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 Lawyer and client :or, The trials and tr 
 
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 http://www.archive.org/details/cu31 92401 87871 96 
 
LAWYER AND CLIENT 
 
 TRIALS AND TRIUMPHS OF THE BAR. 
 
 ILLUSTRATED BY 
 
 SCENES U THE COURT-ROOM, 
 Etc., Etc. 
 
 BY 
 
 L. B. PHOCTOR, 
 
 AnTHOR OP 
 
 "the bench and bar," "lives of the new yobk chau- 
 
 CBLLOKS," "eminent LAWYERS AND STATESMEN," 
 ETC. 
 
 SECOND EDITION. 
 
 NEW YORK : 
 S. S. PELOUBBT & CO., 
 
 LAW PUBLISHEES. 
 
 1883. 
 
COPTKIGHT, 1883, 
 1. S. FELOTIBBX & CO. 
 
I IsT T E O D U O T I O N 
 
 SECOND EDITION. 
 
 The warm welcome which the first edition of this 
 work received from the profession, the press and the 
 general public, has necessitated the publication of 
 another, although little more than eight months 
 have elapsed since the appearance of the first. The 
 success of the work is attributable, in a large degree, 
 to the general awakening in the legal profession 
 to the advantages of a more thorough cultivation of 
 literature, especially legal literature. It is now fully 
 understood that to complete a lawyer's education 
 something more is needed than a mere formal knowl- 
 edge of law, acquaintance with abstract precedent, or 
 the procedure of the code and the courts ; that these 
 reduce the practitioners to legal artisans, substituting 
 for legal principles mere empiricism, discouraging the 
 
 [ ^ 
 
INTRODUCTION. 
 
 acquirement of a scientific, liberal and philosophic 
 knowledge of the law. 
 
 It was said by Burke, that " all professions, fol- 
 lowed by intense application, tend to narrow the intel- 
 lect." There are men who think that assumed gravity, 
 dulness and intellectual torpidity are evidences of 
 profundity, the outcome of deep meditation and rati- 
 ocination ; that brilliancy indicates want of erudition, 
 and is superficial. But a little thought convinces us 
 that gold is none the less valuable for being wrought 
 into elegant forms and richly embossed ; that the 
 solidity of a building is not destroyed by adding 
 beauty and ornament to it ; that the strength of a 
 man's understanding is not to be estimated in propor- 
 tion to his want of imagination, his literary taste or 
 poetic fervor. Hence the poet has justly said : 
 
 "How charming is divine philosophy, 
 Not harsh and crabbed, as dull fools suppose, 
 But musical as Apollo's lute." 
 
 The cultivation of an elegant and refined literary 
 taste produces the same effect upon the mental struct- 
 ure as does that architecture which at once strength- 
 ens and embellishes an edifice. Who has not seen the 
 driest matter-of-fact, the most obtuse question of law 
 enlivened, enforced and pointed, by some apt illustra- 
 
INTRODUCTION. 
 
 tion, or by some pleasing literary quotation? Who 
 has not seen a speaker at the bar, while adapting him- 
 self to the strictest rules of logic and legal oratory, 
 evince the richness of his intellect and of a chaste liter- 
 ary taste by adorning the coldest theme with a 
 diamond, a rich peafl of thought ? 
 
 It was in part the literary elegance of Chancel- 
 lor Kent's mind that prompted an illustrious English 
 statesman to say : "As proudly as Phidias's statue of 
 Minerva presented in her open palm, to the Athenians, 
 the figure of Pericles, so does the genius of the State of 
 New York present that of her Kent to the world." 
 
 It was the literary taste of Webster, Choate, Wirt, 
 Seward, Brady and Hoffman that rendered them, and 
 many others, intellectual giants and legal gladiators. 
 
 The author has endeavored to render his work ap- 
 propriate to that legal literature which has become, as 
 we have said, so important to the profession, and at 
 the same time to render it acceptable to the taste of 
 the general public. He has endeavored to exhibit the 
 effect of a varied intellectual training to lawyers, by 
 portraying its advantages to the actual relation be- 
 tween lawyer and client, especially to that part of 
 practice confined to the struggles of the court-room. 
 
 One^ of the sources of his encouragement, and 
 which causes him to believe he has succeeded, is the 
 
INTRODUCTION. 
 
 numerous congratulatory letters he has received from 
 the most distinguished legists and litterateurs, to whose 
 decision the profession and the public unhesitatingly 
 defer, and whose candor is equal to that erudition 
 which renders them so distinguished and so highly 
 esteemed. L. B. P. 
 
 Bkooklyn, August 2d, 1883. 
 
INTEODUOTIOK 
 
 It was truthfully said by a great British lawyer and 
 statesman, that " there is no section of the world's hopes 
 and struggles which is so replete with so much anima- 
 tion of contest — such frequent recurrence of triumpliant 
 results and depressing defeats as the practice of law 
 before juries — the grotesque and passionate forms of 
 many-colored life with which the lawyer becomes 
 familiar ; the truth, stranger than fiction, of which he 
 is the depository ; the multitude of human affections 
 and fortunes of which he becomes, in turn, not only 
 the representative but the sharer. 
 
 " At one time the honor of a man's life may tremble 
 in his hands, then he may be the last prop of sinking 
 hope to the guilty, or the sole refuge clasped by the 
 innocent, or be called upon to rebuke oppression, cru- 
 elty, fraud and deceit." 
 
 The court-room is a stern, often a terrible reminder 
 that all the world is a stage, where suspense in its most 
 
INTEODUCTION. 
 
 terrible form is found — where scenes that touch the 
 heart and open the fount of sympathy are daily enacted. 
 
 To many, it is the stepping-stone to the scaffold, 
 To many, the verge of a felon's prison. To others, it 
 is the loss of all they possess in the world. Their repu- 
 tation departs forever — the lawyer represents all inter- 
 ests here — he and his client are one. 
 
 There are occasions when the bar, for a brief period, 
 is something like a comedy, when ripples of merriment 
 run over Bench, Bar, jurors and auditors, and witticisms 
 go forth to the world never to be forgotten, that 
 enliven and amuse all classes of society. 
 
 Therefore, all persons are more or less interested in 
 the business which is done in courts of justice. 
 
 The following work is designed to exhibit to 
 readers the lights, shadows, scenes and events of the 
 court-room, which so largely and deeply affect society. 
 
 The incidents and scenes here portrayed are real, 
 many of them historic scenes that cannot fail to impart 
 instruction and arouse emotions of sorrow, sympathy 
 and merriment in the heart of the reader. 
 
 L. B. P. 
 
 Dansville, N. y., August, 1882. 
 
OONTEl^TS 
 
 Aaron Bubr and Alexandeb Hamilton. 
 
 PASS 
 
 Aaron Burr and Alexander Hamilton in the Court-room — 
 The Trial for Murder — The Perjured Witness — How 
 he was caught by Burr — A Thrilling Scene — Theodo- 
 sia and her Father — Burr Shooting at a Target 1 
 
 Power of Courts of Justice to Punish Contemptuous 
 Lawyers. 
 
 Instances where Judges have Punished Refractory and In- 
 solent Lawyers — How Judge Kent dealt with a Dis- 
 honest, Brow-beating Lawyer H 
 
 A Divorce Fiend. 
 
 A Lawyer entraps his Wife into a Divorce under Circum- 
 stances of Unparalleled Cruelty^Touching Scene — 
 The Tables Turned — The Divorce set aside — Stern 
 Rebuke by a Judge 18 
 
 William H. Seward at the Bab. 
 
 Algernon Sidney, Seward and the Higher Law — Trial of 
 Wyatt. — Dramatic Scene in the Court-room — The 
 State Prison Whipping-Post— John Van Buren — 
 Seward's Grave — The Negro Freeman 29 
 
 [vii] 
 
Vm CONTENTS. 
 
 A Lawsuit Tried by Ladies. 
 
 PAGB 
 
 How they used Legal Authorities — They are brought 
 to Trial for Practicing without a License — Descrip- 
 tion of the Trial— Result of the Trial— A _ Magis- 
 trate issues a Warrant Against his own Wife, for 
 Stealing 49 
 
 Obdeal of Blood. 
 
 A Dark Superstition invoked to Detect a Murderer — What 
 It Declared — ^Famous Trial of Medad McKay for the 
 Murder of Ins Wife — Brilliant Array of Counsel— 
 Hair-breadth Escape — The Missing Seal — Effect of 
 Outward Circumstances on Juries 64 
 
 Alexander Hamilton and Chief Justice Pabsons in the 
 couet-room. 
 
 Recollections of Erastus Root — An Illustrious States- 
 man of the State of New York — A Break-Down in 
 Congress — A Chance Shot — Great Libel Suit — Root 
 V. King and Verplanck, Editors of the New York 
 American — Judge Betts on Newspapers 76 
 
 Lights and Shades of the Coubt-Room. 
 
 Incidents in the life of Thomas A. Johnson, derived from 
 a long and Brilliant Career on the Bench — Personal 
 Appearance — His manner — Sententious and Humorous 
 Charge in the case of the Lost Thumb — The Biter Bit 
 — The Card Player in Court — Johnson's opinion of a 
 good whist-player — How he dealt with a soft-hearted 
 Jury 91 
 
 Abtistio and Mental Pobtkaits of four Eminent Law- 
 yers and Statesmen op Western New York. 
 
 John C. Spencer. — Francis Granger — Gideon Granger — 
 Pleasing Circumstances and Incidents'in their Lives- 
 Portrait of an Illustrious Orator and Statesman 106 
 
CONTENTS. IX 
 
 A DtjsKY Advocate. 
 
 PAOB 
 
 A Son of the Forest at the Bar— Jled Jacket's Address to 
 the Jury in a Murder Case — His Temperance Address at 
 Avon Springs— Court Scene at Batavia— An Anecdote 
 1 —How a Poet Paid a Debt 118 
 
 Robert Emmet, The Lawyer, Patriot and Martyr. 
 
 Curran, the Great Irish Lawyer and Orator — Emmet's Plan 
 for the Emancipation of Ireland — Its Failure — Assassin- 
 ation of the Chief Justice — Strange Presentiment — 
 Emmet's Arrest and Escape — His Strong Affection for 
 Sarah Curran Ardently Returned — His Re-Arrest and 
 Trial — Thrilling Speech Before Sentenced to Die — ^His 
 Execution — Miss Curran Faithful to the Last — Her 
 Death — A Broken Heart 135 
 
 A Young Lawyer's Tilt with a Legal Bull-Dog. 
 
 A Distinguished Lawyer's First Case — He Meets a Legal 
 Bull-dog — Conceit, Ignorance and Impudence Re- 
 buked — Rampant Speech of a Pettifogger — Ancient 
 Lights 140 
 
 A Celebrated Lawyer. 
 
 In Jail for Contempt of Court — Chancellor Livingston and 
 the Chief Justice of the State at War— Livingston 
 Prosecuted for False Imprisonment. 148 
 
 Burning op " The Caroline " — ^Trial of Alexander 
 McLeod for Burning Her. 
 
 Singular Incidents in the Trial— The Habeas Corpus- 
 Joshua A. Spencer— Bank Note Trial— The Burning 
 Bank Notes ^ 160 
 
x contenss. 
 
 Daniel Webstbk and William Pincknet. 
 
 FAQB 
 
 Severe Altercation Between Them — Singular Trait in the 
 Character of Webster — The Story Doubted— Pinckney 
 and Thomas Addis Emmet — Bitter Attack of Pinckney 
 on Emmet in tlie United States Supreme Court — A 
 Magnanimous Rebuke and a Generous Apology — Web- 
 ster and Hayne 168 
 
 Singular Case op Mistaken Identity in a Criminai. 
 
 Case. 
 
 Narrow Escape of an Innocent Man from Conviction of the 
 Crime of Bigamy — His Striking Resemblance to the 
 Real Criminal — He is Saved by a Singular Circum- 
 stance in the Court-room 185 
 
 Hunted Dowu bt Enemies. — A Historic Trial. 
 
 Force of Circumstantial Evidence— Fate of David D. Howe 
 —Dreadful Revenge and its Provocation — John C. 
 Spencer's Great Argument — A Fearful Prophecy Ful- 
 filled 197 
 
 Author op "The Burial at Sea" — Poet and Lawyer. 
 
 Circumstances under which the Poem was Written — A 
 Lawyer and Journalist of Other Days — Literary Galaxy, 
 Bryant, Morris, Irving, Carter, Percival and Fay — The 
 New York Mirror 309 
 
 Bulldozing Witnesses. 
 
 A Cross-examination Ad Nauteam Usque— Y&\je, of the Bull- 
 dozer—Amusing Description of a Trial 319 
 
 A Dramatic Scene in the United States Supreme Court. 
 
 Trial of Aaron Burr— Great Stroke of Policy on the Part 
 of Burr — The Subpoena Duces Temm for President 
 Thomas Jefferson— Singular Attack on Him— Its Re- 
 sult—Burr's Triumph— His Boldness and Eloquence- 
 Opinion of Chief Justice Marshall 336 
 
contents. xi 
 
 Ibish Lawtbbs. 
 
 PAOE 
 
 Recollections of William Sampson, Author of "The Irish 
 Emigrant " — His Amusing Defense of Dr. Little — A 
 Distinguished Physician with a Sable Wife 237 
 
 Chief Justice MABSHAiiL and some of His Associates. 
 
 His Early Struggle with Poverty and Subsequent Triumph 
 — A Tilt with Patrick Henry — Marshall's Elevation to 
 the Bench — An Account of Judges Jay, Story, Patter- 
 son and others — An Estimate of Marshall's Character, 
 Attainments and Position 250 
 
 Two GrKEAT GOVERNOKS OF THE PaST. 
 
 Clinton and Tompkins — The Young Forger — Powerful Ef- 
 forts for His Pardon — How Tompkins Exercised the 
 Pardoning Power — How Clinton Exercised it — Tomp- 
 kins' Decisive "No" More Pleasing than Clinton's 
 "Yes" — Characteristics of the two Governors Con- 
 trasted 363 
 
 Recollections of William Pinknet of Maryland. 
 
 The Young Continental Soldier and his Tory Father — 
 Young Pinkney and the Continental Artillerist — A 
 Dead Shot — Pinkney and the Debating Club — How he 
 Beat his Opponent — The Lawyer, Statesman and For- 
 eign Minister — Amusing Scene at the Court of St. 
 Petersburgh 376 
 
 John Randolph and Mabtin Gkovbe at the Bab and in 
 congkess. 
 
 Their Personal Appearance Compared — Webster's Terse 
 Description of Randolph — His Significant Gesture — 
 Grover's Scorching Address to the Jury in a Breach of 
 Promise Case = 288 
 
Xll CONTENTS. 
 
 Chancellor Reuben H. Wal-wokth on the Bench. 
 
 The Circuit Judge — Tries the Three Thayers — Appointed 
 Chancellor — Description of Mansfield Walworth as a 
 Young Man — Scenes with a Law Student Seeking Ad- 
 mission Under DiflSculties — Appearance of Walworth — 
 Compared with Judge Marshall— His Singular Manner 
 on the Bench — Scenes and Incidents S93 
 
 Mabtin Van Btjeen. 
 
 His Student and Law Partner, Benjamin F. Butler — Their 
 Career at the Bar — Their Compeers and their Enemies 
 — Their Triumphs at the Bar — The Founders of the 
 Democratic Party .,..,..., 313 
 
 Rorus Choate at the Bar. 
 
 Relations with His Client — As a Criminal Lawyer — Can an 
 Advocate Consistently with Honesty Defend a Person 
 He Knows to be Guilty — The Answer — Choate's 
 Defense of Tirrell — Its Analogy to Ogden Hoffman's 
 Great Defense of Richard P. Robinson for the Murder 
 of Helen Jnwet.t — His Wit and Pleasantry at the Bar — 
 Characteristic Anecdote — His Personal Appearance. . . 335 
 
LAWYER AISTD CLIENT. 
 
 AARON BURR AND ALEXANDER HAMILTON. 
 
 Aaron Burr and Alexander Hamilton in the Court-room — The 
 Trial for Murder — The Perjured Witness — How he was 
 Caught by Burr — A Thrilling Scene — Theodosia and her 
 Father — Burr Shooting at a Target. 
 
 Ik the Autumn of the year 1818, a court held its 
 sittings at Utica, N. Y., which was largely attended by 
 legal gentlemen from various parts of the State. As 
 the second day of the term was drawing to a close, a 
 gentleman, whose appearance indicated that he had 
 just arrived in town, entered the court-room, and, 
 walking directly to the bar, seated himself among the 
 lawyers. There was something in his appearance that 
 attracted attention. The most casual observer could 
 not fail to detect in his bearing a natural ease, an un- 
 definable superiority which so silently, yet truthfully, 
 evinces familiarity with refined society. He had ap- 
 parently numbered fifty years, and yet time had "'lightly 
 pressed its signet seal " upon him, for much of the 
 
 LI] 1 
 
2 LAWYEK AND CLIENT. 
 
 vivacity of youth still lingered on his visage. His hair 
 had began to turn gray, and at the side of his head was 
 slightly bushy, but worn back from his face and tem- 
 ples left his broad, high forehead quite bare, giving a 
 classic cast to his features. His cheek was pale and 
 thiA, his brow thoughtful and tinged with the shadow 
 of care, perhaps of sorrow, while his black, brilliant 
 and singularly fascinating eye lighted up and animated 
 a face which once seen could never be forgotten. He was 
 below the ordinary stature, and his frame was some- 
 what slender, though well knit and fair proportioned. 
 Finally, the tout ensemble was that of a gentleman — a 
 man of intellect, acquainted with the world, with men, 
 and, withal, a penetrating judge of character. 
 
 As he entered the bar, Martin Van Buren was in the 
 act of closing an argument that had occupied the atten- 
 tion of the court several hours. Turning to take his 
 seat, he recognized the stranger who was near him. 
 
 " Colonel Burr !" said Van Buren, in a low voice, 
 extending his hand, "I am very glad to see you. Our 
 cause was reached this morning, but as I could not 
 think of defaulting you in your absence, which I be- 
 lieved to be unavoidable, I exchanged our case with the 
 one just submitted. I hope. Colonel, you are well." 
 
 " Quite well, I thank you. I am obliged to you for 
 your courtesy. I did not leave New York quite as soon 
 as I expected, and it is a long way here, Madam 
 Justice is getting mercurial, I fancy, since she is estab- 
 lishing her temples so far in the interior of the State. 
 But I suppose our case is the next one to be tried." 
 
 " No, Colonel, I am sorry to say that there is a pre- 
 ferred cause of some kind that is to be disposed of next." 
 
AAEON BUEK AtTD ALEXAN'DEE HAMILTON. 3 
 
 At this period in the convei'sation, the voice of the crier 
 announced the adjournment of court until the next 
 morning, and the two lawyers left the court-house 
 together. 
 
 The reader is already aware that the stranger who has 
 been, described was Aaron Burr — a name conspicuous 
 in American history. His fall from greatness — his 
 pecuniary misfortunes — had compelled him to resume 
 the practice of a profession in which he had few, if any, 
 rivals, and which had been to him a stepping-stone to 
 the highest honors. 
 
 He was at Utica on this occasion, as the opponent of 
 Martin Van Buren in one of those great ejectment suits, 
 which, in the early history of the State, occupied so 
 much of the attention of its courts. Van Buren, at 
 , this tinie, was one of the ablest lawyers at the bar — a 
 state senator and a politician of rare political abilities, 
 skilled in the art of managing the inclination and preju- 
 dices of the j/eople, wielding an iniiuence whicli ren- 
 dered him a powerful, if not successful, rival of De 
 Witt Clinton. 
 
 Col. Burr was at this time unknown in the politics 
 of tTie State and nation, though he had occupied a seat 
 in the Senate of the United States ; had contended 
 with Jefferson for the presidential chair of the nation, 
 missing the great prize by one vote, and winning the 
 Vice-Presidency with little opposition. He was now 
 merely the lawyer. A few years after his admission to 
 the bar, he removed from Albany to New York city, 
 where he became a successful, though friendly, rival of 
 Alexander Hamilton. It has been said that each of 
 these great men had a high, if not an exalted opinion 
 
4 LAWYER AND CLIENT. 
 
 of the other's talents. " To the strength and facility 
 of Hamilton's imagination, his fine rhetorical powers, 
 — his occasional flashes of poetical genius, his acute 
 reasoning powers, and the force of his declamation, Burr 
 paid the tribute of admiration. The latter yalued him- 
 self little upon his oratorical powers. His pleadings at 
 the bar were more in the style of conrersation than ora- 
 tory — the conversation of an enlightened, well-educated, 
 thoroughly-disciplined lawyer. In replying to Hamilton's 
 splendid legal speeches, he would select the vulnerable, 
 yet vital points, and quietly demolish them, leaving all 
 the other parts untouched. In a twenty-minute speech 
 he has been known to completely neutralize the effect of 
 one of Hamilton's long, elaborate and ornate addresses." 
 Hamilton and Burr were occasionally associated in 
 the trial of a cause. On such occasions they were 
 almost irresistible. It is related that, on one occasion, 
 they were retained to defend a man indicted for mur- 
 der, and who was generally believed to be guilty, though 
 the circumstances under which the crime was commit- 
 ted rendered it a deejily interesting case of circumstan- 
 tial evidence. During the progress of the ti'ial, as the 
 circumstances were developed, suspicion began to at- 
 tach to the principal witness against the prisoner. Burr 
 and Hamilton brought all their skill in cross examina- 
 tion to bear on the witness, in the hope of dragging 
 out of him his dreadful secret. But with singular 
 sagacity and coolness he eluded their efforts, though 
 they succeeded in darkening the shadows of suspicion 
 that fell upon him, and strengthening their convictions 
 of their client's innoceace. 
 
AAEON BUKB AND ALEXANDER HAMILTON. 5 
 
 Before the cross examination of the witness was 
 concluded, court adjourned for tea. 
 
 "■ I believe our client is nob guilty, and I have no 
 doubt that Brigham, that cunning witness, is really 
 the guilty man, but he is so shrewd, cool, and deep, 
 that I am fearful his testimony will hang poor Blair, 
 our client, in spite of all we can do," said Hamilton to 
 Bnrr, while on their way from the court-house to their 
 hotel. 
 
 '<! agree with you; Blair is not guilty and that 
 Brigham is, and I believe we can catch him. I have a 
 plan that will detect him, if I am not wonderfully mis- 
 taken," said Burr. He then proceeded to explain to 
 his associate the nature of his plan. 
 
 "You may succeed," said Hamilton, after listening 
 to the plan. " It's worth trying, at any rate, though 
 you have a man of iron to deal with." 
 
 After tea. Burr ordered the sheriff to provide an 
 extra number of lights for the evening session, and to 
 arrange them so tihat their rays would conrerge against 
 the pillar in the court-room near the place occupied by 
 the witness. 
 
 The evening session opened, and Burr resumed the 
 cross examination of the witness. It was a test of the 
 profound skill and subtlety of the lawyer, the self- 
 possession, courage and tact of the witness, standing on 
 the very brink of a horrid gulf, calmly and intrepidly 
 resisting the efforts of the terrible man "before him to 
 push him over. At last, after dexterously leading the 
 witness to an appropriate point, Burr suddenly seized a 
 lamp in each hand, and holding them in such a man- 
 ner that their light fell instantaneously upon the face 
 
6 LAWTEE AND CLIENT. 
 
 of the witness, he exclaimed in a startling voice, like 
 the voice of the avenger of blood — " Gentlemen of the 
 jury, behold the murderer !" 
 
 With a wild, convulsive start, a face of ashy pallor, 
 eyes starting from their sockets, lips apart, his whole 
 attitude evincing terror, the man sprang from his chair. 
 For a moment he stood motionless, struggling to regain 
 Ms self-possession. But it was only a momentary 
 struggle ; the terrible words of the advocate " shivered 
 along his arteries," shaking every nerve -with paralyzing 
 fear. Conscious that the eyes of all in the court-room 
 were fixed upon him, reading the hidden deeds of his 
 life, he left the witness stand, and walked shrinkingly 
 to the door of the court-room. But he was prevented 
 from making his escape by the sheriff. This scene, so 
 thrilling and startling, may, perhaps, be imagined, 
 though it cannot be described. Like the fall of David 
 Deans, in the court-room, before judges, jurors and 
 lawyers, when the doom of Effie, his youngest daugh- 
 ter, was pronounced by the testimony of her elder sis- 
 ter, Jeanie Deans, it struck the spectators with silent 
 awe, changing the whole aspect of the trial, overthrow- 
 ing in an instant the hypothesis which the Attorney 
 General was confident would send the prisoner to the 
 gallows — saving an innocent man from the deathful 
 hands of a bold and skillful perjurer. 
 
 The false witness was arrested, two indictments 
 found against him, one for murder, another for 
 perjury. He was acquitted on his trial for murder, 
 but subsequently convicted of perjury and sentenced to 
 a long imprisonment. 
 
 The high-toned liberality and generosity with which 
 
AAEON EUEE AND ALEXANDEE HAMILTON. 7 
 
 Hamilton and Burr conducted the contests of the bar, 
 created no bitterness or animosity. They continued 
 friends until they became great partisan leaders — until 
 the polluting influence of politics, their collisions as 
 rival statesmen, created that relentless antagonism, 
 which culminated in the tragic scene when Hamilton 
 fell by the hand of Burr, in the most famous duel in 
 history — a duel which doomed its survivor to obloquy 
 and reproach which he never outlived, and which, with 
 the alleged treason for which he was tried and acquitted 
 in 1807, ostracised him from his rank among the great 
 men of the nation. 
 
 At the time Burr is introduced to the reader he had 
 long drank of the Marah of the waters of disappoint- 
 ment and sorrow, had long labored at the task of Sisy- 
 phus, the mountain arid rock. ♦ 
 
 It was Theodosia, his daughter, so lovely, so pure, 
 so intellectual, so haughty, and yet so soft and gentle, 
 that opened to Aaron Burr the brightest page in this 
 blotted volume of his life. " She was nearly a complete 
 realization of his ideal of a woman." Upon her he lav- 
 ished the wealth of a soul that overflowed with secret 
 tenderness. Long after his fall from power, she was 
 the solitary star, shining in beautiful luster over the dark- 
 ened and rough pathway of his life. 
 
 During his trial for high treason at Eichmond, in 
 1807, Theodosia — then the brilliant leader of society in 
 themostaristocraticcity of the South, the wife of Joseph 
 Alston, a distinguished citizen of South Carolina — by 
 her devotion, sagacity and influence, powerfully aided 
 her father's defense. In the darkest hour of that mem- 
 orable legal drama, she evinced her deep affection in 
 
8 LAWYER AND CLIENT. 
 
 language as heroic as it is beautiful. " My yanity/' slie 
 said, " would be greater if I had not been placed so near 
 you ; and yet, my pride is our relationship. I had ra- 
 ther not live than not be the daughter of such a man." 
 
 A few years after the Richmond trial, which resulted 
 in a victory for Burr, Theodosia met a fate which is 
 still enveloped in gloom and mystery. At the close of 
 the year 1812, she sailed from Charleston in a vessel 
 bound for New York, for the purpose of visiting her fa- 
 ther. Her husband was then Governor of South Carolina; 
 though he provided everything conducive to her safety 
 and comfort, which wealth and influence could com- 
 mand, the vessel never reached its destination — was never 
 heard from after leaving Charleston harbor. At last all 
 hope ended ; the certainty that Theodosia was dead came 
 home to them, and Aaron Burr was bereaved as few 
 have ever been bereaved — left to "a life all winter, war 
 within himself to wage." Still the properties of a mind, 
 stern, uncomplaining and calm, a profound, scheming, 
 subtle and powerful intellect, sustained him ; and while 
 the musings of his solitude became a votive offering to 
 the dead — a rightful homage to their memory — he re- 
 tained superiority among men, and brilliancy at the bar. 
 He was endowed by nature with the power of gaining 
 ascendancy over those with whom he was brought into 
 contact. Whenever he desired to please, he could exer- 
 cise blandishments which none but Aaron Burr ever 
 possessed. Then he had attractions for all — smiles for 
 the silent, deep attention for the loquacious, badinage 
 for the gay, sentiment for the grave, and romance for 
 the young. 
 
 Colonel Burr was compelled to remain at TJtica sev- 
 
AAEON BUKR AND ALEXANDER HAMILTON. 9 
 
 eral days. During li^s stay he divested himself of that 
 reticence and coldness which usually characterized his 
 intercourse with strangers, and he became a general 
 favorite with the members of the bar who were present. 
 
 One afternoon a number of young lawyers amused 
 themselves by shooting at a target with pistols. As the 
 exercise continued long after the adjournment of court 
 for the day, many lawyers and others who were attend- 
 ing court assembled to witness the sport. Among the 
 deeply interested spectators was Col. Burr. While 
 keenly watching the effect of each shot, two young law- 
 yers who had been engaged in shooting, approached 
 him. 
 
 "Col. Burr," said one of them, "we should be very 
 happy to witness your skill at target-shooting." 
 
 "My skill at target-shooting ? How came you to 
 suppose I had any skill as a marksman?" said Burr, fix- 
 ing his piercing eye upon the speakei". 
 
 " You are an old soldier, Col. Burr, and we have al- 
 ways heard you spoken of as the best shot in America," 
 said the young man. 
 
 "It is many years since I was a soldier, and I have 
 had but little practice with the pistol since leaving the 
 army. Times of peace do not — or, at least, they should 
 not — furnish many occasions for the use of that weapon, 
 since those occasions often leave a lasting regret. But 
 as your invitation to Join your sport was so respectfully 
 given, I will accept it. At least, I will shoot once at 
 the target. That will be sufficient for my unpracticed 
 hand. Let me see your pistols." 
 
 Several were brought him. Selecting one of them, 
 he balanced it a moment in his hand, sighted across its 
 
10 LAWYEE AND CLIENT. 
 
 barrel, then, taking his stand at the line from which 
 each contestant fired, he raised his arm and presented 
 the pistol. 
 
 It was a moment of intense, almost dramatic, inter- 
 est. Before the spectators, pistol in hand, stood Aaron 
 Burr, the very arm OLiLjlrctched which, on the hights 
 of Weehawken, laid the illustrious Hamilton cold in 
 death. The eye that was now sighting the pistol had 
 gleamed along a deathful weapon in mortal combat ; 
 had beheld his foe sink at his feet, bathed in blood. 
 But a quick flash — a sharp report broke the spell that 
 held the spectators — the bullet had sped. Aaron Burr 
 had sent it home to the center of the target. A faint 
 smile iDassed over his features as an exclamation of as- 
 tonishment announced the unerring shot. Handing the 
 weapon to its owner, he turned and left the field with- 
 out uttering a word. 
 
 Note. — The bold, dangerous but ingenious act narrated on p. 6 haa 
 been attributed to Hamilton ; but the intelligent reader will agree with the 
 author of this work that it was not at all characteristic of Hamilton, 
 who was seldom, if ever, known to resort to strategy at the bar, while 
 Burr was as adroit in legal as he was in military strategy; a great law- 
 yer in every sense of the word. In his youth, it was the author's good 
 fortune to know Col. John Graham, a native of the city of New York, 
 a student, and I believe a graduate of Columbia College, a gentleman of 
 the highest standins; and intelligence who died about twenty-seven years 
 ago, at the iige of seventy-five yeai-s. He was intimately acquainted with 
 Burr and Plamilton. From Col. Graham, the author iirst obtained his 
 information touching the incident related in the text. " I remember," 
 said Col. Graham, "hearing of the event when it happened; and I used 
 to hear Col. Burr relate it. ' It was very hazardous,' he would say, ' I 
 should never dare attenjpt such a thing again, for I am sure I should fail, 
 but all the .lircumstances happened to favor its successful execution.' " 
 
 The author also used to hear Gen. Erastus Root, of Delaware Co, 
 N.Y., who knew Burr and Haiuilton, relate rhe circumstance precisely as 
 G'ol. Graham bad. Mr. Barton also relates it in about the same mariner. 
 
POWEE OP COURTS OP JUSTICE TO PUNISH 
 CONTEMPTUOUS LAWYERS. 
 
 Instances wliere Judges have Punished Refractory and Inso- 
 lent Lawyers — How Judge Kent dealt with a Dishonest, 
 Brow-beating Lawyer. 
 
 Theee is no class of men who possess more power 
 than do judicial officers of every grade when presiding 
 in the court-room ; they can punish lawyers of the 
 most commanding talent, as well as the humblest mem- 
 bers of the bar, for any breach of decorum, any con- 
 tempt of court ; they can order into custody of the 
 sherifE any contumacious or disobedient witness, any 
 tardy or corrupt juror ; they can disarm and imprison 
 any disobedient or disorderly sheriff. In our courts of 
 justice we are accustomed to see a brilliant bar, a grand 
 and petit jury, a large assemblage of spectators, all ren- 
 dering silent and respectful obedience to a single judge. 
 This obedience is rendered to him as a minister of the 
 law. This is the reverence which the people have for 
 the law that protects them, and for the judge through 
 whom that law utters its voice and pronounces its judg- 
 ment. Occasionally cases occur in which judges are 
 compelled to enforce their power in punishing miscon- 
 duct and contempt in the court-room. This was the 
 case when the late Judge Gridley ordered those illus- 
 trious lawyers, John Van Buren and Ambrose L. Jor- 
 dan into jail for indulging in a personal contest or 
 
 [11] 
 
12 LAWYER AND CLIENT. 
 
 fisticufE during a famous anti-rent trial. These men- 
 one of them the son of a President of the United States, 
 Attorney-General of the State, and leader of the great 
 Democratic party ; the other one of the most renowned 
 lawyers and legislators of his day — spent a day and a 
 night in the cell of a common jail for contemptuous 
 conduct in the court-room. 
 
 We remember another incident, when the famous 
 find witty John Baldwin, for indulging in contemptu- 
 ous language in an Alleghany county justice's court, 
 was sentenced to imprisonment in the Angelica jail for 
 twenty days. By his own assurance and daring, how- 
 ever, he managed to escape. After the justice had 
 pronounced this sentence upon Baldwin he proceeded 
 to draw the mittimus which empowered the constable 
 to take the disrespectful lawyer into custody. The 
 justice, who was an indifferent and slow penman, was 
 a long time in preparing the somewhat technical docu- 
 ment. Baldwin, who watched his proceedings with 
 the deepest interest, waited until the magistrate was 
 about to sign the warrant, when he suddenly seized a 
 large inkstand full of ink and poured its contents oyer 
 the fearful paper, destroying in an instant the hard 
 work of an hour. This done, he mounted his horse 
 and escaped into Steuben county, beyond the reach of 
 another mittimus. 
 
 But Baldwin did not escape without pursuit. As 
 soon as order was restored, after the ink had been del- 
 uged upon the attachment, the justice commenced a 
 new one, while the impertinent lawyer mounted his 
 horse and fled homeward. Night had set in ; his ani- 
 mal was jaded and lame ; the rider corpulent and heavy. 
 
POWER OF COUETS. 13 
 
 But a beautiful autumnal moon lit up his dreary way 
 and he hoped to reach the Steuben county line before 
 the officers of the law, armed with a new process, could 
 overtake him. Bub, when within two miles of the goal 
 of safety, his ear caught the clatter of horses' hoofs on 
 the ground, and, looking back, saw two horsemen rap- 
 idly approaching. Knowing they were the officers 
 hastening to arrest him, and that escape by flight was 
 impossible, his fertile mind suggested another and more 
 successful mode of escape. Suddenly wheeling his 
 horse, and boldly facing his pursuers, he sternly in- 
 quired their business with him. They informed him 
 that they had an attaehpient, by which they were com- 
 manded to take him to Angelica jail, and that he must 
 accompany them thither. " Stand ofE, you scoundrels !" 
 roared Baldwin, " or I'll blow you through, for I am a 
 desperate and dangerous man." And he drew from 
 his pocket an inkstand enclosed in a long brass case, 
 presenting it at the breast of one of the officers. 
 
 Its polished surface flashing in the moonbeams, like 
 the bright barrel of a pistol, gave it a most murderous 
 appearance. The constable and his assistant started 
 back appalled. 
 
 "Leave me, you villains ! or, by the heavens above 
 us, I'll send a bullet through your hearts ! Leave, I 
 say !" and he gave the inkstand a shake, causing it to 
 click like the cocking of a pistol. 
 
 This was enough. The next moment his pursuers 
 were galloping homewards, and Baldwin continued his 
 way safely, thinking, as he afterwards said, his pro- 
 tecting genius that day had assumed the form of an 
 inkstand, for, in two instances, it had saved him from 
 
/' 
 
 14 LAWTEE AND CLIENT. 
 
 being severely injured for his bitter and contumacious 
 attack upon Judicial dignity. He was never afterwards 
 molested for his assault, contemptuous as it was. 
 
 There is another case in point. In the early days 
 of Buffalo, a leading lawyer was arguing a cause in the 
 Court of Common Pleas where one of the side judges 
 presided — the iirst judge not being on the bench. To 
 show his superiority, the juige often put irritating 
 questions to the counsel. To help the matter alorg, 
 the. two other side judges on the bench annoyed the 
 lawyer in a similar manner. 
 
 At last he could endure this no longer, and, paus- 
 ing in the midst of his argume,nt, he said : " If your 
 honors will excuse me, I would like to say that this 
 court reminds me of a Virginia rag-bag team." 
 
 "Well, sir, what kind of a team do you call that ?" 
 asked the Judge. 
 
 "It is a team, your honor, composed of two mules 
 and ajacJcass." 
 
 For this the lawyer was fined fifteen dollars and two 
 days' imprisonment. 
 
 On one occasion, when that learned and venerated 
 judge, William Kent, was presiding at a term of the 
 Supreme Court in the city of New York, a somewhat 
 singular and interesting case came before him, during 
 the argument of which he used his judicial powers for 
 punishing contemptuous conduct with much severity 
 and justice. A lawyer, with something of an unsavory 
 record, had been employed by a well-to-do business 
 man to collect a debt of about nine hundred dollars 
 but the matter ended in a miserable failure. The 
 action brought to recover the money was dismissed 
 
POWER OF COURTS. 15 
 
 with costs against the plaintifE. Some time after this, 
 his lawyer presented him a biU of fifteen hvindred 
 dollars for his services. As he declined to -pay it, 
 the lawyer commenced a suit in the Supreme Court 
 against him to recover it, and a legal contest was the 
 result. The attorney, not wishing to try the cause 
 hinjself, employed another counsellor of the name of 
 John Percy, who, like his employer, was one of the 
 flunkeys that infest the profession in that city and who 
 had, for his knavery, been disbarred. After the action 
 was commenced for the recovery of the fifteen hun- 
 dred dollars, the defendant procured an order from 
 the judge staying the proceedings of the plaintifE. 
 Disregarding this order, the lawyer entered up a judg- 
 ment against his former client — the defendant — for 
 fifteen hundred dollars, with interest and costs. There- 
 upon a motion was made to set aside this judgment 
 because rendered in disobedience of the order to stay 
 proceedings, and the motion came on to be heard before 
 Justice Kent. Lawyer Percy, to whom we have referred, 
 appeared in opposition to the motion ; whereupon the 
 counsel for the defendant in the judgment took the 
 preliminai'y objection that as Percy had been thrown 
 over the bar he could not appear in the case. The 
 Judge sustained the objection. This aroused the in- 
 dignation of Percy, who sprang to his feet and vehe- 
 mently insisted that there was no evidence before the 
 court proving that he had been thrown over the bar. 
 
 " This court, " said the judge, " has judicial 
 knowledge of all its facts." 
 
 "There is no jurisdiction shown in the order throw- 
 ing me over, and there is nothing in it to show that 
 the order was legaUy made, and I insist that I have a 
 
16 LAWYER AND CLIENT. 
 
 right to be heard here, and I demand my rights," said 
 the lawyer. 
 
 " You have no standing in court, Mr. Percy, any 
 more than a man convicted and under sentence for any 
 other crime has. Your appearance here, sir, as a prac- 
 titioner, is of itself a misdemeanor, for which yon will 
 have to answer to the proper tribunal," said the judge. 
 
 " But, your honor," continued Percy, " I must 
 and will be heard in this matter ; I desire to convince 
 your honor that I have been " 
 
 " Mr. Percy," said the Judge, very emphatically, — 
 a frown lowering over his unusually benevolent features, 
 "this court cannot and will not hear you any further. 
 You have been degraced from this bar, — and the court 
 desires that you will understand your unworthy position 
 and not compel us to remind you of it in a manner that 
 will teach you again that ' the way of the transgi'essor 
 is hard.' If, however, you will employ some respect- 
 able attorney to speak for you, the court will hear him 
 with pleasure in your behalf." 
 
 A Mr. Eichard Hosford, who had been associated 
 with Percy, arose and commenced an argument against 
 granting the motion to set aside the Judgment. After 
 he had been speaking a short time the Judge made a 
 statement to him referring to some alleged irregularity 
 in the plaintiff's proceedings. In a moment Percy was 
 on his feet again, exclaiming, " That is not so, your 
 honor, the motion papers do not show it." 
 
 " Sit down, Mr. Percy, or rather, continue to stand, 
 sir, and listen to the penalty which this court is about 
 to inflict upon you for your insolence and contumely. 
 Percy, the court sentences you to pay a fine of two 
 
POWER OF COUETS. 17 
 
 hundred dollars, and to stand committed in the com- 
 mon jail until the fine is paid, for a time not exceeding 
 thirty days. The sheriff will take the prisoner into 
 custody." 
 
 But the determined and insolent lawyer was not yet 
 silenced. 
 
 "Your honor, I cannot submit to this without " 
 
 " Silence !" thundered the judge, " another word 
 from your lips and I'll commit you to jail for the long- 
 est time the law will permit me, and increase your fine 
 double what it is now." 
 
 But the sheriff now appeared, took the lawyer into 
 his custody, and he soon became an occupant of a cell 
 in the Tombs. 
 
 The next day Mr. Hosford, in behalf of Percy, ob- 
 tained a writ of habeas corpus from one of the judges 
 of the Court of Common Pleas of the city of New 
 York, on the ground that the lawyer was illegally im- 
 prisoned. 
 
 At the conclusion of a lengthy and exhaustiye argu- 
 ment on both sides, Percy was remanded to jail. After 
 the lapse of several days some friends came to his assis- 
 tance, the fine was paid and Percy released. He never 
 again attempted to practice as an attorney-at-law in any 
 court. The judgment of fifteen hundred dollars was 
 set aside with costs, and the avaricious lawyer who ob- 
 tained it was heavily fined for disobeying, the order 
 staying the proceedings of his suit, 
 a 
 
A DIVOECE FIEND. 
 
 A Lawyer entraps his Wife into a Divorce under Circumstances 
 of Unparallelled Cruelty. — Touching Scene.- -The Tables 
 Turned. — The Divorce set aside. — Stern Rebuke by a Judge. 
 
 In the year 1856 there lived in the city of New York 
 a gentleman of the name of Lucius E. Bulkeley. He 
 was an Attorney and counsellor at law of respectable 
 standing, enjoying a very remunerative practice. 
 
 In 1850, he was united by marriage to an estimable 
 and accomplished young lady, the possessor, in her own 
 right, of considerable property. Two years after their 
 marriage a son was born to them, and their married 
 life bid fair to be one of happiness and prosperity. But 
 the brightest hopes and the most brilliant prospects 
 are often the soonest dissipated. 
 
 Not long after the birth of his child, Bulkley con- 
 ceived a violent passion for another lady, which soon 
 culminated in criminal intimacy. But so carefully did 
 he conduct his intrigue, that his wife remained in per- 
 fect ignorance of it. It was the study of his life how to 
 rid himself of his faithful and affectionate wife. His 
 passion for his paramour was so strong, that at times, he 
 thought of removing his wife by administering some 
 slow but fatal poison. Corrupt and lost as he v^as to all 
 conjugal affection, he could not persuade himself to com- 
 mit a crime so dreadful, so fraught with danger to him- 
 self. Determined on a separation, he began to prepare 
 [18] 
 
A DIVORCE FIEND. 19 
 
 the way for a divorce. But there was an insuperable 
 difficulty in his way ; his wife was purity and truth it- 
 self ; ignorant of the dark designs of her husband against 
 her, she regarded him with deep affection ; her love 
 and confidence in him were unbounded. It was the love 
 of a high-sou led, devoted wife and mother. 
 
 Bulkeley resorted to many ingenious and diabolical 
 devices to entrap her into such appearances of guilt as 
 would enable him, by the aid of prepared witnesses, to 
 effect his object. He would send men to his house com- 
 missioned by him to seek an opportunity to be alone 
 with her, and then have another of his creatures enter 
 the room, and pretend he had caught them flagrante 
 delicto. 
 
 But so perfect was the shield of her purity, so well 
 balanced her common sense and judgment, that all 
 these devices utterly failed, though deeply and adroitly 
 planned. 
 
 With every failure his determination grew stronger. 
 At last he matured a plot so thoroughly and carefully 
 that he attained his object — a decree of absolute divorce 
 from his wife — on the ground of alleged adultery. 
 
 Mrs. Bulkeley's mother, to whom she was tenderly 
 attached, resided in California. One day the husband 
 informed his wife that he had been thinking about her 
 visiting her mother, and that he had decided to let her 
 go as soon as she could complete her arrangements for the 
 journey. Overjoyed at the prospect of meeting her 
 mother, she warmly thanked him for his thoughtful 
 kindness, and immediately began preparing for her de- 
 parture. In those days the only route to California was 
 
20 LAWYER AND CLIENT. 
 
 by steamer to Aspinwall, across the Isthmus, and then 
 by steamer again to San Francisco. 
 
 In due time all her preparations were complete, and 
 the day for her departure arrived.' Bulkeley expressed 
 great sorrow at the thought of parting with her. Often 
 he would say, "I almost regret that I proposed to have 
 you go, I shall be so lonely in your absence." 
 
 "The time for my return will soon come, you will 
 not look for it more anxiously than I shall. Were it 
 not that I feel as though I must see my dear mother 
 once more I would not go. I shall be with you, Lucius, 
 in spirit, all the time I am absent," she said to him while 
 on the way to the steamer. 
 
 Almost tearfully he accompanied her on board, 
 talked affectionately with her, and tenderly caressed his 
 little boy. When the order was given for all who were 
 not passengers to lea-^e the steamer, he handed her a 
 sealed package, saying, " There, Mary, is a present for 
 your mother, which I thought of yesterday. Be careful 
 of it, for I think it will please her." 
 
 The lady accepted it and in a voice broken with 
 grief, promised to carefully convey the present to her 
 mother. 
 
 After fervently kissing his wife and tenderly embrac- 
 ing his child, Bulkeley left the steamer. It was soon 
 under way, swiftly gliding down the bay. The lady saw 
 the city vanish from her sight, and the thought of her 
 loved husband — of his love, his kindness — of the last 
 parting scene, came crowding to her heart, blinding her 
 eyes with tears. 
 
 The next morning, when well out to sea, she thought 
 of the package. It occurred to her that it was singular 
 
A DIVOECE FIEND. 21 
 
 he should think of a present to her mother so shortly 
 before the time she was to sail, especially that he should 
 wait until they were about to part before giving it to 
 her. The more she reflected upon the matter the more 
 strange it seemed to her ; but then, she thought, he did 
 not, in the midst of the excitement of her leaving and 
 other demands upon his time, think of the present, and 
 it did not occur to him until nearly the time for going 
 on board the steamer. 
 
 At last curiosity to see what present he was sending 
 her mother, led her to open the package. She found 
 nothing that appeared like a present in it, but there 
 was a paper having the appearance of a legal document, 
 the filing on which was as follows : 
 
 " Supreme Court, Lucius E. Bulkeley against Mary 
 a. Bulkeley. Summons and Complaint. Lucius E. 
 Bulkeley, Atty. in person." 
 
 In the package was also a letter from him which 
 read as follows : 
 
 •' New York, October 10th, 1856. 
 " Mrs. Mary E. Bulkeley. 
 " Madame, 
 
 "Your infidelity with Eichard Francis 
 has long been known to me. It has almost broken my 
 heart. Of course, as I am a man of honor — a man of 
 sensitive mind, I cannot submit to this great wrong. 
 I said nothing to you about it, because I knew it was use- 
 less, because your crime had been so many times repeat- 
 ed. You are now informed that I know all and have 
 known all for a long time. You will see by the enclosed 
 papers that I have resorted to the only honorable alterna- 
 
23 LAWYER AND CLIENT. 
 
 tive left for me — an action for a divorce against you. 
 As I liaTC said, I have the most damning proof of your 
 guilt, and in a short time you will no longer be my 
 wife. The court will make such an order touching the 
 care and custody of our child as will be just. 
 " Yours, &c., 
 
 "L. E. BULKBLBY." 
 
 Twice she read over this terrible letter, and then fell 
 fainting to the floor of her state-room, where she re- 
 mained unconscious for along time, how long she could 
 never tell. 
 
 "My God ! My God ! Merciful Father ! What is 
 this ? What am I to do ? Can it be, oh ! can it be ? 
 This is from my husband, whom I love so well, and who 
 I thought loved me so fondly. Oh ! my God ! Can he 
 mean all this ?" 
 
 Then she composed herself and carefully read the 
 document. There, in legal terms, and in the tei'se but 
 painful language of a complaint in an action of adul- 
 tery, she read the detailed allegations of acts of infidelity 
 "committed by her at divers times and places, with one 
 Eichard Francis, and with divers other persons, whose 
 names are now unknown to the plaintiff." The whole 
 concluding with a demand for a judgment or decree 
 of the court that ' ' marriage between the plaintiff, Lucius 
 E. Bulkeley, and the defendant, Mary E. Bulkeley, be 
 dissolved, and set aside, that the plaintifl; have the care 
 and custody of Henry, the child of the said marriage, 
 until a further order of the court," &c., &c. 
 
 Following the complaint was the usual affidavit veri- 
 fying the truth of the matters set out in it, signed by 
 
A DIVOECE FIEND. 23 
 
 him and sworn to before a notary public of the city of 
 New York. 
 
 Well might the unfortunate lady exclaim, "My God! 
 What am I to do ?" 
 
 She was now far at sea, and could not return. It 
 would be many days before she would arrive at Aspin- 
 wall. Could she return from there to New York ? For 
 several days she was almost crushed with sorrow. A 
 pure, unsullied wife she knew herself to be. Did her 
 husband believe she had been unfaithful to him ? It 
 could not be ; and yet, he had sworn that she was. 
 "Who had deceived him? And by what diabolical 
 means was the deception effected ?" were thoughts that 
 agitated her mind. 
 
 To her friends on board the steamer, she communi- 
 cated the course her husband had taken. They, who had 
 known her for years, knew the purity of her life, and 
 her devotion to her husband and child ; and they felt 
 that a damnable plot had been made to blast her for 
 ever. 
 
 Loving, devoted, trusting and unsuspecting as she 
 was, she still possessed a soul and spirit, which would 
 not tamely submit to this great wrong without a deter- 
 mined effort to vindicate herself. 
 
 On her arrival at Aspinwall she informed her friends 
 that she should return to New York and defend the 
 base action brought against her, to the bitter end. But 
 such was the state of her mind, such was her weak 
 physical condition, that her friends did not think it 
 prudent for her to return, and they earnestly remon- 
 strated against her project of returning. They told 
 her, that, long before reaching New York, her husband 
 
24 LAWYER AND CLIENT. 
 
 would secure liis decree of divorce, that she would have 
 ample time to open the judgment, and set it aside. 
 Finally, they induced her to continue her journey to 
 California, recuperate her health, and, as soon as pos- 
 sible, return and assert her rights. 
 
 She remained two months in California and early in 
 January, 1857, returned to New York. Her husband,, in 
 the meantime, had obtained a divorce. 
 
 Immediately after her arrival, with a legal friend, 
 she called on him and demanded an explanation of the 
 papers and the letter he gave her when parting with 
 her. His only reply was, handing her a certified copy 
 of the divorce ; then suddenly seizing her little boy, and 
 carried him away. 
 
 But he was mistaken in the woman with whom he 
 had to deal. She no longer gave way to useless tears 
 and grief. She was determined to unmask the deep 
 perfidy of the perjured wretch she had so fondly loved 
 and honored, as a true wife should love and honor her 
 husband. He did not believe she possessed the spirit, 
 courage and determination to make a fight against him. 
 He sent her word that if she made any attempt to set 
 aside his judgment of divorce, he had witnesses under 
 his control which would make all her efliorts abortive and 
 destroy for ever all the character she had left. Not the 
 least intimidated by these threats, she moved to her 
 attack on him and his divorce without a moment's delay, 
 and with the force and power of an indignant, wronged 
 and gifted woman. 
 
 She employed able counsel who prepared the nec- 
 essary aiSdavit on which to found a motion to set aside 
 the judgment of divorce. The affidavit went further 
 
A DIVORCE FIEND. 25 
 
 than the usual papers in such cases. They exhibited a 
 case of duplicity and fraud, even perjury, on the part 
 of the husband in obtaining it, that would result in his 
 severe punishment by the court. 
 
 These papers were duly served on him. The service 
 was soon followed by proposals for an adjustment of the 
 case, as base and infamous as they were impudent and 
 insulting. 
 
 He proposed if she would submit to what had been 
 done, and raise him five thousand dollars, he would give 
 her the care and custody of her child : or, if she would 
 raise him iifteen hundred dollars, he would obtain from 
 the clerk of the court where the judgment of divorce 
 was entered and docketed, the record of it, and destroy 
 it. He knew that this could not be done ; he knew the 
 only way to destroy that record, was the course the lady 
 had adopted ; but he yet believed he could deceive her, 
 as he had done for years, by his artfully practiced de- 
 ceptions. 
 
 His proposals were indignantly rejected, and, in due 
 time, the motion to set aside the divorce came ou for 
 argument at a special term. 
 
 Bulkeley, with an able lawyer associated with him, 
 appeared in opposition to the motion; Mr. Justice Piatt 
 Potter presided. A more pure, able and accomplished 
 magistrate never sat on the bench of the Supreme 
 Court than he. 
 
 It would hardly seem possible that a man could 
 have the hardihood to contest a motion made under 
 these circumstances, but Lucius E. Bulkeley possessed 
 every requisite for doing this. He fought to sustain 
 his decree, with a courage and confidence that had 
 
26 LAWTEB AND CLIENT. 
 
 something appalling in it. But the moving papers of 
 his wife were damning evidence of his guilt, and miser- 
 able, cruel deceit, which no sophistry, no allegation or 
 argument of his could wipe out. 
 
 When the argument was concluded. Judge Potter, 
 instead of taking the papers and reserving his decision, 
 proceeded to pronounce judgment at once. 
 
 "This motion," he said, "I might decide upon the 
 mere legal questions involved in it. But there are 
 other questions in it that require the consideration of 
 the court. These are the moral questions it presents, 
 and the court cannot, without failing in its duty, pass 
 them by. It must take judicial notice that the plain- 
 tiff is an attorney and counselor of this court, and 
 therefore, one of its officers : that by virtue of the 
 rights and privileges which this position confers upon 
 him, he has committed a gross abuse of the process 
 and authority of the court. 
 
 "He used the privilege which his license to practice 
 confers, in order to accomplish his own private objects 
 and purposes. By a secret and cunningly devised 
 stratagem, he has decoyed a defenseless, and, we be- 
 lieve, a virtuous woman and too trusting wife into a 
 condition of entire helplessness ; and, while so ensnared, 
 has perverted the use of the process of the court to the 
 commission of a most unhallowed fraud upon her rights, 
 and under circumstances of unparalleled heartlessness 
 and cruelty. 
 
 "Nor is the moral aspect of this case relieved by the 
 fact that the victim of this injustice was his wife, to 
 whom, at the solemn altar, he had pledged the holiest 
 
A DIVOECE FIEND. 27 
 
 TOWS to love, cherish and protect, and that she is the 
 mother of his child. 
 
 "It is sufficient for the court to know that the act, 
 which he calls the service of a summons and complaint, 
 and upon which he bases his decree, was, in no sense, a 
 legal service, but was a fraud imposed by him, not only 
 upon the defendant, but upon the court, and deliber- 
 ately entered x^pon its solemn records. 
 
 " If this pretended service was made in the manner 
 detailed in the affidavits, his clerk, by whom it was 
 effected, in swearing to due service, was guilty of most 
 deliberate falsehood, if not legal perjury ; and the 
 plaintiff, who doubtless planned the scheme, and who, 
 knowing its iniquity, availed himself of its uses, is re- 
 sponsible to the charge of moral, if not legal suborna- 
 tion of perjury. 
 
 "To tolerate, for one moment, an act so flagrant and 
 wicked, to be ccftisummated by one over whom the court 
 can exercise its control, to pass it unrebuked, does not 
 comport with the idea of a pure and honest administra- 
 tion of justice. Such a reproach, while in the exercise 
 of the power with which I have been invested, I shall 
 not suffer at my hands. 
 
 "The affidavit of the service of the summons and 
 complaint was made in the city and county of New 
 York. To the grand jury of that county I commit the 
 consideration of this paper. The affidavit of the plain- 
 tiff by which he obtained the order of reference, in 
 which he coolly states, 'that no copy of an answer to 
 the complaint in this action has been received, nor has 
 the defendant entered any appearance in the action, 
 nor has she, or anyone in her behalf, demanded a copy 
 
28 LAWYEE AND CLIENT. 
 
 of the complaint, and deponent was present and saw 
 the summons herein served on the defendant ; was 
 taken before the clerk of Montgomery County, to whose 
 grand jury I recommend the proper attention. 
 
 " To the general term of the Supreme Court, in whose 
 immediate district this plaintiff, this attorney and 
 counselor, conducts his chief practice, I call attention 
 to this officer of the court. 
 
 "The service of this summons, the judgment of di- 
 vorce obtained upon it and all sabsequent proceedings 
 are set aside with costs." 
 
 Thus ended this famous judgment of divorce. Why 
 the court did not promptly disbar Bulkeley is strange 
 indeed ; why he was not indicted for perjury or subor- 
 nation of perjury is stranger still. In these days the 
 Bar Association would take the matter in hand and 
 severely punish him for the disgrace he brought upon 
 the profession. 
 
WILLIAM H. SEWARD AT THE BAE. 
 
 Algernon Sidney, Seward and the Higher Law. — Trial of 
 Wyatt.— Dramatic Scene in the Court Room. — The State 
 Prison Whipping-post.- — John Van Buren. — Seward's Grave. 
 — The Negro Freeman. 
 
 Though Mr. Seward, at a comparatively early age, 
 surrendered his cliosen jsrofession for the more ambi- 
 tious career of the politician, he attained a distinguished 
 position at the bar of the State, contending with lawyers 
 whose learning, ability and varied professional accom- 
 plishments rendered them illustrious examples of foren- 
 sic excellence". 
 
 He first appeared in the Court for the Correction of 
 Errors, in the leading case of Wakeman v. Grover, a 
 case that everywhere attracted the attention of business 
 men, particularly merchants. After a long, tedious and 
 close legal contest, Seward was defeated, but it was one 
 of those defeats in which the laurels of the vanquished 
 are as green and lasting as those won by the victor. 
 This case, as reported, is still regarded important, for 
 in it the law of the State governing assignmeiits intrust 
 for the benefit of creditors is in a measure settled. 
 
 As a lawyer, Mr. Seward possessed a minute, compre-' 
 hensive, rapid observation, a memory at once retentive 
 and ready, a mind capable of great exertion, an admira- 
 ble control over the momentum of his feelings in times'i 
 of the most intense excitement. He exhibited the force, 
 
 [39J 
 
30 LAWYER AND CLIENT. 
 
 extent and intensity of bis thought, in terse, logical 
 language. At the bar and in the senate be frequently- 
 produced effect by the remoteness and novelty of his 
 combinations, the force of contrasts, and the striking 
 manner in which the most opposite and unpromising 
 materials were harmoniously blended together, "not by 
 laying his hands on all the fine things he could think 
 of, but by bringing together those things he knew would 
 blaze into light by being brought into collision." Thought 
 and deliberation presided over all his mental efforts, 
 and he gave as the result a cogency of reasoning, a 
 depth of research, a clearness of elaboration, that ren- 
 dered them powerful and effective. He was not, however, 
 distinguished for grace of oratory. His pliraseology 
 was sometimes too stately and his cadence too measured. 
 His voice was low and at times husky, wanting that 
 musical intonation and varied modulation that rendered 
 the oratory of Clay, Webster, John Van Buren, Samuel 
 A. Tallcott and Ogden Hoffman so pleasing. 
 
 During the later years of Mr. Seward's practice he 
 indulged in the habit of taking snuff to excess. It is 
 said this affected his voice to such an extent that he 
 threw his snuff-box away, but he could not quite over- 
 come his love for Macoaboy. Often when engaged in the 
 trial of a case, he had access to the snuff-box of Dr. 
 Peres, the crier of the court in Cayuga county. The 
 doctor was the very personification of politeness ; his 
 admiration for Seward was unbounded, and the manner 
 in which he presented his snuff-box to his friend afford- 
 ed great amusement to the bar. Peres was a close 
 observer, and knew exactly when a turn in a case on 
 trial rendered the snuff-box necessary, and it was im- 
 
WILLIAM H, SEWAED AT THE BAR. 31 
 
 mediately tendered- in a manner that plainly proved 
 that it is more blessed to give than to receive. "Mr. 
 Seward, "the doctor would say, "Mr. Seward is a great' 
 man, he takes snuff with the air of a prince, and he would 
 have been beat in many a law-suit if I hadn't strength- 
 ened him with a pinch of snufE at the right time. Snuff, 
 sir, is a great thing, and it's a great thing to know just 
 the time to ta"ke it." 
 
 Notwithstanding the defects in Mr. Seward's oratory, 
 he was an able reasoner and a skillful advocate. His 
 arguments always commanded attention by their force, 
 celerity, perspicuity of detail and plenitude of legal 
 knowledge. It was impossible to follow him through 
 any of his legal or parliamentary speeches without being 
 delighted and improved ; yet, without close attention, 
 he was liable to be misunderstood. Judge Oowen once 
 said, "William H. Seward is one of the most effective 
 reasoners at the bar. He always pleases by the correct 
 manner in which he demonstrates his legal problems ; 
 but he is sometimes obscure from the intellectual effort 
 required to follow him." 
 
 There was a calm dignity in Mr. Seward's manner 
 when speaking that gave effect to his language, and 
 when occasion required, as we shall see hereafter, he 
 could assume a manner that was imposing, if not maj- 
 estic. He used the English language in all its force 
 and in all its purity. A phonographer might have pub- 
 lished his language as it fell from his lips, so finely 
 turned were his periods, so well chosen were his words. 
 He possessed much imagination, but bis eloquence did 
 not rest on his imagination. It is said he studied the 
 Bible more than any other book, and he always admired ' 
 
33 LAWYER AND CLIENT. 
 
 its exquisite Saxon English, its lofty and beautiful imag- 
 ery, so opulent in thought, so excellent in sentiment, so 
 replete with elegant antithesis. 
 
 He united habits of abstraction with every-day prac- 
 tice, and he considered things in general or in detail as 
 i occasion required. In this he differed from those who 
 possess a knowledge of general principles — a talent for 
 general reasoning, united with great fluency of speech, 
 and who to the crowd, seemed to possess abilities suita- 
 ble for any exalted position of life, while wholly inca- 
 pacitated for close, logical, or minute attention to 
 detail. 
 
 With his pen more than his lips, Seward was a dis- 
 penser of eloquence. As a writer, he had few superiors. 
 His great merit in this sphere consisted not so much in 
 any special suggestion of his philosophy — in any nicely 
 defined theory of his own, as in the accuracy, dignity, 
 and profundity with which all that was useless and am- 
 biguous was discarded, the great delicacy with which 
 all that was Taluable was elucidated, methodized and 
 enforced. There was, occasionally, a startling boldness 
 and earnestness in his language and positions that had 
 an effect which few can produce, in giving impetus and 
 embodiment to public opinion. The superlative merit 
 of his state papers, written while governor of his state, 
 first gave him prominence before the public. Whatever 
 tended to the interest of the State of New York as viewed 
 from his partizan standpoint; whatever tended to pro- 
 mote the interest of the old whig party, found eloquent 
 recognition from his pen. His unchanging fealty to 
 political friends — the manner in which he caught the 
 "tones of the times," and the sagacity with which he 
 
WILLIAM H. SEWAED AT THE BAE. 33 
 
 promoted his own political interest, caused his eDemies 
 to style him a demagogue. If his legal and political 
 productions do not exhibit the high qualities that dis- 
 tinguish those of Kent and Marcy, they show a thorougli- 
 ness in linguistic skill and penetration, an acute power 
 of critical dissection, and more than all, great skill in 
 the consideration of opposite arguments and conflicting 
 authorities. 
 
 He was a thorough classical scholar, and dwelt in 
 the old ethnic world as familiarly as an inhabitant. 
 His knowledge of that world rendered his writings 
 many-tinted, fervid and eloquent. 
 
 When the incomparable writings of Mr. Burke were 
 winning the admiration of all parties in England, it was 
 said by some of his jealous contemporaries, that he 
 adopted the style of Bolingbroke. "How can that 
 be ?" asked a generous and sagacious reviewer, "since 
 Burke is a more profound and brilliant writer than Bol- 
 ingbroke." Though the substance and style of Mr. 
 Seward's productions were sometimes severely criticised, 
 he was never charged with being the servile copyiat of 
 any other writer. He was, as has already been said, an 
 original thinker, and such men seldom adopt the manner 
 and style of others ; their thoughts are too independent to 
 be held in any prescribed limits. The fabric of Mr. 
 Seward's subjects rested "upon massive columns of 
 Tuscan simplicity and strength." 
 
 It is true, that he owed much of his f-ame to the stir- 
 ring events through which the nation passed while he was 
 on the stage of action; still, these events only stretched 
 the line of his endowments as a statesman and.diploma- 
 tist ; for great events cannot create, though they will al-i 
 a 
 
34 LAWYER AOT) CLIENT. 
 
 ways excite ability, and stimulate dormant power into 
 operative existence. 
 
 Seward lived in an age when, as he believed, great 
 evils were struggling for the masteiy and perpetuity. 
 He saw the tremendous issues that were soon to be forced 
 upon the nation, and he has been charged with hasten- 
 ing forward those issues, instead of attempting to avert 
 them, or turn them from the bloody arbitrament of arms. 
 On the other hand, it may with great propriety be said, 
 that he beheld in the threatening aspect of the j)olitical 
 atmosphere an inevitable crisis, and, believing it could 
 not be averted, he forwarned his countrymen of its a])- 
 proach, thus preparing them for what he termed " the 
 irrepressible conflict." 
 
 In Mr. Seward's reference to the higher law, so much 
 applauded, so deeply censured, he reiterated the senti- 
 ment, and nearly the language of that illustrious mar- 
 tyr of civil liberty, Algernon Sidney, in his eloquent 
 and heroic rebuke of the high-handed aggressions ot a 
 despotic king and a subservient parliament. 
 
 "N"o people," said Sidney, "can be obliged to suffer 
 from their king, or othei rulers, what they have no right 
 to inflict. The powers of civil rulers are limited, and 
 beyond those limits their laws are without authority. 
 The powers that be, are not only ordained by God, but 
 they are also defined by Him, and if, in transgressing 
 these limitations, the magistrate, ruler, or the state it- 
 self, invades that liigher law, the mode of redress, in 
 such cases, must be left, in each particular instance, to 
 the determination of the suffering partj', whose right it 
 is to appeal to that higher law." 
 
