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 22

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 22


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the general improvement of his intellect and heart. Never was there a more unconfined mind than his, and it may be cited as a practical example of the benefits of that general culture of the intellect which forms one distinction of our times ; but which some dread as unfriendly to original thought ; but as has been well said, the mind is diffusive, and accordingly, its natural progess is from one to another field of thought; and that wherever original power, or cre- ative genius exists, far from being distracted or op- pressed by the variety of its acquisitions, it will see more and more common bearings-more hidden and beautiful analogies in all the objects of knowledge- will see mutual light shed from truth to truth, in what- ever topic it would unfold. This was well understood by Mr. Hathaway, and this rendered his mind singu- larly harmonious-a well adjusted whole.


He was accustomed from his youth to drink from the fountains of classical literature, but he possessed no pedantry or undue fastidiousness. In the midst of his most trying professional labors, he often surren- dered himself to the enchantment of literary reading -of Oriental fiction-of the strange and beautiful cre- tions of "Araby the blest."


An ample fortune gave him every opportunity for the cultivation and enjoyment of his taste.


To indigent literary men, his hand was ever open. The following circumstance is only one of the many that characterized his intercourse with them. Several years before his death, a distinguished poet of our own State, who still lives and is known to fame, but who, like many that court the Muses and linger around Parnassus, was then poor ; happened to be in the city of New York, much in need of means to ex- tricate himself from embarrassment. While deeply studying how and in what manner to obtain pecun- iary relief, he happened to meet Mr. Hathaway, with whom he was acquainted, coming out of the Supreme Court room in the City Hall.


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" Ah, Colonel, how do you do ? I am very glad to see you," said the poet, shaking hands with the former.


"I am very happy to meet you, and how is it with you and the republic of letters ?" said the colonel.


" You know, Colonel Hathaway, that all republics are ungrateful, but the republic of letters is espe- cially so, and I am just now a victim of the latter," said he of the Muses.


"I am sorry to hear this; it cannot be that the vox populi demand your oppression," replied Mr. H.


"Oh, no," said our friend, "it is only this, I am sorely oppressed for the want of a sum of money, and as I always give my particular friends the preference on such occasions, I desire that you will loan me the amount I need."


Mr. Hathaway learned that the sum he desired was one hundred and fifty dollars. As soon as it could be counted, the poet was rejoicing in the pos- session of the money. With many thanks, and prom- ises of an early payment, he hastened from his bene- factor to his importunate creditors.


Time passed on, a year rolled away, and in the multiplicity of business, the event had nearly passed from the memory of Mr. Hathaway, when one day he received by express, a box of considerable size, quite heavy, and apparently well filled. Upon removing the cover, he saw that it contained a large number of neatly bound books, which, upon examination, proved to be the recently published works of the poet to whom he had loaned the money in New York. Taking the books from the box, he discovered, neatly written on the inside of it, the following couplet :


" Bards are birds of various prey,


Ye gods, why pounce on Hathaway ?"


It was enough ; the lender was generously paid, and, as he afterwards said, the books more than paid


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the principal, and the poetry paid the interest com- pounded.


Colonel Samuel G. Hathaway was born at Free- town, in the county of Cortland, on the 18th day of January, 1810. His parents were the late Major-Gen- eral Samuel G. Hathaway, and Sally Emerson, of So- lon, Cortland county. The families of Hathaway and Emerson, are both of English descent ; that of the for- mer has a known genealogy, which extends far back in- to English history. In the long and eventful life of General Hathaway-in the various positions which he occupied-in the many posts of public duty which he filled-in the many instances which his life affords of untiring energy, and devoted patriotism, a true representative character of our Republic is developed, which impresses its own appropriate teaching on pos- terity ; for, in the language of inspiration, "No man liveth, and no man dieth unto himself." It was quaintly said by one of the kings of Arragon, "Dead men are our best instructors." General Hathaway was one of those who aided in making the desert bloom. He was a pioneer of central New York.


