400 - MEMOIRS OF LUCAS COUNTY James J. French was appointed judge of our Common Pleas by Gov. William Allen, in 1874, and served one year, to fill the vacancy occasioned by the resignation of Judge Seney. He had been educated—I think—at Harvard, came from Boston, and was a polished and cultivated gentleman, exquisitely neat in his dress and elegant in his manner. He became converted to the Catholic belief after he came to Toledo, and lived in rooms he rented at St. Vincent Hospital. I have often visited him in his rooms, which were furnished with all the comforts, dear to the heart of a bachelor. He was quite fond of his pipe. When he got it under way and was seated in his easy chair, with jets of smoke wreathing themselves about his face, he grew reminiscent and told me many an interesting story about Webster and Choate and Everett and Ben Butler, who frequented the Boston courts when he was a student there. Again, he was fond of philosophizing, speculating on the future, summing it up that it was our duty to make the most of ourselves, to do what we could to help those who were within our reach and needed help, and God will take care of the rest. He had an abiding faith in the Catholic church. It was reassuring and restful to hear him express it. After he went on the bench, he insisted on members of the bar taking off their coats and hats before entering the bar and of standing while the judge walked into the court room and took his place on the bench, and that attorneys should invariably rise before addressing the court. He was a good deal of a Chesterfield, a thorough gentleman and a warm friend. Judge Lockwood came to Put-in-Bay, in 1865. He had been Territorial judge in Nebraska and, his term having expired, he located at Put-in-Bay. From there he came to Toledo and opened an office in the King Block, at the corner of Summit and Madison streets, immediately over what is now the Second National Bank. Afterward he formed a partnership with Clayton W. Everett and went with him into the Yeager Block. He was elected to the Common Pleas bench, in 1880, on the Democratic ticket. I knew him principally as a judge. A better, more agreeable or pleasanter judge to practice before, I never met. He was extremely refined, very intellectual, thoroughly read in history and literature, and a very delightful companion. He was rather slender, with black hair and eves. classical features, and extremely white complexioned. .His sterling integrity was marked in every line of his face. At the close of his term. Judge Lockwood went back to Put-in-Bay, where he had a small farm and vineyard. He was appointed by the Probate Court of Ottawa as assignee of the Riviera estate and was very successful in the management and sale of this very large property. He realized for the creditors something like thirty cents on the dollar on an indebtedness -of about $15,000. He died in Sandusky, a few years since, leaving a host of friends. At the close of Judge Lockwood's term, in 1884, Judge Pike was elected as his successor. Judge Pike was too partisan and one-sided to make a good judge. He did not have the judicial temperament. Charles Dodge and he were always at cross purposes. Dodge was a large, heavy-set, heavy-faced man. a good deal of a bull-dozer. and BENCH AND BAR - 401 perfectly indifferent to the feelings of anyone he addressed, especially if he did not like him—and he did not like Pike. On one occasion he was trying a case before Pike and the judge became actively interested on the other side. The judge interjected a damaging remark t0 Dodge's case, when Dodge turned to him and inquired : "Judge on which side of this case are you retained ?" On another occasion, Judge Pike rendered a decision against Dodge and occupied about an hour in giving his decision. The court room was full of lawyers and Pike naturally felt a degree of pride in the opinion he was rendering and that it was more or less an illumination of the legal points decided. When he concluded, Dodge arose, very gravely, and said : "If Your Honor please, I do not know now what Your Honor has decided. When I find out I will know what order to ask Your Honor to make on the docket." Joseph D. Ford was an interesting figure at our bar. He studied law in the office of Baker & Collins and was admitted to the bar in 1867. He was tall and rather massive, with brown hair, long, heavy, full beard, blue eyes and light complexioned. He had an honest, homespun manner that was quite engaging to the honest farmer and the average juryman. He was elected prosecuting attorney, in 1871, which office he held until 1878. He was an excellent examiner and cross-examiner of witnesses, had a vein of humor, and was apt to neutralize the effect of damaging testimony by some witty remark. He had a way of talking to a jury, as though he were sitting at their fireside and giving them his views in a conversational, confidential manner, that was very persuasive and successful. During the excitement of a trial his face remained as impassive. as that of a good poker-player. An item of evidence would come out that really hit him a blow between the eves. The jury would look at him to see the effect. He would be perfectly unconcerned. make some remark, indicating that he knew about the evidence given and that it did not amount to anything, and the effect of the evidence would be gone. I remember once trying a case, with Frank Hurd, for the Pennsylvania Company against the barge, Turner. The Turner was going down the river, one evening, when the wind was blowing a gale up the river. The bridge tender on the Pennsylvania bridge could not open the bridge on account of the wind. He had succeeded in opening it partially when the Thrner ran into it, smashing the draw and causing damage for which we brought suit. "Joe" Ford, as we called him, with Kent Hamilton, defended the boat. One of the bridge tenders testified that as the Turner approached them the captain called out : "Open your son-of-a-gun of a bridge or I'll open it for you." I thought when this testimony was given that we had made a strike. When Joe cross-examined the witness, he said : "The captain called the bridge a son-of-a-gun, did he ?" The jury laughed and the effect of the testimony was gone. He was trying a case before Judge Pike, in which the judge was dead against him all the way through. In his address to the jury he said : "Now, gentlemen, it is evident that the court is against us on the law, but I want you to remember and the 402 - MEMOIRS OF LUCAS COUNTY judge will charge you that, while he decides the law, you are the final, the sole, and the supreme judge of the facts. If you find the facts in our favor, you should give us a verdict, no matter what kind of law the judge gives you. It is the glory of our law that the jury are superiors, even to the Supreme Court of the United States, on a question of facts. This case does not depend on the law, but on £he facts. It is not a case for a judge but a case for a jury, and that is the reason why we are trying it to a jury." He succeeded in instilling into the jury that the judge did not cut much of a figure and that they were the whole thing, and in the face of a red-hot adverse charge, they brought in a verdict for Mr. Ford's client. Mr. Ford died, in June, 1894, in a hotel in Cincinnati, universally mourned by the bar and the people of T0ledo. Late in the seventies, a suit was brought by the representatives of the estate of a man named Anderson, of Kentucky, against James W. Myers, on a note for $5,000. Myers had bought from Anderson the celebrated horse, Vanity Fair, for $10.000—$5,000 in cash and a note for $5,000, to be paid if the horse made 2:27 within three years. The horse was warranted by the seller as being perfectly sound. Vanity Fair trotted a race at Buffalo and made a record of 2 :27 within the three years. But Myers claimed that she came in on three legs ; that she was defective in the left hind leg and was so at the time he bought her, and refused to pay the note. Suit was brought on the note by the estate, Pratt & Wilson appearing for the estate and John F. Kumler for Myers. Mr. Kumler set up in his answer a breach of warranty; that the horse was lame in the left hind leg ; that on acc0unt thereof defendant had expended a large sum of money in carrying the horse around the circuit, and for the expenses, to his great damage, for which he prayed judgment. Mr. Kumler went to Kentucky for the purpose of taking the deposition of the man who had trained Vanity Fair. On