Chapter VIII Roscoe Conkling and Judge Folger—1867-1868

At the beginning of my fourth year at Albany, in 1867, came an election to the Senate of the United States. Of the two senators then representing the State, one, Edwin D. Morgan, had been governor, and combined the qualities of a merchant prince and of a shrewd politician; the other, Ira Harris, had been a highly respected judge, and was, from every point of view, a most worthy man: but unfortunately neither of these gentlemen seemed to exercise any adequate influence in solving the main questions then before Congress.

No more important subjects have ever come before that body than those which arose during the early years of the Civil War, and it was deeply felt throughout the State that neither of the senators fitly uttered its voice or exercised its influence.

Mr. Cornell, with whom I had then become intimate, was never censorious; rarely did he say anything in disapproval of any man; he was charitable in his judgments, and generally preferred to be silent rather than severe; but I remember that on his return from a stay in Washington, he said to me indignantly: "While at the Capitol I was ashamed of the State of New York: one great question after another came up; bills of the highest importance were presented and discussed by senators from Ohio, Vermont, Missouri, Indiana, Iowa, and the rest; but from New York never a word!"

The question now was, who should succeed Senator Harris? He naturally desired a second term, and it would have given me pleasure to support him, for he was an old and honored friend of my father and mother, they having been, in their early life, his neighbors and schoolmates, and their friendship having descended to me; but like others I was disappointed that Senator Harris had not taken a position more fitting. His main efforts seemed to be in the line of friendly acts for his constituents. In so far as these were done for soldiers in the army they were praiseworthy; though it was generally felt that while arising primarily from a natural feeling of benevolence, they were mainly devoted to securing a body of friends throughout the State, who would support him when the time should come for his re<e:>lection. Apparently with the same object, he was a most devoted supporter of New York office-seekers of all sorts. He had pleasing personal characteristics, but it was reported that Mr. Lincoln, referring to the senator’s persistency in pressing candidates for office, once said: "I never think of going to sleep now without first looking under my bed to see if Judge Harris is not there wanting something for somebody."

Another candidate was Judge Noah Davis, then of Lockport, also a man of high character, of excellent legal abilities, a good speaker, and one who, had he been elected, would have done honor to the State. But on looking about I discovered, as I thought, a better candidate. Judge Bailey, of Oneida County, had called my attention to the claims of Mr. Roscoe Conkling, then a member of Congress from the Oneida district, who had distinguished himself as an effective speaker, a successful lawyer, and an honest public servant. He had, to be sure, run foul of Mr. Blaine of Maine, and had received, in return for what Mr. Blaine considered a display of offensive manners, a very serious oratorical castigation; but he had just fought a good fight which had drawn the attention of the whole State to him. A coalition having been formed between the anti-war Democrats and a number of disaffected Republicans in his district to defeat his re<e:>lection to Congress, it had seemed likely to overwhelm him and drive him out of public life, and one thing seemed for a time likely to prove fatal to him:—the "New York Tribune," the great organ of the party, edited by Horace Greeley, gave him no effective support. But the reason was apparent later when it became known that Mr. Greeley was to be a candidate for the senatorship, and it was evidently felt that should Mr. Conkling triumph in such a struggle, he would be a very serious competitor. The young statesman had shown himself equal to the emergency. He had fought his battle without the aid of Mr. Greeley and the "Tribune," and won it, and, as a result, had begun to be thought of as a promising candidate for the United States senatorship. I had never spoken with him; had hardly seen him; but I had watched his course closely, and one thing especially wrought powerfully with me in his favor. The men who had opposed him were of the same sort with those who had opposed me, and as I was proud of their opposition, I felt that he had a right to be so. The whole force of Tammany henchmen and canal contractors throughout the State honored us both with their enmity.

It was arranged among Mr. Conkling’s supporters that, at the great caucus which was to decide the matter, Mr. Conkling’s name should be presented by the member of the assembly representing his district, Ellis Roberts, a man of eminent character and ability, who, having begun by taking high rank as a scholar at Yale, had become one of the foremost editors of the State, and had afterward distinguished himself not only in the State legislature, but in Congress, and as the head of the independent treasury in the city of New York. The next question was as to the speech seconding the nomination. It was proposed that Judge Folger should make it, but as he showed a curious diffidence in the matter, and preferred to preside over the caucus, the duty was tendered to me.

