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 20

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 20


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The judge sustained Mr. Brady in his views of the law and the facts in the case, and Sarah Coppin was delivered into the custody of her brother.


The manner in which Mr. Brady conducted this case, and its successful result, gave him a conspicuous


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position before the public, and established his reputa- tion as an advocate.


Much of his practice was confined to criminal law, although he did not devote his entire attention to that branch of his profession.


Criminal law practice is peculiarly attractive to sympathetic and active minds ; it gives ample room for the exercise of genius-that quality without which judgment is cold and knowledge inert-that energy which collects, combines, amplifies, and animates. It demands a close and critical knowledge of the com- mon and statute law-an intimate acquaintance with the rules of evidence. The sweeping innovations which the Code has made in the civil law of our State, haveleft the nice technicalities of the criminal law. No advocate can attain eminence as a criminal lawyer, who is not thoroughly, accurately, and deeply read.


In the year 1843, during the temporary absence of Mathew C. Patterson, Esq., then District-Attorney of New York, Mr. Brady was appointed to act in his place. While discharging the duties of this office, an incident occurred which illustrates the character of the latter.


Among the indictments which it became his duty to try, was one against two boys, charged with larceny in stealing a row-boat. The owner, for some reason, strongly desired the conviction of the youthful cul- prits. They belonged to respectable parents, and the serious appearance of the case, caused them the great- est distress.


On the trial, Mr. Brady thoroughly sifted the evi dence, and closely dissected the whole case on the part of the people. It turned out, that the young prisoners had merely taken the boat for the purpose of crossing the East river, to visit an orchard on the Long Island shore, where large quantities of luscious apples hung temptingly from the trees. Mr. Brady was convinced that, though the act might possibly amount to a tech- nical larceny, the boys did not intend to steal the


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boat. Therefore, on resting the case for the people, he addressed the court as follows :


"This offense, your honor, if it be an offense at all, is one of which most men, or, I should say boys, in the course of their lives, have been more or less guilty. It commenced at a very early period in the world's history, in a very luxuriant garden, and has been continued down to the present time. These boys, your honor, are guilty of nothing more criminal than you and I have been engaged in a hundred times, and, therefore, with your consent, I will enter a nolle prose- qui to this indictment."


The court consented, and the boys were discharged. They grew to great respectability, and ranked among the prominent business men of the city. What would have been their condition in life, had they been convicted and imprisoned ? Their association with thieves, rob- bers, and wretches of all kinds, would have alienated them from virtue, and they would probably have left their captivity, to enter on the practice of that deprav- ity which they had learned in prison.


In the year 1845, Mr. Brady was appointed corpo- ration attorney for the city of New York ; his powers, his acquisitions, and his temperament, peculiarly qualified him for the discharge of the duties of this office, and when his term expired he was reappointed. On entering upon the duties of this office, he found the corporation engaged in several intricate and im- portant actions. Suits had been brought for and against it. His learned and able predecessor had left them in a condition which gave Mr. Brady no trouble to prepare for trial. Several of them were tried, and all, excepting one, resulted in his favor. He brought to the trial of these causes, great vigor and grasp of thought ; his plan and outline were marked by great distinctness, and he filled them up with surpassing ingenuity. At the bar, his case would often be appa- rently shattered by the opposing counsel, "but he would gather it up, condense and correct it." Like


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a skillful general, he would place himself with great facility, on the vantage ground of the contest. "He never betrayed anxiety in the crisis of a cause, but instantly decided among complicated difficulties. He could bridge over a nonsuit with insignificant facts, and tread upon the gulf, steadily, but warily to the end."


In many phases of his character he resembled Henry Cockburn. Like that great lawyer, once the pride of the Scottish bar, Mr. Brady, while he could assume any mood, and sympathise with all, was master alike of the stern and the pathetic. His flow of good humor was never failing, and neither care nor anxiety could quench it. He had high thoughts, noble ambition, and deep reflection on men and things.


