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 34
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It will be remembered that one of the great ques- tions of that campaign was the annexation of Texas ; the Democrats favoring and the Whigs opposing, principally because it would extend and perpetuate slavery. Mr. Sibley dwelt with great eloquence upon this point, and in the course of his remarks spoke of Mr. Clay as the embodiment of the Whig party, the great exponent of its principles. On the 16th day of July, 1844, Clay wrote his celebrated but unfortunate Alabama letter, in which, among other things, he said: "I have, however, no hesitation in saying that, far from having any personal objections to the annexation of Texas, I should be glad to see it," &c.
Late in the evening before the debate, through a
,
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friend direct from New York, Mr. Van Buren re- ceived the National Intelligencer, containing this letter. He immediately regarded it as a powerful weapon to be used in the coming contest, and such it proved to be. Mr. Sibley, who addressed a meeting the day before, in a remote part of the county, came to the discussion entirely ignorant of the existence of the letter.
In his reply to Mr. Sibley, Van Buren said: "Fel- low citizens, Mr. Sibley has told you that the annex- ation of Texas will extend and perpetuate slavery, and this is the only ground upon which he is opposed to the annexation of that great and fertile country. He tells you, too, that Mr. Clay is the great exponent of Whig principles, the embodiment of the party. I admit it. No more truthful remark has this day fallen from the lips of my accomplished and able opponent; and now let us see what the great embodiment himself says." He then read that memorable letter to the audience. The effect which it produced can better be imagined than described. Notwithstanding the powerful elocution of Mr. Sib- ley, in which, with consummate ingenuity and ability, he explained the terms, connection and real meaning of the letter, still it had a most damaging influence upon the Whigs. The Democrats retired from the discussion jubilant and exultant, confidently be- lieving that a tide was setting in which was to lead them to victory. And they were right.
Mr. Van Buren continued at Penn Yan until the fall of 1856, when he removed to Chicago, where he still resides. Such were the business facilities which awaited him there, that he immediately entered into a large and extensive practice, which in its pecuniary results and the popularity to which it led, much ex- ceeded his most sanguine expectations.
In April, 1862, he was elected a judge of the Re- corder's Court of Chicago. He discharged the duties of this ofice to the satisfaction of the public, during
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his term. He was offered a renomination, but he de- clined, preferring the duties of his profession to the cares of office.
Mr. Van Buren always enjoyed pleasantry, wit, and repartee. He could relate an anecdote with great piquancy, and relished a joke, even at his own ex- pense.
A case once occurred which tested the manner in which he was a party to a laughable transaction.
One day, in returning home from his office, he stopped at his boot-maker's, put on a pair of new boots which had just been finished for him, wrapping the old ones in a piece of brown paper, and went his
way with the boots under his arm. As he passed along, he observed a brace of fine chickens for sale. He purchased them, and they too were done up in a brown paper wrapper. With the boots and chickens under his arm he proceeded towards home. Presently he met a darkey whom he knew.
' Here, Sam," said he, " don't you want a pair of boots-pretty good ones, too ?"
" Yes, sah," said the darkey, with a grin.
Handing the boots to the gentleman of color, he went on. In a few moments he met a friend, with whom he stopped to talk.
" What have you there, Judge ?" said the friend.
" A very nice pair of chickens, which I just now bought," was the reply.
"Chickens," said his friend, taking hold of the bundle; "queer chickens, I should think."
" Yes," said the judge, "they are very large and nice ones."
"They are not chickens."
" What in the world are they ?" was the reply.
Upon that remark, the judge, who began to feel somewhat astonished at the remark of his friend, opened the bundle, when, lo, he was still in possession of the old boots, and the darkey had gone away re- joicing with the chickens.
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" Well," said the judge, " I am a pair of chickens the poorer, but the darkey has gained what I have lost."
In the language of another, "Judge Van Buren is always the kind, large-hearted, and hospitable gentle- man, and in his intercourse with the world, frank, friendly, and sociable. In the enjoyment of a liberal competence, derived from a successful but laborious professional career, we trust there are many years of happiness and usefulness remaining for him, and that his days may be extended to the longest possible limit."
DUDLEY MARVIN.