At the hour appointed the assembly hall of the old Capitol was full; floor and galleries were crowded to suffocation. The candidates were duly presented, and, among them, Mr. Conkling by Mr. Roberts. I delayed my speech somewhat. The general course of it had been thought out beforehand, but the phraseology and sequence of argument were left to the occasion. I felt deeply the importance of nominating Mr. Conkling, and when the moment came threw my heart into it. I was in full health and vigor, and soon felt that a very large part of the audience was with me. Presently I used the argument that the great State of New York, which had been so long silent in the highest councils of the Nation, demanded A VOICE. Instantly the vast majority of all present, in the galleries, in the lobbies, and on the floor, rose in quick response to the sentiment and cheered with all their might. There had been no such outburst in the whole course of the evening. Evidently this was the responsive chord, and having gone on with the main line of my argument, I at last closed with the same declaration in different form;—that our great Commonwealth,—the most important in the whole sisterhood of States,—which had been so long silent in the Senate, WISHED TO BE HEARD, and that, therefore, I seconded the nomination of Mr. Conkling. Immediately the whole house rose to this sentiment again and again, with even greater evidence of approval than before; the voting began and Mr. Conkling was finally nominated, if my memory is correct, by a majority of three.

The moment the vote was declared the whole assembly broke loose; the pressure being removed, there came a general effervescence of good feeling, and I suddenly found myself raised on the shoulders of stalwart men who stood near, and rapidly carried over the heads of the crowd, through many passages and corridors, my main anxiety being to protect my head so that my brains might not be knocked out against stairways and doorways; but presently, when fairly dazed and bewildered, I was borne into a room in the old Congress Hall Hotel, and deposited safely in the presence of a gentleman standing with his back to the fire, who at once extended his hand to me most cordially, and to whom I said, "God bless you, Senator Conkling. "A most hearty response followed, and so began my closer acquaintance with the new senator.

Mr. Conkling’s election followed as a thing of course, and throughout the State there was general approval.

During this session of 1867 I found myself involved in two rather curious struggles, and with no less a personage than my colleague, Judge Folger.

As to the first of these I had long felt, and still feel, that of all the weaknesses in our institutions, one of the most serious is our laxity in the administration of the criminal law. No other civilized country, save possibly the lower parts of Italy and Sicily, shows anything to approach the number of unpunished homicides, in proportion to the population, which are committed in sundry parts of our own country, and indeed in our country taken as a whole. In no country is the deterrent effect of punishment so vitiated by delay; in no country is so much facility given to chicanery, to futile appeals, and to every possible means of clearing men from the due penalty of high crime, and especially the crime of murder.

It was in view of this fact that, acting on the advice of an old and able judge whose experience in criminal practice had been very large, I introduced into the Senate a bill to improve the procedure in criminal cases. The judge just referred to had shown me the absurdities arising from the fact that testimony in regard to character, even in the case of professional criminals, was not allowed save in rebuttal. It was notorious that professional criminals charged with high crimes, especially in our large cities, frequently went free because, while the testimony to the particular crime was not absolutely overwhelming, testimony to their character as professional criminals, which, in connection with the facts established, would have been absolutely conclusive, could not be admitted. I therefore proposed that testimony as to character in any criminal case might be introduced by the prosecution if, after having been privately submitted to the judge, he should decide that the ends of justice would be furthered thereby.

The bill was referred to the Senate judiciary committee, of which Judge Folger was chairman. After it had lain there some weeks and the judge had rather curtly answered my questions as to when it would be reported, it became clear to me that the committee had no intention of reporting it at all, whereupon I introduced a resolution requesting them to report it, at the earliest day possible, for the consideration of the Senate, and this was passed in spite of the opposition of the committee. Many days then passed; no report was made, and I therefore introduced a resolution taking the bill out of the hands of the committee and bringing it directly before the committee of the whole. This was most earnestly resisted by Judge Folger and by his main associate on the committee, Henry Murphy of Brooklyn. On the other hand I had, to aid me, Judge Lowe, also a lawyer of high standing, and indeed all the lawyers in the body who were not upon the judiciary committee. The result was that my motion was successful; the bill was taken from the committee and immediately brought under discussion.

