Bi-centennial history of Albany. History of the county of Albany, N. Y., from 1609 to 1886. With portraits, biographies and illustrations, Part 49

Author: Howell, George Rogers, 1833-1899; Tenney, Jonathan, 1817-1888
Publication date: 1886
Publisher: New York, W. W. Munsell & Co.
Number of Pages: 1452

USA > New York > Albany County > Albany > Bi-centennial history of Albany. History of the county of Albany, N. Y., from 1609 to 1886. With portraits, biographies and illustrations > Part 49

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* * selecting, drawing, * summoning or impaneling grand or petit jurors."

The case was ably and learnedly conducted by the District Attorney, but it resulted in an order ot the Court declaring the indictment void and of no effect, on the grounds of unconstitutionality. From this order an appeal was taken by the Dis- trict Attorney to the Supreme Court. A motion made by Mr. Meegan for a dismissal of this appeal was successful. His arguments in the different and difficult phases of this case were, by common con- sent, pronounced masterly efforts. A report of the case will be found in 66 Howard's Pr. Reps., 371, and 65 Howard's Pr. Reps., 365; will be found in People vs. Duff-Judge Westbrook's opinion.

In the case of The People vs. Petrea, indicted for grand larceny in September, 1881, by a grand jury organized under the amendment of the Code to which we referred in the foregoing case, Mr. Meegan, in conducting the case for the accused, interposed the same defense of unconstitutionality that he did in the case of Dempsey et al., and with the same results. The Laws of 1881 amending the Code were declared unconstitutional (65 Howard's Pr .. 59). The question was again raised in the case of The People vs. Hooghtiud, 67 Howard's Pr. Reps., 256. Judge Andrews, as will be seen by consult- ing page 259, expresses the strongest disapproba- tion of the Court at longer tolerating a system so directly in conflict with the provisions of the Con- stitution as that provided by the amendment of the Code to which we have referred.

In 1872 Mr. Meegan had charge of the defense in the celebrated case of The People ex rel. Edmund L. Judson agst. George H. Thacher, involving the title to the office of Mayor of the City of Albany. The trial of the case resulted in a verdict for the defendant. An appeal to the Court of Appeals re- sulted in an order for a new trial, but, pending the new trial, Mr. Thacher resigned, having served twenty months of his two years.

In 1882 Mr. Meegan was retained for the de- fense in another contest over the office of Mayor of the City of Albany, that of The People ex rel. John Swinburne vs. Michael Nolan. A long litigation followed, but, after holding the office fifteen months, Nolan resigned, and Swinburne served the remainder of the two years' term. These cases are so fresh in the recollection of the public that a minute description of them is unnecessary.

Perhaps no case which has occurred in Albany for years has created so much interest as that of The People vs. Frank R. Sherwin. It arose out of the defalcation of Deputy State Treasurer Phelps.

Henry Smith)

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THE BENCH AND BAR.

When his case was brought to trial, Sherwin was subpoenaed as a witness, and refused to attend, and for such refusal was indicted. Under the provis- ions of the Statute rendering it indictable for every person subpoenaed in a case like that of Phelps guilty of willful disobedience of the subpoena shall be guilty of a criminal offense and a misde- meanor.

One of the points raised by the defense was that it was not shown that Sherwin willfully and inten- tionally disobeyed the subpoena, that the burden of dispelling every possible reason which might be regarded by the court as good or otherwise for the non-attendance of the witness rested with the pros- ecution. Mr. Meegan took no part in the trial, which resulted in the conviction of Sherwin, and to a sentence of one year in the penitentiary and a fine of two hundred and fifty dollars. This was on December 28, 1883. On January 30, 1884, Mr. Meegan was retained. Wm. M. Evarts, Wm. A. Beech, Gen. Tremain and J. Thomas Spriggs had been in the case at different stages. At the urgent solicitation of the defendant, Mr. Meegan accepted a retainer for the purpose of avoiding his sentence upon procuring bail, etc.

Then began a succession of motions and appli- cations in various forms, numberless arguments be- fore the judges of the Supreme Court; at length the indomitable counsel procured stays of the sentence and had Sherwin admitted to bail in the sum of $3,000.

Mr. Meegan had to impeach the indictments; but as there were two pleas of guilty, he could ob- tain no relief for his client unless he could show cause in the record. He spent many months in diligent and unremitting labor on the case, and at last succeeded in releasing his client on bail until the final decision of the appeal, which is pend- ing.

