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 15

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 15


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"She was not fleeing to conceal her guilt, as the public prosecutor contends," said her counsel; "she was escaping from oppression, from a cruel and bitter fate, from a wretch whose heart is harder than the nether millstone, and who would turn the tears of the orphan into money. It is true that this paltry treasure was found near where this girl had passed, and this is all the account they can give of the matter. Gentlemen, until the prosecution prove that this girl placed it there, you must not convict her; nay, you will not


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convict her, and the God of the fatherless will approve the verdict which will snatch this unsheltered lamb from a fate worse than death, and restore her to that mother whose life almost depends upon your deci- sion."


The jury retired under the charge of the judge, and soon returned with a verdict of acquittal, which was received by the spectators and bar with great applause, notwithstanding the efforts of the court to repress it.


Among the many important civil cases in which Hosmer was retained, was that of Abner Pratt against Peter Price. Mr. Pratt was a lawyer practicing at Rush, in the county of Monroe, and Mr. Price was a judge of the Common Pleas of that county, and a man of considerable political and social standing. A bitter feud existed between these men, and upon a certain occasion, Judge Price said to a client of Mr. Pratt's, "Yes, Pratt will collect your money, and then steal it, as he has often done for others," or words to that effect.


Upon these words an action for defamation was com- menced against the judge, which came on to be tried at a circuit court held at Rochester, April 28th, 1834, Hon. Addison Gardner, then one of the circuit judges, presiding. Mr. Hosmer appeared for the plaintiff ; he was ably assisted on the trial by Hon. E. Darwin Smith, then a young and promising lawyer of the Mon- roe bar, residing at Rochester, now and for many years a justice of the Supreme Court for the seventh ju- dicial district. Judge Price was defended by Hon. John C. Spencer, of Canandaigua, Charles M. Lee, of Rochester, and John Dixon, of Bloomfield. The high position of the parties, the hostility and bitter animosities which this quarrel engendered, the ma- lignity of the words complained of, the ingenuity and ability of the defense, imparted a deep interest to the cause. Mr. Hosmer's address to the jury was not surpassed, even by the grand and majestic ora-


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tory of the strong and gifted Spencer, who threw the whole power of his great mind into the contest. In this trial there was a collision of mind with mind, seldom witnessed at the bar. But Hosmer's position and logic could not be overthrown.


After a clear, learned and impartial charge from Judge Gardner, the jury retired, and returned into court with the verdict of one thousand dollars for the plaintiff.


This was one of the heaviest verdicts ever given in an action of slander, in the county of Monroe. Mr. Pratt subsequently removed to Rochester, was ap- pointed District-Attorney of Monroe county, after the expiration of his official term, removed to Michigan, was appointed judge of the Supreme Court of that State, and died while in the discharge of the duties of that office. Judge Price died some years after the trial. And thus the grave has closed over the parties litigant in that suit; all the contesting lawyers, except Judge Smith, and most of the jurymen. How short and earnest are the strifes, the sorrows and the joys of life ! Well and truthfully has the beau- tiful and sublime poetry of the Bible compared the whole career of man to "the path of an arrow," which is immediately closed behind it.


The presiding judge still survives. Having at- tained the highest professional, judicial and polit- ical honors of the State, he retired to private life, dis- tinguished for his many virtues, a stainless Christian character, eminent learning and abilities, reposing in peace, after duties well done, energies, thought and will tranquilized by submission to the Giver of all Good.


George Hosmer was one of the counsel engaged with Hon. Ebenezer Griffin, in the defense of the Morgan abducters, tried before Hon. Enos T. Throop, at Canandaigua, in the year 1826. He was a Mason, and during all the terrible crusade against the mem-


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bers of that order, he was their intrepid defender and eloquent champion.


Soon after the trial of the Morgan abducters, he was retained to defend E. J. Roberts, then the editor of the Craftsman, a Masonic journal, who was in- dicted for having published a libel. The interest felt in this case extended throughout the State. All the bitter antagonisms of the day entered into it. Such was the nature of the alleged libel, that in striking down Roberts, its author, Masonry itself would be in a measure prostrated, and, of course, this state of things engendered a fierce contest.


