USA > New York > Kings County > Brooklyn > The civil, political, professional and ecclesiastical history, and commercial and industrial record of the county of Kings and the city of Brooklyn, N. Y., from 1683 to 1884, Volume II > Part 144
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The responsibility of opening the case under these circum- stances was a momentous one. A hundred detailed statements were to be met and refuted; a multitude of new facts were to be foreshadowed and stated in their proper connection, while the least failure to prove what was promised by the opening address would be disastrous. Mr. Tracy, therefore, wrote out nearly one- third of his speech, covering most of the details concerning which strict accuarcy was needed; although the part orally delivered also contained a large amount of details respecting matters with which the speaker was so familiar that he relied unhesitatingly upon his memory. The address extended over four days, and its effect was remarkable, both in the rapidity and ex- tent of the change made in public sentiment. The boldness with which it put Mr. Beecher's assailants on the defense ex- cited surprise. The only question seemed to be, "Can these statements be proved ?" Mr. Beecher's friends helieved they could. His enemies were not sure that the proof would fail, and of course were placed in much doubt and fear. The proof was substantially given, as was demonstrated to the satisfaction of all who followed the masterly words of Judge Porter, and the magnificent eloquence of Mr. Evarts, in the summing up. The jury, although unable to agrec, stood nine to three in favor of Beecher, upon the final ballot. The action was never tried again."
Another duty in the conduct of that great trial, quite as
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responsible and laborious as the opening address, quite unex- pectedly devolved upon Tracy. This was the cross-examination of F. D. Moulton, a leading witness for the plaintiff. It had been assigned to that distinguished advocate, Hon. John K. Porter, who, after conducting it two days with his usual ability, was suddenly taken so ill that it was impossible for him to continue it.
Such was the nature of Moulton's direct evidence, that it required, in the person cross-examining him, peculiar ab- ility in the use of that thumbscrew of the law-a cross-exami- nation. To conduct it successfully is the most difficult and important duty that can be committed to a lawyer. When it is not founded on materials of contradiction, or directly, to obtain some information which the witness will be willing to give, it proceeds on the assumption that the party interrogated has sworn an untruth, which he may be induced to vary, and it always brings on a sharp mental contest between the advocate conducting it and the witness. After a brief consultation with his associates, and with the other frieds of Mr. Beecher, Tracy was selected to continue Moulton's cross-examination in Judge Porter's place. He began on the morning of January 20th, closing at noon on the 26th, exhibiting a singular knowledge of human nature, of the springs of human action, an ingenious and nice discrimination of his interrogatories and manner of propounding them.
His efforts were eminently successful in strengthening the defense, and in weakening the prosecution.
In December, 1881, General Tracy was appointed by the Governor an Associate Justice of the Court of Appeals, in place of Hon. Charles Andrews, promoted to the office of Chief Judge of the Court of Appeals. This high position was tendered him in recognition of his accomplishments as a lawyer, and of his naturally judicial mind and method.
His appointment was exceedingly satisfactory, not only to the Bar of the State, but to all the members of the Court of Appeals. He carried to the Bench; an inflexible honesty and impartiality, that rose above every influence; adjusted to all occasions. Immediately after his appointment he entered upon his judicial labors-the hearing of arguments, studying and elaborating his opinions, writing them, and in consulting with his brethren of the Bench; in fact, he assumed the duties and the labor of an old and experienced judge. The facility with which he acquired the habit of judicial business, and the promptness with which he transacted it, was remarkable. His duties, however, were onerous, and extremely wearing to his physical strength; but as his knowledge of law was deep and practical, bis powers of comprehension and analysis strong and vigorous, he was able to perform a large amount of judicial labor with apparent ease.
Judge Tracy's written opinions are the best history of his judicial career. They commend themselves, not only to the professional, but to the lay reader. For clearness of expression, research, logical compactness, pointed illustration, and the absence of all pretension and show, they are certainly remark- able judicial productions, destined to live in legal history, to guide and enlighten the judiciary and the profession.
Space will not permit us to enter on any description of the numerous opinions written by Tracy in cases adjudicated in the court of last resort of the State. We cannot, however, avoid referring briefly to a very few of the most important of them.
