Our County and Its People: A Descriptive Work on Erie County, New York (Volume 1), Part 77

Author: Truman C. White
Publication date: 1898
Publisher:
Number of Pages: 1017

USA > New York > Erie County > Our County and Its People: A Descriptive Work on Erie County, New York (Volume 1) > Part 77

Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).

Louis Le Couteulx, appointed clerk of Niagara county March 26, 1808; Juba Storrs, appointed March 7, 1810; Louis Le Couteulx, appointed February 11, 1811; Zenas Barker, appointed March 16, 1813; Archibald S. Clarke, appointed February 28, 1815; Frederick E. Merrill, appointed November 6, 1816; John E. Marshall, appointed March 2, 1819; James L. Barton, appointed for Niagara county February 12, 1821, and continued as clerk of Erie county after its erection until December 31. 1822; Jacob A. Baker, 1823-28; Elijah Leech, 1829-31; Noah P. Sprague, 1832-34; Horace Clark, 1835-37; Cyrus K. Anderson, 1838-40; Noah P. Sprague, 1841-43; Manly Colton, 1844-46; Moses Bristol, 1847-49; Wells Brooks, 1850-52; William Andre, 1853-55: Peter M. Vosburgh, 1856-58; Obadiah J. Greene, 1859-61 ; Charles R. Dur- kee, 1862-64; Lewis P. Dayton, 1865-67; John H. Andrus, 1868-70; James H.

Digitized by Google

685

JUDICIARY AND BAR OF ERIE COUNTY.

Fisher, 1871-73; George L. Remington, 1874-76; David C. Oatman, 1877-79; Robert B. Foote, 1880-82; Joseph Ewell 1883-85; Charles A. Orr, 1886-87, and re elected for 1888-90; Charles N. Brayton, 1891-93; Geo. Bingham, 1894-96; Otto H. Wende, 1897-99.

There is a business and financial aspect of the development of the judicial institutions of city and county which is little understood by the public, although it possesses deep interest to the entire community. Absence of records as well as lack of space, precludes detailed reference to this subject in these pages, but brief comparative notes indicating the enormous increase in cost of conducting the judicial business of the county may be made. What sum of money was expended at the date of the formation of Erie county, or even at the time of the city incor- poration, for the maintenance of the courts, is now impossible to state, on account of the loss of records; but we are able to go back as far as the year 1853 (which is only forty-five years ago), and draw a compari- son between that time and the present in this respect. In 1853 the salary of the county judge was $1,600; that of the surrogate, $1,400; the cost of the sheriff's and the district attorney's offices was at that time about $5,000. Jurors' certificates were charged as about $10,000; constables' certificates $3,000, and justices' and court orders $1,825. The salary of the city recorder was $2,000, and that of his clerk $700. The salary of the police justice was $1,600-in all a little less than $5,000. In other words it is probably quite safe to state that the gross cost of the courts in the county in 1853 was well within $25,000. Twenty years earlier, at the date of the incorporation of the city of Buffalo, the amount must have been far less, while at the time of the formation of Erie county in 1821, the whole cost of this feature of county and village government was almost nominal. In those days all public officials served for far less salaries than at the present time, and were more than willing to do so, while many clerkships, stenographer's positions, etc. were unknown. In making up the foregoing total it should not be forgotten that nearly half of the gross sum expended was upon jurors' certificates.

In comparison with the foregoing it is interesting to note the fol- lowing salary list for 1897:

Two Supreme Court justices $14,400

County judge " stenographer. 1,500

5,000

Surrogate, his clerks and stenographer 15,000

District attorney, two assistants, two clerks and stenographer 14,000

Digitized by Google

686

OUR COUNTY AND ITS PEOPLE.

Sheriff and his assistants of various kinds 18,200

Commissioners of jurors, deputy and stenographer 6,900

Five court criers. 5,000

Three court officers 3,000

Making a total of. $83,800

As in some sense connected with the administration of the law, we may add the cost of operating the penitentiary, $25, 939; coroners, $5, - 700; county clerk and employees, $43,216; with clerk to coroners, phy- sician to penitentiary and physician to jail, $1,700-making $76,555, or a grand total of $160,355. And this sum does not include the large sums expended for supplies of various kinds, the heavy cost of juries, and other court expenses, which would swell this sum to enormous proportions.

It is quite probable that other departments of municipal government have been developed from primitive beginnings to their present elabor- ate conditions at no less comparative cost than is shown in the fore- going statement; but it is true that the general public is far more familiar with the financial side of every department of government than with the judicial.

