Esek Cowen .


"So works the man of just renown

On men when centuries have flown;

For what a good man would attain,

The narrow bounds of life restrain;

And this the balm the genius gives –

Man dies, but after death he lives."



SARATOGA, aside from the prestige of its mineral waters, is pre-eminent by being the residence of many distinguished lawyers – men who have adorned the bench by their individual and professional worth. Indeed, during one period of its existence, Saratoga was the centre of a galaxy of legal minds that cast a halo around whatever came within the circle of its influence. The names of Walworth and Willard, Cowen, Warren, and Hill, Rogers and Nash, Beach and Barbour {Oliver L. Barbour was born in 1811, in Washington County, N.Y. He early removed to Saratoga Springs, and, as the confidential clerk of his relative, Chancellor Walworth, became familiar with those great legal principles, the elucidating of which has given him such an enviable reputation in the profession. Hamilton College acknowledged his work by conferring on him the honorary degree of LL.D. He yet resides at Saratoga, greatly honored both at home and abroad – his works being highly commended by Chief-Justice Story, the American Jurist , and other authorities of high repute. He is the editor of the following legal treatises: I. Equity Digest, embracing English, Irish, and American Reports , 4 vols. 8vo; II. Collyer on Partnerships ; III. Chitty on Bills ; IV. A Treatise on Criminal Law ; V. A Treatise on the Law of Set-off ; VI. A Treatise on the Court of Chancery , 2 vols.; VII. Reports of Cases Decided in the Court of Chancery , 3 vols.; VIII. Reports of Cases Decided in the Supreme Court of the State of New York , 18 vols. His latest works are a revision of his Chancery Practice and Equity Practice – the last especially designed to adapt the Code of New York to the practice of other States.} will at once occur to the reader; while the names of others now living in Saratoga, and also eminent in their profession, show that the mantles of the departed have fallen upon worthy successors. The present chapter will be devoted to a sketch of one of the most brilliant of these legal lights, viz., Esek Cowen.

Esek Cowen, the father of Patrick H. Cowen and the late Sidney J. Cowen, was descended from John Cowen, a native of Scotland, who settled in Scituate, Mass., in 1656. He was born in Rhode Island, February 24, 1787. His father’s family removed to New York State in 1790, settling in Greenfield, Saratoga County. About four years afterward he removed to Hartford, Washington County. At sixteen years of age, he began the study of law in the office of Roger Skinner at Sandy Hill, continuing his studies afterwards with Zebulon Shepherd. He was admitted to the bar in 1810, and began the practice of law with Gardner Stowe, in Northumberland, Saratoga County. In 1811 he married a daughter of Colonel Sidney Berry, and the following year removed to Saratoga Springs. {Colonel Sidney Berry, the first Surrogate of Saratoga County, served in the American Revolution; and it was he who was detailed to receive, on the 30 th of September, 1776, the messenger sent by Lord Howe to invite Dr. Franklin, John Adams, and Mr. Luttrage to a conference on Staten Island.} Immediately after the adoption of the Constitution of 1821, and the organization of the judicial system under it, he was made Reporter of the Supreme Court, continuing in that office until 1828, when he was appointed Judge of the Fourth Circuit. On the withdrawal, in 1835, of Judge Savage from the bench of the Supreme Court, he was appointed to fill the vacancy, and continued in that office until his decease.

The high reputation which Judge Cowen enjoyed in his profession, and the high honors which marked the public appreciation of it, were the fruits of his own unaided vigor of intellect. He was peculiarly a self-made man. Six months’ attendance at a common school was all the education he received. The care of an intelligent mother and his own ambition and energy supplied the rest. At the age of fifteen he began teaching school, and so continued during the winters in which he studied his profession. A devoted student, not only of his profession, but of literature in general, he became, in spite of the limited education of his youth, a well-instructed and even a learned man. He taught himself the ancient languages, and became thoroughly conversant with English literature. But it was as a jurist that Mr. Cowen was distinguished. He was a clear and accurate writer – a prompt, acute, learned, and upright judge. His energy, as will hereafter appear, was indomitable. While Judge of the Circuit he made it his constant practice to hear before adjournment every cause ready for trial. Yet, at this period he retired from labors which exhausted the bar, unwearied, to those tasks of study and of laborious compilation of which he has left the monuments in his Treatise and his Notes on Evidence .

