Civil, political, professional and ecclesiastical history, and commercial and industrial record of the County of Kings and the City of Brooklyn, N. Y., Part 142

Author: Stiles, Henry Reed, 1832-1909.
Publication date: 1884
Publisher: New York : Munsell
Number of Pages: 1360

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vocate must, to some extent, be a mountebank, if not a juggler or a trickster." A more pungent criticism than Judge Neil- son applies to this remark is not found in the language of satire, and nowhere is there a moro enlarged and truthful considera- tion of the duties and responsibilities of an advocate, in so brief a space. Says Judge Neilson :

"Uncharitable things have been said of many great advocates; but, as an illustration, the worst thing ever said of Choate was, that he could play tho artful dodge in reading an affidavit. That was but a rude description of fine, forcible, effective reading; reading which gives significance and character to vital passages, discloses the latent sense and spirit, aids the apprehension, and receives a certain, and it may be a favorable, interpretation. Such a reader, natural, yet artistic, 'tells the great, greatly; the small, subordinately;' and thus wo have heard Maeready play the artful dodge; thus Fanny Kemble Butler; thius tho gentle Melancthon may have read; thus every pulpit orator, from Whit- field down.

With all his gifts and acquisitions, the advocate must boa high- toned, moral man, not a harlequin; a vital utterance, not a mere sham. Jurors are representative men, coming from the entire circle of the social zodiac, and aro practical, sensible, and often sagacious men, as fond of fair dealing in counsel as in suitors."

Speaking of the office of the author of thoso reminiscences, Neilson says: " In personal delineations of this nature the true author is sympathetic; his purpose fills his heart and brain, takes possession of all his faculties; he feels as one of old did, when he said: 'Woe is me if I preach not this gospel! "

There is much in this review that exhibits the most perfeet critical skill. It closes with delicate and finely shaded touches of sadness, suggested by some phases of Choate's life, revealing deep fountains of generous sympathy in the heart of the learned reviewer, He says :

" We have always had a fondness for Mr. Choate, the unique man of his day, so brilliant, yet so logieal. Thanks to the author, we now see him in new phases of life, and learn many things about him unknown before. But we close the book, and muse in sadness. Poor Choate! What severance and alienation from the sources of life, health, and elasticity ! He had no Ash- land, no Marshfield, no Sunnyside; no flocks or herds; no fields of golden grain; but the school, the closed study, the dusty street, the crowded forum; so half bis naturo was stifled in its growth, if not killed. How, through life, he turned blindly from the smiling mother earth, when, as only a true mother can, sho would havo comforted and soothed him! How he looked on coldly while his school-fellows enjoyed sports ordained for him! How, in later years, he read, and read when a gorgeous sunset or a waving forest would have fed his famished spirit ! How ho brooded about books, as he passed inspiring landscapes, and felt no thrill as they spoke to him ! How he treasured up and tried to love a piece of cold statuary, but had no interest in the perfeetion of form and motion man's friend in service -- though hie trots the air, and the earth sings as he touches it; though his neigh is like the bidding of a monarch, and his countenance en- forces homage."

An address delivered by Judge Neilson at the opening of " The Annual Exhibition of the Brooklyn Industrial Institute," in 1873 (published in pamphlet form), was described in the newpapers of the day as a remarkable prodnetion as to style, comprehensiveness and thought. We cite a few passages, feel- ing quite confident that they will find a responsive acceptance in tho minds of our readers, although the subject he discusses is a dry one, in which no inan but Judge Neilson could touch a chord of sympathy. Thus, in speaking of labor-saving machines, he says:

" The labor-saving machine characterizes the nineteenth cen- tnry, and in its inecption and growth is indigenous to this country. It has made good a thousand-fold the poetic concep- tions of the good fairies bringing gifts; of the Scandivian troll lifting the eart ont of the mire, and in the dark threshing out the corn; and of Briareus with a hundred hands. It works on what might bo too trifling to confer credit, as stendily as on what the armies of the Republic wait for; is neither proud, nor exclusive, nor capricions."

lle then describes the rapid improvement in American labor- saving machines, particularly agricultural machinery ; after which he refers, in the following touching manner, to the fate and fortunes of the inventors of these wonderful improvements:

"But almost every earthly thing, the work or device of man, however grand and beautiful, has some qualification easting a shade of sorrow over our joy. Thus, as we testify our gratitude to the inventors who have nursed in their souls, and with long travail, as in pain, breathed forth tho marvelous conceptions embodied in theso artificial workers for our fields, and mines, and factories, we cannot forget that many of them fainted by the way, died without seeing the fruits of their labors. Even in the cases of somo of those who are known and remembered, what delay, what discouragement, what despair, as they sat by the wayside, waiting long for the tardy recognition !"

