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 36

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 36


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The kindness and generosity of Mr. Marvin over- came all acquisitiveness, rendering him extremely loose in his financial affairs. During a portion of his life, he paid but little attention to his pecuniary


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engagements, forgetting them in the demands which his profession or the cares of office made upon him.


The late Mark H. Sibley, who always held Mr. Marvin in high esteem, used to relate an amusing incident illustrative of this feature in his character.


"On one occasion," said Mr. Sibley, "at a time when he was much embarrassed in his money mat- ters, he came to me with a note against a man residing in one of the western counties, which amounted to five or six hundred dollars, and which had several months to run before it would become due, desiring me to take the note and advance him the money upon it. Believing the maker to be responsible, I did so. Some time after the note came to maturity, I wrote to the payor requesting payment; he replied by pleading the pressure of the times, and requesting some further time for payment. Time passed on, and payment continued to be delayed.


" At length, learning that Marvin was about to visit the place where the maker resided, on profes- sional business, I called upon him, and requested him to take my note and collect it for me, which he readily consented to do. Amid the multiplicity of my professional engagements, the matter nearly passed out of my mind. One day, however, I met Mr. Marvin, and it occurred to me.


"'General,' said I, 'what about the note against Emerson ? How did you succeed with it ?'


"'O, admirably ; admirably. I saved the debt for you, Mr. Sibley, and it's all right.'


"' I am glad to hear you say so. Where are the funds ?' I asked.


"' Why, I took the money, and used it as occa- sion required,' was the reply.


"' Yes, General, I see. But you do not call that securing my debt, do you ?'


"' Why, certainly.'


"' In what way ?' I inquired.


"'By changing securities, to be sure. You hold


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me now for the demand, instead of the maker of that note, and I think I am entitled to considerable credit for the manner in which I managed that matter for you. When you have more debts of the kind to col- lect, I will cheerfully aid you to the extent of my ability,' said he.


"The sincere and business-like manner in which he said this, was perfectly amusing to me; and al- though, from the general's circumstances just then, my security was not the most satisfactory, I replied to him :


" ' General Marvin, you are a most excellent finan- cier-I think you are improving-but allow me to in- quire to what length of time the new security extends the payment ?'


"'O, indefinitely, indefinitely, Mr. Sibley, with usual interest.'


" More prosperous times in his affairs came round at last, and my debt, principal and interest, was fully paid, for he was an honest, high-souled man."


Dudley Marvin was always highly esteemed by his professional brethren, and by the judiciary throughout the State. Whenever he arose to address the court or jury, he commanded the most profound attention. Always dignified and composed ; always master of himself and his case.


He died at Ripley, in June, 1856, in the 71st year of his age. The intelligence of his death was an- nounced in the various courts, and by the press of the State, in language that exhibited the high position which he held in the mind of the public.


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ALBERT H. TRACY.