Few lawyers have been more successful in criti- cising and analyzing indictments than Mr. Meegan, and when his objections were overruled in the Oyer and Terminer, they have been sustained in the Ap- pellate Courts.

In the celebrated case of the People vs. Devine, indicted for mayhem, the District Attorney had followed the form in Whorton, but omitted the words "on purpose." Although the in- dictment contained every other element of the of- fenses, it was quashed.

In another very important case, that of the People vs. Gassbeck, indicted for burglary, Mr. Meegan, for the defendant, succeeded in quashing the indictment on an ingenious point after an elab- orate and well-sustained argument.

The cases which Mr. Meegan has conducted are too numerous to be even mentioned by their titles for want of space. An examination of his briefs proves them to be copious and learned legal pro- ductions and their author an adroit and skillful legal logician, capable of the most patient and per- severing energy and research, which no difficulties can baffle, no embarrassments perplex, no amount of professional labor fatigue or discourage. As a forensic speaker, he is always calm; methodical in

the arrangement of his matter; terse, vigorous and pointed in his phraseology, and accurate in the choice of his words. It would be strange indeed if a person of Mr. Meegan's professional and social standing and ardent mind should keep aloof from politics. He is a Democrat, thoroughly imbued with the belief that the principles of Democracy should prevail. In the advocacy of those prin- ciples, he has brought to bear that intellectual strength, that singular versatility and imperturb- able energy which characterize his professional career.

Before reaching his majority, he exhibited the qualities of an accomplished politician.

When he was twenty-one years of age, he as- sumed the leadership of one of the wings of the Democratic party in Albany, and in the vicissi- tudes of the political contest that followed, he took the place of one of the most skilled and distin- guished politicians of the State, Peter Cagger, in which he has sustained himself with consummate ability and skill.

Without attempting any description of his po- litical career, we may say with truth that he has exhibited on several occasions the fact that he is a power in politics, by no means local, but felt throughout the State. Yet he is still a young man. His success as a politician has not been at the ex- pense of his profession, to which he subordinates politics and everything that can encumber the growth of his professional reputation. But his success and distinction in politics may fairly be considered as the stepping stone to the highest po- litical honors whenever he shall enter the political arena to contend for them.

Having thus described Mr. Meegan as he stands before the public, as a lawyer and politician, it remains for us to say a few words in regard to his position in private life.

On the fifth of June, 1878, he was united by marriage to Miss Kate E. Welch, of Albany.

This union was a happy one, and the domestic relations of Mr. Meegan may be said to have been truly enviable. But on the roth of January, 1884, after the enjoyment of less than six years of wed- ded happiness, he suffered 'an irreparable loss in the death of his wife.

As a citizen Mr. Meegan occupies a high position, possessing those attractive endowments which render him a pleasing and instructive companion. A large and admirably selected library affords him ample intellectual aliment and the gratification of a cultured literary taste.

HENRY SMITH.

HENRY SMITH was born in Cobleskill, Schoharie County, N. Y., March 14, 1829. His father, Thomas Smith, was for a long time at the head of the Schoharie Bar, and afterward he was a distin- guished member of the Albany Bar.

His son, Henry, like many other distinguished legists and advocates, laid the foundation of his education in the common or district schools, which, humble as they were, have attached to them

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HISTORY OF THE COUNTY OF ALBANY.

memories and associations that touch the heart and bring up sympathies in the mind of many an occupant of places of distinction and honor. In a word, they were and are the corner-stone of our sys- tem of education.

One of the principal books used in the common schools at that time was Lindley Murray's English Reader, still remembered for the purity, elegance and taste of its diction, the versatility, elevation and excellence of its matter. It was, perhaps, the study of this work that gave Smith the strong, per- spicuous, affluent style that characterized his oral and written productions.

What he could not learn in the district school he studied with success under the tuition of his father. At length he entered the academy at Esperance, N. Y., at the head of which was a scholarly, though somewhat eccentric, Scotch gentleman of the name of Wm. McLaren. He was particularly gifted in the art of imparting instruction by a thorough, practical discipline. Young Smith, who was a favorite with him, acquired those scholarly habits, devotion to study, and the knowledge how to study, which was of such advantage to him in life. He was untiring in his devotion to books, and his tenacious memo- ry took the impression of what he read, like char- acters made in softened steel, hardening when the page was closed, so that he never lost the thought or theme of an author.

