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 9

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 9


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the bench, he could not always divest himself of the spirit which pervaded the contest of the forum. With the light of long experience, with an almost intuitive sagacity, he soon discovered the right and the wrong of a case ; and he had little patience with the efforts of counsel on the side which he knew to be in the wrong. Hence he was sometimes charged with pre- judging a case.


He usually, in his charge to the jury, divested a case "of those artificial incumbrances and entangle- ments, the creation of artful counsel, and presented the points in that clear and distinct manner which all jurors could understand, leaning always strongly to the equities of the case, What is right ? This was his polar star ; and with his eye ever upon it, he ren- dered many judicial decisions which remain to-day as the law of the land, and the written evidence of his abiding integrity."


His opinions exhibit great research, are written with care and perspicuity, always approaching the point on which the case turned, with a directness and celerity which rendered it apparent even to a casual reader.


Early in the year 1858 his health began to give way before the weight of years and the long labors of his professional and judicial life. For a while his strong physical powers struggled with approaching disease, sometimes sending a ray of hope to his anxious friends ; but as the autumn approached, it became apparent that his long life was rapidly draw- ing to a close. He sought that comfort which is from above, that peace of mind which passeth understand- ing, which robs death of its sting and the grave of its victory. He lingered until the 10th day of Septem- ber, 1858, and then passed forever from earth's troubled scenes.


HENRY K. SMITH.


General Characteristics .- Born on the Island of Santa Cruz .- Rank of his Father .- Painful Accident to Him .- His Mother, Her High Intellectual Qualities .- Her Influence over Henry .- He Leaves Home .- His Father's Advice .- Laconic Re- ply .- Placed under the Care of Dr. Berry, at Baltimore .- Progress in his Stu- dies .- His Mental Powers .- Engages as a Clerk in a Dry Goods House in the City of New York .- Singular Circumstance which caused him to Leave his Employers .- Listens to a Trial in which Daniel Cady and Ogden Hoffman are Opposed .- Decides to be a Lawyer .- Seeks Mr. Cady, at Johnstown .- Character of Mr. Cady .- Smith Enters his Office .- Marcus T. Reynolds .- The Debating Club .- Smith Admitted to Practice .- A Delegate to the Young Men's Democratic Convention .- Makes the Acquaintance of Silas Wright in a Singular Manner .- Smith's Speech in the Convention .- Meets with Israel T. Hatch, who Invites him to Buffalo .- Invitation Accepted .- Commences his Practice in that City .- His Success .- His Partnership .- His Capacity as a Lawyer .- Incident in a Trial. -Appointed District-Attorney .- Recorder of Buffalo .- Mayor .- Incident While Mayor .- Smith as a Politician .- His First Marriage .- Loses his Wife .- Second Marriage .- Loses his Second Wife .- Effect on his Mind .- Sickness .- Death.


THE life of Henry K. Smith demonstrates the truth of the old poet's creed, that the mind of man is his true kingdom, in which he can adopt the imperious language of Louis XVI., "the state is myself." As a lawyer, he was imbued with the spirit of legal science, instinctively perceiving and observing all its limita- tions, its harmonies, its modulations, and discords, just as a cultivated musician can perceive, without an effort, what is congruous or incongruous in the har- mony of sound. He possessed much ability for legal disquisition and polemics. His legal speeches and arguments manifest the distinction between a lawyer possessing a philosophic mind, enlarged by extensive reading, disciplined by thought and reflection, and the mere legal martinet-the case lawyer or empiric, who uses legal precedent as the mason does a brick or stone, the carpenter a stick of timber, without under-


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standing the philosophy, the logic, or lesson by which it was established.


