BENJAMIN FRANKLIN TRACY

(1830-1915)
Court of Appeals: 1881-1882
by Susan S. Dautel
Benjamin Franklin Tracy

Benjamin Franklin Tracy was a member of the Court of Appeals for only one year, and is better known as "father of the modern American fighting navy" for his 1889-1893 service as Secretary of the Navy during the administration of President Benjamin Harrison. In addition to this national cabinet-level service, in which he is credited for promoting an aggressive "two ocean" navy, his long and varied career included periods as a celebrated litigator and orator in the private practice of law and public service as the Tioga County district attorney, member of the New York State Assembly, United States district attorney for the Eastern District of New York, Associate Judge of the Court of Appeals, chairman of the commission that drafted the charter for Greater New York, and counsel for Venezuela in the arbitration of a boundary dispute with Great Britain.

In his thirties, he became a decorated Civil War hero, seeing battle in the 1864 "Wilderness of Virginia" campaign under General Ulysses S. Grant, and ending his five-year military service as commandant of the massive and trouble-prone prisoner of war depot at Elmira, New York. Despite the brevity of his mid-career service on the Court of Appeals at age 51, he handed down an uncommonly large number of opinions establishing long-standing precedents in areas of law ranging from urban transit to the legality of marriages contracted in other states.1 His biographer, B. Franklin Cooling, states that the demanding schedule at the Court badly affected Tracy's health and caused him to decline reappointment after only one year.2

Benjamin Franklin Tracy was born on April 26, 1830, in Tioga County, the third son of Benjamin Tracy, Sr. and Bathsheba Woodin Jewett. His father was a farmer, owner of a small sawmill on the Susquehanna River, and a local justice of the peace. Until age 13, Tracy attended the local district school year-round; in his teenage years he attended school only part-time so that he could assist with the family farm. For a short time he attended a boarding school run by C. R. Coburn in Owego, leaving there at age 17 to teach for a year in a district school in Canawana, a suburb of Owego.

A FLOURISHING LAW PRACTICE

A growing interest in the law was fueled by Tracy's success as a member of a local debating society and by access to his father's legal literature. At age 19, he affiliated with the Owego law office of Colonel Nathaniel W. Davis to begin preparation for admission to the bar. There he gained trial experience in local justice courts. In 1851, at age 21, Tracy was admitted to the New York State Bar, and also married Delinda E. Catlin of nearby Nichols, New York. Within five years, the couple had three children: Emma Louise (born 1852), Mary Farrington (born 1854) and Frank Broadhead (born 1856). During that time, Tracy's law practice became one of the busiest and most lucrative in Tioga County, with Tracy establishing a reputation as a formidable courtroom orator holding an impressive win record for jury trials. He also apparently was a success on the social scene, known for his fashion and dancing flair. Standing nearly six feet tall, with a trim, muscular build, dark hair and blue eyes, he was an attractive and imposing man who was "simply peerless" in the old-fashioned five-step waltz.3

It is not surprising that a man with such professional and personal attributes would become active in local politics. In 1853, he ran as a member of the Whig party and was elected Tioga County District Attorney, at age 24 said to be the youngest DA ever elected in New York State. As the Whig organization began to falter and dissolve, Tracy became involved in the formation of the new Republican party. He spoke at many local political conventions and helped organize rallies in support of the fledgling party which embraced Tracy's own opposition to the expansion of slavery in the United States. In the 1856 local elections, the Democrats hoped to derail Tracy's reelection bid for Tioga County District Attorney, by supporting Gilbert Carlton Walker, a partner of Tracy's former mentor, Colonel Davis. Although the popular Tracy defeated Walker, the political opponents became good friends and Tracy invited Walker to join him in the law firm of Warner, Tracy and Walker. The practice flourished, as Tracy was trying more cases than any other lawyer in his county. On a certain day an entire court calendar had to be adjourned due to his sudden illness -- he was involved in every case on the day's docket.4 The firm was abruptly dissolved in 1859 when Walker moved out of the area (Walker would later become governor of Virginia). Overwhelmed by work and illness, Tracy did not seek a third term as district attorney, and gave up his position as chairman of the Tioga County Republican executive committee. He left his law practice and took his family to live on his father's farm for over a year of recuperation.

