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
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
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: “It’s
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
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."
.