USA > New York > The bench and bar of New-York. Containing biographical sketches of eminent judges, and lawyers of the New-York bar, incidents of the important trials in which they were engaged, and anecdotes connected with their professional, political and judicial career > Part 25
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Soon after the appearance of this pamphlet, Mr. Spencer wrote another, on The Pretensions of Eng- land as to the Right of Searching American Vessels on the High Seas ; which contained a strong and an exhaustive argument against that assumed right. This pamphlet, together with a speech made by John Ran-
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dolph, in Congress, previous to its appearance, on The Neutrality Question, greatly influenced our gov- ernment in its policy on the question of the right of search, and in resisting it. The speech of Mr. Ran- dolph and the pamphlet of Mr. Spencer were both republished in England.
It was one of the merits of Mr. Spencer that he entered thoroughly into his subject, leaving no part unexplained-fearing less the imputation of undue mi- nuteness or superfluity than the more serious charge of passing superficially over the topics of discussion.
Sometimes in his anonymous writings there was the crisp denunciation and terse sarcasm of Junius ; the close and frigid philosophy of Calhoun ; and then the polished rebuke of Addison ; and thus the public were often left in doubt as to the real paternity of his many productions.
After the declaration of war Mr. Spencer continued to wield his pen and exert his influence in urging the people to a vigorous support of the government ; but, at length, he too was attracted to the field. In the autumn of 1813 he accepted the position of judge- advocate on the staff of Major-General McClure, and with that officer moved to the seat of war on the northern frontier. The staff of General McClure was composed of young men who subsequently attained much eminence, professionally and politically, in the State. John C. Spencer was judge-advocate, as we have seen ; William B. Rochester, afterward a circuit judge, and a politician, who in 1825 disputed with De Witt Clinton for the gubernatorial chair of the State, with such chances of success that he was defeated by a very small majority, was aid; Daniel Cruger, in after times a leading lawyer in western New York, speaker of the Assembly, and representative in Con- gress, was quartermaster ; John F. Bacon, subse- quently for many years clerk of the Senate, was pay- master ; and Doctor James Faulkner, afterward mem- ber of Assembly, judge of Livingston county, and
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State senator, was surgeon. Doctor Faulkner is the only surviving member of General McClure's military family, and is a resident of Dansville, New York.
After continuing in the service six months, Mr. Spencer was appointed United States assessor, and in accepting this office he was compelled to tender his resignation. Returning home, he entered upon the discharge of the new and responsible duties thus im- posed upon him. The office of assessor was created under the act of Congress passed March, 1813, which provided for a direct tax to aid in the prosecution of the war. It was exceedingly odious to the opponents of Mr. Madison, and was anathematized by them as the first steps toward the establishment of a despotic government. It required great firmness and legal ex- actness to carry this law into effect, but it was fear- lessly and accurately carried out by Mr. Spencer.
In February, 1815, he was appointed by Mr. Tomp- kins district-attorney for the five western counties of the State. In making this appointment the governor, while he in some measure rewarded a faithful and influential friend, recognized the great legal ability of that friend. It was, however, a position of great responsibility and labor. It compelled Mr. Spencer to attend the criminal courts of distant counties, and thus to perform long and tedious journeys on horse- back, over roads which were but a slight improve- ment on the old Indian trails which then intersected the country. But he was adventurous, and at that age when ambition has no bounds, and he entered upon the discharge of his duties with great alacrity.
It is related that, soon after his appointment, while on his way to attend a term of the oyer and terminer at Batavia, night overtook him when within ten or twelve miles of that village, and he was compelled to remain all night at a hotel. During the evening, while seated by the fire which blazed on the large, old-fashioned hearth, two travelers entered and asked for lodging during the night. Matters were soon
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arranged between them and the host, and they too found a place by the cheerful fire. In a few moments they fell into conversation, from which Mr. Spencer soon learned that they had been indicted for burning a building ; were "out on bail," and now on their way to Batavia, where they were to be tried at the en- suing court. .
They made no concealment of their peculiar situa- tion, and continued to converse in a tone which was audible to all in the room. At length one of them, whose name was Benson, remarked that a new dis- trict-attorney had been appointed.