 In those admirable discourses from which this ex- 
 
WILLIAM H. SEWAED AT THE BAE. 35 
 
 tract is taken, Sidney insists that all governments that 
 do not Touchsafe essential justice to all, are magna latro 
 cinia — wholesale roberies, and that men must, there- 
 fore, observe another rule of obedience, higher than 
 the laws of the land. This doctrine, enforced by the 
 brilliant and powerful genius of Sidney, produced the 
 most profound sensation in England and throughout 
 continental Europe. It rapidly accelerated that tur- 
 bulent spirit of liberty, which for years had been 
 silently, but effectually, undermining the power, and 
 limiting the prerogative of the first Charles, culmin- 
 ating in the great revolution of 1649. Thus it will be 
 seen that William H. Seward and Algernon Sidney, 
 occupied, in their respective ages and nations, similar 
 positions. Before what they deemed to be great na- 
 tional evils, and before great revulsions, they both in- 
 vited an appeal to the " higher law," with an emphatic 
 and startling eloquence — deep and subtle reasoning, , 
 and their ajipeal brought one to the scaffold, both to | 
 immortality. 
 
 But to return to the career of Mr. Seward at the 
 bar. Though he was not what may be called a crim- 
 inal lawyer, it was his fortune to be engaged in many ; 
 great criminal trials. The criminal law practice had 
 attractions for his sympathetic and active mind. It 
 gave ample room for the exercise of his well-disciplined 
 mental energies — his power of collecting, combining 
 and amplifying. It gave scope to his critical knowl- 
 edge of statute law, common law and rules of evidence, 
 and " his deep insight into the springs of human ac- 
 tions." It must not be supposed from what has been 
 said that Mr. Seward was not constituted for a success- 
 
P)6 LAAVYEE AND CLIENT. 
 
 f ul jury lawyer, or tliat liis calm, deep reasoning rendered 
 him strong before courts in banc, while his speeches at 
 nisiprms, like those of the gifted and splendid Tal- 
 fourd, flew over the heads of jurors, perj^lexing instead 
 of enlightening them. On the contrary, when Seward 
 iiddressed a jury lie brought his reason and philosophy 
 to their comi^rchension. He entered the jury-box as 
 one of their number and took np the case from their 
 standpoint, considering it as they would consider it. 
 Again, he was a keen physiognomist, and read in the 
 face of each juror before him his susceptibilities and 
 proclivities, and then found projier words and ideas to 
 reach him. He forged the links in his chain of reason 
 so adroitly and distinctly that they intuitively followed 
 the process until he reached his conclusious. 
 
 Oo one occasion, after he liad finished an exhaustive 
 argument, in a^very important civil case, in which 
 Daniel Cady was his opponent, he said to a friend sit- 
 ting near him in the bar : " I shall have a verdict in 
 this case. I have learned the nature and disposition of 
 every man on the jury, and I have addressed myself to 
 each one of them. Do you see tliat stern and somewhat 
 thoughtful juror at the end of the upper seat in 
 the jury box ? He is an intelligent, old school Presby- 
 terian elder, and will be a controlling spirit with his 
 fellow-jurors. He squares his actions exactly by the 
 stern rules of right and wrong, as taught in the scrip- 
 tures, and believes that a man should perform his con- 
 tract, even if martyrdom followed. When I talked 
 ab )ut the necessity of heavy damages for the breaches 
 of the contract in this case, and the want of any legal 
 excuse for them, he drank in every word I uttered, and 
 
AVILLIAM H. SEWAED AT THE BAH. 37 
 
 he is with me, and I shall succeed." Seward was right, 
 he obtained a very large verdict, but his wily opponent 
 found some error in the case, and the judgment entered 
 upon it was oyerruled. 
 
 Mr. Seward's defense of William Freeman, the mur- 
 derer of the Van Nest family, was one of the most 
 masterly and able in the history of criminal trials. But 
 brilliant and great as was his defense of Freeman, the 
 moral effect of his defense of Henry Wyatt, renders 
 that the crowning effort of his professional life. 
 
 Wyatt was a convict in the state prison at Auburn. 
 He was brought to trial in June, 1846, at a special term 
 of the oyer and terminer,f or boldly and atrociously killing 
 a fellow-prisoner. The negro Freeman was tried at the 
 same term. John Van Buren, then attorney-general 
 of the state, conducted the prosecution for the people. 
 Considering the brilliant and successful manner in 
 Avhich he discharged his duties, it is singular that so 
 little commendation awaited him. His efforts in those 
 cases lose nothing when compared with those of his 
 great opponent. As was said of the eminent Irish ad- 
 vocate, Bushe, after his powerful speech in the Trim- 
 bleston c£ise, "he held, alternately, the passions, the 
 understanding, and the senses, captive — willing cap- 
 tives, to the music of his diction, the might of his 
 reasoning, the enchantment of his exquisite delivery," 
 and in each case he carried the. jury with him, 
 and Freeman and Wyatt were both convicted. The 
 former, it is well known, died pending a new trial, 
 which the supreme court had granted him ; the latter 
 was executed. The success of Van Buren in these 
 cases, after the all-powerful and now historic effort of 
 
38 LAWYEE AND CLIENT. 
 
 Seward to save his clients, were victories seldom won 
 in the contests of the forum. Their dazzling prestige 
 should have shielded him from the effect of his defeat in 
 that Trafalgar of legal battles, the Forrest divorce case. 
 
 In the case of Wyatt, Mr. Seward interposed the 
 plea of " moral insanity," tliat subtle plea which insists 
 "that persons who are the subjects of natural or con- 
 genital derangement, are not morally accountable, be- 
 cause, though they may know an act to be wrong, can- 
 not refrain from doing it, being irresistibly impelled to 
 its commission — that when disease is the propelling, 
 uncontrollable power that urges a man to commit a 
 crime, he is as innocent of intent, or malice, as the 
 weapon with which the deed is committed, bhe mental 
 and moral elements being as guiltless as the material. 
 That he might as well be punished for his inability to 
 distinguish between right and wrong as for his incapac- 
 ity to resist a mental disease that forces the crime upon 
 him, without any choice of right or wrong." This plea, 
 resting on a subtle medical theory, though sustained by 
 some of the most gifted and enlightened men of the age, 
 is unpopular ; but Seward supported it in the case of 
 Wyatt, boldly and powerfully, and if unsuccessful, it 
 resulted, as will be seen, in the banishment of the 
 whipping-post and the lash from the prisons of this and 
 other states, as well as from the navy. 
 
 When Seward was governor of New York he fre- 
 quently, but fearlessly, urged the abolishment of whip- 
 ping as a punitive measure in prisons. On this trial, 
 after many closely contested objections, he was permit- 
 ted to prove that when a prisoner was sentenced to the 
 "cat," as whipping was called, his back was bared 
 
WILLIAM H. SEWAED AT THE BAH. 39 
 
 down to liis loins, that he was then drawn up to a post, 
 until compelled to stand on tiptoe ; his hands tied to 
 rings in the post ; that the cat, a whip composed of 
 several hard lashes made of rawhide was then . a^jplied 
 with such force that large, bloody ridges of quivering, 
 lacerated flesh followed every blow. 
 
 Mr. Seward insisted and proved by abundant medi- 
 cal authority and evidence, that the blows thus struck 
 across and upon the spinal column affect the brain, 
 often producing insanity. He proved that Wyatt had 
 repeatedly been whipped in this manner, and that after 
 each whipping something unusual was discovered in his 
 manner. During the trial, Seward, in order to prove 
 the manner the cat was used in Auburn prison, applied 
 to the court for a writ of suipmna duces tecum, com- 
 manding the keeper of the pi-ison to appear before the 
 court, with the record which the law compelled him to 
 keep, showing what convicts had been whipped, at what 
 time or times, how many lashes, and their effect on the 
 prisoner. The motion for this writ was strenuously 
 and strongly opposed by Mr. Van Buren ; but Seward 
 gained his point. The writ was granted and placed in 
 the hands of the sheriff. 
 
 It was reluctantly and sullenly obeyed by the .prison 
 warden, who appeared in court, took the witness stand, 
 with a large book lying on the table before him. 
 
 "Are you the warden of the Auburn prison ?" asked 
 Mr. Seward. 
 
 "lam, sir." 
 
 "Is there a record kept of the convicts who undergo 
 the punishment of flogging in the prison ?" 
 
 " There is, sir." 
 
4r0 LAWYER AND CLIENT. 
 
 "Where is that record ?" 
 
 " There is the book, sir," said the warden, pointing 
 to the large book tliat lay before him. 
 
 Mr. Seward stepped forward to take it up ; but 
 while in the act, the warden sprang np and snatched 
 the book away, exclaiming, "That book is not designed 
 for your inspection, sir ; it is private, and there is no 
 law that entitles you to examine it, and you shall not." 
 
 Mr. Van Buren arose and attempted to sustain the 
 warden ; but Seward, drawing himself up until his form 
 appeared absolutely gigantic, calmly waving his hand, 
 said: "One moment, Mr. Van Buren; I have the 
 right to speak now, and you have not that right. The 
 commands of a court of justice in this country cannot 
 thus be trifled with. Your honor," he continued, turn- 
 ing to the judges, "in the name of justice, in the name 
 of humanity — in conformity with the statutes and the 
 rules of our laws, I ask that this man be compelled now 
 to give into my hands that record, for the keeping of 
 which he is now guilty of a contempt against this court. 
 Shall I have them, sir ?" 
 
 He remained standing in a position of imposing dig- 
 nity, with his eye fixed upon the presiding judge. 
 
 It is said that Mrs. Siddons, the great English ac- 
 tress, never gained more applause and fame, by any- 
 thing she did in her long and illustrious careei', than 
 by the manner in which she dismissed the guests in the 
 . banquet scene in " Macbeth " when the ghost of Banqiio 
 \ arises. It was remembered as long — was as deeply im- 
 pressive as any of her thrilling tones, and her startling 
 language. There was something akin to this in Mr. 
 Seward's manner when he appealed to the court ; it 
 
WILLIAM n. SEWAED AT THE BAR. 41 
 
 invoked the profoundesfc silence throughout the court- 
 room, a silence as impressive as it was deep. 
 
 " Witness,'' said the judge, '•you will immediately 
 deliver to Mr. Seward the book you liold in your hands. 
 Your refusal will subject you to the pains of imprison- 
 ment." 
 
 For a few moments the warden hesitated, while every 
 eye in the court-house was fixed upon him. Just as the 
 judge was about to order the sheriff to take him into 
 custody, he laid the book on the table, and Avithout 
 further resistance Mr. Seward took it up and turning 
 to one of its pages read as follows : 
 
 "On this day of , 184 — , H. W., a convict, 
 
 was sentenced to thirty lashes on his back, but on re- 
 moving his clothing for that purpose his back was 
 found to be so scarred, cut and ridged by previous 
 whipping, that it was evident the effect of any more 
 lashes could not be discovered, if they were even felt, 
 and therefore, his sentence was changed to the effect 
 that he should receive the lashes on his bare legs in- 
 stead of his back." 
 
 "Here," said Mr. Seward, as he laid the book on 
 the table, "is the evidence of the inhumanity of prison 
 punishment. Within the walls of the prison itself 
 there exists evidence of inhumanity and torture suffi- 
 cient to drive a sane man into dementia, and that evi- 
 dence is now before this court. Great God, what a re- 
 cord ! What thoughts of horror and suffering come 
 with it ! Well may the officers of the prison shrink 
 from giving its shocking details to the public ; and 
 yet they are not to blame — they are only the instru- 
 
42 LAWYER AND CLIENT. 
 
 ments for the execution of a barbarous punishment. 
 * * * * We insist it was punishment like 
 this that drove our client into insanity." 
 
 Mr. Seward's address to the jury in this case was 
 one of his most powerful forensic efforts, remarkable 
 alike for eloquence, practical wisdom, and learning. It 
 compares favorably with Erskine's great defense of 
 Hadfield, under a similar plea, though his client was, 
 as we have seen, convicted. The trial opened the eyes 
 of the public and the legislature to the inhumanity of 
 the whipping post in the prisons of our state, and soon 
 after an act was passed banishing it from all places of 
 punishment. 
 
 At the foot of a gentle declivity, in the beautiful 
 cemetery at Auburn, rest the remains of William H. 
 Seward. A plain, though exceeding rich, classically 
 designed monument marks the place where one of the 
 great statesmen and orators of the republic "sleeps the 
 sleep that knows no waking" — one who, like Henry 
 Clay, saw the presidential chair of the nation within 
 his grasp, and then saw all hopes of reaching it vanish 
 like "the stuff dreams are made of." As Plutarch has 
 well said " 'tis in human life as in a game at tables, 
 where a man may wish for the highest cast ; but if his 
 chances be otherwise he is e'en to play it as well as he 
 can, and to make the best of it." So it was with Clay 
 and Seward. They wished for the highest cast, man- 
 aged well to gain it, but their chances were otherwise. 
 Yet they played their great presidential game well, and, 
 indeed, they made the best of it. 
 
 A tastefully-carved entablature on the monument 
 bears the simple inscription : 
 
WILLIAM H. SEWAED AT THE BAE. 43 
 
 WILLIAM H. SEWAED. 
 
 A little below is inscribed the date of his birth and 
 death. But, as if conscious that his fame is given to 
 history, that will live long after marble has crumbled to 
 atoms, the monument makes no other attempt to per- 
 petuate the fame of Seward. 
 
 By his side, his wife, daughter, and many other 
 relatives are resting ; while scattered about the ceme- 
 tery are the tombs of many of his early friends — many 
 of those with whom he mentally measured himself in 
 his early contests at the bar — many of his political op- 
 ponents — many of those who aided him in his first 
 political adyancement. Here, then, is the last resting- 
 place of William H. Seward ; while in far distant 
 tombs, life's fitful scenes ended, many of the great men 
 with whom he acted or whom he opposed in his con- 
 spicuous career, are reposing, unconscious of all that 
 "made ambition glorious." 
 
 AVhile standing by the grave of Seward the eloquent 
 words of one who had mused among the tombs of 
 Westminster Abbey came to me. "When," said he, "I 
 look upon the tombs of the great, every emotion of 
 envy dies within me ; when I read the epitaphs of the 
 beautiful, every inordinate desire goes out ; when I 
 meet with the grief of the parents upon the tombstones, 
 I conceive the vanity of grieving for those whom we 
 must quickly follow ; when I see kings lying by the 
 side of those who deposed them, when I consider rival 
 wits placed side by side, or the holy men who divided 
 the world with their contests and disputes, I reflect 
 with sorrow and astonishment, on the little compe- 
 
44 LAWTEB AND CLIENT. 
 
 titions, debates, ambitions and difEerences of man- 
 kind." 
 
 Then came thoughts of Mr. Seward as I knew him in 
 my youth's summer. It was he who made the first 
 legal argument to which I ever listened. I remember 
 how often, when a school-boy, I was attracted to the 
 court-house to witness the legal contests in which he so 
 often engaged. I remember many of his earlier popu- 
 lar addresses, orations and speeches — always scholarly, 
 rich and original in thought, and delivered in diction 
 that had the grace at once of spontaneity and art. I 
 remember even to his very pose, his appearance when 
 he welcomed to Auburn John Quincy Adams, " the old 
 man eloquent," in language that fell like a spell on the 
 vast throng of people who listened to him, and which 
 will ever be regarded as one of the richest gems of 
 American literature. I remember him as he stood the 
 defender of William Freeman, surrounded by a scowl- 
 ing and excited populace, his look, his manner, the 
 deep, impressive seriousness of his features, the start- 
 ling emphasis with which he enunciated the first sen- 
 tence in his memorable address to the jury. I remem- 
 ber him as I had seen him in the executive chair of the 
 state, as the senator in congress and as the cabinet 
 minister ; but here was the end of all ; here, indeed, is 
 taught the lesson that 
 
 "The boast of heraldry, the pomp of power, 
 
 And all that beauty, all that wealth e'er gave. 
 Await alike the inevitable hour ; 
 
 The paths of glory lead but to the grave." 
 
 With such thoughts as these I left the grave of 
 
' WILLIAM H. SEWAED AT THE BAE. 45 
 
 Seward and soon found myself in the crowded street, 
 where the busy throng was moving on in the eager pur- 
 suits of life, forgetfixl that earth contains a sepuloher 
 and that "the grave lies beyond." 
 
 Before visiting the cemetery I accepted an invita- 
 tion from a friend to visit Owasco lake. A half hour's 
 ride through a beautiful country brought us to the 
 shores of that splendid sheet of water, now gleaming in 
 the sunlight of a delightful August afternoon. 
 
 This lake is about twelve miles in length and at 
 some points about a mile wide. Taking the road that 
 winds along its eastern shore we soon reached a point 
 that brought us opposite the Van Ness house, which 
 stands on the western shore. 
 
 This house was rendered memorable by the awful 
 tragedy enacted there thirty-one years ago by the negro 
 Freeman. It is a pleasant, comfortable farm-house. 
 There is a quiet, I had almost said a pensive, beauty 
 about the garden and fields, reminding one of the home 
 of Southey and his poetic lake at Derwentwater. Here, 
 in this scene of peace and quiet beauty: 
 
 <' withered murder, with quiet steps 
 
 ****** 
 Toward his design, moved like a ghost." 
 
 And the whole family, the happy occupants of this 
 house, died by the hand of a dark assassin. 
 
 The defense of Freeman, though unsuccessful, was 
 undoubtedly the most brilliant effort of Mr. Seward's 
 professional life. It tended greatly to his future polit- 
 ical advancement ; indeed it made him a senator in 
 
46 LAAVTEE AND CLIENT. 
 
 congress. John Van Buren, then attorney-general of 
 the state, conducted the prosecution of the accused. 
 Though but little has been said or written in com- 
 mendation of the manner in which he tried the case, it 
 is no affectation to say that the trial and conviction of 
 Freeman was the great triumph of his official and pro- 
 fessional career. His address to the jury was one of 
 the ablest ever made in central New York, if not in the 
 State. It was distinguished by profound, industrious 
 research, ingenious arrangement, clearness, precision 
 and force. Some parts of it were indescribably elo- 
 quent and thrilling. He had, it is true, the popular 
 side of the case, but after all, had his effort been ap- 
 plied to the unpopular side it would have ranked among 
 the great forensic speeches in legal history. It is to be 
 regretted that no report of it exists. It would have 
 added greatly to the interest of the reported trial; 
 it would have added greatly to the reputation of John 
 Van Buren. 
 
 Continuing our drive we soon reached the residence 
 of Throop Martin, on the east shore, embowered amid 
 ancient, stately trees and charming shrubbery. This 
 w^as occasionally the home of EnosT. Throop, a statesman 
 and politician of the past — once a judge of the supreme 
 court, lieutenant governor, and subsequently governor 
 of the State of New York. Here, fifty years ago, and 
 later, Martin Van Buren, William L. Marcy, Silas 
 "Wright and other great politicians who laid the super- 
 structure of the Democratic party, were wont to come 
 to originate and mature those plans of political and 
 state policy which rendered that party triumphant for 
 more than a half century. The old mansion, though 
 
WILLIAM H. SEWAKD AT THE BAR. 47 
 
 large, is unpretending. It has no castellated battlements, 
 gables and turrets. Some of its rooms still bear the 
 names of some of the illustrious guests by whom they 
 were once occupied. Thus the visitor is shown the Mar- 
 cy chamber, the Van Buren chamber, Silas Wright's 
 room, De "Witt Clinton's room, etc. 
 
 The view from the Van Buren chamber presents 
 many varieties of charming scenery, while the view from 
 the other rooms is scarcely less beautiful. Through 
 broad, extended avenues is seen the Owasco, while be- 
 yond, in the distance, the hills of Tompkins county ap- 
 pear, forming an enchanting background to the lovely 
 picture. One can easily imagine why Jhe political 
 Nestors — the followers of Justinian, of other days — 
 came to these beautiful places, the realms of Pan, Apol- 
 lo, the flowery-kirtled Naiads, and of Circe. Not far 
 from the old mansion, in the direction of the lake, there 
 is a handsome residence of more modern architecture, 
 built expressly for Mr. Throop. In front of this build- 
 ing there is a circular arbor, formed of beautiful ever- 
 greens, in the center of which stands a large maple, the 
 boughs of which have been so artistically pruned that, 
 like an immense umbrella, it protects the whole area of 
 the arbor from the sun. Here, in summer, Mr. Throop 
 used to take his tea with his friends and guests. 
 
 In the year 1824 Enos T. Throop changed his resi- 
 dence from Auburn to this place, calling it Willow 
 Brook, and it still bears that name. 
 
 In the summer of 1838 Martin Van Buren, then a 
 andidate for governor, with Benjamin P. Butler, 
 Churchill C. Cambreleng and other distinguished demo- 
 crats, visited Willow Brook to induce its proprietor. 
 
48 LAWYER AND CLIENT. 
 
 who had signified his intention to retire from politics, 
 to accept the nomination of lieutenant-governor. With 
 some difficulty they succeeded. At the Herkimer con- 
 vention, held the September following, Martin Van 
 Buren and Mr. Throop were nominated, the former for 
 governor, the latter for lieutenant-governor. Political 
 anti-Masonry was then in the hight of its power, and 
 its partisans entertained strong hopes of carrying the 
 state, but the artful management of the foxy Van Buren 
 and his plans laid at Willow Brook overthrew them, and 
 the ghost of Morgan could no longer be invoked for po- 
 litical effect. 
 
 Hardly was Governor Van Buren seated in the ex- 
 ecutive chair when he received the appointment of sec- 
 retary of state in the cabinet of President Jackson, and 
 he resigned the office of governor, Mr. Throop becoming 
 his successor. 
 
 In the autumn of 1830 Mr. Throop was again called 
 from this pleasant retreat. He was elected governor of 
 the state. During his administration, Willow Brook 
 was often the scene of many a political scheme that more 
 or less afEected the politics of the state and nation. 
 
 One cannot wander through the shades of Willow 
 Brook without in some sense realizing the mutability of 
 all earthly things. Jackson, Wright, Van Buren, Marcy, 
 Throop, and finally, all of the leading spirits that made 
 the old Democratic party invincible, are in their graves, 
 almost forgotten, but they have left the impress of their 
 powerful minds upon the history of the nation — they 
 gave dignity to political contests, investing them with 
 the superiority of intellect. 
 
A LAWSUIT TEIED BY LADIES. 
 
 How they used legal Authorities. — They are brought to Trial 
 for Practicing without a License. — Description of the 
 Trial. —Result of the Trial. — A Magistrate issues a "War- 
 rant Against bis own "Wife, for Stealing. 
 
 Thiety-five years ago there lived in one of the south- 
 ern towns of Livingston county, IST. Y., a man of the 
 name of Stiles — Eowland Stiles, as he delighted to write 
 his name. He began life poor, friendless and illiterate, but 
 possessing those qualities which, with many, are passports 
 to success in life — shrewdness, energy, conceit and im- 
 pudence — and, if the truth must be spoken, hypocrisy ; 
 and, if the occasion required, downright dishonesty. 
 Like Jeremy Diddler, whenever Stiles found himself in 
 a tight place, as he often did, he called on impudence 
 to defend him, and he seldom called in vain. He was 
 a true type of those mighty good sort of men — those 
 paragons of virtue, morality, religion and temperance 
 on the surface, but arrant knaves at heart — that are 
 found in every community. Assisted by the qualities 
 which have been described and the co-operation of his 
 hard-working and really excellent wife, he managed to 
 prosper in the world. Like many who occupy prominent 
 places. Stiles understood the art of "pushing things," 
 by a sort of dexterous effrontery. Besides, he could 
 look very wise and talk glibly and learnedly concerning 
 matters about which he knew just nothing at all. This 
 was of immense advantage to him, especially in poli- 
 3 49 
 
50 LAWTEE Airo CLIENT. 
 
 tics — for EowlandStiles was a politician, and a good one 
 too. He had the partisan vocabulary by heart. He 
 knew Just when the nation trembled on tlie verge of 
 ruin. In a political discussion his prowess was generally 
 acknowledged. Whenever, on such occasions, he saw that 
 his opponent was gaining the advantage he usually termi- 
 nated the contest, turning the victory in his favor by 
 rapid garrulity — a continuous fire of thundering words, 
 like the syllogisms of Megara, which by their terrible 
 and unexpected strokes brought all adversaries to the 
 ground. 
 
 May it not with some propriety be supposed that the 
 jaw-bone of the ass with which Samson slew the Philis- 
 tines is only a figure of speech, which, being literally 
 construed, means the jargon, the jaw of politicians ? 
 Certainly this construction is quite as reasonable as are 
 very many exjDlanations given to texts of Scripture. 
 Leaving the question with the theologians, it may safe- 
 ly be said that this jargon rendered Stiles a Samson in 
 his way, and as he understood the thimble-rigging pro- 
 cedure of the caucus to the letter he was of great advantage 
 to those far-seeing i^atriots and sagacious statesmen who 
 usually manipulate county conventions, and in this way 
 Eowland Stiles advanced his own political interest until, 
 in due time, he was known through the region round 
 about him as Esquire Eowland Stiles, justice of the peace. 
 With honors thus thrust upon him he began to exhibit 
 a consciousness of importance, a superiority in his bear- 
 ing, which proves the truth of the theory insisted upon 
 by certain physiologists, that there exists in man some- 
 thing like a puff-ball, needing only a little prosperity 
 and advancement to distend it to any proportion. 
 
A LAWSUIT TEIED BY LADIES. 61 
 
 In Lis court he presided with severe dignity, in a 
 manner that convinced all who entered it that he was 
 every inch a justice. 
 
 "Mr. Gardyer," said he one day to a noisy, pom- 
 pous, wheezing pettifogger who was trying a cause before 
 him, "Mr. Gardyer, you are too noisy. Unless you 
 make less noise I shall certainly commit you !" 
 
 " If this court presumes to inflict any such outrage 
 upon me, this court will get its infernal long nose 
 pulled," said the pettifogger, and then matters pro- 
 ceeded as usual in the court-room. 
 
 It was curious to hear Esquire Stiles discourse on 
 judges, lawyers, and "law-larning," as he termed legal 
 knowledge. 
 
 "Law," he used to say, "is nothing hut plain com- 
 mon sense, but it is awfully twistified and snarled up 
 by lawyers, and the judges they don't help the matter 
 much, either. What's a judge, I should like to know, 
 but a lawyer, histed on the bench by the lawyers them- 
 selves, so they can have things all their own way ?" 
 
 It is needless to follow Esquire Stiles through all his 
 judicial career. Suffice it to say he continued to flour- 
 ish, increasing in wealth, and, as he believed, in honor, 
 antil he began to look with disdain upon his former 
 friends and associates. He even began to entertain se- 
 rious thoughts of running for member of the assembly. 
 Unfortunately he began to grow oppressive and 
 tyrannical in his own household. Strange enough, his 
 excellent wife became an object of aversion and hatred 
 to him. Mrs. Stiles, as we have already seen, possessed 
 many virtues. All the elements of a good wife were 
 tempered in her kindly and happily. Her mild and 
 
52 LAWYER AND CLIENT. 
 
 bland temper spread itself oTsr the whole woman, and 
 her whole character received a hue from it, just as a soft 
 atmosphere communicates its own tender, tranquil light 
 on every object viewed through it. 
 
 She married Stiles in those happy days when love's 
 young dream was the paramount object of her own life. 
 With her that love was the ruling tenant of her heart, 
 prompting her to every duty, sustaining her in every 
 trial, until her husband's neglect and infidelity wrung 
 her heart with grief. Another woman possessed that 
 love which belonged to her, and the faithful wife — who 
 had stood so bravely by his side in the battle of life, 
 who had contributed so much to his respectability and 
 prosperity — was regarded with hatred, for she stood in 
 the way of the full enjoyment of his illicit love, and he 
 greatly desired to rid himself of her. 
 
 He continued to oppress, abuse and insult her, until 
 fears for her personal safety compelled her to leave him. 
 This was the course he desired her to take, but for the 
 sake of appearances he caused an advertisement to be 
 inserted in the county paper, notifying the public that 
 his wife Mary had left his bed and board without any 
 eaijse or provocation, and that all persons were forbid 
 to trust or harbor her on his account, &c., &c. But as 
 Mrs. Stiles was held in high esteem by all who knew her, 
 as the wrongs she suffered at the hands of her husband 
 created general sympathy, she found protection and a 
 home at the house of a kind lady friend. One day, 
 learning that Stiles had gone to a distant village, she 
 returned to her discarded house and took away her 
 wardrobe and such other articles as she deemed neces- 
 sary for her comfort. 
 
A LAWSUIT TRIED BY LADIES. 53 
 
 "When the great Stiles learned that his wife had 
 taken what he called his property, his. indignation knew 
 DO bounds. His wrath was as fierce as the wrath of 
 Bombastes Furioso, when, hanging up his boots, he ex- 
 claimed: 
 
 '' He who daie tbese boots displace, 
 Must meet Bombastes face to face ! 
 Thus do I challenge the whole universe I " 
 
 For a long time Stiles had anxiously sought some 
 excuse for effectually putting away his wife. He had 
 longed for some circumstance that would throw her into 
 disgrace and destroy her high standing in the neighbor- 
 hood. When his rage subsided he began to meditate on 
 the course most proper for him to pursue, and he came 
 to the conclusion that at length fortune had favored 
 him, giving him occasion to charge his wife with steal- 
 ing. He went further ; he was determined to convict 
 her of the crime, send her to prison, take to his home 
 another woman, and thus attain the great desire of his 
 heart. Having come to this conclusion he soon acted 
 upon it, for Eowland Stiles was a man of action. 
 
 He thought himself fortunate in having knowledge 
 of law. Still more fortunate that he himself was a 
 judicial oflBcer; hence a ten-or to evil-doers. At this 
 time there lived in his town a pug-nosed, roughish, 
 troublesome pettifogger, one of those legal excrescences 
 who hang around justices' courts, stirring up petty liti- 
 gation for their own advantage. 
 
 This fellow was a creature of Stiles', eminently quali- 
 fied to the practice in his court — more than anxious at 
 all times to do his dirty work. To this stick of the law. 
 
64 LAWYER AND CLIENT. 
 
 therefore, the justice now applied for assistance in hia 
 plans against his wife. That respectable person soon 
 prepared a complaint in his own name against Mary 
 Stiles, charging her with larceny in felonously stealing, 
 taking and carrying away certain goods and chattels. 
 Having verified it by his own oath, he gravely demanded 
 a warrant of Esquire Stiles for the arrest of the offend- 
 ing Mary. The process was immediately granted and 
 given to one of the Nabem family of the town, with 
 directions to arrest the culprit immediately and bring 
 ber into court without a moment's delay. 
 
 Armed with the warrant the officer proceeded to 
 arrest Mrs. Stiles. With grim satisfaction he con- 
 ducted the poor woman, terror-stricken and half faint- 
 ing, before the frowning Stiles. As she stood trembling 
 before him he glared at her with a ferocious satisfac- 
 tion, which he vainly attempted to conceal by an ill- 
 dissembled sorrow for the crime which "the prisoner," 
 as he termed her, had committed. In his action and 
 manner he plainly said, "Now, madam, my hour of 
 triumph has come. Your fate is in my hands, and I 
 will effectually dispose of you now. You will trouble 
 me no longer." 
 
 At that moment did no recollection of his young 
 manhood — of the days when he wooed and won her, and 
 took her from the home of her childhood, in the joy of 
 youthful affection — come throbbing up from the past, 
 pouring the incense of truth, fidelity and honor over 
 him? Did not that pale, suffering face, that shrinking 
 form, which through so many long years had nestled 
 so lovingly and confidingly by his side, hung over him 
 in so many hours of sickness, make no successful appeal 
 
A LAWSUIT TRIED BY LADIES. 55 
 
 to his sympathy? Alas! no; for he was changed in all 
 things; blinded by illicit love and the worst passions of 
 his nature, which had now taken possession of him. 
 What had the poor woman to expect from the man be- 
 fore whom she was arraigned as a criminal? Ignorant 
 of law, believing her fate entirely in his hands, visions of 
 dungeons, dark and damp, floated before her eyes. 
 
 As for Stiles, such was his anxiety to destroy his 
 wife, he did not pause to consider that in the eyes of 
 the law husband and wife are one and the same — that 
 an authority still higher pronounces them one flesh and 
 one bone. Hence he did not consider that in arresting 
 her ho himself, or by far the better part of himself, was 
 also arrested, and he prepared to proceed against her 
 with relentless precision. 
 
 When all was ready the case was called, and Stiles 
 in a pompous manner stated to the prisoner the nature 
 of the crime with which she was charged, and concluded 
 by saying: 
 
 "Now, prisoner at the bar, what have you to say? 
 Are you guilty or not guilty?" 
 
 A kind neighbor and friend of the poor woman now 
 stepped forward, saying: 
 
 " She pleads not guilty, sir." 
 
 "Begone, sir! how dare you meddle with matters 
 of justice? Your cattle and horses and things need 
 your attention. I should like to know what you have 
 to say about this matter?" said the justice, looking 
 fiercely at his pragmatic neighbor. 
 
 " I say this, sir; I am not a lawyer, and don't pre- 
 tend to have any knowledge whatever about law, but 
 I've got an idea what justice is, and I am going to see 
 
56 LAWYEK AND CLIENT. 
 
 that this woman is protected, and you had better look 
 out how far you go with this matter. I demand that 
 she has time to prejDare for the examination," said the 
 man. 
 
 Stiles plainly saw by the manner of this man that it 
 would not do to push things to extremities that day. 
 After a short consultation with the pettifogger, who ap- 
 peared for the People, he said, 'with much condescen- 
 sion in his manner: " The prisoner can have until to- 
 morrow at ten o'clock to prepare for her defense. Con- 
 stable, see that she is safely kept, and have her promptly 
 at the opening of court, as we cannot wait, our time is 
 too precious." Then, with a hypocritical sigh, he con- 
 tinued: "How bad I do feel about this matter; oh, how 
 I hope she can prove her innocence; what a tremendous 
 responsibility rests upon me ; but I must do my duty 
 though the heavens fall!" 
 
 The next morning at the ajypointed hour, the con- 
 stable, with his prisoner " in charge, appeared before the 
 tribunal which was to decide her fate. The justice was 
 in his chair, jjen in hand, ready to take the evidence; 
 the pettifogger was also present, swelling with impor- 
 tance as the prosecuting officer of the occasion. But to 
 the utter astonishment of Stiles and his attorney, all the 
 ladies in the neighborhood, at least thirty in number, 
 , accompanied his wife, each one of them with a satchel 
 'jor basket by her side. When all Avere seated the justice, 
 rapping loudly on the table before him, announced 
 that the court was ready to proceed. "Are the People 
 ready, Mr. Fangie ? " he asked of the pettifogger. 
 
 '/Yes, your honor, I believe I am, though I was 
 obliged to sit up all night to prepare," said he. 
 
A LAWSUIT TEIED BY LADIES. 57 
 
 "I shall now proceed to call up the case," said the 
 justice. "• The People of the State of New York !" he 
 cried in a loud voice. 
 
 "Here !" answered the pettifogger. 
 
 "Mary Stiles, the f)i'isoner at the bar !" he again 
 cried in a still higher key. 
 
 " Here ! here !" screamed half a dozen ladies at once. 
 
 " Silence ! Prisoner, have you counsel ?" asked the 
 justice. 
 
 " Yes, we are all of us counsel for the prisoner ; she's 
 got pleaty of counsel," answered ten or fifteen women 
 in one breath. 
 
 " Silence, I say ! The court has no objection to your 
 remaining here and witnessing the proceedings of the 
 trial, for it's an important one. Once more I ask, has 
 the prisoner counsel ?" said Stiles. 
 
 " Yes ! yes ! yes ! we are all her counsel, all lawyers, 
 and we've come to try the case for her," responded the 
 ladies. 
 
 "In the name of the People of the State of New 
 York, I command silence !" thundered the justice. 
 
 "Go on with the trial, Mr. Justice; we've come to 
 defend the prisoner," said one of the ladies. 
 
 " Don't you know that you can't be i-eceived as 
 counsel in this or any other court? The Constitution 
 don't permit it; your sex is against you," said the 
 justice. 
 
 "No, sir, it's in our favor ; we are for our own sex 
 against your cruelty, Old Blue-beard, and Constitution 
 or no Constitution, we are going to defend this woman 
 here," responded the lady at whose house Mrs. Stilea 
 was staying. 
 
58 LAWYER AND CLIENT. 
 
 '■' This court declines to laear you ! It scorns you ! 
 It exhorts you to good behavior! If yon don't behave, it 
 will clear the room of you ! You are worse than a flock 
 of wild geese! You will be committed to jail/' waving 
 his hand with dignity. 
 
 "Jail or no jail, we shall try this cause according 
 to law and justice ; we've got the law with us, so go 
 ahead," was all the reply he got to his terrible threat. 
 
 " Shame on you — you bedlamites ! You whey-faced 
 meddlers ! You witches ! Constable, arrest every one 
 of these women the moment they presume to interrupt 
 the court again," said the magistrate. " Mary Stiles, 
 stand up !" he continued. He was obeyed. "You are 
 charged in this warrant with stealing a quantity of 
 cloth." A volley of white beans poured upon him from 
 every part of the room, filling his mouth and ears and 
 preventing him from finishing the sentence. 
 
 " Of — ofi — constable ! constable !" he roared, as soon 
 as he had ejected the beans from his mouth. "Arrest 
 these Jezebels ! Arrest them, I say, and take them out 
 of the room." 
 
 " See here, Mr. Constable," said one of the ladies, 
 " if you know when you are well off and safe you will 
 keep still. You have no right to interrupt counsel 
 when they are trying a cause." 
 
 That respectable functionary took the hint, and for 
 once in his life declined to obey the mandates of the 
 great Rowland Stiles. After wiping his smarting face, 
 with his handkerchief, the justice once more cautioned 
 the ladies against interrupting the court ; then, address- 
 ing himself to the prisoner, said : 
 
 " Mary Stiles, you are charged with having on the 35th 
 
A LAAVSriT TKIED BY LADIES. 59 
 
 day of Septem — " another shower of beans discharged 
 full in his face with stunning effect again interrupted 
 liini. Springing up and gasping for breath, he cried, 
 " Off — of — ofB — constable ! arrest these ha — ha — hags, 
 these — these — arrest them, I say. No ! No ! read the 
 riot act! read it quick! disperse them! or damn 'eiin, 
 they'll confound this court!" screamed the justice. 
 
 But the constable, who was closely ensconced under 
 the table with the attorney for the People, did not re- 
 gard this command ; and so Stiles adjusted himself as 
 best he could, and once more sternly commanded the 
 ladies to keep still or suffer imprisonment, and pro- 
 ceeded to swear the first witness ; but before he raised 
 the Bible a foot from the table another tremendous vol- 
 ley of beans nearly knocked him out of his chair. And 
 now the ladies, whose baskets and satchels contained 
 plenty of ammunition, like well-drilled veterans in a 
 general engagement, loaded and fired at will. Volley 
 followed volley in quick succession, then came the 
 steady roll of continued discharges. From right and 
 left, from every part of the room, the swiftly-hurled 
 missiles poured upon the head of Stiles ; so hot and 
 rapid was the fire he could hardly catch his breath. 
 Grasping a law book, he held that before his face to 
 shield him from the impending beans. But the book 
 was snatched from him, and they seemed to fly with re- 
 doubled fury, causing the justice to jump and caper 
 about like a negro in a clog dance, exclaiming : 
 
 "I— I — I — com — com — I command the peace, of — 
 offi — oflBcer. Gentlemen! good citizens! help keep the 
 peace! help clear the room of these she dev — " A hand- 
 ful of feathers crammed into his mouth effectually pre- 
 
»/U LAWYEK AND CLIENT. 
 
 vented his finishing the word, and his voice subsided 
 into an internal muttering of strange sounds, which 
 rolled and grumbled, sptitterod and rattled in his throat, 
 like the moans and shrieks of a clicked hound. 
 
 The attack bad now become too fierce for him to 
 withstand any longer, and half suffocated with feathers, 
 and smarting from the efEects of the beans, he rushed 
 for the door, followed by the constable and pettifogger, 
 leaving the ladies in quiet possession of the court-room. 
 One of them, assuming the vacant chair of the justice, 
 and calling the assembly to order, said : 
 
 "Ladies, we're now mistresses of the situation— in 
 full jDossession of the so-called court of justice ; let us 
 now make it so in fact. Let us see whether any person 
 ajDpears against the prisoner at the bar." Then raising 
 her voice, she called out : " The Peopile of the State of 
 New York ! No one answers, and therefore, according 
 to law, the complaint in this case is abandoned. There- 
 fore, Mary Stiles, prisoner at the bar, by virtue of the 
 statute in such case made and provided, I discharge you 
 from arrest, and declare you free to go and come as you 
 please." 
 
 Judgment having been thus rendered in favor of the 
 defendant, she left the room, surrounded by her nu- 
 merous counsel. So strong was the vox populi in her 
 favor that Stiles never arrested her again. But as he 
 possessed a will of iron, he determined to punish the 
 ladies who had thus rescued his victim from his hands, 
 and appearing before the grand jury of Livingston 
 county he procured an indictment against them for riot, 
 assault and battery, and for disturbing the proceedings 
 
A LAWSUIT TRIED BT LADIES. 61 
 
 of a court of justice. Hon. George Hastings was then 
 district attorney. 
 
 As tlie offense with which the ladies were charged 
 was very serious, and would, if sustained, subject them 
 to a severe punishment, they prepared for a vigorous 
 defense, and John B. Skinner was retained to defend 
 them. Mr. Skinner was then in the zenith of his bril- 
 liant professional career. At this period he was, per- 
 haps, the most successful and impressive legal orator in 
 western New York. He had at his command the elo- 
 quence of imagination, fancy and high-wrought feel- 
 ings, but brought within the range of a well-disciplined 
 and well-organized mind. His learning, candor and 
 integrity gave him the confidence of courts and jurors 
 to such an extent that opposing counsel often com- 
 plained that it was his influence, not the justice of his 
 cases, that rendered him so successful. It is certain that 
 the ladies could have committed their defense to no 
 abler man. In due time they were brought to trial, at 
 a term of the Livingston Oyer and Terminer, before the 
 late Judge Monell, and the judges of the Livingston 
 Common Pleas. The singularity of the offense, the 
 number and sex of the prisoners, gave great interest to 
 the trial. To insure the conviction of the accused, 
 Stiles at his own expense retained able counsel to assist 
 the district attorney. Stiles was, of course, the principal 
 witness for the people. In his direct evidence he made 
 a strong case against the ladies. But Skinner's cross- 
 examination was really a legal thumb-screw, a species 
 of torture that wrung from the reluctant Stiles a full 
 confession of his cruel and oppressive treatment towards 
 his wife and his infidelity to her. It compelled him to 
 
62 LAWTEE AND CLIENT. 
 
 acknowledge that he had no jusb cause of comphiint 
 against her ; that to escape his brutality she had been 
 compelled to leave his house and seek protection from 
 the neighbors, and finally, as a crowning act of his cru- 
 elty to her, he had, as a magistrate, issued a warrant 
 against her, causing her to be dragged before him as a 
 common criminal, with the intention of imj)risoning 
 her in the county jail, and he sat in the witness-box a 
 shivering, cowering, despicable being, condemned by 
 the words of his own mouth. 
 
 Other evidence was produced, and the counsel for 
 the prosecution made an able effort to convict the ladies, 
 and they presented the case to the jury with great abil- 
 ity. Mr. Skinner's address to the jurors, though very 
 brief, was a model and successful argument. He sought 
 no felicity of phraseology, but came directly to the points 
 in the case. With that pungent sarcasm of which he 
 was a perfect master, he lashed Stiles until he was an 
 object of scorn to all in the court-room. He contended 
 that, as a matter of law, the justice acting in his official 
 capacity had no jurisdiction over his wife, and hence 
 all proceedings under his warrant were null and void, 
 and therefore tire ladies were justifiable in rescuing Mrs. 
 Stiles from her illegal arrest ; that in so doing they used 
 no more force than the necessity of the case required, 
 and that there was no evidence in the case tending to 
 show that the ladies had assembled for the purpose of 
 any riotous proceedings. After an able, fair and clear 
 chai'ge from the judge, the jury retired, and soon re- 
 turned into court with a verdict of not guilty. The 
 announcement of this verdict produced a burst of ap- 
 
A LAWSUIT TEIED BY LADIES. 63 
 
 plause, and the ladies left the court-house with the con- 
 gratulations of their friends. 
 
 The attempt made by Stiles to try his wife for steal- 
 ing was his last official act. Like Cardinal Wolsey, he 
 fell in the midst of his full-blown greatness. Like 
 Wolsey he might have exclaimed, "In that woman I 
 have lost all my glories. " 
 
 Soon after the trial of her friends Mrs. Stiles com- 
 menced an action for divorce against her husband, in 
 which she was successful, taking from him, by a decree 
 of the court, a large portion of his property for her 
 maintenance. Converting the remainder of his prop- 
 erty into money. Stiles, with his paramour, left the 
 country, vanishing away like guilty phantoms. In what 
 part of the world they hid themselves has never been 
 known. Time has swept away most of the actors in the 
 scenes described in these pages, but there are those still 
 living in Springwater, !N". Y., who have a vivid memory 
 of the famous trial of Mrs. Stiles and her defenders. 
 
ORDEAL OF BLOOD. 
 
 A Dark Superstition invoked to Detect a Murderer. — What It 
 Declared. — Famous Trial of Medad McKay for the Murder 
 of his wife. — Brilliant Array of Counsel. — Hair-breadth Es- 
 cape. — The Missing Seal. — Effect of Outward Circum- 
 stances on Juries. 
 
 It is seldom that the history of crime records more 
 singular and startling circumstances than were revealed 
 in the trial of Medad McKay. In many respects he was 
 a singular man, destined to pass through strange ordeals 
 and trials. Tliere were times when he seemed under 
 the control of mysterious agencies, times when he felt a 
 consciousness that something not of earth was behind 
 him, times when " coming events cast their shadows 
 before," and he would be moved by impressions as 
 gloomy as those embodied by Coleridge in his beautiful 
 but weird verse. 
 
 When McKay was charged with a horrible crime he 
 invoked a superstitious ordeal, full of horror, the result 
 of which cast a dangerous shadow upon him when tried 
 for his life. And yet his fate was not always controlled 
 by dark and malignant spirits. In one awful hour of 
 his life an invisible hand seemed suddenly to reach forth 
 and snaJ;oh him from the grave. The superstitious 
 termed this intervention the work of his guardian 
 spirit; the more enlightened attributed it to the ability, 
 skill and eloquence of the gifted lawyers by whom he 
 was defended. 
 64 
 
OKDEAL OF BLOOD. 65 
 
 Early in the year 1830 Medad McKay removed from 
 the counfcy of Cayuga to Burns, in the county of Alle- 
 gany. He bad enjoyed many advantages for attaining 
 an education, which he did not neglect. Eeading was 
 his favorite pastime, and he loved to plunge into the 
 dark and metaphysical subtleties which the Germans 
 have called daringly forth. But he possessed a desire 
 for knowledge more vague than useful. 
 
 At the time of his removal to Burns he was thirty- 
 five years old. A wife, four children, one or two hired 
 men and a servant constituted his family. Unfortu- 
 nately he lived unhappily with his wife. So deep and 
 bitter was their quarrel that the neighbors frequently 
 interposed to prevent McKay from inflicting personal 
 violence upon her. At length Mrs. McKay was at- 
 tacked by a sudden and strange malady which soon ter- 
 minated fatally. 
 
 Many circumstances connected with her death caused 
 the people in the neighborhood to believe that it resulted 
 from poison administered to her by McKay. So strong 
 was this belief that soon after the funeral of the unfor- 
 tunate woman he was arrested, her body exhumed, the 
 contents of her stomach subjected to a chemical analy- 
 sis, and arsenic detected. At the coroner's inquest, 
 called to view the body and decide upon the cause of 
 the woman's death, an event of thrilling interest oc- 
 curred, which, in the minds of many, confirmed belief 
 in the guilt of the accused and operated against him on 
 his trial. McKay did not deny that his wife died from 
 the effects of poison, but he insisted that he had no com- 
 plicity whatever in the act of administering it to her. 
 She had for years been at variance with one of her sis- 
 
66 LAWYEE AND CLIENT. 
 
 ters who lived near, and McKay accused this woman of 
 the murder of his wife. 
 
 McKay had read of the " Death Touch, or the Ordeal 
 of Blood," a dark, Druidical superstition, so graphically 
 described by Sir Walter Scott in his enchanting story, 
 " The Fair Maiil of Perth." This ordeal originated in 
 the belief that if a person guilty of murder touches the 
 neck of the victim with the index finger of the left 
 hand, blood will flow from the place where the finger 
 rests, in evidence of guilt. 
 
 It was, doubtless, this belief that prompted the con- 
 science-stricken Macbeth, after he had murdered Dun- 
 can, to exclaim: 
 
 "Blood will have blood ! 
 Stones have been known to move and trees to speak: 
 Auguries and understood relations have 
 By magpies, ravens and rooks brought forth 
 The secreted man of blood." 
 
 This ordeal or test McKay proposed should be tried 
 at the inquest by his sister-in-law, alleging that it would 
 decide who was the guilty person; but she declined. 
 He then insisted upon trying it himself. "I insist," 
 he said, "upon being permitted to subject myself to the 
 test of blood, for it will, I hope, convince the public 
 that I am an innocent man, for if I am guilty my 
 wife's blood will follow the touch of my finger." 
 
 The coroner gave his consent, and in the presence of 
 the multitude, amid profound and ominous silence, 
 the suspected man approached the dead body of his 
 wife and placed his finger on her neck. When he with- 
 drew it a dark, bloody spot marked the place where it 
 had rested. There indeed was the " gout of blood 
 which was not there before," the avenging spot "plead- 
 
OEDEAL OF BLOOD. 67 
 
 ing trumpet-tongued agaiust the deep damnation of her 
 taking off." 
 
 McKay had resorted to the test of blood, and it pro- 
 nounced against him in the blood of his victim. In an 
 instant a ghastly pallor overspread his face. Cold per- 
 spiration stood in great drops on his forehead; his 
 heart almost ceased to beat, and, tottering half fainting 
 into a chair, he exclaimed: 
 
 "Oh! oh! there's the blood! there's the blood! 
 the blood! the blood! Oh! my God! my God! there's 
 the blood! but I — I did not do it! I did not do it! I did 
 not! I did not! But oh how shall I escape? for there's 
 the blood!" 
 
 Burying his face in his hands, his frame shook 
 and trembled with emotions that were terrible to be- 
 hold. Any attempt to describe the effect of this scene 
 upon' the spectators would be useless. Had an accusing 
 angel spoken from the skies, or the lips of the dead wo- 
 man suddenly become voluble, the people could not 
 have been more astonished and startled. To the super- 
 stitious this circumstance established the guilt of Mc- 
 Kay by proof " as strong as holy writ." But to the 
 more enlightened, to the physicians present, there was a 
 natural cause for this apparently supernatural occur- 
 rence. 
 
 The corpse had been in the grave two days at least. 
 The part touched by McKay was swollen and tinged 
 with a miliary eruption which rendered the skin soft 
 and yielding to the touch. The man undoubtedly 
 pressed his finger upon the part with some force, caus- 
 ing it to slip from the side of the neck, removing the 
 skin, thus revealing a bloody matter that had gathered 
 
68 LAWYEK AND CLIENT. 
 
 under it. This was the explanatiou reason gave, but it 
 was useless to urge it in explanation to the excited 
 people present. They had heard the prisoner appeal to 
 the awful test, had witnessed the bloody proof of his 
 guilt, and the Touch of Death — the Ordeal of Blood-^ 
 ran like wildfire through the country. 
 
 Soon after this event McKay was indicted for mur- 
 der, and in June, 1830, his trial took place at Angelica, 
 New York, before the Court of Oyer and Terminer. 
 Ambrose Spencer, then chief justice of the State, ipve- 
 sided. The career of Judge Spencer as a judge places 
 his name among the great judicial officers of the nation. 
 On the bench lie was grave, dignified, impartial, though 
 often almost imperious. He held counsel to a close 
 consideration of the case under argument, permitted 
 few of those light efforts that strive after efEect alone; 
 none of those excursions which produce sensation by a 
 smart antithesis or theatrical iiourish. 
 
 The prosecution was conducted by John A. Collier, 
 a name that has added luster to the legal history of the 
 State of New York. 
 
 Vincent Matthews, of Rochester, N. Y., and John 
 W. Hurlbert, appeared for McKay. Both of these law- 
 yers stood at the head of the profession. The latter, 
 Mr. Hurlbert, attained a renown so high that in legal 
 history he is styled the Curran of America. The great 
 judge who presided at the trial; the eminent coi^nsel 
 who appeared for the respective parties; the strange 
 circumstances connected with the case, gave the trial of 
 McKay a deep interest. 
 
 It was long and tedious, disclosing one of the most 
 wonderful escapes from the gallows on record. 
 
OEDEAL OF BLOOD. 69 
 
 The whole science of toxicology pertaining to arse- 
 nious acid, or white arsenic, was examined. As McKay 
 was charged with killing his wife by this poison, all the 
 phenomena attending its operation on the human sys- 
 tem were inquired into, leading to mUny interesting 
 medico-legal questions. Learned and experienced pro- 
 fessors of chemistry skilled in nice analytic tests were 
 examined and cross-examined. 
 
 The suspicious conduct of McKay before and during 
 the illness of his wife was proved. There was also 
 proof introduced by the prosecution tending to show 
 that the accused purchased arsenic of a druggist in a 
 neighboring village a short time previous to the illness 
 of his wife. The prosecution, however, could obtain 
 no further proof on this point than the fact that the 
 accused had, a day or two previous, purchased some 
 medicine of this druggist. Neither party could prove 
 the nature of the medicine, as the druggist could not, 
 or would not say whether there was or was not arsenic 
 sold to McKay on that occasion. Some strange and 
 threatening language concerning his wife was proved to 
 have been uttered by the prisoner. For motive 
 prompting him to the act, the unhappy relations be- 
 tween him and his wife were proved. The people pro- 
 posed to give in evidence the conduct of the prisoner, 
 and the test of blood which occurred at the coroner's 
 inquest, but this was ruled out by Judge Spencer. 
 
 Hurlbert and Matthews exerted all their powers in 
 the defense of their client. The blood spot on the neck 
 of the deceased following the touch of McKay had pre- 
 judiced the community strongly against him. This, 
 joined with the other strong circumstantial evidence 
 
70 LAWYER AND CLIENT. 
 
 against him, rendered the defense apparently desper- 
 ate. 
 
 Hnrlbert's cross-examination of the professional wit- 
 nesses was conducted with so much ability, was bal- 
 anced and pointed with so much medical and chemical 
 knowledge, that to those unacquainted with him, the 
 lawyer seemed at times to be lost in the doctor of medi- 
 cine or the professional chemist. 
 
 His address to the jury was one of the ablest efforts 
 of his long and distinguished career at the bar. Al- 
 ways laborious in preparation of his materials, luminous 
 and forcible in their arrangement and use, strong in 
 argument, deep in thought, critical in the analysis of 
 the evidence, he was peculiarly happy in the application 
 of all these qualifications to the defense of his client. 
 
 The argument of Mr. Collier was equally powerful. 
 As a legal orator he possessed that mysterious power 
 sometimes called magnetism. An attractiye delivery 
 secured him the attention of his hearers. He seldom 
 indulged in superfluous flights of eloquence ; but if 
 there was anything in the range of legal literature he 
 desired to use in his argument, he always had it in its 
 appropriate place, using it with much of the elegante 
 of Ohoate and the logic of Webster. 
 
 Collier dwelt with startling emphasis on the enormity 
 of tlie offense, on the ease and secrecy with which it 
 can be committed, and wove into his argument with 
 great effect the history of the Italian poisoners, and the 
 fatal but mysterious manner in which they murdered 
 their victim by subtle poison. He contended that very 
 many of the sudden deaths that occur are the result of 
 some potent but subtle poison. He pictured with thrill- 
 
OEDEAL OF BLOOD. 71 
 
 ing effect the anguish of the dying woman, tortured 
 with internal fires, burning with unquenchable thirst, 
 and racked with fearful convulsions, the husband of 
 her youth — her natural protector — watching with indif- 
 ference her dreadful suffering, coolly awaiting the time 
 when the poison he had administered to her should do 
 its fatal work. 
 
 In commenting upon the test of blood he did not 
 seize the superstitious views of that circumstance. He 
 contended that McKay himself did not believe in the 
 test, but proposed it for the purpose of inducing the 
 people to think him innocent since he dared to invoke 
 it so boldly. 
 
 " Grentlemen," continued Mr. Collier, "it was not 
 the blood of his victim that followed his murderous 
 hand, revealing his guilt on the way. The sight of the 
 corpse of his murdered wife touched his conscience. It 
 was conscience, that sure and awful accuser pursuing 
 him with sleepless vigilance, that caused the cry of 
 agony and remorse, the pallor and the tremor. His 
 guilty secret was disturbed, and like a raging devil 
 within him, it compelled him by his actions and words 
 to confess his guilt even while attempting to deny it." 
 
 After an able and lucid charge from the judge the 
 case was given to the jurors, who, after several hours' 
 absence, returned into court with a verdict of "guilty." 
 
 As the words of the verdict fell from the lips of the 
 foreman, McKay with a cry of agony fell fainting to 
 the floor. He was with some difficulty restored to 
 consciousness, and remanded to jail until he gained 
 sufficient strength and fortitude to undergo the awful 
 sentence. 
 
72 LAWYER AND CLIENT. 
 
 He was brought into court the next morning. 
 Collected and firm he took his seat in the prisoner's 
 box ; all evidence of the weakness and terror that so 
 suddenly overcame him on the announcement of the 
 verdict had passed away, but the lines around his 
 mouth — the unmistakable figures in which mental 
 suffering writes itself — were visible to all. But there 
 was no forced and convulsed effort vainly masking the 
 terror and the pang. He had brought himself to 
 submit to his fate with a courageous but despairing 
 heart. 
 
 Mr. Collier moved that the sentence of the court be 
 passed upon the prisoner. 
 
 " Medad McKay," said Chief Justice Spencer, in 
 that voice which once heard was never forgotten, " what 
 have you to say why sentence of death should not now 
 be pronounced upon you ?" 
 
 To this question McKay replied : " I have nothing 
 to say, except I am not guilty. I could say more, but 
 it would do no good." 
 
 During this scene Mr. Hurlbert was seated at a 
 table on which the papers of the district attorney lay in 
 a loose bundle, and his eye accidentally rested on the 
 writ by which, in those days, the jurors were sum- 
 moned. Carelessly taking up the paper he glanced at 
 the filing and laid it on the table again. In this move- 
 ment the writ became partly unfolded, revealing the 
 caption on the inside. Eapidly running his eye over 
 this he discovered that the seal of the court, which the 
 law then required should be affixed to the document, was 
 missing. With nervous energy that attracted the 
 attention of many within the bar, he seized the writ 
 
ORDEAL OF BLOOD. 73 
 
 again. Hastily reading it over, with a strange startling 
 expression on his face, he sprang to his feet just as the 
 judge commenced the death sentence, and the ■voice of 
 John "W. Hurlbert fell upon the almost breathless 
 audience like a clap of thunder at noon-tide exclaiming : 
 
 " Stop, your honor ! for heaven's sake stop ! I desire 
 to be heai'd before your honor proceeds !" 
 
 The chief justice paused. His heavy browdarkened. 
 With a look of surprise and indignation he said, " What 
 is the meaning of this interruption, sir ? Do you, Mr. 
 Hurlbert, do you intend to trifle with this court? And 
 at this time? I am astonished, sir !" 
 
 " I never trifle with any court, sir — never, never. I 
 hold your honor in too high esteem to oppose here a 
 factious word or objection, but a matter has this moment 
 come to my knowledge to which it is my duty to call 
 the attention of the court, and I beg your honor to hear 
 me. The issue of life or death hangs on what I desire 
 to say." 
 
 " The court will hear you, sir," said the judge, in a 
 softened voice. 
 
 " I hold in my hand," said Mr. Hurlbert, " the writ 
 by which the jury in this case was summoned here, and 
 that writ has no seal of the court affixed to it, and I 
 believe, sir, that this renders all the proceedings of this 
 trial null and void. I therefore desire to move in arrest 
 of judgment at this time." 
 
 The manner in which the judge listened to the 
 counsel exhibited the emotion which it caused him ; 
 while the counsel for the people, startled and astonished, 
 gazed at the writ. 
 
 Judge Spencer took his seat, suad leaning his head 
 
74 LAWYER AND CLIENT. 
 
 upon his hand remained a few moments in deep 
 thought. 
 
 To the bar and spectators the scene had become one 
 of intensified interest, and the silence of death prevaded 
 the court-room. 
 
 McKay still stood in the prisoner's box lost in 
 wonder. Hope seemed springing suddenly from the 
 very caA'erns of death, while the form of his counsel 
 appeared to him like the angel of deliverance snatching 
 him from the gallows. 
 
 " Great G-od !" he thought, "is my life to be spared 
 after all? The scaffold ! the halter ! the death struggle ! 
 the cold damp grave ! the creeping worm ! Am I to 
 escape all these horrors ! " And in imagination he was 
 again in those fields were all those things are free. He 
 was brought back from these reflections by the judge 
 who directed him to take his seat. 
 
 " What answer have you to the point now raised by 
 the defense, Mr. Collier ?" asked the judge. 
 
 Collier, though taken by surprise, and evincing some 
 nervousness, gave able answer. He insisted that, as the 
 prisoner had appeared and challenged the jurors with- 
 out making the absence of the seal to the writ a ground 
 of challenge, he had waived all objections. Again, 
 by proceeding to trial without raising this objection in 
 any form, he had waived all error. 
 
 On the other hand, the counsel for the defense con- 
 tended that nothing could be taken against the prisoner 
 by imf)lication, and it could not be presumed that he 
 had waived any of his rights ; that as this was a capital 
 case the want of seal on the writ could not be cured 
 by stipulation ; that writ without a seal was no venire. 
 
OEDEAL OF BLOOD. 75 
 
 consequenilY the prisoner, though he had been tried 
 before twelve men, had not been tried by a jury, hence 
 his conviction was a nullity. 
 
 The judge decided to suspend the sentence of McKay, 
 until after the determination of the question at a 
 general term of the supreme court, and he was reman- 
 ded to jail. 
 
 The case was removed to the Supreme Court by a 
 certiorari. It was argued in Albany in 1820. Thomas 
 J. Oakley, then attorney-general, appeared for the peo- 
 ple, and John L. Talcott conducted the case for the 
 defense. After arguments of surpassing ability and 
 power, the verdict against McKay was set aside. Chief 
 Justice Spencer, in an able opinion, sustained the posi- 
 tion assumed by the counsel for the defense, and directed 
 a new trial.* 
 
 On the 20th October, 1830, McKay was again brought 
 to trial. After another long and tedious contest he was 
 fully acquitted upon grounds almost as providential as 
 those which saved him on the first trial. 
 
 Before the second trial occurred, the impression made 
 on the public mini by the spot of blood — the touch of 
 doom — had faded away, and he was tried without the 
 superstition that shadowed forth his guilt. 
 
 * The proceedings in this case, in the General Term of the 
 Supreme Court, are reported in 18 Johnson, 313. 
 
ALEXANDEll HAMILTON AND CHIEF JUSTICE 
 PARSONS IN THE COURT-ROOM. 
 
 AChance Shot. — Recollections of Erastus Root. — An Illustrious 
 Statesman of the State of New York. — A Break-Down 
 in Congress. — Great Libel Suit. — Root v. King and "Ver- 
 planck, Editors of the New York JjncWcara. — Judge Betts 
 on Newspapers. 
 
 General Root was present at the trial of the cele- 
 brated Halsey land action, that took place at Hart- 
 ford, Conn. In this suit Hamilton was opposed by 
 Theophilus Parsons, afterwards chief justice of Con- 
 necticut. 
 
 "The Connecticut lawyer," said Root, in a letter to 
 a friend in New York, "is a perfect walking law library, 
 with copious notes and a full index. He is as technical 
 as he is learned ; his subtle distinctions, and nice logic, 
 enabled him to expound, with admirable force and per- 
 spicuity, the rules controlling titles to land, the pro- 
 found distinctions of the law of real property, and all 
 the doctrines which govern the devolutions of estates, 
 and the interpretation of devises. The intricacies of the 
 English law on these subjects were perfectly familiar to 
 him, and he often pressed his great antagonist, as no other 
 lawyer is able to. But the latter, to use the language 
 of another, sowed his arguments broadcast, amplifying 
 them by every variety of illustration of which the sub- 
 ject admitted, deducing from them a connected series 
 of propositions and corollaries, gaining in beautiful 
 76 
 
HAMILTON AND PARSONS. -^^ 
 
 gradation on the mindj and linked together by a strong 
 chain of reasoning. 
 
 Parsons succeeded in the case, by turning, with 
 great ingenuity and learning, Hamilton's main point, 
 one that had cost him much study and research to elab- 
 orate, and which he regarded as impregnable. 
 
 " I have known," said Hamilton, "lawyers to split a 
 hair. I may have tried to do so myself, but I never saw 
 a person decimate a hair and count the pieces in pres- 
 ence of the court, until I saw Theophilus Parsons do it 
 in the Halsey trial." 
 
 The next day after the trial both lawyers dined with 
 a mutual friend. At table the conversation turned on 
 the suit they had just tried. "Parsons," said Hamil- 
 ton, "that point was fairly turned by you, but it cost 
 me much study. I did not believe it could be answered. 
 But you seemed fully prepared for it. Tell me, can- 
 didly, had you anticipated it ?" 
 
 "Not in the least. As long ago as I was a student, 
 the question was suggested to me by a fellow-student in 
 a sort of accidental manner. I looked it up, made a 
 note of it in a place-book which, by the way, I always 
 carry with me. When you raised the question, I thought 
 I had an answer for it ; so, turning to my place-book, 
 I found a note of it and sent for the volume containing 
 it, produced it, and succeeded against an antagonist, 
 give me leave to say, whom I dreaded as much as I re- 
 spected ; but I overturned you. General Hamilton, by 
 a chance shot, only." 
 
 " No, sir, by fixed ammunition and at long range," 
 was the courteous reply. 
 
 On the 5th of December, 1831, General Boot and John 
 
78 LAWYER AND CLIENT. 
 
 A. Collier took their seats in Congress. The former 
 had represented his district in that body many years, 
 and of course was a veteran in congressional tactics. 
 But Mr. Collier had never before been a member of a 
 parliamentary body, though, as we have said of him on 
 another occasion, he was one of the leading lawyers of 
 the state, a walking digest of law, a real chieftain in the 
 legal arena. Notwithstanding his legal abilities, his 
 maiden speech in Congress was a failure. 
 
 The session had advanced but a few weeks, when a 
 question came before the House, in which Mr. Collier 
 was deeply interested. It was understood that he was 
 to answer a member who was opposed to it. Accord- 
 ingly when he took his seat Collier arose, and said in a 
 tolerably firm voice, " Mr. Speaker !" " The gentleman 
 from New York," said the Speaker, bowing — but a mist 
 began to gather before the eyes of " the gentleman from 
 New York." Pausing a moment, and making a power- 
 ful effort to "screw his courage up to the sticking- 
 point," he again exclaimed, "Mr. Speaker !" " The gen- 
 tleman from New York," was the response. But another 
 embarrassing pause followed ; the House was silent as 
 the grave. All eyes were turned upon the new member, 
 and he felt benumbed by the several hundred eyes for 
 which he was a target. Taking his handkerchief from 
 his pocket, he wiped away the perspiration which now 
 stood in large drops on his face, and again esclaimed, 
 "Mr. Speaker!" "The gentleman from New York," 
 said that ofiScial, with a slight smile on his countenance ; 
 but the gentleman from New York was still silent ; 
 casting a furtive glance around him, he saw on every 
 side members ready to burst with laughter at his ex- 
 
HAMILTON AND PAESONS. 79 
 
 pense, but all power of speech seemed denied - him. 
 Turning around he discovered Root, who had taken a 
 seat near him, when he rose to speak : " General," he said, 
 in a low voice, " I have got the Speaker's eye, but I 
 wish it was a knot-hole, and that I was fairly in it." 
 Turning again to the Speaker, he said : " Mr. Chairman, 
 I shall leave the subject with the remarks I have made," 
 and took his seat amid the laughter of the members. 
 