In reply to the adverse arguments of Judge Folger and Mr. Murphy, which were to the effect that my bill was an innovation upon the criminal law of the State, I pointed out the fact that evidence as to the character of the person charged with crime is often all-important; that in our daily life we act upon that fact as the simplest dictate of common sense; that if any senator present had his watch stolen from his room he would be very slow to charge the crime against the servant who was last seen in the room, even under very suspicious circumstances; but if he found that the servant had been discharged for theft from various places previously, this would be more important than any other circumstance. I showed how safeguards which had been devised in the middle ages to protect citizens from the feudal lord were now used to aid criminals in evading the law, and I ended by rather unjustly comparing Judge Folger to the great Lord Chancellor Eldon, of whom it was said that, despite his profound knowledge of the law, "no man ever did so much good as he prevented." The result was that the bill was passed by the Senate in spite of the judiciary committee.

During the continuance of the discussion Judge Folger had remained in his usual seat, but immediately after the passage of the bill he resumed his place as president of the Senate. He was evidently vexed, and in declaring the Senate adjourned he brought the gavel down with a sort of fling which caused it to fly out of his hand and fall in front of his desk on the floor. Fortunately it was after midnight and few saw it; but there was a general feeling of regret among us all that a man so highly respected should have so lost his temper. By common consent the whole matter was hushed; no mention of it, so far as I could learn, was made in the public press, and soon all seemed forgotten.

Unfortunately it was remembered, and in a quarter which brought upon Judge Folger one of the worst disappointments of his life.

For, in the course of the following summer, the Constitutional Convention of the State was to hold its session and its presidency was justly considered a great honor. Two candidates were named, one being Judge Folger and the other Mr. William A. Wheeler, then a member of Congress and afterward Vice-President of the United States. The result of the canvas by the friends of both these gentlemen seemed doubtful, when one morning there appeared in the "New York Tribune," the most powerful organ of the Republican party, one of Horace Greeley’s most trenchant articles. It dwelt on the importance of the convention in the history of the State, on the responsibility of its members, on the characteristics which should mark its presiding officer, and, as to this latter point, wound up pungently by saying that it would be best to have a president who, when he disagreed with members, did not throw his gavel at them. This shot took effect; it ran through the State; people asked the meaning of it; various exaggerated legends became current, one of them being that he had thrown the gavel at me personally;—and Mr. Wheeler became president of the convention.

But before the close of the session another matter had come up which cooled still more the relations between Judge Folger and myself. For many sessions, year after year, there had been before the legislature a bill for establishing a canal connecting the interior lake system of the State with Lake Ontario. This was known as the Sodus Canal Bill, and its main champion was a public-spirited man from Judge Folger’s own district. In favor of the canal various arguments were urged, one of them being that it would enable the United States, while keeping within its treaty obligations with Great Britain, to build ships on these smaller lakes, which, in case of need, could be passed through the canal into the great chain of lakes extending from Lake Ontario to Lake Superior. To this it was replied that such an evasion of the treaty was not especially creditable to those suggesting it, and that the main purpose of the bill really was to create a vast water power which should enure to the benefit of sundry gentlemen in Judge Folger’s district.

