A. H. L. Secor
Mr. Bacon is never more interested than when he is confronted with some grave question of constitutional construction. His attack upon the constitutionality of the drainage law, which was declared invalid by the Court of Appeals upon the arguments advanced by him, and in which he was opposed by the eminent advocate John G. Milburn, will be long remembered.
All lawyers are true to their clients, but Mr. Bacon's inflexibility in the assertion or defense of his client's rights is uncompromising to the last degree. It has even been said that, in his zeal and ardor, he is willing to trample upon all the ties of private friendship and all the claims of personal courtesy. But no client was ever heard to complain of this and, after all, the fact remains that no lawyer can serve his clients with absolute fidelity without, at times, wounding his neighbors and his friends. An honest lawyer can know no one but his client and him crucified. His standard of morality and manners, of duty and decorum is expressed in the sentiment, "Stop pursuing my client and I have no further quarrel with you." Mr. Bacon typifies this spirit and embodies this principle in his professional life more strikingly than any lawyer who has ever practiced at the bar of Orange County.
On the other hand Mr. Bacon's social gifts and graces are in the highest degree winning and attractive. One would never suspect, in the velvet palm that greets him at his threshold, the iron hand that crushed him but the day before in court. One would never recognize in the beaming, graceful host the hard-headed lawyer who, with stern, unflinching purpose, will destroy him to-morrow. United in marriage to the brilliant and accomplished daughter of one of America's purest and noblest statesmen, Samuel J. Randall, his home is a center of charming, courtly and gracious hospitality dispensed with lavish, refined and unaffected generosity. Mr. Bacon is the only lawyer in Orange County who has ever both recognized and fulfilled his social duty to his brethren of the bar by throwing open his home to them in receptions intended to bring the judges and the lawyers together in social relations. In olden days and in other counties this custom once prevailed. Possibly it is because Orange County labors under the misfortune of being a half-shire county—a calamity to any bar for the reason, besides many others, that it effectually destroys the possibility of having a suitable court house—that a spirit of comradeship among its lawyers has never grown up. It is noticeable that in counties where the legal interests converge in one central county seat the brotherly spirit is more active. But, however that may be, Mr. Bacon is entitled to the grateful acknowledgment of his efforts to suspend the asperities of professional conflict in the solvent of social converse. In this, as in every other respect, his leadership of the bar is supreme.
Walter C. Anthony preceded Mr. Bacon a few months in their student life with Judge Gedney at Goshen. No one has painted so perfect and beautiful a picture as he of those halcyon days in that country law office. In his memorial tribute he said:
"But of all the delightful hours spent with Judge Gedney I recall, with most pleasure, our afternoon talks at the office. As the day was wearing late and he began to make preparations to leave, he usually seemed to want to draw me into conversation. Frequently it took the form of an examination as to those branches of the law which I was then reading upon. Occasionally he would draw me into the discussion of some legal question, in which he would maintain an opinion opposed to that which I expressed, and in which after combating me, with all his ingenuity and acuteness and frequently discomfiting me, he would in the end explain the whole question and point out the errors of either side of the argument. At times some event of the day's work would be used as a foundation for an explanation of the legal questions involved. In whatever way the conversation was begun his evident purpose was that it should be profitable to me in connection with the studies I was pursuing; and when that end had been accomplished our conversation would wander on 'at its own sweet will,' touching on many and varied themes which all developed new beauties and suggestiveness beneath the light of his varied learning and fertile fancy. Is it to be wondered at that I recall them with a chastened delight? Judge Gedney was then in the very prime of his remarkable powers. His mind was a storehouse of varied and interesting knowledge, and his conversational and descriptive skill were not only very great, but quite unique.
"I shall always regard it as one of the most fortunate circumstances of my life that 1 was brought into such intimate association with David F. Gedney. And as my life passes on into the 'sere and yellow leaf and I sit among the lengthening shadows of its afternoon looking back upon the friends and friendships of my youth, I shall very, very often recall Judge Gedney—the slender, erect figure; the strongly marked face; the scant but expressive gesture; the wonderfully melodious and well modulated voice; the words so deftly chosen from a vocabulary surpassingly rich and full, that they always reminded me of the sentence in holy writ: 'words fitly spoken are like apples of gold in pictures of silver;' and above all I shall recall his kind and generous deeds, the fit exponents of a loving, loyal heart; and, thus recalling him, I shall often in the future exclaim—as I have already in the past—in no empty phrase and with no exaggeration of speech:
"'Oh for the touch of a vanished handAnd the sound of a voice that is still!'"
