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 59
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His various opinions on pre-emption ; on the ques- tion of extending relief to the sufferers by the great fire in New York ; and others, are all characterized by thorough, systematic and learned examinations, and equitable conclusions.
On the 4th of March, 1837, President Van Buren entered upon the duties of his administration, and Mr. Butler resigned the office of secretary of war, but retained the position of attorney-general until Janu- ary, 1838, when he resigned that office also. Soon after this, he removed to New York city, and resumed there the practice of his profession. He continued a resident of that city the remainder of his life. With- in a few months after his removal to it, the office of district-attorney for the United States became vacant, and Mr. Butler was appointed to it. He discharged
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its duties until the inauguration of General Harrison, when he resigned, and once more resumed the prac- tice of his profession.
In 1844, Mr. Butler and Daniel S. Dickinson were the electors at large in the electoral college of the State, and cast their votes for James K. Polk. He tendered Mr. Butler the office of secretary of war, but the offer was respectfully declined, for reasons which were entirely satisfactory to the president. After his inauguration, he conferred upon Mr. Butler the office of United States district-attorney. This position Mr. Butler did not hesitate to accept, as it did not interfere with the duties of his profession. He continued to occupy it until the election of General Taylor, when he was removed.
Early in 1848, Mr. Butler, John C. Spencer and Alvah Worden were appointed commissioners to codify the laws of the State. It was the desire of the profession throughout the State, that these gentlemen should accept the trust thus committed to them, but both Mr. Butler and Mr. Spencer declined to act.
"In 1843, the former sustained a great calamity- the great irreparable calamity of his life. He was fond of domestic life. The felicity of his home was very great ; but the time had come when it was to be invaded by the unrelenting enemy of man; the en- deared companion of his life-who had cheered his toils and lightened his cares-who was the light and joy of his happy home,-was removed by death. It was a bereavement in which he had the deep sympa- thy of his friends ; but it brought out the force of Christian principle by which he was ever actuated and guided, and he bore his affliction with serene res- ignation-although not without deep and abiding sadness."
In the summer of 1856 he made a visit to England, but returned very soon to complete a professional engagement of great importance. This was his con-
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nection with the great case of Levit o. Curtis, which had been before the courts a long time, and was then pending in the Court of Appeals. He was com- pelled to terminate his tour in Europe in order to con- duct the argument of the case at a term of the court which was approaching. The case is reported in 15 N. Y. Some idea of its magnitude and importance may be inferred from the fact, that the statement and points in it made a book of over three hundred and six pages. The late Judge William Kent, who was associated with him in the case, in an address deliv- ered after the death of Mr. Butler, said :
"I was engaged with him and two other lawyers in the conduct of a case, which for voluminous and complicated pleadings and proofs, was, perhaps, un- paralleled in our courts. It was deemed necessary that a condensed statement of the evidence of the whole case, and legal points, with minute references to the proofs and authorities affecting every point, should be prepared for the Court of Appeals. Two of the associate lawyers were prevented by other en- gagements from undertaking the work; I shrunk from it as utterly beyond my powers, and it fell to the self- sacrificing industry of Mr. Butler. Our conferences in relation to it were of daily occurrence; and I ob- served, with alarm, its gradual effect on his health. Often I have left him bending over his desk, late of a July night, and found him the next morning in the same posture ; which had been varied in the interval by only a brief period of intermission, in which he has told me that sleep was often sought in vain. I remonstrated often, seriously, almost angrily. I re- member he once answered me by repeating Words- worth's 'Ode to Duty.'
"It was impossible to withdraw him from his work ; and thus health was wasted at the midnight taper-life itself consumed in the severe labors of his office - and when his task was finished to the admira- tion of his associates and his opponents, the anxious 49
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eye of friendship saw too surely that the stamina of his constitution was gone. It enhanced our idea of his energy, to know that this too protracted labor was in part performed while mourning a bereavement the most affecting that could occur to a man of his do- mestic affections ; and our admiration is increased when we think that he carried on his work, enduring in silence and composure, a heartfelt wound, which had touched a nerve where agony resided."
Mr. Butler's professional life extended through the long period of forty-one years-a period the most interesting and important in the legal history of the State. During this time, he practiced under the pro- visions of three different State constitutions, and under many innovations in our judicial system. He was the compeer of many of the great lights of our early jurisprudence, he saw many of them pass away, and when he was summoned from earth there were but few of them left.
