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Published online by Cambridge University Press: 24 April 2015
It is a pleasure and an honor to be asked to contribute to a festschrift dedicated to that fountain of youth, energy, and excellence, John Noonan, who has been a close friend and a professional colleague for forty years. John has written about many of the legal topics that are closest to my own heart and I have chosen to include in this volume a piece that combines many of our joint interests: legal history, the Cardozo family, and judicial ethics. Judge Noonan has in fact alluded quite specifically in two of his own pieces to the career that figures in my contribution. My subject is Cardozo, not the twentieth-century Benjamin of high repute featured in Judge Noonan's Persons and Masks of the Law, but his father, the nineteenth-century Albert of low repute, whose career figures in Judge Noonan's exhaustive treatise on Bribes. The legal career and the approach of the nineteenth century Cardozo to law is an interesting and instructive prelude to the more common study of the contribution of the twentieth century Cardozo.
This article is an expansion of material that appears in Chapter 1 of my forthcoming biography of Justice Benjamin N. Cardozo. Permission to include this material has been graciously given by the Harvard University Press. Alan Stuart Schwartz, Richard Perlman, Lauren Sandler Zurier, Robert Kravitz, Susan Spotts, and Harry Sandick of the Harvard Law School classes of 1968, 1976, 1987, 1988, 1993, and 1994 respectively provided invaluable assistance in the preparation of this article.
1. Noonan, John T., Persons and Masks of the Law (Farrar, Straus and Giroux, 1976)Google Scholar; Noonan, John T., Bribes (Macmillan Publishing Company, 1984)Google Scholar.
2. TTie ancestry of Albert Cardozo is discussed in greater detail in chapter one of my forthcoming biography of Benjamin Cardozo.
3. New York Times, Nov 9, 1885, at 5, col 5; 3 Universal Jewish Encyclopedia 38 (KTAV, 1926 ed)Google Scholar.
4. Doggett's New York City Directory 1848-49, at 79. This is probably the same Isaac Nunez Cardozo who was admitted to the Philadelphia bar in 1844. Morais, Henry S., The Jews of Philadelphia 412 (The Levy Type Company, 1894)Google Scholar.
5. New York Herald, Nov 9, 1885, at 10, col 3.
6. Brooks, James W., History of the Court of Common Pleas of the City and County of New York 90 (Published by Subscription, 1896)Google Scholar.
7. New York Times, Nov 9, 1885 at 5, col 5.
8. Two of Albert's brothers also married into prominent Sephardic families, one into the Seixas family and one into the Peixotto family. The information on Albert Cardozo in this paragraph is derived from NY Times at 5 (cited in note 7); Nathan, Edgar J. Jr., Benjamin N. Cardozo, 41 Am Jewish Year Book 25 (1939)Google Scholar; David, and de Sola Pool, Tamar, An Old Faith in the New World, passim (Columbia U Press, 1955)Google Scholar(hereinafter Pool, An Old Faith); Trow's New York City Directory 1856-92; Doggett's New York City Directory 1848-49, 1850-51; Rode's New York City Directory 1850-51; and Doggen & Rode's New York City Directory 1851-56.
9. Pool, , An Old Faith at 313, 504 (cited in note 8)Google Scholar.
10. Pennsylvania Packet, June 3, 1783, reprinted in Wolf, Edwin & Whiteman, Maxwell, The History of the Jews of Philadelphia 109 (Jewish Publication Society of America, 1957)Google Scholar. See also id at 100, 115, 116, 129, 155-56, 173, 422.
11. New York Directory 1786, at 44.
12. Pool, , An Old Faith at 503 (cited in note 8)Google Scholar. Simon Nathan also went through some difficult financial times, particularly when he was unable to collect £ 323,000 that he had loaned Virginia during the Revolution. Wolf, & Whiteman, , The History of the Jews of Philadelphia at 173 (cited in note 10)Google Scholar. Wolff, Frances Nathan, Four Generations 2-4 (1939)Google Scholar.
13. Based on unpublished family letters, N. Taylor Phillips, a collateral descendant, states that Grace Seixas Nathan was a remarkable woman, well versed in politics, finance, and commercial affairs, whose intellect was far greater than that of her husband. Phillips, N. Taylor, The Levy and Seixas Families, 4 Proc Am Jewish Hist Soc 189, 212 (1896)Google Scholar. See also Wolff, , Four Generations at 4–5 (cited in note 12)Google Scholar.
14. de Sola Pool, David, Portraits Etched in Stone 344–375 (Columbia U Press, 1952)Google Scholar.
15. Pool, , An Old Faith at 242, 244, 318 and 503 (cited in note 8)Google Scholar; Eames, Francis L., The New York Stock Exchange 24 (Greenwood, , Repro. ed, 1968)Google Scholar.
16. Pool, , An Old Faith at 178–182 (cited in note 8)Google Scholar.
17. See Nevins, Allan and Thomas, Milton H., eds, 3 The Diary of George Templeton Strong 363, entry of 10 13, 1863Google Scholar, (hereinafter Diary of George Templeton Strong) (U of Washington Press, 1952)Google Scholar.
18. Strong was the father of the well-known lawyer, George Templeton Strong, whose diaries provide much of the primary source material for study of the profession and various aspects of life in New York City in the middle of the nineteenth century. Jonathan also had professional and social contacts with the diarist. See 2 Diary of George Templeton Strong at 44–45 (entry of 04 29, 1851) (cited in note 17)Google Scholar; 3 Id at 262 (entry of Oct 3, 1862). (The reference here to taking his children out in “Nathan's sail boat” at Newport may be a reference to Jonathan Nathan). The diarist certainly did not like many new immigrant groups, especially the Jews and the Irish. See text at note 107.
19. Pool, , An Old Faith at 318 (cited in note 8)Google Scholar.
20. See id at 393; Grinstein, Hyman, The Rise of the Jewish Community of New York 1654-1860 138, 149, 153, 158, 169, 188, 552, and 556 (Jewish Publication Society of America, 1945)Google Scholar.