Up to this time Judge Folger seemed never to care much for the bill, and I had never made any especial effort against it; but when, just at the close of the session, certain constituents of mine upon the Oswego River had shown me that there was great danger in the proposed canal to the water supply through the counties of Onondaga and Oswego, I opposed the measure. Thereupon Judge Folger became more and more earnest in its favor, and it soon became evident that all his power would be used to pass it during the few remaining days of the session. By his influence it was pushed rapidly through all its earlier stages, and at last came up before the Senate. It seemed sure to pass within ten minutes, when I moved that the whole matter be referred to the approaching Constitutional Convention, which was to begin its sessions immediately after the adjournment of the legislature, and Judge Folger having spoken against this motion, I spoke in its favor and did what I have never done before in my life and probably shall never do again—spoke against time. There was no "previous question" in the Senate, no limitation as to the period during which a member could discuss any measure, and, as the youngest member in the body, I was in the full flush of youthful strength. I therefore announced my intention to present some three hundred arguments in favor of referring the whole matter to the State Constitutional Convention, those arguments being based upon the especial fitness of its three hundred members to decide the question, as shown by the personal character and life history of each and every one of them. I then went on with this series of biographies, beginning with that of Judge Folger himself, and paying him most heartily and cordially every tribute possible, including some of a humorous nature. Having given about half an hour to the judge, I then took up sundry other members and kept on through the entire morning. I had the floor and no one could dispossess me. The lieutenant-governor, in the chair, General Stewart Woodford, was perfectly just and fair, and although Judge Folger and Mr. Murphy used all their legal acuteness in devising some means of evading the rules, they were in every case declared by the lieutenant-governor to be out of order, and the floor was in every case reassigned to me. Meantime, the whole Senate, though anxious to adjourn, entered into the spirit of the matter, various members passing me up biographical notes on the members of the convention, some of them very comical, and presently the hall was crowded with members of the assembly as well as senators, all cheering me on. The reason for this was very simple. There had come to be a general understanding of the case, namely, that Judge Folger, by virtue of his great power and influence, was trying in the last hours of the session to force through a bill for the benefit of his district, and that I was simply doing my best to prevent an injustice. The result was that I went on hour after hour with my series of biographies, until at last Judge Folger himself sent me word that if I would desist and allow the legislature to adjourn he would make no further effort to carry the bill at that session. To this I instantly agreed; the bill was dropped for that session and for all sessions: so far as I can learn it has never reappeared.

Shortly after our final adjournment the Constitutional Convention came together. It was one of the best bodies of the kind ever assembled in any State, as a list of its members abundantly shows. There was much work for it, and most important of all was the reorganization of the highest judicial body in the State—the Court of Appeals—which had become hopelessly inadequate.

The two principal members of the convention from the city of New York were Horace Greeley, editor of the "Tribune," and William M. Evarts, afterward Attorney- General, United States senator, and Secretary of State of the United States. Mr. Greeley was at first all-powerful. As has already been seen, he had been able to prevent Judge Folger taking the presidency of the convention, and for a few days he had everything his own way. But he soon proved so erratic a leader that his influence was completely lost, and after a few sessions there was hardly any member with less real power to influence the judgments of his colleagues.

This was not for want of real ability in his speeches, for at various times I heard him make, for and against measures, arguments admirably pungent, forcible, and far-reaching, but there seemed to be a universal feeling that he was an unsafe guide.

Soon came a feature in his course which made matters worse. The members of the convention, many of them, were men in large business and very anxious to have a day or two each week for their own affairs. Moreover, during the first weeks of the session, while the main matters coming before the convention were still in the hands of committees, there was really not enough business ready for the convention to occupy it through all the days of the week, and consequently it adopted the plan, for the first weeks at least, of adjourning from Friday night till Tuesday morning. This vexed Mr. Greeley sorely. He insisted that the convention ought to keep at its business and finish it without any such weekly adjournments, and, as his arguments to this effect did not prevail in the convention, he began making them through the "Tribune" before the people of the State. Soon his arguments became acrid, and began undermining the convention at every point.

As to Mr. Greeley’s feeling regarding the weekly adjournment, one curious thing was reported: There was a member from New York of a literary turn for whom the great editor had done much in bringing his verses and other productions before the public—a certain Mr. Duganne; but it happened that, on one of the weekly motions to adjourn, Mr. Duganne had voted in the affirmative, and, as a result, Mr. Greeley, meeting him just afterward, upbraided him in a manner which filled the rural bystanders with consternation. It was well known to those best acquainted with the editor of the "Tribune" that, when excited, he at times indulged in the most ingenious and picturesque expletives, and some of Mr. Chauncey Depew’s best stories of that period pointed to this fact. On this occasion Mr. Greeley really outdid himself, and the result was that the country members, who up to that time had regarded him with awe as the representative of the highest possible morality in public and private life, were greatly dismayed, and in various parts of the room they were heard expressing their amazement, and saying to each other in awe-stricken tones: "Why! Greeley swears!"

