USA > Vermont > Orleans County > Biography of the bar of Orleans county, Vermont > Part 12
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This was the more remarkable, inasmuch as state and county were overwhelmingly whig in point of political preference. Declin- ing renomination, he devoted himself with renewed assiduity to legal practice. In 1844 he was admitted as a practitioner into the United States Supreme Court. In 1847 he was elected chairman of the state democratic committee, of which he was a member, and in each of the ten following years was re-elected to the same posi- tion. To the national democratic conventions of 1844, 1848, 1852 and 1856, he was a delegate, and in the two latter years was chair- man of the Vermont delegation. In the national democratic con- vention assembled at Cincinnati in 1856, he was made a member of the national committee, and by it was chosen to the chair. Of Stephen A. Douglas, his old comrade and school-fellow, who was also a native of Addison county, he was a zealous, personal, and political friend. Nor was he on terms of less intimacy with Gen. Franklin Pierce, who, upon his accession to the chief magistracy in 1853, tendered to Mr. Smalley the appointment of minister to Russia, Spain and Austria, and to the solicitorship of the treasury successively. All these honors were declined. He did, however, at the earnest solicitation of the president, accept the office of col- lector of customs for Vermont, for the reason that its occupancy would neither necessitate the abandonment of his large and lucra- tive legal practice, nor seriously interfere with its prosecution. Railroad enterprise found an efficient helper in Mr. Smalley, one of the originators of the Rutland and Burlington railroad company. He was also one of its directors and legal counselors. From 1856 to 1863 he owned all its stock and controlled the corporation. The acknowledged leader of the Vermont bar, possessed of the most remunerative practice in the state, and collector of customs from April, 1853, to January, 1857, his official promotion was simply a matter of time and convenience. The election of James Buchanan to the presidency in 1856 was largely due to his sagacity and zeal, the remarkable powers of organization then displayed elicited keenly appreciative applause, and added to his fame as a practical politician and prescient statesman.
In January, 1857, Mr. Smalley accepted a seat on the bench as a member of the federal judiciary. Thenceforward he wholly ab- stained from participations in party politics. Neither would he have anything to do with political appointments. Even advice on
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the subject was refused to the administration; because, as he wrote in explanation, judicial activity in partisan politics is most indeco- rous and improper, tends to the disrepute of the judiciary, and degrades its weight and authority. His sound and judicious opin- ions on this topic were concordant with the action of the national senate, which unanimously confirmed his nomination without the formality of reference to a committee. Higher testimony of legis- lative confidence it was impossible to give.
As a judge David Allen Smalley is best known to his country. His twenty years of service covered the crisis of its history. With its political convulsions, its readjustments, and its subsequent mar- velous developments he is intimately identified. He held the bal- ance of justice with steady and even hand. Neither clashing opinions, nor factious rage, nor military collisions, affected the cool, clear judgment of the distinguished jurist. The supremacy of con- stitutional law was to him an axiomatic truth, and all things must be subordinated to it. Tyranny on the one hand and lawlessness on the other were equally held in check. This sternly grand impar- tiality clothed his decisions with weightiest authority, and com- manded the gravest and most unquestioning respect. Especially was this the case in relation to the slave trade, as carried on by merchants from the port of New York. While presiding over the United States Circuit Court in the city of New York, in Decem- ber, 1860, in charging the grand jury he said :
"You will probably be called upon to investigate alleged infrac- tions of the laws for the suppression of the slave trade. If courts or jurors fail to do so, they in turn become offenders against the law, faithless, perjured guardians of the great trusts reposed in them, and deserving of the most condign punishment. Within the last three months more than three thousand miserable human beings have been taken by American cruisers from slave vessels sailing from the port of New York. The laws against it are suffi- ciently plain, explicit, and severe to put a speedy end to it if vigor- ously and vigilantly enforced. It must be expected that the degraded, bad men who engage in or aid and abet this horrible trade (for none others do), will resort to any species of chicanery, fraud, and falsehood to escape detection, cover up their infamy and avoid punishment. Those who will in any way be privy to it will resort to any crime, however atrocious, to conceal it. Such is
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human nature, and a knowledge of it should be met by the most unyielding determination, vigilance, and vigor of the officers of the law to ascertain the truth, point out the criminals and bring them to justice."