This extract is made not solely to embellish the portrait of Judge Gedney, the man—though I indeed left it unfinished intending thus to invoke Mr. Anthony's aid in completing it—but also to illustrate Mr. Anthony's own cast of mind, character and literary style. Mr. Anthony is by nature and inclination, a scholar and a recluse. If he were rich he would shut up his office and browse in his library; but not selfishly, for no one has been more generous than he in responding to demands for public and literary addresses. I heard him once, before the Chautauqua Assembly, give a purely extemporaneous lecture upon wit and humor which for range of reading, wealth of information, critical analysis and brilliant characterization has never been surpassed by our most famous lecturers; and yet it was delivered with a modesty, sweetness and simplicity which seemed to deprecate the suggestion that it was anything out of the ordinary.
His memory of Judge Gedney unconsciously reveals how deep was the impression made in youth upon a mind singularly susceptible to the charms and graces of literature and upon a nature no less susceptible to the beauties and joys of friendship. As in the case of all such natures, the books must be choice and the friends fit but few. Not, indeed, that Mr. Anthony is deficient in the elements of personal popularity. His election twice to the office of district attorney of the county, the duties of which he most ably discharged, attests his popular strength. But it is undeniable that his predilection for the society of the great and wise of every age, to be found in his well-filled library, has tended more and more to withdraw him from the society of the shallow, the superficial, the frivolous. He stands to-day a lonely but alluring figure, on whose heights those who choose to follow may find in him the charming companion, the accomplished scholar, the earnest inquirer, the inspiring instructor.
Let no captious reader take cynical exception to the note of honest praise sounded in these memoirs. Let it be remembered that, out of hundreds of lawyers, only a few of those entitled to admiration and praise have been selected for extended mention. While personal memoirs should be accurate they need not be exhaustive. In those rare instances in which conspicuous talent has yielded to temptation and, in weakness or dishonor, forfeited public respect, it has seemed to be the truest kindness to pass over it in silence. Indeed, as one surveys the procession down half a century of those who have become notable in the law he is profoundly impressed that not by infirm, invertebrate character have they gained their prominence but only by firm resolution, high endeavor, moral purpose and intellectual power. One is led to wonder not that there should be so few entitled to praise, but that there should be so many. Impartial criticism will demand of the contemporary chronicler not that his praise be stinted, but only that it be discriminating.
Indeed only the most un-stinted, unqualified praise would be either just or appropriate in summoning from that stately procession of great and honored lawyers the lofty, imposing figure of Judge John J. Beattie, who for eighteen years—1889 to 1907—presided over the County Court of Orange County, having been elected for three successive terms. His dignity of presence, weight of character and wealth of learning amply sustained the traditions of a bench once occupied by Gedney and Fullerton. Many of Judge Beattie's decisions have been in cases of far-reaching public importance—notably the case involving the construction of the eight-hour law in which Judge Beattie decided that the provision prohibiting a contractor from allowing his men to work over eight hours a day on a public improvement was unconstitutional and void. The Appellate Division reversed but the Court of Appeals affirmed Judge Beattie in an opinion sustaining every position which Judge Beattie had taken in his opinion.
Judge Beattie is grounded in the principles of the law. In all that he does he is thorough, going to the very bottom of the case whether as to the law or the facts. This quality was strikingly brought out in the case tried by him for eight days before Judge Maddox involving the liability of a railroad company for the damage resulting from the explosion of a locomotive boiler. There was absolutely nothing about a boiler that Judge Beattie did not understand. One would have supposed that he had been brought up in boiler works and had then run an engine on the road. He succeeded in dividing the jury and Judge Maddox said after the trial that he had never seen a finer display of sheer intellectuality than Judge Beattie's management of the defense.
He is an omnivorous reader and his marvelous memory retains all that he ever read. His conversation is an intellectual feast, for he pours out a never-failing stream of literary anecdote, historic incident and choice passages from the classics of every age, all ready to gush forth from his well-stored memory as the conversation glances from one subject to another.
Judge Beattie carries into his retirement from the County Court the gratitude and respect of the bar and of the public for the fine example of judicial dignity and learning which he has given for eighteen years—an example which may well be followed not only by all who succeed him in the County Court, but by all who administer in the same court houses and from the same bench the wider jurisdiction of the Supreme Court.
