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 47

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 47


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


Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59


Like all of Mr. Marcy's opinions, it is written with much precision, with great perspicuity, and with all the affluence of legal learning. Few cases in our earlier reports decide more intricate and important questions than The People v. Mather. Its doctrine has been approved by the Supreme Court of Pennsyl- vania and of many other States. The points in the case were principally prepared by Mr. Griffin, but owing to ill health, he did not argue the case before the Supreme Court, and that duty fell upon Mr. Barnard. Mr. Spencer argued the case for the people; but he was again unsuccessful. The verdict of the jury was sustained, and Mather fully acquitted.


Mr. Griffin continued to practice in New York with much success until he was again seriously attacked by his mental difficulty. He remained, however, in New York until 1842, and having re- covered from the attack, he returned to Roches- ter, where he continued until his death. During his first residence in Rochester, Honorable E. Darwin Smith was a student in his office. A strong and lasting friendship immediately commenced between preceptor


39


610


THE BENCH AND BAR.


and pupil, which terminated only with the life of the former.


After Judge Smith's admission to the bar, he mar- ried a daughter of Mr. Griffin, and subsequently entered into partnership with him, which relation continued until Mr. Smith was elected a justice of the Supreme Court, when Mr. Griffin formed a copartner- ship with his grandson, Vincent M. Smith, Esq. Mr. Griffin was at one time a partner of Selah Mathews. Soon after his removal from New York, he became a partner in business with Thomas C. Montgomery, Esq. He was for some time recorder of the city of Rochester, and discharged the duties of that office with marked ability. The last important professional matter in which he was engaged, was that of Freeman Clark v. The City of Rochester.


The questions in that case arose in an action brought to recover the sum of forty-one thousand seven hundred and forty dollars, paid for principal and interest by the plaintiff in the action, upon a con- tract for the sale to him by the defendants of three hundred shares of the stock of the Rochester and Genesee Valley Railroad Company, issued under and in pursuance of sections 285 to 292, inclusive, of an act to amend the charter of the city of Rochester.


The case was tried before Hon. W. F. Allen, then one of the justices of the Supreme Court for the fifth judicial district, without a jury, who found as a conclusion of law upon the facts stated in the case, that the said sections 285 to 292 inclusive of the act aforesaid never became a valid law of the State, and that the subscription to, and taking of, the said three hundred shares of the stock of the Genesee Valley Railroad Company, authorized and taken under said sections, were illegal and void ; that the several pay- ments made by the plaintiff to the defendants therefor, were made without consideration, and that the plain- tiff was entitled to rescind the said contract and require the repayment and recover against the defen-


611


EBENEZER GRIFFIN.


dants the several sums, with the interest thereon, and accordingly rendered judgment for the plaintiff for the money so paid, deducting certain offsets specified in the case.


The city having been thus defeated, appealed to the general term of the Supreme Court, and the ap- peal came on for hearing in March, 1857. In conduct- ing the argument for the appellant in this case, Mr. Grif- fin exhibited those extraordinary powers of reasoning, comprehension and research, -all that clear poise of mind and power of discrimination, which charac- terized his earlier professional efforts. This argument was regarded by the bench and the bar, as a great and powerful effort, of which the ablest counsel in the State might well have been proud.


"The determination of this cause," said Mr. Griffin, "requires the deliberate and careful exam- ination of the powers of the legislative and judicial department of our government. In this country, government is divided into three departments-legis- lative, judicial and executive. The legislative, to pass Jaws, the judicial to construe them, and the ex- ecutive to see that they are enforced. These depart- ments are created entirely distinct, by the Constitu- tion, and the public good requires that they should be kept so. The Constitution being the supreme law of the land, the judicial department is necessarily empowered to construe it. A laudable desire to protect the citizens from the exercise of what the judges may consider a dangerous power conferred by the legislative department, has, in some instances, induced courts by construction to trench upon the powers of this department. That cities and towns have suffered from the exercise of such powers as are conferred upon the city of Rochester, must be ad- mitted ; and such constructions are apt to have their influence upon the decision of courts, in all such cases.


