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THE 
 
 ^CONSPIRACY TRIALS 
 
 OF 
 
 1826 AND 1827. 
 
 A CHAPTER IN ^ 
 
 THE LIFE OF JACOB BARKER. 
 
 BY 
 
 R. D. TURNER. 
 
 PHILADELPHIA: 
 
 GEORGE W. CHILDS, 628 & 630 CHESTNUT ST. 
 
 1864. 
 
o 
 
 C^ 
 
PREFACE. 
 
 The appearance of the present volume, at a 
 time so remote from the date of the transactions 
 described, may be a matter of surprise to some; 
 while, from the character of the subjects presented, 
 others may think it were better the work had 
 never been published. Many of the prominent 
 actors in the events referred to, and their co- 
 temporaries who were interested in them at 
 the time of their occurrence, have passed away, 
 and those who survive have reached a period of 
 life when men seek to escape, in repose and tran- 
 quillity, from the more stirring and exciting re- 
 collections of earlier manhood. More than a 
 generation stands between us and the events of 
 1826 and 1827, a period into which has been 
 crowded more of human history and human pro- 
 gress than into centuries of the earlier time. 
 Jacob Barker still lives, and in- the giant strides 
 of the present generation has borne his part and 
 helped to make its history. The octogenarian 
 of to-day, who was a leading participant in the 
 efforts of a past generation, has bridged the 
 
 3 
 
PREFACE. 
 
 chasm of intervening years by incessant activi- 
 ties, and now stands to receive, at the hands of 
 his fellow-citizens, the verdict of censure or ap- 
 plause, as he may have acted well or ill, in the 
 conspicuous part he has played, for more than 
 threescore years and ten, in the business and 
 public affairs of his country. 
 
 The events set forth in this volume form a 
 chapter and constitute an exciting episode in the 
 life of Mr. Barker. They not only live in the 
 traditions of the period when they occurred, but 
 are often reproduced in the current literature and 
 appropriated by the biographer and historian of 
 the present times, not unfrequently with a care- 
 less disregard' to facts, and wanton indifference 
 to the damaging influence their misstatements 
 may have upon the reputation of those concerned. 
 It is not strange that the name of one who has 
 filled so large a place in the public eye as Jacob 
 Barker should often appear in newspapers, pe- 
 riodicals, and books which treat of the events of 
 our past history; especially of those departments 
 of business and public life in which he acted so 
 prominent a part. It is with a view to correct 
 false statements in regard to the events treated 
 of in this volumfe, and as far as possible to pre- 
 vent their repetition in future, as well as to 
 gratify the wish of a number of Mr. Barker's 
 friends, that he has consented to the present 
 publication. 
 
PREFACE. 6 
 
 The commanding position and influence of Mr. 
 Barker in the financial operations of the period 
 referred to, aroused the jealousy of his rivals, 
 who conspired to circumvent and destroy the 
 man who had proved himself eminently their 
 superior in the race of fair and honorable busi- 
 ness competition. From the facts and statements 
 contained in this work, the public wdll be able to 
 judge of the means and agencies through which 
 they sought to accomplish their object, and to 
 see that, whatever may have been the nominal 
 and legal' sequences of these Conspiracy Trials, 
 the grand result was, the confusion and discom- 
 fiture of the conspirators, and the manifestation 
 not only of the innocence and integrity of their 
 intended victim, but that his powers and re- 
 sources were fully equal to the new and untried 
 emergencies with which the malice of his ene- 
 mies had so artfully surrounded him. A distin- 
 guished writer, lately, referring to these trials, 
 remarks, "Mr. Barker's defence was a prodigy 
 of ability;" and so it will appear to those who 
 may read this volume. 
 
 The conspiracy charged against Mr. Barker was, 
 
 .^ in fact, a conspiracy on the part of others to ruin 
 
 • him, in order to save themselves from the odium, 
 
 and other consequences, arising out of the events 
 
 which served as the occasion for these trials. 
 
 At the inception of the scheme, Mr. Barker's 
 
 high reputation and commanding position in the 
 
 1* 
 
6 PREFACE. 
 
 monetary affairs of the country, and especially 
 among the leading business men, shielded him 
 even from suspicion. But they sought a shining 
 mark, and desired to make a costly sacrifice, in 
 order more effectually to conceal their real object, 
 which was to strike down the man whose con- 
 ceded superiority had secured to him almost a 
 controlling influence, and who, being made the 
 scapegoat of sins not his own, would furnish 
 them with the means of escape from impending 
 perils, while, at the same time, it would remove 
 out of their way the only one whom they feared 
 in the competitions of business. Circumstances 
 favored their plans and objects. Mr. Barker 
 was connected with many of the banks and 
 chartered companies of New York at that day, 
 and his advice and assistance were sought by 
 most. When, therefore, the crash came, and the 
 community was startled by the failure of many 
 of these banks and companies, it was natural that 
 the public eye should turn to the man whose 
 position and influence would seem to make him 
 responsible. Still, he escaped suspicion, and 
 others were implicated as the cause of these ca- 
 lamities. But his enemies bided their time, and, 
 led on by a distinguished legal gentleman, com- 
 binations were formed, and plots were laid, which 
 eventuated in bringing Mr. Barker before the 
 tribunals as a suspected party. The failure 
 of these institutions had produced wide-spread 
 
PREFACE. 7 
 
 pecuniary disaster among the stockholders, and 
 embarrassed, in many ways, the operations of 
 business and trade; and there was scarce any 
 one who did not feel, more or less, their effects. 
 A community thus smarting under pecuniary 
 loss and embarrassment was the ready means in 
 the hands of the conspirators, used against Mr. 
 Barker, and they did not fail to fan the flame of 
 popular excitement, till the people became cla- 
 morous against the supposed perpetrators of so 
 great a wrong. So strong w^as the feeling thus 
 aroused, that Mr. Barker was cut off from the 
 ordinary means of self- vindication. The press, 
 if not subsidized, had become overawed by the 
 clamors of public opinion, and he was denied its 
 use that he might reach the public mind and 
 hold opinion in abeyance till his guilt or inno- 
 cence could be proved. So far, his enemies had 
 triumphed ; and he found himself on trial for 
 high crimes, under the disadvantages of a pre- 
 judgment, by an "outside pressure," which threat- 
 ened to invade the rights of the citizen, in the 
 only sanctuary where those rights are regarded 
 as absolutely sacred and safe, under the guardian- 
 ship of our constitutions and laws. While we 
 would utter no word that would impair the feel- 
 ing of reverence for law, or cast a stain upon the 
 ermine of judicial sanctions, we are compelled, in 
 view^ of the facts disclosed on the trial of Mr. 
 Barker, to believe that courts are not always 
 
 / 
 
8 , PREFACE. 
 
 above the range of popular clamor, or judges 
 secure from the machinations of artful and de- 
 signing counsel. 
 
 One of the serious difficulties encountered by 
 Mr. Barker, in the Conspiracy Trials, was the 
 fact that some of the most influential inhabitants 
 of the city, misled by false representations, and 
 carried away by the excitement of the hour, gave 
 their influence to those who had conspired for 
 his downfall, who were themselves also men of 
 influence. In bringing the present volume before 
 the public, it becomes necessary to present the 
 names of those who acted a prominent part in the 
 transactions described. No man should object to 
 meet the record of his acts, no matter when and 
 where presented. Mr. Barker's friends have 
 thought that great injustice was done him in the 
 legal, or illegal, proceedings in the Conspiracy 
 Trials, as well as, to some extent, in the opinions 
 of social life. They therefore desire, in order 
 that his fair fame should stand without taint or 
 blemish, that the simple facts of the case should 
 be permanently put on record before his death, 
 and given to the public. More than a quarter 
 of a century has elapsed, and most of those who 
 acted with the men of the generation before 
 ours, have passed from life ; but Mr. Barker still 
 lives, and his deeds will live after him. And 
 others still live; who were among those who con- 
 spired for the downfall of Mr. Barker j and now 
 
PREFACE. y 
 
 both he and they will stand for trial before the 
 present generation who may read this book. It 
 is well its publication has been delayed so long. 
 Time has cooled the passions and softened the 
 prejudices of those who survive of a past gene- 
 ration, while those of the present will judge 
 with unbiased minds, and both, alike, rendej: 
 their award, not of condemnation, but of acquittal, 
 yea, of applause, to the man who then, in those 
 trying scenes, and before, and since, through a 
 long life, has done so much that deserves the 
 admiration and gratitude of his countrymen. 
 
 The materials of which the present volume is 
 composed are presented in the form in which 
 they were thrown together by Mr. Barker, about 
 the time when the events occurred, without any 
 intention of publishing them, and with no regard 
 either to style or method. It is preferred that 
 they should go forth as originally prepared, with- 
 out embellishment, analysis, comparison, or argu- 
 ment; believing that a view of the simple and 
 naked facts of the case will be their best present- 
 ment to an intelligent and discriminating public. 
 
 The introduction is a simple resume of his life 
 up to the time of the Conspiracy Trials; a run- 
 ning outline, merely intended to furnish illustra- 
 tions of character, without regard to historical 
 sequence or fulness, — to be filled up, it is ex- 
 pected, in a future volume. Such a volume, it is 
 hoped, will exhibit, in completeness of detail, the 
 
10 PREFACE. 
 
 life of Jacob Barker; supplying what is oraitted 
 in the Introduction to this book, and extending 
 to the present period, or to the time of his death, 
 should that occur before it is written. Whilst, 
 therefore, the Introduction is, as it ought to be, 
 simply intended to introduce the reader, by brief 
 notices of the past, to that passage of his life 
 unfolded in the following pages, it may also 
 serve to increase the desire already felt for a 
 complete record of one of the most strongly 
 marked, and in many respects remarkable, cha- 
 racters which our country has produced. 
 
 K D. T. 
 
CONTENTS. 
 
 PAGE 
 
 Introduction 15 
 
 CHAPTER I. 
 Insurance Companies 61 
 
 CHAPTER II. 
 North River Bank 63 
 
 CHAPTER III. 
 Chief-Justice Spencer's Opinion 65 
 
 CHAPTER IV. 
 
 Mr. Barker's Speech — The Trial for having sent a 
 Challenge 71 
 
 CHAPTER V. 
 
 A New Trial asked for — Mr. Barker's Speech 73 
 
 11 
 
12 CONTENTS. 
 
 CHAPTER VI. 
 
 PAGE 
 
 Failure of the Life and Fire Insurance Company 87 
 
 CHAPTER YII. 
 Conspiracy Trial 91 
 
 CHAPTER YIII. 
 
 Extract from the Speech of Benjamin F. Butler, Esq.. 145 
 
 CHAPTER IX. 
 Contempt of Court 174 
 
 CHAPTER X. 
 Second Trial — Speech of Mr. Barker 176 
 
 CHAPTER XI. 
 
 Second Trial — Resolutions of Insurance Companies 184 
 
 CHAPTER XII. 
 Judge "Woodworth's Opinion 191 
 
 CHAPTER XIII. 
 Maxwell before the Grand Jury 204 
 
COJv^TENTS. 13 
 
 CHAPTER XIV. 
 
 PAQB 
 
 Richard Riker, Recorder of the City of New York 207 
 
 CHAPTER XY. 
 
 Memorial to the Governor soliciting the Removal of 
 Richard Riker, the Recorder of New York 216 
 
 CHAPTER XVI. 
 
 Application of Mark Spencer and others to the Supreme 
 Court for a Change of Venire 231 
 
 CHAPTER XVII. 
 
 Third Trial — Chief-Justice Ambrose Spencer^s Speech..,. 240 
 
 CHAPTER XVIII. 
 The Speech of Thomas Addis Emmett, Esq 243 
 
 CHAPTER XIX. 
 Application for a New Trial 257 
 
 CHAPTER XX. 
 Chancery Suit 264 
 
 CHAPTER XXL 
 
 Public Meeting at the New York Exchange in Wall 
 
 Street 308 
 
 2 
 
14 CONTENTS. 
 
 CHAPTER XXII. 
 
 PAGE 
 
 Chancery Suit and its Disclosures 310 
 
 APPENDIX. 
 Death of Lieutenant William H.Allen 315 
 
 Mr. Barker and the Free Negroes of New Orleans 323 
 
INTRODUCTION. 
 
 On the little island of Nantucket, lying far off the 
 New England coast, among its population of hardj and 
 adventurous whalemen, who gathered their spoils in the 
 polar zones and on every ocean, the young Quaker, 
 Jacob Barker, in the last quarter of the last century, 
 at the age of five years, found his home. Born, indee-d, 
 in Maine, during a temporary residence of his parents, 
 yet unfolding his childhood and youth on the island, 
 he boasts Nantucket as the place of his nativity, — not 
 born, but bred there. 
 
 Jacob Barker and Benjamin Franklin descended 
 from the same ancestral stock; Jacob Barker being 
 third cousin in the paternal, and fourth cousin in the 
 maternal, line, to Benjamin Franklin. There was a 
 striking personal resemblance between these two re- 
 markable men, as will be seen by comparing their por- 
 traits ; nor were they unlike in their prominent traits 
 of character. Both have made their mark in history. 
 The one, by his genius and labors, illuminated the 
 world of science and literature, and led in the counsels 
 of statesmen and diplomats ; the other, turning his 
 thoughts towards the more practical concerns of life, 
 won distinction as a leader in mercantile and financial 
 affairs, and has borne no unimportant part in the 
 politics of his country. The mothers of both were 
 born in Nantucket. 
 
 15 
 
16 INTRODUCTION. 
 
 The susceptible period of childhood he spent in his 
 island home, in the midst of the ocean, where, within 
 sound of its mighty roar and within sight of its sublime 
 phenomena, it is not strange he early caught the 
 inspiration of the sea ; and where, too, he listened, 
 with a boy's wonder and admiration, to the stories of 
 its maritime population, till his imagination was 
 kindled with the romance of bold and daring adven- 
 ture and hairbreadth escapes of a "life on the ocean- 
 wave." Nor is it strange that in his boyish ambition 
 he should choose the sea as the theatre on which to try 
 his fortune in life. There, too, in his boyish sports, he 
 showed his undaunted spirit, as he would launch his 
 boat upon the troubled waves, and play with danger as 
 if enamored of its perils, — fit emblem and foreshadow- 
 ing of the fearless and indomitable courage which has 
 characterized his conduct through a long and stormy 
 life of unrest, amid the conflicts and competitions of 
 business and public afi'airs. And it is a beautiful proof 
 of his undying "first love," when we see him turn, in 
 later years, from the exciting scenes of busy life, to 
 visit, with filial afi'ection, the home of his childhood; 
 to behold the venerable man of fourscore renewing his 
 youth, by entering again with joyous hilarity into the 
 sports of boyhood, surrounded by his grandchildren, in 
 whose companionship and pastimes he seems almost to 
 become young again. Wherever may have been his 
 residence, he has always had another home in Nan- 
 tucket, to which, with almost a pilgrim's devotion, he 
 would resort whenever opportunity was allowed him to 
 seek repose and relaxation from the cares and anxieties 
 of business. 
 
 Mr. Barker's disposition and aptitude for trading 
 
INTRODUCTION. 17 
 
 and mercantile pursuits displayed themselves at a 
 remarkably early period of his life. While quite a 
 boy, he would send any little sums of money he might 
 have, by the captain of his older brother James's 
 packet, as an adventure, to Boston, to purchase some- 
 thing for the Nantucket market, which on the return 
 of the packet he would sell on his own account. On 
 several occasions his brother James allowed him to go 
 as cabin-boy in his packet to New York and Boston. 
 On one of these trips the passengers presented him 
 with thirty-one and a quarter cents. This sum he 
 invested at Boston in three iron tobacco-boxes, and took 
 them to Nantucket, where he sold two of them at a 
 penny apiece profit ; the other got a little rusty, and 
 was sold at cost. When at Nantucket, forty years 
 after, he met an old man leaning on his stajBf, who 
 asked him, abruptly, ''Jacob, will you take a piece of 
 tobacco?" at the same time presenting his box. Jacob 
 declined his ofier, but recognized his old friend and the 
 box he had sold him. On one occasion he accompanied 
 his brother James up the Hudson, on a vessel laden 
 for Troy. Ice-bound, however, at Poughkeepsie, his 
 brother left the vessel and cargo in charge of the boy 
 Jacob, who managed the matter quite to his brother's 
 satisfaction, by exchanging the cargo for the produc- 
 tions of the country ; ' and at the same time, by a little 
 traffic on his own account, he returned to Nantucket 
 with eight dollars in his pocket. Soon after his return 
 from Poughkeepsie, he wrote a letter to his half-brother, 
 Gideon Gardner, residing at Hudson, New York, in 
 which he stated that he wished to go to sea, learn a 
 trade, or go to school. This letter afterwards found its 
 way into the newspapers, through Mr. Gardner's ex- 
 
 2* 
 
18 INTRODUCTION. 
 
 ecutor. The orthograpliy of the letter justified the 
 latter wish. 
 
 At the age of sixteen, Jacob left Nantucket to enter 
 the school of Professor Wall^ in New Bedford. It was 
 here he first met and loved Miss Hazzard, who after- 
 wards became his wife. He remained at school nearly 
 a year, when, hearing of the death of his brother Isaac, 
 he returned home. There for some months he served 
 as a clerk in the store of John Elkins. But his aims 
 were higher than the dull monotonies and quiet routine 
 of a country store. Yielding to his early predilections, 
 and stirred by his youthful ambition, he determined at 
 once to enter upon the life of a sailor, and shipped as a 
 raw hand on board a packet bound for New York, with 
 the understanding that he might be discharged at that 
 place could he procure a berth on board a ship bound 
 for the East Indies. 
 
 On reaching New York, his brother Abraham, then 
 a clerk in a leading mercantile house, induced him to 
 abandon his seafaring schemes and enter the counting- 
 room of Isaac Hicks, a commission merchant of high 
 standing in the city. On his arrival in New York, his 
 capital consisted of one hundred dollars in money, the 
 avails of his former trafficking in Nantucket, together 
 with investments already made in absent adventures, 
 which yielded another hundred : "af these, his importa- 
 tions from Russia were the most profitable, and con- 
 sisted of feather beds and diapers. So, at the age of 
 seventeen, with two hundred dollars in his pocket and 
 a situation in one of the first mercantile houses in New 
 York, Jacob Barker may be said to have taken his start 
 in the real business of life. 
 
 On entering the counting-room of Mr. Hicks, he de- 
 
INTRODUCTION. 19 
 
 voted himself with alacrity and fidelity to the service 
 of his employer, but neglected no opportunity which 
 leisure or convenience ajQforded for indulging his early- 
 formed habit of trading a little on his own account. 
 One of his first experiments of this kind was in the 
 purchase of a gold watch, at a street auction, for which 
 he paid twenty dollars. At the time, he feared he had 
 been overreached and outwitted ; but in the end it 
 turned out a good speculation. As this transaction 
 aifords a striking illustration of the character of young 
 Jacob at this early period, we copy the full account 
 of it, as told by another. 
 
 "The circumstances of the sale were these. Jacob 
 Barker was sent to Messrs. James and Samuel Watson, 
 an extensive commission house of Front Street, by Mr. 
 Hicks, for a note for sperm candles sold them. Those 
 extensive merchants proposed to this small boy a sale 
 of shipbread, saying his fellow-clerk, Mr. Samuel 
 Hicks, often purchased the article of them in exchange 
 for liver oil, for which article they frequently had 
 orders from Virginia, with which bread he supplied the 
 ships consigned to Mr. Hicks to profit. Jacob replied 
 that he had no money wherewith to pay for bread : 
 they proposed to give him credit, a confidence doubtless 
 arising from his being in the employ of Mr. Hicks. 
 He thanked them, but declined, saying he dare not 
 incur a debt, adding that he had not any liver oil, 
 nothing but a gold watch, which he should like to 
 barter for bread. They asked to see the watch, which 
 being exhibited, and the price named, payable in ship- 
 bread, they proposed to have it left, and they would 
 decide in the morning, if he could call when he went to 
 the post-office for letters, to which he assented, saying, 
 
20 INTHODUCTION. 
 
 'You wish to have it examined by a watchmaker. I 
 have had that service performed, and know the watch 
 to be good.' 
 
 "He called in the morning, when the Messrs. Wat- 
 son agreed to keep the watch on the terms proposed. 
 
 " Here we have a barter trade between merchants of 
 high standing in commercial circles and a green boy 
 from Nantucket. 
 
 " The next object of Jacob was to find a market for 
 his bread. He w^as sent by Mr. Hicks to collect a note 
 for codfish sold Thomas Knox, Esq., a very amiable, 
 intelligent, and liberal merchant of Wall Street. 
 
 " Inquiry w^as made of Mr. Knox if he did not wish 
 to purchase some shipbread for stores for the vessel on 
 board which the fish had been sent. The reply was 
 that the stores were all on board, but that he had an 
 order for three hundred barrels of bread for a ship 
 which was undergoing repairs at the ship-yards, which 
 would be wanted in about three weeks, and inquired of 
 the lad at what price he would furnish that quantity. 
 He had but ten barrels : his reply was that he would 
 go for and bring immediately a sample, with the in- 
 formation required, for which he repaired to the store 
 of Messrs. Watson. They expressed a disposition to 
 sell, — said it was a consignment from Virginia, had been 
 long on hand, therefore they would sell cheap. A con- 
 ditional bargain was made, they to take Mr. Knox's 
 note at four months, without Jacob's endorsement, if he 
 could not get it at a shorter period. 
 
 " A sample of the bread was taken to Mr. Knox, the 
 price named on a credit of sixty days. An answer 
 was promised the next morning, for which Jacob was 
 punctual to call, when he was informed that John 
 
INTRODUCTION. 21 
 
 Hyslop, an extensive baker, asked the same price for 
 the same quality of bread on a credit of ninety days, 
 Mr. Knox remarking, 'You are a pleasant little fellow, 
 and if you will allow the same credit I will take the bread 
 of you.' This being agreed to, Jacob observed that he 
 should like to have a memorandum to that eftect. Knox 
 smiled, gave the memorandum of the agreement, taking 
 an order on the Messrs. Watson for the bread. When 
 delivered, a note was drawn for the amount due them, 
 and, as a matter of accommodation, Mr. Knox paid the 
 money for the balance. 
 
 '' Mr. Barker thus turned his watch into more money 
 than he gave for it, and made one hundred and twenty- 
 five dollars profit on the bread, — ^more than doubling the 
 capital he brought with him from Nantucket, in a very 
 few months after taking up his residence in New York." 
 
 Once, during a sickly season, he was allowed by Mr. 
 Hicks to visit Ballst(3n. At that place he purchased a 
 horse, on which he made the journey to New Bedford, 
 where he traded the animal for crude sperm oil, which 
 he caused to be manufactured and shipped to New 
 York, where it yielded him double the cost of the 
 horse. 
 
 One day Mr. Hicks pointed to a lot of soap which 
 had been a long time in the store, and said, " Jacob, 
 why does thee not sell that soap?" to which Jacob re- 
 plied, "For want of an applicant," but remarked, 
 at the same time, "I will purchase it at eight cents, if , 
 thee will give me four months' credit and allow me to 
 send it as an adventure to Havana." Mr. H. said, 
 in his usually rapid manner, "Take it, take it: I am 
 tired of the sight of it." It was shipped by Jacob to 
 Havana. Within six weeks he received returns of 
 
22 INTEODUCTION. 
 
 fifty cents per pound in specie. Mr. Hicks entered the 
 store while Jacob was counting his gold, and said, in 
 surprise, "What is all this?" To which the fortunate 
 young speculator replied, "Money for the soap; and I 
 am now ready to pay for it, though not due for more 
 than two months." Mr. Hicks passed on without reply, 
 evidently pleased with his young friend's success. 
 
 Another business exploit of young Barker about this 
 time was of a bolder and more comprehensive character, 
 involving much responsibility, and requiring enterprise, 
 skill, and tact for its successful execution. We refer 
 to the fact of his being sent, with the consent of his 
 employer, Mr. Hicks, by several prominent merchants 
 in New York, to Nantucket to purchase ships for them. 
 The whaling business being depressed at that time, the 
 owners of ships there desired to sell them. Young 
 Jacob went twice to the island on this errand, and pur- 
 chased three ships. The transactions in all their details 
 were in the highest degree creditable to the young 
 agent, and evinced a maturity of judgment, a readiness 
 to comprehend emergencies, and a quickness and energy 
 in executing his plans truly astonishing in one of his 
 age. For these services his employer, Mr. Hicks, re- 
 ceived a commission of two and a half per cent, on the 
 entire amount of the purchase-money. 
 
 The story so often told about Mr. Barker in refer- 
 ence to a marine policy of insurance has never, we 
 #believe, been correctly reported in print. Insurances, 
 at the time referred to, were made after the manner of 
 Lloyds, London, — by individual subscription. Young 
 Barker, expecting the arrival of a vessel in whose cargo 
 he had a small interest, called upon a celebrated under- 
 writer who usually insured his adventures, and made a 
 
INTRODUCTION. 23 
 
 verbal agreement for insurance. The next day he 
 learned that some disaster had overtaken the vessel. 
 Desiring to possess himself of evidence of the contract 
 already made, he wrote a note to the underwriter, re- 
 questing that if the policy had been filled up it should 
 be sent to him ; but if it had not been filled up, not to 
 proceed in the matter till he should call and see him. 
 The policy, however, had not been prepared, and the 
 messenger who bore the note was detained till it could 
 be made out, when it was sent by him. This simple 
 transaction, which occurred during Mr. Barker's mino- 
 rity, and which was satisfactorily settled between the 
 parties, who were ever afterwards warm personal friends, 
 has served as the ground of innumerable fictions and 
 false statements from the time of its occurrence to the 
 present day. . 
 
 During his minority he not only traded with foreign 
 countries, but became part owner in three ships and a 
 brig, kept an account with the United States Branch 
 Bank, and had his notes regularly discounted until he 
 reached his majority, after which Isaac Hicks, referring 
 to Jacob, told the directors jestingly they had been dis- 
 counting the notes of boys. This caused Jacob's note, 
 the next time it came round for renewal, to be thrown 
 out, with the remark that the bank could not discount 
 the paper of minors. They were informed Mr. Barker 
 was no longer a minor; and his note was again dis- 
 counted. 
 
 Young Barker lived in the family of his employer the 
 last two years that he was in his employ, and paid him 
 for board one-half what he had paid at other places. 
 The difference in the price of board was the only com- 
 pensation he received for his services. 
 
24 INTRODUCTION. 
 
 The fruit of Mr. Barker's trafficking and specu- 
 lations during his minority was the accumulation of 
 five thousand dollars capital. In this simple fact we 
 read the eulogy and comprehensive commentary on the 
 character and conduct of his boyhood and youth. The 
 result was brought about by no fortuitous chances and 
 unreflected and thoughtless adventures, but was the 
 reward of well-considered plans, restless activity, and 
 an abiding and hopeful self-reliance. The value of the 
 accumulation was not so much in its possession as in 
 the self-training and discipline resulting from the 
 efforts put forth to realize it ; fitting him, as these did, 
 to step from his boyhood's probation into the unfettered 
 arena of manhood's sterner competitions and severer 
 struggles. "The boy was father of the man." It is 
 such boys, when they grow to manhood, who are the 
 pillars of society and framework of a nation's strength 
 and grandeur. How few of our boys achieve so much 
 in their minority, and commence their manhood with a 
 capital of their own earning, and an experience of 
 hardy discipline and self-denial which is the sure 
 pledge of unfailing success! 
 
 In 1801, Mr. Barker commenced business on his own 
 account, having entered into a co-partnership with John 
 Bard and Jonas Minturn, as commission merchants. 
 On the 27th of August of the same year, he was mar- 
 ried to his former schoolmate Elizabeth Hazzard, 
 daughter of Thomas Hazzard, of New Bedford, and after- 
 wards of New York. She died in New York, September 
 18, 1861. While at his wedding-dinner, a letter was 
 handed to him which informed him of the loss of all 
 his property in consequence of having endorsed and 
 sold bills of exchange for Henry Deaves, who was one 
 
INTRODUCTION. 25 
 
 of the wedding-party, and to whom Mr. Barker, after 
 reading it, handed the letter. He also read it, and 
 then, at Mr. B.'s invitation, took wine with him. The 
 rest of the party Avere ignorant of the contents of the 
 letter. Neither the equanimity of Mr. Barker nor 
 the hilarity of the occasion^were disturbed by the unex- 
 pected intelligence, and, full of joy and hope, he bore 
 his young bride to his home in New York. 
 
 To discharge the liabilities incurred in the unfortunate 
 transaction with Mr. Deaves, required the sacrifice of 
 all Mr. Barker's earnings up to that period. But the 
 dishonored bills were paid, and he was enabled still to 
 continue his business. His commission business had 
 now become very extensive, and his connections in that 
 line were with the most respectable merchants of the 
 country. Not satisfied, however, with a large and suc- 
 cessful commission business, he extended the scope of 
 his operations, and, not merely from early predilections, 
 but from its importance to the commerce of the country 
 as well as its promising pecuniary results to himself, 
 embarked also in maritime trade. Directing his ener- 
 gies to this new field of enterprise, his ships soon began 
 to float on every sea. With Russia especially he 
 opened a large trade. He established a house in Liver- 
 pool, and his foreign connections in business were very 
 extensive. In the purchase and sale of ships his cus- 
 tomers were found even among emperors. He con- 
 tinued his maritime operations till he became the largest 
 ship-owner in the country, with the exception of Wil- 
 liam Gray, of Salem. 
 
 In providing captains and other oflicers for his ships, 
 he always gave a preference to the men of Nantucket, 
 not only on account of their excellent seamanship, but 
 
26 INTRODUCTION. 
 
 from the force of early association, and the friendship 
 he has ever borne the people of that island. This 
 friendship he manifested on many occasions. During 
 the War of 1812, intercourse with the mainland being 
 interruj)ted and supplies cut off, the people of the 
 island were suffering greatly for want of provisions. 
 Mr. Barker bought a fast-sailing pilot boat, sent her to 
 Norfolk, and had her loaded with flour and despatched 
 for Nantucket, for the relief of the suffering inhabit- 
 ants. As the vessel neared the island, a heavy fog 
 swept over the sea, and, on the lifting of the veil, she 
 found herself in close vicinity to a British seventy-four, 
 by which she was captured and the vessel and cargo 
 were lost. His benevolent intentions were thus frus- 
 trated, but the memory of his kindness still lives 
 among the people. In 1825 the merchants and banks 
 of Nantucket became greatly embarrassed. They sent 
 a committee to New York, who, through Mr. Barker's 
 ready and efficient aid, procured a loan of three hun- 
 dred thousand dollars on a pledge of oil to be left on 
 the island. He also supplied the island with steam 
 communication, by furnishing the steamer Marco Boz- 
 zaris to run between Nantucket and New Bedford. 
 
 In the early part of his commercial career, ever on 
 the alert for some venture promising success, and fa- 
 miliar with the oil-trade of New Bedford and Nan- 
 tucket, he conceived the idea of supplying the United 
 States lighthouses with that article. It was a neces- 
 sity, and the paymaster good. The dealers of those 
 two marts rivalling each other in bids for the market, 
 the oil fell to a not very compensating price. Mr. Barker 
 mediated between his old friends, reconciled them to 
 co-operation, and secured the agency for the supply 
 
INTRODUCTION. 27 
 
 of Government for one year. After that, they con- 
 cluded to dispense with his services, as they had com- 
 mand of all the oil in the country and could save his 
 commissions. At the same time, they admonished him 
 of the danger of risking on his own account. Not in- 
 timidated, however, but keen-eyed and shrewd, he put in 
 proposals quietly, and secured the contract for six suc- 
 cessive years thereafter. The combination put their 
 figures so high, presuming they had the control of the 
 article, that they overshot the mark, whilst Mr. Barker, 
 confident of the arrival of other oil enough before it 
 should be needed, slipped in his ofi'er and won the prize. 
 A good lesson to those who are not willing to "let well 
 enough alone," but stretch their consciences by asking 
 exorbitant prices because Uncle Sam pays. Mr. Gal- 
 latin, noted for his integrity and fair dealing towards 
 his country as well as individuals, was then Secretary 
 of the Treasury, and of course advertised for the oil. 
 
 In 1806, Mr. Barker imported on consignment to him- 
 self by a London house, for account of Robert Fulton, 
 the first steam-engine ever used in the propulsion of 
 vessels. For months it remained in Mr. B.'s store in 
 South Street, Fulton, the public benefactor, being un- 
 able to pay for it. At length it was placed in the boat 
 intended for its reception, and Fulton first and suc- 
 cessfully navigated the Hudson River by steam-power. 
 Who can comprehend the emotions of the man of ge- 
 nius, as he stood upon the deck of the little boat, 
 watching with anxious but hopeful eye the prepara- 
 tions for the grand experiment of his life? But the 
 moment arrives ; at his signal, the complicated machinery 
 begins to move, and the boat, like a thing of life, stems 
 the tide and cuts its way through the yielding waters, 
 
28 INTRODUCTION. 
 
 obedient to the forces of a mysterious and occult power 
 almost as invisible as the beating heart of man. And 
 as the artificial leviathan moved up the river, puffing 
 out to the breeze its steam-flag of triumph, the people 
 standing on its banks, who had sneered, in their incre- 
 dulity, at the schemes of the visionary dreamer, and 
 had come to witness their failure and laugh at his folly, 
 were now filled w^ith amazement and loudest in their 
 applause and congratulations. Fulton was a mighty 
 man, and had enrolled himself on the scroll of fame. 
 Who can estimate the present and future results of that 
 initial experiment? In it Jacob Barker had a hand. 
 
 Mr. Barker was early led to the study of the laws 
 and principles of trade, in their more comprehensive 
 relations to the science of political economy,— to trace 
 the connections between the policy of government and 
 the resulting conditions of commerce and finance. This, 
 together w^ith his ardent patriotism, led him early to 
 take an active part in politics, into which he carried all 
 the zeal of his earnest and restless nature. He was a 
 Democrat born and a Democrat bred. He sprung from 
 the bosom of the sovereign masses, and had no bias or 
 taint of aristocratic pretension or exclusiveness. His 
 early and later associations helped to develop and foster 
 his natural and instinctive tendencies. His father, 
 father-in-law, and mercantile employer, Isaac Hicks, 
 were all Democrats ; and Jacob Barker, in early man- 
 hood, incited by the Alien and Sedition laws and the 
 Stamp Act of John Adams, openly espoused the cause 
 of Thomas Jefferson, and preserved his political stand- 
 ing, although some of the measures of the President of 
 his choice were detrimental to his private interests. 
 The Embargo and Non-Importation Acts, so far from 
 
INTRODUCTION. 29 
 
 advancing, tended to the utter ruin of his prosperity; 
 yet he maintained and advocated them, whilst many of 
 his fellow-Democrats united with the Federalists in a 
 determined opposition, characterized by extreme viru- 
 lence and abuse. 
 
 On the purchase of Louisiana, he defended the course 
 of Jefferson, denounced in the bitterest terms by the 
 Federalists; yet who now would deny the sagacity of 
 the distinguished statesman who recommended, and the 
 wisdom of those who sustained, the measure? Spending 
 an evening at the White House with Mr. Jefferson, 
 just after the detection of Burr's conspiracy, and on 
 the eve of the President's report of it to Congress, 
 Blennerhassett's name naturally occurred in the con- 
 versation, when Mr. Jefferson took occasion to express 
 his views decidedly in favor of admitting immigrants 
 early to the privileges of citizenship. This enlightened 
 policy towards foreigners settling among us has always 
 been strongly advocated by Mr. Barker; and he 
 regarded the scheme of the so-called American Party 
 as a libel on the American name and American prin- 
 ciples. It has ever been our pride and our boast that 
 America was not only the *' land of the free and the 
 home of the brave," but the asylum of the oppressed 
 of all nations. Tens of thousands have come at our 
 bidding, and in exchange for the blessings of liberty 
 and citizenship, which we have given them under our 
 free institutions, they have filled vast unoccupied terri- 
 tories with industrious populations, felling the forests, 
 making the wilderness to blossom, and pouring into the 
 channels of trade the teeming productions and golden 
 harvests that enrich our country and increase the com- 
 merce of the world. .Their strong arms have dug our 
 
 3* 
 
30 INTRODUCTION. 
 
 thousands of miles of canals and built onr tens of 
 thousands of miles of railroads, whose net-work covers 
 the land, making a neighborhood of half a continent. 
 They have swelled the population of our towns and 
 cities with industrious artisans and intelligent and 
 wealthy merchants, whose labor and capital have been 
 a part of our common inheritance of national power. 
 In the higher w^alks of professional life, they have 
 furnished us with those who have adorned the bar, the 
 bench, and the pulpit; while in literature, science, and 
 art, the nation gratefully acknowledges her obligations 
 to her adopted children. All these contributions from 
 foreign lands to the moral, intellectual, and physical 
 forces of the nation have helped to build up this 
 mighty empire, the wonder and admiration of the world. 
 And now, when the liberties and institutions they so 
 much prize are threatened and imperilled by the demon 
 of fratricidal war, they have rallied in countless num- 
 bers to the standard of the Union ; and on every battle- 
 field they have poured out their life-blood to attest their 
 loyalty and show their love for their adopted country. 
 It is a beautiful peculiarity of our institutions, that no 
 sooner does their plastic hand touch the foreign element 
 than it moulds it into harmony, and whatever may be 
 •discordant is wrought iiito homogeneous unity. On 
 this subject' Mr. Barker has always inculcated the 
 •opinions of the illustrious statesman whose principles 
 liave been the guide of his political life. 
 
 When the British Orders in Council, and the Berlin 
 and Milan Decrees of France, provoked a war on the 
 part of the United States, Jacob Barker advocated 
 restriction in trade, embargo, &c., instead of war, 
 although an Administration measure. He differed with 
 
INTRODUCTION. 31 
 
 Governor Clinton, who took sides rather with the Oppo- 
 sition; and yet, in order to conciliate Clinton to his 
 party and retain him in the Democracy, he circulated at 
 his own expense a thousand extra copies of a speech 
 of Mr. Clinton's, which he thought might reconcile 
 him to his cause. It failed, however, to have the de- 
 sired effect, and Mr. Clinton went off under the flatter- 
 ing attentions of the Federalists. 
 
 The embargo not only prostrated the business and 
 destroyed the prosperity of Jacob Barker and other 
 shipping-merchants, but threw out of employment 
 thousands of laboring men dependent on their daily toil 
 for the sustenance of their families. Mr. Barker, having 
 given employment to large numbers of these toiling 
 men, whose natural affiliations were with the Demo- 
 cracy, had acquired an influence over them so para- 
 mount, that they would shout his praise on all occasions, 
 and even rush, at times, to testify their esteem and 
 confidence by bearing him on their shoulders through 
 the streets. The anti-Administration party saw their 
 opportunity whilst these unemployed laboring men 
 were suffering from poverty and almost starvation from 
 the acts of the Government, and they plied all their 
 energies in popular addresses to the passions of the 
 masses, and by every other appliance within the reach 
 of an unscrupulous party, to win them over to the 
 Federalist cause. But the untiring zeal and sharp 
 good sense of Mr. Barker, his stirring and familiar 
 appeals in language suited to their tastes, his un- 
 bounded personal influence over them, growing out of 
 his many acts of kindness, aided mainly in overpower- 
 ing all the arguments and efforts of his opponents, and 
 
32 INTRODUCTION. 
 
 bound them fast to the Democratic party, to which 
 they have ever since adhered. 
 
 Indignation meetings were held by the Opposition, 
 and inflammatory appeals were made to the populace, 
 especially on the occasion of the killing of the captain 
 of a schooner by a ball from a British man-of-war, near 
 the Jersey shore, whose bleeding and mangled body, 
 enshrouded in the national flag, was brought to the city 
 and produced intense excitement among the people; 
 but Jacob Barker lifted up his voice on the Battery, in 
 the Park, and elsewhere; and wherever he appeared 
 and addressed them, the multitude hurrahed for ''Jacob 
 and Democracy." The "Public Advertiser," the only 
 newspaper advocate of the restrictive system in the 
 city, was also three times taken out of the hands of 
 the sherifi" by Mr. Barker, at a loss to himself of three 
 or four thousand dollars. In all these, and other 
 ways, he manifested the strength of his devotion to the 
 Democratic cause, as well as the determination and 
 indomitable perseverance which characterized all his 
 acts. 
 
 The Federal party, as the opposition to Jefferson was 
 called, was extremely bitter in its feelings and con- 
 duct towards Mr. Barker, and spared no efl'ort to de- 
 stroy his influence, especially with those in humble life. 
 He had to meet their incessant artillery of stump-speech 
 epithets, while their newspapers dealt heavy blows of de- 
 nunciation of his every act. This but roused the daunt- 
 less spirit within, and made him bold and fearless as a 
 lion. The "Evening Post," the leading organ in the inte- 
 rest of the Federalists, was so offensive that Mr. Barker, 
 on one occasion, required that paper to recant, or take the 
 consequences of the publication, in the "Advertiser" of 
 
INTRODUCTION. 33 
 
 the next morning, of an article he had prepared jn 
 reply, and which he exhibited to the conductors of the 
 "Post." They notified him that its publication would 
 make it necessary for Mr. Coleman, the editor, to de- 
 mand satisfaction and a settlement on the duel-field 
 of Hoboken. He shrank not from his purpose; the 
 amende honorable was made in the ''Post" of that even- 
 ing, and thenceforth Mr. Barker and Mr. Coleman were 
 friends until the death of the latter. 
 
 Jefi"erson's second term expired, and Madison became 
 his successor in the Presidential chair. The embargo 
 
 a 
 
 had been repealed, and non-intercourse with Great 
 Britain and her colonies substituted. This was con- 
 tinued under Madison's administration ; but, proving 
 ineffectual as a protection to our mercantile marine, and 
 maritime rights, both parties aroused to a sense of the 
 national honor, — the Federalists insisting on a war with 
 France, the Democrats, with Jacob Barker as a warm 
 advocate, as earnestly opposing it. The latter main- 
 tained that France had no foreign commerce for us to 
 assail on the ocean, while our merchant-ships would be 
 at the mercy of privateers, and that the contest would 
 hence be unequal; that an embargo would be all-suffi- 
 cient-and effective; that Britain was our most formidable 
 foe, with her naval power and commerce on the one 
 hand, and her easy access to us by land, through her 
 Canadian colonies, on the other. The Democracy pre- 
 vailed, and President Madison, near the close of his 
 first term, recommended a declaration of war against 
 Great Britain, preceded by an embargo, enacted to be 
 in force for ninety days. 
 
 On the nomination of Madison for a second term, 
 there was a split in the Democratic party of the State 
 
34 INTRODUCTION. 
 
 of New York, a majority preferring De Witt Clinton as 
 the candidate, and among these Chief-Justice Spencer 
 and Martin Van Buren. With them the Federalists 
 united, despairing of electing any candidate of their 
 own. Mr. Clinton regarded the recommended war with 
 Great Britain as a mere party manoeuvre to secure the 
 election of Madison ; and the leaders of his party de- 
 manded war with France only, or, if not that, with both 
 France and England. Notwithstanding this demand, 
 however, and the opinion of Mr. Clinton that the 
 question of war with Great Britain was a mere device, 
 it was actually declared, on the 18th of June following. 
 This led Chief-Justice Spencer to advise the with- 
 drawal of Clinton, but, the latter refusing, their inter- 
 course was interrupted till after the Avar, when, through 
 the interposition of Mr. Barker, they were reconciled, 
 and remained friends ever after. 
 
 On information, by letter, from England, foreshadow- 
 ing the speedy rescinding of the Orders in Council, Mr. 
 Barker drew up a memorial, signed by men of the 
 highest respectability in both political parties, headed 
 by John Jacob Astor, asking Congress to continue the 
 embargo and postpone the declaration of war. This 
 memorial was presented in the Senate only the day be- 
 fore the declaration of war, and hence was ineffectual, 
 the party being unable to recede from their position 
 and abandon their projected measures. Only twenty- 
 one days after, before the news of war could reach 
 England, the British Orders in Council were rescinded. 
 This was a feather in the cap of Mr. Barker, and proved 
 the soundness of his judgment and the efficacy of the 
 restrictive measures he had always advocated, without 
 an appeal to arms. Neither the war nor the Non-Im- 
 
INTRODUCTION. 35 
 
 portation Act was suspended, as was expected in Eng- 
 land, on hearing of the rescission of the Orders in 
 Council ; the President deeming their continuance ne- 
 cessary to the settlement of other matters of difference 
 between the two nations. Although Jacob Barker had 
 drawn the petition for the suspension of the war move- 
 ment in prospect of the recall of those hateful Orders 
 in Council, yet when actual war came, no man was more 
 prompt and cordial in rendering sympathy and aid to 
 the Government in its time of need ; and he heartily 
 rejoiced, with every good citizen, in the dignity, security, 
 and power acquired by the republic in the issues of 
 that war. 
 
 The conduct of the war necessarily required large 
 resources in money. Money is the sinew of war, and 
 the life-blood of a nation's military powder. Without it 
 armies can neither be mustered nor maintained, nor can 
 navies be built or manned. And as the resources and 
 agencies of Wall Street are essential to the execution 
 of plans devised at the White House terminus of Penn- 
 sylvania Avenue, and as the present terrific civil war 
 must cease in lack of the former, so in 1812, when no 
 Wall Street existed, and the country was not only in 
 peril but in penury, the Government was equally de- 
 pendent on the contributions and aid of the rich. The 
 banking institutions were then chiefly in the hands of 
 the Federalists, who aimed at power and spoils by with- 
 holding the means of prosecuting the war, and thus 
 crippling the Administration. Their selfishness and love 
 of gain, however, would hardly allow them to throw 
 aw^ay opportunities of increasing their profits and 
 making more money for themselves and their stock- 
 holders. This Jacob Barker had the sagacity to see, 
 
36 INTRODUCTION. 
 
 and the ability to meet in his financial plans. The 
 Administration was doomed, and his country in disgrace, 
 unless the Secretary of the Treasury could command 
 the money required for carrying on the war. There 
 was then no green-back manufactory at the Capitol, 
 from which to issue all the millions that might be 
 needed. The sole dependence was on the banks. To 
 these the Secretary applied in vain, — offering every pos- 
 sible bonus, advertising the authorized loan, and using 
 his own personal exertions to the utmost. Many feared 
 the safety of the loan, not relying upon the security of 
 the Government ; more closed their doors against the 
 appeal from mere political views and partisan senti- 
 ments. It seemed as if the Government would yield 
 for want of support, and the nation bow cringing at the 
 feet of Great Britain. 
 
 These trying emergencies of the country awakened 
 the patriotism and called out all the energies of Mr. 
 Barker. In his counting-room, by the wayside, and on 
 his bed, he was devising and determining the plans and 
 processes by which he could help his country in her 
 distress. With a thorough knowledge of the paper- 
 money system, on which the banks relied for circulation 
 and profits, and having large experience in commerce 
 and finance, he resolutely undertook to raise and loan 
 to the Government five million dollars. Although at 
 the beginning of the war his losses on his property 
 which was exposed at sea were very large, he yet saved 
 enough to enable him, in March, when Mr. Gallatin 
 advertised the sixteen-million dollar loan, to let him 
 have twenty-five thousand dollars on his own account, 
 whilst he also induced many friends to advance other 
 amounts. Yet but four millions of dollars were raised 
 
INTRODUCTION. ^7 
 
 in response to the Secretary's offer. Proposing better 
 terms in a second advertisement, the deficiency was 
 borrowed from Astor, Parish, and Girard of Philadel- 
 phia. 
 
 A vigorous blockade of our coast, and increased 
 expenses of the Government, rendered a further loan 
 necessary. This again emboldened the Opposition, who 
 had for a time relaxed their antagonism ; but it also 
 nerved Mr. Barker to redoubled efforts. In conference 
 with friends of the country, many of them Federalists, 
 he found and fostered among them a disposition to 
 offer aid and to associate for that purpose. He there- 
 fore opened a subscription, and, by painstaking and 
 unwearied personal effort, secured offers to the amount 
 of two million four hundred thousand dollars. He had 
 urgently appealed to leading Federalists to take this 
 agency, lest political prejudice should operate against 
 him and the subscription, and in order, also, to shield 
 himself from the charge of aiming only at the one- 
 quarter of one per cent, commission, — a compensation 
 certainly tempting on so large an amount, yet involving 
 a service not free from onerous responsibility. Among 
 the subscribers to the loan are found the names of 
 prominent citizens of both political parties, of whose 
 readiness to aid their country in its necessity their 
 posterity may well be proud, — Barker, Rathbone, Liv- 
 ingston, Allen, Post, Minturn, Howland, Clason, Fowler, 
 Mumford, Costar, and others. To this loan Mr. Barker 
 subscribed one hundred thousand dollars on his own 
 account. 
 
 With his subscription and his other arrangements to 
 the same effect, he was prepared to offer to the treasury 
 an additional loan of five millions of dollars. Rejoicing 
 
38 INTEODUCTION. 
 
 in his success, and justly proud of his ability to reple- 
 nish an exhausted treasury, he hastened to Washington 
 to shoAV his patriotism and express his pleasure at this 
 new opportunity of serving his country. 
 
 On the very day of his arrival, Mr. Hanson, a mem- 
 ber of Congress from Maryland, and reputed editor of 
 the "Federal Republican," delivered an inflammatory 
 speech, denouncing the Administration and declaring 
 its utter inability to borrow the means necessary for 
 carrying on the war ; asserting that creditors had 
 already lost confidence, and that no capitalist or mer- 
 chant would loan another dollar to the Government. 
 In the evening of the same day, Mr. Barker had an 
 interview with Messrs. Cheaves, Calhoun, and Bibb, 
 and disclosed to them the object of his visit to Wash- 
 ington. No one of either political party seemed to 
 have heard of the effort in New York to raise money. 
 The next day. Dr. Bibb replied to Mr. Hanson, making 
 use of the statements of Mr. Barker, and so com- 
 pletely falsified the assertions and dissolved the en- 
 chanting views of the orator of the preceding day, that 
 astonishment and alarm sat brooding on the brows of 
 the Opposition. The logic of facts was irresistible ; Mr. 
 Barker had proved the willingness of moneyed men to 
 sustain the Administration and support the war. He at 
 once became the object of calumny and persecution, 
 not only in the newspapers, but by eminent men on the 
 floor of Congress. This treatment by the Opposition 
 served only to strengthen and fix his determination 
 that the Administration should not fail for want of 
 money. He repaired without delay to Mr. Sheldon, 
 the then acting Secretary of the Treasury, and offered 
 the loan of five millions of dollars. 
 
INTRODUCTION. 89 
 
 During the pendency of the bill authorizing an addi- 
 tional loan, certain statements were made in the Senate 
 by Rufus King, of New York, charging Mr. Gallatin 
 with appending improper conditions to the previous 
 loan, which were kept secret between the parties. This 
 led to an investigation by Mr. Barker, who was per- 
 sonally interested and had induced others to become 
 interested in that loan, which resulted in the discovery 
 of only a very common condition of such loans, which 
 fact, when it was made known and explained, silenced 
 all opposition. It turned out that Mr. Sheldon had 
 made impressions on the mind of Mr. King and others, 
 which the facts disclosed, on investigation, did not 
 justify. Thus were hushed for the time the boastings 
 and denunciations of the Federalists, in and out of 
 Congress. . 
 
 Still the Government required more means as money 
 became more scarce. Alarm spread through the com- 
 munity, and apprehensions were everywhere felt for the 
 safety of the State : when Mr. Barker, in concert with 
 others, determined to make an effort for the establish- 
 ment of a national bank, as the only feasible mode of 
 supplying the requisite pecuniary resources to the 
 Government. 
 
 Mr. Barker had been strenuous in his exertions to 
 defeat the renewal of the charter of the old United 
 States Bank, chiefly to gratify a feeling of personal 
 resentment. Durino- its existence he had been emi- 
 
 CD 
 
 nently successful in his commercial operations, and had 
 kept his account in the United States Branch Bank, of 
 which Robert Lenox was the most influential director. 
 Mr. Lenox, rightly or wrongly, — probably the latter, — 
 in case of a difficulty growing out of business transactions 
 
40 INTRODUCTION. 
 
 between Mr. Barker and a Mr. Scott, liad espoused the 
 side of the latter, and took the responsibility of throw- 
 ing out thenceforth, for several weeks, all Mr. Barker's 
 paper offered for discount, and that, too, without the 
 concurrence of several of the other directors. This, 
 of course, seriously affected the business of Mr. Barker. 
 The facts were made known to the mother bank at 
 Philadelphia, and yet the directors reappointed Mr. 
 Lenox. 
 
 The charter of the United States Bank was about to 
 expire; and this afforded Mr. Barker his opportunity. 
 He enlisted the aid of Mr. Duane and Mr. English, in 
 Philadelphia, and filled the columns of the "Aurora," 
 Mr. Duane's paper, and the "Public Advertiser," in 
 New York, with the details of the Lenox case, and the 
 latter paper with editorial articles tending to create 
 a public sentiment against the bank. His personal 
 efforts with members of Congress, also, in Washington, 
 were persevering and ceaseless, until the rejection of 
 the bill for renewal of the charter gave him rest from 
 his labors, whilst his resentment cooled down to a quiet 
 content. 
 
 When, however, he now saw his country in peril from 
 war with a mighty Power, and felt its inability to pro- 
 vide the requisite means by appeals to private indivi- 
 duals and State institutions, he took an active part in 
 getting subscribers to a petition, to be presented to 
 Congress, praying for the establishment of a national 
 bank. He repaired to Washington, and for months 
 together urged the memorial upon the attention of 
 members of Congress, appealing also to the President 
 and his cabinet, on the ground of the utter impossibility 
 of relying upon loans. The measure, however, though 
 
INTRODUCTION. 41 
 
 proposed, failed in both Houses of Congress, the Fede- 
 ral members generally opposing it. Abuse was natu- 
 rally poured upon Mr. Barker and the advocates of the 
 bank; and they were charged with intentionally hinder- 
 ing the borrowing of money in order to secure their 
 object. Mr. Barker contended that the renewal of 
 the charter of the old bank and its existence then 
 would not have removed the difficulty, because its cir- 
 culation would have been scattered and coextensive 
 with the country, and its money loaned to those unable 
 to repay it during the war ; whereas a new national 
 bank could have converted the entire issues to govern- 
 mental uses. 
 
 On the 24th of March, 1814, Congress authorized a 
 loan of twenty -five millions of dollars, which was adver- 
 tised to be closed on the 2d of May following. By 
 publications, personal interviews, and otherwise, Mr. 
 Barker endeavored to convince the heads of depart- 
 ments and influential members of Congress that it 
 would be impossible to borrow more than one-third of 
 that sum, and that some other provision must be made 
 in order to procure the necessary funds and save 
 the country from ruin. Yet Congress adjourned with- 
 out doing any thing further. Mr. Barker offered for 
 five millions of dollars, one-half the sum then adver- 
 tised for bids. No one believed that amount would be 
 taken, and the Federalists, of course, rejoiced in that 
 prevalent opinion, from selfish considerations; striving 
 to spread it abroad, as also to justify it by withholding 
 their co-operation. Mr. Barker's off'er was dependent 
 on conditions, especially that funded stock should be 
 issued to the creditors of the Government under this 
 loan, and that banks furnishing the money should be 
 
 4* 
 
42 INTRODUCTION. 
 
 favored with a certain portion of the financial business 
 of the Government ; and that the holders should have 
 the benefit of any more favorable terms that might be 
 extended to subsequent takers of the loan. - These terms, 
 though long combated, were at length accepted, and 
 Mr. Barker was ready with the first instalment at the 
 proper time. The Secretary, on his part, however, was 
 not ready, and endeavored to vary the terms. This, 
 of necessity, involved Mr. Barker in great difficulty 
 with those of whom he had borrowed, and to whom he 
 had given the pledges of the Government, and sub- 
 jected him to abuse and obloquy, from which the 
 Administration should rather have shielded him ; for no 
 man of that day exhibited the same determination to 
 save untarnished the fair fame of his country, nor like 
 perseverance in filling her treasury with the means 
 necessary to preserve her credit and her honor. 
 
 Almost every possible obstacle was thrown in his 
 way by interested parties, especially by the Chief Clerk 
 and acting Secretary of the Treasury, acting, probably, 
 in the interest of the Opposition. Scrip was substituted 
 for stock, stock was issued without appended conditions, 
 the issues were postj^oned and not ready to be delivered 
 at the proper time, facilities promised to loaning banks 
 were withheld, so as to compel him to sacrifice his own 
 stock in order to meet the payments. Still he perse- 
 vered, determined at all hazards that his country should 
 have the means of carrying on the war and of coming 
 out of it with victory and glory. Nevertheless, he was 
 hunted and persecuted and maltreated by the Secre- 
 , tary of the Treasury and his subordinates, in a manner 
 and to an extent that any but the stoutest heart would 
 
INTRODUCTION. 43 
 
 have failed, any but the strongest arm would have been 
 unnerved. 
 
 Had the promised conditions been fulfilled, Jacob 
 Barker had made such arrangements as would have 
 enabled him to furnish the Government with all the 
 means necessary for the entire conduct of the war. 
 But when pledges given him by the Secretary, on the 
 faith of which banks had agreed to loan him large 
 amounts, were broken, — when the stipulated condition 
 was withheld from the face of the stock, patronage, 
 promised, not given to the banks, — when vexatious de- 
 lays and disappointments dispirited those ready to aid 
 with their means, — when the stock was depreciated by 
 this vacillating policy and this want of good faith, and 
 withholding the supplementary stock, — who could expect 
 the six-million dollar loan to succeed ? And it did 
 not. 
 
 A national bank was now considered the only alter- 
 native, and Mr. Barker directed his energies and finan- 
 cial skill towards its establishment. He drew up a 
 23lan of his own, and earnestly recommended New York 
 as the proper locality for such an institution ; but Mr. 
 Dallas, a Philadelphian, having succeeded to the ofiice 
 of Secretary of the Treasury, a plan was matured by 
 him and reported to Congress to establish a national 
 bank and to locate it at Philadelphia. In conse- 
 quence of news of peace having been received. Con- 
 gress adjourned under the excitements of the hour, and 
 just on the eve of the passage of the bill. At the 
 following session of Congress, however, a United States 
 Bank was established. Had the bill passed at the pre- 
 vious session, it would have rewarded Mr. Barker 
 abundantly, as it gave a preference of stock to holders 
 
44 INTRODUCTION. 
 
 of war loans, which stock would have advanced in 
 value, probably, one hundred per cent. But now, in- 
 stead of these advantages, he was obliged to sacrifice 
 the stock he had pledged, at a very low rate, as security 
 to those who had loaned money, and insisted on its 
 return, that they mighf invest in the stock of the new 
 bank and get the benefit of the expected rise in value. 
 That cry of peace, therefore, which resounded through 
 the halls of Congress and defeated the passage of the 
 bank-bill the previous year, made a probable difference 
 in the fortune of Mr. Barker of two millions of dollars. 
 Thus again and again did the billows roll over him, 
 sweeping away his bright hopes of success. That 
 which had seemed a substantial reality proved but a 
 phantom. Yet, never borne down or discouraged, he 
 prosecuted with renewed vigor his business in New 
 York, and resumed that in Liverpool, and also esta- 
 blished the Exchange Bank in Wall Street. 
 
 During this time, too, he was busily engaged in en- 
 deavors to secure justice at the hands of the Government 
 for the injuries done him in not recognizing the ce- 
 lebrated "condition" in the loans he had made; but 
 in vain. In these efforts, however, by a persistent and 
 intelligent presentation of the truth and justice of 
 his claims, he generally succeeded in gaining his point 
 with the Administration ; for, however the Secretary of 
 the Treasury might be disposed to look too exclusively 
 to the interests of Grovernment against the rights of 
 the creditors, whenever the matter was submitted to 
 the Attorney-General, a fair review of it called forth 
 an interpretation of the law and the ''condition" in 
 favor of Mr. Barker. After exhausting his efforts with 
 the Treasury Department, Mr. Barker sought relief 
 
INTEODUCTION. 45 
 
 from Congress. The Judiciary Committee, to whom 
 the subject Vv^as referred, after a thorough review of the 
 whole question, reported a bill in favor of the claimant, 
 which closes with the following language : — " Consider- 
 ing with what cheerful patriotism Mr. Jacob Barker gave 
 his energies, his eminent financial talents, and his great 
 pecuniary means, to sustain his country in the darkest 
 and most perilous hour of the War of 1812, it can 
 hardly be supposed that Congress will deny him the 
 privilege of establishing, if he can, a clearly legal 
 demand, arising out of a recorded contract which, 
 while it benefited the Government, resulted in his own 
 ruin." 
 
 To show the spirit in which Mr. Barker labored to 
 serve his country, we here insert an incident that oc- 
 curred at the time. An esteemed friend and relative 
 of Mr. Barker, but opposed to the war, remonstrated 
 with him against the imprudence and risk of taking 
 these war loans, and, among other things, said, "Jacob, 
 the Government itself may be so embarrassed with 
 this ruinous and expensive war that it will not be able 
 to pay, and fail or break down before the war is ended." 
 To which he replied, "If Government fails, I am will- 
 ing to fail with it. Property and every thing else are 
 of little or no consequence compared to the success of 
 my country. I am willing to risk every thing I have for 
 her." These were the utterances of his full heart, 
 made in the privacy of his own home, but afterwards 
 made public through those who heard them. 
 
 Mr. Barker's claim, however, has never yet been 
 allowed, and may never be. Still, he has pressed it 
 through all the tortuous windings of official resistance, 
 in Congress and in the Court of Claims, up to the pre- 
 
46 INTRODUCTION. 
 
 sent hour. And before the latter tribunal, where he 
 has stood alone in its advocacy, the efforts of the old 
 man of fourscore stand as a monument of skill, power, 
 and perseverance without a parallel in our history. In 
 all this he now seeks the awards of justice, not so much 
 for their pecuniary value, but because they w*ould 
 furnish a public recognition of his services on the part 
 of his country, and thus gratify the proudest wish of 
 his heart. The righteous judgment of posterity, as far 
 as it may look into the case, will allow the validity of 
 his claim, and of his arguments in support of it; while 
 none can fail to admire his noble patriotism, and his 
 unequalled aid to his country, amounting almost to its 
 salvation. But so it is, that the best friends of the 
 republic, the purest patriots, are too often rewarded 
 with neglect and injustice. 
 
 Whilst those who, in the present war, furnish aid to 
 the Administration, favored though they be by abound- 
 ins: wealth and the facilities of contracts and other 
 means created by the war itself, are lauded and honored 
 as patriots of the first water, what praise is due to him 
 who, when money was scarce, banks were few, opposition 
 strong, enemies bitter, friends few, gave of his own 
 means, and by the most persevering efforts induced 
 others to loan to the Government? — and when, too, but 
 for the money furnished by him, the war must have 
 flagged, England must have been triumphant, America 
 must have bowed submissively and licked the dust be- 
 fore the might of her conquering foe. Jacob Barker 
 should be remembered as long as the "War of 1812 is 
 remembered, and his name should be inscribed on the 
 escutcheon of his country as one of her noblest sons 
 and most patriotic citizens. 
 
