THE JUDICIAL SCANDALS OF 1869

From Henry W. Taft, A Century and a Half at the New York Bar (1938) pages 348-350 (contains excerpts from the Diary of George Templeton Strong),

from http://www.law.du.edu/sterling/Content/ALH/taft.pdf

 

IN MAY 1869, the year of the scandals in the Judiciary, George Templeton Strong notes in his Journal that the tenor of the valedictory address of the late United States District Judge, George Chandler Holt, and the addresses of the other speakers at the Columbia Law School Commencement was that "corruption in our legislative bodies--our great corporations--& now even in the state judiciary--& in the sheriffs office-has at last reached a stage that must produce Revolutionary action if no legal remedy can be found;" and he adds "The strongest expressions to this effect received the loudest applause, & every condemnation of our accused Elective Judiciary System brought down the house." Criticism of the bench is repeated and emphatic. Mr. Strong concludes in his Journal a long statement of the condition with the following:

 

"With us, in this State, this supreme object of Civil Government is so far from attainment that a Judge of our Supreme Court is prima facie disreputable. His office is something against him, to be apologized for & explained away before one can recognize him as honest & a gentleman. I verily believe that by pulling one or two strings, I could obtain 'an allowance' of $150,000.00 in the Schermerhorn partition suits now in my office, & that allowance would be a lien on all the real estate covered by those suits. It might be good fun to get such an award, just to see how shocked & confounded Edmund & William would be when they heard of it. But the joke would be indecent--a profane trifling over the corpse of a profession that was once most honored & noble."

 

On February 1, 1870 was held the first meeting to establish the Association of the Bar of the City of New York: "Last night's meeting (26th St. & 5th Ave.-G.C.A.'s School building) was successful. It sought to create a 'Bar Association,'& appointed committees for that purpose. The decent part of the profession was well represented. Nearly 200 were present, & among them was the virtuous D. D. Field. Van Winkle in the chair. Speeches by Judge Emott, Henry Nicoll, Evarts, John McKeon (!), D. B. Eaton, S. J. Tilden &c generally rather good, though too subdued in tone to suit my taste. But Choate & others told me they thought moderation best at first. I have not much hope of good from this movement, but it may possibly accomplish something."

 

As if to justify the movement on the part of the bar, the next entry deals with the conditions in the Supreme Court in the following manner: "Here is a specimen--a very mild specimen--of the way in which the Supreme Court of the State of N. Y. does business. In these Schermerhorn partition suits, the parties, all sui juris & all represented, agreed on three Commissioners, all well known as experts in real estate, & as beyond exception. When the interlocutory decree appointing them is moved for, Mr. Justice Cardozo says that Mr. Gratz Nathan, another little Jew, &

a nephew of the Judge's, must be a Commissioner, & that we may choose which of the three we will strike out to make room for him!!! Nathan would do no service & would charge $10,000 for doing it. Cardozo would confirm the charge & probably pocket half the money. But six days later Judge Cardozo changed his mind "having been notified that we should simply abandon the suits & make a voluntary partition in case he persisted."

 

Mr. Strong becomes impatient at the reluctance of the Bar Association to proceed against the judges, and in December 1871 he notes: ďItís members are afraid to get up a case agst Barnard, Cardozo & Co., though abundant proof of corruption is within their reach. If they should fail, Bamard &c would be hostile to them, & they would lose clients. The Counsel of the VII Bishops had more backbone. I feel inclined to resign from this Bar Association." But subsequently, the Association did make charges and the Judiciary Committee of the State Assembly took them up with the result which is a matter of judicial history of this state. Mr. Strong drops into biblical quotations in the following words: "'Run ye to & fro through the streets of Jerusalem, and seek in the broad places thereof, if ye can find a man, if there be any that executeth judgment, that seeketh truth.' Unless some peaceful & lawful remedy be found, a dangerous convulsion cannot be far off. To degrade venal judges & to restore confidence in the Courts, is manifestly the first step toward reform. If God restore 'our Judges as at the first, & our counsellors as at the

beginning'--regenerate Bench & Bar--breathe into them the spirit of Chancellor Kent & John Wells, & of their professional brethren, every department of public service will soon be disinfected. But such energy can hardly be hoped for."

 

Subsequently, Mr. Bidwell was retained by counsel for Cardozo, but only "for consultation" and Mr. Strong adds: "This is for the sake of his white cravat & his high character, for there can be nothing to consult about, & there has been no consultation. Cardozo wants to be able to talk about 'my eminently respectable Counsel, Mr. B. & Mr. O.'*****Bidwell took this retainer reluctantly, feeling bound by the strict rule that forbids a refusal, unless there be an actual prior retainer on the other side. But I think he was wrong, and that that rule applies to none but judicial proceedings. On investigations by Legislative or Congressional Committees, & the like, Counsel do not appear professionally & as sworn officers of a Court, but merely as experts in badgering witnesses, and they have a perfect right to accept or decline that function. This Committee is no Tribunal. I regret that Bidwell should have befouled his fingers by touching--even formally--such filth as Cardozo.-- The immaculate Barnard is weak enough to publish a 'protest' against Mr. S. J. Tilden's acting as a member of this Committee, because Tilden has publicly denounced

him, & is not impartial. Impartiality is the first qualification of a Judge, but it is not essential to a Prosecutor, or to him who collects evidence for a prosecution."

 

The embarrassing position that Mr. Bidwell was placed in is indicated by the following entry of March 21, 1872: "Bidwell subpoenaed to attend Judiciary Committee, now investigating Barnard. With characteristic timidity, he 'really could not undertake to state the general opinion of

the N. Y. Bar as to Mr. Barnard,' & so was no t examined after all." In some glee Mr. Strong notes the condemnation of Barnard by the Legislative Committee by a vote of 33 to 2, and then proceeds: "Very good as far as it goes. But downright Bishop Latimer would have gone a

step farther--There lacks a fourth thing to make up the mess, which, so God help me, should be hangum tuum, a Tybrun tippet to take with him. ...Yea, and were it my Lord Chancellor himself, to Tybrun with him!' Latimer is right. Barnard's skeleton neatly hung on wires in a glass case, should 'point a moral & adorn' the New Court House."

 

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