Civil, political, professional and ecclesiastical history, and commercial and industrial record of the County of Kings and the City of Brooklyn, N. Y., Part 146

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

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Judge Kent was born at Albany in 1802 ; he had the best ad- vantages for an education. After being graduated at Union College, he pursued his studies and entered the profession in which his father, the great Chancellor, stood pre-eminent.

He commenced his career as a lawyer, in one respect, under a disadvantage-the shadow of a great name. The worid is apt to measure the son of a great man by an unfair standard. In- stead of passing on his merits and talents by comparison with other young men, his contemporaries and peers, it withholds its commendation unless he displays abilities which would add to

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his father's fame. But Mr. Kent quickly showed himself equal even to such a task. He was early engaged in very important causes, in which he manifested powers and learning that placed him at once in the foremost rank of the profession. " . .

He possessed remarkable power of analysis, and saw with the quickness of intuition the right and morality of a casc, and tho principle of law involved, and was ever ready with the learn- ing of the law requisite for their illustration. Tho force of his argument was aided by the singular felicity and purity of the language in which it was always elothed; so beautiful and at- tractive was his style, so happy his illustrations, so abounding in wit and grace and learning and thought that, whether he was arguing a case or trying a cnuso, not only the court or jury which ho was addressing, but all who were present having no coneern with the subject, including nlike the members of the Bar and mere spectators, were all his eager and delighted listeners."

Mr. Silliman's description of Kent as a judge will be read with interest:

"He continued in tho active practice of the profession until 1841, when he was appointed to the office of Circuit Judge, on the retirement of Hon. Ogden F. Edwards, and when tho ermine rested on his shoulders, it touched nothing less spot- less than itself. Never were the high duties of a judge per- formed with more of purity or fidolity. Never were the scales held by a more even hand. Never were the kindly and charit- ablo impulses of a gentlo nature more entirely restrained and subordinated to the duty of an inflexible and impartial admin- istration of the law, whether in criminal or in eivil cases. In 1844, his health having been impaired by too close appliea- tion to his judicial duties, he resigned his station on the Bench, to the great- it is not extravagant to say the universal-regret of the profession and of the community. He then visited Europe, and while there, in 1846, received the invitation, which ho accepted, from Harvard University, to succeed Judge Story in the Law School at Cambridge. The samo industry, and success, and usefulness which had marked his previous career attended his services in the Law School, until the close of 1847, when he resigned his professorship that he might be with his venerable father, whose twilight was fast fading into night."

Mr. Silliman gives a brief review of Judge Kent at the Bar, after having resumed his profession, describing some of the very important cases which he conducted.

"In these cases, not to speak of many others," he says, " Mr. Kent exhibited abilitics of the highest order and the rarest learning, and earned a reputation which (in the language of one of the resolutions before us) justly placed his memory by the side of his illustrious father. The great men of the Bar were engaged in the learned discussion of these cases. I may not namo those who are still among us, and most of whom are now present, but of those who aro gone wero Jones, and Jay, Ogden and Webster, and Griffin, and Sanford, and Spencer, and Beardsley, and Hill, and Butler. Such wero tho allies and the adversaries of our departed brother such were his friends and compeers such were tho great intellects with which his own found congenial intereourse. * * * Judge Kent possessed, as did his father, a most remarkable memory. He forgot noth- ing. Every fact, every rule, every principlo, when once attainod, remained with him always.

Judge Kent combined what are, perhaps, rarely combined large general knowledge with great accuracy of knowledgo. As a belles-lettres scholar, ho had few equals in this country. His reading was not limited by the ordinarily wisorulo, 'Non multa sed noutum,' but it was both multa et multum. Whatever hestudied he studied thoroughly; he read everything and he remembered everything; what ho rend did not remain with him a mere accumulation of knowledge and ideas, but bocame a part of his mental nature, storing and strengthening his mind without impairing its originality. A mind thus enriched, and with sneh resources, could never havo suffered from solitude. It wonld find within itself abundant and choice companionship. Em- inently was this the case with our departod friend and with his venerable father.