When Niagara county was erected in 1808 it will have been seen that the territory of Erie county constituted by far the larger part of it, and contained by far the larger part of the population. The county seat of Niagara county was the same as that of Erie, until the erection of the latter, and such of the old Niagara county records as were not de- stroyed were retained in Erie county. At the time Niagara county was erected, the governor appointed Augustus Porter, then residing near Niagara Falls, as first judge of the new Court of Common Pleas, hav- ing jurisdiction over Niagara, Cattaraugus and Chautauqua counties. His four associates were undoubtedly Samuel Tupper and Erastus Granger of Buffalo, James Brooks of Cattaraugus county, and Zattu Cushing of Chautauqua county; as to the two latter appointees there is a little doubt as to whether they were appointed just at that time or a little later. This was substantially the beginning of the Erie county organization and of its judiciary.

The first County Court in the county was held at Landon's tavern in June, 1808. There are no existing records of the proceedings, but a session was held in November of that year, at which an indictment was presented which has been preserved. It charged five men who were described as "labourers of the town of Erie," with stealing a cow in

Digitized by Google

687

JUDICIARY AND BAR OF ERIE COUNTY.

1806. The old town of Erie had then ceased to exist, leading to the inference that the indictment referred to the date when the crime was committed. Peter Vandeventer was foreman of the grand jury, and the district attorney was William Stewart, from one of the counties farther east; that officer then had jurisdiction over territory extending half way to Albany. There were at that time only four attorneys in Niagara county, as stated in a letter written by Juba Storrs, who had contemplated beginning practice in Buffalo, but changed his plans. Of these Ebenezer Walden was one, and the others were without doubt Bates Cooke of Lewiston, John Root and Jonas Harrison. Just what additions were made to this number, if any, until after the war, is not known. That absorbing contest attracted universal attention and there was probably little thought of litigation and meager demand for legal talent.

A new "Commission of the Peace," as it was termed, was issued in 1814, under which Daniel Chapin, Charles Townsend and Oliver For- ward, of Buffalo, Richard Smith, of Hamburg, and Archibald S. Clarke, of Clarence, were named as judges; and Jonas Williams, James Cronk, John Beach and David Eddy, as assistant judges. The justices of the peace named in this commission were John Seeley, Philip M. Holmes, Joseph Hershey and Edward S. Stewart, of Buffalo; Daniel McCleary, Daniel Rawson and Levi Brown, of Clarence; Joshua Henshaw, Calvin Clifford, James Wolcott and Ebenezer Holmes, of Willink; Daniel Thurston and Amasa Smith, of Hamburg; Joseph Hanchett, of Con- cord; Asa Cary and John Hill, of Eden. Justices of the peace were appointed until the constitution of 1821 was adopted, under which the office was made elective and their number regulated by law. It is not considered essential to follow the list of justices of the peace farther in these pages.

The death of Judge Samuel Tupper, first judge of Niagara county, in 1817, and other changes of that period caused a reorganization of the Court of Common Pleas, by which William Hotchkiss, of the pres- ent county of Niagara, was named as first judge, with five associates; of these Oliver Forward, Charles Townsend, Samuel Wilkeson and Samuel Russell were from the present county of Erie. One of the jus- tices of the peace appointed in that year was James Sheldon, then a young lawyer who had recently settled in Buffalo, as a pa tner of Charles G. Olmstead, a lawyer of a little longer standing in the village. Mr. Sheldon was father of Judge James Sheldon of the late Buffalo

Digitized by Google

688

OUR COUNTY AND ITS PEOPLE.

Superior Court. In the following year (1818) a law was passed abol- ishing the office of assistant judge, restricting the number of associate judges to four, and requiring a district attorney in each county. Under the law Charles G. Olmstead was made the first district attorney of Ni- agara county.

Almost an entire new set of judicial officers was appointed in Feb- ruary, 1821, a few months before the date of the act erecting Erie county. Samuel Wilkeson was made first judge, in the face of consid- erable opposition based upon the fact that he was not an attorney. But he had numerous influential friends, and after his appointment his native good sense and judgment, diligence and firmness enabled him to fill the position with satisfaction to the community.

The first murder trial in Erie county took place in June, 1815, when Charles Thompson and James Peters were convicted of killing James Burba. The two criminals had been soldiers in the regular army, and before the close of the war had been sent on a scout with another soldier a mile and a half below Scajaquada Creek. It was shown that they proceeded some three miles below the creek to Burba's home, where they committed depredations, quarreled with the owner and killed him. Their comrade escaped. The two men were executed in August, in public, according to the custom at that time. The prisoners were guarded to the scaffold by several companies of militia, under com- mand of General Warren. Glezen Fillmore, then a young Methodist minister of Clarence, preached the funeral sermon, and was assisted in administering the last religious rites to the condemned by Rev. Miles P. Squier, who had just settled in Buffalo as pastor of the Presbyterian church. Very little can now be learned of this event in detail, for it was not customary in those days to give much space to local affairs in the newspapers, however startling they were. This important trial re- ceived a notice in the Gazette containing seventeen lines, without a word of the evidence, while after the execution the whole matter was treated in about fifty lines.