21. Trow's New York City Directory 1847-48.
22. Brown, Henry C., Brownstone Fronts and Saratoga Trunks 359,360 (E.P. Dutton & Co., 1935)Google Scholar.
23. See also the descriptions by Francis Nathan Wolff, Benjamin Nathan's daughter, of the various social relations she had in her childhood with non-Jewish society in New York. Wolff, , Four Generations at 10-12, 16, 21, 28, 31, and 36 (cited in note 12)Google Scholar.
24. See Lewis, R.W.B., Edith Wharton 3–61 (Harper & Row, 1975)Google Scholar.
25. Pool, , An Old Faith at 390–391 (cited in note 8)Google Scholar.
26. NY Herald, May 18, 1855, at 1, col 3.
27. See Trow's New York City Directory 1855-56, at 138; id 1857-58 at 136; id 1861-62 at 139; New York City Directory 1859 at 133; id 1859-1860 at 139; id 1860-61 at 140. This was an area that was in the process of becoming one of the more fashionable in the city although it was then on the edge of the “country” and was the end of the line for business and for stage coaches. Wolff, , Four Generations at 7 (cited in note 12)Google Scholar. During the 1860s and 1870s, as the city became urbanized, it became the world of brownstone houses, each with its own front stoop, with substantial development as far north as Central Park. Diagonally across the street from the Cardozo house, on the northeast corner of Fifth Avenue, a large mansarded brownstone was built in 1868, and in 1881 it became the home of Jay Gould. The seven-story Windsor Hotel, the Plaza of its day, was built in 1876 on the east side of Fifth Avenue between 46th and 47th Streets. Mayer, Grace M., Once Upon a City 24 (Macmillan, 1958)Google Scholar.
28. 7 Abb Pr 225 (1855).
29. Jones v Palmer, 1 Abb Pr 442 (1855).
30. Belknap v McIntyre, 2 Abb Pr 366 (1855).
31. Clayton v Yarrington (Supr Ct Term 1858), unreported, but described extensively in Bank of Silver Creek v Browning, 16 Abb Pr 272, 273 (Supr Ct 1858).
32. Harriott v Wells, 9 Bosworth Rep 631 (Supr Ct 1862).
33. Merritt v Earle, 31 Barbour's Rep 38 (Supr Ct 1859).
34. 9 Abb Pr 79 (1859).
35. 16 Abb Pr 314 (1863).
36. 6 Bosworth 113 (Supr Ct 1860).
37. Charges Against Justice Albert Cardozo and Testimony Thereunder 854–855 (J. Pol-hemus, 1872)Google Scholar (hereinafter Charges and Testimony) (Testimony of Terrence Farley). During the Civil War, Pierrepont was a Unionist, who worked actively against the Tweed Ring. He was urged upon President Grant as a replacement to Justice Nelson in 1872 when Ward Hunt was appointed to the Supreme Court of the United States. Pierrepont later became Attorney-General under President Grant. McAdam, Davidet al, eds, Bench and Bar of New York (1897)Google Scholar; Fairman, Charles, 1 History of The Supreme Court of the United States, Reconstruction and Reunion 516, 534, and 1473 (Macmillan, 1971)Google Scholar; Hershkowitz, Leo, Tweed's New York 123 (Anchor Press, 1977)Google Scholar.
38. Charges and Testimony at 855-858 (Testimony of Farley) (cited in note 37). See Valentine, David T., Manual of the Corporation of the City of New York, 257 (The Society of Iconophiles, 1858)Google Scholar.
39. Wingate, Charles F., An Episode in Municipal Government, N Am Rev, 359, 385 (1874)Google Scholar.
40. Hershkowitz, , Tweed's New York at 70 (cited in note 37)Google Scholar. Tweed did not become a member until the month before even though he had previously been elected to office with Tammany support and had even been a member of the Democratic Republican General Committee. Id at 62.
41. The Tammany Society began as a national non-political fraternal organization but later added a political aspect to its activities. Membership in the “General Committee” and in the “Tammany Society” were not synonymous as, many persons who were neither political nor Democrats belonged to the Society. The relationship between the “General Committee,” or “Tammany Hall,” and the “Tammany Society” is described in Mushkat, Jerome, Tammany: The Evolution of a Political Machine, 1789–1865, at 1–2 (Syracuse U Press, 1971)Google Scholar (hereinafter Mushkat, Tammany). This book is a lively account of New York City Democratic politics in the nineteenth century up to the end of the Civil War and is essential for anyone trying to unravel the shifting alliances that characterized Democratic politics in that period. It is the Who's Who in Politics for anyone who wishes to know who was on whose team when. Further elucidation is contained in a second book. Jerome Mushkat, , The Reconstruction of the New York Democracy, 1861–1874 (Fairleigh Dickinson U Press, 1981)Google Scholar (hereinafter Mushkat, Reconstruction).
Tammany Hall was not a monolithic organization at any time in this period. It harbored a bewildering variety of individuals and factions—aristocrats and immigrants, reformers and spoilsmen, and conservatives, moderates and radicals. The struggle for leadership of Tammany Hall was constant, and factions and individuals gained and lost power with great rapidity. Mushkat, , Tammany at 208–363 (cited in note 41)Google Scholar; Hershkowitz, , Tweed's New York at 49–96 (cited in note 37)Google Scholar.
42. On the career of Wood, see Pleasants, Samuel, Fernando Wood of New York (Columbia U Press, 1948)Google Scholar; Mushkat, , Tammany at 216Google Scholar and following, especially 248-363 (cited in note 41); and Mushkat, Reconstruction (cited in note 41), passim; see also Flick, Alexander C., ed, Postwar Problems and Political Reformers in 7 History of the State of New York 139–144 (Columbia U Press 1935)Google Scholar; Alexander, De Alva Stanwood, 2 Political History of the State of New York 249–258 (Holt and Company, 1906)Google Scholar; Nichols, Roy F., Disruption of American Democracy 84, 207–209, 257–259 (Macmillan, 1948)Google Scholar; and Gover, William C., The Tammany Hall Democracy 47 (M.B. Brown, 1875)Google Scholar.
