The autobiography of a Pennsylvanian/05 The Philadelphia Bar
The Philadelphia Bar
WHEN a stranger for the first time met Peter McCall, the strongest impression made upon him was that he confronted a man instinctively a gentleman, and this impression grew with each succeeding interview. A descendant of George McCall, a merchant in Philadelphia in the early colonial period who owned McCall's Manor at Manatawny, he had a thin, Celtic face, refined by long time and, perhaps, cross-breeding, with pronounced lips and chin. Slim, perhaps five feet eight inches in height, he possessed a certain power of oratorial speech and much latent combativeness. He had been mayor of the city. He had been a professor of law in the University of Pennsylvania. Often nominated for a judgeship in the court of common pleas by the minority party, he each time failed of election, but no man could have been better fitted for the office. When clients were about to leave his inner room after a closed interview, with the sweetest courtesy of manner he escorted them to the outer door. With timid visitors at his home, he broached one topic of conversation after another until he discovered the subject in which they were interested or informed, and then he sat and silently listened. Coming of a family of social importance, whose members had participated in the dancing assemblies from their beginning, having inherited what he once described to me as “a little patrimony,” holding a position at the bar, everywhere recognized as close to the top, he had nevertheless encountered some of the adverse currents of life. He married a Southern woman, a descendant of General Hugh Mercer who was killed at Princeton. She looked well enough and lived long, but she was either an invalid or a case of disordered nerves. The sympathy accorded by a husband to supposed illness is a great leverage and she influenced him in many ways to his disadvantage. She wanted the comparatively greater importance of the Mercers to be conceded. She prevailed upon him to move away from the house in which he had always lived to a more healthful locality. I know of no greater misfortune that can happen to the career of a man of ability than to be out of sympathy with his own people in a fateful crisis in which they are right. Mr. McCall had been a Whig and had become a Democrat. Throughout the war his wife openly avowed her hope for the success of the Southern cause, and he was frequently denounced as a Copperhead. He never mentioned the subject, but when he failed to be re-elected to the vestry of St. Peter's Church, with which he had long been connected, and when his clients began to drop away and the students, who before had striven to enter his office, forsook him, intelligent and sensitive, he felt the change keenly. At the time I entered his office, the warmth of feeling existing at the outset of the war had somewhat abated and the genuine respect for Mr. McCall had begun to revive.
I reached the offices, No. 224 South Fourth Street, on the west side of Fourth Street below Walnut, in the early morning. They consisted of two large rooms on the ground floor. No one else had yet arrived. Securing a book, I selected a large and comfortable chair, drew it to the front window and began my studies. Presently a tall young man with dark whiskers entered, and coming over to me said: “It is a custom in this office that the oldest student occupies that chair and I will thank you to give it to me.” I surrendered it with due meekness and had received my first lesson in discipline. The young gentleman was named J. Duross O'Brien, an earnest, good-hearted and agreeable fellow. His aunt, a prosperous milliner, educated him. The old-time ways still prevailed in the office and the students were expected to run errands and to respond when called upon for any sort of manual assistance. Instead of mailing his letters, Mr. McCall would say in his blandest manner: “Mr. ———, I wish that on your way home this evening you will be good enough to deliver these letters.” Once O'Brien said to him by way of protest: “Mr. McCall, is it the custom for students in a lawyer's office to carry letters?” “I think it is, Mr. O'Brien,” and thereafter whenever a letter was deliverable at any unusual distance, this particular student was pretty sure to get it. Sometimes he stayed away for days to avoid the letters, but these tactics were met by accumulation. Once O'Brien, who was not altogether refined, stood before Mr. McCall, who was the expression of delicate and perfect culture, being instructed upon some subject. In his pocket was a box of matches ready for the after-lunch cigar. In his pocket was also his hand fumbling the matches. Suddenly they were ignited. “Damn it to hell!” ejaculated O'Brien. He afterward went out to New Mexico, where I believe he achieved considerable success.
With Edward S. Harlan, student of a different type, I established a warm and lasting friendship. Lame in one foot, nature more than made up for the defect by giving him a handsome, strong face adorned with a graceful mustache. He had a good heart and a nimble wit. Once some one was endeavoring to twit me with being a countryman and inquired: “Do the people live in houses in that section of the state?” “The chiefs do,” interjected Harlan. He died only too early of angina pectoris, which he bore with the utmost patience, and left an attractive daughter, who married Samuel Wagner. Charles M. Walton, a scion of one of the Quaker families of the state, fond of literature and appreciating its beauties with correct taste, a friend of Oliver Wendell Holmes, who often visited him, was also reading law at the time. Entirely too gentle and possessing too much sensibility to meet the buffets which he encounters who enters upon the practice of the law, he was beloved by all who knew him and soon died.
Of another mold was S. Davis Page, who harked back to the Byrds of Westover and other noted Virginia families. He had married and gone to Europe to escape the animosities which had to be borne by those of Southern sympathies in the early days of the war, but had returned to complete his studies. His studies had been too much interrupted to enable him to become profoundly learned in the law, but he had no intention of being set aside, and life had much in store for him. He secured a fair practice and contended on behalf of his clients pugnaciously. He entered politics on the Democratic side, sat in the city councils and became city treasurer. His social success was pronounced and his son, William Byrd Page, in his day, at the University of Pennsylvania, held the world's record for high jumping.
A little later John Sword came into the office. He had great aptitude for the law and was besides a close student. Mr. McCall thought so well of him that he took him, after admission to the bar, into some of his cases. Sword, after editing some volumes of reports, abandoned the law and, as I have written, became a devotee. He went to Oxford University and, entering the ministry, appeared later as the highest of high church Episcopalians. His life thereafter was spent in genuflexions and self-abnegation. Fond of the society of women, he refused marriage. Attracting the attention of Mrs. Paran Stevens, a wealthy widow, she wanted to do much for him, but he sought work in the slums and among the poor and the lowly. He left the courts literally to fall upon his knees. Life is filled with strange contrasts. Before my time, Mr. McCall had a pet student, who married well, lived well, held his head high in society and in the end robbed the estates entrusted to him, forged mortgages and ran away to a remote country, disappearing in the darkness.