Having dwelt upon our material wealth, coal mines and minerals, in relation to our national greatness, such as might satisfy the pride of any people, he continues:

" But our highest elaim to respect, as a nation, rests not in the gold, nor in the iron and the coal, nor inventions and dis- coveries, nor in agricultural produetions, nor in onr wealth, grown so great that a war debt of billions fades out under min- istrations of the revenue collector, without fretting the people; nor, indeed, all these combined. That claim finds its trne ele- ments in our systems of education and of uneonstrained reli gious worship; in our wise and just laws, and the purity of their administration; in tho conservativo spirit with which the minority submit to defeat in a hotly-contested election; in a free press; in that broad humanity which builds hospitals and asylums for the poor, sick and insane on the confines of cvery city; in the robust, manly, buoyant spirit of a people competent to admonish others and rule themselves; and in the achieve- ments of that people in every department of thought and learning."

On the proceedings at the Aeadamy of Musie, Brooklyn, Decoration Day, 1877, a day made memorable by the splendid oration of Gen. Roger A. Prior, Judge Neilson presided. In his introductory remarks he referred to the Soldiers' Home, then a new institution, and then, as if three years had passed, thus pleasingly assumes the work completed, he says:

" Tho land has been secured, the funds largely obtained, and the work has been commenced. As the vision rises before me, I choose, in anticipation, to regard the work as finished, the last stone laid, the last nail driven, this 30th day of May, 1880. In the morning light it looks as beautiful as the chosen City of the King. It is the more fit for its saered nse, as no debt rests upon it to mar or corrode its bloom. This is the day of its consecration. You throw open the gates widely and take the soldier by the hand. You say, 'Sir, this is your land; enter as the heir of a generous people. These shady walks are yours, this house is yours, this your room. Take the easy chair by the open window and look out upon the landscape.' You stand by him and note how his poor tremulous hands move, how his face flushes, how his grim visage grows nlmost handsome, the tears coursing down his cheeks. You hear his voice and bend to listen; he is utter- ing thanks to God and thanks to men. He repeats the word ' Home ! Home! perhaps contrasting this with the home of luis childhood, and forgetting tho troubled time, a dreary waste, that lies between. But he puts a question in a voice so surcharged with emotion that you do not catch the sense. Ho repeats it, and you answer, 'Yes, yon will have part in that also. When yon Icave this for your final resting-place upon tho hill, you will be remembered on Decoration Day.' Ho seems content, and you leave him to his meditations.

"Ladies and gentlemen, we are told, and I think truly, that tho trees upon the range of hills, and on the mountain summits, entice to the earth the else forgotful rain. But moro snrely shall sneh sorvice and charity of a people, exemplifying so nearly the teachings of the Master, draw down from Heaven a blessing so large that thero shall not be room enough to receive it."

On the first day of August, 1875, Judgo Neilson delivered an address beforo the Young Men's Stato Christian Association, which was highly commended by tho pross for its opulence of thought and felicity of diction. In impressing upon his andience the canse they havo for gratitudo to those who had worked for their intellectual benefit, and the slow growth of principle, he uses the following happy illustration:

"At the seashore you pick up a pobble fashioned, after a law of nature, in the form that best resists pressure, and worn ns sinooth as glass. It is so perfect that you take it as a keepsake. But could you know its history from the time when, a rough fragment of roek, it fell from the overhanging eliff into the ses, to be taken possession of by under currents, and draggel from one ocean to another, perhaps around the world, for a hundred

