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 8
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Elijah Risely, Esq., was also a student in the office of Judge Houghton, with Mr. Mullett.
Like many other young men of limited means, Mr. Mullett was compelled to support himself, during his studentship, by teaching.
The benefits which are derived from a few years' experience as a teacher, are of great value to a young man preparing for any profession, especially that of the law. It gives the mind a peculiar discipline - the great art of self-government, and the government of others, is thus learned. But it requires a peculiar energy of thought and expression. The teacher should look with reverence upon every human soul committed to his care ; and as Canova or Fiesole saw in the un- hewn marble, the majesty, grace, beauty, and emotion which commands the admiration of ages, so the teacher should see in the undeveloped mind of his pupils, the great, the gifted, the good of coming years, and thus labor to quicken the young mind to a con- sciousness of its inward lofty nature, its capacity for progress, its affinity for all that is beautiful and ele- vated. With these views, who can be surprised, that so many statesmen, jurists, divines, and gifted men in all the avocations of life have once been teachers ?
Mr. Mullett felt the responsibilities and appreciated the benefits of his position as a teacher, and amid the active scenes of his life, reaped the reward of duties well done in that profession.
Thus, dividing his time between the school-room and his legal studies, occasionally conducting suits before the justices of the peace in the vicinity, he was at length qualified for his admission to the Chautauque Common Pleas, and he was admitted to that court on the 2nd day of November, 1814. From that time he abandoned the school-room and devoted his attention to his profession. His practice was confined to the business of that court for two years, when, in June, 1816, he was admitted to the Supreme Court; and in due time he was admitted a solicitor in chancery and
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a counselor of the Supreme Court and in chancery. After his admission to the bar, his struggle with poverty ended. He entered laboriously into the prac- tice of his profession, and it brought the sure reward of industry and ability. At first, the older members of the profession occupied the circle to which his am- bition aimed, but he rapidly approached that position, where he was accorded the honors so long reaped by others.
At the period when he was called to the bar, po- litical excitement in the State ran high. The war with England had closed. Amid the rejoicings which fol- lowed the victory of New Orleans, Daniel D. Tomp- kins, by the pleasing and attractive features of his character, his elegant address, his energy in aiding the government in the prosecution of the war, rendered himself the favorite of the people, and in 1816, he was elected, for the fourth time, Governor of the State. Then came the singular political era, which followed the accession of De Witt Clinton to the gubernatorial chair of the State-the fierce partizan contest of the Clintonians and Bucktails. In this contest James Mullett engaged with all the energy of his active mind. His great friendship for Mr. Tomp- kins caused him to conceive a dislike to Governor Clinton, and he became an active, prominent member of the Bucktail party in the County of Chautauque. With his pen, with his eloquence in the popular as- sembly and everywhere, he encouraged, enlivened and led on the Bucktail partizans, and that party soon became dominant in his county.
For several years Mr. Mullett was a law partner of the late John Crane, of Fredonia. This relation continued until the autumn of 1822, when the former was nominated by the Bucktail party of Chautauque County for member of Assembly. After a closely contested election, Mr. Mullett succeeded. That year the contest for governor, between Joseph C. Yates and Solomon Southwick occurred, in which Judge Yates
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was elected. Mr. Mullett entered the Legislature January, 1823. He at once became one of the leaders of his party in the Assembly. Peter R. Livingston, of Duchess County, was elected speaker. He was one of the most bitter opponents of the Clintonians in the State, and the strong vote by which he was elected ex- hibited his great power.
Mr. Clinton's course in the Constitutional Con- vention of 1821 rendered him, for the time being, unpopular. Indeed, as it then appeared, his enemies had completely triumphed, and his political career ended. But whatever his opponents expected from the result of this election, they were destined to dis- appointment. Like the first Napoleon's return from Elbe, after disasters which appeared overwhelming, so Mr. Clinton emerged from this defeat to a brighter position than he had ever occupied before the people of the State of New York.
The ability of Mr. Mullett as a legislator is fully evinced by his position upon several important com- mittees, by the speeches which he delivered, and the important documents which still survive him.