" A general sentiment pervades the community, that


612


THE BENCH AND BAR.


it is unwise and inexpedient to confer upon muni- cipal corporations the power to engage in the con- struction of railroads. This sentiment may be just, but the court will bear in mind that the wisdom or expediency of a law is kept solely and exclusively with the legislative department of our government. No other department has a right to interfere with the exercise of the power to pass laws. Every law passed by the legislative department is presumed to be con- stitutional ; and all courts are bound to approach the examination of every question involving the constitu- tionality of a law under the influence of such a pre- sumption (1 M' Cook's Ohio N. S. 82). It should be the wish and anxious desire of all the courts to uphold and sustain the authority of the legislative department.


"The rule which we contend for is this: That no law should be declared unconstitutional, unless the court, starting with the presumption that it is consti- tutional, should become satisfied, beyond any doubt or hesitation, that it was clearly, plainly and palpa- bly unconstitutional. We contend that this is the only safe rule, and that it is supported by the deci- sions of every respectable tribunal in this country which has ever pronounced an opinion upon the sub- ject." In support of this position, Mr. Griffin referred to a large number of English and American cases.


He insisted that the Legislature, when acting within the scope of the legislative department, can pass any law not expressly prohibited ; and that the decision in this case might safely rest upon the inability of his opponents to produce any such prohibition.


"If the framers of the Constitution," said Mr. Griffin, " mean to restrain the Legislature in the exer- cise of any particular power, they would plainly say so. They would leave no doubt on the subject. This prohibition is not made out by process of reasoning, but by putting your finger upon the prohibition itself. Lieber on Civil Government, ch. 15, ยง 25; 2 Burr.,


613


EBENEZER GRIFFIN.


285 ; 2 Rawle, 374; 1 Jones, 61; Hartman v. Com- monwealth, 5 Harr.


" With all due deference to the course pursued by the learned, ingenious and able judge, who presided at the circuit and pronounced the law under which the defendants have acted unconstitutional, I submit that he has departed from the well known estab- lished rule laid down by the sages of the law who preceded him, and practically said that any law is unconstitutional which can by process of reasoning be made plausibly to appear so. He has practically re- pudiated the plain, safe, and well established rule, and adopted one eminently unsound in principle and unsafe in practice. Is the rule thus practically estab- lished by his honor, in this case, a safe rule, in the construction of constitutional powers ? We think not, and trust your honors, when you reflect upon the dangers which will result from the adoption of such a delusive standard or rule, if it can be called a standard or rule, will concur with this opinion. What, then, are the powers of the legislative department of our State government ?"


Mr. Griffin proceeded to argue with great force and power, that question. He contended that all the in- herent powers of the people for self-government, not delegated to the general government, are reserved to and belong to the State. Of such reserved powers the entire legislative power is vested in the State Legislature, subject to no restrictions or limita- tions except such as are contained in the State Consti- tution. The taxing power belongs to the Legis- lature, and is subject to no limits or restrictions out- side of the United States and State Constitutions. The power to authorize the construction of works of internal improvement, and to provide for their con- struction by the officers or agents of the State, rests with, and pertains to, the Legislature, to be exercised within its exclusive jurisdiction. Such works may


614


THE BENCH AND BAR.


be constructed by general taxation, and in case of local works, by local taxation; or the State may aid in their construction by becoming a stock- holder in private corporations ; or authorize municipal corporations to become such stockholders for that purpose. Railroads are public works and may be con- structed by the State or by corporations, and lands taken for their use are taken for the public use, and may be taken on payment of a just compensation. The Legislature is the exclusive judge in respect to what works are for the public benefit, and in regard to the expediency of constructing such works, and as to the mode of their construction, whether by the State or by private or municipal corporations, in whole or in part.


The Legislature, therefore, may authorize municipal corporations to subscribe to the stock of a railroad company, with the consent and approval of a majority of the corporators, duly ascertained. The passage of a law authorizing such subscription to the stock of a private corporation, subject to the assent or approval of a municipal corporation, by the vote of the corpo- rators, is not a delegation of power to the corporation to pass a law, but it is a legitimate case of conditional legislation, and is entirely within the discretion of the Legislature. Such was the substance of Mr. Griffin's argument.