"The student in pursuing his studies is surprised to find in all his books, such various memoranda of the professional labors of Mr. Butler. He finds his arguments in all the old, ingenious, and artificial rules of special pleading, both at law and in equity. He finds evidence of his professional learning and subtle distinctions of the English law of real property, and in all the doctrines which govern the creation and devolution of estates, the interpretation of devises and the construction of settlements and deeds, tracing with the erudition and intellectual subtlety of Fearne, Sugden and Preston, the rules which control real property, through numberless and bewildering cases, to their deep sources in the obscure recesses of the medieval law. The books are filled with his argu- ments on the ordinary law questions which occupy our courts, exhibiting the extent of his studies in constitutional and commercial law.
" It is a pleasure for me to allude to his treatment of the junior members of the bar. His briefs, his
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memoranda, all the treasures of his learning and fruits of his investigation were offered to his associates. He encouraged the young lawyer in his timid efforts, and unrestrainedly presented all he knew to the com- peer counsel who was associated with him. He was indifferent to his position in the argument, aiding the lawyer who preceded him with suggestions or with citations of authorities ; with briefs, which, perhaps, had cost him hours of studious labor, in entire abne- gation of his own interests, and, indeed, unconscious of vanity or selfishness."
Mr. Butler's sense of justice and morality gov- erned and guided him in all the duties of his pro- fession. No reward, however great, could induce him to undertake a case which he believed corrupt or dishonest.
He was once applied to by a lady of great wealth to aid her in procuring a divorce from her husband. The application was in writing, and contained a care- fully drawn statement of the facts on which she relied for success. It was accompanied by an exceedingly liberal fee. The statement convinced Mr. Butler that the lady's case had little merit in it, and that she expected to succeed by certain adroitly laid plans. Within a few days after the receipt of this proposal he returned it, inclosing in it the fee, and also a beau- tiful letter in which he declined to engage in the case and advised her to abandon her design.
"Even in the event of success," said he, "there will be a time in your life, when the gayety, fash- ion, and, pardon me, the follies and sin by which you are surrounded, will pass away with your youth, and in the eventide of your life, as you meditate upon the past, the voice of conscience will come to you, overwhelming you with sorrow and regret. I pray you, therefore, do not now in the summer of your life sow those seeds which in its autumn will produce a profusion of miseries. . As has been said by one wiser than myself, it must be
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carefully remembered that the general happiness of the married life is secured by its indissolubility. When persons understand that they must live to- gether, except for a very few reasons known to the law, they learn to suffer, by mutual accommodation, that yoke which they know they cannot shake off; they become good wives and good husbands - for necessity is a powerful master in teaching the duties which it imposes. I therefore decline to undertake your case, and trust that my words will dissuade you from making any further effort in a case which I am sure you will upon mature reflection abandon."
This letter had its effect ; it brought the lady to re- flect seriously upon the step she proposed to take, and in after years she blessed the day that she sub- mitted her case to a man like Mr. Butler.
In the year 1835, the council of the University of the City of New York, having decided to establish a faculty of law in that institution, Mr. Butler was re- quested to prepare a plan for its organization. He complied with the request, and on the 29th day of May, 1835, submitted to Rev. J. M. Mathews, then the chancellor of the University, a document entitled " A Plan for the Organization of a Law Faculty, and for a System of Instruction in the Legal Science in the University of the City of New York."
Very soon after this, the council met, and adopted the following resolution :
" Resolved, That this council do fully approve of the plan now submitted by the Honorable Benjamin F. Butler, for the organization of the law faculty, and that the same be and hereby is adopted by this coun- cil ; subject to such modifications as may hereafter be deemed advisable."
This resolution was accompanied by the following statement of Chancellor Mathews.
"From their first incorporation, the council had very generally cherished a strong desire to place the law department of the University under the charge of
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Mr. Butler. They were led to this selection both from their own conviction of this gentleman's eminent qual- ifications for the duties and responsibilities of the station, and from the knowledge that his appointment would meet the cordial approbation, not only of the bench and the bar in this State, but also of distin- guished lawyers throughout the nation.