He was a harsh, bitter, and uncompromising op- ponent, often pushing his political prejudices to extremities ; but as that course was in strict accord- ance with party discipline, he could hardly fail to pursue "the regulation."
In doing so, he did not escape the denunciation of his political opponents, who often charged him with all the political evils and enormities of which man is capable.
As has been well said by another, "To be a mem- ber of the Assembly, and a leading member, at a time when men were elected in reference to their qualifica- tions and capacity, was a distinction very much to be desired."
During the session of this Legislature, an attempt was made to procure the passage of a law authorizing the election of presidential electors by the people, in-
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stead of their appointment by the Legislature. It was a measure very popular with the people, and they were clamorous for the passage of such a law. In the House a committee of nine was appointed, with Mr. Flagg as chairman, to report a bill favorable to the wishes of the people on the electoral question. Mr. Mullett was a member of that committee. After much discussion, a bill was reported, "giving the power of choosing electors to the people, but requiring that the persons elected should have a majority of all the votes." An attempt was made to alter this bill, so that a plurality of votes should elect. This failed, and the bill passed the House as reported by the committee.
This was the year when the great presidential con- test between Adams, Clay, Crawford, and Jackson oc- curred. As neither party could elect, it was charged that the committee desired to do only enough to satisfy the demands of the people, and silence their clamor without effecting the object desired. It was claimed by the opponents of Mr. Mullett, that he sympathized in this feeling, and he shared the censure of the peo- ple with all those who supported the bill as it passed. His friends have found sufficient apology for this act, by urging the fact that the measure was a political manœuvre, sprung for effect at a time when the change was not demanded, only to advance the interest of one of the presidential candidates, to the prejudice of the others. At any rate, he voted in accordance with the dictates of his own conscience, regardless of other considerations ; in that, he discharged the highest duties of a legislator.
Silas Wright was then in the Senate, where the electoral question was discussed amid all the heat of partizan strife. His vote in the Senate was very simi- lar to that of Mr. Mullett, in the House.
The latter, after serving two terms in the Legis- lature, retired to private life, and never again held a public office, until, at the judicial election in 1847,
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he was elected a justice of the Supreme Court for the eighth judicial district of the State.
He was not constituted for a politician ; he did not possess that flexibility of mind which enables a man to pander with success to bar-room politicians, village wire-pullers, managers of caucuses, and conventions, who are the engineers of our political machinery-the running-gears of parties. Plain, direct, honest, and sincere, he could move with power and impressive force in the debate-in the committee-and in the arena of eloquent argumentation. But in the field where political legerdemain is the order of the day, he was out of his sphere-and weak. Returning from his legislative life, to the bar, he rose to an eminence in his profession which soon placed him in its front rank.
While Mr. Mullett was regarded as learned in ele- mental law, familiar with the statutes, and with pre- cedent, he particularly excelled as an advocate. Per- haps few men who have been at the bar in this State, were more accomplished as jury lawyers than he. He possessed a peculiar force which rendered him an attactive speaker. The manner in which he entered into his client's case impressed both court and jury with the belief in his sincerity ; while he had a vigor- ous, discursive imagination, and a mastery of language which few possessed. It was his fortune to be engaged in many of the great trials which occurred in western New York, during the period of his practice. His defense of Joseph Damon, tried for the murder of his wife, at Mayville, in September, 1834, was remarkable for the ingenuity and ability with which he turned the circumstances relied on by the prosecution for a con- viction, into facts, establishing, as he contended, the prisoner's innocence. His address to the jury, in that case, attested that high order of intellect, that un- wearied research, that unsurpassed eloquence, which placed it on an equality with the ablest forensic effort
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ever made in the State. He interposed the unpopular defense of insanity for the prisoner. As has been well said by an able commentator on medical jurispru- dence : "One reason of the reluctance with which courts of law entertain the plea of insanity in a crimi- nal prosecution, is undoubtedly some apprehension lest it should prove to be feigned. And yet it is a disease which is not easily feigned. For all the dif- ferent forms of insanity have their own peculiar char- acteristics, which are known and easily recognized by the experienced observer."