Having considered several leaders of the bar who came into practice in the late sixties, but who, like their predecessors, Winfield, Gedney and Fullerton, were never invited to the bench of the Supreme Court, we come now naturally to that group of their early associates who have achieved judicial honors, those honors which have always held a glittering fascination for the bar whether in the wearing or the recounting of them. There never have been enough judgeships to go around and the long tenure now established wholly excludes rotation among the leaders of the bar in respect to judicial position. Hence the prospect that any member of the bar, however able, will ever attain judicial honors is so remote and dependent upon so many unforeseen conditions that when they do descend and repose upon the modest brow of some highly favored but always unenvied brother, the circumstances combining to produce such a fortuitous selection possess all the charm of romance and all the fascination of a fairy tale. While it is true that many unforeseen conditions must always unite in determining the destination of this coveted prize, there still seems to be one inexorable condition to which all Orange County aspirants must conform. They must not reside in the interior of the county. They must practice in the old, historic city of Newburgh—a city which has always taken a deep, honorable, patriotic pride in its Revolutionary associations and in the land they represent, but which has no more pride in, no more sense of connection with, Orange County as a whole than West Point has. Its bar has always been distinguished for great ability and high character.
The Supreme Court of the State of New York, the wide jurisdiction of which extends from Long Island to the St. Lawrence and the Lakes, was never more fortunate than in the acquisition to its bench from the Newburgh bar of the two Browns, father and son—John W. Brown and Charles F. Brown—the elder having ascended the bench in 1850 and the younger in 1883.
It is Charles F. Brown who belongs to the period we are now considering. Graduated from Yale College in 1866, admitted to practice in 1868, elected district attorney in 1874 and county judge in 1877, he resigned in 1882 the position of county judge to assume the duties of supreme court judge.
Mr. Winfield had always ardently desired a position upon the bench of the Supreme Court. It was one of the bitterest disappointments of his life that he so narrowly missed this object of his ambition in 1875, when Judge Dykman was elected. In that year the widespread revolt among the bar and public against the re-election of that most unpopular official, Judge Tappen, who had received the regular democratic nomination, made it evident that any independent democratic candidate who should receive the endorsement of the republican convention would be elected. Mr. Winfield's hopes of receiving this endorsement rose high and were on the point of being realized when an unexpected influence intervened to dash them. General Benjamin F. Tracy, who had a longstanding personal feud with William Fullerton, the brother of Stephen W. Fullerton, suddenly came to the conclusion that he did not want upon the bench an intimate friend of the Fullertons. He therefore threw his influence in favor of Jackson O. Dykman, then a prominent democratic lawyer of Westchester County, who thus received the nomination. His election by a large democratic and republican vote confirmed the prediction that such a coalition would easily accomplish the defeat of Judge Tappen. Orange County, notwithstanding that it shared Mr. Winfield's disappointment, followed his generous lead in supporting Judge Dykman and gave him a majority of 10,000. No one labored for Mr. Winfield's nomination at this time more earnestly than Charles F. Brown himself.
In 1882 Mr. Winfield's hopes of obtaining a nomination revived, but Charles F. Brown, who cherished the natural and honorable ambition to emulate his father's noble example and distinguished career as a jurist, felt that he ought not to stand aside again. He of course secured the delegate from his own assembly district without opposition. Overcoming the opposition offered by Mr. Winfield's friends in the second assembly district, he secured its delegate also. By thus presenting a united front Orange County was able to successfully assert its claims in the judicial convention and to secure for Judge Brown the nomination that was followed by his election.
No one was more gratified by Judge Brown's election than Mr. Winfield himself, especially as it involved the defeat of General Tracy, the very man who, seven years before, had snatched from him the same prize when almost within his grasp. When General Tracy, of Kings County, was nominated by the republican convention against Judge Brown, of Orange County, he confidently expected to defeat Judge Brown, whose greatness was then unknown to the district at large, through the promised support of many large Brooklyn interests. But all his calculations were confounded by a wholly unexpected event. This was the cataclysm in which Grover Cleveland, with whom Judge Brown was running, carried the State by the enormous, unprecedented majority of 200,000.
Thus was Orange County enabled to contribute to the bench of the Supreme Court a jurist who, in the fourteen years of his incumbency, made a profound, a lasting impression upon the jurisprudence not only of his State but of his country.
