Causes and Conflicts: The Centennial History of the Association of the Bar of NYC 9780823295258

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Causes and Conflicts The Centennial History of the Association of the Bar

of the City of New r ork

1870-1970

Also by George Martin The Opera Companion: A Guide for the Casual Operagoer The Battle of the Frogs and the Mice: An Homeric Fable Verdi: His Music, Life and Times The Red Shirt and the Cross of Savoy: The Story of Italy's Risorgimento (1748-1871)

Causes and Conflicts The Centennial flistory of the Association of the Bar of the City of New York

1870-1970

GEORGE MARTIN ILLUSTRATED

WITH PHOTOGRAPHS

FORDHAM UNIVERSITY PRESS New York 1997

Copyright © 1997 The Association of the Bar of the City of New York All rights reserved. LC g6-536og ISBN o-8232-1735-3

Library of Congress Cataloging-in-Publication Data Martin, George Whitney. Causes and conflicts : the centennial history of The Association of the Bar of the City of New York, 1870-1970 I George Martin. p. em. Originally published: Boston : Houghton Miffiin Co., 1970 Includes bibliographical references and index. ISBN o-8232-1735-3 1. Association of the Bar of the City of New York-History. I. Title. KF334-N4A.845 1997 34o'.o6'o7471-dczo g6-536og CIP

Preface THE FmST woRDs of this book, I believe, should put beyond doubt that what follows is one man's view of the Association, my view, and not that of the Association itself, or more particularly of its centennial committee. For better or worse, the selection of incidents, the emphasis of trends, the judgments of men and occasional probing of their motives are mine, and while of course, I hope they present a balanced view of the Association's history, they do not pretend to offer a rounded view in the sense that a committee has worked them over to reach a consensus. The Association, through its committee, promised me a free hand with its history, and greatly to its credit, I think, it has not reneged. Next, it should be emphasized that what follows is a layman's view of the Association. Once I practiced law in the city and even, briefly, was a member of the Association. But that was long ago, and I have written this book as an outsider, both to the profession and to the Association. Certain consequences, I feel, follow from that and should be recognized. For example, there are judgments I cannot make. Edward N. Perkins, a lawyer and member of the Association, could state bluntly in the historical sketch he wrote for its seventy-fifth anniversary that there were a number of committees which held meetings, published reports and accomplished absolutely nothing of any significance. I lack the knowledge of any of the specialized fields of law to make such a statement. On the other hand, perhaps as an outsider I could judge better than a member of the Association the extent to which it had pushed David Dudley Field, like

vi

Preface

a bad dream, out of its history. It seems incredible, but the first three histories of the Association, published at each quarter century of its existence, with a single exception in one of them, never mention Field by name. But these are minor consequences of my layman's view of the Association. A much larger one, I feel, arises from the general attitude of laymen and lawyers toward the organization. In the course of writing the book I have become convinced that the two groups, despite important exceptions, particularly among the lawyers, tend to judge it from different points of view. Neither view, it seems to me, is more right or true than the other, and both must be tempered. But they are different, and it may be wise to state that difference at the start. For the fact that I, a layman, tend to favor the laymen's point of view is, in a way, a premise to many of my conclusions. Pushing the two views to extremes in order to clarify their difference, I would say that laymen tend to stress the Association's role in government, particularly in movements to reform the judiciary or to protect an individual's rights. They think, perhaps unfairly, that the Association is, or should be, involved with justice. Whenever an injustice is committed, they hope to see the Association, like St. George on a white horse, ride up to the scene of the crime and slay the dragon. Probably a majority of lawyers, on the other hand, see the Association or any similar bar group as much more limited in scope, concerned primarily with problems of the profession and, in the area of government, primarily with analyzing and proposing new legislation. Justice- what actually happens in a courtroom or clerk's office- is a problem for the citizenry as a whole. The typical lawyer talking of the Association, therefore, will stress the work of its committees on grievances and on state legislation. The typical layman, in response, will dismiss these as duties to be performed as a matter of course, in much the same way the world gives no credit to a housewife for making beds and serving meals.

Preface

vii

With regard to the housewives the world, no doubt, is wrong, but it is not likely to change. Neither is the layman's view of the purpose of a bar association. Nevertheless, this view in one respect, at least, is unfair and brings me to the last point which I feel must be emphasized at the start of the book. The Association, for all the solidity of its building, is still that most unstable of all organizations, a body of volunteers. Though its members, sometimes by the hundreds, swarm in and out of the building, and though it has a permanent staff, it is still primarily only a voluntary group. Its leaders, the officers and chairmen of committees, are all men who are donating time and energy to a cause. Further, they are only part-time volunteers, for they are men who generally each day have worked hard on something else first. It is easy to forget this; the Association seems so stable, so much an institution. Yet the limitations of time and energy are very real. So too, of course, is the limitation of money. What any critic or partisan must consider in judging the Association is not whether it has matched some ideal association, but how it has worked within its limitations.

Many members of the Association have helped me in writing the book by answering questions, testing ideas and sometimes by going to considerable trouble to verify a fact. Chief among these were Merrell E. Clark, Jr., Edward J. Dimock, Henry N. Ess, III, Roger B. Hunting, Theodore Pearson and Harrison Tweed. Three members of the staff have been particularly helpful: Paul B. De Witt, the executive secretary, Anthony P. Grech, the librarian, and John G. Bonomi, chief counsel of the committee on grievances. Without them the book would be considerably less interesting and less accurate. Others outside the Association who have contributed something important to the book are Mary Barnett, who did much of the research for Chapters 14 through 18; Elliott B. Nixon, who put his knowledge of the city's history, past and present, at my

viii

Preface

service; and the Association's neighbor, the Mechanics Institute Library. Finally, a word about the notes to the text. There are two kinds. Those that are chiefly concerned with citing a source, and nothing more, have been numbered, organized by chapters and put at the back of the book. Those offering the reader additional information on a point or person under discussion appear beneath the text, at the bottom of the page, and are indicated by asterisks. GEORGE MARTIN

New York City

1969

Contents

Foreword by Francis T. P. Plimpton, p. xvii Part One Chapter 1, p. 3· Public morality in the United States after the Civil War. The Erie Railroad scandals in New York. The businessmen and their lawyers. The legislature and the judiciary. Brady's outburst to Judge Barnard. Protests, witty and earnest, by laymen over the actions of the bench and bar. More Erie Railroad scandals. A call for organization goes out to certain members of the city's bar. Chapter 2, p. 16. Some mysteries concerning the call. Peckham's reluctance to sign it. O'Conor and the New York Law Institute. Evarts and the image in which the new Association would be fashioned. Chapter 3, p. 29. The first organizational meeting. Field and his abuse of legal process and proceedings. The constitution of 1846 introduces the election of judges and lowers the requirements to practice law. Nicoll's speech restricting reform to the bar. Evarts' speech extending reform to include the bench. Tilden's speech. Its points wellstated. His importance. G. T. Strong in his diary. Chapter 4, p. 40. The Association organized. The assault on Eaton. The Association's emphasis on its house and library. It hires Berry. Its inability to incorporate or to influence the governor on the appointment of judges. The Albany Law Journal on the Association's failure to attempt reforms. Chapter 5, p. 50. The problem of governing cities by American forms of government. Tilden vs. Tweed on Tweed's charter. Nast and

x

Contents

the Times. Field and Bowles. Field's effort to reform the law on injunctions. Field and Barlow. Stickney and Curtis on Field. The Times publishes figures on the frauds. The Committee of Seventy and Choate's speech. The Committee rejects Field's offer to prosecute Tweed. Chapter 6, p. 68. Difficulty of assessing the Association's role. Its stand on Ledwith. The memorial to the legislature on corrupt judges. The hearings of the Assembly's committee. Cardozo resigns. Trial of McCunn. His death. Impeachment of Barnard. Two more impeachments. The chance to return to an appointed judiciary. Chapter 7, p. 87. Field examined by Stickney. His background and personality. The movement to discipline Field within the Association. Field's speech. Evarts' plea for moderation. The effect of the dispute over the years. Chapter 8, p. 104. The referendum on the method of selecting judges. Tweed's first trial. Tilden and Garvey as witnesses. The Association's "Address to the Voters." The people vote to continue to select judges by election. Tweed's second trial. Judge Davis' anger at the defense lawyers. Tweed convicted. The lawyers, including Field and Root, ruled in contempt of court. Tweed goes to jail. Field reverses Judge Davis' decision on the cumulative sentence and answers the charge of contempt. Tweed escapes. His third trial. O'Conor vs. Field. Tweed's flight and capture. His offer to testify is rejected and O'Conor resigns as prosecutor. Chapter g, p. 120. The decline of the reform movement. The canal "ring." The commission on the government of the cities. Tweed dies in jail. Tilden loses the Presidency, though winning the popular vote. Evarts and Tilden cease to be active in the Association. O'Conor's grievance against the New York Times and his retirement. Nicoll's misfortune. The founding of the state bar association. The question of voluntary versus integrated associations. The fight over the rules governing admission to the bar. Theodore W. Dwight and Lewis L. Delafield. The debate within the Association. Its weak stand on judicial nominations.

Contents

xi

Chapter 10, p. 142. The Association's house on zgth Street. Its receptions. Its opposition to Field's proposed civil code. Codification vs. the common law. Bentham, Field and Carter. The Association defeats the proposed code. A change in attitude toward Field's ideas. He dies. Chapter 11, p. 158. The Association removes Judge Maynard from the bench. The constitutional convention of 1894. Root. Apportionment and reform of the judicial system. The Association's twenty-fifth anniversary party. Evarts in old age. His speech. The new house and its opening. The Rev. Parkhurst and Boss Croker. The Citizens Union. Defeat of reform. Judge Daly ousted by Croker. Chapter 12, p. 172. The Association's declining energy. The increasing age of its presidents. James C. Carter. The Choates. The emergence of the City Club and the Good Government Clubs. The significance of it for the Association. Its increasing isolation. Choate's speech to the Friendly Sons of St. Patrick. The protest of the younger members. Elihu Root. The coldness of many lawyers. The New York County Lawyers' Association founded. The criticism it represented of the Association. Chapter 13, p. 187. Changes in the practice of law. The rise of business law and its effects. Root, the Tilden Trust and the Carnegie Corporation. The arrival of the typewriter and the telephone. The decreasing personal contact between lawyers. John W. Sterling as a new type of lawyer. The identification of the lawyer with his client. The insurance investigations and the Association's failure to play any part in them. Dimock's recollection of life within the Association in the early decades of the 1goo's. Chapter 14, p. 201. World War I and the problems facing the Association. Milburn, Byrne and Taft. The increasing activities and membership. The Assembly at Albany expels five Socialist members. Hughes and the Association lead the protest. Cromwell's generosity. Guthrie as president and as a man. The movement for an integrated bar in the state and its defeat. Chapter 15, p. 224. Hughes as president. The bankruptcy investigation. Mayor Walker and Boss Curry. The Association under Burlingham investigates Magistrate Vitale. The first Seabury investigation: the

xii

Contents

Magistrates' Courts. Kresel. The second Seabury investigation: the district attorney of New York County. The third: Mayor Walker. Personalities and politics: Roosevelt's role, Seabury's and Burlingham's. The Hofstadter-Steuer campaign. Court packing and women. Chapter 16, p. 246. The revival under Tweed after World War II. Burlingham and Medina on the nominating committee. Tweed's personality. His programs. His energy. The campaigns for "sustaining" and for "younger" members. The committee structure reorganized. The renovations. The Lumbard episode. Tweed's methods of leadership. His effectiveness. Chapter 17, p. 266. The Surrogate's Court in New York County. Maneuverings over the nominations for it. Patterson's prestige. What the Association accomplished. The era of McCarthy. The failure of the Association's usual procedures. A newspaper publisher criticizes the profession. Some reasons for the profession's inaction: the problem of the newspapers and the collapse of professional courtesy. The report on the federal loyalty-security program. The Bricker Amendment. The Association's position and, in this case, the effectiveness of its procedures. Chapter 18, p. 292. The expansion of the Association's membership. Problems it caused with respect to the committees. The development of the special committee with a hired staff. Its significance. Court reorganization in the state. The "Tweed commission." What it accomplished. The Committee for Modem Courts. The Association's role in court reorganization. Efforts to improve the method of selecting judges. Failure in the legislature and in the constitutional convention. Botein's efforts to work with the political leaders. His failure. The perennial problems of city government continue unsolved. A statement of the Association's role today.

Part Two Chapter 19, p. 319. The library committee over a hundred years. The committee's concept of the library, and the first librarian, William J. C. Berry. The first books bought. Elbridge T. Gerry and the cultural background of the law. Guests in the library. Mrs. Berry. Berry's cata-

Contents

xiii

logue, 18gz. The new building and the beginning of "closed" stacks. The problem of space. Merrill and Kip. Berry's departure. The committee's functions, for a number of years, are usurped by the house committee. Franklin 0. Poole and the new card catalogue. Henderson and Sheppard. The library's golden age. Sydney B. Hill and the problems of the library. Wages and paternalism. The division of the posts of general manager and librarian. Hill's departure. Charpentier and the renovation. The books most used. The bibliographies. Chapter 20, p. 351. The committee on grievances over a hundred years. Self-discipline, the distinction, perhaps, between a profession and a trade. The history of the court's role in it. The grievance committee's uncertain beginning. Titus B. Eldridge. The committee sees its function. The Association refuses to provide it with a staff. The number of complaints increase. The Association provides a full-time assistant. Einar Chrystie. Impartiality and the incident of Thomas L. Chadbourne. Guthrie's abortive reorganization of committee procedures. The problem of unlawful practice. The committee on professional ethics and the canons. The problem of "ambulance chasing." The first investigation with a view to disciplinary legislation. The continuing problem of ambulance chasing and the coordinating committee on discipline. California and Bronx and New York Counties compared. The rate at which complaints might be expected. The present organization of the committee. Its function.

Summary of Method of Selecting Judges in New York. Appendix B, p. 385. Summary of Requirements for Admission to the Bar in New York. Appendix C, p. 389. The note presented to Judge Noah Davis by Boss Tweed's Counsel at the start of the Second Trial in November 1873·

Appendix A, p. 383.

The presidents of the Association and the age at which each took office. Table 2, p. 393· Reports of special committees published as books. Table 1, p. 391.

Notes, p. 401. Bibliographical Note, p. 417. Index, p. 421.

Illustrations

(following page 204) Call for organization Invitation issued to subscribers William M. Evarts

Samuel J. Tilden Charles O'Conor David Dudley Field Dorman B. Eaton Judge George G. Barnard Cartoon of Tilden and Tweed Tweed Wanted poster Second house of the Association at 3, 5 and 7 West 2gth Street South end of the library in the annex Entrance hall at 7 West 2gth Street "Honest John" Kelly Boss Richard Croker Theodore W. Dwight Joseph Hodges Choate James C. Carter

(following page 236) Present house of the Association, 42 West 44th Street Entrance hall of the Association

xvi

Illustrations Elihu Root John G. Milburn James Byrne Henry W. Taft Cartoon from The New Yorker Charles Evans Hughes New York Times, January

13, 1920

New York Times, January

14, 1920

William D. Guthrie William Nelson Cromwell

(following page z68)

Mayor Walker on the witness stand being questioned by Samuel Seabury Charles C. Burlingham with Nicholas Murray Butler Cartoon from New York World-Telegram Harrison Tweed Paul B. De Witt Library of the Association Carmine De Sapio Robert P. Patterson Cartoon from the New York Post Whitney North Seymour and Bethuel M. Webster Cartoon by Harris B. Steinberg

Foreword by Francis T. P. Plimpton SoME OF us will recall that when Queen Victoria was asked to approve her new portrait, she said to the nervous artist, "We are redder than that!" Whether George Martin has given the proper coloration to the picture he has drawn of the Association's first hundred years is for professional historians to debate. For myself, I find his narrative a colorful one, which I can cheerfully and confidently recommend, not only to members of the Association, but to anyone who enjoys a good book and is interested in New York City during one of its formative and memorable periods. I do not wish to convey the impression that the book is mere entertainment, desirable though that is in these somewhat lugubrious days. It has other important values. For example, the book praises famous men: Evarts, Tilden, Root, Stimson, Hughes, Davis, Tweed. It also praises others no less interesting because their names are not household words. All of these vignettes of our predecessors are charming and sometimes acetic. The same discrimination marks Mr. Martin's judgments as to our successes and failures. The Association has had a proud history, but not an unblemished one. It did not spring full armed to do battle with Boss Tweed. It took a good deal of prodding from the New York Times and others. However, it is fair to say that once the Association was organized and entered the fray ultimate success was assured. Or, to put it another way, without the new society of lawyers, success would have been delayed, if not impossible to achieve. Mr. Martin sees this initial effort of the Association in perspective, as he has other historic events. He has

xviii

Foreword

not only taken advantage of the complete freedom to speak his mind, but his instinct for thoughtful insight and reasoned judgment is, in my opinion, remarkable. The book will enhance the reader's enjoyment of the events planned to celebrate the Association's Centennial Year, a year which, I trust, will be one of pride in our past, reward for present good works, and confidence in the future. This was John W. Davis' wish for all of us when he said at the celebration of the Association's seventy-fifth birthday, "May it be said of this Association today and on all succeeding anniversaries that it has been true to its creed; that it has kept the faith."

January

1,

1970

From the arguments in the impeachment trial of George G. Barnard, Justice of the New York State Supreme Court, held at Saratoga Springs, July 2 2 - August 19, 1872.

Counsel for Barnard: The Assembly of this State appointed nine managers, selected from its body for their ability and fairness to conduct impeachment. They have sat through this trial as mute dummies and delegated its control to the Bar Association of the City of New York; and when I hear that this Association is at this hour engaged in the circulation of a subscription to provide a fund for the prosecution of this case; and when I see the spirit of malignity and hate which animates it . . . . [and] when we see the subtle and stealthy emissary of the Bar Association of the City of New York shadowing this court and its members, do you suppose the speculation of this community is not excited? -August 13, 1872. Counsel for the managers: The Bar Association, too, has come in for a share of the gentleman's notice. We do not bring the Bar Association here, sir. The counsel, who are here aiding the managers, are retained by the managers to aid them in conducting this case. The Bar Association has no status in this court, and has no claim to be heard here, and does not ask to be heard; but if the gentleman will bring the Bar Association before the court, to gather some inferences from the supposed presence or influence of the Association here, I very cheerfully accept his challenge. What is the Bar Association of the City of New York? It is the reputable Bar of that city, and the whole of it; for no lawyer of reputable standing is obliged to stay out of it, and I believe I may say that every reputable lawyer desires to be in it and to co-operate in its high and useful public purposes. -August 15, 1872.

Chapter 1 "BENCH AND BAR," noted George Templeton Strong in his diary for April g, 1868, "settle deeper in the mud every year and every month. They must be near bottom now." As a New York lawyer he was lamenting the scandals in the city's courts. But nine months later when the scandals had proved greater, and the bottom lower, than he previously had imagined, he added: "To be a citizen of New York is a disgrace. A domicile on Manhattan Island is a thing to be confessed with apologies and humiliation." And, as many of his fellow citizens were beginning to believe, "The New Yorker belongs to a community worse governed by lower and baser blackguard scum than any city in Western Christendom, or in the world." 1 New York at the time was not the only American city suffering a decline in professional and civic virtues. In the years immediately after the Civil War public morality everywhere declined. Examples of the sickness were many and sordid, and one, the gold conspiracy of 186g, seemed to touch even the President of the United States, but because New York had emerged from the war as the country's financial and commercial capital, the worst incidents occurred there. Those most directly involving the city's bench and bar arose out of litigations concerning the Erie Railroad, particularly one which came to a head in January 1868, when a fight for control of the Erie broke out. Because of the flamboyant nature of the chief actors, it soon focused the country's attention on the methods of business in New York and on the workings of its courts and legislature.

4

Causes and Conflicts

Seeking control of the Erie's board of directors was Cornelius Vanderbilt, the "Commodore" of a steamboat empire, still rugged and blasphemous and now, in his seventies, turning his attention to railroads. He had created the New York Central in 1866-1867 by consolidating three small railroads, and he saw, as did others, that if he could acquire their only competitor, the Erie, he could raise the rates on both lines at will. Opposed to him were three men who dominated the Erie board and were known as the "Erie clique," Daniel Drew, Jay Gould and Jim Fisk. Drew, illiterate but shrewd, was a psalm-singing Methodist and founder of Drew Theological Seminary in New Jersey, but he was best known for his manipulations of Erie stock on the New York Exchange. As a youngster driving cattle over the Alleghenies, he had introduced the phrase "watered stock" into the language by deliberately parching his cattle with overdoses of salt and then letting them fill up with water, just before weighing them in for sale. Now, as the man in control of the Erie, it was his habit, if he saw a chance to drive the value of the Erie stock up or down, to have the corporation issue new stock to finance the installation of "steel rails." Then he would take a profit on the sudden change in the stock's market value without, somehow, ever getting around to laying the rails. Gould and Fisk at the time were still relatively unknown, but Gould had achieved a sort of fame by once cornering the Delaware County market in hides, and Fisk, a former salesman of Jordan Marsh & Co. in Boston, had a reputation for flashy clothes, liquor and women. As counsel in this fight, the opposing sides retained the bestknown lawyers in New York. Charles O'Conor, reputed to have the finest record at the bar for winning cases, represented Vanderbilt; and David Dudley Field, who had drafted New York's Code of Procedure and who, a century later, would be called "the father of American legal reform," represented the Erie clique. But the distinguished counsel did not stop there. As one incident followed another in both the business and the legal sides of the fight,

Conflicting orders in the Supreme Court

5

Field hired additional lawyers until more than forty helped him to defend Drew, Gould and Fisk against Vanderbilt and O'Conor. Perhaps the most notable among these were Clarence A. Seward, the nephew of Lincoln's Secretary of State, and William M. Evarts, who had defended President Johnson in his impeachment trial. The incidents of the struggle were both sensational and bloody. Vanderbilt tried to buy control of the Erie board by purchasing all the company's shares. The clique tried to prevent him by printing more shares on a private press and leaking them out for sale. To stop these issues of stock, which were wholly without authorization, O'Conor procured a series of injunctions from Judge George G. Barnard, a justice of the Supreme Coure sitting in the city. But the three Erie directors kept their press at work, and Field, going upstate to Broome County, persuaded the Supreme Court judge there to issue a counterinjunction. This was possible under Field's Code of Procedure because in actions of an equitable nature it gave statewide jurisdiction to each of the eight districts into which the Supreme Court was divided. Thus any one of the court's thirty-three justices sitting in any district could nullify a colleague's order, even if issued in another district, and in turn, could find his own order nullified - a spectacle Field had not foreseen or perhaps had supposed would be prevented by mutual respect among judges. And indeed one judge in Brooklyn, on being petitioned to command by mandamus what Judge Barnard in New York had enjoined, ordered the Erie directors not to refrain from doing the very things which Judge Barnard had enjoined them from doing. At the end of a month of legal action five judges had issued seven injunctions, all enjoining or commanding things wholly inconsistent. When the clique's press had continued to turn out stock, Judge Barnard, also on O'Conor's petition, had ruled the three men in 0 In New York the Supreme Court is not the highest court in the state; that is the Court of Appeals.

6

Causes and Confiicts

contempt of court and had issued orders for their arrest. As the only certain way for them to avoid jail was to move outside the jurisdiction of the court, they and their staff with all the Erie's records fled by ferry and rowboat across the Hudson to Taylor's Hotel in Jersey City. But they could not take the heavy printing press with them, and the illegal issues of stock ceased- for Vanderbilt, only just in time. He had bought some 15o,ooo shares of the Erie without gaining control of it, and of those shares almost wo,ooo were illegally issued and declared invalid by the Stock Exchange as well as by Judge Barnard's court. In all, Vanderbilt had spent, and for stock which perhaps was worthless, about eight million dollars. The skirmishing now shifted to Albany, where the Erie clique, anxious to legitimize the illegal issues in order to keep the speculative profits on their sale, tried to bribe the legislature to pass the necessary laws. Drew, as usual, published a statement that the Erie needed to issue more stock in order to finance the installation of steel rails. To confirm the poor condition of the road's equipment he published a report of one of its superintendents: "Broken wheels, rails, engines, and trains off the track, have been of daily, almost hourly occurrence for the last two months." But the clique's first effort with the legislature failed because their agent, a lawyer named John E. Develin, offered only $1,000 a vote. Many legislators, who received only $300 a year from the state, were convinced that Drew, Fisk and Gould were prepared to go much higher- or if not, that Vanderbilt was. State Senator A. G. Mattoon, reputed to be the most venal of all the legislators, came down to New York, saw Vanderbilt first, and then crossed to New Jersey to confer with the clique. Soon many legislators were talking of demanding $3,000 or even $5,000 for a vote. One honest man, Assemblyman E. M. Glenn of Wayne County, was so outraged by what was happening that, rising in the Assembly, he recounted how he himself had been offered money for his vote and demanded an investigation. After some debate the

Vanderbilt settles with the Erie Clique

7

Speaker reluctantly appointed a committee, placing on it Assemblyman Alexander Frear. Glenn protested that Frear was the very man who had attempted to bribe him. Frear denied it, and the committee thereupon proceeded to censure Glenn, who eventually resigned from the legislature in disgust. Meanwhile, in the early morning of April 15, 1868, when the Erie's Buffalo express to New York was rounding the curve at Carr's Rock near Port Jervis, four sleeping cars snapped their couplings, jumped the track, and dropped off a cliff. They landed with shattering impact in a ravine 50 feet below. All the cars were heated with coal stoves, and presumably one of these tipped over, for one car immediately burst into flames, roasting its occupants to death. The final toll was 40 dead and 75 injured, many permanently. The clique claimed that a half-witted man named Bowen had derailed the cars deliberately, but an investigation later revealed that the condition of the tracks and equipment was as bad or even worse than the superintendent had reported. Soon thereafter, to the horror and indignation of those legislators who still were trying to force up the price of a vote, Vanderbilt suddenly withdrew his opposition to the clique's bill and immediately cut off the distribution of free drinks in his Albany office. The price of a vote swiftly dropped to $100 and then to nothing, for the clique, which had distributed among legislators an amount estimated at $soo,ooo, had the votes it needed. Vanderbilt apparently was defeated. Actually, back in New York he had succeeded in separating Drew from Fisk and Gould and was making a separate settlement with him when the other two, discovering what was afoot, hurried back across the Hudson and crashed the negotiations. Under the terms of the final settlement Vanderbilt received $3,75o,ooo for his "worthless" shares of Erie stock, now legitimized by the legislature, plus a bonus of $1,ooo,ooo in cash for the trouble he had been caused. Also, two of his lieutenants received $429,500 to cover their losses in Erie stock speculations during the

8

Causes and Conflicts

previous winter. Drew, Fisk and Gould kept most of their profits of the winter, which had run into the millions, and gave up almost nothing in return, for all but the smallest part of the settlement was paid out of the Erie's treasury. The forty-one lawyers who had defended the Erie and its directors received fees totaling $334,416, of which Field's firn1 of four lawyers received $48,z8g. Their fee perhaps was earned, for the firm had worked on almost nothing else for six months, including weekends. Some of the other fees, however, such as $3o,ooo to exJudge Edwards Pierrepont and $zg,ooo to Seward, were large for the time, considering that the legal work involved had been completed in a few weeks or months. But even these fees were minuscule compared with the $15o,ooo awarded to another lawyer, Peter B. Sweeney, whom Judge Barnard had appointed a receiver of the Erie. Sweeney had done nothing, for there was nothing to do beyond accepting the appointment, and the idea of being appointed a receiver became a public dream in which thousands shared. Sweeney's only qualification for the job, so far as anyone could see, was his friendship with "Boss" Tweed, who controlled Tammany Hall and through it the city government. Everyone knew Tweed was a man who liked to do favors for his friends and asked in return only a little money or support at the polls. Fisk and Gould recognized this and, dumping Drew, put Sweeney and Tweed on the board of the Erie. With them city politics entered the business struggle and received its reward, just as had state politics in the bribery of the legislature. Though perhaps the majority of the people in the city, state, and country knew little and cared less about what had happened in the struggle between Vanderbilt and the Erie clique, a minority were perturbed. Charles Francis Adams, Jr., analyzed the events in the American Law Review, 0 newspapers published indignant 0 "The Erie Railroad Row," in issue of October 1868. Adams explained, "This paper has been entitled the Erie railroad 'Row,' simply because the litigations which disgraced the New York courts in the spring of 1868, and which arose out of the operations ~! those contending for the control of that road, are deserving of no other name.

]ames T. Brady's outburst at Barnard

g

and questioning editorials, and privately many citizens began to debate whether all was well with the American republic. Their questions and doubts naturally turned most on the business aspects of the struggle which, despite the settlement, continued. But as the business maneuvers gave rise to more injunctions, more receivers, more fees for lawyers and, apparently, more bribery in government, what Adams called "the extraordinary perversion of the process of law" also continued. And through it all the legal profession distinguished itself more by what it did not do than by what it did. The previous summer, in July 1867, a lawyer had published anonymously in the North American Review a detailed attack on the corruption of judges in New York City. The article had caused a stir partly because of the precision of its examples and partly because its author was reputed to be Thomas G. Shearman who, as Field's partner and chief lieutenant, was considered to be one of the lawyers contributing most to the law's "extraordinary perversion." But nothing came of the article, beyond more talk. 2 The following year one of the city's most distinguished lawyers, James T. Brady, caused a sensation in legal and political circles when one day he lost his temper in court. He had been crossexamining a receiver appointed by Judge Barnard in a hearing before the judge and had grown exasperated at the way Barnard constantly helped his appointee to evade the questions. Finally Brady turned directly to Barnard and, with arm pointed at him and in a ringing voice, all but accused him of joint corruption with the receiver. Barnard, who ordinarily was very saucy, fell silent and paled as Brady insisted that he made his statement regardless of consequences, and that in the interest of the profession and in vindication of the court, he was not only ready to make a personal sacrifice, but that he should appeal to all honest men and all courageous lawyers to aid him in driving from power those who were degrading the administration of justice. At the time, Brady was president of the New York Law Institute, an organiza-

10

Causes and Conflicts

tion to which most of the leading lawyers of the city belonged and which, although it primarily offered a library service to its members, plainly could be the rallying point of a movement for judicial and legal reform. But nothing more came of Brady's outburst than of the anonymous article. No group of lawyers organized to make an issue of honesty in the city's judiciary or to support Assemblyman Glenn in the state legislature; no committee formed to protest the appointment of Sweeney or of any other receivers who were being awarded huge fees for doing nothing; and no committee, either within or without the Law Institute, advocated changes in the law which had permitted the conflicting injunctions to be issued. 0 The failure of the lawyers to act in so many areas which seemed peculiarly their own inevitably contributed to the idea, which was gaining ground with the public, that justice in New York, city and state, was becoming a farce. Some laymen, like Adams, reacted to the idea with indignation; others with wit. The editor of the Brooklyn Memorial Church Chronicle, for example, published the following in December 1868: For the benefit of those of our readers who have not been willing to risk their brains in endeavoring to unravel the intricacies of the Erie Railway litigation, we have compiled a synopsis of one day's proceedings. At 3 o'clock A.M., Judge Bright, sitting up in bed with a lawyer on each side and two at the foot, signed a perpetual injunction, restraining one half of the directors from doing, saying, thinking, " Matthew Breen, however, who recounts the Brady episode in his Thirty Years of New York Politics, Up-to-Date, thought it "the first, forward step in the fight against the corrupt Judiciary," and believed that it was the seed from which later flowered the Association of the Bar of the City of New York. It is possible, but seems unlikely. The episode took place early in 1868. Brady died on February g, 186g, and the call to form the Association did not go out until December 1869, or at least eighteen months after Brady's outburst. By then, it seems likely, other events would have had a more direct bearing on the birth of the Association. Nevertheless, if Brady was not one of the Association's founding fathers, he certainly was one of its godfathers. Matthew P. Breen, Thirty Years of New York Politics, Upto-Date (New York, published by the author, 1899), pp. 320, 394·

Comment in a church chronicle

11

or dreaming anything about the road or the company, for all time to come, and appointed John Smith receiver. At 7- Judge Sharp, in slippers and dressing gown, issued a similar order as to the other half of the directors, vacating the first, and enjoining Judge Bright from granting injunctions in bed. At 9- Judge Smart opened court in a street car, and set aside the previous proceedings, and enjoined everybody from doing anything, and appointed John Jones receiver. At 10 - In open court, at the Hall, the whole matter was argued before Judge Wise, by twenty eminent counsel on each side, upon affidavits so voluminous that they had to be left in the street, and brought in by instalments as they were to be read. To expedite matters the Judge allowed ten different attorneys, representing ten conflicting interests, to read their affidavits at the same timehe meanwhile writing his opinion. The argument concluded, and the court took the papers and ordered them to be carted up town to the court's private residence. By noon, every judge in the city had granted an order in the premises, each appointing a different receiver, each removing every other receiver, and each enjoining every other judge from signing any more orders. By three o'clock every Supreme Court Judge in the state, about one-half of the County Judges, and several Justices of the Peace in the country towns, had followed the example of their city brethren on the bench, and granted orders of similar nature, summarily and finally disposed of all the affairs of the Erie Railroad. The next morning every arriving train was loaded with Erie Railway receivers, coming down to New York to take possession of the road. Had each taken a rail they would have used up the track pretty effectually, from New York to Buffalo. But we only promised the record of one day's proceedings; we are getting into the next. We enjoin ourselves. 3 When such an article could appear in a church journal, clearly the law and lawyers, as well as the judges, were falling into disrepute. But though an ever increasing number of lawyers were upset at the trend, none seemed to have any plan for reversing it beyond writing letters to the newspapers calling for a public meeting of indignation and review. In response to some of these

12

Causes and Conflicts

the New York Times on June 20, t86g, published an editorial stating: The true remedy is not in a public meeting, but in a permanent, strong and influential association of lawyers for mutual protection and benefit. In London and Liverpool such associations have been found necessary and effective. They are known, we believe, as "The Benchers," and are composed of the most prominent, able and independent members of the profession, and wield so powerful an influence that the Judges are compelled to pay that regard to their collective power which they fain would deny to that of the individual members. Such an organization is sadly needed in this City; and if the respectable members consult their professional interests and expectations they will form one at an early date. Individually each lawyer is powerless to resist the influence of the Judges; there is virtually a judicial "ring" in this City, and always will be, as long as the Judges are chosen by the present constituency. The only protection of the members of the Bar is in united action and organization. But for the time being, at least, no one took the advice, and soon another Erie row had erupted which brought the law and lawyers into even greater disrepute. This time Fisk and Gould played Vanderbilt's part and attempted to win control of the Albany & Susquehanna Railroad, which ran from Albany to Binghamton, New York, where the Erie had a station. Compared with the Erie, the Albany & Susquehanna was short, only 142 miles, but it was the same gauge, pierced mountainous country, and if controlled by the Erie, through Albany could give the latter an outlet to New England. Once again there was a shower of injunctions. On the Erie's side all were issued from New York City, where Field and Shearman applied again and again to Judge Barnard, who, now that Tweed was on the Erie board, favored the Erie. On one occasion Field and Shearman even called Barnard down from Poughkeepsie to sign an order because they preferred to deal with him rather

The fight at "the Long Tunnel"

13

than one of his fellows. Each time, however, the upstate lawyers countered with orders and injunctions from their local judges who were determined that a New York City judge, one who had a reputation for corruption and whose district included not one rail of the road in dispute, should not decide the issues involved. As before, the incidents were sensational and bloody. Judge Rufus Peckham of the Supreme Court in Albany issued an order punishing Gould and Fisk for contempt of previous orders, and the president of the Albany & Susquehanna, in order to be sure the writ was served promptly and properly, had his son authorized to go to New York to do it. But the writ was never served, for the day after the son arrived in the city, his body was found floating in the Hudson. Later, physical possession of the raih·oad was almost determined by a battle involving 1,100 men. From Albany, the Albany & Susquehanna group had launched toward Binghamton a train loaded with burly workmen some of whom had guns, a sheriff with a fistful of injunctions for officials along the track, and a lawyer to explain the injunctions. From Binghamton some hours later the Erie group launched a train similarly armed toward Albany. Each approached its end of "the Long Tunnel," a z,zoo-foot hole through a mountain about 15 miles east of Binghamton, and stopped. Each sent a patrol up the mountain, and each patrol discovered the other and the train at the opposite end of the tunnel. But for the moment discipline prevailed, and the patrols only exchanged threatening shouts before hurrying down to make their reports. A stalemate developed, neither side wishing to enter the tunnel. The Erie army was twice as large, but was content to sit in the sun with bottles of liquor until reinforcements arrived. The Albany men, on the other hand, were angry and determined, and in the afternoon they succeeded in cutting the telegraph wires between the Erie train and its command post in Binghamton. The

14

Causes and Conflicts

mayor of that city, meanwhile, frantically wired to Albany, imploring the governor to prevent bloodshed by ordering out the National Guard. Shortly before seven in the evening the Erie train started slowly into the tunnel. It emerged safely, though it had to stop at the end while its men replaced a rail removed by the Albany group. Then it started down the gentle grade toward the Albany train, which had gotten up steam and now was puffing toward it. Whistles shrieked, but both trains continued to accelerate. Just before they collided, the Erie engineer set his brakes and jumped from the cab. There was a shattering crash, and the front wheels of the Albany engine jumped the track. The Erie engine, though it remained upright, had its cowcatcher, headlight and smokestack wrecked and its cab pierced by a bullet. On both sides men fell or jumped off the cars and rushed together in a brawl. They separated sometime later only when a regiment of militia approached with drums rolling. No one had been killed, but two men had bullet wounds and many others concussions and broken limbs and noses. A fight over the election of directors within a small company had proved to be more than the state's legal system could handle, and the governor was forced to order the National Guard to operate the railroad. Yet still the legal fight went on, as twenty-one suits progressed through the courts. In September each of the opposing sides elected a board of directors and promptly sued to have its rival declared illegal. Finally the state's attorney general brought suit in the Supreme Court in Rochester to determine the rights of the two sides. As the action was equitable in nature, there was no jury and no possibility of a failure to reach a verdict. Judge E. Darwin Smith heard all the evidence, argued by Field on the Erie's side and by an upstate lawyer on the other. The testimony convinced many that the law had become, as Adams proclaimed, "some monstrous parody" of itself, "a Saturnalia of bench and bar." The case was argued in the last days of November 186g, and

The call for organization

15

Judge Smith reserved his decision for several weeks in order to study the testimony. Meanwhile in New York the Times in an editorial on December 16 again called on the bar to organize: "If it be the supineness, the guilty silence of the lawyers, as officers of the people's courts, which have brought us to our present pass, it is their reawakened public spirit and activity which must help us back to a better state of things; we must again proclaim that the bar must lead the way." Shortly thereafter, or perhaps at the same time but unknown to the Times, there began to circulate for signature among certain lawyers in the city a document which later came to be known as the "call for organization." Written in longhand on ruled white legal paper and acquiring blots of ink as it passed from hand to hand, it read: The undersigned Members of the Bar of the City of New York, believing that the organized action and influence of the Legal Profession, properly exerted, would lead to the creation of more intimate relations between its members than now exist, and would, at the same time, sustain the profession in its proper position in the community, and thereby enable it, in many ways, to promote the interests of the public, do hereby mutually agree to unite in forming an Association for such purposes. And we do hereby appoint Messrs. James C. Carter, Albert Matthews and Edmund Randolph Robinson, a committee to call a meeting of the subscribers at such time and place as may be designated by said committee, at which meeting measures shall be taken for the organization of the proposed Association. New York, December, 186g. By the end of January 1870, more than zoo lawyers had subscribed.

Chapter 2

is known with certainty about the call for organization- not the date on which it was issued, not the manner in which it was circulated, and not even the identities of the men whose meetings and discussions had led up to it. Where, for example, were the preparatory meetings held and who took a leading part in them? And why were the Times and other papers kept in the dark about it? Today no one knows. So many uncertainties about the origin of an organization are unusual and suggest deliberate concealment on the part of those who proposed the Association. A reason for this may have been the fear of retaliation from the bench. In the writings of the day the remark sometimes was made that any lawyer attempting to lead a movement to reform the city judiciary would endanger his practice. The average client, it was stated, considered most of the judges to be corrupt, at least to the extent that they favored certain lawyers, and a client therefore was inclined to take his work to lawyers "in favor," a position any reformer would forfeit. Mter a hundred years it is impossible to judge the reasonableness of this fear, but certainly at the time it was discussed openly as a possibility. But even later, when the Association was safely established, remarkably little about its origin emerged. The best source of information is William J. C. Berry, the Association's librarian from May 1870 to September 18g6, and assistant librarian thereafter until March 1902. He was a chatty man, a lawyer himself and most enthusiastic about the Association. In a little book he wrote to CuRIOUSLY LITTLE

Certain mysteries about the call

17

commemorate its first quarter-century and also that of its library, 1 he refers to the signatures on the call as the "Roll of Honor" and closes the list of names with "Lest We Forget." He might be expected to be full of pious anecdotes reflecting credit on the founders. But he is remarkably vague. "During the year 186g," he states, "conferences were held at the home of Aaron J. Vanderpoel and at several law offices, and in December of that year the following call was sent out." But he never tells which law offices and, later, in a short sketch of Vanderpoel he mentions nothing more about the conferences though he devotes several paragraphs to praising Vanderpoel as "a legal bibliognost in the broadest sense of the word." Even more strange, the much longer official "Memorial" 0 of Vanderpoel, written by Edward Patterson in 1888, states merely, "Here we will remember him as one of the founders and most zealous supporters of the Association of the Bar." 2 Possibly one office in which meetings were held was that of Man and Parsons. Albon P. Man was the Association's fust treasurer, and his Memorial, written in 1892 by his partner John E. Parsons, states that Man "took an active part in the conferences preliminary to its formation." 3 Berry, plainly copying from Parsons, repeats the remark without adding anything to it. But beyond these few hints, nothing more was revealed, and the history of those preliminary meetings continues a mystery. There is a mystery, too, about who circulated the call. As before, Berry offers the best clues. In his book he states that Edmund Randolph Robinson, one of the three men appointed in the call's text to set the time and place for a meeting of its subscribers, had "the duty" of circulating it. 4 A similar statement about Robinson and the call appears in the Memorial of Wheeler H. Peckham,5 but as Peckham died several years after Berry's book ap• A Memorial of a member of the Association is a eulogy, written by another member and published in the Association's yearbook (or some form or supplement of it) for the year in which the member died. The Memorials differ enormously, in length and quality. A few are small masterpieces of writing and perception.

