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 14
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In the early part of his administration, the ques- tion of the extension of slavery to the territory to be
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acquired from Mexico, began to be agitated ; and sanc- tioned by him resolutions were adopted in the Legis- lature instructing the Senators and Representatives from this State in Congress, to vote for the prohibition of slavery in such territory, thus evincing his views on a question, the settlement of which, subsequently, led to such a fearful arbitrament.
"His views with regard to the war with Mexico, his refusal to make his appointments in accordance with the wishes of Mr. Seward and his friends, were not satisfactory to one branch of the Whig party, and led to considerable feeling, though no open rupture took place. He did not desire a renomination ; con- sequently the harmony of the party was not disturbed by any considerations merely personal to himself,". though the feud between the Wooly Heads and the Silver Grays continued until the great Whig party became a thing of the past.
The popular manners of Governor Young, his en- tire freedom from all affected dignity and self-import- ance, the perfect ease with which he received all those who approached him, his possession of those traits which command respect, rendered him personally popular. In his character there was a lively vein of wit and humor, which in public or private life ren- dered him attractive ; and he knew how to pass "from grave to gay, from lively to severe," with a facility rarely met.
Among the amusing incidents of his gubernatorial life, which he sometimes related with infinite relish, was the following :
One morning, while busily engaged in his room, a person was announced as Mr. -, from Livingston county. The governor did not recognize the name, but, coming from Livingston county, he was ad- mitted ; and a tall, gaunt, queer, but somewhat self- possessed individual entered the room.
"Good-morning, Mr .- I beg pardon - Governor
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Young ; glad to see you ; how's your health now, and your family ?" said the man.
"Good morning, sir," said the governor, look- ing very inquisitively at the queer specimen before him.
"You don't know me, I see. Well, governor, I'm the chap you saved from State prison for being mixed up in that confounded affair about the build- ings going up one night. My gracious ! what a speech you made for me. The way you bored for water was awful. I felt bad, but I didn't cry until after the jury did. You got me off slick as grease. Hard work ; got good pay, though, and "-
"My good friend," said the governor, interrupting him, "I am glad that you remember my services in your behalf ; but as I am in great haste, you must ex- cuse me now."
" But, Governor, this is a business call, and busi- ness is business," said the fellow.
"Well, what is your business ?" said Mr. Young, growing impatient.
"Well, you see, I'm in for it again-I'm indicted for another affair, a little worse than the first one ; pretty sure to go up unless I have help ; and as I'm out on bail, I've come to you again to assist me ;- al- ways stick to those that do well by me," said the fellow.
"But I am not practicing law now, and I cannot help you," said the governor.
"I understand, but you see as you lay over all the judges in the State now, and I am going to stand a conviction, cause I can't help it, I'spose ; and the judge will send me to State prison, and now, Govern- or, the joke comes in ; when I am fairly in (I shan't mind that), you just come down with your pardon, and lay out that judge, and set the district-at- torney whizzing. Don't you see, Mr .- I beg pardon, Governor-that you can save me this time a good deal easier than you did before, and I guess for less
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money, but don't wait long with your pardon," said the fellow.
Mr. Young, greatly amused at the man's sincerity and pertinacity, assured him, that if he was con- victed, he would look over the evidence, and see how the case appeared, and then he dismissed his visitor.
In the Whig National Convention of 1848, Mr. Young was a warm friend of General Taylor, but the distinguished public services, captivating and profound qualities of Mr. Clay, caused him to prefer that great statesman for president; and when, in 1849, Governor Young desired to be appointed assistant treasurer in the city of New York, a position then held by ex-Governor Bouck, he was opposed by the leaders of the Radical Whigs, his preference for Mr. Clay to General Taylor being made as a reason why he should not be appointed to any office under the new administration. But the man who had been so long familiar with the detail of politics, and who under- stood so well the intrigues of cabinets, was a match for his powerful opponents ; and in July, 1849, he was appointed to the important office he sought. This was the last public station he ever occupied. He died in the city of New York in April, 1852, in the fiftieth year of his age.
Mrs. Young and four children survive him. The former resides at Geneseo, N. Y., respected and esteemed for many distinguishing virtues and ami- able traits of character.