 " What had I better do, General Eoot ; resign and go 
 home ? I have made a perfect failure," said he to Root, 
 after the House adjourned that day. 
 
 "Do no such thing ; at the bar you have a cheek like 
 a graven image, the impudence of a tin peddler, the 
 assurance of a traveling preacher. I should have be- 
 lieved a sign-post would have blushed and faltered, as 
 soon as you, on the floor of Congress. Go home ? No, 
 sir ; you have confidence enough, and abilities of the 
 highest order, if you will only use them. You will yet 
 become a leading debater here. If you had come here 
 and rattled away like an auctioneer, or made a flaming 
 speech, as some new members do, there would not be 
 half the hope for you that there is now. Pools never 
 blusli nor falter," was the reply. 
 
 General Eoot was right ; long before Mr. £!ollier re- 
 tired fi'om Congress, he was regarded as one of the ablest 
 speakers in a body then composed of men of much more 
 than ordinary eloquence. 
 
 In the year 1822, Erastus Root was elected Lieuten- 
 ant-Governor by the Democratic party. "As President 
 of the Senate, he possessed a very powerful influence in 
 the distinguished body over which he presided, and his 
 
so LAWYER AND CLIENT. 
 
 influence in the legislature, and throughout the State, 
 was never greater than at this time." 
 
 But brilliant, able, eloquent and influential as he 
 was, he was unfortunately addicted to the use of intox- 
 icating drink to an extent that gave his friends much 
 uneasiness, though, as is usual in such cases, this habit 
 was greatly exaggerated, aiiording his enemies an op- 
 portunity to attack him with some effect. One of their 
 attacks made upon him, led to the great libel suit 
 against King and Verplanck,* then the editors of the 
 New York American. 
 
 While Root was Lieutenant-Governor a change in the 
 electoral law was proposed, causing the most intense ex- 
 citement throughout the State. 
 
 The proposed amendment was blended with the mem- 
 orable presidential conflict, in which Adams, Clay, Cal- 
 houn, Jackson and Crawford were candidates for the 
 chief magistracy of the nation. 
 
 On the 24th of August, 1824, the Assembly sent a 
 resolution to the Senate, declaring the expediency of 
 passing, at that session, an electoral law. The nature 
 of the law was briefly defined in the resolution. A mo- 
 tion was immediately made by a Senator, that the Senate 
 concur in the resolution. For a few moments there was 
 a profound silence, broken at last by the President, who 
 arose and delivered an eloquent opinion, in which he 
 gave his reasons for declaring the resolution out of or- 
 der. He spoke at some length, and perhaps never more 
 logically or effectually. When he first commenced 
 
 * Reported in 7 Co wen's Reports, 613 ; 4 Wendell's Reports, 
 113. 
 
HAMILTON AND PAESOXS. 81 
 
 Sioeaking there was an embarrassment and hesitancy in 
 his manner quite unusual. This, as will be seen here- 
 after, was taken advantage of by his enemies in their 
 charge of ebriety. 
 
 The resolution was rejected, and immediately the 
 federal papers throughout the State opened their bat- 
 teries upon the Lieutenant-Governor, some of tliem 
 strongly hinting that he was intoxicated when deliver- 
 ing his opinion. The Albany Argus, then as now a 
 leading Democratic journal, in an ably-written review 
 of the speech, firmly, but courteously, repelled the charge 
 of intoxication. Whereupon the New York American, 
 an eminent Fedei'al paper, printed in the city of New 
 York, took up the ease, charging in strong and pointed 
 language, that Gen. Eoot was intoxicated, as bad been 
 alleged by several papers, and that the Argus knew it. 
 
 "We speak only what we saw ; and as it is a matter 
 of some public concern that the presiding officer of our 
 Senate should not continue to be what Mr. Eoot is, we 
 speak without hesitation or reserve," said the American. 
 The writer then proceeded to describe the condition of 
 Gen. Eoot, as he appeared when he delivered his speech, 
 insisting that when he advanced towards his chair, 
 through the center of the Senate-chamber, there was in 
 his appearance, manner and walk, something that ex- 
 cited every one's observation. " He reached his station, 
 however," continued the writer, "and, calling the 
 members to order, informed them that there was a mes- 
 sage from the Assembly, which the clerk then read. A 
 dead silence ensued ; Lieutenant-Governor Eoot, holding 
 on to each arm of his chair, looked around with inflamed 
 face, with blood-shot eyes, and with a drunken expres- 
 
82 LAWTEK AND CLIENT. 
 
 sion, that lender other circumstances could not have 
 failed to excite the derision of all present. 
 
 "Ho was expecting some motion fjreviously concocted 
 to enable him to pour forth the diatribe with which he 
 was laboring ; but none such was made, and he there- 
 fore was compelled to remark, 'the chair has no obser- 
 vation to offer, unless some motion be proposed.' 
 Thei'eupon it was moved by Mr. Burt, or some one 
 opposed to the faction, ' that the Senate concur in the 
 resolution sent from the Assembly.' 
 
 "This furnished the spark to the combustible smol- 
 dering in the breast of the Lieutenant-Governor ; in- 
 stantly he essayed to rise, and by the all-important aid 
 of the arms of his chair, and his desk in front, he did 
 rise and stood for a moment as in preparation, silent 
 before several hundreds of his fellow-citizens, an object, 
 from his appearance and manner, we will venture to 
 say, of loathing and disgust to every unprejudiced man 
 among them." The writer then continues to give a 
 passionate and distorted description of Mr. Eoot's per- 
 sonal appearance, exhibiting the bitter warfare which 
 politicians of that day waged against each other. 
 
 But the real cause for this bitter attack crops out in 
 the following language : "It is known that the presid- 
 ing officer of this body has no other than a casting vote, 
 and n:) right at all to speak. He may, however, assign 
 reasons for any decisions he makes ; and under this 
 shallow pretext Mr. Root uttered a long and labored 
 vindication, not only of the course he was about to take, 
 but of the whole course of proceedings of the Senate ; 
 and then launched forth into a regular philippic against 
 the Governor and Assembly. ... It was the harangue 
 
HAMILTON AND PARSONS. 83 
 
 of an intemperate demagogue, blind witli passion and 
 rum," &c. &o. 
 
 Immediately after the appearance of this singular ar- 
 ticle, G-eneral Eoot commenced an action against Messrs. 
 King and Verplanck, the editors of the American, for 
 a libel. They interposed a plea denying the charges in 
 the plaintiff's declaration, and, in accordance with the 
 practice at that time, with this plea gave notice that 
 they would on the trial give the truth of the matters 
 charged as libelous, in evidence, in justification, with 
 other matters of defense. In other words, they pro- 
 posed to prove on the trial the entire truth of the article 
 we have quoted. 
 
 The trial took place at Delhi, N". Y., in June, 1826, 
 before Hon. Samuel R. Betts, then one of the circuit 
 judges, and a jury. The magnitude of the case, the dis- 
 tinguished position of the parties, the brilliant an-ay of 
 the legal talent it summoned to the forum, gave it great 
 importance throughout the entire nation. 
 
 John Suydam, one of the most eminent lawyers then 
 at the bar, assisted by that widely-renowned advocate, 
 Elisha Williams, appeared for Geoeral Root. J. Blunt 
 and D. B. Ogden, no less eminent and learned than 
 their opponents, appeared for the defendants. 
 
 A large number of witnesses, among whom were 
 Senators, members of Assembly and other prominent 
 men, were examined, as well for the defendant as the 
 plaintiff. Every effort was made to prove the words in 
 the alleged libel true, while, on the other hand, all that 
 legal skill and nice management could do to shield Gen- 
 eral Eoot from the attack upon his character, was resorted 
 to. It is curious to note how the battle fluctuated be- 
 
Si LAWYEK AXD CLIKXT. 
 
 tween Tictory and defeat. One of the strong circum- 
 stances relied upon by the defense to prove the intoxi- 
 cation of Boot, was the high flush that appeared on his 
 countenance during the delivery of his speech. This 
 was ingeniously but fully answered by proving that at 
 the time of making it, there were two windows with 
 crimson curtains at the west side of the Senate-chamber, 
 that the light of an afternoon sun shining through these 
 curtains threw a red hue upon the face of Eoot, giving 
 it an inflamed apjoearance. Other witnesses testified 
 that in their opinion this appearance was produced by 
 the effort of speaking on a warm summer's day. On the 
 other hand witnesses testified that they noticed his red 
 or inflamed face before he went to the Senate-chamber. 
 Others testified that the hesitating and labored manner 
 in which he spoke, convinced them he was intoxicated. 
 Others that the general expression of his countenance 
 was that of a drunken man. While others testified that 
 his manner was more calm and deliberate than usual, 
 apparently as if adopted with a view to render his 
 ideas perfectly explicit and well-understood. One gen- 
 tleman of high character and standing testified that a 
 short time before the session commenced that day he 
 was in conversation with the General, and that he was 
 perfectly sober, but more thoughtful than usual. An- 
 other, that he saw him at his hotel just before he went 
 to the Capitol, and observed that ho was very pale, ajJ- 
 parently from ill health. There was a singular accu- 
 mulation of evidence on the appearance of Eoot on that 
 memorable occasion, but in the end the weight of evi- 
 dence was in his favor. 
 
 The defendants, however, contended that they had 
 
HAMILTON AND PARSONS. 85 
 
 made out a complete justificiition. They insisted that 
 their occupation and the plaintiff's official station — the 
 article itself, and the proof offered in support of its 
 truth, made out a sufficient justification of the alleged 
 libel, showing a good and sufficient motive for its pub- 
 lication. Tliat as public journalists, representatives of 
 an independent press, it is their duty to criticise the 
 manner, acts, and appearance of all public men ; that 
 this duty, properly observed, tends to the a;dvancement 
 of truth, science and morality, in its diffusion of liberal 
 sentiments on the administration of government, sham- 
 ing and intimidating oppressive, dishonest, and venal 
 officers into a more honorable and just mode of conduct- 
 ing public affairs. That the general belief among the 
 spectators present when the Lieutenant-Governor pro- 
 nounced his opinion, was that he was intoxicated ; that 
 this sustained them ; and, finally, that by the belief of 
 the defendants in the truth of the charge, tne malice of 
 the publication was taken away, and nominal damages 
 only could be awarded. 
 
 On the other hand it was contended, adopting the 
 language of Hamilton in the great libel case of the 
 People V. Crosswell,* that although the liberty of the 
 press consists in the right to publish, with impunity, 
 truth, with good motives, for justifiable ends, though 
 reflecting on government, magistracy or individuals, 
 the allowance of this right is essential to the preserva- 
 tion of free government ; still, when such publication 
 refers to the character of persons, the publishers are re- 
 
 * Reported in 3 Johnson's Cases, 343 ; Chancellor Kent's 
 opinion, 3 Wheeler Cr., 330. 
 
86 LAWYER AND CLIENT. 
 
 sponsible for the truth of the publication ; that though 
 malice is the gist of the action in suits for libel or verbal 
 slander, it does not mean ill-will towards the individual 
 affected ; that malice is an implication of law from the 
 false and injurious nature of the charge, and differs from 
 actual malice or \\\-will towards the individual, fre- 
 quently given in evidence to enhance damages. It was 
 also contended that the defendants wholly failed to es- 
 tablish a justification, and that nothing remained for 
 the jury to do but assess the damages. There were 
 other points submitted on both sides, that time will not 
 permit us to state. The charge of Judge Betts to the 
 jury in this truly great case, was one of the ablest ex- 
 positions of the law of libel, of privileged communica- 
 tions, of the belief of defendants in the truth of the 
 publication, of malice as an implication of law, and of 
 actual malice or ill-will towards the individual ; stating 
 that malice in making a charge, so far as libel is con- 
 cerned, need not be proved ; that it will be implied if 
 the charge is false. In speaking of the press he said, 
 "a trust of the most interesting and important charac- 
 ter subsists between the public and conductors of the 
 press. It is that nothing but correct, useful and whole- 
 some matter shall be circulated, especially that no other 
 shall be given upon the personal knowledge of editors. 
 In the present state of society, newspapers have become 
 elementary works of instruction ; they are admitted 
 into families, and pass from member to member with 
 the same unreserve that school-books and books of 
 worship are. They furnish aliment to youthful thought 
 and taste ; they make public opinion ; they enliven, ele- 
 vate and refine when properly conducted ; but when 
 
HAMILTON AND PABSONS. 87 
 
 f 
 
 badly conducted, they contaminate and befoul. Few 
 think of inspecting a newspaper before allowing it to be 
 read in the family circle, while other works are sub- 
 jected to a severe examination before they are admit- 
 ted there. The Psalm Book, the Prayer Book and even 
 the Bible are not more freely used in our families than 
 are newspapers. How important, then, it is that they 
 should be free from coarse and approbrioiis sentiments 
 — from exhibition of bad passions or scurrilous revilings 
 of those with whom editors chance to be at variance. 
 . . . Pew can withstand the attacks of the press 
 when its power is directed against private character. 
 What is the appeal ? Who listens to the cry of inno- 
 cence or regards the pain inflicted on the sufEerer or his 
 unoffending relatives ? It can only be done by visiting 
 with severe damages him who wantonly assails the 
 character of another through the public newspapers." 
 
 The judge further said to the jury, "that if the 
 publication admitted to have been made by the defend- 
 ants held the plaintiff up to reproach or disgrace, either 
 in his public or private character, it was a libel. That 
 malice need not be proved; that it would be implied if 
 the charge was false." He further stated, "that the 
 publication was libellous, and the contrary had not been 
 contended for on the part of the defendants. But they 
 asserted its truth; if it is true, this amounted to a per- 
 fect answer and full defense, and the defendants are 
 not liable, even though their motives might have been 
 ever so malicious. But the defendants are bound to 
 prove the whole charge satisfactorily ; that the justifi- 
 cation must be co-extensive 'with the libel; that as the 
 defendants had stated what they meant by drunken^ 
 
8S LAWYER AND CLIENT. 
 
 ness, they were bound to show that the plaintiff's situa- 
 tion was such as they described it." These were some 
 of the comments of the judge to the jury. There were 
 exceptions taken to many parts of this charge, and 
 finally the case was given to the jury. They were 
 out all night. In the morning they came into court 
 and requested instructions as to the proof of general 
 character, which might be received in mitigation of 
 damages. The judge said to them that "the defend- 
 ants may not give evidence of general character as to 
 temperance, in mitigation, unless of the same quality 
 and degree charged in the libel." This was excepted 
 to by defendants' counsel. The jury then retired, and 
 after a short absence returned into court with a verdict 
 of one thousand four hundred dollars. 
 
 The counsel for the defendants took the case to the 
 Supreme Court on a bill of exceptions. It was argued at 
 Albany in August, 1827. At the October term follow- 
 ing, a decision was handed down, affirming the judgment, 
 with costs. The opinion was written by John Savage, 
 then Chief Justice of the State, and concurred in by all 
 the members of the court. 
 
 But the matter did not rest here. The indefatigable 
 counsel for the defense, believing in the justice of their 
 case, took an appeal to the court for the correction of 
 error, then the court of last resort in the State. This 
 court was composed of the members of the Senate, the 
 Judges of the Supreme Court and the Chancellor of the 
 State. In December, 1839, the case was argued before 
 that truly imposing tribunal, in the Senate-Chamber 
 where Koot, as Lieutenant-Governoi-, five years before 
 had pronounced that opinion, out of which grew all this 
 
HAMILTON AND I'AESONS. 89 
 
 important litigation. Now, as on that occasion, the 
 Senate-Chamber was crowded with spectators drawn 
 thither to listen to tlie argument that was to be followed 
 by a final decision in the case. Representatives of the 
 press were there from all parts of the State and from 
 other States, anxious to listen to a discussion in which 
 they were so deeply interested. General Hoot himself 
 occupied a seat within the bar, and was the observed of 
 all observers. King, one of the defendants, was also 
 present, but Verplanck, the other defendant, had gone 
 from the collisions and trials of earth, beyond the reach 
 of worldly tribunals, up to the Great Judge of all. The 
 ease was argued for the defendants by Mr. Blunt and 
 John Duer, both accomplished and able lawyers. Ben- 
 jamin F. Butler and John Sadam conducted the argu- 
 ment for Gen. Root. Here, as opponents on this hotly- 
 contested legal field, appeared two of the illustrious 
 revisers of the Statutes of the State of New York, Mr. 
 Dner and Mr. Butler. 
 
 But the defendants were again subjected to defeat, 
 and their defeat was final and disastrous. The case had 
 been through so many courts that the costs exceeded 
 the judgment by a large sum. 
 
 Two members of the court wrote opinions ; Chan- 
 cellor "Walworth, in favor of afiQrmiug the judgment, 
 and Senator Mather, in favor of reversing it. Sixteen 
 members of the court were for affirming the judgment, 
 and four for reversing it. 
 
 Thus ended one of the most important cases affect- 
 ing the law of libel ever tried, especially down to that 
 time, and perhaps down to the present time, in this 
 State. The result was unsatisfactory to a large part of 
 
90 LAWYER AND CLIENT. 
 
 the public, who believed that the defendants established 
 a perfect justification for their public action, and should 
 have succeeded. Of course the friends of General Root 
 took another view of the case — one that was sustained 
 by three great tribunals, after long, patient and exhaus- 
 tive examination. 
 
LIGHTS AND SHADES OF THE COUET-EOOM. 
 
 Incidents in the life of Thomas A. Johnson, derived from a 
 long and Brilliant Career on the Bench — Personal appear- 
 ance — His manner — Sententious and Humorous Charge in 
 the case of the Lost Thumb— The Biter Bit— The Card- 
 player in Court — Johnson's opinion of a good Whist-player 
 — How he dealt with a Soft-hearted Jury. 
 
 In writing this work we have not intended, in any 
 sense, to enter the field of biography. But in carrying 
 out our design we have selected some scenes and inci- 
 dents in the life of Thomas A. Johnson, one of the 
 ablest, most experienced, venerated judges of our State, 
 because they are replete with interest and profit to all 
 classes of readers, and because they represent in a strik- 
 ing mannei', the trials and triumphs of the court-room. 
 
 From the formation of the government down to 
 1847 judges were appointed by the Governor, by and 
 with the advice of the Senate. An elective judiciary 
 was therefore regarded by many as the most dangerous 
 innovation of the new Constitution. It was urged that 
 the election of judges by the people would bring them 
 within the range of politicians, managers of conventions 
 and wire-pullers, who have no better comprehension of 
 the attributes of a judge than the managers of a horse 
 race. But, happily, their selection has been almost ex- 
 clusively committed to lawyers, who, as a rule, out of re- 
 spect for themselves and their profession, will see to it 
 
 [91] 
 
92 LAWYEE AND CLIENT. 
 
 that none but men of purity of character, learning and 
 ability shall be invested with the ermine. 
 
 In June, 1847, the first judicial election under the 
 new Constitution took place. Throughout the State 
 lawyers were elected for judges, of the highest and purest 
 professional and private character. As they had adorned 
 the bar, they added luster to a bench which has long 
 been the admiration of the nation, and the world. 
 
 Among the judges thus elected was Thomas A. John- 
 son, who for over a quarter of a century ranked among 
 the ablest of the American judiciary. In his long ju- 
 dicial career, he looked on almost every phase of the 
 legal world ; witnessed every kind of legal contest, and 
 measured every degree of legal learning, ability and elo- 
 quence. In the later years of his official life, the scenes 
 and incidents he had witnessed from the bench often 
 came before him, something like a panorama enlivened 
 by contests of conflicting interests, begun and ending in 
 selfishness, cupidity and fraud ; of honest claims re- 
 sisted by dishonest debtors ; of dishonest claims made 
 by the wealthy and powerful against the weak and 
 helpless ; of the traduced and slandered seeking to re- 
 store their good names by an ajDpeal to the law, often 
 leaving the court-room with the shades still deeper and 
 heavier on their characters. Of the innocent dragged to 
 the bar to answer for infamous crimes they never com- 
 mitted ; of the guilty brought there for due punish- 
 ment, struggling, often successfully, to escape the con- 
 sequences of the commission of a dreadful crime. Often 
 he pronounced that sentence which terminated the life 
 of a fellow-being on the scaffold, or incarcerated him in 
 a gloomy prison for a term of years. Then rendering 
 
LIGHTS AIsTD SHADES. 93 
 
 judgments that dissolved the marriage relation, or 
 changed the possession and ownership of many broad 
 acres : or the claim to vast sums of money. 
 
 Could this panorama be viewed by the world, from 
 his stand-point, what thrilling interest would it excite? 
 It would show, among other things, tliat the fame of 
 the Judge or the lawyer, no matter how bright in its 
 day, is almost as fugitive as the leaves of the sibyl ; 
 that the first makes a legal argument, in which perhaps 
 learning and genius are blended — in the preparation of 
 which he has spent weary days and nightly vigils. " When 
 the case is reported, the only notice he receives is, — 
 Jones for the plaintiff, and Smith for the defendant — 
 the result of all his labors is incorporated in the opinions 
 of the judges." 
 
 What of the judges ? Many of their ably-written 
 judgments, bearing the impress of elaborate study, 
 which, for power of thought, beauty of illustration, 
 severity of reason, and elegant demonstration are justly 
 numbered among the highest efforts of the human mind, 
 find no admiration in literary or scientific circles, or 
 among the people, and nowhere except in the ranks of 
 the few lawyers who thoroughly read and digest them. 
 
 Johnson studied his profession with that judge of 
 historic fame, that legislator of purity and Avisdom, 
 Eobert Monell. He used to relate an anecdote of 
 Monell which strongly illustrates one of the most pleas- 
 ing traits in his character. 
 
 A very capable, ambitious young lawyer waj? trying 
 a case before him at Angelica. He appeared for the 
 plaintiff. When he rested his case, Martin Grover, 
 with whom it was his misfortune to grapple as an 
 
94 LAWYER AND CLIENT. 
 
 Opponent, moved for a nonsuit. Grover's point was 
 as subtle as it was strong, unexpected and fatal to the 
 plaintiff's case. But fo the surprise of the members of 
 the bar and disgust of Grover, the judge denied the 
 motion, refusing to nonsuit the plaintiff. The motion 
 being thus disposed of, court adjourned for dinner. 
 On his way to the hotel the judge was accompanied by 
 a lawyer, who said : 
 
 " Judge Monell, I really cannot see on what ground 
 you denied Grover's motion for a nonsuit." 
 
 "Well," said the judge, ''there really are no legal 
 grounds for denying it, but I denied it on other grounds. 
 To have nonsuited that young man, before all those 
 lawj'ers and that great crowd of witnesses and spectators, 
 would have been a dreadful blow. I could not do it. 
 But I'll take good care of Grover's point when I chargo 
 the jury, for it covers the whole case ; the grounds fo>' 
 the nonsuit cannot be removed, and I shall charge the 
 jury accordingly." He did so. Grover had the full 
 benefit of his point, while the fall of the young lawyer 
 was greatly softened. 
 
 Judge Johnson had strong sympathies, strong antip- 
 athies and prejudices. It cannot be denied that these 
 occasionally exhibited themselves in him when on the 
 bench. Usually, however, he presided there with an 
 amenity and impartiality that rendered him a favorite 
 with the huT and the public. 
 
 There was much in the appearance of Thomas A. 
 Johnson that commanded respect. His form was tall 
 and commanding, approaching herculean symmetry. 
 His forehead was high, his eyebrows heavy and dark. 
 All his features were large and strongly marked. But 
 
LIGHTS AND SHADES. 95 
 
 they were set off by a dark, expressive eye; lips which, 
 when closed, showed inflexible decision — when speaking, 
 became supple and flexible with an easy humor. In re- 
 pose this tout ensemUe was pleasing and attractive, but 
 when roused to indignation there was something leo- 
 nine and fearful in it. Sarcasm and irony from such a 
 person, it can easily be conceived, were terrible weap- 
 ons. He possessed them, and occasionally used them 
 with withering effect. "We have sometimes seen his 
 eyebrows contract, his forehead knit, and a portentous 
 frown lower over his features, when a persistent, con- 
 ceited, impudent lawyer in the trial of a cause so far 
 trenched on the rules of propriety as to approach con- 
 tempt of court. It was fortunate indeed if the offender 
 read the coming storm in the face of the presiding judge. 
 
 His strong sense of right and justice were frequently 
 exhibited on the bench in a manner that pleasingly re- 
 vealed the wit and humor that lay deep in his nature. 
 We remember a case in point.. 
 
 A man brought an action against a neighbor for bit- 
 ing off one of his thumbs. The evidence showed that 
 the plaintiff — the victim of the lost thumb — commenced 
 an assault on the defendant by knocking him down, 
 falling upon him and attempting to gouge out the man's 
 eyes ; that while in the act of inserting his thumb into 
 one of his victim's eyes, by accident it slipped into his 
 mouth and was immediately bitten off. The wound 
 was terribly painful, and the loss of the thumb a very 
 serious matter. Judge Scott Lord, who appeared for 
 the plaintiff, admitted that his client made the first 
 assault, but insisted that, as the defendant used more 
 force and inflicted greater injury than were necessary 
 
96 LAWYER Airo CLIENT. 
 
 in repelling it, he was liable for the heavy damages his 
 client had sustained. The judge, however, took a 
 different view of the case. His charge to the Jury was 
 a model of dignity, point and brevity. There were 
 witty, humorous tints jolaying about it that occasionally 
 illume the dull and uninteresting proceedings of the bar. 
 
 " Gentlemen of the jury," said he, "you have list- 
 ened very attentively to the evidence in tbis case. It 
 shows that the plaintiff made an assault upon the de- 
 fendant and knocked him down; that while he was 
 down the plaintiff continued the assault by feeling, 
 with a malicious intention, for one of the defendant's 
 eyes, and with a purpose that no one can doubt; that 
 while in this act, by some means, one of his thumbs 
 was inserted in the defendant's mouth, instead of his 
 eye, and that the defendant then bit it off, inflicting, 
 as the evidence shows, a very severe and painful injury. 
 
 "Now, gentlemen, the court instructs you, as a mat- 
 ter of law, that when a rgan knocks another down and 
 then proceeds to dig out one of his eyes and by accident 
 slips one of his thumbs into the prostrate man's mouth, 
 there is no law that will prevent the man from shutting 
 his mouth as firmly as he pleases, regardless of what 
 may happen to the thumb, especially, as in this case, 
 he used no inducement for its owner to place it there. 
 The old law, lex talionis, was that one might take an 
 eye for an eye and a tooth for a tooth. In this case the 
 old rule is inverted; here it was a tooth for a thumb 
 when the thumb was going for an eye. You may retire, 
 gentlemen." 
 
 We need not add that the defendant had a verdict. 
 
 On another occasion an ex-judge of the Supreme 
 
LIGHTS AND SHADES. [) ( 
 
 Court, who, at the expiration of his term, had returned to 
 tlie practice of his profession Avith distinguished success, 
 appeared for the plaintiff in an important cause. During 
 the trial the opposing counsel introduced a witness 
 whose testimony yisibly shook the plaintiff's case, much 
 to the annoyance of his counsel, who, before commencing 
 the cross-examination, whispered to his client and asked 
 if the witness was in every sense reliable. 
 
 "I don't think of anything to the contrary," was 
 the reply. 
 
 " Don't you know of anything at all against him? 
 Because, if you do not your case is destroyed." 
 
 "Nothing, except that he plays cards a good deal." 
 
 " Ah ! indeed; he is a card-player, is he ?" asked the 
 counsel, brightening up. "Does he play a good deal? 
 and does he gamble ?" 
 
 "I don't think he gambles, but he plays a great deal, 
 and is the best player in the country, and plays every 
 chance he can get." 
 
 The ex-judge, though a highly respectable citizen, 
 and eminent at the bar, was, withal, slightly Puritanic 
 in his notions, and verily believed that card-playing, in 
 any way, was a great evil ; that by showing the witness 
 to be a card-player he would discredit him with the 
 jury. Rubbing his hands with delight at the fortunate 
 discovery he had made, he commenced the cross-examina- 
 tion in earnest. After a few prehminary questions he 
 went directly to the point. 
 
 " Mr. J — , are you not a professional c&,rd-player?" he 
 asked, with some severity. 
 
 " I don't know that I am a professional card-player, 
 but I play cards sometimes." 
 4 
 
98 LAWTEE Airo CLIENT. 
 
 "1 ask you, sir, if you do not play cai'ds a great deal ? 
 if you are not in the constant habit of playing ?" 
 
 " I don't know what you mean by a constant habit." 
 
 " I mean what I say, sir ! and I ask yoii again if you 
 are not in the constant habit of playing cards ?" 
 
 " Why, I play cards quite frequently for amusement, 
 but I never gam- — — " 
 
 " I did not ask you what you played for," said the 
 counsel, interrupting the witness. " Now, sir, tell me 
 how often you play cards." 
 
 " Well, sir, my wife and daughters often make up a 
 little party and we play a " 
 
 " I did not ask you to tell me what your wife and 
 daughters did or do. I want you to tell me how often 
 you play cards." 
 
 The witness hesitated, and the opposing counsel ob- 
 jected to the question as irrelevant. 
 
 The members of the bar present had been watching 
 the peculiar expression on Johnson's countenance while 
 this cross-examination proceeded ; there was something 
 in the contraction of his heavy eyebrows that told 
 plainer than words his opinion of it, and that the ex- 
 judge was about to hear from him. But the latter, 
 intent on destroying the credibility of the witness, and 
 fuUj' believing he was doing so, insisted that there was 
 nothing in the objections of the opposing counsel, and 
 that he should be permitted to continue the cross- 
 examination. 
 
 " What is the object of this cross-examination ?" 
 asked Johnson. 
 
 " It is to discredit the witBiess, your honor," said the 
 ex-judge. 
 
LIGHTS AND SHADES. 99 
 
 "Do you think this kind of evidence will impair his 
 credibility?" 
 
 " Oh, certainly ; most certainly ; I propose to show 
 that the witness is an inveterate card-player ; that he 
 employs most of his leisure at the card-table, and there 
 is no doubt but I am entitled to the evidence." 
 
 "I think myself you are. But suppose you succeed, 
 and show the witness to be a veteran, as well as an 
 inveterate, card-player, in an innocent way, like others 
 you might possibly mention, how will that help you ?" 
 asked Johnson, with a slight smile on his face. 
 
 " Why, your honor, as I said before, it will discredit 
 the witness very much indeed." 
 
 "Well, perhaps it may. You may continue the 
 cross-examination ; but if you draw out of the witness 
 that he plays a strong game of whist, and that he is fair 
 at euchre, I think I ought to charge the jury that he is 
 a credible witness. But proceed with the cross-exam- 
 ination, sir." 
 
 "Why, in that way your honor will euchre me," 
 said the ex-Judge. 
 
 " Then, judge, why not acknowledge that you have 
 nothing in your hand, and throw it up ?" asked John- 
 son, in his blandest manner. 
 
 "I think I will," said the counsel, and the witness 
 was dismissed. 
 
 We have related incidents showing Johnson's pleas- 
 antry on the bench. The following exhibits him when 
 aroused to indignation. 
 
 While presiding at a Livingston county circuit, an 
 aggravated case of assault and battery came on for trial. 
 
100 LAWYER AND CLIENT. 
 
 The plaintiff was a widow and a tenant of the defend- 
 ant. One day a dispute arose between them concerning 
 some repairs which the former desired to have made. 
 The difiSculty ended in a very bitter quarrel. Both 
 parties used the most insulting language. The lady, 
 howcTer, had the sharpest tongue, and she used it, as 
 only an intelligent, quick-witted woman, thoroughly 
 indignant, can use that member. The man saw that he 
 was no match for the lady in a conflict of words, and 
 he sought a more effective weapon than the tongue. 
 Finding a heavy flat-iron standing on a table near him, 
 he dealt her a terrible and nearly fatal blow on the 
 head, which felled her to the floor. Not satisfied with 
 this, he struck the prostrate woman another blow with 
 the same weapon. At first it was thought she was dead, 
 but she slowly recovered, and commenced the action to 
 which we have referred to recover the damages which 
 she had sustained. 
 
 The defendant did not deny that he struck the 
 woman with the iron, but denied that she sustained any 
 material injury, and by way of further mitigating dam- 
 ages, set up " the impudent, insulting and outrageous 
 language," which the lady had used toward him. 
 Under this answer the defendant's counsel made a very 
 ingenious and effective address to the jury, which so 
 wrought upon their feelings that they rendered a ver- 
 dict for only sixty dollars against the defendant. This 
 was, of course, a brilliant victory for the eloquent law- 
 yer who had defended him. But it was of short dura- 
 tion. The moment the foreman announced this verdict, 
 all in the court-room saw in the cloud that overspread 
 Johnson's features " the prelude to a coming storm," 
 
I.TGHTS AND SHADES. 101 
 
 and it came in full force. "Clerk!"' be tlnuidercd, 
 "enter an order setting aside that verdict! It is a 
 disgrace to the records of this court ! When jurors 
 show no more regard for human life than this it is high 
 time for the court to interfere and teach them a salutary 
 lesson !" 
 
 The verdict was accordingly set aside. 
 
 A discussion then arose between the counsel as to 
 the pay of the jurors, one of them contending that they 
 were not entitled to pay, while his opponent insisted 
 that they were. The matter was left to the judge's 
 decision. 
 
 " Of course the jurors are entitled to their pay, for 
 they have rendered a verdict, such as it is. Pay 
 them, and I ti'ust every juror will keep his two shillings 
 and study it faithfully as a reminder of his duty as a 
 juror, before he ever undertakes to render another 
 verdict," said Johnson. 
 
 At a subsequent circuit the case was again brought 
 to trial and a very satisfactory verdict was rendered for 
 the lady. 
 
 Judge Johnson died at his residence in Corning, 
 December 7, 1872. 
 
 Like Marshall, Tenterden, Talfourd, and many 
 other eminent judges and lawyers, Johnson occasionally 
 courted the Muses with success. To a certain extent he 
 enriched the literature of his day with valuable but 
 anonymous contributions to the press. 
 
 He disliked those sporadic abilities which, while 
 they glitter, weaken by unhealthy distribution. But 
 he felt that lawyers as a class need the vivifying influ- 
 ence and aid of a refined and elevated literature to 
 
102 LAWTEK AND CLIENT. 
 
 render their minds more vigorous and flexible, and to 
 relieve them from that dull, argumentative reason and 
 its pigeon-holed inertness which paralyzes the eloquence 
 of the bar. 
 
 Among the published productions which Judge 
 Johnson acknowledged is his poem entitled " The 
 Chemung and its Tributaries," published in December, 
 1870. It is a lively, strong and pleasing picture of the 
 Tioga, Oohocton and Canisteo, concluding with their 
 union, to form the Chemung. It is an entirely un23re- 
 tending production ; still, it has much delicacy and 
 richness of tint, truth to nature and opulence of 
 thought, fancy and imagination — presenting the crags, 
 cliffs, rocky pinnacles, pine-clad hills, devious rivers and 
 charming valleys of Steuben and Chemung in lights and 
 shades that carry the reader back to days before 
 
 " Sullivan in martial force, 
 And sword and gun and wasting flame " 
 
 accelerated the doom of a race now forever vanished from 
 the shores of those beautiful rivers and charming val- 
 leys. Those not intimately acquainted with Judge 
 Johnson would hardly believe — from his apparently 
 prosaic nature — that he ever entered those regions 
 "where poetry is born, nourished and plumes itself for 
 an immortal flight." But he was one of those who may 
 be said to have two lives, the inner and the outer ; one 
 of which is in a world of ideality and beautiful concep- 
 tions, of poesy and of song, of the picturesque and the 
 lovely ; the other, a world of stern reality, of strife, of 
 ambition, hopes, fears, failures, disappointment and 
 death. 
 
LIGHTS AND SHADES. 103 
 
 In June, 1848, soon after his election, Judge Jolin- 
 son presided at the Wayne Circuit. Here he met Hon. 
 James C. Smith, then a distinguished and successful 
 lawyer — now one of the Judges of the Supreme Court. 
 At this term Judge Smith tried several important cases, 
 and he was favorably impressed witli the judicial supe- 
 riority of Johnson, even at that early period ; while his 
 pleasing simplicity of manner, social qualities, and 
 courteous bearing toward the bar — especially the 
 younger members — his abihty and impartiality, were 
 spoken of in terms of high commendation by the 
 journals of the village. 
 
 When the circuit finally adjourned its sittings, he was 
 invited by Mr. Smith to spend two or three days with a 
 friend of his at Sodus. As the Judge had never visited 
 that charming place, where so many beauties of nature 
 are blended, the invitation was accepted, and, with Judge 
 Smith, he became a guest of Benjamin Lummis, Esq., 
 a gentleman of cultivation and taste, whose hospitality 
 is widely known. At this time Mrs. Elizabeth P. Ellet, 
 a sister of Mr. Lummis — a charming writer and well- 
 known authoress — was visiting her brother. Sodus was 
 then, as it always is at that season of the year, a resort 
 for persons of intelligence, refinement and leisure, form- 
 ing a society at once entertaining and profitable. Judge 
 Johnson, relieved from his judicial cares and labors, 
 gave himself up to the enjoyment of social intercourse, 
 exhibiting the freshness and resources of his conversa- 
 tional powers. Though he was not what may be termed a 
 brilliant talker, he was interesting, natural and un- 
 assuming in conversation, with a ready fund of anecdote 
 at his command. 
 
104r LAWYER AND CLIENT. 
 
 In-after life Judge Johnson often remarked that this 
 visit was one of the most agreeable and pleasing 
 incidents in his life. 
 
 Time passed on, hurrying his brethren of the bench, 
 one after another, to the grave. At length James C. 
 Smith became a Justice of the Supreme Court and a 
 judicial associate of Johnson, E. Darwin Smith and 
 Henry Wells. Soon after his appointment Judge Smith 
 received a beautiful poem from Johnson, describing 
 their first meeting at the Wayne Circuit and their visit 
 at Sod us. It playfully, but gracefully, alluded to many 
 of the incidents and much of the conversation which 
 took place there. It was an unstudied, happy, truthful 
 picture, which revived pleasing memories of the past. 
 Each one of the dramatis personm were faithfully por- 
 trayed, all life-like. 
 
 "With hands as warm and brows as gay 
 As if they parted yesterday." 
 
 The poem was accompanied by a letter congratulating 
 Judge Smith upon his appointment, and welcoming him 
 to that bench up>on which Kent, Spencer, Marcy, Van 
 Ness, ISTelson, Cowen and Beardsley had sat. 
 
 Judge Johnson brought to the bench a drastic physical 
 and mental strength that enabled him to endure the 
 most ardent and wearing labors of his office for twenty- 
 five years. The large number of opinions written by 
 him exhibit accurate legal knowledge, and are couched 
 in plain, strong, elegant language. His style " is an 
 aggregate of argument and concise facts in a small 
 space, united together as by bands of iron." But above 
 all they bear the sure indication of an elevated, resilient 
 
LIGHTS AND SHADES. 105 
 
 mind, and the habit of referring all questions to that 
 stern tribunal — conscience. 
 
 Therefore, the bar loves to recall the memory of his 
 judicial career, his brethren of the bench remember him 
 ' with fraternal affection ; the multitude of suitors, jurors, 
 witnesses and spectators who saw him discharging his 
 duties on the bench speak of him with yeneration and 
 respect. 
 
 For several years he was the presiding judge of the 
 4th Judicial Department of the State. He died at 
 Corning, his place of residence, December 7th, 1872, 
 having five years of the term for which he was last 
 elected unexpired. 
 
ARTISTIC AND MENTAL PORTRAITS OF 
 FOUR EMINENT LAWYERS AND STATES- 
 MEN OF WESTERN NEW YORK. 
 
 John C. Spencer — Francis Granger — Gideon Granger — Pleasing 
 Circumstances and Incidents in Tlieir Lives — Portrait of 
 an Illustrious Orator and Statesman. 
 
 The walls of the county court-room, at Canandaigua, 
 N. Y., have, by the good taste and liberality of the 
 people of Ontario county, been embellished with well- 
 executed portraits of persons distinguished, not only 
 in the history of Western New York, but in the State 
 and nation. Thus, the contests of the bar, the deep 
 solicitude of suitors, and the deliberations of judges, 
 are witnessed by jurist, statesmen, advocates and poli- 
 ticians of the past, which the pencil of the painter has 
 rescued from " time's effacing fingers." Many of these 
 paintings, if not marked by the highest powers of 
 genius, exhibit much force and vitality and vigor of 
 touch, united with delicacy and grace. The effect they 
 produce upon the thoughtful observer is singularly im- 
 pressive, causing him to reverently acknowledge the 
 oracle of art, which, by a happy thought, is here made 
 a beautiful accessory to the presiding genius of the 
 place — justice. Voiceless and shadowy, they unite the 
 p%st with the present, suggestive of old traditions, his- 
 toric events and man's fading glories. Prominent 
 among those whose forms and features have been thus 
 preserved, is the portrait of John 0. Spencer. 
 [106J 
 
AETISTIG AND MEKTAL POETRAITS. 107 
 
 He looks down from "the speaking canvas," self- 
 poised, cold, passionless, and confident of his own men- 
 tal strength. His features are marvelously suggestive 
 of "that insatiable activity of mind, knowledge of the 
 widest scope, and aptitude for public affairs " that ren- 
 dered him a powerful supporter of De Witt Clinton's 
 splendid policy and career — the great lawyer, accom- 
 plished statesman and cabinet minister. 
 
 A distinguished feature in the mental portrait of 
 Mr. Spencer — the one that gave him national fame, was 
 the happy manner in which he united philosophy with 
 eloquence. This, by common consent, caused him to be " 
 styled the philosopher of the American bar, just as 
 Ogden Hoffman was known as the Erskine of his times. 
 This gave fascination to logic and emotionless reason, 
 that otherwise would have fallen coldly from his lips. 
 This enabled him to imbue his auditors with the 
 " sober, serious rapture," which solid argument inge- 
 niously and gracefully urged always produces. There 
 was freshness in his thought, and he possessed the 
 power to meet the intellectual wants of thinking men. 
 In other words, he rendered his thoughts obvious, plain, 
 and yet shining with irresistible evidence. 
 
 His arguments at the bar, so abundant in the earlier 
 American reports, his speeches in popular assemblies, 
 his diplomatic and other writings, though many of 
 them were fugitive and temporary in their nature, have 
 inseparably connected themselves with the learning of 
 the bar, with the preserved erudition of American 
 statesmanship, and the permanent literature of the 
 nation. 
 
 John C. Spencer was born at Hudson, N. Y., Au- 
 
1U8 LAWYER AND CLIENT. 
 
 gust 12th, 1786. His father was Chief Justice Ambrose 
 Spencer, distinguished in the history of the State of 
 New York, as the able compeer of Hamilton, Schuyler, 
 Jay, Clinton, Van Buren, and Tompkins, and as one of 
 the most illustrious, learned and pure judges that ever 
 adorned the bench. 
 
 Young Spencer was graduated at Union College, in 
 July, 1803, at the age of seventeen. He prepared for 
 the bar under the instruction of his gifted father, taking 
 his degree as attorney-at-law in May, 1806. In the 
 year 1809 he removed to Canandaigua. This beautiful 
 town was then thought to be so far distant from the 
 Atlantic towns and the villages along the Hudson, that 
 a journey to it was regarded far more difficult and dan- 
 gerous than a tour across the continent now is. But it 
 was said to be situated in a country as charming as the 
 Garden of Hesperides, or the Vale of Tempe. 
 
 Though his professional progress was slow, it was 
 sure. It placed him at the head of the State bar ; it 
 gave him a seat in the assembly and in the senate of 
 the State of New York, and in congress ; made him a 
 reviser of our statutes — the Justinian of his country. 
 It made him Secretary of War in the cabinet of John 
 Tyler, " where his extraordinary administrative abilities 
 were invaluable to the incoherent and disorganized cab- 
 inet which Tyler's unexpected and sudden accession to 
 the presidency compelled him to call around him." Mr. 
 Spencer resided at Canandaigua until September, 1837, 
 when he removed to Albany, where he spent the remain- 
 der of his life. He died on the 20th day of May, 1868. 
 
 Hard by the portrait of John C. Spencer hangs that 
 of Francis Granger, another citizen of Canandaigua, 
 
ARTISTIC AND MENTAL PORTRAITS. 109 
 
 high in rank as a political leader, legislator and cabinet 
 minister. 
 
 This picture commands attention and study, not 
 only for the softness, grace and accuracy of its com- 
 position, the exquisite blending of its lights and shades, 
 but for the intellectual expression that presides over it. 
 Thought seems to breathe through all its lines in the 
 visible harmony of manly beauty. Not only the critical 
 admirer of antique art, he who can read the attractive 
 story of Psyche in the mute marble form carved by the 
 sculptor, but he who loves to study " the human face 
 divine," will pause to admire this iine painting, the 
 work of some gifted artist to us unknown. 
 
 The whole contour of the face exhibits conscious su- 
 periority — a patrician's self-respect, softened by culti- 
 vation, amiability and generosity. 
 
 So much for the portrait — what of the original ? 
 
 Never was there finer model for sculptor or painter, 
 even of the most fastidious school or age, than were 
 the features and form of Francis Granger. If the chisel 
 of Michael Angelo made marble flexible, it was the sub- 
 ject upon which he employed his chisel. In the same 
 sense, the task of drawing the mental portrait of a man 
 like Francis G-ranger, though not committed to a master 
 hand, is easy, notwithstanding some difficulties present 
 themselves. In executing it, may we not hastily accept 
 the natural guidings of our more generous nature, which 
 is ever best pleased in looking back upon the career of 
 the loved and admired in life, to remember only their 
 virtues, and to dwell upon them with gratitude and af- 
 fection, leaving whatever of earth was in their souls to 
 decay with their bodies in the grave ? This is what ex- 
 
110 LAWYEK AND CLIENT. 
 
 perience sanctions as most truly beneficial, this is what 
 liberality dictates, and love enjoins. "As with the land- 
 scape, which, when seen near at hand, discloses many 
 marks of barrenness and imperfection, yet as distance 
 rounds itself off into forms of loveliness, stimulating our 
 hopes as we approach it, waking an affectionate regret 
 as we leave it," so let it be with the characters of the 
 past that come under our feeble review. 
 
 Mr. Granger stood conspicuous among the great men 
 with whom he was an actor. Though he had none of 
 the prestige which a brilliant career on the bench or at 
 the bar usually gives, he was seldom eclipsed in parlia- 
 mentary bodies or in the cabinet by those who had 
 prestige. They rather served to elicit his talents as a 
 political leader, and to bear testimony to his creative 
 force of character as a manager of a party, moved, en- 
 ergized and controlled by the the most illustrous states- 
 men in the world — we allude to the Whig party now 
 passed into history. To all his work he brought an of- 
 ficial and personal integrity that never for a moment 
 encountered a suspicion or a whisper of reproach. He 
 was not a reformer, not a man to attack existing evils 
 in the State, but rather inclined to suffer from them, 
 while endurable, than to disturb the existing forms by 
 which they are protected. 
 
 It has been said that Mr. Granger was not an elo- 
 quent speaker, but we think otherwise. He could 
 readily grasp ideas, and with easy logic deliver them in 
 fitting words to the public ear. In this respect Mr. 
 Granger was an orator. But the accomplishments and 
 powers of his mind were best exhibited by his strong 
 and graceful pen. Never prodigal of its productions— 
 
AETISTIC AND MENTAL PORTRAITS. Ill 
 
 seldom wielded, except in the discharge of the impor- 
 tant duties which Providence committed to his hands. 
 He was stately, but courteous, easy and dignified in his 
 manners, commanding and almost superb in his person. 
 There is much harmony in his mental portrait, and his 
 intellectual qualities compare admirably with his physi- 
 cal, so that his mind, heart and visible bearing elicited 
 spontaneous respect, if not admiration. Though in pub- 
 lic and private life he was flexible to every human sym- 
 pathy, he was not what may be called a popular man 
 with the masses. Such men seldom are. He belonged 
 to that aristocracy of talent and wealth which formed 
 the nucleus of the Whig party, and he had no occasion 
 to assume the platitudes of the mere politician to give 
 him success. Besides this, he knew that the populace 
 never long esteem those who flatter it at their own ex-/ 
 pense ; that he who has the suppleness to cringe to it, , 
 will live to complain of the fickleness of the masses. ^ 
 Francis Granger was born at Suffield, Conn., June 
 8th, 1793. He was a son of Gideon Granger, of that 
 town, distinguished iu the history of Connecticut as a 
 lawyer, author, legislator and minister of state — a 
 character fitted by education and position for useful-ac- 
 tivity. In 1801, after Democracy and Jefferson had 
 overthrown the Federal party, he was appointed Post- 
 master-General — a position which he occupied through 
 successive administrations down to 1814. In 1815, he 
 removed to Canandaigua, where he spent the remainder 
 of his life. He was then forty-nine years of age — in the 
 prime of his manhood. He at once entered largely into 
 the public afiairs of Western New York, representing 
 
112 LAWTEK AND CLIENT. 
 
 his district in the State Senate several years, holding 
 other responsible and honorable official positions. 
 
 After graduating at Yale College, young Granger 
 entered the office of John 0. Spencer, at Canandaigua, 
 as a student at law. In due time he was admitted to 
 the bar, but he never practiced his profession. Though 
 he ignored the bar, the politioial arena to him was in- 
 vested with many attractions, and he entered to win 
 honor and distinction. His wealth, the influence of 
 his high family, his education and talents, combined to 
 give him, while yet young, a conspicuous position as a 
 politician. It was his fortune to pass his youth and 
 enter manhood at a peculiarly interesting period in the 
 history of the state and the republic. It has been said 
 that the history of the memorable reign of Louis XIV. 
 of Prance, is contained in the lives of Eichclien and 
 Mazarin. It may with equal truth be said that much 
 of the history of the State of New York which vitally 
 affects posterity is contained in the life of De Witt Clin- 
 ton and his compeers. It was the era in which our 
 grand system of internal improvements was inaugu- 
 rated — our system of constitutional, common and stat- 
 ute Jaw founded. In this age, amid the exciting and 
 prolonged political contest in which Martin Van Buren 
 and De Witt Clinton, each with his eye on the presiden- 
 tial chair, were struggling for supremacy — a contest 
 in which the star of Clinton, though occasionally 
 dimmed by depressing defeat, was in the ascendant. 
 
 Mr. Granger espoused the cause of the latter with 
 great warmth, as did most of the leading men of West- 
 ern Kew York. He came first to the public service in 
 1826, as a Clintonian member of Assembly from Ontario 
 
AETISTIC AND MENTAL I'eiETEAITS. 113 
 
 county. He represented this county with great ability, 
 by repeated elections, five successive terms. Ou the 
 38th day of February, 1838, a few weeks after he 
 entered on his second legislative term, De Witt Clinton 
 died. With his death the splendid party which his 
 grand policy and his great ability had called around 
 him, was gradually dissolved, leaving Mr. Van Buren 
 without a rival for the presidency in the State of ISTew 
 York. Mr. Granger never gave Van Buren, or the 
 Democratic party, of which he was the acknowledged 
 leader, his support. 
 
 Before the death of Clinton, the alleged murder of 
 Morgan by the Masons took place. This created an 
 excitement which shook the State from center to circum- 
 ference, producing an excitement that amounted to 
 popular frenzy. Out of it, after the death of Clinton, 
 the famous anti-Masonic party sprang into existence. 
 Mr. Granger was one of the founders of this party. In 
 the State of N"ew- York it soon became so powerful that 
 it grappled with the Democratic party in disputing for 
 the mastery of the State. In Western New York i t be- 
 came the dominant party, while it was formidable in 
 all parts of this and many other States. 
 
 In 1830, Mr. Granger was nominated by this party 
 for Governor. His opponent was Enos T. Throop, who, 
 after a severe and exciting contest, was elected by a 
 small majority. In 1833, he was again nominated for 
 Governor by his parly. This year that illustrious states- 
 man, William L. Marcy, was his antagonist. Mr. 
 Granger was defeated by a majority of 9,798. 
 
 But the anti-Masonic party had only an ephemeral 
 existence. The contest which resulted in the election 
 
114 LAWYER AND CLIENT. 
 
 of President Jackson, eliminated all its vitality, and it 
 became a thing of the past. Out of its ruins, and from 
 the ruins of the National Republican party, the Whig 
 party came into existence ; the powerful, and at last 
 victorious opponent of the Democracy. Mr. Granger 
 at once became an acknowledged leader of this party. 
 In the autumn of 1834, he was elected Representative in 
 Congress by the Whigs of his district. He entered upon 
 the duties of his office December 7th, 1835. At the ex- 
 piration of his ofiBcial term, he was re-elected, and he 
 continued to represent his district until March 3d, 1841. 
 Very soon after retiring from Congress, he was appointed 
 by President Harrison Postmaster-General. Hardly had 
 a month elapsed after assuming the duties of his office, 
 when Harrison died, and his cabinet, with the exception 
 of Mr. Webster, retired. On the 6th of September, 
 1841, John Greig, a member of Congress from the 26th 
 district, resigned, and Mr. Granger was elected in his 
 place. He remained in Congress until March 3d, 1843, 
 when he returned to his seat in Canandaigua, where he 
 continued to reside until his death, which took place in 
 August, 1868. 
 
 It would be quite impossible for the lover of art to 
 leave the room without pausing to admire the beautiful 
 portrait of Gideon Granger which hangs near that of 
 his father, whom we have just described. This painting 
 is excellent in its execution, and deeply interesting in 
 the truthful and vivid representation of an accom- 
 plished, high-toned, elegant gentleman and greatly be- 
 loved citizen. Such rare qualities in the original, en- 
 liven, deepen and enrich its colors, amalgamating them 
 in harmonious union. Gideon Granger was born at 
 
AETISTIC AND MENTAL PORTEAITS. 115 
 
 Canandaigua in 1820. He was liberally educated, re- 
 fined in his tastes, and pleasing in his conversation. It 
 is said he was one of the most elegant and easy con- 
 versationists in the graceful and enlightened circles in 
 which he moved. "When, in 1837, as the companion of 
 his father, then a member of Congress, he appeared at 
 Washington, he became a general favorite in its society — ■ 
 a society whose polished excellence has never been 
 equaled in that city, or in any city in the nation. At 
 home Gideon Granger was popular with all classes. In- 
 deed, it is not saying too much of him, that few men 
 were more universally beloved than he. Without any 
 effort, he won the hearts of men to a surprising degree. 
 He possessed a delicacy that instinctively shrank from 
 wounding the feelings of the humblest human being. 
 Those who knew him best could not, by any effort of 
 imagination, put an undeserved acrimonious speech into 
 his lips, any more than they can think of him under an 
 entirely different countenance. He possessed the only 
 true dignity, that which results from proposing, habitu- 
 ally, a high standard of feeling and action ; accord- 
 ingly the admiration that he gained was always tem- 
 pered with respect. He was one of the last men to be 
 approached with rude familiarity. He was a Chris- 
 tian in the true and highest sense of the word. He 
 went to the Mercy-Seat as one who was not a stranger 
 there. His acts of adoration discovered a mind pene- 
 trated by the majesty and purity of God ; but his con- 
 ceptions of these attributes were always tempered and 
 softened by divine benignity. 
 
 To live religiously he did not think himself called 
 to surrender the proper pursuits and gratifications of 
 
116 LAWYER AND CLIENT. 
 
 human nature. He believed that religion is in harmony 
 with intellectual improyement — with the pleasures of 
 imagination, and especially the kind affections. Hence, 
 instead of that narrow, contracted and repulsive char- 
 acter which is often identified with piety, his religion 
 was attractive, cheerful and lovely. This union of 
 strength and light in his sense of duty, gave singular 
 harmony to his character. His chief distinction was 
 not talent, although he had fine intellectual powers and 
 practicability, which, in usefulness, if not in splendor, 
 generally surpasses genius. Unlike his father, Gideon 
 Granger had no political ambition. Indeed, he disliked 
 politics, and held politicians in utter contempt. 
 
 Like his father in form and features, he was a model 
 of manly beauty. This was exhibited in elegant antithe- 
 sis of limb to limb, in easy mobility, and equipoise of 
 person so solid and full that it accorded with refinement 
 and intellectuality. In his portrait, to which we have 
 referred, his features bespeak the man, and exhibit in- 
 tellectual conceptions in the colors of life. Such was 
 Gideon Granger. 
 
 If our conceptions and desci-iption of his merits are 
 true, may we not say that in him we have found a 
 character whose blamelessness spares us the pains of 
 making deductions from its virtues ? Mr. Granger died 
 at Canandaigua, on the 1st of September, 1868, aged 
 forty-eight years. 
 
 There is a melancholy interest attached to the last 
 days of Francis Granger and his son. Within the space 
 of two days they were both taken from the world. The 
 grave of the father had not received its precious relics 
 
ARTISTIC AUD MENTAL POETEAITS. 117 
 
 before the tomb of the son opened to receive all that 
 death had left of him on earth. 
 
 In this room hangs another portrait that always 
 commands attention. It is a face full of character, elo- 
 quent expression and subtlety of thought, in which 
 mind and sentiment are plainly visible. It is a hand- 
 some face, though slighijly touched with that expression 
 of concentrated self-esteem, which, carried to excess, 
 renders a man of merit unpopular, and a man without 
 merit ridiculous. It is the face of a statesman and or- 
 ator, who reared his own monument — a monument that 
 will stand through all the ages that free government 
 and human equality shall exist. The nation whose 
 son he was, and whose commission he bore in her Sen- 
 ate-chamber will cherish tenderly his memory, and 
 point proudly to his name — a name which is at once 
 history and inspiration, for it is Stephen A. Douglas. 
 
 In his youth he was a student at Canandaigua 
 Academy. In her lyceum he displayed eloquence that 
 attracted general attention, and which has neyer been 
 forgotten. 
 
 The genius of the student, the fame and virtues of 
 the statesman and orator, endeared him to the people 
 of Ontario County, and they haye placed his portrait 
 among those of their own illustrious dead, hard by the 
 classic halls in which he drank at the fountains of 
 knowledge. 
 
A DUSKY ADVOCATE. 
 
 A Son of the Forest at the Bar — Red Jacket's Address to tbe 
 Jury in a Murder Case — His Temperance Address at Avon 
 Springs — Court Scene at Batavia. — An Anecdote — How a 
 Poet paid a Debt. 
 
 Though Sullivan and his invading host did not 
 march over the soil of Avon, giving it a claim to cen- 
 tennial honors, it is one of the historic places of Western 
 New York ; rich in memories of the past, blended with 
 legends of the red man and the deeds of the pioneer. 
 
 Among its earliest visitors was one renowned in 
 story and remembered in history — a battle-scarred 
 warrior — an orator imbued with nature's own eloquence — 
 the last of a race of intrepid chieftains who won a fame 
 exasrgerated to some extent — that would still have em- 
 bellished the age of chivalry. This was Eed Jacket. 
 He visited Avon to drink its -waters and to hunt the 
 wild deer on the banks of the Genesee. 
 
 It is related that an Indian of his tribe was indicted 
 and brought to trial at Oanandaigua for murder. Red 
 Jacket, assisted by that great lawyer, John C. Spencer, 
 then a young man, conducted his defense. The alleged 
 crime was committed when the prisoner was drunk. 
 
 Red Jacket, by permission of the court, addressed 
 
 the jury in behalf of the accused. His speech was. a 
 
 wonderful combination of strong common sense and 
 
 thrilling eloquence. Though at times his language was 
 
 [118] 
 
A DUSKY ADVOCATE. 119 
 
 stilted, after the manner of Indian oratory, there were 
 in it those touches of nature which send the words of 
 Burns home to the recesses of the heart. Though it 
 was not prodigal in learning, it was subtle, strong and 
 commensurate with the occasion. Fine strokes of 
 pathos were scattered amid its policy, its boldness, and 
 its native beauty. It was an appeal of a child of nature 
 standing between his friend and the gallows. It was 
 bright, clear and gushing from the unpolished rock — 
 powerful in its simplicity, touching in its deep earnest- 
 ness — a Toice out of the wilderness rolling over the 
 forum, pleading among towers of legal learning for the 
 life of a friend — a brother's voice, now tremulous in 
 sorrow, now urgent in entreaty, now loud in denouncing 
 the prosecution, and now ascending into high- wrought 
 reason, and with all it was effective, for the prisoner 
 was acquitted. He had the advantage, of course, of Mr. 
 Spencer's great legal learning to direct and guide him 
 through the trial. 
 
 After the trial Ked Jacket, accompanied by his 
 client, started on foot for their home near Buffalo. At 
 Avon they rested for the day, near what is now known 
 as Congress Spring. The chief gave a cup of its water 
 to his friend and bade him drink it. He complied, 
 taking a large draught into his mouth ; the next instant 
 his face evinced his dislike of the water. " Ugh! ugh! 
 bitter! sour! kill um! stink! give me whisk." Red 
 Jacket, with one of those grim smiles that often gave 
 point to his words, replied in his own language, " Yes, 
 bitter, sour, stinking, but not so bitter, sour and stink- 
 ing as is the fire-water yon love, for that goes into your 
 brain and kicks reason and goodness out of it, and puts 
 
120 LAWYER AND CLIENT. 
 
 a devil in its place, and then lie leads you around, a 
 crazy fool. He led you into jail and tried to have you 
 hung by the neck. Nov? you are yourself again. Tou 
 want to jjut more of that fire-water in your brain, so 
 that you can become a fool again. Drink medicine 
 water here, cold water at home, and let whisky alone, 
 and you will be a good Indian, and you will see no more 
 jails." 
 
 This was, perhaps, the first temperance address ever 
 delivered in Livingston county ; but pointed, well-direct- 
 ed and strong as it was, its author, it is said, like some 
 modern temperance lecturers, failed to practice what he 
 so eloquently advocated. 
 
 Avon was the home of that distinguished lawyer, 
 orator and legislator, George Hosmer. Among his con- 
 temporaries was the late Heman J. Redfield, of Batavia. 
 At the bar Hosmer and Redfield were frequently oppo- 
 nents. Hosmer's extensive practice often called him to 
 Batavia. He was a favorite of its able and learned bar, 
 and with the people wherever he went. 
 
 In those days one of the Judges of the Supreme Court 
 would go down to Batavia and the other county-seats, 
 and his arrival was a matter of great moment. The 
 sheriff of the county and his deputies, in full uniform, 
 the county clerk and members of the bar, would meet 
 him some distance out of town, and in procession escort 
 him to the court-house. It is said that the impressive dig- 
 nity and formality which prevailed during the trial of 
 caiises in those days, would contrast strangely with the 
 free and easy manner in which causes are tried now. 
 
 It is related that on one occasion Morgan Lewis, 
 then one of the justices of the supreme court, presided 
 
A DUSKT ADVOCATE. 121 
 
 at a Batavia circuit. One day a lawyer of the name of 
 Boot, from Buffalo, a witty, able, but somewhat intem- 
 perate lawyer, was arguing a case before the Judge, who 
 saw at a glance that he was in his cups. " Mr. Eoot," 
 said the judge, interrupting his argument, " take your 
 seat. I do not hesitate to say that you are drunk." 
 " Does your hon — hie — hie — honor say this on — hie— on 
 ma — hie, mature deliberation ?" said Eoot. "Yes, sir, 
 that is my decided opinion ; sit down, sir !" " Well, I 
 ob — hie — obey. But hie — per — hie permit mo to say, 
 that it's the only sensible opinion that your — hon, hie — 
 that your honor has pronounced at this term." His 
 honor ordered Eoot into the custody of the sheriff, who 
 kept him a prisoner until he was sober enough to appear 
 in court and ajDologize for his language, when he was dis- 
 charged. Hosmer, who was Boot's opi^onent in the 
 course of the argument that followed, was a little severe 
 on him. One of Boot's clients who resided at Avon, 
 had induced him to take a number of sheep at an ex- 
 travagant price, in payment for legal services, recom- 
 mending them to be of the Merino breed. But when 
 they were delivered they turned out to be small, coarse 
 wool, ill-looking sheep. During the term of court to 
 which I have alluded, Hosmer, Eoot, the judges, and a 
 large number of legal gentlemen were at dinner. 
 Hosmer was a man of small size and far from being 
 handsome. During the meal he called out to Boot, 
 "Mr. Boot," he said ; "Mr. Boot, by what rule do you 
 select Merino sheep !" "By the same rule that your 
 clients select a lawyer ; who take the smallest and the 
 ugliest-looking one they can find, and they are always 
 satisfied with you in that respect." 
 
 & 
 
122 LAWYER Airo CLIENT. 
 
 In the year 1834 Mr. Hosmer represented Livingston 
 county in the Assembly, distinguishing himself in the 
 legal debates which rendered that session of the Legisla- 
 ture so memorable. At this time Mr. Eedfield repre- 
 sented the 8th Senatorial District in the Senate. He 
 took his seat in that body January 1st, 1823. After a 
 successful but brief legal career, Mr. Eedfield left the 
 bar and became one of the most able and influential 
 political leaders in the State. He wielded a strong, 
 nervous pen, which gave expression to a well-stored, 
 versatile and logical mind. The history of the State, 
 particularly of Western New York, bears indubitable 
 evidence of his ability as a writer, speaker and legislator. 
 At home, where men are best known, where they are 
 weighed in the truest balance, he was regarded as a blame- 
 less, highly-esteemed citizen, adorning all the relations of 
 private life. We speak of him here, because of his 
 intimate relations with Mr. Hosmer. 
 
 W. H. 0. Hosmer, known as the Bard of Avon, was a 
 son of George Hosmer. As a poet, his fame is before 
 the world. He wrote much that is forgotten, but also 
 much that will perpetuate his name as the poet of the 
 Genesee valley and of Western -ISrew York. Enamored 
 of its delightful scenery — once the hunting-grounds of 
 a vanished race — of its dreamy but pleasing traditions, 
 he has invested its charming lakes, bounding streamlets, 
 bright rivers, lovely valleys and weird glens, with some- 
 thing of the interest which the pen of Irving has given 
 the " lordly Hudson " and its shores. If he was a better 
 poet and writer at the commencement of his career than 
 at the last, there are reasons for it which cannot be 
 mentioned here. His egotism was unbounded, but this 
 
A DUSKY ADVOCATE. 123 
 
 is a fault inherent in men conscious of extraordinary in- 
 tellectual powers, from Cicero down to many that could 
 be named in the present age. There was a vein of 
 humor in Hosmer that made him at times an aareeable 
 companion. Like most of those who court the Muses 
 and linger around Parnassus, Hosmer was poor. He 
 happened one time to be in the city of New York, 
 gi-eatly in need of funds to extricate him from pressing 
 pecuniary embarrassments. While studying how he 
 could obtain relief he happened to meet the late Colonel 
 Hathaway, a brilliant and distinguished lawyer of 
 Elmira, N". Y., a man of wealth, of cultivated taste, and 
 a patron of literary men. Hosmer had known him 
 many years, had often applied to him in his embarrass- 
 ment for aid and never in vain. " Colonel Hathaway, 
 I am delighted to see yoir," said the poet, shaking him 
 warmly by the hand. "I am very happy to see you, 
 Mr. Hosmer ; how is it with you and the republic of 
 letters?" asked the colonel. " You know. Colonel Hath- 
 away, that all republics are ungrateful, but the republic 
 of letters is especially so just now. " "I am sorry to hear 
 this ; what is the particular cause of all this ?" asked 
 Hathaway. " Oh, it's the old story over again. I am 
 sorely in want of a sum of money just now ; indeed, I 
 must have it, and as I always give my friends the pref- 
 erence in these matters I desire you to loan me the 
 sum I need, which is just one hundred and fifty dollars." 
 As soon as the money could be counted Hosmer was re- 
 joicing in its possession. With many thanks and 
 promises of early payment he took his leave. 
 