As an orator, in the popular assembly, he was dignified, easy, natural. As a politician, he was keen and discriminating, a close observer of men. In con- ducting party measures, he moved with facility and success, perfectly understanding how to catch "the tunes of the times." There was nothing of the trim- mer about him, for he was ever bold, and spoke " straight out," a Democrat, never furling the banner of his party for the sake of policy, but always carry- ing it aloft, or like Bruce at Bannockburn, planting its standard in the hard rock. He wielded a strong and polished pen, which was the true emblem of his mind. Either in speaking or writing, there was a beautiful concord between his thoughts and his lan- guage. He read with perfect selection, not with the voracity of an intellectual dyspeptic. He thought with accuracy and consistency. He had a fine imagi- nation, which made him a poet, so far as to enable him to appreciate what is most excellent in poetry. His profundity and metaphysical acuteness, his deli- cacy of taste, caused him to turn away from much which passes under the name of poetry. Not that he wrote poetry, for he did not. Yet in his hours of re- laxation from professional labor, he read the produc- tions of those great poets which bear the impress and the seal of genius, learning, and taste ; for one of the tests of genius is, that it calls forth power in the minds of others. He believed that the fictions of a great intel- lect "are often the vehicles of the sublimest verities," that its flashes often open new regions of thought, and throw new light on the mysteries of our being, "that often when the letter is falsehood, the spirit is the pro- foundest wisdom." There are those who believe, or affect to believe, that a lawyer, to be successful, must be as emotionless as stone, as imperturbable as Diag- ones. At an early period in the career of Edmund Burke, it was said of him that his writings and his


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speeches, while they evinced much imagination, even poetic inspiration, they exhibited little of the stern, cold logic of the law. Time, however, demonstrated the fact, that with his poetic taste and imagination, he united the highest legal abilities. The school- master who taught his pupils that laughter, under any circumstances, indicated a weak intellect, main- tained a theory equally as plausible as those who ignore imagination or poetic taste in the legal pro- fession.


Henry Kendall Smith was born on the island of Santa Cruz, April 2nd, 1811. His parents were Jere- miah Smith and Jane Cooper. They were of English origin. At the time of Henry's birth, the island was in the possession of the English, but in the year 1815 it was restored to the Danes, its original possessors. Mr. Smith was an architect and builder. Eminent and distinguished in his calling, he derived a large in- come from it. He was a man of energy, ability and perseverance. During the occupation of the island by the English, his pecuniary affairs were greatly enhanced, but the change of government resulted dis- astrously to him, reducing him nearly to poverty. Yet such was his social standing and respectability, that he was promoted to the rank of major in the Danish provincial army, a position which offered him a small income.


One day, however, while passing through a cor- ridor leading to some casemates in a fort, a quantity of quicklime was, by some accident, thrown into his face. The effect was terrible. In dreadful agony he was conveyed to his room, where he suffered for many weeks. At length his confinement ended ; but he was blind for life. At this time his family consisted of two sons and two daughters. One of the sons is the subject of this sketch.


Mrs. Smith, the mother of Henry, was a woman of uncommon endowment in person and mind. She was one of those who are not easily discouraged by mis-


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fortune-one of those who ever look on the bright side of life, and fight its battles bravely. Like the mother of the great Corsican, she directed the attention of her children to the future. She held up before them the great, the gifted and the good, as models for them to follow. All sentiments of honor, of courage, of large- heartedness, of generosity, of kindness, she nursed and cherished in the hearts of her children. She taught them that success is conquest, and that no man holds it so fast as he who wins it by conflict. In short, she was one of those women who rule society by that invisible but mighty power, that tenderness, that po- tency of persuasion, which molds, guides and controls the intellect of her children. What princess, what sovereign can do more than this? Nay, where is the ruler that can do as much ? It has been truthfully said, "that great men are ever much more the sons of their mothers than of their fathers, while seldom have great men seen their own greatness survive in their sons." Henry was, indeed, the son of his talented and noble mother. Many years after her death he beautifully said of her, "that the great rules of the gospel were so settled in her mind that she scarcely deliberated between degrees of virtue." Hence, the early home influences which surrounded Mr. Smith were of the purest and most elevated character.


With the first development of his nature he indi- cated a love of study, and at an early age he was placed in school, where he remained until he was eight years of age, when he was sent to Baltimore, and placed under the tuition of Rev. Dr. Berry, a dis- tinguished minister of the Church of England, an ac- complished and elegant scholar. At this time the elder Smith held heavy claims against the Danish govern- ment, incurred by its action in taking possession of Santa Cruz. But such was his anxiety to aid in the education of Henry, that he settled the whole in con- sideration of receiving at once, the small sum of fifteen hundred dollars.