When Daniel E. Sickles, in his prison at Wash- ington, after the assassination of Francis Barton Key, was planning his defense, and glancing over the names of the great lawyers of the nation, to ascertain which would be most successful for him, he selected Mr. Brady as the associate of Stanton, Graham, Bradley, and Cagger.


The opening argument for the defense was made by John Graham. It was as brilliant and logical as it was successful ; it blended, in the happiest manner, reason with heart-searching pathos. At the request of his eminent associates, Mr. Brady made the open- ing statement of the defense to the jury. He discharged this important duty with great ability and ingenuity, proving the truth of Lord Brougham's remark, that a skillful statement of the case to the jury, by an advo- cate who has a vivid perception of the true relations of things, is a most powerful means of success, and cannot be easily overdone.


"I shall, gentlemen," said Mr. Brady, "prove to you circumstances which, for a hundred years past, have been regarded as a justifiable retribution for domestic peace destroyed, for hopes blasted, home desecrated- all that the heart has garnered up as its last, its only


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solace, withered by some brilliant and insidious se- ducer, whom the arm of the law cannot reach."


On Mr. Brady devolved the duty of examining the witnesses for the defense, and cross-examining those for the prosecution. This, under the circum- stances, was one of the most delicate and difficult tasks ever committed to a lawyer ; for the acquittal of Sickles depended on the fact, that in the case of two important witnesses for the defense, he was obliged to conduct the examination so as to leave no opportunity to re-cross-examine them on the ground that new matter had been introduced ; he was thus compelled to keep something concealed, and yet bring out certain facts intimately connected with this, in order to obtain a verdict of not guilty for the pris- oner.


A successful cross-examination is one of the most difficult and important duties which an advocate can perform ; it requires a knowledge of human nature- of the springs of human action-a subtle and nice discrimination. "When it is not founded on ma- terials of contradiction, or directed to obtain some in- formation which the witness will be willing to give, it proceeds on the assumption that the party interro- gated has sworn an untruth, which he may be induced to vary." But it is often the means by which trust- worthy evidence is mischievously weakened or set entirely aside.


An eminent instance of this occurred on Lord Kenyon's cross-examination of a witness on the trial of Lord George Gordon. The witness testified that a certain flag was carried in a procession, when he was interrogated as follows :


Kenyon. "Can you describe the dress of this man you saw carrying a flag ?"


A. "I cannot charge my memory ; it was a dress not worth minding-a very common dress."


K. "Had he his own hair, or a wig?"


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A. " If I recollect right, he had black hair ; shortish hair, I think."


K. "Was there anything remarkable about his hair ?"


A. "No; I do not remember anything remark- able ; he was a coarse looking man ; he appeared to me like a brewer's servant in his best clothes."


K. "How do you know a brewer's servant in his best clothes from any other man ?"


A. "It is out of my power to describe him better than I do. He appeared to me to be such."


K. "I ask you by what means you distinguish a brewer's servant from any other man's ?"


A. "There is something in a brewer's servant dif- ferent from other men."


K. " Well, then, you can tell us how you distin- tinguish a brewer's servant from any other trade ?"


A. " I think a brewer's servant's breeches, clothes, and stockings, have something very distinguishing."


K. "Tell me what in his breeches, and the cut of his coat and stockings it was by which you distin- guished him ?"


A. "I cannot swear to any particular mark."


This witness undoubtedly told the truth. Yet it is related that he was hooted from the witness box, as if he had sought to impose on the jury. Erskine, who was engaged with Kenyon in the case, in his address to the jury, adroitly took advantage of the temporary prejudice.


"You see," said he, "gentlemen, by what strange means villany is detected."


Lord Kenyon had been at the bar but a short time when that trial took place, and this cross-examination alone, established his reputation as an advocate.


In the defense of Sickles, Mr. Brady conducted the cross-examination with a scrutiny, skill, and penetra- tion, which greatly strengthened his case, and weak- ened the force of the prosecution.


In the zenith of his professional fame, he once re-


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lated, how in his student days, his young ambition was fired by witnessing Blunt and Hoffman defend a man charged with murder.