Chancellor Kent, during his last illness, passed many silent watches of the night without sleep. When asked if in those long, sleepless hours he suffered from sad and depressed feelings, he replied that he did not, but that, on the contrary, be derived grent satisfaction in reviewing in his mind some leading principles of the law-going back to its origin to the reasons from which it sprang and then recalling in their order the subsequent cases, in England and this country, in which it had been considered, shaped, enlarged or qualified, down to the final settled rule. .

Continuing his remarks concerning Judgo Wm. Kent, Mr. Silliman says :

" Honors sought him, prosperity attended him, friends loved lrim, and now deeply lament his loss. I have never known a man whose wit and humor and knowledge were so abounding and so blended, and the instruetiveness, and beauty, and grace, and the simplicity of whoso conversation was so attractive and fascinating. I have never known a man more fearless in assert- ing the right, and in the performance of what he deemed his duty. I have never known a man more inflexiblo in principle, or more strictly upright. Though to a stranger what I have said might appear the strained languago of eulogy, yet this meet- ing is full of witnesses of its truth. . . I will not trust myself to speak of the personal relations and almost life-long intimacy that make his death to me, indeed, a calamity, nor ef tho hopeless sorrow of that homo of which he was the light, the pride and the joy; but with the same beautiful invocation which he lately uttered on the death of Mr. Butler, let ine say: 'Tread lightly on his ashes, ye men of genius, for he was your kins- man ! Weed clean his grave, ye men of goodness, for he was your brother ! "

We have quoted liberally from Mr. Silliman's address because of its full and just description of Judge William Kent, and be- cause of its happy allusion to his illustrious father. Such a de- scription is cminently appropriato with the intended plan and scope of our work.

It is, perhaps, proper to add that Mr. Silliman was followed in his remarks by thoso great lights of the Bar, William Curtis Noyes, James T. Brady, Hon. William Fullerton, und others. Since this meeting of the Bar, Mr. Brady and Mr. Noyes have followed Judge Kent to the tomb.

Mr. Silliman's address at the meeting of the New York City Bar, November 2, 1872, on the death of Marshall S. Bidwell, Esq., and his memorial address before the Bar Association on the death of Edgar S. Van Winkle, Esq., February 13, 1883, have passed into legal history.

Perhaps among all Mr. Silliman's productions none exhibit more research and scholarly attainments than his Address before the graduating Law Class of Columbia College, delivered on the evening of Wednesday, May 15, 1867, and bis Review of E. (. Benedict's Translation of the Hymns of the Middle Ages and other Medieval Hymns, published in 1868.

We cannot, in forming our history of the Bar, avoid the temptation to quote portions of Mr. Silliman's address to the graduating class above referred to. In his exordium lie says :

" In welcoming you, gentlemen, to the brotherhood of the Bar, you may well be congratulatod on the peculiar advantages you enjoyed in preparing for its duties. You have not been left to pick up, as you best might, hero and there, scattered frag- ments of legal knowledge, but you have been systematically in- structed in the principles and philosophy of tho law. You have been guided and trained by eminent and learned teachers in a school that ranks second to none in tho land for the completeness of its system and the thoroughiness of its instruction. You come not as undrillod militia, but as graduates from the very West Point of the profession.

Widely different havo been (with few exceptions) the oppor tunities of legal instruction in this country until a comparatively recent period. The student was required to enter tho office of a practicing attorney, and there to pursue his studies. He was at once engaged in tho practico of that of which he had not learned tho principles. He became familiar by daily observa- tions, and as n copyist, with the forms of conveyanciag and phraseology of pleadings, without understanding their reasoa. · · · As a general rule, it was impossible for the attorney, in whose office the student was engaged, to givo any material attention to his studies, and his progress and attainments, there- fore, lackod system, and wero slow, confused and uncertain. A formal and superficial examination finally passed him to the Bar, where he could rarely feel at home until he had Required by subsequent laborious and anxious practico a knowledge of very much that he should have attained at the outset. * * In Europe, on the other hand, full and careful instruction in the prin- ciples of law has ever been a pre- requisite to ndamission to the Bar, and the schools in which such instruction has been given have been organized, fostered, and more or less regulated by public authority. Regular schools of law were established in Rome, in the time of Augustus, at which those who aspired to