Among the students, I was the only one who had not graduated from some college, but three months had not gone by before they all habitually came to me for help when they were puzzled over the Norman French of Littleton and the Latin citations of the law books. I went to the office sometimes as early as six o'clock in the mornings. When the rest went away for their vacations in the summer, I had the office to myself. I read the course prescribed, and very much more — the whole of Coke's Commentaries on Littleton, the three volumes of Addison on Contracts, Fearne on Remainders, Sugden on Vendors, Sugden on Powers and I dabbled in the Year Books. One hot summer day I sat with a book in a comfortable old Spanish chair at the window of the back room. Presently some one appeared at the door. I thought it was a tramp, the room being somewhat darkened, and I went on with my reading. The intruder came slowly over to my chair and said: “Will you kindly tell Mr. McCall, when he returns, that Joseph R. Ingersoll called and that no one arose to receive him?” Then he turned on his heel. The situation was uncomfortable, for Mr. McCall held him in the highest respect, and so had my father who corresponded with him.
An Irish woman named Margaret took care of the offices. She had a son, Willie, about sixteen years of age, an only child, who grieved her heart by hunting up wild companions and getting drunk. Ashenfelter, who had been in the office a short time with me, suddenly concluded to go on a sailing vessel around Cape Horn, and at the suggestion of Mr. McCall, Willie went with him. Margaret sadly let him go, and at the last moment tying a crucifix around his throat told him never to take it off. In a storm off the Rio de la Plata, Willie, for some purpose, went to the prow of the vessel and was washed overboard and lost. He had removed the crucifix and it lay on the deck. I still have it, and his poor mother never knew this part of the tragedy.
At that time the method of training lawyers for the work of the profession was to have the student read upon the subject in the office of a practicing attorney and under his direction, and to have his progress ascertained by occasional examinations. The reading was confined almost exclusively to dissertations upon the law and text-books and there was little or no reference to particular cases. A principle was affirmed and if a case was cited it was as an elucidation of that principle. The judges were presumed to have known it and to have decided accordingly. The modern doctrine of the creation of law by the decisions of courts and the consequent importance of the study of cases had either not arisen or was only in its incipiency. In Mr. McCall's office we learned nothing of causes and I have many a time wondered what I should do if perchance in the future an actual case should ever come to me.
While I was with him, Mr. McCall gave up his home, took his family, or was taken by them, to the western part of the city and removed his offices to a two-story brick building on the east side of Fourth Street. It illustrates the relation of his students to him that they carried in baskets all of his large library and the other necessary articles to the new location. The relation to the client was also quite different from that which we now see, and instead of being a mere matter of business was in part at least friendly and paternal. One of Mr. McCall's clients, a little old man, to whom he showed marked attention, called Joseph Andrade, always with each Christmas brought him a turkey. Once I hardily went to him and said: “Mr. McCall, I want to read the works of Spinoza and DesCartes and they are not in the Mercantile Library where I have a share; could I get them from the Philadelphia Library on your share?”
He was deeply religious and probably felt that he ought not to encourage a young man in dipping into that sort of philosophy. At all events, he did not assent. I read the books, nevertheless, and added to them Locke, Hamilton, Hobbes, Hume and Spencer.
Through one summer I boarded in a Pennsylvania Dutch hotel, on the east side of Third Street near Callowhill, patronized alone by the clerks of merchants and by farmers coming into town. It was an interesting experience. I had a little room in the third story with one small window, a bed, a bowl and basin on a rough stand, two Windsor chairs, a strip of rag carpet along the bed and no other furniture except a jordan. In the dining-room we sat on stools at a long table. There were not, however, stools enough for all the guests, and as a result there had to be two services, and those who did not find a stool at the first opportunity must wait until the more fortunate were fed and another outfit was made ready. When the gong sounded the doors were thrown open, there was a rush for the stools in which men were jammed and clothes torn and when the stools were filled the doors were again closed. I met some young men here who succeeded in life and whose paths again crossed mine. On Sundays I went to Franklin Square and, sitting on a bench there, read Gibbon's Decline and Fall of the Roman Empire.
Ashenfelter, who had graduated at Dickinson College, had come to the city to read law, and together we rented the front room at No. 520 Spruce Street from a Mrs. Wilson, the widow of a newspaper editor. It was modest enough, but kept bright and cleanly, and the impression even today is one of luxurious enjoyment. We ate our meals at the boarding house of a Mrs. Lydia Foster on Sixth Street below Locust. We called it the “Foster Home.” Into the boarding house had been swept by the tides of misfortune Ann Kittera, a daughter of the noted Congressman, John W. Kittera, and related to the family of Governor Simon Snyder. Her gentility of manner, her faded finery of clothing and the furrows on her withered cheeks all told the same tale, and unconsciously each one of the household showed to her respect and called her “Miss Ann.” Three young men from among those who gathered at that inexpensive table, two students of medicine and one of law, met together many years later as pall-bearers at the funeral of the famous surgeon, Dr. D. Hayes Agnew — Dr. Roland G. Curtin, Dr. De Forrest Willard and myself. Another boarder was John Thompson Spencer, then a student of law, who later married the only daughter of John William Wallace, one of my predecessors as president of the Historical Society of Pennsylvania, and who now entertains the European nobility when they come to Newport. With a Frenchman at the table, I began to talk French, and thereafter our conversations were conducted solely in that language.
