Civil, political, professional and ecclesiastical history, and commercial and industrial record of the County of Kings and the City of Brooklyn, N. Y., Part 144

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

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contest victorious, being elected by an exceedingly handsome majority.

The office of District Attorney at such a Bar was calculated to stimulate all his powers, awaken all his energies, and put in requisition all his learning. The whole system of our criminal law was then full of technicalities, and the courts, in their ad- ministration of it, were scrupulously strict in adhering to subtle forms and rigorous rules. Thus, the prosecuting attorney was compelled to walk, as it were, over mines which the touch of some skillful antagonist might suddenly explode. But Mr. Tracy was equal to the duties of his office. His patient in- vestigation, careful preparation, quick insight into the objec. tive point of a case, shielded him from motions to quash his in- dictments, motions in arrest of judgment, and all those skill- ful attacks, in which keen and learned Jawyers assail the public prosecutor. We believe he never had an indictment quashed. It was in the discharge of his duty as District Attorney of Tioga County, as we shall hereafter see, that Benjamin F. Tracy pre- pared himself to enter upon a wider, more difficultand responsi- ble field as a prosecuting officer of the United States.

At the expiration of his term as District Attorney, he was again placed in nomination for that office. This timo his opponent was Hon. Gilbert C. Walker, popular not only with his own party, but with the people generally. The prospects of Tracy's election at first seemed dubious, but after a close and heated contest he was triumphantly elected by a majority of 900. At a later period Walker was elected Governor of Virginia, and subse- quently became a distinguished representative in Congress from the 3d Congressional District.

Notwithstanding Walker's defeat, he became an intimate and valued friend of Tracy's, and, in 1857, his law partner. The firmi soon became one of the most influential in the Southern Tier counties, controlling an extended and a highly remunera- tive business. This relation continued two years, when it was severed by Walker's removal to Chicago.

At the expiration of his second term, Tracy was again tendered the nomination for District Attorney, but his rapidly increasing civil business compelled him to decline. In the meantime his reputation continued on the ascendant, until it was generally acknowledged that he was the most successful lawyer who ap- peared at the Tioga Bar. This is evinced by the fact that he often tried eleven or twelve causes of his own at its circuit, being successful in every one. Charles O'Conor onco remarked, "that a lawyer who succeeds in one-half the causes tricd by him is eminently successful."

The secret of this success, and of Tracy's control of the popular mind, may be found in his sincerity, constancy, and direct- ness. There is no deceit in his nature; men aro never left in doubt about his views; and, what is better, lie is never in doubt about himself; one always knows exactly where to find him. lis sympathy is always with the masses. No man understands the impulses of the people better than he, and he has an intenso sense of justice between man and man, estimating men accord- ing to their true worth. He never stands on assumed dignity, nor by word or manner indicating any assumed personal superi- ority. In his official positions his policy was never timid or vacillating. Whatever the responsibility, lio never hesitated to assume it, but always moved promptly to the front. Perhaps nowhere in his whole carcer were these features moro conspicu- ously exhibited than when discharging the duties of United States District Attorney for the Eastern District of New York.

As time went on, the cloud of Civil War began to gather over tho land, and then it was that the self-sacrificing patriotism of Tracy developed itself in private life, in legislative halls, and amid the stern events of war.

Upon the dissolution of tho Whig party, Mr. Tracy became a Republican from principle. In the autumn of 1861 he was nomi- nated and elected a Member of Assembly by the Republicans and War Democrats of Tioga County, taking his seat in that body

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Jannary 7th, 1862. After a close and somewhat bitter contest, Henry J. Raymond was chosen Speaker of the Assembly. In this contest Tracy exhibited abilities that rendered him quite as con- spicuous and successful as a legislator as he was a lawyer. Ile was a friend of Raymond's, warmly supporting his claim to the Speaker's chair. Indeed, he was the leader of the Raymond party in the contest, evincing abilities and influence that added largely to Mr. Raymond's success. Tracy's leadership was promptly recognized by Mr. Raymond, who immediately upon his nomination moved that Tracy be appointed chairman of the committee to call future caucnses of the Republican members of the Assembly. Tracy's legislative career, thongh short, was ex- ceptionally creditable for the work performed and the responsi- bility thrust npon him. Mr. Raymond, whose warm friendship he enjoyed till the sudden death of that gifted statesman, recog- nized his personal ability by cansing his appointment on the most important committees, making him a member of the Judic- iary, and Chairman of the Railroad Committee, and of "Bills entitled to early consideration "-the latter position, as head of the "Grinding" Committee, giving him largely the control of legislation. He soon distinguished himself in the House by his readiness in debate, and the terse logic of his speeches. HIe evidently, in speaking or writing, is guided by the maxim of Quintilian, Cura sit verborum ; solicitude verum. "To your ex- pression be attentive, but about your matter be solicitous."