First in importance among these is Story, appll., agt. The New York Elevated Railroad Company, 90 N. Y., 122. (See Important Trials.) This case derives its interest and importance because it decides the question, "To what extent can private property be taken for public use within the meaning of the Constitution, which provides that private property shall not be taken for pub- lic use without just compensation ?"
Judge Tracy's opinion in this case is one of the ablest, most learned and exhaustive found in the reports of this State. The lines on which he sustains the plaintiff are sharply but nicely
defined. The action was brought to restrain the defendant, the said railroad company, from constructing its road in that por- tion of Front street, New York City, opposite plaintiff's premises, without just compensation. Judge Tracy's decision reverses that of the Supreme Court, which was in favor of the railroad company. We commend a close reading of the case to the stu- dent, the practitioner, and to business men. Those able and enlightened jurists, Justices Danforth, Rapallo and Andrews, concurred with Judge Tracy against the dissenting opinions of Justices Earl and Finch. The following are among the cases of great importance and interest, in which Judge Tracy wrote the prevailing opinion: Smedis v. The Brooklyn and Rockaway Rail- road Company. This was a very important case, and was one of the first, if not the first, in which Judge Tracy wrote an opinion. The People ex rel. Neil Gilmore, Superintendent of Public Instruction, etc., v. Frederick Hyde, 89 N. Y. 11. John A. Stewart, applt., v. The Brooklyn and Cross-Town Railroad Company, respt., 90 N. Y., 588. This case is of vital importance to the vast number of people who travel on the city railroad cars. The plaintiff, while a passenger on one of the defendant's street cars, was unjustifiably attacked and beaten by the driver, who also acted as conductor. The former brought an action against the company, instead of the driver, to recover damages. The plaintiff's complaint was dis- missed at the Circuit on the ground, that if a servant, under the guise and cover of executing his master's orders, and exercising authority upon him, willfully and designedly, for the pur- pose of accomplishing his own independent, malicious or wicked purposes, does an injury to another, the master is not liable. The plaintiff appealed to the General Term of the Supreme Court, where the judgment of the Circuit was duly affirmed. He then appealed to the Court of Appeals, where the judgment of the Circuit and General Term was in all things reversed.
Judge Tracy, in pronouncing the opinion of the Court, said : " The defendant had intrusted the execution of the contract, to safely carry the plaintiff to his destination, to the driver of the car, and he was under his protection. Any breach of contract committed by the driver was a breach committed by the defend- ant, the railroad company. The plaintiff was injured while on the defendant's cars by the act of the driver, the agent to whom the defendant had intrusted the execution of the contract. It is the defendant's failure to carry safely and without injury that constitutes the breach, rendering the railroad company liable for damages; and it is no defense that that failure was the result of the willful or malicious act of the servant, the driver and conductor."
The following are among the cases in which Judge Tracy wrote opinions-nearly all of them the prevailing opinion :- Farwell et al. v. The Traders' National Bank, applt., 90th N. Y., 483; Manning v. Gould, 90th N. Y., 476; Ellis v. Horrman, 9th N. Y., 466; Holsman v. St. John, 90th N. Y., 461; Everson v. Powers, 89th, N. Y., 527; Conger v. Duryee, 90th N. Y., 594.
In private life Judge Tracy is social and hospitable. No man enjoys the society of his friends more fully. It has been said that "without a social side, or social nature, there is wanting that rounded fullness that marks the perfectly developed man, judge, lawyer or layman." In his domestic relations, Judge Tracy is fortunate and happy, and is not wanting a social side or a social nature, for in them he is peculiarly fortunate and happy.
In 1850 he was united by marriage to Miss Delinda E. Catlin, a sister of General Isaac S. Catlin, ex-District Attorney of the County of Kings, and one of the ablest members of its Bar. Judge Tracy has three children, two daughters and a son.
Like many men distinguished for high intellectual qualities, Judge Tracy is fond of agricultural pursuits. Few men are better judges of the blood, breed and value of live stock than he; and he is an acknowledged authority in these important matters.