About this time I made the acquaintance of J. Granville Leach, the son of a Baptist preacher at Cape May, who was reading law in the office of Byron Woodward. The resources of Leach, like those of the rest of us, were narrow, and he slept in the office. Leach introduced me into the Law Academy and at his suggestion I, while yet a student, in 1865, was elected its assistant secretary. I, therefore, owe to Leach my first professional recognition. Through two winters I attended the law lectures at the University of Pennsylvania by Judge George Sharswood, P. Pemberton Morris and E. Spencer Miller, paying to each of them sixty dollars for the two terms of the year. Miller had the reputation of being the least capable lawyer and the best lecturer. A nervous, combative little man, he had a practice which, it was supposed, netted him $30,000 a year and had made him rich. When he died he left nothing behind him in the way of an estate. Sharswood had one of those kindly dispositions which made everybody fond of him. With young men he was ever gentle, and late in life he afforded the pathetic spectacle of a father watching through the night for the incoming of an only son whose wildness and waywardness he ever condoned. He had no presence, no voice and a troubled utterance. He suffered much from a physical cause, and in the trial of cases paced slowly up and down behind the bench. Later he became Chief Justice of the Commonwealth and after a career of great distinction, died universally esteemed and leaving his edition of Blackstone for the instruction of the profession. The lectures were delivered in the building on the west side of Ninth Street, north of Chestnut. When I was graduated as a Bachelor of Laws, we had no commencement save that I called, with others, and was given my diploma.
I was admitted to the bar in May, 1866. On the Board of Examiners sat George W. Biddle and William Henry Rawle, among others, and John Cadwalader, Jr., acted as secretary. They made an entry on their minutes that I had passed the best examination which had come before them during their term, much to the delight of Mr. McCall as well as myself. Biddle, long regarded as the leader of the Bar, never forgot me and frequently recalled the impression of me then made. In the trial of cases he had a nervous habit of raising one hand and rubbing the back of it with the palm of the other, and he always spoke impressively. He had three sons, all of them lawyers, and it was his sad fate to see them all die in young manhood.
It had cost my grandfather for my legal education, extending through two years and a half, in the midst of the high prices of the war, including $200 paid to my preceptor and $360 paid to the University professors, and including board and clothing, exactly $1,260. This sum he later forgave and probably never expected to reclaim. It ought to be added, however, that while I was a student the discovery of oil in Venango County led to tremendous speculation and the organization of oil companies in all directions. Robert R. Chrisman and other persons whom I happened to know secured some land, a charter for the Providence Oil Company, and proceeded to bore for oil and to sell their stock. They engaged me for two hours a day, at $12 a week, to keep their books and I remained with them four months and until the balance in the treasury had fallen to $3.67. I did some other work which helped my resources slightly.
At this time I frequently saw flourishing about the town a young man called “Coal Oil Johnnie.” He came of a poor and uneducated family, in the western part of the state, who for generations had wrung a scanty subsistence from an infertile soil. Suddenly oil in quantities was found under their feet and he became rich to profusion. He came to the city to scatter his wealth, gave out ten dollar bills and disdained to take the change, bought a team of horses and tiring of them gave them to his hostler, and built an opera house in Cincinnati. Ere long he earned a livelihood by acting as doorkeeper for this opera house.
The bruit of my successful examination spreading around to some extent, I was offered a position in three different offices — those of E. Spencer Miller, Daniel Dougherty and Frederick Heyer — at a salary which varied from $600 to $800 a year, but I concluded it was better to depend upon my own exertions, and I rented the front room at 705 Walnut street from George L. Crawford. His clients passed through my office and I had the great pleasure of seeing them daily go by me in numbers. He was a competent lawyer. He had a little bronchial cough, and he prepared and tried the cases which came to Benjamin Harris Brewster. The latter, at that time, was one of the remarkable characters at the bar. He had been badly burned in childhood and the accident left his face not only ugly but repulsive, since the eyeball was exposed, the lids reddened, the face distorted and the lips thickened into rolls. If this condition of countenance made him sensitive he gave, in manner, no indication of the fact. I have heard women say that, when they listened to his words and voice, they forgot all about his features and he was twice married, the last time to a daughter of Robert J. Walker, once Secretary of the Treasury. He wore a velvet coat, a light vest, a stock, and ruffles at the end of his shirt sleeves. Late in life he became Attorney General of the United States. He had a gift of oratory and a touch of charlatanry and once was taken in to argue a case before me as master, and knowing nothing whatever about the circumstances of the cause, he occupied an hour or two in talking about the solemnity of a seal to a deed. He always maintained a hostile attitude towards his brother. Judge F. Carroll Brewster, who, more able and less candid, was Attorney General of Pennsylvania.
While sitting in my office, one day, I heard an unusual noise in Crawford's room. When I hastened inside I saw a very thin man wildly ejaculating in front of a table and whacking away with his cane at the head of Crawford, who struggled to arise from a chair on the other side. Approaching from the rear, I caught the intruder around the waist, lifted him from his feet, carried him through my room to the street, and there deposited him on the front door step. He turned out to be Major S. B. Wylie Mitchell, the founder of the Loyal Legion.
When I entered the Law Academy, a bright, vigorous young man, who had taken an active part in its affairs, named John G. Johnson, a few years older than myself, was about leaving it to meet the broader requirements of life. The son of a blacksmith, without means, he held no college diploma, and he began his career with no advantages of any kind to give him help. Save that he would occasionally go to see a game of baseball and that he developed a taste for and acquired a knowledge of paintings in oil and made an important collection, he has devoted himself exclusively to the practice of the law, permitting nothing to tempt him aside. He did indeed once write an historical pamphlet on what was then called “The Wars of the Grandfathers,” being a controversy between George Bancroft and the descendants of several of the generals of the Revolution over the respective merits of these officers, but he has ever kept silence upon the subject and the fact is not generally known. It is universally conceded that he is today the leader of the Philadelphia bar and one of the foremost lawyers of the United States. He has acquired a large fortune, having expended, according to reports, over a million dollars for his pictures. From the meetings, dinners, and clubs of the profession, he is always absent, and he takes no part in the bar associations or even in those efforts intended for professional advancement and improvement. His success at the bar has been due to physical and mental power rather than to cultivation. There is a little of coarseness, a little of hardness in his fiber, and he is not much given to sentiment in any direction, but he works at the law from early in the morning until late at night, and when he arises to argue or to try a case, the court, the jury, the lawyers and the tipstaves all give attention.