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the honors of the forum were assiduous students. None but the thoroughly learned and skilled could dream of such honors where Scaevola, Sulpicius and Cicero had been competitors, and where even the boys, according to Cicero, were taught the ' twelve tables ' as a necessary lesson (discebamus enim pueri XII lablulas ut carmen necessarium*) to instruct them in so much of the laws as should be obtained by every Roman citizen. In France such schools existed as far back as the twelfth century. From an early period the law has been, and still is, most fully and elaborately taught by renowned professors in the Universities of Germany and Holland. In England the schools of law have been less regular and complete than on the Continent, but the qualifications of candidates for the English Bar have, neverthe- less, been measured by a very high standard."

Speaking of the perfect system of instruction, and the profic- iency of students in the Law School of Columbia College, Mr. Silliman says :

" We regard the annual reinforcement of the Bar by a class of accomplished and educated gentlemen who have been thus thoroughly taught in the principles of the law, and whose minds have been carefully disciplined and trained for its in- tellectual duties, as sure to elevate the standard of legal at- tainment, and to promote the honor and usefulness of the profession. * * * * * * * * * *

A grand future beckons you, and you have the best prepara- tion for the course. But we must bear in mind that other stout knights, who have had no such advantages as you have had, will enter the lists with strong lances, and compete with you for the higher prizes. The great lawyers who preceded us-the Hamil- tons, the Kents, the Jays, the Van Vechtens, the Spencers, the Hills, the Wellses, the Oakleys, the Duers, the Woods, the Talcotts, the Ogdens, the Hoffmans, the Van Burens, the Butlers-had not such training as you have enjoyed. But what summits did they not attain !

I have spoken of this school as the ' West Point' of the pro- fession ; but we have seen within the last six years that other soldiers than those who graduated at West Point won victories and reaped laurels-marched to the front with muskets on their shoulders and returned with stars on their shoulders."

Mr. Silliman then proceeds to briefly consider the rise and progress of our laws, and their derivation from the laws of antiquity.

" Many of the provisions of our 'Revised Statutes' had their origin far back among the centuries, and our professional pre- decessors in ancient Rome and Greece enforced and adminis- tered many of the rights and remedies which are enforced and administered in the City Hall to-day. Since the foundations of much of the law with which you are to deal were laid in those earlier ages, the archæology of law is an important part of legal study, and it is not more important than attractive.

In the early history of Rome, we find the Romuluses and Remuses disposing of their property by last wills and testaments, making every variety of bequests, devises and trusts, which called for numerous rules of interpretation. Land was bought and sold, and deeds given; and in her subsequent Codes were various laws relative to sales, highways, easements, bailment, marriage and divorce, ante-nuptial marriage settlements, parent and child, guardian and ward, domicile, subrogation, partner- ships, joint stock associations, corporations, arrest for debt, in- junctions, slander, libel, bail, arbitration, statutes of limitation, common pastures, riparian ownership, alluvion, boundaries, the rate of interest, maritime contracts and liens, common carriers, and most of the other rights and instrumentalities of modern civilized society. The law as to trusts and trustees was well defined long before the Christian era, and we find Cicero remind- ing Atticus that adverse possession did not apply in cases of trust or guardianship.

Among the legal antiquities which almost verify the saying that there is 'nothing new under the sun,' is an Egyptian deed, executed more than a hundred years before the Christian era, which was sometime since found in a tomb in Upper Egypt, by the side of a mummy, supposed to be that of the grantee. It was written in the Greek language (which it seems was com- monly employed in that country during the Greek dynasty). It has all the parts requisite at this day in a warranty deed. It contains the date, the names of the parties, the consideration, the grant, the description of the premises, and the warranty of title, and is under seal.

Still earlier deeds (six hundred years before Christ) are re- cited in the book of Jeremiah, indicating the date, the names of

the parties, the purchase money, a description of the purchase money, witnesses, scal, and the book of records."