43. The early report in the New York Leader, the paper with the closest Tammany connection, was that Tammany Hall was ready to renominate Bosworth and Hilton. N Y Leader, Oct 3, 1863 at 4, col 2. The next issue of that paper noted that Judge Bosworth was a good judge and a learned and upright man. However, according to the paper, his friends were assuming that he was going to be opposed and were making personal attacks on the supposed opposition. Judge Hilton and his friends were reported to be pursuing the same course. Id Oct 10, 1863, at 4, col 3. Within a few days after those comments appeared, the Tammany-Mozart negotiating committee decided not to renominate either judge.
44. Wingate, Charles F., An Episode in Municipal Government, 114 N Am Rev 359, 385 (1874)Google Scholar; Alexander, , 3 Political History of the State of New York at 107, 176,268 (cited in note 42)Google Scholar; Charges and Testimony at 855 (testimony of Terrence Farley) (cited in note 37); N Y Times, Oct 9, 1863 at 8, col 3; id Oct 13, 1863 at 5, col 2; id Oct 14, 1863, at 5, col 1; id Oct 16, 1863 at 2, col 3; N Y Daily Tribune, Oct 5, 1863, at 4, col 6; Pleasants, Fernando Wood of New York at 133-136, 148-150 (cited in note 42). Earlier reports that Tammany would make the Common Pleas nomination and Mozart the Supreme Court nomination turned out to be inaccurate. Compare The World, Oct 15, 1863, at 1, col 5 and The Daily Tribune, Oct 13, 1863, at 4, col 3 with The World, Oct 16, 1863, at 4, col 6 and N Y Times, Oct 13, 1863 at 5, col 2.
45. The World, Sept 7, 1863, at 4, col 6.
46. New York Leader, Oct 17, 1863, at 4, col 5.
47. Gover, , The Tammany Hall Democracy at 49 (cited in note 42)Google Scholar; Mushkat, , Tammany at 353–354 (cited in note 41)Google Scholar; Mushkat, , Reconstruction at 42 (cited in note 41)Google Scholar.
48. See The Herald, Oct 24, 1863, at 4, col 6. The World, a Democratic newspaper, supported many of the Tammany-Mozart candidates but attacked Tammany and Mozart bitterly for denying renomination to Bosworth and Hilton. The World, Oct 27, 1863, at 4, col 2. At the same time, while supporting Hilton, it reprinted and joined in some words of praise for Cardozo that appeared in the New York Times. Id, Oct 29, 1863, at 4, col 5 and see note 41. See The Daily Tribute, October 24, 1863 at 6, col 2, for the view that the dumping of Bosworth and Hilton and the appointment of Cardozo was achieved by the “City Railroad” interest lobby.
49. The World, Oct 31, 1863, at 8, col 1.
50. The Judiciary of New York City, 107 N Am Rev 148,154 (1867)Google Scholar. The author of the article doubtless had in mind the replacement of Judge Bosworth by Judge McCunn in the Supreme Court, and unless the author entertained the thought that Mayor Wood already had a “friend” on the Court of Common Pleas, which seems highly unlikely because of the composition of the court, the second reference was probably to Albert Cardozo.
Charles Francis Adams thereafter wrote that the article had been attributed to Thomas G. Shearman, David Dudley Field's partner, without naming his source. Adams, Charles F. Jr., A Chapter of Erie, 109 No Am Rev 30 (1869)Google Scholar, reprinted in Adams, Charles F. Jr. and Adams, Henry, Chapters of Erie 1–100 (Great Seal Books, 1956)Google Scholar. See id at 2, note 1. It is doubtless the article to which Judge Barnard referred during a hearing in one of the Erie cases when he threatened to investigate the writing of an article in the North American Review by a clerk in Field's office. See id at 39.
George Martin, points out that Shearman never denied that he had written the piece and there were no reasons internal to the article to suggest that he had not. Martin, George, Causes and Conflict: The Centennial History of the Association of the Bar of the City of New York 386 (Houghton Mifflin, 1970)Google Scholar (hereinafter Martin, Causes and Conflict). However, when Shearman testified at the legislative investigation of Cardozo about his own conduct in the litigation following Gould's Black Friday effort to establish a corner in gold, he was so vague about his knowledge of the Tammany Ring and its influences on judges that this may cast some doubt upon Adams’ identification. On the other hand, Shearman might have been more cautious about making charges in an impeachment hearing than about making more general accusatory allegations in a periodical. He might also have been worried about challenge to his own conduct. See Charges and Testimony at 283 (cited in note 37), and see discussion of Shearman's role in the Gold Conspiracy cases, following text at notes 140-148.
51. See The Herald, Oct 3, 1863, at 10, col 3; The Daily Tribune, Oct 5, 1863, at 4, col 6; and The World, Oct 29, 1863, at 4, cols 4-5, (quoting a New York Times piece of Oct 24, 1863, to the effect that as compared to Hilton, Cardozo had “no claim whatever” to the position “apart from his political desserts.”)
52. N Y Daily Tribune, Oct 21, 1863, at 18, col 2; id Oct 22, 1863, at 4, col 6.
53. See The Herald, Oct 3, 1863, at 10, col 3; The Daily Tribune, Oct 5, 1863, at 4, col 6; Mushkat, , Reconstruction at 37–54 (cited in note 41)Google Scholar.
54. N Y Times, Oct 25, 1863, at 4, col 6. See text at note 40 for a description of Pierrepont's career.
55. N Y Times, Oct 26, 1863, at 4, col 4; id, Oct 28, 1863 at 4, cols 2 and 3; and id Sept 7, 1871, at 4, col 3. See also N Y Leader, Oct 24, 1863, at 4, col 6.