 Time passed on, a year rolled away, and the event 
 had passed from Hathaway's mind, when one day he re- 
 
124 LAWYER AND CLIENT. 
 
 ceived by express a box of considerable size, quite heavy 
 and apparently well filled ! Eemoving the cover he saw 
 that it contained a large number of neatly-bound books, 
 which, ujion examination, proved to be the recently 
 published works of the poet. Taking them from the 
 box, Mr. Hathaway discovered the following lines neatly 
 written on the inside : 
 
 ' ' Poets are birds of various prey, 
 Ye Godsl why pounce on Hathaway ?" 
 
 This was enough ; the lender was generously paid. 
 "The two lines in the box," as he afterwards remarked, 
 "paid the interest compounded." 
 
EGBERT EMMET, THE LAWYER, PATRIOT 
 AND MARTYR. 
 
 Curran, the Great Irish Lawyer and Orator — Emmet's Plan for 
 the Emancipation of Ireland — Its Failure— Assassination of 
 the Chief Justice — Strange Presentiment — Emmet's Arrest 
 and Escape — His Strong Aflfection for Sarah Curi-an 
 ardently Returned — His Re-arrest and Trial — Thrilling 
 Speech Before Sentenced to Die — His Execution — Miss 
 Curran Faithful to the Last — Her Death — A Broken Heart. 
 
 RoBEET Emmet, so celebrated in history, over whose 
 tragic fate so many tears have been shed, whose dying 
 add]-ess has long been the admiration of the lovers of 
 oratory, was born at Dublin, September 20, 1780. 
 
 At an early age he entered Trinity College, where he 
 gained the highest honors for scholarly attainments and 
 for the high order of eloquence exhibited by him. But 
 the open manner in which he avowed his republican 
 principles, caused his expulsion from college a few 
 months before he expected to graduate. Immediately 
 after this event he commenced the study of law, and in 
 due time he was called to the bar. He rose rapidly to 
 eminence, taking the highest position among the peer- 
 less orators of his country, one of whom said of him : 
 "Were I to number, indeed, the men among all I have 
 ever known who seemed to me to combine in the great- 
 est degree pure moral worth with intellectual power, I 
 should among the highest of the class place Robert 
 Emmet. Wholly free from the follies and frailties of 
 
 [125] 
 
126 LAWYER AND CLIENT. 
 
 youth, though how capable he was of the most devoted 
 passion events afterwards proved — the pursuit of science, 
 in which he admirably distinguished himself, seems at 
 the time the only object that at all divided his attention 
 with his enthusiasm for Irish freedom, which in him 
 was an hereditary as well as a natural feeling." 
 
 Like his brother, Thomas Addis Emmet, while en- 
 gaged in a highly honorable and lucrative practice, 
 joined the order of United Irishmen, and became a 
 prominent actor in the bloody scenes of 1798, and 
 only escaped the scafEold by leaving his country and 
 finding an asylum in other lands. 
 
 During the absence of Emmet a union between Ire- 
 land and England was effected, which, though intended 
 to prevent any future revolt of the Irish, only deepened 
 their resentment against England. The measure was 
 first proposed to the Irish parliament on the 5th of 
 February, 1800, in a message from the Lord Lieutenant. 
 Though it was sustained by Lord Castlereagh in an 
 argument of surpassing power, the excitement that fol- 
 lowed baffles description. The indignation of the 
 people knew no bounds. The populace of Dublin rose 
 en masse, and tumult and bloodshed followed. The 
 strong arm of the- military power alone drove the people 
 to subjection. After a stormy debate in the Lower 
 House, one hundred and fifty-eight members recorded 
 their votes for it and one hundred and fifteen voted 
 against it. In the Irish House of Lords the measure 
 passed by a vote of seventy-five against twenty-six. But 
 so fierce was the popular opposition to it that the bill 
 favoring the Union did not become a law until the 
 2nd of July, 1801. In August following the existence 
 
EOBEET EMMET. 127 
 
 of the Irish parliament ceased, and England and Ire- 
 land became one nation. But the Irish people never 
 favored the Union. They were compelled to submit to 
 it, though with turbulent disapprobation, by the strong 
 hand of power. 
 
 To none was the union more repugnant than to 
 Eobert Emmet and his friends. It increased his hatred 
 for England, and accelerated his efforts to arouse his 
 countrymen to an armed opposition to it. 
 
 After parting with his brother at Brussels, he secretly 
 visited Dublin, rekindling there the patriotic fires that 
 had been quenched in blood, reorganizing secret bands 
 of armed men in different parts of the city and adjoin- 
 ing country, establishing depots for ammunition, fire- 
 arms, pikes, and swords, making preparations for a 
 general rising throughout Ireland. He was strongly 
 and ably aided by Eussell, Dowdall and Coigley, men of 
 high standing, experienced, gallant soldiers and devoted 
 patriots. Eobert Emmet arrived in Dublin in Decem- 
 ber, 1802. So rapidly did he and his associates mature 
 their plans of revolt, that the 23d of June following 
 was fixed for opening the contest. It was their plan to 
 seize the castle and arsenal, of Dublin, take possession 
 of the city, and proclaim the independence of their 
 country. They exjaected after this that the entire 
 Irish loeople would unite with them in expelling the 
 English forever from their country, and in establish- 
 ing its independence. But they were surrounded, as 
 the patriots of 1798 were, by spies and informers. 
 Notwithstanding the secrecy which governed their 
 movements, information had been conveyed to the 
 government a few days before the outbreak, of 
 
128 LAWYER AND CLIENT. 
 
 threatening assemblages of people ; other indications 
 tended to awaken suspicion that a general rising, as it 
 was termed, was in agitation. On Saturday, June 23, 
 1803, toward evening, the populace began to assemble 
 in vast numbers in St. James street, and its neighbor- 
 hood, in Dublin, without any visible arrangement or 
 discipline. To arm the body thus collected pikes were 
 deliberately placed along the sides of the streets for the 
 accommodation of all who might choose to equip them- 
 selves. About nine o'clock the concerted signal that 
 all was in readiness was given by a number of men 
 riding furiously through the principal streets ; but 
 general alarm was not excited until Clark, the proprie- 
 tor of a large manufactory in the neighborhood of 
 Dublin, an informer, who had that very afternoon 
 apprised the government of the intention of Emmet 
 and his friends, was shot and dangerously wounded. 
 At this time a cannon, which had been in readiness for 
 the purpose, was discharged, and a sky-rocket sent up at 
 the same time, which was observed throughout the 
 whole city. In a moment all was excitement ; drums 
 beat to arms ; soldiers moved rapidly through the 
 streets, and the horrors of battle commenced. Emmet, 
 at the head of a chosen band, now sallied forth from 
 his headquarters in Marshalsea lane, and led his 
 followers to .battle. Before they had reached the end of 
 the lane in which they were assembled, one of the party 
 discharged his musket at Colonel Brown, a gentleman 
 universally esteemed by all jiarties, who was peacefully 
 passing along the street. Unhappily the ball with 
 which it was loaded took fatal effect. The attack of the 
 insurgents was so badly managed, assuming the appear- 
 
KOUEKT EMMET. 129 
 
 ance of a wild, tumultuous mob instead of a disciplined 
 array, so few of the Irish joined in it, compared with 
 what Emmet had expected, that when they were at- 
 tacked by the government troops they were put to flight 
 after a few volleys of musketry had been poured into 
 them, and the insurrection was brought to an inglorious 
 end. 
 
 One of the unfortunate and deplorable events of this 
 rebellion was the horrible assassination of the Chief 
 Justice of Ireland, Lord Viscount Kilwarden. This 
 nobleman was greatly beloved and respected for his 
 talents and his judicial accomplishments ; but a singular 
 presentiment followed him for years. During the fear- 
 ful scenes of 1798 he believed himself destined to 
 assassination. When that awful drama closed his 
 friends hoped that he would be released from his 
 perpetual apprehension, but they were mistaken ; the 
 fear of being murdered followed him like a threatening 
 specter, though there was no apparent cause for his 
 alarm. On the fatal 33d of June he retired to his 
 country-seat, four miles from the city, after a week's 
 close judicial labor. Hardly had he reached his retreat 
 when he received intelligence of the attack of the Irish 
 under Emmet. Ordering his carriage, accompanied by 
 his daughter and his nephew, Eev. Eichard Wolf, he 
 returned to Dublin. What his lordship's object was in 
 thns throwing himself into the very vortex of danger 
 and death has never been known. Perhaps he believed 
 that be would be less exposed to danger in the city, pro- 
 tected by the royal troops, than at his isolated country- 
 seat. His carriage entered Thomas street immediately 
 after the attack commenced ; it was at once surrounded 
 
130 LAWYEK AND CLIENT. 
 
 by an enraged and furious mob, armed to the teetli, in- 
 tent ou sltinghter. Lord Kilwardcn immediately an- 
 nounced his name and official position. As this was 
 disregarded, he prayed for mercy in the most pathetic 
 manner ; but disregarding his prayer, the supplications 
 of his nephew, and the piercing shrieks of his daughter, 
 an Irishman thrust a pike through his body. "Wolf met 
 the same fate. Both gentlemen were dragged from the 
 carriage to the ground, where they were dispatched with 
 innumerable wounds. The lady, however, was unharmed, 
 and permitted to pass through the ranks of the insur- 
 gents to a place of safety. 
 
 The murder of Colonel Brown and Lord Kilwarden, 
 with the disordered and undisciplined movements of his 
 troops, so disgusted Emmet that he left the scene and 
 returned to his quarters, where he was arrested for high 
 treason. 
 
 Nothing could exceed the alarm and consternation 
 which this insurrection created. Notices were issued 
 by the Lord Mayor requiring all the inhabitants, except 
 those connected with the military, to keep within doors 
 after eight o'clock in the evening. Bills suspending 
 the habeas corpus act and placing Ireland binder martial 
 law were immediately passed ; preparations were made 
 for sending large bodies of troops from England, and 
 every precaution was taken to prevent the spread of the 
 revolt. The Eomau Catholics of the city, headed by 
 Lord Pingal, attested their loyalty and patriotism in the 
 most open and decided manner. In expressing their 
 deep regret and sorrow for the enormities and outrages 
 of the fatal 23rd of June, they tendered assistance to 
 the government against any similar outbreak. , 
 
ROBERT EMMET. liil 
 
 Eobert Emmet after his arrest made his escape and 
 fled to the "Wicklow mountains, from whence he might 
 easily have escaped to France, and, like his illustrious 
 brother, Thomas Addis Emmet, found a home in 
 America. At that time John Philpot Curran, the great 
 Irish lawyer and orator, was in the plenitude of his 
 fame. He was born at ISTewmarket, in the county of 
 Cork, Ireland, July 24:th, 1750. At the age of nineteen 
 he graduated at the University of Dublin, removed to 
 London, and commenced the study of law in Middle 
 _ Temple. He was in due time, called to the bar, at once 
 entered on a successful and brilliant practice, attaining 
 a high judicial position. His education was that of a 
 lawyer, his feelings, sentiments and ambition, were those 
 of the lawyer, and fitted him pre-eminently to act on 
 the minds of ajury. For over twenty years he had un- 
 rivaled mastery over the Irish bar. His speeches in 
 defense of the Irish patriots brought to trial for participa- 
 tion in the great rebellion of 1798 — made at the hazard 
 of his own life — were the most splendid exhibitions of 
 courage, magnanimity and eloquence ever known at any 
 bar. Often, when addressing the jury in behalf of his 
 unfortunate countrymen on trial for their lives, for re- 
 bellion against the English government, the court- 
 house would be thronged with English troops armed to 
 the teeth. They were placed there to intimidate the 
 jury, Curran and the prisoner. 
 
 " What is that ? " he exclaimed one day, as a clash 
 of arms was heard from the soldiers at the close of one 
 of his bold and terrible denunciations of the course pur- 
 sued by the British government. An officer who stood 
 near seemed, from his looks and gestures, about to 
 
132 LAWYEE AND CLIENT. 
 
 strike Iiim wibli his sword, when the intrepid orator, 
 fixing his keen black eye upon him, sternly said, " You 
 may assassinate, hut you cannot intimidate me" and 
 then proceeded in a bolder and more defiant strain than 
 ever. ' ' They were not mere clients for whom he jDleaded; 
 they were friends, for whose safety he would have 
 coined his blood ; they were patriots, who struck for 
 their country and failed." 
 
 Curran's power lay in the variety and strength of his 
 emotions. " He delighted a jury by his wit ; he turned 
 the court-room into a scene of the broadest farce by his 
 humor, mimicry and fuu ; he made it a place for tears, 
 by a tenderness and pathos which subdued every heart ; 
 he poured out invective like a stream of lava, and in- 
 flamed the minds of his countrymen to madness by the 
 recital of their wrongs." 
 
 Lord Byron thus described him : 
 "Curran! Curran's the man who struck me most. 
 Such imagination! there was never anything like it. 
 His published speeclies — his published life, give no idea 
 of the man — none at all. He is a perfect machine of 
 intellect and imagination. As some one has said of 
 Piron, he is an epigrammatic machine. I have heard 
 him speak more poetry in common conversation than I 
 ever saw written, though I have only seen him occasion- 
 ally. I saw him presented to Madame de Stael, at the 
 house of Sir James McKintosh. It was the confluence 
 between the Rhine and the Seine ; and they were both 
 so homely that I wondered how the two best intellects 
 of France and Ireland could have respectively taken 
 their residence in two such plain persons." 
 
 As I have already said, Robert Emmet had deter- 
 
JSOBEKT EMMET. 133 
 
 mined to leave Ireland forever and find a home in 
 America. But a tie stronger than the love of life, all 
 that is alluring and beautifiil in love's young dream, 
 bound him bo his native city. There was one whom he 
 loved with all the fervency of his passionate nature. 
 " Like the god of the Hindoo, she had appeared, and 
 lo, there was to him a new world." And his love was 
 returned with all the warmth, truth, and confidence of 
 a high-souled, gifted and beautiful woman. This was 
 Sarah Ourran, the daughter of the illustrious orator I 
 have described. 
 
 And Sarali was the idol of her father, the inheritor of 
 much of his intellect. To her, he was an object of such 
 deep filial affection and of such reverence, that she 
 might have applied to him the language of Theodosia 
 Burr to her father, "My vanity would be greater," 
 said she, "if I had not been placed so near you, and 
 yet my pride is our relationship. I had rather not live 
 than not be the daughter of such a man." 
 
 Such was Curran ; such was his daughter. It is not 
 strange that she should inspire a man like Eobert Emmet 
 with a love so intense that he left his retreat and 
 hastened to Dublin, determined to see her once more 
 before leaving Ireland forever. And this he did. In 
 deep disguise he entered the city, sought and obtained 
 an interview with her. But what pen can describe the 
 ecstasy — the hopes, the fears of this meeting? Each 
 felt that they met on the brink of fate — felt "that they 
 must part, it might be for years, and it might be for- 
 ever." 
 
 This interview was repeated, and Emmet, instead of 
 leaving the city as he came, undiscovered and undetected. 
 
134 LAWYER A^D CLIENT. 
 
 lingered near the object of his affections until at last he 
 was discovered by the authorities. He was arrested and 
 committed to prison, where he remained until Septem- 
 ber 20th, 1803, when he was brought to trial under an 
 indictment for higli treason. 
 
 He conducted his own defense, exhibiting the most 
 consummate skill, coolness and intrepidity during the 
 whole trial. Able, experienced, sagacious and renowned 
 lawyers regarded the defense he made, the learning and 
 erudition he exhibited, the astonishing oratorical powers 
 he displayed, with wonder and admiration ; and yet he 
 "Was only twenty-three years of age. "No two indi- 
 viduals," said one of the most distinguished spectators 
 present, "could be more unlike each other than was 
 that same youth to himself, before rising to address the 
 Jury and after ; the brow that appeared inanimate, al- 
 most drooping, at once revealed all the consciousness of 
 intellectual power ; the whole countenance and figure of 
 the speaker assumed a change as of one suddenly in- 
 spired. The efiect his oratory produced, as well from 
 its own exciting power, as from the susceptibility with 
 which the audience caught up every allusion to passing 
 events, was such as to attract the earnest attention of 
 all who listened to him." 
 
 Among the most interested spectators present was 
 Ourran. But he looked upon the trial only from the 
 common standpoint of his countrymen, regarding the 
 struggles of a patriot youth of the highest promise de- 
 fending his own life ; for the attachment between his 
 daughter and the brilliant young prisoner was then un- 
 known to him. But Robert Emmet's conviction was al- 
 most a matter of course. His trial and matchless de- 
 
EOBEET EMMET. 135 
 
 fense were a work of supererogation. He was found 
 guilty and sentenced to die. 
 
 Before the deatli sentence was pronounced, lie was 
 asked, by the judge, what he had to say why sentence 
 of death should not be pronounced upon him. Though 
 fully aware that whatever he might say would be only 
 a cruel privilege of speaking on the brink of the grave, 
 he arose and delivered a speech that of itself gave im- 
 mortality to his name, placing it among the illustrious 
 orators of Ireland. 
 
 He poured into the ears of the callous judge, from 
 whom he was about to receive his sentence, a history of 
 his own, and his country's wrongs, so full of lofty, 
 yet fiery denunciation, and withering invective, so re- 
 plete with patriotism, that he seemed the avenging 
 genius of those wrongs — an accusing spirit speaking 
 from the grave. He took an appeal to the future in be- 
 half of his country, with such prophetic faith, in a man- 
 ner so dauntless, that he was often interrupted by the 
 judge, and reprimanded for proclaiming treasonable 
 sentiments. When thus interrupted, with impressive 
 dignity and startling emphasis, he hurled back upon 
 the judge the sharpest recrimination. " My lords," 
 said he, when admonished that time was passing, 
 " My lords, you seem impatient for th'e sacrifice. The 
 blood for which you thirst is not congealed by the 
 artificial terrors that surround your victim ; it circu- 
 lates warmly and unruffled through the channels which 
 God created for noble purposes, but which you are bent 
 to destroy for purposes so grievous that they cry to 
 heaven. Be ye yet patient. I have but a few more 
 words to say. I am going to my cold and silent grave ; 
 
136 LAWTEK AND CLIENT. 
 
 my lamp of life is nearly extinguislied ; my race is run ; 
 tliG grave opens to receive me, and I sink into its bosom. 
 I have but one request to ask at my departure from this 
 world. It is the charity of its silence. Let no man 
 write my ei^itaph ; for, as no man who knows my mo- 
 tives dare now vindicate them, let not prejudice nor 
 ignorance asperse them. Let them and me repose in 
 obscurity and peace, and my tomb remain uninscribed 
 until other times and other men can do justice to my 
 character ; when my country takes her place among 
 the nations of the earth, then, and not till then, let my 
 epitaph be written. I have done." 
 
 jSTo epitaph has ever yet been written upon his tomb. 
 Will there ever come a time when, in obedience to his 
 last dying words, one can be written? But he needs no 
 memorial words carved in marble to perpetuate his 
 name and fame. For in every beautiful field, in every 
 rocky glen, in every city, town and hamlet of the green 
 island where he sleeps, his name is reverentially breathed, 
 responsive to history, poetry and song, that perpetuates 
 it not only there, but in every part of the world where 
 eloquence is admired and patriotism is venerated. 
 
 Within a very few hours after receiving his sentence 
 Eobert Emmet was executed on a gallows erected in 
 Thomas street, Dublin. Many of his comjDanions in 
 arms, at different times, met the same fate in the same 
 place. 
 
 It was not until after Emmet's conviction that Mr. 
 Curran discovered the attachment between him and his 
 daughter. By accident some of their correspondence 
 came into his possession. The discovery filled him with 
 sorrow, for he knew her constancy, her .sensitive and af- 
 
EOBEET EMMET. 137 
 
 fectionate nature, and he knew the effect which the 
 death of her lover would have upon her. 
 
 Two of her letters, written after Robert's condem- 
 nation, made a singular impression upon liim. By 
 them ne learned how fully and how trutnf ally his beauti- 
 ful, his high-soLxled daughter had given her heart of 
 hearts to the youth so soon to die'upon the scaffold — to 
 her, she said, now doubly dear, as something sacred, 
 the divinity of her soul, about to be transmitted to an- 
 other world, "from whence," she continued, "he will 
 never again come to me, though I shall go to him, my 
 own glorious, ever-loved Emmet ! When you are no 
 more I, too, shall be done with life." 
 
 These letters weighed heavily upon Mr. Curran's 
 mind : he never forgot them until that fearful eclipse 
 of his reason, from which he never recovered. 
 
 A few hours before Emmet's execution, Ourran re- 
 ceived a letter from him, in which he related the whole 
 history of his attachment to Sarah. "I would rather," 
 he said, "have the affections of your daughter in the 
 wilderness of America, depending upon my own hands 
 for subsistence, than to occupy the most exalted station 
 earth could give." 
 
 To Richard Ourran, Sarah's only brother, he wrote 
 as follows : 
 
 " Oh, Richard ! I have no excuse to offer for the 
 love I bore your matchless sister, but that I intended 
 as much happiness for her as the most ardent love could 
 have given her. I did not love her with a wild, un- 
 founded, transient passion ; but it was an attachment 
 increasing every hour, founded on admiration of the 
 purity of her mind, respect for her talents and her amia- 
 
188 LAWTEE AND CLIENT. 
 
 ble, loviug nature. My loyed, my adored Sarah ! It 
 was not thus that I thought to haye requited your af- 
 fections ! I had hojDed to be the object to which they 
 might cling through a long and happy life ; but a rude 
 blast has destroyed all our hopes, and her affections 
 have fallen on a grave." 
 
 A few minutes after this touching letter was written 
 Robert Emmet was a corpse, and Sarah Curran never 
 forgot him — never recovered from the terrible blow 
 which his death gave her. As time wore away her sor- 
 row increased — " time, that wears out the deepest trace 
 of agony, passed over her in vain." Though he had 
 gone to the grave, she felt that death could not destroy 
 her love for him. 
 
 Beautifully has it been said that there is something 
 in nature connecting us with the loved and the lost — 
 " a flower, a breath of air, a leaf, a tone of music, sum- 
 mer's eve, striking the electric chain wherewith we are 
 bound," bringing all the past before us. So it was with 
 Sarah Curran. Everything around her perpetuated the 
 memory of her martyred hero, and kept alive an afEec- 
 tion which she felt she could carry into eternity— one 
 that she had never blushed to confess to her God. It 
 was the true type of the beautiful, though dark, fable of 
 Eros and Psyche ; it was, in truth, the soul sleeping in 
 the arms of unforgotten love." 
 
 They bore her to Italy, hoping that the buoyant air 
 of soft Campanian skies would restore the bloom to her 
 cheek and elasticity to her step. But there, in that 
 delicious clime, "where the air brings sweet messages 
 from the violet and the orange blossom," memory car- 
 ried her back to Ireland; to the days when Emmet was 
 
EOBEET EMMET. 139 
 
 by her side; to Ms neglected grave; aud slowly, softly, 
 gently "she glided to the tomb. She did not die (die 
 is too harsh a -word), she drooped away and glided into 
 heaven." 
 
 Thus died Eobert Emmet, thus died Sarah Ourran; 
 one blow sent both to the grave. Their history is in- 
 vested with much that resembles Action ; but alas! it is 
 all too true ; it is but one of the tragic incidents con- 
 nected with the oft-repeated struggle of Ireland for 
 freedom. 
 
A YOUISTG LAWYER'S TILT WITH A LEGAL 
 BULL-DOG. 
 
 A Distinguished Lawyer's First Case — He meets a Legal Bull- 
 dog — Conceit, Igoorance and Impudence rebuked — Kam- 
 pant Speech of a Pettifogger — Ancient Lights. 
 
 One day, not long before the late Samuel G. 
 Hathaway, of Elmira, was called to the bar, while he 
 was on the way from Ithaca to the residence of his 
 father in Cortland county, he stopped at McLain, a 
 small village on his route, for dinner. The large num- 
 ber of people gathered in and about the hotel at which 
 he stopped convinced him that some matter of extra- 
 ordinary public interest was proceeding. The landlord 
 informed him that two young men were about to be 
 tried before a Court of Special Session's — which, in 
 those days, consisted of three justices of the peace and 
 a jury — ^for an aggravated assault and battery. 
 
 After dinner, while seated by the bar-room fire, his 
 attention was directed to the prisoners, who were 
 lamenting the absence of their counsel. The hour for 
 the trial had come, and the court was about to organ- 
 ize. To intensify their troubles, word was brought that 
 their lawyer had been taken with a sudden and serious 
 illness and could not attend the trial. Here, indeed, 
 was a dilemma. They were about to be tried for an 
 aggravated crime, with no counsel to assist them ; what 
 could they do? Nor was this all ; they were opposed 
 by a shrewd, brow-beating, ignorant but glib-tongued 
 pettifogger, who could set his mouth going, go away 
 [140] 
 
TILT WITH A LEGAL BULL-DO&. 141 
 
 and leave it for an hour, return and find it still wagging 
 with an accelerated motion — could talk about subjects 
 of which he was utterly ignorant as readily as of those 
 he understood — all the while ruthlessly slanghtering 
 his native language. He was, moreover, as egotistical 
 and abusive as he was ignorant. Hence he was a 
 terror to witnesses and suitors whom he opposed. To 
 be turned over, without protection, to the tender mer- 
 cies of this pettifogging bnll-dog was indeed a dreadful 
 fate. At length the attention of young Hathaway was 
 directed to a constable in attendance, who, in a low 
 voice, was engaged in an animated conversation with 
 the prisoners. From the manner of the speakers 
 Hathaway was sure that he was the object of their dis- 
 cussion. Though intending that what they were saying 
 should be heard only by themselves, so exciting was 
 their subject that it caused them to raise their voices to 
 a higher key than they were aware,- and the young 
 man could not avoid listening to the following : 
 
 "He ain't a young minister, that's sartin ; for he 
 ain't got that Bible face on him which young as well 
 as old ministers always have. He ain't a young doctor, 
 for he ain't got that wise look which young pillgarlicks 
 always have. If he didn't look so confounded slick and 
 had a little more cheek and brass about him, I'd swear 
 he was a young lawyer ; and if he is, maybe he might 
 turn in and help you," said the constable. 
 
 " I am afraid ' Old Jurisprudence,' who is to try the 
 case against us, would swallow him at one mouthful; 
 but we've got to get somebody to help us, and I'm going 
 to dee what there is of him." Accordingly he walked 
 up to young Hathaway, saying : 
 
142 LAWTEE A2^D CLIENT. 
 
 " See here, ain't you a lawyer or some such sort of 
 chap?" 
 
 "No, I am only ^ law student," was the reply. 
 
 "Have you been a law student long enough to know 
 anything about trying a lawsuit when there is a regu- 
 lar meat-axe on the other side ?" 
 
 "I have been a student several years; have seen 
 many smits tried and have tried some cases in justices' 
 court. But do you use meat-axes in courts here?" 
 
 " Well, we've got a walking meat-axe — a two-legged 
 bull-dog — after us here, and if we don't have help we 
 shall soon be playing checkers with our noses in Ithaca 
 Jail," said one of the prisoners. 
 
 " I don't see how I can help you," said Hathaway. 
 
 " Why, you must turn in and help us out of the 
 claws of ' Old Jurisprudence,' as we call old Bates, the 
 pettifogger against us. Come, say you'll take hold and 
 give him Jesse. We'll come down with the cash." 
 
 " I suppose you are guilty by the looks of the com- 
 plainant. His face looks as though it had been under 
 a trip-hammer, I suppose you lost your temper and 
 pounded him without mercy. But at any rate I have 
 not had sufficient experience to try a cause like this. 
 Besides, I am traveling and must be on my way." 
 
 " I'll tell you the case, and then you can judge 
 whether we ought to be punished or not. You see, the 
 complainant here is a hard customer. He has kept 
 coming on to our land, cutting and slashing timber Just 
 as he pleased, though we've forbid him time and time 
 aguin. Yesterday he was on there again with his axe, 
 and Jim, my brother here, told him if he didn't get off, 
 and pretty lively too, he'd help him off. At that the 
 
TILT WITH A LEGAL BULL-DOG. 143 
 
 fellow came at him with his axe, and if I hadn't inter- 
 fered it would have been all up with Jim. But before 
 I knew it he fetched me one with the side of his axe 
 which sent me kiting. Then I gathered up and got a 
 lucky blow in that gave me a good start. At it we 
 went, and the afEair ended in the fellow's getting as 
 badly licked as any man ever was. When I was through 
 with him his eyes had a dark blanket over them. His 
 face looked as though a loaf of rye and Indian bread 
 had taken its place. Now, do you think we are to 
 blame ?" 
 
 " The man is badly punisheiJ, but, if your story is 
 true, I think you ought not to be found guilty." 
 
 " The story is as true as preaching, and now turn 
 in and help us. Come, say you will. We don't want to 
 go to jail for giving that ugly cuss what he deserved." 
 
 Among the distinguishing features of Hathaway's 
 character was his sympathy for persons in trouble. 
 His whole life was embellished by acts of benevolence, 
 known to none except himself and the objects of them. 
 To this trait were allied talents of a high order and wit 
 as polished and as keen as a Damascus blade. 
 
 The humorous and apparently honest relation 
 which had been given of the case amused and interested 
 him, and induced him to undertake the defense of the 
 young men, unprepared as he was. 
 
 It was soon announced that the court was ready to 
 proceed. The trial took place in the large hall in the 
 hotel, which was crowded with people. With consider- 
 able diflBculty the young lawyer made his way through 
 the crowd to the large table at which sat the three 
 justices and Bates, the pettifogger. 
 
144 LAWYEK AND CIENT. 
 
 The prisoners took seats near tlieir counsel. Ad- 
 dressing the court, he said : "If your honors please, I 
 appear here for the defense. We are ready to proceed 
 with the trial." 
 
 The appearance of one so young in a case so impor- 
 tant, with a dreaded legal bullyfor his opponent, greatly 
 surprised the court, jury and spectators. The pettifog- 
 ger eyed him with a sort of threatening scowl, which 
 plainly said, " I'll make short work with you." 
 
 "Where do you practice, young man?" he gruffly 
 asked. 
 
 " I'm not in practice at all. I am a student at 
 law." 
 
 " Oh, you are a young law student, are you? I s'pose 
 you might as well say you are green, too. Don't know 
 much about law neither," said the pettifogger, giving 
 the jury a knowing wink. 
 
 " Are you ready to proceed, sir ?" asked Hathaway, 
 taking no notice of this insulting remark. 
 
 " Of course I am, and you'll find that out too, soon; 
 we'll have your clients in jail, and maybe you, too." 
 
 "I don't think people in this country are particular 
 about putting rascals in jail," said Hathaway. 
 
 "Why, sir, what do you mean by that?" asked 
 Bates, savagely. 
 
 " Because you are not there," was the quiet reply, 
 followed by roars of laughter. 
 
 This witty turn set Hathaway right with the crowd, 
 teaching " Old Jurisprudence " that his young opponent 
 carried heavier guns than he supposed. From that 
 time until the close of the trial he was quite sparing of 
 his abuse. 
 
TILT WITH A LEGAL BTJLL-DOG. 145 
 
 The jury was sworn, the counsel for the prosecution 
 arose, and, assuming a most important air, opened the 
 case in the following moTing and animated manner : 
 
 " Gentlemen of the jury : This is one of the most im- 
 portant and ohstetrical cases that I ever in all my large 
 practice undertook to manage. In this I think you 
 will agree with me. It is a case that touches the heart, 
 and if you will look at my client yoi^'U say it's a case of 
 the head — of a broken and a contrite head — a case of 
 the eyes, of braised, bunged, and awfully punched eyes, 
 and therefore an optical case! Gentlemen, in tliis free 
 and enlightened- country ain't a man a right to his eye- 
 sight ? I reckon he has. It's one of his inestimable 
 rights, to use the language of the Declaration of In- 
 dependence. Besides, that great artist, Blackstone, 
 says he has. There is authority for you, gentlemen, 
 that is so pregnable, pregmatic and firm that this young 
 sprig of the law can't get around it. What else does 
 Mr. Blackstone say ? Why, he says that one has no 
 business to interfere with the ancient lights of another; 
 and yet these black-hearted, bloody-handed, diabolical 
 butchers, with malice preface — as the law calls it — have 
 deprived my client of both his ancient lights— haven't 
 left him even a cellar window to look out of — have 
 licked him as blind as a beetle, mauled his face till it 
 looks like a smoked ham half eaten up by rats.; and if 
 that ain't depriving a man of his ancient lights, accord- 
 ing to Blackstone, then I don't know much about law. 
 What does this young legal cub know about these 
 solemn things ? He's just come out of his mother's 
 bandbox. What does he know or care about broken 
 and contrite heads, punched-out eyes, and black-balled 
 10 
 
146 LAWYER AND CLIENT. 
 
 faces ? Young as he is, he's as cruel as the graye, and 
 will tell how such bhings are all right, but you won't 
 believe him, no you won't ! 
 
 " Gentlemen, will you encourage this pugilarious 
 spirit ? No, you won't. How long will your eyes last, 
 I should like to know, if you do ? Look at them fellers, 
 those red-mouthed, beastly wretches, there, looking for 
 all the world as though they'd be happy if they could 
 only take a claw at your eyes ! See how boldly they set 
 there confounding you and glaring savagely at me, all 
 because they think that slick-looking chap is going to 
 rise like a young lion out of the thicket of Jordan and 
 pry them out of their diabolism ! Gentlemen, they 
 can't do it ; he can't pry out one side of them. 
 
 "We are going to prove to you, gentlemen, that 
 these defendants, with hellish fury, without any cause 
 • — pitched into my client, broke his head, punched his 
 eyes until he is as blind as a beetle, closing them up as 
 tight as the shutters to a broken-down grocery ; de- 
 prived him of his ancient lights, and then tumbled him 
 over the fence into a mudhole and made him look like 
 a walking brick-yard. Now, gentlemen, I'm after these 
 cruel, barbaristic wretches, and you'll gloriously sustain 
 these most praiseworthy efforts by your verdict." 
 
 Having closed this truly moving speech, the counsel 
 took his seat with an air which plainly showed that he 
 believed he had made an eloquent and powerful effort. 
 
 The complainant, who bore upon his face the evi- 
 dence of severe punishment, was the first witness called 
 for the people. On his direct examination he made a 
 very clear case of an unjustifiable and savage assault 
 and battery against the defendants, making himself the 
 
TILT WITH A LEGAL BULL DOG. 147 
 
 most meek, innocent and injured being in the world 
 and the defendants rapacious, revengeful, blood-thirsty 
 wretches. 
 
 Hathaway conducted the cross-examination with an 
 intuitive knowledge of that "thumb-screw of the law " 
 for which he was afterwards distinguished at the bar. 
 Step by step he led the witness unconsciously along to 
 the desired point ; with much ingenuity he drew from 
 him the fact that with a deadly weapon he began a 
 dangerous attack upon the prisoners, and finally, that 
 he himself was the first aggressor, injuriously trespass- 
 ing upon the lands of the defendants. His cross- 
 examination was a complete success. "When it was 
 concluded it was evident that the prosecution had 
 failed. After the people rested, the young lawyer 
 moved for the discharge of his clients in a short but 
 forcible and yet modest argument. The counsel for the 
 people opposed it with stormy, threatening and long- 
 drawn eloquence. But the court was against him, and 
 the prisoners were discharged, and Hathaway, with a 
 very remunerative fee in his pocket, resumed his 
 journey. 
 
 " This," he used to say, in describing the case, 
 " was my first important case, and I shall never forget 
 the opening address of 'Old Jurisprudence' to the 
 jury." 
 
 We have often heard him, with his inimitable power 
 of mimicry, rehearse it in a manner equaled only by one 
 of Martin Grover's replies to an attack of Luther C. 
 Peat on him at the Alleghenv bar. 
 
A CELEBRATED" LAWYER 
 
 In Jail for Contempt of Court — Chancellor Livingston and 
 the Chief Justice of the State at War — Livingston Prose- 
 cuted for False Imprisonment. 
 
 Among the important cases that engrossed the at- 
 tention of the Supreme Court in early days, no one 
 created more profound sensation, no one settled ques- 
 ■ tions of more vital importance to the rights and liberties 
 of the citizen, to the legal profession and to the judi- 
 ciary, than the memorable legal contest which grew out 
 of the attempt of John Lansing, chancellor of the State 
 of New York, to punish John Van Ness Yates, a law- 
 yer, for alleged malpractice and contempt of court. 
 The case was seriously important in another sense — it 
 brought the Court of Chancery and the Supreme Court 
 in collision, and determined the powers of high judicial 
 officers over the rights of citizens. 
 
 It has been well said that the customary presence of 
 attorneys and counselors in courts of justice and their 
 habitual participancy in the most solemn and interest- 
 ing judicial proceedings, have naturally caused them to 
 be considered a constituent part of the court itself ; 
 that, as to many of the functions which they take 
 upon themselves, for failure to discharge these with 
 fidelity and efficiency they are properly held amenable 
 to severe punishment, and that courts of justice will, 
 therefore, see to it that their clients are jDrotected 
 against over-reaching by the shrewd and dishonest 
 
 [148] 
 
A CELBBKATED LAWYER IN JAIL. 149 
 
 lawyers, wliom they may employ. Certainly lawyers 
 should be held to as strict accountability to their 
 clients as physicians and surgeons to their patients. 
 It was, doubtless, these impressions that induced 
 Chancellor Lansing to pursue and promptly imprison 
 a counselor at law and a high official for what he 
 deemed malpractice and contempt of court. 
 
 In 1808, John V. W. Yates was an eminent law- 
 yer of the Albany bar, one of the masters in chancery, 
 a man of many shining and impressive traits of char- 
 acter, fine literary taste, ready resources of mind, 
 and many useful talents. By the ninth section of 
 the act then in existence, concerning counselors, 
 attorneys at law, and solicitors in chancery, all of 
 these officers were forbidden to bring any action in 
 the name of another attorney or solicitor without his 
 knowledge and consent. At this time Mr. Yates was 
 not a solicitor of the court of chancery. Sometime 
 during the summer of 1808, while discharging his 
 duties as a master in chancery, he commenced an 
 important action in that court, for one Samuel Bacon, 
 against Henry G-aretze and another, using the name 
 of one Peter W. Yates as solicitor, as was alleged, 
 against his knowledge and consent, and contrary to 
 the statute we have referred to. As soon as this 
 circumstance was made known to the defendant's 
 solicitor, he promptly moved for a dismissal of the 
 complaint, on the ground that it was filed and signed 
 contrary to the said statute. The motion was granted, 
 subjecting Mr. Bacon, the complainant, to a bill of 
 costs, considerable mortification, and a great delay in 
 collecting what he deemed a just demand. Determined 
 
150 LAWYER AND CLIENT. 
 
 not to submit tamely to this imposition, he made com- 
 j)lainfc against Mi-. Yates, charging him with the acts 
 we have described. After due notice, the complaint 
 was presented to the chancellor, who granted an order 
 for the arrest of the ofEender, and he was brought into 
 court, a prisoner. He admitted that he had acted as a 
 solicitor as alleged, but asserted that it was with the 
 consent of Peter "W. Yates. The latter denied that 
 he had ever consented that his name should be thus 
 used. The prisoner also excepted to the issuing of the 
 order of arrest, insisting that it was illegal and un- 
 warrantable and subversive of the rights of a citizen ; 
 that the charge against him was a crime ; that the 
 court of chancery had no criminal jurisdiction ; that 
 whether he was guilty or not, was a question which the 
 constitution provided should be tried by a jury. But 
 the chancellor took a difi erent view of the case, and Mr. 
 Yates was denied bail, and sent a prisoner to that dis- 
 mal dungeon, the old Albany jail. 
 
 John Lansing was the second chancellor of the State 
 of New York, an accomplished lawyer, a judicial officer 
 of great ability and learning, but a man of iron will and 
 unyielding determination, tenacious of his official dig- 
 nity ; and he regarded the high court over which he 
 presided with reverential respect. Mr. Yates was high- 
 ly popular with the people, and his incarceration cre- 
 ated great excitement. He was a proud, high-minded 
 man, inflexible in his purposes, ardent in carrying them 
 into execution, of an implacable temper, and he deter- 
 mined to contest what he conceived to be the high- 
 handed course of the chancellor towards him to the bitter 
 end, and he carried his determination with unequaled 
 
A dELEBRATED LAWYER IN JAIL. 151 
 
 earnestaese into effect. He retained Thomas Addis Em- 
 met, instructing him to pursue the fight to the bitter 
 end and to carry the war into Africa. As it was a case 
 where the liberties of the citizen were abridged, Emmet 
 entered into it with all his zeal, learning, eloquence, 
 and intellectual powers. 
 
 James Kent was then chief justice of the State, 
 and Ambrose Spencer, one of the great, learned and 
 useful men of the past, inflexible as marble, but pos- 
 sessing all its purity, was then an associate justice of 
 the Supreme Court of the State. To him Mr. Emmet 
 applied for a writ of habeas corpus for the release of 
 his client from imprisonment. It was promptly grant- 
 ed, and Mr. Yates was brought before Judge Spencer, 
 who, after hearing the whole case, discharged him, on 
 the ground that his original capture was illegal, 
 and that his imprisonment was also illegal, un- 
 warrantable and subversive of the rights and liberties 
 of citizens. But the moment the chancellor heard of 
 Judge Spencer's decision, he ordered the sheriff of 
 Albany county to retake Mr. Yates and recommit him 
 to prison. The order was obeyed, and the polished, 
 high-toned gentleman and distinguished official and 
 lawyer was again within the walls of a dungeon. Per- 
 haps never in the course of his extensive practice was 
 Thomas Addis Emmet more indignant at the decision 
 of a judicial oflScer than he was at this decision of the 
 chancellor; and he determined to make his every energy 
 and all his power and influence subservient to the task 
 of overthrowing it, and liberating his client. 
 
 The fight he made, perhaps more than any other 
 act of his life, evinces his power and ability as a lawyer. 
 
152 LAWYER AND CLIENT. 
 
 Very soon after the re-arrest of Mr. Yates the Supreme 
 Court commenced its sittings at Albany. Immediately 
 after the crier had made the usual proclamation opening 
 the court, Mr. Emmet was on his feet moving for an- 
 other writ of habeas corpus to bring before the court 
 the body of Mr. Yates. He supported his motion with 
 a brief, pertinent and learned argument. 
 
 "Your honors are aware," said he, "from the affi- 
 davits and other papers I have read, that the chancellor 
 of the State of New York has attempted to overrule and 
 set at naught, nay, to defy the powers of the Supreme 
 Court of the State. He has done the unprecedented 
 act of recommitting a man to prison, who has been dis- 
 charged on a habeas corpus, by a judge of one of the 
 highest courts of the State of New York, and this too 
 without bail. He has done this in derogation of the 
 statute in such cases. A judge of a court having no 
 criminal jurisdiction, has, on ex parte evidence alone, 
 committed a citizen to prison, there to languish until, 
 in his discretion, he shall see fit to discharge him, ex- 
 ercising not only the assumed duties of judge but the 
 duties of the Executive of the State, and I therefore 
 humbly pray your honors that you grant the great and 
 humane writ of habeas corpus." 
 
 "The case," said Chief Justice Kent, "is of so 
 much importance that the court will take the papers, 
 and our decision will be announced to-morrow morning." 
 
 The next morning, on the opening of court, the 
 chief justice pronounced an opinion, in which the. 
 prayer for the writ was granted. Mr. Yates was accord- 
 ingly brought before the court, and the sheriff made a 
 return to the writ in which he recited the history of 
 
A CELEBEATED LAWYER DST JAIL. 153 
 
 the case as -we have thus far presented it. A hearing 
 took place before the court, and Mr. Emmet reiterated 
 his former objections to the order of the cliancellor, in- 
 sisting tliat his last order of commitment was a mere 
 rule of court and not a writ or warrant, and the sheriff 
 was not bound to obey it ; that it was in derogation of 
 the habeas corpus act, and void ; that the original order 
 was void because the matter laid to the prisoner's chai'ge 
 is a crime, made so by statute, and the only manner in 
 which he can be punished is by indictment, and after 
 a trial by jury, in case he is found guilty ; that the con- 
 viction of Yates is founded on the affidavits of Samuel 
 Bacon Rich, S. Lent and Peter W. Yates. It is charged 
 that the prisoner has been guilty of contempt of court. 
 On this charge he should have been met with the usual 
 interrogatories propounded to persons charged with con- 
 tempt, with the privilege of answering such interroga- 
 tories in detail. 
 
 It is not our purpose to follow the arguments of Mr. 
 Emmet nor those of his opponents ; neither shall we at- 
 tem^pt to give the opinion of the court on this great 
 question. Suffice it to say that Judge Spencer, in an 
 able, eloquent and exhaustive opinion, held that the 
 Chancellor possessed no authority in the first instance 
 to order the arrest of Mr. Yates, and that his second 
 order of arrest, after the discharge of the prisoner, was 
 illegal and void, and that he should be discharged. 
 Judge Spencer was sustained by Joseph 0. Yates, then 
 an associate justice of the Supreme Ooui-t, and subse- 
 quently governor of the State — ^no connection, however, 
 of the prisoner. But the chief justice and associate 
 justices Thompson and Van Ness dissented, holding that 
 
154 LAWYER AND CLIENT. 
 
 the original as well as the second arrest of Yates was 
 lawful. As the majority of the court was against Mr. 
 Emmet, his client was again remanded to the custody 
 of the sheriff, and Chancellor Lansing was again tri- 
 umphant. But this decision of the Supreme Court only 
 fired the zeal of Mr. Emmet in behalf of his client, and 
 he determined to test the case in the court of last resort 
 in the State, the Court for the Correction of Errors. And 
 now the hottest part of the struggle between Emmet 
 and Chancellor Lansing ensued. For the purpose of 
 carrying the case to the Court of Errors, to be there re- 
 yiewed, the indefatigable lawyer applied to the Court of 
 Chancery for a writ of error, according to the then ex- 
 isting practice. As that court was considered always 
 open, the writ was issued by the clerk under the seal of 
 the court, without the knowledge of the chancellor. It 
 commanded, among other things, the justices of the Su- 
 preme Court to send the record and proceedings, with 
 all things touching the case, to the Court for the Cor- 
 rection of Errors, that the same might be reviewed, and 
 speedy justice done the prisoner. But before the Su- 
 preme Court could obey this writ. Chancellor Lansing 
 was again in the field, and he came down with a writ of 
 supersedeas, in which he commanded the judges of the 
 Supreme Court to desist from making any return to the 
 writ of error, and to forthwith supersede the same. 
 The direct effect of this would be to prevent Mr. Yates 
 from having his case reviewed in an appellate court. 
 Was there ever a tribunal of the dignity and possessing 
 the power which the Supreme Court of judicature of the 
 people of the State of New York did, placed in a situa- 
 tion so novel and so singular ? 
 
A CELEBRATED LAWYEE IN JAIL. 155 
 
 It was commanded by one writ, issued out of the 
 Court of Chancery, to do a certain act, and by another 
 writ, issued out of the same higli court, not only to de- 
 sist from doing the act, but to annul and supersede the 
 first writ. Here were two original fountains of justice 
 meeting each other in opposite directions, or rather, one 
 great fountain impeding its own course, attempting to 
 control the powers of a co-ordinate branch of justice. 
 The people of the State and Nation regarded the situa- 
 tion with deej) interest, while the jurists of the old 
 world pointed to it as indubitable evidence of the ina- 
 bility of a republic to administer its own laws. But the 
 legal Grordian knot was cut by the keen sagacity, pru- 
 dence, and ready mental resources of Ambrose Spencer, 
 who, in the early part of this singular contest, as we 
 have seen, arrayed himself against the course jrarsued 
 by the chancellor. When the justices of the Supreme 
 Court met to decide upon the course to be pjursued by 
 them in regard to the two conflicting commands of the 
 Court of Chancery, he proposed to make a return to the 
 Court of Errors, with a relation that should set forth the 
 existence of both writs, and then pray that the court 
 above should direct • the proper course to be pursued 
 under the circumstances. This proposal was adopted 
 by all the members of the Sujareme Court, and a return 
 was made that contained the writ of error, and the writ 
 of supersedeas. It concluded in the following signifi- 
 cant language : " The said justices of our Supreme 
 Court are accordingly unadvised what of right ought to 
 be done in the premises, as they humbly apprehend 
 that it appertains to your honorable Court for the Oor- 
 rectiou of Errors, and not to them, to determine 
 
156 LAWYER AND CLIENT. 
 
 whether the said writ of error be yalid and operative or 
 not, notwithstanding the said writ of supersedeas, or 
 whether it be null and void by reason of the said 
 writ of supersedeas," Such was the return made 
 to the Court for the Correction of Errors by the jus- 
 tices of the Supreme Court. When it was read in 
 the former tribunal, that court directed Abraham 
 Van Vechten, then attorney-general of the State, 
 and the counsel for Mr. Yates, to argue the prelim- 
 inary question as to the sufficiency of the return, 
 and whether the writ of error was not null and void by 
 reason of the writ of siqjersedeas. The court also in 
 its order assigned the 22d day of February, 1810, for 
 the hearing of the arguments of counsel on the ques- 
 tion. Never was there a more brilliant or a more 
 deeply interested audience than the one that crowded 
 the court-room of the Court of Errors when the argu- 
 ment took place. 
 
 The great renown of the respective counsel engaged, 
 the high professional, literary and official standing of 
 the prisoner, and high above all the novelty and im- 
 portance of the question, invested the whole matter to 
 be discussed with unprecedented interest. Was the 
 high and almost absolute power wliich the chancellor 
 had assumed to be sustained, or was this great court 
 about to fix some limit to that power ? 
 
 The chancellor himself was a member of the court ; 
 but his flowers were limited to giving reasons for the 
 decision he had made. The other members of the court 
 were the lieutenant-governor and the senators of the 
 State, with the cliief justice of the Supreme Court, 
 whose powers were restricted to the same limits as the 
 
■A CELEBEATED LAWYER IN JAIL. 157 
 
 chancellor's. The argument in favor of Mr. Yates was 
 opened by Mr. Eodman and closed by Mr. Emmet. The 
 attoracy-general conducted the argument against Yates. 
 
 His efEort on this occasion was the crowning triumph 
 of his professional life. We have so often described him 
 as he appeared before various tribunals, that we shall 
 now merely apply to his argument the description given 
 of Mr. Burke's speech on the impeabhment of Warren 
 Hastings, "He astonished even those who were most 
 intimately acquainted with him, by the vast extent of 
 his learning, the variety of his resources, the minuteness 
 of his information, and the lucid order in which he 
 arranged the whole for the support of his position." 
 Scarcely less than this can be said of that great advo- 
 cate, Mr. Van Vechten, who, " eloquent as he was, im- 
 pressed every hearer with the belief that there was 
 something in him higher than all eloquence — something 
 greater than the orator." 
 
 De Witt Clinton, Edward P. Livingston, Charles 
 Selden, Jonas Piatt, Daniel Pratt, and many other dis- 
 tinguislied lawyers of the State, were then members of 
 the Senate, and of course members of the Court for the 
 Correction of Errors. After the respective counsel had 
 concluded their arguments, the court adjourned until 
 the 27th of February, for the purpose of deliberating 
 upon the case and preparing opinions. The morning of 
 the 27th of February, 1810, again saw the court-room 
 thronged with people, eager to listen to the decision of 
 senators upon this absorbing question. Various opin- 
 ions, for and against the position assumed by the chan- 
 cellor, were delivered, but when the final vote was 
 taken, the writ of supersedeas granted by the chancellor 
 
158 LAWTEE AND CLIENT. ' 
 
 was declared to be a nullity, and the justices of the 
 supreme court were directed to make a more full return 
 to the writ of error, which was sustained, and in the 
 meantime Mr. Yates was let to bail. A return in due 
 form was made to the writ of error, and filed with the 
 clerk of the Senate, whereupon the attorney- general 
 moved to quash the writ, and another lengthy argument 
 followed. The great question now before the court was 
 whether a writ of error would lie on a Judgment on a 
 habeas corpus. The motion to quash the writ was de- 
 nied by the court, the writ sustained, and a day ap- 
 pointed for the argument of the whole case on its merits 
 before the court. The principal question to be dis- 
 cussed was whether the chancellor possessed the power 
 in the first instance to order the arrest of Mr. Yates, 
 and whether he had the right to order his re-arrest after 
 his discharge by Mr. Justice Spencer. 
 
 The arguments made on these final questions in this 
 great case were specimens of acute and powerful reason- 
 ing, enlivened occasionally by glowing eloquence, and 
 were indeed among the finest forensic speeches ever made 
 at the American bar. The various opinions given by the 
 members of the court, exhibit a depth of learning and 
 judicial erudition which would have done honor to Sel- 
 den. Hale, Mansfield, Ellenborough or Marshall. In 
 due time a judgment of the court was rendered, revers- 
 ing the decision of the Supreme Court, which had sus- 
 tained the chancellor's order arresting Mr. Yates, and 
 that gentleman was accordingly discharged from arrest.* 
 He afterwards brought an action against Chancellor 
 
 ♦People v. Yates, 6 Johnson's Reports, 335. 
 
& 
 
 A CELEBKATED LAWYER IN JAIL. 159 
 
 Lansing to recoTer a penalty of $1,020, by a section of 
 the liabeas corpus act, which declared that " no person 
 who had been set at liberty by any liabeas corpus should 
 be again imprisoned for the same ofEense, unless by the 
 legal order or process of the court wherein he was 
 bound by recognizance to appear, or other court having 
 jurisdiction of the cause ; and if any person should 
 knowingly re-commit and imprison a person for the 
 same offense, he should forfeit to the aggrieved the 
 above sum." A long and bitter litigation followed. 
 The case went by appeal from one court to another, 
 until it reached the Court for the Correction of Errors, 
 where it was decided that "the chancellor was not 
 liable, as the statute was applicable to individuals act- 
 ing ministerially, out of court, and did not apply to 
 the acts of a court done of record, and that the supe- 
 rior tribunals of general jurisdiction were not liable to 
 answer personally for acts done by them in a judicial 
 capacity. "* 
 
 Thus ended a litigation, unequaled in legal history, 
 that occupied the attention of our state court for years, 
 involving and settling a question of paramount interest 
 and importance to all classes pf people. Mr. Yates was 
 afterwards, on account of his great learning, ability and 
 industry, appointed to "add notes, references and suc- 
 cinct matters touching the laws under our colonial gov- 
 ernment to the revised laws of New York of 1813 " — a 
 duty which he discharged with singular success. 
 
 * Yates «. Lansing, 5 Johnson's Reports, 335. 
 
BUENIlSrG OP "THE OAEOLIlSrE "— TEIAL OF 
 ALEXANDEE McLBOD FOE BUENING HEE. 
 
 Singular Incidents in the Trial — The Habeas Corpus — Joshua 
 A. Spencer — Bank Note Trial — The Burning Bank Notes. 
 
 Isr the great case of the People v. McLeod, tried be- 
 fore Judge Gridley in July, 1841, Joshna A. Spencer 
 ai^peared for the defense. Before commencing his ad- 
 dress to the jury he submitted certain legal propositions 
 to the court, to one of which the judge exclaimed, with 
 some Avarmth, " There is nothing in that point, Mr. 
 Spencer, nothing at all ; and I am surprised that you 
 press it." A slight fi'own lowered for a moment over 
 the dark, animated face of the counsel, and, drawing 
 himself up to the full height of his fine figure, said, 
 with dignified firmness : " The court will do well to 
 enlighten itself on that point before charging the jury." 
 Judge Gridley, who always placed justice and the right 
 before pride of opinion, after due reflection informed 
 the jurors in his charge to them that his first impres- 
 sions on the point were wrong, and that the counsel was 
 right. 
 
 Erastus Eoot, an accomplished orator — a man of se- 
 vere and critical taste, who often listened to the argu- 
 ments of Hamilton and Burr, writing to a friend, said ; 
 " The words of Hamilton are so well chosen, his sen- 
 tences so finely formed into a swelling current, that the 
 [ICO] 
 
BURNING OF " THE CAEOLTNE." KU 
 
 hearer is captivated ; he will admire if he is not con- 
 vinced. But the arguments of Burr are moie method- 
 ized and compact. He will say as much in a half hour 
 as Hamilton will in two. Burr is terse and convincing, 
 Hamilton flowing and rapturous." 
 
 Joshua A. Spencer chose a happy medium between 
 the intensely compact, terse style of Burr, and the 
 flowing, florid style of Hamilton. 
 
 There was a vein of ideality in Spencer's nature, ap- 
 proaching something like poetic fervor, not distin- 
 guishable in and of itself, but blending in, and soften- 
 ing the lights and shades of his whole character. 
 Hence, in private life he was an agreeable, instructive 
 companion ; the hold, which domestic and social ties 
 had upon him were the most pleasing traits of his char- 
 acter. Such was the kindness of his nature that even 
 his prodigious professional labors did not exclude those 
 amenities to friends, those affectionate attentions to 
 kindred, for the neglect of which multiplied cares are 
 often admitted as an excuse. 
 
 In some of his characteristics he resembled John C. 
 Spencer. They were both great lawyers, and possessed 
 in an equal degree all the resouj-ces of accurate and ex- 
 tensive legal learning. As was said of Mr. Canning and 
 Lord Dudley, they differed rather in the degrees to 
 which habit and accident had fitted them for actual 
 business, than in the strength of their understanding 
 and reasoning powers. Joshua A. Spencer was the 
 most powerful declaimer, had the sharpest wit, the 
 most original fancy. John C. Spencer's reasoning was 
 like sharpened, well-tempered steel, cold but cutting. 
 He never made any attempt at witticism, and was sin- 
 
162 LAWTEE AND CLIENT. 
 
 gularly vulnerable to sarcastic attacks ; hence he was 
 much annoyed by the satire of Dudley Marvin, whose 
 witty and lively replies were often perfectly dead shots 
 at some of his towering intellectual efforts. 
 
 " This authority, your honor, is too strong and well 
 settled to be doubted by any one," said Marvin one day, 
 while arguing a case against John 0. Spencer. 
 
 " I doubt it very much, sir." 
 
 " Then, Mr. Spencer, you must take the conse- 
 quences of doubting," said Marvin. 
 
 " What are the consequences, sir ?" asked Spencer. 
 
 " Why, he that doubts shall be damned," was the 
 quick reply. The glow on Spencer's face and the ner- 
 vousness which he exhibited for some time, proved that 
 the shaft had hit its mark. 
 
 John 0. Spencer could follow an argument with 
 more sustained acuteness than Joshua. But the latter 
 possessed a skill in statement which frequently disposed 
 of the matter in dispute before his opponent was aware 
 that his flank was turned. "His thoughts were strong, 
 therefore his words were forcible. Both were full of 
 their subject — saw all its bearings — felt all its strength 
 — knew all its weakness. The former knew how to il- 
 luminate what was dark in a case by throwing upon it a 
 condensed light — could analyze his opponent's argument 
 with mathematical precision — could resolve all its 
 proijositions into its elements, and then test them by 
 first principles." The faculty of combining facts with 
 feeling and thought, the promptitude of recollection, 
 together with the powers- of comparison and selection, 
 belonged to Joshua A. Spencei' — qualities which consti- 
 tute the greater part of what is called genius. 
 
BURNING OF "THE CAEOLINB." 163 
 
 John C. Spencer was a politician, statesman and 
 Cabinet minister, possessing extraordinary administra- 
 tive abilities and an aptitude for public aSairs, united 
 with much of the self-possessed gravity of Calhoun, 
 with more natural suavity than the great Carolinian, 
 whom he resembled in many points of character. He 
 was distinguished throughout the nation for strength, 
 energy and recondite thought as a political and legal 
 writer. Like Machiavel, to whom he may be compared 
 as a political writer, he wielded a gigantic pen, whose 
 productions, though often bitter and dogmatic, were 
 the sword and shield of his party. 
 
 But the political arena had few attractions for 
 Joshua A. Spencer. He never envied or emulated the 
 fleeting distinctions of those, who, like actors in a drama, 
 are permitted to appear in character for a brief period, 
 and then compelled to retire behind the scenes to give 
 place to another. The empty pretensions, show and 
 platitudes so necessary to the success of partisan poli- 
 ticians, were never adopted by him. 
 
 He firmly believed in and adopted many of those 
 principles which rendered the Whig party a great and 
 powerful, if not always a successful, antagonist to the 
 Democratic party. When the Whig party was dis- 
 solved, he remarked that it had gone into the world's 
 history, with the reasons for and against it, rendered by 
 great statesmen — patriots for all time, all circumstances 
 and all emergencies. He was firm, but moderate, in 
 his political predilections. Hence no thundering de- 
 nunciations of the mob, no outcry of the press, ever 
 moved him in the least from what he believed to be hid 
 duty. 
 
164 LAWYEK AND CLIENT. 
 
 ) "He would not flatter Neptune for his trident, 
 
 J Or Jove for his power to thunder." 
 
 In the autumn of 1845 Mr. Spencer was elected to 
 the State Senate from the then fifth senatorial district. 
 His well-known ability gaye him a conspicuous place in 
 the Senate. The same clearness, distinctness, eloquence 
 and earnestness which distinguished him at the bar, 
 characterized him as a legislator. He never indulged 
 in anything like a sensational nature, had no taste for 
 "legislative pyrotechnics," no desire to do something 
 to attract attention, though of course he did much that 
 drew censure upon him — many things which proved 
 that, like other men, he " was warped to wrong." As 
 Chairman of the Judiciary Committee his duties were 
 onerous. His reports and legislative documents, though 
 very respectable, do not exhibit that grasp of thought, 
 power 01 analysis and facility of expression that is 
 found in his oral productions. 
 
 His independence of public clamor was illustrated 
 when Alexander McLeod, already alluded to, was 
 brought before the Supreme Court of the State on a 
 writ of habeas corpus ad subjiciendum, in May, 1841. 
 Mr. Spencer appeared in support of the mandates of 
 the writ. 
 
 Having been appointed United States District At- ' 
 torney for the Northern District of New York, after 
 he was retained by McLeod, he was urged by popular 
 clamor to abandon the defense of his client, for the 
 reason that he held the- position of prosecuting officer 
 of the United States, though the case was pending in 
 the State courts. But he promptly and sternly re- 
 
BURNING OF " THE CAEOLINE."' 165 
 
 fused, and was therefore severely denounced by the 
 press. Disregarding all this he appeared before the 
 court at Albany, and contended for the rights of his 
 client in an argument unsurpassed in reason, learning 
 and power. As is said of the great speech of Halifax 
 in the House of Lords, on the right of petition, if he 
 had never made any other speech but that one, he would 
 have been regarded as a forensic debater which few 
 could rival. In the course of the argument he referred 
 to the popular cry which had been raised against him. 
 " Wlien a counselor at law," said he, "can be driven 
 from the defense of his client by the clamor of the pub- 
 lic, by the attacks of the press, by anything save the 
 acts of his client, he is unworthy the high and honor- 
 able profession which he has chosen. Public clamor, ; 
 either in denouncing or applauding, what is it ? It is / 
 the waving of the wind, sweeping by us to-day from the 
 north, to-morrow blowing as strong from the south. 1 1 
 was retained to defend this man before my appointment [ 
 as District Attorney for the general government ; there- 
 fore that circumstance cannot interfere with my relation 
 to my client." 
 
 Though the court was against him, and McLeod was 
 remanded for trial, yet that did not detract from the 
 laurels he won in that great contest. The brilliancy of 
 his effort for his client swept away all prejudice of the 
 past. In the month of July following McLeod was 
 brought to trial at the Oneida Oyer and Terminer, the 
 venue having been changed from Niagara county to 
 Oneida. Joshua A. Spencer, true to his client, ap- 
 peared for him in that tribunal, and after an obstinate 
 contest succeeded in rescuing him from the grasp of the 
 
166 LAWYER AND CLIENT. 
 
 law — the jury pronouncing a verdict of not guilty. 
 Though the case of McLeod is one of the most impor- 
 tant that ever engaged the attention of the State courts, 
 it is referred to liere as exhibiting very many character- 
 istics of Mr. Spencer.* His successful defense in the 
 case of that celebrated criminal, Euloff, tried for the 
 murder of his child, at Ithaca, in October, 1856 ; his 
 brilliant but unsuccessful defense of Henry W. Green, 
 are among his great professional efforts. In the latter 
 case he was assisted by Job Pierson, an eloquent and 
 distinguished lawyer. He was opjDosed by John Van 
 Buren, then attorney-general, and Martin I. Townsend, 
 known throughout the State as a powerful and success- 
 ful advocate. 
 
 In the trial of a case Mr. Spencer always provided 
 for every possibility. He would frequently bridge by 
 some sudden turn when his overthrow seemed inev- 
 itable. 
 
 He was once engaged in the trial of a cause against 
 an insurance company, for the loss, by fire, of a large 
 amount of money in bank notes. The company alleged, 
 in its defense, that as the bills would naturally burn 
 very slow under the circumstances of the case, the 
 plaintifE was guilty of negligence in not rescuing them 
 from the flames. To establish this defense the cashier 
 of a neighboring bank was called, who testified that it 
 must have taken a long time for the bills to burn — time 
 enough for their rescue by proper effort — that he had 
 recently had occasion to burn a large number of the 
 small bills of his bank, and that they burned very slow 
 
 ♦People V. McLeod, 1 Hill's Reports 377. 
 
BTTENDTG OF " THE CAEOLINE." 1G7 
 
 indeed. On the cross-examination Mr. Spencer asked 
 him if they were not old and damaged. The witness 
 answered in the affirmative. 
 
 " Had you been some time in collecting them ?" 
 
 "Yes, sir ; some months." 
 
 " Where were they kept ?" 
 
 " In our vault, sir." 
 
 " Is your vault made of stone ?" 
 
 "It is." 
 
 " That will do, sir," and the witness left the stand. 
 
 Spencer then took a one-dollar bank-note from his 
 pocket, belonging to the same bank of those for the 
 destruction of which the suit was brought, held it in 
 the blaze of a candle before him at arm's length, lit it, 
 let it fall, and before reaching the floor it was in ashes. 
 He then took fifty one-dollar bills from his pocket, pro- 
 posing to light them all at once before the jury, and 
 if consumed before reaching the floor, that the oppos- 
 ing counsel should refund their value ; "if not," he 
 continued, "I will cheerfully lose them." The offer 
 was declined, and his client succeeded. 
 
DANIEL WEBSTER AND WILLIAM PINCKNEY. 
 
 Severe Altercation between them — Singular Trait in the Char- 
 acter of Webster — The Story Doubted — Pinckney and 
 Thomas Addis Emmet — Bitter Attack of Pinckuey on 
 Emmet in the United States Supreme Court — A Magnani- 
 mous Rebuke and a Generous Apology — Webster and 
 Hayne. 
 
 Hakvbt, in his interesting work, " Eeminiscences of 
 Daniel Webster," describes a collision between William 
 Pinckney, of Maryland, and Webster, that reveals fea- 
 tures in the characters of these illustrious men never 
 before described in history. They give Webster the 
 characteristics of a bully, wanting that senatorial dig- 
 nity, that patrician's superiority blended with flexible 
 courtesy and winning grace of manners, which have al- 
 ways been accorded to him. Pinckney, a man of com- 
 manding figure, of many personal attractions, vigor of 
 limb, undoubted honesty, regarded in foreign courts 
 and at home as a gallant and chivalrous gentleman, is 
 represented as a coward, trembling like an aspen leaf in 
 presence of Webster, who, with blustering threats of 
 personal violence, extorts from him a cringing apology 
 in private and in public. 
 
 On the same day the words were spoken, according 
 
 to Mr. Harvey, Pinckney and Webster happened to 
 
 meet in one of the halls of the Capitol at Washington, 
 
 and the latter in a peremptory manner demanded a pri- 
 
 [168] 
 
WEBSTEE AND PINCKNBY. 169 
 
 vale interview with the former. The singular and al- 
 most dramatic scene that took place is given by the 
 writer in Webster's own language, who, as he alleges, 
 related it to him. 
 
