The civil, political, professional and ecclesiastical history, and commercial and industrial record of the county of Kings and the city of Brooklyn, N. Y., from 1683 to 1884, Volume II, Part 142

Author: Stiles, Henry Reed, 1832-1909, ed
Publication date: 1884
Publisher: New York, W. W. Munsell & Co
Number of Pages: 1345

USA > New York > Kings County > Brooklyn > The civil, political, professional and ecclesiastical history, and commercial and industrial record of the county of Kings and the city of Brooklyn, N. Y., from 1683 to 1884, Volume II > Part 142

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).

We have referred to Judge Neilson's review of Parker's reminiscences of Rufus Choate. In the Spring of 1884, Judge Neilson published a work on Mr. Choate, written with his characteristic vigor, in a style clear, forcible and vivacious. Among the great merits of the work is the intellectual strength it exhibits, its originality and the easy and varied narration of the events in the life of that great lawyer. Public opinion and the judgment of the best and fairest critics will sustain us in saying that it is by far the ablest work on Rufus Choate, ever before published. We regret that want of space prevents us from giving a more extended description of this admirable work; but perhaps regret in this direction is only confined to us, for the book is before the public and needs no review, how- ever ably written, to render it a favorite with a reading public.

It will, on its own merits, be, regarded as a standard con- tribution to American literature.

We shall now briefly consider the judicial career of Joseph Neilson, though the extent of his work during the twelve and one-half years he was on the Bench cannot be mentioned in de- tail. The causes decided by him involved many rare and diffi- cult legal questions ; for instance, as to the consideration, im-

1220

HISTORY OF KINGS COUNTY.

moral, which destroys a contract ; as to the peculiar contract which in its nature dies with the person, and cannot be revived ; as to the liability of a landlord to a sub-tenant, injured hy an ex- plosion in the house ; as to the effect of a covenant in a deed, granting land, restraining the erection of a building on a part of it ; as to the reclamation of money paid on an unfounded claim if by mistake; as to a father's right to require the Children's Aid Society to return his son who had been sent West. These, and other cases of importance, have been reported by Mr. Abbott.

In the case of Homan v. Earle, breach of promise of marriage, in which a verdict of $15,000 was recovered, a novel and peculiar question arose. Both the plaintiff and defendant were examined, and testified that no request to marry and no promise to marry was expressed. The testimony at large was to the effect that the defendant had paid great attention to the plaintiff. Visits and devotion continued through several months. Thereupon, Judge Emott, counsel for the defendant, moved to dismiss the com- plaint, on the grounds that, as appeared from the undisputed testimony, there was no promise of marriage ; that the prac- tice which had prevailed before parties could be witnesses, of allowing a jury, upon proof of intentions, circumstances, to infer a promise to marry, no longer prevailed. The question was im- portant. In his charge to the jury, Judge Neilson, after stating that there must be a contract and a proof of it, or the plaintiff could not recover, said : " If all the circumstances, taken together-words, attentions, demonstrations, more or less earnest, assiduous and affectionate-amounted to a declaration of an intent to marry her, to an assurance that that was what he sought-was his conclusion-if he intentionally led her to so un- derstand it, and she, in response, accepted that declaration; if there was a meeting of minds on that as an engagement between them to marry, the implied contract necessary to sustain the action has been proved." Thus, and in other ways, the judge taught the jury that the contract to marry could be made without words-a doctrine that excited much criticism. But it was affirmed at the General Term and by the Court of Appeals (12 Ahb. R., N. S., 402 ; 53 N. Y. R., 267). It may be safely said that a more clear-cut proposition of law was never stated than that quoted above, yet it was conceived and uttered in the haste and exitement of a jury trial.

We cannot pursue these cases further, though we pass by some of novel interest, including that in which the judge held that a married woman could maintain an action for damages against another woman who had enticed away her husband-the first case of this kind ever tried in this State.

It was the fortune of Chief Justice Neilson to preside at one of the most remarkable trials recorded in the legal history of this country. This was

The Tilton-Beecher Case .- Though the excitement, the pas- sions and the prejudices which this great case engendered have nearly passed away (forgotten with the allegations on which it was founded and on which it was defended), it is still invested, and always will be, with an historic interest. This interest is much the same as that with which we regard the history of some great battle of the past, without giving much attention to the causes which led to the war in which it was an event, because of its "magnificently grand array;" its splendid generalship; its brilliant manœuvring; its dashing charges; its attacks and its repulses.

