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 23

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 23


Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).


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He possessed thought, vehemence, fire, mirth, and wit. Though the ground on which he trod was that of legislator, lawyer, and logician, "he delighted to pluck the flowers that sprang spontaneously in his path, while he trampled in disdain the far-fetched and tawdry exotic." A sharp and polished sarcasm was at his command, which, like the spear of Ithuriel, often exhausted the force of an opponent's argument, with singular facility. Yet he was dignified, gentle, conciliating, often commanding and imposing. He entered ardently, but consistently, into the consider- ation of the great questions before the Legislature. He took a statesmanlike and liberal view of the inter- nal improvement and finance question, and coincided with Dickinson, Seymour, Beardsley, and Croswell.


On the 5th of February, 1842, Colonel Hathaway delivered a speech in the Assembly on the internal im- provement and stop law, then pending before the Legislature, which won the highest commendation and applause from all parties. In portions of it he went far above politics and parties. He spoke of the sacred duties, and the awful responsibilities of the Legislature. He boldly rebuked legislative abuses and errors which had passed current for years. This speech was delivered with a clearness of reason, a variety of illustration, a felicity of diction, and a glowing imagery which at once stamped him a suc- cessful orator, who was master of his subject and him- self ; finally, it "blended instruction with delight."


"There should," said Mr. Hathaway, "be an honesty of purpose in this matter. All questions here should be absorbed in that of the general wel-


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fare, and the advancement of the interest of our great State. What are politics or party compared to this great question ? When, sir, it comes to be understood that politics is a game, and that those who engage in it but act a part subservient to their own aggrandise- ment, that they make this or that profession, not from an honest conviction, or from any intent to fullfil them, but as a means of deluding the people, and through that delusion to acquire power or wealth ; when such professions are made only to be entirely forgotten, the people will lose confidence in public men ; the politician, aye, sir, and the legislator, will be regarded as a mere juggler-the honest and the patriotic, as well as the cunning and the profligate- and the people will become indifferent and passive to the grossest abuse of power, on the ground that those whom they elevate, under whatever pledges, in- stead of reforming, will but imitate the example of those whom they have expelled."


Such was the language and such the sentiments of Mr. Hathaway in 1842. Did not his words have a pro- phetic meaning ? Have not the people become indif- ferent and passive to the grossest abuses of power ? Who can deny that the symptoms of the present day indicate a deep and growing propensity to regard all matters of legislation as measures of private specula- tion and advancement ? Rich and powerful corpora- tions are constantly petitioning the Legislature, both State and national, for franchises, privileges and im- munities, which enable them to disregard all indi- vidual rights, and at length to defy the Legislature it- self.


This indifference to the great evils of which Mr. Hathaway spoke twenty-eight years ago, has been in- creasing down to the present time ; but, however dor- mant and stupid the people now are, the time will come when they will awaken with terrible earnestness to the dangers that surround them.


In the fall of 1842, Colonel Hathaway again con-


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sented to accept the nomination for member of As- sembly ; he was triumphantly elected, and took his seat in that body in January, 1843. Mr. Bouck had been elected governor, and was inaugurated on the first day of January, 1843.


Notwithstanding the great victory of the Demo- cratic party in the election of 1842, it was evident that a collision between the two factions of that party was inevitable. It was soon ascertained that Colonel Young, Mr. Flagg and others, of the Radical side of the party, would submit to no compromise which did not recognize their right to control all party ma- chinery - while, on the other hand, Mr. Dickinson, Seymour, Beardsley, Croswell, and others, held a po- sition equally uncompromising. Of course, this ren- dered the position of Mr. Bouck one of great difficulty and embarrassment. The governor was not a great man ; his chief distinction was not talent, although he had fine powers of intellect, a capacity of attention, a thorough knowledge of men and their relations. He could easily understand their preferences and preju- dices, a faculty which, in usefulness if not in splendor, often surpasses genius. His primary char- acteristic, however, and that which gave him peculiar weight and influence, was the force of moral principle -a force which, with him, operated with the steadi- ness of a law of nature, and which suffered no portion of his life to be wasted. He was a self-made man, a true representative of American institutions and privi- leges. He early learned to appreciate and value the talents and ability of Mr. Hathaway. Upon national politics, and upon some questions of State policy, the Democrats were united. Mr. Davis, of Troy, was elected Speaker. His election was, in some sense, the result of a compromise between the factions. As a tribute of respect to Mr. Hathaway, he was made chairman of the Judiciary Committee, a position which his talents eminently qualified him to occupy.


