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 21

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 21


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The last great criminal case in which he was en- gaged, was that of the People v. Cole, for killing His- cock, a member of the late constitutional convention. That case is still fresh in the recollection of the public. It was, in some respects, like the case of Sickles, which virtually settled the doctrine that the aggrieved husband may lawfully kill, even though sufficient time has elapsed for passion to subside, after the dis- covery of the offense, or on the discovery of such


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circumstances as render the commission of the crime morally certain.


The Cole-Hiscock case went a step further, and ab- solved the husband for slaying the supposed seducer of his wife, on her confession alone ; while the prin- ciple established in the McFarland case went still further.


There are many serious considerations connected with this subject -considerations which admonish society that amid all the perfections of our laws, there is one point in which we have returned to that primitive state, where individuals take the law into their own hands,-redress their own wrongs, "with a red right hand," taking life on the busy street, in the crowded hotel, or wherever the avenger meets his victim. It is apparent that we are approaching a period when this practice must end, else other great offenses will be punished with impunity in the same bloody manner, "for there is already a frightful amount of mob spirit, even among intelligent, reason- able citizens."


Mr. Brady entered on the defense of General Cole, suffering under an indisposition which had existed for some time; but deeply sympathizing with his client, he forgot all personal disability, and with his eminent and learned colleagues made a successful and brilliant defense.


In this trial his mental and physical labors were so intense, that they accelerated the ravages of the dis- ease which was preying upon him, and hastened his death.


But the great intellectual effort of Mr. Brady's professional career -- the one that best exemplified his powers as a jurist, and the amplitude of his mind, was his argument made in the Forrest divorce case in the Court of Appeals. That case was first tried in the New York Superior Court in 1851, before Chief Jus- tice Oakley. It was brought by Mrs. Forrest against her husband for a divorce on the ground of adultery ;


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for weeks it was stubbornly contested, inch by inch ; attracting more interest than any civil suit which was ever before tried in the city.


Charles O'Conor conducted the case for Mrs. For- rest, and John Van Buren appeared as the champion for the great actor. There entered into the contest, all the unhappy dissensions which render the life of the parties "an age of years all winters." Criminations and recriminations gave the case a dramatic interest. But at length Mrs. Forrest succeeded against a tur- bulent and powerful defense. For Mr. O'Conor, it was a triumph seldom attained at the bar-for Mr. Van Buren, the misfortune of the defeat was obscured by the lustre of his brilliant defense, and the exhibi- tion of those talents which rendered him a great and commanding lawyer. The case at last was appealed to the General Term, and at length reached the Court of Appeals, where Mr. Brady entered into the contest as the colleague of Mr. Van Buren ; Mr. O'Conor ap peared for Mrs. Forrest. The argument took place in December, 1862, and the Court of Appeals was the scene of legal contest seldom witnessed within its bar. It could hardly be otherwise, when two such gladiators as Charles O'Conor and James T. Brady were the chief contestants. To say that the argument of the former was able and eloquent, would be like saying of the sun, that it is bright. Mr. Brady's lost nothing in comparison with it. It may be proper, however, to add, that it dissipated the opinion that he was only great in criminal cases. Mr. O'Conor again suc- ceeded, and after fifteen years the Forest divorce case was ended.


As has already been remarked, Mr. Brady was a lover of literature. In the midst of his most engrossing career, he found time to indulge his literary taste. He submitted to the most laborious and persevering process of private study ; like De Witt Clinton, what- ever he found worth reading once, with him, war- ranted a second perusal.


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He believed that poetry, instead of being a dream of fairy land, was imbued with real life ; that the themes of the poet were often the strongest verities, that he moralized in his exquisite imagery, and rea- soned in song.


It is true that Shakespeare, Jeremy Taylor, Milton, Burke, and finally, the most gifted writers which the world has produced, possessed a luxuriant fancy which started forth, adorned, and beautified great philosophic truths. This is attested in the beautiful and sublime allegories of the Bible, in which a mean- ing, lofty and perspicuous, rises to the view ; and hence, as Bishop Lowth has elegantly remarked : "The passion of jealousy, its causes, circumstances, its progress and effects, I hold to be more accurately, more copiously, more satisfactorily described in one of the dramas of Shakespeare, than in all the dispu- tations of the schools of philosophy."