CIVIL WAR SERVICE

Tracy turned 30 shortly after the Civil War began in 160. He had remained active in politics and in 1861 was elected to the New York State Legislature. After only one session as an assemblyman he went back to the practice of law in Owego. By the summer of 1862, President Lincoln was calling for volunteers in the face of Union battlefield defeats and extensive casualties. New York's Governor Edwin Morgan appointed Tracy to head a committee to raise army regiments in New York's 24th District which included Broome, Tioga, and Tompkins Counties. Tracy himself volunteered at this time, receiving a commission as colonel of state troops from Governor Morgan on July 21, 1862. He took command of one of the three regiments that he had raised, New York's 109th. In August 1862, the 109th regiment left New York for duty in the Washington, D.C. area, serving for 18 months as guards for the railroads operating around Washington and Baltimore.

In March 1864, Tracy and his regiment saw combat in the "Wilderness of Virginia" campaign after General Ulysses S. Grant gathered all Union forces in the area to meet General Robert E. Lee's advancing troops. At one point, Tracy's men were surprised in the forest and began retreating. Colonel Tracy took up the regimental colors and rushed the enemy lines, stirring his men to hold their position. He later received the Congressional Medal of Honor for valor in this skirmish. During the campaign, Tracy's physical health waned from battle strain and a prior heart condition. Some accounts state that he was wounded. In May 1864 he reluctantly resigned his command and returned to Owego.

In September 1864, Colonel Tracy accepted command of the 127th U.S. Colored Troops; however, before he could report to this command, Secretary of War Edwin Stanton appointed him commandant of the depot at Elmira where new recruits reported for duty and Confederate prisoners of war were housed. Tracy was thrust into the post with no training or assistance from his predecessor who had left abruptly due to illness. The post was an underfunded administrative nightmare: Tracy had to deal with corruption and desertion issues with the new recruits, and housing and supply problems for over 10,000 prisoners of war. He also was responsible for difficult prisoner exchange logistics with the Confederate army. Funding and supplies were constant problems as the Union's priority was supporting soldiers at the front. The Elmira facility became notorious as the "Andersonville of the North" or "Helmira," with terrible prisoner suffering especially through the brutal New York winter. However, Tracy is credited with using all of his administrative talents to run the facility as decently as possible.5 Tracy was no doubt relieved that this command came to a relatively quick end with the conclusion of the war in the spring of 1865.

PUBLIC SERVICE AND THE BEECHER CASE

On June 5, 1865, Tracy resigned from the military with plans to make a new start in politics and the practice of law in New York City. He joined the Wall Street firm of Benedict, Burr and Benedict, but did not stay long. President Andrew Johnson rewarded Tracy's active participation in New York politics by appointing him U. S. District Attorney for the Eastern District of New York in October 1866. The Republican prosecutor served as a political watchdog during years when William "Boss" Tweed ruled New York City politics as chairman of the New York Democratic Party, a reign notorious for corruption, graft, and patronage. Tracy also found legal challenges in that his district included a major illegal whiskey production and distribution center. Finding it difficult to prosecute participants as conspirators in the multifaceted operation of the "whiskey ring," Tracy drafted federal legislation passed by Congress in 1867 to broaden the reach of conspiracy statutes. He also successfully combated the whiskey ring on tax evasion grounds, in the process sending a local tax collector to prison for fraud. In 1868 Congress passed additional legislation drafted by Tracy to remedy deficiencies in the law governing collection of taxes on distilled spirits. In July 1867, U.S. District Attorney Tracy became "General" Tracy when President Andrew Johnson appointed him a Brevet Brigadier General of Volunteers "for gallant and meritorious services during the War."6

Tracy's considerable success as a U.S. District Attorney led President Grant to reappoint him in 1871. Tracy, however, encountered differences with the Grant administration which he considered corrupt. The U.S. Attorney General in December 1872 requested that Tracy resign, which he did several months later. Once more Tracy returned to the private practice of law, joining his brother-in-law Isaac Catlin in offices at 26 Court Street, Brooklyn. At this time Tracy owned a house in Brooklyn and several large properties in the Owego area, including a 550-acre horse breeding farm named "Marshland" which produced trotters prominent in the horse racing world.

