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 17

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 17


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" What does this mean ?" he inquired.


"It means that you must consider yourself ar- rested, and return with us," replied the officer in com- mand.


" Arrested ? and for what ?"


"We don't allow spies among us without picking them up and treating them according to the rules of war ; so move along, sir," said the officer ; and Stewart


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was conducted into the presence of the commander of the troops.


A drum-head court-martial was organized, and the young stranger was hurried to trial, charged with being a spy.


Matters now had assumed a decidedly unpleasant and dangerous appearance. But Alvan Stewart ex- hibited the same composed presence of mind, the same firmness which, in after years, saved him from the fury of a howling mob.


When the presiding officer of the court announced his readiness to proceed, Stewart asked the privilege of being heard. It was objected, at first, that such a proceeding was contrary to the rules of courts-mar- tial ; but his manner, and that peculiar expression of a face which always enforced homage, and which once seen was never forgotten, plead eloquently for him, and his request was granted. In that solemn and impressive manner which at times rendered his eloquence so irresistible, he commenced by saying :


"I think myself happy, O president of this court- martial, because I shall answer for myself this day, before thee, touching all things whereof I am accused of these soldiers ; especially because I know thee to be expert in all customs and questions which are among the rules of war ; wherefore I beseech thee to hear me patiently."


He then entered minutely upon his defense. His appearance, his accent, his gestures, were so sincere ; he spoke so feelingly of the wrongs of a poor, guile- less traveler, with no friends, that he gained the sym- pathy of the officers and soldiers. Occasionally, that love of the ludicrous, which in after life set courts and juries in a roar, took possession of him, and the stern tribunal before which he stood was convulsed with laughter.


"I pray you," said he, "do not emulate Alex- ander the Great, as depicted by Fluellen, in Shakes- peare, who, in his rages, and his furies, and his


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wraths, and his cholers, and his moods, and his dis- pleasures, and being a little intoxicated in his prains, did in his ales and his angers, look you, kill his pest friend, Clytus." The sly hit about being "in- toxicated in the prains," while it produced roars of laughter from the soldiers, made the dignified presi- dent of the board, a scowling militia captain, wince, for certain reasons which Stewart understood. He closed his address in a patriotic appeal, which was full of deep, impressive eloquence, and which carried all hearts with it.


Resuming his seat, he quietly awaited results ; for a moment there was the deepest silence. At length the commander of the post arose and declared his conviction that the prisoner was not a spy, suggesting to the judge advocate that he ought to be dis- charged, and Stewart was set at liberty.


The scene was changed ; he was now surrounded by friends on all sides. In better days he frequently related this incident, and on one occasion he remarked that could he have that court-martial speech just as he delivered it, he would willingly give any sum of money.


He remained at Middleburgh a few days, and then, much to the regret of the soldiers, continued his journey, with no definite destination in view.


At length he reached a fork in the road; a friendly guide-board informed him, that one of the roads led to Utica, the other to Cherry Valley. Standing at the point where the roads diverged, he held his cane up perpendicularly, and let it fall as it would, determined to follow the road into which it fell ; as it fell in the road to Cherry Valley, he regarded that as a favorable omen ; he followed the indication, and arrived there the next day,-the 13th of September, 1812.


He found the academy at this place without a principal, and immediately applied for the position. He was informed that there were several applicants


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for the place; but the manner and conversation of Mr. Stewart pleased the trustees ; a bargain was con- cluded, and he soon entered upon the discharge of his duties.


The next day he was entered as a student at law, in the office of James Brackett, Esq., a distinguished lawyer of Cherry Valley.


As Mr. Stewart had regularly pursued classical studies for four years, since he was fourteen years of age, that time was deducted from the seven which were then required of young men before their admis- sion to the bar.


Fortunate in pleasing the officers and patrons of the academy, he prospered as a teacher, and ad- vanced himself with great rapidity as a student at law. He continued at Cherry Valley until May, 1813, when he returned home, well clothed, considerably advanced in his professional studies, and one hun- dred and eighty dollars in his pocket,-the net profits of nine months' teaching. Early in June following, he entered the office of Palmer & Walworth, at Platts- burgh, N. Y. ; the latter was subsequently elevated to the high office of chancellor of the State.