INTRODIJCTIOX. 47 
 
 His monetary transactions with the Government had 
 led him to a deeper study of the principles, as well as 
 the practical ' working, of finance and credit. And 
 while still carrying on an immense outside business, 
 he was, through the Exchange Bank and his large 
 speculations in stocks, fast reaching the point to which 
 his genius, and perhaps his ambition, pointed, of be- 
 coming the chief regulator of the monetary affairs of 
 the country. This success stimulated the jealousy of 
 his enemies. 
 
 His private bank was strenuously opposed in Wall 
 Street. A suit was brouo;ht ao;ainst him for violation 
 of the Restraining Act, which resulted in his favor. 
 Alarm was created about his circulation and deposits, 
 but these wer^ quieted by the promptness with which 
 he met every demand ; yet a law was passed extending 
 the restraining law to individuals as well as associations. 
 This, together with the opposition to his banking busi- 
 ness and the failure of his Liverpool house, the latter 
 resulting from unfortunate business-complications caused 
 by his partner there, overthrew his bank. Depositors, 
 however, were paid, and his entire circulation redeemed. 
 An illustration is found in a story told by Grant 
 Thorburn, who says, after the failure of Mr. Barker's 
 bank, a poor widow having a ten-dollar bill of this 
 bank in her hands, came into his store, crying and 
 making a great ado. He informed Mr. Barker, whom 
 he knew well, of the fact, and he instantly cashed the 
 bill and relieved the widow, as Mr. Thorburn says, 
 "like an honest man." 
 
 After the failure of the Exchano-e Bank, he availed 
 himself of the use of many chartered institutions in 
 other States, and, from the magnitude of his wide-spread 
 
48 INTRODUCTION. 
 
 operations, was supposed to have tlie control of un- 
 limited capital. 
 
 Although an active politician, he had never been am- 
 bitious for office or sought political distinction. Yield- 
 ing, however, to the wishes of his friends, he was 
 elected by a large majority to the State Senate. In 
 the discharge of his senatorial duties he displayed the 
 same qualities that characterized him everywhere. 
 Bold, fearless, and independent, and with a high sense 
 of his responsibility, he did not fail to justify the fore- 
 sight of those who had made him their representative. 
 
 As Senator, under the usage then existing, he was 
 counsellor to the Governor on appointments to office in 
 his district. He unavoidably gave offence to many, 
 who solicited, but did not obtain, his recommendation. 
 A member of the Court of Errors also, as then con- 
 stituted, he differed in opinion with Chancellor Kent 
 in an insurance case. They were the only opinions re- 
 ported in the case. ^'The chancellor contended that, 
 if the master intended to deviate from the voyage as 
 stated in the policy, the insurance was forfeited; and 
 Mr. Barker, that forfeiture should only follow upon 
 actual deviation." The court sustained Mr. Barker's 
 opinion by a vote of 15 to 8 ; and this decision has 
 been a law on the subject, in England, France, and 
 America, ever since. Mr. Barker differed with his 
 fellow-members of the Senate in regard to some points 
 in the duelling-law then passed; and it is not a little 
 singular that he was the first, and probably the only, 
 person who ever felt its penalty. It was subsequently, 
 however, amended in conformity to his original views. 
 The questions of banks and canals were then domi- 
 nant, — Mr. Barker insisting on specie payments by 
 
INTEODUCTION. 49 
 
 the banks, as a condition of their charters, and favoring 
 the Erie Canal, always ascribing the honor of it to 
 De Witt Clinton. 
 
 At his own expense, Mr. Barker established the 
 " Union" newspaper in New York, for the purpose of 
 advocating the re-election of Governor Clinton. Mr. 
 Crawford was at this time the prominent candidate for 
 the Presidency, with General Jackson, Mr. Clay, and 
 Mr. Adams. General Jackson's friends were unwilling 
 to drop him for Mr. Crawford, as Mr. B. advised, and 
 Mr. Crawford's supporters equally unwilling to desert 
 him: so the question went to Congress, and Adams was 
 elected. At a public meeting subsequently held in 
 New York, presided over by Mr. Barker, General Jack- 
 son was nominated for the Presidency, with Chief-Jus- 
 tice Spencer for the Vice-Presidency. Mr. Van Buren 
 with his friends cordially came into this arrangement, 
 and Jackson was elected. The subjects of the currency 
 and the United States Bank were now strongly exciting 
 the public mind ; and in such questions a man like 
 Mr. Barker could not but take a deep interest. He pre- 
 pared and submitted to President Jackson a plan for a 
 national bank, which the latter promised to sign should 
 it pass into a law by the sanction of his leading friends 
 in Congress. The pet-bank system, however, was sub- 
 stituted for the United States Bank, and its failure 
 called out the celebrated Specie Circular. 
 
 We will now go back and glance at a few other 
 events that occurred in the life of Mr. Barker, just 
 antecedent to the trials which constitute the special 
 subject of the present volume. 
 
 Some of Mr. Barker's friends, through his agency, 
 bought upamajority of the stock of the North Biver Bank, 
 
 5 
 
50 INTEODUCTION. 
 
 ■whose incunilbent directors had paid for much of it with 
 money borrowed from the bank itself. The new stock- 
 holders designed to supersede them by men of their 
 own choice, but failed through the conduct of packed 
 inspectors of election, who declared the incumbents 
 elected. This election was, however, set aside by the 
 Supreme Court. One of these directors, a Mr. Rogers, 
 was very abusive, and, as Mr. Barker thought, grossly 
 insulted him. Mr. Barker demanded "the reparation 
 due from one gentleman to another," and expected, 
 through a friend, to obtain it by a suitable acknowledg- 
 ment and amicable settlement; but, instead, he found 
 himself prosecuted for sending a challenge in violation 
 of statute. The cause was tried, and he convicted ; the 
 jury having resolved, contrary to all right and to the 
 spirit and intention of jury trials, that the verdict should 
 be ''guilty," or "not guilty," according as three-fourths 
 of their number voted. He pleaded his own cause, and 
 asked for a new trial, chiefly on the ground of the 
 illegal procedure of the jury and the unconstitution- 
 ality of the law against duelling. But the court decided 
 against him, and he was subjected to the disabilities of 
 the law. These were, however, removed by Governor 
 Clinton; and his restoration to citizenship called forth 
 the congratulations of his friends. 
 
 The failure of the Life and Fire Insurance Com- 
 pany and other incorporations in New York now 
 involved Mr. Barker in the most serious and painful 
 difficulty of his life, and one which called for the dis- 
 play of those high qualities of energy, promptitude, and 
 sagacity which he possessed in so eminent a degree. 
 The failure of these institutions was ascribed to fraudu- 
 lent transactions on the part of many of their leading 
 
INTRODUCTIOIT. 51 
 
 directors. The communitj, embracing all classes who 
 had suffered by these failures, were highly excited and 
 exasperated, and the consequence was that criminal 
 prosecutions were commenced against the supposed 
 authors of these calamities, and indictments were found 
 bj the Grand Jury. In these first proceedings Mr. 
 Barker was not included. But his enemies, taking ad- 
 vantage of his connection, directly or indirectly, with 
 many of the institutions referred to, conspired to pro- 
 cure his downfall and his ruin. The opportunity was 
 rare and tempting, and the combined and powerful 
 influence of the moneyed aristocracy and his old poli- 
 tical enemies, led on by Hugh Maxwell, the Prosecuting 
 Attorney, made-him the chief object of prosecution and 
 persecution, and, by a trick and injustice, succeeded in 
 including him in a second indictment obtained from the 
 Grand Jury. 
 
 This brings us up to the period included in the dis- 
 closures forming the sj)ecial subject of the present 
 volume, w^hich we leave to speak for themselves and 
 tell their own story to the reader. These Conspiracy 
 I Trials, so far as Mr. Barker was concerned, in the 
 method of their inception, the manner and circum- 
 stances connected with their prosecution, and their final 
 results, constitute one of the most remarkable events in 
 the judicial history of the country. It is a strange and 
 stai'tling spectacle to behold a citizen, high in position 
 and influence, struggling in the toils of an unrighteous 
 combination, dragged before the tribunals, and, upon 
 the sacred altar w^here alone victims are slain at the 
 mandate of impartial justice, sacrificed to appease the 
 wrath of personal foes; while those wearing the em- 
 blems of authority and ministering at that holy altar 
 
52 INTRODUCTION. 
 
 lend themselves as tlie instruments of injustice and wrong. 
 But who can fail to admire the perseverance and manly 
 bearing of him who, conscious of innocence and strong 
 in his belief of ultimate justice and the triumph of 
 truth, stood forth boldly in his own defence, and pleaded 
 his own cause at the bar of the law, — and put it in so clear 
 and strong a light as to call forth the admiration of the 
 ablest lawyers and the sanction of some of the highest 
 and purest judges in the State ? The verdict of the 
 present generation, and of posterity, will doubtless be 
 in his favor. In closing our allusions to these trials, 
 we will here take occasion to correct a prevalent but 
 erroneous opinion in respect to Mr. Barker's connec- 
 tion with certain of those rotten institutions. He had 
 nothing whatever to do with the Marble Manufacturing 
 Company, Hudson Bank of Jersey City, Jefferson 
 Insurance Company, nor with the managenient of the 
 Eranklin Bank, and he had no dealings with Malapar 
 & Pride, — all of which are attributed to him by the 
 author of a work lately published, entitled "The Old 
 Merchants of New York." These errors are but a 
 specimen of the many misrepresentations which have 
 from time to time been published concerning Mr. 
 Barker, both in reference to the Conspiracy Trials and 
 to other events of his life, which not only justify the 
 present publication, but would seem to call for a full 
 history of the life of a man whose name is so often 
 found in the public prints. 
 
 The failure of his Liverpool house and of his Ex- 
 change Bank, together with the previous loss of his 
 vessels during the war, his trouble with the Govern- 
 ment, and the consequent immense loss to him, and 
 now the further losses and embarrassments caused by 
 
INTRODUCTION. 53 
 
 the Conspiracy Trials, had reduced Mr. Barker from 
 the pinnacle of financial power to a state of compara- 
 tively moderate means. Once he had employed some 
 twenty clerks in his banking and other business, — many 
 of whom, profiting by his example and teachings, have 
 since risen to leading positions in financial and com- 
 mercial circles. Now his bank was gone, and his 
 other business was contracted within narrow limits. 
 His spirit, his talent, his health, remained, and he 
 cowered not before the dark dealings of Providence. 
 
 Subsequently to these Conspiracy Trials, some mort- 
 gages on Louisiana plantations, received by the Life 
 and Fire Insurance Company, led him to New Orleans, 
 which he made his home and where he has ever since 
 resided. Here we might turn a new leaf and inscribe 
 a new history in the life of Mr. Barker. But such an 
 attempt would be a departure from the original purpose 
 of this Introduction. That pleasing task, in its inte- 
 resting details, must be left to his biographer. Yet it 
 would be too abrupt a termination of these sketches, 
 and might disappoint the expectation of the reader, if 
 we should stop here, with no mention whatever of the 
 subsequent passages in his life, extending over a period 
 of time equal to the ordinary business-life of most 
 men. What a wonderful instance of preserved and 
 recuperative energy, to see a man who had lived more 
 than half a century of incessant toil, having achieved 
 the highest results of successful enterprise, when 
 stricken down by misfortune, rally again, and in a new 
 field, by thirty years of renewed labor, regain and 
 maintain his lost position ! Such has been the life of 
 Jacob Barker in New Orleans. 
 
 On his first arrival in New Orleans, whither he had 
 
 6* 
 
54 INTRODUCTION. 
 
 gone only for the purpose of looking after the mort- 
 gages referred to above, he was admitted by the 
 judge to appear, ex gratia^ in the United States Dis- 
 trict Court, as counsel in the argument in the suits 
 brought on these mortgages. This privilege, however, 
 was withdrawn, and, the suits being put over, Mr. 
 Barker set himself to work to prepare for admission to 
 the bar, in order to be able to manage these cases. He 
 w^as rejected on his first examination; but, nothing 
 daunted, he renewed his studies with double diligence, 
 and very soon presented himself to the Supreme Court, 
 and, after a second examination, was admitted to the 
 bar. In the departments of commercial and maritime 
 law, to which he specially devoted his attention, he held 
 a high place among the most distinguished members of 
 the profession. 
 
 But, not liking the restraints of court practice and 
 the petty competitions of litigation, he abandoned the 
 regular practice of the law, and entered into other pur- 
 suits, more congenial to his tastes and earlier habits. 
 New Orleans, as the great mart of Southern trade and 
 commerce, presented a rich field for enterprise and 
 adventure ; and Mr. Barker, with his large experience 
 and all the forces of his restless nature, soon identified 
 himself with its mercantile and financial business and 
 progress. There, too, he has always taken an active 
 part in politics, and through the press and on the 
 rostrum he has caused his opinions to be heard and 
 felt. He has ever adhered to the well-considered poli- 
 tical opinions of his earlier life, and, while he has never 
 yielded himself to the promotion of mere party ends, 
 few men have contributed more to the formation of a 
 correct public opinion on political- questions. 
 
INTRODUCTION. 55 
 
 On the Slavery question he inherited the opinions 
 and feelings of the Quakers, from whom he sprung. 
 And his practical efforts for the benefit of the colored 
 race among us, eminently entitle him to the character 
 of a philanthropist. While he has always regarded 
 slavery as an evil, he has ever looked upon the schemes 
 of the Abolitionists of the North as dangerous to the 
 harmony and union of the States and injurious to the 
 best interests of the slaves. He has considered all 
 plans for the amelioration of the condition of the slaves 
 as wrong which were not in harmony with the laws 
 regulating the institution, and the compromises of the 
 Constitution, which guaranteed to the slave-holding 
 States the exclusive right to regulate and control the 
 subject in their own way. On the question of the capa- 
 city of the blacks for the higher w^alks and avocations 
 of life, he has made many and very interesting experi- 
 ments since he has been a resident of the South. He 
 has sent colored youths both to Europe and to the 
 North, with a view to educate and fit them for com- 
 mercial and other occupations in the South, but with 
 very little hopeful result. He has also, as a planter, 
 experimented w^ith free foreign white labor at the 
 South, having sent one of his vessels to Europe and 
 brought over a number of Germans for that purpose ; 
 but the result in this case was such as to compel him to 
 abandon all hope of substituting that kind of labor for 
 that of blacks, on any thing like a large scale, in the 
 present state of things in regard to labor in that region. 
 
 We have spoken of Mr. Barker only as a man of 
 the world. We have presented to view his sterner 
 qualities, as he appeared with his harness on, a fast 
 and earnest worker in the great human hive. But 
 
56 INTRODUCTION. 
 
 there is anotlier aspect of his character, as exhibited 
 in social life. No one was ever more warm-hearted 
 and genial ; and his personal friendship, when once be- 
 stowed, could only be lost by the unworthiness of its 
 * object. This friendship expressed itself, not in sen- 
 timent alone, but by substantial proofs, whenever occa- 
 sion offered. Were we permitted to lift the veil from 
 off the sanctuary of home, and show Mr. Barker in the 
 midst of his family, he would there be seen in those 
 lights and shades which bring out in strongest outline 
 the mdst winning and attractive features of his cha- 
 racter. There he has not only sought repose and 
 relaxation from his many cares and labors, but, as the 
 central orb, shed light and happiness upon all. Nor 
 were his sympathies and influence restricted to his 
 household and the members of his immediate family. 
 His feelings took a wider range, and the welfare of all 
 who bore his name or in whose veins was found his 
 ancestral blood has always been the object of his solici- 
 tude and care. But these portraitures of his domestic 
 and social life must be painted on a broader canvas 
 than the limits of these sketches will afford. 
 
 At the outbreak of the present civil war, Mr. Barker 
 expressed his fears for the safety of the Constitution 
 and the Union. He was born before they were formed, 
 and has lived through all their history, contributing 
 largely to their maintenance, and illustrating in his life 
 and fortunes their beneficence and value. With un- 
 tiring and anxious vigilance he has watched the progress 
 of events, and with voice and pen has given his coun- 
 sels to his countrymen. He threw himself boldly into 
 the breach; but neither the voice of age nor the warn- 
 ings of patriotism could stay the fatal tide of rebellion. 
 
INTEODUCTION. 57 
 
 He lias differed in opinion with the Administration in the 
 radical measures adopted for suppressing the rebellion, 
 believing them to be in violation of the Constitution 
 and subversive of the rights and sovereignty of the 
 States, and annulling those constitutional guarantees 
 without which the Union would never have been formed, 
 and to the observance of which the good faith and 
 honor of the nation are sacredly pledged. These opi- 
 nions he has freely and boldly expressed; and in order 
 to diffuse them more widely, and to reproduce, for the 
 public benefit, his political opinions published at an 
 earlier period, he started and edited the "National 
 Advocate," the publication of which was several times 
 suspended by military authority. At length, not being 
 willing to submit to the annoyance of a military censor- 
 ship, he stopped its publication. But he still holds to 
 his opinions, and stands fast by his loyalty to the Con- 
 stitution and the Union. 
 
 It is a pleasing reflection, with which we close these 
 brief sketches, that Jacob Barker now, as he approaches 
 the close of a long, active, and eventful life, is found in 
 the enjoyment of comfort and prosperity, and to know 
 that without that justice which should have been done 
 him by the Government of the United States, which of 
 itself would have given him an ample competency, he 
 has been enabled to recover his fortunes, and gladden 
 his own heart and the hearts of his friends by the pos- 
 session of every means of tranquillity and happiness. 
 
 As a type and representative of a class which has 
 sprung from the bosom of our great commercial com- 
 munities, those who, while they determine and control 
 the operations of trade and finance, at the same time 
 make themselves felt in the affairs of Government and 
 
58 INTRODUCTION. 
 
 politics, as well as the general progress of society, 
 Jacob Barker never had his equal in America. An 
 analysis of his mental and moral constitution, as ex- 
 hibited in the ordinary affairs of life, and especially in 
 more trying and difficult emergencies, would show a 
 wonderful balance and harmony of faculties and powers, 
 not, however, unaccompanied by occasional eccentrici- 
 ties, caused by the preponderance of a controlling self- 
 will. Unselfish and self-reliant, he often suffered loss 
 and defeat of his plans by a too hasty expression of his 
 convictions, and in reliance upon his own schemes in 
 matters where ordinary men would have sought success 
 through associated and organized efforts. His quickness 
 of perception and soundness of judgment, combined with 
 his impatience and impulsiveness of character, some- 
 times caused him to rely upon his own powers alone, 
 and move in advance and independently of that organ- 
 ized co-operation which in certain cases is necessary to 
 make success attainable. But it was this independence, 
 clearness of judgment, and evident unselfishness of 
 purpose, which gave his opinions so much weight with 
 such men as Madison, Hamilton, Clinton, and others 
 of high distinction. His mental powers were backed 
 up and sustained by the highest physical courage, — a 
 quality essential to true greatness in all the active con- 
 cerns of life. In trying emergencies, where men of 
 mere intellect often fail, he had the facility to command 
 and make available, on the instant, all his powers and 
 resources ; and with an impassive self-possession which 
 nothing could disturb, and a clear-sighted comprehension 
 of the difficulties to be overcome, he could meet and 
 master the occasion. Readiness, promptness, and energy 
 of character have marked every important act of his life. 
 
INTRODUCTION. 59 
 
 While his plans, whether of business or otherwise, have 
 been characterized by breadth of scope and general 
 purpose, they have been wrought out and developed 
 with the most studied regard to minuteness of detail. 
 It was in thus combining the synthetic with the analytic, 
 in the elaboration of his plans, that he eminently ex- 
 celled. He had the rare facility of attending to many 
 important things at the same time; and, while each 
 separately seemed to engross his full powers, all were 
 equally cared for. He was endowed with a physical 
 organization and possessed a strength of constitution 
 which gave him vast power of endurance and enabled 
 him to perform an immense amount of intellectual labor. 
 By habits strictly temperate, and abstinence from all 
 wasting indulgences, he has preserved the vigor of his 
 health and his strength of intellect up to the present 
 time. And now, in the eighty-fifth year of his age, 
 still erect, with a beaming eye and a bland expression, 
 he stands at the post of duty and of labor. Such a 
 man as Jacob Barker will never cease from labor, or 
 desire rest, till he finds it in the final resting-place of 
 all. 
 
 With such powers and faculties, Jacob Barker would 
 have distinguished himself in any business or profession. 
 He was eminently fitted for the part he has borne in 
 life. He has made his mark on the times in which he 
 lived. His memory will live in the time to come. 
 
 R. D. TUENER. 
 NettYoek, May 10, 1864. 
 
A CHAPTER 
 
 IN THE 
 
 LIFE OF JACOB BAEKER. 
 
 CHAPTER I. 
 
 IXSURANCE-COMPANIES. 
 
 Mr. Jacob Barker commenced his career under tlib 
 administration of John Adams, took an active part in 
 the election of Thomas Jefferson, and in opposition to 
 the Alien and Sedition law. 
 
 At this time there were but few banks at New York. 
 Their influence was so great that it was very difficult to 
 procure bank-charters. Their directors, and nearly all 
 the men engaged in foreign commerce, espoused the cause 
 of the Federalists. Mr. Barker's energy, activity, and 
 influence among the mechanics and laborers, very many 
 of whom were employed in and about his numerous 
 ships, invoked the hostility of what was then considered 
 the British party, insomuch that he found it very diffi- 
 cult to obtain bank-facilities. This determined him to 
 establish a free bank in Wall Street. This institution 
 was bitterly opposed by the said party. Notwithstand- 
 ing their newspaper and town-meeting opposition, it 
 succeeded well, when they brought a suit against him, 
 alleging that the operations of his bank were in oppo- 
 sition to the provisions of the restraining bill, which 
 subjected it to a long and tedious litigation, which re- 
 
 6 61 
 
62 LIFE OF JACOB BARKER. 
 
 suited in establishing his right to bank without a 
 charter. 
 
 The next move was to send men to the legislature 
 who would get a law passed inhibiting it, — in which they 
 succeeded ; and, although he was compelled to wind up 
 the concerns of this bank, his opponents had to yield 
 what they considered their prerogative to confer bank- 
 facilities on their favorites with impunity. The idea 
 of free banking had taken such deep root that a perfect 
 system was finally legalized. In consequence, there 
 are now more than fifty banks in the city of New York. 
 
 Mr. Barker having to seek new occupation, and con- 
 sidering that guaranteeing the payment of debts for 
 merchandise sold promised great profits, he organized 
 the Mercantile Insurance Company of New York, under 
 the management of a wealthy set of directors, for con- 
 ducting that business, issuing bonds payable at distant 
 periods in exchange for commercial paper and other 
 securities, receiving compensation therefor, always dis- 
 counting such bonds at seven per cent, per annum, 
 which greatly facilitated the vendors on long credit in 
 converting their merchandise into money. 
 
 This business succeeded well, furnishing capital as 
 well as profit ; and so prudently and skilfully was the 
 business managed, that the bonds of this company 
 always commanded the money in Wall Street at or 
 under seven per cent, per annum, — the lawful interest 
 of New York. 
 
 Henry Eckford, Esq., one of the directors of the said 
 company, was so well pleased with the operation of this 
 new business, that he informed Mr. Barker that if he 
 had not any objection he would resign as such director 
 and establish an institution to do the same description 
 
LIFE OF JACOB BARKER. 63 
 
 of business. Mr. Barker's reply was, that he could 
 not object to his doing what every other man had a 
 right to do. 
 
 Application was made to the legislature, and an act of 
 incorporation granted, entitled Life and Fire Insurance 
 Company. The parties interested in this business were 
 not allowed for any length of time to monopolize what 
 was generally considered to be a very profitable busi- 
 ness. Many other companies sprung into existence, 
 intrusted to the management of incompetent men, flood- 
 ing the market with bonds, without capital to meet them 
 in the event of defalcation in the payment of the notes 
 and other securities received in exchange for the bonds 
 issued. The consequence was, a great depreciation in 
 the market-price of the bonds. Mr. Barker, with the 
 consent of the directors with whom he was associated, 
 set about retiring the bonds of the three companies with 
 which he was connected, investing their spare funds in 
 life and fire bonds, for the payment of which Mr. Eck- 
 ford gave them written guarantees. 
 
 CHAPTER II. 
 
 NORTH RIVER BANK. 
 
 While this business of the insurance-companies was 
 progressing, a number of wealthy citizens purchased, 
 through Mr. Barker, a majority of the stock of the 
 North River bank. This alarmed the directors very 
 much. Most of them held their stock by virtue of stock 
 
64 LIFE OF JACOB BAEKER. 
 
 notes. One of tlie number, — David Rogers, — in the 
 hope of prejudicing Mr. Barker with his associates and 
 breaking up the opposition, took occasion to insult him 
 on the Exchange so grossly that he felt called on to 
 leave without a word of reply, immediately writing and 
 delivering to him a letter in words following : — 
 
 '' New York, January 29, 1822. 
 "Sir: — You having without the least provocation 
 grossly injured me, you are hereby required to make 
 such reparation as is due from^ one gentleman to an- 
 other. 
 
 " The friend that I expected to deliver this being ab- 
 sent for the day, he will call on you to-morrow, or very 
 soon thereafter, for your answer, &c. 
 
 "Your obedient servant, 
 
 "Jacob Barker. 
 "Mr. David Rogers." 
 
 Mr. Barker was under an en2^a2:ement to dine with a 
 friend in company with a number of gentlemen, several 
 of whom, including the host, were present at the Ex- 
 change when Rogers made the assault. At the dinner- 
 table the host said, "Jacob, we were much disappointed 
 at the tame manner you submitted to the grave insult 
 of Mr. Rogers." 
 
 Mr. Barker's reply was, "On sudden emergencies the 
 mind is not always prepared to do the best thing." 
 Here the conversation dropped. 
 
LIFE OF JACOB BARKEK. 65 
 
 CHAPTEE, III. 
 
 CHIEF-JUSTICE SPENCER'S OPINION. 
 
 The election of directors of tlie i!^ortli River Bank 
 came on. Inspectors were appointed to sustain the sit- 
 ting memb-ers. To make sure of this, one of their mem- 
 bers resigned and was appointed inspector, the farce of 
 an election was gone through, and the sitting members 
 declared to have been re-elected. These proceedings 
 were set aside bj the Supreme Oourt, which rendered a 
 decree in words following : — 
 
 *'In Supreme Court, August Term, 1822. 
 
 ^ Tlie people of tlie State of New York, at the relation of Jacob 
 
 '^Barker and otliers, 
 
 "against 
 
 ^'Ahram B. Mead and others, 
 
 ^'Samuel A. Talcotty Attorney-General of the people 
 of the State of New York, moved on Tuesday, the eighth 
 instant, for leave to file an information in the nature of 
 a quo warranto against the defendants above named, 
 who claim to be directors of the North River Bank of 
 the city of New York. This motion was founded on a 
 bill in chancery recently filed against the defendants 
 and others by James D. P. Ogden, Jacob Barker, and 
 others, and on the answers to that bill, and also on an 
 affidavit showing that the relators above named are 
 stockholders in the North River Bank. 
 
 6* 
 
6Q LIFE OF JACOB BARKEE. 
 
 *' On Friday Chief- Justice Spencer, delivered the 
 opinion of the court, to the following efi'ect : — 
 
 '''These applications being generally found on the 
 ex parte affidavit of the relators, it has of late years, 
 been usual in the English court of King's Bench and 
 in this court to afford the defendant an opportunity of 
 being heard against granting leave to file the informa- 
 tion. A rule to show cause is, therefore, generally en- 
 tered, and leave is afterwards granted or refused, as 
 circumstances shall appear upon the cause shown. In 
 the present case the application is for leave to file the 
 information in the first instance. There is no doubt 
 that the court are bound to exercise a reasonable dis- 
 cretion on the subject; and this cause comes before us 
 in a manner so peculiar, that w^e think it proper to 
 except it from the general rule. The application does 
 not rest upon a mere ex p«?'fe affidavit. The evidence 
 placed in our hands comes from the defendants them- 
 selves, or from a source most favorable to them. Wo 
 have the sworn answers of the defendants to a bill in 
 chancery, filed in relation to the very election com- 
 plained of. We have also the answers of the inspectors 
 of that election. Upon a rule to show cause, nothing 
 could be alleged by the defendants against granting 
 leave to file the information which is not already urged, 
 on their part, in the papers presented to the court. 
 We have looked into the answers, and we find the de- 
 fendants and the inspectors admitting a state of facts 
 which not only render it proper to grant leave as ap- 
 plied for, but which seem to us imperiously to require it 
 at our hands. To give time, under such circumstances, 
 would be an abuse of the discretion vested in this court. 
 We will briefly advert to a part of the case as admitted 
 
LIFE OF JACOB BARKER. 67 
 
 by the defendants and inspectors. A controversy ex- 
 isted among the stockholders of the bank, a portion of 
 ■whom were desirous to effect a change in the direction. 
 A few days before the election, a by-law was passed by 
 the board of directors, of which board most of the de- 
 fendants were members and then present, authorizing 
 any stockholder to cheJlenge the votes offered at the 
 election, and, if supported by affidavits or other pro- 
 bable cause, to the satisfaction of the inspectors, that 
 they might then require the person whose vote should 
 be challenged to make, on oath, answer to the cause of 
 challenge, the sufficiency of which should be determined 
 by the inspectors ; and if such oath was refused, that 
 the vote should be rejected. Under this by-law, votes 
 given upon the proxies of several persons who appeared, 
 from the books of the bank and the certificates of the 
 cashier, as stockholders to a large amount, were chal- 
 lenged on the ground that the persons in whose names 
 the stock stood, and who held the certificates of the 
 bank, were not the exclusive owners, but that some 
 third person or persons had an equitable interest therein. 
 This was considered by the inspectors as good cause of 
 challenge ; and the persons whose proxies were thus ob- 
 jected to were required, notwithstanding the most urgent 
 remonstrance to the contrary, to make affidavits in wai- 
 ting, in answer to these allegations, and to answ^er, under 
 an oath prescribed by men who did not themselves act 
 under the solemn obligations of an oath, to va^rious 
 verbal interrogatories, and to submit to a sort of in- 
 quisitorial examination, at variance with the funda- 
 mental principles of our civil and political institutions, 
 at the pleasure of the inspectors. In this manner votes 
 upon a great number of shares were entirely disregarded 
 
68 LIFE OP JACOB BARKER. 
 
 by the inspectors. It is evident, from the answers, that 
 if all the votes received into the hands of the inspectors, 
 from persons duly authorized to give such votes, had 
 been estimated by the inspectors, that the result would 
 have been different from that declared by the inspectors ; 
 as, in such a case, the persons whose seats are now 
 contested could not have been certij&ed to have been 
 elected. 
 
 "'Without entering any further, at this time,' say the 
 Court, 'into the facts disclosed, we are unanimously of 
 opinion that the by-law and the proceedings under it at 
 the election were most illegal and reprehensible. The 
 act of incorporation provides That each stockholder shall 
 be entitled to one vote on each share of the stock of the 
 bank which he shall have held in his own name at the 
 last fourteen days previous to the time of the voting. 
 [Sess. 4:4c, cJi. 146, § 8.) Further than this the inspectors 
 had no right to inquire, as it was not competent for the 
 directors to pass any by-law at variance with the positive 
 provisions of the act incorporating the bank. We there- 
 fore feel ourselves called upon to grant the motion, more 
 especially as the statute contemplates, in cases of this 
 sort, the most speedy and effectual proceedings which a 
 due regard to the rights of parties and the proper admi- 
 nistration of justice will permit.' 
 
 "Leave was granted to file the information instanter." 
 
 ' The letter was delivered to Mr. Rogers on the day of 
 its date, one hour after the insult was offered at the Ex- 
 change. No reply being received, — Lieutenant Allen 
 being engaged at the Navy Yard, Long Island, — John 
 Wells, Esq., the friend of Mr. Barker, on the following 
 day called on Mr. Rogers, to know if he would make 
 
LIFE OP JACOB BARKER. 69 
 
 such explanations as Mr. Barker could consistently be 
 satisfied with, — offering, at the same time, to furnish 
 such information as would satisfy Mr. Rogers that he 
 was totally mistaken in the opinions he had expressed, — 
 when Mr. Rogers declared his willingness to see Mr. 
 Barker on the subject, which, being proposed to him, 
 he promptly agreed to see Mr. Rogers in the presence 
 of Mr. Wells and a friend on the part of Mr. Rogers, 
 but objected to seeing him alone; whereupon Mr. Wells 
 wrote the following letter, which was delivered to Mr. 
 Rogers on the evening of its- date : — 
 
 " January 30, 1822. 
 
 "Dear Sir: — I have seen Mr. Barker, who begs that 
 you would name as early a time and place as possible at 
 which he can see you, in presence of myself and a friend 
 on your part, that he may have an opportunity of making 
 the fullest explanation of his affairs. I have a private 
 ofl&ce in my house (35 Murray street), which is entirely 
 to your service, or you may appoint any other place. 
 
 "I am, respectfully, your humble servant, 
 
 "John Wells. 
 "Mr. David Rogers." 
 
 On the morning of the 31st January Mr. Seely called 
 on Mr. Wells in behalf of Mr. Rogers, and by his con- 
 versation evinced an indisposition to the proposed inter- 
 view and explanations, and left Mr. Wells, observing 
 that he might hear from him again in the course of one 
 or two days. Nothing further being heard from him on 
 that or the next day, Mr. Wells delivered to Mr. Barker 
 the correspondence, saying nothing was likely to result 
 from his interference. On the evening of that day Mr. 
 Barker wrote the following note : — 
 
70 LIFE OF JACOB BARKER. 
 
 "New York, February 1, 1822. 
 " Sir : — Will you be pleased to send me hj the bearer, 
 mj friend, William H. Allen, a written answer to my 
 note of 29tli ultimo ? 
 
 "Your obedient servant, 
 
 "Jacob Barker. 
 "Mr. David Eogers." 
 
 This letter was delivered by Lieutenant Allen to Mr. 
 Rogers, with the pressing demand of a categorical 
 answer, w^hich was evaded by the plea that the affair 
 was in the hands of Messrs. Wells and Seely, where- 
 upon Mr. Wells wrote the following letter: — 
 
 ** February 5, 1822. 
 "When I saw you last week (Thursday) on the sub- 
 ject of Mr. Rogers and Mr. Barker, on leaving me you 
 said that you would see me again in a day or two : not 
 having since heard from you, or seen you, I consider 
 the business at an end as regards my agency in it. 
 "Very respectfully, your humble servant, 
 
 "John Wells. 
 "Mr. Seely." 
 
 In place of affording the required satisfaction, com- 
 plaint was made to the grand jury, before whom Mr. 
 Rogers testified that Mr. Barker had challenged him to 
 fight a duel, whereupon they indicted him for such an 
 offence. 
 
 The papers the following morning announced the 
 arrest of Mr. Barker, when his friend called on him 
 breathless, before breakfast, saying, "Jacob, Jacob, 
 how could you do so?" Mr. Barker's reply was, 
 " William, you are the last man to call me to account 
 
LIFE OF JACOB BARKEE. 71 
 
 for this proceeding, — you, who publicly accused me of 
 having submitted tamely to an insult at the Exchange, 
 the battle-field of the merchant." 
 
 CHAPTER lY. 
 
 MR. barker's speech — THE TRIAL FOR HAVING SENT A 
 
 CHALLENGE. 
 
 The trial of the alleged offence against the duelling- 
 law came on, when David Rogers testified that he had 
 not ever dealt with Mr. Barker; that, until the North 
 River Bank affair, their acquaintance was so slight that 
 they did not, in passing, recognize each other: that the 
 remarks he made to Mr. B. on the Exchange, of which 
 Mr. B. complained, detailing them, were from informa- 
 tion derived from others; that Mr. B. left the room 
 without saying a word; that in an hour thereafter he 
 handed him the letter of the 29th January; that when 
 he received it he considered it a challenge to fight a 
 duel. Mr. Wells called upon him the following day ; 
 that he considered him the person alluded to in Mr. B.'s 
 letter; that their negotiations were of a pacific charac- 
 ter; that Mr. Seely had, at his request, conferred with 
 Mr. Wells on the subject, without any satisfactory result ; 
 that he received the letter of Mr. B., of the 1st Febru- 
 ary, from Lieutenant William H. Allen; that he had 
 testified before the grand jury that he was sojyry to have 
 been obliged to state the affair to them, that he told the 
 foreman so at the time. 
 
72 LIFE OF JACOB BARKER. 
 
 Mr. Wells, a witness on the part of the prosecution, 
 testified: — That on the occasion Mr. Barker called on 
 him his feelings appeared to be strongly excited, and 
 detailed the occurrence at the coffee-house; having, in 
 the course of professional duty, had an opportunity of 
 knowing the affairs of defendant- for several years, be- 
 lieved that an amicable arrangement might be made if 
 Mr. Barker had an opportunity of explaining his affairs 
 to Mr. Rogers ; witness, with Mr. Barker's consent and 
 concurrence, called on Mr. Rogers on the 30th January ; 
 had a conversation with him, and requested of him to see 
 Mr. Barker and hear an explanation of his affairs, and 
 told him that Mr. B. had been injured by what had 
 occurred at the coffee-house, and explained to him his 
 views, saying that from the character the witness had 
 ever understood that he (R.) sustained, he was led to 
 believe, that if he was convinced that Mr. B. was really 
 injured by any remarks he had made, he would not 
 hesitate to say so, or words to that effect ; to which Mr. 
 Rogers assented, or said certainly, promising to send a 
 friend to confer with him. Mr. Seely called upon witness 
 in behalf of Mr. Rogers ; they had some conversation and 
 correspondence, from which no satisfactory result being 
 probable, Mr. B. was notified thereof, and the corre- 
 spondence delivered to him; that the part he took in 
 the affair was wholly of a pacific nature. Witness 
 added, in reference to the Exchange Bank notes, that, 
 from his knowledge of the defendant and his business, 
 the money would be paid for them, if Mr. Barker had 
 it, as freely as the rain had ever fallen from the 
 heavens. ^ 
 
 The district attorney called Mr. Halleck and other 
 friends of Mr. Barker, in the expectation of establish- 
 
LIFE OE JACOB BARKER. ■ 73 
 
 ing from his confidential conversations what he meant 
 Mr. Rogers should understand from those letters. 
 
 M. M. Noah, a witness for the prosecution, stated 
 that defendant had called on him to publish the corre- 
 spondence, which he had declined. 
 
 James Orum, also a witness for the prosecution, stated 
 that he had printed the pamphlet in evidence at the 
 request of the defendant, but not a word was elicited 
 from any witness going to show that Mr. Barker had 
 undertaken to interpret his letters as meaning a 
 challenge. 
 
 The cause was ably summed up by Thomas Addis 
 Emmit and Joseph Ogden Hoffman, Esqs., on the part 
 of the defendant, and by Messrs, Maxwell, Benner, and 
 Price, on the part of the prosecution, and given to the 
 jury, who, on retiring, agreed that a vote should be 
 taken and a verdict rendered "guilty" or "not guilty," 
 according as three-fourths of the twelve jurors should 
 decide. The vote resulting against the defendant, the 
 yerdict was rendered in accordance therewith. 
 
 CHAPTER y. 
 
 A NEW TRIAL ASKED FOR MR. BARKER'S SPEECH. 
 
 On the hearing of the motion for a new trial, he ap- 
 peared without counsel and reviewed the whole case 
 very elaborately, saying that he did not complain so 
 much of the verdict as of the manner in which it was 
 
 agreed upon ; that it was subversive of the whole doc- 
 
 7 
 
74 LIFE OF JACOB BARKER. 
 
 trine of jur j-trial, substituting the will of a portion for 
 that of a unanimous vote. 
 
 The recorder remarked, "Had this been proven by 
 legal testimony, we have no hesitation in saying that 
 the objection would be fatal. You brought the decla- 
 rations of jurors to prove that the jury agreed that if 
 nine of the panel should unite in a verdict the other 
 three should fall in and find with them. Such conduct 
 would, undoubtedly, be reprehensible, and this court 
 takes this occasion to say that nothing would be more 
 alarming than for our jurors to adopt such a method of 
 making their verdicts. You have only the proof vrhich 
 some of the jury themselves gave ; and it is a well-settled 
 point that a juryman cannot be heard to disparage^ his 
 own verdict." 
 
 Mr. Barker responded; "My objections to the con- 
 duct of the jury being overruled by your honor, I shall 
 not press that matter further than to say, that when 
 judgment shall be passed, I do hope the irregularity 
 will not escape unnoticed ; that there may not, at least, 
 be a recurrence of a practice fraught with such incalcu- 
 lable mischief, and which must impress with awe every 
 member of a community whose life, honor, liberty, or 
 fortune may, in its turn, become the sport of chance. 
 
 "I will proceed to show that the verdict was not 
 supported by the evidence ; the charge of offence against 
 the common law not having been sustained by legal 
 proof, and so ruled by your honor. I shall devote my 
 attention more particularly to the law of the State, 
 which I consider to be unconstitutional, and to some of 
 the remarks of the opposing counsel." 
 
 Mr. Barker handled those gentlemen with great 
 freedom, seeming to consider the threatened disfran- 
 
LIFE OF JACOB BARKER. 75 
 
 cliisement but a small penalty for the pleasure of the 
 battle. He insisted that the damages to be awarded 
 were to be measured by the provocation; hence all 
 things relating thereto were fit subjects for inquiry. 
 
 He referred to the language of Rogers, as sworn to 
 by himself; his ignorance as to the matter spoken of; 
 his refusal to hear testimony and to make the required 
 explanations, and to the continued injurious course of 
 the directors of the North River Bank, as described by 
 the Supreme Court when they annulled the illegal 
 election, and proceeded thus : 
 
 ^'The guilty words are, doubtless, 'My friend will 
 call to-morrow,' and on the morrow Mr. Wells did call. 
 How then can it be doubted that he was the friend 
 alluded to? Still they insist he was not the man 
 alluded to and again I ask them, what proaf they have 
 of that? Mr. Wells on his examination said that if 
 Mr. Barker meant that letter as a challenge, and the 
 friend mentioned in it as a second, I could not have 
 meant him, because I never said one word to him about 
 fighting or challenging, or any thing more than the desire 
 of an amicable explanation. 
 
 "I felt, and do feel, the weight of my obligations to 
 Mr. Wells, and that my whole life would not repay the 
 friendship of such a man ; and I most solemnly declare 
 that I never considered Mr. Wells in any other light 
 than as a peacemaker, and that if I ever had an in- 
 tention of dealing out justice with my own hand to Mr. 
 Rogers, Mr. Wells was never thought of as a party to 
 such a purpose. He has testified; his life and charac- 
 ter speak volumes for the truth of what he utters, and 
 because he says he never heard a word of fighting 
 or of challenging, it must be that I sent some other 
 
76 LIFE OF JACOB BARKEK. 
 
 friend to cliallenge, and that must be Lieutenant Allen, 
 because I employed him to bear a harmless note and 
 bring me a written answer. Now, I put it to the court 
 to say whether this is putting a fair construction on the 
 testimony, or whether it is not the fairer and more 
 rational inference that Mr. Wells was the friend alluded 
 to in my note of the 29th January, and that my only 
 object was of a pacific character. 
 
 "In affairs of honor, to be sure, it is a point of honor 
 to keep the secret, and the gentlemen have said that I 
 have exercised my accustomed sagacity in doing so. I 
 certainly kept the secret, if there was one to be kept, 
 with such marked fidelity that the gentlemen have not 
 been able to find a human being who had the most dis- 
 tant hint of it, although they spread their net wide 
 indeed, sweeping my friends and associates at random 
 into court, to give evidence touching my conversations ; 
 but it was not in their power to extract a word of chal- 
 lenging from all the circle of my friends and acquaint- 
 ance, with all their diligence, which went so far that I 
 wonder they had not called upon Mrs. Barker and her 
 daughter, and other inmates of my house, to detail the 
 conversation of the tea-table, &c. Therefore, I do think 
 this will be awarded to me, unless it should be believed 
 that there was not any secret to keep; and I confess 
 that is the natural inference, and particularly so, as 
 applicable to a person so fond of talking as everybody 
 who knows Jacob Barker knows him to be. This is all 
 well. Let no guilty man escape. I am content. But 
 if the district attorney had been as active in doing his 
 duty against others as he has against me, against whom 
 he has done it nobly indeed, and vigorously, there might 
 have been some other victims to satisfy the law. Cer- 
 
LIFE OF JACOB BARKER. 77 
 
 tain it is, that others have sent, carried, and accepted 
 challenges, ha^ve fouo;ht duels, and some have killed 
 their neighbors. 
 
 ''Mr. Allen was not called upon to testify: perhaps 
 that might be from the apprehension that he might 
 refuse to answer in crimination of himself, in which case, 
 it is true, he would be protected by the law. But the 
 question was asked, who is this William H. Allen? 
 And this question was to make it appear that he was a 
 lieutenant in the navy. I will now inform the gentle- 
 men further, Mr. Allen is a lieutenant in the navy of 
 the United States. He was second officer on board the 
 Argus when the London editors accused her of having 
 set the whole Irish Sea on fire; when at Lloyd's in- 
 surance could not be made across the Irish Channel from 
 Liverpool to Dublin under ten guineas per cent., not- 
 withstanding the thousand British ships of war that 
 covered all the seas; and when his commander and 
 namesake was killed, and his superior officer wounded 
 and taken below, he fought the Argus against the 
 Pelican, a ship of double her force, for twenty minutes, 
 until the wounds of the first officer were dressed, and 
 he came again on deck, and ordered his flag to be 
 lowered to save the further effusion of blood. The 
 gentlemen now know all about Lieutenant Allen, and, if 
 they can use this information to their advantage, they 
 are welcome to it; and I very much doubt if they can 
 give so good an account of themselves during the war. 
 
 "If the letter of the 29th January had been a chal- 
 lenge, that of the 1st of February could not have been 
 one, nor could it support the count at common law, 
 which was for sending a challenge by Wm. H. Allen ; 
 
 he is a lieutenant in the navy, that's it, therefore I am 
 
 7* 
 
78 LIFE OF JACOB BARKEB. 
 
 guilty; whether he was or was not the friend alluded 
 to in my letter of the 29th, can have no bearing on the 
 question, and especially as it was not proved that he 
 delivered any challenge whatsoever. But the first letter, 
 they say, was the challenge, and the friend intended in 
 that letter was Lieutenant Allen. '^ 
 
 "The district attorney opened this cause by saying 
 that I had offended against the laws of God and man ; 
 that I had a family ; that I owed something to the com- 
 munity, and for that should be made to suffer ; and some 
 spoke of my wife and children, and therefore that I 
 should answer to the commmunity. It was the first 
 time I had heard of a man's being punished for having 
 a wife and children, though I had often heard it urged 
 in mitigation of his sentence. I have, it is true, a wife 
 whose bosom is replete with every virtue that dignifies 
 the human character, and I have nine lovely children, 
 just bursting upon the world in pursuit of honor, fame, 
 and happiness; and may my heart cease to palpitate 
 when it ceases to feel for them ! My honor is their 
 honor ; and may my tongue cease to articulate, and my 
 arm be unnerved, when they cease to vindicate the 
 honor of such a family as God has given me to watch 
 over and protect! But I do not come to ask for them 
 the sympathy of this court, nor do I know why they 
 have been mentioned in this cause. I equally disclaim 
 being held guilty or innocent the more or the less 
 because I have a family. Not one of my family, whilst 
 one drop of their parent's blood thrills through their 
 veins, would stoop to accept, much less solicit, men's 
 compassion. Fallen as our fortunes are, our spirits 
 remain unbroken. I cannot, perhaps, prevent their 
 mourning over my misfortunes, but I can assure them 
 
 * See Appendix, p. 315. 
 
LIFE OF JACOB BARKER. 79 
 
 that tliej never shall have just cause to blush at any 
 action of mj life. They may regret that my enter- 
 prises have not been crowned with more success, but 
 they shall never have cause to be ashamed of me. It is 
 true, also, that I owe much to the community, a part of 
 w^hich is to oppose my feeble voice against all attempts 
 to invade its laws and constitution : that debt I am this 
 moment paying to the very best of my abilities. 
 
 "I have been charged with ambition, and I acknow- 
 ledge the weaknesses that belong to frail man. My 
 greatest ambition is to hold fast by my rights, and on 
 all occasions to defend them. Of the fame of having 
 sent a challenge I am not, certainly, ambitious. No 
 man holds a professed duellist in more contempt than I 
 do. I wish it were not necessary, or held so in any 
 case, not even in that most cogent of all exigencies, the 
 vindication of a lady's honor. But public opinion has 
 willed it otherwise, and I cannot help it, as I do not 
 make public opinion, however much I may be under the 
 painful necessity of yielding to it: we are all slaves. 
 
 ''One of the counsel thought I deserved to be con- 
 victed for not having come out in the public prints and 
 denied all intention to challenge Mr. Rogers, that he 
 might have been spared the scoifs and sneers and ridi- 
 cule of the world, and that the boys and girls, the 
 young, the middle-aged, and the old, might not consider 
 him as an object placed through life 'for the hand of 
 scorn to point its slow unerring finger at.' 
 
 "And did he think his employer entitled to this 
 kindness from me after he had heard his evidence ? I 
 cannot bring my mind to agree that such w^s my duty. 
 He also laid much stress on my not having seriously 
 denied the report to my friends when they stated it to 
 
80 LIFE OF JACOB BARKER. 
 
 me. Certainly he had no solid ground for a conviction, 
 or he would not have seized with such avidity on so 
 flimsy a pretext. 
 
 '^ I shall now examine the circumstances of aggravated 
 provocation under which I was placed. This cannot but 
 be a fit subject of inquiry, if the penalty be in the dis- 
 cretion of the court. 
 
 "Your honors will recollect the time, place, and 
 extent of the insult offered to me. I had in my pocket 
 at that time an anonymous letter, which had been sent 
 to my father-in-law through the post-ofiice, full of the 
 same calumny, applied to me by name. [Here the de- 
 fendant produced a letter, bat the reading of it was 
 objected to, and he withdrew it.] Many of my friends 
 have received similar letters, which we believed to have 
 proceeded from the same source. And w^as I tamely to 
 submit to these gross wrongs ? Was I to hear all and to 
 say nothing ? And when I sent an honorable friend to 
 demand some explanation, must I be punished? And, 
 if considered culpable, will all this provocation go for 
 nothing? Was my domestic peace to be invaded with 
 impunity? Was my aged father-in-law, in the evening 
 of life, to be harassed and disturbed on my account? 
 Were these attempts to interrupt the confidence and 
 affection of my own family to be repeated by these 
 men, and I not allowed to use my feeble voice, my 
 pen, my skill, nor to make any effort in defence of all 
 that renders life desirable, or even supportable ? Forbid 
 it, my fellow-citizens ! forbid it, this honorable court ! 
 forbid it, heaven ! 
 
 "The only thing said by Rogers which can have any 
 legal bearing on the case was that he gravely insulted 
 me at the coffee-house ; that my letter of the 29th was 
 
LIFE OF JACOB BARKER. 81 
 
 Ml 
 
 n 
 
 delivered to liim by myself one hour after the insult, 
 and at tlie distance of one mile from the place where 
 the insult was given; that Mr. Wells called on him the 
 day following the date of that letter ; that he considered 
 Mr. Wells the friend alluded to therein ; that Mr. 
 Wells's conversation was entirely of a pacific character, 
 and that my letter of the 1st of February was delivered 
 to him by Lieutenant Allen. This, considering that I 
 had to write a letter, look for a friend, find him out of 
 town, write another letter, and seek him at so great a 
 distance, was tolerably prompt, — perhaps not so much so 
 as the insult merited. 
 
 "The gentlemen have accused me of too much confi- 
 dence. I have ahvays felt great confidence in the posi- 
 tions I supported, and I have seen no cause to change 
 my opinions ; and if I have succeeded in expressing the 
 extent of the confidence I feel, I have at least been 
 successful in one thing. 
 
 " One of the grounds they urge for my conviction is 
 my want of gravity. A very slight ground for conviction 
 this. I do not know how to be very grave ; it is not in 
 my nature to be so ; and, even under the accumulation 
 of injury done me, I cannot but smile at their despera- 
 tion every time I think of their pretended election for 
 directors of the North River Bank the present week, 
 by which I have been greatly injured in a pecuniary 
 point of view. Yet I cannot be grave when talking to 
 my friends on the subject. From this censure I wish 
 to exempt Mr. Jay. . I consider him a gentleman, and 
 a man of honor. He was not at the board when the 
 illegal by-law was passed; and when he heard how 
 things were going on he went over to the bank to regain 
 
82 LIFE OF JACOB BARKER. 
 
 his proxy; it having been used early in the morning, he 
 was unfortunately too late. 
 
 "They think I ought not to succeed, because the 
 learned gentlemen who honored me with their aid on a 
 former occasion did not urge at the trial the objections 
 I have urged, and because they are not now by my side, 
 supporting with their legal reputation and eloquence 
 those principles for which I contend with so much zeal 
 and confidence. They say that if they had not totally 
 objected to risk their legal reputation in so desperate a 
 cause, I should have had them here on this occasion, as 
 I possess abundance of means of paying them. Now, 
 in all this they are totally mistaken. I am not able to 
 pay them, and I could not consent to tax their liberality 
 further, by putting in requisition such transcendent 
 talents, which they are now exerting in another part of 
 this house, and for which they will receive that pecu- 
 niary compensation they so richly merit, and which — 
 being their profession — is their dependence for the 
 support and fortune of their families, and I will not 
 disguise that I felt competent to the task I have under- 
 taken. I have not paid them one cent for the very 
 able assistance they rendered me on the trial ; but I 
 had on former occasions, when fortune smiled more 
 kindly on me, employed them, and paid them too, and 
 they, true to their well-known characters, did not hesi- 
 tate to come forward in aid of an old friend, without 
 stopping to inquire whether they would be paid or not; 
 and, so far from their doubting the soundness of the objec- 
 tions I have urged, one of them — Mr. Hoffman — told 
 me that there could be no question as to the point of 
 law, it was assuredly with me, — the duelling act, said he, 
 being abrogated by the new constitution. And I un- 
 
LIFE OF JACOB BARKER. 83 
 
 derstood Mr. Emmet to express the same opinion ; but 
 I do not advance that with the same confidence, because 
 my conversation with him was more general. 
 
 "There can be no question but what the test oath 
 was unconstitutional, and that it was abrogated by the 
 new constitution ; the gentlemen say that the latter did 
 not take efi"ect until December next ; every thing re- 
 lating to the franchise of the citizen took effect in 
 March last, and I insist that disqualifying an individual 
 from holding office under the State relates directly to 
 his franchise; they also insist that the test oath only 
 was abrogated, and not the whole law; I insist that 
 when the vital part of any law is abolished the whole 
 falls. 
 
 " To enable the court to decide whether the statute 
 be made in the spirit of the constitution, or against it, 
 it will be necessary to know its true character ; and, to 
 ascertain this, we must look into its origin, birth, or 
 first being. 
 
 "When before this honorable court, on a former 
 occasion, I read the journals of the Senate, showing the 
 law to be founded upon a petition from the Rev. Dr. 
 Milledoller, and several other reverend gentlemen ; one 
 of whom, if not more, devoted at least a month to 
 travelling through the State to collect signatures to the 
 said petition. In respect for these reverend men I will 
 not yield to any one. I visit their churches ; I listen to 
 their eloquence from the pulpit with attention ; I hear 
 them expound the divine law with delight ; I hear them 
 exhort their fellow-beings to forsake their sins and 
 become the disciples of Christ, with pleasing emotions 
 which I lack words to express; and when they crave 
 before the throne of grace omnipotent protection and 
 
84 LIFE OF JACOB BARKER. 
 
 forgiveness, my heart is filled with reverence, and with 
 them I crave from on high divine illumination. But, 
 when I see them overleap their jDrescribed bounds by 
 meddling with our political institutions, I turn from 
 them with alarm and concern. And if I shall here be 
 enabled to demonstrate to the satisfaction of this court 
 the true character of this law, I think it will prove a 
 wholesome admonition to these reverend gentlemen to 
 confine their future labors to softening the heart and 
 convincing the understanding." 
 
 Mr. Barker insisted that if the law had not been abro- 
 gated it was unconstitutional ; he opposed it on that 
 ground as a member of the Senatorial Committee, again 
 in the Senate, from which body the bill went to the council 
 of revision, where, after a sharp conflict, it was sustained 
 by a vote of four to three, and proceeded as follovrs : — 
 
 "Chancellor Kent delivered a very able opinion in 
 opposition, and when the subject was brought before the 
 convention Mr. Jay observed 'that he had originally 
 introduced this law; that he drafted the law; and, 
 though it was altered in its passage through the house, 
 he voted for it. It went to the council of revision, 
 which was said to be divided. But I feel ready to con- 
 fess, that if I had seen the objections to it presented by 
 the honorable the chancellor, I should not have voted 
 for it; and I am ready, therefore, to assent to the repeal 
 of the law on those grounds.' 
 
 "The court will please to remark what Mr. Jay con- 
 sidered the question to be. 'I will,' said he, 'vote for 
 the repeal of the law' — not the test oath, but the law. 
 Chief-Justice Spencer considered the case originally 
 unconstitutional, and proposed an amendment, but the 
 convention, being bent on their purpose, were not to be 
 
86 LIFE OF JACOB BARKER. 
 
 The recorder illustrated this opinion with some feel- 
 ing, and stated impressive cases which might occur if 
 there should be a recurrence of such a practice, and 
 continued : — 
 
 "We have no hesitation to say that that objection 
 would be fatal if established by legal evidence ; but you 
 have only the proof which some of the jury themselves 
 gave; and it is a well-settled point that a juryman 
 cannot be heard to disparage his own verdict. 
 
 "The defendant's points have all failed him. The 
 sentence of the court therefore is, ^That you be in- 
 capable of holding, or being elected to, any post of 
 profit, trust, or emolument, civil or military, under this 
 State.'" 
 
 These disabilities were all removed, and Mr. Barker 
 restored to all the rights of a citizen, by Governor 
 Clinton. 
 
 The New York city press was generally subservient 
 to the moneyed aristocracy ; and it rarely happened that 
 suflBcient moral courage was found among individuals 
 to take part in resisting the storm which was raging 
 against Mr. B. The character of this hesitation may 
 be gathered from the following letter : — 
 
 •■* March 6, 1822. 
 
 ^'SiR: — We have been called upon this afternoon by 
 a number of gentlemen regarding the documents of 
 which your advertisement is composed, who, upon hear- 
 ing their contents, have given us to understand that if 
 published they will involve us in difficulty with many of 
 our patrons and friends. 
 
 "Not feeling willing to encounter this disturbed state 
 
LIFE OF JACOB BARKER. 85 
 
 diverted from abolishing the whole law: thej rejected 
 the amendment 74 to 45. 
 
 "The legislature are competent to impose any degree 
 of punishment, provided they do not infringe the fran- 
 chise of the citizen; this they cannot constitutionally 
 do but for what the law denominates an infamous crime ; 
 and the offence under consideration is at most but a 
 misdemeanor. So far as they condemned me, under 
 the common law, their doings are a nullity — they having 
 done so without evidence." 
 
 Mr. Barker failed to convince the court that the law 
 of the State was unconstitutional, or that the abrogation 
 of a portion of it had the effect of abrogating the whole. 
 The court said, among other things, however, that it was 
 unanimously of the opinion that it would not be just to 
 inflict the penalty of both laws, and charged thus : — 
 
 "As at common law we shall not consider the verdict, 
 for, in the first place, we on the trial considered only 
 the statutable offence. The proof not having sustained 
 the count at common law, we put it to the jury only as . 
 an offence against the statute, though they found a 
 general verdict against you. Should we go further now, 
 it would be inflicting a double punishment, and contrary 
 to the testimony in the cause. 
 
 "As to the ground that the jury found a verdict 
 against you on chance, you brought the declarations of 
 jurors to -prove that the jury agreed if nine of the panel 
 should unite in a verdict the other three should fall in 
 and find with them. Such conduct would undoubtedly 
 be reprehensible, and this court takes this occasion to 
 ., say that nothing would be more alarming than for our 
 juries to adopt any other method of making their ver 
 diets than the true merits according to the evidence." 
 
LIFE OF JACOB BAEKER. 87 
 
 of feeling, we are under the necessity of declining the 
 insertion of the advertisement. 
 
 "We are, with respect, your obedient servants, 
 
 " DWIGHT, TOWNSEND & WaLKER. 
 
 "Jacob Barker, Esq." 
 
 CHAPTER YI. 
 
 failure of the life and fire insurance company. 
 
 Mr. Barker continued his financial operations in 
 Wall Street on a large scale. Most of the companies 
 which had issued bonds became embarrassed. Mr. 
 Eckford, considering the Life and Fire Insurance Com- 
 pany solvent, that its portfolio would ultimately bring 
 it out safe, undertook to sustain it with his individual 
 credit and fortune, inducing Mr. Barker and the com- 
 panies with which he was connected to advance to the 
 Life and Fire Insurance Company large sums of money 
 on his individual guarantee and other securities. He 
 also made arrangements, in good faith, for a temporary 
 exchange o'f two thousand shares of Fulton Bank 
 Stock, with Mark Spencer and George W. Brown, who 
 were directors of the Fulton Bank. Mr. Barker had 
 not any interest in, agency, or knowledge of this nego- 
 tiation, further than that Mr. Eckford, having occasion 
 to visit Baltimore, leaving his partner, W. P. Rathbone, 
 to carry the arrangements into effect, called on Mr. 
 Barker and informed him of having made the said 
 contract, requesting him to aid Mr. Rathbone in com- 
 pleting the arrangement. 
 
 In the absence of Mr. Eckford, Rathbone called on 
 
88 LIFE OF JACOB BARKER. 
 
 Mr. Barker with a letter from Mr. Eckford, in words 
 following: — / - 
 
 " New York, May 7, 1826. 
 "Dear Sir: — In consequence of advice from Balti- 
 more, it became necessary for me to go on to-day. 
 Have the goodness to send me by to-day's mail the 
 papers you talked of. It will be twelve o'clock to- 
 morrow before I leave Philadelphia. You will have the 
 goodness to give such aid as you can in completing the 
 arrangement with Mr. Spencer. 
 "Your friend, 
 
 "H. Eckford. 
 "To Jacob Barker, Esq." 
 
 With this letter he submitted a draft of an agreement 
 prepared by himself for the loan of two thousand shares 
 of stock, to be returned by Mr. Eckford, at his option, 
 at any time prior to the 1st of March following, asking 
 his opinion as to its phraseology. Mr. Barker suggested 
 that he had better add the words, "as fast, and in such 
 proportions, as I deliver the Fulton Bank Stock." - 
 
 This paper Bathbone took away from Mr. Barker's, 
 office, had the clause suggested incorporated . therein 
 before it was signed by Spencer and Brown or delivered 
 to them, retaining the rough draft. The contract 
 executed by the parties was not produced on either 
 trial : had it been, it would have defeated the fraudulent 
 use by Maxwell of the clause in Mr. Barker's hand-, 
 writing on the back of the draft. The paper drawn by 
 Bathbone called for the return of the whole at the same 
 time. Mr. Barker suggested to Bathbone that it might 
 be inconvenient to Mr. Eckford to return the whole at 
 one time, when Bathbone requested Mr. Barker to 
 
LIFE OF JACOB BARKER. 89 
 
 draft such a condition, wliich, not supposing any injury 
 could result therefrom, he did on the back of the -paper 
 brought by Rathbone, and this paper was used for the 
 vile purpose of purchasing his exemption, by making 
 the innocent suffer for his own sins. I say fraudulent : 
 the draft was drawn in the singular number, — meaning, 
 I, Henry Eckford, — and signed for Henry Eckford. 
 Maxwell read it to the jury, me — Henry Eckford — and 
 William P. Rathbone, and insisted that the clause on 
 the back, in my handwriting, being in the singular 
 number, was to be signed by me ; meaning, as fast, and 
 in such proportions, as I, Jacob Barker, and not I, 
 Henry Eckford, deliver the stock. 
 
