USA > New York > Erie County > Buffalo > Memorial of the city and county hall opening ceremonies, Buffalo, N.Y. > Part 5
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LAFAYETTE
was received as the nation's guest in the summer of 1825. Before them and in the adjoining park, such Americans as Henry Clay and Daniel Webster, " the old man eloquent," John Quincy Adams,
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Silas Wright, Martin Van Buren and Sargent S. Prentiss, and others of great fame, have expounded the political principles of their parties, or acknowledged with eloquent words, the attentions of their admiring fellow-citizens. They stand now, as they stood at that time, when the Free Soil Democrats of the Northern States held that grand and imposing convention which nominated Martin Van Buren for president, in the summer of 1848, and enunciated a platform of principles that led the people to reflect upon the aggressions and barbarisms of slavery, and originated the crusade resulting in the overthrow of that institution.
But time will not allow particular reference to the unnumbered occasions of interest which this venerable edifice has witnessed. One by one they will fade from the memory of living men, and like this forum where our fathers gathered, and where we have now assembled, will be remembered only upon the recorded page of history.
And now, Mr. Chairman and Gentlemen of the Bar, we are soon to bid farewell to this honored edifice, and leave it, a silent witness of the
DAYS THAT ARE NO MORE.
It was erected when this place was but a frontier hamlet of a few hundred inhabitants, and now it stands, in the center of a city of over 150,000 people, and surrounded with all the evidences of wealth and modern civilization. For three score years it served the purposes for which it was intended, but now the exigencies of soci- ety demand a change and a new order of things. Like the gray- haired and infirm old man, who once was erect and active in the walks and business of life, but who now totters on the verge of the tomb, it has outlived all usefulness. We do not yield it up without emotion; we cannot sever our particular relations to this place without a thought of the days that are past, but we must say fare- well, and to all the clustering memories, farewell !
At the conclusion of Judge Sheldon's address, Hon. George R. Babcock, one of the oldest members of the Erie county Bar, read an address, as follows :
A PAPER BY HON. GEORGE R. BABCOCK.
Gentlemen of the Bar: It is eminently fit that the occasion of migrating from an edifice that for a period of nearly sixty years has been the theater of administration of law for an extensive region, should be commemorated by the Bar of Erie county. We go to more elegant and commodious quarters, but memory will linger with the associations of the past which here inhabit. Within these walls have transpired events the most momentous that ever thrilled human bosoms. Questions of life and death ; liberty or the felon's cell; honor or shame ; competence or penury ; bright hope or black despair, have here been debated and settled for all time. Here learn-
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ing the most profound, research the most laborious, and eloquence. the most moving have brought their varied tributes and laid them, a fitting sacrifice, upon the altar of law-that shrine whose worship constitutes the distinction between civilization and barbarism. The proposal to leave the old temple and set up our altar on a new site naturally brings retrospection-solemn if not painful.
You have rendered me an honor to which I am profoundly sen- sible, in calling me to preside over your proceedings upon this occasion. I assume that I am indebted to this distiction not to my age, but to the fact that
I HOLD THE OLDEST LICENSES
as attorney and solicitor of any member of this Bar who has re- tained connection with it. Mine are dated in May, 1829. So far as I can learn, there are but four persons living who have, at any period, belonged here, whose date of admission to practice in the Supreme Court is earlier than 1829. One is the Rev. Dr. Lord, of this city, who, after a successful practice of several years, renounced the law for divinity, and is now a resident of this city, honored alike for his talent and devotion to the cause of his Divine Master. Another is Henry O. Van Schaack, now or lately of Onondaga. county, who, as early as 1825, was practicing law in our then rural village of Black Rock. He was esteemed a lawyer of fair ability and exemplary character. He did not remain long after the Erie canal was opened to Buffalo. The third is Henry E. Davis, late of the Court of Appeals, and now enjoying a green old age and good practice in the city of New York. He was the attorney of the vil- lage and clerk of the Board of Trustees in 1828. Soon he removed to New York, since which time he has occupied several official posi- tions with credit. The remaining survivor is Evert Van Buren, lately, if not now, a resident of Chicago. He was at this Bar a few years, in connection with the late Judge Masten, and achieved a. respectable position as a lawyer and advocate.
I have been requested by the committee in charge to give some. sketches of the lawyers who practiced here in the early days of this edifice, and of the course of the administration of the law at that time. Had I anticipated the difficulties which I have experienced in the collection of facts in the short time allowed me, I should have' at once declined. I rely upon your indulgence for the very imperfect manner in which I shall be able to discharge the duty assigned me. I am compelled to rely largely upon memory and tradition, for the greater portion of the records which ought to be available for the data which I require, are inaccessible, if not lost entirely. I shall be glad to have any errors of fact or opinion corrected by my brethren.
