trench within it the fiend, pecuniary self-interest, he believed it would ultimately change the whole character of the married relation in our country. He spoke for posterity, not for the present generation. If the members of this Convention, and the people, acted unwisely in this matter, they would go down to the grave unpunished; for the evil would'not come in their day. Laws might be changed in an instant, but manners could neither be formed nor subverted suddenly. The present tone of society in this respect was too well fixed to be soon changed. It was the result of centuries of human existence under a wise law. The wives and the husbands of the present day would retain the manners that law had created, long after the law itself was abolished. But if this new rule should be adopted, the student of history in after times would condemn the act. From amid the less pure and incorrupt habits and manners of domestic life as then existing around him, he would look back to the present day, with emotions akin to those which affect our minds when contemplating the first family, in happy Eden, before the tempter came." Debates, New York Convention, 1846, pp. 907–8.

Now, in view of the large increase in divorce suits and litigations of different kinds between man and wife in the state of New York during the last nineteen years, who can deny that some of the most serious predictions of Mr. O'Conor have been but too literally fulfilled ?

It is not our habit to treat any subject without having carefully examined it, but we have found it a serious affair to trace the labors of Mr. O'Conor, extended, as they are, over such a vast space. Although some of his greatest cases are reported only in the newspapers, we have read more or less of his pleadings in not fewer than forty octavo volumes, not to mention at least a score of pamphlets. We need hardly say that we have not been able to give more than a cursory glance at the majority of them; for we could not have examined all in the time we can devote to a whole number of our journal. This must be our apology for any errors or inaccuracies which may occur in our article; we trust we may also urge it as a reasonable excuse, if it be found that we do not perfectly understand our subject. or that our estimate of bim is not such as the facts justify; especially as we do not pretend to be infallible, and are always willing to modify any opinions which we find, on more mature reflection, to be erroneous.

The name of Mr. O'Conor first appears in our law reports as junior counsel, associated with the Hon. Jonas Platt, who was previously, in what may be regarded as its Augustan period, a judge of the Supreme Court ; his opponents being Dudley Selden, junior, and the celebrated Thomas Addis Emmet, senior. It was an important election case which took


place in 1827. His first reported argument is in the case of Divver v. McLaughlan, in the Supreme Court in 1829; one of so much importance that its nature and tendency are commented upon by our leading commentators on American law.t His greatest cases are the Lispinard will case, in 1843, the John Mason will case in 1853, the Parish will case in 1862, the Lemmon slave case in 1856, the case of the slave Jack in 1835, &c. We need hardly mention the famous Forrest divorce case, as one of his greatest, since its character is known to all. For the same reason we will speak of some other cases before it. Among his latest are those of Curtis v. Leavitt, Canjolle v. Ferrie, United States v. Castellero.|| The latter cases involved sums varying from $100,000 to millions. Some had very peculiar points, and engaged the greatest legal talent of the whole country. Of this character is that of Barnard v. Adams, reported in 10 Howard's United States Reports. The argument, printed under the name of Boardman, but written by Mr. O'Conor, although the great Daniel Webster was engaged on the same side, has often been quoted in Europe as well as in this country ;** and a similar remark will apply to one of his arguments in the Parish will case. The peculiar force of the latter seems to have been felt by all. Chief Judge Selden, who presided in the Court of Appeals on the occasion, gave a quotation from Mr. O'Conor's speech, as follows:

*7th Cowen's Reports, p. 153. See 2 Kent's Commentaries, p. 528-9. $15 N. Y. Reports, p. 9. $ 23, N. Y. Reports, pp. 110. 1 2 Black's Reports.

(p. 270. ** As some of our legal readers at a distance may not have seen this, and as it is also interesting to owners and masters of vessels and insurance companies, we subjoin an extract from it.

The first question in this case is of the highest importance in point of principle. The error of the judgment under review seems self-evident. It is indeed a paradox. It amounts to this : that if a navigator, whose ship is inevitably doomed to loss by stranding, should consult his own judgment, and select, for his compulsory voyage to the shore, the route least perilous to himself and his vessel, such preference for the safer course is the incurring of a voluntary sa crifice, which entitles him to compensation.

Or it may be stated in this way : a mariner, whose ship is thus inevitably doomed, cannot avoid becoming entitled to contribution in general, unless he blindly forbears all action whatever, or navigates with an express view and purpose to effect the destruction of the adventure. Neither reason nor authority affords support to this extraordivary doctrine.

General average is founded on the simple principle of natural justice, that where two or more parties are concerned in a common sea risk, and one of thein makes a sacrifice for the common safety, the loss shall be assessed upon, in proportion to the share of each in adventure ; and the greatest sacrifice of the first shall be compensated by the contribution of the others. Taylor v Curtis, 1 Holt's N. P. Cas. 192 note. ' 8 Eng. Com. Law Rep. 69. Its origin is commonly traced to the Rhodian law de jactu, which named only the case of a jettison ; and although the rule is not to be considered as thus limited, yet the case there put is an apt illustration, and no case essentially different from this illustration can fairly be considered within the rule. Goods cast overboard in a storm to lighten the vessel, masts, spars, or rigging cut away to prevent her being driven ashore, or carried away in an effort to avoid, by some unusual