The extraordinary endurance with which Judge Cowen was gifted was the result of a splendid constitution, strengthened by vigorous and systematic exercise in the open air. His athletic frame and fine muscular development were often the subjects of remark, and he was wont to say that, when a young man, he could cut his two cords of wood a day without the least undue strain. This physical power was further developed by the singular abstinence of his habits, both in eating and drinking. This abstinence was the result of a rule adopted in his youth; and it may be worthy of note, in this connection, that he was, in 1812, one of the founders, in Northumberland, Saratoga County, of the first temperance society in the United States.

In 1817, he associated with him in partnership Mr. William L.F. Warren, who had previously been a law student in his office – a partnership which continued until Judge Cowen was appointed State Reporter in 1824. Mr. Judiah Ellsworth was also associated with him after his dissolution with Judge Warren, for five or six years. Soon after his removal to Saratoga Springs, he purchased property on Congress Street, and built the Stone House, so long known as his residence, and also the office where were written Cowen’s Treatise and Notes on Phillipps’ Evidence . {The stone house and office are yet standing; the former occupied as a saloon and residence by Michael Grimes, and the latter as a blacksmith-shop by Thomas Flanagan. The office was also at one time the village lock-up."} The latter of these works represents a labor of eleven years, in the last three of which he was assisted by Nicholas Hill and William L.F. Warren. {In 1839, Gould, Banks & Co. published the work last named in four volumes. Vol. I. is a republication of Mr. Phillipps’ first volume; Vols. II. and III. are well known as Cowen and Hill’s Notes to Vol. I. The second volume of Mr. Phillipps’ work is republished in Vol. IV., "With Notes." The title-page gives as the author a "Counsellor-at-Law," and very few are aware that these notes to Vol. II. of Phillipps’ were prepared by William L.F. Warren, who states in his preface: "The notes to this volume were undertaken at the suggestion of Judge Cowen, and with the expectation of being supervised by him. The official avocations of the Judge, however, were such that this expectation was early abandoned, and the work was continued on the sole responsibility of the present editor. The author, therefore, is no otherwise indebted to the Judge than for the use of his office and valuable library." These volumes, together with Cowen’s Treatise , were, during one generation at least, more extensively consulted than any other law books then extant.} Here were written those learned opinions which illumined the Reports in the best days of our jurisprudence, and which have since rendered his name illustrious; and here, also, was written his famous opinion in the celebrated "McLeod case," in which were discussed the question of perfect and imperfect war, and other great national principles, and which by its marked learning and ability attracted the attention of the civilized world. "The Court," says a learned authority of the day, " in refusing to discharge McLeod , have nobly maintained the supremacy of the laws, and vindicated the dignity and rights of this State." The law there laid down by Cowen was, in fact, conceded by all eminent jurists, both in this country and abroad, to be sound doctrine, and the true exposition of international law – none being more ready to admit the full force of those governing principles than the learned Judges of England. Judge Cowen was also fully sustained in his opinion by his associates on the bench – Chief-Justice Nelson and Justice Bronson.

Of Judge Cowen’s opinions, which so eminently distinguished him as a jurist, it has been said, that "in their depth and breadth of research, and their strength and reason of bearing, they are not excelled by those of any judges in England or America." "His opulent mind, his love of research, caused him to trace every legal opinion to its fountain-head – to discover every variation between apparently analogous precedents; for him, all authority, whether English, French, or American, was as familiar as the simplest elemental principle. Like Lord Mansfield, to whom he has frequently been compared, he was accustomed, in the preparation of his opinions, to a liberal expenditure of mental capital – an excess of intellectual labor which renders them the triumphs of a great genius, impelled by an unprecedented industry."

The predominant characteristics of Judge Cowen’s mind were penetration, quickness of perception, force and originality of thought. He was a man of untiring zeal in intellectual labors – with fixed habits of intense application – and while yet young he became and ripe and varied student, earning the reputation of being one of the most finished scholars as well as one of the most erudite judges of the nation. He devoted never less than fourteen hours a day to study – often protracting his labors far into the night. An amusing anecdote illustrating this is in point. At such times he never consulted his watch, but used wax-candles – starting with fresh ones every evening; when they had burned to the socket, it forced him to bring his labors to a close. On one occasion he thought he would substitute for them a lamp, as requiring less attention in snuffing. The hours wore on, and the oil being unexhausted, daylight found him still at his labors. He made the trial a second night, but with no better success, and was obliged to return to his candles.