Early in the session Mr. Hubbard, Chairman of the " Ways and Means," reported from that committee a series of resolutions upon the subject of finance, committing the Legislature to a national policy of carrying on the war exclusively on specie basis. Tracy, having moved an amendment to the resolution, in sub- stance pledging the credit of the nation in every form available for the prosecution of the war, made, in support of his amend- ment, the first legislative speech ever made in the United States in favor of the issue of paper money for carrying on the war. Ifis career in the Legislature was not only honorable to himself, but nseful to his constituents, and to the public. He was a frequent, though not obtrusive speaker, neither courting nor shunning debate ; never feeling that it was necessary to his reputation to speak on every question that came up for discns- sion. His great aim was to forward the business before the Honse, especially the business in his charge.

At the close of the session he returned to Owego and resumed the practice of his profession.

"In the spring of 1862, still remembered as a period of alarm to the friends of the Union cause, new levies were imperative for the Federal army, and Gov. Morgan at once appointed a com- mittee in each Senatorial district to organize a general recruiting effort. Tracy was one of the committee for Broome, Tioga, and Tompkins counties. Ile accepted the charge, and, in addition to general service as a member, he received a commission from the Governor, and personally recruited two regiments, the 109th and the 137th, making his headquarters at Binghamton. The active work was completed in thirty days, and Tracy was ap- pointed colonel of the 10th, with which he reported to Gen. Wool, at Baltimore, in whose department it remained until transferred to that of Washington. In the spring of 1864 the regiment was ordered to join the Ninth (Burnside) Corps, then a part of Grant's advance. Colonel Tracy led his regiment with great gallantry in the battle of the Wilderness, when its loss, on Friday, May 6th, was upwards of eighty killed and wounded. Near the close of the fighting on that day, he fell exhausted, and was carried from the field. Urged by the staff of his command- ing officer to go to hospital, he refused, but resumed the lead of his regiment, and held it through three days of the fighting at Spotsylvania, where he completely broke down, and was com- Illed to surrender the command to the lieutenant colonel.

As soon as he became satisfied that months must elapse before be conld ngain join the army, and not liking military service in

a hospital, he tendered his resignation, and came North to re. cruit his health. la the following September, without solicita- tion on his part, Secretary Stanton tendered him the appoint- ment of Colonel of the 127th United States Colored Troops, which he accepted. Subsequently, he was ordered to the com. mand of the military post at Elmira, including the prison camp and the draft rendezvous for Western New York. This was a large and important command. In the prison camp there were at one time as many as 10,000 prisoners.

The treatment of prisoners of war has been a subject of ex- tende.l and bitter controversy between the North and the South. That there was much suffering and great mortality at Elmira is not denied, because these are inseparable from large military prisons; but that either can be attributed to cruelty or neglect is positively denied. Nothing that could be reasonably done to alleviate the suffering of the prisoners was omitted. The very best of food was supplied in large quantities, while the barracks were large and commodious-nearly all new and built expressly for the prisoners; the accommodations and supplies furnished them being in all respects the same as those supplied to the Federal troops on guard, and to the volunteers received at the draft rendezvous."

There are a class of men who achieve distinction that seem to resemble the mechanic who forms his calculations and fashiens his machinery upon the abstract considerations of the mechani- cal powers, making no allowance for friction, the resistance ef the air, or strength of his materials. This was not the case with Judge Tracy. He exerts a quick, careful examination of every circumstance by which he is surrounded, even though sprung upon him instantaneously. Perhaps nothing in his life mere strongly illustrates his ability to overcome sudden difficulties than the triumphant manner in which he repelled the dastardly attack made by Hill, of Georgia, in the House of Represent- atives, March, 1876, upon our treatment of rebel prisoners at Elmira. It was virtually an attack upon General Tracy, and took place in the celebrated debate between Hill and Blaine, in which the former, incensed by the representations of the latter of the horrors at Andersonville, referred bitterly to the Elmira camp, charging upon its management cruelties quite equal to those recorded of the Southern prisons.