Among the table-books of Mr. Brady, were the works of Atterbury, Steele, Swift, Burke, Fenelon, Halifax, and Berkley. He drew down genius from its air-built citadel in books and libraries, and made it his playmate-his companion.


Like Talfourd, and many other great jurists and civilians of England and America, he committed his thoughts to paper, and his writings enriched the pages of several contemporary magazines and jour- nals. His soft, copious, and harmonious style ren- dered him a favorite of the reading public. Nor was this all ; he possessed eminent abilities as a successful lecturer, and he often appeared before the public in this character. Among the themes upon which he lectured, were "The Advocate-his Rights and Du- ties ;" "The Law of Libel ;" "The Anglo-Saxon Race ;" "The Influence of Useful Inventions on So- ciety ;" "Ireland's Past and Future."


These lectures exhibited a cultivated, happy view, a shrewd and penetrating knowledge of his subject,


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profound without pedantry, and elegant without ex- travagance.


This was his characteristic as a speaker at the bar, there he adapted himself to the strict rules of legal ora- tory ; but even there, the richness of his intellect would occasionally flash out, and he would fasten a glittering diamond-a rich pearl of thought, on the coldest and most emotionless theme.


It has been said that gravity is the cloak of wis- dom, that those who have nothing else, think it a fault to affect one without the other, because it des- troys the only foundation on which their pretensions are built-that the earnest part of reason is dullness ; and that the generality of the world are therefore con- cerned in discouraging any example of unnecessary brilliancy-that the two things do not live together. Edmund Burke did much to overthrow this idea ; James T. Brady did more. He proved that gold is not the less valuable for being wrought into elegant shapes and richly embossed with curious figures ; that the solidity of a building is not destroyed by add- ing to its beauty and ornament ; that the strength of a man's understanding is not always to be estimated in proportion to his want of imagination. In his speeches and in his writings Mr. Brady showed


" How charming is divine philosophy, Not harsh and crabbed, as dull fools suppose, But musical as Apollo's lute."


He was a lover and a patron of the legitimate drama,-not that sensational puerile drama, which runs wild after the most extravagant violation of all rules, and permits the strangest outrages on feelings and taste,-which brings the stage down from the world's epitome to the sphere which " no divine phi- losophy illumes."


His acquaintance with the writings of great dram- atists was extensive. He read critically Æschylus, Sophocles, and Euripides, the three Greek dramatic


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writers whom the Alexandrine critics regarded as the foundation of the Greek literature. He particularly admired the former, for the power in which he painted the passions ; terror was his element, and in that he succeeded beyond any other writer, ancient or modern.


Mr. Brady, in writing to a friend on this subject, some years ago, said, "Perhaps no author blended the passions of pity and terror with more force and originality than Shakespeare-pity, not only for youth, innocence, nobility of character, and virtue, as in Imogene, Desdemona, Brutus, Coriolanus,-or for insignificant persons, like the Duke of Clarence, or profligate and worthless ones like Cardinal Wolsey, -terror in all its forms, from the madness of Lear, and the ghost of Hamlet, up to the dreams of Rich- ard, and Lady Macbeth. But perhaps the most miraculous of all his representations are those in which he has portrayed the wanderings of a dis- ordered intellect, and especially that species of dis- traction which arises from the excess of sorrow."


Mr. Brady was for many years president of the American Dramatic Fund Association, with the origi- nal formation of which he was connected. There are many instances of his liberality towards this institu- tion, which will not soon be forgotten.


He was no politician, at least, not in the common acceptation of the term. It may well be presumed, that had he attempted the career of a party politician, he would have failed, so far as his own aggrandize- ment is concerned. His taste turned him against the bartering, bargaining politicians of his day.


On the accession of President Johnson to the chief magistracy, he was offered the position of attorney- general in the president's cabinet ; he was urged by many of his friends to accept it, but he peremptorily declined, remarking that if there was anything for which he entertained a holy horror, it was compulsory association with Washington politicians.