 " We passed," says Webster, " into one of the ante- 
 rooms of the Capitol. I looked into one of the grand 
 jury rooms, rather remote from the main court-room. 
 There was no one in it, and we entered. As we did so, 
 I looked at the door and found there was a key in the 
 lock ; and, unobserved by him, I turned the key and 
 put it in my pocket. Mr. Pinckney seemed waiting with 
 some astonishment. I advanced towards him and said : 
 'Mr. Pinckney, you grossly insulted me this morning 
 in the court-room ; and not fcjr the first time, either. 
 In deference to your position and the respect in which 
 I hold this court, I did not answer you as I was tempt- 
 ed to do on the spot.' We began to parley. I con- 
 tinued : ' You know you did it ; and don't add another 
 sin to that ; don't deny it ; yon know you did it, and 
 you know it was premeditated ; it was deliberately, it 
 was purposely done, and if you deny it you state an un- 
 truth. Now, I am here to say to you once for all, that 
 you must ask my pardon, and go into court to-morrow 
 morning and repeat the apology, or else you or I will 
 go out of this room in a different condition from which 
 we entered it.' I was never more in earnest in my life. 
 
 "He looked at me and saw that my eyes were pretty 
 dark and firm. He began to say something ; I inter- 
 rupted him. 'No explanations,' said I; 'admit the 
 fact and take it back ; I do not want another word from 
 you except that ; I will hear no more explanations ; 
 nothing but that you will admit it and recall it.' He 
 
170 LAWTEE AND CLIENT. 
 
 trembled like an aspen-leaf. He again attempted to 
 explain. Said I, ' There is no other course ; I have the 
 key in my pocket, and you must ajiologize or take what 
 I have to give you.' At that he humbled down and 
 said, ' You are right ; I am sorry ; I did intend to bluff 
 you ; I regret it, and I ask your pardon.' 'Now,' said 
 
 1, ' one promise before I open the door, and that is that 
 you will, to-morrow morning, state to the court that 
 you have said things which wounded my feelings, and 
 that you regret it.' Pinckney replied, 'I will do it.' " 
 
 Bishop Pinckney, of Baltimore, his nephew, in a 
 lengthy letter published in the Law Journal of August 
 
 2, 1879, denies with much earnestness the authority of 
 this story. He insists that the well-known character- 
 istics of those illustrious men are strongly against its 
 truth. 
 
 " Either," says the bishop, "Mr. Webster did say 
 all that is reported of him by Mr. Harvey, or Mr. Har- 
 vey made it up, or else Mr. Harvey is in a grievous er- 
 ror." . . . " I turn then," continues the bishop, 
 " from Peter Harvey, who has recorded it, to the many 
 warm friends of Mr. Webster, and address to them this 
 my solemn remonstrance, and I greatly mistake the 
 character of the men to whom I appeal, if they do not 
 discard the deed as one of which Mr. Webster could 
 not possibly be guilty." Again he says, "Mr. Pinck- 
 ney's courage had been too often tested to be ques- 
 tioned. Of powerful physical frame, and moral nerve 
 that few men possessed in an equal degree, he had no 
 occasion to quake and tremble in the presence of Mr. 
 Webster." " Then again," says the bishop, ' ' there are no 
 grand jury rooms in the Capitol, and never have been." 
 
WEBSTER AND PmCKNEY. 171 
 
 On the whole, he makes a strong case against Mr. Har- 
 vey. 
 
 Whatever are the real facts in the case, it is certian 
 that Thomas Addis Emmet, the great Irisli orator 
 and lawyer, once extorted an apology from Mr. Piuck- 
 neyi'n open court. It was not done by -ruffianly threats 
 and bluster, it was given in no craven fear — with 
 no aspen-leaf trembling, no cowardly submission to 
 the demands of a bully. But it was done in a manner 
 that evinced the magnanimity, chivalrous sense of honor, 
 and graceful courtesy that distinguished the character 
 of William Pinckney, the most eminent lawyer, orator 
 and diplomat of his age. It was as beautiful in 
 thought and diction as was the graceful, ingenuous and 
 affecting reproof that extorted it. 
 
 The circumstance to which I allude took place dur- 
 ing the argument of the great case of the Nereide, be- 
 fore the United States Supreme Court, in which Em- 
 met and Pinckney were opponents. It will be found 
 in Cranch's Reports, vol. 9, page 398. 
 
 It involved the novel question of international law 
 — whether a neutral could lawfully lade his goods on 
 board an armed enemy's vessel. The extensive learning 
 and peculiar experience of Mr. Pinckney in maritime law 
 was generally acknowledged. The case elicited all his 
 energies — excited all his professional ambition. Indeed, 
 he could not brook the thought of defeat. He con- 
 tended that the neutral property found on board the 
 Nereide, an armed British vessel captured by our sea- 
 men in the war of 1812, was liable to condemnation, 
 especially as Mr. Pinto, their owner, placed them there, 
 knowing it to be a belligerent cruiser, and was on board 
 
172 LAWTEE AND CLIENT. 
 
 at the time of its captivity ; therefore, the goods lost 
 their neutral character; and even though their owner- 
 did not aid in the armament of the vessel, and did not 
 offer any resistance to its capture, if a neutral takes 
 the protection of a hostile force, he must take the con- 
 sequences. On the other hand, Mr. Emmet claimed 
 that the goods did not lose their neutral character by 
 being found on board the vessel, nor in consequence of 
 resistance made by the armed vessel, notwithstanding 
 he had chartered the whole of it, and was found on 
 board when captured ; that the act of arming was the 
 act of a belligerent party ; that the neutral goods did 
 not contribute to the armament, further than the 
 freight, which would be paid if the vessel was unarmed; 
 that neither the goods nor the neutral owner were 
 chargeable with the hostile acts of the belligerent ves- 
 sel if the neutral took no part in the resistance. 
 
 Mr. Emmet was embarrassed by a contemporary de- 
 cision of an opposite character, on the same point, made 
 by the English High Court of Admiralty in the case of 
 the Fanny. The case at bar was one of infinite im- 
 portance. It involved millions of dollars ; it would 
 make or break the fortunes of thousands whose prop- 
 erty depended upon it. 
 
 Emmet's reputation was not as extended as his op- 
 ponent's. He was known only as a lawyer, but his 
 legal knowledge and polemical skill were almost un- 
 equaled except by his chaste and polished diction. Few 
 lawyers ever appeared in court better pi-epared to grasp 
 the great questions involved in their case than Emmet 
 and Pinckney on this occasion. 
 
 The argument took place before Chief Justice Mar- 
 
WEBSTER AND PINCKNKV. 173 
 
 shall, and Brockliolst Livingston, Associate Justice of 
 the Supreme Court. The great interest which the case 
 elicited was indicated by the unusual composition of the 
 audience that thronged the court-room: senators and 
 representatives in Congress, foreign ambassadors, heads 
 of departments, cabinet ministers and diplomats were 
 present, while the gallery was filled with a brilliant as- 
 semblage of ladies. 
 
 Mr. Pinckney's argument displayed an order and 
 kind of power never before exhibited. He swept the 
 whole ground with his miraculous intellect and learn- 
 ing. His finely-chastened imagination was a powerful 
 auxiliary to his argument — the wizard that sent his 
 shafts of logic home. 
 
 When Mr. Emmet rose to reply, the bar and the 
 audience believed that he was about to undertake a stu- 
 pendous impossibility. He was known only as a law- 
 yer, giving all his energies and ambition to his profession 
 understanding the subtleties, but disliking the detail 
 of American politics. His logical powers were only 
 equaled by his graceful and modest diction, powerful 
 ill its purity and comprehension. 
 
 His reply to Pinckney was one of his most powerful 
 forensic efforts. He had surveyed the case from an em- 
 inence which commanded its full extent ; had scanned 
 the entire line of his antagonist's array with a bold and 
 vigorous grasp of thought ; had determined upon the 
 point of attack with the inward sagacity of a great cap- 
 tain. 
 
 It was an argument that Pinckney had not expected 
 to meet. It shook his own position to its very center. 
 In his reply he made a severe personal attack upon Em- 
 
174 LAWYER AND CLIENT. 
 
 met. It was characterized by that tremendous and 
 pungent invective, that merciless satire, in the use of 
 which he was excelled by no man. It took the bench, 
 the bar and audience by surprise. Every person in the 
 room glanced fearfully first toward the speaker and then 
 toward Emmet, who was the only emotionless person 
 in the room. Only once did his features lose their im- 
 perturbability, and that was when Pinckney, with 
 withering satire, referred to Emmet's imprisonment in 
 Port George, Scotland, and his release therefrom on 
 condition that he would leave England and Ireland for- 
 ever. Mr. Emmet had severely criticised the English 
 decision in the case of the Nancy, to which I have re- 
 ferred. Such was his hatred of England that he made 
 some bitter comments upon her maritime laws. This 
 gave Mr. Pinckney an opportunity to make the allusion 
 which I have described. "It is natural," said he, 
 "that the gentleman, whose arm has been raised in re- 
 bellion against the British government and his own 
 sovereign, and who for his treason was confined for sev- 
 eral years in an English prison, should dislike the laws 
 he himself had broken, especially as there is an eternal 
 interdict to his return to the land of his birth." Dur- 
 ing the utterance of these words the lines of Emmet's 
 mouth twitched nervously, a deep flush suffused his 
 face, and he involuntarily grasped a book that lay near 
 him on the table. In another moment, however, he re- 
 gained his composure, and the cold, almost listless look 
 returned, when every ear in the room was tingling at 
 the irony of the great speaker. 
 
 At last he closed, and Emmet rose to reply. Chief 
 Justice Marshall bent forward to. catch the first sen- 
 
WEBSTEK AND PINCKNEY. 175 
 
 tenees that fell from his lips, while the audience seemed 
 lost in eager expectation. For a moment "he stood 
 coiled and concentrated, indifferent to all but the power 
 that was within himself." He then proceeded with his 
 reply, cool, collected and unimpassioned. It was a 
 masterly conclusion to his unequaled opening — a subtle 
 concentration of the proposition he intended to estab- 
 lish. But he made no allusion to Mr. Pinckney's at- 
 tack. When, however, he drew his argument to a 
 close, he said : " And now, your honors, I have done. 
 I leave the further consideration of the case to liiy 
 learned and distinguished associate, Mr. Dallas. But 
 before I take my seat I ought, perhaps, in justice to 
 myself, to make some reply to the personal allusion 
 which my great opponent has deemed proper to make 
 concerning myself ; but this is a species of warfare in 
 which it is my good fortune to have had little expe- 
 rience ; it is one that I never waged. I am perfectly 
 willing that my learned opponent shall have all the lau- 
 rels he has sought to win ia waging it. When I came 
 to this country I was a stranger — nay, more, I was an 
 exile from the land of my birth, as dear to me as the 
 life-drops in my heart, but no dearer than this glorious 
 country of my adoption, in which I have found an asy- 
 lum and a home, and a welcome almost paternal ; in 
 whose courts of justice I have been warmly received as 
 an advocate from its bench and bar. ISTever, sir, until 
 this day, have I experienced the least unkindness from 
 my professional brethren. Your honors, I appeal to 
 you, have I done anythinghere to-day to merit a difierent 
 treatment ? I came here imbued with the deepest re- 
 spect — let me say reverence — for the learning and elo- 
 
17G LAWYER AND CLIENT. 
 
 quence of Mr. Piiickney, and he is the last man from 
 whom I should have expected personal observations of 
 the kind to which this court, this bar and this audience 
 have just listened. It is true I was for two years within 
 the walls of an English prison, because I dared lift my 
 voice in a court of justice in behalf of my countrymen 
 on their way to the scafEold and the halter, for the same 
 acts of patriotism that made this great republic all 
 she is. 
 
 "Should my opponent taiint me for this ? He whose 
 grand and sweei^ing eloquence receives its beauty from 
 his own burning patriotism, should sympathize with the 
 victims of oppression wherever found. For him I have 
 no indignant words, for I know that when a little reflec- 
 tion shall bring the events of this day before him, that 
 generosity and chivalry which has ever made him a fa- 
 vorite in the courts of foreign monarchs, and caused 
 him to be beloved at home, will bring before him the 
 injustice he did me to-day, with regrets which his noble 
 nature knows how to feel keenly. Besides, I have been 
 taught in early life never to return railing for railing. 
 In conclusion, let me say that the gentleman has filled 
 the highest office his country can bestow, at the Court 
 of St. James and in that of the Emperor of Russia. 
 Surely he could not have lost his innate courtesy in 
 those polished courts." 
 
 The profound silence which pervaded the court-room 
 during the delivery of this impressive speech continued 
 several minutes after Emmet took his seat. It touched 
 the great heart of Marshall ; it gained a generous re- 
 sponse from the bar and the brilliant audience ; it 
 placed a new wreath on the brow of the " exile lawyer." 
 
WEBSTER AND PINCKNEY. 177 
 
 Mr. Pinckney, whose eyes seemed riveted upon his 
 opponent during this address, arose and tendered him a 
 beautiful and generous apology. 
 
 "I cannot," said he, "allow this opportunity to 
 pass without doing justice to mv honored and distin- 
 guished opponent. The manner in which Mr. Emmet 
 has replied to my too hasty language, reproaches me for 
 its forbearance and urbanity, and could not fail to hasten 
 the repentance which reflection alone would have pro- 
 duced, and which I am happy on so public an occasion 
 of avowing. I offer him a gratuitous and cheerful 
 atonement; cheerful, because it puts me right with 
 myself, and because it is tendered not to ignorance and 
 presumption, but to the highest worth of intellect and 
 morals, enhanced by such eloquence as few may hope to 
 equal ; to an interesting stranger, whom adversity has 
 tried and aflB.iction struck severely to the heart ; to an 
 exile whom any country might be proud to receive and 
 every man of generosity would be ashamed to ofEend." 
 There were few eyes in the court-room that were not 
 suffused with tears during the delivery of this address, 
 unequaled in any language. It completely subdued the 
 audience until a murmur of applause broke over it. 
 The decision of the case was a brilliant triumph for Mr. 
 Emmet. 
 
 Daniel Webster often appeared in the New York Su- 
 preme Court, in the Court for the Correction of Errors, 
 and in the Court of Appeals. Though most of his life 
 was spent in great matters of state and diplomacy, he 
 was an accomplished lawyer, and entered into the 
 trial of causes something as liord Brougham did in 
 
178 LAWTEE AND CLIENT. 
 
 the midst of his career as the first of British statesmen 
 — with all his heart and soul. 
 
 He was associated with Thomas Addis Emmet in the 
 great case known as " The Sailors' Snug Harbor Case;" 
 his opponent was Williiiiu Wirt. 
 
 It was during the argument of this case that Mr. 
 Emmet was stricken with paralysis, and died in a yery 
 short time. 
 
 Webster was an accomplished equity lawyer, and 
 was very often engaged in the argument of cases before 
 the chancellor of New York, particularly Chancellor 
 Walworth. 
 
 We have described, in another part of this work, 
 Walworth's disagreeable habit of interrupting counsel 
 during the argument of cases before him. 
 
 On one occasion Webster was arguing a case on ap- 
 peal to the chancellor, who, with the commencement 
 of the argument, began by suppositions and questions 
 to interrupt him. 
 
 " Suppose, Mr. Webster," said the chancellor, 
 "that the trustees had applied the funds to the pur- 
 chase of the stocks, which you speak of ?" 
 
 Webster contracted his heavy, dark eyebrows and 
 turned his massive head with an aggressive movement, 
 and growled out : 
 
 " I am not considering that now ; I will ask your 
 honor to wait until I take up that question." 
 
 It was not long before the chancellor again broke in 
 upon him, when, to use the language of another, 
 "Webster, looking like an embodied storm, in mutter- 
 ing thunder, observed — with those large, expressive eyes 
 
WEBSTER AND PINOKNBT. 179 
 
 T/hicli seemed to have deep sockets for them — bearing 
 upon his honor — 
 
 " ' Will the learned chancellor allow me to be edified 
 after the adjournment of court ?' " 
 
 This silenced the loquacious chancellor, and "Web- 
 ster proceeded with his argument. Mr. Webster's man- 
 ner of speaking at the bar and in the Senate was al- 
 ways impressive and comnaanding. 
 
 Perhaps in no instance did his manner amount so 
 nearly to sublimity itself as it did when delivering his 
 unequaled argument in answer to Governor Hayne, of 
 South Carolina. 
 
 The scene in the Senate Chamber during its delivery 
 has been seized upon by a great painter, who has pro- 
 duced from it a painting full of thrilling interest. It 
 is twenty-two feet square, protected by a massive, beau- 
 tiful frame, on which appear in large letters the mem- 
 orable words with which Webster closed his sjpeech — 
 " The Union, now and forever, one and inseparable." 
 
 With vivid conception — with perfect truth to na- 
 ture — " with that equality of execution " which makes 
 a whole so predominate over its parts as to excite the 
 idea of uninterrupted unity, amid the greatest variety," 
 the United States Senate Chamber is represented as it 
 appeared during the delivery of a speech which ren- 
 dered its author a sovereign of eloquence. 
 
 Each Senator appears in his seat, easily recognized 
 by his form and the expression of his features. Cal- 
 houn, then President of the Senate — " the iron man 
 that looked as though he never was born," — whose sym- 
 pathies were strongly with Hayne, occupies the Speak- 
 er's chair. His brow still darkened by the frown that 
 
180 LAWYER AND CLIENT. 
 
 lowered menacingly over it, when suddenly interrupting 
 Webster, he said : 
 
 " Does the Chair understand the Senator from Mas- 
 sachusetts to say that the person now occupying the 
 Chair has frequently changed his opinion on the sub- 
 ject of internal improvement ?" 
 
 The courteous, dignified but adroit answer of the 
 senator, which followed this question, while it prevent- 
 ed further interruption, did not remove the cloud from 
 the brow of the great Carolinian. 
 
 "From nothing ever said to me, sir," replied Web- 
 ster, " have I had reason to know of any change in the 
 opinion of the person now filling the chair of the Sen- 
 ate. If," he continued, slowly and emphatically, with a 
 look full of meaning, perfectly understood by Calhoun, 
 " If any such change has taken place, I regret it, I 
 deeply regret it, sir." 
 
 Webster is represented standing nearly in front of 
 the Speaker's desk, dressed in a blue coat with gilt but- 
 tons, buff vest, white necktie and black pants. Every- 
 thing about him is so natural, so life-like, that one is 
 struck with reverence, almost with awe, for there 
 stands the matchless orator commanding "a list'ning 
 Senate," — the most peerless and august body in the 
 world. His left hand lightly touches his desk ; his right 
 arm is extended, his face is full of life, emotion ami 
 character. The vigor and fertility of conception with 
 which his intellectual impulses are delineated, give an 
 epic grandeur to his face, animated with the greatness 
 of the occasion and his subject ; while the features of 
 the Senators who surround him glow with irrepressible 
 
WEBSTEB AND PTNCKNEY. 181 
 
 emotion, and the vast audience, which fills every avail- 
 able space in the Senate Chamber, is as silent 
 
 " As the unbrcathing air, 
 When not a leaf stirs in the mighty woods." 
 
 A little to the right of Webster sits Mr. Hayne,' his 
 hands tightly clenched together, leaning on the table 
 before him ; his face, turned towards his great antago- 
 nist, is overspread with a troubled, anxious, gloomy 
 look. But the haughty curl still lingers on those lips 
 that recently portrayed with such animated eloquence 
 the glory of South Carolina, and swelled the pride of 
 her chivah-y with his chaste, beautiful and inspiring 
 laudations. There is Benton, egotistical, aspiring and 
 great, the friend, supporter and admirer of Hayne, who, 
 when the latter closed his speech, to which the Senator 
 from Massachusetts is replying, arose, "and with many 
 honeyed commendations of it, suggested that the im- 
 pressions which it had produced were too charming 
 and delightful to be disturbed by other sentiments or 
 other sounds, and proposed that the Senate should ad- 
 journ." There, too, near the center 'of the Senate 
 Chamber, sits Henry Clay, whose magic eloquence con- 
 vinced, charmed and subdued ; there, too, is Clayton, 
 Grundy, Bell, Bayard, Tazewell, and other great lights 
 of the American Bar and the American Senate in the 
 period of its gi-eatest glory. 
 
 Looking again at Webster, his form seems to dilate 
 with the magnitude of his subject — a subject that in- 
 volved the most important interests and even the dura- 
 tion of the republic. What orator of the past ever occu- 
 
182 LAWYEE AND CLIENT. 
 
 pied a place so cotispicuous, hazardous and responsible ? 
 " With a competitor unequaled in reputation, ability 
 and position ; a name to make still more glorious, or 
 lose forever; an audience comprising not only persons 
 of this country, most eminent in intellectual greatness, 
 but representatives of other nations, where the art of 
 eloquence has flourished for ages." Well might the 
 very hazard of the occasion stimulate him. He had 
 seen his friends from New England droop beneath the 
 powerful, vivid language of Hayne, by whom the star of 
 South Carolina was rendered brilliant in its ascension 
 above that of Massachusetts. He knew that the repre- 
 sentatives and people from the North felt humbled and 
 dejected. He knew they doubted his ability to reply 
 to a speech ajjparently so unanswerable. He had ob- 
 served the exultation of the, South Carolinians, "and he 
 awaited the time of the onset with stern, impatient Joy. 
 When it came, his spirits rose with the occasion ; he 
 felt like the war-horse of the Scriptures, who paweth 
 in the valley and rejoiceth in his strength — who goeth 
 out to meet the armed men ; who sayeth among the 
 trumpets, ha ! ha ! and who smelleth the battle afar, 
 the thunder of the captains and the shoutings." 
 
 History records no oratorical victory like that won 
 by Webster on this occasion. If Hayne closed his 
 speech in brilliancy and power, Webster closed his in 
 perfect triumph. It has been well said that the speech 
 of the latter is unequaled by the phillipic orations of 
 Demosthenes — the consular ones of Cicero — nor in what- 
 ever class the speeches of Burke, Pitt and Canning may 
 be placed — that it is imbued with the very essence of 
 immortality. 
 
WKBSTER AND PINCKNEY. 183 
 
 After the discussion between Hayne and Webster 
 closed, Mr. Benton, smarting under the defeat of his 
 Southern champion, closely, critically and bitterly as- 
 sailed "Webster's speech, applying to it that powerful 
 satire "which, at times, was at his command. Of Ben- 
 ton's effort it is sufficient to say that it is forgotten, 
 while that of "Webster, notwithstanding iis defects, 
 grows brighter with the flight of time. The scene 
 which the painting in Faneuil Hall represents is no em- 
 bodiment of an artist's dream. It is a scene which lives 
 in history, and is sent down to posterity by the historic 
 muse. In studying it there is something in the form 
 and features of Webster that causes one to think the 
 precise point of time which the artist has seized is the 
 period m the delivery of his speech when, in speaking 
 of the perpetuity of the Union, he alludes to Faneuil 
 Hall, " where American liberty raised its first voice — 
 where its youth and manhood were sustained and ma- 
 tured, there it still lives, where its youth was first nur- 
 tured and sustained, . . . and it will stand in the 
 end by the side of that cradle in which its infancy was 
 rocked." 
 
 The effect of this painting on the mind is perfect. 
 Everything is supplied which could be suggested by 
 historic facts in their minutest detail. The action and 
 attitude of the figures are natural — full of simplicity 
 and the style of truth. There was once, as it is said, a 
 painting in the gallery of one of the Dukes of Orleans, 
 representing the infant Moses about to be exposed by 
 his mother to the waters and monsters of the Nile. 
 The figures were painted with extreme vigor and force. 
 The face of the mother, averted and agonized, speaking 
 
184 LAWTEE AND CLIENT. 
 
 in all the eloquence of grief, the terrible necessity which 
 impels her to leave her infant there ; the departing 
 father, with eyes upturned to heaven, as if supplicating 
 its aid for the helpless boy that still clings to him in 
 terror. All this strikes the beholder with sorrowful in- 
 terest. It is said, in this absorption of human interest, 
 the exquisite background, with its wooded scenery and 
 architectural magnificence, is forgotten. Nothing is 
 observed but the thrilling scene in the foreground ; so 
 it is with the scene depicted by the painting in Paneuil 
 Hall. Webster, with his "presiding brow, his large un- 
 worldly eye, incapable to be fathomed, his lip and chin, 
 whose firmness is as of chiseled perfect marble, and 
 profound sensibility," absorbs all interest in the back- 
 ground, and centers all thought .upon him. The gods, 
 in their wrath, turned Niobe into stone, but she was 
 restored to life by the chisel of Praxiteles. So the form 
 of Webster was laid in the grave, but the pencil of the 
 painter rescued it from decay. 
 
SINGULAR CASE OF MISTAKEN IDENTITY IN 
 A CRIMINAL CASE. 
 
 Narrow Escape of an Innocent Man from Conviction of the 
 Crime of Bigamy — His Striking Resemblance to the Real 
 Criminal — He is Saved by a Singular Circumstance in the 
 Court-room. 
 
 The question of personal identit} is often one of 
 great difficulty and importance in the trial of criminals. 
 Indeed, it often enters into and embarrasses trial? of 
 civil actions. It has often been the case, that a person 
 has been indicted and brought to trial for a crime com- 
 mitted by another, owing to a striking resemblance to 
 the real culprit. 
 
 The great forger, Monroe Edwards, tried and con- 
 victed in New York city in 1841, for a stupendous 
 forgery, nearly escaped punishment because of his 
 strong resemblance to one Alexander Powell. 
 
 A case was tried at the York Assize in England, 
 where a man was brought to trial on the charge of bur- 
 glary, convicted, and sentenced to transportation, who 
 so perfectly i*esembled the real felon that a large num- 
 ber of very reputable citizens testified that they knew 
 him to be the real criminal. 
 
 But one of the most interesting cases of mistaken 
 identification on record was that of Joseph Parker, in- 
 dicted and tried at the New York Oyer and Terminer 
 in October, 1804, for bigamy, 
 
 [185] 
 
186 LAWYER AND CLIENT. 
 
 Parker was a resident of Haverstraw, N, Y., and 
 subsequently a resident of the city of New York. The in- 
 dictment alleged that "Thomas Hoag, otherwise Joseph 
 Parker, in the county of Rockland, now of the city of 
 New York, on the 8th day of May, 1797, at the city of 
 New York, was lawfully married to Susan Faesch; that 
 afterwards, to wit, on the 35th day of December, 1800, 
 at the county of Rockland, his said wife being then 
 living, he feloniously married one Catharine Secore." 
 
 On the trial of the indictment, under a plea of not 
 guilty, the following evidence was given touching the 
 guilt and innocence of the prisoner. 
 
 Hon. Benjamin Ooe, one of the judges of the Court 
 of Common Pleas of Rockland county, was the first wit- 
 ness called for the people, who testified substantially as 
 follows : 
 
 " I know the prisoner perfectly well ; he came to 
 Rockland to live in September, 1800, and there went by 
 the name of Thomas Iloag; there was a man with 
 him whom he called his brother, but they did not look 
 like each other at all ; the prisoner was in my employ 
 for about a month, and boarded at my house ; he was 
 at my table with me every day. On the 25th day of 
 December, in the forenoon, he came to me stating that 
 he was to be married that evening, desiring me to per- 
 form the ceremony ; he said his intended wife's name 
 was Catharine Secore ; in the evening I married him 
 to Miss Secore ; I am confident of the time, because on 
 that day one of my children was christened ; during 
 all the time Hoag remained in Rockland county I saw 
 him continually ; I am therefore as fully satisfied that 
 
mSTAKEN IDENTITY. 187 
 
 the pi-isoner is Thomas Hoag, as I am that I am Ben- 
 jamin Coe." 
 
 John Knapp testified as follows : " I am a resident 
 of Haverstraw, N'. Y. ; I know the prisoner ; first be- 
 came acquainted with him early in the year 1800 ; he 
 then went by the name of Thomas Hoag ; I knew him 
 intimately over a year, during which time I saw him 
 eyery day ; I attended his wedding ; he had a scar on 
 the bottom of his left foot ; one day he challenged me 
 to leap with him ; I accepted the challenge, and I out- 
 leaped him ; Hoag then said that he did not jump now 
 as far as he once could, because he received a severe 
 wound on his left foot by stepping on a drawing-knife ; 
 he then took off his shoe and exhibited the scar on his 
 left foot to me ; it showed itself very plainly ; I am 
 confident that the prisoner is Thomas Hoag." 
 
 Catharine Conklin was the next witness called by 
 the District Attorney. She made the following state- 
 ment : 
 
 " My maiden name was Catharine Secore ; I am now 
 the wife of one Philip Conklin ; I became acquainted 
 with the prisoner early in October, 1800, at an apple- 
 paring bee or party ; he had not been at Eockland 
 long ; was struck by his very handsome face and form ; 
 I saw him after that quite often ; he seemed quite as 
 ■well pleased with me as I was with him ; after a while 
 he asked permission to visit me ; I consented ; our 
 courtship ended in an engagement to marry, and on 
 the 25th day of December, 1800, we were united by 
 marriage ; he lived with me until the end of March, 
 1800, when he left me, saying lie was going to Boston ; 
 I did not see him again for two years ; I remember on 
 
188 LAWYER AND CLIENT. 
 
 the morning lie left he said he had something of im- 
 portance he wanted to tell me ; there was a person with 
 him whom I supposed was his brother, as he had been 
 introduced to me as such ; this man said : ' Tom, what 
 do you want to talk about that for ? Let that go 
 now.' 
 
 " He then said to me : ' Kate, I'll tell you that 
 some other time.' 
 
 " Hoag was an affectionate, considerate and good 
 husband, and I was tenderly attached to him ; I was 
 very proud of him, for he was, and is now, as all can 
 see, a very handsome man." Turning to the prisoner 
 she exclaimed, in an excited manner : 
 
 "Oh ! how often I have combed those dear locks of 
 yours, Thomas ! — how often I have held that dear head 
 in my lap." 
 
 " Have you any doubt, madam, that the person on 
 trial is the man whom you married as Thomas Hoag ?" 
 asked Mr. Riker, the District Attorney. 
 
 " Not in the least, sir ; I know he is the same 
 man." 
 
 Moses Anderson was called as witness for the people, 
 who said : 
 
 "I reside at Haverstraw, N. Y. ; I have lived there 
 since August, 1791 ; I am very well acquainted with 
 the prisoner ; he was introduced to me as Thomas 
 Hoag ; he spent much of his time at my house during 
 the year 1800 ; he was in my employ some time ; while 
 he was at Haverstraw I saw him constantly." 
 
 "Is there anything particular about the prisoner 
 that enables you to identify him ?" asked the counsel 
 for the people. 
 
MISTAKEN roENTITT. 189 
 
 "He had a scar on his forehead, made, as he said, 
 by the kick of a horse ; he had a singular mark on his 
 neck ; his speech was singular ; his voice is very much 
 like a woman '.s, and he has a hitch or lisp in it." 
 
 This testimony was strongly against the prisoner, bo- 
 cause they were peculiai-ities which he was known to 
 have. 
 
 The witness continued : " The prisoner also had a 
 scar on his left foot, between the ball and heel, made, 
 as he said, by stepping on a large and very sharp draw- 
 ing-knife ; I remember his marriage in December, 1800; 
 he took tea at my house that day." 
 
 "Are you sure, witness, #iat the prisoner has the 
 scar on his left foot that you have described," asked the 
 counsel for the defense. 
 
 "Yes, sir ; I am quite sure." 
 
 " Why are -you so sure ?" 
 
 "Because I have seen it." 
 
 " Under what circumstances, and when ?" 
 
 " I cannot tell exactly ; but I think he showed it to 
 me on one occasion when he had taken off his shoes, 
 sitting by the fire just before going to bed." 
 
 " Do you remember anything he said about it ?" 
 
 '■' Yes, he said something about Jumping with Knapp; 
 that Knapp beat him because he cut his foot once with 
 a drawing-knife. ' If it hadn't been for that,' he said^ 
 'I could have beaten Knapp easy enough.' I think 
 he then showed me his foot and the scar on it, and I 
 saw it once after that." 
 
 Lavinia Anderson gave the following evidence for 
 the people : 
 
 "I know the prisoner very well indeed ; his name is 
 
19 LAWYER AND CLIENT. 
 
 Thomas Hoag ; he has been an inmate of our house 
 much of the time since he came into the country ; he 
 and his brother used to some to our house every Satur- 
 day evening, and remain until Monday morning ; he 
 had his washing done there ; the prisoner, if he is 
 Thomas Hoag, has a scar upon his forehead and one on 
 his left foot." 
 
 The scar on the prisoner's forehead -was visible to all 
 who sat near him. 
 
 "About a year ago," she continued, "he had a law- 
 suit in the city of New York ; it was difficult to prove 
 that the prisoner here was the right man ; so much was 
 said about it that I was determined to see and judge 
 for myself ; I went to his house, but he was out ; I 
 found him not far off, and I spoke to him ; I knew him 
 at once by his voice, it was so like a woman's ; and then 
 he lisped, and I saw the scar on his forehead ; Hoag is 
 always shruggin' np his shoulders just as you see the 
 prisoner does ; it is quite impossible for me to be mis- 
 taken ; I know the prisoner is Thomas Hoag." 
 
 The testimony of Nicholas W. Conklin was pecu- 
 liarly strong against the prisoner in identifying him as 
 Thomas Hoag. 
 
 "The prisoner," said Mr. Conklin, "lived very 
 near me in Eockland county ; his name is Thomas 
 Hoag ; I cannot be mistaken ; he has been in my em- 
 ploy considerable, and I have, in one way and another, 
 had much dealing with him ; I also took very close no- 
 tice of him, as I understood he was paying his addresses 
 to Catharine Secore, and, being a stranger, I thought 
 I'd watch him ; he lived in one of my houses awhile 
 after his marriage with her ; I afterwards met him in 
 
MISTAKEN IDENTITY. 191 
 
 New York city ; I knew him immediately by his gait, 
 by his smile ; he has a very peculiar smile ; everything 
 about him was like Thomas Hoag, and it was Thomas 
 Hoag ; he appeared to be about twenty-eight years old, 
 and that is about the age of the prisoner." 
 
 Gabriel Oonklin, called for the people, stated as fc" 
 lows : 
 
 " I live at Haverstraw, and know Thomas Hoag; ne 
 was often at my house ; the prisoner is the same person, 
 unless there can be two persons so exactly alike that no 
 one can discover any difference between them ; the pris- 
 oner there must be Thomas Hoag, for he has a scar on 
 his forehead just as Hoag has, and another on his lip, 
 as yo» see the prisoner has." 
 
 Several other witnesses for the prosecution identified 
 the prisoner as Thomas Hoag, in a singularly intelli- 
 gent and striking manner. The evidence of all the 
 witnesses was corroborated by many convincing circum- 
 stances. 
 
 They were all subjected to the most searching and 
 exhaustive cross-examination, but nothing was elicited 
 to shake their testimony in the least. Indeed, it grew 
 stronger and stronger under the ordeal. 
 
 When the District Attorney rested, the counsel for 
 the defense, in opening his case to the jurors, said, 
 among other things : 
 
 " Gentlemen, the people have, as I hope to sliow 
 you by indubitable evidence, indicted and brought here 
 for trial the wrong man. The wretch who committed the 
 crime which has been proved to have been committed, is 
 still at large ; and unless I can satisfy you by evidence 
 which will overthrow the apparently powerful evidence 
 
192 LAWYER AND CLIENT. 
 
 of the public prosecutor, an innocent man will be con- 
 demned in his stead. Can you imagine anything more 
 terrible than this ? A felon at large, and an innocent 
 man, a husband and father, torn from his family and 
 incarcerated in prjson in his stead. But I hope to save 
 him from such an awful doom. Xhere is one circum- 
 stance — one fact — by which, if by nothing else, I expect 
 to do this. Never, in all my practice, in all my reading, 
 have I heard of a case like this." 
 
 Joseph Chad wick, the first witness called for the de- 
 fense, testified as follows : 
 
 " I have been acquainted with the prisoner several 
 years ; his name is Joseph Parker ; I reside in the city 
 of New York ; am a rigger by occupation ; the jDrisoner 
 follows the same business ; he has been in my employ a 
 good deal; he began work for me in September, 1799, 
 and continued to work for me until the spring of 1801 ; 
 during that time I saw him nearly every day." 
 
 The witness then produced his books, by which it 
 appeared that he paid Parker for his work as follows : 
 On the 6th of October, on the 6th and 13th of De- 
 cember, 1800 ; on the 9th, 16th and 28th of February, 
 and on the 11th of March, 1801 ; that from May, 1800, 
 until May, 1801, Parker lived in a house in New York 
 belonging to Jonathan Betts. During all that period, 
 and much of the time sincp, I have been well acquainted 
 with the prisoner. 
 
 Benjamin Bateman was called and sworn for the de- 
 fence. His statement was as follows : 
 
 "I live in the city of ISew York ; am well acquaint- 
 ed with Joseph Parker, the prisoner at the bar : I have 
 known him several years ; in the latter part of the year 
 
MISTAKEN IDENTITY. 193 
 
 1800, he was engaged with me in shipping some mer- 
 chandise to New London, Oonn.; we commenced our 
 engagement on the 16th of September, 1801, and con- 
 tinued together the remainder of the month ; I saw 
 him every day during all that time ; we were engaged 
 again together during all the month of December, 
 1800 ; we were also engaged most of the month of Jan- 
 uary, 1801 ; I know I was engaged with him on the 25th 
 of December, 1800, for I never before or sin.ce worked 
 on Christmas day, and I remember that Parker lived 
 that year in a house belonging to Jonathan Betts ; I 
 was one of the city watch, and so was Parker, and have 
 served with him from that time down to the present 
 time ; I don't think he has missed a day." 
 
 Elizabeth Mitchell, sworn for the defense, testiiied 
 as follows : 
 
 " I know the prisoner very well ; his name is Jose2oh 
 Parker ; during the years 1800 and 1801 he lived in a 
 house next to us ; it belonged to Mr. Betts ; I was very 
 intimate with him and his family ; he was one of tlie 
 city watch, and I used to hear him rap witli his stick 
 on his door for some one of his family to let him in 
 mornings ; I remember seeing him on Christmas day 
 moi-ning, 1800 ; 1 ofEered him some spirits to drink, but 
 he preferred a glass of wine, and I gave it him ; he 
 never lived but one year in Betts' house, and from that 
 time to the present I have been on terms of intimacy 
 with Parker's family." 
 
 Edward Mason was called as a witness for the de- 
 fense, and stated as follows : 
 
 "I have been acquainted with the prisoner for four 
 or five years ; his name is Parker ; I recollect he had 
 7 
 
194 LAWYER AND CLrENT. 
 
 been one of the city' watch ; I was also one of the 
 watch, and serTed with him for some time ; at first he 
 served as a substitute, and then a few days before 
 Christmas, 1800, he was placed on the roll in the place 
 of another watchman who was taken ill ; I am certain 
 this was the time, because that was the only instance I 
 ever served upon the watch." 
 
 Many other witnesses were called for the defense, all 
 of whom testified in the most positive manner that the 
 prisoner was Parker, and not Hoag. But what seemed 
 to seal his doom was, the number of circumstances that 
 identified him as the guilty man. The shrugging of 
 his shoulders, the woman-like sound of his voice, his 
 lisping, the scar on his neck and face, all perfectly ap- 
 parent. 
 
 The reader will remember that several witnesses 
 testified very positively to the scar on the left foot of 
 Hoag, made by the drawing-knife. 
 
 At the close of the evidence, and before counsel for 
 defense commenced his address to the jury, he proposed 
 that the prisoner should remove the shoe and stocking 
 on his left foot, and exhibit that member to the jury. 
 The district attorney, confident that the scars would 
 be as plain there as on the face and neck of the accused, 
 consented. 
 
 Amid the most profound silence and deep suspense, 
 the sheriff proceeded to bare the prisoner's foot, and lo ! 
 not a scar of any kind appeared upon it. The sugges- 
 tion was then made that the witnesses were mistaken in 
 the scarred foot. The other was then made bare, and 
 that was as free from scars as the other. 
 
 After the respective counsel had addressed the jury. 
 
MISTAKEN IDENTITY. 195 
 
 Hon. Jacob Eadcliff, who presided at the trial, in a 
 brief, pointed charge, said, among other things : 
 
 "Gentlemen, this is a most important and interest- 
 ing case. Its difficulty exists in the occurrence of a 
 question that often embarrasses courts and juries. It 
 is a case in which the court cannot aid your delibera- 
 tions, as it is one purely of fact, in which no question 
 of law arises for the court to instruct you upon. 
 
 " It is clear that there are two individuals who resem- 
 ble each other so very strongly that persons perfectly 
 well acquainted with them cannot distinguish one from 
 the other ; that one of these persons is guilty of the 
 crime charged in the indictment, there can be no doubt. 
 What intensifies the difficulties in this case is the fact 
 that the accused on trial has certain marks upon his 
 person, certain habits, certain peculiarities of voice, and 
 other appearances, which the real perpetrator of this 
 crime has. But you will remember that several of the 
 witnesses for the people testify very positively that the 
 man Hoag had a scar on the bottom of one of his feet, 
 made by a severe cut. This scar is described with great 
 minuteness by them. It appears, however, that the ac- 
 cused, whose feet have been exhibited here in court to 
 you, have no scar or blemish upon them. This is a 
 very strong circumstance, gentlemen, for your consid- 
 eration, and you will give it all the weight in favor of 
 the accused it demands. If it raises a reasonable doubt 
 — a doubt founded on good sense and Judgment — that 
 he is not guilty, he will be entitled to a verdict of ac- 
 quittal at your hands." 
 
 The jury retii'ed, and after a brief absence returned 
 with a verdict of not guilty, and Parker was discharged. 
 
196 LAWTEE AND CLIElfrT. 
 
 For many years he and Mrs. Conklin resided in the 
 city of New York. The latter never surrendered the 
 belief that she had been married to him. Occasionally 
 she would meet him and denounce him for his cruel 
 desertion and duplicity. She would say to her daugh- 
 ter, 
 
 "There, Sarah, is your father — your cruel, heart- 
 less father." 
 
 There is no doubt that the lady, down to the day of 
 her death, firmly believed that Parker was the father 
 of her daughter — the man that married her. 
 
HUNTED DOWN BY ENEMIES.— A HISTOEIC 
 TEIAL. 
 
 Force of Circumstantial Evidence — Fate of David D. Howe — 
 Dreadful Revenge aad its Provocation — John C. Spencer's 
 Great Argument — A Fearful Propliecy Fulfilled. 
 
 OiifE of the most important and interesting criminal 
 trials recorded in legal history was that of David D. 
 Howe, which took place at Angelica, New York, in June, 
 1824. Although generations hare passed away since 
 then, the testimony in the case, — the subtlest, and yet 
 the most convincing in the wide range of presumptive 
 evidence — still commands the attention of judges, law- 
 yers and legal writers. 
 
 It was a series of circumstances, many of them ap- 
 parently unimportant and shadowy, upon which the 
 people relied to convict the accused of a "black and 
 midnight murder." His execution was one of the first, 
 if not the first, that ever took place in the southern 
 tier counties. With matchless skill and fatal en- 
 ergy, that great lawyer, John 0. Spencer — the counsel 
 for the people — seized upon these circumstances, 
 grouped them together, until each tended to throw 
 light upon and prove the other, reaching a conclusion 
 that overthrew an ingenious hypothesis upon which was 
 founded a formidable defense. 
 
 The history of the causes which led Howe to the 
 commission of the crime of which he was accused, needs 
 
 [197] 
 
198 LAWYEE AND CLIENT. 
 
 little of the creative fancy of the tragic poet, or ardent 
 and tenacious imagination of the novelist, to render 
 liim almost as great in sufEering as was Hecuba or 
 Othello. 
 
 It is the history of an esteemed and prosperous citi- 
 zen, a beloved husband and father, surrounded by en- 
 vious, revengeful, determined and powerful enemies, 
 " who wrought upon him in the extreme," intent upon 
 his ruin. A long time, single-handed and alone, he 
 kept them at bay, returning heavy blows for thrusts 
 that were accelerating his doom. At last, hunted down 
 and driven to despair, there remained for him only the 
 hardening of his heart, and an uncontrollable desire for 
 vengeance. 
 
 David D. Howe was a native of Eensselaer cotinty, 
 N. Y., where, for several years, he was a prominent and 
 successful turnpike contractor. By industry, enter- 
 prise and economy he accumulated, for those days, a 
 very handsome fortune. About the year 1818, still in 
 the vigor of manhood, he removed with his family, con- 
 sisting of a wife and three children, to Allegany 
 county, settling near Angelica. He invested largely in 
 wild lands : in the purchase of which, and obtaining 
 title and possession thereof, he became tlie competitor 
 and rival of others, who had and were making similar 
 ventures. His activity and rare business qualifications, 
 while they led to success, created bitter enemies. 
 
 As it was impossible for him to avoid frequent col- 
 lisions, an open, uncompromising war soon ensued — a 
 war in which Howe was so powerfully defiant that his 
 enemies were compelled to combine against him, and a 
 hostile and dangerous organization menaced him, moved 
 
HUNTED DOWN BY ENEMIES. 199 
 
 by every effort, howeTer, unscrupulous and oppress- 
 ive, which influence, ingenuity and hatred could 
 devise. 
 
 In the purchase of land, and in other speculations, 
 Howe extended his credit, if not beyond his means, 
 quite beyond what prudence would have dictated, leav- 
 ing little margin for sudden demands which the vicissi- 
 tudes of business might make upon him. Through the 
 machinations of his enemies, such demands became fre- 
 quent and imperative. Taking advantage of any tem- 
 porary inability to meet them promptly, vexatious and 
 ruinous suits were brought against him. Actions of 
 every kind multiplied. Often there would be several 
 suits pending against him on the same day and in dif- 
 ferent and distant parts of the country : while on the 
 calendar of the Supreme Court of Bath and Angelica, 
 a lawsuit would be ready for trial. At the same time 
 many of these cases were malicious and Avithout merit, 
 and Howe instituted actions against their prosecutors 
 for bringing them. This only involved him deeper in 
 a sea of litigation — precisely what his enemies desired. 
 
 Then, again, the machinery in his mill would be 
 wantonly and secretly damaged, requiring several days, 
 often weeks, to put it in repair. His horses and cattle 
 were maimed and poisoned, and his farming utensils 
 destroyed . 
 
 But, as we have said, against all this he made a 
 manly and square fight ; when it was against him, ask- 
 ing no quarter ; when in his favor, giving none. Such 
 was his indomitable energy ; such his courage and sa- 
 gacity ; so strongly was he intrenched in the good will 
 
200 LAWYEK AND CLIENT. 
 
 of a large majority of the people, that for a long time, 
 unequal as it was, the result was doubtful. 
 
 But the combination against him was too strong, 
 too enduring. By degrees it began to tell on him ; 
 gradually he sank under the heavy, never-failing blows 
 of his persecutors. "^ 
 
 Judgments, which he was unable to satisfy, began to 
 accumulate against him. His property was sold at ruin- 
 ous prices to satisfy them. At last his own pleasant 
 homestead, where all his hopes and affections were gar- 
 nered, was swept away, and, with a breaking heart, he 
 saw his wife and children, with streaming eyes, depart 
 forever from that home where, for many years, they had 
 dwelt in the sunshine of mutual love. ' 
 
 It was in the autumn of 1833, that Church, one of 
 his most bitter and untiring enemies, accompanied by a 
 constable, went to the residence of Howe, for the pur- 
 pose of selling, on an execution, his household furni- 
 ture. In those days the liberal and merciful exemp- 
 tions, which now protect the poor man having a family 
 to support, were unknown, and Church, the only bid- 
 der at the sale, became the owner of nearly every article 
 of furniture and bedding that Howe possessed. He 
 even went into the garden and sold the vegetables grow- 
 ing there. 
 
 With tears in her eyes, and with entreaties mingled 
 with sobs, Mrs. Howe plead with the cruel creditor to 
 spare their vegetables. 
 
 " These are all we have left," she said. " Winter is 
 coming. Oh ! leave these — not for me or my husband, 
 but for my little ones, for oh ! I cannot, cannot see 
 
HUNTED DOWN BY ENEMIES. 201 
 
 them suffer. "Won't you spare them, sir ? They are of 
 little Talue to you. God will reward you if you will." 
 
 The only reply Church made to this touching appeal 
 was pulling up an onion and throwing it at her, ex- 
 claiming, " There, take that, and feed your brats with it; 
 when you peel it it will cause you to siied crocodile tears. 
 But, by G — d, it's all you'll get out of this garden." 
 
 Howe was not present: but when his heart-broken wife 
 related this unheard-of cruelty to him, his compressed 
 lips, pallid brow, flashing eyes, " each feature working 
 from his heart, "revealed the agony, rage and hate which 
 had taken possession of his whole being, and from that 
 moment his thoughts became passionately fixed on one 
 object, and that was revenge — to him a sacred call. 
 
 ■Silently, cautiously, adroitly, but surely, he 
 "moved, like a ghost, to his design." His heavy blows 
 fell as from the invisible hand of an avenging genii. 
 In the silence and gloom of midnight he glided about 
 like a grim specter, and when morning came the work 
 of the avenger was seen. Sometimes the lurid glare of 
 flaming buildings told that he had been at his direful 
 work ; but no clue, no circumstance, connected, him 
 with it, so deeply had he laid his plans of retribution. 
 Several months went on, and Howe saw two of his ene- 
 mies reduced to penury by heavy losses caused by un- 
 seen hands. 
 
 Only one of the persecutors was reserved for a dark 
 and bloody doom. When the scene in the garden was 
 related to Howe, the days of Church were numbered, and 
 a bloody avenger hovered around his pathway. Eifle in 
 hand, he watched his victim from thickets, as he passed. 
 Twice the deadly weapon was brought to bear on his 
 
202 LAWYEE AND CLIENT. 
 
 person when riding at twilight along a forest-skirted 
 road, toward his home. But, like Macbeth, Howe 
 seemed "infirm of purpose," or, to use his own words, 
 " Something seemed to say, !N"ot yet, not yet." 
 
 Church lived at Friendship, ten or twelve miles west 
 of Angelica, and I-Iuv,l'".3 residence was about half way 
 between the two villages. 
 
 One day, as the latter was on his way to Angelica, 
 he met Church in the road. They were both on horse- 
 back. 
 
 "Whose horse are you riding, Howe? I thought 
 the sheriff had cleaned you out — everything you had ? 
 It can't be anybody would trust you an hour with a 
 horse, so I guess you stole it. Why don't you ride out 
 of the county and never come back, you mean devil ?" 
 
 " You'll go out of the country before I do," said 
 Howe, and he rode away muttering between his teeth, 
 " his time has come, he will never see another sunrise." 
 He went to Angelica, and remained there until late in 
 the evening, conversing freely with his friends. About 
 nine o'clock he mounted his horse and rode rapidly 
 homeward. On his arrival there he took a loaded rifle 
 from its place of concealment, re-mounted his horse 
 and took the road to Friendship. Church resided in 
 the eastern part of the village, and his was the first 
 house that one passed on his way into the little town. 
 
 Leaving his horse several rods from the house, 
 Howe stealthily approached it, and rapped at the door. 
 
 " Who's there ?" asked Church. 
 
 " A friend," replied Howe, in an altered voice. 
 
 " What do you want ?" 
 
HUNTED DOWN BY ENEMIES. 203 
 
 " I haye a letterfor you, which I am directed to give 
 you personally," was the reply. 
 
 The unsuspecting man left his bed, and, without 
 stopping to dress, went to the door, opened it, and the 
 next moment he fell a bloody corpse to the floor. A 
 rifle ball had pierced his heart. The deed was done, 
 Tengeance was satisfied. Mounting his horse, Howe 
 fled homeward with the speed of the wind. But before 
 reaching the road he heard the cry of the new-made 
 widow, while shrieks of " murder !" rang out on the 
 night air. 
 
 The road was darkened on each side by a deep forest. 
 As he sped on, through the sighing and moaning of the 
 winter winds, as they tore through the leafless branches 
 that arched his way, " the beating of his heart cried to 
 him — murder !" His mind was fixed, " in an agony of 
 listening," on the dark woods around him, fearing that 
 the ghost of his victim would spring before him from 
 the thicket crying out for vengeance. 
 
 At last, recovering his self-possessiojn, he grimly 
 whispered to himself — " He deserved it ; he deserved it; 
 and- if I die for what I've done, I shall die happy, be- 
 cause he deserved it. He made myself, my wife and my 
 children beggars, and I've made him a corpse. Which 
 is the worst ? My fate, after all." 
 
 With such whispered thoughts as these he reached 
 his home, put out his horse, put his rifle in its usual 
 place, and went to bed, but not to sleep : for alas ! he 
 felt that he was a murderer ! 
 
 In the meantime all was consternation and frantic 
 grief at the home of Church. The report of the rifle, 
 followed by the shrieks of agony and cries of " mur- 
 
204: tAWTEE AND CLIENT. 
 
 der," brought the neighbors to the scene. At their 
 approach they found the door open, the body of the 
 murdered man lying across the sill, with the blood 
 flowing from a ghastly wound over his heart. 
 
 In a short time the whole village of Friendship was 
 aroused. Howe was at once suspected. With the early 
 dawn the sheriff was at his door armed with a warrant 
 for his arrest. He maintained a sullen silence, simply 
 saying, " I don't know why I am suspected." He 
 refused to answer any questions, and quietly submitted 
 himself to the custody of the ofBcor, who conducted 
 him to jail. 
 
 In due time he was indicted and brought to trial. 
 That learned and eminent jurist, William B. Rochester, 
 long a distinguished lawyer of the southern tier coun- 
 ties, residing at Bath, presided at the trial. 
 
 As has been said, John 0. Spencer conducted the 
 prosecution. The defense was committed to John A. 
 Collier, a name illustrious in the legal and political 
 history of the State, and to Fletcher M. Haight, a 
 young but brilliant member of the bar, then a resident 
 of Angelica. 
 
 The details of that extraordinary trial are too 
 lengthy to be described here. Suffice it to say that 
 Howe made a stubborn and powerful defense. There 
 was nothing but circumstances for the prosecution to 
 rely upon, so dexterously and swiftly had the murder 
 been committed. Among these circumstances were the 
 following : The ball which killed Church fitted the bore 
 of Howe's rifle : the patch surrounding it compared exact- 
 ly with those in his patch box. Wlien found the next 
 morning the rifle liad apparently just been discliarged. 
 
• HUNTED DOWN BT ENEMIES. 205 
 
 Howe's horse the next morning was still wet with sweat, 
 as though he had very recently been ridden with rapid- 
 ity. It Avas also proven that the prisoner was a bitter 
 enemy of the deceased, and had made threats that he 
 would do him personal injury. 
 
 On the other hand it was shown that the fatal ball 
 fitted several other rifles, and that the patch was the 
 common linen generally used for such purposes ; the 
 sweat on the horse was accounted for by the fact that 
 Howe rode home from Angelica late the night before. 
 It was also proved that Church had bitter enemies other 
 than Howe. 
 
 Mr. Collier brought to the discussion of these and 
 other facts in the defense, all his learning, ingenuity and 
 eloquence, while the impassioned but severe and chaste 
 elocution of Haight, strongly aided his distinguished 
 associate. With startling effect he descanted upon the 
 danger of relying upon circumstantial evidence to con- 
 vict persons charged with crime. 
 
 The effect which the arguments of these lawyers 
 made upon the public mind has seldom been equaled. 
 But the addi'ess of Mr. Spencer, as we have already 
 said, overthrew, in the minds of the jurors, the hypo- 
 thesis and argument of Collier and Haight. "He did 
 not indulge in flights of fancy, in touches of pathos, or 
 in bursts of eloquence ; but he enchained attention by 
 the facility with which he proved his positions and as- 
 sertions ; the sagacity with which he disentangled per- 
 plexed questions of facts, and 'reduced them to plain 
 problems of common sense." 
 
 It was on this trial that he made his celebrated com- 
 
206 LAWYER AND CLIENT. 
 
 parison touching the force of circumstantial evidence in 
 criminal trials. 
 
 " Suj^pose, gentlemen," said he, " that you are on 
 the shore of a large body of water, out in the depths of 
 which is a vessel, floating without anchor, in danger of 
 being carried away by winds or tide. You desire to 
 bring her to shore, where you wish to secure her. You 
 have no cable at hand with which you can do this, but 
 you have a number of small cords. Not one of them, 
 taken single, is strong enough to move her an inch. 
 Now what would you do if determined to draw her to 
 the shore ? You would form those small ropes into one 
 cable, strong enough to hold the vessel ; attach it to 
 her, then draw her to shore. Now this is precisely what 
 I propose to do here. The people have a large number 
 of cords or circumstances, no single one of which is 
 strong enough to bring this guilty man to Justice. I 
 propose to take each one of them up, test it thorough- 
 ly, and if it bears the test, take another, test it, and if 
 strong enough, place it with the first one, and to con- 
 tinue in this way until all are thoroughly examined and 
 tried ; then weave them into one cable, which I believe 
 will be strong enough for my purpose. It is your duty, 
 gentlemen, to applyyour keenest scrutiny to the manner 
 in which I discharge this painful and solemn duty, and 
 if in the construction of my cable you detect a single 
 weak or worthless strand, place your mark upon it, and 
 when the time comes for you to examine the whole fab- 
 ric, take out every worthless strand you find ; but re- 
 member, the cable is for you — for this court, as well as 
 for myself ; but above all, it is for the great and sacred 
 
HUNTED DOWN BY ENEMIES. 207 
 
 cause of justice, which protects us all from the hand of 
 the midnight assassin." 
 
 With almost blood-curdling imperturbability and 
 fatal sagacity, he proceeded to the task of forming his 
 dreadful cable, with such success that it drew David 
 Howe to the gallows. 
 
 Several weeks before his execution Howe made a 
 confession, in which the story of his wrongs, his ruin, the 
 sufferings of himself, his wife and his children, was told 
 wdth so much truth, touching simplicity and pathos, that 
 it aroused in the hearts of the people of all classes 
 emotions of sympathy seldom, if ever, extended to a 
 man condemned to die on the scaffold. So strong and 
 deep was the pojDular feeling in his favor that, is is said, 
 had he appealed to the people to save him, he would 
 have been borne in triumph from the hands of the 
 sheriff. 
 
 Standing on the gallows he addressed the vast multi- 
 tude assembled to witness his execution, in a speech. 
 !No one who heard it ever forgot it. It was pathetic, 
 unadorned eloquence, breathing resignation to his fate, 
 and submission to the majesty of the law, which he con- 
 fessed be had broken. As he dwelt on some of the cir- 
 cumstances that brought him to his doom, there were 
 few " whose eyes, albeit unused to the melting mood," 
 were not bedewed with tears. Before concluding, he 
 denounced one of the conspirators against him, — one 
 who had followed him with vindictive designs down to 
 his ruin, appearing as a chief and willing witness 
 against him on his trial. 
 
 " Fellow citizens," said Howe, in a voice that for 
 years rang in the ears of his auditors — "Fellow citizens. 
 
208 LAWTEE AND CLIENT. 
 
 standing on the brink of eternity, about to appear in 
 the presence of the Great Judge of earth and heaven, I 
 denounce him as a perjurer whom that Just Being will 
 punish here and hereafter. The mark of Cain is upon 
 him, there it will remain through all his days ; curses 
 will follow his footsteps : all who know him will look 
 upon him as a God-condemned liar !" 
 
 These dreadful words found a shuddering response 
 in the hearts of all who heard them, and they indeed 
 placed the mark of Cain upon him against whom they 
 were pronounced. Though he lived many years after, 
 though he possessed wealth and a pleasing address, 
 those followed him through life. He was always pointed 
 out to strangers as the man whom David Howe, with 
 h\H dying words, said was a perjurer^ Those words 
 were prophetic ; for that man went through life sad, 
 friendless, often deeply afflicted. Once he was arraigned 
 at the bar of justice to answer for a fearful and disgust- 
 ing crime, and was saved from conviction by a mere 
 accidental turn in the trial, and by the ability of his 
 counsel. 
 
 Such is the history of David D. Howe, a man 
 
 Whose heart was formed to softness — warped to wrong, 
 Betray'd too early, and beguiled too long; 
 Bach feeling pure — as falls the dripping dew 
 Within the grot; like that, it harden'd too; 
 Less clear, perchance, its earthly trials passed, 
 But sunii and chilled, and petrified at last. 
 
AUTHOE OP "THE BUEIAL AT SEA"— POET 
 AND LAWYER. 
 
 Circumstances under which the Poem was "Written — A Lawyer 
 and Journalist of Other Days — Literary Galaxy, Bryant, 
 Morris, Irving, Carter, Percival and Fay — The New York 
 Mirror. 
 
 Fjom his room to the deck they brought him 
 
 For his funeral rites, by liis own request. 
 
 With his boots and stock and garments on. 
 
 And naught but the breathless spirit gone; 
 
 For he wished a child might come aud lay 
 
 An unstartled haad upon his clay. 
 
 Then they wrapped his corse in the tarry sheet, 
 
 To the dead, as Araby's spices sweet. 
 
 And prepared him to seek the depths below. 
 
 Where waves never beat nor tempests blow. 
 
 No steeds with their waving plumes were here, 
 
 No sable hearse, no coffin'd bier. 
 
 To bear with parade and pomp away 
 
 The dead to sleep with his kiadred clay. 
 
 But the little group — a silent few, 
 
 His companions mixed with the hardy crew. 
 
 Stood thoughtfully around until a prayer was said 
 
 O'er the corse of the deaf, unconscious dead. 
 
 Then tliey bore the remains to the vessel's side, 
 
 And committed tliem safe to the dark blue tide; 
 
 One sullen plunge, and the scene is o'er. 
 
 The sea rolled on as it rolled before. 
 
 In that classical sea, whose azure vies 
 
 [309] 
 
210 LAWYEE AND CLIENT. 
 
 With the green of its shores and the blue of ita skies, 
 In some pearly cave, in some coral cell, 
 Oh ! the dead shall sleep as sweetly — as well 
 As if shrined in the pomp of Parian tombs, 
 Where the East and the South breathe their richest per- 
 fumes. 
 Nor forgotten shall be the humblest one, 
 Though he sleep in the watery waste alone, 
 When the trump of the Angel sounds with dread 
 And the sea, like the earth, gives up its dead. 
 
 This little poem, which has received such unquali- 
 fied admiration from the public, is from the pen of that 
 finished scholar and elegant writer, the late Nathaniel 
 H. Carter, who, to the soundest philosophy, the most 
 varied knowledge, iinited a simplicity and amenity of 
 disposition and manner, which gave great interest to his 
 conversation, and imparted lustre to his character. He 
 is remembered as the gifted and accomplished editor of 
 the New York Statesman, a journal eminent for the 
 ability with which it was conducted, and for its influence 
 in belles lettres and politics. 
 
 Mr. Carter was an associate and friend of those 
 illustrious artisans of our literature, Irving, Bryant, 
 Morris, Fay, Paulding, Halleck, Willis and others, 
 whose affluent minds, chaste and elegant productions, 
 have elevated and enriched our national standard of 
 letters, rendering the times in which they wrote an intel- 
 lectual era never to be forgotten. 
 
 The Burial at Sea was the last production of Mr. 
 Carter's pen. It is pervaded with a strain of tender 
 feeling and exalted resignation, poured out with such 
 abundance as to steal on the heart of the reader, 
 
POET AND LAWYEK. 211 
 
 gradually overflowing it witli sympathetic emotions. 
 It is his burial dirge, prepared by his own hand, at a 
 time when, as he believed, he was soon to sleep beneath 
 the waves of the Mediterranean. These circnmstances 
 alone give it peculiar interest. It was written in the 
 autumn of 1829, while its author was on a voyage to 
 Marseilles, with the hope of obtaining some relief from 
 the ravages of consumption in the soft and balmy at- 
 mosphere of Southern Prance. A few days before 
 reaching the. entrance of the Mediterranean, his disease 
 assumed such dangerous symptoms that his hour of 
 departure from earth seemed at hand, and that the deep 
 would be his burial place ; but he lingered a week after 
 landing at Marseilles, and then breathed his last.' His 
 funeral was attended by all the strangers at Marseilles, 
 and most of the native literati, for he was well known 
 by reputation to the citizens of that enlightened and 
 hospitable city. Mr. Carter was forty-two years of age. 
 His last poem was found among his papers after his 
 death. Mr. Pitch, a highly respectable American, then 
 residing at Marseilles, sent it to the editor of the New 
 York Mirror, and it was first published in the col- 
 umns of that elegant and ably-conducted journal. In 
 the language of George P. Morris, then one of its 
 editors : "Mr. Carter should be remembered, for he has 
 extended our literature, added a stock to our national 
 amusement and instruction. His writings have been 
 preserved with care, and are more numerous than even 
 his most intimate friends supposed. In some of his 
 less labored efEorts there is more of the gentle harmony 
 and lovely imagery of Goldsmith thau in his more elab- 
 orate productions." 
 
212 LA-WYEE AND CLIENT. 
 
 A minute inspection of them, howeTer, reTeals 
 faults ; but there are in them few sacrifices of good taste 
 made for the preseryation of symmetry and regularity; 
 there are no glittering morsels inserted extraneous to 
 the substance and the meaning; no attempt to please 
 the eye by smoothness and equality of surface. In his 
 poetical effusions, there is a mildly-tempered yet lively 
 fervor. One of his happiest poetical productions is his 
 poem entitled " Pains of Imagination," delivered at 
 Dartmouth College in July, 1824, before the Phi Beta 
 Kappa. So successful was this production that it is 
 considered by judicious critics as equal in power, beauty 
 and compass of thought to Akenside's Pleasures of 
 Imagination. But it must not be supposed that Car- 
 ter's talents were limited to poetry. His letters from 
 Europe, his political and literary essays, his reviews, 
 critiques and leading editorials reveal the opulence and 
 power of his mind, his research and learning ; they are 
 characterized by the same undefined delicacy of ex- 
 pression which enrich his poetry. Amid the bitter 
 political contests engendered by the collision of the 
 friends and enemies of Mr. Clinton, the latter found in 
 the pen of Carter a powerful support. It was, however, 
 stronger in defense than in the attack, which detracted 
 something from its political influence ; thought and 
 action which he always asserted enabled him to resist 
 the temptation — the contagion of politics which so often 
 infects the Judgment and candor of the noblest minds. 
 "If he had faults, and many of them, it will be for- 
 tunate indeed for those of us who may be charged with 
 less." But let us turn a moment to the early life of 
 this eminent, though unpretending, man. 
 
POET AND LAWTER. 213 
 
 He was born at Concord, New Hampshire, Septem- 
 ber 17, 1789. He was the son of a respectable citizen 
 of that town, who never dreamed that his boy had any- 
 distinguishing marks of talents about him, iintil he was 
 noticed by a committee who visited the small school in 
 which he was a student. Soon after this he was sent 
 to Exeter Academy, one of the best literary and scien- 
 tific institutions for elementary knowledge which has 
 ever been established in New England, which contains 
 the best that can be found anywhere. He soon became 
 a favorite with Doctor Abbott, the principal of that 
 institution, who occupied that situation for forty years, 
 and who was the schoolmaster of Cass, Webster, Salton- 
 stall. Carter and hundreds of others, not unknow'n to 
 fame. 
 
 From this institution Mr. Carter entered Dartmouth 
 College, and was at once ranked among the first of his 
 class, which rank he never lost while a student. He 
 never neglected a lesson in any branch of study, but 
 found time to devote many hours to writing, and was 
 at that early period considered a writer of uncommon 
 promise. After graduating, he took charge of an acad- 
 emy at Portland, Maine. In that pleasant and tasteful 
 town, he met with congenial spirits — men of talents, of 
 acquirements and social habits — among whom were 
 Freeman, Sewell, Storer, Willis and Wright. He re- 
 mained at Portland until 1817, when the charter of 
 Dartmouth College was modified, and the institution 
 made a University, when Carter was appointed a pro- 
 fessor of languages in the new University, in which 
 capacity he served with great credit to himself and 
 profit to the students, until the Supreme Court of the 
 
214 LAWYER AND CLIENT. 
 
 United States decided that the act creating the Uni- 
 versity was unconstitutional. 
 
