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 32

Author: Proctor, L. B. (Lucien Brock), 1830-1900. cn
Publication date: 1870
Publisher: New York, Diossy & company
Number of Pages: 812


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 32


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On the trial of this case, one William Daniels was asked by the public prosecutor whether, on the 13th of September, 1826, he was at the house of Solomon H. Wright, in New Fane ? The witness declined to answer, on the ground that the answer might impli- cate him in the transaction. Mr. Spencer contended that, as the abduction took place in September, 1826, and the statute of limitations had attached, therefore, as the answer of the witness could not criminate him, he was bound to answer. The defense insisted that if the answer tended to the infamy of the witness, he


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was excused from answering. Judge Gardner decided that the witness was not compelled to answer, and to this ruling of the judge an exception was taken. The Supreme Court affirmed the decision of Judge Gard- ner on this question, declaring, through Judge Marcy, that where the direct answer to a question will dis- grace a witness and fix a stain of infamy upon his character, he is not bound to answer ; that it is not enough, however, for the witness to allege that his answer will have a tendency to expose him to dis- grace and infamy. The question must be such that the answer to it, which he may be required by the ob- ligation of his oath to give, will directly show his in- famy, and the court will see that such must be the case, before they will allow the excuse to prevail.


In considering the offense of accessories to a mur- der, before and after the fact, Judge Marcy said :


"The mysterious obscurity which hangs over the termination of this affair, justifies a well-founded sus- picion that Morgan came to an untimely end."


This case also decides what constitutes the crime of conspiracy, and who may be made co-conspirators -where the venue may be laid in the case of con- spiracy-what constitutes a challenge to a juror for principal cause-and what constitutes a proper chal- lenge as to favor-and the exclusion of jurors for an expression of an opinion-when the facts on which a challenge rests are disputed, what course to be taken.


Judge Marcy's comments upon leading questions would alone repay a perusal of the case. Upon these and many other questions, the comments of the judge are eminently learned and interesting.


As has been stated, the jury found a verdict of not guilty, and the indictment and other proceedings were brought into the Supreme Court by Mr. Spencer on a motion for a new trial, for errors in the charge of the judge ; but a new trial was denied, and the de- fendant fully acquitted.


Judge Marcy continued upon the bench until the


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4th of March, 1831, when he received the nomination for United States senator in a legislative caucus held on the evening of that day. To the great regret of the bar of the State, as well as his associate judges, he de- cided to accept the senatorship, and, therefore, re- signed the position of judge of the Supreme Court. With the opening of Congress in December, 1831, he entered the United States senate as one of its mem- bers. That his eminent abilities as a statesman were properly appreciated at Washington, is sufficiently shown by his being appointed chairman of the Ju- diciary Committee, a position which conferred upon him the highest honors, and, at the same time, great responsibilities.


Hardly had he taken his seat in the Senate, when Mr. Van Buren and his friends were attacked by Mr. Clay with that energy-that inimitable eloquence which always electrified those who listened to him. In the remarkable speech which he delivered on this subject, he charged Mr. Van Buren and his friends with being the first who brought party proscription into national politics. Van Buren was then minister to the court of St. James. Older and more expe- rienced senators, whose duty it was to defend the ab- sent minister, remained silent. William L. Marcy, however, was not the man to listen tamely to the at- tack on an absent friend. No matter who launched the thunderbolt, no matter how proud or lofty was the Senatorial record, nor how impressive the eloquence of him who made the attack, he boldly came to the rescue, and his maiden speech in the Senate was in answer to Henry Clay's aspersions upon Van Buren. The two speeches that he delivered on this occasion fully sustained the high reputation which had pre- ceded him to Washington. They were distinguished for great dignity, strength and singleness. Some portions of those speeches would compare with those of Burke, Pitt and Canning.


The next effort which Mr. Marcy made on the floor


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of the Senate was his celebrated answer to Mr. Web- ster's speech on the apportionment bill. It did much to elevate him in the estimation of his constituents, while it gained him the respect of his political oppo- nents.