After an exciting preliminary contest, brought on by a motion for an order compelling the plaintiff's lawyers to produce a bill of particulars of the allegations in their complaint, the trial in chief commenced on the 11th of January, 1875, occupying 112 days.

Samuel D. Morris, Thomas E. Pearsall, Roger A. Pryor, Austin Abbott, Wm. Fullerton and Wm. A. Beach, were for the plaintiff; Thomas G. Shearman, John W. Sterling, John K. Por- ter, Benjamin F. Tracy, John L. Hill and William M. Evarts, for the defendant. A more imposing array of counsel never ap- peared in any case-men of great learning and experience, of high character in public and professional reputation. The pleas of counsel, and many arguments upon questions of special and novel interest, will be found in the report of the case, in three volumes. Another report, with legal notes by Mr. Abbott, is

given in two volumes. The cause was opened for the plaintiff by Judge Morris, in an address of much force and brilliancy with dexterous detail of facts which effectually put the jury in posses- sion of the full knowledge of the plaintiff's case. The defense was opened by Mr. Tracy, since a distinguished judge of the Court of Appeals. If, as was asserted by Lord Eldon, a case that is well opened is more than half tried; the opening of Judge Tracy greatly accelerated the progress of this trial. It was a mas- terly legal effort. In the progress of the trial, all the counsel engaged in it, like Homer's heroes before and behind the walls of Troy, took part in this great legal contest. Mr. Pryor, as ap- pears from the report of the case, as occasions arose, was lumi- nous in his presentation of the law; while Mr. Shearman, with equal force and incisive eloquence, often discussed difficult legal questions, and each of the lawyers named won fresh for- ensic honors in sustaining the parts assigned them in the case. As was said of Chief Justice Marshall in the trial of Aaron Burr, Judge Neilson, "calm, dignified and attentive analyzed the arguments of counsel, noted their relevancy with the nicety of a critic, justifying the reputation which he always had of spotless purity and soundness of judgment," and yet perhaps no trial at nisi prius ever so completely tested the patience and endur- ance of a court; no judge ever more fully felt the responsibility of his trust or discharged it with more courteous firmness, with more of that "close investigating faculty which ought to belong to those who sit on the Bench."

While the Chief Justice often sought to shorten the arguments to lessen delays, and hurry forward the counsel, he was not in- sensible to the fact that something was due, that much was due to the judgement of counsel seeking to discharge their professionsl duties. His patience was proverbial, and there was an acqnies- cence of counsel in his rulings and decisions not often seen in any trial, especially in trials of this importance.

The evidence in this case closed on Tuesday, May 18, 1875, the eighty-fifth day of the trial; the remainder of that trial was devoted to the argument of the respective counsel, which ex- hausted twenty-three days. The case was presented to the jury by distinguished advocates in a manner worthy of its import- ance, and with an earnestness evincing a strong conviction felt by them that the law and the right was with them. A degree of eloquence seldom displayed on any occasion emhellisned a solidity of argument which must greatly have aided the jury in their deliberations; these arguments will always be read with the deepest interest. The argument in support of the defend- ant was opened by John K. Porter, on the morning of May 19. The reputation of the speaker and the occasion summoned to the court-room an immense audience, composed of the most prominent citizens; never was there an andience more highly gratified; "every fact, suggestion or implication involved in the testimony-almost incredible power of clear and brilliant illustration and methodical arrangement-characterized the address. A striking feature of it was the force with which little points of evidence, mere momentary flashes of light cast by brief, and almost unnoticed expressions of the witnesses, were brought to bear by the skillful orator."