General Tracy was at home at this time, and it was by mere accident that he learned the nature of the debate in progress at Washington, and of General Hill's charges. This occurred at a time when the General was deeply engaged in an absorbing and important matter.

One morning, while rapidly glancing over a New York daily, his attention was arrested by the heading, in large capitals, ef a column, as follows: " HILL, OF GEORGIA, ON THE ELMIRA PRISON ; he alleges that the rebel prisoners confined in it during the rar were treated with great inhumanity," &c., &c. After reading it carefully, burning with indignation, he hastened to telegraph Mr. Platt, member from the Twenty-eighth District, a full, well- worded reply to Hill. This reached Mr. P., in the House, while the debate on the subject of the prison at Elmira was still in progress. Immediately arising to a question of privilege, he sent the remarkable telegram to the clerk, by whom it was rend to the House. It commanded profound silence, falling upon Hill and his Southern friends like a sudden chap of thunder Hardly was the reading concluded when Hon. C C. Walker, a inember front the Elnrira district, an intense Democrat, sprang to his feet, and, in a few glowing and effectunl words, fully sus- tained General Tracy's telegram ; alleging that, to bis own knowledge, every word of it was true. This ended the delaste, completely refuting the charges made by Hill.

"I'pon the conclusion of peace, General Tracy went to New York, entered the firm of Benedict, Burr & Benedict as a part- ner, and resumed the practice of his profession. This nssoc 1 tion continned until October, 1866, when Tracy received tho

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appointment of United States District Attorney for the Eastern District of New York, when he terminated his relations with the firm mentioned."

While in practice in New York, he exhibited all the qualities of what may be termed a great lawyer.

Space will not permit ns to describe at length the causes in which he achieved signal professional triumphs. We may, how- ever, refer briefly to one of these cases, that of United States, vs. William Chase Barney, et al., indicted in the fall of 1865, for an attempt to defraud the government by making and executing fraudulent bonds for the exportation of goods; a case of great importance, and which attracted general attention. The firm, of which Gen. Tracy was a member was retained for the de- fense, which was assigned to Tracy. Daniel S. Dickinson was then District Attorney for the Southern District of New York, and, assisted by Samuel Courtney, Esq , and John Sedgwick, Esq., appeared for the prosecution. This was a formidable array, but Tracy, with characteristic self-possession and self- reliance, entered upon the defense. It came up for trial in New York, before Judge Shipman, of Connecticut, when Tracy promptly gave notice of a motion to quash the indictment, on the ground that there was no statute of the United States by which a crime committed in the Custom House of the City of New York, could be punished. When the day appointed for the argument arrived; his distinguished opponents treated the motion as a matter of small importance, void of merit, and felicitated themselves on an easy victory. But the learned and accomplished judge-with a mind at once comprehensive and acute-from the beginning, took another view of it, and listened with the most profound attention to Tracy's argument, in which he presented his points in all their force-arranged them with artistic skill, so as mutually to sustain and strengthen each other, presenting an imposing and harmonious whole. It was only when Tracy had concluded his argument that the counsel for the government comprehended their danger, and then the struggle commenced in earnest. But to the bold theory of Tracy, that there was no law for the punishment of the crime alleged against his client, they could give no adequate answer, and the indict- ment was quashed.

In the autumn of 1866, Hon. Benjamin D. Silliman, who had for some time discharged the duties of United States District Attorney for the Eastern District of New York, resigned the office he had discharged so acceptably. The resignation of Mr. Silliman was generally regretted by the Bench, the Bar, and the public generally. The appointment of Judge Tracy as his successor was very popular and the manner in which he dis- charged the duties of the office, entitles him to the highest con- sideration and, it is no affectation to say, to the gratitude of the National government. That he had this, in its fullest sense, must be to him the most gratifying, nay, the proudest incident in his long and distinguished career.

"Gen. Tracy was placed in this official position at a period requiring the maximum of courage, legal acumen and energy on the part of the Federal prosecutor. His district contained a large proportion of the whiskey production of the seaboard, more than five hundred distilleries being counted within its limits. Very many of these were small illicit affairs, and all were contriving to cheat the government of its dues.

