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 46

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 46


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vention ; for a time it was believed that it would be adopted entire, and recommended to the people. After a long discussion, however, the judicial system which was in force until within a recent period, was adopted.


Mr. Worden justly regarded the judiciary question as one of most vital importance, and his labors upon it were unceasing. There was not a section, not even a sentence in the bill reported, which he did not ex- amine with the closest scrutiny. His experience at the bar, his general acquaintance with the people and their relation to courts of justice, eminently qualified him for the place he occupied on the Judiciary Com- mittee, which, owing to the ill health of the chairman, greatly increased Mr. Worden's labors.


Though the plan for a judiciary which was finally adopted was not in all respects what he desired, yet, as it was the best which, under the circumstances, could be obtained, he gave it his assent. Finally, the convention having completed its labors, Mr. Jones, on the 9th day of October, sent up to the chair the following resolution :


" Resolved, That the engrossed constitution be now signed by the members of the convention, as an attestation of their approval thereof, and that those members not now in attendance be at liberty to sign it at any time previous to the third day of November next."


Charles O'Conor immediately arose and protested against the resolution, and against the Constitution, particularly the judicial department, and that eminent jurist proceeded to give his reasons for his opposition in a brief but able speech, and his remarks found a ready response in the heart of the ablest and most experienced lawyers then at the bar.


He was followed by Mr. Van Schoonhoven, who, although unqualifiedly against the judiciary article in the convention, approved of the instrument as a whole, and therefore declared he should vote for it.


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ALVAH WORDEN.


Mr. Worden addressed the convention. In the course of his remarks, he said :


"Mr. Chairman-I regard this Constitution, as a whole, as an improvement in the science of govern- ment, throwing, as it does, upon the people the re- sponsible duty of keeping their own government under their own control, and of preserving and perpetuating their own rights and liberties. There are provisions in it that I should prefer to have changed ; but the principle to which I have alluded is what I desire to see carried out. I am, therefore, willing to leave this great experiment of a republican government in the hands of the people with the least possible trammels upon their free action ; and this is the true intendment and design of this instrument that we are now called upon to sign ere we part. Having framed it after much labor, in a spirit of compromise and concession, I trust, sir, we shall submit it to the people without attempting to influence their action for or against it, by pointing to this or that provision as objectionable, but that the whole instrument be left to their calm, deliberate judgment, for this judgment is the rock, the sure foundation of our republic."


After remarks from several other members, the amended Constitution was agreed to by a vote of one hundred and four ayes, against six noes-eighteen members being absent-and the convention adjourned sine die.


It was the desire of Mr. Worden, on retiring from the labors of the convention, to resume the practice of his profession, but another field of arduous labor was soon to be opened for him. By the provisions of the amended Constitution, the Legislature was em- powered to provide for the appointment of three persons to be styled "Commissioners of the Code."


Accordingly, on the Sth of April, 1847, the Legis- lature passed an act appointing Reuben H. Wal- worth, Alvah Worden, and John A. Collier, such commissioners. Arphaxed Loomis, Nicholas Hill,


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Jr., and David Graham, were, in the same act, ap- pointed Commissioners on Practice and Pleading, whose duty it was, according to the provisions of the act, "to provide for the abolition of the present forms of actions and pleadings at common law, and for a uniform course of proceedings whether of legal or equitable cognizance."


Chancellor Walworth and Mr. Collier having declined to act on the Code Commission, Anthony L. Robertson, of New York, and Seth C. Hawley, then of Buffalo, were appointed in their places.


Mr. Worden accepted the position with great re- luctance, but he entered upon the discharge of his duties with perseverance and diligence. His labors and embarrassments were enhanced by the frequent changes in the commission. But he continued to labor with all the determination of his nature, until his term of office expired.


By an act of the Legislature, passed April 10th, 1849, a new commission, consisting of John C. Spen- cer, Alvah Worden, and Seth C. Hawley, was created.


Mr. Spencer declined to act, leaving the labors of the commission to Mr. Worden and Mr. Hawley, who discharged their duties in a highly acceptable manner. At the expiration of this commission, Mr. Worden returned to the active duties of his profes- sion, where he could test in a practical manner the workings of that legal machinery which he had aided in creating.