his way down there he visited his brother, Judge Kumler, at Cincinnati. When the Judge learned his brother's purpose he begged him not to go, saying that he would never come back alive, and citing him a number of thrilling instances where foreign lawyers had forfeited their lives for their temerity in venturing into a lawsuit for an outsider, against a Kentuckian on his native heath. But John was young, obdurate and enthusiastic and proceeded into the wilds of the Blue Grass region. Soon after he arrived, the man whose deposition he expected to take invited him to take tea with him. John accepted the invitation, proceeded to the farm of his host and was highly entertained by that gentleman, who exhibited to him about a hundred of the best bred horses in Kentucky. The next morning, when this gentleman was put on the witness stand, he said to Mr. Kumler : "I will ask you as a favor to get through with me as quick as you can. A number of gentlemen are here from the East to whom I expect to sell some horses, and time is precious." This gentleman was represented by Senator Beck. Mr. Kumler replied that he wanted to ask him but one question, after proving that the witness had originally trained Vanity Fair, and this was: "What, if anything, did you notice was the matter with BENCH AND BAR - 403 Vanity Fair, at the time she was delivered to Mr. Myers ?" The witness turned to Senator Beck and said : "I don't want to answer that question. Do I have to answer that question ?" The Senator answered that he certainly did ; when the witness said he had an indistinct recollection that the hair on the left hind leg showed signs of having been burned at some previous time. This was all that Mr. Kumler wanted. It corroborated Myer's claim that the horse was lame on the left hind leg at the time he bought her. Mr. Kumler; accordingly, dismissed the witness. The room in which the deposition was taken was crowded with men, and among them Mr. Kumler noticed a young man with a gun, who seemed to take a great deal of interest in the proceedings. As Mr. Kumler went out he overheard him say : "That is the curly-headed Yankee who is trying to beat our estate out of $5,000." He followed Mr. Kumler to the postoffice and from there to the hotel, his gun being in evidence all the tithe. Mr. Kumler expected to leave on the train at i i o'clock that night. The manner in which this youth pursued him, taken in connection with what his brother had told him, made John a little fearful that he might have some trouble in getting away at that time. He told the landloard that he was going out of town away a short time and wished to retain his room for a couple of days, when he would return, and he paid for his room two days in advance. He walked down to a livery stable and engaged a team and driver to take him to Paris, about eighteen miles away, from which place he took his train for Louisville and thence to Toledo. On the day when Vanity Fair was to trot her race in Buffalo, the traiher I have mentioned telegraphed Myers : "Is Vanity Fair in good fix ? If so, she will win the race, and I will make all Kentucky drunk." During his argument, Mr. Kumler waved the telegram dramatically in the face of the jury and inquired : "What did he mean by this question, 'Is Vanity Fair in good fix ?' Ah! gentlemen, he knew that when he turned Vanity Fair over to Jimmie Myers she was not in good fix." The jury found no cause of action for plaintiff and gave Myers a verdict of $3,000 damages on his cross-petiti0n. In 1880, James Compton commenced a suit in the Lucas County Common Pleas to establish and enforce a lien against certain property in the possession of the Wabash, St. Louis & Pacific Railway Company, which had been owned by the Toledo & Wabash Railroad Company, in favor of equipment bonds owned by him to the amount of $150,000. In 1862, the Toled0 & Wabash Railway Company issued a series of bonds, amounting to $600,000, known as equipment bonds ; no mortgage was made to secure these bonds. In 1865, the Toledo & Wabash Railway Company consolidated with several Illinois companies and formed the Toledo, Wabash & Western Railway Company, owning a line of railroad extending from Toledo to the Mississippi river. In the articles of consolidation it was agreed that the indebtedness of the Toledo & Wabash Railroad Company, which included these equipment bonds, should be protected by the consolidated companies. In 1873, this c0mpany made a mortgage, known as the gold mortgage, which was 404 - MEMOIRS OF LUCAS COUNTY afterward foreclosed and the railroad sold, but without prejudice to the holders of the equipment bonds, and the purchaser turned the property over to the new 0rganization, known as the Western Railroad Company. In May, 1879, the Wabash Railway Company made a mortgage to Humphrey Hadley to secure bonds for $200,000,000. In August, 1879, the Wabash Railway Company was consolidated with the St. Louis, Kansas City & Northern Railway Company, and formed the Wabash, St. Louis & Pacific Railway Company. In June, 1880, the company made a mortgage to the Central Trust Company of New York, to secure an issue of bonds aggregating $50,000, The suit commenced by Compton, in 1880, to establish and enforce a lien on the property originally held by the Toledo & Wabash Railway for $150,000 of an issue of $600.000 equipment bonds, was tried before Judge Doyle, in 1882. Compton was represented by John G. Milburn, of Buffalo (the gentleman who entertained President McKinley at the time he was assassinated), who was at that time a young man, and Rufus P. Ranney ; the defendant was represented by Gen. Wager Swayne and his staff of assistants in Ohio, Indiana and Illinois. It was claimed by the defendant that equipment bonds issued by the Toledo & Wabash railroad were no more than so many notes on account, a general indebtedness ; that no mortgage had been given and recorded as provided by law to establish a lien ; that the road having been consolidated with other roads and repeatedly sold under foreclosure proceedings. and purchased by persons who had no notice from the records of the counties through which the road ran of this claim of the equipment bondholders, that there. could be no lien, and nothing more than a claim against an insolvent corporation for money loaned to it. John G. Milburn opened the case for the plaintiff, and modestly said that the real argument would be made by his distinguished associate, Judge Rufus P. Ranney ; that he was simply a pioneer and would endeavor to clear up the brush wood and blaze the way for his associate. It was evident, before he got through, that he had exhausted the subject, and there was very little left for Judge Ranney to do. For all. of which Judge Ranney gave him full credit. His argument was so effective that General Swayne took leave at the conclusion of the hearing to file additional briefs that were prepared thereafter. Mr. Milburn said that when the Toledo & Wabash Railway C0mpany and the Toledo, Wabash & Western Railway Company were c0nsolidated, the Toledo & Wabash Railway Company become extinguished and like a man that was dead. When a man died his indebtedness became a lien on his property, prior and superi0r to that of any heirs 0r subsequent holder. He claimed that the same rule should hold when a corporation was defunct and that the consolidated company took it in trust for its creditors, with their claims a fixed lien that no amount of subsequent liens, considerations and foreclosures could affect. Mr. Milburn told some of the lawyers here that he put in three solid months preparing this case. That he went into his private office, locked the BENCH AND BAR - 405 door and permitted admission to no one until he got through with his work of preparation. Judge Doyle adopted his view and decided the case in favor of the plaintiff in an opinion that is a good model of orderly and logical argument, clear and convincing, holding that the $600,000 was a lien on the property of the Toledo & Wabash Railway Company, subject only to those claims that were made a lien prior to the consolidation of this company into the Toledo, Wabash & Western Railway Company ; that it was a lien growing out of a trust, subject to the payment of which the title of the property is held ; that the agreement of consolidation was notice to the consolidated company and all subsequent purchasers of the lien of the equipment bondholders. After Judge Doyle retired from the bench he was associated with Milburn, and assisted him in defending