I took my part in the arguments at the Law Academy, was elected secretary for the year 1866, and then discovered that I had taken the wrong road for advancement. I have found as I have gone through life that the “rings,” for which we blame the politicians, arise naturally and are to be found everywhere. A little clique of cultivated men conducted the affairs of the Law Academy. From time whereof the memory of man runneth not to the contrary, an unbroken custom has decreed that he who had filled the office of prothonotary for one year should, if he so desired, be elected the president for the following year. At this time J. Vaughan Darling, in the office of Richard C. McMurtrie, who later went to Wilkes-Barre and there won success and died, held the position of prothonotary and superintended the serious labor of preparing all of the cases to be argued during the winter's sessions. Very innocently, with an inborn sense of personal superiority, I endeavored to take a part in the management and found myself against a stone wall. One evening in the course of a speech I used the word “gentleman.” Darling, in a supercilious way in reply, said that “Mr. Pennypacker will find that his ideas and ours of what constitute a gentleman are quite different.” The remark cost him the presidency. The membership of the Academy had felt such things before, were ready for revolt, and only needed a leader. I organized a rebellion which proved to be a revolution. William White Wiltbank, a great-grandson of Bishop White, who had been out in the war and who had written a paper for the Atlantic Monthly, who years later sat on the Bench with me, and who, for some reason, was a persona non grata, helped in the movement. We selected as a candidate for the presidency James Lanman Harmar, a very able man, a grandson of General Josiah Harmar of the Revolutionary Army, and I ran with him for the vice-presidency. Samuel S. Hollingsworth made the speeches and I led the opposing forces. Harmar was elected over Darling, but was drowned at Bar Harbor before he had taken his seat and I became the president, a reward which ordinarily would have gone, and ought to have gone, to Darling.
Hollingsworth and I became fast friends. Of Quaker ancestry, with dark eyes and stocky in build, combative in temperament, with the power to think accurately, he never flinched in a struggle, and he was one of those few men who never say anything but the truth, even though it be uncomplimentary and said in the presence of the person concerned. He went into councils and did good service in the improvement of affairs, moving around with the boys while at the same time retaining his association with the gentry. A few years later, as a trustee of the University of Pennsylvania, it was my fortune to aid in selecting him for a professorship in that institution. It was his hope to reach the Supreme Court of the United States, but in the very prime of life, while rugged as an oak, he died of typhoid fever. Since experience only comes with long exercise of the faculties, and since in a dull world time is required to gain an appreciation of merit, the gift of long life is one of the essentials of any real success.
When I came to the bar, Horace Binney could occasionally be seen upon the street, but he had long retired from practice. William M. Meredith could be heard at rare intervals in the courts. George M. Wharton, a small, wiry and acute man, had a good clientele. Henry Wharton, round and robust, gave opinions upon real estate titles, there being then no real estate title companies. Eli K. Price, in his canny way, was heaping up a fortune. David Paul Brown, trim in a blue coat with brass buttons, rather fluent than wise, seldom appeared. The real leaders of the Bar were George W. Biddle, to whom I have before referred, and Richard C. McMurtrie. McMurtrie, pure and sincere, perhaps excelled in case-learning any other lawyer at the bar. In temperament he had the simplicity of a child, and in his mental conduct he suggested an overgrown boy. Whatever thought came to his head found its way to his tongue. He really felt that no one else knew much about the subject and he gave utterance to the thought. Once we had a case together and he inquired in which common pleas court it had been docketed. When I named the court he said: “Oh, those poor, helpless creatures!” At another time he said to me: “If I raise some shellbark trees for you, will you plant them?” I promised to take care of them and some time later he brought them in a basket to my office. He once told Judge Fell that a certain lawyer was a fool. Some days later he came in a penitent mood to say: “Judge, do you know it is I who was the fool.” He was a most unsafe adviser for the reason that he was ever constructing theories to which the affairs of the world refused to conform, but he was a lovable character and his steadfast adherence to the truth aided him much in the trial of causes.
At the criminal bar Lewis C. Cassidy and William B. Mann stood foremost, until succeeded by James H. Heverin and Charles W. Brooke. When the Republicans were successful William B. Mann prosecuted the causes and Cassidy defended them, and when the Democrats were successful the situation was exactly reversed. Cassidy, a tall, dark, handsome man, possessed real eloquence. I believe he never had a client convicted of murder in the first degree, a fact which can probably be explained by his refusal to take a desperate case likely to result in that way. When the Independent Republicans refused to vote for General James A. Beaver for Governor and caused the election of the Democrat, Robert E. Pattison, that gentleman made Cassidy his Attorney General.
For Mann I had almost a sense of horror. He had a burly frame, a furtive eye and great political power. My feeling toward him arose in this way. A man named George W. Winnemore, a spiritualistic dreamer, killed, in a barbarous manner, a woman who was a spiritualistic medium. He was a stranger in the city without a friend and had only two dollars in his pocket. He constituted a good subject with which to establish a reputation for energy and activity in the performance of public duty and he was hurried to the gallows. Being without counsel and penniless, the court appointed Damon Y. Kilgore, the only man at the bar who believed in spiritualism, to defend him. Kilgore had just been admitted to the bar, knew nothing about handling a cause, and, besides, although Winnemore had been an epileptic from childhood, he had neither time nor means for getting evidence together. The trial came off the following week, ending in prompt conviction and the public comment of “well done.” Mann had the reputation of being generous among his friends and good to the poor. Brooke, better known as “Charlie,” came to the bar from the office of a banker. He wore a huge black mustache and drank to excess, but could make a speech and had capacity. He later went to New York, where he established a great reputation as a criminal lawyer and finally died leaving three families and a fortune of a thousand dollars.
Theodore Cuyler, the counsel of the Pennsylvania Railroad, a suave and subtle man, is perhaps best described by the epigram of Samuel Dickson, who said of him that “He had every quality of an advocate. He could persuade a jury to render a verdict contrary to the facts and the Supreme Court to render a decision contrary to the law.”