The late Selah Mathews of the Rochester bar, replied to Mr. Griffin. He was a nephew and a stu- dent of Vincent Mathews, and partook of many of the characteristics of that distinguished man.


Selah Mathews, in many respects, was one of the ablest lawyers in western New York. His mental qual- ities were not only marked by breadth and brilliance, but they were remarkable for their strength and in- tensity. His patient, abiding industry and inquiry rendered him familiar with all legal authorities. His retentive memory and the orderly distribution of his


615


EBENEZER GRIFFIN.


knowledge placed the result of his immense reading at his ready disposal.


It was pleasing to observe him while engaged in a legal argument. Was there an authority referred to by his opponent, when the volume containing it did not happen to be present ? If there was the least departure from the construction which the court had given to the point, Mathews would instantly detect it, and if he was to reply, make a note of it and re- serve his correction until he replied : if not, he would courteously set the matter right, on the spot. "The counsel's memory is not quite correct, or mine is greatly at fault, and I beg leave to state my recollec- tion of the case," he would say on such occasions ; and those who knew him best seldom took issue with his interpretation of the matter.


His reply to Mr. Griffin comprehended all that could be brought to bear in sustaining the position of the plaintiff in the case. It was an argument such as courts, lawyers, and even laymen delight to hear,-an argument with which Mr. Justice Johnson coincided in a strong and ably written opinion in which he dissented from his brethren of the bench, feeling himself "constrained by the rigor of the maxim stare decisis, to hold that the sections of the statute in question were never properly enacted by the Legislature, and never had any force or authority as law, and consequently, the bonds issued under them were void and the action properly brought."


The other judges, however, sustained Mr. Griffin, and the decision of the special term was reversed.


The opinion of Judge E. D. Smith in the case possesses great merit for its learning, clearness, and force ; a careful examination of it would be useful to the student, the practitioner, and the business man, while that of Judge Strong fully sustains his high judicial and legal abilities. Judge Wells wrote no opinion, but he fully concurred with Judges Smith and Strong.


616


THE BENCH AND BAR.


A more extended history of this important case would be interesting to the reader, but it would ex- tend beyond the limits of this work.


In early life Mr. Griffin was an ardent admirer of Hamilton and Adams, consequently, he was then a Federalist. He became a strong and influential suppor- ter of Governor Tompkins. The "frank, manly, and ingenuous disposition, the true nobleness of soul which characterized the governor in public and in private life," had peculiar charms for a mind like Mr. Griffin's, and through life his relations with him were most friendly and intimate.


In the presidential contest of 1828 he ardently sustained Andrew Jackson for the presidency ; but when his administration closed, Mr. Griffin became a member of the Whig party, and subsequently a Re- publican.


He was an ardent patriot, and the secession of the Southern States after the election of Mr. Lincoln, in 1860, greatly excited him. The situation of the country often disheartened him, but such was his un- faltering confidence in the patriotism of the people that he never doubted our triumph over armed and formidable treason.


In all his domestic relations, Mr. Griffin was happy and fortunate. As a lawyer, he had few equals in the State. Had it not been for the mental difficulties with which he was frequently afflicted, he would have at- tained the very highest professional distinction. In conducting his cases, "he uniformly examined the whole range of discussion, and sought such a result as he believed would be reflected by the mirror of the law in its truth and purity. The case of his client was always an object of peculiar solicitude ; no prin- ciple, no case bearing on the subject, within his exten- sive knowledge and various reading, was omitted. His conclusions thus carefully formed were maintained by him before the various courts in which he prac- ticed, with a firmness and boldness which resulted


617


EBENEZER GRIFFIN.


from a consciousness of their accuracy. eminently cal- culated to aid the researches of the most enlightened and experienced tribunal.".


He read with pleasure Milton's sublime epic, and lingered with delight over Shakespeare's immortal page, where imagination revels equally in regions of mirth, beauty, and terror; now evoking specters, now sporting with fairies, now conversing with calm and recondite scholars, and now "ascending the highest heaven of invention." He had a deep, religious sen- sibility, which never rested until it found its true per- fection and manifestations in every day's practice, and in all the concerns of life. Like Vincent Mathews, Mr. Griffin continued in the practice of his profession until the last days of his life, and he fell from the ranks of his professional brethren into the arms of death, "with the harness upon him," a legal Mar- mion, falling beneath that standard which aroused his youthful ambition. He died on the twenty-second day of January, 1861, in the seventy-third year of his age, in full possession of all his mental powers, calm as midnight, yet bright as the still summer noon, disturbed by no throb of passion or of sorrow, with no sigh of regret for the world he was leaving, resting on that faith "which takes hold of immortality."