 Tlie old college had not ceased to exist, and it re- 
 fused to surrender the libraries and other property in 
 its possession to the University. In the trying times 
 of crimination and recrimination which resulted from 
 this staie of affairs, Carter was always popular, for he 
 offended no one, and took every opportunity to concili- 
 ate the asperity of parties. At length, wearied with 
 the discords at Dartmouth, he left that institution and 
 visited New York city, with letters of introduction to 
 Josiah Ogden Hoffman, then one of the most distin- 
 guished lawyers and legislators of the State of New 
 York. He was invited by Mr. Hoffman to enter his 
 office as a student at law. The invitation was accepted, 
 and Mr. Carter remained with his eminent friend until 
 his admission to the bar. While a student with Mr. 
 Hoffman, Carter distinguished himself by his various 
 contributions to the press of the city, and especially in 
 his ably-written productions in defense of DeWitt 
 Clinton, who held Mr. Carter in high esteem, and who, 
 to use the language of a writer of that period, " treated 
 him with the utmost consideration and respect — treated 
 him as one of those who are made for something better 
 than the wear and tear of a politician." 
 
 Soon after his admission to the bar, Carter was in- 
 vited by the late Charles G. Andrews, who was then 
 connected with the Albany Register, a paper devoted to 
 the Clintonian party, to assume' the editorial control of 
 that journal. After some hesitation, the invitation was 
 accepted, and the Eegister passed under the control of 
 Carter. He continued to discharge his editorial duties 
 
POET AND LAWYEE. 215 
 
 at Albany until March, 1819, when, through his influ- 
 ence, the New York 'Columbian and the New York 
 Statesman were united under the name of the latter, 
 when he associated himself with George Prentice, a 
 practical and experienced printer, and father of the 
 late George D. Prentice, tlie distinguished editor of 
 the LouisTille Journal — Mr. Carter assuming the edi- 
 torial chai'ge of the paper, which became, as has already 
 been said, one of the leading journals of the time. 
 
 While at Albany, Carter became an intimate friend 
 of the late Colonel William L. gtone, distinguished as 
 the author of the " Life of Brandt," a work which gave 
 its author a high reputation as a writer. While Carter 
 was conducting the Statesman, Colonel Stone, who was 
 then a resident of New York city, and himself were en- 
 gaged in various literary and scientific matters. Daring 
 the Constitutional Convention of 1831, they reported 
 the debate and proceedings of that body, and subse- 
 quently, with Mr. Clark, published a volume of these 
 debates, which is now to be found in the library of most 
 of the lawyers of the State. The book does its authors 
 great credit, and it met the hearty approval of the mem- 
 bers of the Convention. 
 
 In the year 1825, Carter accompanied a son of the 
 late Henry Eckford, Esq., on a European tour. It 
 was while on this tour that he wrote his work exten- 
 sively known as "Carter's Letters from Europe." To 
 use the language of the New York Mirror, in speaking 
 of them : " They are written in an easy, flowing style 
 and with such religious exactness as he saw things, that 
 they were very popular, and were copied into the pe- 
 riodicals in every part of the United States. They are 
 
216 LAWYER AND CLIENT. 
 
 amusing and instructive — sometimes, perhaps, too 
 minute ; and in them, too, many things are explained 
 which might be presumed to be understood ; but, as a 
 whole, there is hardly a volume of travels extant among 
 as that contains so much information, in so gentleman- 
 ly a manner, as this work of Mr. Carter. The reader 
 rises from a perusal of it enlightened as to facts, and 
 refined by a pure current of virtuous feelings which 
 runs through the work, it might be said a religious 
 feeling, for he viewed things as a Christian." In the 
 letters written by Mr. Carter from Greece, there is a 
 singular interest and beauty, especially to the scholar 
 and lover of history. Every object in that classic land, 
 described by him, receives new embellishment from his 
 pen. In speaking of the poets and the sculptors of the 
 Greeks, he says : " It is exactly the same power of mind 
 displayed in their poetry as in their statues. Both are 
 exquisite imitations of nature ; the one in marble, the 
 other in words ; for it is evident that the Greek poets 
 have the same perfect idea of the subject they described 
 as their sculptors have of the objects they represented ; 
 and really, the true way to understand the plays of 
 Sophocles and ^schylus is to study them before the 
 groups of Niobe or the Laocoon." 
 
 Mr. Carter returned to his native country in the 
 summer of 1827, and resumed his, editorial duties, in 
 the midst of which he found time to revise his letters, 
 and prepare them for republication. At length he gave 
 them to the public in two handsome octavo volumes. 
 They were extensively sold and circulated, and are still 
 regarded with great favor by the public. "His health, 
 or a long time precarious, had now become quite fee- 
 
POET AJSTD LAWYER. 217 
 
 ble ; and he was impressed with the certaiutj' of speedy 
 dissolution. To avoid the suffering he knew be must 
 experience by a winter residence in New York, he vis- 
 ited Cuba in the autumn of 1825. From this island, 
 he contributed to several magazines of the day, but did 
 not enter upon any extended literary work. He re- 
 turned in the spring of 1828 with the intention of re- 
 suming his editorial labors, but he soon f )und that he 
 had not sufficient strength for this, and amused him- 
 self by taking a journey to his home at Ooucord, where 
 he was received with every mark of attention and re- 
 spect by the judiciary, the bar and the citizens gener- 
 ally. It was while on this visit that he wrote that 
 much-admired poem entitled "My Native Stream." It 
 was written under a strong conviction that this was his 
 last visit to the home of his youth, and is imbued with 
 that tender, yet pleasing, melancholy so natural to his 
 sensitive mind. He returned to New York, disposed 
 of his interest in the Statesman, and remained in that 
 city, too ill to engage either in the duties of his pro- 
 fession or in any literary pursuit, until the autumn of 
 1829, when he sailed for Marseilles, never to return. 
 He was forty-two years of age at the time of his death. 
 
 " Mr. Carter, though a profound scholar and an ele- 
 gant writer," said a distingtiished statesman, " was too 
 sensitive for a politician. He loved his friends too ar- 
 dently, and was too just to lash his enemies with suffi- 
 cient severity to please the public as a party writer, for 
 the feuds of political contests allow no gentle feelings — • 
 admit no tears but those of iron, such as Pluto shed 
 when he feared that power was passing from him.'' 
 
 Mr. Carter was a member of the New York city Bar. 
 
218 LAWYER AND CLIENT. 
 
 He studied his profession under the instruction of that 
 great and accomplished lawyer, Josiah Ogden Hoffman. 
 But the elegant and finished productions of his pen 
 called him away from his chosen profession to fields of 
 literature and the great duties of a journalist. He al- 
 ways, however, retained great admiration for his pro- 
 fession. He began a work entitled " Eeview of the 
 Law of Libel and Slander," but, his health failing, he 
 was compelled, with great reluctance, to give up the 
 work. His manuscript was, however, taken by another 
 legal writer, and made the foundation of a standard 
 work under the same title. 
 
 It was his intention to devote himself to the practice 
 of the law ; and, had he lived, his name would now be 
 found among the eminent lawyers of the past. 
 
 The writer has experienced some pleasure in his 
 attempt to preserve the memory of a venerated kinsman, 
 and one who was regarded, not only as a man of learn- 
 ing and intellect, but as a man of magnanimity and 
 Christian virtue, who believed that knowledge and in- 
 tellectual powers were imparted to him, not simply to 
 amuse men or to build up a reputation, but that he 
 might quicken and call forth what is elevated and divine 
 in his fellow-man, and thus to secure the only true 
 fame, the admiration of minds, which his writings 
 kindled and exalted. 
 
BULLDOZING WITNESSES. 
 
 A. Cross-examination Ad Nauseam Usque — Fate of tlie Bulldozer 
 — Amusing Description of a Trial. 
 
 A SUCCESSFUL cross-examination is one of the most 
 difficult and important duties which an advocate can 
 perform ; it requires a knowledge of human nature — of 
 the springs of human nature — a nice and subtle discrim- 
 ination. It is "the thumbscrew of the law." It pro- 
 ceeds on the assumption " that the party cross-exam- 
 ined has sworn to an untruth which he may be 
 compelled to vary." But it is often the means by which 
 trustworthy evidence is mischievously weakened or set 
 entirely aside. All persons who attend courts of justice 
 frequently observe instances where valuable and truth- 
 ful evidence has been neutralized or destroyed under a 
 vigorous, unscrupulous cross-examination. 
 
 A few weeks ago, while attending a circuit in one 
 of the western counties of the State, we witnessed a 
 striking instance of the baleful effects of this kind of 
 cross-examination. A respectable, conscientious, timid 
 and nervous man was called as a witness in an import- 
 ant case then on trial. He gave his evidence in a 
 straightforward, candid, convincing manner, and it was 
 very damaging to the plaintiff's case. The counsel for 
 the plaintiff was a man in every sense of the word qual- 
 ified to conduct a cross-examination ad nauseatn usque. 
 
 [219J 
 
220 LAWYER AND CLIENT. 
 
 Bold, brassy, conceited, impudent and subtle, few men 
 had nerves sufficiently strong to withstand his contin- 
 uous, artful and rapid fire of interrogations. He saw 
 the necessity of destroying the evidence of the witness 
 — saw, also, that he was made of the right material to 
 be bulldozed, perplexed, and his statements rendered 
 doubtful under a thorough and searching cross-exam- 
 ination, such as the counsel felt conscious he was able 
 to conduct. It was curious to observe the struggles of 
 the witness to escape the snares which his powerful and 
 wily interrogator laid for him ; but it was like a bird 
 fast becoming entangled in the snare of the fowler, ren- 
 dering itself more and more powerless with each effort 
 to escape. It was in vain that the opposing counsel, 
 with every subterfuge known to the skillful legal tac- 
 tician, attempted to rescue his witness from the toils of 
 his opponent ; all truthful as was the statement of the 
 man, it was doomed to be made equivocal, uncertain, 
 apparently contradictory and worthless, and injustice 
 triumphed over a meritorious cause of action. As has 
 well been said, results like this arise from fallacies, or 
 lapses of memory, undue excitement, seeing without 
 observiHg, knowing a part and imagining the whole, re- 
 ligious prejudices, political hatred and divergence from 
 literal truth. Then come timidity, fear that the exact 
 truth will not be told, and frequently conceited igno- 
 rance attempting to display an impossible superiority. 
 
 The incident we have just described reminds us of a 
 cross-examination that took place on'the trial of a man 
 charged with assault and battery, at Albany, several years 
 ago. A witness for the people, by the name of Utter, 
 had testified, on his direct examination, that he saw the 
 
BULLDOZING WITNESSES. 221 
 
 prisoner strike the prosecutor a heavy blow. Utter was 
 a respectable, candid man, desirous of telling the facts 
 within his knowledge just as they were. This he di'd 
 to the satisfaction of judge, jury and spectators. 
 
 The counsel for the defense, after running his right 
 hand through his hair, and giving the man a terrible 
 look, as much as to say, "Now, sir! your time has 
 come ! You have lied from the beginning to the end 
 of your statement, and I'm going to show you up," 
 commenced as follows : 
 
 " Witness, you have testified that you saw my client 
 attack Mr. Sabin, the prosecutor ?" 
 
 "Yes, sir ; I did so swear." 
 
 " Oil, you did, did you ? The court will observe 
 that this man belongs to one of two classes of witnesses, 
 and legal gentlemen especially dislike a very willing or 
 a very unwilling witness. Now, witness, hold up your 
 head, and don't look so guilty ! If you mean to tell the 
 truth, and not a falsehood, look me full in the face, 
 sir !" 
 
 " I expect to tell the truth ; that's my desire, and I 
 have told the truth." 
 
 " Oh, yes ; no doubt you wanted to ; but you have 
 been tampered with. Never mind," continued the law- 
 yer, winking at the jury ; " I'll try and get the truth 
 out of you, despite your cunning prevarication. Well, 
 sir, now let me ask you, in the first plaee, did you have 
 a square look at this affair ? Did you have an uncloud- 
 ed view ? Were, your optics undimmed ? Were your 
 eyes all right when you saw my client, previous to re- 
 sorting to corporal extremities, attempt to coerce and 
 
222 LAWTEE AND CLIENT. 
 
 preponderate upon the excited fears of the ' prosecutor 
 in this case ?" 
 
 " Sir, I do not quite understand you." 
 
 " You did understand me, sir. Don't say you 
 didn't. I ask you again, did you see any attempt to 
 aggravate the fears and enhance the apprehensions of 
 my client ?" 
 
 " I don't know ; I may, perhaps, not quite under — 
 what was you saying ?" 
 
 " Put your question in a plainer form, Mr. ," 
 
 said the judge. 
 
 " If your honor please, I asked the witness as to his 
 personal eyidence in this case, whether he himself saw 
 the offense committed — I mean, of course, the alleged 
 ofEense. I shall now put him a plain, direct and un- 
 avoidable question. I now ask you, witness, did you 
 have an unclouded view — were your optics undimmed — 
 when you saw this person, this individual, this prisoner 
 at the bar, raise his muscular arm and attempt to co- 
 erce and preponderate upon the already sufBciently ex- 
 cited fear of my client ?" 
 
 " Sir — preponderate ? Pre — I don't exactly — that 
 is — I — I — don't quite understand you." 
 
 " Yes you do, sir ! You can't get off in that way, 
 sir," said the lawyer. " The Court will observe," he 
 continued, " that the witness desires to prevaricate. 
 He delays an answer to my interrogation, which, as your 
 honor must have seen, is a very simple one, in order to 
 make up a reply that will hold water. Now, witness, I 
 ask you — look me in the face, sir — did you see this per- 
 son, this man^ this prisoner at the bar, did you see him 
 raise, as I have said, his muscular and outstretched 
 
EULLDOZmO WITNESSES. 223 
 
 arm and do the deed, the exaggerated deed, you have 
 sworn to ?" 
 
 "I am afraid I don't quite understand you ; what 
 was you saying ?" 
 
 The counsel now turned to the Court, in apparent 
 astonishment, saying : " Your honor, the witness don't 
 understand me !" 
 
 " I don't think he does understand you. If he does, 
 he is the only peison in the court-room that under- 
 stands you. Be more plain and direct with your ques- 
 tions. Use less circumlocution, and you will have no 
 difBculty," said the judge. 
 
 " What does your honor mean ?" 
 
 " I mean, sir, that you cover a great deal of bread 
 with a very little butter. Ask the witness if he saw a 
 blow given, and by whom," said the judge. 
 
 "Well, witness, did you see my client, the prisoner 
 here, strike the prosecutor ?" 
 
 " I did ; and he knocked him down." 
 
 "Now, sir," thundered the lawyer, "why did you 
 not say so before ?" 
 
 " 'Cause you didn't ask me." 
 
 Thus ended the cross-examination and the defense. 
 The prisoner was convicted. 
 
 Some years ago, a gentleman of high standing, who 
 had been a witness in an important trial, in writing a 
 descrijition of the case, said : 
 
 " Of all unfortunate people in- the world, none are 
 more entitled to sympathy than those who are compelled 
 to appear as witnesses in a court of justice. You are re- 
 quired to place your hand upon the Bible with a cross 
 on one side and none on the other. You are then ar- 
 
224 LAWYER AN!) CLIENT. 
 
 raigned before two legal gentlemen, one of whom smiles 
 at you blandly, because you are on his side, while the 
 other eyes you savagely, for the opposite reason. The 
 smiling gentleman proceeds to pump you of all you 
 know, and, having squeezed all he wants out of you, 
 hands you over to the scowling gentleman, who pro- 
 ceeds to show you that you are entirely mistaken in all 
 you have sworn to ; that it was impossible for you to 
 know any thing abe-ut the facts you have sworn to ; that 
 you never saw the defendant in your life ; in short, 
 that you committed flat perjury. He wants to know if 
 you have ever been in State prison, and takes your de- 
 nial with the air of a man who thinks you ought to have 
 been there, and then tells ycu, with an awe-inspiring 
 severity, to remember that you are under oath, and to 
 be very careful what you say. He wants to know if he 
 understood you to say so and so ; and then wants to 
 know if you meant something else ; if you didn't say 
 something else ; if you hadn't been impeached .several 
 times in your life. When you say you have not, then 
 he looks fiercely at you, as much as to say you ought to 
 have been impeached. 
 
 "Having bullied and scared you out of your wits, 
 and convicted you, in the eyes of the jury, of falsehoods, 
 he lets you go. By-and-by, every flunkey who happens 
 to dislike you, and every person with whom you have 
 had any misunderstanding, is put on the stand to swear 
 that you are a big scoundrel, and not to be believed 
 under oath. Then the opposing lawyer gets up, turns 
 around and points his finger at you, and proceeds to 
 paint your moral photograph to the jury, and presents 
 you as a character fit to be handed down to time as a 
 
BULLDOZING WITNESSES. 225 
 
 type of infamy ; as a man who had conspired againsb 
 innocence, virtue, truth, decency, and that yon justly 
 stand convicted of all these things before the jury. Tlie 
 judge, in his charge, tells the jury that, if they believe 
 your testimony, etc., etc., indicating that there is a 
 judicial doubt of your veraciLy ; and you go home to 
 your wife and family, neighbors and acquaintances, a 
 suspected man, all because you were compelled to be a 
 witness against somebody." 
 10 
 
A DEAMATIC SCENE IN THE UNITED STATES 
 SUPREME COURT. 
 
 Trial of Aaron Burr — Gvrnf- Stroke of Policy on the Part of 
 Burr — The Subpcena Duces Tecum for President Thomas 
 Jefferson — Singular Attack on Him — Its Result — Burr's 
 Triumph — His Boldness and Eloquence — Opinion of Chief- 
 Justice Marshall. 
 
 Chief Justice Marshall occupied the bench of the 
 Supreme, Court of the United States thirty-four years 
 and upwards. In addition to the very large number of 
 important cases decided by him during his long judi- 
 cial career, tiiere is a class of cases that will never be 
 forgotten by the American people. They are those 
 cases that involved elaborate discussions of constitu- 
 tional law of such magnitude that they attracted atten- 
 tention, not only in his own country, but in England 
 and in Continental Europe. Six years after he was ap- 
 pointed Chief Justice of the United States, he was called 
 upon to preside at one of the most extraordinary and 
 important trials on record — the trial of Aaron Burr for 
 high treason. If all his other judicial services were 
 forgotten, the manner in which he discharged his du- 
 ties on that trial would alone give immortality to his 
 name. 
 
 This took place at Richmond, Virginia, in June, 
 1807. Thomas Jefferson, then President of the United 
 States, anxiously desired the conviction of Burr. The 
 [336] 
 
A DEAMATIC SCENE. 227 
 
 hatred with which these men regarded each other was 
 embittered by political antagonism, and, on the part of 
 Jefferson, intensified by a firm belief in the guilt of 
 Burr. The trial continued for many months, calling 
 to the forum the ablest legal talents of the nation. The 
 numerous opinions and decisions pronounced by Mar- 
 shall during its progress, are still regarded as living, 
 vital principles of law. The learned and elaborate ar- 
 guments of "the counsel engaged have left an indelible 
 impression on our legal system, and are still read as 
 beautiful contributions to legal literature and legal 
 logic. 
 
 It is not our intention to enter lapon a full descrip- 
 tion of this great legal battle ; we shall only relate an 
 incident in it that will give the reader an idea of the 
 manner, personal appearance and judicial character of 
 Chief Justice Marshall, portraying, in the meantime, 
 the versatile strength and resources of Burr as a lawyer. 
 In doing this, we shall briefly allude to the counsel en- 
 gaged. 
 
 George Hary, the United States District Attorney of 
 Virginia, and acting Attorney-General, conducted the 
 prosecution. He was assisted by William Wirt and 
 Alexander MacEea. The former was then a brilliant 
 luminary, just rising over the legal world. He entered 
 the contest at the earnest request of Jefferson himself. 
 The various arguments made by him in the course of 
 the trial were distinguished by profound and indus- 
 trious research, ingenious and skillful arrangement, 
 embellished by a refined and brilliant imagination. His 
 speech containing that famous interrogatory, "Who is 
 Blennerhassett ?" is ranked with the classics, and has 
 
228 LAWTEB AND CLIENT. 
 
 been declaimed by sclioolboy orators, before admiring 
 friends, for generations ; and will be mouthed on aca- 
 demic rostrums for generations to come. Mr. MacEae 
 was then Lieutenant-Grovernor of Virginia, an able law- 
 yer, and one of the most sarcastic and bitter men of his 
 time. He regarded Burr as the cold-blooded murderer 
 of Hamilton, guilty of the crime of high treason, and 
 meriting death. Edmund Eandolph, Luther Martin, 
 John Wickham and Benjamin Botts, father of John 
 Miner Botts, assisted Burr. All the counsel ergaged 
 in the case had a national reputation. Of those en- 
 gaged in the defense, Luther Martin and Mr. Wickham 
 were the most distinguished. The latter, like Wirt, 
 possessed a swift, incisive insight and utterance, an ele- 
 gant diction — a wit as flashing and clear as it was sharp 
 and penetrating. Luther Martin was the most peculiar 
 man engaged in the trial, and most dreaded of all Burr's 
 defenders. He was a federalist of the deepest dye. He 
 entered the contest incited by a malignant hatred of 
 JefEerson, and brought to it great legal talents. Eeason 
 fell coldly, but effectually, from his lips, occasionally 
 relieved by impressive appeals and spirited eloquence. 
 His almost fierce and destructive cross-examinations 
 were a terror to his opponents, while his sarcasm and 
 invective scorched, tortured and excoriated. He be- 
 longed to the Maryland Bar, and resided at Baltimore. 
 All other lav.-yers engaged in the trial were Virginians. 
 But, amid the brilliant array of defenders and oppo- 
 nents, Aaron Burr stood pre-eminent, the acknowledged 
 leader of his own defense. He had subjected the case 
 to an exhaustive analysis, had developed precisely what 
 the prosecution was compelled to establish, in order to 
 
A DRAMATIC SCENE. 229 
 
 convict him, and had discovered the points where it 
 was weak and where vulnerable to an attack. Perfectly 
 familiar with every rule of evidence — cool, wary, self- 
 possessed, he joined these resources to a matchless gen- 
 eralship in the judicious selection of position, in well- 
 conceived and adroit plans of attack, in scanning the 
 entire line of his antagonist's array, and in selecting the 
 point of assault. 
 
 One strong, all-absorbing desire pervaded his whole 
 being, and stimulated his every action — that was, to 
 strike at the powerful man whom he believed was seek- 
 ing his life from political motives. His desire to do 
 this was often gratified, for occasions frequently oc- 
 curred during the trial that enabled him to attack his 
 apparently invulnerable enemy so successfully that his 
 blows wei"e keenly felt. 
 
 As the trial went on. Burr planned an attack, so 
 bold, so startling, that it electrified the public. After 
 he had fully matured his plan, he revealed it to his 
 counsel in a consultation that took place after court ad- 
 journed for the day, on the 8th of June, 1807. They 
 were astounded at the proposed movement. Even Lu- 
 ther Martin, who feared nothing, and who never hesi- 
 tated to strike wheii Jefferson was the subject, recoiled 
 before the bold plan of his leader. But Burr was firm, 
 inflexible and sanguine, and, after long deliberation, his 
 associates agreed to aid in the assault. 
 
 Burr had, by accident, discovered that certain docu- 
 ments and correspondence, of which Jefferson, by law, 
 was the legal custodian, could be made useful to him in 
 his defense. In pursuance of this object he had caused 
 these papers to be demanded of the President ; the de- 
 
230 LAWYER AND CLIENT. 
 
 mand was of course refused, and now he proposed to 
 move the court for a writ of subpcena duces tecum, com- 
 manding Jefferson himself to appear in court with the 
 documents in his keeping. 
 
 " Colonel Burr," said Wickham, after listening with 
 astonishment to this astounding proposal ; " Colonel 
 Burr, are you really serious in this ? Do you really 
 propose to make an attempt to bring the President of 
 the United States from Washington to Eiehmond as a 
 common witness ?" 
 
 " Certainly I do ; why not, Mr. Wicktam ?" was the 
 cool reply. 
 
 "Will Marshall have the nerve to grant the writ, 
 even if you are entitled to it ?" asked Martin. 
 
 " Do you not think I am entitled to it ? is it not a 
 writ of right ? and does such a writ know any distinc- 
 tion in person ?" asked Burr. There was no answer to 
 this question. After a few moments' silence Eandolph 
 said : 
 
 " Perhaps at this stage of the trial the Chief Justice 
 will not " 
 
 " If John Marshall," said Burr, interrupting him, 
 " comes to the conclusion that I am entitled to the evi- 
 dence which is locked in the archives at Washington, 
 and which Jefferson cannot let go out of his possession, 
 he will compel him to produce that evidence here. Mar- 
 shall will not allow even the President of the United 
 States to interfere with him in the discharge of his duty. 
 But the question is a great and a grave one. Study it, 
 gentlemen. It will test the strength and extent of the 
 two great powers of the government, the executive and 
 the judicial." 
 
A DRAMATIC SCENE. 231 
 
 "Who will make the motion ?" asked Randolph. 
 
 " I will," said Burr, " and close it, too, if you desire 
 me to do so. Bat, gentlemen, I shall expect your sup- 
 port. We shall have the whole force of the prosecution 
 against us. Hay will furnish the thunder, Wirt the 
 lightning, and MacRae the hurricane and the hail. So 
 we shall have our hands full." 
 
 " Speaking for myself and my associates, which I 
 venture to do," said Martin, "you shall have our entire 
 support. But when do you propose to make the mo- 
 tion ?" 
 
 "To-mori'ow morning, at the opening of court. I 
 will prepare the proper affidavits before I sleep. You 
 have time this evening and in the morning to prepare 
 yourselves," said Bui-r, and the interview ended. The 
 lawyers retired to their hotel, their client to his prison. 
 The night that followed was a sleepless one for Aaron 
 Burr. His elegantly-furnished rooms in Richmond 
 were amply supplied with law books, over whose pages 
 he lingered until long after the- state-house clock tolled 
 the hour of midnight. "The fires that burned in the 
 tough fabric of his physical and intellectual constitu- 
 tion" were as undimmed when the last page was turned, 
 the last note made, as when he entered on his labor. 
 Taking pen and paper, he addressed himself to the task 
 of preparing the necessary affidavits. It was not until 
 long after four o'clock in the morning that they were 
 completed, and then this man of iron threw himself on 
 his bed without undressing, and sought a short repose. 
 On the morning of the 9th of June, 1807, Colonel 
 Burr entered the court-room with a quick, nervous step. 
 A splendid suit of black set ofE his small but well-formed 
 
232 LAWYER AND CLIENT. 
 
 person ; his hair was elaborately powdered, and he wore 
 the queue so fashionable at that day. There was some- 
 thing peculiar in his manner — an unusual vivacity in his 
 eye as he saluted his own and opposing counsel. In 
 short, he appeared like a man about to enter upon some 
 momentous undertaking, conscious of his ability and 
 confident of success. From the opening of the trial to 
 the present moment, his undaunted self-possession and 
 dignified calmness inspired even those who believed him 
 guilty with an involuntary, irresistible respect, which 
 moral firmness always produces on the mind, forcing an 
 unwilling interest in his fate — even a half indulged hope 
 that he would escape. The counsel on both sides had 
 been in their places some time, surrounded by a gifted 
 and distinguished bar, and a vast audience. The gal- 
 leries were thronged with a brilliant assemblage of ladies, 
 who, it is needless to add, strongly sympathized with 
 the distinguished prisoner. 
 
 Chief Justice Marshall and Associate Justice Cyras 
 Griffin were on the bench. The former was then fifty- 
 two years of age, two years the senior of Burr. He was 
 tall, somewhat slender, but well formed. Thought and 
 mental labor had deeply written their traces on a phy- 
 sique striking beyond comparison. His forehead was 
 high and majestic, his eyes almost as brilliant and as 
 flashing as Burr's. Gray hairs were here and there scat- 
 tered among his dark locks, showing that "time had 
 slightly set its signet seal upon him." Finally, he was 
 personally as well as mentally formed to grace the bench. 
 
 "Burr's spirits are unusually animated this morning. 
 He must have dreamed last night of conquered prov- 
 inces in the southwest, fancying himself their Braperor," 
 
A DRAMATIC SCENE. 233 
 
 said MacRae to the Attorney-General, as Burr took his 
 seat. 
 
 " Perhaps so ; but I think he is still rejoicing over 
 the decision which Marshall gave in his favor yesterday. 
 He should rejoice, for it gave him a great advantage," 
 was the reply. 
 
 "I think," said MacEae, " that he has been planning 
 some new scheme to elude your grasp. The guilty 
 wretch, how full of resources he is ; but I think Wilkin- 
 son's testimony will nail him." 
 
 The day before the court sustained an objection made 
 by Burr to receiving evidence of treasonable intention, 
 until the prosecution first proved the commission of an 
 overt act of treason by the prisoner. This was the de- 
 cision to which the Attorney-General referred in his re- 
 ply to Mr. MacRae. 
 
 " Gentlemen, proceed; the court has waited for you 
 some time. Colonel Burr, said the Chief Justice. 
 
 " If your Honors please," said Burr, rising in his 
 place, " before entering on the usual business of the day, 
 permit me to say that we are aware of the existence of 
 certain documentary evidence of vital importance to the 
 defense, that is now in Washington, the legal custodian 
 of which is Thomas Jefferson, President of the United 
 States ; and upon afiidavits which I hold in my hand, I 
 ask your Honors to grant me the usual writ of subpcena 
 duces tecum, commanding him to produce those docu- 
 ments here in court, and to give testimony I'elative to 
 them." 
 
 He then proceeded to read the affidavits. Had a 
 thunderbolt come crashing through the walls of the 
 room it could not have been more startling than was 
 
234 LAWYER AND CLIENT. 
 
 this motion of Colonel Burr, to the Attorney-General, 
 his associates, and the audience. The former was aware 
 of the existence of the papers, but believed that Burr 
 had no knowledge of them. They knew that the mo- 
 tion was made in part to harass and perplex Mr. Jef- 
 ferson, and they had contested it with singular deter- 
 mination and zeal. After reading his afiBdavits, Mr. 
 Burr ojiened the argument. It was characterized by 
 philosophic method, an artist-like completeness — it was 
 reason, thought and logic, condensed to a bright focal 
 point, " his manner was dignity itself, composed, 
 courteous, confident and imjoressive." 
 
 He was followed by Luther Martin. In the course 
 of an exhaustive and profound argument he made a 
 bitter and scathing attack on Jefferson. 
 
 "This President of the United States," said he, 
 "has let slip the dogs of war — the hell-hounds of prose- 
 . cution — to hunt down Aaron Burr, and should he, who 
 has raised all this absurd clamor, pretend to keep back 
 papers so vitally necessary to this defense, where life is 
 at stake ? It is a sacred principle that in all such cases 
 the accused has a right to all and any legal evidence 
 which is necessary for his defense, and whoever with- 
 holds, willfully, information that would save the life of 
 a person, on trial for a capital offense, is substantially 
 a murderer, and will be so recorded in the register of 
 heaven." 
 
 The reply of Mr. Wirt to this extraordinary speech 
 was an effort which no man but he could make. His 
 powerful method of yielding logic, his great legal learn- 
 ing, his pleasing, practical language, and his graceful 
 manner enchained attention. From the severest reason- 
 
A DEAMATIC SCENE. 235 
 
 ing he passed with facihty to impassioned eloquence 
 — to deep denunciation and sarcasm. 
 
 Burr himself made the closing argument. It con- 
 trasted singularly with the exhaustive argument of 
 Wirt. It was unembellished, marked by profound, in- 
 dustrious research, ingenious and skillful in arrange- 
 ment, precision and force. His discussion displayed 
 that insight into the spirit and intent of the law of 
 treasonable acts — the distinction between treasonable 
 intent and overt acts, showing what proof he was en- 
 titled to give in explanation of the circumstances relied 
 upon by the prosecution, and that the evidence he 
 needed for this explanation was in the hands of Thomas 
 Jefferson. The latter had openly stated, doubtless with 
 truth, that there was not the least doubt of Burr's guilt. 
 This was seized upon not only by Martin, but by Burr 
 with great effect, at least so far as the audience was 
 concerned, proving that the animus of tlie President 
 against him was so great that "he had even assumed the 
 prerogative of a judge deciding the case in advance 
 adverse to him." Burr closed his argument with a short 
 but sarcastic consideration of Wirt's ai'gument. Never 
 was there a more bitter, withering review couched in 
 so few words. It was the application of caustic to a fair 
 and beautiful surface, transforming it into hideous de- 
 formity. 
 
 After due deliberation the Chief Justice announced 
 an elaborate opinion, in which he fully sustained Burr's 
 application for the writ. 
 
 " The court said he could perceive no legal objection 
 to issuing a subpoena duces tecum to any person whatever, 
 provided the case be such as to justify process. The 
 
23G LAWYEK AND CLIENT. 
 
 law is no respecter of persons. Every individual, no 
 matter how high or how low his condition, must give all 
 facts in evidence that may be required in a court of jus- 
 tice. As we see nothing in the publication of the docu- 
 ments that the law may reasonably demand of him. 
 To curtail the courts in their power to compel evidence, 
 would be subversive of the ends of justice. As we see 
 nothing in the publication of the documents required 
 here that would endanger the public safety, and as it 
 appears that they may materially aid the defense, the 
 writ must be granted." 
 
 The Chief Justice, in his opinion, decided that the 
 bodily presence of the President as a witness might be 
 compelled by a writ. Nothing could exceed the disgust 
 of Jefferson at the result of this motion. In a letter 
 dated June 17th, 1807, to the Attorney-General, he re- 
 fused to attend the court, urging the important duties 
 of his station as a reason. 
 
 "If," said he, "I obey this writ, I may be com- 
 pelled to go to Mississippi or St. Louis, or to any dis- 
 tant part of the nation, and thus it would be left with- 
 out an executive ; the place for the President is at the 
 seat of government." 
 
 But Burr gained his point. Pei-haps nothing tended 
 more directly to his acquittal than the position in which 
 he placed Jefferson by the favorable termination of thia 
 famous motion. 
 
lEISH LAWYERS. 
 
 Recollections of William Sampson, Author of " The Irish Emi- 
 grant." — His Amusing Defense of Dr. Little. — A Dis- 
 tinguished Physician with a Sable Wife. 
 
 In the spring of 18G5 several eminent Irish lawyers 
 who had been banished for devotion to the liberty of 
 their country, became residents of the city of New York. 
 As they were men of scholarly endowments, intimately 
 acquainted with the beauties and subtleties of the law — 
 as they united the poetic vehemence of Irish eloquence 
 with the grace and strength of American logic — it is not 
 strange that some of them became illustrious, and all of 
 them distinguished members of the American bar. 
 
 Among these was the celebrated William Sampson, 
 who stood nest to Curran, Grattan, and Bushe at the 
 Irish bar. He came to America at a fortunate era. 
 Alexander Hamilton had recently fallen in a fatal duel. 
 Aaron Burr, next to Hamilton the most conspicuous 
 lawyer of his time, had been ostracised by an indignant 
 public for killing his great legal and political rival in 
 the duel. Brockholst Livingston, James Kent, Ambrose 
 Spencer — great lights of the forum — had been elevated 
 to the bench. 
 
 Thomas Addis Emmet, another great Irish lawyer, 
 had taken Hamilton's place as a lawyer, and in a short 
 time ifter his admission to the bar of the State of ]!^ew 
 York, Sampson stood next to Emmet in forensic fame. 
 
 [337], 
 
238 LAWYER AND CLIENT. 
 
 As was said of Bushe, Sampson could state clearly, 
 reasou calmly, argue logically, and when transported by 
 the vehemence of his feelings and roused by his subject, 
 splendid imagery was at his command, and he could 
 soar above all other speakers. Like Bushe, he was a 
 wit as well as an orator, but his wit, like his eloquence, 
 seemed to flow from him without an effort. He knew 
 precisely when, where and how to use his wit. "At 
 times he squandered it with the profusion of Eabelais, 
 then his words were merry and then mournful as his 
 country's music." At the bar he was so lost in his 
 cause, he could think of nothing else ; in private life 
 the most social, exquisite, enchanting companion. 
 
 While he was in the zenith of his professional career, 
 two eminent opposing politicians quarreled ; some of 
 their friends proposed a settlement between them by 
 the code of honor, but, as they were very careful of 
 their persons, having an especial hatred of "villainous 
 saltpetre," they declined the duel — one on the ground 
 that his conscience would not permit him to break the 
 commandment "thou shalt not kill" — the other on the 
 ground that his attachment to the church to which he 
 belonged, and his devotion to his family were total in- 
 terdicts to using the pistol. Sampson, hearing of this, 
 sent them the following witty verse, which Bushe wrote 
 on a similar occasion, when two political Irish agitators 
 had quarreled, and who declined the duel — one on ac- 
 count of his wife — the other on account of his daughter. 
 
 "Two heroes of Erin abhorent of slaughter, 
 Improved oa the Hebrew command ; 
 One honored his wife — the other his daughter, 
 That their days might be long in the land." 
 
IRISH LAWYEES. 239 
 
 One of Mr. Sampson's most intimate friends in Ire- 
 land was the celebrated Peter Burrows^ sometimes 
 called the Goldsmith of the bar. One of his most elo- 
 quent efforts while in parliament — Sampson used to say 
 — was his defense of the illustrious Grattan when at- 
 tacked by Lord Castlereagh. " I know the man," said 
 Burrows, "the theme of universal panegyric, the 
 wonder and boast of Ireland, for his genius and ylrtue. 
 His name silenced the sceptic upon the reality of genu- 
 ine patriotism. To doubt the purity of his motives was 
 a heresy which no tongue dare utter. Envy is lost in 
 admiration and even those whose crimes he scourged 
 blended extorted praise with the murmurs of resent- 
 ment." 
 
 Sampson used to give the following description of 
 Burrow's person : 
 
 " His figure was very clumsy and he moved with un- 
 graceful gesture. There was no elegance in his exterior, 
 it was all inside. His features were short, but pleasing. 
 His voice was the 'worst, and seemed to come ab imo 
 peciore — from the bottom of his throat. It was not un- 
 like the puff of an asthmatic bellows, but his heart was 
 in his words and it was impossible to listen to his earnest 
 and impressive pleading without responding to the con- 
 viction of the inspired speaker." 
 
 "Burrows," says Sampson, "was one of the most 
 absent-minded men I ever knew." Commissioner Par- 
 sons was one of his most intimate friends, and was al- 
 ways in want of money. He once wrote Burrows a note 
 requesting the loan of twenty pounds, receiving the fol- 
 lowing reply : 
 
240 LAWYER AND CLIENT. 
 
 " Deae Parsons : Your note received. I enclose you 
 all the money in my possession — a ten-pound note — wish 
 it was more. 
 
 " Yours truly, P. Bukkows." 
 
 Now, instead of enclosing a note for ten pounds it 
 was a note for fifty, and its receipt was thus acknowl- 
 edged : 
 
 "Mr Deae Peter : I am greatly obliged to you, and 
 when I get able will pay you the fifty pounds. You can 
 afford to wait. 
 
 "Yours ever, J. Paesons." 
 
 Then came the following reply : 
 
 " Deae Parsons : It was thirty pounds instead of 
 fifteen, was it ? I am glad your memory is good, and 
 that you are so honest, or I might have lost fifteen 
 pdunds. All right ; you will pay when you get able, 
 will you ? This reminds me of eternity — or a small 
 edition thereof ; nevertheless shall always be happy to 
 oblige you. I mean just what I say. When you want 
 money call on me, for I know you'll keep a true account. 
 " Yours with esteem, P. Burrows." 
 
 Sampson's celebrated defense of Doctor William 
 Little, indicted for an outrageous asSault on his wife, was 
 a remarkable effort, in which learning, wit, ridicule and 
 assurance were strangely blended. After his indictment 
 the doctor was committed to jail to await the day of his 
 trial. While there he wrote his wife a cold, unrelent- 
 ing letter, in which he meant it to be understood that 
 
IRISH LAWYERS. 241 
 
 he was done with her forever. It contained no regrets 
 for his cruelty. Instead of showing any sorrow for what 
 he had done, he was obdurate and heartless. But 
 Sampson adroitly turned the letter to an admirable 
 though peculiar defense. So ingeniously did.-he con- 
 strue its meaning that the doctor, his wife and the jury 
 were made to believe that it was the offspring of repent- 
 ance — of deep affection, of sympathy, and that it pointed 
 strongly to amendment and reform. 
 
 A singular feature in the case was the complexion 
 of the lady, for it was of that sable hue which revealed 
 her African descent. But in the knowledge that his af- 
 fections were in every sense reciprocated, the doctor for- 
 got her color, so that whenever he referred to it, ho de- 
 clared that it deepened his affection for her. For a 
 time after their marriage their happiness was unalloyed, 
 biit, as months went by, the fascinations of the bride 
 began to attract other admirers, and the green-eyed 
 monster invaded the home of Di". Little. At first he 
 gently and lovingly remonstrated with his wife for her 
 innocent — as he called it — freedom with other gent'e- 
 men. The lady thanked her lord for calling her atten- 
 tion to her thoughtless behavior, assuring him that it 
 was mere thoughtlessness, that her affections were so 
 strongly fixed upon him that she could never, for a mo- 
 ment, think seriously of any other man, and the doctor 
 was happy again. . But " 0, frailty, thy name is wo- 
 man !" His happiness was brief, for he soon had the 
 most indubitable evidence of her unfaithfulness — and 
 what rendered the matter worse — her favorite was a 
 gentleman of her own color. As there was no doubt of 
 16 
 
242 LAWTEK AND CLIENT. 
 
 her guilt, the doctor lost his temper and gave her a 
 beating which nearly proved fatal to her. 
 
 He was indicted and brought to trial for an assault 
 ■with intent to kill, and in default of bail was committed 
 to jail. P. 0. Van Wick, Esq., a very able lawyer, was 
 then District Attorney of the city and county of New 
 York, and conducted the prosecution. Mr. Sampson, 
 as we have seen, appeared for the doctor, and his de- 
 fense was as singular as it was able and bold. After the 
 prosecution rested there seemed little hope for Dr. 
 Little. The people had established a case against him 
 so heinous that a term in the state prison seemed inevi- 
 table for the offender. Mr. Sampson arose, and, to the 
 astonishment of the bar, jurors and spectators, an- 
 nounced that he should call no witnesses for the defense. 
 "If your honors please," said he, in his most impressive 
 manner, " I propose to adopt a defense that will greatly 
 abbreviate this trial. I shall introduce no evidence on 
 the part of the prisoner at the bar ; I shall go to the 
 jury on the weakness of the people's evidence, and in- 
 sist that the prosecution has elicited a perfect defense 
 for my client. Your honors seem to be surprised, and 
 my learned friend, the District-Attorney astonished, 
 but you will change this surprise into another emotion, 
 that of sympathy for the accused, and belief in his in- 
 nocence." 
 
 Then turning to the jury, he addressed them in the 
 following singular but strangely effective manner : 
 
 " Gentlemen of the jury, I insist that a more tender, 
 considerate and affectionate husband than Dr. William 
 Little — the prisoner at the bar — does not exist j he is 
 one that ' loves not wisely but too well ; one not easily 
 
1EI8H LAWTEE8. 243 
 
 jealous, but being wrought, perplexed in the extreme,' 
 for one little moment forgot himself in his anxiety to 
 adjust a great — a terrible wrong. Who among us all 
 would not have done likewise ? therefore let us set down 
 nought in malice against him. ■ Othello committed mur- 
 der to avenge a fancied injury, and we all bewail his 
 fate. But here is a real wrong — a heartless invasion of 
 the sacredness of nuptial rights, and, instead of murder 
 most foul, only a piinishment is inflicted in love, af- 
 fection and a broken-hearted sense of duty. Black- 
 stone, — who, if we read history aright, was the tenderest 
 of husbands, — lays down the law favoring the right of 
 husbands to use the lash in chastisement of offending 
 wives, and thus the doctor is sustained by law, for none 
 can deny that the offense of his wife ' was rank and 
 smelt to heaven;' and then there is the justification, as 
 manifested by facts elicited by me on her cross examina- 
 tion. 
 
 " And now, gentlemen, I propose to show you that the 
 doctor's alleged ofEense was a dissembling of passionate 
 love — savoring of the memory of its 'young dream' — 
 — rather than wanton cruelty. I perceive you smile, 
 gentlemen — and your smiles are comforting, for they 
 show that the dark and sombre clouds — the lightning 
 and thunder, which my ^learned friend has brought to 
 bear on this case — have passed lightly over you, and that 
 a happy, genial sunlight pervades your minds, in which 
 sympathy and due consideration will fructify and ripen. 
 
 "As to the singular choice of my client, let me say 
 that there are causes which present such strange con- 
 trasts of light and shadow, such powerful effect of 
 chiaro-oscuro, that no language can highten their 
 
244 LAWYER AND CLIENT. 
 
 imagery. But still, to eyery imagination the subject 
 appears different. You, of course, do not know upon 
 what grounds my client may have placed his apparently 
 singular choice ; certainly, he has done no more than 
 'the gentle Desdemona' — the beauty and pride of 
 Venice, did — and as to his taste, who shall question it ? 
 since every man may exercise his taste to suit himself. 
 Kemember that what seems black in your eyes and mine, 
 may seem fair to another. The education of a physician, 
 gentlemen, is not that of a lawyer. The former ranges 
 through the varied fields of nature, bound by no narrow 
 limits. His genius is not cramped down to inflexible 
 precedents — it is not narrowed by ironclad statutes 'in 
 such case made and provided.' To the doctor here, the 
 great volume of nature has been widely opened. To 
 him, divine philosophy has taught that distinctions in 
 colors are merely meretricious, depending much upon 
 the manner in which the sun's rays strike them. Hence, 
 the sable prince of Morocco, in his appeal to the beau- 
 tiful Portia whose picture he sought — exclaims, 'Mislike 
 me not for my complexion, the shadow'd livery of thy 
 burnished sun to whom I am a near neighbor and near 
 bred.' Let me remind you that the whiteness of the 
 sun's light arises from, a mixture of all the primary 
 colors; that there are flowers — like the heart's-ease — 
 the petals of which are in different parts of different 
 colors — some darker, some lighter — yet all harmonious 
 in the same delicate and beautiful flower. Why then, 
 as we turn to the intellectual world, may not our ex- 
 quisite conceptions of beauty — descriptions of which 
 melt into emotions and contemplation bodying itself into 
 reality and developing beauty out of incongruity — be re- 
 
IRISH LATVYEES. 245 
 
 spected ? Why may not the color of the races blend in 
 society, even to its most delicate frame-work ? This 
 "woman, gentlemen, was my poor client's heart's ease ; 
 to liim, the deeper its color the rarer its combination of 
 beauty, saying nothing of its odor. Now, gentlemen, 
 if a late historical discovery can be relied upon — that 
 Adam — our common father — was a black man, a mar- 
 riage in his family, between black and white members 
 of it, can disgrace no man. Therefore the marriage of 
 Dr. Little with this sable lady -was perfectly proper. 
 ^Teither custom, philosophy nor theology forbid it. The 
 doctor loved his wife — still loves her — to him that love 
 is sacred, as is her person, 
 
 "Having thus disposed of this question of intermar- 
 riage between persons of opposite color, I proceed to 
 another part of my defense — intended by my client only 
 for love and privacy. I shall read you a letter which 
 no pen but that of a lover could have traced. It was, 
 of course, written within the walls of a dungeon. It 
 bears date the ith of June, and is addressed to Mrs. Wil- 
 liam Little as follows : 
 
 "'I received your kind letter of the first of June and 
 am very sorry that you are unwell and that my horse- 
 whip and fists were in some manner the occasion of your 
 illness. Perhaps, after all, your love of variety and 
 your preference of a person of your own race had some- 
 thing to do with the matter. Perhaps these were its 
 principal cause ; but I did not intend to refer to that, 
 as it is merely a matter of taste after all. I want my 
 coat ; I want my pants ,; I want my jacket at Mrs. 
 Simon's, as I have nothing to lie on in this languishing 
 place but my clothes.' 
 
246 LAWrEE AND CLIENT. 
 
 " Now, gentlemen, is not this repentance in sack-cloth 
 and ashes ? But see how his emotions deepen : 
 
 " ' You write tliat you'll not appear against me in court, 
 which will be best, as I have not forgotten my marriage 
 vow. The unhappy situation in which I am involved 
 by your hastiness devolves on me the necessity of ad- 
 dressing you, which cannot fail of impressing your mind 
 with uncommon seriousness, especially when you con- 
 sider how our ch.iracters are stigmatized by your impru- 
 dence. What's a horsewhip for ? Let your preference 
 of color and of odor answer.' 
 
 " Gentlemen, since these_ parties are so sensible of 
 their own imprudence let us not widen the breach be- 
 tween them, but pour balm into th'eir wounds and let 
 not the records of this court transmit to posterity the 
 quarrels of two who loved so dearly. 
 
 " ' You may, my dear Jane, assure yourself upon the 
 testimony of your dear husband, what has been taught 
 by the most bitter experience, that were our perplexities 
 known — which the embargo on our ports and the 
 troubles with England involves us in, it would ex- 
 tinguish — at least mitigate the keenness of a reflection 
 that we both shall endure to all eternity. Had I had an 
 embargo on my house, my dear Jane, your preference 
 for color and odor would not have been indulged in, 
 and you can see the happy result.' 
 
 " Gentlemen, how affectionate, how thoughtful is all 
 this. You will see he makfes one more demand upon 
 his wife, and that is he wants his diploma, the title of 
 his rank and honor. Hear him : 
 
 " ' I want my diploma ; I let you have it that ever- 
 
IRISH LAWYERS. 247 
 
 memoi'able moniJiig, when you ran after me, when I 
 came from — from — well, you know where ; likewise the 
 summons I had since I came here to attend the medical 
 society, which you got some how. I have nothing more 
 to observe. 
 
 ' Your affectionate friend, 
 
 ' Wm. Little, M. D.' 
 
 "Gentlemen, why should a man who loves like this 
 man, who regrets the past so seriously, and who promises 
 so solemnly and impressively never to repeat his little 
 fault, why should he longer be kept from the object of 
 his passionate love ? It was thus that Petrarch would 
 have written to his Liaura, thus Eloisa might have ad- 
 dressed her Abelard ; indeed, did she not write him, 
 cursing all laws but those which love has made ? Who 
 can say that Petrarch, under similar circumstances, 
 would not have used his whip and fists, particularly if 
 there had been in his Laura such a strange preference 
 for color and perfumery as the lady in this case ex- 
 hibited ?" 
 
 Here. Mr. Sampson turned to the lady, who was 
 bathed in tears, exclaiming, " Madam ! can you be so 
 black as to further jorosecute this man who loves you so 
 fondly, who dotes upon you and your charms, and who 
 lives only in his love for you ?" 
 
 "No ! No ! No !" she cried in agony of grief. "If 
 the judge up there will only forgive him I will. Oh ! 
 judge, do ! do forgive him !" 
 
 "Then," said Sampson, turning to the prisoner, 
 "Dr. Little, give the lady your arm." 
 
 The doctor obeyed. "Nowofficeis," continued the 
 
248 LAWYEE AND CLIENT. 
 
 lawyer, "make way for Dr. William Little and Lis wife 
 to pass !" There was something so commanding, so 
 singularly ludicrous, in this order that it was obeyed. 
 The District-Attorney, after an inefEectual conflict be- 
 tween mirth and decorum, was unable to interiiose any 
 objection to it, and Dr. Little, with his ebon wife on his 
 arm, walked out of the court house unmolested, while 
 the bar, jury and spectators were convulsed with laugh- 
 ter at this singular and amazing termination of this ex- 
 citing and important trial. 
 
 When order was restored, the District-Attorney said, 
 '■'Sampson, I shall indict you for aiding a prisoner to 
 escape." 
 
 " If you do I shall justify under the plea that I was 
 only aiding science and art in blending colors, evolving 
 perfumery and connubial affection," said Sampson. 
 
 A gentleman from the country visiting New York, 
 after listening to an Irishman's praise of Sampson as a 
 lawyer, asked, "What is his peculiar forte ?" This was 
 a puzzle to the Irishman, and the question was repeated 
 as follows : " What is Mr. Sampson most remarkable 
 for ?" 
 
 " Ah, I understand. It's with the jury, sir, the jnry, 
 sir." 
 
 "Well, how does he manage the jury ?" 
 
 " Troth, this way. He blarneys them ; that is, he 
 first butthers them up ; then he slithers them down, 
 and by that time, be jabers, they are for walking with 
 him straight to any verdict he is wanting — and no mis- 
 take." 
 
 Mr. Sampson was the author of that celebrated 
 book, "The Irish Emigrant," in which, as has been 
 
IRISH LAWYEKS. 249 
 
 said by another, there are ])awssages whose grand, sad 
 tones, like those which sweep across tlie psalms when 
 those of old were compelled to sing the Lord's song in 
 a strange land, with their harps ou the willows, and a 
 home pathos equaled only by Campbell in his " Exile 
 of Erin," causing the tears of Irishmen as well as 
 Americans to fall fast on its pages. 
 
CHIEF JUSTICE MARSHALL AND SOME OP 
 HIS ASSOCIATES. 
 
 His Early Struggle with Poverty and Subsequent Triumph — 
 A Tilt with Patrick Henry — -Marshall's Elevation to the 
 Bench — An Account of Judges Jay, Story, Patterson and 
 others — An Estimate of Marshall's Character, Attainments 
 and Position. 
 
 At the close of a pleasant day in the month of May, 
 1781, a young man, apparently twenty-four years of 
 age, weary and wayworn, arrived at the village of Fred- 
 ericksburg, on foot. Making his way to one of its prin- 
 cipal hotels, he asked of the landlord lodging for the 
 night. This person — a sort of aristocratic boniface, 
 after looking the young man oyer, coldly replied : 
 " No, sir ; you look too much like a pauper for me to 
 entertain." "But I am not a pauper, sir; and I will 
 pay you for my lodging. I have walked a long distance 
 to-day, and I am very weary," said the young man, a 
 flush overspreading his fine intellectual face, a face that 
 illy compared with his dilapidated attire. " I told you 
 that I could not keep you, and I shall not, and that 
 ends it." The young traveler, drawing a long sigh, 
 turned away and found a less pretentious but more be- 
 nevolent inn-keeper who furnished him accommodations 
 for the night. The next morning he continued his way 
 home, which was not far from Eichmond, Va. 
 
 Years sped on, bringing with them many changes. 
 [250] 
 
CHIEF JUSTICE MAltSIIALL. 251 
 
 They brought the young ti-aveler up from obscurity and 
 poverty to the highest honor which his native state 
 could confer on him, as Legislator, Minister of State, 
 Foreign Ambassador and finally to be the presiding officer 
 of the Supreme Court of the United States. His name 
 was John Marshall. " Let me say of him," said Daniel 
 Webster, "as the illustrious Fox said of Lord Camden, 
 ' Quern gratia honoris nomina,' — whom I name only to 
 praise." The incident we have related occurred when 
 young Marshall was returning home from Philadelphia, 
 where he had been honorably discharged from the Con- 
 tinental army. When he was twenty years old he en- 
 listed as a private in one of the Virginia regiments. 
 He was, for meritorious conduct, promoted to the rank 
 of first lieutenant, in which position he served out the 
 term of his enlistment. He had participated iu many 
 battles, and though young in years, was a war-worn vet- 
 eran, poor in purse, like all the discharged officers and 
 soldiers of the Revolutionary army. 
 
 John Marshall was born near Richmond, Va., August 
 19,1755. He was the oldest of fifteen children. His 
 father. Colonel Marshall, was a highly educated and 
 much esteemed Virginia gentleman. As his means were 
 limited it was impossible for him to give any of his chil- 
 dren the advantages of a collegiate education. But, 
 being au accomplished scholar, endowed with a happy 
 faculty for imparting instruction, he superintended 
 with much success the education of his children. The 
 future chief justice was a natural scholar. " His mind 
 grasped after knowledge with the intuition which causes 
 the tendril, buried in darkness, to lift itself up to the 
 pervading life-giving sunbeam." He knew how to adapt 
 
252 LAWYER AND CLIENT. 
 
 his mind practically to his studies, could turn his eyes 
 upon himself, and understanding the comparative ac- 
 tion of his own powers, knew which of them required 
 most tone and which, if any less ; thus avoiding the 
 sad mistake of cultivating the showy at the expense of 
 the solid. Under the tuition of his accomplished father 
 he acquired an excellent practical education. But inas- 
 much as he was not numbered among the alumni of any 
 college it has been said of Marshall, as Dr. Johnson 
 said of Shakespeare, " it is much disputed whether he 
 owed his excellence to his own native force, or whether 
 he had the help of scholastic education, the precepts of 
 critical science and the examinations of ancient authors." 
 It is safe to say that Mai'shall owed his intellectual emi- 
 nence not only to his native force, but to the help of 
 "scholastic education." 
 
 As Shakespeare's works " describe an extraordinary 
 species of mind, perplexing to all modes of analysis, 
 all powerful and excursive," so Marshall's legislative 
 speeches, judicial opinions and other productions describe 
 an equally extraordinary species of mind, and an intel- 
 lect of surprising strength and subtlety. His amplitude 
 of mind rendered him in legislation the equal of Chat- 
 ham, Pitt and Fox ; in jurisprudence the peer, if not 
 the supei-ior of Mansfield and Ellenborough. Notwith- 
 standing his apj)arently prosaic nature, he was passion- 
 ately fond of poetry, and in his earlier years courted the 
 poetic Muse with considerable success, though few of 
 his efiusious were ever j)ublished. Though his writings 
 display little poetic embroidery, there flowed through 
 them a beautiful classical coloring. Pope was his 
 especial favorite among the British poets. Marshall 
 
CHIEF JUSTICE MAESHAI.L. , 253 
 
 could haye adopted Byron's views of Pope, who said : 
 " I have always regarded him as the greatest name in 
 our poetry. He is a Greek temple with a G-othic cathe- 
 dral on one hand and a Turkish mosque and all sorts of 
 fantastic pagodas and conventicles about him. You 
 may call Milton and Shakespeare pyramids, but I much 
 prefer the Temple of Thesus or the Parthenon to a 
 mountain of burnt brick." At the age of twelve he 
 had copied several times all of the "Essay on Man," 
 and could repeat page after page with perfect exactness, 
 from the works of Shakespeare, Dryden, Pope, Camp- 
 bell and many other standard poets. We may describe 
 Marshall's manner of reading as Dr. Prettyman did the 
 youthful Pitts : " He was a nice observer of the dif- 
 ferent styles of the authors he read. When alone he 
 dwelt upon striking passages of an orator or historian, 
 and noticing their turns of expression, mai'king their 
 manner of arranging a narative or explaining their 
 avowed or secret modes of action. It was a favorite em- 
 ployment of his to compare opposite speeches on the 
 same subject, and to exaime how each speaker managed 
 his own side of the argument or answered the reasoning 
 of his opponent. This severe training prepared him to 
 enter with ease and delight into the most abstruse ques- 
 tions in political and moral science and in jurispru- 
 dence." 
 
 While stationed with his regiment in Philadelphia, 
 he managed by the most severe economy to save enough 
 of his pay to attend a course of law lectures ; and it 
 was this which directed his attention to the legal pro- 
 fession. On his return home, young Marshall continued 
 his legal studies with such success that in June, 1780, 
 
254 LAWYEE AND CLIENT. 
 
 he was admitted to the bar of Virginia ; but instead of 
 immediately entering on his practice, in obedience to 
 another call for troops to oppose the invasion of Arnold, 
 he returned to the army. That invasion terminated, 
 he returned home and entered upon the practice of his 
 profession. He distinguished himself as a terse, logical, 
 pleasing speaker at a famous debating club in his native 
 town. Here he exhibited that uncommon talent for 
 reply — that geometrical method and clearness which 
 subsequently distinguished him in legislative bodies. 
 To such a body he was soon called. In the year 1783, 
 at the age of twenty-seven, he was elected member of 
 the Virginia Legislature. In the autumn of that year 
 he was appointed a member of the Executive Council 
 of that State. In 1787 he was elected as representative 
 of the city of Richmond to the Legislature, and con- 
 tinued to occupy that station for three successive years. 
 So distinguished was his career on the floor of the Legis- 
 lature that upon the recall of Mr. Monroe, as minister 
 to France, President Washington solicited Marshall 
 to accept the appointment as his successor, but he re- 
 spectfully declined. In 1799 he was elected and took 
 his seat in congress, where his commanding talents were 
 at once recognized. But he did not retain his seat long 
 in that body, for in 1800 he was appointed and con- 
 firmed Secretary of War. Before he could enter upon 
 the duties of that position there was a vacancy in the 
 office of Secretary of State, aud this exalted place 
 was tendered him. He accepted it, and entered upon 
 its duties, but only for a brief period. Early in Decem- 
 ber, 1800, Oliver Ellsworth, Chief Justice of the United 
 States, was made ambassador to France, and on the 
 
CHIEF JUSTICE MARSHALL. 255 
 
 31st day of January, 1801, John Marshall was appointed 
 Chief Justice of the United States in his place. It 
 has been said that few of the earliest and most illus- 
 trious chief justices and of their equally illustrious 
 associates, were distinguished lawyers. An eminent 
 statesman of Marshall's time, speaking of him, said, 
 " One of the greatest of his merits is that he is not over- 
 learned in the law." It is true that his experience at 
 the bar was comparatively limited ; but brief as was his 
 legal career he had distinguished himself as the ablest 
 constitutional lawyer of Virginia. 
 
 In the year 1788, while still a member of the Vir- 
 ginia Legislature, the all-absorbing question before the 
 people of that State was that of the adoption of the 
 Federal Constitution. Marshall strongly favored its 
 adoption ; but there was another illustrious orator who 
 opposed its adoption ; this was Patrick Henry, who 
 threw the whole weight of his great influence against 
 the Constitution, and became the leader of that pow- 
 erful party who desired its rejection by the people. 
 Marshall was the leader of an equally powerful party 
 who agreed with him on this great question. The de- 
 bate on this question in the Virginia Legislature was 
 unequalled in brilliancy, in research and depth of argu- 
 ment. Henry was impassioned, brilliant, abounding in 
 elegant sallies of wit and effectual logic. If at times 
 his language was too exuberant, still it was vigorous, 
 and reason shone out of it like a crystal. Though 
 Marshall was not lofty or imaginative, he possessed 
 oratorical powers which made him a fully armed chief- 
 tain in debate, capable of successfully coping with hia 
 illnstrious opponent. The contest was long and doubt- 
 
256 LAWYEE AND CLIENT. 
 
 ful ; when the final vote was taken Marshall was victo- 
 rious, but only by the small majority of ten. It was 
 enough, however, for it was generally conceded that 
 through his influence, labors and eloquence Virginia 
 adopted the Federal Constitution. Such was the expe- 
 rience of Jolin Marshall when he entered upon his. 
 duties as Chief Justice. 
 
 • Down to the breaking out of the rebellion, the Chief 
 Justices of the United States were Jay, of New York ; 
 Eutledge, of South Carolinia ; Marshall, of Virginia, 
 and Taney, of Maryland, John Jay — a name of which 
 the Emj)ire State has always been proud — was not only 
 its first Chief Justice, appointed by an ordinance of 
 convention, commissioned by council of appointment 
 October 17th, 1777, but he was also, as we have seen, 
 the first Chief Justice of the Supreme Court of the 
 United States. Among the most distinguished Associate 
 Justices of the Supreme Court of the United States 
 during the period we have named, were Cushing, Brock- 
 hoist Livingston, Judge Paterson, Bushrod Washington, 
 and Joseph Story. It is proper to add that Eutledge, 
 appointed Chief Justice in the place of Jay, ne\"er took 
 his seat, having been appointed to a foreign embassy 
 soon after his nomination as Chief Justice, and Justice 
 Ellsworth was appointed in his place. It will be seen 
 that Chief Justice Marshall, " like ancient Glanville and 
 modern Erskine, marshalled squadrons before he mar- 
 shalled pleadings." 
 
 It is a singular fact in history that the appointment 
 of Joseph Story, as Associate Justice of the Supreme 
 Court, was made under circumstances similar to those 
 which attended the recent appointment of Mr. Justice 
 
CHIEF JUSTICE MARSHALL. 2o ( 
 
 BJatcliford to the same position. President Madison 
 had nominated John Qnincy Adams, who had recently 
 been Minister to St. Petersburg, to the office of Asso- 
 ciate Justice, and his nomination was ratified by the 
 Senate. But both nomination and ratification were 
 made without the knowledge of Mr. Adams. When 
 they were made known to him, after mncli deliberation 
 lie declined the honorable position tendered to him. 
 The political opponents of the President and Mr. 
 Adams sharply criticised the motives of this appoint- 
 ment as being a part of some dexterous political ma- 
 nceuver. But as Mr. Adams was a prominent aspirant to 
 the presidential chair he declined the honors proffered 
 him, preferring to be Chief Magistrate of the nation 
 rather than an Associate Justice of the Supreme Court. 
 It was said that Mr. Madison tendered him the position 
 in the hope of removing from the field a powerful con- 
 testant for presidential honors. 
 
 It was with much difficulty that Mr. Madison selected 
 a candidate in the place of Mr. Adams ; but at last his 
 attention was directed to Joseph Story, of Salem, Mass. 
 Mr. Story was then a young lawyer, who had served 
 with some distinction as a Representative in Congress 
 fgr a jDai't of one term. He had exhibited marked 
 ability, however as a Speaker of the House of Represen- 
 tatives of Massachusetts. " Learned, indefatigable, no 
 man living has contributed more to legal literature, 
 and no member of the Supreme Court has for so many 
 years left his impression more distinctly on its proceed- 
 ings. His written works on Legal Science, on Consti- 
 tutional Law and Legal Literature converted English 
 9 
 
258 LAWYEB AND CLIENT. 
 
 and European contempb into admiration of all the de- 
 partments of American law, learning." 
 
 Judge Chase, it is said, was in the habit of telling 
 
 the New England Bar, that their appeals from one court 
 
 -to another made every case a " rubber," so that the 
 
 winning party must win two out of every three games, 
 
 or he lost the stakes. 
 
 Judge Washington was small in person, and nearly as 
 negligent in dress as was Martin Grover. In the early 
 part of his judicial career he lost the sight of one of his 
 eyes by intense study. Like Martin Grover, too, he 
 was immoderately fond of tobacco ; when an argument 
 commenced he took an immense quid, and if the dis- 
 cussion was lengthy he acquired patience and attention 
 by frequently stocking his mouth with a new supply of 
 the weed. "If," said a facetious lawyer, "Justice 
 Washington is not famous for his quiddities of the law 
 he certainly is for his quids and quiddities of tobacco." 
 Judge Washington was a nephew of the illustrious 
 Father of his Country — one of the most eminent and 
 learned of the judges of the American Bench. "No 
 man ever feared responsibilities less, none could be more 
 imperturbable, silent and patient during an argument 
 until the time came for him to speak. He was inimi- 
 table in condensing and clarifying a subject so as to 
 drive his judgment home in the conviction of others. 
 Perfect impartiality, inflexible decision, magnanimous 
 candor, and untiring industry strongly characterized 
 him. He was often known to sit sixteen hours on the 
 bench without leaving it. 
 