The great legal abilities of Mr. Spencer were again put in requisition, subservient to Anti-Masonry. Af- ter a long and closely contested trial, Roberts was ac- quitted. This result added new laurels to Mr. Hos- mer's reputation as a lawyer, while it gratified his dis- like to the Anti-Masonic party.


He was once called upon to defend a very poor man against an oppressive suit brought by an over- bearing and wealthy citizen, not particularly distin- guished for ability or attainments, and who believed that money was more powerful than either. The counsel had reason to believe that some of the jury had heard the ring of the plaintiff's dollars, in a way that would tell on their verdict, and he administered a most withering rebuke against the use of money as controlling juries.


" Gentlemen," said he, "I once believed that the jury box was a sacred place. I know it was so once ; but I fear that it is now sometimes desecrated by the hand of bribery. In this case, though, my client has right and justice on his side, and, as it would seem by the evidence, there should be nothing to deprive him of his rights-that he must succeed in his de- fense ; yet my classic reading has taught me that it was an ass, a miserable jackass, whose panniers were laden with gold, that found its way through the gates of Athens, when an armed and powerful foe could not


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effect an entrance ; and if your verdict is against my client to-day, it will be because the money of a jack- ' ass has found its way to some of your pockets. I al- lude to only a part of the panel before me. Gentle- men, let them be weighed in the balance ; let corrup- tion to-day put on incorruption, and the right will triumph."


The poor man succeeded, and the right did tri- umph. Are not the voice and sarcasm of an Hosmer demanded to administer a wholesome rebuke to juries of this day ? Who shall say that they are not ?


The political arena never afforded any attractions for Mr. Hosmer. He was ambitious, but his ambition was confined entirely to his profession. But in the fall of 1823, he was persuaded to accept the nomina- tion for member of Assembly from Livingston county, which, at that time, elected two members. He was elected, took his seat in the Legislature of 1824, and was honored with the position of chairman of the Ju- diciary Committee. His colleague was Hon. George Smith. This was in many respects one of the most memorable sessions of the Legislature which ever took place in this State.


At this session Silas Wright first appeared before the people as Senator from the then fourth senatorial district, which consisted of nine counties, including the county of St. Lawrence, his own county. Al- though he had been a resident of that county but five years, yet, in the fall of 1823, he was put in nomina- tion for Senator, and triumphantly elected over his opponent, General Moers, of Jefferson county.


Among the important measures proposed in this Legislature, was a bill providing for the choice of presidential electors by the people, who at this time were elected by the Legislature, which, in each presi- dential canvass, met early in November, for the pur- pose of choosing electors for President and Vice-Pres- ident. The bill was introduced as a political move-


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ment, to defeat Mr. C. Crawford, who, with Jackson, Clay, Adams and Calhoun, was a candidate for the presidency. Mr. Crawford, through Mr. Van Buren, was confident of securing the New York electors if they should, as usual, be chosen by the Legislature ; and hence the introduction of the bill allowing the choice of electors by the people. The measure be- came at once very popular ; therefore the friends of Mr. Crawford did not venture an open opposition to it. Mr. Flagg, a warm supporter of Crawford, intro- duced a resolution into the House, favoring the pro- posed new electoral law ; but he annexed conditions to it, which, in certain emergencies, would give the choice of electors to the Legislature. The introduc- tion of Mr. Flagg's resolution let loose the fury of leg- islative warfare, and a contest ensued which had never been equaled in either branch of the Legisla- ture. In the discussion which followed, Mr. Hosmer took an important part. He was a ready, sagacious and eloquent debater, and his clear reasoning powers gave him a high and influential position. He sup- ported Mr. Flagg's resolution, and in March, 1824, delivered his great speech in the House in its favor. It is seldom that a speech on a proposed bill or reso- lution in a legislative body produced the effect which this speech of Mr. Hosmer's did. It was a profound and statesman-like, a calm and philosophic review of the whole great question. Soon after its delivery the vote on the resolution of Mr. Flagg was taken, and the measure sustained by a vote of 76 to 47.


In the Senate, the Electoral bill passed through several amendments. Mr. Wright favored the choice of electors by the people, and introduced a bill into the Senate to that effect ; but his bill was defeated. At length Hon. Edward P. Livingston introduced a resolution postponing the further consideration of the whole matter until the first Monday of the ensuing November, being the day beyond the extra session, when the electors would be chosen by the Legislature.


