USA > New York > Ontario County > A history of Ontario County, New York and its people, Volume I > Part 18
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The indictment for kidnapping was quashed on the day follow- ing the indictment for assault and battery, and the parties, being immediately tried on the latter indictment and found guilty, were fined $100 each. There was much about this trial that was sensa- tional, and the court room was crowded during the five days that it lasted. Jacob P. Faurot was District Attorney. Mr. Husbands, of Rochester, and Henry O. Chesebro, of Canandaigua, appeared for the defendants.
Bennett was still persistent, and commenced a civil action against the same defendants for loss of services of his wife, alleging the kidnapping, etc., in aggravation. This was tried in February, 1854, and resulted in a verdict in Bennett's favor for $1,250. Joshua A. Spencer, of Utica, and S. V. R. Mallory, of Canandaigua, two very able lawyers, were for the plaintiff. Worden and Chesebro were for the defendants. This trial lasted two days, and the public interest in it kept up.
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A new trial was granted, and the case was retried, I think, in 1855, S. V. R. Mallory for the plaintiff, and Smith & Lapham for the defendants, and resulted in a verdict for the defendants. This ended the litigation between the parties. The daughter was a witness on this trial, and appeared ladylike, accomplished, and self- composed. She afterwards secured a divorce and was married to a gentleman in every way suitable to her character and station in life.
Among the many celebrated causes which have been tried in Ontario county on the civil calendar, the one that consumed the largest period of time in the actual trial, and created the greatest interest, local and public, was the case of Ross Wynans vs. the New York and Erie Railway Co., impleaded with some other railroad corporations of the various parts of the Northern States.
Ross Wynans, the plaintiff, was a millionaire inventor and manufacturer of the city of Baltimore, Maryland. He had, before this, built the great railroad in Russia, extending from St. Peters- burg to the Crimea, under a contract by which he received a small per cent., as royalty, upon all freight transported over the road for a period of years. The unforeseen Crimean war required the trans- portation of immense supplies for the Russian army, and the royalty received under this contract and paid by the Russian government amounted to a very large sum. He had secured valuable patents relating to the construction of railways cars, the principal one being what was known as the swinging bolster. Many of the large rail- road corporations had appropriated his inventions and were using them in defiance of Wynans's claims, and, as he contended, in violation of his rights.
His cause of action was founded upon the alleged infringement of his patents. The action was brought in the United States Circuit court for the Northern District of New York. It came on for trial at the June term, in 1856, at Canandaigua, Hon. N. K. Ball, of Buffalo, District Judge, presiding. The trial occupied six or seven weeks, and was conducted with singular pertinacity, as millions of dollars were involved. It brought into the court some of the most learned and eloquent lawyers of this country, as well as some who were famous for their knowledge of mechanics and their skill in the technicalities of the patent laws. Among them were Mr. Whiting, of Boston; Mr. Keller and Mr. Stoughton, of New York City ; Mr. Clarence Seward, of Auburn; and other eminent lawyers from
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Baltimore, Philadelphia, and St. Louis, making an array of legal talent such as was never seen in our old court house, before or since. Scientific men from all parts of the country were called as expert witnesses. Among them was Professor Mapes, of Princeton. Such was the severe cross-examination of this distinguished man by Mr. Whiting that he actually swooned in the witness box.
The case did not reach the jury, as it was determined by the Court against the plaintiff on a question of law, but the long trial gave an opportunity for some of the lawyers to enjoy the pleasures of country life. Especially Mr. Stoughton, who brought here his family and his horses, carriage, coachman, and took advantage of the beautiful drives about Canan- daigua in his stylish turnout.
Soon after the Fugitive Slave law was passed, a slave. by the name of Jerry escaped and got as far north as Syracuse on his way to Canada. He was caught in Syracuse by Government officers, and an effort was made to return him to slavery, as provided by this law. This was too much for the Free Soil men of Syracuse. So, with the determination of the men of Boston who threw the tea over- board, they rescued Jerry and scattered the men who had start- ed with him for Dixie.
DANIEL D. BARNARD.
