USA > New York > Orange County > The history of Orange County, New York > Part 45
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But the waters of a cruel, though often kindly, oblivion can never wholly submerge the fine superstructure of judicial fame reared by Judge Michael H. Hirschberg upon a foundation of singularly exclusive, concentrated, severe, professional, intellectual and literary training. Born and reared
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in Newburgh, but coming to practice at the bar without those intermediate college advantages enjoyed by his life-long friend and associate, Judge Brown, whom he succeeded upon the bench, he has, nevertheless, strik- ingly-verified the saying of Carlyle that, after all, books are the best uni- versity. During all the years of his professional activity in Orange County he sedulously, patiently wrought out, cultivated and perfected a crisp, nervous, virile, epigrammatic, yet withal, polished, mellifluous, or- nate and opulent English style which constituted an admirable discipline and equipment for the very field of juristical service in which he was later destined to engage.
Elected in 1896 to a seat upon the bench, he was, after a brief period of service at trial and special terms, assigned to the Appellate Division, and later, upon the retirement of Judge Goodrich, he was appointed the presiding justice of the court. This was the opportunity for which his slumbering, but not unready, accomplishments long had waited. Then ensued the disclosure to his judicial associates and to the bar of the State of those attainments as a writer and as a jurist, which had long been known to the bench and bar of his county and his district. While com- parisons are often more dangerous than odious his career almost inevit- ably reminds one of that literary lawyer, known then chiefly for his writing of "The Blue and the Grey," who was summoned by his friend, Governor Cornell, from his scholarly seclusion at Ithaca to take a seat upon the bench of the Court of Appeals ; and who thereupon enriched the literature of the law with a body of opinions, unrivaled for English style and judicial learning, which have entranced and instructed two genera- tions of lawyers. Equally true is it of Judge Hirschberg that already has he permanently enriched the Reports of the Appellate Division with a series of opinions which, for lucidity of statement, force of reasoning, felicity of style, and perfect command of the literary implements adapted to the expression of exact distinctions or delicate discriminations, stand unrivaled in the pages of these imposing volumes, which will Jong per- petuate his fame as a judicial writer.
One characteristic of Judge Hirschberg during his brief service in holding trial terms should be mentioned, because no ponderous tomes can reveal character. Contemporary history must transfix for posterity the personal traits and manners of a judge. When Judge Hirschberg was elected even his intimate friends supposed. from long familiarity with his
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extraordinary quickness of mental action, his scintillations of repartee in social life and his swift rejoinder at the bar, that he would show some im- patience with the slowness, dulness and density due to imperfect prepara- tion or inherent inaptitude, which every judge is called upon, more or less frequently, to endure ; that he would find it difficult to restrain the bubblings of wit and sarcasm at the expense of ignorance or incapacity. But on the contrary, he proved to be the most gentle, indulgent and long- suffering of judges. The wearisome lawyers might drone on, he made no effort to take the trial of the case out of their hands and try it himself. ¿ze could try it better than they, but he felt it his duty to let them try it in their own way. No one could tell what he was thinking of them or their methods. He might be a maelstrom of seething disgust or amusement within ; but he wore the impassive, inscrutable, incommunicative exterior of a sphinx. Under the responsibility of his great office he unconsciously developed and engrafted that quality which Judge Jenks in his impressive eulogy upon Judge Wilmot M. Smith declared to be almost the greatest attribute of a judge-infinite patience. .
And since the entire bar of Orange County regarded with peculiar af- fection the character of Judge Smith and now holds in deepest veneration his sacred memory, it is not amiss to incorporate in this record that ex- pression of its feelings by Judge Hirschberg himself, which sheds a re- flected light upon his own standards of duty and with which this attempt to limn his portrait for succeeding generations may fitly close :
"Judge Smith was truly an ideal jurist, profound as a lawyer, estimable as a citizen, lovable as a man. The mortal part of each life ends neces- sarily in nothing but an insignificant contribution to an immense volume of pathetic dust, but the spiritual sense is satisfied when, as in this instance. the ashes are sanctified with the memory of a noble life devoted to duty and glorified with the love of God, of justice and of humanity."