Alas ! how fast they are passing away from earth, these sons and daughters of a day of peril, toil, and hardships. Their stern virtue, their unbending in- tegrity, their enterprise and industry, laid the foun- dation for the wealth, the culture, the refinement of our day. Most of them sleep beneath the soil they loved so well, and which they made almost as rich as the vale of Cashmere. Wealth and fashion have changed their good old customs, their homely, but time-honored institutions ; yet on the hillside, and in the valley, their green graves are venerated spots, and their spirits seem to linger by the forest and the stream, while the murmuring breeze breathes a gentle, but not unwelcome, requiem for them. Let us fondly cherish the memory of the pioneer. "Let not am- bition mock their useful toil." Amid the events of our day their memory will come to us, like a voice


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from the past, with many hallowed associations, which bind their names to every spot where they fought so well the battle of life.


" And these-of whose abode, Midst her green vallies earth retains no trace, Save a flower springing from their burial sod, A shade of sadness on some kindred face A dim and vacant place In some sweet home."


Among such men Mr. Hathaway was a leader whom they delighted to honor; and whose interest he ever labored to advance and promote. At the or- ganization of Cortland county, which took place in 1808, he settled at Solon, where he continued to reside · until his death. In the spring of 1814, he was elected member of Assembly from Cortland county. In the spring of 1813, Daniel D. Tompkins was trium- phantly re-elected governor, over Stephen Van Rens- selaer, his opponent. The war with England was then raging, and such was the ardent, energetic and patriotic support which Mr. Tompkins, in his pre- vious administration, had given President Madison in the prosecution of the war, that he became the dar- ling of the then victorious Republicans, and "The Farmer Boy of Westchester, " as Mr. T. was then called, "was toasted at every gathering of that party."


General Hathaway entered the Legislature the firm and unswerving friend of the president, the close, intimate and influential supporter of Governor Tompkins ; and their friendly relations continued through life. In the year 1816, the General acted with Enos T. Throop, Martin Van Buren, Peter B. Porter and others, in securing the nomination and election of Mr. Tompkins to the vice-presidency of the United States. Mr. Monroe received the electoral vote for president. Mr. Hathaway was again elected to the Legislature in the year 1818. Cadwadader D.


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Calden, and Ogden Edwards, of New York city ; Stephen Van Rensselaer and William A. Duer, of Albany ; William B. Rochester, of Steuben ; Erastus Root, of Delaware, and William C. Bouck, of Sco- harie, were then members of Assembly - while the Senate was composed of such names as Martin Van Buren, Abraham Van Vechten, Samuel Young, Peter R. Livingston, Moses J. Cantine, Jabez D. Ham- mond.


Those were days when talent, ability, probity and honor were sternly demanded of those who sought legislative and other official honors. In those days cupidity, speculation, and infamous panderings to sources of wealth, were not known by law-makers. In those days ambitious, inefficient, ignorant, bad men did not push themselves into high places. In those days men did not prate, in halls of legislation, of morality, patriotism, and even religion, in accom- paniment to the ring of the dollars which had just bought their souls. Politics was not then the reeking cesspool where men fatten and grow rich on corrup- tion-men, who yesterday were the Lazaruses whose sores were not even licked, and who to-day revel in putrid magnificence.


General Hathaway was elected a State senator from the old sixth Senatorial district in 1823, during the administration of Governor Yates. He was elected a representative in Congress from the then seventh Congressional district in the year 1832, and took his seat in 1833.


It was during the second session of this Congress that Richard Lawrence made a bold and intrepid at- tempt to assassinate President Jackson, "which pro- duced great sensation at the time, and which, if the consequences had been equal to the apparent purpose, would have signalized the day by a horrible catas- trophe." The attempt was made in the portico of the capitol, at the funeral of the Honorable Warren R.


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Davis, member of Congress from South Carolina, just as the president, with the secretary of the treasury, Hon. Levi Woodbury, on his left arm, was leaving the rotunda. Mr. Hathaway and General Root were a few paces in their rear, when a person stepping for- ward from the crowd in front of the president, within two yards and a half of him, leveled a pistol at his breast.


A loud and sharp report instantly followed, which was supposed to be the report of the pistol, but which was only the explosion of the percussion cap. The man instantly threw the weapon upon the ground, and drew another, ready cocked, from his pocket, which he presented at the heart of the president, and another loud report reverberated through the portico ; this, too, proved to be merely the explosion of the cap ; the pistol did not discharge.


