The bench and bar of New-York. Containing biographical sketches of eminent judges, and lawyers of the New-York bar, incidents of the important trials in which they were engaged, and anecdotes connected with their professional, political and judicial career, Part 10

Author: Proctor, L. B. (Lucien Brock), 1830-1900. cn
Publication date: 1870
Publisher: New York, Diossy & company
Number of Pages: 812


USA > New York > The bench and bar of New-York. Containing biographical sketches of eminent judges, and lawyers of the New-York bar, incidents of the important trials in which they were engaged, and anecdotes connected with their professional, political and judicial career > Part 10


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ments. This person testified, with considerable vain glory, that he had practiced medicine for a long time, during which he had successfully treated many cases of insanity; that he was familiar with the disease ; that he had carefully examined the prisoner ; that he had no doubt but that she was perfectly sane when the deed was committed.


"In fact," said he, "the whole diagnosis of her case convinced me that there was about her no cere- bral disorganization ; that she was only wicked, per- verse, and awfully malicious."


With this flourish, he was about leaving the stand, thinking his task was done.


"Stay a moment, Doctor," said Mr. Smith. "Let me ask you a few questions."


With a look that plainly said, "Go ahead, sir, you can make nothing out of me," the doctor took his place upon the stand again.


"How old are you, Doctor ?" asked Mr. Smith.


"I am forty-five, sir."


" How long have you practiced medicine !"


" About eighteen years."


" During that time how many cases of insanity have you treated ?"


"Oh, I don't know ; a great many."


" Well, have you treated a hundred !"


"I guess not; but if you will let me send for my books, I can tell."


"Never mind your books. Make an estimate of the number ?"


" Well, then, say about forty."


" Very well, doctor, what is insanity ?"


" It is a disarrangement of the faculties."


"Did you ever have any difficulty in ascertaining a case of insanity ?"


"Not in the least."


" What are the symptoms of insanity ?"


"The patient's actions, principally."


" What are some of those actions ?"


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"Why, he always shows a propensity to do wrong ; to do what he ought not to do."


"Doctor, what is sin ?''


" Sin-sin-why sin is a propensity to do wrong."


"Now, when a man does wrong, tell me how you ascertain whether the act is the result of sin or in- sanity ?"


The answer to this question required more knowl- edge of pathology and theology than the doctor pos- sessed. After making several attemps to answer, he declared he could not, and was permitted to leave the stand.


In the year 1838, Mr. Smith was appointed district- Attorney of Erie County. This appointment was ten- dered to him as a compliment to the lawyer. It was then, as it still is, an office requiring the exercise of much legal ability and learning. After discharging its duties with much credit, for seven months, he was compelled to resign, in consequence of the large amount of civil business which had accumulated on his hands.


In the year 1844, he accepted the office of recorder of Buffalo ; in the discharge of the duties of which he evinced much judicial ability, a fearless integrity, and a modest independence. He saw nothing, knew noth- ing, cared for nothing, except the evidence and the law in a case. On the bench he presided with ease, dig- nity, and courtesy. With these qualifications, it was impossible that he should be otherwise than popular. He occupied this position for several years, and was at length succeeded by Judge Masten.


In the year 1850, he was elected mayor of Buffalo. During his mayoralty the governor-general and par- liament of Canada, while on a tour of inspection of the public works, proposed to visit Buffalo. Accordingly, notice to that effect was sent to Mayor Smith, an- nouncing the time when they would reach the city. But owing to some unforeseen event, the distinguished visitors were delayed until long after the appointed


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time. The military and civic societies, which had turned out to receive the guests, in obedience to the order of the mayor, had been dismissed, when notice was received of their approach. With commendable activity he prepared for them such a reception as cir- ยท cumstances would permit. In a brief, dignified, and statesmanlike manner, he welcomed the parliament and its officers to the city.


The liberal, high-toned, and philosophic views of international policy which this speech contained, spoke highly for the abilities of Mr. Smith. It was received with much gratification by the Canadian par- liament, and by the public generally. So gratifying was it to the visitors that copies were sent to the home government, with the whole proceedings, by Lord Elgin ; and in due time, Earl Gray, then minister of foreign affairs, acknowledged the receipt of it to our secretary of state.