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years, until, in reduced and perfect form, it was cast upon the beach, as you find it, you would have a fit illustration of what many principles now in familiar use have endured-thus tried, tortured and fashioned during the ages. We stand by the river and admire the great body of water flowing so sweetly on: could you trace it back to its source you might find a mere rivulet, but meandering on, joined by other streams, and by secret springs, and fed by the rains and dews of Heaven, it gathers volume and force, makes its way through the gorges of the mountains, plows, widens and deepens its channel through the provinces, and attains it present majesty. Thus it is that our truest systems of science had small beginnings, gradual and countless contri- butions, and finally took their place in use, as each of you, from helpless childhood, have grown to your present strength and maturity. No such system could be born in a day. It was not as when nature, in fitful pulsations of her strength, suddenly lifted the land into mountain ranges; but rather as, with small accretions, gathered in during countless years, she builds her islands in the seas. It took a long time to learn the true nature and office of governments; to discover and secure the principles commonly indicated by such terms as ' magna charta,' the ‘bill of rights,' 'habeas oorpus,' and the 'right of trial by jury;' to found the family home, with its laws of social order, regulating the rights and duties of each member of it, so that the music at the domestic hearth might flow on without discord-the house- hold gods so securely planted that 'though the wind and the rain might enter, the king might not;' to educate noise into music, and music into melody; to infuse into the social code and into the law a spirit of Christian charity, something of the benign temper of the New Testament, so that no man could be perse- cuted for conscience' sake, so that there should all of human sacrifice for mere faith or opinion; the smouldering fire at the foot of the stake put out now, thank God, as effectually as if all the waters that this night flood the rivers had been poured in upon them. It took a long time to learn that war was a foolish and cruel method of settling international differences, as com- pared with arbitration; to learn that piracy was less profitable than a liberal commerce; that unpaid labor was not as good as well regulated toil ; that a splenetic old woman, falling into trances and shrieking prophecies, was a fit subject for the asylum rather than to be burned as a witch. It took a long, long time after the art of printing had been perfected, before we learned the priceless value, the sovereign dignity and usefulness of a free press."

Chief Justice Neilson has a profound regard for Sydney Smith, and wishes to rescue his fame from the trivial estimate of him which obtains among us. His pen has done very much to effect this object; and in a lecture delivered before the Lay College, Judge Neilson succeeded, by ingenious and unanswer- able arguments, founded on facts, in placing the name of Sydney Smith where it belongs-among great intellectual lights. This lecture was published in the Brooklyn Eagle, and made its way from the columns of that paper into the leading magazines and journals, eliciting liberal and highly favorable reviews.

Judge Neilson occupies a conspicuous place as a legal writer, and has largely enriched the legal literature of the nation. The leading legal magazines of the country bear ample evidence of this, while the pages of our law reports contain many of his well-reasoned opinions.

Thus far, we have allowed Judge Neilson to speak for himself, in his own style and manner, on a variety of topics. We cannot, however, take leave of this branch of our subject without refer- ring to another fragment, taken from a series of articles written by him, and published in the New York Independent. Treating of men and methods of the olden times, he refers to Coke and Bacon, and contrasts somewhat their peculiarities. Referring to the conferences which the king had with the judges, often seeking to secure their support of his legal plans, he says that " In one of these conferences Coke thought to teach James I. that he was not above the law, could not add to or alter it, or create new offenses. At another interview, Bacon, the attorney-general, present, and supporting the king in his arro- gant pretensions, the question was put whether the judges would obey the royal mandates. All the other judges, infirm of purpose, answered yes ; but, with the moderation and dignity which be- came his office, Coke said : ' When the case happens, I shall do that which shall be fit for a judge to do.'

"By his independence Coke paved the way for his dismissal from office, a disgrace for which Bacon, neither the greatest nor mean- est of mankind, had toiled, and in which he enjoyed a tempor-

ary triumph. But though, in that deprivation, Coke revealed what Sheridan might have called ' the flabby part of his charac- ter,' he was thus left free to act as a statesman.

" We call up in review before us the life of Coke with alter- nate emotions of regret, shame, sorrow, pride and consolation. Was that life as a journey of a day? If so, it was by pathways through dreary and desolate wastes, over Serbonian bogs, eucli footstep sinking in the slime, but occasionally leading up to Al- pine hights, glowing with celestial light and beauty. It was a life often marred by want of moral tone; often redeemed by elevated sentiments ; full of distortions and contradictions. As the Speaker when in Parliament, under Elizabeth, he was shame- fully subservient ; as a crown officer, extorting confessions from prisoners put to the torture, he was pitiless ; as uttering re- proaches and accusations against Sir Walter Raleigh, on trial for his life, he was fierce and brutal His devotion to study and his mastery of the law were unprecedented; his assertion of his rights as ajudge, against royal intrusion, was admirable; his intrigue to regain the royal favor by the marriage of his daughter to the brother of Buckingham was intolerable; his independence, virtue, courage, devotion in Parliament, under James I. and Charles I. gave special grace and value to the history of the times. But our sensibilities are touched when we find him a prisoner in the Tower of London. The room in which he is confincd, long devoted to ignoble uses, becomes sacred. We enter with rever- ence, as upon holy ground. He is absorbed in his work on the Commentaries. As he writes the hand is tremulous ; but that hand had never been polluted by accepting bribes.