All this was done so rapidly and adroitly that no one had time to interfere with the attack until all was over. In a moment a scene of indescribable ter- ror and confusion ensued ; many 'believed that the president had been assassinated. The old hero him- self exhibited that dauntless courage which ever characterized him in times of peril. He did not ob- serve the assailant until after the discharge of the first cap, when his attention was directed to him by the report. The man was then in the act of presenting the second pistol. Lifting his cane, the general sprang like a lion upon his antagonist, but, before reaching him, the explosion of the cap took place. The next instant the President was near enough to strike him with his cane, exclaiming, "Leave him to me, and, by the Eternal, he will never do that thing again" ; but by this time Mr. Woodbury, Generals Root and Hathaway, had reached the assassin, and he was at once prostrated upon the floor. Upon ex- amination, the weapons proved to be a pair of elabor- ately finished pistols, of the Derringer order. They


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were perfect in all their parts, and carefully charged with powder and ball.


There was nothing discovered which could prevent their discharge. The next day, in presence of the secretary of the navy, and other distinguished gentle- men, they were re-capped, the charge which had been inserted by Lawrence still remaining, and, at the first attempt, they were both discharged ; the balls which they contained penetrated several inches into a stick of hard timber, exhibiting at once the deadly nature of the weapons which had so mysteriously failed when presented at the heart of the president. His escape was, indeed, most wonderful, and a grateful nation saw in it the hand of Omnipotence-the shield of Him who controls the destinies of nations.


President Jackson laid his hand upon the Bank of the United States with the energy of a giant, and that powerful institution which controlled the money marts of the nation, I had almost said of the world, writhed in his grasp like the fabled Laocoon, Neptune's priest, in the folds of Minerva's monsters. Rage and bitter defiance followed the fearful contact. The na- tion was convulsed from center to circumference ; but the genius, the power, and the irresistible determina- tion of Jackson prevailed, and the Bank, with all its power and influence, fell conquered and helpless at his feet.


The attempt at his assassination was believed by his friends to have been planned by the friends of the Bank, and for a short time it was openly charged up- on them. But, upon due examination, it was ascer- tained that Lawrence was hopelessly insane ; having no motive whatever in his attempt upon the life of the president, except the vagaries of a mind in ruins.


After retiring from Congress, General Hathaway returned to Cortland county, and ever after declined all civil office. He was, however, until a period near his death, an acting major-general of militia in this State, having held that office for many years. He


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died at Solon on the 2nd day of May, in the year 1867, in the eighty-seventh year of his age.


Colonel S. G. Hathaway prepared for college principally at the Cortland Academy. He graduated at Union College when he was twenty-one years of age. While at college, he had a much esteemed friend, who was a student at law, and who, during the winter, taught a district school to aid him in pro- curing means for the prosecution of his studies. Dur- ing one of his college vacations, young Hathaway visited his friend, spending the afternoon in the school room. It was a dull place for the gay and active young collegian. This soon became apparent to the teacher, who exerted himself to create some in- terest for his friend. Classes were called for Hatha- way to inspect. Lessons were rehearsed, hard words were spelled, and hard problems in arithmetic solved, but all to no purpose, the school room was the em- pire of dullness to the visitor. The schoolmaster found himself pushed to extremities for something to interest his friend. In this manner some time passed away, when suddenly the man of the rod called out-


"James Buck, come here !"


This command was addressed to a dirty, squint- eyed, mischievous looking boy, apparently twelve or fourteen years of age, who happened just then to be demeaning himself quite reputably. The boy obeyed, looking the very picture of injured innocence.


"Take off your coat, sir," said the teacher, seiz- ing a formidable looking rod which lay upon a table near by.


"O, dear, I hain't been doing nothing, no how. Bill Jones wanted to give me a great launking dough- nut just now, but I wouldn't take it, 'cause I wanted to be good," blubbered the urchin.


"Take off your coat, I say !" said the teacher, flourishing the whip.


"You ain't going to lick a feller for being good, are you ?" roared the boy.