18

Causes and Conflicts

peared, the memorialist may have copied from Berry. The Memorial of Robinson himself, surprisingly, says nothing on the subject at alP Can the memorialist have thought Robinson's role in founding the Association unimportant? In fact, Berry himself may have helped Robinson to circulate the call. In a sketch of Berry, published eleven years after his death in 1912, the statement of help given is made unequivocally.7 The author, an assistant librarian of the Association, relies on the word of an "old friend of Mr. Berry." Though it seems unlikely that Robinson would have delegated the job of collecting signatures, Berry might have been the exception to whom he would have turned, for Berry in 186g was the head clerk of a wellknown law bookstore and in constant touch with the leading lawyers of the city. But if so, then it is surprising that Berry, usually so chatty, should never have mentioned this office of which he certainly would have been proud. The silence surrounding the circulation of the call, like that surrounding its origin, suggests deliberate concealment. These uncertainties about the call can be compounded, 0 but without ever touching the significance of what had happened: the meetings were held and as a result a call to organize was circulated to leaders of the bar. A more important question is raised by 0 The problem of its date: Every writer heretofore has said it was issued, i.e., began to circulate, in December 1869. Yet the document bears the date January 1869, with a large space between the month and the year, as if for the insertion of a day's date (see illustration, following p. 174). This history has followed the tradition (even to the extent of reporting the date incorrectly, on p. 15, to avoid confusion) on the ground that it is less reasonable to suppose that the call was either prepared eleven months in advance or circulated without trace than to suppose the man who wrote it out made a mistake about dates that many people do as they pass from one year to the next. He wrote 186g because he was in December of that year, though he should have followed January by 1870. The problem of its whereabouts: Twice in the Association's history the call has been lost, in the sense that no one knew where it had been put for safekeeping. In 1922 it was found among the papers of a former treasurer who died that year, and in 1969 the discovery of a reference to that previous finding led to its rediscovery in the treasurer's safe deposit box. ( See Minutes of the Executive Committee, June

7, 1922.)

The New York Law Institute

19

the absence from the signatures on the call of one of the city's foremost lawyers, Charles O'Conor, who had succeeded Brady as president of the New York Law Institute. That organization had been founded in 1828 by New York's most famous judge, Chancellor James Kent, 0 who himself had written the charter under which it had been incorporated: "for Literary purposes, the cultivation of legal science, the advancement of Jurisprudence, the providing of a Seminary of learning in the Law, and the formation of a Law Library." In its early years it had attempted to achieve several of these purposes and had intended also to create a body of rules to "guard the purity of the profession." Soon, however, the members had concentrated their efforts on the creation of a circulating law library and, except for an occasional memorial service for one of their fellows, they had continued to do so. Nevertheless the Law Institute, founded by Chancellor Kent, seemed to many lawyers in the city, particularly to older ones, to be the natural organization to use to purify the bench and bar. For some weeks this obvious alternative evidently threatened the organization of a new association for lawyers. The Memorial of Wheeler H. Peckham, who later was president of both the Association and the Institute, recounts how his "inclination at first was adverse to connecting himself with the project, his reasons being that there was no occasion for the establishment of a legal club as a social institution and that the other objects contemplated could be attained through the then existing Law Institute." 8 But a few weeks later Peckham changed his mind and signed the call, and the proposed association safely had passed a hazard of its organization. Peckham never listed the reasons which caused his change of mind, but certain facts, evident today, were important then and probably influenced him and others like him. These same facts, 0 "Chancellor" because he sat in the state's Court of Chancery, which was abolished in 1846 when its jurisdiction was merged with that of the New York Supreme Court.

20

Causes and Conflicts

too, were probably the reasons why a new organization was proposed rather than use made of the one existing. First, and obvious to all, the lawyers of the city needed another library. When the Institute had been founded in 1828, the city extended about as far north as Washington Square, and everything above 14th Street was definitely rural. The Institute's library, located downtown near the courts, could serve its members well, for their offices were all clustered nearby. But by 186g the city was reaching north along the sides of Central Park, and a library somewhere north of 14th Street seemed a necessity. In a sense the general agreement on this point was symbolized by the presence among the Association's earliest organizers of Aaron J. Vanderpoel, an officer of the Institute and the man responsible for the direction of its library. It is inconceivable that Vanderpoel, in whose house some of the meetings preliminary to the call were held, would have fostered a project likely to endanger the Institute's library, and his name high on the list of those signing the call must have been taken by other lawyers as a guarantee that no threat to the existing library was intended. Reasons of perhaps greater importance, however, lay in the character and career of Charles O'Conor who, as president of the Law Institute, would lead the movement for reform if the Institute was to be the organization around which the reformers rallied. O'Conor was a man unto himself in many ways. He practiced law without partners; 0 he had not married until fifty, and soon thereafter had separated from his wife; and before and during the Civil War he had maintained publicly that slavery was "necessary and beneficent." Mter the war he had served with Horace Greeley as surety on Jefferson Davis' bail bond and later had volun" He did have assistants, however, of whom one of the most famous was Christopher Columbus Langdell. On graduating from law school at Harvard in 1854, Langdell came to New York and started his practice by preparing cases for O'Conor in the New York Law Institute library. In 1870 he left the city to become the first dean of the reorganized and expanded Harvard Law School.

Charles O'Conor

21

teered his services to defend Davis, which he did with success until the government dropped the case. 0 These last, unquestionably, were acts of principle and courage, but they made him unpopular with many and perhaps increased the isolation in which he lived and worked. Yet he was a well-known figure in the city even among persons who never went near the courts, for almost every day he would walk all or part way up Broadway from his office on Wall Street to his house in Washington Heights. People along the way would watch him, a tall, spare figure dressed in the ill-fitting clothes of the time with a rather rusty stove-pipe hat tilted back on his head. Few, however, would speak to him. His gait was purposeful, though a little shambling, and something in his appearance suggested that his mind was elsewhere than on the life around him. Indeed, close to, he could be rather terrifying, with piercing gray eyes, a square chin fringed with white whiskers and a long face which he seldom relaxed in a smile. Once when a reporter came to his office to ask him a question he did not wish to answer, he simply rose from behind his desk and began to walk slowly and silently toward the man. The reporter backed away, step for step, until he found himself outside the office with the door closed firmly in his face. In court, the logic of O'Conor's arguments generally was unassailable, and his industry in preparing his cases, perhaps partly because of his solitary life, extraordinary. But in court, too, the emotions which in daily life he plainly tried to control or even to conceal frequently escaped him in the form of vehemence and sarcasm. He was famous for the number of cases he had won, but he was famous, too, for his extraordinary lack of tact. Lawyers *James T. Brady was co-counsel with O'Conor. The government's case against Davis was postponed constantly, partly because Johnson's cabinet could not agree on the necessity or procedure of it. William M. Evarts, when he became Johnson's Attorney General, worked steadily, and in the end successfully, to have the case dropped. Technically this was achieved in January 186g when Evarts entered a nolle prosequi; politically it was achieved on December z5, 1868 when Johnson finally issued his amnesty proclamation designed to "close out the rebellion."

22

Causes and Conflicts

greatly admired him, but for the most part without affection, though the more understanding could sympathize with the way his character had developed. He was the son of an Irish emigrant. His father, an educated man, had been forced to leave Ireland after the rebellion of 1798 and, coming to New York, had attempted to support himself by writing articles. Life had been hard, and O'Conor, born in New York in 1804, had worked his own way out of poverty and manual labor, probably at considerable emotional cost. His few good friends insisted that his cold, forbidding exterior was deliberately contrived. One, in an effort to explain him, described how on a summer evening in 1867, on the night boat to Albany, he and O'Conor had stayed on deck talking long after others had gone to bed. Their conversation turned to Thomas Addis Emmet, the great Irish barrister who, like O'Conor's father, had been forced to leave Ireland after 1798 and make a new career in New York Suddenly O'Conor began to quote a famous passage by William Sampson° about the "Irish Emigrant": "He was born in a land which no longer was his; in the midst of plenty his children ate the bread of poverty; he toiled for a landlord whose face he never saw; he heard there was a great country beyond the sea where. . . ." The friend listening to O'Conor was startled and turned to look directly at him: "I felt that his emotion was increasing and his voice tremulous. He had now lost control of himself, and suddenly rose. The light shone full on his face. I saw that tears had started from his eyes. Partly regaining his habitual control, he said: 'You must forget this. Pathos always overcomes me- for that reason I avoid it.' " 9 O'Conor himself, unlike his father and Emmet, was not an im• Sampson ( 1763-1836), like Emmet, was a refugee from the Irish rebellion of 1798. He practiced in New York and for a time in Washington, D.C. He was famous for his wit, his writings and his criticism of some aspects of common law. He has been called "the earliest of our lawyers who raised his voice in favor of codification." See an article on him by Irving Browne in The Green Bag, An Ente1taining Magazine for Lawyers, Vol. VIII, No.8 (August 1896 ).

William M. Evarts

23

migrant, yet in one respect at least he felt himself penalized for his background. All his life he had hoped to hold public office in the state or federal government, but except for fifteen months in 1853-1854, when he served as United States district attorney for the southern district of New York City, he always failed to win the appointments or elections. He blamed this on the fact that he was the son of an Irish immigrant and a Roman Catholic. Now when he was at the summit of his career and president of the Law Institute, the organization of a new bar association must have seemed like still another repudiation. He, as well as Wheeler H. Peckham and others, must have wondered why a new organization was necessary- and in what way the man who plainly had been picked to be its first president was better equipped than himself to lead a movement within the bar for reform. This man was William M. Evarts. His name appeared first of those who already had signed the call when it was issued, and no one can have doubted that he had been consulted in advance, had been urged to accept the presidency of the new association when organized and had agreed to do so. He was younger than O'Conor, being only fifty-two to O'Conor's sixty-six, and presumably would have more energy for what everyone expected to be a long, hard battle. As a lawyer he was no more distinguished than O'Conor. But in every other respect his career had been very different, and so too was his personality. He was a New Englander. His father, Jeremiah, had edited a Congregational paper in Boston and his mother had been the daughter of Roger Sherman, who had signed the Declaration of Independence for Connecticut. Like his father and grandfather, Evarts went to Yale and while there helped to found the Yale Literary Magazine, which is still published. Mter studying law privately for a year, he went to Harvard Law School and then in 1840 came down to New York to seek his fortune. He arrived with a letter of introduction to Chancellor Kent which led him eventu-

24

Causes and Conflicts

ally to Daniel Lord, who ranked with O'Conor and Brady as one of the city's leading lawyers and who had John Jacob Astor among his clients. Within a year Evarts had opened his own office, largely on clients sent to him by Lord. It was an easy beginning. o As his career developed, he played the part in political life which O'Conor would have liked but failed to achieve. For Evarts it seemed to come naturally, almost inevitably, although not without occasional setbacks. Like most New Englanders he opposed the extension of slavery within the union, and as the Republican party of Seward and Lincoln developed, he developed with it both as a lawyer and as a national figure. In 186o, for example, the governor of New York appointed him to represent the state in the Lemmon Slave Case, which was causing a furor across the country, for at issue was the position of slaves brought into the North. The facts were simple. In 1853 Mr. and Mrs. Jonathan Lemmon had brought eight slaves from Virginia to New York, intending soon to take them to Texas. When the slaves were discovered secluded in a house on Carlisle Street, sympathizers had them released on a wTit of habeas corpus and arranged for them to be sent to Canada. At issue seven years later, as the case came on for argument in the Court of Appeals, was the question whether a slave in transit through a free state was a free man or was still a slave under the laws of the slave state of his owner. O'Conor represented the Lemmons, and as both he and Evarts argued the side in which each emotionally believed, their exchanges were tense and exciting. The court decided 5 to 3 for Evarts, and the case, involving as it " A few years later, in 1845, Daniel Lord formed the partnership of Lord, Day and Lord with his son-in-law, Henry Day, and his son, Daniel Lord, Jr. This firm, which still continues, is said to be, and probably is, the oldest firm in the city retaining its original name. The Lords, father and son, were distinguished socially as well as legally and, in the opinion of some, took themselves rather too seriously. Once when O'Conor was attending the Court of Appeals, he identified the lawyer who was speaking by growling in response to an inquiry: "That is Daniel Lord, Jr.,- he adds Jr. to his name to distinguish him from the Lord Almighty." Theron G. Strong, Landmarks of a Lawyer's Lifetime (New York, Dodd, Mead, 1914 ), p. 225.

Evarts at the Johnson Impeachment

25

did a national issue and a victory over O'Conor, made Evarts a national figure. Shortly thereafter he led the New York delegation to the Republican convention in Chicago. But the nomination of Lincoln rather than Seward on only the third ballot was a stunning surprise and required him to make an impromptu speech of concession in place of the prepared one of victory. Nevertheless, the speed with which he leapt up on the secretary's table and the grace with which he made the nomination unanimous, though he was bitterly disappointed, was noted and approved by many. Yet for Evarts as well as Seward the convention was a defeat, and for Evarts, at least, it was followed soon by still another, even more personal. In contending with Horace Greeley for the seat in the Senate which Seward had resigned to become Lincoln's Secretary of State, the two men fought each other to a stalemate, and the nomination by the New York legislature, as the procedure then was, went to a compromise candidate, Ira Harris. Yet in this defeat Evarts, perhaps, was fortunate, for he could have done little in the Senate during the war, and by continuing his career as a prominent lawyer without political office he later was free to take part in one of the most extraordinary jobs ever offered to an American lawyer: the defense of a President in an impeachment proceeding. Evarts was only one of five lawyers who undertook to defend President Andrew Johnson, but as the trial progressed in the Senate chamber of the Capitol, he soon took command. He cross-examined most of the witnesses, and he made the final summation. This last, in the style of the day, was a major forensic effort. Evarts spoke for fourteen hours spread over four consecutive days. At the start of each day's hearing he would lay a dozen or so large envelopes on the table before him, and as the argument advanced he would open another envelope and spread its contents out before him. But these were almost entirely notes. The greater part of his speech was extemporaneous, and there was never any hesitation or delay.

26

Causes and Conflicts

As he stood by his counsel's table, facing the assembled senators and Chief Justice Salmon P. Chase, who was presiding, he looked the part of an orator. He was relatively short and very slender, but his large head, long hooked nose and projecting chin gave him the face of a Cicero. His voice was thin, but he spoke clearly and took trouble to vary his pace, mixing the serious with the comic, simple speech with flights of fancy, sparking them all with frequent sallies of wit and, on occasion, devastating sarcasm. He gesticulated freely. His favorite posture was an erect stance with his left hand in the back pocket of his frock coat while with his right, in which he generally held his gold-rimmed glasses, he emphasized his points toward the senators. Never did he hurry his argument or wander from his point. His manner always bespoke the seriousness of the occasion and his confidence in the justice of his cause. Toward the end of the last day he grew tired and his voice faded somewhat, but by then his steady appeal to common sense and reason had changed the atmosphere of the trial. When the roll call was taken, those favoring impeachment failed to procure the necessary two-thirds, though by only a single vote, and Johnson was acquitted. For Evarts' part in this, Johnson some months later appointed him Attorney General of the United States, and although there was some criticism of Evarts for taking the post under the circumstances, most of the country apparently thought the reward was deserved. After he had started on his duties, the New York bar honored him with a testimonial dinner at the Astor House on November 17, 1868. O'Conor presided, and he and Evarts entered the dining room arm in arm. Evarts' speech turned on the lawyer's obligation to undertake public service. It was one of his favorite themes, to which he returned on almost every public occasion and for which he was well known. When Ulysses S. Grant succeeded Johnson as President in March 186g, he appointed a new cabinet, and Evarts returned to

Evarts as a leader

Z7

New York. By then he had become one of the best-known lawyers in the country, and with his emphasis on public service, he was a natural choice for the organizers of the proposed association to approach with the offer of the presidency. Finally, there was another difference between Evarts and O'Conor, one that may have influenced Peckham and others, particularly the younger lawyers, to rally around Evarts and a new association rather than attempt to use O'Conor and the Law Institute. Evarts, unlike O'Conor, was a happy man, not in any bubbly, foolish fashion, but profoundly so. Without being in the least uxorious he was extremely happy in his marriage, enjoyed his large family and seemed prepared always to extend his interest and affection beyond it to others. He loved to talk and almost always was ready to interrupt his work to chat with a caller, particularly if the caller was a young man at the start of life; and most of the young men, after a chat or a meal with him, went away charmed. In all of this there was no artifice. His manners were naturally simple and democratic. He genuinely liked people and through his pleasure in them survived his own disappointments without becoming sour. To men attempting to organize a bar association, his charm undoubtedly appeared as an asset, just as did his reputation as a lawyer, his political connections and career and his well-known interest in public service. Though in any single category other lawyers in the city might excel him, none could equal him in combination. Whether Evarts in fact was the first to sign the call for organization, his name at the head of its list of signatures was both a lure to others to sign and a symbol of the sort of organization that would emerge: active, agreeable and talented. By the end of January 1870 enough lawyers had signed the call for the committee named in its text to announce a meeting for the purpose of organizing the association. The committee's announcement is reproduced among the illustrations following page 174, and several points may be noted about it. By today's standard

z8

Causes and Conflicts

its tone and appearance are very social, but in the days before typewriters and stencils it probably cost no more to print an attractive, polite notice than a blunt, ugly one, and a certain formality then was common in all notices, even those published in newspapers. On the other hand, the notice is extremely narrow in its aim. It is not addressed to the profession at large, calling an open meeting of all lawyers who may be interested in purifying the bench and bar; nor does it even urge those invited to bring along a friend who may think likewise. Rather, it strongly implies that any lawyer, however fervent for reform, who lacks an invitation addressed to him personally will be turned away at the door. The proposed association gave promise of being not only active, agreeable and talented but also exclusive.

Chapter 3

AMONG THE FIRST SUBSCRIDERS of the call was David Dudley Field -the author of the state's Code of Procedure, and the attorney for Fisk and Gould in their Erie Railroad suits. Like all other subscribers he had received an invitation to the organizational meeting to be held in the Studio building on February 1, but his presence there was noted by some of the others with annoyance. • Early in January, Judge Smith in Rochester had published his decision in the suit brought by the state's Attorney General to determine which board of directors controlled the Albany & Susquehanna Railroad, and he had decided emphatically against the "Erie" or "Fisk" board. In doing so, he had reviewed many of the actions which Field and Shearman had taken on behalf of their clients, and had concluded of several: "I am bound to find, as a matter of fact, that there was a preconceived scheme, combination, or conspiracy to carry the election of directors appointed to be held at the time and place aforesaid, by the use and abuse of legal process and proceedings." t • An article published in the North American Review in 1875 reported, without citing a source, "It has been stated that the name of Mr. Field was to have been excluded in forming the new association." "An Episode in Municipal Government" by Charles Wingate, North American Review, Vol. 121 (July 1875), p. 113. Later, Edward W. Sheldon, in the historical sketch of the Association published on its fiftieth anniversary in 1920, stated that there had been "a noted lawyer who by a curious misunderstanding was asked to sign the original organizational call." He did not explain further, but without question he referred to Field. Historical Sketch, 187o-Ig2o, 23 Association of the Bar of the City of New York, Reports (hereafter ABC NY Reports), 226, p. 72. t The "Erie" board of directors appealed the decision and ultimately succeeded in reversing Justice Smith on several technical points, such as the assessment of costs

30

Causes and Conflicts

For example, on one occasion Field and Shearman had procured an order for the arrest of the president of the Albany & Susquehanna Railroad and of his counsel and then had delayed its execution until just before the stockholders' meeting began, so that even though the two men were released on bail within an hour, they missed most of the meeting. Judge Smith found this action abusive and conspiratorial, as he also did a petition, granted by Judge Barnard in New York City, appointing Fisk and a friend receivers of 3,ooo shares of the corporation of which they were trying to gain control and allowing them to vote the shares to their own advantage. The order was ex parte- granted, supposedly under some pressing necessity, without giving notice to those who might be opposed so that they could argue against it. Judge Smith's charge against Field and Shearman was grave"A preconceived scheme . . . [executed] by the use and abuse of legal process and proceedings" - and no lawyer at the meeting in the Studio building can have failed to learn about it, for Smith's decision was the talk of the day. Field, indisputably one of the best lawyers in the state, was just the sort of lawyer that the others hoped, by organizing, to discipline, or even to drive out of the profession. Therefore his presence at the meeting was awkward, though Field himself, who always had an absolute certainty of his own righteousness, probably found the situation amusing. Nevertheless, although he was a famous and gifted speaker, throughout this meeting he sat silent. The meeting was formally run, and the report of it, later published by the Association, suggests that it was carefully prepared. Henry Nicoll, whose name appears second on the list of subscribers, made the opening speech, which was long and full of historical examples which must have been worked out in advance. The closing speech by Evarts was shorter and more informal but against the board alone, though it was a codefendant in a suit brought by the state. But since the higher courts refused to reconsider the merits of the controversy, Justice Smith's opinion on these was affirmed. For the sequence of decisions see Chapter 3, note 1, in the Endnotes.

Probable founders of the Association

31

neatly constructed. Two resolutions were proposed, one asking the chairman to appoint a committee to prepare a constitution and by-laws and the other asking for a committee to nominate officers. In each case the proposer, Nicoll and Dorman B. Eaton, became the chairman of the committee. Eaton's name, like that of Nicoll, appears among the first subscribers to the call, and they must be counted among the Association's creators, together with Evarts, Aaron J. Vanderpoel, Albon P. Man and Matthews, Carter and Robinson. Even if no one can say with certainty that these were the men who originated the idea of the Association, certainly they were the ones who supplied the energy to realize it. Throughout the first four years of its existence, Evarts was to be its president and Nicoll the chairman of its executive committee, and often as many as three others of the eight would be serving as members of the executive committee. Nicoll's speech, which followed the appointment of a chairman and the usual preliminaries of a meeting, bewailed the debased stature of the profession, the decline of learning within the bar and the increasing disrespect of the public for lawyers and the law. He had, however, a specific explanation of the cause: the constitution of 1846. In 1846 the people of New York had concluded a successful revolution against the landed families, such as the Livingstons and Van Rensselaers, who controlled millions of acres of land which they would not sell but only lease out subject to perpetual rents and services. Many persons had objected to this feudal system of land tenure, if only because it discouraged farmers, who could never be more than tenants, from developing the land. An "Anti-Rent" movement had developed, which throughout the first half of the century had attacked the men and means by which the landed families continued their control. The landlords' agents were assaulted, terrorized and often driven from their districts for long periods of time. The property qualifications to vote, by which the landlords were able to dominate the legislature at AI-

32

Causes and Conflicts

bany, gradually were whittled away, and cases of eviction for nonpayment of rent were taken again and again, by both sides, to the higher courts. In the courts, however, the leaseholders almost invariably lost. The best lawyers generally represented the landlords, to whom both they and the judges were apt to be related by marriage or descent. To the leaseholders and to their sympathizers, the state's leading lawyers and judges, as well as the landlords, appeared to be a small class of privileged persons determined to support a feudal system of law and land tenure in a nonfeudal country and age. The common law, about whose ability for organic growth the lawyers endlessly prated, seemed to the leaseholders to have become stuck in an era before the French and American revolutions. Through their control of the legislature, however, they could unstick it, and the convention of 1846, called by the legislature to write a new constitution for the state, was the outcome and triumph of the Anti-Rent movement. The delegates, of whom a third were lawyers or "lawyers and farmers," had gathered in a spirit of Jacksonian democracy: all privileges, such as the restricted right to practice law, and all appointive systems, such as the judiciary, were to be abolished, and freer elective systems, which the people could control, were to be instituted. As a result, before the constitution of 1846 became law, all judges in the state had been appointed; after it, all judges were elected. (See Appendix A, p. 383, for a summary of methods by which the state's judges have been chosen over the years.) Similarly, before 1846, admission to the bar required several examinations, spread over six to ten years, for a man to become first an attorney, then a solicitor, and finally a counsellor; 0 after 1846 "any male citizen" twenty-one years old with a good character and "the requisite qualifications of learning" was "entitled to admission to practice in all the courts of this State." But the waiting • As counsellor was the final rank a lawyer attained, lawyers were apt, in addressing each other, to use the title as a compliment. Many lawyers still use it in this fashion today, although not so many know the reason behind it.

Nicoll on the constitution of 1846

33

periods were abolished, and the "requisite qualifications," though still determined by the courts through examinations, were in fact very much lower. In some instances the elected judges, responding to popular or political pressures, reduced the examinations to nothing at all. (See Appendix B, p. 385, for a summary of the requirements in the state to practice law.) These changes were in every man's mind at the organizational meeting as Nicoll expounded on the reasons for an association: That Constitution, under which we still live, gave almost a death blow to the legal profession. Disastrous effects could not but flow from the organic changes made by that instrument. It is true they were not at first realized. We went along submitting to the inevitable tendency of things without perhaps appreciating how rapidly we were drifting down the current; but, gentlemen, when the gates of the Bar were thrown entirely open; when those honorable distinctions which formerly existed in the profession were abolished, when the name of counsellor ceased to be heard in the land, and when every man, from the merest tyro to the greatest and most renowned amongst us, was put on the same footing, it became a necessary result that without some link which should connect and bind the more worthy of the profession together, it must accept its destiny and be eventually destroyed. 2 The chief purpose of the Association, therefore, at least as Nicoll presented it, was literally to preserve the practice of law as a profession. And this he proposed to achieve by gathering together "all that is intelligent, all that is honest, all that is honorable in this Profession" in order that the influence of the best, reinforced by organization, might be able "to create a spirit of professional brotherhood, to create in the members of our profession a regard for the profession." The bar, he argued, as a result of the provisions of the constitution of 1846, "had been reduced to a mere collection of individuals without class or rank- a dull dreary level of enforced equality." Then he added, "Perhaps it may sound strange in a democratic

34

Causes and Conflicts

community to talk in this way, but I apprehend that, outside of political rights and relations, distinctions must exist everywhere -they are necessary for the very welfare of society." But about the judiciary and the effect on it of the constitution of 1846 Nicoll would say only, "It is unnecessary and it may be improper to speak of that now." Throughout, he kept his emphasis on the bar, and the Association which he proposed presumably would do the same. Evarts, in closing the general discussion on the purposes of the Association, was less rhetorical and more specific. In a sentence having its origins in the scandals of the Erie litigation and in Judge Smith's decision concerning part of them, he stated: Why, Mr. Chairman, you and I can remember perfectly well (and we are not very old men), when, for a lawyer to come out from the chambers of a Judge with an ex parte writ that he could not defend before the public, before the profession and before the Court, would have occasioned the same sentiment toward him as if he came out with a stolen pocket-book. 3

The remark touched off greater applause than any other in Evarts' speech, and undoubtedly his audience of lawyers murmured and clapped as a way of delivering their personal and professional rebuke to David Dudley Field. Elsewhere in his speech Evarts was less pointed, but unlike Nicoll he did not hesitate to talk in general terms about the judiciary, calling it "that weakest portion of our political system, that portion that has, or should have, no patronage or influence and no political authority," and suggesting that because of its traffic with these it was falling into disrepute. In closing, he stated firmly that the proposed Association should aim to "restore the honor, integrity and fame of the profession in its two manifestations of the Bench and of the Bar." Clearly he proposed an Association with a wider purpose than had Nicoll. This uncertainty as to the breadth of the Association's purpose,

Uncertainty on reforming the judiciary

35

posed at its very £rst meeting by its future president and future chairman of the executive committee, was never wholly resolved. Two weeks later, when the subscribers adopted the constitution prepared by their committee, article II merely stated: The Association is established to maintain the honor and dignity of the profession of the law, to cultivate social intercourse among its members and to increase its usefulness in promoting the due administration of justice. 4 Purposes as set forth in charters are apt to be vague, and it may well have been inopportune in Febmary 1870 to say more. But the vagueness, while giving the Association's future leaders freedom to act or not on problems involving the judiciary, also ensured that the Association would never be free of debate among its members as to its purpose. Always in the next hundred years, whenever a problem arose involving the judiciary, there would be two groups: one following Evarts' intention and urging action, and the other, like Nicoll, arguing that action was inappropriate, or at least inopportune. At the initial meeting, of course, the issue was not yet clear-cut. The main point of both Nicoll's and Evarts' speech was that an association should be organized, and the specific actions of reform which would raise the issue had not yet been proposed. The sentiment of the meeting, however, clearly inclined toward the broader view, and for this a blunt and rather £ery speech by Samuel J. Tilden was partly responsible. Tilden had listened to the £rst few speeches and had risen to leave when Nicoll crossed the room and asked him to speak. 5 This was rather special attention, but Tilden was not only an outstanding lawyer; he was also state chairman of the Democratic party in New York, and the Democrat who, in 1868, had managed Horatio Seymour's campaign for the Presidency. He had, therefore, political connections across the country and political power both at Albany and in the city. Further, as a lawyer and as a

36

Causes and Conflicts

politician he had already collided with Boss Tweed and, both times, had defeated him. Future collisions, because of the kind of Democrat Tilden was, seemed inevitable. He was born at New Lebanon, New York, in 1814 and in childhood became a protege of Martin Van Buren. Thereafter he was a member, though a humble one, of the Albany Regency. He was fourteen when Jackson became President and twenty-one when Van Buren did, and his thinking ever after was shaped by the enthusiasms of that time. Doubtless upstate frontier democracy, based largely on boosting real estate values, could be as corrupt as Tweed's big-city style, based on ward politics and immigration. But the differences between the two had made a battle likely between Tilden and Tweed, and one had been fought in August 186g at the Democratic state convention. At issue had been the post of state chairman, and 87 percent of the delegates, the majority of these being from upstate, had voted for Tilden over Tweed. The victory for Tilden followed by a few months another over Tweed, this time in the courts, where Tilden successfully had defended the Pacific Railroad against a "raid" by Fisk, had nullified an order appointing Tweed's son a receiver of the railroad and had persuaded the United States Circuit Court to declare all Judge Barnard's orders in the suit for the previous seven months to be perversions of justice given in bad faith. The newspapers had made much of Tilden's legal and political victories as being triumphs for good government, and in the winter of 1870, a reform movement against Tweed's predominantly Democratic "ring" would have been difficult or even impossible without Tilden. The public would not have understood it, and the movement itself would have lacked power. The lawyers at the meeting therefore understood Nicoll's concern to have Tilden speak On ordinary occasions Tilden was not an impressive speaker. He was relatively short, and his voice, unless he was aroused, tended to be plaintive and thin. The subject of reform, however,

Tilden on reasons for organizing

37

evidently excited him, for he spoke with passion. Alter a few pleasantries, he began: Sir, I came here to-night, simply because when this call was tendered to me I signed it, and thought it a duty, humble as I am, to testify by my presence here my sympathy and my approval of the general objects for which we have assembled. I do not quite concur, however, in some of the suggestions that have been made here. I do not, I mean, quite concur in them in this- that they do not quite express the ideas of their authors, or of any of us. Sir, I should be not unwilling that the Bar should combine to restore any power or influence which it has lost, except such power and influence as it may have deservedly lost. As a class, as a portion of a community, I do not desire to see the Bar combined, except for two objects. The one is to elevate itself- to elevate its own standards; the other object is for the common and public good. [Applause.] For itself, nothing; for that noble and generous and elevated profession of which it is the representative, everything. [Great applause.] Sir, it cannot be doubted -we can none of us shut our eyes to the fact- that there has been, in the last quarter of a century, a serious decline in the character, in the training, in the education, and in the morality of our Bar; and the first work for this Association to do is to elevate the profession to a higher and a better standard. [Applause.] If the Bar is to become merely a method of making money, making it in the most convenient way possible, but making it at all hazards, then the Bar is degraded. [Applause.] If the Bar is to be merely an institution that seeks to win causes and to win them by back-door access to the judiciary, then it is not only degraded, but it is corrupt. [Great applause.] Sir, I am as peaceable a man as my friend Nicoll, yet I confess that his words of peace sounded a little too strongly in my ears. The Bar, if it is to continue to exist- if it would restore itself to the dignity and honor which it once possessed - must be bold in defence, and if need be, bold in aggression. [Great applause.] If it will do its duty to itself, if it will do its duty to the profession which it follows, and to which it is devoted, the Bar can do everything else. It can have reformed constitutions, it can have a reformed judiciary, it can have the administration of justice made

38

Causes and Conflicts

pure and honorable, and can restore both the judiciary and the Bar, until it shall be once more, as it formerly was, an honorable and an elevated calling. [Applause.] I do not know, sir, in what form this is to be done. I do not know in what form this institution, which you are now initiating, is to establish itself. I have had no part in any preliminary consultation, but I am sure that you are right in taking the first step to-night, which is, to organize yourselves into a body, and then, without passion, without preconception, with deliberation, with fixed purpose, with settled design, I believe that you may go forward step by step, through the days and years that are in the future, and become a blessing to this great community of which you are a part. [Applause.] Sir, the City of New York is the commercial and monetary capital of this continent. If it would remain so, it must establish an elevated character for its Bar, and a reputation throughout the whole country for its purity in the administration of justice. [Applause.] I had lately occasion to express the opinion in private which I now repeat here to-night, that it is impossible for New York to remain the centre of commerce and capital for this continent, unless it has an independent Bar and an honest judiciary. [Great applause.] 6 This point, which was perhaps the most basic and which was made only by Tilden, is a reason why, in the years since, many men have considered Tilden's to be the best of the speeches given that evening. After Tilden finished, another lawyer spoke on the need for a library, Evarts made his concluding speech, and the meeting adjourned for two weeks to allow the committees to prepare a constitution and by-laws and to propose a slate of officers. The next morning one lawyer who had been present, George Templeton Strong, wrote in his diary: Last night's meeting (Twenty-sixth Street and Fifth Avenue, at George C. Anthon's school building) was successful. It sought to create a ''bar association" and appointed committees for that purpose. The decent part of the profession was well represented. Nearly two hundred were present, and among them was the

George Templeton Strong's diary

39

virtuous D. D. Field. Van Winkle was in the chair. Speeches by Judge Emott, Henry Nicoll, Evarts, John McKeon (!), D. B. Eaton, S. J. Tilden, and others were generally rather good, though too subdued in tone to suit my taste. But Choate and others told me that they thought moderation is best at first. I have not much hope of good from this movement, but it may possibly accomplish something."' "The Diary of George Templeton Strong (New York, Macmillan, 1952), Vol. 4, p. 273. The diary is one of the great diaries in English, ranking with those of Pepys and Evelyn. Strong started it in 1835, when he was still a student at Columbia, continued it until his death in 1875, and throughout the forty-year period recorded daily the life of a leading citizen of New York. Strong was a lawyer in the firm of Strong, Bidwell and Strong, which continues today as Cadwalader, Wickersham and Taft. He was also, at various times and for various periods, a trustee of Columbia College, the president of the Philharmonic Society, the treasurer of the Sanitary Commission during the Civil War, a founder of the Union League Club and a vestryman of Trinity Church. He had a sharp eye and at times a sharp tongue, and he described the men he met and their activities in a delightfully vivid style. He also revealed himself completely, the mean and petty as well as the good. The first excerpts of the diary were not published until 1938, when Henry W. Taft (a former president of the Association of the Bar) wrote his history of the Strong-Cadwalader firm, A Century and a Half at the New York Bar (New York, privately printed, 1938). Then in 1952 four volumes of excerpts, edited by Allan Nevins and Milton Halsey Thomas, were published as The Diary of George Templeton Strong, and the diary was recognized as one of the best accounts, in any form, of American life in the nineteenth century.

Chapter 4 Two WEEKS LATER on February 15, 1870, the subscribers of the call convened again in the Studio building, this time in a mood of anger. One of their leaders, Dorman B. Eaton, returning home late on the night of the 12th, had been beaten almost to death by men waiting for him on his doorstep. The seriousness of the beating left no doubt that it was intended to be fatal. Probably the cause of it was not so much Eaton's part in proposing the Association as his actions in attempting to reform the sanitary conditions of the city. As counsel for the board of health and also for the board of excise, his vigorous prosecutions had made him many enemies among the corrupt city officials and landlords. At the time he was, perhaps, as much as any man the symbol of good government in the city. His absence now, when it was still uncertain if he would live, from a meeting at which he was to have nominated the Association's first officers was a frightening portent of the end to which corruption, unopposed, almost inevitably would lead. The first part of the meeting necessarily was taken up with completing the Association's organization. The subscribers voted "after prolonged debate," in the secretary's opinion, to adopt "the Constitution and By Laws, substantially as reported by the Committee." Then they elected William M. Evarts president and Samuel J. Tilden the first of five vice-presidents, and in effect elected Henry Nicoll chairman of the executive committee by authorizing him to organize it. Both the constitution and the by-laws were extremely simple,

The beating of Dorman B. Eaton

41

and it is hard to imagine what caused the "prolonged" debate. The secretary did not explain his remark, and perhaps the cause was no more than an excessive fussiness over words. In any event, only two points in the constitution need to be noted: first, that the Association's name, later changed on incorporation to "The Association of the Bar of the City of New York," was originally "The Bar Association of the City of New York"; and second, that the only committees other than the executive committee to originate in the constitution were the committees on admissions and on the library. Others were to be appointed under the by-laws, and the fact that none were created for the moment suggests the emphasis the subscribers intended to put on getting new members and establishing a library. Reform, however, in the person of Dorman B. Eaton was not forgotten. As the newly founded Association's first act after organizing, its members ordered the executive committee to offer "$s,ooo for the apprehension and conviction of the person or persons engaged in such attempt [on Eaton's life], to be paid on conviction." The sum was large for an association that had not a penny in its treasury, and some members as individuals probably guaranteed it. No one doubted, as the New York Times was to suggest in an editorial on the 17th, "that some one of the persons whom Mr. Eaton has offended by his attack upon dishonesty and corruption, deliberately hired an assassin to perform this work." But a difficulty was that the two men Eaton had offended most with his attacks on corruption were James Fisk of the Erie Railroad, who was popular with the police, and Boss Tweed, who controlled them. In the end the reward was never paid. The police, perhaps quite honestly, were unable to identify any men as the assailants or to uncover any evidence of who might have hired them. But eighteen months after the event, at the trial of Fisk's murderer, Edward S. Stokes, a clue appeared. Josie Mansfield, Fisk's mistress, mentioned in testifying on another point that Fisk had told

42

Causes and Conflicts

her his men had attacked Eaton. Though Mrs. Mansfield's great reputation was not for truth, her remark confirmed for many the correctness of their suspicions. 1 Eaton eventually recovered and, gradually abandoning a full practice of law, devoted an increasing amount of his time to working for reform, sometimes through the Association and sometimes outside it. But his absence from this first meeting and his presence at later ones was always a reminder to members of the violence that hovers over corruption and attempts at reform. Eaton's beating was the darkest part of a shadow that then stretched to the highest offices in the country. During Grant's two terms as President, an assistant treasurer of the United States, Daniel Butterfield, was allowed to resign after revealing that he had used the special knowledge of his office to gamble with profit on the gold exchange; a Secretary of War, William W. Belknap, resigned after being impeached for bribery; and two Vice-Presidents, as well as many senators and congressmen, were involved in the Union Pacific Credit Mobilier scandals. In New York, Fisk and Tweed became the symbols of much that was worst in a corrupt society, just as for many men Eaton, as he continued to work for reform, was the symbol of much that was best. His career was most unusual for its day, and for many years he was second only to David Dudley Field in his influence on the statutory law of the country. In an attempt to improve the city's sanitary conditions, for example, he drafted and successfully lobbied into law a sanitary code which was copied in almost every city across the country. He served as United States Civil Service Commissioner under three Presidents and drafted the federal civil service law, known as the Pendleton Act, and also the New York civil service law, which served as the model for similar laws in almost all the other states. This kind of legal career did not become common until the 193o's. Further, he had an abiding interest in the governing of cities, which he considered the most serious problem the country had to

First months of the Association

43

face. Toward the end of his life he published a book on it, The Government of Municipalities, 2 which presented a detailed analysis, with many examples, of the problems of municipal government together with his conclusions as to their best solutions. Not content with that, by his will he left Harvard and Columbia Universities $10o,ooo each to set up chairs in the science of government and in municipal science and administration. Though he was never so famous as some of the other leaders of the Association, he had one of the great legal careers of his day. In its first eighteen months, or roughly through August 1871, the Association housed itself, founded its library and more than doubled its membership. One of its first acts was to publish an account of its organization, stating its purposes in general terms and seeking as members any lawyer, whether in the city or not, "who has the dignity and honor of his calling at heart, and who feels the necessity of the harmonious co-operation of an upright Bar and a pure judiciary in the administration of justice." Further, it hoped that "similar associations" would form in "other cities and counties" so that "from them may grow an Association of the Bar of the State of New York" But that was for the future. Membership in the Association was not cheap: there was an initial fee of $50, and annual dues were $40. But by September 1871 the Association had enrolled 493 members, of which 5 were nonresidents practicing in other cities of the state. Since the city, which then consisted only of the island of Manhattan, contained about 4,000 lawyers, the Association had enrolled almost one in eight. It was a strong beginning, particularly as the membership soon included, almost without exception, the city's most distinguished lawyers. Charles O'Conor, for example, had asked to be admitted immediately after the first meeting and along with 227 others had been elected in March 1870, in the first group admitted after the subscribers. Thereafter the enrollment was very much slower, though steady. For its house the Association in May bought for $43,000 a brown-

44

Causes and Conflicts

stone building at zo West 27th Street. The building had a basement and four floors, of which the first was fitted up as parlors and reading rooms, the second shelved for the future library, the third made into committee and conference rooms, and the fourth turned into an apartment for the future librarian. Six thousand dollars was appropriated to buy furniture for all floors except that of the library, and on June z8, 1870, the Association was able to hold its first meeting in its new house. Within six months it had become the custom to follow the meetings with refreshments, as the librarian later described them, "bountifully served." Apparently there was a punch bowl, supposedly the property of the committee on admissions, which was kept full of a punch brewed according to a special recipe furnished by the nearby Century Club. As its first full-time employee the Association hired a librarian, still another indication of the emphasis it intended to place on its library. In May, even before the new house was open, William J. C. Berry, who was to remain as librarian for twenty-seven years and thereafter as assistant librarian for another six, began work at an annual salary of $1,000 with living quarters provided. He was young, only twenty-two; at the time not a lawyer, though he later graduated from Columbia Law School; and not even, as the term was then understood, a librarian. In his own phrase he was a "lawbookseller," by which he meant that as head clerk in a law bookstore he bought and sold law books, often at auction. This bookstore job gave him some unusual qualifications. When it became known that the Association intended to establish its own "uptown" law library, a number of lawyers, young and old, applied for the job. But none could match Berry's knowledge of legal bibliography, his knowledge and skill in the book auction market, and his large acquaintance among lawyers, bookdealers and collectors of law books. The library committee considered, and rightly so as events proved, that Berry's specialized knowledge and contacts would be extremely useful in creating a library. The ease with which the Association established itself as an in-

Outmaneuvered on its charter

45

stitution with its own house, furniture and librarian, as well as pleasant atmosphere, reflects the wealth of the men who founded it. The leaders of the city bar were rich- and generous. When in May 1871 an unusually fine set of rare books came on the market at a price higher than the library committee was prepared to pay, a committee member, Elbridge T. Gerry, bought the set privately and gave it to the Association. "After this manner," Berry later reported, "many books found their way quietly to the shelves of the library." In much the same fashion pictures blossomed on the walls, and busts of eminent lawyers appeared on mantels. But in its efforts at reform the Association was less successful. It stumbled first in April over its charter. It had submitted to the legislature a proposed charter, simple and short, which the legislature was about to approve, when the Assembly, apparently on orders from Boss Tweed, added a section that the Association considered unacceptable. 0 The amendment is badly drafted, and its probable effect is uncertain. Its intent, however, is plain: to raise a shield between Fisk, Tweed and the would-be reformers by making it a misdemeanor for any lawyer who had ever been employed by the two men - and most of the lawyers had been, at one time or another - to appear in a suit against them in which the legality of their actions was questioned. This would have been the broadest possible interpretation of the amendment, and almost certainly no court would have sustained it. The Association, however, preferred not to have such a clause in its charter and requested the governor not to sign it as passed. The governor acquiesced, leaving the lawyers to continue as an unincorporated association until the next session of the legislature a year later. • The history of this is not clear. According to Edward W. Sheldon, who wrote the historical sketch of the Association for its fiftieth anniversary ( 23 ABCNY Reports 226, p. 47 ), "This unexpected check at Albany delayed the Association's plans, and was a striking illustration of the insolent and perverted spirit that actuated our Ring-ridden Legislature." But he offers no evidence that Tweed interfered directly. The history of the charter in the Assembly, however, suggests that someone interfered, and Tweed, who was himself a state senator, had reason to want the amendment and of course gained by it. The text of the amendment is in Senate Journal, 1870, p. 1014.

