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 31

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 31


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The night of the 23rd of October, 1812, was fixed upon as the time for the movement. Accordingly, on the evening of that day, Marcy, at the head of one hundred and seventy picked men, cautiously left the American camp and moved towards the foe. The moon went down before the troops began the march ; the fitful blasts of an October night swept moaning and chilly across the St. Lawrence ; amid darkness and silence, the men moved sternly on their perilous errand. So cautiously were they compelled to march, that it was midnight before they reached St. Regis. The enemy, unconscious of their approach, were wrapped in slumber, except the sentinels. The guard on the outposts were suddenly overpowered and disarmed by scouts, who sprang upon them ere their approach was discovered ; and Marcy's troops moved so near the works of the enemy, that the tread of the sentinels on duty there, could be heard.


It had been ascertained that two sentinels guarded the main entrance to the fort; by overcoming these, the passage way would be free for the Americans to enter. Halting his men, the young officer, accom- panied by three soldiers, crawled on their hands and knees towards the entrance. At length they reached


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a point where a portion of the wall jutted out in a sharp angle but a few feet from the entrance; from this projection Marcy and his men sprang upon the sentries, and they were quickly disarmed. During this short struggle, a musket was discharged, which aroused the garrison, and brought the American troops to the assistance of their commander. In an instant the door was broken open, and the assailants rushed into the fort. The British received them with a scattering volley of musketry, and then prepared to defend themselves with the bayonet, swords and clubbed muskets. For a few moments the contest was fierce and desperate; but the superior numbers of the Americans prevailed, and the whole garrison were soon prisoners of war-the first prisoners cap- tured in the war of 1812. Several Americans were wounded; three British soldiers were killed, and many others wounded in the attack.


The brilliant manner in which this expedition ter- minated, was regarded by the nation as a favorable omen for the Americans, while Marcy and his brave associates received the thanks of their commander and the plaudits of the people. A song, descriptive of the occasion, was composed, set to appropriate music, and sung throughout the country, inspiring the young men with military ardor.


Several stands of arms and a flag were captured. The latter was presented to Governor Tompkins, and it is still preserved as a relic of the war of 1812, and an evidence of the gallantry of him who captured it.


The taking of St. Regis brought Lieutenant Marcy to the notice of General Dearborn, who soon caused him and his command to be attached to Colonel Pike's regiment, then with the main army, which for a time, was encamped at Champlain.


In the month of November, 1812, Colonel Pike moved with his command against the works of the British on Le Colle river, but they were so strongly


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garrisoned that he was disastrously repulsed, with considerable loss in killed and wounded.


During this attack, a body of hostile Indians, who occupied a position in a small ravine on the right of our troops, greatly annoyed them while moving to the attack. Colonel Pike ordered Lieutenant Marcy with his company to dislodge them. He obeyed, and in a few moments he gained a point from which he was enabled to open an enfilading fire on the savages, which he did so suddenly and effectually, that a deadly volley was poured upon them before they were aware of the approach of the Americans, sending them howling from their position, leaving many dead and wounded on the ground. But this successful movement did not save Pike's command from defeat, although his attack on the works was gallantly and vigorously made.


Young Marcy was advanced to the rank of captain. He continued in the service until the period for which he enlisted expired, when he returned home and re- sumed the practice of his profession. But during his absence his clients had sought other lawyers; his business was gone, and he was compelled to com- mence life anew ; though many of his old clients re- turned to him, his professional progress was slow ; though he was somewhat studious, he lacked that in- dustry and energy which is so necessary for a young lawyer who is just commencing his practice ; be- sides, he was never delighted with the details of office practice, and he did not relish the contests of the forum.


Those who knew him at this period, describe him as a person who was careless in his dress, whose boots were strangers to polish, whose hair, to say the least, never appeared in "Hyperion's curls," and who would be regarded by strangers as a dull and inactive person.


His office was directly opposite the female semin- ary of the late Miss Emma Willard. It was sur-


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rounded by a sort of veranda, to which there was a railing. Here, in pleasant weather, the young lawyer was in the habit of sitting, with his feet on the railing, watching the gambols of the young ladies on the play- grounds, or engaged in reading. Though he was wanting in those exterior qualities which constitutes what is called a ladies' man, his society was by no means distasteful to the fair sex, especially those who had the penetration to understand his real character, and to appreciate his abilities.