 Judge 'Paterson was small in stature, somewhat insig- 
 nificant in appearance when not on the bench, and al- 
 
CHIEF JUSTICE MARSHALL. 259 
 
 ways miassuming in his manners. The moment he took 
 his seat on the bench he was another man, remarkable 
 for his judicial dignity, polished, easy and graceful 
 manners. He was a walking law library. At a hotel, 
 among lawyers, suitors, witnesses, he was only one of 
 the rest ; but as soon as he was seated on the bench, 
 they who a little before supposed him to be one of them- 
 selves, found, sometimes to their cost, that he was not 
 the man they had taken him for, but every inch a Judge. 
 Judge Brockholst Livingston was one of the most 
 gifted of the associates of Marshall on the bench. Be- 
 fore his appointment to that high position he occupied a 
 commanding place at the bar. His learning and elo- 
 quence commanded the respect of the bench and the 
 bar, and he wielded a most powerful and graceful pen, 
 which gave him a prominent place among the renowned 
 American legal writers. It is said that he had a more 
 clasically shaped head than any of his associates on the 
 bench. The legal student will find in his opinions rich 
 and varied stores of legal learning. 
 
 Such were some of the associates of Judge Marshall 
 on the Federal Bench, which he occupied for thirty-four 
 years. His death took place at Philadelphia, July 6, 
 1835. During the time that he presided as Chief 
 Justice, Kenyon, Ellenborongh, Tenterden and Denman 
 — ^four of England's Chief Justices, were removed from 
 the Kings Bench by death. " In this long tract of 
 time — one-third of a century — while numerous judges 
 were passing over the law's disk, one superior luminary 
 . — not culminating until meridian age had matured his 
 mental power, was pei'petually radiating the. light of 
 his powerful mind, g^ea^i learning and deep thought 
 
260 LAWTEE AND CLIENT. 
 
 upon our system of jurisprudence. This, we need not 
 say, was John Marshall. His opinions, remarkable for 
 comprehensiveness and full grasp of a case in all its 
 subtleties, were wrought out by the severest thought. 
 The manner in which thought presided over his delibe- 
 rations and opinions is nowhere more beautifully illus- 
 trated than it is in the great case of Marbury v. 
 Madison (1 Cranch, 138). If Marshall had never 
 written any opinion but that, it would alone have im- 
 mortalized his name. We have studied that opinion 
 many times — always with renewed pleasure and profit. 
 There Marshall laid down the true principles which un- 
 derlie the foundation of government, there he drew 
 sharp, distinct lines between the co-ordinate depart- 
 ments of government, defining and limiting the powers 
 of each with the sagacity of a statesman, and the learn- 
 ing and consideration of a jurist. In all departments 
 of legal literature there are no books in which there 
 is so little authority cited as those containing his 
 opinions ; and yet those opinions were always coincided 
 with by his associates on the bench and by the bar. 
 When a case was argued, and left with the judges to 
 decide, after carefully studying it, he would write out 
 his opinion, hand it to Judge Story, saying : " There, 
 Story, that's the law and justice in this case ; now go 
 and find the authorities." 
 
 In person Chief Justice Marshall was tall and com- 
 manding, though, perhaps, his form was too thin to be 
 perfect. His countenance, full of expression, had that 
 intellectual contour which is so strikingly delineated ^ 
 by the chisel of Canoya. One of his most attractive 
 features were his brilliant black eyes. A fanciful writer 
 
CHIEF JUSTICE MARSHALL. 261 
 
 once said : "Judge Marshall's eyes remind me of two 
 deep wells of thought." With an almost boyish buoyancy 
 of spirits, simple, and almost rustic hoiiliomie of manner, 
 playful, convivial arid kind, delighting in a hearty laugh 
 as much as in a deep constitutional discussion." Judge 
 Marshall was a favorite with all who knew him. 
 
 On tlie bench he was the personification of dignity 
 and judicial courtesy. A strict disciplinarian, yet liberal 
 in dealing with the rigid precisions, technicalities and 
 rules of the legal profession. But no liberties could be 
 taken with him. He was peculiar, even in his dignity ; 
 he had one peculiarity which attracted attention, and 
 sometimes created amusement ; this was in looking 
 long and intensely without winking. Before the two 
 hour rule was adopted it often happened that some 
 boring lawyer would appear in court and speak for 
 hours. Ngthing annoyed Marshall more than this. 
 When such a speaker appeared before him, the Judge 
 would fix his black eyes upon him, their expression now 
 turned to a stony gaze until the garrulous lawyer 
 would wilt beneath his gaze. "When Brskine, the 
 greatest advocate who ever lived, took leave of the bar, 
 on his appointment as Chancellor he boasted that in the 
 long pei'iod of twenty-seven years he had never been 
 kept from Court by indisposition." Marshall never 
 boasted ; yet it is a. memorable fact, that for thirty- 
 three years he was scarcely ever absent from the bench, 
 for any cause whatever. 
 
 May we not say then, that much of the history of 
 the United States Supreme Court— grand and imposing 
 as it is, is found in the judicial career of John Mar- 
 shall ? 
 
TWO GREAT GOVBRNOES OF THE PAST. 
 
 Clinton and Tompkins — The Young Forger — Powerful Efforts 
 for his Pardon — How Tompkins Exercised the Pardoning 
 Power — How Clinton Exercised it— Tompkins' Decisive 
 "No" More Pleasing than Clinton's "Yes" — Characteristics 
 of the Two Governors Contrasted. 
 
 In the year 1815, during the third administration of 
 Governor Tompkins, the only son of a man of high 
 standing and extended political influence in the State, 
 ■was charged with the crime of forgery. He was ar- 
 rested, ti'ied, convicted and sentenced to State prison 
 for five years. He had graduated at Yale College with 
 honor, was regarded as a young man of great promise — • 
 the pride and hope of his father — but in an evil hour 
 he yielded to temptation and fell. His fall was a ter- 
 rible blow to his parents and to a large circle of friends. 
 
 In the memorable struggles that had so repeatedly 
 placed Mr. Tompkins in the gubernatorial chair of the 
 State, the father of the young man had always been his 
 strong and powerful supporter. Relying upon his in- 
 fluence with the Governor — upon some mitigating cir- 
 cumstances in the young mane's case, and upon a numer- 
 ously signed petition — he applied for a pardon. 
 
 The heart of Daniel D. Tompkins overflowed with 
 
 sympathy and kindness. It was the home of every 
 
 kindly emotion, and a desire to alleviate suffering was 
 
 its ruling tenant. But an inflesible devotion to duty, 
 
 [362] 
 
TWO GREAT GOVERNORS. 263 
 
 an unyielding fealty to justice presided over his whole 
 being. 
 
 The grief of the father, the Governor's obligation 
 and friendship for him, were powerful appeals. But, 
 after a patient and careful investigation of the case, he 
 felt that duty compelled him to refuse a pardon. "As 
 Daniel D. Tompkins," he said to the father, " I could 
 perhaps, pardon your son, but as the Executive of the 
 State of ISTew York my duty will not permit me to in- 
 terfere in his behalf. As Lord Hale once said, when I 
 find myself strongly inclined to pity a criminal, I am 
 compelled to remember that there is likewise pity due 
 the country and its people." 
 
 After waiting a few months the father again applied 
 to the Governor for a pardon, but without success. 
 
 At length De Witt Clinton was elected Governor and 
 Tompkins became Vice-President of the nation. Acting 
 under the advice of some strong friends of the Adminis- 
 tration, the father, always an opponent to Clinton, peti- 
 tioned him for a pardon. He was enabled to produce 
 some newly discovered evidence in his son's favor, and 
 his petition contained the names of distinguished men 
 in the State — the friends of Clinton, who desired to 
 turn the influence of the father in their favor. Some 
 of them ventured to say to the Governor, that if he 
 could possibly see in the eii'cumstances of the case, any 
 grounds for granting the young man a pardon, it would, 
 perhaps, be the means of giving their party a powerful 
 ally — at least it would disarm an inveterate opposer. 
 The Governor's reply was characteristic. "Nothing. of 
 that nature," said he, "will induce me to interfere in 
 the matter. But I will give the case a careful investi- 
 
264 LAWYER AND CLIENT. 
 
 gation — will look at what new mitigating circumstances 
 there may be in his case, and, if in obedience to my 
 duty I can release him, I will do so." 
 
 Some time after the papers in the case had been 
 placed in the Governor's hands the father called upon 
 him to urge a favorable decision. He was received with 
 every consideration of respect, and with all he atten- 
 tion, all the cordiality which 'Clinton's somewhat re- 
 served and distant manners permitted. But he was 
 wanting in that winning grace, that easy affability 
 which so eminently characterized Mr. Tompkins. 
 When the interview terminated, the Governor placed in 
 the hands of the father an unconditional pardon of his 
 son. He returned to his hotel, whore several of his 
 friends, including a number of the opponents of Gov- 
 ernor Tompkins, were anxiously waiting for him. His 
 smiling face announced his success. After many warm 
 congratulations, one of the gentlemen said : " You 
 have always been a friend and supporter of Tompkins, 
 but when you needed assistance he refused it ; not 
 only once, but twice. On the contrary, Mr. Clinton, 
 whom you have always opposed, granted your son's par- 
 don on your first application to him. Now, tell us, 
 frankly, don't you think you have been mistaken in the 
 man ? Now, do you not prefer Governor Clinton to 
 Tompkins ? Come, tell us which you like best ?" 
 
 "Well," said he, " Governor Tompkins twice refused 
 to pardon my son ; Governor Clinton pardoned him on 
 my first application to him ; because, in the facts and 
 new circumstances I presented to him, he found suf- 
 ficient reason for doing so. Both Governors acted 
 under honest convictions, and now you want to know 
 
TWO GREAT GOVEENOES. 265 
 
 ■which of them I like best. All I can say is, Daniel D. 
 Tompkins, by all odds ; for he can decisively say ' No,' 
 in a pleasanter way than Clinton can say 'Yes,' to save 
 his soul." 
 
 " Time's effacing fingers" and a virtuous life, oblite- 
 rated the memory of the young man's crime. He lived 
 and died a respected citizen of Western New York — and 
 his sons and daughters still live to bless his memory. 
 
 This anecdote, in a large degree, illustrates the 
 characteristics of two of New York's illustrious Gov- 
 ernors, of the past ; — De Witt Clinton and Daniel D. 
 Tompkins. But so deeply interesting and instructive 
 is their history and the times in which they lived, that 
 a nearer view of both may be profitable and interesting. 
 They began their career with the d^wn of that 
 memorable cycle in American politics and mariners, in 
 which Thomas Jefferson is the central figure. It was 
 a period which witnessed the last national struggle of 
 the great Federal party for a consolidated government, 
 in which, as their leaders insisted, they sought to pre- 
 vent Democracy, which they termed popular chaos, 
 from resolving society back to its original elements. It 
 was a period when queues, or pigtails as they were 
 called, and powder began to be discarded ; when gentle- 
 men began to wear pantaloons instead of silken breeches, 
 long stockings and knee buckles ; when the triumph of 
 young republicanism gave to the people of the nation a 
 form of government that represented them and execu- 
 ted their will. But the most brilliant and instructive 
 part of its history is that which records the lives of so 
 many patriots, statesmen, jurists, scholars and scientists 
 who laid the foundation of our constitutional, statute 
 
266 LAWTBE AND CLIENT. 
 
 and common laws — of our progress in science, agricul- 
 ture, trade and commerce. 
 
 It was Goethe who said, "thought expands but ac- 
 tion narrows." But De "Witt Clinton and Tompkins 
 were men of thought and action. They were not char- 
 acters who belonged to what Hume calls " the corners of 
 history ;" they stand out on its broadest page. 
 
 They were both adherents of that great "Apostle of 
 Democracy — the preserver of its essential peculiarity," 
 JefEerson. They differed, however, in regard to the 
 manner in which his political doctrines should be re- 
 duced to practice, and they were representatives of op- 
 posing theories of internal navigation and improvement 
 which, in the commencement of their career, began to 
 agitate the public mind. Tompkins was more anxious 
 to win the plaudits of the multitude and to secure 
 present popularity than Clinton, who preferred and 
 won a fame that grew clearer and brighter through fu- 
 ture ages. He possessed that power of conceiving new 
 and extensive plans ; of constructing and bringing to 
 bear on great objects a complicated machinery of means, 
 energies and arrangements, and of accomplishing great 
 objects. He possessed that creative energy which gave 
 to his country those splendid improvements which have 
 so materially added to its happiness and prosperity. 
 He took an appeal to posterity for his reward. Now 
 that partial friendship and fond admiration have ceased 
 to exaggerate his merits, when the malignant hatred of 
 political rivals and jealous contemporaries no longer 
 magnify his defects — the common heritage of human 
 nature, his appeal to time, is thankfully and reverently 
 sustained. Like Tompkins, much of his life was a con- 
 
TWO GKEAT GOVEENOES. 267 
 
 tinual conflict of politics, the intricate details of which 
 haTC rendered the action of parties in the State of New- 
 York a sort of anomaly. 
 
 There are, it is said some characters that seem formed 
 by nature to take delight in struggling with opposition, 
 and whose most agreeable hours are passed in storms of 
 their own creating, who seem indefatigable in creating 
 enemies to exhibit their power in subduing them. It 
 is certain that no man ever made more enemies or was 
 ever more bitterly assailed, vituperated and maligned — 
 more malignantly followed with determined opposition 
 "to the bitter end" than De Witt Clinton. His great 
 project of internal improvements was frowned upon 
 and sneered at with unequaled and withering contempt. 
 " Clinton's Ditch" was the name sneeringly applied to 
 the great work, the glory of the State of New York. 
 
 At a large banquet given by the opponents of the 
 proposed Erie Canal, which took place in the City of 
 New York, in December, 1815, the following toast was 
 drank amid great enthusiasm: " De Witt Clinton and 
 his mud ditch — the experiment of restless but weak am- 
 bition — the puerile efEort of demagogues who propose 
 to enhance their own benefits, at the expense of the 
 State — may they be buried in the mud they propose to 
 dig up." 
 
 At this time, when past events of magnitude in the 
 history of the State and Nation, and the actors in them 
 are so- reverently celebrated, it seems almost impossible 
 to believe that men like Clinton and other originators of 
 measures that have ameliorated the condition of man- 
 kind, writers, scholars, scientists and inventors to whom 
 time, "the avenger and adorner of the dead," has as- 
 
268 LAWTBE AND CLIENT. 
 
 signed a place in the temple of fame, could ever have 
 been the victims of the malevolence and hatred which 
 have followed so many of them to their tombs. 
 
 But these are the necessary ingredients in the com- 
 position of all true fame. It was not only in the old 
 Roman custom, but in the nature and composition of 
 all things, that calumny, detraction and abuse should 
 be the essential elements of a triumph. 
 
 It was the fortune of the first Napoleon, at a critical 
 period of his life, to be brought in collision with the 
 genius of Wellington. It was the fortune of Clinton to 
 encounter in his political orbit another mind stimulated 
 with an unconquerable ambition, gifted with equal 
 power of commanding success, and possessing more for- 
 tunate elements, concurring at the time for securing 
 popular favor. This was Daniel D. Tompkins. The 
 struggle was what might have been expected from the col- 
 lision of such powerful rivals. It held in abeyance the 
 ambitious designs of other men of historic renown, chief 
 of whom was Martin Van Buren, whose insatiable desire 
 for public honor could only be gratified when Tomp- 
 kins and Clinton had left the political field forever. 
 
 It has been said, with much force, that the career of 
 the most exalted politician reminds one of the player 
 who, while clothed with royal habiliments, enacting 
 Julius Caesar or Richard III., excites admiration, per- 
 haps veneration and awe ; yet, when the curtain drops, 
 he is transformed into an individual who attracts no in- 
 terest whatever. 
 
 But De Witt Clinton was one of that class of men 
 whom Scaliger designates as homines centennarii, who 
 appear but once in a century. 
 
TWO GREAT GOVERNORS. 269 
 
 In the Capitolium of Eome there are long rows of inar- 
 lle slabs on which are recorded the names of the Roman 
 Consuls. But the eye wanders over this wilderness of 
 names only to kindle upon a Cato or Cicero. So, too, 
 in the long list of illustrious names that embellish the 
 history of the Empire State the eye lingers longest on 
 the name of De Witt Clinton, and it will kindle with 
 animation over that of Daniel D. Tompkins. 
 
 "Clinton's talents existed in open and bold defense 
 against his enemies and in his capacity of managing his 
 cause by strong, well arranged arguments. In the cabi- 
 net and in the council he possessed commanding elo- 
 quence that gave him success ; but, in the management 
 of individual temper, in pandering to the passions and 
 prejudices of the multitude, he was deficient. As much 
 of his time was spent in meditation and study, he was 
 absent in mind, often forgetful of familiar persons — 
 characteristics inseparable from genius and scholarly 
 habits, but unfortunate in one who seeks popularity." 
 
 It thus often happened that inferior, but ambitious, 
 shrewd men, with more address, often gained temporary 
 advantage over him. 
 
 " One defect in Mr. Clinton's character as a public 
 man, indeed as a private citizen," says Mr. Hammond, 
 " was the severity of his remarks about gentlemen who 
 differed with him in political opinions." But the 
 strength and devotion of his patriotism — the virtues 
 that adorned every period of his life, and his undoubted 
 integrity endeared him to the people more strongly 
 than the platitudes and blandishments of the most 
 truculent politician, leading him to an exuberance of 
 power wielded by few men in State. 
 
270 LAWYBE AND CLIENT. 
 
 Nature, that had so liberally endowed his mind, was 
 equally lavish with external embellishments. His per- 
 sonal appearance commanded respect. He was one of 
 those men who, in a throng of people, v^ould attract at- 
 tention. " His person, in his youth and early manhood, 
 was remarkable for its masculine beauty ; as years ad- 
 vanced it assumed a majestic character. His stature was 
 upward of six feet high, straight and finely proportioned ; 
 his eyes dark and expressive ; and the lines of his mouth 
 indicated determination and resoluiion." Like Wil- 
 liam Pitt, whom he resembled in many points of char- 
 acter, Clinton always dared to abide by his own de- 
 cisions, never suffering popular prejudice or party 
 clamor to deter -him from any measure which his de- 
 liberate judgment approved, always confidently relying 
 upon himself, while his plans were full of energy, ex- 
 tending beyond the present — beyond the consequences of 
 the hour. 
 
 The history of Daniel D. Tompkins is that of a 
 great and brilliant party leader, successfully advocating 
 all-absorbing but transient party measures. By the 
 natural affinity which gives minds like his appropriate 
 employment, he found in the events of liis times — chief 
 of which was the war 1813' — a sphere of action for 
 which his wondrous energy and singular aptitude for 
 public affairs qualified him — not as a soldier but as 
 a statesman and diplomat, successfully guiding a pat- 
 riotic and dominant policy. At the time when the oppo- 
 sition of the New England States to the war, and the 
 almost treasonable action of the Hartford Convention, 
 had cast a gloom over the patriots of the nation, it was 
 
TWO GREAT GOVEENOES. 271 
 
 this policy that reanimated the people with a confident 
 belief in the success of our arms. 
 
 If genius is that quality without which judgment is 
 cold and knowledge inert, if it is that energy which col- 
 lects, combines, animates and fascinates them, Tompkins 
 Avas a man of eminent genius. But in dialectics, strength, 
 diplomatic ability and scientific research he was not equal 
 to Clinton. 
 
 Tompkins lived more for the present, Clinton more 
 for the future. The political arena alone unfolded the 
 strength of the former. In it he won almost unprece- 
 dented power and popularity ; while the latter, if he 
 had not united distant waters, " thereby making his 
 own extended and magnificent monument, his literary 
 production and his attainments in the useful arts and 
 sciences would have marked him as a great and good 
 man." 
 
 Again Clinton exhibited to the world that it is the 
 prerogative of true greatness to sustain itself in adver- 
 sity. He was for a time disappointed in his best hopes 
 — retarded and baffled in the prosecution of his great 
 designs, i-emoved from official position, and over- 
 shadowed by the brilliant policy and towering fame of 
 Tompkins. But with characteristic energy he applied 
 himself to the highest achievement of the intellect ; 
 solaced himself with prophetic confidence that he was 
 aiding a great work, a bond of union and fellowship 
 with illustrious men of better days. 
 
 The circumstances of Mr. Tompkins' life denied him 
 the advantages possessed by his great rival. The name 
 and family of Clinton are inseparable from our colonial 
 and State history. From DeWitt Clinton's first en- 
 
272 LAWYER AND CLIENT. 
 
 trance into public life down to the time of his death he 
 was aided by powerful family influence. 
 
 He was a brother-in-law of Ambrose Spencer, the 
 most powerful man of his times.; who, as a statesman, 
 judge, lawyer and scholar was one of the great lumi- 
 naries of the nation. He was also connected with the 
 Livingston family — another name for power. His fa- 
 ther was General James Clinton, a gallant and distin- 
 guished officer of the Continental army. He was a 
 nephew and favorite of the illustrious Governor George 
 Clinton — a Governor of the State from 1777 down to 
 1792, a period of fifteen years. 
 
 It was at the feet of this great statesman that young 
 Clinton learned those lessons in statesmanship that 
 gave his own name to history. 
 
 Tompkins was the son of a "Westchester county far- 
 mer possessing means little more than sufficient to edu- 
 cate his sou, leaving him, in a great measure, dependent 
 on his own exertions for his professional and political 
 movements. 
 
 But he had a strong, well cultivated, active, self- 
 sustaining mind, with full mastery of all its powers. 
 So happily were all his mental and moral qualities tem- 
 pered — so equally were they blended and balanced with 
 his faults that they prevented each other from exceeding 
 proper limit. "He knew how to conciliate the most 
 enterprising spirit with the coolest moderation ; the 
 most obstinate perseverance with the rarest flexibility ; 
 the greatest rigor in governing with almost enchanting 
 afEability and grace of deportment ; an intense love of 
 the routine of business with the most shining qualities 
 of action." 
 
TWO GREAT GOVEENOES. 273 
 
 Nature also bestowed upon him many personal at- 
 tractions ; vigor of limb, elegance of form and attrac- 
 tive conversational powers. 
 
 He was always a Democrat, instinct with the most 
 absolute confidence in those principles which, under the 
 advocacy of Jefferson, led to llio inauguration of Ee- 
 publicanism in the nation. 
 
 The measures he adopted and carried out, in regard 
 to the war of 1812, to which we have already alluded, 
 caused him to be almost idolized by a powerful party in 
 the State and Nation. He was the strongest pillar of 
 Madison's brilliant administration. That illustrious 
 statesman, in recognition of his services, tendered him 
 the oflSce of Secretary of State in his Cabinet, to be va- 
 cated by Mr. Monroe — an offer which was modestly de- 
 clined. 
 
 Tompkins was elected Governor of New York in 
 1807, and by repeated elections occupied the Executive 
 chair of the State, down to 1817, when he left an unex- 
 pired term to enter on liis duties as Vice-President of 
 the nation. 
 
 His extraordinary and almost miraculous success at 
 the gubernatorial election of 1813, against the opposi- 
 tion of Clinton and his powerful friends, while it affords 
 evidence of his singular popularity, greatly increased 
 it. It is a striking coincidence that Mr. Clinton was 
 subsequently chief magistrate of the State four terms, 
 and that Tompkins discharged the duties of that high 
 office for the same number of years. The former, like 
 Tompkins, left an unexpired term. Both of these men 
 were elected Vice-President of the nation ; both were 
 defeated by the alleged treachery of their friends. 
 
274 LAWYER AND CLIENT. 
 
 Clinton was a Senator in Congress ; Tompkins a mem- 
 ber of the House of Eepresentatives. The National 
 Cabinet and the great leaders of the Democracy in the 
 nation united on him as the successor of James Madi- 
 son, as President. But whatever hopes he had of suc- 
 cess were swept away by the cold and subtle policy of 
 Martin Van Buren. 
 
 Clinton and Tompkins were members of the State 
 Constitutional Convention of 1801. In that distin- 
 guished body their rivalry commenced. With some 
 slight exceptions, it continued until the latter closed his 
 career twenty years after, in the Constitutional Conven- 
 tion of 1831. 
 
 Like Aaron Burr, Tompkins was in a great measure 
 indebted to his fascinating manners and pleasing ad- 
 dress for his singular success. Burr was the modern 
 Alcibiades, gifted with the elegance, grace and talents, 
 and tarnished with the faults of the accomplished, but 
 dissolute, Athenian. Tompkins was the American Ches- 
 terfield ; possessed of the peculiar dexterity, acuteness, 
 force of intellect and insinuating manners, which gave 
 that courtier and statesman so many places of distinc- 
 tion under the reign of George the Second. Clinton, 
 as we have already said, was in many respects the Wil- 
 liam Pitt of his time. 
 
 In some respects Tompkins was to Clinton what 
 Burr was to Hamilton — his evil genius. The most for- 
 tunate circumstance in the career of Tompkins, which 
 by singular fatuity is not often accorded to public men, 
 was the coincidence in point of time and of the full ma- 
 turity of his talents with the successful and historic ad- 
 ministration of James Madison, His measures and 
 
TWO GEEAT GOVEENOES. 275 
 
 policy in regard to that were as unfortunate for Clinton 
 as were Clinton's internal improyement measures disas- 
 trous to him. 
 
 One of Governor Tompkins's measures will ever 
 stand a perpetual monument to his name. This is his 
 message sent to the Legislature January 38, 1817, rec- 
 ommending the entire abolition of slavery in the State of 
 New York, which resulted in expunging slavery forever 
 from the statutes of our great State. If in reference to 
 internal improvements the action of Mr. Tompkins was 
 that of a cool, calculating, wily politician, jealous of 
 the fame of Clinton ; in the cause of humanity, in that 
 of public education, and in behalf of manufactures, he 
 was bold, energetic, decisive and successful. 
 
 Clinton and Tompkins were called to the bar when 
 very young — the former being twenty-three, and the 
 latter twenty-two, — they broxight to the forum all the 
 accomplishments that a thorough classical and legal 
 education could give. To these were added those pe- 
 culiar native endowments, which qualify men to endure 
 the " Trials and win the The Triumphs of the Bar." 
 Both were eloquent. Clinton's utterances were clear, 
 strong and plain. His voice and attractive manner of 
 speaking impressed his sentiments on the minds of 
 courts and jurors. 
 
 Tompkins was a more graceful, insinuating pleader 
 at the bar ; particularly in discussing questions of fact, 
 though perhaps, in a logical, subtle argument he was 
 not Clinton's equal. Both left the bar after a brief but 
 brilliant practice to enter upon those careers which, as 
 we have seen, are recorded in history where they linked 
 their names to immortality. 
 
EBCOLLECTIONS OP WILLIAM PINKNBY OF 
 
 MARYLAND. 
 
 The Young Continental Soldier and his Tory Father— Young 
 Pinkney and the Continental Artillerist — A Dead Shot — 
 Pinkney and the Debating Club— How he Beat his Oppo- 
 nent — The Lawyer — His Triumphs at the Bar — Statesman 
 and Foreign Minister — Amusing Scene at the Court of St. 
 Petersburgh. 
 
 We have heretofore referred to a singular altercation 
 between Mr. Pinkney and Daniel Webster, as related by 
 a biographer of the latter, an altercation in which those 
 great men are said to have exhibited characteristics so 
 utterly at war with their real nature, that many refuse 
 to believe the writer's relation of it. 
 
 We have seen Mr. Pinkney before the Supreme 
 Court of the Uniied States, the opponent of the ablest 
 lawyer of his time, Thomas Addis Emmet, in a great 
 national case. We have seen him hurried by the ex- 
 citement and heat of that contest into an unprovoked 
 and bitter attack upon his adversary. We have de- 
 scribed the dignified, respectful, but searching reproof 
 which Mr. Emmet administered to him, and then 
 the beautiful, touching, magnanimous apology which 
 Pinkney tendered to Mr. Emmet. 
 
 We now propose to take a nearer view of Mr. Pinkney, 
 
 whose history is so replete with profitable interest. He 
 
 was the associate and adviser of Washington, Jefferson 
 
 and Monroe ; an ambassador and foreign minister, 
 
 [276] 
 
RECOLLECTIONS OF WILLIAM PINKNEY. 277 
 
 whose ability was acknowledged throughout Europe, 
 shedding luster on the young republic he represented. 
 At home he was regarded as a wise, sagacious states- 
 man — a Senator in Oongress-j-an orator of whom it has 
 been said, "It is a disputed point who was the stronger 
 m logic, Webster or he. Certainly he was Webster's 
 superior in rhetoric, and he possessed all of Choate's 
 elegance of language, and much more elegance of deliv- 
 ery." As a lawyer he stood at the head of the Ameri- 
 can bar, tlie rival of William Wirt, "the toil of whose 
 lifetime it was to achieve those solid attainments which 
 alone make brilliancy of utterance endurable in a court 
 of justice." 
 
 He was born at Annapolis, Maryland, May 6th, 
 1764. His father was an Englishman by birth — a man 
 of culture, sound common sense and practical judgment. 
 When the revolutionary war broke out, as was natural, 
 he strongly sympathized with his native country. But 
 the boyish ardor of his son, who was then thirteen 
 years old, was fired by the patriotic spirit that pervaded 
 the country, and with all the enthusiasm of his nature 
 he espoused the cause of the colonies. The thrilling 
 words of Patrick Henry, " Give me liberty, or give me 
 death !" continually rang in his ears, and nothing but 
 his extreme youth prevented him from becoming a 
 soldier in the continental army. 
 
 On one occasion, soon after attaining his seventeenth 
 year, he was absent fi-om home so long that his father, 
 in alarm, caused search to be made for him throughout 
 the city. But he was nowhere to be found. At length 
 he was traced to the fort in Annapolis. Thither Mr. 
 Pinkney hastened, and there, to his astonishment and 
 
278 LAWYER AND CLIENT. 
 
 disgust, found his boy armed and equipped as a Conti- 
 nental soldier, guarding the ramparts. Obeying the 
 paternal command, he stacked arms, doffed his accou- 
 terments, and took up his line of march for home. As 
 he was the idol of his father, the only punishment he 
 received was a slight reproof and a mild lecture on the 
 evils of rebellion. 
 
 A few days elapsed, when he was again missed at 
 home, and again found by his father at the fort — this 
 time, so actively engaged with one of the great guns, in 
 learning the artillery drill, that he did not observe his 
 father, who stood in speechless astonishment, at the 
 boy's agile movements in the drill. Presently a ball 
 from the gun struck the distant target full in the 
 center, and young Pinkney, elated at the success of his 
 favorite gunner, swung his hat, shouting "Hurrah for 
 the Continental Congress and Liberty !" This burst of 
 pati'iotic enthusiasm from his son almost petrified Mr. 
 Pinkney. Here was "his boy, his beautiful, his brave," 
 in arms against his sovereign, blending his shouts of re- 
 bellion with the thunder of rebel cannon. 
 
 " William !" said Mr. Pinkney, as he laid his hand 
 on his son's shoulder, " William, what does all this 
 mean ?" 
 
 "Mean, father ? it means that old iron-throat there, 
 is the best gun in the fort, and that Bill Hazlett can 
 send a twenty-four pound shot from her, right through 
 the hull of any British ship of war that dare enter the 
 harbor !" said the excited .boy. 
 
 " You are too young for a soldier, my boy. So go 
 home with me and we will talk these matters over," 
 said Mr. Pinkney. The boy obeyed, and after that day 
 
EECOLLECTIONS OF WILLIAjyi PINKNEY. 279 
 
 Mr. Pinkney never exhibited aay opposition to the 
 cause of the colonies, nor any zeal for that of King 
 George. 
 
 The education of his son was one of the chief ob- 
 jects of his life. The desire of young Pinkney to attain 
 an education was so great that he devoted all his ener- 
 gies to his studies and abandoned all thoughts of be- 
 coming a soldier, though he remained an ardent patriot. 
 
 Such, however, was the disturbed condition of the 
 country, that he was denied the advantages of a colle- i 
 giate education. But he was placed under the instruc- ( 
 tion of Louis Brathand, a man of rare attainments, an j 
 accurate scholar, distinguished for his singular faculty,' 
 of developing the powers of his pupils, and stimulatingi 
 their minds with scholarly ambition. Mr. Pinkney in i 
 after life often referred to his instructor with warmest( 
 afEection. "Under his influence," he used to say, "I 
 formed those habits of industry in study, and perseverance: 
 in whatever I undertook, which enabled me to adopt the 
 motto of Burke, Nitor in adversum." 
 
 He remained under the instruction of Brathand over 
 three years, becoming an excellent Latin scholar, and 
 making much proficiency in the Greek language, mas- 
 tering many of the great writers of antiquity. He 
 learned by heart Cicero's great forensic oration m behalf 
 of Oppianicus, a Eoman knight of splendid family and 
 fortune, charged with the crime of attempting to poison 
 his son-in-law, Avitus Oluentius, one of the exquisite pro- 
 ductions of antique legal oratory. 
 
 Young Pinkney also translated Cicero's Catilinarians, 
 most of his- Phillipics, and his Verrine Orations. The 
 famous oath in Demosthenes, " the most figurative and 
 
280 LAWYER AND CLIENT. 
 
 highly-wrought passage in all antiquity," was his 
 especial favorite, and he loved to repeat it even in the 
 latest years of his life. Under the discipline of his 
 preceptor, he acquired "those habits of systematic 
 thought, and the admirable arrangement of all his ac- 
 quired knowledge, which made his memory one vast 
 storehouse of facts, principles and illustrations, ready 
 for use at a moment's call." Pinkney was, through all 
 his life, a student. His jiroficiency in all his studies was 
 that which a man of vigorous faculties and determina- 
 tion of |)urpose can make under difficulties. His study 
 of the great masters of eloquence developed in him 
 those oratorical powers, and that polemical skill which 
 resembled intuition. Fortunately for him he was, in 
 his youth, surrounded by influences which elicited not 
 only his intellectual powers but his better feelings. 
 Still he exhibited, in his youth and in mature life, 
 faults inherent in human nature, which, perhaps, should 
 not be omitted in drawing his mental portrait. 
 
 " But when a painter," says an exquisite ancient 
 biographer, " has to draw a fine and elegant form, which 
 happens to have some blemish, we do not want him to 
 pass over that blemish, nor yet mark it with too much 
 exactness. The one would spoil the beauty of the 
 picture ; the other destroy the likeness." Among 
 Pinkney's faults — nnd we can say, without affectation — 
 that he had but few — was his excessive vanity. Indeed, 
 to use the language of another, " He was the vainest 
 man of his time ; he was even vain of his vanity." 
 But it must be remembered that Cicero, one of the 
 greatest men and an elegant gentleman ; Pliny, a writer 
 and critic, whose fame is equal to that of Tacitus, were 
 
RECOLLECTIONS OF WILLIAM PINKNEY. 28j 
 
 intensely vain and egotistical ; that Arian, " whosi 
 pages exhibit all the learning and polish of ancient 
 Greece, on one occasion suddenly interrnpts the thread 
 of one of his most charming narratives, to inform his 
 readers that he himself, is as eminent among the 
 Greeks for eloquence as Alexander the Great is for war." 
 Neither must we forget the self-esteem that so fre- 
 quently tarnishes the character of many great men of 
 modern times. Some one has said that vanity is a 
 badge of greatness, and self-confidence the propeller of 
 the intellect. 
 
 Another of Pinkney's faults was his impatience and 
 irascibility when strongly opposed or closely pushed in 
 an argument at the bar or in the Senate. But his 
 natural generosity and magnanimity usually kept these 
 traits within bounds. It was Pinkney's ambition in 
 youth to become an orator and logical debater. He felt 
 that to attain this it was necessary to possess, not only 
 native quickness and force of mind, but he must have 
 long-continued and constant practice ; that an intimate 
 knowledge of history and metaphysics were also neces- 
 sary. Therefore history, to him, even in his earlier 
 years, "was not a chronicle of events, a picture of 
 battles and sieges, or of life and manners; but to make 
 it Jdstory, it must bind' events together by the causes 
 which produced them." Imbued with such feelings as 
 these, with his wonderful force of memory and activity 
 of mind, he acquired an amount of historical knowledge 
 that few men ever possessed, which enabled him, as 
 Senator in Congress, to master every subject in debate 
 with great facility. 
 
 But it was in the debating club, that much ridiculed, 
 
282 LAWYER AND CLIENT. 
 
 but eminently useful school of mental culture, that 
 Pinkney practically learned the art of oratory and oral 
 reasoning. Next he acquired that artful use of logic 
 and rhetoric that rendered him so irresistibly fascinating 
 as a speaker. It is said that "he was animated in de- 
 bates by that haughty impatience of a superior that 
 characterized him at a later day." An amusing anec- 
 dote is related of his career in the club. 
 
 The popularity of its young and brilliant debaters 
 always filled the large hall in which their discussions 
 took place with the elite of Annapolis. On one occa- 
 sion a question of especial interest had been assigned 
 for discussion, and Pinkney was one of the leading dis- 
 putants. In order to prepare himself he repaired to a 
 secluded grove to rehearse his speech. As he ap- 
 proached the place he heard the voice of an animated 
 speaker. Stealthily approaching nearer the orator, he 
 discovered that it was his opponent in the coming debate 
 — his rival, if not his superior, as a speaker — earnestly 
 engaged in discussing the question of the ensuing even- 
 ing. He had just finished his exordium, and Pinkney 
 had the full advantage of his argument in advance. 
 Taking a tablet from his pocket he noted down its main 
 features, its positions avid points, retiring unseen by his 
 rival, 
 
 Pinkney spent the remainder of the day in preparing 
 for the coming argument. " The result," he used to 
 say, " was brilliant. In the evening my antagonist's 
 speech — a very able one, and highly seasoned with 
 rhetoric — was received with acclamation. But when I 
 made my extemporaneous argument, I went so far be- 
 yond him in rhetorical effect, in refutation and sarcasm. 
 
RECOLLECTIONS OF WILLIAM PINKNEY. 283 
 
 that my fame as an orator and reasoner threw my oppo- 
 nent in the shade and gave me unprecedented renown. 
 All my struggles and triumphs at the bar — whatever 
 fame 1 have gained as a parliamentary orator — never 
 gave me so much exaltation as my triumph on that 
 occasion. And yet it was mainly the result of an acci- 
 dent. So it is in life. Some little circumstance, some 
 fortuitous event, may turn the tide of success in a man's 
 favor ; then he is called the artificer of his own for- 
 tune." 
 
 At one of the meetings of this debating society, 
 Samuel Chase, then standing at the head of the Mary- 
 land bar — afterwards one of the Judges of the Supreme 
 Court of the United States — was present. Pinkney made 
 the closing argument of the evening. Chase was so 
 struck with his readiness, spirit and vigorous debate, 
 the beauty and richness of his elocution, the manliness 
 of his figure, and his fine voice, that the next day he 
 sent for him and invited him to become a student in his 
 office. The invitation was accepted, and Pinkney re- 
 mained with his accomplished preceptor and friend until 
 1786, when he was called to the bar. 
 
 He entered upon a brilliant and successful profes- 
 sional and political career. 
 
 In 1796 he was appointed by President Washington 
 one of the commissioners with Mr. Trumbull on the 
 part of the United States, under the 7th article of Jay's 
 treaty with Great Britain. In July, 1796, the board, 
 consisting of two distinguished English civilians, met 
 in London and proceeded to examine the claims pre- 
 sented to it. Various interesting questions in inter- 
 
284 LAWYES AND CLIENT. 
 
 national law arose respecting contraband of war, domi- 
 cil, blockade, and the practice of the prize courts. 
 
 Pinkney's opinion, read before the board, attracted 
 general attention at home and abroad, and established 
 his fame as an international lawyer. 
 
 He returned home in 1804 and became a resident of 
 Baltimore, where he continued the practice of his pro- 
 fession, which was now confined to the United States 
 Supreme Court. 
 
 In April, 1806, he was appointed Minister to Great 
 Britain, Jointly with Mr. Monroe. In this capacity he 
 won the esteem and confidence of Mr. Monroe, which 
 continued through life. In the year 1807, the latter, 
 fully satisfied that Pinkney's acknowledged ability as a 
 diplomat enabled him to cope with all the great ques- 
 tions then being agitated between England and the 
 United States, returned home. But it was not until 
 1811 that Pinkney closed his duties as Minister to the 
 Court of St. James. 
 
 James Madison was then President of the United 
 States, who very soon after his return appointed Mr. 
 Pinkney Attorney-General of the nation. At the close 
 of Mr. Madison's administration he returned to the 
 practice of his profession ; but he was immediately 
 elected a Eepresentative in Congress. This was in 1816. 
 His friend, Mr. Monroe, was then President of the 
 United States. From him Pinkney received the ap- 
 pointment of Envoy to the Court of Eussia, and of 
 special Minister to Naples. After discharging his duties 
 at Naples, he proceeded to St. Petersburg — Mrs. Pink- 
 ney accompanying him. He remained at the Russian 
 court until the summer of 1818, when he returned to 
 
EECOLLECTIONS OF WILLIAM PINKNEY. 285 
 
 the United States and again resumed the practice of his 
 profession. 
 
 While he was at St. Petersburgh an incident — related 
 by one of his attaches — occurred, that exhibits many 
 real features of his character. 
 
 "I was waiting one day," said the attache, " in Mrs. 
 Pinkney's parlors for her husband to come to dinner. 
 After waiting a long time he came in, black and dirty 
 as any man. Without saying a word he walked up to a 
 sofa, jerked ofE his hat and sword, and threw them vio- 
 lently down. Just then Mrs. Pinkney entered the 
 room and in some alarm inquired what had happened. 
 
 "'Happened! Happened! I have been insulted, 
 madame ! Vilely insulted ! Publicly insulted ! That'^ 
 what has happened.' 
 
 " At this," continued the attache, " my sword, as if 
 by magic, leaped from its scabbard to avenge the insult 
 to the representative of my country, and to a man I 
 so sincerely esteemed and respected. In this warlike at- 
 titude I ventured to inquire in what way he had been in- 
 sulted. 
 
 " ' Sir, is not a man of my fame, my name, the rep- 
 resentative of a great country like ours, insulted when 
 he is required to get up at 8 o'clock in the morning to 
 pay his respects to an illustrious Russian princess, who 
 turns out to be a little girl eight years old ? A Eussian 
 princess, forsooth !' 
 
 "Why, Mr. Pinkney," I ventured to say, "you were 
 not expected until 11 o'clock." 
 
 "I know it, sir ; bat can a man, in this country, 
 dress for such an important occasion in less than three 
 hours ? If he happens to leave ofE the least part of the 
 
286 LAWYEE AND CLIENT. 
 
 toggery he is obliged to wear, he would be charged by 
 the great princess with disrespect. She would not like 
 it, sir, the great princess would not like it. Why, some 
 of the nobility have spent double that time in dressing 
 for this occasion. Upon my soul I believe from their 
 looks that some of them spent the entire night in pre- 
 paring to meet this accomjDlished princess. I think the 
 Dutch ambassador did not get his tenth pair of breeches 
 on till long after eleven, for he came into the presence 
 without his sword, sweating like a Turk, and half fright- 
 ened out of his senses at his tardiness, for which he will 
 doubtless be sent home. The more I see of royalty and 
 its courts, and I have seen enough of them, the more I 
 appreciate the common-sense simplicity of our repub- 
 lican court and our republican institutions." 
 
 In the autumn of 1818 Pinkney made his great argu- 
 ment before the United States Supreme Court, upon 
 the question of the right of the States to tax the Na- 
 tional Bank, one of the ablest efforts ever made before 
 that tribunal. The principles of his argument were 
 adopted by Chief Justice Marshall in delivering the 
 opinion of the court. 
 
 In 1819 he was elected a Senator in Congress. 
 Among his speeches that outlive him was that against 
 the clause in the bill passed by the House of Eepresen- 
 tatives, for the admission of Missouri into the Union, 
 upon condition that the introduction of slaves into the 
 new State should be prohibited. He made his last 
 speech in the Senate on the 17th of January, 1832, in 
 the discussion upon the bill for establishing a uniform 
 law of bankruptcy throughout the Union. But in Feb- 
 ruary following, while preparing for an argument upon 
 
EECOLLEOTIONS OF WILLIAM PINKNEY. 287 
 
 the Maryland proposition, he over-exerted himself and / 
 was, on the 17bh of that month, attacked by a severe in-| 
 disposition. He lingered, much of the time in a state 
 of delirium, nntil the 25th of February, when his, 
 splendid career closed in death. The event produced a, 
 profound sensation throughout the Union. His funeral| 
 was attended by both Houses of Congress, the President' 
 of the United States and his Cabinet, the Judges of thej 
 Supreme Court and foreign ambassadors. 
 
 In person Mr. Pinkney was a model of manly beauty, 
 " which was exhibited in the elasticity of his well pro-l 
 portioned frame ; in his brilliant, expressive eye, which 
 had acquired calmness and depth from thought, and 
 which, even in his maturer years, had lost none of the 
 brilliancy of youth, and, finally, in the whole contour! 
 of his features." His entire devotion to his profession^ 
 continued with unremitting pei'severance to the end. 
 
 "If the celebrated Talon could say of the still more 
 celebrated D'Augesseau, on hearing his first speech at 
 the bar, ' that he would willingly end as that young ( 
 man commenced,' every youthful aspirant for forensic 
 fame might wish to begin his professional exertions 
 with the same love of labor, the same ardent desire of 
 success and distinction that marked the efforts of 
 William Pinkney throughout his life," for his whole ) 
 career was a model for American lawyers. 
 
JOHN RANDOLPH AND MARTIN GROVER AT 
 THE BAR AND IN CONGRESS. 
 
 Their Personal Appearance Compared — Webster's Terse De- 
 scription of Randolpli — His Significant Gesture — Grover's 
 Scorching Address to the Jury in a Breach of Promise Case. 
 
 John Randolph of Roanoke was one of the most 
 singular and at the same time one of the most illus- 
 trious of American lawyers and statesmen. A caustic 
 sarcasm, almost brutal in the manner he used it, was 
 one of his prominent characteristics. His ridicule was 
 terrible, his wit flashing and bright, but it was always 
 infused with so much bitterness that it was equally 
 dreaded and admired. As Byron said of Conrad : 
 
 "There was a laughing devil in his sneer 
 That raised emotions both of mirth and fear." 
 
 Randolph was a powerful legislative debater. As 
 was said of Lord Brougham, whom he resembled in 
 many points of character, " for the material of his ar- 
 gument he sometimes went o£E to topics the most re- 
 mote and apparently alien from his subject, but he 
 never failed to come down upon it with great effect at 
 last." In speaking, his favorite gesture was to reach 
 out a very long arm, with a singularly long finger at the 
 end of it, and point it directly at the person he was 
 talking about. In this way he enforced his irony and 
 sarcasm with almost appalling effect. " Of all the in- 
 [388] 
 
RANDOLPH AND GKOVEE. 289 
 
 tellectual weapons ever nsed by man," says Macaulay, 
 "was the irony and mockery of Voltaire. Bigots and 
 tyrants, who liad never been moved by the vvailiugs and 
 curses of thoiisands, turned pale and trembled at his very 
 name." The satires of Juvenal were more dreaded by 
 the tyrants of Eome than the anger of the gods. I have 
 sometimes thought that John Eandolph might, with 
 much propriety, be called the American Voltaire. 
 
 Some one asked Thomas H. Benton if Eandolph was 
 not a sort of legislative comet, frightening his fellow 
 members, shaking pestilence and war ? "No," was the 
 reply, " he was a planetary plague, shooting down agony 
 and fears on the members." A northern Senator asked 
 Webster whether Eandolph was an aristocrat or a Jaco- 
 bin. " He is neither ; he is . an Ishmaelite. Every 
 one's hand is against him — or would be, were it not 
 for fear of him — and his' hand is against every one," 
 said Webster. He used the English language in perfect 
 purity. It has been said of Shakespeare that one might 
 as well attempt to push a brick out of its place in a well- 
 constructed wall as to alter a single expression in his 
 sentences. The same may be said of Eandolph's sen- 
 tences. Housed to study the Bible more critically than 
 any other book ; but he studied it for its elegant, 
 pleasing diction, for the grandeur and sublimity of its 
 descriptions, its pleasing and startling antitheses. 
 
 But Eandolph's voice — who can describe it ? There 
 was something startling, even thrilling in its strange 
 yet beautiful cadence. It had a sort of silvery shrill- 
 ness. When it rang out over a parliamentary body or 
 at the bar it commanded instant attention. When he 
 chose to make it so, it was soft, clear and sweet. But 
 10 
 
290 LAWTEE AKD CLIENT. 
 
 he did not always speak in soft, sweet tones. He en- 
 forced his irony and contempt with a fieculiar emphasis 
 that sometimes resembled the deep, sharp notjs of a 
 trumpet. "He was very tall and very slim, and his com- 
 plexion was sallow, lit up by clear, dark, expressive eyes ; 
 when he walked he stooped, taking long, striding steps, 
 keeping his feet parallel. There was something in his 
 step indicating that some one was in his way, and that 
 such person had better get out of the way at once." The 
 following anecdote illustrates the manner in which Ran- 
 dolph treated an aggressive and insolent assailant : 
 During the winter of 1834, he was a member of the 
 House, and in January of that year a fellow member to 
 whom Eandolph was greatly attached died. The de- 
 ceased member was succeeded by quite a young and very 
 conceited, ambitious man. He took his seat in Con- 
 gress determined to gain notoriety by making a bitter 
 attack on Mr. Randolph, and he took the first occasion 
 to do so. Every one in the house was perfectly as- 
 tonished at the hazardous attack of the new member. 
 When he took his seat Randolph made no reply, and 
 gave the matter no attention. Several days passed on, 
 and a question came up in which he was deeply inter- 
 ested, and he delivered a very earnest and impressive 
 speech favoring his view of it. As he closed, he said : 
 " I should not, Mr. Speaker, have returned to press 
 this matter with so much earnestness had not my views 
 possessed the sanction and concurrence of my late de- 
 parted friend, whose seat, I lament, is now unhappily 
 vacant." At these words he pointed that long arm with 
 that appalling long finger at the end of it, at the young 
 member who had attacked him several days before. 
 
EANDOLPH AND GEOVEE. 291 
 
 The House roared with applause, and the young man 
 never again ventured to attack John Eandolph. 
 
 If there was a member of the New York Bar who 
 resembled Randolph in the use of sarcasm, it was Martin 
 Grover, who at times "squandered wit and pleasantry 
 with the profusion of Eabelais." The spontaneity and 
 art with which he used ridicule, rendered it quite as ef- 
 fective ^ Randolph's manner of using it ; then it left 
 no lacerated wounds where it fell. It was bitter, but, if 
 I may use the expression — sugar-coated, and divested of 
 Randolph's malignity. I have selected an extract from 
 one of his speeches to a jury in an'important case which 
 illustrates Grover's manner of using sarcasm. He was 
 once retained to defend a young man of good family, 
 who had been indicted for the seduction of a young wo- 
 man under the promise of marriage. It was a peculiar 
 case. The lady was not very attractive, and then, she 
 had passed that period when youthful indiscretion is an 
 apology for departing from the paths of i-ectitude. But 
 • she was deep, shrewd, a masterly manager, quick in her 
 perceptions, approaching old-maidism, and desperately 
 in want of a husband. As she had other suitors, and 
 was cruel to none of them, there were strong doubts of 
 the young man's guilt. But he was, in a measure, in 
 her cunningly spread net, and in danger of State 
 prison. Nothing but heroic treatment, as surgeons say, 
 on the part of Grover could save him, and he had it to 
 the fullest extent. In summing up the case to the jury, 
 he thus used his legal scalpel on the lady. 
 
 "Gentlemen of the jury," he said, "I have two 
 witnesses in this case in favor of my client, to whom I 
 propose to allude. One is common sense, the other 
 
292 LAWTEE AND CLIENT. 
 
 human nature. Both of these tell you it is absurdity 
 itself to believe that this young man — to all appear- 
 ances, fastidious and nice in his taste, could see in this 
 woman anything to attract his attentions or arouse any 
 emotions except disgust. Why, gentlemen, she is the 
 Tabitha Bramble of this occasion. Let us look her OTer 
 a moment ; there she sits. She is tall and raw-boned. 
 Her complexion, has no Hebean richness in it. It is 
 sallow ; freckled ; her eyes are gray — no, greenish, like 
 a cat's. Her hair, usually such an attractive appen- 
 dage of female beauty, instead of resembling the luxu- 
 riant ringlets of Minerva, looks more like the carroty 
 covering of a Scandinavian. It is a of color of rusty 
 brick, a rich, dirty, repulsive head. Only think, gentle- 
 men, of that beaateous head, and those luxuriant locks 
 resting lovingly on the shoulders of this love-stricken 
 swain, while he whispers in her ear the soft cooings of 
 his undying affection. Alas ! gentlemen, instead of all 
 this, the touch of that head to his shoulders would be 
 the touch of an ogress. Then think of his implanting 
 soft kisses — gradually heated up to impassioned busses 
 — on those skinny, cadaverous lips. Othello died by his 
 own hand after imprinting a kiss on the lips of the 
 beautiful Desdemona. My God ! Gentlemen, how quick 
 would any sensitive youth, like my client, have rushed 
 to suicide as Othello did, if, for any cause, he found 
 himself kissing this woman of vinegar aspects. And 
 thus, gentlemen, my two witnesses — human nature and 
 common sense — will defeat her action." 
 Grover was right and the young man was discharged. 
 
CHANCELLOR REUBEN H. WALWORTH ON 
 THE BENCH. 
 
 The Circuit Judge— Tries the Three Thayers— Appointed Chan- 
 cellor—Description of Mansfield Walworth as a Young Man 
 — Scenes with a Law Student Seeking Admission Under 
 Difficulties — Appearance of Walworth — Compared with 
 Judge Marsliall — His Singular Manner on the Bench — 
 Scenes and Incidents. 
 
 GovBKiiroE De Witt Clinton died on the 11th of 
 February, 1838, and Nathaniel Pitcher, the Lieutenant- 
 Grovernor, succeeded to the gubernatorial chair. Soon 
 after these events Chancellor Jones resigned and the 
 bench of the Court of Chancery was for a time vacant. 
 Samuel Jones assumed the duties of Chancellor amid the 
 fierce and irreconcilable party contests which charac- 
 terized the illustrious career of De Witt Clinton. Before 
 his appointment his splendid legal abilities, his varied 
 accomplishments as a speaker and writer, gave him a 
 highly influential position as a political partizan at home 
 and abroad. While studying the history of his career 
 at the bar it is diflBcult to conceive how he found time 
 in the midst of his extensive professional duties to write 
 those political documents, expansive literary produc- 
 tions, and powerful legal arguments, so diversified in 
 manner, so elegant in execution. With the aid of the 
 powerful intellect of Ambrose Spencer, Samuel Jones 
 ■was to De Witt Clinton what Richelieu -was to Louis 
 Fourteenth. But the moment he ascended the bench 
 
 [293] 
 
294 LAWTEK AND CLIENT. 
 
 th^ politician was lost in the incorruptible magistrate 
 who held the scales of justice with impartial firmness. 
 
 Eeserved, unsocial and distant outside the aristo- 
 cratic coterie in which he moved, in many respects he 
 was not properly constituted for the discharge of ju- 
 dicial duties. Though his mind acted with a force and 
 precision that rendered it like intellectual clock-work, 
 it is certain the office of Chancellor was not suited to his 
 taste ; hence his resignation. 
 
 No period in the history of our great State has ever 
 been more fertile in judicial, legal, and legislative 
 ability than that in which Chancellor Jones retired to 
 private life. Among the names that shed lustre upon 
 that period are Josiah Ogden Hoffman, Ogden Hoffman, 
 Samuel A. Talcott, father of Judge John L. Talcott, 
 Associate Judge of the General Term of the Supreme 
 Court of New York, William L. Marcy, Thomas J. 
 Oakley, John Savage, Eeuben H. Walworth and others. 
 
 ******* 
 
 One of the first official acts of Governor Pitcher was 
 to tender the chancellorship to James Savage. But as 
 that eminent and learned jurist was then Chief Justice 
 of the State, he declined. Walworth was then one of 
 the circuit judges, who had discharged the duties of 
 that office several years with singular ability and suc- 
 cess. Among the great trials which contributed to his 
 high reputation as unisiprius judge, was that of "the 
 three Thayers," tried at Buffalo in April, 1825. Some 
 of the language used by him in pronouncing sent«nce 
 upon the prisoners — three brothers — is not excelled in 
 legal history. Walworth had been a colleague of 
 Pitcher in the 17th Congress. In the discharge of his 
 
EEUBEN H. WALWORTH. 295 
 
 congressional duties he had impressed Mr. Pitcher -vyith 
 his untiring industry, his sound, equitable, discerning- 
 mind, and when Judge Savage declined the ofEice of 
 Chancellor he promptly offered it to Walworth — who as 
 promptly accepted it. 
 
 4: % :{: ^ :|c % :1c 
 
 According to the rules of the Court of Chancery, 
 candidates for admission to it were required to appear 
 before the Chancellor in open court, take the oath of 
 office, and sign the roll. 
 
 In August, 1843, a young law student who had been 
 recently admitted to the Supreme Court, and who had 
 passed his examination for admission to the Court of 
 Chancery, went to Saratoga, the residence of Chancellor 
 Walworth, for the purpose of completing the formula 
 that admitted him to the degree of solicitor in chan- 
 cery. On his arrival he inquired for the court-house, 
 where the Chancellor, as he supposed, was holding 
 court,- surrounded by a brilliant assemblage of lawyers 
 who had gathered there from all parts of the State ; he 
 was, therefore, greatly surprised when informed that 
 the Chancellor always held his courts at Saratoga in his 
 own house. 
 
 A short walk brought him to the plain but pleasant 
 mansion where court was in session. At the gate in 
 front of it stood a young man just passing the stage of 
 boyhood. His form, set off by a fashionable dress, 
 was exceedingly graceful and attractive ; but it was not 
 his form and dress that chiefly attracted attention ; it 
 was the bold, buoyant, intelligent expression that pre- 
 sided over his handsome face. There was something in 
 the restless though penetrating and semi-impudent 
 
296 LAWYER AND CLIENT. 
 
 glance of his eye that indicated a haughty, arrogant na- 
 ture, and an ill-regulated mind. 
 
 "Will you be good enough to direct me to the room 
 where Chancellor "Walworth is holding his court ?" 
 asked the student as he approached the young man. 
 
 '' It is where you see those windows up," said he, 
 surveying his interrogator with quick, sharp scrutiny. 
 "Have you come," he continued, "to argue a half 
 dozen cases before the Chancellor, dissolve two or three 
 injunctions and set aside the charters of some country 
 banks whose bills have red backs ?" 
 
 "Neither. I am not a solicitor yet, and can do 
 none of these things, even if I had the ability. But I 
 have come here to be admitted to the Court of Chancery, 
 so that I can do something if I have an opportunity." 
 
 " Oh, that's it. Yes, I see. Well, you may make 
 a solicitor of some kind. But how far have you come 
 for all this ?" 
 
 " I live in Cayuga county." 
 
 " Do you ? Then perhaps you know , who lives 
 
 at Auburn ?" 
 
 "Yes, I am some acquainted with him." 
 
 "When you see him again, tell him you met an old 
 school-mate of his at Saratoga." 
 
 " What name shall I give him ?" 
 
 "Mansfield Walworth. I think he'll remember me, 
 for I gave him a thrashing just before we left school. 
 He said if he lived he would some day thrash me in 
 turn — tell him, please, that I am waiting for him." 
 
 " I will do so. If he told you he would thrash you, 
 in time he will keep his word, for he is a good fellow, 
 and honorable ; besides I think he can do it now with- 
 
EEtJBEN H. WALWOETH. 297 
 
 out miicli trouble. Are you a son of the Chancel- 
 lor ?" 
 
 "Yes, sir, I am." 
 
 "When strangers meet, as we have, it is proper they 
 
 should be introduced. I am Mr. , from Cayuga 
 
 county." 
 
 "Walworth, who evidently did not relish what the 
 stranger had said regarding his school-mate, replied, as 
 he drew himself proudly up : 
 
 " Perhaps I have no desire to make your acquaint- 
 ance. You should have thought of that before you 
 proposed to Jionor me with an introduction." 
 
 His remarks and manner had something in them ap- 
 proaching to the bizarre, blended with a kind of repul- 
 sive sarcasm which he intended for dignity. 
 
 "I confess," said the student, "I did not stop to 
 think much about the matter one way or the other, and 
 really I care but little about it. As you are tlie Chan- 
 cellor's son I took you for a gentlemen. But, on the 
 whole, I don't think I should gain much if you conde- 
 scended to permit the introduction. And now, Mr. 
 Mansfield Walworth, if you will tell me wliich of those 
 doors leads to the Chancellor's court-room our acquaint- 
 ance shall end where it began. I am very anxious to 
 take the solicitor's oath and leave for home to-day, if 
 possible, or I should not have troubled you at all with 
 this matter," said the student. 
 
 "You will be compelled to wait some time befoi-e 
 you can take the oath, for John A. Collier and Daniel 
 S. Dickinson are arguing a case before my father, and 
 they are both endless. Collier is talking now, and has 
 been for a long time ; perhaps when he gets through. 
 
298 LAWYER AND CLIENT. 
 
 which ought to be soon, you can manage to be heard 
 before Dickinson gets the floor. Come with me ; I'll 
 show yon the way to the court-room," said young Wal- 
 worth, in a more respectful manner than he had hitherto 
 exhibited. 
 
 The young lawyer obeyed, and soon found himself in 
 a plain room, twenty feet square, surrounded on all 
 sides by book-cases filled with law books. 
 
 A long table covered with green cloth stood in the 
 center of the room, at the end of which sat a man past 
 the prime of life, above the average height and well 
 proportioned, though perhaps his form was too thin to 
 be perfect. His face was grave, intelligent and thought- 
 fuL In its contour there was indication of firmness, 
 tinged with self-confidence, if not conceit. But on the 
 whole his features were those on which a painter seeking 
 to delineate the portrait of a venerable, benignant, still 
 inflexible judge, would seize as the realization of his 
 leau ideal. 
 
 Without the ermined stole, the historic wool-sack — 
 the insignia of judicial power surrounding the Chan- 
 cellors of England, Walworth sat in that humble room, 
 an apparently weak, powerless man. But his decrees 
 and orders were as potent, as reverently obeyed as the 
 mandates of sovereigns. And yet he trusted to the 
 moral sense gf the people alone for the execution of 
 these decrees and orders. It was not the man — not 
 Reuben H. Walworth, that was thus obeyed ; it was the 
 voice of justice speaking through him, her delegated 
 minister — through him " setting a defense around the 
 splendid mansioii of wealth, the lowly hut of poverty ; 
 
REUBEN H. WALWORTH. 299 
 
 repressing wrong, vindicating the right, and humbling 
 the oppressor. 
 
 Near the end of the table. Opposite the Chancellor, 
 stood a finely formed man, with coarse, though intel- 
 lectual features. A pile of law-books and two or three 
 bundles of documents lay on the table before him. He 
 was addressing the Chancellor in a legal argument. 
 His clear, well modulated voice rendered his thoughts 
 obvious ; his perfect acquaintance with legal authorities 
 proved him a lawyer of experience, perfectly versed in 
 all the tactics of legal warfare. This was John A. 
 Collier, whose name is found on almost every page ot 
 the early reports of our State courts, and who was one 
 of the eminent politicians that for many years stood at 
 the head of the old Whig party. 
 
 A little below the center of the table a gentleman 
 was seated, busily engaged in taking notes from Collier's 
 argument. In height he was a little below the Chan- 
 cellor, but his form was more robust. His long hair, 
 tinged with gray, combed back from his broad, full fore- 
 head, fell almost to his shoulders. This was Daniel S. 
 Dickinson, whose career as a lawyer, politician, and 
 Senator in Congress, gives his name a prominent place 
 in history. 
 
 Collier and Dickinson were engaged as opposing 
 counsel on the argument of a case before tlie Chancellor, 
 connected with one of the banks in Chenango county, 
 which had long occupied the attention of the Court of 
 Chancery. 
 
 But before concluding the description of this scene, 
 a more minute sketch of the Chancellor on the bench 
 and incidents in his court may not be out of place. 
 
300 LAWYEK AND CLIENT. 
 
 Chancellor Walworth was the great artizan of our 
 equity system. In some sense he was the Bentham of 
 America, without the fantastical theories and bold specu- 
 lations which sometimes characterize the great English 
 jurist. What Bentham did to remove defects in British 
 jurisprudence, Walworth did in renovating and im- 
 proving our system of equitable law. Before his day 
 the Court of Chancery was a tribunal of ill-defined 
 powers, of uncertain jurisdiction, entirely subservient 
 to the English Court of Chancery in its procedure. 
 With him equity was the soul and spirit of law, crea- 
 tmg positive and defining rational law, " flexible in its 
 nature, suited to the fortunes, cases and reciprocal ob- 
 ligations of men." Some of the fruits of his labors are 
 his opinions forming the material for fourteen volumes 
 of Chancery Reports and much of the contents of twenty- 
 six volumes of Wendell and Denio's Reports. As has 
 well been said, ' ' Never, perhaps, were so many de- 
 cisions made where so few were inaccurate as to facts, or 
 erroneous in law." 
 
 One of the great cases which renders the name of 
 Marshall immortal, is that of Marbur'y v. Madison. 
 (1 Cranch, 137). Here, in a style remarkably clear, 
 concise and forcible, he draws sharp lines between the 
 co-ordinate departments of our government, defining 
 the true principles underlying its foundation. There 
 are several cases decided by Walworth in which the lines 
 between the various state departments — between the 
 equitable and strictly legal rights of individuals and their 
 relations to the state — are as sharply and ably defined. 
 
 The single name of intellect, by which Plato so ap- 
 propriately denominated Aristotle, may, with great pro- 
 
REUBEN H. WALWORTH. 301 
 
 priety, be applied to Chief Justice Marshall, for he was 
 intellect in its purest and simplest form, "with a full 
 mastery of all its various powers." His own original, 
 thoughtful mind, patient sobriety of judgment and 
 keen sense of justice, guided him in arriving at the real 
 truth of the case more than the opinions and views 
 drawn from precedent. In all the departments of legal 
 learning there are no books in which there is so little 
 authority cited as in his opinions. As we have said in 
 another part of this work, when a case was argued and 
 submitted to the court for its decision, Marshall, after 
 carefully reflecting upon it, would write his decision, 
 hand it to Judge Story saying. 'There, Story, that's 
 the law in this case. N"ow go and find the authorities.' 
 No man has ever lived who was more competent for this 
 duty than Judge Story. 
 
 There is a resemblance in the mental organization 
 of Mai'shall and Walworth, with this difference : the 
 former was exquisitely alive to the charms of music — 
 felt the inspiration of -the poet — in early life wrote 
 poetry with grace and a naive simplicity in harmony 
 with his character ; while the latter had little suscepti- 
 bility to the pleasures of poetry. He would not have ex- 
 changed the Forum for the Vale of Tempe or the Garden 
 of the Hesperides. But his mind, like Marshall's, was 
 guided by equity and reasonable justice. Like Mar- 
 shall, too, in writing his opinions he did not quote with 
 mucli freedom from the ideas and decisions of others, 
 and like Marshall, in early life his advantages for ac- 
 quiring an education were limited, but he made tho 
 most of those he had, and was the artificer of his own 
 fortune. 
 
302 LAWTEK AND CLIENT. 
 
 At the age of forty-six John Marshall was appointed 
 Chief Justice of the United States by the elder Adams. 
 Though he had been a member of Congress, had held 
 other high and responsible positions, and was at the 
 time Secretary of State, his qualifications for discharging 
 the duties of his high Judicial office were apparently 
 limited. His legal studies were confined to one course 
 of law lectures, which he attended while a soldier in the 
 army of the revolution, stationed at Philadelphia, and 
 he had practiced but three years. And thus, as he 
 quaintly said of himself, " When I was appointed 
 Chief Justice I knew very little about book-law." But 
 immediately after his appointment he commenced a 
 systematic course of legal studies, to which he applied 
 himself with an inflexibility of purpose that subordinated 
 all other objects to it, and with a success that enabled 
 him, to use the' somewhat exaggerated language of Wil- 
 liam Wirt, "to sit on the bench like a descended god." 
 