1


NICHOLAS HILL.


Remarks of an Eminent Writer Concerning Erskine Apply to Mr. Hill .- His Char- acter in some Respects Resembles J. C. Spencer .- Hill's Devotion to his Profes- sion .- His Ambition Confined to it .- The Professional Eminence which Mr. Hill Attained .- His Youthful Characteristics .- Becomes a Law Student .- Is Ad- mitted to the Bar .- He turned all his Intellectual Efforts to Law .- Commences Practice at Amsterdam, New York .- Removes to Saratoga .- Judge Cowen .- Hill forms a Copartnership with Sidney Cowen, Esq .- Engages in the Prepara- tion of the " Notes to Phillips's Evidence."-Mr. Hill's Love of Justice illustrated. -The Will .- The Insidious Designs of a Father Thwarted .- His Rage .- The Lawsuit and the Result .- Mr. Hill's Progress at the Saratoga Bar .- He is Ap- pointed State Law Reporter .- Character as a Reporter .- Removes to Albany .- Forms a Partnership with Messrs. Cagger & Porter .- The Character of the Firm .- Mr. Hill gave his Profession no Divided Allegiance .- Entered into Law as Newton did into Astronomy .- Resembled Lord Brougham in his Capacity for Physical and Mental Labor .- Description of Hill's Labors During the Session of the Court of Appeals .- Mr. Hill's Appearance at the Bar of the Court of Appeals Described .- Anecdote .- Incident connected with the late M. S. Newton .- Can Courts be Influenced ?- Interesting Incident Related by Mr. Hill .- Its Effect .- Personal Characteristics of Mr. Hill .- His Capacity as a Jury Lawyer .- Manner before a Jury .- His Physical Powers begin to Fail .- Retires from the Bar for a time .- Hopes of his Friends .- His Sudden Death .- Scene in the Court of Ap- peals on the Announcement of his Death .- Eulogy of J. H. Reynolds.


To describe Mr. Erskine at the bar, says a writer, is to ascertain the highest intellectual eminence to which a barrister under the most favorable circumstances may safely aspire ; and the remark will apply to Mr. Hill, for it is no exaggeration to say of him, that he be- longed to the front rank of American lawyers.


In some of his characteristics he resembled John C. Spencer ; they were both creatures of pure intellect, active and restless-men of vast reseach, vigorous log- ic, practical wisdom, unwearied industry, and capable of immense intellectual labor. Both were wanting in enthusiasm, creative imagination, fancy, and poetic


619


NICHOLAS HILL.


fervor ; and both were close, critical, reasoning law- yers. But here the analogy ends; for much of the power which impelled Spencer to action was political ambition ; this led him into a varied career, in which opinions and personal relations were subordinate to political ambition. He divided his great talents and his extensive learning between the bar and the politi- cal arena, between the duties of the legislator and the cabinet minister.


Mr. Hill, on the contrary, concentrated all the powers of his mind upon his profession. This gave him a mas- tery at the bar which few men are capable of attaining. He disliked politics, and there was nothing in official po- sition that could attract him from the one chosen sphere to which he devoted himself. He was ambitious, but his ambition was that of the lawyer divorced from politics, and, therefore, his knowledge of the law, his power of applying it to practical use, of wielding its subtleties with facility, of grasping the points in a legal ques- tion, and separating truth from error, rendered him unequaled at the bar of the State.


Though Nicholas Hill gained the highest eminence in his profession, and adorned the American bar, yet he was never desirous of "decking himself with those trap- pings of learning, or of swelling out his reputation above its natural bulk, by those adventitious honors which are so easily acquired in this country, where every city is filled with learned societies amply fur- nished with sounding names and a large list of well titled officers."


