator. In 1840 he was elected assistant-alderman for the 15th 
 ward and two years later was chosen alderman. He was also at this 
 time chairman of the committee on the celebration of the introduction 
 of the Croton water into the city. 
 
 From 1850 to 1853 was a period of laborious activity for Mr. 
 Davies. He was then corporation counsel, and the enormous work in- 
 volved in the opening of new streets demanded by the rapid growth of 
 the city almost constantly occupied him. His successful defence of 
 
HISTORY OF THE BENCH AND BAR, OF NEW YORK 293 
 
 ex-Mayor Cornelius W. Lawrence in suits for recovery of damages 
 brought for blowing up buildings in the path of the disastrous fire 
 of December, 1835, to stay the conflagration, was also among his im- 
 portant professional labors during this period. Soon after, in addition 
 to his professional work, he contributed a compilation of the statutes 
 of the state relating to the City of New York and its ancient and mod- 
 ern charters at the request of the common council of New York. 
 
 In the summer of 3855 Mr. Davies made the tour of Europe in com- 
 pany with ex-President Fillmore, with whom he had formed an inti- 
 mate acquaintance in his early practice at Buffalo. On his return he 
 was elected justice of the Supreme Court, to fill the vacancy made by 
 the death of Judge R. H. Morris. His seat was contested on the 
 ground that no notice of the vacancy had been filed with the sheriff by m 
 the secretary of state. Mr. Davies was eventually confirmed in his 
 position by the Court of Appeals. During his term of office occurred 
 the celebrated murder trials of Cancemi and Burdell, at which he pro- 
 sided. He also reaffirmed in the general term the decision of Mr. Jus- 
 tice Paine in the case of Lemmon vs. the People, which maintained the 
 position that persons held in slavery became free when brought into 
 the State of New York, and in which Chester A. Arthur, then a fledg- 
 ling practitioner, was one of the counsel for the slaves. 
 
 In the panic of 1857, when the banks of New York City were 
 obliged to suspend specie payments and were in imminent peril of being 
 placed in the hands of receivers on the ground of insolvency, Judge 
 Davies called a meeting of the judges of the Supreme Court of the 1st 
 add 2d judicial districts. At this meeting it was determined that a 
 bank should be considered solvent which was able to pay all its debts, 
 although it might have suspended specie payments for a time, and that 
 when thus solvent, while its officers were acting in good faith, no re- 
 ceiver should be appointed. 1 This averted the danger and saved the 
 entire financial community from utter prostration. 
 
 In 1859 he was elected to the Court of Appeals for a term of eight 
 years, during the last two years of which he served as chief-judge. 
 Among the volumes of decisions rendered during this period may 
 briefly be mentioned Kortright vs. Cady, 2 maintaining that the tender 
 of the amount due on a mortgage destroys the lien of the instrument ; 
 the People vs. the Canal Appraisers, 3 where the subject of navigable 
 streams is elaborately and learnedly discussed and determined ; Dela- 
 field vs. Parish/ discussing testamentary capacity ; and that product 
 of great research and exhaustive study, the opinion in the case of the 
 Metropolitan Bank vs. Van Dyck, 5 which sustained the legal tender 
 acts of the general government. 
 
 At the expiration of his office Judge Davies was offered a renomi- 
 nation by both parties, which would have resulted in a unanimous 
 
 i 5 Abbott's Pr. R., 343. 3 33 New York, 461. 5 27 New York, 400. 
 
 » 21 New York, 343. 4 25 New York, 9. 
 
294 . HISTORY OF THE BENCH AND BAE OP JMEW YORK 
 
 election, but returned to the practice of law in New York City, having 
 as partners Judge Noah Davis, until the election of the latter to the 
 Supreme Court in 1872, and his son, Julien Tappan Davies. Mr. 
 Davies was counsel for the Mutual Life Insurance Company, as also for 
 other large corporations, but devoted himself mainly to chamber prac- 
 tice and to service as referee. His devotion to his profession was such 
 that up to the day before his last illness he sat for many hours as one 
 of the commissioners appointed to investigate the practicability of con- 
 structing the Broadway arcade railroad. 
 
 Judge Davies was a director of the Institution for the Instruction 
 of the Deaf and Dumb for a long period. The last year of his life he 
 acted as president. In 1870 he accepted the office of dean of the law 
 school of the University of the City of New York, which he held until 
 the time of his death. This university conferred upon him the title of 
 LL.D., as did also Amherst College. 
 
 On July 11, 1835, he married Rebecca Waldo Tappan, of Boston, 
 Massachusetts, and he was father of a large family. He died in the 
 City of New York, December 17, 1881, and left four sons' and two 
 daughters surviving him. 
 
 The tribute of one who knew him best says : 
 
 Judge Davies was conspicuous during his long and busy life for sterling integ- 
 rity and devotion to the interests committed to his charge. His capacity for labor 
 was prodigious and sustained by a constitution of iron that gave him enormous 
 powers of endurance. He was genial in manner and friendly with all men. His sole 
 pleasure was the professional one of a game of whist. Temperate, indeed almost 
 abstemious in his habits, simple in his tastes, earnest in his professional duties, the 
 two leading motives of his life were devotion to duty and love of his family. True 
 to the church of his ancestry, and following in their lead, he gave to Saint Luke's 
 church, at Matteawan, in Dutchess county, the land upon which its edifice is erected. 
 Under the shadow of its eaves he rests— wife, children, and grandchildren reposing 
 around him. The memory of his pure, strong, loving spirit is the most precious 
 heritage of his living descendants. 
 
 AYAN, Charles (born in Amsterdam, New York. July 16, 
 1792 ; died in Lowville, New York. December 25, 1877), was 
 the son of a farmer, and after receiving an elementary edu- 
 cation taught school and studied law, being admitted to 
 practice at Lowville. He was prominent among the lawyers of that 
 part of the state, and also was active in politics. He served in the 
 state senate from 1827 to 1829, becoming its president, acting lieu- 
 tenant-governor, and ex officio president of the Court of Errors. He 
 was a democratic member of congress, 1831-33, a member of the assem- 
 bly, 1835-36, and district-attorney of Lewis county, 1840-45. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 295 
 
 EAN, AMOS (born in Barnard, Vermont, February 16, 1803 ; 
 died January 26, 1868), was graduated at Union College and 
 upon his admission to the bar entered into a legal copartner- 
 ship with Azor Tabor. He gained a very distinguished repu- 
 tion equally as an advocate, a consulting lawyer, a law writer and a 
 lecturer on law and promoter of legal education. His legal works, 
 which are of high authority, include a " Manual of Law " (1838), 
 "Medical Jurisprudence" (1854), and "Bryant and Stratton's Com- 
 mercial Law." Among his other works of importance are " Lectures 
 on Phrenology " (1835), " Philosophy of Human Life " (1839) and an 
 uncompleted " History of Civilization " (7 vols., Albany, 1869-70). He 
 was the founder of the Young Men's Association of Albany, filled the 
 chair of medical jurisprudence in the Albany Medical School from its 
 organization in 1839, and was one of the original professors in the 
 Albany Law School. 
 
 EAN, GILBERT (born in Pleasant Valley, Dutchess county, 
 New York, August 14, 1819 ; died in Poughkeepsie, October 
 12, 1870), was graduated in 1841 at Yale College and was 
 admitted to the bar in Connecticut and later (1 844) in New 
 York. He practiced for a number of years in Poughkeepsie, during 
 which time he served a term in congress (1851-53). Re-elected to that 
 body, he resigned to become a justice of the Supreme Court of the 
 state by the appointment of the governor in 1854. His service on the 
 bench was brief, but during the latter part of it he acted as a judge of 
 the Court of Appeals. He retired in 1855 and removed to New York, 
 where he practiced law for the remainder of his active life. 
 
 ELAFIELD, LEWIS LIVINGSTON (born in New York City, 
 November 3, 1834 ; died there, March 28, 1883), was descended 
 from ancestors distinguished in the annals of the state and 
 the country. Among them were William Smith, judge of the 
 Province of New York ; Francis Lewis, one of the signers of the decla- 
 ration of independence ; Morgan Lewis, chief -justice and governor of 
 New York ; Chancellor Livingston, and Edward Livingston, author of 
 the code of Louisiana. He received a careful preparatory education, 
 and in 1855 was graduated from Columbia College second in his class. 
 He immediately entered upon the study of the law in the office of his 
 kinsman, Alexander Hamilton, Junior, and was admitted to the bar 
 December 18, 1857. He first practiced as a member of the firm of 
 Crane, Robinson & Delafield, but separated from it and practiced alone 
 until his death. He soon acquired a valuable practice, and became 
 specially versed in the law of real estate, of trusts and of wills, one of 
 the earlier cases in which he acted as junior counsel being the famous 
 
296 HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 Parish will case. In later years lie was the counsel of numerous large 
 corporations. In behalf of one of these, the Roosevelt Hospital, he 
 'succeeded in forever delivering the City of New York from those 
 dangerous nuisances, the abattoirs. In 1874 he was selected as 
 attorney to the United States Cable Company, and in 1879 as attorney, 
 to the French Cable Company. 
 
 Mr. Delafield was a man of high character, energetic, public spir- 
 ited, and devoted to good causes. He never accepted public office, but 
 in the last years of his life was almost constantly prominent before 
 the public. He was one of the founders of the Association of the Bar 
 of the City of New York, and took a conspicuous part in some of its 
 notable undertakings and proceedings. He co-operated heartily and 
 influentially in the anti-Tweed crusade and the movement of the Bar 
 Association for the removal of the corrupt judges. Afterward he was 
 a leader in the crusade inaugurated by the association for the reform 
 of notorious abuses in the city offices, and on its behalf delivered a 
 noteworthy address to the committee of the legislature which had in 
 charge the bill for the abolition of the fee system. He was chairman 
 of the Bar Association's committee on law reporting, and wrote the 
 exhaustive report of that committee exposing the prevalent defects in 
 law reports and suggesting a scheme for an official "council of law 
 reporting." Although the project was not adopted, the decided im- 
 provement in the, reports that have since been observable are in large 
 measure the direct result of his efforts. He was also chairman of the 
 association's committee on admissions to the bar, and to the clearness 
 and vigor with which he presented his views to the courts and the 
 legislature the adoption of reformed standards for admission was in 
 great part due. 
 
 He was earnestly interested in the cause of preventing cruelty to 
 children, and was counsel to the society organized for that purpose. 
 He conducted the prosecution of the padrone Ancorata, which 
 resulted in putting a stop to the barbarous traffic in Italian children ; 
 and he prosecuted successfully the infamous Reverend Edward 
 Cowley, of the " Shepherd's Fold." He compiled a volume of laws 
 relating to children. 
 
 E LANCEY, JAMES (born in New York City, November 27, 
 1703 ; died there, July 30, 1760), was the eldest son of Etienne 
 De Lancey, who fled from France to Holland after the revoca- 
 tion of the edict of Nantes, and in 1686 emigrated to 
 America.' He was given an excellent education by his father, being 
 
 > Etienne (Stephen) De Lancey was one of the most prominent in city and colonial affairs, and was a very 
 
 notable New Yorkers of his period. He brought with public-spirited citizen. His old house, built in 1780, 
 
 him to America a portion of the family jewels, and wilh afterward became Fraunce'B tavern, a famous resort of 
 
 the proceeds of their sale embarked in mercantile enter- the latter part of the century, in which Washington bade 
 
 prises, in which ho amassed a fortune of £100,000. He farewell to his officers. , 
 married a daughter of Stephanus Van Cortlandt, was 
 
1 G% 
 
 
 By the Honourable 
 JAM&S DE LANCE 
 
 His Majefty's Lit stenaut-Governor and Commana r in Chief, in etna 
 
 over the Province of New- York, and the Territor 
 in America. 
 
 r, Efq; 
 
 es depending^thexeon 
 
 Proclamation, 
 
 WHEREASjk appears, That certain Perfons refiding on flnear the Eaftern Borders of 
 this Provirfc, have entered into a Combination to difpoflefs Robert^mngjhn, jun. Efq; Proprietor of the 
 Manor of LsjingAon, yathin this Province,' ah&the TenanV hold£&p|ider him, of. the. Lands comprifed 
 within the aid fitenoF^tffider Pretence of Title frt#theGove*%(ei$of .th^A^JaghnjetirBay, as alfo of 
 an Indian Pirchafe fately^adehj th*la P( < t - i ( / J Mi or hath, 'til 
 
 y>-ry \mMJhccn peaceably t-^-^tmkmf^W-^ i- ttd RolfM- LLi>&Wm r $0LWfa&ffi&Q* for Seventy 
 
 Yeac bfl pitVFW%e*r« E^-yI j h. , ^^^ . ■ i initi.i n i mun iW^tefaf rtflg^fr^rri^^ o.ily l *« «*«inH*.~-l 
 
 the faid Government can legally ft nd their Claim. Notwithstanding which clear and nianlfd||{Ught on the Part of this Govern- 
 ment, the faid Perfons, not conte iwith their former Intuitions on His Majefty's Lands withiphe fame, nrft began to cany their 
 Eefigns into Execution, by endes firing to corrupt and turn Mr; Zivmgjicn's own Tenant^gainft him, in which they fo far 
 fijeceeded, that feveral Perfons, v, > 'til within a few Years held Lands as Tenants uiKkrJiud paid their Rents to him, now 
 keep Pofleffion of the Lands in Dc thee of, and fet up a pretended Right againft him, under f^ government of the Majfachufettt 
 Bay, and the aforementioned India Purchafej by which illegal Proceedings, fupportcd with 
 been obftructed, the Lives of fev. \\ of his Majefty's Subjects loft, and private Property i 
 Whereas Thirty One of fuch evil faded Perfons, in order to profecute their unjuft Defigns. 
 
 :e, the Courfe of Juftice hath. 
 
 jgeu and greatly injured. And 
 
 the 7tn Day of May laft, armed 
 
 ||t the Diftance of not more than 
 
 were Loop Holes, fired through the 
 an Hour thereafter, and another fon 
 may be to Proceeding*, the Confci 
 be productive of the worft Evils to 
 this unhappy Controverfy (hall be i 
 ifiue this Proclamation, Hereby in 
 bear and retrain from fuch violent an! 
 of the Law. And that the Offend* 
 
 ep up Peace and a good Und finding among the Borderers, till 
 w . ! ... in a legal Courfe ; I HAVE thought fit, with the A icd of His Majefty's Council, to 
 fcjjflajefty'sName, ftridtly enjoining all His Majefty's goo Subjects in thisProvinee, to. f«- 
 ynjuft Proceedings, as every Inftance of that Nature will ■punifhed with the utmoft Rigour 
 before named may be brought to Juftice, the Sheriffs of t i Counties, of MbanrwA Dulchtfs 
 
 msRetfe, Iiendrick Brtifit, Jofepb 
 i^judries J.Rteft\ and being fo 
 
 and riotoufly aflembled themfelves PTac&hanict, at the Houfe of Jonathan Darbie, which ftandl 
 Eighteen Miles from Hudfon's Riu } .among whom were the faid Jonathan Darbie, alfo Jeb\ 
 
 VengtUtr, and his Brother, faid I ? be Andr'ut Vangelder, Samuel Taylor, Ebtntz.tr Taylor, ; ^ 
 
 riotoufly aflembled, were commam j?$odifperfe bythe Deputy Sheriff of the County, in the defence of one 'of His Majefty's 
 
 Jaftkes of the Peace, two Conftabl j^jand other Perfons who came thither with the laid Robt %ivmgjhn, to fupprefs the Riot, 
 
 and difperie the Rioters ; four onlyn£whom went off, the others fhutting themfelves up in the i 4 Darby's Houfe, in which ^there 
 
 me, and before they difperfed, feveral were wounded on bo Sides, one of whom died in about 
 
 Time after, of the Wounds they then received. IN Ordi therefore to put a Stop as much as 
 
 jjices whereof have already been fatal to fome, and which M 'not timely prevented, may ft ill 
 and to eftablifh and keep 
 
 and all other Officers therein, are h< %y commanded and required to apprehend the faid J»natht 
 
 Brufu, Jeftph Vangeldtr, Samuel Tc 'r r Ebemztr Tay!or t and Andrm J* Rets, and all and cvi 
 
 appear to have been aiding or abetti 'the faid Offenders in the Riot aforefaid ; and them and cv< 
 
 committed, infafe Cuftody, in the ( iinty Goal, until delivered by due. Courfe of Law : And 
 
 keep in fife Cuftody all and every < 'ex Perfon and Perfons who (hall hereafter be guilty of ( 
 
 And all His Majefty's Subjects in t jfaid Counties of Albany and Dutchtfs^ are to give due Aflitti 
 
 xefpective Counties, who are hereby lowered and required, ifneceffary, to fummonthePoffc, ft, whole Power ofthe County, for 
 
 putting the Premifes Iri Execution. *• ' 
 
 rbie y Johannes Keep, Hendria 
 of their AfTociates, who fliali 
 of them to keep, or caufe to be 
 like Manner, to apprehend and 
 
 i riotous and illegal Practices. 
 c to the faid Sheriffs within their 
 
 GIVEN under my Han tnd Seal at Arms, at Fort-George, in the City of ] 
 June, One Tboufand S en Hundred and Fifty $etien % in the Thirtieth Year t 
 Lord GEORGE (be i -ond t by the Grate of GOD, of Great-Britain, Fund 
 
 of the Faith, and fo ft h, 
 
 By His Honour's Command, 
 
 Gw. Barrjar, Dtp. Set f- 
 
 ;W-Vork, the Eighth Day of 
 
 the Reign of our Sovereign 
 
 [and Ireland* King, Defender 
 
 JAMES BE LANCEY. 
 
 GOD Save the KI 
 
 NO. 
 
298 HISTORY OP THE BENCH AND BAR OF NEW YORK 
 
 graduated from Corpus Christi College, Cambridge, England. He 
 pursued legal studies in the Inner Temple, London, was admitted to 
 the bar, and in 1725 returned to New York. In 1729 he became a 
 member of the council. He was the chief framer of the Montgomerie 
 charter of 1730, and in recognition of his services he was presented 
 with the freedom of the city, being the * 
 
 first person to enjoy this distinction. J^v, * ,< 9fa ~£ mfey ty 
 In 1731 he received the appointment of < ^" uu > ^^c^VTUJ^U 
 judge of the Supreme Court, and two c -^ 
 
 years later (September 14, 1744) was appointed chief-justice to succeed 
 Lewis Morris, removed. In this office he continued until his death. 
 In addition to the dignity of chief -justice, he was made lieutenant- 
 governor, the king's commission bearing date October 27, 1747. But 
 having become involved in a quarrel with Governor Clinton, the latter 
 withheld the commission and urged his removal as chief-justice. The 
 home government, however, refused to comply with 
 this recommendation, and in 1753, Clinton having 
 been superseded, the commission was finally deliv- 
 ered to him and he became acting governor. He 
 presided over the deliberations of the colonial con- 
 gress of 1754 (the first general congress of the col- 
 onies), held to consider methods of common defence 
 against the French and to conciliate the Indians. 
 While acting as governor he granted the charter 
 of King's College, now Columbia College (October 31, 1754). Being 
 relieved of the duties of governor by the arrival of Sir Charles Hardy, 
 who had been appointed to that office (1755), he devoted himself for a 
 time entirely to his judicial functions, but from 1757 until his death 
 he again exercised the powers of governor. As chief-justice and 
 governor he left a high reputation for learning and ability. 
 
 Judge Charles P. Daly has written the following estimate of 
 Chief- Justice De Lancey : 1 
 
 In legal learning he was inferior to several prominent lawyers of the time, hut 
 he had remarkable natural abilities, upon which he depended, as he read but little, 
 and was very averse to writing. Upon the bench he applied himself closely to the 
 matter before him, and having a very retentive memory, acute perception and a 
 sound judgment, he was enabled to dispose of elaborate cases with great readiness, 
 and to the general satisfaction of the bar. Whatever he had read or had acquired 
 in the way of legal learning, in the course of his experience, he could produce upon 
 the instant. Having all his knowledge thus promptly at command, and with a 
 mind so constituted that it lost its force or its grasp of a subject in proportion as he 
 delayed to deliberate, he was generally ready to act at once; his first thoughts 
 being always the best, expressing himself, whether from the bench or in the halls 
 of legislation, with clearness, brevity, and point. As a political manager he was 
 intrepid, prompt and sagacious, fertile in expedients ; in critical emergencies baffling 
 his opponents, and attaining his end with consummate tact and judgment. 
 
 In public contests he was a master of the arts that win popularity, and as a 
 1 " Historical Sketch of the Judicial Tribunals of New York," p. 49. 
 
 DE LANCET ABM3. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 299 
 
 ruler, equally a master of the more difficult art of retaining it ; for though a strong 
 conservative in his politics, and generally opposed to the popular party, no man in 
 the colony ever worked himself so fully into the public confidence, or had the same 
 amount of personal influence. He is described by his contemporaries as remark- 
 able for his convivial qualities, as easy of access, assiduous in the dispatch of public 
 business and steadfast in his friendships. It is to be regretted that he marred his 
 otherwise irreproachable conduct on the bench by giving way, in political cases like 
 that of Zenger, to the feelings of a partisan ; and, involved as he was throughout 
 his long career in every political intrigue and party movement, his character, in 
 other respects, has not escaped without reproach. But he was a man of more 
 integrity than he received credit for during life; and when the government was 
 entrusted to his hands, he administered it with so much capacity, and with so single 
 an eye to the general welfare of the province, as to wring a reluctant tribute from 
 his enemies. 
 
 E LANCEY, JOHN (born in New York City about 1741 ; 
 died there in 1821), was a son of Peter De Lancey, a nephew 
 of the chief -justice and a brother of James De Lancey, the 
 celebrated loyalist colonel of the Revolution. He engaged 
 in the profession of the law and held various offices : high sheriff of 
 Westchester county in 1769 ; member of the assembly from 1768 to 
 1772, and again from 1793 to 1795, and member of the first provincial 
 council for the City of New York (1775-76). He was also a member of 
 the general committee of one hundred of May, 1776. Unlike his 
 brothers, he did not come into disfavor on account of attachment to 
 the loyalist cause. 
 
 E LANCEY, STEPHEN (born in New York City about 1740 ; 
 died in Annapolis, Nova Scotia, in 1801), was a brother of 
 the preceding. He was admitted to the bar, and in 1765 be- 
 came clerk of the city and county of Albany, then embracing 
 all the territory west of the Hudson and north of Ulster county. He 
 afterward served as recorder of the city of Albany and as a commis- 
 sioner to treat with the Indians. From the beginning of the revolu- 
 tionary troubles he was a loyalist. In 1775 he was connected with the 
 Albany committee of safety. In 1776 he was imprisoned at Hartford, 
 Connecticut, for disaffection, but was liberated soon after, when he 
 went to New York City. There he remained until the British evacua- 
 tion in 1783. Removing to Nova Scotia, he was prominent in that 
 colony, serving as a member of the council. 
 
 ELAPLAINE, ISAAC CLASON (born in New York City, 
 October 27, 1817 ; died there July 17, 1866), was a brother 
 of John Ferris Delaplaine, a well-known citizen of New 
 York, whose will, endowing a Delaplaine Institute for the 
 relief of the friendless, was the subject of a recent interesting legr.l 
 
300 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 controversy. He was graduated from Columbia College in 1834 and 
 became a successful practitioner at the New York bar. He served in 
 congress from 1861 to 1863. « 
 
 ENIO, HIRAM (born in Rome, New York, May 21, 1799 ; 
 died in Utica, November 5, 1871), was a law student in the 
 office of Judge Hathaway at Rome, and afterward in the 
 office of Storrs & White at Whitesboro. In 1821 he entered 
 into a professional copartnership with Wheeler Barnes at Rome. He 
 was appointed district-attorney of the county to succeed Samuel Beards- 
 ley, and continued in that office for a number of years, manifesting sig- 
 nal ability in the discharge of its duties. Removing to Utica, he estab- 
 lished a law firm there with E. A. Wetmore. In 1834 he was appointed 
 circuit judge for the 5th circuit. In 1836 he formed an association 
 with Ward Hunt. He was appointed a judge of the Court of 
 Appeals in 1853 to fill a vacancy, and was twice successively elected 
 to that office, retiring in 1866. Beside the positions enumerated, he 
 served as a bank commissioner and clerk of the Supreme Court, and 
 he was a trustee of Hamilton College. In politics he was a democrat, 
 in 1860 he voted for Lincoln, and during the war was in full sympathy 
 with the policy of the government. In 1868 he was stricken with 
 paralysis, from the effects of which he never recovered. 
 
 Hiram Denio belongs in the foremost rank of the eminent judges 
 of New York, and his opinions are frequently quoted. In addition to 
 great legal learning he possessed the soundest judgment. His personal 
 character was remarkably pure, benevolent, and upright. 
 
 In conjunction with William Tracy he edited an edition of the 
 revised statutes of New York (2 vols., 1852), and he published five 
 volumes of " Reports of Cases Argued and Determined in the Supreme 
 Court and in the Court for the Correction of Errors" (1845-48). 
 
 EPEYSTER, ABRAHAM (born in New York City— then 
 New Amsterdam — July 8, 1657 ; died there, August 2, 1728), 
 was a son of Johannis de Peyster, founder of the family in Amer- 
 ica. (For a sketch of the de Peyster family from Johannis down, 
 see the biography of Frederic de Peyster.) He held successively the 
 offices of alderman in 1685, mayor from 1691 to 1695, judge of the Su- 
 preme Court and chief-justice of that 
 
 tribunal in 1700, member of the king's S? i ' f -7^ , ■*, 
 
 council from 1698 to 1702, and presiding t^o*-°^r Je J^^ 
 
 officer of the council and governor of the ^y K^^ 
 
 province in 1701. He was also colonel 
 
 commanding the militia of the City and County of New York, a troop 
 consisting of one company of horse and eight companies of infantry, 
 with a total of 685 men. For twenty years from 1706 he was treasurer 
 
HISTORY OF THE BENCH A!NI> HAK 6F NEW YORK 
 
 301 
 
 of the Provinces of New York and New Jersey. He was the most 
 intimate friend of Eichard Coote, Earl of Bellomont, New York's best 
 colonial governor, and he was also a friend of William Penn, pro- 
 prietor of Pennsylvania, who in one of his letters alludes to the 
 fascination of his social qualities and humor. 
 
 He was a man of wealth and figured very prominently in the im- 
 portant events of his times. According to Martha J. 
 Lamb, the first impulse of real municipal progress 
 and improvement in New York City was due to his 
 public spirit. He personally — or in conjunction with 
 Colonel Nicholas Bayard — presented to the city the 
 site of the original city hall, at the head of Broad 
 street, where stands the present United States sub- 
 treasury building, and where Washington was inau- 
 gurated. He built the first private mansion house 
 in Queen's — now Pearl — street, opposite Cedar, to 
 which the present De Peyster street served as the carriage-way com- 
 municating with the stables. 
 
 DE PEYSTER ABMS. 
 
 E PEYSTER, FREDERIC, a man who exerted command and 
 influence through innate although not outwardly perceptible 
 winning and governing characteristics, 1 was born in New York 
 City, November 11, 1796. He was the third son of Frederic 
 de Peyster and Helen Hake. His lineage on this continent " runs back 
 for more than two and a half centuries to the dawn of Dutch dominion 
 over Manhattan ; his name descending through six generations from 
 father to son, each a leader of men in his day, and charged with civic 
 trusts when public life meant honorable fame." The founder of the 
 family in America; Johannis de Peyster, came to New Amsterdam in 
 1645. He and his wife, Cornelia Lubberts, were natives of Haarlem, 
 Holland, where the de Peysters, descendants of a Huguenot family of 
 Tours, in France, the original seat of the Hugenots, took refuge soon 
 after the massacre of St. Bartholomew, in 1572. Between 1655 and 
 1677 he held the offices of schepen, burgomaster, alderman, and deputy 
 mayor, and was one of the memorable " committee of defence," in 
 1673, to protect New Amsterdam against the English. He declined 
 the appointment of mayor under the English in 1677 because of his 
 imperfect acquaintance with English, although the first English gov- 
 ernor declared "he could make a better platform speech than any 
 other man "outside of Parliament." His son, Abraham de Peyster, 
 (born in New York, July 8, 1657), held the offices of alderman of New 
 York in 1685 ; mayor from 1691 to 1695 ; member and presiding officer 
 of the king's council: acting governor in 1701 ; chief -justice of the 
 Supreme Court in 1700 ; treasurer of the provinces of New York and New 
 
 1 Professor Dissler of Columbia College, now Uni- Pey6ter, suggested the words, Vir Awtoritalis, which 
 versify, being requested to write an epitaph for Mr. de are inscribed on his tombstone. 
 
302 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 Jersey from 1706 to 1721, and. colonel commanding the regiment of 
 New York City militia, or train-bands, horse and foot. He was the 
 intimate friend of the earl of Bellomont, governor of New York, and 
 of William Penn, proprietor of Pennsylvania, who marked especially 
 his amiable character. Abraham de Peyster, second, eldest son of the 
 preceding, succeeded his father as treasurer of New York and New 
 Jersey and held a similar high social position in the colony. His 
 marriage to the eldest daughter of Jacobus Van Cortland introduced 
 another famous family into the line. The direct line continues through 
 
 James de Peyster, eldest son 
 of Abraham, second, who 
 married a daughter of Joseph 
 Reade, member of the king's 
 council, and whose third son 
 (the two elder sons dying 
 without male issue), became 
 the head of the house, and 
 was the father of Frederic de 
 Peyster. Helen Hake, his 
 mother, was the only daugh- 
 ter of Commissary - General 
 Samuel Hake of the British 
 army, and Helen Livingston, 
 eldest daughter of Robert 
 Gilbert Livingston, and great 
 granddaughter of the first 
 lord of Livingston manor. 
 
 Frederic de Peyster was 
 born in the town house of his 
 parents, on Hanover square, 
 at that time one of the most 
 fashionable quarters of New 
 York. He was educated with 
 a care commensurate with the 
 importance of the historic family name, being placed at an early age 
 under the tutelage of Doctor Chase (then principal of a grammar 
 school in Poughkeepsie, New York, and afterward episcopal bishop of 
 Ohio). He was subsequently placed under the instruction of Mr. 
 Findlay, of Newark, New Jersey ; prepared for college under Doctor 
 Eigenbrodt, at Union Hall ; and entered in 1812 Columbia College, 
 from which he graduated in 1816, with high honors, in a class marked 
 for its scholarship and ability. He early developed a talent for dis- 
 tinctively literary pursuits, notably taking lead in exercises of this 
 nature while in college ; but after graduation, having chosen law, he 
 commenced legal studies under honorable Peter Augustus, eldest son 
 of the distinguished John Jay. He was also a student nnder Peter 
 
 DUTCH CHURCH BELL, 1731. 
 
 (Given by Colonel Abraham de Peyster.) 
 
HISTORY OF THE BENCH AND BAE OF NEW YORK 30^ 
 
 Van Schaack, one of the leading jurists of that day. He was admitted 
 to practice in the Supreme Court of New York in 1819, and enter- 
 ing actively upon his profession devoted himself exclusively to chan- 
 cery cases. His signal ability and success won immediate attention, 
 insomuch that in the following year, 1820, by appointment of Gov- 
 ernor De Witt Clinton, he was made a master in chancery. He held 
 this office by successive appointments until 1837, a period of seventeen 
 years, during which he won an enviable reputation by his careful and 
 exhaustive research in determining cases, his decisions receiving well- 
 nigh universal endorsement by the higher tribunals, not one of his 
 decrees, it is said, having been reversed on appeal. 
 
 Retiring from professional and official duties, Mr. de Peyster gave 
 his attention more directly to the historical studies and philanthropic 
 enterprises to which his natural inclinations urged him, bringing to 
 his historical investigations a perfect mastery of the subject, and to 
 his treatment a pleasing literary style and an accurate, logical and 
 scholarly method. His chief historical studies include : " The Moral 
 and Intellectual Influence of Libraries " (1866) ; " William the Third 
 as a Reformer " (1874) ; " The Representative Men of the English Revo- 
 lution " ( 1 876) ; " The Life and Administration of the Earl of Bellomont " 
 (1879) ; "The Culture demanded by the Age" (1869) ; "Early Political 
 History of New York " (1865). He also left in manuscript a work 
 (intended as a companion treatise to that on Bellomont) on Governor 
 Fletcher, which his only child, General John Watts de Peyster, put in 
 print and edited as far as it was possible to epitomize and reduce to 
 reasonable dimensions the enormous amount of valuable information 
 left in loose undigested notes by his father. 
 
 His publications gained for him honorable distinction abroad. In 
 1877 he was elected an honorary fellow of the Royal Historical Society 
 of Great Britain, an honor shared with Ruskin, Froude, Earl Russell, 
 Sir John Lubbock, and many others. He was president of the New 
 York Historical Society at the time of his death. The historian, 
 George Bancroft, at one time secretary of the society, said of Mr. de 
 Peyster : " No man living has done more than he, first to restore life to 
 the society when it had fallen into a state of languor and decay, and 
 then by persistent zeal to raise it from the condition of feebleness to 
 established and ever increasing prosperity." 
 
 Mr. de Peyster was likewise honorary member of the Massachu- 
 setts, Maryland, Pennsylvania, Wisconsin, Florida, Buffalo, and Chi- 
 cago historical societies, and corresponding member of the New 
 England Historic-Genealogical Society. 
 
 Mr. de Peyster's aptitudes were many sided. Early, while yet a 
 student in Columbia College, he was elected commander of an organi- 
 zation among the students for active service in event of an invasion of 
 New York during the war of 1812. In co-operation with the defensive 
 forces under General Jonas Mapes, his command " assisted in the con- 
 
304 
 
 HISTOBY OF THE BENCH AJSTD BAB OF NEW. YOEK 
 
 struction of fieldworks thrown up to defend MoGowan's Pass, which, 
 constituted a portion of the line of entrenchments that extended from 
 the Harlem to the North river." He also interested himself in the state 
 militia; was commissioned captain in the 115th regiment; in 1825 
 became an aide on the staff of Brigadier- General Fleming ; and even- 
 tually was appointed aide on the staff of Governor De Witt Clinton, as 
 well as military secretary to that executive for the southern district of 
 New York, an office of great importance at the time. 
 
 His interest in religious, educational and philanthropic institu- 
 tions marked another conspicuous side of his character. He was vice- 
 president, and one of the original incorporators, of the New York 
 Society for the Prevention of Cruelty to Children ; a member for more 
 than forty years, and on the board of managers, of the New York 
 Bible Society ; a member of the board of the New York Institution 
 for the Deaf and Dumb ; a manager and chairman of the finance and 
 building committee of the Home for Incurables ; clerk of the board of 
 trustees of the Leake and Watts Orphan House for fifty years ; and a 
 member of many other organizations. 
 
 He died August 17, 1882, aged nearly eighty-six years. The tributes 
 of the press were numerous and unusually significant. Said one : " He 
 has probably been connected as- an active officer with more social, 
 literary and benevolent societies than any other New Yorker who ever 
 lived." Another characterized him as one " who, without ever having 
 held any city office, has been for half a century one of the most valued 
 and one of the best known public men in this city." Still another 
 wrote : " The better part of his eighty-six years of life were made 
 memorable by good service to the community in which his ancestors 
 had dwelt for more than two hundred years." 
 
 E SILLE, NICASIUS. See SILLE, NICASIUS DE. 
 
 ICKERSON, EDWARD N. (born in Paterson, New Jersey, 
 February 11, 1824 ; died in Far Rockaway, Long Island, 
 December 12, 1889), was a son of Philemon Dickerson, an emi- 
 nent New Jersey lawyer, judge, and statesman. 1 His mother 
 
 1 Philemon Dickerson was graduated at Princeton, 
 engaged in the practice of law at Paterson, was elected 
 to congress m 1833, became governor and chancellor in 
 1836, was again elected to congress, and upon his retire- 
 ment from that body was appointed United States judge 
 of the District Court of New Jersey, filling that office 
 with distinction until hie death. His brother, Mahlon, 
 became a prominent lawyer of Philadelphia and quar- 
 termaster-general of Pennsylvania, and returning to 
 New Jersey was elected governor and served as United 
 States senator for sixteen years, afterward holding the 
 portfolio of secretary of the navy under President Jack- 
 
 son. The founder of the Dickerson family in America, 
 Philemon, emigrated from England early in the seven- 
 teenth century, and was one of the first puritan settlers 
 of Massachusetts, being a freeholder in Salem in 1638. 
 Peter, one of his descendants, was the owner of the 
 Dickerson iron mines in New Jersey in 1741, speaker of 
 the assembly, and a patriot in the Revolution. Peter's 
 son, Jonathan (grandfather of Edward N.), was a man 
 of remarkable mechanical and scientific ability, and was 
 the grantee of the eleventh patent recorded in the 
 United States patent office. He served in congress and 
 exercised great influence in New Jersey. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 305 
 
 was a daughter of Captain John Stotesbury, an officer in the Revolu- 
 tion, who participated in many important battles. He was educated at 
 Princeton College, where he began, under the distinguished Professor 
 Joseph Henry, the scientific studies which afterward afforded him his 
 unequalled equipment as a patent lawyer. At the age of twenty-one 
 he was admitted to the bar, and he soon attracted attention. His first 
 important case was How vs. Law, an action brought under the Califor- 
 nia mail contract, and soon after he won a victory over Ruf us Choate 
 in the Colt patent suit. In other cases, notably that of Sickles vs. 
 Burden, he added greatly to his rising reputation. Notwithstanding 
 the brilliant promise of his career at the bar, he decided to abandon 
 his profession for a while and devote himself to travel and scientific 
 researches. He visited many of the countries of Europe and Central 
 and South America, thoroughly familiarizing himself with the most 
 recent inventions and improvements. In 1873 he resumed his legal 
 practice, and until his death he applied himself with untiring zeal and 
 the most signal success to its duties, being recognized by his brethren 
 of the bar as the foremost patent lawyer of the United States. Among 
 the great suits with which he was identified as counsel were those of 
 the American Bell Telephone Company and the National Improvement 
 Telegraph Company, the Bell against the People's Company, the Pan- 
 Electric cases, and numerous others involving the best-known patents 
 for the telephone, the telegraph, reaping-machines, explosives, railways, 
 refrigerators, ventilating processes, nickel-plating, planing-machines> 
 and guns. In the Bell-People's suits the records fill fourteen volumes. 
 Among his clients were the Western Union Telegraph Company, the 
 Gold and Stock Telegraph Company, the Standard Oil Company, the 
 McCormick Mower and Reaper Company, the Bell Telephone Com- 
 pany, and the Edison Electric Company. 
 
 To his extraordinary scientific attainments as a patent lawyer 
 Mr. Dickerson added the qualities of unwearying industry and great 
 tenaciousness and aggressiveness. He was never idle. When not 
 engaged in research upon a case, he employed his time in study, ever 
 adding to the range and quality of his knowledge. On the subjects of 
 sanitary plumbing, lighting, ventilation, and heating he was an expert. 
 He was passionately devoted to astronomical science, and on the roof 
 of his residence in Thirty-fourth street near Fifth avenue he built an 
 observatory equipped with the most approved and recent instruments 
 and inventions. 
 
 At a meeting of the New York bar, held to take action upon his 
 death, a resolution was adopted in which the following tribute was paid 
 to his professional qualities : 
 
 In the special field in which he became distinguished he was noted for his mas- 
 tery of the principles of law that regulate the rights of those whose labors have done 
 so much to advance the material prosperity of our country ; for his accurate, prac- 
 tical acquaintance with every branch of science and of mechanics involved in the 
 
306 HI8TOKY OP THE BENCH AND BAR OF NEW TOBK 
 
 useful arts ; as also for his capacity to promote, protect, and defend the interests of 
 inventors. He was thus able to instruct and edify every tribunal before which he 
 appeared, and he deserved and received the full attention and respect of those whose 
 duty it was to decide the controversies in which he took part. Earnest in his con- 
 victions, with a great faculty of lucid statement, and persuasive of speech, he en- 
 forced his views with an eloquence and power that won him many victories. By 
 these qualities he fulfilled, with singular completeness, the proper function of an 
 advocate. Concerned in many of the most important patent litigations of his day, 
 Mr. Dickerson has left his mark upon that branch of our jurisprudence. He has 
 left it also upon the mechanic arts, in some of which he had made highly useful 
 inventions of his own. He has left it, too, upon many of the sciences which are 
 concerned with the material progress of the age. His proficiency in scientific 
 knowledge made him always a welcome guest among its special professors; for 
 while not himself a specialist, his studies and acquirements embraced the whole 
 field of applied science, and thus he was enabled to impart to others more than he 
 received from them. 
 
 ]ICKINSON, DANIEL STEVENS (born in Goshen, Connecti- 
 cut, September 11, 1800 ; died in New York City, April 12, 
 1866), was educated in the public schools of Guilford, Che- 
 nango county, New York. Possessing great natural aptitude, 
 he perfected his elementary training by private studies. He applied 
 himself for a while to teaching and surveying, and then prepared him- 
 self for the bar, being admitted in 1828. Three years later he removed 
 to Binghamton, where he became prominent in his profession and in 
 politics. His public career began in 1836, when he was elected as a 
 democrat to the state senate. In that body he promptly made him- 
 self one of the leaders of his party, being especially conspicuous as a 
 debater. He was the unsuccessful democratic candidate for lieutenant- 
 governor in 1840, but in 1842 he was elected to that office. When his 
 term expired in 1844 he was appointed United States senator by Gov- 
 ernor Bouck to fill a vacancy, and subsequently he was chosen for a 
 full term by the legislature. He pursued a conservative course in the 
 senate on the great questions agitating the public mind— the annexa- 
 tion of Texas, the joint occupation of Oregon, the Wilmot proviso and 
 the compromise measures of 1850. He was the author, in 1847, of two 
 resolutions concerning the government of the territories, which em- 
 braced the substance of the " popular sovereignty " doctrine of later 
 years. In the democratic national convention of 1852 he was sup- 
 ported by the vote of Virginia for the presidential nomination. His 
 attitude on the important measures of the session" of 1850 was highly 
 praised by Daniel Webster, who, In a letter dated September 27, 1850, 
 characterized it as " noble, able, manly and patriotic." After leaving 
 the senate he was nominated by President Pierce, and confirmed, as 
 collector of the port of New York (1852), but he declined the office. 
 
 During the war ex-Senator Dickinson was one of the most earnest 
 and influential supporters of the federal government in the State of 
 New York. In 1861 he was elected attorney-general by a majority in 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 307 
 
 excess of 100,000. Afterward he declined the office of commissioner 
 to settle the northwestern boundary controversy, to which he had been 
 nominated by President Lincoln ; and he also declined an appoint- 
 ment by Governor Fenton as a judge of the Court of Appeals. He 
 accepted, however, the position of United States district-attorney for 
 the southern district of New York, and continued to discharge its 
 duties until his death. He received 150 votes for the vice-presidential 
 nomination in the republican national convention of 1864. His " Life 
 and Works," in two volumes, were published by his brother in 1867. 
 
 IOSSY, GEORGE S. (born in 1835 ; died in Brooklyn, April 
 27, 1882), was one of the earliest and best law-book pub- 
 lishers in the state, issuing many works of importance. His 
 father, John J. Diossy, was also a leading law-book pub- 
 lisher, well-known to the profession. 
 
 IX, JOHN ADAMS (born in Boscawen, New Hampshire, July 
 24, 1798 ; died in New York City, April 21, 1879), was a son 
 of Major Timothy Dix, of the United States infantry. He 
 was educated at Salisbury, Phillips Exeter Academy, the 
 College of Montreal, and Saint Mary's College, Baltimore. He passed 
 his youth and early manhood in the military service. Although but a 
 boy, he was in active duty throughout the war of 1812. He was ap- 
 pointed a cadet in 1812, an ensign in 1813, and in 1814 became a 2d- 
 lieutenant and adjutant to Colonel John De B. Walbeck. After the 
 war he continued in the army, becoming aide-de-camp in 1819 to Gen- 
 eral John A. Brown, then in command of the northern military depart- 
 ment. In 1826 the government dispatched him as a special messenger 
 to the court of Denmark. He was stationed in Fortress Monroe after 
 his return, with the rank of captain, but in consequence of feeble 
 health he soon afterward, in 1828, resigned from the army. 
 
 Whilst serving as aide-de-camp to General Brown at Brownsville 
 he had studied law, and continuing his legal studies later under the 
 direction of William West, ■ he was admitted to the bar. Upon his 
 retirement from the military service he engaged in the practice of the 
 legal profession at Cooperstown, New York, whence he removed to 
 Albany to assume the duties of adjutant-general of the state, to which 
 office he had been appointed by Governor Throop. Thenceforward, 
 for many years, he took an active interest in politics and became one 
 of the leading men in the councils of the democratic party and a con- 
 spicuous member of the famous " Albany regency." He was appointed 
 secretary of state and superintendent of common schools in 1833, and 
 while holding these offices he manifested a highly intelligent devotion 
 to the educational interests of the state, publishing valuable reports 
 
308 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 on the schools, and also (1836) a specially noteworthy report on the New 
 York geological survey. After leaving office, in 1840, he edited for a 
 while the Northern Light, a literary and scientific journal. He 
 served a term in the assembly (1842), and then spent two years in 
 foreign travel. Upon his return he was chosen a member of the United 
 States senate, and he served in that body from 1845 to 1849. As a 
 senator he very reluctantly yielded to free-soil influences, which in the 
 circumstances he could not resist. In 1848 he was nominated for gov- 
 ernor of New York on the tiqket of the free-soil democracy, but was 
 defeated by Hamilton Fish. Under the Pierce administration he was 
 appointed assistant-treasurer at New York. 
 
 During the critical ten years that preceded the civil war Mr. Dix 
 remained a democrat of democrats. Even in the presidential campaign 
 of 1860, unlike his old colleague in the United States senate, Daniel S. 
 Dickinson, he recognized no reasons for breaking from the democratic 
 party. He not only vigorously opposed the candidacy of Abraham 
 Lincoln, but supported the ticket of the extreme element of his party, 
 Breckinridge and Lane. At that time he was postmaster of New 
 York, having been appointed to the place by President Buchanan in 
 May, 1860. When the vacancy in the treasury department occurred 
 in the exciting closing months of Buchanan's term, he was selected by 
 the president, upon the strong recommendation of the New York 
 bankers and financiers, to assume that important portfolio, and began 
 his duties as secretary of the treasury January 10, 1861. He immedi- 
 ately manifested uncompromising devotion to the interests of the fed- 
 eral government as against the secessionists. He sent a special agent 
 to New Orleans, Mobile, and Galveston to save, if possible, the revenue 
 cutters stationed at those ports. Being advised that the commander 
 of the McClelland at New Orleans had refused to obey his orders, he 
 telegraphed, on January 29, upon his own responsibility and with- 
 out consulting the president, the following historic dispatch : 
 
 Treasury Department, Jan. 29, 1861. 
 Tell Lieut. Caldwel] to arrest Capt. Breshwood, assume command of the cutter, 
 and obey the order I gave through you. If Capt. Breshwood after arrest under- 
 takes to interfere with the command of the cutter, tell Lieut. Caldwell to consider 
 him as a mutineer & to treat him accordingly. If any one attempts to haul down 
 the American flag, shoot him on the spot. 
 
 John A. Dix, 
 Secretary of the Treasury. ' . 
 
 He was the first president of the Union Defense Committee, organ- 
 ized to sustain President Lincoln's government, presided at the Union 
 square mass-meeting of April 24, 1861, and organized and sent to the 
 field seventeen regiments in response to the president's call for troops. 
 Appointed a major-general of New York volunteers, he was first placed 
 
 1 For an interesting history of this celebrated dispatch, see " Memorial History of New York," Vol. iii., page 
 480. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 309 
 
 in command of the Arlington and Alexandria departments, and then 
 was assigned to the command of the department of Maryland, where 
 he rendered great services. He was transferred in May, 1862, to Fort 
 Monroe, and in the summer of 1863 to the command of the department 
 of the east at New York, in which position he remained to the end of 
 the war. 
 
 After the war General Dix was, successively, naval officer of the port 
 of New York, minister to France, and governor of New York (elected 
 in 1872 by a large majority, but defeated by Mr. Tilden upon his can- 
 didacy for re-election in 1874). * 
 
 General Dix was eminent as a lawyer and also in financial and 
 corporate enterprises. He became president of the Mississippi & Mis- 
 souri Railway Company, was the first president of the Union Pacific 
 Railroad Company (serving from 1863 to 1S68), and was for a brief time 
 president the Erie Railway Company (1872). He was an accomplished 
 scholar, linguist, orator, and writer, publishing a " Sketch of the Re- 
 sources of the City of New York " (1827), " Decisions of the Superin- 
 tendents of Common Schools" (1837), "A Winter in Madeira and a 
 Summer in Spain and Florence " (1850 ; 5th ed., 1853), " Speeches and 
 Occasional Addresses" (2 vols., 1864), " Dies Irce" (a translation, 1863; 
 republished in 1875), and " Stabat Mater " (translation, 1868). 
 
 He was prominent in the episcopalian denomination, taking an 
 especial interest in Trinity church (of which his son, Reverend Doctor 
 Morgan Dix, has for many years been pastor). He was one of the most 
 conspicuous and honored citizens of New York. On the occasion of 
 the investigation by the Bar Association of the charges against Charles 
 O'Conor (1876) he was chairman of the inquiry tribunal. 
 
 ORSHEIMER, WILLIAM (born in Lyons, New York, Feb- 
 ruary 5, 1832 ; died in Savannah, Georgia, March 26, 1888), 
 was a son of Philip Dorsheimer, a wealthy resident of Buf- 
 falo, who took an active part in the organization of the 
 republican party. He attended Harvard College, and although pre- 
 vented by ill-health from graduating received later from that institu- 
 tion the degree of MA. Admitted to the bar in 1854, he practiced his 
 profession in Buffalo with ability and considerable success, meantime 
 manifesting a decided interest in politics, first as a democrat and then 
 as a republican. He served for a brief period in the war as a major 
 on the staff of General Fremont in Missouri, and afterward wrote an 
 account of "General Fremont's Hundred Days in Missouri." He was 
 appointed United States district-attorney for the northern district 
 of New York by President Johnson in 1867, serving until 1871. Hav- 
 ing resumed affiliation with the democratic party, he was nominated 
 and elected lieutenant-governor of the state on the ticket with Samuel 
 J. Tilden in 1874. He was twice re-elected, serving until 1880. He was 
 
310 HISTORY OF THE BENCH AND BAB OF NEW TOKK 
 
 a commissioner of the state survey (1875) and a commissioner of the 
 state reservation at Niagara (1883). He co-operated heartily and ably 
 with Governor Tilden in his war on the " Canal Ring." In the presi- 
 dential campaign of 1872 he supported Horace Greeley. At the 
 national democratic convention of 1876 he was very instrumental in 
 bringing about the nomination of Mr. Tilden, and he reported the 
 platform as a member of the committee on resolutions. 
 
 Removing to New York City, he was elected to congress in 1882. 
 An early friend of Grover Cleveland, he published a campaign bio- 
 graphy of that democratic leader in 1884. In 1885 he was appointed 
 by President Cleveland United States district-attorney for the southern 
 district of New York, but he resigned the office after a year's service, 
 having assumed the editorship of the New York Daily Star. In this 
 newspaper enterprise he failed to succeed according to his expecta- 
 tions. 
 
 Mr. Dorsheimer was a man of varied attainments, and was long a 
 familiar figure in New York public life. As a lawyer his abilities 
 were well recognized, but his numerous activities in other fields pre- 
 vented him from gaining the distinction at the bar for which his 
 natural capacities qualified him. 
 
 OTY, LOCKWOOD L. (born in Groveland, New York, May 
 15, 1827 ; died in Jersey City, New Jersey, January 18, 187u,, 
 began the practice of the law in Geneseo, New York, and 
 was prominent at the bar. During the war he was very 
 energetic in obtaining volunteers for the army, served as military sec- 
 retary to Governor Fenton and was the founder of the state military 
 bureau at Albany. Prom 1 871 until shortly before his death he was 
 pension agent in New York City. 
 
 RESSER, HORACE (died January 27, 1877), was graduated 
 at Union College in 1828, and, being admitted to the bar, 
 took an active interest in the cause of the negro, being con- 
 spicuous as one of the earliest advocates of escaped slaves 
 
 in the courts of New York. He was a historical and legal writer. 
 
 Among his published works are "The Battle Record of the Amer- 
 
 iqan Revolution " (New York, 1863), and " Internal Revenue Laws as 
 
 Amended to July, 1866 " (New York, 1866). 
 
 UANE, JAMES (born in New York City, February 6, 1733 ; 
 died in Duanesburg, New York, February 1, 1797), was the 
 son of a citizen of New York, who, after a period of service 
 in the British navy, resigned and engaged in mercantile 
 pursuits. On the side of his mother, Altea Ketaltas, he was con- 
 
HISTORY OF THE BENCH AND BAK OF NEW YORK 311 
 
 nected with some of the old and prominent families of New York of 
 Dutch origin. He became related to the powerful Livingston family 
 by his marriage with Mary, daughter of Colonel Robert Livingston, 
 the proprietor of the manor. James Duane was educated for the legal 
 profession, studying in the office of the distinguished James Alexander. 
 He rose to very great eminence in his profession and was in the enjoy- 
 ment of a highly profitable practice. Among his clients was the Trin- 
 ity church corporation in the Anneke Jans suits. He had very large 
 
 James Duane, Efquire, 
 
 CiTVoF 7 
 
 New.Yoxk, j '" MAYOR, 
 
 And the A L D E R M E N of the Gty of N E W- Y O R K. 
 
 To ail to -whom theft Prefents Jhatt come, fend Greeting : 
 
 NOW YE. That <f&<>nc*dJ'y'0&Zj-- J%Zc~ ~&*-*zi*t^ 
 
 is admitted, received and allowed a F R E E M A N and C I T I Z E N of the faid City; 
 to Have, Hold, Ufe and Enjoy all the Benefits, Privileges, Franchiies and Immunities whatsoever, 
 granted or belonging to the {aid City. In Testimont whereof, the laid Mayor and Aldermen 
 hare caufed the Seal of the laid City to be hereunto affixed. WITNESS JAMES DUANE, 
 
 Efquire, Mayor, the "^w***^^^*^^ Day of ^Ca^y Jn the Year of our Lord 
 
 fri/}^ and of the Sovereignty and Independence of the State the <2<-^" ;£-*%_ s. 
 
 K 
 
 
 <7?ic^ 
 
 freeman's certificate issued by mayor duane. 
 
 landed interests in the state. By purchase and inheritance he became 
 the owner of the township of Duanesburg, Schenectady county. About 
 64,000 acres bought by him in that part of the province which subse- 
 quently became Vermont were lost to him by reason of subsequent 
 territorial complications and disputes as to possession. He took a 
 leading part in urging the title of New York to the New Hampshire 
 grants, being the author of the memorial to the assembly in 1773 in 
 support of that claim ; and he was instrumental in causing the New 
 York legislature to declare Ethan Allen and his Vermont associates 
 traitors and outlaws. 
 
312 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 'U.a/nJL > 
 
 In 1774 he was chosen a delegate from New York to the first conti- 
 nental congress. In that body he took a quite conservative position, op- 
 posing the resolution to give support to Massachusetts in her resistance 
 to the acts of parliament, and siding with Jay in sympathy for the 
 English style of government and the English church 
 as against republican principles. With Jay, indeed, u 
 he was at the head of the " party of conciliation " a 
 in New York. He was a member of all the subse- u 
 quent continental congresses. In 1776, before the adoption of the 
 declaration of independence, he was prominent in advocating meas- 
 ures of negotiation with Great Britain. He was a member of the New 
 York provincial congress in 1776-77, which formu- 
 lated and adopted the first constitution of the state. 
 During the war he adhered heartily to the patriotic 
 party, but was not connected with the military ser- 
 vice. After the departure of the British from New 
 York City in 1783, he returned there and was chosen 
 the first mayor of the city under the state charter. 
 He occupied the office from 1784 to 1789, when he 
 resigned to accept the position of district judge for 
 New York, to which he had been appointed by Presi- 
 dent Washington. Meantime he was a member of the 
 state senate (1782-85 and 1789-90), of the state council, and of the 
 national constitutional convention. He retired from the bench of the 
 District Court in 1794, owing to failing health. 
 
 ANNBKB JANS 1 FARM. 
 
 UDLEY, JOSEPH, 1 the first chief-justice of the Colony of 
 New York (born in Poxbury, Massachusetts, September 23, 
 1647 ; died there, April 2, 1720), was the son of Governor 
 Thomas Dudley, of Massachusetts. He was graduated from 
 Harvard in 1665, and, having been designed by his parents for the 
 ministry, studied divinity, but the limited sphere and unostentatious 
 life of a New England clergyman presented no attraction to a man of 
 his worldly ambitions. He accordingly gave up divinity, entered into 
 political life, and shortly afterward was elected a delegate from Pox- 
 bury to the general court, and also a magistrate. He 
 was one of the commissioners for the united colonies 
 of New England from 1677 to 1681, and was a com- 
 missioner to negotiate a treaty with the Narragansett 
 Indians. In 1682 he was the agent of the Colony of Massachusetts 
 in England, and upon the union of Massachusetts and New Hamp- 
 shire, in 1685, returned to Boston and was made, under Andros, presi- 
 dent of the governor's council, at which period he was enumerated by 
 
 1 This biography is taken largely from Honorable Charles P. Daly's " Historical Sketch of the Judicial Tribu- 
 nals of New York, from 1023 to 18(0 " (New York, 1865). 
 
HISTORY OF THE BENCH AND BAR OF NEW YOKK 813 
 
 Dongan as among a very few who might be relied on as loyal and 
 well affected to the king. In 1687 he was made chief- justice of a supe- 
 rior court at Boston. Throughout the administration of Andros he 
 supported all the measures of that unpopular governor, and as he pre- 
 sided as judge upon political trials, he was especially serviceable in 
 enforcing the despotic colonial policy of James. When the people of 
 Boston rose against the government of Andros, upon receiving intelli- 
 gence of the revolution in England (1 688), Dudley, with other obnox- 
 ious persons, was thrown into prison, and 
 A later he was sent to England with Andros to 
 y answer to the new king. There he suc- 
 ceeded in ingratiating himself with the 
 ministry, by which he was first offered the post of governor of Mary- 
 land and Virginia and then that of member of the council of New 
 York, with the promise of a judicial station when the government of 
 Slaughter should be fully established. 
 
 Upon his arrival in New York at the close of 1690 he at once 
 joined the anti-Leislerian party, and when Governor Slaughter as- 
 sumed charge of affairs in 1691 he appointed him at the head of the 
 special commission of oyer and terminer for the trial of Leisler, as chief 
 or principal judge. 1 He pronounced the death sentence upon the 
 accused, who had refused to plead, and one month later (April 15, 1691) 
 was elevated to the office of chief- justice of the Supreme Court of the 
 province. But the Leisler party having obtained the mastery in 1692, 
 he left the province and shortly afterward was removed by Governor 
 Fletcher from the chief-justiceship, 
 Chief-Justice Smith being appointed 
 in his place. 
 
 This second reverse of fortune, 
 however, was of but temporary dura- 
 tion. He again went to England, in 
 1693, and in a very short time became 
 a member of parliament for Newtown, 
 Southampton county, where, some 
 years afterward, he made strenuous 
 but unsuccessful opposition to the re- 
 versal of Leisler's attainder. He sat 
 in parliament for eight years, during 
 which time he was appointed lieutenant-governor of the Isle of 
 Wight. 
 
 He had now reached a position that might have satisfied a man of 
 ordinary ambition ; but, to quote the language of a New England 
 writer, he preferred to be the first man in New England to any subor- 
 dinate position in the mother country; and accordingly, in 1702, he 
 received a commission from Queen Anne appointing him governor of 
 
 1 See pp. 81-82 of this volume. 
 
 LEISLEH S TOMBSTONE. 
 
314 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 Massachusetts. He was governor of that colony for thirteen years 
 until his death. 
 
 Joseph Dudley was a man of great intellectual accomplishments. 
 He had the advantage of an excellent education at the outset of life, 
 had studied divinity and law, and in an age distinguished for metaphy- 
 sical inquiries, was attracted to and devoted much of his time to the 
 cultivation of philosophy. His love of study, however, and the exten- 
 sive knowledge he had acquired, had little effect on his character, for 
 he was essentially a worldly-minded man, with whom the possession of 
 power and of exalted station was the chief end and object of life. 
 Struggling throughout the principal part of his career for power and 
 place, he was not over-scrupulous as to the means he employed. The 
 thirteen years that he was governor of Massachusetts was the most 
 useful and blameless period of his life, but his antecedents had been 
 such that his government was bitterly assailed by his enemies ; un- 
 founded charges of corruption were made against him and he was fre- 
 quently referred to as mainly responsible for the guilt of Leisler's 
 blood and held up to public execration as a common murderer. As a 
 public man he was exacting and ceremonious, diligent in the discharge of 
 the duties of his station, and disposed to administer public affairs up- 
 rightly where it did not conflict too much with his own interests. In all 
 that belongs to the domestic duties and in the more private relations of 
 life his conduct would seem to have been unexceptionable, and his char- 
 acter is very well summed up by the remark of Hutchinson, that he 
 had as many private virtues as was consistent with a man of worldly 
 aims and aspiring ambition. 
 
 UER, JOHN" (born in Albany, New York, October 7, 1782 ; 
 died on Staten Island, August 8, 1858), was a son of William 
 Duer of the Revolution. 1 At the age of sixteen he joined 
 the United States army, from which he retired in two years> 
 entering the law office of Alexander Hamilton. Although his early 
 education was defective, he supplemented it by thorough study, espec- 
 ially in the classics and modern languages. He began legal practice 
 in Orange county, and soon became firmly established in a leading 
 position at the bar. He came prominently into public life in 1821 as a 
 delegate to the constitutional convention, in which he distinguished 
 himself by ability and eloquence. In 1825 he was appointed by Gov- 
 ernor Yates to fill the vacancy in the commission to revise the statutes 
 of the state made vacant by the resignation of Chancellor Kent. His 
 
 1 William Duer (born in Devonshire, England, March county judge, a member of the New York provincial con- 
 18, 1747 ; died in New York City, May 7, 1799), was gress, a member of the committee of safety, a mem- 
 educated at Eton and accompanied Lord Clive to India, berof the state constitutional convention of 1776-77, a 
 as aide-de-camp, in 1762. Inheriting his father's es- delegate to the continental congress in 1777-78, eec- 
 tatea in Antigua, he came to New York in 1768 to ar- retary of the treasury board in 1789 and assistant-sec- 
 range for lumber supplies. Here he made land and retary of the treasury under Hamilton. He failed in 
 other investments, and took up his residence. He was 1792 for $3,000,000, which resulted in the first financial 
 prominent in public life, was a colonel of militia, a panic caused by speculation. 
 
IIISTOKY OF THE BENCH AND BAR OF NEW YORK 315 
 
 original associates in this work were Benjamin F. Butler and Henry 
 Wheaton ; but Mr. Wheaton presently resigned, and his place was 
 filled by the appointment of John C. Spencer. Mr. Duer contributed 
 valuably to the labors of the revisers, notwithstanding the pressure of 
 his professional duties. Meantime, in 1827, he had been appointed 
 United States district- attorney at New York City, and in 1828 he 
 resigned from the commission. At the close of the Adams adminis- 
 tration he resumed his private practice in . New York. He devoted 
 himself especially to commercial law. In 1845 and 1846 he published 
 the first two volumes of an exhaustive work, " A Treatise on the Law 
 and Practice of Marine Insurance." The plan of this work contem- 
 plated three volumes, but it was never completed. In 1849, at the 
 election for judges of the Superior Court of the City of New York, he 
 was chosen to that bench, and in May, 1857, he became its chief -justice, 
 as successor to Thomas J. Oakley. He filled that office until his death. 
 In his latter years he edited and published five volumes, and part of a 
 sixth, of reports of the Superior Court. 
 
 UER, WILLIAM (born in New York City, May 25, 1805 ; 
 died there, August 25, 1879), was a son of William Alexander 
 Duer (q. v.). He was graduated from Columbia College in 
 1824, was admitted to the bar and began the practice of law 
 in Oswego. From there he removed to New York City in 1832. The 
 next year he went to New Orleans, and returning in 1835 he again 
 settled in Oswego, where he served as county district-attorney (1845-47) 
 and was twice elected to congress (1847 and 1849). Later he was min- 
 ister to Chili until 1854 and practiced law in San Francisco. He 
 returned to New York in 1858 and lived in retirement until his death. 
 
 UER, WILLIAM ALEXANDER (born in Rhinebeck, New 
 York, September 8, 1780 ; died in New York City, May 30, 
 1858), was a son of William Duer and a brother of John 
 Duer, the reviser. He began the study of the law in Phila- 
 delphia and continued it under Nathaniel Pendleton in New York, 
 being admitted to the bar in 1802. He formed an association with 
 Edward Livingston and afterward with his brother-in-law, Beverley 
 Robinson. Deciding to unite his fortunes to those of Edward Living- 
 ston at New Orleans, he removed to that city, where he made a study 
 of Spanish civil law and practiced successfully. His health, however, 
 was impaired by the climate, and having married a daughter of Wil- 
 liam Denning of New York, he returned to that city. In 1814 he 
 removed his law practice to Rhinebeck, New York. While residing 
 there he was elected to the assembly,' and in that body he was the 
 author of a law which became the basis of the present statute on the 
 
316 
 
 HISTORY OF THE BENCH AND BAB OF NEW YORK 
 
 common school income, and also was a promoter of canal legislation 
 and of the act vesting in Livingston and Fulton the right of naviga- 
 tion. He became a judge of the Supreme Court in 1822, serving until 
 1829. He was president of Columbia College from 1829 until his resig- 
 nation in 1842. He was from his earliest years a contributor to cur- 
 rent literature, wrote various pamphlets of historical interest and 
 delivered a number of able lectures and addresses. Notable among 
 his writings is his life of his grandfather, William Alexander, Earl of 
 Stirling (New York, 1847). 
 
 UNNING, BENJAMIN P. (born in Orange county, New 
 York, April 15, 1819 ; died in New York City, October 17, 
 1895), was graduated at Union College and began law prac- 
 tice in Goshen, New York. In 1853 he became an assistant 
 of Charles O'Conor in the office of United States district-attor- 
 ney for southern New York, and at the expiration of his term he 
 entered the law firm of O'Conor, Pullerton & Dunning, which, upon 
 Judge Fullerton's withdrawal, became O'Conor & Dunning, retaining 
 that name until Mr. O'Conor retired from active practice. Mr. Dun- 
 ning then succeeded to the important business which the great repu- 
 tation of the firm had attracted. In 1872 he was nominated for judge o*f 
 the Court of Common Pleas of the City of New York, but declined. 
 
 WIGHT, FRANCIS (born in Springfield, Massachusetts, March 
 14, 1808 ; died in Albany, New York, December 15, 1845), 
 was graduated in 1827 from the collegiate department of 
 Harvard, and in 1830 from the law school, being admitted to 
 the bar in 1834 after completing a European tour. He practiced law 
 until 1838 in Massachusetts, Michigan, and New York, when he dis- 
 continued his active connection with the profession. He took a strong 
 interest in public school matters, and left his impress on state legis- 
 lation by originating and bringing to adoption the NeW York state 
 code of public instruction. From 1840 until his death he published the 
 District School Journal, under the auspices of the state government. 
 
 WIGHT, THEODORE WILLIAM (born in Catskill, New 
 York, July 18, 1822 ; died in Clinton, New York, June 30, 
 1892), was a son of Doctor Benjamin Woolsey Dwight. ' He 
 was graduated from Hamilton College in 1840, and after 
 completing a course at the Yale Law School returned to Hamilton as 
 
 1 Benjamin Woolsey Dwigbt studied medicine in 
 Philadelphia under Benjamin Hush, but abandoned its 
 practice on account of ill-health and engaged in mercan- 
 tile pursuits. He wrote a notable pamphlet on " Chronic 
 Debility ofthe Stomach." His father was the illustrious 
 Timothy Dwight, president of Yale College from 1795 to 
 1817. Theodore William Dwight was a cousin of Presi- 
 dent Theodore Woolsey, of Yale, and of Timothy 
 
 Dwight, who in 1886 succeeded Noah Porter in the 
 Yale presidency. 
 
 The American ancestor of the Dwight family was 
 John Dwight, who came to this country in 1634 and 
 became one of the original settlers of Dedham, Massa- 
 chusetts. One of his descendants was Major Timothy 
 Dwight, of Northampton, who married a daughter of 
 Jonathan Edwards. 
 
HISTORY OF THE BENCH AND BAR OE NEW YORE 317 
 
 a tutor. There lie was made professor in 1846. He was the founder of 
 Hamilton Law School, and presided over it until 1858, when, being 
 elected professor of municipal law in Columbia College, he came to 
 New York. He organized the Columbia Law School and was its sole 
 instructor until 1873, when the faculty was enlarged. In 1891 
 he retired from the institution and was made professor emeritus. 
 During the thirty -three years that he was at its head over ten thou- 
 sand students were under his instruction and many of the distin- 
 guished leaders of the bar in New York and throughout the country 
 were his pupils. 
 
 Professor Dwight's fame as a legal instructor is universal and en- 
 during. Professor James Bryce, the eminent author of " The Ameri- 
 can Commonwealth," in an article on "The Legal Profession in 
 America," written after a visit to this country, said of him : ' 
 
 Columbia College in New York is fortunate in possessing a professor of great 
 legal abilities, and an extraordinary gift of exposition, whose class-rooms, like those 
 at Harvard, are crowded by large and highly intelligent audiences. Better law 
 teaching than Mr. Dwight's it would be hardly possible to imagine. It would be 
 worth an English student's while to cross the Atlantic to attend his course. 
 
 • Theodore W. Dwight will be remembered as one of the most im- 
 portant New Yorkers of his generation. His activities were wide and 
 varied in other departments than that of legal education. He was vice- 
 president of the state board of charities, president for many years of 
 the New York prison association for helping discharged convicts, a 
 member of the constitutional convention of 1867 (serving on its judici- 
 ary committee), a member of the commission of appeals (1874-75), a 
 member of the committee of seventy, and for a time chairman of its 
 committee on legislation. He was a master of languages, president of 
 the Dante Club, counsel and referee in many important cases, and an 
 excellent contributor to legal literature, being the author of several 
 works in constant use, especially in suits involving charitable uses and 
 trusts. He collected a valuable law library. 
 
 DMONDS, JOHN WOKTH (born in Hudson, New York, 
 March 13, 1799 ; died in New York City, April 5, 1874), was 
 a grandson of Thomas Worth, one of the first settlers of Hud- 
 son. He was graduated in 1816 from Union College and 
 studied law at Cooperstown in the office of George Monell, afterward 
 chief-justice of Michigan. In 1819 he entered the office of Martin Van 
 Bureii at Albany, and in 1820 he began the practice of the profession 
 at Hudson. Whilst residing there he held various offices, was promi- 
 nent in the legislature, and was sent on a government mission to the 
 Indians. In 1843 he removed to New York City, where he soon en- 
 
 MaeMillan'i! MaqaziM, Vol. xxv., pp. 306-218. 
 
818 HISTORY OF THE BENCH AND BAE OP "NEW YORK 
 
 joyed a high reputation. He was appointed state prison inspector in 
 1843, and he founded the prison association for the amelioration of the 
 condition of convicted criminals, and also for enabling discharged con- 
 victs to earn an honest livelihood. From 1845 to 1853 he was succes- 
 sively circuit judge, judge of the Supreme Court, and judge of the 
 Court of Appeals. He was distinguished on the bench for the quali- 
 ties of sound judgment, thorough knowledge of the law, industry, and 
 energy. 
 
 In 1853 he resumed his private practice in New York. He published 
 in 1864 five volumes of " New York Statutes at Large," containing the 
 revised statutes and the general statutes to 1863. Describing the 
 labors that he performed in connection with this publication, he said 
 that they involved " the perusal of some 45,000 pages of statute law, 
 about one-half of which I have gone over eight or ten times, and the 
 examination of some 25,000 reported cases, half of which I have had to 
 examine twice over." This work was promptly accepted by the bar as 
 a standard authority. He afterward added two supplemental volumes 
 and an index. In 1868 he published a volume of cases decided by him- 
 self, mostly at nisi prius. He was a staunch believer in spiritualism. 
 
 D WARDS, CHAKLES (born in Norwich, England, March 17, 
 1797 ; died in New York City, May 30, 1868), was an exten- 
 sive writer on law and other subjects. Among his legal 
 works are " The Juryman's Guide " (1831), " Parties to Bills 
 and Other Pleadings" (1832), "Receivers in Chancery" (1839-46), 
 " Reports of Chancery Cases, 1st New York Circuit — 1831-45 " (4 vols.), 
 "Receivers in Equity" (1857), and "Referees" (1860). He was grad- 
 uated at Cambridge, England, and emigrated to New York, where he 
 practiced law. He was counsel to the British consulate-general for a 
 quarter of a century. 
 
 D WARDS, HENRY PIERREPONT (born in 1809 ; died in 
 New York City, February 24, 1855), was a lineal descendant 
 of Reverend Jonathan Edwards and son of Henry Waggaman 
 Edwards, governor of Connecticut and United States senator 
 from that state. He served for seven years as judge of the Supreme 
 Court of New York, ranking high for legal and judicial ability. 
 
 DWARDS, OGDEN (born in Connecticut in 1781 ; died on 
 Staten Island, April 1, 1862), was an uncle of the preceding. 
 Early in the century he became a prominent member of the 
 New York bar. He was surrogate for a long term of years, 
 a member of the legislature, a delegate to the state constitutional con. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 319 
 
 vention of 1821, and afterward circuit judge of the Supreme Court until 
 1841, when he retired, having reached the age limit. He was a whig, 
 and ran for governor unsuccessfully on the ticket of his party. 
 
 LY, ALFRED (born in Lyme, New London county, Connecti- 
 cut, February 18, 1815 ; died May 18, 1892), was admitted 
 to the bar at Rochester in 1841, and began practice there. 
 He was for years a well-known lawyer of that city. He 
 served in congress as a republican from 1859 to 1863. Early in the 
 war, having been sent to the battlefield of Bull Run as a civilian 
 inspector, he was taken prisoner and confined in Libby prison, where 
 he remained for six months. He afterward published his diary, en- 
 titled " Journal of Alfred Ely, a Prisoner of War in Richmond." 
 
 MMET, ROBERT (born in Ireland about 1792 ; died in New 
 Rochelle, New York, September 15, 1873), a son of Thomas 
 Addis Emmet (q.v.), was brought to this country in his boy- 
 hood by his father. He adopted the legal profession, was 
 held in high regard by the members of the bar, and became a justice 
 of the Superior Court. 
 
 He was more especially distinguished for his active efforts in 
 behalf of his native land, and was conspicuously trusted and esteemed 
 by the representative men of the Irish race resident in New York City. 
 In 1848, when an insurrection was contemplated in Ireland, he cordially 
 co-operated with his countrymen in New York in demonstrations of 
 sympathy, and was one of the directory formed for the purpose of 
 sending material aid to the Irish patriots. He was an impassioned 
 speaker. At the great meeting held at the Tabernacle, June 6, 1848, he 
 delivered an address in which he said : " If Ireland cannot achieve her 
 independence without bloodshed, let it be with blood. I know some- 
 thing of the horrors of civil war in Ireland, but if it must come, I am 
 not now too old, and I shall be found in the ranks of the people of my 
 native island." 
 
 MMET, THOMAS ADDIS (born in Cork, Ireland, April 24, 
 1764 ; died in New York City, November 14, 1827), was a son 
 of an eminent physician in Dublin and brother of Robert 
 Emmet, the famous Irish patriot, who was executed in Dub- 
 lin in 1803. He was educated for the medical profession and passed 
 through Trinity College, Dublin, and also Edinburgh University, and 
 obtained his degree. He abandoned medicine to take up law, and 
 entered as a student at the Temple, London, and in 1791 was admitted 
 
320 HISTORY OF THE BENCH AND BAE OF NEW YORK 
 
 to the Irish bar. After his admission he assisted his brother Robert 
 in writing articles on Irish government, and they both went to the con- 
 tinent of Europe to enlist help for Ireland's freedom. Thomas remained 
 at Brussels while Robert crossed to Ireland and engaged in the under- 
 taking which brought him to the gallows. Thomas followed his 
 brother to Ireland and was arrested, charged with being the head of 
 the " United Irishmen," which was alleged to be a treasonable organ- 
 ization. He was confined in jail in Ireland and afterward in Scotland. 
 Being liberated, he went first to Paris and in 1804 came to America 
 and settled in New York, in which city he practiced law the rest of his 
 life. In 1812 he was appointed attorney-general of the state. He was 
 retained in many of the important cases tried in New York City, and 
 also often appeared before the Supreme Court of the United States. 
 He was one of the counsel opposed to Webster in the great case of 
 Gibbons vs. Ogden, 9 Wheaton, 1. His argument in this case attracted 
 wide attention and won encomiums from Webster himself. He once 
 sued Chancellor Livingston in behalf of a client who, he claimed, had 
 been unlawfully imprisoned by the chancellor's order, but in that suit 
 he was defeated, the Court for the Correction of Errors deciding that a 
 judge is not liable for a mistake in judgment. 
 