" This desire was naturally increased by the adop- tion of the plan proposed by him ; and although it was well understood that his engagement as attorney- general of the United States would not permit him immediately to enter upon the duties of the professor- ship, it was thought that the advantage to be derived from his services, if they could be secured within a reasonable time, would justify some delay in their commencement. Under these impressions, he was therefore unanimously elected principal professor ; and, as will be seen by the following communication, has accepted the appointment, and will enter upon his duties in March, 1837."
The ability and learning with which this plan was prepared, is fully attested by the foregoing resolution and statement.
Mr. Butler's plan recommended, among other things, a course of three years' study before gradu- ating ; a certain proportion of that time, if spent in a law office, to be deducted from the course. It also recommended departments, as primary and second- ary. Among the studies proposed for the third year, were forensic duties and professional ethics .
The following comments of Mr. Butler upon the last branch of study, are of the highest importance to the student, the lawyer, and the private citizen. They are entirely characteristic of him in his professional as well as in his private character.
"Under this head, the advantages of diligence and integrity may also be enforced ; and the true method of acquiring public esteem, and of rising to eminence in the profession, may be pointed out and
ยท
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recommended. On this subject, early and sound in- struction is of the first importance. It is true that our courts, by their rules and decisions, carefully incul- cate on gentlemen of the bar the high obligation of fidelity and justice, and, when occasion requires, they enforce these precepts by appropriate penal sanctions. But there are cases of chicanery and illiberality in practice, and sometimes of professional delinquency of a more serious character, which cannot be brought to the notice of courts, and therefore, pass without ju- dicial censure.
"One of the most effectual methods of promoting so desirable an end, is to combine moral training with professional education, and to imbue the mind of the student with correct notions of the nature and pur- poses of his calling, and of the responsibilities which belong to it. He should be taught that though many of its duties grow out of the misfortunes, the errors, and the vices of mankind, the great object of his pro- fession is not, as is supposed by many without, and some within its pale, to derive wealth or livelihood from those evils, but to mitigate and correct them. He should also be informed that the display of rare ingenuity or of great intellectual power, in forensic discussions, is by no means the most useful of profes- sional labors. On the contrary, he should be instruct- ed that it is an important and very honorable part of the business of a lawyer, by his learning, skill, and sound advice, to aid his fellow-citizens in the correct transaction of their affairs, in the solution of difficult questions without resort to litigation, and in the ami- cable settlement of angry controversies. Above all, he should be impressed with the conviction that in con- ducting such legal proceedings either in or out of court, as may be necessary to the interest of his clients, he is called to the high dignity of ministering in the sanctuary of justice, and that it behooves him to come to the altar 'with clean hands', and 'a pure heart,'-that frankness and integrity towards his an-
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tagonists are perfectly compatible with the manly support of the rights of his employers-that chicanery and artifice are not only in the long run injurious to professional success, but utterly inconsistent with the first principles of a science whose grand basis is to 'command what is right, and to prohibit what is wrong'-and that to form the character of a great jurist, it is necessary, first of all, TO BE A GOOD MAN."
In the year 1834, John C. Spencer was invited to prepare a plan for the organization of a law school on the Maynard endowment, at Hamilton College, by the trustees of that institution. He accepted the invita- tion and submitted a plan worthy his rare talents and unrivaled industry. He was afterwards invited to execute in the law professorship of Hamilton College, the plan so prepared by him; but he was compelled by his numerous engagements to decline. Thus it will be seen that both Mr. Butler, and Mr. Spencer, who were so intimately connected in remodeling the statute law of the State, were also engaged in prepar- ing a course of instruction on the common law.
Some time previous to Mr. Butler's commencing his labors of preparing his plan for the University of New York City, he received from the Baron De Roenne a full translation of Savigny's celebrated es- says on the state of the German universities, including copious extracts from lectures delivered in those uni- versities on various branches of juridical science, among which were lectures on the Digests or Pan- dects, which included the whole system of the Roman law in its detail ; also on the forms of judicial pro- ceedings (process) founded upon the Roman and ec- clesiastical law, and upon the statutes of the German empire. The value and importance of this work to Mr. Butler was very great, and its instruction materi- ally aided him in other duties which he was called upon to discharge.