Almost immediately after returning to private practice, Tracy became embroiled in a case which scandalized Brooklyn for several years: Theodore Tilton v. Rev. Henry Ward Beecher. Beecher, a longtime friend of Tracy, was the prominent and popular pastor of Plymouth Church in Brooklyn who regularly preached to Sunday crowds of 2,500 or more. Beecher's sister was Harriet Beecher Stowe, the well-known author of Uncle Tom's Cabin. Tilton, a parishioner, sued Beecher for adultery with Tilton's wife, seeking $10,000 in damages. Tracy first became involved with the situation as U.S. District Attorney, obtaining an indictment against the publishers of a weekly tabloid which first broke news of the alleged affair. The indictment, on a charge of sending an obscene utterance (news of the affair) through the U.S. mails, was soon dropped. Upon his return to private practice, Tracy joined Beecher's defense team. The trial was a media circus, starting in January 1875 and ending six months later with a hung jury.7 Tracy gave the opening statement for the defense and examined some of the witnesses, earning rebukes from the judge for excessive hostility toward plaintiff's witnesses. Tracy himself described the case to the jury as follows: "You cannot but feel, as I do, an overwhelming sense of the solemn importance of this trial. It will loom larger in history than any which has taken place for eighteen centuries. No man of this defendant's fame has ever been called upon to answer such a charge in a court of justice. What a spectacle has been presented in this city of churches!"8 Tracy's participation in the whole episode, including his related actions while U.S. District Attorney, was criticized in the press as "professional treachery and personal dishonor."9

A YEAR ON THE BENCH

Despite the Beecher notoriety, Tracy remained one of the State's leading Republican politicians, a status he had attained in part due to the federal patronage he controlled as U.S. District Attorney. Even after he left the federal arena, he controlled many New York State patronage positions through the Republican-led state legislature. He, General James Jourdan, Assessor of Internal Revenue, and Silas Dutcher, Supervisor of Internal Revenue, constituted the "Three Graces" in control of Republican politics in Brooklyn. In 1881, Tracy was persuaded to run for mayor of Brooklyn, but eventually withdrew in favor of Seth Low who went on to win as a nonpartisan reform candidate. Shortly thereafter, in December 1881, Governor Alonzo Cornell appointed Tracy an associate judge of the Court of Appeals in the place of Charles Andrews who was newly appointed Chief Judge. Tracy remained on the Court only one year, declining renomination in 1882 after the Court's heavy workload took its toll on his health. The writer of a letter to the Editor of the New York Times observed: "It has been remarked that to no member of like brief tenure in our highest court ever fell in the routine of business so many cases of moment as to Benjamin Tracy. Is it not more likely that what he had learned and thought out in his notable practice as advocate and counsel enabled him to stamp causes before the whole court, whether his by routine or no, into leading cases?"10

Among the Court of Appeals opinions for which Judge Tracy is known are a concurring opinion in Story v. New York Elevated Railroad Co. (90 NY 122 [establishing the right of an adjoining landowner to just compensation for the taking of its property for the public use of constructing the elevated railway]); Stewart v. The Brooklyn and Cross-Town Railroad Co. (90 NY 588 [establishing the liability of a common carrier to a passenger attacked by the carrier's employee -- the driver -- even though this action was outside the scope of his employment]); Erwin v. Neversink Steamboat Co. (88 NY 184 [interpreting the U.S. Rules of Navigation to establish the liability of a steamship company to the injured engineer of another boat involved in a collision in New York harbor]); and Thorp v. Thorp (90 NY 602 [establishing, to the displeasure of a husband seeking to avoid the monetary effects of a divorce decree, the validity in New York of a marriage valid in the foreign state where it was contracted]). A biographer wrote about Judge Tracy's opinions: "They commend themselves, not only to the professional, but to the lay reader. For clearness of expression, research, logical compactness, pointed illustration, and the absence of all pretense and show, they are certainly remarkable judicial productions, destined to live in legal history."11