 The early New York reports show him to have been engaged in a 
 very extensive law practice, involving all manner of questions, from 
 those of constitutional and international law to those of libel. He was 
 the counsel of Governor Lewis in his libel case against the editor of 
 the American Citizen. Emmet was noted for his courtesy while at the 
 bar, never indulging in any vituperative epithets or abusing his oppo- 
 nent, but his gentlemanly instincts did not prevent him from using to 
 the utmost all his ingenuity and shrewdness on behalf of his client. 
 Many interesting anecdotes are told illustrative of his natural and legal 
 cleverness. He died from apoplexy, the stroke of which came on him 
 in the court-room in New York City while engaged in the trial of a 
 case. Although not buried there, he has a commemorative shaft in 
 Saint Paul's churchyard on lower Broadway, New York City. Before 
 his death he published " Pieces of Irish History." Judge Story thus 
 wrote of him : 
 
 His mind was quick, vigorous, searching, and buoyant. 'He kindled as he 
 spoke. His rhetoric was never florid and his diction, though select and pure, 
 seemed the common dress of his thoughts as they arose,. rather than any studied 
 effort at adornment. 
 
 MMET, THOMAS ADDIS (born in Ireland in 1798 ; died 
 in Astoria, Long Island, August 12, 1863), was a son of the 
 preceding. Though not as distinguished as his father and 
 brother Robert, he was a good lawyer, and as master of chan 
 eery for a long period made a creditable record. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 321 
 
 MOTT, JAMES (bora in Poughkeepsie, New York, March 14, 
 1771 ; died there April 7, 1850), known as Judge James Emott 
 " the elder," was self-educated, and, after studying law and 
 being admitted to the bar, opened a law office at Ballston 
 Centre, New York, removing from there to Albany about 1800. He 
 was soon regarded as the peer of the great lawyers of that brilliant era 
 of the New York state bar. He held important public offices. In 1797 
 he was appointed a commissioner to settle the disputes to lands in the 
 military tract of Onondaga county ; he was a member of the New York 
 assembly for a number of years, being its speaker in 1814, and a repre- 
 sentative in congress from 1809 to 1S13, being prominent among the 
 federalist members of that body. His judicial career extended, with a 
 brief intermission, from 1817 to 1831. Upon the organization of the 
 Dutchess county Court of Common Pleas in 1817 he was selected its 
 first judge. In 1827 he became judge of the 2d judicial circuit. He 
 resigned the office in 1831. 
 
 MOTT, JAMES (born in Poughkeepsie, New York, April 23, 
 1823 ; died there, September 11, 1884), a son of the preceding, 
 was graduated with the first honors from Columbia College 
 in 1838. Admitted to the bar of the Supreme Court at 
 Poughkeepsie in 1844, he entered upon the practice of the law there, 
 with successful results from the start. In 1849 he was appointed dis- 
 trict-attorney of Dirtchess county, and he became the first mayor of 
 Poughkeepsie upon the granting of its charter in 1854. This office 
 he resigned to become a justice of the Supreme Court for the 2d 
 judicial district in November, 1855. He sat on that bench from Jan- 
 uary 1, 1856, to January 1, 1864, being appointed presiding judge 
 of the district in 1863 and serving ex-officio as judge of the Court of 
 Appeals during the last year of his term. After his retirement from 
 the bench he came to New York City to practice law, and was retained 
 in very many important litigations^ Hardly any case of note involv- 
 ing questions of law applicable to corporations arose in the City of 
 New York during the last ten years of his practice in which he was 
 not employed. In the last two years of his life he was prevented by 
 infirmity from conducting cases in court, but his advice as chamber 
 counsel was largely sought for, and many admirable briefs proceeded 
 from his pen after he was unable to stand and address the bench. 
 
 The opinions delivered by Judge Emott from the bench were 
 marked by great research, logical reasoning, clear statement of legal 
 principles, and careful examination of the facts of each case. As rep- 
 resentative specimens, his opinions in the matter of the Chenango 
 Bridge (27 N. Y. R, 105), in the People vs. Kerr (27 N. Y. R., 188), and 
 in the Metropolitan Bank vs. Van Dyke (27 N. Y. R,, 486) may be 
 mentioned. 
 
 He was one of the organizers of the Association of the Bar of the 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 City of New York, a member of the Union League club, and a prom- 
 inent member of the celebrated committee of seventy. He took an 
 especial interest in the concerns of the Association of the Bar, and was 
 chairman of its library committee from the beginning. Upon his 
 retirement from that position in 1883, the executive committee testi- 
 fied its strong appreciation of his services by a resolution reciting that 
 the library owed " its existence as well as its present efficiency largely 
 to his comprehensive knowledge of legal literature and his sound and 
 discriminating judgment in the organization and development of the 
 various classes of which so great a library is necessarily composed." 
 " The very inception of the library," the committee added, " is due to 
 his energy in the organization of the ' century fund,' made up of the 
 subscriptions of a hundred members of the association at the time of 
 its organization." 
 
 Although the last twenty years of his professional life were passed 
 in New York, he retained his residence in Poughkeepsie. For thirty- 
 two years he was president of the Merchants' Bank of that city. 
 
 WING, THOMAS (born in Lancaster, Ohio, August 7, 1829 ; 
 died in New York City, January 21, 1896), was the third son 
 of that eminent lawyer and statesman, Thomas Ewing, sen- 
 ator from Ohio, secretary of the treasury, and first secretary 
 of the interior. He was of Scotch- Irish descent and traced his lineage 
 from Findley Ewing, of Londonderry, Ireland, a native of Lower Loch 
 Lomond in Scotland, who distinguished himself in the war of 1688 under 
 William of Orange. His paternal grandfather, George Ewing, was a 
 lieutenant in the war of the Revolution. At nineteen Thomas Ewing 
 was secretary of the commission to settle the question of the boundary 
 between Virginia and Ohio, and a year later he became one of the sec- 
 retaries of President Taylor. He later entered Brown University, and 
 graduated from that institution in 1854. The following year he com- 
 pleted his law studies at the Cincinnati Law School, and in 1856 began 
 practice at Leavenworth, Kansas, in the firm of Sherman, Ewing & 
 McCook, including General Dan McCook and General William T. 
 Sherman. General Ewing soon placed himself at the head of his pro- 
 fession in Kansas, and took a conspicuous part in the struggle which 
 made it a free state. He represented Kansas in the peace conference 
 assembled in Washington in 1860, and at the age of twenty-nine was 
 elected first chief-justice of the Supreme Court of that state. He took 
 an active part in the struggle to make Kansas a free state, and was a 
 member of the free state convention, though he bolted the convention 
 on the discovery of the frauds perpetrated by the enemies of the free 
 state constitution. 
 
 He first appears in the civil war as colonel of the 11th regiment of 
 Kansas volunteer infantry, recruited and organized by him in 1862. He 
 led his command in several severe engagements in Arkansas — at Cane 
 
HISTORY OF THE BENCH AND BAR OE NEW YORK 323 
 
 Hill, Van Buren, and Prairie Grove, — and for gallant conduct was pro- 
 moted to be brigadier-general on the 11th of March, 1863. Soon after he 
 was assigned to the important command of the " district of the border," 
 comprising the State of Kansas and the western portion of Missouri, 
 which he held from June, 1863, to February, 1864, and in which he 
 won the emphatic approval of President Lincoln and General Schofield. 
 His " Order No. 11," issued while he held this command, directing the 
 inhabitants of large portions of three border counties of southern 
 Missouri to remove to the military posts or out of the border, was and 
 is still severely criticised. It was the result of a peculiarly difficult 
 situation, solvable in no other way, and it is enough to say that in a 
 published letter General Schofield said : " The responsibility for that 
 order rests with President Lincoln and myself in the proportion of our 
 respective rank and authority." General B wing's most distinguished 
 service during the war was in fighting the battle of Pilot Knob on the 
 27th and 28th of September, 1864. General Rosecrans in a special 
 order says of this brilliant episode : 
 
 With pride and pleasure the commanding general notices the gallant conduct of 
 Brigadier- General Thomas Ewing, Junior, and his command, in the defence of Pilot 
 Knob, and in the subsequent retreat to Eolla. With scarcely one thousand effective 
 men they repulsed the attack of Price's invading army, and successfully retreated 
 with their battery a distance of one hundred miles in the face of a pursuing and 
 assailing cavalry force of five times their number. General Ewing and his subordi- 
 nates have deserved well of their country. Under such commanders, federal com- 
 manders should always march to victory. 
 
 After the war until 1880 General Ewing was conspicuous in Ohio 
 and national politics. He was a member of the Ohio constitutional con- 
 vention of 1873-74, where his legal attainments and admirable powers of 
 debate gave him a foremost place. He was a member of the 45th and 
 46th congresses, and took an active part in their proceedings. In 1879 
 he was the democratic candidate for governor of Ohio, but was defeated. 
 A ripe scholar, a strong, ready and graceful speaker, an expert parlia- 
 mentarian, and possessing a personal magnetism which irresistibly 
 attracted and firmly held the attention of the masses, he was admirably 
 equipped as a popular leader. 
 
 Since 1882 he held aloof from active participation in politics and 
 engaged with great success in the practice of the law in New York 
 City. He was, one of the founders of the Ohio society of New York, 
 and for three years its president. 
 
 ARWELL (or FARRAWELL), GEORGE, was appointed in 
 1691, with William Nicoll and Emott, to prosecute Leisler. 
 It is supposed that he was " West's creature," mentioned in 
 a letter written by Randolph, of Massachusetts, from Boston, 
 January, 1688, to Mr. Povey. " I have wrote you," said Randolph, 
 "of the want we have of two or three honest attorneys (if any such 
 
324 HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 thing be in nature). We have but two ; one is West's creature ; came 
 with him from New York, and drives all before him. He also takes ex- 
 travagant fees, and for want of more, the country cannot avoid coming 
 to him, so that we had better be quite without them than not to 
 have more." 1 
 
 ELLOWS, JOHN RANDOLPH (born in Troy, New York, in 
 1831 ; died in New York City, December 7, 1896), emigrated 
 to Arkansas as a young man, studied law, and was admitted 
 to the bar. When the war broke out, although a northerner 
 by birth, his sympathies were strongly with the confederacy, and he 
 enlisted as a private in the confederate army. He soon rose to the rank 
 of colonel and served until the capture of Fort Fisher, when he was taken 
 prisoner and was put under parole until the close of the war. Then he 
 resumed' his practice in Little Rock, Arkansas, where he married. He 
 came to New York during the Grant-Seymour campaign, and one of his 
 speeches in support of the democratic candidate attracted wide atten- 
 tion for its oratorical brilliancy. Shortly after he was appointed assist- 
 ant-district-attorney of New York City under S. B. Garvin. He served 
 in this capacity until 1887, when he was elected district-attorney. In 
 1890 and 1892 he was elected to congress, but he resigned his seat in 
 1893 to again become district-attorney, continuing in that office until 
 his death. 
 
 During his official career he conducted a large number of impor- 
 tant cases. He prosecuted most of the boodle aldermen and secured the 
 convictions of several. When E. S. Stokes, of the Hoffman House, 
 was tried for the murder of James Fisk, Colonel Fellows found himself 
 in a most peculiar position. He was Stokes' friend and legal adviser, 
 and yet, as assistant-districtattorney, he was assigned to conduct the 
 case against him. He did so and secured a verdict of murder in the 
 first degree. When a new trial was granted and he was again assigned 
 to the case, he resigned rather than continue in the matter. His resig- 
 nation was not accepted and another assistant was assigned on the 
 case. 
 
 IELD, DAVID DUDLEY (born in Haddam, Connecticut, Feb- 
 ruary 13, 1805 ; died in New York City, April 13, 1894), was the 
 eldest child of the Reverend David Dudley Field and Sub- 
 mit Dickinson, his wife. 2 When a boy less than ten years 
 old he had already, under his father's tutelage, mastered the rudiments 
 
 1 Quoted by Washburn, "Judicial History of MaBsa- of the sons, was the projector of the Atlantic cable ; 
 chusetts," p. 104. Stephen J. Field, another son, is now (1897) one of the 
 
 2 The Field family iB a notable one in the annals of justices of the Supreme Court of the United States ; 
 America. The father, Reverend David Dudley Field, Henry M. Field, a third son, was an eminent clergyman 
 was a clergyman of great learning and intellectual force, and editor ; a daughter, Emilia Ann, married the Rev- 
 He preached at Haddam, Connecticut, and Stockbridge, erend Josiah Brewer, and their son, David J. Brewer, is 
 Massachusetts. He had a numerous family, all of whom one of the justices of the Supreme Court of the United 
 attained more or less distinction. Cyrus W. Field, one States, 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 325 
 
 of Latin and Greek. He took the four years' course at Williams Col- 
 lege and graduated therefrom in 1825. He then went to Albany, New 
 York, and read law with Harmanus Bleecker, but soon thereafter went 
 to New York City, where in 1828 he was licensed as an attorney, and 
 in 1830 was admitted as counsellor. From the time of his admission 
 to the bar up to within a few years of his death he was engaged in the 
 active practice of the law in New York City, becoming one of the fore- 
 most lawyers of America. He was on one side or the other in nearly 
 all the celebrated cases tried in the metropolis. He took part in the 
 . " Erie litigation " as counsel for James Fisk ; he was leading counsel 
 for William M. Tweed, in which case he succeeded in convincing the 
 Court of Appeals that " cumulative sentences " for misdemeanors were 
 not warranted by law ; he was leading counsel for Samuel J. Tilden 
 before the electoral commission and argued the validity of the electoral 
 returns from Florida. He was one of the counsel for Milligan, the In- 
 diana copperhead, who was sentenced by a court-martial to be hanged 
 for treason. Mr. Field induced the Supreme Court of the United 
 States to decide in this case that where the judges of the federal Circuit 
 Court are divided in opinion on the merits of a habeas corpus the ques- 
 tion could be certified to the United States Supreme Court ; but the 
 real triumph consisted in the ruling (sustaining Mr. Field's contention) 
 that a civilian not in the military service or in an insurrectionary state 
 could not be tried by court-martial, but must be tried by the civil tri- 
 bunals. He took a conspicuous part in other important cases before 
 the United States Supreme Court. 
 
 But it is upon his achievements as a codifier rather than as a prac- 
 ticing lawyer that Mr. Field's reputation and celebrity rest. In 1839 
 he addressed a letter on the subject of the necessity of codification to 
 Culian C. Verplanck. In 1841 he submitted to the legislature several 
 bills codifying certain portions of the law, but they failed of passage. 
 When the state constitutional convention met in 1846 to amend the 
 constitution, Mr. Field, though not a member, brought influence to bear to 
 have the convention declare for codification as a proper means to rid 
 the law of its traditional terrors. The convention recommended that 
 the distinction between law and equity should be abolished and that 
 commissioners should be appointed to prepare codes. In 1847 Mr. 
 Field was appointed one of the commissioners to draft appropriate 
 codes, and in such capacity he prepared the celebrated New York code 
 of civil procedure, which was passed by the legislature and went into 
 operation in 1848. He drafted and submitted to the legislature at 
 various times three other codes, one called the penal codej stating the 
 substantive criminal law, which was adopted by the legislature in 1882; 
 another, the code of criminal procedure, dealing with the adjective 
 criminal law, adopted in 1881 ; and the third— his most ambitious un- 
 dertaking—the so-called civil code, which deals with substantive civil 
 law, but which has failed of passage. His code of civil procedure is the 
 
326 HISTORY OP THE BENCH AND BAR OF J5TEW YORK 
 
 prototype for the practice codes of twenty-seven other states and three 
 territories, while his civil code has been enacted in the main in Cali- 
 fornia and the two Dakotas. In 1866 he advocated before the English 
 association for the promotion of social science the preparing and adopt- 
 ing of international codes, the distinctive feature of which should be 
 arbitration and the abolition of war. He drafted an international code 
 called " Outlines of an International Code," which has been translated 
 into Chinese, Italian, and French. He was the first president of the 
 " association for the reform and codification of the laws of nations." 
 
 Mr. Field never took a very active part in politics, but was a mem- 
 ber of congress in 1877, being elected to fill the unexpired term of 
 Smith Ely, who had been elected mayor of New York City. As a 
 member of congress he was regarded as Mr. Tilden's spokesman on the 
 floor, and he took a very active part in the Hayes-Tilden contested 
 election case. His writings and attitudes on the various questions of 
 the day, including his favorite subject of codification, may be found in 
 a collected form in his " Speeches, Arguments, and Miscellaneous Pa- 
 pers," published in 1886. 
 
 IELD, MAUNSELL BRADHURST (born in New York City, 
 March 26, 1822 ; died there, January 24, 1875), was graduated 
 from Yale College in 1841 and was admitted to the bar in 
 1847. He began the practice of the law in New York with 
 John Jay. He travelled extensively and filled positions in the diplo- 
 matic service of the United States, being secretary of legation at Paris 
 under John Y. Mason and attached to the legation at the Spanish 
 capital under Pierre Soule. He was one of the American commission- 
 ers to the Paris exposition in 1855. Later he was assistant- secretary 
 of the treasury, resigning in 1865, and collector of internal revenue for 
 the 6th district of New York until 1869. He then returned to his pro- 
 fessional practice and became judge of the 2d District Court in New 
 York to fill a vacancy, remaining in that office until 1874. He was 
 an accomplished writer, and published a volume of ' ' Memoirs " which 
 enjoyed popularity. 
 
 ILLMORE, MILLARD, thirteenth president of the United 
 States (born in Locke — now Summerhill — township, Cayuga 
 county, New York, February 7, 1800 ; died in Buffalo, March 
 1, 1874), was descended from John Fillmore, a mariner of 
 Ipswich, Massachusetts, who emigrated from England early in the 
 eighteenth century. The grandfather of the future president, Na- 
 thaniel Fillmore, fought in the French and Indian war and the Revo- 
 lution, rising to the rank of lieutenant. His son, also named Nathaniel, 
 married Phebe Millard about the close of the last century, and removed 
 to New York state, building a log cabin in the wilderness. He had 
 
HISTORY OF THE BENCH AND BAB OF NEW YORK 327 
 
 the misfortune to lose his property in consequence of defectiveness in 
 its title. He then took 130 acres in the " military tract " of the same 
 county, very poor and wholly unimproved land. 
 
 Millard Fillmore in his early youth worked on his father's farm, 
 attending school in the winter months. At the age of fourteen he was 
 apprenticed to a wool-carder. He worked at that trade until he was 
 nineteen years old. Meantime his attendance at school was discon- 
 tinued, but he made diligent use of such books as he could obtain. 
 Aspiring to become a lawyer, he entered in 1819 the office of a retired 
 country practitioner, receiving his board in recompense for his services, 
 and teaching school for a part of the time. After four years of study, 
 although he had not finished the requisite course, he was admitted to 
 the bar of the Erie county Court of Common Pleas through the in- 
 fluence of friends in Buffalo. Engaging in practice at Aurora, he won 
 his first case, receiving a fee of $4, and in 1827 and 1829, respectively, 
 was admitted an attorney and a counsellor of the Superior Court. 
 Removing to Buffalo in 1830, he soon after established a copartnership 
 with Nathan K. Hall, in which Solomon G. Haven subsequently joined. 
 From that time until 1847 Mr. Fillmore's firm (Fillmore, Hall & Haven) 
 was one of the most prominent law firms in western New York, being 
 retained in practically every important case arising there. He was 
 rated as a lawyer of thorough learning and sound qualities, and his 
 legal career and reputation formed the basis for all the political dis- 
 tinctioD that he attained. 
 
 His active professional practice was soon interrupted by his duties 
 in various public offices. He represented Erie county, as a whig mem- 
 ber, in the legislature from 1828 to 1831. During his service in that 
 body he was the author, jointly with John C. Spencer, of the act abol 
 ishing imprisonment for debt (passed in 1831). He was elected to con- 
 gress in 1832, and re-elected in 1836, 1838 and 1840. He was chairman 
 of the ways and means committee of the house of representatives in 
 the 27th congress, and was the principal framer of the tariff of 1842- 
 As the head of the ways and means committee he procured the pas- 
 sage of a resolution requiring the government departments, in submit- 
 ting estimates of expenses, to make reference in all cases to the laws 
 authorizing them. Declining a renomination, he retired from congress 
 in 1843, having made a reputation as one of the ablest members of the 
 legislative branch of the government, in 1844 he was a candidate for 
 the whig nomination for vice-president, but was defeated in the con- 
 vention. In the fall of that year he was nominated unanimously by 
 the whigs for governor of New York. He was beaten at the polls by 
 the democratic candidate, Silas Wright. In 1847 was elected state 
 comptroller, and in 1848 was nominated and elected vice-president of 
 the United States on the ticket with General Taylor. President Taylor 
 died on July 9, 1850, and on the next day Mr. Fillmore qualified as 
 his successor. 
 
328 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 The administration of President Fillmore is memorable chiefly for 
 the adoption of the compromise measures, including the fugitive slave 
 law. These measures were not originated by the political party for 
 which the administration stood ; for the democrats were in the ascend- 
 ency in both houses of congress. But the president, having been 
 assured by the attorney -general that the fugitive slave law was a con- 
 stitutional act, signed it. In this he had the unanimous approval of 
 his cabinet, of which Daniel Webster was the head. But his course 
 proved very distasteful to the people of the north, so much so that in 
 the whig national convention of 1852 he received only twenty votes 
 from the free states for the presidential nomination. Aside from its 
 policy on the slavery question, the Fillmore administration gave gen- 
 eral satisfaction to the country. Some of its leading events were the 
 inauguration of the system of cheap postage, the laying of the corner- 
 stone of the capitol extension, the negotiation of the Perry treaty, by 
 which the Japanese ports were opened to our trade, and a strong re- 
 affirmation of the time-honored doctrine of non-intervention in the 
 concerns of European nations. Mr. Fillmore's public career ended with 
 his retirement from the presidency on March 4, 1852, and although 
 nominated by the " American " party in 1856 as its presidential can- 
 didate, he received the electoral vote of only one state (Maryland). 
 
 In the closing period of his occupancy of- the executive office, 
 Mr. Fillmore contemplated resuming the practice of the law, and, his 
 old Buffalo firm having been dissolved, he arranged to open a law 
 office in New York City in partnership with Judge Henry E. Davies, 
 of the Court of Appeals. But being soon afterward sadly bereaved 
 by the death of his wife, he changed his plans and retired to private 
 life, from which he never afterward emerged. 
 
 ISH, HAMILTON (born in New York City, August 3, 1808 ; 
 died in Garrison, New York, September 7, 1S93), was a son of 
 Nicholas Fish, an officer of the Revolution and a prominent 
 public man and citizen of New York. ' He was graduated in 
 1827 from Columbia College, and in 1830 was admitted to the bar, becom- 
 ing soon prominent in his profession. He entered actively into politics 
 as a whig, and speedily took a leading place in the party. He was elected 
 to congress in 1842. He was a candidate for lieutenant-governor in 
 1846, and although defeated was chosen to the office the next year to 
 fill a vacancy. In 1848 he was elected governor over John A. Dix and 
 Reuben H. Walworth, receiving a majority of 30,000. In 1851 he suc- 
 
 1 Nicholas Fish was born in New York City, August of Alexander Hamilton, for whom his son was named. 
 28, 1758, and died there June 20, 1833. He studied law He was adjutant-general of the State of New York for 
 in the office of John Morin Scott. He was in active many years, an alderman of New York City, and super- 
 service throughout the Revolution, and distinguished visor of reveuue under Washington. He served as 
 himself by gallantry and ability. Ho possessed the president of the New York Soeiely of the Cincinnati, 
 confidence of Washington, and was an intimate friend 
 
HISTORY OF THE BENCH ASD BAR OF NEW YORK 
 
 329 
 
 ceeded Daniel S. Dickinson in the United States senate. He affilated 
 with the republican party from the time of its organization. He was 
 conspicuous during the presidential compaign of 1860 in promoting 
 the election of Mr. Lincoln. In 1882 he was sent, with Bishop Ames, 
 as a commissioner to visit the United States soldiers confined at Rich- 
 mond and elsewhere, " to relieve their necessities and provide for their 
 comfort," and the result of this mission was an agreement, which lasted 
 throughout the war, for exchanging prisoners. Upon the organization 
 by President Grant of his first cabinet in 
 1869 Mr. Fish was appointed secretary of 
 state, and he retained that office until the 
 close of General Grant's presidency, a 
 period of eight years. 
 
 The career of Hamilton Fish as secre- 
 tary of state was marked by the determi- 
 nation of a number of very grave inter- 
 national questions. He was one of the 
 commissioners on behalf of the United 
 States in the negotiation of the treaty of 
 Washington of 1871 ; he settled the old 
 northwestern boundary controversy with 
 Great Britain ; he adjusted the critical 
 questions between the United States and 
 Spain growing out of the Cuban insurrec- 
 tion, and it was at his instance that the Geneva tribunal for the 
 settlement of the "Alabama claims" incorporated in its decisions a 
 provision securing this country against claims for indirect damages 
 resulting from Fenian raids or Cuban filibustering expeditions. 
 
 Mr. Fish's preference for public life, and the official duties that he 
 was called upon to discharge, removed him from the formal practice 
 of his profession at a comparatively early age. He was at one time in 
 partnership with William Beach Lawrence. As a lawyer he devoted 
 himself exclusively to office practice, acting as counsellor rather than 
 advocate, giving his attention chiefly to real estate, in which he was 
 well versed and of which he was a large holder. For several years he 
 was president of the New York Historical Society. 
 
 NICHOLA3 FISH. 
 
 ITHIAN, FREEMAN J. (born in Erie, Pennsylvania, in Octo- 
 ber, 1822 ; died in New York City, August 4, 1884), studied 
 law in the office of Judge Gardner at Lockport, New York, 
 and practiced in that place for seven years, when he removed 
 to Buffalo, forming an association with Eli Cook. While residing in 
 Buffalo he served as district-attorney of Erie county. He next came ^ 
 to New York City, where in 1868 he was appointed justice 'of the 
 Superior Court, a position which he filled until January, 1870. After- 
 
330 HISTORY OF THE BENCH AND BAB OF NEW YOKK 
 
 ward resuming the practice of his profession, in partnership with 
 Lemuel B. Clark, he was counsel in many suits involving large 
 amounts of money. He was the attorney for Daniel Drew. One of 
 his celebrated cases was that of the New England Iron Company 
 against the Elevated Railroad Company, to recover $6,000,000 for 
 alleged breach of contract. The trial of this case lasted twenty-one 
 days, resulting in a disagreement. 
 
 ITZHUGH, SAMUEL H. (born at the Hive, Washington 
 county, Maryland, February 22, 1796), was graduated from 
 Jefferson College, Pennsylvania, in June, 1816, and im- 
 mediately afterward entered the law office of Judge Howell, 
 of Canandaigua, New York. He was called to the bar in 1817, removed 
 to Wheeling, Virginia, and engaged there in successful practice, his 
 reputation extending to Pennsylvania. He removed in 1831 to Mount 
 Morris, Livingston county, New York, where for a time he speculated 
 in land. In 1840 he was appointed associate- judge of the Livingston 
 county Common Pleas Court. He served with conspicuous ability on 
 that bench, before which the leading lawyers of western New York 
 constantly appeared. For several years afterward Judge Fitzhugh 
 practiced at the bar, and controlled a large and remunerative business. 
 
 OLGER, CHARLES JAMES (born in Nantucket, Massachu- 
 setts, April 16, 1818 ; died in Geneva, New York, September 
 4, 1884), was graduated from Geneva College (now Hobart 
 College) at the age of eighteen. He then went to Canan- 
 daigua and engaged in the study of the profession of the law. In 1839 
 he was admitted to the bar in Albany, after which he practiced for a 
 while in Lyons, New York. In 1840 he removed to Geneva. He was 
 chosen to the Common Pleas bench of Ontario county in 1843, served 
 also as master and examiner in chancery, and was county judge from 
 1852 to 1 856. In 1854 he severed his connection with the democratic 
 party and joined the republican organization. For thirteen years after 
 his retirement as judge of Ontario county he diligently and success- 
 fully practiced his profession, making a reputation as one of the best 
 lawyers of the state. He continued, however, to take a decided 
 interest in public affairs, serving as state senator from 1861 to 1869, being 
 chairman of the judiciary committee of the senate throughout that 
 period, and president pro tempore for four years. In the constitutional 
 convention of 1867 he was chairman of the judiciary committee. From 
 1869 to 1870 he was assistant-treasurer of the United States in New 
 York City. 
 
 In 1871 Judge Folger was elected a member of the Court of 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 331 
 
 Appeals. He served as an associate-judge of that court with eminent 
 ability, and was promoted to the place of chief-judge in 1880, to suc- 
 ceed Sanford E. Church. At the fall election of that year he was 
 chosen by the people for a term of fourteen years. But the fascinations 
 of high political office proved irresistible to Judge Folger, and being 
 offered the position of secretary of the treasury by President Arthur 
 in 1881, he resigned his distinguished judicial station to accept it. 
 This proved to be the initial step in a succession of momentous and 
 far-reaching political events. Secretary Folger was nominated in 1882 
 for governor of New York by the republican party, but it was felt by 
 the public that the methods by which his nomination was brought 
 about constituted an unwarrantable interference by the federal admin- 
 istration in the politics of the state, and his democratic opponent, 
 Grover Cleveland, was elected by the enormous majority of 192,000 — a 
 result which paved the way for the national defeat of the republicans 
 in 1884 and for the long public career of Mr. Cleveland. 
 
 Judge Folger continued at the head of the treasury department 
 until his death. 
 
 OOT, SAMUEL ALFRED (born in Wethersfield, Connecticut, 
 December 19, 1790 ; died in Geneva, New York, May 11, 1878), 
 was graduated from Union College and studied law in Albany, 
 where his brother, Ebenezer Foot, was an eminent practitioner. 
 He was admitted to the bar in 1813, and speedily made for himself a 
 reputation of much distinction. He become district-attorney of 
 Albany county in 1819. In 1825 he removed to New York and estab- 
 lished a copartnership with Judge William Kent. Subsequently he 
 was associated with his nephew, Henry E. Davies, and still later with 
 Honorable William E. Curtis. For nearly twenty years he was a 
 prominent figure in the metropolis, not only at the bar but as a citizen. 
 In 1844 he went to reside at Geneva, New York, and three years later 
 he was appointed a judge of the Court of Appeals, occupying the 
 position until 1852. During the administration of President Tyler he 
 was very prominently mentioned for a place on the bench of the 
 United States Supreme Court, but the president preferred another for 
 that office. From 1855 to 1857 he served in the assembly. He was a 
 delegate to the constitutional convention of 1867. Originally a 
 democrat, he became in later years a whig and then a republican. In 
 1876 he wrote a reply to Judge Jeremiah S. Black's views on the elect- 
 oral commission which attracted wide attention. He wrote and 
 published his autobiography, in two volumes (privately printed, 1872). 
 As a lawyer and jurist Judge Foot always occupied a command- 
 ing position. He continued in active practice to the end of his life, and 
 at the time of his death probably was the oldest practicing member of 
 the state bar. 
 
332 
 
 HISTORY OP THE BENCH AND BAB OE NEW YORK 
 
 OSTER,' HENRY ALLEN (born in Hartford, Connecticut, 
 May 7, 1800 ; died in Rome, New York, May 12, 1889), was 
 educated in the common schools of Cazenovia, New York, 
 sJ studied law in the office of David B. Johnson, and was admit- 
 ted to the bar in 1822. He took an interest in politics, as a democrat, 
 at an early age, was a member of the state senate from 1831 to 1834 
 and from 1841 to 1844, served in congress from 1837 to 1839, and was 
 appointed senator of the United States in 1844 as successor to Silas 
 Wright, Junior, continuing in that office until 184^ In 1853 he was 
 appointed by President Pierce United States district-attorney of 
 northern New York, but he declined. He was twice appointed sur- 
 rogate of Oneida county. He was the last surviving member of the 
 " Albany Regency," the combination of democratic leaders which for 
 so many years controlled the state. In 1863 he was elected justice of 
 the Supreme Court for the 5th judicial district. 
 
 Senator Foster was a man of much talent, as a lawyer, a judge and 
 a politician and legislator, but possessed a domineering nature and 
 manifested at times a somewhat violent temper. He continued to 
 practice law until a few years before his death. 
 
 OSTER, JACOB POST GIRAUD (born in New York City, 
 April 8, 1827 ; died there, February 26, 1886), was one of the 
 most prominent practitioners at the metropolitan bar in the 
 special department of insurance law. He was graduated 
 from Columbia College in 1844 with the first honors, went through the 
 Harvard Law School and was admitted to the bar in 1848. 
 
 URMAN, GABRIEL (born- in Brooklyn, New York, January 
 23, 1800 ; died there, November 11, 1854), was a Brooklyn 
 lawyer of great natural ability, whose promising career, how- 
 ever, was marred by the opium habit. He became a justice 
 of the Brooklyn Municipal Court in 1827, serving for three years, and 
 from 1839 to 1842 was a member of the New York state senate. He 
 was an unsuccessful candidate, on the whig ticket, for lieutenant-gov- 
 ernor in 1842. In 1824 he published " Notes, Geographical and His- 
 torical, Relative to the Town of Brooklyn." He made elaborate and 
 valuable researches concerning the history of Long Island and Brook- 
 lyn, and left manuscripts which have proved highly useful to subse- 
 quent investigators. 
 
 ARDINER, ADDISON (born in Rindge, New Hampshire, 
 March 19, 1797 ; died in Rochester, New York, June 5, 1883), 
 one of the most distinguished of the lawyers of western New 
 York, was taken by his parents when quite young to Manlius, 
 New York, where his father located. The father became a friend of 
 
HISTORY OF THE BENCH AND BAE OF NEW YORK 333 
 
 Colonel Seymour, the father of Horatio Seymour. Young Gardiner 
 received his early education at the Manlius Academy and afterward 
 entered the senior class of Union College, where he graduated in 1819. 
 After his graduation he returned to Manlius and began the study of 
 law. While a law student he made the acquaintance of Thurlow 
 Weed, who was at that time a young journalist in Manlius. A friend- 
 ship sprang up between the two young men which lasted all their 
 lives. Mr. Weed in subsequent years often spoke in the highest terms 
 of Mr. Gardiner's abilities. The foundations of his legal learning were 
 laid deep. He read not only Blackstone, but Coke, Bracton, Lyttleton, 
 Fleta, and others of the old sages of the common law. From these 
 sources he learned that " root of the matter " which so distinguished 
 him in after life. He was admitted to the bar in 1822, and at once moved 
 to Rochester, where he was chosen justice of the peace. He early dis- 
 tinguished himself at the bar, trying cases in conjunction with or 
 opposed to the most eminent lawyers of western New York. He was 
 appointed district- attorney for Monroe county in 1825. Soon after he 
 began practice he formed a partnership with Samuel L. Selden, and 
 later Henry R. Selden became a member of the firm. The Selden 
 brothers, then young, became among the most distinguished lawyers 
 of New York, both rising to the bench of the Court of Appeals. The 
 firm rapidly made its way to the front and soon monopolized most of 
 the profitable practice in Rochester. 
 
 In 1829 Mr. Gardiner was appointed a circuit judge for what was 
 then known as the 8th circuit, which was composed of most of the west- 
 ern New York counties. He held court in all these counties for nearly 
 nine years, when he resigned his seat on the bench and resumed prac- 
 tice at Rochester. While acting as circuit judge he presided at the 
 trial of the People vs. Mather, tried in the Orleans circuit in Novem- 
 ber, 1829. This was a cause celebre in western New York. Mather 
 had been indicted as one of the abductors of William Morgan. The 
 trial occupied ten days and Mather was acquitted. Owing to the pop- 
 ular excitement and hatred against the prisoner the trial of the case 
 was exceedingly difficult, but Judge Gardiner gave a perfectly fair and 
 impartial hearing to both the state and the prisoner. Eminent counsel 
 were engaged on both sides of the case, among them John C. Spencer, 
 special attorney-general for the state. Mr. 'Spencer was dissatisfied 
 with one of Judge Gardiner's rulings and took the point by appeal to 
 the general term of the Supreme Court, which sustained the ruling. 
 The case on appeal is reported in 4 Wendell, 229, William L. Marcy 
 delivering the opinion. 
 
 In 1844 Judge Gardiner was elected lieutenant-governor of the 
 state on the ticket with Silas Wright. In 1847 he was chosen a iudge 
 of the Court of Appeals, resigning as lieutenant-governor. He was thus 
 an original member of the newly-born court of final jurisdiction, whose 
 duty it was to decide the questions arising under the new scheme of 
 
334 HISTOKY OF THE BENCH AND BAR OF NEW YORK 
 
 judicial arrangement and to apply the provisions of the new code of 
 procedure. He served as a judge of the Court of Appeals until 1855, 
 declining a renomination . His opinions may be found in volumes 1 to 
 13, inclusive, of the reports of the Court of Appeals. 
 
 After he retired from the bench he continued to practice in Roches- 
 ter until his death. He was regarded as the Nestor of the bar of west- 
 ern New York, and lawyers constantly consulted him when in difficul- 
 ties about their own cases. He played the role of a distinguished 
 barrister in the latter years of his life. 
 
 ARVIN, SAMUEL B. (born in Butternuts, Otsego county, 
 New York, in 1811 ; died June 28, 1878), studied law and 
 was admitted to the bar in Norwich, New York, and in 1840 
 removed to Utica. In 1850 he was elected district-attorney 
 of Oneida county, and in 1856 he was appointed by President Pierce 
 United States district attorney for northern New York. He resigned 
 after two years, and, going to New York City, entered the firm of 
 Schaeffer, Garvin & Dodge. He was elected judge of the Superior 
 Court in 1 862, but resigned the position before completing his term. 
 Governor Hoffman appointed him district-attorney of New York City 
 to fill a vacancy, and he was afterward elected to that office for a full 
 term. 
 
 ATES, SETH MERRILL (born in Winfield, Herkimer coun- 
 ty, New York, October 16, 1800 ; died in Warsaw, New York, 
 August 24, 18T7), was admitted to the bar in 1827, and for 
 fifteen years practiced in Le Roy, New York, removing 
 from there to Warsaw. He was a member of the legislature in 1832, 
 and of congress from 1839 to 1841. While in the legislature he took a 
 prominent part in the granting of the charter for the first railway in 
 the western part of the state. He was successful in his profession, and 
 was also widely known for his aggressive anti-slavery views. During 
 his service in congress, in 1843, he wrote the protest of the whig mem- 
 bers of congress against the annexation of Texas, the authorship of 
 which has by some writers been mistakenly attributed to John Quincy 
 Adams. He was the free-soil candidate for lieutenant-governor in 1848. 
 
 ERARD, JAMES WATSON (born in New York City in 1794 ; 
 died there, February 7, 1874), was graduated from Columbia 
 College in 1811, and received his preparation for the bar in 
 the law office of George Griffin. He advanced to the fore- 
 most rank of the profession, and for years was one of the most 
 prominent men of New York, both as a lawyer and as an active and 
 useful citizen. He continued in the practice of the law until 1869, It 
 
IIISTOKY OF THE BENCH AND BAR OF NEW YOKK 335 
 
 was mainly to his efforts that the adoption of uniforms for the police 
 force was due. He was an earnest and intelligent advocate of measures 
 of practical philanthropy. He originated the system of houses of 
 refuge for juvenile delinquents, and took the leading part in obtaining 
 the incorporation of such an institution in New York in 1824. He 
 manifested a keen interest in public education, and the only offices he 
 could be prevailed upon to accept during his life were those of school 
 trustee and inspector. 
 
 IFFOKD, GEORGE (born in Dutchess county, New York, in 
 1811 ; died in Jersev City Heights, July 2, 1883), became at 
 an early age a student of the law at New Paltz, Ulster county. 
 Devoting himself specially to patent law, he built up a repu- 
 tation as one of the leading patent lawyers of the day, and he was con- 
 nected with practically all the important litigations on patents relating 
 to the various applications of electricity. As early as 1856 he was the 
 senior counsel of Elias Howe, and as his representative, and sub- 
 sequently as counsel for the combination composed of the Singer, 
 Wheeler & Wilson and the Grover & Baker sewing-machine com- 
 panies, he successfully sustained the monopoly until the expiration of 
 the patents. In the meantime he acted both as referee to settle the 
 internal disputes of the companies and as receiver for the collection 
 and distribution of their moneys. 
 
 OULD, WILLIAM (born in Caldwell, New Jersey, in 1814 ; 
 died in July, 1886), was a noted law-book publisher of 
 New York City. His ancestry lived for a century in Cald- 
 well, New Jersey. William came to New York City in 
 1836 and engaged in the law-book publishing business with his uncle, 
 William Gould. Another uncle had begun law-book publishing 
 in New York toward the end of the eighteenth century, his establish- 
 ment being the second of its kind in the United States. (The first was 
 in Philadelphia.) The firm started by the uncle and nephew in 1836 
 became William & A. Gould & Co., and then Gould, Banks & Co. 
 Afteward William Gould the younger associated his son with him in 
 the firm of William Gould & Son. 
 
 RAHAM, DAYID (born in London, England, February 8, 
 1808 ; died in Nice, Prance, May 27, 1852), was a son of 
 David Graham, an early nisi prius practitioner of note. 1 
 He was carefully ed ucated by his father, was admitted to the 
 
 1 David Graham, the elder, was born in the north of braced the legal profession, and he became very promi- 
 
 Ireland in 1777, and was educated as a presbyterian nent at the metropolitan bar, being especially dis- 
 
 clergyman. He was fast becoming recognized as a tinguished as an orator and for the masterly construction 
 
 brilliant pulpit orator, when he was obliged to emigrate of his arguments. He was also an accomplished 
 
 to America for political reasons. His son was bom scholar. He died in New York City in 1839. 
 while he was preparing to leave. In New York he em- 
 
336 HISTORY OF THE BENCH AND BAB OF NEW YORK 
 
 bar upon attaining his majority, and soon began to rival his father. At 
 the age of twenty-four he was appointed one of a committee of lawyers 
 to prepare a new city charter that was intended to supersede the old 
 royal instrument and to be submitted to popular vote. At the age of 
 thirty-eight he was selected by legislative act, with Arphaxad Loomis 
 and David Dudley Field, a commissioner to compile a code of criminal 
 procedure — the germ of the code now in statutory use in the state of 
 New York. He also early compiled and published a law book of 
 practice — "Practice of the Supreme Court of the State of New York" 
 (1832), — which for two decades following was a standard authority. 
 Although he was a master of civil procedure, his taste, like that of the 
 elder Graham, inclined to the department of criminal jurisprudence. 
 Both father and son possessed great magnetism of manner, adroitness 
 and other qualities which peculiarly adapted them for criminal practice. 
 Early in his career, by his successful defence of Ezra White in a 
 sensational murder case, he attracted attention. Soon after he de- 
 fended Polly Bodine, accused of murder, securing at the first trial a 
 disagreement of the jury, at the second, which resulted in conviction, 
 an order for a new trial, and at the third the acquittal of his client. 
 These successes established his reputation, and ever afterward he en- 
 joyed a wide and lucrative practice. His defence of Bishop Onder- 
 donk in his trial before the hOuse of bishops in 1844 was another of 
 his celebrated cases. 
 
 To a certain extent be was interested in politics, being chosen 
 alderman and corporation counsel (1842), but he declined all proffered 
 political offices that would have withdrawn him from his profession. 
 He was a whig, devoted to Webster and Clay, and rendered able and 
 effective service in the Harrison and Tyler campaign. He was a figure 
 in the social life of New York, and was a highly pleasing speaker on 
 public and festive occasions. 
 
 Early in 1852 failing health compelled him to abandon his pro- 
 fession. He sought restoration in travel, but died in the spring of the 
 same year. 
 
 In addition to his important work on practice, he published " New 
 Trials " (1834, subsequently enlarged by his son and Thomas Watter- 
 man, and republished in three volumes in 1856), " Courts of Law and 
 Equity in the State of New York " (1839), and an annotated edition of 
 Smith's " Chancery Practice " (1842). 
 
 BAHAM, JAMES, the first recorder of the City of New York, 
 was a native of Scotland. Coming to New York, he became 
 a prominent merchant and citizen. His will is on file in the 
 surrogate's office, dated January 12, 1700-1. He was ap- 
 pointed by Governor Donganto the office of recorder, serving, with the 
 exception of two years, from January 14, 1683, to October, 1700. He 
 
HISTOKY OF THE BENCH AND BAB OF NEW YORK 337 
 
 was also speaker of the assembly for nine years— 1691-99. On the day 
 following his appointment as recorder all the new magistrates went in 
 a body to the fort, and, being sworn in before the governor and council, 
 returned and opened court, the recorder " taking his seat on ye right 
 hand of ye mayor." The recorder held a Recorder's Court, in which 
 he presided as the chief officer. " As it sat only once in three months, 
 whereas the Mayor's Court sat every two or three weeks, it was deemed 
 a court of a higher grade, in which, at first, the more important civil 
 actions were brought and the principal criminal offences were tried." ' 
 
 RAHAM, JOHN (born in New York City, September 14, 
 1821 ; died there, April 9, 1894), was the second son of David 
 Graham the elder. He entered Columbia College under a 
 special examination at eleven years of age, and was gradu- 
 ated before he was fifteen as valedictorian of his class. He began the 
 study of law in his father's office, but the latter dying in 1839 he fin- 
 ished his studies with his brother David, and was admitted to the bar 
 in 1842. One of the earliest cases of note in which John Graham ap- 
 peared was with his brother in the defence of John S. Austen, a mem- 
 ber of the Empire club, for the murder of Shea. He also defended 
 Donaldson. His first great case, which attracted the attention of the 
 entire country, was the defence of Daniel E. Sickles for the killing of 
 Francis Barton Key in Washington on February 27, 1859. James T. 
 Brady, Stanton Bradley, and Peter Cagger were the other lawyers for 
 Sickles. Another case of wide interest eleven years later was the de- 
 fence of Daniel McFarland for killing A. D. Richardson in the Tribune 
 office, November 25, 1869. During this trial he said: "This is the 
 third occasion within twelve years on which, although a single man 
 myself, I have had the distinguished honor conferred upon me of up- 
 holding and defending the marriage relation. Within that period the 
 three most exciting trials have occurred in this country which have 
 ever occurred, and it has been my privilege to appear in every one of 
 them." The intervening suit was the Strong divorce case, in which 
 Mr. Graham defended Mrs. Strong and established her innocence. 
 Among other famous suits were the Arnold divorce case, the celebrated 
 Hunt divorce case, the first trial of Tweed, the defence of General Alex- 
 ander Shaler, and of Jaehne, the boodle alderman. He occupied the 
 place of prosecutor in a capital case but once. He argued the case of 
 Rogers, as state counsel, before the Court of Appeals, carried up on the 
 question whether intoxication is an absolution for the crime of murder, 
 and secured Rogers' conviction and hanging. He said afterward : " I 
 have defended many a man for nothing to clear my conscience of the 
 burden of sending Rogers to the gallows. " 
 
 In 1850 he was a candidate for district-attorney, but being bitterly 
 
 > Judge Charles P. Daly's " Historical Sketch of the Judicial Tribunals of New York," pp. 33, 35 
 
338 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 opposed by the elder Bennett;, whom he attacked on the street, the 
 campaign resulted in his defeat. He then resolved never again to be a 
 candidate for public office. He was a member of the Law Institute, 
 but refused to join any of the bar associations or social clubs and re- 
 mained a bachelor. He was an eloquent speaker, but his great strength 
 lay in the logic of his defences and his boldness. 
 
 RAHAM, JOHN LORIMER (born in London, England, 
 March 20, 1797 ; died in Flushing, Long Island, July 22, 
 1876), was a son of Doctor John A. Graham, who early in the 
 century was a practitioner in the criminal courts. He began 
 the study of law in the office of Judge Tapping Reeve, of Litchfield, 
 Connecticut, and completed it under John Anthon in New York, being 
 admitted to the bar in 1821. He was prominent in the department of 
 mercantile law, being successively at the head of- the conspicuous firms 
 of Graham, Noyes & Martin and Graham, Wood & Powers. He added 
 largely to the fortune left him by his father, and became one of the 
 wealthy men of the city. In 1834 he was appointed regent of the state 
 university, and in 1840 postmaster of New York. In 1861 he accepted 
 a confidential position in the treasury department at Washington, 
 which he held for several years. 
 
 RANGER, FRANCIS (born in Suffield, Connecticut, December 
 1, 1792 ; died in Canandaigua, New York, August 28, 1868), 
 was a son of Gideon Granger (q. v.). At the age of nineteen 
 he was graduated from Yale College, and preparing himself 
 for the law he entered upon its practice at Canandaigua in 1814, «oon 
 gaining a position of prominence at the Ontario bar. Identifying him- 
 self with the whig party, he was repeatedly elected to the state legisla- 
 ture, and he became one of the chief leaders of the whig organization, 
 being twice nominated for governor, although he was defeated both 
 times, He was the unsuccessful whig candidate for vice-president of 
 the United States in 1836. From 1839 to 1841 he served in the national 
 house of representatives. He was appointed postmaster-general in the 
 cabinet of President W. H. Harrison, resigning that office after the re- 
 construction of the cabinet by Tyler. Offered a foreign mission by the 
 new president, he declined the place, and soon afterward he resumed 
 his service in congress, remaining in that body till the close of the 
 27th congress. He was one of the most popular political leaders 
 of his times and was on terms of intimate friendship with the most 
 distinguished statesmen of that period. After leaving congress he 
 retired to private life, but in 1861 he accepted an appointment from 
 the governor of New York as a member of the peace convention held 
 at Washington in February of that year. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 339 
 
 RANGER, GIDEON (born in Suffield, Connecticut, July 19, 
 1767 ; died in Canandaigna, New York, December 31, 1822), 
 was graduated from Yale College in 1787, was admitted to 
 the bar, and for nearly fifteen years was a very prominent 
 lawyer of Connecticut. He was a leading member of the legislature of 
 that state, his name being especially identified with the origination of 
 the school fund. In 1801 he was appointed postmaster-general in the 
 cabinet of President Jefferson, a position which he held continuously 
 for thirteen years. Retiring from that office in 1814 he settled in Can- 
 andaigua, New York. Although he did not resume in this state the 
 active practice of the legal profession, he was prominent in its public 
 affairs, being a member of the senate, in which body he gave valuable 
 assistance to the internal improvement policy of his friend, De Witt 
 Clinton. He was a political writer, publishing " Political Essays " 
 over the signatures of Algernon Sydney and Epamminondas. 
 
 RAY, HIRAM (born in Salem, Washington county, New 
 York, in 1801 ; died in Elmira, New York, May 6, 1890), was 
 of Scotch-Irish descent. He was graduated at Union College 
 in 1821, studied law in the office of Chief- Justice Savage at 
 Salem, New York, and was admitted to practice in the Supreme Court 
 in 1823. In 1825 he formed a copartnership with Theodore North, 
 under the name of North & Gray, at Elmira, then the village of New- 
 town. In 1836 he was elected to the state senate, and after leaving 
 that body he was appointed circuit judge and vice-chancellor of the 
 6th judicial district. He was elected a justice of the Supreme Court 
 in 1847, and re-elected for a term of eight years in 1851. In 1869 he 
 became a member of the commission of appeals, serving from January, 
 1870, until the termination of the commission's existence in 1875. In 
 politics Judge Gray was a democrat. His long and important judicial 
 career was marked throughout by ability and high integrity. 
 
 REEN, ROBERT STOCKTON (born in Elizabeth, New 
 Jersey, March 25, 1831; died there, May 7, 1895), was 
 descended from an eminent New Jersey family.' He was 
 graduated from Princeton College in 1850 and admitted to 
 the bar in 1853. As a young man he held several city and county 
 ofeces. In 1862 he was elected surrogate of Union county, and in 
 1868 he became presiding judge of the Court of Common Pleas 
 and the County Courts. He was appointed in 1873 by Governor 
 
 ' His great-grandfather, Reverend Jacob Green, was dent of Princeton College from 1812 to 1822, and wrote 
 
 elected president of the College of New Jersey in 1757, voluminously on religious subjects. The father of 
 
 was chairman of the committee that drafted the New Robert S. was James S. Green, a New Jersey lawyer 
 
 Jersey constitution in the provincial congress of 1775, of prominence, 
 ana was an able writer, Jacob's son, Asjjbel, was pregi- 
 
340 HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 Parker one of the commissioners to suggest amendments to the state 
 constitution. In 1886 he was elected governor of the state. Retiring 
 from that office he received the appointment, in 1890, of vice-chancellor 
 for a term of seven years ; and in 1894 he was made judge of the 
 Court of Errors to fill the vacancy caused by the death of William 
 Walter Phelps. 
 
 Although Mr. Green's public career was confined to the State of 
 New Jersey, of which he remained a citizen throughout his life, he 
 practiced law in New York, being a member of the widely known 
 firm of Vanderpoel, Green & Cuming. 
 
 RIFFIN, EBENEZER (born in Cherry Valley, New York, 
 July 29, 1789 ; died in Rochester, New York), attended Union 
 College, but did not graduate. He was admitted to the bar 
 in 1811, and practiced for eight years at Clinton, New York, 
 and then at Utica until 1825, when he removed to the City of New 
 York. In 1842 he went to Rochester, where he spent the rest of his 
 life. He was one of the best known advocates of his day, being con- 
 nected with the famous Morgan abduction case, in which he defended 
 Mather, charged with conspiracy, obtaining his acquittal. 
 
 ROVER, MARTIN (born October 20, 1812 ; died in Angelica, 
 New York, August 23, 1875), was a law student in the office 
 of Honorable William G. Angel, whose partner he afterward 
 became in the firm of Angel & Grover. Like his preceptor, 
 he struggled against great disadvantages in his youth, but after his 
 admission to the bar he made his way steadily to a position of the 
 first importance. In 1844 he was elected to congress. He was the free- 
 soil candidate for attorney -general in 1853 but was defeated. He was 
 elected justice of the Supreme Court in 1857 to fill a vacancy, and was 
 re-elected for a full term in 1859. At the expiration of his service on 
 that bench (1867) he was chosen associate-judge of the Court of Ap- 
 peals, and in 1870 he was again elected under the amended judiciary 
 article of the constitution of 1867. 
 
 Martin Grover enjoys a firmly established fame as one of the 
 ablest judges of the State of New York. He was thoroughly grounded 
 in the principles of the law and prompt and discerning in applying 
 them. 
 
 ACKETT, JOHN KETELTAS (born in Utica, New York, 
 February 13, 1821 ; died in New York City, December 26, 
 1879), was a son of James Henry and Katherine Hackett, 
 both of whom were prominent figures in the theatrical pro- 
 fession of their generation. He was graduated from the University of 
 the City of New York in 1837, and after studying for the legal profes- 
 
 s 
 
HISTORY 01' THK BENCH AND BAR OP NKW YORK 341 
 
 sion in Utica was admitted to the bar in Albany. He removed to Cali- 
 fornia in 1850 and lived there for seven years, during which he served 
 the city of San Francisco as corporation counsel. Upon his return to 
 this state he engaged in practice in New York City, of which he be- 
 came corporation counsel in 1868 and recorder in 1866, filling the latter 
 office with ability until his death. 
 
 ALE, ROBERT SAFFORD (born in Chelsea, Vermont, Sep- 
 tember 24, 1822 ; died in Elizabethtown, Essex county. New 
 York, December 14, 1881), was graduated in 1842 from the 
 University of Vermont and was admitted to the bar in 1847 
 at Elizabethtown. He was a conspicuous lawyer and judge of his part 
 of the state, being surrogate and judge of Essex county for eight years 
 from 1856. He was also (1859-81) a regent of the University of the 
 State of New York. He served two terms in congress (1865-67 and 
 1873-75). He was employed by the national government in important 
 cases, being special counsel to defend abandoned and captured property 
 claims (1868-70) and government agent and counsel before the Ameri- 
 can and British mixed commission (1871-73). 
 
 ALL, JOHN PRESCOTT (born in Pomfret, Connecticut, July 
 9, 1796 ; died in Newport, Rhode Island, September 29, 1862), 
 was admitted to the bar soon after his graduation from Yale 
 College (1817). He engaged in practice in New York City 
 and was noted for his versatile abilities, especially for his eloquence 
 as an advocate and public speaker. He published two volumes of 
 " Reports of Cases in the Superior Court of the City of New York, 
 1828-29." In politics he was a whig, and he served as United States 
 district-attorney in New York under Tyler and again under Fillmore. 
 
 ALL, NATHAN KELSEY (born in Marcellus, Onondaga 
 county, New York, March 10, 1810 ; died in Buffalo, March 
 2, 1874), was of very humble birth. His father was a shoe- 
 maker, and Nathan, as a lad, worked at that trade. He en- 
 tered the law office of Millard Fillmore at Aurora, New York, at the 
 age of eighteen, and four years later, having been admitted to the bar, 
 he became Mr. Fillmore's partner in Buffalo. Later he was associated 
 in the same firm with Solomon G. Haven. He held local offices in Buf- 
 falo, and was appointed by Governor Seward master in chancery in 
 1839 and judge of the Court of Common Pleas in 1841. He served a 
 term in the assembly (1S45) and in congress (1847 to 1849), and then 
 returned to his professional practice. In 1850 he became postmaster- 
 general in President Fillmore's cabinet, and from 1852 until his death 
 he was United States judge of the District Court of northern New York. 
 
342 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 ALL, WILLIS (born in Granville, New York, April 1, 1801 ; 
 died in New York City, July 14, 1868), was graduated at 
 Yale College in 1824, and after his admission to the bar in 
 1827 went to Mobile, Alabama, where he practiced law with 
 success. In 1831 he returned to New York, and for a number of years 
 he was active at the metropolitan bar. He was chosen to the assembly 
 in 1837 and 1842, and was attorney-general of the state in 1838-39. In 
 1848 he retired. He was connected with a law school at Saratoga as a 
 lecturer. 
 
 AJVIILTON, ALEXANDER (born in Nevis, an island of the 
 West Indies, January 1 1, 1757 ; died in New York City, July 
 12, 1804), was, according to accepted tradition, the son of a 
 Scotch merchant and a French Huguenot lady. Although 
 the mystery of his birth has never been cleared up, the burden of evi- 
 dence seems to support this tradition and not the story, which has 
 found favor in some quarters, that his mother was an Englishwoman 
 named Lytton. That he had French blood in his veins can hardly 
 admit of doubt. The method of his writing when he became a man and 
 his style in composition, which shows a French clarity, bespeak this. 
 In the case of Coulon vs. Bowne, reported in 1 Caines' Term Reports, 
 283, he made an argument on a matter involving 
 the meaning of the word " since," which was used 
 in an insurance policy. His client was a French- 
 man and had used an equivalent French word. 
 Hamilton showed to the court how the sentence 
 would read in French, and did it in a style that 
 conclusively demonstrated his innate familiarity 
 with French. When he was an aide on Washing- 
 ton's staff, he was used by Washington as a me- 
 dium to communicate orders to the commanders 
 of the French allies. Besides, Hamilton himself 
 often declared that his father was Scotch and his 
 mother was French. Among his contemporaries 
 the doubtful story that he was of illegitimate birth 
 appears to have received considerable acceptation. 
 John Adams, in a letter to Jefferson in 1813, styled 
 him the " bastard son of a Scotch pedler." But, 
 metropolitan museum OF notoriously, Hamilton and Adams were not on the 
 ART " most friendly terms during the latter years of 
 
 Hamilton's life. So far as the evidence goes, the presumption is that 
 his mother's maiden name was Faucette and that she was married to 
 his father. 
 
 His mother died while he was a child, and his father soon there- 
 after became bankrupt. His mother's relatives then took charge of 
 him, and when about twelve years of age was placed by them in a 
 
 STATUE OF ALEXANDER HAM 
 ILTON, ON KNOLL NEAR THE 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 343 
 
 counting-room as clerk to a Nicholas Cruger in Santa Croz. While 
 serving in that capacity he displayed extraordinary ability for one so 
 young. He appears to have managed all the affairs of his employer 
 during the latter's temporary absence. At this time he wrote letters, 
 still extant, which show extreme precocity. In one of them, addressed 
 to an Edward Stevens, who was a student in King's College, New York 
 City, he wrote : " I contemn the grovelling condition of a clerk, or the 
 like, to which my fortune condemns me, and would willingly risk my 
 life, though not my character, to exalt my station. I am confident, 
 Ned, that my youth excludes me from any hopes of immediate prefer- 
 ment, nor do I desire it, but I mean to prepare the way for futurity." 
 While he was acting as clerk he still continued to study, and laid the 
 foundations for a sound literary culture, reading most of the standard 
 authors, both English and classic. Plutarch was apparently his, favor- 
 ite author at this time. While he was in Santa Cruz there was a pres- 
 byterian minister there named Knox. He became acquainted with young 
 Hamilton, and, not- 
 ing his extraordi- 
 nary powers 01 
 mind, used his influ- 
 ence among the 
 boy's relatives to 
 have him sent to col- 
 lege. Reverend Mr. 
 Knox succeeded in 
 raising sufficient 
 funds to send him 
 to the American col- 
 onies, and in Octo- 
 ber, 1772, he arrived 
 
 in Boston, whence he went to New York 
 letters of introduction. 
 
 THE GRANGE, HAMILTON S RESIDENCE. 
 
 There he presented his 
 At that time there was in Elizabethtown, New 
 Jersey, a Latin school of quite considerable reputation, and Hamilton 
 matriculated in it. It may be remarked as a curious coincidence that 
 Hamilton's rival in after life, Aaron Burr, was then living with his 
 uncle in the same town. After a year's study he was prepared to enter 
 college. He first tried Princeton, but did not enter because he wanted 
 to get his degree as rapidly as possible, and the rules of that institution 
 required him to go through the routine of freshman, sophomore, junior, 
 and senior. In 1773 he entered King's College, now Columbia, and 
 prosecuted his studies with ardor. 
 
 Meantime the events of the coming Revolution were hurrying for- 
 ward. The dominant sentiment of New York City was decidedly tory. 
 The legislative assembly were all friends and staunch adherents of 
 King George. But among the masses there was a slumbering feeling 
 against monarchy. The assembly had been importuned to send repre- 
 
344 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 sentatives to the first continental congress. They hesitated. A great 
 meeting was held just outside New York City to urge on the assembly 
 the necessity of falling in line with the other colonies in their opposi- 
 tion to the mother-country. Hamilton was present at this meeting and 
 made a speech. He carried the day. Resolutions were adopted favor- 
 ing the attitude Massachusetts had taken on the Boston port bill, and 
 calling on the assembly to co-operate with the other colonies in their 
 attitude on that measure. Hamilton also wrote pamphlets and articles 
 in defence of American rights, which attracted wide attention. It is 
 beyond question that young Hamilton contributed much of the force 
 which sent New York into the continental congress. 
 
 Before the battle of Lexington was fought he began to study mil- 
 itary tactics. Early in 1776 the New York convention ordered that a 
 
 BAYAllD HOUSE, WHEltE HAMILTON U1ED. 
 
 military company be recruited. Hamilton applied for the command 
 and was made captain on March 14, 1776, when nineteen years old. 
 With his company he fought in the battle of Long Island, accompanied 
 the main army in its retreat from New York City, and took part in the 
 battle of White Plains. He also, with his company, was with the main 
 army of Washington in its retreat across New Jersey, and was at the 
 battle of Trenton. On March 1, 1777, he was appointed one of Wash- 
 ington's aide3, with the rank of lieutenant-colonel. In this capacity 
 he was employed by the commander-in-chief in the most important of 
 military trusts. He attended to all of Washington's correspondence, 
 and all the military orders went through him. The clear and forcible 
 
HISTORY OF THE BENCH AND BAB OF NEW YORK 345 
 
 English in which those orders were couched was due to Hamilton. 
 One piece of conspicuous service which he rendered while aide was of 
 a diplomatic rather than a military nature. He was sent to obtain 
 troops from Gates after the Burgoyne campaign, and succeeded. 
 While he was on this mission at Albany h3 first met his future wife, 
 Elizabeth Schuyler, whom he married in 17S0 while he was still on 
 Washington's staff. As a staff-officer he attended Washington in all 
 his battles and campaigns. One of the incidents of his staff life was 
 his presence with Washington at West Point at the time of Arnold's 
 flight. He has left a graphic picture of Mrs. Arnold's despair, which 
 he witnessed in the Beverley Robinson house opposite West Point. 
 In 1781 he resigned his commission in consequence of a reproof 
 received from General Washington ; but shortly afterward he received 
 command of a New York battalion of infantry, and at the battle of 
 Yorktown he charged the redoubts at the head of his troops. He then 
 returned to New York City and prosecuted his law studies. 
 
 He was admitted to the bar in 1782. While a law student he was 
 appointed continental receiver of taxes for New York, but resigned to 
 take a seat in the continental congress, wherein he served in 1782-83. 
 As a member of congress he was active in having peace restored with 
 England and having the resulting treaty ratified. From 1783 to 1787 
 he was busy practicing law in New York City, but in addition to his 
 extensive practice he occupied himself with schemes to replace the mori- 
 bund continental congress. He wrote pamphlets, letters, and argu- 
 ments in favor of a " more perfect union." He was chosen one of the 
 New York delegates to the constitutional convention held in Philadel- 
 phia, and the part he took in that body belongs to the most important 
 political history of the country. Hamilton bears the same relation to 
 the present federal constitution that Jefferson does to the declaration 
 of independence. No matter how the details of the scheme he proposed 
 were changed by the convention, the salient features were retained, and 
 are to-day regarded as the corner-stone in the construction of that 
 instrument. 
 
 Hamilton retired to New York City after the labors of the convention 
 were ended and wrote the remarkable series of articles in the Federal- 
 ist in behalf of the adoption of the constitution. These articles were 
 spread all through the thirteen colonies and exerted a great influence. 
 He was made by Washington the first secretary of the United States 
 treasury, and as such was the author of the funding system, the 
 founder of the United States bank, and the moving spirit in favor of 
 a central currency. As secretary he sent to congress a " Report on the 
 Public Credit," in which he discussed every phase of the federal finan- 
 cial system, and which conclusively proves him to have been one of the 
 very greatest of our public financiers. In January, 1795, he resigned 
 from the cabinet and resumed the practice of the law in New Yor": 
 City. While practicing he still continued in touch with politics, an . 
 
346 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 by his advice the " Federal party " was formed. To him is attributed 
 the authorship of Washington's "Farewell Address." In 1798, during 
 the troubles with. France, he was made inspector-general of the army, 
 with the rank of major-general. In 1800 he was chosen president of 
 the Cincinnati Society. When Jefferson and Burr had their tie vote 
 in the electoral college, Hamilton used his influence with the represent- 
 atives to have Jefferson chosen, which was done. This was the begin- 
 ning of his fatal quarrel with Burr. Hamilton later prevented Burr 
 from getting the support of the federalists for governor. It is not 
 very profitable to inquire as to the right and the wrong of the Hamil- 
 ton-Burr difficulty. Both were great men. Both were as ambitious as 
 Caesar. To lay the whole blame on Burr is- not warranted by the facts. 
 Hamilton was a fighting man, and his son had been killed in a duel a 
 short time before his own death. The undisputed fact is that Hamilton, 
 in the last four years of his life, had used the most violent language 
 against Burr — such language as at that time warranted a challenge. 
 The challenge was forthcoming and Hamilton accepted it. The parties 
 met at Weehawken on July 11, 1804, and Hamilton was mortally 
 wounded, dying the next day. He was thus cut off in his prime, being 
 but forty-seven years old. 
 
 What he might have become as a public man and statesman had 
 he lived longer is a matter of speculation, but it can be assumed as a 
 matter of absolute certainty that he would have reached the pinnacle 
 of human greatness as a lawyer had he continued to practice. The first 
 five volumes of the New York Reports establish this. Although his 
 arguments are meagrely reported, there is enough in them to show his 
 wonderful grasp of principles. Chancellor Kent, before whom Hamil- 
 ton argued cases while he was a judge of the Supreme Court, enter- 
 tained the most exalted opinion of him. In an address made before the 
 New York Law Association in 1836, the ex-chancellor thus spoke : 
 
 Among his brethren Hamilton was indisputably pre-eminent. He at once rose 
 to the loftiest professional eminence by his profound penetration, his power of analy- 
 sis, the comprehensive grasp and strength of his understanding, and the frank- 
 ness, firmness, and integrity of his character. In reference to his associates we 
 may say of him, as was said of Papinian, omnes longo post se intervallo reliquerit. 
 I have always regarded Mr. Hamilton's argument near the close of his life, in the 
 celebrated libel case of Crosswell, as his greatest forensic effort. The subject, of 
 grave and lofty import, related to the liberty of the press, and to the right of a jury 
 in a criminal case to determine the law as well as the fact. He never in any other 
 of his cases at the bar commanded higher reverenee for his principles or equal 
 admiration of the power and pathos of his eloquence. I also heard him in our 
 mutual youth, in January, 1785, when for the first time I attended a term of the 
 New York Supreme Court, and saw and heard then, in one interesting suit brought 
 to a hearing, how he commanded great attention by his powers of argument and ora- 
 tory. Hamilton was then at the age of twenty-seven. He rose with firmness and dig- 
 nity, and during two hours was fluent, argumentative, ardent, and accompanied with 
 great emphasis of manner and expression. His speech was marked for a searching 
 analysis of the case. He was resisting a motion for a new trial made as against 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 347 
 
 evidence where Hamilton at nisi prius had obtained a verdict rather by the force 
 of his character and the charm of his eloquence than by preponderance of proof. 
 
 Again, in his Commentaries, Chancellor Kent thns speaks of 
 Hamilton : 
 
 If we take the Reports of New York in chronological order, we shall find that 
 the first five volumes occupy the period when Alexander Hamilton was a leading 
 advocate at our bar. That accomplished lawyer (for it is in that character only that 
 I am now permitted to refer to him) showed, by his precepts and practice, the value 
 to be placed on the decisions of Lord Mansfield. He was well acquainted with the 
 productions of Valin and Emerigon; and if he be not truly one of the founders of 
 the commercial law of this state, he may at least be considered as among the earliest 
 of those jurists who recommended those authors to the notice of the profession and 
 rendered the study and citation of them popular and familiar. His arguments on 
 commercial as well as on other questions were remarkable for freedom and energy ; 
 and he was eminently distinguished for completely exhausting every subject which 
 he discussed, and leaving no argument or objection on the adverse side unnoticed 
 and unanswered. He traced doctrines to their source, or probed them to their 
 foundations, and at the same time paid the highest deference and respect to sound 
 authority. The reported cases do no kind of justice to his close and accurate logic, 
 to his powerful and comprehensive intellect, to the extent of his knowledge, or the 
 eloquence of his illustrations. "We may truly apply to the efforts of his mind the 
 remarks of Mr. Justice Buller, in reference to the judicial opinions of another kin- 
 dred genius, that "principles were stated, reasoned upon, enlarged, and explained 
 until those who heard him were lost in admiration at the strength and stretch of 
 the human understanding." 
 
 And still again, in his Commentaries, Kent says : 
 
 A very able discussion of the assumed right to confiscate debts [the claim of a 
 right to confiscate debts, contracted by individuals in time of peace and which 
 remain due to subjects of the enemy at the declaration of war] was made by Mr. 
 Hamilton in the numbers of Camillus, published in 1795. He examined the claim 
 to confiscate private debts, or private property in banks or in public funds, on the 
 grounds of reason and principle, on those of policy and expediency, on the opinion 
 of jurists, on usage, and on conventional law; and his argument against the justice 
 and policy of the claim was exceedingly powerful. He contended it to be against 
 good faith for a government to lay its hands on private property, acquired by the 
 permission or upon the invitation of the government, and under a necessarily im- 
 plied promise of protection and security. 
 
 If any further evidence is needed to support the claim that Hamilton 
 was the foremost practicing lawyer of his time, the case of Kutgers vs. 
 Waddington, tried in the Mayor's Court of the City of New York in 1784 
 before Mayor Duane when he was only twenty-seven years old and had 
 been at the bar only two years, may be instanced. This case brought 
 under discussion the powers of the confederated states and the rights of 
 the individual states, and is especially interesting as it first drew Ham- 
 ilton's attention to the consideration of principles growing out of the 
 union of the states and the establishment of independence— principles 
 which he afterward elaborated in the discussion in the national con- 
 vention of 1787, and which were embodied in the constitution of the 
 
348 HISTORY OF THE BENCH AND BAB OF NEW YORK 
 
 United States. The case was this : On March 17, 1783, an act was 
 passed by the New York legislature, providing that any one who, by 
 reason of the invasion of the enemy, had left his place of abode, might 
 bring an action of trespass and recover damages against any person 
 who had occupied it, or who had injured his real or personal property, 
 or against any one who had received his goods or effects while the 
 same were under the control of the enemy ; and prohibiting the defend- 
 ant from pleading or giving in evidence, as a defence, that the prop- 
 erty was occupied, injured, or destroyed by a military order or com- 
 mand. The action, which was the first under the statute, was brought 
 to recover six years' rent for the occupation by the defendant of a 
 brew-house in New York City, while that city was in the possession of 
 the British. The defendant pleaded the possession of the city by the 
 British army ; a license from the commissary-general to him, a British 
 subject, to use and occupy the place, and also a direct authority from 
 Sir Henry Clinton, the commander-in-chief, to so occupy it ; and finally 
 the treaty of peace, ratified at Annapolis on January 14, 1784, by which 
 all claims that the citizens or subjects of either of the contracting par- 
 ties might have against the other for indemnity 
 were relinquished. The plaintiff demurred. 
 Hamilton was retained by the defendant and 
 made the principal argument, although several 
 great lawyers were associated with him on be- 
 half of the defendant. He contended that the 
 act of the legislature was in violation of the law 
 of nations, which being part of the common law 
 had become by the state constitution the law of 
 the state, and followed it up by an elaborate and 
 masterly exposition of the rights of war and of 
 the relation of belligerents to each other, in their 
 capacity as individuals, when the war is put an end to. He claimed 
 that the defendant was covered and protected by the treaty, and in- 
 sisted that it was not in the power of the state to deprive him of that 
 which the treaty had secured to him. Mayor Duane, in his opinion, 
 upheld Hamilton's position and decided that the statute was uncon- 
 stitutional. This was probably the first case in which an American 
 court pronounced a statute unconstitutional, so it may be seen that 
 Marbury vs. Madison was not the first case in which the constitution 
 was invoked against a statute. 1 
 
 After Hamilton retired from Washington's cabinet he accumulated 
 a large mercantile practice, his familiarity with shipping, acquired 
 when a boy, being of great assistance to him. The cases of Barnewall 
 vs. Church, Lawrence vs. Van Home, Coulon vs. Bowne, and Maggrath 
 vs. Higgins, all reported in Caines' 1st Term Reports, are important 
 ones dealing with questions arising under policies of insurance. The 
 
 1 See Judge Daly's •* Historical Sketch of the Judicial Tribunals of New York," pp. 00-62. 
 
 
 
 
 
 M f - 
 
 
 ^YHwispg 
 
 SfSS®-- 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 349 
 
 two latter cases are instructive as showing Hamilton's trained mind 
 and how he was capable of making fine and subtle distinctions, as also 
 his grasp of the philological meanings of words. In one of these there 
 had been a representation to the effect that " Mr. Coulon is a natural- 
 ized citizen of the United States since the year 1794." It was contended 
 that this vitiated the policy because Coulon after naturalization had 
 ceased to be a citizen. Hamilton argued, and the court sustained him, 
 that the representation only meant that Coulon was naturalized since 
 1794, but it was not necessary for him to have been a citizen " ever 
 since." The case of Henderson vs. Brown, in 1st Gaines' Term Reports, 
 is also an important one. The defendant was collector of the direct 
 continental tax, and entered a theatre and distrained money in that 
 capacity. He was sued in trespass. Hamilton contended that a state 
 court could not enter into any examination of the acts of the mere 
 ministerial officers of the general government, acting under their reve- 
 nue laws. The Supreme Court sustained Hamilton's position. Kent 
 was one of the judges who rendered opinions in this case. 
 
 During Hamilton's practice at the New York bar he had for con- 
 temporaries Aaron Burr, Colonel Troup, Edward Livingston, Brockholst 
 Livingston, Egbert Benson, Morgan Lewis, and Josiah Ogden Hoffman. 
 