Young Smith first conceived the idea of becom- ing a merchant ; accordingly, in 1844, he went to Detroit, Mich., where he engaged as a clerk in a hardware store ; but whatever hours of leisure he had were devoted to his books, and he was em- phatically a student and a man of business. He soon became convinced that he did not possess the requisite qualities for a successful merchant, and reflection brought to him the consciousness that he was better qualified to enter the profession of which his father was a distinguished member.

After remaining at Detroit a year he returned home and entered his father's office as a student at law. Few students read law as closely, as systematically and as successfully as did young Smith ; he loved the quaint style, the meta- physical subtleties of the early black-letter law- writers, and the pages of Bracton, Briton, Fleta, Glanville and Coke-Littleton became familiar to him.

Eighteen months passed away in this entire de- votion to study, and then, although but eighteen years of age, he applied for admission to the Scho- harie Court of Common Pleas. On the 10th of June, 1847, he passed a critical and successful ex- amination and was admitted to practice as an at torney of the court. Immediately after attaining his majority he was admitted to the Supreme Court, and entered zealously into the practice of his pro- fession at Cobleskill. In the autumn of 1854 Mr. Smith received the nomination for county judge of Schoharie County from the Whig party, to which he had given his allegiance. His party, however, was largely in the minority, and he was of course de- feated, but the large vote he received was a flatter- ing testimonial of his popularity.

The talents, industry and energy of the young lawyer brought an abundant reward, and he soon attained a high rank at the Schoharie Bar. His practice soon extended into adjoining counties, and his clientage became so large and important that he decided upon a larger sphere of action, and in February, 1857, he removed to Albany.

By this decision he was conscious that he was entering a legal arena famous in the annals of the State-a bar composed of strong, expert, elegant and accomplished lawyers. But he had already developed abilities upon which he felt he could rely for success in the brilliant field of labor he had selected.

Physically, he was of stalwart mold, his mental structure was strong and vigorous, and his energy and determination were as boundless as his ambi- tion. If he did not leap, Pallas-like, into full pro- fessional honors and success, he reached them by safe and sure approaches. To facilitate him in this, he possessed what may be called a legal mind and method ; an oratory at once bold, ingenious and persuasive ; the suavity of his manner, the equable fairness and honor in which he conducted his practice won for him the friendship and esteem of his brethren of the Bar. That success should be the result of these endowments must be considered almost a matter of course. Professional rivalry, envy, and the hate of defeated suitors and political antagonists might, and did, doubtless, as they ever do, magnify those errors and faults which Mr. Smith shared, in common with mankind.

He brought to the Bar a drastic, physical strength that enabled him to endure the most ardent and exhausting labors. The examination of his cases was close - and critical. He firmly rested upon the result of his conclusions concerning them, and never willingly relinquished their advocacy until the final and authoritative judgments of the court were pronounced upon them. He also brought to them a careful, independent, keen dis- crimination, a quick and ready use of his learning. Wit and humor, ridicule and invective, he employed as circumstances required.

He could on the most exciting occasion be calm and self-possessed, but it was the calmness of stern resolve, persistent and tenacious in its triumphs over passion and irritability. His first law partner after coming to Albany was, we believe, Mr. Hugh W. McClellan. He was for a time a partner with Edward Newcomb, Esq. In 1864 the famous firm of Smith, Bancroft & Moak was formed, which ex- isted until the time of Mr. Bancroft's death, early in 1880. After the death of Mr. Bancroft, the firm was known as Smith, Moak & Buchanan, Mr. B. having been previously made a member of the firm. Like most lawyers, he had ambition for political success, and he early gave his allegiance to the old historic Whig party, so grand, we had almost said "so sublime in the lustre of the great names that sustained it." The allegiance he gave it came warm from the depths of his heart. His first great political sorrow came to him while yet a youth with the defeat of his ideal of all that was illustri- ous in American statesmanship, Henry Clay.

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In 1856, after the dismemberment of the Whig party by its divisions on the question of slavery, the Republican party came into existence, and Mr. Smith at once joined his political fortunes to it, giving it his influence and laboring diligently for its success, and he soon became one of its recog- nized leaders in the City and County of Albany.