Scene in the Court Room at Batavia in 1827 .- Dudley Marvin and John W. Hurlbert. -Description of them .- Their Persons and Characters as Lawyers .- Marvin's Birth and Parentage .- A Student at Colchester Academy .- His Taste and Abil- ities .- Amusing Anecdote .- In Danger of Expulsion .- The Imprisoned Professor. -Marvin before the Faculty as a Culprit .- The Defense .- The Witty Turn .- The Discharge .- Marvin Refuses to Declaim .- Interesting Conversation with Dr. Hawks, regarding the Choice of a Profession .- Marvin visits Canandaigua .- Enters the Office of Howell & Gregg as a Law Student .- His Admission to the Bar .- His First Case .- Manner at the Bar .- Remark of B. Davis Noxon .- His Manner of Cross-examining a Witness illustrated in the Trial of the People v. Newman .- Interesting and Amusing Cross-examination of a Lady .- The Case of the People v. Bostwick-Amusing Incident .- Result of the Trial .- Marvin Elected to Congress .- His Career in Congress .- His Dislike for Public Speaking. -His Reception at a Convention in Canandaigua .- The Vote of Thanks .- Amus- ing Speech of a Constituent .- Marvin is Compelled to make a Speech .- Has an Application for a Law Student .- Rare Qualifications of the Proposed Student .- Doubting Scene between J. C. Spencer and Marvin .- Doubt if you Dare .- Spen- cer Prosecuted .- Marvin Retained as his Counsel .- The Trial .- Extract from Marvin's Speech .- The Result .- Marvin again in Congress .- His Report on Manufactures. - Celebrated Case of the People v. Gray .- Marvin Appointed by the Governor to assist the District-Attorney .- Prisoners apply to him to defend them .- The Short but Prophetic Reply .- The Trial .- Its Singular Result .- Hos- mer's Remarks Concerning it. - Marvin's Connection with the Anti-Masonic Trials .- Trial of Ganson .- Examination of the Stage Driver .- His Final Answer True .- Marvin Removes to Chautauque County .- Attempted Assassination of Lowrey .- Marvin Engaged in the Great Trial of the People v. Newman .- The Trial .- The last important Case in which he is Engaged .- Retires from the Bar .- His Habits .- Elected to Congress .- His personal appearance more fully de- scribed .- His Characteristics .- Mark H. Sibley .- Amusing Business Transaction between him and Marvin .- Death of Marvin.
" WHO is that rather large, portly man, with such a fine eye and head, not far from Mr. Chandler, in the bar ? He must be a lawyer, I think ; at least he looks like one, and a good one, too."
This remark was addressed to a law student who sat next to the speaker in the court house at Batavia, one morning in June, 1827, during a session of the
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Circuit Court. The business of the day had not yet commenced, though the lawyers, jurors, witnesses, and spectators had assembled.
"That is Dudley Marvin, of Canandaigua, one of the most eminent lawyers in the State ; he is eloquent, witty, sarcastic or pathetic, as the occasion requires," said the student.
" And that is Dudley Marvin ; I have often heard of him as a famous advocate, but I never saw him until now. Who is that small man, dressed in black, with dark eyes and hair, and such an expressive face ; the one who is sitting by himself at the other end of the bar ?'
"That is John W. Hurlbert, of Auburn ; he is as gifted, though perhaps not as close a lawyer as Mar- vin. As a criminal lawyer, he has no equal in the State. I have heard him address juries on several occasions ; at times his small form seemed looming up to the proportions of a giant, with the big glowing thoughts he uttered," was the reply.
"John W. Hurlbert ? he is the lawyer who de- fended Medad Mckay on his last trial, and he cleared the Indian chief who was tried at Bath for shooting Stephens, near Hornellsville. I have heard that he made everybody in the court house cry except the sheriff, and he was obliged to cough several times to keep on the stern look which he felt himself obliged to assume; and I believe Hurlbert defended Mary Green for murdering her own child, did he not ?" asked the first speaker.
" Yes," replied the student, "I heard that trial. Heavens, what a talk he made to that jury ! His lan- guage, his gestures, and his whole appearance were full of sincerity and candor, he spoke so touchingly of the poor girl's misfortune (he always calls crime a misfortune, when he is defending a criminal) that the hearts of the jury opened and let him in. When once there he remained. But when he came down upon the witnesses against her, who, as he contended, de-
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sired her conviction to subserve certain vile purposes of their own, I never listened to such terrible, such scathing language; it seemed as though his tongue was a two-edged sword, and the witnesses criminals on trial, instead of Mary Green. It was amusing to see them endeavor to brave it out, and appear uncon- cerned, but they might as well have undertaken to disregard the thunders of Jove."