56. See N Y Daily Tribune, Oct 24, 1863, at 4, col 6. The relations between the Cardozo-Nathan families and the Hiltons contained further ironies. The Grand Union Hotel in Saratoga, which barred Jews in the 1880s, was controlled at that time by Judge Hilton. Henry Morgenthau, Sr., who was a lawyer in New York before becoming ambassador to Turkey, believed that the Grand Union's action caused a decline in patronage that helped precipitate the losses that forced the sale of Hilton, Hughes & Co. (owned by Judge Hilton), successor to the famous department store, A.T. Stewart & Co. See Morgenthau, Henry, All in a Life-Time 38 (Doubleday, Page & Company, 1922)Google Scholar; see also Wolff, , Four Generations at 221Google Scholar (cited in note 12) for a report by a Nathan family member that she closed all her accounts in the department store because of the hotel's exclusionary policy.
57. Brooks, James W., History of The Court of Common Pleas 32 (Published by Subscription, 1896)Google Scholar. Daly, Charles P., Historical Sketch of the Judicial Tribunals of New York from 1623 to 1846, passim (J.W. American, 1855)Google Scholar.
58. See Strong, Theron, Landmarks of a Lawyer's Lifetime 76–77 (Dodd, Mead and Company, 1914)Google Scholar for a good description. See also McAdam, , et al, eds, Bench and Bar at 267 (cited in note 37)Google Scholar; 4 Diary of George Templeton Strong at 519 (cited in note 17)Google Scholar; but see id at 202. He and Judge Daly married sisters.
59. Judge Daly was one of the most interesting New York judges of the 19th century. Son of Irish immigrant parents, his marriage to Maria Lydig connected him with the Lydigs and Suydams, two families with important social and economic ties in New York City. An early Tammany supporter, he was a Union Democrat in the Civil War and subsequently a supporter of the Tilden-Cleveland wing of the New York Democratic Party. Besides his political and legal interests, Daly was President of the American Geographical Society for 35 years and an author of many works, including a history of Jewish settlement in North America, The Settlement of Jews in North America (P. Cowen, 1893). See Hammond, Harold E., A Commoner's Judge—The Life and Times of Charles P. Daly 133 (Christopher Publishing House, 1954)Google Scholar. Judge Daly sat in the Court of Common Pleas from 1844 until his retirement in 1884 and was chief of that court as First Justice, later called Chief Justice, from 1859 until 1885. He had a considerable reputation for ability and especially for integrity, which is all the more surprising in view of the considerable behind-the-scenes dabbling that he did in politics, both at the local and the national level, especially in matters of patronage. Id at 139-140, 293.
60. Hammond, Harold, ed, Diary of a Union Lady, 1861-1865, 334, 342 (Funk & Wagnalls, 1962)Google Scholar.
61. Tammany Society, Annual Celebration in Honor of the 88th Anniversary of American Independence on July 4, 1864, at 4 (New York, 1864)Google Scholar.
62. Opinion not reported officially but printed in full in N Y Times, June 22, 1866, at 8, col 1.
63. Wynehamer v People, 12 N Y 378 (1856).
64. See the line of cases from the Slaughterhouse Cases, 16 Wall 36 (1873)Google Scholar through Lochner v New York, 198 US 45 (1905) to West Coast Hotel Co. v Parrish, 300 US 379 (1937). After 1937 the focus shifted from economic legislation to civil liberties issues.
65. N Y Times, April 11, 1866, at 4, col 2 and April 27, 1866, at 4, col 7.
66. Id June 23, 1866, at 4, col 5.
67. Id.
68. Judges Lott and Gilbert had by that time upheld the statute. Id July 17, 1866, at 2, col 3.
69. Letter from Albert Cardozo to John R. Brady, July 26, 1866, 1866 Box, Papers of Charles P. Daly, New York Public Library. The political sensitivity of the prohibition issue had already been shown by the support given to Mayor Wood by the German community after his astute handling of the issue of enforcement of the dry law of 1855 before it was ultimately held unconstitutional. See also Breen, Matthew P., Thirty Years of New York Politics 107–112 (Published by the author 1899)Google Scholar and Mushkat, , Reconstruction at 92–94Google Scholar (cited in note 41) on some of the political aspects of the 1866 law.
70. See letter of Justice Miller of the United States Supreme Court to his brother-in-law, Jan 13, 1878, telling him in advance that he had lost a recently argued case, reprinted in Fairman, Charles, Mr. Justice Miller and the Supreme Court 231 (Harvard U Press, 1939)Google Scholar; see also letter from Joseph Story to Professor Simon Greenleaf, Feb 11, 1837, giving him advance note of his victory in The Charles River Bridge Case, 11 Pet 420 (1837). Story, William W., ed, 2 Life and Letters of Joseph Story, 267–68 (1851)Google Scholar.
71. N Y Times, Sept 5, 1866, at 2, col 6 and Sept 7, 1866, at 3, col 1.
72. Board of Excise v Barrie, 34 N Y 657 (CL. Little and J. Brown, 1866).
73. But see Charges and Testimony, (testimony of Shearman) (cited in note 37).
74. Davenport, John, Election Frauds of New York City and Their Prevention, 91, 94 (Published by the author, 1881)Google Scholar.
75. George Templeton Strong described Leonard, Judge as a “Tenth-rate groggy attorney.” 3 The Diary of George Templeton Strong at 28 (entry of 05 20,1860) (cited in note 17)Google Scholar.
76. The World, Oct 2, 1867, at 1, col 3.
77. Id, Oct 12, 1867, at 1, col 2; The Herald, Oct 12, 1867, at 8, col 3.
78. Adams, , Chapters of Erie at 82 (cited in note 50)Google Scholar.
79. See N Y Herald, Oct 18, 1867, at 7, col 5; id, Oct 20, 1867, at 10, col 2; id, Oct 27, 1867, at 9, col 3.
80. See Breen, , Thirty Years of New York Politics at 121 (cited in note 69)Google Scholar.
81. Adams, , A Chapter of Erie at 83 (cited in note 50)Google Scholar. As with most assertions of fact in this popular, highly readable essay, Adams gives no source for the quotation. Wood's purported nominating speech is also quoted in virtually identical, although somewhat more extensive, form in The Ermine in the Ring, Putnam's Magazine, Dec, 1868, supp at 13.
82. N Y Times, Oct 27, 1867, at 5, col 2; The World, Oct 11, 1867, at 1, col 4; id Oct 18, 1867, at 8, col 3; id Oct 19, 1867, at 5, col 3.