The propriety, force, and necessity of this noble charge com- manded the cordial praise of the best portion of the metropolitan press. The New York Times of December 27, 1860, quoting the formally enunciated opinion of Judge Roosevelt, United States prosecuting officer for that district, that public sentiment in regard to the slave trade had undergone a change, and that the national executive would not, under any possible circumstances, permit a conviction for this offense in the first degree, to be followed by the punishment prescribed by law, said of it :
"It is a bold, clear, and emphatic pronunciamento against the doctrines of District Attorney Roosevelt. This is the first intima- tion that they (the slaver commercial houses), will have received for many years that a judge of the United States is holding court in the city of New York who cannot be deterred from doing his whole duty. If we understand Judge Smalley rightly, he will also do his utmost, within the limits of his office, toward directing the attention and action of the grand jury against the millionaire and wealthy merchants who have accumulated, and are still trying to increase, their fortunes in this unholy business."
The effect of this charge by a conscientious, pronounced and eminent democratic judge was immediate and decided. On the 14th of January, 1861, when the secessionists had fired upon the steamer that attempted to convey troops and supplies to Fort Sumpter, then under the command of Maj. Anderson, Judge Smalley charged the grand jury in the United States Circuit Court at New York on the law of treason and misprision of treason. Certain merchants and residents of that city had shipped arms and munitions of war, and also supplies, to the seceded states, after their commission of overt treason by firing upon a national vessel. After stating that civil war existed in portions of the Union, and that the confederates were guilty of "high treason by levying war," and that neither states, nor the people of any state, can absolve themselves or others from allegiance to the United States govern- ment, he added :
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"What amounts to adhering and giving aid and comfort to our enemies ? It is somewhat difficult in all cases to define ; but cer- tain it is that furnishing them with arms or munitions of war, ves- sels or other means of transportation, or any material which will aid the traitors in carrying out their traitorous purposes, with a knowledge that they are intended for such purposes, does come within the provisions of the act."
The effect of this charge was electric. It crystallized the chaotic sentiments of unionists into definite and solid opinion, and also evidenced the fact that partizan distinctions were annihilated in presence of danger to the integrity of the Union. Coming from a jurist of his political antecedents, it wrought with all the greater force. The newly elected president, Abraham Lincoln, warmly thanked him for his action, and congratulated the country that in such a fearful crisis it was blessed with so fearless and independent a judge. The press of both political parties generally commended his charge. Dissenters like the New York Illustrated News, which said, " Although we have respectfully stated our dissent from the judge's definition of the law, we cannot withhold our admiration of the patriotism which induced Judge Smalley to assume the respon- sibility of directing public opinion in the crisis at which the affairs of the country have arrived," spoke with bated breath and reverent esteem of his moral courage. The best characteristics of Andrew Jackson belonged to his early admirer and disciple. Conscientious- ness, impartiality, and firmness found ample scope in the new issues and trying ordeals of those perilous times, whether checking seces- sionist disintegration, or defending the rights of the people against the usurpations of officialism, he was equally wise and decided. Constitutional law was the only guide he would consent to acknowl- edge.
