Bench and Bar: William Kent, Henry M. Western and John S. Bosworth
William Kent (1802-1861)
William Kent was a mild-mannered law professor and sagacious attorney who served as Circuit Judge for the First Circuit from 1841 until 1844. Despite a successful career and several years in a high judicial office, he is probably best remembered for being the son of James Kent (1763-1847), a revered founding father of American law.
James Kent was considered to be the leading authority on American jurisprudence for much of his lifetime. The elder Kent had been appointed first professor of law at Columbia College in 1793. He had served as Recorder of New York City (1797-1798), Justice of the New York Supreme Court (1798-1814) and, most notably, Chancellor of New York State (1814-1823). Under New York’s first Constitution, Chancellor was the highest judicial office in the state and, even after his retirement, he was often referred to as “Chancellor Kent.” Kent’s four volume, Commentaries on American Law (1826) which was regarded as the authoritative work on American jurisprudence for several decades.
The elder Kent was forced out of office in 1823, by a provision which mandated retirement at age 60. He spent a productive retirement as an elder statesman, law professor, paid advisor and mediator. James Kent enjoyed a long marriage to Elizabeth Kent (1768-1851) and was very close to his children. During William Kent’s time as circuit judge, the ex-chancellor lived next door to him and served as his constant advisor. The elder Kent had presided over eight murder convictions during his time on the bench and had created a significant body of New York precedents in both civil and criminal practice.
William Kent began his career practicing law in partnership with Judge Ogden Edwards’ nephew (and former law partner) William Samuel Johnson (1795-1883). In March, 1838 he co-founded the New York University school of law, where he was Professor of “the Law of Persons and Personal Property including Commercial Law.” During this period, he was active with the New York Law Institute and sometimes served as referee for its moot courts (held in the City Hall courtrooms).
Kent was appointed circuit judge in 1841 by Governor William Seward (1801-1872). Kent was a Whig but disliked politics and politicians as a rule. Governor Seward was a longtime social friend. When Kent was nominated, the Sun wrote:
He is no political brawler, and cannot be accused of having received his appointment as the reward of party services. His political career has been moderate and forbearing, and we may say with entire confidence that he will carry no party prejudices with him to warp his judgment on the bench. To find such a man for a judge in these times must be regarded as rare good fortune.
This presented a contrast with his predecessor, Ogden Edwards, who was also the son of a famous political dynasty, but who began his career in an era of brawling and partisan pistol duels.
William Kent married Helen Riggs (1802-1870) in 1821, and they had one son, James Kent (1830-1886). The family was close-knit. William and Helen lived next door to William’s parents much of the year and the extended family often dined together. Later in life, William left his professorship at Harvard to be with his ailing father. William was a voracious novel reader and absent-minded procrastinator who frequently misplaced his papers.
As Circuit Judge, Kent was responsible for trying all capital offenses in the New York’s first circuit (New York County, Richmond County, Kings County, Queens County and Suffolk County). During his tenure, Kent oversaw at least twelve homicide cases, resulting in one execution, two executive pardons, one post-conviction suicide (John C. Colt), three acquittals and six manslaughter convictions. When acting in his judicial capacity, Kent seems to have endeavored to act as a neutral referee, during a period when encouraging a jury to reach a particular result was considered professionally appropriate.
In 1842, when William L. Stone (1792-1844) of the Commercial Advertiser was tried before Circuit Judge Kent for libeling two Aldermen, Kent gave a jury charge that stressed an extremely liberal interpretation of libel law, which cited the First Amendment, the American tradition of press freedom and the jury’s absolute right to acquit in libel cases, regardless of the factual proof.
Kent was rigidly resistant to efforts to obtain commutations of sentence. In the case of Patrick Russell, Governor Seward had a special jury convened, before Russell’s scheduled execution, to inquire into his sanity. The victim’s brother and Russell’s parish priest both testified that he was deranged but Kent appeared as a witness and gave testimony that he was deceptively sane and could converse articulately and in detail.