the case in the Supreme Court of Ohio and prosecuting it in the Supreme Court of the United States, both of which courts affirmed Judge Doyle's decision. The case is now before a referee to ascertain and fix the priority of liens, etc. It is another illustration of the vexatious delays of the law. It is now twenty-five years since this suit was commenced, and it is not yet finally disposed of. Judge Doyle was an ideal common pleas judge ; he followed and comprehended the bearing and competency of evidence at all stages of the trial. His rulings were prompt and almost all were correct. It frequently happens that a lawyer who has carefully prepared his case, marked out the course of witnesses, fortified his questions with authorities, will have his case ruined by the incompetency of a judge. For instance, he will be leading an adverse witness along a certain line by questions that are undoubtedly competent, and his success depends upon his not being interfered with until the witness has unconsciously testified to the fact that makes his point. The adverse lawyer will see what is coming and vigorously object. The judge will think there is something in the objection and allow a discussion that will reveal to the witness the danger point to which he is drifting, and the plans so carefully laid by the hard working lawyer are defeated. Judge Doyle was so bright and quick that he would comprehend such a situation from the start, and understand the lawyer's purpose and object, and when an objection was made to a question promptly overrule it. shut off all discussion, and allow the lawyer to proceed and make his point. Judge Pugsley was very much like Judge Doyle in this respect, and it was a great comfort to try cases before them. In 1890, Kent Hamilton and I were engaged in prosecuting an action for the Cooper Manufacturing Company, of Mt. Vernon, Ohio, against the Milburn Wagon Works, for a balance due on account for an engine sold and delivered by plaintiff to defendant. The balance due had been in the form of several notes made by the Milburn Wagon Company to the Cooper Manufacturing Company. These notes were long pa zt due, but for some reason or other the Milburn company had not paid them. probably because it didn't have the money. On one occasion. whenn John Cooper, president of the plaintiff company, was 406 - MEMOIRS OF LUCAS COUNTY very hard up, he had called upon the Milburn Wagon Company and pressed it earnestly for payment; the officers politely but firmly declined to pay 0n the ground that they had not got the stuff. C00per went into the room where the engine was at work, running the machinery of the works, and took from it a coupling apparatus about the size of a man's fist. This piece of machinery was absolutely essential to the running of the engine and could not be duplicated. Every wheel in the factory stopped. Mr. Cooper told the officers of the company what was the matter, and that if they would pay him one of these notes he would restore this coupling and the factory could go ahead with its work. The officers were in such a dilemma that there was nothing to do but pay the note and take their revenge later. When the other notes came due the company refused to pay them and Cooper was c0mpelled to commence a suit. The Milburn company put in as a defense that the steam engine purchased from Cooper was not up to the standard to which it was warranted, and claimed damages for a large amount as a counter-claim. We were handicapped with a stranger for a client against a company that was a popular Toledo enterprise, and the officers and directors of which were well known and popular citizens and personally acquainted with the members of the jury. The action of Cooper in removing the piece of machinery and stopping the factory, which had so incensed the officers of the c0mpany, prejudiced the jury. Mr. Hamilton handled this feature of the case very skillfully. He pictured the financial clouds lowering on the house of Cooper, black and gloomy, and Cooper vainly wandering from bank to bank, like a disembodied spirit in the corridors of everlasting punishment, until finally he comes to Toledo and appeals to the hard-hearted officers of the Milburn Wagon Works ; and when he sees the appeal is in vain, in a fit of desperation he takes possession of this coupling and stops the machinery. Kent walked up and down in front of the jury, in imitation of what Cooper was supposed to have done, fumbling with the supposed coupling in his pocket, saying : "Gentlemen, I am s0rry to resort to this extreme measure, but I need the money, and if you will pay up one of these notes, I will set the engine that you have not yet paid for running again." He was happy enough in his imitation of Cooper and in depicting the straits of the Milburn officers to get the jury to laughing and to do pretty much away with their prejudice. Kent is like a good trotting horse. He has to be warmed up before he does his most effective work. He started in on his argument, quietly and in a conversational tone. As he proceeded his subject grew on him, his voice gradually rising, and the argument poured forth a resistless torrent of eloquence. He described this engine running all the machinery of that immense factory all these years, without a stop or break, in such a manner that I could hear the movement of the piston and feel the timbers of the building vibrate and quiver. Barton Smith defended the company with all the ability for which he is 'noted. The result was the disagreement of the jury, and we afterward settled the case by a compromise. BENCH AND BAR - 407 Mr. Hamilton has been a very successful lawyer and is well qualified to hold any position at the bar, from that of supreme judge down. He has that which is higher and better than all of them—the reputation of being a first-class trial lawyer. He would make a good probate judge. The office would not be so lucrative for him, perhaps, but it would be great for the widows and orphans. In 1881, Gov. Robert K. Scott, of Napoleon, was indicted for the murder of Warren G. Drury, on Christmas morning, shortly after midnight, 1880. He retained Charles H. Scribner, John McSweeney, James M. Ritchie and J. M. Haage to defend him. On Christmas eve, after Governor Scott had returned to rest, his wife, becoming anxious about her son, Robert K. Scott, 'Jr., a boy about fifteen years of age, persuaded her husband to get up, go out in the street and hunt him up. It was then about midnight. Governor Scott arose, dressed himself, put on a light overcoat and went out on the street. A loaded pistol was in the lower, right side pocket of the overcoat. He proceeded to a bonfire, where a number of men and boys were gathered, celebrating the Christmas-tide. Governor Scott's son who was nicknamed "Arkie," had been around with Drury, a young man twenty-three years of age, who clerked in a drug store, both of them drinking to excess. Drury had taken "Arkie" to his room over the drug store and put him to bed. Governor Scott inquired of the people at the bonfire if they could tell him where "Arkie" was, and was told that he had gone with Drury to the drug store. Scott walked over to the drug store, and, finding it dark and locked, knocked at the door. Drury came to the door and. in response to the Governor's inquiry, replied : "He is not here." The Governor said he would like to see for himself. The Governor walked around the store room, finally came to the door leading up to Drury's room, and was about to open it when Drury planted himself in front of the door, saying : "These are my private apartments ; you can't go up there." Governor Scott reached for his revolver, the revolver exploded, the bullet passing through Drury's chin into his head, killing him almost instantly. Governor Scott's son, who was upstairs, being aroused by the report, cried out, "Pa. Pa." His father ran upstairs, found his boy, brought him down, felt of Drury's pulse and ran over to the hotel, wringing his hands and crying that he had killed Drury, bewailing the tragedy and insisting that he had no intention of shooting him. According to his account, when Drury declared that he could not enter his apartments he had placed his hand on his hip and he, Scott, had instinctively reached for his revolver, only for the purpose of frightening Drury into permitting him to go into his rooms and get his son ; that he had grasped the revolver by the barrel and the hammer and caught in the cloth while he was pulling it from his pocket, and it