Such, moreover, was the rapidity of his mental operations, the quickness of his perceptions, that he could almost intuitively understand and grasp the argument of counsel, and follow them through the chaos of precedent with unerring accuracy while engaged in studying the details of the case in the papers before him. Frequently, during the argument of a cause, he would become so devoted to the papers, now marking some important sentence, and now making some memoranda on the margin, that he apparently gave no attention to the reasoning of counsel. This seeming indifference and inattention was often very embarrassing, and once gave rise to the following anecdote. On one occasion when the late Samuel Stevens was engaged in the argument of an important case, Judge Cowen became so absorbed in reading the case as to give Stevens the impression that he was not giving his argument the least attention. As it was a suit involving many intricate legal questions, Stevens was particularly anxious that Cowen should thoroughly understand him, and his seeming want of attention to his argument gave that eminent and usually self-possessed lawyer so great uneasiness that he proceeded with considerable hesitation and embarrassment. While the latter was devising in his mind some means by which he could gain the undivided attention of the court, Judge Cowen, suddenly raising his eyes from the papers before him, said: "Mr. Stevens, you have several times in your argument referred to the eighth section of the act to prevent usury, as providing that all and every person sued for the same, shall be compelled to answer on oath to any bill preferred for discovering the money taken usuriously. I do not understand the eighth section that way. Does the learned counsel so understand it?" "Certainly I do," was the reply. "Are you not mistaken?" "I do not think I am, your Honor, but I will see," said Stevens, opening the statutes which lay before him, and turning to the section. "Well, your Honor, I am mistaken; it is the fourth section that contains the provision I allude to, and I am most happy to be corrected by your Honor." "Proceed, Mr. Stevens, I do not desire to interrupt you," said the judge, making a note with his pen at the bottom of the written page before him. "I was delighted with Judge Cowen’s interruption," whispered Stevens to Benjamin F. Butler, after concluding his argument, "for I thought he was not listening to me at all, but I see he understood the case better than I did, for I was getting confoundedly nervous at his apparent indifference to my argument."

Among his other characteristics Judge Cowen possessed, as before hinted, indomitable energy and remarkable powers of endurance. Several anecdotes illustrating these traits are worthy of mention. It is related of him that on one occasion, while he was Circuit judge – for the purpose of closing up the business of the term – he sent the Sheriff to the hotel at midnight to arouse the District Attorney to try the last case on the criminal calendar. The case was tried then and there, and the business of that circuit, at least, was closed up. Major James R. Craig, of Schenectady, tells also the following incident of his boyhood, when for the first time, he was examined as a witness. The plaintiff, who resided in Saratoga County, had sued Craig’s father, and the cause was tried at Ballston, before Judge Cowen. About midnight Craig was called as a witness for the defence, and had been examined at length, when, a discussion arising between the counsel as to the admissibility of evidence, he fell asleep. How long the "sparring" continued he does not remember, but he was suddenly awakened by Judge Cowen saying, "You can answer the question." Rousing up and rubbing his eyes he replied, "What question do you mean, judge? I have been asleep." His examination continued until two o’clock in the morning, and his recollection is, to this day, most vivid of the long, dark walk afterward down the hill from the Court-House and through the streets to the Sans Souci Hotel. Again, on another occasion, the Circuit term of the Court in Essex County, while Cowen was Circuit judge, began on Tuesday and ended on Saturday. At one of these terms in January, late on Saturday night, there still remained an important case untried. Judge Hand was counsel on one side, and the late General Ross on the other. Witnesses on both sides had been subpœnaed and were in attendance. The parties and counsel being equally desirous of trying the case, Judge Cowen said that he had to be at the Clinton Circuit on Tuesday morning, but would detain the jury till Monday and try the case on that day, provided the principals in the suit, with their counsel and witnesses, would be at the Court-House promptly at seven o’clock in the morning. All agreeing to this, the Court was accordingly adjourned to that time. On Sunday afternoon there began one of those snowstorms peculiar to that region, which continued unabated throughout the entire night and during the following day. Nevertheless, precisely at seven o’clock Monday morning, Judge Cowen stood on the steps of the Court-House, in the midst of the driving storm, with the snow up to his knees – but neither the clerk, the jury, the parties, the counsel, the witnesses, nor the spectators were there! After looking about for a few minutes, he made formal proclamation that the Circuit Court, and Court of Oyer and Terminer, in and for the County of Essex, was adjourned sine die , and departed.