46

Causes and Conflicts

The following month the Association was tripped again by Tweed when it made its first move to strengthen the judiciary. In May Governor Hoffman ° was about to appoint three judges from the Supreme Court in the city to sit on the court's General Term as an appeal court, and the Association feared he would appoint judges friendly to Tweed. To prevent this it formed a committee of distinguished lawyers - Charles O'Conor, Hemy Nicoll, Wheeler H. Peckham, William E. Curtis and Joseph H. Choateto present a memorial t to the governor asking that judges from outside the city be appointed. But Tweed, hearing of this move, wired Hoffman requesting immediate appointment of Judges Barnard, Cardozo and Ingraham, three judges closely associated with him and generally considered to be among the most corrupt. The committee had to report back to the Association that its action had been taken "too late," that the governor had acted "without any opportunity given for the proposed consultation." In short, the Association had been outwitted and ignored. 3 Then in November 1870 the Association approved the appointment of three standing committees which would be the tools of reform. These were the committees on amendment of the law, on the judiciary, and on grievances- all of which continue to function today. The following month President Evarts announced the members of the committees, and presumably in a few months reports would begin to appear recommending action. But six months later, in June I8JI, Nicoll still was inquiring if the com0 John T. Hoffman had been mayor of New York in 1865 and was defeated in 1866 in the election for governor. He was reelected mayor in 1867 and 1868, and at the Democratic convention in 1868 was nominated again for governor in a speech by Tweed. This time he was elected, served two terms, 186g-1872, and dreamed of succeeding Grant as President of the United States in 1872. He was reputed to be Tweed's candidate, and a famous Nast cartoon in Harper's Weekly imagined Hoffman as President in 1872, a mere shadow beside the enormous bulk of Tweed, with a cabinet that included Fisk as Secretary of the Navy and members of Tweed's "ring" in appropriate offices. But Hoffman never was considered seriously at the Democratic convention, and Horace Greeley won the nomination over Charles Francis Adams. f A "memorial" in this sense is a statement of facts addressed to a government. It often contains or is accompanied by a petition.

Adverse comment in a law journal

47

mittees on the amendment of the law and on the judiciary "had as yet organized." The chairmen, Charles O'Conor and Wheeler H. Peckham, it seems, had not held any meetings - apparently for lack of interest among the members. This failure in the area of reform did not go unnoticed. In March 1871 The Albany Law Journal published a long editorial, really an essay, on the Association's accomplishments and organization. It concluded: The Bar Association of New York city has been in existence more than a year, and yet, so far as we can learn, has done nothing at all in furtherance of the principal avowed objects of its organization. Those objects, as set forth in article II of the constitution of the association, are: "To maintain the honor and dignity of the profession of the law, to cultivate intercourse among its members, and to increase its usefulness in promoting the due administration of justice." The results of the first year's work have been made public. The number of members is 462; the general fund is $3,280, the library fund, $1,soo, and the library contains several thousand volumes. This is all. "The honor and dignity of the profession" have certainly been very feebly maintained, if we take statements made in the public prints by prominent members of this society, and, relying upon the same authority, one would suppose that the administration of justice is no purer than it was a year ago. How far social intercourse has been cultivated we cannot say, but we presume the ''bar association" has done something here, at least, for the four hundred or so gentlemen who enjoy the advantages it confers. We say that this society has not accomplished its avowed fundamental purpose, which was, indeed, not merely to maintain, but to restore, the ancient dignity and position of the legal profession, and we believe it never will do so while operating under the regulations which now control it. The bar of New York city numbers, we believe, not far from four thousand persons. It is unquestionable, that, if this body were united, they would constitute a formidable element in our political system, and could they and their brethren throughout

48

Causes and Conflicts

the country act in concert, they would be invincible. Whatever in its unorganized condition, the bar is able to do was shown by the adoption of the amended judiciary article of the state constitution. Of all the work of the late convention submitted to the people, this article, standing alone, would find the least favor with politicians or the people. Yet the bar, as a whole, supported it, and it was carried in spite of the active efforts of politicians of both parties, and when all the rest of the proposed amendments were rejected. But, to act effectively in any direction, the whole bar must be united, and an association that hopes to accomplish the best results must be accessible to every member of the profession who is not grossly immoral. Now, this is precisely what the New York City Bar Association is not. It partakes too much of the character of a close corporation, or of what the people call a ring, to bring into sympathy with it any considerable number of the lawyers of the city.... It purports to embrace in its scheme the entire legal profession of the city of New York. Yet, after thirteen months, it contains on its rolls but little more than one-tenth of the members of that profession. No affiliated societies have come into existence as was hoped, and the influence of the organization is seen neither in court nor legislature, nor in the morals or manners of the bar. 4 The editorial went on to suggest that the Association could become effective as a tool for reform only if it lowered its dues ($50 down and $40 annually) and opened its membership to include all reputable members of the city's bar. These were arguments that would be made again and again in the next hundred years, and in 1908 would underlie the founding of the New York County Lawyers' Association. In one respect the Journal's criticism was fair. Many a citizens' committee over the years has operated out of a hole-in-the-wall office or out of no office at all, and still has achieved some reform. The Association's emphasis on its house, furniture and rare books was bound to strike many as a sign that, whatever its protestations, it would never be more than a private professional club. Yet in several other respects the criticism was unfair. The Asso-

The social side prospers

49

ciation never had presented itseH as interested only in reform. From the first its leaders had talked of the profession's need for another library in the city and for a place to meet and, by social intercourse, "to create a spirit of professional brotherhood." Nevertheless, it was the social rather than the reform aspects of the Association which prospered during its first eighteen months, and many who had watched its founding with hope gradually became disappointed.

Chapter 5 AssoCIATION in its first eighteen months fussed with pleasure over its house and library and, to some men at least, appeared to have forgotten its purposes of reform, the scandals in the city's government continually grew. Throughout 1870 rumors of corruption on a vast scale began to circulate, and even for those who doubted, an occasional fact seemed to confirm gossip. Gradually the protests of journalists, such as the Adams brothers, the public warnings of a few editors and the private laments of individual lawyers began to have an effect, and there developed among New Yorkers, as well as among others observing the city's government, a feeling that its problems were rooted deeper than merely a dishonest mayor or three or four corrupt judges. Many men found themselves wondering if the institutions of American government, particularly the principle of representation, had proved inadequate for the government of a large city. They gradually came to feel that more was on trial in New York than the local government of Manhattan Island; also called into question was the American ideal of a republican form of government for cities. One of the first men to sense this and to act because of it was Samuel J. Tilden. He acted, however, not as a lawyer nor as a vicepresident of the new bar association but as a politician, in his capacity as chairman of the Democratic party's state committee. In March 1870 Tweed, supposedly as a measure of reform, submitted to the legislature a new charter for the city, and Tilden opposed it. He had remarkably few allies: only a handful of assemblymen WHILE THE

Tilden argues against Tweed's charter

51

and senators, a reform group within the Democratic party known as the Young Democracy, the Union League Club of New York and a few of the city's newspapers, particularly the Tribune, the World and the Evening Post. 0 But most of the city's citizens and civic groups, including the Association, seemed either not to understand what was happening or not to care, and the Times even actively supported Tweed. Nevertheless, Tilden went to Albany and argued against the charter at a Senate committee hearing over which Tweed, in his capacity of state senator, presided as chairman. Tilden pointed out that under the proposed charter "self-government in the people of the City of New York is in abeyance for from four to six years." The mayor would have no executive power and the council no legislative power; the powers of both would be held by the commissioners of various departments who would be appointed by the mayor for terms longer than his own. These commissioners could be removed only by impeachment, a long and cumbersome process. In short, they would hold office for years regardless of the will of the people, for they could not be displaced by election, not even by the election of a new mayor. Today it seems extraordinary that more men and groups interested in reform did not object to the charter, but perhaps because it was pushed through so fast (in less than a month), they did not yet grasp its significance. On Aprils, 1870, the day after Tilden argued against the charter, it became law, 1 and the Times promptly declared, "Senator Tweed is in a fair way to distinguish himself as a reformer." Four days later Tweed and his close friends were appointed commissioners by the mayor, A. Oakey Hall, with Tweed taking the post of commissioner of public works, the highest public office he ever held. Offices in the city's government changed their titles and powers several times during the twenty years ( 1852-1872) that Tweed 0 The editors of these at the time: Tribune, Horace Greeley, 1811-1872; Evening Post, Charles Nordhoff, 183o-1go1; World, t-.1anton Marble, 18.34-1917.

52

Causes and Conflicts

was active in it, but no office gave him as much autocratic power and opportunity for plunder as that of commissioner of public works. Before then he had served for thirteen years on the board of supervisors, generally on the committees which were rich in money and patronage, such as "annual taxes," "court house" or "armories and drill rooms." In addition, at various times he was fire commissioner, deputy street commissioner and school commissioner, and he was elected to the state Senate three times. But probably most of those who dealt with him thought of him as "Supervisor." Except for his drive for power and money, Boss Tweed seems to have had no strong personal characteristics. He had none of Fisk·s charm or flair for gesture, none of Vanderbilfs ruggedness and none of Drew's startling religious hypocrisy. Apparently he was happily married, fond of his children and eager to live exactly like his neighbors, but on a richer scale. He had been born in New York in 1823, the son of a chair maker, and though he had conquered Albany and occasionally dreamed of Washington, it was New York that interested him. In the end money, not politics, was what he cared for, and what he wanted most out of life was a mansion on Fifth Avenue. His new charter, soon known as the "Tweed charter," gave him the chance at it. Later he was to testify that it had cost him $6oo,ooo to have the charter passed; Tilden thought it probably had cost closer to $1,ooo,ooo. Tweed had bought six Republicans for $4o,ooo each. It was part of the essence of the ring that it was a nonpartisan form of political corruption. As Tilden once stated: "The very definition of a Ring is that it encircles enough influential men in the organization of each party to control the action of both party machines, -men who in public push to extremes the abstract ideas of their respective parties, while they secretly join their hands in schemes for personal power and profit." 2 At least one good came of Tilden·s effort to defeat Tweed·s charter, and that was a determination on his part thereafter to

Tilden's anger with Tweed

53

isolate Tweed within the Democratic party and eventually to drive him out of it. This undoubtedly was partly the result of Tilden's anger with Tweed for smirching the best of what the party stood for, but after the committee hearing at which Tweed had presided, it probably also was partly personal. At the hearing Tweed, whose political sense was not always sure, had treated Tilden with contempt and had obviously tried to humiliate him, so that Tilden had turned "ashy white" and in unmistakable "suppressed rage" had left the room.'l Once outside, still shaking with anger, he had told Henry Richmond that Tweed would close his career either in exile or in jail. 4 Tilden always suffered from poor health, real or imaginary, and had noticeably less energy than most men who combine an active practice of law with politics. Though he plainly worked hard, he sometimes also was accused of being absent-minded and even lazy, and up to now his political career had been intermittent rather than continuous. But from this time on, he began to work tirelessly to drive Tweed from office. Moreover, he developed an interest in reform which eventually carried him to the governorship of the state and won him the majority of the popular vote, but not the office, in a Presidential election. The emotional basis for this uncharacteristic drive may well have been his personal anger with Tweed. In the fall of 1870, however, there was an election in the state which placed Tilden in a difficult position. He was eager to defeat Tweed and his cronies, but eager also to elect a Democratic governor and mayor. In the state convention preceding the election neither Tilden nor Tweed had been able to oust the other from his position in the party, and many of Tweed's nominations for candidates were accepted. The result was a campaign in which Tilden never spoke in favor of Tweed's men but often sat on platforms endorsing them. He was much criticized in the press for this equivocal position, and for a time leadership in the reform movement, which was just beginning, passed to others.

54

Causes and Conflicts

These were Thomas Nast, the political cartoonist for Harper's Weekly, and George Jones, who recently had obtained control of the Times and reversed its policy of supporting Tweed. The Association at this period continued to concern itself almost entirely with its house, library and internal organization. Beginning in September 187o, however, the Times focused the public's attention on Tweed's sudden wealth, asked for facts and figures on the city's finances and urged respectable Democrats to vote out the "Boss" in the coming election. In his cartoons Nast, for his part, pictured Tweed and his cronies as evil vultures fattening on the benefits of their public trusts. Although neither the Times nor Nast could prove anything amiss in the city's government, their independent campaigns stirred up a great deal of speculation. To quiet those who were beginning to wonder if he truly was bankrupting the city, Tweed invited six of its richest and most respected citizens to examine the comptroller's books. On the day before the election this citizens' committee, headed by John Jacob Astor, reported to the public that "the financial aHairs of the city under the charge of the Comptroller are administered in a correct and faithful manner." No doubt the accounts the committee had been shown were in order, but the committee's failure to break through the facade of figures did nothing in the following year for the reputations of its members as astute businessmen. 0 The next day the Democratic party won the election, and Tweed claimed the victory as a personal tribute. In the following months he allowed his friends to collect a subscription for a statue of him to be erected at the intersection of East Broadway and Canal Street, which was to be renamed Tweed Plaza. 5 He moved from a relatively small house on Henry Street to a mansion at 511 "Besides Astor, the committee members were Moses Taylor, Marshall 0. Roberts, George S. Sistare, E. D. Brown and Edward Schell. So poor was the committee's examination that Denis Tilden Lynch in his "Boss" Tweed; The Story of a Grim Generation (New York, Boni and Liveright, 1927), p. 347, suggests that Astor and the others were "only half-honest with the city" in order to avoid increased assessments on their real estate holdings.

The Springfield Republican on D. D. Field

55

Fifth Avenue, on the southeast corner of 43rd Street. At the same time he rebuilt his stables at his summer home in Greenwich and gave his daughter a wedding reported to have cost $7oo,ooo. The Times and Nast in Harper's Weekly continued to attack Tweed, and others now joined in. Even the man in the street began to wonder where Tweed had made his millions, and The Brooklyn Eagle, asking the question rhetorically, snapped in reply: "They were made in politics, by a few short years' occupancy of moderately salaried offices." 6 Unfortunately for the budding reform movement, however, during the winter of 1871 the attention of many of the city's lawyers was diverted by another issue. Once again the question of David Dudley Field's actions in the Erie litigations had come to the fore, and in a most stimulating, noisy fashion. On December 7, 1870, The Springfield Republican, then a paper of national importance, had printed an unsigned letter about the New York City bar in which the writer, apparently a New York lawyer, had described Field in such terms as "[He] is one of the ablest lawyers in New York, and has by far the largest practice. . . . His connection with Fisk and Gould secures him the favor of Barnard and other Ring Judges, though it has destroyed his reputation as a high-toned lawyer with the public; while the Bar always disliked him for his avarice and meanness. . . . His reputation as a lawyer is based upon his knowledge of legal technicality, and once during a legal controversy with the late James T. Brady, the latter dubbed him 'the king of pettifoggers,' which title has stuck with Field ever since." The letter 7 was a collection of obvious exaggerations, even falsehoods, and Field would not have seen it except that the Times printed an extract which his friends brought to his attention. Field was a man who loved controversy, and he rushed into this one. Professing not to care about the Times, "for it is the weak and wicked 'sound and fury signifying nothing,' " he started a correspondence with Samuel Bowles, the editor of the Republi-

56

Causes and Conflicts

can. After Field and his son, Dudley, had exchanged several letters apiece with Bowles, Field had the lot printed as a pamphlet, which he first distributed privately and then gave to the World to publish. 8 The letters debated the ancient question which, like the moon, is constantly renewed: Must a lawyer concern himself with the social and economic effects of his legal actions? Bowles argued in essence that Field had bad men as clients and that he helped them to rob the public; Field argued that he was not responsible for the character of his clients. Field won the exchange, at least in the opinion of most lawyers, if only because many of them had themselves been employed at one time by Fisk, Gould or the Erie Railroad. Among these were William M. Evarts, James T. Brady, Samuel J. Tilden, Aaron J. Vanderpoel, Dorman B. Eaton and Clarence Seward. On this particular issue, at least- the question of a lawyer's responsibility for the character of his client (which was taking Bowles's argument at its narrowest) -the bar as a whole, however reluctantly, was with Field." He did not rest on his victory, however. At a meeting of the Association on February 7, 187I, he offered a resolution that a memorial be addressed to the state legislature urging amendments to the Code of Procedure regarding the appointment of receivers, The problem is truly perennial. Several generations later, for example, writing of business and legal practice in the country after the Spanish-American War, Robert T. Swaine stated: "Holding companies, with inflated capitalizations top-heavy with debt, popped up like puftballs, controlling production and distribution in many industries, with little concern for the anti-trust laws. Those critics who ascribe to the corporate executives and bankers of the day and to their lawyers moral turpitude in these transactions are wrong, and unfairly so. Mistaken judgment there may have been- but not dishonesty or deliberate flouting of the law. As to lawyers, they did not regard the social and economic problems as theirs." Robert T. Swaine, The Cravath Firm and Its Predecessors, 1819-1947 (New York, Ad Press Ltd., 1946), Vol. 1, f.· 667. But a large portion of the public would ask Swaine: Why not? Why don t lawyers regard the social and economic problems as theirs? Is a man truly divisible? Does membership in the legal profession bestow a right to loose vicious dogs on the public? And the suspicion remains that many lawyers think as they do on this point because it is convenient for their pocketbooks.

The Barlow-Field exchange of letters

57

referees' fees and extra allowances. His proposal was referred to the committee on amendment of the law for action. The committee had been dormant up to now; the move for reform was Field's, and this was acknowledged at the time even by his severest critics. 9 At the next meeting on February 21, the Association approved a memorial to the legislature together with three proposed amendments to the Code. The memorial went to the heart of the problem exhibited again and again in the Erie litigations. It stated, "The system which now prevails of ex parte appointment of Receivers, not only without the consent, but against the express wishes, of the parties in interest, is one which in the opinion of this Association should be abolished." The legislature, however, refused to act on the memorial. Nevertheless, the Association's action, initiated by Field, was its first attempt to improve the laws of the state. Meanwhile the public controversy over Field's actions increased. On January 31 the Tribune had printed a long article on the Erie litigations, to which Field had replied two days later. On March 7, 8 and g the same newspaper published three very long letters, fourteen columns in all, from a lawyer, Francis C. Barlow, who entitled them "Facts for Mr. Field." Barlow had served with distinction in the Civil War and though he was only thirty-one, had risen to the rank of major-general. Now still under forty, he was widely known and respected, and he set out to do what Bowles could not; to show that even within strictly legal terms Field's actions in the Erie litigations had been dishonorable and censurable. In the opinion of many, though not of all, he succeeded. In another letter replying to a rebuttal by Field, Barlow suggested what his next step would be: "As concerns Mr. Field, I shall take care that his conduct is investigated before a body of men who cannot be deceived by small tricks and petty evasions." He meant the Association, and Field in reply insisted that Barlow

58

Causes and Conflicts

should have raised his charges before the Association in the first place. "I have now only to await his complaint before the body to which we both belong, reserving to myself the right of such further action hereafter as may be proper." The fight, which was capable of dividing the bar into hostile camps, was one that the leaders of the Association were eager to avoid. There already had been skirmishing between Field and others over the by-laws under which the grievance committee was to operate. Now, at a meeting of the Association on March 14, a member asked pointedly from the floor if the grievance committee was investigating charges against anyone. Evarts ruled, in accordance with a by-law adopted only the previous month, that "an answer would be out of order since the by-law creating the committee provided that its proceedings should be secret until such publication as therein directed." Later events, however, suggest that if Barlow or some other member actually filed charges against Field, the grievance committee by order or inclination deliberately sat on them. It was not in Field's nature to allow any attack on him to go unanswered, and his publication of his correspondence with Bowles was only one of several rebuttals. Henry Adams in "The New York Gold Conspiracy," published in the October 1870 issue of the Westminster Review, had stated that Field had "a silken halter round the neck of Judge Barnard, and a hempen one round that of Cardozo." Field's reply, a letter to the Westminster Review, appeared the following April. Now in response to the attack by Barlow, by far the most serious to date, he began to collect letters from distinguished judges and lawyers who saw nothing wrong in his actions. 10 Through a friend, he also asked George Ticknor Curtis, a lawyer who had declined judicial posts and even the ambassadorship to Britain, to review his part in the Albany & Susquehanna litigations. While Curtis was examining the record, two more articles attacking Field were published, both in the April issue of North

A difficulty in fudging Field

59

American Review. The first, "An Erie Raid" by Charles Francis Adams, Jr., recounted the contest for control of the Albany & Susquehanna Railroad and set Field and Shearman alongside Fisk and Judge Barnard as men without honor. Like Judge Smith, whose opinion he quotes, Adams was convinced that the two lawyers "had recourse in aggressive proceedings to processes of law . . . procured 'in aid of fraudulent purposes.' " The second article, "The Lawyer and His Clients," by Albert Stickney, a young member of the Association, was a direct attack on Field. It pressed the hardest of all the criticism Field had yet received by suggesting, though obliquely, a firm standard by which Field's action could be judged and also a penalty for violating the standard. Up to this time all the criticisms of Field had been weakened by the fact that the legal profession had no accepted code of ethics. The first such code in the United States was formulated and adopted by the Alabama State Bar Association in 1887. In New York in 187o, there were merely traditions of professional behavior -rules of legal etiquette rather than canons of ethics. Stickney, however, pointed out at the close of his article that the New York Revised Statutes, II, 6g1, defined certain conspiracies and imposed penalties for them: If two or more persons conspire . . . falsely and maliciously to indict another for any offence, or to procure another to be charged or arrested for any such offence, or falsely to move or maintain any suit, or for the perversion or obstruction of justice, or the due administration of the laws, they shall be deemed guilty of a misdemeanor.

While everyone was discussing Stickney's article, which had been tart, even sarcastic, George Ticknor Curtis published the results of his examination of the identical facts and legal maneuvers. He entitled it "An Inquiry into the Albany & Susquehanna Railroad Litigations of 186g and Mr. David Dudley Field's Connection Therewith," and it descended on the fire of controversy like a

6o

Causes and C onfiicts

wet blanket. It was long, three times as long as Stickney's article; it was ponderous, almost to the point of being unreadable; and it was thorough, almost to the point of concealing major with minor points. But it was plainly impartial, and it exonerated Field. Though it was only a single article it was so weighty that, put on the scale, it just about exactly balanced all the articles and letters attacking Field. No one knew any longer what to believe, except that two lawyers in possession of the same facts could reach opposite conclusions, and as if by common consent, most men pushed the issue of Field aside with a verdict of "not proven" and went on about their business. At the Association, Henry Nicoll reported at a meeting that on April 28 the legislature finally had passed a bill of incorporation for the Association, under which its name was changed from The Bar Association of the City of New York to The Association of the Bar of the City of New York 0 Evarts appointed a committee on extortions to investigate "illegal fees and perquisites" exacted from lawyers by public officials, and another committee went to Albany to urge the governor- successfully, as it turned outnot to sign into law certain amendments to the Code of Procedure passed by the legislature with the aim of increasing the patronage of the Supreme Court and removing it from control by the Court of Appeals. And in June, Evarts reported that the Washington bar was attempting to raise money to support the two daughters of Chief Justice Taney, who had died in 1864. The salary of the Chief Justice had been so low that his daughters were now in want, and Evarts suggested that members of the Association 0 Laws of 1871, c. 81g. The reason behind the change is not clear, but a secretary's minute shows that the wish to change occurred in the first month of the Association's existence. At the meeting on March 8, 1870, in the Studio building, "After an explanation by Mr. Nicoll of the reasons for altering the present name of the Association to the form proposed in the draft, . . ." the members voted the change. (Minutes of the Association, Vol. 1, p. 7·) In common speech today, however, the original form of "The Bar Association" is as often used as the other, perhaps because it seems more natural. Even in 1969 the Association's doormat still stated firmly in large red letters: "Bar Ass'n."

Tweed's offers to Nast and the Times

61

might wish to contribute." Then suddenly, early in July, everyone's attention became fixed again on the movement for reform. As long as the reformers had lacked evidence of malfeasance by Tweed and his friends, their protests had been relatively ineffectual. In April, for example, a Council for Political Reform had held a mass meeting at Cooper Union to protest a new tax which Tweed had proposed. The speakers, among them Evarts, had shown that the cost of the city's government had risen from $36,ooo,ooo in 1868 to $136,ooo,ooo in 1870. But they had been unable to discover where the money had gone. Then in the following months, as the Times and Harper's Weekly continued their attacks, the thieves fell out among themselves. Sometime in the last weeks of June former Sheriff James O'Brien, who felt that he had not received a fair share of the spoils, called on George Jones of the Times and handed him a mass of papers - transcripts from the books of the city comptroller, Richard Connolly. Two days later Matthew J. O'Rourke, a former county bookkeeper, brought in more evidence. The Times now had proof of its charges, and it announced that as soon as it had sorted over the material it would begin to publish the evidence, starting on July zo. Tweed, who had already offered Nast $soo,ooo to stop drawing his cartoons, now through Comptroller Connolly offered Jones of the Times $s,ooo,ooo not to publish the evidence. Jones, like Nast, refused. The records which the Times published throughout the summer of 1871 caused a sensation and proved beyond any doubt the frauds by which Tweed and his ring had robbed the city. Nast now made his cartoons rougher: a drawing of members of the ring was entitled "True as Steal" and the mayor, A. Oakey Hall, was dubbed "O.K. Haul." Tweed exploded one day, "I don't care what "The need of Taney's daughters was a sad and constant problem. Two years later, at a meeting on January 30, 1873, Evarts spoke of it again. There is no record of who contributed how much and when, but probably no one was more generous than David Dudley Field, who secretly sent them $500 a year until his death in 1894·

6z

Causes and Conflicts

people write, for my people can't read. But they have eyes and they can see as well as other folks." The Times challenged him to sue for libel, but he dared not. And the revelations continued as an increasing number of minor officials, angry or fearful, began to send in anonymous tips. At long last a reform movement, intelligently led and popularly based, was under way. Tweed hoped to ride out the storm, but more and more often his temper escaped him and finally one day, to a reporter who had remarked on the size and number of the revelations, he made his famous retort: "Well, what are you going to do about it?" For his part he barred Harper Brothers' books from the public schools, ordered city officials to boycott the restaurant under the Times Building, and started an action to confiscate the Times Building because of an allegedly defective title. But the public merely judged him foolish as well as crooked. At first the estimates of what had been stolen were relatively low -about 6 million dollars -but as more evidence came in they steadily rose, reaching figures ranging between 75 and zoo million dollars in later years. An exact accounting has never been possible, as from the start many vouchers and warrants were missing, and on September 11 the comptroller's office was broken into and many records were removed. The next day their ashes were found in the attic. As one example, however, it seems likely that for the New York County Court House, known as the Tweed Courthouse and still in use, 0 the following figures are about right: " It stands in City Hall Park, just north of City Hall and on the south side of Chambers Street. In 1871 it housed three courts: the Supreme, the Superior and the Court of Common Pleas. (The Supreme Court was on the second floor, and the other two shared the third floor.) When a lawyer upset a cane chair one day in Judge Barnard's courtroom after the revelations had begun to appear in the Times, Barnard supposedly leaned forward and said, "You must exercise more care how you treat those chairs, for you should remember that each one of them cost $300." See Theron G. Strong, Landmarks of a Lawyer's Lifetime (New York, Dodd, Mead, 1914), pp. 68-70. Today the building houses part of the city's Criminal Court, its administrative offices and a number of offices closely connected with the mayor, whose own office is in City Hall nearby.

Estimated cost of the courthouse

63

Estimated Safes Carpets Furniture Plumbing Plastering Carpentry

Value

Cost

$3,450 19,000 309,000 74,000 70,000

$482,500 4,829,426 1,849.400 1,149,875 2,870,464 2,189,700

30,000

Wits made their own estimates, figuring that Tweed's friend James H. Ingersoll, who supplied the carpets, could have covered the lower half of Manhattan with a high grade of Brussels weave for the amount he was paid. They claimed that Andrew J. Garvey, the plasterer, would have had to apply his plaster to a depth of 6 feet, with gold mesh for reenforcing. As an example of how the stealing was done, Tweed is said to have replied to a contractor who offered to put in an electric fire alarm system for $6o,ooo, "If we get you a contract for $45o,ooo, will you give us $225,ooo?" And on that basis the contract was awarded. 11 By the end of August the public was thoroughly aroused. Under the leadership of Tilden, a number of other lawyers (most of whom were members of the Association), and some husinessmen, a public meeting was called for Monday, September 4, 1871, at Cooper Union. At the appointed hour the people gathered in great numbers, and thousands were turned away. Matthew Breen, who was present, later described the meeting: The foremost men in the city attended. They occupied seats on the platform, looking dark and determined. The anditorium was packed with merchants and business men, doctors and lawyers, mechanics and clerks. The public intelligence and the public conscience had awakened to the disgrace and the danger of the situation. They sat silent and sullen, as they watched the great leaders of the movement, who talked in groups, and almost in whispers, on the platform. Former Mayor William F. Havemeyer, a proud merchant, was made chairman. His utterances in opening the meeting were calm,

64

Causes and Conflicts

but threatening. His manner was what might be expected of a bank President, who had to make to the directors the painful announcement that the bank had been robbed. Judge James Emott, who followed Mr. Havemeyer, analyzed the figures, and then said: "Gentlemen, there is no denial of these fraudulent payments and there is no fabrication of their amount. Now, what are you going to do with these men? [A voice, "Hang them!" This answer brought immense applause from all parts of the house.] I tell you, gentlemen," continued Judge Emott, "that the world- the world is waiting to see if the men of New York believe in honesty or worship fraud. [Great applause.] We must repeal this charter; we must punish the guilty, and recover the money to the city. If the citizens of this great metropolis work in earnest, they cannot be resisted. There is no power like the power of a people armed, aroused, and enkindled with the enthusiasm of a righteous wrath!" Then came the appointment of a committee on resolutions, composed of Joseph H. Choate, James Emott, Edward Solomon, Henry Nicoll, Reuben W. Hawes, John Foley, and Washington R. Vermilye. While this committee was in session in an adjoining room, Oswald Ottendorfer, editor of the Staats Zeitung, and a leader of the German element in New York, delivered a strong, fervid and powerful denunciation of the Tammany thieves. He was followed by Edwards Pierrepont, who insisted that "the manhood of New York should assert itself and drive the marauders from the positions they had dishonored." The audience, anxious to hear the stinging rebukes and caustic sarcasm, ofttimes guised in pleasantries, for which Mr. Choate was even then noted, cried, "Choate! Choate!" Mr. Choate, with a scroll of paper in his hand, advanced slowly to the front of the platform. He was then thirty-nine years of age. Seldom has there been seen on a platform such a combination of physical comeliness, mental excellence, and moral stamina, as he presented that evening when he hurled a "javelin of justice" at the gorgeous and powerful banditti who held possession of the City Treasury. "This," said he [presenting the scroll of paper towards the audience], "is what we are going to do about it!" Before Mr. Choate had finished this answer to Tweed's defiant inquiry, the audience broke into a whirlwind of applause, which lasted several minutes. 12

The "Committee of Seventy" appointed

65

Choate thereupon unrolled his scroll and read off twelve long resolutions which can be summarized as stating that the city was in deep financial and political trouble, that the cause of it was Tweed and his cronies, and that the public should take action to oust Tweed and his ring at the next election, to repeal "the Tweed charter," and to recover as much of the stolen money as possible. To accomplish these aims Choate recommended that an executive committee of seventy members be appointed by Havemeyer to take whatever action seemed necessary. This was done, and the organization which followed from it was called generally the "Committee of Seventy." The reformers moved swiftly. On October 17 O'Conor was appointed special state attorney general to commence civil suits against Tweed and others to recover the funds stolen from the city. He opened a bureau of municipal correction in the city and selected as his associates Evarts, Emott and Wheeler H. Peckham. The following week Tilden, on behalf of the Committee of Seventy, swore out a warrant for Tweed's arrest on charges of deceit and fraud. On October 27 the warrant was served and bail set at one million dollars, of which the greatest part was posted by Jay Gould. Meanwhile several of Tweed's underlings disappeared to Europe. Andrew J. Garvey, "Prince of Plasterers," fled to Canada, and it was rumored that the mayor, A. Oakey Hall, formerly known as "Elegant Oakey," was tearing his hair out by handfuls. Tilden had hoped that in the November election he, Evarts and O'Conor would seek seats in the Assembly in order to have an honest voice for the city's affairs in Albany, and he even had begun to arrange for the nominations. But first O'Conor withdrew because of his appointment to prosecute Tweed, and then Evarts because of an appointment to represent the United States at the Geneva arbitrations. 0 In their places Tilden enlisted D. B. • This was an arbitration, held before an international tribunal, between the United States and Great Britain. Its purpose was to fix the damages caused to United

66

Causes and Conflicts

Hill, a future governor of the state, and \V. W. Niles, a lawyer from Westchester County. Both were distinguished, though not so famous as O'Conor and Evarts. Neither was a member of the Association, though both were quite prepared to work with it. The campaign was a nonpartisan effort. Evarts and Tilden appeared on the same platform at another mass meeting sponsored by the Committee of Seventy, and Tilden stated: "If we found our dwelling wrapt in flames, we should not inquire whether . . . it was a Democrat or a Republican who lent us a hand to put out the fire . . . I come before you to advocate a union of all honest men against a combination of plunderers." 13 In the election the reformers had a sweeping triumph. For the state Senate only seven of Tweed's candidates, including himself, were reelected- a reduction of ten; in the Assembly, only sixa reduction of fourteen. And in the Assembly Tilden, Niles and Hill all won their seats. The continuation of the reform movement seemed certain. During the campaign (just when is not clear), a private event, hut one of significance in later years, took place. Field offered his services free of charge to the Committee of Seventy, and was rebuffed. He reportedly even had prepared a plan of prosecution for the Committee. 14 A few days or weeks earlier he had refused to represent Tweed, who was eager to have the best counsel possible and was prepared to pay for it. Now Field returned to Tweed and was retained. It is easy to understand why the Committee of Seventy did not want to associate itself with Field; and yet it was most unfortunate that the Committee, or whoever made the decision, had not a States shipping during the Civil War by the Confederate cruisers Alabama, Florida and Sheruzndoah, which had outfitted in British ports. Though Evarts was onlv one of three counsel for the United States, he played the leading part. Choate said of it: "This was the finest laurel Mr. Evarts ever won, and from the novelty and worldwide interest in the case, it is, perhaps, the most notable professional achievement that ever fell to the lot of any American Advocate." Edward S. Martin, The Lif~ of Joseph Hodges Choate, as Gathered Chiefly from His Letters (New York, Scnbners, 1920, 2 vols. ), Vol. I, p. 117.

The committee 1·ebutfs Field

67

little more imagination. Field's offer provided an opportunity to reconcile in some part a deep division within the New York bar. He was not only one of its most brilliant representatives, but as the author of the Code of Procedure, which was law, and as the author of several other codes which might soon become law, he was the chief lawgiver of the state. This stirred antagonisms, no doubt. But to have Field, and the many others who supported him, continually and bitterly opposed by other leaders of the bar weakened the bar, even as members of it formed an association in an effort to strengthen it. Now was the moment- when a great crusade was beginning and when, because of Curtis' article, the controversy over legal tactics in the Erie litigations had dwindled -to bind up wounds and align all the leading lawyers on the side of reform. There was no question of denying Tweed counsel. He had money enough, and any number of distinguished lawyers could defend him. It was important only that his lawyer not be Field. But Field it was; the moment passed and the opportunity was lost, with consequences that stretched into the legal life of the city and state and of the Association for the next thirty years.