At the October term of the United States Circuit Court, held at Rutland, Vt., in 1862, Judge Smalley rendered a decision in the case of Field, who had applied for a writ of habeas corpus on the 27th of August previous. This writ had been granted by the judge, but obedience thereto was refused by United States Marshal Bald- win, who acted under instructions from the war department at Washington. Judge Smalley pointed out the illegality of the pris- oner's detention, and in terse and vigorous language described the order under which Baldwin had refused compliance :
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" It contains (said he), an implied threat against the members of the bar and other officers of the court, and even against the court itself, if either do anything judicially or professionally to liberate a prisoner confined in jail upon what we have already seen was a despotić and illegal order of the war department. A more flagrant disregard of the constitution of the United States can hardly be conceived. I deeply regret that such an order should go abroad, not on my own account, but because such illegal assumptions of power go far to bring our institutions and government into disre- pute, both at home and abroad. I need not say to the people of Vermont, my native state, where my temper and conduct through life are well known, that threats will not influence me, nor that I shall do what I deem my duty unawed. A judge who will not faithfully and fearlessly perform every duty imposed upon him by the constitution and the laws, as much merits disgrace and punish- ment as does the soldier who deserts his colors on the battle-field."
The upshot of the difficulty was the revocation of the objection- able order by the war department. Judge Smalley fined the mar- shal for contempt of court, and would not permit him to act as one of the officers of the court until he had purged himself of such contempt by obeying the rejected order. The marshal paid the fine and was restored to his privileges. Such judges as David Allen Smalley are invaluable to the commonwealth. Liberty can. not sustain injury while they preside in tribunals of justice. This was only one out of many instances in which he sturdily resisted the arrogant approaches of authority toward usurpation and tyr- anny.
Judge Smalley was a tireless worker. He not only attended the terms of the circuit and district courts in his own district, but fre- quently presided over the United States Circuit Courts in New York, Albany and Buffalo, and other places. A paralytic stroke impaired his physical powers in July, 1874. In consequence of this, congress passed an act in February, 1875, authorizing him to retire from labor, and continuing his salary. Partial restoration induced him to decline the proffered privilege. But in February, 1877, he tendered his resignation which was accepted, and was to take effect from the appointment of his successor. On the 10th of March, 1877, Judge Smalley died at his own residence in Burlington. His judicial career was one of remarkable power and brilliancy. Its
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zenith was coincident with the most momentous crisis of our national history.
His love of country was profound, and his hatred of oppression most intense. Uniting a generous and pure heart with an uncom- monly powerful intellect and a fearlessly indomitable will, he was greatly beloved by all who could appreciate his virtues. In his own home he was ever an exceptionally fond husband and a tenderly, affectionate father. The Hon. E. W. Stoughton of the United States Circuit Court in New York City, voiced the feelings of the bench and of the bar in the statement, "In many respects his per- sonal qualities were of a character to endear him to those who became his friends. In his family he was very much beloved. His home was made by the very qualities I have mentioned a very charming and a very happy one." The Hon. E. J. Phelps on the same occasion bore strong testimony to his superlatively excellent judicial qualities. The Hon. L. E. Chittenden also, who had often been his antagonist in litigated cases, said that of Judge Smalley "one thing was especially characteristic-when he gave his word or understanding to another member of the bar, it was always as reliable as his bond." As one who never had any personal difficul- ties, " his influence upon the younger members of the bar is most excellent, and his example one which none of us will ever be too old to follow." Two of the gentlemen whose estimates are thus cited, had known him as legist and jurist for nearly forty years.
David Allen Smalley was married on the 22d of May, 1833, to Laura, daughter of Col. Bradley Barlow, a large landed proprietor, and a gentleman of high standing and extensive influence in Fair- field, Vt. Five children were the issue of this union. Of these Henry Adams Smalley, Bradley Barlow Smalley and Eugene Allen Smalley survive.
LUKE P. POLAND.
L' UKE POTTER POLAND of Waterville, Vt., was born at Westford, Vt., November I, A. D. 1815.
