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 37

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 37


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Governor Clinton, who duly appreciated the ju- dicial abilities of Mr. Tracy, signified his desire to ap- point him a justice of the Supreme Court, to fill a va- cancy which would occur in the event of his accepting the appointment ; but he declined the position for reasons which were entirely satisfactory to the gov- ernor.


In December, 1825, Mr. Tracy was urged by his friends to become a candidate for the office of United States senator in place of Rufus King, whose term in the Senate was about to expire. He at first yielded, but on learning that his friend Van Buren was to be the opposing candidate, he declined.


In the autumn of 1829, Mr. Tracy was nominated by the Anti-Masonry of the eighth Senatorial district, for State senator. This was a peculiar period in the political history of the State. Anti-Masonry, under


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the lead of such men as William H. Seward, Fred- erick Whittlesey, Thurlow Weed, Albert H. Tracy, Trumbull Cary, Thomas C. Love, George W. Patter- son, John Young, William H. Maynard, and many others, had assumed the dimensions of a powerful party in the State, especially in the western counties. As was said by another, during the existence of the Anti-Masonic party, "the tenacity of purpose which marked the Anti-Masonic counties, seem to indicate a reliable steadiness which it was almost hopeless for their opponents to attempt to change."


The fall of 1829 saw the Democratic party vic- torious throughout the State. In all the Senatorial districts except Mr. Tracy's, Democratic senators were elected ; while of the one hundred and twenty- eight members of Assembly then elected in the State, one hundred and four were Democratic. Mr. Tracy entered the Senate with his party greatly' in the minority, but his long experience in Congress, and his unquestioned ability, gave him a high position in that body, and he continued to uphold there, the for- tunes of his party against the most overwhelming opposition. When the next session opened, he found himself surrounded by many political friends, some of whom were the ablest men in the State. He was cheered and sustained by William H. Seward, Wil- liam H. Maynard, Trumbull Cary, Nathaniel P.


Talmadge, and others. Messrs. Seward and May- nard have frequently been mentioned in other parts of this work. It is proper to add that Mr. Cary was a distinguished and successful merchant of Batavia, who for many years occupied a prominent position in the politics of the State. He was a gentleman in the true acceptation of the term, a business man of great energy and ability, fortunate in all the enter- prises of his life ; he retired many years before his death, from public life and from business, enjoying in dignified tranquillity the fruits of his well earned success. He represented the county of Genesee with


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much ability in the Legislature of 1828, and he entered the Senate of the State in 1830, to occupy a highly respectable and responsible position. He died in the year 1869, at Batavia, at an advanced age, greatly respected and much lamented.


While Albert H. Tracy was a member of the Sen- ate, that body constituted the court for the Correction of Errors-the court of dernier resort of the State. He remained in the Senate eight years, and was re- garded as one of its most distinguished members. Though he often took a part in the debates which occurred through that exciting period,-though he introduced many bills which subsequently became laws, he won his chief distinction by the learned and elaborate opinions which he wrote as a member of the Court for the Correction of Errors.


During his Senatorial career, he wrote no less than one hundred and fifty legal opinions ; most of them were published, and will be found in the legal reports of the State, from the ninth to the sixteenth of Wen- dell, with those of Chancellor Walworth, Chief Justices Savage and Nelson, and Senators Seward, Maynard, Foster, Benton, Talmadge, Todd, Edmonds, Birdsell, and other distinguished senators of the State.


These opinions of Senator Tracy have been greatly admired and held in high esteem by the legal profes- sion for their severe logical acumen, their legal learn- ing, their forcible and elegant style of judicial argu- ment.


In the case of the Delaware and Hudson Canal Company v. Dubois, reported in 15 Wend., 106, Lieutenant-Governor John Tracy, Chancellor Wal- worth, and several senators prepared elaborate and strongly written opinions; to which Senator Tracy felt compelled to dissent. His dissenting opinion is written with such unquestioned modesty, with such marked ability, that the legal student and practitioner is struck with its learning and power.


In the case of Hawley v. James, 16 Wend., 92,


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after the great and powerful argument of John C. Spencer, Mr. Tracy wrote an opinion which exhibits how thoroughly and perfectly he understood all the difficult and intricate questions involved in the case.


