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 35
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"Sheriff," said he, on the cross-examination, "are you not considerably interested in favor of the people in this case ?"
"No, sir, not much."
"Did you not subscribe, with others, towards rais- ing the money to fee Mr. Marvin ?"
"I object to that question, if your honor pleases," said Marvin ; "it is irrelevant."
"I understand that my friend has strong personal reasons for his objection, and out of consideration for him I shall waive the answer," replied Hurlbert, with great gravity.
Marvin, a little puzzled, cast a quick glance at the solemn face of his opponent, and fearing the jury would believe matters much worse than they really were, said :
"I shall insist upon an answer to the question-I desire the answer."
" Ah, I see-I see now; I was mistaken at first, but I see now that the counsel has very strong reasons for desiring the answer, and it may be answered. I am happy to aid the counsel - very happy. Go on, sheriff."
"Happy to aid me, sir? What do you mean ?" said Marvin.
"Why, the counsel is fearful that the sheriff will deny his signature to the subscription when pay is demanded of him, and my friend proposes to extort a
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confession from him here, in open court, that will bind him to it. Well managed, Mr. Marvin-exceedingly well managed, sir; you have really got the sheriff now ; he'll be obliged to help pay your fees, sir. I congratulate you."
It was difficult to tell which felt this sharp cut most keenly, Marvin or the sheriff; but the laugh which ran through the court-room told how much it was enjoyed by the bench, the bar, and the spectators ; and for once, Dudley Marvin had nothing to say.
The trial consumed several days-each point was closely contested, and each day the interest in it in- creased.
At length the evidence was closed, and the counsel prepared to address the jury ; it was a case which elicited all their intellectual powers, and afforded a rich mental treat for those who were fortunate enough to be present.
One of the counsel was struggling "to protect an outraged community against a dark and insidious crime, easily perpetrated, but difficult to detect." The other was laboring "to protect innocence from an undeserved punishment, to disentangle unsuspecting worth from the meshes of craft, subtlety, and a dis- honest complaint."
After the arguments of counsel, the jury listened to the charge of the judge, and then retired for de- liberation.
An hour elapsed, and they returned into court with a verdict of not guilty. Thus ended one of the most interesting criminal cases ever tried in the county of Genesee.
Though Mr. Marvin had little taste for politics, yet it was impossible for him to stand entirely aloof from the political excitement which surrounded him. Very early in life he identified himself with the Federal party, and he continued true to its fortunes until it was merged in another organization.
In the year 1823 he represented the twenty-sixth
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Congressional district in Congress. At the opening of that session, Mr. Clay and Mr. Barbour, of Vir- ginia, were rival candidates for speaker.
The former was chosen by a vote of 139 against 42, exhibiting his great popularity at that period. Mr. Marvin, who had long been a friend and admirer of Mr. Clay, warmly sustained him in this contest, and that great statesman recognized his abilities and friendship by giving him a respectable position on three important standing committees in the House.
One of the questions before Congress that session, was the modification and revision of the then existing tariff. The debate in the House on this question created great interest in the nation. It was continued through several weeks. Mr. Marvin, however, occu- pied the floor but once during the discussion, and then only for the brief period of a half hour; but brief as were his remarks, he established his reputa- tion as an able and accomplished debater. Like many successful speakers, conscious of their powers, he seldom claimed the attention of the House. It was a remarkable feature in his character, that when at home it was next to an impossibility to persuade him to address a popular assemblage; and what renders such refusal still more singular, whenever he did ap- pear before the public as a speaker, he never failed to captivate and charm his audience.
It is related of him that soon after his return from one of the sessions of Congress, a convention assem- bled at Canandaigua, consisting of his political friends. In the course of its proceedings, a resolu- tion was unanimously adopted, approving of the course of the Hon. Dudley Marvin in Congress. Mr. Marvin was not present, but a committee immediately waited upon him, gave him a copy of the resolution, and invited him to address the convention. He ac- companied the committee to the court-house, where the convention was sitting. On entering the room, he
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was received with cheers, and then loudly called up- on for a speech. He immediately arose, and in a few words expressed the satisfaction which the resolution gave him,-acknowledged the deep obligation which he felt himself under to his generous friends who had so highly honored him,-and took his seat.