 When the second trial came on, Hugh Maxwell, the 
 public prosecutor, proclaimed in court that William P. 
 Rathbone had rendered the State some service, there- 
 fore would not be again tried ; that he was regenerated, 
 but not disenthralled. 
 
 Maxwell's excuse for letting off Rathbone was that he 
 Wm. P. Rathbone had joined theunholy conspiracy to pro- 
 cure the conviction of Mr. Barker, and his excuse for let- 
 ting off Mr. Eckford w^as that he had been the victim of 
 others, meaning of Jacob Barker. The letter of Mr. Eck- 
 ford establishes that he was the principal in the business, 
 be it right or wrong; that he solicited the aid of Mr. 
 Barker, and that all the aid he rendered was, on the 
 application of Rathbone, to suggest the said prudent 
 and harmless clause to be added to a contract drawn by 
 Rathbone for the exchange of the Fulton Bank stock. 
 
 Mr. Eckford's conduct, although unfortunate, had 
 been praiseworthy : his great fault was in not hurling 
 defiance at the public prosecutor and fighting the battle 
 
90 LIFE OF JACOB BARKER. 
 
 boldly through, side by side with Mr. Barker; in 
 place of which, he was beguiled by his counsel, William 
 Price, and the public prosecutor, into the unfortunate 
 doctrine of "save himself who can." 
 
 The great discount at which the bonds of various 
 companies sold tempted all classes to participate in the 
 game. The avarice of the merchant, the clergyman, 
 the widow, the lawyer, the doctor, the mechanic, the 
 clerk, and the retired gentleman, the broker, and the 
 banker, triumphed over their better judgment. The 
 temptation of one, two, three, five, and sometimes ten 
 per cent, per month for their money was too alluring : it 
 overshadowed all other considerations. 
 
 In June, 1826, the insolvent companies failed. The 
 Life and Fire secured Mr. Barker and the companies 
 he represented. This was done for the single purpose 
 of protecting Mr. Eckford. 
 
 The numerous class of creditors and stockholders 
 became furious, filed a bill in chancery against Mr. 
 Barker to make him return the securities, that they 
 might be divided among them. The operation of the 
 chancery suit being too slow to satisfy their impatience, 
 they induced the district attorney, Hugh Maxwell, to 
 apply to the grand jury for an indictment against the 
 directors and Mr. Barker. They indicted the directors, 
 refusing to include Mr. Barker, saying that there was 
 not any evidence against him. Maxwell refused to 
 bring these indicted individuals to trial until an other 
 grand jury could be formed, which being done, a new 
 application was made for the indictment of Jacob Bar- 
 ker. He assured this new grand jury that if they 
 included Mr. Barker he would give up the securities in 
 eight days. He was successful in procuring the indict- 
 ""ont, but not in getting the securities. 
 
LIFE OF JACOB BARKER. 91 
 
 CHAPTER yil. 
 
 CONSPIRACY TRIAL. 
 
 The trial of the directors, Henrj Eckford, James G. 
 Swift, William P. Rathbone, George W. Brown, Mark 
 Spencer, Thomas Yerm^ilyea, and Jacob Barker, came on'. 
 Mr. Barker, relying on the integrity of his cause and 
 his own capacity to establish his freedom from offence, 
 declined the aid of his professional friends, conducting 
 the defence himself, until near the close of the first trial. 
 
 The testimony of the prosecution closed a day sooner 
 than was anticipated, when the court called on the 
 counsel to commence their defence. It was two o'clock. 
 They asked until next m.orning to look over their 
 notes, consult with each other, and arrange the order in 
 which they would speak ; the court refused, saying 
 they must commence at four o'clock, when Thomas J. 
 Oakley, Esq., counsel for Mark Spencer, said, "Perhaps 
 Mr. Barker will be willing to make his defence this after- 
 noon ?" Mr. Barker replied, "Certainly." "Yes," said 
 Mr. Emmet, who was counsel for Mr. Eckford, "if they 
 were all to be hanged, Mr. Barker would say. Hang me 
 first." The court adjourned, and met again at four 
 o'clock, when Mr. Barker spoke thus: — 
 
 MR. barker's speech. 
 
 ^^ Gentlemen of tJie Juxy : — The importance of this 
 subject makes some apology necessary from me before I 
 take up your time in showing you how to attain a right 
 
92 LIFE OF JACOB BARKER. 
 
 understanding of its yarious details. What is it for 
 which I come here? Do I not come to advocate the 
 cause of the father, — the cause of jou, gentlemen of 
 the jury, of your wives and children, of this honorable 
 court and their children, — the cause of the mother and 
 the cause of a family heretofore happy and prosperous? 
 But not for these purposes alone appear I before you. 
 I advocate the cause of public justice, no less than the 
 most powerful affections of human life. The sorrow 
 this trial inflicts upon many innocent j^ersons is of the 
 deepest kind. It is from you, gentlemen, that I confi- 
 dently expect and hope for aid to wipe away those stains. 
 But the number that will read an account of the re- 
 deeming qualities of this trial are few in comparison 
 with those who have listened to the slanders or believed 
 the calumnies. For myself, I am willing to receive -all 
 the consequences for the privilege of putting before the 
 world proof of my innocence ; but I feel for others. 
 
 "The subject of finance is one of great magnitude 
 and mystery ; few understand it. I flatter myself that 
 I have some experience on the subject, and it is on that 
 account I am unwilling to trust to counsel. I am well 
 aware that I am surrounded by great talents, greater 
 than I have any pretensions to. To the whole bar I 
 owe an apology for appearing here in my own person, 
 to do for myself what all the world have told me they 
 could do so much better for me; they will excuse me, 
 for they know I do not intend any disrespect for them. 
 They know the high estimation in which I hold their 
 learning, their logic, their eloquence, and their justice ; 
 and that venerable patriot, ihe pride and glory of two 
 nations, knows how I love him, and how the story of 
 his love of liberty warmed and swelled my bosom in 
 
LIFE OF JACOB BARKER. 93 
 
 "boyhood, how I greeted him welcome when, flying from 
 prejudice and persecution, he first landed on this sacred 
 spot, and how constant I hai^e been in my attachment 
 to him ever since. With all this, I have no fears of 
 kindling unkind feelings with those who love the law, 
 and whose practice is to make manifest the excellence 
 of that which merits their love. 
 
 "I come here under many disadvantages. The odds 
 are fearfully against me. I said that this business was 
 very difiicult to understand, and had many conflicting 
 interests. I dare not trust thjat I can separate them 
 with sufficient clearness, but I will try ; and, gentlemen, 
 I rely on your intelligence to separate these conflicting 
 interests. The past has been a great season of excite- 
 ment among the dealers in stock, bonds, bank-notes, 
 &c. In all these difficulties I have more or less mixed; 
 in the financial concerns of this city I generally have 
 had a hand. It has been made manifest, after four- 
 teen days' investigation before you, in which I have 
 stood here before my accusers, boldly bidding them 
 to tell all they knew, that not a hem of my garment 
 has been touched. I complain that I do not come here 
 upon equal terms with any other man. Public prejudice 
 has been excited against me. The newspapers long since 
 called upon the grand jury to indict Jacob Barker ; 
 his door has been chalked ; he has been called a rogue ; 
 every species of reproach has been heaped upon him. 
 During that time Jacob Barker pursued the even tenor 
 of his way. Witness after witness had been examined, 
 and that grand jury was dismissed without finding a bill of 
 indictment against me. Hand-bills continued to be pub- 
 lished ; poems have been written, — and all against Jacob 
 Barker, stating that all was not unravelled. It was pub- 
 
94 LIFE OF JACOB BARKER. 
 
 lished that this and that institution had failed, the funds 
 of which had all disappeared ; all this had been laid at 
 mj door, and a second grand jury called to indict me. 
 The moment I heard of the indictment, I was ready and 
 anxious for trial. I wanted no books, no preparation ; 
 I was willing to submit the cause, after all that could be 
 brought up, to a candid jury, but was pressed on all 
 sides not to go to trial. My friends told me that I 
 could not get an impartial one. I was sorry to hear 
 this, and I did not believe it. I knew it was the 
 court and jury that had to try me, and I considered it 
 impossible but that I should have a fair trial, and there- 
 fore demanded it forthwith. You have heard it said in 
 this court that an acquittal by you would do Jacob 
 Barker no good. I know better ; and I will convince 
 you, by the zeal, the ardor, the pertinacity with which 
 I shall plead before you, that I place a high value on 
 what the district attorney has dared to say would do 
 me no good from such men as you. I knew your ver- 
 dict would be valuable, and I asked it as such. 
 
 " Gentlemen, I come here armed with justice, and, 
 confident in the wisdom and integrity of my conduct, I 
 come here to clear myself from the imputations that 
 have so falsely been made against me. I have brought 
 with me these four boys. [Here he pointed to four 
 promising young men, a part of those twelve children 
 to whom he alluded when speaking of the " beardless 
 boy" who had been sent by the conspirators on his 
 oath to insult their father.] I have brought them here 
 that they may learn a useful lesson ; that they may see 
 the excellence of the motto I have from their infancy 
 endeavored to impress on their young minds, — 'Be just, 
 and fear not,' — that they may feel, in listening to my 
 
LIFE OF JACOB BARKER. 95 
 
 vindication, tlie force of trutli and justice over calumny 
 and fraud, and that thej may know that they have not 
 had, and will never have, cause to blush hereafter when 
 they speak of their fatHer's memory or hear their 
 father's name. To do myself justice is a great object; 
 to do my children justice, a greater. 
 
 ^'In his opening speech the district attorney promised 
 me a fair trial. The idea of such a promise — of being 
 promised a fair trial — shocked me to the quick. What ! 
 is the trial to be given by the district attorney ? is its 
 impartiality or fairness left to him ? No, gentlemen, it 
 is not so. It is the judge on that bench, and the jury 
 on these chairs, and not the district attorney, that can 
 give me a fair trial. I am to be adjudged by you on 
 the evidence that is produced and will be produced. 
 But how dare the district attorney name such a thing to 
 a free citizen ? Let your verdict, whether of guilt or 
 innocence, be delivered on the evidence under your 
 oaths, and who shall gainsay it ? 
 
 " Gentlemen, I was very unexpectedly called upon by 
 counsel for the other defendants, after I came into court 
 this morning, to make an opening, — which was the first 
 intimation that it was their intention for me to lead the 
 van ; and, as I always keep my powder dry, I make no 
 complaint about being surprised into premature battle. 
 I live in the country, or I should have heard the alarm- 
 gun last evening, and made a little preparation : not 
 having done so, I hope my deficiencies will be forgiven. 
 So far as the trial has proceeded, I have reason, thank 
 God, to be satisfied. I have no brief, and have taken 
 no notes. 
 
 ^' The different classes of witnesses are very numerous, 
 and their testimony is mixed up in such a manner as 
 
96 LIFE OF JACOB BARKER. 
 
 will make it very difficult to be understood. There are 
 the broker and usurer, there are the debtors to the 
 company, and those who have failed to acquire fame in 
 the management of the business of finance, all warring 
 with each other, and at the same time warring against 
 me and combining together for my destruction. The 
 idea is shocking to them that amid the disasters, the 
 wide-spread ruin which has desolated so many of our 
 moneyed institutions, the affairs of the companies which 
 have, in a considerable degree, been intrusted to my 
 management should have been so ably, so prudently, 
 and so successfully managed as to be preserved not 
 only whole and sound, but their dividends not curtailed. 
 The debtors of the Life and Fire Insurance Company, 
 whose want of punctuality has been the sole cause of 
 the failure, now wish to take advantage of the ruin 
 their own bad faith has occasioned, and to purchase up 
 the bonds for a mere song, and pay them back to the 
 company at par; and to effect this they cry 'fraud,' 
 'fraud,' against me, in the hope of invalidating the 
 transfer of the securities to me. The bond-holders are 
 mortified that I should have got my pay when they did 
 not, and therefore unite in the cry of 'fraud,' 'fraud,' in 
 the hope of getting an equal distribution of the assets 
 of the company ; forgetting that they got thirty, forty, 
 and fifty per cent, per annum for fheir money, and that 
 mine was lent without interest, commission, discount, or 
 usury, unaccompanied by any circumstance to cloud or 
 mar the purity of the transaction. 
 
 "The stockholders unite in the cry of 'fraud' against 
 all parties, in the hope of dividing all the effects of the 
 company and defrauding all the creditors of a parti- 
 cipation therein, although the present effects of the 
 
LIFE OF JACOB BARKER. 97 
 
 company are almost exclusively tlie offspring, the fruits, 
 the avails of the bonds out, or the bonds for which 
 those out were given in renewal. This, gentlemen of 
 the jury, is the first time it has been pretended that 
 partners in trade, — and stockholders in an incorporation 
 cannot be considered in any other light, — it is, I say, 
 the first time that partners in trade have avowed an 
 intention to divide all the effects of the partnership 
 among themselves, without paying a single debt of the 
 firm. The records of the courts of all the Avorld do not 
 furnish a single instance of such an enormity; and yet 
 I am now on my trial for a fraud against these virtuous 
 stockholders, for the single reason that I am now an 
 obstacle to the consummation of their iniquitous schemes. 
 A great portion of the securities I received came to my 
 hands before I lent the money ; why should this pre- 
 judice them against me? Industry, prudence, and 
 talent will succeed in any business ; and after lending 
 so much money to save the company from suspending 
 its payments, and thereby protecting the stockholder 
 and bondholder from loss, they arm against me because 
 I could not advance more money for their exclusive 
 benefit. With another difficulty I have to contend. 
 Ancient prejudices are revived and brought here, and 
 combined with the recent occurrences for the purpose 
 of destroying me — prejudices growing out of misfor- 
 tunes occasioned by circumstances over which I had no 
 control — misfortunes I have been struggling to sur- 
 mount as I would for the preservation of the apple of 
 my eye; and I hope to satisfy all of the purity of my 
 intentions. I admit the very great prejudice against 
 me of the moneyed aristocracy of Wall Street, and that 
 it is widely branched out, insomuch that the very air of 
 
98 LIFE OF JACOB BARKER. 
 
 this hall has been filled with accusations of guilt against 
 me. But this is a day of revolutions ; and I publicly 
 pledged myself, at the commencement of this trial, to 
 make a most thorough and perfect revolution in the 
 public opinion in relation to Jacob Barker's guilt, and 
 I think I have done so. I love the world, and, if I 
 could make the world love me, I should be happy. 
 With the mechanic, the cartman, the laborer, the men 
 who live by the sweat of their brow, and, consequently, 
 who think honestly on all subjects, — ^with this most 
 meritorious portion of our citizens, no such general pre- 
 judice exists against Jacob Barker. With these, it is 
 the pride and delight of my heart to stand well ; and of 
 their friendship and confidence, I assert without the 
 fear of contradiction, no individual possesses a larger 
 share. 
 
 " Gentlemen, it has been asked over and over again, 
 why has Jacob Barker been indicted? In vain have I 
 listened and looked for a justifiable cause. I give you 
 my honor that I am yet ignorant, and therefore am 
 obliged to fight in the dark. Imagine for what it is that 
 you are to be required to convict me : you have heard 
 the district attorney more than once tell me he would 
 let me know when he comes to sum up the case. Observe, 
 gentlemen, when he comes to sum up : then I shall be 
 bound hand and foot, muffled and gagged ; then the rules 
 of the court will not permit me to call a single witness, 
 or to say a single word in explanation or vindication of 
 what he may then be graciously pleased to say to my 
 prejudice. It is then, and not till then, that I am to 
 know for what I am now on my trial. I have said that 
 I did not know for what reason this bill of indictment 
 had been procured against me. There are two circum- 
 
LIFE OE JACOB BARKER. 99 
 
 stances tliat may have led to it, which I will relate to 
 you. First, when Mr. Boyd told me of a project he 
 had for harmonizing the then existing disputes between 
 the ins and outs of the Tradesmen's Bank, which was 
 to leave in the pockets of the incautious sellers eighty- 
 four thousand dollars profit, to have the bank returned 
 to them, and for the 'great unknown' quietly to resign 
 the bank, losing his eighty-four thousand dollars, for 
 having dared to do what every man in the community 
 considers himself at liberty to do, viz. : purchase bank- 
 stock. When Mr. Boyd mentioned this splendid money- 
 making scheme to me, I exclaimed, ' Preposterous ! non- 
 sense ! if it was my case, I would make you disgorge 
 your ill-gotten gains.' For this high offence — the high 
 offence of expressing a sound opinion of and honest 
 indignation at such a proposition — the parties, or some 
 of them, which I know not, have been filling the ears 
 /)f the district attorney with suspicions of me. The 
 other circumstance was, that before my indictment I 
 heard everywhere that the district attorney was pro- 
 claiming, with apparent exultation, that the gentlemen 
 then indicted would all, to a certainty, be convicted, 
 and that he held in his pocket abundant evidence of 
 their guilt. This being repeated in my presence at 
 the funeral of Judge Van Ness, and my friend Mr. 
 Eckford being one of the persons indicted, — although 
 I was not, myself, at that time so unfortunate, I could 
 not contain my indignation, and I did say that the dis- 
 trict attorney was wrong ; that the oath of his ofiice 
 imposed on him the same obligation to protect the inno- 
 cent that it did to punish the guilty ; and that if such 
 a man as Hem*y Eckford, after a long life of private 
 virtue and public usefulness, should have been, either 
 
100 LIFE OF JACOB BARKER. 
 
 hj a combination of circumstances, a mistaken confi- 
 dence in those about bim, or a momentary relaxation 
 of those rigid principles of morality which had hitherto 
 regulated his every action, betrayed into error, it should 
 fill the district attorney with grief and horror ; and that 
 he should go on to discharge the duties of his ofiice 
 with melancholy regret, and not go about the streets 
 prejudging the case and prejudicing the public mind ; 
 (adding to Mr. Price, who was present), I wish you 
 would say these things to the district attorney, and tell 
 him also that he has fallen, very much fallen, in my 
 estimation. Now, it may have been better that I had 
 listened in silence, and denied utterance to those ofi'end- 
 ing words, and performed the difiicult task of restraining 
 my tongue from pursuing its accustomed frank and 
 fearless course. 
 
 ^' Gentlemen of the jury, nothing can be more obvious 
 than that all these proceedings are a crusade against^ 
 Jacob Barker, who has done no wrong. The district 
 attorney spread and drew, his net again and again with- 
 out catching him. Others were indicted by the dozen ; 
 those who had failed to protect the interests of the 
 stockholder and creditor of the companies intrusted to 
 their management were indicted ; and although this 
 happened days, weeks, and almost months before he got 
 me in the boat, yet he never thought to bring one of the 
 individuals thus indicted to trial. At length he induced 
 a too willing grand jury to gratify his wishes, by en- 
 rolling Jacob Barker among the number who were to 
 come here and meet their accusers. Please take notice, 
 gentlemen, that Jacob Barker had preserved from the 
 calamities of the times all the institutions which he had 
 any part in conducting. No delay, no excuse, no plea, 
 
LIFE OF JACOB BAEKER. 101 
 
 is urged for postponing the trial ; every other indict- 
 ment is forgotten and left slumbering on the dusty 
 shelves of the district attorney. The last of all is first 
 called up, and for what? For fear lest the hideous 
 monster, prejudice, which has been thus artificially got 
 up in Wall Street, and about this house, should give 
 way to calm reflection, to reason, and to a becoming 
 sense of propriety. But, gentlemen of the jury, I do 
 not complain; I have, from the hour of indictment, 
 been impatient for a trial ; and, in truth I may say, 
 the week which elapsed previous to its commencement 
 has been the most impatient of my life. ^ 
 
 "[Mr. Barker having, when he first rose to address 
 the jury, borrowed of the clerk the bill of indictment, 
 and on the margin made a few pencil memorandums to 
 use in lieu of notes, proceeded to comment on the alle- 
 gations therein, in the order in wdiich they stood.] 
 With the Mechanics' Fire Insurance Company (he said) 
 I never had a single transaction, nor did I ever own a 
 share of stock in that company ; and if the district 
 attorney will ask its president and directors, they will 
 one and all say, on their oaths, that Jacob Barker has 
 not, directly or indirectly, defrauded that company. 
 With the Tradesmen's Bank he has not had any dealings, 
 and he never owned a single share in it during the 
 whole course of his life. Eight hundred shares of its 
 stock were transferred to Seth Sturtevant, a clerk in 
 the Western Insurance Company, for the use of that 
 company, by William P. Bathbone. Three hundred 
 shares were transferred back in a day or two ; Mr. 
 Rathbone wanted the whole, and, it not being conve- 
 nient at the moment to transfer them, I, being the 
 
 active officer of the Western Company, gave a memo- 
 
 9-» 
 
102 LIFE OF JACOB BAKKER. 
 
 randum to Mr. Rathbone, promising to deliver to S. L. 
 Groverneur, Esq., five hundred shares of bank-stock. 
 Observe, 'promised to deliver;' not borrowed, not re- 
 ceived, not to return, as has been proclaimed to you in 
 triumph, but simply to ^delivery' and this promise was 
 immediately thereafter openly and publicly complied 
 with ; to do which, I drove to the Tradesmen's Bank 
 at noonday, in my own carriage, amid the surrounding 
 multitude, and publicly proclaimed my readiness to 
 comply on the surrender of my memorandum. And is 
 this open and prudent course to be considered evidence 
 of fraud ? does it not rather indicate every thing else ? 
 Had I been the ' great unknown' purchaser, had I 
 been a secret conspirator, had I been guilty of the 
 least impropriety, should I not have sent a clerk or a 
 friend? If these men had been my agents, my tools, 
 my creatures, with whom I had intrusted four or five 
 thousand shares of stock, and the whole bank, should 
 I have denied to them so publicly, and at so critical a 
 moment, the trifling confidence of delivering five hun- 
 dred shares of stock, relying on their fidelity to return 
 the obligation for it? This single circumstance speaks, 
 to my mind, volumes, but it is,like my every other act, to 
 be tortured into evidence of guilt — is declared to be 
 *my peculiar way of doing things,' and to have been 
 planned on purpose to deceive. 
 
 "I perceive, by the course of the examination, that 
 a great flourish is to be made by the district attorney 
 about this clerk's not being of age. On this subject I 
 can only say that we are not apt to consider wrong the 
 things we have openly practised through life. I traded 
 a little when a boy, and before I was of age was in- 
 terested in four ships and a brig, and had my note dis- 
 
LIFE OF JACOB BARKER. 103 
 
 counted and continued as an accommodation note at the 
 United States Branch Bank. I have, since I became 
 of age, confided a great portion of my business to young 
 gentlemen not twenty-one years old, and it never oc- 
 curred to me that such confidence could be made the 
 foundation of a criminal prosecution. In addition to 
 this practice, Mr. Catlin, Mr. Fleming, and I believe 
 every witness who was examined on the subject, told 
 you that it was the universal custom to pass stocks by 
 blank powers, that is, without naming the purchaser or 
 seller ; by which means it could pass through the hands 
 of persons without number, and not one of them appear 
 or be known. However, I will not detain you longer 
 about this custom, but examine the legal operations of 
 the system. Stock and all other property is the mere 
 creature of the lav/, and is equally amenable to that 
 law in the hands of a minor as in the hands of a person 
 of age. If such minor has no interest in it, the chan- 
 cellor can take it from him, the same as a court of law 
 can take it from a person of full age ; therefore, this 
 tale about the youth of Seth Sturtevant is got up for 
 the sole purpose of making a great noise about nothing, 
 and producing stage effect. 
 
 "In connection with the Tradesmen's Bank there is 
 another circumstance. Mr. Cox, who, during the ten 
 days' reign of the new dynasty over that bank, was its 
 cashier, was formerly in my employ ; at which time I 
 left a message for him to write some Democratic 
 tickets, for the then pending election, to be furnished 
 to a stevedore, also in my employ, who could not write, 
 and who had applied for them. Mr. Cox declined the 
 service. I told him that it had not any thing to do 
 with his political principles ; that I did not wish him to 
 
104 LIFE OF JACOB BARKER. 
 
 vote or give liis name to any tiling. He appeared 
 totally to mistake the matter ; and, being unwilling to 
 part with him, I recommended him to consult his friends. 
 He did so. He consulted Mr. Lydig and others, and 
 returned, saying he should adhere to his refusal. The 
 consequence was, he left my employ, and the ^Evening 
 Post' charged me with dismissing a most worthy clerk 
 because he would not vote for the Democratic ticket. 
 Mr. Cox seeing this, and being an honest and generous 
 man, although indignant at what he, no doubt, supposed 
 to be on my part oppression, came immediately forward, 
 and published to the world that I had not in the whole 
 course of my life said one word to him about voting, or 
 about his political principles, nor had I, to his know- 
 ledge or belief, even allowed myself to talk on the sub- 
 ject to a single clerk in my employ. Mr. Cox, as you 
 may well conclude, soon found his way back into my 
 counting-house, and served me faithfully for a long time. 
 But in consequence of my misfortunes he had to seek 
 employment elsewhere ; and for about seven years he 
 had been in the employment of others, until the recent 
 dijQBculty at the Tradesmen's Bank ; about which time 
 he suddenly fell sick. I then, for the first time in my 
 life, visited him, found him in a high fever, surrounded 
 by a lovely wife, beautiful children, and two not less 
 lovely sisters, all in tears. They, with trembling solici- 
 tude, told me that they supposed Mr. Cox's apprehen- 
 sions in relation to losing his place, on the salary of 
 which his family depended, contributed greatly to in- 
 crease his disorder. My reply was, 'No matter if he 
 does lose his place: there are others as good as that. 
 He has got into bad company ; and the sooner he clears 
 out the better. Let him resign immediately, and when 
 
LIFE OF JACOB BARKER. 105 
 
 he gets well, if he wants employment, let him come 
 back to me, and he shall not want. He is an honest 
 man, and I dare employ him amid the cloud of suspicion 
 that for the moment surrounds him.' These remarks 
 animated him, and he approved of the suggestion. I 
 immediately drafted for him a letter of resignation, 
 which was instantly sent to Mr. Governeur, and when 
 he got well he did come, and he found employment. 
 And this, gentlemen of the jury, is to be urged upon 
 you as evidence of my guilt. Wait, I beseech you, wait 
 until these lovely women come into court and relate the 
 tale for themselves. Yes,- 1 did more. Mr. Cox has 
 also been indicted. I advised him not to employ any 
 professional man to defend him, but to petition the 
 court to grant that favor to me, urging on him that his 
 whole duties could, in the language of General Gaines, 
 be described in one word, and that word was obedience ; 
 that his whole offence consisted in having been obedient 
 to his superiors, to men whose duty it was to decide by 
 their votes that by law he had no right to a voice in 
 such decisions, but was imperiously bound to carry into 
 full and prompt effect the decisions of the directors; 
 that he had not, according to the best of my knowledge 
 and belief, done any thing more than to be obedient, 
 which, if I was allowed to plead his cause, I supposed I 
 could make as manifest as the light of the sun to any 
 jury on earth. This too, I suppose, is to be urged as 
 further evidence of my crime. Mr. Beers called on 
 me, as he did on others, shortly before the election of 
 directors for the Tradesmen's Bank, and inquired if I 
 knew who had purchased the bank, and told me that 
 Mr. Cox was to be the cashier. I answered that I had 
 not the least interest in it, and did not know who had, 
 
106 LIFE OF JACOB BAKKER. 
 
 but that I supposed I could find out. He wished me to 
 do so, and ascertain for him the terms on which it could 
 be purchased. I told him I would not intermeddle to 
 the prejudice of Mr. Cox, — that he had been one of mj 
 boys, and been faithful, that he was an honest man, 
 that it was a sine qua non with me that he must be pro- 
 vided for if I interfered, that I did not know any thing 
 about his views, that I had not seen him for more than 
 a month, and did not before know that he was to be the 
 cashier. Mr. Beers gave me to understand that every 
 thing should be made satisfactory; and I made the 
 effort to find out the purchaser : I did not succeed, and 
 so reported the business. 
 
 "The Morris Canal and Banking Company is also 
 named as one of the institutions which I am charged 
 with defrauding. This institution I saved from in- 
 solvency. The president and directors have sworn that 
 I acted with zeal, fidelity, and success, and that I did 
 not defraud the Morris Canal and Banking Company. 
 They promised me a fee of five thousand dollars ; and 
 you have seen the devices resorted to for the purpose of 
 chousing me out of the richly-earned commission. They, 
 through Mr. Vermilyea, lent the Dutchess County In- 
 surance Company ten thousand dollars, which sum was 
 paid back to their cashier the first time it was applied 
 for. When they were run for specie, — trembling, and 
 expecting to stop every hour, — the Dutchess County In- 
 surance Company lent them five thousand dollars, and 
 agreed to wait six months for its return, without any 
 other compensation than simple interest ; and the debt 
 is still due from the Morris Canal and Banking Com- 
 pany to the Dutchess Company. During the pressure 
 on the bank, William Bayard, Esq., called on me with a 
 
LIFE OF JACOB BARKER. 107 
 
 letter from Mr. Eckford, soliciting my assistance to tlie 
 amount of twenty-five thousand dollars, and guarantee- 
 ing to the amount of ten thousand dollars. The ten 
 thousand dollars I offered to furnish, without any other 
 compensation than lawful interest, but, the solidity of 
 the notes offered as security for the other fifteen thou- 
 sand dollars being to me unknown, I declined taking 
 them. At the same time, I stated that they could be 
 negotiated at a discount of thirty or thirty-three and 
 one-third per cent. This was deemed too much, and the 
 negotiation fell through. 
 
 " The district attorney, in his opening speech, told you 
 that Mr. Yermilyea and myself had had the management 
 of the finances of the Morris Canal and Banking Com- 
 pany, and that Mr. Eckford had stood aloof, but that 
 the funds had been purloined by Mr. Eckford, Mr. 
 Davis, and some others. On the trial, the president, 
 cashier, and clerks all swore that I had not, in a single 
 instance, intermeddled with their funds, nor had I ever 
 been in the office of the company ; but Mr. Gilchrist, 
 the cashier, said that money to a vast amount was paid 
 to the other gentlemen, and proved the checks of the 
 Morris Canal Company on the Fulton Bank, in favor of 
 Mr. Eckford, Mr. Davis, &c., which checks had been paid 
 and not accounted for, and no memorandum made of 
 their indebtedness. This was no concern of mine, the 
 witnesses all exonerating me ; but, as the district attorney 
 had coupled my name with the alleged fraud, I took upon 
 myself to interrogate Mr. Gilchrist, and exhibited by him 
 the whole imposition attempted to be practised. My 
 questions were, ' Is the published statement of the affairs 
 of the Morris Canal Company true or false?' He an- 
 swered, ' True.' * Did you help make up that statement ?' 
 
108 LIFE OF JACOB BARKER. 
 
 'I did.' 'It states about eight thousand dollars to be 
 the whole amount of the losses sustained by the bank 
 from its commencement : did you mean that the whole 
 losses of the bank had not been greater?' 'I did; and 
 still think so.' 'Are any part of those losses formed by 
 the money paid for those checks?' 'Not any.' 'Sup- 
 pose the money had been borrowed by the Morris Canal 
 Company of Mr. Eckford and others, and the same de- 
 posited in the Fulton Bank to the credit of the Morris 
 Canal Company, and those checks subsequently given 
 to pay them therefor : would not the affairs of the com- 
 pany have stood as they now stand?' 'They would.' 
 ' Then the company cannot have lost the money, or any 
 part of it.' 'No: it has lost nothing by the money 
 paid for those checks.' Here, gentlemen, you see how 
 monstrous is the conduct of these men, who are en- 
 deavoring to make it appear that giving checks to pay 
 money borrowed was making a fraudulent use of the 
 funds of the bank without security or compensation. 
 You will also bear in mind that Mr. Bayard stated 
 that Mr. Eckford had often lent the company money 
 when it was in want, and that the company had never 
 lent Mr. Eckford any. 
 
 "Here, gentlemen, you have the whole length, 
 breadth, body, and soul of my offending against the 
 Morris Canal and Banking Company ; excepting, in- 
 deed, that I am to be blamed for considering the laborer 
 worthy of his hire. For you must always remember 
 that I met at the threshold all applications for assist- 
 ance from that bank, with the declaration, ' If you wish 
 me to work for you I must be paid ;' and that the fee of 
 five thousand dollars was stipulated for at the com- 
 mencement of the negotiation for the return of the 
 
LIFE OF JACOB BARKER. 109 
 
 twenty-five hundred shares of stock, and in the presence 
 of Mr. Eckford and Mr. Ogden, both of whom were 
 directors of that bank and members of its finance com- 
 mittee. And yet you are told that I attempted to pro- 
 cure a commission from both sides ! Now, I never did 
 attempt to charge, or think of charging, Mr. Eckford 
 any thing, and, if I had, it would not have been charging 
 both sides ; for Mr. Eckford and Mr. Ogden were, as to 
 the bargain to be made by me, on one and the same 
 side, and the Fulton Bank was on the other side ; and 
 surely it has not been, nor will it be, pretended that I 
 charged the Fulton Bank a single cent for my services. 
 On the contrary, the moment the interest of my employ- 
 ers required a sacrifice on my part, I gratuitously oifer 
 to surrender my whole commission, this mighty five 
 thousand dollars, to the Fulton Bank ; and yet I am 
 charged with attempting to defraud both institutions. 
 
 "I am also charged with a conspiracy to defraud 
 Messrs. H. and G. Barclay, B. H. Hough, and E. W. 
 King. The two former gentlemen have been on the 
 stand, and you have heard them examined. Not one 
 word to my prejudice escaped their lips ; and the only 
 conspiracy to defraud that I know of, in connection 
 with them, is as sworn to by themselves ; that they, as 
 stockholders, and, as I have before said, as partners in 
 the concern, are endeavoring to divide the effects of the 
 Life and Fire Insurance Company among the partners 
 of the firm, to the exclusion of their creditors, on the 
 dishonorable plea that the bonds were unlawfully issued. 
 With such a conspiracy, gentlemen, please bear in mind 
 that I had nothing to do, — as I was not a stockholder, a 
 director, or an ofiicer of the Life and Fire Insurance 
 Company, nor its agent in the issuing or selling a single 
 
 10 
 
110 LIFE OF JACOB BARKER. 
 
 bond. As to Alderman King, the district attorney has 
 not dared to call him. He is an honest man, and my 
 neighbor ; and should he be called, he would on his 
 oath tell you that Jacob Barker has not either defrauded 
 him or done him or his family an unkindness in his 
 whole life. A lady is also introduced into this part of 
 the plot, a most worthy woman, Miss Ann Titus ; and 
 what did she swear? You must all remember how em- 
 phatically she declared that Jacob Barker had not, to 
 her knowledge, directly or indirectly defrauded her ; 
 that she had never thought he had done so, nor had 
 she ever said to a single human being aught to his 
 prejudice. 
 
 "We now, gentlemen of the jury, come to the most 
 fruitful source of misrepresentation, the affairs of the 
 Life and Fire Insurance Company. So far as I have 
 been connected therewith, the district attorney has 
 furnished abundant testimony that I have not had any 
 part or lot in the management of their affairs, with the 
 exception of lending them money on satisfactory se- 
 curity, selling some Fulton Bank stock, and accepting a 
 power of attorney to collect debts due, to pay all my lawful 
 claims, and hand the excess over to the company ; that 
 I have been faithful in my stewardship ; that I offered 
 to return all the securities received on the payment of 
 the money due ; and that, until a decision of the chan- 
 cellor could be had thereon, I offered to pay all that 
 could be collected into the hands of Lynde Catlin, Esq., 
 president of the Merchants' Bank. I never knew one 
 word about the manner in which the books have been 
 kept, until after the failure ; and, if I should remain on 
 trial until doomsday, not a single witness could be 
 brought who could gainsay that fact. I have had great 
 
LIFE OF JACOB BARKER. Ill 
 
 confidence in that company, and uniformly said so, and 
 all my conduct will square with that confidence. 
 
 "I have sold but few, very few, bonds. To Garniss 
 I sold some to raise money for the Dutchess Insurance 
 Company to use during my absence, but I bought of 
 him bonds to a far greater amount. In 1819, when the 
 aristocracy of Vf all Street were levelling all their artillery 
 at my Exchange Bank, and when other men of wealth 
 were frightened off from my support, Mr. Eckford 
 generously loosened his purse-strings, and, without pay, 
 price, or security, lent me large sums of money ; the 
 18th of June, 1819, when I had to lower my colors to 
 the allied forces, I, accompanied by my friend Mr. Hal- 
 leck, called him up at midnight and gave him security. 
 
 '' Gentlemen of the jury, the individual who thus 
 supported me in turn was disappointed in the receipts 
 he had a right to have expected in the payment for the 
 frigates he had built, which disappointment was wholly 
 owing to the failure of the Goldsmidts, — great bankers 
 of London. Under these circumstances, he applied to 
 me to aid the Life and Fire Company. I did so, and, I 
 believe, to his entire satisfaction. They secured me; 
 and is Henry Eckford to be blamed for approving of 
 having done for Jacob Barker in 1826 what Jacob 
 Barker did for Henry Eckford in 1819 ? 
 
 *'I have now gone through the motley group of 
 offences in the indictment, in addition to which, gentle- 
 men of the jury, the district attorney, in his opening, 
 made some statements which may be deemed worthy of 
 notice. Among other things, he said that I went to the 
 iron chest of the Life and Fire Company, filled my 
 pockets with bonds and mortgages, and went ofi" with 
 them. This allegation I pronounce in all its parts des- 
 
112 LIFE OF JACOB BARKER. 
 
 titute of truth ; and, notwitlistanding the pomp and 
 parade with which the district attorney put forth that 
 flourish, he has not asked a single witness a word about 
 it, although I have more than once lifted up to his re- 
 collection the iron chest. The district attorney, for the 
 purpose of casting an air of suspicion on my conduct, 
 declared that the Mercantile Insurance Company and 
 Jacob Barker are one and the same thing ; that Jacob 
 Barker had appointed one of his creatures its president ; 
 that he had so much of the stock as to regulate the 
 election as he pleased ; and that his talk about William 
 R. Thurston, or any other of the directors, was a mere 
 flourish ; that as to William B. Thurston, he was a mere 
 'creature of Jacob Barker,' a 'man of straw' in his 
 fingers. On producing testimony of the worth of that 
 gentleman, the district attorney admitted him to be a 
 gentleman of exemplary conduct, an old inhabitant of 
 this city, retired from a long life of commercial pursuits, 
 living on the fruits of his industry and economy, and 
 worth three hundred thousand dollars. It is not open 
 for inquiry ; the district attorney gratuitously admitted 
 it, I accepted it; he drove the nail, and I clinched it: 
 that point is therefore at rest, but I should like to have 
 a few more such men of straw in my fingers. 
 
 "Now, gentlemen of the jury, I have always con- 
 sidered a man of straw a very different sort of thing, 
 and as I am ignorant of what your notions may be on 
 the subject, and do not know of any other rule of judg- 
 ment than by comparison, it becomes my duty to describe 
 what in my judgment ought to be considered a man in 
 the hands of another, viz. : the district attorney is a 
 taller man than Jacob Barker, and probably stronger. 
 If the testimony furnished by the records of our crimi- 
 
LIFE OF JACOB BARKER. 113 
 
 nal court is to be believed, the district attorney has had 
 a collegiate education, and therefore has learned how to 
 string together a great many high-flown and melodious 
 words, and by their use to make a great mystery of very 
 simple things, and when supported at his nightly meet- 
 ings on the one hand by that demon Leavitt, and on 
 the other by the grave Cheesbrough, with his argus 
 eyes, he trims his midnight lamp, dips his malignant 
 pen in gall, and records the hellish deeds to which these 
 two preservers of the interests of absent stockholders 
 are to swear in court, there Jacob Barker is a man of 
 straw, a mere creature, which crumbles into dust in the' 
 hands of the district attorney; but when he comes 
 forth and meets Jacob Barker by the light of the meri- 
 dian sun, before this learned and just court, restrained 
 and regulated by the rules of evidence as laid down by 
 Philips, to be passed upon by an honest jury, then it is 
 that the district attorney is metamorphosed into a man 
 of straw, a mere creature in the hands of Jacob Barker, 
 and [here extending his arm and contracting his fingers 
 in the most impassioned manner] I will crack him all to 
 pieces, as I would a pipe-stem — [pausing and gently say- 
 ing,] gentlemen of the jury, observe, I do not mean to 
 do him any personal harm, no more than the jolly tar 
 meant to do to the $20 bank-note, when he on his top- 
 lifts went into the Mechanics' Bank and threw it down 
 on the counter, exclaiming to the teller, ' There, damn 
 you, crack it all to pieces ; I want some shiners that 
 will jingle, jingle, jingle,' at the same time patting his 
 pocket. Now, I only mean that I will here crack this 
 district attorney, this mere man of straw, this creature 
 in my fingers, all to pieces, the mere mention of which, 
 in connection with the highly-celebrated iron chest, shall 
 
 10* 
 
114 LIFE OF JACOB BARKER. 
 
 not only jingle, jingle, jingle, at his honor the mayor's 
 levees, but at the tea-party of eA^ery lady in town, not 
 even excepting that of the lady brought into court by 
 the district attorney to detail the social conversations of 
 the visitors to the family of her uncle, one of the 
 prisoners at the bar. 
 
 " The district attorney stated that Mr. Eckford and 
 Mr. Barker had conspired to change the directors of 
 the Fulton Bank about the middle of July for the pur- 
 pose of fraudulently using the funds of that bank, and 
 that we had a meeting at the Bank Coffee House for the 
 purpose of consummating the fraudulent schemes. Now, 
 gentlemen of the jury, you must remember the testi- 
 mony which has been adduced in support of this charge. 
 The bank had very disastrous dealings. Reports were 
 abroad that it had lost half its capital. Being very 
 deeply interested in the stock, and feeling that a failure 
 of the bank would prove disastrous to the moneyed 
 interest of the city, I stated these things to Mr. Eck- 
 ford, and he agreed with me in the opinion that the 
 interest of the bank required that it should be placed 
 under the administration of persons of great respecta- 
 bility who resided in the neighborhood. I told him that 
 all Brown and Spencer appeared to want was a loan; 
 and that he and I, in connection with the bank, had 
 better make such loan than for the bank to remain 
 lonsier in their hands. He told me to do what I liked in 
 the business, and if I lost by the operation he would 
 bear one-half thereof. The negotiation was set on foot, 
 and it was successful; and Messrs. Spencer, Brown, 
 Bathbone, Franklin, McCready, and John Brown did 
 resign on that day, and the day following the Bank 
 Coffee House meeting Richard M. Lawrence, Thomas 
 
LIFE OF JACOB BARKER. 115 
 
 Hazard, Jr., William R. Thurston, Nathan Comstock, 
 Barney Corse, and Charles Dickenson were appointed 
 to their places. Their respectability, wealth, and intel- 
 gence, together with that of William W. Fox, William 
 W. Mott, James Lovett, Robert C. Cornell, John R. 
 Willis, and John Flack, — all of whom it is in proof that 
 Mr. Barker endeavored to induce to accept of seats at 
 that Board, — forbid the supposition that any improper 
 use was to be made of the funds about to be placed 
 under the control of such men. 
 
 " Many of them have testified that Mr. Barker told 
 them, when he applied to them to take part in the man- 
 agement of the bank, that all he wanted was for them 
 to make it a good bank in their own way. Mr. Eckford 
 never took part nor lot in forming the new direction, nor 
 intermeddled in the business further than to recommend 
 to Messrs. Franklin and Rathbone to resign, and to go 
 with Mr. Barker to the Bank Coffee House to unite in 
 recommending G. W. Brown to do the same thing, and, 
 further, to advance some of the money towards the loan 
 to the Hudson Insurance Company. If Mr. Eckford 
 wanted any influence at that bank, is it probable he 
 would have recommended Messrs. Franklin and Rath- 
 bone to resign ? 
 
 " The hardship and injustice of this mighty mixture 
 of insurance companies, banks, stock-dealers, carpenters, 
 bankers, and brokers, are greatly beyond my power of 
 description. The district attorney seems to be a great 
 proficient in the art of compounding many simples into 
 one great mystery; and he seems to have electrified his 
 packed audience with the brilliant display of the gigan- 
 tic powers of his mind in this particular quality, — a 
 
116 LIFE OF JACOB BARKER. 
 
 quality, however, better adapted for an apothecary tlian 
 the student of Blackstone and Coke. 
 
 *'I have not, gentlemen of the jury, taken up your 
 time in reading or referring to law-books, for a very 
 good reason : I never read one in my life, although I 
 have looked into many. I did in the early part of this 
 trial read half a page from Burke, and I her€ beg leave 
 to recommend to your grave consideration the sentiments 
 of that great man, so beautifully expressed : — 
 
 " ' My lords, the Commons wait the issue of this cause 
 with trembling solicitude. Twenty-two years have been 
 employed in it, seven of which have passed in this trial. 
 They behold the dearest interests of their country 
 deeply involved in it ; they feel that the very existence 
 of this constitution depends upon it. Your lordship's 
 justice stands pre-eminent in the world; but it stands 
 amidst a vast heap of ruins which surrounds it in every 
 corner of Europe. If you slacken justice, and thereby 
 weaken the bonds of society, the well-tempered authority 
 of this court, which, I trust in God, will continue to the 
 end of time, must receive a fatal wound that no balm 
 can cure, that no time can restore. 
 
 " 'My lords, it is not the criminality of the prisoner, 
 it is not the claims of the Commons to demand judg- 
 ment to be passed upon him, it is not the honor and dig- 
 nity of this court and the welfare of millions of the 
 human race, that alone call upon you. When the de- 
 vouring flames shall have destroyed this perishing globe 
 and it sinks into the abyss of nature from whence it 
 was commanded into existence by the great Author of 
 it, then, my lords, when all nature, kings, and judges 
 themselves must answer for their actions, there will be 
 found what supersedes creation itself, — namely, eternal 
 
LIFE OF JACOB BARKEK. 117 
 
 justice. It was the attribute of the great God of na- 
 ture before worlds were, it will reside with him when 
 they perish, and the earthly portion of it, committed to 
 your care, is now solemnly deposited in your hands by 
 the Commons of England.' 
 
 ''The district attorney, in his opening, also told you 
 about erasures and false entries in the books of the Life 
 and Fire Company. Be this true or false, I had no 
 knowledge, part, or lot in it. It is enough for my pur- 
 pose to know that the books of the companies in which 
 I am employed are kept with marked exactness. I, 
 however, beg leave of such of the defendants as are 
 interested in that question to say that there is no evi- 
 dence of false entries, and that the two cases of erasures 
 appear to be a mere correction of a mistake in the 
 original entry, and the entries thus corrected, as sworn 
 by the receiver in chancery, are as they should be. 
 
 "For the purpose of proving fraud on the bond- 
 holders, the district attorney at one moment makes the 
 Life and Fire Company utterly insolvent, and in the 
 next, for the purpose of proving fraud on the stock- 
 holders, he makes out that there is something left for 
 them after paying all their debts. He reminds one 
 of the expressions of Robinson Crusoe's man Friday 
 to his master : — ' You blow to warm your fingers, you 
 blow to cool your soup : you blow hot and you blow cold 
 with the same breath : you must be possessed with some 
 evil spirit.' So much and no more reason has the dis- 
 trict attorney for inferring fraud from the evidence 
 produced. 
 
 "I find myself denominated a broker in the bill of 
 indictment, which is not true. I am not, nor was I 
 ever, a broker. I mean no disparagement to the gen- 
 
118 LIFE OF JACOB BARKEE. 
 
 tlemen who belong to tliat profession. I know many 
 of them to be among our most meritorious citizens. 
 Many of them are my personal friends, whom I not only 
 respect, but love. But I am so described on a sudden for 
 a fraudulent purpose. A broker's commission is one- 
 fourth of one per cent., while a commercial commission 
 is two and a half to five per cent., according to circum- 
 stances. I have charged the Life and Fire Insurance 
 Company two and a half per cent., and this, for a broker, 
 might well be considered a fraud, if it was unaccompa- 
 nied with any redeeming explanation, while perfectly fair 
 and proper in a commission merchant ; but under what 
 circumstances is this made ? Mr. Eckford had rendered 
 me great assistance when I was in difficulty, and in re- 
 turn he had a right to expect me, when he requested it, 
 to give aid to the Life and Fire Insurance Company, 
 over which he presided, and in the support of which his 
 purse and pride were enlisted. 
 
 ''He applied to me to become the agent; I cheerfully 
 offered my services. He wished to stipulate for an ade- 
 quate compensation ; I declined, and he promised to see 
 me paid when it was over. You have seen with what 
 fidelity and success I carried on all these negotiations. 
 The object for which I embarked was lost in the failure 
 of the company, and it then became a mere matter of 
 interest. I therefore placed in the account rendered to 
 the receivers a commercial commission of two and a half 
 per cent., which I think I richly earned; but observe, 
 gentlemen, the remarks I made when I delivered the 
 account. Mr. Hoffman, one of the receivers, has told 
 you, when called as a witness by the district attorney 
 on the part of the people, that I stated that the charge 
 was only intended to lift the subject up to the view of 
 
LIFE OF JACOB BARKER. 119 
 
 the chancellor, explaining, at the same time, the terms 
 on -which I had embarked, and that I considered the 
 chancellor, when he should pass on the accounts, to be 
 at perfect liberty to reduce or expunge the charge, if he 
 should think proper to do so ; and that I should not 
 insist on any pay. In consequence of this unexpected 
 disclosure of the testimony, you will not hear one word 
 from the district attorney about my being a broker, or 
 the enormity of the charge, both which would otherwise 
 have been most fruitful sources of crimination. 
 
 " Gentlemen of the jury, I have already mentioned 
 that I had not taken a single note, nor have I read any 
 of those taken by others. One of the gentlemen, how- 
 ever, has furnished me with a list of the names of the 
 witnesses, which will call to my recollection what they 
 said; and, so far as I may consider such testimony as 
 affecting me, I must examine it, although very unwill- 
 ing to trespass so long on your time. These proceed- 
 ings against me, gentlemen of the jury, I have more 
 than once told you were urged on by the moneyed aris- 
 tocracy of Wall Street. They have become desperate. 
 They know it is now or never, and that if they do not 
 now succeed in destroying Jacob Barker he will polish 
 the paving of the vaults of such of the banks as have 
 joined in this unholy war. 
 
 " Seixas Nathan. — This witness stated that not one 
 dollar was paid to me of the proceeds of the water or 
 gas stock sold by him for the Life and Fire Insurance 
 Company which had been received from Malapar ; and 
 this, gentlemen of the jury, you vrill recollect, the dis- 
 trict attorney said most boldly had been ^^ut into my 
 pocket by Mr. Nathan. 
 
 ^' David B. Ogden, Esq., told you that he was a 
 
120 LIFE OF JACOB BARKER. 
 
 director and one of the finance committee of tlie Morris 
 Canal and Banking Company, and that I had acted with 
 fidelity, zeal, and capacity in the agency I undertook 
 for that bank ; that I did all that was expected of me ; 
 that Mr. Eckford was present when he requested my 
 assistance, and when I required $5000 commission if 
 successful, and if not successful no compensation, and 
 that he promised to do all he could to get for me the 
 fee, and the minutes of the proceedings of the directors 
 of the Morris Canal and Banking Company prove 
 that he had unlimited powers conferred on him to con- 
 summate this negotiation ; and that after this, and after 
 knowing my terms, he urged me to continue to exert 
 myself ; that I had, either for myself, or for the Dutchess 
 County Insurance Company, lent the Morris Canal and 
 Banking Company $5000 for six months, without any 
 other compensation than simple interest; and that I 
 had not, to his knowledge, directly or indirectly de- 
 frauded the Morris Canal Bank. 
 
 " Robert Gilchrist, cashier of the Morris Canal Bank, 
 confirmed the statement about the loan of $5000, its 
 being yet due, and the return of the $10,000, and stated 
 that I had not, to his knowledge, defrauded that bank. 
 
 "Abraham Ogden, Esq., confirmed the statement of 
 Mr. Gilchrist, adding that he had not before heard of 
 the claim for the $5000, and that he did not think it 
 right for me to claim it. Every one who knows Mr. 
 Ogden will give full credit to his testimony, so far as 
 to good intentions and the facts within his recollection; 
 but he, no doubt, has forgotten the circumstance, as 
 David Leavitt swore that he communicated the fact of 
 the commission to the board of directors when Mr. Ogden 
 was present. 
 
LIFE OF JACOB BARKER. 121 
 
 ^' William Bayard, Esq., the assistant president of 
 the Morris Canal Bank, confirmed on his oath all my 
 statements relative to that bank, so far as they had 
 come to his knowledge. 
 
 "A lad seventeen years of age swore that I had bor- 
 rowed ten thousand dollars of the Morris Canal Bank ; 
 that I had paid it ; that I had lent that bank five thou- 
 sand dollars ; that it was yet due me ; but that my con- 
 duct had been dishonorable. That he got his informa- 
 tion from others ; that he had not seen me, nor heard 
 me speak of the transaction to which he alluded, except 
 that when Mr. Tallman sent him with part of the money 
 to the Dutchess Company he saw me in the ofiice, and 
 I pointed out Mr. Halleck, the secretary of that com- 
 pany, as the proper person to receive it."*" On being 
 asked why he accused me of dishonor, he stated that his 
 object was to do away the testimony of Mr. Gilchrist, 
 the cashier, who he supposed did not understand the 
 subject. I asked him if he heard Mr. Gilchrist give his 
 testimony. He said no, but that he had seen David 
 Clarkson and Robert L. Reed together. That Mr. Reed 
 had told him what Mr. Gilchrist had said, and that Mr. 
 Clarkson had sent him to the district attorney to confer 
 as to what he should say on the subject, and that he had 
 been with the district attorney before to explain as to 
 the testimony he was to give on this trial. On being 
 questioned further as to his reasons for considering my 
 
 * These $10,000 were in the notes of the Morris Canal Bank : to 
 oblige the bank, Mr. Barker undertook to use them in the business 
 of the Dutchess Company, so far as should be found convenient. 
 Most of them, not having been used, were returned, with the money 
 for such as had been used. 
 
 11 
 
122 LIFE OF JACOB BARKER. 
 
 conduct dishonorable, lie stated that Mr. Gilchrist had 
 told him that I disputed the payment of a trifling claim 
 for interest. He was then reminded of the debt of 
 $5000, and asked if the bank could not pay themselves 
 the trifling interest-claim out of it. He said no, because 
 they had given security. The court then asked, What 
 security ? He answered, Morris Canal stock. This last 
 fact sufficiently proves that he did not understand what 
 he was swearing to, and that he had been a trained wit- 
 ness, sent here by the conspirators for my destruction, 
 to insult me. Yes, gentlemen of the jury, a beardless 
 boy, in the employ of a bank which I had saved from 
 insolvency, was sent here to insult the father of twelve 
 children. As to the security, the indebtedness of the 
 company bound all their stock and effects, and if they 
 could not pay the debt the stock was good for nothing. 
 What would it avail the holder of a life and fire bond to 
 have as security life and fire stock ? The object and 
 effect of security is to have something to resort to in 
 case the principal fails. The stock, in case of the failure 
 of the company, would afford no such resort, any more 
 than for a man to endorse his own note would give secu- 
 rity for its payment. 
 
 " David Leavitt swore that he had divulged to the 
 directors of the Morris Canal Company the communica- 
 tion that I had made in confidence to the directors of 
 the Fulton Bank about my commissions. He swore that 
 he, on behalf of the Fulton Bank, employed Mr. Barker 
 to go and loan $20,000 to the Hudson Company, of 
 which one-half was to be furnished by, and at the risk 
 of, Mr. Barker and Mr. Eckford, on the supposition that 
 $100,000 would carry the Hudson Company through all 
 their difficulties; knowing at that time that the bank 
 
LIFE OF JACOB BARKER. 123 
 
 had a claim at sight for $163,000 on that company, with 
 which he could overwhelm it at any moment, and know- 
 ing also that they were on the eve of bankruptcy, and 
 that he, a day or two before, had got all their securities 
 that were considered of any value ; the whole of which 
 he preserved a death-like secret from me. 
 
 " Gentlemen, you saw how he winced and claimed 
 protection from the court when I attempted to make 
 him tell his connection with Malapar, and the white-lead 
 works, and the marble bonds. You heard him ask me 
 'if I expected him to impeach himself;' and because I 
 could not help telling him that 4ie had already done it/ 
 this honorable court was greatly offended, and required 
 me to promise to appear before them when this trial was 
 over and answer for the offence. You saw how he pre- 
 varicated and attempted to evade my every question put 
 with the view, the single view, of wringing from him the 
 secrets of his heart; and I am greatly indebted to the 
 unexampled skill and success of Mr. Williams, counsel 
 for the other defendants in* this case, in eliciting from 
 him what I had failed to make him acknowledge. When 
 this man first heard of my indictment, he clapped his 
 hands, roared out a loud laugh in the presence of all the 
 clerks in the bank, jumped over a bench standing by his 
 side, and spun round in a joyous delirium at the pros- 
 pect of glutting his vengeance. Not content with the 
 mischief done me, he calls on that venerable gentleman, 
 [pointing to Mr. Hazard,] whose head has been whitened 
 wdth the snow of nearly seventy winters, and tells him 
 that his son-in-law, Jacob Barker, was very much de- 
 pressed and dispirited about this indictment. Gentlemen 
 of the jury, I put it to you to say whether I either look 
 like, or have acted in any part of the trial like, a de- 
 
124 LIFE or JACOB BAEKER. 
 
 pressed and dispirited man, one overwhelmed with con- 
 scious guilt. Please look at me, gentlemen of the jury, 
 and say on your oaths whether or not you think any 
 man could with truth have thus characterized me. But 
 suppose it had been so, and that David Leavitt^ a hypo- 
 critical professor, had known it : was it kind, was it fair. 
 was it manly, for him to disturb the happiness of such a 
 man as Mr. Hazard, and such a family as his, with the 
 relation of the dishonor of a branch of that family ? No ; 
 such conduct could not have emanated from any feeling 
 but the most diabolical spirit of malignancy. He swore, 
 on this trial, to state all the facts he knew ; in place of 
 which he travelled out of the record to insult a prisoner 
 at the bar, by swearing he had committed a fraud, with- 
 out telling in what particular ; and, when he came to be 
 cross-examined by that prisoner in person, it turned out 
 that he, Leavitt, and not I, had committed the fraud. 
 He swore that the negotiation for the return of Morris 
 Canal stock was not completed, because Jacob Barker 
 flew from his bargain. On fhe cross-examination it was 
 proved that it was Leavitt, and not Barker, who had 
 flown from the bargain, and, besides, that he had been 
 treacherous to his associate directors in the business. He 
 swore that Barker had nothing to do with the final close 
 of the barcrain. On the cross-examination it turned out 
 that Jacob Barker was the very pivot on which it turned. 
 He swore fraud in the lump against an individual, and 
 detailed facts which, if true, made that individual carry 
 off half the capital of the bank ; and, at the very close 
 of these denunciations, he swore that that individual had 
 not intended to do any wrong. He swore that he had 
 communicated to Clarkson the secrets of the bank, in 
 violation of the resolution of the directors, and thus en- 
 
LIFE OF JACOB BARKER. 125 
 
 abled Clarkson, as he swore he did, to palm off upon me 
 a large amount of stock at eighty which was only worth 
 twenty-five. He, Leavitt, swore that my check received 
 from Davis was only $1000 or $1200, when it was 
 proved to be for $12,757 50. Yes, gentlemen of the 
 jury, the man who swore fraud against me made all 
 these false statements, and further admitted, on his 
 cross-examination, the corrupt bargain he made with 
 Mr. Cheesbrough ; that the bank paid eleven-tvfelfths of 
 $2000 of the $6000 bonus, pui-suant to the terms of a 
 resolution of the directors; every line of w^hich, when 
 taken in connection with the deed it affected to hide 
 from all the other dii^ectors, carries fraud, falsehood, 
 and deception on the face of it. The residue of this 
 bonus, say $4000, this Leavitt swore he paid to Chees- 
 brough; that he received back $2000 of it from Mark 
 Spencer; that Mr. Spencer was to be reimbursed for it 
 by interest on overdrawings ; that he ordered the clerk 
 of the bank to pay Mr. Spencer's checks for $68,000, 
 without funds and without security, and to keep these 
 checks in his drawer for three weeks, by which means 
 his account did not appear overdi-awn ; and the facts of 
 the case were thus hid from the directors, and Leavitt 
 enabled to pocket these two thousand dollars interest- 
 money received from Mr. Spencer, without appearing to 
 rob the bank. He tells you, further, that he intended 
 also to have got the other two thousand dollars from the 
 vaults of the bank, but by what new device or fraud he 
 did not vouchsafe to tell you. 
 
 " The iniquity of this man does not end here. After 
 having, under the guise of paying a president, and that 
 in advance too, for his most faithful services until April, 
 
 1827, he meant for him to resign the moment of the 
 
 11* 
 
126 LIFE OF JACOB BARKEK. 
 
 passage of that resolution, and from that time he him- 
 self to have an equal salary from the stockholders, who 
 had already lost almost their last dollar by the conduct 
 of these rapacious men. But, finding himself disap- 
 pointed in his election as president, he again resorts to 
 bargaining, and agreed with Mr. Brown, if he would 
 vote for his election, that he would allow him to receive 
 the whole salary for one year. 
 
 " The $68,000 before alluded to will be lost to the 
 bank, if the stockholders do not enforce their legal 
 rights against David Leavitt's personal property. How 
 did the accounts stand during Mr. Cheesbrough's admi- 
 nistration? Why, the Hudson Company and its presi- 
 dent were in the habit of drawing through the day for 
 what money they wanted, making the account good at 
 three o'clock. In place of which, David Leavitt, as 
 soon as he was elected president, according to his own 
 account, orders the checks to be paid and not charged, 
 but to be kept hid in the drawers for three weeks, to 
 enable him to get his $2000 interest without being de- 
 tected, and that too to the amount of $68,000, without 
 a particle of security; and thus the Hudson Company 
 and its president were released from all obligation to 
 make deposits at three o'clock, or at any other time be- 
 fore the expiration of three v,^eeks; and- before that 
 time the Hudson Company and its president failed. 
 
 -' Monstrous ! And are these things to be permitted 
 by men intrusted with the care of the funds of others, — 
 men that are paid for such care ? And if one of the suf- 
 ferers complains of such faithless conduct, is it to be 
 tolerated that he is to be dragged here, disqualified 
 from giving testimony, and branded with infamy by the 
 guilty offender who is yet permitted to roam at large? 
 
LIFE OF JACOB BARKER. 127 
 
 ^'Here, gentlemen of tlie jury, I have given you a 
 faithful narration of this man's conduct as sworn to by 
 himself. It speaks for itself; to attempt to delineate its 
 enormity would be insulting your understanding. And 
 this is the man who dared to swear fraud against me, 
 when there was no fraud; and, if there had been, it was 
 your and not his prerogative to characterize it. 
 