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In this settlement, he gave the following receipt : "I accept the sum of fifteen hundred dollars, in dis- charge of my claim against the Danish government, for the sole purpose of educating my son Henry, be- cause I cannot delay until all that is justly my due can be collected by law."


As the boy was leaving home, his father said to him, "Henry, young as you are, you must know that you have now mainly to take care of yourself. Ac- cording to your conduct, you will either sink or swim."


"I'll swim, father," was the laconic and earnest reply of the boy.


Actuated and inspired with this idea, he left the home of his father forever.


Guided by his accomplished and amiable precep- tor, he made rapid progress in his studies, and per- fected himself in the natural sciences, in the ancient and English classics, developing those intellectual powers which distinguished him in after life. The bright mind, the studious habits, and genial nature of the young man, soon won the confidence and warm esteem of Dr. Berry, and he labored to advance his pupil with unremitting zeal. He even aided him in his pecuniary matters. The young student's culture, both æsthetic and scientific, was in harmony with his fine physical and mental organization.


After attaining his thirteenth year, he received the rite of confirmation in the Church of England ; and though but a boy of tender years, yet he formed his views of Christianity with caution, without asperity, and uninfected by bigotry. Through life he loved and revered the lofty ethics, the sublime teachings, the beautiful and consoling precepts of the Bible ; and in the deep earnestness of his nature, he ever be- lieved that "prayer ardent opens Heaven." Amid the most engrossing scenes of his life, such prayers touched the fountain of his feelings, and wherever he listened to them, whether in the great congregation, in


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the domestic circle, or in the lowly cabin, he was im- pelled to say, "How dreadful is this place! this is none but the house of God." If, like Coleridge, he sometimes had thoughts and feelings better than his life, let those who are without faults cast a shadow upon his memory.


Though the mental powers and habits of re- search which young Smith exhibited, well fitted him for one of the learned professions, yet such were his circumstances, that he could not control the means for procuring a profession, and at the age of seventeen, he was placed as clerk in a wholesale dry goods store in the City of New York. Here he applied himself with great diligence to his new occupation, although the Promethean spark within rendered him conscious that he was designed for some other occupation. When the duties of the day were over, instead of plunging into amusement and recreation, he would retire to his room and study the speeches of Burke, Erskine, Phillips, Hamilton, Webster, and other great masters of eloquence. Here, too, he continued to pursue his classical studies, determined, whenever an opportunity occurred, to change his occupation. He waited for some time in vain, but at length an occur- rence took place which changed the whole current of his life.


One morning while engaged in boxing some goods, his employer, who was standing by, sharply repri- manded him for his manner of procedure :


" You act like a woman, or worse, like a clumsy boor," said the merchant.


Just at that moment Smith, who was driving a nail into the box, struck his thumb. Instantly throwing down the hammer, he turned fiercely to the merchant and said :


"Box the goods yourself ; pound your own thumbs, for that is all God ever intended you to do. He has got something else for me to attend to."


Putting on his hat, he left the store and the aston-


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ished merchant forever. Some time previous to this event, he had been introduced to the late Daniel Cady, of Johnstown, New York, who was engaged in an im- portant trial in the city. He had listened to that dis- tinguished advocate's address to the jury with the keenest delight ; he saw the judges, the jury, and the spectators listen with equal attention to his powerful argument. He heard the reply of Ogden Hoffman, which was replete with that logic and eloquence which rendered him peerless among the gifted lawyers of his day; and from that time Smith was inspired with a love for the legal profession, which continued until the close of his life. From that day he determined to be- come a lawyer.


Immediately after leaving his employer in New York, with the small sum of money which consti- tuted his whole fortune, he hastened to Johnstown, found Mr. Cady, and in a few words related to him the history of his life, explained his present situation, and asked permission to enter his office as a law stu -. dent. Mr. Cady remembered the bright, intelligent young man whom he had examined as a witness in New York, was pleased with his manners, and self- reliance, and welcomed him to his office, promising him his assistance and influence in obtaining his pro- fession. This renowned lawyer and distinguished jurist did not live for himself alone; his life, whether as the private citizen, the lawyer, or the judge, was a model. Those feelings of unkindness which sometimes obscure and sully the goodness of excellent men, sel- dom or never passed over him. In his profession, amidst the collisions of rivals, his ambition was so controlled by his generosity and uprightness, that he was never known to tarnish with envious breath the honest fame of another, or withold a ready testimony to another's worth. His life was more than a model; it was a rich heritage to the American bar.