Still it is sometimes counterfeited when the physi- cian is not well skilled in the symptoms of "a mind diseased."
Dr. Chayne gives an account of a person who could not only counterfeit insanity, but death itself, better than Falstaff. So successful was this person in his decep- tion, that one day, he actually convinced, not only the doctor himself, but several other physicians that he was actually dead ; animation was so completely sus- pended, that, after feeling his pulse and holding a mirror to his mouth, they were on the point of leaving him to the undertaker, when one of the number dis- covered returning life.
The most singular case was that of William New- man, who, in 1814, was confined in jail at New Bruns- wick, for murder. He admirably counterfeited a quick consumption, through all its stages of raising blood, and progressive debility, deceiving all the doctors in the neighborhood. He was thrown into jail on the second of August, but it was not until the twenty- second of September, that his dissolution was threat- ened. The jailor entered his cell-found him dying- already cold to his knees. The dying man begged for a hot brick to warm them, and while his keeper went out to get one for him, he leaped out of bed, escaped from prison and eluded the vigilance of his pursuers. These, however, are extreme cases. The experienced observer is seldom deceived.
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The plea of insanity is, therefore, a humane de- fense, having a just regard for all the imperfections of our nature. The slight tenure by which we hold our reason, the ease with which our intellect is unbal- anced, the fact that all our nicely-arranged faculties may be in perfect harmony and order save one-ad- monish us to look carefully at the defense-to listen to it with patience and judgment.
In the defense of Damon, Mr. Mullett showed deep research into the phenomena of the mind-all its remote and divergent aspects-all those mental dis- eases which glide into various degrees of cerebral disorganization or total insanity.
The mother of Damon appeared in court and testi- fied to his insanity. Mr. Mullett's reference to this witness is peculiarly touching and beautiful.
"There is," said he, "one witness whose vener- able appearance and sacred character sheds a hal- lowed influence over everything she says, which de- mands my implicit belief and reverential faith. I mean the aged mother of the prisoner."
He then relates her testimony, which discloses her reasons for believing her son insane.
"Now, gentlemen," he continued, "whatever you may say in regard to this testimony, I dare not disbe- lieve it. I revere the sacred source from whence it comes, and I trust, with the most implicit faith, in the nice observation, untiring anxiety and sleepless watch- fulness of a mother's love. It is prompted by nature's strongest affections-affections which outlive selfish considerations, endure through all changes of circum- stances, and die only with the last throb of expiring nature. Can the mother be mistaken in the changes of her son's countenance- that object which she had watched from the first dimpling smile in the cradle, through all the varied changes of infancy, youth and manhood, till every well-known lineament became a subject of hope or
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fear, and every change was reflected back in the sun- shine glow of joy or the cloudy aspect of sorrow ?"
Damon was convicted and executed, but the effort of his counsel to save him was a masterly forensic effort, and shed upon him the highest honor. Mr. Mullett was most ably assisted on this trial by the late Judge Houghton, of Chautauque County.
In October, 1833, a criminal trial of great interest took place at Ellicottville, New York. It was the celebrated case of On-oid-ah, the Indian woman, who had been indicted for the murder of a child. Mr. Mullett appeared for the defense. The prosecution was conducted by Anson Gibbs, then District-Attorney of Cattaraugus County, assisted by the late George P. Barker, of Buffalo. There have been but few cases tried in the rural districts which created the excite- ment and interest that attended this one. Mr. Mul- lett had been early informed that Barker had been retained to conduct the case against him, and pre- pared to meet that able and successful advocate, fully aware that he was a foeman worthy of his steel. George P. Barker, as appears in another part of this work, was no ordinary advocate. Perhaps there were very few who possessed so much of that subtle, per- suasive eloquence before a jury which he did. The collision of two such minds could not fail to elicit the deepest interest. It seemed, as the trial progressed, that the strength and power of their intellects in- creased. Sharp and closely contested as was this trial, the distinguished lawyers were governed by the most perfect courtesy. Like two well-skilled swords- men, who disdained any resort to a thrust or a parry which was not acknowledged by the rules of the com- bat, so these able contestants resorted to no warfare except that which is permitted by strict legal princi- ples and rules.