And now, having sought to project upon the canvas a faithful por- traiture of the judges who were drawn into the public service from the Orange County bar, within the period embraced in these personal recol- lections, it is convenient and fitting at this time to briefly outline the condi- tions of practice which prevailed in Orange County at the time they came to the bar-Judge Dickey in 1866 and Judges Brown and Hirschberg in 1868-when Winfield, Gedney and Fullerton were at the zenith of their powers and their reputation. It is a great mistake to assume that the
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older members of the bar were satisfied with these conditions. On the contrary, they bitterly chafed under them. The number of judges was wholly inadequate to the needs of the district, as will readily be seen when it is considered that twenty-five judges are now required to serve the same territory then covered by only four judges upon whom devolved all the motions, trials and appeals arising and heard within it. The ever-increas- ing volume of business created by the rapid growth of Brooklyn made it impossible for the judges to hold a trial term-then called the "circuit term"-longer than five days. The judges were indeed upon a circuit, for they were always under assignment to open court in some other county on the following Monday. Every Thursday afternoon or Friday morning the judge marked off the calendar every case which could not be tried in time to enable him to leave on Friday afternoon in order to hold his Sat- urday special term. This arbitrary, inexorable limitation of time, which was equivalent to shutting out many cases that had been carefully pre- pared, was most cruel to the younger members of the bar whose sole chance of either emolument or distinction lay in getting their cases tried : while to say that these conditions were satisfactory to the older members of the bar of that period would violate the truth of history. They always un luly and often indecently accelerated the trial of important cases in which advocates like Winfield and Gedney were spurred to an undignified celerity which was not merely distasteful but detestable to them. Both Winfield and Gedney were tenacious of dignity, deliberation and decorum in the administration of justice. They disliked extremely to be told. "Go on with the case, gentlemen," or to be askel. "What are you waiting for?" They could not share the glee manifested by the judge when he succeede ! in having three juries "out" at one time, an'l boastel to the justices of Sessions at his side how he was "expediting the business." They, too. wanted the business advanced, but they wanted it done with due regar I to the traditions and the usages of the bar. Winfield was especially the dis- tinct representative in this county of the old Websterian school of advo- cates. He believed earnestly in the maintenance of all that form and dignity, of all those ancient usages and proprieties which once uniformly marked the relations to each other of the bench and bar. When in 1874 I met him in Albany to argue my first case in the Court of Appeals, then presided over by that most urbane jurist. Judge Sanford E. Church, Mr. Winfield carefully attired himself on the morning of the argument in a
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full-dress black suit with its broad expanse of shirt front, now used only for evening wear, but regarded at that time as a suitable uniform for ap- pearance before the highest court in the State ; just as, at a slightly earlier period, Webster and Pinckney appeared before the Supreme Court at Washington in blue coat and brass buttons, with buff waistcoat. How different from the present when able lawyers in short sack coats of gray, looking like commercial travelers, hasten from the Albany station to the two o'clock sessions of the court without stopping to even remove the dust of travel before launching into their keen and brilliant arguments.
When Judge Joseph F. Barnard, of Poughkeepsie, upon the transfer of Judge Lott to the Court of Appeals in 1869, became the presiding judge of the old general term, he became also the presiding genius, the dominating, all-pervading spirit of the second judicial district. He was opposed to any increase in the number of judges. With his insatiable voracity for work and his preternatural velocity of thought, enabling him to accomplish as much alone as the other three judges combined, he thought that four judges ought to be fully able to keep up with all the business of the dis- trict ; as indeed they were if the administration of justice, involving the most profound issues of human life and society, had been merely a matter of getting the business out of the way, as on a wharf, to make room for the next cargo.