Chapter 6 IT IS HARD to assess exactly the Association's role in the reform movement which was developing. Whenever it acted in its own name, by resolutions or memorial to the legislature, its contribution, of course, is evident. But frequently an individual rather than the Association acted, and often the man's motives, though he was a member of the Association, were mixed. Tilden is an obvious example. No other man did as much to defeat the ring, but clearly he acted primarily as a Democrat eager to cleanse his party rather than as a lawyer eager to raise the standards of his profession. Yet at the same time he was a vice-president of the Association, planned much of his strategy with it in mind, and reported to it on the progress of the movement. To what extent, then, should the Association's role be treated as distinct from Tilden's? There is no certain answer, and biographers of the Association and of Tilden all have made individual judgments. 0 This much, however, is clear: Tilden set about reform, hoping to use the Asso-

° For example, Edward W. Sheldon in writing his historical sketch of the Association for its semicentennial, 187()-1920, practically ignores Tilden and says of the Association that "Almost single-handed it organized, conducted and won a fight against firmly seated corruption." Further, he quotes with approval, in one of his two slight references to Tilden, an extraordinary statement by another member of the Association to the effect that "the organization of this Association may almost be said to have inaugurated Mr. Tilden's public career." In fact, by 1868, two years before the Association was founded, Tilden was already one of the leaders of the Democratic party in New York, and some would say, in the country. On the other hand, Tilden's biographers, not unnaturally, tend to favor their subject. (E.g., Alexander C. Flick, Samuel ]. Tilden [New York, Dodd, Mead, 1939], pp. 236---239. Edward W. Sheldon, Historical Sketch, 187()-1920, 23 ABCNY Reports 226, pp. 55, 44·)

Tweed's candidate for judge defeated

6g

ciation as one of his tools, and the Association, seeing that this was an honorable and probably effective use of its power, offered itself to his hand. In other instances the Association's role becomes even more difficult to assess because it was an indeterminable influence about which there is often no record at all. When Choate, for example, stepped forward at the Cooper Union meeting to state, "This is what we are going to do about it," he was not referring to the Association or even to the legal profession. Yet he was not on the platform by chance, and he may have been influenced to be there by the Association. He was a member, though relatively inactive; but he also was a partner of Evarts and on good, even intimate, terms with most of the Association's leaders. To what extent did they encourage him to join the Committee and to play an active role on it? Again there is no certain answer. But the founders of the Association had hoped to exert an influence for good simply by organizing, and during the decade of the 187o's, in which the Association appeared as an an organization crusading for reform, it undoubtedly often did have an effect on men and events simply by existing. As its first active step in the reform movement, the Association joined the Committee of Seventy in opposing one of Tweed's candidates for the Supreme Court in the election of November 1871. By a resolution published in the newspapers the Association informed the public that it regarded the nomination of Thomas A. Ledwith as "that of a man who was not a lawyer," and added that the nomination "must be regarded as dictated by political or selfish motives, and in our opinion should be condemned by the people." Ledwith was defeated. But so were most of Tweed's other candidates, probably primarily because of the campaign put on by the Committee of Seventy. The real significance of the Association's action was internal: The potential conflict within the mem-

70

Causes and Conflicts

bership over whether it should or should not attempt to reform the judiciary, as well as the bar, had been resolved, at least temporarily. But it had not been resolved quickly or easily. Nicoll, presumably, was now in favor of some move toward judicial reform, for the executive committee had recommended action; but others had opposed it. In the secretary's words, "After an animated discussion, and the rejection of a motion to lay the whole subject on the table," a committee had been approved to study what action might be taken. The vote of approval, however, was 45 to 23hardly unanimous- and the committee's recommendations, which ultimately led to the resolution against Ledwith, though adopted unanimously, provoked considerably more discussion. Without the pressure of the reform movement, the Committee of Seventy, the election, and an aroused public, the decision might have gone the other way. The public, however, was not satisfied to stop with the resolution on Ledwith. It expected the Association to do more than prevent bad judges from getting on the bench; it looked to the organized bar to get corrupt judges already on it, off. Many lawyers felt this too, among them George Templeton Strong, who wrote in his diary on December 16, 1871: The Association is pusillanimous; its members are afraid to get up a cause against Barnard, Cardozo and Company, though abundant proof of corruption is within their reach. If they should fail, Barnard and the others would be hostile to them, and they would lose clients. . . . I feel inclined to resign from this Bar Association.1 He did not resign, and in fact his stricture on the Association was unfair, although it probably reflected general opinion in the month following the election. But within the Association, whose meetings Strong seldom attended, the active members, elated by Ledwith's defeat and perhaps overestimating their part in it,

The memorial to the legislature

71

moved ahead at once to prepare the machinery and evidence for impeaching those judges they could prove to be corrupt. The committee on the judiciary prepared a memorial and a report for the legislature which were submitted to members of the Association for their approval at a meeting on January 4, 1872. (By then Evarts had left for Europe, where he remained until December. Throughout 1872, though some vice-president generally presided at the Association's meetings, Henry Nicoll as chairman of the executive committee had the guiding hand.) After Wheeler H. Peckham, chairman of the judiciary committee, read the proposed memorial and report, Nicoll moved that they be accepted -which they were, almost without discussion. By this time, evidently, the question of whether to attempt to reform the judiciary was no longer arguable. It had been decided over Ledwith. The memorial opened with a paragraph in which the Association identified itself and its purposes, and then went on to state: Your memorialists further represent that for several years last past the administration of justice in said city, both civil and criminal, has failed to command that measure of public confidence which is essential in order that it may accomplish its beneficent ends; that the integrity of several high judicial officers occupying places upon the bench in said city, has fallen under distrust; that the profession and the public have become and are becoming more and more alarmed at the course and tendency of judicial action, and the general suspicions have ripened into conviction that the courts of justice have been, in many instances, made the instruments of promoting the frauds and injustice they were created to repress and punish. Your memorialists further represent, that charges directly impeaching the judicial integrity of some of the judges upon the bench in said city, have been repeatedly made in the most explicit manner in many of the principal journals of the day, and thus circulated throughout the United States and foreign countries; and that in these and other ways the administration of justice in said city, and the honor and fair fame not only of that city but

72

Causes and Conflicts

also of the State have become widely involved in doubt and suspicion; and that by reason of the condition of things herein set forth, capitalists have been alarmed, and important commercial and financial enterprises have been diverted from said city, and that its general prosperity is likely to be still further materially retarded. Your memorialists further represent, that the public alarm and apprehension thus aroused for the security of the rights of person and property, and the general indignation at the reproach thus drawn upon the city of New York and the State, were among the exciting causes which led to the popular uprising at the recent election in that city, and that the fruits of that election would be in great measure lost unless the distrust herein mentioned should be shown to be without foundation, or be removed by the application of the most efficient remedies; and that it is due to the administration of justice and to the many learned and upright members of the bench, and to those whose character and usefulness have been and are affected and impaired, that a rigid inquiry should be instituted by the Legislature, and such remedies applied as the results of the inquiry may demand. 2 Throughout December the judiciary committee had collected a mass of evidence, much of it verbal and not taken under oath, but enough nevertheless to convince the committee that corruption could be proved against certain judges. The committee report, prepared as an integral part of the memorial, summarized the kind of malfeasance with which the judges (still unnamed) should be charged: In the gross abuse of the powers of such judges, and of the courts held by them respectively; in granting injunctions; in the creation of receiverships, and the appointment of receivers and transferring to them vast amounts of property, both of corporations and individuals; in abusing the power to appoint referees, and in making excessive allowances to receivers, referees and others, for purposes not justified by law; in abusing their authority in the manner of holding courts; in making improper ex parte orders out of court, and in deciding causes and motions without a hearing in court; in abusing the writ of habeas corpus, by using

Tilden's maneuvering in the Assembly

73

or permitting its use for unlawful purposes, and in improperly withholding relief under that writ; in attempting the intimidation of counsel in the discharge of duty toward their clients, and in showing undue favoritism to other counsel and attorneys for their personal or professional advancement; in gross and indecorous conduct while sitting in court, tending to bring the office of judge into popular contempt; in various acts indicating the influence of corruption upon their official conduct and decisions; and finally, in so perverting judicial authority, by the use of devices under the forms of law, as to enable individuals and corporate officers to usurp and exercise unlawful powers, seize and convert property, accomplish nefarious designs, and evade justice.3 The committee gave the combined memorial and report to Tilden, intending that he should present it to the legislature on behalf of the Association. This was natural, for Tilden in his role of assemblyman had a place on the Assembly's judiciary committee. But as he explained, "Instead of presenting it and making it the occasion of a speech, I retained it and gave it back to the committee, advising them to take it to Mr. [Thomas G.] Alvord for presentation. I deemed his cooperation important, thought his parliamentary skill and influence entitled him to a consideration which a section of his own party were not disposed to accord to him, and, for the interest of the cause, felt willing to invite his leadership, and to be myseH a follower." 4 It was a wise move, for ultimately it put a competent, honest Republican in charge of the proceedings in a legislature which, after the election, was dominated by the Republican party. After Alvord presented the memorial and report, the Assembly referred the matter to its judiciary committee, which soon announced that it would hold hearings in New York to investigate the charges. At this time it seemed likely that charges would be presented against four judges: Barnard, Cardozo and D. P. Ingraham of the Supreme Court, and John H. McCunn of the Superior Court. Of these, Ingraham was thought by many to be an honest

74

Causes and Conflicts

judge, guilty only of being associated in men's minds with Barnard and Cardozo because he frequently sat with them as the third member of the Supreme Court's General Term. Whatever may have been the truth, Ingraham was also an old man whose term of office had nearly expired and who by constitutional prohibition could not stand for reelection. After a short preliminary investigation, therefore, the proceeding against him was discontinued . .:~ There remained the other three, all of whom prepared to defend themselves. In those days the judges in New York, as part of the democratic trend emphasized by the Anti-Rent wars and the constitution of 1846, did not wear wigs or black gowns or even, necessarily, dark suits. Barnard, a handsome man with a flowing moustache, had a taste for well-cut jackets and trim trousers, and he ran his court informally. Because he liked to do something with his hands, every day he would whittle a stick of wood down to a pile of shavings, and, fancying himself as a wit, he bantered a great deal with the lawyers. Once when a lawyer asked him for a rather large allowance, $3o,ooo, Barnard hesitated and then said, "Oh, well, take your allowance, and let them put it in the charges." And another time, interrupting a lawyer who was not a member of the Association, he announced, "If there is any member of the Bar Association here, he can have an additional specification in the charges against me, for I am going to scratch my head." Perhaps because he was the judge, and the lawyers merely lawyers, they professed to be vastly amused. 5 0 A minute of the Association's meeting on February 13, 1872, shows that within the Association the fate of Ingraham was discussed with some heat. From the floor a member offered a resolution that Ingraham's conduct "be inquired into before the Judiciary Committee of the Assembly." But "after an animated discussion, the resolution, on motion, was laid on the table." (Minutes of the Association, Vol. 1, p. 95·) Ingraham was born in 1800 and died on December 12, 1881. His judicial life had begun in 1838 when Governor Marcy appointed him an associate judge of the Court of Common Pleas. On his retirement from the Supreme Court on December 31, 1873, he had been a judge for thirty-five years, which was thought to be a longer period than any other judge in the state's history up to that time. (For some eulogies of him following his death, see 25 ABCNY Tributes to Lawyers 12. )

The hearings on the three judges

75

The hearings of the Assembly's judiciary committee began on February 19 at the Fifth Avenue Hotel, which was then on 23rd Street, and continued through April11. Often the sessions lasted from ten in the morning until eleven at night. On the committee of nine were Tilden and his two colleagues, D. B. Hill and W. W. Niles, and all three took an active part in the interrogations. Besides the committee's counsel, the Association, on the Assembly's invitation, was represented by three members: Joshua Van Cott, John E. Parsons and Albert Stickney. From the start these men were the active counsel in the hearings and soon symbolized for the public the Association's role in the reform movement. For about six months they spent all their time on the hearings and on the subsequent trial and impeachment proceeding. At the end the Association voted them an honorarium of $1,000 each "for their services in the trial of Judge McCunn." 6 In all, the Association itself spent about $4o,ooo, collected principally from its members, on the prosecution of its charges. 7 At the hearings Van Cott, Parsons and Stickney examined 239 witnesses, 116 with regard specifically to Barnard, 64 with regard to Cardozo, and 42 with regard to McCunn. All three judges were represented by counsel,., and cross-examination was allowed. The records at the end were voluminous - and damaging to the judges. Nevertheless, each continued to prepare his defense. Barnard conferred with Cardozo, and both agreed that a resignation by either would serve as an admission of guilt for both; each therefore promised the other not to resign. The committee, after studying the records for three weeks, recommended impeachment for all three judges. Just as the Assembly was about to act on the recommendation, however, Cardozo, without notice to Barnard, sent in his resignation to the secretary of state, and it was accepted. As a result the case against him was dropped, and he retired to private life, dis., Barnard retained George Ticknor Curtis who, having written the article on David Dudley Field's actions in the Erie litigations, already had studied much of the ground the hearings would cover.

76

Causes and Conflicts

graced but without official censure. Barnard and McCunn continued to prepare their defenses. Even in sin there are degrees of guilt; and all men, honest or corrupt, judged Cardozo, for his secret betrayal of his colleagues, to be the most contemptible of all the men involved in Tweed's ring. • The resignation of Cardozo and the impending trials of Barnard and McCunn, as might be expected, released the venom of those who believe that virtue or vice resides in the racial or religious background of a man. Cardozo was a member of one of the city's oldest and most distinguished Jewish families, and McCunn was an Irish immigrant - a sailor from County Derry who, with a helping hand at the start from O'Conor, had worked his way up in the world. Among New York's citizens there were many, such as George Templeton Strong, who were eager to believe that the city's troubles were largely the work of the Irish and the Jews. Yet the Deity in his wisdom had made it difficult for anyone seriously to reach this conclusion, for there was also Barnard, of good native stock, born in Poughkeepsie, one of seven brothers, all of whom had gone to Yale. And even Yale was not clearly the cause of the trouble, for Barnard's brother Joseph was on the Supreme Court at Poughkeepsie and was honest. For reasons that are unclear the Assembly decided to follow different procedures in the trials of Barnard and McCunn. For Barnard it proposed an impeachment, in which it would present its charges (the articles of impeachment) to the Senate sitting as a Court of Impeachment. In addition to the Senators the judges would include five members of the Court of Appeals and the lieutenant governor of the state, who was by law president of the Senate and of the Court of Impeachment. The trial would be scheduled and directed, however, by nine members of the Assembly,

° Cardozo's son, Benjamin Nathan Cardozo (187o-1938), was only two years old at the time of his father's resignation, but he grew up feeling his father's disgrace keenly and determined to redeem the family name. He achieved this by becoming one of the most distinguished judges of his generation, serving on the Supreme Court and Court of Appeals of New York from 1914-1932, and on the United States Supreme Court from 1932 until his death in 1938.

The Senate's trial of Judge McCunn

77

who had the title "Managers on behalf of the Assembly." Chairman of these was Tilden's colleague, Thomas G. Alvord. For McCunn the assembly proposed a less formal procedure. It submitted charges to the governor with the recommendation that he call a special session of the Senate to investigate them and, if it found them true, to remove McCunn from office. Under this procedure the Senate technically did not sit as a court and did not have the judges of the Court of Appeals sitting with it. In fact no one was exactly sure how the procedure should work, and much of the early part of the trial was given over to arguments about jurisdiction and powers and whether the governor's letter to the Senate had met the requirements of the state's constitution. Nevertheless, the Senate determined to proceed, to conduct its investigation as if it were a trial, and to deliver a judgment. If, as McCunn's counsel insisted, he had the right of appeal to some court from what was merely a quasi-judicial hearing, that question could be met when it arose. Because this procedure was simpler than an impeachment, requiring the Senate merely to assemble in its regular chamber at Albany without the additional judges or the managers from the Assembly, McCunn's trial was scheduled before Barnard's and began on June 18. Representing the Association and pressing its charges against McCunn were Van Cott, Parsons and Stickney; representing McCunn, besides himself, was a group of five lawyers. The Association presented eight charges, all carefully selected. McCunn was most notorious for his fraudulent naturalization proceedings, which generally took place just before elections. Immigrants, often forty at a time, would be herded before him by Tweed's lieutenants and with the knock of his gavel would acquire the right to vote. "It is rumored," the Tribune remarked one time, "that Judge McCunn has issued an order naturalizing all the lower counties of Ireland, beginning at Tipperary and running down to Cork. Judge Barnard will arrange for the northern counties at the next sitting of Chambers." 8

78

Causes and Conflicts

But there was none of this in the charges. Obviously to question the citizenship of thousands of voters and, perhaps, to prove that all the elections in the state for the past five years had been fraudulent would create enormous problems which the removal of McCunn would not solve. Instead the Association's lawyers had selected seven cases, each with several allegedly corrupt acts or rulings by McCunn, and had fashioned out of each case a separate charge of corruption. A final eighth charge presented the conclusion of corruption based on the other seven. The charges are stated in a formal, contorted style which conceals rather than discloses their meaning, but Parsons, in his summation for the senators put the seventh charge, typical of the others except that the amount of money involved is small, as follows: The next case to which I call your attention is that of Van Ness v. Taliaferro. The facts are in a small compass, and the case is a very aggravated one. There was pending a reference before a very respectable attorney in the City of New York, Mr. Edsall: the contest being about a fund of $3,000, in the possession of a firm of auctioneers, of New York, Messrs. Leeds & Minor, a perfectly respectable and responsible firm. MR. D. P. wooD:

Under which charge does this case come?

MR. PARSONS: It comes under the seventh charge, and the testimony relating to it will be found commencing at page 403. I have stated that this fund of $3,000 was in the hands of Leeds & Minor, a responsible firm of auctioneers in the city of New York; they were willing to pay interest for it, pending this litigation, and the reference before Mr. Edsall had proceeded so far that the plaintiff had rested his case, and the defendants were called upon to introduce their testimony, when one of the parties to the suit made a motion before Judge McCunn to vacate the order of reference, upon the grounds that the case was not referable, and that the consent given was not that of the party; really, the result of this case is laughable; senators, you must not think that these are isolated cases which we have succeeded in bringing

McCunn's counsel withdraw

79

before you; we cannot bring here the mass of cases which are exemplified and illustrated by those with which we have felt justified in occupying the attention of the Senate; in this case, as I have said, a motion was made before Judge McCunn to vacate the order of reference, on the ground that the case was not a referable one; Judge McCunn vacated the reference- all that he was asked to do by the parties appearing or by the motion papers; but, by the same decision, he who thus held that the order of reference before Edsall should be vacated upon the ground I have stated, ordered another reference and appointed Wm. M. Tweed, Jr., referee; we all know why that was done: but that is not all; by the same order Judge McCunn appointed Mr. Thomas J. Barr receiver of the amount in controversy; no such motion was pending; no party applied for a receiver; and the consequence was that the parties were subjected to a further litigation, extending over many months, and were obliged to pay receiver's fees and referee's fees, in addition to the referee's fees previously incurred, and to enable Judge McCunn to purchase political support and assistance. This was immediately preceding his nomination to his present term of office, and indicates the extent to which he holds his seat by the will of the people. 9 McCunn attended the trial through the arguments about the Senate's jurisdiction and through the first day of testimony, and then his courage apparently failed him. Though he remained in Albany close to the Senate and followed its actions, he would not attend its sessions. On the second day of taking testimony, a week after the trial began, while a witness was being questioned by Parsons on redirect examination, a messenger delivered a letter from McCunn to the president of the Senate. It announced that McCunn's counsel had withdrawn from the case and had urged him, as their letter to him stated, "to leave it to the Senators, unimpeded by you, or by us in your behalf, to make such disposition of the charges against you as, in their judgement of their power and duty, shall seem just and right." This advice, McCunn now informed the Senate, he intended to follow.

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Causes and Conflicts

In their letter to him which he enclosed for the senators his lawyers explained their action by stating that, in addition to thinking the proceeding was unconstitutional, "our views in regard to the admissibility of much of the evidence produced against you differ so widely from the rulings on the subject, that we are disposed to question the propriety of our continuing longer in the position we have occupied, and to doubt whether our doing so would be of any essential service either in your defense, or in excluding from the record of the proceedings against you, of what we deem irrelevant and improper evidence." 10 The two letters, when read out to the Senate by its president, caused amazement. No one was sure of their significance. One senator proposed that the Senate sit without adjournment; another, that it adjourn at once; and still another, that it follow the schedule previously laid down for the proceeding - in short, disregard the letters. And in the end this is what it did. The trial came to a close on July 2. In the morning Parsons began his summation by attempting to answer the senators' unstated questions about the two letters. Perhaps some of them feared that they had been a legislative tyranny? Parsons assured them they had not: "This case has assimilated very nearly to an impeachment trial; every right which the accused judge could claim, if he were here with articles of impeachment pending against him, has been conceded to him, and we think that the Senate had gone even beyond what the accused judge could claim if he were here to answer articles of impeachment, and that privileges have been accorded to him which in that case he could scarcely insist upon as a matter of strict right." 11 This was true, and the senators must have felt convinced of it. Further, as Parsons observed: "The case was a nasty case. It had not even those circumstances to give it an appearance of dignity which are found, and which impose upon the public mind when a man of great talent has been guilty of correspondingly great wrong. This man, who had procured himself to be placed in the

The judgment on McCunn

81

position of judge, as represented by this testimony, is a low, mean, sneaking man . . . ." 12 And this also seemed true. "I stand here," Parsons said, "for the bar of the city of New York, to call upon you, senators, by your interference, to elevate, beyond the reach of influence or temptations like these, the standards of professional honor, applicable as well to the practice of my profession as to the performance by the judges of the city of New York of their duties." Later, after a period of private consultation, the Senate returned to public session, and the clerk was directed to read the charges. Of six of the seven charges McCunn was found guilty; of the sixth charge he was found innocent. On the eighth and summary charge the Senate found him guilty of "illegal and corrupt acts" for "his own personal gain and advantage, pecuniary and other" which had "thereby brought the administration of justice into contempt, and caused deep-seated and general distrust and fear to proceedings in the courts of this State." Then it voted, 28 to 0, to remove him from office. McCunn left Albany and returned to his home in the city. He was reputed to be a crude man, and perhaps he was. But he was not insensitive. He arrived at home in a half-dazed manner and, without even stopping to grieve with his family, shut himself up in his bedroom. Three days later he died, and Charles O'Conor, who once had helped him get his start and now was preparing the case against Tweed, put aside his work to attend the funeral and to go with the family to the grave. Barnard's trial began on July 22, only a fortnight after McCunn's death, and was held at Saratoga Springs in the large town hall. Saratoga then was a fashionable spa, an attractive place in midsummer for the judges, senators, witnesses, clerks and counsel to gather. It was filled besides with sentimental legal memories for the older lawyers. Until the reformation of the state's judicial system, which had followed the constitution of 1846 and which, under David Dudley Field's Code of Procedure, had merged the

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practice of law and equity, Saratoga had been the seat of the state Court of Chancery. It was at Saratoga that Chancellor Kent had presided, and for many lawyers it seemed appropriate for a court of impeachment of a judge to sit there. The trial proceeded in much the fashion of McCunn's, except that Barnard's counsel did not withdraw and there was less argument about the tribunal's jurisdiction. There was also more examination of witnesses, for instead of only eight charges of corruption Barnard was facing thirty-eight articles of impeachment. Half of these were related to the litigations involving the Erie, the Union Pacific and the Albany & Susquehanna railroads, and the examination of witnesses concerning them consumed perhaps three-quarters of the trial. As with the charges against McCunn, each article dealt with a specific situation, most often the granting of an ex parte order of injunction or the appointment of a receiver, and closed, typically, with "The said justice made the said order contrary to law, with a willful and corrupt partiality toward James Fisk, Jr., Jay Gould, and others, who were then directors of the said Erie Railway Company. . . ." Only one article, the twentieth, charged Barnard with taking money for his corrupt acts, and even this was limited to small personal gifts and "a number of costly chairs of the value of five hundred dollars and upward." In this respect the charges against McCunn and Barnard were quite different. Those against McCunn always specified pecuniary profit for himself or his friends, generally in fees or allowances, whereas those against Barnard, with this one exception, specified only partiality for his friends. In either case, of course, someone suffered an injustice, one which in the railroad suits could run into millions of dollars. Nevertheless, the atmosphere of Barnard's trial was less sordid than that of McCunn, although more glittering because of its greater formality, the size of the sums involved and the flamboyance of its personalities. Representing the managers of the Assembly, and therefore pre-

Barnard's counsel on the Association

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senting the articles of impeachment to the court, were Daniel Pratt of Syracuse and the same three men from the AssociationVan Cott, Parsons and Stickney. Technically they now were employed by the Assembly and had no connection with the Association, except of course that they were members. But so was Barnard's chief counsel, William A. Beach. The public, however, tended to ignore Beach's membership and to think of the others as representing the Association against Barnard. Beach himself contributed to this idea, for in his summation he stated bluntly that the managers "have sat through this trial as mute dummies and delegated its control to the Bar Association." 13 Hoping to convince the senators that the Association had ulterior political motives for attacking Barnard, he talked of "the subtle and stealthy emissary of the Bar Association of the City of New York shadowing this court and its members" and remarked on the Association's "spirit of malignity and hate." Its tactics had included "Professional spies placed upon the private movements of a judge. Professional reporters employed to follow his courts and gather up any humorous or unconsidered expressions he may have used in the freedom of chambers intercourse." 14 As Breen wrote later, the Association as painted by Beach was a monster crawling "in the path of its victim from place to place, listening to his lightest word and noting his minutest movement in its anxiety for materials out of which to construct the instrument intended for his ruin."

15

In other parts of his speech, of course, Beach pounded on alleged defects in the articles of impeachment, and generally his summation was considered to be very effective. Its rhetoric was in the style of the day- and so was its length, seven hours. Van Cott's reply, however, was even longer, and he also had something to say of the Association's role in the proceeding. Protesting at Beach's description of it, he asked: What is the Bar Association of the City of New York? It is the reputable Bar of that city, and the whole of it; for no lawyer of rep-

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utable standing is obliged to stay out of it, and I believe I may say that every reputable lawyer desires to be in it and to co-operate in its high and useful public purposes. The Bar Association of the City of New York, whose chiefs are Charles O'Conor, Samuel J. Tilden, William M. Evarts - these are the persons described in the expressive language of the gentleman as the "subtle and stealthy emissaries of the Bar Association" who have conspired and set upon this virtuous respondent, who flies, one would think, as a volunteer, not brought here as a criminal, not dragged to the bar of justice, but who Hies here as to a place of refuge from the persecution of those "stealthy and subtle emissaries of the Bar Association." 16

The court took three days to vote on the articles, and during that period word leaked out that Barnard had been acquitted of the charge of pecuniary corruption. This was the twentieth article, and although there were still thirty-seven others, this was in a sense the most serious. With it safely passed, the hopes of Barnard and his friends soared. If he were found guilty of one or two of the articles - and a two-thirds vote of the court was necessary for each one - there might be only a reprimand or vote of censure, and even if he were removed from office, he soon could be reelected. Barnard himself seems never to have doubted that he would be acquitted. On the final afternoon he waited for the verdict with his friends in a room of the Grand Union Hotel, drinking, joking and gaily anticipating the result. When news of the verdict came, it fell on the group like a thunderclap. He had been found guilty of twentyfive of the articles, including every article involving the Erie Railroad litigations, three out of four of those involving the Union Pacific, and seven out of eleven of those involving the Albany & Susquehanna. The court thereupon had voted 35 to 0 to remove him from his office and 33 to 2 to disqualify him forever from holding any "office of honor, trust or profit under this State." Barnard, Cardozo and McCunn: these are the most famous of the judges brought to trial, but they were not the only ones.

Referendum on the selection of ;udges

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There were two more, George M. Curtis and Horace G. Prindle, both of whom were acquitted, but only after testimony which revealed that, though they perhaps were not corrupt, they were indeed bad judges. 17 The charges against Curtis, a judge of the Marine Court in New York City, were prepared and prosecuted by the Association. As with McCann's, the trial was before the Senate. It started in December 1872 and ran into the following year. Prindle was the county judge and surrogate of Chenango County, and the charges against him, fifty-four in all, were preferred by eleven citizens of Chenango County. His trial too was before the Senate and, proceeding in a desultory fashion, ran from July 1872 into the following January. So that in 1872 the citizens of New York faced the spectacle of four of their judges on trial for corruption and a fifth resigning after public hearings, to avoid trial. There never had been such a sight before in the state's history and, not unexpectedly, men asked, Why? What had happened? Many lawyers in the state, including those leading the Association, agreed on the root of the trouble. It lay in the constitution of 1846, which had abolished the method by which judges were appointed and had substih1ted a system of election. Terms, for the higher courts at least, had been set at eight years and election districts made relatively small. For a time this system had worked reasonably well but gradually, in the opinion of many lawyers, the caliber of some of the judges had declined. Political leaders who wanted to control the patronage of the court system had nominated and elected some judges who could be controlled. In an effort to remedy this problem by giving the judges more independence, the constitutional convention of 1867 had proposed to extend the terms on the Court of Appeals and the Supreme Court from eight to fourteen years. The people had approved this, though by a very small majority, in the election of 186g. For lawyers who thought the selection of judges by popular election was a bad method, this was a step in the right direction,

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but a very small step. In 1873 there would be a chance to take a larger one. A proposal which had originated in the constitutional convention of 1867 was scheduled to come before the people as a referendum in the election of November 1873. The proposed plan would reinvest the governor of the state with the power to appoint judges, contingent upon the advice and consent of the senate. This, in the opinion of many lawyers, was the answer to the spread of corruption on the bench. It was a system of selecting judges that had worked well in the past and certainly never had produced a situation in which five judges faced trials for corruption within a single year. Passage of the referendum was the positive reform for which the bar as a whole should work, and to which the conviction of Barnard and McCunn should be merely a prelude.

Chapter 7

ONE UNFORTUNATE RESULT of the hearings on Barnard and Cardozo was that they again stirred up the controversy over David Dudley Field. He had been summoned as a witness at the hearings, and also at Barnard's trial, and on almost every occasion, though his testimony had revealed nothing new, he had appeared arrogant about his own actions and contemptuous of those of others. "Your question is an impertinent one," he had replied once to Albert Stickney, "and, if you repeat it, I will answer no more of your questions. You will get no answers if you go on that way." But, of course, Stickney continued to ask questions and Field to answer them, more or less. Finally, one time when Field began a long recital, Stickney interrupted with "We don't desire that." "But I do," said Field, at which point the chairman of the hearing interrupted. 1 Under the circumstances Field's behavior seems foolish. He was already the center of a controversy in which he was not clearly in the right, and his behavior on the stand would not help Barnard, if that was his purpose, or himself. But he was not a man to gauge niceties, and even if he had tried, his temperament, sooner or later, would have betrayed him. Field's ability and his personality were each a phenomenon of his day. In certain aspects of the law it is probably true to say that no American lawyer has ever matched him. When in 1847 he prepared the Code of Procedure, 0 which combined the practice of

• Laws of 1848, c. 379· This act, together with the amendments to it by the Laws

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law and equity, he did not take a little from here and a little from there and produce a combined procedure. Rather, he struck out on new lines, relying on his own legal learning and instincts, and he was brilliantly successful. In the next twenty-five years, twenty-four states copied the Code of Procedure, though often with changes for the worse. Further, in the seventeen years 1848-186s, Field, on commission from the state but working entirely at his own expense, had drafted four more codes: one on criminal procedure (the Code of Procedure dealt only with cases involving civil law), and three on substantive law- a civil code, a penal code, and a political code. The last dealt with laws respecting the government of the state, the functions of its public officers, and the political rights and duties of its citizens. With these five codes Field reduced almost all the law of his day to a unified system. The New York legislature, largely because of the opposition of other lawyers to Field, refused to consider the last four codes until the 188o's and then adopted only a part of them. Meanwhile other states adopted some or all of them whole, and around the world- for example, in England and its colonies such as India, Singapore and Hong Kong- they were extremely influential. It was a stunning record and considering that he received no pay for it, a remarkable gesture of good will toward his fellow men. Yet there was his personality which most men found offensive. Theron G. Strong, a younger lawyer who admired him greatly felt compelled to write of him: "Tall, erect, dignified in bearing, of 1849, c. 439, was known as "the Field Code," and in New York it was the civil practice act (the laws governing the procedures in civil cases) for nearly thirty years. It should be borne in mind that much of the criticism directed against this Code of Procedure was in fact directed against revisions and amendments of it, particularly against a revision made by a committee under Montgomery Throop and adopted by the state in the period 1876-1880. Though Throop's code was based on Field's, it was quite different in some important respects. For example, the final draft of Field's code, which perhaps should have been the revision adopted, had 392 sections, whereas Throop's code as adopted had 3,356. It was a monster of detail and regulation of which Field was the first to disapprove. Nevertheless, much of the criticism of the new code was directed at him simply because he stood for the idea of codes.

David Dudley Field

8g

of extensive learning and unquestioned ability, there was also something cold and repellent in his demeanor, and although his manner was polished and elegant, he lacked every element of sympathy and magnetism, and his distinguished professional achievements and successes were not because of an outwardly attractive presence and manner but in spite of them." 2 He was combative and self-assured, with a faith in himself and his ideas that was almost religious in its intensity. About Field, his father, and several of his brothers there is an atmosphere of the Old Testament: they are the chosen of God, the prophets, angry, critical and without a doubt. In 1818 when Field, the eldest child, was only thirteen, his father, who was an evangelical minister, heard a "call" to preach in the wilderness, and without more ado he left his wife and children for over a year to preach on the frontier in western New York Field's youngest brother, Henry, edited a Presbyterian paper, The Evangelist, for forty-four years; his brother Matthew built the longest suspension bridge of his day; brother Stephen, who went to California in 1849, persevered through an extraordinary series of violent incidents, most of them involving "honor," to be appointed by Abraham Lincoln as associate justice of the United States Supreme Court; and finally, Field's brother Cyrus, who believed that a transatlantic cable for telegraph could be laid, tried to do it and failed, and despite scoffers, tried again and succeeded. The Fields seemed drawn to tasks requiring skill, daring and faith. In 1819 the father moved the family to Stockbridge, Massachusetts, where he had been offered a post in a church, and for almost exactly a hundred years Stockbridge was the family seat, though clearly no one was required to stay at home. Nevertheless, the family feeling was very close, and when brother Henry wrote a biography of David Dudley in 18g8 he dedicated it to his brother Stephen, with an impassioned paragraph beginning "We are all that are left!" Plainly, it was the Field family against the world. Throughout his life Field's legal and religious thinking reflected

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Causes and Conflicts

the New England of his childhood. He had been born in Haddam, Connecticut, in 1805. As a boy he had heard war declared on Great Britain, had seen British men-of-war patrolling Long Island Sound, and could remember the excitement of Waterloo. Though later he became fond of the British, he grew up in a period when anti-British feeling was at its height, and popular interest in the Napoleonic codes probably at its greatest. Like many others of the time he felt that justice had become unduly expensive and infrequent because the English common law, as yet largely unreformed by Jeremy Bentham, and existing primarily in principles derived from precedent, was inaccessible to the ordinary man and arbitrary in its procedure. During his childhood one of his most vivid experiences was unusual for his time and yet typical of his family. His father took him to the public execution of a murderer in order that he might hear the sermon preached at the condemned man, and Field seems to have reacted about as his father must have hoped. He grew up with a strong sense of right and wrong and of duty, all based on religious ideas; and nothing in his student days seems to have upset them. Living at Stockbridge, he attended Williams College and left in good standing after three years, perhaps because he somehow - and this would be characteristic - had offended the president, or possibly because he felt he had learned all that he could. In any event, he always felt warmly about Williams and on several occasions spoke at its functions. From college he went out into the world with only ten dollars, a Bible and his father's prayers, and no doubt both he and his father considered the money the least important of the three. His religious thinking, however, unlike his legal thinking, did not develop much beyond his student days. In his later life, when Darwin's books were upsetting the religious thought of many men, Field was able to say with serenity that while at Williams he had read Butler's Analogy and Paley's Natural Theology and had "accepted them." His generation was the last to enjoy this cer-

First attempts to discipline Field

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tainty, for Henry Adams, born in 1838, and his contemporaries came upon Darwin, and later Huxley and Spencer, at an early age and were convinced by them. With their conviction a certain type of arrogance concerning man, "made in the image of God," became less frequent and gradually disappeared, when to enough men it became laughable. But Field had it, and in the 187o's it was not yet laughable. It was implicit in the way he thought of himself and in his belief that, Godlike, he could master all legal knowledge and, by rewriting that knowledge in codes, improve the law. Such certainty, such arrogance irritated many of his fellow lawyers extremely. Even though Field's testimony at the hearings and at Barnard's trial had revealed nothing new, his behavior had aroused a large group within the Association that wanted to discipline him, either by a vote of censure or by expelling him as a member. 3 But this group evidently was opposed by another even more powerful, although not necessarily more friendly to Field. Sometime after the Field-Bowles and Field-Barlow letters had been published in the winter of 1871, someone, presumably Barlow, had filed charges against Field with the Association's committee on grievances for his actions in the Erie litigations. Hearings had been held and a record made, but thereafter the committee never published the record or any report on it, though in December 1872 members of the Association, including Field, were still demanding it. That record and report (assuming one was written) today have disappeared: lost, or possibly destroyed. But the group eager to discipline Field, which seems to have been composed mostly of the younger men, was not so easily put off. After the excitement of Barnard's trial, in the summer of 1872, a member of the Association proposed at the meeting on September 24 that the judiciary committee report "what further steps, if any, should be taken in reference to any members of the profession implicated by the proceedings of the investigating committee of the Assembly during the past winter." This plainly was another

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Causes and Conflicts

attack on Field, and this time through a committee which included several of the younger lawyers such as Barlow and Stickney. After some debate on the proposal, the members of the Association approved it. But again no action followed. In October, Wheeler H. Peckham, the chairman of the committee, reported that it had "as yet arrived at no conclusions." The next month his committee reported "progress" but requested "further time." After this, twenty members of the Association, evidently thinking the delay was deliberate and likely to be eternal, petitioned the executive committee to call a special meeting "to consider the report of the judiciary committee." The executive committee, either wishing to hear the report itself or not daring to ignore the petitioners, raised the question at an Association meeting December 10. It was the first meeting at which Evarts presided after his eleven months abroad for the Geneva arbitration, and although Nicoll undoubtedly had warned him of the fight over Field, probably neither foresaw the tempest that the petition to the executive committee let loose. In response to it Peckham once again asked that the judiciary committee be given more time. At which Field rose, and joining those who hoped to discipline him, said that he objected to any further postponements. He had had enough of postponements and of maneuvers within the Association, all of which were aimed at him. Several persons interrupted, trying to be recognized, but Evarts ruled that Field had the floor. Then in what was one of the longest and certainly one of the liveliest speeches ever heard at an Association meeting, Field unburdened himself of his grievances. I mean to meet this now and here. It is not to me a matter of regret that this discussion has arisen. When I was first attacked, nearly two years ago, I repelled the attack in the newspapers where it was made. My assailant, thus met on ground of his own choosing, turned to this association and threatened me with dreadful things to be done here. I expressed my gratification at his new

Field's speech at the Association

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resolution and invited him to begin. After a long delay he began, but he never got on. Why, I am not now permitted to say; but I should be very glad if the association would order the minutes of what happened before its committee to be printed and given to the members. Every word was taken in shorthand and remains of record. Baffied and foiled in this raid, the same person, with a few followers, has set out upon a new one. Whether he will fare any better remains to be seen. Disregarding the rules of the association, made for the protection of each member separately and of the whole body collectively, which provide that one member complaining of another shall lay his complaint before the Committee on Grievances where the matter may be investigated in such manner as not to injure unnecessarily the reputation or wound the susceptibilities of any one, these raiders have chosen to make their charges publicly before the whole body in a way to have them reported and published to the world without giving the member assailed an opportunity to defend himself against their action, or notice of what they were doing or about to do. This is a proceeding so unjust in form and so outrageous in motive that I cannot suppose it will receive the sanction of any considerable portion of this body. What could be more alien to the spirit of the association or more repugnant to the sentiment of personal honor than for one or more of its members to attack a fellow member in the association and, at the same time write against him in the newspapers? The motive, of course, is to create a public opinion which is to operate here. The act is an insult to every member, for it assumes that he could be influenced by outside discussion, and it is, withal, an attempt to corrupt him by appealing to the baser motives. Your duties towards your fellow members are judicial in their character. Whoever attempts to influence a judge, by exciting his prejudices or his fears, is undertaking the work of corruption. It has been hitherto regarded as a rule not only of honor but of justice, that your enemy shall not sit in judgment upon you. What will you say then of enemies, not only assuming to judge you themselves, but stirring up others to sit with them by violent appeals to their passions? Some of this committee are my bitterest personal enemies and have been so for years, and they nevertheless venture to ask you to accept, as the result of their impartial deliberations, a report founded upon hearsay and devised in malice. Observe the inconsistency of the practice which these mem-

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hers follow. The charges now made are not new. They are the same in substance as those formerly made and disposed of by the Grievance Committee. Why are they revived? Can they be revived? Is there no end of the annoyances which one's enemies may give a member of the association? Is this place an arena for private combat? By joining this body do we subject ourselves to new means of vexation, to be repeated and repeated again, as often as any member who is aiming at notoriety and has nothing else to do may choose to gratify his hatred by assailing a fellow member? But, as I said before, I do not regret this discussion. It gives me the opportunity of breaking the silence which I have imposed upon myself and of repelling the attacks, causeless and wicked, which in newspapers and magazines and by every means which they could command, these malcontents have made upon me, and I beg your patience while I here expose them and their falsehoods together. I did not begin this quarrel, but I mean to end it. For two years or more I have been followed by a noisy pack, whose bark has disturbed the neighborhood, but who have never bitten, and I will now see whether they can bite or not. Shall I show you who these men are? They are not many -less than a score in all. I confess to feeling some embarrassment how to speak of them here. While I know that my own professional life will bear the closest scmtiny, I am certain that theirs will not. I have in my possession evidence of disreputable practices by most of them and a clue to further evidence. I am sure that in their assaults upon me they have been impelled by the basest motives. Shall I use here the facts which I have in my possession against them, or shall I leave them for a future occasion? Shall I, for instance, dwell upon the scandals which attach to the name of Barlow, or shall I leave them to the Tribune and the next Assembly? Shall I mention the stigma which I have heard cast upon VanCott, or shall he be left to the trial which perchance awaits him? Shall I utter the name of Stickney, or shall he be left to the little newspaper notoriety that he has coveted, begged and earned? If I were to go into the history of these men I might give you an amusing and instructive chapter; but I forbear. One may bribe and lobby; another may live on lawsuits which he gets by dmmming and pursues upon speculation, and others, still, may fall into other disreputable professional practices, but I shall not drag them into this debate. There are two subjects, however, personal to them which are rei-

Field's remarks about certain lawyers

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evant now, for they serve to show how little weight is to be attached to this report. Five of the committee are, as I have already said, my personal enemies, and could no more act fairly in a matter connected with me than they could change their stature, and a majority of them, I think I may say without contradiction have so little knowledge or experience of difficult lawsuits that they do not know whether an order is right or wrong. Let me, by way of example, name four of them - Messrs. Barlow, Peckham, Van Cott and Stickney. There is Mr. Barlow, with knowledge so infinitesimal that in a suit upon a note of hand he actually interposed as a counter claim the damages which he insisted that the maker sustained by being called upon to pay at maturity, contrary to a promise by the payee when he took the note that he would give time for payment, and he so managed a suit in the Marine Court about tanners' bark that his client has consulted counsel whether to sue him for causing the loss of his case, and he and Mr. Peckham together have for several months been vainly trying to frame a good complaint upon an assigned claim growing out of the late city frauds. It is perfectly well known to lawyers that Mr. Barlow does not venture himself to try the cases appertaining to his office of Attorney General. His display in the office is a most laughable burlesque. Would you have me justify my action to such a man- so incompetent, so ignorant? I might as well talk to a child as to him about a course of action in a difficult case. His reward for his libels upon me has been his punishment. He was nominated by Ramsey in the State Convention, no doubt for his abuse of me, as Ramsey's tool. But if he had kept out of the office his ignorance of law would have remained concealed in his obscurity. Nor would he have been tempted to commit some of the sins to which his office has exposed him. He would be led into temptation, was tempted and fell. Then here is Mr. Van Cott, who, having signed an administrator's bond at the Surrogate's office for his brother, as administrator of the estate of another brother, and being sued upon the bond by a creditor of the estate, has pleaded in his defence that the bond was taken without jurisdiction, because the deceased brother was not an inhabitant of the county when he died, and the administering brother procured his signature upon false representations as to the residence. Would you have me justify my action to one who thinks that a defence either in morals or in law? And here is Mr. Stickney, the newspaper lawyer, whose chief practice has been the

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prosecution of fifteen lawsuits which he took on speculation, for alleged differences in gold contracts made in the Black Friday gambling shambles, and which suits it has been my lot to defend. So much for the incompetence of these men to pass upon my actions. But, supposing them competent, what has brought them into the case? They are all of them interlopers. Not one has had any concern, either as party or counsel, with the lawsuits in respect to which the complaints are made. Is it not a little remarkable that they who were in the fight, who gave and received the blows, make no complaint of foul play, but that outsiders and volunteers who were not present should afterwards rush in and cry out for those who do not cry out for themselves? If one has wronged another it is safe to assume that the sufferer will complain, and if he makes no complaint it is fair to tell an intruder that he had better mind his own business. Don Quixote went about to make a fool of himself in his awkward efforts to right the wrongs of suffering virtue. But here is a set of sham Don Quixotes, crying out when nobody else cries, bewailing imaginary wrongs, seeking to persuade somebody that he is hurt, albeit that he sees no wound and feels no pain, but they run about all the same, not like the real Don Quixote, riding with his squire, but wading through the gutter, blowing their penny trumpets. Not only are they intruders, but they are intruders into litigations which are still pending. The law suits are not yet ended and are to be adjudged hereafter. What sort of an institution would this become if it were to entertain pari passu with the Courts' cognizance of the cases now awaiting their judgment? Must we have two suits of practitioners- one for the courts and another for this association? Indeed, one might almost infer that the motives of the persons engaged in the present assault are to get business for themselves here which their talents and opportunities would not give them in the ordinary tribunals of the State. Such are my accusers, and I think you will agree with me that there is not much in them to alarm anybody. What now, is their accusation? There is a proverb that all things come to him who waits. I have kept my silence for nearly two years, and during that time I have seen disappear, one after another, most of the charges that have been made against me, dispersed by the persons who made them or as the result of their efforts. First, it was charged- and that was the burden of the controversy with the Adamses- that I had obtained improper injunctions from Judge

Field defends his actions

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Barnard in the gold litigation. It turned out that only one injunction was granted by him, and that was pronounced by a member of this body, long Chief Justice of the Superior Court, to be a proper order to be asked for and a proper one to be granted. Then it was charged that the Gold Exchange Bank had been obliged to pay exorbitant claims in order to escape from my pursuit. It turned out that I had refused to sanction those claims, and had given up the suits rather than countenance their payment, and that other members of this body, who have not been as yet complained of, and one of whom, Judge Emott, is not particularly friendly to me, participated in and compelled the payment. Then it was charged, and that was the burthen of the controversy with Bowles, that two of my clients were bad men; that I put them into the Erie management and kept them there, and I thus was responsible for their mismanagement. Now, whether it was proper for me to try the characters of my clients before trying their causes is a question I leave to those members of the association who have refused such retainers or taken only the retainers of saints. Whether the Erie management referred to was mismanagement or not I do not know. That is a question yet to be tried, and this is not the place to try it. But whether I put my clients into power and kept them there is a question of fact which, if it be of any importance, I will answer. First, I say that I did not put them into power. I was not in the country when they were first elected. I never attended a subsequent election, and none of the elections were ever disputed. Secondly, I say that I did not help to keep them in power, unless by that be meant that I was one of the counsel who defended them in four successive litigations- the Vanderbilt litigation, the Belmont litigation, the Heath and Raphael litigation and the Ramsey litigation. Now in the first litigation I was associated with Judge Pierrepont, Judge Porter, Judge Brady, Mr. Evarts, Mr. Burrill and Mr. Eaton. . . .