 AMILTON, ALEXANDER (born in New York City, in 
 January, 1816 ; died at his country place, " Nevis," near 
 Irvington, New York, December 30, 1890), was the son of 
 James Alexander Hamilton (q. v.) and grandson of the 
 famous Alexander Hamilton. His mother was a daughter of Robert 
 Morris, nearly related to Gouverneur Morris. General Philip Schuyler 
 was his great-grandfather. He was educated at West Point, stand- 
 ing second in a class of fifty when his father withdrew him in his 
 fourth year at the academy. The subsequent two years were spent 
 with his family in Europe. After his return, Washington Irving hav- 
 ing been appointed minister to Spain, Mr. Hamilton accompanied him 
 as secretary of legation and later became charge d? affaires. In May, 
 1844, he left Spain, and after short sojourns in France and England 
 returned to New York to pursue the study of law. 
 
 Mr. Hamilton soon took rank among the recognized lawyers of 
 New York City. He made a specialty of marine insurance, and in this 
 branch— in which his eminent grandfather also excelled — he was con- 
 sidered an authority. His large corporation practice included such 
 clients as the General Mutual Insurance Company, the New Haven Rail- 
 road Company, the Havre Steamship Company, the London, Liverpool 
 and Globe Insurance Company and the Orient Mutual Insurance Com- 
 pany. Mr. Hamilton distinguished himself in the cases, in the United 
 States Supreme Court, of the Orient Insurance Company, Plaintiff in 
 Error, vs. Wright (23 Howard, 401) and the Insurance Companies vs. 
 
350 
 
 HISTORY OF THE BENCH AND BAK OE NEW TOKK 
 
 Wright (1. Wallace, 456). Among his other notable cases were Bar- 
 gett vs. the Orient Insurance Company (3 Bosw., 385), Bunker vs. the 
 same (8 Bosw., 448), Day vs. the Orient (1 Daly, 13), and Ogden vs. the 
 General Mutual Insurance Company (9 Duer, 204). 
 
 Upon the outbreak of the civil war Mr. Hamilton promptly enlisted 
 and served on the staff of Major-General Wood. Loss of health forced 
 him to resign at the expiration of three months' service, however, 
 although he was active in enlisting troops and forwarding supplies 
 until the close of the war. He was president of the Knickerbocker club 
 of New York City, which he was chiefly instrumental in founding, 
 president of the board of trustees of the Astor library, vice-president 
 of the Society of the Cincinnati, and a member of the Association of 
 the Bar. 
 
 HAMILTON, ANDKEW (born in Scotland about 1676 ; died 
 in Philadelphia, August 4, 1741), although a Philadelphia 
 lawyer, never connected with the bar of New York, owes his 
 enduring reputation mainly to his conduct of and triumph in 
 the famous Peter Zenger case, tried in New York City in 1734-35. There 
 has been much historical speculation as to his parentage, but that ques- 
 tion has never been settled satisfactorily. He appeared in Accomack 
 county, Virginia, in 1697, as the manager of a plantation, and afterward 
 married the widow of its proprietor. Having removed to Philadelphia, he 
 became attorney-general of Pennsylvania in 1717. He was a member of 
 the provincial council from 1721 to 1724, was appointed prothonotary of 
 
 VIEW OP NEW TORE, ABOUT 1730. 
 
 the Supreme Court and recorder of Philadelphia in 1724, and was a 
 member of the assembly for Bucks county from 1724 to 1739, being its 
 speaker (with the exception of one year) during the last ten years of 
 his service. The ground on which the state- house, afterward Independ- 
 ence Hall, was erected was purchased by him and his son-in-law, 
 Allen, in 1729, as a spot on which to construct a suitable building for a. 
 legislative hall. 
 
HISTORY OF THE BENCH AND BAR OF NEW TORE 351 
 
 Andrew Hamilton's connection as counsel with the Zenger case was 
 wholly voluntary, without fee or reward of any kind— a circumstance 
 which may quite reasonably be instanced as a very practical support of 
 the claim made in his address to the Pennsylvania assembly in 1739, that 
 it was love of liberty which drew him to the colonies and caused him 
 to abide in them. Peter Zenger, publisher of the New York Weekly 
 Journal, had been placed on trial by the New York authorities for 
 seditious libel because of the free criticisms of official acts which he 
 had printed in his newspaper. His lawyers, James Alexander and 
 William Smith, had been disbarred because of their contention, in 
 court, that the judges were illegally commissioned and therefore not 
 competent to try the cause. Meantime other counsel had been assigned 
 by the chief-justice (He Lancey) to the accused in theirstead. Hamil- 
 ton, taking a keen interest in the case, and appre- ^/~)rrs\ 
 hensive that the new counsel would not have the Jj^j0hfnlj!fcrt 
 courage to manage it according to its merits, as- ' -'-**»«.-«-- 
 sumed charge of it, advancing the argument that the truth of the facts 
 in the alleged libel could.be set up as a defence and that the jury 
 were judges of both the law and the facts — a principle of law not then 
 established in England. Although evidence as to the truth of Zenger's 
 publications was ruled out, Hamilton's line of defence and his eloquent 
 address completely won the jury, and a verdict of not guilty was ren- 
 dered. He was greeted with great acclaim by the people of New 
 York, and throughout the colonies the importance of the victory he 
 had won for the liberty of the press was fully appreciated. Gouver- 
 neur Morris called him " the day-star of the American Revolution." 
 He was presented with the freedom of the Gity of New York, and a 
 resolution was passed by the common council thanking him for his 
 services. 
 
 AMILTON, JAMES ALEXANDER (born in New York City, 
 April 14, 1788 ; died in Irvington, New York, September 
 24, 1878), a son of Alexander Hamilton, was graduated at 
 Columbia College in 1805. served in the war of 1812 as bri- 
 gade major and inspector of New York state militia, and engaged in 
 the practice of the law. He was a respectable figure at the New York 
 bar, and in 1829 became United States district attorney for the south- 
 ern district of the state. 
 
 AMILTON, JOHN CHURCH (born in Philadelphia, August 
 22, 1792 ; died in Long Branch, New Jersey, July 25, 1882). 
 another son of Alexander Hamilton, was graduated from 
 Columbia College, was aide-de-camp to General Harrison for 
 
 a brief time in the war of 1812, and became a lawyer in New York. 
 
 He devoted a large part of his life to literary labors in connection with 
 
352 HISTORY OF THE BENCH AND BAB OE NEW TOKK 
 
 the events of his father's career, publishing a "Life of Alexander 
 Hamilton " (1832-40, 2 vols.) and a " History of the Republic of the 
 United States, as Traced in the Writings of Alexander Hamilton and 
 His Contemporaries " (1850-58). 
 
 AMILTON, PHILIP (born in New York City, June 1, 1802 ; 
 died in Poughkeepsie, New York, July 9, 1884), another son 
 of Alexander Hamilton, studied and practiced law, becoming 
 assistankdistrict- attorney in New York City and judge ad- 
 vocate of the naval retiring board in Brooklyn. 
 
 ■ ~* i. - ^^' 
 
 AND, AUGUSTUS C. (born in Stoneham, Vermont, Septem- 
 ber 4, 1803 ; died in Elizabethtown, New York, March 8, 
 1878), obtained his legal education at Litchfield, Connecticut, 
 and, removing to Elizabethtown, New York, engaged in suc- 
 cessful practice, receiving in a brief time the appointment of surrogate 
 of Essex county. He gradually built up a reputation as one of the 
 ablest jurists of that part of the state. From 1839 to 1841 he was a 
 democratic member of congress, and from 1845 to 1848 served in the 
 senate of New York, being chairman of its judiciary committee. He 
 was a justice of the Supreme Court and judge of the Court of Appeals 
 from 1848 to 1855, but was defeated when a candidate for re-election. 
 From the time of his retirement from the bench until his death he 
 devoted himself to professional practice. 
 
 AND, SAMUEL (born in Elizabethtown, New York, in 1834 ; 
 died in Albany, May 21, 1886), a son of the preceding, was 
 graduated from Hamilton College at an early age, and en- 
 tered the law office of his father in Elizabethtown, where he 
 remained until 1860. He then formed a partnership with John V. L. 
 Pruyn at Albany, and upon Mr. Pruyn's retirement in 1861 became 
 the junior partner of the firm of Cagger, Porter & Hand, which was 
 changed to Cagger & Hand in 1865 upon Mr. Porter's elevation to the 
 bench. The firm again changed in 1865 with the tragic death of Mr. 
 Cagger, Matthew Hale being admitted, and later Nathan Schwartz 
 and Charles S. Fairchild were admitted. The death of Mr. Schwartz 
 and the election of Mr. Fairchild to office left Mr. Hand and Mr. Hale 
 alone in partnership, which continued without further change until 
 dissolved by mutual consent a few years prior to Judge Hand's death. 
 
 Mr. Hand in 1866 was counsel for the city of Albany, and from Jan- 
 uary, 1869, to March, 1872, he was reporter of the Court of Appeals. In 
 June, 1878, he was appointed by Governor Robinson to fill the vacancy 
 on the Court of Appeals bench caused by the death of Associate-Judge 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 358 
 
 Allen. lie held this position until succeeded by Judge Danfortb, who 
 was elected in the fall of 1878. He was a member of the charter com- 
 mission, by appointment of Governor Tilden, of which William M. 
 Evarts was chairman. Although in later years repeatedly offered 
 honorable and lucrative posts, he steadfastly declined them. 
 
 He was recognized as one of the most successful practitioners of 
 his day before the Court of Appeale. His style was clear and forcible, 
 and though not an eloquent speaker he always held attention. He 
 took a prominent part in the Dudley will case, was senior counsel in 
 all the elevated railroad cases of 1S7C, and was principal counsel for 
 the state against Belden and the canal contractors. 
 
 ARISON, RICHARD MORLEY (born in New York City, 
 September 23, 1833 ; died in Astoria, Long Island, December 
 22, 1895), was descended from a distinguished legal family. 
 He was graduated in 1852 at Hobart College, and after 
 studying law with Orlando Mead, of Albany, entered the Albany Law 
 School, from which he graduated in 1859. He began practice in New 
 York in association with his brother, George L. D. Harison, and 
 Gouverneur M. Ogden, his father's former partner. In 1866 he formed 
 a partnership with Honorable Alexander W. Bradford, and upon Judge 
 Bradford's death with Julien T. Davies. Later he joined the firm of 
 Varnum & Turney, which became successively Varnum, Turney & 
 Harison and Varnum & Harison. He was one of the founders of the 
 Association of the Bar and of the Lawyers' Title Insurance Company. 
 
 ARRINGTON, EBENEZER BURKE (born near Lyons, 
 Wayne county, New York, in 1813 ; died in Detroit, Michi- 
 gan, in 1844), was a prominent legal compiler in this state 
 and Michigan, and although he died at the early age of 
 thirty-one performed valuable work. He was admitted to the bar in 
 1837, but had previously, with the collaboration of Oliver L. Barbour, 
 prepared a digest of equity cases, American and English, which was 
 published at Saratoga. He did not actively practice law in the State 
 of New York, removing soon after his admission to the bar to Michigan, 
 where he assisted E. J. Roberts in arranging and indexing the state 
 laws, and from 1839 until his death served as state reporter, publishing 
 "Harrington's Chancery Reports " (Detroit, 1844). 
 
 i His father, William H. Harison, was a highly re- colonial judge of the New York Supreme Court, and 
 
 spccted practitioner in New York, retiring in the early subsequently chief-justice of New Brunswick. 
 
 His maternal grandfather, Thomas Ludlow Ogden, 
 
 °Hie S 'era]iafather was a very eminent lawyer of the was an eminent chamber counsellor, and the latter's 
 
 period immediately following the Revolution, was the father, Abraham Ogden, was United States attorney for 
 
 first United States district*- tomey for the New York the district of New Jersey, and was the son of David 
 
 district (appointed by Washington!, and was recorder Ogden, judge of the Supreme Court of the Province of 
 
 ol the city for many years. New Jersey. 
 His great-grandfather, George Duncan Ludlow, was 
 
jMt- j jBEi 
 
 354 HISTORY OP THE BENCH AND BAR OF NEW YORK 
 
 ARRIS, IRA (born in Charleston, Montgomery county, New 
 York, May 31, 1802 ; died in Albany, December 2, 1875), was 
 the eldest son of Frederick Waterman Harris and Lucy 
 Hamilton. 1 Both his parents were natives of the state. He 
 attended an academy at Homer, New York, and was graduated from 
 Union College, with the first honors, in 1824. He studied law in the 
 offices of Augustus Donnelly at Homer and Chief-Justice Ambrose 
 Spencer at Albany, being admitted to the bar in 1827 and commencing 
 practice in Albany, soon after associating himself with Salem Dutcher. 
 Afterward he was in partnership with Julius Rhodes. He gradually 
 worked his way to the front rank of practitioners, especially excelling 
 in equity practice. He was chosen a member of the legislature in 1844 
 and of the constitutional convention in 1846. In the latter body he 
 was prominent in advocating amendments securing to married women 
 their rights in property inherited and acquired, establishing an elective 
 judiciary, uniting law and equity jurisdiction, and providing for the 
 simplification of pleadings and practice in the courts. In the fall of 
 1846 he was elected to the state senate, but resigned his seat the next 
 spring to become a justice of the State Supreme Court. To this office 
 he was re-elected in - 1851 for a term of eight years. On the bench he 
 displayed superior judicial qualities, being conspicuously fair, lucid in 
 his exposition of the law, and industrious in the dispatch of business. 
 
 In 1861 he was elected by the legislature, after an exciting con- 
 test—his competitors being William M. Evarts and Horace Greeley, — 
 to represent New York in the senate of the United States. In the 
 senate he served on the committees on foreign relations, on the 
 judiciary and on the southern states. He was a close personal friend 
 of President Lincoln, and gave strong support to the great measures of 
 policy. But though an ardent republican, he manifested a dispassionate 
 spirit on a memorable occasion, opposing the effort to expel Senator 
 Bright of Indiana for his action, just before the war, in writing to 
 Jefferson Davis a letter introducing a friend who wished to dispose of 
 what he regarded as a great improvement in firearms. He retired from 
 the senate upon the expiration of his term in 1867. In that year he 
 was a member of the New York constitutional convention. With- 
 drawing from all public employments, he became a lecturer in the 
 Albany Law School (with which he had been connected more or less 
 since 1850), and during the remainder of his life devoted himself to the 
 duties of that position. Throughout his career he took an especial 
 interest in educational work, being identified in an active or honorary 
 capacity with various institutions. 
 
 1 Honorable Hamilton HarriB, the distinguished jurist of Albany, is his brother. 
 
HISTOET OF THE BENCH AND BAR OE NEW YOKE 355 
 
 ASBKOUCK, ABRAHAM BRUYN (born in Kingston, New 
 York, in November, 1791 ; died there, February 23, 1879), 
 was graduated from Yale College in 1810 and was admitted 
 to the bar in 1813 after studying at Hudson, New York, and 
 at Litchfield, Connecticut. He opened a law office at Kingston and 
 was a prominent practitioner there, taking also an interest in politics. 
 He served a term in congress from 1825 to 1827. He was an excellent 
 scholar and was prominent in religious work and in promoting histori- 
 cal research. From 1840 to 1850 he was president of Rutgers College, 
 and he also served as vice-president of the American Bible Society and 
 president of the Ulster county Historical Society. 
 
 ATHEWAY, SAMUEL GILBERT (born in Freetown, Cort- 
 land county, New York, January 18, 1810 ; died in Solon, 
 New York, April 16, 1864), was the son of Major-General 
 Samuel G. Hatheway and Sally Emerson. 1 He enjoyed ex- 
 cellent educational advantages, being graduated from Union College at 
 the age of twenty-one. He then entered the law office of Honorable 
 Jonathan L. Woods at Cortland, and continued and completed his pro- 
 fessional studies under Honorable Hiram Gray at Elmira, being ad- 
 mitted to the bar in 1836. He formed a legal copartnership with Hon- 
 orable James Dunn, of Elmira, which, however, lasted for only one 
 year, after which he established an association with his former precep- 
 tor, Judge Gray. This continued until 1846, when Judge Gray was 
 appointed to the circuit bench of the state. Mr. Hatheway thereupon 
 connected himself with Honorable A. S. Diven and James L. Woods in 
 the firm of Diven, Hatheway & Woods. This soon became one of the 
 most prominent and successful legal firms in the state, and it was dis- 
 solved only by the death of Colonel Hatheway. 
 
 His legislative career was confined to the state assembly in 1842 
 and 1843. In the assembly of 1843 he was conspicuous for his advo- 
 cacy of a bill providing for the completion of the unfinished public 
 works. He was nominated by the democratic party for congress in 
 1856 and" 1862, but was defeated. He served in the war as colonel of 
 the 141st regiment of New York state volunteers, resigning in 1863 in 
 consequence of a pulmonary disease which soon afterward caused his 
 death. 
 
 He was a man of large wealth and had refined tastes, especially in 
 literature. At the bar he was most eminent as an advocate before a 
 jury. 
 
 1 Samuel Gilbert Hatheway, the elder, was born in member of the assembly in 1814 and 1818. state senator 
 Freetown, Massachusetts, in 1780, and died in Solon, in 1883," member of congress from 1833 to 1835, and ma- 
 New York, May 2, 1867. He was descended from a jor-general in the state militia (commissioned in 1823). 
 very old English family, one of his ancestors being Sir He was a highly influential man in central New York, a 
 Humphrey Gilbert. He was a pioneer of Cortland promineut democrat, and a friend of Andrew Jackson 
 Spunty, New York, settling there jn 3808. Be was a, and. Martin Van Buren, 
 
356 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 AVEN, SOLOMON GEORGE (born in Chenango county, 
 New York, November 27, 1810 ; died in Buffalo, New York, 
 December 24, 1861), was the son of a farmer, but received a 
 substantial elementary education, upon which he enlarged 
 by subsequent study. He at first contemplated entering the medical 
 profession, but changed his design and undertook the study of law at 
 Geneseo under the direction of General John Young, afterward gover- 
 nor of New York.. From Geneseo he removed to Buffalo in 1835, 
 where he finished his preparation for the bar in the office of Millard 
 Fillmore, and the next year he was admitted to Mr. Fillmore's firm, 
 which thereupon became Fillmore, Hall & Haven. He filled important 
 local offices, being successively commissioner of deeds, district-attorney 
 of Erie county, and mayor of Buffalo. He was a prominent whig and 
 republican member of congress, serving from 1851 to 1857. 
 
 AWKINS, DEXTER ARNOLD (born in Camden, Maine, 
 June 23, 1825 ; died in New York City, July 24, 1886), was 
 graduated at Bowdoin College in 1848. He devoted a num- 
 ber of years to educational activities, delivering lectures 
 before teachers' institutes, serving for a time as principal of Topsham 
 academy, and travelling abroad, under a commission from the gover- 
 nor of Maine, for the purpose of examining European methods of 
 instruction. He studied law at Harvard and later at the Ecole des droits 
 in Paris, entering upon its practice in New York in 1854. Through- 
 out the rest of his life, which was spent in the City of New York, he 
 devoted much of his attention to educational and economic subjects 
 and the questions of the day, being effective both as a speaker and a 
 writer. He was instrumental in the founding of the federal bureau 
 of education, and through his intelligent efforts various changes in the 
 interest of progress were instituted in New York state legislation. 
 An amendment to the constitution prohibiting donations of public 
 property to private corporations (1873) was largely the result of a 
 pamphlet written by him. In 1871 he wrote a report on the " Extrav- 
 agances of the Tweed Ring," which preceded the Times exposures and 
 helped to cultivate the strong public sentiment that soon afterward 
 overwhelmed the ring. His published writings comprise also works on 
 free trade and protection, the money question, and sectarian appropria- 
 tions. 
 
 AWLEY, WILLIAM MERRILL (born in Delaware county, 
 New York, August 23, 1802 ; died in Hornellswille, New 
 York, February 9, 1869), was the son of an early settler of 
 western New York, and had only very limited educational 
 opportunities. At the age of twenty-two, being elected a constable, 
 he decided to obtain some knowledge of the law so as to be better fitte J 
 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 357 
 
 for the discharge of his official duties. In 1826 he was admitted to the bar, 
 and in 1827 he engaged in practice in Hornellsville. Here he became 
 prominent, and nine years later he was appointed the first judge of 
 Steuben county. He represented the county as a democrat in the state 
 senate. At the democratic national convention of 1848 he was one 
 of the free-soil element which subsequently nominated Martin Van 
 Buren for president on a separate platform. Aside from his services 
 as a state senator and a county judge he held no offices of importance. 
 He gained a large and lucrative practice at the bar, and was highly 
 esteemed for his abilities and personal qualities. 
 
 Si 
 
 ERRING, ELBERT (born in Stratford, Connecticut, July 8, 
 1777 ; died in New York City, February 20, 1876), was an 
 eminent lawyer at the New York bar in the early part of the 
 nineteenth century. He was the legal preceptor of men who 
 afterward become highly distinguished, one of them being Charles 
 O'Conor. He was graduated in 1795 at Princeton College. He held 
 several prominent offices : was judge of the Marine Court for three 
 years from its creation in 1805, and later was again called to that 
 bench ; was the first register of the state of New York, serving for 
 five years from 1812, under appointment by De Witt Clinton, who 
 was his personal friend ; and was the first commissioner of Indian 
 affairs (1832-36). He lived to be nearly ninety-nine years old, and 
 preserved his faculties and health to the end of his life ; but for more 
 than thirty years he lived in retirement. 
 
 ICKS, WHITEHEAD (born in Flushing, Long Island, August 
 24, 1728 ; died there, in October, 1780), was one of the leading 
 lawyers of the colonial bar of New York. He practiced in 
 the City of New York, being admitted in 1750. From 1752 
 
 to 1757 he was clerk of Queens county, and from 1766 to 1776 mayor of 
 
 New York. In December, 1775, he was appointed judge of the 
 
 Supreme Court, but he never took his seat. With 
 
 Horsmanden, Ludlow, Samuel Jones, John Tabor 
 
 Kempe and Benjamin Kissam he signed (October 
 
 16, 1776) a petition to Lord Howe for the restoration of civil power in 
 
 the place of military rule. He was of a jovial disposition, and popular 
 
 with his brethren of the bar and with the public. 
 
 ILL, NICHOLAS (born in Florida, Montgomery county, New 
 York, October 16, 1806 ; died May 1, 1859), was a son of Rev- 
 erend Nicholas Hill, a revolutionary soldier and a man of 
 sterling qualities, who was of the third generation from 
 Adam Hill, born in county Derry, Ireland. Nicholas Hill, Junior, 
 after teaching school for some years, was admitted to the bar, 1829, 
 
 l! 
 
358 HISTORY OE THE BENCH AND BAR OF NEW YORK 
 
 and began practice at Amsterdam, New York, in partnership with 
 Deodatus Wright. Later, becoming associated with Esek Cowen, of 
 Saratoga, he assisted him in the preparation of the " Notes to Phillips 
 on Evidence." This period of Mr. Hill's life, says a biographer, was one 
 of incessant, laborious industry. He was appointed in 1836 by the 
 Court of General Sessions district-attorney of Saratoga county, but 
 resigned the next year. Prom 1840 to 1845 (when he resigned) he was 
 state reporter, publishing in that time seven volumes of reports of the 
 Court of Errors and the Supreme Court. These are models of consci- 
 entious and intelligent reporting. He next formed a legal copartner- 
 ship at Albany with Peter Cagger, in which Honorable John K. Porter 
 soon joined, the firm becoming Hill, Cagger & Porter. From 1845 
 until his death he devoted himself mainly to the arguing of causes on 
 appeal, and it is said that he argued a greater number of causes in the 
 Court of Appeals than any other lawyer of the state in the same period. 
 Mcholas Hill was one of the great New York lawyers of his day. 
 A memorial prepared by a committee of the bar thus characterized 
 him : " It is not too much to say that by the common consent of the 
 bar Mr. Hill stood foremost among the first." He had no taste for 
 jury practice, and indeed it is said of him that he was never known to 
 sum up a case before a jury. Moreover, in his peculiar field he owed 
 nothing to eloquence, for he was without the oratorical temperament. 
 The clearness and force of his arguments constituted his sole reliance. 
 
 OBART, JOHN SLOSS (born in Fairfield, Connecticut, in 
 1738 ; died February 4, 1808), was a prominent lawyer of the 
 later colonial bar and held important judicial offices during 
 and after the Revolution. Graduating from Yale in 1757, he 
 prepared himself for the bar and entered upon practice in this state. 
 At the outbreak of the revolutionary troubles he took the patriot side, 
 being a member of the provincial convention of 1775 and having a 
 hand in the drafting of the original constitution of the state. After 
 the war he was a judge of the Supreme Court. In 1798 he was chosen 
 to represent New York in the senate of the United States, but soon 
 resigned the office to accept the position of United States district judge. 
 
 g|j||0BBIE, SELAH R. (born in Newburgh, New York, March 
 |||p 10, 1797 ; died in Washington, D. C, March 23, 1854), com- 
 sS^gll menced his legal career in the town of Delhi, Delaware 
 — county, and became prominent both professionally and po- 
 litically in that part of the state. He was district-attorney of Dela- 
 ware county from 1823 to 1827, was a brigade-major and inspector of 
 militia, and was a democratic member of congress from 1827 to 1829. 
 From 1832 until his death, with an intermission of but two years, he 
 was one of the assistant-postmasters-general of the United States. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 359 
 
 OFFMAN, JOHN THOMPSON (born in Sing Sing, New 
 York, January 10, 1828 ; died in Wiesbaden, Germany, 
 March 24, 1888), was graduated at Union College in 1846, and 
 after three years of study was admitted to the bar, establish- 
 ing an office in the City of New York, where he enjoyed much success 
 in his profession. Later he became active in politics as a democrat, 
 and from the beginning of the war he was constantly in public life. 
 In 1860 he was elected recorder of the city, and he was again elected 
 to that office in 1863. As recorder, although a democrat, he dealt 
 sternly with the draft rioters. He was twice elected mayor of the city 
 (1865 and 1867). He was three times the democratic candidate for gov- 
 ernor, and was twice elected (1868 and 1870). During his second guber- 
 natorial term occurred the exposures of the Tweed ring and its conse- 
 quent downfall. In that eventful period he was an object of strong 
 criticism in the press. After the completion of his service as governor 
 he retired from active life. 
 
 i 
 
 OFFMAN, JOSIAH OGDEN. See page 141 of this volume. 
 
 OFFMAN, MUERAY (born in New York City, September 
 29, 1791 ; died in Flushing, Long Island, May 17, 1878), a 
 son of Josiah Ogden Hoffman, was graduated from Columbia 
 College in 1809, and afterward was admitted to the bar and 
 practiced law in New York City. In 1839 he was appointed assistant- 
 vice-chancellor, which office he held till 1843. In 1853 he was ap- 
 pointed judge of the Superior Court of New York City, and he 
 remained on that bench till 1861. He was a voluminous writer on 
 legal topics. Some of his works are : " Offices and Duties of Masters 
 in Chancery," " Treatise on the Practice of the Court of Chancery," 
 " Treatise on the Corporation of New York as Owners of Property," 
 " Compilation of the Laws Relating to the City of New York," " Vice- 
 Chancery Reports," " Provisional Remedies," " Treatise on the Law 
 of the Protestant Episcopal Church in the United States," and " Ecclesi- 
 astical Law." 
 
 OFFMAN, OGDEN (born in New York City, May 3, 1793 ; 
 died there, May 1, 1856), was a younger brother of the pre- 
 ceding. He graduated with honors at Columbia College in 
 1812. After his graduation he joined the navy and was taken 
 prisoner with Decatur, under whom in 1815 he served in the war on the 
 Barbary states. He left the navy in 1816 and went to Orange county, 
 New York, where his father owned a country residence, and began the 
 study of the law. He made the acquaintance of William H. Seward, 
 who at that time lived in Orange county. He was admitted to the bar 
 
360 HISTORY OP THE BENCH AND BAR OF NEW YORK 
 
 at Goshen, New York, and practiced there a few years. In 1823 he 
 was appointed district-attorney of Orange connty, and in 1825 he was 
 elected by the democrats to the legislature. He afterward removed to 
 New York City, where he practiced in partnership with Hugh Maxwell. 
 He joined the whig party on account of President Jackson's removal of 
 the deposits from the United States bank. He was elected to the 
 legislature in 1828, and subsequently became district-attorney of New 
 York county. In 1836 he was chosen a representative to congress and 
 was re-elected in 1838, and afterward (1841-45) became district-attorney 
 for the United States in the southern New York district. The last 
 office he held was attorney-general of the state. 
 
 He has been styled the Erskine of the American bar. He 
 was probably the most consummate criminal lawyer that America has 
 produced. He was polished, suave and courteous, and never resorted 
 to bullying or browbeating witnesses, or to any of the other unpro- 
 fessional tricks so common among the limbs of the criminal bar. One 
 of the celebrated cases he took part in was where a young man named 
 Robinson had been indicted for the murder of Helen Jewett, a gay 
 woman. The prisoner was acquitted wholly owing to Hoffman's 
 eloquence and tact, the evidence against him being apparently over- 
 whelming. Besides the criminal cases he was engaged in, he also had' 
 a large civil practice. He was among the lawyers employed in the trial 
 of the Parish will contest. This case probably occupied the attention 
 of more eminent lawyers than any other ever tried in New York City. 
 Such lawyers as O'Conor, Lord, Dwight and Dillon took part in it. 
 Mr. Hoffman made his last forensic effort in this suit. He died poor, 
 because of his generous disposition and his unwillingness to see un- 
 fortunate people in distress. One of his sons was the United States 
 district judge in California from the time of its admission to the union 
 until 1891. 
 
 OGAN, WILLIAM (born in New York City in 1792 ; died in 
 Washington, District of Columbia, about 1875), was graduated 
 at Columbia College in 1811, pursued legal studies, and re- 
 moved to the Black river region, where he became active in 
 opening undeveloped resources, the town of Hogansport, on the Saint 
 Lawrence river, being named for him. He served as a county judge 
 and a Jacksonian member of congress. In 1850 he entered the state 
 department as examiner of claims, and later he became a government 
 translator, continuing in that position until 1869. 
 
 k 
 
 OGEBOOM, HENRY (born in Columbia county, New York, 
 in 1808 ; died in Hudson, New York, September 12, 1872), 
 was graduated at Yale College in 1827, and rose to prominence 
 at the bar of New York state soon after his admission (1830). 
 He carried on his practice in Hudson, where in 1831 he became master 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 361 
 
 in chancery and county judge, and in 1839 was chosen to the legisla- 
 ture. He was defeated as a candidate for supreme judge in 1847 and 
 1849, but was elected in 1857 and re-elected in 1865, meantime sitting 
 for a while on the Court of Appeals bench. He was very able and 
 successful as a lawyer and decidedly clear-minded and discriminating as 
 a judge. His opinions are conspicuous also for the quality of a forcible 
 and pleasing style. 
 
 OPKINS, SAMUEL MILES (born in Salem, Connecticut, 
 May 9, 1772 ; died in Geneva, New York, March 9, 1837), was 
 graduated in 1791 from Yale College, and two years later 
 began to practice law in Oxford, New York, whence he re- 
 moved to the City of New York in 1794. He advanced there to pro- 
 fessional prominence, and also held important offices, being a repre- 
 sentative in congress from 1813 to 1815, and a member of the assembly 
 from 1820 to 1827. In 1821 he took up his residence in Albany, and 
 from 1832 to 1836 was a judge of the Circuit Court of the state. He 
 published in 1827 a volume of chancery reports, and he was a writer 
 on various legislative and social subjects. 
 
 ORSMANDEN, DANIEL (born in Gouldhurst, Kent, Eng- 
 land, in 1691 ; died in Platbush, New York, September 28, 
 M 1778), was the last royal chief -justice of the province of New 
 York, succeeding De Lancey. He became a member of the 
 city council of New York, May 23, 1733, and was appointed recorder 
 of the city in 1736, puisne judge of the Supreme Court in 1737, and 
 chief-justice March 16, 1763. He was a partisan of De Lancey and, as 
 a member of the council, supported Governor Cosby against Zenger 
 and Van Dam. For this conduct, and for his opposition to Governor 
 Clinton, he was suspended from the council in September, 1747, 
 and removed from the offices of recorder and Supreme Court judge. 
 But on breaking with De Lancey he became reconciled to Governor 
 Clinton, and was restored to the bench /-> r^fy 
 
 laws in operation in the province, but in consequence of ill-health was 
 unable to perform the work. He was one of the judges who presided in 
 the celebrated " Negro Plot " trials, and published a pamphlet justify- 
 ing the convictions. 1 In the case of Force vs. Cunningham, in the fall 
 of 1764, he maintained the unconstitutionality of the king's authoriza- 
 tion of an appeal from the civil judgments of the Supreme Court to 
 the governor and his council. Before the Revolution, and during its 
 progress until his death, he was a loyalist. He was appointed in 1773 
 
 1 See pp. 85-86 of thiB volume. 
 
362 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 a commissioner to inquire concerning the burning of the king's ship 
 Oaspe by a party of whigs. He disapproved the declaration of inde- 
 pendence, and was one of the thousand signers of the petition of 1776 
 to Lord Howe by the residents of the City and County of New York. 
 
 As a barrister Horsmanden was not a success, being very much 
 harassed by debts when not in official position. In the last several 
 years of his service on the bench the annoyances consequent upon his 
 superannuation were peculiarly felt by the legal profession ; and the 
 provision inserted in the first constitution of the state, establishing an 
 age limit of sixty years for judges, was directly due to that circum- 
 stance. 
 
 He is buried in Trinity churchyard. 
 
 OSMER, GEORGE (born in Farmington, Connecticut, August 
 30, 1781 ; died in Chicago, Illinois, March 6, 1861), was a son 
 of Doctor Timothy Hosmer, one of the earliest settlers of 
 Ontario county, New York, and first judge of that county. 1 
 He engaged in the practice of law at Canandaigua, New York, 
 after completing a collegiate education. From there he soon re- 
 moved to Avon, New York. He took part in the war of 1812, be- 
 came district- attorney of Livingston county in 1820, served in the 
 legislature from 1823 to 1825, and afterward returned to his successful 
 practice at the bar. 
 
 state. 
 
 OWARD, NATHAN, Junior (died in New York City in Oc- 
 
 tober, 1876), was a well-known legal author. He edited 
 " Howard's Practice Reports," which for thirty years received 
 general recognition as a standard authority in New York 
 
 UBBELL, LEVI (born in Ballston, New York, April 15, 1808; 
 died in Milwaukee, Wisconsin, December 8, 1876), was gradu- 
 ated from Union College in 1827 and began his legal career 
 in this state, becoming adjutant-general (1833 to 1836) and 
 member of the assembly (1841). After his removal to Wisconsin, in 
 1 844, he was active in the democratic party there. He was a judge of 
 the 2d judicial circuit and for a year was chief-justice of the Su- 
 preme Court; He was tried on impeachment charges, but was ac- 
 quitted. He resigned as judge in 1856 and resumed his law prac- 
 tice. From 1871 to 1875 he was United States district-attorney at 
 Milwaukee. 
 
 ■Doctor Timothy Hosmer was a brother of Titus mer, chief -justice of Connecticut from 1815 to 1833. 
 
 Hosmer, a prominent public man of Connecticut and The family had for its' American ancestor colonel 
 
 judge of the Maritime Court of Appeals of the United Thomas Titus, an officer in Cromwell's army, who came 
 
 States. He was also an uncle of Stephen Titus Hos- to Boston after the accession of Charles U. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 363 
 
 UMPHKEY, JAMES (born in Fairfield, Connecticut, October 
 9, 1811 ; died in Brooklyn, New York, June IT, 1866), was 
 graduated at Amherst College in 1831 and went to Louisville, 
 Kentucky, to enter upon the practice of the law. Kemoving 
 to New York and continuing his legal practice he became corporation, 
 counsel of Brooklyn in 1850-51 and republican representative in con- 
 gress from 1859 to 1861, being re-elected to that body in 1864. 
 
 UNT, WARD (born in Utica, New York, June 14, 1810; died at 
 Washington, District of Columbia, March 25, 1 886), was the son 
 of Montgomery Hunt, a conspicuous citizen and financier of 
 Oneida county. He was educated at the local academy of Utica 
 and at Union College, which he entered in his nineteenth year, graduating 
 with honors. After leaving college he attended the famous law school 
 of Judge Gould at Litchfield, Connecticut, taking the regular course, 
 and later continued his legal studies in the office of Hiram Denio at 
 Utica until his admission to the bar in 1831. He immediately com- 
 menced practice at Utica, and, through his father's connection with the 
 Bank of Utica and his large circle of friends, he soon secured a consid- 
 erable business. His professional career was further assured by his 
 admission as junior partner into the law firm of Mr. Denio, which gave 
 him a more than a respectable rank at the county bar, at the time dis- 
 tinguished for its eminent counsel. His duties in his early practice 
 combined both those of attorney and advocate, with occasional oppor- 
 tunity to assist as counsel. His association with his senior, Mr. Denio, 
 in the preparation of his briefs, fortifying them with citations and 
 references, was of incalculable advantage. Thus rapidly maturing, Mr. 
 Hunt at an early age in his practice acquired a reputation excelled 
 only by the oldest lawyers in the county. He was engaged in the most 
 important suits tried before the Supreme Court and the bench of Ap- 
 peals at Albany. 
 
 He never took any active interest in politics. His earliest associa- 
 tions were with the democratic party, and in 1839 he served a single 
 term in the legislature. Upon the formation of the republican party 
 he became an adherent of that organization, In 1865 he was elected 
 judge of the Court of Appeals by a large majority as the successor of 
 his early instructor and long-time associate in practice, Judge Denio. 
 Two years later he was promoted to the office of chief -judge of that 
 court. 
 
 In 18T2, Honorable Samuel Nelson having resigned his place as 
 associate-justice, a vacancy occurred on the Supreme Bench of the 
 United States. President Grant tendered the place to Chief-Judge 
 Hunt. He took his seat January 7, 1873, and for six years bore a part 
 in the proceedings of the supreme tribunal of the country. His circuit 
 court allotments during the time were to the 2d circuit, including 
 
364 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 New York, Connecticut, and Vermont. Early in January, 1879, Jus- 
 tice Hunt was stricken with, paralysis of the right side and for a few 
 days his life was despaired of. He slowly regained his health, but not 
 sufficiently to resume his judicial labors. In 1882 congress authorized 
 his retirement on a pension. The remainder of his years was spent 
 in retirement. 
 
 UNT, WASHINGTON (born in Windham, New York, 
 August 5, 1811 ; died in New York City, February 2, 1867), 
 was educated in the common schools, and at the early age of 
 eighteen engaged in the study of the law, being admitted to the 
 bar in 1834, and beginning in that year the practice of his profession in 
 Lockport. He speedily enjoyed success, and rose to political promi- 
 nence. After serving as judge of Niagara county he was sent to con- 
 gress as a whig, serving from 1843 to 1849. In 1850 he was elected 
 governor over Horatio Seymour, but in 1852, being a candidate for 
 re-election, was defeated. He became a democrat after the disorganiza- 
 tion of the whig party. In 1860 he declined to accept a nomination 
 for vice-president on the democratic ticket. He was a prominent 
 "war democrat." He was an active and earnest lay member of the 
 protestant episcopal church. 
 
 6 
 
 UTCHINS, WALDO (born in Brooklyn, Windham county, 
 Connecticut, September 30, 1822 ; died in New York City, 
 February 8, 1891), was of Connecticut ancestry, his mother's 
 maiden name being Howard. Both his father, Waldo 
 Hutchins, Senior, and his grandfather were physicians. Mr. Hutchins 
 was graduated from Amherst College in 1842, and coming to New 
 York City studied law with the firm of John Slosson and Augustus 
 Schell, in 1845 being admitted to the bar. In 1852 he became a mem- 
 ber of the firm and so continued until his death, the firm style chang- 
 ing, successively, from Schell, Slosson & Hutchins to Slosson, Hutchins 
 & Piatt and Hutchins & Piatt. 
 
 Mr. Hutchins was prominently active in public life. In 1852 he 
 was a member of the assembly from Kings county, at the age of 
 twenty-nine becoming chairman of the judiciary committee of that 
 body. Nominated a justice of the Supreme Court in 1856, he declined. 
 He was one of thirty-two delegates-at-iarge to the constitutional con- 
 vention of 1867. He was a member of the 46th, 47th and 48th congresses. 
 He introduced in Congress a bill proposing as an amendment to the 
 constitution the requirement of a vote of two-thirds of all members of 
 each house in order to pass a bill over the president's veto. But his 
 most signal public services were undoubtedly in connection with the 
 parks and fire department of New York City. Under the act of 1853 
 for the erection of Central Park he was appointed a commissioner, and 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 365 
 
 held tbis unremunerative office for twelve years. " His admirable 
 administration of this trust was a fortunate thing for this city. It was 
 largely due to his vigorous policy, determination and high personal 
 character that the prevailing corruption of that epoch did not touch 
 the park." More recently he was active in connection with the " new 
 parks" in the annexed district, north of the Harlem river, presided 
 over the first public meeting on this subject, and was appointed by 
 Mayor Edson a member of the commission to lay out the new parks. 
 Appointed a member of the board of park commissioners of New York 
 City in June, 1887, he held this position until his death, being chosen 
 president of the board in June, 18S9. Mr. Hutchins also participated 
 prominently in the agitation resulting in the act of March, 1865, creat- 
 ing a metropolitan fire district and giving to New York City the first 
 paid fire service in its history. Moreover, one of his most important 
 and interesting law cases was as counsel in maintaining the constitu- 
 tionality of the act creating this notable reform. 
 
 As a lawyer Mr. Hutchins enjoyed a large corporation practice 
 and was counsel in many cases of note. 
 
 NGLIS, WILLIAM (born, probably, in New York City ; died 
 in Hoboken, New Jersey, about 1863), was, it is supposed, of 
 Scotch ancestry. He was graduated from Columbia College 
 in 1821, and was admitted to the bar in 1826. For thirteen 
 years, until his elevation to the bench, he practiced law in New York 
 City, holding a very respectable position in the profession, although he 
 did not become especially distinguished. lie took an active part in 
 whig politics at the time of the United States bank excitement, and it was 
 probably due to that circumstance that he was appointed to the bench of 
 the Common Pleas Court upon the creation of a new judgeship in 1839. 
 He was a highly popular trial judge, and when his term expired at the 
 end of five years, the bar, without distinction of party, favored his 
 reappointment. Governor Bouck, however, was resolved to appoint 
 none but a democrat, and accordingly selected Charles P. Daly for the 
 place. Mr. Daly at first declined, but later accepted at the personal 
 request of Judge Inglis. 
 
 NGRAHAM, DANIEL P. (born in New York City in 1800 ; died 
 there, December 12, 1881), was of Dutch and English descent 
 his ancestors on his father's side having been engaged for 
 many years in business, and those on his mother's side having 
 been prominent in public affairs. When he was twelve years of age 
 his family removed to Harlem, where they possessed considerable real 
 estate inherited from his paternal grandfather, and where he resided 
 until within a few years of his death. He was educated at Columbia 
 
366 HISTOBY OF THE BENCH AND BAR OP NEW YOKK 
 
 College, graduating at an early age, and read law with Richard Riker, 
 who for twenty years was recorder of the City of New York. His 
 fellow-student in the office was Thomas Brady, one of whose sons 
 subsequently sat with him on the bench as an associate-judge in the 
 Court of Common Pleas and in the Supreme Court. Upon coming of 
 age he was admitted to the bar and at once commenced practice, 
 winning early in his professional career the respect and confidence of 
 all with whom he came in contact and acquiring a large and lucrative 
 practice. Steadily growing in prominence, he in 1835 represented in the 
 board of assistant alderman the 12th ward, which then embraced a 
 krg3 part of the territory of New York island, and he was alderman of 
 of the same ward during the years 1836 and 1837. 
 
 His judicial life began in 1838, when Governor Marcy appointed 
 him associate-judge of the Court of Common Pleas to fill the vacancy 
 occasioned by the death of Honorable John T. Irving. In 1850, on the 
 retirement of Judge Ulshoeffer, he was selected by his associates for 
 the position of first judge, an office which he continued to hold so 
 long as he remained a member of the court. For seventeen of the' 
 twenty years of his judgeship in the Court of Common Pleas no 
 regular reports of the opinions of that court were published, but the 
 reports of Smith and Hilton covering the last three years attest the 
 great labors performed by the Common Pleas judges. 
 
 In the'fall of 1857 he was elected a justice of the Supreme Court, 
 taking his position as a member of that court on the 1st of January, 
 1858. He continued in this position, much of the time acting as chief- 
 justice, until 1874, when his term expired and he had passed the con- 
 stitutional limit of judicial life. As a judge of the Supreme Court his 
 opinions are reported in the last forty volumes of Barbour and seven 
 volumes of Lansing, and in Abbott and Howard, as well as in the 
 Court of Appeals reports for the year 1864, when he served as a mem- 
 ber of that court. 
 
 Judge Ingraham, in his long career on the bench, possessed uni- 
 formly the highest confidence and respect of the profession and the 
 public. His judicial abilities were of a very superior order, and to 
 these he added great conscientiousness, dignity and courtesy. 
 
 RVING, JOHN TREAT (born in New York City, May 26, 
 1778 ; died there, March 15, 1838), was an elder brother of 
 Washington Irving, the eminent man of letters. He was 
 graduated from Columbia College in 1798, and took up the 
 study of the law. Being admitted to the bar, his natural ability and 
 his great industry soon .won for him an important place in the pro- 
 fession. In 1816 and 1817 he was a member of the assembly of the 
 state, and in 1821 he was appointed to the bench of the Court of 
 Common Pleas, being the first judge of that newly-organized tribunal. 
 
IIISTOKY OP THE BENCH AND BAR OF NEW YOKE 
 
 367 
 
 He served as Common Pleas judge until his death — seventeen years. 
 He was a trustee of Columbia College and a vestryman of Trinity 
 Church. He possessed literary ability, and in his earlier years con- 
 tributed to the columns of the Chronicle, edited by his brother, but in 
 later life the claims of his profession and his official duties engaged his 
 exclusive attention. 
 
 Honorable Charles P. Daly, in his introduction to the first of E. D. 
 Smith's Reports, says of Judge Irving : 
 
 As a judge he was in many respects a model for imitation. To the strictest 
 integrity and a strong love of justice he united the most exact and methodical habits 
 of business. Attentive, careful and painstaking, few judges in this state ever have 
 
 SUNNYSIDE, WASHINGTON IRVING S RESIDENCE. 
 
 been more accurate, or perhaps more generally correct in their decisions. "While 
 presiding at nisi prius he was not what would be termed a quick-minded man, but 
 when questions were argued before him in banc he bestowed so much care and con- 
 sidered each case so attentively that his judgments were rarely reversed, and were 
 uniformly treated by the courts of revision with the greatest respect. 
 
 Upon his death the bar caused a handsome marble tablet, with 
 his bust in relievo, to be placed in the court-room, with the following 
 inscription : 
 
 VIRO ■ HONORATO 
 
 IOANNI - T - IRVING 
 
 QVBM - JVDICIS ' OFFICIO ' MVLTOS - PER • ANNOS ' FVNCENTEN • 
 
 ET - LEQVM ' DOCTRINA ' ET - MORVM - INTEGRITAS ' FELICISSEME - CONDECORABANT - 
 
 IVRISCONSVLTI ■ NEO-EBORACENSES " QVIBVS * ET • AMIOI • ET " MAGISTRI 
 
 TAM - TRISTE • RELQVIT ' DESIDERIVM 
 
 H - M ' PONENDVM " CVRAVERVNT* 
 
 AMES, AMAZIAH B. (born in Rensselaer county, New 
 York, in 1812; died in Troy, New York, in July, 1883), 
 received an academic education and was admitted to the 
 New York bar in 1838. He practiced law for fifteen years 
 in Ogdensburgh. He was elected a judge of the Supreme Court and 
 remained on the bench twenty-three years, winning distinction for 
 
368 HISTORY OF THE BENCH AND BAR. OF NEW YORK 
 
 courtesy, fairness, learning, and integrity. He resigned the judgeship 
 in 1876 to accept an election to congress. He declined a re-election 
 and retired to private life. 
 
 AMISON, DAVID, was one of the early colonial practitioners, 
 living in New York City. So far as is known, he was a man 
 of character and capacity, although Governor Bellomont 
 declared that he had been condemned to be hanged in Scot- 
 land for blasphemy and burning a bible. In 1707 he was one of the 
 counsel of Mackamie, or Makamie, a presbyterian clergyman, prose- 
 cuted by Cornbury for preaching without a license at a private house 
 in Newtown on his way from New York to Virginia. Mackamie was 
 held for two months in prison. The legal question at issue was whether 
 the English act of uniformity operated in the colonies. Jamison was 
 chief-justice of New Jersey from 1710 to 1719, although still maintain- 
 ing his residence in New York. 
 
 AY, JOHN, first chief-justice of the state of New York and 
 first chief-justice of the United States (born in New York 
 City, December 12, 1745 ; died in Bedford, Westchester 
 county, New York, May 17, 1829), was descended from 
 Huguenot ancestors. After his graduation at King's College (now 
 Columbia) in 1766, he was, in the same year, admitted to the bar. 
 His legal preceptor was Benjamin Kissam. He began practice at the 
 age of twenty-one, and in ten years established a reputation for ability 
 which was the foundation of a career of uninterrupted distinction. 
 He was one of the foremost men of New York in the manifestations 
 which preceded the American Kevolution. He participated in the 
 formal -organizations of the patriotic citizens of . New York r and the 
 authorship of the recommendation of a committee of New Yorkers, 
 that " a congress of deputies from all the colonies in general " be held, 
 is ascribed to him. He was a delegate to the early general congresses 
 at Philadelphia, and one of the leading. members of those bodies, being 
 the author of the " Address to the People of Great Britain " (which 
 Jefferson praised in the highest terms) and of the "Address to the 
 People of Canada and of Ireland"; and he was one of the secret com- 
 mittee appointed by congress in November, 1775, " to correspond with 
 the friends of America in Great 'Britain, Ireland, and other parts of the 
 world." During his attendance at Philadelphia he had been chosen a 
 delegate to the New York provincial convention, and at the request of 
 that body (then in session at White Plains) he went to participate in 
 its deliberations. It was on his motion that the declaration of inde- 
 pendence was unanimously approved by the New York convention, 
 and he was very conspicuous in its subsequent transactions, being the 
 
Enq by Williams MwYm-k 
 
 Ay? 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 369 
 
 chief author of the state constitution which it adopted (April 20, 1777). 
 Early in May, 1777, the state government agreed upon was organized 
 and established, and Mr. Jay was chosen chief-justice, his competitor 
 being General Scott. He held his first term as chief-justice of the state 
 on September 9 following, at Kingston. He also, at this time, served 
 as a member of the council of safety, which, under its authority to direct 
 the military occupation of the state, exercised arbitrary powers. 
 
 The duties of Jay in the chief-justiceship of the Supreme Court of 
 New York were soon interrupted by the demands of his country's ser- 
 vice. Being sent to congress in the special emergency occasioned by 
 the erection of the State of Vermont as a commonwealth distinct from 
 the State of New York, he was ehosen president of that body (Decem- 
 ber 1, 1779). He continued in that capacity for nearly a year, when, 
 September 27, 1779, he was appointed minister to Spain. In this office 
 he remained until after the conclusion of 
 peace. He served with John Adams and 
 Benjamin Franklin as one of the peace 
 commissioners of the United States, being 
 appointed at Franklin's request by con- 
 gress, June 23, 1782. His contributions to 
 the diplomacy of the peace commissioners 
 were of the greatest value ; from the be- 
 ginning he intelligently and firmly re- 
 sisted all the secret endeavors of the 
 French government to limit the territorial 
 bounds of the nation at the west, and the 
 most advantageous terms of the resulting 
 treaty were in a peculiar manner his per- 
 sonal triumph. 
 
 In July, 1784, he returned to the 
 United States to assume the duties of secretary of foreign affairs, the 
 chief executive position then existing, to which he had been appointed 
 by congress — an office which he retained until the end of the provi- 
 sional regime. It was largely by his influence that the State of .New 
 York was persuaded to give its assent to the federal constitution. 
 
 When the national government was organized under President 
 Washington, Jay was requested by the president to choose for himself 
 the position most acceptable to him. He thereupon selected the office 
 of chief -justice of the Supreme Court. In accepting the chief -justice- 
 ship he resigned the honorable place of president of the abolition 
 society, which he had previously held. As chief-justice of the United 
 States, he was the incarnation of honor and dignity. In the familiar 
 words of Daniel Webster, " When the spotless ermine of the judicial 
 robe fell on John Jay, it touched nothing less spotless than itself." 
 But he was not permitted to remain in the placid enjoyment of his 
 great judicial station. In 1792 he was a candidate for governor of 
 
 AUTOGRAPHS OF AMERICAN PEACE 
 COMMISSIONERS. 
 
370 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 New York against George Clinton, but he was defeated by the throw- 
 ing out of votes on technical grounds. In 1794 he was sent by Wash- 
 ington as a special envoy to England, and the result of this mission 
 was the negotiation of the celebrated " Jay's Treaty." Upon his return 
 to the United States he assumed the office of governor of New York, 
 to which he had been chosen in his absence, and he was re-elected in 
 1798. Retiring from the governorship in 1801, he was reappointed 
 chief-justice by President John Adams, but he declined that honor and 
 retired to private citizenship. 
 
 There can be no doubt of the greatness of Jay as a judge. The 
 case of Chisolm vs. Georgia, in 2 Dallas, 415, is a signal illustration. 
 It involved the question whether a state could be sued. Jay's opinion 
 in this case made the Supreme Court the final interpreter of the con- 
 stitution. It originated the logic and the methods of reason which 
 
 Marshall em- 
 ployed afterward 
 in upholding fed- 
 eral authority. 
 Touching this de- 
 cision, Judge 
 Cooley has said : 
 
 GOLD SNUFF-BOX OF JOHN JAY. 
 
 After this clear 
 and authoritativ e 
 declaration of na- 
 tional supremacy 
 the power of a court 
 to summon a state 
 hefore it, at the suit 
 of an individual, 
 might be taken 
 away by the amendment of the constitution — as was in fact done — without impair- 
 ing the general symmetry of the federal structure, or inflicting upon it irremediable 
 injury. The union could scarcely have had a valuable existence had it been judi- 
 cially determined that powers of sovereignty were exclusively in the states or in the 
 people of the states severally. The doctrine" of an indissoluble union, though not 
 in terms declared, is nevertheless, in its elements at least, contained in the decision. 
 .... It must logically follow that a nation, as a sovereignty, is possessed of all 
 those powers of independent action and self-protection which the successors of Jay 
 subsequently demonstrated were by implication conferred upon it. * 
 
 In a charge to a grand jury at Richmond, in 1783, Jay took the 
 ground that violations of the neutrality proclamations of the federal 
 executive were indictable at common law ; that international law is 
 a part of the common law binding upon the states. In this posi- 
 tion he has been since sustained by the decisions of the Supreme 
 Court. Story had a very high opinion of Jay as a lawyer, and once 
 wrote that he was " equally distinguished as a revolutionary statesman 
 and a general jurist." 
 
HISTOEY OF THE BENCH AND BAR OF NEW YORK 
 
 371 
 
 ' AY, JOHN (born in New York City, June 23, 1817), is a son 
 of Judge William Jay (q. v.). He was graduated from 
 Columbia College in 1836 and admitted to the bar in 1839. 
 Inheriting the anti-slavery creed of his father and grand- 
 father, he devoted himself energetically to this reform movement. In 
 his profession he made himself con- 
 spicuous by his advocacy of the cause of 
 fugitive slaves, appearing as counsel in 
 behalf of the Lemmon slaves, Henry 
 Long, George Kirk, and two Brazilian 
 slaves who were landed in New York. 
 He waged a prolonged contest— which 
 was finally successful — to procure the 
 admission of Saint Philip's colored 
 church to the protestant episcopal con- 
 vention. He took part in the original 
 organization of the republican party in 
 the State of New York. He was ap- 
 pointed minister to Austria in 1869 and 
 served until 1875, when he resigned. He 
 was president of the Union League Club 
 in 1866 and 1877, state commissioner for 
 Antietam cemetery in 1868, chairman of 
 the commission to investigate the New 
 York custom house in 1877, a member 
 of the state civil service commission (by the appointment of Governor 
 Cleveland) from 1883, first president of the Huguenot Society (organ- 
 ized in 1855), and has been prominently connected with the New York 
 Historical Society. He is the author of numerous addresses and pam- 
 phlets. 
 
 y^/u^- y^ 
 
 <ZC*y 
 
 p| AY, PETER AUGUSTUS (born in Elizabethtown, New Jer- 
 sey, January 24, 1776 ; died in New York City, February 20 
 1843), the eldest son of John Jay, the elder, was graduated 
 from Columbia College in 1794. He accompanied his father 
 as his secretary, on his mission to England in that year, and after his 
 return engaged in legal studies and was admitted to the New York 
 bar. He gained distinction as a lawyer and also was a man of mark 
 in political and legislative affairs. He gave valuable assistance in pro- 
 moting the construction of the Erie canal, and was prominent with his 
 brother William in the movement for abolishing slavery in this state. 
 He was recorder of New York City from 1819 to 1821, a delegate to 
 the constitutional convention of 1821, a trustee of Columbia College 
 president of the New York Historical Society, and a cordial friend of 
 charitable enterprises. He was a member of the Kent club, in which 
 
372 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 some of the leading lawyers of the city were affiliated, was a man of 
 iarge general as well as juristic learning, and possessed a character of 
 high moral purity. 
 
 | AY, WILLIAM (born in New York City, June 16, 1789 ; died 
 in Bedford, New York, October 14, 1858), was the second son 
 of John Jay the elder. He was privately instructed in the 
 classics by an English scholar, and later attended Yale Col- 
 lege, graduating in 1808. He studied for the law at Albany under 
 John B. Henry, but in consequence of an affection of the eyes did not 
 long pursue the profession. He acquired, however, an excellent legal 
 equipment, which fitted him for the long-continued and excellent ser- 
 vices which he afterward rendered on the bench. He was appointed in 
 1818 by Governor De Witt Clinton judge of Westchester county, and 
 although that office was vacated for a time after the constitution of 
 1821 came into effect, he was later reappointed and continued to oc- 
 cupy it until 1843, when he was removed by Governor Bouck because 
 — as was alleged -of his decided anti-slavery principles. 
 
 He early took a keen interest in the slavery question, and through- 
 out his life was very conspicuous as a writer and sp?aker in behalf of 
 the anti-slavery cause. He did not, however, take extremist views on 
 the constitutional issues involved, and while maintaining that congress 
 had authority to suppress the domestic slave trade and to abolish slav- 
 ery in the territories under its exclusive jurisdiction, he did not agree 
 with those who wished it to interfere with this institution in the states. 
 . S He rendered able assistance in the advocacy 
 
 A/J\XJ&~OWi<\. e/ OC<y^ of free speech, and while on the bench de- 
 / livered a notable charge to the grand jury, 
 advising them that any law passed to abridge in the least the freedom 
 of speech or the liberty of the press was necessarily null and void. He 
 discussed with great ability certain legal principles involved in phases 
 of the slavery discussion — notably the doctrine announced by a Con- 
 necticut court in the Prudence Crandall case, that persons of color could 
 not be citizens. His writings on slavery were voluminous, widely circu- 
 lated, and did much to mould public opinion. He also was ardently 
 devoted to the cause of international arbitration as a substitute for war 
 being one of the pioneers in that cause. He was president of the Ameri- 
 can Peace Society, attended peace congresses abroad, and wrote a num- 
 ber of notable pamphlets on the subject. He published in 1833 a work 
 entitled "The Life and Writings of John Jay," which for the first 
 time disclosed the actual services of that statesman in the peace nego- 
 tiations of 1782-83. He was appointed in 1 833 by President Jackson 
 a commissioner to adjust all unsettled matters with the western In- 
 dians, but declined. He was an intimate friend from boyhood of James 
 Fenimore Cooper. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 373 
 
 ENKS, GRENVILLE T. (born in Boston in 1839 ; died in 
 Saratoga, New York, August 14, 1870), was a nephew of 
 Wendell Phillips. He was graduated from the University 
 of New York and entered the law office of Lott,Murphy & Van- 
 Being admitted to the bar, he became a member of the firm of 
 Pierson, Hyde & Jenks, and upon its dissolution organized the firm of 
 Jenks & Ward. He Was a highly effective jury advocate, and his early 
 death was greatly deplored. He lived in Brooklyn. 
 
 derberg 
 
 'EWETT, FREEBORN G. (born in Connecticut in 1791 ; died 
 in New York in 1858), was the first chief-judge of the Court 
 of Appeals chosen under the constitution of 1846. He had a 
 common school education, and after his admission to the 
 bar was prominent in politics and in law. He was inspector of state 
 prisons, county judge, circuit judge, a member of the assembly and. 
 member of congress. He resigned from the Court of Appeals in 1853. 
 The opinions he delivered while on the bench show him to have been a 
 judge of the clearest intellect, and his opinions construing the code of 
 civil procedure are especially lucid and are constantly cited as prece- 
 dents in other code states. 
 
 OHNSON, ALEXANDER S. (born in Utica, July 30, 1817 ; 
 died in Nassau, Bahama islands, January 26, 1878), went 
 through a course of study at Yale College, and was admitted 
 to the bar when twenty-one years old. He practiced in 
 IJtica and New York City. He was elected justice of the Supreme 
 Court at the first election under the constitution of 1846. In 1851 he 
 was elected to the Court of Appeals. This position he held for nine 
 years. In 1860 he returned to Utica and resumed the practice of the law. 
 President Lincoln, in July, 1864, appointed him United States commis- 
 sioner for the settlement, under the treaty with Great Britain, of 
 the Hudson Bay and Puget Sound companies' claims. The duties of 
 this office employed him for about three years. In January, 1873, he 
 was appointed to the bench of the Commission of Appeals, and in 
 December of the same year he was promoted to the Court of Appeals. 
 Subsequently he was appointed commissioner to revise the statutes of 
 New York, which position he resigned to accept the appointment of 
 United States circuit judge for the 2d judicial district. He was a 
 regent of the New York University. His rank as a jurist is high. His 
 opinions are marked by great research and original learning. 
 
874 
 
 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 OHNSON, THOMAS A. (died at Corning, New York, Decem- 
 ber 5, 1872), had at the time of his death been in continuous 
 service for twenty-five years as a Supreme Court justice. 
 He was elected to the supreme bench of the 7th judicial 
 
 district in 1847, and re-elected at each successive expiration of his term. 
 
 In 1864 he sat as a member of the Court of Appeals. Shortly before 
 
 his death, in 1 870, he was appointed by Governor Hoffman one of the 
 
 general term justices for the 4th department. 
 
 OHNSON, WILLIAM (born in Middletown, Connecticut, 
 about 1770; died in New York City in July, 1848), was 
 graduated at Yale College in 1788, and after admission to 
 ^ the bar engaged in legal practice. As the compiler of 
 " Johnson's Reports," his name and work are familiar to every New 
 York lawyer. He published "New York Supreme Court Reports, 
 1799-1803," "New York Chancery Reports, 1814-23," "Digest of 
 Cases in the Supreme Court of New York," and also a translation of 
 D. A. Azuni's " Sistema Universale deiprincipii del diritto maritimo 
 deW EuropaP He was Supreme Court reporter from 1806 to 1823, and 
 reported for the Court of Chancery from 1814 to 1823. It is the 
 unanimous testimony of his legal contemporaries that he was a man of 
 very excellent attainments and high character. The " Commentaries " 
 of Chancellor Kent are dedicated to him. According to William A. 
 Duer, he was " a man of pure and elevated character, an able lawyer, a 
 classical scholar, a gentleman and a Christian." And Judge Story has 
 paid him this handsome compliment : " No lawyer can ever express 
 a better wish for his country's jurisprudence than that it may possess 
 such a chancellor [Kent] and such a reporter [Johnson.] " 
 
 ONES, DAVID (born in Fort Neck, Long Island, September 
 16, 1699 ; died there, October 11, 1775), was a son of Thomas 
 Jones, one of the early settlers of Long Island. 1 He enjoyed 
 educational advantages exceptional for those times, and 
 chose the profession of the law. He pursued this calling in the City 
 of New York, being one of the leading members of the bar of the 
 period. In 1734 he received the appointment of judge of Queens 
 county, and he was a judge of the colonial Supreme Court for fifteen 
 years from 1758. Previously to his elevation to the Supreme Court 
 bench he had been speaker of the assembly thirteen years. 
 
 1 Thomas Jones, the father of David, came from a 
 Welsh family. He was a partisan of James II. in the 
 English dynastic revolution, fought in the battle of the 
 Boyne, fled to France, and from there sailed in 1692 
 under a letter of marque. In the same year he came to 
 Long Island, and, marrying Freelove Townsend, 
 
 daughter of Thomas Townsend, acquired by that union 
 and by purchases from the Indians a very large landed 
 estate. He was captain of the Queens county militia, 
 high sheriff of the county, major of the Queens county 
 regiment, and " ranger-general of the island of Nassau/ 1 
 as Long Island was then called. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 375 
 
 The circumstances of the appointment of David Jones to the Su- 
 preme Court bench are of much local historic interest. The court at 
 that time consisted of a chief-justice, De Lancey, and two puisne judges, 
 Chambers and Horsmanden. A case arose in which the title to lands 
 claimed by Trinity church was involved, and as both Chambers and 
 Horsmanden were trustees or vestrymen of Trinity, Chief- Justice De 
 Lancey having temporarily suspended his judicial functions to per- 
 form the duties of acting-governor, it became necessary to appoint a 
 third puisne judge. Jones was selected, and in November, 1760, he 
 tried the case of Brower vs. Trinity Church, the first of the famous 
 contests by the Anneke Jans heirs. Judge Jones, though of the epis- 
 copalian denomination, gave the suit a careful and impartial trial. He 
 resigned in the fall of 1773, owing to the infirmities of age. Through- 
 out his life he was attached to the episcopalian or high tory party. 
 
 ' ONES, DAVID S. (born in Westneck, Long Island, November 
 3, 1777 ; died in New York City, May 10, 1848), a son of 
 Samuel Jones the elder (q. v.), was graduated in 1796 at 
 Columbia College with the first honors, and soon after was 
 appointed by Governor John Jay as his private secretary. For a 
 number of years he was first judge of Queens county. He was three 
 times married, becoming allied successively to the Livingston, Le Roy 
 and Clinton families. Removing from his Long Island estate, at Mas- 
 sepaqua, to New York City, he took his place in the front rank of the 
 profession, and remained until his death one of its most conspicuous 
 lawyers, being also an active citizen. He was prominently identified 
 with the interests of some of New York's leading institutions — 
 Columbia College, the Society Library, the General Theological Semi- 
 nary, and others. 
 
 ONES, SAMUEL (born July 26, 1734 ; died in Westneck, Long 
 Island, November 21, 1819), was a grandson of the first 
 Thomas Jones (see David Jones, footnote), a nephew of 
 Judge Thomas Jones (q. v.) and a son of William Jones, a 
 respectable lawyer of the early colonial bar. His legal preceptor was 
 the New York chief -justice and historian, William Smith the younger. 
 Although attached to the crown sympathetically during the Revolu- 
 tion, and remaining inside the British lines, he was not a participant 
 in the war, and upon the establishment of peace he accepted the new 
 order of things, becoming one of the foremost of New York lawyers 
 and jurists and a prominent and valuable man in public life. 
 
 He served in the assembly from 1786 to 1790, and in the state 
 senate from 1791 to 1799, and he was conspicuous in the national 
 constitutional convention, taking in that body a decided federalist 
 
376 
 
 HISTORY OF THE BENCH AND EAR OF NEW YORK 
 
 attitude. His name is especially memorable in the annals of the 
 New York bar because of his connection with the first revision of 
 the statutes of the state. He was appointed with Richard Varick in 
 1789 to perform this important duty, and the resulting revision was 
 
 mainly his work. For eight years 
 
 Fsff^' * ? >jw from 1789 he occupied the office of 
 
 ,~ s ~ T ~~ r ~. recorder of New York City, and from 
 
 1796 to 1799 he was comptroller of the 
 state, not only being the first to hold 
 that position, but having prepared 
 the act under which the comptrol- 
 ler's office was organized. He was 
 succeeded as comptroller by James 
 Kent (afterward chancellor), who has 
 left a very high tribute to Mr. Jones' 
 attainments. "No one," says Chan- 
 cellor Kent, " surpassed him in clear- 
 L%i ...- *' ness of intellect and in moderation 
 
 "^ • ^s and simplicity of character ; no one 
 
 equalled him in his accurate knowl- 
 edge of the technical rules and doc- 
 trines of real property, and his famil- 
 iarity with the skillful and elaborate, 
 but now obsolete and mysterious, black-letter learning of the common 
 law." According to Doctor David Hosack, "common consent has 
 assigned him the highest attainments in jurisprudence, and the appel- 
 lation of father of the New York bar." 
 
 ONES, SAMUEL (born May 26, 1769 ; died in Cold Spring, 
 
 New York, August 9, 1853), the second son of the preceding, 
 
 was graduated at Columbia College in 1790. He obtained 
 
 his legal education in the office of his father, where De Witt 
 
 Clinton was at the same time a law student. As a practitioner and 
 
 jurist he was scarcely less eminent than the senior Samuel Jones. He 
 
 * . held the offices of assemblyman (1812-14), recorder 
 
 c/J^u^y^^- of the City of New York (1823), chancellor 
 
 & ^ (1 826-28), chief-justice of the Superior Court of 
 
 the City of New York (1828-47) and justice of the Supreme Court of 
 
 the state (1847-49). He lived to the advanced age of eighty-six, and 
 
 although he had completed his eightieth year upon his retirement as a 
 
 Supreme Court justice, he returned to the practice of his profession 
 
 and continued therein until two months before his death. 
 
HISTORY OF THE BENCH AND BAK OF NEW YOKK 377 
 
 ONES, SAMUEL (born in February, 1825 ; died in Pough- 
 keepsie, New York, August 11, 1892), a son of the preceding, 
 was graduated at Columbia College in 1845, and immediately 
 afterward commenced the study of law in the office of Daniel 
 Lord. He was admitted to the bar in 1847, and entered upon legal 
 practice in New York City. He was one of the first members of the 
 Association of the Bar, and for six years was a judge of the New York 
 City Superior Court (1866-72). Afterward he accepted an appoint- 
 ment as reporter of that court, and with ex-Judge James C. Spencer 
 edited twenty-seven volumes of reports. 
 
 
 ONES, SAMUEL WILLIAM (born in Cold Spring, New 
 York, July 6, 1791 ; died in New York City, December 1, 
 1855), a grandson of the elder Samuel Jones, was graduated 
 at Union College in 1810, and was a law student in the office of 
 his uncle, Samuel, the younger. Engaging in professional business in 
 Schenectady, New York, he became mayor of that city and afterward 
 surrogate and first judge of the county. 
 
 ONES, THOMAS (born in Fort Neck, Long Island, April 30, 
 1731 ; died in Hoddestown, Hertfordshire, England, July 25, 
 1792), was a son of David Jones (q. v.). He received a 
 collegiate education, being graduated from Yale in 1750, and 
 in 1755 was licensed to practice law in New York City, soon rising to 
 prominence. In the course of his professional career at the city bar he 
 was the attorney many years for the governors of King's College (now 
 Columbia), and he also was attorney for the corporation. He became 
 clerk of the Queen's county Court of Common Pleas in 1757, and from 
 1769 to 1773 was recorder of the City of New York, succeeding in that 
 office Simon Johnson, who had held it for 
 
 twenty-two years. He retired from the re- ^^ / 
 
 (October, 1773). He was one of the last crown 
 
 cordership to take the seat of his father on flrt'l/ffl'6C{ 
 the bench of the colonial Supreme Court /7 
 
 <M& 
 
 judges, holding at White Plains in April, 1776, the last court under the 
 British regime, although he retained his office until the end of the war. 
 His personal sympathies, family connections and other associa- 
 tions all caused him to espouse the loyalist side during the Revolu- 
 tion. He was allied to the aristocratic De Lancey family, having married 
 Anne, a daughter of the chief -justice. He maintained two handsome 
 residences, one facing the Great South bay, built for him by his father 
 and the other, named " Mount Pitt," erected by himself on his wife's 
 property between the Bowery and the East river. In June, 1776, he 
 was summoned by a committee of the New York provincial congress 
 
378 HISTORY OF THE BENCH AND BAB OF NEW YORK 
 
 to appear and show why he " should be considered a friend of the 
 American cause," and, refusing to obey, was placed undei arrest, taken 
 to New York City, and there released on giving his parole to appear 
 at the command of congress. Subsequently, on the ground that the 
 parole was null, he was removed to Connecticut, but was discharged 
 on a second parole. Again he was arrested, notwithstanding his 
 parole, and sent to Connecticut, where he was exchanged for General 
 Selleck Silliman, his old personal friend. This was in 1780. The next 
 year, in March, he sailed for England. He spent the rest of his life 
 there, being attainted of treason in New York, and his estates being 
 confiscated ; but his Great South bay property, with its historic house, 
 has ever since remained in the family of his daughter, Arabella, who 
 married Richard Floyd. 
 
 Judge Jones wrote a " History of New York during the Revolu- 
 tionary War," from the loyalist standpoint, which, edited by his 
 descendant, Edward Floyd De Lancey, was reprinted for the New 
 York Historical Society in 1879. 
 
 ORDAN, AMBROSE LATTING (born in Hillsdale, Columbia 
 I county, New York, May 5, 1789 ; died in New York City, 
 July 16, 1865), spent his early boyhood on a farm, and was 
 self-educated. At the age of eighteen he entered a law office 
 in Albany, and in 1812 he was admitted to the bar. He commenced 
 practice at Cooperstown, New York, and became district- attorney and 
 surrogate of Oswego county. In 1820 he removed to Hudson, and the 
 next year he was made recorder of that place and presiding-judge of 
 the Mayor's Court. He gained much reputation in 1826 by his suc- 
 cessful prosecution of a student of Kinderhook Academy for the 
 murder of a farmer's son in a street brawl, the lawyers opposed to him 
 being Thomas J. Oakley, Benjamin F. Butler and Campbell Bushnell. 
 For twelve years more he continued to practice at Hudson, being one 
 of the best known attorneys at the Columbia, Ulster, Greene, Dutchess 
 and Westchester circuits. In 1838 he won for his client the first breach- 
 of-promise suit in which a lady was the defendant. Henry R. Storrs 
 was the opposing counsel in this case. Soon afterward he went to 
 New York City, where he. spent the remainder of his active life in very 
 successful practice. 
 
 Mr. Jordan in the early part of his professional career took some 
 interest in politics. He represented Columbia county in the assembly 
 in 1825, and he was a member of the senate from 1826 to 1829. The 
 senate at that period constituted the Court of Errors, and was the 
 court of last resort. Mr. Jordan's opinions as one of its judges are 
 recorded in 8 Cowen, 589, 623. He was a delegate to the constitutional 
 convention of 1846 and attorney-general of the state in 1847, being the 
 first to hold that office by popular election. 
 
HISTORY OF THE BENCH AND BAB OF NEW YORK 
 
 379 
 
 ENT, JAMES (born in Philippi, Putnam county, New York, 
 July 31, 1763 ; died in New York City, December 12, 1847), 
 ranks probably as the very first of American jurists. There 
 is some discrepancy among his biographers concerning the 
 events of his youth. His birthplace has been said to have been in 
 Dutchess county, at Frederickton, now Kent, but according to the best 
 authority he was born in Putnam county, at Philippi. His grand- 
 father, Elisha Kent, was the son of a farmer in Connecticut, was grad- 
 uated at Yale in 172S, married a daughter of the Reverend Doctor 
 Moss, of Connecticut, preached some time at Newtown, and then 
 became the pastor of the presbyterian church at Philippi (1740), dying 
 there in 1776. His parish was known as Kent's parish. Moss Kent, 
 his oldest son, was graduated from Yale in 1752, and was admitted in 
 1756 to the bar of Dutchess county. He became surrogate of Rens- 
 selaer county, and died in 1794. 
 
 James Kent was sent at the age of five to a school in Norwalk, 
 Connecticut, and afterward attended a Latin school in Danbury, Con- 
 necticut, where he prepared for Yale. He en- 
 tered Yale in 1777 and was graduated in 1781. 
 In his diary he records his opinion of the 
 weakness of Yale's curriculum at that time. 
 While at Yale he was one of the founders of 
 the Phi Beta Kappa Society. 
 