Among the more advanced pupils of the seminary, was a young lady from Massachusetts, an heiress, very beautiful, and very pleasing in her manner, ac- complished, intelligent and talented - one whose "happy and innocent heart sparkled in her face." For some time there had existed a respectful friend- ship between the lady and the young lawyer. She was pleased with the graces of his mind, the variety of his knowledge, and the superiority of his intellect. There was a charm in his conversation which uncon- sciously revealed the mental powers of the future statesman. There was no romance in their friendship -no affair of the heart mingled with it. Though their meetings were not frequent, and there was nothing in them to attract attention, yet a rumor at length reached Miss Willard that the lady was secretly re- ceiving the attentions of Mr. Marcy. As such things were strictly forbidden by the rules of the institution, it became her duty to investigate the matter, which she did ; but as she discovered nothing to confirm the report, the matter was dismissed from her mind, though occasionally the rumor would be repeated to her.


One day, the young lady obtained permission to visit Albany with some relations who had called upon her. Some time after her departure, it occurred to one of the pupils, who had interested herself in the affair to quite an extent, that, although the day was pleasant, the lawyer was not in his accustomed place.


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She learned, on inquiry, that he had not been seen there that day. Her curiosity and suspicions being thus aroused, it caused her to make further inquiry, and she learned that he had accompanied the young lady and her friends to Albany. As such matters lose nothing by repetition, it was reported "that Mr. Marcy and the lady had eloped for the purpose of be- ing married." The rumor ran like wildfire through the institution, and soon reached the ears of the faculty. The whole seminary was soon the scene of unusual excitement ; then indeed "there was hurrying to and fro"-consternation was on every side. Cupid had found a lodgment within those walls dedicated to science alone ; one of its fairest inmates had yielded to his witchery, and fled to the bowers of love.


The fugitives were immediately pursued. The lady and her friends were found at a hotel at Albany, quietly enjoying themselves ; but, to the surprise of the pursuers, Marcy was not present; he had not even been seen by any of them that day.


It happened that shortly after the lady and her friends left Troy, Mr. Marcy, having business in Al- bany, proceeded to the city alone by stage. Having transacted his business, he returned at an early hour, to the surprise and astonishment of the citizens, who had learned of his elopement with the pretty heiress. His own astonishment was unbounded when he learned of the commotion which he had uncon- sciously caused in the seminary, especially when he learned that during the day, throughout the city, it was believed he had absconded, having a clandestine marriage in view ; that he had abandoned the law for Gretna Green.


Nothing could exceed the chagrin of the pursuers, on learning how sadly they had been deceived; and for a long time the affair caused much merriment. None enjoyed the joke more than Mr. Marcy and his fair friend.


At length the lady graduated and returned to her


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friends, retaining the highest esteem for the young lawyer, who she often predicted would make his way to fame. In the course of time, she married a highly respectable gentleman, who, while Mr. Marcy was in the Senate, was often at Washington. As the lady accompanied her husband, Mr. Marcy renewed his acquaintance with the Troy school girl of other days. She was now an elegant, accomplished, and fascinating woman, and he a senator in Congress, ranking with the great and illustrious of the nation.


"This is Hon. William L. Marcy, with whom I once eloped. I trust you will forgive him, as you have me, for it was only an indiscretion of our youth," said the lady, on the introduction of her hus- band to Mr. Marcy.


That elopement was the subject of much mer- riment in the society at Washington in those days.


The business of Mr. Marcy gradually increased until he attained a very respectable and remunerative practice. Though not a brilliant advocate, he was a strong and an effective speaker at the bar. There was a steady firmness in his arguments founded upon pre- vious deliberations, a well poised judgment, forcible and to the point-sustained and enriched by a perfect and systematic knowledge of the law.


One of his distinguishing qualities was his power as a writer; few men wielded a more vigorous pen than he. His intellect was. fertile, his reading exten- sive, his powers of analysis were strong, and he pos- sessed an intellectual magazine which furnished every material for the pen of a ready writer.