 When Walworth was appointed Chancellor he was 
 thirty-six years old, had been ;iiember of Congress and 
 a Circuit Judge. While he was at the bar he had a 
 very extensive and responsible practice and stood at the 
 head of a very distinguished legal firm. In his address 
 to the bar on assuming the duties of Chancellor, with 
 the frankness of Marshall, he spoke of his limited 
 knowledge of Chancery law and his want of early ad- 
 vantages. It is customary for men entering on the dis- 
 charge of important duties to speak of their own ina- 
 bility, and to throw themselves upon the generosity of 
 those over whom they are to preside. Whatever sup- 
 posed want of knowledge prompted Walworth to make 
 this admission, it is certain, as has already been said, he 
 
REUBEN H. WALWORTH. 303 
 
 possessed rare qualification for an equity judge. It 
 cannot, however, be said tliat he possessed those elements 
 of greatness, that sagacious judgment, lofty dignity, 
 natural courtesy and uniformity of temper, which ex- 
 empts the Marshall from the Greek maxim — that 
 " there never was yet a very great man without some 
 very great folly annexed to him. " 
 
 It must not be supposed that Reuben H. Walworth, 
 as a magistrate, was without faults. "With his singular 
 capacity for administering the preventative and specific 
 relief of equity to numerous parties and complicated 
 interests, he blended many infirmities. His friends, 
 however, insisted that his faults were merely the result 
 of caprice, and not radical in his nature ; while others 
 insist that they were deep-seated, and permeated his 
 whole judicial character. It has also been asserted that 
 the tree which has produced such evil fruits must be 
 corrupt. But it is certain that in private life Chancel- 
 lor Walworth was a man of great purity of character. 
 
 As has been said of Sir Samuel Eomilly, "he was a 
 person of the most natural and simple manner and habits 
 — one in whom the kindliest charities were blended with 
 unrelaxed sincerity of purpose." * * * 
 
 One of his official faults was the habit of enforcing 
 the rules of his court with illiberal exactness, sometimes 
 with acrimony, especially in cases presented by young or 
 inexperienced lawyers. This gave him the ill-will of 
 that class of the profession. 
 
 As he always wrote his name with some ostentation, 
 "E. Hyde Walworth," certain members of the junior 
 bar, taking advantage of this, in retaliation for sharp 
 raps received from him, gave him the name of " Raw 
 
304 LAWYER AND CLIENT. 
 
 Hide Walworth." One morning, as he was taking his 
 seat on the bench, at an equity term held at Albany, he 
 discovered a paper having the appearance of a neatly 
 folded document, with the words "Raw Hide Wal- 
 worth" indorsed on the back of it. Taking it up with 
 a humorous expression on his face, he handed it to the 
 late Marcus T. Eeynolds, who was standing near, re- 
 marking in a voice loud enough to be heard by all in the 
 room, "Eeynolds, see how much pains some one has 
 taken to expose his ignorance in spelling." This was the 
 last missile of the kind ever received. 
 
 The Chancellor had a disagreeable habit of inter- 
 rupting counsel in the course of an argument, by asking 
 questions that anticipated the point or points in the 
 case. In this way he often rendered himself as for- 
 midable an opponent as the opposing counsel. Then 
 again, he would propound a question, apparently quite 
 out of the line of the case, but which his own active, 
 discerning mind saw was virtually material and perti- 
 nent. 
 
 "An advocate before Chancellor Walworth," to use 
 the language of Mr. Charles Edwards, " had to know 
 all his declensions, or he was put by interruption quite 
 of court, unless, like the late Mr. Abraham Van Vech- 
 ten, of the Albany bar, he could manage to avoid re- 
 sponding categorically to any and all the equity judge's 
 incessant propositions and suppositions." 
 
 " Suppose, Mr. Van Vechten," said he to that emi- 
 nent lawyer, who was conducting an argument before 
 him, " suppose that A. should " 
 
 " I am coming to that, your honor," said the lawyer, 
 and the Chancellor was silenced for the time being. 
 
REUBEN H. WALWORTH. 305 
 
 In a few moments, however, he again interrupted the 
 counsel. 
 
 "Supposing," said he, "that the receiver has ap- 
 plied the fund to " 
 
 "I am coming to that, your Honor," said Van 
 Vechten. 
 
 "Why don't you come to it, then ?" 
 
 "Because your Honor will not permit me to," was 
 the reply. 
 
 "Go on, sir; go on." 
 
 Still the interruptions continued, but the counsel, 
 by the constant repetition of "I am coming to that, 
 your Honor," jumped every one of the Chancellor's 
 hypothetical volunteer replications and bars, going 
 through his brief and sitting down without ever 
 " coming to that." 
 
 The mind of Walworth exhibited clearness of per- 
 ception and sharpness of analysis — the polish and cold- 
 ness of Parian marble, operating with geometrical ex- 
 actness. It was too prosaic, literal and practical to be 
 affected by the most impassioned eloquence. He list- 
 ened to the loftiest fights, the boldest combinations, 
 the most touching appeals of oratory, with the most 
 stolid indifference of the man who, while listening to 
 the thrilling incantations of " pale withered Hecate" 
 casting her terrible night-gathered offerings into the 
 mystic caldron, asked a friend sitting near him, "how 
 much did that queer-looking kettle cost ?" 
 
 It is related that an eminent counsellor, distinguished 
 for his fervid eloquence, once appeared before Walworth 
 in a case admitting some amplification — some drafts on 
 the imagination. He opened the case in perfect good 
 
300 LAWYER AND CLIENT. 
 
 taste, with a carefully prepared but brilliant exordium, 
 which held the bar, suitors and spectators in breathless 
 attention. Suddenly, like the jarring travesty of dis- 
 cordant notes in a beautiful, touching anthem, came 
 the voice of the Chancellor, interrupting the speaker 
 with the question : 
 
 " When was this bill filed ?" 
 
 The counsel gave a respectful answer, and continued 
 his speech. He had proceeded but a few moments when 
 the voice of Walworth again rang suddenly and harshly 
 out, breaking the spell which the speaker had thrown 
 over his audience. 
 
 "Why," he asked, "was Eawson not made a party 
 here ?" 
 
 He was answered, and once more the speaker moved 
 on in a flow of fascinating eloquence. But just as he 
 had partly completed a climax of great beauty and ef- 
 fect, the question, " Why was Lambert made respondent 
 here ?" came crashing from the bench, startling as the 
 clangor of a gong. This was too much for the hitherto 
 imperturbable speaker, and his eloquence withered 
 away like " the stuff dreams are made of." 
 
 ISTotwith standing all these imperfections, when he 
 came to a decision in a case it usually squared with 
 every principle of equity and justice. It has been well 
 said, if his demeanor on the bench was sometimes open 
 to criticism, it was that only which has been applied to 
 kindred talents, — that he was prevented by his incon- 
 ceivable rapidity of thought from patiently accompany- 
 ing counsel in their slow approach to the important 
 and decisive points in a cause, consequently he was held 
 in high esteem by the bar and the public throughout 
 
EEUBEN H. WALWOETH. ' 307 
 
 the nation, because his great qualities as an equity judge 
 had by the lapse of time been made apparent behind all 
 his errors. 
 
 When the Court of Chancery was about to close its 
 last sitting — when its Chancellor, after presiding over 
 it nearly twenty years, was about to. retire to private life 
 — a touching incident occurred, as pleasing to the bar 
 as it was just to Walworth. Mr. Murray Hoffman, after 
 closing an argument of great vigor and brilliancy, re- 
 ferred to the term about to close foi-ever in a beautiful, 
 expressive and vivid address, in which he briefly and 
 justly reviewed the long career of the Chancellor on the 
 bench of a court renowned wherever justice and equity 
 were known and respected. 
 
 As the French in former times exhibited respect for 
 their kings by crying " Quand meme," so posterity will 
 respect and venerate the name of New York's last Chan- 
 cellor, notwithstanding his faults — notwithstanding un- 
 worthy descendants have tarnished the name of Wal- 
 worth. 
 
 But to return to the scene in the court-room at Sara- 
 toga. 
 
 Several times -during his argument Collier was inter- 
 rupted by the Chancellor — on one occasion by his asking 
 " why certain surplus funds were not applied to the 
 extinguishment of a debt against the bank in New 
 York ?" 
 
 " I do not see how that would have affected the case, 
 your Honor," said Collier. 
 
 "The good book, which, by the way, you are a 
 stranger to, Collier, says there are those who, having 
 
308 LAWYEE AND CLIENT. 
 
 eyes, see not, and ears, hear not," said Dickinson, 
 busily arranging his notes. 
 
 "You are always quoting Scripture, Dickinson, and 
 you quote poor enough, but if you could quote law half 
 as well, the bar would not always be thinking that a fair 
 camp-meeting preacher had been spoiled in making an 
 indifferent lawyer," said Collier. 
 
 "How cross you are to-day, John ! Since you can- 
 not stand a joke, you should never try your wit, for it 
 isn't sensible ; it trips, and you are always breaking 
 ypur own shins over it," said Dickinson. 
 
 A rap from the bench ended this facetious departure, 
 and the counsel proceeded. As it was highly necessary 
 for the young lawyer to leave for home that day, he was 
 fearful the lawyers would not give him an opportunity 
 of being heard. At length Collier closed, but before 
 the young man could address the court Dickinson was 
 on his feet, and had commenced his argument. The 
 only alternative of the would-be solicitor was to inter- 
 rupt the counsel, or remain until the next day, He 
 therefore determined to adopt the former course, and 
 without further hesitation said : 
 
 "Mr. Dickinson, will you be kind enough to sus- 
 pend your argument long enough for me to take the so- 
 licitor's oath ? My great haste to return home is my 
 apology for asking the favor." 
 
 Another sharp rap from the Chancellor's gavel 
 evinced his displeasure at the interruption. 
 
 "Proceed, Mr. Dickinson," said he, "the young 
 man should not interrupt counsel ; there is no apology 
 for that. Wait, young man, until the conclusion of 
 the argument. Go on, Mr. Dickinson." 
 
KEUBEN H. WALWORTH. 309 
 
 "Oh, no, your Honor ; I will cheerfully suspend for a 
 matter so very important. The State of Ifew York needs 
 just one more Solicitor in Chancery, and I think this 
 young man ought to be the one. So, take the oath, sir, 
 and remember it ; I'll wait for you," said Dickinson. 
 
 "I am obliged to you, sir," said the young man. 
 The Chancellor then proceeded to administer the oath 
 to him. That done, he signed the roll and was a so- 
 licitor. "Now, Mr. Solicitor," said Dickinson, "re- 
 member you are a solicitor by my permission, so don't 
 beat me in the first lawsuit in which we are opposed." 
 
 "I shall never forget your courtesy, sir. Life has 
 many changes aud I may meet you again some time, 
 though I hope, for my own sake, not as an opponent in 
 any case I may have," said the newly-made solicitor, as 
 he was leaving the court-room. 
 
 Years sped away. Amid the ever-changing scenes of 
 life, ardent labor and many trials — sometimes exhila- 
 rated with success, then depressed with defeat, the young 
 lawyer made his way in his profession. He never met 
 Mansfield Walworth again, who, with superior advan- 
 tages, powerful influences — with his father's fame radi- 
 ated upon him — with high aspirations — some ability, but 
 "warped to wrong" — an instrument strangely attuned, 
 jarring with wild contrasts — flinging off some melo- 
 dies, he entered life to struggle — to fail — to greatly err, 
 and finally to die, the victim of a dark, unnatural 
 crime. 
 
 In the autumn of 1846, the young solicitor was en- 
 gaged in the argument of a case before the Chancellor 
 at Albany, Mr. Dickinson was his opponent. When the 
 
310 LAWYER AND CLIENT. 
 
 arguments were concluded, the former, approacliing his 
 distinguished antagonist, said : 
 
 " You do not remember me, Mr. Dickinson, though 
 I am here by your permission." 
 
 " By my permission ?" 
 
 "Yes, sir ; by your permission." 
 
 " Do you not remember that three years ago, while 
 yourself and Mr. Collier were engaged in the argument 
 of a case before the Chancellor at Saratoga, a young man 
 asked you to suspend your argument long enough to 
 permit him to take the solicitor's oath? 
 
 " Certainly I do. Are you the person ? That much- 
 needed solicitor." 
 
 ' ' I am ; and I have never forgotten your courtesy, 
 though it was slightly ironical." 
 
 "You managed the matter of your admission ex- 
 ceedingly well, and from what I have heard of you I 
 made no mistake in deciding that you should be the 
 next solicitor," said Mr. Dickinson. 
 
 At last there came a time when the names of "Wal- 
 worth and Dickinson were written on the marble be- 
 neath which their ashes repose. But the young student, 
 "the much-needed solicitor," is still actively engaged 
 with the duties of a profession to which he is ardently 
 attached. Many years of toil and care — many pleasing 
 associations with his brethren of that profession — ^the 
 unutterable memories of the lamented dead, have 
 deepened that attachment. In the midst of "that ani- 
 mation of contest," known only to the bar, he has found 
 time to twine an humble wreath to their memory — to 
 gather, in his own Bench and Bar, the fast-fading remi- 
 niscences of those who, unsullied and gifted in tho 
 
EEUBEN H. WALWOETH. 311 
 
 discharge of high and sacred duties adorned the bar, and 
 were venerated on the bench ; and thus he has lived to 
 weave a votive offering to the memory of all who wit- 
 nessed the oath that made him a solicitor in the Old 
 Court of Chancery. 
 
MAETIN VAN BUEBN. 
 
 His Student and Law Partner, Benjamin F. Butler — Their 
 Career at the Bar — Their Compeers and their Enemies — 
 Their Triumphs at the Bar— The Founders of tie Demo- 
 cratic Party. 
 
 Amoistg the eminent friends of Martin Van Buren, 
 none were more conspicuous than Benjamin F. Butler. 
 In many respects both Van Buren and Butler may be 
 called epoch men— persons whose minds, energies, opin- 
 ions, political and professional, are indelibly impressed 
 upon the history of the long and interesting jDcriod in 
 which they lived. 
 
 As was said of Chief Justice Eutledge, whose career 
 at the bar resembled Van Buren's : " He was employed 
 in the most difficult causes, and retained with the 
 largest fees given in his day. The client in whose ser- 
 vice he engaged was supposed to be in a fair way of 
 gaining his cause. His qualities as a lawyer and advo- 
 cate were of a character to ensure success. He had a 
 penetrating judgment, and great quickness of percep- 
 tion ; intuitively seizing upon the strong points of a 
 case, presenting them to the court and jury with re- 
 markable energy, eloquence and success." 
 
 He began the study of law at the early age of four- 
 teen, and his professional learning was based on a sys- 
 tematic course of seven years' study of law and the 
 classics. 
 
 [312] 
 
MARTIN VAN BtJEEN. 313 
 
 As he was dependent on his own resources, he 
 obtained the means of support by teaching school in 
 winter, until his eighteenth year, when he commenced 
 practice in justices' coiirts with great success. 
 
 His preceptor was Francis Sylvester, an eminent 
 lawyer, who took great pains with his student. After 
 Van Buren had gained some experience in justices' 
 courts, he was engaged to try a case against Sylvester 
 himself. Not the least daunted, the student came for- 
 ward to the table where the justice and his preceptor 
 sat. The moment the latter saw him he seized him, 
 lifted him on to the table, exclaiming : " Gentlemen 
 of the jury ! here is little Mat, come to beat his mas- 
 ter !" " You can handle me much easier than you can 
 the law, that I shall show the court and jury, Mr. 
 Sylvester," said Van Buren. The case proceeded to 
 trial, and, sure enough, little Mat won his case. 
 
 It was once said of Chalmers, the youth of Scotland, 
 some hundred years hence, will not be putting any such 
 question as this : " Thomas Chalmers ! — who was he ?" 
 for, from duke to laird, from the learned and the 
 gifted, to the religious cottager of Scotland's remotest 
 glens, when generation after generation has passed 
 away, his memory will be freshly preserved, and deeply 
 reverenced. So may we say that after many ages have 
 vanished, the lawyer, the legist, the codifier, and the 
 statesman, will not put the question : Benjamin F. 
 Bntler ! — who was he ? The Revised Statutes of the 
 State of New York, in part the offspring of his genius 
 and learning — the rejoorts of adjudicated cases — the 
 records of cabinet ministers — the recorded opinions of 
 the Attorney-Generals of the nation — speeches imbued 
 
314: LAWYER AND CLIENT. 
 
 with Tuscan elegance arid strength, will ever tell posterity 
 who Benjamin P. Butler was, and the State of New 
 York Avill forget him when she forgets the great historic 
 lights of her jurisprudence, the founders of her legal 
 system, and her eminent statesmen. As to the exact 
 place he should be assigned among these, there may be 
 room for a difEerence of opinion, for light which too 
 partial friendship, and the shadows which too im- 
 placable enmity cast upon his character, still linger 
 about it. 
 
 It is not pretended that in pure intelligence, genius, 
 eloquence, strength of intellect, or in any single element 
 of moral or mental excellence, he surpassed all the 
 gifted men of his times. But " taken altogether, mind, 
 heart, yisible bearing, andvariety of talents, he naturally 
 took a prominent position in any assemblage of distin- 
 guished persons in which it was his fortune to be 
 placed." Tlie admitted merits of others do not detract 
 fz'om his, or render them ambiguous. He was often in the 
 society of men who surpassed him in ability — or at least 
 who had the reputation of surpassing him ; but they 
 never dislodged him, in the view of the public, from his 
 own eminent iDosition — did not obscure those qualities 
 that gave him this position. It is said of Goldsmith 
 that he had a natural affinity for the society of the 
 learned and distinguished men, that long before he 
 reached that pedestal of fame from which posterity views 
 him, his associates were Johnson, Foot, Garrick, Church- 
 ill, Coleman, Burke and Boswell — scholars, writers, poets, 
 orators and wits — names resplendent in the history of 
 English literature. So with Butler ; while yet a student 
 at Hudson he attracted the attention and gained the 
 
MARTIN VAN BUEEN. 315 
 
 friendship of some of the most eminent men in the 
 State. 
 
 " He was born at Kinderhook Landing, December 
 17, 1795. His father was a merchant in moderate cir- 
 cumstances. His early years were passed in attending 
 a common school, and aiding liis father in his store. 
 "While thus engaged he became a favorite of a Presby- 
 terian clergyman in the neighborhood, tie was a man 
 eminent for his piety, high-toned, generous, scholarly, 
 and endowed with those qualities naturally attractive to 
 young and ardent minds. This good man, duly appre- 
 ciating the constitution and susceptibilities of Butler's 
 nature, inscribed upon his mind traces of light and 
 beauty, of religion and virtue, which were never erased 
 by his faults, however numerous. Prom this clergyman 
 he received his first knowledge of the classics and of 
 literature. 
 
 " When young Butler attained his fourteenth year, 
 he was sent to Hudson Academy, where he soon gained 
 high standing as a scholar, and where he prepared to en- 
 ter college. A few years previous to his entrance into 
 Hudson Academy, a young lawyer, who had practiced 
 a short time in a small village in Columbia county, re- 
 ceived the appointment of Surrogate and removed to 
 Hudson, where he discharged in an acceptable manner 
 the duties of his office and of his profession. He had 
 gained a high reputation for legal and rhetorical talents 
 at a bar where W. W. Van Ness, Elisha Williams, Jacob 
 Van Eensselaer, and others as distinguished as they, ap- 
 peared. Political dissension was then high and bitter, 
 the uncompromising acerbity, the domineering ambition, 
 the aristocratic tendencies of the Federal leaders, were 
 
316 LAWTEE AND CLIENT. 
 
 ojjposed by the young Democratic party, under Jeffer- 
 son, its great intellectual light, the source of its rational 
 and active elements so signally triumphant in the great 
 contest of 1800. 
 
 "The young lawyer was a Democrat, and as the emi- 
 nent persons we have named were distinguished at home 
 and abroad as Federal leaders of extended influence, he 
 was compelled to contend in the political and legal 
 arena against men so powerful. For him, therefore, 
 the struggle was trying and his labor intense. He had 
 no powerful friends, no wealth to aid him. But he be- 
 longed to the common people ; his sympathies were with 
 them. He was their representative, their leader. Like 
 Bolingbroke, he seemed formed by nature to delight in 
 struggling with opposition, and, indefatigable in raising 
 himself enemies, to exhibit his power in subduing them. 
 Like this gifted and erratic Englishman, ' his vivacity 
 was always awake, his apprehension quick, his wit sharp 
 and ready ; his subtlety in thinking and reasoning was 
 profound, and all these talents were adorned by an elo- 
 cution that was irresistible.' 
 
 "With these advantages, and the most unwearied 
 exercise of all his abilities, he became a formidable, suc- 
 cessful, and detested opponent of the Federal party. 
 Butler had been at Hudson two months, wlfen the 
 young lawyer was elected a State Senator against a dis- 
 tinguished Federal politician, and against a powerful 
 opposition. Among those who largely aided in his elec- 
 tion, was the father of young Butler ; therefore the 
 Senator elect extended the gratitude he owed the father 
 into a warm friendship for the son, and he often invited 
 the latter to his ofSce and house, — encouraged and di- 
 
MARTIN VAN BUEEN. 317 
 
 rected him in his studies, beliolding with pleasure the 
 rapid progress of the young student. Wlieu finally iiis 
 academic course was ended, he became a student at law 
 in the office of the rising young lawyer. Step by step 
 the young advocate ascended to distinction and fame 
 until lie attained the highest honors within the gift of 
 the great republic. That name is Martin Van Buren." 
 
 "Young Butler closely followed his footsteps, 
 though he did not ascend so high up the ladder of fame 
 as his preceptor." 
 
 " In the Spring of 1816, Van Buren removed to Al- 
 bany, and entered at once upon an extraordinary pro- 
 fessional and political career. He first took his seat in 
 the State Senate in January, 1813. His dress and per- 
 sonal appearance were subjects of a satirical attack by 
 his enemies. He was dressed in a green coat, buff 
 breeches, white-topped boots, and carried in his right 
 hand a light ivory-headed cane. These, with his fop- 
 pish bearing, caused him to appear more like a sporting 
 man than a Senator. Being slight in form and small 
 in stature, his person was sneered it. When, in 1845, 
 he was a successful candidate for Attorney-General, a 
 leading Federal journal spoke of him as follows : ' How 
 is it possible that this dapper little fellow, whose mind 
 is as contracted as his body is small, and who appears 
 more like Sir Fripiing Fop than a lawyer, should have 
 the impudence to aspii-e to the position of Attorney- 
 General, especially as the opponent of a civilian so dis- 
 tinguished and learned as is Mr. Van Veehten ; but it 
 is another case of vaulting ambition o'erleaping itself.'" 
 
 "Notwithstanding the fierce and unrelenting opposi- 
 tion of his enemies Van Buren was appointed Attorney- 
 
318 LAWTEE AND CLIENT. 
 
 Genera] in place of the accomplished and scholarly Hil- 
 dreth, who had resigned that office," 
 
 Those who watched the career of Martin Van Buren, 
 and listened to his persuasive, often magnetic eloquence, 
 were reminded of Boswell's unique description of a cele- 
 brated English orator, while addressing the electors of 
 York from the hustings. 'It was,' says Boswell, 
 ' what seemed a mere shrimp, mount the rostrum, and 
 I wondered what the little creature intended to do. 
 Presently he began to speak ; the first words he uttered 
 caught my attention ; his language, his look, his actions 
 all harmonized and attracted attention, and as I listened, 
 he grew and grew, until the shrimp became a whale.' 
 With such talents it is not strange Martin Van Buren, 
 even against the most bitter opposition, became primus 
 inter illustres — the prince of the Senate." 
 
 It was the fortune of Martin Van Buren to en- 
 counter the gigantic intellect and extensive popularity 
 of De Witt Clinton. It is true that when Van Buren, 
 in 1812, entered the State Senate, he strongly sup- 
 ported Clinton, then a candidate for President of the 
 United States, against James Madison. At that time 
 Presidential Electors were appointed by the Legislature 
 by Joint ballot, and the State of New York, ever true to 
 Clinton, gave him her vote for the presidency, as did 
 a large number of other States ; but Mr. Madison was 
 elected. 
 
 In the varied and shifting scenes of the political 
 drama that followed. Van Buren united his fortunes to 
 the most persuasive, popular, and successful politician 
 of that day, Daniel D. Tompkins, and from that time 
 to the close of Clinton's life he was his political antago- 
 
MABTIN VAN BUKEN. 319 
 
 nist. A powerful party, composed of many influential 
 men in the State, with Van Buren, Tompkins and 
 General Brastus Eoot at its head, was soon formed. It 
 was the substructure of the great Democratic party that 
 subsequently ruled the State so many years. The skill 
 and tact with which these men acted, with the splendid 
 talents of Benjamin P. Butler, who joined them at a 
 later period, — the facility with which they moulded the 
 minds of the people to their purposes — the prudence 
 which they gave to their energetic ambition, were 
 leading them to irresistible influence and power. 
 
 " There was then but one man in the State that could 
 hold them in check, that could 'neutralize their power.' 
 This was De Witt Clinton. If we may be allowed the 
 expression, his influence with the people was stupen- 
 dous. Occasionally his enemies were enabled to gain a 
 momentary triumph over him, as they did in the Legis- 
 lature of 1824, when, by a concurrent resolution, he was 
 suddenly removed from the office of Canal Commis- 
 sioner. Like Galileo, Columbus, Fulton and Morse, his 
 history presents the presence of great predominant 
 ideas, the realization of which promoted the happiness 
 and prosperity of his counti-y, and like all public bene- 
 factors, who find that the task of benefiting society is a 
 thankless one, he was compelled to contend against ig- 
 norance, jealousy, cupidity, envy, hatred and malice. 
 But his hold upon the afEections of the people was so 
 strong, the rapidity of his conceptions,; his inexhausti- 
 ble energy ; his prompt decision, that never suffered a 
 moment's pause between purpose and execution, sus- 
 tained by an intellect as powerful as it was active ; a 
 presence of mind which amidst sudden reverses on the 
 
320 LAWYER AND CLIENT. 
 
 very brink of ruin devised the means ot escape, and a 
 courage tliat never faltered, rendered liim invulnerable, 
 with few exceptions, in a contest that continued from 
 the day he entered public life down to the 28th of Feb- 
 ruary, 1828, when his death, a national calamity, dis- 
 solved the great power which held in check the ambi- 
 tious schemes of Martin Van Buren and Benjamin P. 
 Butler, opening the way to the advancement of the for- 
 mer to the chief magistracy of the republic." 
 
 When Van Buren removed from Hudson to Albany, 
 Butler accompanied him, continuing with him until he 
 was called to the bar, which event took place in 1817. 
 Immediately after his admission, he became a partner 
 of Mr. Van Buren, and the firm was soon considered one 
 of the most distinguished in the State, not only for its 
 influence in the legal world, but for its controlling 
 power in politics. It continued to exist until 1827, 
 when Mr. Van Buren was elected a Senator in Congress, 
 and when, in a measure, he withdrew from the legal 
 profession, devoting himself ever after to the statesman- 
 like career he had marked out for himself. That his 
 /opponents detected faults in that career cannot be de- 
 nied, for with all his strength of character, he pos- 
 sessed and practiced those unscrupulous arts without 
 which political power is rarely attained. One of the 
 great secrets of his success was the discernment he ex- 
 ercised in the selection of his friends and allies. In this 
 he excelled the subtlety of Eichelieu, Buckingham and 
 Halifax. When Van Buren withdrew from the legal 
 profession, he left the immense business of Van Buren 
 and Butler to be closed up by the latter. This brought the 
 latter, to the front ran k of the legal profession in the State. 
 
MARTIN VAN BTTEEN. 321 
 
 " He distinguished himself as the assistant of Aaron 
 Burr in the trial of the celebrated Medcef-Eden case, 
 which engaged the attention of the State courts so many \ 
 years that it became as familiar to the bar as that of ,1 
 Jarndyce v. Jarndyce did to Enjrlish lawyers. It was a / 
 case full of romantic interest, commenced by Burr after \ 
 his return from Europe, when reduced almost to / 
 penury, but its final result and the manner in which it j 
 was conducted exhibited the splendid legal talents of I 
 that singular man, and the deep learning of his assistant. ' 
 
 " The first case which Mr. Butler argued before the 
 general term of the supreme court was in 1820, when 
 he argued the celebrated case of the People v. Foot. 
 His opponent was Thos. J. Oakley, whose unsurpassed 
 legal abilities adorned not only the bar of the State, but 
 of the nation. His first appearance in the Court for the 
 Correction of Errors was in the cause of Manahen v. 
 Gibson. Soon after this he argued the leading cases of 
 Troup V. Smith and Morton v. Crogan before that 
 court. In these cases he was associated with Samuel A. 
 Talcott, ever a warm personal friend of Van Buren and 
 Butler. Mr. Talcott possessed a powerful intellect — an 
 intellect that illumined everything it touched ; his in- 
 stinctive quickness in seizing the points in a case ; the 
 philosophical precision with which he demonstrated his 
 arguments ; his majestic, yet natural, easy eloquence, 
 replete with learning, rendered his speeches at the bar 
 vividly beautiful in their severe logic, and at times 
 impressive and overwhelming in the splendor of their 
 rhetoric. When the brilliant career of Thomas Addis 
 Emmett was suddenly terminated by death, he was pre- 
 paring to argue a case before the Supreme Court of the 
 11 
 
322 LAWYER AND CLIENT. 
 
 United States that created intense interest tlirougliout 
 the nation. Mr. Talcott was, by universal consent, 
 summoned to conduct the case, as the successor of the 
 great Irisli lawyer. His argument was unrivalled, 
 though he was opposed by Daniel Webster, associated 
 with two of the ablest lawyers in the nation." 
 
 " One of the earliest and warmest friends of Butler 
 was William L. Marcy. When that illustrious states- 
 man resigned his seat in the United States Senate it 
 was his earnest desire that Butler should be his succes- 
 sor. With such influence that dignified position could 
 have been easily reached by him ; but he declined the 
 distinguished honor, adhering rigidly to a determination 
 which he early adopted, " never to accept any office 
 which would withdraw him from his professional studies 
 and pursuits." Soon after this he .was appointed a 
 commissioner, with Theodoi-e Prelinghuysen, of New 
 Jersey, to settle the boundary line betweeen that State 
 and the State of New York." 
 
 In the year 1825 the Legislature passed an act ap- 
 pointing Mr. Butler, John Duer and Henry Wheaton, 
 commissioners to revise the statute laws of the State. 
 But Mr. Wheaton was soon after appointed by the 
 President of the United States charge d'affaires' to the 
 court of Berlin, and John C. Spencer, by a unanimous 
 vote, was elected in his place. It has well been said 
 that the selection of Mr. Butler, who was then com- 
 paratively young, carried with it evidence of the high 
 estimation in which he was held by the people of the 
 State. 
 
 Early in the year 1833 Roger B. Taney, then attor- 
 ney-general of the United States, was promoted to the 
 
MAETIN VAN BUEEN. 323 
 
 office of chief justice of the Supreme Court of the 
 nation, and Mr. Butler was immediately, through the 
 influence of Mr. Van Buren, appointed attorney-gen- 
 eral in his place. This appointment was exceedingly 
 gratifying to all parties. A few days before Mr. But- 
 ler's departure to Washington to enter upon the duties 
 of his office, the citizens of Albany, without distinction 
 of party, assembled and expressed their regard for his 
 virtues as a citizen, and their admiration for his talents 
 as a lawyer. Many of the most eminent men in the 
 State participated in the proceedings of the meeting. 
 In October, 1836, while dischai'ging his duties as attor- 
 ney-general, he was appointed secretary of war, in the 
 cabinet of President Jackson — a position which he held 
 until the 4th of March, 1837. On that day his early 
 friend and benefactor, Mr. Van Buren, entered upon 
 the duties of his administration as President of the 
 Republic. It was his desire that Mr. Butler should 
 continue in the position of secretary of war, but he 
 declined, accepting the office of attorney-general, the 
 duties of which he discharged until April, 1838, 
 when he resigned, and Felix Grundy, of Tennessee, was 
 appointed in his place. The opinions pronounced by 
 Mr. Butler while attorney-general, are regarded as 
 dignified state papers, bearing the impress of an en- 
 lightened and accomplished mind, the intellect of a 
 profound lawyer. After resigning the office of attorney- 
 general he returned to his native State and adopted the 
 practice of his profession, in which he continued with- 
 out interruption until the close of his life. The only 
 office he accepted was that of United States district- 
 attorney for the southern district of New York, which 
 
324 LAWYER AND CLIENT. 
 
 he discharged for a short time, under the administration 
 of Mr. Polk. 
 
 Mr. Butler's pi-ofessional life extended through the 
 long period of forty-one years, a period the most inter- 
 esting and important in the legal history of the State. 
 The student, in pursuing his studies, is surprised to 
 find in all his books such various memoranda of his pro- 
 fessional labors, while our reports are filled with his 
 arguments on the law questions that occupied the 
 courts during his time, exhibiting the extent of his 
 studies m all branches of legal learning. Butler con- 
 tinued to devote his energies to his i^rofession so in- 
 tensely that his health declined, and in the autumn of 
 1868 he was prevailed upon by liis friends to relinquish 
 his labors and visit Europe. But disease has made such 
 inroads upon his constitution that he was past recovery, 
 and he died at Paris, November 8th, 1868. 
 
 After Mr. Van Buren retired to private life the 
 friendly relations that commenced in the days of their 
 young ambition continued. Friends and associates who 
 had united their fortunes with them had seen the last 
 of earth ; schemes of great ambition had been realized, 
 their fading glories tested. How many fuU-blown 
 hopes of political position ; liow much transient dis- 
 tinction and ephemeral elevation ; how much bartering 
 all that is lofty, pure and generous, for some " bad 
 eminence," had they witnessed in their day, and at last 
 all was ended! But scenes like these have continued. 
 Others like them have and will press on to their des- 
 tiny, to success, to failure — and all, or most of them, 
 to oblivion ! 
 
RUFTJS CHOATE AT THE BAR. 
 
 Relations with His Client — As a Criminal Lawyer — Can an 
 Advocate Consistently with Honesty Defend a Person He 
 Knows to be Guilty — The Answer— Choate's Defense of 
 Tirrell — Its Analogy to Ogden Hoffman's Great Defense of 
 Richard P. Robinson for the Murder of Helen Jewett — His 
 Wit and Pleasantry at the Bar — Characteristic Anecdote — 
 His Personal Appearance. 
 
 It has been said that of all American lawyers Eufus 
 Choate was the genius of the bar, and we believe the 
 remark to be true, for, in every sense of the word, all his 
 ambition centered in his profession. "With all its 
 amplest treasures of knowledge at his command, by the 
 exercise of a power of application not usually attributed 
 to genius, by habits of careful and laborious study, in 
 which no man surpassed and few equaled him, mani- 
 festing a real and most earnest sympathy in every case 
 intrusted to him, to the smallest indifferently with the 
 largest, by a sort of resolute instinct of nature, but 
 whicli always co-operated with principle and was sus- 
 tained by it, thus, always doing justice to his client, 
 himself and the occasion, and never found even partially 
 unprepared ; but, before a single judge, with no audi- 
 ence, upon a question claiming little public interest, 
 as learned, as eloquent, as clioice, copious and accurate 
 in language, and equally as fervent in business as if sur- 
 rounded l)y an admiring crowd, so often kindled by the 
 thrilling utterance of iiis lips, for he was still there, 
 
 [32oJ 
 
326 LAWYElt AND CLIENT. 
 
 , doing his duty — his vigor, his fire, his zeal, ever the 
 same — so that it was the true spirit of the man within 
 which led him on and made him true to all time and 
 place, true to all clients, high or low, rich or poor, and 
 thus able to turn time, occasion, circumstance, all 
 things, to the immediate and overpowering purpose 
 which impelled him, as few men are impelled, to do 
 with his might whatever his hands found to do." 
 
 Then again there was no man who infused such 
 entire confidence into his clients as Mr. Choate, and he 
 was equally fortunate in securing the confidence of 
 judges and jurors. 
 
 " There is no such evidence in the case as that," said 
 one juror to another, while consulting in a case that had 
 just been submitted to them, in which Mr. Choate had 
 made the argument for the plaintiff. "You are only 
 telling what Mr. Choate said, not what any witness said, 
 and I tell you again that is not testimony, it is only the 
 talk of a lawyer for his client." 
 
 " Well, I don't care if it is only what Mr. Choate 
 said ; he is always candid, always tells the truth, never 
 knew him to do otherwise.; and then, did you not see 
 how the judge watched every word he said ? I tell you 
 I had rather take what Mr. Choate says than that which 
 is dragged from an unwilling witness or given by a too 
 willing one," was the reply. 
 
 It seems that all the members of the panel concurred 
 with the last juror ; for Choate's client, although his 
 case was somewhat doubtful, -obtained a verdict. 
 
 Pew men had a higher sense of professional honor 
 than Mr. Choate. He believed the American bar stood 
 pre-eminent over the bar of any other nation, and his 
 
EUFUS CHOATE AT THE BAE. 327 
 
 ideas of the office aud duties of an advocate were very 
 exalted. With the illustrious French lawyer, D'Agues- 
 seau, he believed that " the order of advocates is as an- 
 cient as the office of the judge, as noble as virtue, as 
 necessary as justice." 
 
 It is said that during the progress of a trial, though' 
 intently watchful of all the proceedings, he abounded iu 
 good nature and courtesy. "If his wit and pleasantness 
 in the court room," said one of the most eminent of bis 
 profession, " could be gathered up, they would be un- 
 surpassed in all the annals of the law, yet he was always 
 dignified, frequently impressive. To witnesses he was 
 unfailingly courteous, seldom severe, even with the most 
 reluctant, but drawing from thorn the evidence by the 
 skill of his examination. In cross-examining, he knew 
 by instinct when a witness testified to what he knew, or 
 to only what he thought he knew. To the bench he was 
 remarkable for deference in manner, quietness, felicity 
 and precision in language." 
 
 Celebrated advocates at the bar have been distin- 
 guished by some remarkable peculiarity, trait or habit ; 
 thus, Thomas Addis Emmett always in his exordium 
 would liold a pen in one hand and slowly tear the feath- 
 ers from its side till all were torn away; he would then 
 drop the pen and enter ardently into his argument with 
 an eloquejice and zeal that enchained all hearers. 
 
 Webster was accustomed to place his left hand on a. 
 table or desk before him, slightly moving his fingers like 
 a person playing on the k(!ys of an instrument, until 
 warmed with his subject, he launched forth his com- 
 manding and powerful rhetoric and logic. Reverdy 
 Johnson always began his argument with his left arm rest- 
 
328 LAWYER AND CLIENT. 
 
 ing across the small of his back. William Wirt always 
 opened his arguments to the court or jury with his right 
 hand holding a partly opened law-book, one end resting 
 on the table before him. Mr. Choate's manner at the 
 bar has been thus described : " He stood erect and quiet, 
 making no gesture except a slight movement of the right 
 hand from the wrist ; this position was unchanged except 
 when it became necessary to obtain a book, consult an 
 authority or legal document. He would often speak for 
 over an hour, in a low. clear, audible voice, with a felicity 
 of language, logical precision, a succinctness of statement, 
 and gradually advancing in warmth of feeling until his 
 motions and gestures became more and more vehement, 
 then the sweeps of his. arm, the motion of his tremulous 
 hand, the fascination of his eyes, and the charm of his 
 language seemed to come spontaneous and irresistible." 
 
 '' Law," he used to say, " is an art as well as a 
 science. Whilst it has its foundation in a broad and 
 comprehensive morality, and in profound and exact 
 science, to be adapted to actual use in controlling and 
 regulating the concerns of social life and business life, it 
 must have its artistic skill which can only be acquired 
 by habitual practice in courts of justice." " The bench 
 and the bar," said the Hon. Benjamin E. .Curtis, " are 
 mutually dependent on each other for that co-operation 
 which is essential to the steady, prompt and successful 
 distribution of justice. Without tlie support of an able, 
 learned, industrious bar, it is not too much to say that 
 no bench in this country can sustain itself, and its most 
 strenuous exertions can result only in a halting and un- 
 certain course of justice. Without a learned, patient, 
 just and courageous bench, there will not, for any long 
 
KUFL'S CHOATE AT THE BAE. 329 
 
 time, contiuLie to be a bar fitted for its high and difiBcult 
 duties." 
 
 It is not saying too tauoh, that in all coiintries \yhere 
 lawyers are known their exiiniplu and influence as a class, 
 have been, in general, favorable to sound morals, as well 
 as to the advance of civil and r>;ligion freedom. 
 
 Mr. Clioaie's practice was larger and more extended 
 than that of any other lawyer of his times. Much of his 
 time was devoted to the argument of causes before the 
 United States Supreme Court at Washington, although, 
 when time permitted, he was engaged in the trial of 
 causes in all courts. He was frequently engaged in crim- 
 inal causes celebre. Though criminal law practice really 
 hud little attraction for him, yet once engaged in a great 
 criminal case he devoted all his great intellectual powers, 
 and all- his learning to bring it, as he usually did, to a 
 successful termination, even though public opinion was 
 strongly against his client. 
 
 Mr. Choate had a conscientious regard for the real 
 right and justice of a case. He would never undertake 
 the defense of a criminal whom he believed to be guilty ; 
 and yet, he did occasionally succebsfully defend criminals 
 about whose guilt there conld be no doubt. This occurred 
 in the Tirrell case ; but in all such cases he believed his 
 client innocent. If, for any reason, after he became fairly 
 engaged in a case, lie had doubts of his client's inno- 
 cence, still >-vith rigid fealty he continued the defense. 
 
 LilvC Lord Brough.ini, he believed that no discovery 
 of corruptivjn oi- turpitude on the part of his once recog- 
 nized client can Justify a lawyer in ceasing to represent 
 his interests as long as he is entitled to a fair and im- 
 partial trial. 
 
330 LAWYEE AND CLIENT. 
 
 He used the utmost caution in accepting retainers 
 in criminal and in all other cases, exhausting every 
 effort to ascertain the real right of the case presented to 
 him. 
 
 Like the learned and venerated Nestor of the west- 
 ern New York bar, Vincent Mathews, he often resorted 
 to subterfuge in his efforts to ascertain the guilt or in- 
 nocence of those who sought his services. He used to 
 relate with infinite pleasure the keen artifice which 
 Mathews once used to detect the guilt of a man who 
 sought to engage him to conduct his defense on his trial 
 for murder. The man had been indicted for killing his 
 wife by poison. After cautiously drawing from the man 
 his relation of the case, putting to him several ingenious 
 questions, the astute lawyer said : 
 
 "The circumstances are against you, and I dislike 
 very much to undertake your defense ; but if I believed 
 you innocent, I would not hesitate." 
 
 The man asserted his innocence with great vehe- 
 mence, but his words did not quite convince the saga- 
 cious counselor. 
 
 "I have two wi^ys of defending a man charged with 
 crime. If I think him innocent, 1 trust very much to 
 that, and the difficulty of fabricating evidence that will 
 convict. But, if I think him guilty, if I undertake the 
 case at all, I make every effort in my power, and leave 
 nothing undone which may tend to save him. Now, 
 sir, which course shall I pursue in your case ?" said 
 Greneral Mathews, fixing his eye keenly upon the man. 
 
 " I — I — think that in my case you had better not 
 leave anything undone," said he. 
 
 This was sufficient ; the man found other counsel. 
 
EUFU3 CHOATE AT THE BAR. 331 
 
 Theodore Bacon, distinguished equally as a lawyer 
 and a thoughtful, concise and elegant writer, in a recent 
 paper read before the American Social Science Associa- 
 tion on " Professional Ethics," said : 
 
 "The popular mind, in considering, as it delights in 
 doing, the duties and the faults of the legal profession, 
 dwells most frequently and most severely upon two cases, 
 which give little concern to conscientious lawyers. The 
 first is the problem of defending criminals known to be 
 guilty. The fallacy involved m the prevalent objection 
 is in the notion that the interest of morality demands 
 always the punishment of bad men. The error is a 
 grave one. The interest of morality and of social order 
 demands, above all things, that a bad man shall not 
 be punished unless he has violated some law; and even 
 that a known violator of the law shall not be punished 
 except by the forms of law. Those established and 
 known laws, those fixed rules of procedure, are all that 
 distinguish the institutions of civilization from the 
 savage cruelty of an oriental autocracy or the blind fury 
 of a western lynching mob. Against any departure from 
 them or disregard of them, every bill of rights sets safe- 
 guards in its prohibition of ex post facto laws and bills 
 of attainder. And every lawyer who interposes against 
 an eager prosecutor or a passionate jury the shield of a 
 strictly legal defense, declaring, you shall not hang or 
 imprison this man, be he guilty or not guilty, until by 
 the established course of procedure, by competent legal 
 evidence, you have proved that he has offended against 
 a definite provision of law, and that the precise provis- 
 ion M'hich you have charged him with violating, is de- 
 fending not so much the trembling wretch at the bar. 
 
3'li I.AWYKK A.N'IJ CLIENT. 
 
 as society itself, Mnd the innocent man who may to-mor- 
 row be driven by clamor to crucifixion. If, indeed, in 
 the excitement of controversy, he quibbles with words, 
 or perverts evidence, he becomes himself an offender ; 
 bat his offense is not that he defends a guilty man, but 
 that he does that which would not be honest if done on 
 behalf of an innocent man. 
 
 "Not very much more frequent, in actual practice, is 
 the supposititious difficulty created by knowing one's 
 client in a civil cause to be in the wrong. It can seldom 
 happen to any honorable lawyer to know his client to be 
 in the wrong. If the counsel is frankly informed by A., 
 ' I have swindled B., and want you to help me keep the 
 fruits of my fraud,' either the coLinsel is an unconscion- 
 able knave, whose services ai-e, for that reason, invoked 
 by A., or he dismisses the proposing client so expedi- 
 tiously that the relation has no opportunity to exist be- 
 tween them. Every lawyer, no doubt, becomes, at times, 
 the adviser and assistant of a villain ; but, if he be an 
 honest one, he promotes his villainy as innocently as the 
 grocer who sells the supplies that keep him alive, or 
 even the locomotive that draws him on his way to accom- 
 plish his designs. Many a lawyer who has meant to 
 keep clean hands and a pure heart, can look back upon 
 this or that completed litigation, and see that his client 
 was both legally and morally in the wrong ; but it is 
 seldom that the incessant and fervent assurances of the 
 client, the proofs and arguments which, all upon one 
 side, he arrays before his counsel, have failed to keep 
 him convinced, from beginning to end, that he must be 
 in the right. A venerable jurist, of the finest sense of 
 honor and the purest integrity, said to me, after fifty 
 
EUFUS CTIOATE AT THE BAB. 33'3 
 
 years of the most liiborious professional life, that he had 
 never but once thought his client in the wrong ; yet, to 
 my positive knou-ledge, he had advocated the causes of 
 some thorough scoundrels. 
 
 "It must sometimes happen, however, in every long 
 career, that one enteiiug upon a litigation iii enthusiastic 
 sympathy with his client, shall, with the progressive de- 
 velopment of the case, find his ardor chilled by dishon- 
 oring disclosures. Even then it may well appear that 
 his continued service will not be the active promotion of 
 wrong ; and if that is so, tlie only effect of the revelation 
 may be that he will render no longer a sympathetic, but 
 merely a fwithful service." 
 
 One of the most important and interesting cases in 
 legal history is that of Albert J. Tirrell, in which Mr. 
 Choate appeared for the defendant, who was charged 
 with the atrocious murder of Maria Bickford. The 
 circumstances pointed so strongly to the guilt of Tirrell 
 that they brought upon him the condemnation of the 
 public. iSTevertheless, after a full and searching inter- 
 view with Tirrell, Choate believed him innocent, and 
 entered into his defense with inflexible ardor, subordi- 
 nating everything else to this belief and to sympathy for 
 him. Perhaps no advocate in defending a criminal ever 
 used finer drawn logic, ever established a more skillful 
 hypothesis, or ever interposed a more powerful and more 
 brilliant defense than that of Mr. Choate in this case. 
 Never did an advocate exhibit greater skill in crushing 
 the theory of a public prosecutor touching the guilt of 
 the accused ; never was there such ingenious blending 
 of apparently discordant circumstances into a beautiful 
 theory of presumptive innocence. 
 
334 LAWYER AND CLIENT. 
 
 The facts in the case we take as reported^ which are 
 as follows: 
 
 " Between four and rive o'clock on Monday morning, 
 October 27th, 1845, a young and beautiful woman named 
 Maria Bickford was found dead in a house of ill-fame in 
 Boston, kept by one Joel Lawrence. Albert J. Tirrell, 
 a person of respectable family and connections, but of 
 vicious life, already under indictment for adultery, was 
 known to have been with her on the previous afternoon 
 and late in the evening, the doors of the house having 
 been locked for the uight.. He had long been a para- 
 mour of hers. On the morning spoken of, several 
 inmates of the house were early roused by a cry coming 
 apparently from the room occupied by these persons, fol- 
 lowed by a sound as of a heavy body falling on the floor. 
 Soon afterward some one was heard going down stairs, 
 making an indistinct noise as if stifled by smoke ; and 
 almost immediately those in the house were alarmed by 
 the smell and appearance of fire. After the fire was ex- 
 tinguished, which was done by the help of a fireman and 
 a neighbor, the body of Mrs. Bickford was found on the 
 floor of the room she had occupied, and where the fire 
 principally was, at some distance from the bed, her throat 
 cut to the bone from ear to ear ; her body much burnt ; 
 a considerable pool of biood upon the bed ; a bowl upon 
 a wash-stand in the corner of the room, with water in 
 it, thick with blood ; marks of blood upon the wash- 
 stand, and the lamp on the mantel-piece ; the bed-clothes 
 piled up in vurions places in the room and in the entry, 
 and partly consumed ; a bloody razor near the body ; 
 also, some stockings, a cravat, and a cane, belonging to 
 Tirrell. Beside this, a fire had been kindled in an ad- 
 
EUFUS CHOATE AT THE BAE. 335 
 
 joining room which was not occupied that night. A 
 woman in the next house, separated from Lawrence's by 
 a brick partition, was waked that morning by a screech 
 as from a grown child ; but on listening, heard the Toice 
 of a woman ; then she heard a strangling noise, and 
 afterward a fall, and then a louder noise. 
 
 "It was also in evidence that Tirrell had called in 
 haste, very early on that Monday morning, at a livery- 
 stable near Bowdoin Square, saying that ' he had got 
 into trouble ; that somebody had come into his room and 
 tried to murder him, and he wanted a vehicle and driver 
 to take him out of town.' These were furnished, and 
 he was driven to Weymouth. He also had called be- 
 tween four and five o'clock at the house of one Head, in 
 Alden Court, not far from the livery-stable, and asked 
 for some clothes which he had left there, saying that he 
 was going to Weymouth. The officers in search of him 
 on the same day did not find him ; but some months 
 afterward he was arrested in New Orleans, and brought 
 to Boston for trial." 
 
 These circumstances, us we have already said, seemed 
 to form a cable of evidence strong enough to drag the 
 prisoner to the scaffold, but Eufus Choate had the cour- 
 age, the skill, the sharp analysis sufficient to disintegrate 
 it and render it powerless. 
 
 He threw doubts upon the testimony of the govern- ■ 
 ment, as the evidence of persons of vile character, by 
 subtly dissecting what seemed certain, and then demon- 
 strating its consistency by a theory of innocence — by 
 artful evidence tending to show that the death of the 
 woman was produced by her own hand or by some per- 
 son other than the prisoner. As has well been said. 
 
336 LAWYER AND CLIENT. 
 
 "this defense was so singular and audacious that it 
 seemed almost to paralyze the attorney-general." After 
 Choato had concluded his plausible, apparently candid, 
 and yet "audacious'' opening, it was curious to watch 
 its effect upon public sentiment ; there was never any- 
 thing like it ; there was no living man but he who had 
 the courage, the skill, the energy and determination to 
 grapple with the defense which he had foreshadowed, 
 one of the features of which was the chronic somnam- 
 bulism of the accused. As soon as he had concluded 
 his opening, notwithstanding the general belief of Tir- 
 rell's guilt, the bench, the bar and the spectators began 
 to think that Tirrell could never be convicted. 
 
 It appeared in the evidence for the defense "that he 
 was subject from his youth to somnambulism ; and that 
 while in this state he made strange noises — a sort of 
 groan or screech — loud and distressing ; that he fre- 
 quently rose and walked in his sleep ; uttering words 
 evidently prompted by dreams ; and that once he pulled 
 a companion with whom he was sleeping out of bed, 
 stood over him, crying out, 'Start that leader! start 
 that leader, or I'll cut his throat !' and then rushed to 
 the door as if to take a knife that had been placed over 
 the latch as a fastener ; that on the morning of the 
 alleged murder, when he went to Head's house, he ap- 
 peared so strangely that he frightened those who saw 
 him, and Head took hold of him and shook him, which 
 seemed to waken him from a kind of stupor, and he ex- 
 claimed, as if frightened, ' Sam, how came I here ?' It 
 was also proved that when informed at Weymouth of the 
 murder and that he was charged with committing it, that 
 be said he would go to Boston and deliver himself up. 
 
EUFUS CHOATE AT THE BAE. 337 
 
 but was dissuaded by his brother-in-law, who furnished 
 him money to take him to Montreal." 
 
 It was further proved that Mrs. Bickford, though 
 beautiful, accomplished and fascinating, was inclined to 
 intemperance, was passionate and wicked, often threat- 
 ening to take her own life ; that she was in the habit of 
 having a razor with her for the purpose of shaving her 
 forehead to make it high ; and had bought a dirk, keep- 
 ing it concealed in her room. Physicians of the highest 
 respectability testified that the wound in the neck of the 
 victim might have been inflicted by herself ; that ex- 
 traordinary convulsions may be made after much blood 
 has left the body, especially if some remains in the head ; 
 that from the nature of the instrument and the physical 
 ability of the deceased, the death might have been sui- 
 cide ; that the prisoner evidently appeared to be a som- 
 nambulist ; that in this somnambulic state a person, 
 can dress himself, can easily and consistently commit 
 murder, set the house on fire and run into the street." 
 These were the strong points on which Mr. Ohoate 
 founded his magnificent argument to the jury which 
 proved him one of the greatest masters of reason, of 
 dialectical ability, and capable of the clearest display of 
 facts and principles, analogies, or tendencies applicable 
 to any case he undertook to conduct. He insisted that 
 the prosecution had failed to show any motive that 
 prompted Tirrell to the commission of the deed ; that 
 the evidence was not incompatible to the theory of self- 
 murder ; that for anything that appeared in the testi- 
 mony a third party might, and probably did commit the 
 murder ; but if committed by the prisoner, it was done 
 when reason, reflection and design were enchained by 
 
338 LAWYER AlTD CLIENT. 
 
 a powerful sleep which did not suspend his physical 
 powers. 
 
 It is greatly to be regretted that no record of this 
 great argument is in existence. Some portions of it, 
 however, were reported at the time for the journals of 
 the day, from which a very correct idea can be formed of 
 the magnificent whole. 
 
 After a comparative brief deliberation, the jury 
 rendered a verdict of " Not guilty," a verdict which, to 
 use the language of another, " has been generally ac- 
 quiesced in by the legal profession as the only one which 
 the evidence would warrant." The general public, how- 
 ever, took another view of it, believing that the evidence 
 in the case was sufficient to convict Tirrell ; that it was 
 Eufus Choate — his overmastering eloquence, his match- 
 less influence over the jury, and the plastic skill in turn- 
 ing the evidence to the advantage of his client, and not 
 his innocence, that gave Tirrell his liberty. Although he 
 was acquitted on the charge of murder, he was in Janu- 
 ary, 1847, brought to trial for arson, in the first degree. 
 This trial, though less celebrated than the first, was 
 equally important and difficult. But Ohoate entered on 
 the defense of his client with the confidence and strength 
 of a victorious champion, and although superhuman 
 efforts were made to convict him by the attorney-gen- 
 eral and his associates, Choate once more listened to the 
 words "Not guilty" as they fell from the lips of the 
 foreman of the jury before whom his client was tried. 
 
 "It was afterward wittily said," says the great ad- 
 vocate's biographer, " that Tirrell existed only by the 
 sufferance of Ohoate." 
 
 It is said that not long after the conclusion of the 
 
RUFTJS CHOATE AT THE BAE. 339 
 
 second trial Tirrell wrote Choate, suggesting that half 
 the fee he had paid him for defending him should be re- 
 turned, " because you know, Mr. Choate, that my inno- 
 cence of the crime charged against me was so obvious 
 that two juries acquitted me after very short deliber- 
 ations, and that I have paid you a sum of two hundred 
 dollars, which is too much by half for conducting such 
 simple and easy causes." 
 
 Mr. Choate replied in his characteristic manner 
 "that he was saved from the gallows by the strongest 
 effort he had ever made in behalf of a criminal, and that 
 three-fourths of the community believed him guilty; 
 that one strong evidence of his guilt was his attempt to 
 cheat his lawyer out of a fee which should at least have 
 been five times as large." 
 
 There is a singular analogy between Choate's defense 
 of Tirrell and that of Ogden Hoffman's defense of Eich- 
 ard P. Robinson, tried for the murder of Helen Jewett 
 in New York in 1836. There is also a most singular 
 analogy between the relation of Robinson with Miss 
 Jewett and that of Tirrell and Mrs. Bickford. Both of 
 these women were beautiful and fascinating ; both were 
 paramours of their alleged murderers ; both men were 
 at the house where the deeds were committed the night 
 before ; there was a similarity in the manner in which 
 their deaths were produced ; an effort was made to burn 
 both houses after the commission of the crime ; and the 
 public coincided in the belief that both men were guilty. 
 But they were both acquitted by a singularly successful 
 defense, defenses which lost nothing of their brilliancy 
 when compared with the most splendid efforts of Burke, 
 
340 LAWTEE AND CLIENT. 
 
 Erskine, Ourran, Sheridan, Webster, Wirt or Thomas 
 Addis Emmett. 
 
 Mr. Ohoate's argument in the Oliver Smith will case 
 ranks among his most splendid efforts among his ciTil 
 actions, overshadowing the powerful argument of his 
 illustrious opponent. 
 
 Edmund Burke was Mr. Ohoate's ideal of a lawyer, 
 writer, statesman and orator. He once asked in a letter 
 to Charles Sumner, " What coxcombical rascal is it who 
 thinks Bacon, Bolingbroke, Milton, or any other En- 
 glishman, a better writer than Burke ? Take page by 
 page the allusions, the felicities, the immortalities of 
 truth, variety, reason, height, depth, everything, and 
 Bolingbroke at least is a voluble prater compared to 
 Burke. Indeed, out of Burke might be cut fifty Mack- 
 intoshes, one hundred and fifty Macaulays, forty Jef- 
 fries, two hundred and fifty Sir Robert Peels, and then 
 leave him greater than Pitt and Pox together." 
 
 As was said of Alvan Stewart, Ohoate's rare humor 
 seemed at times to interpenetrate all his thoughts. 
 There were springs of great pathos in him, a power of 
 touching, the sensibilities, a brilliant fancy easily called 
 to his aid that illuminated his pathway through the 
 driest details of fact and law, a mastery of the philoso- 
 ' phy of his subject, a grand and sweeping style which 
 bore both judge and jury along as on the current of a 
 river. 
 
 Mr. Ohoate's pleasantry never deserted him ; it was 
 always with him, in victory or in defeat. "It was a 
 safeguard against depression and discouragement. It 
 was never misunderstood for a moment bv those who 
 
EUFUS CHOATE AT THE BAE. 341 
 
 knew him ; with it he lightened the disappointment and 
 despondency of others beaten in lawsuits." 
 
 One morning he received a note from a lawyer asso- 
 ciated with him in the argument of a cause at Washing- 
 ton, informing him that the court had decided against 
 them ; he immediately wrote back as follows : 
 
 Deak Sir : — The court has lost its little wits. Please let 
 me have, 1st. Our brief (for the law) ; 2nd, The defendant's 
 brief (for the sophistry); 3d, The opinion (for the foolishness), 
 and never say die. R. 0. 
 
 We have considered Mr. Choate only as the lawyer 
 and his relations to the jury and to the courts, without 
 any extended reference to his splendid genius as a littera- 
 teur, his unsurpassed strength and logical depth as a 
 writer, his chaste imagination, his lively but well-disci- 
 plined fancy, his acquirements as a scholar, and his 
 profundity and tact as a parliamentary debater. There 
 is one characteristic, however, to which we wish to refer 
 — his hatred of all snobbish pretension and all ostenta- 
 tious, purse-proud display. This we shall illustrate by 
 the following characteristic anecdote : 
 
 A southerner of this class, of considerable wealth, and 
 more self-importance, of the name of Brainsteed, once 
 visited Boston, stopping at the Eevere House. In con- 
 sideration of his wealth and his relation to southern 
 chivalry, the proprietors gave him the most obsequious 
 attention, assigning him, as an especial attendant, a 
 favorite negro servant, who had long been in their employ. 
 The southerner, who was a slaveholder, had a great dis- 
 like to free negroes, and notwithstanding the gentle- 
 manly bearing of his attendant, he treated him with the 
 
342 LAWTEE AND CLIENT. 
 
 utmost insolence, contempt and abuse, which the negro 
 bore with becoming patience for a long time. But at 
 length, the irritating manner of his temporary master 
 began to exhaust his patience, and finally upon one oc- 
 casion, when Brainsteed had been more than usually 
 abusive, the negro turned on him with great vehemence, 
 exclaiming, " 0, you go to hell !" ''What did you say, 
 you black rascal ?" roared B. "I told you to go to hell, 
 and you may," said the darkey, as he rushed from the 
 room. 
 
 This was too much for this proud scion of southern 
 aristocracy to bear. Hastening to the office, he made a 
 bitter complaint to the proprietor, and was coolly told 
 that he did not blame the negro. This greatly enhanced 
 his rage, and rushing into the street, he inquired of a 
 citizen whom he met for the best lawyer in the city of 
 Boston. He was directed to Rufus Choate. Hastening 
 to the office of the great lawyer, whom ■ he found at his 
 table busily engaged over a brief: " Is Mr. Choate in ?" 
 asked the southerner. 
 
 " That's my name, sir," said Mr. Choate, as he gave 
 the man one of his keen, searching glances, which put 
 him in possession — as by intuition — of the kind of man 
 who stood before him. 
 
 "Well, Mr. Choate," said Brainsteed, "I desire to 
 consult you, sir, on a very important case." 
 
 "Go on, sir ; go on," said Mr. Choate. 
 
 "The case is this, sir : My name is Brainsteed, sir, 
 of Richmond, Virginia. It is proper that I should say, 
 sir, that I am a — a — -a — " 
 
 "A representative of southern chivalry," said Mr. 
 Choate. 
 
EUF0S CHOATE AT THE BAR. 343 
 
 " Well — y-esj sir, yon may perhaps say so, with pro- 
 priety. I am visiting Boston ou business, and am a guest 
 of the Revere House. As none of my servants are with 
 me, the proprietors, knowing something who I am, as- 
 signed me what they call a first-class, free nigger servant, 
 but in reality an impudent, sauoy wlielp, that I would 
 have, if I owued him, severely lashed every day till I 
 broke him of his viciousness. This morning, as I was 
 reprimanding him for his impudence, he turned on me 
 with still more impudence, and what do you think he 
 said, sir ? Why, sir, he told me 'to go to hell.' Now 
 this is unendurable. There is no nigger in the south 
 who would dare say this to James Brainsteed, and what 
 is worse, the proprietor of the hotel upholds this nigger 
 in his insolence. K"ow I won't bear this ; I'll teach them 
 a lesson ; I'll have legal redress, and I want your opinion, 
 Mr. Ohoate, as to what I shall do about it." 
 
 Choate gave his client another of those peculiar looks, 
 which distinguished him when moved by some mental 
 action. 
 
 " Mr. Brainsteed," he said, " I think I understand you 
 and your case. It is, of course, important for you to 
 know what you shall do. There is no law, Mr. Brain- 
 steed, in the commonwealth of Massachusetts that will 
 allow that negro to send you to hell, and I advise you 
 by all means not to go." 
 
 Then taking np his pen, he continued writing as if 
 nothing had happened. Brainsteed stood for a few mo- 
 ments somewhat embarrassed, tapping his boot with a 
 small cane, quite under the impression that Choate had 
 handed him up, but unable by the coolness of the lawyer's 
 manner to make any rej^ly. At length, as he was about 
 leaving the room, he asked : 
 
344 LAWYEE AND CLIENT. 
 
 "What is your fee, sir, for this advice ?" 
 
 "Ten dollars, sir. The case is very important, in- 
 deed," said Choate, without looking np from his brief. 
 
 The man laid two fives on the table, remarking : 
 
 "I don't know which is the worst place to get into — 
 hell or a Boston lawyer's oifice." 
 
 " You don't think the charge exorbitant, do you ? It 
 cannot be possible." 
 
 "It is exorbitant, sir. It's robbery, sir." 
 
 "You are quite mistaken, Mr. — Mr. — Mr. Brainsteed. 
 The charge is very light for one so important. If you 
 act upon my advice it will save you from a terrible calam- 
 ity," said Choate, still continuing his writing. 
 
 "What misfortune — what do you mean, sir ?" 
 
 Choate wrote on a few moments, and said : " From 
 your general appearance, if you had not been ably advised 
 in this case, you would have done as that negro told you 
 and gone to hell, where you would have found another 
 rich fool. Good morning, Mr. Brainsteed," and that 
 gentleman retired. 
 
 Mr. Choate disliked personal communication with 
 clients in criminal cases. It is said that with Tirrell — 
 for whom, as we have seen, he made a defense of unsur- 
 passing power and brilliancy — he never exchanged a 
 word till the day of the trial ; and then, only a few brief 
 sentences as follows : Walking up to the railing of the 
 dock where the prisoner sat, he said to him : 
 
 "Well, sir, are you ready to make a strong push with 
 me for j'our life, to-day?" 
 
 "Yes, sir,'' was the reply, "but you are the- one to 
 make the push — my life depends upon you ; but I'll do 
 what I can for myself." 
 
 "Very well, sir," replied Mr. Choate, "we will make 
 
EUFUS CHOATE AT THE BAE. 345 
 
 it." Turning away, he took his seat, and never spoke 
 to him again. 
 
 Ogden Hoffman and James T. Brady, however, 
 repeatedly sought interviews with the great criminals 
 they defended ; and in this, they followed the example of 
 Curran, who used to say : "I always talk with a criminal 
 I am to defend until I learn every secret of his hearb 
 and make myself familiar with his nature." 
 
 Mr. Choate's assistants always prepared his cases for 
 trial for him, and through them he learned everything 
 connected with the lives of his clients in criminal cases. 
 
 There was much in the personal appearance of Rufus 
 Choate that attracted attention. The following is the 
 best description, perhaps, that can be found of him : 
 
 " He was a little more than sis feet in height ; his 
 frame robust, strong and erect ; his walk rapid, yet easy 
 and graceful, and with a force, too, that seemed to bear 
 onward not only himself, but all about him ; his head 
 was covered with a profusion of black, curling hair, to 
 the last with but a slight sprinkle of gray ; his eye was 
 dark, large, and, when quiet, an introverted meditative, 
 dreamy expression ; when aroused or interested it gleamed 
 and was very powerful. 
 
 "A woman, famous as a fortune-teller, once came to 
 consult him. She had not proceeded far in her story 
 before she suddenly broke ofE with the exclamation : 
 ' Take them eyes off me, Mr. Choate ; take them piercing 
 — I was going to say, witch eyes — off of me, or I can't 
 go on.' 
 
 "His smile was fascinating, and his whole manner 
 marked with easy dignity and grace."