For two years Gen. Tracy gave his exciusive attention to this class of revenue defaulters, fearlessly exercising all the powers of his official authority and professional talents against its members, rich or poor. The struggle was a severe one, the 'Whiskey Ring' using its immense profits to bribe revenue officers, and to subsidize the best legal talent ; and, had its assailant been wanting either in ability or moral or physi- cal bravery, the victory might have been on its side. Tracy was not only an honest servant of the United States, but a relentless enemy of all who aimed to defraud the country. Despite threats and proffercd temptations, he did not relax his pursuit. In the

winter of 1867, at the request of the Ways and MI ans Committee of Congress, indorsed by the Internal Revenue Commissioner, he drafted a bill regulating the collection of taxes upon distilled spirits, which, in one year after it became a law, resulted in securing $50,000,000 for the United States Treasury, instead of the $13,000,000 collected the previous twelve months. Before the multifarious assaults of this admirable enactment, the combination of distillers, lawyers and traitors in office was obliged to succumb. Mr. Rollins, the commissioner-in-chief, declared, after the battle, that had it not been for the United States District Attorney for the Eastern District of New York, and two other United States District Attorneys, the internal revenuc system of the United States would have been an utter failure. In 1873, Mr. Tracy resigned his Federal position and resumed the practice of his profession in Brooklyn, where he has sinco resided, and where his practice is very extensive." He has been engaged in most of the important trials that took place at the Kings County Bar. Among these trials was the famous Tilton-Beecher case, by far the most important legal contest that ever took place in the State of New York, if not in the United States. Gen. Tracy entered into it not only as one of the coun- sel for Mr. Beecher, but as his warm personal friend. In the discharge of his duty, the brilliancy of his talents, the depth of his learning, and his legal oratory were liberally acknowledged by the illustrious lawyers with whom he was associated, and by whom he was opposed. The difficult and onerons duty of opening the case of the defendant was assigned to him. Under the circumstances that surrounded the whole case, this duty was peculiarly difficult and embarrassing. The manner in which he discharged that duty was not only a triumph for himself, but for his client. His intellect was never more vigorous and active. The subject was particularly adapted to the organization of his mind; he was at home amid all its intricacies, and successfully encountered all asperitics and prejudices with a facility that exhibited consummate skill and extraordinary reach of thought. As has well been said, " Perhaps no spcech ever delivered at the Bar was so widely read; and probably no professional address ever made a greater impression upon the public mind than this. The current of public opinion had been heavily against Mr. Beecher for some weeks, and the evidence of Mr. Moulton, shrewdly reserved by Mr. Tilton's counsel for the close of the case, had produced a profound sensation - so strong, indeed, that Mr. Beecher's enemies, and many of his friends, believed that its effect could not be overcome.

The responsibility of opening the case under these circum- stances was a momentous one. A hundred detailed statements were to be met and refuted; a multitude of new facts were to be foreshadowed and stated in their proper connection, while the least failure to prove what was promised by the opening address would be disastrous. Mr. Tracy, therefore, wrote out nearly one- third of his speech, covering most of the details concerning which strict accuarcy was needed; although the part orally delivered also contained a large amount of details respecting matters with which the speaker was so familiar that he relied unhesitatingly upon his memory. The address extended over four days, and its effect was remarkable, both in the rapidity and ex- tent of the change made in public sentiment. The boldness with which it put Mr. Beecher's assailants on the defense ex- cited surprise. The only question seemed to be, "Can these statements be proved ?" Mr. Beecher's friends believed they could. His enemies were not sure that the proof would fail, and of course were placed in much doubt and fear. The proof was substantially given, as was demonstrated to the satisfaction of all who followed the masterly words of Judge Porter, and the magnificent cloquence of Mr. Evarts, in the summing up. The jury, although unable to agree, stood nine to three in favor of Beecher, upon the final ballot. The action was never tried again."

Another duty in the conduct of that great trial, quite as

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HISTORY OF KINGS COUNTI.

responsible and laborions as the opening address, quite unex- pectedly devolved upon Tracy. This was the cross-examination of F. D. Moulton, a leading witness for the plaintiff. It had been assigned to that distinguished advocate, Hon. John K. Porter, who, after conducting it two days with his nsual ability, was suddenly taken so ill that it was impossible for him to continue it.