A series of articles published by him over the sig- nature of Vindex, attracted the attention and gained the admiration of the public. He strongly sustained the administration of Governor Tompkins, and the measures of the Democratic party. The intuitive force of these articles-the skill with which facts, circum- stances, and arguments were marshaled in them, 26


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caused the public to suppose that "Vindex" was some gifted and experienced statesman.


While William L. Marcy was thus sustaining Mr. Tompkins in the east, the pen of John C. Spencer was another powerful supporter of his administration in the west.


Mr. Marcy's versatile abilities as a writer-the in- fluence of his articles with the public, created a desire on the part of his friends to promote him to some offi- cial position ; accordingly, he was appointed recorder of the city of Troy.


At this period, Martin Van Buren was just enter- ing on that splendid sphere of political action and in- fluence through which he attained the chief magistracy of the nation. His judicious and penetrating mind early perceived that Marcy's abilities would be no ordinary support to the Democratic party, and to him, as one of its leaders ; he therefore took an early opportunity of making the acquaintance of the young lawyer. This acquaintance soon ripened into an inti- macy which continued through life.


With Mr. Van Buren, Marcy, in 1817, reluctantly supported De Witt Clinton for governor. He had not yet attained that caution-that wary skill-that subtle policy which constitutes the successful politician, and, dissatisfied with the administration of Governor Clin- ton, he openly proclaimed his sentiments and his friendship for Mr. Van Buren. This conduct, in the winter of 1818, nearly caused his removal from the office of recorder. But the threatened removal, how- ever, did not abate his zeal for his friend, or his hos- tility to Clinton ; the same indomitable adherence to his principles which caused his expulsion from the academy at Leicester, resulted at length in his re- moval from the office of recorder. This was one of the earliest cases of political proscription known in the political history of the State.


His removal from office now compelled Mr. Marcy to rely solely upon his profession for a livelihood.


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But his mind was fascinated by the detail of politics, and he could not emancipate himself from the de- mands which his party made upon him. In 1819-20, in the endeavors of Mr. Van Buren and his compeers to remove Mr. Clinton from the Republican party, the talents of Mr. Marcy were exceedingly useful to his political friends, and he became one of the leading politicians of the State. The opponents of Mr. Clinton in the State having, in 1819, organized under the name of the Bucktail party, Mr. Marcy wrote the celebrated address of the members of that party in the Legisla- ture. Few political documents of that character bear the indubitable evidence of ability and research of that remarkable paper. Its dignified diction, its keen, subtle criticism of Mr. Clinton's measures, its appa- rently disinterested surrender of all personal advan- tage or ambition in the proposed ostracism of Clinton and his friends, with few of those mercenary opinions which often characterize such productions, did not fail to exert a powerful influence which nothing but the high popularity of Mr. Clinton could have withstood.


This address was soon followed by a pamphlet en- titled "Considerations in Favor of the Appointment of Rufus King to the Senate of the United States ;" which was equally as powerful as his legislative ad- dress, though not so adroitly written.


At the extra session of the Legislature of 1820, held in November of that year, a Republican Council of Appointment was elected. One of the first acts of this body, after its organization, was the appointment of Mr. Marcy to the office of adjutant-general of the State.


The duties of this office, entirely ministerial in their character, were performed with the most scrupulous exactness and promptitude, but they gave him no op- portunity to distinguish himself.


In his efforts to procure the passage of the act au- thorizing a Convention to revise the Constitution, the abilities of William L. Marcy again exhibited them-


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selves, and his influence aided in the final passage of the act. After the adoption of the new Constitution, in the year 1823, John Savage, then comptroller of the State, was appointed chief justice of the Supreme Court. This left the office of comptroller vacant, and Mr. Marcy was brought forward, in the caucus of the Republican members of the Legislature, as a proper person to fill that vacancy. But though warmly and even bitterly opposed by Samuel Young, John Cramer and others, who preferred General Talmadge, yet, through the influence of Mr. Van Buren and Governor Yates, Mr. Marcy was nominated by a large majority. On receiving the appointment of comptroller, he removed to Albany.