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This resolution passed the Senate, and gave the State of New York to Mr. Crawford. Mr. Wright and six- teen other Senators voted for this resolution, thereby subjecting themselves to severe and bitter censure. They were immediately characterized as the famous " seventeen Senators."


At the close of his legislative term, Mr. Hosmer returned again to the practice of his profession. De- clining another nomination, he left the political field forever, so far as entertaining any desire for official position.


He died in the 80th year of his age, March, 1861, at Chicago, while visiting his daughter, Mrs. Wells, of that city.


His highly cultivated literary taste and acquire- ments rendered him the life'of a refined and an in- tellectual social circle. He possessed a mental energy which awakened and kindled a like energy in those with whom he conversed. The same love of sarcasm and satire which rendered him a formidable antagon- ist at the bar, tempered by the calm and pleasant amenities of society, rendered his conversation at- tractive, while he possessed the rare qualification of being an excellent listener to the conversation of others, which is often the talisman of fascination.


In his domestic relations, as husband and father, he was happy. Several children survive him, among whom is the distinguished poet and author, W. H. C. Hosmer, known as the Bard of Avon.


WILLIAM M. HAWLEY.


Early Identified with western New York .- Elected a Constable .- Attends Court and Studies Law .- Sent in Pursuit of a Notorious Criminal .- Singular Manner in which the Man is Captured .- Description of the Allegany County Bar .- Hawley's Practice in Justices' Courts .- His Manner of Trying Causes in Those Courts .- Ludicrous Description of one of These Trials .- T. J. Reynolds .- Horse Shedding a Witness .- The Witness in a Close Place .- Mr. Hawley is Admitted to the Bar .- Forms a Partnership with the famous John Baldwin .- Appointed First Judge of Steuben County .- Elected to the State Senate .- His Career as a Senator .- A Delegate to the National Democratic Convention of 1848 .- Descrip- tion of the Convention .- Delegate to the Buffalo Convention in August, 1848 .- His Influence in that Convention .- His Speech .- Co-operates with John Van Buren .- Hawley Joins the Republican Party .- Interview with John Van Buren. -- Active in the Republican Party-Retires from Politics .- Character as a Law- yer and a Citizen .- Death.


WITH the eminent lawyer whose name stands at the head of this sketch, is associated much of the history of Steuben county and western New York ; while the record of self-made men presents few higher triumphs of unassisted energy and exertion, than is exhibited in his life; for, he was in every sense, the architect of his own fortune. It has been truthfully said, that those who, in the commencement of life, are compelled to struggle with difficulties, determined to overcome them, have the key to success in their hands.


The beautiful fable of Antæus, the earthly giant, wrestling with Hercules, the giant of celestial de- scent, illustrates the potency of self-reliance and fear- less determination, in grappling with formidable ob- stacles. When Antæus was in danger of being over- come, he touched the earth, instantly regaining his powers, and finally conquering. Thus with the sub- ject of this sketch ; he entered the battle of life, com-


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pelled to contend with Herculean difficulties, and when, like Antæus, he was sometimes obliged to touch the earth, he sprang again to the contest with renewed energies, which at length gave him the victory.


William M. Hawley was born in the county of Delaware, New York, February 13th, 1802. £


His father was one of the early settlers of that county, a farmer by occupation. His means were limited, and he could afford his children but few advantages for education. Young Hawley very early evinced a desire for knowledge; and the few advantages within his reach were eagerly seized by him, and turned to the best account. In the humble common school to which he was early sent, he made rapid proficiency in reading, writing, and arithmetic, giving some atten- tion to English grammar.


While very young, a friend of his father lent him Plutarch's Lives, which he read, not only with avidity, but understandingly. Through his whole life that great biographer continued to be his favorite author among the ancient writers. A clergyman in Mr. Hawley's neighborhood, who possessed a very good miscellaneous library for the times, observing the boy's love of reading, kindly offered him the use of his books. The offer was joyfully accepted, and from that time he became an industrious student ; every leisure hour being devoted to his books. So retentive was his memory, that once reading a work, he could repeat verbatim, large portions of its con- tents.