" In some aspects of life and character Coke appears to greater advantage than Bacon. Both were insatiate in their ambition, implacable in their resentments. The one was rough in man- ners, arrogant in speech, ready to strike terrible blows openly; but poor in feigning and clumsy in changing his ground. The other was courtly, plausible, serene, had a gentle touch, even when that touch boded ruin, was an athlete in fencing with cunning words, had the facial adroitness of a trimmer, was covetous, to his own disgrace and ruin. Those who dislike the one may well despise the other. For neither of them can we fecl the love and sympathy we have for Sir John Fortescuc and Sir Thomas More. In scientific speculation, no jurist has commanded as much respect as Bacon. In exact and profound knowledge of the old common and statute law, none could rival Coke. But, in view of the times in which they lived, the work allotted, and the materials in which they wrought, it would be unjust to weigh and estimate their labors with refer- ence to the more enduring and fruitful services of the great English jurists and statesmen of later days. In the freedom of judicial inquiry and direction, in the temper of the people, the condition of trade and commerce, and in the character of legis- lation, there had been a great advance between their time and that of Hardwick. Coke and Bacon could not for any practical purpose have adapted their work to the coming and higher civilization. As in the natural world we have progress and rota- tion, each season performing its appropriate office, so in the in- tellectual, social, and political life of a people events are mar- shalled in due order and relation-a gradual development. What was easy of achievement when the times were ripe for it would have been impossible if attempted prematurely or out of season. When Mansfield moulded and illustrated our commercial law the materials were at hand, plastic and ready for use."

We have referred to Judge Neilson's review of Parker's reminiscences of Rufus Choate. In the Spring of 1884, Judge Neilson published a work on Mr. Choate, written with his characteristic vigor, in a style clear, forcible and vivacious. Among the great merits of the work is the intellectual strength. it exhibits, its originality and the easy and varied narration of the events in the life of that great lawyer. Public opinion and the judgment of the best and fairest critics will sustain us in saying that it is by far the ablest work on Rufus Choate, ever before published. We regret that want of space prevents us from giving a more extended description of this admirable work; but perhaps regret in this direction is only confined to us, for the book is before the public and needs no review, how- ever ably written, to render it a favorite with a reading public.

It will, on its own merits, be, regarded as a standard con- tribution to American literature.

We shall now briefly consider the judicial carcer of Joseph Neilson, though the extent of his work during the twelve and one-half ycars he was on the Bench canrot be mentioned in de- tail. The causes decided by him involved many rare and dithi- cult legal questions ; for instance, as to the consideration, im-

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moral, which destroys a contraet ; as to the peculiar contract which in its nature dies with the person, and cannot be revived ; as to the liability of a landlord to a sub- tenant, injured by an ex- plosion in the house ; as to the effect of a covenant in a deed, granting land, restraining the erection of a building on a part of it ; as to the reelamation of money paid on an unfounded claim if by mistake; as to a father's right to require the Children's Aid Society to return his son who had been sent West. These, and other cases of importance, have been reported by Mr. Abbott.