83. The World, Oct 19, 1867, p 4, col 4.
The full text of the editorial deserves to be rescued from the yellowed remains of the archives:
One of the marked characteristics of the present age is the part taken by the people in the formation of public sentiment, and the determination of public questions. We are ceasing to have public men as acknowledged leaders; great progressive ideas arise from, not individuals, but the people at large, and are propelled by them to their practical conclusions. A generation or two ago, in this country and in England, thought and action were recognized as the work of a few men, eminent above all their fellows, and their names and actions fill up the records of history; now, under the results of education, the railroad, telegraph and the press, the people do these things for themselves. Public discussions and determinations are simultaneous over a whole continent, and the heart of a nation beats and its head thinks as one.
In this precise line a change is working in our judicial system. The law is ceasing to be created by the few men who hold life-long positions as judges. The determination of legal principles is not left to a few to whom all learning is attributed, as it was in the days of ELDON, or MANSFIELD, or WALWORTH. But the whole body of the bar, working with energy and intelligence upon the law, keeping time with the progress of the age, by exhaustive discussions of fundamental topics, and by prompt legislation to adjust old principles to new questions, are producing the best possible system of law. Our judges are no longer the sort of men whom RUFUS CHOATE likened to Brahms, “because we know they are ugly, but feel that they are great”; but are taken here and there from the bar, and in a few years return to it. There arises thus a harmony in the entire profession; more energy and more learning is brought into use, and better progress in the science of the law is made. The lawyers work harder upon their cases, and the judges are less arbitrary and more industrious in their decisions.
It is in this view of the case that the nomination of ALBERT CARDOZO to the bench of the Supreme Court is worthy [of] the public support. In addition to the qualifications of purity of purpose and integrity of character, a judge now must possess an acute and penetrating mind, with broad learning and sound and correct method. He is thus enabled to comprehend, on the argument before him, the precise facts of the case he is hearing and their legitimate bearing, and to weigh the reasons urged upon him. The judge who is thus capable of being informed by counsel can be prompt and clear in his decisions, and do better justice to the case he decides than if he held the papers with a confused idea of the points presented, and took them up again to examine and decide after he had forgotten what he had heard.
A judge now must also possess a sympathy with the active members of the bar around him, as co-operators toward the common end of doing justice to the litigants, and advancing the progress of the science to which their labors are given. It is this that enables the judge to take at the start every new idea, and saves him from a blind adherence to obsolete rules, and to principles that have lost their application; rather [sic, i.e., and] from a confused recollection of what in his youth he supposed such rules and principles to be. There is no more delicate and difficult task than in adjusting old principles to the new cases, presented by the rapid transitions of the business of men. …
Under our present system and the influence pointed out, we have better judges and a better growth of the law than in any preceding age; and it is entirely in accordance with the public good to commit our interests to the class of good judges of whom the one now presented to the public is a brilliant example.
84. The World, Nov 5, 1867, at 5, col 3.
85. Mayor of New York v Wood, 3 Abb Pr (N.S.) 467 (Supr Ct 1868).
86. See The Ermine in the Ring, Putnam's Magazine (cited in note 81); Pleasants, , Fernando Wood of New York at 172–175 (cited in note 42)Google Scholar.
87. Hershkowitz, , Tweed's New York at 111–148 (cited in note 37)Google Scholar. See also Frank J. Goodnow, “The Tweed Ring in New York City,” which is Chapter 88 of Bryce, James, 3 The American Commonwealth 177 (Macmillan 1st ed, 1888)Google Scholar. He described the profits obtained by the Tweed Ring from the widening of a portion of Broadway. A key element was said to be the success of the Ring in having Cardozo ignore the usual practice in appointing commissioners to manage the job and appointing three persons amenable to their will. Id at 188. This chapter was withdrawn from later editions of the work.
88. See Tammany Society at 4 (cited in note 61); Horton, , Earlier History, in Proceedings of Tammany Society for July 4, 1867 at 138Google Scholar.
89. Mushkat, , Tammany at 211 (cited in note 41)Google Scholar; Mushkat, , Reconstruction at 190 (cited in note 41)Google Scholar; Hammond, , A Commoner's Judge at 215 (cited in note 59)Google Scholar.
90. Hammond, , Diary of a Union Lady, 1861-1865 at 334Google Scholar (cited in note 60)(entry of Jan 19, 1865). Judge Daly was the likely source for that entry in her diary.
91. See letter of Albert Cardozo to Judge John R. Brady, July 28, 1866, referring to his wife's health in general and nervous anxiety in particular as the reason for not returning from Long Branch to New York to meet with them to confer about the handling of the important Excise Law case. Daly Papers, New York Public Library. Author interview with Aline Goldstone, June 11, 1962. Aline Goldstone, who published poetry under the name of May Lewis, was the great niece of Benjamin Nathan.
92. Charges and Testimony at 678-679 (cited in note 38) (Testimony of Gratz Nathan). See also Wingate, , An Episode in Municipal Government at 395–396 (cited in note 44)Google Scholar.
93. See Charges and Testimony at 294 (cited in note 37) (Testimony of William C. Barrett); id at 386 (Testimony of Francis Bixby).
94. Breen, , Thirty Years of New York Politics at 159–161 (cited in note 69)Google Scholar.
95. See Bowen, Croswell, The Elegant Oakey at 66 (Oxford U Press, 1956)Google Scholar(quoting an article in the New York Herald, Nov 28, 1869, describing “Gus D. Cardozo, a brother of the Judge and gentleman par excellence of all clerks.”) See also Townsend, John D., New York in Bondage at 41 (1901)Google Scholar.
96. As discussed earlier, Charles P. Daly, Cardozo's colleague on the Court of Common Pleas, enjoyed a very high reputation despite continued political activity on the bench. (See note 59).
97. Charges and Testimony at 196, 297, 659-660, 715-716 and 859-860 (cited in note 37)(testimony of Richard Beamish, William C. Barrett, Gratz Nathan, and Peter Wimmer).