In the interim of professional and judicial labor, he has spent much time in the superintendence and cultivation of a fertile
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and delightful farm near Owego, New York. After retiring from the Bench in 1882, as he could not resist his love for the profes- sion, he decided to resume it again; accordingly he formed a copartnership with William C. De Witt, Esq., and his son, F. B. Tracy, and opened an office in Brooklyn. This was an advantageous and fortunate business relation, combining a strength and variety of talent, learning and influence which gives it high rank in the profession, and is justly appreciated at home and ahroad.
Unfortunately for Judge Tracy, his devotion to his judicial la- bors and duties impaired his health to such an extent that he was incapacitated for business; but a total abnegation from all busi- ness for s time, judicious medical treatment, and a tour to Europe nearly restored him to health; and he is once more in the discharge of those professional duties he loves so well, and by which he has gained the high honors he so enjoys.
JOHN WINSLOW.
THE professional life of John Winslow covers an important period in the history of Kings County, especially its legal history, and deserves a place in this work. Born of New England parentage, his youth and early manhood were passed in Massa- chusetts, in Newton, near Boston. After attending public schools, he entered the private school of Mr. M. S. Rice, at Newton Centre; and, afterwards that of his brother, Gardner Rice, known as the Holliston Academy. Upon determining to prepare for college, he entered Phillip's Academy at Andover, Masa., then, as now, & celebrated classical school, and remained there two years. Mr. Winslow refers to his life at Andover with pleasare. He attended the recent centennial of Phillip's Academy, and made an address, which is to be published by the corpora- tion, with others delivered on that occasion. Mr. Winslow entered Brown University, being attracted there by Dr. Wayland, the then President, for whom Mr. Winslow ever entertained the greatest respect and regard. In September, 1850, Mr. Winslow entered Harvard Law School, at Cambridge, Mass., where he remained two yesrs and graduated, receiving the degree of LL.B. While at the law school his most intimate friend and room-mate was the Hon. E. L. Pierce, of Milton, Mass., the biographer of Charles Sumner.
When in the law school, Pierce and Winslow become well known, not only as faithful students, but as pronounced anti- slavery men. In the debates, in what was known as the Parlia- ment, they were expected to maintain the Anti-slavery Free Soil side of all questions touching that issue.
At that time there were many students in the law school from the South, who were fiery advocates of the Southern view. It was then the fashion for Northern men to advocate or apolo- gize for the same viow. The result was, Pierce and Winslow becsme rather marked men among the multitude, as composing the free Boil minority. When the time came for writing prize dissertations, the Southern students, who were generally ambitious, entered the race for the prizes. Pierce and Winslow thought the minority ought to be heard from, and so agreed to write; Mr. Pierce taking one topic, "The consideration of a Con- tract at Law and Equity;" and Mr. Winslow the other, "The responsibility of a Principal for the Acts and representations of his Agents." The minority, that had been so often pitched into in debates, had the grim satisfaction of winning the prizes. In this connection Mr. Winslow had the pleasure of receiving a letter of congratulation from the late Professor Theophilus Parsons, then of the law school, and author of "Parsons on Contracts" and other well known legal works. Professor Parsons avsiled himself of both dissertations in writing his work on Contracts.
Upon leaving the law school, Mr. Winslow was admitted to the Bar in Brooklyn, in 1852, and commenced the practice of
law with his late brother, Hon. D. C. Winslow. In the follow- ing year he was appointed Assistant District Attorney, when Gen. Harmanus B. Duryea was District Attorney. The latter's health not being firm, Mr. Winslow had thrown upon him large responsibilities, which, with the energy of young manhood to aid him, he was glad to assume. In 1855 Mr. Winslow was appointed Corporation Attorney, at the request of Mayor George Hall, whose legal adviser he was during the Mayor's term. In 1859 Mr. Winslow was elected, on the Republican ticket, Dis- trict Attorney of Kings County for a term of three years, begin- ning January 1st, 1860. It is the testimony of the Bar, and of the Press, that Kings County never had a more faithful and effi- cient District Attorney.