 "David Clarkson swore that he purchased of me krge 
 amounts of Fulton Bank stock, in the months of March, 
 April, and May, on credit; that he had paid for all ex- 
 cept fifty shares; that I had honorably fulfilled all my 
 bargains in relation thereto; that about the 10th of 
 July he gave me §50 for the privilege of delivering to 
 me two hundred shares any time within sixty days 
 thereafter at eighty; that he had delivered the stock, 
 and that I had paid him for it ; and he exultingly said, 
 'You lost greatly by the bargain;' but he did not say 
 that David Leavitt had communicated to him the disas- 
 ters of the bank by which the value of the stock was 
 reduced to twenty-five per cent., and that this enabled 
 him to shave Mr. Barker. At the same time, gentle- 
 men of the jury, when one David was, by his own oath, 
 in constant communication with the other David about 
 the secrets of the bank, he was, by the oath of Mr. 
 Nevins, very reserved in his communications to that 
 gentleman about the business of the bank. Mr. Clark- 
 son also swore that when one hundred of those shares 
 boudit of Mr. Barker became due, he called on him and 
 refused to take them, supposing they were part of the 
 two thousand shares received by the Life and Fire In- 
 surance Company in exchange for the Morris Canal and 
 Banking Company stock. On Mr. Barker's assuring 
 him they were not, he agreed to pay for them; that he 
 
128 LIFE OF JACOB BARKER. 
 
 did paj $2000 on account, pursuant to agreement, and 
 promised the balance in four days, — at the expiration 
 of which he again refused, when some very hard words 
 passed between us ; immediately after he sent his part- 
 ner to me with an apology, and a thousand dollars on 
 account, as a pledge of his sincerity. He further stated 
 that the subject was before the grand jury, (gentlemen, 
 observe, the grand jury which refused to find a bill 
 against me,) when he refused com^plying with the terms 
 of adjustment stipulated at the termination of his first 
 dispute, no doubt, in the hope that the grand jury would 
 furnish him with an excuse for not paying, by finding a 
 bill against me. Mr. Clarkson, on his oath, admitted 
 that he had refused to pay for fifty shares of Fulton 
 Bank stock purchased of me, because they were a part 
 of the two thousand shares received by the Life and 
 Fire Company in exchange for Morris Canal and Bank- 
 ing Company stock, which exchange he denominated a. 
 swindling transaction, and that I had instituted a suit 
 against him for the recovery thereof; therefore he must 
 think if you should award the transaction fraudulent, it 
 will insure him success against the pending suit for 
 those fifty shares. A most disinterested witness, truly, 
 to give testimony on this trial ! If this was a suit for 
 five dollars, the testimony of such a witness would not 
 be taken ; yet in a suit where every thing dear to man is 
 at issue, we are not allowed to put forth that plea. 
 
 "Jacob Clinch, cashier of the Fulton Bank, confirmed 
 my statement as to the payment of $30,000 to the cre- 
 dit of William P. Rathbone, for the redemption of three 
 hundred shares of stock in that bank, and of the little 
 business I had transacted with that bank. The Life 
 and Fire book with the Fulton Bank, together with the 
 
LIFE OF JACOB BARKER. 129 
 
 clerk of the Mechanics' Bank, proved the check of Jacob 
 Barker, received by Mr. Leavitt from Mr. Davis, to 
 have been $12,757 50, on the 6th July; and this check, 
 gentlemen of the jury, you will please to take notice, 
 Leavitt swore was for only $1000 or $1200, although 
 he never received but one check, perfectly recollected 
 it, and the day on which he received it, and urged the 
 smallness of the amount as an excuse for what he wished 
 to make criminal in the clerks. When he swore to the 
 amount, you must remember that I rose and cautioned 
 him to be careful and to reflect ; that I meant to tax his 
 recollection severely ; that I should hold him answerable 
 for the mistake if he made any, and that, if he did not 
 remember, he had nothing to do but to say so. He still 
 persisted in averring that it was only for $1000 or 
 $1200. Using the mildest terms, how frail was his re- 
 collection ! and what reliance can you place on any part 
 of his testimony? 
 
 "I never entered into an association for purchasing a 
 controlling influence over but one bank ; and that was 
 several years past, in relation to the North River Bank, 
 and for the most praiseworthy purposes. In that case, 
 myself and my associates purchased and paid the money 
 for a majority of the stock, and were opposed by those 
 who held their stock by virtue of stock notes to the bank 
 itself; and yet we brought such a hornets' nest about 
 our ears, that we were glad to accept the first good offer 
 and sell out, since which I have been well pleased to 
 keep clear of such scrapes. 
 
 "I have not had any part in the partial distribution 
 of the stock of the many banks and insurance companies 
 that have been incorporated. I have not lent my name 
 to others to subscribe for stock, nor have I, with a tri- 
 
130 LIFE OF JACOB BARKER. 
 
 fling exceptioHj offered to subscribe to any of them for 
 mjself or for others. Whenever I want stock, I do not 
 humble myself to commissioners or directors, but I go 
 into Wall Street, and there exert the right secured to 
 every citizen, viz. to purchase and pay for as much or 
 as little stock as I please, without holding myself ac- 
 countable to a human being therefor. 
 
 "John I. Boyd swore that I met him on Sunday 
 morning and inquired the news; that he told me the 
 Tradesmen's Bank had been enjoined; that I replied, 
 * This is no news : I heard it at Bloomingdale last even- 
 ing;' that I told him it would be a very serious thing 
 for one of the city banks to stop payment, that there 
 was no knowing where it would stop ; that he should go 
 and see the president, and that they had better consult 
 Mr. Catlin, Mr. Eckford, and others on the business, 
 and that I would go to my office and wait two hours, 
 where he, Mr. Boyd, might apply in case he could make 
 me useful. And here is an attempt to. make it a crime 
 in Jacob Barker to have heard in the evening, four miles 
 in the country, a matter of fact known to the whole city 
 early in the afternoon; a fact of such vast importance 
 to the city and to the nation, and which related so im- 
 mediately to the business in which he was very exten- 
 sively engaged. 
 
 "Gentlemen of the jury, if Jacob Barker had not 
 known it that evening, the public would have considered 
 him totally unworthy of the high reputation they had 
 awarded him for keeping, as the sailors say, 'a bright 
 look-out.' 
 
 "It is universally admitted that Wall Street, with all 
 its sins, decried as it is, regulates the finances of the na- 
 tion; on the operations of that street depends the whole 
 
LIFE OF JACOB BARKER. 131 
 
 commerce of the country. It is like the heart of man, 
 through which the blood from every extremity of the 
 body has to circulate. Then, I ask you, was the solici- 
 tude manifested by Jacob Barker, on the happening of 
 what was likely to shock the fabric on which the finances 
 of the nation depended, strange, — so strange as to war- 
 rant the conclusion that he was a guilty conspirator ? 
 Had he been interested in the bank, would not his own 
 vanity, the confidence he feels in his own ability to con- 
 duct a difiicult affair, have led him into the heat of the 
 battle ? Would he not have done as he did at the Ful- 
 ton Bank, — rushed into the thickest of it, placed himself 
 in the front ranks, pledged his own money and stock, 
 and exhorted the directors to save the bank from ruin ? 
 But he goes quietly to his ofiice, promising to wait two 
 hours, to be called on by Mr. Boyd, if he could be made 
 useful: perhaps he wanted another $5000 fee. 
 
 "In relation to the Fulton Bank and the Tradesmen's 
 Bank, Mr. Barker's conduct was as different as the 
 interest he felt in the two institutions ; and, although 
 directly opposite, you, gentlemen of the jury, are called 
 upon to construe both alike as evidence of a guilty con- 
 spiracy. 
 
 "Mr. Boyd tells you also that he was in the constant 
 habit of consulting Mr. Barker about various branches 
 of business ; that he held the opinions of Mr. Barker in 
 high estimation, and that Mr. Barker always gave them 
 freely and fearlessly, regardless of the consequences to 
 himself or to others. Mr. Boyd also confirmed the state- 
 ment about his plan for harmonizing the difficulties in 
 relation to the Tradesmen's Bank, and stated that so far 
 from considering it a secret, or myself interested, I jo- 
 cosely mentioned the brilliancy of the scheme to Alder- 
 
132 LIFE OF JACOB BARKER. 
 
 man Thorne, one of the disputants whom we happened 
 to meet at the time, whereupon Mr. Boyd upbraided me 
 for letting out his secrets. Mr. Boyd also swore that 
 nothing had happened at any time, either before or after 
 the election, that led him to suppose I had any interest 
 or agency in the purchase of the bank. 
 
 "I do not mean, gentlemen of the jury, to be under- 
 stood, by the zeal manifested to rid myself from all sus- 
 picion of being a participator therein, as subscribing to 
 the doctrine that I had not as much right to purchase 
 stock in the Tradesmen's Bank as any other stock. But, 
 as the truth is that I had not any concern therein, I feel 
 it my duty to have the whole truth set before you. Pur- 
 chasers of public stock owe the stockholders no other 
 duty than the common duty of being good citizens. Not 
 so with the sellers in this case : they were directors, and 
 became possessed of the power to control the bank prin- 
 cipally by using its funds to buy up a majority of the 
 stock. Whether this was right or wrong is not now the 
 subject of inquiry; but it was certainly wrong to dispose 
 of the control of the bank thus acquired to any person, 
 and especially to an unhnown purchaser, without con- 
 sulting the stockholders, whose money they had been 
 thus diverting from legitimate banking to the acquisition 
 of such power, and whose funds were thus to be set 
 adrift, without compass or chart, while their own stock 
 was most carefully withdrawn, and a bonus or prepaium 
 of $84,000 obtained for the exclusive benefit of the sell- 
 ing directors. I say, this was most certainly wrong. 
 When I first heard of the sale, which was first mentioned 
 to me by B. F. Butler, Esq., who had accidentally heard 
 it in Wall Street, I exclaimed, 'If Jacob Barker had 
 done this, the world would ring with his infamy.' Now, 
 
LIFE OF JACOB BARKER. 18 
 
 Q 
 
 gentlemen of the jury, I do not mean to say that the 
 professional or other men concerned in this sale supposed 
 they were doing wrong : such a thing never entered 
 their heads. Their whole life, and the faithful discharge 
 of their judicial and official duties in the situations 
 which some of them have so long and faithfully filled, 
 forbid such a supposition; but they were deluded and 
 captivated with the boon held up to their view, and a 
 profit of §84,000 by a single bank speculation could not 
 be resisted. They had heard of Lawton's, of Prime's, 
 and of Garniss's splendid speculations, and wished to 
 figure a little in the financial world ; and, having studied 
 ^ Coke upon Littleton,' more than they had 'Smith's 
 Wealth of Nations,' they considered only their legal 
 rights over the stock, forgetting at the moment their 
 duty to the widow and orphan, of Avhose rights they had 
 become the legal guardians. So bent were they on se- 
 curing the prize, that about the very day of the election 
 they distrusted the commissioners appointed by them- 
 selves to superintend the election, and, without any fault 
 on the part of those commissioners, ingloriously dis- 
 missed them, and appointed others more likely to, con- 
 summate their wishes. One of their own number resigned 
 his seat as a director for the purpose of becoming one of 
 those inspectors, and absolutely performed the ceremony 
 in such a manner as the Supreme Court has since passed 
 condemnation upon. Yet most of these men escape the 
 notice of the district attorney further than to be brought 
 here to aid him in the unholy work of destroying me for 
 daring to tell them of their errors, and for having, as 
 before stated, protected all the institutions intrusted to 
 my care. 
 
 ^'The district attorney, in his efforts to find something 
 
 12 
 
134 LIFE OF JACOB BARKEE. 
 
 to my prejudice, has not left any stone unturned. He 
 sent an oiEcer to bring a sick man from Flushing to say 
 that I had told him last October or November that I 
 considered the Life and Fire bonds good, that I repeated 
 the same thing to him in April or May, and that I was 
 profiting by their purchase and supposed that he could 
 not do a better business, and not that I offered to sell 
 him any, either as principal or agent. 
 
 "If the district attorney had asked me, I would have 
 admitted that I should, had I been consulted, have ex- 
 pressed every day in the year the same strong confi- 
 dence, down to five days prior to the failure of the com- 
 pany. That was my opinion; and I have never been 
 known to disguise or withhold my opinion on any sub- 
 ject. Mr. Nevins has also been called to say the same 
 thing. To me it is astonishing, considering the pains 
 the district attorney has taken, that he could not find 
 more than two persons to say that I had intermeddled 
 further with this branch of the business. Much stress is 
 laid on the terms I used to convey the confidence I felt. 
 These two witnesses say, I said I knew ; I have no re- 
 collection of having used that word ; I meant to convey 
 the most implicit confidence, and may have used it, but 
 I never did intend to convey the idea that I had any 
 other knowledge than that derived from the representa- 
 tions of the ofiicers of the company. I believed, and yet 
 believe, they were all sincere in their representations, 
 and I cannot think myself culpable for confiding therein. 
 Neither witness intimated that he supposed I meant 
 any thing beyond what I have here stated, nor do I be- 
 Jieve such a thought ever entered their heads; neither 
 purchased in consequence of my recommendation; nei- 
 ther lost by the bonds ; neither complains of being de- 
 
LIFE OF JACOB BARKER. 135 
 
 frauded. And what better proof can you have that no 
 evidence can be found against me, than the shifts to 
 which the district attorney resorts in collecting together 
 these straws and feathers 4ight as air,' on which to erect 
 a fabric of guilt ? My principal offence appears to have 
 been in inspiring confidence by purcTiasing, not selling, 
 those bonds. Are not Colonel Fish, his broker, and all 
 other purchasers alike chargeable with the same sin, if 
 a sin it be? No one thinks of indicting, much less of 
 convicting, either of them for a conspiracy, because they 
 purchased and paid for those bonds, anymore than they 
 do of indicting or convicting David Clarkson, or the 
 numerous persons who had Fulton Bank stock trans- 
 ferred to them, which they advanced money on, sold, paid 
 for, or purchased, as best suited their pleasure or conve- 
 nience. Thus, what is considered perfectly innocent in 
 others is to be considered a crime in me. 
 
 ^'I beg you to remember that all my transactions 
 with the Life and Fire Company have been of the most 
 simple character, down to the day of the failure, when 
 they appointed me their attorney in fact, to make certain 
 collections for them. Since then my conduct has not 
 been called in question. First, I lent them money. 
 Second, I sold for them 1500 shares Fulton Bank stock, 
 the account of w^hich the district attorney was pleased 
 to say he had not the least doubt was correct, when he 
 introduced it as evidence. And I did, at the instance of 
 one of their directors, Mr. Rathbone, give an obligation 
 to deliver Mr. Gouverneur five hundred shares Trades- 
 men's Bank stock, which obligation was promptly ful- 
 filled. It was given in consequence of the Western Com- 
 pany (in which I was an officer) having advanced on 
 eight hundred shares, for which they had not settled 
 
136 LIFE OF JACOB BARKER. 
 
 with Mr. Rathbone, and which it was not convenient for 
 them at the moment to return. Here you have all my 
 connection with the Life and Fire Insurance Company ; 
 and I would ask you to say, in the sincerity of your 
 hearts, if I had not a perfect right to do all these things, 
 without subjecting myself to the charge of impropriety 
 of conduct or intention. 
 
 "Several witnesses testified that I had been in the 
 habit of regulating the price of the bonds of the Life and 
 Fire Lisurance Company ; but, on being cross-examined, 
 they all admitted that they only meant that the exten- 
 sive purchases made by me disappointed them in a por- 
 tion of the profits they would have got had I not been a 
 competitor in the market. Hence the hostility of the 
 fraternity of brokers. An attempt was made to enlist 
 your prejudices on account of the indignation manifested 
 by me at the boy being sent here from the Morris Canal 
 and Banking Company to requite me for saving that 
 bank from ruin. And if I should put my threat, to dis- 
 miss that bank from Wall Street, into prompt and full 
 effect, Avho would blame m.e? Should I not be perform- 
 ing the duty of a good citizen? Has it not been abun- 
 dantly proved that they are conducting a banking-busi- 
 ness in Wall Street in open violation of the lavfs ? — thus 
 depriving the State of a tax paid for the privilege of 
 banking by all the incorporated institutions in this 
 State. 
 
 " Mr. Wetmore stated that Messrs. Brown and Spen- 
 cer told him that Mr. Eckford and myself had promised 
 to loan the Hudson Lisurance Company $100,000; that* 
 the agreement was reduced to writing, but that he had 
 not seen it. Let the agreement be produced before any 
 bad faith is ascribed to me. Every promise made to 
 
LIFE OF JACOB BARKER. 137 
 
 those gentlemen was honorably fulfilled ; and I defy the 
 district attorney to produce a single witness who shall 
 say that he ever heard Mr. Spencer impute to me any 
 want of compliance ; and, surely, after the disclosure, no 
 one will pretend that $100,000 would have saved the 
 two companies. 
 
 ''Murray HoiFman, Esq., a receiver appointed by the 
 chancellor to receive the effects of the Life and Fire 
 Company, stated that that company were indebted to 
 me $130,000, of which $98,000 had been lent without 
 discount or commission ; and that the said company were 
 indebted $80,000 or $90,000 to the Mercantile Com- 
 pany, and $50,000 or $60,000 to the Western Company; 
 and he confirmed all my statements about the securities 
 received. And is there a man on earth that would not 
 have obtained pay or security for such large debts if he 
 had an opportunity of doing so ? 
 
 " Mr. Mitchel, and many others, will prove great and 
 complicated employments and the most faithful conduct. 
 I say these things that you may see that others besides 
 the Life and Fire Insurance Company have deemed me 
 worthy of the most extensive agencies. 
 
 '' Thaddeus Phelps testified that Samuel Hicks, J. & 
 C. Bolton, and himself, had been employed in 1823 to 
 negotiate a loan of $200,000 or $300,000 for sundry 
 persons at New Orleans; that they had endeavored to 
 obtain it from Messrs. Costers, Prime, Hones, and others, 
 but that all their efforts were unavailing ; that applica- 
 tion was made to Mr. Barker ; that he required a fee of 
 $5000 ; it Avas paid him ; he undertook the agency, was 
 successful, and most completely satisfied his employer, 
 whose confidence in him remains undiminished. 
 
 " The district attorney endeavored to make R. L. 
 
 12* 
 
138 LIFE OP JACOB BARKEE. 
 
 Kevins say that he had reasons for thinking I kne^v 
 about the affairs of the Life and Fire ComjDanj, when 
 he expressly swore that he had not any other reason for 
 thinking so than the freedom with which I purchased the 
 bonds, and the confidence I expressed in their goodness. 
 
 "It has been attempted to urge as a crime the high 
 fees I charge. Let it be remembered that it has been 
 proved that I work at any time, and at all times, for my 
 acquaintances when required to do so, without price or 
 pay, and with equal zeal and fidelity as if I were to re- 
 ceive the highest commission. And let it be always re- 
 membered that every man has a right to fix his own 
 price on his own property, and that a man's faculties are 
 his property, as much as his horse or his barrel of sugar. 
 It is the very law" of our nature to require pay for our 
 labor. No one has been invited to employ me ; and those 
 who have were told my terms at the commencement, and 
 not surprised into a large claim after the service had 
 been performed. 
 
 "At length out comes a mighty volcano, which is to 
 envelope and burn up the life of these defendants with- 
 out fire, ^ The bonds have been ante-dated for the pur- 
 pose of concealing this stupendous fraud,' said the dis- 
 trict attorney. ' Those issued only last May and June 
 are dated in 1823.' Tremendous ! Only think of the 
 bonds being ante-dated ! But, gentlemen of the jury, 
 allow" me to remind you of the facility with which I put 
 all his squadrons to flight in relation to the matter, by 
 desiring the witness to turn over a few pages of the Life 
 and Fire books, and tell you the history of those bonds 
 thus ante-dated, when it turned out that the Life and 
 Fire had issued to Jacob Barker, as agent for William 
 Kenner & Co., of New" Orleans, on the 5th September, 
 
LIFE OF JACOB BARKER. 139 
 
 1823, a bond for $2000, payable in tliree years. That 
 Jacob Barker held it until May, 1826, when he returned 
 it to the office and took in exchange for it two bonds, 
 each for $1000, bearing equal date with the original 
 bond, and payable on the same day that it became pay- 
 able ; and it is hardly necessary for pie to tell you that 
 nothing is more common in the mercantile world than 
 when a note is found too large, to have it divided, pre- 
 serving the original date and time ; and would it be 
 fraudulent to return a hundred-dollar bank-note to the 
 bank that had issued it, and take in lieu thereof two 
 notes of fifty dollars each, or one hundred one-dollar 
 notes, because these new notes bore the same date with 
 the one-hundred-dollar bill given in exchange for them ? 
 
 " Gentlemen, my losses in foreign business, together 
 with the money due from the Government, were the 
 causes of the misfortunes of the Exchange Bank in 
 1819 : since that time I have labored, and that too with 
 great success, for the payment of the debts of that bank 
 and of the Washington and Warren Bank. The debts 
 of the latter were all paid, and its credit re-established, 
 more than two years ago, and the Exchange Bank notes 
 are nearly all redeemed from my new earnings. 
 
 ^' Gentlemen, if I am to be convicted, I pray that it 
 may be for something you understand ; that you do not 
 allow a mystery so wrought up to induce you to infer 
 fraud on account of such mystery. I have been deno- 
 minated a mysterious man, — the most mysterious man 
 of the age. It has been so published in the daily papers. 
 Prcy'udicial as such a character may be, 'there is to be 
 found in it food, delicious food, for the vanity of man, for 
 we all delight to be thought to possess great intellectual 
 powers, and so great a share of vanity has fallen to my 
 
140 LIFE OF JACOB BARKER. 
 
 lot that I would plead gnilty to tliat charge if I were to be 
 the only suiFerer. But, as it may operate against the 
 other defendants as well as all those connected with me 
 by blood or feeling, I cannot consent to feast alone on 
 that delicate morsel, knowing as I do that no one else 
 can share with me in its delusive enjoyment. Therefore, 
 gentlemen, I deny, boldly deny, that there is any mys- 
 tery about me, and I put it to you to decide whether 
 every thing that has come out has not been of the most 
 frank, open, and candid character. Has there been the 
 least appearance of trick, artifice, or device in a single 
 one of the many transactions which have come under 
 your notice on this trial ? Have I not told every witness 
 to tell all he knew, as well as all he believed? Has not 
 my conduct throughout sustained the first declaration I 
 made ? — ' Let everything come out ; if I have been guilty, 
 let the world know it.' History tells us that the Qua- 
 kers were once put to death in our own country, on ac- 
 count of the mysteries of their religion, and that in all 
 ages religious sects of every denomination have, in turn, 
 fallen victims to the dominant church on account of the 
 mysteries of their religion. Every thing not understood 
 by short-sighted men was considered as evidence of an 
 evil spirit, and made the pretext for putting the inno- 
 cent and the unofi"ending believer to death, for the 
 single reason that he attended to the manifestations of 
 truth in his own mind. 
 
 "Now, I trust in God that those days of darkness 
 and delusion, those days of murder and rapine, have 
 passed away, and that they are not to be brought back 
 in this enlightened age, and under our happy form of 
 government, when it is our pride and boast that the 
 human mind has been emancipated, and that reason and 
 
LIFE OF JACOB BARKER. 141 
 
 justice reign triumphantly, as well in our courts of law 
 and justice as in our legislative halls and sanctuaries of 
 religion. Again, I repeat, if I am to be convicted, let 
 it be for something you understand, and not because the 
 district attorney may so envelope in mystery and dark- 
 ness any particular transaction that you cannot clearly 
 see its purity. 
 
 " My negotiations have been with Mr. Eckford. I 
 am not conscious of meriting the censure of any one, 
 but, on the contrary, consider myself entitled to the 
 praise of 'well done, good and faithful servant.' Be 
 that as it may, I hope that Mr. Eckford will not be 
 made to suJBfer for any errors of mine, if errors there 
 have been. If so, it will be more painful to me than all 
 I have suffered or may suffer. 
 
 " And here I beg leave to ask. Who is Henry Eckford ? 
 Is he a needy adventurer? Is he a stock-speculator 
 and a schemer ? No, gentlemen : he is a man who, by 
 his mechanical skill, industry, and enterprise, has 
 raised the character of our country. Within the last 
 year he has built, fitted out, and equipped four sixty- 
 four-gun ships. He has been the means of bringing 
 nearly two millions of dollars into this country ; not, 
 gentlemen of the jury, the fruits of stock-jobbing and 
 other speculations, but of honest industry. It has been 
 earned by the hewer and feller of timber, the ship-car- 
 penter, the smith, and artisans in general. This money 
 is the fruit of such enterprise as no mechanic has ever 
 before displayed. In his case you have heard of no 
 exorbitant commissions, no disputes with agents, no 
 quarrels with foreign Governments, no revising to settle 
 differences, nor any compromise by which one ship was 
 to be sacrificed for the other. Who, I ask again, is 
 
142 LIFE OF JACOB BARKER. 
 
 Henry Eckford ? He is tlie same who, during the late 
 war, when the storm howled along the frontier, built 
 our fleets, — those fleets which led to victory and covered 
 the nation with glory. This is the man, gentlemen, 
 whom it is sought to immolate. And who, gentlemen 
 of the jury, may I be allowed to ask, is Jacob Barker ? 
 He is the man who, — and it is a matter of historic 
 record, — during the darkest periods of that war, fur- 
 nished the sinews of that war. He furnished the 
 money without which those fleets could never have 
 been equipped, without which the army could not have 
 been fed or clothed, and without which even the bounty 
 to the recruits could not have been paid. It was not 
 all his own money, gentlemen ; but when the rich and 
 fearful drew close their purse-strings, Jacob Barker, by 
 the exercise of that talent for which he is here 
 arraigned, brought capitalists together, and eff'ected 
 arrangements by which five millions were cast into the 
 treasury. Such ivas Jacob Barker during that memo- 
 rable period ; such is the man who has now been 
 arraigned here by a combination of rogues, who would 
 run away by the light of the funeral pile upon which 
 they would be happy to see him consumed. 
 
 "Whether the conspiracies alleged in the bill of in- 
 dictment have taken place or not, or whether the frauds 
 have been committed or not, has nothing to do with my 
 defence, so long as I had not the least participation 
 therein. Hence it follows that the district attorney 
 must request you to acquit me without leaving your 
 seats, or he must expect you to convict me for having 
 sold fifteen l;yindred shares Eulton Bank stock for 
 account of the Life and Fire Insurance Company, and 
 accounting therefor to the satisfaction of all parties ; 
 
LIFE OF JACOB BARKER. 143 
 
 for having, as the assistant president of the Western 
 Insurance Company, advanced money on eight hundred 
 shares of Tradesmen's Bank stock, and given them 
 back in exchange for other securities, at the instance 
 of the persons for whom they were received ; for having, 
 in the most honorable manner, effected the most salutary 
 change in the direction of the Fulton Bank ; for having, 
 by the loan of all the money I could raise, endeavored 
 to save from insolvency the Life and Fire Insurance 
 Company, or for having preserved from failure the 
 Morris Canal and Banking Company, and also the 
 Fulton Bank. This I aver to be what I have done in 
 the premises, and that there is not a particle of testi- 
 mony to connect me with any of the frauds complained 
 of, nor could there with truth have been any such 
 evidence, as I had not the least connection therewith. 
 But you have seen other conspiracies on the part of 
 my accusers brought to light in the course of this 
 tedious investigation, viz. : — 
 
 "To get possession of the Morris Canal and Banking 
 Company, through the instrumentality of the $40,000 
 post note of the Phoenix Bank. 
 
 "To cheat me more than once in the appointment of 
 directors for the Fulton Bank. 
 
 " To apply the funds of the bank to the private pur- 
 poses of the two presidents. 
 
 " To induce me to loan money to a company known 
 to be insolvent. 
 
 "To palm off on me Fulton Bank stock to a ruinous 
 amount at eighty, by some of its directors and their 
 associates, after they knew of the recent^ losses of the 
 bank. 
 
 "To procure m'y conviction at every hazard, that I 
 
144 LIFE OF JACOB BAEKER. 
 
 might be disqualified from giving testimony against the 
 guilty offenders." 
 
 It was now ten o'clock, when Mr. B. informed the 
 court that he was very much exhausted, and asked an 
 adjournment. The court refused, saying his argument 
 must be closed that night. Mr. Barker replied that he 
 wished time to collect his thoughts, and would stipulate 
 not to occupy the court more than ten or fifteen minutes 
 at its opening in the morning. The court replied, 
 *'Your argument must be closed this night," wdien Mr. 
 Barker resumed, saying, — 
 
 " To David Leavitt, principally, am I to charge this 
 indictment. He has followed me like a demon ; he 
 waited at the jury-room till I was denounced ; he pro- 
 duced all these books and papers ; he has stood forth 
 and said that I defrauded the Fulton Bank, knowing 
 that there had been no fraud in my transactions, that I 
 had saved the bank from failure ; he sits at this moment 
 at the elbow of the district attorney, and whispers him 
 what question to ask ; and with a keen eye he watches 
 the progress of this case, as the mother watches the 
 unfoldings of her babe. 
 
 "This detail might be extended much further were I 
 not restricted in time ; as it is, I will not trespass 
 further on your patience." 
 
LIFE OF JACOB BARKER. 145 
 
 CHAPTER VIII. 
 
 EXTRACT FROM THE SPEECH OF BENJAMIN F. 
 BUTLER, ESQ. 
 
 Benjamin F. Butler, Esq., made a very lucid and 
 logical closing speech ; among other things, he said,- — 
 
 ^'It is known to jou, gentlemen of the jury, that I 
 was introduced into this cause, and have hitherto 
 appeared in it, as one of the counsel associated in the 
 defence of Mr. Eckford ; my learned associates will 
 render him all the aid his case requires, and with his 
 consent I have yielded to the request of Mr. Barker to 
 present his case ; you will therefore consider me as 
 addressing you exclusively in his behalf, and you will 
 consider him in thus committing his defence to a junior 
 counsel, and that counsel a stranger, as giving the 
 highest evidence he could give of his confidence in the 
 justness of his cause, and in the intelligence and impar- 
 tiality of those by whom it is to be decided. In that 
 confidence, I can truly say, I fully participate ; yet it 
 would be aftectation to deny that I enter on the duty 
 assigned me with the liveliest solicitude. Not that I 
 have found any thing in all that mass of testimony that 
 has been laid before you to shake my faith in the inno- 
 cence of my client. No, 'tis neither the evidence nor 
 the learned counsel by whom it is to be enforced that I 
 fear. I have other and more formidable antagonists. 
 Rumor, with her ten thousand tongues, and prejudice 
 and calumny, are all arrayed against my client. In- 
 
 13 
 
146 LIFE OF JACOB BARKER. 
 
 terested men, — ^men who have been disappointed in their 
 hopes of gain, brokers, bondholders, and stockholders, — 
 all, all have united in a crusade against him. It has 
 suited the purposes of certain individuals, whose names 
 and motives have been dragged to light in the course of 
 this investigation, to charge on Mr. Barker all the evils 
 of a financial nature that have recently fallen on this 
 community. By open maledictions, or insidious appeals 
 to the worst passions of our nature, by the most ex- 
 travagant tales concerning his connection with the com- 
 panies that failed, and the profits alleged to have been 
 realized therefrom, by exciting the jealousy of the sus- 
 picious and the hatred of the ignorant, they hoped to 
 bring down upon his head a storm of popular indigna- 
 tion that should desolate him in its fury and destroy 
 him forever. To a considerable extent, their efforts 
 were successful. The multitude of bondholders and 
 stockholders involved in the recent failures was more or 
 less imposed upon by the artifices I have mentioned, 
 and with them the clamor became too general. 
 
 ''Emboldened by their success without-doors, the 
 leaders of this conspiracy had the audacity to pursue, 
 even to this sanctuary of justice and within these 
 sacred walls, their intended victim. Yes, gentlemen, 
 availing themselves of occasions when the honest public 
 was excluded, and when this hall was filled with the 
 prosecutors, witnesses, and others equally interested in 
 the conviction' of the defendants, and governed by the 
 same spirit that inflames the ferocious savage when he 
 utters the yell of triumph in the ears of a foe prostrate 
 at his feet or bound to a blazing tree, they dared, 
 once and again, in a manner the most reprehensible, to 
 interrupt the solemnities of this trial, and to exult in 
 
LIFE OF JACOB BARKER. 147 
 
 the anticipated martyrdom of mj devoted client, in tlie 
 vain hope that you could be overawed by such nefarious 
 attempts. 
 
 '* Gentlemen, I know that you cannot be influenced 
 by such exhibitions ; but, at the same time, I frankly 
 confess to you that I am not without my fears that the 
 prejudices and passions that rage without may find their 
 way into this jury-box. When I say this, let no one of 
 you understand me as distrusting his judgment or his 
 integrity. I have the most unlimited confidence in 
 both. I perceive you to be intelligent, and, though a 
 stranger to all of you, I believe you to be upright. I 
 know you will make a great efi'ort to rise above all 
 extraneous considerations ; and such is the trust I 
 repose in your love of justice, that I am persuaded, if 
 you should once suspect that your minds were about to 
 become the prey of prejudice, you would expel the 
 demon from your bosoms, and fly, as it were with 
 horror, from your very selves. But, alas! you were 
 created men, before you were appointed to be jurors, 
 and he knows but little of the human heart who does 
 not know that prejudices the most unfounded and per- 
 nicious may be entertained in ignorance, and even 
 cherished as virtues. You will, therefore, bear with 
 me, my friends, when I tell you that I have but one 
 lingering apprehension for the safety of my client, and 
 that is, lest you should unconsciously imbibe the poison 
 that has been so widely diflused; and you will join me 
 in supplicating the Father of Lights that he may 
 guide your deliberations, and arm you against error, 
 and save you from prejudice ; so that in discharging 
 the awful trust which in his providence has devolved 
 on you, you may imitate — though at infinite distance 
 
148 LIFE OF JACOB BAEKER. 
 
 and with miicli imperfection — ^his own unerring and 
 impartial justice. 
 
 "In the coui'se of my remarks I shall endeavor to 
 guard you against some of those considerations which 
 are most likely to mislead ; but there is one against 
 which I feel it my duty to warn you at the very outset. 
 An idea has gone abroad that stupendous frauds have 
 been committed in the recent failures of your moneyed 
 institutions, and that public justice demands the punish- 
 ment of some one. 
 
 "But, however this may be, it is obvious that these 
 vague impressions that wrong has been committed, and 
 this thirst for vengeance, is calculated to operate in a 
 thousand forms, to the great injury of whosoever may 
 chance to be accused as the author of that wrong ; and 
 in no way more effectually than by inclining judges 
 and jiu-ors to regard the prosecution in a favorable 
 light. 
 
 "Attempts have already been made, and they will 
 doubtless be repeated, to impress it on your minds that 
 this prosecution is entitled to your favor ; and, lest you 
 should chance to have imbibed such an impression, I 
 beg to direct your attention to the motives in which it 
 originated, to the form in which it has been preferred, 
 and to the mode in vfhich the public prosecutor has 
 attempted to sustain it. A brief consideration of these 
 three topics will enable you to determine how much 
 encouragement it should receive at the hands of an 
 honest jury. 
 
 "1. The motives in which it originated. To discover 
 these, we should know the names of the persons who 
 made the accusation to the grand jury. In that 
 country from which we derived our jurisprudence, no 
 
LIFE OF JACOB BARKER. 149 
 
 man can be put on trial without a copy of the indict- 
 ment and a list of the witnesses by whose oath it was 
 obtained. This salutary practice is in this State too 
 generally neglected. It has not been adopted in the 
 present case. We must, therefore, select the instigators 
 of this proceeding from among the prosecutor's wit- 
 nesses. Of the witnesses called by the district attorney, 
 many — such, for example, as Mr. Catlin, Mr. Nevins, 
 Mr. Fleming, and others — had no connection with the 
 institutions alleged to have been defrauded, but were pro- 
 duced for the mere purpose of proving independent facts, 
 nowise suspicious in themselves, and never till now the 
 subject of complaint. They were not the prosecutors. 
 Others were connected with the defendants, or some of 
 them, by the ties of friendship or of business. They 
 also were not the prosecutors. Now, when you select 
 from the witnesses on the part of the prosecution those 
 who belong to the two classes I have named, all that 
 remain have either strong personal enmities towards 
 some or all of the defendants, or are deeply interested 
 in the institutions alleged to have been defrauded, or in 
 the employment of those institutions, or have lost money 
 by those that have, failed. Let us run over the list: 
 Mr. Crane, secretary of the Mechanics' Company; 
 Mr. McCulloch, the worthy commissioner of the Morris 
 Canal Bank, who would convict his brother commis- 
 sioners as conspirators for doing that which his own 
 conspiracy rendered necessary ; Mr. Gilchrist, cashier 
 of the Morris Bank, and several of its directors ; Mr. 
 Cheesebrough, who has long had his difficulties with 
 two of the defendants, Leavitt, the president of the 
 Fulton Bank, Sprague, his clerk ; St. John, the youth 
 who was sent here by Clarkson and Reed ; Clarkson and 
 
 13* 
 
150 LIFE OF JACOB BAEKER. 
 
 Keed themselves ; Falls, the cashier of the Tradesmen's 
 Bank ; the pugnacious Mr. Dyatt, and the whole corps 
 of bondholders and stockholders. Some or all of 
 these, it is reasonable to infer, are the real complainants. 
 Without their oaths the prosecution could not have 
 breathed an hour. You see, then, that the substratum 
 of this prosecution has been laid by the testimony of 
 witnesses under the double bias of personal animosity 
 and private interest. But you will be told that all 
 criminal proceedings are to be commenced by the com- 
 plaint, and generally to be supported by the oath, of 
 the party injured. This is true ; and when the prosecu- 
 tion springs from a real desire to advance the cause of 
 justice, the public good requires that you should act, 
 though even then with caution, on the evidence of those 
 whose propeHy or whose persons have been the subject 
 of depredations. But the present is no such case. It 
 is the offspring of feelings, motives, and designs alto- 
 gether personal. Many of the witnesses have shown 
 this by their testimony or their conduct whilst under 
 examination. As to McCulloch, Leavitt, Sprague, Dyatt, 
 and several others, this was too palpable to escape your 
 observation. As to the bondholders, one and all, I risk 
 nothing in asking you whether there is one of them who, 
 if he could have obtained his money, though at the 
 expense of every other creditor, would not gladly have 
 taken it and remained quietly at home, without dreaming 
 of conspiracies or appealing to public justice. 
 
 "2. I request your attention to the form which has 
 been given to this prosecution. Unless I am deceived, 
 you will find it such as to demand your unqualified 
 condemnation. To enable you to understand it, I must 
 detail the facts. On the 12th of August last, the grand 
 
LIFE OF JACOB BARKER. 151 
 
 jury presented an indictment against Messrs. Eckford, 
 Swift, Rathbone, and Vermilyea, for conspiring to 
 defraud the Morris Canal and Fulton Banks. That in- 
 dictment was founded on the fraud alleged to have been 
 committed in the exchange of stocks, one of the prin- 
 cipal subjects of the present investigation. The de- 
 fendants appeared, pleaded, and demanded an imme- 
 diate trial. A trial was promised, but was deferred by 
 the court from want of time and the pressure of busi- 
 ness. On the 15th of the same month an indictment 
 was found against the four persons just named, together 
 with Messrs. Spencer and Brown and the cashier of the 
 Morris Bank, Mr. Talman, for a conspiracy to defraud 
 the Morris Canal Bank and the Fulton Bank. This 
 indictment was founded on the same transactions as the 
 former. On the same day, or the next, an indictment 
 was found against John Franklin and Messrs. Eckford 
 and Vermilyea, for a conspiracy to defraud the Me- 
 chanics' Insurance Company, embracing the same sub- 
 ject-matter, so far as that institution is concerned, that 
 is now the subject of inquiry. A fourth indictment 
 was presented against Messrs. Spencer and Brown, 
 together with Leggett and Oakley, clerks in the Fulton 
 Bank, for a conspiracy to defraud that institution by 
 those overdratvings of which you have heard so much 
 in the course of the present trial. And by the same 
 grand jury a fifth indictment was preferred against Mr. 
 Davis, in conjunction with Messrs. Reed, Grouverneur, 
 and Cox, for a conspiracy to defraud the Tradesmen's 
 Bank, in the various transactions which have been 
 given in evidence before you. All these indictments 
 are yet pending and untried. 
 
 " Thus you perceive, gentlemen of the jury, that 
 
152 LIFE OP JACOB BARKER. 
 
 every branch of the present accusation had been made 
 the subject of separate prosecutions before the present 
 indictment was preferred, and that all the parties now 
 on trial, with a single exception, had been charged in 
 one or other of the proceedings I have mentioned. 
 That exception, however, did not spring from anj favor 
 on the part of the public prosecutor : it was my client, 
 Jacob Barker. Another grand jury was summoned; 
 and such was the increase of prejudice, or of testimony, 
 that he who in August was untouched by a single accu- 
 sation was indicted in September as a party to all the 
 conspiracies charged in five several indictments ! But 
 mark the course of the public prosecutor. Instead of 
 finding five new indictments, and including in each the 
 name of Jacob Barker, one general indictment is found 
 against him and his seven co-defendants, comprehending 
 not only all the conspiracies embraced in the former 
 prosecutions, but adding to the institutions alleged to 
 have been defrauded the 'Life and Fire, and the stock- 
 holders thereof.' Under this last indictment the de- 
 fendants have been required to answer in the gross for 
 all the transactions they have had for the last three 
 years with either of the institutions enumerated ; and 
 that, too, whether jointly, singly, or in pairs, with each 
 other, or with parties not on trial. 
 
 "This form of prosecution is not only extremely in- 
 convenient, but, in my judgment, was adopted without 
 necessity. The defendants, with the exception of Mr. 
 Barker, could have been tried under the former indict- 
 ments. If there was ground to charge him, new bills 
 could have been preferredj and his name inserted in 
 each. If there was ground to charge the whole eight, 
 their names could have been inserted in each bill. In 
 
LIFE OF JACOB BARKER. 153 
 
 either case, their trials would have been confined to 
 acts afi"ecting some particular institution ; each trial 
 would have been kept within moderate limits as to time : 
 and justice might have been administered impartially, 
 understandingly, and without embarrassment or doubt. 
 The course pursued on this occasion was not only un- 
 necessary, but unprecedented. Let the counsel for the 
 prosecution produce its parallel if they can. Let them 
 ransack our judicial records from the earliest period of 
 the common law to the present hour, and they will find 
 none. No, not even in the days of Jeffreys, nor among 
 the L^sh state prosecutions. 
 
 ''You may think this but idle declamation. Advert 
 then, I beseech you, to the evils that have flowed from 
 the blending together of so many subjects of accusation. 
 It has protracted this trial to a length hitherto unparal- 
 leled in this State. It has plunged us into an ocean of 
 evidence, through which none but a skilful pilot can 
 steer in safety. No human memory, unaided by notes, 
 can retain the details of the testimony you have heard. 
 Your situation would not permit you to take notes, and 
 you are therefore obliged to rely on memory or the 
 statements of others. With all the helps you may 
 receive, with all your circumspection, there is great 
 danger that you may err. It is the prerogative of 
 Heaven to review the complicated acts of a busy life, 
 and to determine of the whole whether it demands 
 punishment or reward. Man can only judge of separate 
 transactions ; and the rule that forbids multifariousness 
 in judicial proceedings is not only intended to promote 
 the attainment of truth, but is rendered indispensable 
 by the imperfection of our nature. This mode of prose- 
 cution has also subjected you to a severe trial. The 
 
154 LIFE OF JACOB BARKER. 
 
 interests of tlie defendants being, in most cases, really 
 distinct, and sometimes in opposition, they were obliged 
 to employ separate counsel, who have worn out your 
 patience, even in the necessary discharge of their duties. 
 Nor is this all : Mr. Barker has omitted to call more 
 than thirty witnesses, who were summoned but not 
 examined, lest he should prolong your imprisonment 
 and render insupportable the privations you have 
 suffered. The defendants have also been deprived of 
 their constitutional right to call each other as witnesses 
 in regard to many of those transactions which are now 
 the subjects of accusation. But two of the defendants 
 — Messrs. Eckford and Vermilyea — are implicated in 
 the fraud alleged to have been practised on the Me- 
 chanics' Company. Brown and Spencer are the only 
 persons now on trial who are implicated in the over- 
 drawings of the Fulton Bank ; but then there is not a 
 particle of evidence to connect them with the Morris 
 Canal, the Tradesmen's Bank, the Mechanics' Com- 
 pany, or the Life and Fire. As to all of those subjects, 
 they may have known facts of vital importance to their 
 co-defendants. If the transactions connected with the 
 several institutions alleged to have been defrauded had 
 been separately examined, as they ought to have been, 
 those of the defendants who were not affected by the 
 testimony would have been acquitted at once, and might 
 have been called as witnesses for the others. By linking 
 them together in the present indictment, and including 
 in that indictment so many distinct transactions, this 
 has been prevented ; because there is no one of the de- 
 fendants who is not affected by some portion of the 
 evidence. Once more : by coupling together these eight 
 defendants, they are brought to trial for the acts they 
 
LIFE OF JACOB BARKER. 155 
 
 have really committed, under such circumstances as 
 necessarily to be prejudiced by the acts of others. Mr. 
 Barker had no connection whatever with the Mechanics' 
 Company nor with the overdrawings of the Fulton 
 Bank; and yet he is to answer for his own sins in con- 
 junction with the sins of others. We read in classic 
 fable of a tyrant who bound together the living and the 
 dead and buried both in one common grave. This prose- 
 cution proceeds on the same principle, but its cruelty 
 is more refined. The crime of the despot was not 
 cloaked under the pretence that both were dead ; but, 
 when your verdict shall have bound together the guilty 
 and the innocent, the record will make you say, and say 
 upon your oaths, that each was guilty of defrauding all 
 the parties, political and natural, named in the indict- 
 ment. Yes ! if you convict my client, the record will 
 make you say that he conspired to defraud the Me- 
 chanics' Insurance Company, when you know in your 
 consciences that, in that respect at least, this indict- 
 ment is untrue. 
 
 "Thus, gentlemen, you perceive that I spoke not 
 lightly when I complained of the form which had been 
 given to this prosecution. Why these parties were put 
 upon trial at the same time, for so many distinct acts, 
 it is not for me to say. Was it done to prevent them 
 from calling each other as witnesses and explaining 
 what is now said to be inexplicable ? I hope there was 
 no such motive. Was it done in the belief that by con- 
 necting together a thousand distinct transactions of 
 various hue, some innocent and some doubtful, the good, 
 the bad, and the indifferent, — was it hoped that by blend- 
 ing all in one undistinguishable mass you might be 
 induced to say of the whole lump, it is had^ and fit only 
 
156 LIFE OF JACOB BARKER. 
 
 to be condemned? Was that the object? Or was it 
 hoped that the defendants, goaded on by their desire to 
 protect themselves, or jostling amid their conflicting 
 interests, might mutually contribute to the ruin of each 
 other? Was this the charitable motive? 
 
 "3. I pass to the third topic I proposed to discuss, — 
 the manner in which this prosecution has been attempted 
 to be sustained. I mean not in this place to enter into 
 details. I only intend to call your attention to some 
 of the prominent features of this trial, — features of 
 strong mark, which give character to the cause. And, 
 first of all, I remind you of the females, some of them 
 clad in the habiliments of woe, that were brought here 
 to tell you of their losses as bondholders or stockholders 
 of the Life and Fire. Why were these respectable 
 persons dragged from their firesides, their domestic 
 avocations, their children and their friends, and kept in 
 this hall from day to day, till, in the order of the proofs, 
 it suited the convenience of the public prosecutor to call 
 them to that stand and to receive from their lips the 
 stoi^ of their sufferings ? Shall I be told there was any 
 necessity for this? There is no man who will dare to 
 utter such a declaration. Why, then, was it done ? There 
 could have been but one motive. It was to enlist 
 against the defendants those sympathies of our nature — 
 the best and purest that have survived the fall — which 
 flow out spontaneously when we see woman in distress; 
 which prompt us to fly to her relief, and, without inquir- 
 ing how or why, to ask but ivlio has done it, and then to 
 avenge the wrong. Have we not a right to complain 
 of this as cruel? Was it not enough that the defend- 
 ants had been charged with guilt and pursued by public 
 prejudice even to this last refuge of the oppressed? 
 
LIFE OF JACOB BARKER. 157 
 
 Was it riglit that mothers should be made to teach their 
 children the story of that guilt, ere it was established 
 by the verdict of an honest jury, or that such a ver- 
 dict should be sought for, by exciting the sympathies 
 and rousing the indignation of our judges ? This is not 
 all. To sustain this prosecution, the friends and confi- 
 dants of the accused have been called upon to testify, in 
 the hope that, by violating the confidence reposed in 
 them, they might contribute to the ruin of their friends. 
 Fortunately for the defendants, they knew nothing to 
 their prejudice, and the eflbrt was unavailing. But 
 what are we to think of the cause that requires such a 
 support? Confidence is the golden cord that binds 
 society together. Destroy it, and man becomes a hermit, 
 and the world a solitude. Never should a fibre be severed 
 but from imperious necessity. This case presented no 
 such necessity. Or, if it did, as to Mr. Halleck and 
 some others, what shall we say of that rude invasion 
 of the domestic hearth which ■ dragged to this bar the 
 orphan niece of one of the defendants, — which called 
 on her to reveal the secrets of the family in which she 
 found an asylum wdien both her parents were hurried 
 to the grave? Is there any thing in all those accumu- 
 lated charges which are heaped on the defendants, I do 
 not ask to justify, but even to excuse, this attempt to 
 extort, from the lips of one so circumstanced, evidence 
 against her friend and benefactor, her more than father ? 
 " Gentlemen, when I witness such an example of 
 the .power of prejudice, when I see that even the 
 greatest minds are fated to bear its yoke, I could weep 
 over the frailty of man's nature. And I assure the 
 public prosecutor that w^hat I have said on this point 
 has been said in sorrow and not in anger. But I tell 
 
 14 
 
158 LIFE OF JACOB BARKER. 
 
 him to liis face, and in the presence of this great 
 audience, that if he should succeed (which may Heaven 
 forbid !) in sustaining this prosecution, he will have done 
 to the cause of justice, and to this community, an injury 
 for which not all the labors of his past life, useful as 
 they have been, nor all the public services he may here- 
 after render, can furnish an atonement ; for he will have 
 succeeded . in establishing a precedent which, in times 
 of popular excitement and in the hands of partial 
 judges, may be wrested to purposes the most fatal to 
 private rights and public liberty, — which may involve 
 not eight, but eighty, in one sweeping charge, and offer 
 up at once whole hecatombs of victims. 
 
 "I will not detain you by entering into an exposition 
 of the law of conspiracy. What does and what does not 
 amount to conspiracy will be the subject of discussion 
 on the part of the other counsel, and will be faithfully 
 explained to you by the court ; but there are one or 
 two general observations touching the law of this case 
 that I cannot omit. 
 
 "I refrain from entering into the discussion, because 
 Mr. Barker has enjoined me to manage my argument in 
 the same liberal and fearless spirit in which he con- 
 ducted his defence ; and, above all things, he has com- 
 manded me not to rest his cause on any technical 
 ground. 
 
 ''This injunction, I can assure him, I mean faithfully 
 to obey ; but as a sworn defender of the law, as a free- 
 man and a lover of my country, I cannot suffer a prin- 
 ciple so reasonable in itself, so necessary to the safety 
 of the citizens, so indispensable to the due administra- 
 tion of justice, as that involved in this objection, to be 
 trampled down in any cause in which I am concerned, 
 
LIFE OF JACOB BARKER. 159 
 
 without raising in its behalf the voice of warning and 
 remonstrance. And I beg to assure mj client, and you 
 also, gentlemen of the jury, that this is no technical 
 objection. It stands on grounds of right reason and 
 eternal justice. That no man shall be put on trial for 
 one offence and convicted of another, — that he shall not 
 be held to answer for a crime against which he is not 
 admonished to defend himself; these are among the most 
 obvious principles of that law which has been written on 
 the heart of man by the hand of his Creator. They 
 are, therefore, to be found in the penal code of every 
 State that pretends to a rational jurisprudence. They 
 are among the chief ornaments of our boasted common 
 law, and, with the invaluable right of a trial by one's 
 peers, create the difference between a trial in New York 
 and one at Madrid or Algiers. Heaven grant that 
 neither you, nor I, nor our remotest posterity may 
 outlive their application in this favored land of liberty 
 and law ! 
 
 ''But I perceive that my client is impatient, whilst I 
 thus linger at the threshold. He likes not these dis- 
 tant approaches. He would have me attack the enemy in 
 his strongholds, and would risk the issue on an open 
 contest. I go, then, to the evidence in the cause, and shall 
 examine in detail all that relates to Mr. Barker. And 
 if He who is the author of reason shall only enable me 
 to express with clearness the conceptions I have formed 
 of this evidence, I hope to satisfy you that not a fact 
 has been proved which can warrant you in believing that 
 Mr. Barker ever intended, either separately or in con- 
 junction with others, to defraud any one of the parties 
 named in the indictment. In doing this I am aware that 
 I shall trespass largely on your patience. But I cannot 
 
160 LIFE OF JACOB BARKEH. 
 
 help it. My client lias friends -vvho love him, not only in 
 every part of tlie Union, but in every quarter of the 
 globe. Wherever commerce has her patrons, those are 
 to be found who take an interest in his welfare and who 
 wait with breathless solicitude the issue of this trial. 
 They shall know that, if condemned, he was not con- 
 demned unheard. If acquitted, your vindication and 
 his shall accompany your verdict. 
 
 " To reduce the mass of evidence that has been 
 offered to a manageable shape, I shall take up the corpo- 
 rations and individuals named in the indictment in the 
 order in whfch they are enumerated. I shall apply to 
 each, as I proceed, all the evidence that touches Mr. 
 Barker, but shall not comment on that which relates to 
 the other defendants. 
 
 '■^ I. The 3IecJianics' Insurance Company. — The facts 
 relied on to show a conspiracy to defraud this company 
 relate exclusively to John Franklin and Messrs. Eck- 
 ford and Vermilyea. I will not enter into the discus- 
 sion of those transactions, for Mr. Barker had no con- 
 nection with either. He was never a director or stock- 
 holder of the company ; he has had no dealings with it. 
 After the consummation of the alleged frauds, and after 
 the failure of the Life and Fire, it is in proof that the 
 Life and Fire handed over to him, among other claims, 
 one against the Mechanics' Company, which is now in 
 suit. If it is a just claim, they ought to pay, and the 
 court will see that they pay to the proper party. If it 
 is not a just claim, they will be protected against it, and 
 indemnified for the expenses of their defence. Perhaps 
 I ought not to have detained you by alluding to a matter 
 which evidently has nothing to do with this cause. But, 
 as every part of Mr. Barker's conduct has been exposed 
 
LIFE OF JACOB BARKER. 161 
 
 to misconstruction, I do not know what may be said of 
 this, and I can suffer nothing to pass unnoticed. 
 
 '^11. The Morris Canal and Banking Company. — It 
 is said that this institution was defrauded — 
 
 "1. In the apportionment of the stock by the com- 
 missioners. 
 
 ''2. In the withdrawing of the capital paid in by the 
 discounting of stock, notes, &c. 
 
 ''3. In the paying out of $15,000 for procuring the 
 charter. 
 
 "4. In the issuing of the certificates for 2500 shares 
 of stock transferred to the Fulton Bank as full stock, 
 which certificates are said to have been false. 
 
 "5. In the loan of |10,000 to the Dutchess Com- 
 pany. 
 
 "I waive all discussion as to the four first topics; for 
 there is not a particle of proof to connect Mr. Barker 
 with either of them. And, in addition to this absence 
 of proof against him, there is positive testimony that he 
 was neither an applicant for the bank, nor a commis- 
 sioner, nor a subscriber, real or fictitious, nor a stock- 
 holder, director, or committee-man. Till the affair of 
 the $10,000 loaned to the Dutchess County Insurance 
 Company, his name was not mentioned by any of the 
 witnesses. This was put forth by the district attorney 
 as a fraudulent transaction, and, I take it for granted, 
 will again form a topic of crimination. Let us see what 
 it amounts to. It is admitted that the money was re- 
 paid, but the charge is that it was procured by Mr. 
 Barker without security, through the agency of Yer- 
 milyea, and remained some time without interest. All 
 the evidence before you in regard to this transaction is 
 the memorandum of Mr. Talman, the former cashier, 
 
 14* 
 
162 LIFE OF JACOB BAEKER. 
 
 and the testimony of Newton St. John, Mr. Gilchrist, 
 and Mr. Halleck. The memorandum of Talman simply 
 states that $10,000 had been lent to Jacob Barker by 
 T. Yermilyea,— $5000 on the 29th of April, and $5000 
 on the 11th of May. This memorandum, it may be 
 proper to state, is not evidence against Mr. Barker, 
 Young St. John says that Yermilyea directed the 
 $10,000 to be sent to Mr. Barker, and that he (St. 
 John) took the money, or a part of it, to the ojffice of 
 the Dutchess Company ; that he there saw Mr. Barker, 
 who pointed out Mr. Halleck, the secretary of the 
 Dutchess, as the person to receive it, and that he paid 
 it to that gentleman. He further testified that he never 
 saw Mr. Barker in the Morris Canal Bank; and that he 
 does not know that Mr. Barker had any thing to do with 
 the money, except from the statements of others and 
 from what passed in the ofiice of the Dutchess. He 
 added that the money was returned about the 20th of 
 July, principally in the bills of the Morris Canal Bank ; 
 and that was all the young gentleman knew upon the 
 subject. Mr. Gilchrist, the present cashier, had no 
 knowledge upon the subject, except that the money had 
 been repaid. Mr. Halleck told you that the Dutchess 
 County Insurance Company, some two or three months 
 before the 20th of July, received $10,000 in Morris 
 Canal bills on loan from Mr. Yermilyea ; but whether 
 he brought them in person or sent part by a boy he did 
 not recollect ; that on or about the 20th of July, Mr. 
 Yermilyea, accompanied by Mr. Talman, came to the 
 office of the Dutchess, and requested that the money 
 might be repaid to the Morris Canal Bank, and that he 
 thereupon paid over the amount, chiefly in bills of the 
 Morris Bank, to Mr. Talman, in the presence of Yermil- 
 
LIFE OF JACOB BARKER. 163 
 
 yea. He added that no application had previously 
 been made, either by Mr. Vermilyea or the bank, for 
 the money ; and that Mr. Barker had no interest in the 
 loan except as a stockholder and officer of the Dutchess. 
 Thus you perceive that there is no evidence to impeach 
 the fairness of this transaction. Whether security was 
 given by Mr. Vermilyea to the bank, or by the Dutchess 
 Company to Vermilyea, does not appear. Nor is it 
 material. The Dutchess Company was always able to 
 repay it at a moment's warning. It was promptly re- 
 turned on the first call ; and as to the trifling amount of 
 interest, about which so much clamor has been made, if 
 any interest was justly payable to the bank by the 
 Dutchess, it can be deducted from the $5000 now owing 
 to that company. 
 
 "I have been thus minute in stating the testimony 
 concerning this transaction, because, strange to tell, it 
 was much insisted on by the district attorney. Neither 
 the cashier nor any of the directors complained of it in 
 their testimony : indeed, they all said they knew of no 
 fraud committed by Jacob Barker upon their bank. 
 But of what avail is their united tribute to the inno- 
 cence of my client ? The district attorney has de- 
 nounced the act as fraudulent, and young Mr. St. John 
 has told us that, in his opinion, it was disJwnorable ! 
 Who shall doubt the justice of their decision? 
 
 " This affair of the $10,000 was the only transaction 
 of Mr. Barker's that was specified by the district attor- 
 ney, in his opening speech, as a fraud on the Morris 
 Canal ; but he asserted that Mr. Barker had an intimate 
 connection with its concerns, and that many other cir- 
 cumstances would come out in evidence to show the 
 fraudulent nature of that connection. I have carefully 
 
164 LIFE OF JACOB BARKER. 
 
 examined tlie testimony, and I find but three other facts 
 to connect Mr. Barker with that company. They are, 
 first, the application for a loan made to him by Mr. 
 Bayard; second, his agency in effecting the return of 
 the 2500 shares of Morris Canal stock; and, third, the 
 loan of $5000 to the bank. 
 
 '' As to the application made by Mr. Bayard, that 
 gentleman, who was the assistant president of the bank, 
 called on Mr. Barker on the 21st of July with a hasty 
 note from Mr. Eckford, stating that the bank was in 
 distress, and begging his assistance ; that they wanted 
 $25,000; that they would offer him securities, and that 
 he (Mr. Eckford) would guarantee to the amount of 
 $10,000. This was strange evidence to support a con- 
 spiracy. But the district attorney had an object in 
 offering it. He desired to fix on Mr. Barker the charge 
 of extortion; and he proved by Mr. Bayard that the 
 former talked of taking the notes at a discount of 30 
 or 33 per cent., which the latter was unwilling to allow; 
 and thus the negotiation was, therefore, broken off. Mo- 
 tives of delicacy restrained Mr. Barker from repelling 
 this charge by calling for the names and condition of the 
 parties to the notes ; but he did it with equal effect by 
 asking Mr. Bayard whether he did not state his willing- 
 ness to furnish the $10,000 which Mr. Eckford had 
 offered to guarantee at a moment's warning and upon 
 lawful interest. You heard his answer in the afiirm- 
 ative, and you required nothing further on this point. 
 
 " The agency of Mr. Barker in the return of the 
 2500 shares is not complained of as injurious to the 
 bank. On the contrary, it is admitted on all hands that 
 if the return of this stock had not been effected the 
 bank would have been ruined. And Mr. David B. 
 
LIFE OF JACOB BARKER. 165 
 
 Ogden, a director of the Morris Canal, charged with the 
 negotiation on their part, testified that Mr. Barker had 
 conducted the negotiation with great skill, fidelity, and 
 success. Any agency, therefore, that he may have had in 
 this transaction, instead of furnishing evidence to crimi- 
 nate him, should entitle him to the thanks of the institu- 
 tion; unless, indeed, the district attorney was correct 
 in asserting, as he did in his opening speech, that the 
 stock was not returned till after the complaint to the 
 grand jury, and then only because 'they feared the 
 penalties of the law.' I cannot suffer this observation to 
 pass unanswered: it is important to notice it for the 
 purpose of enabling you to form a just estimate of the 
 character and motives of Mr. David Leavitt. It is also in 
 proof, then, that the negotiation for the return of the 2500 
 shares was not completed till the 10th day of August, when 
 it was closed at the office of Mr. David B. Ogden. It is 
 also in proof that a complaint was then pending before 
 the grand jury, which resulted in a bill, — the first of the 
 series. It is also true that Mr. Leavitt, who represented 
 the Fulton Bank, had been before the grand jury prior to 
 the closing of the negotiation; and when it became ne- 
 cessary, for the purpose of consummating the arrange- 
 ment, to deliver up the certificates of the 2500 shares, 
 Mr. Leavitt stated to Mr. Eckford that the certificates 
 were at the Fulton Bank, and left the office of Mr. 
 Ogden under the pretence that he would go to the bank 
 and obtain them. He was gone tvfo or three hours; 
 and, when reproached for the detention, he for the first 
 time informed the gentlemen that the certificates were 
 in the hands of the grand jury and could not be ob- 
 tained; and the business was, therefore, closed without 
 their delivery. Till this disclosure by Mr. Leavitt, 
 
166 LIFE OF JACOB BARKEK. 
 
 neither of the gentlemen with whom he was negotiating 
 had any reason to suspect that the matter was in the 
 hands of the grand jury. All this is in proof. But we 
 have something further. You heard David Leavitt 
 admit, on that stand, that when he left the office of Mr. 
 Ogden under the pretence that the certificates were at 
 the bank and that he was going thither to procure them, 
 — you heard him acknowledge, with his own lips, that he 
 then knew that the certificates were in the hands of the 
 grand jury, and that he intentionally concealed the fact 
 from Mr. Echford^ Mr. Barker, and Mr. Ogden. 
 