This meager speech from an orator so celebrated, fell rather coldly upon the enthusiasm of the conven- tion. For a moment there was a dead silence in the room. Suddenly one of the delegates, a venerable farmer from the town of Bristol, arose, and turning to him, said :
"See here, Mr. Marvin, this won't answer. We have sent you to Congress, because you are a first-rate man to represent us there. We've just told you that we are satisfied with what you have done; but we want you to tell us how you did it, and how the af- fairs of the nation look down there for our side. I'm not one of them that likes to hear a speech on all oc- casions, especially from those that are always talking. Now we want some account of your stewardship from your own mouth. Now, gentlemen of the conven- tion, I propose that Mr. Marvin address this assembly, and if he refuses to do so, then I propose that we re- scind the vote of thanks we have just passed."
Once more cries for " Marvin !" "Marvin !" rang through the room. He obeyed the call, and delivered a speech which was highly gratifying to his constit- uents.
During one of the recesses of Congress, he was engaged in the trial of a cause which created consid- erable interest. At the conclusion of one of those appeals for which he was so famous, the court ad- journed for dinner. On reaching the door of the court room, he was accosted by a man who said he wished to talk with him a moment.
"Well, I will hear you," said Marvin.
" I have a boy whom I want you to take and make a lawyer of," said the man.
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"How old is he ?" asked Marvin.
"He's eighteen year old, stout and rugged ; he's got a pair of lungs like a bellows," said the man.
"That is very well as far as it goes. Has he any other qualifications ?" asked the lawyer.
"Yes sir, he's got the one great qualification of all," was the reply.
" Well, what is that ?"
"Why, good heavens ! Mr. Marvin, he's the con- foundedest liar in our town. If that ain't a big qual- ification for a lawyer, then I don't know. I thought when I heard you in the court room just now, that it wouldn't take long for Sam to come pretty nigh up to you," said the man.
Marvin assured him that his son's qualification might bring him to the bar, for a short time, before he was aware of it, and for that reason he thought the boy would get along without any of his help, and thus the matter ended.
The Canandaigua bar at this time consisted of such lawyers as Spencer, Sibley, Worden, Wilson, How- ard, Gregg, Norton, Strong and others, all of whom possessed more than ordinary abilities.
In speaking of John C. Spencer, Marvin often said : "Spencer was constituted for a lawyer, just as some men are constituted for mathematicians or as engineers, &c. He is all lawyer, and whatever intel- lectual effort he attempts, has the stamp of the law- yer upon it. If he should undertake to talk, or, as the saying is, use his liberty, in a religious meeting, he would give a disquisition on reversionary interest, contingent remainders or resulting trusts, by way of illustrating the rewards of just men made perfect."
Though Spencer was less vulnerable to the keen sarcasm of Marvin, than many others; yet even he was often the victim of a sharp repartee, which gave the former a decided advantage in a contest.
This was once illustrated in a case in which they were opposed to each other. In the course of the
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trial, an argument on some legal question occurred, in the course of which, Marvin asserted very strongly a certain proposition, and concluded by saying, that it was undoubted authority.
"I doubt it, I doubt it," said his opponent.
"Well, doubt, if you dare take the consequences," said Marvin.
" What are the consequences, sir?" asked Spencer.
"Why, he that doubts shall be damned," was the quick reply.
The color of Spencer's face proved that the shaft had taken effect.
In the year 1819, after a bitter political contest, in which Mr. Spencer had been very active, he was prosecuted by some opposing partizans, in an action growing out of matters which occurred during the campaign. The case was planned with singular skill, and prosecuted with great determination and ability.
As the consequences of defeat would be ex- tremely disastrous to him, he had some cause for alarm, though really no cause of action existed against him. After mature deliberation with his friends, Dudley Marvin was retained to try the cause for him.
It was understood that Spencer was to plan the defense, and that Marvin should conduct it at the bar without the least assistance from any person.
