“Bench and bar sinks deeper in the mud every year and every month. They must be near bottom now.”Diary of George Templeton Strong, April 9, 1868
It must be admitted — for a five-year period running from 1868 to 1873, ex-Judge Fullerton was hanging with the bad boys. These were some of the most colorful and imaginative scoundrels that American history has to offer. And he had his own brush with the law.
Fullerton may or may not have been guilty of anything — he was eventually acquitted. But an indictment for extortion and conspiracy to defraud the U.S. Treasury could easily have made him a more sympatico counselor to the rogues who were re-shaping the nation’s transportation systems and manipulating financial markets, as well as the career politicians who were working the system to accumulate considerable personal wealth.
A thorough study of ex-Judge William Fullerton’s activities, as found in newspaper articles and other contemporary sources, could easily mushroom into a multi-volume encyclopedia of early Gilded Age corrupt practices. In deference to the attention span of 21st-century readers, below is a brief timeline, followed by short bio’s of a few select clients and colleagues.
Erie Railway “War”: This epic corporate takeover battle pitted Cornelius Vanderbilt (probably America’s richest man at the time) against a wily triumvirate consisting of aging financier Daniel Drew, emerging railroad magnate Jay Gould and his showboating confederate “Jubilee Jim” Fisk. At its frenzied peak in 1868, battle-tactics included open buying of legislative votes in Albany, rabid private-press printing of unauthorized stock, and late-night injunctions issued by obviously bribed judges, roused from bedside in their nightclothes.
The two-year struggle came to a head in March 1868, when Gould, Fisk, and Drew fled to New Jersey to avoid arrest with $7 million in cash they had earned from selling watered down Erie stock to Vanderbilt. The matter was settled after “Boss” Tweed, the powerful head of New York City’s democratic machine, became a director and threw his support behind the Drew/Gould/Fisk faction.
Fullerton served on the Vanderbilt legal team, led by his former law partner Charles O’Conor. The opposing team, led by the brilliant legal authority David Dudley Field II, included more than 40 paid attorneys, Charles Seward, a nephew of Lincoln’s Secretary of State, and William Evarts, a future Attorney General and Secretary of State, among them. Later in the year, Fullerton would be representing Fisk and Gould, who were then firmly in control of the Erie Railroad, in litigation with German-American financier August Belmont. Legal fees paid on behalf of the railroad, for 1868 alone, totaled $330,510, over 6 million dollars today.
New York Whiskey Ring Conspiracy: Beginning around March 1868, Fullerton was quietly retained as counsel to Special U.S. Treasury Agent, Alfred A. Belknap, who was on a hunt to expose fraud and bribery within the New York ‘Whiskey Ring.’ Belknap’s shadowy attempts to circumvent the U.S. District Attorney Samuel G. Courtney (who was suspected of collusion with the whiskey manufacturers) eventually burst into open conflict between the Treasury team and the Justice Department.
In September, at the direction of President Andrew Johnson, ex-Judge Fullerton was formally appointed as Special Counsel to Treasury for the ongoing investigation. Fullerton called for D.A. Courtney’s removal, but Johnson’s Attorney General (former Erie War participant William Evarts) did not take any action.
Andrew Johnson was becoming irrelevant — he was not nominated by either party to run in the November Presidential election. On November 16th, Courtney indicted Belknap, Fullerton and other members of the team on nine counts of extortion, conspiracy and fraud against the Treasury. Attorney General Evarts maintained a studied neutrality — although he did not remove prosecutor Courtney, he quietly arranged for the trial to be postponed, with the result that Fullerton would not face a judge who was aligned with the D.A.
Another Railroad War: Fresh from victory in the Erie War, Jim Fisk launched an offensive against West Coast-based Union Pacific Railroad, along with its affiliated (and fraudulent) construction arm Credit Mobilier, in Judge Barnard’s notoriously sympathetic New York courtroom. UP retained D.D. Field II and lobbied Congress for legislation to put railroad cases under Federal jurisdiction. While serving as local counsel for the railroad in New York City, Fullerton arranged a private meeting with Fisk to discuss a settlement. (The meeting was later revealed publicly during the impeachment proceeding against the corrupt Judge Barnard.) Fisk bragged to friends that he made $50,000 from the meeting, but the suit was not settled.