The judges, fresh from their several circuit terms, met in the general term and proceeded to hear appeals from the decisions made by themselves at special and trial term. It was, indeed, an impressive, inspiring and solemn spectacle to see Judge Tappen and Judge Gilbert gravely consider- ing whether they would reverse Judge Barnard; and in the next case Judge Tappen and Judge Barnard sitting upon Judge Gilbert. Of course the tacit challenge, "You reverse me, I'll reverse you," pervaded all the proceedings. Nothing else could be expected of human nature. It has never been pretended that the State supplies lawyers with any superior, exclusive brand of human nature when it gives them their diploma, and judges are simply lawyers upon the bench. That an appellate system should ever have been devised so exquisitely adapted to defeat its object and destroy respect for its operations was not, of course, the fault of the judges of the second district.
When the general term sat in Poughkeepsie, as it did every May, to accommodate Judge Barnard, the business was disposed of even more
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rapidly than in Brooklyn, Judge Barnard greeting with delight any lawyers who would appear at eight o'clock in the morning, both ready to argue their appeal in advance of the regular session. The judges con- stantly interrupted the attorneys to assure them that they could not possi- bly remember what they said but that they would read their briefs. It was of course true that no human mind could retain or even grasp the argu- ments discharged at the court as from a catapult by attorneys gasping for breath in the mad race against time.
Some amelioration of the intolerable conditions under which circuit terms were held in Newburgh and Goshen was effected through the elec- tion in 1870 of Judge Calvin E. Pratt, whose conservatism, affability and dignity won for him universal respect. This improvement was extended by the election in 1880 of Judge Edgar MI. Cullen, whose high sense of absolute fairness to all suitors alike led him to devote as much time and thoughit to a case involving a trifling amount as to one involving large in- terests; though even he was merciless in his infliction of night sessions upon the attorneys during the hot June term at Goshen, a course to which he felt impelled because of his inability to remain longer than one week and his desire to crowd as much work as possible into that wholly inade- quate time.
The comfort and convenience of the Orange County bar and the in- terests of litigants were served to a still greater degree by the election in 1882 of Judge Charles F. Brown. Though he could not extend the trial terms beyond two weeks, on account of his assignments to other counties, still he held a special term every Saturday at Newburgh where. by con- sent of counsel, many cases were tried that otherwise would have been tried before a jury, thus affording great relief to the overtaxed calendars of the trial terms.
From that time to the present there has been a steady reaction against feverishness and ferment as a suitable atmosphere for judicial proceedings and a gradual return to calm, neutral, deliberate, dignified. decorous methods of judicial procedure, until finally, for the first time in the history of the county, a four-weeks' term of court was held in February, 1907; this being one of the first fruits of the formation of the ninth judicial district, consisting of the river counties alone-a change which was op- posed by some Orange County lawyers but which is now generally recog- nized as, in the highest degree, conducive to the convenience and interests
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of the bar and of the public, though it does involve some additional burdens upon jurors.
Forty years ago the familiar excuse made by judges for dispatching business with unseemly haste was their solicitude for the time and con- venience of the jurors. Indeed there never was a judge more popular than Judge Barnard among jurors, witnesses, spectators and the public. They admired the celerity of his movements and they were vastly enter- tained by his caustic remarks to counsel. But his remarks about counsel and witnesses during the progress of the trial were far more entertaining and racy than any the public was permitted to hear. The favored persons privileged to hear these were his associates upon the bench of the old Oyer and Terminer, since abolished and now merged in the Supreme Court. They were drawn from the justices of the peace of the county and with the presiding judge constituted the criminal branch of the court. Squire George A. Durland, of the town of Greenville, who sat in this capacity next to Judge Barnard at many terms of court, never tired of telling about the trenchant, scathing, witty commentary kept up by the judge upon every incident of the trial, the counsel engaged in it and the witnesses sworn upon it.