"Fortunately, or unfortunately," said he, "there was a throb of hope in my breast, that the time would come, when even so great and solemn a responsibility as that of defending a man whose life was in jeopardy should devolve upon me ; the time at length arrived. It so happened that a poor Irishman was charged with the crime of murder. He was a humble person, with few friends and no money. Of his friends, the fondest, most devoted, and persevering, was a true-souled lit- tle woman, born like her husband, and my ancestors, in that beautiful country, on whose bosom so many generations of noble beings have laid themselves down in quiet repose. She sought my aid in the hour of peril to him she loved, and I could not refuse it. None of my profession would. But it was with fear and trembling that I undertook the duty. If I had known the future terror that it was to bring upon my heart and brain, I would have faltered long, ere I had engaged in the cause. If ambition alone had impelled me to the undertaking, I would have dashed that im- pulse to the ground, and smiled upon the fragments of its ruins.


" Without considering at large, how the fortunate result in that case was accomplished, I may say that, in a purely legal point of view, the act proved was in any of its aspects a clear case of murder. It had not that awful feature, however, in its moral bearings, and my aim was of course, to present, with whatever slender experience I possessed, all the extenuating cir- cumstances that could be urged in behalf of the un- happy prisoner. I remember, with perfect distinct- ness, that on the eve of the trial, I walked homeward with the clerk of the court, and the then vigorous and effective district-attorney, who informed me that the guilt of the accused was so flagrant, that it would be his solemn duty to make all legitimate efforts to se-


17


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cure his conviction. I leave my impressions, under the circumstances, to be estimated by those who have incurred an equal responsibility. Had I been obliged to undertake this defense, where I should not have received that kindness that was so delicately and thoughtfully extended to me in that court, I know not what the result would have been to me personally.


" If there is any thing in this life, that is dreadful to contemplate, it is the annihilation of the fondest hopes we hug to our bosom-the destruction of the means by which we strive to attain even temporary distinction, and the laceration of the heart, by which great disappointments affecting our destiny or pros- pects are sure to be attended.


"The trial proceeded ; Judge William Kent pre- sided. In its progress, it would seem that the jury were influenced, insensibly, by the exercise of that kindly nature which radiated its benignity on me, and then bestowing its beams and its fructifying influence on the jurors, disposed their minds in his behalf. The judge charged, and charged in a kindly spirit; but omitting no part of the duty exacted by the law, of which he was the exponent.


" The man was not convicted of murder, but of manslaughter. I can see the jury now, in that room in the City Hall-one of the apartments now occupied by that court over which my friend Judge Daly pre- sides. I can see in that dimly lighted chamber, the prisoner, his frame heaving with convulsive sobs, and the handkerchief in which he buried his face, saturated with the perspiration which streamed forth in his agony. I can see, as they entered, the foreman, as he delivered the verdict that restored the trembling crim- inal to life and hope, and the mild approving look of the judge, as that verdict was announced. Above all, I can never forget the speechless joy of my client, and the features of his poor wife, imbued with the tender- ness and fervor that inspires the humblest peasants that tread the green surface of that old land-never


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shall I forget her, as she fell on her knees, and with clasped hands, and in a voice choking with emotion, breathed in low tones, a prayer for the eternal preser- vation of the judge who presided.


"Imagination need not carry us far to afford an assurance that the prayer of that poor woman, in that moment of heartfelt supplication and blessing, is even now pleading in behalf of our friend for the enjoyment of the infinite pleasures which crown a good life.


"My poor client was sent to State prison for a long term of years. His wife almost daily presented herself in my office to learn from me what could be done to effect his deliverance by a pardon. The time at last came when Judge Kent benevolently interfered, and the man was set free.


"There came a bright, sparkling, Christmas day, and on its glorious morning, the poor couple, with joyful and grateful hearts, wended their way to St. Patrick's Cathedral, and there, kneeling side by side, and joining in the solemn rites of that old faith made dear to me by so many sacred memories-the faith in which I live, and in which I mean to die-repeated with gratitude-with piety-with fervor, the prayer she before uttered from the depths of her pure and eloquent heart."