His Character among the Lawyers and Legislators of his day .- The Condition of Affairs when he entered Public Life .- His Endowments .- His Father a Distin- guished Physician .- Albert Commences Study of Medicine with him .- Removes to Madison, New York .- Discontinues the Study of Medicine and Commences the Study of Law with his brother, Honorable Phineas L. Tracy .- Removes to Batavia, New York .- Is admitted to the Bar .- Removes to Buffalo and Com- mences Practice .- Two of his earliest cases described .- The Plea of Infancy .- Prospects of Defeat .- The Discovered Family Record .- Defeat Turned to Vic- tory .- The Condition of Politics during the first years of Tracy's Practice .- He is Elected to Represent his District in Congress .- Events of the Sixteenth Con- gress .- Contest over the Application of Missouri to become a State .- Mr. Tracy engages in it .- Henry R. Storrs .- Robert Monell .- Nathaniel Pitcher .- Mr. Tracy as a Speaker .- Sharp answer of Gerard .- Tracy's Speech on the Missouri Question .- Compromise of Mr. Holmes .- Admission of Missouri .- Mr. Tracy Re-elected to Congress .- Becomes a Friend of Martin Van Buren .- The Federal Party .- Van Buren as a Politician .- Tracy in the Social Circles of Washington .- Van Buren's Proposals to Tracy .- Governor Clinton offers to appoint him a Judge of the Supreme Court .- The Offer Rejected .- Is urged to become a Can- didate for United States Senator .- Reasons for Declining .- Tracy Elected to the State Senate by the Anti-Masons .- Great Victory of the Democrats in 1829 .- Tracy Sustains the Anti-Masons in the Senate .- Is aided next year by Seward, Maynard, Talmadge, and Cary .- Character of Trumbull Cary .- Tracy continues in the Senate eight years .- Character and number of the Legal Opinions written by him while a Member of the Court of Errors .- Retires from the State Senate .- Tracy a Candidate for United States Senator .- His high Claims for the Office .- The Whigs sustain N. P. Talmadge, a recent Democrat .- Talmadge Elected .- Tracy unites with the Democrats .- His Reasons .- Would have been Vice-Presi- dent instead of Tyler, had he remained with the Whigs .- General Harrison offered Tracy a place in his Cabinet .- Declines .- Returns to the Practice of his Profession .- Thomas C. Love .- Tracy Retires from the Bar .- His Life in Retire- ment .- His Love of Literature .- Tracy's Opinion of Bulwer as a Writer and Critic .- His Conversation with a Friend as to Bulwer's Remarks upon Young's Night Thoughts, Childe Harold, &c .- Tracy's Opinion of Scott as a Poet .- Tracy as a Conversationalist .- Opinions of Webster, Cass, and others, as to his Conversational Powers .- Tracy as a Critic .- Mr. Dorsheimer's Description of his Characteristics .- Tracy's Personal Appearance .- Failure of his Health .- His Death.


AMONG the eminent lawyers, as among the legis- lators of the active period of his day, Mr. Tracy occu- pies a place in the foremost rank. He entered the political field when very young, to contend with men


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of the highest capacity-with the great partizan lead- ers of that period, and so successful was he in the contest, that his own fame has been entwined with theirs. He entered public life, when partizan strife was peculiarly acrimonious, and he showed himself above the narrow spirit of the common politician. There was in his nature a calm philosophy which never forsook him in the sharpest controversies, which contributed greatly to protect his genius, imagination, taste, and sensibility from the dangerous influence of public station-a philosophy which threw a hue of poetry over politics, softened the asperities of his na- ture, and covered his faults.


His endowments were of a useful, and in a measure commanding character. He possessed sound sense, ready memory, and vast industry, a thorough ac- quaintance with business in its principles and detail, a thorough and perfect knowledge of the law, theoreti- cally as well as practically, while he understood poli- tics from participating in their details.


His mind was of a very high order, and in many respects original; he was never highly distinguished as a public speaker, yet in that capacity, he attained a respectable position. But his conversational powers were unsurpassed. In private conversation, his lan- guage-indeed his oratory, was graceful, natural- abounding in flowers of various hues mingled with the closest reasoning. So that his arguments-his nar- ratives, seemed spontaneously to clothe themselves in the most pointed terseness-and anon, in the most luminous statement, and then, in the most apt and felicitous antithesis. This rendered him a pleasing and valuable companion, and an ornament to the polished society in which he moved. His rare ability as a writer is evinced in the various documents, legal opinions, and other works, which he has left behind him.


Albert H. Tracy was born at Norwich, Connecticut, June 17th, 1793. His father was Doctor Philemon


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Tracy, one of the most distinguished physicians and surgeons of his day. It was his ardent desire that Albert should follow the profession of medicine and surgery ; accordingly, when he had completed his classical education, he commenced the study of medi- cine with his father, who spared no pains or expense in storing the mind of his son with a complete and perfect knowledge of all the learning of his profession. But when nearly fitted for his degree in medicine, he visited Madison, N. Y., where his brother, the present Hon. Phineas L. Tracy, then a practicing lawyer, resided.


Pleased with the country, and stimulated with the novelty of that then recently settled region, he deter- mined to make it his future home. The profession of medicine never quite suited the taste of young Tracy. Its dry and endless nomenclature,-the beautiful, but abstruse arrangement of bone, muscle, nerve, sinew, vein and artery, so attractive to many, gave little interest to him. The heart-stirring energy of forensic struggles, the philosophy, the reason, and the logic of the law, attracted him, and he determined to aban- don the profession of his father, and enter the legal profession. Accordingly, he immediately entered the office of his brother and commenced the study of law.