Field then went on to discuss the specific cases and his actions in them, and, after reading letters from twelve lawyers and judges finding nothing wrong with his actions, he closed by saying: I hope that there is nothing apologetic in what I have said. If there be I did not intend it. I am far from apologizing for any-

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thing I have done. For my acts in the two litigations that have been made the occasion of censure I deserve not blame, but praise -praise for having acted according to my estimate of my duty. I have been in all things true to my convictions. No order or judicial act of any kind has ever been sought from any judge by me but such as I believed to be warranted by the law and the fact. In defending myself I am defending the honor and independence of the Bar, and in contending for their rights I am contending for the rights of all who are their clients now or who may be their clients hereafter, that is, the whole body of citizens. I hope also that I have shown no apprehension of evil consequences to myself from all this noise and flurry. If I have then I have shown what I do not feel. It would ill become me to boast here or anywhere, but it would be affectation not to say that I think I have lived long enough and in my life have done enough to make my reputation safe against anything that these men can say or do. Their hostility has many motives, not the least of which is dissatisfaction with those legal reforms which it has been my fortune to undertake, and not only to undertake, but carry through against the opposition of such men and their followers. They have opposed me with argument and without argument, with sneers and denunciation: but I have always defeated them, as I shall again. For the little knot of my assailants I have no respect and I shall express none. They have relied, lawyers though they would claim to be, upon the prejudices that exist in the community against lawyers, and which prejudices they hoped to concentrate upon me through the influence of the press. If this reed on which they lean happens to break it will not be my fault. They have not fought me like men, but like cowards and assassins. Their conduct from beginning to end has been a compound of meanness and fear. Let them have their reward. For the general body of this association, though it is but a fraction of the Bar of this city, and, of course, a smaller fraction of the Bar of the State, I feel all due respect, which, in closing what I have now to say, I desire here to express . . . . Then, according to the New York Herald, in which the speech and meeting were reported, Peckham rose when Field sat down.

Parliamentary maneuvering over Field

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He knew that he was expected to say something, and he made a brief reply, or rather tried to be very sarcastic at Mr. Field's expense, referring to the latter's own estimate of himself and his small opinion of the Judiciary Committee's abilities. The fact that they were so incompetent was, he said, a good reason why they should be allowed further time to get the weighty matters they had under consideration through their thick skulls. Then and there was neither the time nor the place to discuss the orders of the Court alluded to. It would be time enough when the committee was ready to report and declared Mr. Field an accused party. This they had not yet done, and he (Mr. Field) had, in his opinion, by excusing, accused himself. He closed by denying that he had any personal enmity to Mr. Field. He referred to the taunts in an article in a newspaper that very day as to why the Bar Association did not take action in the matter under consideration. Mr. Field asked, "Did you write that article?" which created considerable merriment. Mr. Peckham denied having written it, and remarked that the opinions of Black and others read by Mr. Field were just worth what was paid for them. At this stage of the proceedings Mr. Nicoll tried to have a resolution passed calling upon the Committee on Grievances to make a report as to charges made against Mr. Field. This got everybody by the ears. Motions and counter motions flew thick and fast. Mr. Field wanted an amendment inserted thus, after the word charges, "made by Francis C. Barlow." This he could not obtain, and then he moved that the "proceedings taken in short hand" before the committee be printed and laid before the association instead of a report. This, he claimed, he desired earnestly, and it was but fair that this amendment should prevail. Mr. Nicoll and his friends fought hard against this. Mr. Field and his friends, however, pressed the question so hard that the former saw that the sense of fair play of the association was against them, and seeing, too, that they could not keep back the proceedings and get in a report alone, they began to load down the resolution with all sorts of amendments, all looking to the same end they had in view. It was all to no purpose, however, and so for a time they were completely thrown upon the defensive. Whilst the matter was in its greatest confusion a motion to lay upon the table was made and did not prevail; one of Mr. Field's friends loudly crying out, "Vote that down; we want these proceedings printed; let this whole mat-

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ter come out." Finally a motion to proceed to the regular order of business was carried and thus the whole matter dropped, the resolution of the executive committee remaining unacted upon and the Nicoll resolution ditto. Thus ended the first real Field day in the association, and judging from the way things went last night it will be a long time before the association will enjoy one equally as spicy. 4 The newspapers ordinarily did not have reporters at the Association's meetings, and when at the next meeting Van Cott questioned how the Herald had acquired the account of Field's speech, Field promptly stated that he had released it. This, of course, further angered those who already disapproved of him, while his friends insisted that it was the only way he could be sure of fair treatment. The issue of Field seemed about to split the Association irreparably when it was only in its third year and its work of reform only just begun. But a possible end to the wrangle was in sight, for Peckham had promised the judiciary committee's report for the meeting on January 30. When the day came, the Association's hall was crowded and alive with anticipation. James C. Carter read the report for the committee. It exonerated Field. 5 And there, the members present evidently felt, the matter should end, for they promptly voted to accept the report and to discharge the committee "from further consideration of the subject." A few moments later Evarts closed the meeting with some remarks on the distressing circumstances "in which the family of the late Chief Justice Taney" still found itself and talked rather yaguely of what the profession or the Association might do. The storm was over. But unfortunately, the anti-Field forces were not satisfied, and at the next meeting a William R. Darling, not one of the betterknown members, made a motion for the Association to reconsider its action on the report. Evarts was not present. Vice-President Edgar S. Van Winkle was in the chair, and he ruled the motion out of order. Then, surprisingly, on an appeal and vote, the mem-

Evarts' plea for moderation

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hers present reversed his ruling. This was possible under the Association's constitution and by-laws, for like the laws of a New England town, they gave the members present at a meeting almost unlimited power. Though Evarts, Nicoll and the committee chairmen might run the organization, they could be overturned at any meeting. Suddenly the whole issue of Field was opened again. At the next meeting Darling, with many supporters attending, offered a preamble and three resolutions disapproving the report of the judiciary committee and dissenting from its conclusions. A number of members expressed their views, and then Evarts, relinquishing the chair to Van Winkle, took the floor and spoke at length in support of the committee's report and of the Association's action on it. His words were not recorded, but almost certainly he pointed out that there was no exact standard by which a lawyer's professional actions could be judged, and that Field's actions already had been examined twice, once in the public forum of the newspapers and magazines and once in the privacy of the Association, without any clear conclusion of unprofessional conduct. Two examinations by different tribunals, he may have urged, were enough, and the conclusions should not be ignored. Perhaps too he talked of Field's contributions to the reform of the law, or stressed that for the Association to overturn its committee's report, after having accepted it, might bring more discredit on the Association than some of its members hoped to inflict on Field. In any event, he ultimately succeeded in reversing the majority of the previous meeting, and the members present voted, 81 to 65, once again to accept the committee's report exonerating Field. It was the last time the issue of disciplining Field was argued in a meeting of the Association. Evarts' part in this result may have been his greatest contribution to the Association; certainly it was his most personal. After this year, though he continued as president for another six, he was

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almost always absent from the meetings• and took almost no part in Association activities. And even in the first four years he maintained a detachment, which served him well as moderator of the meetings, while it allowed others to push forward the Association's projects. It was only on this one occasion that he stepped down from the chair to use all his skill and influence in persuading the members to a conclusion that many- perhaps even a majority - seemed not to want, and it was important for the Association that he did. Even as it was, unhappy consequences for the Association followed from the fight over Field, and quite possibly a move to expel him or a vote to censure him would have been a disaster for the new organization. Supporting Field were many worthy lawyers, and any move to discipline him, one of the giants of the profession, by a three-year-old self-appointed association representing only one in eight members of the New York City bar probably would not have been borne by the profession as a whole. Most likely there would have been a noisy row, carried on in public, in which Field would have appeared to the majority of laymen and lawyers alike as a man being pushed around by his fellows. The Association, whether victorious or not, would have hung an albatross around its neck from which it could never have cut free, and the New York Law Institute or some organization founded later, such as the New York County Lawyers' Association, would have emerged to take the Association's position. Soon after Evarts had persuaded the Association to accept its committee's report, Field left the city for Brussels, where he had agreed to serve as the first president of the Association for the Reform and Codification of the Laws of Nations. 6 This was an 0 It was not so much lack of interest as the pressure of business. From July 1874 to July 1875 he was fully involved in the Beecher-Tilton trial; the following winter he served as chairman of a state commission to recommend an improved plan of government for the state's cities; and in January 1877 he went to Washington to argue the Republican side in the Hayes-Tilden controversy over the Presidency. In March 1877 he became Hayes's Secretary of State and left New York. In his last three years as president of the Association, he did not attend a single meeting.

An unfortunate quarrel

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honor for him and involved a subject which he found irresistible, and although he would never have thought of it as such, it also served as a tactical retreat. When he returned to New York in 1875 he was still a member of the Association, and he continued to be so until his death in 1894, but after this fight over his professional conduct he never again was active in it. For the Association it was a most unfortunate quarrel, and one which influenced its development and actions for the next twenty years. In many ways it was a stroke of extraordinarily bad luck. So many things about it might have been different. Field might have practiced law in the same manner, but had a pleasing personality; he might, by doing only a little more or a little less, have acted in a way about which there could have been no argument; the Committee of Seventy might have accepted his offer to represent it against Tweed; or he might have been an extraordinary lawyer without also being the lawyer who was attempting to rewrite and codify the state's common law, an act sure to arouse at least half the profession against him. Despite Evarts' speech, within the Association the anti-Field forces, in a sense, won their battle. Though they had lost their motions in the meeting, in the coming years they would cause the Association to oppose Field's codes in the legislature in a manner so bitter that the opposition often would seem personal: the Association against Field and his codes. This was most unfortunate, for it made the Association appear to many as merely a clique of lawyers rather than a fair representation of all that was best in the profession.

Chapter 8

THE MOVEMENT for reform which had given birth to the Association and continued to influence its development reached several peaks in 1873, of which the most obvious were the trials of Boss Tweed. Possibly the most important, however, was the referendum in the November election on the method of selecting judges: whether by election, or by appointment of the governor with the advice and consent of the Senate. Election was the method currently in use; appointment had been the method until changed by the constitutional convention of 1846 (see Appendix A, p. 383). The decline of quality on the bench under the elective system and the necessity for reversing the trend had been among the chief reasons for founding the Association. Its members therefore felt strongly about the referendum and, beginning in April, marshaled their forces to persuade the people in November to return to a method of appointment. On the other hand the trials of Boss Tweed, of which there were two during this year, did not involve the Association directly, though most of the lawyers on both sides were members of it. Nevertheless, the trials were of great interest to the bar as a whole, particularly in several of their incidents; and to the public, of course, they appeared as major battles in the reform movement. The first trial, a criminal action, took place in January before Judge Noah Davis, sitting in the Court of Oyer and Terminer1 on the second floor of "Tweed's" courthouse on Chambers Street. The indictment contained 220 counts, each charging Tweed with misdemeanor in neglecting his duty as one of a board of auditors

Tweed's first criminal trial

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of claims against the county of New York. The theory was that Tweed as an auditor had authorized the comptroller to pay the county's bills without first checking them. The prosecution ostensibly was in the name of the people, represented by the district attorney. He was assisted, however, by two lawyers, Lyman Tremain and Wheeler H. Peckham, representing Charles O'Conor as special attorney general for the state, and these two in fact conducted the case. David Dudley Field with several others defended Tweed, and Samuel J. Tilden and Andrew J. Garvey, the plasterer, were the chief witnesses. The trial began on January 7, 1873, and the following three days were consumed in selecting a jury. It was generally believed at the time that no jury would convict Tweed, either because of affection for him or, more likely, because of a promise of reward, and to prevent either possibility Peckham examined each candidate exhaustively. Nevertheless, by the time the first witness was called, the gossip of the day said that the reformers had the judge (for Davis had been elected the previous November on the reform ticket) and Tweed the jury. Every day Tweed's friends filled the back of the courtroom, and he returned their smiles, laughed at the lawyers' sallies and seemed never to doubt that he would be acquitted. Only once did he lose his composure, when Garvey, the plasterer, testified. Garvey's testimony was appallingly direct. He described in detail the methods by which the ring operated and Tweed's plan to head off investigation by bribing the legislature. As he went on and on, Tweed first flushed and then turned red with anger, glaring so ferociously at him that Garvey began to twitch in his seat, and during a recess when Tweed approached him, he walked away in evident fear. But except for this incident, Tweed's composure never was shaken. Next to Garvey the most damaging witness was Tilden who, working on a tip and entirely at his own expense, had unraveled the secret bank accounts of the ring at the Broadway Bank. These

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ultimately proved, at least to the satisfaction of most men, exactly how much the ring had received on certain deals and how it had divided the money. But on first presentation Tilden delighted in making of the figures a dazzling display of numbers, all shot in the air seemingly at random, like fireworks, yet all eventually falling into place to light up some obscure transaction. Peckham examined, and it was at once apparent that he and Tilden had rehearsed their performance. In barely a moment, as they plunged into debits, credits, warrants and other intricacies of bookkeeping, they had left the jury behind in a state of bored confusion, and soon they had stunned Field and his colleagues into nonobjecting silence. Mter several hours of figures Tilden even took control of the court. Looking up at Judge Davis, he announced that he and Peckham had reached a good place to stop and, as it was nearly one o'clock, he recommended a halt for lunch. Judge Davis thereupon banged his gavel and announced a recess. Field, however, was not so easily defeated. On cross-examination he attempted to show that Tilden was Tweed's political enemy and to persuade the jury that the trial was merely a tool to oust Tweed from control of the Democratic party. As he rehearsed Tilden's opposition to Tweed's charter, to Tweed's candidates and to Tweed personally, he succeeded in making Tilden angry. Finally, when he interrupted with a mocking remark which caused the spectators to burst out laughing, Tilden stopped short in obvious rage. "Go on, Mr. Tilden," Peckham urged soothingly. "I can't go on when he (Field) stands there, and browbeats me." "Oh," exclaimed Field, "Why, sir, I . . . I . . . I . . ." "Well, sir," Tilden snapped, "I consider your conduct insolent and indecent." To which Field replied calmly, "Well, indeed, if the witness was not ill, as I think he must be, I should speak differently to this language."

Referendum on the selection of judges

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"You can speak as you please," cried Tilden excitedly, "and so will I." 2

Nevertheless, despite Field's best endeavors, the evidence taken altogether seemed overwhelmingly against Tweed, and when the jury retired, it appeared entirely possible that he would be found guilty. But the jury, though it stayed out overnight, was unable to reach a verdict and reported the next morning that it saw no possibility of doing so. After some questioning by Judge Davis, the jurors were dismissed. Peckham promptly moved for a new trial at the earliest date, which, because of the Court's calendar, was the following November. For the moment, at least, Tweed had won, though it was much debated whether his victory rested on the merits of his case as presented by Field or on the bribing of some juror. On November 4, the day before Tweed's second trial began, the people of the state went to the polls to vote on the method of selecting judges. It was, in a different forum, another trial of Tweed, and the Association had worked hard to persuade the voters to endorse selection by appointment. It had passed a resolution favoring appointment which it had published twice a week for three weeks in newspapers throughout the state. Its members had spoken at public meetings on the advantages of appointment, and ten days before the vote it had published over Evarts' signature an "Address by the Bar Association" which it directed "To the Voters of the State of New York." 3 The pamphlet was short, only ten pages, and confined itself entirely to stating conclusions, which it did in simple and effective language. Dorman B. Eaton, who probably was the author, wrote a much longer pamphlet4 for the Union League Club and the New York Council of Political Reform. In it he argued with facts and tables of statistics that on the average, elected judges in both civil and criminal courts were less able than those who were appointed. Under elected judges there were more appeals and more new trials and reversals, and the effectiveness of their criminal

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administration, as shown by the ratio of dismissals, indictments, trials and convictions to arrests, was less. "Hence we see," he concluded after some statistics, "that while a murderer or a horse thief in 1847 had but seven-ninths of a chance of escaping trial in the County of Lewis, the opportunity of that kind of escape had so improved as to be three to one in 1866. Is that the sort of gain the farmers of Lewis County expected of an elective judiciary?" And, of course, in 1872 in a single legislative session "the unexampled number of five judges were awaiting trial for official corruption- a number greater than were arraigned in the whole period of appointed judges in this state from 1777 to 1846." Both pamphlets agreed on the reasons for the decline under elected judges, and the Association's address to the voters summarized them as follows: Judicial elections have, in our opinion, as a rule, been unfavorable to the selection of men of the greatest ability and attainments for the bench, and not less unfavorable to the prevalence of courage and fidelity in the discharge of judicial functions. The judicial canvass is in its very nature demoralizing, and the temptation is dangerously strong to make commitments unfavorable to justice. The judge who reaches the bench through a party contest at the polls, where one portion of the people support and the other oppose him, by no means finds it as easy to be impartial, nor do lawyers and suitors find it as easy to believe him impartial, as if he had been appointed by the governor and confirmed by the senate. Such selections have also been prejudicial to learning and character among lawyers. Lawyers of inferior capacity, aspiring to the bench, have been induced to intrigue for caucus and party influence, and thus the more honorable conditions of professional advancement have been disparaged and neglected. Much in the same ratio in which inferior lawyers have been able to reach the bench, under the elective system, persons of small education and uncertain character have made their way at the bar. All honest men of every calling have a common interest with all that is honorable and worthy in the legal profession, in having only able and

Appointment of judges defeated

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upright lawyers and judges intrusted with the administration of justice in the State. The election of judges, by giving more offices to be made the subject of bargaining and intrigues by the managers of popular elections, has increased the number and power of those party mercenaries who live by the spoils of elections, and the same cause has aggravated the excessive power of the mere party majority. 5 Yet, in spite of the speeches, resolutions and pamphlet, the people of the state voted 319,979 to 115,337 to continue to elect their judges. It was a severe defeat for the reformers, particularly so for those in the Association, and laymen and lawyers alike were startled by it. The vote was relatively light, but in the rural counties it was overwhelmingly in favor of the election of judges. The farmers of Lewis County, for example, despite Eaton's statistics, voted to continue the system of election by a margin of 4,314 to 79·"' At the same time, the Republican percentage of the total vote dropped from roughly 41 percent the previous year to 34 percent. In the city, Tammany Hall Democrats, as opposed to both Republicans and reform Democrats, made a strong comeback. Apparently the spectacle of Barnard, Cardozo and McCunn had not impressed the public as much as the reformers had hoped and believed. Upstate, in rural New York, the farmers' distrust of the legal profession for its prejudices, real or imagined, in the AntiRent wars still seemed to be strong, and in the city Tweed, despite all the evidence of his corruption, seemed once again to have won. His second court trial, which started the day after the election, began with an incident which fascinated the bar and which developed ramifications that for many lawyers were more interesting "' The refom1ers did best in counties which either contained large cities or lay close to them. With the vote in favor of appointment given first, these were: Albany County, 5,955 to 13,781; Erie, 4,541 to 4,963; Kings (Brooklyn), 22,088 to 22,292; New York, 28,432 to 56,386; Queens, 3,330 to 2,330; Richmond (Staten Island), 1,574 to 596; Westchester, 5,468 to 6,597. Manual for the Use of the Legislature of the State of New York (Albany, Weed, Parsons, 1874).

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than the trial. It concerned the right of Tweed's counsel, in a particular circumstance, to challenge the impartiality of the judge. At the time of the first trial, counsel had the right to challenge a juror by what was called a "challenge to favor," and then the issue of that juror's fitness was determined by the jurors already sworn, who were designated as "triers." But prior to the second trial, the statute had been amended to provide that in such a situation the judge rather than the jurors already sworn would act as the "trier." Tweed's counsel felt that Judge Davis, by his comments at the first trial, had revealed that he shared the popular prejudice against Tweed and therefore should be disqualified from determining the fact of a similar prejudice in a juror. They did not question his ability to rule impartially on questions of law involved in determining Tweed's guilt under the indictments, but only his ability to act impartially as a "trier." From this premise, however, they argued to a conclusion that Judge Davis should disqualify himself from presiding at the trial. As the trial began, they presented this argument, premise and conclusion to the judge in a note, respectfully worded and signed by all Tweed's counsel: David Dudley Field, John Graham, William Fullerton, W. 0. Bartlett, J. E. Burrill, Elihu Root, Willard Bartlett and William Eggleston (see Appendix C, p. 389). Field was in Brussels at the time, but he had signed the note before leaving. In his absence, however, the most active of the counsel were Graham, a poetic Irishman with a long auburn wig, and Fullerton, a former judge on the Court of Appeals. As the court opened, Fullerton stepped quietly to the bench and presented the note to Davis without comment. Davis opened it, began to read and turned first white and then red. Recessing the court, he withdrew to consult his fellow judges. On his return, he announced in a voice harsh with anger that the case would proceed, and when several of Tweed's counsel attempted to explain their intent, he cut them off bmsquely and stated that he would deal with the note later.

Tweed's second criminal trial

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The episode caused a sensation in the courtroom and was reported fully in many of the papers, although the contents of the note were not exactly known. Nevertheless, it was plain that Judge Davis had taken it as a slur on his integrity, and thereafter many of his exchanges with Tweed's counsel were bitter. Many lawyers, even more than they argued Tweed's guilt, argued the right or wrong of Davis' anger and of his decision to preside at the trial, and there was considerable speculation as to what he might do at its close by way of disciplining the eight lawyers. Meanwhile the trial proceeded and, even more than its predecessor, turned on the selection of a jury. Peckham and Tremain again examined exhaustively, and this time as each juror was sworn the Committee of Seventy assigned a detective to watch him and to report if anyone in any way connected with Tweed attempted to approach him. After seven days of examination only ten jurors had been sworn, and to ensure their purity Judge Davis ordered that they no longer be allowed to return home at night but must stay under the charge of court officers at the Astor House. Even so, during a recess in the examination the eighth juror sworn was approached by a police captain, who until that moment had been conversing with Tweed. The captain accompanied the juror downstairs and held him in conversation for five minutes. The detectives promptly reported the incident to Peckham, who demanded a hearing on it so that he could challenge the juror "to favor." Judge Davis listened to the detectives, heard the juror and the police captain protest their innocence, and then, on the ground that a conversation about whether the juror "was making plenty of money" was too suspicious to overlook, dismissed the juror. If Tweed's confidence was shaken by the incident, he did not show it. The examination of witnesses was both shorter and less explosive than in the first trial, and early in the evening of November 18 the jury retired. It stayed out that night and, shortly after ten the

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following morning, returned to ask a question. Up to this point Tweed and his friends had seemed genuinely confident, but in the next few minutes as the jury retired again, he, at least, began to look anxious. Less than ten minutes later the jury returned, this time with hats and coats in hand. When they were seated the clerk asked them if they had reached a verdict, and the foreman replied that they had. "How say you," asked the clerk. "Is William M. Tweed guilty or not?" and the foreman replied, "Guilty." Three days later Tweed returned to court to be sentenced. Of 220 counts in the indictment the jury had found him guilty on 204 which, when grouped by the accounts to which they related, made 102 separate offenses. The question had not been argued, but most men, including Tweed's counsel, had assumed that the indictment in its entirety constituted a single offense, for which the maximum penalty was a $250 fine and a year in jail. But now Tremain contended that the 102 offenses were separate and that for each of them Tweed could be fined $250 and sentenced to a year in jail. As Tweed realized the sentence that Davis might impose, he began to break down. When Graham, who was arguing passionately and poetically for mercy, suddenly sank into a chair and, dropping his head to his arms on a table, began to sob convulsively, Tweed too buried his face in his hands and began to weep. But Judge Davis was unmoved. It was ridiculous, he said, to sentence a man who had stolen a million dollars from the city to pay only $250 and to spend only a year in jail, and he sentenced Tweed to a fine of $12,500 and a prison term of twelve years. Then, after Tweed had been led from the courtroom, Judge Davis summoned his counsel to the bench and in full voice, so that everyone heard, directed the lawyers to appear the following Monday, at ten o'clock, to learn what action he intended to take with regard to their note. Besides his position as judge in the Court of Oyer and Terminer Davis had succeeded Daniel P. Ingraham as the Presiding Justice of the Supreme Court and as such was the most important and distinguished judge in the city. His

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manner and remarks now left no doubt that he intended to discipline Tweed's lawyers- including Field, who was still in Europe - for falling below the standards of their profession. The bar had helped to improve the bench by impeaching corrupt judges; now, it seemed, the bench would help to improve the bar by publicly censuring lawyers who treated the courts with contempt. As might be expected, when Davis ascended the bench on Monday, November 25, the courtroom was filled with lawyers. Sitting before the rail at one of the tables for counsel was Evarts, whose presence in such an exposed position suggested approval of the proceeding. :Meanwhile Tweed's counsel, against the advice of Graham, had agreed among themselves to take an undefiant position. They merely asked leave to submit a memorandum on their intent, which was granted, and the rest of the morning they stood by meekly while Judge Davis castigated them for a legal maneuver calculated to bring the judge and the court into disrepute. The following Saturday the lawyers submitted their memorandum, which attempted to defend their note while acknowledging the reasonableness of Judge Davis's view of it. But he was not mollified. Ruling that they were in contempt of court, he announced: As God is my judge, what I feel it my duty to do, I do, not from personal motives, but from a solemn sense of duty to the Court, the Bar, and above all, to the administration of Justice. No lawyer is justified in any act for the sake of his client, which renders him amenable to the bar of his own conscience, or tends to degrade the tribunal before which he appears, or lessen respect for that official authority on which so much depends for the preservation of our institutions. I must make the mark so deep and broad that all members of the Bar will know, hereafter, that all such efforts are open to censure and punishment by fine, as the law permits. I fine William Fullerton, John Graham, William 0. Bartlett, $250 each, and order that they stand committed until the fine is paid. Mr. Burrill's position has already been explained, and Mr. Field is three thousand miles away from the jurisdiction of the Court. In respect to

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the younger members of the Bar, who have signed the paperElihu Root, Willard Bartlett and William Eggleston- I have this to say: I know how young lawyers are apt to follow their seniors. Mr. Eggleston did not take active part in the trial, and I do not speak of him. The other two younger lawyers displayed great ability during the trial. I shall impose no penalty, except what they may find in these few words of advice: I ask you, young gentlemen, to remember that good faith to a client never can justify or require bad faith to your own consciences, and that however good a thing it may be, to be known as successful and great lawyers, it is even a better thing to be known as honest men. Proper orders will be prepared by the Clerk and submitted to me."'

Unquestionably Judge Davis' action had the support of the majority of the city's bar. Several times during his remarks in the courtroom he was interrupted with applause, and it is understandable that all those who were anxious to censure Field were happy to have at least something in that line achieved. George Templeton Strong, reviewing some of the events of the month, noted in his diary the following night: Mr. Attorney-General Barlow writes to ask Mr. Sheriff Brennan why Boss Tweed still lingers in the Tombs and is not consigned to the penitentiary. Mr. Brennan replies that he is waiting for an "intimation" from Judge Davis or the district attorney. Mr. Barlow "'Quoted by Matthew Breen, Thirty Years of New York Politics, Up-to-Date (New York, privately published, 18gg), p. 484, and Theron G. Strong, Landmarks of a Lawyer's Lifetime (New York, Dodd, Mead, 1914), p. 85. Both have lengthy descriptions of the contempt proceedings. Breen felt that Davis' leniency toward Elihu Root and Willard Bartlett was misplaced, for "The two young lawyers, Root and Bartlett, who escaped fines, and instead received good advice and compliments, were the two real culprits; for it was they who preJ?,ared the offensive paper and submitted it to their elder associates for signature. ' But he cites no source for the statement. (Breen, p. 485.) According to Root's biographer, Philip C. Jessup: "Thinking the matter over after the lapse of some sixty years, Root felt that he and his fellow counsel were right in making their objection 'but it belonged to that class of legal technicalities which the administration of the law has now outgrown.' " And from the same conversation with Root, on July z6, 1934, Jessup also concludes: "Root felt later that Judge Davis was right in rejecting the challenge to his impartiality and that he had taken the only possible course." Philip C. Jessup, Elihu Root (New York, Dodd, Mead, 1938,2 vols.), Vol. 1, pp. 85, 88.

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rejoins that the sentence might be considered a sufficient intimation to the sheriff of his official duty in the premises, and that if he, the sheriff don't do it rather promptly, the Governor will know the reason why. So Mr. Tweed was this afternoon translated from the Tombs to Blackwell's Island- the "Isle of Sinners"- cropped, shaved, washed, and arrayed in his penitential garment of many stripes. "For this and for all other mercies," and so on! Mr. Frank Taintor "goes up" to the Albany penitentiary for seven years; Ingersoll, the Ring forger, to Sing Sing for five. One of the Stokes' jurors is fined and imprisoned for misconduct during the trial. John Graham (Front-de-Brass) and his disciples, Fullerton and Bartlett, are reprimanded and fined by Judge Davis for their unprofessional and indecent attempt to bully him off the bench when he opened Tweed's trial. There is certainly an epizooty (why not epizoic?) among scamps and thieves and thieves' lawyers just now, and Judge Davis has justly earned much praise by his vigorous action against the crew. 6 But Strong soon was disappointed. Tweed remained in prison little more than a year, for Field, returning from Europe, took the question of the cumulative sentence to the Court of Appeals, which by a unanimous decision reversed Judge Davis' ruling. Tweed's sentence thereby was reduced from twelve years to one, and as he already had served a year by the time the opinion was announced in June 1875, he was released. He was rearrested immediately, however, in the civil suit brought by O'Conor to recover the six million dollars allegedly stolen from the city. This time Tweed was unable and his friends were unwilling to post bail, and he was sent to the Ludlow Street jail to await trial. But life there for a defendant in a civil suit not yet come to trial was much pleasanter than for a convict on Blackwell's Island, because in the custody of officers he was allowed to go for drives in a carriage and to visit his home. With the criminal charges over, the prison sentence served, and Field once again active in his defense, Tweed appeared confident that in a year or two he would regain his position in the city.

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Meanwhile Field, as soon as the Court of Appeals announced its decision reversing Judge Davis' cumulative sentence, turned his attention to overturning, in the forum of legal opinion, the judge's position in the contempt proceeding. 7 He attempted it with a long letter, really an article, which the Albany Law Journal published on August 14, 1875. Using moderate language throughout, Field presented all the facts of the supposed contempt, the law of the matter, and asked, Where was the contempt, then? Handing the paper to him in court? Was that disorderly, contemptuous, or insolent behavior, tending to interrupt the proceedings of the court, or impair the respect due to its authority? If it be, counsel should stand on their guard ... the extravagant pretensions of Judge Davis would lead, not only to intolerable oppressions, but to the most ridiculous absurdities. Suggestion to a judge that he should not sit in a particular case, is not such an uncommon thing that he need be touchy about it. Field made a powerful argument which for once he did not weaken by personal attacks. Many lawyers must have reached the end of the letter and wondered if Judge Davis, in fact, had not puffed up without cause and delivered a merely pompous rather than important lecture to the bar. Field concluded: In the course of Judge Davis's address, from which I have quoted so largely, he alluded to me personally, intimating, in his pleasant way, that a long distance lay between me and danger, he being all the while as far from me as I from him. I have been now several months in my own country, state, and city, and although I am obliged to go abroad again for a few weeks, I expect to return about the first of October. While I am by no means fond of controversy, I do not decline it when pressed upon me, and if Judge Davis still thinks that he can punish me for contempt, I am ready to try conclusions with him whenever he sees fit. But neither Judge Davis nor any lawyer on his behalf accepted

Tweed's civil trial begins

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the challenge. Field went to Europe, returned and began to prepare for Tweed's trial. On December 4, 1875, Tweed, as was his custom, went for a drive with the warden and the keeper of the jail and stopped at his home. Leaving the two officers in the living room for a moment, he went upstairs to see his wife, and disappeared. His escape caused a sensation, and no one doubted that it had been achieved with the help of the two officers. Probably, in order to give him maximum time to get away, they had released him at the start of the drive to the house, at some point where he could transfer unobserved to a closed carriage. The sheriff offered a reward of $10,000 for his recapture, but no one even reported a sight of him. Most men soon believed he had succeeded in reaching Europe. In fact, he was at a friend's farm on the Palisades where, with his whiskers shaved and a wig added, he was posing as a handyman, chopping wood, working around the house, and every evening reading about his trial in the newspapers. The trial had begun on February 7, 1876, but without O'Conor. Early in the autumn he had been unwell and soon became so sick that several newspapers, being warned on November zg that he was dying, had published his obituary the next morning. These in turn misled a number of courts to adjourn for the day after the lawyers present had delivered appropriate eulogies. To everyone's amusement O'Conor survived, but at seventy-one he seemed unlikely to live for long, and when the trial started he was still confined to his bed. The prosecution, therefore, was handled by his assistants, James C. Carter and Wheeler H. Peckham, while opposed to them was Field. But the absence of O'Conor from the trial was considered by the public to be a stroke of the greatest fortune for Tweed. Further, Field seemed to be at the height of his extraordinary powers, and neither Carter nor Peckham could match him. The judge plainly was more impressed by Field than by either of them, and the feeling that Field would win and Tweed would be

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acquitted grew steadily stronger, particularly after Field succeeded in having some testimony for the defense admitted. That night Tweed, on the Palisades, must have felt particularly confident. The next day even more spectators than usual crowded into the courtroom. One of them, Matthew Breen, was fortunate enough to get a seat at a clerk's desk directly below the judge, so that he faced the audience and could see the entire room. The day began with Field examining a witness. As Breen later described it: He was closely watched by Carter and Peckham for the people, but one could see buoyancy and triumph in the whole attitude of David Dudley Field. His anticipated triumph could not be concealed, and his son was wearing a smile of perfect confidence. While he was about to ask another question of the witness, a sudden commotion appeared at the entrance of the Court room. The court officers were making way for somebody, the chairs were moved about, and with the shuffling of feet some noise was created. Mr. Field halted in his question, and turned round. Then I saw the tall form of Charles O'Conor, pale, emaciated and feeblelooking, with the collar of his great coat raised about his neck, slowly and painfully walking forward towards the Bench. Almost every man in the Court room rose to his feet but maintained a respectful silence. He approached still further, and his junior assistants Carter and Peckham went towards him, and greeted him in surprise and delight. Nor was Field long behind them. With magnificent courtesy he congratulated his old associate at the Bar on his recovery. 8

Like Tweed on the Palisades, O'Conor on Washington Heights had been following the trial in the newspapers, but with different emotions. From the day of his return, however, he dominated the courtroom, including the judge, just as Field had done, and finally on March g, 1876, the jury brought in a verdict against Tweed for over six million dollars. Meanwhile Tweed, apparently as soon as he read of O'Conor's reappearance, started his Hight - first to Florida and then to

Tweed's flight and capture

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Cuba, where he boarded the brig Carmen bound for Spain. He had been recognized, however, and when the Carmen put in at Vigo, the port authorities were waiting for it. They went aboard with a copy in hand of one of Nast's cartoons in which Tweed was represented as beating two children, symbolically representing justice and reform. Since this led them, and later the Spanish reporters, to believe that Tweed was a man who kidnapped children, they were indignant with him. When the port authorities finally found him, he was disguised as a sailor, scrubbing the deck. He was transferred to an American ship and on November 23, 1876, was returned to the Ludlow Street jail. From there he wrote a letter to O'Conor on December 6 offering to give up all his property and to testify to all he knew about the frauds in return for his freedom. O'Conor was anxious to take advantage of the offer, for much was still unknown. But he could persuade neither Tilden nor Attorney General Charles S. Fairchild to act. He already had protested at many of the settlements made with Tweed's colleagues, by which they received immunity in return for information or small amounts paid to the city's treasury, and now he resigned in disgust. It seemed to him and to many that the campaign against Tweed's ring was turning into a campaign merely against Tweed, and that the reform movement which had appeared to hold such promise for the city in all its aspects was beginning to fail.

Chapter 9 DESPITE THE PUBLIC EXCITEMENT of Tweed'S three trials, his flight and capture, during those years the pace and effectiveness of the reform movement at all levels of government began to decline. In the same period within the Association a number of its most important members ceased to be active in its affairs. For both reasons after 1873 the emphasis of the Association's actions began to change: increasingly it concentrated on the problems of the profession and ignored those of government. The change was truly one of emphasis rather than of kind, for the problems of the profession, as much as those of government, involved reform; nevertheless, by 1883 the Association was recognizably different from what it had been ten years before. The first sign that the reform movement might be faltering, at least in New York, was the defeat of the proposal for an appointed rather than an elected judiciary. And this slackening appeared, as men soon realized, before any of the larger issues of reform were resolved for the better. Despite the court victory over Tweed, for example, nothing fundamental in the city's government had yet been changed. As one contemporary journalist observed, "The mere fact ... that the better element in New York City sustained itself in the bitter struggle . . . necessarily implies very little so far as the future is concerned. It merely proved that as late as 1871 an approach to a government republican in form was not yet impossible in New York City." 1 Many men still doubted that American politicians, using American forms of government,

What America can show the world

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could govern large cities in any way which did not lead to corruption on a large scale. Even the one victory of the reform movement in these years increased that doubt. In 1874 Tilden had been elected governor on a reform ticket, and in the following year, despite a hostile legislature, succeeded in exposing the operations of a canal "ring." The evidence he uncovered implicated men of both parties, in the legislature and in business, who were accumulating fortunes through fraudulent bills for repair of the state's canals. The victory for reform was real, but the revelation once again of graft and corruption in the legislature, on a scale of millions of dollars, was sickening. As the country celebrated its centennial year, 1876, James Russell Lowell, in a poem for the Nation, reflected on the significance of America in history. He had Columbia, puzzled what she should display Of true home-make on her Centennial Day,

ask Brother Jonathan, who advised her: Show 'em your Civil Service, and explain How all men's loss is everbody's gain ... Show your State Legislatures; show your Rings; And challenge Europe to produce such things As high officials sitting half in sight To share the plunder and to fix things right ... ~

The connection between the rings and the state legislatures by now was plain to everyone and, in New York at least, was clearly one of the chief difficulties in the government of cities. The control exercised by the legislature over the cities removed too many 0 In the Nation, August 5, 1875. The poem is not reprinted in Lowell's Collected Works. At the Centennial celebrations, held in Philadelphia on July 4, Evarts was the chief speaker, and he presented a more conventional and cheerful picture.

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of the decisions regarding them to Albany, where it was easier for the politicians than the citizens to influence the results. Perhaps with this in mind, Governor Tilden appointed a commission to propose a new form of government for all the cities of the state. Evarts served as chairman, and including him, six of the ten commissioners were members of the Association. 0 Their report, submitted to the legislature in March 1877, recommended that the legislature and the cities be separated as much as possible. This they proposed to accomplish by restricting the legislature's function to passing only the most general laws with regard to cities while leaving all the details to the cities themselves; in short, home rule. They also proposed to concentrate the executive power in the mayor, to concentrate all legislative power, except such as related to finance and taxation, in an elected board of aldermen, and to concentrate the power of finance and taxation in a board of finance elected by tax and rent payers. This last caused the greatest controversy, for it seemed discriminatory. There were also provisions for ensuring efficiency of administration and for limiting indebtedness. The commission's report was greatly admired, but the legislature was slow to consider it. Tilden had run for President of the United States in 1876 and had been succeeded as governor by Lucius Robinson, who was less urgent about reform or in any event less skillful in advancing it. But in the end the legislature, prodded by citizens' groups, approved the report. This was not a final decision, however; for the provisions to become law, the report had to be approved by two legislatures, and the subsequent legislature rejected it- chiefly, it seems, for lack of public interest. By 1878, apparently, for many citizens, the scandals of the 0 The other £ve were William Allen Butler, James C. Carter, Samuel Hand, Simon Sterne and Joshua Van Cott. Also on the commission were John A. Lott, Henry F. Dimock, E. L. Godkin, editor of the Nation, and Oswald Ottendorfer, editor of the Staats-Zeitung. Their report became famous and very widely read when Bryce made it the basis of his chapter "The Working of City Governments." James Bryce, The American Commonwealth (New York, Macmillan, 1891, zd ed., rev.), Vol. 1, Part II, Chap. 51.