While it is true, that the improvement of which the mind is susceptible by culture, is more remark- able in the case of memory, than in any of our facul- ties, yet in a boy of tender age, with few advantages for the culture of this, or any other faculty, a memory like his was truly remarkable; and it is not strange that young Hawley soon gained the reputation of being a boy possessing much intelligence and infor-


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mation. Perseveringly continuing his studies, he at length acquired considerable knowledge of mathe- matics, grammar, rhetoric, and the English classics. He early conceived the thought that he should one day become a lawyer, and this idea was the theme of his ambition, the controlling motive of his life. He continued with his father until he was twenty-one years of age, when, with no fortune, except strong hands, a vigorous constitution, the mental acquire- ments which he possessed, and a determined purpose, he removed to Almond, in the county of Allegany. This event occurred in September, 1828.


As was the custom among the early settlers of western New York, he contracted for a piece of un- cultivated land on credit, and immediately com- menced the work of clearing it for tillage. His intelli- gence and business capacity were soon manifested, and he at once took a respectable position among the people of Almond. In the spring of 1824, he was elected one of the constables of that town. The du- ties of this office were of considerable importance, and required the exercise of some legal knowledge.


Providing himself with the proper books, he soon qualified himself for all the duties of his office. In this manner, he became a kind of legal oracle in the town. At this time, imprisonment for debt had not been abolished, and this relic of barbarism greatly enhanced the duties and responsibilities of constables. Many were the exciting pursuits for criminals and debtors, in which Mr. Hawley engaged.


On one occasion he was directed to arrest a man who had stolen a valuable watch. Several abortive attempts to capture him had been made by other officers, and the services of Hawley were sought.


One afternoon, with a single assistant, he cau- tiously approached the residence of the man, and from a clump of bushes, discovered him as he was en- tering his house. Hastening to the dwelling, the pur- suers entered, but the culprit could nowhere be found,


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although every nook and corner was searched. At length from some cause, the officers mistrusted that their intended prize had betaken himseif to the chim- ney, which was large, and constructed on the primi- tive plan. The weather being warm, there was no fire on the hearth. How to get hold of the man, now be- came the great question. To reach him was impos- sible, and of course, no persuasion would induce him to come down.


Suddenly a thought occurred to Mr. Hawley. He must have a cup of tea, and he politely requested the man's wife to prepare it for him. But she positively declined to do so. "Then, Madam, I shall be obliged to do so myself, for some tea I must and will have," said he, and stationing his assistant outside of the house to prevent an escape, Mr. Hawley commenced making a fire. The woman attempted to prevent him, but taking a formidable pair of hand-cuffs from his pocket, he threatened to place her in limbo, which at once had a quieting effect upon her, and he proceeded to build the fire without further interruption. In a few moments, the smoke began to curl up the chim- ney, while the fire crackled on the hearth. Soon a sepulchral voice was heard from the region above, ex- claiming :


"Hawley, for God's sake what are you doing down there ?"


"Getting tea, and I want you to come down and take some with me," was the reply.


"I don't want any of your tea ; it ain't the kind I use, and I shan't come down," said the man.


"I rather think you will take a little of it, this time, and so I'll have the kettle boiling in a few mo- ments," said the officer, throwing some light wood on the fire, which caused the flames to dart up the chimney.


In a moment a scrambling noise was heard, sounding as though the thief was endeavoring to gain the top of the chimney, but in the next instant he 13


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dropped from his hiding place, and rolled at the fect of Mr. Hawley, nearly smothered with smoke and heat. After remaining on the floor a short time, he sprang to his feet, shook his fist fiercely at his pur- suer, exclaiming :


"Damn your tea, and you too, Hawley ! This is what I despise ; but you won't get any tea here, you rascal !"'


"I'll get you, and that will do much better, so come along."


" Won't you let me wash myself first ?"


"No I had rather have you just as you are, you have got your uniform on, so come along," said Hawley. The man obeyed, and was taken where he was dealt with according to law.