Soon after Mr. Smith commenced his legal studies, one of those common institutions, which have devel-


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oped the genius of many a statesman, given to the bar and the pulpit many an ornament-a debating club, was formed in the village. Here his talents soon began to exhibit themselves, and his eloquence drew large crowds to the club room. Marcus T. Reynolds was at this time practicing his profession at Johns- town, and was a rival of Mr. Cady at the bar. That profound and gifted lawyer, early discovered in the young student, a mind of no common order, and though connected with a rival office, he sought his acquaintance and became his friend for life.


It is too often the case with young men, conscious of possessing fine intellectual powers, that they de- pend too much upon their natural endowments, and thus neglect that severe mental discipline, that thor- ough and patient investigation, without which, espe- cially in the legal profession, distinction is seldom attained.


Few persons leap, Pallas-like, into full professional honors and success, though in this, as in all other pro- fessions, " impudence sometimes attains to a pitch of sublimity," and at that point it has produced many distinguished advocates, that is to say, advocates who make more noise in the court room, overhaul a more ponderous pile of books than he who has wasted the midnight oil in learning their contents. Such men scramble up the delicately graduated professional lad- der, at a bound. In politics, they ascend, if possible, still more rapidly ; there, they learn a profession, not exactly mentioned in the books, only by way of wholesome penalties, for being too close practitioners in their arts.


Mr. Smith was untiring in his devotions to his books, and his memory took the impression of what he read, like softened steel; it hardened when the page was closed, so that he never lost the thought or theme of the author.


He continued his studies with Mr. Cady until


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he was ready for his examination, gaining means to defray his expenses by teaching school.


He was admitted to the bar in May, 1832, and com- menced practice at Johnstown. In the following Oc- tober, the Young Men's State Democratic Convention met at Utica, and Mr. Smith was one of the delegates from the County of Montgomery. Here he was first known in the politics of the State. A gentleman of distinguished position, who was present, relates that during the session of this convention, while a resolu- tion of much importance was pending, a young man unknown to most of the members, several times at- tempted to obtain the floor, but without success-older and better known members always gained precedence with the chairman. Determined to be heard, he made another effort, and again failed.


At length Silas Wright, who was a member of the convention, and who sat behind the young man, arose, and, in a stentorian voice, exclaimed :


"Mr. Chairman ! Mr. Chairman !"


The gentleman was recognized by that officer with . the usual sign.


"I desire, Mr. Chairman," said Mr. Wright, "that you will listen to the young gentleman directly in front of me, whose name I have not the pleasure of knowing. I wish to hear him, sir, and I believe this convention does."


The chairman bowed in assent; and Mr. Smith, for he it was, courteously thanked Mr. Wright for his assistance, and then proceeded to deliver a speech which took the convention entirely by surprise, and gave him at once the reputation of an accomplished and logical speaker. It combined the daring in imagination, metaphysical in reasoning, and the inventive in theory.


The question before the convention was upon the choice of a proper candidate for governor. The name of James Kent having been introduced against


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William L. Marcy, Mr. Smith favored the nomination of the latter.


"Mr. Speaker," said he, in the course of his remarks, "we are here as the representatives of the Demo- cratic party of the great State of New York, whose history is coeval with the corner-stone of the nation, and whose destiny, no matter what vicissitudes await it in the future, is to stand with that corner- stone as long as a relic of it shall survive the lapse of time. I cannot, therefore, consent to name as the standard-bearer of that party, one who has rejected its great principles. Sir, I respect the gentleman whose name has been introduced in opposition to Mr. Marcy, as a man and a lawyer. I respect him for his purity, honor, and incorruptible integrity as a judge, and I will cheerfully award him all the honors, except this one. Iam not willing, sir, to build him here a tabernacle to his political faith, though he comes in the transfiguration of the old apostles of the Democracy. I cannot forget, sir, his long and uncompromising devotion to the Federal party. Do gentlemen say that he has recanted his Federal faith ? Sir, his party has wasted away before the breath of Democracy, its idols and its altars are broken, and where its incense was once burnt, the fires of other offerings glow. If he comes in the name of Democ- racy let us receive him, but let us reserve for the true and tried of our party-those who have never worshiped at the shrine of strange gods-the honors and distinctions of which they are alone worthy. I hesitate not, sir, to say that such is William L. Marcy."