His life was unvaried by those events which excite the ambition of the politician or the statesman. It was spent over books, whose pages were often illumed by the midnight lamp, before courts-before grave and learned judges, whose deliberations were aided and whose minds were enlightened by his learned and powerful arguments.


Nicholas Hill was born in the county of Mont-


620


THE BENCH AND BAR.


gomery, New York, October 16th, 1806. His father was a Revolutionary soldier, who, on leaving the army, became a preacher of the Gospel, and lived to a very venerable age.


Young Hill early exhibited a love of books, an un- usual strength and tenacity of memory-a desire for knowledge-a meditative mind, which, with an indomit- able energy and perseverance, enabled him, with but little aid from his father, to acquire sufficient classical learning to commence the study of law with profit and success. As a law student, he exhibited the same un- wearied powers of research which characterized him amid his brilliant and successful career at the bar.


It was once remarked of Dr. Chalmers, that what- ever science he happened to touch, was instantly transmuted into theology ; and it may well be said of Nicholas Hill, that whatever facts or principles within the range of human knowledge, at any time excited his attention, became subservient to one common purpose, and aided to render him more ac- complished and learned in his profession ; for, in the operations of the intellect, as well as of the will, the prevailing passion, like Aaron's serpent, swallows up all the rest.


After his call to the bar he commenced practice at Amsterdam, meeting with ordinary encouragement. At length he removed to Saratoga, where he made the acquaintance of the late Judge Esek Cowen, "whose life seemed to offer that example of singleness of pur- pose, devotion to his profession, and unwearied industry, upon which he molded his own career."


He afterwards formed a copartnership with Sid- ney Cowen, Esq., a son of Judge Cowen. Associated with Mr. Cowen, he prepared that great work known to the legal profession throughout the nation, and in England, as "Cowen & Hill's Notes to Phillips on Evidence," which remains a lasting monument to the ability, energy, industry, and learning of its authors ;


621


NICHOLAS HILL.


a work which may be considered a law library by itself.


There was in the character of Mr. Hill an innate love of justice and right ; hence he could not tolerate injustice, duplicity, or fraud, "could not be petty, unfair, or disingenuous ;" and in all his practice he never, if it was possible for him to prevent it, al- lowed injustice to triumph. These traits were illus- trated by an incident which occurred early in his career.


While at Amsterdam, soon after his admission to the bar, he was called upon to draw a will for a man by the name of Christian-a farmer, whom he held in high esteem. This man had been ill for a long time, and, aware that he was near his end, desired that his matters should be properly adjusted before his death. He was about forty years old, with a wife and two children -a daughter ten years of age, and a son of six. His property amounted to twenty - five or thirty thousand dollars which he had accumulated since his marriage.


Christian had a father, a hard, grasping, insidious old man, with a strong controlling character. For several weeks he had been constantly with his son.


On arriving at the residence of his friend, Mr. Hill was received with great cordiality by the elder Chris- tian, who at once assumed a very confidential manner towards him ; so attentive was he to the young law- yer, that he hardly gave him an opportunity to pay his respects to Mrs. Christian.


"Mr. Hill," said she, "I am very glad you have come ; I know you are my poor husband's friend, and-and-I wanted to"-


"Never mind, Mary, John is waiting for us, you know, and Mr. Hill has no time to hear any lengthy talk. This is the way, sir. John is quite low, and what is done must be done immediately," said the old man, moving towards the room where the sick man lay. The look which the grief-stricken woman


622


THE BENCII AND BAR.


gave the lawyer as he parted with her, spoke volumes, which, with the actions of the elder Christian, con- vinced him that there were matters below the surface, which he ought to understand.


On entering the sick-room, the old man took his seat by the bed of his son, in that business-like man- ner, which clearly indicated that he was to be a party to the business in hand.


Mr. Hill conversed a few moments with the sick man on general topics, and then asked him if he was ready for him to commence drawing the will.


"I am," was the reply.


"Then you will please retire, for I am accustomed, when engaged in drawing a will, to be entirely alone with the testator," said Mr. Hill to the elder Christian.


"Oh ! this matter is all understood between John and me, and it is his wish that I remain in the room, isn't it, John ?" said he.




Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.