During the winter of 1843, Colonel Hathaway in-


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troduced a bill into the Legislature modifying the stop law of 1842. This bill provided for the comple- tion of the unfinished public works in the State. An immense sum of money had already been expended upon these works, and at this time they were in va- rious degrees of progress ; some of them were nearly completed. The bill was drawn with great care and prudence, and united every element of conciliation. It was strongly supported by many of the ablest Democrats in the House. Mr. Hathaway, in a speech delivered in favor of it, clearly, ably and liberally re- viewed the whole question of the stop policy, and in- ternal improvements. His allusion to the report of Colonel Young on this subject, was exceedingly happy.


"The author of that report," said Mr. Hathaway, " is a fierce dogmatist, armed with a splendid intellect, a bold, gigantic pen, a beautiful sophistry, over which the pinching and narrow policy of the miser presides. He is the Saul of Tarsus of the times, exceedingly mad at the great improvements of the day, and breathing out vengeance against them. He should, however, study the signs of the times, and wait the descending inspiration of coming events. It is unfor- tunate for the country that he has so many adherents in this House, who are wasting their voices like Baal's prophets, in crying to dumb elements, or sleeping Pantheistic gods, while others are going about like well-meaning but over-slept watchmen calling the hours of midnight, while the morning is paling their lanterns."


He successfully demonstrated that the damages re- sulting from this suspension would equal, if it did not exceed, the cost of completing the public works. But such was the prejudice of the majority against their prosecution or completion, that Mr. Hathaway's bill was defeated. The position taken by him and his friends on this question, however, has been fully sustained by subsequent events.


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The legislation of that day, on the subject of in- ternal improvements, was governed by the same nar- row policy which always springs into existence in the light of improvement and advancement. It was like the ceremony of Galileo's abjuration of his "system of the world ;" " when that master spirit of his age- that high priest of the stars-that representative of science-that hoary sage, whose career of glory was near its consummation-was compelled to bow before ignorance and prejudice-before a mistaken respect for errors which had become venerable from their an- tiquity-before the assembled cardinals of Rome- pledging himself that he would never again teach the doctrine of the world's motion and the sun's stabil- ity." But although he was driven back from his splendid theory, in shuddering admiration, yet its truths have become immortal.


Thus, the question of internal improvement has passed into manifestations of success, from progress to progress, until distance between the Atlantic and Pacific is annihilated, and through a continent the two oceans hear each other's voices. But all improvement is a victory won by struggle. It is especially true that those great periods from which we date the most rapid movements of the human mind have been signal- ized by conflict. Men of natural softness and timidity of character stand appalled before the energies of great and progressive minds.


Mr. Hathaway was no exaggerator, no enthusiast ; he had the capacity of distinguishing what tended to the public good, and he possessed the courage to sus- tain his conviction of the right, even at the expense of an ephemeral popularity. Hence, as a legislator he considered himself as the servant of his constituents, whose duty it was to advance and promote their in- terest. After retiring from the Legislature in 1843, Colonel Hathaway declined another nomination, and applied himself to the practice of his profession. While discharging his legislative duties he became connected


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with certain speculations, which subsequently resulted very favorably for him, and which, with the large in- come he derived from his profession, soon placed him in affluent circumstances.