Ere long Mr. Greeley was taking, almost daily in the "Tribune," steady ground against the doings of his colleagues. Lesser newspapers followed with no end of cheap and easy denunciation, and the result was that the convention became thoroughly, though unjustly, discredited throughout the State, and indeed throughout the country. A curious proof of this met me. Being at Cambridge, Massachusetts, I passed an evening with Governor Washburn, one of the most thoughtful and valuable public men of that period. In the course of our conversation he said: "Mr. White, it is really sad to hear of the doings at your Albany convention. I can remember your constitutional convention of 1846, and when I compare this convention with that, it grieves me." My answer was: "Governor Washburn, you are utterly mistaken: there has never been a constitutional convention in the State of New York, not even that you name, which has contained so many men of the highest ability and character as the one now in session, and none which has really done better work. I am not a member of the body and can say this in its behalf." At this he expressed his amazement, and pointed to the "Tribune" in confirmation of his own position. I then stated the case to him, and, I think, alleviated his distress.

But as the sessions of the convention drew to a close and the value of its work began to be clearly understood, Greeley’s nobler qualities, his real truthfulness and public spirit began to assert themselves, and more than once he showed practical shrewdness and insight. Going into convention one morning, I found the question under discussion to be the election of the secretary of state, attorney-general, and others of the governor’s cabinet, whose appointment under the older constitutions was wisely left to the governor, but who, for twenty years, had been elected by the people. There was a wide-spread feeling that the old system was wiser, and that the new had by no means justified itself; in fact, that by fastening on the governor the responsibility for his cabinet, the State is likely to secure better men than when their choice is left to the hurly-burly of intrigue and prejudice in a nominating convention.

The main argument made by those who opposed such a return to the old, better order of things was that the people would not like it and would be inclined to vote down the new constitution on account of it.

In reply to this, Mr. Greeley arose and made a most admirable short speech ending with these words, given in his rapid falsetto, with a sort of snap that made the whole seem like one word: "When-the-people-take-up-theirballots-they-want-to-see-who-is-to-be-governor: that’s-allthey-care-about: they-don’t-want-to-read-a-whole-chapterof-the-Bible-on-their-ballots."

Unfortunately, the majority dared not risk the popular ratification of the new constitution, and so this amendment was lost.

No doubt Mr. Greeley was mainly responsible for this condition of things; his impatience with the convention, as shown by his articles in the "Tribune," had been caught by the people of the State.

The long discussions were very irksome to him, and one day I mildly expostulated with him on account of some of his utterances against the much speaking of his colleagues, and said: "After all, Mr. Greeley, is n’t it a pretty good thing to have a lot of the best men in the State come together every twenty years and thoroughly discuss the whole constitution, to see what improvements can be made; and is not the familiarity with the constitution and interest in it thus aroused among the people at large worth all the fatigue arising from long speeches?" "Well, perhaps so," he said, but he immediately began to grumble and finally to storm in a comical way against some of his colleagues who, it must be confessed, were tiresome. Still he became interested more and more in the work, and as the new constitution emerged from the committees and public debates, he evidently saw that it was a great gain to the State, and now did his best through the "Tribune" to undo what he had been doing. He wrote editorials praising the work of the convention and urging that it be adopted. But all in vain: the unfavorable impression had been too widely and deeply made, and the result was that the new constitution, when submitted to the people, was ignominiously voted down, and the whole summer’s work of the convention went for nothing. Later, however, a portion of it was rescued and put into force through the agency of a "Constitutional Commission," a small body of first-rate men who sat at Albany, and whose main conclusions were finally adopted in the shape of amendments to the old constitution. There was, none the less, a wretched loss to the State.

During the summer of 1867 I was completely immersed in the duties of my new position at Cornell University; going through various institutions in New England and the Western States to note the workings of their technical departments; visiting Ithaca to consult with Mr. Cornell and to look over plans for buildings, and credentials for professorships, or, shut up in my own study at Syracuse, or in the cabins of Cayuga Lake steamers, drawing up schemes of university organization, so that my political life soon seemed ages behind me.