"I can't tell what turn our case will take now; Wisner, the old one, was inclined to give us a chance for our lives. Going to be at court this week, sir ?" he asked, turning abruptly to Mr. Spencer.
" Yes," was the reply.
" Are you acquainted pretty generally with law- yers about this country ?" asked Ford, the companion of Benson.
"I know some of them," said Spencer.
"Do you know the name of this new district-at- torney ?" asked Ford.
" Yes ; his name is Spencer."
"What! not the Spencer that lives at Canan- daigua, I hope," said Benson, his eyes dilating with the interest he felt in the question.
"Yes, sir ; I think it is the same man."
"Good God ! is it possible ? Why, I had rather fall into the hands of an Algerine than into his."
"Why so; will he do anything more than his duty, do you think ?" asked Spencer.
"Do anything more than his duty ! Why, good gracious ! from all the accounts I have heard of him, he is a regular Philistine, as sour as vinegar, but as smart as steel. He will go all lengths to send a fellow to State's prison, right or wrong; and then he'll go along with him to see that the key is safely turned on the poor fellow," said Ford.
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"Well, well, this is tough enough, tough enough, to be tried for arson, with John C. Spencer against us. Come, Ford, let us go to bed, though I shan't sleep much ; and when I do, I shall dream that this Spencer is after me in full chase," said Benson, as he was leav- ing the room.
During the afternoon of the next day, while Ben- son and Ford were seated in the court room, Mr. Spencer came in and took a chair among the lawyers in the bar.
"There," whispered Ford to his companion ; "there is the man we talked with last night at the tavern, and he is a lawyer, you see. I thought he was, all the time, and I'll bet he is a good one, too."
"So will I," said Benson; "and that tall, spare form and thin face shows that he has got a great, ac- tive mass of brains, and that his mind is too strong and active for his body. I wonder who he is ?"
Just then Mr. Spencer arose to discuss some ques- tion in a civil matter in which he had been re- tained after his arrival at Batavia, and, as usual, he made an impression upon all in the room.
"There ; what did I tell you," said Benson to his companion when the speaker had closed ; " he is what you call able and strong, and I am going to have him help our lawyer defend us."
In a short time the business in which Mr. Spencer was engaged being disposed of, he left the bar for the purpose of going to his room below. Benson and his friend followed him into the hall. The former, touch- ing Spencer on the shoulder, said :
"We would like to talk with you a little. Don't you remember us? We were at the hotel with you last night."
"Yes, I remember. What do you wish to say to me ?" asked Mr. Spencer.
" Why, you know that we are indicted for burning a building ; and as our trial is soon to take place, we 21
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thought we would like to have you assist our lawyer in defending us," said Benson.
"I do not think you want me to defend you."
"Why not ?" asked one of them.
" Because I think you do not like my name."
"We don't know nor care what your name is. We like your appearance, and believe you are a dead match for that devilish Spencer that is against us," said Ford.
"Well, we will see ; my name is John Spencer."
"Heavens and earth !" exlaimed Ford, recoiling from him in terror, while Benson remained perfectly speechless with fright.
"You see, gentlemen, that my name is not ex- actly pleasing to you, and our business is doubtless at an end," said Mr. Spencer, preparing to leave them.
"For Heaven's sake, Mr. Spencer," said Ford, "excuse us for our plain talk to you, and-and, don't-don't bear any harder upon us for it, for we -we are not guilty, we"-
"Enough of this," said Spencer, interrupting him. "I shall do my duty, and nothing more ; what you have said will make no difference whatever ; one thing, however, I will promise not to do-I will not go with you to the State's prison, just to see that the key is safely turned upon you." With this re- mark he left them. The next morning their trial commenced, but such was the nature of the evidence that the district-attorney himself was convinced that they were not guilty, and consented that a verdict to that effect might be entered, and they were fully discharged.
In the year 1816, while Mr. Spencer was dis- charging the duties of district-attorney, he was elected a representative in Congress from the 21st congressional district of this State, by the Clintonian party.