" Well, what did the jury do ?"'
" What did the jury do ?" said the student. "Why they acquitted the woman almost as soon as they were organized, though more than half of the community where she lives, believed her guilty, and they would like to hang little Hurlbert, as they call him, for saving her ; but he did his duty I suppose, and no more."
The conversation was here interrupted by the crier making the usual morning proclamation. It truthfully describes the appearance and the popularity of two eminent and highly distinguished lawyers of the past.
In many respects their minds were similar ; both of them too often indulged in the pomp and glare of rhetoric-redundancy and excess of ornament. Both minds glowed with the fires of intellect and imagina- tion ; though perhaps they acquiesced too readily in first thoughts, and came to their conclusions by a rapid and penetrating glance, instead of verifying their impressions by a close and vigilant induction. Yet it was impossible not to be impressed with their rare qualities. Mr. Marvin, however, possessed the additional capacity of illustrating common thoughts and subjects, with beauty and interest, of explaining them with a grace which gave them new force, vigor, and vivacity ; a rare quality in a speaker-the secret of success in a writer.
As deep, reasoning, logical, emotionless lawyers, neither Marvin, nor Hurlbert compared with John C. Spencer, Marcus T. Reynolds or Nicholas Hill, when before the court in banc; but before the jury, the former were the superiors.
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Mr. Hurlbert and Mr. Marvin were at Batavia on the occasion which has been referred to, as opposing counsel in the important case of the People v. Bost- wick and Graves, which will be described hereafter. This sketch, however, is devoted to the life of Dudley Marvin.
He was born at Lyme, New London county, Con- necticut, on the 6th day of May, 1786. His father, who was a respectable merchant, placed him, when twelve years of age, at the Colchester seminary. Here he soon attracted the attention of his fellow students and his teachers, as a boy of the highest promise ; the precocity with which some of his men- tal powers were manifested, might be regarded as extraordinary. Subservient to his early taste, how- ever, he surrendered much of his time to poetry, belles lettres and mental philosophy. He also devel- oped some of those exhaustless stores of wit, vivacity and humor, for which he was afterwards so distin- guished.
Among the many anecdotes that are related of his student-days, the following will illustrate his native sagacity and wit :
On one occasion, with the aid of a less gifted class- mate by the name of Sabin, he imprisoned a certain irritable, prying, pug-nosed professor of mathematics, in one of the distant rooms connected with the semi- nary, where he was compelled to remain five or six hours-until he made night hideous with his cries for relief. Terribly enraged at this indignity, the pro- fessor commenced the work of detecting the culprits, threatening instant expulsion to the guilty ones. Young Marvin, who was keenly watching the move- ment of matters, fearing that some confession might be extorted from Sabin, instructed him, when sum- moned before the faculty, to make no confession, and to answer as few questions as possible. In due time both Marvin and his companions were ordered to appear before the dreaded tribunal. Sabin was at
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first terribly frightened ; as soon as he received notice to appear, he rushed into Marvin's room, exclaiming :
"O dear ! O dear ! I shall break down! I know I shall ! Old Hunks (ain't he properly named, though ?) he'll look right through me. I can't lie !"
"Lie, you fool. Nobody wants you to lie. You don't know enough to lie, so don't undertake it. Say as little as possible ; don't say anything if you can help it. I'll take care of you if you will only do as I tell you ; so don't be frightened," said Marvin. Sa- bin, becoming more composed, promised to do as he was directed, and in a few moments they were in the presence of the assembled faculty.
Sabin was first interrogated, but so faithfully did he obey the instructions of his friend that nothing of importance was elicited from him, though his manner in some measure confirmed the suspicion against him. Then came Marvin's turn, and he was plied with all manner of questions, which he managed to answer so adroitly that nothing positive was estab- lished against him.
"Marvin," said the pug-nosed professor, in his peculiar, snarling manner, "this great crime, sir, my cruel imprisonment-it makes my very blood boil to think of it, lies between you and that young man," -pointing to Sabin-"and now what have you to say to that, I should like to know."
"I am delighted with what you have said, Pro- fessor," said Marvin.