The opinions written by him in the cases of Allen v. Addington, 11 Wend., 374; Coster v. Lorillard, 14 Wend., 278 ; and the People v. Haynes, 14 Wend., 564, have been the subject of much interest to the legal profession, and to the judiciary of this and other States. While these opinions enrich the learning of the legal profession, there is no parade of learning, no unseemly pride of opinion. They exhibit profound research and thought, they abound in frequent quota- tions from ancient and modern authorities and pre- cedent, yet there is no pedantic display of precedent or argument. For Mr. Tracy well knew that argument from precedent alone, is, in general, the weakest and the most tedious of all arguments. It often dazzles and overawes instead of enlightening and instructing.


It has been said by those who knew him best, that he himself never regarded these opinions with any particular favor, certainly not with any vanity.


After retiring from the Senate, he never again held any official position. As has been said by another, "In 1839, Mr. Tracy was a candidate for the United States Senate, a distinction which he greatly desired. Mr. N. P. Talmadge was his opponent for the party nomination. This gentleman was then in the Senate, to which he had been elected by the Democrats. He had separated from his party upon the financial ques- tions then before the country, and motives of policy induced the Whig members of the Legislature to pre- fer him to Mr. Tracy, who had been generally looked upon as the choice of his party. Soon after this event, Mr. Tracy ceased to act with the Whigs. His disappointment at failing to secure the senatorship is supposed to have alienated him from his political associates." Notwithstanding the dis- tinguished writer from whom the above is quoted has


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given other reasons than disappointed ambition for Mr. Tracy's alienation from the Whig party, yet, as in those days, ambition was one of Mr. Tracy's faults, it may well be supposed, that the loss of the high place he sought, was at least a paramount reason for dis- solving his connection with a party in which he had so long been an acknowledged leader. That this was the case, certainly does not tarnish his fame or repu- tation.


It was generally conceded that he had peculiar claims to the Senatorship, that his eminent abilities and rare accomplishments, would render him an orna- ment to the august body in which he desired a seat ; that his long service and untiring devotion to the Whig party, was of itself almost a peremptory reason for his promotion to it ; that he had never yet been re- warded for those services, nor obtained for his abilities the full and extensive fields they deserved. Then


again, his antagonist had but recently left the Demo- cratic party, while Tracy's allegiance to the Whig party, and the party from which it originated, was life long. He had been strongly solicited, and that too with offers of high distinctions by the great leaders of the Democratic party in the nation, to unite his for- tunes with theirs, at a time when old parties were changing and new political relations were being formed, yet he had stood firm and unswerving-had adhered to the fortunes of the Whig party and its par- tizans through all vicissitudes. It would be strange, indeed, if a man's fealty to a party under such cir- cumstances should remain unshaken. The personal friendship which had existed for many years between Mr. Tracy and Mr. Van Buren, may have influenced him in leaving his party; while his dissent from certain financial policies of that party, may have operated upon his mind in making the change.


Had he continued with the Whig party, his high character, personal worth, abilities and influence, would have given him, had he desired it, a high posi-


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tion in the government. Thurlow Weed remarked at the time of Mr. Tracy's death, that had he remained with the Whig party, he would have been nomi- nated in 1840 for vice-president, and would of course have succeeded General Harrison in the executive chair of the nation. When, by the death of Harrison, Mr. Tyler became president, he offered Mr. Tracy a place in his cabinet, but the offer was declined by him, and he retired forever from the pitiful shifts and evanescent fame of the politician.


It has been said of Mr. Tracy, that he was never delighted with the practice of the law, although he was actively engaged in it until about the year 1842. For many years, the late Thomas C. Love, of Buffalo, was his law partner. Mr. Love was an eminent law- yer, a prominent and distinguished politician. He was one of the early leaders of the Anti-Masonic party in the State.


In the year 1836-7, he represented the thirty-second Congressional district of the State in Congress. He was appointed district-attorney for the county of Erie in 1829, and he discharged the duties of that office with great ability for the term of seven years, when he was succeeded by the late George P. Barker. Among the distinguished law firms which existed in Buffalo, few, if any, have left a more honorable record than that of Tracy & Love.