On the day of trial, Mr. Spencer, attended by his counsel, entered the court house, in the character of a defendant ; taking his seat in the bar, the trial com- menced. Though opposed by Elisha Williams, who withheld none of his great legal abilities, never did Marvin appear to better advantage; never did he evince more indubitable evidence of his commanding powers as an advocate, than on this occasion.
His invective against the partizan malice which instigated the action was most withering.
" Gentlemen," said he, "I can excuse the heat and anger engendered by party strife. I am ever wil-
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ling to palliate some vituperation on such occasions, for forbearance at such times, is due to the weakness of human nature, to the excess of sudden passion. But I cannot excuse that bitterness which outlives the occasion-merges into cool and calculating revenge- erects its fiery crest-hisses forth its venom-pursues with its scorpion sting, private character and domes- tic peace, seeking the law as a means of vengeance, with all the dark malevolence-with all the hideous attributes of the assassin, without the assassin's courage."
The defense of Mr. Marvin was triumphant, and resulted in the utter defeat of Mr. Spencer's enemies.
But to return to his Congressional life. During the Congressional session of 1825, although one of the most energetic and laborious members of that body, he seldom mingled in the debates which occurred in it. As the second on the committee to whom was referred the investigation into the amount of duties paid on imported woolen goods, and into the con- dition of the woolen manfactures of the nation, in the absence of the chairman, Mr. Penston, of Penn- sylvania, Mr. Marvin submitted an elaborate and able report, which Mr. Mallory, of Vermont, in, the succeeding session of Congress, as chairman of the Committee on Manufactures, asserted aided him mate- rially in preparing his report on the "alteration of the acts imposing duties on imports," commonly called the " Woolen bill."
It is certainly safe to say, that Mr. Marvin's career in the eighteenth Congress, if it was not brilliant, was highly creditable to him, and as an indication of the satisfaction which it gave his constituents, he was unanimously renominated to represent them in the succeeding Congress.
With the close of the nineteenth Congress, he re- retired from the political field to the duties of a private citizen.
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In the month of October, 1829, the celebrated trial of Richard and James Gray occurred at Batavia. The defendants had been indicted for the murder of Harvey Davis, an innkeeper at Le Roy, New York. The accused were father and son. This fact, and the singular circumstances attending the homicide, created intense interest, rendering it one of the most important cases ever tried in the county of Genesee.
Levi Rumsey, a very reputable member of the Ba- tavia bar, was then district-attorney. The case was so important that the governor was solicited to send the attorney-general to assist the prosecution. That officer having another engagement, the governor di- rected that Dudley Marvin should be retained in his place ; and Mr. Rumsey immediately wrote to him in obedience to the instructions of the executive.
Before receiving this note, he had been written to by the friends of the Grays, inquiring on what terms he would undertake their defense; and accordingly he replied to the district-attorney by saying that he could not give him a definite answer until he heard further from the prisoners. Thus the matter rested. In the mean time, he happened to be at Batavia on business. The Grays, learning that he was in town, sent a friend to him for the purpose of ascertaining precisely what his charge would be for undertaking their defense.
"Two hundred and fifty dollars and expenses," was the reply to the Grays.
The agent repaired to the jail for the purpose of repeating this answer. He soon returned.
"Well, Mr. Marvin," said he, "they say you charge too much, and that they will be hanged if they will pay any such sum."
"Very well ; tell them they shall have their choice, for they shall be hanged," was the reply.
Accordingly, he accepted the retainer of Mr. Rum- sey. The trial took place, and one of the defendants -the son-was convicted of murder, and executed ;
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while the father was convicted of manslaughter, and sentenced to the State prison during his natural life.
The prosecution of this case involved the difficult task of grouping and combining a mass of apparently incongruous and unimportant circumstances, a close and critical examination of several difficult and tech- nical legal questions, and of drawing from unwilling witnesses circumstances within their knowledge. But with the perseverance, fidelity and pertinacity of an explorer after some occult truth-some fascinating mystery - Marvin followed the prisoners through every labyrinth of the law, through the devious wind- ings of the circumstances, until he fixed upon them the sure and certain mark of blood-the indubitable evi- dence of their guilt.