For several years there existed an order of the
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Tammany Society in the city of New York, whose badge of distinction was a portion of the tail of a deer, worn in their hats. These persons were distin- guished for their high social and political position, their eminent abilities, and their hatred to Mr. Clin- ton. From this order a powerful combination origi- nated, known in history as the Bucktail party. Absorbing all the elements which rivalry, jealousy, and antagonistic ambition had rendered hostile to him, it soon aspired to the control of the State, and its aspirations were at times realized.
The war which it waged against De Witt Clinton has seldom been equaled in the annals of political history ; it exhibited all the intolerance of party strife, and the facility with which parties in our country are created. An eminent French writer has said that "In the United States there is no religions animosity, because all religion is respected, and no sect is predominant ; there is no jealousy of rank, because the people is everything, and none can con- test its authority ; there is no public misery to serve as a means of agitation, because the physical position of the country opens so wide a field to industry that man is enabled to accomplish the most surprising undertakings on his own native resources. Never- theless, ambitious men are interested in the creation of parties, since it is difficult to eject a person from authority upon the mere ground that his place is coveted by others. The skill of the actors in the political world lies, therefore, in the art of creating parties. A political aspirant in the United States begins by discriminating his own interest, and by cal- culating upon those interests which may be collected around and amalgamated with it; he then contrives to discover some doctrine or principle which may suit the purpose of this new association, and he adopts it in order to bring out his party, and to se- cure its popularity."
The popularity of Mr. Clinton had placed him in
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the way of many ambitious men, and, since it was difficult to eject him from place, a party was created for that purpose. Nothing, however, so surely indi- cates his great popularity as the strong combinations created for his overthrow, and the singular power with which he so successfully resisted these combina- tions.
In the contest between the Clintonian and Buck- tail party, Mr. Spencer espoused the cause of the former ; his name and career is thus so blended with that of De Witt Clinton that it is impossible to con- sider one apart from the other. The former aided in electing Governor Tompkins vice-president of the United States, while occupying the executive chair of the State ; and he sanctioned the policy which placed John Taylor in the chair made vacant by the election of Mr. Tompkins to the vice-presidency.
Notwithstanding the existence of the Bucktail party, the friends of Mr. Clinton nominated him for governor in the fall of 1816; and, as we have seen, Mr. Spencer received the nomination for member of Congress. They were both elected. In the year 1819, while yet in Congress, the Clintonian members of the Legislature nominated Mr. Spencer for United States Senator from this State. Colonel Samuel Young and Rufus King were his opponents. He received sixty- four votes ; Colonel Young fifty-seven. The re- maining votes were cast for Mr. King, who was elected. The strength which Mr. Spencer exhibited in this contest shows the political popularity which, at that early period of his life, he had attained.
Although one of the youngest members of the House, being only twenty-eight years of age, he occu- pied a conspicuous position, and was soon regarded as the leader of New York representatives in Con- gress. In the autumn succeeding the senatorial struggle, while yet in Congress, he was nominated and elected to the Assembly. On the fourth day of
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January, 1820, he took his seat in the State Legis- lature.
As soon as the Assembly was convened, Mr. Spencer's name was announced as a candidate for speaker. By the joint strength of the Clintonians and Federalists, he was elected. His address deliv- ered to the Assembly on assuming the speaker's chair was impressive, firm, and statesmanlike. In the dis- charge of his duties as presiding officer of a body composed of such eminent men as was the New York Legislature at this time, he occupied a difficult and delicate position. Slenderly provided with those flexible and plastic qualities which constitute the consummate politician, yet, as a presiding officer, he commanded respect, and even admiration. He pos- sessed much of the self-possessed gravity of Calhoun, with more natural suavity than the great Carolinian, whom he resembled in many points of character. "Like the southerner, he was capable, ambitious, indomitable, free from personal vices ; deficient, too, like him, in the plastic and congenial qualities that attach followers to party leaders. The versatility of position that marked the career of both was not the result of flexibility of purpose or vacillation of opin- ion in either ; but of powerful ambition, wielding in- tellect as a weapon, and opening for itself a career wherever it chose."