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He was frequently urged to become a candidate for Congress, but he invariably declined, with that courtesy which governed him in every sphere of action. He was never voted for by the people, but twice-once in 1850, when he was the candidate of the Hardshell Democracy for attorney-general, against Judge Grover, Softshell, or the Freesoil section of that party. Mr. Brady's vote in the State was ex- ceedingly flattering, but Ogden Hoffman, the nominee of the Whig party, was elected. The second time Mr. Brady was voted for, was in 1860, when he became the candidate of the Breckinridge and Lane portion of the Democracy, for the office of governor of the State of New York.


"He was always identified with the Democratic party, and in his youth, during the times of Jackson and Van Buren, he was an active partisan. Although a conscientious adherent to the principles of the De- mocracy, and a staunch opponent of the Republican party, when the late war broke out, he snapped asun- der all political ties that bound him to party policy, and came out boldly against the southern leaders. Few persons did more than he to arouse the patriotism of the people in urging on a complete crushing out of the spirit that animated the insurrection against the federal government. During the terrible riots of 1863, he also took advanced ground in favor of supporting the draft law, and denounced with all the energy of his nature, the attempts that were made to prevent its execution. The only occasion on which he ever acted officially for the federal government was in 1867, when he was sent to New Orleans, as joint commissioner with General 'Baldy' Smith, to investigate the ir- regularities that were alleged to have been committed in the Department of the Gulf. He drew up a report of the investigations of the commission, which is now in the archives of the war department. It is said to reflect very severely against many officers who were stationed in New Orleans and at other posts in the De-


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partment of the Gulf; but for some reason it never was made public. He was, many years ago, after yielding to the extreme solicitation of the authorities, appointed to fill a vacancy occurring in the office of dis- trict-attorney of the city and county of New York, but held the position only a few months." Though in his maturer years, as we have seen, he was not an active politician, yet in the days of his allegiance to the De- mocratic party, he often addressed political gather- ings, and often wielded his pen in defense of his polit- ical principles. But neither his speeches nor his writings were confined to the narrow and transitory politics of the day; he delighted to turn the mind from temporary and personal views, to the great principles upon which every decision of reason must ultimately rest; and without the frequent contempla- tion of which, as Bishop Berkley says, " A man may, indeed, be a thriving earth worm, but he will prove a sorry patriot." Mistakes as to facts-the illusions of political prejudice, or the operation of those passions inseparable from human frailty, may sometimes have led him to erroneous conclusions. In his speeches and in his writings, he was always acute in the per- ception of principles, and in grasping the question under consideration -luminous in their exposition, and ingenious in their defense.


His faults as a speaker or writer were a tendency to verbosity, and the too frequent use of expletives. On popular themes, he sometimes sought too many deco- rations of fancy, which led to redundancy ; but these faults were not of frequent occurrence; usually, there was that naivete and simplicity in his style and man- ner, which never failed to interest the reader or hearer.


He never arose to address the court, the jury, or the general assemblage, without at once commanding the respect and attention of all in his presence. His manner was animated and pleasing ; the interest which he excited soon obscured all his errors. He had a happy talent of adjusting his manner as well as his


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discourse to the capacity of his hearers, and the ob- ject regarding which he spoke. In the language of an eminent legal writer, "He was always fit for the occasion sudden." This is illustrated by the follow- ing incident, related by Luther R. Marsh, Esq.


" I had a case some years ago of such importance to property and character, that I deemed it advisable to call in Mr. Brady to share the responsibility. But so crowded and imperative were his engagements, that I found it impracticable to meet him in consulta- tion-all our appointments fell through. Neverthe- less, I sent him notice of the time the court had as- signed for the argument, and he was promptly there ; though wholly uninformed of the facts or position of the case, I was glad for the magnetism of his presence, though anticipating but little actual support from his reply. Purposely opening very fully-more for him than the court-I observed him rapidly taking notes ; and when I had concluded, he attached and folded his sheets and handed them to me. I found on perus- ing them, that he had grasped the whole case-com- prehending every question involved in it, adding ad- ditional points of great weight and importance, which he had prepared on the occasion. Then, after the op- posing argument, followed his reply-so complete, so well arranged, so powerful, that it would have been remarkable under any state of preparation, but most extraordinary as a spontaneous production."