" His love of literature and his cultivation of it,
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amid all the demands of his profession, were remark- able." By intense application and study, he made himself a thorough scholar. From the time of leaving the academy at Hudson, to the close of his life, he continued a student of the languages, so that he read his favorite authors of antiquity in the original with great facility.
He possessed a poetic fervor which underlaid his apparently prosaic and literal nature, and which was exhibited in conversation with his familiar friends in beautifully expressed thoughts, or pleasing quota- tions from his most admired poets. This was illus- trated, in a happy manner, on the occasion when Judge Kent remonstrated with him against his habits of excessive professional labor. In his writings, par- ticularly in his letters to his clerical friends, he ex- hibited great familiarity with the Bible, especially with its great poets, whose lofty conceptions were both the offspring of human genius and emanations from heaven. He believed that poetry had a higher end than mere amusement ; that in the hands of genius, it tended to advance truth, philosophy, and religion- that it laid aside the severity of the preceptor, and displayed as in a picture, "the practice, the actions, the manners, the pursuits, and the passions of men ; that by the force of imitation and fancy, by the har- mony of numbers, by the taste and variety of imagery, it captivates the affections of the readers ; and imper- ceptibly-perhaps reluctantly, impels him to the pursuit of virtue."
As a lawyer, Mr. Butler read with pleasure in the writings of the Hebrews, the regulations of their com- monwealth, the structure of their codes, and their ratification ; their manner of administering justice, and all their relations of civil and domestic life.
His consistent religious principles were the most attractive features of his character, for they were just to his own understanding-they spoke with a tone of reality-with a genuine sensibility-with an ingenious
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and deep sincerity. They were sustained by the high cultivation and full development of his intellectual nature. Instead of thinking that religion was a sys- tem of dullness, and tame submission to sullen dog- mas, that crush the light, generous, and pleasing emotions of the soul, he believed it opened new fields for the intellect-gave it a new consciousness of its own powers and of its divine original ; that it raises the statesman and the lawyer to the discovery of the true interest of the State, causing them to seek without fear or favor the common good, teaching them to un- derstand that "a nation's mind is more valuable than its soil, and prompting them to originate and give stability to institutions by which society is carried forward, and to confide in justice and virtue as the only foundation of a wise policy and of public pros- perity."
It has already been said that Mr. Butler was fond of domestic life. This attachment undoubtedly caused him to refuse those eminent positions which were so frequently tendered to him, for his attachment to home was paramount with him. "It would be in- justice to his memory and the memory of his affec- tions, not to allude to that amiable and happy part- ner with whom he lived from early manhood to that very recent period when he was bereaved of the graces of a beautiful woman, whose strong sense, warm affection, and accomplishments, charmed his home, who encouraged and adorned his labors and lessened the fatigues of a studious and rightly ambi- tious life. His house was the seat of elegant hospi- tality ; a place in which to find men of the highest distinction in the State, and his door was never shut to persons of the most modest pretensions, whose merits were merits of the heart."
Mr. Butler continued to devote his entire energies to the duties of his profession, until the autumn of 1868, when his friends prevailed upon him to visit Europe again. Accordingly, on the 16th day of Oc-
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tober, 1868, he embarked at New York in the steam- ship Arago, bound for Havre, intending to remain abroad two years. On the 29th of October, he landed at Havre. He then visited Harfleur and Rouen, and on the third of November, arrived at Paris. The next day he wrote a long and interesting letter to his son, William Allen Butler, Esq. "In the evening of that day he was taken ill, and notwithstanding all that kindness, attention, and medical skill could do, the disease progressed rapidly. He retained his con- sciousness, however, until noon of Monday, November 8th. In the evening of that day, his earthly career terminated." 4
Judge Kent thus describes his last interview with Mr. Butler :
" A few days before he sailed, I met him in Nas- sau-street, and heard with unmingled pleasure the anticipations he had formed of his tour. He spoke of Italy and Rome, of the Tiber and the Anio, the haunts of his favorite Horace; of the Tusculan retreat of Cicero, and sportively promised to write me a letter from the ruins of the Forum. I spoke to him of Eng- land, which he hoped to revisit,-and anticipated the pleasure of his wanderings in the homes of the great jurists whose works had been his life-long study, and who, like him, had mused on the common law, and brought philosophy and learning to aid in its progress and improvement ; of HARGRAVE, and CHARLES BUT- LER, MANSFIELD, and ROMILY. Why think of death, was my reflection, to one so full of joyous hope and expectation ! I left him in a pleasant delusion as to his health and future life-to be suddenly startled by the intelligence that his earthly career was ended, and that his gentle and generous spirit, worn by toil, had sunk on the highway of life."