Thus we have seen John Young, the artificer of his own fortune, the solitary and humble student, the teacher, lawyer, legislator, and, finally, governor of the Empire State. Often eulogized and vituperated, but in all these phases of his life successful. At times displaying powers of oratory of which he seemed unconscious, and exhibiting legislative abil- ities that made him the brilliant leader of his party, the chieftain who restored its fallen fortunes ; and if he was hated by many, he was admired by more.
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As governor, his administration may not be cele- brated for any striking policy, nor may it dazzle us by brilliant contrasts between its good and bad qual- ities ; between the vicisitudes of prosperous and ad- verse policies ; but apart from the censure of its en- emies, and the commendations of its friends, the im- partial historian will accord to it as much ability and eminence as had been awarded to the administra- tions of most of his predecessors. As has been well said, "the light which radiates from the life of a great and patriotic statesman is often dimmed by the mists which party conflict throws around it. But the blast which strikes him down, purifies the atmos- phere which surrounded him in life, and it shines forth in bright examples and well earned renown.
GEORGE HOSMER.
His Ancestry .- A Son of Dr. Timothy Hosmer .- Oliver Phelps .- Description of Western New York in Early Days .- First Court in Ontario County .- The Law- yers in Attendance .-- The Trial .- Amusing Charge of Judge Timothy Hosmer to the Jury .- Highly Gratifying to the Ladies .- George Hosmer's Early Education. -Preparation for the Bar .- Admitted to Practice .- Opens Law Office at Avon .- Moses Hayden .- Hosmer Appointed District-Attorney .- Successful Practice of the Young Advocate .- Engaged in a Great Murder Trial at Batavia .- Defends the Murderers .- Singular Verdict .- Uncertainty of the Jury System .- Remarks of Luther C. Peck Concerning Petit Jurors .- Mr. Hosmer as an Advocate and Speaker .- Singular Defense of a Young Girl at Batavia .- Retained for the Plain- tiff in the Great Case of Pratt v. Price .- John C. Spencer Opposed .- Speech of Mr. Hosmer .- Charles M. Lee .- John Dickson .- Judge Gardner .- His Charac- ter .- Hosmer Engaged in the Morgan Trials .- Defends Roberts, Editor of the Craftsman .- Hosmer's Speech to the Jury on Behalf of a Very Poor Client .- Money in the Jury Box .- Elected to the Legislature .- His Career in the Assem- blv .- Characteristics .- Death.
THE name of George Hosmer was for many years identified with the legal interests of western New York, and his career at the bar has passed into its history. He was a lawyer of eminent abilities, pos- sessing many solid and shining acquirements, a mind naturally strong and comprehensive, improved by the usual classical studies, a critical acquaintance with English belles lettres, and a laborious and systematic study of the common and statute law. Hence, the high position which he attained in his profession was the legitimate and proper reward of real merit, of un- tiring industry, diligent research, and not the result of any adventitious circumstances. The wreath which he wore was not won in contests with plebeian com- petitors, for it was his fortune to commence and con- tinue his professional struggles with those gigantic in- tellects which composed the bar of western New
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York ; noble and generous rivals, who yielded him with cheerfulness and pride the honors he had achieved.
George Hosmer was born in Farmington, Conn., August 30th, 1781. He was a descendant of Colonel Thomas Hosmer, of Hawkworth, England, a strong and vigorous supporter of Cromwell ; sustaining him with undaunted valor in the field, and aiding in those deep laid ambitious schemes which elevated that sin- gular man to the position of lord protector of Eng- land, and upholding the protectorate with all his power and influence. When at length the sun of Cromwell descended forever, and Charles II. returned "to his own again," Colonel Hosmer, with the fugi- tive regicides, Goff, Walley and Dixwell, was com- pelled to leave England and secure an asylum from royal vengeance in the wilds of New England. He settled at Middletown, Connecticut.
George was a nephew of Hon. Titus Hosmer, of Middletown, a distinguished scholar, statesman, judge and lawyer. The elegant poem or elegy on his death, written by the pen of Joel Barlow, will long be remembered as a beautiful and scholarly produc- tion. The father of the subject of this sketch was Timothy Hosmer, one of the earliest settlers of On- tario county, a man of liberal education, a physician by profession, and a true gentleman of the old school.