It would be strange if a man with the abilities, and in the situation of Mr. Smith, should not have been attracted by the allurements of politics. In many respects, he was singularly qualified for a political leader and statesman. Had he lived where his quali- fications could have had a proper sphere of action, his name would have been written with the most dis- tinguished statesmen of his time, for, after all, circum- stances make the man. There are many, whose names are now high on the scroll of fame, who never would have been lifted from obscurity but for the recent re- bellion. By his talents alone, Mr. Smith, as we have seen, at an early age, became a leader in a great and powerful party. That he had abilities for a far higher position than he ever attained, none will deny.


The doctrines and political philosophy of Jefferson were deeply impressed in his nature, and he clung to them with obstinate fealty. He belonged to that school of politicians, now almost traditional, about which lingers the charm of political honesty. Mr. Smith was repeatedly placed in nomination for the


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Assembly, several times for State Senator, and twice for representative in Congress. But during these periods, his party in the district, was in a hopeless minority, and his defeat was a matter of course. Yet his name always gave strength to the party ; and, as was once remarked by an opposing candidate, "The name of Henry K. Smith always raises voters from the vasty deep." No higher compliment than this could be given by a political antagonist.


In the year 1840 he was a delegate to the national convention which nominated Mr. Van Buren for pres- ident. His speech, made on the question of repre- sentation in this convention, was listened to with pro- found attention.


In the year 1848, he again represented his district in the national convention at Baltimore, which nom- inated Mr. Cass for president. In this convention the State of New York was represented by two sets of delegates. After the admission of both delega- tions, Mr. Smith delivered a speech on the manner of counting the votes of these delegations. It was a masterly and patriotic effort. Portions of it were in- spired by prophetic truth. He was appointed post- master of Buffalo in 1846, and held the office two years and a half.


In the spring of 1834, Mr. Smith was married to Miss Voorhies, the accomplished daughter of a wealthy merchant of Johnstown. This union, which was the result of mutual and deep affection, and which prom- ised much happiness, was terminated by the death of Mrs. Smith, which occurred shortly after her mar- riage.


In the year 1848, he was united to Miss Thompson, daughter of Sheldon Thompson, Esq, of Buffalo. This lady, to much personal attractions, added many intellectual and shining qualities, with the possession of that prudence and polish which ren- dered her a proper companion for a man like Henry K. Smith.


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But death again entered his household and removed her who was its life and light, the hope of his coming years. This estimable lady survived her marriage but eighteen months, leaving a son, Sheldon Thompson Smith. Her loss was a source of deep, almost inconsolable, grief to her husband. But in the care and education of his son, in his professional duties, in politics, in all the affairs and duties of life, he sought forgetfulness.


"But ever and anon, of grief subdued There came a token like a scorpion's sting,"


and he could not forget the loved and the lost. His mother's softness and gentleness crept to his heart and the strong man mourned, how deeply was never known, save by those who knew him best. If as a balm to his "hurt mind," he sometimes sought lethe, or that which, at best, brings only chaotic misery, let us remember that there is no darkness like the cloud of sorrow, and if he, who in this wrong world, oppressed with mental pain, " worn with toil, tired of tumult, wounded in love or baffled in hope," can- not take the wings of a dove and fly from all error, he should find no unforgiving censors in these who have never suffered, and therefore have never fallen.


But Henry K. Smith was always "better than his mood." However baffled, sad or absorbed, his dignity, his sense of the lofty, and the beautiful, never deserted him; and these gave tone, elevation, spirit to each phase of his life, and rendered its record suggestive. His social qualities were of the highest order. His sensibilities vibrated to the lightest touch. He sought and drew to himself persons of the highest culture and refinement. His faults were, perhaps, as many as those of other men in his sphere of life and activity.


"Then why not speak of them more plainly ?" perhaps some cynical critic may ask.


Simply because his virtues, his talents and useful-


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ness have thrown them forever into the shade; for such is the destiny of excellence when linked to the common frailties of man.


A traveler who had a passion for visiting antique churches and cathedrals, always sought the charnels beneath them, and always disregarded the grand frescoes and beautiful. altar pieces of Horberg, the Madonna of Raphael, the graces of Correggio, the architectural beauty and grandeur about him. When asked why this singular preference, he replied that amid so much perfection, beauty, and elegance, he was anxious to learn how much corrup- tion there was, how much he could find that was revolting. Reader, mine is not the task, nor the preference, of that traveler. It is enough, if in the character and life of men like Henry K. Smith, the bar, society, and humanity have been adorned. Let others search the charnel house for human corrup- tions.