He remained at Madison a year or two, when his brother removed to Batavia and Albert accompanied him, where he completed his legal studies, and in May, 1815, he was admitted to the bar, and immedi- ately went to Buffalo, opened an office, and com- menced practice. Buffalo was then but the remnant of a thriving village, having been burned by the British during the war which had then just closed. When young Tracy first looked upon its desolate streets, it appeared as though the angel of destruction had passed over it. But it required no prophetic tongue to convince him that its desolation must soon give way to prosperity, wealth and commercial ac-


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tivity, and this determined him to make it his home for life.


His many amiable qualities, his sound practical good sense, his industry, and capacity, soon became known to the citizens of Buffalo, and in a short time he gained the reputaton of a prudent, sagacious coun- selor, a skillful and successful advocate. Such was his success, that when, at the end of three years, he visited Albany for the purpose of taking his degree as a counselor, he had acquired several thousand dollars in money earned by his profession.


One of the earliest cases which Mr. Tracy conduct- ed, was an action of ejectment for the recovery of a piece of land containing some seventy five-acres, situ- ated not far from the present site of the New York and Erie depot. The matters in dispute were all in- tricate questions of law and fact. It was tried in Buffalo, in the summer of 1816. In conducting this case, the young attorney exhibited such perfect famil- iarity with the laws of real estate, such skill in har- monizing and adjusting the evidence against him, that he not only carried the case but gained much dis- tinction as a real estate lawyer and advocate.


Another incident in his early practice is related of him, which exhibits his indomitable energy and per- severance. An action had been commenced against a young man residing at Hamburg, by his uncle, for the recovery of a large sum of money which he claimed was due on an alleged contract made between the uncle and nephew. Mr. Tracy was consulted by the defendant, and he soon satisfied himself that the claim made by the uncle was unjust and dishonest ; but as there seemed no way to avoid the contract, Mr. Tracy was on the point of advising his client that he had no available defense to the claim of the plaintiff, and that he must submit to a judgment, however ruinous it might be to him, when the lawyer accident- ally learned that at the time of making the alleged contract, the defendant was an infant under twenty-


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one years of age, lacking one month of his majority. Under these circumstances, Mr. Tracy felt justified in interposing the defense of infancy, and it was duly set up in the plea.


On the trial, the mother of the defendant testified that he was born on the 12th day of October, 1794. After the lady retired from the witness box, court ad- journed until the next morning, it being near night. During the evening, Mr. Tracy learned that the oppo- site party had several witnesses subpoenaed to prove that the mother was mistaken as to the year in which her son was born ; in fact, to prove that he was born on the 12th day of October, 1793, instead of 1794, as the mother had testified. This was an unexpected at- tack, and there seemed no escape from defeat.


After consulting with his client and his friends for some time, inquiring minutely into all the circum- stances of time and place, it suddenly occurred to the mother of his client that there was an old lady, a rela- tive of the family, who lived near her at the time of her son's birth, who had in her possession a family Bible containing an entry of the time it occurred, made in her own hand the very next day. It was now ten o'clock in the evening ; the old lady resided twenty-five miles from Buffalo ; if she could be pro- duced with her family record, the defendant would be saved from defeat. Accordingly, a subpæna was im- mediately prepared ; the defendant and a friend started for the residence of the witness.


Soon after the opening of court in the morning, he appeared in the court room with his witness, Bible in hand. Tracy examined it a moment. The record had every appearance of authenticity, being as venerable in appearance as was its owner ; and, what was still better, the old lady was exceedingly intelligent, clear and distinct in her recollection of facts. She was im- mediately placed upon the stand. She fully substan- tiated the validity of the record, the making of the entry, and the time when it was made ; in addition to


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which she testified to other circumstances which so strongly corroborated the testimony of the mother, that the defense became triumphant, notwithstanding the powerful attempt which the plaintiff made to overthrow it.