In the 1840 John C. Colt murder case, the convicted killer – brother to wealthy firearms manufacturer Samuel Colt – became a cause celebre and Kent was demonized for is supposed legal errors. He was placed under tremendous pressure, from the press and prominent lawyers alike, to admit that he had mismanaged the trial and to advocate for a commutation in the name of mercy. It is rumored that Kent left office to avoid having to serve on the Polly Bodine murder case – another high-profile trial-by-newspaper similar to the Colt affair. After leaving office he taught at Harvard for several years, then returned to New York to engage in a productive and uncontroversial private practice. Upon his retirement, the Atlas wrote:
Learned in the law, inflexibly virtuous and high-minded, and perseveringly laborious in the trying position in which he was placed, he shone a brilliant star, and men pointed at and rejoiced in the bright luminary—an honest and learned judge; but his health gave way under the severity of the duties which pressed upon him, and, to save his life, he had to resign in the very spring-time of his fame.
William Kent ran for lieutenant governor of New York in 1852 at the request of his friend Thurlow Weed (1897-1882). Kent was an elector for John Bell, a former Whig who ran under the banner of the Constitutional Union Party, against Lincoln and Douglass, in the 1860 presidential election.
Quotations:
This reminds me of the advice of Judge Kent to a flowery young attorney who was addressing the court. The Judge told him gravely that he thought it would improve his style if he would clip the wings of his imagination, and add the feathers to the tail of his judgment.
— New York Atlas, September 25, 1859
When he went into a court-room, if a judge had his feet on the desk before himself, or was resting on his elbow, he would, at once, assume a proper judicial position; and no judge ever failed to bow to him from the bench. A similar influence was always exerted on the members of the Bar present. Loud talking was hushed; more graceful positions assumed—in short, the bearing and breeding of Judge Kent always made themselves felt wherever he was. Nor was this a cold, awing influence, but the contrary—a response due to the respect and admiration he everywhere awakened. I have been often assured that no judge ever preserved so great silence and propriety on the Bar when on the bench; nor apparently made so little effort to secure such results.
— Charles Edwards. Pleasantries About Courts and Lawyers, 1867
Henry M. Western (1797-1853)
Henry Membery Western was a prominent and politically active courtroom attorney during the 1820s through early 1850s. Born in New York City, he apprenticed in Aaron Burr’s office and worked closely with Burr during the twilight of the elderly lawyer’s career.
Western was active in the Tammany Society, and in Second Ward politics, from a young age. In 1822, he married Hannah Romaine (1801-1860). Hannah was a daughter of Colonel Benjamin Romaine (1762-1844). Romaine was a prominent Democrat – a former Grand Sachem of the Tammany Society and veteran of the Continental Army.
In service to the party, Western worked on committees, attended dinners and raised money for civic monuments. During the election of 1835, he attracted the enmity of the Catholic paper, The Truth-Teller, for his frequent attacks on the Pope and for giving a speech to Democratic Nativists, in particular. (Interestingly, Western’s brother-in-law, married to another Romaine daughter, was Irish Catholic auctioneer Gregory Dillon (1782-1854), a naturalized citizen and advocate for immigrants.)
Western was associated with the Union Society of Journeymen Tailors and (along with James R. Whiting) unsuccessfully defended twenty tailors in an 1836 conspiracy trial for illegal boycott and strike practices. Later in the year, he gave several speeches in support of relief for destitute seamstresses, out of work as the result of the recent economic collapse.
Like his mentor Burr, Western’s legal career largely concerned civil litigation, but he acted as a criminal defense lawyer in prominent cases. Habitually flippant manner in court, he joked with the witnesses in a way that struck primmer litigators as indecorous. He was also an aggressive cross-examiner. In 1837, he represented actor and Bowery theater owner Thomas Hamblin (1800-1853) for an assault on Herald editor James Gordon Bennett (1795-1876). Western cross-examination of Bennett and prosecution witnesses was particularly withering – beyond the bounds of decency in Bennett’s view – and earned him Bennett’s lifelong enmity.
Prior to the Patrick Russell trial, Western had defended three men from the gallows before Judge Edmonds. In 1830 he represented Edward Johnson, a baker who had helped kick an older bystander to death in a fight in a Five Points porterhouse. Johnson was convicted of manslaughter and spared the gallows. In 1835, he defended Charles Seaman. Seaman was a black man indicted for the fatal bludgeoning of James Tuctoras, a reputed sorcerer “known as the Obi-man among the negroes and Indians in Queens and Suffolk counties,” according to the Spectator. Tuctoras, something of a bully in addition to a sorcerer, was struck in the head while attempting to break into an elderly neighbor’s house and Seaman was acquitted. In 1836, Western defended Josh Holim, a Danish sailor who had fatally stabbed a watchman, obtaining a verdict of manslaughter.
