Civil, political, professional and ecclesiastical history, and commercial and industrial record of the County of Kings and the City of Brooklyn, N. Y., Part 143

Author: Stiles, Henry Reed, 1832-1909.
Publication date: 1884
Publisher: New York : Munsell
Number of Pages: 1360

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While the Chief Justice often sought to shorten the argminents to lessen delays, and hurry forward the counsel, he was not in- sensible to the fact that something was dnc, that much was due to the judgement of counsel seeking to discharge their professional anties. llis patience was proverbial, and there was an acquies. cence of counsel in his rulings and decisions not often seea in any trial, especially in trials of this importance.

The evidence in this case closed on Tuesday, May 18, 1575, the cighty-fifth day of the trial; the remainder of that trial was devoted to the argument of the respective counsel, which ex- hausted twenty-three days. The case was presented to the jury by distinguished advocates in a manner worthy of its import- ance, and with an earnestness evincing a strong conviction felt by them that the law and the right was with them. A degree of eloquence seldom displayed on any occasion embellished a solidity of argument which must greatly have aided the jury in their deliberations; these arguments will always be read with the deepest interest. The argument in support of the defend- ant was opened by John K. Porter, on the morning of May 19 The reputation of the speaker and the occasion summoned to the court-room an immense audience, composed of the most prominent citizens; never was there an audience more highly gratified; "every faet, suggestion or implication involved in the testimony-almost incredible power of clear and brilliant illustration and methodical arrangement - characterized the address. A striking feature of it was the force with which little points of evidence, mere momentary flashes of light cast by brief, and almost unnotiecd expressions of the witnesscs, were brought to bear by the skillful orator."

Mr. Porter closed his great speech in the following beautiful peroration:

" I am reluctant to part with this case, for there are, and there always will be to all of us, pleasant memories connected with it. l'ainful some; pleasant many. * * I know not, your Honer, what to say in acknowledgment of that kindness with which we have all been treated by yon. Ordinarily, it would be merely the (x- pression of sincere feelings of gratitude which is naturally in- spired by long-continned kindness and consideration, but as it happened at the earlier stages of this case that oft-times, in the view of his Honor, decisions were made from which we felt we suf fered injustice, I desire now to say, at the close, that I feel he judged wisely and well, and that on a great issne like this it was equally due to the plaintiff and to the defendant, to all the publi interests involved, that the broad door should be opened for the ndmission of any evidence in respect to the advisability of whi .b there was even a doubt. His Honor felt, and showed that he felt, that it was due to justice that everything that could be ankunt ted to the jury that would nid their deliberations should be Ie fore you, gentlemen ; and feeling thus, it is a matter of siner gratification to me that I have the opportunity now, that allmuny share with me the same feelings, of expressing our sense of respect for the eminent nbility, the impartiality, the knowa in. tegrity, the purity of character of that eminent judge, worthy if not quite of the honored position among jurists of that great and eminent kinsman of his who now sleeps by the waters of Otsego Lako-a name which will be honored through all time; und yet I am not sure that the name of the jurist who promile on this memorable trial will not endure quite as long, for it lis misfortune, and yours, gentlemen, that through cireninstance which you could not have foreseen, his name and yours are to go

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down to posterity together, always associated with a trial which will be memorable through all future time."

On Thursday morning, May 27th, 1875, Hon. William M. Evarts began his argument in favor of Mr. Beccher. Mr. Evarts' appearance on this occasion is thus described :

"His voice during most of the time was pitched in a clear, ringing tenor, only occasionally dropping into a deep bass. He speaks very deliberately, with quiet but telling gestures, and in- clinations of the head ; his slender figure bears some resem- blance to full-length portraits of Henry Clay. His face is thin and pale, his features clear-cut and classic ; his bright blue- gray eyes twinkle with merriment when he tells a humorous story, but look hard and earnest when he is in the midst of a serious argument. His sentences are usually rounded out with rhetorical precision and polish, and he made frequent classical and historical references and quotations."