My first acquaintance with the interior of this building was in April, 1825, upon the trial of the three Thayers for the murder of John Love. This trial excited a wider and more intense interest than any ever held here. It has formed an epoch from which many persons, now advanced in years, reckon time and events. The year
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1825 had other events of note, such as the execution of the three brothers Thayer, upon one scaffold, erected at the west side of Niag- ara square ; the visit of General Lafayette to Buffalo early in June, and the opening of the Erie canal on the twenty-sixth of October, of that year. Of the actors upon this scene, prior to 1825, I can give little but hearsay. Briefly as to
THE PRESIDING JUDGES.
Before the adoption of the constitution of 1821, Circuit Courts and Courts of Oyer and Terminer were held by judges of the Su- preme Court. I remember to have heard that those legal lumina- ries, Spencer, Van Ness and Platt, had respectively held them here- also Judges Yates and Woodworth, after 1820. William B. Rochester was the first Circuit Judge, under the new constitution, and was succeeded by John Birdsall, in 1826, and the latter by Addison Gardner, in 1829. Judges Rochester and Birdsall were each pos- sessed of fair abilities, and probably had acquirements necessary for a satisfactory discharge of the duties of the office had they been blessed with good health. The business of the Courts in the Eighth District did not proceed to the entire satisfaction of the Bar or suitors under their administration. Judges from other districts came in occasionally and held the courts. The services of Judges Walworth and Betts, who each held terms in 1825, were warmly appreciated by the profession. Judge Gardner held the office nearly ten years, and in the discharge of its duties won fame and the appro- bation of the profession, as well as that of the public at large. He was, indeed, a model judge at nisi prius. Thoroughly versed in the principles of the law, clear in perception, courteous and dignified in manner, he carried on the business of his courts with ease and dis- patch, while he maintained harmonious relations with opposing counsel, which is often a feat of difficult achievement. Of the first judges of Niagara county, embracing the present county of Erie, Samuel Tupper was appointed, in May, 1812; William Hotchkiss, in November, 1818; Samuel J. Wilkeson, in November, 1820; and continued in Erie county until succeeded by Ebenezer Walden, in February, 1823. Thomas C. Love held the office for less than a year, and was succeeded by Philander Bennett, in 1829, who held the office until 1837. How the duties of the office were discharged by Judges Tupper and. Hotchkiss, I have not even a traditionary account.
JUDGE WILKESON
was not a lawyer, but I remember to have heard a competent au- thority assert that his keen perception and vigorous common sense enabled him, in most cases, to form quite correct opinions of the law;from the discussions of counsel and the cases cited. Judges Walden, Love and Bennett were well-trained lawyers, and their decisions usually received the approbation of the profession. They were deficient, according to the present standard, in restraining the
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personalities of counsel, and in holding them strictly to the dis- charge of their proper duties in the trial and argument of causes before them. It may be said in their justification that they merely continued, but did not create, this order of things. The Court of Common Pleas, before their day, seems to have been considered a legal arena in whichi exercises were allowed that were not tolerated at the circuit. If a full history of these gladiatorial contests could be written, it would prove interesting, if not instructive.
The foremost actors, within my recollection, were Root, Sheldon, Love, White, Sherwood, Tillinghast and Barker. They were "cun- ning of fence," and not to be despised as opponents in any field.
It must attract the attention of any who examines the reports, beginning with the 14th of Johnson and ending with the 13th of Wendell, that comparatively few decisions of the Circuit or Com- mon Pleas of this county were overruled. In part this may be due to the different mode from the present of transacting legal busi-
ness. There were but four terms of the Supreme Court in each year, and they were held at New York and Albany, until after 1823, when the August term was transferred to Utica. The facili- ties for travel were decidedly inferior to the present, and our law- yers were usually unwilling to attend General Term when they could, at the best, have but few cases. This involved the expense and inconvenience of employing foreign counsel, and doubtless often led to an acquiescence in decisions with which the parties were not entirely satisfied. Another and perhaps better reason may be assigned. Under the
SYSTEM OF PLEADING AND PRACTICE
then in use, trials were confined to distinct and well-defined issues of fact; consequently, there was no opportunity for such a mass of exceptions to an admission of evidence as characterizes the present system. I forbear to enlarge on this topic lest I incur the oppro- brium of many of my younger brothers, now present, for whom I have a sincere liking.