An abler man than any of these I have mentioned was Furman Sheppard, robust in frame and in intellect. I have known many men in the various phases of life — presidents, professors and preachers — and I am inclined to think he was the ablest of them all. He never achieved a work or attained a reputation at all commensurate with his power. The utilization of the forces of nature is subject to much vicissitude and the momentum of the ocean beats upon the shore in vain. He had some practice and when he had tried a case it had been exhausted. He once filled the office of district attorney for the county and he had neither predecessor nor successor. He had read widely, not only in the philosophy of the law, but in literature and theology, and he comprehended their full significance. Perhaps he was a little inert. Perhaps he did not fully realize his own capacity. After accepting an invitation to make a speech at the dinner given to Benjamin H. Brewster when appointed Attorney General of the United States, he failed to appear. Perhaps conscious of strength, he disdained to seek for opportunity and reputation and waited for the world to see for itself. He was a Democrat in a Republican city, but so was Pattison. Whatever be the cause, certain it is that many lesser men have gone much further.
I saw Anton Probst, a little, light-colored, dull-looking German, as they brought him in the van to the court house at Sixth and Chestnut streets to be tried. Employed by a farmer named Deering, down near the junction of the two rivers in the region called “The Neck,” he killed the father, mother and a family of children, one a mere infant, in order to secure a small sum of money. Driven through the crowd, who jeered and threatened, he seemed like some hunted animal. He still retains the distinction of being the most atrocious murderer in our annals.
I attended the trial of George S. Twitchell. An old lady, the mother of Twitchell's wife, lived in the house with them. She lay on the sofa in the sitting room with a roll of money in her bosom and while there some one beat her to death by repeated blows over the head. The blood flew in curved streams over the paper of the wall. The next morning her body was found in the yard, where it had been thrown from a window; alongside of it lay the long bloody poker with which the detectives concluded she had been stricken. Twitchell was accused of the crime. Henry S. Hagert and Furman Sheppard represented the commonwealth, and William B. Mann and John O'Byrne, an eloquent Irishman, who had been a hatter, who went to Delaware afterward in an effort to reach the senate, and who, failing, closed his career in New York, represented the defendant. The commonwealth contended that Twitchell, in financial straits, quarreled with his mother-in-law over money. The defense contended that a robber found his way into the house from the street, and they had some evidence to support the theory. Mann spent the most of his time in an effort to convince the jury that the poker could not have produced those curves of blood drops on the wall, and he illustrated his argument with all sorts of weapons. Some long and stiff like a poker and some made of leather and twine, to be limber and swinging. As I listened I did a piece of analytical work and reached the conclusion that Twitchell had killed the woman and that he had not done it with the poker. Mann would not have spent so much effort upon what, after all, was a mere detail, unless he had been sure beyond doubt that in this respect the case of the commonwealth was at fault and he could only be so sure because of information from his client. Twitchell was convicted, and years afterward it was told that Mann and O'Byrne had gone to the house and secured from its hiding place the “billy” with which he did the deed. Mrs. Twitchell mortgaged the house to counsel to pay their fees. A friend of Twitchell stood by him faithfully at the dock through the whole trial, and when the sheriff went to hang him he was found dead in his cell from poison which no one knew how he had secured.
During the first year of my practice I received in fees $800, and the annual returns slowly increased. When I married Virginia Earl Broomall, October 20, 1870, I was making from $1,800 to $2,000 a year. At that time I had moved my office to 209 South Sixth Street, where I had a room to myself. When I went out I tacked a card on the door. For years I carried my lunch down to the office in my green bag and I walked from my home at 2002 North Marvine Street and later 1540 North Fifteenth Street. I settled up the affairs of my uncle, Dr. Samuel A. Whitaker, who owned one-twenty-first part of the Phœnix Iron Company, and became his administrator. I was the administrator of the estate of my aunt, Sarah Ann Whitaker, who left about $70,000, and my grandfather, leaving an estate of $520,000, made me one of his executors. Among my clients were Focht, Whitaker & Co. and William H. Whitaker & Co., coal merchants; Jacob S. Neafie, the ship builder; George H. Sellers, a brother of William Sellers; Wharton Barker, the banker, and William L. Wilson, in his day the leading tile merchant of the city. Wilson employed me by the year and paid me an annual salary of $100. For him I fought almost everybody of any consequence in the city, including the Pennsylvania Railroad Company, Adams Express Company and the Drexels. He combined most methodical ways with abnormal combativeness. He took exception once to my payment of twenty-five cents for a subpœna without direct authority, and the matter had to be left to arbitration. He kept a book in which he recorded the details of conversations in preparation for lawsuits. Once in a trial he sent me this book and, much to my surprise, I found renderings of what I had said to him, with the dates. The information made me thenceforth careful. A. Sydney Biddle brought a bill in equity against him in behalf of Colonel William S. Moorehead and the testimony was taken before Richard S. Hunter, as master, and as was then the custom, was written out without a stenographer. The case progressed until I put Wilson on the stand and Biddle undertook to cross-examine him. Biddle, a fluent and verbose man, asked a question a page or two long. Wilson had a clothes-basket full of papers, every one of which was of the utmost importance, and taking them and his book gave an answer covering twenty pages. Biddle's long efforts to shorten the response simply called forth further explanations. So it continued until the case fell of its own weight. It never reached a decision and never will. Almost needless to add, Wilson finally encountered financial disaster. The last time I heard of him I sent him ten dollars to relieve the immediate want of bread. Perfectly upright and ever meaning well, he was too much given to exactness and detail.