In the case of Homan v. Farle, breach of promise of marriage, in which a verdict of $15,000 was recovered, a novel and peculiar question arose. Both the plaintiffand defendant were examined, and testified that no request to marry and no promise to marry was expressed. The testimony at large was to the effect that the defendant had paid great attention to the plaintiff. Visits and devotion continued through several months. Thereupon, Judge Emott, counsel for the defendant, moved to dismiss the com- plaint, on the grounds that, as appeared from the undisputed testimony, there was no promise of marriage ; that the prac. tiee which had prevailed before parties could be witnesses, of allowing a jury, upon proof of intentions, circumstances, to infer a promise to marry, no longer prevailed. The question was im- portant. In his charge to the jury, Judge Neilson, after stating that there must be a contract and a proof of it, or the plaintiff could not recover, said : "If all the circumstances, taken together -words, attentions, demonstrations, more or less earnest, assiduous and affectionate-amounted to a declaration of an intent to marry her, to an assurance that that was what he songht-was his conelision-if he intentionally led her to so un- derstand it, and she, in response, accepted that declaration; if there was a meeting of minds on that as an engagement between them to quarry, the implied contract necessary to sustain the action has been proved." Thus, and in other ways, the judge tanght the jury that the contract to marry could be made withont words-a doctrine that excited mueh criticism. But it was affirmed at the General Term and by the Court of Appeals (12 Abb. R., N. S., 402 ; 53 N. Y. R., 267). It may be safely said that a more clear-cut proposition of law was never stated than that quoted above, yet it was conceived and uttered in the haste and exitement of a jury trial.

We cannot pursue these cases further, though we pass by some of novel interest, including that in which the judge held that a married woman could maintain an action for damages against another woman who had enticed away her husband-the first case of this kind ever tried in this State.

It was the fortune of Chief Justice Ncilson to preside at one of the most remarkable trials recorded in the legal history of this country. This was

The Tilton- Beecher Case. - Though the excitement, the pas- sions and the prejudices which this great case engendered have nearly passed away (forgotten with the allegations on which it was founded and on which it was defended), it is still invested, and always will be, with an historic interest. This interest is much the same as that with which we regard the history of some great battle of the past, without giving mnuch attention to the eanses which led to the war in which it was an event, because of its "magnificently grand array;" its splendid generalship; its brilliant manœuvring; its dashing charges; its attacks and its repulses.

After an exciting preliminary contest, brought on by a motion for an order compelling the plaintiff's lawyers to produce a bill of partienlars of the allegations in their complaint, the trial in chief commenced on the HIth of January, 1875, occupying 112 days.

Samnel D. Morris, Thomas E. Pearsall, Roger A. Pryor, Austin Abbott, Win. Fullerton and Win. A. Beach, were for the plaintiff; Thomas G. Shearman, John W. Sterling, John K. Por- ter, Benjamin F. Tracy, John 1. Hill and William M. Evarts, for the defendant. A more imposing array of counsel never np- Jared in any case- men of great learning and experience, of high character in public and professional reputation. The pleas of counsel, and inany arguments upon questions of special and novel interest, will be found in the report of the case, in three volunnes. Another report, with legal notes by Mr. Abbott, is

given in two volumes. The cause was opened for the plaintiff by Judge Morris, in an address of much force and brilliancy with dexterons detail of faets which effectually put the jury in posses- sion of the full knowledge of the plaintiff's case. The defense was opened by Mr. Tracy, since a distinguished judge of the Court of Appeals. If, as was asserted by Lord Eldon, a case that is well opened is more than half tried; the opening of Judge Traey greatly accelerated the progress of this trial. It was a mas- terly legal effort. In the progress of the trial, all the counsel engaged in it, like Homer's heroes before and behind the walls of Troy, took part in this great legal contest. Mr. Pryor, as ap- pears froui the report of the case, as occasions arose, was lumi- nous in his presentation of the law; while Mr. Shearman, with equal force and ineisive cloquence, often discussed difficult legal questions, and each of the lawyers named won fresh for- ensic honors in sustaining the parts assigned them in the ease. As was said of Chief Justice Marshall in the trial of Aaren Burr, Judge Neilson, "ealm, dignified and attentive analyzed the arguments of counsel, noted their relevancy with the nicety of a critie, justifying the reputation which he always had of spotless purity and soundness of judgment," and yet perhaps no trial at nisi prins ever so completely tested the patience and endur ance of a court; no judge ever more fully felt the responsibility of his trust or discharged it with more courteous firmness, with more of that "close investigating faculty which ought to beleng to those who sit on the Bench."

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Civil, political, professional and ecclesiastical history, and commercial and industrial record of the County of Kings and the City of Brooklyn, N. Y., Part 142

Author: Stiles, Henry Reed, 1832-1909. Publication date: 1884 Publisher: New York : Munsell Number of Pages: 1360

Author: Stiles, Henry Reed, 1832-1909.
Publication date: 1884
Publisher: New York : Munsell
Number of Pages: 1360