Despite his early Nativist associations, Western spent much of his later career as a prominent member of the Hunkers, a conservative Democratic faction with a prominent Irish immigrant constituency. His political fortunes were closely tied to those of Irish Catholic Democrat, James T. Brady (1815-1869). Western ran as a Temperance candidate for New York Mayor in 1852, and attracted a few hundred protest votes.
Western and his wife had seven daughters and six sons. The family had a large house called Dosoris located north of Glen Cove, Long Island.
Quotations
[After a witness describes a crowd cheering on Tom Hamblin in his attack on Bennett and chanting “Kill him!”]
Mr. Western: O the popular Herald?
Mr. Graham: I submit to the Court if this is proper demeanor. Such language is indecent.
Mr. Western: When the gentleman sets up school I will go and get educated.
Mr. Graham: The Court can instruct you!
– Bennett v. Hamblin et al., Court of Sessions. February 17, 1837.
A melancholy affair took place on Thursday in the quiet chambers of peaceable Judge Edwards, and no doubt much to his annoyance. The parties on the occasion were our particular friend and fellow sufferer Henry M. Western, Esq., and George Wilson, Esq., both members of the bar.
Some words taking place between them, Western, with his usual classical taste and refined behavior, called Mr. Wilson “a liar.” Mr. Wilson, very quietly, put his finger and his thumb into Western’s face, and almost twisted off his nose. On this, Western pulled out a weapon and made a lunge at his antagonist. To this argument Mr. Wilson rejoined in as capital a thrashing as ever man got.
Poor Western has got one of his eyes bunged up, and his other so-so. His lip exhibits, undisturbed, the old cut, which the butcher gave him twenty years since, when he commenced his career in the cornfield near Sullivan street.
– “A Fracas Among the Lawyers.” New York Herald. September 9, 1837
Joseph S. Bosworth (1807-1884)
Joseph Sollace Bosworth was born in Cortland, New York, the son of Nathaniel Bosworth (1781-1856), a lawyer who was appointed county court judge in 1823. Joseph was the valedictorian of the Hamilton College class of 1826. He initially studied law in the office of Henry Stephens (1792-1869) of Cortland but, finding that the work was taking a toll on his health, he resigned his position and spent five months working as a commercial fisherman off the cost of Bellisle, Michigan. Afterwards, he studied in the law office of Aaron Hackley (1783-1868) of Herkimer and was admitted to the bar in 1830. He initially practiced in Binghamton, where served as village attorney and as a director of a failed railroad venture. In 1833, he married Frances E. Pumpelly (1811-1879) in 1833 and, in 1836, the couple moved to New York City in 1836.
He was a Democrat, elected to the Assembly in 1843, where he served on the Select Committee on Constitutional Reform. He unsuccessfully ran for Superior Court in 1849 and 1850, but was elected to a seat on that court in 1851, re-elected in 1857 and made chief justice in 1858. He was defeated for re-election in 1863, running as a Union Democrat, by a Peace Democrat ticket. Bosworth was made a commissioner of the Metropolitan Police in 1864 and was president of the police reform board from 1869 until 1872. He published ten volumes of “Bosworth’s Reports” reporting Superior Court decisions, between 1856 and 1863.
Bosworth’s legal practice as largely civil although he appears to have returned to Broome County to as acting District Attorney for part of 1837. Assisting Henry M. Western in the Patrick Russell trial appears to have been Bosworth’s one and only foray into homicide defense, and his only known foray into criminal practice in New York City.
Bosworth was a friend and (according to one source) one time partner of William Kent. Kent and Bosworth were active in the Law Association in the late 1830s, and both acted as referees for the Institute’s moot court. It seems likely that Henry M. Western requested that Bosworth assist him with the Russell trial in hopes that his relationship with the judge might provide them some advantage.
Joseph and Frances Bosworth had four daughters and six sons. Ex-Judge Bosworth died in 1884, having contracting pneumonia after speaking at a memorial service for his colleague Charles O’Conor (1804-1884).
[Bosworth was the subject of a detailed Daytonian in Manhattan post in 2022.]