"And so you glory in your iniquity, do you ? What do you mean, sir ?" said the excited tutor.
"I mean that I am delighted to hear you say that the great crime of which you speak lies between Sabin and myself. I was only fearful that you suspected it laid on one or both of us," said the student, with a ludicrous composure.
This answer was equivalent to the ablest defense. It convulsed all in the room with laughter, except the astonished professor, who looked like an old-fash-
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ioned exclamation point, in italics-a mark of wonder, surprise, and, in this case, indignation. Marvin and his friend were acquitted ; even the sharp eyes of Doctor Hawks, the preceptor, twinkled with merri- ment, as he pronounced their discharge.
One of the rules of this institution required the students to declaim, at least once in two weeks. It is remarkable that Marvin, who was so distinguished in his future years for his eloquence, should persist- ently refuse to comply with this rule. He was once urged by a blatant, mouthing, and conceited profes- sor of elocution to attend one of his oratorical displays, and he replied in the language of Hamlet, ""'O, it offends me to the soul, to hear a robustious, perriwig pated fellow tear a passion to tatters,-to very rags-to split the ears of the groundlings ; who, for the most part, are capable of nothing but inex- plicable dumb show, and hideous noises.' Professor, do you recite Hamlet much in your exhibitions ?"
A few days before Marvin left Colchester Seminary, Doctor Hawks, who was much attached to him, in- quired what occupation he intended to follow.
" I think of studying law," was the reply.
"Studying law ? why, Dudley, you will never succeed as a lawyer ; you have no capacity for public speaking, and without that, you cannot succeed at the bar," said the doctor.
"I have persuaded myself that I have some qual- ifications for a lawyer, and as for oratorical power, I shall get on quite well with that, I have no doubt. I do not believe there will be any difficulty in telling to others that which has been closely impressed upon my own mind. The great question with a lawyer should be, to learn something to talk about, before he undertakes to talk."
"But Dudley, can't you conceive of a man's knowing more than he can explain? Have you not known persons who had splendid ideas, but no lan- guage to communicate them ?"
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"That often happens, but the reverse is more frequent. There are students here, and men every- where, who have more language than ideas, more talk than thoughts. Hence the truth of the old poet,-
" ' Distrustful sense, with modest caution speaks, It still looks home and short excursions makes, But rattling nonsense in full vollies break.'"
"A most sensible answer, young man. Why, you can talk, and to some purpose, too. You are as voluble as you are sensible. I like your ideas. He who attempts to speak in public, or write for the public, without research or ideas, is like a soldier firing blank cartridges-very noisy and very ineffect- ual. I think, Dudley, you may as well turn lawyer. There may be a small matter of honesty in the ques- tion, but you will get along with that. I am a minis- ter, and have always thought that honesty and lawyers-well, never mind what I thought; go ahead and be a lawyer, Dudley, and be as honest as you can and be a good lawyer."
After leaving Colchester, he was induced to ac- company a gentleman on a tour through western New York, in the course of which he visited Canandaigua. Here he remained some time, making the acquaint- ance of the late Judge Howell and John Gregg, then distinguished lawyers, composing the eminent firm of Howell & Gregg. He perfected an arrangement with these gentlemen for pursuing his studies in their office ; and in October, 1807, was regularly entered as a student at law.
Such was the progress which he made in his studies, such was the capacity and skill which he exhibited as a special pleader and draftsman, that his preceptors proposed to pay him a liberal salary, provided he would agree to remain with them until admitted to the bar. To this he consented, and he remained with them until September, 1811, when he was called to the bar.
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" What of all things is the best ?" asked Chilon of the Oracle.
"To know thyself, and the laws that govern thee," was the reply.
The most frequent obstacle to the success of law- yers is forming too exalted notions of law, as a system of acquired, practical dexterity, and too humble notions of it as mental energy, logic, reason, learning. Hence, there is a wide distinction between a lawyer, skilled through the medium of research and learning, and the dexterous, shrewd, cunning practitioner who, with no systematic knowledge of the law, yet in a certain sphere becomes successful, because he is simply sharp. With the one, we have the idea of strength, sagacity, power ; with the other, small cunning, arch trickery, and all the devices of the mere empirical sharper.