At the commencement of the revolutionary war, he entered the Continental army as surgeon of a Connec- ticut regiment, in which capacity he served during the war, with the exception of two years, during which time he served as surgeon on the staff of Washing- ton. He was present at the battles of Monmouth, White Plains, Brandywine, Princeton and Trenton. ' At the execution of Andre he was one of the attend- . ing surgeons, and no event which he witnessed dur- ing the progress of the whole war made so deep and -. lasting an impression on his mind as did the death of that elegant and accomplished soldier. In after
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years, while relating the circumstances of this execu- tion, he was " often beguiled of his tears."
In October, 1798, he was appointed by Governor George Clinton, first judge of Ontario county. Oliver Phelps, with whom he came to western New York, had previously been appointed to that office, but such was the condition of the county that no courts were held or organized by Judge Phelps, and his many important business relations compelled him to resign, and Dr. Hosmer was appointed in his place. Mr. Phelps was a native of Windsor, Connecticut, and with Nathaniel Gorham was one of the earliest landholders in the then far off Genesee country. He was active, high-minded, enterprising and intelli- gent. When he first visited western New York, that now highly cultivated and splendid section of the State was an unbroken wilderness, save the few settle- ments or openings made by the Indians. But the sheen of its beautiful lakes and rivers, the legendary hunting grounds of the red man, and the natural beauty of the country, had many charms for the in- trepid pioneer, and as if by prophetic vision he saw something of its future greatness, though he could not realize that within a period of time less than a cen- tury it would attain a position in civilization, wealth and refinement equal to realms known in history for ages.
Mr. Phelps first visited Geneva, than called Kane- desaga, in the year 1788. In the spring of 1789, under his auspices, a large company from Connecticut and Massachusetts commenced a settlement in the country of the Genesee; after encountering many hardships and adjusting many difficulties with rival companies and the Indians, a settlement was permanently com- menced. Canandaigua, or Canadargua, as it was first called, was the headquarters of Mr. Phelps. The beautiful location of that village, or trading post as it was then, had been previously described by tourists and adventurers who had occasionally found their
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way to this distant country. As early as 1765, a traveler by the name of Kirtland, visited Kanadesaga, or Geneva, and in a letter to Sir William Johnson, under whose auspices the journey was undertaken, he bitterly complained of the fare he found.
"Could I have plenty of fresh venison and bear's flesh," he said, "I could do without bread, ye staff of life ; but to have little of either, and ye most part of it rotten, I think may be called coarse food."
In another part of this letter, he says he finds "nothing but ye Indians here." And this only a hundred and four years ago.
Soon after the settlements under Phelps and Gor- ham were commenced, several distinguished tourists from the Atlantic cities and from Europe, visited western New York, and the poetic description which they gave of the country attracted great attention. The Gentleman's Magazine, a well known quarterly of much literary merit, then published in London, contains a letter written from Geneva in 1790, by a young nobleman, who made the tour of "these west- ern wilds," as he called the country.
"The scenery about Kanadesaga," he says, "is beautiful and as enchanting as any Italian landscape, or the shores of classic seas, while the whole country about Canandaigua is as enchanting as the Vale of Tempe, and as beautiful as the garden of Hesperides. There are, however, but one or two families of whites at either place, to enjoy the Eden-like beauties of the situation."
The county of Ontario was set off from Montgomery in the year 1789, and included all the territory known as the Geneeee country, and now known as western New York. Mr. Phelps was elected to Congress from Ontario county in the year 1803. He served in that body two years. After retiring from Congress, he em- barked in certain speculations, which resulted disas- trously, and he became greatly embarrassed, notwith- standing that his wealth was once estimated at a mill-
12
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ion dollars. He died at Canandaigua in the year 1803. The names of Oliver Phelps and Nathaniel Gorham are indelibly inscribed in the history of western New York ; while their descendants are known among the most respectable and distinguished citizens of the State.