By the year 1821, in which Erie county was erected and a new epoch in its history began, the number of attorneys in the county had largely increased; most of them, had, of course, settled in Buffalo. Indeed. it is doubtful if a regular practitioner at the bar resided in the county, at that date, outside of Buffalo. It is recorded that a cabinet-maker named Wales Emmons, who settled in Springville in 1817, supplied the local litigants with his services as attorney, and there were doubt-

Digitized by Google

689

JUDICIARY AND BAR OF ERIE COUNTY.

less a few other "pettifoggers " at other places before the formation of the county. In the numerous justice's courts these men aired their eloquence and legal lore, when attorneys were not secured from Buf- falo. It is related of Emmons that his services were in wide demand and some of his experiences were very ludicrous. On one occasion he was employed to defend a petty action and seeing that there was no successful defense to be made, and knowing the obtuseness of the jus- tice, he rode out a few miles from Springville to the dwelling of the justice a few days before the trial was to take place, and informed him that the defendant would withdraw and pay the costs. To this the worthy justice assented, pocketed the costs and noted the withdrawal on his docket. When the plaintiff and his counsel appeared for trial they were calmly informed that the suit was withdrawn. "Withdrawn," shouted the pettifogger; "why, the defendant can't withdraw the case." "But he has withdrawn it," replied the justice with much dignity; "he has withdrawn it and paid the costs, and it is entered on my docket, and I will have nothing more to do with it."

A new addition to the bar of 1821 was Joseph Clary, who subse- quently attained a fair professional position and held some local offices. The other leading attorneys of that time were Heman B. Potter, Eb- enezer Walden, Jonas Harrison, James Sheldon, William A. Moseley, Stephen G. Austin, Frederick B. Merrill, Albert H. Tracy, and John Root, "Old Counselor Root," as he was called. The latter was the ac- knowledged joker of the local bar and innumerable stories of his quips and sallies of wit are preserved in print or in the memories of the older practitioners. Of the lawyers just mentioned, Albert H. Tracy was, doubtless, the peer of any in Western New York; but his attention was largely absorbed in politics, and he seldom appeared in the legal arena.

In the spring of 1821, almost before the new county government was inaugurated, there took place the second capital crime, which was fol- lowed by a most remarkable trial, the facts regarding which are given in Stone's Life of Red Jacket and were supplemented by reminiscences of James Aigin. In the spring cf 1821 a Seneca Indian died of some lingering disease after having been nursed by a squaw named Kauqua- tau. As the Indian medicine men could not determine the cause of death, they attributed it to sorcery on the part of the poor nurse. A council was assembled and after hearing such evidence as appeared, she was found guilty and sentenced to death. The Seneca chief, So- onongise, commonly known among the white people as Tommy Jimmy, 87

Digitized by Google

- 690

OUR COUNTY AND ITS PEOPLE.

was secretly chosen as her executioner. The Indians would not kill her off their reservation and under United States jurisdiction, hence some of them followed her to Canada and by some kind of inducement prevailed upon her to return. On the 2d of May Mr. Aigin stated that he saw Tommy Jimmy giving Kauquatau whiskey from a bottle on the streets of Buffalo. Under the influence of the drink and such blandishments as the chief could display, she accompanied him across the reservation line, which ran close by the village. There Tommy Jimmy drew a knife and cut her throat, left the body lying where it fell and strode off to the Indian village. The body was found by white men the next morning and the coroner's inquest soon determined the particulars of the crime and who was the guilty person. The Indian claim of sovereignty over the reservation was not sufficient protection to the criminal to satisfy the white people and it was determined to bring the murderer to trial. Stephen G. Austin, then a young lawyer and justice of the peace, issued a warrant, which was given to a con- stable to serve. He objected to going among the Indians on such an errand, and Pascal P. Pratt, uncle of the present Mr. Pratt who bears that name, was deputized to serve the warrant. He was a friend of Red Jacket and knew Tommy Jimmy well. Mr. Pratt found the culprit at Red Jacket's house, and after stating his errand, Red Jacket pledged that Tommy Jimmy should appear before the justice on the following day, which he did, accompanied by the great Indian orator. Austin's office being small, he held his court on a lumber pile across the street. The slaying of the squaw was admitted, the jurisdiction of the whites disputed, and the victim declared to be a witch. Austin, however, committed the prisoner to jail, for trial in a higher court. Tommy Jimmy was duly indicted. The Indians procured excellent counsel and the plea was advanced that the squaw was executed in accordance with Indian law and on Indian land. This was of course denied by the district attorney. The trial took place at the June term of the Erie county Oyer and Terminer, and the court house was crowded with a motley throng of red men and white men, while around the bar were gathered all the prominent attorneys of that time. Tommy Jimmy sat unmoved during the proceedings, and by his side was Red Jacket as- suming his most stately dignity. During the calling of jurors he scanned each one with the closest scrutiny, formed his opinion as to bias and communicated it to the counsel in favor of either acceptance or rejection. After several witnesses had been sworn Red Jacket took