One of the questions of that day was the tariff ; this claimed much of Mr. Marcy's attention, and although he has been represented as entertaining other views of it than those which would tend to the advantage of his party, yet no one can read his speeches on that question, delivered while in the Senate, without being impressed with the patriotic impulses which stimu- lated him.


He sustained General Jackson on the great ques- tion of the United States Bank, and voted against its re-charter. On account of his influence in New York, the veto message was strongly sustained by the people ; for no man in the State, at this time, had a stronger hold on the confidenci of the people than William L. Marcy.


When General Jackson vetoed the bill providing for the improvement of harbors and rivers, known as the Mayville veto, Mr. Marcy sustained him. Among the improvements which the bill provided for, was "the removal of obstructions from the Hudson river, near Albany." This measure was strongly urged by the people of Albany, his own particular friends, and, therefore, he had a direct personal in- terest in the passage of the bill ; but, as he believed its general features to be dangerous, he emancipated himself at once from all personal interest, and threw his influence against it-a sacrifice which at this period is never made.


In July, 1832, he accepted an invitation from the citizens of Harrisburgh to partake of a public dinner in that city. The occasion was one which will long be remembered. Public honors awaited him there, seldom tendered to any individual. In reply to a sentiment offered by a distinguished statesman of


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Pennsylvania, in alluding to the brilliant reception which had awaited him, he said :


"Deeply penetrated by the flattering sentiment which you have just uttered, and impressed with the marks of public favor which I have received since my arrival in your city, still I have not the vanity to sup- pose that they are intended for any other purpose than testifying the respect in which your citizens hold the great State which I have the honor to represent in the Senate of the United States. Through me the great Commonwealth of Pennsylvania speaks to the Empire State. If I should fail to be proud of my po- sition under these circumstances, I should justly be chargeable with that apathy which would render me unworthy to be the representative of that great State."


"Enos T. Throop was now governor of the State ; his official term was drawing to a close, and it was well understood that he declined a renomination. Judge Marcy was therefore already nominated for governor by the spontaneous voice of the people, and his nomi- nation by the Herkimer convention in the following September, was but a ratification of his popular nomi- nation."


At this period, political Anti-Masonry had arisen to a power in the State, which enabled it to contend with great confidence for supremacy over the Demo- cratic party. Its standard-bearers were Francis Granger and Samuel Stevens ; the former was nomi- nated for governor, and the latter for lieutenant-gov- ernor.


Many circumstances tended to render this canvass warm and exciting; prominent among the questions which entered into it, was that of the United States Bank. But the Democratic party were now on that tide of success which, through so many years, gave it victory ; and Mr. Marcy was elected. Resigning his seat in the Senate, he entered upon the discharge of his duties as governor. "His first message, as a literary


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production, called forth commendation from every quarter, as indeed, was anticipated by those who knew how powerful and practical was the pen he wielded. The financial policy of the State was, as it had been for several years, the great subject of inter- est, and it had a deserved prominence in the message." Liberal quotations from it were made by the press in all parts of the nation, and it commanded the respect of the statesman, the scholar, and the man of business.


The great questions of State policy that divided the public mind, and which fell within the purview of the executive, were met and disposed of with that native independence of character, that prompitude, decision, and ability which showed that he and no one else was governor.


So acceptable was his administration to the Demo- cratic party, that he was again its nominee in the can- vass of 1834. John Tracy, of Chenango, was nomi- nated for lieutenant-governor. Few men have been more popular with their party, few have enjoyed in a larger degree, the confidence and regard of the people, than Mr. Tracy. Through a long series of years, he was honored by many exalted and responsible posi- tions, and though a strong, uncompromising partizan, yet he passed through party collisions with such sin- gular moderation, such unwavering devotion to recti- tude of purpose, that he gained the esteem of political opponents as well as political friends.


Anti-Masonry had now become a thing of the past ; it had subserved its purpose ; it had brought forward names that were to live forever on the historic page ; and it was now merged in the Whig party-a party which, whatever were its perfections or imperfections, formed for itself a record bright with the names of illustrious statesmen, who, in sustaining it, enriched the annals of the nation with the loftiest patriotism- with all that is attractive in learning and all that is brilliant in eloquence and oratory.