As has been said of Mr. Tracy, by an eminent law- yer of the Buffalo bar, " With too much self-restraint, indeed, too severely intellectual, to succeed in the more distinguished role of an advocate, he brought singular qualifications to the plainer labors of the pro- fession. It would be hard to imagine a better coun- selor." Hence, before the court in banc, in conduct- ing a purely legal argument, his ability was generally acknowledged, and, as we have already seen, he knew how to be successful before a jury. But this part of the practice was distasteful to him, particularly in the latter part of his professional life. Doubtless, he was 31


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instigated by some such feelings as prompted Lord Brougham to remark, that it was "a lawyer's duty to save his client by all expedient means-to protect that client at all hazards and cost to others, and, among others, to himself, and he must not regard the alarm, the suffering, the torment, the destruction which he may bring upon others ; and for that reason, I cannot fancy that practice."


Mr. Tracy having retired from the bar, and from the political field, spent the remainder of his days in retirement, from whence, as Lucretius has said : "He could behold from the quiet and safe temples of phi- losophy, the great crowd rolling below, wandering, confused, erring, seeking to and fro the viam vitæ, wasting days and nights in the industrious pursuits of wealth and honor, in the vague hope to enjoy them when possessed."


Fortunate in his business relations, he accumulated a large property, and his home was cheered and en- livened by those intellectual refinements which a mind like his naturally seeks. Books and paintings, the recondite productions of great and gifted writers -the works of literary men of all ages enriched his library, and were his constant companions. He possessed that nice and cultivated taste which en- abled him to keenly relish their beauties. As Lord Orrery said of the elder Pliny, "He was numbered among the chief ornaments of the society in which he lived. He cultivated literature-he loved men of learning ;" and it may be said that Mr. Tracy drew such men to him by a natural and pleasing at- traction.


Like many who have been distinguished at the bar and in halls of legislation, Mr. Tracy was fond of works of fiction. His mind delighted in works of genius, on whatever soil or in whatever age they came forth, and poured out their fullness. He understood the dignity, rights, and pride of creative imagination. He had no pedantry-no fastidiousness. Wherever a


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gem of thought glittered-wherever a keen and philo- sophic argument appeared-there he paused, and in- haled drafts as from Pierian springs.


Among modern novelists, he valued Scott and Bulwer the highest. The metaphysical disquisition- the learned and elegant colloquy - the keen and searching criticism which abounded in the works of the latter were always attractive to him.


Some years before his death, a friend from Albany called upon him, and, in the course of conversation, the works of Shelley were mentioned.


"Do you know," said Mr. Tracy, "that Bulwer has the ablest criticism upon Shelley's poems of any living writer ?"


In proof of this assertion, he took down Pelham, and read the following extract :


"The writings of Shelley would furnish matter for a hundred volumes; they are an admirable museum of ill-arranged curiosities ; they are diamonds awk- wardly set, but one of them in the hands of a skillful jeweler would be invaluable. The poets of the future will serve him as Mercury did the tortoise-make him sing sweetly when he's dead."


Then turning to the student, he said :


" Here are some of his comments upon Young and Byron, which for their liberality, their thorough comprehension, and their exquisite beauty, are un- equaled."


Mr. Tracy then read the following :


"But the conception of the Night Thoughts for a didactic poem is unutterably grand. An aged and bereaved mourner stands alone with the dead-the grave his scene-the night his canopy-and time, death, eternity-the darkest, the loftiest objects of hu- man hope and human intellect-supply his only themes. Here, at this spot and at this hour, com- mencing his strain with a majesty worthy of its ends and aims, he calls upon


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""' Silence and darkness, solemn sisters, twins From ancient Night, who nurse the tender thought To reason, and on reason build resolve, That column of true majesty in man, Assist me : I will thank you in the grave- The grave your kingdom-'


"Following the course of the sombre inspiration that he adjures, he then passes in a vast review before him, in the presence of the stars, and above the slum- bers of the dead, the pomp and glories of the world- the veiled and shadowy forms of Hope-the dim hosts of Memory.


"' The spirit walks of each departed hour, And smiles an angel, or a fury frowns.'