"I could wish," he said in his exordium, " that I possessed the moral power of stripping all discordant elements, rejecting all poisonous oils, all corrosive acids, all heavy heat of passion and of prejudice, and present to you the pure and invigorating wine of honest sympathy for human nature, of honest warmth for human justice. And then I could wish for that greatest gift, eloquence-eloquence which, overleaping even the short circuit between the voice and ear, speaks out from heart to heart, as face answerethi to face; and what a great thinker among mankind, Lord Bacon, has said is more than eloquence, discretion of speech, that no excitements, no perversions, no enlistments, no animosity should carry him beyond the duty to his client, to justice, to truth, to his opponents, and to you."

He closed this address of unparalleled ability in the following generous and finely-worded allusion to the Court : "And now, if your Honor please, we must acknowledge with respectful de- ference the disposition and the order of this solemn and inter- esting trial-so interesting to these parties, to this community, to all Christendom, to all the future of history, and to acknow- ledge that if there be any miscarriage of justice, your skirts will be free of it ; and also to admit that in the actual experiences of the course of things in this trial, the anxieties and solicitudes that made it so urgent to have the limits secured by definite orders of the Court, under the assignment of particulars of the charge, have proved to be necessary, for we have not had any evidence at all, of any time or place, by any witnesses, going outside the charges in the complaint."

On the morning of the 9th of June, Hon. William A. Beach commenced the closing argument for Mr. Tilton, in some respects the most remarkable argument made on the trial. He was suffering from neuralgia, and occasionally stopped at the end of a sentence, as if to conquer pain. He was also slightly hoarse, but his utterance was distinct and his manner impres- sive; he is one of those speakers who, without any apparent effort, enchain attention. His argument was full of stirring pas- sages, which seldom failed to stir enthusiastic interest among his hearers, which was often exhibited by slight applause. He speaks more rapidly than either Mr. Porter or Mr. Evarts, but his gestures are very powerful and expressive ; his features and manners are stern, while his piercing gray eyes give severity to his look, especially when speaking very earnestly. In the course of his argument, Mr. Beach pleasingly referred to one of his distinguished opponents-Hon John K. Porter-whose ad- dress to the jury he said " is a most remarkable and powerful effort. There is no gentleman in or out of the profession for whom I feel a more unfeigned esteem and respect ; none in the profession whose qualities as a lawyer I more admire. For years I have been accustomed to see him in the very front rank of professional controversy, justly receiving the loftiest honors of our profession." These beautiful remarks were elicited in allu- sion to the fact that Mr. Porter, as might be thought by some, occupied a secondary place in this trial, and he makes this happy reference : "No lawyer of our profession, eminent even as Mr. Porter is, would be at all dwarfed by following the lead- ership of a gentleman whose place is so elevated at the Bar, as is Mr. Evarts." And then he wittily says : "Mr. Porter's humi- liation, ifany, consists in having espoused the case he has." In another part of his argument Mr. Beach refers to his associates as follows : "I must not forget my obligations to my learned, noble, tried associates. If any merit attends my efforts it is due to their sagacity, their counsel and wise promptings. Posting me in the front of this battle, they have yet stood its true leaders and champions." Referring to the Court, he said: " May it please your Honor, it needs not that I should express the common senti- ment of my associates and myself, as we recall the intelligent dignity and fearless learning with which you have guided us through the tangled mazes of this trial. You can receive no nobler tribute than that offered by our adversaries. Contesting every position with animated zeal, and sprinkling this record with objections, they acknowledge with inimitable candor the

entire accuracy of your Honor's decisions. Your Honor, there- fore, has the gratification to know that you have worked no in- justice to this defendant."

In closing the case, Mr. Beach made the following splendid allusion to Mr. Beecher:

" I leave this case without the slightest asperity of feeling towards any, filled with unaffected admiration for the great abilities of the defendant in this case. No man venerates more profoundly than myself his magnificent genius; his large con- tributions to the literature of the times excite the sentiment of which Macaulay speaks in his essay on the life of Lord Bacon." To the jury he said, quoting the language of Webster: " With consciences satisfied with the discharge of duty, no conse- quences can harm you. There is no evil that we cannot either face or fly from but the consciousness of duty disregarded. A sense of duty pursues us ever. It is omnipresent, like the Deity. If we take to ourselves the wings of the morning and dwell in the uttermost parts of the earth, duty performed or duty vio- lated is still with us, for our happiness or misery; and if we say darkness shall cover us, in darkness, as in light, our obligations are with us. They are with us in this life-will be with us at its close."