Decline of the reform movement

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Tweed ring, the charter, the corrupt judges and the stolen fortunes were already too far in the past to be a call to action. On this front therefore, as with the method of selecting judges, the reform movement ended in defeat. The charters of various cities, including New York, were reformed piecemeal, and nothing fundamental was accomplished. Boss Tweed was succeeded at Tammany Hall by "Honest John" Kelly, who made a parade of virtue but continued (though more discreetly than Tweed) to rob the city's treasury. When Lord Bryce visited the country in the 188o's, he concluded, "There is no denying that the government of cities is the one conspicuous failure of the United States." 2 And though he talked of cities in general, he singled out New York because it "displayed on the grandest scale phenomena common to American cities, and because the plunder and misgovernment from which she has suffered have become notorious over the world." In the city itself, Tweed died in jail. After his offer to testify in return for freedom had been rejected and he began to sense that men were forgetting him, he lost his spirit. Imprisonment sapped his health, and his hair turned white. Toward the end of March 1878 he caught a cold which developed into pneumonia, and on April 12 he died. Five days later he was buried in Greenwood cemetery. His death was hardly noticed by the citizens whom eight years earlier he had ruled and robbed. In the end few of his colleagues had been prosecuted, and fewer still had been forced to restore to the city even a small part of the money they had stolen. Tilden's biographer, Alexander C. Flick, quotes several estimates of the amounts taken, ranging from $so,ooo,ooo up to $zoo,ooo,ooo, if some fraudulent bond issues are included. He also estimates that the city received back only about $876,ooo. 3 Small wonder that O'Conor had resigned and that many felt Tweed had been made a scapegoat. This rather dismal end to the prosecution of Tweed and members of his ring has always been something of a puzzle. It is clear

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that the new mayor of the city, William H. Wickham, was not cooperative, although he was a member of the Committee of Seventy. But he had been elected mayor as Tammany Hall's candidate and was more interested in building his own political machine than in pressing suits which alarmed his fellow politicians. Through his corporation counsel he succeeded in firing Peckham and Tremain from their jobs as prosecuting attorneys and substituting men who did nothing. Similarly, the attorney general, Charles S. Fairchild, although a member of the Association and a reform Democrat, seems to have dragged his feet and deliberately refused to reach any decision on how to use Tweed's offer to testify. 0 Even Tilden has been accused of losing interest in the prosecution of ring members. But the evidence for this is slim and does not go beyond the fact that, despite O'Conor's urging, he apparently did not press Fairchild to act, and that O'Conor's resignation immediately followed an interview with Tilden. The theory held by those who question Tilden's purpose is that he feared if Tweed were allowed freedom in return for assisting O'Conor, he would implicate some rich and prominent families in the city who had also had their hands in the city's treasury. Many of these families, the theory goes, were contributing funds to Tilden's campaign for President, and he was not eager to have them prosecuted. If this was so , Tilden soon knew himself what it was to be the victim of a deal. As the first returns of the Presidential election came in, he appeared to have won an easy victory. He had 4,284,885 votes to 4,033,950 for Rutherford B. Hayes, a plurality of a quarter million, and with 184 electoral votes assured, he was only one shy of the total needed. Hayes had 167 electoral votes, and

° Fairchild made his reputation in the cases arising out of the canal ring investigations. From 1887-1889 he served as President Grover Cleveland's Secretary of the Treasury and had an important role in the nomination of Cleveland for another term as President in 18gz. He also took an active part in the municipal reform movement of 1894 which, in opposition to Tammany Hall, elected a reform mayor. He died in 1924. (For his Memorial by Lewis Cass Ledyard, see 31 ABCNY Reports 255, P· 484. )

Hayes-Tilden election controversy

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four states with 22 were in doubt: Florida with 4, Louisiana with 8, Oregon with 3, and South Carolina with 7· To win Tilden needed only one of these, but Hayes needed all four; and all but South Carolina seemed to be for Tilden. Nevertheless, from each of the four states came two certificates, one giving the state's electoral votes to Tilden, the other to Hayes. The Constitution provides that "the President of the Senate shall, in the presence of the Senate and the House of Representatives, open all certificates and the votes shall then be counted." 4 But counted by whom? If the president of the Senate (which was dominated by Republicans) counted, and thereby ruled on the validity of the certificates, Hayes would be President; if the House of Representatives (which was controlled by the Democrats) counted, Tilden would be President. If no agreement could be reached, then at the end of Grant's term it seemed entirely possible that the country might slide into anarchy and perhaps again into civil war. Faced with this dilemma, Congress proposed to form an electoral commission to be composed of five men each from the House, the Senate and the Supreme Court. After hearing arguments on both sides it would rule on the validity of the certificates from the four states. Tilden agreed to this plan, but reluctantly. In Washington, where the Republicans controlled both the Senate and the executive branch of the government, they had the advantage. Around the country, on the other hand, public opinion was strongly in favor of Tilden, and many of his advisors urged him to take the question to the people and to create a pressure of public opinion that Congress could not withstand. The difficulty with this program was that it required Tilden to have qualities he lacked: physical strength, a loud, vibrant voice, and an emotional conviction that his cause, without qualification, was right. But after the campaign he was in poorer health than usual; his speaking voice was almost gone, and he genuinely was appalled at the thought of doing anything that might lead to vio-

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lence and perhaps to another civil war. In the words of one of his biographers, "Here was a man who perhaps faltered in the greatest crisis of his life . . ." The sentence continues, however, "but whose commanding dignity and equable philosophy deprived even frustration of ignominy." 5 The plan for the electoral commission originally called for appointment of seven Democrats and seven Republicans and, as a fifteenth member, Judge David Davis of the Supreme Court, whom both sides believed to be nonpartisan. At the last moment, however- and not inadvertently -the legislature of Illinois elected Judge Davis to the Senate, and with the approval of both sides Judge Joseph P. Bradley was named in his place. Bradley was to prove that he could be influenced.'* On February 2, 1877, the commission met in the Senate chamber where the impeachment of President Johnson had been tried. Again Evarts was present, acting as chief counsel for the Republican party. He and his three colleagues were opposed by nine lawyers for the Democratic party, of whom the most distinguished was O'Conor. The arguments continued for four weeks, at the end of which the commission, dividing 8 to 7 on party lines in every case, awarded the electoral votes of all four states to Hayes. On March 5 he was inaugurated. The country acquiesced in the decision, though in many sections with anger; and although Hayes was able and honest, he accomplished little. Not only the Democrats but many Republicans believed that he had achieved the office by fraud, and that corruption, instead of being cleaned out of Washington, had captured it. Throughout his term Hayes was never able to count on the moral support of the country or to anticipate a second term.

* Most historians accept it as true that Bradley changed his opinion on the validity of the certificates from Florida after a visit, at dawn on the day of the vote from Grant's Secretary of the Navy, George M. Robeson, and the Republican s~nator from New Jersey, Frederick T. Frelinghuysen. E.g., Samuel Eliot Morison and Henry Steele Commager, The Growth of the American Republic (New York, Oxford University Press, 1962, sth ed.), Vol. 2, p. 76 fn., citing Selected Writings of AbramS. Hewitt, edited by Allan Nevins, pp. 172-173.

The rise of business in government

127

Almost immediately the deal by which he had been elected became clear. The Southern Democrats had abandoned Tilden and joined the Republicans on condition that the federal troops be withdrawn from the Southern states, which would then be left to the Southern Democrats to run as they thought fit. The real losers in this part of the deal were the Southern Negroes, abandoned by the party of Lincoln. In the North the losers were the reformers. Very few businessmen in this gilded age of business wanted Tilden, for he represented reform and probably regulation. Under Grant politics had become increasingly a branch of business, and this trend continued until senators, for example, ceased to represent people and began to represent business interests. They became oil senators, sugar trust senators or railroad senators. Tilden might not have been able to reverse this trend, but he had campaigned on the promise to try, and with his defeat, although he was the clear choice of a majority of the people, the chance for any fundamental reform at Washington was lost. In Washington, as well as in Albany and New York, businessmen and their lawyers continued to exert a corrupting influence on the government. One immediate effect of the disputed election was that both Evarts and Tilden ceased to be active in the Association. Eight days after Hayes was inaugurated, he appointed Evarts Secretary of State, and Evarts moved to Washington. Thereafter, though the members of the Association continued to elect him their president for another two years through 1879, he did not attend the meetings and, so far as can be discovered, did not correspond about the Association's affairs. As for Tilden, the race for the Presidency had shattered him physically. His left hand had become crippled with arthritis, and he was developing a palsy. His mind, however, remained clear, and he continued to play a leading role in Democratic politics. But though the members of the Association continued to elect him their first vice-president for another two years, Tilden, like Evarts, no longer attended their meetings or followed their affairs.

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Causes and Conflicts

He concentrated his interest and his limited energies on state and national politics. Among its chief officers, therefore, the Association had two figureheads, and the work of leadership was done by others. The man who should have replaced Evarts in influence, if not also in title, was Henry Nicoll, who had served four years as chairman of the executive committee. But in January 1875 he too had dropped out of the Association, and in most unhappy circumstances. To make good some losses in a granite quarry in Vermont, he had used funds given to him in bust, and when his clients had demanded an accounting, he was unable to produce the money. His fall had been one of the sensations of the winter, and after the newspapers broke the story on January 23, G. T. Strong exclaimed in his diary, "vVhom can we tmst, and who can feel sure of even his own honesty?" Later, after attending a meeting to elect a tmstee for Columbia, he wrote: "When Halsey, our clerk, read the names of men who had been nominated for the vacant tmsteeship, it was sad to hear him slur over Henry Nicoll's name as being a name, strictly speaking, before us but for which, of course, nobody could vote. I should have voted for him a month ago." 6 At the Association's meeting on Febmary g, 1875, the chairman announced that Nicoll had submitted his resignation, and on motion it was accepted without comment. Four and a half years later he died. As he was then no longer a member, the Association took no note of his death, and thus because of his single error, Nicoll, who perhaps had done more for the Association in its first five years than any other member, departed from it without lament on its part, and later from life without a Memorial. Soon after Nicoll's resignation Charles O'Conor began to retire from practice. As one of his last actions, almost immediately after his victory in Tweed's civil trial, he turned to the Association with an extraordinary request: that it should investigate certain

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charges which he claimed had been made by the New York Times against his professional reputation. On March 26, 1876, the Times had published an account of one of O'Conor's most famous cases, the Forrest divorce, in which the wife of Edwin Forrest, the great actor, had won a divorce with alimony on the ground of her husband's adultery. The trial had taken place in 1852, and, as the Times summarized it, "The beauty, culture and high social position of the plaintiff and the celebrity of the defendant" had made the case "the talk of the country." But that was twenty-four years ago, and the Times devoted most of its article to a discussion of O'Conor's part in the case, offering as news the fact "reported recently" that O'Conor "instead of having given his services gratuitously" to Mrs. Forrest, had "retained nearly the whole of the alimony as fees." The story recounted how, after the trial, he had accepted a silver vase from "thirty of the most estimable ladies of this city, who kept their names secret" and a silver pitcher from "sixty of the most prominent members of the bar," all the time allowing his admirers to believe that he had given "his services gratuitously to a woman without means who had been badly treated." By the end of the article O'Conor was portrayed as a very false knight indeed. But the truth was, as O'Conor soon would show, that he had never agreed to waive his fee, and no one in 1852, neither the ladies nor the lawyers, had understood that he had. Further, his fee had been relatively small, and by far the greater part of the money he eventually received from Mrs. Forrest had been repayments of loans and court expenses. O'Conor was indignant with the Times and also with the New York Sun, which had republished the article. He might have sued them for libel and probably would have won. He left no explanation of why he chose a different course, but his actions suggest that he was trying quite deliberately to create a different proce-

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dure for protecting a man's reputation, one which would not turn on the issue of pecuniary damage. First, he prepared and had printed an address to the Association, a pamphlet of thirty-five pages in which he began by stating: Your society was organized, among other objects, "to maintain the honor and dignity of the profession." Its constitution provides that any member may, on conviction, be "suspended or expelled for misconduct in his profession." My object in addressing you is to notify you of a duty imposed upon you by that provision. 7

He then quoted the Times article in full and offered evidence as to why it was false, and, at the Association's meeting on Apriln, asked for an investigation of the charges which he felt the Times had made against him. After a debate the members voted to take the matter away from the grievance committee and give it to a special committee which was to arrange for a tribunal. Within a few weeks the committee announced the names of five men who had agreed to act as a court of inquiry. John A. Dix, who had been a United States senator from New York 1845-1849, ambassador to France 1866-1869, and governor of the state 1873-1875, would serve as chairman, and the members were to be the Rev. William Adams, president of Union Theological Seminary, and three distinguished lawyers, John K. Porter, Wilson G. Hunt and Howard Potter. Of these only Porter was a member of the Association. The tribunal, in the name of the Association, held an open meeting in Chickering Hall on April 29, to which the editors of the Times and the Sun were invited. They did not appear. O'Conor examined a number of witnesses as to what had occurred in 1852 both during and after the trial and as to what the understanding of the community had been about his service to Mrs. Forrest, and he presented detailed evidence of his financial dealings with her. The tribunal concluded, without mentioning

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either paper, that O'Conor's conduct throughout had been exemplary. The Association formally adopted the decision of the tribunal, printed an account of the proceeding and distributed s,ooo copies of it. 8 Today it is hard to gauge whether O'Conor's insistence on an investigation was merely the act of a fussy seventy-two-year-old egocentric or an interesting effort to establish a precedent, outside of actions for libel, for dealing with irresponsible newspapers. Probably it was a mixture, with the egocentric portion rather minor, for Dix and the others would hardly have given their time and reputations to an affair of personal pique. Yet although the precedent was started, with the general approval of the public and the bar, it has never been followed. Even within the Association the episode is unique. Shortly afterwards O'Conor retired to Nantucket, and his departure, together with that of Nicoll, Evarts and Tilden, all in the period 1875 through 1877, allowed new men to come to the fore within the Association. Most of them were lawyers of middle age and local reputation, and the projects which they advanced most successfully, in part because of the decline of the reform movement, were projects outside the field of government. These were the founding of a state bar association and the reform of the rules for admission to the bar. Both were projects which the Association, in its very first report of its plans to members of the bar at large, had suggested should be undertaken .., The first of these to be achieved was the state bar association, and though there was considerable work to its founding, the report of the committee appointed for the job rings with pleasure. Under the chairmanship of Elliott F. Shepard t it began by sending out a questionnaire to 1,300 of the estimated 2,500 lawyers in the state who practiced outside New York County. It was not sent " See Chapter 3, p. 29, and Chapter 4, p. 40.

t Other members of the committee were Albert Matthews, Clifford A. Hand, Hamilton Odell and Robert W. De Forest. Shepard later became president of the state bar association for the year 1884-1885.

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to every lawyer in the larger towns, but at least one lawyer in every town received it. The first of its sixteen questions was, "Do you favor generally the formation of a State Bar Association?" The reply was 306 to 4 in favor. Though Shepard did not make a point of it in his report, such a response represented a strong vote of approval by the bar at large for the Association's actions in its first five years. In answer to another question, 239 lawyers named Albany as the proper place for permanent headquarters, and 21 named New York. All sorts of answers were received to questions about initiation fees, dues, and the number of meetings; and with regard to a name, by far the greatest number of lawyers thought an appropriate one would be "The Association of the Bar of the State of New York." This too, in a sense, was a compliment to the Association. Finally, 253 lawyers stated that they would join a state association if it were founded. 9 On the basis of this response the Association on April 11, 1876, voted that its committee continue with the project, and Shepard and his colleagues planned a convention to be held at Albany. The lawyers of the state, organizing themselves by the state's eight judicial districts, would send twenty delegates from each district. The first district, New York County, was represented by twenty members of the Association, led by Shepard. When the convention met on November 21, 1876, the steps of organization closely followed those of the city Association. First the delegates formed a voluntary association under the name New York State Bar Association and elected John K. Porter~* of the first judicial "Porter, 181g-1892, had a theatrical style in court and was involved in a number of the famous cases of his day. He assisted Evarts in the defense of Henry Ward Beecher, and the two deliberately used Porter's flamboyance to vary Evarts' rather cool reasonableness. He defended President Grant's private secretary, Orville Babcock, for his part in the "whisky ring" in St. Louis and won the case, although some historians say that Babcock escaped only because of Grant's protection. His most famous trial, however, was the prosecution of Charles J. Guiteau, who assassinated President James A. Garfield in 1881. Guiteau's political friends tried day after day to disrupt the trial and often succeeded in turning the courtroom into a scene of melodramatic disorder. Nevertheless, Porter succeeded in making his

A state bar association founded

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district, a member of the city Association, its first president. The following year on May 2, 1877, under the same name and with Porter still its president, it incorporated, with the following purposes: . . . to cultivate the science of jurisprudence, to promote reform in the law, to facilitate the administration of justice, to elevate the standard of integrity, honor and courtesy in the legal profession, and to cherish a spirit of brotherhood among the members thereof. Thus there came into being a voluntary association of lawyers, drawn from every county in the state, which could now act as the statewide head of a system of local associations - a role which the Association in New York City probably could never have fulfilled because of local jealousies. Possibly the Association gratuitously gave up some rights of preeminence by its act, but its wisdom soon was apparent. Under the shelter and guidance of the state association, local groups began to form in almost every city and county, and the profession in New York State was organized on the voluntary lines first set down by the Association. Some lawyers today regret this, believing that the profession would be better off if the various associations were not voluntary: that is, if every lawyer, in order to practice, had to join either his local association or the state association, or perhaps both. Such a form of organization is known as an "integrated bar," in the sense of individual parts made into a whole. In some form in twentyseven states, mostly the newer Western states, the profession is organized in this fashion. 10 At times in New York, notably in the 192o's, a movement to substitute an integrated for a voluntary system has started but so far has always failed. Probably in 1876 the idea was beyond the imagination of most lawyers and would have struck them as tyrcase, and Guiteau was convicted and hanged. For two accounts of Porter, see Theron G. Strong, Landmarks of a Lawyer's Lifetime (New York, Dodd, Mead, 1914), p. 241, and his Memorial, 7 ABCNY Reports 77, p. 76.

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annous. It is unlikely, for example, that the two or three thousand lawyers practicing outside New York County would have allowed themselves to be forced into a statewide organization which would have been dominated by the four thousand lawyers of New York County. The Association therefore probably assisted the profession to organize in the only way likely to succeed-and in several respects this success was great: in the number of groups that eventually organized and in the fact that at least some of the groups accepted the idea that the purpose of organization was reform. With its other project, the revision of the rules governing admission to the bar, the Association had a more difficult time. (For a summary of such rules from 1777 to the present, see Appendix B, pp. 385-88.) Like the method of selecting judges, the rules of admission had been changed at the constitutional convention of 1846, and again for the worse, in the opinion of most of the leading judges and lawyers. Before 1846, in order to be admitted to practice in the state's highest court a man was required to have spent six years after his eighteenth birthday working in a law office and to have passed some sort of examination, however perfunctory, administered by the court. But in 1847, the voters of the state ratified the new constitution which, in response to the people's desire to lessen distinctions between men, allowed any man over twenty-one with "the requisite qualifications" to practice in all the courts of the state. The courts still required some examination of a candidate's learning and ability, but as these often continued to be perfunctory, many men with little legal training were admitted. Soon the quality of the bar, and of the bench, began to decline. Partly to meet this problem, in the following years four law schools opened, at Columbia and Hamilton Colleges and at Albany and New York Universities, and soon all four had persuaded the legislature to authorize them to grant diplomas which would

Requirements for admission to practice

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automatically admit their graduates to practice. At Hamilton College the examinations for the law diploma were given by a committee of three lawyers appointed by the Supreme Court, but at Albany University, Columbia College and New York University the examinations were given by the school's faculty. The courts, and through them the legal profession, had lost control of admission to practice. Lawyers and judges immediately began to protest. None of the four law schools required a college degree for admission, and the catalogues of three of them -Albany University, Columbia College and New York University- stated "No examination and no particular course of previous study are necessary for admission." At Albany, only 36 weeks of courses were required to receive the diploma and be admitted to practice. At all the schools except Hamilton the examinations were given by the professors who had taught the courses, and however honest they were, they still had a financial interest in graduating as many students as possible. With the sudden return of the veterans after the Civil War, the law schools became the quick and easy route to the practice of law, graduating hundreds of men each year. Though many of these doubtless were competent lawyers, others were not, and it was frequently said that the courts were crowded and the calendars clogged by men who simply did not know how to advance a law suit. As a result, by 1870 lawyers and judges all over the state were protesting to the legislature that the rules of admission should be tightened and, above all, that the privileges of the law schools should be revoked. The issue was confused, however, by the fact that one school, Columbia, had been developed by its founder, Theodore W. Dwight, into the best law school in the country, a position which it held for almost a quarter century, roughly 186o to 1885. Foreigners wrote admiring articles about it and, like everyone else,

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were greatly impressed by Dwight's extraordinary ability to organize his lectures and to make complicated ideas clear. 0 He was without question one of the great teachers of his generation. He also was extremely active in defending the privileges of the law schools, even to the point of himself arguing in the Court of Appeals, and successfully, that the legislature had the power under the constitution to make the grant. This confusion of the issue caused by the preeminence of Columbia was compounded for members of the Association by the fact that Dwight, an active member of the Committee of Seventy, was one of the Association's founders and most active members. He was warmhearted and, like most great teachers, inspired great affection in those who knew him. Probably to many of the members, any action on their part which implied that Dwight or his school was in need of reform would have seemed a sacrilege. Their regard for him personally appears the best explanation of the curious way the Association finally sidled up to the problem of admissions to the bar. The question of revising the rules of admission was raised in the Association in its first year, 1870, by a member who proposed that a committee study the problem and make recommendations. The proposal came at the end of the meeting, and consideration of it was postponed- as it turned out indefinitely. Three and a half years later, in 1874, it was raised again and this time referred to the committee on legal education. But nothing was done. Then, at a meeting on November g, 1875, the question was raised by Lewis L. Delafield, who suggested that it be referred to a special 0 Dwight taught by expounding principles rather than by having the class read hundreds of cases in order to construct the principles for themselves. The latter method became famous under Langdell at Harvard Law School, and Dwight's last years at Columbia were made very unhappy when the faculty and trustees, against his wishes, adopted Langdell's "case" method. He resigned in 1891, and whether Columbia had treated him well or poorly was much debated. He died in 1892. (For short accounts of Dwight, see Strong, Landmarks, p. 252, and his Memorial by James C. Carter, 8 ABCNY Reports 8o, p. 93·)

Conclusions of Delafield's committee

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committee of five. The members present approved, and Delafield was immediately appointed the committee's chairman. 0 It is unlikely that the members of the Association were prepared for either the speed or the effectiveness with which Delafield and his committee worked. Just seven weeks later at a meeting on December 28 Delafield presented the report, thirty-seven pages in all, including five tables of statistics. Almost certainly it was not read at the meeting, but it was accepted, and 3,ooo copies were ordered printed and distributed "among the Judges and the profession, under the direction of the Committee." Perhaps Delafield and his committee were fortunate that their report was accepted and distributed before being read by the members at large, or it might never have been accepted at all. It is a blunt statement of the evils of the privileged law schools. The committee stops to pay a compliment to Dwight and then moves on to the attack: "Many students seek these schools in the expectation of gaining an easy admission to the bar, and this is conspicuously put forward in the catalogues as an inducement." There were more such statements, all true and all lacking the pleasantries with which men usually soften unpleasant truths. The report closed with some resolutions proposing that the legislature amend the laws so that law school graduates would be admitted to the bar only after a two-year course and one year of clerking for a practicing lawyer. The body of the report also recommended public examinations even for law school graduates, although for the moment the committee did not include that in the resolutions which it proposed the Association adopt. Debate on the resolutions continued over three meetings, on February 8, 14 and 23, 1876. At the first, Delafield moved their adoption and was opposed by Dwight. At the second, Charles Da Costa, a member of the committee, spoke for the resolutions and "Other members of the committee were Alban P. Man, Edgar S. Van Winkle, Charles M. Da Costa and Montgomery H. Throop.

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was opposed by Professor David R. Jaques, head of New York University Law School. At this point, after a motion to table the matter was defeated, Dorman B. Eaton tried to offer a compromise in a series of resolutions less damaging to the law schools but increasing the power of the Court of Appeals. But before these could come to a vote, Elihu Root offered still another set of resolutions favoring the law schools even more. By this time the members were in some confusion as to the differences between the resolutions, and the meeting adjourned for a week. When it resumed it became a parliamentarian's delight, with amendments to amendments and motions to postpone debate, to adjourn, to substitute parts of sets of resolutions, and to limit speeches "to five minutes unless unanimous consent be given." Finally the report was returned to the committee, which was directed to submit not different but "additional" resolutions. Under the circumstances it was a meaningless order, and Delafield and his committee did nothing more. The Association in the end took no action, thus in effect supporting Dwight. Delafield, however, was not defeated. His committee's report was printed and in circulation, and its statements and conclusions were unanswerable. Furthermore, with the Association's name on it, it looked as though it represented the Association's position, and undoubtedly many persons so took it. Even historians of the Association have found it easy to forget that Delafield, on the barricade, was merely a member of the Association and not its representative. During the summer at a meeting of the American Social Science Association in Saratoga he gave a strong speech, "The Conditions of Admission to the Bar," which was reprinted in the Penn Monthly.U His arguments, when joined with those of many others around the state, eventually prevailed, and in 1882 the law schools finally lost their privileges. The Association's role in this struggle was not glorious, though doubtless many of its members were delighted with Delafield's performance. But the fact that the Association was unable to come

The Association idles in debate

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to any conclusion on a subject so relevant to its purposes was a sign of weakness. The sense of urgency about reform, which a few years earlier had united the members, plainly was dwindling. When faced with difficult problems they now tended to talk, and even to dispute with each other, rather than to act. Ensuring honest and competent judges, for example, was perhaps the most difficult and also the most important problem before the Association, and it was one that continued year after year. But it was also one that tended to divide the members along the lines first drawn by Evarts and Nicoll in 1870, at the meeting called to organize the Association. Always since then there had been some members, following Evarts, who were eager to take action to improve the judiciary, and others, following Nicoll, who thought action was inopportune or inappropriate. In the early years of the Association, when the reform movement was at its strongest, the members had united in the actions to impeach Barnard, Cardozo, McCunn and Curtis. In 1874, when Grant had nominated his Attorney General, George H. Williams, to be Chief Justice of the United States Supreme Court, they had opposed Williams on every possible ground, stating to the public, and by letter to the President and every member of the Senate, that Williams was "wanting in those qualifications of intellect, experience and reputation" needed for the post. And partly because of their outcry, Grant had withdrawn the nomination. 0 But in the years following, they failed several times to reach any conclusion about a judicial nomination. 12 Often the meetings, as in the dispute over the law school resolutions, would become clogged with motions and amendments to resolutions, and the frequency of motions to adjourn suggests that many of the members present were bored with the play of words. As a result, despite "The Association's action produced in The Daily Register for January 8, 10, 12 and 14, 1874, an amusing exchange of letters by three anonymous authors who signed themselves "Lex," "Censor" and "Fairplay." Their opinions ranged from "it is an impertinence to take action" (Lex) to the declaration that what was needed was an association "capable of going further and accomplishing more" (Censor). Fairplay, as might be expected, was in between.

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their strong drive at the beginning to improve the judiciary, after 1874 very little was accomplished or even attemptedY The members were aware of this and appointed a committee to recommend a plan for handling nominations. 0 But the ensuing report, by the lack of force in its language, only points up the Association's reluctance to come to any decisions and to act. If two men, for example, were nominated for judicial office, and one was good and the other bad, the committee proposed merely to "urge upon our clients and friends and the public at large the vital importance, without regard to party affiliations, of supporting and electing fit and proper persons for judicial office." The committee did not promise to see to it that the good man was elected. In its report it announced to the world that "any active participation in a canvass for judicial office, would be distasteful to us," and then added that if action was necessary "we should not shrink from it." It also declared, "We value our building and our library, and the social advantages of our Association." The committee did not seem to realize that in the context of a report on judicial nominations even to talk of such things as "social advantages" was to suggest that they were, in fact, the chief objects of concern. Doubtless "Honest John" Kelly of Tammany Hall was delighted to learn that "any active participation" was "distasteful" to the Association. Short of trying to recall the infamous Cardozo to the bench, he was assured of an almost free hand with his nominations. What he feared was an Association spoiling for a fight. The report, which was adopted by the Association and taken generally as a declaration of its policy, forecast that policy accurately. On a few occasions in the coming years, the Association was to take a stand on some candidate for office or some problem concerning the judiciary, but for the most part it ignored them. After the failure in 1873 to persuade the people to return to an appointed judiciary, the Association might have been expected to "2 ABCNY Reports 24. The committee members were Everett P. Wheeler, chairman, Alban P. Man, Peter B. Olney, Clifford A. Hand and Hamilton Odell.

A different emphasis

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work out another approach to the problem- perhaps in conjunction with the new state bar association. But no general plan was put forward to the public or even debated privately. The Association was entering a period in which it would concern itself more with its building, its library and its social advantages.

Chapter 10 BY 188o it was clear to laymen and lawyers alike that the Association, unlike the Committee of Seventy, would not dissolve once its first purposes were achieved or, under new conditions, became irrelevant. Despite the dwindling enthusiasm throughout the country for reform, and despite the departure of the Association's best-known leaders, such as Evarts and Tilden, it survived and increasingly gave the appearance of a permanent institution. A sign of this was a change in the conception if its president. With the election of Stephen P. Nash to succeed Evarts in 188o, it began a custom to elect a new president every two years, so that in its second decade the Association had five presidents whereas in its first it had had only one. This tended to emphasize the continuity of the Association rather than the personality of its leader. Further, by 1882, despite a countrywide depression which had caused a number of members to resign/ the Association had managed to increase its membership to 747 and to move into new quarters, at Nos. 3, 5 and 7 West zgth Street. These were three times as large as those at 20 West 27th Street and included a fireproof annex for the library and for the large assembly hall. Pictures of the hall show a long rectangular room with a high ceiling, plaster moldings and white paneling, which on the longer walls was divided into shallow arches containing bookcases. At the north end was a dais filling a large bay of three double windows, and at night, when the curtains were drawn, the presiding officers sat at desks of dark wood in a white hall and before dark curtains. Even in faded photographs the room has grace, and its effect of

The House at 7 West zgth Street

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color and fabric, though not of shape or size, would seem to have been carried over deliberately to the Association's present hall. The other rooms of the house at 7 West zgth Street, the address by which the joined buildings were known, were a billiard room, a parlor, several meetings rooms and, most important, the library. All were furnished in Victorian style: dark wood paneling, heavy floor-to-ceiling drapes, leather chairs, and on the walls, endless rows of portraits, etchings and caricatures of legal life. The lamps were both electric and gas, and in the library they were spaced two or three to a yard. Many had green glass shades. The photographs show rooms without much distinction but plainly comfortable and adapted to their purpose. The house was popular with members and much used by them. It also served well for large functions. Increasingly in this period the Association gave receptions, acting as though it represented the entire bar of the city. At various times it entertained the United States Supreme Court, 0 the New York Court of Appeals, and many individual judges upon their appointment to the bench or their retirement from it. Perhaps the most glittering occasion occurred on October 23, 1883, when the Association gave a reception followed by a dinner to honor Lord Coleridge, the Lord Chief Justice of England. Meanwhile it continued to publish its committee reports, which increased both in number and regularity; but in this second decade, the 188o's, one project soon dwarfed all others and for almost ten years dominated the Association's attention. This was its campaign to prevent the adoption of a civil code in New York, and once again it found itself opposed to the state's most contentious lawyer, David Dudley Field. At issue was the question whether the civil rights and duties of 0 This was on May 1, 188g. The Court was in the city for the centennial celebration of Washington's inauguration as President, an event which had completed the organization of the federal government. The inauguration took place on April 30, 1789, on the balcony of the Federal Building formerly standing at Broad and Wall Streets. The spot is now marked by a statue of Washington, erected in 1883. (See Minutes of the Association, Vol. 3, p. 158.)

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New York citizens should continue to be determined in most suits by the common law, as it had developed in the state for almost a hundred years and before that for centuries in England. The alternative position, which Field advocated, was that these rights and duties should be determined under the provisions of a code. The code would be the work of a commission appointed by the state to clarify the common law by organizing it in a schematic fashion, omitting or amending its concepts that were out of date, and reducing it to a statute. It seems true to say that the Association, which opposed even the idea of a civil code, never in its entire history fought another issue with the tenacity and determination that it brought to this. And Field, of course, as the man who wrote the code almost single-handed and organized those in favor of adopting it, fought back with equal determination. The proposed code was one of the four -on civil law, penal law, political law, and criminal procedure- which Field had developed in the period 1848-1865. He and many others considered them the natural complement of his Code of [Civil] Procedure, which the legislature had adopted in 1848, and naturally he and his supporters expected the legislature to adopt the other four. The first had proved successful, and so would the others. But in the decade 1865-1875 Field had been unable to persuade the legislature even to consider them. The five codes, like so many other legal issues in New York in the nineteenth century, had had their origin in the constitutional convention of 1846. That convention had been determined to reform both the procedure of law - how to get a case into court and advance it to a decision - and also the substance of lawthe principles which, once the facts are before the court, determine who wins."' As events turned out, reform of procedural law " For laymen, some hypothetical examples of procedural as opposed to substantive law may clarify this important distinction. Substantive law says: If you are knocked down by a horse and carriage, you have a right to sue for your broken ann and bmises. If you can prove that the coachman and not yourself was negli-

Field's Code of Procedure

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served as a preamble to reform of the substantive law. The procedural reform originated in article VI, §24 of the constitution of 1846 which required the legislature to appoint three commissioners "to revise, reform, simplify, and abridge the rules and practice, pleadings, forms and proceedings of the courts of record." The commissioners had been appointed promptly, and on the resignation of one, Field was named in his place. He soon became the commission's leader, and under him it produced two codes, one on criminal and one on civil procedure. Only the latter was adopted. It became law on July 1, 1848, and was known officially as the Code of Procedure and unofficially as the "Field Code." 0 It combined the courts and practice of law and equity, abolished the old forms of pleading, and for nearly thirty years, until it began to be amended beyond recognition, was the procedural law of the state for civil suits. It was a revolution in the practice of law, and a successful one. Though many lawyers grumbled at what Field had done, none ever seriously suggested a return to the old ways. And the success of this first revolution naturally stimulated those lawyers and laymen who hoped to reform the substantive law as well. gent, you can recover damages. The argument turns on: Was the defendant negligent? Did he let the horses run too fast? Procedural law says: To start a suit about carriage accidents, you must file the complaint with the court clerk within a year after the accident. Further, within thirty days after filing the complaint you must inform the defendant, in a way that meets certain tests (i.e., it's not fair merely to tell his cousin) that you have started the suit. The argument turns on: Have you done the right thing, in time, to advance to the next point? Procedural law forces your opponent into court, where you can charge him with his misdeeds face to face. Substantive law then detem1ines who wins. Laymen are apt to think procedural law is artificial and a bore, and they are right; lawyers know that getting the opponent into court is half the battle, and they too are right. * As mentioned previously, there is sometimes confusion over what was the "Field Code." Most contemporaries in the period 1848-1886 were fairly consistent in using the term to mean the Code of Procedure, and they referred to the civil code as such. But about 1886, after the battle over the civil code had been under way for almost ten years, some contemporaries began to refer to it as the Field Code. This tendency grew stronger as years passed, so that today many lawyers probably think of the civil code as the Field Code. This book, however, follows the contemporary usage, since that is the way most of the basic documents are entitled. The Association's reports, for example, are on "the proposed Civil Code."

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The second project, however, had a much more difficult time. The constitution of 1846 provided in article I, §17, that ..the Legislature, at its first session after the adoption of this Constitution, shall appoint three commissioners whose duty it shall be to reduce into a written and systematic code the whole body of the law of this state." It was an enormous undertaking, and the commissioners who were appointed (Field was not one) never got it started. Finally in 1850 the law appointing them was repealed, and probably most men considered the project dead. The movement for reform of the law apparently had ended with only the civil procedural law reformed. But on Field's urging, the legislature revived the project in 1857 and appointed Field, William Curtis Noyes and Alexander W. Bradford the commissioners. 2 As before, Field dominated the commission. Under the law establishing it, the commission was required to divide its work into three codes, penal, political, and civil. The penal code was to define the crimes for which a person could be punished and also the punishment; the political code was to embrace the laws respecting the government of the state, the functions of its public officers, and the political rights and duties of its citizens; and the civil code was to cover the personal and property rights and duties of citizens. Of the three codes the civil code was by far the most important as it included all the law with which most men become involved: the laws of domestic relations, property, and business. It was undoubtedly the most difficult to draft and also the most certain to arouse opposition. The commissioners worked away, and finally on February 13, 1865, Field's birthday, the last of the proposed codes was submitted in a report to the legislature. But for ten years the legislature refused to act, though almost every year Field went to Albany to urge that the codes be adopted. Finally in 1875 he began to have some success, and in the winter of 1878-1879 both the Senate and the Assembly unanimously passed the civil and penal codes. They were vetoed, however, by Governor Lucius Robin-

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son. He was himseH a lawyer, and, from his veto messages, seems to have been unalterably opposed to any attempts to reform the law. Field naturally was indignant over the veto after the two codes had passed both houses unanimously, and at the next Democratic convention, at which the "regulars" renominated Robinson for governor, he led the Tammany delegates in a bolt from the hall and nominated as the Tammany candidate "Honest John" Kelly. With two Democrats in the race, the Republican candidate, Alonzo B. Cornell, won easily; but Field preferred him to Robinson. The following year, 188o, the Code of Criminal Procedure, the practice act for the penal code, was passed by both houses and vetoed by the governor. The tone of Cornell's message, however, was different from that of Robinson. He praised the code and all but promised to approve it the following year if only a few changes were made. At the next session it again passed both houses and on the governor's signature became law. The following year, 1882, the penal code also became law, and meanwhile the political code was being adopted piecemeal. There remained only the civil code, which had been introduced into the legislature in 1881 and laid over until the following year. Up to 1881 the Association had shown no interest in the passage of the codes, a fact which is remarkable considering their importance and the interest the Association was about to take. Even when Governor Robinson's signature was all that was needed for the civil and penal codes to become law, there were no debates on them in the Association or reports on them by committees. The reasons for this are obscure, although two may give a partial explanation. Throughout 1878 and 1879 the Association had conducted an investigation of fees charged by various officials of the courts and county and had discovered, as most lawyers suspected, that certain of them consistently overcharged for their services. The Association had published its evidence of extortion in a report ad-

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dressed to the governor and had started proceedings before him seeking to remove the men from office. As a result the governor retired the county clerk and required others to publish new schedules of fees and to keep their account books open to the public. The project, which was opposed bitterly by the officials, was a relatively large one for the Association, costing nearly $2,500, and it possibly may have diverted the members' attention from the progress of the codes in Albany. 3 Also until 188o the members of the Association- just as they had continued to elect Evarts and Tilden president and vicepresident, though both were absent- had continued to approve the appointment of Charles O'Conor as chairman of the committee on amendment of the law, even though he was wholly retired. As a result this committee, which should have alerted the Association to the progress of the codes, was relatively inactive. In 1881, however, under a new chairman the committee revived, and on March 15 it submitted to the Association a 24-page report upon the "proposed Civil Code." The report's tone was one of alarm, for as the committee pointed out, the code was already in its third reading in the Assembly and "is expected soon to pass that body." And though the committee confessed that it had had only a week to study the code before delivering a report, it concluded without hesitation that the code contained "many novelties and imperfections, which your committee regard as highly objectionable." 4 Field replied eleven days later with a 27-page pamphlet, which he opened by making sport of the committee's attempt to review in seven days a code which had taken eight years to prepare. The battle of pamphlets and speeches was joined, and thereafter it continued actively through the spring of 1888. The Association appointed a committee entitled "the Special Committee 'to urge the rejection of the proposed Civil Code,' " and in 1881 it began to issue an annual report which justified its title. On almost every possible occasion the Association sent

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members to Albany to argue against the code before the judiciary committees of the Assembly and the Senate. Some spoke on narrow subjects, such as the code's treatment of corporations, while others argued more generally against the idea of a code. Chief among the latter were Evarts, Carter and Dwight. Carter spoke three times. Evarts spoke only once, but on that occasion continued for four hours. Nevertheless, in the spring of 1882, both the Assembly and the Senate passed the bill enacting the code and sent it to Governor Cornell to sign. The Association hurriedly circulated a petition, entitled a "Remonstrance," urging the governor to veto the bill. And in the end he did, using expressions in his message which seemed to reflect the Association's arguments. Certainly most contemporaries considered the Association's influence to have been controlling. From Field's point of view the people's determination to have a code, as expressed by their representatives, had been frustrated a second time by an individual, the governor. And this time behind the governor was the Association. Refusing to admit defeat, Field and his supporters continued to push the code in the legislature while the Association, led largely by Carter and Dwight, continued to oppose it with speeches and pamphlets. The fight was one in which the people of the state and most legislators took no interest. Codification versus the common law was not an issue to arouse the masses, or even most educated laymen. Probably the majority of lawyers were against any change that would require them to learn new ways and therefore were against codification, but the battle itself was fought by as few as several hundred on either side. One contemporary writer, for example, estimated that "a working majority" of the Association, "probably a hundred lawyers," 5 was the active army opposing codification, and it is unlikely that Field's force was any larger. The Association's lobbying efforts, though steady and active, were addressed entirely to members of the legislature and the bar. On the whole, the debate was kept to a high level. There were

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some tart remarks about Field but, considering the extent to which his reputation made it safe to abuse him, not many. And he on his side was more restrained than in times past. Perhaps agehe turned eighty in 1885- was tempering his aggressiveness. In essence, his argument for a code was that a man should be able to find in a single book, written in a language that he can understand, the fundamental laws under which he is living. Under the system of common law, which New York then had for civil suits, this was not possible. The law, except where stated by statute, did not exist in generalities but only in specific cases which served as precedents for decisions in future cases. A man about to marry, for example, who wanted to discover the legal rights and duties of a husband and wife would have to read hundreds of cases, selected from thousands, and then make an educated guess as to how a court might rule in some future specific situation. Theoretically, in the opinion of many lawyers, the law did not exist, beyond an educated guess, until a judge called it into being with a decision. This theory of the common law was stated by an English reformer, Jeremy Bentham, as follows: "It is the judges ... that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. And this is the way the judges make law for you and me." The theory made Field, like Bentham, impatient. Speaking of the people's need to know the law, Field said: "It does not suffice to show them a law library, with its long rows of reports, digests and statutes, and to bid them help themselves. When they ask for bread, do not give them a stone. They want the law accessible and intelligible, and nothing will give them that but a code." 6 In his proposed civil code of 110 pages, he had a chapter on "Husband and Wife." It had eleven sections, all short, of which the second and third were:

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§z. The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto. §3. The husband must support himself and his wife out of his property or by his labor. If he is unable to do so, she must assist him so far as she is able.