had gone off and accidently killed his victim. The event created great excitment and indignation, and many persons declined to accept Governor Scott's explanation and believed it was a case of willful murder. The case was prosecuted by Martin Khupp, prosecuting attorney ; Walter Stevenson and James R. Tyler, a criminal lawyer of consid- 408 - MEMOIRS OF LUCAS COUNTY erable reputation in Wood county. The defense was conducted by Judge Ritchie, John McSweeney, J. M. Haage and my father. Judge Ritchie, in clean, clear English and in logical order, stated the facts of the case to the jury for the defense. His statement was made in a dignified, impressive and convincing manner that was peculiar to the judge. With the solemnity befitting the occasion, he gradually detailed the facts in a candid, luminous way that was calculated to win the sympathy of his auditors and convince them that they were absolutely true as he stated them. An image of a man, the height of Drury, was produced, and it was shown that if Governor Scott was standing in front of it that the course of the bullet through Drury's head was in a line direct from the lower hight hand pocket of Scott's overcoat. My father never had the slightest doubt but what Governor Scott's statement as to the manner in which Drury was killed was true in every particular, but there was one thing that perplexed him almost to the close of the trial. If the revolver went off while Governor Scott was pulling it from his pocket, by reason of the hammer being caught on the cloth of his coat, it must have gone off at half-cock. If it went off at half-cock the projection from the hammer would leave a certain indenture in the shell of the cartridge at a certain place, and if at full cock a different indenture at another place. The impression in the cartridge shell showed that the pistol had gone off at full cock. My father spent days and weeks, and all the time during the trial, trying to account for this discrepancy, but never doubted for a minute that it would be cleared up before they got through. John McSweeney took long chances ; he loaded the pistol with blank cartridges, walked in front of the jury, pulled it from his pocket, and it went off with the same result, as far as the cartridge was concerned, as it did in the hand of Governor Scott at the time of the tragedy. The prosecution's explanation of the course of the bullet upward from beneath Drury's chin, was that Governor Scott had drawn the revolver, pointed it at Drury's face, and Drury had thrown back his head, and thus received the bullet under the chin. When one of the counsel for the prosecution was making his argument, he discovered the peculiar indenture in the shell of the cartridge, and called the attention of the jury to it, saying that it could not have been made while Scott was drawing the pistol from his pocket ; that it was made when the hammer was pulled back to full cock and must have been made after Governor Scott had drawn the pistol from his pocket and cocked it, and then leveled it and fired it at Drury. While he was manipulating it my father never took his eyes from it. The lawyer happening to grasp the revolver by the barrel while he was pulling back the hammer, my father noticed that the moment he took hold of the barrel and stopped its revolution, the projection in the hammer immediately flew around to full cock. The problem was fully solved. The pressure on the hammer in connection with the stoppage of the revolutions of the barrel would place the pistol at full cock, no matter where the hammer was, and Governor Scott's BENCH AND BAR - 409 story, immediately after the tragedy, that he grasped the revolver by the barrel and was pulling it from his pocket when the hammer caught, causing it to explode, was entirely consistent with the indenture in the shell of the cartridge, showing that the pistol was fired at full cock. This discovery contributed materially to the verdict that saved Governor Scott's life and vindicated his reputation. While he was in the army, the Governor received a severe injury, causing him such intense agony that it became necessary for his doctors to administer morphine. This was continued until the morphine habit became fixed on Governor Scott, and during the trial it was one of the difficulties that his counsel had to encounter. The argument was opened by Warren Stephenson, for the prosecution, who was followed by Charles H. Scribner and John McSweeney, for the defense, and closed by J. R. Tyler, for the prosecution. The following are some extracts from the argument of Charles H. Scribner : "After that, in the early part of the evening—witnesses speaking at a venture put it at eight or nine o'clock, but it matters not which it was—the boy, `Arkie,' is found in Kneeland's drug store, where Drury was employed as a clerk. While the boy was sitting there the defendant comes in. He had learned that the boy was there ; he has a little message for him, a little errand for him to do ; he comes in where his son is sitting and hands him a little box ; he has just made a purchase at the jeweler's—rather, he has selected two rings ; the mother of the boy desired to make him a present the next day is Christmas—the happy Christmastide is near at hand. and this gift is inspired by the mother—poor, sick, feeble woman—and she has asked the Governor to buy these rings for the purpose of allowing her to select one for her only son. With this little box in his hand, the Governor goes to where his son is sitting, in the drug store, and he says to him ; 'My son, take this box to your mother, and don't open it.' The boy goes off with it. He is gone some short time and returns again to the store, where there seems to be some strong attraction for him. When the Governor came in and handed the boy the package, it appears that the witness, Tanner, was there, and that he saw the Governor come in and heard him deliver the message and the package to the boy, and saw first the boy and then the Governor go out. Tanner went out for a little while and afterward came back and found the boy there again. While Tanner, Drury and the boy were there at the store, Mr. Kneeland, the proprietor, went out, and while Kneeland was absent from the store, as Tanner tells you, the boys drank from a bottle that was standing behind the counter. The mischief was commenced, gentlemen, with that bottle which stood behind the counter. . . . "I do not purpose to go over with       the sworn statement of the Governor, as testified to by him, about what transpired at that time, but I will refer to the testimony of other witnesses. You will find in the testimony of other witnesses that when Governor Scott had entered the drug store for the last time, but a short time intervened before he was seen coming away from there. What was his manner 410 - MEMOIRS OF LUCAS COUNTY at that time—that is, immediately when he was seen coming along with his boy from the drug store ? We may, in his manner and conduct, read something of the story he has told. We have Tanner's and Meekison's st0ry for that ; they noticed his manner. Meekison thought that it was .because the Governor had discovered that his boy was drunk. He saw the Governor going along the street, in rapid strides, toward the hotel, with his boy hanging on his arm, the Governor wringing his hands in great mental anguish. That his heart was hurt and bleeding for the drunkenness of his boy—the pride of his heart—he is walking the streets wringing his hands, his drunken boy by his side, and he is suffering all this and the th0ught that the situation is bad enough to have to take home to a sick mother a p0or boy, miserably drunk. That is what Mr. Meekison and another witness supposed was the cause of his agitation. "But this is not all that occurred. Tanner speaks of the same thing, of.the Governor walking along the street, suffering, apparently, mental anguish, agitated and excited. Now, gentlemen, was that the conduct of a murderer ? Was that the conduct of a man who willfully stained his hands in blood, or was it the conduct of a man of peaceable, noble, generous impusles, whose kindness of heart and courtesy in his intercourse with his fellow-citizens had established forever this reputation among his neighbors? Why, there you see, speaking out of the manner and conduct of the defendant, and that in unmistakable terms, these very qualities of the heart and mind, which the neighbors say with unanimous N oice belong to him. It was because he was a man of kind