The office of district attorney was filled by Jolin C. Spencer, from February, 1815, to June, 1818; then by Charles G. Olmsted for about six months; then by Heman B. Potter for ten consecu- tive years. Thomas C. Love filled the place from 1829, to Decem- ber, 1831, when Henry White succeeded and held the office until his death in August, 1832. George P. Barker was then appointed and held the office until December, 1836. It is enough to say here that the important duties of this office were well discharged by those very competent gentlemen. No county in the State, except New York, had so large a share of criminal business as this-a fact due to its frontier position, rapid growth in population, and the demoralization incident of the war of 1812. The lawyers who were in Buffalo, in 1820, as nearly as I can ascertain, were John Root, Ebenezer Walden, Jonas Harrison, Heman B. Potter, Albert H. Tracy, Thomas C. Love, Ebenezer F. Norton, Joseph W. Moulton,
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Jonathan E. Chaplin, James Sheldon, Stephen G. Austin, and William A. Moseley. Harrison went to Louisiana, Moulton to New York, and Chaplin to Northern Ohio, where he became a somewhat distinguished Methodist preacher. In May, 1825, the remaining nine were in Buffalo, and the list was re-enforced by the names of Horatio Shumway, Henry White, Thomas T. Sherwood, Harry Slade, Joseph Clary, Sheldon Smith, Philander Bennett, Roswell Chapin and Major A. Andrews. To these may be added, as belonging to the Bar of the county, Absalom Bull, David Lock- wood and Henry C. Van Schaack, of Black Rock, Belden Slosson, of Amherst, Ezra St. John, of Clarence, and Millard Fillmore, of Aurora-the latter belonging to the Common Pleas only. Of these twenty-seven persons, Van Schaack is the only survivor, if, indeed, he does survive. During the next ten years, which is the limit of my retrospect, there were added many names to the list, making the Bar to consist of fifty-three members, excluding those who were admitted to the Common Pleas alone. Of these, twelve survive, viz .: Geo. R. Babcock, Elijah Ford, James McKay, John T. Bush, Seth C. Hawley, L. G. Marvin, John T. Hudson, John L. Talcott, Theodotus Burwell, Orsamus H. Marshall, Evert Van Buren and George W. Johnson. Six of the survivors reside in this city. Surely, the great reaper has gathered a rich harvest.
The practice of riding the circuit, borrowed from England, pre- vailed in these early days. Eminent lawyers, especially those who had reputation with juries, accompanied the judges from county to county, upon the circuit, to assist on the trial of civil causes and the defense of persons charged with crime. In some cases they were retained beforehand; in others, I think most frequently, they were employed during the sitting of the circuit. They had to rely much upon the preparation which had been made for the trial by the attorney who employed them.
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SOME OF THE MOST EMINENT LAWYERS
of the State have tried causes, of greater or less importance, in this room. I may name Elisha Williams, Thomas J. Oakley, John C. Spencer, Dudley Marvin, Vincent Matthews, Ebenezer Griffin, George Hosmer, Joshua A. Spencer, Henry B. Storrs and, I think, Samuel A. Talcott.
The practice, as regards this county, ceased about 1830. If for- eign counsel came after that year, it was upon a previous retainer. Our own counselors before 1835, notably Fillmore, Barker, White, Sherwood, Tillinghast and Talcott, attended nearly all the Circuit Courts in the Eighth District. Before 1825, Root, Potter, Love, Tracy, Sheldon, and Sheldon Smith usually attended all the Courts in the adjoining counties of Chautauqua, Genesee and Niagara to try their own causes and such others as might be confided to them. The compensation which able lawers received at this period will seem meager, if not mean, to those who are familiar only with legal charges at the present day. In cases of considerable importance,
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when the preparation for trial had been made by an attorney, able counsel charged $20 to $25 for the trial, and where several days were employed in the preparation and trial, $50 to $100 was the highest charge for the services, including often a " summing up" more elo- quent than Westminster Hall could produce once in five years. When the difference in expense of living is considered the discrep- ancy lessens. There were comparatively few books to buy; no expensive clerks ; no high office rents, and $1 per diem was the highest charge at taverns, as good in all essential particulars as the best at the present day. Although many of them, as at the present time, realize
DANIEL WEBSTER'S DESCRIPTION
of a lawyer's fate, "to work hard, live well and die poor," some of our predecessors failed in each of the particulars, as, doubtless, many of our cotemporaries will persist in doing.