Mr. Seward received the nomination for governor,


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and Silas M. Stillwell for lieutenant-governor, from the Whigs of New York, and they became the op- posing candidates to Messrs. Marcy and Tracy. The latter were again elected.


The governor's next message to the Legislature was characterized by the strong and urgent manner in which it recommended the enlargement of the Erie canal, which it denominated the backbone of the canal sys- tem of the State. He insisted that the enlargement should be carried on with sufficient rapidity to ex- haust the surplus revenues arising from the canal tolls. The Legislature, coinciding with these views, passed an act in conformity to them. The banking interest, which had now become a delicate and import- ant question, fraught with many difficulties, received the attention of the governor in this message. He dis- cussed the great question of the finances with the force, clearness and ability of a Huskisson. The State of New York-the Union itself-has furnished few if any men who understood and comprehended the financial questions of their day as thoroughly as did William L. Marcy and Silas Wright. Neither of them were distinguished for grace of oratory, though it can- not be said that they were not consummate debaters ; and the latter, although he generally confined his remarks to the questions of commerce and finance, always gained the attention of the Senate.


In the month of September, 1834, George Thomp- son, a distinguished abolition lecturer, landed in the city of New York from England. His mission was to aid in the establishment of those abolition societies which began to exhibit themselves during Mr. Marcy's second administration. The riots and disturbances which succeeded their establishment mark an un- usual era in the history of New York city. Thirty- two years passed away, and the principles which were contended for in those societies, and which then doomed all their members to the lawless vengeance of a mob, came to such importance that they rocked


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the nation from center to circumference, and amid fearful convulsions the institution of slavery fell to rise no more.


On the 4th of September, 1834, Mr. Marcy presided at an immense meeting, held at Albany, "attended by the most venerable and distinguished men of both po- litical parties," at which resolutions were adopted, de- claring that the movements of the abolitionists were incendiary and threatened to disturb the public peace, and therefore ought to be frowned upon by all sincere friends of the Union. What a change from 1834 to 1865 !


The speculating mania, which for several years had been increasing with unprecedented rapidity, had now reached its culminating point. Embarrassing as it was to his party, and to his administration, he grap- pled with all the questions growing out of the troubles, and led his party triumphantly through all difficulties, though his course lay between Scylla and Charybdis ; and his second administration closed in a blaze of popularity, which led to his third nomination in 1836, without a dissenting voice. Mr. Tracy again received the nomination for lieutenant-governor. The late Jesse Buell and Gamaliel H. Barstow were the oppo- sing candidates. The star of the Democratic party was still in the ascendant. Marcy and Tracy were again elected by an increased majority. This year, Martin Van Buren was elected president of the United States, and thus the early friends were now one of them the chief magistrate of the State, the other the chief magistrate of the United States.


With the administration of Mr. Van Buren, dark and threatening clouds began to lower around the Democratic party. The independent treasury ques- tion, which brought calamity upon that administra- tion, was shared by Mr. Marcy's, and his third official term closed amid an impending storm. But such was the unfaltering trust which the Democracy reposed in


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him that, in 1838, he was again put in nomination for governor.


The Whigs this year nominated Mr. Seward for governor, and Luther Bradish for lieutenant-governor. Again he was compelled to confront the coming man of the State, and he was doomed to defeat. Mr. Sew- ard and Bradish were elected by over ten thousand majority, and from that era the star of the former was in the ascendant. Gradually it led him from one degree of greatness to another, until, as the premier in the cabinet of Lincoln, during a civil war of unparal .. leled magnitude, he became known to the world as the most accomplished diplomatist of the age.


With the expiration of his term of office Governor Marcy retired to private life. He had filled the exec- utive chair of the State, six years in succession, with such distinguished ability, that he carried into retire- ment the respect of all parties. But his retirement was of short duration. Martin Van Buren could not be forgetful of one who had so powerfully aided in his advancement to a position which was hereafter to render his name memorable in history, and he ap- pointed him one of the commissioners to decide upon the claims against the government of Mexico under the Convention of 1839. This was a highly responsible position, compelling Mr. Marcy to reside at Washing- ton until his powers as commissioner expired, which event occurred in 1842. From that period his resi- dence was at Albany until the day of his death.