Few persons, in any age or country, ever obtained so high a station, and continued in it so long, with such unsullied excellence of character, as did Chancel- lor Walworth. As was said of Sir Samuel Romilly, "He was in truth, a person of the most natural and simple manners, and one in which the kindliest charities and warmest feelings were blended, in the largest measure, with that firmness of purpose and unrelaxed sincerity of principle, in almost all other men found to be little compatible with the attributes of a gentle nature, and the feelings of a tender heart." The reports of cases adjudicated in the old Court of Chancery, are living and enduring monuments of his judicial ability and learning.


Mr. Stewart was so imbued with the spirit of ad- venture, that it was with great difficulty he could con-


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fine himself to the wearisome, plodding life of a law student. After remaining at Plattsburgh a few months, he determined to visit the western country. Accordingly, he once more started out on the wide world ; but by the time he reached Cherry Valley, his funds were exhausted, and he once more entered the academy at that place as its principal, and continued his legal studies in the office of the late Judge James O. Morse. But when, by his academical labors, his purse was once more replenished, he again, in com- pany with Ira Bellows, entered on his prospecting tour through the then far west, now western New York, traveling on foot. He visited all the points of interest in that region; at length he reached Olean Point, where he remained a few days to regain his strength and vigor.


While there, he was retained to try a suit in a justice's court, which he did much to the satisfaction of his client and his own gratification. About this time, a raft was in readiness to leave Olean, on which he embarked for a trip down the river; the ex- penses of which were defrayed by rendering some slight service to the raftsmen on the way. At the junction of French creek and Allegany river, he took leave of the raft, and engaged passage on a flat- boat to Pittsburgh.


At length, in April, 1815, he reached Paris, Ken- tucky, with thirty dollars in the treasury. Here he obtained a desirable position as principal teacher in an academy, employing his leisure hours in the pros- ecution of his legal studies.


Yielding again to his love of adventure, in April, 1816, he closed his school, and with three hundred and seventy-five dollars in his pockets, he once more commenced his wanderings.


On the 20th of May, following, he visited Lexing- ton, Kentucky, and, provided with letters of introduc- tion from a friend at Paris to Henry Clay, he called on that illustrious statesman, who was then speaker


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of the House of Representatives, having just returned from Washington to Ashland. He received the young traveler with that graceful benignity, which rendered his manners so extremely pleasing and even fascinat- ing to all who approached him.


He entered freely into conversation with his guest, discovering in him, a fertile and vigorous mind ; learn- ing that he was preparing for the bar, he manifested much interest in him, giving him some salutary ad- vice as to the manner of pursuing his studies, and as to the character and influence of the lawyer.


" You must," said Mr. Clay, " cultivate, assidu- ously, the habit of reading, thinking, and observing ; for there is no excellence without great labor."


Before Stewart took his leave, Mr. Clay gave him letters of introduction to eminent gentlemen residing in the towns which he proposed to visit.


In speaking of this interview, Mr. Stewart once remarked, "The moment my eye fell upon Henry Clay, before he uttered a word, I was impressed with his air of natural greatness. As has been said of Hal- ifax, his brow, his eye, his mouth, indicated a power- ful intellect, and his placid dignity, half courtly, and half philosophic, belonged to Clay, and to Clay alone."


After visiting various parts of the South, Stewart returned to Cherry Valley, and resumed his studies in the office of his friend, Judge Morse.


Having enjoyed all the novelties and all the per- plexities, resulting from a life of travel, he determined to relinquish all other pursuits, and prepare for his admission to the bar, resolved to become the lawyer in the depth, extent, variety, and accuracy of legal learning ; and he carried his resolution into effect ; the laws of nature-the laws of nations -- the civil law -the law merchant, and the maritime law, all re- ceived from him the closest attention. It was his am- bition to be able, as Cicero recommends, apte,


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distincte, ornate dicere ; how well he succeeded, is revealed by his future professional career.