After leaving the Assembly Mr. Hathaway never held any political office, except that of supervisor in the city of Elmira ; yet he was regarded as a prom- inent leader of the Democratic party in the State, and he was often termed "the Democratic War-horse of the Southern Tier." In the fall of 1856 he received the nomination for Congress in his district. Honor- able J. M. Parker, of Oswego, was the opposing can- didate. But as the Democracy in the district was hopelessly in the minority, he was of course defeated. He was again nominated in 1862, while in command of his regiment in Virginia. This nomination was made without his knowledge or consent. He was op- posed by Colonel R. B. Van Valkenburg, the Repub- lican candidate, who was elected. Absent as he was, and unable to give the canvass the least attention, still he was strongly supported, receiving a vote which was highly complimentary and flattering to him. The love and devotion of his political friends were cheering and grateful to his heart, were acknowledged all his life, and were recognized even to the day of his death.


For many years Colonel Hathaway was principally engaged in the various courts in which he practiced. He was a powerful and successful advocate, and pos- sessed the real powers of a legal orator. He was often irresistible before a jury. Frequently, when a cause seemed hopelessly lost, he would, by a sudden thought -a skillful change of procedure-turn defeat into vic- tory. Hence his greatest strength as a lawyer was before a jury ; and yet he could successfully conduct a close legal argument. He could be successful in those cases where the law is illumined by nothing save the beauty of logic, the power of reason and the force of analysis. "He could detect the sophistries, dissi- pate the obscurities, obviate the doubts and disen-


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tangle the subtleties in which zealous ingenuity in- volved a case. In the trial or argument of a cause he always controlled his temper. But meanness, treach- ery or fraud, touched by his sarcasm, started into their naked deformity. Often affectation and hypocrisy would writhe under the lash of his irony."


But usually, his arguments were conducted with a direct and sober earnestness, and so framed as to con- vince rather than amuse. Though frequently per- sistent and importunate, in urging his points before a court, yet his courtesy and ready wit protected him from anything like arrogance or impudence. It is re- lated of him, that upon one occasion, while engaged in the trial of an important case, before a distinguished judge with whom he had always been on terms of great intimacy, he offered certain evidence, to which the counsel opposed objected. The judge sustained the objection, ruling that the evidence was inadmis- sible. But Hathaway was not thus easily to be dis- posed of, and he made a desperate struggle to give the evidence to the jury.


"Will your honor allow me to state another reason why I deem the evidence proper ?" said he.


"Certainly," said the judge, and the reason was given with great ingenuity and force.


" Still I think the testimony should not be received, even in that view of the case," said the judge, stating the grounds upon which he founded his opinion.


"But perhaps there is another view of the case, which if your honor will allow me to suggest it, may obviate the difficulty in your honor's mind," said the colonel.


"I will hear you," said the judge, "although it is clear to my mind, that the testimony cannot be re- ceived in any point of view."


Hathaway presented a new theory as to the admis- sibility of the evidence, explaining his position at some length. But the judge was inflexible, and or- dered the counsel to proceed with the cause.


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"I am so confident that this evidence should be received," said the persisting counsel, "that I wish to be heard further."


The patience of the judge was now exhausted.


"Colonel Hathaway," said he, quite sharply ; "what do you think I am sitting here for?"


"Now your honor has got me," said the colonel, with one of his peculiar smiles.


The infinite good humor and piquancy of this reply, set the bar, spectators, and jury in a roar of laughter, in which it was difficult for the judge himself, who loved a joke, to refrain from joining. With great gravity and dignity, however, he ordered the counsel to proceed with the cause.


Mr. Hathaway disliked all pretension, conceit, and pedantry ; he had a particular hatred for all far-fetched phraseology. He was engaged in trying a case of malpractice, when a very pretentious M. D. was intro- duced as a witness against his client. While giving his testimony, the doctor removed his glasses, and as- suming a very pompous manner, said :


"Mr. Hathaway, I see, sir, that you do not under- stand the agglutination in cases of chronic perito- nitis."