"Standing upon the grave, the creations of two worlds are around him, and the grey hairs of the mourner become touched with the halo of the prophet. It is the time he has chosen wherein to teach us to dignify and consecrate the lesson ; it is not the mere human and earthly moral that gathers on his tongue. The conception hallows the work, and sustains its own majesty in every change and wandering of the verse. And there is this greatness in his theme- dark, terrible, severe-hope never deserts it! It is a deep and gloomy wave, but the stars are glassed on its bosom. I think the Night Thoughts are a more sustained, solemn and mighty poem than Childe Harold ; but when I recall all the works that accompany the latter, products of the same teeming mind, the dark tale of Lord, the sweetness of the Prisoners of Chillon, the daring grandeur of Cain, and above all, the rich, nervous humor-the deep mystery of the living world that breathes a corporeal life into the shadows of Don Juan, I am at no loss to allow Byron to be a greater genius and a greater poet than Young."


"There," said Mr. Tracy, laying the book on the table, "where in the language of criticism can you


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find anything more pleasing than this ? though I can- not fully agree with all the assertions which I have read, still, I regard them as the productions of a great master mind, comparing, weighing, and balancing the thoughts and sentiments of other master minds. It is Herschel viewing Herschel-Jupiter glancing at Jupiter-intellect meeting intellect."


"Well, Mr. Tracy," said the gentleman, "I agree with you in regard to Bulwer's views of Young and Byron. How do you regard Walter Scott as a poet ?"


"There is nothing in Scott," said he, "of the severe and majestic style-or of the terse and fine com- position of Pope, or the elaborate elegance and melody of Southey, or of the solemn grandeur of Young, nor the beautiful diction of Byron, but there is in him a medley of bright images, and glowing words, set carelessly together. Besides, in the man- agement of the passions, he has great power. He raises all the most natural and poetical emotions in the most obvious, familiar, and judicious manner. Perhaps his description of scenery is unequaled ; such is his power in this sphere, that before you are aware of it, you are gazing where,


"' Highest of all, white peaks glance, Where glittering streamers wave and dance Where the wanderer's eye can barely view The summer heaven's delicious blue ; So wondrous wild, the whole might seem The scenery of a fairy dream.'"


"Here," continued Mr. Tracy, "is a picture so distinct and complete, finished with soft, natural coloring, and perfect in outline ; above which is 'the summer heaven's delicious blue.' Another of Scott's triumphs is the facility with which he passes from the description of a scene like this, to the color and light of some moral affection, some thrilling and deep wrought emotion."


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"Really, Mr. Tracy," said the gentleman, "your description of Scott excels Bulwer's description of Young and Byron ;" and the remark is true, for with such conversation as this, Mr. Tracy was in the habit of entertaining his friends. Such conversation as this, caused Daniel Webster, Lewis Cass, and others of that class, to pronounce him the finest conversation- alist of his time. In the language of Mr. Dorsheimer, "men get reputation as a conversationalist in two ways,-some by talking themselves, and some by making others talk. Mr. Tracy did both. He was the best of listeners. He would draw you out, if there was anything in you to draw out; if there was a subject about which you knew more than he did, nothing pleased him so well as when he hit upon it. He was a most delightful critic, full of suggestion and fine appreciation, keenly susceptible to the melody of prose and verse.


"Both by habit and mind, he was truly a republican gentleman. He believed in the principles on which our government was founded, and desired that our society should be governed by the same principles. He paid little regard to social distinctions ; affected no superiority, and was free from pride of station.


"His conversation derived a peculiar charm from his wide acquaintance with the distinguished men of his day. He knew nearly every American of mark in politics or literature. He seized quickly upon charac- teristic traits, and by an anecdote would tell you more than you can learn from some biographies. When I knew him he had been so long out of public life that he seemed to regard his cotemporaries as if they belonged to an older generation ; he judged them without enthusiasm or prejudice."


In person Mr. Tracy was tall, standing six feet in his stockings, and he was well formed. His complex- ion was light; his countenance, if not attractive at first, became so the moment he commenced speaking- then it became as eloquent as his language.


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Before leaving Congress his health failed him, and during the remainder of his life, to a certain extent, he was an invalid, "preserving a moderate degree of health by constant care and watchfulness." Early in September, 1858, he was seized by a violent disease. He lingered two weeks, and, on the 19th day of that month, he breathed his last.


That he had many faults is certain-that the com- mon frailties of our nature were frequently conspic- uous in him, none will deny-that he had as few of them as men in his station in life usually have, is also true.