At no period in the history of the State has the collision of parties been more sharp and fierce than it was in the first year of Mr. Tracy's practice. It was the long-contested struggle between the Federal and Republican party, and he entered the contest an ar- dent partizan of the latter. His talents, his energy, his high reputation as a lawyer, gave him at once a commanding influence in the politics of the day, and, young as he was, he became the acknowledged leader of his party in his Congressional district, which at that time extended from Lake Erie to Cayuga Lake.


In the autumn of 1818 he received the nomination for representative in Congress from that district, al- though then but a trifle over twenty-four years of age. He was elected, and entered the National Legislature on the 6th day of December, 1819, at the opening of the sixteenth Congressional session.


During this session, the great contest engendered by the application of Missouri to become a State, agitated both branches of Congress, and shook the Re- public from center to circumference.


The fifteenth Congress reconvened on the 16th day of November, 1819, and Missouri immediately applied to that body to be admitted into the Union as a State, presenting a copy of her constitution, by which negro slavery was permitted. A scene of excitement fol- lowed, which at that period was unparalleled in the history of the nation. It was the first great collision between the North and the South. The Missouri bill with the slavery clause in it, was bitterly opposed by many of the northern members, particularly by General James Talmadge, from New York, who intro- duced a bill as an amendment, which provided, among other things, that the introduction of slavery


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or involuntary servitude, be prohibited in the State to be admitted, except for the punishment of crimes, &c. A portion of the bill passed the House, but a dis- agreement with the Senate occurred, and the bill for the admission of Missouri failed.


On the 6th day of December, following, the six- teenth Congress assembled, and the contest over the admission of Missouri as a slave State was renewed with increased bitterness. Mr. Clay was speaker of the House ; he was in no sense a friend to slavery, and yet he was in favor of admitting the Territory without any restriction as to slavery. The President, Mr. Monroe, though he acted with great discretion, favored the admission of Missouri with a slave consti- tution.


Among the representatives from New York in this Congress, were the late Henry R. Storrs, of Oneida, Rob- ert Monell, of Chenango, Nathaniel Pitcher and John W. Taylor, all of whom were eminent and distinguished lawyers. The members from New York, instructed by the Legislature, with one or two exceptions, stood firmly in favor of restriction. Mr. Tracy was one of the young- est members in the House, having barely arrived at the age when by the Constitution he could be admitted to a seat in it ; but in this contest he took an important, active, part. He did not aspire to become a wordy champion, an indefatigable Ajax of the wordy war- fare which was raging around him, and yet he occa- sionally occupied the attention of the House; but he did not speak for momentary effect; he labored to dispose of the great question in a manner which would vindicate the action of the House to posterity.


It was one of his maxims that "he who talks much in public, must often talk in vain." He often related the anecdote of the member of the Chamber of Depu- ties, who, after a very long and grandiloquent speech, asked Gerard what he thought of the As- sembly.


"I think," said Gerard, looking very gravely at


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the conceited member, "I think there are a great many fools among us."


The anxiety which so many men have to hear themselves talk in public, was once alluded to by a very sensible and well-educated member of the New York Assembly, in a letter to a friend, in the follow- ing manner :


" What can I do in the midst of a crowd of garrul- ous, conceited men, who believe themselves to be born great orators, and who, therefore, gabble on all ques- tions before the House, without understanding in the least what they talk about ?"


"Mr. Speaker," said Mr. Tracy, on one of the oc- casions on which he addressed the House, " my friend, Mr. Taylor, whom I may add, so ably and eloquently represents the State of New York, has said on this floor, that history will record the decision of this day as exerting an influence for centuries to come, over the population of half our continent; and sir, it has well been said by him, that if we reject this amend- ment, and suffer this evil to strike its roots so deep into the soil that it can never be removed, we shall furnish some apology for doubting our sincerity, when we say we deplore its existence. May I add, sir, that the words of the distinguished gentleman are pro- phetic, that we are called upon now to act with promptitude and decision upon this question ; that posterity will hold us responsible if we consent to entail this evil upon it; an evil which can only be eradicated hereafter by civil commotion and perhaps bloodshed. The distinguished member from Mary- land, Mr. Pinkney, admits that slavery engenders pride and insolence in him who commands, and in- flicts intellectual and moral degradation on him who serves, that it is abominable and unchristian. Then why should we not apply this restriction ? Why should we hesitate to prohibit such an institution in a State whose geographical position alone ought to ex- clude it ?"