Mr. Smith died on the 23rd day of September, 1854, in the forty-third year of his age. And as was said by an eminent writer on the death of Sir Robert Peel, "the falling of the column revealed the extent of the space it had occupied."


HENRY WELLS.


His Early Education .- Enters the American Army in 1812 .- Occupies Fort Erie .- Description of the Fort .- Battle of Fort Erie .- Narrow Escape of Wells .- Re- turning Home .- Commences the Study of Law with Vincent Matthews .- Called to the Bar .- John B. Skinner .- Commences Practice at Bath .- Character as a Lawyer .- Defends a Man for Shooting a Hog .- Pathetic Speech of Defendant's Attorney to the Jury on the Cruel Manner in which the Hog was Shot .- Singular Place where the Hog Received his Mortal Wound .- Defends a Lady for Breach of Promise .- Singular Nature of the Case .- Makes a Fortunate Discovery, and Wins the Case for the Lady .- Appointed District-Attorney .- Engaged in the Great Case of the People v. Douglass .- Description of the Trial .- The Conclu- sion .- The New Trial .- Circumstantial Evidence .- Removes to Penn Yan .- Continues his Practice There .- Elected a Justice of the Supreme Court .- Char- acter as a Judge .- Samuel H. Wells .- Death of his Whole Family .- His Own Death .- Death of Judge Wells .- General Character.


HENRY WELLS was born at Kinderhook, October 13, 1794. His father, Dr. Benjamin Wells, was a highly respectable physician and surgeon. He was educated in the City of New York, and commenced his private practice there, but after a few years he re- moved to the County of Columbia. At the commence- ment of the Revolutionary war, he entered the Con- tinental army as surgeon. During the occupation of New York city by the Americans, he was connected with the military family of Major-General Putman. He was afterwards promoted to the position of sur- geon on the staff of Washington, where he served two years. At the close of the war, he returned to Kinder- hook and resumed his practice. At length, attracted by the glowing descriptions which were given of west- ern New York, he was induced to visit that distant region. Finding the reality equal to the description, he selected a place of great natural beauty, on the banks of the Crooked Lake for a residence. This was


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in the town of Wayne, Steuben County. Returning to Kinderhook, he formed a colony of his friends, and removed to "their new home in the west." At this place, Henry spent his boyhood days, excepting the time in which he was absent acquiring his education. At a very early age, he exhibited a thoughtful, intelli- gent mind, a love of study and investigation ; his father, therefore, determined to give him the advant- . age of a good education. Accordingly, he was sent to a select school for boys, which was taught in his father's neighborhood, by a Presbyterian clergyman, who was an excellent English and classical scholar. Under the instruction of this gentleman, he made great proficiency, which encouraged his father to give him better advantages. Accordingly, on attaining his fourteenth year, Henry was sent to the Kinderhook Seminary, then one of the most celebrated institutions of learning in the State. Here he remained until he was eighteen years of age, when, owing to the delicate condition of his health, he returned home, where he resided until the spring of 1814. Dr. Wells had now retired from practice, turning his attention to the cul- tivation of a large farm. Under the advice of his father, Henry engaged in such labor upon the farm as his health would permit. His leisure hours were de- voted to a review of his studies, and to a critical read- ing of the English classics. War with England was then raging; young Wells soon caught the martial spirit which everywhere pervaded the State, and he determined to enter the service of his country. In the spring of 1814, the war spirit became intensified by rumors of invasion from the British, which were rife throughout the State, partly founded on conjecture, and partly on reliable information. The whole western and northern frontiers were in a state of wild excite- ment and alarm. Governor Tompkins prepared to meet all threatened danger with patriotic activity, which inspired confidence in the people, while it gave the Empire State the proud distinction of being fore-


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most in sustaining the patriotic Madison in his stern grapple with the invaders of our country. Troops were rapidly raised, perfected in military discipline, hurried to the field, and everywhere the roll of the drum called the patriot to duty. Early in the spring of 1814, a company was recruited in the county of Steuben; and wascommanded by Captain John Ken- nedy, of Bath.