While on a visit to Harvard, I was invited by Agassiz to pass a day with him at Nahant in order to discuss methods and men. He entered into the matter very earnestly, agreed to give us an extended course of lectures, which he afterward did, and aided us in many ways. One remark of his surprised me. I had asked him to name men, and he had taken much pains to do so, when suddenly he turned to me abruptly and said: "Who is to be your professor of moral philosophy? That is by far the most important matter in your whole organization." It seemed strange that one who had been honored by the whole world as probably the foremost man in natural science then living, and who had been denounced by many exceedingly orthodox people as an enemy of religion, should take this view of the new faculty, but it showed how deeply and sincerely religious he was. I soon reassured him on the point he had raised, and then went on with the discussion of scientific men, methods, and equipments.

I was also asked by the poet Longfellow to pass a day with him at his beautiful Nahant cottage in order to discuss certain candidates and methods in literature. Nothing could be more delightful than his talk as we sat together on the veranda looking out over the sea, with the gilded dome of the State House, which he pointed out to me as "The Hub," in the dim distance. One question of his amused me much. We were discussing certain recent events in which Mr. Horace Greeley had played an important part, and after alluding to Mr. Greeley’s course during the War, he turned his eyes fully but mildly upon me and said slowly and solemnly: "Mr. White, don’t you think Mr. Greeley a very useless sort of man?" The question struck me at first as exceedingly comical; for, I thought, "Imagine Mr. Greeley, who thinks himself, and with reason, a useful man if there ever was one, and whose whole life has been devoted to what he has thought of the highest and most direct use to his fellow-men, hearing this question put in a dreamy way by a poet,—a writer of verse,—probably the last man in America whom Mr. Greeley would consider `useful.’ " But my old admiration for the great editor came back in a strong tide, and if I was ever eloquent it was in showing Mr. Longfellow how great, how real, how sincere, and in the highest degree how useful Mr. Greeley had been.

Another man of note whom I met in those days was Judge Rockwood Hoar, afterward named by General Grant Attorney-General of the United States, noted as a profound lawyer of pungent wit and charming humor, the delight of his friends and the terror of his enemies. I saw him first at Harvard during a competition for the Boylston prize at which we were fellow-judges. All the speaking was good, some of it admirable; but the especially remarkable pieces were two. First of these was a recital of Washington Irving’s "Broken Heart," by an undergraduate from the British provinces, Robert Alder McLeod. Nothing could be more simple and perfect in its way; nothing more free from any effort at orating; all was in the most quiet and natural manner possible. The second piece was a rendering of Poe’s "Bells," and was a most amazing declamation, the different sorts of bells being indicated by changes of voice ranging from basso profondo to the highest falsetto, and the feelings aroused in the orator being indicated by modulations which must have cost him months of practice.

The contest being ended, and the committee having retired to make their award, various members expressed an opinion in favor of Mr. McLeod’s quiet recital, when Judge Hoar, who had seemed up to that moment immersed in thought, seemed suddenly to awake, and said: "If I had a son who spoke that bell piece in that style I believe I’d choke him." The vote was unanimously in favor of Mr. McLeod, and then came out a curious fact. Having noticed that he bore an empty sleeve, I learned from Professor Peabody that he had lost his arm while fighting on the Confederate side in our Civil War, and that he was a man of remarkably fine scholarship and noble character. He afterward became an instructor at Harvard, but died early.

During the following autumn, in spite of my absorption in university interests, I was elected a delegate to the State Convention, and in October made a few political speeches, the most important being at Clinton, the site of Hamilton College. This was done at the special request of Senator Conkling, and on my way I passed a day with him at Utica, taking a long drive through the adjacent country. Never was he more charming. The bitter and sarcastic mood seemed to have dropped off him; the overbearing manner had left no traces; he was full of delightful reminiscences and it was a day to be remembered.

I also spoke at various other places and, last of all, at Clifton Springs, but received there a rebuff which was not without its uses.

I had thought my speeches successful; but at the latter place, taking the cars next morning, I heard a dialogue between two railway employees, as follows:

"Bill, did you go to the meetin’ last night?" "Yes." "How was it?" "It wa’n’t no meetin’, leastwise no P’LITICAL meetin’; there wa’n’t nothin’ in it fur the boys; it was only one of them scientific college purfessors lecturin’." And so I sped homeward, pondering on many things, but strengthened, by this homely criticism, in my determination to give my efforts henceforth to the new university.