Mr. Porter closed his great speech in the following besutiful peroration:

" I am reluctant to part with this case, for there are, and there always will be to all of us, pleasant memories connected with it. Painful some; pleasant many. * * I know not, your Honor, what to say in acknowledgment of that kindness with which we have all been treated by you. Ordinarily, it would he merely the ex- pression of sincere feelings of gratitude which is naturally in- spired by long-continued kindness and consideration, but as it happened at the earlier stages of this case that oft-times, in the view of his Honor, decisions were made from which we felt we suf- fered injustice, I desire now to say, at the close, that I feel he judged wisely and well, and that on a great issue like this it was equally due to the plaintiff and to the defendant, to all the public interests involved, that the broad door should be opened for the admission of any evidence in respect to the advisability of which there was even a doubt. His Honor felt, and showed that he felt, that it was due to justice that everything that could be submit- ted to the jury that would aid their deliberations should be be- fore you, gentlemen; and feeling thus, it is a matter of sincere gratification to me that I have the opportunity now, that all may share with me the same feelings, of expressing our sense of respect for the eminent ability, the impartiality, the known in- tegrity, the purity of character of that eminent judge, worthy, if not quite of the honored position among jurists of that grest and eminent kinsman of his who now sleeps by the waters of Otsego Lake-a name which will be honored through all time ; and yet I am not sure that the name of the jurist who presides on this memorable trial will not endure quite as long, for it his misfortune, and yours, gentlemen, that through circumstances which you could not have foreseen, his name and yours are to go

1221

BENCHI AND BAR OF BROOKLYN.

down to posterity together, always associated with a trial which will be memorable through all future time."

On Thursday morning, May 27th, 1875, Hon. William M. Everts began his argument in favor of Mr. Beecher. Mr. Evarts' appearance on this occasion is thus described :

"His voice during most of the time was pitched in a clear, ringing tenor, only occasionally dropping into a deep bass. He speaks very deliberately, with quiet but telling gestures, and in- clinstions of the head ; his slender figure bears some resem- blance to full-length portraits of Henry Clay. His face is thin and pale, his features clear-cut and classic ; his bright blue- gray eyes twinkle with merriment when he tells n humorous story, but look hard and earnest when he is in the midst of n serious argument. His sentences are usually rounded out with rhetorical precision and polish, and he made frequent classical and historical references and quotations."

"I could wish," he said in his exordium, " that I possessed the moral power. of stripping all discordant elements, rejecting all poisonous oils, all corrosive acids, all heavy heat of passion and of prejudice, and present to you the pure and invigorating wine of honest sympathy for human nature, of honest warmth for human justice. And then I could wish for that greatest gift, eloquence-eloquence which, overleaping even the short circuit between the voice and ear, speaks out from heart to heart, as face gnawereth to face; and what a great thinker among mankind, Lord Bacon, has said is more than eloquence, discretion of speech, that no excitements, no perversions, no enlistments. no animosity should carry him beyond the duty to his client, to justice, to truth, to his opponents, and to you."

He closed this address of unparalleled ability in the following generous and finely-worded allusion to the Court : " And now, if your Honor please, we must acknowledge with respectful de- ference the disposition and the order of this solemn and inter- esting trial-so interesting to these parties, to this community, to all Christendom, to all the future of history, and to acknow- ledge that if there be any miscarriage of justice, your skirts will be free of it ; and also to admit that in the actual experiences of the course of things in this trial, the anxieties and solicitudes that made it so urgent to have the limits secured by definite orders of the Court, under the assignment of particulars of the charge, have proved to be necessary, for we have not had any evidence at all, of any time or place, by any witnesses, going outside the charges in the complaint."

On the morning of the 9th of June, Hon. William A. Beach commenced the closing argument for Mr. Tilton, in some respects the most remarkable argument made on the trial. He was suffering from neuralgia, and occasionally stopped at the end of a sentence, as if to conquer pain. He was also slightly hosree, but his utterance was distinct and his manner impres- sive; he is one of those speakers who, without any apparent effort, enchain attention. His argument was full of stirring pas- ssges, which seldom failed to stir enthusiastic interest among his hesrers, which was often exhibited by slight applause. He spesks more rapidly than either Mr. Porter or Mr. Evarts, but his gestures are very powerful and expressive ; his features and manners are stern, while his piercing gray eyes give severity to his look, especially when speaking very earnestly. In the course of his argument, Mr. Beach pleasingly referred to one of his dietinguished opponents-Hon John K. Porter-whose ad- dress to the jury he said " is a most remarkable and powerful effort. There is no gentleman in or out of the profession for whom I feel a more unfeigned esteem and respect ; none in the profession whose qualities as a lawyer I more admire. For years I have been accustomed to see him in the very front rank of professional controversy, justly receiving the lottiest honors of our profession." These beautiful remarks were elicited in allu- sion to the fact that Mr. Porter, as might be thought by some, Occupied a secondary place in this trial, and he makes this happy reference: "No lawyer of our profession, eminent even 88 Mr. Porter is, would be at all dwarfed by following the lead- ership of a gentleman whose place is so elevated at the Bar, as is Mr. Evarts." And then he wittily says : "Mr. Porter's humi- liation, ifany, consists in having espoused the case he has." In Another part of his argument Mr. Beach refers to his associates as follows : "I must not forget my obligations to my learned, noble, tried associates. If any merit attends my efforts it is due to their sagacity, their counsel and wise promptings. Posting me in the front of this battle, they have yet stood its true leaders and champions." Referring to the Court, he said: "May it please your Honor, it needs not that I should express the common senti- ment of my associates and myself, as we recall the intelligent dignity and fearless learning with which you have guided us through the tangled mazes of this trial. You can receive no nobler tribute than that offered by our adversaries. Contesting every position with animated zeal, and sprinkling this record with objections, they acknowledge with inimitable candor the