In September, 1843, he presided at the Democratic State Convention, held at Syracuse, for the purpose of choosing delegates to the National Convention, then soon to be held. His first choice for president was, of course, Martin Van Buren; but he gave a warm adherence to Mr. Polk, and used his influence in causing the State of New York to cast its vote for him.


At the State convention, called for nominating a


27


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State ticket, he strongly urged the name of Silas Wright for governor.


The election of 1844 terminated so disastrously to the Whig party, that many believed it would never again assemble its scattered hosts. James K. Polk, the president elect, some time previous to his assum- ing the presidential chair, signified his appreciation of Mr. Marcy's abilities by tendering him the position of secretary of war in his cabinet. He accepted the offer, and entered upon the discharge of the duties of his new position.


As has been well said, "a cabinet appointment is not often a position calculated to add to the reputa- tion of an individual who holds it, as its honors and responsibilities are shared among a number, or mo- nopolized by the head of the administration."


This may be so in times of profound peace, or where the cabinet officers possesses no more than medium abilities. But in turbulent times-in times when the energies and abilities are taxed to the utter- most, then the head of a responsible department, if he has the ability, must distinguish himself.


This was the case with Mr. Marcy as secretary of war. The Mexican war demanded a man of practical ability and sagacity, a statesman of experience and energy. Mr. Polk found in Governor Marcy all these requisites-found in him qualities which gave suc- cess to our arms and shed a luster on the administra- tion. The dispatches, orders, and instructions of which he was the author during that war, afford the most indubitable evidence of his accomplishments as a minister of state.


While secretary of war, he became involved in a controversy with Generals Scott and Taylor. These illustrious chieftains conceived the idea, that as they were opposed to him in politics, he naturally re- garded the brilliant fame which they were gaining, with jealousy, fearing that it would lead to the ad- vancement of the rival party ; and they publicly


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charged Mr. Marcy with using his official powers to embarrass and retard their military operations. So openly and persistently were these charges made, that he found it necessary to defend himself against them, and he replied with that dignity, force, and reason, which silenced all censure, and relieved him from the serious charges brought against him.


With the close of Mr. Polk's administration, he retired again to private life, where he remained through Mr. Fillmore's administration. The election of 1852 resulted in the triumph of the Democratic party, and the election of Franklin Pierce, president of the United States. This result again summoned William L. Marcy from his retreat, and he became premier of the new administration. With abilities enlarged and strengthened by varied and extensive experience as a statesman, he took his place at the head of Mr. Pierce's cabinet. Here he exer- cised all the powerful energies of his character, his profound knowledge of all diplomatic relations, and he became the rock of the new administration.


During the administration of Mr. Pierce, an event occurred which greatly distinguished Mr. Marcy as a diplomatist at home and abroad.


"On the 22nd day of June, 1853, Captain N. D. In- graham, in command of the United States sloop of war St. Louis, arrived at Smyrna, and while at anchor he was informed by the American consul that Martin Kosta, a Hungarian by birth, but entitled to the pro- tection of the United States, was a prisoner on board the Austrian brig of war Hussar, then lying near the St. Louis. Captain Ingraham immediately went on board the Hussar, had an interview with Kosta, and learned that he had resided a year and eleven months in New York, where he took the usual oath of allegiance to the United States, in July, 1852, and was in possession of a legalized copy of a declaration which he made of becoming an American citizen ; he had come to Smyrna on business, intending to return ;


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that on the 21st of June, while seated on the Marina, he was seized by a party of armed Greeks, employed by the Austrian consul general, thrust into a boat, and carried on board the Hussar, where he was held in close confinement. Captain Ingraham imme- diately addressed a note on the subject to Mr. Brown, charge d'affaires of the United States, at Constanti- nople, who officially expressed the opinion that the discharge of Kosta should be demanded.