Field believed that if the basic law was organized and stated in this fashion, rather than being scattered throughout individual cases, then as a first and most important result, the people would be more law-abiding. For "when they know the rules prescribed for their government, they conform to them and keep away from the courts. Few persons go to the law for the love of it." For him, therefore, as he once wrote in angry capitals, "The only real question is . . . WHETHER TilE LAW SHALL BE WRITTEN IN A CODE WHERE THE PEOPLE CAN FIND IT, OR LEFT IN TIIOUSANDS UPON TIIOUSANDS OF REPORTS, WHERE ONLY LAWYERS CAN FIND IT."

7

But from this first benefit, he insisted, others would follow. The court calendars would be less crowded with cases, for fewer disagreements would be taken to court. Cases which did go to court would reach a decision sooner, reducing the time from start to finish which often stretched into years. The financial burden on lawyers of keeping "thousands upon thousands of Reports" on hand and up to date would be reduced. And, finally, "besides the saving of labor and capital, there will ensue this additional advantage from a code, which is, that an opportunity will thus be afforded for settling vexed questions of law." It was the implications of this last "advantage" which angered his opponents most. If Field had been content to make a digest of the law, a schematic survey of general principles culled from the thousands of cases, he probably would have had the support of the Association as well as of the bar at large. But such a digest would not be the law, only a treatise on it. Field saw his job as something much greater. "The task of the codifier is to gather

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together all the rules that can be found in the statutes, reports, treatises or digests, separate the partial from the general, lay aside the obsolete, reconcile the contradictory, condense by rejecting superfluous words and avoiding repetition, arrange the results in fit order, and express them in perspicuous language." 8 Not only was he proposing to substitute a word like "beneficiary" for a Latin phrase like cestui que trust, which was enough to make some lawyers angry; he was also proposing that he, Field, single-handed should reform the law- without even a committee. Still more, he was proposing that the great principles of the common law, developed through centuries of judicial decisions, be taken out of the common law and turned into statutes. Though the judges would still make much law in cases not clearly decided by the statutes, the chief principles now would be set by the legislature rather than by the courts. The most famous and influential answer to Field's proposed code was a pamphlet written by James C. Carter at the Association's request and published early in 1884 under the title "The Proposed Codification of Our Common Law." The main theme of Carter's argument was built on a distinction he drew between "written" or statutory law, originated and occasionally repealed or revised by the legislature, and the "unwritten" or common law, which was revealed by the decisions of judges. Written law, he argued, was appropriate for certain branches of law in which certainty was of unusual importance, such as constitutional or political law and penal law. The unwritten law, however, was better for the affairs of daily life, such as personal relations, injuries and business. Further, with regard to unwritten law, Carter insisted that a judge did not make the law, at least not in the sense that Bentham and Field implied. Rather, "His office is to apply the existing standard of justice to the new exhibition of fact, and to do this by ascertaining the conclusion to which right reason, aided by rules

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already established, leads." That standard of justice which he italicized must rest, as he later explained, on "public opinion," which he in turn defined by stating: And what is this but saying that law, in order to be obeyed and enforced, must accord with the public standard or conception of justice? All well conceived efforts to make, or to declare, law, are therefore, efforts to apply this public, or, as we have styled it, national, standard of justice to human conduct. This national standard, more particularly stated, is the final result of the moral and intellectual life and culture of a nation, the product of all the influences, public and private, which tend to cultivate and develop men's conceptions of what is just, expedient and useful, and which is unconsciously perceived and felt by every individual member of society by reason of the fact that he is such a member, and exposed to like influences with his fellows. 9 This rather mystical view of the law, which owes a great deal to a German legal scholar, Friedrich Carl von Savigny ( 1779-1861), was probably the most influential part of Carter's argument. Elsewhere in the pamphlet he attacked some provisions of the proposed code, but of course any attack on a specific provision always could be met by an offer to redraft the provision. Ultimately the argument over the code came down to an opposition of principles: "written" law, the conscious work of a few codifi.ers representing the legislative or perhaps executive branch of a government, versus the "unwritten" law, as Carter defined it, evolving unconsciously from the folkways of the people and revealed only by the decisions of judges. Carter's concept was much in fashion at the time, for a number of extralegal reasons. When Napoleon I had introduced his codes, many Europeans had accepted them with pleasure, for they swept away the debris of feudal regimes whose legal systems long since had ceased to respond to the needs of the people. In New York this same revolutionary desire infused the men who fought the

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Anti-Rent wars, met in the constitutional convention of 1846, and voted to reform the procedural and substantive law of the state by adopting codes. This was Field's background. But by the 188o's when his civil code was before the legislature, though he was the same, the background had changed. German, rather than French, thought and techniques were in the ascendant, particularly after the defeat of Napoleon III in the FrancoPrussian war of 1870. American scholars were agog over the organization of German universities; scientists, over the accomplishments of German science; musicians, over German music. There was a similar movement in law. Carter in his pamphlet, for example, characterized the Napoleonic codes as merely selfserving tools of a despot. He exalted the common law of England as "the natural growth and development of free institutions through centuries of time." And though Carter's pamphlet did not, other writers soon carried the historical basis of these "Saxon" free institutions back to those Germanic tribes which, by maintaining their independence against the Roman Empire, escaped the Latin tradition of law. This change of feeling about the common law, when backed by the persistent lobbying of the Association, probably was the chief reason for the code's ultimate defeat. In 1847 the people and some of the lawyers had been impatient with the common law; in 1885 the people were unconcerned and most of the lawyers admired it. Copies of the civil code aheady had been adopted in Georgia ( 1863), California ( 1866), Montana ( 1872 ), and North and South Dakota ( 1872), and both sides poured a great deal of energy into arguing whether in those states the codes had proved good. But the evidence was always highly partisan and, if anything, tended to support Field. Only in his own state, it seemed, was the prophet without honor. Finally, in 1888, after a substantial majority in the Assembly had rejected the code, Field and his supporters admitted defeat and never put it forward again. But the Association's special com-

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mittee "to urge the rejection of the proposed Civil Code" continued to submit annual reports to the members through 1890. 10 For Carter the victory was something of a personal triumph, and as the philosopher of the winning side he was much in demand as a speaker at law schools and meetings of lawyers. Over the years he continued to polish his ideas and eventually prepared a series of lectures for Harvard Law School on "Law: Its Origins, Growth and Function." But before he could deliver them he died, in February 1905, and they were published posthumously as the final statement on law of one of the most brilliant and profound legal thinkers the country had produced. For the Association, too, the defeat of the proposed code was a great victory, one over which the members for years continued to rejoice. Edward W. Sheldon, writing in 1920 on the Association,s fiftieth anniversary, stated: This chapter in the history of law demonstrates the learning and devotion of the Association's representatives. They succeeded in saving the people of the State from an enactment that instead of clarifying would probably have brought our substantive law into lamentable uncertainty, and swamped the courts with litigation. Only the lawyers could have benefitted from such a labyrinth, and to their credit it should be noted that it was an association of lawyers that year after year stalwartly opposed the scheme until it was finally buried. 11 But soon fashions in thinking were changing once again, partly as a result of the increasing amount of statutory legislation which was introduced after World War I and which seemed to work well. By 1948 Roscoe Pound could write: In New York when you think of David Dudley Field you recall also his redoubtable adversary, the American apostle of the nineteenth-century historical jurisprudence, James Coolidge Carter. As American lawyers thought in the last quarter of the nineteenth century, Carter would have been rated the higher. As we think

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today, Carter has no longer a significant place in the science of law. . . . At that time, Field· was pronounced a magnificent battler for a lost cause. Today that could be said rather of Carter. . . . As we thought fifty years ago an American law school would not have been likely to hold this meeting to honor the memory of Field. As we think today we reckon him an outstanding figure in the history of our law and an exemplar of the faith in conscious creative law-making which we have come to accept. 12 The fact that other jurists and lawyers, including members of the Association, enthusiastically supported this appraisal has drained some of the Association's joy from its ancient victory. In the "Carter Room" at the Association, his portrait has not been turned to the wall, but members who know the history of the proposed civil code now gaze at it with a stronger sense of the uncertainty of reputation. In the terms of Carter's time the battle was fairly undertaken, and in terms of all time, nobly fought. Field, as usual, survived defeat by plunging into some new activity. In 1888-188g he served as president of the American Bar Association, and in 18go, at the age of 85, he presided at the Peace Convention in London. Twenty-seven years earlier, in writing to his brother, he had concluded: Now that my work is finished and as I look back upon it, I am surprised at the difficulties I had to overcome, and the little encouragement and assistance I have received. It seems as if every step I took was to be impeded by something laid across my path. I was opposed in everything. My life has been a continual warfare. My adversaries changed their tactics with the circumstances. When they were foiled in attacking my work, they attacked me personally, as a lawyer and a citizen. They called me visionary, agitator, self-seeker. This was perhaps to be expected when I undertook such radical changes in the face of the most conservative of professions. But he has little reason to complain of the number or violence of his adversaries who finds himself victorious in the end. As to any real service which I may have rendered to American or International law, and so to the cause of universal justice,

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of human progress and civilization, in short, as to any claim I may have to the title of lawgiver and reformer, I am willing to be judged by the good and wise while I live, and after I have passed away. One lesson, which I might perhaps have learned by reading, has been taught me by experience, and that is, that he who attempts reform must rely upon himself, and that all such enterprises have received their start and impetus from one, or at most a very few persons. 13

Field died suddenly on April 13, 1894, after returning from a trip to Europe. Because he was still a member of the Association, the treasurer, as was customary, reported his death to the executive committee so that it might appoint someone to write his Memorial. Other bar associations and groups of which Field had been a member were planning papers on his achievements or some other sort of notice of his death. The executive committee, however, decided against any Memorial for Field, and the Association took no notice of his death in any way.

Chapter 11 IN FEBRUARY 1895 the Association celebrated its twenty-fifth anniversary with a reception and dinner at its house on 29th Street. The occasion was a happy one, for there was much in the Association's past that was genuinely glorious, and many of the men who had signed the call for organization were still alive and present. Happily, too, all the glory was not in the earliest years. In 1893 the Association had succeeded in defeating the election of a judge on the Court of Appeals whom it considered a discredit to the bench. In 1894 a number of its members had been delegates to the state's fifth constitutional convention, which had revised the judicial system of the state. Further, two members had filled important roles at the convention - Choate as its president and Root as the acting chairman of the rules committee, the post which, more than any other, had controlled the convention. The judge who had raised the ire of the Association was Isaac H. Maynard. He had been given an interim appointment to the court by Governor Roswell P. Flower and in the fall of 1893 had run for a regular fourteen-year term on the Democratic ticket. The objection to him was that in the election of 1891, when he was a deputy attorney general of the state, Maynard had acted to ensure the election of a Democratic state senator from Dutchess County by removing- "stealing," said some - a corrected election return from the office of the state board of canvassars in Albany. Soon after his interim appointment, a committee of the Association reported to the members that Maynard had "disclosed a clear unfitness for high judicial station" and that his removal of

Judge Mayrwrd defeated

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the election return had "already impaired and must continue to impair the confidence of the public in him as a judge." 1 The Association adopted the committee's report and by a memorial urged the legislature to remove Judge Maynard from the bench. But in the spring of 1892 the legislature was controlled by the Democrats and a majority of the joint committee of the Senate and Assembly that was assigned to investigate the charges against Maynard exonerated him. The Association was forced to wait until the election the following year to take its case to the people. This it did by organizing a statewide campaign against the judge which culminated in an open meeting on October 26 in the great hall of Cooper Union. The speakers were Carter, Peckham, Theodore Bacon, Seth Low, F. R. Coudert and E. Ellery Anderson, and they spoke for a committee of 222 of the best-known men of the city. When the vote was counted, Maynard had lost to Edward T. Bartlett by 478,158 to 579,222. It was an overwhelming defeat, and one for which the Association and other bar groups in the state were responsible. The Association's part in the 1894 constitutional convention, on the other hand, was only through members acting as individuals. Nevertheless, it was given some credit by the public for a hand in the revision of the state's judicial system, because the public identified both Choate and Root, who together dominated the convention, with the Association. Certainly its members considered that through the two men the Association was well represented in the deliberations. The chief issue before the convention was the apportionment of seats in the legislature. As set up by the convention of 1846, the constitution favored the Republicans by giving an unequal proportion of seats to the rural districts. Root, himself a Republican and backed by a Republican majority among the delegates, handled the issue in a wholly partisan manner. No compromise was allowed. Indeed, Republican domination of the legislature was assured by a stipulation in the new constitution that regardless of

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Causes and Conflicts

what the census might show in 1905, not more than one-third of the senators could come from New York City and not more than one-half from New York and Brooklyn, which in 1894 was still a separate city. In the judicial reforms, however, Root kept partisan politics at a minimum, and the reorganization of the state's judicial structure, in which he personally had a large hand, was considered by many to be the best work the convention did. The purpose of reorganization was to provide faster and more uniform administration of justice, and out of it came the basic system which exists today. As it then was, the system could hardly have been worse. The lowest courts, especially in the larger cities, often had concurrent or even conflicting jurisdiction, and over them was the Supreme Court with a "General Term" for certain appellate cases. But what many considered to be the worst feature was a practically unrestricted right of appeal to the Court of Appeals, so that Supreme Court decisions were almost never final. The Court of Appeals, as a result, was years behind in its calendar and falling further behind each year. The new system which the convention now proposed planned to relieve the pressure on the Court of Appeals by limiting its jurisdiction to questions of law, except in cases calling for the death penalty. The General Terms of the Supreme Court were to be abolished, and an intermediate appellate court, to be called the Appellate Division of the Supreme Court, was to be created with power of final decision in many cases. The state was to be divided into four judicial departments with an Appellate Division in each department. Also, some of the lower courts were to be absorbed by the Supreme Court, and in order to provide for its increased business, twelve new judges were to be added to its bench. • Despite the opposition of a number of judges and some of the bar, the people approved the new constitution at the polls in No" The convention also eliminated the provisions of the constitution of 1846 relating to the codification of laws, thus finally laying to rest the controversy over the proposed civil code.

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vember 18g4, and the new judicial system went into effect on the following New Year's Day. Therefore when the Association celebrated its twenty-fifth anniversary on February 15, 18g5, the latest reform for which its members felt at least partially responsible was scarcely eight weeks old. And although the members naturally used the anniversary as an occasion to look back, no one had any sense of a golden age having passed. Rather, it seemed to lie in the future. Not only was the Association still active; it was still growing. Its members now numbered 1,297, and at a meeting on December 11, 1894, they had approved the purchase of a site running between 43rd and 44th Streets and the erection of a large new building- the present house of the Association- which would be constructed entirely to suit their needs. The twentyfifth anniversary party, therefore, was both a celebration of glorious days and a farewell to old, cramped quarters. The reception, besides commemorating the founding of the Association, also honored its former presidents, of whom there were eight: William M. Evarts, 187o-1879

Stephen P. Nash, 188o-1881 Francis N. Bangs, 188z-1883 James C. Carter, 1884-1885 William Allen Butler, 1886-1887 Joseph H. Choate, 1888-188g Frederic R. Coudert, 18go-1891

Wheeler H. Peckham, 18gz-1894 Of these only Francis N. Bangs had died, and of the others all were present except Choate, who was kept away by a daughter's illness. Joseph Larocque, the current president, acted as host. The chief celebrity, naturally, was Evarts. Fate had not been kind to him in his old age. After serving as Secretary of State for Hayes, he had been elected United States senator from New York in 1884, and had served the full six years although he was aware

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for the last two that he was losing his sight. By 18gz, when he was only seventy-four, he was almost blind. In that year, at the urging of James C. Carter, who as chairman of the Republican national committee was backing Harrison against Cleveland, he gave his last political speech. It was not a success. He made a great effort and spoke for nearly an hour, but his voice did not carry beyond the first twelve rows. Evarts was not a man for blindness. He was not a philosopher to ruminate on ideas, nor had he an ear for music or even, at any length, for the conversation of others. His joys all sprang from active interests, and though his mind and limbs continued sound, his blindness imprisoned him within himself. He did not die until 1901, and his last years as a recluse in his home, on the northwest corner of 14th Street and Second Avenue, were hard. His helplessness preyed on his mind, and he grew increasingly irritable. When death finally came, his body fought it, but his mind welcomed it. As far as can be determined, his last public appearance was at the Association's party. He came in the clothes that were most natural to him, cut in the style of the 186o's with an old-fashioned, rumpled dress shirt and stick As a newspaper expressed it the next day, it seemed as if Lincoln or Seward might walk into the room. The reception was held in the library, and he stood in line with the other past presidents and personally greeted each of the five hundred guests. After Nash and Carter had made a few remarks, he was asked to speak, and he stepped forward to the center of the long room, where a space had been left open. He stood erect, and though some people at the rear could not hear him, he spoke with vigor for nearly three-quarters of an hour. "The two hundred lawyers," he said, "who signed the first call for the meeting . . . should be regarded with veneration as the founders of this great society. Lawyers have ever been the men who have made the revolutions in this country. . . . At the time of the formation of this Association I had observed the course of

The House at 42 West 44th Street

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affairs, and I felt that the alternative was either to be gloriously successful or gloriously beaten in our opposition to a great evil. We realized the importance of organization. But it was a question whether we should bow our heads to the petty tyrants on a corrupt bench, and the Association took up the gage of battle and won the victory." 2 Just eighteen months later, on October 8, 18g6, the Association opened its new house at 42 West 44th Street with another reception. This time, however, there were no speeches; the celebrity was the building itself, and the guests, numbering several thousand, were invited to wander through it. It was - and is- an extraordinary building. The architect, Cyrus L. W. Eidlitz, was faced with the necessity of providing three enormous rooms for the members: a meeting hall capable of seating the current membership of 1,500; a reception hall, adjoining the meeting hall, if possible, capable of absorbing the same number standing; and a library of so,ooo books, which was increasing at a rate of 3,ooo a year and which would be in constant use. These requirements, to a great extent, determined the building's design. 0 Because of the narrow shape of the lot the three rooms could not be side by side at ground level; at least two had to be on higher floors. To support the weight of the books and of the people, unusually heavy interior beams were needed in both the ceilings and walls, and unless they were to be concealed completely, they would influence the scale of the rooms. The doors entering these rooms would look better if they were double and tall, the windows if they were relatively large. But this, for another reason, was just what was required. The doors to both the meeting and the reception halls needed to be wide and any stairs massive, in order to accommodate 1,500 persons in a body. As a 0 Across the street from the Association is the Harvard Club, whose architect also had to provide two large rooms capable of accommodating 1,500 persons. The library there, however, was less of a problem, and the plot had a slightly easier shape.

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result, much of what may strike a visitor at first glance as heavy, such as the double row of marble pillars in the entrance hall, soon shows a structural purpose. The building, perhaps, is not beautiful; but it is handsome and in its scale, imposing. Over the last seventy years it has proved to be extremely well designed for its purpose. 0 The members paid $203,500 for the land, $380,700 for the building and $55,750 for the furnishings. It stood nearly six stories high, the tallest structure in the center of its block, and at its opening, when the outside stone was clean, the inside marble newly polished, the paneling freshly waxed and all the rooms filled with flowers, the building by all accounts was stunning. A reporter for The American Lawyer, enthusing over everything he saw, even noticed the rug in the meeting hall, "a plain though bright red carpet," which he insisted gave "a pleasing effect." Another for The Green Bag, in a rather giddy account of the opening reception, described the building as "a marble palace." 3 On October 13 the members held their first meeting in the house, and the building committee, consisting of S. Sydney Smith, John McLean Nash and Edward W. Sheldon, turned over the keys to the president. The relief of the committee at being finished with the job was reported to be "as great as though the building itself had been removed from their shoulders." The house, in the Association's resolution of thanks to the men, was described as "an ample, becoming and beautiful home." Even the youngest members, on looking about them, must have sensed that not again in their lifetime, if ever, would the Association move. During these years the city passed through another spasm of reform in which, at the start, the Association was not involved. The boss at Tammany Hall in this decade was Richard Croker, a former fist fighter who had risen to power and riches through his position as head of the "Fourth Avenue Tunnel Gang." Later he had become superintendent of market fees and coroner, and for • In 196o the New York Community Trust proclaimed it a "landmark" of the city.

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years no one on Manhattan could rent a pushcart, or die, without paying a fee to Boss Croker. His first opponent demanding reform was the Reverend Charles H. Parkhurst of the Madison Square Presbyterian Church. Led by a private detective, he toured the city's dens of vice in disguise, played leapfrog in one house with the madam's girls, and saw things for which even the Bible hardly had prepared him. Again and again from his pulpit he told his congregation, which rapidly began to expand, that New York was a commercial Sodom in which vice was protected, for pay, by the police. In 1894 a legislative committee, led by state Senator Clarence Lexow, came down from Albany to investigate Dr. Parkhurst's charges, and the testimony taken showed that most of them were true. 4 A new Committee of Seventy was formed which included several members of the Association, of whom the most important was Root. For mayor in the election of 1895 it put up William L. Strong, who was a reputable though not particularly outstanding businessman. Nevertheless, as a reform candidate he was supported by the Republicans, the State Democracy party, the Independent County Democrats, the Anti-Tammany Democrats, the City Club and a new reform group organized under the name of the Good Government Clubs. With this backing Strong was elected, and as one of his four police commissioners he appointed Theodore Roosevelt, who was recommended by Root. Roosevelt was soon made president of the police board, and because of his attempts to reform the police department, became the most important public figure in Strong's administration. Meanwhile Root, together with Carter, set about to create a permanent citizens' group which could campaign actively and continuously for good government. Dr. Parkhurst had proposed the idea in March 1896, and the City Club, of which Carter was a member and former president, had taken it up. Carter suggested a preliminary meeting of a few selected men, and as he himseH was unable to attend, the meeting was held in Root's office.

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Among those present were former Mayor Abram S. Hewitt, businessmen Jacob H. Schiff and George M. Cassatt, and three members of the Association- Joseph Larocque, its president, Charles S. Fairchild, who had served as Secretary of the Treasury under Cleveland, and Austen G. Fox, who had acted as special district attorney in the prosecution of corrupt police officials. The second meeting, which many more attended, was held on December 19, 18g6, in the Association's new building. From these two meetings and others which followed them there emerged an organization with a name suggested by Root: the Citizens Union, which is still active today. On Washington's Birthday the following year, the new group issued its first public appeal, over the signatures of 165 leading citizens of both parties. In a Declaration of Principles and Objects it followed closely a draft prepared by Root which, in some of its ideas for city government, was reminiscent of the recommendations put by Evarts, Carter and others into their report for Tilden on the government of cities (see p. 122). The Citizens Union, for example, urged such programs as nonpartisan government of the city, enforcement and extension of civil service rules, and complete separation of city from state and national elections. The first campaign in which the group had a chance to play a role was the city elections of 1897. These were unusually important, both because the main issue was whether a reform government would be voted in again and because they were the first to take place after the Consolidation Act of May 5, 18g7, which created the city of Greater New York. Whoever won the election would be mayor not only of old New York (the island of Manhattan) but also of Brooklyn ( Kings County) and of all the towns in the counties of Queens, Richmond (Staten Island) and the Bronx. Moreover, he would take office under a new charter adopted in the same act. On the whole, Strong's administration had disappointed thereformers. He himself, though honest, had not shown much apti-

Boss Croker dumps an honest fudge

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tude for government, and Roosevelt soon had lost interest in the problems of the police. In April1897 he had resigned to become Assistant Secretary of the Navy in McKinley's administration, and therefore, though he had been the obvious choice, was not available to run for mayor. In his place the Citizens Union chose Seth Low, who was then president of Columbia University and twice had been mayor of Brooklyn. He was an excellent candidate, but the reformers were unable to keep their political base together. The regular Republicans, led by Thomas C. Platt, saw more danger in continued reform than in defeat. In effect joining forces with Tammany, they insisted on putting up their own candidate, General Benjamin F. Tracy. Had the votes for Tracy, who ran third, been cast for Low, Low would have been elected by a large majority. As it was, Tammany's man won. Boss Croker had come back from Europe to manage the campaign personally, and before the election his men had marched through the streets with banners labeled "To Hell with Reform." On election night, when the extent of Tammany's victory became clear, the red-light districts celebrated the end of police reform. For Croker, however, the victory was merely one battle in his campaign against reform. The next, which directly involved the Association, arose in the state elections of 1898 in which Roosevelt was elected governor. In nominating men for the various judgeships that were open, Croker refused to renominate Judge Joseph F. Daly for the Supreme Court because, as both Croker and Daly later testified, Daly would not make court appointments as Croker ordered. Croker's action was directly opposed to the Association's stated belief that any judge who had served well on the bench should be renominated, and the Association, with Root as chairman of its committee on judicial nominations, leapt to defend Daly. 5 Resolutions were passed, a "Committee of Fifty" was appointed and, most important, Root arranged conferences with the officers of the Democratic, Republican, Socialistic and Prohibition parties and

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of the Citizens Union. The Democrats still refused to nominate Daly, but the others backed him to run on an independent ticket. Meanwhile a committee of lawyers, many of whom were not members of the Association, circulated a petition protesting Croker's action. More than 3,ooo lawyers signed it, and he replied by deploring the condition of the bar in the city and suggesting that the time had come to form a worthwhile bar association. To which Choate replied in a public letter, "I cordially approve of Mr. Croker's proposition for the formation of a new Bar Association, which shall be all his own. Then all who want lawyers who know the law will know where to go, and those who are in search of advocates who know the Judge will be equally well provided." 6 The climax of the campaign came on October 21 in a mass meeting, arranged by the Committee of Fifty, in Carnegie Hall. Reportedly J,ooo attended. Former Mayor Abram S. Hewitt made the opening speech: The most precious possession of a free people is an honest and fearless Judiciary. The immortal declaration in Magna Charta, "that justice shall not be sold," is the very foundation of our rights and liberties. The President or Governor cannot attempt to control the courts without becoming liable to impeachment. What Presidents and Governors cannot do, a private citizen, holding no commission from the people, and responsible to no constituted authority, arrogates to himself, and claims the right to impose his will upon the Judges whom he has created. He is not only Judgemaker, but Judge-executioner. He thus becomes the foundation of Judicial life and death. This preposterous claim, which can only spring from the abnormal combination of intellectual aberration with colossal self-conceit, is a challenge to the community not to be disregarded without the loss of its self-respect and of its freedom. 7

Nevertheless, Croker had his way. On election day he delivered a majority of the votes to his candidate and retired Daly into private life.

Revelations of the Mazet Committee

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The following spring even more light was thrown on Croker's power over judges by a special committee of the state Assembly "to investigate the public offices and departments of the City of New York and the counties therein included." More generally it was known as the Mazet Committee from its chairman Robert Mazet, a lawyer and Republican from New York. In response to resolutions of the City Club, the Chamber of Commerce and the Association, this committee devoted considerable attention to the problems of judges. It revealed- for none of the witnesses attempted to hide the fact- that the judges who were nominated by Croker, with only a few exceptions, bought their nominations. The price varied from $10,ooo to $25,ooo; in some instances it was set at half a year's salary. In addition most references, particularly the appointment of referees, had to be made as Croker ordered. The testimony taken was voluminous. One part, which the committee's counsel quoted in its report, starts with Croker corroborating a judge's testimony that Croker charged him $10,000 for a nomination to a vacant half term in the Supreme Court: I told him there were 1300 districts in the City of New York . . . and I thought that the Finance Committee [of Tammany Hall] at that time would exact about $10,000 as a contribution, and he said he was perfectly willing that it should be paid toward the election. Croker explained that the conversation had taken place in Tammany Hall, where the judge had gone to arrange the matter. Then the testimony went as follows:

Q. (6o1). Other Judges have done the same thing, haven't they? A. They have done it, yes, sir. Q. You don't mean to say that you made a special thing against Judge Pryor in that matter? A. No, not at all. Q. It was a common thing for judicial candidates to pay in money that way? A. Yes, sir; they ought to pay a part of their expenses.... Q. It was a common thing for them to come to Tammany Hall at the proper time and arrange the details? A. I

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should think so. I could not recollect where they would go. They may go to different places- wherever it was convenient. They might see the people who were in their districts, the leaders. Q. But it was for the purpose of getting into line with the organization and contributing to the organization expenses, was it not? A. Yes, sir; helping the organization out. Q. You heard Judge Pryor testify that his check was drawn to your order; did you see the check drawn to your order? A. I don't recollect that; probably it was. Q. And it was taken back to him with the suggestion that it had better be drawn to bearer- why was that? A. I didn't want any checks drawn to my order of that sort. Q. Were these assessments that were paid by the judge and by other candidates entered into any account books? A. No. Q. No account kept of them? A. No. 8 The testimony on every other branch of the city's government was much the same. In the department of public buildings a carpenter who had stood highest in his class in the civil service test had been dismissed for "lack of work," but his place had been filled immediately by the father-in-law of the Democratic district leader. The conclusion of the committee's counsel was that the city's government had the form of .. an absolute monarchy." Croker, though he held no elective office, was the king, and "close to the ruler, blind obedience is the rule." 9 The typical American forms of government seemed once again to have failed in the government of a large city. Yet nothing was done about it, and perhaps nothing could be done. There was no ground swell among the public for reform. A majority of the lawyers were disturbed by Daly's fate, but curiously, many of his fellow judges were not. They apparently did not fear that the tribute in money and appointments to Croker might influence their administration of justice. Or perhaps they did not care. Some of them seem genuinely to have considered themselves servants of the king rather than of the people. 10 Perhaps the corruption under Croker was less alarming than under

Croker retires to Ireland

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Tweed thirty years before. But in any event, plainly the reformers, including the Association, had accomplished less in their efforts to improve it. Boss Tweed, at least, had died in jail. Boss Croker, in a few years, retired to Ireland with his millions and raised race horses.

Chapter 12 THE AssociATION's INABILITY to defeat Croker or even to interfere in any serious way with his activities was one of the first signs of a general ineffectiveness that now seemed to overtake it, at least in the area of government. In the next twenty years, roughly from 1897 to 1917, when the war began to drain all men's energies into other pursuits, the Association not only did not score any notable victories in the areas where the profession touched on government, but scarcely even attempted the battles. Instead, it concentrated its attention on its library, on the development of its grievance committee, and on the reports of various committees concerning proposed legislation. These were all legitimate, even noble pursuits; and all were well, even brilliantly pursued. 0 Nevertheless, throughout most of its past the Association had attempted to do more, and the contraction of purpose in these years was marked enough to be noticed by contemporaries. Moreover, even in the areas that did continue to interest the Association- such as the use of the building and of the library, and the fellowship of the members - there were signs that not all the members were pleased with what was happening. When the New York County Lawyers' Association was founded in 1go8, more than half of its founding directors and many of its members were also members of the older Association. Though the leaders of the new association protested publicly on several occasions that it was not founded because of disappointment in the old, many 0 See Chapters 19 and 20, pp. 319 and 351, in which the development of the library and of the grievance committee are recounted in detail.

The increasing age of the leaders

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people were not convinced. If the older Association had been satisfactory, why was it necessary to found a new one? A clue to the answer and also to the increasing ineffectiveness of the Association in public matters may lie in the fact that during this period the average age of the Association's members, particularly of its leaders, was increasing. As Table 1, page 391, indicates, beginning with the election of James C. Carter as president in 1897, five out of six presidents in the period through 1909 took office in their seventies. By contrast, in the first quarter century of the Association's history, the oldest president on taking office had been only sixty-four, and seven of the nine in the period had been under sixty. Though some men, doubtless, are more vital at seventy than others at fifty-five, on the average they are not, and nothing these particular five men undertook as presidents proved them exceptions to the general mle. All five of them had signed the Association's call for organization, had served on manv of its committees, and were considered by lawyers everywhere to be leaders of the bar. Two of them, Carter and Edmund Wetmore, had ah·eady been president of the American Bar Association. In addition, Carter had served as the Association's president once before, in the years 1884 and 1885. Now twelve years later he accepted the office again, a thing which no previous president had done and which none since has repeated. Even more, though the presidents usually held office for two terms of one year each, Carter, despite being the oldest president in the Association's history by eight years, accepted reelection twice, so that he held the office for three years. There was no crisis in the Association's affairs at the time to justify such a break in tradition. The best explanation of it seems to lie in a mixture of Carter's vanity (although this was not unusually large for a man of his success) and the desire of his contemporaries to honor him. He was probably the most famous lawyer of the 189o's. In 1888, after his defeat of Field and the proposed civil code, only his uncertain health had kept President Grover .!

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Cleveland from appointing him Chief Justice of the United States Supreme Court, and since then he had argued many cases of national interest, among them the first income tax case, the Tilden Will case and the Behring Sea Arbitration. Unfortunately for the Association, however, the leadership of Carter and his contemporaries drained vitality from it rather than injecting more into it. Not only the age but the personality and even the politics of the men contributed to this effect, and Carter, as the dominant member of the group who also served the longest term, struck the tone which the others, with only slight variations in quality, continued to echo. He had started life as a poor boy in the village of Lancaster, Massachusetts, and by hard work and the aid of a friend he had achieved a Harvard College education, though at an older age than most students. But before going on to Harvard Law School, which then offered a course of three terms, he had been forced to stop for a year to earn the tuition, which he did by teaching. Consequently he did not arrive in New York to practice law until 1854, when he was twenty-seven. He had no connections in the city, and he made his mark at the bar slowly. He had a great capacity for work, however, and as he never married, he was able to pursue his practice with relentless devotion.'* All this work and solid worth were combined with an austere, earnest and even lonely personality, very like that of Charles O'Conor, with whom Carter in his early years was often associated. The two men liked each other, and Carter consciously modeled his style and methods of work on those of the older man. The result in his own age was a personality that struck many, particularly among the younger men, as rigid and cold. Henry W. Taft, for example, in describing Carter in Legal Miscellanies, states forthrightly what others 1 hint at: 0 In 1854, with Henry J. Scudder, Carter formed the firm of Scudder & Carter. In 1886 the firm became Carter and Ledyard; in 1888, Carter, Rollins and Ledyard; in 1889, again Carter and Ledyard; and finally, in 1904, as it is today, Carter, Ledyard and Milburn.

]ames C. Carter

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It cannot be said that Mr. Carter was a popular member of the bar. His social connections were warm but few. He was a kindly man, but his austerity with those he little knew, or with those separated by a disparity of age, was sometimes disconcerting, but with a group of his contemporaries who had been associated with him, particularly at the Harvard Law School, he enjoyed a cordial friendship. 2

To all but a few, therefore, Carter's personality was just the reverse of the sort the founders of the Association had preferred in a president when they selected Evarts rather than O'Conor to lead them. Nor did Carter's successor, John E. Parsons, bring any greater warmth to the post. Parsons is described in his Memorial by Joseph Hodges Choate as "somewhat lacking in imagination and absolutely without a sense of humor"; further "there was a certain rigid formality in his manner and bearing, a coldness of composition which kept people at a distance." 3 Humor and warmth are not always necessary for leadership, but they are generally considered helpful. A succession of leaders without these qualities, particularly in a voluntary, membership organization like the Association, tends to discourage not only new ideas but activity of any sort. Besides age and a cold personality, Carter shared with most of his contemporaries among the leaders of the Association an active interest in the Republican party. This sprang, typically, from a New England background. As Taft observed, Carter's most congenial friends were men who had been with him at Harvard, in college or law school. Perhaps chief among them were the Choate brothers, Joseph Hodges and William. Joseph, the younger by seventeen months, ah·eady had been president of the Association in 1888 and 1889, soon after Carter's first time in the office; William was to be president in 1902 and 1903, following the successor of Carter's last term, John E. Parsons. The Choates came from Salem, Massachusetts. Like Carter, they had joined the Republican party in its early years before the

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Causes and Conflicts

Civil War and had continued staunchly loyal to it. For a time Carter served as chairman of its national committee, and Joseph Hodges Choate, a brilliant speaker, frequently spoke for its candidates. Carter's reward, denied him by the threat of ill health, would have been the appointment in 1888 to the United States Supreme Court; Choate's reward, which he thoroughly enjoyed, was the appointment to serve from 18gg to 1905 as United States Ambassador to Britain. Others among the Association's leaders at this time were less distinguished politically, but almost all were Republicans. They represented to the world a uniformity of political thought which was something new in the Association's history. In the days of the struggle against Boss Tweed, Evarts, the Republican, had been balanced and aided by Tilden, the Democrat. In the struggle against Boss Croker there was no one within the Association who corresponded to Tilden. Nor was there likely to be. In the decade of the 18go's, partly because of Carter and such men as Elihu Root, the arena for cooperation between Republicans and Democrats anxious for reform had shifted from the Association to other groups. Carter, for example, had been active in the Good Government Clubs, president of the City Club and, together with Root, a founder of the Citizens Union. In 1870 such groups had not existed. It can be argued that this shift was a good idea, that the City Club and Citizens Union were more appropriate forums than the Association from which to launch attacks on municipal corruption. But however that argument may be concluded, one effect of the shift was to leave the Association to one side while the campaigns for reform were fought elsewhere. A paradox of the shift was that the Association, though in its own eyes it was removing itself from politics, in the eyes of the world was becoming more politically partisan. For now only a single political point of view was ever expressed actively by its leaders. Further, as all lawyers, at least, were aware, the admissions policy of the Association was

Choate's St. Patrick's Day speech

177

selective, and most men assumed that this meant any lawyer uncongenial to the social and political tone of the Association's leaders would not be elected. An example of how this idea got about occurred on St. Patrick's Day, 1893, when Joseph Hodges Choate spoke at a dinner in Delmonico's to the Friendly Sons of St. Patrick. Choate, a trial lawyer and a favorite with juries for his wit and ease, was by far the most famous after-dinner speaker of his generation. His style was unusual, for he never relied on stories or jokes but always created something fresh and seemingly impromptu out of the situation at hand. But it was also perilous, for he liked to be sarcastic about his host or audience. This worked well if the audience shared his prejudices, like the alumni of Harvard or the members of the New England Society. On occasion, however, it could lead him into trouble. Before the Friendly Sons of St. Patrick he began with graceful compliments and then started to review the role of IrishAmericans in the city's history, later combining this theme with the hopes of most of his audience that Britain soon would grant home rule to Ireland. A reporter for the Sun was present and took down some of Choate's remarks, adding his own observations on how they were received. Halfway through his speech Choate was saying: For what offices, great or small, have the Irishmen not taken? What spoils have they not carried away? From Mayor Gilroy- I am glad to hear your applause. I am the only man here tonight, I doubt not, who didn't vote for Mayor Gilroy. I voted for the other man. I've forgotten who he was. But it is no matter who it was. No man could stand against Thomas F. Gilroy and his seventy-five thousand majority. But, gentlemen, now that you have done so much for America, now that you have made it all your own, what do you propose to do for Ireland? How long do you propose to let her be the political football of England? Poor, downtrodden, oppressed Ireland! Hereditary bondsmen, know you not who would be free themselves must strike the blow?