Daniel Dewey Barnard, "a member of the Ontario county bar as early as 1825," was born in Berkshire county, Mass., in 1797; graduated from Williams College in 1818; was admitted to the bar in 1821; in 1826 became District Attorney of Monroe county, then re- cently set off from Ontario county, and later served in Congress and as U. S. Minister to Prussia. He died at Albany, April 24, 1861.
The trial of the rescuers was attempted here at our court house, in the United States Circuit court. Here was the jury. Here was the grave and honorable United States Judge, with all the glamour and pomp formerly in evidence in that court. Here, too, was Ger- rit Smith and John P. Hale, of New Hampshire. A stand was im- provised where Dr. Beahan's hospital now is. A meeting was called to be addressed by Gerrit Smith at 1 p. m., on the Fugitive Slave
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law. All the jurors, in some mysterious way, were notified to be present, and they were there.
Gerrit Smith, a man of large wealth and magnificent presence, a world-renowned orator, held these jurors in breathless suspense, while with fervid words and withering scorn he denounced that abominable disgrace known as the Fugitive Slave law, and out in the middle of the highway stood Senator John P. Hale, with burly form, he who at one time was the only anti-slavery man in Con- gress, shaking with laughter every time Smith scored a point against this law.
Smith and Hale were here for business. Their act was one of the boldest in the annals of judicial history. It may have been unseemly and unwise. But they were ready for prison and for death if necessary. It resulted in the adjournment of the court and the failure of the Government ever to try the Jerry rescuers.
The first criminal case tried in the present court house was that of the People vs. Napolean B. Van Tuyl, in the year 1859. Van Tuyl was indicted for kidnapping two boys, Prue and Hight, free negroes residing in Geneva, and selling them into slavery in Kentucky. The late Calvin Walker, of Geneva, was appointed by Governor John A. King, commissioner to act in behalf of the State to rescue the boys when found.
He found them in a slave pen in Kentucky. Hight, in his testi- inony on the trial, said: "I was feelin' very bad, shut up in dat pen one mornin', and I was peeking tho' de cracks of de logs and sot my eyes on Massa Wahka comin' tow'ds de pen, and," with a grin showing all his white ivories, "den I feel bettah."
Governor King granted a requisition on the Governor of Ken- tucky for Van Tuyl, which was executed by Henry C. Swift, then Sheriff of Ontario county. When he reached Kentucky, he found Van Tuyl had been arrested there for false pretenses, in represent- ing that the boys were slaves, and the authorities refused to give him up till after his trial there on that charge, which occurred a few days after the arrival of our Sheriff. The Judge before whom he was tried was an eccentric character. On the trial he called Sheriff Swift to the bench and invited him to sit by him, saying to him confidentially, "The punishment for false pretenses here is very light. I will try to enlighten the jury in my charge so that they will acquit the prisoner, and then you can take him back to New York with you, where he can be punished as he deserves." The
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prisoner was tried, and, under the Judge's charge, was acquitted, so that Sheriff Swift returned to this county with Van Tuyl as his prisoner.
This kidnapping was the first crime he had ever been known to commit. He was a young man of about twenty-five years, an only child, and his conduct had been exemplary in every way. His parents were highly respected, as well as wealthy. He had spent part of the money received on the sale of the boys at Niagara Falls, where he was taken for Edwin Booth-the resemblance being very striking.
Mr. Justice Henry Welles, of the Supreme court, presided at the trial. Hon. William H. Smith, the District Attorney, assisted by Hon. Rufus W. Peckham, father of Rufus W. Peckham, recently one of the Justices of the United States Supreme court, appeared for the People, and Hon. Elbridge G. Lapham, late United States Senator, defended the prisoner. The jury disagreed, standing ten for conviction and two against.
Among the witnesses was JABEZ H. METCALF. Judge Graves, of Kentucky, who Jabez Holden Metcalf was born in the town of Naples, Ontario county, in 1813; studied law with Willson & Lester in Can- andaigua and was admitted to the bar in 1843; was associated in the practice of his profession with Elbridge G. Lapham and later with Henry M. Field. Died in Canandaigua, April 19, 1883. purchased Prue of the prisoner. Judge Graves was the son of the member of Congress who fought a duel with Scylla. On the next trial, Judge Graves declined to come as a witness. The fiancee of Van Tuyl had begged him not to come, and her appeal proved successful. Dr. George Cook, then superintendent of Brigham Hall Canandaigua, was called as an expert witness in favor of Van Tuyl, to prove insanity, but the doctor testified that he was sane.