heart, noble, generous disposition—a man not disposed to do wrong to anyone, a man disposed to kindness and good will. "It was because of all these qualities that, upon that night, although he hall been grossly• wronged by that young man, who had taken his only boy around the drinking saloons of the town and got him drunk—notwithstanding that the young man was responsible for all this, yet the father of that misguided boy, forgetting all, not knowing that he was looked upon by any but the God above, not knowing that he was looked upon by those who meet him on the street, this father spontaneously gave vent to the feelings and anguish of heart which rent his soul. Then again, his manner, his statements at the hotel ; he goes in there and tells immediately what has happened ; there is no concealment, there is no suppression of the truth ; he speaks out and tells what has happened. He calls on his God, bemoans the transaction and appeals to those there, Tor God's sake, go and see if something can not be done for this young man.' And yet, gentlemen, it has been suggested to you in the argument that when Governor Scott left the store he pulled down the curtain of the front door to conceal the fact of the killing. Yet he hastens to the hotel and begs them there, if possible, if help can be sent, to send it to the unfortunate young man. "He hands over the pistol, just as it was, removing nothing, interfering with nothing, the pistol with the unexploded cartridges and the exploded one, when the sheriff calls for it or directs that it should be BENCH AND BAR - 411 handed over to him—in all things acting like a true and honest man, avoiding all falsehoods and prevarications, confirming in this the character his neighbors have given him before you. . . . "He had been told that the boy had been seen to enter the store with Drury but a few moments before. Here was Mr. Stout, who was driven back with violence, and it occurred to the Governor that something happened to the boy. Why would Drury, the boy being there, deny that he was there, unless there was something wrong with him? Of course, it would occur to any father, under the circumstances, that Drury was denying that fact. Certainly, the Governor was impressed that something was wrong with the boy, and therefore his anxiety was increased; and hence it was that he said, 'I beg of you to let me have him.' Here was a father begging of this young man, Drury, to let him have his own boy to take him to his mother. I was calling your attention, gentlemen, to the language of the Governor in which he said that he begged of the young man to let him have his boy. 'If there is anything the matter, if he is hurt, I want him so much the more. If you are denying now that the boy is here because there is anything the matter with him, why so much more do I want him.' And so he appeals to this young man to let him have his child. Well, what did Drury reply ? 'Your son is well taken care of, or is cared for, and will be all right.' I remarked to him in reply that that assurance was all well enough, but it did not satisfy his mother, and it did not satisfy me.' I then said : 'If there is anything wrong, you need have no fear to let me take him. I am not a brute ; I never struck him nor laid a hand on him in harshness in my life ; he is our only child and you should let me take him.' "Why, think of this father standing there and begging for his boy. `If there is anything wrong with him.' Not knowing the circumstances operating in the mind of Drury, utterly ignorant of what had trans- pired or taken place. 'If there is anything wrong with him, you need have no fear to let me take him. I am not a brute ; I never laid a hand on him in harshness in my life. He is our only child, and you should let me take him.' . . . "It seems that the young man placed himself in the attitude of resistance, reached out with his left hand, placed his right hand to his pocket ; at that moment the explosion occurred, the ball struck the young man under the right ear, he fell forward on the counter or the desk, and thence rolled and fell upon his back. . . . Now, if you remember, gentlemen of the jury, the son was almost immediately over where this transaction occurred, concealed in a passageway. Doubtless the explosion of the pistol aroused the boy from the condition of the stupor he was in and he called out 'papa.' Probably when Drury thrust him in the passageway, Drury told him that 'your father is here and I must conceal you.' . . . "Now, you have there, gentlemen of the jury, from the lips of the defendant, under the sanctities of the oath he took, the account of this transaction ; and reading it, gentlemen, in the light of what previously occurred, in the light of all the surrounding circumstances, it bears 412 - MEMOIRS OF LUCAS COUNTY upon its face the impress of plain, straightforward, unvarnished truth. The conduct of the defendant confirms what he has said, as do also the circumstances following the transaction. Now, again, as he has himself stated and as witnesses have stated, when he came into the office of the hotel, he gave an account, in a brief, hurried and excited manner, of what had occurred in the drug store. "And, gentlemen, you're to remember the condition of Governor Scott when he made these statements ; his agitation under this excitement; the fact that this trouble, this calamity was bearing down on his mind,—all these things are to be taken in consideration by you, when you listen to the statements he made to those witnesses. I think when I call your attention to those statements, which he says he made there that evening, that you will see that they are practically the same as those made by him here upon the stand ; you must take into consideration the circumstances under which they were made. For example, suppose a witness had' undertaken to explain what occurred to him in an open boat on a dark night, during a storm on the sea, and that words had passed back and forth, and that the witness should undertake to detail to you what those words were, what would you say ? Here we, in undertaking to consider what was detailed, must remember that what he undertook to detail occurred in an open boat at sea, during a storm, on a dark night, in circumstances of great excitement and agitation. Now, here, the Governor bursts into the Miller house and briefly details the occurrence ; and the witnesses attempt to tell from memory what he then recounted to them. And I claim from their statement a complete corroboration of Governor Scott at the hotel and on the stand." Warren G. Drury was a very popular young man in Napoleon and in Elmore, from which place he had come to Napoleon ; a man of good address and good habits, and it was a pretty delicate business to attack him, either directly or indirectly. Observe. how cautiously these great forensic orators approach the subject of the dissipation of these boys on that eventful night. It was Christmas eve. Under the excitement of the approaching Christmas festivities, they were drinking and drinking to excess ; and when they have brought their auditors to the proper pitch, how grandly they strike all the strings of the harp in denunciation of the cursed drink that was the cause of this deplorable tragedy. John McSweeney was a tall, massive man, with a very commanding presence. He had a musical voice, with a slight brogue, and a delivery so magnetic and animated that he captivated and delighted his audience and finally took it by storm—I might say by an electrical storm. The following extracts from his speech, in defense of Governor Scott, will give the public some idea of the magnificent eloquence of the greatest criminal lawyer of his time. In his argument to the jury Mr. McSweeney said : "I appear before you, in weakness when it should be in strength, to perform my part in presenting the case of Governor Scott's defense before you. I am relieved of much of the responsibility and of the BENCH AND BAR - 413 labor for reason of the thorough examination that has been made of the case on the part of the defense by my brother and old friend, Scribner, and I will not enter even upon the threshold without publicly recognizing the great ability he has displayed ; nor will I be invidious enough to pass without deserving compliment the gentlemanly, high-toned and manly professional style of my brother who opened the case upon the part of the prosecution. Things have been done becoming the solemnity of the occasion, decently and in order. It is a position that