 Before his graduation he by accident one 
 day picked up a copy of Blackstone's Com- 
 mentaries, and he has recorded how it im- 
 pressed him : " When the college was broken 
 up and dispersed in July, 1779, by the British, 
 I retired to a country village, and finding 
 Blackstone's Commentaries I read the four 
 volumes. Part of the work struck my taste, 
 and the work inspired me at the age of fifteen 
 with awe, and I fondly determined to be a lawyer." In November, 1781, 
 he began the study of law with the celebrated Egbert Benson, the first 
 attorney-general of the state, and afterward one of the judges of the 
 Supreme Court. At this time Benson was the acknowledged leader of 
 the New York bar. Kent continued in his office at Poughkeepsie until 
 he had fully grounded himself in the principles of the profession. His 
 range of reading during his student life was large. Besides law he 
 read works of general literature and took up French, of which he later 
 became a master. He also continued to cultivate his Greek and Latin. 
 In 1785 he was licensed as an attorney, and in 1787 he was admitted to 
 the bar as counsellor at Albany. He married in 1785 Elizabeth Bailey, 
 the sister of Theodorous Bailey, who was subsequently United States 
 senator. Immediately after his admission he opened an office at 
 Catron, New York, which has since become a part of the State of Con- 
 
 JAMES KENT AS A YOUTH. 
 
Li80 HISTORY OF THE J3ENCJI AND BAR OF NEW YORK 
 
 necticut. In that village lie failed to obtain a single piece of legal 
 work to do. In the diary of his life he has left an amusing account of 
 why he left Catron. He was waited on by a committee of the town, 
 who informed him that the people regarded lawyers as destructive of 
 the peace and order of the people, and hence had been deputized to 
 call on him and ask him to remove from the town. Mr, Kent informed 
 the committee that he would go at once, and in about a month there- 
 after he undertook practice in Frederickton, Dutchess county. He 
 remained there but a few months, when he was induced by friends to 
 go to Poughkeepsie. Soon after his removal to Poughkeepsie he 
 entered into an association with Gilbert Livingston. The articles of 
 copartnership provided for a term of twelye years. The firm im- 
 mediately acquired a very good business. 
 
 After two years of practice at Poughkeepsie Mr. Kent was elected 
 (1790) to represent Dutchess county in the state legislature, and in 
 1792 he was re-elected. He acted with the federalists. While he was 
 a member of the legislature Aaron Burr was chosen by it a United 
 States senator. Kent voted for Schuyler. In 1792 he took a very 
 prominent part in the contest for the governorship between John Jay 
 and George Clinton. He favored Jay, and wrote a very able argument 
 in support of Jay's election when the matter of contest was referred by 
 the legislature to the judgment of the two United States senators, 
 King and Burr. In this argument he showed the fallacies in Burr's 
 opinion to the effect that the disputed election was in favor of Clinton. 
 But the attitude thus taken by Mr. Kent did not cause a rupture of his 
 social relations with Burr. " I have dined and breakfasted with Mr. 
 Burr," he wrote at this time, "and have received great attention and 
 politeness from him. The insinuation of his manners is equal to the 
 refinement of his taste and activity of his mind." While still in the 
 legislature he ran for congress, but was defeated. 
 
 In 1793, after his term in the legislature had expired, he removed 
 to New York City. During his first year's practice there Governor 
 Jay, to whom Kent's federalist sympathies were a strong recommenda- 
 tion, appointed him a master in chancery for the city. The New York 
 City bar of that era shone with a brilliancy rarely since equalled. 
 Aaron Burr, Alexander Hamilton, Josiah Ogden Hoffman, Brockholst 
 Livingston, Egbert Benson and James Duane were then in full practica 
 Kent had the advantage of having dealings with all these great lawyers 
 while he was a master in chancery. His attention was called to the 
 old writers on civil laws and their modern expounders ■ in Europe by 
 Alexander Hamilton. He read and studied such works as those of 
 Pothier and Emerigon, and became familiar with the whole school of 
 French commentators on the civil law. This rounded out his legal 
 education and fitted him to lecture, and in the year 1793 he was 
 appointed professor of law in Columbia College. He began his lectures 
 in November, 1794. Of his first course he afterward wrote : " I read a 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 381 
 
 course in 1 794-95 to about forty gentlemen of the first rank in the 
 city. They were very well received, but I have long since discovered 
 them to have been slight and trashy productions." In 1798 he was 
 sent to the legislature from New York City. As to the position he 
 occupied at Albany there is no authentic record. His qualities were 
 judicial rather than executive or legislative. He probably had much 
 of the character of a silent member. In 1797 he became recorder of the 
 City of New York, but in less than a year he resigned to accept an 
 appointment as judge of the Supreme Court. In 1804 he was made 
 chief -justice. 
 
 The Supreme Court of New York as then constituted was a per- 
 fect copy of the English King's Bench. It was not in any sense a local 
 or county court, but was a state court which sat in banc at New York 
 City and Albany, and the judges rode 
 the circuit of the counties and took ver- 
 dicts. The court was a unity and con- 
 sisted of a certain number of judges and 
 a chief -justice, with jurisdiction extend- 
 ing all over the state. In Kent's time, 
 at least when he went on the bench, 
 Albany county comprised a vast part 
 of the northern and western portion of 
 of the state. Most of the business of 
 the Supreme Court was transacted at 
 Albany, and in 1799 Judge Kent re- 
 moved to that city. He served on the 
 Supreme Court bench until 1814. His 
 opinions from the supreme bench are 
 reported in the " Reports " of George 
 Caines and in the " Reports of Cases in 
 the Supreme Court and Court of Errors 
 of New York from 1806 to 1823," by 
 William Johnson. 
 
 Kent's common-law opinions have been overlooked by the profession 
 while associating him with equity jurisprudence. In them he origin- 
 ated many principles of law. Had it not been for his transcendent 
 fame as a chancellor, which somewhat obscures his reputation as a 
 common-law judge, his decisions while on the supreme bench would 
 have made him famous. His first reported decision is found in 1 John- 
 son's Cases, 1. From the reading of this opinion one can see at a glance 
 how perfectly prepared he was to assume the judicial ermine. It is a 
 model of clear statement and logical reasoning. He adopted in it a style 
 of writing which he pursued while on the bench, that of first stating 
 just what the point or points to be decided was or were, and then pro- 
 ceeding to deal with each point from a legal standpoint. There is never 
 any doubt in the mind of a lawyer just what Kent decided. The point 
 
382 HISTORY OE THE BENCH AND BAR OP NEW YORK 
 
 determined is stated with a clearness unrivalled by any other American 
 judge. It is quite a coincidence that the case alluded to above (Seton 
 vs. Low) should have been one involving questions of commercial law 
 and the law of insurance, in which branch of jurisprudence Kent par- 
 ticularly shines in his " Commentaries." The opinion begins thus : 
 "Two questions were raised on the argument in this case : 1. Whether 
 the contraband goods were lawful, within the meaning of the policy. 
 2. If lawful, whether the assured were bound to disclose to the defendant 
 the fact that part of the cargo was contraband of war." This method of 
 delivering an opinion may reasonably be commended to the judges of 
 the present day, who too often leave it in doubt precisely what point 
 or points their opinions involve. In Kent's second reported case, that 
 of Ludlow vs. Dale (Johnson's Cases, 16), there appeared before the court 
 of which he was a member a great array of legal talent. Hoffman and 
 Livingston represented the plaintiff and Harison and Alexander 
 Hamilton the defendant. It was an insurance case. The point in- 
 volved was whether the sentence of an admiralty court of a bellig- 
 erent precludes all further inquiry respecting the neutrality of the prop- 
 erty. He rendered a decision replete with learning, and cited a long 
 list of English cases to justify his conclusion that the foreign judgment 
 was final. In the case of Jackson vs. Rogers (1 Johnson's Cases, 33) 
 we find him taking part in banc on a motion for a new trial in an 
 ejectment suit. Spencer and Burr were among the counsel for the 
 plaintiff, and Van Vechten for the defendant. Judge Kent gave his 
 decision in favor of Burr's client. The case is important as containing 
 a model exposition of exactly what constitutes a disseisin, and the dis- 
 tinction between a disseisin by election as contradistinguished from a dis- 
 seisin in fact. In Johnson vs. Bloodgood (1 Johnson's Cases, 54) he lays 
 down the doctrine that courts of law will take notice of assignments 
 and trusts, and consider who are beneficially interested, and will pro- 
 tect the cestuy que trust. In Betts vs. Turner (1 Johnson's Cases, 70) 
 he defines the rule for the construction of covenants and what consti- 
 tutes a performance or a breach. With all the learning that has been 
 expended on the subject of the performance and breach of covenants 
 since Kent's time, nothing new has been developed in principle from 
 that laid down by him in this last case. The opinion is a model of 
 conciseness and brevity. In Frost vs. Carter (1 Johnson's Cases, 73) he 
 construes an insolvent law and arrives at the conclusion that if an in- 
 dorser pay a note after the maker has been discharged under the 
 insolvent act, he may recover the amount from the maker, whose dis- 
 charge will be no bar to the action. In Jackson vs. McCrea (1 John- 
 son's Cases, 114) he was called on to decide against his mentor and idol, 
 Hamilton. The case involved the question as to what constitutes a 
 delivery of a deed. In the United States Bank vs. Haskins (1 John- 
 son's Cases, 132) he decides a question of pleading against Aaron Burr. 
 In People vs. Olcott (2 Johnson's Cases, 301) he delivers one of his most 
 
HISTORY OP THE BENCH AND BAR OP NEW YORK 383 
 
 striking and learned decisions. He holds that the court may, in its 
 discretion, in a criminal case, discharge a jury who are unable to agree 
 on a verdict, and against the consent of the defendant, who may be 
 brought to trial a second time for the same offence. He reviews the 
 entire law about extorting a verdict from an unwilling jury by means 
 of starvation and darkness, and arrives at the conclusion " that the 
 position, generally denying the power of the court to discharge a jury 
 sworn and charged in a criminal case, has originated (probably without 
 further examination or inquiry) from a dictum to be found in the in- 
 stitutes of Lord Coke, and that this dictum rests upon his single au- 
 thority, without the sanction of any judicial decision." 
 
 The most important case that Kent decided while on the supreme 
 bench was that of People vs. Croswell (3 Johnson's Cases, 337). There 
 was a deal of political excitement connected with this suit. The de- 
 fendant had been convicted of printing and publishing a scandalous 
 libel upon Thomas Jefferson, president of the United States, and a 
 motion was made to set aside the verdict because the trial judge erred 
 in not allowing the defendant to prove the truth of the alleged libel 
 and in not' permitting the jury to pass on the question of intent of the 
 defendant. In connection with Harison and Yan Ness, two very emi- 
 nent lawyers, Alexander Hamilton appeared for the prisoner, and 
 this was one of the last cases he argued. The attorney-general, 
 Spencer, appeared for the state. The whole question of libel was 
 argued in extenso, Hamilton making one of the greatest efforts of his 
 life. Kent subsequently said he had never read or listened to such an 
 argument as that of Hamilton in this case. The court was divided on 
 the question and the motion for a new trial was lost, but Croswell was 
 never punished, as no motion was ever made for judgment. Kent 
 delivered what is probably his very greatest opinion, either at law or 
 in equity, reviewing the entire history of libel, and holding that the 
 defendant was entitled to give in evidence upon the trial the truth of 
 the libel. He drew principles and illustrations from the civil law and 
 made a minute historical analysis of the English decisions, rejecting 
 Lord Mansfield's famous conclusion that " the greater the truth, the 
 greater the libel." In 1805 a " libel bill " was passed by the legislature 
 which embodied the views contended for by Kent. 
 
 It is needless to examine in further detail the opinions delivered 
 by Kent when a Supreme Court judge. The reports of Johnson and 
 Caines are replete with his determinations upon all manner of ques- 
 tions. These determinations are the very fountain-head of common-law 
 learning in America, and are daily referred to and cited in our courts. 
 
 In 1814 he was appointed chancellor of the state to succeed Lans- 
 ing. Chancery law had been very unpopular during the colonial 
 period, and had received down to his time but little development, no 
 decisions having been published. Immediately after his appointment 
 he had the legislature pass an act providing for a reporter to the 
 
384 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 Chancery Court, and William Johnson was selected. Johnson had 
 been the reporter of the Supreme Conrt while Kent was a member of 
 it, and the two were great friends. He bears the same relation to Kent 
 that Burroughs does to Lord Mansfield and Boswell to Doctor John- 
 son. He reported all of the chancery decisions while Kent sat as chan- 
 cellor. The condition of chancery jurisprudence in America, and 
 especially in New York, at the time Kent accepted the office, is well 
 summed up by Kent himself : 
 
 For the nine years I was in that office there was not a single decision, opinion, 
 or dictum of either of my two predecsssors cited by me, or even' suggested. I took 
 the court as if it had been a new institution and never before known in the United 
 States. I had nothing to guide me, and was left at liberty to assume all such Eng- 
 lish chancery powers and jurisdiction as I thought applicable under our constitution. 
 This gave me grand scope, and I was only checked by the revision of the senate 
 or Court of Errors. I opened the gates of the court immediately, and admitted 
 almost gratuitously the first year sixty-five counsellors, though I found there had 
 been but thirteen admitted for thirteen years before. Business flowed in with rapid 
 tide. The result appears in the seven volumes of Johnson's Chancery Reports. 
 My course of study in equity jurisprudence was very much confined to the topics 
 elected by the cases. I had previously read the modern equity reports down to 
 that time, and of course I read all the new ones as fast as I could procure them. I 
 remember reading Peere Williams as early as 1792, and made a digest of the lead- 
 ing doctrines. I always took up the cases in their order, and never left one until I 
 had finished it. This was only doing one thing at a time. My practice was first to 
 make myself perfectly and accurately (mathematically accurately) master of the 
 facts. It was done by abridging the bill, and then the answer, and then the deposi- 
 tions, and by the time I had done this slow and tedious process I was master of the case, 
 and ready to decide it. I saw where justice lay, and the moral sense decided the 
 case half the time, and then I sat down to search the authorities until I had ex- 
 hausted my books, and I might once in a while be embarrassed by a technical rule, 
 but I most always found principles suited to my view of the case, and my object 
 was to discuss a point so as never to be teased with it again, and to anticipate an 
 angry and vexatious appeal to a popular tribunal by disappointed counsel. 
 
 Kent's decisions while chancellor cover a wide range of topics, and 
 are so thoroughly considered and developed as unquestionably to form 
 the basis of American equity jurisprudence. His first equity decision 
 concerns itself with the scope of the writ of ne exeat, where he holds 
 that the writ cannot be granted for a debt recoverable at law. In the case 
 of Nicoll vs. Trustees (Johnson's Chancery, 166), he lays down the doc- 
 trine that the peculiar state of property and the oppressive nature of 
 the litigation at law, as to the title, affords a proper ground for the 
 equitable jurisdiction of the court, and that the party may come into 
 equity first to have his title tried at law under its superintendence, or 
 he may have the title established at law before he come into equity. 
 In Parkhurst vs. Van Cortlandt (Johnson's Chancery, 274), questions 
 arising under the statute of frauds are dealt with. This case shows 
 Kent's equitable mind to the fullest advantage. While he refused 
 specific performance he retained the bill until compensation was made 
 the petitioner for improvements. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 385 
 
 The most important case Kent decided while chancellor was his 
 last, reported under the title of Jerome vs. Ross (7 Johnson's Chan- 
 cery, 315). The opinion is a veritable mine of equity learning. The 
 petitioner sought an injunction against a threatened trespass on his land 
 by commissioners who were building a canal, being authorized thereto 
 by statute. The injunction was denied on the ground that an injunc- 
 tion to restrain a mere trespass, where the injury is 'not irreparable and 
 destructive to the plaintiff's estate, but is susceptible of pecuniary 
 compensation, could not be granted. This decision is one of the land- 
 marks of equity practice touching injunctions. He reviewed the whole 
 history of the law of injunctions and denied that chancery had power 
 to usurp common-law jurisdiction by means of this writ. In these 
 days, when the instrument of injunction is invoked in every case re- 
 mediable at law, it might be well for courts to read Kent before 
 granting it. His reasoning shows him to have been in full sympathy 
 with Lord Eldon's views touching equity, to the effect that equity 
 jurisprudence should be systematic and not founded on the mere ipse 
 dixit of the chancellor, as Lord Hardwicke and later Sir George Jessel 
 were wont, by their actions, to assume. 
 
 While still chancellor, Kent became, in ] 822, a member of the con- 
 vention to revise the state constitution, and in 1823, having attained 
 the age of sixty, he resigned the chancellorship, because the consti- 
 tution inhibited his holding the office after that age. His retirement 
 was contemplated by the bar with the deepest concern, and the members 
 residing in the City of New York appointed a committee to prepare 
 an address on the occasion, which was adopted, and the committee 
 were requested to transmit the report to him at Albany. The address 
 was signed by all the leading lawyers of the city, and expressed their 
 regret that his term of service had expired. 
 
 After his resignation he removed from Albany, where he had lived 
 while chancellor, to New York City, and resumed the delivery of law 
 lectures at Columbia College. He also practiced law as chamber 
 counsel. Out of the lectures he now delivered grew the " Commen- 
 taries on American Law," the first edition of which was published in 
 1826-30. These commentaries have, by their learning, range and lu- 
 cidity of style, won for him a high and permanent place in the esti- 
 mation of both English and American jurists. 
 
 At the present time there is a renaissance in the study of Kent. 
 Oliver Wendell Holmes has, in his edition of the . commentaries, 
 pointed out Kent's great juristic powers, while the distinguished Eng- 
 lish jurist, Sir Frederick Pollock, has on more than one occasion made 
 mention of his indebtedness to Kent. Judge Dillon, in his work on 
 the "Laws and Jurisprudence of England and America," pays this 
 tribute to him : 
 
 The American bar and people venerate the name and character of Chancellor 
 gent, Simple as a child in his tastes and habits throughout his tranquil and useful 
 
386 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 life ; more than any other person the creator of the equity system of this country, 
 the author of commentaries which, in accuracy and learning, in elegance, purity 
 and vigor of style, rival those of Sir William Blackstone, his name is admired, his 
 writings prized, his judgments at law and in equity respected in every quarter of the 
 globe (and nowhere more than in England), wherever in its widening conquest the 
 English language, which is the language of freedom, has carried the English law. 
 
 He continued to live in New York City, delivering law lectures 
 and acting as chamber counsel, till his death. 'He was very fond of 
 country life, and used frequently to go on short pilgrimages to the 
 neighborhood of New York City. He was a man of great purity of 
 character, of singular simplicity and gentleness, and is altogether a 
 conspicuous figure in American history. 
 
 ENT, WILLIAM (born in 1802 ; died in Fishkill, New York, 
 January 4, 1861), was the son of Chancellor Kent. He was 
 early educated to the law and soon rose to considerable 
 prominence in his profession. In 1841 he was appointed 
 circuit judge of the 1st circuit by Governor Seward, holding the posi- 
 tion until 1846, when he resigned to accept the professorship of law in 
 Harvard University. In 1847 he resigned from Harvard and returned 
 to New York City. He was a scholarly and able lawyer. He co-operat- 
 ed with Benjamin F. Butler and David Graham the younger in, organiz- 
 ing (March, 1838) the law faculty of the University of the City of New 
 York, and was one of its original lecturers. 
 
 pljERNAN, FRANCIS (born in what is now the town of Tyrone, 
 Schuyler county, New York, January 14, 18 16 ; died in Utica, 
 New York, September 7, 1892), was of Irish descent, being 
 the son of General William Kernan, an influential citizen of 
 
 Schuyler county. He worked on his father's farm until he was seven- 
 teen years old, meantime attending a district school, and then entered 
 Georgetown College, in the District of Columbia, where he remained 
 until 1836. Upon leaving that institution he immediately began the 
 study of law at Watkins, in his native county. In 1839 he entered the 
 law office of Joshua A. Spencer, in Utica, and after his admission to the 
 bar in the following year he became Mr. Spencer's partner. The Utica 
 bar at that period embraced some of the ablest lawyers of the state, 
 including, besides Mr. Spencer, such man as Hiram Denio, Samuel 
 Beardsley, Ward Hunt, William and Charles Tracey and Charles P. 
 Kirkland, and young Kernan very soon took rank with them, being 
 recognized as one of the leading practitioners in central New York. 
 Meantime he took a hearty interest in politics, as a democrat, but 
 never sought office. His subsequent important political career was due 
 to his admitted intellectual fitness as a foremost leader of his party, 
 and not to any personal seeking. 
 
 From 1854 to 1857 he served as official reporter of the Court of 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 387 
 
 Appeals, publishing four volumes of reports. In 1860 he was elected to 
 the assembly, and he was one of the most prominent members of that 
 body. In 1862 he was chosen a representative in congress, defeating 
 Eoscoe Conkling. He rendered valuable services in the house as a 
 member of the judiciary committee. ^He was a candidate for re-elec- 
 tion in 1864, but was beaten by Mr. Conkling^ In 1867, as a member 
 of the constitutional convention, he aided in framing the new judiciary 
 system of the state. Prom 1870 until his death he was connected with 
 the board of regents of the State University. He led his party as 
 candidate for governor in 1872, when General Dix was elected to that 
 office, and in 1875 he was chosen by the legislature senator of the 
 United States. He retired from the senate in 1881, the republicans 
 having again gained the ascendency in the New York legislature. 
 
 ETCHAM, LEANDER SMITH (born in Marion, Wayne 
 county, New York, August 31, 1818 ; died in Clyde, Wayne 
 county, New York, March 27, 1870), obtained his legal educa- 
 tion by private study, and after admission to the bar was a 
 practitioner in Clyde, New York. He was a surrogate and judge of 
 probate for eight years from 1852, was active in raising troops for the 
 union army and served in the constitutional convention of 1867. His 
 decisions invariably stood the test of review in the higher courts, not 
 one of them being reversed: 
 
 ETCHUM, EDGAR ' (born in New York City, in August, 1811 ; 
 died there, March 3, 1882), studied law in the office of Daniel 
 P. Ingraham, for many years a judge of the Supreme Court 
 of the state, and was at different times associated with the 
 late James W. Gerard (the elder) and the late Isaac Adriance. He 
 practiced in all the state courts, and those of the United States— includ- 
 ing the Supreme Court, — conducting many important and celebrated 
 litigations therein. He preferred, however, real estate law and convey- 
 ancing, and devoted himself largely to this branch of practice. He was 
 very familiar with titles, especially in the upper part of Manhattan 
 island, and was often consulted as an expert by other lawyers upon 
 questions of title to property in that part of the city. He was frequently 
 chosen as referee by opposing counsel in cases involving complicated 
 legal questions, and where large interests were represented. In the 
 forties he was public administrator, and later he was appointed loan 
 commissioner of the City and County of New York, serving for twelve 
 years, when he was appointed by President Lincoln interval revenue 
 collector for the 9th district of New York City. In 1 867 Chief -Justice 
 Chase made him a register in bankruptcy, which position he held until 
 his death. He gave warm support to the anti-slavery cause, devoted 
 
 i We are indebted to Colonel A. P. Ketcham (see Vol, ii., p. 333) for the materials for tais eketca. Editoe, 
 
 ^2^, 
 
388 
 
 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 much attention to the public schools of New York City, and was 
 earnestly interested in various benevolent and religious enterprises. 
 
 INC, JOHN ALSOP (born in New York City, January 3, 
 1788 ; died in Jamaica, New York, July 7, 1867), was the 
 eldest son of Eufus King (q. v.). He was educated abroad 
 and admitted to the bar in New York upon his return. In 
 the war of 1812 he was a lieutenant of cavalry, and afterward he served 
 in the assembly for a number of years, where, though he favored the 
 Erie canal, he took issue against some of De Witt Clinton's measures 
 of policy. Later he went to England with his father as secretary of 
 legation. He was again in the assembly in 1838. As a whig member 
 of congress when the compromise measures, including the fugitive 
 slave law, were adopted, he opposed them vigorously and favored 
 admitting California as a free state. In 1855 he was the presiding 
 officer of the Saratoga convention, which organized the republican 
 party in New York, and he was instrumental, as a delegate to the 
 republican national convention of 1856, in the nomination of Fremont 
 for the presidency. He was governor of New York for one term from 
 January 1, 1857, declining a renomination. In 1861 he was appointed 
 by Governor Morgan a delegate to the peace convention. 
 
 INC, PKESTON (born in Ogdensburg, New York, October 14, 
 1806 ; drowned in the Hudson river, November 12, 1865), was 
 graduated at Union Col- 
 lege in 1827, and after 
 
 his admission to the bar began 
 
 to practice, in Saint Lawrence 
 
 county. He early became active 
 
 politically as a Jacksonian demo- 
 ' crat, and in 1830 founded the 
 
 Saint Lawrence Republican at 
 
 Ogdensburg. He held the office 
 
 of postmaster of that town, and 
 
 from 1834 to 1837 he served as a 
 
 member of the assembly. He 
 
 was a democratic representative 
 
 in congress from 1849 to 1853, 
 
 but afterward became identified 
 
 with the newly- organized repub- 
 lican party. He was an unsuc- f^^?' ^sJS 1 " 
 
 cessful candidate for secretary of • 
 
 state of New York in 1855. In 
 
 1857 he was chosen senator of the United States. During the session of 
 
 the senate early in 1861, before the inauguration of Lincoln, Senator 
 
 -7l^L 
 
 '-? 
 
ITISTOBY OE THE BENCH AND BAR OP NEW YORK 389 
 
 King made a notable speech declaring his belief that the sections would 
 never be reconciled if to that end it was necessary to render " ignomin- 
 ious submission to traitors," and announcing his readiness to " provide 
 means for the defence of the country by war." He retired upon the 
 completion of his term, in 1 863, returning to his professional practice 
 in the City of New York. He took an active part in obtaining the 
 nomination of his friend, Andrew Johnson, for the vice-presidency by 
 the republican national convention of 1864, and by President Johnson's 
 appointment he later became collector of the port of New York. He 
 ended his life — his mind being deranged by troubles — by jumping from 
 a Jersey City ferry-boat. 
 
 ING, RUFUS (born in Scarborough, Maine, in 1755 ; died in 
 New York City, April 29, 1827), the eldest son of Richard 
 King, a prosperous Scarborough merchant, was graduated at 
 Harvard College in 1777, and began the study of law under 
 Theophilus Parsons, at Newburyport, Massachusetts. He accompanied 
 the Rhode Island expedition of General Sullivan in 1778 as aide, and 
 being honorably discharged resumed his legal studies and was admit- 
 ted to practice. He became one of the leading members of the Massa- 
 chusetts bar, and soon took a prominent part in public life, being 
 elected to the general court in 1783 and to the continental congress in 
 1784, 1785, and 1786. His career in congress is especially memorable 
 for the introduction of a resolution by him (1785) providing that " there 
 should be neither slavery nor involuntary servitude in any of the states 
 described in the resolution of congress in April, 
 1784," which became the basis for the ordinance of 
 1787 concerning the government of the northwestern " ~~y ^Z' ! _' "~y 
 territory. He served as a commissioner to determine 
 the Massachusetts and New York boundary, as a commissioner to con- 
 vey to the United States the lands west of the Alleghenies, and (jointly 
 with James Monroe) as a representative from congress to urge the 
 Pennsylvania legislature to pay the five per cent, interest tax. He was 
 a delegate from Massachusetts to the national constitutional conven- 
 tion, was very prominent in the debates of that body, was one of the 
 members who prepared the final draft of the federal constitution, and 
 subsequently rendered most valuable services in inducing the state of 
 Massachusetts to ratify that instrument. 
 
 In 1788 Mr. King removed to New York, and although he did not 
 actively practice his profession at the bar in this state, his distinction 
 for many years as a citizen in public employments of great honor and 
 responsibility was the completion of the eminent career for which his 
 attainments as a jurist had laid the foundations. In 1789 he was elected 
 to the legislature, which promptly chose him, with Schuyler, to repre- 
 sent the state in the national senate. He was a warm friend of Alex- 
 ander Hamilton, and collaborated with him in the " Camillus " letters 
 
 JuUuJ_M^.a 
 
390 HISTORY OF THE BENCH AND BAB OF NEW YORK 
 
 in defence of Jay's treaty, Senator King's contributions to those cele- 
 brated letters being devoted especially to questions of maritime law 
 and commerce. He was re-elected to the senate, but resigned from 
 that body to become minister to England, serving from 1796 to 1803. 
 Afterward he lived in retirement for ten years at his country home in 
 Jamaica, Long Island. Being again sent to the senate 'in 1813, he gave 
 earnest support to the government in the war with England, although 
 he had opposed the war on grounds of principle. He was defeated 
 as a candidate for governor, and also as a candidate of the federalists 
 for president against Monroe. He was once more elected to the senate 
 in 1819, being chosen (as he had been in 1813) by a non-partisan vote. 
 Thoughout this second period of his senatorial service, extending from 
 1813 to 1825, he was identified in a very important manner with the 
 consideration of the great measures of public policy. He opposed the 
 creation of the national bank, and also opposed not only the admission 
 of Missouri as a slave state, but likewise the Clay compromise plans, 
 expressing himself decidedly against slavery as a matter of principle. 
 In 1825 he was appointed by President Adams to the British mission, 
 but soon after assuming its duties his infirm health compelled him to 
 resign. 
 
 flRKLAND, CHARLES PINCKNEY (born in New Hartford, 
 near Utica, New York, April 7, 1798 ; died in New York City, 
 August 7, 1883), was a son of Joseph Kirkland, a leading 
 citizen and lawyer of Utica. He was graduated at Hamilton 
 College in 1816, and was prepared for the bar at the Litchfield, Con- 
 necticut, Law School, which was then at the height of its prosperity 
 and renown. He practiced in Utica until 1851, first in partnership 
 with his father and later with William J. Bacon, afterward justice of 
 the State Supreme Court. In 1838 he became mayor of Utica, and he 
 was a member of the New York constitutional convention of 1846, 
 taking a conspicuous part in its deliberations. During his early pro- 
 fessional career he was constantly occupied as counsel before the Court 
 of Errors and the old Supreme Court. In 1851 he removed to New 
 York City, where he continued to live until his death. He ranked as 
 one of the most important members of the metropolitan bar, possessed 
 a very large practice, and was noted for his indefatigable industry. 
 
 |NICKERBOCKER, HERMAN (born in Albany, New York, 
 July 27, 1782 ; died in Williamsburg, New York, January 
 30, 1855), was a son of Johannes Knickerbocker, and in- 
 herited from him the large Knickerbocker estate at Schagti- 
 coke. 1 He was a college graduate, was admitted to the bar, practiced 
 
 1 The ancestor of the Knickerbocker family was Her- Albany. Johannes Knickerbocker, the father of Her 
 
 man Jansen Knickerbocker, who emigrated from man, was a colonel in the Revolution, being present at 
 
 Friesland, Holland, and was one of the earliest settlers. Burgoyne's surrender at Saratoga, and later served in 
 
 His property was the result of a grant from the city of the legislature as a member from Rensselaer county. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 391 
 
 for a while at Albany, was a federalist member of congress (1809-11), 
 served in the assembly (1817), and was a judge of his county. He dis- 
 pensed generous hospitality, and was called the " Prince of Schagti- 
 coke." Observing the time-honored custom of his family — which was 
 made a condition of the original grant— he entertained the mayor and 
 council of Albany annually at the mansion. In his latter years he 
 became financially embarrassed. 
 
 ANSING, JOHN (born in Albany, January 30, 1754 ; mysteri- 
 ously disappeared, December 12, 1829), was the second chan- 
 cellor of the state. He graduated at King's College, and 
 read law in Albany with Yates (subsequently chief- justice) 
 and then with James Duane in New York City. In 1776-77 he was 
 on Philip Schuyler's military staff. He began the practice of law at 
 Albany, and from 1780 to 1784 he was a member of the assembly from 
 that city. From 1784 to 1786 he was a representative in the con- 
 tinental congress. In 1786 he was chosen to the New York assembly and 
 was elected speaker. He was appointed mayor of Albany in the same 
 year. In 1787 he again went to the continental congress as a delegate, 
 and also was appointed by the New York legislature, with Hamilton 
 and Robert Yates, a delegate to the convention to formulate a federal 
 constitution. After taking part in the deliberations of that body both 
 Lansing and Yates withdrew and refused to vote for the constitution, 
 on the ground that they had been chosen to amend the articles of con- 
 federation, not to substitute for them a new scheme of central govern- 
 ment ; but in 1788, as a delegate to the New York convention called 
 to ratify the instrument, he took a prominent part in advocacy of its 
 adoption. Prom 1788 to 1798 he was one of the judges of the Supreme 
 Court of New York, becoming in the latter year its chief-justice, in 
 which office he served until 1801, when he was appointed chancellor to 
 succeed Livingston. He retired in 1814. While chancellor he took 
 part in the cause celebre of " the matter of Yates." One of the rules 
 of the Chancery Court required solicitors to bring on equity suits in 
 their own names, and not in the name of another solicitor. John Yates, 
 a prominent member of the Albany bar, but not a solicitor in chancery, 
 commenced, through a chancery solicitor, a suit in Lansing's court. 
 As soon as the chancellor discovered that Yates was not a member of 
 his bar he committed him to jail for contempt. Yates retained Thomas 
 Addis Emmet, who applied to Ambrose Spencer, one of the judges of 
 the Supreme Court, for a habeas corpus. This being granted, the 
 prisoner was set free. Lansing again committed him to jail, notwith- 
 standing the former release. Emmet applied to the Supreme Court 
 in banc for another habeas corpus, which was denied by a divided 
 court. Emmet took the case to the Court for the Correction of Errors, 
 and the Supreme Court was reversed and Yates was freed. Yates 
 
392 HISTORY OF THE BENCH ANT> BAR OF NEW YORK 
 
 then brought an action for damages against the chancellor, but in this 
 he was defeated, it being decided that a judge was not individually 
 liable for his judicial acts. After resigning the chancellorship Lansing 
 lived in retirement. On December 12, 1829, he was in New York City, 
 having come from his home in Albany, and left his hotel to post some 
 letters. He was never seen afterward. ' 
 
 ARNED, JOSEPH GAY EATON (born in Thompson, Con- 
 necticut, April 29, 1819 ; died in New York City, June 3> 
 1870), was graduated from Yale College in 1839, and for 
 eight years was a teacher and tutor. Then he studied for 
 the bar, and practiced for a time in New Haven. Removing to New 
 York in 1852 he assumed prominence in patent law. He became 
 interested in the manufacture of steam fire-engines, and himself largely 
 prepared the designs from which the first engine used in the metropolis 
 was built. He was government inspector of ironclads at the Brooklyn 
 navy-yard in the last years of the war. 
 
 ARREMORE, RICHARD LUDLOW (born near Astoria, 
 Long Island, September 6, 1830 ; died in New York City, 
 September 13, 1893), was descended in the paternal line from 
 an English family, and on his mother's side traced his ances- 
 try to the early Dutch settlers of New Netherland. He studied law in 
 the office of Betts & Robinson in New York, and upon being admitted 
 to the bar engaged in practice with Messrs. Scoles and Cooper, who 
 were prominent in the admiralty branches of the profession. Devoting 
 himself to the law of real property, he soon made a high reputation, 
 becoming counsel for the Dry-Dock Savings Institution and other 
 clients who made loans on real estate security. He was frequently 
 solicited to accept trusts as guardian and executor, but always declined. 
 For many years he was an active member of the board of education, 
 and for three years was its president. His firmness prevented that 
 body from coming under the control of the Tweed ring, and effectually 
 stopped a bold attempt to apply to the purchase of school supplies the 
 methods that obtained in the building of the county courthouse. He 
 was a member of the constitutional convention of 1867, taking a 
 prominent part in the debates, especially those concerning educational 
 questions. 
 
 In 1870, when the judicial force of the Court of Common Pleas was 
 increased, he was elected to that bench with Hamilton W. Robinson, 
 Joseph F. Daly and Charles H. Van Brunt. Upon the retirement of 
 Charles P. Daly he was chosen chief-justice of the court by his associates. 
 He sat in the Supreme Court by the appointment of the governor. ' 
 
 Judge Larremore obtained a recognized position as a very excellent 
 
 1 See p. Ill of this volume. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 398 
 
 nisi prius judge, and in equity causes, for the determination of which 
 he was specially adapted by his professional experience, he manifested 
 judicial abilities of an exceptional order. His opinions were usually 
 brief, and though reversals fall to the lot of every judge, he was 
 peculiarly fortunate in the appellate court. A good example of his 
 judicial methods may be found in his opinion in Dupre vs. Rein, 7 
 Abb. N. C, 256. That case involved an examination of a tripartite 
 agreement between husband and wife with the intervention of a trustee, 
 entered into after the separation of the wedded pair. Citing many 
 authorities, he stated the existing rules regulating the reciprocal duties 
 and liabilities of the parties, and the methods of enforcing them, with 
 great conciseness but with the keenest discrimination. The case 
 has frequently been acted and followed and has received the honor of 
 special mention of the Court of Appeals, an honor seldom falling to a 
 decision at special term. 1 
 
 f AWRENCE, WILLIAM BEACH (born in New York City, 
 October 23, 1800 ; died there, March 26, 1881), was descended 
 from an old and wealthy New York family, whose ancestor, 
 about the middle of the seventeenth century, received a 
 grant of land on Long Island. His father was a New York merchant. 
 The son was graduated from Columbia College in 1818, and admitted 
 to the bar in 1823. He became secretary of legation and charge 
 d'affaires at London in 1826, and later was in the diplomatic service at 
 Paris. Returning to New York, he became the law partner of Hamil- 
 ton Fish, lectured on political economy at Columbia College, was 
 eminent at the metropolitan bar, and took a leading part in the Erie 
 railway enterprise. He was prominent in the 
 New York Historical Society, being its vice-pre- 
 sident from 1836 to 1845. His legal, historical 
 and miscellaneous writings are numerous. 
 Among them may be mentioned : " Lectures on 
 Political Economy" (1832)$ "Discourses on 
 Political Economy" (1834), "History of the 
 Negotiations in Reference to the Eastern and 
 Northeastern Boundaries of the United States " 
 (1841), " The Law of Charitable Uses " (1845), an 
 
 Wz. 
 
 / 
 
 ^A^> 
 
 LAWRENCE ARMS. 
 
 edition of Wheaton's " Elements of International Law " (1855), " Com- 
 mentaire sur les Elements du droit international " (Leipsic, 1868-80), 
 "■Etude de droit international sur le mariage" (Ghent, 1870), "Disa- 
 bilities of American Women Married Abroad" (1871), "The Indirect 
 Claims of the United States under the Treaty of Washington of May 
 8, 1871, as Submitted to the Tribunal of Arbitration at Geneva" 
 
 • This biography is a reproduction, in part, of a Van Hoesen, read before the Association of the Bar of 
 memorial of Judge Larremore by Judge George M. the City of New York. 
 
394 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 (1872), " Belligerent and Sovereign Rights as Regards Neutrals during 
 the War of Secession" (1873), and "Administration of Equity Juris- 
 prudence " (1874). 
 
 In 1850 Mr. Lawrence removed his residence to Newport, Rhode 
 Island, and for the rest of his life he was a citizen of that state, serving 
 a term as lieutenant-governor (1850), and for a part of the time being 
 acting-governor. In 1873 he argued the important case of the Circas- 
 sian before the British and American international tribunal at 
 Washington, which resulted in the only reversal of a decision of the 
 Supreme Court that has ever been obtained. He has left a reputation 
 as one of the foremost American authorities on international law. 
 
 LEAVENWORTH, ELIAS WARNER (born in Canaan, New 
 York, December 20, 1803 ; died in Syracuse, New York, No- 
 vember 25, 1887), was graduated from Yale College in 1824, 
 and after studying under William C. Bryant was, in 1827, ad- 
 mitted to the bar. He continued in practice at Syracuse until 1850. He 
 filled the various offices of mayor of Syracuse (1849 and 1859), member 
 of the assembly (1850 and 1857),, secretary of state of New York (1854- 
 55), president of the board of quarantine commissioners (1860), regent 
 of the State University from 1860 and afterward chancellor of the board 
 of regents, trustee of the State Asylum for Idiots for more than twenty 
 years, member of congress (1875-77) and commissioner on the boundary 
 between New York and New Jersey and New York and Pennsylvania. 
 He compiled a genealogy of the Leavenworth family. 
 
 EVERIDGE, JOHN (born in New York City, September 15, 
 1792 ; died there, February 17, 1886), was, notwithstanding 
 his extreme age — he died in his ninety -fourth year — a prac- 
 ticing attorney until shortly before his death, and was re- 
 puted to be the oldest active member of the American bar. He was ad- 
 mitted in 1811, was a private in the war of 1812, was corporation counsel 
 in 1844-45, and was one of the organizers of the Saint Nicholas Club 
 and of the old Public School Society. 
 
 EWIS, MORGAN (born in New York City, October 16, 1754 ; 
 died there, April 7, 1844), was a son of Francis Lewis, a New 
 York merchant and signer of the declaration of independ- 
 ence. After graduating from Princeton College in 1773 he 
 began to prepare himself for the bar, but abandoned his studies to enlist 
 in the revolutionary army. He served through the war, being aide to 
 General Horatio Gates and quartermaster-general of the northern 
 army, and obtaining distinction for gallantry. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 395 
 
 Upon the return of peace he completed his professional education 
 and, entering upon practice, soon became eminent at the bar and 
 conspicuous in public life. He was 
 successively member of assembly, 
 judge of the Court of Common 
 Pleas, state attorney-general (1791), 
 chief -justice of the Supreme Court 
 of New York (1792) and governor 
 (1804). At the expiration of his 
 term as governor he retired to his 
 estate in Dutchess county. In 1812 
 he declined the office of secretary 
 of war, which had been tendered 
 him by President Madison. In the 
 same year he became quartermaster- 
 general of the armies of the United 
 States, and the next year he was pro- 
 moted to be major-general, in which 
 capacity he commanded on the Ni- 
 agara frontier and achieved import- 
 ant successes. " He remitted all ar- 
 rears of rents that were due from those of his own tenants in Delaware 
 county that had either gone or sent a son to the war, and by his good 
 management avoided on his own estates all anti-rent difficulties." He 
 was grand master of the freemasons and president of the Historical 
 Society and of the Order of the Cincinnati. 
 
 t-s^fc-rqrc&ri-^feurij. 
 
 'HOMMEDIEU, EZRA (born in Stronghold, Long Island, 
 August 30, 1734; died there, September 28, 1811), was de- 
 scended from Benjamin L'Hommedieu, who emigrated from 
 France after the revocation of the edict of Nantes. He was 
 a Yale graduate, a member of the New York bar, and incumbent of 
 various offices, being a delegate to the New York provincial congress 
 and one of the framers of the state constitution of 1777, a member of 
 the assembly, state senate and council of appointment, regent of the 
 State University and a federalist representative in congress. 
 
 INN, WILLIAM (born in New York City, August 31, 1790 ; 
 died in Ithaca, New York, January 14, 1867), was a success- 
 ful lawyer at Ithaca. He wrote the " Roorbach Papers " 
 (1844), given to the public as extracts from .. 
 
 the travels of Baron Roorbach— whence the political ///^rf- 
 Americanism, "roorbach," He published also a ^' 
 
 " Life of Thomas Jefferson " (1834) and a " Legal and Commercial Com- 
 monplace Book " (1850). 
 
396 
 
 HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 IVINGSTON, EDWARD (born in Clermont, Columbia coun- 
 ty, New York, May 26, 1764; died in Montgomery Place, 
 Dutchess county, New York, May 23, 1836), was a great- 
 grandson of Robert Livingston, 1 the founder of the family 
 in America, a son of Robert R. Livingston (q. v.), justice of the co- 
 lonial Supreme Court, and younger brother of Chancellor Robert 
 R. Livingston (q. v.). He lived at home in the Clermont manor, hav- 
 ing a clergyman as his instruc- 
 PjgdigSUi^, tor, until his twelfth year, when 
 
 j| §^ he was sent to Albany to school, 
 
 ^2L> but from there he was soon 
 
 taken to Kingston in the 
 County of Ulster and placed 
 under a tutor. While he was 
 
 Pi ID \J in attendance at school in 
 
 fer" i 'Jk Kingston the British burned 
 
 ^^^^Jf0^\ the town, and also burned Cler- 
 
 mont, the manor-house of Liv- 
 ingston's mother, his father 
 having died a while before. 
 The widow took all her chil- 
 dren whom she then had at 
 home, including Edward, to 
 Salisbury in Massachusetts, but 
 soon returned to Clermont, the 
 British having withdrawn, and 
 the manor-house was rebuilt. 
 In 1779 he entered the junior 
 class of Princeton. He gradu- 
 ated in 1781 at the age of sev- 
 On leaving college he began the study of law at Albany in 
 the office of John Lansing, afterward one of the chancellors of the state. 
 During this period he made the acquaintance of Aaron Burr. In 1783, 
 after the evacuation of New York City by the British, his mother 
 removed thither and Edward continued his studies there. In 1785 he 
 was licensed to practice as an attorney. While studying law he 
 attracted the attention of Lafayette, who was a frequent guest of his 
 
 Ti%^JZZ^??Z&f<fc& 
 
 enteen. 
 
 1 The American ancestor of the Livingston family, 
 Robert Livingston (born in Ancrum, Scotland, Decem- 
 ber 13, 1654 ; died in Albany, New York, April 80, 1725), 
 was a son of Reverend John Livingston, a non-con- 
 forming Scotch presbyterian divine, who after the act 
 of uniformity (1663) went to Rotterdam, Holland, dying 
 there in 1672. Robert Livingston arrived in Charles- 
 town, Massachusetts, in 1673, and from there removed 
 to Albany, where he became very prominent. Receiv- 
 ing in 1686 from Governor Dongan a large grant of land, 
 which in 1715 was'confirmed by royal charter, be erected 
 the manor and lordship of Livingston, " with the priv- 
 ilege of holding a court leet and a court baron, and . 
 
 with the right of advowson to all the churches within 
 its boundaries. This tract embraced large parts of what 
 are now the counties of Dutchess and Columbia, New 
 York, and is still known as Livingston manor, though 
 most of it has long since passed out of the hands 
 of the family."* Robert married the widow of Rev- 
 erend Nicholas Van Rensselaer, who was the daughter 
 of Philip Petersen Schuyler. Peter Van Brugh Living- 
 ston, a prominent merchant, and Philip Livingston, 
 signer of the declaration of independence, were his 
 grandsons. 
 
 * Appleton's " Cyclopaedia of American Biography." 
 
HISTORY OE THE BENCH AND BAE OF NEW YORK 39? 
 
 mother's and who probably gave him his first introduction to the 
 French civil law, of which he afterward became a master. In 1T88 he 
 married Mary McEvers, daughter of a New York City merchant. 
 
 In 1794 he was elected a member of the 4th congress of the United 
 States for the City of New York, and he was re-elected in 1796 and 
 1798. He acted with the republicans and against the federalists. In 
 1796 he and Andrew Jackson, who was a member of congress from 
 Tennessee, voted against an address that congress adopted praising 
 Washington's administration. As a member of that body, he par- 
 ticipated, in 1795, in the trial of Randall and Whitney by the house 
 for bribery, and the resolutions which he drew up touching their guilt 
 were adopted. He was the author of an act (1796) for the protection 
 of American seamen impressed into the service of foreign powers. He 
 took a memorable part in the congressional proceedings concerning 
 the " Jay treaty matter," which arose over an appropriation required 
 to carry into effect the treaty with Great Britain that John Jay had 
 negotiated in 1794. The debate was participated in by Livingston. 
 Madison, Giles, Sedgwick and Ames. Livingston offered a resolution 
 calling on the president (Washington) to lay before the house a copy 
 of the instructions to Jay, together with the correspondence and other 
 documents relative to the treaty. Washington had previously refused 
 to send the treaty to the house, claiming that in treaty affairs that 
 branch of the government had no jurisdiction. Livingston was the 
 principal advocate of the resolution, and he went into an elaborate 
 examination of the nature and objects of the treaty-making power. 
 He contended that the house possessed jurisdiction, and cited prece- 
 dents where its discretion in the matter of putting treaties into operation 
 had been recognized by the president. This is one of the great his- 
 toric debates of the American congress. The Livingston resolution 
 was carried, but Washington still refused to comply, and subsequently 
 another resolution was adopted defining the attitude of the house of 
 representatives in the premises. While a representative in congress 
 he opposed the alien and sedition laws in speeches of great force. In 
 the last congress in which he sat he was leader of the anti-federalist 
 forces, John Marshall being the federalist leader. The Jay treaty dis- 
 pute was again revived by a resolution censuring President Adams for 
 delivering up as a British subject a man who had murdered another 
 on board a British frigate, the surrender being in accordance with the 
 provisions of that treaty. Livingston contended that as the prisoner 
 claimed to be an American citizen, impressed into the British service, 
 he should have been given a judicial trial on this fact ; that it was not 
 ior the executive to decide. Marshall vindicated Adams' action in sur- 
 rendering the fugitive, and thus proceded a learned debate on the sub- 
 ject of what is a judicial and what au executive act. Livingston's 
 resolution was lost. In the course of his congressional career he 
 offered a resolution to have a committee appointed " to inquire and 
 
398 
 
 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 6 fEP03VELSj^ 
 
 report whether any and what alterations should be made in the 
 penal laws of the United States, by substituting milder punishments 
 for certain crimes, for which infamous and capital punishments are 
 now inflicted." The proposed committee was selected, but it never made 
 a report. In 1800 the tie electoral vote between Jefferson and Burr 
 occurred, and the matter was referred to the house. Livingston was 
 most active in support of Jefferson, being the latter's representative 
 and spokesman in the contest. It was owing to his influence that New 
 York's vote was given to Jefferson. 
 
 In 1801 he retired from congress, and President Jefferson ap- 
 pointed him district-attorney for the district of New York. In the 
 same year he became mayor of New York City, but he retained the 
 office of district-attorney. He subsequently issued a volume of reports 
 of decisions delivered in the mayor's court while he was mayor. Dur- 
 ing his mayoralty yellow fever visited the city, and he distinguished 
 himself by making provision for the relief of the afflicted and the 
 prevention of the spread of the disease. In 1803 
 he resigned both as mayor and district-attorney. 
 His assistant in the office of district-attorney had 
 embezzled government funds to the amount of 
 $45,000, and Mr. Livingston, being held respon- 
 sible, made himself penniless in trying to repair 
 the wrong. He confessed judgment in favor of 
 the United States for $100,000 and also conveyed 
 all his property to a trustee for sale for the pur- 
 pose of paying the debt. 
 
 Immediately after his resignation he sailed 
 for New Orleans to begin life anew in that ter- 
 ritory, whose purchase from Prance his brother 
 Robert had negotiated, as a representative of the 
 United States. Arriving in New Orleans in 
 1804 he at once began to practice, making himself familiar with the 
 details of Louisiana procedure. His business grew with astonishing 
 rapidity. Within a year he came into much prominence as an advo- 
 cate of the civil as contradistinguished from the common law practice. 
 He contended that a state could adopt what form of procedure it chose, 
 and that the federal constitution did not engraft the common law prac- 
 tice on any state. In this position he has been since sustained by the 
 Supreme Court of the United States. He was asked by the lawyers of 
 the city to prepare a practice code, which he did, and which the 
 Louisiana legislature adopted in 1805. The characteristic feature of 
 this code was the creation of a simple system of statement, each party 
 being required to state in intelligible language the cause of complaint 
 or the grounds of defence. Before he left New York his wife died, and 
 in 1805 he was married again to the widow of a Jamaica Frenchman. 
 In 1806 Governor Wilkinson of Upper Louisiana charged Mr, Living- 
 
 LmSOSTOH AKMS. 
 
HISTORr OF THE BENCH AJND UAU OP NEW YORK 399 
 
 ston with being an accessory of Aaron Burr in his treasonable designs 
 on the western territories. This gave rise to an exciting scene in a 
 New Orleans court-room, Livingston denouncing Wilkinson in the most 
 scathing terms. Nothing further came of this matter, and it is com- 
 monly agreed that Livingston knew nothing of Burr's schemes. In 
 1807 occurred the celebrated controversy between President Jefferson 
 and Livingston. Livingston had bought a piece of land jutting into 
 the Mississippi river, called the " Batture Ste. Marie." He proceeded to 
 enclose it. The land had long been used by the public as a place for 
 boats, it being covered with water when the tide rose. President Jeffer- 
 son took the position that the title to the Batture was in the United 
 States, and the commanding officer at New Orleans was ordered to use 
 military force to eject Livingston. Being dispossessed he began suit in 
 the Virginia District Court against Jefferson for damages, but was de- 
 feated in this action, the court (Marshall being chief-justice) deciding 
 that being an action of trespass it was local and had to be brought 
 where the land lay. The " Batture controversy " was a leading topic 
 of political discussion in its day, and both Jefferson and Livingston 
 wrote on the subject long after Jefferson ceased to be president. It 
 may be of interest to note that Chancellor Kent examined Livingston's 
 claim to the Batture property and arrived at the conclusion that he 
 had a title, and that Jefferson's act in excluding him was illegal. In 
 1814 he took a very active part in the defence of New Orleans against 
 the British. In the battle of January 8, 1815, he was probably the 
 closest adviser of Andrew Jackson, the American commander. All 
 of Jackson's military orders were translated into French and Spanish 
 by him, and thus delivered to those troops. This laid the foundation 
 for a friendship between Jackson and Livingston that was maintained 
 ever afterward. 
 
 In 1820 he accepted a seat in the lower house of the Louisiana 
 legislature. He was appointed by that body, with Mocan-Lislet and 
 Derbigny, as a commissioner to draft a civil substantive and adjective 
 code. Mr. Livingston was the most active of the commissioners, and 
 most of the civil code reported to the legislature was his work. It 
 was adopted in 1825. In February, 1821, he was designated by the legis- 
 lature to revise the entire system of criminal law of the state, and 
 under the instructions given him he framed a statute, reported in 
 1825, which was styled " A System of Penal Law," and was divided 
 into a code of crimes and punishments, a code of procedure, a code of 
 evidence, a code of reform and prison discipline, and a book of defini- 
 tions. It is upon the penal code that Livingston's reputation as a 
 codifier chiefly rests. This code has been commended by all the lead- 
 ing European codifiers, and notably by Jeremy Bentham. It was re- 
 printed in England and France. It brought fame to its author, and 
 letters of approval poured in from prominent men all over the world. 
 Its philanthropic provisions have noticeably influenced the penal legis- 
 
400 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 lation of several countries. It was adopted by the Louisiana legisla- 
 ture, in the greater part, in 1825. 
 
 From 1823 to 1829 Mr. Livingston represented the New Orleans 
 district in congress, Webster, Clay and Randolph being among his 
 associates in the house. He became conspicuous at once, and took a 
 leading part in the debates. His old debt to the government was paid 
 at this period by the transfer of one of the " Batture " lots to it. In 
 the presidential contest of 1824, when Crawford, Jackson, Clay and 
 Adams were candidates and neither had an electoral majority, Living- 
 ston most actively favored Jackson and voted for him when the elec- 
 tion was thrown into the house. Upon the expiration Of his last term 
 he was chosen United States senator for Louisiana, and he entered 
 upon his new duties the same day that Jackson first became president. 
 He was tendered the French mission, but declined it. The most im- 
 portant episode of his senatorial service was his speech on Foot's 
 resolution, violently attacking Daniel Webster, who had charged 
 him with having opposed Washington's administration. He reviewed 
 his own and Andrew Jackson's conduct, when, as members of congress, 
 they had voted against the fulsome address to Washington. While 
 in the senate Livingston carried on a very frequent correspondence 
 with Jeremy Bentham, exchanging views on codification subjects. He 
 took occasion as senator to praise the services his brother had rendered 
 in the purchase of Louisiana, and spoke against granting a pension to 
 James Monroe for his part in negotiating the Louisiana purchase. He 
 introduced a bill contemplating a penal code for the federal govern- 
 ment, and submitted a draft of such code, but it never became law. 
 
 In 1831 he left the senate to become secretary of state to Andrew 
 Jackson. He served for two years, and then was appointed minister 
 to France. As secretary he drafted the celebrated "Nullification Pro- 
 clamation." He was sent to France to accomplish two objects — first, 
 to procure the payment of a large indemnity sum which had been 
 secured by treaty, of which a part was then overdue from the French 
 government, and second to negotiate a new treaty readjusting the 
 commercial relations of the two countries. Although his mission 
 failed, he obtained a great popularity at home by the spirited manner 
 in which he demanded from the French king his passports. 
 
 After Livingston's return to America he went to live at Mont- 
 gomery Place, the country seat of his sister, Mrs. Montgomery, in 
 Dutchess county, New York, which she on her death had willed him. 
 Here he died. His remains were laid beside those of his mother in 
 the vault of the family at Clermont, the place of his birth. A plain 
 tablet, placed by his wife and daughter in the Dutch Reformed church 
 at the village of Rhinebeck, bears a simple inscription, describing him 
 as "A man for talents equalled by few, for virtues surpassed by none " 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 401 
 
 IVINGSTON, HENRY BROCKHOLST (born in New York 
 City, November 26, 1757; died in Washington, District of 
 Columbia, March 19, 1823), a son of Governor William 
 Livingston of New Jersey (q. v.), after graduating from 
 Princeton in 1774, devoted himself heartily to the patriot cause, and 
 during the Revolution served first as aide to General Schuyler and 
 then as aide to General Arthur Sinclair (being present at Burgoyne's 
 surrender), and subsequently was again attached to Schuyler's com- 
 mand with the rank of lieutenant-colonel. From 1779 to 1782 he was 
 private secretary to John Jay, his brother-in-law, at the embassy in 
 Madrid. Returning to America, his vessel was taken by the British, 
 
 and for a time he was a prisoner of war ^^ 
 
 in New York. In 1783 he was admitted /• J? . V^ T N 
 
 to the bar, having studied under Peter ps. t^-t^-to^t? StirrO 
 Yates at Albany. Upon engaging in " 
 
 practice in the City of New York he dropped the name of Henry, 
 and in the annals of the bar he is known as Brockholst Livingston. 
 He ranked with Hamilton, Burr, Egbert Benson, and the other famed 
 lawyers of that time, being recognized as "one of the most accom- 
 plished scholars, able advocates and fluent speakers of his time in the 
 city, but violent in his political feelings and conduct." He had a 
 very distinguished judicial career, serving from 1802 to 1807 on the 
 State Supreme bench, and in the latter year becoming an associate- 
 justice of the Supreme Court of the Lnited States, as successor to 
 William Patterson. He was a vice-president of the New York His- 
 torical Society, a trustee of the Society Library, and one of the 
 original incorporators of the New York City public-school system. 
 He wrote political articles for the press under the name of " Decius." 
 
 IVINGSTON, HENRY WALTER (born in Livingston man- 
 or, Linlithgow, New York, in 1768 ; died there, December 22, 
 1810), a son of Judge Walter Livingston -(q. v.), was a Yale 
 graduate (class of 1786) and entered upon professional prac- 
 tice in the City of' New York after his admission to the bar. He 
 married Mary Allen Penn ( " Lady Mary "), granddaughter of the Penn- 
 sylvania chief -justice. From 1792 to 1794 he was private secretary to 
 Gouverneur Morris, minister plenipotentiary at Paris. Afterward he 
 was judge of the Columbia county Court of Common Pleas, and repre- 
 sentative in the federal congress (1803-7). 
 
 IVINGSTON, ROBERT R., 1st (born in New York City in 
 August, 1718 ; died in Clermont, New York, December 9, 
 1775), was a grandson of Robert Livingston, founder of the 
 family in America, and son of Robert Livingston, a respect- 
 able colonial lawyer. He practiced with much success at the bar for a 
 
402 
 
 HISTOEY OF THE BENCH AND BAR OF NEW YORK 
 
 number of years, was appointed judge of admiralty in 1760, and in 1763 
 became fourth justice of the provincial Supreme Court, serving in this 
 position until his death. He held other important offices, being a 
 member of the provincial congress from Dutchess county (1759-68), a 
 representative in the Stamp Act congress of 1765 (in which he op- 
 
 posed the compulsory _ 
 a commissioner on the 
 
 acceptance of stamps), 
 New York and Massa- 
 chusetts boundary (1767 
 and 1773), and a mem- 
 ber of the committee of 
 1775 which was elected 
 to control in all general 
 affairs. He had the 
 reputation of being the 
 wealthiest landholder 
 in New York. His wife 
 was Margaret Beek- 
 man, daughter of Colo- 
 nel Henry Beekman, 
 and General Bichard 
 Montgomery married 
 his daughter Janet. 
 Justice R. B. Living- 
 ston was somewhat conservative on the question of American inde- 
 pendence. He stood for freedom rather than complete independence, 
 favoring the continuance of the colonial form of government, with the 
 proviso that each colonist should be entitled to all the rights of English- 
 men. This was the position taken in his opinion in the case of Cun- 
 ningham's appeal. He did much on the bench to break up the prac- 
 tice of granting general warrants to customs officers to search for 
 dutiable goods. He was one of the influential " associators-" against 
 aggressions of the king. 
 
 BEEKMAN MANSION. 
 
 IVINGSTON, BOBEBT B., 2d (born in New York City, 
 
 November 27, 1746 ; died in Clermont, New York, February 
 26, 1813), the first chancellor of the state, was a son of the 
 preceeding and elder brother of Edward Livingston. He 
 went to King's, now Columbia, College, where he graduated in 1765, and 
 then read law and was admitted to the bar in 1773. He at first began 
 practice in New York City in partnership with John Jay. Afterward 
 he was appointed recorder of the city, but was soon displaced by loyal- 
 ist influence. In 1775 he was elected to the provincial assembly, and he 
 was subsequently sent as a delegate to congress. He was a member (in 
 1776) of the committee of congress which drew up the declaration of 
 independence, but being summoned to the New York provincial 
 congress his name did not appear among its signers. 
 
HISTOKY OF THE BENCH AND BAR OF NEW YOKE 403 
 
 He was prominent in the convention at Kingston (1776-77) which 
 framed the first constitution of New York, was elected chancellor and 
 held the office until 1801. During part of this time (1779-81) he 
 was also a delegate to the continental congress. From 1781 to 1783 he 
 was secretary of foreign affairs,- and in 1788 he was chairman of the New 
 York convention that ratified the federal constitution. When Washing- 
 ton was first inaugurated president Chancellor Livingston administered 
 the oath to him. 
 
 In 1801 he was appointed minister to France by Jefferson, resigning 
 his chancellorship. In 1803 he effected, in behalf of his government, 
 the purchase from France of the vast territory then known as Louisiana, 
 comprising the entire country between the Mis- 
 
 sissippi and the Rocky mountains. This was diy 'w A //t71 / 'j /^\ 
 the most important transfer by purchase ever /zv'V/*r / *'Z // ' / / / > 
 made. Napoleon obtained 10,000,000 francs — k ' 
 
 more than he had been instructed to accept, for the cession, — and Jeffer- 
 son and Livingston were at the time bitterly censured for rashly con- 
 cluding so useless a bargain. 
 
 While in Paris he met Robert Fulton and became interested in his 
 scheme of steam navigation. In 1809 he and Fulton built the Clermont 
 steamer, which was launched on the Hudson river. Previously he had 
 secured from the state legislature a monopoly of steam navigation on 
 the waters of the state, but this grant, after being sustained by Chan- 
 cellor Kent, was declared invalid by the Supreme Court of the United 
 States in the case of Gibbons vs. Ogden. During the concluding por- 
 tion of his life he was interested in agricultural pursuits and wrote sev- 
 eral tracts on those subjects. He was the first to introduce the merino 
 sheep into middle New York. He was one of the founders of the 
 American Academy of Fine Arts in New York. 
 
 His opinions while a chancellor were not reported, and he has left 
 nothing that would enable us to gauge him as a jurist. Jefferson 
 wrote of him : " Robert R. Livingston is in every sense of the word a 
 wise, good and great man, one of the ablest of American lawyers and 
 statesmen." 
 
 IVINGSTON, WALTER (born in 1740 ; died in New York 
 City, May 14, 1797), a grandson of Philip Livingston, signer 
 of the declaration of independence and a grand-nephew of 
 Governor William Livingston of New Jersey (q. v.), was edu- 
 cated for the bar, and, after serving in the New York provincial con- 
 ■ gresses, was chosen one of the original judges for Albany. He married 
 Cornelia Schuyler, step-daughter of Doctor John Cochrane, and was 
 prominent in public life during the provisional government, being a 
 member of the continental congress in 1784 and 1785, and one of the 
 first commissioners of the treasury (1785). 
 
404 HISTOEY OF THE BENCH AND BAK OE NEW YORK 
 
 IV1NGSTON, WILLIAM (born in Albany, New York, Novem- 
 ber 30, 1723 ; died in Elizabethtown, New Jersey, Jnly 25, 
 1790), was a son of Philip Livingston, second lord of the 
 manor, and a brother of Philip Livingston, signer of the 
 declaration of independence. As a yonth he was a favorite of his grand- 
 mother, Sarah Yan Brugh. Graduating with the first honors from 
 Yale College, at the age of eighteen, he devoted himself to the study of 
 the law, first under James Alexander and then under William Smith, 
 being admitted to the bar in 1748. He advanced to the front of the pro- 
 fession and became known as " the presbyterian lawyer." He continued 
 to practice in this state for twelve years, during three of which he served 
 in the legislature as a representative from the manor. 
 
 He removed in 1760 to Elizabethtown, New Jersey, building a resi- 
 dence which became historically famous as " Liberty Hall." There John 
 Jay came in 1774 to wed Mr. Livingston's daughter, Sarah Van Brugh, 
 and in 1789 Mrs. Washington, while on her way to meet her husband 
 after his inauguration, was his guest. William Livingston was one of 
 the most eminent revolutionary patriots and statesmen of New Jersey. 
 He represented the province in the 1st, 2d and 3d continental con- 
 gresses, but was prevented from signing the declaration of independ- 
 ence by his assumption, in June, 1776, of the position of brigadier-gen- 
 eral and commander-in-chief of the New Jersey militia, to resist an ex- 
 pected British invasion. He was the first governor of the State of New 
 Jersey, elected in August, 1776. As governor he took a decided attitude 
 in opposition to slavery, recommending its abolition in 1777, and liber- 
 ating his own slaves as a matter of principle and example. He also ob- 
 tained the passage of the New Jersey act of 1786, prohibiting slave 
 importation. He was a member of the federal constitutional convention. 
 He declined important offices under the provisional government of the 
 states. 
 
 He was conspicuously connected with leading learned societies, and 
 possessed noteworthy intellectual and literary abilities. He opposed 
 the creation of an American episcopate, and upon being chosen a trus- 
 tee of King's (Columbia) College in 1751 refused to serve because of 
 the requirement that the president of that institution should be a divine 
 of the Church of England. He was for a time president of the celebrated 
 Moot club of lawyers, and he was a collaborator with William Smith 
 in the preparation of " A Digest of the Laws of New York, 1691-1762." 
 His " Life and Letters " was published in 1833 by Theodore Sedgwick, 
 Junior. 
 
 OOMIS, ARPHAXAD (born in Winchester, Connecticut, 
 April 9, 1798 ; died in Little Falls, New York, September 15, 
 1885), removed with his parents at an early age to Herkimer 
 county, New York. He worked on a farm until fourteen, 
 when he became a district school teacher. He studied law at Water- 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 40f) 
 
 town and Sackett's Harbor, and after his admission to the bar began 
 practice at Sackett's Harbor. In 1827 he located at Little Falls. 
 Between 1827 and 1837 he held the offices of county judge and sur- 
 rogate of Herkimer county, and from 1835 to 1840 was "first judge " of 
 the same county. In 1837 he was the successful democratic candidate 
 for congress, and served his term while remaining first judge. He was 
 elected to the assembly in 1841, and was a member of the constitutional 
 convention of 1846. 
 
 But the most notable service of Judge Loomis was in connection 
 with the code revision of 1847. In 1842 he had been chairman of the 
 assembly judiciary committee, and in that capacity had prepared a bill 
 designed "to improve the administration of justice." He became 
 known as an advocate of legal reformative measures, and upon the 
 selection of the commission to revise the code of practice, in 1847 he 
 was named as one of the commissioners. Nicholas Hill and David 
 Graham were originally named with him ; Hill soon resigned, however, 
 and David Dudley Field was appointed in his place. The code of 
 procedure recommended by the commission, as thus constituted, was 
 enacted by the legislature, going into effect in 1848. 
 
 Judge Loomis displayed unusual abilities as a public speaker. He 
 wrote much on political subjects, and was the author of a " Historic 
 Sketch of the New York System of Law Reform " (Little Falls, New 
 York, 1879). 
 
 JOED, DANIEL (born in Stonington, Connecticut, September 
 2, 1795 ; died in New York City, March 4, 1868), is unfortu- 
 nate, so far as fame goes, because of the strictly professional 
 character of his pre-eminence. He closely adhered to that 
 tradition of the New York bar that confines the lawyer to his profes- 
 sion and excludes him from the easier honors of the politician which, 
 although frequently far from being an indication of merit or of the 
 possession of abilities that have been a blessing to the community 
 instead of a bane, yet seem to be the only evidences of legal talent which 
 the American public recognize and which suffice to perpetuate the 
 memory of a great lawyer. The brevity of treatment that the lack 
 of such details necessitates, in a mere outline of the points of historic 
 interest in his public career, may very readily convey a false impression 
 in such a case as that of Daniel Lord. To correct this it maybe briefly 
 stated that he rose to the highest professional standing, and, among the 
 brilliant lawyers of the New York bar a generation ago, deserves to be 
 named with four or five leaders, including Charles O'Conor, James T. 
 Brady, and William Curtis Noyes. 
 
 Graduated from Yale College in 1814, he studied law with George 
 Griffin of New York City, attended the law school at Litchfield, Con- 
 necticut, and was admitted to the New York bar in 1817. He began 
 
406 HISTORY OF THE BENCH ANT) BAR OF NEW YORK 
 
 practice in the City of New York, where he always remained, achiev- 
 ing such distinction that it could be said of him that " for forty years 
 previous to his death there were few great civil cases before the United 
 States or New York state courts in which he was not retained." 
 
 He distinguished himself in the United States Supreme Court in 
 the case of the prize ship, Hiawatha, involving the questions of block- 
 ade and prize, was counsel in the famous cases growing out of the great 
 fire in New York City in 1836 and the cases arising out of the notable 
 panic of 1837, and also argued the historic litigations of the Methodist 
 and Dutch Reformed churches, the insurance cases involving the point 
 of general average, the Mason and Phelps will contest and the will 
 case connected with the establishment of the Leake and Watts Orphan 
 House. 
 
 Throughout his long career Mr. Lord persistently refused the many 
 public offices which his high professional rank brought easily within 
 his grasp. 
 
 OKD, GEORGE DE FOREST (born in New York City, Nov- 
 ember 21, 1833 ; died there, after a brief illness, March 3, 
 1892), was the younger son of the preceding and of his wife, 
 Susan, daughter of Lockwood de Forest, of New York. His 
 grandfather, Doctor Daniel Lord, was a well-known physician of this 
 city in the early part of the present century. Mr. Lord pursued his 
 preparatory studies partly in New York and partly in Fairfield, Con- 
 necticut, where his parents spent their summers. In 1851 he entered 
 Yale College and was graduated with high honors in the now famous 
 class of 1854, delivering the Latin salutatory at commencement. After 
 a year spent in foreign travel, he entered the Harward Law School, com- 
 pleted the course of study, and was admitted to the bar in New York 
 City in 1859, the same year becoming a partner in the firm of Lord, 
 Day & Lord, composed of his father, his brother, Daniel D. Lord, and 
 his brother-in-law, Henry Day. Of this firm he continued to be a 
 member to the time of his death. 
 
 Upon the outbreak of the civil war, although deeply engrossed in 
 the practice of his profession, Mr. Lord was instrumental in the forma- 
 tion of the 22d regiment of the national guard, became 1st lieutenant of 
 Company G, and was with the regiment during its service in the field. 
 
 While he was never brought before the public in sensational cases, 
 the respect and esteem with which he was universally regarded, not 
 only by the members of the bar but by all who knew him, were clearly 
 apparent in the deep feeling shown on the occasion of his death. Few 
 men so enjoyed the profound respect and confidence of all with whom 
 he had any dealings. While he never held or sought public office, 
 nor was ever prominently connected with great public enterprises, he 
 was an accomplished lawyer of the highest standing in his profession. 
 He died in the zenith of his professional career. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 407 
 
 JOTT, JOHN A. (born in 1825 ; died in Flatbush, Long Island, 
 July 20, 1878), was graduated from Union College in 1823, 
 and, after studying law and being admitted to the bar, began 
 practice in the City of Brooklyn. He was active both as a leg- 
 islator and upon the bench. He was county judge of Kings county be- 
 tween 1888 and 1842 ; in, 1841 was a member of the assembly, and from 
 1842 to 1846 a member of the state senate ; sat upon the state Supreme 
 Court bench between 1857 and 1 865 ; was in 1869 appointed to fill a short 
 term as judge of the Court of Appeals ; between 1870 and 1875 served 
 upon the commission of appeals, and in 1875 was one of the commis- 
 sioners appointed to formulate a measure for the uniform government 
 of all the cities of the State of New York. 
 
 His opinions will be found in the reports of the various courts of 
 which he was a justice. In his later years he was engaged in business 
 enterprises, at the time of his death being president of the Flatbush 
 & Coney Island railroad. 
 
 fOWREY, GROSVENOR P. (born in North Egremont, Mas- 
 sachusetts, September 25, 1831 ; died in New York City, April 
 21, 1893), was the son of William Lowrey, a native of Clave- 
 rack, Columbia county, who was of Dutch descent, and of 
 Olive Rouse, of Egremont. He was graduated from the law depart- 
 ment of Lafayette College, Easton, Pennsylvania, and was admitted to 
 the bar in Easton in 1854. Locating first in the west, he returned in 
 1857 to the east, settling in New York City, where he diligently prac- 
 ticed his profession. During the greater part of his practice he was a 
 member of the firm of Porter, Lowrey, Soren & Stone, the senior mem- 
 ber being the late John K. Porter. 
 
 Mr. Lowrey was for fifteen years general counsel of the Western 
 Union Telegraph Company (from its organization until 1882) and at 
 different times was counsel for the Metropolitan Railway Company, 
 Wells, Fargo & Company, the North American Steamship Company, 
 the United States Express Company, the Baltimore & Ohio Telegraph 
 Company, the Singer Manufacturing Company, the Union Ferry Com- 
 pany, the Knickerbocker Trust Company, and other important corpo- 
 rations. He died universally esteemed, and recognized as one of the 
 leading members of the bar. 
 
 UDLOW, GEORGE DUNCAN, was the last of the royal 
 Supreme Court justices of New York. He was originally 
 apprenticed to an apothecary, but disliking that pursuit, he 
 studied law. Though an assiduous student, his friends gen- 
 erally predicted his failure, as he had a serious impediment in his 
 speech, and were very much surprised at seeing him, when he appeared 
 in his first cause, acquit himself with an ease and fluency altogether 
 
408 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 unexpected. In commencing practice he gave his attention exclusively 
 to commercial matters, and acquired so much proficiency that he was 
 constantly employed, either as an arbitrator in deciding mercantile 
 disputes or in the adjustment and settlement of complicated mercan- 
 tile transactions. This drew him into commercial pursuits and specu- 
 lations, and having, by honest industry and great assiduity, acquired, 
 at a comparatively early age, an ample fortune, he retired to a hand- 
 some estate which he had purchased upon Long Island. Shortly after 
 his retirement he was appointed judge of the Court of Common Pleas, 
 in which he gave so much satisfaction that in 1769 he was made a 
 puisne judge of the Supreme Court. Though he labored under the 
 disadvantage of deafness, in addition to the impediment in his speech, 
 he was, nevertheless, an excellent judge, a man of great integrity, of 
 extensive information, and in private life a most agreeable and enter- 
 taining companion. 
 