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(At this there was laughter and several cries of "We can't" and "There isn't any way to do it." Mr. Choate went on ... ) You have learned how to govern by making all the soil of all other countries your own. Have you not learned how to govern at home; how to make Ireland a land of home rule? (There was a confused murmur in the room, some laughter, some excited gesticulation, a few angry looks, several cries of 'That's too strong. Choate is carrying his sarcasm too far.' Mr. Choate went on with a sarcastic smile of good humor on his face . . . ) There is a cure for Ireland's woes and feebleness today. It is a strong measure that I advocate. But I am here tonight to plead for Ireland with the retaining fee in my possession, and I propose to plead. I propose that you should all, with your wives and your children, and your childrens' children, with the spoils you have taken from America in your hands, set your faces homeward, land there, and strike the blow. (At this there was some laughter, the representatives of the other societies doing most of it, there were many angry looks, several cries of "No! No!" and two or three hisses, half suppressed. Mr. Choate, still smiling and sarcastic, went on . . . ) Gentlemen, the G.O.M. needs you. He is clamoring for you. And the G.O.P., to which I belong, has been so severely disciplined that it can get along without you. Think what it would mean for both countries if all the Irishmen of America, from Atlantic to Pacific, should shoulder their muskets and march to the relief of their native land! Then, indeed, would Ireland be for Irishmen and America for Americans! (There was some applause, but scarcely any laughter. The banqueters were receiving Mr. Choate's good-humored sarcasms silently and were waiting anxiously to see just how far he would go. Mr. Choate went on . . . ) As you landed the G.O.M. would come down to receive you with paeans of assured victory. As you departed the Republicans would go down to see you off and to bid you a joyful farewell. Think of the song you could raise. ''We are coming, Father Gladstone, fifteen millions strong!" How the British lion would hide his dimin-

Stagnation threatens

179

ished head! For such an array would not only rule Ireland, but all other sections of the British empire. What could stand before you? It would be a terrible blow to us. It would take us a great while to recover. Feebly, imperfectly, we should look about us and learn for the first time in seventy-five years how to govern New York without you. But there would be a bond of brotherhood between the two nations. Up from the whole soil of Ireland, up from the whole soil of America, would arise one paean -"Erin go bragh"! 4 At the dinner, where Choate's smile could aid him, he managed to reach the end in safety. But the next day when the remarks were read in cold print, they were judged by many, and not just by the Irish, to be offensive. There was an immediate outcry, and for weeks the speech was discussed in the papers. Choate meanwhile went about his business unperturbed; indeed, some entries in his notebook at this time reveal that he was not only unrepentant but uncomprehending as to what the furor was all about. 5 To others, however, it was clear: he had chosen to forget that Charles O'Conor, who had done more, perhaps, than any other lawyer to put Boss Tweed in jail, had been the son of an Irish immigrant; that Tweed himself had been neither Irish nor Catholic; that Fisk had come from Vermont and Barnard had been educated at Yale. To most men, on consideration, the sting of his words suggested not the persiflage of an evening but the prejudice of a lifetime. Unfortunately for the Association, this was the impression its leaders too often gave. They genuinely loved Harvard and Yale, and many of them loved the Protestant church. But these were not the only paths to virtue, and the constant implication that they were irritated many and kept them away from the Association. Ultimately the price of such exclusivity is stagnation, and by the fourth decade of its existence the Association was threatened with it. One ineffectual protest was raised by some of the younger members in December 1900 as John E. Parsons was about to go

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out of office. They proposed a slate of their own for the nominating committee, stating openly, but with good humor, that it was time for the younger members to have more voice in Association affairs. It was the first time in the Association's history that there had been a contest over the nominating committee. But the younger men lost by a vote of 231 to 149, and Parson's successor was William G. Choate who, taking office at seventy-two, is still the oldest president in the Association's history. The man who might have been the antidote to this threat of stagnation was Elihu Root, who succeeded Choate in 1904- At fifty-nine he was the only younger man to serve as president in this period. Further, he had not been to Harvard College but to Hamilton, at Clinton, New York, where his father and later his brother were professors of science; and he had graduated from law school not at Harvard but at New York University. His experience of men and of other parts of the country was more varied than that of the Choates or Carter, for they hardly ever left the city except to go to Washington, New England or Europe. Root, on the other hand, made frequent trips to the West to look after his clients' interests and to hunt in the Rockies. When Choate went to the Chicago Fair in 18g3, he wrote back to his wife in surprise, "It seems strange to come a thousand miles from home and find the same kind of people, dressed in the same way and doing exactly the same things as those we left at home." 6 For Choate, London was far less strange than Chicago; he, Carter and the rest of their circle seem to have had little sense of the country west of the Hudson. When in 1899, Root was offered the post of Secretary of War by President William McKinley, but Choate and Carter advised him to remain in New York practicing law-advice which probably neither Tilden nor Evarts would have given. When Root, after hesitating, finally decided to accept the appointment, he reported to W. H. Taft that Choate and Carter "were both very much disgusted." 7 Later he told his former law partner, Bronson

Elihu Root

181

Winthrop, that his law practice seemed futile in contrast to the sense of accomplishment which he had from his work in the War Department. 8 Probably most historians would regard his reorganization of the United States army, after its bumbling performance in the Spanish-American War, as one of the crucial achievements for the country in the first quarter of the twentieth century. Root's extraordinary qualities were not limited to the law and to administration. He had a love of science, inherited from his family, which kept him abreast of technological advances; he had a love of nature, which led him to learn most of what there was to know about the care of trees and bushes; and he had a strong love of beauty. At the Chicago Fair Choate found little to stimulate him, but Root found a great deal, particularly in the architecture of Charles F. McKim, who was largely responsible for the Fair's famous White City on the shores of Lake Michigan. In part because of Root, McKim later was commissioned to remodel the White House in Washington in the simplicity of its original design and to build the Army War College. At the turn of the century Root was, without question, the most dynamic, interesting and cultivated lawyer in New York and perhaps even in the country. As president of the Association from 1904 to 1906, after the seven years under Carter, Parsons and William G. Choate, he should have been the man to revitalize the organization and reawake its members to a larger sense of purpose. But unfortunately for the Association, he did not even attempt it. For one reason, just because he was so much in Washingtonas Secretary of War under McKinley ( 1899 to early 1904), as Secretary of State under Theodore Roosevelt (late 1905 to 1909) and finally United States senator from New York ( 1909 to 1915)- he had very little time for the Association, though he cared for it always. But even in the short period that he was president, and in his influence that was spread more generally over the years, he reinforced the bad qualities of the elderly men rather than tempering them.

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Root, like Carter and Parsons, had a cold, unresponsive manner. It was natural to all his family and was recognized by them as a defect. Root, in talking of it once, described how as a child he had missed his piece of pie because he had been too proud, too reticent, to say, even to his grandmother, the simple words of desire. When he was grown, his image of himseH was as a Roman in the days of the Republic, proud, reserved, incolTuptible and stoic. He even cut his hair in the Roman style, with a short bang across the brow. Many of his contemporaries, put off by his coldness and perhaps irritated by his competence, found him arrogant. Like Carter, he was not a popular leader. 9 Yet to Root's coldness was added, curiously, a passionate partisanship in politics, which ultimately was one of the forces that set a limitation on his career. Because he was so convinced, for example, that William Jennings Bryan was "thoroughly dishonest,': he failed to see that many Middle Westerners, Republicans as well as Democrats, had legitimate grievances against the Eastern Republicans who were running the country - grievances over such things as the tariffs and unequal raih·oad rates. As a result, in 1916 Charles Evans Hughes rather than Root won the Republican nomination for President. Root's biographer, Philip C. Jessup, in searching for an explanation of this streak of almost violent passion in Root, concluded: That intenseness of party feeling, that religious fervor of the party man, is something which is becoming less common in recent generations. Root had it, as did Hay and Taft and Roosevelt and the great number of their friends. The conservative Republican's outcry against "new deals" far antedates the administration of Franklin D. Roosevelt. The parallel is very close between the arguments and outcries of 1937 and those against Bryan in 1900, " The charge of "coldness" is made against so many lawyers, particularly good ones, that the failing, if it is that, seems to be either a result of their professional skill, or a prerequisite for great success at the law. Root considered the problem and concluded that, on the whole, lawyers are apt to be legalistic, conservative and poor reformers or legislators. See Philip C. Jessup, Elihu Root (New York, Dodd, Mead, 1938), Vol. 1, p. 208; Vol. 2, pp. 206,242.

New York County Lawyers' Association

183

against Wilson in 1915 and- in an instance where Root labored valiantly on the other side of the fence- against Theodore Roosevelt in 1904- In Root's case, politics must have offered something of a safety valve to emotions which were kept under iron control but which frequently bubbled through to the surface. The urge to expression had been satisfied in the early post-college days by an apostolic religious fervor. With the passage of that phase, Republicanism took its place and did not abate until the philosophical detachment born of the passage of some eighty-five years had settled about him in calm serenity. 0

Root was followed as president of the Association by two more of the old men, John L. Cadwalader, 1go6-1go8, and Edmund Wetmore, 1908-1910, both of whom had signed the call for organization in 186g. During their terms the New York County Lawyers' Association was organized and held its first meeting in May 1908. Of its thirty officers and directors, seventeen, including the president and two of the three vice-presidents, were members of the older Association. There is no evidence in the Association's records that these men had attempted a revolution within it and had failed. On the contrary, from the start they seem to have been happy to have the Association continue as it was, and in their politics most of them were just as conservative and Republican as Carter, Choate or Root. But they were eager to create something different, and the difference which they stressed from the start concerned their policy of admission to membership. There was to be no committee on admissions at all. Any lawyer residing or practicing in New York County could become a member "upon proof that he has been duly admitted to the bar of the Supreme Court." "Jessup, Elihu Root, Vol. 1, p. 236. In World War I, when Root was over seventy, he took up' the Allied cause with a similar religious fervor. He believed every word of Lord Bryce's dishonest report on German atrocities, and in a public address in Carnegie Hall he insisted that "It is a war between Odin and Christ." A week after the armistice, from the pulpit in the Cathedral of St. John the Divine, he announced, "God himself was on our side." Jessup does not exaggerate in stating that not until Root was nearly eighty-five did this streak of violent passion in his nature subside.

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Causes and Conflicts

As the new association's first president, John F. Dillon, remarked on May 21, 1go8, in his first address to the members: The legal profession and the public will naturally inquire, and rightfully, what is the necessity for this additional law society. What useful purpose will it serve? In short, what is its raison d'etre? The special answer is, that in the county of New York there are some 14,ooo practicing lawyers who do not belong to any law association, who are interested in everything that pertains to the profession, to the law, to the administration of justice, and to the maintenance of a high ideal of professional character and aims, who at present have no authentic voice or organized influence in matters so deeply affecting these vital interests; and hence there is an ample and unoccupied field for this new association. 9

Though it is unlikely that every one of the 14,000 lawyers in New York County who were not members of the Association truly had an interest in "everything that pertains to the profession," still the figures gave the argument force. In 1go8 the elder Association had approximately 1,750 "resident" members, or about one in every nine or ten of the lawyers in New York County. This was a smaller ratio than the one in eight it had achieved in 1871 after only eighteen months of existence, and only about half of the one in five it achieved by 1875. Very gradually thereafter the ratio had declined to a point where the Association could be accused, with justice, of having become considerably more exclusive than its founders had intended. As Dillon continued with his speech, he denied that the founding of a new association should imply any criticism of the older one. "It is in no sense a rival, much less a hostile organization to the Association," he insisted, and with the passage of time the concentration of lawyers on Manhattan has become so great that in all likelihood two associations are indeed better than one. Although Dillon said nothing critical about the Association, others did. One of these was J. Noble Hayes, a director of the new

Criticism of the Association

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association, who in an article for The Green Bag spoke out bluntly. The Association of the Bar, he said, . . . partakes of the nature of a social club, and its doors are by no means thrown open indiscriminately to the rank and file of the bar. Its membership dues are $5o a year, and its library and club house are situated too far from the Court House and business center of the city (about three miles) to be generally available. Its policies have always been negative policies, and it is not constructive, but critical merely, in its aims. Its studied conservatism has been at the expense of popularity; and it cannot be said that it has proven effective on many occasions in influencing public opinion. Many abuses have grown up during its time seriously affecting the administration of justice in the city, the correction of which it has left to others. Its membership has always been of the most distinguished character; and it has been governed wisely, within its limits, by a clique of very eminent gentlemen who are sometimes spoken of as the "Old Guard of the Bar" and who have been the soul of many reform movements outside the Association. Their control within the Bar Association has been too absolute to diffuse general interest in its affairs, its important meetings are poorly attended because debate is discouraged, and this is felt most among its younger members, although by no means confined to them. It is an association of great prestige but little real power and no initiative. That it has been and is a great conservative body of essential usefulness and high purposes none will be found to question. A large percentage of the lawyers who have joined the new and more democratic Association, and are upon its most important committees, are its members and they have joined the Lawyers' Association not because of any lack of loyalty to the old Association but because they see the uses of the new, and believe it will form a potent ally and not a rival in the common cause of maintaining high standards upon the bench and at the bar, and promoting the efficiency of the courts of justice. Such are the principal if not the only reasons why New York County has two bar associations. If there is an essential difference between the two it consists in this, that the policy of the Association of the Bar has been to distrust the profession as a whole and

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guard against action by it, while the policy of the Lawyers' Association is to trust it and encourage it to action, in the belief that the real leaders will lead and the just cause triumph, and that anything is better than supineness, -a difference, perhaps after all, of method. 10 Much of what Hayes said was demonstrably true. Attendance at the Association's meetings was declining; debate was discouraged. Theron G. Strong, a middle-aged member, reported later that in Carter's day, "his views always prevailed." 11 When the County Lawyers' Association prepared a pamphlet in November 1go8 to distribute to members of the bar, it included Hayes's article because "it constituted a singularly lucid and comprehensive statement of the aims and purposes of the New York County Lawyers' Association." Whether or not the article's criticism was fair, the lawyers of New York County responded to the new association's appeal for members. Dues had been set at $10 a year in contrast to the elder Association's $5o, and no admission fee was required as opposed to the Association's fee of $100. Within a year the new association had 3,401 members, almost double that of the old. Further, seventeen of these were women lawyers, a class the Association excluded and would continue to exclude for twenty-nine years, until 1937· But the older Association, even if it felt rebuked by the success of the younger, saw no need for a program of reform. It continued under the "old guard" to develop its library, to increase the work of various committees, and to survey the world with considerable self-satisfaction. After all, the city's most distinguished lawyers belonged to it. Who or what could challenge it?

Chapter 13 THE PRACTICE OF LAW is always changing, but generally so slowly that except for some cataclysm, like the introduction of Field's Code of Procedure, lawyers of a given generation are seldom conscious of it. But in the quarter century 18go-1915 the changes, at least in New York, came so swiftly that no one, not even the public, could be unaware of them. While some lawyers may have rejoiced, many lamented; for not only the practice of law changed (and along with it much of its apparatus), but even the concept of what it was to be a lawyer began to shift. In time this affected the kind of leadership lawyers could exert within the city and the kind of role the Association could be expected to play. Many of the changes were the result of the growth of business and the development of the corporate form of organization. Though the Civil War had stimulated industries, most of them, with the exception of the railroads, had continued to be privately owned and organized as unincorporated joint stock associations. Then in the 188o's the traditional economic individualism of the pioneers began to give away with extraordinary rapidity to the collectivism and limited liability of the publicly held corporations. An early example of what consolidation could mean occurred in 1871 when the Pennsylvania Railroad succeeded in putting 3,000 miles of track under a single management by merging 138 independent roads. The concentration of existing wealth and the potential for accumulating more were vastly increased, as was the complexity of the legal and business problems connected with

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management of the road. In the next decade many more businesses, observing the increased power of a giant such as the Pennsylvania, began to follow its example. New industries- based often on a patent or a discovery, such as oil- were inclined now to organize as corporations and to start with the kind of financial backing that twenty years earlier scarcely would have been imagined after years of successful operation. 0 By the 18go's in New York business law, and more specifically corporate law, had begun to dominate the practice of many lawyers, if only because it yielded the biggest fees. But under the pressures of this kind of practice the line between business and legal decisions grew increasingly hard to distinguish, and the concept of what a lawyer did for his client began to change. Traditionally the greatest lawyers in the city were primarily trial lawyers, men like Evarts whose greatest cases, such as the Johnson impeachment or the Beecher trial, still connote something to later generations. Generally the lawyer was hired after the client was in trouble and the facts of the case were set. Often he did not enter the case until the client was already in court. But in the practice of business law which was developing, the lawyer was brought into his client's affairs much earlier: his function was to keep the client out of trouble and, most of all, out of court. Bankers, for example, who were considering large financial commitments for the purchase of corporate securities wanted to know in advance if the venture was legal. What they feared most was a long suit in court which might tie up their money for months or even years. Elihu Root and his contemporaries, who were in their fifties at • For example, in round figures, the National City Bank (now the First National City Bank Corporation) in 1891 had total assets of $34,ooo,ooo and total deposits of $17,ooo,ooo. By 1900 these had increased five times to $168,ooo,ooo and $86,ooo,ooo. By 1909 they had risen to $28o,ooo,ooo and $147,ooo,ooo, and by 1919 to $887,ooo,ooo and $752,ooo,ooo. Thus in twenty-eight years its assets had multiplied 26 times and its deposits 44. From Walter K. Earle, Mr. Shearman and Mr. Sterling and How They Grew (New Haven, Yale University Press, 1963), P· 172.

Two forms of charitable bequests

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the turn of the century, formed the generation of lawyers in transition. Root, for example, was an excellent trial lawyer, but none of his cases after those of the Tweed era have held the attention of later generations. \Vhat has come down about Root is his skill in keeping clients out of trouble. He may even have been the first lawyer of whom a client is reported to have said, "I have had many lawyers who have told me what I cannot do; Mr. Root is the only lawyer who tells me how to do what I want to do." 1 What this could mean is illustrated by the different histories of the Tilden Trust, which was set up by Tilden himself, and the Carnegie Corporation, for which Root was responsible. In 1886 when Samuel J. Tilden died, he left an estate of more than five million dollars, much of it the result of good investments in railroads and iron mines. For its day it was a fortune. By his will he left about two-thirds of it to an institution which was to be created as soon as possible after his death by an act of incorporation. It was to be known as "the Tilden Trust" and was to have the "capacity to establish and maintain a free library and readingroom in the City of New York, and to promote such scientific and educational objects as my said executors and trustees may more particularly designate." Tilden had drawn the will, and not content with his own opinion of its validity, had shown it to Charles O'Conor and James C. Carter. Both had declared it valid. Nevertheless, Tilden's heirs, with Joseph H. Choate as their counsel, persuaded the Court of Appeals to rule the clause invalid because, as the majority opinion declared, "The will of the trustees is made controlling, and not the will of the testator," that is, the trustees and not Tilden would select the projects to be carried out." "Tilden v. Green et al., 130 N.Y. Reports 29 ( 1891 ), p. 64. The Tilden Trust, however, was already established by the time of the decision and had in hand about $z,zso,ooo, or about a third of the sum it would have realized if the will's clause had not been contested. This money came from an heir who, in exchange for $975,ooo, relinquished to the trust her interest in the Tilden estate. Eventually in 1901 the Trust was combined with the Astor and Lenox Libraries to form the New York Public Library, for which a new building was erected in 1911 at

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The case, which continued from court to court for four years, caused a tremendous stir. Lawyers in particular were delighted with it, for Carter defended the will against Choate, and there were many fine points to be appreciated. The public, on the other hand, was appalled. It grasped that something imaginative and generous had been attempted but had been ultimately defeated by pettifoggery. To many laymen the case seemed the practice of law at its worst. The lawyers took enormous fees, and yet if Tilden, O'Conor and Carter could not be sure of the will's validity, what meaning was there in a legal reputation? The fight over the Tilden will was the practice of law in the old style, a battle of lawyers in court, with the public following each round. Twenty years later the same issue was handled differently. About 1gu Andrew Carnegie, with a fortune of $15o,ooo,ooo to dispose of, wrote out his will and took it to Root to examine. The will proposed to create a trust, with charitable purposes similar to Tilden's, to which most of Carnegie's money would go on his death. Root strongly advised against such a plan. He told Carnegie the history of the Tilden will and trust and suggested that Carnegie at once set up a corporation with whatever charitable purposes he desired and give it a moderate sum of money to use. Then by his will, if he still wished, he could leave the bulk of his money to the corporation. Anyone attempting to attack the bequest would have a hard fight, for the corporation would already be in existence, with its purposes already approved by the state legislature and its trustees already appointed. 2 Carnegie took the advice and set up the Carnegie Corporation, to which he soon gave $125,ooo,ooo. The gifts were made quietly, and though the public eventually became aware of the corporation, probably very few knew of Root's part in its creation. There had been no will offered for probate, with stories in the papers about the size of the estate and the purposes to which it would be Fifth Avenue and 41st Street. See Alexander C. Flick, Samuel ]. Tilden (New York, Dodd, Mead, 19.39 ), p. 517.

Changes in the practice of law

191

devoted, and of course, there had been no court action to attract the public's attention and to publicize the lawyers. The new style of practice which Root exemplified so decreased the amount of trial work among the leaders of the bar that by 1917 one of them could conclude, "The great court lawyer has well-nigh disappeared." 3 This was an exaggeration, for there were some very good trial lawyers practicing; but they no longer led the bar. Typically, one of the leading lawyers in this period, Francis Lynde Stetson, was famous for his work in railroad reorganization and for developing forms of corporate mortgages. 0 The new kind of work required changes in the organization of a law firm. There had always been some lawyers who almost never left the office for court, but now in firms with large corporations for clients they became the majority. To support the kind of work they did, the clerical staff began to grow and filing systems to expand. This did not mean that the pressures of practice were any less, only different; for though trial work is exhausting, a business practice also has its tensions. In the old days a trial or an argument on appeal could always be put off to suit the convenience of the lawyers. What did it matter if Beecher's alleged adultery of several years past was argued on Tuesday or Wednesday? But whether a force of ten thousand men in a steel mill or on a railroad went to work on Tuesday or Wednesday meant a great deal in wages, and of course a delay even of hours could be crucial to a company or a bank trying to float securities on an uncertain market. The different tempo of office practice was made possible in part by changes in the apparatus of a law office. The goose quill had given way slowly in the 186o's to the steel point pen, and red tape in the 187o's to the rubber band. Thereafter the tempo of change quickened. The first typewriters for commercial use appeared in 0 Stetson was president of the Association for Iglo-1911. At that time his firm was Stetson, Jennings & Russell. After several slight changes in name this became, in 1925, Davis Polk Wardwell Gardiner and Reed, then Davis Polk Wardwell Sunderland and Kiendl, and finally today Davis Polk & Wardwell.

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1878, though at first they wrote only in capital letters and were

used very little. But that problem soon was resolved, and despite the conviction of the older lawyers that clients would be offended by the impersonal typescript, by 1890 typewriters were standard equipment in most firms. Telephones also first became practical in a small way in 1878, though for a time, of course, there was hardly anyone to call. They were awkward to use, with a long receiving arm and a crank to call the operator. Generally too, the phone was set on a wall in the outer office, where anyone attempting to use it created a disturbance. What is now the fi1m of Cravath, Swaine & Moore tried to solve this problem by taking competitive bids, in September 1888, for a closet to enclose the phone. One bidder offered a pine closet, including shellac and stain, for $22, and another a considerably larger closet "with glass in upper panels and a moveable sash on top,. for $40. The firm chose the pine box, but in 1891 it solved the problem in a diHerent fashion by putting extensions on the partners' desks. About the same time women began to work in offices, and in many firms the older partners, who had struggled in vain to save their offices from the machine, now fought to defend them from women. In 1890 at the future Cravath firm, according to its historian, when old Clarence Seward saw the first female stenographer "he asked of the first associate at hand: 'Who brought her in?' 'I understand it was Mr. Guthrie,' was the reply. 'Well, Mr. Guthrie will get her out!' said Seward. After two days she was out, with a check for $12 for a week's wages." And no other woman was employed in the office until August 1897, the month after Seward died."' The struggle of the old lawyers to keep the world as they had known it for just a few years more is pathetic: the end of life " Robert T. Swaine, The Cravath Firm and Its Predecessors, 1819--1947 (New York, Ad Press Ltd., 1946), Vol. 1, pp. 450, 451; in the period 1885-18go the firm was titled Seward, Da Costa and Guthrie; in I8go--1893, Seward, Guthrie and Morawetz; in 1893-18g6, Seward, Guthrie, Morawetz and Steele; in 18g6-1goo, Seward, Guthrie and Steele; in 1901-1906, Guthrie, Cravath and Henderson.

Professional fellowship declines

193

should not be agitating. But the changes came very fast. In the 188o's central steam heating, with its clanking pipes and smell, began to replace the stove and open fire, which despite its ashes had been beautiful and on occasion induced philosophical thoughts. At the same time elevators began to be installed in existing buildings, and in 1908 the Singer Building, the first downtown skyscraper, rose forty-seven stories. Also in the 188o's elevated railways transformed the trip to and from Wall Street. Whereas many lawyers had been accustomed to walk up- and downtown in preference to the smelly, crowded horse-drawn cars, and so had become familiar figures to the tradesmen along the way, now almost all rode the elevated, traveling along at the tops of the houses, and were seldom seen by anyone except their clients, their colleagues and their families. Probably the last lawyer, not a politician or statesman, whose face and figure were familiar to New Yorkers outside the legal world was Joseph Hodges Choate, who continued to try cases through his eightieth year in 1912, and to speak on almost every public occasion until he died in 1917. Under the impact of these changes some of the good fellowship of practicing law began to disappear. As the amount of trial work for most lawyers decreased, they met less often at court. Instead of gossiping there with each other while waiting for their cases to come on, they now stationed a clerk at court who telephoned them when to come up. Instead of visiting each other when they wanted to talk something over, they picked up the phone. Even in their correspondence the typewriter seemed to induce in most of them a dull formality of address. Much less of the man appeared than in the handwritten letters of the past. With the decline of personal relations between lawyers, understandably their sense of being colleagues in a profession also declined. For those who missed the sense of fellowship, the various bar groups gained importance as a place where lawyers could meet and exchange ideas. For the others who cared nothing for this side

194

Causes and Conflicts

of the profession, their work and their attitude toward it hardly differed from that of any man of business toward his particular trade. An extreme example of this new kind of lawyer was John W. Sterling, who in 1868 at the age of twenty-four had become a partner in the firm of Field and Shearman. When that partnership dissolved in 1873 because Field had departed for Europe, Sterling and Thomas G. Shearman, on an even basis, founded the firm of Shearman and Sterling, which continues today. Shearman, though he was not successful with juries, was a lawyer of the traditional type, and he had the legal knowledge and skill on which both partners chiefly relied. Sterling's contribution to the firm, according to its historian, was "his common sense and his intuitive judgment in business matters, particularly those presenting problems of finance." 4 The statement hardly does justice to the fact. Sterling had a genius for attracting rich men to him and for advising them well on the problems of their companies. In turn these friends gave him profitable advice from time to time about investments on the stock market. Quite on his own he made a fortune by developing real estate in Westchester. He never under any circumstances appeared in court; he never joined any bar association or took any interest in the profession's problems; and he never participated in the activities of any church, political party, or civic or other public movement. But at his death in 1918 he was a director or trustee of twenty-four companies, and by the residuary clause of his will he left more than $35,ooo,ooo to his alma mater, Yale. 0 Of the fourteen honorary pallbearers at his funeral, twelve were either extremely rich men or heads of huge companies, and only two were lawyers: George L. Ingraham, who at the time was president of the Association, and Francis Lynde Stetson. Though Sterling practiced law all his life, to men like Evarts, O'Conor or " The bequest, besides funding the Sterling professorships, which vary in number from year to year, built the Sterling Memorial Library, Law Buildings, Hall of Medicine, Chemistry Laboratory and Divinity School Quadrangle.

Professional independence decreases

195

even Carter he would have seemed more of a businessman than a lawyer. They might have been distressed, too, with the similarity of his thinking to that of his clients. Since Sterling was never a public figure, perhaps it was of no great significance that "he viewed with suspicion and distrust all 'liberal' or 'advanced' social doc~ trines." 5 But at the time there were many other corporation lawyers, leaders of the profession who, in the public's opinion, did seem to be spokesmen on every occasion for their clients' inter~ ests. This fact, or fantasy, conflicted with the traditional concept of a lawyer (which the profession had only slowly reestablished after the Anti-Rent wars) as a man who was valuable both to his client and to the community for the independence of his thought. When Root ran for senator in 1gog, the New Y01·k World (which meant Joseph Pulitzer) opposed him bitterly on the ground that he would represent only Thomas Fortune Ryan's corporations. At the end of Root's term, when this had proved untrue, the World apologized. 0 Nevertheless, the suspicion remained with many that Root was the exception and that the typical Wall Street lawyer had become the lackey of the corporations, just as many years earlier during the Anti-Rent wars, the farmers believed that the lawyers had become the lackeys of the landlords. Now, as then, the popular image was unfortunate for the profession. But perhaps the change most distressing to the older lawyers of this time occurred in the method of legal argument. The change at first was very slight, in emphasis rather than kind, but it seemed to strike to the roots of the profession's claim to intellectual eminence. Traditionally the lawyer in his argument relied on principles of law which he applied to the facts at hand, without much regard for decided cases. This was the kind of law practice that Dwight had taught at Columbia Law School. The trick was to be 0 Theodore Roosevelt understood Root's concept of a lawyer better tban Pulitzer. He remarked to a friend; "What tbe people do not understand about him [Root] is that if he were President they would be his clients." Philip C. Jessup, Elihu Root (New York, Dodd, Mead, 1938), Vol. 2, p. 149·

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Causes and Conflicts

so absolutely sound on the principles that the lawyer could then demonstrate clearly how they applied to any set of facts. Carter was a brilliant practitioner of this method of argument, and in his pleadings and oral arguments he seldom bothered with cases. If the other lawyer offered a series of decisions against him, Carter simply argued more clearly and forcefully that the principles, when applied correctly, must produce the answer he advocated. Thus the ideal lawyer was one who needed no law books at all. He had it all in his head. This style of argument had evolved in a period when few cases were reported, and fewer still in full. In New York, official stenographers for the courts had not been authorized by statute until 1865, and even for many years afterward not all decisions were reported in full. The impracticality of writing them out in longhand was probably enough to preclude it. But then to aid the stenographers came the typewriter; and with the development of high-speed presses and better means of distribution, the volumes of reported cases increased until their editors began to claim completeness for them. At the same time Langdell at Harvard Law School developed a method of studying law known as the "case method," in which the student, from an intensive study of cases, evolved the principle for himself instead of having the principle expounded to him, as in Dwight's method. For these reasons precedent as revealed in cases increasingly was emphasized, to a point where a lawyer like Theron G. Strong could lament: "On the whole, the effect of the large number of adjudged cases contained in the reports has virtually transformed the profession from a class of lawyers able to practice without law books to a class almost entirely dependent on the adjudged cases." 6 For Strong and for many others, the lawyer as a thinking man, as the most reasoning man in the community, was declining into a clerk, a mere expert at looking up cases. In different degree all these changes affected the kind of leadership the Association, or its members individually, could offer to

The Association fails to act

197

the bar or to the city. No office lawyer, without some other side to his career, ever has achieved the position of public leadership which the great trial lawyers of earlier generations achieved simply by appearing day after day in court. The faces of office lawyers are less well known, and their talents, even when understood, are counted for less. There is drama in the courtroom; a man who can stand up and talk before his fellows with wit and power in a tense situation is, in the opinion of many, a great man. But there is no passion in a corporate reorganization, even if argued in court, and not even much principle, for the rules governing it touch nothing basic in human life: they can be changed overnight by a legislature. The public, as if acting in the belief that dull work makes a dull man, began to look elsewhere than the legal profession for its heroes. There was nothing any lawyer or any bar association might do to reverse the trend: for reasons quite beyond the control of the profession, its position in the community was declining. But in another area where the profession was losing prestigein the increasing identification of its leaders with big business the Association, in terms of its history, might have been expected to do something but evidently chose not to. One of the great scandals of this period, IBgo-1915, arose from the practices of the insurance companies. Early in 1905 Pulitzer began a series of articles in the World which raised such a storm that Governor Francis W. Higgens was forced to order an investigation. A legislative committee was appointed with Charles Evans Hughes as counsel. He was a Republican, forty-three years old, respected in the profession but not well known outside of it. One of the reasons he had the appointment was that many of the more distinguished lawyers were either directors of the companies or counsel for the executives. The hearings began in New York in September, and very soon Hughes, who seemed to understand far more than the executives about insurance, was penetrating their facade of figures to expose

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Causes and Conflicts

acts more questionable and corrupt than even Pulitzer had suspected. To take just one company, Mutual Life Insurance, Hughes found that while its total income between 1885 and 1904 had risen four times, its dividends to policyholders had dropped by a third. The trouble seemed to be that the president, Richard A. McCurdy, together with his son and son-in-law, had been taking money out of the company through salaries, commissions and other devices for sixteen years at a rate of almost a million dollars a year. Though the 40o,ooo policyholders were supposed to control the company, in fact the voting was manipulated so that about 200 controlled it. In the Presidential campaigns of 1896, 1900 and 1904, the company made large contributions to the national committee of the Republican party without consulting its policyholders. Within the state, it contributed about $w,ooo a year to Senator Thomas C. Platt, the Republican boss, to ensure that legislators would be favorable to it. At Albany it kept a house- which the press dubbed the "House of Mirth"- at which politicians were entertained in gratitude for their work in controlling legislation. Two members of the Senate's insurance committee had lived at the house as the company's guests. For certain legislators, poker games were held at which the legislators always won. The actions of other companies, chiefly Equitable and New York Life, were just as appalling. The problem for the legal profession in this was exemplified by Root, who was a director of Mutual Life. Though none of the revelations of the investigation specifically implicated him in the scandals, nevertheless he had been part of a system which the country condemned as dishonest and corrupting and which the state legislature now set out to reform. The distrust which Pulitzer and many others felt for Root and other business lawyers on corporation boards, though perhaps not justified, was understandable. Root also exemplified the problem for the Association, for he was its president at the time of the investigation. Yet in none of

The Association under the Brahmins

199

the revelations did he, or apparently any other member, see an opportunity for the Association to act. He did not appoint special committees to make recommendations for regulating the insurance companies, halting bribery among legislators, or disbarring lawyers who had accepted bribes as legislators. Though Hughes was a member of the Association, it did not even vote him a resolution of commendation for his work. The public, however, considered him a hero and elected him governor of the state in 1906. For his reforms many people compared him to Tilden. Meanwhile the Association, which in Tilden's day had been admired as one of the crusading organizations of the city, was hardly thought of at all by most men. Within the Association, life continued pleasant and placid. In 1968 Judge Edward J. Dimock put down some recollections of what it was like in the second decade of the century: The power of the Association was centered in a very small group. I remember hearing my elders discuss the question why there was never a popular movement to bring new blood into the administration. The time must have come when the ruling group felt that they would welcome turning the reins over to what they considered a properly qualified group. A series of teas were held before the open fire of the Association one winter and younger lawyers were invited to meet the Brahmins who presided. The talk was about what the Bar Association meant and what the guests' ideas about it were. Evidently a sufficient number of young lawyers were identified who assured the ruling group that transfer of the power into their hands would not revolutionize the institution, because I was later told by my senior, Mr. Lewis L. Delafield, 0 that the ruling group would be willing to turn the power over to a younger group if we wanted to get together. Nothing was ever done about it, and the same crowd of old gentlemen kept on running the institution. . . . 0 The son of the Lewis L. Delafield (d. 1883) who led the fight to stiffen the requirements for admission to the bar. In 1892 with Eugene D. Hawkins ( t86o1919) the younger Delafield founded the firm of Hawkins & Delafield. The firm, over the years, has added and dropped various names and today is known as Hawkins, Delafield and Wood.

zoo

Causes and Conflicts

A very small proportion of the lawyers who were doing the actual work in the courts were members in the early tgoo's. The fact was that the institution was run by office lawyers. I do not know whether the lawyer who spent most of his days in court did not want to join the Association or whether he thought that he might be turned down. There is no evidence, for example, that Max D. Steuer ever applied to join, though for years he was unquestionably the leading trial lawyer in the city. 0 The fact was, however, that the Association for a time considered that there was a class of lawyers who were good enough to be members of the bar but not members of the Association. . . . I must avoid giving the impression that the organization in the early decades of the century was merely a mutual admiration society of self-appointed leaders of the bar. Those who ran it may have been socially prominent and self-appointed but they were excellent lawyers and ran a tight ship. They produced the best possible working library for themselves and their clerks and associates. The committees were composed of able lawyers and produced good results. Much good work was done by the Committee on Law Reform. The Judiciary Committee's labors were always seriously conducted, although rarely heeded by the electorate. Nevertheless the public was constantly informed that those who were elected to the bench were not those that a group of very prominent and successful lawyers thought best qualified. 7 To these committees doing good work must be added the committee on grievances, which in this period was developing a standard and procedure for the profession's self-discipline which in time would become a model for associations in other cities and states. Nevertheless, probably most of the public most of the time, if it thought about the Association at all, did dismiss it as merely "a mutual admiration society of self-appointed leaders of the bar." • The records of the committee on admissions, which are believed to be complete, have no trace of an application by Steuer himself or by anyone on his behalf.

Chapter 14 THE

of World War I hurried the Association into a series of financial problems which it probably would have had to face in any event but which by 1918 had become serious. Real estate taxes, from which the Association was not yet exempt, had risen; so too had the wages of the staff. Yet the number of members was only just remaining stable, at about 2,150, while the value of their dues, because of inflation, was decreasing. To aggravate the problem, the Association in the years since it had moved to 44th Street had purchased several of the small buildings to the east of its own and, without intending it, had entered the real estate business. The idea had been to have the land ready in case the Association might want to expand onto it. But with the war and the low membership, expansion now was out of the question, and meanwhile the Association was left with a number of poor, even obsolete buildings from which it received relatively little rent. For the time being, the Association continued financially sound because the members were responding loyally to what were called "voluntary assessments." To one such appeal which a special committee on finances sent out to 1,950 members, 923 members returned $IO,J05. 1 Considering that the gifts were made in addition to dues ranging from $30 to $6o a year, it probably was a good response; but no one doubted there was a limit to the number and success of such appeals. The most obvious solution to the financial problem was to double the membership, though to some members, at least, this solution was unattractive. In any event, while the war continued and IMPACT

202

Causes and Conflicts

thousands of young lawyers were in the army, it simply was not possible. As the special committee on finance reported to the executive committee on November 8, 1918: "The probabilities of an actual increase in the membership of the Association are practically negligible for some years to come. Indeed, if the Association manages to retain its present number of members, it will be an excellent showing." 2 Three days later, however, the war abruptly ended, and in the next few years the Association had the chance to reorganize itself under more favorable conditions. Fortunately also, it was entering a period ( 1919-1925) in which it would have three presidents, John G. Milburn, James Byrne and Henry W. Taft, all of whom saw the problems clearly and were determined to tackle rather than to dodge them. Ultimately, because the problems required time to solve, the cumulative effect of the men's work was more important than the accomplishments of any one of them; and this apparently was achieved quite by chance. There is no evidence that they or any group of their supporters planned or even discussed a program for the Association. Indeed, there is no evidence that the three men were friends or even greatly admired each other. Their personalities were quite different, and they stirred enthusiasm and admiration among different groups within the Association- which may be a reason why, taken together, they were able to accomplish as much as they did. John G. Milburn, the first of the three to be president, was a favorite of the "old guard." He had been born in England, the eldest son of a successful civil engineer, and had been educated there and in Belgium to follow his father's trade. But at eighteen he had left England to join a married sister in Batavia, New York, and after some casting about had determined to become a lawyer. He studied by working as a clerk in a local firm and in 1874 he became a member of the bar after the legislature had passed a special bill allowing tl1e Supreme Court to admit him, though still a British subject, on his declared intent to become a citizen.

John G. Milburn

203

Five years later he moved to Buffalo, where he soon became the leading lawyer and first citizen of the city. When the Pan-American Exposition of 1901 was opened there, Milburn introduced President William McKinley on the inaugural program, and it was in Milburn's house that McKinley stayed and, after he was shot, died. A few years later, in 1904, Milburn was invited to New York to join the firm of Carter & Ledyard. Earlier that year Carter had retired from practice, and his partners had settled on Milburn to replace him. At the time no greater compliment could have been paid to a lawyer, or more positive proof offered of his standing in the state. By all accounts Milburn was a charming man, unusually wellread, happy in his family, and extremely sociable. Perhaps heappealed particularly to the old guard because he seemed to them to represent the best of England and of New England, combining the polish and education of the old with the initiative and drive of the new. Perhaps, too, there was a touch of snobbery in their admiration; for among lawyers of Anglo-Saxon heritage, who from their study of the common law have become familiar with English history, there is apt to be a feeling that English men and ideas are the best. And certainly part of his appeal was that he was politically conservative. As Benjamin N. Cardozo, in a memorial address, observed of him: "the existing social order had brought him opulence and fame and happiness. He did not share the views of those who would supplant it by another or even greatly change it." 3 In contrast, the second of the three presidents, James Byrne, was the idol of the young lawyers of the day. He was of Irish heritage, a Catholic, born in Springfield, Massachusetts, who had partly worked his way through Harvard College and Law School. His devotion thereafter to Harvard was continuous and strong and, combined with an articulate interest in the problems of education, led to his election in 1920 to the Harvard Corporation, the

204

Causes and Conflicts

governing body of the university. He was the first Catholic in the corporation's history to be elected to it, and John Jay Chapman violently attacked its members for their choice. After Byrne's death in 1942, one of the young men who had worked in his office for a few years, and ever after kept his picture on the wall, described him as follows: He was warm, and violent, and unjust. He was keen, and sparkling, and exciting. His voice was clear and pleasant. He apprehended the essential elements of a complicated problem with incredible rapidity; but when he came to discuss it, he had a disorderly approach. Instead of stating the facts or the reasons which led him to a conclusion, he began at once to discuss the particular part of the subject which interested him. It was important then that one should find out exactly what Byrne was talking about, before he found out that you were at a loss. Because otherwise considerable tension was apt to develop very fast. And then he would stop and take the trouble to draw your horoscope: peering down into the future without being able to discern any hope whatever. If, however, you had been over the course sufficiently so as to know what the system, or lack of system, was going to be, these periods of tension were very much reduced. On the whole the conclusion of those who worked for Byrne is that to associate with him on any terms was a privilege. He was a Catholic; and certainly, after he was married he was a very devout and punctilious Catholic. This caused him a good deal of inconvenience. Naturally, being himself, he married a Protestant, and when you went out to stay with him over the weekend, Byrne and all the maids and the children would get up very early and go to Mass, while Mrs. Byrne and Potter, the butler, and distinguished guests would have an opportunity to rest rather late. Being a Catholic was more than just an inconvenience, however; it was a cause of some apprehension for Byrne. For I think he was always expecting that some unfair discrimination would be made against his children because they were Catholics. As an actual fact, he had very charming children; and they were entirely able to take care of themselves; and eventually they all married Protestant descendants of the Regicides; and there was never any discrimination against them.

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William M. Evarts, first president of the Association ( 1870 to 1879), as he appeared around 1868 when he defended Andrew Johnson in the impeachment trial. Although he was a small man, Evarts had a Ciceronian head and nose and a striking presence in the courtroom. Among the famous proceedings he took part in were the Alabama Claims case, for the United States; the Beecher-Tilton case, for Henry Ward Beecher; and the HayesTilden contest, for the Republican party.

Samuel J. Tilden, who led the movement for reform in 1870 to 1873 and used the Association as one of his tools. The drawing is a campaign poster printed in 1876 when he was governor of New York running for President on the Democratic ticket.

Charles O'Conor, president of the New York Law Institute 1869 to 1877. He and Tilden were the men primarily responsible for breaking the Tweed ring.

David Dudley Field, "father of legal reform." A combative man, he was the focus of a dispute in the 1870's which threatened to destroy the new Association. In the 1880's the Association mounted a campaign to defeat his Civil Code.

Contemporary cartoon: Tilden is searching through Broadway Bank records for the secret accounts that eventually convicted Tweed (cowering at right).

Judge George G. Barnard of the New York Supreme Court. Dashing, dandified, and thoroughly dishonest. He was impeached in 1872.

Dorman B. Eaton, a founder of the Association, who was beaten by thugs and left in the street for dead shortly after the first organizational meeting.

S~ERIFF'S

OFFICE

OF THE CITY AND C9UNTY OF NEW YORI