Although in that exciting period of our history he entered ardently into the political arena, he did not forget that success in his profession was the paramount object of his life. Perhaps we may say that he only sought politics as a relaxation from his professional cares and labors, and thus he never permitted the lawyer to be lost in the poli- tician.

In 1862 Mr. Smith received the nomination for Congress in the Fourteenth District. This, how- ever, was merely complimentary, as the Democrat- ic majority in the district was overwhelming. In 1865, and for several years previous, the Democrats had controlled the office of District Attorney in the County of Albany. In the fall of that year Mr. Smith was nominated for District Attorney by the Republicans, and after an unusually hot contest he was elected by a small majority. As has well been said, "The duties of this responsible office were discharged by Mr. Smith to the entire satisfaction of the community, and with much success. His administration was signalized by a notable increase in the number of convictions for grave crimes. Through his efforts a severe blow was dealt to the criminal classes, in high as well as low places. On the 31st of December, 1868, he was succeeded by that distinguished lawyer, Rufus W. Peckham, Jr. In the autumn of 1866, while discharging the du- ties of District Attorney, he was nominated by the Republicans of Albany for Member of Assembly. Though the Democratic majority in the county was very large, and the prospect of his election quite dubious, yet he was elected by the very flat- tering majority of 564 votes." This circumstance sufficiently attests the popularity of Mr. Smith. He took his seat in the Legislature January 1, 1867. The Republicans had a large majority in the House, and Edmund L. Pitts, of Orleans County, was elected Speaker. In recognition of Mr. Smith's abilities, he was placed second on the two most important standing committees of the House-the Ways and Means and the Judiciary Committees. To the duties of these committees Mr. Smith brought talents and acquirements that rendered him one of the most useful and successful mem- bers ; but they also brought a vast amount of labor, research and patience. An examination of the various committee reports of which he was the au- thor is the best evidence, perhaps, of the manner in which he discharged his legislative duties, and it cannot be denied that he stood foremost among the able orators who occupied seats in this Legislature.

In 1868 he was nominated for a member of the constitutional convention from Albany, but was defeated.

Such was the increase of his professional duties, that he was obliged to devote himself with unre- mitting zeal to his clients, and it is said that he

had decided in his own mind to abandon politics forever. But in the fall of 1871 he was persuaded to accept the nomination for member of Assembly from the Second Assembly District of Albany, and was elected by a highly respectable majority. The legislative session opened January 2, 1872. Mr. Smith was with great unanimity brought for- ward as a candidate for Speaker. In the Republican caucus, held January 8, he was nominated for this important office and the next day was elected.

Mr. Smith's address on taking the Speaker's chair was re- garded as a model inaugural. It was liberal and statesman- like; with no pretensions to eloquence, it was the embodiment of eloquence ; though condensed and brief, it was ample and explicit, and withal, it had in it much of that magical viva- city which enlivened all his public addresses and entered into his conversation.

"Every right-minded legislator," he said, "must be deeply and solemnly impressed with the awful responsibility which rests upon him here ; and while it requires the exer- cise of the very best ability, it also requires that it should be exercised with purity, and with a sole desire to the public good ; party considerations, political considerations, pri- vate considerations, every consideration must be made subservient to the common good of all, and I feel assured that we, as a body, realize these things, and that no man here will permit, in a direct or indirect manner, his judg- ment to be affected, or himself to be swerved in the slightest degree. To make laws is the highest and most responsible duty ever undertaken by man. We are called here as law- makers ; let us see to it that we make such laws as shall tend to the protection and welfare of the people of this State."

In appointing standing committees he exhibited his high appreciation of worth and ability by appointing several of the most pronounced Demo- crats. As an instance, he appointed Mr. Jacobs, of Kings, on the Committee of Ways and Means, and he gave the Hon. David B. Hill, of Chemung, a place on the Judiciary Committee. Other leading Democrats were liberally remembered in making up committees.