It is easy to see that these features in his char- acter, combined with certain family influences, caused him to adopt that course which, in the Leg- islature of 1820, rendered him the leader of the Clin- tonian and Federal parties.
At this session of the Legislature an opportunity presented itself for Mr. Spencer to do an act of friend- ship for Governor Tompkins, and he promptly availed himself of it.
During the war of 1812, large sums of money, amounting to several millions, funds of the general government, passed through the hands of the gover-
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nor. In the adjustment of his account the action of the State Legislature was invoked. As the governor demanded a commission on the money disbursed by him, a committee, appointed by the Legislature, awarded it to him, directing it to be paid on the order of Archibald McIntyre, then comptroller. But a dis- pute arising between the governor and Mr. McIntyre, as to the construction of the resolution recommended by the committee, another resolution was introduced into the Assembly, sustaining the comptroller's man- ner of auditing the amount.
The introduction of this resolution elicited a de- bate of an exciting and deeply interesting character. It was the great debate of the session. Mr. Spencer, Elisha Williams, General Root, Messrs. Irving and Romaine, of New York city, participated in it. Mr. Spencer strongly favored the law or resolution as Mr. Tompkins construed it, and supported his position in a speech which greatly enhanced his reputation as a legislative debater. He was warmly supported by Elisha Williams, and as strongly opposed by General Root.
At this period, perhaps no men in the State occu- pied a higher position than Messrs. Williams and Root. The former was one of the ablest lawyers and accomplished speakers then at the bar of the State. So extensive was his reputation that he was frequently retained in trials which occurred in distant counties ; and he was now engaged in the city of New York, now in Albany, now in western and now in southern New York. As a lawyer, it is not invidious to say of him that, though surrounded by eminent advocates and civilians, he had few, if any, superiors. As a legislator, the records of the Assembly are the best evidence of his ability. As an indication of his popu- larity, he represented the county of Columbia in the Legislature eight years, nearly in succession. Nor is this all. After his removal to Albany, the citizens of Columbia county testified their confidence in his in-
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tegrity and ability by electing him as their represent- ative in the constitutional convention of 1821-a mark of public favor seldom equaled.
As the biography of General Root appears in another part of this work, it is sufficient to say here, that, in many respects, he was the peer of Elisha Williams.
Mr. Irving was for many years an eminent judge of the New York Court of Common Pleas. To him the State is indebted for the law abolishing judgments for full costs in actions for assault and battery, slan- der, &c., where nominal damages only were recovered. No matter how frivolous the case, how trivial the of- fense, in such cases a verdict for six cents insured a recovery of a heavy bill of costs, and hence, the courts in the State were incumbered with a vast amount of petty actions, brought solely for costs.
Judge Irving called the attention of Governor Clin- ton to this abuse, in an elaborate and ably written memorial, which, on the 10th of February, 1828, was embodied in a special message by the governor, and sent to the Legislature, then in session, and the obnox- ious law was repealed. There is another and deeper interest attached to this message; it was the last offi- cial act of De Witt Clinton ; he died the next morning after sending it to the Legislature.
Samuel B. Romaine was a distinguished member from the city of New York, and subsequently speaker of the Assembly.
Such were the men who participated with Mr. Spen- cer in the great debate concerning the matters of Gov- ernor Tompkins ; his position was in the end fully sustained, and his demand for percentage allowed. It was natural that a question containing so many ele- ments of conflicting interest, invested with so many recollections of the recent war, debated by men of such eminent ability, should be memorable in the legislative history of the State.
The legislature of 1820 is characterized for the sin-
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gular and bitter party dissensions which divided it. Mr. Spencer, as the leading Clintonian, by his abil- ities, his influence, his energetic vigor as a partisan, incurred the hatred of Mr. Clinton's enemies to such an extent, that when the time for adjournment ap- proached, they refused to concur in the usual vote of thanks given to the speaker at such times, and the session closed in a storm.
In the autumn of 1820. the enemies of Governor Clinton triumphed in the State, and a Legislature was elected decidedly hostile to him. But John C. Spen- cer was re-elected ; and in him Clinton had a power- ful champion. An extra session of the Legislature convened in November for the purpose of choosing presidential electors. Mr. Spencer was again a can- didate for speaker at the session of 1821, but as his friends were largely in the minority he was of course defeated.