Before the Chief Justice charged the jury, Mr. Abbott, one of defendant's counsel, submitted to him a series of requests to charge. The judge then proceeded to give his instructions to the jury in a charge clear, direct, simple, and adapted to the com- prehension of the jury. He proceeded to arrange and classify the evidence which had been taken; a portion of it going to the real question before them, another portion to matters of refer- ence, and yet another to the mere question of damages; the jury were taught to distinguish direct from presumptive and circum- stantial evidence. The whole performance was admirable; so pronounced to be by eminent judges and lawyers, and by the press. Having closed his charge, the judge took up the fifty- three requests to charge which had been presented by Mr. Abbott, and pronounced an opinion as to each of them with great clear- ness. Judge Neilson's quick and yet profound appreciation of those propositions, the firmness with which he considered them, promptly declining some and as promptly accepting others, stating his reasons as to each, was among the most difficult duties that devolved upon him at the trial. Having closed, lie ad- dressed himself to the counsel, who had been eagerly intent upon every word he had uttered, and propounded the emphatic and momentous question :

" Gentlemen, are you content ?"

In answer Mr. Beach said, " We are, sir ;" Mr. Evarts said, " Yes, sir."

We have to add the most remarkable fact: there was not an ex- ception taken to any part of the charge, by either counsel.

It would be interesting to know that such concurrence and commendation, ever before or since, have been witnessed in a like case-the toil and excited discussions of counsel so learned, critical and exacting, brought to such beautiful unanimity. We can recall no such instance.

The charge of the learned court had been looked for with great interest and expectation by judges and lawyers everywhere. The public journals in other States, as well as in this, werc speculating as to what the charge would be; the questions, " What can the judge do with the case ?" " What will the charge be ?" It was published in the newspapers in the most distant States, and read with avidity.

But perhaps the best review of it was contained in the Albany Law Journal, from which we make the following quotations : "The brief charge to the jury of Judge Neilson, in the Tilton- Beecher case, is a marked contrast with the address of Lord Cockburn in the Tichborne case. The address of the former occupied only one hour and a half, while that of the latter re- quired many days, and fills two ponderous volumes.' The vast variety of topics, social, moral, religious, political and legal, which were connected with the Tilton-Beecher case, gave the counsel on both sides, and the judge presiding, a splendid oppor- tunity to air their learning, their fancy, their rhetoric and their

HISTORY OF KINGS COUNTY.

logie. This opportunity the counsel accepted, but the judge modestly, and we think commendably, refrained from the dis- play of anything but what the necessities of the ease required. llis charge is a model of clearness, precision and force. It seems almost incredible that the ease could have been presented to the jury adequately in so few words. But a careful purusal of the charge shows that nothing was left out which was necessary to the complete presentation of the ease. The whole address bears marks of the most patient and careful consideration of all the material evidence, under the most wonderful condensation. The spirit which breathes through the address is one of the nt- most fairness and impartiality. The counsel on both sides expressed themselves satisfied, and this of itself is a high testi- monial to the freedom from bias which the charge evinces."

The result of the trial is too familiar to the public to require any description here; as we said, it stands first among the great trials of the nation. Perhaps, in some respects, the trial of Aaron Burr presented more comprehensive and enlarged ques- tions of law, especially the law touching the overt acts of treason. The trial of Warren Ilastings, on the Begum charge, in England, conducted by the greatest British lawyers, created but little moro sensation than the Tilton-Beecher trial. The Gniteau trial possessed more elements that aroused passion and resent- ment, as the murder of an illustrious statesman, the President of the Republic, was its origin. But all these trials have taken n prominent place in history.

To the regret of the profession and the public, the judicial career of Chief Justice Neilson terminated on the last day of December, 1882, he having arrived at the age of 70, the age at which, by the provisions of the Constitution, he was disqualified from discharging the duties of a judge. There were in the public journals of all parties, and by the profession, and by the public generally, expressions of regret on the occasion of his leaving the judicial service. He retired from the Bench to private life with that dignity and under circumstances which shed great Instre upon his character.