the world knows but little about—of a lawyer having for the time the responsibility of the life or liberty of the citizen, apparently partly within his keeping, depending somewhat upon the exertion that he may display or the management that he may exhibit in the conduct of his cause. It is a position full of nervousness to a nervous man. It is not a position to be sought, but, by the chivalry of our profession, it is not one to be avoided. "There is no choice at the call of friendship of my old friend, Governor Scott ; I could not be deaf to his appeal. I came amongst you a stranger ; I have nothing but plain spoken words to offer you, and I say to this vast throng today, What came ye out to hear ? Only a reed shaken by the wind. I come in humility before you ; I come feeling the sensation of the great responsibility and of the shortcomings and want of power to present this man's defense as it should be. If there were within me any prayer that I ever uttered for one moment, for the old Pentecostal gift of fiery tongue, it would be on this occasion. If I but had it, and could bring it clown from the sky to use in behalf of the old citizen, the old crippled. invalid wife, and the erring boy that has had much to do in the production of this terrible calamity ! But the silver and gold of eloquence I have not, but such as I have of plain, common sense, as one man talks to another, that I shall give you freely, and having discharged my duty to the best of my ability, the responsibility at last comes home to you "I will discuss the question of what Governor Scott was doing at the time of this unfortunate transaction. When a person is engaged in a lawful proceeding or act, and, without any intention to injure, unfortunately kills another, such killing is a misadventure and is excusable ; and it is actually written down in other states in order that the matter may be made clear. So that, if Governor Scott was in a rightful proceeding, invading nobody's rights. intending to inflict no injury, then sudden quarrel or no sudden quarrel, then per unfortuncam, accidentally, he killed this young man, with no design to kill, it is one of the misfortunes, it is one of the misadventures, that are strung along this checkered pathway of our life. The books are full of cases of this kind. Misadventure and misfortune beset the best of men and all along the walks and ways of life. I know of no standard of perfections or imperfections that saves us from the operation of that which Byron calls circumstances— '____ that incorporeal God, Which marks the ways and paths that by man are trod.' "The poet almost deifies it—that incorporeal God. Circumstance 414 - MEMOIRS OF LUCAS COUNTY —that directs our pathway. Now, when there is no intent to injure, the law, like the juryman, looks at this heart of ours—this harp of a thousand strings. The law tries to get at that heart. The law does not try to punish overt acts, merely. You remember the old law maxim, the translation of which runs something like this : 'The act does not make the crime, unless the mind be guilty'—the act does not make the crime, unless the mind is also criminal. This is the philosophy of it ; and that maxim was so old that there was no English to write it in until fifteen hundred years after it first found its way onto the books. "I go out hunting, and in the dim forest I think I see some game, it matters not what ; and my suspicions are confirmed by deer and bear tracks ; I see and hear a rustling in the bushes ; I creep forward stealthily ; and, as a cunning hunter, I quickly raise my gun and fire at the supposed game ; and—the bullet has pierced my brother's heart ! N0w, what is the law for such a case ? I am out hunting, my brother lies dead at my feet, killed by my hand. We parted early in the day, each in search of game, agreeing to meet at a certain time and place after our day's sp0rt ; and, under the circumstances I have already stated, I aimed, fired, and killed him. Now, what is the law ? I did it intentionally in this much, that I pointed at him, though I did not intend to kill him. I intended to do it, for I pulled the trigger and slew -him. Now, what is the law of God and man ? The act doesn't make the crime, unless the mind or heart sped the bullet. . . . "The facts have been so thoroughly gone over that you will understand that, in the law books, in the great pages of life, misfortunes confront us at almost every step on the way from the cradle to the grave ! In the cradle commences the drum-beat of the final march toward the grave ! Accident, misfortune, dangers fr0m fire, field and flood await us on every hand ; our last hour comes when least expected ; we pass from the stage of life, and are heard of no more, and all is over ! That is the kind of life we live. The railroad, firearms, slippery pavements, flood and fire, all the elements of which we are masters, turn and rend us ! We manufacture implements, and they come back to us with the very life we gave them, and lay us, their masters, at their feet ! Curious, curious, curious, indeed, is this organization of ours ! Now, gentlemen, had we a heart fatally bent on mischief, had we, had we? "On Dec. 24, 1880, on the night before Christmas, and I believe here the forepart of the little rhyme is : 'When all through the house, not a creature was stirring, not even a mouse'—when the Kristkindel' (Christ child) is filling the stocking of expectant little ones, and young heads are dreaming, and the mothers and fathers, the old gray heads, are living their youth over again, while filling their little ones' stockings with the North King's gifts, and they arise in the morning to live their childhood's days over again, and to see their children made happy—on this night before Christmas I want you to remember two parties. I want to see if, in the language 0f the b0oks that have been read to apply to us, anybody on our side had a heart regardless of social duty and fatally bent on mischief. BENCH AND BAR - 415 "Where are the parties that night ? The Governor, coming a little deception which you practice upon the children, steps into the drug store and says : `Arkie, take that home to your mother. Now, don't you open it !' You see how a man is but a boy again. And who would not be a boy again ? E'en in our own ashes live our wonted fires ! And as the young grow old they love to live their youth over again ! 'Don't open that, Arkie !' "He is to take home some rings to the almost bedridden mother ; and she is to quietly open the package and select which of the rings she will surprise Arkie with in the morning. I guess we were not fatally bent on mischief then ! That doesn't look like a heart bent on murder ! It appears like a man with the golden years of youth come back again ! Time, that steals our youth away, hath pleasures too ; the memories of the past shall stay, and so the joys renew. And so Arkie goes, and afterward comes back to the drug store. . . "He goes down there, the young man does, and Mr. Stout swears that they were there ; and he describes the condition they were in ; Mr. Drury was intoxicated and drank some more ; young Scott was refused any liquor on two different grounds : first, that in that house he could hever get a drop, and second, he had too much then. What then ? Now ! The clock or something indicates two minutes either before or after 11. The old gentleman comes down stairs and asks Stout where Arkie is ; he has stayed past his time ; his mother is anxious. Thereupon Stout tells him that he has gone for his watch and chain ; and the old gentleman supposed that, as he had broken it before, he had left it in the jeweler's, and that he would be there in a few minutes, and told Mr. Stout to send him upstairs as soon as he came. All right ! And he goes back to his room at peace with all this world ! The mother appears upon the scene at one stage there, and she wants to know. The father goes up and goes to bed. "Let me here remark, for fear I will forget it : In the incidents of war he was taken prisoner by the foe, and rather than go to the pens they called prisons, he jumped from the moving cars, and received an injury which will follow him until death closes the scene, and on account of which injury, and in order to enable him to perform the public duties thrust upon him, he resorted to the only anodyne which would effectively allay his intense pain. At this time he was suffering from the habit engendered by the taking of the drug as prescribed, which he feared and found was injuring