The ancestry of Judge Poland is of the best Anglo-American stock. His grandfather, Joseph Poland, went from Ipswich, Mass., to North Brookfield, Mass., in 1780. Five years later he married Rachael Hathaway. He was a carpenter and joiner by trade, and
Luke P. Poland 6
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means would not allow of continued study in the office. Hence to obtain means, Judge Willard having some business matters that needed constant attention at Greensboro, young Poland opened an office there for the practice of the law, and did quite a business at this place until he was admitted to the bar of Lamoille county at the December term, 1836, the first term after the organization of the county, at which time he was only twenty years of age. He had manifested so much faithfulness and ability in the pursuit of his legal studies and in all business entrusted to his hands, that Judge Willard took him as a partner, which continued three years. He soon gained a large practice, mostly in Lamoille, Orleans and Washington counties. With a family and no property, except what he earned, he became an intense worker. From necessity, as he has often said, he acquired a facility and rapidity in the dispatch of business, in the mastery of principles, cases and books, in the com- prehension and marshalling of facts that rendered him a marvel in the eyes of many of his compeers. The practical knowledge which he had gained in his varied experience greatly aided him, not only in understanding his cases himself, but in presenting them to the easy comprehension of the jury. He was skillful in preparing, suc- cessful in managing and presenting his cases to the jury. He was clear, forcible, and logical in the statement of the law in the higher courts. He could yield gracefully to inevitable defeat, but was too combative to surrender so long as there was a fortress uncarried. His practice became extensive and was continued for twelve years, when he was selected one of the judges of the Supreme Court. Although at the time a free soil democrat, he was elected over a whig competitor by a whig legislature, and afterwards received sev- enteen successive elections by a viva voce vote. In 1860 he was elected Chief Justice, which office he held till he resigned his seat upon the bench in 1865, to accept the appointment to the United States Senate in place of Judge Collamer, deceased. . At the age of thirty-three the discharge of his judicial duties brought him at once into close association with such men as Stephen Royce, Isaac F. Redfield, Milo L. Bennett, Daniel Kellogg and Hiland Hall, men who rank high in the judicial annals of the state. Nor did he suffer by the comparison. He was, emphatically, "the right man in the right place." By intuition, apparently, but really by close
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and vigorous application, he comprehended and mastered the broader principles of the law.
His knowledge of the practical affairs of every day life, and his strong common sense, made him especially happy in applying them to such cases as came before him. He was quick to discern the controlling element in the facts of a case which made a particular principle of law applicable or inapplicable. He reasoned logically and stated his views clearly. His plain, pointed, and forcible charges were so helpful to the jury that they rarely disagreed. His presence was fine, his bearing courtly, his self-command great. He had withal enough of the natural school-master to command and maintain the best of order even in the heat of conflict. Sten- ographic reporters were then unknown. Each presiding judge took full minutes of testimony. A rapid writer, he rarely stopped a wit- ness, but kept all so closely at work that order became a prime necessity. He had no superior as a nisi prius judge.
Hon. James Barrett, for many years one of Judge Poland's asso- ciates at the bar and afterward upon the bench, thus writes con- cerning him :
"In thirty years' conversancy with the bench and bar of Ver- mont, it has not been my fortune to know any other instance in which the presiding judge in his nisi prius circuit has been so uni- formly, and by the spontaneous acquiescence of the bar so emphat- ically 'the end of the law' in all things appertaining to the business of these courts. As judge in the Supreme Court sitting in banc, his adaptedness to the place was equally manifest. His mastery of the principles of the law, his discriminating apprehension of the principles involved in the specific case in hand, his facility in devel- oping by logical processes and practical illustrations the proper applications and results of these principles, are very strikingly evinced in the judicial opinions drawn up by him, contained in the Vermont reports. His memory of cases, in which particular points have been decided, is extraordinary, and this memory is accompa- nied by a very full and accurate apprehension of the very points and grounds, and reasons of the judgment. Some of the cases in which he drew the opinion of the court stand forth as leading cases, and his treatment of the subjects involved ranks with the best specimens of judicial disquisition."
