American in the Making


I WAS glad to accept appointment as Deputy Attorney General of the State of New York because of the opportunity to get some experience in public office in my home state. Though I knew that I would gain considerable experience in the law and the way it was administered in New York, I did not know that I was also to learn a great deal about practical politics in that connection. While I already knew generally that political parties help their friends, I never realized until this experience in the Attorney General's office how far special privileges and favors really went.

I was assigned to the New York City Bureau of the Attorney General's office in January, 1915. The main office, of course, was in Albany. I was given charge of matters ranging from legal work for the State Department of Agriculture to looking into unpaid mortgage taxes and conducting litigation with the Federal government. I took my work seriously, though I soon found that not all of the deputies did so and did not seem to be expected to put in a full day's work.

One interesting experience in the Attorney General's office gave me considerable knowledge of the ways of politics and justice. It had to do with trivial violations of the Conservation Law of the state. Every year fish and game inspectors brought in a sheaf of complaints against fishermen on Long Island for violating the law by taking scallops under one year old. A large number of these cases were scheduled for trial. I went out to Long Island to try them.

There was no question of the guilt of these fishermen. It was easy to establish that they took the young scallops. In each case the fishermen had been caught coming in with their catch, and samples of the scallops had been taken. But in case after case juries disagreed. I just couldn't understand it. Finally, I got to know the jurors pretty well, and after about the fifth or sixth disagreement, I asked some of them about it.

They were very frank. "Why, Mr. Attorney General," they said, "there is no question that these men are guilty. We understand the need of conserving fish life and not taking scallops under one year old, but this has been going on for a long time. Now, all of a sudden, the state indicts these small, individual fishermen. Why don't you go after the big oyster companies? We are not going to convict these little fellows. The big companies do the same thing day after day and are never bothered."

On the way home I asked the conservation officials about it. They looked at me and said: "Would you prosecute one of those big companies?"

"Of course I would," I said. "It's a violation of the law, isn't it?"

"Yes, but -" They sort of hemmed and hawed and said finally that they didn't believe any such action would receive approval "all the way up.” They had been in the service many years.

I told them to go out and get the evidence. Within two weeks they had brought in complaints against most of the large oyster companies. They were really large corporations. They owned their own tugs and also owned a large part of the waters from which they took their oysters, clams, and scallops. I adjourned all pending cases against the small, private fishermen and went out to try my first big oyster company case.

The company was represented by a prominent lawyer who later became a Supreme Court judge in New York State. He asked for an adjournment and before I could open my mouth, it was granted. I went out to Riverhead, Long Island, to try this case at least four or five times, and each time adjournment was requested and immediately granted. Finally, after many weeks of these delays, I appeared in court on the date last set for trial, and much to my surprise, the company was ready for trial.

I had not even adjusted myself at the counsel table, and the first juror had not yet been called, when counsel for the big company addressed the court and requested the court to ask the Attorney General to advise under what section of the law he intended to prosecute. That was easy. The law was not more than one and a half lines long. "No scallops under one year of age shall be taken" was the way it ran. I cited it. Whereupon, the company's counsel, with a happy grin, took a telegram from his pocket and said: "If Your Honor please, that law was changed last night, and I have a telegram from the Governor so informing me. Now, if Your Honor please, inasmuch as this law has been changed, I submit that it would be hardly worth while to continue with this trial. Clearly the legislature has seen the fallacy of such a law."

The judge seemed not a bit surprised. He seemed to know more about it all than I did. "Oh, yes, Counselor, I quite agree," he said. "Of course, if the Attorney General insists on a trial, I suppose we will have to go through with it, but I quite agree that it will serve no purpose whatsoever." The law had been changed simply by inserting the words "in public waters." The little fisherman caught his fish in public water, while the big companies had leased private waters along the coast!

I did not proceed with the trial, as it would have been useless. But I also did not prosecute any more of the cases against the small fishermen. I learned afterwards that there had been an understanding for many years that the big oyster companies were not to be disturbed. I suppose the same condition exists to this date. Law is all right so long as big interests are not disturbed. It seems it was easier in that case to change the law than to change the Attorney General.


ANOTHER time I was given the first case under a new Weights and Measures Law. The law required that the true weight be stated on all food in containers. The first case was against some large packing houses for misstating the weights on hams and bacon. It looked like a very simple case to me. There was no question as to the identity of the hams and bacon. There was no question as to their weight, or that they were underweight. Several ounces underweight made a difference of perhaps 5 per cent in price.

The State Department of Agriculture was very keen about establishing the efficacy of this new law, for it had taken several years to get it enacted. The violation was a misdemeanor. The case, therefore, was of a criminal nature and was instituted in the Magistrates' Court of the City of New York. When the case was called, my neighbor in Greenwich Village, State Senator James J. Walker, later Mayor, appeared for the defense.

I called my first witness, one of the inspectors of the packers' plants. Whereupon, Senator Walker addressed the court, stating that he was the author of the law, that it was never intended to apply to "wrappers," that the hams and bacon were in wrappers, and not in a container, that the requirement that true weight be shown only applied to containers made of glass, wood, or tin but did not apply to wrappers. And, of course, he knew, for he had written the bill.

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