In due time he was admitted to the bar, and, as a partner of Judge Morse, commenced the practice of law at Cherry Valley. He soon acquired a high reputation for eloquence and talents, and gained a properous practice.


Though he loved the principles of law as a science, though common law, precedent and statutes, were fa- miliar to him, yet he did not relish the technical, me- chanical and formulary branches of his profession. But, as necessity compelled him to labor, he chained himself to the tasks which the life of a country prac- titioner at that period imposed upon him ; and, not- withstanding the natural tendencies of his mind, he entered the field of special pleading, whose formula, to use the language of another, become as much a scien- tific instrumentality in the system of actions then exist- ing, as is logarithms or algebra in the business of math- ematics. "Their use, or their usefulness, or their ne- cessity," continues the writer, "is as much a question of science as is either logarithms or algebra." And he became familiar with the Demurrer, the Plea, the Replication, the Rejoinder, the Surrejoinder, the Re- butter and Surrebutter, which series of pleading has been pronounced "the rationale of the process of ju- dicial investigation."


Thus, for sixteen years, he devoted himself to his profession with such pecuniary success that he ac- quired considerable property, and gained the reputa- tion of an eminent lawyer. But this entire dedication of himself to business began to affect his health, which at length became so seriously impaired that he was obliged to surrender the details of office business, and at length to give up, for a time, the entire practice of his profession.


At this period, he was advised by his physician to travel ; and accordingly, in 1831, he visited Europe.


He returned home, with his health much im-


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proved. Early in the year 1833, he disposed of all his interests at Cherry Valley, removed to Utica, and in that city resumed his profession, but he confined his business entirely to the courts, having nothing to do with the drudgery of office practice. In the capacity of counsel, his business extended over a large portion of central New York, and even into distant counties, meeting in antagonism the ablest lawyers in the State.


The labor, strife and collisions of his profession did not in any degree impair his love of letters, and the culture of his mind. He read, critically, all the eminent Latin historians in the original.


Frequently, in speaking of Livy, Sallust and Tacitus, he used the language of an elegant English scholar : "I am pleased with Sallust for entering into those internal principles of action which arise from the characters and manners of the persons he de- scribes ; with Tacitus for displaying those outward motives of safety and interest, which give birth to the whole series of transactions which he relates ; and with Livy for his inimitable manner of telling a story."


With great industry, and much expense, he gathered a library, from which he drew the inspira- tions of an elegant literature. In his hours of relaxa- tion from business he retired to it, and over those pages which in earlier years fired his admiration and formed his youthful taste, he forgot the toils, cares and weariness of life's great struggle ; thus employed, he returned again to that period when ambition has no bounds and fancy no curb.


Ah, what power is there which calls us so forcibly from the stern scenes of our manhood, back to the beautiful ideal of our youth, like glancing over our earlier studies ? Friends-classmates-those "whom youth and youth's affections, bound to us," start up before us, and, ere we are aware of it, boyhood has come again.


In the solitude, in the conflicts and struggles of


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his youth, the strength of Mr. Stewart's mind was called out ; they drew him into intimacy with the outward universe-with man-with his own soul ; gave his nature a kind of poetical habit, and stimu- lated those elements of pathos which often started out in his speeches, and carried his auditory captive.


Mr. Stewart's attendance upon a circuit was al- ways regarded as an event of interest, both to the bar and to laymen.


He was once engaged for the plaintiff in an im- portant case at the Otsego Circuit. The counsel for the defendant, taking umbrage at some remark of Mr. Stewart in his opening, during the trial made several sarcastic attacks upon him. It happened that this lawyer, a few weeks previous, had been strongly ac- cused of receiving the visits of a certain lady in his office, quite too frequently to warrant the conclusion that she came there on legal business, and the matter created much scandal. This affair had come to the ears of Stewart.


In his address to the jury, the lawyer continued his attacks. At length he remarked, raising his voice to a high pitch, that "when the counsel for the plain- tiff died, it should be written on his tombstone, 'Died of attempting a dry joke,' for that, gentlemen, is probably the way he will shuffle off this mortal coil." Of course, considerable laughter followed this remark, and the counsel believed he had annihilated his oppo- nent.