 " I make no comments on this fact. It is enough to 
 state that whilst David Leavitt w^as negotiating with 
 Henry Eckford as an honorable man, he was plotting 
 the ruin of his character and the destruction of his 
 peace ! 
 
 "But Mr. Barker claims a commission of $5000 for 
 his services in this negotiation, the payment of which 
 is to be resisted by the bank. Whether he is right or 
 wrong in demanding this commission, is really irrelevant 
 to the present inquiry. Even if his conduct in this 
 respect was fraudulent, it would be no evidence of a 
 conspiracy. In all the new law that this trial has fur- 
 nished, it still seems to be admitted that the union of 
 two or more minds is essential to a conspiracy ; and this 
 is an affair that relates exclusively to Mr. Barker. Yet 
 it is my duty to place it before you in its true light. 
 The facts are simply these. After the failure of the 
 Life and Fire Company, there was much excitement 
 among the persons interested in the Morris Canal Com- 
 pany, and among the holders of its bills, on account of 
 the 2500 shares exchanged with the Life and Fire 
 Company. David B. Ogden, Esq., one of the directors, 
 
LIFE OF JACOB BARKER. 167 
 
 had two or tliree interviews with Mr. Eckford, in which 
 he pressed the return of the stock. The latter respect- 
 fully declared that he would see the stock returned, but 
 he declined binding himself by a written engagement to 
 do so immediately. Mr. Barker was present at the last 
 interview, having, at the request of Mr. Eckford, ac- 
 companied him to Mr. Ogden's house, for the purpose of 
 explaining the effect a written guarantee would have on 
 the stock-market. The reasons he assigned were solid 
 and forcible. The Morris Canal stock had been ex- 
 changed with the Fulton Bank, and could not be libe- 
 rated without returning the 2000 shares of Fulton Bank 
 stock, or making some other arrangement with the 
 Fulton Bank. Mr. Eckford had engaged to return the 
 Fulton Bank stock on the 1st of March, 1827, but had 
 not contemplated an earlier return. It was apparent to 
 Mr. Barker that the attempt to procure, on a sudden, 
 2000 shares of Fulton Bank stock would enhance the 
 price of that stock, expose Mr. Eckford to extortion, 
 and perhaps defeat the very object in view. Mr. Ogden 
 felt the force of these objections, but so pressing were 
 the necessities of the Morris Canal that he continued 
 to urge upon Mr. Eckford the immediate return of the 
 stock. The latter, though under no obligation to do 
 this was willing to make the attempt, and, placing a just 
 confidence in the skill of Mr. Barker, appealed to him 
 as the person who should undertake the negotiation with 
 the Fulton Bank. Mr. Barker replied to this appeal 
 that he would do any thing for Mr. Eckford, but would 
 not work for the Morris Canal without pay. Mr. Ogden 
 asked what he would charge that company for his 
 services. He demanded $5000. Mr. Ogden tells you 
 that he thought the terms rather hard; but he at 
 
168 LIFE OF JACOB BARKER. 
 
 lengtli engaged, if the result was successful, to use liis 
 exertions to induce the bank to pay the stipulated fee. 
 Mr. Barker was too wise to leave the matter on this 
 footing. He therefore suggested that Mr. Ogden should 
 procure the sanction of the directors. The board was 
 accordingly called, and a resolution passed authorizing 
 Mr. Ogden to take such measures as he thought proper 
 to effect the return of the stock. After this, being 
 again urged by Mr. Ogden, Mr. Barker opened the ne- 
 gotiation with the Fulton Bank, and prosecuted it with 
 his accustomed perseverance until the desired end was 
 accomplished and the Morris Canal saved from the ruin 
 that threatened it. In the mean time, however, Mr. 
 Leavitt had informed the directors of the Morris Canal 
 of Mr. Barker's offer to relinquish his commission of 
 $5000 in favor of the Fulton Bank. As Mr. Ogden 
 had not thought it good policy, at. that stage of the busi- 
 ness, to communicate to his fellow-directors the details 
 of the arrangement with Mr. Barker, this information 
 was a surprise to the board, and laid the foundation for 
 the difference that now exists between them and Mr. 
 Barker in regard to the commissions. 
 
 "I have now given you a plain history of this trans- 
 action as it appeared in the evidence, and I should like 
 to know what there was in it that was wrong on the part 
 of Mr. Barker. Was he bound to save the Morris 
 Canal Company without compensation ? They were the 
 parties chiefly interested, and he had a right to insist on 
 a quid pro quo, before he devoted to their use his time, 
 his funds, or his talents. ^ . 
 
 " Mr. David Leavitt, however, who has a special de- 
 sire to protect the Morris Canal and every other insti- 
 tution, when he can do so to the prejudice of Mr. Barker, 
 
LIFE OF JACOB BARKER. 169 
 
 has volunteered a new objection to this charge, by 
 which Mr. Barker is not only to be deprived of his com- 
 pensation, but convicted of bad faith and perhaps of 
 fraud. He has sworn that Mr. Barker ' did not effect 
 the return of stock ; that he commenced the negotiation, 
 but flew from his agreement, in consequence of Avhich 
 he (Leavitt) requested Mr. Eckford to employ some 
 other agent, or negotiate the business himself, and that 
 thereupon he and Mr. Eckford closed the business them- 
 selves.' This statement is entirely destitute of truth. 
 Out of Mr. Leavitt's own mouth, aided by the testimony 
 of Mr. Emmet and other unimpeachable witnesses, I will 
 convict him of falsehood. It is painful to make such a 
 charge, but I shall place it past doubt or cavil. And it 
 is important to do so at this stage of the cause, for the 
 purpose of testing the accuracy and credibility of Mr. 
 Leavitt. You said then, Mr. Leavitt, that Jacob Bar- 
 ker ' did not effect the return of the stock, and that the 
 negotiation was closed without his agency.' Who opened 
 the negotiation with the Fulton Bank? Jacob Barker^ 
 by his letter of the 31st of July. Who conducted it 
 until the 9th of August, inclusive? Jacob Barker. 
 When did you tell Mr. Eckford that you would no longer 
 treat with Jacob Barker ? On the 10th of August. 
 When and where was the negotiation finally closed ? On 
 the 10th of August, at the office of- David B. Ogden. 
 Whom did you see on that day at that office with Mr. 
 Eckford ? Jacob Barker. Who waited two or three 
 hours with Mr. Eckford when you went for the certifi- 
 cates, — the same certificates which you said were at the 
 bank, when you knew them to be in the hands of the 
 grand jury ? Jacob Barker. Who, when the certificates 
 could not be produced, and you supposed that the whole 
 
 15 
 
170 LIFE OF JACOB BARKER. 
 
 negotiation must therefore be broken off, and went with 
 your counsel to Mr. Ogden's office to explain this to 
 Mr. Eckford, — who, I again ask, proposed the mode of 
 closing the arrangement without them? Jacob Barker. 
 Who delivered the five hundred shares of Fulton stock, 
 and the one hundred shares of Morris Canal stock, in 
 part execution of the arrangement? Jacob Barker. 
 What then remained to close the business ? Securities 
 were to be delivered for $50,000. Who gave you these 
 securities, Mr. Leavitt? Jacob Barker. These answers 
 are taken — mark it, gentlemen — from the testimony of 
 Mr. Leavitt himself, drawn out by Mr. Barker on his 
 cross-examination. But the efficient instrumentality of 
 Mr. Barker in closing this negotiation does not rest 
 merely on the admissions of Mr. Leavitt. All the testi- 
 mony on this point concurs in representing Mr. Barker, 
 not only as the person who commenced and managed, 
 but who closed, this difficult and important negotiation. 
 Mr. David B. Ogden swore that Mr. Barker did effect 
 the return of the stock. Mr. Emmet testified that he 
 was present as counsel for the Fulton Bank, at the close 
 of the arrangement, and that ' Jacob Barker took a very 
 active part in the business.' He also confirmed the ad- 
 mission of Mr. Leavitt, that when the lawyers were at 
 fault, (and able ones they were, too,) in consequence of the 
 non-production of the certificates, Mr. Barker, with that 
 readiness and tact of which you have seen so many 
 striking examples during this trial, suggested the expe- 
 dient that was finally adopted for closing the business 
 without them. And yet Mr. Leavitt had the temerity 
 to swear that Jacob Barker did not effect the return of 
 the stock. 
 
 "But I have not done with this gentleman. He 
 
LIFE OF JACOB BARKER. 171 
 
 stated that 'Jacob Barker flew from his agreement, 
 and that he therefore declined any further negotiation 
 with him,' &c. On his cross-examination, Mr. Barker 
 showed a resolution purporting to have been passed by 
 the directors of the Fulton Bank on the 9th of August, 
 by which they agreed to the terms proposed by Mr. 
 Barker in behalf of Mr. Eckford, provided the assent 
 of Spencer and Brown was obtained, and provided, 
 also, that the directors could be satisfied in regard to 
 another matter specified in the resolution. He then 
 asked Mr. Leavitt whether this resolution was not 
 passed by the board ; to which he answered first in the 
 affirmative, but afterwards doubtingly ; and he turned 
 to the book of minutes, which was in proof, and told us 
 there was no such resolution entered in the minutes. 
 On being pressed by Mr. Barker, he admitted that the 
 paper shown him was in the handwriting of one of the 
 directors, and had been approved of by several, and 
 that he had no doubt it had been delivered to Mr. Bar- 
 ker as a resolution of the board. He further admitted 
 that the two points reserved were adjusted to the satis- 
 faction of the board, and Mr. Barker notified thereof; 
 that Mr. Barker was willing to deliver the securities in 
 conformity to the resolution ; that he — Leavitt — then 
 called the board together ; that all the directors except 
 the president — David Leavitt — voted in favor of re- 
 ceiving the securities and delivering up the Morris 
 Canal stock agreeably to their engagement with Mr. 
 Barker ; that a motion was then made to reconsider, 
 which prevailed, and that a resolution was thereupon 
 unanimously passed rescinding the prior resolution, and 
 breaking ofi" the negotiation. Thus far Mr. Leavitt. 
 Messrs. Jonathan Lawrence and Richard M. Lawrence, 
 
172 LIFE OF JACOB BARKER. 
 
 two of the directors, both testified that the unentered 
 resolution was unanimously passed on the 9th of August ; 
 that they and other directors delivered it to Mr. Barker 
 a.s the act of the board; that they at the same time 
 informed Mr. Barker that a committee had been aj)- 
 pointed to inquire as to the two points reserved ; that 
 they did so, and that, those points being satisfactorily 
 disposed of, Mr. Barker was notified that the directors 
 would meet forthwith to consummate the arrangement 
 agreeably to the terms of the resolution; that the 
 board did accordingly meet, — when, to the astonishment 
 of themselves and their brother directors, Mr. Leavitt 
 alone voted in the negative ; whereupon, suspecting 
 that he intended to cast upon them the responsibility 
 of the measure, one of them moved a reconsideration, 
 which passed, and which was followed up by a resolu- 
 tion rejecting the whole negotiation. This, gentlemen, 
 was the 'flying from his agreement,' of which Mr. 
 Leavitt spoke, and which he falsely charged on Mr. 
 Barker. 
 
 "You see that it was David Leavitt and not Jacob 
 Barker who broke faith on that occasion ; and, I confess 
 to you, I know not which is most reprehensible, the 
 audacity of Mr. Leavitt in attempting to palm off this 
 statement upon you, or his treachery to his brother 
 directors. Look at it, gentlemen of the jury. He first 
 agrees to the unentered resolution of the 9th of August. 
 His brother directors, believing that he is to share in 
 the responsibility of the measure, take the necessary 
 steps to carry it into effect ; every thing is arranged in 
 conformity with its terms ; but, at the last moment, he 
 alone, without deigning to assign reasons for his con- 
 duct, interposes his v^to. The motive was too palpable 
 
LIFE OF JACOB BARKER. 173 
 
 to be misunderstood. Mr. Leavitt wanted a loophole 
 through which to crawl in case the stockholders should 
 complain of the arrangement as improvident ; consider- 
 able excitement about the measure having by this time 
 been created out-of-doors among the stockholders. In 
 that event, his protest would enable him to say, ' It was 
 not I who did it.' But Mr. Lawrence and the other 
 directors had too much sense and too much spirit to be 
 caught in the snare. They, therefore, broke off the 
 negotiation, and compelled Mr. Leavitt to resume it in 
 proper person. Ashamed to meet Mr. Barker, he 
 applies on the same day or the next to Mr. Eckford, 
 and, wanting some excuse for this step, he resorts to the 
 pitiful expedient of charging on Mr. Barker the failure 
 of the contemplated arrangement, and affects to be un- 
 willing to treat with him any longer. And for the pur- 
 pose, probably, of concealing the facts, the original re- 
 solution was withheld from the minutes, although a 
 copy was officially served upon Mr. Barker, which ought 
 not to have been done until it had been recorded. The 
 rest you know." 
 
 [The cause went to the jury after a most inflammatory 
 speech on the part of the district attorney, full of 
 eloquence, full of sound rules, that ought to be observed 
 in all well-regulated communities, but an entire mis- 
 statement of the little testimony which he condescended 
 to notice, and in fact had scarcely any reference to the 
 case under consideration ; but it had its effect, and the 
 jury could not agree. They were equally divided ; 
 and, having at the commencement disagreed upon some 
 cardinal points, they, although kept together nearly a 
 week, never descended into particulars so as to form an 
 opinion how far any one individual was, more than 
 
 15* - 
 
174 LIFE OF JACOB BAKKER. 
 
 another, implicated in the matters snbmitted to them. 
 They early communicated to the conrt that they could 
 not, and would not, agree, to which they adhered with 
 remarkable pertinacity, and were discharged at the end 
 of about a week.] 
 
 CHAPTER IX, 
 
 CONTEMPT OF COURT. 
 
 During the trial, Mr. Barker, in his cross-examina- 
 tion of David Leavitt, pressed him very close. The 
 district attorney interfered, and an appeal was made to 
 the court : it expressed great dissatisfaction at the re- 
 marks made by Mr. Barker to the witness, and said that 
 when the trial should terminate he must appear and 
 answer for those expressions. 
 
 Accordingly, Mr. Barker, the moment the jury were 
 dismissed, without waiting to be called to account, rose 
 and stated that he presented himself before the court, 
 in obedience to their requisition, and was amenable to 
 their directions, if they were still of the same opinion as 
 to the examination of David Leavitt. 
 
 Judge Edwards said that the circumstances had war- 
 ranted the course pursued by the court ; Mr. Leavitt 
 was on the stand, and a question was put by Mr. 
 Barker, of which the court required an explanation, as 
 its relevancy was not clearly perceived. 
 
 Mr. Barker said he intended to impeach the witness. 
 Mr. Leavitt then asked if he intended that he should 
 impeach himself. Mr. Barker answered that he had 
 
LIFE OF JACOB BARKER. 175 
 
 done so already, in his opinion ; now, to the court this 
 declaration appeared highly offensive, and a departure 
 from the respect due to the rights of the witness and to 
 the dignity of the bench. 
 
 Mr. Barker disclaimed all intention of disrespect to 
 the court; said that the recorded testimony of Leavitt 
 established that he had sworn false, knowing it to be 
 false ; that he could, by other evidence, prove it to be 
 false, and that he knew it when he gave his testimony; 
 that, if the court would permit the examination, if he 
 failed to establish these facts he would make ample 
 apology to Leavitt, but that he would not make any 
 apology to a man obnoxious to the charges he made 
 against Leavitt. 
 
 The court said, ''This examination cannot take place: 
 the question is not as to the accuracy of Mr. Leavitt 's 
 testimony. The court will adjourn, take the case into 
 consideration, and meet to-morrow morning, w^hen they 
 will decide what atonement will be required." 
 
 The court adjourned; met the next morning. The 
 judge addressed Mr. Barker respecting the grounds on 
 which the displeasure of the court had been founded, 
 saying, " The insult to Mr. Leavitt could not be passed 
 over ; the court is satisfied that you did not intend any 
 disrespect to it, and yesterday you had an opportunity 
 of making satisfactory explanations in relation to Mr. 
 Leavitt, which you refused to do. 
 
 '' On the stand you impeached him while under the pro- 
 tection of the court, and for this offence you have, as far 
 as the witness is concerned, offered no atonement, but 
 rather confirmed the accusation. For this offence the 
 judgment of the court is, that you pay a fine of one * 
 hundred dollars and stand committed until the same is 
 
176 LIFE OF JACOB BAEKEE. 
 
 paid. The smallness of the sum arises from our having 
 taken into consideration the peculiar situation in which 
 you were placed when you made the objectionable decla- 
 ration, conducting your own defence, without the aid of 
 counsel." 
 
 Mr. Barker, smiling, turned to one of his clerks, who 
 was in court, and said, "Go to Wall Street and bring 
 me a hundred dollars in those yellow bags." Doubloons 
 were immediately brought, and paid into court. 
 
 The day previous, a ship arrived from Mexico with 
 two hundred thousand dollars in Mexican doubloons, 
 being a portion of the securities pledged by Mr. Eckford 
 for moneys borrowed for the use of the Life and Fire 
 Insurance Company. 
 
 Elisha Williams, Esq., in his speech to the jury in 
 defence of Mr. Eckford, stated that "Leavitt had, by 
 his own testimony, driven the last nail in the coffin of 
 his own reputation." 
 
 CHAPTER X. 
 
 SPEECH OF ME. BAEKEE. 
 
 A SECOND trial took place, that of Eckford and Rath- 
 bone being held over by the district attorney, who then 
 said they would be tried at the proper time, and, sub- 
 sequently Maxwell, the district attorney, said to the 
 jury that Rathbone had rendered the State some ser- 
 vice, and therefore he would not be tried ; that he was 
 regenerated, but not disenthralled. 
 
 Observe, not "disenthralled:" had he been, he could 
 
LIFE OF JACOB BARKEH. 177 
 
 be examined as a witness ; and it is not perceived what 
 other reason could have induced the district attorney to 
 withhold a nolle prosequi from a man who was not to be 
 tried, who had paid the price of his emancipation in the 
 fraudulent use of those miserable scraps, those "wooden 
 daggers," in themselves as harmless as the sweepings 
 of a barber's shop, with which the district attorney 
 imagined he could create a delusion, a mystery, opera- 
 ting on the minds of the jury to Mr. Barker's prejudice. 
 
 A new jury was empanelled, composed of men many 
 of whom were hostile to Mr. Barker personally, — one of 
 their number a director in the North River Bank, 
 against whom he had preferred the charge of fraud. 
 Most of them admitted, when challenged, that they 
 were prejudiced against the defendants in relation to 
 the matters to be tried ; yet they were admitted by the 
 court as jurors in the case, although challenged and re- 
 sisted by the defendants to the utmost of their capacity. 
 
 After the evidence for the prosecution closed, Mr. 
 Barker spoke thus : — 
 
 " Gentlemen of the jury: I do not think you are such 
 a jury as was contemplated by the framers of our happy 
 Constitution, who provided that every accused citizen 
 should be tried by an impartial jury ; that men who had 
 prejudged the case, as most of you on oath admitted 
 you had done, cannot, in my opinion, be legally con- 
 sidered an impartial jury. No man on earth can be 
 expected to admit that if he finds himself, by new tes- 
 timony, in error, he is not open to conviction ; if not, 
 is it sufficient for you to say, what every man might say, 
 that he considered himself equal to the mighty task of 
 conquering his own opinions and rendering an honest 
 verdict? All we look after, when listening to testimony. 
 
178 LIFE OF JACOB BARKER. 
 
 is for such things as will support and harmonize with 
 our previously-expressed opinions ; not for an excuse 
 for the conduct of the accused, not for circumstances 
 that will induce us to give up unfavorable opinions 
 formed, and to reconcile affairs in themselves of doubtful 
 appearance with fairness, with candor, and with in- 
 tegrity. As lamentable as this is, I venture to pro- 
 nounce it a true picture of the human mind. If you 
 are in judgment of the law an impartial jury, why are 
 grand jurors and relations considered otherwise? I 
 have taken a juror's oath ; I then considered my mind, 
 as to the case to be tried, like a clean sheet of paper, 
 ready to receive an entire new impression ; but not so 
 with yours. These defendants have a twofold service 
 to perform ; they have first to remove a very deep im- 
 pression already made, before there is any room for 
 another; the two cannot exist at the same time; our 
 duty is therefore a very hard one. The law presumes 
 every individual innocent until he is proved guilty. 
 You have taken upon yourselves this trial, presuming 
 the defendants guilty: you, therefore, are at variance 
 with the law. Now, it can never have been the inten- 
 tion for the law and the jury to be at variance. I admit 
 the odds is vastly against us, and I feel thankful that I 
 have been favored with fortitude and philosophy suffi- 
 cient to come here and breast the storm, unaided by 
 counsel or friends. But I come so strongly armed that 
 I fear not ; my shield is justice, through which not one 
 of the poisoned arrows of the conspirators could pene- 
 trate ; they have all fallen harmless at my feet ; I will 
 pick them up and hurl them back on my accusers. I 
 took courage at the recollection of those memorable 
 words of our dying naval hero, Lawrence: — ^ Don't give 
 
LIFE OF JACOB BARKER. 179 
 
 up the ship,' — words that should be written in letters of 
 gold, and placed in our public squares on imperishable 
 monuments, where all coming ages may read them, and 
 improve by their courageous moral. 
 
 ["Turning to the district attorney, he requested to 
 see the wooden daggers furnished by Alderman Rath- 
 bone, describing the papers alluded to. Two or three 
 were furnished. "I want another of a deeper hue than 
 either," said Mr. Barker; when another was furnished.] 
 This is it on which I have written a memorandum, 
 which is as pure and harmless as the act of furnishing 
 it is vile. It is a contract in the handwriting of Alder- 
 man Rathbone, and dated the 10th of May. It sets 
 forth that Mr. Eckford had borrowed from Messrs. 
 Spencer and Brown two thousand shares Fulton Bank 
 stock in exchange for twenty-five hundred shares stock 
 in the Morris Canal and Banking Company; promising 
 to exchange back, at his option, at any time prior to the 
 1st of March next. This contract was signed for H. E., 
 W. P. R. ; and on its back is a memorandum in my 
 handwriting in these words : — ' As fast and in such pro- 
 portions as I deliver the Fulton Bank stock.' 
 
 "Nothing can be more harmless, more innocent, than 
 every part of the transaction, so far as described in this 
 agreement and in this memorandum ; it is a simple 
 exchange of stock, an every-day transaction. Nobody 
 has, nobody will dare to say that it was wrong ; but if 
 the stock had been fraudulently obtained, or if the cer- 
 tificates were false, all parties to the transaction who 
 knew of such frauds, or either of them, would be guilty. 
 Now, as I knew nothing of either, and had not, at the 
 time, the slightest reason to suspect that any thing was 
 wrong, there was no wrong on my part. Not so with 
 
180 LIFE OF JACOB BARKER. 
 
 Rathbone ; he was a director in both, banks ; lie pro- 
 cured the stock from the Morris Canal ; he knew 
 whether or not it had been paid for ; and if the certifi- 
 cates were false he knew it. The question that this 
 memorandum presents is, 'Was the memorandum to 
 form a part of the within contract, or is it a separate 
 contract, intended to be signed by some other person ?' 
 The district attorney read the signature to the agree- 
 ment 'Henry Eckford and William P. Rathbone,' and 
 not 'for Henry Eckford, William P. Rathbone,' as he 
 should have done, which makes the memorandum 'I,' 
 being written in the singular, appear not to belong to 
 the contract ; and, in the absence of all proof, my hand- 
 writing is to be considered as indicating a separate 
 condition on my part, connecting me with the whole 
 transaction. This error might have been to me fatal ; 
 and, if I had not had the capacity or good fortune to 
 have detected it, I must have suffered. 
 
 "I will now, gentlemen of the jury, unveil to your 
 view a nefarious attempt to sacrifice an unoffending 
 man. In the absence of Mr. Eckford, Mr. Rathbone 
 called at the office of the Mercantile Insurance Com- 
 pany, and presented to me this paper, drawn up by his 
 own hand, dated and signed before I saw it, and asked, 
 as the friend of Mr. Eckford, if its conditions were 
 clearly expressed. I suggested a slight alteration. He 
 requested me to reduce to writing the suggested altera- 
 tions. Not suspecting traps to be setting for me, I did 
 so on the back of the agreement. Mr. Rathbone took 
 the paper with him from the office, since which I have 
 not seen or heard of it until produced by the district 
 attorney, which circumstance, when taken in connection 
 with Mr. Rathbone's being let off, forces on my mind 
 
LIFE OF JACOB BARKER. 181 
 
 the irresistible conclusion that he has furnished it for 
 the purpose of fixing on me a crime of which he knew 
 that I, at least, was not guilty. If roguery there 
 be in the transaction, he is the rogue. W. P. Rath- 
 bone I mean, gentlemen, — that man sitting there [turn- 
 ing and pointing at Rathbone], — to describe the enor- 
 mity of whose conduct requires powers far beyond my 
 capacity. Another of these notable papers is a very 
 rough memorandum, in the handwriting of Brown, 
 Spencer, Rathbone, and myself, which seems to have 
 reference to a negotiation for a loan of $100,000, to 
 support the Hudson and the United States Lombard 
 Companies, which took place a few days before their 
 failure ; half of which it was expected would be fur- 
 nished by the Fulton Bank, and the other half by 
 Messrs. Eckford and Barker. There was nothing on 
 this paper to connect Mr. Eckford with this transaction, 
 except the handwriting of Mr. Rathbone, who was «^ 
 that time the partner of Mr. Eckford ; and the only 
 thing to connect Mr. Barker with it was the last memo- 
 randum on the paper, limiting the loan to $1000 per day, 
 which was surely a prudent precaution, as, if the in- 
 tended object failed, the obligation to loan ^ould cease ; 
 and, if the object was obtained, the parties would bene- 
 fit so much by their collections during the hundred 
 days that it would compensate them for their great 
 exertions to raise the $100,000. But, so far from the 
 companies meeting their payments as long as Napoleon 
 reigned, after his return from Elba they both failed 
 within one week ; and although they got more than 
 $17,000 of the money, ten thousand times has it been 
 alleged, to my prejudice, that they Avould not have 
 failed if I had performed my promise. I consider the 
 
 16 
 
182 LIFE OF JACOB BAEKER. 
 
 production of this supposed dagger, although intended 
 for my destruction, a most fortunate feature in the plot, 
 as it frees me most triumphantly from one charge ; and, 
 although the last I knew of this paper it was in the 
 hands of Mr. Brown, I am not prepared to believe that 
 he furnished it ; and nothing can be more honorable to 
 Messrs. Spencer and Brown than the part this negotia- 
 tion locates on them. The whole object, scope, and ten- 
 dency is to borrow money on the best securities they 
 held, for the»use of the companies under their manage- 
 ment. The next in order is a memorandum in my hand- 
 writing, purporting to be a contract, dated the 21st day 
 of July, written for Messrs. Brown and Spencer to 
 sign, for the settlement of the contract of $61,000 
 Fulton Bank stock, which was not agreed to or signed 
 by either. The last I knew of this paper it was in their 
 hands. It is perfectly harmless, except as another 
 evidence of the guilty conspiracy to destroy me. 
 And now we come to the fourth and last of these 
 weapons of destruction : it is a plain contract for the 
 purchase and sale of six hundred and ten shares of 
 Fulton Bank stock, dated the 21st of January, which 
 stock I held at the time. What possible use of this 
 contract the district attorney intends to make, I cannot 
 imagine, and therefore will not remark on it. The last 
 I knew of this paper it was in the hands of Mr. 
 Spencer. The parties now on trial can, and I trust 
 will, satisfactorily explain how they lost possession of 
 them. At present I am inclined to believe that Rath- 
 bone either furnished, or was instrumental in furnishing, 
 them all: perhaps he borrowed them for the purpose of 
 negotiating for the exoneration of a greater number of 
 the defendants ; but, as the district attorney could not 
 
LIFE OF JACOB BARKER. 183 
 
 have found in them sufficient for their ransom, Rathbone 
 — if my conjecture is right — converted the whole to save 
 himself. At these contrivances — as at all my enemies 
 — I boldly hurl defiance, knowing that all the contri- 
 vances in the world cannot convert innocence into guilt. 
 Now, Mr. District Attorney, if you have any more 
 papers that bear the mark of the finger of Jacob, let 
 him have them, that he may dispose of the whole pack 
 at the same time. 
 
 " Gentlemen of the jury, the district attorney took 
 particular pains, in his opening speech, to draw down 
 public indignation upon me. It was for the public, and 
 not you, as he has not followed up his most aggravated 
 allegations with a particle of proof. For instance, he 
 stated that within six months immediately preceding 
 the failure of the Life and Fire Insurance Company I 
 had, as their agent, palmed oif on the community their 
 bonds to the amount of $300,000, knowing them to be 
 bad, — thus leading every bondholder to suppose I had 
 defrauded him of their amount, — when it has been proved 
 over and over again that I never sold a bond for the 
 company, that I only sold ten thousand dollars' worth, 
 and that they belonged to the Mercantile and Western 
 Insurance Companies, and not to me or to the Life and 
 Fire Company; and that of the person to whom I sold 
 them I purchased a greater amount, and of others to a 
 vast amount. 
 
 ''Not even an off'er, on my part, to sell has been 
 proved, although he has unintentionally proved that 
 I made vast purchases." 
 
184 LIFE OF JACOB BARKER. 
 
 CHAPTER XI. 
 
 SECOND TRIAL — RESOLUTIONS OF INSURANCE COM- 
 PANIES. 
 
 The testimony was mucli the same as that adduced 
 on the first trial, on which Mr. Barker remarked very 
 much as he had then done, insisting that the public 
 prosecutor had not established either of the charges 
 made against him, and that he was as free from having 
 done any wrong as a new-born babe. The case resulted 
 unfavorably, however. 
 
 On the evening of that day, when surrounded by his 
 family and many sympathizing friends, the bell an- 
 nounced another call, when the servant brought a letter 
 from a gentleman of the first respectability, as follows : — 
 
 "Friday Evening, December 1, 7 o'clock. 
 
 " Sir : — This moment the writer learns from 'Butler's 
 Bulletin' that the jury have returned a verdict of 
 guilty in your trial, with others, for a conspiracy, &c. 
 
 "You will well know, from his signature, and from his 
 very slight acquaintance with you, that he can have 
 no interested motive in addressing these lines to you. 
 But he cannot resist the impulse to say to you and 
 your family, in the hope of in some degree assuaging 
 the feelings which this occurrence must produce, that 
 there is at least one wholly disinterested observer of 
 the recent proceedings — who has given his best atten- 
 tion to the published testimony in both trials — who be- 
 lieves that you are most unjustly given up in this case 
 
LIFE OF JACOB BARKER. 185 
 
 as a victim to public prejudice. This opinion he has 
 uniformly expressed in conversation, and will continue 
 to do so, till cause shall appear for changing his 
 opinion. 
 
 "That individual is your obedient servant, 
 
 "James Boorman. 
 
 "Jacob Barker, Esq., present." 
 
 In a 'few days thereafter, he was presented with 
 the proceedings of the directors of the insurance com- 
 panies with which he was connected, as follows : — 
 
 "Mercantile Insurance Company, New York, 
 *'12th month, 4th, 1826. 
 
 "At a meeting of the directors of this company, on 
 motion of Henry D. Sedgwick, Esq., it was this day 
 unanimously resolved that a committee be appointed to 
 investigate the books and affairs of this company, and 
 the conduct of Jacob Barker in relation thereto, as 
 assistant president ; whereupon Benjamin Marshall, 
 Francis Thompson, and Robert H. Bowne were duly 
 appointed to perform that service." 
 
 " 12th month, 6th, 1826. 
 
 "The board of directors again assembled, when the 
 aforesaid committee made the following report: — 
 
 "Report of the committee appointed by the directors 
 
 of the Mercantile Insurance Company of New York, to 
 
 examine the books and effects of the company, to 
 
 investigate the conduct of Jacob Barker in relation to 
 
 the performance of his duties as assistant president of 
 
 the said company, and whether or not any thing has 
 
 occurred to diminish the confidence reposed in him by 
 
 the directors. 
 
 16* 
 
186 LIFE OF JACOB BARKER. 
 
 ''Your committee have carefully examined the situa- 
 tion of the books and accounts of the company, as well 
 as their securities and effects, and report that the books 
 have been regularly kept, and a balance-sheet made out 
 every month for the inspection of the directors, which, 
 on a comparison with the books and securities on hand, 
 exhibits a correct and concise view of the situation of 
 the affairs of the company, and that the conduct of 
 Jacob Barker throughout has been marked with skill 
 and fidelity to the company, and in obtaining payment 
 for the debt due from the Life and Fire Insurance Com- 
 pany he did not, in the opinion of this committee, do 
 more than he was bound to do in the faithful discharge 
 of the duties of his ofl&ce. Your committee is of opinion 
 that if he had done less, he would have been wanting in 
 his duty to the stockholders of this company ; and, so 
 far as your committee have been able to discover, 
 nothing has occurred to diminish the confidence hitherto 
 reposed in said Jacob Barker. That the Life and Fire 
 bonds sold by him on the 9th and 10th of June, as 
 testified by John P. Garniss, were the property of this 
 company, sold for their account, and the money re- 
 ceived therefor on those days. 
 
 "Francis Thompson, 
 "Benjamin Marshall, 
 "Robert H. Bowne. 
 
 "On reading the report of the committee appointed 
 to inquire into the conduct of Jacob Barker, — 
 
 ''•Resolved^ unanimously, That we approve of and 
 accept the said report, and that the same be entered on 
 the book of minutes of the board of directors. 
 
LIFE OF JACOB BARKER. 187 
 
 ^^ Resolved^ unanimously^ That the secretary of this 
 company transmit a copy thereof, with these resolutions, 
 and of the resolution aj^pointing the committee, to each 
 of the stockholders of this company, signed by the pre- 
 sident and secretary of this meeting. 
 
 "William R. Thurston, 
 "Thomas L. Wells, President. 
 
 ''' Secretary fro tern,'''' 
 
 "DuTCHBss County Insurance Company, 
 "New York, December 6, 1826. 
 
 "At a meeting of the directors of this company, held 
 at the company's office this day, — 
 
 "The committee appointed at the last meeting to in- 
 quire into the conduct of Jacob Barker as an officer of 
 4;his company, and as to the correctness of the- reported 
 indebtedness of the Life and Fire Company to this com- 
 pany, made the following report : — 
 
 " The committee appointed to inquire into the conduct 
 of Jacob Barker as an officer of this company respect- 
 fully report : That after a careful examination of the 
 published testimony given in the recent trials, and 
 comparing the same with all the information we could 
 obtain, and with our knowledge of the facts^in the case, 
 we see no reason to withdraw from Jacob Barker the 
 confidence hitherto reposed in him by the directors of 
 this company ; that he appears always to have watched 
 over the interests of the stockholders with scrupulous 
 fidelity, and to have used his best exertions for their 
 interest; that the books of the company have been 
 always regularly posted, and a monthly statement uni- 
 formly made for the inspection of the directors ; and 
 
188 LIFE OF JACOB BARKER. 
 
 that the alleged indebtedness of the Life and Fire Com- 
 pany to this company, as mentioned in the report pub- 
 lished in the newspapers of Judge Edwards's charge to 
 the jury on the late trial, probably originated in mistake, 
 as no such indebtedness exists. 
 
 "William Israel, 
 ''Abraham Bell, 
 "John Clapp. 
 
 " The above report being read, — 
 
 " Resolved^ unanimously^ That the same be adopted 
 and entered on the minutes. 
 
 ^^ Resolved, unmiimously, That the confidence of the 
 directors of this company in Jacob Barker, their assist- 
 ant president, remains undiminished. 
 
 '^ Resolved, That the president and secretary be re- 
 quested to sign the proceedings of this meeting, and 
 furnish Jacob Barker with a copy thereof. 
 
 "A true copy from the minutes. 
 
 " Strong Sturges, President, 
 "F. G. Halleck, Secretary.'' 
 
 "At a meeting of the board of directors of the "West- 
 ern Insurance Company of the village of Buffalo, held 
 on the 7th of December, 1826, the annexed report was 
 presented by the committee appointed at a previous 
 meeting : 
 
 "Whereupon, it was 
 
 '•'Resolved, unanimously, That the same be accepted, 
 and that this board fully unite with the said report. 
 
 '' Resolved, unanimously. That a copy of the same, 
 and of these resolutions, signed by the president and 
 
LIFE OF JACOB BARKER. 189 
 
 assistant secretary, on behalf of this board, be presented 
 to Jacob Barker. 
 
 ^'Nathan Comstock, President, 
 ^' A true copy from the minutes. 
 
 " Thomas J. Gardner, 
 
 ^^ Assistant Secretary.'' 
 
 " The undersigned, a committee appointed at a meet- 
 ing of the directors of the Western Insurance Company 
 of the village of Buffalo, to investigate the conduct of 
 Jacob Barker, the assistant president of the said com- 
 pany, respectfully report: 
 
 "That his agency in the management of the affairs 
 of this company is marked with fidelity, and his unre- 
 mitting exertions for the interest of the institution en- 
 titles him to the unabated confidence of the stockholders, 
 and is attended with no circumstances calculated to ex- 
 cite a suspicion of that honesty which should charac- 
 terize mercantile transactions, nor should this confidence 
 be diminished in the estimation of your company by 
 the recent investigation before the Court of Oyer and 
 Terminer. 
 
 " Your committee find that eight hundred shares of the 
 stock of the Tradesmen's Bank were transferred to Seth 
 Sturtevant, a clerk of this company, on or about the 12th 
 of July last, on which a loan was made by Jacob Barker, 
 as an ofl&cer of this company, to the Life and Fire In- 
 surance Company, on or about the 14th of July, and 
 that this stock was retransferred on the conveyance of 
 a mortgage of Thomas Gibbons, received on the 17th 
 of J^ily last. 
 
 "The manner in which the books and accounts of 
 the Western Insurance Company have been kept is, on 
 
190 LIFE OF . JACOB BARKER. 
 
 examination, found to be highly satisfactory. The 
 monthly exhibit of a balance-sheet, which your com- 
 mittee find to be regularly recorded, presents a full and 
 correct view of the affairs of the company, and has 
 always been open to the inspection of every director. " 
 ^'Respectfully submitted by 
 
 ''Thomas Rich, 
 "John C. Merritt, 
 "John S. Conger, 
 "P.W. Engs." 
 
 Mr. Barker was so confident that when his case should 
 come before any tribunal beyond the influence which 
 had been exerted in the city of New York for his de- 
 struction, his freedom from offence would be mani- 
 fest, and that the illegal verdict would be instantly set 
 aside, that it never gave him a moment's uneasiness. 
 Many of his friends were very much alarmed, to all of 
 whom he said, "Be of good cheer: there is no danger.'* 
 Application was immediately made to the Hon. John 
 Wood worth. Judge of the Supreme Court, for relief, 
 whose decision will be found in the following chapter. 
 
LIFE OF JACOB BARKER. 191 
 
 CHAPTER XII. 
 
 JUDGE WOODWORTH'S OPINION. 
 
 Thomas Vermiljea and others, 
 adsm. 
 The People. 
 
 *'The defendants were convicted at a Court of Oyer 
 and Terminer, held in the city of New York, of a con- 
 spiracy to defraud certain incorporated companies and 
 individuals of their goods, chattels, and effects. Appli- 
 cation is now made for the allowance of a certiorari to 
 remove the record and proceedings into the Supreme 
 Court, for the purpose of reviewing the decision of the 
 court below, on a challenge taken to some of the jurors, 
 and also on the ground of fatal variance between the 
 proof offered at the trial and the charges contained in 
 the indictment. As to the latter, I will merely observe 
 that a certiorari removes the record only; and, as the 
 evidence produced on the trial forms no part of the re- 
 cord, the writ would be a nugatory process. In criminal 
 cases, where questions of law arise at the trial, either 
 as to the admission of testimony, or its legal effect 
 when admitted, if doubts are entertained, the facts are 
 brought before this court in the form of a report, or case 
 agreed on; if the objections afford reasonable ground 
 for doubt, the presumption is that judgment would be 
 suspended until the opinion of the superior court be 
 known. As far as I know, questions of this descrip- 
 
192 LIFE OF JACOB BARKER. 
 
 tion have always been submitted to the Supreme Court 
 in that manner. The experience of half a century has 
 not called for any legislative provision to vary this 
 course, or practice, nor am I aware that complaints have 
 ever been made that the exercise of this discretion has 
 been rigorous as respects the accused. On the contrary, 
 it will be found that the cases from inferior tribunals, 
 which have been reviewed, furnish no inconsiderable 
 evidence of the solicitude and tenderness of our courts 
 in allowing even to the greatest culprits the benefit of 
 every legal objection. 
 
 "If, however, in any given case the inferior court 
 should erroneously refuse to interfere, it would afford no 
 ground for a certiorari, because the remedy does not 
 apply to or reach the error sought to be corrected. 
 
 "If a bill of exceptions would lie in a criminal case, 
 the difficulty would be removed; but it is well settled 
 that it does not. 
 
 "With respect to the admission of the jurors, I will 
 confine my observations to the case of Andrew S. Nor- 
 wood. From the affidavits and certificates of the clerk, 
 it appears that Mr. Norwood was challenged for princi- 
 pal cause, and the decision of the challenge referred to 
 the court, without any objection on the part of the dis- 
 trict attorney. The specific ground of the challenge 
 was not in the first instance stated. The juror testified 
 that he had heard all the evidence given on the former 
 trial, having been present at it; that he had made up 
 his opinion perfectly on the evidence that the defend- 
 ants were all guilty, and had frequently expressed his 
 opinion to that efi'ect; upon being inquired of by the 
 district attorney, he stated that he felt no bias or par- 
 tiality against any of the defendants ; that if the testi- 
 
LIFE OF JACOB BARKER. 193 
 
 mony given on this trial should appear as it did on the 
 former, he should certainly find the defendants all 
 guilty ; and added, that he thought he felt competent to 
 give a verdict according to his oath and the evidence as 
 it should appear. 
 
 "The court decided that the juror stood indifferent, 
 and that the challenge was not true ; he was accordingly 
 sworn, and sat on the trial. 
 
 "On this evidence two questions arise: first, whether 
 the challenge forms a part of the record so as to be the 
 subject of removal by certiorari? Second, whether the 
 exception to the juror was well taken? 
 
 " The first question depends on this : do the facts con- 
 stitute a principal cause of challenge? This arises 
 when there is a manifest presumption of partiality; in 
 that case it excludes the juror; but a challenge to the 
 favor, where the partiality is not apparent, must be left 
 to the discretion of triers. The facts relied on generally 
 consist of slight circumstances, respecting which the law 
 has not laid down any certain rule: in such cases the 
 judgment of the triers is conclusive. The question 
 arising on such a challenge is altogether extrinsic of the 
 record. Evidence may be reviewed in a superior court 
 by a demurrer, or bill of exceptions ; but neither applies 
 to evidence in support of a challenge for favor. 
 
 "The next inquiry is, whether a principal cause of 
 challenge may become parcel of the record, and under 
 what circumstances? If it cannot in any case, it is 
 unnecessary to consider the objection taken to the 
 juror. 
 
 "It is laid down in 3 Bac. 766, that 4f a challenge 
 be taken and the other side demur, and it be debated, 
 and the judge overrules it, it is entered upon the 
 
 ir 
 
194 LIFE OF JACOB BARKER. 
 
 original record; and if at Nisi Prius, it appears upon 
 the postea what the judge hath done; but if the judge 
 overruled the challenge upon debate without a demurrer, 
 then it is proper for a bill of exceptions.' Chittj, I. v. 
 548, recognizes the same doctrine: he refers to Skin. 
 101, and Hut. 24; it is also said, p. 549, that if a de- 
 murrer be resolved on either to the array or to the polls, 
 there is no occasion for those circumstances which must 
 attend a demurrer to a plea, such as the signature of 
 counsel ; but it is good as soon as agreed on at the bar, 
 and the prothonotaries ought of right to enter it on 
 the record. These cases suppose a principal cause of 
 challenge, and establish the proposition, that where the 
 facts alleged as cause of challenge are not disputed, 
 the question is decided summarily by the court. On the 
 argument before me, the attorney-general conceded the 
 law to be, that if the challenge was good for principal 
 cause, and the other party demurred, it became parcel 
 of the record and might be removed: he contended, 
 however, that this was not a challenge of that descrip- 
 tion; that the facts made out a challenge for favor, and 
 that the judge was substituted in the place of triers by 
 consent of parties, and consequently that the question 
 was to be viewed in the same manner as if it had been 
 actually decided by the latter. 
 
 "If it should turn out that the defendants have not 
 established a principal cause of challenge, the argument 
 is well founded. The real difficulty, if any exists, is in 
 ascertaining whether the public prosecutor is to be con- 
 sidered as having demurred to the challenge. The pro- 
 ceedings in this stage were somewhat informal. The 
 more regular course would have been to have stated in 
 the first instance the facts relied on for cause; the 
 
LIFE OF JACOB BARKER. 195 
 
 prosecution would then, probably, have elected to plead 
 or demur. It seems, however, that the juror was chal- 
 lenged without specifying the cause, and the question 
 referred to the court. What was referred to the court ? 
 The juror was examined; there was no dispute about 
 facts ; when that happens in the case of a principal 
 challenge, as well as in that for favor, triers are ap- 
 pointed. The court were called upon to pronounce the 
 law to decide whether the facts made out a principal 
 cause of challenge ; or, in other words, whether thej are 
 sufficient to exclude the juror. I admit, if the facts 
 were only proper to be submitted to triers, in support of 
 a challenge for favor, the defendants are concluded by 
 the decision of the judge ; but if per se they formed a 
 principal cause, they may avail themselves as such. A 
 demurrer is an admission of the fact, submitting the law 
 arising on that fact to the court. On a demurrer to a 
 challenge, no strict technical form seems to be required. 
 Have not both parties conceded that the testimony of 
 the juror was true? And have they not called on the 
 court to declare the law arising on that testimony? 
 Will it be denied that this is in substance a demurrer ? 
 Or will it be gravely contended that because the party 
 may not have said in terms he demurred to the chal- 
 lenge, but submitted to the court whether it was suffi- 
 cient in point of law, therefore a substantial difference 
 exists between the two cases, — that the one shall be en- 
 tered on the record and shall be subject to review, while 
 the other is final and conclusive? I cannot persuade 
 myself that the rights of any party are held by such a 
 tenure, and, particularly, in a criminal case where there 
 is no remedy by bill of exceptions. I am, therefore, of 
 opinion that the judge having been called upon to de- 
 
196 LIFE OE JACOB BARKER. 
 
 cide whether the challenge was valid in law, it is in 
 substance the same as if the party had demurred in ex- 
 press terms. If viewed in the light of a demurrer, it 
 becomes parcel of the record, and is liable to be re- 
 moved bj certiorari. That the counsel for the defend- 
 ants considered the decision on the challenges as subject 
 to the revision of a superior tribunal, and did all that 
 was deemed necessary to secure that right, is apparent 
 from the fact alleged in the affidavit of Mr. Hoyt, who 
 says that the defendants' counsel requested the court to 
 take down the testimony as to the competency of the 
 jurors, in order to give the parties the benefit of review- 
 ing the decision, and that the presiding judge, upon 
 such request, read over the notes of evidence, and cor- 
 rected the same in some particulars on the suggestion 
 of the defendants' counsel. It is, however, contended 
 that this case falls within that part of the doctrine laid 
 down by Chitty and Bacon, where it is said that if the 
 challenge is overruled without demurrer, on being de- 
 bated, the objection may afterward be made the subject 
 of a bill of exceptions; and, as no bill was taken, the 
 decision could not be brought before the Supreme Court 
 unless by consent. It seems to me this rule does not 
 apply in criminal cases. Whether the counsel demurs 
 the challenge, or merely argues that it is not good in 
 law, creates no material distinction. If the distinction 
 was ever entertained in the English courts, it must have 
 been founded on a belief that a bill of exceptions would 
 lie. But if it be a conceded point that no bill of excep- 
 tions will lie, I think it goes far to show that the rule 
 laid down is not applicable to criminal but civil cases. 
 I have traced the doctrine to its source by examining 
 the cases laid down by Chitty. They are to be found 
 
LIFE OF JACOB BARKER. 197 
 
 in Skinner 101, Hut. 24. The case from Skinner was 
 decided 35 Charles XL, between the king and the city 
 of Worcester. It was an information in the nature of 
 a quo warranto. The case states that the counsel for the 
 citj of Worcester came with their bill of exceptions ; 
 thej challenged the array because the venire was re- 
 turned as by both the coroners, when, in truth, but one 
 of them returned it. They likewise challenged the polls, 
 for want of freehold, which was overruled. No ques- 
 tion was raised whether a bill of exceptions would lie. 
 Saunders, Chief-Justice, said if the judge overruled the 
 challenge upon debate without a demurrer, then it is 
 proper for a bill of exceptions. There are several an- 
 swers to this case if pressed on this application. The 
 case in Skinner was not strictly a criminal proceeding. 
 Informations at the common law partook of the nature 
 of a civil remedy, and in modern times are considered 
 as a civil remedy only. It must, I apprehend, have 
 been so considered by the court, otherwise a bill of ex- 
 ceptions would not have been suggested. This is evident 
 from the fact that prior to the 35th of Charles II. the 
 judges in England had expressed an opinion on this 
 point. 
 
 " In the cases of Sir Henry Yane, reported in Keelyn 
 15, 2 St. Tri. 443, 14 Cat. 2, a construction is given to 
 the statute, and held by all the judges, that the statute 
 of W. 2 C. 31, which gives the bill of exceptions, extends 
 only to civil causes, and not to criminal. Keelyn 
 states that the court agreed, the words of the statute 
 are as plain to this point. So, also, I. Keb. 324, where 
 the same case is reported, the judges observe a bill of 
 exceptions is not within the statute, or ever heard of, 
 
 the statute not extending to any indictment. This case 
 
 17* 
 
198 LIFE OF JACOB BARKER. 
 
 having been decided before the case of Skinner, it is 
 manifest the court had no reference to criminal pro- 
 ceedings when speaking of a bill of exceptions as ap- 
 plicable to a challenge disposed of without demurrer. 
 As a civil remedy, it may, undoubtedly, be pursued if 
 there is no demurrer to the challenge in form; but 
 even then, in a civil case, its necessity may well be 
 questioned^ as will presently be shown. The case then 
 leaves the principle untouched, that where the judge 
 decides the law on a principal challenge, whether arising 
 on demurrer or by a submission of the question, an 
 entry is made on the record, which may be reviewed. 
 
 " The decision in Skinner, upon which Chitty and 
 Bacon rest, is an authority to prove there is a remedy 
 where a good cause of challenge is overruled: it is an 
 admission of this principle. The public prosecutor 
 cannot be compelled to %emur : shall his refusal or 
 omission deprive the accused of a right ? Can the right 
 depend on such a contingency? I think not. In ac- 
 cordance with this view of the subject, it seems to me 
 the case of Hesketh vs. Braddock, 3 Burrows, 1347, de- 
 cided on a writ of error, proceeded. The record states 
 that the defendant challenged the array, to which the 
 plaintiff demurred ; the challenge was disallowed. The 
 defendant then ore tenus, in open court, challenged the 
 polls, because the jurors were citizens and freemen of 
 the city of Chester* the challenge was disallowed, and 
 the!^eupon the issue was tried, and a verdict found for 
 the plaintiff. The Court of King's Bench considered 
 the validity of the challenge and passed upon it as parcel 
 of the record ; there was no suggestion by the court or 
 counsel that the challenge to the polls was improperly 
 brought up J the challenge to the polls was not de- 
 
LIFE OF JACOB BARKER. 199 
 
 murred to, but it was disallowed. On what principle 
 did it become a part of the record? Manifestly because 
 the decision of the court upon it was substantially the 
 same as if a demurrer had been filed in form. 
 
 "In 3 Woodeson, 357, N. in the form of the record in 
 the case from Burrow is given. The challenge to the 
 polls is thus entered : — ' And hereupon the said S. B. 
 ^ ore temts, in open court challengeth the polls, because 
 he says that the jurors are citizens and freemen of the 
 city of Chester ; which said challenge by the court here 
 is disallowed.' Professor Woodeson states that the chal- 
 lenge ore tenus was omitted in the first engrossment of 
 the record ; that the defendant alleged diminution ; and 
 that it was then inserted by rule. The case sanctions 
 the doctrines contended for by the defendant's counsel, 
 that the challenge may be removed as parcel of ,the 
 record, provided it was a principal cause of challenge. 
 
 "The only remaining question is, whether the facts 
 stated by the juror constituted a principal cause of chal- 
 lenge. 
 
 "It will not be denied that every man, whether in a 
 civil or criminal case, is entitled to an impartial jury. 
 Though our constitution merely preserves the trial by 
 jury inviolate forever, and does not, in express terms, 
 guarantee an impartial jury, yet, ex vi termini, it is em- 
 braced in its provisions, as much so, as that the judges 
 shall be impartial men. The same general principle is 
 adopted by the English law: the only question is as to 
 the application of the principle. Can a juror be im- 
 partial or indifferent to the question who from a know- 
 ledge of the facts confesses that he has made up his 
 mind that the accused are guilty? It is a fallacy to 
 suppose such a man stands impartial, merely because he 
 
200 LIFE OF JACOB BARKER. 
 
 has no malice or ill will against the defendant. This 
 doctrine, however, has* been strenuously urged, and cases 
 have been cited to show that the law is so understood in 
 England. 
 
 ''The case of the King vs. Edmunds and others, 4 
 Barn, and Al. 170, Chief-Justice Abbot observes, that 
 expressions used by a juryman are not a cause of chal- 
 lenge, unless they are to be referred to something of 
 personal ill will toward the party challenging. He re- 
 lies on the doctrine laid down in the year-books, 7 Hen. 
 6, fol. 25, where Babington, Justice, says, ' If the juror 
 has sai(f he will pass with the one party, for the know- 
 ledge he has of the matter, and of the truth, he is indif- 
 ferent; but if he has said so for any affection of the 
 party, he is favorable.' Hawkins, B. 2, ch. 43, S. 28, 
 is also referred to. He observes, 'that it hath been 
 allowed a good cause of challenge, that the juror hath 
 declared his opinion beforehand, that the party is guilty, 
 or will be hanged, or the like.' Hawkins adds, 'Yet it 
 hath been adjudged that if it shall appear that the juror 
 made such declaration from his knowledge of the cause, 
 and not out of any ill will to the party, it is no cause 
 of challenge.' The opinion of the Court of King's 
 Bench, in Barn, and AL, rests on these ancient authori- 
 ties; it does not profess to consider the soundness of 
 the doctrine advanced. Now, admitting the law had 
 been so applied at an early day, when the prisoner did 
 not possess even the right of producing testimony, I 
 apprehend that after the lapse of centuries, when the 
 rights of parties are better understood, and have been 
 more accurately defined, it would not be presumption 
 to inquire whether the common law relative to the right 
 of challenge had not, in this instance, been misapplied ; 
 
LIFE OF JACOB BARKER. 201 
 
 or whether it was consistent with the law as laid down 
 by Lord Coke, B. 2, 155 a., who says, 'The rule of law 
 is, that the juror must stand indifferent as he stands un- 
 sworn.' It seems to be admitted in some of the old 
 cases, that an opinion formed and expressed is good 
 cause of challenge. Upon what is this founded? On 
 the supposition that it creates a bias. All experience 
 goes to prove the infirmity of huni^n nature is such, 
 that we cannot, at pleasure, get rid of preconceived 
 opinions. The question is not how great is the bias, but 
 does any exist? The least is suflScient to exclude. Can 
 the source from whence it is derived be material? As 
 to the accused, it is the same thing whether the bias 
 proceeds from a preconceived opinion, or malice and 
 ill will; be it either, he is equally affected. Why, 
 then, superadd the necessity of proving malice or ill 
 will? Without it, the parties do not contend on equal 
 ground, by requiring it to be proved in order to exclude 
 the juror, it only shows the disparity to be greater. If 
 the question was entirely novel, I should think our 
 courts would incline to take a different view of the ques- 
 tion. But it has occurred here, and has been well con- 
 sidered. The Supreme Court decided in the case of 
 Blake vs. Millspaugh, J. John. 316, it was good cause of 
 challenge to a juror that he had previously given his 
 opinion on the question in controversy between the 
 parties. The case of Durree vs. Mosher, 8 John. 445, 
 is not contradictory : there the juror said, if the reports 
 of the neighbors were correct, the defendant was wrong 
 and the plaintiff was right ; no definite opinion was ex- 
 pressed or formed ; the court so adjudged, and observed 
 that the declaration wa-s hypothetical. It is no more 
 than saying, if the defendant has done an illegal act, 
 
202 LIFE OF JACOB BARKER. 
 
 let him answer for it, which is no evidence of partiality. 
 In the case of Pringle vs. Huse, 1 Cowan, 432, a juror 
 was challenged for having expressed an opinion against 
 the plaintiff; it was held that this was a principal cause 
 of challenge, and should be tried bj the court, and that 
 the juror challenged may be called as a witness. In 
 the case of Coleman vs. Hagerman, the same prin- 
 ciple was adopted by the Supreme Court. The late 
 Chief-Justice Spencer has furnished me with a manu- 
 script opinion of his in that cause. It was an action 
 for an assault and battery of an aggravated character; 
 the verdict was for four thousand dollars damages. 
 The grounds of the motion were that Graham, one of 
 the jury, had made use of language indicating an 
 opinion that the defendant ought to be exemplarily 
 punished. It appeared that Graham was wholly unac- 
 quainted with the parties until after the trial, and that 
 the opinions expressed by him were founded on news- 
 paper publications. He swore that he had no bias 
 against, or partiality for, either of the parties, and per- 
 sonally knew nothing of the assault and battery com- 
 plained of: yet the court unanimously awarded a new 
 trial, on the ground that Graham did not stand indiffer- 
 ent, in consequence of the opinions he had expressed. 
 In the manuscript opinion referred to, the late chief- 
 justice stated the principles adopted by him, on the 
 then recent trial of Van Anstyne for the murder of 
 Huddlestone. It was thus : — If a person had formed or 
 expressed an opinion for or against the prisoner on the 
 knowledge of any of the facts attending the murder, or 
 from information of those acquainted with the facts, he 
 considered it good cause of challenge ; but if the opinions 
 of the jurors were formed on mere rumors and report, he 
 
LIFE OF JACOB BARKER. 203 
 
 decided that such opinions did not disqualify the jurors ; 
 and, as I understood, the opinions delivered on that 
 solemn occasion met the decided approbation of the Su- 
 preme Court. 
 
 ''The principle upon which these cases were decided 
 was, that any opinion formed and expressed by a juror 
 is of itself evidence that he did not stand indifferent 
 between the parties. I do not perceive how the case 
 before me can be distinguished. On the trial of Fries 
 for treason, before Judge Iredell, on an application for 
 a new trial, one question was as to the competency of a 
 juror who had expressed himself in strong terms as to 
 the prisoner's guilt. That learned judge put the ques- 
 tion on this ground, that when a predetermined opinion 
 is formed, from whatever motives, it creates an im- 
 proper bias extremely difficult to get rid of, and may 
 influence an honest man unwarily to give a wrong ver- 
 dict ; that he becomes less able to discriminate facts. 
 The reasoning of Chief-Justice Marshall on the trial 
 of Colonel Burr (vol. 1, pp. 370, 419) is directly in 
 point. He has shown in the most satisfactory manner 
 that a juror who has given his opinion cannot be con- 
 sidered impartial ; that the natural tendency of pre- 
 conceived opinions in a juror is to obstruct the impar- 
 tial administration of justice. He asks why a distant 
 relative, or he who has prejudices, cannot serve on a 
 jury ? Because he is presumed to have a bias. He 
 may declare that, notwithstanding, he is determined to 
 listen to the evidence and be governed by it ; but the 
 law will not trust him. The chief-justice observes, 
 'Is there less reason to suspect him who has prejudged 
 the case and deliberately formed and delivered an 
 opinion upon it ? The law suspects him, and not with- 
 
204 LIFE OF JACUB BARKER. 
 
 out reason : he will listen with more favor to that testi- 
 mony which confirms than to that which would change 
 his opinion. It is not to be expected that he will weigh 
 evidence or argument as fairly as a man whose judg- 
 ment is not made up in the case.' These enlightened 
 views place the question upon the true ground ; not 
 whether the juror feels resentment or ill will, but 
 whether, for any cause, he has a bias on his mind that 
 may disqualify him from deciding with strict impar- 
 tiality. I entirely concur in the reasoning of that case 
 as containing a luminous exposition of the ground upon 
 which the rule is founded. 
 
 "The result of my opinion is, that enough has been 
 shown to render the decision in the court below ques- 
 tionable ; that the challenge forms a part of the record ; 
 and that the defendants are entitled to the allowance of 
 a certiorari." 
 
 CHAPTER XIII. 
 
 MAXWELL BEFORE THE GRAND JURY. 
 
 The reader of the preceding pages will have no diffi- 
 culty in discovering that the bone of contention in the 
 conspiracy against Mr. Barker has, in addition to the 
 efforts of the guilty to escape by creating suspicions 
 against the innocent, been the securities received from 
 the Life and Fire Company. 
 
 A conspiracy was formed immediately after the first 
 trial, by a portion of the accused and others connected 
 with the incorporations in question, — in which transac- 
 tions Mr. Barker had no part or lot, — to shield the guilty 
 
LIFE OF JACOB BAllKEH. 205 
 
 and make Mr. Barker answerable for the errors of the 
 real offenders. This conspiracy was in part concocted at 
 the house of Josiah Haden. Maxwell there met many 
 of the untried individuals, who were made to understand 
 that, if Jacob Barker could be convicted. Maxwell 
 would be satisfied to let the others off. Mr. Barker, 
 having obtained what he considered sufiicient evidence 
 of that conspiracy, went before the grand jury and 
 made a formal complaint against some of the parties ; 
 it was near the close of the session of the grand jury, 
 ►so that they had no time to investigate the matter. On 
 receiving notice of this fact, Mr. Barker repaired again 
 to the jury-room and requested a return of his proofs ; 
 Maxwell, appearing before them, resisted his application, 
 demanding to have the papers delivered to him ; Mr. 
 Barker objected, saying to the grand jury that if they 
 allowed Maxwell to have them, he would not allow him the 
 use of them on his trial ; that his object was to protect 
 others at his expense. The grand jury offered to return 
 them to Mr. Barker if he would withdraw his complaint : 
 this he refused to do, when Maxwell insisted on their 
 being filed in court, to be handed to the next grand jury 
 as unfinished business, pledging himself that Mr. Barker 
 should have the benefit of them on his trial, whereupon 
 they filed them in court, to be presented to the next 
 grand jury. 
 