Digitized by „Google

691

JUDICIARY AND BAR OF ERIE COUNTY.

the stand. The prosecuting attorney sought to exclude him by asking him if he believed in a God. "More truly than one who could ask me such a question," was the haughty reply. When asked as to the rank he held in his nation, he answered contemptuously, "Look at the papers which the white people keep most carefully; they will tell you what I am." This was reference to the treaties ceding Indian lands to the whites. The evidence of all the Indian witnesses was similar in character; while admitting the murder, they justified it by their laws against witchcraft. When his views of witchcraft received some slight ridicule from one of the lawyers, he poured forth a tide of fiery eloquence, a translation of which was published at the time as follows:

What! Do you denounce us fools and bigots because we still believe what you yourselves believed two centuries ago? Your black-coats thundered this doc- trine from the pulpit, your judges pronounced it from the bench, and sanc- tioned it with the formality of law; and would you now punish our unfortunate brother for adhering to the faith of his fathers and of yours? Go to Salem! Look at the records of your own government, and you will find that thousands have been executed for the very crime which has called forth the sentence of condemnation against this woman, and drawn upon her the arm of vengeance. What have our brothers done more than the rulers of your people? And what crime has this man committed, by executing in a summary way the laws of his country and the com- mand of the Great Spirit?

The scene presented as the tall form of the noted chief and orator pronounced this oration, his eyes flashing with indignation, his head erect, and his gestures and intonations bearing the characteristics of true eloquence, was said to have been most impressive. How Red Jacket gained his information of the Salem witchcraft is not known, but probably by conversation with some white man conversant with the facts. The jury found on the question of fact that Kauquatau was executed according to Indian law; but the legal question as to whether that fact exempted the executioner from punishment was left unsettled. The case was, therefore, removed by certiorari to the Supreme Court where it was argued in the following August. The conclusion reached was peculiar. No judgment was rendered. The court was unwilling to decide that the Indians had authority to commit murder, and yet were unable to deny that they had from the first been recognized to a certain extent as independent peoples, with broad rights. The prisoner was discharged by the consent of the attorney-general. Laws were subsequently passed subjecting the Indians to the same penalties for crimes as the whites.

Digitized by yGoogle

692

OUR COUNTY AND ITS PEOPLE.

Early in the year 1825 the public first learned of a remarkable tragedy which took place in this county, the memory of which is not yet effaced. It has come down to the present with the well known title of the crime of " the Three Thayers." John Love was a Scotch- man by birth, unmarried, and followed the lakes as a sailor in summers and peddled notions about the country in winter. In his occupation he had accumulated some money, which he made a practice of loaning to various persons. In the town of Boston lived an old man named Israel Thayer, and his three sons, Nelson, Israel, jr., and Isaac. The first two were married. The family were in very humble circumstan- ces, and to them John Love had loaned a little money. In the fall of 1824, after sailing during the preceding summer in the employ of Joseph Bennett, of Evans, then a young man owning a small vessel of which he was captain, Love arrived in Boston and put up for a time with the Thayers. Suddenly he disappeared. Little attention was paid to this for considerable time, as his occupation took him from one place to another, and it was supposed he was on his peddling trip. When, however, it was noticed that the Thayers were well supplied with money, suspicion was whispered about as to where they got it. After a time one of the young Thayers was seen riding a fine horse which had belonged to Love, and still later the Thayers made attempts to collect accounts due Love which they claimed had been left with them for that purpose. One of the debtors refused payment upon the claim that no power of attorney was presented. By this time current rumor began to credit the Thayers with making away with the peddler and the whole community turned out in February, 1825, in search of the corpse of John Love. At length, after the Thayers had been closely questioned as to Love's whereabouts and had given unsatisfac. tory replies, Nelson and Israel were arrested. The magistrates of Boston offered a reward of ten dollars for the discovery of Love's body; this sum seems ridiculously small, but it was sufficient to still further stimulate the search. After a day of persistent but unsuccessful search, one of a party had his attention called to a piece of sloping ground in rear of the cabin of Israel Thayer, jr. Several men went and examined the spot and there in a shallow grave, the body covered with brush and a little dirt from which protruded the toes, was found the corpse of John Love. The arrest of Isaac and the father imme. diately followed. They were tried at the Erie county Oyer and Term- iner on the 19th and 20th of April, 1825. Reuben H. Walworth, judge