Exposure of the Erie Excesses: In July, “A Chapter of Erie”, by Charles Francis Adams (a direct descendant of two U.S. Presidents) was published in The North American Review. The public was shocked by its portrayal of blatant misconduct by judges and lawyers. Fullerton made a cameo appearance — a brief, heated exchange with D.D. Field in Judge Barnard’s courtroom.
U.S. v Fullerton et al: The trial continued to be postponed on various pretexts, such as illness on the part of the senior figure on the defense — Charles O’Conor. The New York Times publicly criticized the continuing delays and noted the array of legal talent on Fullerton’s defense team.
Fishing with Chester Alan Arthur: Earliest documented excursion with “Gentleman Boss” Arthur, a sixteen day stay at a popular fishing camp at Big Tupper Lake, in the Adirondacks, as later recalled by legendary fishing guide “Uncle Mart” Moody.
U.S. v. Fullerton, cont.: The long-awaited trial finally commenced in March. Fullerton’s case was severed from the other defendants (some of whom eventually went to prison.) A two-judge panel was assigned to the case, with the prosecution led by the new U.S. Attorney (and future U.S. Attorney General) Edwards Pierrepont. Assisting the prosecution — well-connected Brooklyn lawyer-politician Benjamin Tracy (eventual Secretary of the Navy.)
After nine days, Fullerton was acquitted by a ‘directed verdict’. (Judges Blatchford and Woodruff ruled from the bench that the prosecution had not presented a case that was strong enough to present to a jury.) The merits of the decision were debated in the press, but eventually all was quietly forgotten.
Back home in Newburgh, the lawyers threw a dinner in Judge Fullerton’s honor, where he was serenaded.
Real Estate deal with Arthur: Arthur and Fullerton purchased an uptown parcel of land at Broadway and 139th St, for $40,000 (or $732,160 in today’s terms).
Representing Tammany Hall: Fullerton (together with E.W. Stoughton) defended James H. Ingersoll, a building contractor and Tweed henchman, in a suit brought by William Havemeyer, three-time mayor of New York City, contending that Ingersoll was responsible for five or six million dollars of missing tax revenue. He escaped conviction at the time, but eventually went to prison for his role in the Tweed Ring theft of public money.
Fisk versus Stokes and Josie Mansfield: Toward the end of 1871, the great gilded age love triangle — involving the rotund and shameless James Fisk, his handsome young friend Edward Stokes, and voluptuous Josie Mansfield — was coming to its breaking point. Initially, Fisk sued Stokes for embezzling funds from the oil company they both had invested in, after which Stokes countered by threatening to expose incriminating love letters Fisk had written to Josie Mansfield, who also brought her own suit demanding $50,000. Fisk paid her $10,000 but then brought another suit for blackmail, to which Mansfield counter-sued for libel. In January 1872, Stokes shot and killed Fisk on the ladies’ entrance staircase of the Grand Central Hotel.
Fullerton served as one of the attorneys for Fisk during the chaotic rounds of litigation, but did not have a visible role until after Fisk’s dramatic end.
Trial of Edward Stokes for the Murder of Jim Fisk: Fullerton (along with his colleague Augustus Beach) were sitting next to the prosecutors at the beginning of the trials that eventually led to a prison term for Fisk’s murderer. And Fullerton personally made the opening argument. His role was never explained, but the under-funded New York City prosecutor’s office was obviously happy to collaborate. Eventually, the jury reached a verdict of Manslaughter, and sentenced Stokes to be hanged, but the verdict was overturned on appeal. Stokes spent four years in Sing Sing and lived out the rest of his life as a free man.
Effort to Impeach the “Tweed Ring” Judges: The Association of the Bar of the City of New York had been formed in the wake of the scandals surrounding the Erie War and the general corruption of the New York judiciary. Investigations and impeachment efforts centered around three “Tweed Ring” Supreme Court Justices –George Barnard, John McCunn and Albert Cardozo (father of the future great jurist Benjamin Cardozo).
Fullerton defended Cardozo, who was accused of extreme acts of corruption, nepotism, and taking bribes for Tammany Hall. Barnard and McCunn were impeached and convicted by the Senate, while Cardozo resigned and returned to private law practice, under a cloud that persisted long after his death.