After serving for six years with great acceptance in the trial and special terms, he was, upon the formation of the second division of the Court of Appeals, promoted to its bench. His services during the four years' existence of that court were of the highest value, his luminous opinions being still quoted and followed in every State in the Union. Some of the litigations which came before him were in the highest degree difficult and complicated; one of the most important being the case involving the construction of the Tilden will, in which the opinion of Judge Brown, declaring the trusts invalid, was adopted by the court. His opinions rendered in this court constitute an imperishable monument to his learning and ability.
Judge Brown's manner upon the bench, at trial and special term, was a happy mingling of simplicity and dignity. His most noticeable personal trait was his entire lack of self-consciousness. He never thought about himself or about the impression which he might be making upon the bar or the public. His mind was wholly upon the case and upon the principles involved in it. He was considerate of the feelings of counsel and rarely rebuked them for imperfect presentation of their views. When they wandered from the point he thought about the case and when they came back to the case he followed them again. It is simply the truth of history to say that the members of the bar, not only of Orange County but of the entire State, do not expect to see in this generation a nearer approach to the ideal judge than they were permitted to behold during the fourteen years of Judge Brown's incumbency.
There was one marked characteristic of Judge Brown while upon the bench which deserves more than a passing mention. After a case was submitted to him and while it was still under consideration he was never afraid to enter upon a discussion of the principles involved in it, with either of the counsel he might happen to meet, if he felt that such a discussion might prove profitable. In this respect he differed from some of his colleagues who were perfectly aghast at the thought of counsel conversing with them upon any phase of a pending case in the absence of opposing counsel. This of course was due to their high sense of the importance of preserving not only real impartiality but the strictest appearance of impartiality. But there was something in Judge Brown's character which did not need the protection of such a rule; something in the very atmosphere which he threw out; something in the impression which he gave of being simply a thinking, working, impersonal, intellectual machine, which left no room for misunderstanding on the part of any lawyer thus admitted to a share in his deliberations and which left his judicial independence and impartiality absolutely untouched. This capacity at once constitutes the highest test and the consummate type of the strictly judicial temperament. To this test Judge Brown easily responded and of this type he was the perfect embodiment.
O. P. Howell
No one can be accused of sycophancy in awarding to a judge long since retired from the bench his merited meed of praise and gratitude for distinguished public services. Nor even in the case of judges still occupying the bench can such a charge fairly lie when the faithful historian surveying and reviewing, from the serene heights of retirement and rejection, the stirring scenes in which once he bore an active part, is now as indifferent to, as independent of, the opinions of judges as they are of his. It would indeed be far more entertaining if there could be contributed to this volume the opinions which the judges hold of each other, thrown into literary form instead of merely being promulgated from the bench or disseminated by the press. When, upon the occasion of Queen Victoria's jubilee, the judges met in London to prepare an address to Her Majesty, the proposed draught submitted to them began with the words, "Conscious as we are of our shortcomings," whereupon Lord Bowen gravely suggested, as an amendment, "Conscious as we are ofeach other'sshortcomings." Human nature is very much the same here and in England; very much the same, in its manifestations, among judges and among lawyers.
Judge William D. Dickey ascended the bench in 1896, one year before Judge Brown's retirement from it. The second judicial district, of which Orange County then formed a part, was for many years democratic and it was not unusual for the republican conventions to endorse the democratic nominations. But in 1895 there seemed to be such a fair prospect for success that the republicans put forward a full ticket of judicial nominees, including Judge Dickey, who was elected, though one of his associates upon the ticket, Hugo Hirsch, of Brooklyn, was defeated by Judge Martin J. Keogh, whose court ought to be attended every year by visiting delegations of judges from all parts of the State as a training school and object lesson, illustrating how a busy judge may at all times, in all circumstances and under all provocations still be the model, faultless, consummate gentleman.
Although Judge Dickey removed from Newburgh to Brooklyn soon after his election and is counted as a judge of the second judicial district, while Orange County is now a part of the ninth judicial district, still Orange County is where he was born; where his professional life was passed; where he rose to prominence and power, and where he lived when he was elevated to the bench. He exhibited even in boyhood the qualities which have marked his public career, his patriotic ardor inspiring him to enlist in the Union Army when only seventeen years of age; his promotion being so rapid that before he was twenty years old he had been brevetted colonel in recognition of conspicuous gallantry.
Admitted to practice soon after the close of the Civil War he threw himself with characteristic energy not merely into the legal contests which arose in his city, but into all the public and political controversies of the day. Ardent in his affections and implacable in his hatreds, loyal to his friends and relentless to his enemies, he soon acquired an extensive influence and attracted to himself a devoted following, both personal and political.