During his official career, his large legal business had been conducted mainly by H. O. Cheesebro, Esq., his son-in-law and law partner, an eminent and able lawyer, a gentleman possessing many estimable qualities, and a leading lawyer of the Ontario bar.


Mr. Worden retired from his duties as a commis- sioner of the Code, to enter upon one of the most extensive fields of legal labor in western New York,


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where he continued actively and energetically occu- pied until his death, which occurred in 1856.


Among the heavy cases in which he was engaged immediately after returning to his practice, was that of The Farmers' Loan and Trust Company v. Carroll. This was one of the most important cases ever adjudi- cated in the new Supreme Court ; it involved a large amount of property, and many intricate and interest- ing legal questions.


The defendant had executed a mortgage to the plaintiff which was a lien upon several hundred acres of the most fertile lands in Livingston county, as the se- curity for the repayment of a very large sum of money.


It was alleged that there were certain usurious matters which entered into the loan, and made a part of the contract. This allegation formed the de- fense to the action brought by the plaintiff to foreclose the mortgage. In the course of the legal contest which followed, the case reached the general term of the Supreme Court for the seventh judicial district, where, in October, 1851, it was argued at the court house in Rochester.


Alvah Worden and John C. Spencer appeared for the defendant Carrol, and C. P. Kirkland, Esq., ap- peared for the other defendants in the action ; William Curtis Noyes and Hiram Denio conducted the argu- ment for the plaintiff. The importance of the case is sufficiently attested by the number and eminence of the counsel engaged.


The argument occupied two days, and attracted to the court room a large and interested audience. It was a scene seldom witnessed in the history of modern litigation. The vast importance of the case, and the intricacy of the question involved in it, drew out all the intellectual powers of the great lawyers who appeared there as contestants.


John C. Spencer contended that the mortgage was illegal within the restraining act. To the consideration of the question involved in this proposition, he brought


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all the great powers of a mind disciplined and enlarged by years of experience. He was suffering at the time from a temporary illness which compelled him to stand while addressing the court, supported by a chair, and in the course of his argument he broke down two chairs. As the last one gave way, he facetiously re- marked, that if his legal positions were as unsafe as his personal ones had thus far proved, his learned op- ponents could already congratulate themselves upon success.


Mr. Worden confined himself exclusively to the ques- tion of usury. He was at the time in perfect health, and his mind was never more vigorous and active. The question which he argued was peculiarly adapted to the organization of his mind ; he was at home amid all its intricacies ; he threaded its labyrinths with an ease and precision which exhibited his familiarity with them, and also his extraordinary reach of thought.


The argument of Mr. Kirkland fully sustained his relation to the case, proving him competent to assist his eminent associates.


The efforts of Mr. Noyes and Mr. Denio were ad- mitted to be consummate legal arguments, both in regard to the skill with which they were conducted, the soundness of the principles laid down, and the happy application of precedent to the case before them.


On the whole, the Supreme Court on this occasion presented a scene of forensic interest, replete with profound argument and intellectual elaboration, which will compare with those enacted in Westminster Hall in the days of Burke's and Sheridan's unparalleled success at the English bar.


The opinion in the case was written by the late Judge Wells, and it sustained the view presented by the defendants.


An examination into the professional life of Alvah Worden, is, in many respects, useful as an example to


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future lawyers ; while it exalts the character of the bar, it exhibits the result of energy, determination, and self-reliance, when applied to professional duties, and directed to the task of overcoming misfortune and rising above disappointment.


He was not a great politician, though in that sphere he was able. There was nothing of the demagogue about him, though he was skilled in the knowledge of the human heart and adroit in the management of popular prejudices and feelings. These qualities, added to a sound, discriminating mind, and to many other intellectual acquirements, always gave him weight and influence at the bar, in politics, as a codi- fier and law maker.


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EBENEZER GRIFFIN.