But, as the acknowledged leader of the Clintonians in the Assembly, he occupied a no less distinguished position. With his large experience as a legislator he often baffled the majority against him, and gained such decisive advantages in those party contests which occurred in the House, that the foundation for the future triumph of his chief was successfully laid. In the bill for the proposed constitutional convention each party saw the germ of future political suprem- acy, and the struggle was thus intensified. In the debates on this question all the energies of Mr. Spen- cer's mind were roused, and his intellect never at- tained higher triumphs than in his replies to his an- tagonists.
The legislature of New York at this time was graced by men of unusual brilliancy and power. There were then heard the speeches of Gulian C. Ver- planck, containing a union of subtlety and grace, of philosophic depth and literary excellence; the florid eloquence of Erastus Root, mingling sagacious and profound principles of constitutional liberty, the in-
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herent rights of the people, with the policy of a Rich- elieu, in a strain of oratory, which flowed naturally, sometimes gracefully, interrupted occasionally by an exaggeration of passion, which exhibited his zeal; the attractive oratory of Elisha Williams, glowing with the strength of his illustrations, the felicity of his expressions, occasionally abounding with an ex- cess of ornament, but replete with reason, which guided and enlightened ; and the keen sarcasm, the terse, severe diction of Spencer, in which no redund- ant word or fanciful expression was permitted, who redeemed the abstruse subjects which he discussed by a union of subtlety and grace, and with the utter- ances of a mind glowing with thought and research.
After a long contest and various party maneuvers, the bill for the convention passed both branches of the Legislature, and became a law. But, through the management of the Clintonian leaders, it passed in a form that, notwithstanding the great majority against them, they gained as much, if not more, political power than the dominant party.
In due time the convention assembled. It was composed of the ablest and most distinguished men in the State ; perhaps, in point of real ability, varied learning, and patriotism, the convention of 1821 has never been equaled by any deliberative body in the State. Its deliberations and proceedings now make a part of history, and most of its actors have left the scenes of earth. How many schemes of ambition and wealth ; how many full-blown hopes of power and place ; how much transient distinction and ephemeral elevation ; how much bartering of all that is lofty and pure for some "bad eminence," has that Assembly chamber witnessed since that convention assembled there ? And like scenes are to follow; crowds, im- pelled by the same ambition-the same schemes-will press on to their destiny-to success and failure-to forgetfulness and oblivion.
After the adjournment of the Legislature of 1821,
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Mr. Spencer returned to the practice of his profession, which had now become so extensive that he was com- pelled to devote his entire attention to it. The reports of the Supreme Court and the Court for the Correction of Errors, through a long series of years, exhibit the large number of cases conducted by him in them. And as they are the expression of extensive legal learning, and involve the consideration of almost every question, which, during that period, was settled by these courts, their examination would be profitable to the legal student.
Mr. Spencer continued steadily devoted to his pro- fession, until the events of 1824 again called him be- fore the people. When the Legislature of that year was on the point of adjournment, a resolution came down from the Senate to the House dismissing Mr. Clinton from the office of canal commissioner. This resolution was promptly passed by the Assembly. As there was no pretense that Mr. Clinton had failed to discharge his duty with fidelity and ability, his dis- missal was regarded as a high-handed act of party malevolence; but the act intended to annihilate him was the talisman which restored him again to power. It created the most intense excitement and indignation throughout the State. An immense meeting was held at Albany, at which resolutions of great strength and power denouncing the removal, were unanimously passed.
These resolutions were drawn by Hon. Alfred Conkling, now of Geneseo, N. Y., father of Senator Conkling, then a young but distinguished lawyer, and an intimate friend of Governor Clinton.
He was subsequently appointed by President Adams district judge for the northern district of New York. This appointment was made on the recom- mendation of Mr. Clinton, then governor of the State, General Van Rensselaer, and other eminent citizens. While in Congress in 1822 and '23, Judge Conkling made the acquaintance of Mr. Adams ; a
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