 Maxwell followed the grand jury into court the 
 moment they had delivered the papers to the clerk ; he 
 took up the bundle, selected therefrom six letters from 
 Mr. Eckford to Mr. Barker, and attempted to leave the 
 court. Mr. Hatfield, the clerk, called him back before 
 he reached the door, that he might take a memorandum 
 of the papers he was about carrying off. He did so ; 
 
 18 
 
206 LIFE OF JACOB BARKER. 
 
 and these letters were never thereafter seen by the 
 court, nor by Mr. Barker, nor by the clerk of the court, 
 until after the whole proceedings had been dismissed. 
 
 So sacred have the files of the court heretofore been 
 considered, that papers once placed there could not be 
 obtained for the use of any other court, except brought 
 by its authority, and then always accompanied by the 
 clerk, their legal guardian. 
 
 Pending the negotiation between Maxwell and the 
 conspirators to let them off if they would furnish 
 evidence to convict Jacob Barker, a lady called at Mr., 
 Barker's house in the night, and informed him that she 
 had overheard a conversation of these men, or some of 
 them, when it was stated that they must destroy Mr. 
 Barker, or he would destroy them. 
 
 The judge having made many errors in stating the 
 evidence to the jury, and Maxwell's published speech 
 being calculated to mislead, Mr. Barker, knowing him- 
 self to be innocent, reviewed the case, and made some 
 remarks about his previous difficulties with one of the 
 jury, and about the manner in which they were drawn, 
 which the district attorney denominated libels and 
 brought two suits therefor. On the trial, the ruling of 
 the recorder was such, that Mr. Barker took exceptions 
 thereto, the recorder promising to give him an opportu- 
 nity to have the case reviewed by the Supreme Court; 
 in consequence of which, relying on the soundness of 
 his exceptions, he refused to sum up. 
 
 The jury, under an illegal charge from the recorder, 
 sustained the complaint. 
 
 Mr. Barker made the necessary statement to have the 
 case reviewed by the Supreme Court. The recorder pro- 
 mised to consider it during the coming vacation. Rely- 
 
LIFE OF JACOB BARKER. 207 
 
 ing on this promise, and that judgment would conse- 
 quently be deferred until the decision of the Supreme 
 Court, Mr. Barker made no preparation to meet the 
 case sooner. 
 
 CHAPTER XIV. ' 
 
 RICHARD RIKER, RECORDER OF THE CITY OF NEW YORK. 
 
 On the last day of the term, when, but foi* the afore- 
 said arrangement, it would have been regular for judg- 
 ment to have been pronounced, the recorder, on going 
 into court, met Dudley Selden, Esq., the friend of Mr. 
 Barker, and informed him that if he had any thing to 
 say on the subject of his case, it must be said before 
 one o'clock that day. Mr. Barker was notified thereof, 
 and hastened to the court for the purpose of remon- 
 strating. On his way thither he had the good fortune 
 to meet his friend, Thomas Addis Emmett, Esq., who 
 accompanied him to the court and made the following 
 speech : — 
 
 EXTRACTS FROM MR. EMMETT'S SPEECH. 
 
 ^' Under any other circumstances I should consider 
 an apology due from me for the unprepared state in 
 which I undertake to discuss the questions now before 
 the court. It was not until after the opening of the 
 court this day that I was retained as counsel in this 
 case; and the circumstances of this trial, connected 
 with the facts set forth in the afiidavit read to the court, 
 
208 LIFE OF JACOB BARKER. 
 
 induced me to believe that an argument would not now 
 be required. 
 
 "Although unprepared, I hope, from general reason- 
 ing upon the law of libel, to be able to satisfy the court 
 that they ought not to suffer sentence to pass against 
 the defendant. The argument I am about to offer to the 
 court I can present with the more confidence, from being 
 able to say that when I read the testimony and pro- 
 ceedings on t'his trial in the public newspapers, and 
 before I was engaged in, or could have anticipated any 
 connection with, this cause, when it passed under my 
 review merely as a common observer, noting it among 
 the occurrences of the day, I was surprised at the law 
 laid down in the course of the trial, and seriously 
 doubted its accuracy. 
 
 " Setting aside the particular facts of this case, it 
 seems to me that a rule has been laid down by this 
 court which is matter of vast public concern, and which 
 it behooves us all to examine well, if we Avould sustain 
 the liberty of the press, and give full and proper scope 
 to the freedom of discussion. 
 
 "I need not tell the court that I allude to that rule 
 wherein they have said that malice is not a constituent 
 part of the offence to be passed upon by the jury, and 
 wherein they have also said that unless the defendant 
 can prove the truth of the libel, proof of the motive 
 with which he published it is not to be addressed to the 
 jury, but to the court in mitigation of punishment after 
 the verdict has been rendered. 
 
 " Can this be law ? In a civil action for a libel, 
 malice is the gist of the offence, either to be inferred 
 from the libel itself or proved from extraneous facts; 
 much more so in an indictment. I scarcely know, 
 
LIFE OF JACOB BARKER. 209 
 
 indeed, I may say, there is not in the whole range of 
 criminal law, a case, except where an act has been 
 created a positive oiFence by statute, where the motives 
 of the defendant do not become the subject of proof 
 before the jury. In murder there must be predeter- 
 mined malice proved or inferred. Even in man- 
 slaughter accidental killing is not enough: there must 
 be proof of sudden passion, or death arising from an 
 intentional wrong of some kind. 
 
 " Let me not be understood that the prosecutor must 
 prove malice apart from the libel. The doubt which 
 may arise relative to the proposition which I have laid 
 down is not on account of any defect in the proposition, 
 but in the introduction and application of testimony. 
 Thus, in murder, when it is proved that one man killed 
 another, the jury may infer, from proof of the fact and 
 manner of killing, that it was done maliciously, but it 
 will not be urged that the party charged cannot show it 
 was done in self-defence. So in libel the jury may 
 infer from reading the libel itself that the motive of the 
 publication was malicious, and they ought so to infer 
 when it calumniates character without cause and with- 
 out excuse ; yet still the publisher may show from other 
 parts of the publication, and from extrinsic facts, that 
 the publication was without malice and for justifiable 
 cause. 
 
 " It may, perhaps, be said that malice is a question 
 of law and not of fact. To a certain extent, high 
 authorities may be produced to support and contradict 
 that position, but only to a certain extent ; for I believe 
 it never has been maintained except where the defend- 
 ant has offered no evidence to establish a justifying 
 excuse. Where he has offered any, that, and with that 
 
 18« 
 
210 LIFE OF JACOB BARKER. 
 
 the whole matter, must be submitted to the jury. But, 
 as it is unnecessary to discuss that point, I shall content 
 myself with saying that I think the judges who have 
 considered malice under any circumstances as an in- 
 ference of law have confounded prima facie presump- 
 tions from uncontradicted and unexplained testimony, 
 and therefore conclusive presumptions from evidence, 
 with legal infer encef. I do not believe that malicious in- 
 tention is projDorly a presumption of law, either in civil 
 or criminal cases ; but even if it be, that can make no 
 difference in criminal prosecutions, wherein our system 
 of the law expressly provides that the jury are judges 
 of the law as well as of the facts ; and, therefore, in 
 either point of view they are to pass on the intention of 
 the publisher as a constituent part of the offence. Two 
 of the jurors, at different times, clearly expressed their 
 opinions that malice was not imputable to Mr. Barker; 
 perhaps the others thought the same thing. So strong 
 was that opinion, that the jury came in to ask the 
 opinion of the court whether they might acquit the de- 
 fendant if they thought he had no malice. To which 
 the court replied by the charge of which I most re- 
 spectfully but strenuously complain. Suppose the jury 
 had brought in their verdict that Mr. Barker had pub- 
 lished the matter set forth in the indictment, but not 
 maliciously: could the court consider this anything but 
 a general verdict of acquittal ? At any rate, could the 
 court convict the defendant on it ? How then can it 
 be- said they have nothing to do with the question of 
 malice or no malice, when their verdict negativing it 
 would have acquitted the defendant? And can any 
 man undertake to say that if the jury had not received 
 
LIFE OF JACOB BARKER. 211 
 
 this explicit or erroneous charge from the court, they 
 would ever have brought in a verdict of guilty ? 
 
 "During the struggles in England relative to the law 
 of libel, I do not believe that it was ever seriously con- 
 tended that malice was not at the foundation of the 
 offence. In all the inroads which were made upon the 
 law of libel before, and more especially by, Lord Mans- 
 field and his successors, and to restore which the act of 
 Parliament was passed, the doctrine that the malicious 
 intent of the writer or publisher was not, either as 
 matter of law or fact, the test whereby the crime was 
 to be judged, was never avowed. I consider that the 
 decisions which went to restrain the rights of jurors to 
 judge whether the publication was a libel or not, 
 whether it improperly reflected upon the conduct or 
 character of the prosecutor, which prevented the truth 
 from being evidence, were innovations upon the com- 
 mon law, and that the intervention of legislative 
 power was not to correct any error or supply any de- 
 ficiency in that law, but to put an end to the inno- 
 vations upon the rights of jurors which Lord Mansfield 
 particularly had attempted to make. * The English 
 statutes and our statutes were passed, not for the pur- 
 pose of giving more extended liberty to writers and 
 publishers, but to restore these rights in those parts 
 where they have been invaded, and for that reason their 
 phraseology and provisions are confined to those rights. 
 We must, therefore, not look to the statutes for the 
 purpose of ascertaining what defence the publisher may 
 make, or to show to what extent he may prove his 
 motives, or that he published without malice, but we 
 must look to the common law, and, although the statute 
 says nothing as to the malicious intent of the party, the 
 
212 LIFE OF JACOB BARKER. 
 
 strong and only inference is that in this particumr the 
 rights of the press had not been openly violated. 
 
 ''If the motives of the party be matter to be passed 
 upon by the jury as a constituent part of the offence, 
 then I say proof of those motives is to be addressed to 
 them, and not to the court in mitigation of punishment. 
 Nothing is to be submitted exclusively to the court by 
 affidavit that goes to the gist of the crime. The facts 
 which are to be presented to the court in mitigation are 
 properly those which cannot be resorted to as a defence, 
 — facts which do not go to show that a verdict of guilty 
 ought not to be rendered, but that, although the crime 
 has been committed, it has been committed under such 
 circumstances as to call for iliercy, even at the hands of 
 justice. 
 
 "If I am right in what I have said, then the defend- 
 ant ought to have been allowed to give in evidence any 
 facts, whether they constitute a part of the publication 
 or not, which can by any possibility be associated with . 
 the motive for jDublication, however slight that connec- 
 tion may be, and the jurors, either as passing on the 
 law or the fact, are to judge of the motive, whether just 
 or malicious, and the weight and bearing of the testi- 
 mony. Were it otherwise, the court, by keeping back the 
 testimony, would constitute themselves the sole judges 
 of the purpose of the publication, and of the malice 
 of the publisher. Under this view it appears to me 
 that the testimony which was rejected by the cou'^t, and 
 which is set forth in the third and fourth points of the 
 case read, ought to have been admitted. As to the 
 pamphlet itself, it seems to me not susceptible of a 
 doubt but that the defendant was entitled to have the 
 whole or any part of it read. 
 
LIFE OF JACOB BARKER. 213 
 
 "But let us examine the libel itself as set forth in 
 the indictment, and the testimony given for the purpose 
 of seeing whether the testimony ought not to have been 
 received, in order to show the truth of the publication. 
 
 "The nature of that publication, I confess, as treated 
 by the court, seems to me to have been misunderstood. 
 It has been taken for granted as charging Mr. Hatfield 
 with corrupt conduct, and on that interpretation of it 
 most of the decisions of the court depend, I view it 
 differently. It charges no corruption on Mr. Hatfield ; 
 it only states facts, from which the reader would be led 
 to infer corruption; but it would be the inference of the 
 mind, not the allegation of Mr. Barker. He stated 
 them as circumstances which caused him alarm and 
 anxiety, and he did no more. As to him, then, the 
 only inquiry should have -been. Were the facts true ? 
 Were the alarm and anxiety real, and had they a 
 rational foundation ? If these matters were proved, he 
 could certainly avail himself of the constitutional de- 
 fence that he published the truth wdth good motives 
 and for a justifiable end; and, as the first thing to be 
 proved was that he published the truth, he should have 
 been permitted to give in evidence every thing that 
 tended to prove the truth of the facts he had stated in 
 his publication. 
 
 "In addition to other facts, he has proved that after 
 the general panel had been drawn — which consisted of 
 two hundred — he informed Mr. Strong that there were 
 three on that pnnel who ought not to sit on a jury to 
 try him, that they were personally hostile to him, and 
 that Mr. Davenport and Mr. Norwood were two of 
 them, and he thinks Mr. Mead was the third ; that Mr. 
 Davenport was the first juror drawn from that panel. 
 
214 LIFE OF JACOB BAllKER. 
 
 and Mr. Norwood the second, and Mr. Mead the fifth ; 
 that the mode in which the box containing the ballots 
 of jurors was shaken by Mr. Hatfield attracted the 
 observation of a bystander, who thought it was moved 
 in a manner not to agitate the ballots ; and at the 
 time it so much excited the defendant's attention that 
 he went to the clerk and asked for the liberty to 
 shake the ballot-box, which was refused. This testi- 
 mony was given or ofi'ered to prove the truth of the 
 libel, by showing that the facts averred in the publica- 
 tion were truly stated, that there was apprehension — 
 and, if the court please, good ground to apprehend — 
 as to the accidental drawing of the jury, and that the 
 mind of the defendant was truly and justifiably filled 
 with doubt and alarm. Indeed, there is but one asser- 
 tion upon the face of this libel the truth of which is not 
 entirely proved. 
 
 ^'I humbly contend that the court erred in their view 
 of the publication when they charged the jury that they 
 must either convict Mr. Hatfield — a witness in the case 
 — or Mr. Barker. As the bringing home a paper by 
 the accredited agent, who received it from a member of 
 the legislature, was not criminal, and, therefore, if an 
 innocent though mistaken allegation of that kind was 
 made, it was not a libel ; and also that the court erred 
 when they rejected all proof that did not go to establish 
 corruption in Mr. Hatfield, and refused to admit proof 
 of the facts stated in the publication as the foundation 
 for the defendant's alarm, and which would unquestion- 
 ably show that there was very justifiable cause for 
 alarm. 
 
 "If we examine the facts admitted to have been 
 proved by the defendant, as they must have presented 
 
LIFE OF JACOB BARKER. 215 
 
 themselves to liis mind, it must be obvious that it would 
 have required more than common confidence in in- 
 dividual integrity, not to have apprehended that this 
 was not all the result of accident, and more especially 
 when we consider the situation of the defendant as one 
 on trial. Here are twelve jurors to be drawn from a 
 panel of two hundred. The chance that Mr. Davenport 
 was to be drawn first was as one to two hundred. 
 The chance that Mr. Davenport and Mr. Norwood 
 would be drawn the two first was as the square of 
 two hundred, or as one to forty thousand. When 
 we consider, in connection with this, that Mr. Mead 
 was also on the jury, that the chances that Mr. Daven- 
 port, Mr. Norwood, and Mr. Mead, the only three per- 
 sons previously designated as objectionable and hostile 
 by Mr. Barker, would not all be on the jury, would 
 be infinitely greater ; and, further, that the two first 
 jurors might become triers of the qualifications of the 
 other jurors, and admit them into the jury-box, and that 
 these two jurors were the personal enemies of the de- 
 fendant ; and I ask what ordinary mind could withstand 
 the conclusion that all was not accidental in the drawing 
 of the jury. With chances forty thousand — yes, forty 
 millions — to one against the happening of an event that 
 did happen, attended with the other circumstances which 
 arose on that trial, who will tell me that the mind of 
 any man whose interests were deeply involved in the 
 result would have no misgivings, — that the party on trial 
 would be filled with doubt and alarm ? It is impossible; 
 a mind so situated could not resist such doubts ; no con- 
 fidence is strong enough to encounter these things and 
 not hesitate. I, who in these latter days am more 
 ready to set down extraordinary events to the roguery 
 
216 LIFE OF JACOB BARKER. 
 
 of man than to miraculous interposition, would have 
 doubted. If the jurors had all the matters put before 
 them, they must have believed that there was good 
 ground for doubt, apprehension, and alarm." 
 
 This speech availed nothing. The recorder, being bent 
 on his purpose, proceeded to fine Mr. Barker for the 
 alleged offence two hundred and fifty dollars in each case ; 
 they were taken to the Supreme Court, which decided that, 
 the penalty being inflicted, and the money paid, they could 
 not interfere ; that if they should reverse the judgment 
 their decision would be a nullity, the money having passed 
 beyond its control; that the court never allowed itself 
 to do a thing which, when done, would be a nullity. 
 
 For the particulars of the further action of the 
 recorder in the matter, and the proceedings before the 
 Supreme Court, the reader is referred to the petition of 
 Mr. Barker, in the next chapter, to his Excellency 
 Martin Van Buren, the Governor of the State, com- 
 plaining of the conduct of the recorder. 
 
 CHAPTER XY. 
 
 MEMORIAL 
 
 " To the Gfovernor, for the removed of Richard Riher^ 
 Recorder of the city of New York. 
 *' Jacob Barker, of the city of New York, merchant, re- 
 spectfully represents to his Excellency Martin Yan Buren, 
 Governor of the State of New York, that there was a 
 very dangerous combination formed in the year 1826, by 
 Richard Riker, recorder of the said city of New York, 
 
LIFE OF JACOB BARKER. 217 
 
 together "with several aldermen of tlie said city, and 
 many other persons, some of whom also held judicial 
 and official stations in the said citj, which combination 
 was a breach of trust on the part of most or all of the 
 parties concerned therein, and very disastrous in its con- 
 sequences to the Tradesmen's Bank and the Life and 
 Fire Insurance Company, and, consequent!}^, to the cre- 
 ditors of, and the persons interested in, those institu- 
 tions. That this combination w^as denominated a frau- 
 dulent conspiracy, and your memorialist was prosecuted 
 as a party thereto, although he was not only innocent, 
 l^ut ignorant, of the matters charged in the bill of com- 
 plaint, and although he was absent from the State of 
 New York, on a visit at Nantucket, when such combina- 
 tion or conspiracy was formed. That Hugh Maxwell, 
 the district attorney, was induced to abandon the prose- 
 cution of nearly all the real parties, and to devote his 
 utmost energies against your memorialist, and, while 
 these proceedings were going on, accepted of large fees 
 from some of the real parties, under the pretence of serving 
 them in some civil business. That at the same time the 
 said recorder, and other members of the Common Council 
 of the said city, who Avere implicated in the unfortunate 
 stock transactions in the year 1826, induced the said 
 Common Council to lavish the public treasure on the said 
 district attorney, by increasing his salary one thousand 
 dollars per annum, expressly on the ground of his in- 
 creased duties, which increase grew out of his extraor- 
 dinary exertions in the proceedings complained of. That 
 they also induced them to appropriate the funds of the 
 said city to the payment of five hundred dollars to Seth 
 P. Staples, Esq., a lawyer from the State of Connecti- 
 cut, recently established in the said city, and who had 
 
 19 
 
218 LIFE OF JACOB BARKER. 
 
 been previously employed to defend Matthew Reed, one 
 of the said aldermen concerned in the said combination 
 or conspiracy, and five hundred dollars to Ogden HoiF- 
 man, Esq., and large sums to other counsel, to assist in 
 such proceedings, and to the payment of other great 
 expenses attending the same. That the said district 
 attorney received his appointment from the court of 
 which the recorder and all the aldermen of the said city 
 are members, and is dependent upon their pleasure for 
 his continuance in said office. That the said Richard 
 Riker was examined as a witness on the trial for the 
 said alleged conspiracy, at which time he was in posses- 
 sion of a contract for the purchase and sale of one-half 
 of the stock of the said Tradesmen's Bank, which contract 
 he did not produce, and which, if he had produced it, 
 would have developed the real parties to the alleged 
 conspiracy, and have led to testimony that would have 
 established your memorialist's freedom from offence. 
 That, misled by the perjury of witnesses, by the sup- 
 pression of facts, by the misapprehension of the law on 
 the part of Judge Edwards, who presided on the said 
 trials, by the misstatement of testimony made by the 
 said judge, probably arising from his deafness, and by 
 the said district attorney's combining together so many 
 transactions and individuals for alleged offences separate 
 and distinct from each other, insomuch that the said 
 judge declared that the human mind was scarcely capa- 
 ble of comprehending the whole, the petit jury was 
 induced to pronounce an. opinion on the mystery un- 
 favorable to your memorialist. That your memorialist, 
 knowing himself to be innocent, and that there had 
 been dreadful frauds resorted to in creating such mys- 
 tery, published an appeal to his fellow-citizens, in which 
 
LIFE OF JACOB BARKER. 219 
 
 he drew inferences unfavorable to some of the officers 
 of the court and jury. That he may have been, and no 
 doubt was, mistaken in ascribing improper motives to 
 some of them ; but his peculiar situation, his ignorance 
 of the facts which have since been developed, and his 
 knowledge that there was fraud somewhere, will, he 
 hopes and trusts, furnish good reasons to believe that 
 his publication was without malice. 
 
 "And jour memorialist further represents that for 
 such publication the said district attorney procured two 
 several bills of indictment for libel against your memo- 
 rialist, the one for a libel upon Abraham B. Mead, one 
 of the jury, and the other for a libel upon Richard Hat- 
 field, clerk of the court of oyer and terminer, which he 
 tried before the court of sessions, in which the said 
 Richard Riker presided. That the indictment for a 
 libel on the said Richard Hatfield was first tried. That 
 the said Richard Riker there refused to allow your me- 
 morialist to jDrove that there was no malice in the said 
 publication, noted the exceptions made by your memo- 
 rialist, and promised to give him an opportunity of 
 having the case reviewed before the Supreme Court. 
 That relying upon that promise, and upon the certainty 
 that his errors were palpable and conclusive, and alto- 
 gether sufficient to render void the whole proceedings, 
 your memorialist declined summing up. That the said 
 Richard Riker charged the jury that malice was not 
 necessary to sustain an indictment for a libel, and that 
 the matters published . being true was no justification. 
 That by such means he induced the jury to pronounce 
 the said publication a libel, although they, at the time, 
 declared that they believed that there was no malice in 
 such publication. That application was made on the 
 
220 LIFE OF JACOB BARKER. 
 
 coming in of the verdict in the case of the said Richard 
 Hatfield to the said Richard Riker for a statement of 
 the case to be taken to the Supreme Court, and he 
 promised Dudley Selden, Esq., the counsel of your me- 
 morialist, that the subject should be considered during 
 the coming vacation ; on which promise, as also on the 
 previous promise of giving your memorialist an oppor- 
 tunity of having the case reviewed, your memorialist 
 relied, and did not prepare to oppose a final decision at 
 that term. That, on the last day of the term, the said 
 Richard Riker met the said Dudley Selden as he was 
 going into court, and stated to him, that if your memo- 
 rialist had any thing to say on the subject of his case, 
 it must be said before one o'clock on that day. That 
 your memorialist procured the assistance of the 
 late Thomas Addis Emmett, Esq., who reminded the 
 said Richard Riker of his promise to consider the case 
 during the coming vacation, and pointed out the unpre- 
 pared state of your memorialist for the argument, his 
 cause for alarm, the absence of malice, and the errors 
 of the said Richard Riker in rejecting testimony and in 
 laying down the law, and entreated a new trial, or, at 
 any rate, delay until the opinion of the Supreme Court 
 should be known; but all was unavailing. That the said 
 Richard Riker proceeded immediately to pass sentence, 
 imposing on your memorialist a heavy fine, and requiring 
 him to give security in his own bond for two thousand 
 dollars, and two sureties of one thousand dollars each, 
 for his good conduct for two years. That this latter 
 condition was, in the opinion of your memorialist, a 
 , violation of the Constitution of the State, and that, had 
 your memorialist been guilty of the most malicious and 
 unprovoked libel, it would in no wise have warranted 
 
LIFE OF JACOB BARKER. 221 
 
 such a decision, much less was the said Richard Riker 
 warranted in trampling on the law, and violating the 
 Constitution, to oppress jour memorialist in a case 
 where he knew the innocence of jour memorialist, and 
 his own guilt, in relation to the transactions which gave 
 rise to the imputations against jour memorialist, and 
 from which jour memorialist, bj the said publication, 
 w^as endeavoring to vindicate himself. That the said 
 Richard Riker further stated from the bench, when he 
 thus imposed a fine upon jour memorialist and placed 
 him under the heavj bonds above mentioned, that he 
 might have been much more severe ; that the law author- 
 ized him to send jour memorialist to prison ; that he had 
 been tampered with out of court, which he afterward said 
 was to induce him to send jour memorialist to prison; 
 that thereupon jour memorialist demanded that the said 
 Richard Riker should state to the court, and to the 
 public, the names of the persons who had thus dared to 
 tamper with a court of justice, that thej might be dealt 
 with in a manner befitting their high ofi'ence; but the 
 said Richard Riker utterlj refused to give publicitj to 
 their names, or exert the power of his court for their 
 punishment. That, in stating the case for the Supreme 
 Court, the said Richard Riker omitted the testimonj of 
 George W. Strong, Esq., and much other testimonj, 
 erroneouslj stated the testimonj of Samuel H. Macj, 
 and denied or evaded the fact that he charged the jurj 
 that malice was not necessarj to constitute a libel, and 
 inserted in his statement of the case a deceptive clause, 
 in the following words : — 
 
 '' ' The defendant complains that, in both cases, in- 
 justice has been done to him ; that the court and the 
 jury have erred ; that the jur j have found verdicts 
 
 19* 
 
222 LIFE OF JACOB BAKKEK. 
 
 against him contrary to the evidence, and that the conrt 
 has misconceived the law; that the court, in the first 
 case, not only excluded testimony which ought to have 
 been admitted, but rendered a judgment not warranted 
 by laAV, and, in both cases, misdirected the jury. If this 
 be so, — if the court has mistaken the law, or the jury 
 found contrary to the facts, — Mr. Barker ought to have 
 relief. It is always the duty of the court to give to the 
 accused in a criminal case every legal advantage. The 
 maxim that it is better for ten guilty men to escape than 
 that one innocent man should suffer, has its foundation 
 in the unchangeable principles of equity as well as of 
 humanity. If, therefore, the jury have found verdicts 
 not justified by the proof, if the court has rejected any 
 evidence which ought to have been admitted, if the court 
 misdirected to the prejudice of the defendant, or has 
 rendered a judgment not warranted by law, the mistake 
 of the court, or the misfinding of the jury, ought to be 
 corrected. Every impartial tribunal, and every upright 
 judge, can have no vfish but to do justice according to 
 law. If an error be committed, especially if against 
 the accused, let it be set right. 
 
 "'To enable the defendant to avail himself of any 
 error committed by the court or jury, the court will 
 now proceed to state all the material facts and circum- 
 stances which arose in each case, and all the material 
 principles of law which were ruled by the court. If 
 any thing essential to a just decision of either of the 
 cases shall be omitted by the court, the defendant may 
 supply it by afiidavit, which will be certified by this 
 court, so far forth as it may be correct.^ 
 
 " And your memorialist further represents that the 
 said Richard Riker denied your memorialist and his 
 
LIFE OF JACOB BARKER. 223 
 
 counsel all participation in making up the said state- 
 ment, and would not allow either of them to see it until 
 he should have pronounced it in court, where he read it 
 from the bench, and handed it immediately to a reporter 
 for the newspapers for publication. That your memo- 
 rialist protested against such a course, and entreated 
 the said Richard Riker not to poison the public mind with 
 a jDublication fraught with errors and falsehoods, until 
 he should have an opportunity of having it corrected, 
 agreeable to the promise contained in that very state- 
 ment. That all the efforts of your memorialist were 
 unavailing, and the said reporter took away from court 
 the said case thus read. That, it not appearing in the 
 newspapers for some days, your memorialist inquired 
 the cause, and learned that the engagements of the 
 editor, to whom it had been handed, with the business 
 of a theological convention then in session, had pre- 
 vented its publication for a few days. That your memo- 
 rialist availed himself of this delay by attempting to 
 procure a sight of the said statement for the purpose 
 of correction before it should be published, his then 
 critical situation rendering it particularly desirable that 
 no further excitement should be created in the public 
 mind against him ; but his efforts were, as before, un- 
 availing, and the said editor assured him that he was 
 instructed not to let any one see the said statement, and 
 particularly not to let your memorialist see it. That 
 after the publication took place your memorialist availed 
 himself of the apparent fairness of the promise therein 
 contained, and presented his own affidavit and sundry 
 other affidavits to the said Richard Riker, pointing out 
 his errors and omissions, particularly detailing the tes- 
 timony of Samuel H. Macy and George W. Strong, 
 
224 LIFE OF JACOB BAEKER. 
 
 that of Mr. Macy having, as aforesaid, been erroneously 
 stated, and that of Mr. Strong, the most material wit- 
 ness in the cause, entirely omitted; whereupon the said 
 Riker certified to the accuracy of the statement of your 
 memorialist, as to the testimony of the said George W. 
 Strong, recapitulating it, and as to that of the said 
 Samuel H. Macy, he remarked in the words following : 
 
 " 'Mr. Macy swore, as stated by Mr. Barker, that, by 
 this certificate, it will be seen that the Supreme Court 
 could not know to what the said Samuel H. Macy had 
 testified, without the said afiidavit.' That, notwithstand- 
 ing, the said Richard Riker, unknown to your memo- 
 rialist, wrote a private letter to the judges of the said 
 Supreme Court, objecting to their receiving the affidavits, 
 and consequently requesting in substance that, if they 
 should pass judgment at all, they should pass it on the 
 false statement, which leads to the conclusion that the 
 said Richard Riker intentionally denied your memorialist 
 a fair trial; that he intentionally made a false state- 
 ment of the case; that, being conscious thereof, he 
 inserted the deceptive clause, promising to correct his 
 errors, if there were any, and that he never meant to 
 give your memorialist an opportunity to have the case 
 reviewed. The above-mentioned letter was in the fol- 
 lowing words : — 
 
 '''court of general sessions. 
 
 " 'Jacob Barker ad. The People. — Libel on Richard 
 
 Hatfield. 
 " ' The Same ad. The Same. — Libel on Abraham B. Mead. 
 
 "'In the above causes, the defendant requested the 
 recorder to report to the Supreme Court the substance 
 of the evidence and the decision of the court upon 
 
LIFE OF JACOB BAP.KER. 225 
 
 the questions of law which arose upon the trials. Mr. 
 Barker has lately submitted his own deposition^ and the 
 de]oosition of some of the ju7'ors to the recorder, which 
 are marked " submitted.'' It is proper that the Supreme 
 Court should be apprized that it is 7iot intended by the 
 court below, or by the recorder, to admit either the ac- 
 curacy of those depositions, or the propriety of such 
 depositions being received. 
 
 "' Respectfully submitted, R. Riker. 
 
 '' 'To the Hon. the Judges of the Supreme Court. 
 
 " ' New York, Maj 21, 1827.' 
 
 "And your memorialist further represents that the 
 judges of the Supreme Court, aware of their duty not 
 to permit any side bar influence, and too much the 
 lovers of justice to allow any secret ex lyarte proceed- 
 ings, read the above letter in open court, and declared 
 that they considered it equivalent to a request that they 
 should not consider the case, as they never gave advice 
 at the instance of the parties, and only when requested 
 by the court below. That, on hearing the said very ex- 
 traordinary letter read, your memorialist immediately 
 waited on the said Richard Riker, and demanded a cer- 
 tificate that the court below did request the Supreme 
 Court to consider the case, wdiich he gave in the words 
 following : — 
 
 "'court of general sessions. 
 Jacob Barker "^ The same 
 
 ad. > ad. 
 
 The People. J The same 
 
 " 'It w^as the desire of the court of sessions, and of 
 the recorder, that the report and opinion of the pre- 
 siding judge should be reviewed by the Supreme Court; 
 
226 LIFE or JACOB BARKER. 
 
 but we did not think that the affidavits ought to be 
 received. 
 
 ^' 'Respectfully submitted, 
 
 " ' R. RiKER, Recorder. 
 
 " ' To the Hon. the Judges of the Supreme Court. 
 
 "'May 25, 1827.' 
 
 " And your memorialist further represents that the 
 Supreme Court continued to refuse to consider the case, 
 not on account of any thing said in the above letters, 
 but 'because,' as the chief-justice remarked, 'the court 
 below had proceeded to pass sentence before the case 
 could be got before them, which was unprecedented in 
 judicial proceedings, it being the universal practice (in 
 consulting that court) to defer sentence until the opinion 
 of the Supreme Court was known.' That Judge Wood- 
 worth added, 'And this, too, when the counsel for the 
 party only suggested that there was good reason to sup- 
 pose an error had been committed by the judge who 
 tried the cause ; and in a case where that judge had pro- 
 mised to give the party an opportunity to have the case 
 reviewed by the Supreme Court, the obligation to have 
 suspended further proceedings was much greater ; yet the 
 court of sessions proceed to fine Mr. Barker, and the 
 money has been paid and passed beyond the control of 
 this court: therefore, if it should interfere and attempt 
 to reverse the proceedings below, such reversal would 
 be unavailing;' and that Judge Sutherland said, 'This 
 court cannot consent to take any proceedings which, 
 when taken, would be a nullity.' 
 
 "And your memorialist further states that, on the 
 aforesaid trials for libel, the said Richard Riker, by 
 charging the jury that malice was not necessary to sus- 
 
LIFE OF JACOB BAEKER. 227 
 
 tain an indictment for a libel, procured the conviction of 
 your memorialist. That he, in substance, denied in the 
 "written statement that he had so charged, and, as your 
 memorialist is constrained to believe, for the purpose of 
 depriving your memorialist of the benefit of urging the 
 absence of malice, and for the same purpose he omitted 
 the testimony of George W. Strong, as before stated; 
 that this was the most material point in the case, and on 
 which your memorialist was anxious to obtain the opi- 
 nion of the higher courts, as well from a desire to pre- 
 serve the liberty of the press, as to protect his own 
 rights. And your memorialist, to show the pointed 
 manner in which the said Richard Riker laid down the 
 law in this respect, and the effect it had on the jury, 
 begs leave to refer to the following affidavits : — 
 
 " ' Court of G-eneral Sessions of the Peace in and for tlie 
 city and county of New York. 
 " 'Jacob Barker 
 ads. 
 The People. 
 
 " ' Edmund Haviland, being "duly affirmed, saith that 
 he was one of the late jury which convicted Jacob Barker 
 of publishing a libel on Richard Hatfield ; that after the 
 recorder had delivered his charge to the jury, and when 
 they were about retiring to deliberate on this case, this 
 affirmant inquired of the recorder, ' Must we convict Jacob 
 Barker although we should think there was no malice ?' 
 To which the recorder replied, 'Most certainly.' This 
 affirmant further states, but for this he should not have 
 agreed to the verdict. Edmund Haviland. 
 
 Affirmed before me, this 17th day of May, 1827. 
 
 a ( 
 
 W. Seaman, Commissioner.' 
 
 
228 LIFE OF JACOB BARKER. 
 
 " ' Qourt of General Sessions of the Peace in and for the 
 city and county of New York. 
 "' Jacob Barker 
 ads. 
 The People. 
 
 " 'William Galloway, being duly sworn, testifieth and 
 saith tliat he was one of the jury which tried Jacob 
 Barker for publishing an alleged libel on Richard Hat- 
 field, and that the recorder stated the law to the jury in 
 such a manner as for it to appear that malice was not 
 necessary to constitute a libel, and that after the jury 
 retired several of them stated to this deponent that 
 they did not believe the defendant was influenced by 
 any malicious intention, but that, as the recorder had 
 charged that that made no difference, they felt it to be 
 their duty to agree to a verdict of guilty. This de- 
 ponent further testifies that he does not now believOj 
 and never did believe, that Jacob Barker either wTote 
 or published the book in question with any malicious 
 intention. 
 
 '"William Galloway. 
 " ' Sworn this 18th da'y of May, 1827, before me. 
 "'James Oswald Grim, 
 
 " ' Commissioner to take the acknowledgment of deeds, &c.' 
 
 *' ' Court of Gfeneral Sessions of the Peace in and for the 
 city of New York. 
 
 '"Jacob Barker 
 ads. 
 The People. 
 
 "'Samuel Candler, being duly sworn, testifieth and 
 saith that he was one of the jury which tried Jacob 
 Barker for publishing an alleged libel on Richard Hat- 
 
LIFE OF JACOB BARKER. 229 
 
 field, and that the recorder stated the law to the jury 
 in such a manner as for it to appear to this deponent 
 that, in the opinion of the recorder, malice was not 
 necessary to constitute a libel ; and after the jury re- 
 tired several of them stated, in the presence of this 
 deponent, that they did not believe the defendant was 
 influenced by any malicious intention, and that they 
 believed he had good cause for alarm; that this depo- 
 nent was of that opinion, and he believes all the jury 
 
 were of that opinion. 
 
 ^"Samuel Candler. 
 
 '''Sworn this 18th day of May, 1827, before me. 
 
 "'Benj. Douglas Silliman, 
 
 " ' Commissioner, &c/ 
 
 "And your memorialist further represents that, in 
 the opinion of your memorialist, the said Richard R-iker 
 was not actuated in his aforesaid conduct by any vin- 
 dictive feelings towards your memorialist, but that he 
 was under the influence of fear that his own conduct 
 in relation to the aforesaid combination or conspiracy 
 might be made a subject of inquiry, and that to pre- 
 vent such inquiry he lent himself and his office to the 
 hostile feelings of others. 
 
 "And your memorialist further shows that the said 
 Richard Riker was examined as a witness before Thomas 
 Bolton, Esquire, a master in chancery, in the month of 
 November last, in a suit in which your memorialist was 
 a party, relating to the aff'airs of the aforesaid institu- 
 tions, when his testimony was either wanting in candor 
 and veracity, or his recollection had so totally failed him 
 as to incapacitate him for the performance of the duties of 
 recorder of the said city. That he avowed himself the 
 counsel of Matthew Reed, the late president of the said 
 
 20 
 
230 LIFE OF JACOB BARKER. 
 
 Tradesmen's Bank, who was one of tlie aldermen of tlie 
 said city, and, of course, with the said Richard Riker, 
 a judge of the court of sessions in the said city, when 
 the aforesaid combination or conspiracy was formed, 
 and who was indicted for the same, and liable to be 
 tried in the said court of Avhich the said Richard Riker 
 was presiding judge ; that the said Richard Riker urged 
 before the said master in chancery his being such 
 counsel as a reason why he was not then bound to pro- 
 duce said paper, which paper would have led to the 
 necessary testimony to establish the innocence of a 
 person whom he knew to have been falsely accused. 
 
 "And your memorialist respectfully insists that in 
 addition to the judicial errors and frauds committed by 
 the said Richard Riker, as hereinbefore described, his 
 conduct, as guardian of the interests of the bill-holders, 
 stockholders, and depositors of the Tradesmen's Bank, 
 was wanting in fidelity, and calculated to sacrifice the 
 interests of those from whom he had accepted the trust ; 
 that his motive for such conduct was individual gain, 
 and that if he was faithless in his place as trustee, in 
 that case he certainly is not fit to be the guardian of 
 the public chest, and much less of the public morals. 
 
 "And your memorialist respectfully requests that 
 your Excellency will recommend to the honorable the 
 Senate the removal of the said Richard Riker from the 
 ofiice of recorder of the city of New York, for reasons 
 growing out of his conduct hereinbefore stated. And 
 if proof should be deemed necessary before such re- 
 commendation takes place, your memorialist respectfully 
 asks leave to produce testimony, and pledges himself 
 substantially to prove the facts hereinbefore stated, 
 whenever an opportunity shall be afforded him to do so 
 
LIFE OF JACOB BARKER. 231 
 
 "Very respectfully, your Excellency's obedient ser- 
 vant, 
 
 "Jacob Barker. 
 
 "New York, January 23, 1829." 
 
 The Governor so far sustained tlie petition as to 
 transmit a copy to the recorder, requiring an answer to 
 the several charges. Before this answer was received, 
 Mr. Van Buren accepted from General Jackson the 
 appointment of Secretary of State, vacating the execu- 
 tive chair, leaving it to be filled by the Lieutenant- 
 Governor, who received from the recorder his vindica- 
 tion, and let him off mainly on his own averment that 
 he meant no wrong by the proceedings of which Mr. 
 Barker complained. 
 
 CHAPTER XYI. 
 
 APPLICATIOX OF MARK SPEXCER AND OTHERS TO THE 
 SUPREME COURT FOR A CHANGE OF VENIRE. 
 
 Mr. Barker addressed the court thus on the venire: — 
 "Believing, as I do, that I cannot get a fair trial 
 except I be tried by men capable of understanding the 
 merits of the case and the law, and the public prose- 
 cutor having promised me a fair trial, I will now test his 
 sincerity. It is a conceded fact that the moneyed interests 
 of the city have considered my operations for the last 
 ten years as adverse to their interests, and have viewed 
 me as competing with them for the same boon. Hence 
 they feel a degree of opposition or hostility to me. Yet 
 
232 LIFE OF JACOB BAEKER. 
 
 I am willing to be tried bj them. If they are pre- 
 judiced, I am not afraid of it. There is too much 
 integrity and intelligence among them for me to fear 
 any danger of my cause in their hands ; and I now pro- 
 pose to be immediately tried at the bar of this com*t, 
 and by a struck jury; that the panel jury be taken 
 from the presidents of all the banks in this city, sixteen 
 in number, the surplusage of four to be stricken off by 
 the court after hearing argument. Let the public prose- 
 cutor agree to this, and I eno-aa-e not to challeno-e a 
 single man, and not to appeal if the verdict should be 
 against me. If objections should be made on account 
 of the smallness of such a general panel, let the cashiers 
 of all the banks be added, which will make thirty-two; 
 and if the general panel should still be considered too 
 small, let the directors of all the banks be added, which 
 will amount to two or three hundred and will make the 
 panel unusually large. The power of the court thus to 
 form a jury, with the consent of both parties, cannot, I 
 think, be disputed; but, if I am mistaken, there are 
 many other ways in which they can direct a struck jury ; 
 but if I cannot have an immediate trial at the bar of 
 this court, I will consent to the records being sent to a 
 distant county for the trial of the others, and as soon as 
 their trial is over I shall apply to this court to bring 
 me back to New York for trial, as I can never consent 
 to be tried elsewhere than in New York, unless it should 
 become necessary for me to do so to procure justice for 
 the other defendants. I have grown up with the city, 
 to its inhabitants I am indebted for the little considera- 
 tion I have obtained, and if they think me unworthy of 
 what they have freely given, let them take it back, let 
 them deprive me of it at pleasure, let them degrade and 
 
LIFE OF JACOB BARKER. 238 
 
 despise me ; but I will not flj from them. I will not 
 attempt to seek protection from their frowns at the hands 
 of distant jurors. Be public opinion favorable or un- 
 favorable, I am anxious to meet it. Here let me rise or 
 fall. I cannot and will not quit my home, — a home of 
 which I am proud. I know my fellow-citizens are just 
 and generous, and, although they may be deceived for a 
 season, truth will ultimately prevail. There are many 
 reasons why this cause should not go back to the court of 
 oyer and terminer : they are to be found in the manner 
 in w^hich that court is constituted, principally of lay- 
 men, totally destitute of law-knowledge or pretensions, 
 thereto, and it is composed of the same or nearly the 
 same members as constitute the court of sessions, Vhere 
 the two libel causes were tried; and these causes are a 
 branch of the conspiracy cause, all one great conspiracy 
 for the destruction of Jacob Barker. The strange posi- 
 tions assumed by the judge who tried the aforesaid causes 
 are sufficiently within the knowledge of this court to 
 remove all necessity for commenting on them here, and, 
 I trust, will furnish sufficient reason for not placing my 
 cause again into their hands. Nearly one-half of the mem- 
 bers have sat on one or the other of the causes, and two 
 of the members are by law ex-officio directors of the 
 United States Lombard Company, one of the institu- 
 tions alleged to have been defrauded. William P. Bath- 
 bone was a member of that court ; and you have the 
 recorder's certificate that the district attorney had tes- 
 tified that Bathbone furnished the papers on which the 
 public prosecutor endeavored to procure my conviction 
 of a crime, of which crime Bathbone knew me to be 
 innocent when he gave the papers. Another member 
 of that court was also indicted, and many others were 
 
 20* 
 
234 LIFE OF JACOB BARKER. 
 
 found, by the testimony given on tlie trials, to liave been 
 implicated in the transactions. The court of oyer and 
 terminer severely reprimanded me, and fined me one 
 hundred dollars for having told a witness of a mistake 
 he had made in. his testimony, in which mistake I de- 
 tected him while on the stand. At the same time they 
 imposed this fine, the presiding judge declared that the 
 court were perfectly satisfied that I meant no disrespect 
 to them, and the court of oyer and terminer have 
 fined me twice, two hundred and fifty dollars each 
 time, for having published the most candid and sincere 
 statement of my cause of complaint which I had the 
 power of writing, — a publication totally void of malice, 
 — and in one instance for the mere publication of a pe- 
 tition presented to the court by permission previously 
 obtained, and which petition was received and enter- 
 tained by the said court, and this court know the obsta- 
 cles that have been thrown in the way of my getting 
 those decisions reviewed here. Under such circum- 
 stances, can it be considered proper to send me back to 
 be tried again by those men ? And although none of the 
 members thus circumstanced will sit on a new trial, if it 
 should be sent back to that court, yet their constant 
 intercourse with the other members on political and offi- 
 cial subjects gives them an imperceptible influence, which 
 might prove very prejudicial to me, without the members 
 who should try the cause intending to do the least 
 wrong or being aware of such influence. I will now 
 proceed to suggest the reasons for my asking a separate 
 trial, and to be allowed to rise or fall by my own merits. 
 They are, that the case is so complicated that the human 
 mind is scarcely capable of comprehending it in its pre- 
 sent form, and so much more sim^ple when separated. 
 
LIFE OF JACOB BARKER. 235 
 
 as manifested in the separate trial of General Swift, 
 which occupied but little more than one day; that the 
 grand jurors who found many of the indictments refused 
 to couple me with the others; the efforts to get Mr. 
 Oakley to join in the crusade against me, which he 
 indignantly rejected; the conduct of Rathbone, in con- 
 nection with whom I am still liable to be tried, and that 
 three of the counsel for some of the other defendants 
 assailed me on the last trial. Their attacks were the 
 most violent, unfounded, unprovoked, and unmerited 
 ever made in a court of justice, and which the interest 
 of their clients in no wise called for. So unwarrantable 
 and improper was their conduct, that it appeared to 
 have excited the sympathy of the public prosecutor, in- 
 somuch that he rose to call one of them to order, 
 strongly reprobating the course they were pursuing. 
 He would not allow them to usurp his franchise. That 
 all the persons presented in the same indictment with 
 me were directors or officers of one or more of the insti- 
 tutions alleged to have been defrauded, except myself, 
 and that I occupied no such station in either of the com- 
 panies. The improper attempts made on the court of 
 sessions to influence their judgment against me, the 
 names and circumstances having been withheld from the 
 public by that court, the facts disclosed by Mr. Ray- 
 mond's affidavit produced by the district attorney, from 
 which it is fairly to be inferred that all the artificial ex- 
 citement that has been produced has been levelled at 
 me ; that the others are nowise connected with me, nor 
 I with them;- and, finally, that the court of oyer and ter- 
 miner refused me a separate trial, but granted it to 
 General Swift. 
 
 " I have throughout this business avoided doing or 
 
236 LIFE OF JACOB BARKER. 
 
 saying any thing which could militate against the other 
 defendants, and I hope that what I am here called upon 
 to say will not have that eiFect; but I am constrained 
 to dissent from the opinion entertained by them, that 
 there is a widely-extended prejudice. 
 
 " Grreat pains have been taken, by the conspirators 
 for my destruction, to give every thing that appearance ; 
 but it is all fraud, all trick, all device, — the result of 
 measures got up to destroy me. Men were sent to the 
 hall to make an excitement, as they were sent to the 
 judges of the court of sessions to influence their de- 
 cision. The gentleman who has made the deposition 
 that he thinks a fair trial cannot be had in New York is 
 "doubtless sincere in what he has stated, and has not been, 
 to my knowledge, concerned in the conduct of which I 
 complain; and there have been so many false lights ex- 
 hibited that it would be strange if he did not think there 
 was a widely-extended prejudice. The repeated de- 
 cisions of the jurors are relied upon as evidence of this 
 prejudice. Their decisions amount to nothing. The 
 manner of drawing and empanelling the jury, who 
 convicted of conspiracy without examining the papers, 
 is known to the court ; and this court have before them the 
 depositions of three of the jurors who convicted for libel ; 
 one of them on his oath says that he does not now and 
 never did think Jacob Barker had any malicious inten- 
 tion in the publication, and that he had good reason 
 for alarm, and that in substance he, the juror, did not 
 know the law, and therefore looked up to the court for 
 it; and the others also testify to my freedom from 
 offence ; and this honorable court will know, when they 
 examine the case, how egregiously the recorder mistook 
 the law when he charged the jury. The jury are not 
 
LIFE OE JACOB BARKER. 237 
 
 to blame; from the very nature of the case they could 
 not know the law, and, like most other jurors, occupied 
 in daily pursuits to obtain for themselves and families 
 an honest livelihood by hard labor, they have no leisure 
 to study the law; and the law-makers, aware of this, 
 place a court over them, to whom it is the duty of all 
 jurors to look up for law, light, and truth whenever 
 they are in doubt or darkness. I do not believe there 
 was a particle of prejudice or unfriendly feeling towards 
 Jacob Barker in the breast of a single juror who sat on 
 either of the libel cases ; and, indeed, one of them swore, 
 as your honors will see by the affidavit in your posses- 
 sion, that it was a general conversation among the 
 jury, after they retired to consider the case, that Mr. 
 Barker had not any malicious intention, and that he 
 had good cause for alarm ; and that juror further swore 
 that he believed every one of the jury was of that opi- 
 nion; and, although I have produced depositions from 
 but three, I believe they would all have given the same 
 testimony if they had been applied to : three were 
 deemed sufficient, and the first three applied to gave the 
 evidence freely. This testimony admonishes all of the 
 necessity of having an unprejudiced, impartial court 
 that knows the Law. I am now in the hands of such 
 a court, and I trust they will not part with my case 
 leaving any uncertainty about my having a fair trial. 
 They have a full view of the frightful state of things 
 w^hich surround me, and I am sure this court never will 
 expose to chance the right of a citizen to having a fair 
 trial, and no trial can be considered fair except it be by 
 men competent to understand the case. As to prejudice, 
 the gentlemen have confounded terms ; they construe the 
 opinions of parties directly or indirectly interested into 
 
238 LIFE OF JACOB BARKER. 
 
 prejudice, and because the parties to this business are 
 vastly numerous they think it is public prejudice. If 
 the public, who were not interested, entertained these 
 adverse opinions, I should think there was public preju- 
 dice. I know they do not, and that a different opinion 
 prevails. The numerous companies that either failed 
 or lost their funds, the numerous stockholders in those 
 companies, and the numerous creditors of those who 
 were made insolvent by their losses by the failures of 
 the companies, embraced many thousand persons, and 
 they may all be considered interested in those prosecu- 
 tions: hence the vast odds against the defendants. So 
 many thousands on one side against a half-dozen indivi- 
 duals on the other is a frightful difference ; but it is not 
 prejudice. So great was the prospect of gain in the pur- 
 chase- of bonds, that almost every man, woman, and child 
 in the city, who had an idle hundred dollars, was tempted 
 to go in for a share. They could not resist the prospect 
 of getting sixty or one hundred per cent, for their money ; 
 and when the hopes of one and all were swept into the 
 common vortex, mortified and disappointed in not realiz- 
 ing the golden harvest they had expected, they thought 
 of nothing but their gold, their lost gold, and, in place 
 of ascribing their disappointment to their own impru- 
 dence and their own inordinate appetites for gain, for 
 usurious interest, they were, without a particle of evi- 
 dence, easily led astray, and joined in the cry of fraud 
 against the innocent, got up by those who wish to hide 
 their own guilt by diverting public attention therefrom. 
 And when the trick is discovered, we are told it is pre- 
 judice, public prejudice, that has convicted the innocent. 
 It is no such thing: it was the frauds, the falsehoods, 
 the devices, of the wicked. 
 
LIFE OF JACOB B/VRKER. 239 
 
 *'I will not, at this late hour, trespass further on the 
 time of the court ; but I must be allowed to press on 
 them the importance of my case. It is for reputation I 
 am contending; it is not to avoid the penalties of the 
 law. I care not for them, further than my character is 
 concerned. I was in hopes, before this argument had come 
 on, that my counsel would have been heard in the libel 
 cases. They would have told the court that to get back 
 the $500 taken from me in those causes was the least of 
 all possible inducements for the zeal manifested. It was 
 to remove from the record the stain. Yf hen that argu- 
 ment shall be heard, there will be such a development of 
 facts as will make every heart shudder at the enormities 
 committed on Jacob Barker; but, as the court are in 
 possession of documents sufficient to establish how just 
 is his cause of complaint, I will only repeat the appall- 
 ing fact that the jury whose verdict was to consign him 
 and his unoffending family to misery did not examine 
 the papers proved in the case, and on which he relied for 
 his entire exculpation. I can never believe that a 
 verdict given under such circumstances will be con- 
 sidered of the least validity or evidence of guilt : yet it 
 furnishes an additional reason why the case should be 
 tried by men who understand financial matters, and this 
 can only be attained by granting a struck jury, such a 
 jury as will be capable of understanding the true merits 
 of the case, in whom the public have implicit confidence, 
 and whose verdict, if favorable, will silence the tongue 
 of the slanderer. I beseech the court, as they value the 
 cause of truth and justice, not to send me for trial 
 where the jury, from the very nature of the case and of 
 their occupation, will have to look to the court for the 
 law, — to look for law where there is no law. What I ask 
 
240 LIFE OP JACOB BAEKER. 
 
 is, that the court and jury who are to try me be capable 
 of deciding whether I am guilty or innocent. I know 
 myself to be innocent; and all T ask is an opportunity 
 to demonstrate such innocence." 
 
 The Supreme Court did not sustain this application. 
 
 CHAPTER XVII. 
 
 THIRD TRIAL. 
 
 On this trial, Mr. Barker was defended by Chief- 
 Justice Spencer, Thomas Addis Emmett, and George 
 Grriffin, Esqs. From the speeches of the tAvo former the 
 following extracts are taken : — 
 
 CHIEF-JUSTICE AMBROSE SPENCER'S SPEECH. 
 
 " Gentlemen of the jury, it may perhaps surprise 
 you that I should appear in this cause, — that I should 
 now be addressing you in behalf of this defendant. 
 Gentlemen, it is not from pecuniary motives : no reward 
 in the power of Mr. Barker to bestow could have in- 
 duced me to lend my aid to his cause. I became ac- 
 quainted with his case from having been engaged in 
 the argument on the case before alluded to, and I came 
 here under a perfect conviction, from that knowledge, of 
 Mr. Barker's innocence. I have known Mr. Barker for the 
 last twenty years. I know that there have been reports 
 and prejudices concerning him; the voice of calumny 
 has been raised against his character. Yet, gentlemen, 
 believe it not, it strikes at all, and I here proclaim, and 
 were I trumpet-tongued I would cry it aloud to the 
 
LIFE OF JACOB BARKER. 241 
 
 world, that I believe him an honest, an honorable, and a 
 high-minded man. Gentlemen, we have much to com- 
 plain of in this case. 
 
 ''Mr. Barker is indicted of a conspiracy, with intent 
 to defraud the Morris Canal and other companies, eight 
 in the whole. To prove this conspiracy a number of 
 transactions have been offered in evidence before you. 
 The district attorney does not rely upon the overt act ; 
 but he has spread out these transactions, and now means 
 to urge them as proofs of the conspiracy. We come here 
 hoodwinked; we cannot tell what use the learned gen- 
 tleman intends to make of these transactions. We are 
 groping in the dark. Transactions innocent in them- 
 selves are to be coupled together for our destruction. 
 It is of this we complain, this blind groping. The law 
 on this subject is an anomaly. There is no other offence 
 in the whole catalogue of crimes where a defendant 
 cannot fully and clearly understand the defence he is to 
 make. In this we are totally in the dark. The mind 
 of man can scarcely conceive to what extent it may be 
 carried. It was formerly customary in the country 
 from which we derive our laws to indict men for high 
 treason without setting forth the overt acts ; and many 
 illustrious men have been brought to the block without 
 knowing until the hour of trial the offence for which 
 they were to suffer. This law, in the wisdom of Eng- 
 lish jurisprudence, was altered and amended so as to 
 require the definite crime to be set forth. The law of con- 
 spiracy still exists as it did before. Yet so sensible were 
 our legislators of the necessity of a change in this re- 
 spect, that the Senate of our State, at their last session, 
 passed a bill to that effect, requiring the overt act to be 
 Bet forth in trials for conspiracy; and this bill is still 
 
 21 
 
242 LIFE OF JACOB BAEKER. 
 
 pending before the other house. I mention this, gentle- 
 men, that you may perceive the peculiar hardship of 
 our case. I suspect, gentlemen, you will find the task 
 imposed on you one of great difficulty; and if the ques- 
 tion were now put to you to say what particular acts have 
 been proved against Mr. Barker, you would find it impos- 
 sible to point them out. There has been an accumulation 
 of evidence, a throwing in of testimony, for what pur- 
 pose I do not know, though the district attorney says 
 we shall know by-and-by. So that you may perceive 
 we are still groping in the dark, even as to the use to be 
 made of this testimony. 
 
 " Gentlemen, you may suppose me bold, but, believing 
 it as I do, I dare utter it, that when you come to an ex- 
 amination of the testimony in this cause, you will not 
 only not find a single particle of evidence of guilt, but, 
 so far from it, you will not find cause for suspicion 
 against my client. The gentlemen may put it down : I 
 have said it, and I will vindicate it. I have carefully 
 listened to the testimony that has been given, and be- 
 stowed upon the case all the thought of which I am 
 capable; and if all my capacity to understand and to 
 discriminate between right and wrong has not forsaken 
 me, I am not mistaken when I say that the testimony 
 which has been given makes my client's conduct praise- 
 worthy throughout. This I say conscientiously, and I 
 wish the world so to understand it." 
 
LIFE OF JACOB BARKER. 243 
 
 CHAPTER XVIII. 
 
 THE SPEECH OF THOMAS ADDIS EMMETT, ESQ. 
 
 * Gentlemen of the jury, I most sincerely concur in 
 the opinion expressed by my learned friend, who has so 
 emphatically told you that our client stood before you, 
 after near three weeks' investigation, untouched by the 
 testimony. Nothing can be more manifest than his 
 freedom from offence. It is in proof that his every act 
 throughout this whole business has been not only blame- 
 less, but praiseworthy. This I declare to be my sincere 
 opinion, and I felt peculiar pleasure in hearing Judge 
 Spencer put forth corresponding sentiments in a manner 
 that convinced all of his sincerity. His course of read- 
 ing and thinking, his judicial duties, his habit of view- 
 ing both sides of all subjects brought before him, have 
 particularly qualified him to form a correct opinion of 
 this very complicated case: therefore it is to me a 
 source of much gratification to know that he thinks, with 
 me, that there is not even a cause of suspicion against 
 my client; and yet we find a most numerous array of 
 counsel brought here to endeavor to procure his convic- 
 tion. It naturally occurs, by whom are they employed? 
 They have too much reputation, and their time is too 
 valuable, for them to come here and waste a month in 
 pursuit of fame only. They must be paid by somebody; 
 and I demand to know who that somebody is. I ask, 
 Who pays them ? To this question I demand an answer. 
 
244 LIFE OF JACOB BARKER. 
 
 My client is entitled to the information. Every accused 
 man is entitled to know Avho his prosecutor is. He has 
 a right to show to the jury, as matter of defence, the 
 motives, the malice, the character and conduct of those 
 who instigate or carry on proceedings against him. 
 He has a right to proceed against them for a malicious 
 prosecution, and on that account to know who they are. 
 It is not a sufficient answer to shelter them under the 
 assertion that the people prosecute. The king prose- 
 cutes in England; but that does not deprive the subject 
 of the right to know who maintains the prosecution. 
 The district attorney says he employs them ; but the 
 question still recurs. Who pays them ? The Governor has 
 not ordered their employment. The corporation have not 
 done it. No order for that purpose appears on their 
 minutes, and they have no right to interfere or divert the 
 city funds for that purpose. The legislature have not 
 done it. I ask, then, Who has, and studiously keeps him- 
 self concealed ? I say again to the public prosecutor, 
 Who pays and hides himself? Mr. Barker has always 
 charged this prosecution to be a wicked conspiracy 
 s to destroy him ; and if the public prosecutor will tell 
 I who pays and keeps concealed, it will give a clue to this 
 foul conspiracy. Let us know who are secretly devoting 
 their thousands to destroy an innocent man, and we shall 
 have no difficulty in developing the whole plot. 
 
 "The peculiar qualities of my client's mind and dis- 
 position have rendered it utterly impossible for his 
 counsel to keep him within those professional rules 
 which would have governed them had the case been left 
 entirely to them ; but you have witnessed that he would 
 not be regulated by our advice : he has provoked the. ire 
 of our opponents, and they have promised to retaliate 
 
LIFE OF JACOB BARKER. 245 
 
 to the extent of their ability. 'Let them do it,' says 
 my client. Although we do not approve of his course, 
 we are persuaded that you see sufficient provocation 
 for it. His outraged feelings at the enormity of these 
 proceedings, at the tricks and devices that have been 
 resorted to to procure his conviction, the constant at- 
 tempts to misrepresent all his conduct, and to infer 
 fraud from the most praiseworthy and disinterested of 
 his acts, are enough to fill a mind less acute, less sensi- 
 tive than his, with indignation. Boiling over as he is 
 under a sense of the wrongs done him, he seems to have 
 thrown off prudential restraint, and to have had more 
 pleasure in rebuking the gentlemen who are pursuing 
 this course towards him than in any other branch of his 
 defence. I admire the spirit that has prompted this 
 bold and manly course, while I regret its want of pru- 
 
 ' , dence. Yet there is, nevertheless, an advantage in it. 
 