Wharton Barker thought himself worth a million dollars, probably with truth. He did much for me in many ways. I bought the charter and organized for him the Finance Company of Pennsylvania, now one of the most important of our financial institutions. Through him I once represented Baring Bros. of London and recovered from the Pennsylvania Railroad Company the value of a lot of stolen bonds. Through him I became one of the pioneers in the construction of trusts. Barker, always alert and energetic, but a little lacking in the steadiness which comes from cool judgment, was one of the first men in the world to see the possibilities of the development of relations with China, a goal toward which we are now moving, and he secured a sort of concession for the construction of railroads throughout that empire. In its terms it was so general and vague that I gave him an opinion that it had little or no practical value, and urged him to endeavor to get the Orientals to be more precise. Ma Kie Chang, who was some near relative of Li Hung Chang, came with a retinue to Philadelphia. Psychologically, the interviews were of intense interest. Barker, quick to speak and move and full of nervous energy, beat and beat in vain against the Chinese who sat there, smooth and polished, but stolid and imperturbable. They probably knew at the outset just what they wanted to do and what they were unwilling to do, but it required days of prolonged and chafing delay to get from them a real expression of thought, and in the end the expression was of doubtful meaning. However, Barker and the financiers with him — Hamilton Disston, Samuel R. Shipley, president of the Provident Life and Trust Company, a keen personage, and others — concluded they had sufficient and upon the basis of this concession I organized a trust with a capital of twenty millions of dollars.
A lawyer sees much of the tragedy of existence. A few years after my admission to the bar, I was retained by a man belonging to one of the most respectable of the country families of Bucks County, Pennsylvania. His son, a boy about eighteen years of age, had found employment as a clerk in one of the large insurance companies of the city. One day the directors held a meeting at the office of the company. In the course of the meeting the president went to the outer office and gave to this boy the bank book with about fifteen hundred dollars in notes, to take to the bank to deposit. The meeting was prolonged and when it adjourned late in the afternoon the president inquired for the boy and learned that he had not returned. Inquiry and search failed to disclose what had become of him, but it was ascertained that he had not reached the bank. The officers of the company held the theory that he had stolen the money, and they employed detectives and confidently declared that he would be captured within a few days. At this juncture his relatives, in much distress, came to me. Their view was he had been overcome by footpads, who knew he had a large sum of money, and they blamed the officers for sending him out with it. However, the father, who could not secure so much cash, offered to give a mortgage upon his farm for the amount in settlement, and I made this proposition to counsel of the company. Information from their detectives made them sure of having both the boy and the money in a few days, and they declined the proposition. Days and weeks rolled by and then they wanted to have it renewed, but in the meantime the anxiety of my clients had to some extent been relieved; they had grown more accustomed to the situation, and they refused. For twenty years the events remained a mystery, and then were disclosed. The boy wrote home. He had never before in his life seen so much money; the opportunity to grasp a fortune lay in his hand, he yielded to the temptation and stole the money. Instinctively he turned toward home. He went to the depot of the North Pennsylvania Railroad Company and bought a ticket for his native village. Then it suddenly occurred to him that he could not be safe there and he turned on his steps, went to the Pennsylvania Railroad depot and started for the far West. No cunningly devised plan would have resulted in such success as this impulsive action. The detectives traced him to the North Penn depot and there learned the station for which he had bought a ticket. Then in their wisdom they knew that his relatives were hiding him in Bucks County. They watched accordingly, watched in vain, and so prevented the company from getting the mortgage. Inside of three months he had lost every cent of the money. Then he went to work in a powder mill where the danger was great and the wages high, and he saved. Then he learned bookbinding, prospered and became the head of an establishment. He had changed his name, married, had a family of children and grown rich, and at last he wrote home to pay off the old score with interest.
E. Greenough Platt, a very capable lawyer in the office of John C. Bullitt, and my friend Hollingsworth, had undertaken to prepare a third volume of the index to the English Common Law Reports, which had been commenced years before by George W. Biddle and Richard C. McMurtrie. The task involved much labor, little had been accomplished, and they prevailed upon me, with the consent of the publishers, to come to their assistance. Thereafter the entire responsibility rested on me. Hollingsworth had completed three volumes of the reports, Platt ten, and I digested the remaining twenty-two volumes, arranged the book, saw it through the press and was permitted to write the preface. Published in 1879, it constituted my first contribution to the literature of the profession. About the time I entered upon this work, I became associated with the Weekly Notes of Cases, a lawyers' reporting journal, and aided in the preparation of each one of the forty-five volumes until it closed, having charge of the reports for one of the common pleas courts. There could have been no better training for the bench. For a time the publication was remunerative. It belonged to an association consisting of Albert A. Outerbridge, Judge James T. Mitchell, W. Wynne Wister, Henry Budd, Lawrence Lewis, Jr., and myself. Among the many reporters whom I had on my staff in the course of years, two showed unusual capacity — George Harrison Fisher, whom I later met on the council of the Historical Society of Pennsylvania, and Abraham M. Beitler, whom I later met on the bench. Fisher had social standing and the serious achievement of his life has been to maintain it unimpaired. Beitler, the son of a hotel keeper on Market Street, and the nephew of an old political war horse, Alderman David Beitler, became director of a department under Mayor Stuart, an acceptable judge in the Court of Common Pleas No. 1, and is now a partner of Samuel Dickson and has a lucrative corporation practice.
I likewise prepared four volumes of Pennypacker's Supreme Court Reports, for which I received, from Rees Welsh & Co., eight hundred dollars a volume, and in which I was much assisted by Albert B. Weimer, a graduate of Harvard University and a polished young fellow who has since made his mark in the city. After going upon the bench I delivered, in 1892, the annual address before the Law Academy upon the subject of “Pennsylvania Colonial Cases,” which I subsequently enlarged into a volume. Horace Binney, in his Leaders of the Old Bar, had ventured the assertion that prior to the time of William Lewis and the Revolution we could never learn anything of the manner of conducting the courts, and Peter McCall, in an address many years before, had regretted that the names of the only four lawyers in the province, whom Sprogell monopolized in his contest with Pastorius, had been lost. With much satisfaction, I gave reports of about sixty cases, between 1683 and 1703, and added the names of those four lawyers.
During my practice I had four students — Chester N. Farr, who became private secretary to Governors Hartranft and Hoyt; Stanley Williamson, who died young; William Righter Fisher, who had been a professor in Dickinson College and has since been a professor of law in Temple College; and Joseph Whitaker Thompson, now the United States District Attorney for the Eastern District of Pennsylvania.