His address to the jury was powerful, convincing, and eminently successful. Like Webster, in the trial of the younger Knapp, he was accused of convicting the prisoners by the force of his eloquence alone, by a brilliant and powerful radiation of light on remote and doubtful circumstances.
The prisoners were defended by George Hosmer, then in the midst of his professional success. His de- fense was one of the most powerful ever made by that eminent lawyer. In speaking of this trial in after years, Mr. Hosmer remarked that "it was not the evidence that convicted the Grays; it was Marvin's thrilling and terrible appeal ; it was so overpowering that nothing could withstand it. Such efforts misdi- rected, or directed against innocence, are fearful, and I have sometimes thought that a public prosecutor of such abilities should not be permitted to appear where the prisoner's guilt is doubtful."
Some time after the execution of the young man, circumstances were developed which indicated that the father alone was guilty.
Mr. Marvin was connected with many of the im- portant . and exciting trials resulting from the abduc-
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tion of Morgan. One of the most important was the defense of Ganson, a wealthy stage proprietor, at Bata- via, who was indicted for being concerned in the re- moval of Morgan. Marvin conducted the defense in this case. It appeared in evidence that one of the defendant's coaches was used for the purpose of the abduction, but by whose authority or direction the coach was thus used, did not appear, though a pow- erful effort was made to connect Ganson with the matter.
The person who drove the stage was placed upon the stand.
"Who gave you the way bill, that night ?" asked the public prosecutor.
"I don't remember."
"Who was in the coach when you started from Batavia ?"
"I think there was three men; one of them, I think, was Morgan."
" Who shut the coach door ?"
"I can't tell."
"Did you receive directions from any person ?"
There was an objection to this question, but the court allowed the answer.
"Yes ; somebody told me to drive like hell, for there was a man inside that was bound for that place."
"Did you obey orders ?"
" I think one of the men went through," was the reply.
This was all that could be elicited from the driver, and as there was no proof that Ganson had any knowledge that Morgan was in the coach, he was acquitted by the jury.
Mr. Marvin continued to practice his profession until the year 1835, when he removed to the city of New York, formed a partnership with William Austen, Esq., an accomplished lawyer, and commenced the practice of law in that city under many advantageous circumstances. His reputation preceded him, and he
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immediately took a high position as an advocate at the New York bar. He continued to practice with increasing success, until he became engaged in a cer- tain patent right, which for a time promised much success, and even wealth ; this attracted his attention from his profession, and his practice began to decline. At length his patent right failed, causing the loss of large sums of money and many of his clients. His friends in the city offered to guarantee that his prac- tice should be re-established, provided he would re- main in the city. For a time he proposed to do so ; but certain interests which he had in lands in the county of Chautauque, rendered it necessary for him to remove there.
Accordingly, in autumn of the year 1835, he be- came a resident of Ripley, in that county. Here, he did not design to devote much time to his profession ; but so high was his reputation as a lawyer, that re- tainers came to him from all parts of western New York.
Among the important cases in which he was en- gaged at the Chautauque bar, was that of the People v. Newman, tried in Mayville, in January, 1846.
Newman had been indicted for attempting to stab Nathaniel A. Lowrey, a prominent citizen of Chautau- que county, in November, 1845.
On the evening before the election of that year, Mr. Lowrey left his store for his residence ; on reach- ing his gate, a man, whom he supposed to be New- man, came up with him, accosting him with the ac- customed salutation, "Good evening." The next instant he received a blow from the man, who, in giving it, stumbled, and partly fell, and at the same time dropped something upon the walk; recovering himself, he ran rapidly away.
On entering his house, Lowrey discovered that he was bleeding profusely from a wound in his side, made with some sharp instrument. Recollecting that he heard something fall upon the walk, he caused
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search to be made for it, which resulted in finding a large heavy knife, having a two-edged blade, which was covered with blood.
It was soon ascertained that Newman owned a knife similar to this; but it was also known that one of the merchants in the village once had a package containing a dozen of these knives, which had been disposed of to various persons about the country.