"We have had repeatedly," says the Brooklyn Eagle, February 11, 1861, speaking of his success and ability in the discharge of his duties in his first term, "the satisfaction of commending the vigor with which public justice has been administered by the public prosecutor of this county, and the list of public offenders who have been punished, will tend to enforce the solemn truth that the way of the transgressor is hard, especially under the regime of District Attorney Winslow and Judge Garrison. The whole number of convictions within the year was 315; and, among the criminals who have been convicted, were several notorious offenders, now doing the State some service at Sing Sing. The number of persons acquitted on trial was but fourteen -- a fact which forcibly shows . two things: that few innocent persons have been subjected to prosecution, and that few guilty ones have escaped their deserts. It is a remarkable fact that of the whole number of persons tried under indictments last year in the city of New York, one in every five was acquitted; while in Brooklyn the ratio was but one in twenty-three." This statement, it will be observed, was for one year only, and is certainly very remarkable ; but it is still more remarkable, that the record of the convictions in Kings County, for every year that Mr. Winslow held the office, compares favorably with that.
In 1866 he formed a copartnership with Hon. Joshua M. Van Cott. This firm, their office being at 54 William street, New York, became one of the most distinguished in the city; the versatility of talent which it combined admirably fitted it for its large and extended clientage, each member of the firm bringing to it a degree of learning, patient industry and legal ability of the highest order. The records not only of the courts of New York City, but of Kings County, and other parts of the State, show the large amount and great importance of their business. This firm existed through the unusually long period of seventeen years. The reports of cases adjudicated in the Court of Appeals and in the Supreme Court, as well as in the City and County Courts, illustrate their success in conducting litigation.
Among these cases was that of Hope vs. English, a libel suit; and the case of Sage vs. The City of Brooklyn (see " Important Trials"). Both of these cases were of unusual interest; the latter was very important to the owners of real estate in the city of Brooklyn under tax and assessment laws. It is just to Mr. Winslow to say that the management of these cases was, in a large measure, assigned to him alone; in both of them he was eminently successful.
In the spring of 1874 a vacancy occurred in the office of District Attorney, by the resignation of Thomas M. Rodman, and Mr. Winslow was appointed by Governor Dix in his place; his appointment dates May 9, 1874. The selection of Mr. Winslow to this office at this time, when several important indictments against public officers were pending, was highly complimentary to him as a lawyer. The successful manner in which Mr. Winslow, as the prosecuting officer of the county, conducted the trials of these indictments, proved him to be a faithful, independent and valuable public servant. These trials, which created much public excitement, as they involved the
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HISTORY OF KINGS COUNTY.
reputations of several public functionaries, upheld by powerful friends, who wielded much influence in the community, required of the public prosecutor courage and perseverance. The administration of this responsible office is necessarily aggressive and difficult; it is, or should be, regarded as quasi- judicial, requiring its incumbent to temper justice with mercy, and a clear, prompt and decisive application of legal know- ledge to the questions that arise before him.
Happily, Mr. Winslow brought to this office all these endow- ments.
His high reputation as a lawyer, his acknowledged abilities as a scholar, and the purity of his character as a private citizen, brought him so prominently before the public that, in the autumn of 1873, he was nominated by the Republicans of the 2d Judicial District for the office of Judge of the Supreme Court.
His party was largely in the minority, and though not elected, there was much in the result of the canvass, especially the large vote he received, that was gratifying te him-much that evinced his popularity as a man and as a lawyer.
In politics, Mr. Winslow is a Republican; though firm and undeviating in his principles, he is not aggressive. He very early allied himself with the friends of free soil and the eppe- nents of slavery; on the breaking out of the Rebellion, few were more earnest and influential in the great work of preserving the Union than he. Though he did not enter the army, in his office of District Attorney, which he held when the war began, and as a public speaker, hc rendered services quite as important in the work of sustaining the government, by his eloquence, his vigorous and versatile pen, his influence and his means.