The counsel made no reply at the time ; but in the course of his remarks to the jury, he said :


"Gentlemen, Doctor S- has very frankly in- formed me that I am entirely ignorant of what he calls, 'agglutination in a case of chronic peritonitis.' I really think the doctor is in the same condition him- self. He reminds me of another learned member of his profession, who, more frank than our doctor here, said to a lawyer one day : 'Esquire, I cannot com- prehend what you meant yesterday, when you talked about docking an entail.' "'


"My dear doctor," replied the lawyer, "I don't wonder at that. I will explain the meaning ; it is, doctor, doing what you never can do-it is effecting a recovery."


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It is said by De Tocqueville, in his Democracy in America, "That the special information which law- yers receive from their studies, insures them a sepa- rate station in society, and that they constitute a sort of privileged body, in the scale of intelligence. This notion of their superiority constantly recurs to them in the practice of their profession. They are the masters of a science, which is necessary, but which is not generally understood. They serve as arbiters be- tween the citizens, and the habit of directing the blind passions of the parties in litigation, inspires them with a certain contempt for the multitude." Although this is the opinion which one of the ablest and most distinguished French advocates and writers conceived of the American bar, yet it must be taken with many exceptions. The class of lawyers which came under his observation while in the United States, might justify this statement. But that class who are justly regarded as the ornaments of our bar, and of which Hathaway was a representative, are so nearly allied to the people, that they cannot arrogate to themselves any such superiority as is conceded to them by De Tocqueville. It is a distinguishing feature of the American lawyers, that they unite with their fellow citizens, in all that advances and promotes the pro- gress of society ; believing that to be distinguished and great, they must serve, instead of ruling their fellow citizens.


In person Colonel Hathaway was above the middle size. His form was well proportioned, erect and manly. In contests of the forum, in the excitement of debate, there was a lustre in his eye, an eloquence in his look, a dignity in his manner, which riveted attention. His voice was flexible, under good man- agement, and easily accommodated to the sentiment he was desirous of expressing. In hours of relax- ation from business, he was characterized by benig- nity and mildness; no one who ever met him in a friendly circle, can easily forget the attraction of his


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manner and conversation. He carried into society a cheerfulness and sunshine of soul, that rendered him a pleasing associate, a companion of inestimable value. Possessing an inexhaustible fund of anec- dotes, and an inimitable manner of relation, he never failed to delight and interest when telling them.


In the summer of 1862, Mr. Hathaway entered the service of the United States as colonel of the 141st Regiment N. Y. S. V. In the language of one of his eulogists, " It was urged upon him, that in the de- pleted state of this and adjacent counties, the regi- ment could not be filled without the imprimatur of his name. He gave it, and after having received his commission, and publicly announced his inten- tion to go to the field, eighteen companies sprang into being, as if by magic, each one striving to be one of the ten who should march to battle under the colors of Colonel Hathaway."


On the 15th of September, 1862, his regiment left Elmira and moved to the front. As soon as he de- cided to enter the service he directed all the energies of his mind and talents towards perfecting himself in military knowledge and discipline. Having, how- ever, served some time as an officer under his father, he was not without military experience. By the time his regiment was ready to move, few persons in the volunteer service were more thoroughly qualified for the field than he, evincing, that like many mem- bers of the bar, who have left the forum for the field, he could entwine the laurels of Justinian with those of the soldier .. As an evidence of his military capacity he was soon placed in command of the Second Brigade of Abercrombie's Division, as acting brigadier-general ; a position which he filled with great credit to himself and satisfaction to those under his command. With him the common soldier was as much the object of his solicitude and care as he upon whose shoulders glittered the badge of superi- ority and command. "Himself as sensitive as a


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woman, he invariably extended to others the same high-toned treatment which he demanded for him- self." Such characteristics could not fail to render him a popular commander.