Trial of ‘Boss’ Tweed: Tweed had been charged with Grand Larceny and in January the trial was begun in front of Judge Noah Davis. D.D. Fields II led his defense team. Fullerton’s old friend O’Conor helped orchestrate the prosecution effort, which involved a large team of lawyers, including future Democratic presidential candidate Samuel Tilden and Fullerton’s former adversary in the Millspaugh case, Henry Laurel Clinton.
The first trial ended in a hung jury, amid suspicions of Jury tampering. During the second trial, Field (who was an internationally acclaimed expert in legal procedure) was in Brussels and Fullerton played a more prominent role in Tweed’s defense.
At the beginning of jury selection, Fullerton quietly handed Judge Davis a letter signed by the entire defense team, which asked the judge to recuse himself on grounds that he had shown prejudice against the defendant. At the receipt of this letter, the Judge famously turned red, and insisted that the trial would continue.
Mid-November, Judge Davis slapped Tweed with a much harsher verdict than expected–thirteen years in prison and $12,500 in fines. He then summoned the defense team to a special hearing at which Fullerton and two others were held in contempt, fined $250 and “held committed” (i.e. jailed) until the fine was paid.
Judge Davis’ rebuke became part of the folklore of the legal community for decades.
Phelps, Dodge, and Co versus the U.S. Customs House: Judge F’s fishing buddy Chet Arthur was appointed Customs Collector for New York in 1871. At the time, the customs system was the largest source of political patronage jobs in the U.S. as well as a source of plentiful opportunities for graft.
Phelps Dodge (which still exists today) was an import-export firm dealing in metal and cotton. The Customs House charged that the company had devalued their goods and defrauded the government by $1,000,000.
Later investigations showed that the Customs House claims were greatly overstated and Arthur was accused of personally benefitting, due to an usual compensation arrangement that awarded customs officials a percentage bounty for successfully prosecuting cases.
Fullerton played a curious role as a would-be “fixer”. Retained as counsel for Phelps Dodge, he tried to negotiate a private settlement, which would involve a payment of $200,000 but avoid any publicity or litigation.
The offer was actually rejected because of Phelps, Dodge, and Co’s proclaimed innocence, and a litany of he-said-she-saids between the government and the firm delayed settlement. The case dragged on for nearly two years, between 1872 and 1874, led to a payment by Phelps Dodge of $ 271,000 (over $6 million today) which was split between the informant on the company, the Collector of the Port, and other government officials, and became a flashpoint in the heated debate over reforms to the entire “spoils”-based system and government corruption.
Select Player Bio’s:
Arthur, Chester Alan (1830-1886) New York lawyer and political operative. A key member of Senator Roscoe Conkling’s Republican ‘machine,’ Arthur served as Collector of the Port of New York from 1871-1878 and amassed considerable wealth. Became 21st U.S. President upon the assassination of James Garfield. Sometimes called the ‘Dude’ President, because of his extensive wardrobe, and famously fond of fishing, including at least two lengthy trips with William Fullerton.
Beach, Augustus (1809-1884) Lawyer based in Albany, frequently involved with the great criminal cases of the day, including the prosecution team against Edward S. Stokes. Collaborated with Fullerton in Tilton v. Beecher, arguably America’s most notorious 19th century sex scandal trial.
Cardozo, Albert (1828-1885) Attorney and judge. Prominent member of the Sephardic Jewish community of New York City. During the 1850s became involved in the Tammany Hall political machine and beginning in 1864 was appointed to judicial posts, where he was able to perform many favors for the Tweed ring, and issue rulings that benefitted Jim Fisk and Jay Gould. Resigned under the threat of removal from office for misconduct, after which he continued to practice law until his death in 1885. His son Benjamin (age 11 at the time of Cardozo’s disgrace) eventually became one of the most venerated judicial figures in the nation, serving as Chief Judge of the New York Court of Appeals and Associate Justice of the U.S. Supreme Court.
Evarts, William (1818-1901) Prominent New York lawyer and statesman. Served as U.S. Attorney General and Secretary of State as well as Republican Senator from New York. Famously represented Andrew Johnson in the Senate trial. Helped found the Association of the Bar for the City of New York and spearheaded efforts to reform the judiciary, in the wake of revelations of corruption on the part of the Tweed Ring judges and complicit lawyers. Was part of the star-studded defense team in the 1875 Henry Ward Beecher adultery trial where he jousted publicly with Fullerton.