 At the breaking out of,the Revolution, he, with Chief-Justice 
 Horsmanden, Justice Thomas Jones, and Jauncey, master of the rolls, 
 adhered to the cause of the crown, while Justice Robert R. Livingston 
 joined the revolutionary party. The royalists retained possession of 
 New York, Long Island, and a part of Westchester, and within these 
 limits the judges who had adhered to the royal cause continued to 
 exercise jurisdiction. Justices Jones and Ludlow retired to their 
 farms on Long Island, but Horsmanden remained in the City of New 
 York, and continued to exercise his functions until his death, in 1778, 
 when the sole administration of judicial affairs was entrusted to Jus- 
 tice Ludlow. Two years after, in 1780, Ludlow, in addition to his 
 powers as justice of the Supreme Court, was created master of the 
 rolls, with power to " hear and determine controversies until civil gov- 
 ernment should be restored." He also acted as judge in admiralty, and 
 was appointed superintendent of police for Long Island. In the same 
 , year, 1780, Robertson, the last of the royal governors, issued a concili- 
 atory proclamation, announcing that he had brought out a royal 
 appointment for supplying the place of chief-justice ; and that as soon 
 as the public exigencies would permit, he would give an order for 
 opening the courts of judicature, and convene the assembly. But his 
 proclamation produced no effect, and he did nothing under it until the 
 following year, when he held a court of chancery, in person, about once 
 every month, from the 24th of January, 1781, until the 9th of June, 
 1783. But little can now be ascertained respecting judicial proceedings 
 in this part of the state during this period, as the loyalists carried off 
 the records relating to it, which had been kept in the City of New York. 
 It is merely known that Justice Ludlow continued to act as the prin- 
 cipal judge until the close of the war, when he went to New Brunswick, 
 and became chief -justice of that province." 
 
 i This sketch is reproduced from Judge Daly's " Historical Sketch of the Judicial Tribunals of New York," 
 pp. 54-55. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 409 
 
 cCOUN, WILLIAM T. (born in Oyster Bay, Long Island, in 
 1786 ; died there, Jnly 22, 1878), was one of the prominent 
 men of the New York bar during the first half of the nine- 
 teenth century. When he located in the city and made his 
 residence in Warren street, that section Was a suburb. He became 
 prominent in his profession, and was sought repeatedly for office until 
 the creation in May, 1831, of the office of vice-chancellor of the 1st cir- 
 cuit, of which he became the first incumbent, and in which he con- 
 tinued until the Court of Chancery was abolished by the constitution 
 of 1846. He was elected justice of the Supreme Court in the 2d dis- 
 trict in 1847, and served a full term, after which he lived a retired life 
 in the place of his birth. He was for a time counsel for the Chemical 
 bank. As a judge he was recognized as exceptionally patient and 
 painstaking in his work. He was one of the founders of the Law 
 Institute Library. 
 
 cCUE, ALEXANDER (born in Matamoras, Mexico, in 1827 ; 
 died in Brooklyn, New York, April 2, 1889), spent his first 
 seven years in the place of his birth. In 1834 his parents 
 removed to Brooklyn, New York, where they formerly had 
 resided. He entered Columbia College, was graduated from that 
 institution in 1846, and went to Europe to complete his studies. Re- 
 turning to Brooklyn he studied law, began practice, and soon after 
 was appointed assistant-district-attorney of Brooklyn. Active in 
 democratic politics, he ran in 1856 for district-attorney of Kings 
 county, but was defeated. His practice became important and his 
 ability recognized. Two years later he was appointed corporation 
 counsel, and he served three terms. In 1870 he was elected a judge of 
 the City Court of Brooklyn for a term of fourteen years. In 1883, 
 upon the retirement of Judge Wilson, he became chief-judge, serving 
 the remainder of his term in that capacity. His decisions were pre- 
 pared with great care and seldom overruled. One of them, in the 
 famous Beecher-Tilton case, which had been overruled by the general 
 term, was confirmed by the Court of Appeals. 
 
 In 1885 he was appointed by President Cleveland solicitor of the 
 treasury. He remained in Washington two years, after which he was 
 named to succeed Assistant- Treasurer Charles J. Canda in New York 
 City. He held this office at the time of his death. 
 
 |*l||cKEON, JOHN (born in Albany, New York, in 1808 ; died in 
 WJm New York City, November 22, 1883), was educated at 
 *mW : . Columbia College, being graduated in 1825, and after a course 
 •^^ of legal study and his admission to the bar began practice 
 in New York City. He was active in politics, and acquired his reputa- 
 tion as a lawyer chiefly as a vigorous public prosecutor, holding office 
 
410 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 of this character during a large part of his professional career. He 
 was a member of .the assembly from 1832 to 1834, a member of congress 
 from 1835 to 1837, and again from 1841 to 1843, and in 1846 became 
 district-attorney of the County of New York by appointment. The 
 office becoming elective the following year, he was the successful candi- 
 date. He was noted for his able and merciless prosecution of guilty 
 offenders, and distinguished himself in many sensational cases. One 
 of the most remarkable of these was the case of the notorious Madame 
 Restell, who had for many years maintained a fashionable abortion 
 establishment on Fifth avenue. 
 
 Subsequently to his term of three years as district-attorney of the 
 county Mr. McKeon succeeded Charles O'Conor as United States 
 attorney for the southern district of New York, filling out the un- 
 expired term of the latter. After returning to private practice in 1858, 
 he was retained to conduct many notable prosecutions. These included 
 the trial of the persons charged with attempting to recruit soldiers 
 for the British service in the Crimean war, the prosecution of Captain 
 Westervelt, of the ship Nightingale, for carrying on the slave-trade, and 
 the case of the filibusters aboard the captured ship Northern Light. 
 Two years before his death, in 1881, Mr. McKeon was again elected to 
 the office of district-attorney of the County of New York. 
 
 l^plAlN", ALBON PLATT (born in Constable, Franklin county, New 
 Wfflk York, January 20, 1811 ; died in New York City, March 30, 
 w^ 1891), was the son of Doctor Albon Man and Maria Piatt, and 
 '"' ' :? ^ descended from interesting ancestry.' After his father's death 
 in 1820 the family removed to Plattsburg. At sixteen years of age Mr. 
 Man began the study of law at Covington, New York, with his brother-in- 
 law, Judge Parkhurst, subsequently entering the office of Judge William 
 Kent, of New York City. During this period he made a trip to the 
 Mediterranean in a sailing vessel. He was admitted to the bar at 
 Utica in August, 1832, and began practice in New York City in 
 partnership with Stephen C. Williams — an association which continued 
 until 1837, when he became a partner of Walter Edwards. On May 
 20, 1857, a new partnership was formed with John E. Parsons, and it 
 
 1 Reverend Samuel Man, a graduate from Harvard father, Zephaniah Piatt, was also a soldier in the 
 
 College in 1665, was his ancestor. His grandfather, Revolution, and at one time a prisoner in the old hulk, 
 
 Doctor Ebenezer Man, was a surgeon in the continental Jersey. The founder of the family in this country, 
 
 army during the Revolution. His father, also a phy- Richard Piatt, was one of the original settlers of Mil- 
 
 sician, was horn in Kent, Connecticut, in 1770, and ford, Connecticut. Captain Nathaniel Piatt, with three 
 
 settled in Franklin county, New York, in March, 1803, brothers, founded Plattsburg in 1784. One of these 
 
 where he practiced medicine, engaged in the lumber brothers, Zephaniah Piatt (q. v.), was a member of two 
 
 business with his brother, General Alric Man, and held revolutionary congresses, the New York constitutional 
 
 the office of " first judge " of the county for several convention of 1776, the committee of safety in 1777, and 
 
 years. Doctor Man's sister was the wife of Hugh was state senator and first judge of Dutchess county. 
 
 McCulloch, secretary of the treasury. Mr. Man's His son was Judge Jonas Piatt (q. v.). Mr. Man's 
 
 mother was the daaghter of Captain Nathaniel Piatt, a grandmother, Phoebe Smith, was of the old family of 
 
 revolutionary soltjier, who participated in the campaigns that name of Smithtown, Long Island, 
 on Long Island and in Westchester county. Her grand- 
 
HISTORY OF THE BENCH AND BAR OP NEW YOKK 411 
 
 continued without interruption until May 1, 1 884, the firm name of Man 
 & Parsons being, with two exceptions, " the oldest unchanged partner- 
 ship name in the profession in New York." 
 
 Many of Mr. Man's most interesting cases in later years were in 
 connection with attempts to establish railways on Broadway, New 
 York City. As counsel of the property owners he appeared before a 
 Supreme Court commission in successful opposition to the petition of 
 the Broadway Underground Connecting Road for the right to tunnel 
 Broadway. Upon the reorganization of the corporation as the Arcade 
 Railway Company, with the revised scheme of an arcade railway on 
 Broadway, he brought suits to restrain construction, and in 1889 ob- 
 tained a decision in the Court of Appeals declaring the charter of the 
 company invalid. 
 
 Mr. Man was one' of the active founders of the Bar Association of 
 New York, a member of its executive committee and the first treasurer. 
 He was subsequently vice-president, and was concerned in many of its 
 important reformatory proceedings. He was a republican, a member 
 of the Union League Club of New York City, and of the Madison 
 square church. His family is remarkable for its number of lawyers. 
 Of the five children by his first wife, Mary L. Brower, the sons, 
 William and Frederick H, are well-known lawyers of New York ; 
 while of the five children by his second wife, a daughter of Alric 
 Hubbell, of Utica, the three sons, Henry, Alric and Edward, are lawyers. 
 
 ARCY, WILLIAM LEARNED (born in Southbridge, Massa- 
 chusetts, December 12, 1786 ; died in Ballston Spa, New 
 York, July 4, 1857), was an able lawyer and jurist, although his 
 political career and services to the state and nation as United 
 States senator, governor of New York and cabinet officer under Polk 
 and Pierce overshadow his legal character. 
 
 He was graduated from Brown University in 1808, studied law at 
 Troy, New York, and began the practice of law in that city. Upon 
 the outbreak of the war of 1812 a company of infantry of which he was 
 lieutenant offered itself to the governor of the state and was sent to the 
 Canadian frontier, where it obtained the honor of the first capture of a 
 British flag in the war. At the expiration of his term of enlistment he 
 resumed his law practice. He was the political foe of De Witt Clinton, 
 which caused his removal from the office of recorder of Troy, to which 
 he had been appointed in 1816. Becoming editor of the Troy Budget, 
 he made it an influential democratic journal, affiliated with the Van 
 Buren faction. In 1821 he became adjutant-general of the state, and 
 in 1823 was comptroller. In 1829 he was appointed a Supreme Court 
 justice, and he remained upon the bench until his election to the United 
 States senate in 1831. 
 
412 HISTORY OF THE BENCH AND BAE OF NEW YOKK 
 
 Judge Marcy delivered interesting decisions in the Supreme Court 
 in a number of important cases. The most memorable were those ren- 
 dered in the trials of the alleged abductors and murderers of William 
 Morgan, who had mysteriously disappeared from his home after it 
 became known that he was about to publish a book in which he 
 claimed to expose the secrets of the fraternity of freemasons. These 
 suits came before Judge 'Marcy on appeal. 1 Some convictions resulted 
 on the charge of abduction, but the charge of murder was never estab- 
 lished judicially. Public sentiment, however, found political expres- 
 sion leading to the formation of an anti- masonic party in this and other 
 states. Only in Vermont was state control secured by the agitators, 
 and in a few years the movement subsided even there. 
 
 The two years of his service in the United States senate, from 1831 
 to 1833, added greatly to Judge Marcy's political prestige. He was 
 chairman of the judiciary committee, and distinguished himself in 
 important debates by speeches in opposition to Clay and Webster. 
 Having been elected governor of New York in 1833, he resigned from 
 the senate and remained governor for three successive terms, until 1839, 
 when Seward defeated him for re-election. From 1839 to 1842, by ap- 
 pointment of President Van Buren, he was one of the commissioners for 
 the adjudication of the claims against the Mexican government. He 
 was chairman of the New York democratic state convention in 1843, 
 was active in the Polk campaign, and upon the election of the latter 
 to the presidency was appointed secretary of war. He occupied that 
 office during the memorable period of the Mexican war. His able 
 administration of the portfolio received no commendation from the 
 whig generals in the field, Scott and Taylor, however, who professed 
 that their movements had been hindered. Under this aggravating 
 attack Marcy finally broke silence and entered upon a defence of his 
 conduct of the war department, which resulted in the complete dis- 
 comfiture of his opponents. Upon the retirement of Polk Marcy re- 
 sumed the practice of law, appearing in notable cases, but in 1853 he 
 was once more called into the public service as secretary of state under 
 President Pierce. 
 
 His policy on questions of state as a member of these two Cabinets 
 gave to him high rank among American statesmen. While secretary 
 of war his diplomatic abilities were of great advantage to the country 
 in the settlement of the Oregon boundary dispute. His discussion as 
 secretary of state of such questions as the dues for navigation of the 
 Danish sound, the enlistment of volunteers for foreign wars, and the 
 status of the Central American states in relation to this country, in 
 view of the traditions associated with the Monroe doctrine, were valu- 
 able contributions to the American state papers, and were influential 
 
 1 See 4 Wendell, 229— case of People to. Mather. The the law of trials, the impanelling of juries, and the sub- 
 defendant, accused of conspiracy, had been acquitted ject of conspiracies. It is a monument of research and 
 and the prosecution asked for a new trial. Judge Mar- laborious citation of authorities. 
 cy's opinion covers twenty-seven pages and discusses 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 413 
 
 in the promotion of settled public opinion. Especially significant was 
 his correspondence with the Austrian government in the case of Martin 
 Koszta, involving entirely new issues in international law. On domestic 
 questions his views were always ably presented, although his judg- 
 ment has not in every case been vindicated. He favored the enactment 
 of the tariff of 1846. The inevitable development of the slavery ques- 
 tion to a final, decisive settlement he did not foresee, but believed that 
 a policy of strict neutrality and non-interference would lead to a gradual 
 subsidence of the agitation. 
 
 Secretary Marcy's death was sudden and peculiar. He retired to 
 private life at the close of the Pierce administration. Four months 
 later he was found dead in his library one evening with an open book 
 before him. 
 
 l^^i lARTIlSr, ISAAC P. (born in 1815 ; died in Fort Washington, 
 W9M | New York, September 27, 1894), was admitted to the bar at 
 Wfcffl: the age of twenty-two and early became a successful practL 
 : ' : V;: ' m l tioner in New York City. His law firm was known, succes- 
 sively, as Martin & Strong, Martin, MacClay & Strong, Martin, Strong 
 & Smith, and Martin & Smith. During the panic of 1873 Martin & 
 Smith were attorneys for the Wall street firm of George B. Grinnell & 
 Co., which had long been known as one of the most solid financial 
 establishments in New York, transacting an enormous business as 
 agents. At this time Grinnell & Co. held for Clark, Schell & Co., 
 bankers, two-thirds of $17,000,000 of railway securities, upon which 
 the former firm had obtained large loans, having a credit margin of 
 $2,000,000. When the panic came the market value of the securities 
 fell and the margin of $2,000,000 was wiped out. Under the rule of 
 the stock exchange hopeless ruin impended. To the astonishment of 
 the creditors and the stock exchange Martin & Strong, as attorneys for 
 Grinnell & Co., began proceedings in bankruptcy and applied to the 
 courts for the appointment of an. assignee. This course was unprece- 
 dented in the history of speculation and at once tied up a large part 
 of Wall street's stock in trade. Not a single share of the securities that 
 Grinnell & Co. held pledged as security could be sold pending the 
 assignee's appointment. The stock exchange suspended operations 
 for two weeks. Meantime the panic subsided, confidence was restored, 
 and Grinnell & Co. not only met their obligations to the extent of 
 $15,000,000, but were ready to come out of bankruptcy with a surplus 
 fund of $750,000. 
 
 Mr. Martin accumulated a large fortune. 
 
414 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 ARVIN, DUDLEY (born in Lyme, Connecticut, May 6, 1786 ; 
 died in Ripley, Chautauqua county, New York, June 25, 
 1856), was educated in the common schools and academies, 
 removed to Canandaigua, New York, read law, and was ad- 
 mitted to the bar in 1811. He served four terms in congress as a whig, 
 three of them continuously, from 1823 to 1829, and again from 1847 to 
 1849. Between these periods he had removed to New York City, where 
 he enjoyed a large law practice, but vested interests led to his return 
 to Chautauqua county in 1845. During his first period in congress, as 
 second on the committee having a revision of the tariff under considera- 
 tion, and in the absence of the chairman, he drew up a report on the 
 question of a wool tariff which attracted wide attention and led to the 
 "woollen bill." In 1847, commenting upon the president's message 
 concerning the Mexican war, he discussed the slavery question in terms 
 which were a remarkable forecast of the ' ' irrepressible conflict." As a 
 lawyer he was characterized for eloquence of address and acuteness in 
 cross-examination. 
 
 igglARVIN, RICHARD PRATT (born in Fairfield, Herkimer 
 MJjUM county, New York, December 23, 1803 ; died in Jamestown, 
 aflsl New York, January 11, 1892), was a lineal descendant of 
 " ""^ Reinold Marvin, one of the original settlers of Hartford, Con- 
 necticut. Obtaining a common-school education, he commenced the 
 study of law in the office of George W. Scott in Newark, Wayne 
 county. He afterward studied with Mark H. Sibley in Canandaigua 
 and with Isaac Seeley in Cherry Valley. He was admitted to the bar 
 in New York City (1820), afterward settling in Jamestown, where he 
 early rose to prominence in the profession. In 1835 he was elected to 
 the assembly, and in 1836 and 1838 was chosen to represent the 31st 
 district in congress, serving throughout the whole of Van Buren's ad- 
 ministration. He was admitted to practice in the United States Su- 
 preme Court while in Washington upon the motion of Daniel Webster. 
 In 1846 he served as a member of the constitutional convention. In 
 1847 he was elected a justice of the Supreme Court, and in January, 
 1855, he was appointed to the Court of Appeals. In November of the 
 same year he was re-elected to the Supreme Court, and in 1863 was again 
 appointed to the Court of Appeals. He was chosen for the third time 
 on the Supreme Court bench in 1863, serving until 1873. His judicial 
 career extended over a period of more than twenty-four years. He was 
 one of the best jurists of the state, and was a man of great ability and 
 sterling integrity. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 415 
 
 gplATHEWS, VINCENT (born in Orange, New York, June 29, 
 WJm\ 1766 ; died in Rochester, New York, August 23, 1846), after 
 |P|e| receiving his education under the famous Noah Webster 
 " :;r ^ studied law in the City of New York, was admitted to the 
 bar, and began practice in Elmira, New York, where he became active 
 in public life. He was elected to the assembly in 1793 ; was a member 
 of the state senate in 1798 ; in 1798 was commissioner to adjust the 
 land claims under the bounty provisions ; and was elected to congress 
 as a federalist for the term from 1809 to 1811. During the three years 
 from 1812 to 1815 he was district-attorney of the state of New York. 
 He resided for a time in Bath, removing to Rochester later on. In 1826 
 he was once more elec.ted to the assembly, this time from Monroe 
 county, and was chairman of the finance committee in that body. Be- 
 tween 1831 and 1833 he was district attorney of Monroe county. He 
 was " at the time of his death senior member of the bar of western 
 New York." 
 
 AXWELL, HUGH (born in Paisley, Scotland, in 1787 ; died 
 in New York City, March 31, 1873), was brought to this 
 country in childhood by his parents, and in 1808 was gradu- 
 ated from Columbia College. He studied law and was ad- 
 mitted to the bar of New York City, where he engaged in practice. 
 In 1814 he was appointed assistant-judge-advocate-general of the 
 United States army. Elected district-attorney of New York county, 
 he served continuously during the long period of twenty years, from 
 1819 to 1839. Notable among the convictions which he obtained were 
 those of the banker, Jacob Barker, and the ship-builder, Henry Eck- 
 ford — both well-known citizens — for conspiracy to defraud insurance 
 companies. The poet Halleck wrote some lines in which he attacked 
 Maxwell for his zeal in this case, but the district-attorney was upheld 
 by the general sentiment of the community. From 1849 to 1852 Mr. 
 Maxwell was collector of the port of New York, receiving the appoint- 
 ment as a whig. He was president of the Saint Andrew's Society, and 
 at the time of his death was its oldest member. 
 
 |«^#|ILLER, THEODORE (born in 1816; died in Hudson, New 
 l|l^W| York, August 18, 1895), was educated at the public schools 
 lp|ill| and admitted to the bar in 1837. He was district-attorney of 
 |. ;#N| Columbia county from 1843 to 1845, conducting successfully 
 the prosecutions against the leaders of the anti-rent agitation. He was 
 elected a justice of the Supreme Court in 1861, and during the last four 
 years of his service was presiding justice of the 3d department. In 
 1874 he was elected to the bench of the Court of Appeals, from which 
 he retired upon reaching the age limit in 1886. 
 

 416 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 ILLS, ISAAC N. (born in Thompson, Windham county, Con- 
 necticut, September 10, 1851), is descended from paternal 
 ancestors who were farmers in the town of Thompson from a 
 period antedating the Revolution. On his mother's side he 
 is descended from a family of Rhode Island Quakers, to a branch of 
 which General Greene, of revolutionary fame, belonged. 
 
 At the age of seventeen he entered the Providence Conference Sem- 
 inary, at Greenwich, Rhode Island, taught district school for a term,, 
 working evenings to keep up with his class, and was graduated in the 
 summer of 1870 at the head of his class. Entering Amherst College 
 he took prizes during the course in Latin, Greek, philosophy, physi- 
 ology, debate, and extemporaneous speaking, and was graduated in 
 1874 as valedictorian, having also been for two years president of 
 his class. In 1876 he was graduated from Columbia College Law 
 School, and in October of that year was admitted to the bar in New 
 York City. He began practice at Mount Vernon, becoming a member 
 of the law firm of Mills & Wood, this, partnership continuing until 
 1882. Judge Mills won a reputation as an exceptionally successful trial 
 lawyer and appeared in many of the most important litigations of 
 Westchester county, including the contests over the wills of William 
 M. Wallace and Alfred H. Duncombe, both leaving large estates, the 
 case of Reynolds against the Bank of Mount Vernon, and the investi- 
 gation of the Westchester Temporary Home. 
 
 In the fall of 1883 he was elected to succeed Judge Gifford as county 
 judge of Westchester county. In the fall of 1889 he was re-nominated 
 by the republican party and reelected by a largely increased major- 
 ity, although that party was at that time in a minority in Westchester 
 county. His judicial career has been thus characterized: 
 
 It is the unanimous verdict of the bar that he possesses the judicial temperament 
 to a very remarkable degree. He always gives to every lawyer a patient hearing 
 and to every question thorough consideration before rendering his decision. In the 
 trial of cases before his court with a jury he has made a practice, where the case 
 was at all doubtful, of entertaining a motion upon the minutes for a new trial not 
 merely as a matter of form but as a matter of substance, and of hearing full argu- 
 ment upon the motion, reviewing his decision and carefully examining for himself 
 the matters involved, and granting a new trial if finally convinced that material 
 error has been committed. It has also been his practice in deciding any matter at 
 all novel or intricate to file with his decision a written opinion stating clearly the 
 grounds thereof and the reasoning by which his conclusions were reached. This 
 practice has been very generally approved by the bar. His charges to the jury have 
 
 been greatly commended for their clearness and pre-eminent fairness As 
 
 presiding judge of the Court of Sessions, he has conducted the trial of some of the 
 most noted criminal cases ever tried in Westchester county. Among these are the 
 cases of "Wing (murder in second degree), Warren (manslaughter), White (rape), and 
 Oassidy (arson). Each of those cases occupied several days in the trial and were 
 tried by eminent counsel who raised every possible point, and yet no ruling of 
 Judge Mills in any of those cases was found to be erroneous. 
 
 In October, 1895, at the close of his second term, the republican 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 417 
 
 county convention tendered him a re-nomination, which he declined 
 to accept for the reason that nnder the new constitution the county 
 judge of Westchester county was disqualified from practicing in the 
 Supreme Court or Court of Appeals. While county judge he had 
 continued to practice in those courts. Since 1895 he has devoted him- 
 self exclusively to the practice of law, having offices in New York 
 City as well as Mount Vernon. 
 
 He is a member of the New York State Bar Association, the Asso- 
 ciation of the Bar of the City of New York, the Union League Club 
 of New York City, the New York New England Society, Sons of the 
 Revolution, Society of Medical Jurisprudence, Delta Kappa Epsilon 
 Club, New York Republican Club, and the masonic fraternity. He is 
 a well-known speaker upon public occasions— especially in connection 
 with the celebrations held under the auspices of the Sons of the 
 Revolution. 
 
 SgBaiTCHELL, WILLIAM (born in the City of New York, 
 Wwt- February 24, 1801 ; died while on a visit to the summer 
 Sptfi. residence of his son, at Morristown, New Jersey, October 6, 
 '' " 1886), was the son of Reverend Edward Mitchell and Cornelia 
 Anderson. 1 He stood at the head of his class in the preparatory school 
 of Joseph Nelson, and was graduated from Columbia College with all 
 the honors in 1820. He studied law with William Slosson. and was 
 admitted to the bar as an attorney in 1823, as solicitor in chancery in 
 1824, as counsellor at law in 1826, and as counsellor in chancery in 
 1827. He soon won recognition as a learned lawyer. He edited an 
 edition of Blackstone, with American cases, published in 1841, and was 
 recognized as an expert in real estate, probate and commercial law. 
 Appointed master of chancery in 1840, he distinguished himself in 
 difficult cases and acquired a large practice. He was a justice of the 
 Supreme Court for the 1st judicial district of New York from 1849 to 
 1858, serving as a judge of the Court of Appeals in 1856, and becoming 
 presiding justice of the Supreme Court of his district in 1857. 
 
 A most remarkable tribute to his judicial abilities and fairness is 
 the fact that from his retirement from the bench until his death, by 
 common consent of the legal profession of New York City, he was 
 practically continued in the discharge of important judicial duties, 
 holding court almost continuously as referee for the adjudication of 
 cases assigned to him by the judges or referred to his arbitration by 
 mutual consent of the parties at issue. This was a unique distinction 
 in the degree that he enjoyed it. " His reported opinions," says the 
 venerable Benjamin D. Silliman, " are marked by breadth and force of 
 reasoning and large learning, which give to them permanent value." 
 
 i His father was bom in Coleraine, Ireland, came to Mitchell's mother was a native of New York City, of 
 America in 1791, resided'for a time in Philadelphia, and Dutch ancestry. She was descended from Peter Andres- 
 removed to New York City, which was for many yea sen, who received a grant of land in New Amsterdam m 
 his residence, and where he died in 1834. Judge 1645, 
 
418 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 OAK, NATHANIEL C. (born in Sharon, Otsego county, New 
 York, October 3, 1833 ; died in Albany, September 17, 1892), 
 was one of the most accomplished case lawyers in the United 
 States. He read law with James E. Dewey, of Cherry Valley, 
 and was admitted to the bar in 1856. In 1867 he went to Albany, 
 where he practiced till his death. He was elected in 1871 district- 
 attorney of Albany county. As a practitioner he was engaged in 
 many celebrated cases. His library was probably the most extensive 
 collection of law books ever brought together by an individual. He 
 was noted for his law learning and his kindness of nature. He was 
 the nestor of the Albany bar. 
 
 OMPESSON, ROGER, one of the early colonial chief -justices 
 (commissioned July 15, 1704), was an able man, who in Eng- 
 land had been for two terms a member of parliament and 
 had filled the office of recorder of Southampton (England). 
 He was of an old English family, and came to America with a letter of 
 introduction from William Penn, asserting him to be " well grounded 
 in the law and an honest, good-tempered and sober gentleman." He 
 was a man of learning in his profession, and O'Callaghan says he " did 
 more than any other man to mould the judicial system of both New 
 York and New Jersey." He was, however, a partisan of Lord Corn- 
 bury's, and has received from a historical writer " a sentence of stern 
 and unqualified condemnation " for signing the address to the queen 
 justifying the whole of Cornbury's conduct. 
 
 He served as chief -justice from 1704 to 1715. He had previously 
 (1703) been commissioned admiralty judge for New York, New Jersey, 
 Connecticut, Rhode Island and Massachusetts Bay. 
 
 ; 
 
 ONELL, CLAUDIUS L. (born in Columbia county, New York, 
 in 1815 ; died in Narragansett Pier, Rhode Island, August 1, 
 1876), was a son of Joseph D. Monell, a prominent lawyer of 
 Columbia county. He studied . law in the office of Judge 
 Edmonds and began practice in Hudson as a member of the firm of 
 Hogeboom, Sutherland & Monell. About 1850 he removed to New 
 York and opened a law office in association with his old partner, Judge 
 Josiah Sutherland. After Judge Sutherland's election to congress this 
 association was dissolved. Later he organized the firm of Monell, Wil- 
 lard & Anderson. 
 
 In November, 1861 , he was elected judge of the Superior Court of 
 the City of New York for a term of six years, and he was re-elected in 
 1867 and 1873 — on the latter occasion for a period of fourteen years. 
 He became chief-justice of the court January 8, 1874, succeeding John 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 419 
 
 M. Barbour. Judge Monell was a member of the constitutional con- 
 vention of 1867. 
 
 During his early career he wrote a treatise, " Monell's Practice," 
 which, as the first work on the subject after the adoption of the code, 
 w:as very favorably received. 
 
 |S|f||ORELL, GEORGE (born in Lenox, Massachusetts, March 22, 
 lgffi|| 1786 ; died in Detroit, Michigan, March 8, 1845), was gradu- 
 W[w ated from Williams College, and after his admission to the 
 
 " ' '' bar in 1811 engaged in practice in Cooperstown, New York. 
 
 In 1827 he became the first county judge of Otsego county, and in 1832 
 held the same office again. He was a member of the assembly in 1829. 
 His subsequent career was in Michigan, where he became a distin- 
 guished jurist. He was United States judge of that territory from 1832 
 to 1836 ; justice of the Michigan Supreme Court from 1836 to 1843 and 
 chief-justice of the same from July 18, 1843, until his death. 
 
 ORELL, GEORGE WEBB (born in Cooperstown, New York, 
 January 8, 1815 ; died in Scarborough, New York, February 
 12, 1883), was the son of the preceding, and his wife, a daugh- 
 ter of General Samuel B. Webb. After his graduation 
 from West Point in 1835, he was engaged with the engineer corps in 
 improvements of the Lake Erie harbors, the Ohio and Michigan bound- 
 ary surveys, and the construction of Fort Adams, at Newport, Rhode 
 Island. Resigning from the army, he engaged in railroad construction 
 in the Carolinas and Michigan, but in 1840 removed to New York City. 
 Here he studied law, and practiced. From 1854 to 1861 he was United 
 States Circuit Court commissioner for the southern district of New 
 York. He rose to the rank of major-general during the civil war, and 
 afterward retired to country life at Tarrytown, New York. 
 
 ORGAN, CHRISTOPHER (born in Aurora, Cayuga county, 
 New York, June 4, 1808 ; died in Auburn, New York, April 
 3, 1877), was graduated from Yale College in 1828. After 
 studying law with William H. Seward and being admitted to 
 the bar, he became Mr. Seward's partner, and he attained to consider- 
 able prominence in public life. He was a member of congress for two 
 terms, from 1839 to 1843, and from 1848 to 1852 was secretary of state 
 of New York. He was long a trustee of the lunatic asylum at Utica, a 
 state institution. For a time he was a merchant. His brother, Edward 
 Barber Morgan, was the well-known philanthropist, for a time part 
 owner of the New York Times, and one of the founders of the Wells 
 & Fargo and the United States express companies. 
 
420 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 ORGAN, LE ROY (born in Onondaga county, New York, in 
 1810 ; died in Syracuse, New York, May 15, 1880), was admit- 
 ted to the bar at the age of twenty-two. In 1843 he was 
 appointed to the office of district-attorney of Onondaga 
 county, which he held for three years. He was elected in 1859 a justice 
 of the Supreme Court, and at the end of eight years was re-elected 
 without opposition. He became chief-justice of the court. Upon 
 completing his second term he retired and resumed the practice of his 
 profession. He was a man of learning and ability, and a very useful 
 servant on the bench. 
 
 ORRIS, GOUVERNEUR (born in Morrisania, New York, 
 January 31, 1752 ; died in the same place, November 6, 1816), 
 was the son of Lewis Morris, 2d, and half-brother of Lewis 
 Morris, 3d, signer of the declaration of independence. Al- 
 though a member of the family most illustrious for legal attainments 
 (with that of . Smith as a close rival) in the colonial history of New 
 York and New Jersey, and himself bred a lawyer, the fame of Couver- 
 
 neur Morris is not at all that of either 
 lawyer or judge. He was admitted to 
 the New York bar in 1771, however, 
 having been graduated from King's 
 College, now Columbia, in 1768. 
 Doubtless this legal training was of 
 great service to the state and the na- 
 tion, for although Morris was a legis- 
 lator, statesman, and diplomat, rather 
 than a lawyer, yet in some of these 
 capacities he had much to do with 
 moulding our constitutional law. He 
 served on the committee which drafted 
 the state constitution of 1776 ; was in 
 1787 a delegate to the convention that 
 framed the constitution of the United 
 States, and had assigned to him the 
 final revision of that instrument ; was 
 confidential agent to negotiate with the 
 British government respecting the terms of the treaty of peace, and 
 as a member of the United States senate he defended the judiciary sys- 
 tem provided by the constitution against those who advocated its abo- 
 lition. In these respects, his connection with matters of great legal 
 interest was one of unusual import. Pull accounts of his services as 
 a statesman and diplomat are easily accessible. . 
 
HISTOEY OE THE BENCH AND BAK OF NEW YORK 
 
 421 
 
 ORRIS, LEWIS, 1st (born in New York City, in 1671 ; died 
 in Kingsbury, New Jersey, May 21, 1746), the ancestor of a 
 family of lawyers and jurists, was the son of Richard Morris, 
 an officer in Cromwell's army. His parents both dying when 
 he was an infant, he was brought up by an uncle who had large landed 
 interests at Morrisania, Westchester county, now a part of New York 
 City. As a youth Lewis Morris is said to have been quite wayward, 
 and throughout his after career 
 he was erratic, although possess- 
 ing remarkable abilities. He 
 studied law and engaged in suc- 
 cessful practice, being one of the 
 few lawyers of his day in New 
 York and New Jersey who had 
 been bred to their profession. 
 In 1692 he was appointed to the 
 bench of the Superior Court of 
 New Jersey, also becoming a 
 member of the council of Corn- 
 bury, the corrupt and effeminate 
 governor of New York and New 
 Jersey. Morris, with William 
 Smith and James Alexander, 
 was of that extraordinary trium- 
 virate in the colony of New York 
 who, with voice and pen and in 
 the courts, made the tight for 
 liberty of opinion, and of the 
 press, and of free criticism of 
 existing government and exposure of any follies or corruption of 
 which it might be guilty, which was echoed through the thirteen 
 colonies, sowing the harvest reaped in the successful struggle for inde- 
 pendence a half-century later. (See the sketches of James Alexander, 
 Andrew Hamilton, and especially of William Smith.) It was not in 
 reason that a man like Morris should prove an agreeable councillor 
 to the miserable Cornbury; he was, in fact, a thorn in the latter's 
 side, and was presently expelled from the council. Pugnacious by nat- 
 ure, however, Morris. had himself returned to the New Jersey assembly, 
 and induced that body to draw up an indictment of the governor — for 
 which, unfortunately, there were too abundant grounds. This docu- 
 ment he took to England, and personally presented to Queen Anne, 
 notwithstanding that she was Cornbury's cousin. As a result the lat- 
 ter was recalled. 
 
 Judge Morris was subsequently appointed second justice of the 
 New Jersey Supreme Court, but probably never took his seat, as he 
 was almost immediately (March 15, 1715) made chief-justice of New 
 
 ^&VU 'J$<rrrZj 
 
422 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 York and New Jersey. In this capacity lie presided in the famous 
 case of Cosby vs. Van Dam, and surprised the governor by delivering 
 an opinion in favor of the contention of the distinguished counsel for 
 Van Dam, Alexander and Smith, that the court, 
 as constituted, being the creation of the king and 
 not authorized by the legislature, was without 
 jurisdiction or power in the case. Alexander and 
 Smith were later disbarred for maintaining this 
 contention, and Judge Morris was removed from 
 office. He was chiefly instrumental in bringing 
 about the entire separation of the governments 
 of New York and New Jersey. He had been 
 councillor of the colony of New Jersey from 1710 
 to 1738, and became its acting-governor in 1731 and its governor from 
 1738 until his death in 1746. 
 
 MOKKIS ARMS. 
 
 ORRIS, LEWIS, 2d (born in 1698 ; died in 1762), was the son 
 of the preceding. He was carefully educated, bred to the 
 law, and subsequently became chief justice of the Vice- 
 Admiralty Court. He was father of Lewis Morris, 3d, signer 
 of the declaration of independence, and of the famous Gouverneur 
 Morris, noticed above ; these two sons being by different wives. 
 
 ULLETT, JAMES (born in Whittingham, Vermont, October 
 17, 1784 ; died September 10, 1858), son of a tailor, and him- 
 self apprenticed to a millwright at Darien, New York, 
 whither his father removed about 1800, subsequently studied 
 law by himself while performing the duties of clerk for a business firm 
 at Fredonia, New York. Admitted to the bar in 1814, he was a member 
 of the assembly in 1828 and again the following year. In 1841 he lo- 
 cated in Buffalo. He was appointed attorney of Buffalo in 1846, and 
 in 1847 was elected a justice of the Supreme Court for the 7th judicial 
 district. 
 
 UNRO, PETER JAY (born in Rye, New York, January 10, 1 767 ; 
 died in Mamaroneck, IS ew York, September 23, 1833), was the 
 son of Reverend Henry Munro and Eve, only daughter of 
 Peter Jay. His father was born in Scotland and was com- 
 pelled to flee to England during the Revolution on account of his Brit- 
 ish sympathies. At the age of thirteen Peter Jay Munro accompanied 
 his distinguished uncle, John Jay, to Madrid, upon the appointment of 
 the latter as United States minister to Spain in 1779. His previous 
 education had also been under the direction of John Jay. During a 
 residence of three years in Madrid and two in Paris he became profi- 
 
HISTORY OP THE BENCH AND BAR OF NEW YORK 423 
 
 cient in the Spanish and French languages. Returning to New York 
 City in 1784 he studied law with Aaron Burr, and after his admission 
 he soon acquired a large practice, and with comparative rapidity won 
 recognition as one of the leaders of the New York bar. 
 
 He was a member of the constitutional convention of 1821, and by 
 appointment of Governor Tompkins was chairman of its judiciary com- 
 mittee. Receiving a severe stroke of paralysis in 1826 while in the 
 discharge of professional duties, he retired to his country estate in 
 Westchester county, where he lived until his death. 
 
 URPHY, HENRY CRUSE (born in Brooklyn, New York, 
 July 5, 1810; died there, December 1, J 882), was one of the 
 most notable figures in the history of the Brooklyn bar, dis- 
 tinguishing himself as a lawyer, as a historian and in public 
 life. He was graduated from Columbia College in 1830, studied law, 
 and began writing for the newspapers. He was admitted to practice 
 in 1833. In 1834 he was appointed assistant-corporation counsel of 
 Brooklyn, and subsequently he became attorney of the city and also 
 corporation counsel. In partnership with John A. Lott from 1835 he 
 enjoyed a large and important practice. He soon took an active part 
 in democratic politics, and frequently contributed articles on current 
 topics to the leading periodicals. Becoming an editor and part pro- 
 prietor of the Brooklyn Eagle in 1841, his policy in connection with 
 this journal attracted attention, leading to his nomination and election 
 as mayor of the city the following year. His administration was char- 
 acterized by economy in . 
 expenditure, but coupled /%], /T 
 with public improve- n/**C<OCUJ C^ . 
 ments, such as the exten- 
 sion of the wharf system. He was at once elected to congress, serving 
 from 1843 to 1847, two terms. He was United States minister to Hol- 
 land from 1857 to 1861. During these years he made a study of the 
 Dutch period of the Colony of New York, availing himself of the docu- 
 mentary resources which his sojourn at the Hague placed at his dis- 
 posal. Returning to this country he was elected to the state senate, 
 where he served through six terms. He earnestly supported the gov- 
 ernment during the civil war. He was a prominent member of the 
 constitutional convention of 1867, having also been chairman of the 
 committee on corporations in the constitutional convention of 1846. 
 
 Mr. Murphy was one of the founders of the city library of Brook- 
 lyn and of the Long Island Historical Society. His important historical 
 works include De Vries' " Voyage from Holland to America, a. r>. 1632- 
 1644," annotated (1853) ; a " Catalogue of an American Library, Chron- 
 ologically Arranged " (an account of his own collections, 1853) ; " Broad 
 Advice to the New Netherlands " (coll. N. Y. Historical Soc.) ; " The 
 
424 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 First Minister of the Dutch Reformed Church in the United States " 
 (The Hague, 1857) ; " Henry Hudson in Holland : An Enquiry into the 
 Origin and Objects of the Voyage which Led to the Discovery of the 
 Hudson River" (The Hague, 1859); "AnthJology of the New Nether- 
 lands, or Translations from the Early Dutch Poets of New York, with 
 Memoirs of their Lives" (1865, printed for the Bradford Club) ; "The 
 Voyage of Verrazano " (Albany, 1865) ; " Memoir of Hermann Ernst 
 Ludewig," and a translation of the " Voyage to New York," by Jasper 
 Dankers and Peter Sluyter (Brooklyn, 1867). 
 
 URRAY, JOSEPH, was one of the most eminent of the co- 
 lonial lawyers, being at the time of his death (1757) the rec- 
 ognized head of the bar. He was a native of Ireland, came 
 ^ to New York in early life, and studied law here. He married 
 a daughter of Governor Cosby and was called to the council. He 
 amassed a large fortune by his practice and collected a valuable library, 
 which he bequeathed to King's (now Columbia) College. The books 
 were stolen and scattered in the fall of 1776 by Lord Howe's soldiers. 
 Judge Jones declares that they were "publicly hawked about the town 
 for sale by private soldiers, their trulls and doxeys." He affirms that 
 he himself " saw an Annual Register neatly bound & lettered, sold 
 for a dram, Freeman's Reports for a shilling ; and Coke's J st. Institute, 
 or what is usually called Coke upon Littleton, was offered to me for 
 Is. 6d. I saw in a public house on Long Island nearly 40 books bound 
 and lettered, in which were affixed the arms of Joseph Murray, Esq., 
 under pawn for from one dram to three drams each." 
 
 He was for many years attorney-general. As a practitioner he had 
 much legal experience and displayed ability in the argument of law 
 questions, but was not specially remarkable otherwise. 
 
 URRAY, WASHINGTON (born in New York City in 1828 ; 
 died September 19, 1867), was the son of Colonel James B. 
 Murray and Maria Bronson, both representatives of old New 
 York City families. His father entered the war of 1812 as 
 2d lieutenant of artillery ; was promoted before its close to lieutenant- 
 colonel ; and in 1817 was commissioned colonel of the 4th regiment 
 of New York State artillery. His mother was a daughter of Doctor 
 Isaac Bronson, of New York City, who served as a surgeon in the 
 revolutionary army ; was one of the founders of the New York Life 
 Insurance and Trust Company ; and carried his bank at Bridgeport, 
 Connecticut, through the war of 1812 without suspending specie 
 payments. 
 
 Mr. Murray was graduated from Yale in 1849 and from Harvard 
 Law School in 1851. He was admitted immediately afterward to the 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 425 
 
 bar in New York City, where he at once commenced practice, becom- 
 ing a member of the firm of Mott & Murray in 1853, of Mott, Murray & 
 Harris in 1858, and of Murray & Miller in 1865. He followed a varied 
 practice, in which he was eminently successful. He was popular 
 among the members of the bar, and his high professional and private 
 character was universally recognized. In 1856 he married Miss Eliza 
 B. W. Dana, one of the belles of Boston, who survives him. 
 
 He. was for several years a trustee of public schools in the 18th 
 ward, and was a member of the Union Club. He was only at the 
 threshold of his career when his early death at the age of thirty-nine 
 years ended a professional life of great promise. 
 
 ASH, STEPHEN PAYNE (born in Albany, New York, Au- 
 gust 26, 1821), is the son of David Nash and Hannah Payne. 
 His father, a descendant of Thomas Nash, one of the orig- 
 inal settlers in New Haven, Connecticut, in 1638-40, and of 
 Reverend Samuel Stone, pastor of the church at Hartford (1636), died 
 at the early age of forty. His widow, with her young children, moved 
 to Saratoga Springs. Mr. Nash attended the Albany Academy, of 
 which Doctor T. Romeyn Beck was president, and after the removal 
 to Saratoga spent some time in the French college at Chambly, Lower 
 Canada, subsequently entering the law office of Esek Cowen, one of 
 the justices of the Supreme Court living at Saratoga. Chancellor Wal- 
 worth and Judge Willard, then circuit judge of the Supreme Court, 
 also resided in the same village. There Mr. Nash completed his pre- 
 paratory professional studies and was admitted to practice in the Su- 
 preme Court in January, 1843, receiving at once from Chancellor Wal- 
 worth, without further examination, his license as solicitor and counsel 
 in chancery. During his clerkship he had assisted Judge Cowen and 
 Mr. Nicholas Hill in their labors on the voluminous " Cowen & Hill's 
 Notes to Phillips' Evidence." Mr. Hill was appointed state reporter 
 in 1842 and removed to Albany. 
 
 Upon his admission to the bar Mr. Nash formed a partnership with 
 Augustus Bockes, afterward a judge of the Supreme Court for the 
 4th judicial district, but soon removed to Albany to become junior 
 partner to Mr. Hill, whom he assisted in the later volumes of his 
 valuable reports. In 1845 he removed to New York City, becoming a 
 member of the firm of Walker & Nash. Shortly afterward he formed 
 with Gilbert M. Speir, afterward a judge of the New York Superior 
 Court, the firm of Speir & Nash, and some seventeen years later, with 
 Edward H. Owen and Joseph H. Gray, the firm of Owen, Nash & Gray. 
 On the dissolution of that partnership he formed with his son, John 
 McL. Nash, and George C. Holt the firm of Nash &Holt, with J. P. 
 Kingsford the firm of Nash & Kingsford, and finally with his son and 
 Mr. Charles L. Jones the present firm of S. P. & J. McL. Nash. 
 
426 HISTORY OF THE BENCH AND BAB OP NEW YORK 
 
 Mr. Nash's admission to the chancery bar, prior to the abolition of 
 that court by the constitution of 1846, may to some extent explain 
 the bent of his studies. While he has had a varied experience in all 
 branches of civil jurisprudence, he has distinguished himself in a special 
 way in the line of cases which involve equity law and the remedies by 
 which equitable as distinguished from purely legal rights are enforced. 
 The range of his professional work is illustrated by such cases as 
 Spear vs. Wardell, in the first volume of the New York Court of Ap- 
 peals Keports ; Dupuy vs. Wurtz (53 N. Y.), Fowler vs. New York Gold 
 Exchange Bank (67 N. Y.), and many others in the series down to Hol- 
 ley vs. Hirsch (135 N. Y), and Smith vs. Parsons (146 N. Y.). In the 
 United States Courts, among other interesting cases was that of Cau- 
 jolle vs. Ferrie (13 Wallace), Clark vs. Iselin (21 Wallace), Macon vs. 
 Lamar (114 U. S.), and Liverpool & Great Western Company vs. 
 Phenix Insurance Company (115 U. S.). 
 
 Being a member of the Episcopal Church, Mr. Nash early became 
 connected with the various organizations of that communion in the 
 diocese of New York. He has been for many years a member of the 
 standing committee of the diocese of New York, became a vestryman 
 of Trinity Church in 1868, and is a trustee of the General Theological 
 Seminary of the Episcopal Church. He has represented the diocese 
 of New York in the triennial general conventions of the church since 
 1880. During this long experience he has become familiar with the 
 laws affecting religious corporations, and has been much consulted in 
 matters of ecclesiastical law. In 1885 he was retained to go to England 
 as an expert witness in the Lauderdale Peerage case, and testified before 
 the committee for privileges of the House of Lords as to the law of 
 marriage in the Colony and State of New York (10 App. Cas. 692, 728.) 
 
 He was elected a trustee of Columbia College in 1868, and has taken 
 a very active interest in the work of the Law School of that institution, 
 which has constantly increased in importance, and is now provided 
 with a fully developed faculty of six professors. He received the 
 degree of doctor of laws from Columbia College in 1888 and the same 
 degree from Trinity College, Hartford, in 1891. He was one of the 
 founders of the Association of the Bar in the City of New York in 
 1869 and 1870, assisted in the preparation of its first constitution, and 
 personally drafted the address by which the organization was recom- 
 mended to the profession at large. In 1880 he was elected president of 
 the association, succeeding William M. Evarts, its first presiding officer. 
 
 EILSON, JOSEPH (born in Argyle, New York, in 1813 ; died 
 in Brooklyn, New York, January 26, 1888), was of Scotch- 
 Irish ancestry. He first practiced law in Oswego, continuing 
 there until 1844, when he went to New York City. In 1848 
 he removed to Brooklyn, and the year following was elected one of the 
 
HISTORY OF THE BENCH AND BAR OE NEW YORK 427 
 
 judges of the City Court on the democratic ticket. He was re-elected 
 in 1877, and served as presiding judge until his retirement in 1883, 
 having reached the age limit of seventy years. He presided over 
 many important trials, notably the Heman-Earle breach of promise 
 suit and the Tilton-Beecher case. 
 
 ELSON, HOMER A. (born in Poughkeepsie, New York, 
 August 31, 1829 ; died there, April 25, 1891), entered upon 
 the study of the law with Tallman & Dean, in his native 
 town, at the age of sixteen. He was admitted to the bar at 
 majority, but had previously been engaged in trial cases before justices 
 of the peace, and had won a county reputation. In 1855, at the age of 
 twenty-six, he was elected county judge. He held the office, being re- 
 elected, until 1863, when he resigned to take a seat in congress. About 
 this time he also resigned the colonelcy of the 167th regiment of New 
 York state volunteers, which had been raised by his endeavors in 1862. 
 In congress, although an earnest democrat, he gave hearty support to 
 the administration measures which culminated in the emancipation 
 proclamation. Offered by President Lincoln the appointment of 
 minister to Russia, he declined it lest some suspicion might attach to 
 his motives. He was a delegate to the constitutional convention of 1867, 
 and the next year was elected secretary of state. In this office he was 
 ex officio a member of the canal and other state boards, and although 
 confronted by the powerful and corrupt Tweed regime he retired with 
 perfectly clean hands and free from political entanglements. In 1881 
 he was sent to the state senate from a district which had never before 
 given a democratic majority. He was chairman of the senate judiciary 
 committee, which had in charge the revision of the criminal code. He 
 was a prominent candidate in 1882 for the democratic nomination for 
 governor, and on the first ballot received nearly as many votes as Mr. 
 Cleveland. In 1890 he served on the commission appointed to revise 
 the judiciary article of the state constitution. 
 
 Judge Nelson, although prominent in politics for many years, 
 never neglected his professional practice, and he constantly appeared 
 as counsel at circuit and general term, both in the 2d department, 
 where he resided, and in New York City, where he had offices since 
 1872. He frequently argued suits before the Court of Appeals, and 
 almost every volume of the state reports, for a period of nearly twenty 
 years, contains cases in which he was counsel. Some of the representa- 
 tive ones are Wood vs. Fisk (63 N. Y., 245), Johnson vs. Lawrence 
 (95 N. Y, 154), Thorn vs. Garner (113 N. Y., 198), and the Vassar 
 will case. The first three were appeals taken by Judge Nelson, and 
 established new principles in law and equity not only in New York 
 but in other states. 
 
428 HISTORY OF THE BENCH AND BAB OP NEW YORK 
 
 ELSON, SAMUEL (born in Hebron, Washington county, 
 New York, November 10, 1792; died in Cooperstown, New 
 York, December 13, 1873), was of Scotch-Irish descent, the 
 founder of his family having located in Salem, New York, as 
 early as 1760. Judge Nelson attended the common schools, was 
 graduated from Middlebury College in 1813, pursued his legal studies 
 with Chief-Justice Savage of Salem, and after his admission to the bar 
 in 1814, at Madison, New York, rapidly won local distinction for his 
 brilliant professional work as a young lawyer. He also became 
 somewhat active in politics. In 1820 he was a presidential elector, and 
 he was a member of the constitutional convention of 1821. In the 
 latter body he resolutely opposed the system of property qualification 
 for the franchise. 
 
 Between 1823 and 1831 he served as circuit judge. In 1831 he be- 
 came a justice of the state Supreme Court, and in 1837 was made its 
 chief -justice, a position which he held for eight years. He was a mem- 
 ber of the constitutional convention of 1846. In 1845, by appointment 
 of President Tyler, he succeeded Smith Thompson as an associate- 
 justice of the United States Supreme Court, and he remained a member 
 of this highest tribunal until October, 1872, when illness caused by 
 exposure while acting on the special commission appointed to arbitrate 
 the Alabama claims forced him to resign. 
 
 Judge Nelson was characterized by the possession, in a marked 
 degree, of the conservative judicial temperament which is supposed to 
 be especially suited to the requirements of the bench. He was very 
 deliberate in reaching conclusions, and as considerate as possible of 
 those whose contentions he felt compelled to disallow. He disliked to 
 disappoint any ; yet it could scarcely be said that he permitted the 
 sentimental disposition to intrude unduly into his decisions. His 
 temperament rather led him to find that mean between the extremes of 
 partisan claims where the truth in a majority of cases is found to lie. 
 Thus his opinions always carried weight, and commanded the attention 
 and respect of lawyers and jurists generally. 
 
 The most notable of the historic suits which came before him was, 
 of course, the famous Bred Scott slavery test case. In this instance he 
 concurred with the decision rendered by Chief- Justice Taney upholding 
 the constitutionality of the fugitive slave law. Justice Nelson ad- 
 vanced the opinion that if congress enjoyed power under the constitu- 
 tion to restrict or abolish slavery, it must certainly possess equal power 
 to protect and maintain the same institution. Although his loyalty to 
 the federal government was unquestionable, he deeply deplored the 
 civil war, and at the outset, at least, would undoubtedly have thought 
 peaceful separation the wiser course. He lamented the intrusion of 
 military sway in usurpation of the prerogatives of civil government. 
 
 As a member of the joint high commission of arbitrators to adjust 
 the claims of England growing out of the affair of the Alabama, to 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 429 
 
 which he was appointed by President Grant, he performed excellent 
 service for his country. The consideration, candor and judicial spirit 
 exhibited by the American commissioners undoubtedly contributed 
 largely toward arriving at a fair conclusion which the foreign commis- 
 sioners could accept without imputation upon the dignity of Great 
 Britain. Justice Nelson became a martyr to his service upon this 
 commission. His death followed his resignation from the Supreme 
 Court in a little more than a year. 
 
 ICOLLS (or NICOLL), MATTHIAS (born in Islippe, Northamp- 
 tonshire, England, about 1630 ; died on Long Island, Decem- 
 ber 22, 1687), was the son of Reverend Mathias Nicolls, of 
 Plymouth, England, and was carefully educated for the law. 
 He accompanied his kinsman, Colonel Richard Mcolls, upon his 
 expedition of conquest against the Dutch at New Amsterdam, having 
 previously been a barrister of Lincoln's Inn, London. He was secretary 
 of the commission authorized to treat with the Dutch, was a captain in 
 the military under Colonel Nicolls, and carried with him a commission 
 as secretary of the Province of New York, to be used in the event of 
 the success of the expedition. He thus became the first royal secretary 
 of New York under the English. He was also a member of Governor 
 Nicolls' council. 
 
 Undoubtedly Judge Nicolls laid the foundations of our jurispru- 
 dence, as reformed under the accession of the English. He was a 
 member of the convention at Hempstead, Long Island, which promul- 
 gated the famous code known as " The 
 
 Duke's Laws," and his signature as £/$> 1% ''/ft "#/ '. /l L rjr^f 
 secretary authenticated this body of ssz/ 
 
 law. But while the Hempstead convention was, nominally, a delibera- 
 tive body, called to ponder and decide weighty matters, as representa- 
 tives of a free people, it is well known that what was really expected 
 was the solemn approval and loyal support of whatever cut-and-dried 
 programme should be furnished to the assembly. This task the con- 
 vention performed with every regard for propriety and proper forms. 
 Indeed, it was well that it was so ; for Judge Nicolls, substantially the 
 author of the code adopted, was well qualified for the part, and had 
 prepared measures which were ample for the social conditions they 
 had in view, and for the times most liberal. The laws of England, the 
 body of Dutch law, based in turn upon Roman law, and many admira- 
 ble provisions embraced in the various charters of the New England 
 colonies, had all been utilized for whatever valuable suggestions they 
 appeared to offer. 
 
 In various courts Matthias Nicolls participated in the judicial 
 administration and interpretation of the laws he had formulated. He 
 was presiding-justice of the Court of Assizes erected under this code, 
 
430 HISTOKY OF THE BENCH AND BAB OE NEW YORK 
 
 sat also in the inferior Courts of Session, and was the first judge of the 
 Court of Common Pleas of New York City. Under the legislative act 
 of 1^63, reconstructing the courts, he was appointed a justice of the 
 Supreme Court. He was elected mayor of New York in 1672, being 
 the third to hold that office. He is sometimes referred to in old docu- 
 ments as " Captain Nicolls," since he retained his military command, 
 as also the office of secretary of the province, while holding judicial 
 positions. He had a large estate called " Plandome," of some 2,000 
 acres, at Little Neck and Great Neck, Long Island. 
 
 ICOLLS (or NICOLL), WILLIAM (born in England, in 1657 ; 
 died at Islip, Long Island, in May, 1723), was the only son 
 of the preceding. He was undoubtedly trained in the law by 
 his father, and began his official career as clerk of Queens 
 county, New York, in 1683. Later, in 1688, he removed to New York 
 City, where he engaged in the practice of law, and soon came into 
 prominence. His sympathies were entirely with the aristocratic party, 
 and in the most vigorous manner he contended against Jacob Leisler 
 and his supporters. Such was his opposition to the assumption of the 
 government by Leisler in 1688, that the latter had him imprisoned. 
 Mcolls had his revenge upon the arrival of Governor Sloughter in 
 1691, however, and being released from duress soon saw the tables 
 turned, with Leisler on trial for his life, and himself and two other 
 lawyers, James Emott and George Farwell, or Farrawell, engaged in 
 the prosecution. Unfortunately their efforts were only too successful. 
 Leisler was convicted, his judges being his most bitter partisan enemies ; 
 the official signature to the death-warrant was obtained by getting the 
 governor drunk, and the liberty-loving Leisler paid the penalty of his 
 excesses in the cause he had championed. 
 
 Appointed a member of the council by Governor Sloughter in 
 1691, Nicolls held his position until removed by Governor Bellomont 
 in 1<598, upon evidence of complicity in illicit trade transactions — an 
 offence not reprobated as it should have been in those days of tolera- 
 tion of piracy and smuggling. In 1695 he was the agent of the New 
 York assembly to plead before the king that a proper share of the 
 burden of providing for the defence of the frontiers against the French 
 be borne by the other American colonies. 
 
 Among his striking cases as a lawyer, in addition to that of Leisler, 
 were his defences of Nicholas Bayard, in 1702, and of Francis Makemie 
 in 1707. Bayard, the gifted but unscrupulous leader of the aristocratic 
 party, upon receiving news of the appointment of Governor Cornbury, 
 issued a document attacking the government as conducted under Bel- 
 lomont and Nanfan. On this account he was indicted for high treason 
 — under a law of his own procurement enacted for convenient purposes 
 after the execution of Leisler, which provided that "whatsoever person 
 
HISTOKY OF THE BENCH AND BAR OF NEW YORK 431 
 
 or persons shall by any manner of way or upon any pretense whatever 
 endeavor .... to disturb the peace, good and quiet of their Majesties' 
 government as now established shall be esteemed as rebels and traitors 
 unto their Majesties and incur the pains, penalties and forfeitures as 
 the laws of England have for such offences made and provided." 
 Bayard was prosecuted by Councillor Thomas Weaver, attorney-general 
 Broughton having refused to appear against him ; and not even the 
 able defence of his brilliant counsel, William Nicolls and James Emott, 
 was sufficient to save him from conviction under this statute of his own 
 creation, now that the Leislerians had become the partisan judges and 
 himself the victim. Fortunately they did not imitate his own methods 
 against Leisler and Milborne to the bitter end, but granted him a re- 
 prieve after frightening him into making an incriminating confession. 
 
 Much more to Mr. Nicolls' credit was his able defence of Reverend 
 Francis Makemie, a presbyterian clergyman of Virginia, whom Corn- 
 bury imprisoned for the crime of preaching in New York City without 
 the precaution of soliciting the governor's permission, and notwith- 
 standing that the divine had a license from the queen to preach any- 
 where in her dominions. Mcolls triumphantly acquitted him. 
 
 Elected to the New York assembly from Suffolk county in 1701, 
 Mcolls was refused his seat because of non-residence in the county, 
 He was re-elected the following year, however, and became speaker of 
 the house. He was thereafter a member of that body for twenty-one 
 years in succession, and speaker for sixteen years. It cannot justly be 
 said that the career of this talented lawyer was beyond reproach. Of 
 the same party as Bayard, and second to him in the leadership and 
 unscrupulous political intrigueing of his day in the Province of New 
 York, he fully merits a share of the opprobrium which honest criticism 
 must pronounce. 
 
 ICOLLS (or NICOLL), WILLIAM (born in 1702 ; died in 
 1768), was the son of the preceding, and his wife, Anne, 
 daughter of Jeremias Van Rensselaer and widow of Kilian 
 Van Rensselaer, her cousin. He was well educated, studied 
 law with his father, and was a successful practitioner and long a mem- 
 ber of the assembly. He was first elected to that body in 1739, and 
 served in it continuously for twenty-nine years, until his death. 
 During the last nine years he was speaker of the house. He died 
 without issue, never having married. 
 
 OYES, WILLIAM CURTIS (born in Schodaek, Rensselaer 
 county, New York, August 19, 1805 ; died in New York City, 
 December 25, 1864), was one of the foremost leaders of the 
 New York bar. He did not receive a college education. At 
 the age of fourteen he began the study of law. He was admitted to 
 
432 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 the Supreme Court bar in 1827 at Albany and then went to Utica to 
 practice. After a short period of professional life in Utica he removed 
 to New York City. There he quickly established himself as one of 
 the prominent lawyers. His practice in commercial cases became one 
 of the largest in the city, and he was also very conspicuous as an 
 advocate. Among the noted suits he was engaged in were the Rose 
 will case, involving the principles of resulting trusts ; the Schuyler 
 over-issue of stock case, in which the officer of a railway company had 
 forged stock certificates and negotiated them, and out of which several 
 hundred suits arose, Mr. Noyes having charge of all the litigations 
 in behalf of the railway ; and the Huntington case, where a Wall 
 street broker, tried for forgery, set up the plea of insanity — a plea 
 which was made of no avail by Mr. Noyes' masterly analysis of moral 
 insanity, the accused being convicted despite the very able conduct. of 
 the defence by James T. Brady. 
 
 In 1857 he was chosen by the legislature as one of three com- 
 missioners to codify the laws of New York, David Dudley Field and 
 Alexander Bradford being his associates. Although the code they 
 drafted was never adopted, that part of it which Mr. Noyes prepared 
 has been very highly commended. In 1857 he was a candidate for 
 attorney-general of the state, but was defeated. He was a delegate to 
 the peace conference at Washington. 
 
 He collected a remarkable library of legal and other works, which 
 he bequeathed to Hamilton College. His income from practice is said 
 to have been as high as $100,000 a year during the latter portion of his 
 life. He was noted for his generosity and courteous bearing, and his 
 honesty and integrity were never questioned by the bench or bar. At 
 a bar meeting held after his death Charles O'Conor said, "William 
 Curtis Noyes honored the names of Christian and gentleman, and his 
 decease is a loss not only to his profession, but to the country. " 
 
 OXON, B. DAVIS (born in Poughkeepsie, New York, in 1788 ; 
 killed on the railroad at Syracuse, New York, May 13, 1869), 
 received a common school and academic education, studied 
 law under the direction of Philo Ruggles, and was admitted 
 to the bar in 1809. He then engaged in practice at. Marcellus, Onon- 
 daga county. For a number of years his business was confined to jus- 
 tices' courts. In 1829 he removed to Onondaga Hill, then the county- 
 seat, and eleven years later to Syracuse, where he formed an association 
 with Elias W. Leavenworth and continued to practice until his death, 
 becoming one of the most eminent members of the state bar. 
 
 He was specially distinguished in land suits involving matters 
 appertaining to the military tract, and he also had a high reputation 
 for his familiarity with questions of abstract law. He was frequently 
 employed in important criminal suits— notably the case of Wilbur, tried 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 433 
 
 in Madison county for murder ; the Riley case at Batavia, in which he 
 was counsel for the people ; that of Marsh vs. Hutchinson ; that of 
 Randall at Ballston Spa, in which John Van Buren was his associate- 
 counsel and John K. Porter and Samuel Stevens appeared on the other 
 side ; and the very celebrated case of Hubbard vs. Briggs, tried at the 
 Wayne circuit in 1844 and afterward six or seven times at circuit and 
 on appeal in the Supreme Court and Court of Appeals, which for 
 twenty years occupied the most distinguished lawyers of the state. 
 
 Honorable C. B. Sedgwick, in a memorial address on Mr. Noxon, 
 speaking of his abilities as a nisi prius lawyer, said : 
 
 In knowledge of this branch of the law, in careful preparation, in the acumen 
 necessary to mark every nice distinction, in the skill to detect and expose fraud and 
 perjury, in boldness, tact, pertinacity in his hard logic for the court, and his skillful 
 appeals to juries, he was in the front rank of his profession. 
 
 OXON, JAMES (born in Onondaga Hill, New York, May 17, 
 1818 ; died in Syracuse, New York, January 6, 1881), was a 
 son of the preceding. On his mother's side, who was a Van 
 Kleeck, he was descended from an old Knickerbocker family 
 of Dutchess county. He prepared for college at Homer Academy, and 
 after a brief attendance at Hamilton College entered Union, from 
 which he was graduated in 1838. He read law in his father's office, 
 and afterward took the course at the Yale Law School, being admitted 
 to the bar in New York in 1842. Locating at Syracuse he first prac- 
 ticed with his father and then organized the law firm of Noxon & 
 Putnam. Later he was associated with Sidney T. Fairchild, of Caze- 
 novia, and later still with George D. Cowles. He was elected to the 
 state senate from Onondaga county in 1856 and again in 1858. In 
 1875 he was elected judge of the Supreme Court of the state for a term 
 of fourteen years, to succeed Judge Morgan. 
 
 YE, JAMES WARREN" (born in De Ruyter, Madison county, 
 New York, June 10, 1814 ; died in White Plains, New York, 
 December 25, 1876), attended Cortland Academy, at Homer, 
 New York, studied law at Troy, and engaged in practice in 
 Madison county, where he soon won recognition as a lawyer and dem- 
 ocratic orator. He first served as district- attorney, and between 1840 
 and 1848 was county judge of Madison county. He ran for congress 
 on the free-soil ticket in 1848, but was defeated. During the next few 
 years he practiced at Syracuse, whither he had removed, and in 1857 
 came to New York City to accept the position of president of the 
 newly-created metropolitan board of police. His connection with this 
 office ceased in 1860, when he accompanied William H. Seward through 
 the west on a tour of speech-making in the interest of the republican 
 party. 
 
434 
 
 HISTORY OP THE BENCH AND BAR OF NEW YORK 
 
 . Appointed governor of the territory of Nevada by President Lin- 
 coln in 1861, he exerted a powerful influence on the Pacific slope in 
 favor of the federal government, and was largely instrumental in main- 
 taining the loyalty of that section of the country during the civil war. 
 He was also energetic in bringing about the admission of Nevada as a 
 state, and was one of the first United States senators from that com- 
 monwealth. He drew the short term, from 1865 to 1867, but in the lat- 
 ter year was re-elected by the legislature for a full term. 
 
 AKLEY, THOMAS J. (born ia Dutchess county, New York, 
 in 1783 ; died in New York City, May 11, 1857), was the son of 
 a farmer. He entered Yale in 1797 and graduated in 1801. 
 Immediately after leaving college he commenced the study 
 of the law in Poughkeepsie, being admitted to the bar in 1804. In 
 1813 and 1815 he was elected to congress. He resumed his practice 
 at Poughkeepsie in 1817. After serving in the legislature, he was 
 appointed, in 1821, attorney-general of the state. In 1827 he was 
 
 again elected to congress, but resigned 
 his seat the next year to become a judge 
 of the then newly - created Superior 
 Court of the City of New York. His first 
 associates on this bench were Samuel 
 Jones and Josiah Ogden Hoffman. 
 Jones, who had been chancellor, was 
 chosen chief -justice, and continued in 
 that capacity until 1847, when Judge 
 Oakley succeeded him, retaining the 
 position until his death. 
 
 Before he went on the bench he had 
 been employed as counsel in highly im- 
 portant cases. In the celebrated contro- 
 versy concerning the exclusive right of 
 navigating the waters of New York by 
 ~y r steam, granted to the inventor, Pulton, 
 and his patron, Chancellor Livingston 
 (reported in Wheaton's reports under the title of Gibbons vs. Ogden), 
 Mr. Oakley bore a leading part as the advocate of the rights of his 
 native state. Thomas Addis Emmet was his associate in this suit, 
 and Webster and Wirt were opposed to him. He also was conspicu- 
 ous in the notable litigations that sprang up in New York between the 
 landlords of large tracts of land and their tenants— the well-known 
 "manor grants questidm." He distinguished himself greatly on the 
 bench. The opinions he delivered made the Superior Court a very high 
 authority on subjects of commercial law. 
 
 JA^S^. 
 
HISTORY OP THE BENCH AND BAR OF NEW YORK 435 
 
 HH 'CONOK, CHAELES (born in New York City, January 22, 
 jEjil 1804; died in Nantucket, Massachusetts, May 12, 1884), was 
 JtM for forty years the acknowledged leader of the New York 
 iiHH *^^ bar. He was descended from an old and distinguished fam- 
 ily living for generations in the Province of Connaught, Ireland. His 
 father emigrated to New York in 1801 and engaged in various literary 
 and journalistic enterprises. The son received almost no education. 
 He entered a lawyer's office at thirteen years of age, and began to care- 
 fully study Blackstone and Comyn's Digest. He used afterward to 
 say : " I comprehended Blackstone at that time as thoroughly as I do 
 now." In 1824, at the age of twenty, he was admitted as an attorney 
 of the Court of Common Pleas. By the rules existing at that time an 
 attorney was not permitted to make a motion or argue any matter ; 
 this could be done only by a counsellor, and no one could be a coun- 
 sellor unless he had practiced two years as an attorney and achieved 
 considerable reputation in the lower courts. In Mr. O'Conor's case a 
 very unusual exception was made. On account of his remarkable abili- 
 ties he was admitted as a counsellor after practicing only three months 
 as an attorney. In 1827 he was admitted to practice in the Supreme 
 Court and the Court of Chancery as attorney, solicitor, and counsellor, 
 which also was an exceptional proceeding, for the rules required prac- 
 tice as attorney and solicitor prior to admission as counsellor. 
 
 In the same year he succeeded in a cause that gave him much cele- 
 brity among the catholic population of the city. At the annual trus- 
 tees' election of the catholic church in Barclay street there had been 
 an exciting contest in which the prevailing party had obtained a ma- 
 jority of only two votes. Upon examination of the register of names 
 of those who had participated in the election it was found that two 
 votes had been fraudulently deposited in the names of qualified per- 
 sons who had recently died. The defeated faction engaged the services 
 of Dudley Selden, a lawyer of considerable prominence, and Thomas 
 Addis Emmet, the most distinguished advocate of the day, who made 
 application to the Supreme Court for a writ of quo warranto to set 
 aside the election. The other side retained Mr. O'Conor. He took the 
 ground that it was incumbent on his opponents to show not only that 
 two illegal ballots had been cast, but that they were cast for the pre- 
 vailing candidates, and would, if rejected, put those candidates in the 
 minority. This view was taken by the court and the application was de- 
 nied. Another case, about the same time, in which he procured the setting 
 aside of the election of an alderman, gave him a more general reputa- 
 tion, as it displayed to a highly-interested auditory his peculiar skill 
 in eliciting facts and his trenchant mode of conducting a controversy. 
 He also successfully conducted before the county court— then composed 
 of the first and associate judges of the Common Pleas and the alder- 
 men of the city— a notable suit for the removal of a clerk of the jus- 
 tices' court for improper behavior. 
 
436 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 But although he gradually acquired a considerable practice in 
 minor litigations, it was fully twenty years before he began to be 
 retained in particularly weighty matters. The first really great case 
 committed to him was the Lispenard will suit. By skillful examina- 
 tion of witnesses he succeeded in establishing that the testatrix, Alice 
 Lispenard, had not sufficient mental capacity to make a valid disposi- 
 tion of her real estate. In the Slave Jack case and the Lemmon slave 
 case he was counsel for the slaveholders. In the celebrated Forrest 
 divorce case he manifested an ability, zeal, and perseverance rarely 
 equalled. After a litigation of nineteen years he obtained and col- 
 lected for Mrs. Forrest a judgment of some $64,000.' Among the other 
 noted suits in which he was chief counsel were the Parish will case and 
 the Jumel suit. 
 
 He was one of the counsel opposed to the Tweed ring, and it was 
 largely through his efforts that that corrupt combination was broken 
 up. In 1877 he was counsel for Mr. Tilden before the electoral com- 
 mission when the Florida returns were argued. 
 
 James C. Carter has said of him : 
 
 I believe it would be the deliberate judgment of those who have enjoyed a close 
 acquaintance with Mr. O'Conor and have frequently witnessed his various powers in 
 their full activity, and observed the prodigious extent of his acquirements, that he 
 was, all things considered, the profoundest and best-equipped lawyer that has ever 
 appeared at this bar, and that he would not suffer in a comparison with the great 
 lawyers of any nation or any time. 
 
 Throughout life he was a democrat of the extreme school, and 
 during the war he was not identified with the cordial supporters of the 
 government. He became counsel for Jefferson Davis when the indictmeht 
 for treason was brought against the southern leader. In 1872 he was 
 the presidential candidate of that branch of the democratic party which 
 refused to accept the nomination of Greeley, but he did not carry a 
 single state. During his last years he lived at Nantucket, Massachu- 
 setts. In his will he left a large sum of money to the New York Law 
 Institute Library and also about one hundred volumes of records of his 
 own cases. The reports of litigations in which he was engaged are dis- 
 tributed over more than two hundred and fifty official volumes, and, 
 considering the importance of many of these litigations, the significant 
 questions they have settled, and the vast interests they have involved, 
 it cannot be doubted that his place in the annals of the bar and the 
 jurisprudence of New York is clearly at the head of practicing 
 lawyers. 
 
 The only political office he held in all his career was that of United 
 States district-attorney for the southern district of New York during a 
 portion of President Pierce's administration. 
 
 1 See p. 304 of this volume. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 437 
 
 |GDEN, DAVID (born in Newark, New Jersey, about 1707 ; 
 died in Whitestone, New York, in June, 1800), can hardly 
 be claimed as a New York lawyer, although he tried many 
 famous cases in New York City. He was the leading prac- 
 titioner of the New Jersey bar of his day, and was one of the great 
 lawyers whose fame extended throughout the colonies. He was gradu- 
 ated from Yale College in 1728 ; studied law in Newark, New Jersey ; 
 was successively a member of the New Jersey provincial council, a 
 justice of the Superior Court and a justice of the Supreme Court. He 
 was a loyalist during the Revolution, and left this country to take up 
 his abode in England. In 1789 he returned, residing afterward at 
 Whitestone, New York. 
 
 CDEN, THOMAS LUDLOW (born in Morristown, New Jersey, 
 December 12, 1773 ; died in New York City, December 17, 
 1844), was the son of Abraham Ogden, a well-known lawyer 
 of Morristown, New Jersey, and a grandson of David Ogden, 
 noticed above. He was graduated from Columbia College, studied law 
 with his father and with Richard Harison, and was admitted to the 
 bar in New York City in 1796. For some time he was associated in 
 practice with Alexander Hamilton, often handling the important cases 
 of that great statesman when the latter was unable to be present. 
 
 He gained wide recognition for great legal abilities, and was in 
 the enjoyment of one of the largest corporation practices, if not the 
 largest, in the City of New York. Among his clients was the Holland 
 Land Company, a notable corporation of those days, owning an im- 
 mense tract of 3,000,000 acres in western New York. Many of the 
 well-known institutions of the City of New York enjoyed the advant- 
 age of Mr. Ogden's services, professional or otherwise. For thirty -five 
 years he was clerk and a vestryman of Trinity church. He was a trus- 
 tee of Columbia College from 1817 until his death, and he was one of 
 the founders and vice-president of the society for promoting religion 
 and learning in the State of New York, an organization connected with 
 the protestant episcopal church. He was one of the original trustees 
 of the General Theological Seminary, was sole trustee of Sackett's 
 Harbor, and was a trustee of the lands of the Indian reservation. 
 
 'GORMAN, RICHARD (born in Dublin, Ireland, in 1820 ; 
 died in New 7ork City, February 28, 1895), was the son of a 
 wealthy merchant of Dublin, graduated from Trinity College 
 and began the practice of law in his native city. One of 
 the founders of the Young Ireland party of 1848, he soon became 
 entangled in its troubles and was finally indicted for high treason with 
 John Mitchell and Thomas Francis Meagher. He disguised himself 
 as a traveller, and after spending some time on the continent came to 
 
438 HISTORY OF THE BENCH AND BAE OF NEW YORK 
 
 America, settling in Saint Louis. Removing to New York City, he 
 practiced law nntil 1865, when he was appointed corporation counsel, 
 serving two terms in that office. In 1870 he was a commissioner of im- 
 migration and in 1883 he was elected a judge of the Superior Court of 
 the City of New York. He retired in 1890, having reached the age of 
 seventy years. 
 
 fflLIN, ABRAM BALDWIN (born in Shaftesbury, Vermont, in 
 I 1808 ; died in the City of Washington, July 7, 1879), was 
 1 graduated from Williams College in 1835, and studied law at 
 Troy, New York, where he was admitted to the bar. Between 
 1838 and 1841 he held the office of recorder of Troy. He was a repub- 
 lican, and as such was elected to congress, serving three consecutive 
 terms, from 1857 to 1863. He was appointed a justice of the Supreme 
 Court of the District of Columbia in 1863, and remained upon that bench 
 until his death. 
 