"The office of comptroller, always an important one, had now become particularly so in consequence of the large expenditures on the Erie and Champlain canal, and the increase of the State debt. The busi- ness capacity of the new comptroller was put to the severest test, but so faithfully and skillfully were his duties discharged that no opposition was offered to his reappointment in the winter of 1826. He found the finances of the State in a prosperous condition, and it was no fault of his if they were less so when he surrendered the office into other hands. He intro- duced many improvements in collecting and disburs- ing the public funds, and the State is indebted to him for the present admirable system of tolls, and disburs- ing them."


While comptroller, Mr. Marcy became identified with the "Albany Regency," which for many years controlled the Democratic party of the State. In the exciting political events of 1824-26, he distinguished himself for his activity. In 1824 he sustained Mr. Crawford for president, and in 1826 he gave his influ- ence in favor of Judge Rochester for governor, against De Witt Clinton.


In 1828, he was one of those who aided in the nom- ination and election of General Jackson to the pres-


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idency of the United States, and as a consequence gave Mr. Van Buren great ascendancy in the polit- ical affairs of the State of New York.


One of the complaints made against President Jackson was, that he did not possess sufficient learn- ing and ability to write his own messages; that the dignified and able State papers which were nominally the work of General Jackson, were really written by Mr. Van Buren ; and a certain member of Congress, now no more, made the statement that he had exam- ined the original manuscript of his first annual mes- sage, and that it was in the handwriting of Mr. Van Buren. What is still more singular, when the admin- istration of Jackson had passed away, and Mr. Van Buren occupied the presidential chair, the serious charge was made against him that he had not ability sufficient to write his messages, and that they were written by a distinguished member of his cabinet ; that some of his state documents were written by Mr. Marcy. There were few abler writers in the State than Mr. Marcy, and perhaps from this fact it was supposed that he was the author of some of those brilliant and able documents that were issued during the exciting and memorable discussion of the affairs of the United States Bank.


In December, 1828, Judge Woodworth resigned his seat upon the bench of the Supreme Court, where he had served with credit and ability since January, 1819. Judge Woodworth was a resident of Albany, and at the time of his appointment was one of the leading lawyers of the Albany bar, eminent for his learning and skill as a lawyer. Distinguished for his profundity and judicial accomplishments, he was one of those who gave to the old Supreme Court that em- inence which commanded the respect of the nation. Those who knew him best were surprised that a lawyer of his commanding position did not receive the nom- ination for chief justice.


On the 15th of January, 1829, Mr. Marcy was


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nominated by Governor Van Buren an associate jus- tice of the Supreme Court. He was duly confirmed, and immediately entered upon the duties of his office. His appointment was exceedingly satisfactory to the bar of the State, which entertained the highest respect for his qualifications as a judicial officer. "He pos- sessed a highly philosophic mind, united with the most ample stores of history and jurisprudence. His reflective powers predominated, and to a stranger, as well as to those who knew him intimately, he had the appearance of a man in deep thought. With inflexible honesty, he united an impartiality which rose above every influence and adjusted to all occa- sions. There was nothing either affected or repul- sive about him ; and if ever a man existed who would more than any other have scorned the pitiful fopperies which disfigure the worth of Cato, or shrunk from the harsher virtues of Brutus, it was he."


Soon after his appointment, he was directed by the governor to preside at a Special Oyer and Terminer, held at Lockport for the trial of the alleged murderers of William Morgan. Prominent among those who were charged with complicity in that mysterious affair, was Colonel Ezekiel Jewett, the commander of Fort Niagara, when Morgan was confined in it. At the period when the trial occurred Anti-Masonry had become one of the elements in the politics of the State. This, of course, rendered the position of the presiding judge one of great delicacy and difficulty. But al- though a politician from his childhood, and up to the period of his appointment to the high judicial posi- tion which he then occupied, ardently engaged in pro- moting the prosperity of one of the great parties in the State, yet few men were better qualified to hold the balance between political excitement and the inflexi- bility of the laws than he.