When I came to the bar, Daniel Dougherty had the reputation of being its orator, but he was only an orator. He had a national reputation. Like so many other American orators, he was an Irishman. I have heard him likened to necessity because of the maxim that “necessity knows no law,” but that was an exaggeration of the truth and probably arose from the envy of some commentator less gifted. The first time he made a political speech he fainted and had to be carried from the platform. I once heard him make a powerful appeal to the jury, in an important case in which he was opposed by William W. Ker, who had only force and experience. When Ker arose he said quietly: “Gentlemen, you are to be congratulated. Those who generally hear Mr. Dougherty, listen for an hour at the Academy of Music and pay a dollar for the privilege. You have heard him for four hours for nothing.” Ker won the case. Dougherty had a fine presence, side whiskers and a persuasive voice.
The most eccentric character at the bar was Lucas Hirst. He had offices on Walnut Street above Sixth, and ate his meals and kept a woman at the same place. Thin, with sandy complexion and red hair, he had a high, rasping voice. Other lawyers kept away from him as much as possible. Not only had he ability and readiness for the encounter, but papers had a habit of disappearing and sometimes they did not remain at the end of the suit as they had been at the beginning. On one occasion he went to the library of the Law Association to examine a report. The attendants were distrustful and hesitated to let him have it. “I will fix you,” he threatened, in his shrillest tones. When he died he bequeathed a considerable estate for the purpose of founding a free law library and no doubt, as years go by and his form and idiosyncracies are forgotten, his reputation will be assured as a philanthropist and public benefactor. In fact, we find as we examine the mysteries of life that even the worst of men do more good in the world than they do harm. The money which the gambler has cheated to secure and hoarded to preserve goes finally to the building of a chapel. Even if impelled by an unworthy motive, Hirst will have done more in the end to give practical assistance to the lawyers of the future than the most credited, capable and upright of his contemporaries. Moreover, the impulses of the human heart are both complicated and inscrutable, and in all probability Hirst had long been pondering over some method by which he could aid his fellows and gain their good will.
During the course of my practice three men whom I pursued for debt committed suicide — one shot himself, one leaped into the Delaware from a steamboat, and the third was found hanging in a barn.
I declined to take cases in the criminal court. My chief reason was that I feared that through lack of skill and experience upon my part some innocent person might be convicted and punished. In pursuing this course I made a mistake, since, except in cases of popular clamor to which timid juries and judges yield, the chances of the conviction of innocence are very slight.
At a dinner, October 1, 1888, Justice Miller, of the Supreme Court of the United States, gave such an interesting narrative of a crisis in American history that I wrote it out in full at the time, as follows:
October 1, 1888.
To-day Justice Samuel F. Miller of the Supreme Court of the United States delivered the opening address to the law class of the University of Pennsylvania, and at seven o'clock he sat down to a dinner at the Rittenhouse Club, No. 1811 Walnut Street, tendered to him by the faculty of the law department of the University. There were at the dinner C. Stuart Patterson, George Harding, Wayne MacVeagh, Dr. William Pepper, Judge T. K. Finletter, Samuel W. Pennypacker, Dr. Jayne, Judge Henry Reed, A. Sydney Biddle, Judge William Butler, Morton P. Henry, Judge James T. Mitchell, George Tucker Bispham, Justice Miller, Richard C. McMurtrie, Judge William McKenna.
After the wine had to some extent enlivened the party the turn taken by the conversation made it a most interesting event. The Justice said that during the war the most strenuous efforts were made to use the court in such a way as to embarrass the Government in its conduct of operations by endeavoring to get decisions upon such questions as the right of Mr. Seward to confine obnoxious persons in the forts, the right of Mr. Stanton to confiscate the property of citizens in the rebellious states, etc. One lawyer from Mississippi spent about two years in endeavoring, in various ways, to get a decision upon some case of this kind. Once upon an application to advance a habeas corpus case the court seemed inclined to take the action. The Justice took occasion to see a friend of Justice Nelson and tell him that it would depend upon how Nelson voted as to whether the case should be advanced upon the list, and since it was a matter simply of the methods and administration of the business of the court, it did not seem improper to talk to him about its effect on public affairs. Nelson afterward voted against the advancement. The Justice did more to prevent interference by the court than perhaps any other member of it. This brought up the subject of Jeremiah S. Black. The Justice said: “Black, as a man, was simply abominable, but there was no one who appeared before the court to whom it was so agreeable to listen. In hearing him you felt that you did not care a damn whether he was talking about his case or about any other case, but there was a wealth of illustration, a knowledge of the Bible and of Shakespeare wrought into his arguments which made you feel that you would like him to go on forever. On one occasion he had a case arising under the Civil Rights Bill from South Carolina, in which, characterizing the position of the other side, he said that there was no decision in any court in Christendom which would justify it. He then reached into his pocket for his silver tobacco box which was always there, took it slowly out, put into his cavernous jaws a mass of the tobacco and, as if it had just occurred to him, continued: ‘Yes. there is one case which may apply. It is that of Dido vs. Carthage. There you remember the land was bought by hides and the amount was determined by so many hides covering the ground. It occurred to one casuist there that the hides might be cut into strips and more land be got under them in that way. Now that case may be an authority for the other side.’
“He never was a sound lawyer. When he first came down to Washington, he had only been in the habit of getting ten and fifteen dollar fees, but he soon found that he could get almost any sum and he afterward charged enormous fees.
“Toward the latter part of the time he used to argue for the listeners and pay less attention to the law and would maneuver so as to postpone his cases until there were hearers. We humored him, more or less, in the matter. After the report of the Electoral Commission he, for the purpose of abusing us, appeared before the Commission. He said the most dreadful things. If it had been a court he would have been locked up for contempt. I would have locked him up for contempt within ten minutes after he began. Judge Strong, who had been a great friend of his, refused, afterward, for more than a year, to recognize him. At length, when Strong was going to Europe, Black wrote to me saying that what he had said was in a public capacity, that I had not taken personal offense at it, and asking me whether I would not see Strong and endeavor to present it to him in this light. I did so and they became reconciled. The more outrageous things Black said never were printed.”