Called to the Bar when the Principles of Statute and Common Law were being settled by Kent, Spencer, and others .- Born at Cherry Valley .- Removes with his Father to Clinton, New York .- Enters Union College .- Reputation as a Stu- dent .- Leaves College before Graduating and Commences the Study of Law .- Admitted to Practice .- James Kent .- Commences Practice at Clinton .- Removes to Utica .- His Marriage .- Continues at Utica until 1825, when he removes to the City of New York .- His Reputation as a Lawyer .- His Practice .- Like Elisha Williams, he seemed to be Ubiquitous .- Counsel for the Defense in the Case of the Three Thayers .- In the People v. Bishop .- In the Great Case of the Bank of Utica v. Wager .- Description of the Argument of that Case .- Joshua A Spencer .- H. R. Storrs .- The Result .- The Diseased Mind .- Description of the Murder of Morgan .- Mr. Griffin Engages in the Trials Resulting from his Ab- duction .- He Removes from New York to Rochester .- His Business Relations at Rochester .- Elected Recorder of the City .- Is Counsel in the Celebrated Case of Clark v. The City of Rochester .- Opinion of Mr. Justice Allen .- The Appeal from his Decision .- Griffin's Argument on the Appeal in the Supreme Court .- Selah Matthews .- His Character .- His Reply to Mr. Griffin, in the Case of Clark v. The City of Rochester .- Dissenting Opinion of Mr. Justice T. A. John- son, on the Maxim Stare decisis .- Opinions of Judges E. D. Smith and T. R. Strong. - Mr. Griffin is Sustained by the Court .- Mr. Griffin's Relations with Governor Tompkins .- His Character as a Lawyer .- His Love of Literature .- His Favorite Authors .- His Death.


AMONG the many distinguished and gifted lawyers whose lives have elevated and adorned the bar of the State, no one is entitled to more respect and consider- ation, no one will be longer or more fondly remem- bered, than Ebenezer Griffin.


He was called to the bar at that period in the history of the nation, when the great leading principles of common and statute law were being settled-when the fabric of our jurisprudence was being framed, and its enduring corner stones laid by Kent, Spencer, Savage, Woodworth, Thompson, and their compeers.


He possessed a mental organization which qualified


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him for a successful contest in an arena presided over by such master minds. Not only were the circumstances of his early training favorable to the development of his mental powers, but the theater in which he was called upon to act was eminently propitious for their exercise. Very soon after entering the profession, he took a high and responsible position as a lawyer. The native strength and power of his mind, his great legal attainments, his high-toned sense of honor and justice, the dignified fealty which attached him to his profes- sion, rendered his influence strong and commanding in the great work of establishing the legal system of our State.


He was born at Cherry Valley, New York, July 29, 1789. While quite young his father removed to Clinton, Oneida county, New York. There Ebene- zer was brought up and prepared for college. He entered Union College, and soon gained the reputation of a close, thorough, and intellectual student, which commended him strongly to the faculty, and to his fellow students. Desiring, however, to enter his chosen profession with as little delay as possible, he left col- lege two years and a half after entering, and immedi- ately commenced his legal studies with Mr. Hotchkiss, a counselor at law, then practicing at Clinton. In due time he prepared for the bar, and was admitted at the July term of the Supreme Court, held at Utica in 1811.


James Kent, the illustrious jurist and legal com- mentator, was then chief justice of the State. Legal gentlemen of that day, who saw Judge Kent on the bench, have frequently described the calm, unstudied dignity with which he presided over the courts ; and his opinions, which were often pronounced without time for study or elaboration, were regarded at the time, as the finest display of judicial skill and recti- tude ever made.


Mr. Griffin commenced practice at Clinton. In the month of February, 1812, he was united in matri-


1


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mony to Miss Hannah Morrison. After practicing at Clinton eight years, his growing reputation as a law- yer demanded a more extensive field ; and, at the solicitation of several prominent citizens of Utica, he removed to that place, where he continued to practice until the year 1825, when he removed to the city of New York, and entered into a large and extensive practice. His reputation extended throughout the State, and his practice in the Court for the Correction of Errors, in the Supreme Court, and in the various circuits in the State, was equaled by few lawyers then at the bar. Like Elisha Williams, he seemed almost ubiquitous. Now in Buffalo, then at Bath, then at Al- bany, and then at New York. He was one of the coun- sel for the defense in the famous case of the People v. the three Thayers, tried at Buffalo, in 1825. He was retained with Mr. Williams in the case of the People v. Bishop, referred to in the life of Joseph L. Richard- son, but owing to an engagement in the Court of Errors, he was not present when that great trial took place. During his residence in New York, his prac- tice was frequently interrupted by those fearful eclipses of reason which are referred to in another part of this sketch.