During Judge Barnard's entire tenure of office the plea of not taking up the time of the jurors was invoked to override every other consideration. Not even death itself was superior to it or sacred from it. When Mr. Winfield died on the tenth of June, 1888, and court convened at Goshen on Monday, the eighteenth of June, Judge Cullen suspended the regular business of the court at four o'clock to allow a suitable tribute to his memory, including several addresses in addition to the resolutions. But when Judge Gedney died, a month later, there was no opportunity to take formal action upon his death at a trial term until the regular No- vember term. Accordingly, when court convened at Newburgh the twelfth of November an informal request was made to Judge Barnard for an opportunity to pursue the same course in respect to Judge Gedney's memory that had been adopted at Goshen in respect to Mr. Winfield. Judge Barnard promptly and firmly refused to allow the time of the jurors to be taken up in this way, adding: "Why, he's been dead some time, hasn't he?" So it became necessary to change the plan and to offer simply a motion "that a committee be appointed to present at a meeting of the bar of Orange County to be hereafter called suitable resolutions." That there
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should be further delay in honoring the memory of this great lawyer and brilliant advocate, after there had already been a necessary delay of four months, is not a reproach that rests upon the bar of Orange County. As the motion occupied only two minutes it was promptly granted and the committee purposed to present the resolutions at the following term of court to be held at Goshen in January, 1889, which was expected to be presided over by Judge Brown. But when Judge Brown was transferred to the Court of Appeals he became disqualified from holding the term an 1 Judge Barnard unexpectedly took his place. Admonished by previous ex- perience no attempt was made to present the resolutions at that time or to apply for permission to make addresses in honor of Judge John G. Wilkin, who, also, had meantime died. So the tributes of the Orange County bar to Judge Gedney, Judge Wilkin and Surrogate Henry A. Wadsworth, whose death also had occurred, were massed together at a meeting of the bar presided over by Judge Brown on Saturday, the second day of February, 1889, seven months after the death of Judge Gedney, without those customary adjuncts to the dignity of the occasion-the crowded court room: the attendance of litigants, jurors and witnesses from all parts of the county : the solemn pause in the business of the court ; the impressive silence ; the strained, eager attention of old friends in the andience to the last tributes of respect for one they loved : all of which were not only appropriate but, indeed, imperative in honoring one who had so often held that very court room silent, captive, enthralle 1 by the spell of his genins.
If Judge Gedney's brethren had felt, in the first instance, that a tribute to his memory at a mere meeting of the bar would be appropriate and adequate, it would not have been delayed seven months, as such a meeting could have been called at any time after his death. That it was not so called shows the strength of a sentiment which was ruthlessly trample ! upon by judicial contempt not merely for all the traditions of the bar bit for all the sacredness of love and death.
At the same time the bar always recognized with gratitude the earnest desire on the part of Judge Barnard to transact all the business that he could and to accommodate the bar as much as possible. It was this dis- position that led to his constant signing of er parte orders without looking at them, trusting to the honor of the bar not to impose upon him and. also, to a motion hy the other side to vacate any improvident order. The
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lawyers, through long custom, so came to prefer this system that they resented any departure from it by new judges who could not take this view of their duties. When Judge Brown's transfer to the second division of the Court of Appeals led to the Newburgh special terms being taken by Judges Cullen and Bartlett, the bar practically boycotted them in favor of Judge Barnard's Saturday term at Poughkeepsie, merely because both Judge Cullen and Judge Bartlett manifested a very decided preference to know what they were signing. Gradually, however, the lawyers learned that this course was not intended as a reflection upon the bar, but as a help to it, in preventing any such mistake or oversight as might lead after- wards to serious consequences. Of this I once witnessed a striking illus- tration. An attorney desired an order to examine a party before trial in a case in which the examination of his adversary was absolutely essen- tial to his success in the litigation. Judge Bartlett sent the affidavit back to him three times for correction and the order was finally sustained in the Court of Appeals because of the sufficiency of the affidavit. All this involved to Judge Bartlett conscientious labor and minute examination which he might well have shirked and which judges generally consider counsel have no right to expect of them or to impose upon them.