 "SBORN, AUSTIN MELVIN (born in Windham, Greene coun- 
 ty, New York, December 2, 1835 ; died in October, 1886), was 
 the son of Henry Osborn and Sarah Loomis. He received a 
 classical education under private tuition, and at the age of 
 seventeen entered upon the study of law at Windham in the office of 
 Danforth R. Olney. In 1854 he removed with Mr. Olney to Catskill, 
 the county seat of Greene county, and upon admission to the bar 
 formed at once a partnership with his preceptor, which continued for 
 several years. Afterward he practiced alone. In 1865 he was elected 
 district-attorney of Greene county, serving the full term. In 1 870 he 
 was appointed county judge and surrogate. Governor Tilden in 1875 
 appointed him a justice of the Supreme Court of the state in place of 
 Judge Theodore Miller, who had been elevated to the Court of Appeals 
 bench. In the ensuing fall he was nominated and elected to the Su- 
 preme Court for the full term of fourteen years. 
 
 As a practitioner Judge Osborn was engaged in nearly every civil 
 case of importance in Greene county. His career on the bench while 
 his health remained was marked by " courteous and dignified manners, 
 unquestionable uprightness and fairness, and a remarkable kindness 
 and coasiderateness." ' His death was premature, at the age of fifty- 
 one years, resulting from an incurable ailment which for a considerable 
 period had incapacitated him for the labors of the bench. 
 
 ADDOCK, FRANKLIN A. (born in Glens Falls, New York, 
 January 30, 1827 ; died in New York City, January 22, 1890), 
 was the son of Ira A. Paddock, a successful lawyer, of New 
 England ancestry, and a brother of United States Senator 
 Paddock of Nebraska. He was graduated from Union College with 
 
 1 The Green Bag, Vol. xxiii., p. 362. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 439 
 
 honors in 1847, at the age of twenty, being the youngest in his class. 
 He came to New York City and studied law with Honorable James W. 
 White, and after his admission to the bar practiced continuously and 
 successfully in the metropolis, acquiring a large corporation business. 
 The law firm of which he was the head, Paddock & Cannon, had been 
 in existence for more than a quarter of a century at the time of his 
 death. "While he was not distinguished," says Mr. William P. 
 Chambers, "by shining power of eloquence as an advocate, he was 
 capable of clear and effective presentation of cases at nisi prius ; and 
 before the court in banc he came with all needful learning and logical 
 power." He was a student of French literature, wrote considerable 
 along historical and biographical lines, and was much interested in 
 political reform. As a young man he was an active political speaker. 
 
 AIGE, ALONZO CHRISTOPHER (born in Schaghticoke, 
 Rensselaer county, New York, July 31, 1797 ; died in Sche- 
 nectady, New York, March 31, 1868), after being graduated 
 from Williams College, in 1812, began to prepare for the 
 ministry, but presently abandoned theology for the law. He prose- 
 cuted his legal studies at Schenectady, was there admitted to the bar in 
 1819, and at once commenced to practice. He became somewhat act- 
 ive in public life. For four successive terms, from 1826, he was a 
 member of the assembly. 
 
 From 1828 to 1846 (when the court ceased to exist), he was the 
 reporter of the Court of Chancery, and compiled some eleven volumes 
 of " Reports of Casea*in the Court of Chancery " (New York, 1830-^8), 
 of which four volumes were revised and annotated by him at a later 
 period (1856-57). From 1837 to 1842 he was a member of the state 
 senate. Elected to the Supreme Court in 1847, he served four years, 
 subsequently sitting upon the same bench for another two years upon 
 his election to fill a vacancy in 1855. His opinions are considered able. 
 He was an active member of the constitutional convention of 1867. 
 
 1AINE, ELIJAH (born in Williamstown, Yermont, April 10, 
 1796 ; died in New York City, October 6, 1853), was the son 
 of Honorable Elijah Paine, the Vermont jurist and United 
 States senator. Having been graduated from Harvard 
 College in 1814, he prosecuted his law studies at Litchfield, Connec- 
 ticut, and was presently engaged in the compilation of law reports. 
 Becoming a partner of Henry Wheaton, he assisted in the preparation 
 of -the twelve volumes of the latter' s "Reports of the United States 
 Supreme Court from 1816 till 1827." He is the author of Paine's 
 " United States Circuit Reports " (New York, 1827), and issued two 
 
440 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 volumes of " Practice in Civil Actions and Proceedings in the State of 
 New York " (1830), in conjunction with the well-known John Duer. 
 
 For three years, from 1850 to 1853, he was a justice of the Supreme 
 Court of New York City, and as such distinguished himself by his 
 able decision in the famous Lemmon slave case. 
 
 ALMER, GEORGE WASHINGTON (born in Ripley, Chau- 
 tauqua county, New York, June 7, 1835 ; died in New York 
 City, January 2, 1887), was graduated from the Albany Law 
 School in 1857. He practiced his profession in New York 
 City between the periods of office-holding. He was assistant-clerk of 
 the United States senate ; held a position in the war department ; was 
 captain and provost-marshal of the 31st district of New York ; military 
 secretary to Governor Fenton ; commissary-general of ordnance of New 
 York with the rank of brigadier-general ; quartermaster ; appraiser of 
 customs of New York City, and later in charge of the law department 
 of the custom house. 
 
 ARKER, AMASA JUNIUS (born in Sharon, Litchfield county, 
 Connecticut, June 2, 1807 ; died in Albany, New York, 
 May 13, 1890), was the son of Reverend Daniel Parker, for 
 twenty years pastor of the congregational church at Sharon. 
 He was educated under the personal supervision of his father, who re- 
 moved with his family to the State of New York when the son was 
 nine years old. In 1823 he was appointed principal of Hudson 
 Academy, New York, and in 1825 presented himself for examination 
 at Union College for the degree of A. B., being graduated with the 
 class of that year. He resigned his principalship in 1827 to study law 
 with Honorable John W. Edmonds. He completed his legal studies in 
 the office of his uncle, Amasa Parker, at Delhi, Delaware county, New 
 York, was admitted to practice in October, 1828, and became a partner 
 of his uncle, the firm A. & A. J. Parker becoming one of the most 
 eminent and successful in the state. When he was called from the 
 bar to the bench he was familiar with the circuits in Delaware, Greene, 
 Ulster, Schoharie, Broome, Tioga and Tompkins counties, and it was 
 said of him that he had tried more cases in the circuit courts than any 
 lawyer of his age. In 1832 he was surrogate of Delaware county, and 
 the following year was appointed district-attorney, serving three years. 
 The same year he was elected to the state assembly without opposition. 
 He here displayed such scholarly attainments that he was chosen by 
 the legislature a member of the board of regents— the youngest mem- 
 ber at that time ever elected, — a post which he filled for ten years. In 
 the fall of 1836 he was elected to the 25th congress, serving from 1837 
 to 1839. He became judge of the 3d circuit in 1844 and removed to 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 441 
 
 Albany, where he resided until his death. He was on the bench 
 during the celebrated anti-rent trials, when at one time (in 1845) there 
 were two hundred and forty persons arrested and indicted and in cus- 
 tody awaiting trial at Delhi. He dispatched the entire business in 
 three weeks' time. In 1854 he was elected to the Supreme Court bench, 
 serving one term, one year of which he sat as a judge of the Court of 
 Appeals. 
 
 He received the democratic nomination for governor in 1856, run- 
 ning against John A. King, but, although he polled some 10,000 votes 
 more than the Buchanan electoral ticket, was defeated. He was again 
 defeated for governor as a candidate against Edwin D. Morgan in 1858. 
 In 1867 he was elected a member of the convention for the revision of 
 the state constitution. 
 
 Judge Parker was throughout his life devoted to educational 
 interests, being connected in important positions with various institu- 
 tions. With Judge Harris and Amos Dean he founded the Albany 
 Law School. The office of United States attorney for the southern dis- 
 trict of New York was offered him in 1859, but was declined. The 
 " Reports of the Decisions in Criminal Cases " (1858-77) were edited by 
 him, and he assisted in the compilation of the three volumes of " Re- 
 vised Statutes " (1859). He also prepared six volumes of law reports, 
 published at Albany, 1855-69. 
 
 ARSONS, GEORGE W. (born in Spencertown, Columbia 
 county, New York, August 24, 1 823 ; died in New York City, 
 January 12, 1887), was graduated from Williams College and 
 Yale Law School, and afterward read law in the office of 
 Theodore Sedgwick, in New York City. He was admitted to the bar 
 in 1843, at the age of twenty, and soon after went into partnership 
 with D. P. Barnard. He next became a member of the firm of Parsons 
 & Riggs, and then of Barney, Bunter & Parsons, and subsequently 
 became counsel to the firms of Riggs & Denman and Taylor & Ferris. 
 
 He served as counsel to over thirty insurance companies, and was 
 a recognized authority on insurance law. His opinion in the noted 
 case of Boone against the iEtna Insurance Company, which grew out of 
 the war, established a valuable precedent, and was sustained by the 
 United States Supreme Court. His reputation as an insurance lawyer 
 made him a prominent candidate for the nomination to the office of 
 associate-judge of the Court of Appeals in the republican convention 
 held at Saratoga in 1878. His opinions in all cases in which he was 
 referee were noted for soundness and ability. He was identified with 
 various corporations and public institutions, and was a member of the 
 syndicate that constructed the Nickel Plate Railroad, and its counsel. 
 He owned a beautiful country seat on the Hudson. 
 
442 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 AULDING, WILLIAM (born in Tarrytown, New York, in 
 1769 ; died there, February 11, 1854), was the son of William 
 Panlding, a member of the provincial congress of 1775 from 
 Suffolk county, New York, and nephew. of the famous John 
 Paulding, one of the captors of Major Andre during the Revolution. 
 Mr. Paulding was carefully educated, and studied law and practiced 
 his profession in New York City. He was elected to congress in 1811, 
 and was a brigadier-general of volunteers during the war of 1812. He 
 was a member of the constitutional convention of 1821. Between 1824 
 and 1826 he was mayor of the City of New York. 
 
 ECKHAM, RUFUS W. (born in Rensselaerville, Albany 
 county, New York, December 30, 1809 ; drowned at sea, 
 November 22, 1873), the father of Honorable Wheeler H. 
 Peckham and Justice Rufus W. Peckham, of the United 
 States Supreme Court, was graduated from Union College in his 
 eighteenth year. He read law with Bronson and Beardsley, of Utica, 
 New York, both of whom subsequently became chief- justices of the 
 Supreme Court of the state, and early acquired many of the profes- 
 sional characteristics of his distinguished preceptors. Upon attaining 
 his majority he was admitted to the bar, and going to Albany formed 
 a partnership with his elder brother, George W. Peckham. The new 
 firm was soon doing a large business, being represented in almost all 
 the leading cases of the day. In 1838 Mr. Peckham was appointed, 
 by Governor Marcy, district-attorney ' for the city and county of 
 Albany, serving until 1841. He was a candidate before the state legis- 
 lature in 1845 for appointment as attorney-general, but failed by a 
 single vote after a sharp contest. He represented his district in the 
 33d congress, during the administration of Pierce. He refused in 
 congress to be bound by party prejudices against convictions of duty, 
 and opposed the passage of the Nebraska biil. At the expiration 
 of his congressional term he resumed his practice in Albany in asso- 
 ciation with Lyman Tremain. In th'e fall of 1859 he was elected a 
 justice of the Supreme Court, and he was chosen for a second term 
 without opposition. While still on the Supreme Bench he was ap- 
 pointed (1870) a judge of the Court of Appeals. 
 
 In November, 1873, Judge Peckham with his wife sailed for Europe 
 in the steamer Ville du Havre. On the 22d of the month the steamer 
 collided with the British ship Luck Earn and went down in the dark- 
 ness of night. Judge Peckham and his wife were among the two 
 hundred and twenty-six who perished. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 443 
 
 EET, WILLIAM (born at No. 165 William street, New 
 York City, December 4, 1822 ; died in New York City, June 
 17, 1895), was the son of Frederick Tomlinson Peet, of Brook- 
 lyn, New York, and Elizabeth Lockwood, both born in 
 Bridgeport, Connecticut ; and was in the eighth generation in lineal 
 descent from John Peet, of Seven Oaks or Duffleld Parish, England, 
 
444 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 who sailed from London in 1635 with his sons, John and Benjamin, and 
 settled in Stratford, Connecticut, the following year. 1 
 
 Mr. Peet was educated in Brooklyn at the Eames and Putnam 
 English and Classical Hall, and at other schools until 1839, when he 
 entered as clerk his father's store, in the wholesale dry-goods busi- 
 ness, in New York City. In 1843, in his twenty- first year, he left the 
 store and commenced studying under tutor Bull of Yale College. He 
 was graduated from Yale in 1847. During his senior year, having 
 attended the class in the Yale Law School, while keeping up the reci- 
 tations and lectures of the course in college, he was graduated from 
 the Yale Law School in 1848. He removed to Utica, New York, and 
 entered the law office of Honorable Charles H. Doolittle, afterward 
 judge of the New York Supreme Court, and was admitted to the bar 
 at Syracuse, in November, 1848. He opened offices in New York City, 
 April 19, 1849. In 1852, under the firm name of Peet & Nichols, he 
 associated with himself Charles A. Nichols, this association continu- 
 ing from 1852 to 1857. At the latter date Mr. Livingston K. Miller 
 entered into the partnership, under the style of Miller, Peet & Nichols. 
 Mr. Nichols removed to Providence, Khode Island, in 1866, and the 
 firm subsequently became Miller, Peet & Opdyke. After Mr. Miller's 
 death, in 1876, a partnership was formed, with Benjamin H. Bristow, 
 Henry L. Burnett, William S. Opdyke and David Miller, under the firm 
 style of Bristow, Burnett, Peet & Opdyde. The firm was subsequently 
 reorganized as Bristow, Peet & Opdyke, so continuing until Mr. Peet's 
 death, when the firm of Bristow, Opdyke & Willcox was formed. 
 
 During the civil war Mr. Peet was commissioner for drafting 
 soldiers in Brooklyn. He was successful in the practice of law and 
 was the author of some fugitive newspaper articles, verses and political 
 sketches, published over the signature of " W. B. H." 
 
 ^ ENDLETON, NATHANIEL (born in Culpepper county, Vir- 
 ginia, in 1756 ; died in New York City, October 20, 1821), 
 distinguished himself at the battle of Eutaw Springs in the 
 Revolution. He entered the patriot army at the age of nine- 
 teen, and rose to the rank of major on the staff of General Greene. 
 Studying law at the close of the war, he located in Georgia, and soon 
 
 i The line of descent is as follows: John Peet 1 , Captain John Nichols; William Peet », born in Stratford, 
 
 married in England, Sarah, daughter of Richard Osborn; now Trumbull, Connecticut, June 1, 1763, married, 
 
 Benjamin Peet 2 , of Stratford, Connecticut, born in December, 25, 1785, Jemina, widow of Edmund Darrow 
 
 England, married Phebe, daughter of Richard Butler ; and danghterof Zachariah Tomlinson andEmmaLewis; 
 
 Benjamin Peet 3 , born in Stratford, Connecticut, August Frederick Tomlinson Peet 7 , of Brooklyn, New York, 
 
 31, 1665, married Priscilla, daughter of Thomas Fair- born in Bridgeport, Connecticut, December 21, 1799, 
 
 child and Katharine Craig ; Thomas Peet *, born in married, March 12, 1822, Elizabeth Lockwood, daughter 
 
 Stratford, Connecticut, July 15, 1098, married, January of Lambert Lockwood and Elizabeth Roe, and grand- 
 
 7, 1724, Phebe, daughter of Abraham Nichols and daughter of Reverend Doctor Azel Roe, of Woodbridge, 
 
 Rachel Kellogg; William Peet 5 , born in^tratford, Con- New Jersey, and Rebecca Foote, of Guilford, Connec- 
 
 necticut, January 29, 1743, married Beulah, daughter of ticut ; William Peet e , of New York City. 
 
HISTOKY OF THE BENCH AND BAR OF NEW YORK 445 
 
 gained distinction in his profession. He became a United States dis- 
 trict judge, and his name was considered by Washington for the office 
 of secretary of state. He was a member of the convention of 1787 
 which framed the United States constitution. Not being in the con- 
 vention on the final day, his name does not appear among the signers. 
 Coming to New York City in 1796, Judge Pendleton soon commanded 
 recognition of his legal talents, and was accorded a standing among 
 the leaders of the New York bar. Later he became a judge of Dutchess 
 county, where he had a residence. Although Alexander Hamilton had 
 opposed his appointment to Washington's cabinet, under the convic- 
 tion that he was " somewhat tainted with the prejudices of Mr. Jeffer- 
 son and Mr. Madison," they became very friendly after Judge Pendle- 
 ton's removal to New York City. The latter was second to Hamilton 
 in his fatal duel with Aaron Burr. 
 
 HELPS, BENJAMIN KINSMORE (born in Haverhill, Massa- 
 chusetts, September 16, 1832 ; died in New York City, De- 
 cember 30, 1880), was the son of Dudley Phelps, a congre- 
 gational minister. He was graduated from Yale in the class 
 of 1853, conspicuous for the subsequent prominence attained by many 
 of its members, including Andrew D. White, ex- Senator Randall L. 
 Gibson, Wayne McVeagh and Edmund C. Stedman. He studied law 
 in New Hampshire with Benjamin Farley, and later with Townsend, 
 Dyett & Raymond, of New York City. He was admitted to the bar 
 in Poughkeepsie in 1855, and the year following, in partnership with 
 Sherman W. Knevals, commenced practice in New York City. The 
 firm was reorganized in 1872 by the admission of General Arthur, and 
 was subsequently known as Arthur, Phelps, Knevals & Ransom. In 
 1866 he was appointed an assistant in the United States district- 
 attorney's office, having charge of seizure suits and actions brought 
 against the collector of the port for the recovery of duties paid under 
 protest. He held the same position under Edwards Pierrepont and, 
 for a time, under Noah Davis. He returned to private practice in 1870, 
 taking an active part in politics as a republican. In 1877 he was chair- 
 man of the republican central committee, and in 1872 received the 
 nomination of his party for the office of district-attorney of the city. 
 In 1875 he was re-elected to the office, and again in 1878, each time by 
 increasing majorities. 
 
 During his term of office he conducted some of the most celebrated 
 cases in the criminal annals of the city. He secured the conviction of 
 the negroes, Weston, Ellis and Thompson, for the murder of Abram 
 Weissberg, a pedlar, and they were hanged ; also of Dolan, who mur- 
 dered Noe, and of, Sharkey, the murderer who after sentence escaped 
 from the Tombs through the connivance of Maggie Jordan. He con- 
 
446 
 
 HISTORY OF THE BENCH AND BAR OF NJEW YORK 
 
 ducted the trial of Cox, the murderer of Mrs. Hull, and was successful 
 in sending the Reverend Mr. Cowley to the penitentiary for inhuman 
 treatment of Louis Victor, an inmate of the " Shepherd's fold." He 
 died while still district-attorney, at the early age of forty -eight. 
 
 HILIPSE, FREDERICK (born in New York City in 1690; died 
 there, in 1751), was a grandson of the founder of the family 
 of the same name, the rich merchant who became the first 
 lord of the manor of Philipsborough, in Westchester county, 
 New York. The grandson was not a lawyer, although he had been 
 carefully educated in Europe. Judicial positions were frequently con- 
 ferred on laymen of wealth and social standing at that period — real 
 
 lawyers, or such by 
 training, being scarce 
 in the province. As 
 lord of the manor, 
 Philipse enjoyed the 
 judicial prerogatives of 
 a feudal proprietor. 
 Upon the bench of the 
 court leet and that of 
 the court baron, he ad- 
 judicated the causes 
 arising within the juris- 
 diction of his manor. 
 Even cases of life and 
 death could come be- 
 fore him. But it was 
 courts of the Province of New 
 
 PHILIPSE MANOE-HOU9E 
 
 
 
 his connection with the more public 
 York which justifies a brief notice here. 
 
 He was appointed second judge of the Supreme Court on June 24, 
 173.1, and second judge of the same court on August 21, 1733. His 
 especial judicial distinction, not indeed very much to his credit, was 
 his connection with the famous cases of Cosby vs. Van Dam, and the 
 prosecution of Peter Zenger for libel. ^~ 7U> 
 
 In the first of these he was named by /^J&eTjy/^JtoAjrt — ) 
 
 Governor Cosby, with Chief - Justice ^f-^S /] (\ 
 Lewis, Morris and James De Lancey, ' £; v__^' (J U 
 as a court of exchequer to try the governor's case. Philipse and De 
 Lancey were the mere creatures of Cosby in this matter, and rendered 
 such a decision as he desired, Morris and the counsel for Van Dam- 
 Alexander and Smith— being the heroes of the case. At the Zenger 
 trial Philipse and De Lancey revealed themselves in the same unfa- 
 vorable light. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 447 
 
 IERREPONT, EDWARDS (born in North Haven, Connec- 
 ticut, November 4, 1813 ; died in New York City, March 6, 
 1892), was descended from an old and eminent New England 
 family. 1 He went through the Hopkins Grammar School, at 
 New Haven, and was graduated with honors at Yale. After complet- 
 ing a legal course at the New Haven Law School, under James Daggett 
 and Hitchcock, he went to Ohio (1840), where he practiced successfully 
 for six years in partnership with Honorable Phineas B. Wilcox. Re- 
 turning to the east he established himself in New York City, and 
 steadily made his way to the front ranks of the profession, being 
 especially conspicuous for his logical qualities and his skill in cross- 
 examining witnesses. In 1857 he was elected a judge of the Superior 
 Court to fill the vacancy caused by the death of Chief- Justice Oakley. 
 He resigned his position on the bench in October, 1860, and resumed 
 his practice. 
 
 A staunch democrat before the war, Judge Pierrepont promptly 
 announced his unqualified devotion to the government in its time of 
 trial, and throughout the war he was one of its 
 most active and influential supporters in New N o 
 York. He was one of the speakers at the Union 
 square meeting of loyal democrats, April 20, 1861, 
 and he co-operated with Hamilton Fish, A. T. 
 Stewart, and other prominent New Yorkers in or- 
 ganizing the union defence committee. With 
 General Dix he was appointed in 1 862 a commis- 
 sioner to try the prisoners of state confined in the 
 
 PIERREPONT arms. 
 
 government forts and prisons. He was a hearty 
 advocate of Lincoln's re-election in 1864. In 1867 he was employed by 
 the government to take charge of the prosecution of John H. Surratt, 
 indicted as an accomplice in the assassination of President Lincoln. 
 He served in the same year as a delegate to the New York constitu- 
 tional convention, being a member of its judiciary committee. In 
 the campaigns of 1868 and 1872 he supported General Grant's candi- 
 dacy. In 1869 he was appointed United States district-attorney in 
 New York. Later he was very conspicuous in the work of the com- 
 mittee of seventy against the Tweed ring, resigning the office of district- 
 attorney to devote himself more actively to this cause. 
 
 He became attorney -general in President Grant's cabinet in 1875. 
 In this position he personally conducted various important cases in 
 behalf of the government — notably those of the Union Pacific Rail- 
 road and the Arkansas Hot Springs. In May, 1876, he was appointed 
 
 1 Its American ancestor, John Pierrepont, was a 
 younger eon of the noble Pierrepont family of Not- 
 tingham, England, which traced its lineage to Robert de 
 Pierrepont, a Norman knight who accompanied William 
 the Conqueror. John Pierrepont came to America in 
 H>50, settled in Roxbury, Massachusetts, and purchased 
 
 there a tract of three hundred acres. His son, 
 Reverend James Pierrepont, one of the chief founders 
 of Yale College, was the father of Sarah Edwards, the 
 wife of Jonathan Edwards. Reverend James Pierre- 
 pont was the great-great-grandfather of Edwards Pierre, 
 pont, 
 
448 HISTORY OF THE BENCH AND BAK OP NEW YORK 
 
 envoy extraordinary and minister plenipotentiary to the court of 
 Saint James. (He had previously, in 1873, declined an offer of the 
 Kussian mission.) As minister to England he displayed great tact in 
 delicate negotiations concerning the extradition of criminals, and he 
 concluded with Earl Derby the trade-mark treaty. 
 
 Upon his return to the United States, in 1878, he again engaged in 
 the practice of the law. He was associated with the most eminent 
 lawyers of the city in many great suits. Up to the time of his retire- 
 ment from the bar he was connected with the law firm of Stanley, 
 Brown & Clark. 
 
 He was one of the founders of the Association of the Bar of the 
 City of New York, delivering a strong address at the first bar meeting, 
 February 1,1870. 
 
 LATT, JONAS (born in Poughkeepsie, New York, June 30, 
 1769 ; died in Peru, Clinton county, New York, February 22, 
 1834), was a son . of Zephaniah Piatt (q. v.). Having been 
 admitted to the bar, he commenced the practice of the law at 
 Whitesboro. He held the offices of assemblyman (1796), congressman 
 (1796-1801), state senator (1810-13), member of the council (1813), and 
 Supreme Court justice (1814-23), and after leaving the bench practiced 
 law first in Utica and then in the City of New York. In 1810 he ran 
 for governor of the state, but was defeated. 
 
 LATT, ZEPHANIAH (born in Dutchess county, New York, 
 in 1740 ; died in Plattsburg, New York, September 12, 1807), 
 was one of the New York members of the continental con- 
 gress (1784-86), one of the early projectors of the Erie canal, 
 a judge of the state Circuit Court for a long period, and the founder of 
 Plattsburg. He was a college graduate and a good lawyer. 
 
 LATT, LEWIS CANFIELD (born in North Castle, West- 
 chester county, New York, March 13, 1818), was the son 
 of Benoni and Elizabeth Piatt, both descended from old and 
 respected families identified with the early history of West- 
 chester county. Beared upon a farm, young Lewis attended the academy 
 at Bedford village and later entered Union College, graduating in the 
 class of 1841. He read law with Samuel E. Lyon, of White Plains, and 
 was admitted to the bar. in that village in 1843. He at once opened an 
 office in White Plains, and soon took a position in the first rank of the 
 county bar. In 1846 he was elected supervisor of the town, and in 1847 
 surrogate of the County of Westchester, holding the office until 1855, 
 
HISTORY OF THE BENCH AND BAB OF NEW YORK 
 
 449 
 
 He was the first surrogate elected in the county, the office having been 
 previously an appointive position. During the last year of his term as 
 surrogate he was a candidate for county clerk on the fusion ticket, but, 
 the county being at the time a stronghold of " know-nothingism," he 
 was defeated. During the forty odd years he practiced law in White 
 Plains Mr. Piatt transacted a great volume of business, particularly in 
 
 /£ J°£*otK 
 
 matters connected with real estate and surrogate practice. Unflagging 
 in industry, he was every working day early and late in his office or in 
 the courts, continuing this close application up to the very day of his 
 last illness. When his son, afterward district-attorney, became of age, 
 he was made a partner, and the firm of L. 0. & W. P. Piatt ranked 
 among the highest at the bar. 
 
450 HISTORY OV THE BENCH AND BAR OF NEW YORK 
 
 In his political affiliations Mr. Piatt was in early life a whig. 
 Following the leaders of the old whig organization into the new 
 republican party, he was a republican on the issues of the civil war. 
 Disagreeing with " radical " policy after the war, he became a " liberal," 
 and supported Greeley for the presidency in 1872. Democratic and 
 liberal leaders urged upon him the nomination for congress, believing 
 he could redeem the district from the republicans, but he declined to 
 make the fight. He was ever afterward a thorough-going democrat. 
 For nine successive years from 1883 he was a member of the board of 
 supervisors, being for a number of years chairman of the judiciary 
 committee of that body. 
 
 Mr. Piatt's religious connections were with the presbyterian church, 
 of which he was a member and regular attendant. He was also one of 
 the oldest members of White Plains Lodge F. & A. M., having joined 
 May 15, 1859. 
 
 During his first term as surrogate Mr. Piatt married Miss Laura 
 Popham, of Scarsdale, Westchester county, who, with eight children, 
 five daughters and three sons, survived him. 
 
 OMEROY, JOHN NORTON (born in Rochester, New York, 
 April 12, 1828 ; died in San Francisco, California, February 
 15, 1885), was a graduate of Hamilton College in the class of 
 1847 and was admitted to the bar in 1851. He practiced with 
 success in Rochester for a number of years, and coming to New York 
 City in 1864 became a lecturer on law in the College of the City of 
 New York and dean of the legal faculty. From 1869 to 1878 he again 
 was an active practitioner at the bar of Rochester. In the latter year 
 he resumed the congenial work of legal education, accepting the chair 
 of law in the University of California, and he continued in that posi- 
 tion until his death. 
 
 Professor Pomeroy was one of the best legal scholars of his gen- 
 eration. His writings include "An Introduction to Municipal Law" 
 (1865), "An Introduction to the Constitutional Law of the United 
 States " (1868), " Remedies and Remedial Rights, According to the Re- 
 formed American Procedure" (1876), "A Treatise on the Specific Per- 
 formance of Contract " (1879), " A Treatise on Equity Jurisprudence " 
 (1883), and "A Treatise on Riparian Rights" (1884). He wrote con- 
 siderably for periodicals on legal and social science subjects, and pub- 
 lished new and annotated editions of Sedgwick's " Statutory and Con- 
 stitutional Law" and Abbott's "Criminal Law." 
 
 During the animated contest in the New York legislature over the 
 proposed civil code, a pamphlet written by Professor Pomeroy upon 
 the workings of a similar code in California was circulated by the Bar 
 Association and it proved an important factor in compassing the defeat 
 of the code. 
 
IIISTOEY OF THE BENCH AND BAK OF NEW YOKK 451 
 
 ORTER, JOHN K. (born in Waterford, Saratoga county, New 
 York, January 12,1819; died in Saratoga, April 11, 1892), was 
 the son of Dr. Elijah Porter, a native of Norwich, Connecticut, 
 who removed to Vermont and accumulated* a considerable 
 fortune. The son received a classical education, being graduated from 
 Union College in 183Y. He studied law in the office of Judge Nicholas 
 B. Doe at Saratoga, was admitted to the bar at the age of twenty-one, 
 and immediately afterward entered into partnership with Judge Doe. 
 He soon became one of the leading lawyers of that part of the state, 
 being associated in- nearly all the important cases arising in Saratoga 
 and the neighboring counties. He devoted himself strictly to his pro- 
 fession, and although as a young man he took some interest in politics, 
 — attending the whig national convention of 1844 as a delegate — he 
 refused all offers of political office. He served, however, in the state 
 constitutional convention of 1816, and, notwithstanding his youth, was 
 one of the prominent members of that famous body. 
 
 In 1848 he removed to Albany and formed an association with 
 Deodatus Wright, then recorder of the city. Soon afterward he joined 
 Nicholas Hill and Peter Cagger as junior partner in the firm of Hill, 
 Cagger & Porter. This firm, celebrated in the legal annals of the state, 
 was constantly occupied with suits of the greatest importance. Mr. 
 Porter for several years confined himself to the trial of cases at nisi 
 prius and elsewhere, and to the argument of appeals at general term, but 
 upon the death of Mr. Hill, in 1859, he succeeded him in the conduct 
 of the Court of Appeals cases. In conjunction with Charles O'Conor 
 he succeeded over William M. Evarts and ex- Judge Edmonds in the 
 Parish will case. In 1863, in association with William Curtis Noyes, 
 he successfully sustained the constitutionality of the legal tender act 
 of 1862. His argument in this suit is published in full in "Great 
 Speeches of Great Lawyers." He defended Horace Greeley in the libel 
 suit brought by De Witt C. Littlejohn, speaker of the assembly, sway- 
 ing the jury against an adverse charge by the judge. 
 
 In 1864 he was appointed to the bench of the Court of Appeals to 
 fill a vacancy, and at the ensuing election he was chosen for a full term. 
 During the four years of his service he delivered many judicial opin- 
 ions of great weight and authority. He resigned in 1868 and removed 
 to New York, where he organized the law firm of Porter, Lowrey, Soren 
 & Stone. 
 
 Judge Porter's professional career at the metropolitan bar was in 
 every way highly distinguished. Among the clients of his firm were _ 
 the Western Union Telegraph Company, the Central Pacific Company, ' 
 and the Gilbert Elevated Railway Company and its successor, the Met- 
 ropolitan Elevated Railway Company. He took the leading part in 
 the long controversy which led to the absorption of the Atlantic and 
 Pacific Telegraph Company by the Western Union. He was associated 
 with William M. Evarts as counsel for Henry Ward Beecher in the 
 
452 HISTORY OE THE BENCH AND BAR OE NEW YORK 
 
 Tilton suit. In 1877 he obtained decisions by the Court of Appeals 
 affirming the constitutionality of the rapid transit act of 1875. 
 
 His last professional appearance in the courts was as prosecutor of 
 Guiteau for the assassination of President Garfield. He was employed 
 by President Arthur and his cabinet in this capacity to assist District- 
 Attorney Corkhill. 
 
 OTTER, CLARKSON NOTT (born in Schenectady, New 
 York, April 25, 1824 ; died in New York City, January 23, 
 1882), was the eldest son of Bishop Alonzo Potter. He was 
 graduated from Union College in 1842, was for a time a 
 surveyor in Wisconsin, studied law and was admitted in that state, 
 and returned to New York in 1848. He rose to prominence and 
 frequently argued leading causes before the Supreme Court of the 
 United States. In 1869 he appeared before that court in connection 
 with the coin contract and legal tender cases, and his views were 
 sustained. In 1871 the Supreme Court, desiring to rehear the legal 
 tender question, directed a special argument and selected the attorney- 
 general to support and Mr. Potter to oppose the law. 
 
 The last ten years of his life Mr. Potter practiced exclusively before 
 the Court of Appeals and the United States courts. Entering politics 
 in 1868, he was elected to the 41st, 42d, 43d and 45th congresses. At 
 the time of his death he was president of the National Bar Association. 
 
 OTTER, PLATT (born in Galway, Saratoga county, New 
 York, April 6, 1800 ; died in Schenectady, New York, August 
 12, 1891), was graduated from Schenectady College in 1820, 
 afterward studied with Alonzo C. Paige, of Schenectady, and 
 was admitted to' the bar in 1824. He practiced law at Menorville until 
 1833, when he removed to Schenectady to form a partnership with his 
 former instructor, Mr. Paige. In 1839 he was elected district-attorney 
 of Schenectady county, holding the office six years. He was at the 
 same time master and examiner in chancery, being appointed in 1828, 
 and exercising the functions of these offices until the discontinuance of 
 the Court of Chancery, in 1848. In 1857 he was elected judge of the 
 Supreme Court for the 4th district, and again in 1865, without opposi- 
 tion, sitting during the latter term as judge of the Court of Appeals. 
 In 1870 he was appointed associate-justice of the general term for the 
 3d department. During the same year he caused the arrest of Henry 
 Ray, an assemblyman, for refusing to answer to a subpoena, and was 
 brought before the bar of the house accused of "high breach of 
 privilege." His defence— a complete vindication— was issued by the 
 bar in pamphlet form, and won congratulations from eminent jurists 
 throughout the country. He was also, in 1870, chosen president of the 
 state judicial convention in Rochester. 
 
HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 453 
 
 He published " Potter's Dwarries," a general treatise on the con- 
 struction of statutes, "Equity Jurisprudence," and "Potter on Cor- 
 porations" (2 vols., 1879). In 1886 he presented to the New York His- 
 torical Society six volumes of the " State Trials of England," at the 
 time of their issue valued at £600. 
 
 * ^VsLtZ. 
 
 f SLC>W~^ 
 
 EATT, CALVIN EDWARD (born January 23, 1828, in Prince- 
 ton, "Worcester county, Massachusetts ; died at his Buzzard 
 Bay home, Rochester, Massachusetts, August 4, 1896), was 
 a son of Edward Ayers Pratt and Mary Anne Stratton. His 
 grandfather on his father's side was Captain Joseph Pratt, of Shrews- 
 
454 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 .bury, Massachusetts, and on his mother's was Deacon Samuel Stratton, 
 of Princeton, Massachusetts, a soldier in the war of 1812. After 
 leaving the common schools of his native town he attended Wilbra- 
 ham Academy, and later the Manual Labor Academy at Worcester, 
 Massachusetts, where he fitted for college. Later he read law with 
 Honorable Henry Chapman, of Worcester, Massachusetts, and was ad- 
 mitted to the bar in May, 1852. He entered at once upon the practice 
 of law in Worcester, where he continued until 1859, when he came to 
 New York City. When the civil war broke out Mr. Pratt raised the 
 31st New York volunteers, and went to the front as colonel. Septem- 
 ber 15, 1862, he was appointed brigadier-general of volunteers. He 
 was engaged in the battles of Bull Run, West Point, Virginia, Gaines' 
 Mills (where he was severely wounded in the head), South Mountain, 
 Antietam and Fredericksburg, and in several skirmishes. 
 
 In 1865 he was made collector of internal revenue, and in 1870 he 
 was elected judge of the Supreme Court of New York state from the 2d 
 judicial district, which position he continued to hold until his death. 
 
 RATT, BENJAMIN (born in Cohasset, Massachusetts, March 
 13, 1710 ; died January .">, 1763), one of the colonial chief- 
 justices, was of humble birth and was bred to a mechanical 
 trade. Losing a limb at an early age, he devoted himself to 
 study, was graduated at Harvard in 1737 (being the lowest in his class), 
 and studied law in Boston with Robert Auchmuty, an eminent British 
 barrister, whose sister he married. He became one of the prominent 
 lawyers of Boston, noted for his learning and eloquence. November 
 11, 1761, he was commissioned chief-justice of New York by Colden, 
 who at that time was advocate-general of Massachusetts, and he took 
 office in January, 1762. He died while on a visit to England. 
 
 According to Judge Thomas Jones, Chief-Justice Pratt, during his 
 brief service on the New York supreme bench, was " insulted, abused 
 and lampooned through the artful insinuations and cunning, sly, 
 dark designs of the republican faction of which the two Smiths, senior 
 and junior, William Livingston, John Morin Scott, Robert R. Living- 
 ston, Peter Van Brugh Livingston, Philip Livingston and Thomas 
 Smith were the principal leaders. He was opposed in every judicial 
 act he did, plagued and harassed by the Smiths, Livingstons and 
 Scott, the then leading gentlemen of the bar." 
 
 flRUYN, JOHN VAN SCHAICK LANSING (born in Albany, 
 New York, June 22, 1811; died in Clifton Springs, New 
 York, November 21, 1877), was graduated at Albany Academy 
 in 1826, and after studying law under the direction of James 
 King was admitted to the bar (1832). As a young lawyer he attained 
 peculiar prominence, and the annals of the state bar afford few in- 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 455 
 
 stances of similar rapid advance. One of his first professional engage- 
 ments was as an attorney in the James will case, a very notable suit. 
 At the age of twenty-four he was counsel for the Mohawk & Hudson 
 Railroad, and one of its directors, and " in 1853, when the railroads be- 
 tween Albany and Buffalo were united, forming the present New York 
 Central, he conducted the proceedings and drew up the consolidation 
 agreement, in some respects the most important business instrument 
 that was ever executed in the State of New York. He was associated 
 in the Hudson river bridge case, finally arguing it alone, was the sole 
 trustee of the estate of Harmanus Bleecker, and was the financial 
 officer of the Sault Ste. Marie canal, which he carried through many 
 difficulties." ' Mr. Pruyn was one of the principal citizens of Albany, 
 and filled positions of high honor. As a capitol commissioner, he laid 
 the corner-stone of the new state capitol in 1869. For thirty-three 
 years he was regent of the State University, and for fifteen years its 
 chancellor. The collections of the State Museum of Natural History 
 and the State Library were largely enriched by his efforts. He was a 
 trustee of the state board of charities, the state survey and the Albany 
 Institute, a member of the association for the codification of the law of 
 nations, and was connected with historical and other societies. He was 
 elected a state senator in 1861, and served in congress from 1863 to 1869. 
 
 RUYN, EOBEET HEWSON (born in Albany, New York, 
 February 4, 1815 ; died there, February 26, 1882), a cousin of 
 the preceding, was graduated at Rutgers College in 1833, 
 and admitted to the bar in 1835 after studying with Abraham 
 Van Vechten. He held local and state offices ; was corporation counsel 
 of Albany, adjutant-general (1855), and member of the assembly from 
 1848 to 1850, and again in 1854, in which latter year he was speaker. 
 He was sent by President Lincoln in 1861 as minister to Japan, and in 
 that office he assumed responsibility for inaugurating naval operations 
 against the daimio of Chosu, which, with the ultimate co-operation of 
 Great Britain, France and Holland, had results of much importance 
 for the promotion of commercial intercourse; and altogether the 
 United States is greatly indebted to Minister Pruyn for the increasing 
 favor extended to American trade in Japan. Returning to this coun- 
 try he devoted himself chiefly to financial interests, being president of 
 the National Commercial Bank of Albany at the time of his death. 
 
 iUURSER, GEORGE H. (born in England in 1810 ; died in New 
 York City, June 21, 1889), came to this country at eighteen. 
 He studied law, and was admitted to the bar in New York 
 City while employed as a drug clerk. He was for forty years 
 a member of the Tammany Society, successively secretary and vice- 
 
 ' Appleton's " Cyclopaedia of American Biography." 
 
456 
 
 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 president of the fire department, in 1850 commissioner of taxes, and in 
 1856 corporation attorney. He framed the bill appointing the state 
 commission of immigration. In 1869, as attorney for the Mutual Life 
 Insurance Company, he defeated the conspiracy, involving a New 
 York judge, to throw the company into the hands of a receiver. He 
 was president of the Daily News Publishing Company at the time of 
 his death. 
 
 ADCLIFF, JACOB, was the eldest son of William RaoMiff, a 
 captain of militia at the be- 
 ginning of the Eevolution, 
 who rose to the rank of 
 
 brigadier-general. Jacob studied law, 
 
 and began practice at Poughkeepsie. 
 
 He was eminently successful, and 
 
 while-still a young man was raised to 
 
 the bench of the Supreme Court. 
 
 Thereupon he took up his residence 
 
 in New York City, but he eventually 
 
 resigned from the bench and resumed 
 
 the practice of law. In 1810 he was 
 
 appointed mayor, holding the position 
 
 one year ; and again in 1815, 1816 and 
 
 1817 he was •mayor of the city. The 
 
 population of New York reached 
 
 100,000 during his mayoralty. 
 
 Gould. 
 
 APALLO, CHARLES A. (born in New York City, September 
 15, 1823 ; died December 28, 1887), the eminent lawyer and 
 late associate-justice of the Court of Appeals of the State 
 of New York, was the son of Anthony Rapallo and Elizabeth 
 The latter was sister of Hannah F. Gould, the poetess, and 
 aunt through a brother and sister to Benjamin A. Gould, the noted 
 astronomer, and to Chief- Justice Fuller of the United States Supreme 
 Court. The father of the Gould family, Benjamin Gould, was engaged 
 in the battle of Lexington, was an officer in the continental army, and 
 was elected from Massachusetts to the first continental congress which 
 signed originally the declaration of independence. 
 
 The elder Rapallo, a native of Italy, near Genoa, coming to this 
 country early in life and settling in the City of New York, was a 
 superior linguist as well as lawyer, and in addition to his practice 
 often acted as a translator. He located in 1818 at 16 Vesey street, 
 thence, as his practice grew, successively on Beekman, Church and 
 
HISTOKY OJF THE BENCH AND BAR OF NEW YORK 
 
 457 
 
 Nassau streets, and in 1843 at No. 4 (now No. 11) Wall street. For a 
 number of years he and John Anthon had offices together. He per- 
 sonally directed the early education of his son, Charles, being his pre- 
 ceptor in classical studies and the modern languages, Italian, Spanish 
 and French, in which the youth spoke with the same fluency as in 
 English. 
 
 ' At the early age of fourteen years, by constant attendance at his 
 father's office and special tuition, his legal studies had become fairly 
 inaugurated. At the age of twenty-one, without having attended 
 
 CHAKLE6 A. RAPALLO. 
 
 school or college, he was admitted to the New York bar. Eemaining 
 for a short time in the office of Jonathan Miller, counsel for the Astor 
 estate, he in 1845, with Joseph Blunt, formed the partnership of Blunt 
 & Rapallo. The firm were the attorneys of the Mutual Life Insurance 
 Company during the first years of the organization of that company. 
 In 1848 he formed the principal professional association of his life, 
 with Horace Clark, at No. 65 Wall street. A high class of practice at 
 once came to the firm. Among the early and notable cases in which 
 Mr. Rapallo personally appeared were : Donnelly vs. Corbett (7 N. Y.), 
 
458 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 involving the question of the validity of an insolvent discharge ob- 
 tained in South Carolina as against a creditor who was a resident of ' 
 New York, but who had obtained judgment against his debtor in the 
 courts of South Carolina and there imprisoned him. Mr. Rapallo 
 carried the case to the Court of Appeals and secured a reversal of the 
 judgment of the Superior Court. In the case of the Josephine, run- 
 ning between New York and Monmouth county, New Jersey, attached 
 under warrant of state attachment law, Mr. Rapallo produced a reversal 
 of the judgment of general term on constitutional grounds. For the 
 British Commercial Life Insurance Company, he overthrew the action 
 of the commissioners of taxes and assessments, who had assessed the 
 company on $50,000 United States bonds and $50,000 Buffalo city 
 bonds, the United States bonds being held to be exempt. This was the 
 first case in which the point had been taken. Gillespie vs. Torrence 
 relating to commercial paper ; Hasbrouck vs. Hasbrouck, growing oat 
 of the administration of a will ; Hayes vs. Heyer, involving the position 
 of a special partner ; Hoxie vs. Allen, brought by Joseph Hoxie to re- 
 cover for services from a steamship line, are cases in which Mr. Rapallo 
 made the arguments in the highest court. 
 
 Mr. Rapallo, acting for his firm as attorney for Cornelius Yander- 
 bilt, made the arguments in the cases of Quimby vs. Yanderbilt and 
 Williams vs. Yanderbilt, actions brought to hold the commodore liable 
 for deliquencies of a co-operating company. He also argued for Mr. 
 Yanderbilt in the Court of Appeals, in connection with Charles 
 O'Conor, the case of the New York & New Haven Railroad Company 
 vs. Scuyler, growing out of the great Scuyler frauds, which occupied 
 the attention of the court for many years (34 N. Y. ). 
 
 In 1867, Mr. Clark retiring from practice, Judge Rapallo formed a 
 partnership with James C. Spencer, under the firm name of Rapallo & 
 Spencer. In the autumn of the same year the great Erie controversy 
 commenced, and during the early months of 1868 Mr. Rapallo was 
 engaged in some of the most complicated and extensive legal pro- 
 ceedings that have been known in the history of our courts. Mr. 
 Rapallo had the general direction of this litigation, although 
 several distinguished counsel were associated with him. His pro- 
 fessional life was occupied almost exclusively with business in the 
 civil courts, and though his practice was a varied one, he was em- 
 ployed mainly in matters relating to estates, trusts, corporations, 
 testamentary and commercial law, in all of which he gained an experi- 
 ence that fitted him for the position he was soon called upon to fill. 
 
 He had held aloof from office, though as a voter he was registered 
 with the democrats. In 1870 the election of a chief -judge and six 
 associate- judges of the Court of Appeals took place under the amended 
 constitution providing for a court of seven prominent judges, and 
 requiring that each elector should vote only for four associate-judges, 
 that giving both parties a representative. Mr. Rapallo, who was 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 459 
 
 nominated by the democrats as one of the four associate-judges, was 
 elected, with the other three, by an average majority of 85,093 votes. 
 In this high position the judicial faculty of Judge Rapallo was at once 
 brought into prominence. His learning and acuteness appear from the 
 record of leading opinions in which he has summed up the reasons of 
 the court for reversing the judgment of lower tribunals. Prominent 
 among these cases are : Ma'nice vs. Manice (43 1ST. Y. R.), involving 
 almost every question that can arise under the revised statutes in rela- 
 tion to the suspension of the power of alienation of real estate ; Clark 
 vs. Sheehan, a question of usury ; Harris vs. Frink, involving title to 
 crops under parole contract ; Hemman vs. Heard ; Reed vs. Gannon ; 
 Menagh vs. Whitwell ; Baker vs. Drake ; Filton vs. Bucker ; Wood- 
 gate vs. Fleet ; McDonald vs. Mallory ; People vs. Scuyler ; Young vs. 
 Young, and many others, contained in fifty-seven volumes of reports, 
 the opinions embracing a wide range of legal principles and character- 
 ized by largeness and breadth of judicial view. 
 
 In 1884 Judge Rapallo was re-elected, for the term of fourteen 
 years, associate-judge, by substantially the unanimous vote of both 
 parties, having been in the meantime (1880) the choice of his own 
 party at the State convention for the chief-judgeship. He continued 
 his judicial labors, however, 'scarcely three years from his re-election, 
 succumbing to fatal illness December 28, 1887, and leaving but a single 
 survivor (Judge Charles Andrews) of the original seven judges elected 
 to constitute the Court of Appeals in 1870. 
 
 The tributes to his memory were sincere and universal. Judge 
 Charles Andrews, who prepared and read the memorial before the 
 Court of Appeals, which adjourned immediately thereafter, said in 
 part: 
 
 In the combination of qualities which fit a man to be a judge, Judge Rapallo 
 had few if any superiors. He possessed intellectual gifts of a high order, absolute 
 integrity of purpose, a calm and dispassionate temper, great good sense, a solid 
 judgment, and these, united with adequate learning and power of philosophical 
 analysis, constituted him, as I think, one of the first judges of our time. 
 
 January 20, 1888, after the opening of the court, the Honorable 
 Amasa J. Parker presented resolutions adopted at a meeting of the 
 Albany bar, with eulogistic remarks, which by order of court were 
 entered on the minutes. A minute and resolutions of the Kings 
 county bar were also presented by William P. Davenport, and entered 
 upon the minutes. February 28, 1888, Honorable William Allen 
 Butler, on behalf of the New York State Bar Association, presented a 
 tribute and resolutions, which were ordered entered on the minutes of 
 the court. A memorial prepared by Stephen P. Nash in accordance 
 with a resolution of the Association of the Bar of the City of New 
 York at a stated meeting, held March 13, 1888, was also presented to 
 the court, and became a part of the minutes of the memorial proceed- 
 
460 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 ings in reference to the death of Judge Rapallo. A paragraph in this 
 memoral says : 
 
 From the time lie took his seat iu the Court of Appeals in July, 1870, till his 
 last illness, some seventeen years, his life was one of continuous and faithful devo- 
 tion to the duties of his office. Elevated to a seat in the highest court of the state, 
 and this an appellate court, sitting only in review of decisions of subordinate 
 tribunals, without having had any previous judicial experience, his immediate 
 success in disarming criticism and winning general confidence is proof that he had 
 the mental endowments, the sound learning and integrity of character essential to 
 the making of a great judge. 
 
 Judge Rapallo married in early life Helen, daughter of Bradford 
 Sumner, of Boston, Massachusetts. His widow, two sons and four 
 daughters survived him; 
 
 EYNOLDS, JOHN H. (born in Saratoga county, New York, 
 in 1819 ; died in Kinderhook, New York, September 24, 
 1875), received an academic education and was admitted to 
 the bar in 1843. He was for a time postmaster at Albany, 
 and was a member of congress. He was appointed to the Commission 
 of Appeals in 1873, and as a member of that body he wrote some most 
 able, ingenious and striking opinions, which attracted much attention 
 from the bar of the whole country. His associates on the Appeals 
 Commission were Lott, Gray, Earl and Dwight. 
 
 His opinion in the case of Appleby vs. Astor Insurance Company, 
 54 New York Reports, 253, may be cited as a specimen. It is there 
 held that upon an undisputed state of facts the court may render the. 
 judgment which the law requires, without the aid of a jury. This is 
 his terse statement of the case : " I am of the opinion that upon the 
 undisputed facts, under the provisions of the policy, the plaintiffs were 
 not entitled to recover, and that a verdict should have been directed 
 for the defendant. The terms of the contract between the parties must 
 control the result ; and if unambiguous, neither courts nor juries can 
 alter or modify its provisions or in effect make a new one." The posi- 
 tion thus outlined he maintains in an able opinion in the case of 
 Algur vs. Gardner, 54 New York Reports, 360, where he holds that it 
 is error for a judge to submit a question to a jury if there is no 
 evidence to authorize any finding thereon. In Savage vs. Allen, 54 
 New York Reports, 458, involving the question how far equitable 
 defence can be used as a basis for an injunction suit, he says : " The 
 proposition that a separate action may, under our present system, be 
 maintained to restrain by injunction the proceedings in another suit, 
 in the same or in another court, between the same parties, where the 
 relief sought in the later suit may be obtained by a proper defence to 
 the former one, has long since been exploded, or, if not, should be 
 without delay." He was especially strong in dealing -with questions of 
 procedure and in construing the code of procedure. 
 
HISTOKY OF THE BENCH AND BAK OF NEW YOKK 461 
 
 EYNOLDS, MARCUS T. (born in Florida, Montgomery 
 county, New York, December 22, 1778 ; died in Albany 
 January 13, 1864), was educated at Canajoharie Academy 
 and at Union College, being graduated from the latter in- 
 stitution in 1808 second in Ms class. He immediately commenced 
 the study of the law in the office of Attorney-General M. B. Hildreth, 
 at Johnstown, New York, and he was called to the bar in 1811, begin- 
 ning practice in Johnstown, where he soon ranked as one of the 
 best lawyers, although the Johnstown bar at that period was adorned 
 by many brilliant and distinguished men. In 1828 he removed to 
 Albany. There he became one* of the chief practitioners in the Supreme 
 Court and Court for the Correction of Errors, being for thirty -five 
 years counsel in the most important suits adjudicated in those tri- 
 bunals. He was equally effective in suits involving close and passion- 
 less reasoning, like that of Mabee vs. Peck, which was confined to 
 abstract questions of law, and in cases calling for more animated 
 qualities, like the celebrated Lamprey murder case. In his latter years 
 he conducted his causes sitting, having had one of his legs amputated 
 in consequence of injuries sustained in a fall. 
 
 He never sought or held public office, and on one occasion mani- 
 fested in a peremptory manner his distaste for political preferment. 
 In 1831 a delegation waited upon him to tender him the nomination 
 for congress for the Albany district, but he declined it. 
 
 ICHARDSON, JOSEPH L. (born in Tawneytown, Maryland, 
 June 5, 1777; died in Auburn, New York, April 15, 1853), 
 removed to Cayuga county, New York, at an early age and 
 settled in Aurora, where he read law with Walter Wood, 
 who subsequently became first judge of Cayuga county. He was ad- 
 mitted to the bar in 1802. In 1815 he was appointed by Governor 
 Tompkins district-attorney for the 9th district, embracing the counties 
 of Cayuga, Cortland, Chenango, Madison and Onondaga. He filled this 
 office with great ability, distinguishing himself specially by obtaining 
 the conviction of Bishop for highway robbery in a difficult case. In 
 1818, upon the discontinuance of the old district system, he became 
 prosecuting attorney for Cayuga county, continuing in that office until 
 1821. He was appointed by Governor Be Witt Clinton in 1827 first 
 judge of the Cayuga Court of Common Pleas, and he served on that 
 bench for nineteen years. His official career, as public prosecutor and 
 judge, covered a period of thirty-one years and was characterized 
 throughout by faithful and efficient performance of duty. 
 
462 
 
 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 IKER, RICHARD (born in Newtown, Queens county, New 
 York, September 9, 1773 ; died in New York City, Sep- 
 tember 26, 1842), was the son of Samuel Riker 1 and Anna 
 Lawrence. Receiving a good preliminary education under 
 the tuition of Dr. Witherspoon at Nassau Hall, New Jersey, he entered 
 the law office of the elder Jones and was admitted to the bar in 1795. 
 He became district-attorney of New York in 1801, holding that office 
 continuously to 1813, with the exception of a single year from Febru- 
 ary, 1810, to February, 1811. In 1815 he was appointed recorder of the 
 city. He served as recorder, with one or two short intermissions, until 
 1838. He then resigned on account of ill health, retiring to his coun- 
 try seat on the Hudson near the 
 present Seventy - fifth street, 
 where a few years subsequently 
 he died. 
 
 A recent writer, speaking of 
 his professional and personal 
 characteristics; says : 
 
 He was an excellent magistrate, 
 learned in the criminal law, of wide 
 experience, of unwearing patience, of 
 good nature and keen sympathies. 
 .... He was a gentleman of the old 
 school — of the curled and ruffled Co- 
 rinthian order — at a period when there 
 was time for dignity, deliberation and 
 courtesy Compared with Liv- 
 ingston, Jones, Kent and Ogden Hoff- 
 man, his abilities were not shining, 
 and yet in the provincial town in which 
 he flourished he made a prominent 
 figure, respected and beloved by all. 2 
 
 In 1802 Mr. Riker acted as second for De Witt Clinton in a duel 
 with Colonel John Swartwout. In 1803 he had a meeting with Robert 
 Swartwout, a brother of the colonel, and was severely wounded in the 
 right leg. He was in consequence confined to his house for seven 
 months. But he was not more conspicuous for his courage than for 
 his courtesy and engaging manners. It is related of ~* 
 
 him that Mr. John Van Wyck, who bore Mr. Swart- /IP /&.% 
 wout's challenge, was so favorably impressed by Mr. " ' ^^Z^ - ' 
 Riker during the interview that he returned to his principal and de- 
 clined to serve as his second. 
 
 Mr. Riker's political opponents sought to prosecute him for the 
 offence of fighting a duel, but Hamilton, who was his intimate friend 
 
 1 Samuel Riker fought in the revolutionary war, and 
 his brother Andrew commanded the Saratoga and the 
 YorMown in the war of 1812. One of his sisters married 
 Dr. Macnevin, of New York, and another, Thomas Addis 
 
 Emmet. He was a member of the state legislature in 
 1784, and of the 8th and 10 congresses, in 1803 and 
 1809, respectively. 
 s Irving Browne, in the Green Bag, April, 1896, 
 
HISTORY OF THE BENCH AlSfl) BAR OF NEW YORK 463 
 
 and a frequent visitor at his house on Wall street, successfully inter- 
 posed in his behalf. His early devotion to " the code," at a period 
 when duelling had not given place to the code of procedure, was strik- 
 ingly modified by his subsequent words as magistrate in the case of 
 Jacob Barker, indicted for sending a challenge to fight a duel (7 
 Wheeler Criminal Cases, 19). The jury convicted the accused, and the 
 recorder in passing sentence said : " We feel constrained also to pro- 
 nounce one word of reprobation on the direful practice of duelling, to 
 which the defendant himself assented in his argument. It is a practice 
 most abhorrent to reason, to humanity and to religion. By it many of 
 our best citizens have been destroyed — many a worthy family rendered 
 miserable. We are bound by every sanction to lend our aid to extin- 
 guish it." 
 
 He was distinguished, in connection with his legal attainments, for 
 his wit and polished manners ; and his prominence in official position 
 made him the mark for a satirical but pleasant poem, entitled " The 
 Recorder," by Halleck — one of the " Croakers " series, published pre- 
 viously to 1828. 
 
 OBERTSON, ANTHONY LISPENARD (born in New York 
 City, June 8, 1808 ; died there, December 18, 1S68), after his 
 graduation from Columbia College in 1825 studied for the 
 legal profession and in due time was admitted to practice. 
 He promptly gained high standing in the profession and for much of 
 his life was occupied in important judicial employments, being succes- 
 sively vice-chancellor (1846-48), surrogate of New York City (1848), and 
 judge of the Superior Court of the City of New York (elected in 1859 
 and re-elected in 1864), of which he became chief-justice in 1866. He 
 was a prominent member of the state constitutional convention of 1867. 
 
 OBINSON, EDMUND RANDOLPH (born in Philadelphia, 
 March 5, 1838 ; died in New York City, July 24, 1896), was 
 graduated from the University of Pennsylvania in the class 
 of 1855 and from Harvard in the class of 1856. He was ad- 
 mitted to the bar, engaged in practice in the City of New York, and 
 from a very early period in his career enjoyed important and remu- 
 nerative employments. For twenty-five years he served the Pennsyl- 
 vania Railroad Company as counsel. He was one of the committee of 
 those appointed to call the meeting at which the Association of the 
 Bar was organized, and was among the most active of the young men 
 who took part in the proceedings which resulted in the impeachment 
 of the corrupt judges. 
 
 Mr. Robinson was one of the most esteemed members of the New 
 York bar, highly respected by the profession alike for his abilities 
 and his character. 
 
464 HISTORY OF THE BENCH AND BAR OE NEW YOKE. 
 
 OBINSON, HAMILTON W. (born in Albany, New York, 
 November 25, 1814 ; died in New York City, April 7, 1879), 
 was graduated at Union College in 1832, studied law in the 
 office of McCown and Van Buren, and upon his admission to 
 the bar became a partner of Mr. Van Buren (" Prince John"). The 
 latter, when appointed attorney-general, made him his deputy. In 
 1848 the firm was removed to New York City, where, during the ten 
 years of its continuance, it was very prominent and successful. Mr. 
 Robinson gave particular attention to the law of corporations and 
 municipalities. After discontinuing his partnership with Mr. Van 
 Buren he practiced alone for several years. He was associated with 
 Charles O'Conor in the famous railroad cases which resulted in the 
 notable decision in People vs. Eerr, by which the Seventh avenue, 
 Broadway, and Dry Dock railways were enabled to construct their 
 lines. Among his clients were George Law and John Kerr, the rail- 
 road magnates. In 1863 he organized with John M. Scribner the firm 
 of Robinson & Scribner. He acted as referee in numerous cases of 
 great importance. 
 
 In 1870 he declined the democratic nomination for the bench of 
 the Court of Appeals in favor of his friend, Charles A. Rapallo. In 
 the same year he was elected a judge of the Court of Common Pleas, a 
 position which he occupied until his death. His decisions are con- 
 spicuous for fairness and accuracy, displaying exhaustive and patient 
 study of the merits of cases. A commemorative tablet in his honor 
 has been placed in the general-term room of the Court of Common 
 Pleas in the county court-house. 1 
 
 OBINSON, LUCIUS (born in Windham, Greene county, New 
 York, November 4, 1810), received an academic education 
 at Delhi, New York, pursued legal studies, and being 
 admitted to the bar began practice in 1832. He was 
 appointed district-attorney, and in 1843 and again in 1845 was 
 appointed master of chancery in the City of New York. He was 
 affiliated with the democratic organization until 1855, and then 
 joined the republican party, being elected in 1859 to the assembly 
 and in 1861 and 1863 to the office of state comptroller. Return- 
 ing to the democratic party he was renominated for comptroller in 
 1865, but was defeated. He was a member of the constitutional com- 
 mission of 1871-72, was once more chosen comptroller in 1875, and in 
 1877 was elected governor of New York as the candidate of the demo- 
 cratic party. In this office some of his acts, especially his removal of 
 County Clerk Gumbleton, of New York, upon charges preferred by 
 the Association of the Bar, were highly displeasing to the Tammany 
 
 1 This sketch has been condensed from a biography in the " History of the Court of Common Pleas of the City 
 and County of New York," by James Wilton Brooks (1896). 
 
HISTOET OF THE BENCH AND BAK OF NEW YORK 
 
 465 
 
 faction, and, upon his renomination for governor in 1879 by the Demo- 
 cratic state convention, that faction organized a bolt and ran John 
 Kelly as an opposing democratic candidate. The defection caused his 
 defeat, although the rest of the democratic state ticket was successful. 
 
 OELKEE, BERNARD (born in Osnabriick, Hanover, Ger- 
 many, April 24, 1816 ; died in New York City, March 5, 
 1888), emigrated to America in 1835 and for a number of 
 years taught private pupils in New York City. He began 
 the study of law in 1838 in the office of Theodore Sedgwick, but soon 
 afterward was called to Harvard University as an instructor in the Ger- 
 man language. While teaching in that institution he took the three- 
 years' course in the law school. He remained at Harvard for eighteen 
 years, during which he published various works — text-books, transla- 
 tions, etc. He was on familiar terms with the distinguished New 
 England literary characters of the period. Returning to New York 
 in 1856, he was admitted to practice on the motion of William M. 
 Evarts, and until his death he was prominent at the metropolitan bar. 
 His clients were chiefly German merchants, and on their behalf he 
 gave special attention to commercial, international and continental 
 law, the law relating to corporations, and particularly to the common 
 and statute law concerning wills and testaments. 
 
 OOSEYELT, JAMES JOHN (born in New York City, Decem- 
 ber 14, 1795 ; died there, April 5, 1875), an uncle of Robert 
 B. Roosevelt and grand-uncle of the present Theodore Roose- 
 velt, was admitted to the bar of New York City in 1818, 
 having graduated from Columbia College in 1815. He entered into a 
 legal copartnership with Peter Jay, and took a lead- 
 ing place in his profession and in politics. He was a 
 conspicuous supporter of Andrew Jackson's presiden- 
 tial candidacy in 1828. Retiring temporarily, he 
 visited Europe, and was a witness of the stirring 
 events that attended the French revolution of July, 
 1830. Upon his return he again devoted himself to 
 law and politics, and sat in the legislature (1835 and 
 1839-40) and in congress (1841-43). Afterward he 
 took another foreign trip, during which he made a 
 study of English, French and Dutch law and practice. He was elected 
 in 1851 a justice of the State Supreme Court, and for a part of his 
 term was a member of the Court of Appeals. Having been appointed 
 United States district-attorney for the southern district of New York, 
 he resigned his judicial position in 1859 ; but he served only one year 
 in his new office, - — - 
 
 ROOSEVELT ARMS. 
 
466 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 OOT, ERASTUS (born in Hebron, Connecticut, March 16, 
 1773 ; died in New York City, December 24, 1846), was 
 graduated at Dartmouth College in 1793 and began the 
 practice of the law in Delhi, New York, in 1796. He enjoyed 
 professional success, and was very active politically as an energetic 
 and able leader of the George Clinton school. His " Addresses to the 
 People," published in 1824, are a valuable illustration of the contro- 
 versies of those early times. He held the offices of member of the 
 legislature for very many years, representative in congress (1803-5, 
 1809-15 and 1831-33), lieutenant-governor (1820-22), state senator (1840- 
 44), and major-general of the New York militia. 
 
 UGER, WILLIAM CRAWFORD (born in Bridgewater, 
 Oneida county, New York, January 30, 1824 ; died in Syra- 
 cuse, New York, January 14, 1892), was the son of John Ruger, 
 a hard-working lawyer. He received an academic education, 
 began the study of law as a clerk in his father's office, and was admit- 
 ted to the bar in Utica, in 1853. He opened an office in Bridgewater 
 and continued there until 1853, when he removed to Syracuse. In that 
 city he practiced until his elevation to the bench. He soon ranked as 
 one of the ablest members of the Onondaga bar, being noted as a 
 shrewd, practical and efficient lawyer rather than a brilliant orator. In 
 the conduct of his cases he excelled especially in clearness of state- 
 ment, methodical arrangement of facts and logical and earnest reason- 
 ing. Among the important suits in which he was counsel were the 
 Lindsley murder trial, the suits connected with the Jaycox & Green 
 and People's Savings Bank bankruptcy, and the canal suits instituted 
 by Governor Tilden. In all of these he was successful. 
 
 Identified with the democratic party, he was a delegate to the 
 " hard-shell " conventions held at Rome and Syracuse in 1849. He was 
 an unsuccessful candidate for congress in 1864 and 1866. In 1872 he 
 was one of the old-line democrats who supported Charles O'Conor for 
 the presidency. 
 
 He was elected judge of the Court of Appeals in 1882 and became 
 its fourth chief-judge. His opinions are characterized by great impar- 
 tiality and dispassionateness. He was always reluctant to dissent, 
 manifesting a decided love erf precedent. 
 
 He was the first president of the Onondaga Bar Association, and 
 one of the organizers of the State Bar Association. 
 
 UGGLES, CHARLES HERMAN (born in Litchfield county, 
 
 Connecticut, February 10, 1789 ; died in Poughkeepsie, New 
 York, June 16, 1865), a son of Samuel Bulkeley Ruggles 
 (q. v.), entered upon the practice of the law at Kingston, 
 after completing his general and professional studies, He served in 
 
HISTORY OE THE BENCH AND BAR OP NEW YORK 467 
 
 the assembly in 1820 and in congress from 1821 to 1823. Having 
 attained considerable professional prominence, he was placed on the 
 circuit bench of Dutchess county, where he made a reputation as a 
 jurist. After leaving this office he was again sent to the legislature. 
 He sat on the bench of the Court of Appeals from 1851 until his resig- 
 nation in August, 1855. He was a delegate to the constitutional con- 
 vention of 1846. 
 
 UGGLES, SAMUEL BULKELEY (born in New Milford, Con- 
 necticut, April 11, 1800 ; died on Fire Island, New York, 
 August 28, 1881), was a son of Philo Kuggles, 1 under whose 
 direction he studied law after his graduation from Yale 
 College in 1814, being admitted to the bar in 1821 . After practicing 
 with much success for some years, he turned his attention to public 
 pursuits, and, being chosen to the assembly in 1838, become chairman 
 of the ways and means committee of that body, in which capacity he 
 rendered a memorable " Report upon the Finances and Internal Im- 
 provements of the State of New York." The recommendations of this 
 report became the basis for subsequent policy in the enlargement of the 
 Erie canal. " He was a commissioner to determine the route of the 
 Erie railroad, and a director in 1833-39, a director and promoter of 
 the Bank of Commerce in 1839, commissioner of the Croton aqueduct 
 in 1842, delegate from the United State to the international statistical 
 congresses at Berlin in 1863 and the Hague in 1869, United States com- 
 missioner to the Paris exhibition of 1867, and delegate to the interna- 
 tional monetary congress that was held there Mr. Ruggles' 
 
 claim to distinction rests chiefly upon his canal policy, and the stead- 
 fast attention that he continued to give to the Erie canal, both as a 
 private citizen during his life and as canal commissioner, in which 
 office he served from 1840 till 1842, and again in the year 1858." 2 
 
 He was a prominent citizen of New York City ; he laid out 
 Gramercy park, presenting it to the surrounding property owners 
 (1831), and was instrumental in the shaping of Union square. He was 
 identified with Columbia College, the Astor Library, the state chamber 
 of commerce and the general convention of the protestant episcopal 
 church. He wrote many papers on public and social topics. 
 
 UNKLE, CORNELIUS A. (born in Montgomery county, New 
 York, December 9, 1832; died in New York City, March 19, 
 1888), was a brother of Professor John Runkle, the mathe- 
 matician, and husband of Lucia A. Runkle, the writer. He 
 was a graduate of Harvard Law School (1855), and after practicing for 
 a while in New York City was placed in charge of the law division of 
 
 i Philo Ruggles was a leading lawyer of Poughkeepsie, being surrogate and district-attorney ther?, 
 ? Appleton's " Cyclopaedia of American Biography." 
 
468 HISTORY Oif THE BENCH AND BAR OF NEW TOEK 
 
 the custom-house as deputy collector. Retiring from that office, he 
 devoted himself professionally to litigations arising under the tariff 
 and internal revenue laws. He was counsel for the Tribune association 
 for a quarter of a century. 
 
 |AMPSON, WILLIAM (born in Londonderry, Ireland, Janu- 
 ary 17, 1764 ; died in New York, December 27, 1836), was 
 educated at Dublin University, became a barrister, and fre- 
 quently acted as counsel for members of the Society of 
 United Irishmen. Upon the failure of the rebellion of 1798 he fled, 
 but was brought back to Dublin, tried for complicity, and released 
 upon the condition that he would go to Portugal. He was imprisoned 
 in that country at the instance of the English government. He escaped 
 to Prance, returned to England, and defied the authorities, but was 
 allowed to depart to this country. He established himself in New 
 York City in 1806, and built up a considerable practice. Through his 
 writings he exercised a large influence in bringing about amendments 
 and codification of the laws of the state. In 1825 he removed to 
 Georgetown, District of Columbia. " More than one hundred of the 
 most eminent lawyers and judges of New York united in a letter of 
 regret at his removal, with a strong expression of their respect for his 
 attainments, genius and virtues." Governor De Witt Clinton and 
 Chancellor Kent sent him special letters of regard. He published 
 " Memoirs of William Sampson " (New York, 1807, and London, 1832), 
 " The Catholic Question in America " (1813), " Discourse before the New 
 York Historical Society on the Common Law " (1824), " Discourse and 
 Correspondence with Learned Jesuits upon the History of the Law " 
 (1826), and " History of Ireland " (1833). An appreciative article upon 
 his addresses and writings, with an account of the part he played in 
 the first movement toward codification, and an extended review of the 
 case of the " Journeymen Cordwainers of the City of New York," in 
 which he appeared for the defence, may be found in the August num- 
 ber of the Green Bag, 1896. 
 
 ANDFORD, CHARLES W. (born in Newark, New Jersey, 
 May 5, 1796 ; died in Avon Springs, Livingston county, New 
 York, July 25, 1878), studied in the law office of Ogden Hoff- 
 man, of New York City, and after his admission to the bar 
 practiced continuously in that city during a long professional career. 
 He was counsel in many notable railroad cases, particularly in connec- 
 tion with the Harlem Railroad, of which he was counsel for a score of 
 years. At an early period he attempted the role of theatre manager, 
 but abandoned it after two theatres had been burned. 
 
 Outside his profession he achieved military distinction. In the 
 militia of New York he rose from a private to the command of the 1st 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 469 
 
 division of the state, and was in command on the occasions of the 
 Astor place riot, Flonr riot, Street Preachers' riot, and Draft riot — his- 
 toric disturbances in the streets of the metropolis. He had been in 
 command of the militia of the City of New York for more than thirty 
 years when retired by Governor Fenton in 1867. One of the volunteers 
 answering Lincoln's first call at the commencement of the civil war, he 
 was in command at Harper's Ferry while the famous battle at Bull 
 Run was in progress. 
 
 He was a vice-president of the City Bar Association. 
 
 ANDFORD, EDWARD (born in Ovid, New York, September 
 22, 1809 ; died at sea, in the ill-fated steamship Arctic, Sep- 
 tember 17, 1854), after receiving an ordinary education, became 
 a teacher and lecturer at Albany, New York, studied law, and 
 was admitted to the bar in 1833. He began practice in New York City, 
 where in 1842 he received an appointment to the bench of the Criminal 
 Court. In 1843 he was a member of the state senate. He eventually 
 achieved a high position in the practice of law in the City of New York. 
 
 ANDFORD, LEWIS HALSEY (born in Ovid, New York, June 
 8, 1807 ; died in Toledo, Ohio, July 27, 1852), a brother of the 
 preceding, was admitted to the bar in 1828, his law studies 
 having been pursued at Syracuse. In 1833 he removed to New 
 York City. In March, 1843, he was appointed assistant vice-chancellor of 
 the 1st circuit, and in 1846 vice-chancellor. The next year he became 
 a justice of the Superior Court of the City of New York, and continued 
 upon this bench until his death. He was considered one of the ablest 
 judges. He compiled or edited many volumes of reports. These include 
 four volumes of the " New York Obancery Reports " (1846-50), and the 
 « New York Superior Court Reports " (1849-52). 
 
 ANFORD, CHARLES F. (born in New Haven, Connecticut, 
 in 1827 ; died in New York City, October 21, 1881), was the 
 son of a prominent merchant, and was descended from old 
 Puritan stock. He entered Yale College at sixteen, gradu- 
 ating in due course with honors. He afterward took the elementary 
 law course of the Yale Law School, and in the spring of 1849 entered 
 the law of&ce of Butler & Evarts, of New York City. In 1852 he 
 began practice for himself. He was associated at different times with 
 Henry Brace, Lewis B. and Charles H. Woodruff, and later with Charles 
 H. Woodruff and E. Randolph Robinson, under the firm name of San- 
 ford, Robinson & Woodruff. Although an attractive speaker, his dif- 
 fident disposition prevented his appearance in criminal cases, but he 
 
470 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 ranked high as an office lawyer and attained marked success. The De 
 Forest-Manill case, involving over $2,000,000, and the suit against the 
 Camden & Amboy Railroad Company, involving nearly $500,000, were 
 cases in which he conspicuously displayed his legal talents. In the fall 
 of 1875 he was elected judge of the Superior Court of New York City. 
 As judge he was distinguished by the care, patience and ability with 
 which he did his work. He died in office, after a protracted illness 
 that for more than two years had interfered with the performance of 
 his judicial duties. 
 