 ] Such a course is utterly inconsistent with guilt. None 
 but honorable, honest, and high-minded feelings could 
 have enabled him to pursue it and carry it through. 
 Consider this well; give to it the influence to which it 
 is entitled, and you will say that the whole nature of 
 man has been changed in the formation of Mr. Barker, 
 or that he is an innocent man. It has been thought to 
 procure his conviction chiefly on the testimony of David 
 Leavitt. He has stated that Mr. Barker told him, about 
 four days after the failure of the Hudson Insurance 
 Company, (which he fixed to be on the 8th of July,) and 
 before the failure of the Life and Fire Insurance Com- 
 pany, that he had the control of the notes deposited in 
 the Fulton Bank for collection by that company; and 
 that Mr. Barker told him, on Saturday, the 15th of 
 July, three days before the failure, that it was question- 
 
 21* 
 
246 LIFE OF JACOB BARKER. 
 
 able whether the Life and Fire could sustain itself or 
 not. Had all this been so, there was no harm in it. 
 Barker had the right to have the control over the 
 property of any individual or corporate company that 
 thought proper to give it to him and owed him largely; 
 and in this case, from the advances proved by the prose- 
 cution to have been made by him, there would have been 
 a peculiar fitness in their having given him the control 
 of those notes ; and, as to his telling Leavitt that it was 
 doubtful if the Life and Fire would be enabled to sus- 
 tain itself, what harm was there in that? The bank 
 was itself, at that very time, hard pressed; Barker 
 deeply interested and actively engaged in sustaining it; 
 the Hudson Company's failure that day, overdrawn 
 more than one hundred thousand dollars, without secu- 
 rity, to the Fulton Bank ; a great excitement about the 
 Tradesmen's Bank ; all confidence lost in the bond com- 
 panies; the Life and Fire having a great issue; its 
 dealers failing daily: was there not cause enough to 
 induce a prudent man to give a word of caution to the 
 presiding officer of a bank in which he himself was 
 deeply interested and in which that company kept their 
 account ? 
 
 " With this view of the subject, I should not have 
 attempted to contradict the witness, however incorrect 
 the testimony he gave ; but my client, knowing it to be 
 untrue, and persuaded that it was contrived to injure 
 him, decided instantly to detect the misstatements ; and 
 he succeeded to his heart's content. 
 
 " The point of the evidence was to make out that Mr. 
 Barker had the control of the efi"ects of the Life and 
 Fire before the failure of the company, when the power 
 of attorney was given ; to make out Barker's knowledge 
 
LIFE OF JACOB BARKER. 247 
 
 that the company was bad, and also to breed a further 
 quarrel between Barker and the Life and Eire gentle- 
 men, by making them believe that Barker had not acted 
 in good faith with them. Had the district attorney 
 given credit to this improbable tale of his own witness, 
 would he not have asked the clerks of the Life and Fire 
 if Mr. Barker had any such control ? if he ever 
 attempted to exercise any? if he ever spoke of those 
 notes, ever looked at their bank-book, or asked for 
 authority to draw them ? Had he asked these questions 
 he would have been told, 'No, never !' The public prose- 
 cutor knew better than to ask any such question. And 
 would Mr. Leavitt, who boasts of his vigilance at this 
 time in watching over the concerns of the bank, — would 
 he, I ask, have permitted the daily payment, to a great 
 amount, without funds, of the checks of a company in full 
 business, who had given to any individual not connected 
 with such company the control over their bills receiv- 
 able ? The story is too ridiculous, too absurd, to gain 
 credit for a moment. But my client does not depend 
 upon inferences to silence these calumnies ; and I will 
 give you a short statement of the testimony in relation 
 to Mr. Leavitt. 
 
 ''Mr. David B. Ogden told you that Mr. Leavitt 
 intentionally deceived Mr. Eckford, and those concerned 
 in the settlement for the Morris stock, on the day of 
 settlement, in this, that he said the certificates were at 
 the bank, when he knew them to be in the hands of the 
 grand jury; and if he has sacrificed the truth on one 
 occasion, he must expect his testimony to be more scru- 
 pulously canvassed on another. 
 
 " He testified that he had several conversations with 
 Barker after the failure of the Hudson Company, and 
 
248 LIFE OF JACOB BARKER. 
 
 before the failure of the Life and Fire. That in one of 
 those conversations Barker told him that he had the 
 control over the notes in the Fulton Bank deposited by 
 the Life and Fire, and that, as near as he could recol- 
 lect, this conversation took place about four days after 
 the failure of the Hudson Company, and a week before 
 the failure of the Life and Fire. That the Hudson 
 failed the 8th of July. That, in speaking of the over- 
 drawing of the Life and Fire, Barker mentioned the 
 note of Allaire as one on which calculation could be 
 made toward the payment of such overdrawings. That 
 subsequently the Life and Fire withdrew the note of 
 Allaire ; that such withdrawal took place after the notice 
 from Barker that he had the control of that note ; when 
 Barker heard of it, he complained, alleging that the 
 bank had no right to give it to any other person than 
 himself. 
 
 "Kingsland testified that the note was withdrawn by 
 himself, pursuant to the orders of the officers of the com- 
 pany, after the failure of the Life and Fire, and before 
 the account was made good. Leavitt stepped up and dis- 
 puted Kingsland's testimony, and testified that if it was 
 withdrawn before the account was made good, that it 
 was withdrawn before the failure of the company, and 
 before the overdrawings; that he had never given up 
 security while the account remained over. Kingsland 
 was recalled, and examined the books, and testified that 
 the note became payable on the 24th of July; that it 
 was withdrawn after the failure and before it was pro- 
 tested; he could not say on what day, but it was on or' 
 about the 24th of July, he believed, on the very day it 
 became due; it was not protested; it would have been, 
 had it not have been paid or withdrawn. Clinch testi- 
 
LIFE OF JACOB BARKER. 249 
 
 fied that it would have been protested if it re- 
 mained in the bank until due ; if paid, it would have 
 been entered to the credit of the Life and Fire ; neither 
 had happened ; but from the erasure on the note-book 
 it had been withdrawn either on the day it fell due or 
 before. 
 
 " Kingsland, being further examined, testified that 
 when he went to the bank to withdraw the note the 
 clerk refused to give it to him, alleging that the Life 
 and Fire account was withdrawn, and that the note 
 could not be given up until the account was made good. 
 Leavitt was present; the clerk spoke to him, and after 
 some time spent in conference and examination it vfas 
 determined that, as there were other satisfactory notes 
 in the bank sufficient to secure the amount overdrawn, 
 Allaire's note might be given up, whereupon the clerk 
 gave to Kingsland the note. 
 
 " Leavitt swore that Clinch came up to the board of 
 directors on Monday, the ITth of July, and said Barker 
 had forbid the payment of Life and Fire checks ; that 
 he came down and stated to Barker that they must pay 
 to the extent of funds in hand, to which Barker made no 
 reply. Clinch stated that Barker did not attempt to 
 forbid the payment of any check, or did he intimate that 
 Life and Fire checks ought not to be paid to the extent 
 of funds in hand; that Barker called on Monday, the 
 17th of July, at. the close of the business of the day, 
 and intimated to him that it would be prudent not to 
 pay Life and Fire checks beyond funds in hand; that he 
 went immediately up-stairs to the directors' room, where 
 they were assembled, and mentioned it to the president, 
 who came down, and. Clinch believes, invited Baker into 
 the directors' room; that he did not tell Leavitt that 
 
250 LIFE OF JACOB BARKER. 
 
 Barker had forbid the payment of Life and Fire checks, 
 nor did he intimate to Leavitt that Barker had said 
 they ought not to be paid to the amount of funds in 
 hand, but that he told Leavitt that Barker had inti- 
 mated that it would be prudent not to pay them beyond 
 funds in hand. Leavitt testified that Barker told him 
 on Saturday, the 15th of July, that he considered it 
 uncertain whether or not the Life and Fire would be 
 enabled to sustain itself; that he did not, on receipt of 
 this information, give any caution to the clerks of the 
 bank not to pay Life and Fire checks beyond funds in 
 hand, because the clerks had previously received per- 
 emptory general orders not to pay beyond funds in 
 hands. Clinch testified that they were in the daily 
 habit of paying Life and Fire checks for large amounts 
 in the course of the day without money in hand, relying 
 on its being made good before three o'clock; that this 
 practice continued down to the day of the failure; that 
 Leavitt knew all about it; that no order had, to his 
 knowledge, been given to refuse or to examine Life and 
 Fire checks; that large amounts would have been paid 
 on the day of failure, had they been presented, whether 
 there had been money in the bank to the credit of the 
 Life and Fire or not. 
 
 " Kingsland testified that the Fulton Bank were in 
 the daily habit of paying checks for large amounts as 
 they were presented, without money in hand, and that 
 he made the account good daily by depositing about a 
 quarter before three o'clock. The amount overdrawn was 
 about $1400 or $1500, and happened the day the com- 
 pany failed, which was made good, partly on the 21st 
 of July and the residue on the 11th of August, by the 
 collection of notes; that the residue of the notes had 
 
LIFE OF JACOB BARKER. 251 
 
 been delivered to the receivers ; and that none of them 
 had been delivered to Barker. 
 
 " Mr. Franklin testified that he resigned his seat as a 
 director of the Fulton Bank about the 13th of July, and 
 that the Hudson Company did not fail until a day or 
 two after such resignation. Leavitt then came forward 
 again to correct his testimony, and said he had been 
 mistaken as to the time the Hudson Company failed ; 
 that they had paid all their bonds on the 14th of July. 
 Leavitt came forward again to explain, stating that he 
 had several conversations with Barker about the state 
 of the Life and Fire ; that he had not refreshed his 
 mind by examining the notes of the former trial, but 
 that he thought the conversation about his having the 
 control of the notes was before the failure of the Life 
 and Fire; he also restated that all his conversations 
 with Barker in relation to the Life and Fire notes were 
 subsequent to the failure of the Hudson Company. Mr. 
 Butler and Mr. Sparhawk stated that Mr. Leavitt had 
 testified on the former trial of this cause, that when 
 Barker told him that he had the control of the Life and 
 Fire notes deposited in the Fulton Bank, they were con- 
 versing about the overdrawings of the Life and Fire, 
 which overdrawings took place on the day of the failure 
 of the Life and Fire ; that Leavitt stated it was after the 
 failure that this conversation took place, but how long 
 after Mr. Butler said he did not recollect; that he had 
 put down on his notes at the time, that Leavitt stated 
 that such conversation was after the failure of the Life 
 and Fire, without mentioning how long after. Mr. Spar- 
 hawk stated that Leavitt had, on a former trial, stated 
 that the first conversation about the overdrawing was 
 on Monday, after the failure of the Life and Fire. The 
 
252 LIFE OF JACOB BARKER.. 
 
 Life and Fire failed on Tuesday, tlie IStli of July. The 
 Monday after was the 24th, the very day when Mr. Al- 
 laire's note became payable, and of course the very day 
 of all others when the parties would be most likely to 
 talk of it, and that after this it was that Barker told 
 him that he had control of the notes of the Life and 
 Fire deposited in the Fulton Bank. Leavitt further 
 testified on the present trial, but at an early stage of 
 his examination, that he considered Barker had been 
 instrumental in getting him removed from the presidency 
 of the Fulton Bank; superadding, 'but I have no preju- 
 dice against him.' And when pressed to say whether or 
 not Barker had been employed by the directors of the 
 Fulton Bank, to assist them in sustaining the bank at 
 the time it was run, (the 17th of July,) he insisted that 
 B.arker was a volunteer, and seemed unwillingly to 
 admit that Barker's assistance was either acceptable or 
 beneficial ; the guarantee of Leavitt and others expressly 
 recognized Barker as assisting by their request. Mr. 
 Lawrence and Mr. Carter testified to that fact; and 
 Mr. Hicks testified that he heard Leavitt, during the 
 run on the Fulton Bank, request Barker to send the 
 specie immediately, and to get a carriage for that 
 purpose. 
 
 "Mr. Leavitt said, in answer to a question put by 
 Mr. Barker, ' Do you not believe that if Messrs. Spencer 
 and Brown, and those directors of the Fulton Bank 
 under their influence, had not resigned, and Mr. Barker 
 had not rendered aid, that the bank would have been 
 compelled to stop payment?' 'I think not.' 'Do you 
 mean to say that the bank could have met all its en- 
 gagements punctually, after the Hudson Company had 
 failed, if the president and directors of that company 
 
LIFE OF JACOB BARKER. 253 
 
 had continued tlieir controlling influence over the direc- 
 tion of the Fulton Bank?' 'I think so.' 'Do you 
 recollect the great excitement in the city, and particu- 
 larly against those men ; the total prostration of credit ; 
 that the specie in the bank was reduced to J3000 ; and, 
 in the language of Mr. Clinch, that the bank was sur- 
 rounded by a mob to get their bills redeemed?' 'Not- 
 withstanding all this, I think the bank would have met its 
 engagements, because an arrangement had been made 
 by which the necessary aid w^as to have been procured 
 from the Tradesmen's Bank.' 'That is news to m^. 
 Let us have the particulars.' Mr. Leavitt did not make 
 any explanation. Here let it be remembered, as an 
 established fact, on the testimony of Falls and Nevins, 
 that the Tradesmen's Bank w^as placed under an injunc- 
 tion on the 15th of July, and that the run on the Fulton 
 was on the 17th of July, and that, therefore, it could 
 not have got a dollar from the Tradesmen's Bank. 
 
 " The Rathbone paper is dated 12th of July. Messrs. 
 Burrell and Humphreys were elected on that day, as 
 appears by the minutes of the bank in proof. Mr. 
 Catlin testified that they were elected very soon after 
 the conference between himself, Mr. Leavitt, and Mr. 
 Barker, about new directors; that he believed the very 
 next morning ; could not say the precise time, but that 
 he perfectly recollected they were elected very soon 
 after such conference. Mr. Carter testified that Messrs. 
 Hazard, Corse, Lawrence, Thurston, and Comstock 
 were elected expressly on the ground of their being 
 Barker's friends, and that those five g.entlemen were 
 very fit men for the situation, and that the aff"airs of the 
 bank were safe in their hands. The minutes of the 
 bank prove that they were all elected on the 13th and 
 
 22 
 
254 LIFE OF JACOB BAEKER. 
 
 14tli of July, and by Leavitt and his friends, as neither 
 Brown, Spencer, Rathbone, Franklin, nor their friends, 
 were at the board when the election of either of them 
 took place; although only one at a time had resigned, 
 and not another until the previous vacancy had been 
 filled. Mr. Carter stated, also, that the bank had advanced 
 $9000, and that he understood that Barker, or Eckford 
 and Barker, had advanced an equal sum for the support 
 of the Hudson Company. This plainly proves that 
 these things were all done in pursuance of some arrange- 
 r&ent with Spencer and Brown, growing out of the ne- 
 gotiation to which this paper. No. 3 and 4, was a part; 
 but it does not prove the precise terms of the agree- 
 ment, when the negotiation reached the form of an agree- 
 ment. 
 
 ^' Here we have the testimony of David B. Ogden, 
 Esq., as to the inaccuracy of Mr. Leavitt's declarations 
 on settling for the Morris stock. We confront Mr. 
 Leavitt's declaration on this occasion, that Barker told 
 him he had the control of the Life and Eire notes a 
 week before their failure, with his oath on the former 
 trial, where he said it was after the failure of the Life 
 and Fire that Mr. Barker told him this ; for which we 
 have the testimony of Mr. Sparhawk and Mr. Butler, 
 sustained by their separate notes taken at the time. 
 And since we are obliged to credit the oath he now 
 makes, or the oath he then made, we prefer trusting his 
 recollections for four rather than for twelve months; 
 as he would be much more likely to relate accurately 
 while the circumstances were fresh in his recollection 
 than after a lapse of a year, especially as in the inte- 
 rim he said he had been removed from the presidency 
 of that bank by the instrumentality of my client. 
 
LIFE OF JACOB BAEKBR. 255 
 
 " He stands contradicted by several witnesses, as to 
 the period of the failure of the Hudson Insurance Com- 
 pany. Kingsland contradicts him positively, as to the 
 withdrawal of Allaire's note. Clinch contradicts him 
 positively, as to Mr. Barker's forbidding him to pay Life 
 and Fire checks. And will any one believe, if Barker 
 had given him the alleged information on Saturday, that 
 he would not, under the circumstances, have given an 
 intimation to the clerks of the bank? Clinch swears 
 that if the checks of the Life and Fire Company had 
 been presented on the day of the failure, to the amount 
 of 20 or 30,000 dollars, they would have been paid with- 
 out funds and without examination. 
 
 "Leavitt swore that he had no pique against Mr. 
 Barker, and this, too, without being asked. He may 
 not be conscious of it; but can you believe that asser- 
 tion, gentlemen of the jury, after the testimony you 
 have heard? Why, then, did he, when asked if Mr. 
 Barker had not been invited to assist the bank in its 
 troubles, elude the admission, and declare Mr. Barker 
 to have been a volunteer? 
 
 ''On this subject how differently did Mr. Lawrence, 
 Mr. Catlin, Mr.-Selden, and Mr. Carter testify! And 
 Mr. Hicks stated that he heard Leavitt apply to Barker 
 to assist the bank, to send the specie immediately, and 
 to get a carriage for the purpose. 
 
 "Mr. Clinch testified that Barker brought the specie 
 in the time of their greatest need. And, gentlemen of 
 the jury, you heard Leavitt swear that the Rathbone 
 paper, dated the 12tli of July, did not relate to the 
 negotiation for change of directors, which took place 
 in the Fulton Bank. The express words of that paper 
 are, 'to fill the two existing vacancies.' The minute- 
 
256 LIFE OF JACOB BARKEK. 
 
 book and Mr. Carter proved to you tliere never were 
 two vacancies on any other day. They were filled by 
 Messrs. Burrell and Humphreys that very day. 
 
 "And Mr. Catlin further tells you that Mr. Leavitt 
 and Mr. Barker called at his house, to consult him and 
 to procure his assistance in selecting two good directors 
 for the bank, the preceding evening. Now, after having 
 heard all this testimony, I should like to see the man 
 — if there be one — hardy enough to ask a jury to place 
 any reliance on the testimony of the witness in question. 
 Be the misstatements he has fallen into the result of a 
 defective memory or not, they are so great and glaring 
 that a discreet jury would never permit themselves to 
 act on its evidence." 
 
 The excitement against the accused was terrific, fuel 
 being added to the fire by discourses from the pulpit. 
 Four of the clergy disgraced their clerical robes by 
 preaching renown to Maxwell for the zeal he manifested 
 in the prosecution. 
 
 The Common Council, one-half of whose members 
 were implicated in the stock speculations which were 
 denounced as fraudulent, gave Maxwell from the public 
 chest a thousand dollars extra fee or salary for the 
 additional services rendered in the matter. 
 
 A service of plate was also presented to him by a few 
 of the moneyed aristocracy, as evidence of their appro- 
 bation of his nefarious conduct. 
 
 Three of the counsel employed by the guilty parties, 
 in their speeches on the trial, assailed Mr. Barker 
 violently. Application was made to a fourth — Thomas 
 J. Oakley, Esq. — to join in the attack, which was in- 
 dignantly rejected by that honorable gentleman. 
 
 To grapple with such a cause, and triumphantly fight 
 
LIFE OF JACOB BARKER. 257 
 
 it through, required exactly such a man as Mr. Barker. 
 He seems to have been made for the occasion : his pre- 
 sence of mind and confidence in the final issue never 
 for a moment forsook him. 
 
 CHAPTER XIX. 
 
 APPLICATION FOR A NEW TRIAL. 
 
 a 
 
 This trial resulting unfavorably, Mr. Barker having 
 taken many exceptions to the proceedings on the trial, 
 on which he intended to apply to the Supreme Court to 
 set aside the verdict, it became important that the 
 Supreme Court should be furnished with a full state- 
 ment of the case. This was also necessary to enable 
 the court to regulate the degree of punishment, in case 
 they should confirm the verdict. Mr. Barker therefore 
 prepared a statement of the whole case, and presented 
 it to the district attorney, who refused to look at it or 
 make any counter-statement; whereupon Mr. Barker, 
 accompanied by his counsel, George Griffin, Esq., 
 applied to Judge Edwards, and requested him to furnish 
 a copy of his notes in the case, with a copy of his 
 charge to the jury, which the judge utterly refused to 
 furnish,, adding that his notes were not full, nor could 
 he rely upon their accuracy; and that he would not 
 make any report of the trial to the Supreme Court, 
 unless that court should require him to do so ; but that, 
 if Mr. Barker should make a case, serve it on the dis- 
 trict attorney, and furnish a list of exceptions, and the 
 
 22* 
 
258 LIFE or JACOB BARKER. 
 
 parties afterward appear before liim with, such case and 
 exceptions, he would settle the same. Mr. Griffin then 
 informed the judge that Mr. Maxwell refused either to 
 look at that prepared by the defendant or to prepare 
 one himself, notwithstanding which, the judge adhered 
 to his refusal with great pertinacity. Mr. Barker then 
 gave the district attorney notice to appear before the 
 Hon. John Savage, chief-justice, at his chambers in 
 Albany, to show cause why a case should not be made 
 for the use of the Supreme Court. On reaching 
 Albany, Mr. Barker found Judge Edwards and Mr. 
 Maxwell there ; he informed Chief- Justice Spencer, his 
 counsel, of Judge Edwards's refusal. "Very strange, 
 this," replied the judge: "let us go and see him: he will 
 not refuse me." Mr. Barker responded that such an 
 application would be useless, that he would certainly 
 adhere to his refusal. "Impossible," said the chief- 
 justice: "let us go and see." They did so, and repeated 
 the application for a report of the case from the judge, 
 or fojL' a copy of his notes and charge to the jury, 
 which he again refused to furnish. The motion before 
 Chief-Justice Savage coming on, Mr. Maxwell ap- 
 peared and made one of his boisterous and inflam- 
 matory speeches, to which Mr. Barker was about 
 replying, when the chief-justice observed to him that a 
 reply was unnecessary, that all he had to do was to 
 verify his own statement, and the court would, under 
 the circumstances, consider it the case to be- passed 
 upon. 
 
 For the purpose of establishing before the Supreme 
 Court that Maxwell did not present the complaint of 
 Mr. Barker, with his proofs, to the next grand jury, 
 the following testimony was procured: — 
 
life of jacob barker. 2o9 
 
 ^'Supreme Court. 
 
 "Jacob Barker and others, 
 ads. 
 The People. 
 
 "Stephen Allen, being duly sworn, deposeth and 
 saith, that the within certificate is in the handwriting 
 of this deponent, and that the facts therein set forth 
 as of his own knowledge are true. And this deponent 
 further says, that he was one of the grand jury for the 
 court of sessions for the month of July, 1827, and that 
 he acted as foreman thereof; that Mr. Jacob Barker 
 applied to this deponent to know if sundry papers had 
 been placed in the hands of the grand jury, which the 
 said Barker alleged that he had placed' in the hands of 
 the previous grand jury, and which they had handed 
 over to the court of sessions as unfinished business, for 
 the purpose of having the inquiry continued by the then 
 sitting grand jury. This deponent replied to the said 
 Jacob Barker, that no such papers had come before that 
 grand jury; that he had not heard or seen any thing 
 of them ; and this deponent further saith, that the said 
 papers were not submitted to the said grand jury; that 
 the said Barker said he very much wished the use of 
 some of the said papers on the trial then going on 
 against the said Barker for an alleged conspiracy; that 
 he considered them as containing very important testi- 
 mony in his favor. Stephen Allen. 
 " Sworn, the 31st day of July, 1827, before me. 
 
 "Nath. B. Blunt, 
 
 ^^Commissioner, &cJ* 
 
 Mr. Barker therefore presented to the Supreme 
 Court the case prepared by himself, and his counsel 
 
260 LIFE OF JACOB BARKER. 
 
 "Was about to argue thereon, among other things, that 
 the verdict was against evidence, when the district 
 attorney requested to have such argument deferred 
 until the judge's report of the case should come in, 
 which he stated to the court was in progress of copy- 
 ing. At that time Judge Edwards was in Utica, where 
 the Supreme Court was sitting, on his way to Penfield. 
 Mr. Barker made application to him to know if he was 
 preparing a report of the case. On being informed 
 that he was not, and should not, unless required to do 
 so by the Supreme Court, being again requested to 
 examine the case prepared by Mr. Barker, he declined. 
 Mr. Barker then requested him to examine his state- 
 ment of the judge's charge, and to certify the same if 
 correctly stated; if not correctly stated, to point out 
 the errors for the use of the Supreme Court, w^hich he 
 utterly refused to do, and repeated that he would not 
 do any thing about the case, neither for the one party 
 or the other ; that he had determined not to look at any 
 statement made by either, and, unless the court should 
 require of him a report, he would not make any. 
 
 Mr. Barker then informed him of Maxwell's motion 
 and statement to the Supreme Court, and requested 
 him to defer his departure for the West until the court 
 should meet the next day, that he — Mr. Barker — might 
 have time to apply for such order, which he declined to 
 do, and departed from Utica without making any report. 
 After his departure, the district attorney sent a mes- 
 senger to him with a statement of the trial, prepared 
 under the direction of the district attorney, by his 
 clerk or partner, without reference to or aid of the 
 notes from the judge. 
 
 Mr. Barker was assisted by Ambrose Spencer, Esq., 
 
LIFE OF JACOB BARKEB. 261 
 
 who insisted that there was sufficient error in the record 
 to quash the whole proceedings; and, therefore, it was 
 unnecessary to await the return of the public prose- 
 cutor's messenger. 
 
 The writ of error was taken up and discussed at 
 great length hj the counsel on both sides, in which 
 Judge Spencer distinguished himself, as usual, making 
 a very logical, learned, and impressive speech. 
 
 The court sustained the writ of error. In pro- 
 nouncing their decision, they said, among other things, 
 that in the district attorney's answer to Mr. Barker's 
 application on the trial to produce the papers delivered 
 by Mr. Barker to the grand jury, and removed by him 
 from the files of the court, he said "he had them not," 
 Vy'hen he had them. This appears in the decisions of 
 the Supreme Court of New York for 1827. After this 
 decision. Maxwell left Utica; his messenger had not 
 then returned. When he came back he brought the 
 case which had been prepared by Maxwell, certified as 
 follows : — 
 
 "Upon comparing the foregoing case witn my notes, 
 I believe it to be substantially a correct report of the 
 testimony of the witnesses as given on the trial. The 
 books and other documents, including the affidavits as 
 to the testimony of General Swift, will, I understand, 
 be exhibited by the district attorney to the court. 
 
 "Ogden Edwards. 
 
 "Penfield, August 13, 1827." 
 
 That the judge should have so soon relinquished his 
 determination, so often expressed, "not to take sides in 
 relation to the report, not to look at the statement of 
 either party, and not to report the case to the Supreme 
 
262 LIFE OF JACOB BARKER. 
 
 Court until ordered by them to do so, is not less sur- 
 prising than that he should continue to withhold a copy 
 of his minutes and of his charge, and certify as correct 
 the statement of the district attorney, without giving 
 Mr. Barker an opportunity of pointing out the mani- 
 fold errors and discrepancies which run through the 
 whole document; which document the judge states in 
 his certificate he had compared with his own notes, 
 without saying that his notes were short and imperfect, 
 — a fact within his own knowledge, and which had in- 
 duced him to declare to Mr. Grij0&n and Mr. Barker 
 that he could not rely upon them, — and yet he refers to 
 his own notes in his certificate in such terms as would, 
 in the opinion of Mr. Barker, lead the Supreme Court 
 to suppose they were full and accurate, and entitled to 
 implicit confidence. 
 
 Mr. Barker, wishing the public to understand the 
 district attorney's version of all that had occurred, 
 borrowed the document from the messenger, and, with 
 the assistance of three or four friends, took a copy of 
 it before the rising of the sun on the following day ; 
 which copy, although imperfect and full of errors, he 
 caused to be immediately published in pamphlet form. 
 
 The public mind was constantly poisoned by the 
 erroneous statements of Maxwell, his inflammatory 
 speeches and newspaper misrepresentations ; in refuting 
 which James Gordon Bennett, Esq., then editor of the 
 '' National Advocate," was particularly useful, and did 
 more to disabuse the public mind than all the other 
 newspapers of the nation ; to him Mr. Barker feels 
 under lasting obligations. 
 
 The whole subject was finally disposed of by the 
 following proceedings : — 
 
life of jacob barker. 263 
 
 ''Supreme Court. 
 <' Henry Eckforcl, Joseph G. Swift, William P. Rath- 
 bone, Thomas Vermilyea, George W. Brown, Mark 
 Spencer, Matthew L. Davis, and Jacob Barker, 
 
 ads. 
 The People. 
 
 "New York, October 23, 1827. 
 '' Sir: — You will please take notice, that I intend to 
 move on Thursday of next week, the first of November, 
 the honorable the Supreme Court at the capital at 
 Albany, or as soon thereafter as counsel can be heard, 
 that the indictment in this case be quashed, or that a 
 nolle pi'osequi be entered, for reason that the said indict- 
 ment is not supported by the authority of law. 
 "Your obedient servant, 
 
 "Jacob Barker. 
 "Hugh Maxwell, Esq., District Attorney." 
 
 '''In Supreme Court, 14:th November, 1827. 
 
 " Jacob Barker and others, 
 ads. 
 "The People. 
 " On motion, Ordered that the indictment in this 
 cause be quashed. 
 
 "John Keyes Paige, Clerk.'' 
 
264 LIFE OF JACOB BARKER. 
 
 CHAPTER XX. 
 
 CHANCERY SUIT. 
 
 The conspiracy trials being over, and tlie chancery 
 suit continued, Mr. Barker caused many members of 
 the grand jury, the district attorney, clerk of the court, 
 many of the directors and officers of the institutions 
 alleged to have been defrauded, to be examined, under 
 oath, as witnesses before the master in chancery, to 
 whom the case had been referred, from some of whom 
 he obtained the original records of the parties to the 
 fraud on the Tradesmen's Bank, fixing the date when it 
 happened, at which time he was not in the State of New 
 York; proved that he had been wrongfully deprived of 
 his papers by Hugh Maxwell, who promised the grand 
 jury that they should be forthcoming on the trial ; that 
 Maxwell took from the clerk of the court Mr. Barker's 
 proofs as soon as the grand jury filed them, and selected 
 therefrom. the letters, six in number, from Mr. Eckford 
 to Mr. Barker, which went to contradict the declaration 
 that Maxwell graciously made, viz. : '' that Mr. Eck- 
 ford had been made the victim of others." When he 
 promised to restore him to the good opinion of his 
 acquaintances, the letters he took off, leaving the 
 other papers. When called upon to produce them on 
 the trial, he said he had them not. Mr. Hatfield proved 
 he had them in court, and that he knew he had them 
 there. The trial went on, and he did not produce them ; 
 that when he was constrained by the court of chancery, 
 
LIFE OF JACOB BARKER. 265 
 
 long after the trial, to account for them, he filed, with 
 the clerk of the court from which he took them, seven 
 letters ; the seventh was not addressed to nor intended 
 for Mr. Barker, who had never seen it ; thus furnishing 
 the strongest presumptive evidence that an unworthy 
 intrigue had been going on between the public prose- 
 cutor and an indicted and unacquitted individual. This 
 testimony also established Mr. B.'s entire freedom from 
 all the offences charged ; whereupon he called a public 
 meeting at the Merchants' Exchange, in Wall Street, 
 and exhibited the record of the midnight conspirators 
 against the Tradesmen's Bank. The said record was in 
 the handwriting of the recorder, Richard Riker, who had 
 wrongfully made Mr. B. pay five hundred dollars for 
 publishing alleged libels in relation to the conspiracy 
 trials, and put him under bonds not to do so again. He 
 urged on the grand jury the importance of these papers, 
 stating he relied upon them as a shield in the approach- 
 ing trial; that the object of the district attorney in de- 
 manding to have them delivered to him was to shield 
 those against whom the complaint under consideration 
 was made for conspiring to make Mr. B. answerable for 
 their own sins, and if he did get possession they would 
 not be forthcoming on the trial. The grand jurors tes- 
 tified to Mr. Barker's extreme reluctance at leaving 
 them. Depriving an accused party of the evidence on 
 which he relied for his defence, which was documentary, 
 in his own possession, and his own property, was as 
 great an outrage as was ever committed by the public 
 prosecutor of any country. 
 
 Mr. Barker, from anxiety that the public should be 
 kept informed of all the facts of the case, applied to many 
 of the city papers for the publication of the necessary 
 
 23 
 
266 LIFE OF JACOB BARKER. 
 
 / proofs. The influence of the moneyed aristocracy over 
 
 [ the press was great, as will be seen by the letters of 
 
 1 Messrs. Dwight & Townsend, of the Daily Advertiser, 
 
 I and of ^Ym. Coleman, of the Evening Post : — 
 
 "March 6, 1822. 
 
 '' Sir : — We have been called upon this afternoon 
 by a number of gentlemen regarding the documents of 
 which your advertisement is composed, who, upon hear- 
 ing their contents, have given us to understand that, if 
 published, they will involve us in difficulty with many 
 of our patrons and friends. 
 
 '' Not feeling willing to encounter this disturbed state 
 of feeling, we are under the necessity of declining the 
 insertion of the advertisement. 
 
 "We are, with respect, your obedient servants, 
 
 " Dwight, Townsend & Walker. 
 
 "Jacob Barker, Esq." 
 
 "My carriage is at the door, and I am this moment 
 stepping into it; but I cannot do so without first 
 suggesting to you the necessity of furnishing me with 
 law authorities to my hand, for you know I am in- 
 capable of stirring a step out of my office. 
 
 "Where is Mr. Selden ? 
 
 "Grive me tools in my hands, and I will use them, but 
 I cannot seek them. Wm. Coleman." 
 
 "April 19, 2 o'clock, 1828. 
 
 "Dear Sir: — I find it utterly impossible to become 
 your public advocate without a greater sacrifice than 
 you would wish me to make ; but ask no questions. 
 
 "Noah and Graham have a fine opportunity to show 
 themselves to a very desirable advantage. 
 
 "Hastily, Wm. Coleman." 
 
LIFE OF JACOB BAEKER. 267 
 
 (Extract of a letter from a friend.) 
 
 *' Prejudice is not only the offspring of ignorance, 
 but the mother of calumny^ and is to be corrected and 
 silenced only by the lash. 
 
 "You have taught the rogues a lesson which they will 
 not soon forget. 
 
 "Your account of yourself was necessary ; it was in- 
 dispensable to your justification; and the open, frank, 
 and manly manner of it does you great credit. 
 
 "I shall never forget the persecutions you endured 
 and triumphed over in this city. 
 
 " It was, in my judgment, bitter and malignant in the 
 extreme. 
 
 " I expressed my sense of it at the time in a poetical 
 satire; which, after all, I dared not publish. 
 . "It was a brief review of your history and character, 
 with a glance at the motives and character of your 
 assailants. 
 
 "I am almost tempted to give you some of the con- 
 cluding lines of it. 
 
 "After speaking of you with much freedom, and, 
 perhaps, some severity, it concludes as follows v — 
 
 *' 'TTe hnoiv him 2vell, and his most graceless deed 
 Is blazed so broad that he who runs may read ; 
 Yet do we hold him far above that crew 
 Who erst, like bloodhounds, did his track pursue; 
 Who basely join'd the insensate rabble's cry, 
 And tried their utmost powers to crucify. 
 He has, with all his faults, redeeming traits — 
 That pride, which still on independence waits ; 
 Strong sense, which no vain folly can efface ; 
 Domestic virtues and affection's grace; 
 
268 LIFE OF JACOB BARKER. 
 
 Strength, that against oppression takes its stand, 
 
 A manly spirit, and a liberal hand; 
 
 A zeal that scorns e'en danger to elude, 
 
 Unfaltering faith, and matchless fortitude. 
 
 While they, by spite or meaner passions sway'd, 
 
 Have malice, spleen, and impotence betray'd ; 
 
 A graceless corps, whom scarce a virtue warms, 
 
 No pride ennobles, and no vice alarms ; 
 
 Alike devoid of spirit and of shame, 
 
 Who cringe to power and tremble at a name: 
 
 Who, destitute of merit as of wit, 
 
 Still strive to bite, yet grumble when they're bit ; 
 
 Still prate of morals with malicious grin, 
 
 Yet, canting, hide the lurking fiend within ; 
 
 Who boast of honor, yet, to honor dead. 
 
 O'er truth and charity unblushing tread; 
 
 Who envy practices beyond their skill, 
 
 And rail at vices which they practise still; 
 
 Who, parrot-like, repeat each senseless tone, 
 
 And damn from spite or prejudice alone. 
 
 The muse, though weak her voice, unfamed her song. 
 
 Indignant speaks her fix'd contempt of wrong. 
 
 She still resists where'er injustice rules. 
 
 And scorns the arts of knaves, the power of fools; 
 
 The senseless prejudice, the furious zeal. 
 
 Of those who neither know, nor think, nor feel, 
 
 But as the vane of pop'lar passion plays, 
 
 Or as the sordid power of interest sways. 
 
 She scorns the oath combined with secret grudge. 
 
 The base caballer, and the biass'd judge; 
 
 The selfish views that with ambitious aim 
 
 Build on the ruins of another's fame. 
 
 She scorns the pliant tool that's basely led 
 
 To hurl his vengeance at a guiltless head ; 
 
 Who, won by wealth or bribed by vile applause. 
 
 Colleagues with malice, and perverts the laws. 
 
 She scorns the caitiif who would damn in spite 
 
 Of his own sense of justice and of right ; 
 
 Who to the favor'd few corruptly leans, 
 
 And kindred crimes with kindred baseness screens.* 
 
LIFE OF JACOB BAKKER. 269 
 
 "No man, except the person who wrote them, can 
 understand the above lines as well as yourself. 
 "Very sincerely yours, 
 
 "Jacob Barker, Esq., 
 
 '■''New Orleans.'' 
 
 In consequence of the avenues to the public mind, 
 through the daily press, being thus obstructed, Mr. 
 Barker continued to address it in pamphlet-form, from 
 which t^e following extracts are taken : — 
 
 Testimony taken before Thomas Bolton^ master in chan- 
 cery, in the suit in chancery of Henry Barclay and 
 others^ Stockholders in the Life and Fire Co.^ ys. 
 Henry Eckford, Jacob Barker, and others ; to annul 
 the transfer of certain effects of that Company to Mr. 
 Barker : 
 
 " Clarkson Crolius, sworn on the part of Mr. Barker, 
 and being asked. Was you a member of the grand jury 
 for the city and county of New York, for the month 
 of June, one thousand eight hundred and twenty- 
 seven ? 
 
 "He answers, He was a member of the grand jury 
 in the summer of that year, and he thinks it was for 
 the month of June. 
 
 "Being asked, Did you see sundry letters from Henry 
 Eckford, documents and papers appertaining, directly 
 or indirectly, to the account and transactions between 
 Jacob Barker and the Life and Fire Insurance Com- 
 pany? 
 
 " He answers, I did ; I saw said letters and heard 
 them read; other papers also. All said papers, witness 
 
 23* 
 
270 LIFE OF JACOB BAEKER. 
 
 thinks, had a bearing, directly or indirectly, on the 
 subject inquired about. Some of the documents related 
 to the transactions of Mr. Rathbone. 
 
 "Being asked. From whom did you receive those 
 papers ? 
 
 " He answers, They were presented to the grand jury 
 by Mr. Barker. 
 
 " Being asked, Did the grand jury return those papers 
 to Mr. Barker ? 
 
 "He answers, They did not. 
 
 "Being asked. What was done w^ith those papers? 
 
 "He answers, They were handed to the foreman of 
 the grand jury, to deliver to the court, with the express 
 understanding that Mr. Barker should have them when- 
 ever he should need them. This was so assented to by 
 the district attorney, and promised by him that Mr. 
 Barker should have the benefit of said papers before the 
 court whenever they should be required. The reason 
 of this pledge being taken was because -Mr. Barker 
 stated to the grand jury that he was afraid that if he 
 parted with them he should never be able to obtain them 
 again. The district attorney stated that the court was 
 a safe deposite for those papers, and that Mr. Barker 
 could have them when required. Mr. Barker gave them 
 up with great reluctance. He considered the district 
 attorney as expressing his opinion that it was the duty 
 of the grand jury to retain those papers and hand them 
 to the court. 
 
 " Being asked by Mr. Barker, Did I not request the 
 grand jury, during their session, to return said papers 
 to me, and object to their being given to any one 
 else ? 
 
 "He answers, I think you did. Mr. Barker stated 
 that there was a suit coming on shortly against him for 
 
LIFE OF JACOB BARKER. 271 
 
 an alleged conspiracy, in which those papers would be 
 of the most essential service to him. Mr. Barker parted 
 with them with great reluctance. 
 
 "Being examined by Mr. Hoffman, says, He knows 
 of no schedule of said papers being made ; cannot enu- 
 merate them. There may have been one or two of them 
 which were not read. Says there may have been from 
 twelve to fifteen papers, perhaps more, perhaps less; he 
 cannot speak with certainty as to their number ; rather 
 thinks there were rising twelve; there were probably 
 three letters from Mr. Eckford. 
 
 '^ Edward Prohyn^ sworn on the part of Mr. Barker, 
 and being asked, Was you a- member of the grand jury 
 for the city and county of New York for the month of 
 June, one thousand eight hundred and twenty-seven ? 
 
 ''He answers. He was. 
 
 '' The examination of Clarkson Crolius being read 
 over to him, he says the same is correct, and is a fair 
 statement of what took place before the grand jury on 
 that occasion. Says it was perfectly understood by the 
 grand jury that Mr. Barker was to have the benefit of 
 the papers at the approaching trial for the alleged con- 
 spiracy, and that when Mr. Barker objected to leaving 
 his papers with the grand jury, the question was put to 
 him whether he waS willing to leave the papers rather 
 than withdraw his complaint. Mr. Barker replied, if he 
 could not have them back on any other terms he would 
 rather leave them ; and he left them with extreme re- 
 luctance. Mr. Maxwell argued his right to appear be- 
 fore the grand jury at that time, and it was opposed by 
 some of the grand jury. 
 
 ^^ Anson Gr. Phelps^ sworn on the part of Mr. Barker, 
 and being asked, Was you a member of the grand jury 
 
272 LIFE OF JACOB BAEKER. 
 
 for the city and county of New York for the month of 
 June, one thousand eight hundred and twenty-seven? 
 
 "He answers, I do not recollect the month, but I was 
 a member of the grand jury the fore part of last sum- 
 mer. The testimony of Clarkson Crolius and Edward 
 Probyn being read over to him, he says said testimony 
 is generally correct. The district attorney claimed that 
 these documents belonged to the court, and that as 
 such it was his duty not to allow them to be returned 
 to Mr. Barker, but that they would at all times be access- 
 ible to Mr. Barker on the files of the court. 
 
 '-''George P. Rogers^ sworn on the part of Mr. Barker, 
 and asked, Was you not a member of the grand jury 
 in June, one thousand eight hundred and twenty- 
 seven? 
 
 "He answers, I was a member of the grand jury for 
 the month of June, one thousand eight hundred and 
 twenty-seven, for the city and county of New York. 
 The testimony of Clarkson Crolius, Edward Probyn, 
 and Anson G. Phelps being read over to him at his 
 request, he says it is generally correct throughout, and 
 is substantially true. Mr. Maxwell was present, and 
 insisted upon his right to be present, before the grand 
 jury. Some of the jury were very much opposed to it. 
 There was some discussion among fhe jury. There was 
 a considerable number of papers laid before the grand 
 jury by Mr. Barker : they were handed to the foreman. 
 Mr. Barker objected very strongly to their being re- 
 tained by the jury and kept from him. These papers 
 were handed to the court. The district attorney told 
 the foreman of the grand jury to retain them and hand 
 them to the court, and not to return them to Mr. Barker. 
 Witness thought they were to become a record of the 
 
LIFE OF JACOB BARKER. 273 
 
 court, and that the parties could have reference to 
 them whenever thej might want them, or copies of them, 
 by application to the court. 
 
 '-'•Hugh Maxivell^ sworn on the part of Mr. Barker, 
 and being asked. Have you seen, since the failure of 
 the Life and Fire Insurance Company, sundry original 
 letters, in the handwriting of Henry Eckford, addressed 
 to Jacob Barker, or J. Barker? 
 
 ''He answers, I have. 
 
 "Being asked. Have you had them in yom' possession? 
 
 ''He answers, I have. 
 
 "Being asked, Were they in your possession in the 
 month of June, one thousand eight hundred and twenty- 
 seven, during the trial of Mr. Barker for an alleged con- 
 spiracy ? 
 
 " He ansAvers, They w^ere in my possession at one time, 
 having been procured by me from the clerk of the court, 
 Mr. Hatfield, to whom they had been given by the grand 
 jury. 
 
 "Being asked. What is meant by one time? 
 
 " He answers. Part of them were in my possession, I 
 think, before the trial, and all of them about the time 
 of the trial. 
 
 "Being asked. Were all, or any of them, in your 
 possession at any time during the trial? 
 
 "He answers, They were all in my possession, I be- 
 lieve, at that time. 
 
 " Being asked. Did Mr. Barker apply to you to pro- 
 duce them on that trial? 
 
 "He answers, Mr. Barker, or somebody else, spoke 
 to me about them, and I referred them to Mr. Hatfield, 
 supposing I had returned them to Mr. Hatfield. 
 
 "Being asked, Did not Mr. Barker apply in person? 
 
274 LIFE OF JACOB BARKER. 
 
 "He answers, I think lie did; and that some one else 
 came with a subpoena d.uces tecum, 
 
 "Being asked. Were they produced on that trial? 
 
 "He ansvrers, I believe they were not, and that no 
 other application was made on the subject; and he says, 
 If the mistake had been explained, they would have 
 been exhibited ; they were in court at the time in the 
 bundle of papers in my possession. 
 
 "Being asked. When you say that they had been 
 given to Mr. Hatfield, the clerk, by the grand jury, do 
 you mean to say that of your own knowledge, or from 
 the information of others ? 
 
 "He answers, I infer it, because it was the ordinary 
 course of business for the grand jury to return papers 
 to the clerk, and I applied to him for them. 
 
 "Being asked. Do you know how the grand jury 
 came in possession of the said letters from Henry Eck- 
 ford ? 
 
 "He answers, I decline answering this. question, be- 
 cause my information was officially obtained. 
 
 "Being asked, Was you informed that the grand jury 
 had a special meeting of an afternoon, towards the close 
 of the session, immediately preceding the delivery of 
 said letters to the clerk, to hear a complaint from Mr. 
 Barker against Richard Biker and William P. Rath- 
 bone, and others? 
 
 "He declines answering, for the reasons above as- 
 signed. 
 
 " Being asked. Did you not go to that grand jury, 
 and find Mr. Barker there, and demand to be present 
 during his complaint? 
 
 " He answers as last beforesaid. 
 
 " Being asked, Did not the grand jury decide that 
 
LIFE OF JACOB BARKER. 275 
 
 you had no right to be present at the time Mr. Barker 
 was making his complaint, and did you not retire in 
 consequence thereof, first demanding of them to retain 
 whatever papers Mr. Barker should present in support 
 of his complaint ? 
 
 " He answers as last aforesaid. 
 
 ^' Being asked, Have you been retained by the Life 
 and Fire Insurance Company since the failure of said 
 company ? 
 
 ''He answers, I was employed as counsel some two 
 or three weeks before the indictments were found against 
 the individuals connected with that company, by or on be- 
 half of said company ; it was by letter from Mr. Ver- 
 milyea, or some one of the directors or ofiicers of said 
 company ; and upon Mr. Lawrence and Mr. Hoffman's 
 being appointed receivers of said company, I called on 
 Mr. Lawrence and informed him I had been so retained. 
 I am inclined to think, and am certain, the retainer was 
 sent to me after the failure of said company. 
 
 "Being asked. Have you brought with you a letter 
 from Henry Eckford to Jacob Barker, bearing date on 
 or about the seventh day of May, one thousand eight 
 hundred and twenty-six, and three other letters from 
 said Eckford to said Barker, of the same year; also the 
 several papers which in the late trials for conspiracy 
 were denominated the Bathbone papers; also a receipt, 
 bearing date on or about May the tenth, one thousand 
 eight hundred and twenty-six, for one thousand shares 
 Fulton Bank stock, signed H. Eckford & Co., or Henry 
 Eckford & Co. ? 
 
 "He answers. The last paper I do not recollect ever 
 to have seen. With respect to the others, they are in the 
 possession of Mr. Hatfield, the clerk of the said court, 
 
276 LIFE OF JACOB BAHKER. 
 
 as I believe. They are not in my possession. The letters 
 referred to were left with Mr. Hatfield some two or 
 three weeks ago. The four papers denominated the 
 Rathbone papers were left with him this morning, since 
 the service of the subpoena duces tecum in this cause, 
 the clerk being, in the opinion of witness, the proper 
 officer to produce papers. 
 
 "Being asked. Was Mr. Hatfield clerk of the court 
 where the conspiracy trial aforesaid took place, in June, 
 one thousand eight hundred and twenty-seven, when the 
 papers were demanded as aforesaid ? 
 
 "He answers, Mr. Hatfield was not clerk of the court 
 where the cause was tried ; Mr. Fairlie was. 
 
 "Here Mr. Maxwell required the questions to be re- 
 duced to writing. To give time to prepare them, he was 
 suifered to depart. Not attending at the next meeting, 
 a new subpoena was sent him; still he did not attend, 
 and all the eiforts of Mr. Barker to induce him to give 
 further attendance before the master in chancery have 
 proved unavailing. 
 
 '•^Richard Satfield^ sworn on the part of Mr. Barker, 
 produces six original letters from Henry Eckford to 
 Jacob Barker, and one from the same, dated July twenty- 
 ninth, no direction. Says he believes said letters to 
 be in the handwriting and signature of Henry Eckford, 
 with the exception of the one dated the thirteenth of 
 September, one thousand eight hundred and twenty-six. 
 The body of this letter is in the handwriting of some 
 other person, but the signature he believes to be Mt. 
 Eckford's ; has seen Mr. Eckford write once or twice, 
 perhaps more, and he believes them to be Mr. Eckford's. 
 The copies produced and left by witness are true copies 
 of said originals. 
 
LIFE OF JACOB BAEKER. 277 
 
 "Mr. Hatfield again called by Mr. Barker, and being 
 asked, From whom did you receive the letters alluded 
 to in your former examination? 
 
 '' He answers, I received them from the grand jury, 
 in May or June, one thousand eight hundred and 
 twenty-seven, I believe, or thereabouts, with other 
 papers. 
 
 "Being asked, Have they remained in your posses- 
 sion ever since ? 
 
 " He answers. He thinks on the very day they were 
 delivered, but is not certain as to the day; but, at any 
 rate, within a very few days thereafter, he delivered to 
 Mr. Maxwell, at his request, six letters purporting to 
 be from Henry Eckford to Jacob Barker, together with 
 a deposition of Mr. Barker. 
 
 " Being asked. When did you receive them back from 
 Mr. Maxwell? 
 
 " He answers. About two or three weeks past, he 
 thinks. 
 
 "Being asked, If you can particularize which of 
 the seven letters produced by you compose the six re- 
 ferred to as above ? 
 
 "He answers. He cannot say which. 
 
 "Being asked. Did you receive from Mr. Maxwell 
 the seventh letter with the six so returned? 
 
 "He answers, I received from Mr. Maxwell, or from 
 his clerk, a number of letters which I supposed to be the* 
 same I had delivered to him; there were seven letters 
 so delivered to witness, as the witness found upon ex- 
 amination here before the master, and not before. 
 
 "Being asked. Was you served with a subpoena 
 duces tecum, on behalf of Mr. Barker, to produce 
 those letters in court on the conspiracy trial, in June, 
 
 24 
 
278 LIFE OF JACOB BARKER. 
 
 one thousand eight hundred and twenty-seven, at the 
 trial of Mr. Barker for an alleged conspiracy? 
 
 "He answers, He was served with such subpoena to 
 produce certain letters, he presumes those inquired 
 about. 
 
 ''Being asked, Did you not appear in court on that 
 trial, and inform Mr. Barker that you had no such 
 papers in your possession? 
 
 *'He answers. He did. 
 
 " Being asked. Did you not at that time inform the 
 district attorney that such subpoena had been served on 
 you, and that you, the witness, had not the papers, but 
 that he, the district attorney, had them ? 
 
 "He answers. He did. 
 
 " Being asked. Did Mr. Maxwell on that occasion 
 deny having them ? 
 
 "He answers, I think he did at first; but after- 
 wards, at the same interview, he, the district attorney, 
 became satisfied that he, the district attorney, had them, 
 as witness believes. 
 
 "Being asked. Do you know the handwriting of the 
 endorsement on a letter from H. Eckford, which is not 
 addressed to Jacob Barker or any other person, which 
 letter is before referred to in your previous examination, 
 and bears date July the twenty-ninth, one thousand 
 eight hundred and twenty-six ? 
 
 " He answers. He cannot say he does, but he believes 
 it to be Mr. Colden's. 
 
 "Mr. Hatfield again called by Mr. Barker, and asked, 
 When you say you delivered the letters from Mr. Eck- 
 ford, how do you mean to be understood ? 
 
 " He answers, Mr. Maxwell asked me for Barker's 
 papers, received from the grand jury, the same day, or 
 
LIFE OF JACOB BARKER. 279 
 
 very soon thereafter, on wliieh they were received from 
 the grand jury ; I think it was in court where they 
 were received ; I handed him the bundle to look at ; 
 he selected out the letters of Mr. Eckford, and was 
 about taking them away, leaving the others. I requested 
 him to stop until I could take a list of them. He did 
 so ; I made a memorandum on the bundle that six letters 
 from Henry Eckford to Mr. Barker had been taken out 
 and delivered to the district attorney, with Mr. Barker's 
 deposition, or words to that effect, 
 
 "Being asked, Did Mr. Maxwell leave some papers 
 with you, on Friday, the twenty-fifth day of January, 
 one thousand eight hundred and twenty-eight, denomi- 
 nated the Rathbone papers? and how many? 
 
 "He answers. He left four papers with me, marked 
 1 2, 3, 4. 
 
 "Being asked. Did Mr. Maxwell require a receipt 
 for said papers ? 
 
 "He answers. He did; I gave it. 
 
 "Being asked, Were those papers ever in your pos- 
 session before? 
 
 "He answers, Never before. 
 
 "Being asked, Were they not among any papers 
 previously filed by you as clerk ? 
 
 "He answers, They were not.'* 
 
 The reader will observe that Mr. Maxwell, under the 
 solemnity of his oath, says, "If the mistake had been 
 explained, they would have been exhibited;" and that 
 Mr. Hatfield, under the solemnity of his oath, says, 
 "That on receiving the subpoena to produce the papers, 
 he went into the court, during the trial of Mr. Barker, 
 and informed the district attorney that he, Hatfield, had 
 
280 LIFE OF JACOB BARKER. 
 
 them not, but that he, the district attorney, had them." 
 Thus, we see, the alleged mistake was explained, and 
 yet the papers were not produced, and to believe they 
 were forgotten requires an uncommon share of charity; 
 and in forming an opinion on this solemn point the mind 
 is irresistibly led to review the whole conduct of the dis- 
 trict attorney in the case, especially the manner in 
 which he obtained the papers, the solemn promise made 
 to the grand jury that the papers should be produced 
 on trial, the unlawful manner of removing them from 
 the files of the court, the indignity with which he 
 treated the Supreme Court in defying their authority, 
 by telling them he would not submit to its exercise, 
 when they refused to allow the cause to go back to the 
 court of oyer and terminer, and by subsequently apply- 
 ing to the grand jury for new indictments to enable him 
 to carry that defiance into effect. The few individuals 
 who have contributed their money towards the purchase 
 of a service of plate for the district attorney are re- 
 quested to consider these things, and also to read the 
 preceding testimony, that they may know the character 
 and conduct that they have undertaken to sustain. 
 
 When I detected and exposed the appalling fact that 
 the district attorney had accepted of three hundred dollars 
 from Mr. Eckford, and other sums from divers others 
 of the indicted, immediately after the first trial, it was 
 attempted by Mr. Maxwell or his friend, through the 
 columns of the Enquirer, to induce the public to believe 
 that the letters from Mr. Eckford, of which the district 
 attorney deprived me, were of no consequence; I ask 
 the reader to consider that of the 7th of May, and also 
 that of the 21st of July, which are in the words follow- 
 ing :— 
 
LIFE OF JACOB BARKER. 281 
 
 "New York, May 7, 1826. 
 "Dear Sir: — In consequence of advice from Balti- 
 more, it became necessary for me to go on to-day. Have 
 the goodness to send me, by to-day's mail, the papers 
 you talked of. It will be twelve o'clock to-morrow be- 
 fore I leave Philadelphia. You will have the goodness 
 to give such aid as you can in completing the arrange- 
 ment with Mr. Spencer, 
 
 " Your friend, 
 
 ** H. ECKFORD, 
 
 " Jacob Barker, Esq. 
 
 " Directed, Jacob Barker^ Esq. 
 
 " Present. 
 ** A true copy, 
 
 " R. Hatfield." 
 
 *'New York, July 21, 182G. 
 "-'' Dear Sir :— If you can obtain $10,000 for the Mor- 
 ris, I will guarantee it. Mr. Bayard will hand you the 
 notes and bonds for $25,000 : it will accommodate very 
 much. 
 
 "Yours, &c., 
 
 «H.E." 
 " Ten will be wanted to-day, and five probably to- 
 morrow, and five when wanted after- You had better 
 negotiate this with Mr. Bayard, 
 
 " Directed to Jacoh Barker^ Esq. 
 "A true copy, 
 
 " R. Hatfield;" 
 
 " Matthew Heed, sworn on the part of Mr. Barker, 
 and being asked, Was you President of the Trades- 
 
 24* 
 
282 LIFE OF JACOB BARKER. 
 
 men's Bank in June and July, one thousand eight hun- 
 dred and twenty-six ? 
 
 " He answers, He was then, and for more than a 
 year previous. 
 
 "Being asked, "Was William P. Bathbone elected a 
 director of the Tradesmen's Bank, on the third of July, 
 one thousand eight hundred and twenty-six? 
 
 " He answers. He was. 
 
 "Being asked. Were you both directors of the Life 
 and Fire Insurance Company? 
 
 " He answers, Witness thinks he was, and he be- 
 lieves William P. Bathbone was, during June and July, 
 one thousand eight hundred and twenty-six, but he 
 never met him there. 
 
 " Being asked. Were rising four thousand shares of 
 Tradesmen's Bank stock transferred to William P. Bath- 
 bone, in July, one thousand eight hundred and twenty- 
 six? 
 
 " He answered. There were. 
 
 "Being asked. Did William P. Rathbone become 
 indebted to said bank for a corresponding amount at the 
 same time? 
 
 "He answers, A loan was agreed to be given him for 
 a corresponding amount at the same time, estimating the 
 stock at par. 
 
 " Being asked. Was not a Life and Fire bond re- 
 ceived, for about two hundred and sixty thousand dollars, 
 by said bank, as collateral security for such indebted- 
 ness, by said Bathbone ? 
 
 "He answers, There was a bond received, which he 
 thinks was for two hundred and sixty-two thousand 
 dollars, in addition to which, rising four thousand 
 shares of Tradesmen's Bank stock stood in Bathbone's 
 
LIFE OF JACOB BARKER. 283 
 
 name, which it was agreed between the committee of 
 the bank, of which witness was one, and Rathbone, should 
 not be transferred. 
 
 "Being asked. Was Rathbone's account settled by 
 Gouverneur with the bank, and was all the stock which 
 h{fd been transferred to Rathbone delivered to the 
 bank ? 
 
 " He answers, The account was so settled, and the 
 stock so delivered. 
 
 '' Being asked, Did the stock so delivered to the bank 
 embrace eight hundred shares which had been trans- 
 ferred by Rathbone to Seth Sturtevant ? 
 
 " He answers. It did. 
 
 " Being asked. Did you make the bargain for the 
 sale of the whole of the stock transferred to Rathbone ? 
 
 '' He answers. He did. 
 
 " Being asked. With whom ? 
 
 " He answers. With Mr. M. L. Davis, as agent, as 
 he (Davis) said, and not himself (Davis) interested a 
 shilling. 
 
 '' Being asked. Did he tell you for whom he made 
 such purchase ? 
 
 " He answers. He did not in distinct terms, but gave 
 him to understand, and in such manner that Mr. Davis 
 could not but have known at the time the impression 
 made on witness's mind, which was, that Davis had been 
 acting in the business as agent of Mr. Eckford. His 
 reasons for thinking so were, that Mr. Davis previously 
 informed him he had consulted with Mr. Eckford relative 
 to said purchase, and that about the time of concluding 
 the purchase Mr. Davis told witness he had to consult 
 two persons, who were all that knew of the negotiation 
 for the purchase, except Mr. Davis. Witness then 
 
284 LIFE or JACOB BARKER. 
 
 asked Mr. Davis who those persons were ; to which 
 Mr. Davis replied, One is William P. Rathbone, and 
 hesitated about naming the other, when witness said the 
 other must be Mr. Eckford ; and witness said so because 
 Davis had previously told him that he had consulted 
 Mr. Eckford. Upon witness naming Mr. Eckford, Mr. 
 Davis smiled, and confirmed the impression upon wit- 
 ness's mind, that he was acting for Mr. Eckford. 
 
 "Being asked, Did Mr. Davis enjoin upon you not 
 to let Mr. Barker know any thing about the purchase of 
 the said bank ? 
 
 " He answers, He enjoined him not to let any one 
 know about it, but did not mention Mr. Barker in par- 
 ticular, further than saying Mr. Barker knew nothing 
 about it. 
 
 " Being asked. Did you ever have any conversation 
 with Mr. Barker relative to the purchase or sale of said 
 bank-stock ? 
 
 '' He answers, Never. 
 
 '' Being asked. Did Josiah Hedden call upon you to 
 obtain a contract for the purchase of the Tradesmen's 
 Bank,, after the recent indictments for alleged conspiracy ? 
 
 " He answers. He did. 
 
 " Being asked, Did not Mr. Hedden tell you, that if 
 Mr. Barker could be convicted, Mr. Maxwell would be 
 satisfied, and all the rest would be let ojff ? 
 
 "Witness answers, He did tell him so; but it was at 
 a previous conversation to the one in which he applied 
 for a contract. 
 
 " Being asked, Did you not reply to Mr. Hedden, 
 that you would not give up the contract to be used 
 against Mr. Barker, without being called on the stand 
 as a witness, where you could explain it, and how it 
 
LIFE OF JACOB BARKER. 285 
 
 came to your hands, and, by the God that made you, 
 Barker had nothing to do with it ? 
 
 " He answers, That he held such conversation appli- 
 cable to a paper in witness's possession, which Hedden 
 alleged that he knew witness was in possession of, which 
 paper purported to be a contract for the purchase and 
 sale of the aforesaid stock of the Tradesmen's Bank, 
 but which had not been executed by witness ; and told 
 Mr. Hedden that I would not part with it to be used 
 to the prejudice of Mr. Barker, excepting I was called 
 as a witness to explain how it came into my hands. 
 Mr. Davis told me that Mr. Barker knew nothing about 
 the purchase of the bank, and, by the God that made 
 me, it shall never be used, without an explanation, to the 
 injury of Mr. Barker. 
 
 " Being asked. Did you not afterwards meet Mr. 
 Maxwell at Hedden' s house ? 
 
 "Witness answers, He did meet him there; but he 
 does not know whether it was before or after the afore- 
 said application by Mr. Hedden. 
 
 " Being asked. Did Mr. Maxwell say to you at that 
 time that he considered you innocent of the charges 
 made against you in relation to the Tradesmen's Bank ? 
 
 *' He answers, Mr. Maxwell said he was perfectly 
 satisfied with witness's conduct in relation to the Trades- 
 men's Bank, and that he should discharge the indict- 
 ment ; witness says it was in the presence of Mrs. 
 Hedden. 
 
 "Being asked. Did the said paper, for which Hedden 
 applied, mention Mr. Barker's name, or any thing to 
 lead you to suppose that he. Barker, had any thing to 
 do with the purchase of the said stock in the Trades- 
 men's Bank? 
 