When the evidence was closed, Mr. Mullett ad- dressed the jury for the prisoner. He occupied their
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attention four hours, and, as was said by a spectator, "it hardly seemed as though he had been talking one hour when he closed," such was the powerful hold which he gained over the minds of all present. There were several circumstances which intensified the in- terest of the case. The woman was the wife of a chief. She was intelligent, and comely in her appear- ance. When she was incarcerated she had a babe two months of age, which she idolized. As it was a healthy child, the sheriff was not disposed to have it in the jail, but, overcome by the frantic appeals of the mother, he permitted her to retain the infant ; but such was her grief and sorrow at her situation, that within a short time the course of nature was changed -her milk dried up, and she was compelled at last to part with her child.
During the last night she was permitted to have the little innocent with her, she lay with it pressed to her heart, occasionally attempting to give it that nur- ture which no longer flowed from her breast. When morning came, it was taken from her and given to a sister who happened to be so situated that she could furnish the child with its needed sustenance. The grief of the poor woman on parting with her child knew no bounds.
The manner in which Mr. Mullett seized upon these circumstances was indescribably beautiful and thrill- ing. Such was his almost magnetic influence over the jury-over all who heard him - that when Barker followed for the people, in the rich strains of his legal oratory, he was in the position of Richard Henry Lee, when he followed one of the masterly speeches of Patrick Henry. It was some time before he could gain the attention of the jury. The spirit which Mullett had invoked could not be easily exorcised. It had permeated every avenue of sympathy-of thought. His powerful, electrical appeal still rang in their ears, and closed them to every other voice, and "not guilty ! not guilty ! ! not guilty ! ! ! " hung quivering on their
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lips. Though Mr. Barker's speech was one of the most unequivocal productions of a powerful and ac- complished mind and caused the jurors to listen, nay, it engaged their attention, it did but hold the feelings which Mullett's address had aroused, in abey- ance, only to leap forth again in the jury-room-to culminate in a verdict of "not guilty."
His powerful but unsuccessful defense in the great case of Saterlie v. Windsor, in which he was opposed by the late Governor Young, was another of the many cases in which his eloquence seemed to bear him even beyond himself.
There was no effort at oratory in his speeches, no apparent grasping after effect, no rhetorical flourishes, all was simple-all was tuned to the voice of nature- almost insensibly his language gained the heart. It was like the stone in the ring of Pyrrhus, "which had the figure of Apollo and the nine muses in the veins of it, produced by the spontaneous hand of nature, with no help from art."
Mr. Mullett continued to practice at Fredonia, until 1841, when he removed to the City of Buffalo. His success in that city was a matter of certainty. He had often met the distinguished members of its bar in the forum, and he was warmly welcomed by them to the Queen City, as one whose intellectual superiority would be to them an acquisition of no small import- ance; such is the generosity of lawyers towards each other.
One of the prominent cases in which he was en- gaged, soon after his removal to Buffalo, was that of the Ogden Company against Oliver Lee, to recover the value of a large quantity of lumber purchased by the defendant of the Seneca Indians, upon the Catta- raugus reservation. The plaintiff claimed to recover by a presumptive right, purchased of Massachusetts. A large number of actions had been brought, and this case was to determine all. A verdict was found for the plaintiff. It was removed to the Supreme Court,
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and in 1844, argued before that tribunal. Mr. Mullett appeared for the plaintiff, and Mr. Fillmore for the defendant. It was one of those questions for which the clear, sagacious, methodical mind of Mr. Fillmore was peculiarly adapted; and his argument was one of great power and ability. In the language of another, "Mr. Mullett addressed the court in an argument of great length, and concluded with an apology for the time he had exhausted. Greene C. Bronson was the Chief Justice of the old Supreme Court. He was a judge of extensive and profound legal learning, thor- oughly imbued with the doctrines of metaphysical and ethical science, and gifted with an extraordinary power of application, which rendered a life of severe and un- remitting labor entirely natural to him. A close and philosophic argument was his delight, during which he took 'no note of time.' "'
Judge Bronson listened to Mr. Mullett's apology, and then remarked :
"That the court needed the argument that had been made, and no apology was necessary."