On this trial, Van Tuyl was convicted and he was sentenced to two years in the State prison at Auburn. He showed no signs of insanity during the two years he spent in prison. He died soon
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after his discharge. Prue and Hight afterwards enlisted in the war of the Rebellion, and both were killed in battle.
One of the distinguished, but quaint, members of the Ontario bar was Jabez H. Metcalf, Esq., father of Hon. J. Henry Metcalf, late County Judge of this county. Mr. Metcalf's great good sense won for him the reputation of being a wise and safe counselor. He despised what was mean, low, or dishonest. His humorous and pointed way of stating facts will long be remembered by those who knew him. He appeared for the appellant in the County court one time, before Hon. William H. Smith, who had just reached the county "wool-sack." The case was an appeal from a justice's judg- ment, rendered by one of the most worthy and able justices of the peace of the county. William H. Adams, Esq., later a Justice of the Supreme court, appeared for the respondent.
Mr. Metcalf arose and said: (The real names I omit for good reasons ) "If the Court please,-This case arises on an appeal from a judgment in a justice's court held by Squire Jones down in Phelps. The plaintiff is James K. Polk Watkins, a colored gentleman with a foot sixteen inches long, and heels to correspond. Richard R. Wright, my client, was defendant. He got beat. Tim Turner, the learned blacksmith, tried it for Polk. He don't know anything. And Daniel D. Taylor tried it for my client. He don't know as much as the learned blacksmith. 'Squire Jones, the stupid critter, charged the jury, and the jury was stupider than the justice, for there was six of them to one of him." Mr. Metcalf then proceeded logically to argue the legal points in the case.
Mr. Metcalf had a case in the Supreme court in which an amusing incident occurred, upon the trial held before Hon. E. Darwin Smith, Justice, in the Ontario county court house. It was the case of George Brown vs. one James Parmely. A motion was made to postpone the trial until the next term of court on the part of the counsel for Parmely, on the ground that he had moved to the State of Louisiana, and was unable to be in court until the next term. Mr. Metcalf was the attorney for Brown, who was a poor man residing a few miles from Parmely's residence, in the town of South Bristol, before he moved to Louisiana. Parmely was a man over six feet in height and had given his note to Brown for borrowed money, and, as he had failed to pay it, the suit was brought. Mr. Metcalf said: "If the Court please,-I don't know whether Parmely has gone to Louisiana or not, but if he has, he is
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a greater scourge to Louisiana than slavery ever was! My client has been very lenient with him. He has told me his story about it. He was so poor he had to foot it every time he went to Parmely to get his pay. I took down the times he went, figured it up, and made it just 4,86912 miles." While he was continuing in this strain, making more comments on the character of Parmely, to his sur- prise the tall form of Parmely appeared at the door of the court room, and he walked in. Mr. Metcalf happened to see him as he entered. He turned to the Court, and without a break in his speech, but pointing at Parmely, said: "There comes the critter now, six feet, two inches of elongated rascality!"
The Court, as well as the bar and audience, was convulsed with laughter. The elongated rascal had to go to trial, and poor Brown got his money.
A trial that created considerable interest at the time was an action brought by the State of New York to recover of the Federal Government a large amount of money to reimburse the State for recruiting during the war. The proceeding was heard in the Circuit court of the United States, before Judge Wallace, of Syracuse.
The State was represented by Roscoe Conkling, then a Senator in Congress, while the United States was represented by the Hon. Richard Crowley. The case was tried and submitted by the respec- tive attorneys. Mr. Conkling, on behalf of the State, made one of those powerful and eloquent speeches for which he was distin- guished. His appearance in this case was criticised, at the time, from the fact that, being a United States Senator, he was taking sides against the Government ; and, besides, it was supposed and believed that both the Judge and District Attorney were practically put in their places through the instrumentality of Mr. Conkling, and would, on that account, be naturally influenced by him. At the time, the case created very great interest. both for the amount involved and the high character of the parties who were engaged in the litigation.
A criminal case that created wide-spread interest because of the peculiar character of the question involved, was the trial of Susan B. Anthony, for illegal voting.