The manners of counsel in trying and arguing causes have changed considerably since my observations began, and, in some respects, improved. The present familiar, colloquial style has succeeded one more formal and stately. Personalities between counsel are less common than they were a generation since. Then it was not un- common for counsel to keep up a running commentary upon the case or the evidence, during the examination of a witness, and to be in the brisk discharge and receipt of retorts and repartee with his adversary, while the judge was taking down the testimony. Ar- bitrations were frequent but references rare. Suits in equity were not frequent, and many members of the bar did not take admission to the Court of Chancery at all, or, at least, not until after 1830. There was but little business in the Federal Courts. Such as there was arose chiefly from infractions of the revenue laws. But brief mention of some of the lawyers who played their part on this stage between the years 1825 and 1835. and are now'no more, is all that is permitted under the limits which I have imposed upon myself. In respect to many, full biographical sketches exist in the archives of the Historical Society, or otherwise, but for want of time, I have not availed myself of their records. John C. Spencer has often been here. He impressed me as the embodiment of intellectual force; with a knowledge of the law which secured intuition and a logic as inexorable as fate, he went directly at the head of judge and jury, without apparently seeking to excite imagination or awaken sentiment. He was truly a great lawyer. Dudley Marvin came regularly to the Circuit, and was often engaged in civil and criminal cases. He had a grand presence, an imperturable temper, great knowledge of human nature and a commanding eloquence. His ability in examining a witness, especially an unwilling one, was un- rivalled, and his arrangement of the evidence in his address to juries masterly. He made little use of authorities either with court or jury, but his skill in transferring such legal weapons from his adversary's arsenal to his own was the subject of mirthful comment
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in professional circles. Ebenezer Griffin visited us with great regu- larity and was much employed. He had a majestic appearance, musical voice and pleasing way of presenting himself to courts and juries which, upon occasion, would rise to eloquence. He held high rank as a lawyer and advocate. One of the most exciting trials. of this period took place in this room in 1828.
It involved the question of the proper location of Commercial and Water streets, and consequently the title to lands lying between these streets, as now used, and the Little and Big Buffalo creeks. The whole village took an interest in the controversy, and the village election of that year turned wholly upon it. The trustees, represented by Davies, City Attorney, and Henry R. Storrs, were plaintiffs, and Johnson and Wilkeson, represented by Love, Marvin and Spencer, were defendants. A more unpromising subject for the display of eloquence could not well be imagined, and it is difficult to analyze the grounds of the opinion that prevailed with- in and without the ranks of the profession, that a more brilliant exhibition of classical oratory and logical argument had never been made within these walls than that afforded by
MR. STORR'S ADDRESS TO THE JURY.
I was present, but, really, I was so bewildered that I can tell you noth- ing about the speech. This, I believe, was the only effort made by Mr. S. at this bar. Some years after I heard him argue a demurrer, with Dudley Marvin on the opposite side, in the Superior Court of New York, and it was a subject of remark that both had more eloquence than knowledge of Chitty's Pleadings. Joshua R. Giddings of Ohio tried a cause here about 1830, growing out of the loss of a cargo of goods by shipwreck near Ashtabula. He then displayed the bold, in- trepid and effective oratory which, in after years, upon a wider theater and with larger interests involved, made his name famous. Heman B. Potter, after leaving college, entered the office of Elisha Williams at Hudson, where he was well trained in the principles and practice of the law. He came to Buffalo in October, 1810, and almost simul- taneously established a law office, organized a Washington Benevo- lent Society, a Federal Club, and joined, if he did not organize, a Masonic Lodge. He little thought that the two acts of his earlier life last named would, as they did, form an insuperable bar to political promotion to the end of his days. His appointment as. district attorney constituted the only taste of office that he ever en- joyed. He had the kindliest of dispositions, unimpeachable integ- rity, great industry, united to order and system in all transactions. He soon acquired, what was then considered, a large legal business. He tried and argued his own cases with good success. His addresses to courts and juries were pleasing in manner; his statements of law and fact clear and well arranged, and although he did not often rise to the heights of eloquence, his forensic efforts could not fail to satisfy a moderate ambition. His administration of the office of
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district attorney, for ten years, was all that could be desired. In one case only had he the assistance of counsel, and that was in the summing up of
THE TRIAL OF THE THREE THAYERS.