One of the great characteristics of Mr. Brady, was his independence of character, professional as well as private. Professionally, he cared nothing for weighty influence or powerful names. He believed the intel- lect was too mighty to be subservient to money, or influenced by popular tumult. Hence, as we have seen, when the incidents which led to the late war were occurring, he did not hesitate to unite himself, heart and hand, with those who were engaged in sup- pressing the rebellion. And yet, to use the language of Mr. O'Conor, "Perhaps, the two most remarkable


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circumstances connected with his professional career, were such as to excite among superficial observers, a doubt of his earnestness. When the crew of the Con- federate privateer Savannah were placed upon trial in the city of New York, for piracy, James T. Brady, unrewarded, so far as I know, appeared as the lead- ing champion of the defense-demanding an acquittal. When the struggle had passed - when the mighty conflict was over, a somewhat similar drama was an- nounced. The chief of that great Confederacy was summoned to a similar ordeal; and at once, under the influence of similar sentiments, Mr. Brady appeared as his defender. For this unpopular and arduous office, he also declined remuneration, though ample compensation was tendered. In these acts, you see evinced the self-relying determination and independ- ence of the man's character-his firm and discrimin- ating judgment. His feelings, his prepossessions, his interests, all that could engage the heart of man, placed him upon the side of the North. Could he have so directed the enginery of the war, its stroke would have been fatal to every armed foe throughout the South. But he had a cool, dispassionate judgment, knowledge of the law, and a sense of decorum; and these led him to certain definite conclusions. He thought that courts, juries, and the gallows, were unfit weapons of war ; he deemed them most unfitting accompaniments of the peace which arms had won."


Mr. Brady's situation in defending the Savannah privateers and Mr. Davis, was similar to that of the elder Adams in defending the British officers and sol- diers, engaged in the Boston massacre, in 1770. At that time Mr. Adams was one of the leading patriots, greatly beloved and esteemed for his patriotic exer- tions and his intrepidity in opposing British aggres- sion, and yet, "at the risk of losing the favor and es- teem of the people, he appeared as the advocate of the accused, having for his colleague Josiah Quincy, an-


18


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other leading patriot, whose eloquence had often been heard at the assemblies of the Sons of Liberty."


Few men had a more extensive circle of cherished friends than Mr. Brady. His manners were courteous and kindness was innate in his nature. "With the younger members of the bar he was an especial fa- vorite, always ready to aid them by his counsel and advice. In the social circle he was a genial com- panion ; he had an abundance of anecdote, and was prompt at wit and repartee. For the land of his ances- try, he entertained a love hardly less than that which he invariably avowed for his native soil, and some of his finest touches of eloquence are known in connec- tion with his address on Irish national subjects."


The disease which has been spoken of in connec- tion with the Cole-Hiscock trial, continued to prey upon him, though its symptoms were not sufficiently dangerous to admonish him of his approaching dis- solution. His last public speech was delivered on the 14th day of January, 1869, at the banquet given to that distinguished lawyer, James W. Gerard, on his retiring from the bar. In that assemblage of great and gifted lawyers, Mr. Brady appeared, meeting there, for the last time, those professional brethren, endeared to him by long association.


The scene was unrivaled for luminous eloquence, bright thoughts, original imagery and for a flow of high toned and generous sentiment. There the intel- lect, imagination, and thought of Brady shone out with peculiar brilliancy-in a sort of unconscious power-in a kind of intuitive perception of the anal- ogy of things. His theme was "Our Fraternal Union" -a subject peculiarly adapted to his talents and to the occasion ; some portions of it breathed a pathos which touched all hearts, and aroused emotions which cannot be forgotten by those who listened to him.


After this banquet, Mr. Brady continued his pro- fessional duties, nearly to the day of his death. He died on Tuesday, the 9th day of February, 1869.


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On the Friday previous, he was engaged in the Su- preme Court during the forenoon ; at one o'clock he argued a motion in the Superior Court, and during the remainder of the day, he was engaged in the trial of a cause before a referee. On the Sunday following he was stricken down, and rendered speechless by paralysis ; he lingered until Tuesday following, when he expired.