He makes the following pleasing allusion to the laws of Equit- able Estoppel :

"This law," he says, "existed fifteen centuries before Christ, when Moses, in effect, * ruled that Qui lacet consentire videtur. The same great lawgiver and judge, who was also the earliest re- porter (7 Coke's R., 126), established principles of the law of bailments, t which continue to be in force to this day. Lord Coke, in his reports, dissented from the doctrine of Moses, as held in the leading case of Laban. v. Jacob (reported in Genesis, xxxi .. , 39), but Sir William Jones, in his excellent work on Bail- ments (p. 41), differs from Coke, and concurs in the early opinion of Moses."

In referring to lawyers in regard to hasty legislation, &c., Mr. Silliman says:

" With all their respect for precedent and their adherence to principles, lawyers have been the constant pioneers and advo- cates of judicious reform and checks on hasty legislation."

After commenting upon the many salutary changes that have been made by the laws in practice, and the doing away with the mysteries and subtleties of special pleading and the disappear- ance of technicalities, and the simplifying the modes of pro- cedure and the enlargement of the power of amendments, he very candidly says that-

" All change is not improvement, and much of the hasty legislation at Albany, and its consequent litigation- though profitable to lawyers-is hurtful to the people. Much, too, is, to say the least, of doubtful wisdom."

In speaking of the honor that should govern the practicing lawyer, he said:

"No man can, consistently with personal honor or professional reputation, misstate a fact or a principle to the court or jury. The man who would cheat a court or jury would cheat anybody else. Measured by the lowest standard, that of expediency, no lawyer can, in any case, afford to act meanly or speak untruly. He owes no such duty to his client; an honest client would not be safe in the hands of a lawyer who would do either."

The popular mind, in considering, as it delights in doing, the duties and the faults of the legal profession, dwells most fre- quently and most severely upon the problem of defending criminals known to be guilty. The fallacy involved in the preva- lent objection is in the notion that the interest of morality demands, always, the punishment of a bad man. This may be true; but the interests of morality and of social order demand, 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; for those established and known laws, those fixed rules of procedure, are all that distinguish the institutions of civilization from the sav- age cruelty of an Oriental autocracy or the blind fury of a West- ern lynching mob. 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 provision which you have charged him with violating," is defending not so much the trembling wretch at the bar, as society itself, and the innocent man who may to-morrow be driven by clamor to crucifixion.

But if, in the excitement of controversy, the advocate quibbles with words, or perverts evidence to save his client, he becomes himself an offender; his offense being, not that he defends a guilty man, but that he does that which would not be honest if done in behalf of an innocent man.

In several important criminal cases tried at the Kings County

* Numbers, zrz., 14.

1 Genesis, xxxi., 39 ; Exodus, xxii., 7, 8, 12, 14, 15.

* De Legibus 2, Sec. 23.

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Bar, to which we have alluded in the course of this work, the counsel for the defense have been condemned, more or less severely, for attempting to shield guilty criminals. We might cite as an evidence of this the defense interposed on behalf of Gonzalez and Pellicier, and that of Fanny Hyde, and other eases. We think Mr. Silliman has disposed of this question in a manner which should carry conviction to all. He says:

" It needs but little thought to convince even the vulgar, that the idea that the vocation of lawyers is inconsistent with the strictest truth, is but vulgar error. In support of the charge, it is often said, that counsel will not refase to defend a prisoner whom he supposes to be guilty of the offense for which he is to be tried. The answer to this is plain: The accused person is not to be tried by the impressions, or even by the convietions, of any one man, whether lawyer or layman. The law of the land requires, not only for the sake of the accused, but for the safety of every citizen, that no man shall be tried and convicted except by a jury of twelve men. The question of his guilt or innocence calls for a division of labor in the process by which it is to be determined. It is made the duty of the connsel for the prosecution to conduct one, and of the connsel for the prisoner to conduct the other branch of the investigation; for the former to colleet and present before the jury the evidence against the accused, and to state such views adverse to the prisoner as re- sult from the whole testimony; and for the latter to colleet and present before the jury the evidence in favor of the prisoner, and to state all snch views in his favor as result from the whole testimony."