entire accuracy of your Honor's decisions. Your Honor, there- fore, has the gratification to know that you have worked no in- justice to this defendant."

In closing the case, Mr. Beach made the following splendid allusion to Mr. Beecher:

"I leave this case without the slightest asperity of feeling towards nny, filled with unaffected admiration for the great abilities of the defendant in this case. No man venerates more profoundly than myself his magnificent genius; his large con- tributions to the literature of the times excite the sentiment of which Macaulay speaks in his essay on the life of Lord Bacon." To the jury he said, quoting the language of Webster: "With consciences satisfied with the discharge of duty, no conse- quences can harm you. There is no evil that we cannot either face or fly from but the consciousness of duty disregarded. A sense of duty pursues us ever. It is omnipresent, like the Deity. If we take to ourselves the wings of the morning and dwell in the uttermost parts of the earth, duty performed or duty vio- lated is still with us, for our happiness or misery; and if we say darkness shall cover us, in darkness, as in light, our obligations are with us. They are with us in this life-will be with us at its close."

Before the Chief Justice charged the jury, Mr. Abbott, one of defendant's counsel, submitted to him a series of requests to charge. The judge then proceeded to give his instructions to the jury in a charge clear, direct, simple, and adapted to the com- prehension of the jury. He proceeded to arrange and classify the evidence which had been taken; a portion of it going to the real question before them, another portion to matters of refer- ence, and yet another to the mere question of damages; the jury were taught to distinguish direct from presumptive and circum- stantial evidence. The whole performance was admirable ; so pronounced to be by eminent judges and lawyers, and hy the press. Having closed his charge, the judge took up the fifty- three requests to charge which had been presented by Mr. Abbott, and pronounced an opinion as to each of them with great clear- ness. Judge Neilson's quick and yet profound appreciation of those propositions, the firmness with which he considered them, promptly declining some and as promptly accepting others, stating his reasons as to each, was among the most difficult duties that devolved upon him at the trial. Having closed, he ad- dressed himself to the counsel, who had been eagerly intent upon every word he had uttered, and propounded the emphatic and momentous question:

"Gentlemen, are you content ?"

In answer Mr. Beach said, " We are, sir ;" Mr. Evarts said, "Yes, sir."

We have to add the most remarkable fact: there was not an ex- ception taken to any part of the charge, by either counsel.

It would be interesting to know that such concurrence and commendation, ever before or since, have been witnessed in a like case-the toil and excited discussions of counsel so learned, critical and exacting, brought to such beautiful unanimity. We can recall no such instance.

The charge of the learned court had been looked for with great interest and expectation by judges and lawyers everywhere. The public journals in other States, as well as in this, were speculating as to what the charge would he; the questions, " What can the judge do with the case ?" " What will the charge be?" It was published in the newspapers in the most distant States, and read with avidity.