Digitized by Google

693

JUDICIARY AND BAR OF ERIE COUNTY.

of the Fourth District and afterwards State chancellor, presided, and with him sat Ebenezer Walden, first judge of the Common Pleas, and associate judges Russell, Douglass and Camp. District Attorney Heman B. Potter appeared for the people, assisted by Sheldon Smith and Henry B. White, both young lawyers recently admitted to the bar. The prisoners were defended by Thomas C. Love, Ebenezer Griffin and Ethan B. Allen. Israel Thayer, jr., and Isaac were first tried, and Nelson separately afterwards. The father was not tried. The evi- dence was too clear to admit of doubt, and all three were found guilty and sentenced to death. The prisoners subsequently made full con- fession of their crime. Briefly stated, the murder had been planned several days prior to December 15, 1824, on which day Love was per- suaded to go to the house of Israel, jr., whose wife had been sent away. While he was there and seated before the fireplace, Isaac fired at him from outside of the house through a window, the charge striking the victim in the head. As he did not fall at once from his chair, the oldest brother struck him on the neck with an axe, completing the bloody tragedy. Isaac then went away, and the other brothers buried the body as it was found. All the sons said their father did not partic- ipate in the deed. On the 7th of June was witnessed the remarkable spectacle of three brothers simultaneously suffering the death penalty. An enormous crowd assembled to witness the execution; men, women and children, from all the surrounding country, hurried to Buffalo on the day, in all styles of vehicles and on foot. The militia were called out according to custom, commanded by Colonel and District Attorney Potter. Besides a regiment of foot soldiers, there were present two troops of horse and Captain Crary's artillery. The great throng, which had been variously estimated at from ten to thirty thousand people, gathered about Niagara Square, near the west side of which the triple gallows was erected. Again, as on similar previous occasions, Elder Glezen Fillmore was chosen to preach the funeral sermon. It was, indeed, a most memorable scene and left a vivid impression upon the minds of all beholders for many years.

Seven years later, in 1831, another execution took place in Buffalo, which attained wide celebrity and made the year of its occurrence memorable among early settlers as "the year that Holt was hung." A man of that name committed the brutal murder of his wife with a hammer in their room over his grocery on Main street, Buffalo, in Oc- tober of the year named. The crime was quickly punished, for he was tried and executed on the 23d of November.

Digitized by Google

694

OUR COUNTY AND ITS PEOPLE.

The period from 1830 to 1850 often has been characterized as one in which the Erie county bar reached its highest eminence. By some older members the period of its greatest brilliancy has been still further abridged to 1840-45. It is certain that there were then settled in Buf- falo an array of luminous lights in the legal firmament that could scarcely be surpassed in this State. The celebrated firm of Fillmore, Hall & Haven had been dissolved and Mr. Hall had been elevated to the bench, but Mr. Fillmore still stood before juries who listened and were swayed by his candid, persuasive powers, while the wit and tact of the junior member, Solomon G. Haven, often prevailed where other methods might have failed. The old court house had resounded with the fiery denunciations of Henry K. Smith, and Eli Cook, a younger yet powerful advocate, enraptured hearers with his eloquence. Other leading lights were Thomas T. Sherwood, John L. Talcott, George R. Babcock (partner with the Nestor of the profession, Heman B. Potter) Henry W. Rogers, long district attorney, Dyre Tillinghast, Benjamin H. Austin and Seth E. Sill. Most or all of these are noticed more specifically a little further on. Outside of Buffalo Albert Sawin and Lafayette Carver, of Aurora; Wells Brooks and C. C. Severance, of Springville, and a few others, enjoyed considerable practice and the confidence of their clients.

Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.

Our County and Its People: A Descriptive Work on Erie County, New York (Volume 1), Part 77

Author: Truman C. White Publication date: 1898 Publisher: Number of Pages: 1017

Author: Truman C. White
Publication date: 1898
Publisher:
Number of Pages: 1017