We relate a pleasing incident, expressive of the high esteem in which the Bar holds the ex-Chief Justice, which occurred six months after his retirement. Sometime in the spring of 1883, his Brother lawyers, in a cautious address, requested him to sit to an artist of their selection for his portrait. Among other things, this address says:

"The members of the Brooklyn Bar are desirous to testify their affectionate esteem for you by placing your portrait in the City Court of Brooklyn, where you have so long and faithfully presided." That request having been complied with, and the portrait by Jensen, a celebrated artist, having been finished, it was presented to the court with an address signed by the Bar, which was also published, and from which we make the following ex- tract :

"The undersigned, members of the Brooklyn Bar, beg leave to present to the court a portrait of the Hon. JOSEPH NEILSON, who retired from the position of Chief Judge, on the 1st day of Jannary last. Judge Neilson, while on the Bench, by his admirable personal characteristics, strict impartiality and legal nttaimnents, acquired the full confidence, respect and personal regard of not only the legal profession, but of the community at large. As an enduring testimony of this tecling on the part of the Bar, and a well-deserved tribute to his publie services nud high character as a judge, we have the honor to present this por. trait, and request that it may be permitted to adorn the walls of the court room in which Judge Neilson presided so ably and so long."

At its General Term, May 22, 1883, present - Hon. Alexander MeCur. Chief Judge, presiding; Hon. George E. Reynolds, and llon. Nathaniel 11. Clemens, associate judges, the court inade the following order:

"On rendling and filing the communication signed by the llon. James Troy, Hon. John H. Bergen, and other members of the Bar of the County of Kings, presenting the portrait of the Honorable Joseph Neilson, lato Chief Judge of this Court, it is ordered that the gift of the said portrait of our late associate und

Chief Judge be accepted with the thanks of the court, and that, in compliance with the request of the donors, tho said portrait be permanently placed in the court-room; that in accepting this gift we cordially approve of all that is contained in the letter accompanying said gift. It is further ordered that the com- munication, with order, be entered on the minutes of the Gen. eral 'Term of this eourt."

This portrait, an admirable representation of Judge Neilson, executed by the hand of a master, was hung in one of the principal court-rooms, where the portraits of Judge Greenwood, Judge Reynolds, and Judge Thompson were placed ten years ago.

BENJAMIN F. TRACY

is distinguished not only for his eminent eareer as a lawyer, but as a learned, impartial and laborious judge ; an acute, in- dependent-minded legislator, who follows the leadership of his own judgment, subordinated to partisan interest only so far as it enhances the interests of all his constitueney ; a determined enemy to all politieal quaekery. He is also distinguished as a soldier, inspired by a self-sacrificing patriotism ; as a fearless, able prosecuting officer of government, who discharged difficult and responsible duties with clean hands and an honest heart, in times when peculations and stupendous fraud were nearly overwhelming it; when strong defiant rings and unserupulous juntas were, by the unstinted use of money, corrupting the very sourees of justice.

Benjamin F. Traey was born at Owego, N. Y., April 26th, 1830. His father, Benjamin Traey, is one of the oldest and highly respected residents not only of Owego, but of the county of Tioga; a pioneer of the Southern tier; one of that band, most of whom are now banished from earth, whose virtue, integrity, enterprise and industry made the desert bloom, and who laid the foundation for the wealth and culture of that beautiful region.

With the first development of young Tracy's nature he indi- cated a love of books and of study; as years went on he exhibitel more than ordinary intellectual strength and activity. He began his education at the common school of his native village, where he laid the foundation of a practical, thorough and useful educs- tion. Ile mastered all the branches taught in those time-hon. ored primary institutions, where Lindley Murray's " English Reader " was the principal reading-book, still remembered for the purity, elegance and taste of its diction. It was, perhaps, the study of this excellent book that gave Tracy the strong, perspic- uous style which distinguish his written and oral productions.

Leaving the commnon school, he entered Owego Academy, where he remained several years an ardent, industrious, thorough student, acquiring an excellent English education. It was his early ambition to become a lawyer-an ambition which stimulated him in the prosecution of his scientific and literary studies.

Accordingly, after leaving the academy, he entered the offlee of Nathaniel W. Davis, Esq., a respectable lawyer in Owego, as & student of law.

At that time the path to the legal profession had not been smoothed and illuminated by compends, abridgments and digests, as it now is. Neither were lawyers made as easily and cheaply as at the present time. The subtleties of Blackstone, couched in its pure, terse and elegant style ; Coke on Littleton, Fearne, Sugden, Preston, Chitty, Archbold and Graham, with their intellectual subtlety, were the principal sourecs from whenec the law student then derived his legal knowledge. .