But perhaps the best review of it was contained in the Albany Law Journal, from which we make the following quotations : "The brief charge to the jury of Judge Neilson, in the Tilton- Beecher case, is a marked contrast with the address of Lord Cockburn in the Tichborne case. The address of the former occupied only one hour and a half, while that of the latter re- quired many days, and fills two ponderous volumes.' The vast variety of topics, social, moral, religious, political and legal, which were connected with the Tilton-Beecher case, gave the counsel on both sides, and the judge presiding, a splendid oppor- tunity to air their learning, their fancy, their rhetoric and their

1222

HISTORY OF KINGS COUNTY.

logic. This opportunity the counsed accepted, but the judge modestly, and we think commendably, refrained from the dia- play of anything but what the necessities of the case required. His charge is a model of clearness, precision and force. It seems almost incredible that the case could have been presented to the jury adequately in so few words. But a careful purusal of the charge shows that nothing was left out which was necessary to the complete presentation of the case. The whole address bears marks of the most patient and careful consideration of all the material evidence, under the most wonderful condensation. The spirit which breathes through the address is one of the ut- most fairness and impartiality. The counsel on both sides expressed themselves satisfied, and this of itself is a high testi- monial to the freedom from bias which the charge evinces."

The result of the trial is too familiar to the public to require any description here; as we said, it stands first among the great trials of the nation. Perhaps, in some respects, the trial of Aaron Burr presented more comprehensive and enlarged ques- tions of law, especially the law touching the overt acts ot treason. The trial of Warren Hastings, on the Begum charge, in England, conducted by the greatest British lawyers, created but little more sensation than the Tilton-Beecher trial. The Guiteau trial possessed more elements that aroused passion and resent- ment, as the murder of an illustrious statesman, the President of the Republic, was its origin. But all these trials have taken a prominent place in history.

To the regret of the profession and the public, the judicial career of Chief Justice Neilson terminated on the last day of December, 1882, he having arrived at the age of 70, the age at which, by the provisions of the Constitution, he was disqualified from discharging the duties of a judge. There were in the public journals of all parties, and by the profession, and by the public generally, expressions of regret on the occasion of his leaving the judicial service. He retired from the Bench to private life with that dignity and under circumstances which shed great lustre upon his character.

We relate a pleasing incident, expressive of the high esteem in which the Bar holds the ex-Chief Justice, which occurred six months after his retirement. Sometime in the spring of 1883, his Brother lawyers, in a cautious address, requested him to sit to an artist of their selection for his portrait. Among other things, this address says:

"The members of the Brooklyn Bar are desirous to testify their affectionate esteem for you by placing your portrait in the City Court of Brooklyn, where you have so long and faithfully presided." That request having been complied with, and the portrait by Jensen, a celebrated artist, having been finished, it was presented to the court with an address signed by the Bar, which was also published, and from which we make the following ex- tract:

"The undersigned, members of the Brooklyn Bar, beg leave to present to the court a portrait of the Hon. JOSEPH NEILSON, who retired from the position of Chief Judge, on the 1st day of January last. Judge Neilson, while on the Bench, by his admirable personal characteristics, strict impartiality and legal attainments, acquired the full confidence, respect and personal regard of not only the legal profession, but of the community at large. As an enduring testimony of this feeling on the part of the Bar, and a well-deserved tribute to his public services and high character as a judge, we bave the honor to present this por- trait, and request that it may be permitted to adorn the walls of the court-room in which Judge Neilson presided so ably and 80 long."

At its General Term, May 22, 1883, present-Hon. Alexander McCue, Chief Judge, presiding; Hon. George E. Reynolds, and Hon. Nathaniel H. Clemens, associate judges, the court made the following order:

"On reading and filing the communication signed by the Hon. James Troy, Hon. John H. Bergen, and other members of the Bar of the County of Kings, presenting the portrait of the Honorable Joseph Neilson, late Chief Judge of this Court, it is ordered that the gift of the said portrait of our late associate and

Chief Judge be accepted with the thanks of the court, and that, in compliance with the request of the donors, the said portrait be permanently placed in the court-room; that in accepting this gift we cordially approve of all that is contained in the letter accompanying said gift. It is further ordered that the com- munication, with order, be entered on the minutes of the Gen- eral Term of this court."

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.

The civil, political, professional and ecclesiastical history, and commercial and industrial record of the county of Kings and the city of Brooklyn, N. Y., from 1683 to 1884, Volume II, Part 142

Author: Stiles, Henry Reed, 1832-1909, ed Publication date: 1884 Publisher: New York, W. W. Munsell & Co Number of Pages: 1345

Author: Stiles, Henry Reed, 1832-1909, ed
Publication date: 1884
Publisher: New York, W. W. Munsell & Co
Number of Pages: 1345