Such was the nature of Moulton's dircet cvidence, that it required, in the person cross-examining him, peculiar ab- ility in the use of that thumbscrew of the law-a cross-exami- nation. To conduct it successfully is the most difficult and important duty that can be committed to a lawyer. When it is not foundel on materials of contradiction, or directly, to obtain some information which the witness will be willing to give, it proceeds on the assumption that the party interrogated has sworn an untruth, which he may be induced to vary, and it always brings on a sharp mental contest between the advocato conducting it and the witness. After a brief consultation with his associates, and with the other frieds of Mr. Beecher, Tracy was selected to continue Monlton's eross-examination in Judge Porter's place. He began on the morning of January 20th, closing at noon on the 26th, exhibiting a singular knowledge of human nature, of the springs of human action, an ingenious and nice discrimination of his interrogatorics and manner of propounding them.

His efforts were eminently successful in strengthening the defense, and in weakening the prosecution.

In December, 1881, General Tracy was appointed by the Governor an Associate Justice of the Court of Appeals, in placo of Hon. Charles Andrews, promoted to tho office of Chief Judge of the Court of Appeals. This high position was tendered him in recognition of his accomplishments as a lawyer, and of his naturally judicial mind and method.

His appointment was exceedingly satisfactory, not only to the Bar of the State, but to all the members of the Court of Appeals. He carried to the Bench; an inflexible honesty and impartiality, that rose above every influence; adjusted to all occasions. Immediately after his appointment he entered upon his judicial labors-the hearing of arguments, studying and elaborating his opinions, writing them, and in consulting with his brethren of the Bench; in fact, he assumed the duties and the labor of an old and experienced judge. The facility with which he acquired the habit of judicial business, and the promptness with which ho transacted it, was remarkable. His duties, however, were onerons, and extremely wearing to his physical strength; but as his knowledge of law was deep and practical, his powers of comprehension and analysis strong and vigorous, he was able to perforin a large amount of judicial labor with apparent ease.

Judge Tracy's written opinions are the best history of his judicial career. They commend themselves, not only to the professional, but to the lay reader. For clearness of expression, research, logical compactness, pointed illustration, and the absence of all pretension and show, they aro certainly remark- able judicial productions, destined to live in legal history, to guide and enlighten the judiciary and the profession.

Space will not permit us to enter on any description of tho minerous opinions written by Tracy in cases adjudicated in the court of last resort of the State. Wo cannot, however, avoid referring briefly to a very few of the most important of them.

First in importance among these is Story, applt., agt. The New York Elevated Railroad Company, 90 N. Y., 122. (See Important Trials. ) This case derives its interest and importance because it decides the question, "To what extent can privato property be taken for public uso within the meaning of tho Constitution, which provides that private property shall not be taken for pub. lie use without just compensation ?"

Judge Tracy's opinion in this case is one of the ablest, most lenrued and exhaustive found in the reports of this State. The Imes on which he sustains the plaintiff are sharply but nicely

defined. The action was brought to restrain the defendant, the said railroad company, from constructing its road in that por- tion of Front street, New York City, opposite plaintiff's premises, withont just compensation. Judgo 'Tracy's decision reverses that of the Supreme Court, which was in favor of the milroad company. We commend a close reading of the case to tho stu- dent, the practitioner, and to business men. Those able and enlightened jurists, Justices Danforth, Rapallo and Andrews, concurred with Judge Tracy against the dissenting opinions of Justices Earl and Finch. The following are among the cases ef great importance and interest, in which Judge Tracy wrote the prevailing opinion: Smedis v. The Brooklyn and Rockaway Rail- road Company. This was a very important case, and was one of the first, if not the first, in which Judge Tracy wrote an opinion. The People ex rel. Neil Gilmore, Superintendent of Public Instruction, etc., v. Frederick Hyde, 89 N. Y. 11. John A. Stewart, applt., v. The Brooklyn and Cross-Town Railroad Company, respt., 90 N. Y., 588. This case is of vital importance to the vast number of people who travel on the city railroad cars. The plaintiff, while a passenger on one of the defendant's street cars, was nnjustifiably attacked and beaten by the driver, who also acted as conductor. The former brought an action against the company, instead of the driver, to recover damages. The plaintiff's complaint was dis- missed at the Cirenit on tho ground, that if a servant, nuder the guise and cover of excenting his master's orders, and exercising anthority upon him, willfully and designedly, for the pur- pose of accomplishing his own independent, malicious or wicked purposes, does an injury to another, the master is not liable. The plaintiff appealed to the General Term of the Supreme Court, whero the judgment of the Circuit was duly affirmed. He then appealed to the Court of Appeals, where the judgment of the Circuit and General Term was in all things reversed.

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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 144

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