98. See text at notes 139-147.
99. Adams, , A Chapter of Erie at 82–83 (cited in note 50)Google Scholar.
The next year Henry Adams, in The New York Gold Conspiracy, an article in the Westminster Review, continued the characterization: “the gossip of Wall Street insists that (Field) has a silken halter around the neck of Judge Barnard and a hempen one around that of Cardozo.” 94 Westminster Rev 411, 418 (Oct 1870), reprinted in Adams, Charles F. Jr., and Adams, Henry, Chapters of Erie 101, 111 (Great Seal Books, 1956)Google Scholar. Field heatedly denied the allegation in a letter to the Westminster Review. 95 Westminster Rev 581 (April 1871). His son and partner, Dudley Field, repeated the denial in sworn testimony, and his partner, Thomas Shearman, also testified that there was no intimacy between him and Cardozo and that on the contrary he “had reason to suppose” that Cardozo did not like him. Charges and Testimony, at 93, 253 (cited in note 37) (testimony of Field and Shearman). And well he might suppose so if he thought Cardozo had read that he was the author of the article on the New York judiciary in the North American Review that has been discussed previously (cited in note 50). Henry Adams did not produce any convincing evidence about a direct connection between Field and Cardozo or Barnard. He could have made a more convincing statement by limiting himself to a connection between some of Field's clients and Cardozo and Barnard via Tammany Hall.
100. In 1859, Strong characterized the lawyers he saw at a session of the Supreme Court, Special Term as “a mob of low-bred, illiterate, tenth-rate attorneys,” most of whom had no claims to the conventional title of “gentlemen.” 2 The Diary of George Templeton Strong at 478Google Scholar (entry of Dec 19, 1859) (cited in note 17). Later he would support an admission test to Columbia Law School—a college diploma or a test including Latin—to “keep out the little scrubs (German Jew boys mostly) whom the School now promotes from Avenue B to be ‘gentlemen of the bar.’ “ Id Vol 4 at 544 (entry of Dec 1, 1874).
101. Id Vol 4 at 236 (entry of Dec 19, 1868).
102. Id Vol 4 at 273 (entry of Feb 2, 1870). Strong does not indicate that he knew that Gratz Nathan was the son of Jonathan Nathan, his father's “favorite law student.” See text at note 18.
103. Id Vol 4 at 275 (Feb 8, 1870). For some brief references to instructions given by Cardozo in ordinary negligence cases, see Bergstrom, Randolph E., Courting Danger, 70, 72, 120-121,123–124 (Cornell U Press, 1992)Google Scholar. It would appear that his instructions sometimes favored plaintiffs and sometimes favored defendants, but the number of available instructions is too small for generalization.
104. See text at notes 152-154 and following.
105. Charges and Testimony at 286-87, 689-92, 830, 834 (cited in note 37).
106. Id at 830-35.
107. Id at 770-881. Judge Ingraham, for example, in the same period made 203 references to his son, David P. Ingraham, Jr., and 19 to William P. Tweed, Jr.
108. Meyer, Annie Nathan, It's Been Fun 84 (Schuman, 1951)Google Scholar.
109. N Y Times, Nov 9, 1885, at 5, col 5.
110. Wingate, , An Epsiode in Municipal Government at 395 (cited in note 44)Google Scholar.
111. Callow, Alexander B. Jr., The Tweed Ring 234 (Oxford U Press, 1966)Google Scholar; see also Gover, , The Tammany Hall Democracy at 55–56Google Scholar; (cited in note 42); Breen, , Thirty Years of New York Politics at 191–330 (cited in note 69)Google Scholar.
112. Cap and Gown Jan 26, 1870.
113. Pool, , An Old Faith at 391 (cited in note 8)Google Scholar; Nathan, Edgar Jr., Benjamin Nathan Cardozo, in American Jewish Yearbook 5700, at 25Google Scholar. Albert had also spoken prior to the dedication of the original hospital in 1855. See text at note 27.
114. Pool, , An Old Faith at 390–391 (cited in note 8)Google Scholar.
115. Wolff, , Four Generations at 6 (cited in note 12)Google Scholar.
116. See Charges and Testimony at 865 (cited in note 37) (testimony of Jacob Valentine, apparently an employee of Judge Cardozo); letter to Judge Brady, July 28, 1866 in Daly Papers, 1866 Box, New York Public Library.
117. Meyer, , It's Been Fun at 15 (cited in note 108)Google Scholar.
118. The details of the murder of Benjamin Nathan and various theories as to the identity of the criminal are set forth in Pearson, Edmund, Studies in Murder 123–162 (Garden City Pub Co, 1926)Google Scholar. His study does not mention Judge Cardozo and he apparently did not see Cardozo's efforts as having hampered the investigation.
Statements suggesting that the fact that Judge Cardozo was running for office interfered with the investigation are inaccurate. He took office in 1868 and his term ran for eight years. The constitutional provision prescribing an eight-year term was amended in 1869 to increase the term to 14 years, but the amendment applied only to terms of judges subsequently elected.
See also the description of the events by Nathan's daughter, Wolff, Frances Nathan, Four Generations at 38–41 (cited in note 12)Google Scholar.
119. Census for 1820 at 14 (1821)Google Scholar; Census for 1830 at 50-51,165 (1932)Google Scholar; Census for 1870 at 366, 380-391, 793 (1871)Google Scholar; Taft, Henry W., A Century and a Half at the New York Bar 6–7 (Private Printing, 1938)Google Scholar; Silliman, Benjamin, Personal Reminiscences of Sixty Years at the New York Bar in McAdam, , et al, eds, 1 Bench and Bar of New York, at 229 (cited in note 37)Google Scholar.
120. Some information exists in the form of collections of papers of a few lawyers. See Goebel, Juliuset al, eds, The Law Practice of Alexander Hamilton Vols 1-5 (Columbia U Press, 1964–1981)Google Scholar; Wroth, L. Kinvin & Zoebel, Hiller B., eds, Legal Papers of John Adams (Belknap Press of Harvard U Press, 1965)Google Scholar; Konefsky, Alfred S. & King, Andrew J., eds, The Papers of Daniel Webster Vols 1-2 (U Press of New England, 1982 and 1983)Google Scholar.