Judge Hosmer presided at the first county court ever held in Ontario county. His associates were Charles Williamson and Enos Boughton. This court was held at Nathaniel Sanborn's hotel, in Canandaigua, November, 1794. Among the lawyers present were Vincent Mathews, James Wadsworth, John Wickham, and Thomas Morris. There were several causes on the calendar, but no jury cases were tried-the prin- cipal business being the organization of the court. The next term was held in June, 1795. At this court, occurred the first jury trial which ever took place west of Herkimer county. It was the trial of a man in- dicted for stealing a cow-bell. The culprit was de- fended by Vincent Mathews and Peter B. Porter ; while the prosecution was conducted by Nathaniel W. Howell, afterwards Judge Howell. The cause was tried with all the adherence to strict legal rules, with all the conformity to great principles of justice, which characterizes legal proceedings in the most gorgeous temple of justice, or under the domes where law, in scholastic robes, has been for ages dispensed. After a close, legal contest, and an able charge to the jury from Judge Hosmer, the prisoner was acquitted. The first Circuit Court, and Court of Oyer and Terminer, held west of Montgomery county, took place at Pat- terson's tavern, Geneva, June, 1793. John Sloss Ho- bert, one of the three justices of the Supreme Court, appointed after the organization of the judiciary in 1777, presided. A grand jury was impanneled and charged, but no indictments were found.
Judge Hosmer was not bred to the bar, yet his strong, practical, good sense, his finished education, extensive reading, his love of justice and equity, ren- dered him well qualified for his judicial position, and
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his decisions were always acceptable to the bar and the public. The following anecdote illustrates his natural love of justice :
During one of the terms of his court, a woman was brought to the bar for trial, on an indictment charging her with a violent assault and battery upon a man by the name of Scrope. The evidence developed the fact, that Scrope had intruded himself into the kitchen of the lady, and grossly insulted her. Seizing an old fashioned splint broom, a formidable weapon, by the way, she drove him from the house, inflicting several very severe blows upon his head with the broom, which considerably injured him.
The district-attorney, having proved the assault and the injury resulting from it, rested his case, con- fident that the woman would be convicted. Her counsel seemed to take this view of the case, and made but little effort to save her. Then came the charge of the judge ; he was, as we have seen, a gen- tleman of the olden time, too refined and chivalrous to see a lady convicted under such circumstances ; especially as he believed the acts of the complain- ant were a perfect justification for the assault.
" Gentlemen of the jury," said he, "the evidence in this case, clearly shows that an assault and battery has been committed upon this man, and unless there is some justification for the assault, you must convict the defendant. But, gentlemen, in my view, there are extenuating circumstances in the case, which you must take into consideration. Among which, are the sex of the defendant, the place where the assault was committed, and the circumstances which led to the as- sault. Gentlemen, bear in mind that the kitchen is a woman's empire, the broomstick a legalized, and there- fore legitimate weapon, her honor the corner-stone of society, nay, its superstructure. The wretch who in- vades her empire and there wantonly insults her, should never complain if quick, heavy, repeated blows given with her proper weapon should in fury descend upon
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his head. If he escapes with his life, he should make no other demonstration than thanking God for it. But when he goes further, when, as in this case, he asks redress from a jury ; if there is a juror in the box who has a wife, mother, daughter, sister, or female friend of any kind, that cannot see in the provocation a jus- tification of this act, and of the whole act, his name ought to be stricken from the jury box forever. Go out, gentlemen, and return with such a verdict as will not, when you go to your homes, bring upon you the condemnation of every virtuous woman."
This charge, although not entirely balanced by strict legal rules, rendered the judge very popular, especially with the ladies.
Having finished his classical education, George Hosmer entered the office of Hon. Nathaniel W. Howell, of Canandaigua, as a student at law. Judge Howell was then a prominent lawyer and jurist, whose life appears in another part of these sketches. Mr. Hosmer continued with Judge H. until he com- pleted his legal studies, when he was duly admitted to the bar. He commenced practice at Canandaigua.
The first cause in which he was engaged, was tried before his father, who, during the trial, fre- quently forgetting the dignity which his son had ac- quired, would frequently say to him, "George, yon are wrong ; " "George, see here, you misapprehend the point ;" and as the young lawyer became some- what persistent, "George, sit down," said the judge, and he was obeyed.
After practicing at Canandaigua until the year 1808, Mr. Hosmer moved to Avon, opened an office, and commenced practice at that place, meeting with much success. After the commencement of the war with England, he accepted the position of aid to Gen- eral Hall, and joined the American army on the west- ern frontier.
After serving some time in the army, Mr. Hosmer's health becoming impaired, he resigned his commission
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and returned to the practice of his profession, in which he rapidly arose to eminence.