When Colonel Jewett came to the bar for trial, there was one individual who knew, or was supposed to know, the full extent of his guilt. This was Orsa-


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mus Turner. He was duly subpoenaed as a witness, and amid the most profound and breathless silence he took the stand ; the vast audience assembled believed the hour had come when the fate of William Morgan was to be revealed to the world, and his murderers punished by those laws which they had so fearfully outraged.


John C. Spencer, who had labored with untiring zeal-had devoted the strength of his mighty intellect to the task of unmasking this great offense -- but as yet with little effect, now believed that his hour of tri- umph had come. With calm emphasis the witness answered the preliminary questions which were put to him. But when the inquiry touching the guilt of the accused was propounded, a paleness overspread his features, with a rigid determination his lips closed, a look of unflinching obstinacy shot from his eyes, and no further answer could be extorted from him. The silence of the witness gave a deep and painful interest to the scene-an interest which almost suspended the respiration of many in the court-room, producing those emotions which are always experienced while watching a person who is known to be in the act of bringing upon himself some fearful doom, and who is calmly and deliberately awaiting his fate.


Presently the almost smothering silence was broken by the deep voice of the judge saying, in a voice and tone which none but William L. Marcy could assume,


"Witness, are you aware of the consequences of your refusal to answer ?"


"I am," was the firm reply.


"Witness, it is not only upon you but upon society, that the evil consequence will flow from your refusal ; and once more the court will give you an opportunity of saving yourself from the consequences of your rash obstinacy."


The question was repeated by Mr. Spencer. The faint flush which overspread the face of Turner as the question fell upon his ears, was the only response to


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the question. Another momentous silence followed. It was momentary, however, just long enough to indicate that the witness did not intend to answer.


"Sheriff," said the judge, "convey the witness to the common jail, keep him in solitary confinement until you are directed to discharge him by the court."


That officer approached with his assistants, and through the densely crowded room, Orsamus Turner was conveyed to the dungeons of Lockport jail. Long and weary was his confinement, but with that con- finement his obstinacy increased, and as he never answered, the fate of Morgan was never revealed, but by uncertain rumors ; and if murdered, his assassins escaped the punishment due their crime, leaving them to answer that dread Being who has said, "Thou shalt not kill."


The chief distinguishing feature in the character of Judge Marcy, was his ability as a judicial writer. The late David Woodcock, of Ithaca, a distinguished law- yer, and an eminent representative in Congress, once remarked, that "William L. Marcy's style as a legal writer is not excelled by any judge in America ; that what was more commendable in him, he did not lose sight of the substance, in the style." Perhaps there may have been deeper and closer reasoners, but there have been few who threw more light upon the point they sought to illustrate-few who could render the point they sought to establish more distinct.


The language of Marcy, like that of Burke, was calculated to make men think. "Chatham could rouse the fancy of the multitude and wield their physical energy as he pleased ; while Burke carried conviction into the retired and lonely student." Here, perhaps the analogy ends between Burke and Marcy, for the power " which governed the mind of the former was imagination," while Marcy was wanting in imagination and fancy. But he united


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the two extremes of refinement and strength; his writings were confined to the themes of wise law- givers, reasons of the law, and those considerations which relate to the civilian and legislator.


It was Judge Marcy's fortune to pronounce the opinion of the court in the great case of the People v. Mather, reported in 4 Wend. 229. This was another case growing out of the abduction of Morgan. Mather was tried as one of the abductors of Morgan, at the Orleans circuit, in November, 1828, before Hon. Ad- dison Gardner. After a very protracted trial, he was pronounced not guilty by the jury, and the special public prosecutor moved for a new trial, on the grounds of the misdirection of Judge Gardner. Whether a new trial could be awarded in a criminal case for the misdirection of the court where there has been an acquittal was then unsettled ; nor was it settled in that case, although the court went so far as to say that "if the power exists at all, it will not be exercised unless it is reasonable to infer that the ac- quittla was induced by such misdirections." Though many of the points in this case were reviewed in the learned and elaborate opinion of Judge Woodworth in the case of the People v. Vermilyea, yet very many new, and until then, unsettled doctrines were consid- ered and decided by Judge Marcy in the People v. Mather, which renders his opinion in that case one of the ablest in our reports.




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