Field II, David Dudley (1805-1894)* Trial lawyer and renowned legal scholar, whose Code of Civil Procedure (the “Field Code”) was adopted in 24 states and influenced procedural reforms in England and its colonies. Led the legal team on behalf of Fisk and Gould as well as for Boss Tweed, all of which associations cast a shadow on his reputation.
Fisk, Jr., James (1835-1872) The “Prince of Erie,” closely associated with unscrupulous financier Jay Gould in railroad takeover battles as well as a notorious 1869 attempt to manipulate the gold market (with assistance from Judge Cardozo) which led to a spectacular market crash that embarrassed President Grant and caused economic distress. His antics and high living flouted society’s conventions, but came to a tragic end when he was shot by his former friend and business partner, Ned Stokes over their shared love interest, Josie Mansfield.
Johnson, Andrew (1808-1875) Tennessee Democrat. Became 17th President of the United States following the assassination of Abraham Lincoln. Conflict with the Republican radicals over the policies towards the South and the newly-freed slaves led to Johnson’s becoming the first U.S. President to be impeached by the House of Representatives. At the Senate trial, he narrowly escaped removal from office by a margin of one vote. Allegations of bribery in connection with the vote were never proved, but were part of the background to the “New York Whiskey Frauds” investigation, which ensnared Fullerton.
O’Conor, Charles (1804-1884)* Trial lawyer and politician. O’Conor was the son of an exiled Irish revolutionary. His courtroom skills were widely admired, and he was generally considered the “dean” of the practicing trial bar. Famously solitary and irascible, in the 1850’s, he invited Fullerton to move his practice to New York City where they formed the short-lived firm of O’Conor, Fullerton and Dunning. Headed the team representing Cornelius Vanderbilt in the Erie Railway battle and (like opposing counsel D.D. Field) attracted negative attention for the violation of legal norms and abuse of the system. But he helped spearhead the effort to prosecute Boss Tweed, without compensation. O’Conor was sympathetic to the South during the Civil War and represented former Confederate President Jefferson Davis when he was indicted for treason. In 1872, he was nominated for the Presidency by a breakaway faction of the Democratic party, thus becoming the first Catholic candidate for the Presidency.
Porter, John K (1819-1892)* Trial lawyer and Union College classmate of William Fullerton (class of 1837). Served on the New York Court of Appeals from 1865-1867 (overlapping Fullerton’s brief term). Famously served as special counsel to the prosecution in the case of Charles Guiteau, who was executed for assassinating President Garfield.
Seward, Clarence (1828- 1897)* A respected corporate lawyer, who had been raised by his uncle, William Seward (Secretary of State to Presidents Lincoln and Johnson). Partner in the firm Blatchford, Seward, and Griswold, predecessor to today’s powerhouse Cravath, Swain and Moore. Served as Assistant Secretary of State to Andrew Johnson after William Seward was wounded in the assassination conspiracy that killed Lincoln.
Stoughton, Edwin W. (1818-1882)* Well-regarded patent lawyer and member of the stalwart faction of the Republican Party. Along with William Evarts, Stoughton represented Rutherford Hayes before the Electoral Commission that decided the disputed Presidential election of 1876 and was rewarded with the ambassadorship to Russia.
Tweed, William M. (1823-1878) Widely referred to as “Boss” Tweed. Democratic politician and power broker extraordinaire who rose from humble roots in the Lower East Side to Grand Sachem of the Tammany Hall political machine. The full extent of the graft and theft committed by the Tweed Ring has never been fully accounted for, with estimates ranging from $25 million to $200 million. (Roughly $500 million to $4 billion in today’s dollars.) After a series of trials. Tweed was eventually convicted of Larceny, as well as other counts, and spent a year in the ‘Tombs,’ before escaping and fleeing across the Atlantic Ocean to Spain. Spotted because of the popularity of Thomas Nast’s pervasive political cartoons, he died in NYC’s Ludlow Street Jail.
Vanderbilt, Cornelius “the Commodore” (1794-1877) Son of a poor farmer, started out ferrying people from Staten Island to New York City on a small boat, and eventually became a steamboat operator and then railroad magnate. He created the Grand Central depot, predecessor to Grand Central Station, and organized the New York Central Railroad. By the time of his death, Vanderbilt was believed to the wealthiest man in America.
* Member of defense team in U.S. v. Fullerton.