him. You know how like a tyrant opium eating seizes upon and holds its slaves! It is a habit of such strength that the breaking away from whiskey is to the breaking away fr0m opium, as a summer breeze compared to a wintry storm ! No more terrific, startling things in the line of sensation are read or were ever penned by the hand of man than DeQuincey's 'Confessions of an Opium ' Eater,' in which that brilliant philosopher and essayist describes sufferings unparalled in the history of man—how he w0uld break away, and fall back again and again, until he could take 120 grains of opium; until the system would cry aloud like the h0rse-leech's daughter, give' until he could take 120 grains an hour. 416 - MEMOIRS OF LUCAS COUNTY "Governor Scott had got so far as to debate with himself whether the remedy Was not worse than the disease, and in this great struggle he was engaged, in this city ; and he says when he went upstairs that night he was tottering and weak and sought his bed ; for three or five days he had been making such a struggle, which requires more courage than it does to face an army with its banners, combating a habit which grows until the servant becomes a tyrant ! The old lady, the watchful mother, on the housetops and on the towers—these sleepless mothers when the boys are out—she goes down stairs in order to see about sending Mr. Stout for the boy. She slips down and lets the husband sleep. Mr. Stout starts out for the boy, goes down the street, and finds him in quite a rollicking crowd ; he finds Mr. Drury bossing matters there that evening ; he tells the boy that he wants him to go home, and gets him away, contrary to the remonstrances of Drury ; he gets him up to the door, when the lad breaks away from him and goes back ; and young Scott is received back by Drury and those who are backing him as a sort of triumph, and they regarded him as a trophy ; and in the language of a witness, some took his part and some took Stout's part but the boy was rescued from Stout by Drury. "What then? There arise cursing and swearing ; Mrs. Scott raises the window, as we gather from the testimony ; I need not turn to the notes—I want to give you a little history of this for the purposes I have. She heard this demonstration ; she had commissioned Stout to get her boy ; she hears damning and cursing against her messenger. How logical it is that she should reason : 'the messenger that I sent out after my boy went upon his message ; I hear threats against the life of my messenger !' How much reasoning does it take for the mother to suggest, if that is the condition of the messenger, how about the boy? There upon, how about the boy ? "She wakes up the husband. 'Husband, come to the window ! Hear the roar ! Is it well to slumber here ? Arise ! This is the night before Christmas ; you know, husband, how it was you who prevailed upon me to let Arkie go out this evening ; I fear there is something bad happened to Arkie ! Go !' The Governor gets up, puts his coat on —the first thing he gets he puts on—and goes down town, and, in going out, meets Stout. 'Where is Arkie ?' he asks. 'Why, he is over in the crowd ;' or, as Mr. Stout says, he 'thinks he is either in that crowd over there, or at the drug store.' I don't care whether it was then or not ! I am not going to 'stick in the bark' about these things. The Governor is undoubtedly correct when he says that he went over into the crowd. He goes on down ; someone says : 'I saw your boy go over to the drug store.' Ali right ! That is plain sailing. I will go over there.' He goes to the drug store and bangs away at the door, and can't get in ; but he thinks he sees the moving light. He goes back to the crowd all around there. .`Stout, where do you say the boy is ?"Why. he is either in that crowd, or,' he says, 'he is down at Kneeland's drug store.' "What is the Governor's language? 'Come along, and help find him !' Says Stout, 'I won't do it ! I don't want to get into that crowd over there ; they're making threats against me' and he says, rather BENCH AND BAR - 417 curtly to him : 'I won't go !' The state tried during the trial to make that very impressive—that he wanted Stout to go along ; and they asked Mr. Stout, how much did he press you to go along? 'Well, he wanted me to go along quite earnestly.' Yes, and forsooth, that is to prove guilt ! He was sure he was going to commit murder, and he wanted a witness ? To me that is one of the strongest circumstances to prove our innocence that night ! Now, we go along. He goes up to the hall in Bitzer's corner, and not finding any trace of him there, comes down upon the street again. 'Seen my boy ?' `I don't know your boy, Governor."Well, I will describe him to you ;' and he does so briefly. 'Yes, sir ; we have seen him just within a short time, going into Kneeland's drug store.' Very well ; he goes along, having no quarrel with anybody, just as he went through life without having any quarrel with anybody. He goes down there, and raps and kicks, and kicks and raps, but can not get in. He believes his boy is there. This was his second trip, and he thought he had pretty good evidence that his boy was in there. "By that time young Drury appears and has a colloquy with him. I don't care whether the curtain was up or down ; the young man could pull it up or push it to one side ; I have no time to fool away on that ; I will not stick in the bark on that. He comes there ; a colloquy ensues. 'Is my boy here ?"No, sir ; no, sir !"I understand he is, and have pretty good evidence that he is !"No, he is not.' 'Well, I will let you in and you can judge for yourself ! I will go and get the key and let you in.' Now, the Governor says that he let him in and again and again asseverated : 'Your boy is not here.' But I am informed that he is !"Examine around here, go through the premises, and if you find him, all right ! I tell you he is hot here !' The Governor says : 'I looked around, behind the counters—everywhere—went back to the rear of the store,' all smooth. He goes along ! He isn't here, but he is all safe ! He isn't in the premises, but he is all right.' The Governor says he commenced to reason with the young man, that he could not be all right ; and he says there is no place better for him than with his father and mother ; that nobody can take better care of him than his parents. 'The mother is up there, and won't sleep a wink unless that boy comes back with me ; now, if he is hurt, make a clean breast of it—if he is hurt, I will make no fuss about that ; I can not go home without that boy, and while I feel that he is here !' Still the falsehood on Drury's lips, 'He is not here !' "Who is bent on social mischief? Who is regardless of social duty ? Is it social duty or regardlessness for its claims that leads the father to get up at the dead of night and go out in search of his boy ? And Drury—how is he on the line of social duty. He is uttering the falsehood—the palpable falsehood—and the history of the case shows that it was a falsehood that the boy was not there. Oh I if that cursed liquor had been out of the young man's head—that stuff that these Thompsons. who are ornaments to their sex, deal out and then run and apologize for it--these Thompsons—if the liquor had been out of that young man's head, he would have had no trouble with old Father Scott ! If he had said : 'Governor, I will tell you h0w it is ! The boy 418 - MEMOIRS OF LUCAS COUNTY got too much tonight ; he is up here, but I don't want his mother to know where he is, and just let him stay here. I am making a clean breast of this ! Come up, come up, and see where we are sleeping. I'll show you where he is. He isn't hurt, and I will give you my word that nothing more will happen !' Have you any doubt what would have been said by old Father Scott ? . . . "Granted that there must be some evil in the world—but oh! if these liquor sellers would only limit themselves to comparative deviltry —eliminate the worst feature of their hell-holes, and not sell liquor to boys ! True men don't. 