Shortly after declining renomination to the Court of Appeals, Tracy was named at the Republican state convention as a candidate for Supreme Court of the Second District but was defeated in the election. In the winter of 1882-1883, his health continued to decline until he was forced to give up politics and the practice of law, retreating to Marshland to recuperate. He resumed practicing law in 1885, forming the new firm of Tracy, MacFarland, Boardman and Platt in Manhattan. His junior partner, Frank H. Platt, was the son of Tom Platt, boyhood friend of Tracy and influential New York politician elected U.S. Senator in 1881. Tracy's connections with the Platt family placed him in a good position to be a compromise cabinet appointee when Benjamin Harrison was elected U.S. President, with Platt's support, in 1888. On March 1, 1889, President Harrison offered and Tracy accepted the position of Secretary of the Navy, although he thought he would be offered appointment as U.S. Attorney General. Tracy eventually became a close friend and confidant of the President.

NAVY REBUILDING AND A PERSONAL TRAGEDY

At the time of the Civil War, the U.S. Navy was one of the largest in the world; however, with peacetime came neglect of the nation's naval forces and a re-focusing toward inland transportation (railroad) development. By the time Tracy became Secretary of the Navy, there were growing global tensions, a fear of the superior sea power of France and Great Britain, as well as an increasing need for military protection of expanding international commercial enterprises. In the same month Tracy was appointed Secretary of the Navy, a hurricane in the Samoan Islands destroyed the U.S. naval squadron there and endangered the nation's interest in controlling Samoa as a crucial coaling station on the major Pacific trading route. Tracy's first annual report to President Harrison raised a red flag by stating that the Navy had never been so powerless at sea and could not properly protect our coastline or commercial interests. The report was an urgent call for a fighting force to include battleships and torpedo boats, in two fleets of armored ships. The possible cost caused substantial political turmoil, but Tracy began the long haul of lobbying Congress for the funds needed for his vision.

In February 1890, disaster struck the Tracy family: a fire in their Washington home took the life of Tracy's wife and youngest daughter, Mary.12 His daughter Emma and granddaughter Alice escaped. Tracy himself was taken from the building unconscious. President Harrison rushed to the scene and assisted in administering artificial respiration to Tracy, who slowly revived. (Judge Tracy later served as best man to President Harrison at his wedding.) The Tracy family still has in its possession a scrapbook filled with letters, telegrams and proclamations from heads of state, governments and prominent persons, expressing sympathy at the tragic deaths.

Mary Tracy, known as Mattie, who perished in the fire, was an artist, many of whose oils and water colors, including an imposing portrait of Nathanial Catlin, Judge Tracy's father-in-law, still hang in the Tracy family home in Apalachin, NY.

After the White House funeral of his wife and daughter, Tracy curtailed his official grieving and threw himself back into meetings with Congress. Eventually shipbuilding funds were appropriated and Tracy launched into an energetic program of rebuilding the U.S. Navy. Three types of ships conceived and constructed during his tenure of secretary were the battleship, the armored cruiser and the protected cruiser. Tracy is also noted for promoting a naval reserve force, reforming labor practices at navy yards, streamlining departmental bureaucracy, supporting the Naval War College, and clearly pronouncing principles of international law as they affected naval and national rights.

Judge Tracy had a warship named after him, the torpedo boat destroyer USS Tracy. It was sunk at Pearl Harbor. The Tracy Arm, a fjord of great beauty in Alaska, was named after Judge Tracy, who was a friend and supporter of William H. Seward, who engineered the purchase of Alaska from Russia.

FINAL YEARS

At the close of the Harrison administration in 1893, Tracy went back to New York and resumed the private practice of law with Boardman and Platt. He at first concentrated in estate management cases, but moved into patent law on the strength of his experience as Secretary of the Navy with contract negotiations for new types of steel. He slowly returned to politics, and his affiliation with Tom Platt. He was named to a board of commissioners to frame a charter for Greater New York, and eventually chaired the board. Platt also convinced Tracy to run for New York City mayor in 1897; Tracy's defeat ended his hopes for elective office.