But the fatigues and exposures of camp life soon produced a disease of the heart, which at length compelled him to leave the service. Early in 1863, with great reluctance, he left his regiment and re- turned to Elmira. The scene of parting with his officers and men has been described as extremely affecting. "I leave you," said he, as if speaking with a prophetic view of his approaching death, "I leave you, perhaps to die at home, far from the scenes of war and strife. But had it pleased Heaven to have directed otherwise, I could have wished for another fate ; I could have wished to have died leading you to battle and to victory. But wherever I go, in health, in sickness, in all that awaits me in life, I shall watch with unceasing interest your wel- fare as a regiment and as individuals; and when war's trials, dangers and sacrifices are over, with duties well done, that you may be gathered to happy homes in the bosom of peace, duly remembered by a grateful country, will ever be the prayer of him who can command you no more."


On many a war-worn cheek tears glistened as Hath- away rode from the camp, never again to return. On many a weary march, on many a blood-stained field, amid the harvest of death, his regiment gloriously sustained itself. But many, ah ! how many, who marched with Hathaway from their beautiful camp- ing-grounds at Elmira, fell, where showered


" The death bolts deadliest, the thinn'd files along,


Even where the thickest of war's tempest lowered."


True to their duty, true to their country, they died "upon the ark of her magnificent and awful cause ;" then let them not be forgotten ; for in their blood are laid our nation's altars. Let us remember that in


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their once happy homes a something that vibrated with joy on the heart is still, "and the magic of the voyage of life is no more."


After his return to Elmira, Colonel Hathaway placed himself under the care of a distinguished phy- sician of that city ; but as his disease had become so firmly seated that it would not yield to medical treat- ment, under the advice of his physician he sought the home of his father, in Cortland county. He arrived there in the beginning of March, 1864. He lingered, in dignified submission to that Good Being, "Who has been our refuge from one generation to another," and his submission was entire ; there was no alloy of impatience or distrust. He looked upon approaching death with the calmness of a philosopher, the resigna- tion of a martyr, the confidence and hope of a Chris- tian, whose silent communion with his God, whose secret prayers were the votive and acceptable offering of a heart and soul turned from the withering and fading scenes of the world to Him who is the fullness and source of life, thought, beauty, power, love and happiness.


Will it be said that Hathaway was not a professing Christian ? Those who knew him best, early learned that within his heart there was a spot sacred to Chris- tian ingenuousness and sincerity. But it never was polluted by pretense, by affected fervor, by cant and fictitious zeal, for he believed that truth is "an emana- tion from God, a beam of His wisdom, and as immu- table as its source." The scene of his sickness and suf- fering developed his religion, and he bowed to the will of his Maker without a murmur. "I am in God's hands, and His will be done," were sentiments which he uttered, not with commonplace and mechanical formality, but issuing, as his tones and countenance discovered, from the very depths of his heart. Thus he bore his long and painful sickness. During all his illness it was his constant wish that he might die in the morning ; and there ever came to him a soft weird


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whisper that his prayer would be granted. Was it the voice of unseen spirits hovering near-of loved and lost ones of other days, waiting for him on the con- fines of eternity ?


As the 15th day of April, 1864, drew to a close, a beautiful sunset lingered upon the landscape in front of his room. He watched it until the last rays faded away ; then whispering to those standing by, he said :


"So the sun of my life goes down, but it will rise again to-morrow."


The morrow came, and with its first bright sun- beams death came as gently, as softly, almost as sweetly as that glorious sunlight fell upon the morning air. And thus, in the fifty-second year of his age, died Colonel Samuel G. Hathaway.


He was endowed with a liberal heart-with gener- ous and high-toned sentiments-with a mind keenly attuned to every sense of honor-with a modesty that redeemed him from envy-a geniality which made him welcome in every circle. Whatever were his faults, they floated only on the surface of his character ; they could not live in the recesses of a heart like his. As the dew-drops will dim the polished surface of the Damascus blade, but leave no mark on dull, rough iron, so the polished and graceful cast of his mind made error more conspicuous in him than in coarser minds ; for, in common with all that is mortal, he had faults-perhaps many-who has not ? "Still, they are but the fragments that surround the lofty edifice in its admirable whole-the broken frieze torn from its pedi- ment, leaving still the glory and the grandeur of the Parthenon."