This speech was received by the convention with the warmest applause. Mr. Marcy received the nom- ination for governor, and was elected, and ever held Mr. Smith in high esteem. Martin Van Buren, who was in the convention, and also Mr. Wright, both sought an introduction to him. The latter compli- mented him in a speech which he made in that body.


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From that time Henry K. Smith continued one of the leaders of the Democracy in the State of New York until his death.


At that convention, he made the acquaintance of Hon. Israel T. Hatch, a member from Buffalo, upon whose invitation he made that city his home. He removed there in the spring of 1837. Immedi- ately forming a copartnership with Mr. Hatch, who was then surrogate of the county, and a lawyer of great respectability, he at once commenced success- fully the practice of law in his new home. He con- tinued with Mr. Hatch until the autumn of 1838, when his business relations with that gentleman ceased.


After practicing alone for a short time, he was offered a copartnership with Hon. George W. Clin- ton, which he accepted. This period will be remem- bered in the history of Buffalo, by the formation there of several law firms, among which were Fillmore, Hall & Haven ; Barker, Hawley & Sill; Potter, Babcock & Spaulding ; Rogers & Flint; Warren, Allen & Allen. Amid this array of legal talent, Mr. Smith entered the arena of political strife. But he possessed a mind, which under strong and generous emotions, stimu- lated by collision with gifted antagonists, acquired new command of its resources, new energy of thought and new vigor of intellect. Ably sustained by a partner whose powers of mind, and legal ability, had already given him an eminent position in his pro- fession, the firm of Clinton & Smith was second to none in the city.


After continuing in this relation some time, Mr. Clinton was appointed collector of customs, and the firm was dissolved. After this dissolution, Mr. Smith practiced with Mr. Williams for a time. That firm being dissolved, he accepted a partnership with Gen- eral Isaac Verplanck, which continued for years under the most prosperous circumstances. At length it was dissolved, and Mr. Smith formed another business con-


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nection with R. U. Stevens, Esq., which continued until the death of the former.


During all these changes in business, Mr. Smith's reputation as a lawyer gradually increased, until he stood in the front rank of his profession. As an ad- vocate, he had few equals at the Buffalo bar, or in western New York. He was engaged as the counsel for one or the other of the contending parties, in most of the important trials which occurred in the city and vicinity in those days, many of which are now recorded as precedents in the reports of the Supreme Court, Court for the Correction of Errors, and the Court of Appeals. In all of these tribunals, Mr. Smith fre- quently appeared. His arguments on these occasions were regarded as able and searching forensic efforts. "They sent forth no scattered rays to dazzle with their brilliancy, but poured a steady stream of light, con- centrated upon the point they would illume."


And it was on these occasions, when "the matter matched his mind," where his highest powers were fully put in requisition, that he justified the public in the rank it assigned him at the bar. One of the strong points of Mr. Smith's professional acquirements, was his successful manner in conducting a cross-examina- tion : in this branch of practice he exhibited a sagacity, a power of reading the thoughts of the witness, of an- ticipating his answers, of ascertaining his peculiarities, his prejudices, his subterfuges, and, finally, of drawing forth "unwilling facts."


On one occasion, in the defense of a woman for mur- der, he interposed the plea of insanity. Entertaining no doubt that this was the true condition of the woman when she committed the dreadful crime, he threw his whole soul into the defense. Having, as he believed, established her insanity, he rested his case. The pros- ecution, determined on a conviction, introduced wit- nesses to establish her sanity, among whom was a certain village doctor not overstocked with learning, but making up in assurance what he lacked in acquire-




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