When Dudley Marvin came to the bar his legal acquirements were of the highest order; in all things pertaining to his profession, except experience, he was an accomplished lawyer. Immediately opening an office at Canandaigua, he commenced practice in that village. About this time he was retained to defend a case brought by his early friend and preceptor, Judge Howell. On the trial he exhibited much acumen, knowledge and skill, but extended to his eminent op- ponent all the amenities and professional courtesy which characterize a liberal mind.
When the evidence was closed, he entered upon the duty of addressing the jury. Up to this period no one at Canandaigua had ever heard him attempt any oral effort. On this occasion his manner was so natural, so self-possessed, his case so thoroughly pre pared, that he gained much in reputation as a lawyer, and he passed rapidly into a successful practice. Within a very few years he was distinguished through- out the State for those powerful and ofttimes thrilling speeches at the bar, which were regarded as specimens of consummate legal authority.
His manner at the bar was generally dignified and
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courteous, though occasionally, when ruffled or dis- pleased, he was uncivil-even rough. He spoke with great deliberation but with ease ; when excited, he spoke more rapidly. His speeches were usually short, bril- liant, and impressive. He spoke with the force of a man confident of great powers; possessed of ample materials, he pronounced his opinions with authority, and expected his hearers to qualify and apply them. His extreme subtlety of observation rendered him pow- erful on cross-examination-he probed to the quick - he penetrated to the bottom of the subject, and yet he seldom left a sting in the mind of the witness.
The celebrated advocate and eminent civilian, B. Davis Noxon, of Syracuse, once remarked that, "Dud- ley Marvin is the strongest lawyer on the cross-exam- ination that I ever met, because he himself never gets cross."
This was illustrated in the trial of the important and memorable case of the People v. Newman, at Mayville, many years ago. The prisoner was indicted for stabbing a prominent merchant one evening as he was entering his own gate. One of the principal ques- tions in the case was the identification of the prisoner. For this purpose, the prosecution introduced. a very sensible and prepossessing woman, about thirty years of age, who testified very closely to matters tending to connect the prisoner with the offense. Marvin, who was on the defense, had learned that the woman was living with a man who was not her husband, a fact which was unknown in the community where she re- resided. Aware that this circumstance alone would not destroy the weight of her testimony, he shrewdly de- cided not to touch that matter, but laid a plan to im- peach her memory, which would, if successful, be a very strong point against her evidence.
Commencing with that plausible manner so natural to him, he asked her if she distinctly remembered the circumstances which she had related on the direct ex- amination.
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" Certainly I do, sir," was the prompt reply.
" Madam, is your memory good ?"
" Yes, sir, very."
"May I ask you if it is as good in recollection of days and dates as it is in events ?"
"It is equally correct in both cases, sir."
"Is it as good in the recollection of the counte- nances of persons ?"
"I think it is, sir."
" Well then, madam, can you recollect the date of your marriage to the man with whom you are now living ?"
The witness reflected a moment, then replied that she could not remember the exact date. The question was shrewdly answered.
"Can you remember about the time, madam ? Not to be very particular, can you tell me what month of the year it was ?"
The lady saw she was caught, but rather than dis- close the manner in which she was living, did just what Marvin expected she would, answered that she could not remember even that circumstance, and she was permitted to leave the stand. Nothing could ex- ceed the chagrin of the counsel for the prosecution at this utter failure of one of their most reliable witnesses.
The case of the People v. Bostwick and Graves, which has already been mentioned, was one of the most important criminal cases in which Mr. Marvin was engaged. The defendants were highly respect- able citizens of Auburn, who were connected with one of the great lotteries then in existence in the State. A heavy prize had been drawn by a citizen of Genesee county. The defendants having retained, under some rule of the concern, a per centage on the amount drawn, an action in equity was commenced against them to compel a specific performance of the condi- tions under which the ticket was purchased. In swearing to the truth of their answer to the bill filed, perjury was charged. As it was sworn to in Genesee
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county, they were duly indicted there, and, as we have seen, Messrs. Marvin and Hurlbert were retained, the former to aid the prosecution, and the latter, with Michael S. Myers, Esq., of Auburn, to defend.
Such was the anxiety of the complainants to con- vict the defendants that Marvin had been retained at a heavy expense, a large portion of his fee having been provided for by subscription. In the course of the trial the sheriff of the county was introduced as a witness for the people. Hurlbert ascertained that the sheriff was a subscriber to this fund.
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