We cannot follow Mr. Smith's career as Speaker through this remarkably important legislative ses- sion. Suffice it to say, it was characterized by a high degree of ability, and in all its details he ex- hibited the qualities of an accomplished parlia- mentarian. The session closed May 14, 1872, and with it the public political career of Mr. Smith. Having thus briefly described Mr. Smith as a legislator, we shall now trace a little farther his career at the bar in his maturer years, as we have already described him as a young lawyer. In the contests of the bar he was frequently defeated ; but he never lost a cause by inattention or neglect. Charles O'Conor once remarked that "the lawyer who won one-half the causes committed to him must be regarded as eminently successful." Judg- ing Mr. Smith by this standard, we must say that he has been, and is, eminently successful. He never lost a cause by inattention, neglect, or from the want of a full understanding of the law and facts of the case. One strong characteristic was his lucid, concise and suggestive manner of stating facts to the jury. This, in opening a case, is es- sentially effective. According to Lord Erskine's view, a cause skillfully opened to a jury is already half tried. Perhaps the greatest strength of Mr. Smith at nisi prius was his manner of examining

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and cross-examining witnesses, especially the man- ner in which he conducted the latter. Whatever power and effect there. may be in a skillful and eloquent address to the jury-and there is much- still it must yield to the effect of an ingenious cross-examination. It is one of the most difficult and important duties which an advocate can per- form ; it requires a knowledge of human nature, quick sensibilities in discerning the characteristics of a witness, and a subtle discrimination in detecting his peculiarities. When not founded on materials of contradiction, to obtain some information which the witness would be willing to give, it proceeds on the assumption that the party interrogated has sworn an untruth, which he may be compelled or induced to vary. But it is often the means by which good and trustworthy evidence is mischiev- ously weakened or destroyed. In this branch of practice Mr. Smith was eminently effective, pos- sessing the power of reading the thoughts of a witness, of anticipating his answers, of ascertaining his peculiarities, his subterfuges, and finally of drawing forth from unwilling witnesses facts which they struggled hard to conceal. His cross exam- ination, like James T. Brady's, had the talismanic power of bringing truth out of falsehood, and of often showing dishonest suitors and witnesses the force of the Bible adage, "Be ye sure that your sins will find you out."

Mr. Smith once remarked that he seldom, if ever, failed to detect perjury in a witness, by his or her manner, while testifying. "To the keen, watchful and practical observer," he said, "there is always something in the glance of the eye, some- thing in the manner and the speaking of false witnesses, that betrays them."

We have already alluded to his remarkable memory. He forgot nothing. Every fact, every rule, every principle, once attained, remained with him forever. This was another invaluable faculty to him as a lawyer.

In conducting a purely legal argument, or in conducting an argument founded on facts alone, he proved himself a strong legal logician, with flexible powers of illustration and condensation, demonstrating, in many respects, Cicero's views, " the eloquent lawyer who speaks with sense and candor, in the forum and in civil causes, in such a manner as to prove, to delight and to persuade." Mr. Smith's knowledge of the law was founded on a close and critical study of the books. This is evidenced by his well-considered, well-reasoned and learned legal arguments at the bar, which may be regarded as able contributions to the learning of the profession.

Among the many important civil cases conducted by Mr. Smith was that of the Walton Dwight's Executors against the Germania Life Insurance Company, tried at the Chenango Circuit in the fall of 1883. The details of this great insurance case are so familiar to the public that it needs no de- scription here. Suffice it to say, that it is by far the most important and interesting case growing out of policies of insurance ever tried in the United States. Mr. Smith appeared for the plaintiff ; he

opened the case to the jury on the 12th of No- vember, 1883, and began his summing up to them on the the 10th of December following. A close inspection of these efforts of Mr. Smith's, as pub- lished, is indubitable evidence, not only of schol- arly and legal lore, but of the highest merits of legal oratory. The part he took in this trial was a task for which his mind was peculiarly fitted. His keen sagacity and thorough knowledge of the human heart, and his peculiar force of expression and power of analysis, had the widest scope for their exercise, and he used them with a power of reasoning which the final result of the great case fully demonstrated.

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Bi-centennial history of Albany. History of the county of Albany, N. Y., from 1609 to 1886. With portraits, biographies and illustrations, Part 49

Author: Howell, George Rogers, 1833-1899; Tenney, Jonathan, 1817-1888 Publication date: 1886 Publisher: New York, W. W. Munsell & Co. Number of Pages: 1452

Author: Howell, George Rogers, 1833-1899; Tenney, Jonathan, 1817-1888
Publication date: 1886
Publisher: New York, W. W. Munsell & Co.
Number of Pages: 1452