Mr. Mullett was one of those lawyers who bitterly disliked the Code of Procedure. After his elevation to the Bench of the Supreme Court, he frequently dis- played his disgust for it. While presiding at the Wyo- ming circuit, in 1849, a question as to the interpretation of a section of the Code arose. It was argued at some length by the respective counsel ; when they had con- cluded, Judge Mullett addressed the Crier, as follows :
"Crier, you are a man of ordinary understanding, and within the meaning of the Code, you are a proper person to decide this question. Will you decide it, sir ?''
As that functionary declined, Judge Mullett de- cided the question himself.
In May, 1847, he was nominated for one of the jus- tices of the Supreme Court for the eighth judicial dis- trict ; he was of course elected by a large majority .
By varied experience at the bar, as the prosecuting
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attorney for Chautauque County-as a criminal law- yer, on the defense, and as civil lawyer, he was emi- nently qualified for the high judicial position to which he had been elected.
As a lawyer, "it was strictly true of Mr. Mullett, that he was entirely incapable of making a powerful effort in support or defense of a case in which he had no confidence ; and no amount of preparation or con- sideration could draw him out in his full proportions, exhibiting his wonderful powers when there was an evident absence of merit. His head and heart kept close companionship, and, although he might mis- judge, or be betrayed by the relation of clients, he was always an unwilling, and sometimes a weak counsel, in a bad cause, and he has been known to throw up the papers of a client, and indignantly walk out of the court-room in the midst of a trial, when he had been made the subject of imposition." A distinguished member of the Chautauque bar, in a lecture before the Historical Society of Fredonia, thus describes the ap- pearance of Mr. Mullett, when he first met him in the court-room, in June, 1838. "I took my seat in the bar; the members of the Chautauque bar were prin- cipally strangers to me. There was the bland and venerable Hazeltine, the accomplished and confident Marvin, the sharp and accurate Tucker, the amiable and industrious Brown, the honorable and affable Lewis, and at the further end of the bar, and near the prisoner's box, sat Mr. Mullett. I assigned them all their proper positions, and him with the rest. With a physique, which certainly would not recom- mend him, made ugly by an eye which an acci .. dent had bleared ; I concluded that he was a specile gratia member, and was there to represent a country certiorari, or to defend some petty thief. He soon took his seat as counsel for the plaintiff in the first cause called. His client was a poor man, and had lost his buildings by the fire kindled by his rich neighbor, on his fallow ground; and the suit was
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brought to recover the damages he had sustained ; it was an aggravated case, and had not proceeded far, before I concluded I had misjudged the plaintiff's lawyer, and I inquired who he was. At length the evidence was closed; it was one of those cases which justified the severest stricture upon, and denuncia- tion of, the conduct of the defendant, who had resisted the payment of damages, because his opponent was a poor man. Mr. Mullett saw his opportunity to do a poor man, and at the same time a rich man justice, and he did so in terms that were terribly severe, and in the most scathing language, he denounced and swept away those distinctions which property creates. It was such efforts as this, that distinguished him as the poor man's lawyer."
In the year 1846, he was appointed Attorney for the City of Buffalo, and he held that office until he was elected a justice of the Supreme Court of the State.
Judge Mullett possessed many generous, amiable, and high-toned elements of character, which threw his faults into the shade. His honesty was unimpeach- able, and his word might, upon any subject, be relied upon as an absolute conclusion.
With the poets and orators of ancient and modern times he was equally familiar. With the philosophy as well as detail of history, with the current literature of the day, he was familiar, while in all that pertained to the learning of his profession, he had few equals. His memory of leading adjudicated cases was remark- able. At the bar or on the bench, his facility of ref- erence to these cases rendered him ready and strong. As a judge, he was acute, sagacious and reflecting. Even during the hurry and excitement of the circuit, his active mind and his extensive knowledge of the law, enabled him to dispose, with great accuracy, of a vast amount of business. His faults as a judge arose from his having so long been the active advo- cate, that even while hearing a cause as a judge on
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