At the urging of former President Harrison, Tracy was retained to represent the nation of Venezuela in the arbitration of a boundary dispute with Great Britain over lands in British Guiana. In 1900, Tracy affiliated with the Coudert brothers' firm which specialized in estate liquidation. His granddaughter Alice married one of his new partners, Frederick R. Coudert. In 1915, while in semi-retirement, Tracy suffered head injuries in a car accident, and several weeks later, on August 6, died of a stroke. A military guard of honor accompanied his funeral cortege, and he was buried in Greenwood Cemetery in Brooklyn. In eulogies from men who knew him in differing contexts the following would be said of his power as a litigator and of his status as "father of the modern American navy":

In a word, General Tracy was potent, almost omnipotent, before a jury. He impressed the average juryman with his sincerity, wisdom, and above all with his personality. He had a marvelous power of comprehending a case, then of making it comprehended. Both his appearance and his manner helped him. He seemed to have the fiery enthusiasm for the truth, of a Hebrew Prophet.13

General Tracy was really the man who began the fight for a big navy. It was Mr. Whitney [his predecessor as Secretary of the Navy] who secured the appropriation for the construction of two ships, but the country in general was wild at the expenditure of money and the administration was not well supported. General Tracy took off his coat, went to work and took up the task of educating the people. It was his work that really was the foundation of the present navy.14

PROGENY

The Judge's daughter Emma (1852-1934) married Ferdinand Wilmerding. In 1897 their daughter Alice (d. 1962) married Frederic Coudert (the son of Frederic Coudert [1832-1903] who founded Coudert Brothers). They had two children, Benjamin Tracy Coudert and Frederic Coudert, Jr. (1898-1972), who served several terms as a member of Congress. Frederic Coudert Jr. married Paula Murray in 1931, and they had two children, Frederic R. Coudert III and Paula Coudert, who married William Rand (b. 1926), who served on the State Supreme Court in 1962. The Rands have four children (the Judge's great-great-great grandchildren), all of whom live in New York: Alicia, who married Mikael Muller; Carley, married to Carl Christopher Weatherly-White; Paula, married to John Hornbostel; and William Coudert Rand, a New York attorney, married to Molly Pfohl.

Judge Tracy's only son, Frank Brodhead Tracy (1856-1945), went to Yale and Albany Law School, then practiced with Tracy, Boardman & Platt. He married Elizabeth (Bessie) Cornell (1885 1968). They had three children: Benjamin Franklin Tracy (1906 1989), Thomas Brodhead Tracy (1908 1971), and James Burt Tracy (1910 1919). Benjamin Franklin Tracy attended Yale and Cornell Law School and became an attorney in Owego, NY. He married Rose Villapiano (b. 1920).

Benjamin Franklin Tracy and Rose Villapiano had five children: Frank Brodhead (b. 1946), Elizabeth Louise (b. 1947), Thomas Augustus (b. 1949), George Catlin (b. 1952), and Benjamin Franklin (b. 1964). The children grew up on Marshland Farm in Apalachin, NY, which Judge Tracy had bought, and which his son Frank had run. Judge Tracy raised standardbred horses, then tobacco, and the farm ended up a dairy farm until the mid-1950s. The Tracy family sold the farmhouse in 1960, moving to nearby Meadowfields, the home of Gen. Isaac Catlin, Judge Tracy's brother-in-law.

Frank Brodhead Tracy, a lawyer in Philadelphia, married Jean Astley (b. 1949) and they have one son, Benjamin Franklin Tracy (b. 1985), who is a senior at the University of Pennsylvania. Elizabeth Louise Tracy married Kean K. McDonald (b. 1944), and they have three children, Tracy Louise (b. 1976), Kean Bennett (b. 1980), and Catherine Elizabeth (b. 1983). Thomas Augustus Tracy married Lisa Clark, and they have two children, Schyuler Elizabeth (b. 1994) and Meredith Rose (b. 1995). George Catlin Tracy married Linda Coleman, and they have two children, Amy Christine (b. 1982) and Sarah Ann (b. 1988). Benjamin Franklin Tracy (b. 1964) married Rachael Gilpin (b. 1972), and they have two children, Fiona Rose (b. 2003) and Harrison (b. 2005).

 

SOURCES CONSULTED

"A Plea for Judges Fit and Well Trained" (letter to the Editor), New York Times, Sept. 10, 1904, p 6.