But young Tracy possessed a mind peculiarly constituted to grasp intelligibly the metaphysical and critical niceties of these quaint but venerated authors. llo found in the pages of our own illustrious Kent u never failing source of intel- leetnal delight and profit. He did not merely " read law, " but he studied it us a science which is the " embodiment of all

18.7. They

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human reason." He believed that to be familiar with the sources of legal knowledge, to know the appropriate places of the most dissimilar principles, and to be able from close study to comprehend their limits, bearing and relations, is essentially the foundation of a legal education. Tho effect of these convictions upon his studies, and on his future professional and judicial carecr, will be readily seen in the progress of this memoir.

After a few months' study, ho began to try causes in Justices' Court-that humble arena of legal strifes in which so many powerful gladiators of the Bar first learned to wield their intellectual weapons.

Nothing exceeds the interest with which Judgo Tracy in- vests his description of his carly practice in these primary courts; his contests with the old-fashioned petti-fogger of that day-a race of beings now nearly extinct-whose ambi- tion never soared higher than the court of a County Justice, whose conceit and ignorance was only equaled by their blatant impudence and bluster -- legal bull-dogs, with no other training for hunting down their game than the qualities we have named. These were not the only opponents with which the young student had to deal in these courts. At that time many of the ablest members of the Bar appeared in them ; he was, therefore, compelled to study hard, think closely, act with energy and caution, and watch every point with the closest at- tention, in order to sustain himself against the attacks of his more experienced opponents. But he himself soon became formidable in the attack and strong in the defense, and his suc- cess as a lawyer in these courts was assured. It is said he was seldom defeated in a case which he had fully and maturely prc- pared to try. With such a course of study, with such severo discipline in the trial of causes, Benjamin F. Tracy, in May, 1851, was called to the Bar of the Supreme Court of the State.

"Fortunate in the possession of popular endowments, strong in professional knowledge and experience, with a judicious self- reliance, he entered upon his practice as an attorney and coun- selor-at-law, in his native village. It would, perhaps, be the work of supererogation, under these circumstances, to say his success was assured from the beginning.

Love of intellectual labor, perseverance and determination in pursuing it, stand next to genius in the category of human excellence. Indeed, they often eclipse it, for without these qualities genius is inert and brilliancy useless.

At the Tioga Bar, he was compelled to measure himself with the ablest representatives of that and other Bars of the Southern Tier-with Daniel S. Dickinson, possessing a mind of great activity; full of the springs of an effectivo eloquence, as power- ful at the Bar as he was in " listening senates;" John A. Collier, whoso intellect, naturally active and logical, was admirably pre- cise, perspicuous and searching; Alexander S. Divin, dis- tinguished for tho vigor and grasp of his mind, depth of his learning, terse logic, and genial nature; Hathaway, a man of marked intellectual vigor, cultivated and enlarged by learning, keen, fervid, witty, whose arguments at the Bar aro still remem- bered as beautiful specimens of legal oratory; John J. Taylor, George Sidney Camp, John M. Parker, Steven Strong, and other eminent members of the Southern Tier Bar. Such was the arena, such the contestants, against whose prowess young Tracy was compelled to make his way to professional distinc- tion. That he did this, is, alone, sufficient evidence of his capacity as a lawyer.

It was natural that such a mind as Tracy's should find irresist- iblo attractions in the political field. Very early in his profes- sional career he gave his allegiance to the old, and now historic Whig party, but though strong and ardent in his political con- victions, he was not aggressive in maintaining them. In Novem- ber, 1853, he became the Whig nominee for the office of District Attorney for Tioga County-at that time a Democratic strong- hold. It was an ordeal to the young lawyer; but with his usual confidence and courage, he came out of the apparently hopeless

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Civil, political, professional and ecclesiastical history, and commercial and industrial record of the County of Kings and the City of Brooklyn, N. Y., Part 143

Author: Stiles, Henry Reed, 1832-1909. Publication date: 1884 Publisher: New York : Munsell Number of Pages: 1360

Author: Stiles, Henry Reed, 1832-1909.
Publication date: 1884
Publisher: New York : Munsell
Number of Pages: 1360