Among the many important cases in which he was retained, that of the Bank of Utica v. Wager tended most to increase and extend his reputation. This was an action commenced in the summer of 1821 on a prom- issory note executed by Philip Wager, on the 19th of March, 1821, for one thousand dollars, payable to the order of Smalley & Beecher, ninety days after date, at the Bank of Utica. The case was tried at Utica, in November, 1821, before the Hon. Jonas Platt, then one of the circuit judges. It was one of great import- ance, not only to the legal profession, but to the commercial world. It was not the amount involved that gave it so much interest, although in those days one thousand dollars was a large sum of money, but it was the nature of the defense set up by the defen-


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dant, which was usury. Down to that time the policy of the statute of usury had not been fully vindicated by the Supreme Court, and this branch of the law, like many others, was then unsettled.


The legal contest which followed the issue in this case, has never been equaled in any other action of this nature, in the State. After a closely contested trial, and a full hearing of all the facts, Judge Platt ordered a verdict for the Bank, subject to the opinion of the Supreme Court. Accordingly a case was made, and the suit went to the general term, and was argued before that tribunal in the city of New York, in May, 1824. H. R. Storrs, then one of the ablest lawyers in the State, opened the argument for the plaintiff in a strong and masterly speech. Joshua A. Spencer opened the argument for the defense in a brief but learned and powerful effort-such an effort as might well be expected from that great and distinguished lawyer.


Mr. Griffin made the closing argument for the de- fense. When he arose to address the court, many sup- posed that the subject had been so perfectly exhausted by Mr. Spencer, that whatever else might be said, would be but the work of supererogation. A few moments, however, sufficed to convince all present, that, as by intuition, Mr. Griffin had pene- trated deeper into the subject, had more fully and logically grasped the great questions of the case, than either of the other counsel. His argument was one of the most able, profound, and elaborate ever heard at the bar of this State. Every authority bearing on the matter, whether American, English, or French, was fully considered, examined and digested. It was lengthy, yet did not touch upon anything which could excite the fancy or please the imagination. It contained nothing but logic and learning; yet the court and bar listened with deep and unwearied at- tention. Such was its power, that all who heard it were lost to everything except the words which fell


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from the lips of the eloquent and sagacious counsel- or. He was full of his subject ; he had completely mastered it, and his language flowed with intellectual energy, with an undefined delicacy and beauty of expression, which caused a "virtue to go out from it."


The labors of Mr. Griffin were fully rewarded by a great and signal triumph. The court sustained him in his view of the case. The verdict rendered against his client at the circuit was set aside, and a judgment directed in his favor against the Bank. The judgment of the court was pronounced by Chief Justice Savage in a profound and learned opinion, which is reported in 2 Cow. 763.


This opinion established certain principles in re- gard to the law of usury-the manner of casting interest-the effect of custom or usage upon ques- tions of usury-what is sufficient evidence to consti- tute a corrupt or usurious agreement-what is les mercatoria and how proved. Finally, it fully vindi- cated the policy of the statute of usury. The Bank. however, was not disposed to submit to this decision without another effort. Accordingly, an appeal was taken to the Court for the Correction of Errors, then the court of dernier resort in the State, where the contest was again renewed. The case was argued in that court at Albany, in December, 1826. James Tal- madge was then lieutenant-governor and president of the Senate, and consequently the presiding officer of the court. The case was now incorporated with another which the Bank then had pending against Smalley & Barnard, in which the same questions were involved. Benjamin F. Butler and J. Platt appeared for the Bank. Mr. Griffin and Mr. Spencer for the de- fendants in the combined cases. The argument of Mr. Griffin in the Court of Errors was superior eren to that which he made before the Supreme Court. He seemed to rise with the occasion, and to gain mental power and strength as such power and strength were


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demanded, and he was again victorious. As there was no appeal from the decision of this court, the Bank was compelled to submit.