The case was one to be made out by circumstantial evidence alone. It was prepared by Mr. Potter, and in after years Chancel- lor Walworth said that he had never known one so well prepared and tried as this. Thomas C. Love entered into a good business as the partner of Albert H. Tracy. The ill-health of the latter, and his devotion to political life, soon left the law office in Mr. Love's hands. He had great force of character, a strong intellect, cour- ageous temperament, and an industry that shunned no labor. Into whatever he undertook his whole soul was thrown, and, as may well be supposed, he was largely successful. His addresses to courts and juries made up in clearness and earnest force whatever was wanting in taste and elegance. He was regarded as a safe and faithful counselor.
Sheldon Smith had, I think, no marked standing as a lawyer. As an advocate he held high rank. Before a jury he was fluent and graceful-presenting his case with moderation and clearness-in language extremely well chosen and effective. Gibbon was his model for style, and he was a fond reader of the great historian, as much for his ornate rhetoric as for his facts. Smith was better in getting verdicts than in holding them. I remember a case he tried three times, with a verdict in his favor on each trial. I do not know whether his client's adversary was wearied out, or whether so much competent evidence was produced on the third trial that a fourth could not be obtained, but Smith was triumphant.
James Sheldon is probably little known to most of my hearers, and yet he made a prominent figure in this hall for many years. He was the law-partner of Albert H. Tracy, and afterwards of Charles G. Olmsted. Olmsted was here but a short time when he removed to Tennessee. He had the reputation of possessing supe- rior abilities. Sheldon continued his law practice until about 1832. He had a powerful, well-compacted body, an acute intellect, an ardent temper, and an audacity equal to any occasion. He was exceedingly well prepared for his profession, and a thorough-going practitioner. He had a large business in criminal cases and a fair share of civil practice. His speeches to courts and juries were models of conciseness, expressed in terse, forcible words, and in a manner that seemed defiant of contradiction. In the legal frays of justices' courts and the Common Pleas he was foremost-never avoiding an encounter of any description, and seldom coming off without his spurs. He remembered with impartiality his friends and -enemies. Henry White was, in many respects, a remarkable man. He had a subtle and ingenious mind, great industry, and entire devo- tion to his profession. He read much and thought more of his law books. His entire faculties were devoted to any cause that he 5
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undertook, and he was pertinacious to the last degree of any point or proposition that he raised. His temper was perfectly under com- mand, and he always kept it at home if his adversary lost his own. In the begining of a trial he seemed to seek by inuendo, suggestion and comment upon the testimony being taken down, to irritate and perplex opposing counsel, in which he was often successful, and thereafter White remained " cool as a cucumber." If, as some- times happened, he failed, no one could better assume the role of indignation for the wrongs of his client or " tear a passion to tat- ters" than he. His reputation as a nisi prius lawyer had reached a high point and was growing when he was suddenly cut off in .August, 1832. Stephen G. Austin had a large share of legal business, and I believe that his learning and ability as a lawyer are not fully appreciated by the present members of the bar. He was well read in his books, and at least down to the time of forming a law con- nection with Barker, tried and argued his own causes, with a fair measure of success. He was fond of that lost art-special pleading -and delighted to take a case through all its stages, from Narr to Surrebutter before bringing it into this room. Dyre Tillinghast came here in 1826, and at once secured a very respectable standing and business. He was an excellent practitioner, and had great clerical ability. He was a ready, handy man. Whatever he could do at all he could do at once. His first cause here was tried one hot afternoon in August, and he somewhat surprised our lawyers by drawing up a bill of exceptions on the spot and having it settled and signed before the judge took his supper. He was at home in all forums. A justice's court, a board of town officers, an ecclesi- astical convocation, a court martial, a trial at the Sessions or Cir- cuit, a case in Chancery or in Admiralty, were equally his delight. and in each he acquitted himself with a fair portion of credit. His reading of law seemed to be without method, although he read much. He had a facility for quoting cases by the book, and some- times page, that had relation to the subject under discussion, al- though he did not always hit upon the point or principle decided by them. William A. Moseley was fourteen years at this bar-hav- ing entered in 1820, and retired on his election to the Assembly in 1834. He possessed fine ability and acquirements, including a fair knowledge of law and its practice. He tried and argued his own causes, which were most thoroughly prepared, and had good success with them. In the " heavy fights" in the Common Pleas he bore himself well, having the ready wit and biting sarcasm so useful in such encounters. It was thought to be a phenomenon that with such abilities as he possessed he should have been four years in the Senate and four years in Congress without making a speech in either, and four years in the Court for the Correction of Errors without delivering an opinion. It did not arise from inattention to the ordinary duties of the positions, for no one excelled him in punctuality of attendance and knowledge of what transpired in the bodies of which he was a member.
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