286 LIFE OF JACOB BARKER. 
 
 "He answers, It did not. 
 
 " Being further asked by Mr. Barker, Did some of 
 the stockholders of the Tradesmen's Bank meet at your 
 house on the subject of disposing of their stock as afore- 
 said; if yea, when, and who were they, and what was 
 done ? 
 
 '^ He answers, That about the middle of June, 1826, 
 he thinks it was on the evening of the 14th, a number 
 of stockholders met at his house, when he stated to 
 them that he had been offered twenty-four per cent., and 
 to retain the dividend of four per cent, then about to be 
 declared. The payment as before stated, or, if we pre- 
 ferred it, (in lieu of the Life and Fire bonds,) could 
 have the post notes of the Morris Canal and Banking 
 Company, payable on the 15th of July then ensuing; 
 and that he felt it his duty to submit said proposition to 
 them for their consideration. That he then left the 
 room for a few minutes, and on his return was informed 
 that they had concluded to dispose of their stock, in 
 amount $300,000, including the stock of one other 
 person not then present, each retaining twenty-eight 
 shares, excepting the Honorable Richard Riker, who re- 
 tained thirty shares. They then authorized the Honor- 
 able R. Riker, Judah Hammond, Esq., and witness to 
 dispose of our stock in the way and manner before men- 
 tioned. 
 
 " Being asked by Mr. Barker, Are the minutes of 
 the meeting referred to in writing ? and, if so, are they 
 in your possession, and will you produce them ? 
 
 "He answers, I shall decline answering the question, 
 on the ground that I have interest depending which may 
 be materially affected. 
 
 " November 6. — The master ruled that Mr. Reed is 
 
LIFE OF JACOB BARKER. 287 
 
 bound to answer the question asked by Mr. Barker on 
 
 the 5th instant, if the same has a material bearing on 
 the subject under consideration. Mr. Barker states that 
 it has a material bearing on the paper marked ]N7 filed 
 on the 3d instant. 
 
 "Mr. Reed then answers, and says, That the minutes 
 inquired about are in writing, and produces a paper, 
 which he requires to be re-delivered to him, and which 
 is as follows : — 
 
 ^'^ Resolved, That the directors here present will 
 agree to sell their stock in the Tradesmen's Bank at 
 twenty-eight per cent, advance, provided a majority 
 assent thereto. 
 
 " ^Resolved, that 6,394 shares be sold: — 
 
 M. Heed 1,522 
 
 A. Mann 325 
 
 Mr. Mount 300 
 
 Mr. Schureman 225 
 
 R. Munson 220 
 
 R. Riker 480 
 
 J. Hammond 425 
 
 Mr.Purdy 295 
 
 R. Tillotson 439 
 
 Mr. Baker : 310 
 
 Mr. Boyd 603 
 
 Mr. Field 600 
 
 Mr. Gouverneur 550 
 
 Mr. Bowne 100 
 
 6,394 
 " ^ Resolved, That the above be secured to the respect- 
 
288 LIFE OF JACOB BARKER. 
 
 ive persons above named, and at tlie discretion of the 
 following committee. 
 
 '•^ '■ Resolved, That the surplus of 394 shares be re- 
 tained by the said directors in equal proportions. 
 
 "'Alderman Reed, 
 " 'J. Hammond, 
 
 "'R. RiKER, 
 
 " 'Committee.^ 
 
 "Being asked, In whose handwriting is the said 
 paper or minute?" 
 
 " He answers, In the handwriting of Richard Riker, 
 Esq. The persons therein named were all present ex- 
 cept* Rodman Bowne, and as to him he cannot speak 
 with certainty. They all agreed to the sale of said 
 stock, he believes, and witness paid over to each of 
 them, individually, the premium received as before 
 stated. Says Matthew L. Davis called at witness's 
 house and paid the premium with the interest thereon. 
 
 "■Richard Riker, being called by Mr. Barker, and 
 asked, Was Matthew Reed authorized by yourself and 
 others to sell a certain number of shares in the Trades- 
 men's Bank in 1826 ? 
 
 " He answers, I authorized Mr. Reed to bind my- 
 self; I do not know what others did. 
 
 "Being asked. Was such authority in writing? 
 
 " He answers, I do not recollect; I am under an im- 
 pression it was in writing ; at all events, I was bound by 
 my promise. 
 
 " Being asked, Was a contract for the sale of that 
 stock reduced to writing, between Matthew Reed, pur- 
 porting to be of one part, and certain other persons of 
 the other part ? 
 
LIFE OF JACOB BARKER. 289 
 
 " He answers, I never knew of such a thing, until 
 after the difficulties in the bank arose; then Mr. Reed 
 showed me such a paper. 
 
 ^' Being asked. Did Mr. Reed deliver said paper to 
 you? 
 
 '' He answers, Mr. Reed has assured me he did. I 
 may be mistaken as to its being a contract for the sale 
 of the stock. 
 
 "Being asked. Will you search for said paper, and, 
 if you find it, will you leave it with the master ? 
 
 '^ He answers, I will search for it, and will inform 
 the master. 
 
 "Being shown the copy of certain resolutions pro- 
 duced by Mr. Reed, purporting to be the record of 
 certain proceedings at Mr. Reed's house, and entered 
 on the master's minutes of the 6th instant, and asked, 
 Did you attend said meeting, and did the persons 
 therein named also attend that meeting, and was the 
 object of the meeting as specified in said paper ? 
 
 "He answers, I did attend at Mr. Reed's; it was 
 probably the meeting referred to, and most, if not all 
 the gentlemen named were present, and it related to the 
 sale of the Tradesmen's Bank stock. 
 
 '■'■ Richard Hiker, being again called, and asked, 
 Have you searched for the paper referred to by you in 
 your former examination, as a contract for the sale of 
 certain stock of the Tradesmen's Bank, and have you 
 found it? 
 
 "He answers. He has searched for it, and he has 
 found it; that he believes it to be the paper referred to, 
 and has it now with him; he received the paper, as he 
 verily believes, from Matthew Reed, late president of 
 the Tradesmen's Bank. 
 
 24 
 
290 LIFE OF JACOB BARKER. 
 
 "Mr. Barker then asked if he would produce it, to 
 which the said witness answered, That he received it 
 from Mr. Reed in confidence, and, as witness under- 
 stood, for the purpose of advisement, and as his counsel; 
 and he, witness, therefore respectfully submits to the 
 master, whether he shall return said paper to Mr. Reed, 
 now here present, to whose inspection the witness has 
 submitted the paper, or whether he shall lay it imme- 
 diately before the master. 
 
 "Being asked by Mr. Barker, Did not Mr. Reed 
 inform you that he had no objection to your producing 
 said paper before the master, as an exhibit in this 
 cause 
 
 "The witness answers. That Mr. Barker, in the pre- 
 sence of the witness, and of Mr. Murray Hoffman, and of 
 Mr. Selden, did ask, in substance, of Mr. Reed, whether 
 he had any objections that said paper should be produced 
 by witness, to which Mr. Reed replied, in the presence 
 of said persons, that he had looked at the papers and 
 had none. 
 
 "The master ruled that the witness must either pro- 
 duce such paper or deliver it to Mr. Reed; whereupon 
 witness delivered forthwith said paper to Mr. Reed. 
 
 " Mr. Reed, being called, then produced said paper, 
 marked R. R. by said Richard Riker, in words follow- 
 ing:— 
 
 "PrtperR. R. 
 
 " This is to certify, that I, Matthew Reed, this day 
 sell to Samuel L. Gouverneur and Samuel Cox six 
 thousand shares of the capital stock of the Tradesmen's 
 Bank, at one hundred and twenty-eight per cent., for 
 
LIFE OF JACOB BARKER. 291 
 
 the following payments, viz. : Ten per cent, cash, on or 
 before the 26th instant; also fourteen per cent, at the 
 same time, in Life and Fire bonds, or post-notes of the 
 Morris Canal and Banking Company, payable on or 
 before the 15th day of July next ensuing, and four per 
 cent., being the dividend on the 1st day of July next, 
 and the balance, say one hundred per cent., on or before 
 the fifth day of July next, or that notes be substituted 
 to relieve notes given for loans on said stock, by 
 myself and others whom I may hereafter designate ; 
 and it is further agreed, that when the two first above- 
 mentioned payments of twenty-four per cent, is made, 
 that I furnish irrevocable proxies for the said purchaser, 
 Samuel Cox, to vote on the said six thousand shares, 
 at the next election for directors of the said bank, say 
 on the 3d of July next, and also a power to transfer 
 said stock, on the 5th day of July, provided the whole 
 of the foregoing payments, in all, one hundred and 
 twenty-eight per cent., has been complied with. 
 
 '^Now, we, Samuel L. Gouverneur and Samuel Cox, 
 do agree to the above, in each of its details, and by 
 these presents do firmly agree with Matthew Reed 
 faithfully to perform the payments as before mentioned, 
 binding ourselves, our heirs, executors, administrators, 
 and assigns. 
 
 " In testimony whereof, we, jointly with him, set our 
 hands and seals this 21st June, 1826. 
 
 "Mw. Reed, [l. s.] 
 
 " Saml. L. Gouverneur, [l. s.] 
 ^'Samuel Cox, [l. s.] 
 
 '^ Mem. — Agreement made before signing. Interest, 
 
292 LIFE OF JACOB BAEKER. 
 
 at seven per cent., to be allowed on the whole of the 
 payments from the fifteenth day of June instant. 
 
 "Mw. Reed, [l. s.] 
 '' Saml. L. Gouveeneur, [l. s.] 
 " Samuel Cox, [l. s.] 
 
 ''Received, New York, 26th June, 1826, on the 
 above contract, thirty thousand dollars, it being ten 
 per cent., and bonds and cash, forty-two thousand 
 dollars, it being fourteen per cent., one hundred and 
 one dollars and fifty cents interest on the first ten per 
 cent., and also on the four per cent, dividend. 
 
 "Mw. Reed. 
 
 ^'Andreio S, Barker, being duly affirmed on the part 
 of the defendant, Jacob Barker, and examined by him, 
 says: That he is the son of the said Jacob Barker. 
 Says he left New York on Saturday, the 10th June, 
 1826, with his father, mother, and some other of their 
 children, for Newport, in the State of Rhode Island; 
 they went in a steamboat, and he thinks it was the Con- 
 necticut, Captain Comstock. From Newport they all 
 went to New Bedford by stage, and from thence by 
 water to Nantucket. His father and m^other remained 
 at Nantucket until about June 20, 1826, when they 
 departed from Nantucket for New Bedford, he thinks, 
 leaving witness at Nantucket. Witness is confident as 
 to the periods above mentioned, because he, the witness, 
 remained at Nantucket to attend a great sheep-shearing 
 at the island, which took place the latter part of said 
 month of June, and after his father left them, as above 
 stated. 
 
 ^'Strong Sturges, being called by Mr. Barker and 
 sworn, says. That Mr. Barker left New York in June, 
 
LIFE OF JACOB BARKER. 293 
 
 1826, on or about the lOtli of that month, — it was not 
 after the 10th, — for Nantucket, via Newport, in the 
 steamboat Connecticut, and returned on or aboTit the 
 22d of the same month, 
 
 "jP. G-. Halleck^ being called hj Mr. Barker and 
 sworn, says, Mr. Barker left New York for Nantucket 
 on the 10th June, 1826, and was gone about a fortnight. 
 
 ^'November 20. — Matthew Reed again called by Mr. 
 Barker, and asked. Do you hold the written authority 
 of the parties to the sale of the Tradesmen's Bank, 
 heretofore testified to ? If yea, will you produce it ? 
 
 ''He answers, I was authorized, in writing, to sell 
 the said stock in the Tradesmen's Bank by certain in- 
 dividuals. I consider it a private paper. I cannot 
 produce it unless ordered by the master so to do. 
 Master calls upon Mr. Barker to make affidavit of the 
 materiality of said paper, which was done and filed, in 
 words following: — 
 
 "in chancery. 
 
 *' Henry Barclay and others, 
 
 vs. 
 ^^ Jacob Barker and others. 
 
 ''State of New York, ss. — Jacob Barker, the above- 
 named defendant, being duly affirmed, saith: That a 
 certain paper, referred to by Matthew Reed as being 
 a written authority .from certain persons to sell stock 
 of the Tradesmen's Bank, is, in informant's opinion 
 and belief, material in matters now in question before 
 the master. Jacob Barker. 
 
 "Affirmed this 20th of November, 1828, before me. 
 
 "Thos. Bolton, 
 
 ^'Master in Chancery. 
 
 25* 
 
294 LIFE OF JACOB BARKEK. 
 
 "The master rules it must be produced. 
 
 " The paper is produced and filed, marked M. R* 
 
 "B'eing asked, Are the signatures in the handwriting 
 of the persons whose names appear to said paper ? 
 
 " He answers, They are. 
 
 "Being asked, Are the word and signatures ^New 
 York, 19th June, 1826,' in the handwriting of Richard 
 Riker? 
 
 " He answers, I think it is, and was written at the 
 time it bears date. I believe I saw him write it. 
 
 "Paioer M. R. 
 
 " We, the subscribers, do hereby authorize Matthew 
 Reed to sell and dispose of our stock in the Trades- 
 men's Bank, the number of shares set opposite our 
 respective names, at twenty-eight per cent, above par 
 value, with interest from and after the 15th day of 
 June instant. And we do agree to furnish proxies for 
 the purchaser to vote on the same at the next election 
 for directors of said bank, which election is fixed for 
 the 3d day of July next. Payments we agree to accept 
 as follows, viz. : Ten per cent, on the 26th day of June 
 (instant), cash ; fourteen per cent., same day, in Life 
 and Fire bonds or post-notes of the Morris Canal and 
 Banking Company, payable on or before the fifteenth 
 day of July next ensuing, and four per cent., the divi- 
 dend on the stock, payable on the first day of July 
 next, and the balance, one hundred per cent., on or 
 before the fifth day of July next, or that notes be sub- 
 stituted in every and all cases to relieve our notes when 
 given for loans on said stocks ; and that on the payment 
 of the two first-mentioned above sums — say making 
 twenty-four per cent. — that we do agree to furnish for 
 
LIFE OF JACOB BARKER. 
 
 295 
 
 the purchaser irrevocable proxies to vote on the stock, 
 and a power to transfer the same on the fifth day of 
 July next, when the last instalment of one hundred per 
 cent., as above mentioned, shall have been complied 
 with. 
 
 "New York, June 19, 1826." 
 
 
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296 LIFE OF JACOB BARKER. 
 
 '' MattJietv Meed, being called again and asked by 
 Mr. Barker to state more precisely the amount received 
 for premium on the stock of the Tradesmen's Bank, 
 sold in 1826, than when formerly examined on the 
 subject. 
 
 ^'He answers, The agreement was for six thousand 
 shares of stock, which at par amount to $300,000, on 
 which we were to receive twenty-eight per cent, pre- 
 mium." 
 
 It appears by the proceedings of the midnight meet- 
 ing, in the handwriting of the recorder, that there 
 were fourteen persons present, who clubbed six thousand 
 three hundred and ninety-four shares of stock ; the 
 unknown purchaser would only take a sufficiency to 
 control the bank, say six thousand shares ; the remain- 
 ing three hundred and ninety-four the sellers agreed to 
 divide equally, when the recorder makes the following 
 
 calculation: — 
 
 14)394(28 
 28 
 
 114 
 112 
 
 2 
 
 By reference to the paper, it will be seen that these 
 fourteen directors agree each to retain twenty-eight 
 shares, and the recorder also agrees to take those two 
 remaining shares, in addition to the twenty-eight, — in 
 all thirty. 
 
 '^ Samuel Oox, again called by Mr. Barker, and de- 
 sired to look at the paper marked B. B., filed on the 
 19th instant, and asked, Did you sign said paper ? 
 
 ''He answers, I did.' 
 
LIFE OF JACOB BARKER. 297 
 
 ^' Being asked, Was the stock therein mentioned pur- 
 chased in part or in whole on your account? 
 
 "He answers, It was not. 
 
 "Being asked, At whose instance did you sign that 
 contract ? 
 
 "He answers, I am not very positive, but I think I 
 am not mistaken when I say it was at the instance of 
 Mr. Beed, the president of the bank, though I have a 
 faint recollection about it. It might have been at the 
 instance of Mr. Gouverneur, or Mr. Davis, though I 
 think it was Mr. Beed. 
 
 "Being asked, Was any portion of this stock trans- 
 ferred by the sellers, and to whom? 
 
 "He answers. About four thousand eight hundred 
 shares were transferred to W. P. Bathbone; but whether 
 directly or not he cannot say. 
 
 "Being asked, Did you mention to Jacob Barker 
 that you had signed, or was a party to, a contract for 
 the purchase of the Tradesmen's Bank, or the stock 
 thereof, before mentioned? 
 
 "He answers, Never, to my recollection or belief. 
 
 "Being asked. Did you ever vote on the proxy of the 
 sellers, at the election for directors of said bank, on or 
 about July 3, 1826; and if so, from whom did you re- 
 ceive the list of directors for whom you voted? 
 
 " He answers, I did so vote. The proxies were brought 
 to me by a boy from the office of the Life and Fire In- 
 surance Company, enclosed in an envelope, directed 
 to me as cashier of the bank, in the handwriting of 
 Matthew L. Davis. Matthew Beed, I believe, furnished 
 me with a list of the names to be voted for, which I 
 think I had printed. I wished to have Henry Bemsen's 
 name on said list ; it was objected to, and, I think, by 
 
298 LIFE OF JACOB BAEKER. 
 
 Matthew L. Davis. It was not done. Mr. Davis told 
 me some persons interested in said stock objected to Mr. 
 Remsen. 
 
 " William P. Rathhone^ being sworn, and asked, Had 
 Mr. Barker any interest in, knowledge of, or agency 
 about, the purchase of four or five thousand shares of 
 Tradesmen's Bank stock, in the summer of one thousand 
 eight hundred and twenty-six, which was transferred to 
 your name? 
 
 ''He answers, None that I know of. 
 
 ''Being asked. Was Mr. Barker ever consulted as to 
 the selection or appointment of new directors of said 
 bank, which took place about that time? 
 
 "He answers, I never heard that he was, nor do I 
 believe that he was. 
 
 "Did you transfer eight hundred shares of Trades- 
 men's Bank stock to Seth Sturtevant, on or about the 
 12th day of July, one thousand eight hundred and 
 twenty-six ? 
 
 "He answers, I did. 
 
 "Being asked, Was it done at the request of Mr. 
 Eckford? 
 
 " He answers, It was. 
 
 "Being asked. Did you deliver to Mr. Barker cer- 
 tificates, in the name of Seth Sturtevant, for the said 
 eight hundred shares of stock ? 
 
 " He answers, I did, by the request of Henry Eckford. 
 
 "Being asked, Did you ever have any conversation 
 with Mr. Barker, in relation to said stock, prior to the 
 delivery of said certificates ? 
 
 "He answers. Not one word. 
 
 "Being asked. Had Mr. Barker any interest in the 
 exchange of the two thousand shares of Morris Canal 
 
LIFE OF JACOB BARKER. 299 
 
 stock, for the twenty-five hundred shares of Fulton 
 Bank stock, which took place in May, one thousand 
 eight hundred and twenty-six? 
 
 "He answers, None that I know of, except his com- 
 missions which might grow out of selling, buying, and 
 hypothecating the Fulton Bank stock. 
 
 "Being asked. Was not the exchange above spoken 
 of made expressly for the accommodation of the Life 
 and Fire Insurance Company? 
 
 "He answers, I so understood it. 
 
 "Being asked. Did you apply to Mr. Barker for 
 advice and assistance in the business, by the direction 
 of Mr. Eckford? 
 
 "He answers, Mr. Eckford directed, when he left 
 town, about the 7th of May, one thousand eight hundred 
 and twenty-six, that the Fulton Bank stock, which he 
 had previously agreed for, should be placed in the 
 hands of Mr. Barker when received; and I therefore 
 applied to him, as aforesaid, and delivered into his 
 hands the aforesaid two thousand shares of Fulton 
 Bank stock, transferred to Mr. Thurston, by the order 
 of Mr. Barker. 
 
 "Being asked. Had Mr. Barker, to your knowledge, 
 any thing to do with the issuing of the twenty-five 
 hundred shares of Morris Canal stock, as principal or 
 agent ? 
 
 " He answers. Not to my knowledge. 
 
 "Being asked. Did Mr. Barker, to your knowledge, 
 know that the Life and Fire bonds had been given for 
 the Morris Canal stock until after the same had taken 
 place ? 
 
 " He answers, Not to my knowledge. 
 
 " Being asked, Did you not, as a director of the 
 
300 LIFE OF JACOB BARKER. 
 
 Life and Fire Insurance Company, in common with the 
 officers and directors of that company, or such of them 
 as were then acting, authorize the issuing of bonds of 
 that company to the amount of two hundred and fifty 
 thousand dollars, in exchange for an equal amount of 
 Morris Canal stock, as a temporary loan for the accom- 
 modation of the Life and Fire ? 
 
 "He answers, I was not present when it was done, 
 but knew it was to be done, and approved of it, and 
 after it was done sanctioned it. 
 
 "Being asked. Did you not, as a director of the 
 Morris Canal and Banking Company, sign a resolution 
 in common with other directors, authorizing the issuing 
 of stock of that company in exchange for Life and Fire 
 bonds, with express reference to the said two hundred 
 and fifty thousand dollars of stock; and, if any, what 
 other security was understood to be given for its return ? 
 
 "He answers, I did, except it was uncertain whether 
 the stock would be wanted to the amount of one hundred 
 and fifty or two hundred and fifty thousand dollars at 
 the time I signed that resolution ; and it was my under- 
 standing that Henry Eckford, Esq., was to guarantee 
 the return of the Morris Canal stock, by which return 
 the said bonds would be cancelled and returned to the 
 Life and Fire Insurance Company. 
 
 "Being asked. Did you apply to Mr. Barker, in the 
 absence of Mr. Eckford, for advice in relation to the 
 phraseology of a contract or guarantee touching the ex- 
 change or return of said stock, and when ? 
 
 "He answers. According to my recollection, I called 
 on Mr. Barker on the morning of the 10th of May, one 
 thousand eight hundred and twenty-six, and asked him 
 to look at a paper which I Jiud previously draivn at the 
 
LIFE or JACOB BARKER. 301 
 
 office of the Life and Fire Insurance Company, and to 
 see if it sufficiently explained the object it professed. 
 Mr. Barker looked over it, and remarked it was a large 
 amount, was the guarantee of Mr. Eckford, who was 
 absent, and that a single word might make a variation 
 in its import, and suggested that a clause be added 
 allowing Mr. Eckford to return the stock in parcels, as 
 might suit the convenience of Mr. Eckford. As it was 
 then drawn, Mr. Barker stated, Mr. Eckford would be 
 obliged to return the whole stock together. Mr. Barker 
 wrote such clause at the bottom or on the back of said 
 paper, and I took said paper away. Witness says he 
 heard said paper read by Mr. Maxwell, the district 
 attorney, on the late conspiracy trials." 
 
 When the testimony was about closing, Mr. Biker 
 appeared before the master and made the following ex- 
 planations, which, in my opinion, afford no justification 
 for the sale of the bank to a concealed purchaser, much 
 less for withdrawing good notes to the amount of two 
 or three hundred thousand dollars, and leaving in lieu 
 thereof the checks of an irresponsible person who had 
 no money in the bank. 
 
 '•'■ Richard Riker again appears, and states that from 
 
 conversations with Mr. Reed about the time of the 
 
 agreement to sell the stock of the Tradesmen's Bank, 
 
 and frequently since, and even to this time, deponent is 
 
 firmly convinced that Mr. Reed fully believed that Mr. 
 
 Henry Eckford was the purchaser or principal purchaser 
 
 of the stock of said bank, agreed to be sold through 
 
 Mr. Reed, as hereinbefore testified by deponent. He is 
 
 so convinced because Mr. Reed assigned to deponent 
 
 several reasons why he thought Mr. Eckford to be such 
 
 purchaser, among which were that Mr. Eckford no 
 
 26 
 
302 LIFE OF JACOB BAEKEE. 
 
 doubt wished to increase his influence in the upper part 
 of the city, and that the control of the bank would 
 greatly enable him to do so ; and . he, deponent, thinks 
 Mr. Reed said it would be beneficial in his business. 
 The deponent believes that Mr. Reed also referred to 
 Mr. Eckford's business as connected with his ship- 
 yards. 
 
 "Deponent recollects very well that Mr. Reed men- 
 tioned that Mr. Eckford was ambitious. Mr. Reed has 
 frequently agreed with deponent that the stock of said 
 bank, if well managed by Mr. Eckford, under the ad- 
 vantages he possessed, might be made a nine per cent, 
 stock; and witness believes Mr. Reed had no doubt Mr. 
 Eckford was a very wealthy man. Deponent further 
 says that Mr. Reed has not only, as far as this depo- 
 nent know^s, spoken of Mr. Eckford as being the pur- 
 chaser, as he believed — though he never has said that 
 Mr. Eckford was the purchaser, of his own knowledge 
 — yet has at no time intimated, to deponent's know- 
 ledge, that any other person was said purchaser. And 
 deponent is fully satisfied that Mr. Reed, as well as this 
 deponent, has frequently declared that Mr. Barker had 
 nothing to do with said purchase, as he or this deponent 
 knew or believed; and, as an additional reason, Mr. 
 Gouverneur, according to the best of this deponent's 
 recollection and belief, in open court, on the first trial, 
 or subsequent to the conspiracy case, testified that Mr. 
 Barker had nothing to do with the purchase of the 
 stock of the Tradesmen's Bank. And this deponent 
 further says that it is his present belief, and that depo- 
 nent has never concealed from any one the fact, that 
 the deponent believed Mr. Eckford to be the purchaser, 
 and that Mr. Barker had nothing to do with said pur- 
 
LIFE OE JACOB BARKER. 303 
 
 chase, though deponent must acid that he has never 
 been distinctly informed by Mr. Reed who was the pur- 
 chaser. Mr. Rathbone attended at the bank and re- 
 ceived the transfer of deponent's stock. The witness 
 conceived Mr. Rathbone to be the agent of Mr. Eckford, 
 and that, among other things, greatly confirmed depo- 
 nent in the belief that Mr. Eckford was the purchaser." 
 The following persons, who were concerned in manag- 
 ing the business of the companies said to have been de- 
 fra/uded, were also examined in the said chancery suit; 
 they, one and all, testified that Mr. Barker had not had 
 any agency or concern therein : — William Bayard, David 
 B. Ogden, Abraham Ogden, S. L. Gouverneur, J. J. Boyd, 
 Matthew L. Davis, Thomas Vermilyea, Wm. P. Rath- 
 bone, James T. Tallman, Jacob Clinch, George W. 
 Browne, Mark Spencer, Horatio Kingsland, Geo. W. 
 Gantz, and Richard Gilchrist. 
 
 \ 
 
 'i 
 
 A perusal of the testimony elicited in the chancery 
 suit, after the termination of the "conspiracy trials," 
 will satisfy the reader as to their true character. It 
 establishes, — 
 
 1st. That Jacob Barker was to be offered up as a 
 victim for the supposed errors of others. 
 
 2d. That Hugh Maxwell, the district attorney, de- 
 prived him, in the most illegal and arbitrary manner, 
 of papers which established his freedom from offence. 
 
 3d. That Hugh Maxwell had those papers in court 
 during the trial, denying that he had them, and not only 
 refused Mr. Barker the benefit of their use, but kept 
 them long after the trials were all over, and, when 
 ordered by the court of chancery to produce them, re- 
 -fused to obey the mandate of the court. ^^ 
 
304 LIFE OF JACOB BARKER. 
 
 4tli. That tlie grand jury were induced to deprive 
 Mr. Barker of his papers by the positive promise of 
 Huo;h Maxwell that he should have the benefit of their 
 use on the approaching trial, he asserting that it was 
 the duty of the grand jury, whether they found a bill 
 or not, on the complaint of Mr. Barker, to retain the 
 papers to go before the next grand jury; that they 
 would always be safe on the files of the court, where 
 either party could have access to them. 
 
 5th. That the excuse oifered by the district attorney 
 for refusing to produce them on the trial of Mr. Barker, 
 namely, that he forgot the papers were in his possession, 
 was of the most extraordinary character. Mr. Hatfield 
 stated, on his oath, that during the trial, being called 
 on by Mr. Barker for his papers, he applied to Maxwell 
 for the letters of Mr. Eckford, which he (Maxwell) took 
 from the file of the court, of which he (Hatfield) was 
 clerk. That Maxwell admitted to him in court, at the 
 very time they were called for, that he had them, 
 although when first charged by Mr. Hatfield with having 
 them he denied it. 
 
 6th. That the district attorney considered himself so 
 far above the law that he dispossessed himself of those 
 documents, after he was served with a process from the 
 court of chancery to produce them, and otherwise dis- 
 obeyed the mandate of the court, to escape from which 
 he placed them in the ofiice of the clerk of the court 
 where the conspiracy trials took place. This disposition 
 of the papers was after his difficulties with Mr. Eckford 
 had been renewed, and after it became public that he 
 had received $300 from that gentleman. 
 
 These papers falsified his declaration that "Mr. Eck- 
 ford had been the victim of others." 
 
LIFE OF JACOB BARKER. 305 
 
 8tli. That Hugh. Maxwell accepted of money from 
 "indicted but untried and unacquitted individuals." 
 The professed object may have been to conduct civil 
 suits for these "indicted but untried and Unacquitted 
 individuals:" yet these "indicted but untried and unac- 
 quitted individuals" were not either of them brought to 
 > trial after the receipt of their money. 
 The district attorney promised to say to his acquaint- 
 ances "that Mr. Eckford had been the victim of others," 
 and that he would on all proper occasions, both public 
 and otherwise, state it as his opinion that he considered 
 that Mr. Eckford was justly entitled to the same degree 
 of confidence in society that he enjoyed at any former 
 period, and that he had full confidence in his integrity 
 and honor. 
 
 Mr. Eckford demanded a certificate to that efi*ect, 
 which Mr. Maxwell refused to sign, saying, in a letter 
 addressed to him, under date of 27th November, 1827, 
 "The circumstances to which I alluded, as inducing the 
 belief that you had been the victim of individuals who 
 had abused your confidence, may, when more severely 
 examined, admit of a less charitable construction." 
 
 Mr. Eckford, failing to induce Maxwell to put his 
 often-repeated declaration on paper over his signature, 
 demanded personal satisfaction, which being refused, 
 \ he published him in the following terms: — 
 
 "New York, Tuesday Evening, December 18, 1827. 
 
 "Sir: — Your real character is at length unmasked. 
 You have exhibited yourself as a man wholly destitute 
 of truth and honor, and have, in addition, proved your- 
 self a contemptible poltroon. 
 
 " You can only be noticed in future, by gentlemen, 
 
 26* 
 
306 LIFE OF JACOB BARKER. 
 
 as a cowardly retailer of falsehoods, and as the pitiful 
 tool of other artful and vindictive miscreants. 
 
 "Henry Eckford. 
 "Hugh Maxwell, iVezi; YorJc.'' 
 
 The "New York American," of the 21st of December, 
 1827, says that Hugh Maxwell, the district attorney, 
 had Mr. Eckford taken up for sending a challenge, and 
 William T. McCowen and John P. Decatur, his accom- 
 plices, bound over to keej) the peace. 
 
 Colonel Decatur took the message to Maxwell from 
 Mr. Eckford, demanding satisfaction for his faithless- 
 ness. The colonel returned, reporting that Maxwell had 
 replied that Mr. Eckford had better remember that he 
 paid me three hundred dollars to procure the conviction 
 of Barker and be quiet. "No," says Eckford, "pro- 
 claim it to the world. I gave him the money as the 
 unarmed traveller, with a pistol at his breast, hands his 
 purse to the highwayman." Thus the report came first 
 to my knowledge, when I immediately addressed to 
 Maxwell a letter, in words and figures following : — 
 
 ♦'New York, January 1, 1828. 
 
 " Sir : — Colonel Decatur stated, that when he called 
 on you in behalf of Mr. Eckford, you told him that you 
 had received three hundred dollars from Mr. Eckford to 
 aid in the late prosecution of Jacob Barker. 
 
 "This statement becoming public led to an inquiry 
 of Mr. Eckford if he had joined in a plan for my 
 conviction. He assured me that, although he did write 
 you a letter enclosing three hundred dollars in January 
 last, (which you know was immediately after the illegal 
 
LIFE OF JACOB BARKER. 807 
 
 verdict,) and although jon did receive the money and 
 did keep it, yet that the object of sending it has been 
 misrepresented. The letter in which the money was en- 
 closed, now in your possession, may explain the true 
 object for which the money was paid. Will you please 
 furnish a copy for publication? Mr. Eckford says he 
 has no objection. After you heard all the testimony on 
 the trial, you made a most inflammatory speech against 
 Mr. Eckford, and in resisting his motion, in December, 
 to have his trial postponed, you stated that the offended 
 laws required that there should be no delay; but, after 
 the receipt of the three hundred dollars, you stated that 
 '■ he was made the victim of persons who abused his con- 
 fidence,' and did not bring on his trial. The source 
 of revenue to yourself was cut off by Mr. Eckford 
 having been placed beyond your reach by a 230wer above 
 your control ; since which you said, in a letter addressed 
 to him, under date of the 27th of November last, 'The 
 circumstances to which I alluded, as inducing the belief 
 that you had been the victim of individuals who had 
 abused your confidence, may, when more severely ex- 
 amined, admit of a less charitable construction.' 
 
 "You having thus taken back your friendly declara- 
 tions, the motive no longer exists which induced you, in 
 the most arbitrary manner, to get possession of my four 
 letters from Mr. Eckford, and to withhold them in viola- 
 tion of your solemn promise to the grand jury, and to 
 say when they were applied for to be used in a case 
 more imiportant to me THAN LIFE, Hhat you had them 
 not^' ivhen you had them. The motive, I repeat, no 
 longer exists; as those letters prove, in distinct terms, 
 that the part I acted was by Mr. Eckford's direction 
 and at his request, and fully contradicted the impres- 
 
808 LIFE OF JACOB BARKEJR. 
 
 sion intended to liave been made at the time referred 
 to, when you used my name to Colonel Decatur, and, 
 consequently, when you said that Mr. Eckford had 
 been made the victim of persons who abused his confi- 
 dence. You will, therefore, be pleased to return the 
 said letters to me without further delay : they are wanted 
 to be used in an investigation now going on in the court 
 of chancery. 
 
 ^'Your obedient servant, 
 
 "Jacob Barker. 
 "Hugh M-AX'welJj, Distinct Attorney/." 
 
 To this letter no reply was made ; but, on or about the 
 same day. Maxwell, after having kept the money about 
 eleven months, attempted to return it to Eckford. 
 Eckford refused to receive it, when, as I was informed 
 and believe, Maxwell took it to the United States 
 Branch Bank, New York, and deposited it to the credit 
 of Eckford, where it remained when Mr. Barker last 
 heard of it. 
 
 CHAPTER XXL 
 
 PUBLIC MEETING AT THE NEW YORK EXCHANGE, IN 
 
 WALL STREET. 
 
 Mr. Barker having gotten possession of the afore- 
 said proofs, called a public meeting at the New York Ex- 
 change, in Wall Street, which was very numerously at- 
 tended, to whom he exhibited the documents. 
 
LIFE OF JACOB BARKER. 309 
 
 On the discovery of the records in the handwriting 
 of Richard Riker, the Recorder, of the proceedings of 
 those who divided the $84,000, the editor of the "New 
 York American" remarked thus : — 
 
 ^'disclosure of the real parties to the purchase 
 and sale of the tradesmen's bank, in 1826. 
 
 "Under this title, Mr. Jacob Barker has printed a 
 pamphlet of thirty-six pages, with a view to exonerate 
 himself from the imputation pressed very heavily against 
 him on the conspiracy trials of having been concerned 
 in this (w^e must call it nefarious) transaction. This 
 pamphlet we have read with attention ; and, as an act 
 of justice to one whom we have not, we confess, viewed 
 or spoken of with any partiality, though certainly not 
 with any feelings of personal hostility, we are bound to 
 say that Mr. Barker completely and entirely exonerates 
 himself from any agency in or knowledge of what, as 
 here exposed, appears to us a most gross and abomina- 
 ble proceeding on all hands. 
 
 "Mr. Barker, as to himself, satisfactorily establishes 
 an alibi. He w^as not in New York, but at Nantucket, 
 for many days before and during the negotiation that 
 led to this sale. But not only does he prove his ow^n 
 entire innocence and ignorance of this matter, but he has 
 been the instrument of bringing to light such evidence 
 concerning the real nature of, and actors in, this whole 
 operation as must cover the latter with infamy, and in the 
 case of Mr. Recorder Riker, who was a principal one, must, 
 w^e would fain hope, drive him from the station which 
 he dishonors. In regard to this functionary, however, 
 and his agency in this affair, we shall have occasion to 
 
310 LIFE OF JACOB BARKER. 
 
 speak again. At present our business is to do justice 
 in the transaction in question to Mr. Barker; and we 
 accordingly have as much satisfaction in expressing our 
 conviction that on this head he has been unjustly ac- 
 cused and censured, as we always feel a pain when a 
 sense of duty compels us at any time to deal in ani- 
 madversion and reproach." 
 
 CHAPTER XXII. 
 
 CHANCERY SUIT AND ITS DISCLOSURES. 
 
 Mr. Barker was indebted to Mrs. Josiah Headen for 
 discovering the conspiracy to make him the victim of the 
 guilty party. It was concocted, in other words, in her 
 presence, or within her hearing: she mentioned it in 
 confidence to some female friends, from whom it reached 
 Mr. Barker. Having got the scent, he traced the various 
 ramifications until he thought he had sufiicient proof to 
 cage the game, when he presented the case to the grand 
 jury. It was the last day but one of their term of 
 service. Maxwell insisted on being present ; Barker 
 objected; they sustained his objection, and excluded 
 Maxwell. They had a special afternoon session to inves- 
 tigate the subject; they determined that there was 
 not sufiicient time; notified Barker and Maxwell that 
 
LIFE OF JACOB BARKER. 311 
 
 the case must go over to the next grand jury. Max- 
 well demanded the papers; — Barker objected, told the 
 grand jury that Maxwell's object was to get hold of 
 them to protect the other indicted but untried indi- 
 viduals whom he had promised, on conditions, to let off, 
 that they were all-important for his (Barker's) defence. 
 He promised the grand jury that Barker should have 
 the benefit of them on the trial. Barker replied, that 
 if Maxwell got them they would not be ever again seen. 
 The grand jury told Barker they would return them to 
 him if he would withdraw the complaint. He replied, 
 he never would do that. They then said they must re- 
 turn them to the court to be presented to the next grand 
 jury, proceeded to the court and handed them to the 
 clerk. Maxwell followed and took them from the clerk 
 before he had time to take a list of them, and was about 
 leaving the court-room, when the clerk called him back 
 from the door that he might make a memorandum of 
 what they were. He did so. Among the number there 
 were six letters from Henry Eckford addressed to Mr. 
 Barker, which he retained until long after all the trials 
 for conspiracy had terminated, without presenting them 
 to the next or to any other grand jury. 
 
 In the progress of the chancery suit, Mr. Barker re- 
 quired the attendance of Maxwell and the production 
 of the papers. He appeared, refusing to answer many 
 of the questions propounded by Barker, and took ad- 
 vantage of a witness's right to have them reduced to 
 writing; for which purpose the case was adjourned, and 
 Maxwell refused to attend again, and left the city; on 
 which account his attendance could not be compelled. 
 He had been required to produce these letters. Among 
 the questions answered, he said he had delivered them 
 
812 LIFE OF JACOB BARKER. 
 
 to the clerk of the court, — observe, not to the clerk of 
 the court of oyer and terminer, — "the clerk being, in 
 the opinion of witness, the proper officer to produce 
 papers." Had they been produced on the conspiracy 
 trials, the clerk of the court of oyer and terminer would 
 have been the proper custodian. 
 
 Had they been returned to Mr. Hatfield before the 
 service of the subpoena duces tecum from the master in 
 chancery, he would have been the proper person. Not 
 having done so, it was his duty to have produced them 
 to the master. 
 
 When the last conspiracy trial came on, a subpoena 
 duces tecum was served on Maxwell to attend as a wit- 
 ness and produce those papers. He attended, and said, 
 in the language of the Supreme Court in the case of the 
 people vs. Jacob Barker and others in 1827, " he had 
 them not, when he had them." 
 
 When these papers were produced in the chancery 
 suit by Mr. Hatfield, clerk of the court of general ses- 
 sions, there was among them a seventh letter from Mr. 
 Eckford, not addressed to Mr. Barker, which he had not 
 ever seen ; it bore an endorsement in the handwriting 
 of Mr. Eckford's counsel, which Maxwell, in his great 
 haste to get rid of them, in contempt of the master's 
 notice to produce the papers delivered to Mr. Hatfield, 
 unintentionally including the seventh letter. 
 
 These disclosures should have admonished Maxwell 
 and Rathbone not to have appeared again in New York; 
 they should have consigned them, with Leavitt, to the 
 contempt of all honest men. 
 
 They clearly established, — 
 
 1st. Who the parties were to the great fraud against 
 
LIFE OF JACOB BARKER. 313 
 
 the Tradesmen's Bank in which Rathbone figured promi- 
 nently. 
 
 2d. Who the parties were that appropriated the funds 
 of the Fulton Bank on worthless securities: among the 
 number a draft on a country bank for thirty thousand 
 dollars, where there were not any funds to pay it, with 
 instructions (unknown to the directors) to the teller 
 to count it as cash, but not to forward it for collection; 
 and who flooded the market with stock of that bank, 
 certifying it to be full stock, for which worthless securi- 
 ties had been received in lieu of money. In this Bath- 
 bone was a prominent actor. 
 
 3d. The names of those who issued two hundred 
 and fifty thousand dollars of full stock of the Morris 
 Canal and Banking Company on worthless securities. 
 Bathbone was also a prominent actor in this mat- 
 ter. 
 
 4th. That Jacob Barker was not in the State of New 
 York when the fraud was committed on the Tradesmen's 
 Bank, and that he was not a party to, interested in, or 
 knowing of, either or any of them. 
 
 5th. That when Maxwell discovered these facts, and 
 who the real parties were, he did not pursue the guilty 
 individuals. 
 
 6th. That Leavitt gave false testimony, knowing it 
 to be false, when he was under oath to tell the truth. 
 
 Some years since, Mr. Barker met in Wall Street an 
 individual whom he did not recognize. He presented 
 his hand to Mr. Barker, saying, "My name is Abraham 
 B. Mead. I am glad to see you, and have to remark 
 that you were all right and I was all wrong, in relation 
 to the former difficulties between us." 
 
 Gratifying as the aforesaid disclosures have been to 
 
 27 
 
314 LIFE OF JACOB BAEKER. 
 
 Mr. Barker, tliej do not restore to him the two hun- 
 dred and fifty dollars fine wrongfully imposed for having 
 published facts in relation to Mr. Mead; two hundred 
 and fifty dollars for having published facts in relation 
 to Mr. Hatfield; nor the one hundred dollars for having 
 told Leavitt in court, after he had contradicted himself 
 and sworn falsely on many points, that he had impeached 
 himself. But truth will conquer at last ; and inno- 
 cence, suffering wrongfully, can await the issue. 
 
APPENDIX. 
 
 DEATH OF LIEUTENANT WILLIAM H. ALLEN. 
 
 ' Very soon after this trial, Mr. Barker was called upon 
 to mourn the untimely death of his friend, Lieutenant 
 William H. Allen. 
 
 ^'Lieutenant William Howard Allen, whose enviable 
 reputation is the common property of the nation, was 
 born in the city of Hudson, on the 8th of July, 1790. 
 
 ''He possessed strong and Aagorous intellectual 
 powers, and he mastered the sciences with ease and laid 
 a solid foundation for future usefulness. He always 
 ^^availed himself of every opportunity that offered for 
 distinguishing himself, and as occasion required he 
 evinced both skill and courage. He was appointed a 
 midshipman in 1808, and served on the gun-boats, ships 
 Chesapeake and United States. In 1811 he obtained a 
 furlough, and made a voyage to Archangel in command 
 of the ship Rodman. On the approach of war he re- 
 turned to the United States service, — was promoted to 
 the second lieutenancy in 1812, when he entered on 
 board of the Argus. Her cruise continued prosperous 
 until she came in conflict with the British sloop-of-war 
 
 315 
 
316 LIFE OF JACOB BARKER. 
 
 Pelican. Altlioiigh^this vessel was superior to her in 
 burden, men, and metal, yet the battle was long, severe, 
 and bloody. Early in the action, Captain William 
 Henry Allen was mortally wounded and carried below : 
 shortly after, the first lieutenant, William H. Watson, 
 was severely wounded, and taken to the wardroom. 
 The command of the Argus then devolved on Lieu- 
 tenant William Howard Allen ; his conduct was cool, 
 deliberate, and such as received the admiration of the 
 crew and the approbation and praise of his superior 
 ofiicers. After fighting was useless, the Argus was 
 surrendered to the Pelican, a perfect wreck. This was 
 on the 13th of August, 1813. Lieutenant Allen was 
 taken to Ashburton, England, where he was detained 
 eighteen months a prisoner of war. In 1817, he was 
 promoted to a first lieutenancy, and served on frigates 
 United States, Independence, Columbus, and Congress. 
 He sailed as first lieutenant of the latter in 1819 to the 
 China seas. She returned in 1821, and he was ap- 
 pointed to the command of the Alligator in 1822. 
 Sailed from New York on the 3d of August of that 
 year, on a cruise against the pirates, in which he 
 plucked a wreath of glory, but the shaft of death was * 
 in it. 
 
 "On his arrival at Havana, he was informed that a 
 gang of pirates, having in possession some merchant- 
 vessels, had stationed themselves in the Bay of Le 
 Juapo, in the neighborhood of Matanzas. Without 
 coming to an anchor, he immediately proceeded in 
 search of them. He approached the place, saw the 
 pirate vessels, three in number, well armed and supplied, 
 and manned with a hundred or more of these despera- 
 does, with the bloody flag waving aloft and nailed to 
 
LIFE OF JACOB BARKER. 317 
 
 the mast. In possession of these outhiws were five 
 merchantmen and several American citizens ; this pro- 
 perty, and these citizens, the gallant Allen determined 
 to rescue. The Alligator, in consequence of the shoal- 
 ness of the water, could not approach them ; he ordered 
 the boats to be manned with about thirty of his crew, 
 put himself in the van, and led the attack and boarded 
 them. The outlaws resisted, but were driven from their 
 flag-vessel, of which he took possession. They fled to 
 the other vessels; he pursued them amidst a shower of 
 •musketry; a musket-ball struck him in the head, still 
 he pressed forward, cheering his men, and when about 
 to board them, another pierced his breast; this was 
 mortal ; still he cheered his gallant little crew as they 
 lifted him on board of the prize schooner and laid him 
 on the deck he had so dearly won, and he died of his 
 wounds about three hours after. He called his officers 
 about him, gave directions respecting the prizes, — for 
 the merchant-vessels had been rescued, — conversed 
 freely and cheerfully ; hoped that his friends and his 
 country would be satisfied that he had fought well. He 
 said he died in peace w^ith the world, and looked for his 
 reward in the next. Although his pain, from the nature 
 of his wounds, was excruciating, yet he did not com- 
 plain, but died like a martyr, without a sigh or a groan, 
 and the spirit of a braver man never entered the unseen 
 world. The body of the martyred Allen was conveyed 
 to Matanzas, in Cuba, where it was interred on the 
 11th ]!^ovember, 1822, with the honors due to his dis- 
 tinguished merit. 
 
 "Soon after the reception of this sad intelligence at 
 Hudson, — which cast a gloom over the city, — the citi- 
 zens of Hudson assembled at the city hall ; and it was 
 
 27* 
 
318 LIFE OF JACOB BAEKEE. 
 
 a more mimerous meeting than had ever been witnessed 
 in that city. This was on the 5th of December, 1822, 
 and on motion of Elisha Williams, the honorable Alex- 
 ander Coffin was called to the chair, and on motion of 
 Ambrose L. Jordan, Esq., Br. Samuel Yv'hite was ap- 
 pointed secretary. The Reverend B. F. Stanton 
 opened the meeting with an appropriate and impress- 
 ive prayer. The Hon. James Strong then pronounced 
 a splendid eulogy on the character of the late gallant 
 Lieutenant William Howard Allen. 
 
 I "The common council of the city of Hudson re- 
 quested of the Navy Department to have the remains 
 of Lieutenant Allen brought from Matanzas to New 
 
 I \ York in a public vessel. This request was promptly 
 
 •" acceded to by the Secretary of the Navy, and, on the 
 15th of December, 1827, the schooner Grampus arrived 
 at New York, having on board the remains of the 
 lamented hero. On the reception of this intelligence, 
 the common council of the city of Hudson deputed Mr. 
 Reed, former mayor of this city, and Mr. Edmonds, the 
 recorder, to receive and bring them to his native city. 
 On the Wednesday following, they were Removed from 
 the navy-yard at Brooklyn, under the escort of the 
 marine corps of that station, and accompanied by Com- 
 modore Chauncey and a numerous body of naval officers. 
 The colors at the yard and at New York were at half 
 mast, and the procession landed at New York amid the 
 firing of a salute from the Grampus, which had been 
 
 ■ moored in the stream for that purpose. At New York 
 the procession was joined by the common council of 
 that city, and an immense concourse of citizens and 
 officers, and moved across the city to the steamboat, 
 which carried them to Hudson. There a salute was 
 
LIFE OF JACOB BARKER. 319 
 
 jBi'ed by a detachment of artillery, and by the marine 
 corps, and the remains were delivered by Commodore 
 Chauncey to the Hudson deputation. His remains 
 were accompanied to Hudson by the following officers 
 of the navy, — Lieutenants Francis H. Gregory, George 
 N. Hollins, William D. Newman, John R. Coxe, John 
 Swartwout, and Alexander M. Mull, Sailing-master 
 Bloodgood, and Midshipmen Lynch, Nichols, Schermer- 
 horn, LaAvrence, and Pinckney, — and arrived early on 
 Thursday morning. They were welcomed by a national 
 salute, and were escorted to the dwelling of Captain 
 Alexander Coffin, the patriotic kinsman of the lamented 
 hero, by a detachment of military, and a numerous 
 escort of citizens, which moved in the following order : — 
 
 "Hudson City Guards. 
 " Columbia Plaids. 
 "Athens Lafayette Guards; 
 "And the military under the command of Colonel 
 William A. Dean, with standards furled 
 and drums muffled. 
 "The Reverend Clergy. 
 "The Corpse, 
 "Borne by Lieutenants Gregory, Hollins, Newman, 
 Coxe, Swartwout, and Mull, and Midship- 
 men Lynch and Nichols. 
 "Mourners, including Messrs. Bloodgood, Schermer- 
 horn, Lawrence, and Pinckney, of the 
 United States Navy. 
 "Hudson Military Association. 
 "Brigadier-General Whiting and his suite. 
 " The Mayor and Recorder. 
 "Aldermen. 
 
320 LIFE OF JACOB BAEKER. 
 
 " Assistant Aldermen. 
 
 *' Clerk and Marshal of the city. 
 
 " Clerk and Sheriff of the county. 
 
 " Committee of Arrangements. 
 
 "Followed by a larger and more respectable proces- 
 sion of citizens than had for many years been wit- 
 nessed in that city. While the procession moved, the 
 bells of the city were tolled, and minute-guns were fired 
 from Parade Hill. On its arrival at the graveyard, the 
 body w^as conveyed in front of the line of the military 
 resting on arms reversed, and was committed to the 
 earth near the grave of Lieutenant Allen's mother. 
 The funeral service w^as read by the E,ev. Mr. Stebbins, 
 and a volley fired over the grave by the military. The 
 procession then returned to the United States Hotel, 
 where it was dismissed. 
 
 "At three o'clock, p.m., the naval officers sat down 
 to a public dinner given them by the citizens, at which 
 about one hundred of the most respectable citizens were 
 present. 
 
 " The evening was spent at the hospitable mansion of 
 Colonel Livingston. On Friday the officers paid their 
 respects to the mayor, and departed amid the roar of 
 cannon, with the heartfelt gratitude of the whole city 
 for their generous attention on this occasion. 
 
 "The following correspondence passed between the 
 officers of the navy and the committee : — 
 * 
 
 " ' Hudson, December 21, 1827. 
 
 "'The officers of the navy assembled on the present 
 melancholy occasion, reciprocating the sentiments ex- 
 pressed by the citizens of Hudson, return their thanks 
 
LIFE OF JACOB BARKER. 321 
 
 for the unparalleled tribute paid to the memory of 
 their late gallant associate. They at the same time 
 return their acknowledgments for the liberal hospitality 
 which has characterized the whole proceeding, and, in 
 departing, beg leave to say that, whether applied to the 
 individual or professional standing of their departed 
 member, the conduct of the citizens is alike honorable 
 to their feelings and principles as men and patriots. 
 Laboring under emotions too powerful to be conveyed 
 in adequate language, they tender the committee a 
 grateful and affectionate farewell.' 
 
 " 'Hudson, December 21, 1827. 
 
 "'The committee of the citizens of Hudson, in 
 acknowledging the favor of the officers of the navy 
 assembled on this occasion of paying the last honors to 
 the memory of the lamented Allen, gladly avail them- 
 selves of this opportunity to assure those gentlemen of 
 the high sense entertained by this whole community of 
 the obligation conferred upon them by the attendance 
 of individuals deservedly distinguished for their public 
 and private worth. As the committee cannot entertain 
 a doubt that the lives of those officers of the navy will 
 be as honorable, so they cannot help but hope that 
 their deaths will be as glorious and their memories as 
 much respected, as those of the gallant and unfortunate 
 William Howard Allen. 
 
 "'By order of the committee. 
 
 "' David West, (7teVwan. 
 
 "'William A. Dean, Secretary,' " 
 
 The citizens of Hudson, who have always been dis- 
 
322 LIFE OF JACOB BAEKER. 
 
 tinguislied for tlieir liberality and patriotism, erected 
 in 1833 a splendid monument to his memory. 
 
 Thus ended the career of one whose merits as a 
 citizen, son, brother, friend, and officer have never been 
 excelled and rarely equalled. 
 
 Before the trial of the indictment. Lieutenant Allen 
 sailed in command of the United States vessel of war 
 Alligator, in pursuit of the pirates who then infested 
 the West Indies, and was killed in 1822 by a shot from 
 a piratical boat when pursuing them at the head of his 
 boats' crew, inside a reef on which there was not suffi- 
 cient water for the Alligator to pass. 
 
 The following lines, from the pen of Halleck, com- 
 memorate his lamented fate : — 
 
 " He hath been mourn'd as brave men mourn the brave, 
 And wept as nations weep their cherish'd dead, 
 With bitter, but proud tears, and o'er his head 
 The eternal flowers whose root is in the grave, 
 The flowers of fame are beautiful and green; 
 And by his grave's side pilgrim feet have been, ^ 
 
 And blessings, pure as men to martyrs give, 
 Have there been breathed by those who died to save. 
 Pride of his country's banded chivalry, 
 His fame their hope, his name their battle-cry ; 
 He lived as mothers wish their sons to live, 
 He died as fathers wish their sons to die. 
 If on the grief- worn cheek the hues of bliss, 
 Which fade when all we love is in the tomb. 
 Could ever know on earth a second bloom. 
 The memory of a gallant death like his 
 Would call them into being — but the few, 
 Who as their friend, their brother, or their son, 
 His kind, warm heart and gentle spirit knew. 
 Had long lived, hoped, and fear'd for him alone ; 
 His voice their morning music, and his eye 
 The only starlight of their evening sky, 
 
LIFE OF JACOB BAKKER. 323 
 
 Till even the sun of happiness seem'd dim, 
 And life's best joys were sori'ows but with him ; 
 And when — the burning bullet in his breast — 
 He dropp'd, like summer fruit from off the bough, 
 There was one heart that knew and loved him best: — • 
 It was a mother's, — and is broken now." 
 
 MR. BARKER AND THE FREE NEGROES OF NEW 
 ORLEANS. 
 
 Before his removal to the South, Mr. Barker had 
 always taken a deep interest in the welfare of that un- 
 fortunate class, the free negroes of the North, and was 
 recognized by them as one of their best friends, and 
 one to whom they could always resort for advice and 
 assistance. On taking up his residence in New Orleans, 
 he found there many free people of color, who were 
 treated, as he thought, with great harshness, under the 
 existing laws and customs. Mr. Barker interposed on 
 their behalf, and publicly advocated their cause. This 
 interposition, on his part, led to the following publi- 
 cation : — ^ 
 
 "to the public. 
 
 "My opinions and conduct having been grossly mis- 
 represented, I beg to be allowed to speak for myself. 
 All my exertions have been, and will continue to be, 
 confined to sending out of and keeping away from the 
 
824 Lli'E OF JACOB BARKER. 
 
 State free men of color. This, when properly considered, 
 will be approved by every slave-holder. 
 
 '' On the 3d July instant, I wrote to a gentleman at 
 Philadelphia, who had employed me to present to court 
 the proof of the freedom of a man confined in prison, 
 as follows : — 
 
 ^'^You should publish in the newspapers, and other- 
 wise admonish all free people of color to keep away 
 from this place, and especially if they have had their 
 freedom established here they should keep away, as all 
 such persons are notified to quit the State within sixty 
 days, and if they remain or return again after the sixty 
 days, but for an hour, they are sent to the penitentiary 
 for twelve months, and then ordered to quit in thirty 
 days, and if they remain, or return again after the thirty 
 days, they are sent to the penitentiary for life. 
 
 '"There is no safety for free men of color not born 
 here, or here before 1825, but to keep away from this 
 place. This community is justly afraid of their con- 
 taminating influence on the slaves, and they cannot be 
 permitted to mingle with each other; and while I shall 
 at all times be willing to aid in securing to free men the 
 exercise of their just right, without regard to color, I 
 advocate all constitutional and legal measures for keep- 
 ing free people of color away from slave-holding States. 
 I think their friends in yourl:^uarter cannot do them a 
 better service than to admonish them not to come here.' 
 
 ''My conduct has always corresponded with these 
 opinions. I have not, in the whole course of my life, 
 to my recollection, written or said a word, in or out of 
 court, at variance therefrom. 
 
 " When admitted to appear in the courts of Louisiana, 
 
LIFE OF JACOB BARKER. 325 
 
 the laws of the Sttite, as well as mj duty, imposed the 
 obligation of fidelity to my clients; and it is strange 
 that any one should complain of my having complied 
 with the requisites of that obligation. It must have 
 been misrepresentation that has led them to do so. 
 
 ''If any man feels aggrieved, he has but to point out 
 in what particular, and I will afi'ord him all the satisfac- 
 tion in my power ; when he will discover that he had 
 no just cause of complaint. 
 
 "Why pass laws protecting free men of color, if it is 
 to be considered wrong for counsel to appear in their 
 behalf? No one will pretend that they are capable of 
 maintaining in court their own rights. And if they 
 were, they — at work in irons on the highway — could 
 not get their cases before the court with the proper 
 proofs. 
 
 "It may be here proper for me to state, for the in- 
 formation of the public, some of the many facts which 
 have come to my knowledge in relation to the treatment 
 of free men of color in the prison of the Second Muni- 
 cipality. Having occasion to visit that prison, very 
 many prisoners poured forth their complaints through 
 the grates as I was passing through the road, declaring 
 themselves free, that they were unlawfully detained and 
 kept at work on the highway in chains. It would have 
 been inhuman to have turned a deaf ear. Many of 
 them appeared to be so white as for the law to presume 
 them free. I immediately represented the case to his 
 honor the recorder, who had six of them brought up, 
 and pronounced five of them free, from their com- 
 plexion, without argument and without requiring any 
 
 28 
 
826 LIFE or JACOB BARKER. 
 
 other testimony; and on my inquiring why they had 
 not been liberated the morning 'after their arrest, their 
 degree being as visible then as at any other time, hi;3 
 honor replied that they bad been placed in the chain- 
 gang by the officers of the prison without having them 
 brought up before him for examination. Was it wrong 
 to interfere in behalf of these men ? 
 
 '^ Public justice, as well as every principle of humanity, 
 requires that prisoners, however great their offence, 
 should have free communication with their counsel. 
 
 '* On two occasions I was denied all access to prisoners 
 in the Second Municipality, in whose defence I had been 
 requested to assist, on the plea that no such persons 
 were confined. After many months' perseverance, by the 
 aid of his honor the recorder, I had an interview with 
 one of them, and the only excuse offered for his con- 
 cealment was that I had inquired for Charles Chandler, 
 when his name was Charles C. Chandler ; and by the 
 aid of his honor the mayor, with the other after less 
 delay: the excuse for his concealment was that I in- 
 quired for James Lloyd Warner, when they had him on 
 the prison-books only by the name of Warner. Are 
 such practices to be tolerated in this enlightened age? 
 There was not any pretence that either of these men 
 was a slave. 
 
 '' On a recent occasion, I was informed that a colored 
 man, born in my native State, Maine, of free parents, 
 was in the chain-gang at work on the highway; had 
 been there since September last, although the driver 
 of the gang knew him to be free, was born in the same 
 town, went to school with him, and had known him from 
 his childhood. I communicated these facts to his honor 
 
LIFE OF JACOB BARKER. 32T 
 
 the recorder ; he had the matter promptly inquired into, 
 and the man liberated, but without a penny's compen- 
 sation for nine months' services improving the Second 
 Municipality. 
 
 "At the prisons of the First and Third Municipality I 
 have been treated with the greatest politeness, and 
 every facility afforded by the officers and keepers in 
 bringing the law to the relief of the prisoners. 
 
 "Again, it was the practice unlawfully to retain pri- 
 soners in the Second Municipality for their board, doc- 
 tor's bills, &c., after their freedom had been established, 
 until I brought the matter before a higher court ; and, 
 on one occasion, without crediting on the account ren- 
 dered the money taken from him when arrested. The 
 public will please to observe that the rule in the Second 
 Municipality was to allow prisoners three picayunes a 
 day for such days as they labor on the public road, and 
 to charge three picayunes a day for their board, in addi- 
 tion to the clothing supplied, the doctor's bills, &c. 
 Hence, as they cannot labor on Sundays, holidays, or in 
 stormy weather, they are brought in debt as soon as 
 confined, the amount of which is augmented weekly, 
 and, as these men seldom have money, and have no 
 means of earning any during their confinement, their 
 simple arrest, without being charged with the slightest 
 offence, would amount to a decree of perpetual imprison- 
 ment if no person from humane feelings had been allowed 
 to interfere, and no counsel allowed to bring their case 
 before the tribunals of the country. 
 
 "If the police-officers of the Second Municipality 
 expect to escape exposure by their attempts to light up 
 the torch of suspicion against others, and to continue 
 
828 LIFE OF JACOB BARKER. 
 
 tlieir unlawful and inliuman conduct toward their pri- 
 soners with impunity, they will be mistaken. The Legis- 
 lature is composed of slave-holders, who understand 
 their rights and their interest too well to permit such 
 abuses : they will inquire into the matter and make all 
 obedient to the requirements of the law. 
 
 "Jacob Barker." 
 
 THE END. 
 
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