In the discharge of his official duties, he was often one of the attending constables at the various courts held in Angelica. Although Allegany county was remote from the more cultivated portion of the State, yet its courts were graced by the most learned and able judges of that day. Ambrose Spencer, then chief justice, Joseph C. Yates, afterwards Governor Yates, William W. Van Ness, John Woodworth, William B. Rochester, and Robert Monell, each at different times dispensed justice from its bench. while Dudley Marvin, John C. Spencer, Daniel Cruger, Vincent Mathews, Henry Wells, Ebenezer Griffin, and other equally distinguished lawyers ap- peared at its bar. The legal contests of these gifted advocates were watched by Mr. Hawley with intense interest. Nothing occurred which escaped his notice ; and when the law was pronounced by those profound judges, he heard and garnered up all that fell from their lips. Thus, the court room to him, was a great law school, where legal points, precedents, and ele- mentary principles were discussed and practically settled.


During the first term of court which he attended at Angelica, he entered his name as a law student in


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the office of the late George Miles, then a leading member of the Allegany bar. As his means did not permit of his devoting his entire time to the office, he took with him to his home, such books as were neces- sary for him to study, and when relieved from his other duties, he devoted himself to his studies. Thus he continued for two years, perfecting himself in that legal knowledge, which in after years so distinguished him in his profession. Declining the office of consta- ble, he commenced practice in justice court-in the mean time continuing his legal studies. Indeed, while discharging his duties as a constable, he was very often solicited to act in the capacity of counsel, on the trial of cases. Such were now his acknowledged legal attainments and abilities, that he at once gained a profitable and successful business. A distinguished lawyer, who in those days, often met him in justice courts, remarked that "Hawley tried a case before a justice with ability sufficient to distinguish him in any court." He was not merely the sharp, ignorant, swaggering pettifogger-cousin germain to the shyster of larger cities.


His causes were conducted with dignity, propriety, skill, and learning. It must not be forgotten that in justices' courts, grave and difficult questions often occur, the solution of which demands the ablest juri- dical ability. In the discussion of such questions with older and more experienced lawyers, Mr. Hawley dis- tinguished himself.


In these early legal contests, the most ludicrous scenes sometimes occurred, which Judge Hawley in after life, frequently related with great piquancy ; one of which he related to the author a short time previ- ous to his death. It was a case in which the late Thomas J. Reynolds appeared for the defendant. Mr. Hawley had clearly established his cause of action and rested the case. Mr. Reynolds called a certain wit- ness for the defendant, after he was dismissed, recall- ing him. At each time the witness made the defense


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a trifle stronger, but did not quite reach the point which the counsel calling him desired. At length, Mr. Reynolds excused himself for a moment, and called the witness aside, for the purpose of horse- shedding him. He did not, however, get beyond the quick hearing of Hawley, who listened to the follow- ing conversation :


"Bill," said Reynolds, "what ails you ; can't you understand the point ?"


"Yes, but I-I."


"Never mind, Bill, you must go on to the stand again, and get to the point," said the counsel.


" Get to the point ; I should like to know what you call getting to the point ? Why good God, Tom, I've sworn tremenjously, already, and Hawley, damn him, I believes he knows it," said the witness.


"Never mind Hawley, he can't hurt you ; so go back and swear again, spit out what you know, and don't be afraid of Bill Hawley. I tell you again, he can't hurt you."


"I don't know about that," said Bill, with a shrug. "He's got a confounded unpleasant way of squeezing a fellow, who he thinks is guessing at things."


He took the stand again, however, but, before pro- ceeding to testify, Mr. Hawley said, with some se- verity :


"See here, sir; I wish to ask you one question. Have you not already sworn tremendously on this trial ?"'


The witness started with a frightened look.


"There, Tom," said he, "what did I tell you ?" and immediately left the stand.


He did not appear there again that day. At this time, Mr. Reynolds was not admitted to practice. Some years later, however, he was called to the bar and became one of the most respectable lawyers of the Steuben bar, a generous, high-toned, and useful citi- zen. A sketch of his life appears in another part of this work.


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At length Mr. Hawley confined his studies entirely to the office ; in due time he completed them, and, after passing, in a very creditable manner, a thorough examination, he was duly admitted to the bar, and immediately opened an office in Almond. Such had been his reputation before his admission, that he was soon in the midst of a practice of considerable im- portance.




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