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"Take off your coat !" thundered the teacher.


Seeing no other alternative, he obeyed, and the master gave him a good, thorough, old-fashioned whipping, during which the boy continued to scream, "Oh, hold up, hold up! I didn't take Bill Jones' big dough-nut ; I didn't do nothing, no how. Oh, hold up ! hold up !"'


The whipping over, the boy put on his coat and resumed his seat. Hathaway, during this scene, was obliged to cram a handkerchief into his mouth, to prevent his roaring with laughter at the queer ejacula- tions and gyrations of the boy.


"What on earth did you whip the boy for? I didn't see as he had done anything to deserve it," said Hathaway to the teacher, as they were walking home after school.


"Hath," replied the schoolmaster, "I saw that it was getting confounded dull, and I felt so sorry for you, that I didn't know what to do. So I called up that boy and thrashed him for your especial ben- efit."


"But the boy had done nothing to deserve it," re- plied Hathaway.


"Never mind that ; he seldom goes a half day without deserving a thrashing, and I'll give him credit for this one the next time he deserves the gad. So he has lost nothing, and I made it interesting for you, Sam," replied the teacher.


Subsequently, the schoolmaster became a distin- guished and successful lawyer, continuing his friendly relations with Mr. Hathaway through life. It was the delight of the latter to relate this story before his friends on festive occasions, always ending by saying, "It is true, you know ;" to which the latter would re- ply, "Yes, it is as true now as it ever was."


Immediately after graduating, Colonel Hathaway entered the office of Hon. Jonathan L. Woods, a lawyer of high standing, residing at Cortland village. Mr. Woods represented Cortland county in the Leg-


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islature of this State with much ability, in the year 1832, and during his life he retained the confidence and respect of the bar and of the people generally.


After continuing one year with Mr. Woods, Hathaway was invited by Hon. Hiram Gray, of El- mira, to enter his office as a student. The offer was accepted, and he removed from Cortland to Elmira, in August, 1833. At this period, Judge Gray had fully entered upon that field of successful and exten- sive professional practice that led to the high po- sition which he has attained as a lawyer and a judge. He had once been a resident of Cortland, having for some time pursued his legal studies there. Here he first became acquainted with Mr. Hathaway, whom he regarded as a young man of uncommonly ripe un- derstanding, and possessing many rare and engaging qualities.


Under the care and superintendence of Judge Gray, Mr. Hathaway progressed rapidly in his studies ; he was a close and methodical student. The science of law opened to him a vast field of in- tellectual research ; and he regarded it not only as a rule of action, but as a system of ethical and induc- tive philosophy, through which the intellect and heart are alike invigorated and enlarged; a science which is intimately connected with the great objects of thought, and the great interests of life-a theme which has summoned as its follower, all orders of mind, the scholar, the statesman, the student of na- ture, and the observer of life's great drama. To the casual observer, it is sometimes regarded as a system of technicalities disjointed from philosophy, from lit- erature, and from liberal research-a system through which justice and equity is often too finely filtered to answer the great ends for which it was designed. But this is a Utopian view, founded, perhaps, on ob- serving the career of legal martinets, instead of lib- eral and high-minded lawyers. In studying law, Mr. Hathaway was not satisfied with simply ac-


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quiring the "familiar weapons with which lawyers war with one another." It was not his object to be- come expert, but profound.


He completed his legal studies with Judge Gray, and was admitted to the bar at the October term of the Supreme Court, held at Albany, in 1836. John Savage was then chief justice, and this was the last term at which that eminent and learned jurist pre- sided. He retired from the bench in January following, spending the remainder of his days in dignified re- tirement, upon his estate at Salem, in the county of


Washington. Mr. Hathaway, immediately after being called to the bar, formed a copartnership with Hon. James Dunn, of Elmira, who was subsequently appointed first judge of Chemung county, by Gover- nor Wright. This relation continued but one year. After its termination, Mr. Hathaway entered into partnership with his preceptor, Judge Gray.


This firm existed until the year 1846, when the senior member was appointed one of the circuit judges of the State. Judge Gray had previously been elected to represent the then twenty-second Congressional dis- trict in Congress.