Among the first who enlisted into this company was young Wells. He was elected sergeant, and im- mediately commenced the work of perfecting himself in military knowledge and drill. He soon became a good tactician, and was promoted to the rank of en- sign. His company was attached to Colonel Hop- kins's regiment of infantry, and early in the following July, took the field at Black Rock. After frequent skirmishes with the enemy, the regiment crossed Niag- ara river, and joined the American forces then holding Fort Erie and the works surrounding it.


This once powerful and important fortress stands on the Canada side of the Niagara, nearly opposite Buffalo. Its gloomy walls, dilapidated bastions, and ruined casemates stand out grim and solitary against the western sky, telling of sieges, battles, attacks and repulses, of death "in the imminent deadly breach," and finally of all "the pomp and circumstance of war," with its havoc and destruction. Many a vanished year has swept over those walls, black with the miner's blast upon their hights. Heroes have trod the spot, and on their ashes the careless visitor now treads.


In this fortress, and in the works about it, on the 16th day of September, 1814, lay the American army. Below, and partly surrounding it, were the British forces, who, at an earlier period of the war, had been driven from Fort Erie by the Americans. Deter- mined to regain possession of so important a work, and annoyed by the Stars and Stripes floating de-


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fiantly over their own dominion, they had fiercely besieged it for a long time.


Day after day their shot and shell rained upon the fort, while their works and parallels were gradu- ally approaching it. Nearer, and nearer, they ad- vanced, guided by their skillful engineers, and now their commander confidently believed that within a few short hours, he would re-enter Fort Erie with his victorious columns. But on the morning of the 17th of September, the Americans suddenly moved from their work, fell like a thunder clap upon their be- siegers, and after a short but sanguinary battle drove them from their works to the plain of Chippewa, with a heavy loss in killed, wounded and prisoners.


In this battle young Wells exhibited the cool intrepidity of a veteran. As his regiment entered a piece of woods in front of the British, they opened a murderous fire of grape and canister upon it, and many of his comrades fell by his side; but the enthu- siasm of the Americans could not be checked, and over the dead and dying, they rushed to victory. As they were entering the works of the enemy, a British ser- geant discharged his musket at young Wells; the bullet grazed his side, and mortally wounded a young soldier who was partly in his rear. The next mo- ment the sergeant was captured, and would have deen despatched on the spot, had not Wells inter- fered and saved his life.


Soon after the battle of the 17th of September, Lieutenant Wells moved with his regiment across the river to Black Rock. He continued in the service until the middle of the following November, when he resigned and returned to his home.


While a student at Kinderhook, he decided upon entering the legal profession, and soon after retiring from the service, he entered the office of Vincent Matthews, at Bath, as a student at law.


Dr. Wells had made the acquaintance of this em- inent lawyer in the city of New York, while the


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latter was pursuing his legal studies in the office of Col. Troupe of that city. A warm friendship com- menced between them, which continued after they had become residents of Steuben county, and through life. The ingenuous character and respectful manner of Henry, his candor, intelligence and general in- formation, early attracted the attention of Mr. Matthews, and he readily received the young man into his office, extending to him every advantage in his power for the prosecution of his studies. Mr. Wells became at once a close and diligent student, reading, not simply to prepare for examination, but for the purpose of enabling himself to discharge with honor the high and responsible duties of a counselor at law. He adopted the maxim of Lord Bacon : "It matters not that you read much or that you read constantly, unless you read with understanding and with memory." It was not long before the fruit of this devotion to study began to exhibit itself. "After he had been in my office a year and a half," said Mr. Matthews-speaking of young Wells- "he could draw a strong and practicable brief, with co- pious and correct reference to authorities."


This attention to his legal education did not cause him to neglect his classical and literary studies. Through life he was a close student of England's great poets. He particularly admired the healthy honesty and manliness developed in the style and sentiment of Pope; the dignified and solemn utter- ances of Young; that noblest monument of human genius, Paradise Lost; the intuitive sagacity, the keen appreciation of life, and vivid picture of the passions, which appear on the page of Shakespeare ; the freshness, vigor, and beauty of a rural life, which the pen of Thomson describes. Indeed, there is no- thing, even in the Bucolics or the Georgics of Virgil, which is as redolent of the fragrance, of the forest and the field, or which brings home more forcibly the as-


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pects of pastoral life, and the vicissitudes of the changing year, than Thomson's Seasons.