The proceedings of the Court of Errors in the case of The Bank of Utica v. Wager is reported in 8 Cow., 398, and is regarded by the profession as a leading case ; although its doctrine has been some- what modified by the Court of Appeals in Marvine v. Haymer, 12 N. Y.


The victory of Mr. Griffin in this case was pur- chased at a fearful expense. So great were his labors in the preparation, trial, and argument of it, that a cerebral agitation soon followed, which through life at times quite unsettled his splendid mind. Every- thing within the range of medical skill was done to heal the mental malady, but who can


" minister to a mind diseas'd,


Or raze out the written troubles of the brain" ?


The disease often left him for years, during which his fine intellect shone out in unclouded splendor.


In the month of September, 1826, William Morgan, a citizen of Genesee county, was abducted, and, as was alleged, murdered by certain leading Masons, in con- sequence of disclosures which he had made concern- ing the rites and secrets of that order. This immedi- ately led to one of the most bitter and acrimonious political contests which ever agitated the State. In some localities, so terribly were the people incensed against Masonry, that it amounted almost to frensy. Leading Masons were prosecuted and punished with vindictive fury ; for a time, lodges were obliged to discontinue their meetings, or, like the Covenanters of Scotland, were compelled to meet in secret, where the blazing fury of Anti-Masonry could not detect them. The abduction was conducted with singular skill and success. Whatever fate befell Morgan, remains a secret unknown to all, except that great King " from whom no secrets are hid." It was alleged by some


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that heavy weights were attached to him, and he was thrown into the Niagara river. In support of this theory, certain persons asserted that one night, while fishing in the river, their attention was attracted to a phantom-like boat, which moved swiftly over the dark waters, propelled by muffled oars. When the boat reached the center of the stream it stopped-something resembling a human form was lifted from it, one long, piercing, horrid shriek rang out on the night air, one splash on the water followed, and all was still-the river rolled on, as it rolled before. The boat shot noiselessly away, and was soon lost from sight, leaving no trace of its occupants behind. This was believed to be the scene of Morgan's death. Others asserted that he was strangled in a gloomy dungeon connected with Fort Niagara ; while others contended that he went to a distant land, where he died.


Suspicion fell upon certain persons, whom it was believed were guilty of his death. They were accordingly indicted and brought to trial. The legal questions growing out of their trial were intricate and interesting. For a long time they absorbed much of the time and attention of the courts. John C. Spencer, of Canandaigua, was appointed by the governor to conduct the prosecution against the abductors.


Early in January, 1827, several persons who were concerned in the affair, were brought to trial before his Honor Enos T. Throop, then one of the circuit judges, at Canandaigua. All pleaded guilty to a charge of conspiracy to kidnap Morgan, excepting one; he was tried and convicted.


Judge Throop was not a Mason, nor was he an Anti-Mason, but in sentencing the convicts, his elo- quent, severe and just language, won much commen- dation from all persons.


In November, 1829, one Mather, a leading and prominent conspirator in the Morgan abduction, was brought to trial before Judge Gardner, at the Orleans Circuit. This was one of the most important trials


EBENEZER GRIFFIN. 609


growing out of the Morgan affair. Mather prepared to defend himself with vigor and success. Accord- ingly, he sent to New York and retained Mr. Griffin to conduct his defense. Vincent Mathews, Daniel D. Barnard, and William H. Adams, were also retained with Mr. Griffin. Such an array of talent could not fail to inspire hope and courage in the accused. The trial was conducted with signal ability on both sides. After a protracted trial, the jury rendered a verdict of not guilty. Mr. Spencer was greatly chagrined at this result, and immediately moved for a new trial, which brought the case before the general term of the Su- preme Court. The argument of the case took place in the city of New York, in May, 1830. William L. Marcy was then one of the justices of the court, and wrote its opinion, which is regarded as one of the ablest in our reports.




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