It has been said with much truth that the legal pro- fession has produced two men whose characters and ac- quirements were similar to Mr. Butler's, and that these were Sir Samuel Romily, and William Wirt ;
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that "no two men have been in the profession whose merits were more extensive, or whose memories were more deeply cherished ; that in the character of the latter, the proportion of his virtues was that of har- mony in all their relations." And yet he had enemies who saw, or pretended they saw, many moral blem- ishes on his character. Such is the corruption of party, that no character, however pure, is free from censorious attacks. That he shared in whatever there was erroneous in the principles of the party with which he was connected, is certain,-that he did not pass through the vicissitudes which attended his own political fortunes and those of his friends, unscathed by their political faults, is equally certain ; but that his moral character was tainted cannot be proven.
His connection with the Washington and Warren Bank, in the earlier years of his life, has been the subject of bitter reproach, in which even his religious principles were attacked. And yet, when it is remem- bered that this attack fell upon him in the course of a heated political contest, intensified by the recrimina- tions of a disappointed adventurer, it must be re- garded only as partizan and private malice.
A dispassionate estimate of the character, talents, and services of an eminent man, may, however, dis- arm partizan feelings which are often proof against all the eloquence of enthusiastic admiration. "The great poet of human nature has taught us that it is in the power of the honest chronicler alone to preserve the honor of the illustrious dead from corruption, and to extort from the most prejudiced enemy the con- fession that
" ' Whom I most hated living, thou hast made me With thy religious truths and honesty, Now in his ashes honor.'"
A WORKING LAW LIBRARY.
This List has been carefully prepared for us by Prof. THEODORE W. DWIGHT, of Columbia College Law School, as an example of an Efficient Working Library for General Practice, without which no Lawyer is prepared for ordinary emergencies.
*Abbotts' National Digest. U. S. | *Parsons on Maritime Law. Reports and Statutes.
*Abbotts' N. Y. Digest.
*Abbotts' U. S. Courts Practice. Abbotts' Practice Reports, N. S.
*Angell & Ames on Corporations.
*Bishop on Criminal Law.
*Bishop on Criminal Procedure. Bishop on Marriage and Divorce. Bouvier's Law Dictionary.
Broom's Legal Maxims. Clerk's Assistant, The.
*Clinton & Wait's N. Y. Digest.
*Court of Appeals Reports. Edwards on Bills and Notes. Equity Draftsman.
*Greenleaf on Evidence. Hanes' Digest of Criminal Law.
*Hill on Trustees. Hilliard on Mortgages.
*Kent's Commentaries. Leading Cases in Equity. White & Tudor.
New York Code.
*Parsons on Contracts.
*Parsons on Partnership. Parsons' Mercantile Law. Reeves' Domestic Relations.
*Redfield on Wills. Riddle on Supplementary Pro- ceedings.
*Sharswood's Blackstone.
*Smith's Leading Cases.
*Story on Agency.
*Story on Bailments.
*Story on Bills.
*Story on Conflict of Laws. Story on Constitution.
*Story on Equity Jurisprudence.
*Story on Equity Pleadings.
*Story on Sales.
*Taylor's Landlord and Tenant.
*Tillinghast & Sherman's Practice Walker's American Law.
*Washburne on Real Property.
Wharton & Stille's Medical Ju- risprudence.
Wheaton's International Law. Willard on Real Estate.
* Works of paramount importance.
COOLEY's Edition of Blackstone, just published, is now recom- mended by Prof. Dwight in place of Sharswood-the notes being twelve years later.
- Gentlemen desiring either to purchase a single volume or to col- lect an entire Law Library, who may apply to us either personally or by letter, will be cheerfully furnished with full information, and, if they decide to purchase, supplied at the lowest rate.
" A full supply of Text-Books, Reports, Digests, &c., including many out of print and scarce, constantly on hand, or procured without delay.
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