121. See Mayer, Jean P. and Lerner, Max, eds, Democracy in America 253–261 (Harper and Row, 1966)Google Scholar; Hurst, James Willard, The Growth of American Law (Little, Brown, 1950)Google Scholar; Taft, , A Century and a Half at the New York Bar at 8 (cited in note 119)Google Scholar; and in Baldwin, Joseph, The Flush Times of Alabama and Mississippi 225 (Americus Book Co., 1853)Google Scholar.
122. Hammack, David C., Power and Society: Greater New York at the Tum of the Century 130 (Russell Sage Foundation, 1982)Google Scholar.
123. Hurst, , The Growth of American Law at 3–19 (cited in note 121)Google Scholar.
124. Census for 1870 at 366, 380–391, 793 (1871)Google Scholar. The questionnaires employed by the Census Bureau changed greatly between 1820 and 1870. The data for 1820 and 1870 with respect to foreign-born residents are not comparable since the 1820 data give only foreign-born residents who were not naturalized while the 1870 data gives only all foreign-born residents.
125. See text at notes 101-103.
126. Field, David D., Study and Practice of the Law, Democratic Rev (04 1844)Google Scholar and reprinted in Sprague, A. and Jacobstein, J. Myron, eds, 1 Speeches, Arguments and Miscellaneous Papers of David Dudley Field at 484 (W.S. Hein, 1972)Google Scholar, reprint of 1890 ed.
127. See the articles attributed to Thomas G. Shearman (cited in note 50) and Adams and Adams, (cited in note 50); see also The Ermine in the Ring (cited in note 81).
128. N Y Times, Dec 16, 1869 (editorial), reprinted in Martin, , Causes and Conflict at 15 (cited in note 50)Google Scholar. See Nast, Thomas, Thomas Nast: Cartoons and Illustrations (Dorer Publications, 1974)Google Scholar and Berger, Meyer, The Story of the New York Tunes 35–53 (Simon and Schuster, 1951)Google Scholar.
129. Reprinted in Martin, , Causes and Conflict at 38 (cited in note 50)Google Scholar.
130. The Governor had power to appoint judges to the General Term, which was an intermediate appellate court hearing appeals from Trial Term and Special Term of the Supreme Court, from among the justices of the Supreme Court. The incident is described in Martin, , Causes and Conflict at 46 (cited in note 50)Google Scholar; he refers to a more detailed, but perhaps slightly fictionalized account in Breen, , Thirty Years of New York Politics at 323–35 (cited in note 69)Google Scholar.
131. See Martin, , Causes and Conflicts at 50–52 (cited in note 50)Google Scholar.
132. Martin, , Causes and Conflicts at 51-55, 61–67 (cited in note 50)Google Scholar; Callow, , The Tweed Ring at 234 (cited in note 111)Google Scholar.
133. See Martin, , Causes and Conflicts at 68–86 (cited in note 50)Google Scholar; Charges and Testimony at 15 (cited in note 37); Charges Against Judge J. H. McCunn and Testimony Thereunder, 198 (J. Polhemus, 1872)Google Scholar. These last two sources are separately paginated but bound together into one volume. The former is being cited as Charges and Testimony.
134. Charges and Testimony at 89 (cited in note 37).
135. See Nevins, Allan & Thomas, Milton H., eds, 4 Diary of George Templeton Strong at 287 (cited in note 17)Google Scholar. Judge Fullerton himself had recently been indicted for conspiracy to blackmail internal revenue collectors and distilleries, but had received a directed verdict of acquittal. See Swaine, Robert T., 1 The Cravath Firm, at 256–57 (Private Party at Ad Press, 1948)Google Scholar.
136. Nevins, Allan & Thomas, Milton H., eds, 4 Diary of George Templeton Strong at 413 (cited in note 17)Google Scholar. Strong, a partner of Bidwell, was very opposed to acceptance of the retainer and thought Bidwell should not have felt himself bound by the “strict rule that forbids declining a retainer, unless there be an actual prior retainer on the other side,” because only an investigation, not a judicial proceeding was involved. The “strict rule” to which Strong refers does not exist in this country today.
137. See Charges and Testimony at 1-14 (cited in note 37).
138. Referees were appointed by a court to perform certain judicial functions, from conducting a foreclosure sale of property to sitting as a “judge” in a complicated case and rendering a report on the facts and the law.
139. The story of the Gold Conspiracy is related in various places. The major primary source is the report of the House of Representatives Committee on Banking which took testimony from numerous participants immediately after the debacle. H R Rep No 31, 41st Cong, 2d Sess (1870). Henry Adams' The New York Gold Conspiracy (cited in note 99) is a lengthy, journalistic account. Pieces of the story appear in Earle, Walter K., Mr. Shearman and Mr. Sterling and How They Grew 71–78 (Yale U Press, 1963)Google Scholar and Swaine, , 1 The Cravath Firm at 261–63 (cited in note 135)Google Scholar. But the most complete discussion of the details of the litigation is contained in the testimony of Thomas G. Shearman, John Sterling, Dudley Field, and other lawyers who had been involved during the hearings on the charges against Cardozo. See also Charges and Testimony at 1-3 (cited in note 37) (preliminary statement to the charges against Albert Cardozo).
140. Charges and Testimony at 3-8 (cited in note 37).
141. A receivership proceeding involves the appointment by a court of a “receiver” who takes custody of the assets of a debtor in order to preserve them for, and divide them among, its creditors. The usual ground for such extraordinary action is the insolvency of a debtor, and application for the appointment is made by a creditor.
142. The firm exists today as one of the largest and most prominent firms in New York City, Shearman & Sterling. David Dudley Field was a center of controversy throughout his legal career as one of the leading advocates of law reform in the country for 40 years. In his own practice, however, Field used every weapon the law allowed and, his opponents asserted, many the law did not, on behalf of his clients. See Martin, , Causes & Conflicts at 55-60, 87–103 (cited in note 50)Google Scholar; Correspondence Between Samuel Bowles and David Dudley Field (1871); Stickney, Albert, The Lawyer and His Clients, 92 No Am Rev 392 (04 1871)Google Scholar; Adams & Adams, Chapters of Erie (cited in note 50).