JOHN C. SPENCER.


Compared with Ogden Hoffman, Lord Tenterden, and Thomas Noon Talfourd .- His Intellectual Qualities as Exhibited in his Speeches and Writings .- His Man- ners .- Interview with General Root .- His Birth .- Was a Son of Ambrose Spen- cer .- The Society of his Early Years .- His Education .- Manner of his First Ac- quaintance with Dr. Nott .- His Friendship for the Doctor Exhibited at a Late Period of his Life .- Commences the Study of Law with his Father .- Character of Ambrose Spencer .- Young Spencer Appointed Governor Tompkins' Private Secretary .- Makes the Acquaintance and Gains the Friendship of President Madison .- Is Admitted to the Bar .- His Marriage .- Removes to Canandaigua .- General Peter B. Porter .- Spencer's First Experience in Housekeeping .- Ontario County in 1810 .- Mr. Spencer's First Appearance at its Bai .- His Politics .- The War of 1812 .- He Sustains Madison and Tompkins .- His Popularity as a Writer. -His Pamphlets in England .- Joins the Staff of General McClure and Enters the Service .- His Fellow Staff Officers .- Appointed United States Assessor .- Retires from the Service .- Appointed by Mr. Tompkins District-Attorney for Five Western Counties .- Amusing Anecdote. - His Name not Relished. - Spencer Elected to Congress .- Tammany Society. - Buck Tail Party .- De Witt Clin- ton .- His Life Intimately Connected with Spencer's .- Candidate for United States Senator .- Rufus King is Elected .- Spencer Elected Member of the As- sembly .- Chosen Speaker .- Compared with Calhoun .- His Career in the Legis- lature .- John T. Irving, Elisha Williams, Gulian C. Verplanck .- Legislature Adjourns amid a Storm .- Spencer Re-elected to the Assembly of 1821 .- Defeated for Speaker .- Singular Career .- Resumes the Practice of his Profession .- Clinton Dismissed from the Office of Canal Commissioner .- Public Indignation .- Alfred Conkling .- Mr. Spencer Elected to the Senate .- Heman J. Redfield .- Lieuten- ant-Governor Talmadge .- His Hostility to Clinton .- Held in check by John C. Spencer .- Anecdote .- The Secret Pamphlet .- The Discovery. - The Check .- Ambrose Spencer a Candidate for United States Senator .- Singular manner of his Defeat .- No Choice .- Nathan Sandford Elected United States Senator, next Year. -His Character .- Judge Kent .- Spencer's Professional Duties .- Holland Land Company .- Spencer's Remarkable Report upon the Title to its Lands .- Effect of the Report .- His Report on the School Question .- Political Prospects of Clinton and Spencer .- Description of Clinton's Death .- The Effect .- Spencer Appointed one of the Revisers .- Benjamin F. Butler .- John C. Duer .- Henry Wheaton .- The Labors of the Revisers .- The Statutes compared with other Written Laws. -Objections to It .- Abduction of Morgan .- Daniel Mosely .- Appointed Special Prosecutor in the Morgan Case .- Appointed Circuit Judge .- Spencer Succeeds him as Special District-Attorney .- Enters on his Duties .- His threatened As- sassination .- The Anonymous Letters .- The attempted Assassination .- Case of Mather .- Of Jewett .- Trial of the Former .- Is Discharged .- Trial of Jewett .- Is Acquitted .- Reasons Why .- Spencer's Resignation as Special District-Attorney . -Unites with the Anti-Masonic Party .- Its Leaders .- William H. Seward, Thur- low Weed, Frederick Whittlesey, Bates Cook .- Spencer's Subsequent Political Career .- Connection with the Whig Party .- Removes to Albany .- Appointed




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