From the deep and splendid philosophy of the law, its great liberating and enlightening means of human action, Mr. Wells turned to such works as these, and drank in the inspirations of their authors. Those who knew him best, those who saw most of him in his hours of relaxation from professional and ju- dicial labor, or those who watched him in that fatal decline, while yielding with dignity to the last enemy, as a hero yields to a conquering foe, will remember what interest and grace, the study of such works lent to his conversation. And yet he was apparently a man of literal and prosaic character.


There is often in the heart of the cold, the callous and unimpassioned, a place where beautiful thoughts and bright images, invested with colors which the passions throw over them-sympathies with suffering virtue- touches of tenderness, and even poetic feelings, live and glow, unknown to all the world, just as a beau- tiful and brilliant gem sometimes flashes its solitary radiance in a cold and distant chamber, clear, spark- ling, but almost unknown.


After remaining in the office of General Matthews three years, Mr. Wells was fully prepared for his ex- amination ; and in October, 1817, he was called to the bar. Hon. John B. Skinner, of Buffalo, was also in the same class, and admitted at the same time. Three years after their commission as attorneys, these gen- tlemen were in the counselors' class together, and both admitted to the degree of counselor. Subse- quently, they often met at the bar as opponents, while they were often associated in the trial of causes. In the commencement of their professional life, a mutual respect was engendered, which increased as years wore away.


After a long and brilliant professional career, Mr. Skinner has retired from the bar, to the enjoyment of the comforts and happiness of domestic life.


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Immediately after his admission, Mr. Wells opened an office at Bath, and commenced practice. While a student, he made many friends among the leading business men of Steuben county, who held his probity and abilities in high esteem. They now gave him their patronage and influence. With such aid, joined to untiring industry, he soon gained a respectable and remunerative practice.


In June, 1818, he married Miss Margaret Haight, a daughter of General S. S. Haight, then a prominent member of the Steuben bar. Much domestic happi- ness resulted from this union; and that attachment which commenced in the early summer of life, con- tinued undiminished amid the sober scenes of autumn and the approach of winter.


In the commencement of his practice, Judge Wells often appeared in justices' courts, where he frequently met lawyers of ability and high standing; although these courts were, as they are now, a kind of practicing school for young lawyers, the skirmish grounds for older ones. He met, in these tribunals, every variety of mind and ability.


Some years before his death, he related in the pres- ence of the writer, a scene which occurred in one of those courts : "An action had been brought before a justice, by a man against his neighbor for shooting a hog, the property of the plaintiff. Mr. Wells appeared for the defendant. For the plaintiff there appeared a fa- mous pettifogger, noted for his pompous eloquence, his brazen impudence, his sharp and cunning tact, and his want of everything like a systematic knowledge of the law. A jury was impanneled ; the case was opened to them by the plaintiff's counsel in the fol- lowing pathetic and moving language: "Gentlemen of the jury, you are impanneled here to try a cause of the vastest importance to this community. The defendant has been guilty of a crime and cruelty which the annals of crime has no equal, which shows him to be the most carniferous wretch that walks this


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celestial foot-ball. Gentlemen, when I think of it, I can hardly help gushing out in a flood of tears and crying out with one of the Apostles, 'Oh, that my head was waters, and mine eyes a fountain of tears !' While this poor unoffending hog, whose only bad trait was an innocent waggishness, and that confined to one of his most extreme extremities, was quietly nipping the miserable grass that grew in this defendant's wretched pasture, thinking of no harm, this cruel monster, armed with a deadly gun loaded to the muz- zle with missiles of death, stealthily approaches his poor unconscious victim, and discharged the whole deadly contents of that still deadlier gun right into his solar system, who with one fearful squeal of agony, fell dead on the ground !"


One of the earliest cases which Judge Wells con- ducted in the Supreme Court, was an action brought by one Breed, a widower with several children, against a wealthy, middle-aged widow lady for breach of proraise. The novelty of the action, and the position which the parties occupied in the community, attracted much attention to the suit. The plaintiff was a near neighbor of the defendant, and was often employed by her in various matters. He alleged that she had frequently promised to marry him; that after some delay the day for the happy event was fixed, which for various reasons, both parties desired should be kept secret. The day came, but the lady refused to perform her part of the contract; and the disconsolate lover of forty-five was left to exclaim with the old poet, "Frailty, thy name is woman."




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