In social life Judge Cowen was invariably cheerful – at times almost jocose. He drew all hearts to him, and disarmed the criticism of those superficial observers who called him cold; for, although intensely practical and of great independence of character, yet in him there was no lack of fine sensibility, as all felt who had mingled sympathies with him in the hours of social relaxation. In one point, especially, he greatly resembled his connection by marriage, Mr. Miles Beach. No one who needed aid ever appealed to him in vain; and many are they whom by material means and kindly advice he has started on the road to fame and fortune. The late Gideon M. Davison, in his remarks on the occasion of Judge Cowen’s death, says: "He was my early friend and benefactor – the one who, when I needed aid, kindly took me by the hand and led me through various trials – the one, in fact, who laid the foundation of all I have of earthly possessions." And doubtless there are others to-day who, if they were disposed to be as noble and generous as Mr. Davison, could come forward and offer a similar tribute on the altar of his memory.

Nor was his liberality confined to acts of private kindness. In 1832 he united with Dr. Clarke and Judge Walton in building an Episcopal Chapel on the corner of East Congress and Putnam Streets – Cowen furnishing the money, Clarke the land, and Walton the timber. It was called Bethesda Chapel, and in it the Episcopal Society worshipped until the completion of their present church on Washington Street.

Judge Cowen’s house was frequently the scene of kindly hospitality, where those politically and intellectually eminent were made welcome and entertained with that quiet courtesy which distinguished his personal demeanor. His genial sympathies, rare poetic taste, humor, and love of music, united to a voice of great sweetness in singing, made him a delightful companion, one of his favorite pastimes being to accompany Mrs. Miles Beach in singing those plaintive Scotch ballads, such as "Highland Mary," "Bonnie Doon," and "Mary in Heaven." His house was also the home of the oppressed. The Canadian patriots, L.J. Papineau, Doctors O’Callaghan, Nelson, and D’Avignon, found here a hearty welcome and a safe asylum. Under his roof Mr. Papineau, under an assumed name, passed the first night of his sojourn in Saratoga, starting the following morning, accompanied by the late Sidney J. Cowen, for "the lines," in search of his son, who had also just made his escape from Canada.

In person Judge Cowen was tall, being over six feet in height, and possessed of great dignity of presence united to the most simple and unassuming manners. A correspondent of one of the leading papers of the State thus describes his personal appearance when on the bench of the Supreme Court the year before his death: "Justice Cowen has his seat on the left of the Chief-Justice, where he sits solitary and alone, watching with care and attention the advancements made by the counsel. Justice Cowen has the highest order of a reflective mind. The marks of deep thought rest upon his brow – his locks are silvery white, and the blood has so much forsaken his veins, that when he closes his eyes, which he frequently does, he seems as unearthly as the ghost of the Venetian maiden who appeared to her lover before the walls of Corinth. His hands are bloodless –

"And were so transparent of hue

You might have seen the moonshine through."

Judge Cowen died in the city of Albany on the night of the 11 th of February, 1844. Many still remember the gloom that pervaded that city when his death was announced the following morning, and the obituary honors which were paid to his memory. {Among other resolutions passed by the Legislature was the following: " Resolved , That as a mark of respect for his great learning, varied acquirements, simplicity of manners, unostentatious deportment and integrity of character, the members of the Legislature will wear the usual badge of mourning thirty days."} The funeral in Albany took place on the 13 th . The coffin was borne to the great hall of the Capitol followed by the clergy of the city, the Governor and State officers, both Houses of the Legislature, the judges and members of the bar, the corporation of the city and a large body of citizens. Religious ceremonies having been held, the procession again formed, and accompanied the remains as far as the Patroon’s, on the route to Saratoga Springs, where, on the 15 th , the last obsequies were performed, Rev. Dr. Babcock, of Ballston, reading the burial service, and Rev. Edward Davis delivering an impressive discourse.

The bells of the different churches were tolled, and all the stores and shops closed while the procession was in motion and during the ceremonies at the grave.

"Ye need not hang that candle by the desk;

Ye may remove his chair, and take away his book;

He will not come to-night."



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