Beecher, Henry Ward, The Case of Henry Ward Beecher, Opening Address by Benjamin F. Tracy, of Counsel for the Defendant (1875).

Bergan, Hon. Frances, The History of the New York Court of Appeals, 1847-1932 (1985).

Boltz, Martha, "Elmira: A Prison of Horror for Confederates," Washington Times, Mar. 4, 2000, p B3.

Brooks, James Wilton, History of the Court of Common Pleas of the City and County of New York (1896).

Chadbourne, The Public Service of the State of New York, http://www.courts.state.ny.us/history/ elecbook/chadbourne_coa/pg25.htm .

Chester, Alden, Courts and Lawyers of New York: A History 1609-1925, vol. 2, pp 950, 959-960, fn 14.

Columbia Electronic Encyclopedia, 6th ed., http://www.infoplease.com/ce6/people/A0849216.html (2005).

Cooling, B. F., Benjamin Franklin Tracy: Father of the Modern American Fighting Navy (1973).

"Death of Gen. B.F. Tracy," Owego Times, Aug. 12, 1915, p 2.

"The Ending of a Long and Useful Life," Owego Gazette, Aug. 12, 1915, p 2.

"Gen. Benj. F. Tracy Dies in 86th Year," New York Times, Aug. 7, 1915, p 7.

"General Tracy's Last Years" (editorial), New York Times, Aug. 8, 1915, p 24.

"Gen. Tracy's Will Filed," New York Times, Sept. 29, 1915, p 13.

Great Sayings by Great Lawyers: Immortal Thoughts Snatched from Oblivion, pp 725-726 (1922).

Kingman, Leroy W., Our County and Its People, pp 526 et seq. (1897). McAdam, David, History of the Bench and Bar of New York, vol. 2, p 371 (1897).

Platt, Frank H., Memorial for Benjamin Franklin Tracy, Year Book of the New York County Lawyers' Association, May 1916.

Proctor, L.B., The Bench and Bar of Kings County, N.Y. and the Bench and Bar of the City of Brooklyn, 1686-1884 (1884).

Short, Lloyd M., The Development of National Administrative Organization in the United States, pp 309, et seq. (1923).

There Shall Be a Court of Appeals, 150th Anniversary of the Court of Appeals of the State of New York (1997) (booklet on file with the Court of Appeals).

"Tracy Funeral Tomorrow," New York Times, Aug. 8, 1915, p 25.

 

PUBLISHED WORKS INCLUDE:

New York City's Debt: Facts and Law Relating to the Constitutional Limitation of New York's Indebtedness, New York Bureau of Municipal Research (1909).

The Bering Sea Question, North American Review, May 1893, pp 513-542.

U.S. Navy Department, Annual Reports 1890-1893.

Our New Warships, North American Review, June 1891, pp 643-655.

 

ENDNOTES

  1. Cooling, Benjamin Franklin Tracy: Father of the Modern American Fighting Navy, pp 41-42.
  2. Ibid.
  3. Ibid., p 7, citing Owego Times, May 2, 1889.
  4. "Gen. Benj. F. Tracy Dies in 86th Year," New York Times, Aug. 7, 1915, p 7.
  5. Boltz, "Elmira: A Prison of Horror for Confederates," Washington Times, Mar. 4, 2000, p B3.
  6. Cooling, supra, p 38.
  7. New York Times, July 3, 1875, p. 1.
  8. Great Sayings by Great Lawyers: Immortal Thoughts Snatched from Oblivion (1922), pp 725-726.
  9. Cooling, supra, p 40.
  10. "A Plea for Judges Fit and Well Trained," New York Times, Sept. 10, 1904, p 6.
  11. Proctor, The Bench and Bar of Kings County, N.Y. and the Bench and Bar of the City of Brooklyn, 1686-1884 (1884), p 48.
  12. New York Times, February 4, 1890, p 1.
  13. Platt, Frank H., Memorial for Benjamin Franklin Tracy, Year Book of the New York County Lawyers' Association, May 1916.
  14. Words of fellow Cabinet member John Wanamaker, quoted in "The Ending of a Long and Useful Life," Owego Gazette, Aug. 12, 1915, p 2.