 ANFORD, NATHAN" (born in Bridgehampton, Suffolk coun- 
 ty, New York, November 5, 1777 ; died in Flushing, New 
 York, October 17, 1838), was admitted to the New York bar 
 in 1799, after attending Yale College and studying law. He 
 began the practice of law in New York City, but was soon occupied 
 with public affairs, his political life continuing to eclipse his profes- 
 sional career to the end except during the periods from 1803 to 1816 
 and from 1821 to 1825, when his public service was in the line of his 
 profession, — in the first instance as United States attorney, and in the 
 second as chancellor of the state, succeeding Kent. President Jeffer- 
 son appointed him United States commissioner in bankruptcy while 
 he was United States district-attorney. In his official capacity he had 
 charge of many important cases connected with the international diffi- 
 culties with France and England and the war of 1812. He served two 
 terms in the assembly, being for one year speaker, and also was for 
 three years a member of the state senate. From 1815 to 1821, and 
 from 1826 to 1831, he was a senator of the United States. He was one 
 of the most active members of the state constitutional convention of 
 1821. 
 
 AVAGE, JOHN (born in New York, in 1779 ; died in Utica, 
 New York, October 19, 1863), was graduated in 1799 at Union 
 College, and took a high rank at the bar not long after his 
 admission. He filled many public offices — was a member of 
 the assembly and congress, state comptroller, United States district- 
 attorney, United States assistant- treasurer in New York, and a presi- 
 dential elector on the Polk ticket. 
 
 On January 29, 1823, he was appointed chief-justice of the Supreme 
 Court of the state, and he occupied that position until 1836, resigning 
 to accept the place of clerk of the court at Utica, to which he was 
 appointed by his associates. His resignation was due to the inade- 
 quacy of the compensation then paid the judges of the state. 
 
 Chief-Justice Savage's opinions are reported in Cowen's and the 
 first fifteen volumes of Wendell's Reports. They are classed with the 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 471 
 
 ablest of American judicial opinions, being equally distinguished for 
 sound reasoning and profound learning. He uniformly gave most 
 scrupulous attention not only to principles but also to approved 
 authorities, and seemed to take pride in going back to the year-books 
 and old horn-books of the law. 
 
 CHOONMAKER, AUGUSTUS, born in Ulster county, New 
 York, March 2, 1828 ; died in that county, April 11, 
 1894), was educated in the common schools, taught school 
 and studied law. He was admitted to practice in 1853, 
 locating at Kingston. Closely applying himself, he rose to high rank 
 among the prominent members of the Ulster county bar. In 1863 he 
 was elected judge of the county, and he was re-elected in 1867. In 
 1875 he represented Greene and Ulster counties in the state senate, and 
 in 1877 became attorney -general of the state. 
 
 COTT, JOHN MOEIN (born in New York City, in 1750 ; died 
 there, September 4, 1784), was of distinguished ancestry. 1 
 He played a prominent part in New York City in connection 
 with the revolutionary war. He was one of three leading 
 lawyers (William Smith, Junior, and William Livingston being the 
 others), who according to the bitter partisan historian Jones, having 
 been so unfortunate as to be educated at Yale College — "a college 
 remarkable for its persecuting spirit, its republican principles, its 
 intolerance in religion, and its utter aversion to bishops and all earthly 
 kings," — and having further been degenerated along these lines by all 
 studying together in the office of the William Smith, Senior, "formed 
 themselves into a triumvirate and determined, if possible, to pull down 
 church and state, to raise their own government and religion upon its 
 ruins, or to throw the whole province, into anarchy and confusion." 
 He was one of the founders of the sons of liberty, and his influence 
 in arousing a spirit of independence, through speeches and newspaper 
 articles, was very great in New York. He was a member of the con- 
 tinental congress of 1775 ; of the New York committee of safety of 
 1776; the provincial congress of 1776; was a brigadier-general in the 
 Revolution (participating in the battle of Long Island) until March, 
 1777 ; became secretary of state of New York in the latter year ; was 
 a member of Congress between 1780 and 1783, and was again secretary 
 of state of New York in 1784, holding the office at the time of his death. 
 
 i He was the great-great-grandson of Sir John Scott, came to the province of New York about 1702. He at 
 baronet, of Ancrum, Scotland. His grandfather, John one time commanded Port Hunter, a stronghold on the 
 Scott— Sir John's grandson through'hla second son,— Mohawk river. 
 
472 HISTORY OF THE BENCH AND BAB OF NEW YOBK 
 
 CUDDER, HENRY J. (born at Northport, Long Island, Sep- 
 tember 18, 1825 ; died in New York City, February 10, 1886), 
 attended Huntington Academy, was graduated from Trinity 
 College in 1846, studied law with William Curtis Noyes, and 
 was admitted to the New York bar in 1848. Practicing bis profession 
 in connection with Judge Henry E. Davies prior to 1854, in the latter 
 year he formed a partnership with James C. Carter, which continued 
 until his death. This association was thus one of the oldest, as it was 
 one of the most notable, of the legal partnerships of New York City 
 during the period covered by it. 
 
 Mr. Scudder rose to one of the leading places at the bar. He was 
 a learned lawyer, a generous adversary, an eloquent and powerful ad- 
 vocate, and possessed such veneration for the law that its just inter- 
 pretation was of much greater concern to him than mere case-winning. 
 He enjoyed the confidence of his professional brethren in a remark- 
 able degree, and was frequently selected as referee in cases of great 
 moment. His opinions in marine insurance matters, to which he gave 
 much attention, were considered authoritative. A founder of the Bar 
 Association of the City of New York, he was one of its vice-presidents 
 and a member of its executive committee. 
 
 Mr. Scudder, with two exceptions, refused all invitations to con- 
 test for political honors. He once consented to the use of his name by 
 his party for the office of judge of the Superior Court of New York 
 City, but without the least probability of election. He represented 
 the 1st congressional district of New York in the 43d congress, but 
 refused a renomination. 
 
 ELLEN, HENRY ROGERS (born in Lyme, New London 
 county, Connecticut, October 14, 1805 ; died in Rochester, 
 New York, in September, 1885), was a son of Joseph Selden, 
 and belonged to a branch of the family that for two centuries 
 had been prominent in the Connecticut valley. He was educated at 
 the local institutions of his native town, and pursued his legal studies 
 in the office of Gardner & Selden in Rochester. He was admitted to 
 the bar in Utica in 1830, and immediately commenced practice in 
 Clarkson, on the western border of Monroe county. In 1851 he received 
 the appointment of reporter of the Court of Appeals, and he edited the 
 New York Reports from the fifth to the tenth volumes, inclusive. He 
 also edited " Selden's Notes of Cases in the Court of Appeals," cover- 
 ing the same period. He resigned on account of ill-health in 1854. 
 In 1856 he was elected lieutenant-governor of the state on the republi- 
 can ticket. 
 
 In 1862 Governor Morgan appointed him to the Court of Appeals 
 in place of his brother, Judge Samuel L. Selden, who had resigned ; 
 and though entitled under the constitution, as the judge having the 
 shortest time to serve, to preside over the court, he declined, insisting 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 473 
 
 that Judge Denio, the next in order of succession, should assume the 
 duties of the position. By popular vote in the next election he was 
 continued on the bench. His decisions are recorded in volumes 25 to 
 31, inclusive, of the New York Reports. In January, 1865, he resigned. 
 The next winter he was elected to the assembly from Monroe county. 
 
 His subsequent practice at Rochester, whither he had removed in 
 1859, was large and important. A case of notoriety throughout the 
 state was his appearance before Judge Hull in the United States District 
 Court at Albany in 1873, in behalf of Susan B. Anthony, who had been 
 arrested, charged with illegally voting at the presidential election of 
 1872. He was one of the signers of the call for the convention of 1872 
 which nominated Horace Greeley for president. In 1879, owing to ill- 
 health, he relinquished his profession and retired to quiet life in 
 Rochester. In 1858 Yale conferred upon him the degree of LL.D. 
 
 EKDEN, SAMUEL LEE (born in Lyme, New London county, 
 Connecticut, October 12, 1800 ; died in Rochester, New 
 York, September 20, 1876), elder brother of the preceding, 
 was educated in the local schools and academies of New 
 England, studied law at Rochesterville, New York, with his brother- 
 in-law, Joseph Spencer, and in 1825 was admitted to the bar at 
 Rochester. He was immediately received into partnership with Addi- 
 son Gardiner, and soon was occupied with most important business. 
 In 1830 he was chosen clerk of the board of trustees of Rochester. 
 Having previously shown j dicial ability as justice of the peace, in 
 February, 1831, he was elected first judge of the Court of Common 
 Pleas for Monroe county. After leaving that bench he was for many 
 years clerk of the 8th Chancery Circuit of New York state. In 1847, 
 at the first election under the constitution of 1846, he was chosen to the 
 Supreme Court as a democrat. As judge he exerted a marked influ- 
 ence in construing the new code of procedure, and reducing the new 
 practice to consistency and uniformity. He remained a member of the 
 Supreme Court until 1856, when he was elevated to the Court of 
 Appeals. He took a prominent part in the decisions of that tribunal, 
 especially those relating to the law of corporations, determining their 
 powers, liabilities and duties. The fifteen volumes of the New York 
 Reports, commencing with Volume x., contain his contributions to 
 the judicial records of the highest court. It is a singular circumstance 
 that Mr. Selden was elected to both the Supreme Court and Court of 
 Appeals before he had appeared at the bar of either. Overpowered 
 by domestic bereavements, in 1862 he resigned from the bench. 
 
 Judge Selden was one of the original promoters of the electric 
 telegraph system, and with others contributed the means for the con- 
 struction of the first section of the line under the Morse patent, con- 
 
474 HIST0KY OF THE BENCH AND BAK OF NEW YOEK 
 
 necting the seaboard with the western states, and for fifteen years was 
 a prominent factor in placing the telegraph business on a permanent 
 and successful basis. The degree of LL.D. was conferred upon him by 
 the University of Eochester in 1856. 
 
 EWARD, WILLIAM HENRY (born in Florida, Orange 
 county, New York, May 16, 1801 ; died in Auburn, New 
 York, October 10, 1872), was the son of Doctor Samuel S. 
 Seward, who was both a practicing physician and a merchant. 1 
 He attended Farmers' Hall Academy at G-oshen, New York, and Union 
 College from 1816 to 1819, interrupting his course at the latter for a 
 year, mainly spent in teaching in the south, and returning was grad- 
 uated from Union in 1820. His law studies were prosecuted with John 
 Anthon, of New York City, and Ogden Hoffman and John Duer, of 
 Goshen, New York. Admitted to the bar at Utica in 1822, the follow- 
 ing year he began practice at Auburn, New York, in partnership with 
 Honorable Elijah Miller, whose daughter became his wife. 
 
 Mr. Seward soon won recognition at the bar of Cayuga county, at 
 the same time taking an active part in politics. From the beginning 
 of his career he was a vigorous opponent of the democratic party. 
 After a brief association with the anti-masonic agitators he became one 
 of the leaders of the whigs. He was elected to the state senate in 1830, 
 and re-elected, greatly distinguishing himself in that body. In 1834 
 he was the whig candidate for governor, but he was defeated by Marcy. 
 This early period of his public life was closed by his return to the 
 practice of law in 1835. 
 
 He was elected governor in 1838 and again in 1840. Among the 
 measures of policy which he favored during his incumbency of that 
 office were the abolition of the Court of Chancery and the establishing 
 of an elective judiciary system, schemes which, though not popular at 
 the time, were subsequently adopted. 
 
 Between 1843 and 1849, after his retirement from the governorship, 
 occurred Mr. Seward's most brilliant work as a lawyer purely, and he 
 showed that the state could boast few who could equal him. either for 
 powerful advocacy or in the profound understanding and able pre- 
 sentation of the fundamental principles of the law. He distinguished 
 himself in the intricacies of patent law and in the trial of notable 
 criminal cases. Undoubtedly several of these famous suits had a deter- 
 mining influence upon his subsequent life, bringing him forward as an 
 opponent of the institution of slavery, courageous in championing his 
 convictions. Even threats of violence did not deter him in 1846 from 
 the defence of the negro Freeman, who had horribly butchered a white 
 family at Auburn, and his eloquent demonstration of a case of insanity 
 
 1 Mr. Seward was of Welsh descent on his father's founder of the family in this country was a Welsh 
 side and of Irish ancestry through his mother. The colonist in Connecticut. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 47H 
 
 has long been considered one of the most brilliant examples of such 
 special pleading. In 1847 he ably defended John Van Zandt in a 
 criminal prosecution for assisting in the escape of certain fugitive 
 slaves. In his defence of Horace Greeley in 1845, in the libel suit against 
 the celebrated editor by J. Fenimore Cooper, Mr. Seward delivered a 
 characteristic and most eloquent plea in behalf of the freedom of the 
 press. 
 
 From 1849 until his final retirement from active life Mr. Seward 
 was constantly in the public service, being United States senator from 
 .New York for two terms and secretary of state of the United States 
 from the beginning of Lincoln's administration until the end of John- 
 son's (1861 to 1869). It does not come within the scope of this work 
 to trace the events of his great career in that long period, which have 
 a conspicuous place in the history of the republic. 
 
 EYMOUR, HORATIO (born in Pompey Hill, Onondaga 
 county, New York, May 31, 1810 ; died in Utica, New York, 
 February 12, 1886), studied law with Samuel Beardsley and 
 Greene C. Bronson, and was admitted to the New York bar 
 in 1832. Although this suffices to number him among the statesmen- 
 lawyers who have been the glory of the New York bar, he never prac- 
 ticed his profession. There can be no doubt, however, that his legal 
 training was of great advantage to him in his illustrious and valuable 
 public career. 
 
 HAFFER, CHAUNCEY (born in Broome county, New York, 
 June 4, 1818 ; died in New York. City, May 15, 1894), was the 
 son of Gilbert Shaffer, a native of Columbia county, New 
 York, and Sarah Burdick, a member of a prominent Rhode 
 Island family. He was graduated at the Wesleyan University in 1836, 
 and for two years was principal of an academy in Oneida county, 
 meantime studying medicine. He was admitted to the bar in 1843, and 
 ever afterward was in active practice, becoming one of the most cele- 
 brated criminal lawyers of the state. During his career he defended 
 thirty-three murderers, only one of whom was cqnvicted. In 1869, 
 howtever, he discontinued this variety of practice, having taken an oath 
 never again to defend a murder case. One of his most famous trials 
 was his prosecution of Stevens, accused of poisoning his wife, which 
 lasted for twenty-one days, resulting in conviction, notwithstanding 
 the able efforts of very distinguished counsel on the other side. In 
 another well-remembered case he succeeded in establishing the propo- 
 sition that " reputation and cohabitation " constitute marriage, which 
 became a precedent. 
 
 Mr. Shaffer was an eloquent public speaker. . In the latter part of 
 his life he took a strong interest in the temperance cause. 
 
476 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 HERMAN, HENRY (born in Albany, New York, March 6, 
 1808 ; d%d in Washington, District of Columbia, March 28, 
 1879), was graduated at Yale College in 1829, and after ad- 
 mission to the bar practiced for a while in Connecticut, Al- 
 bany and New York City, but mainly in the City of Washington, 
 where he held a position in the treasury. He published " An Analyti- 
 cal Digest of the Law of Marine Insurance to the Present Time " (New 
 York, 1841), a " Governmental" history of the United States (1843), and 
 a history of slavery (1858). 
 
 IBLEY, MARK HOPKINS (born in Great Barrington, Massa- 
 chusetts, in 1796 ; died in Canandaigua, New York, Septem- 
 ber 8, 1852), was carefully educated, studied law, and having 
 removed to Canandaigua in 1814 was admitted to the bar, and 
 became an exceedingly successful advocate. He was active in politics. 
 He was a member of the assembly in 1834 and 1835, a member of con- 
 gress from 1837 to 1839, subsequently state senator, and in 1846 became 
 county judge. 
 
 ILLE, NICASIUS DE (born in Holland about 1600), enjoys 
 the distinction of being the first councillor of the Dutch col- 
 ony of New Amsterdam, arriving in this country July 24, 
 1633. He had been bred a lawyer, and, with the exception of 
 Adrian Van der Donck, was undoubtedly 
 the first of that profession in New Amster- 
 dam, now the City of New York. He was 
 an important and useful man in the early 
 colonial government. A resident for a number of years of New 
 Utrecht, Long Island, lie was the author of a concise history of that 
 settlement. 
 
 j\lcajiks^^Si 
 
 IMITH, EDWARD DELAFIELD (born in Rochester, New 
 York, May 8, 1826 ; died in Shrewsbury, New Jersey, April 
 12, 1 878), was the son of Doctor Archelaus Smith, a surgeon 
 of .the war of 1812. He was educated at the University of 
 the City of New York, graduating at the age of twenty, and two years 
 later was admitted to the bar. He formed a partnership with Clift 
 Smith in 1851, and later with Isaac T. Martin and Augustus F. Smith, 
 a brother. From 1854 to 1859 he published four volumes of reports of 
 selected judicial decisions of the Court of Common Pleas, known as 
 " E. D. Smith's Reports." He was for a time a member of the law fac- 
 ulty of the University of the City of New York, and until his death a 
 member of the law committee of the council. In April, 1861, he be- 
 came United States district-attorney at New York, and while holding 
 
HISTORY OE THE BENCH AND BAE OF NEW YORK 477 
 
 that office brought to the scaffold Nathaniel Gordon, master of the 
 slave-ship Erie. He also conducted the cases against John N. An- 
 drews, a leader of the New York riots. He resigned as district-attor- 
 ney, resumed practice alone and built up a large and lucrative busi- 
 ness. He later was appointed corporation counsel, being succeeded by 
 William C. Whitney in 1875. At the time of his death he was attor- 
 ney of record in the Jumel case. 
 
 MITH, ERASMUS DARWIN (born in De Ruyter, Madison 
 county, New York, October 10, 1806 ; died in Rochester, New 
 York, November 11, 1883), attended Hamilton College and 
 studied law. He served three terms as master in chancery from 
 1833. In 1841 he became clerk of the 8th New York district, having been 
 injunction master the year previous. Elected a justice of the Supreme 
 Court of the state in 1855, he served continuously on that bench until 
 his retirement on account of age in 1877. During this period he was 
 long assigned to general term (from 1872 to 1877), and sat upon the 
 Court of Appeals bench in 1862 and again in 1872. The most famous 
 of his decisions was the one delivered in the case of Hayes vs. Powers, 
 in which he vindicated the authority of the federal government to 
 issue paper money during war and constitute it a legal tender. Of 
 this case Chief- Justice Chase, of the United States Supreme Court, 
 said : " Its influence on the credit of the government was equal to a 
 victory in the field." 
 
 MITH, ERASMUS PESHINE (born in New York City, March 
 2, 1814 ; died in Rochester, New York, October 21, 1882), was 
 graduated at Columbia College in 1832 and at Harvard Law 
 School in 1833, engaging in practice in Rochester. In 1850 
 he became professor of mathematics in Rochester University, and in 
 1853 superintendent of public instruction for the State of New York. 
 Between 1857 and 1864 he was reporter of the Court of Appeals. In 
 the latter year he was appointed examiner of claims by Secretary Sew- 
 ard, also continuing under Secretary Hamilton Fish, and in that im- 
 portant capacity he performed services of much value to the nation. 
 He was well versed in international law, on which account he was rec- 
 ommended to the mikado of Japan, who desired to employ an adviser 
 in this department. He served Japan five years, especially distin- 
 guishing himself by breaking up the Chinese " coolie " trade. 
 
 MITH, HENRY KENDALL (born on the island of Santa 
 Cruz, April 2, 1811 ; died in Buffalo, New York, September 
 23, 1854), was the son of a landed proprietor of Santa Cruz, 
 who, after the transfer of the island by England to Denmark 
 in 1815, became bankrupt. The son, at the age of eight, was sent to Bal- 
 
478 
 
 HISTORY OF THE BENCH AND BAB OF NEW YORK 
 
 timore, Maryland, where lie received a good education. At seventeen he 
 entered a dry -goods store in New York, as a clerk, but soon afterward he 
 left this employment to begin the study of the law in the office of Daniel 
 Cady, at Johnstown. He was admitted to the bar in that place in 1832, 
 and soon became prominent in his profession and in democratic poli- 
 tics. Kemoving to Buffalo in 1837, he was in partnership there, suc- 
 cessively, with Israel T. Hatch, George W. Clinton, General Isaac Ver- 
 planck, and E,. V. Stevens. He rose to the position of a leader of the 
 Buffalo bar, and many of the cases in which he took part became 
 precedents in the Supreme Court and the Court for the Correction of 
 Errors. He was appointed district-attorney of Erie county in 1838, 
 but soon resigned. In 1844 he was made recorder of Buffalo, and in 
 1850 was elected mayor. From 1846 to 1848 he was postmaster of the 
 city. 
 
 MITH, JOSHUA HETT (born in New York City, in 1736, 
 where he died in 1818), was the son of the elder William 
 Smith (q. v.). He was a sucesssful lawyer in New York City 
 prior to the Revolution. In that struggle he was a decided 
 tory, and was implicated to some ex- 
 tent with Major Andre in connection 
 with the treason of Benedict Arnold. 
 Arnold and Andre passed the night 
 together at his residence at Haver- 
 straw, New York. Indeed, Smith 
 was tried for complicity in the affair 
 by a military tribunal, but was ac- 
 quitted. He was kept in ward for a 
 time, but escaped to New York City, 
 then occupied by the British, and 
 upon its evacuation went to England. 
 Later he returned to the United States. He wrote a partisan " Authen- 
 tic Narrative of the Causes that Led to the Death of Major Andre " 
 (London and New York, 1808 and 1809). 
 
 SMITH HOUSE, HAVERSTBAW. 1 
 
 MITH, WILLIAM (born in Northamptonshire, England, Feb- 
 ruary 2, 1655 ; died in Brookhaven, New York, February 18, 
 1705), was one of the earliest chief- justices. At the age of 
 twenty he was appointed governor of Tangiers — whence the 
 name of Tangier Smith, by which he is sometimes called. The project 
 of forming a British colony there being abandoned, he returned to 
 England, and three years later, during Dongan's governorship, came to 
 
 ' In this house, the residence of Joshua Hett Smith, of West Point. It stands on what is now Treason Hill, 
 Major AndrG met General Arnold, on the morning of near Haverstraw, on the Hudson, and can be seen from 
 August 22, 1788, and arranged the plan of the surrender the river. 
 
HISTORY OF THE BENCH AND BAR OF NEW TORE 479 
 
 New York, where he is supposed to have engaged in trade. Within a 
 week after the arrival of Governor Sloughter he was appointed a mem- 
 ber of the council. He was also put on the commission of oyer and 
 terminer for the trial of Leisler and his associates, and upon the crea- 
 tion of the Supreme Court was made its second justice. At the same 
 time he was appointed judge or delegate of the Prerogative Court of 
 Suffolk county. 
 
 He held the office of chief- justice throughout the administration of 
 Governor Fletcher. He was supplanted October 30, 1700— Stephanus 
 Van Cortlandt taking his place, — but was restored on November 25 
 of the same year. The following January he gave way to Abraham 
 de Peyster, who in turn was succeeded by Attwood, but after the lat- 
 ter's flight he was again appointed chief -justice (June 9, 1702), and he 
 continued to serve until April of the next year. 
 
 He was a resident of Brookhaven, Suffolk county, where he acquired 
 an extensive estate, subsequently erected into a manor — Saint George 
 manor — by patent of Governor Fletcher (1693), whose prodigal grants 
 of public lands to favored persons were afterward assailed by more 
 than one general assembly. 
 
 j]MITH, WILLIAM (born in Newport-Pagnel, Buckinghamshire, 
 England, October 8, 1697 ; died in New York City, November 
 22, 1769), was the son of Thomas Smith, and came to this 
 country with his father and two brothers, John and Thomas, 
 arriving in New York City August 17, 1715. James Alexander, one of 
 the most prominent lawyers of the colony, and father of the titular 
 Earl of Stirling, came over in the same vessel. He was graduated at 
 Yale in 1719, and for five years was tutor in that institution. 1 He was 
 learned in the sciences, a good theologian, and as a linguist proficient 
 in French, Latin, Greek and Hebrew. Severing his connection with 
 Yale College, he returned to New York City, where he was admitted to 
 the bar May 20, 1724. He soon gained recognition and acquired a 
 successful practice. His eloquence as an advocate was perhaps his 
 most striking characteristic. According to his son, the historian, in an 
 election contest for a seat in the JStew York assembly, Smith's oratory 
 alone won the contest for his client, his effective portrayal of the 
 scene of the crucifixion leading the assembly to reject all the votes of 
 its Jewish members. 
 
 In 1751, by appointment of Governor George Clinton, he succeded 
 Richard Bradley as attorney-general and advocate-general of the 
 colony, and served one year, bat was not confirmed by the home au- 
 thorities because of his previous prominence in prosecuting cases 
 against the government under Cosby. He also held the office of re- 
 
 i He declined the rector's chair in Tale College made vacant by the removal of Doctor Cutler, and was the 
 first lay character of it belonging to the Colony of New York. 
 
480 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 corder, and was a member of the governor's council from 1753 to 1767, 
 his son, William Smith, the chief -justice and historian, succeeding him 
 in that position. As councillor he attended the colonial congress held 
 at Albany in June, 1754, and was the New York member of the com- 
 mittee to draft the plan of union. He was himself an eloquent ad- 
 vocate of the scheme of union of the American colonies. He also 
 served in June, 1754, as commissioner to determine the boundary 
 between Massachusetts and New York. In 1760 he refused the ap- 
 pointment as chief -justice of the Supreme Court on a technicality in- 
 volving a principle respecting the dignity of the court and the extent 
 of royal interference. In 1763 he. was appointed an associate- justice of 
 the same tribunal, and so continued until his death, in 1769. In an 
 obituary notice following his decease the New York Gazette character- 
 ized him as "a gentleman of great erudition, the most eloquent 
 speaker in the province, and a zealous and inflexible friend to the 
 cause of religion and liberty." 
 
 It now remains to speak of Judge Smith's pre-eminent services in 
 establishing the right of free speech and a free press. The two great 
 leaders of the colonial bar of that day, Smith and James Alexander, 
 with Lewis Morris, the eminent chief-justice, formed a distinguished 
 triumvirate whose unceasing endeavors finally secured the triumph of 
 these principles. 
 
 The case between Governor Cosby and Rip Van Dam inaugurated 
 the contest. Although Van Dam, as senior councillor, had served a 
 year as acting-governor between the death of Montgomerie and the 
 arrival of Cosby, he found that the latter came with authorization to 
 appropriate half the year's salary to himself. Van Dam refused to re- 
 linquish it, and Cosby began a suit against him. The Governor 
 proposed to erect a chancery court to try the case — a thing always 
 objectionable to the popular party, which could not complacently 
 tolerate a system under which the executive, representing the king, 
 became interpreter of the law as well as its executor. Cosby did not, 
 of course, go to the extreme of presiding as chancellor in the trial 
 of his own suit, but constituted James De Lancey, Frederick Philipse 
 and Chief-Justice Morris, of the Supreme Court, a court of equity to 
 try it. William Smith and James Alexander were counsel for Van 
 Dam. They struck at the root of the issue, declaring that the gov- 
 ernor had no power to create an equity court, such power residing 
 alone in parliament or the legislature. Mr. Eugene Lawrence has thus 
 sketched the dramatic features connected with this famous case : 
 
 The suit against Van Dam was to be tried before the three judges as an ex- 
 chequer court ; it excited an intense interest among the people. . All the old violence 
 of party spirit was roused by this attempt, as it was thought, upon their liberties. 
 The old men who may have seen Leisler and Milborne led out to execution, and 
 who had never forgotten the dreadful scene ; the young men who chafed under the 
 haughty rule of the English officials ; the Dutch citizens who h^d felt the scorn of 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 481 
 
 their corrupt rulers and repaid it ; the presbyterians and other dissenters who had 
 been persecuted and plundered by the episcopalian governors, and probably the 
 great majority of the people, looked upon Rip Van Dam as only the new victim of a 
 foreign tyranny. For twenty years a member of the council, for several years its 
 senior member, its recent president, and one of the most respected members of the 
 community, he was now unjustly accused of improperly witholding moneys, and pros- 
 ecuted in an illegal court. Van Dam *was not to be terrified by the frowns of the 
 governor and his followers. He boldly resisted, and was not easily to be destroyed. 
 .... It would be useless to repeat here the technical argument of the two lawyers. 
 They boldly denied the authority of the royal council, or even of the king himself, 
 without the cousent of parliament, to legislate for New York; they made, in fact, an 
 appeal for independence. The opposing counsel were about to enter into the merits 
 of the case, when, to the surprise of Cosby and his adherents, the chief- justice, 
 Morris, interposed and delivered a decision in favor of the plea of Van Dam. He 
 held with Smith and Alexander that the governor had no power to create an equity 
 court. His two colleagues, De Lancey and Philipse, astonished at his boldness, 
 gave opposing opinions defending the governor ; they overruled even the chief -justice. 
 But no final decision was ever reached in this eventful case. The Court of Ex- 
 chequer, as constituted by Cosby, never met again. The public opinion set too 
 strongly against it. Van Dam was the victor in the contest against the court party, 
 and his bold resistance led to a new sense of colonial rights — perhaps to final 
 independence. ' 
 
 In retaliation Cosby ceased to summon James Alexander to his 
 council and removed Morris, who for twenty years had been chief-jus- 
 tice, appointing De Lancey in his place. This arbitrary course 
 
 augmented the excitement which already existed and divided the province into 
 
 two violent factions The right of the Supreme Court to exercise jurisdiction 
 
 in equity was brought before the general assembly at its next session. Petitions 
 were presented for the repeal of the Court of Exchequer as a branch of the Supreme 
 Court, and for the general re-establishment of all the courts by an act of the assem- 
 bly. The governor had a majority, but the opposition was so formidable from the 
 men that composed it and the strength derived from the popular support, that a 
 resolution was agreed to inviting the two most prominent lawyers of the respective 
 parties to argue the question before the bar of the house. Mr. Smith, the father of 
 the historian, was heard on the democratic side, and Mr. Murray, the oldest member 
 of the bar, in reply— in an argument evincing on both sides a great deal of ability 
 and an amount of research and antiquarian information that was scarcely to hav 
 been expected. 2 
 
 Smith, Alexander and Morris now became the distinguished lead- 
 ers of the popixlar party, which incessantly opposed the pretensions of 
 the governor. Bradford's Gazette being the servile organ of the latter, 
 a rival newspaper, the New York Weekly Journal, was started, with 
 John Peter Zenger as editor. The first number was issued November 
 12, 1733. 
 
 The chief purpose of the paper lay in its bitter attacks upon Cosby's administra- 
 tion. No point of assault was neglected, no personality or satire spared. Morris, 
 Alexander, Smith and others had formed a club that met weekly, and here were no 
 doubt arranged and suggested the essays, the squibs, the verses, the parodies, and 
 
 • "Memorial History of New York," Vol. »., pp. 2 Judge Daly's "Historical Sketch o{ the Judicial 
 31r . 218i Tribunals of New York," p. 43, 
 
482 HISTORY OF THE BENCH AND BAE OF NEW YOKK 
 
 sharp rejoinders to the heavy and often ill-considered replies that were sometimes 
 inserted in the Gazette. Many of the leading essays in the Journal are written in 
 a clear, correct style, full of force and novelty. Their chief aim was to defend the 
 most liberal view of the liberty of the press. The writers felt, no doubt, that they 
 lived under a despotism that might, at any moment, strike them with its sharp pen- 
 alties. They used all the resources of reason to rouse the people to resistance. Their 
 argument is unanswerable, because true. But its unrivalled power lay in its nov- 
 elty. Few in 1730 had even heard of the liberty of the press. Fewer understood its 
 meaning. It was many years before Junius was to complete his reputation by his 
 powerful enunciation of the same truth. It was so long since Milton had written 
 his great period on Truth's certain victory, that it was forgotten. In the days of 
 Swift and Addison few read Milton's prose. But week after week, in grave and 
 stately sentences, the New York writers kept up one long, loud cry, ' ' The Liberty 
 of the Press ! " The effect was startling. It spread from colony to colony; a news- 
 paper was soon established in Charleston that took up the cry ; Boston and Phila- 
 delphia watched attentively the struggle in New York, and we may trace in the 
 leading articles of the New York Weekly Journal of 1733 and 1734 many of the 
 ideas and sometimes the language itself that Otis, Franklin and Adams made use of 
 in defending and securing the liberties of the continent. 1 
 
 The sequel is well known. Certain issues of the Journal were con- 
 signed by the council to be burned " near the pillory by the hands of 
 the common hangman," while Zenger was arrested, imprisoned and 
 brought to trial for libel. But spite of De Lancey's efforts the grand 
 jury refused to indict Zenger. Instead of being released, however, the 
 attorney-general preferred new charges against him. Smith and Al- 
 exander came once more to the front as Zenger's counsel. They boldly 
 attacked the validity of the court, declaring that Cosby's removal of 
 Chief-Justice Morris without consulting his council was illegal, and 
 that the commissions of Judges De Lancey and Philipse were invalid, 
 the appointments being " during pleasure," instead of during " good 
 behavior." (Smith's refusal of the chief-justiceship in 1760 was be- 
 cause his commission read " during pleasure," thus resting the stabil- 
 ity of judicial institutions upon the good pleasure of the appointing 
 power, which he would not allow.) The result of the bold stand of 
 Smith and Alexander was that both were expelled from the New York 
 bar by Chief-Justice De Lancey. But their place was taken at Zen- 
 ger's trial by Andrew Hamilton, leader of the Philadelphia bar. He 
 was instructed as to the merits of the case by his deposed New York 
 colleagues, and at the trial made one of the most brilliant and power- 
 ful addresses in a great case recorded in the annals of legal practice on 
 this continent. 
 
 Zenger was acquitted. Thus " New York, we may well remember, 
 was the first of the cities to assert the liberty of the press when, all 
 over Europe and America, thought was chained and intellect impris- 
 oned." The entire credit of the great achievement, momentous in the 
 history of the world, we may ascribe to the remarkable courage and 
 ability of four great colonial lawyers — William Smith, James Alexan- 
 
 1 "Memorial History of New York," Vol, ii., pp. 237, 228. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 483 
 
 der, Lewis Morris and Andrew Hamilton. Smith and Alexander, who 
 had been expelled from the bar in a bootless attempt to frustrate jus- 
 tice, were of course subsequently restored to practice, and throughout 
 their careers remained the acknowledged and honored leaders of the 
 legal profession. 
 
 jMITH, WILLIAM (born in New York City, June 25, 1728 ; 
 died in Quebec, Canada, December 3, 1793), was the son of 
 the preceding. He is generally spoken of as " the historian," 
 both in recognition of his famous work, the first history of 
 New York, and also to distinguish him from his eminent father and 
 from the William Smith known as " Tangier " Smith, who was chief- 
 justice of the colonial Supreme Court of New York at a much earlier 
 period. 
 
 The historian was educated at Yale, like his father, being gradu- 
 ated in 1745, studied law, was admitted to the bar in New York City 
 in October, 1750, and was soon in the enjoyment of a successful and 
 extensive professional business. He began practice in partnership 
 with William Livingston, afterward governor of New Jersey, and with 
 him was appointed by the New York assembly to revise the laws — a 
 task which Chief- Justice Horsmanden had undertaken but left uncom- 
 pleted. This important labor Smith and Livingston creditably per- 
 formed, the first volume of their revision being published in 1752 and 
 the second in 1762. 
 
 Judge Smith became a member of the king's council in 1769. He 
 greatly deplored the Revolution, and endeavored to remain neutral, 
 but of course found it a difficult and trying position. His own plan 
 for the settlement of the differences which had arisen was a scheme of 
 colonial representation in parliament — the general idea of which Ben- 
 jamin Franklin also advocated. When Washington entered New York 
 City in April, 1776, Mr. Smith offered him his city residence and retired 
 to his country-seat at Haverstraw. In June of the following year he 
 was summoned before the committee of safety at Kingston, which in- 
 quired concerning his sentiments. When asked if he considered him- 
 self a subject of the independent states of America, he replied that he 
 did not consider himself discharged from his oath of fidelity to the 
 crown of Great Britain. His liberty was accordingly confined to the 
 bounds of Livingston manor. 
 
 By 1778 he appears to have come to the settled conclusion that 
 his oath to the crown was inviolate, and when New York City was" in 
 the hands of the British he obeyed the summons to return there, and 
 subsequently accepted a commission from the king as chief -justice of 
 New York. This office he held until the evacuation of New York by 
 the British in 1783, when he accompanied Sir Guy Carleton to Eng- 
 land. He was afterward appointed chief- justice of Canada, held that 
 
484 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 position until his death, and was "literally the father of the reformed 
 judiciary of that province." He has been thus characterized : 
 
 He was an upright and just judge, and, among the minor changes that he 
 instituted in the courts, established the office of constable, whose duties before his 
 administration had devolved upon the soldiers. He was intimate with many emi- 
 nent English statesmen He was an eloquent speaker, and many of his law 
 
 opinions were collected and recorded by George Chalmers in his ' ' Opinions on In- 
 teresting Subjects Arising from. American Independence (1784)." ' 
 
 Judge Smith published his " History of the Province of New York 
 from its Earliest Settlement to 1732" in the year 1757, at the same 
 time issuing a pamphlet in defence of Governor Shirley's military 
 career. He was then but thirty years of age, but his work has been 
 the inexhaustible resource of historians from that day to this. Another 
 volume, carrying the history through the Revolution, at his request 
 was not to be made public until some time had elapsed after his death. 
 Both volumes were published by the New York Historical Society in 
 1829. 
 
 PENCER, AMBROSE (born in Salisbury, Connecticut, De- 
 cember 13, 1765 ; died in Lyons, New York, March 13, 1848), 
 attended Yale and Harvard colleges, being graduated from the 
 latter in 1783, and studied law with John Canfield, of Sharon, 
 Connecticut. He settled in Hudson, New York, and soon was actively 
 concerned in politics. He was city clerk of Hudson in 1786 ; a mem- 
 ber of the assembly in 1793 ; a member of the state senate from 1795 
 to 1802 ; assistant-attorney-general of Columbia and Rensselaer counties 
 in 1796 ; from 1802 to 1804 attorney-general of the State of New York ; 
 a justice of the Supreme Court of the state from 1804 to 1823, and 
 after 1819 chief-justice ; a member of a committee with Peter J. Munro 
 by legislative appointment in 1808 to suggest reforms in the chancery 
 system of the state ; a presidential elector in 1809 ; a prominent mem- 
 ber of the constitutional convention of 1821 ; mayor of Albany from 
 1824 to 1826 ; a member of congress from 1829 to 1831, and chairman 
 of the whig national convention at Baltimore in 1844. 
 
 He was author of the bill abolishing capital punishment in the 
 State of New York in all cases except treason and murder, and secured 
 the establishment of the state prison at Sing Sing. In Congress he 
 contended against the injustice done to the Cherokee Indian nation. 
 He opposed an elective judiciary in this state. He was learned in the 
 law, and especially in equity jurisprudence. Many able decisions de- 
 livered by him are contained in the New York Supreme Court Reports 
 from 1799 to 1803 and from 1808 to 1812, and in the New York Chan- 
 cery Reports from 1814 to 1823. 
 
 1 Appleton'e " Cyclopredia of American Biography," Vol. v., p. 501. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 485 
 
 JPENCER, CHARLES S. (born in Ithaca, New York, in 1827 ; 
 died in New York City, August 11, 1887), was graduated at 
 Wesleyan University, Middletown, Connecticut, was admitted 
 to the bar, and began practice at Elmira, but soon removed 
 to New York City, where he gradually gained a large practice in the 
 criminal courts. He was associated, at different times, with Philip 
 Jordan, James T. Brady and John J. O'Brien. He was elected to the 
 assembly as a republican in I860- and 1861, and again in 1873. In 1884 
 he was a candidate for district-attorney, but was defeated by Randolph 
 B. Martine. 
 
 PENCER, JOHN CANFIELD (born in Hudson, Columbia 
 county, New York, January 6, 1788 ; died in Albany, May 
 20, 1854), was a son of Chief- Justice Ambrose Spencer. He 
 was trained from boyhood for the bar, and after his gradua- 
 tion from Union College pursued his legal studies in his father's 
 office. He was private secretary to Governor Tompkins. At the age 
 of twenty-three he was admitted to the bar, and removing to Canan- 
 daigua he soon became there both a professional and a political leader. 
 In 1815 he was appointed district-attorney for the district embracing 
 the five western counties of the state. Elected to congress, he was 
 conspicuous in that body for his strong opposition to the United States 
 bank. He also served in the assembly, of which he became speaker, 
 and in the state senate and Court of Errors. 
 
 In 1827 he was appointed a commissioner to revise the statutes of 
 New York, in place of Henry Wheaton, resigned. He contributed 
 valuably to the work begun by his associates, Benjamin F. Butler and 
 John Duer. In 1829 he was designated by Governor Van Buren as 
 prosecutor of the persons charged with abducting William Morgan. 
 He was elected secretary of state of New York in 1887, and he held the 
 portfolios of secretary of war and secretary of the treasury in the 
 cabinets of Harrison and Tyler. President Tyler nominated him for 
 associate- justice of the United States Supreme Court, but owing to 
 factional considerations the senate refused to confirm him. Afterward 
 he devoted himself exclusively to professional practice. 
 
 John C. Spencer was one of the greatest lawyers New York state 
 has produced. The general judgment of the profession respecting him, 
 says Mr. William Allen Butler, in his monograph on " The Revision 
 and the Revisers," "was summed up in the brief sentence of a 
 journalist who characterized his ' singular capacity to labor without 
 fatigue as only equalled by the extent and variety of the professional 
 services he performed.' " 
 
486 
 
 HISTORY OP THE BENCH AND BAR OP NEW YORK 
 
 PENCER, JOSHUA A. (born in Great Barrington, Massa- 
 chusetts, May 13, 1790 ; died in Utica, New York, April 28, 
 1857), was educated at the public school and academy of his 
 vicinity, served in the war of 1812, and at twenty-five, after 
 having read law in the office of his elder brother, Ichabod Spencer, at 
 Lenox, Massachusetts, was admitted to the bar. He practiced several 
 years at Lenox, removing to Utica in 1828. He there formed a partner- 
 ship with William H. Maynard, and later was associated with Francis 
 Kernan. In 1845 he was elected to the state senate. In 1848 he was 
 mayor of Utica, and under Harrison and Tyler he was United States 
 district-attorney for the northern district of New York. He was one 
 of the recognized leaders of the Utica bar. 
 
 fTEVENS, JAMES ALEXANDER (born in New York City, 
 January 29, 1790 ; died in Hoboken, New Jersey, October 7, 
 1873), was the son of John Stevens, the inventor. He was 
 graduated from Columbia College in 1808, and admitted to 
 the New York bar in 1811. He took an important part in the great 
 legal contest of Ogden m. Gibbons, which resulted in the abolition of 
 the Livingston-Fulton steamboat monopoly, and in which it was 
 decided that navigable waters were under federal instead of state 
 jurisdiction. 
 
 TEWART, ALVAN (born in South Granville, Washington 
 county, New York, September 1, 1790 ; died in New York City, 
 May 1, 1849), educated himself, mainly by teaching, attended 
 Burlington College (Vermont), read law, and began practice 
 in Cherry Valley, New York. He soon gained an extended reputation 
 both for his professional attainments and as an aggressive supporter of 
 various principles. He advocated protective tariffs, public education 
 and liberal expenditures for public improvements, and from about the 
 year 1832, when he removed to Utica, he was an earnest champion of 
 the causes of abolition and temperance reform. He maintained that 
 congress had constitutional authority to abolish slavery, and was very 
 instrumental in creating the abolition party which eventually held the 
 balance of power in the State of New York. He was the candidate of 
 this party for governor. 
 
 TILWELL, SILAS MOORE (born in New York City, Jane 6, 
 1800; died there, May 16, 1881), was the son of. a revolu- 
 tionary soldier, and a descendant of Nicholas Coke (brother 
 of the regicide, John Coke), who assumed the name of Stilwell 
 upon coming to the colonies. Mr. Stilwell received an academic edu- 
 cation ; engaged in mercantile pursuits in New York City ; removed to 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 487 
 
 Tennessee and became a member of its legislature in 1822 ; thence to 
 Virginia, where he became clerk of Tazewell county, a member of the 
 legislature, and was admitted to the bar ; in 1828 returned to New 
 York City, and from 1829 to 1833 was a member of the legislature of 
 this state. He was candidate for lieutenant-governor when William 
 H. Seward ran for governor in 1834 ; was chairman of the board of 
 aldermen of New York City in 1835 and acting mayor at the time of 
 the great fire of that year ; declined a cabinet appointment offered him 
 by President -Harrison ; became United States marshal for the southern 
 district of New York, and accepted a special mission to the Hague 
 He was author of the so-called " Stilwell act," abolishing imprison- 
 ment for debt in New York state, as also of the bankrupt act, national 
 banking act and system of organized credits of 1863. Between 1860 
 and 1872, under the name of " Jonathan Oldbuck," he was a frequent 
 contributor to the New York Herald. He wrote several volumes on 
 financial subjects. 
 
 TORUS, HENRY RANDOLPH (born in Middletown, Connec- 
 ticut, September 3, 1787 ; died in New Haven, Connecticut, 
 July 29, 1837), was graduated from Yale College in 1804, 
 admitted to the bar in 1807, and subsequently became judge 
 of Oneida county, New York, serving five years. He was in congress 
 continuously from 1819 to 1831, where he attained high rank as an 
 eloquent debater. At the close of his congressional service he located 
 in New York City, and became recognized as one of the leading prac- 
 titioners. 
 
 TOUGHTON, EDWIN WALLACE (born in Springfield, Ver- 
 mont, May 1, 1818 ; died in New York City, January 7, 
 1882), came to New York City in 1836, studied law, and was 
 admitted to the bar in 1830. He achieved a conspicuous 
 place in the profession, and appeared in many important cases, includ- 
 ing the Goodyear rubber cases, the suit of Ross Winans against the 
 Erie railroad and the receivership cases of the same road in the United 
 States courts in 1868. He was counsel for William M. Tweed for a 
 time, when the attack upon the notorious boss first began, and was 
 counsel for the stockholders of the Emma mine. He ably advocated 
 the claim of General Hayes before the electoral commission, and in 
 1877 was appointed minister to Russia. He returned to the United 
 States in 1879. ' 
 
 TRONG, GEORGE TEMPLETON (born in New York City, 
 February 26, ]820; died there, July 2, 1875), was the son of 
 George Washington Strong, a well-known lawyer of New 
 * York City, and grandson of Judge Selah Strong. He was 
 graduated from Columbia College in 1838, and became a successful 
 
488 
 
 HISTORY OF THE BENCH AND BAB OP NEW YOBK 
 
 practitioner in New York City. He was a member of the executive 
 committee and treasurer of the United States sanitary commission 
 during the civil war. 
 
 TRONG, SELAH BREWSTER (born in Setauket) Long Island, 
 December 25, 1737 ; died there, November 29, 1872), was a 
 son of Thomas S. Strong, a judge of the Common Pleas Court 
 of Suffolk county. In 1811 he was graduated at Yale, and in 
 1814 was admitted to the bar. From 1821 to 1841 he was district- 
 attorney of Suffolk county, from 1843 to 1845 a member of congress, 
 and from 1847 to 1860 a judge of the Supreme Court of New York, 
 from which bench he delivered very able opinions. He sat in the 
 constitutional convention of 1867. 
 
 TRONG, THERON RUDD (born in Salisbury, Connecticut, 
 November 7, 1802 ; died in New York City, May 15, 1873), was 
 the son of Martin Strong, county judge and a member of the 
 Connecticut legislature. With him the son studied law, and 
 in 1826 was admitted to the bar in Wayne county, New York, whither 
 the family had removed. He began practice in Palmyra, New York ; 
 was district- attorney of Wayne county from 1834 to 1839; a member of 
 congress from 1839 to 1841 ; a member of the legislature in 1842, and 
 from 1852 to 1860 was a justice of the Supreme Court, and served a year 
 in the Court of Appeals. A large proportion of his opinions were re- 
 ported, his record in this respect ranking him next to Judge Hiram 
 Denio. After his retirement Judge Strong resumed practice in Roch- 
 ester, and in 1867 removed to New York City, where he acquired a 
 large business and frequently acted as referee. 
 
 ULLIVAN, ALGERNON SYDNEY (born at Madison, In- 
 diana, April 5, 1826 ; died in New York City, December 4, 
 1887), was the son of Judge Jeremiah Sullivan, of Indiana, 
 and his wife, Charlotte Rudesel Cutler, of an old Virginia 
 family. The family of Sullivan is one of the interesting septs of the 
 ancient Irish nobility, tracing its descent in unbroken line from a 
 remote antiquity. 1 The following account of the more immediate 
 ancestors of Mr. Sullivan is extracted from Burke : 
 
 1 According to Burke it " deduces its descent from 
 Oliol Ollum, King of Munster, who reigned A. d. 125, 
 and whose lineage the Hibernian chronicles trace from 
 Heber Fionn, one of the sons of Milesius " (" Landed 
 Gentry," 8th Ed., London, 1894). Of the early history 
 of the Sullivans of County Cork— the family of Mr. Sul 
 livan of New York — O'Hart (" Irish Pedigrees," 1st 
 Ser., Dublin, 1876, p. 225) gives this account: " In 
 Cork, the following have been the IriBh chiefs and 
 clans: 1. The O'Sullivans had the ancient territory of 
 Beara, now the baronies of Beare and Bantry in the 
 
 County Cork, and were called O'Sullivan Beara, and 
 styled princes of Beara. Another branch of the family, 
 called O'Sullivan Mor, were lords of Dunkerron, and 
 possessed the barony of Dunkerron, in the County 
 Kerry, and their chief seat was the castle of Dunkerron, 
 near the river Kenmare. A third branch of the O'Sulli- 
 vans were chiefs of Knockraffan, in Tipperary. The 
 O'Sullivans .... took their name from Suileabhan 
 [sometimes written " Snlevan"; O'Sullivan means " sons 
 of Sullivan "], one of their chiefs in the tenth century. 
 In the reign of James I., their extensive possessions 
 
HISTORY OF THE BENCH AND BAJR OP NEW YOEK 489 
 
 Daniel O'Sullivan, a lineal descendant of the king of Minister, dropped the pre- 
 fix " O" from his surname. He married Margaret Tucker, of County Kerry, and 
 dying in 1682, left a son, Darby Sullivan, Esq. The latter married Joanna Taylor, 
 of Kilbolane Castle, and died in 1737, leaving three sons, Jerome, William and 
 James. Of these, William was born September 29, 1729, and married, February 15, 
 1763, Mary, daughter of Honorable Thomas Morgell, of Mount Morgell, County 
 Limerick. He died Frebruary 22, 1795. 
 
 This William Sullivan, whose seat was Tullilease House, Charleville, County 
 Cork, was the grandfather of Thomas Lyttleton Sullivan, who came from Charle- 
 ville to Augusta county, Virginia, in March, 1791. 
 
 The latter married, in Virginia, Margaret Irwin, a lady of Scotch 
 descent. Their only child, Honorable Jeremiah Sullivan, was edu- 
 cated at William and Mary College, served as a volunteer soldier 
 during the war of 1812, and upon the return of peace declined a com- 
 mission in the United States army in order to study law. He was 
 admitted to the bar in 1816, and, having selected Madison, Indiana, as 
 his future home, removed to that place the following year with his 
 parents and young wife, Charlotte Rudesel Cutler. He became one of 
 the most prominent legal figures in Indiana, and for many years was a 
 justice of the Supreme Court. He was " a learned and able judge, to 
 whom Indiana will ever remain indebted for his services in laying the 
 firm foundation of its jurisprudence." 
 
 Algernon Sydney Sullivan was the second son in a family of eleven. 
 He was carefully educated at home, and attended college at Hanover, 
 Indiana, and at the Miami University in Ohio, from which he graduated 
 in 1845. The question of appropriating funds for the establishment of 
 an adequate public school system having been made a political issue in 
 Indiana, immediately after his graduation from college, at the age of 
 twenty, Mr. Sullivan threw himself into this canvass, and stumped the 
 state in favor of the school system, gaining by his eloquence the sobri- 
 quet of " the young Demosthenes." Later he studied law, was admitted 
 to the bar, and, removing to Cincinnati in 1849, began the practice of 
 his profession. In that city he rose with remarkable rapidity to dis- 
 tinction in professional and private life. Although so young a lawyer, 
 he was selected, in 1851, by the city authorities of Cincinnati, to deliver 
 the address of welcome upon the occasion of the visit of Kossuth, the 
 Hungarian patriot. When the collapse of the values of his invest- 
 ments in property in the northwestern states released his interests in 
 that section and led to his removal to New York City, in May, 1857, 
 his legal abilities and social brilliancy instantly secured for him the 
 same professional recognition and social honors he had enjoyed in Cin 
 cinnati. The year after taking up his residence in New York he was 
 selected one of the members of the committee which escorted the 
 remains of President Monroe to Richmond, Virginia. In 1871 he was 
 
 were confiscated in consequence of their adherence to where many of them were distinguished officers in the 
 the earls of Desmond and Tyrone in the Elizabethan Spanish service, and had the title of counts of Bear- 
 wars, and the heads of the family retired to Spain, haven." 
 
490 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 chosen to deliver the welcoming address to Grand Duke Alexis, of 
 Russia. 
 
 Mr. Sullivan's private law practice was interrupted by his public 
 service as assistant-district-attorney of the city during the three years 
 1870-73, and as public administrator for ten years from 1875 to 1885. 
 It was also interrupted at all times by appeals for gratuitous service 
 which his generous nature never could resist. The large corporations 
 desiring his brilliant services again and again found they could not be 
 secured because his energies were engrossed by his devotion to poor 
 and unknown clients, whose causes he championed without hope of any 
 remuneration save the approval of a good conscience. The extent to 
 which he gave his professional attention to this class of work is scarcely 
 credible. His severe labors in such connections, without rest or relaxa- 
 tion, as well as in attending to the more profitable business that came 
 to him, finally led to his death through nervous exhaustion. In the 
 later years of his life his legal associates, desirous of reserving his 
 energies for the important corporation practice of the firm, instituted, 
 unknown to him, an informal system of cross-examination of those who 
 sought interviews with him during office hours, to prevent them from 
 making appeals to which it was certain he would respond, however 
 injurious to his own material interests the demands might be. Had 
 Mr. Sullivan known this he would have been deeply grieved. More- 
 over, those who failed to see him at his office had but to call at his home 
 in the evening to attain their object. 
 
 It must be said, further, that his generous bestowal of his legal 
 abilities upon the needy — great as was its encroachment on his time and 
 strength — was but a single phase of the spirit of self-sacrifice. The 
 words of General Burnett, " he kept himself poor by his giving, and he 
 wore his life away in this striving to help his fellow-man," ' are liter- 
 ally true. " Few men whom I have known in this city during the last 
 twenty-five years," said another, " have been as willing to forego their 
 private interests and convenience in order to contribute counsel, efforts 
 and means to advance the public good." 2 Said his pastor : " He felt 
 the sorrows and troubles and difficulties of others as if they were his 
 own, and he gave freely of his time, his money, and, what was best of 
 all, himself, to their easement. He always espoused the cause of the 
 weak, the oppressed, and the friendless, and chivalrously threw him- 
 self, like a modern Christian knight, into every scheme for the helping 
 and uplifting of men which came to his attention." 3 Another remarked: 
 " His purse, his advice, his services and his sympathies were ever at the 
 command of the poor and suffering. His tongue and his pen, his time 
 and his brain, he freely gave to the service of mankind." ' We pass 
 from this point with one final citation : 
 
 1 Address at special meeting of the Ohio Society. « Reverend Richard D. Harlan, in the New York 
 
 3 Address of Honorable O. B. Potter, at memorial Evangelist. 
 
 meeting of the Young Men's Democratic club of New 4 Address of John C. Calhoun, at memorial meeting 
 
 York. of the New York Southern Society. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORE 491 
 
 It is not too much to say, I think, that there was no man in this great city who 
 
 did more for the poor than Algernon S. Sullivan There was no organized 
 
 movement for the alleviation of suffering, for help and succor to earth's unfortu- 
 nates, which did not receive his warm, strong sympathy and his efficient aid. It was 
 known of all the good men and good women how ready he was to do all in his power 
 to help forward any good work, and so it came about that when an effort was to be 
 made to organize some charitable movement, to enlist and arouse the people in behalf 
 of some good cause, to relieve suffering, to drive out vice, to lift up the fallen, Mr. 
 Sullivan was expected, and was there, always found leading, giving expression and 
 direction to the effort. In appealing to the people in such a cause, how eloquent, 
 how pathetic he was, what sympathetic, what pleading, what tender tones in that 
 musical voice as he told of the long hours of toil, the dark days of sickness, the end- 
 less misfortunes and voiceless sufferings of the poor and the unfortunate ! ' 
 
 Mr. Sullivan's distinguishing professional character is therefore 
 exceedingly unique : — the services of one of the most able lawyers New 
 York City has ever known, not only were not uniformly employed in 
 suits of celebrity, but are largely buried with the unwritten history of 
 the lower courts in the humble litigations of the unfortunate. And 
 such was his whole-heartedness in these sacrifices, that in every in- 
 stance of the kind where the details have been ascertained, he brought 
 the same legal brilliancy, zeal, energy, careful preparation and moving 
 eloquence, which made his efforts so valuable and so effective in the 
 most weighty matters. It is this feature of his work rather than his 
 famous cases which merits peculiar mention, for here he stands alone 
 in a stern and selfish world, inviting the emulation of all men. 
 
 On the other hand, the trial of the officers and crew of the schooner 
 Savannah on the charge of piracy in 1861 — the most notable and dra- 
 matic of all Mr. Sullivan's cases — is likewise of special interest, because 
 of the attending circumstances which displayed the sterling qualities 
 of the man. This case Mr. Joseph Larocque characterized at the time 
 as " one of the most interesting trials that ever took place on the con- 
 tinent of America, if not in the civilized world." 2 The Savannah had 
 been commissioned as a privateer by a letter of marque from Jefferson 
 Davis, had captured a prize, and had been captured in turn by a fed- 
 eral brig-of war and the crew brought to New York City — not as pris- 
 oners of war, but to stand trial as pirates. President Lincoln had 
 previously announced that those operating under " pretended letters 
 of marque " from the southern states would be " held amenable to the 
 laws .... for the prevention and punishment of piracy." a The issue 
 thus raised was momentous. It was not claimed by the counsel for the 
 defence, of whom Mr. Sullivan was one, 4 that the federal government 
 was required, perforce, to recognize the confederacy as a belligerent, 
 but that since an organized and widely-recognized government cer- 
 tainly did exist de facto if not dejure, every consideration of human- 
 
 1 Address of General Henry L. Burnett. Lord, James T. Brady, Joseph H. Dukes, Isaac Davega 
 
 2 Report of the trial (New York, 1862), p. 66. and Maurice Mayer, while William M. Evarts, Samuel 
 
 3 Proclamation of April 19, 1861. Blatchford and Ethan Allen assisted United States Dis- 
 * Associated with him were Joseph Larocque, Daniel trict- Attorney E. Delafleld Smith in the prosecution. 
 
492 
 
 HISTORY OF THE BENCH AND BAK OF NEW TORE 
 
 ity and canon of civilized law demanded a practical if not a formal and 
 official recognition of the actual state of affairs, sufficient at least to 
 prevent the haling into court and trial as ordinary criminals of cap- 
 tured persons whose sole offence was that of enlisting beneath the 
 banner of a warring power and whose status was that of prisoners of 
 war. 
 
 Mr. Sullivan's connection with the case was peculiar. He had 
 been a lifelong democrat, and while he had always opposed slavery 
 and done all in his power to prevent secession, it was well known that 
 he recognized the doctrine of states' rights and did not favor a policy 
 of coercion of the south at the cost of a terrible civil war. Thus, while 
 others of the counsel had been called into the case by the prisoners or 
 
 their friends, Mr. 
 Sullivan was retain- 
 ed in their interest 
 by the attorney- 
 general of the con- 
 federate govern- 
 ment. "He was 
 thereupon charged 
 with treason, and 
 immediately after 
 the preliminary 
 hearing in July, 
 1861, was summarily arrested and cast into prison without trial or 
 examination. From this time until within a few days of the date of 
 the trial, October 23, 1861, he was kept by the federal powers closely 
 confined in Fort Lafayette, suffering severe privation, and was even 
 denied the privilege of seeing his wife and child. The indignant pro- 
 tests of the lawyers and judges of the entire nation secured his release. 
 Notwithstanding this cruel experience and the threats which hung over 
 him, he at once appeared in court to defend the case. Says one who 
 knew the facts : 
 
 FORT LAFAYETTE, 1861.. 
 
 He was called upon by many members of the bar, some distinguished and 
 learned men. He was told: "Sullivan, you must not stand here and defend these 
 gentlemen; your life is in danger; you cannot reach your home in safety if you 
 do." His simple, true and ingenuous reply was: "But I am retained as their attor- 
 ney." "That doesn't make any difference ; you must not sacrifice your life or 
 injure your life in their interest." He said: " That is a consideration which I as a 
 lawyer cannot entertain. If my clients do not desire to avail themselves of my ser- 
 vicesjhey can excuse me and employ some one else, but if they insist upon my rep- 
 resenting them, I as a man and as a lawyer must stand and do my duty." And he 
 did his duty at the request of his clients, even in the face of danger. That is, I say, 
 an indication of his moral courage. He was a beautiful character; I know of none 
 more lovely. 1 
 
 • William J. Curtis, on motion to adjourn the Court of Common Pleas in memoriam. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 493 
 
 With these facts in view, taking into account the bitter persecu- 
 tion he had just endured, his physical condition in consequence, and 
 his total lack of opportunity for preparation, let those who have 
 access to the record read the remarkable address of Mr. Sullivan in 
 summing up the defence in this trial. 1 How absolutely fearless his 
 lucid voicing of the delicate principles involved, which other counsel 
 clothed in a little more of the obscurity dictated by caution ! And yet 
 how conciliatory the whole argument, how persuasive, how entirely 
 imbued with the spirit of peace and gentleness, how absolutely devoid 
 of every "trace of the bitterness which his painful experiences must 
 necessarily have engendered in any other breast ! 
 
 Mr. Sullivan's other characteristics as a lawyer and a man may be 
 fittingly summed up in the words of a few of those who knew him 
 well. Says one : 
 
 It was his pride and pleasure as a lawyer to defend the right, and he could not 
 be retained to defend the wrong, though he might make an effort to palliate mis- 
 takes, and accord to the law its demands, discounted by mercy to one who had 
 without knowing it trespassed upon its requirements. We have known Mr. 
 Sullivan to refuse large retainers when offered to defend deliberate wrong-doers, and 
 
 to serve innocent wrong-doers without charge In short, he stood upon his 
 
 own pedestal of right and justice, regardless of the rule of the legal bar to take re- 
 tainers and throw the great power of his moral character and the influence of his 
 professional prestige into cases where it would become necessary to strive to make 
 the court swerve from its ermine purity, or to so bemuddle a jury as to close their 
 eyes to the light of truth.' 2 
 
 One of the justices before whom he had frequently argued cases 
 bears a like witness : 
 
 Of commanding appearance, kind and frank, he was always welcomed by the 
 court in any case in which he appeared, because it was felt that his learning, ability 
 and absolute truthfulness would assist the court in the trial of any question of law 
 and fact with which it had to deal. 3 
 
 Said William Winter : 
 
 His learning was varied and exact. His eloquence was natural, fluent, sweet, 
 persuasive, often impassioned, always guided by pure taste, harmonious with reason, 
 and directed upon noble objects. His veneration of the law and his high sense 
 of moral responsibility invested his manner with a peculiar grace of splendid dis- 
 tinction; and this, combined with accuracy of legal knowledge, lucidity of state- 
 ment, felicity of illustration, and copiousness of vocabulary, made him one of the 
 most impressive orators of the American bar. ' 
 
 Still more remarkable, perhaps, is the tribute in the memorial of 
 the American Bar Association : 
 
 He was a legal guide — practical, wise, judicial, with exquisite tact, with infinite 
 patience, with a sense of equity almost intuitive. Adversary and client alike felt 
 the power of his lucid, conscientious, wise advice He was recognized as one 
 
 i Eeport of the trial, pp. 218-331. 2 Letter in New Haven Journal and Courier. 
 
 8 Honorable Henry W, Boofcstaver, of the Court of Common Pleas, 
 
494 HISTORY OP THE BENCH AND BAR OF NEW YORK 
 
 of the strongest, readiest, and most successful jury lawyers at the bar. His learning 
 and tastes were so varied, however, that he was equally accomplished in the conduct 
 
 of the practical and daily duties of his profession The law was a great mother 
 
 to him. And he studied its philosophy, he pictured its principles with such love, 
 wisdom and fairness, that no lawyer envied the pre-eminent rank which he attained 
 and so easily held. It is fair to say that no lawyer, however great his fame, was 
 regarded by the bench with greater confidence and esteem. The bench itself was not 
 more sensitive than he to its dignity and honor. His life, his virtues, his judicial 
 quality, his unwavering honesty and "legal acumen led all judges to receive his words 
 almost as those of a friend of the court — not merely as those of an advocate. No 
 lawyer equalled him in the affection and admiration of the bar. No other lawyer 
 occupied so peculiarly interesting a place in their hearts. 
 
 Mr. William Nelson Cromwell, who for a long term of years was 
 one of Mr. Sullivan's professional associates, said : 
 
 Although one of the greatest, he was one of the simplest of men, with no 
 vulgar aims, and with an unswerving faith in God and humankind. 1 He was the 
 purest, sweetest, wisest man of his time. For nearly fifteen years I have been look- 
 ing daily into his heart, and during all those years and under the thousand tempta- 
 tions of a busy life, professional, social, political, I never found there even remotest 
 approach to sin. Not an unkind or harsh word to any human being, nor a false- 
 hood, not a bitter thing, not a profane or indelicate thought ever passed those lips. 
 Always gracious and altogether lovely ; putting aside, not putting forward, his own 
 great personality ; reaching out both hands in constant helpfulness to men. 
 
 This is not the tribute of affection, nor its exaggeration ; I mean my thoughts 
 to be literally and exactly taken. Of whom else, man or woman, in all this world, 
 could this be honestly witnessed? Unlike most great men, he grew greater the 
 nearer we approached him. These qualities were stamped by God on his noble face, 
 and were shown in every act of his daily life, so that all men who met him went 
 away somehow refreshed and ennobled. Such a life cannot be phrased, it can only 
 be loved ; such a life cannot die ; such an influence is more potent than man himself. 
 
 UTHERLAND, JOSIAH (born in Stanford, Dutchess county, 
 New York, in 1807 ; died in New York City, May 25, 1887)', 
 was graduated from Union College, studied law in Waterf ord 
 and Hudson, and commenced practice in Livingston. He 
 was for twelve years district-attorney of Columbia county, was subse- 
 quently elected to the 32d congress, and in 1857 came to New York 
 City, where he entered into partnership with Claudius M. Monell. He 
 was elected a justice of the Supreme Court of the 8th judicial district 
 for six years, to fill the vacancy occasioned by the resignation of Jus- 
 tice Whiting. In 1863 he was re-elected for the full term of eight 
 years. In 1872 he succeeded Judge Bedford, and was for a number of 
 years presiding judge of the Court of General Sessions. From 1879 
 
 1 His standard of life is well set forth in his own and disinterested service of his fellow-beings that he 
 
 words, written on a scrap of paper found in his office most surely strengthens and idealizes his own nature, 
 
 desk after his death: "The realization of the ideal The hero has here a field of conquest assigned to him, 
 
 life is the great design of God, and the great work of in which he need fear no defeat and will not have to 
 
 man. The advancement and elevation of humanity is weep over tarnished or dear-bought victory. He is a 
 
 most surely promoted by whatever best and permanently fellow-worktr with God.," 
 develops the individual man. It is by the enlightened 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 495 
 
 until his retirement from active business he practiced law, associated 
 with Francis M. Scott. 
 
 In all the positions held by Judge Sutherland he was characterized 
 by the highest integrity and great force of character. Upon his retire- 
 ment from the bench in 1878 a reception was given him by the mem- 
 bers of the New York City bar, at which exceptionally marked tributes 
 of praise were bestowed. 
 
 AILER, HENRY A. (born in New York City in 1833 ; died 
 there, March 15, 1878), was graduated at Columbia Law 
 School in 1852 at the head of his class. The next two years 
 he visited Europe and studied civil law at the universities 
 of Bonn and Heidelberg, acquiring at the same time a thorough knowl- 
 edge of the French and German languages and literature. Returning 
 to New York he completed his legal education with the firm of Kent, 
 Eaton & Kent, was admitted to the bar, and upon the death of Mr. 
 Kent became a member of that firm, the name changing to Eaton, 
 Davis & Tailer. Upon the retirement of J. C. Bancroft Davis it be- 
 came Eaton & Tailer. Aside from his legal attainments, which were of 
 a high order, he was distinguished for refined literary taste and for 
 the purity and integrity of his character. 
 
 ALCOTT, JOHN L. (born in western New York ; died in 
 Buffalo, January 20, 1887), ranked for many years as one of 
 the most eminent lawyers of the state. He was elected jus- 
 tice of the Supreme Court for the 8th judicial district, Nov- 
 ember 2, 1S69, and served for a term of fourteen years. He was ap- 
 pointed associate- justice of the general term for the 4th department, 
 December 25, 1870, and on November 15, 1881, was chosen presiding 
 judge, occupying that position until his term expired. He passed his 
 subsequent life in retirement from active professional life. 
 
 ALLMADGE, FREDERICK AUGUSTUS (born in Litchfield, 
 Connecticut, August 29, 1792 ; died there, September 17, 
 1869), was a Yale graduate, was prepared for the legal pro- 
 fession at the Litchfield Law School, and came to New York 
 to practice. He served in the boards of aldermen and councilmen, the 
 state senate (becoming president of that body and ex officio judge of 
 the Court of Errors), and congress (1847 to 1849). He was recorder 
 of the city from 1841 to 1846, and from 1848 to 1851, and in that office 
 made a memorable record in dealing with the Astor place riots. He 
 was also general superintendent of the metropolitan board of police 
 (1857-62) and clerk of the Court of Appeals (1862-65). 
 
496 
 
 HISTOEY OF THE BENCH AND BAR OP NEW YOKK 
 
 ALLMADGE, JAMES (born in Stanford, Dutchess county, 
 New York, January 28, 1778 ; died in New York City, Sep- 
 tember 29, 1853), the son of Colonel James Tallmadge, of the 
 Revolution, was graduated in 1798 at Brown, and after being 
 admitted to the bar was a practitioner in Poughkeepsie and New York 
 City. He was for a while Governor George Clinton's private secretary, 
 and served in congress (1817-19), as lieutenant-governor of New York 
 (1825-26) and as a member of the constitutional conventions of 1821 
 and 1 846. In congress he made a notable speech on the question of 
 Missouri's admission, in which he opposed slavery extension. He was 
 one of the founders of the University of the City of New York, a 
 founder and president of the American Institute and an ardent advo- 
 cate of protection. His daughter married Philip S. Van Rensselaer. 
 
 1HOMPSON, SMITH (born in Stanford, Dutchess county, 
 New York, January 17, 1768 ; died in Poughkeepsie, New 
 York, December 18, 1843), was graduated at Princeton Col- 
 lege in 1788, and was a law student under James Kent (after- 
 ward chancellor). He was admitted to the bar in 1792, and after 
 practicing in Troy went to Poughkeepsie. He was a delegate to the 
 
 constitutional convention 
 of 1801, and in 1802 be- 
 came associate-justice of 
 the Supreme Court of 
 the state, having a short 
 time previously declined 
 appointment as attorney 
 for the middle district of 
 New York. While serv- 
 ing on the supreme 
 bench he was selected 
 mayor of the City of New 
 York, but he refused to 
 accept that office. From 
 1816 to 1818 he was chief- 
 justice of the court. In 
 the latter year he was 
 appointed secretary of 
 the navy by President 
 Monroe. He succeeded, 
 in 1823, Brockholst Liv- 
 ingston as associate-ius- 
 tice of the Supreme Court of the United States, remaining on that 
 bench for the rest of his life — a period of twenty years. 
 
 Justice Thompson holds a high rank in the jurisprudence of his 
 
 -rrytxipTL. 
 
HISTORY OF THE BENCH AND BAR OF STEW YORK 497 
 
 native state and of the United States. His opinions are especially 
 marked by great learning in the law. 
 
 |pHl|HROOP, ENOS THOMPSON (born in Johnstown, Mont- 
 jjflpfc gomery county, New York, August 21, 1784; died at his 
 HHl; country residence, Willowbrook, near Auburn, New York, 
 November 1, 1874), was admitted to the bar at Albany in 
 1806, having received a classical and legal education. Beginning 
 practice at Auburn, he enjoyed professional success, and also became 
 active and prominent in politics. After holding local offices he served 
 part of a term in congress (1815-16), but was defeated for re-election. 
 From 1823 to 1828 he sat on the circuit bench of the state, resigning to 
 become lieutenant-governor, at the solicitation of Martin Van Buren, 
 who at the same time was elected governor. Upon Mr. Yan Buren's 
 appointment as secretary of state by President Jackson, Judge Throop 
 succeeded to the governorship. He was re-elected in 1830, but de- 
 clined another election in 1832. From 1833 to 1838 he was naval 
 officer at the port of New York, and from 1838 to 1842 was charge 
 d'affaires at Naples. Returning to the United States he went into 
 retirement, devoting himself to agricultural pursuits for the remainder 
 of his life. 
 
 HROOP, MONTGOMERY HUNT (born in Auburn, New 
 York, January 26, 1827 ; died in Albany, New York, Septem- 
 ber 11, 1892), was a nephew of Governor Throop and a son of 
 George B. Throop, a well-known lawyer and banker. His 
 mother was a sister of Ward Hunt, the distinguished chief-judge of 
 the Court of Appeals and associate- justice of the United States Su- 
 preme Court. He attended Geneva (now Hobart) College, but did not 
 complete his course, and soon afterward began the study of law. in the 
 office of his uncle, Ward Hunt. After his admission to the bar he 
 practiced for a time at Utica with Mr. Hunt, and then removed to 
 Michigan, but after two years he returned to Utica, forming an 
 association with Roscoe Conkling, which lasted for seven years. He 
 then went to New York City. 
 
 In 1870 he was appointed on the commission to revise the laws, 
 from whose labors resulted the present code of civil procedure. He 
 was chairman of this commission until the completion of its Work, and 
 was its most active member. 
 
 From 1880 until his death he lived in Albany, devoting himself to 
 legal authorship. His published works include " A Treatise on the 
 Validity of Verbal Agreements as Affected by the Legislative Enact- 
 ments in England and the United States, commonly called Statutes of 
 Frauds " (1876), " The New Revision of the Statutes of New York : 
 
498 HISTORY OF THE BENCH AND BAB OF NEW YORK 
 
 the Code of Eemedial Justice, with Explanatory Notes," " The New 
 York Justices' Manual," " Digest of Massachusetts Reports, 1804-86 " 
 (1887), and " A Treatise on the Law Relating to Public Offices and 
 Sureties on Official Bonds " (1892). 
 
 IMILDEN, SAMUEL JONES (born in New Lebanon, New York, 
 rthai February 9, 1814 ; died at his country residence, Greystone, 
 gjgjll Westchester county, New York, August 4, 1886), was a de- 
 
 scendant of Nathaniel Tilden, of Tenterden, England, who 
 
 emigrated to New England in 1634, settling in Scituate, Massachusetts. 
 Mr. Tilden's father, Elam Tilden, was a farmer, who also carried on a 
 mercantile business and enjoyed the personal friendship of Martin 
 Van Buren. The son at an early age displayed high intellectual quali- 
 ties, but was very delicate physically, and throughout his life he suffered 
 the disadvantage of a frail constitution. He entered Yale College at 
 the age of seventeen, but in consequence of poor health was obliged to 
 abandon his studies. Later he attended the University of the City of 
 New York and prepared himself for the bar. From the time of his 
 admission (1841) until he attained commanding prominence in public life 
 — a period of more than thirty years— he devoted himself uninterrupt- 
 edly and with steadily increasing success to his profession. Although 
 he was constantly interested in politics and gave very close attention 
 to the details of party concerns, his distinctive character until the 
 seventies was uniformly that of a lawyer and not of a public man. 
 Indeed, he held none but minor offices in all that time — member of the 
 assembly in 1845 and 1846, delegate to the constitutional convention of 
 1846 (in which he opposed the programme of an elective judiciary), and, 
 for a time, corporation attorney of the City of New York. 
 