Judge Barnard was the most conspicuous of all the judges in his anxiety to save the lawyers the trouble of travel in order to transact their business. He instructed the Orange County attorneys to mail to him an order desig- nating a referee of their own choice, to compute the amount due in fore- closure cases, with the report of the referee signed by him in anticipation of his appointment, together with the judgment of foreclosure : where- upon he signed at the same time both the order of reference and the judg- ment of foreclosure, promptly mailing them back, although it was physi- cally impossible that the referee should have acted in the interval between his appointment and the judgment. This practice, which is now regarded as irregular and which even the most accommodating judges now dis- countenance, resulted in no harm, for it rested upon the most implicit good faith on the part of the attorneys, while the confidence of the judge was never, in a single instance, abused. An incident strongly illustrating this trait of Judge Barnard also grew indirectly out of Judge Brown's transfer to the Court of Appeals. Judgments of foreclosure in cases in Sullivan County had usually been taken before Judge Brown at New- burgh because, though in another judicial district, Orange County is an
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adjoining county and this is permitted by the code. But soon after judge Brown left Newburgh an attorney, overlooking the fact that Dutchess County does not adjoin Sullivan, sent the papers in a Sullivan County foreclosure case to Judge Barnard to be signed by him on Satur- day at Poughkeepsie. His eagle eye at once noticed that the action was in Sullivan County and that he had no jurisdiction to act in the case in Dutchess County. Any other judge would have returned the papers, calling attention to the difficulty. But did this satisfy Judge Barnard? Not at all. This would not have advanced the business. This would not have "helped out the boys." So he struck out the word "Poughkeepsie" in the order and judgment and in his own handwriting substituted the word "Newburgh." thus making himself, by a legal fiction, sit in an adjoining county for five minutes, for the purposes of that case, though he was actually in Poughkeepsie all that day, and though he never held a Saturday special term in Newburgh in all his life. Judge Cullen and Judge Bartlett would have felt that they were inviting impeachment by such an act, and yet Judge Barnard was moved solely by the desire to facilitate the business of the attorneys in every possible way. To him an irregularity meant nothing unless it meant also a wrong. But those days have passed and have been succeeded by better days, in which it is recog- nized by the courts and the lawyers alike that they should co-operate in making even their routine practice so regular as to exclude any possibility of error.
There will be no sigh in this retrospect over the better days of long ago, no wail about the "good old times." The better days are now and the good times have come at last. The new generation of lawyers now enter- ing upon their active career has reason for gratification that the facilities for the orderly, deliberate, tranquil trial and hearing of their causes, with the prospect that even and exact justice will be rendered in them, are greater to-day than at any previous period in the history of the county. There never was so good an opportunity for a young, ambitious, able advocate to win fame at the bar of Orange County as there is to-day. While the subjects of litigation and the conditions of business have some- what changed in the last fifty years, human nature has never changed. Juries respond to-day as readily as then to the touch of a master spirit. When jurors ask nowadays why they do not hear such speeches at court as their fathers have told them about the answer generally given is that
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judges frown upon anything like display and hold the lawyers down to business. The business of an advocate is to make a good speech and no judge ever was able to stop a good speech. Let no young lawyer seek indolent refuge in the pretext that the judges will not give him a chance. Let him not, with difficulty, fold his restless pinions lest they be arrested in their soaring flight by judicial insensibility. No, the reason that forensic eloquence has so lamentably declined in Orange County lies not in the hostility of judges, but in the absorption of lawyers themselves in the merely material, sordid aspects of life, to the exclusion of any interest in those liberal arts and erudite pursuits which alone can anoint the hesi- tating lips with the honey of eloquent discourse. The field is clear for another Winfield or Gedney.
It is the fashion to say that the influence of the bar has declined -- that the legal profession, as a body, does not enjoy the same measure of pub- lic respect which was paid to it in the early days of the republic, or exer- cise now that ascendency over public opinion which once it exerted so powerfully and so naturally. It is true, indeed, that coincidently with the stealthy, sinister growth in the Northern States of the modern machine methods of party management the lawyer has been gradually and inevit- ably displaced as a leader of public opinion. It is only in the South that the influence of the lawyer among the masses is still unshaken because there the appeal of candidates is still made directly to the people who. through their primaries and in other republican ways familar to the fathers and founders of the nation, express their preference and give effect to their choice.
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