The History of Orange County New York

by Unknown

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.