Such was the deep sympathy, such the generous motives which lived and had their being in the soul of James T. Brady ; who can wonder that his faults are forgiven-nay, forgotten, when such sentiments were paramount in his mind. So were the dreams of his young ambition realized, and the humble student be- came the great and powerful advocate. But even in the day of his greatest triumph, he retained the ver- dure of his early imagination and sentiment ; his heart was a sanctuary filled with lofty and pure thoughts. Is this too warm a panegyric ? Let his professional brethren-let his thousand clients speak, and the coloring of the painting, if painting it is, will be deepened. Well has it been said, that foibles are


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not inconsistent with generous and great qualities. Fools discover that frailty is not incompatible with great men ; they wonder and despise; but the dis- cerning find that greatness is not incompatible with frailty, and they admire and indulge.


At an early period of his life, Mr. Brady attained a position at the bar which gave him a choice in the retainers which were offered him, and, therefore, he was not often the conscious advocate of wrong.


At this period he labored as patiently and ar- dently, as in those years when he was unknown to fame. It has been said that immediate gifts of early praise fascinate and dazzle the mind so as to indispose it for patient labor. No such mental dissipation ever weakened the intellectual frame of Mr. Brady, though from a very early period he was accustomed to ap- plause.


Among the important criminal cases in which he was engaged, was that of Huntington. The defendant was a young man of the highest respectability,-of great wealth-ardent and active in his nature; he participated in the wild speculations of Wall-street, unrestrained by caution and without the balance of moderation, or the interposition of caution, until vis- ions of vast accumulations floated before his eyes, causing him to yield his entire faculties to the possess- ory desire, producing one of those instances of a dis- ordered action of the principle of acquisitiveness des- cribed by Gall, Spurzheim, Guy, Rush, and others.


Under these circumstances, Mr. Brady interposed the plea of moral insanity-that plea which insists that persons who are the subjects of natural, or con- genital moral derangement, are not morally account- able ; as in the case of a female servant described by Ray, who could not help stealing secretly from her master, though she was intelligent, modest, and re- ligious, and was all the time conscious of, and ad- mitted the turpitude of her actions. She was placed in a hospital, as insane, and, after apparent restora-


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tion and a long trial, again taken into service. Grad . ually, in spite of herself, the instinct again mastered her ; and in the midst of incessant struggle between her vicious propensity on the one hand, and a con- scientious horror of her condition on the other, she was suddenly attacked with mania and died in one of its paroxysms. And also the case related by Dr. Rush, in his Medical Inquiries, of a woman who was entirely exemplary in her conduct, except in one par- ticular. "She could not refrain from stealing. What rendered this vice more remarkable was, that she was in easy circumstances and not addicted to extravagance in anything. Such was the propensity to this vice, that when she could lay her hands on nothing more valuable, she would often, at the table of a friend, fill her pockets secretly with bread. She both confessed and lamented her crime."


Mr. Brady contended that Huntington committed his crime under the influence of this species of insanity. If it was not the most successful, it certainly was one of the most brilliant defenses ever made at the New York bar. He exhibited a knowledge of psychology, or the science of the phenomena of the mind, truly wonderful. In his examination of the medical and scientific witnesses, a stranger might easily have mis- taken him for one of the learned professors present, who, for the time being, had adopted the office of in- terrogator. Like Governor Seward, who interposed the plea of moral insanity in the great case of the People v. Wyatt, he often puzzled the wise, learned, and scientific men who appeared against his client, and which exhibited the depth and extent of his research.


But the plea of insanity is unpopular, it rests on so many subtleties-has so often been the subterfuge of the most hardened criminals, that it is difficult to make it available; and as has been well said by Pro- fessor Upham, " Many individuals, through a misun- derstanding of moral insanity, have suffered under the hands of the executioner, who, on principles of re-


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ligion and strict justice, should have been encircled only in the arms of compassion, long suffering, and charity."


Huntington was convicted and sentenced to State prison for a long term of years.