“The counsel for the respondents, James and Daniel Parish, evidently felt the force of this aspect of the case, and we will see how he meets it. In speaking of Mrs. Parish, and the frauds and contrivances by which, as he insists, she obtained the execution of the codicils, he says: "We shall find her watching her husband's person day and night, never permitting any intercourse between him and others, which might reveal the true condition of his mind. We shall find her interpreting, according to her own purposes, his signs and gestures to selected persons, chosen to have this nominal intercourse with him. We shall find her preparing such persons to play the humble part of dupes, by appeals to their selfinterest or their vanity, or by palpably untrue representations and impostures practised upon them. We shall find her desecrating to the purposes of fraud and deception, the sacred name and the sacred observances of religion, the holy cause of charity. We shall find her ensnaring her own highly respectable kinsmen in such a net-work that they are at length constrained, in desperation, to become the instruments of her will, to forget, to prevaricate, to misrepresent. The learned and eminent counsel is drawn in by one artifice, the pious minister by another; the sexton falls by one piece of practice, the bank president and the president of the Bible Society by another, and finally, to fill up, by direct and unmistakable untruth, every remaining chink in the barricade behind which her plunder was to be entrenched, a desperate wanderer from truth and rectitude is obtained as a witness, and induced to out-Herod Herod.'


It appears from

logic, a force of rhetoric and a perfection of art which, I cannot refrain from saying, has in my judgment rarely been surpassed."—New York Reports, vol. XXV., pp. 108-9.

In examining some of the principal cases, we have found several that are interesting in various points of view. One is particularly curious ; it shows, among other things, that clients sometimes know how to appreciate the labors and abilities of their counsel, even when the court decides against them. It the reports before us that two gentlemen named Barron possessed a quicksilver mine in California. А scheme was contrived to deprive them of it by imputations of fraud on their part. Officials of the government became interested in the success of this device. Witnesses were subpoenaed and the record was filled with perjuries; but the claim seemed destitute of plausibility, and the courts of California decided in favor of the Barrons. An appeal was taken. The main reliance of the claimants seemed to be that the record was too voluminous to be read, and that if forgery were boldly and persistently urged it might be believed. The claimants wished to present the strongest inducements to witnesses and others to be as favorable as possible. With this view they formed a joint stock company with a nominal capital of $8,000,000, their claim to the quicksilver mine constituting such capital. Thus, 80,000 shares of the stock were put afloat on the market, which would be worth nothing if the Barrons succeeded, but worth par if they were defeated. Any one could buy shares for two or three dollars apiece; many enjoying favorable positions could buy a lot of them for sixpence apiece, or if not afraid to accept, could get them for nothing.

This record was placed in the hands of Mr. O'Conor by the Barrons, with a retainer to argue the appeal. To him the whole difficulty seemed to be to condense and arrange the contents of the record ; so unwieldly was the mass of foreign laws, foreign languages, and foreign practices. The person who got up the record was dead; his successors may not have had time, if they had the inclination, to scrutinize it. At all events, they failed to do 80; they took his word that it contained ample proof of guilt on the part of the Barrons. By incessant toil, patiently pursued for a long time, O'Conor reduced the chaos to order, and rendered it so plain that no intelligent person could fail to be convinced of the utterly frivolous character of the evidence. Even that of the subpænaed witnesses tended to show that the title of the Barrons

was good and genuine. A single paper having an unfavorable bearing was introduced at a late period of the investigation, but on cross-examination it was admitted to be a fabrication. No use for the Barrons, however. The claimants had laid their plans well; and they gained their case. By this curious decision the Barrons were deprived, not to say robbed, of millions of dollars. In the midst of their mortification and chagrin, being still wealthy, they requested their counsel to present his claim for services. It seems that what he claimed would be considered a liberal fee in any part of the world, even for the vast amount of labor he had performed. Gold was then at a premium of fifty-four per cent.; but the Barrons sent a draft on their bankers, payable in gold, for several thousand dollars more than the amount asked.

As mentioned already, we have always been opposed to Mr. O'Conor's views on the subject of slavery, but we have sought to do him the justice of bearing in mind that he formed them in his professional capacity. A very wide distinction must be made between one who devotes himself to the propagation or maintenance of slavery as a politician, and one who merely argues a slave case as an advocate. If it be urged that because a lawyer becomes the champion of slaveholders it must be held that he has sympathy with slavery, must it not also be held, on the same ground, that he who is in the habit of defending murderers must have a sympathy with murder? Although it would have afforded us much pleasure to see Mr. O'Conor devote his efforts in favor of slavery to a different cause, we do not feel the less bound to give a fair estimate of those efforts, especially when we bear in mind that they have always been influenced by patriotic motives. Mr. O'Conor thought that opposition to slavery would sooner or later lead to bloodshed and rebellion; and that whatever good might result from abolition, it would not compensate for the evil of war and the dissolution of the Union. If he was wrong in this, so were our greatest statesmen and patriots, including Webster and Clay, and even the illustrious Washington himself.

At all events, it is not as a quasi-philanthropist or politician that we are considering Mr. O'Conor, but as an advocate. As such his arguments against the poor negro

have been but too powerful ; they surpass all others that we have read in any language, ancient or modern. In short, wherever arguments were to be found, in sacred or profane history, in

« VorigeDoorgaan »