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It may well be said that the words of Mr. Tracy, as well as those of Mr. Taylor, were indeed prophetic. The former lived to see the strife and dissension which characterized the admission of Missouri, repeated with accelerated force-to hear the prelude to that fearful storm of civil war which broke over the republic.


The contest over the admission of Missouri, con- tinued with unabated heat, until Mr. Thomas, from Illinois, introduced into the Senate the celebrated measure known as the Missouri Compromise, which was adopted by that body. When, however, it was first acted upon in the House, it was rejected by a vote of 159 yeas to 18 nays. The Senate refusing to recede from its amendment, and the House decisively insisting upon its disagreement, the Senate asked a conference, which request was acceded to. The committee of conference was so framed that it gave the Anti-Restrictionists a decided majority. Mr. Tracy was appointed on such committee, but he de- clined to act, and another member was appointed in in his place.


On the 20th of March, 1820, Mr. Holmes, from Massachusetts, reported from this committee that the Senate should surrender its combination of Missouri with Maine, and the House should abandon its attempt to restrict slavery in Missouri, and that both houses should concur in passing the bill to admit it as a State, with Mr. Thomas' restriction or proviso ex- cluding slavery from all territory north and west of the new State. And thus the great compromise measure of 1820 passed both branches of Congress. It was the great measure of the sixteenth Congress, and with its settlement the nation forgot the turmoil and dissension which it created, and moved forward in unsurpassed prosperity.


Mr. Tracy represented his district in Congress un- til the year 1824, when he declined a renomination. This was an interesting and peculiar period in the history of the nation. During most of this time


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Martin Van Buren and Rufus King were in the United States Senate from this State, while in the House the State was represented by men of the most distinguished ability.


The great Federal party-the party which was the exponent of the political theory of Hamilton-and, which, since the foundation of the government, had always been powerful, often victorious-had com- mitted the great error of opposing the late war with England.


The conduct of statesmen and legislators, even the very greatest, and those who are reputed the most successful, is so frequently at variance with the obvi- ous suggestion of common prudence, that they may well be deemed to have been guided by some strange fatality. Thus with the statesmen who opposed the war of 1812. As a matter of policy it was a fatal mis- take, and their party now stood on the very brink of dissolution, while the superstructure of the Demo- cratic party in this State was being laid by Martin Van Buren and his compeers, who were then calling around them those whose hatred to the Federal party was stimulated by the political doctrines and dogmas of Jefferson.


There have been very few men in the world, cer- tainly very few in our own country, who possessed the natural as well as the acquired political sagacity of Martin Van Buren. He understood the peculiar art of analyzing not only the external customs of men, but also of penetrating their deeper and more hidden interests. He had much of the subtle and as- tute policy of Richelieu, and, in the times of that great man, would perhaps have been equally success- ful. His career, though it closed in misfortune, evinces a consummate knowledge of human nature.


As a diplomatist and statesman his connexion with party, and his habits of viewing subjects in reference to party aggrandizement, too often caused the states- man to be lost in the mere politician. But this was a


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fault which he showed in common with other Ameri- can statesmen.


When Mr. Tracy first appeared at Washington, his refined taste, his elegant manners, and the charm of his conversation, rendered him welcome in its po- lite and refined circles. He at once took a high social position, while his devotion to all the details of his Congressional duties raised him to distinction as a legislator. Among those who were early attached to him was Martin Van Buren, then "the rising states- man of New York." It was his desire to induce Mr. Tracy to join the great party which was soon to con- trol the power of the nation. The judicious and pen- etrating statesman perceived that Mr. Tracy's abil- ities, his various research, his facility of expression, his energy of character, his many claims to popularity among the people, would be of importance to any po- litical party, and he was, therefore, not without selfish motives in cultivating the acquaintance of the young man. Though Mr. Tracy could not concur with Mr. Van Buren's political sentiments, yet there ever ex- isted a warm friendship between them.




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