 Mr. Tilden soon became a recognized, specialist in municipal law 
 and obtained a lucrative practice from contractors. His remarkable 
 mathematical abilities were of great value to him in this variety of 
 practice. He also was highly proficient in conveyancing, noted for his 
 unfailing accuracy. In the celebrated quo warranto case of Giles vs. 
 Flagg and the suit of the heirs of Doctor Burdell, contesting the claim 
 of Mrs. Cunningham to administer upon the Burdell estate, his con- 
 summate skill in dealing with matters of extreme intricacy was strik- 
 ingly displayed. From 1858 to 1875 he was employed as counsel by 
 many great railway corporations. An especially memorable suit 
 which he successfully conducted was that of the Delaware & Hud- 
 son Canal Company against the Pennsylvania Coal Company. During 
 the war he was frequently summoned to Washington to consult with 
 Secretary Stanton, who had a very high opinion of his legal accomplish- 
 ments. Governor Horatio Seymour also frequently sought his profes- 
 sional advice— particularly during the draft riots of 1863. In the half- 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 499 
 
 dozen years following the close of the war he closely pursued his pro- 
 fession, refusing more retainers than he accepted. . 
 
 Mr. William Allen Butler, in a brief memorial of Mr. Tilden, 
 speaks as follows of his special character as a lawyer : 
 
 Never identified with the general practice of the profession or seeking a large 
 clientage, he became a master of the law as a science and an acknowledged authority 
 in one of its branches most closely allied with the main sources of our national 
 prosperity. Without special forensic ability, he gained, in conspicuous cases, signal 
 
 victories at the bar He believed in the potency of definite facts as the best 
 
 means of producing conviction in the minds of men, and would say that to this end 
 he would rather have one fact than a column of rhetoric. But it was the facts under- 
 lying and out of sight and undiscoverable, except by long and patient labor, which 
 seemed especially to attract him and to furnish a kind of native stimulus to his keen 
 perceptions, which he trained for service in the dark. This gave him a rare and, in 
 
 some respects, an unequalled power He followed his profession according to 
 
 an elective method as to the cases he undertook, which would have been fatal to men 
 of less ability. His clients must bide his time for examination and action, and he 
 must have his own way of dealing with the cause. This made him less conversant 
 with the courts than with the consultation-room, and yet, on occasion, as in the 
 famous Burdell case, he was found fully equipped for the active conflicts of the bar. ' 
 
 Mr. Tilden's rise to eminence in political life was the direct se- 
 quence of the exercise of his great professional abilities for the purifi- 
 cation of the municipal government and the judiciary of the City of 
 New York. He was one of the signers of the circular which led to the 
 organization of the Association of the Bar and delivered a stirring 
 speech at the bar meeting of February 1, 1870." In all the subsequent 
 proceedings against the Tweed ring and the corrupt judges he was one 
 of the most conspicuous and aggressive citizens, and the resulting 
 achievement was in large measure his individual performance. In 
 1871 he accepted an election to the assembly for the express purpose 
 of carrying forward the impeachment proceedings against Judges 
 Barnard, Cardozo and McCunn. 
 
 In 1874 he was elected governor of New York over John A. Dix 
 by a majority of 50,000. In that office he chiefly distinguished himself 
 by his policy of correcting abuses and corruption in the management 
 of the state canals. He was nominated for president in 1876 by the 
 democratic party. The canvass resulted in a disputed election, which, 
 as finally adjudicated by the extra-constitutional electoral commission, 
 gave Mr. Tilden 184 electoral votes to 185 for Mr. Hayes. Afterward 
 he lived in retirement, though continuing to manifest a dignified in- 
 terest in important public affairs. He left in his will the greater part 
 of his large fortune for the creation of a free public library— a bequest 
 that became a matter of active litigation in the state courts. 
 
 i Annual Eeport o£ the Association of the Bar of the City of flew York, 1887. 
 3 See p. 196 of this volume. 
 
500 
 
 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 ILLMAN, SAMUEL DYER (born in Utica, New York, April 
 1, 1815; .died in New York City, September 4, 1875), was 
 admitted to the bar in Canandaigua, New York, after bis 
 graduation from Union College. He practiced for sixteen 
 years in Seneca Falls, and then retired from the legal profession and 
 removed to New York. There he devoted himself to scientific pursuits 
 in connection with the American Institute. He invented several valu- 
 able scientific appliances, and wrote essays on technical subjects. 
 
 OMPKINS, DANIEL D. (born in Fox Meadows, now Scars- 
 dale, Westchester county, New York, June 21, 1774; died on 
 Staten Island, June 11, 1825), was the son of Jonathan G-. 
 Tompkins, a farmer. After being graduated at Columbia 
 College (1795) he fitted himself for the law. He was admitted to the 
 bar in 1797, and soon took rank with the able practitioners of New 
 ^^^^^__, ^^^^^^ York City. He also speedily 
 
 I^^^^g^ became a leading man in the 
 
 politics of the day, devoted to 
 the anti-federalist party. He 
 was a member of the state con- 
 stitutional convention of 1801, 
 and in 1804 was chosen a repre- 
 sentative in congress, but he 
 resigned that office to become an 
 associate justice of the Supreme 
 Court of the state. This posi- 
 tion he likewise resigned, hav- 
 ing been nominated for gov- 
 ernor. He was elected (1807), 
 and four times re-elected, serv- 
 ing until January, 1817, when 
 he retired to assume the duties 
 of vice-president of the United 
 States. His last official act as 
 governor was a message to the 
 legislature recommending the 
 fixing of a day for the abolition 
 of slavery, and that body ac- 
 cordingly appointed the 4th of 
 July, 1827. In 1820 he was once more elected vice-president. In 
 1821 he sat in the state constitutional convention. The closing years 
 of his life were clouded by charges reflecting upon his integrity in 
 office. 
 
red "by J.C.BriW- 
 
 
 xt^w /3^ 
 
 ^^ 
 
HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 501 
 
 RACY, ALBERT HALLER (born in Norwich, Connecticut, 
 June 17, 1793; died in Buffalo, New York, September 12, 1859), 
 was the son of Phineas Lyman Tracy, a prominent lawyer 
 and public man of Batavia, New York. The son at first 
 studied for the medical profession, but afterward chose a legal career, 
 being admitted to the bar in 1815, and beginning practice in Buffalo. 
 He served with ability in congress for six years from 1 819, and in the 
 state senate for the same number of years, being elected to the latter 
 body in 1 830. As a state senator he was a member of the court of final 
 jurisdiction, and the opinions and decisions that he delivered in that 
 capacity enjoy specially high reputation in the legal literature of the 
 state. 
 
 RACY, CHARLES (born in Whitestown, Oneida county, New 
 York, February 17, 1810 ; died in New York City, June 1, 
 1885), was a son of William Gedney Tracy, a Whitestown 
 merchant. He was prepared for college at Partridge's Mili- 
 tary Academy, was graduated at Yale in 1832, and studied law under 
 Henry R. Storrs and Henry A. Poster. r Being admitted to the bar, he 
 practiced in Utica until 1849 r , when he removed to- New York, where, 
 after a brief partnership witli Edwin C. Litchfield, he formed an asso- 
 ciation withW. Howard Wait and Dwight H.JOlmstead. 
 
 In his career of forty years at the metropolitan bar, Mr, Tracy was 
 employed largely in corporation business, especially as counsel for 
 railway companies. He was attorney for the Chicago, Rock Island & 
 Pacific Railroad, the Union Pacific, and many others, as also for the 
 United States Mortgage Company. He was regarded as one of the 
 very ablest members of the profession. He was a man of literary tastes 
 and scholarly refinement, and, although never actively engaged in pub- 
 lic life, was earnestly devoted to the cause of good government. He 
 was one of the founders of the Association of the Bar. 
 
 His brother, William Tracy, was also an able and well-known law- 
 yer, for a time associated with him professionally. 
 
 RACY, JEREMIAH EVARTS, son of Ebenezer Carter Tracy 
 and Martha Sherman Evarts, 1 was born in Windsor, Vermont, 
 January 31, 1835. He is of an old New England family, 
 being sixth in lineal descent from Stephen Tracy 3 who came 
 in the ship Ann from England to Plymouth, Massachusetts, in 1623. 
 
 i Martha Sherman Evarts was a daughter of Jeremiah 
 Evarts and Mehitabel Sherman, and a granddaughter of 
 Roger Sherman, who, among the patriots of the revolu- 
 tionary period, has the unique distinction of having 
 been the only signer of all four of the great national 
 compacts, to wit: the association of 1774, the declaration 
 of independence, the articles of confederation, and the 
 constitution of the United States. 
 
 3 As follows : Stephen, as above; John 2 , who married 
 Mary Prence, a (laughter of Thomas Prence, who came 
 from England in the ship Fortune in 1021, and after- 
 ward became governor of Plymouth colony ; Stephen 
 (2d) s ; Thomas 4 ; Joseph 5 ; Ebenezer Carter 8 ; Jere- 
 miah Evarts'. 
 
502 HISTORY OE THE BENCH AND BAR OF NEW YORK 
 
 Mr. Tracy's father was the founder, editor and publisher of the 
 Vermont Chronicle, a religious newspaper of extensive influence 
 throughout the state, which he conducted for more than thirty years, 
 and until his death (May 15, 1862). His mother died April 10,4889. 
 Mr. Tracy is one of eight children, three of whom have died, one in 
 infancy, and another, Martha Day, at the age of nineteen — the third, 
 William Carter, an officer in the union army, being killed in the war of 
 the rebellion. He has living one sister, Anna, wife of Reverend George 
 P. Byington, a clergyman settled in Vermont, and three brothers, 
 Roger Sherman, a physician, now registrar of records of the depart- 
 ment of health in New York City, John Jay, a lawyer in Tennessee, 
 and Charles Walker, who is in business in Portland, Oregon. 
 
 Jeremiah Evarts Tracy received his early education in his native 
 state, Vermont. At an early age he began the study of the law in the 
 office of his uncle, William M. Evarts, in the City of New York, and 
 having continued his studies in New Haven, Connecticut, he received 
 from Yale College the degree of LL.B. in 1857, having previously, in 
 1856, been admitted to the bar in New York a few days after attaining 
 his majority. 
 
 Upon leaving New Haven he became an assistant in the office of 
 Mr. Evarts, and on June 1, 1859, he was admitted to partnership with 
 him in the practice of the law. This partnership with Mr. Evarts and 
 others has ever since continued — the present firm (1897) being known 
 as Evarts, Choate & Beam an, and consisting of William M. Evarts, 
 Joseph H. Choate, Charles C. Beaman, J. Evarts Tracy, Treadwell 
 Cleveland, Prescott Hall Butler and Allen W. Evarts. 
 
 Mr. Tracy was married September 30, 1 863, to Miss Martha Sher- 
 man Greene, and has nine children, Emily Baldwin, Howard Crosby (a 
 lawyer practicing in New York City), Evarts (an architect in New York 
 City), Mary Evarts, Margaret Louisa, Robert Storer (who has recently 
 been graduated from the College of Physicians and Surgeons in New 
 York and is now an assistant on the surgical side in the New York 
 Hospital), Edith Hastings, Martha (now a student in Bryn Mawr 
 College), and William Evarts (now a student in Yale College). 
 
 In 1874 Mr. Tracy removed his residence from New York to Plain- 
 field, New Jersey, which has since been his home. While continuing 
 the practice of the law in the City of New York he has not failed to 
 manifest interest in the affairs of Plainfield. He has served at different 
 times as a member and as president of the common council of the city, 
 and has been for many years one of the directors of the Plainfield 
 Public Library and one of the governors of Muhlenberg Hospital, 
 located there. 
 
 He is a member of the New York City and State Bar Associations, 
 of the committee of counsel of the Lawyers' Title Insurance Company 
 of New York, of the Yale Alumni Society and of the New York Law 
 Institute. 
 
HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 503 
 
 He is also a member of the military order of the Loyal Legion of 
 the United States and of the Empire State Society of the Sons of the 
 American Revolution. 
 
 RED WELL, THOMAS (born in Smithtown, Long Island, in 
 1742 ; died in Plattsburg, JSTew York, January 30, 1832), was 
 a prominent New York State politician and lawyer of his 
 time. He was an original proprietor of Plattsburg, was a 
 member of the early provincial congresses (being one of the framers of 
 the state constitution), was a delegate to the state convention of 1788 
 that ratified the federal constitution, sat in the state constitutional 
 convention of 1801, was a judge of probate and a surrogate of Suffolk 
 county and also of Clinton county, and served in both the assembly 
 and the senate of the state. 
 
 
 REMAIN, LYMAN" (born in Durham, Greene county, New 
 York, June 14, 1819 ; died in New York City, November 30, 
 1878), was admitted to practice law in 1840. He held local 
 offices in his native county, including those of district-attor- 
 ney and surrogate, and later removed to Albany and from there to 
 New York City. He was elected attorney-general of the state in 
 1858, and served in the assembly (1866-68) and in congress (1873-75). 
 
 His son, Grenville Tremain (born in Durham, Greene county, New 
 York, April 19, 1845; died in New York City, March 14, 1878), inher- 
 ited his legal abilities, became a member of the firm of Peckham & 
 Tremain, in Albany, was the republican candidate for attorney-general 
 in 1877, and had the promise of a very eminent career at the bar at the 
 time of his early and sudden death. 
 
 ROUP, ROBERT (born in New York City in 1757 ; died there, 
 January 14, 1832), was graduated at Columbia College in 
 1774 and began the study of law under John Jay, but dis- 
 continued it to enter the revolutionary army, in which he 
 served with distinction. From February, 1778, until 1779 he was 
 secretary of the board of war by the appointment of congress. He 
 finished his professional studies with Judge William Patterson, of 
 New Jersey. For a number of years he was judge of the United States 
 District Court of New York. In politics he was an adherent of Alex- 
 ander Hamilton, whose personal friendship he enjoyed. 
 
 UDOR, JOHN", was one of the earliest of the English colonial 
 lawyers, and was recorder of the City of New York from 
 1704 to 1710. He practiced for many years in the Mayor's 
 Court, upon whose records his name frequently appears. He 
 
 died in 1715. 
 
504 HISTORY OF THE BENCH AND BAK OE NEW YORK 
 
 LSHOEFFEK, MICHAEL (born in New York City, March 30, 
 1793 ; died there, September 6, 1881), was the son of George 
 Ulshoeffer, a native of the margravate of Anspach and Bay- 
 reuth, who during the American Eevolution was forced into 
 the British service and subsequently became a citizen of the republic. 
 The son, after studying in the office of T. W. Smith, was admitted to 
 the bar in 1813. He soon obtained a recognized position in the profes- 
 sion. From 1818 to 1822 he served in the assembly. In that body he 
 was a champion of the bill to revise the state constitution, and wrote 
 a very able reply to Chancellor Kent's opinion disapproving the 
 measure. 1 He became corporation-attorney in 1821, and corporation- 
 counsel in 1825, occupying the latter office until 1 829. 
 
 He was appointed judge of the Court of Common Pleas in 1834, 
 reappointed in 1843, and elected a member of that bench in 1846, under 
 the new constitution. He retired at the end of 1849, and afterward, 
 although he did not resume his practice, was frequently selected as a 
 referee and arbitrator. He continued a prominent citizen for many 
 years. _^ 
 
 PTON, FRANCIS HENRY (born in Salem, Massachusetts, 
 May 25, 1814 ; died in New York City, June 25, 1876), was 
 descended from John Upton, one of the very early settlers of 
 New England. He took the legal course at Harvard, grad- 
 uating from the law school in 1835, and, establishing himself in 
 New York, gained professional prominence. He wrote several im- 
 portant legal works, including "A Treatise on the Law of Trade 
 Marks " (1860), and " The Law of Nations Affecting Commerce during 
 War " (1863). In the war he was counsel for captors in prize courts. 
 
 AN BUREN, JOHN (born in Hudson, Columbia county, New 
 York, January 18, 1810 ; died on shipboard in October, 
 1866), was the son of Martin Van Buren. He was educated 
 at Kinderhook Academy and Yale College, graduating from 
 the latter in 1828. He then entered the law office of Benjamin F. 
 Butler, where he proved an apt pupil and of valuable service to his 
 preceptor. His legal studies were interrupted by the appointment of 
 his father as minister to the British court and his own selection as 
 secretary to the legation, having previously, in September, 1830, been 
 admitted to the bar. He passed part of the years 1831 and 1832 in 
 London, becoming especially popular from his winning ways in fash- 
 ionable society. At a court ball he danced with the Princess Victoria, 
 a circumstance which fastened upon him his popular title of " Prince 
 John." 
 
 In 1832 he opened an office in Albany under fortunate circum- 
 
 1 See p. 125 of this volume. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 505 
 
 stances and influences that soon led to very successful practice even at 
 a bar noted for its learning and brilliancy. Among his early cases 
 were Johnson vs. Hurst (11 Wendell, 137), in which he succeeded 
 against the veteran Marcus T. Reynolds ; Feeter vs. Keats (11 Wendell, 
 47), which terminated in the Court of Errors ; Hoyt vs. Blair (12 
 Wendell, 196), and Olney vs. Devoe (Id., 228). He was one of the counsel 
 associated with the attorney-general in the celebrated case of People, 
 on the relation of George Tibbets, vs. Canal Commissioner (13 Wendell, 
 335). He prepared the brief for the plaintiff in the great case of 
 Carter vs. Lorillard, which after a long contest was finally decided in 
 the Court of Errors. He continued his practice at the Albany bar 
 until 1836, when, after a brief period at Washington, he removed to 
 New York City. On February 3, 1845, he was elected by the state 
 legislature attorney-general. In that office he tried many important 
 cases for the state. Among them was the case of Doctor Boughton, or 
 " Big Thunder," the leader of the anti-renters, during which an alterca- 
 tion between Van Buren and the opposing lawy gr. resulted in the 
 jailing of both of them for twenty-four hours. Other cases were those of 
 Henry Wyatt, indicted and tried for an atrocious murder in Auburn 
 prison, and of the negro Freeman, for the murder of the Yan Ness 
 family. In both these cases Mr. Yan Buren was opposed by William 
 H. Seward, and the widest interest was excited in the great legal con- 
 tests waged. Wyatt was convicted and executed, and Freeman was 
 convicted and sentenced, but got a new trial, dying while it was pend- 
 ing. In the protracted Forrest divorce case, commencing in December, 
 1851, Mr. Yan Buren met Charles O'Conor as an opponent, and though 
 defeated added greatly to his legal renown. Daniel Lord, who listened 
 to the final argument in the Court of Appeals, said : " I can say of 
 Yan Buren as a speaker at the bar, as Judge Story said of William 
 Pinckney, ' He possesses, beyond any man I ever knew, the power of 
 eloquent, illustrative amplification, united with close, flexible logic' " 
 
 Mr. Yan Buren continued his practice at the bar, with increasing 
 reputation, until soon before his death. The political field had but 
 little attraction for him. Except in the memorable contests between 
 the barnburners and hunkers, in 1847-48, he took no active part in 
 politics. Early in 1866, his health being greatly impaired, he visited 
 Europe for change of climate. Failing of relief, in October following 
 he embarked on the steamer Scotia for home. He died during the 
 voyage. 
 
 ]AN BUREN, MARTIN, eighth president of the United States 
 (born in Kinderhook, Columbia county, New York, Decem- 
 ber 5, 1782 ; died there, July 24, 1862), was the son of a farmer, 
 Abraham Yan Buren. He received but slight education, 
 and at fourteen entered the office of Francis Sylvester, a rural prac- 
 titioner of the law. As a youth he manifested great perseverance and 
 
506 HISTORY OF THE BENCH AND BAR OP NEW YORK 
 
 intelligence in mastering the principles and practice of the profession. 
 At the age of twenty he became a student under William P. Van Ness 
 in the City of New York, and being admitted to the bar in the next 
 year (1803) he returned to his native town and formed a professional 
 association with a step-brother. He very soon made his influence felt, 
 both as a lawyer and in politics. His progress to political distinction 
 of the first order was gradual, and meantime he built up a very sub- 
 stantial reputation in the line of his profession. He was surrogate of 
 Columbia county from 1808 to 1813, was a member of the Court of 
 Errors during his service as state senator (1813 to 1816), and was 
 attorney-general of the state for four years from 1815. In 1817 he 
 established a law firm in Albany with Benjamin F. Butler, who had 
 been his pupil. Mr. William Allen Butler, son of Benjamin F. Butler, 
 writing of this association, says of Mr. Van Buren as a lawyer : 
 
 Mr. Van Buren's standing and repute as a lawyer were greater than is gener- 
 ally supposed. His later conspicuous career, culminating in the presidency, has 
 obscured his early brilliant record as a lawyer. In fact, he was, during his active 
 practice and until his exclusive devotion to public affairs, at the very front of the 
 bar, succeeding Abraham Van Vechten and preceding Thomas J. Oakley as attorney- 
 general of the state at a time when leadership in the profession was an essential 
 qualification for the place, and competing in forensic struggles with the ablest ad- 
 vocates. The terse and frank admission of his great rival, Blisha Williams, the 
 incomparable jury lawyer of his time, that while he got all the verdicts, Van Buren 
 got all the judgments, was only a fair tribute to his ascendency. 1 
 
 In a work devoted specially to the history and the notable charac- 
 ters of the New York bar and bench, it is not possible, within the 
 limited space, to even fairly epitomize the general aspects of the lives 
 of the numerous great public men who have adorned the legal pro- 
 fession in this state. It must suffice to merely summarize the leading 
 subsequent events of Mr. Van Buren's career. 
 
 He was elected United States senator from New York on February 
 6, 1821, and re-elected in 1827, but, being chosen governor the next 
 year, resigned his seat. Early in 1829 he resigned as governor to be- 
 come secretary of state in the Jackson administration. In 1831 he 
 went to England as United States minister, but when the senate met it 
 refused to confirm him in that position. Eeturning, he was elected 
 vice-president in 1832. In 1836 he was chosen president to succeed 
 Jackson, but he was beaten by General Harrison when a candidate for 
 re-election in 1840. He was the presidential candidate of the free-soil 
 democrats in 1848, but received no electoral votes. 
 
 ||AN COETLANDT, STEPHANUS (born in New York City- 
 then New Amsterdam— May 4, 1643 ; died there, November 
 25, 1700), was a son of Olofl Van Oortlandt, founder of the 
 family, who came to America in 1638, in the service of the 
 Dutch West India Company, and was very prominent in the affairs 
 
 1 " The Revision ana the Revisers " (New York and Albany, 1889), p. 15. 
 
HISTORY OF THE BENCH AND BAE OE NEW YORK 
 
 507 
 
 of New Amsterdam. Stephanus was the first and only lord of Van 
 Cortlandt manor, to which dignity his estate was elevated by letters 
 patent of William III., dated June 17, 1697. He was probably the 
 most distinguished and able New Yorker of the seventeenth century, 
 and he filled nearly every important office in the colony except that of 
 governor. At the time of the surrender of New Amsterdam to the 
 English, in 1664, he was just completing his twenty-first year, and he 
 immediately rose to prominence under the new regime. 
 
 Although a merchant, he early filled leading judicial positions. 
 He was appointed a member of the Court of Assizes, created upon the 
 promulgation of the 
 "Duke's laws." He 
 also served as judge 
 of admiralty, judge 
 of the common pleas 
 of Kings ' county, 
 and, for a brief time 
 previously to his 
 death, justice of the 
 provincial Supreme 
 Court. He became 
 mayor of New York 
 in 1677, being the 
 first native Amer- 
 ican to hold that 
 office, and he was again mayor in 1686 and 1687. In all his numerous 
 public employments he enjoyed the confidence of the governors and the 
 home administration in England. He erected a residence on the north- 
 ern shore of Croton bay, which is one of the most venerable and most 
 famous houses now standing upon the borders of the Hudson river. 
 
 VAN CORTLANDT MANSION, KINGSBRIDUE. 
 
 sjANDERPOEL, AARON (born in Kinderhook, New York, 
 February 5, 1799 ; died in New York City, July 18, 1871), 
 was admitted to the bar, and after serving several terms in 
 congress (1826-30, 1833-87 and 1839-41) removed from Kinder- 
 hook to New York City, where for eight years from 1842 he was a 
 justice of the Superior Court. 
 
 ANDERPOEL, AARON J. (born in Kinderhook, New York, 
 August 18, 1825 ; died in Paris, France, August 23, 1887), 
 was a nephew of the preceding and a son of Doctor John 
 Vanderpoel, a successful physician. He was graduated in 
 1843 at the University of the City of New York, and began the study 
 of law at Kinderhook, completing his preparation in the office of 
 
508 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 William Curtis Noyes. After two years of practice at the Columbia 
 county bar he removed to New York (1848) and formed an association 
 with J. Bryce Smith. He was afterward in partnership with Augustus 
 L. Brown and A. Oakey Hall, in the firm of Brown, Hall & Vanderpoel 
 (founded in 1853), which continued for twenty years, being succeeded 
 by Yanderpoel, Green & Cuming. 
 
 Mr. Vanderpoel's entire energies were devoted to the enormous 
 business of these two great firms. He steadfastly refused to be a 
 candidate for office, and even the proffer of a nomination to the bench 
 of the Court of Appeals (1885) could not tempt him to relinquish his 
 professional practice. He was equally able and successful as an 
 advocate and a consulting counsel. It is said that he tried more causes 
 before juries than any other lawyer of his time. His conduct of a suit at 
 nisi prius was characterized by tact and sound judgment — by clearness 
 and conciseness in stating facts, and strong logic in supporting them. 
 He wholly lacked the oratorical arts. In consultation he promptly 
 grasped all that was important and material in a case, and was remark- 
 ably judicious in determining its best possible presentation. 
 
 HHIAN NESS, WILLIAM PETER (born in Ghent, New York, in 
 WUm 1778 ; died in New York City, September 6, 1826), was a 
 ^Pf; friend and partisan of Aaron Burr, being his second in the 
 ^^^ d ue ] w ith Hamilton, and was prominent at the New York 
 bar, and as a judge, during the first quarter of the nineteenth century. 
 He was graduated in 1797 at Columbia College. From 1812 until his 
 death he was judge of the United States District Court for southern 
 New York. He wrote a pamphlet in vindication of Burr (1803), and 
 published also "Laws of New York, with Notes" (2 vols., 1813), and 
 "Reports of Two Cases in the Prize Court for New York District" 
 (1814). 
 
 His brother, Cornelius Peter Van Ness, was an eminent jurist of 
 Vermont, became chief-justice and governor of that state, and was 
 United States minister to Spain from 1829 to 1837. Later (1844-45) he 
 was collector of the port of New York. 
 
 fgjpj|AN NESS, WILLTAM W. (born in Claverack, New York, in 
 gyp 1776 ; died in Charleston, South Carolina, February 27,1823), 
 frogf; a cousin of the preceding, after practicing at Claverack and 
 ^^^^ Hudson, was appointed in 1807 justice of the state Supreme 
 Court. The legislature, in 1820, tried him on the charge of using his 
 office to obtain the charter of the American bank, and, although a 
 verdict of acquittal was rendered, he was removed in 1822. He was a 
 federalist leader and had a reputation for great ability and shrewdness. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 509 
 
 AN SCHAACK, PETER (born in Kinderhook, New York, in 
 March, 1747; died there, September 17, 1832), one of the 
 most famous lawyers of the last part of the eighteenth 
 century and first part of the nineteenth, was descended from 
 an old Dutch family. After his graduation at King's College (now 
 Columbia) in 1768, he prepared for the bar in the office of the elder 
 William Smith. In 1772 he was appointed to revise the colonial 
 statutes. 1 Being a loyalist, he was placed under restraint early in the 
 Revolution, and in 1778 was banished to England. Returning in 1785 
 he received a hearty welcome from the bar, and until his death was a 
 very prominent legal character. He conducted a law school, educat- 
 ing many young men for the profession. In 1773 he published, in 
 two volumes, "Laws of the Colony of New York," and in 1778 "Con- 
 ductor Oeneralis, or the Duty and Authority of Justices, Sheriffs, Con- 
 stables, etc." 
 
 His son, Henry Cruger Van Schaack (born in Kinderhook, April 3, 
 1802 ; died in Manlius, New York, December 16, 1887), was also a 
 prominent lawyer. He published the "Life, Journal, Diary and 
 Letters" of his father, and left a highly valuable collection of old 
 manuscripts and autographs. 
 
 AN VECHTEN, ABRAHAM (born in Catskill, New York, 
 December 5, 1762 ; died in Albany, January 6, 1837), was the 
 first lawyer admitted to the bar under the state constitution 
 of 1777. His legal preceptor was John Lansing. He engaged 
 in practice at Johnstown. He held local offices there, was a state sena- 
 tor and assemblyman and regent of the state university, and served as 
 attorney-general of the state in 1810 and from 1813 to 1815. Governor 
 Jay offered him a place on the supreme bench, which he declined. 
 
 AN VORST, HOOPER C. (born in Schenectady, New York, 
 December 3, 1817 ; died in New York City, October 26, 1889), 
 was graduated at Union College in 1839 and was admitted to 
 the bar at Albany. He was attorney and counsel to that city 
 for a number of years, and in 1853 removed to New York City. • There 
 he acquired a large practice. He was appointed judge of the Court of 
 Common Pleas in 1868, and in 1871 was elected to the bench of the 
 Superior Court for a term of fourteen years. He also served as presid- 
 ing justice of the Supreme Court by the governor's appointment. He 
 was a vice-president of the Association of the Bar. He stood high as 
 a judge. 
 
 i See p. 108 of tuie volume, 
 
510 
 
 HISTORY OE THE BENCH AND BAE OF NEW YORK 
 
 AN WINKLE, EDGAR S. (born in New York City, August 
 3, 1810 ; died there, December 9, 1882), was the son of Peter 
 Yan Winkle, a prominent merchant. He studied law in 
 the office of John P. Jackson, of Newark, New Jersey, and 
 afterward under William Slosson, of New York, and was admitted to 
 the bar in 1831. For fifty years he was a practitioner at the New York 
 bar. He early became prominent as counsel for large moneyed corpo- 
 rations. When Daniel Webster resolved to remove to New York and 
 practice law in that city he chose Mr. Van Winkle as his associate. 
 
 He was a conspicuous member of the Bar Association, presided at 
 the meeting by which it was organized (February, 1870), and was its 
 first vice-president. 
 
 ARICK, RICHARD (born in Hackensack, New Jersey, March 
 25, 1753 ; died in Jersey City, July 30, 1831), engaged in the 
 practice of the law in New York shortly before the beginning 
 of the Revolution, but abandoned it to serve in the army. 
 He was, successively, military secretary to General Philip Schuyler, 
 aide-de-camp to General Benedict Arnold, and a member of Washing- 
 
 l&zAuys ^jSl*,^ su&b*,.^ 
 
 9 ^s£~a-A~-'* ■• 
 
 
 'a& 
 
 DOCUMENT AND SIGNATURE BY RICHARD VARICK. 
 
 ton's staff. He served as recorder of the City of New York from 1783 
 to 1789, and as mayor from 1791 to 1801. He was appointed in 1786, 
 with Samuel Jones, to revise the laws of the state. He was one of the 
 founders of the American Bible Society and succeeded John Jay as its 
 president. • 
 
 ERPLANCK, GULIAN CROMMELIN (born in New York 
 City, August 6, 1786 ; died there, March 18, 1870), although 
 best known as a scholar, editor and writer, was eminent at 
 the bar of New York, to which he was admitted soon after 
 his graduation from Columbia College. He was also active in politics, 
 
HISTORY OF THE BENCH AND BAK OF NEW YORK 511 
 
 served in congress (1S25-33), and for many years was president of the 
 board of commissioners of immigration. 
 
 His father, Daniel Crommelin Verplanck, was a prominent citizen 
 of Dutchess county, which he represented in 
 congress from 1803 to 1809, and of whose 
 Common Pleas court he was judge from 1828 
 to 1830. Cuban's cousin, Isaac A., was a dis- 
 tinguished jurist of western New York, being judge of the Superior 
 Court of Buffalo for two terms and acting for a period as its chief- 
 justice. 
 
 &^.VWJv^vv*JL 
 
 IELE, JOHN L. (born in Washington county. New York, June 
 6, 1788 ; died in Albany, New York, October 19, 1832), was 
 admitted to the bar in 1812 and became a leading practi- 
 tioner of the counties of Washington, Rensselaer, Saratoga, 
 and Albany. As a member of the state senate he actively supported 
 the Erie canal measures, and, becoming a judge of the Court of Errors, 
 delivered a series of noteworthy opinions, which may be found in 
 Cowen's Reports. 
 
 AIT, WILLIAM (born in Ephratah, New York, February 2, 
 1821; died in Johnstown, New York, December 29, 1880), 
 being admitted to the bar in 1846, soon became prominent in 
 the profession, and in 1848 was chosen district-attorney of 
 Fulton county. Devoting himself to legal writing, he published a 
 variety of works of high authority, including the following: " The Law 
 and Practice in Civil Actions and Proceedings in Justices' Courts and 
 on Appeals to the County Courts in the State of New York " (2 vols., 
 1865), " New York Annotated Code of Procedure " (1871), " A Table of 
 Cases Affirmed, Revised or Cited in the Reports of the State of New 
 York " (1872), " The Practice in Courts of Record of the State of New 
 York " (1872), and " Wait's Actions and Defences at Lav/ and in Equity " 
 (7 vols., 1876-79). He also edited editions of standard legal works. 
 
 ALKER, STEPHEN AMBROSE (born in Brattleboro, Ver- 
 mont, in 1836; died in JNew York City, February 5, 1893) was 
 graduated with first honors at Middlebury College, Vermont, 
 in 1858, and studied law in the office of Daniel S. Dickinson, 
 at Binghamton, New York, being admitted to the bar in 1861. _ During 
 the war he was an army paymaster. Engaging in practice 'in New 
 York City in 1865, he gradually advanced to an important position in 
 the profession, and was retained in numerous celebrated litigations. 
 He was counsel for the estate of Bomanjee Byramjee Colah, the unfor- 
 tunate Parsee merchant, and was retained by various large companies 
 and corporations. In 1881 he was an unsuccessful candidate for surro- 
 
512 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 gate, receiving the endorsement of the Bar Association. From 1886 to 
 1889 he was United States district-attorney. He was one of the execu- 
 tors selected by Samuel J. Tilden to constitute the board of trustees of 
 the Tilden Trust. 
 
 jALWORTH, REUBEN HYDE (born in Bozrah, Connecticut, 
 October 26, 1788; died in Saratoga Springs, New York, No- 
 vember 27, 1867), the last chancellor of the State of New York, 
 was descended from William Walworth, a member of an old 
 English family, who emigrated to America in 1671. Beuben H. entered 
 upon the study of law in Troy, New York, at the age of seventeen, and 
 was admitted to the bar in 1809. He began practice at Plattsburg 
 the next year, and soon was regarded as one of the best lawyers of 
 that part of the state, becoming a master in chancery and a county 
 judge in a brief time. He served a term in congress (1821-23), was 
 judge of the 4th judicial district from 1823 to 1828, and in the latter year 
 was appointed chancellor, retaining that office until its abolition under 
 the constitution of 1846. 
 
 Chancellor Walworth (says a biographical writer) may justly be regarded as 
 the great artisan of our equity laws. In some sense he was the Bentham of America, 
 without the bold speculations and fantastical theories which, to a certain extent, 
 characterized the great British jurist. What Bentham did in removing defects in 
 English jurisprudence, Walworth did in renovating and simplifying the equity 
 laws of the United States. Justice Story pronounced him "the greatest equity jurist 
 living. " Before his day the Court of Chancery in New York State was a tribunal of 
 ill-defined powers and uncertain jurisdiction — in a measure subservient to the Eng- 
 lish Court of Chancery in its procedure. Chancellor Walworth abolished much of 
 that subtlety, many of those prolix and bewildering formalities which had their 1 
 origin in the middle ages. He reduced the practice of his court to standard rules, 
 which he prepared with great industry. These rules greatly improved the old sys- 
 tem of equity practice, and though he has been charged with thus complicating the 
 Court of Chancery with expensive machinery, it cannot be gainsaid that with Chan- 
 cellor Walworth equity was the soul and spirit of the law, " creating positive and 
 defining rational law, flexible in its nature and suited to the fortunes, cases, and 
 reciprocal obligations of men." The contents of fourteen volumes of Paige and 
 Barbour's Chancery Reports, containing the adjudications in his own court, and a 
 large part of the matter of the thirty-eight volumes of Wendell, Hill and Denio's 
 Eeports, consisting of the opinions he pronounced in the Court of Errors, attest 
 his vast judicial labors. 1 
 
 |ATERBURY, NELSON JARVIS (born in New York City, 
 July 9, 1819 ; died there, April 22, 1894), was the son of Col- 
 onel Jonathan Waterbury, a highly esteemed citizen of New 
 York, who died in 1829 at the early age of thirty-one. His 
 mother was Elizabeth Jarvis, daughter of Elijah Jarvis and Betsey 
 Chapman, who was a daughter of Doctor Chapman, a distinguished 
 physician of Norwalk, Connecticut. After receiving an elementary edu- 
 
 ' Appleton'8 " Cyclopeedia of American Biography." 
 
HISTOEY OP THE BENCH AND BAR OF NEW YOKE. 513 
 
 cation he began the study of law in the office of Wells & Van Wage- 
 nen, of New York, a firm of reputation at that early day. He was 
 admitted to the bar as an attorney by the Supreme Court, then consist- 
 ing of three judges, Samuel Nelson being chief-justice. While in 
 Albany to obtain license as counsellor his name was erroneously and 
 without his knowledge included in the list for justice of the Marine 
 Court. The fact that he was not a candidate did not stop the course of 
 events, and the governor, Silas Wright, having had personal opportu- 
 nity of observing the capacity and usefulness of the young lawyer, 
 gave to the suggestion his cordial approval. Mr. Waterbury was thus 
 elevated immediately on his admission as counsellor to the bench of a 
 court which had been graced by many distinguished lawyers. Though 
 still a youth, he made one of the best, most respected and most useful 
 judges that ever presided in that important court, though of minor 
 jurisdiction. The jadicial character of his mind, his analytical, logical 
 power, his quickness of apprehension and conscientious good judgment 
 singularly qualified him for the office, which he held for four years. 
 
 On his retirement, in 1849, Judge Waterbury pursued the modest 
 career of a young lawyer with a practice yet to make and with qualifi- 
 cations for success more solid than showy. He, however, very speedily 
 drifted into politics, and proved himself a born organizer, occupying at 
 a very early day a unique position among the -democratic leaders of 
 the period. Possessing a remarkable memory, and fond of statistics, he 
 was familiar with the figures of past elections, not only in states and 
 cities, but also in counties and wards; so that in election times he was 
 invaluable in helping to the earliest judgment of results. In New 
 York, the city of his residence, he always took a most serviceable part, 
 organization being at once his forte and his delight. In 1853 the com- 
 mon council of New York City had become so corrupt that a commit- 
 tee was organized for the purpose of securing municipal reform by the 
 passing of a series of amendments to the city charter, to be submitted 
 to a popular vote before taking effect. Judge Waterbury was re- 
 quested to prepare a plan and direct the campaign. When the caucus 
 of the common council learned that the plan of operation was to be 
 conducted by him they abandoned any attempt to defeat the amend- 
 ments, which were adopted by a majority of 30,000 votes. In 1851 he 
 was nominated to represent his ward in the board of education, and 
 although he declined the honor was nevertheless elected. The service was 
 wholly gratuitous, and involved much labor and sacrifice of time, but 
 was performed with a zeal and thoroughness which he ever evinced 
 when duty was involved. In 1853 Judge Waterbury, with great reluct- 
 ance, accepted the position of assistant-postmaster of New York, and 
 he instituted a series of reforms in the delivery and collecting systems 
 which aided greatly in the efficiency with which the work was per- 
 formed and added materially to the postal revenues. 
 
 In 1858 the leading men of his party turned to Judge Waterbury as 
 
514 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 their candidate for the office of district-attorney of New York, to which 
 he was triumphantly elected, and in a few months he had won the entire 
 confidence of the community. In this office he brought to bear quickness 
 of perception, a remarkable memory for facts and faculty for co-ordi- 
 nating them, firmness of purpose, conscientiousness, and intense ear- 
 nestness ; a combination of qualities that insured success. When the 
 news reached New York of the firing on Fort Sumter in April, 1861, 
 Judge Waterbury was selected by the democratic general committee 
 of the City of New York to draft an expression of its sentiments, and 
 his clear, strong and patriotic resolutions were adopted with enthu- 
 siasm, and were greatly effective in giving hope and courage to the 
 upholders of the union everywhere as an authentic declaration of the 
 opinion of the mass of the democratic party in their great stronghold. 
 In the fall of 1862 he was nominated for congress by all of the three 
 organizations into which his party was at that time divided. His elec- 
 tion was certain, but the interests of his party prompted his withdrawal 
 in favor of Honorable James Brooks, editor of the Express. He was 
 several times after that event asked to become a candidate, but felt 
 constrained to adhere to his profession, though he accepted the ap- 
 pointment of judge-advocate-general in the staff of Governor Horatio 
 Seymour. 
 
 Judge "Waterbury was elected grand sachem or presiding officer of 
 the Tammany Society in May, 1862, and served one year. At the close 
 of 1863 he retired from the Tammany general committee, and was ever 
 after an unyielding adversary of the virtual domination of " Tammany 
 Hall" over the democracy of New York. Such a man necessarily 
 made many formidable political enemies, but they respected as well 
 as dreaded him even on the field of irreconcilable conflict. 
 
 In 1871 Governor Hoffman appointed Judge, Waterbury one of 
 three commissioners to revise the statutes of the state, one of the 
 highest tributes paid a lawyer and a public man, but he was con- 
 strained to resign the office after a futile effort to harmonize the con- 
 flicting elements in the commission. 
 
 This sketch does not approach the nature of a biography of its 
 subject, but is a brief resume of his life, many points in his character 
 being of necessity omitted. 
 
 Judge Waterbury early in life married a Miss Gibson, whose 
 parents resided in Boston, Massachusetts. Their children are three 
 daughters and a son, Nelson J., an attorney in New York City. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 515 
 
 ATTS, JOHN, Junior (born in New York City, August 27 [O. S.], 
 1749; died September 3 [N. S.], 1836), was a jurist, prominent 
 in official life, a philanthropist, and one of the most eminent 
 4531 citizens of New York during the revolutionary period and the 
 first quarter of the present century. 1 His family, of distinguished 
 Scotch lineage, were for many generations prominent lawyers and jurists 
 of Edinburgh, their seat, Rose Hill, being adjacent to that city, and now 
 forming a part of it. Honorable Adam Watt was in 1 661 appointed 
 " writer to His Majesty's signet," the highest grade of solicitor, and 
 also held the judicial office of commissary of Kirkcudbright, having 
 jurisdiction in divorce cases. His son, Honorable John Watt, of Rose 
 Hill, a stately mansion still standing within the century, with environ- 
 ing gardens and lawns, was also an eminent lawyer, and in 1696 was 
 holding the important office of commissioner of supply for the shire of 
 Edinburgh. He was succeeded in 
 this office by his eldest son, Honor- 
 able Adam Watt, in 1704 ; while 
 another son, Robert Watt, or 
 Watts (the grandfather of John 
 Watts, Junior), emigrated to the 
 Colony of New York near the 
 close of the eighteenth century, 
 and became the founder of the 
 American branch of the family, 
 the only direct line of descent 
 now in existence. One of their 
 sisters became Lady Riddell, wife 
 of the baronet, Sir Walter Rid- 
 dell, who dated his title back to 
 the reign of David, first king of 
 Scotland, in the twelfth century. 
 
 Robert Watts added a final 
 letter s in writing his name, and 
 this custom was perpetuated by 
 
 his children. About the year 1706 he married Mary, eldest daughter 
 of Honorable William Nicolls (of Islip manor, Long Island), eminent 
 as a lawyer and statesman, 8 and of his wife, widow Van Rensselaer, 
 
 JOHN WATTS, SENIOR. 
 
 a The chapter on "Society in the Early Days of the 
 Eepublic" in the "Memorial History of New York," 
 contains the following mention of the social leaders of 
 New York City, at that time the capital of the United 
 States: "The bar of New York shall be noticed first. 
 It gave to the salons of the day an array of names never 
 since surpassed in our juridical history: James Duane, 
 Richard Harison, Aaron Burr, Alexander Hamilton, 
 Morgan Lewis, Robert Troup, Robert R. Livingston, 
 Egbert Benson, John Watts, Gouverneur Morris, 
 Richard Varick, John Lansing, Josiah Ogdcn Hoffman 
 and James Kent, At various times they appeared 
 under the hospitable roof of the Jays, and in turn met 
 
 at the tables of other dignitaries of their own or other 
 professions." * Again : " Prominent upon Mrs. Jay's list 
 are, of course, the names of the old New York families— 
 the Bayards, the Beekmans, the Crugers, the de Pey- 
 sters, the Livingstons, the Morrises, the Schuylers, the 
 Van Homes, the Van Cortlandts, the Van Rensselaers, 
 the Verplancks, the Wattses." t 
 
 *Vol. iii., pp. 93nt. 
 
 tlbid., n. 101. 
 
 2 It is a curious fact that Judge Nicolls dropped the 
 final letter s from his name about the same time that 
 his son-in-law, Watts, added it to his. 
 
516 
 
 HISTORY OF THE BENCH AND BAR OE NEW YORK 
 
 and granddaughter of Honorable Matthias Nicolls, secretary of the 
 Colony of New York. Robert "Watts and Mary Mcolls had three 
 daughters, two of whom died early, and one son, James Watts, Senior. 
 After some years Mr. Robert Watts crossed over with his family to 
 Edinburgh, expecting to remain there permanently, but the death of 
 his two daughters about 1724 moved him to return to New York. 
 Here he died, September 21, 1750, at the age of seventy-two. 
 
 His only son, John Watts, Senior, was born in New York, April 5, 
 1715, and died, impoverished, an exile in Wales, having been ex- 
 patriated and his magnificent estate confiscated on account of his 
 loyalty to the king ; while his wife, the beautiful Ann de Lancey 
 (whom he married in July, 1742), died of a broken heart. 1 According 
 
 to a memorandum by his own 
 hand, she " died 3d July, 1775, two 
 months ^.fter I sailed for England 
 — having embarked in the Charlotte 
 packet, 4th May, and left the light- 
 house at 7 in the morning of the 
 day following, with a heavy heart, 
 foreseeing the distresses which 
 were hanging over us." This 
 gifted lady was the daughter of 
 Stephen de Lancey (a protestant 
 gentleman driven from Caen, Nor- 
 mandy, by religious persecution, 
 and the first lord of the de Lancey 
 manor, north of New York) and 
 his wife Ann, daughter of Steph- 
 anus Van Cortlandt, first lord of 
 Cortlandt manor. 
 
 It was the official prominence 
 of John Watts, Senior, in the ser- 
 vice of the king in the colony, 
 which made him the object of political persecution. One of the 
 most remarkable experts, well acquainted with colonial history, de- 
 clares that the letters of John Watts to General Monckton, pub- 
 lished among the Aspinwall papers in the collections of the Massa- 
 chusetts Historical Society (1871), present the best exhibit of political 
 and public feeling just before the Revolution to be found in any 
 contemporaneous papers. He was a representative in the general 
 assembly, was attorney to Governor Monckton, and a member of the 
 king's council from 1756 to the Revolution. He was the choice of the 
 king for the appointment of acting-governor of New York in the event 
 
 MRS. JOHN WATTS, SENtOE 
 
 {Nee Ann de Lancey). 
 
 1 Her nephew, Sir Willianv Howe de Lancey, born in sister, wife of Sir Hudson Lowe, stationed at Stint 
 New York, the beloved companion and chief-of-Btaff of Helena, was by Napoleon Buonaparte declared to be 
 Wellington, was mortally wounded at Waterloo. His the handsomest woman he had ever seen, 
 
HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 5l7 
 
 of the failure of the Revolution. The estate of this gentleman, called 
 " Rose Hill " after the family seat near Edinburgh, embraced that 
 part of New York City bounded by Broadway, the Old Post Road, 
 Twenty-eighth and Twenty-first streets, and the East river, containing 
 almost the entire 19th and 22d wards, and a part of the 18th. This 
 valuable domain was confiscated. A portion of it was subsequently 
 bought 'back from the committee of sequestration, and became the 
 property of Honorable John Watts, Junior, son of the exile. 
 
 The latter, as stated at the beginning of this article, was one of the 
 most eminent citizens in the City and State of New York. In 1774, at 
 the age of twenty-five, he became recorder of New York City, continu- 
 ing in office until 1777, when the Revolution interrupted his functions. 
 He was thus the last royal recorder of 
 the city. He was a member of the as- 
 sembly, and its speaker from January 5, 
 1791, to January 1, 1794; while from 
 1793 to 1795 he was a member of con- 
 gress. He was the "first judge" of 
 Westchester county, receiving the ap- 
 pointment to that office in 1806. 
 
 He was an able and careful judge, 
 exhibiting sound judgment and judicial 
 conservatism. An interesting manu- 
 script volume, containing the proceed- 
 ings of his court, has been preserved 
 and is in the custody of the New York 
 Historical Society, being the gift to that 
 society of Mr. Edward F. de Lancey. 
 
 While partaking of his father's char- 
 acteristic of loyalty to the existing gov- 
 ernment, Judge Watts was (like his father 
 again) a fearless champion of the true 
 rights of the people, and notable for his 
 
 practical philanthropy. The elder Watts had been the only person 
 who dared face the Earl of London and oppose his quartering his 
 troops upon the City of New York in 1756. Smith, the contemporary 
 historian, admits that the others in high life excused themselves from 
 opposing the earl's course, while it was understood that Mr. Watts 
 " spoke his mind in favor of the people." So was it with Judge Watts. 
 He inculcated, as a principle of conduct in his household, that " a gen- 
 tleman may treat an equal according to the exigencies of the situation, 
 but must treat a poor man or social inferior with respect under all 
 circumstances." 
 
 Judge Watts, Senior, was one of the founders, and afterwards presi- 
 dent, of the New York Hospital, with very extensive powers and juris- 
 diction, and John Watts, Junior, was one of the founders, and after- 
 
 JOHN WATTS, JUNIOR. 
 
518 
 
 HISTORY OF THE BENCH AND BAB OF IEW YORK 
 
 wards president, of the New York City Dispensary. He was also the 
 founder and endower of the Leake and Watts Orphan House, diverting 
 for this purpose a fortune of $1,000,000 which would otherwise have 
 been his by inheritance. 
 
 Like his father, Judge Watts married into the de Lancey family, 
 his wife, Jane, being the daughter of Peter de Lancey, " of the Mills," 
 Westchester county, New York. Her mother, Elizabeth, was the 
 daughter of Governor Cadwallader Colden. 
 
 Judge Watts' two sons, Robert and George, were officers in the 
 service of the United States during the war of 1812. The last men- 
 tioned was aide-de-camp to General Winfield Scott, who eulogized him 
 for his remarkable courage and coolness and credited him with having 
 saved his own life from a treacherous attack by Indians in the British 
 service just prior to the battle of Chippewa. His sons dying early, 
 without issue, Judge Watts' estate was mainly divided between his two 
 
 grandsons, Major - Gen- 
 eral J. Watts de Pey- 
 ster, son of his youngest 
 daughter, "the beautiful 
 Mary Justina Watts," 
 and Frederic de Peyster, 
 and Major-General Philip 
 Kearny, son of another 
 daughter. 
 
 The notable statue of 
 Honorable John Watts, 
 Junior, in Trinity church- 
 yard, was erected by his 
 grandson, General de 
 Peyster. This work, with 
 the statue in Bowling Green of another ancestor, Colonel Abraham 
 de Peyster, an early mayor of the city and chief-justice of the colony, 
 and acting governor in 1701, and both the gifts to the city of General 
 de Peyster, are among the finest of the statues which the city 
 boasts. 
 
 Honorable John Watts, Junior, has often been concisely character- 
 ized by his grandson, General de Peyster, as vir equanimitatis — two 
 "words which exactly express his character, his firmness of bearing 
 beneath a burden of affliction and suffering which led those acquainted 
 with the extent of his losses and griefs to style him a ' Monument of 
 affliction.' " So clear-cut was his analytical habit of thought, and so 
 pointed and laconic his mode of expression, that the celebrated Honor- 
 able Samuel B. Ruggles was accustomed to declare that John Watts 
 could " express himself more to the point on a page of note-paper than 
 could most men on a sheet of foolscap." 
 
 1 The Bite of the present Field or Washington building. 
 
 KENNEDY AND WATTS HOUSES, NOS. 1 AND 3 BROADWAY. 1 
 
HISTORY OE THE BENCH ANI1 BAR OF NEW YORK 519 
 
 ELLS, JOHN" (born in Cherry Valley, Otsego county, New 
 York, in 1770 ; died in Brooklyn, New York, September 7, 
 1823), was graduated at Princeton in 1778, studied law under 
 Edward Griswold, and in 1791 was admitted to the bar. He 
 took a prominent part in the discussions in the press about the national 
 constitution, advocating federalist principles, and became intimate with 
 Alexander Hamilton. In this connection he sustained a leading part 
 in the publication of the Federalist. Among his important cases at 
 the bar were the Smith-Cheetham libel suit and the case of Griswold 
 vs. Waddington — the latter being an action brought after the war of 
 1812, in which Mr. Wells took the ground that the war effected a dis- 
 solution of the partnership of the Waddington brothers, one of whom 
 was a resident of New York and the other of Liverpool. 
 
 Hgp|ENDELL, JOHN LANSING (born in Albany, New York, 
 &* W] fc January 2, 1785; died in Hartford, Connecticut, December 19, 
 *j!M 1861), received his legal education in the office of his brother, 
 "' " ' ' ; " "' ' Gerritt Wendell, and was admitted to the bar at Albany. 
 After serving as a judge of Washington county he was appointed re- 
 porter of the Supreme Court, which position he held for a long period. His 
 reports of cases in the Supreme Court comprise twenty-six volumes and 
 extend from 1829 to 1842. He also published a digest of Supreme 
 Court cases (1836) and edited editions of Blackstone's Commentaries 
 (1847) and Starkie's " Law of Slander " (1843). 
 
 | HEATON, HENRY (born in Providence, Rhode Island, No- 
 vember 27, 1785 ; died in Dorchester, Massachusetts, March 
 11, 1848), was a member of an old New England family.' His 
 legal preceptor was Nathaniel Searle, and after his admission 
 to the bar (1805) he rounded out his professional education abroad. 
 After his return he practiced for a while in Providence, but removed in 
 1812 to New York City. During the war of 1812-15 he edited the Na- 
 tional Advocate, in which he published a series of important papers on 
 neutral rights. He filled, successively, the offices of division judge- 
 advocate of the army (1814), justice of the Marine Court of New York 
 City (1815-19), and reporter of the Supreme Court of the United States 
 (1816-27). As reporter of the United States Supreme Court his name 
 is connected in an enduring manner with the jurisprudence of the coun- 
 try. The reports published by him in that capacity — twelve volumes 
 — are models of conscientiousness and intelligence. 
 
 During his service as reporter he was a delegate to the state con- 
 
 i Its ancestor, Reverend Robert Wheaton, came from Wales and settled in Salem, Massachusetts, and after- 
 ward in Rhode Island. 
 
520 HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 stitutional convention of 1821, a member of the assembly (1823), and a 
 commissioner, with Benjamin F. Butler and John Duer, to revise the 
 statutes of the state. He also continued his legal practice, arguing 
 various important cases. He was associated with Daniel Webster in 
 the suit brought to settle the limits of the bankruptcy legislation of 
 the state and federal governments. 
 
 He resigned his offices as Supreme Court reporter and state re- 
 viser to accept the position of charge d'affaires to Denmark (1827-35). 
 He was also minister resident and later minister plenipotentiary to 
 Prussia (1835-46). 
 
 Returning to the United States he was the recipient of high hon- 
 ors. He was appointed lecturer on international law at Harvard, but 
 in consequence of ill-health was unable to accept the place. 
 
 Mr. Wheaton's great work, "Elements of International Law," was 
 first published at Philadelphia in 1836. It immediately enjoyed ac- 
 ceptance as an eminent authority and has been repeatedly republished- 
 His other writings are numerous and varied, embracing valuable Con- 
 tributions to different phases of the literature of the law; 
 
 HEELER, WILLIAM ALMON (born in Malone, Franklin 
 county, New York, June 80, 1819 ; died there, June 4, 
 1887), was a student at the University of Vermont, but did 
 not graduate. Soon after his admission to the bar (1845) he 
 became United States district-attorney of Franklin county. He early 
 took a strong interest in politics as a whig, and joined the republican 
 party upon its organization. He served in the assembly, the state 
 senate (being its president pro tempore, 1858-59), and congress (1869- 
 77). He was president of the state constitutional convention of 1867. 
 He was nominated for vice-president by the republican party in 1876 
 and took his seat as president of the senate in March, 1877. He retired 
 from active life after the completion of his term. 
 
 As a lawyer Mr. Whee/er was a man of recognized ability, but a 
 trouble of the throat compelled him to give up his active practice in 
 1851. 
 
 HITTLESEY, FREDERICK (born in Washington, Connecti- 
 cut, June 12, 1799 ; died in Rochester, New York, September 
 19, 1851), was a Yale graduate (class of 1818), was admitted 
 to the bar in 1821 at Utica, removed to Rochester in 1822, 
 and became prominent in that city, serving in pongress (1831-35), as 
 vice-chancellor of the 8th judicial district (1839-47), and as judge of the 
 state Supreme Court (1847-48). Later he lectured on law in Genesee 
 College. 
 
I 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 521 
 
 ILLARD, JOHN (born in Guilford, Connecticut, May 20, 1792 ; 
 died in Saratoga Springs, New York, August 31, 1862), was 
 admitted to the bar in Salem, Washington county, New 
 York, in 1827, having received a collegiate education. From 
 1836 to 1848 he was judge and vice-chancellor of the 4th circuit, and in 
 1854 he became a member of the Court of Appeals. He served as a 
 commissioner, by the appointment of President Pierce, to inquire as to 
 the validity of Spanish and Mexican claims to California land-titles. 
 He was elected to the state senate in 1861, and in that body rendered 
 memorable service in simplifying the laws relating to murder and the 
 rights of married women. He published a work on "Equity Juris- 
 prudence" (1855), a "Treatise on Executors, Administrators and 
 Guardians " (1859), and a " Treatise on Real Estate and Conveyanc- 
 ing " (1861). 
 
 He ranks among the distinguished jurists of the state, both as a 
 judge and as a legal writer. 
 
 |ILLIAMS, ELISHA (born in Pomfret, Connecticut, August 29, 
 1773 ; died in New York City, June 29, 1833), had for his legal 
 preceptors Judge Tapping Reeve, of Litchfield, Connecticut, 
 and Chief- Justice Spencer, of Hudson, New York. After his 
 admission to the bar (1793) he practiced in Spencertown and Hudson. 
 He was prominent in the state constitutional convention of 1821. He 
 ranks with the very foremost practitioners of the first quarter of the 
 century, and was an orator and nisi prius advocate of surpassing 
 powers. He founded the town of Waterloo. He was one of the most 
 influential men of Columbia county, was a leader of the federalists, and 
 was repeatedly elected to the assembly of the state. 
 
 OOD, GEORGE (born in Chesterfield, Burlington county, 
 New Jersey, in January, 1789 ; died in New York City, 
 March 17, 1860), was graduated in 1808 at Princeton, studied 
 law with Robert Stockton, was admitted to the bar in 1812, 
 began practice in New Brunswick, New Jersey, and advanced with 
 great rapidity to a foremost place in the profession. He removed to 
 New York City in 1831, and until the end of his career was counted 
 among the ablest jurists of the metropolitan bar. He was frequently 
 retained in cases involving constitutional questions. His name is 
 especially connected with the development of settled doctrines of juris- 
 prudence in matters related to charitable devises. 
 
522 HISTORY OF THE BENCH AND BAK OE NEW YORK 
 
 OODRUFF, LEWIS B. (born in Litchfield, Connecticut, June 
 19, 1809 ; died there, September 10, 1875), was graduated 
 with honors at Yale in 1830, and studied law under Judge 
 Gould in the school at Litchfield, being admitted to the bar 
 of Connecticut in 1 832. Soon afterward he went to New York City 
 and formed an association with Honorable Willis Hall, which lasted 
 until 1836. Later he was in partnership with George Wood, and also 
 with Richard Goodman. In 1849 he was elected to the bench of Court 
 of Common Pleas, as successor to Judge Ulshoeffer. He served in that 
 office until 1855. From 1856 to 1861 he was associate- justice of the 
 Superior Court. He then retired to private practice in association with 
 Honorable Charles F. Sanford. From January, 1868, until the end of 
 1869 he was a member of the Court of Appeals, by gubernatorial 
 appointment, and from the latter date until his death he was judge of 
 the Circuit Court of the United States for the 2d judicial circuit, em- 
 bracing the states of New York, Connecticut and Vermont. 
 
 Both as a counsellor and as a judge he was characterized by great 
 learning, remarkable power of analysis and deep discernment. His de- 
 cisions in admiralty and patent suits are particularly able and valuable. 
 
 OOD WORTH, JOHN (born in Schodack, New York, Novem- 
 ber 12, 1768 ; died in Albany, New York, June 1, 1858), was 
 one of John Lansing's law pupils, and in 1791 was admitted 
 to the bar. In 1813 he published, in collaboration with 
 William P. Van Ness, a revision of the laws of New York. He served 
 in the assembly and senate, and was surrogate of Rensselaer county, 
 attorney-general (1804-8), and Supreme Court justice (1819-28). 
 
 |ORDEN, ALVAH (born in Milton, Saratoga county, New 
 York, June 11, 1798 ; died in 1856), was educated at the Mil- 
 ton Academy, and then began the study of medicine, which 
 he abandoned to engage in mercantile pursuits. He opened 
 a large general store in Auburn, and enjoyed much success, but misfor- 
 tunes swept away his entire possessions at the age of thirty-four. He 
 then decided to study law, and his abilities enabled him to promptly 
 take a very prominent place at the bar. He established, with Mark H. 
 Sibley, the firm of Worden & Sibley. He was counsel in many highly 
 important cases— notably the celebrated one of Griffith vs. Reed, in 
 which he succeeded over Marcus T. Reynolds; obtaining a decision 
 which, although frequent efforts have been made to remove it, still 
 remains law. He was one of the principal members of the consti- 
 tutional convention of 1846, and was appointed one of the commission- 
 ers of the code, with Albert L. Robertson and Seth C. Hawley, in 1847. 
 He declined a reappointment in 1849. Resuming his practice, he was 
 
HISTOKY OP THE BENCH AND BAR OP NEW YORK 523 
 
 occupied, throughout the remainder of his active life, with litigations 
 involving great interests. He participated successfully in this period 
 in the memorable case of Farmers' Loan and Trust Company vs. Carroll. 
 
 I RIGHT, SILAS (born in Amherst, Massachusetts, May 24, 
 ; 1795 ; died in Canton, Saint Lawrence county, New York, 
 August 27, 1847), was brought up on a farm, was graduated 
 at Middlebury College in 1815, and engaged in the practice of 
 the law at Canton. His career at the bar was soon interrupted by his 
 energetic participation in politics, but meantime he had become prom- 
 inent among lawyers of that section of the state, having been appointed 
 surrogate of Saint Lawrence county. He began his public life as an 
 intense partisan of the democratic party, and to that faith he adhered 
 until his death. After serving in the state legislature and in the 
 national house of representatives, he was elected (1829) comptroller of 
 the state, and in 1833 he succeeded William L. Marcy in the senate of 
 the United States. He remained in that office until December, 1844, 
 and from the latter date until 1847 he was governor of the state. He 
 then retired to rural life. 
 
 ATES, JOHN YAN NESS (born in Albany, New York, 
 December 18, 1779 ; died there, January 10, 1889), a grand- 
 son of Judge Robert Yates (q. v.), was a well-known prac- 
 titioner of Albany. Early in his career he gained much 
 notoriety by his controversy with Chancellor Lansing, who had adjudged 
 him guilty of contempt for failing to observe the formalities of the 
 Court of Chancery. (See the sketch of John Lansing.) He served as 
 recorder of Albany for a number of years, and as secretary of state 
 (1818-26), and was appointed by the legislature to add notes and refer- 
 ences to the revised statutes. Among his published works are " Select " 
 Cases Adjudged in the Courts of the State of New York, Containing 
 the Case of John V. N. Yates and the Case of the Journeymen Cord- 
 wainers" (1811), "A Collection of Pleadings and Practical Precedents, 
 with Notes thereon " (2d. ed., 1837), and, in conjunction with John L. 
 Tillinghast, a " Treatise on the Principles and Practice, Process, Plead- 
 ings and Entries in Cases of Writs of Error " (1840). 
 
 ]ATES, JOSEPH CHRISTOPHER (born in Schenectady, New 
 York, November 9, 1768 ; died there, March 19, 1837), a son 
 of Christopher Yates, who held the rank of quartermaster- 
 general in the Revolution, was one of the prominent state 
 lawyers of his time, practicing at Schenectady. He was mayor of that 
 city (1798-1808), judge of the state Supreme Court, and governor 
 (1823-25). He was one of the founders of Union College. The county 
 of Yates was named for him. 
 
524 
 
 HISTORY OF THE BENCH AND BAR OF NEW YORK 
 
 ATES, ROBERT (born in Schenectady, New York, March 17, 
 1738 ; died in Albany, New York, September 9, 1801), was a 
 legal pupil of William Livingston, and took a leading place 
 at the bar of Albany, being admitted in 1760. He was dis- 
 tinguished in public life, serving in the provincial congresses of New 
 York and having a hand in the drafting of the constitution of 1777. 
 He was a judge of the state Supreme Court from 1777 to 1798, and dur- 
 ing the last eight years of his service was its chief-justice. He was a 
 delegate to the national constitutional convention and was a commis- 
 sioner to determine questions of territorial ownership with the states 
 of Massachusetts, Connecticut and Vermont. 
 
 Peter W. Yates, a member of the continental congress and a con- 
 spicuous Albany lawyer, was his relative. 
 
 OUNG, JOHN (born in Chelsea, Vermont, June 12, 1802 ; died 
 
 in New York City, April 23, 1852), 
 
 was the son of an innkeeper, and 
 
 was largely self-educated. At the 
 age of twenty-one he entered the law office 
 of A. A. Bennett at East Avon, New York. 
 Removing to Geneseo, he completed his 
 studies under Ambrose Bennett, and in 1827 
 was admitted to the bar. He quickly se- 
 cured a lucrative practice, ranking with the 
 best jury lawyers of the times. Entering 
 politics, he was a firm supporter 6f Andrew 
 Jackson, then an anti-masonic leader, and 
 finally a whig. He served several terms in 
 the state legislature and in congress. In 
 the legislature he was instrumental in the 
 passage of the measure under which the 
 constitutional convention of 1846 was held. 
 He was elected governor in 1846, occupying the office from 1847 to 1849. 
 
HURCH, JAMES CONGDON (born in Wickford, Rhode 
 Island, May 24, 1861), is the son of Thomas T. Church and 
 Phebe F. Church, both descendants of Colonel Benjamin 
 Church, 1 who settled in Massachusetts shortly after the land- 
 ing of the Mayflower, and who was in military command of the colo- 
 nists in the various Indian wars. 
 
 Removing at an early age to New Utrecht, Long Island, he was 
 educated in the public schools of Brooklyn, New York, graduating 
 from " Old 15 " in 1878. In 1880 he entered the law office of Morris & 
 Pearsall, reading law with such close application that in September, 
 1883, he was admitted to the bar. Continuing with Morris & Pearsall 
 until 1887 he then entered into partnership with Cornelius Furgueson, 
 Junior, a business relation which still exists, and soon became engaged 
 in litigations involving large interests. 
 
 One of his first cases was the defence of Congressman Tom L. John- 
 son against the Atlantic Avenue Railroad Company, of Brooklyn, in 
 which he succeeded not only in relieving the congressman from a con- 
 tract with the company requiring an annual payment of $15,000, but 
 in maintaining an action against the railroad company for $300,000. 
 From this time forward his connection with important litigations was 
 rapid and continuous. He represented Shore Inspector Furguson in 
 the actions concerning the protection of the New York harbor, and in 
 the test case brought on behalf of persons engaged in dredging the 
 harbor and taken to the Court of Appeals, involving the question of 
 interstate rights between New York and New Jersey, and also of fed- 
 eral jurisdiction over New York harbor and of the constitutionality of 
 New York state laws. He formulated a rule of law applicable to the 
 case, which was adopted by the Court of Appeals and became a leading 
 authority on the question of state and federal rights. 
 
 As counsel for the town of New Utrecht in its various affairs rela- 
 tive to the issuing of its bonds, opening of roads and highways and 
 other public . improvements, he has conducted the litigations arising • 
 therefrom, questioning the legality and constitutionality of the bonds 
 and many of the acts affecting the town, without a defeat. Conspicuous 
 among these litigations was that concerning the New Utrecht gas con- 
 tract, under which the town had been lighted. The trial was most 
 bitter and public feeling ran high. The taxpayers alleged both gross 
 fraud and the unconstitutionality of the law. On both these points 
 Mr. Church sustained the contract. 
 
 The matters, perhaps, which have attracted larger general attention 
 
 1 In the Boston Historical Society, next to the sword tical eword that Colonel Church wore during the nu- 
 of Miles Standish, there is carefully preserved the iden- merous engagements ip which he took part. 
 
 535 
 
526 
 
 HISTORY OF THE BENCH AND BAK OF NEW YORK 
 
 have been in connection with Mr. Church's work as counsel and officer 
 of the Nassau Electric Railroad and the Kings County Electric Railway 
 Company, 1 in which his energies and resources as a lawyer were called 
 into tireless activity. 
 
 Although a large proportion of his business has been devoted to 
 railroad and corporation law, he is a general practitioner and has been 
 engaged in litigation upon almost every subject. He has been equally 
 successful both before juries and upon questions of law at either 
 special or appellate division of the court. His characteristics are a re- 
 markable memory, quick perceptions, and a knowledge of special sub- 
 jects which he brings to bear upon his cases. This was very humor- 
 ously illustrated in the trial of an action on behalf of a person who 
 had been bitten by a ferocious dog. The defendant claimed that 
 although the dog had been chained up, it was not on account of its 
 ferociousness, and to prove this he placed upon the witness-stand 
 a German gardener. Mr. Church in his cross-examination got the gar- 
 dener to describe the flowers that he was raising in the garden at the 
 time, and the gardener becoming enthusiastic gave a full description of 
 
 1 These corporations were formed in 1893 with the 
 idea of building over thirty additional miles of street 
 railway in the City of Brooklyn and the county towns. 
 As the building of these lines would have made serious 
 inroads upon the old-established lines, every obstacle 
 that was possible was thrown in the way of obtaining 
 the consents for their construction. Other railroad cor- 
 porations offered larger amounts to the common coun- 
 cil for the privilege, the matter was taken up by the 
 press, and the fight between the corporations and the 
 friends of the different companies was a bitter one. 
 Counsellor Church, however, by reason of his knowl- 
 edge of the county towns 1 affaire, executed a flank 
 movement upon the city railroad companies by obtain- 
 ing the consents of the local authorities of all of the 
 county towns previous to obtaining the consent of the 
 City of Brooklyn. He then contended before the local 
 authorities that the company which he represented was 
 theonly one which could give a continuous and unbroken 
 transit from the heart of the city to the outlying towns, 
 and that the benefits to be derived from this line were 
 greater than the acceptance of any mere money compen- 
 sation from the city railroad companies, which had not 
 and could not secure the consents of the outlying towns. 
 This argument prevailed with the authorities in Brook- 
 lyn and consent was granted to Mr. Church's railroad. 
 The question was then made a political one, and as the 
 benefits to be derived from this railroad were to be 
 borne by the county towns, and the city railroads had 
 more adherents in the city, persons were elected to 
 office on the issue of being opposed to the Nassau 
 Railroad. 
 
 Action was also begun by the taxpayers to annul the 
 grant which the Nassau company had received from the 
 City of Brooklyn. In the meantime contracts had been 
 made for the construction of the railroad with responsi- 
 ble parties, and the work of construction of the same 
 was being pushed with vigor. Every obstacle that 
 human ingenuity could devise waB now thrown in the 
 way of this railroad on behalf of taxpayers, public offi- 
 cials and opposition railroad companies, Night and 
 day Mr. Church was engaged in court or in other ways 
 
 endeavoring to fight the railroad through, arid piece by 
 piece the work of building steadily progressed. The 
 taxpayers' action to set aside the entire franchises was 
 tried, and for the first time in the enterprise Mr. Church 
 met with a severe defeat. Judge Smith, in April, 1895, 
 decided that the franchises Bhould be forfeited and that 
 the work of building the railroad should cease. Noth- 
 ing daunted by this crushing defeat, he proceeded with 
 determined energy to fight for the road. He obtained 
 from Judge Smith an order providing that if the entire 
 case was printed within forty-eight hours an appeal 
 should be heard immediately. As there were nearly 
 five hundred pages of manuscript to be revised, his 
 opponents regarded it as an impossibility and consented 
 to the order. Immediately arrangements were made with 
 one of the largest printing houses in New York City to 
 employ an extra force of men to do the printing. Per- 
 Boually, Mr. Church superintended the arrangement of 
 the manuscript, and for thirty-six hours never left his 
 desk until the last proof was delivered complete and 
 the printed case was served in accordance with the or- 
 der. Having thus got the case in position to be heard, 
 it was at once argued on appeal, and a few weeks later 
 the court, by unanimous decision, reversed the previous 
 ruling and dismissed the taxpayers' complaint. 
 
 Within ten minutes after the rendition of the decision 
 one thousand men were put to work to complete the 
 railroad, and within twenty-four hours a car was run 
 over the entire length of the same, and the next day the 
 line was thrown open to the public, and, adopting a uni- 
 form five-cent fare, received immediately an enormous 
 patronage. Before the end of the year negotiations were 
 had and it leased the old Atlantic Avenue Railroad 
 Company of Brooklyn, one of the largest railroads of 
 the city, and by this lease it thus became one of the 
 largest railroad systems in the country. But for this 
 work in pushing the case to completion a year would 
 have elapsed before the court could have heard the ap- 
 peal, and as over two million dollars had already been 
 expended by the company in actual construction, thq 
 loss would have been something enormous. 
 
HISTORY OF THE BENCH AND BAR OF NEW YORK 527 
 
 the beauties of his garden. Mr. Church, in an apparently innocent 
 manner, said to the gardener : " I suppose that the reason you kept 
 this dog chained up was to prevent his running over the garden and 
 destroying these tine flowers ? " The gardener at once replied : " Yes, 
 sir." Mr. Church turned to the jury and said : " Gentlemen, how many 
 of these fine flowers do you suppose were growing in this garden the 
 day that person was bitten, March 13, 1888, the day after the great 
 blizzard in this vicinity ? " and, amid the laughter of the spectators and 
 the confusion of Mr. Church's opponent, the jury promptly rendered 
 a verdict for a large amount. 
 
 In another instance, in the litigation concerning the Nassau Elec- 
 tric Railroad Company, the attempted construction of the Nassau Rail- 
 road upon Ocean avenue across the tracks of the Long Island Railroad 
 Company was resisted by the latter company. It had drawn a cordon of 
 locomotives and trains across the street and maintained them, so that it 
 was impossible either for the rails of the Nassau company to be laid or 
 its cars to be run. Mr. Church, who was on the ground directing what 
 should be done, requested "the police to arrest the employees of the 
 Long Island Railroad Company for blocking the highway. The em- 
 ployees of the Long Island Railroad Company grinningly submitted 
 to arrest, but refused to remove the engines from the highway, and 
 apparently the situation was no better for the Nassau Railroad than 
 previously to the arrest. Mr. Church showed that he was not only a 
 lawyer but a man of resource in this emergency by at once climbing 
 into the cab of one of the locomotives and running it out of the way, 
 and thus gave an opportunity for the tracks to be laid and his cars to 
 cross. 
 
 In addition to the faculties which Mr. Church thus possesses is his 
 absolute devotion to any interests intrusted to his charge. When he 
 takes up any litigation the ordinary pleasures of life, the necessity for 
 eating and sleeping, seem to be forgotten by him, and every particle 
 of energy that he possesses, every ounce of nerve force is all bent in 
 the endeavor to secure the necessary result. 
 
 Although Counsellor Church has thus won these results in actual 
 litigation, yet a very large proportion of his success has been in his 
 ability of taking hold of affairs that were in a complicated condition 
 and arranging them to the great advantage of his client without litiga- 
 tion. In all matters of this kind Mr. Church possesses all the arts of 
 the diplomat. He is in good favor and well liked by all of the mem- 
 bers of his profession and by all with whom he comes in contact, and 
 by his suave manner and excellent common sense has made many 
 very advantageous arrangements in behalf of clients whom he has 
 represented. 
 

 
 
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