Miss Anthony, now famous the civilized world over for her unequaled and masterful advocacy of the rights of woman, claimed the right to vote for Federal officers under the provisions of the amended Federal Constitution, and with a few other women
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suffragists, appeared to vote for members of Congress, in the voting district where she resided, in the city of Rochester. They had taken the preliminary step of being registered.
They went to the polls on election day and offered their ballots. Opposition and discussion at once arose in the board of inspectors. But who, on equal grounds, could vanquish Susan B. Anthony ? Her womanly presence and aggressive personality prevailed, and the votes of the brave women were received and deposited in the ballot box; the first and last that have been cast in this State by women at a general election.
JOHN CALLISTER.
John Callister was born in Albany, Febru- ary 22, 1828; moved to Canandaigua, where he was a student at the Academy and read law with Hon. Elbridge G. Lapham ; continued the practice of his profession until his death, which occurred in Canandaigua, August 23, 1888.
The antiquated male public sentiment was quickly aroused, and Miss Anthony and her co- conspirators against man's politi- cal supremacy, together with sev- eral inspectors of election, were promptly indicted. The trial came on, to be heard at the June term of the United States Circuit court, at Canandaigua. Mr. Justice Hunt, of Utica, presided. The prosecu- tion was conducted by Hon. Rich- ard Crowley, of Lockport, and Miss Anthony was defended by Hon. Henry R. Selden and Hon. John Van Voorhis, of Rochester.
The court house was crowded with interested spectators, both men and women. Little testi- mony was taken. Miss Anthony, with the courage of her convic- tions, through her eminent counsel, readily agreed upon the facts, thereby practically resolving the case into a question of law. Mr. Crowley moved the Court to instruct the jury to render a verdict of guilty.
Seldom, if ever, has a more brilliant argument been made than that of Judge Selden, in opposition to this anomalous assertion of judicial power. But it was of no avail. The decision was already
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in writing, and during the reply of the District Attorney, Judge Hunt was reviewing his opinion, which was to be decisive of Miss Anthony's right to vote. The discussion closed and the Court directed the jury to find a verdict of guilty.
On the opening of court the next morning, Judge Selden made a motion in arrest of judgment, and in support of it delivered a speech, which, for its arraignment of the exercise of judicial authority to deprive his client of an independent verdict of the jury, was most eloquent and masterful. His motion was overruled and Susan B. Anthony, in all the pride of her noble womanhood, was called upon to stand as a common felon and there receive the judg- ment of the Court.
The sentence was that she pay a fine of $100. She instantly declared, "I have not got a dollar! I have not got a dollar!" To which, Judge Hunt, with greatest suavity, replied, "You observe, Miss Anthony, that I did not add that you be confined in jail until the fine be paid." This change from the sentence ordinarily pro- nounced upon convicted criminals was quickly resented by the defendant, who, in a few caustic words, demanded that the sentence should be that usually pronounced in cases of like offending.
One of the very significant circumstances associated with this trial was that at its close the arm that supported the scales fell from the statue of Justice, which ornamented the dome of the court house.
About fifteen years ago, a gang of conspirators was organized in Rochester, ostensibly for the purpose of dealing in real estate. Their real object was to acquire the title to valuable real estate in the city and surrounding country, without consideration, and by fraud. The method was to enter into negotiations with persons desirous of selling and make a bargain to purchase, agreeing to pay in cash, the bargain to be consummated in their offices in Rochester, at a given time, when the money was to be paid. When the time arrived for perfecting the purchase, through one pretense and another, no money would be produced and new proposals would be made, which generally resulted in an exchange of real estate in consideration of transfers of mortgages or other property represented to be first-class security. These mortgages and securi- ties would in every instance turn out to be either entirely worthless. or were forged both in execution and acknowledgment, and usually by false personation. These frauds were carried on to an alarming extent.
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Finally two of the conspirators, Charles O. Peckens and Albert P. Wicks, attempted to work their fraudulent scheme on S. H. Stewart, a resident of Shortsville, in this county. They succeeded in defrauding Stewart, but, with the courage of one determined to bring the thieves to justice, he consulted Royal R. Scott, the Dis- trict Attorney, who then became interested in the prosecution of the offenses. The result was that Peckens and Wicks were indicted and tried for grand larceny. and both were convicted and duly sentenced to terms in the State prison. Thereafter other members of this gang of conspirators were indicted in Rochester, on account of their operations there, and were convicted and sentenced to terms of imprisonment.