" Captain Ingraham accordingly, on the 2nd day of July, at eight o'clock, A. M., demanded of the Aus- trian commander, the release of Kosta by four o'clock P. M., declaring that he would otherwise take him by force. At this time a steamer was lying near the Hussar, ready to convey the prisoner to Trieste. At eleven o'clock, the Austrian consul general proposed, under protest, to deliver Kosta to the French consul, subject to the disposition of the consuls of the United States and Austria, and not to be delivered without their joint order; in the agreement drawn up, the ministers of the United States and Austria, the con- suls of the two powers, were to give the assent to the delivery of Kosta. As this proposition was a sufficient assurance of the personal safety of Kosta, Captain Ingraham accepted it, and the Hungarian was soon set at liberty and returned to the United States."


This affair caused great sensation in Europe and in America. The Austrian government deemed it a high- handed and unwarranted act on the part of Captain Ingraham, and a correspondence on the subject en- sued between Mr. Hulsmann, charge d'affaires of Austria, and Mr. Marcy, in which the matter was elab orately discussed. This correspondence was eagerly read throughout the civilized world. The questions involved were in a measure new, and more or less affected all governments who recognized the laws of nations. It proved Mr. Marcy an accomplished statesman and diplomatic correspondent.


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The conduct of Captain Ingraham was fully sus- tained and approved by the United States govern- ment, and in August, 1854, Congress voted him a gold medal.


In March, 1857, at the close of Mr. Pierce's admin- istration, Mr. Marcy again retired to private life, never again to be oppressed with the cares of state or bur- dened with official duties. He now entered upon a life congenial to his taste and his age, and for which he had long been anxious to resign the cares of office, and all that worldly ambition can give. With books -with his chosen companions, in the pleasures of in- tellectual conversation, his days passed pleasantly by. Mr. Marcy was a lover of the great poets of England. Among these his particular favorites were Thomson, Cowper and Gray. His imagination was captivated by the former. His heart inclined him to the kind and benevolent emotions which flow so copiously from the poems of Cowper ; the touching tenderness and beau- tiful sentiment of Gray were always pleasing to him ; and his splendid, truthful and lively Elegy was a life- long companion for him. These authors relieved and refreshed his mind amid the cares of state. They ren- dered his retirement bright and flowery, shedding upon it the "ethereal mildness" which caused his days to pass in tranquillity and peace.


On the 4th of August, 1857, Mr. Marcy retired to his library as usual. An hour and a half passed away, when a friend called to see him. He was di- rected to the library, where, as a sort of privileged person, this friend often conversed with the statesman. He knocked at the door. Receiving no answer, he presumed upon his privilege and entered. Mr. Marcy lay apparently asleep upon a sofa, with a book open and turned down upon his breast. His features were calm and peaceful ; but a second look revealed some- thing unnatural in the general appearance of the face. He approached nearer, laid his hand upon his fore- head, and he felt the cold, clammy presence of death.


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The form-all that was left of William L. Marcy-was before him, but the spirit had fled.


There, in the silence of his study, without a strug- gle, he calmly left the world. On removing the book from his breast, it proved to be his favorite poem, the Elegy of Gray-that poem, which, in departed years, had been his solace and delight, was the last object on which his eyes rested ere they closed forever. Thus, four months to a day, from the time he retired from the cares of state, he died.


All who knew him concur in one uniform testi- mony to the purity of his morals, the sobriety and temperance of his habits, and the generous warmth and tenderness of his affections. With no habits of luxurious expense or ostentation, and addicted nei- ther to the pleasures of the table or fashionable amuse- ment, his home was the scene of happiness, often in- terrupted by his various offices, yet still he had a home wherever he was, for he was admirably fitted for domestic life.


"Governor Marcy was twice married. His first wife was Miss Newell, a descendant of one of the early settlers of Sturbridge ; his second wife was a daughter of the late Benjamin Knower, formerly treasurer of the State ; and for a long time one of the most active and influential politicians belonging to the Democratic party in the city of Albany.




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