143. Charges and Testimony at 207-208, 212, 219-220, 239-242 (cited in note 37) (testimony of Shearman and Sterling); see also id at 18 (affidavit of Charles J. Osborne).
144. See McAdam, , et al, eds, Legal Education in New York at 507–508 (cited in note 37)Google Scholar; Bowen, The Elegant Oakey (cited in note 95); Martin, , Causes and Conflict at 17 (cited in note 50)Google Scholar.
145. Special Term was the part of the court that heard equity, or nonjury matters, including injunctions and receiverships, as opposed to Trial Term, which heard jury matters.
146. Charges and Testimony at 231-32, 239-42, 252, 272-76 (cited in note 37).
147. At the same time a substitute receiver, who was cashier of another bank and knew something of banking, was appointed. The same order provided for payments to two other broker-creditors of the Bank who were thought to be acting for Jay Gould, but not to creditors generally, although the suit was in the nature of a suit to protect all creditors of the bank. Charges and Testimony at 55-56, 58-59 (exhibits) (cited in note 37). The Bank's officers later testified that the only reason they consented to the order was to obtain a substituted receiver of their own choice. Id at 287, 324-25. David Dudley Field, who was away when the papers were prepared, had some doubt about the propriety of that portion of the order setting the fees so high and putting the burden of his firm's fees on the Bank instead of on their client. He therefore would not let his firm sign the order for payment and for substitution of receivers, and another firm took over the representation of the plaintiffs. Id at 249-50, 256, 280-81 (testimony of Shearman).
148. Charges and Testimony at 265-66 (cited in note 37).
149. Quoted in Martin, , Causes and Conflicts at 97 (cited in note 50)Google Scholar; see note 128.
150. N Y Assembly Doc No 173, at 6 (1872).
151. See Charges and Testimony at 8-14 (cited in note 37) (Second, Third, and Fourth Charges).
152. See text at notes 103-108.
153. Charges and Testimony at 846 (cited in note 37).
154. Id at 692-715, 840-851.
155. Prior to completion of the Report, one of the association's counsel reported orally to the membership about the Committee's work and deliberations. See N Y Times, Apr 10, 1872, at 4, col 7.
156. N Y Assembly Doc No 173, at 6 (1872).
157. N Y Times, May 2, 1872, at 8, col 1.
158. Martin, , Causes and Conflicts at 74 (cited in note 50)Google Scholar; Breen, , Thirty Years of New York Politics at 398 (cited in note 69)Google Scholar.
159. Meyer, , It's Been Fun at 86 (cited in note 108)Google Scholar.
160. See discussion in text at notes 91-114; Wheeler, Everett P., Sixty Years of American Life 323–325 (E.P. Dutton & Co., 1917)Google Scholar. The Senate sat as a court of impeachment in Barnard's case, but followed a more informal procedure in McCunn's case. Martin, , Causes and Conflicts at 76–84 (cited in note 50)Google Scholar.
161. See Martin, , Causes and Conflicts at 128 (cited in note 50)Google Scholar; Nevins, & Thomas, , eds, 4 Diary of George Templeton Strong, at 549, 551Google Scholar (cited in note 17) (entries of Jan 23 and Feb 10, 1875).
162. N Y Times, Sept 6, 1872.
163. Note written by Judge Daly on a letter of Albert Cardozo to Judge Brady, July 28, 1866, in Daly Papers 1866 Box (cited in note 59). The note quite obviously must have been added by Judge Daly some time later, perhaps when he was putting his papers in order.
164. See New York City Directory 1872-1873, listing his office at 84 Nassau Street, and Wilson's New York Business Directory 1873, listing 258 Broadway.
165. N Y Times, Oct 9, 1872, at 8, col 4.
166. N Y Times, Nov 27, 1883, at 1, col 4 and May 26, 1884, at 4, col 3. Newcombe also served quite controversially as counsel to a legislative committee investigating the Public Works Department of New York City and handled a number of important criminal matters. Id Times, July 27, 1891, at 5, col 4. The description of his handling of a divorce case in von Wallhoffen v Newcombe and Leventritt, 10 Henn 277 (Gen Term 1st Dept 1877), a malpractice suit against him and another lawyer, suggests that he was not a careful, conscientious lawyer. In another divorce matter, the judge commented that it was “a mild form of description to say that the act of the lawyer [Newcombe] was a gross irregularity.” Times, May 26, 1884, at 4, col 3.
167. Trow's New York City Directory 1878, at 221, 1080Google Scholar.
168. Municipal Archives, City of New York, Death Certificate No 545480.
169. See, for example, Konefsky, & King, , eds, 2 The Papers of Daniel Webster at 306–325Google Scholar (cited in note 120) for a discussion of the ethics of Daniel Webster in his relationship to the Bank of the United States while a member of Congress.
170. See Hurst, , The Growth of American Law at 329–333, 366–375 (cited in note 121)Google Scholar; Stone, , The Public Influence of the Bar, 48 Harv L Rev 1, 8–10 (1934)CrossRefGoogle Scholar; and see note 87.
171. See, for example, the correspondence between David Dudley Field and his son Dudley Field on the one hand and Samuel Bowles, the editor of the Springfield Republican on the other (privately printed, 1871), copy in Harvard Law School Library, reprinted in Kaufman, Andrew, Problems in Professional Responsibility 249–266 (Little Brown, 1st ed, 1976)Google Scholar and discussed in Schudson, Michael, Public, Private, and Professional Lives, 21 Am J Leg Hist 191 (1977)CrossRefGoogle Scholar.
172. The Tweed Ring also caught up Judge Barnard, a descendant of old Yankee stock and Judge McCunn, a member of relatively recently arrived Irish family.
173. Transcript of Columbia Oral History Project interview with Charles C. Burlingham, 1949, at 9.