The Constitution of 1846 provided that the judges of the Supreme Court should be elected by the people. In the convention which formed this Constitution, the question of an elective judiciary was one of the great subjects for discussion. The propriety of submitting so important an office to the vicissitudes of political parties, and political interests-to the cor- rupting influence of partizan strife-of rendering its high and dignified functions a prize for scrambling party politicians and petty demagogues-was doubted by many liberal and reflective minds. But happily, with some exceptions, the doubts and fears which existed against an elective judiciary have proved groundless, and to-day the Empire State has a bench which loses nothing when compared with the learned and illustrious judges of the past.


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Judge Gray was elected a justice of the Supreme Court at the judicial election, which took place soon after the new Constitution went into operation. His official term continued four years, at the expiration of which time he returned again to the practice of his profession, simply because he was ardently attached to it, and because he could not endure to be an idle spec- tator of an arena, wherein he had been so long and so successfully a contestant.


After the appointment of Judge Gray, Colonel Hathaway formed a copartnership with Hon. A. S. Diven and James L. Woods. The former had been a distinguished and successful member of the Allegany bar, which was composed of men of much more than ordinary ability and learning-of such men as William G. Angel, Martin Grover, Luther C. Peck, George Miles, Samuel S. Haight, and others. A bar within whose pale John Young, of Livingston, John B. Skin- ner, of Wyoming, Selden, of Rochester, Howell, Cru- ger, and Hawley, of Steuben, often appeared. The firm of Diven, Hathaway & Woods soon became one of the most prominent and successful legal firms in the State. It continued in successful operation fifteen years, and was dissolved by the death of Colonel Hathaway.


Colonel Hathaway represented Chemung county in the Legislature of 1842-43. In the session of 1842, the subject of State finances engrossed the attention of both branches of the Legislature to a large extent. On the part of many there was a bitter and determined hostility to the prosecution of the public works: and this winter a law was passed which suspended the public works, and imposed a direct tax, pledging a portion of the canal revenues as a sinking fund for the extinguishment of the public debt. Azariah C. Flagg was then comptroller. He was an able, me- thodical, keen, and sagacious financier, a warm per- sonal and political friend of Colonel Young, who was distinguished for his antagonism to internal improve-


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ments. It has been said that the State was indebted to Mr. Flagg for whatever evil flowed from the famous measure known as the stop and tax policy. But Colonel Young was really the originator of that policy. On the 25th of April, 1839, as chairman of the Senate Committee on Finance, he presented to that body his celebrated report. It was able, logical, scholastic. It denounced, in the most bitter and sarcastic manner, the existing system of internal improvement. As it was generally read by all parties, it accelerated the growing hostility to the prosecution of public works, and led to the enactment of the great stop law.


"Should a quack doctor," said Mr. Young, in his re- markable report, "propose to his patients that he would duly open their veins and feed and nourish them with their own vital fluid, they would probably ask him whether it would be more nutritious after having passed through his hands than it was at present ; and whether it would be an 'internal improvement' to suffer the pain of reiterated venesection and pay his fees besides ? But if the quack should go a step far- ther, and propose to apply their blood to the use of others, or to the benefit of the favored few, then the cheat would be obvious. When a State empiric, how- ever, urges the same process upon this great com- munity ; when he proposes to fix the tourniquet of law upon the body politic, and make a deep incision into the jugular vein, causing a depletion of forty millions of its wealth, thousands of robbers known as corporators, are prompt to applaud the experiment, to hold the bowl and to adjust the bandage."


· On this financial and internal improvement ques- tion the Democratic party were divided. Colonel Young, Mr. Flagg, Mr. Barker, Michael Hoffman and others favored the stop and tax policy, while Mr. Sey- mour, Mr. Bouck, Mr. Croswell, Mr. Beardsley, and many other distinguished Democrats, opposed it. Of course the Whigs threw their strength where it would most distract and divide the Democratic party.


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In politics, Colonel Hathaway was a Democrat. He inherited his political faith from his father. His attachment to the Democratic party might have been expressed in the strong and beautiful language of the daughter of Moab, "Thy people shall be my people, where thou diest will I die, and there will I be buried."




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