Mr. Stewart, in addressing the jury, made one of those efforts, which has given him his high reputa- tion as an advocate ; he made no allusion whatever to the counsel opposed, until he had nearly closed his remarks; when he suddenly paused, and with one of those looks which all knew was a prelude to a withering sarcasm, said :


"Gentlemen, I had nearly forgotten that I have an opponent here ; really he has done so little in the way of defense, that having hardly felt him, I was in


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danger of overlooking him. But you will say that it would be unkind for me to do so, since he has passed through all things earthly, down to the period of my death, and benevolently prepared my tombstone for me. In charity, therefore, I will do something for


him ; but what I do will only be suppositious. Sup- pose, gentlemen, that some day my friend here should be found dead in his office ; such mournful events do sometimes happen. Now I will suppose what the verdict of the coroner's jury would be in that case. It would, gentlemen," said he, in a deep sepulchral voice-" it would be, 'assassinated in his office by Kitty Sly, who pretended to go there for counsel.' "


The scene that followed can better be imagined than described. There stood Stewart looking the very picture of solemnity, until the explosion ended, when he continued with a deeper shade of sorrow pas- sing over his features,-" gentlemen, as my friend here, has been terribly exposed to such a fearful fate, I can only bid him-beware ! beware !"


Again all in the court-room were convulsed with laughter, which the officers in vain attempted to sup- press. Though that lawyer lived to try many more causes against Mr. Stewart, he never again attempted his sarcasm upon him.


Luther R. Marsh, Esq., who, during the latter part of Mr. Stewart's professional career, often heard him at the bar, and who knew him intimately, thus speaks of him :


"He was one of the most formidable adversaries that ever stood before a jury. You could do nothing with him, nor make any calculations for him. It was impossible to tell where his blows would fall, or where his point of attack would be, or what scheme of de- fense he would adopt.


"His peculiar and overflowing humor, strange conceptions, and original manner, united with the sturdy common sense at the base, seemed to carry the


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jury irresistibly with him, and submerge all the sober arguments of his opponent in a sea of laughter.


"Even the strongest charges of the judge were powerless against him, of which the late Judge Grid- ley used often to complain.


" With his rare humor, which seemed to interpen- etrate all his thoughts, there were springs of great pathos in him-a power of touching the sensibilities- a fancy that illuminated his pathway through the driest details of fact-a mastery of the philosophy of his subject - a copious vocabulary - a grand and sweeping style, which bore you along as on the cur- rent of a river.


" His manner of speaking was very deliberate; his temper admirably under his control, and it was im- possible to ruffle him, or throw him off his guard. His repartee, though quick and demolishing, had in it no personal sting, and his adversary was often obliged to join in the laugh against himself.


"The court room at Otsego often rang with the sheriff's call to order, after Stewart had arisen to ad- dress the jury, and before he had opened his mouth.


"Indeed, I have seen the supreme court-room, with Judges Nelson, Bronson, and Cowen on the bench, in an uproar, at his manner of reading a dry affidavit, and the judges themselves unable to main- tain their gravity."


During his active practice at the bar, Mr. Stewart, though he took a deep interest in all public matters, devoted but little of his time to politics as a mere par- tisan. With no ambition for office, or political dis- tinction, himself, he had nothing to do with the scramble for office-with party intriguers-with the degrading practices of juggling political managers of local politics, nor the leaders of conventions.


On great national questions, which were called into operation by the pressure of interesting and important circumstances, particularly the question connected


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with the tariff, the character and qualities of Mr. Stewart gave him great weight and influence.


Possessing a mind orignally strong, ardent, capa- cious, and discriminating, he observed, the manifesta- tions and results of the theories which the various systems of home protection had elicited.


In the year 1826-27, the great question before the nation, particularly at the north, was that of the tariff.