His death created a profound sensation throughout the country. The bench and the bar attested their respect for his memory, by proceedings characterized by the deepest solemnity and sorrow. Nearly all the eminent members of the New York city bar assem- bled on a call, to attest their grief at the sudden death of their distinguished professional brother. Every degree of talent, of eloquence, and imagination, laid upon his tomb bright and fragrant garlands. "Youth, middle age,-his equals and his peers-the ablest and most respected of his contemporaries, descanted in decent, modest, and becoming language upon his merits."


The popular favor which he enjoyed in such un- measured profusion, was indicated by a little circum- stance which occurred after his decease. A poor Irish woman, to whom he was known, when she learned of his death, out of her scanty earnings pur- chased a camellia, brought it to the door of his resi- dence, and with tears in her eyes, requested that it might be laid upon his coffin.


The wealthy in their pride and strength, the gifted -the eloquent-the renowned, and the poor in their poverty, offered incense to his memory.


The personal appearance of Mr. Brady was attract- ive and pleasing. He was slightly above the middle size, erect and well proportioned. His face was one which left a permanent impression upon the mind of the beholder ; it had all the distinguishing expressions of intellect and the sovereignty of mind. His brow was superb ; his forehead broad and high ; his hair


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dark, thick, and curling, revealed his expansive fore- head, except where a single lock fell over it. His eye and mouth indicated benevolence, refinement, and re- flection ; finally, the classic contour of his features would attract the admiration of the gifted artist, who, while he admired, could not imitate.


Mr. Brady never married. His home was with sisters, to whom he was deeply and tenderly attached ; such were his domestic enjoyments with them, that " he seemed unwilling, by forming a matrimonial al- liance, to loosen the tie which bound him to his fra- ternal relations."


SAMUEL G. HATHAWAY.


His Love of the Legal Profession and Literature .- A Patron of Indigent Literary Men. -Incident Connected with an Eminent Poet .- The Loan .- The Singular but Generous Payment .- His Birth .- A Son of General S. G. Hathaway .- Character of his Father .- The Pioneers .- Their Memory .- Political Incidents in the Life of General Hathaway .- Is Present at the Attempted Assassination of General Jackson .- Scene .- Young Hathaway Enters Union College .- During Vacation, Visits a Friend Engaged in Teaching .- Dullness of the School Room to the Visitor .- Effort of the Teacher to Amuse his Friend .- Laughable Scene in the School Room .- A Whipping in Advance .- Hathaway Graduates and Commences the Study of Law at Cortland, New York .- Completes his Studies with Judge Gray, at Elmira .- Admitted to the Bar, and Commences Practice with his Pre- ceptor .- Election of Judge Gray to the Bench of the Supreme Court .- Hathaway forms new Professional Relations .- His Politics .- Is Elected to the Legislature of 1842-43 .- His Legislative Career .- Azariah C. Flagg .- George P.Barker .- Horatio Seymour .- Michael Hoffman .- Edwin Croswell .- Samuel Beardsley .- Speeches of Mr. Hathaway .- His Reply to Colonel Young .- Stop Policy. - Governor Bouck .- Hathaway Retires from the Legislature .- Refuses a Renomination, but Afterwards Active in Politics .- The Democratic War Horse of the Southern Tier. -Engages Actively in his Profession .- Character as a Lawyer .- Amusing Scene with a Judge .- Hathaway and the Doctor .- Personal Appearance .- Enters the Army as Colonel of the One Hundred and Forty-first Regiment .- Attachment of his Officers to Him .- Ill Health .- Compelled to Resign .- Continued Sickness. -Scene of his Death .- General Characteristics.


No man was ever more ardently attached to his profession than Samuel G. Hathaway ; he regarded it as "the great avenue to political influence and repu- tation, whose honors are among the most splendid that can be attained in a free State, and whose emoluments and privileges are exhibited as a prize to be contested freely by all its members." He believed the science of law to be "the perfection of all human reason." As a student, he reduced the study of it to those me- thodical rules which are adopted in the acquisition of any science ; still he did not sacrifice to his profession




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