DANIEL CRUGER.


His Relation to the Political and Legal History of the State .- Compared with Profes- . sional Politicians .- His Ancestry .- Birth .- His Father Removes to Elmira .- Daniel a Printer's Apprentice at Albany .- A Newspaper Carrier .- Interview with a Great Man .- Meets Burr, Spencer and others on his Route .- Daniel Visits the Assembly Chamber .- Looks with Wonder upon the Great Men before him .- Thinks the Speaker a Greater Man than Washington .- His Youthful Ambition .- It is Realized .- His Apprenticeship Expires .- Commences the Publication of a Paper at Owego .- Removes to Bath .- Commences the Study of Law .- His Mar- riage .- The War of 1812 .- Enters the Service as Aid to General McClure .- Cruger in Active Service .- Ordered to Burn the Town of Newark .- Visits the Town with an Orderly .- Assists the Inhabitants to Remove their Property .- Town Burned. -The Reconnaissance .- The Indian Village .- The Torture of the Gauntlet .- The American Prisoners Released as they are about to undergo the Torture .- Punish- ment of a Hostile Chief .- Cruger Resigns .- Is Nominated and Elected to the Assembly .- His Re-election .- Chosen Speaker of the Assembly .- Character as Speaker .- Great Legislative Contest .- Cruger Bitterly Assailed .- Is Elected to Congress .- Congressional Career .- Appointed District-Attorney under the large District System .- Professional Character .- The Flaw in the Indictment .- John W. Hurlbert .- Expiration of his Term as District-Attorney .- His Partnership with William B. Rochester .- Cruger's Influence .- His Speech on the Removal of De Witt Clinton .- Again Elected to the Legislature .- Great Legislative Contest over Common Dirt Roads .- Public Improvement of that Day Contrasted with the Present Time .- New York and Erie Rail Road .- Cruger Retires to Private Life. His Great Energy as a Politician .- His Celebrated Horse Jingle Foot .- Great Feat of Jingle Foot and his Master .-- Scheme of the Federal Leaders Over- thrown .- Personal Appearance of Cruger .- His Hospitality .- His House the Head Quarters for Judges and Lawyers .- Manner of Opening Courts in the Days of Ambrose Spencer .- Death of Mrs. Cruger .- Cruger's Second Marriage. -Removes to Wheeling, Virginia .- His Sudden Death.


ON the pages which faithfully record the political and legal history of the State of New York, the name of Daniel Cruger must be conspicuous-must be iden- tified with those who once controlled its destinies, and who, having acted their part in the drama of life, long since retired to give room for other actors. He was distinguished at the bar as a lawyer of high ca- pacity-eminent in the political arena for his knowl-


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edge of the structure and operation of that machine called society-for his wonderful energy-for his pen, which he wielded with surpassing power, and from which emanated productions whose style was remark- ably clear, elegant and forcible-for his skill in parti- zan drill, and for his great popularity with the peo- ple. He was, therefore, eminently qualified for the turbulent times in which he lived ; for at that period, as well as at the present time, there was a class of men, so well described by Burke, to whom a state of order and quiet becomes a sentence of obscurity ; who are nourished into a dangerous magnitude by force of party strife.


To nothing of this kind, however, was Daniel Cruger indebted for the high position and influence which he attained. He was one of those men who are formed by nature to occupy responsible and honor- able positions in society.


The ancestors of Mr. Cruger were Huguenots, who, at the massacre of St. Bartholemew, escaped from France. A portion of them reached England in safety, while others fled to Germany, and found a home at Altonia, in the duchy of Holstein ; and others fled to Denmark. That branch of the family from which Mr. Cruger descended, settled in Holstein. His father emigrated to America in 1768, and settled in Sunbury, in the State of Pennsylvania, where, on the 22nd day of December, 1780, Daniel was born.


Soon after the birth of his son, the elder Cruger re- moved to Newtown, now Elmira, in the State of New York, and engaged in mercantile business.


When Daniel was thirteen years of age, Mr. Web- ster, one of the earliest printers of Albany, being at Newtown on a visit to some relations, noticing his lively intelligence, his vivacity and activity, induced Mr. Cruger to apprentice his son to him for the purpose of learning the printing business. As Daniel himself was pleased with the arrangement, he willingly accom-




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