Soon after the dastardly attack of Preston S. Brooks upon Senator Sumner, an immense indignation meeting was held in the City Hall, in Brooklyn, for the purpose of denouncing the unprovoked and cruel assault on the illustrious Senator from Massachusetts. It was one of the largest meetings ever as- sembled in Brooklyn. A series of stirring resolutions were adopted, and Mr. Winslow, being introduced by the chairman- the Mayor of the city-advocated their adoption, in a speech which was not only warmly applauded, but produced a marked effect. +
It was made at that period in the history of the Republic when patriotism is eloquent; when self-devotion is eloquent; when opposition to high-handed encroachment upon the rights of others is eloquent. Mr. Winslow's speech was marked by clear conception, by sound reason, hy stirring, impetuous and irresistible appeal, and by the fearless instincts of a patriot, as pleasing in diction as it was strong in argument. One of Mr. Winslow's most impressive efforts during the Civil War, was made at Fort Hamilton in May, 1861, on the occasion of the renewal of the oath of allegiance of the officers and men whe had recently formed the garrison at Fort Sumter, in obedience te an order of the Secretary of War. At the tap of the drum the battle-scarred veterans formed in line and marched towards one end of the Fort, where they were drilled by Capt. Doubleday. It was an impressive scene, the drilling of those men, begrimed by the smoke of Sumter as its walls crumbled around them, under the fire of rebel batteries. The drill over, the troops formed in line and came to a halt, when the Rev. Henry Ward Beecher offered a prayer, after which Mr. Winslow delivered a brief but impressive address, which touched all hearts. The occasion was well calculated to arouse every energy, every thought and feeling of an orator. At the conclu- sion of his speech, as District Attorney of Kings County Mr. Winslow administered the oath. It may well be said that the occasion was one of surpassing interest, and has passed inte history.
Mr. Winslow is peculiarly happy as a speaker, not only at the Bar, but in the popular assembly; he always speaks to the peint with animation, fervor and emphasis; his inanner is uni-
formly easy and natural, his diction chaste and unpretending, his gesticulation appropriate and impressive; never indulging in extravagant flights of imagination, giving utterance to cearse invective or low and heartless ridicule, and never speaking merely for the purpose of display. At the Bar he always com- mands the respectful attention of the Court and jury. Space will not permit us even to allude to the large number of popular addresses of Mr. Winslow's on literary, scientific and educa- tional matters; these addresses alone, fairly reported, would form material for volumes. A few years age there was a gather- ing of the old free soilers at Denners Landing, on the bay near Besten. Charles Francis Adams presided; the occasion was a memorable one. Mr. Winslow's address on the attitude ef John C. Calhoun towards the anti-slavery cause is speken of as a masterly production. It is proper to add that he has been, and still is, a very active and industrious man; he wields the pen of an accomplished writer; and it is net extravagant te say that the productions of his pen have largely enriched the literature of his times. One of hie latest contributiens is an article on Rufus Cheate in Judge Neilson's Memories of Choate. In his student days, as we have seen, he achieved a triumph as a writer which would have been enviable to any law student.
Mr. Winslow has been largely identified with the organization of important public institutions in Broeklyn. He was one of the five who signed the first call for a public meeting to organize the Long Island Historical Society. The meeting met in the Hamilton Building, and was called to order by Mr. Winslow, who nominated Prof. C. E. West for chairman. He was for several years a Director and the Corresponding Secretary of the Society. And as chairman of the committee having charge of the matter relative to the motto of the Society for its seal, and which appears on the easterly wall of the Society's elegant building on Clinton street, adopted the following from Cicero, "Historia testis temporum." The flourishing New England Society in the city of Brooklyn, of which Mr. Winslow is a Director and first Vice-President, owes its existence to him more than to any other one man. He was one of the original members of the Hamilton Club, of which he is a Director and is a member of its Executive Committee.
Mr. Winslow has just cause te feel some pride of ancestry; fer, as Lerd Bacon has said: "It is a reverend thing to see an ancient castle, or building not in decay, or to see a fine timber- tree sound and perfect; how much more to beheld an ancient noble family, which has stood against the waves and weathers of time !"
He can unerringly trace his genealogy on the paternal side to a very remote peried of English history; and, as has well been said, " that of families bearing the Pilgrim name, there are nene mere identified with Pilgrim history than those of the honered name of Winslow; that the descendant Winslows may loek with pride to their distinguished ancestors, who bore so important a part in planting the colony of New Plymouth." Edward Winslow, one of these ancestors, was one of the Pilgrims whe landed from the Mayflower at Plymouth, Dec. 20, 1620 (O. S.) His marriage with Mrs. White was the first that toek place on the soil of New England; she was his second wife, and the widow of William White, one of the chief passengers of the Mayflower, who died about the 1st of March, 1621.
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