"If counsel assumes the guilt of an accused person before that guilt has been judieially aseertained, if he determines at the ont- set that the accused is guilty, he takes upon himself mnost un- justifiably the combined eharaeter and prerogative of acenser, witness, jury and judge; and if, beeause of such conclusions in his own mind, he refuses to eondnet the defense of the prisoner, he throws the weight of his own character and convictions into the scale against him."

It was, perhaps, this view of the case that induced Rufus Choate to undertake the defense of Albert J. Tirrell for the murder of Maria Biekford, one of the most important criminal trials ever tried in Massachusetts, and strongly analogous to Ogden Hoffman's defense of Richard P. Robinson for the murder of Helen Jewett. Mr. Choate deliberated a long time before entering on that defense, so desperate, so splendid, and so suc- cessful. He was severely criticiscd by the press for saving what the popular mind believed to be a guilty man from the gallows. " He threw doubts," said his crities, "upon the testimony of the Government, by subtly dissecting what seemed certain, by artful evidence tending to show that the death of the woman was prodneed by her own hand. Ilis defense was so singular and audacious that it seemed almost to paralyze the Attorney- General," and yet, when the trial was over, and the public reflected candidly upon Mr. Choate's defense, the popular verdict was in his favor.

Here is an instance where Mr. Silliman's proposition, that counsel shall not throw the weight of his inthence against a prisoner, by deeiding in his own mind that he is guilty, and therefore refuse to defend him, is illustrated.

In reference to the immense business transactions, financial and otherwise, in which lawyers participate more or less, and the temptations which they in common with all business men are subjected to, he says that cases of fraud are only exceptional and rare.

In considering this subjeet, Mr. Silliman makes the following happy allusion to Wall street:

"Nothing is less just than the narrow imputations to 'Wall street' of merely overrenehing, eraft, and sordid lust for money. It would be difficult to overstate the extent of the dealings, or the amounts involved in them, which are had between men hourly at that great financial centre, where each acts exclusively in reliance on the honor and good faith of the other. Bad men, of conrar, are to be found there as everywhere, yet I believe that no piece of earth is daily trodden by more of honor, enterprise, intelligence, generosity, faith, integrity, than that on which the setting sun daily casts the shadow of the spire of Trinity."

We have referred to Mr. Silliman's Review of the Hymns of the Middle Ages. Of this production we may say that it exhibits not only the learning of the Bar, but the erudition of the seholar.

"Lawyers in full practice," he says, "are like omnibuses, which, when entirely full, can always make room for one more. Mr. Benediet, forever busy in the courts and at his chambers, se engrossed by clients and their causes of charter-parties, insur- ance, collisions, bottomry and respondentia, trusts and all other matters of admiralty, common law and equity, that further occupation would seem impossible, yet contrives to steal hours for literary labor and to hold learned converse with St. Hilde- bert, Jacobus de Benedictis, St. Ambrose, St. Thomas Aquinas, Pope Innocent the Second, Thomas of Celano, Thomas A Kem- pis, Peter the Venerable, Prudentins, Damiani and many other mediæval worthies. It is well for the brain-sick profession that, from the time of Cicero down, its members have been able to find rest and variety in literary toil and research. Many of the most eminent lawyers in this country and in England have been hardly less distinguished for their classical learning than for their achievements at the Bar.'

Mr. Silliman then proceeds to give a long list of eminent American and English lawyers, who have united literary labors with professional suceess. He speaks of the growing taste in the profession for Latin poetry, and especially for the Latin hymns of the Christian Church during the medieval period.

"Some of these poems," he says, "are among the finest speei- mens of the wonderful compaetness and power of expression of the Latin language, and no mean laurels await him whe can most nearly render them in English word for word, and thought for thought. This can only be done, or rather approximated to, by one who is master of both languages, and is inspired by the exquisite beauty, the pathos and the sublimity of the original. It is well remarked by Dr. Sehaff that no poem has so often challenged and defied the skill of translators and imitators, as the Dies Ira.

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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 146

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