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Among the doctrines discussed and settled by leading cases above referred to are the power of eminent domain, or the right to take private property for public uses, and the proper extent and limita- tion of that power ; the adoption of the common law of England by the United States ; the subject of easements ; the constitution- ality of retroactive statutes ; the acquirement of title by adverse possession ; to what extent promises to pay the debt of another are governed by the statute of frauds. Judge Poland's opinion upon the extent of the constitutional power of the state to authorize its soldiers in camp to vote was regarded as a settlement of that vexed question, and was followed by several states.
The sentiment of the bar was well embodied in the remark of a distinguished jurist of Vermont upon the appointment of Judge Poland to the senate : "The state, so far as her interests depend upon the character of her courts and their administration of the law, has suffered irreparable injury by the transfer of Judge Poland from the chiefship of her judiciary to a seat in congress."
Since his retirement from the bench, Judge Poland has kept up his connection with the judiciary by appearing as counsel in impor- tant cases before state and federal courts. Since the formation of the National Bar Association he has been chairman of its executive committee. Although in his early career he had given himself some- what actively to politics and was an influential member, first of the democratic party, and later of the free soil party, which in 1848 selected him as their candidate for lieutenant-governor, on being elected to the bench he withdrew from active participation in party politics, yet in his principles and acts, so far as they were called out in the exercise of his judicial functions, he was loyal to the principle of free soil and free men, and became identified with the republican party upon its formation, and has ever remained devoted to the principles in support of which that party was called into existence.
In entering again into political life as the successor of Judge Collamer in the Senate of the United States, he displayed the same eminent ability, sound judgment, and fearless advocacy of what he deemed right, which had marked his course and inspired the confidence of his associates in his earlier career. He at once began that career of usefulness which has marked his whole public life, and made him eminent as one of the most indefatigable workers
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among our public men. Being placed upon the judiciary commit- tee, the bankrupt bill which had been passed by the house was intrusted to his care. The judiciary committee were about equally divided upon the question of the expediency of the measure. The skillful management and the large personal influence of Judge Poland secured its passage.
The measure for which Judge Poland is entitled to the greatest credit, as having been its originator, and as having during the ten years he represented the state at Washington, had the entire super- vision of its progress and completion, was that of the revision of the United States laws. Hon. Loren Blodgett in an address deliv- ered before the social science association at Philadelphia in 1875, spoke of this work as follows :
"Early in the first session of the thirty-ninth congress, 1865-6, Hon. Luke P. Poland, the Senator for Vermont and a member of the judiciary committee of that body, introduced a bill for the revision and consolidation of the statutes of the United States, which was passed by the senate, April 9, 1866, by the house of representatives soon after and became a law June 27th, following, substantially without amendment in the form originally given it by Judge Poland. This singularly clear and comprehensive plan was adhered to with almost literal faithfulness to the end- the term of labor required proving much greater than was expected -but in all other respects the foresight of Judge Poland was clearly shown and abundantly vindicated. **
* At this time, as sub- sequently shown, the real work of verification of the draft, as being truly the unrepealed statutes of the United States, general and permanent in their nature, began at the hands of responsible par- ties. The house committee on the revision of the laws, of which Judge Poland was chairman, took the report up with the full deter- mination to perfect and enact it into law.
Having originated the whole work while a member of the senate in 1866, and followed it as the chief director of all subsequent pro- ceedings in both houses of congress for seven years, Judge Poland had an interest in consummating what all regarded as a great work which no other member of either branch could claim.
In all the later work the energy and determination of the distin- guished chairman, Judge Poland, were always conspicuous, and it must in justice be said that the final decision as to what was and
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what was not the law was his own, and not the commissioners or any one of them. His able associates of the committee shared in responsibility, but none took the leading part. And the house to which he made the report at intervals, as enough of its verification should be completed for its action in all cases, sustained his report.
The Senate, still more indisposed to review his work, enacted the revision in a body precisely as it came from the house, and the whole became the law June 23, 1874, without amendment, from the report of the committee on revision."
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