The public spirit and civic pride shown by Judge Dickey in promoting every enterprise tending to beautify or benefit his native city was generally recognized and his election to the constitutional convention of 1893 was a distinct turning point in his career. His ability, vigilance, authority, force of character and readiness in debate, soon gave him a dominant influence in the deliberations of that highly intellectual body—an influence aided by his commanding presence and resonant voice, advantages not without value in that most difficult of all auditoriums, the assembly chamber in the Capitol at Albany. Among the many far-reaching reforms which he proposed or advocated in the convention he undoubtedly looks back with special satisfaction upon the provision incorporated, with his active support, in the new constitution prohibiting any legislative limitation upon the amount of recovery for death occasioned by negligence, since he has had abundant occasion in his experience upon the bench to verify his convictions of the justice, necessity and public policy of this amendment.
Judge Dickey displays upon the bench the same sterling qualities which marked his active professional career. Among them none is more pronounced than his remembrance of and kindness to old and valued friends. The exercise by a judge of the patronage necessarily pertaining to his office has always been a trying question for him. But since one lawyer has no natural, superior claim over any other lawyer upon the fruits of patronage, there seems to be no reason why a judge should not be permitted to gratify his feelings of friendship and esteem in the appointment of referees whom he knows to be not only estimable but entirely capable. No one questioned this sentiment or principle of conduct when Judge Brown appointed his old friend and partner, Mr. Cassedy referee to sell the West Shore railroad, or when he appointed his old friend, William Harvey Clark, of Minisink, receiver of the Port Jervis and Monticello railroad; Mr. Clark, by the way, proving to be so capable a receiver that he not only paid its debts but surprised the stockholders by handing over to them a large amount of money.
But in the distribution of patronage Judge Dickey has not only been loyal to the claims of private friendship; he has nobly used it in the recognition of the debt which the public owes to distinguished public services and sacrifices. I know one able lawyer whose physical infirmities disqualify him from active practice at the bar, but whose eye is still as clear, whose judgment as alert as when, from the heights of Gettysburg, he directed the Federal forces on the first day of the battle and saved the fortunes of the day till they could be turned and redeemed upon the morrow. In appointing this old hero to important service in various public condemnation proceedings, in which his sound judgment and wide experience have been utilized to the public benefit. Judge Dickey has entitled himself to the gratitude of all who believe that conspicuous worth and patriotic service should not be forgotten and neglected by judges any more than by governors or presidents. And personal gratitude is no less due to Judge Dickey from all those whose appointment by him to positions of trust and responsibility has enabled them to justify his own unerring judgment as to their fitness and capacity.
It was in the autumn of 1902 that Judge Dickey was called upon to pass through the first deep sorrow of his life in the loss of his only son, Frank R. Dickey, cut off in his young manhood at the very beginning of his promising career at the bar. Born and educated in Newburgh he had followed his father to Brooklyn, where he established himself in practice and where he soon won a large and growing clientage. His solid abilities; his pure, lofty character; his open, sincere nature; his refined, engaging manners; his gentle, amiable disposition united to create a personality of singular charm and interest. Troops of new friends, attracted to him by the graces of a sweet and beautiful character, joined with those who had always known and loved him in heartfelt sorrow over the untimely grave of Frank R. Dickey.
Judge Dickey's wide experience in affairs, with his knowledge of human nature, its secret springs and devious ways, enables him to arrive at decisions always prompt and usually just. His influence upon the bench has always been powerfully exerted in support of the domestic virtues and social purity. Gambling, which is fast becoming one of the most threatening of our national dangers, as it is already one of the most degrading and corrupting of our social vices, whether practiced by men in policy shops, or by women at bridge parties, finds in him, whenever it comes within his judicial purview, neither countenance nor toleration.
There is one trait of Judge Dickey upon the bench which calls for special mention. When, in an action which has been tried and decided by him, without a jury, the attorneys come before him for settlement of the case upon appeal, he does not seek to emasculate the appeal, as some judges in their weakness and vanity do, by striking out the exceptions designed to bring up sharply for review the points of difference between him and the defeated counsel. He always gives the unsuccessful and dissatisfied litigant a fair opportunity to review every issuable ruling and to get a reversal if he can. He is not hyper-sensitive upon the subject of being sustained by the appellate courts. Indeed, his mental attitude toward them is doubtless reflected in the remark once made by the famous judge, Lord Young, when he was told that one of his decisions had been affirmed upon appeal by the House of Lords, "Well, I may have been right, notwithstanding," said Lord Young.