This brought up MacVeagh who said with an assurance which is natural to him: “Strong felt it because he could not rid himself of the idea that he was sitting as a judge of a court which was a great mistake. You took the sensible view of it. You always recognized that you were not there as a judge at all.” “I was there,” replied the Justice, “as if I were a judge to decide the matter as nearly according to the law as it could be done and to do justice." “There is no use in disguising the fact,” said MacVeagh, “that the Commission was in no sense a court. The Commission decided in favor of Hayes and when I went down to New Orleans at the head of the MacVeagh Commission I overruled them.” “What is your view of the law of the matter, MacVeagh?” inquired the Justice. “When I went down there,” said MacVeagh, “I found that everything in fact was under the control of the Nichols Government. When a child was born he was registered by an officer under Nichols. When he died, probate was granted by an official appointed by the Nichols Government. Marriage certificates were taken out in its name. I established it de jure as well as de facto. With a grim and resolute President like Grant, with a Secretary of War like my brother-in-law, not over scrupulous, with an army officer like Sheridan, with a returning board not over scrupulous, if the Republicans could not get a majority of more than eight thousand, there was not much in their position.”
The Justice said:
“The Constitution of Louisiana provided years before that there should be a returning board empowered to count the votes and determine the result. It seems to have been foreseen that there might come a time when force might be used in an election and this was the means provided for meeting it. We considered that this was a subject within the control of the state. To permit Congress to determine the vote would have resulted in the destruction of the Government. That body never acts judicially. It would be like their determination upon the rights to seats which are invariably decided in favor of those in sympathy with the majority. So it would be in the case of a President. There was no doubt fraud in Louisiana as there was also the use of force. But our view was that the state must regulate the casting and the counting of the vote. It had developed this plan and had the power to do it. We saved the country at that time from anarchy and there has been little recognition of our service. The Democrats abused us and the Republicans have never come to our defense.
“Many Democrats have thanked me since for preserving this right to the states. There is more appreciation of it among the Democrats than among the Republicans. But unquestionably it was a grave crisis happily surmounted.”MacVeagh's attack did not meet the approval of those present; and Judge Mitchell said, hardly in undertones: “I have a good deal of patience, but it provokes me; it is as much as I can stand, to sit here and listen to MacVeagh talking his Independent Republican politics.”
The Constitution of the United States having been adopted in a convention held in Philadelphia in 1787, and from the national point of view this being the most important event in our history, it was determined to celebrate the centennial anniversary in a fitting manner in 1887. J. Granville Leach offered a resolution in the Law Academy that the Chief Justice and the Associate Justices of the Supreme Court of the United States be entertained by the bar of the city. The project took shape. McMurtrie was made chairman, Joseph B. Townsend, treasurer, and Pennypacker, secretary, of a committee to carry out the plan, but Leach and I did all the work. We gathered in the subscriptions by personal solicitation at ten dollars each, and made the arrangements. We gave the Justices a breakfast in the foyer of the Academy of Music on the fifteenth of September at which the Chief Justice, Morrison R. Waite, Richard C. McMurtrie, Judge J. I. Clark Hare, President Judge of the Court of Common Pleas No. 2; Justice Edward M. Paxson of the Supreme Court of Pennsylvania, the Honorable W. S. Kirkpatrick, Attorney General of Pennsylvania, and John Sergeant Wise of Virginia made speeches. Society ladies sat in the adjoining room and ate, drank, chatted and listened.
In connection with the same celebration the learned societies of Philadelphia, including the University of Pennsylvania, the Historical Society of Pennsylvania and the American Philosophical Society, gave a dinner in the Academy of Music on the seventeenth of September, which was perhaps the most imposing function that ever occurred in the United States. The subscription price was twenty-five dollars a plate. The ménus were entirely etched and cost three dollars each. Dr. William Pepper, Provost of the University of Pennsylvania, appeared the most conspicuously and Frederick D. Stone furnished the motive power. I was chairman of the executive committee. The President of the United States, Grover Cleveland; the Vice-President; the Chief Justice; the Secretaries of War and of the Navy; the General of the Army, Philip H. Sheridan; the English Ambassador, Sir Lyon Playfair; the French Ambassador, the Marquis de Chambrun; the governors of many of the states, with senators, congressmen, men of science and of letters, thoroughly representing the activities of the whole country, took part in the dinner. Mrs. Cleveland, who had been recently married and who was in the pride of her youthful beauty and popularity, held a reception in the corridors where ladies and gentlemen listened to the proceedings, watched the movements and decorations and wished for the terrapin. I wrote little books describing these banquets and both of them were subsequently printed. My connection with these affairs and the correspondence necessarily conducted brought me temporarily into almost intimate association with the Chief Justice and other members of the Supreme Court. Waite was a dark-eyed, good-looking man, well groomed, with much courtesy of manner, but he made no other impression on me.
As it happened, a few months later, for the first time in my life I had three cases in the Supreme Court of the United States and I went down to Washington, having arranged with a friend at our bar to move for my admission. He failed to appear. Seeing General Benjamin F. Butler, of Massachusetts, looking old, stout, weather-beaten, but sturdy, with his twisted eye fastened on a brief, I went over to him and said:
“General, you do not know me, but you did know my cousin, General Pennypacker, who fought in your command on the James. I have been disappointed in not finding a Philadelphia lawyer here, whom I had expected to see, and I should be much pleased as well as honored if you would move for my admission.”
He turned that eye on me a little athwart and said a little gruffly: “But the rule requires a personal acquaintance. Do you know no one here?”
“Oh, yes, I know all of the Court.”
Just then the justices filed in and each of them in turn nodded to me with a smile, a recognition unusual in court and accorded to no other man there.
“I shall be glad to make the motion,” said the General; and at Pennypacker's Mills, along with the papers and letters that relate to the two banquets, is the parchment scroll that certifies my admission to practice in the Supreme Court — on the motion of Benjamin F. Butler, Esq.