Another recent case which created much interest was that of John F. Dorthy, an attorney of Rochester, who was indicted in Monroe county for several offenses, one of which was embezzle- ment. He had previously been disbarred from practice on account of misconduct as an attorney. The trial was held in Canandaigua through a change of venue.
The pioneers of Western New York were very much like those of other new countries -- good, bad, and indifferent. They came from different sections, with the characters, to a certain extent, of the environment of the places whence they came; hence, as they developed in the new habitat, there was a diversity and individu- ality quite unknown in an old settled community. There was more lawlessness, and as a result, the court records show more crimes in proportion to the population, than at present. Murders and other felonies were quite common. Character was more intensified along every line, so that while men of high moral character attained high positions, men of morals that would not now be tolerated were often successful competitors for such places. We are apt to pay homage to the great men of the past and to the good things they did, while in the dim distance we see not their vices and frailties which time has kindly covered with the mantle of forgetfulness.
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THE MEDICAL PROFESSION.
XX
THE MEDICAL PROFESSION.
Dr. Moses Atwater, the First Physician to Settle on the Phelps and Gorham Purchase-A Pioneer Physician Who Took Strong Ground Against Bleeding-A Physician's Diary-Dr. Edson Carr, Skilled in Medicine, Surgery and Dentistry, and an Excellent Musician as Well-The Later Physicians.
BY JOHN H. JEWETT, M. D.
It was nearly two years after the first settlers had come into the country acquired by Phelps and Gorham in their memorable purchase before serious illness had brought forcibly to their minds the necessity of providing against such calamity.
In the summer of 1790 Caleb Walker, brother of the financial agent of Mr. Phelps, fell grievously ill at Kanadarque (Canandaigua) of a bilious fever. The natural impulse was to send for the doctor, but, lo! that useful person in any community was not to be had, for in the period of healthful prosperity the medical man had been entirely overlooked. Fortunately in the neighboring village of Geneva there was a Dr. William Adams, a native of Pennsylvania, who responded to the urgent call and visited Mr. Walker. When the doctor arrived, he had no medicine with him and it is related by Mr. Conover that a chest which had been left by some traveller was broken open and medicine obtained therefrom. The narrative does not state whether they found the right kind of medicine, but presumably not, for Mr. Walker died on the 12th day of August, 1790.
This was the first death in the new settlement. The body was interred in the old cemetery, the inscription on the stone being as follows: "In memory of Caleb Walker, who died August 12th, 1790. Aet 38."
An interesting circumstance in connection with the funeral is that the physician in charge also officiated as clergyman and read
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the Episcopal service at the grave. It may be that thus early was laid the foundation of that curious custom which so long prevailed in Canandaigua that the attending physician should head the funeral procession and take with him the officiating clergyman. Not until 1880 was this custom abrogated by a resolution passed by the Canandaigua Village Medical Society, which we copy from the
minutes : "Resolved-That we, the medical profession in Canan- daigua, disapprove of the prevail- ing custom of leading funeral processions and henceforth are determined to discontinue this inconvenient and unnecessary. practice."
To Dr. Moses Atwater, how- ever, belongs the honor of being the pioneer physician in the new community, for, as stated before, Dr. Adams was called from a neighboring village for special emergencies.
Sometime in 1790, Judge Phelps wrote to Judge Gorham : "We have suffered much for want of a physician. Atwater has not yet arrived. We have now a gentleman from Pennsylvania to DR. MOSES ATWATER. Dr. Moses Atwater, the first physician to settle on the Phelps and Gorham Purchase, became a resident of Canandaigua in 1790, at the age of 25 years, moving here from Cheshire, Connecticut; was a trustee of Can- andaigua Academy, Associate Judge of the County Court, and held other important offices. Died in Canandaigua, 1847. attend the sick who seems to un- derstand his business. The two Wadsworths who came from Dur- ham have been very sick, but are now recovering. They are low spirited. They like the country, but their sickness has discouraged them."
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