In the year 1820, the county of Livingston was erected. Hon. Moses Hayden was immediately ap- pointed first judge of the new county, and Mr. Hos- mer district-attorney. At that period, district-at- torneys were appointed by the Court of Common Pleas, and the most experienced and able members of the bar were always selected for that office. The position tendered to Mr. Hosmer in this instance, was highly complimentary to him as an advocate. He continued to discharge the duties of his office with marked ability untill 1824, when he was succeeded by the late Orlando Hastings, of Rochester, but who then resided in Genesee, and whose life appears in this work.
Mr. Hosmer was now in the zenith of his profes- sional prosperity and success. He appeared in all the courts of western New York and was recognized as an able and successful lawyer, and an ornament to the bar. One of the earliest cases in which he ap- peared as counsel, was that of the People against the two Robertses-father and son-charged with the murder of J. A. Davis, a hotel keeper at Leroy. This trial took place at Batavia, and created great in- terest. The defense of Mr. Hosmer was considered able and ingenious, and won for him the highest com- mendations. The father was acquitted, but the son convicted.
In alluding to this trial in after years, Mr. Hosmer remarked that the result of this trial convinced him of the doubts and uncertainty of trials by jury, for, in this case, said he, "they hung the innocent man and acquitted the guilty one."
The Hon. Luther C. Peck, now one of the oldest and most distinguished lawyers of the Livingston bar, once remarked, "if there is anything beyond the com- prehension of Deity, it is the action and decision of a petit jury."
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De Tocqueville, the eminent French jurist and author, in commenting upon our jury system, while he admits the uncertainty of it, says :
"The jury contributes most powerfully to form the judgment, and to increase the natural intelligence of the American people. It may be regarded as a gratuitous public school, ever open, in which the juror learns to exercise his rights, enters into commu- nication with those learned in the law, and thereby becomes practically acquainted with the laws of the country, which are brought within the reach of his ca- pacity, by the efforts of the bar and the advice of the judge."
As an advocate, Mr. Hosmer was eminently suc- cessful. His manner before a jury was impressive, and his language convincing. He was sometimes vehement, yet his vehemence was tempered to the occasion. Before the court alone, in the argument of purely legal questions, he was calm, deliberate, self- possessed, and always had his case fully and thor- oughly prepared ; hence, he never failed to commend and retain the attention of the judge.
As a speaker in the popular assembly, he was al- ways a favorite with the people, always drew their at- tention and attendance whenever he appeared before them. The strong sympathies of his nature were ever enlisted for his client, and, as was ever remarked of him, "Hosmer always thinks his own client in the right." He often undertook the defense of persons charged with crime, prompted alone by his sympathy. On one occasion, while attending court at Batavia, he volun- teered to defend a young girl who had been indicted for grand larceny, after the lawyer whom the court had appointed to defend her advised a plea of guilty. He was led to believe by the looks and manners of the girl that she was not really guilty. She had all the appearance of artless innocence, and when her lawyer proposed to enter her plea of guilt, there was a look about her that denied the plea.
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"I cannot believe," said Hosmer to the court, while begging for a few moments' conversation with the prisoner before the plea was entered, "that such a casket contains corruption ;" and after a short in- terview with the girl and her friends, he determined to defend her. She was charged with stealing silver spoons, and other silver-ware. The daughter of a poor and widowed mother, who lived at a distance, she had been bound to a wretch who cruelly misused her, overtaxing her strength, almost beyond her en- durance, by excessive labor and unremitting toil. Her poor heart yearned for the humble home, the gentle and tender care of that mother who had often soothed the sorrows of her childhood, and clandestinely leaving her master, she sought her home.
Alone and on foot she commenced her weary jour- ney. But her flight was soon discovered ; the silver- ware was missed, she was pursued, overtaken, and brought back to her master. A part of the property was found secreted at the side of the road over which she had traveled. Such was the evidence elicited on the trial, on which the public prosecutor confidently expected the conviction of the poor girl. The situa- tion of the prisoner, and all her sufferings, were adroitly drawn out, the character of her master placed before the jury, the absence of any proof that she had taken the property was strongly dwelt upon. Her attempted flight to her mother and its course, was touchingly described.
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