As Judge Dickey has never been assigned to the Appellate Division and much prefers the close contact with the bar and with vital human interests which is enjoyed by judges constantly engaged in trial term and special term, he has never felt called upon to accompany his decisions with opinions of any length. When he does write, his opinions are clear, terse and sententious. Indeed there is very little satisfaction for a judge at special term in writing elaborate opinions, only to find them arrested and archived in that mere vestibule of fame, that hall of unmerited but predestined and pathetic oblivion known as the Miscellaneous Reports.
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 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, strikingly verified the saying of Carlyle that, after all, books are the best university. 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, ornate and opulent English style which constituted an admirable discipline and equipment for the very field of juristic service in which he was later destined to engage.
Elected in 1890 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 comparisons are often more dangerous than odious his career almost inevitably 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 generations 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 long perpetuate 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 extraordinary quickness of mental action, his scintillations of repartee in social life and his swift rejoinder at the bar, that he would show some impatience with the slowness, dullness and density due to imperfect preparation or inherent ineptitude, which every judge is called upon, more or less frequently, to endure; that he would find it difficult to restrain the bubbling 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, he 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, uncommunicative exterior of a sphinx. Under the responsibility of his great office he unconsciously developed and en-grafted 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 affection the character of Judge Smith and now holds in deepest veneration his sacred memory, it is not amiss to incorporate in this record that expression of its feelings by Judge Hirschberg himself, which sheds a reflected 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 necessarily 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 portraiture of the judges who were drawn into the public service from the Orange County bar, within the period embraced in these personal recollections, it is convenient and fitting at this time to briefly outline the conditions 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 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-increasing 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 Saturday special term. This arbitrary, inexorable limitation of time, which was equivalent to shutting out many cases that had been carefully prepared, 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 unduly 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 asked, "What are you waiting for?" They could not share the glee manifested by the judge when he succeeded in having three juries "out" at one time, and boasted 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 regard to the traditions and the usages of the bar. Winfield was especially the distinct representative in this county of the old Websterian school of advocates. 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 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 appearance 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 district; 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 considering 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 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 constantly interrupted the attorneys to assure them that they could not possibly 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 arguments discharged at the court as from a catapult by attorneys gasping for breath in the mad race against time.
Wm. O. Piorshalf
Some amelioration of the intolerable conditions under which circuit terms were held in Newburgh and Goshen was effected through the election 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 M. Cullen, whose high sense of absolute fairness to all suitors alike led him to devote as much time and thought to a case involving a trifling amount as to one involving large interests; 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 inadequate time.
The comfort and convenience of the Orange County bar and the interests 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 consent 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 opposed by some Orange County lawyers but which is now generally recognized as, in the highest degree, conducive to the convenience and interests 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 convenience 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 entertained 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 November 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 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 and Judge Barnard unexpectedly took his place. Admonished by previous experience 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 audience 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, enthralled by the spell of his genius.
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 trampled upon by judicial contempt not merely for all the traditions of the bar but 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 disposition that led to his constant signing ofex parteorders without looking at them, trusting to the honor of the bar not to impose upon him and, also, to a motion by the other side to vacate any improvident order. The 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 afterwards to serious consequences. Of this I once witnessed a striking illustration. An attorney desired an order to examine a party before trial in a case in which the examination of his adversary was absolutely essential 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 designating a referee of their own choice, to compute the amount due in foreclosure cases, with the report of the referee signed by him in anticipation of his appointment, together with the judgment of foreclosure; whereupon he signed at the same time both the order of reference and the judgment of foreclosure, promptly mailing them back, although it was physically 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 discountenance, 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 Newburgh because, though in another judicial district, Orange County is an 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 Saturday 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 recognized 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 entering 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 somewhat 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 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 hesitating 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 public respect which was paid to it in the early days of the republic, or exercise now that ascendancy 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 inevitably 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 familiar to the fathers and founders of the nation, express their preference and give effect to their choice.