Mr. Stewart was an outspoken protectionist; a series of articles written by him on that subject, had attracted public attention, for the clear and able man- ner in which he discussed the great matters of com- merce, finance, and our manufacturing interests. Some of these articles exhibited the power-the pen- etration of Huskisson, and the comprehension of Wright ; they greatly enhanced his popularity, and gave him the reputation of being a man of a strong, extended, and liberal mind.


In the summer of 1827, the interest in the tariff question had become so intensified, that "the Penn- sylvania Society for the protection of Manufacturers," &c., called a national convention, to be held at Harris- burgh, September 25, 1827.


The northern States, with great unanimity, pre- pared to send delegates to this convention.


A State convention was convened at Albany, in August of that year, which was largely attended, every county in the State being represented. The late Judge Buell, of Albany, was president. The convention was addressed by Colonel Young, of Sara- toga, General Van Renssalear, of Columbia, and Al- van Stewart.


A delegation, consisting of highly distinguished citizens of the State, among whom was Mr. Stewart, was chosen to represent the State in the approaching national convention.


Mr. Stewart was also one of the committee chosen to prepare resolutions expressive of the sense of the


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common sentiments of the people at that period, on the subject of home protection.


These remarkable resolutions, emanating from the people of the Empire State, on the great question of protection, had a decided influence on the other States, -they were drawn with great care, and bore the indubitable evidence of the most exalted states- manship.


At Harrisburg, Mr. Stewart was again heard on the question of a protective tariff; his speech, exhib- iting a comprehensive knowledge of the subject, pro- duced a marked effect upon an audience composed of the representative wisdom of the North.


In 1828, though then a Democrat, he abandoned the support of General Jackson, because of his oppo- sition to the tariff, and published an address to the people of his county, from which the following ex- tract is taken :


"The Southern States,-and they will all support General Jackson, -may be set down as feeling an un- reasonable enmity to the tariff law, because it gives strength, vigor, capital, home-market, and an in- crease of votes to the Northern and Middle States. To these southern opponents, may be added the city of New York, part of Boston, and some other of the New England seaboard towns, which are joined to foreign idols, and constitute positive ene- mies of the tariff,-bound to never ceasing opposition till its repeal.


"To this corps may be added a class of men-serv- ing, doubting, compromising, unbaked and combina- tion-forming politicians,-always ready to embark for or against their country, as they think will best suit their own interests. And to these may be added, England's influence over her debtors in this country ; her threats, already, to ruin us with smuggling, to force her goods upon us from the Canadas ; Peel and Huskisson have told the States north of the Potomac, that they do not know how to manage their own af-


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fairs ; and all this influence to be led on by an admin- istration favorable to the abolition of the protective system. Might not a friend of the tariff, when he sees this force brought to bear against the American system, withdraw and sink down in mournful silence, as Æneas withdrew from the defense of Troy, when he saw Neptune shaking the wall and Juno heading the besiegers ?''


It is singular that a man possessed of such al- most transcendent abilities, should have had so little political ambition. He possessed that administrative ability, that effective eloquence and versatile knowl- edge, which, in a parliamentary body, would have rendered him powerful. But he was destined to an- other sphere of action, to which his genius, his learn- ing and his eloquence became subservient.


The first anti-slavery movement in the United States which assumed any organized form, took place in 1815, under Benjamin Lundy ; for years it struggled with what may be called a doubtful exist- ence. But through the unwearied energy of Lundy, a convention was held in Philadelphia, which gave considerable vigor to the cause, and continued its ex- istence until the advent of William L. Garrison, who, in 1830, after lecturing on the subject of abolitionism in the various cities of the north, sometimes assailed by mobs, and everywhere meeting with insult and op- position, established in the city of Boston, an anti-sla- very paper called The Liberator, with its bold motto, "Our country is the world, our countrymen all man- kind." Soon after, the more defiant and startling words, "No union with slaveholders; the Constitution is a covenant with death and an agreement with hell," were added.


This last motto was regarded as the utterance of the most extreme fanaticism, and was everywhere met with execration and invective ; it increased the spirit of opposition. It resulted in dividing the opponents of slavery into several parties ; the Garrisonians, who,




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