One of the most embarrassing questions for the prosecution, was the entire absence of motive in the mind of Newman for the commission of so fearful a crime, or, indeed, for the commission of any act of violence against Lowrey. However, some slight proof tended to establish the fact that the accused . committed the crime at the instigation of other par- ties, enemies of Lowrey, now out of the jurisdic- tion of the court. But the principal question in the case was that of the identity of the prisoner. The whole case, however, created a legal contest seldom equaled in western New York.
The prosecution was conducted by Abner Hazleton, a distinguished member of the Chautauque bar, then district-attorney, and subsequently county judge of that county, assisted by Richard P. Marvin, now one of the justices of the Supreme Court for the eighth judicial district, and John B. Skinner, of Buffalo. Mr. Marvin was assisted by the late Judge Mullett. Seldom do the records of our State courts present such an array of distinguished and brilliant lawyers as appeared on the trial of this case. Seldom has there been a case which so thoroughly stimulated them to the exertion of their every faculty. During a whole week, the court-room at Mayville was the scene of a close, able, and at times thrilling contest, each side contending with a determination which would not brook the idea of defeat. At length, after addresses of almost unparalleled ability from the respective coun- sel, the jury retired. A lengthy deliberation followed, and they returned into court amid the most breathless
-
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silence from the vast crowd of spectators present, and rendered a verdict of guilty.
This was the last case of any importance in which Marvin was engaged; other matters claimed his at- tention and drew him from the bar, though he could not entirely emancipate himself from the claims which his old clients believed they had upon him.
Previous to his removal to Ripley, he became some- what dissipated in his habits; he was one of those genial, social, pleasing, gifted persons, upon whom the blight of intemperance naturally falls, leaving the cold- hearted, the callous, and the sordid, to that negative virtue, which, while it is commendable, possesses none of those heroic qualities which inspires him who with lofty sentiments, generous emotions, and liberality, unites many faults, which require fortitude, self-de- nial, and philosophy to overcome.
Whenever the genial sunbeam falls upon rich and generous soil, noxious weeds will spring into existence with useful and ornamental vegetation, while in the cold shadows of the rock, in the arid sand, all may be pure and free from weeds, but no beautiful flowers spring up to spread their fragrance through the sur- rounding air-no luxuriant fruit gives pleasure, hap- piness, and benefit to man.
When Mr. Marvin became fully aware of his dan- gerous condition, he suddenly resolved upon reforma- tion, and he sternly and heroically carried that reso- lution into effect. He united with the Presbyterian Church, at Ripley, and from that event, through the remainder of his life, he exhibited the example of an undeviating Christian.
In the autumn of 1846, he was elected by the Whigs of the thirtieth Congressional district a rep- resentative in Congress. Early in December, 1847, he delivered a speech on that part of the president's message which referred to the Mexican war. Some of his remarks, particularly those in connection with the question of slavery in the territories, will long be
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remembered as almost prophetic, and imbued with an astonishing prescience.
After serving through the session of 1847-8,-dis- charging his duties with great ability and exactness, - he retired from the cares of office, and from the politi- cal field, to the duties of private life.
Dudley Marvin was, as has already been stated, above the middle size, rather portly, but with a figure finely proportioned. His countenance was indicative of his gifted mind-handsome, open, and intelligent. He had a remarkable presence, in which dignity and urbanity combined. One of his talents, the one which most distinguished him in private life, was a rare turn of pleasantry, which was delicately ironical, and which tinged his vast fund of anecdote with a most pleasing interest.
He was fond of the society of literary men, with whom he always felt himself at home. He was deeply read in history, ancient and modern, posess- ing a critical and refined taste. His favorite poets were Spenser, Shakespeare, and Ariosto. He used to say of Pope, that he was the most Roman of all the British poets, and the least offensive in his Ro- manisms.
With the odes and satires of Horace, he was per- fectly familiar, from which he often, in his speeches and conversation, made natural and pleasing quota- tions, among which was the following : "Prometheus was obliged to add to that original clay with which he formed mankind, some ingredient taken from every animal, and, thus he applied the vehemence of the raging lion to the human breast; and hence," said he, "we have soldiers, warriors, laws, and-law- suits, &c."
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