But it is significant that, even in the North, whenever the people at large resolve to destroy long-standing abuses or odious machines, as, at stated intervals, they always proceed to do, they turn instinctively, as of old, to the plain, simple, honest, busy, practicing lawyer. Among the lawyers elected to the high office of governor of our State the three governors whose homely, direct, straightforward methods have most captivated the imagination and impressed the conscience of the passing generation are Tilden, Cleveland and Hughes, who simply brought to their duties the habits, the instincts, the training and the ideals of the old-fashioned country lawyer, whose first aim is always to protect the interests committed to his charge without any thought as to the effect of his course upon his own interests, popularity or future. This training, this tradition, this character of the true lawyer still happily survives all changes in political methods or party management and still constitutes the highest security the people have for the faithful administration of their laws, wholly un-swerved by selfish, ulterior or sinister purposes.
At the time, now forty years ago, to which my memory of the Orange County bar runs back, these honorable traditions were wholly maintained by a bar, the members of which still enjoyed a high place in the public esteem and exercised a profound influence upon public opinion, based upon the dignity and importance of their profession as well as upon their personal talents and character. The relations between the lawyers and the farmers were particularly close, confidential and agreeable. The soil was still largely occupied by men of character, education and intelligence who freely sought the counsel and society of their friends among the lawyers at whose offices and homes they were as cordially welcomed on a social or political call as upon a professional visit. The reason that the sons and successors of the lawyers of that day have, to some extent, lost touch with the interests of the soil is that the farmers of that day were not able to persuade their sons to become their successors. The saddest change that has overtaken Orange County in the last forty years is not in the character of its professional men, but in the character of its farming population.
Identified with the period included in the personal recollections here but partially preserved are several groups of fathers and sons who may for convenience be considered together; especially as a sufficiently consecutive view of the period has now been presented to admit, henceforth, of greater latitude in respect to time and order.
Joseph W. Gott, senior, died in 1869 after twenty-seven years continuous practice in Goshen, where he established the enviable reputation throughout the county of being one of the most honorable and high-minded men, as well as one of the most able and successful lawyers, known to his generation. His premature and deeply regretted death occurred before his only son could be admitted to practice.
Joseph W. Gott, Jr., was admitted in 1875 and since then, like his father, has practiced continuously in Goshen. No higher praise can be bestowed upon him than to say, that while he has, by his own vigorous intellect and independent character, won for himself prominence at the bar, he has never lost sight of the high ideals which animated his father.
The general confidence in his supreme honor and integrity which he has always enjoyed corresponds most touchingly to the confidence and respect always inspired by his honored father. With him is now associated in practice his own son, Percy Van Duzer Gott. These two are mentioned first in the group of fathers and sons because they are the only lawyers in Orange County, thus associated, who constitute and represent four generations of Orange County lawyers. For in them flows not only the blood of the elder Gott, but the blood of the Van Duzers and the Gedneys.
Isaac R. Van Duzer, who married in 1826 the older sister of Judge Gedney—their daughter, Charlotte, being married to Joseph W. Gott in 1847—was, undoubtedly, the most brilliant advocate, with the single exception of Ogden Hoffman, who ever addressed an Orange County jury. All the accounts of contemporaries and all the traditions of the bar unite in this verdict. Often have I heard Judge Wilkin, who as a boy heard him in Goshen, expatiate upon his transcendent powers. He died prematurely in his fortieth year, but the opinion entertained by his generation was that, had he lived, his name would have gone down to history with the foremost orators of his age. Of their distinguished ancestry at the bar of Orange County the Gotts may well be proud; for the junior member in the present firm is now the fourth in a line of lawyers whose practice and residence at Goshen have extended over a period of eighty-five years—from 1823 to the present time.
John W. Brown was admitted to practice in 1822, just one year before Mr. Van Duzer, to whom he was related, Judge Brown having married a Reeve, which was the family name of Mr. Van Duzer's mother. It is remarkable that if the practice of Judge Brown and of his own son, Charles F. Brown, had not been interrupted by extended terms of judicial service in the life of each—sixteen years in the life of the elder Brown and fourteen years in the life of the younger—the continuous practice of the two Browns would now cover a period of eighty-six years. As it is, their contributions in two generations to the jurisprudence of the State, at the bar and on the bench, cover a longer period than that embraced in the careers of any father and son associated with the legal annals of Orange County. I say still associated because, although Judge Charles F. Brown is now one of the two or three acknowledged leaders of the bar of the State, with his office in New York City, where his practice is largely in the Appellate Courts, he still retains his residence in Orange County and a nominal connection with the firm established in Newburgh by his former partner, Mr. Cassedy.
Stph. Fullerton