" Mr. Brady also defended McDonald, of Mobile, for killing Virginia Stewart, in Broadway ; Jefferds, charged with the murder of Walton ; Madame Restell, charged with producing an abortion -in the latter case, he was assisted by the late David Graham; the trial of Baker, for killing Poole; in this, the jury dis- agreed three times. At length, Mr. Brady, after a long contested motion, changed the venue from New York to Newburg, on the ground that in New York, public sentiment was so much against his client, as to preclude the possibility of his having a fair and im- partial adjudication of the charge alleged against him. After the disagreement of the Newburg jury, the emi- nent and untiring counsel had the satisfaction of see- ing Baker discharged on his own recognizance, a matter tantamount to an acquittal of the charge on which he was indicted.


" In the Kane arson case, there were two disagree- ments of the jury, and a final discharge of the pris- oner; Jefferds, whom Mr. Brady defended, was ac- quitted of the murder of Walton ; but subsequently, when tried for the killing of Mathews, he was con- victed and sent to State prison.


"In the celebrated Gardner-Tyler will case, he won the suit for his client (Gardner), against the weight of evidence, notwithstanding the client of the opposing counsel was a lady, whose interests were defended by those eminent lawyers, Attorney-General Evarts and Edwards Pierrepont, Esq. It was on the very ground that the verdict of the jury was against the weight of evidence, that the court subsequently granted a new trial.


"Mr. Brady was one of the counsel in the celebra- ted Parish Will Case-a case so important that over


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eighty days were spent in taking testimony. It occu- pied the attention of our State courts for long time ; while many of the ablest lawyers of the city of New York were engaged in it. Messrs. Evarts and Cutting appeared for Mrs. Parish, and John W. Edmonds for the sisters, while O'Conor & Jordan were counsel for the brothers. The latter, however retired from the case, and Mr. Brady was retained in his place ; and with Mr. O'Conor, conducted the argument for the brothers in the Surrogate's Court. The case was con- tested with unusual ability and learning through all the State courts, and was finally terminated in the Court of Appeals. A perusal of this singular case will be of great advantage to the legal student.


"He was engaged also as counsel for the respond- ents, in the argument before the Court of Appeals, some years ago, when the question of the constitutionality of the Metropolitan Police law was before that tribu- nal. This question was finally decided against him, and in affirmation of the new law.


"Nicholas Hill once declared that Mr. Brady's ar- guments gave him more trouble and annoyance, and caused him to study his cases more searchingly and closely than did those of any other lawyer against whom he had ever been pitted.


"In the year 1848, Mr. Brady was counsel for Hon. John C. Mather, State Canal Commissioner, who had been impeached for malfeasance in office, and although some of the ablest legal minds conducted the prosecu- tion on the part of the State, he succeeded in acquit- ting his client. Mr. Brady will be remembered also as one of the counsel in the lengthy Erie Railroad litigation of last year. It was in an argument in one of the many suits growing out of that litigation, that he launched forth such eloquent and powerful invec- tives against a certain Supreme Court judge, and a referee before whom some of the suits were brought for investigation. The matter was much talked of at the time.


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"The eminent advocate did not take every case that was offered him. He seemed to desire only those into which he could throw his whole soul and all the energy of his nature, and many were declined by him -sometimes because he did not choose to undergo the severe mental strain that conducting them would necessarily involve, and at others, because by under- taking them, he would become more or less involved in partisan issues. He was solicited to conduct the defense of John H. Surratt, for alleged complicity in the assassination of President Lincoln, but declined the offer. Both sides tried to retain him in the Ful- lerton case of recent date, the government offering him a fee of ten thousand dollars, but he refused to par- ticipate in it on either side. Mr. Brady entertained the very highest sense of professional honor. In illus- tration of this, it may be mentioned that after the elec- tion of his brother, Hon. John R. Brady, to a seat on the Common Pleas bench, he never would, under any consideration whatever, engage in any litigation before that court, although great pecuniary inducements were frequently held out to him to do so."


These were but a small number of the cases in which Mr. Brady was engaged ; they were tried during the last fifteen years of his life, while very many cases, which occupied the attention of the public at the time of their trial have not been referred to. It is said that of all the persons whom he defended for capital of- fenses, only one suffered the extreme penalty of the law.




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