'When the wine is mantling rich on the leaf, and the bloom of youth and beauty paints the cheek, then is when the worm is at the root, then is when the destroyer comes !' Then the old man discoursed there, and I have no doubt with tears swelling up in his eyes, to this old rascal. It must have taken him by surprise : `I would rather, Mr. Thompson, that somebody would shoot my boy dead in his tracks than to have him grow up a bloated, reeling drunkard, as I have seen right in this town !' "It is a town fair to look upon, and attractive to the stranger. I see its spires rising heavenwards all around us ; I see all your denominations flourishing side by side, in a spirit of perfect toleration ; I hear many good things of your little town ; and if you would only eliminate some 0f these dog holes called saloons, which bring ruin to so many young men, you will be able, with your schools, your churches and your colleges, aided and encouraged by your fair women and brave men, to make your town a shining light on the mountain top ! Go on, grand old Napoleon, and make an Austerlitz campaign against this devil 'Alcohol !' Make yourself a tower on a hill, although you are almost within the borders of the 'Black Swamp.' "How was Governor Scott when he came up there to the hotel that night, making these declarations ? How was he ? Let us look at him ; let us see if there was this instinctiveness? Were the facts speaking through the party or was the party inventing the facts? Were the facts bubbling up, speaking through the party ? I intend to demonstrate to you as clear as God's sunlight on a clear day, with an unclouded sky to shine in, that Governor Scott instinctively had the motive and desire to let the facts speak through him. I don't pretend that, in his agony, he sat down and told to the one all that he told to the other, or to the other all that he said to each one. But no he comes up and says : 'I have had a terrible accident !' Mr. Stout says that he said he had done a terrible act, or a great wrong, or something of that kind. When he is cross-examined and re-examined it comes out thus : That he said he could not place the words ; that the `trouble,' that the 'deed,' and the 'accident' he could not place exactly as they belonged. And now, for fear I may forget it, I turn to the 3d Ohio State Reports, page 412, which contains a very learned brief discussion on the subject of the frailty of the human memory. Your own experience will tell you that, of all the frail memories, there is none so frail as the recital in a court of justice by a witness who has no possible interest in the transaction described. Frailty ! Thy name is confessional statements or admissions, details in a court of justice, BENCH AND BAR - 419 by witnesses ! Why ? Because no two men detail the same transacti0n alike. . . . "Now, this bullet did not come out, so that a man, fixing up this story, could say where it had gone ; but it did not come out ; and had to be cut out ! How did Governor Scott know in the darkness and agony, in his frantic grief—how did he know how to hit what the autopsy and dissection afterwards proved to be just exactly the mathematical truth? Suppose he had been lying? 'Well, look here, how is that? Do you say that you fired that shot from the hip?' `Yes, I did."Well, that is a pretty hip shot ; that is all I have got to say !' But the dissection and examination after death finally takes place ; and there comes up from the grave the dead for the vindication and protection of the living ! How did he know—when he told about this young man becoming belligerent, and how he lied to him—how did he know then that Rexford would ever come to his rescue? How did he know that these scenes, which you have heard recited here, would ever come to rescue him ? Does he say Drury got my son drunk that night? Not a word ! He had no knowledge of his conduct ! 'Governor, that is sort of a curious story about Drury ruining your son !' Rexford said he had never seen Drury so wild and excited before !' "Governor Scott did not express a word of resentment against Drury. How did he know that, instead of that which he said being corroborated, but what it would be contradicted? That is not the end of curiosities in this case ! He said : 'I heard my boy cry, Pa! What could I do but go and get him ? I went up there and found my boy shut up in that hallway, crying Pa, Pa!' Not being able to open the door, I went down again, r found those keys, and then returned upstairs and opened that door.' How did he know that he would not be suspected of a lie in that portion of his story ? Mr. Kneeland says, to his surprise, he found they had on that string a key which, Mr. Kneeland says, he never before knew would fit that door. I called attention to all these facts in order that we may see whether they are invented, or whether they are speaking through and for Governor Scott. What chance of contradiction was there, if he was lying? But, ah ! There were the footprints in there—on the floor of that dusty hallway—made by that boy. . . . "Who tells this story ? The man whose character has been described here ? Need I read from the books ? Let me tell your honor, in the presence of the jury,. they say that character is important in every class of criminal cases they say that in a doubtful case a doubt that is generated, either as to the overt act, or as to the motive, or as to the circumstances attending the act or, the disposition of the man—I read from the books—that a good character in a doubtful case is sufficient to turn the scale in favor of the prisoner. That is in five authorities that I have marked before You ; that, in a doubtful case, where. if the jury would doubt as to the motive, intent or heart, and this is peculiarly the case where the overt act is not in controversy, but the manner and the conduct of the parties are in doubt or question ; or say, not in doubt, but if, for the sake_ of 420 - MEMOIRS OF LUCAS COUNTY argument, it comes to doubt, they gay that a long, clear line of good character stands up for a man. In the olden time a man could fly to the City of Refuge, within whose walls he could not be reached ! In this land of ours we have no turreted towers or castle-keeps, where the erring make their home. In this grand, old, democratic republic of ours it is the character of a lifetime that makes our City of Refuge, where the destroyer dare not come in the day of our trial ! That City of Refuge, built in the abode of its glory—that City of Good Deeds, kind, generous, noble Scott has built in the course of the past thirty or forty years ! "When you put these old soldiers on the stand, how they break through, if the court please, all your little rules ! How their hearts swell and their eyes fill with the bubbling tears ! Scott ! At the very name you could see the tears gathering on their manly cheeks ! They say we just rejoiced when Scott was placed over us ! Fathers rejoiced and said : 'Scott has got our boys, and, excepting the incidents and accidents of battle, all else is well with our boys !' Such a City of Refuge I have seldom seen in my practice and in my poor day ! That man has a violent soul ! Read books, to apply to Scott, about a heart bent on mischief and regardless of social welfare ! Ah ! This character and the law books say that a character like that, especially when enveloped in mercy, charity and truth, in case of a doubt, is sufficient to turn the scale in favor of the prisoner." The case was given to the jury at 3 :15 p. m., Nov. 15, 1881, and a verdict of not guilty returned Nov. 16, at 8:15 a. m. John R. Osborn was a member of the old bar 0f Lucas county who ranked up with M. R. Waite, Charles Kent, Edward Bissel, George R. Haynes and the rest of the giants of those days. He was a little above the medium height, with slender figure slightly bent, and extremely refined, gentle and fatherly face—a very lovable man. He was a religious man, thoroughly devoted to his church, and practical in the performance of what he considered his religious duties. His office was across the hall from us, in the Drummond Block. I remember very well that, shortly after we came to Toledo, when my father and Mr. Hurd were on the anxious lookout for business, one morning he called at our office and retained our firm to assist him in an important case. The retainer was dictated by the pure kindness of his heart and a disposition to give the stranger a welcome hand, introduce him to the bar and give. him a start. I realized this then and have been grateful for it ever since. Mr. Osborn was a strictly temperance and total abstinence man. His consistent Christian character was well known to every one and sometimes led up to amusing situations. He and my father were trying a case on one occasion for Henry T. Niles. After the trial had commenced, they discovered, to their dismay, that Niles himself, the plaintiff, their client, and an absolutely essential witness, was not present. "Where in the world do you supp0se he can be ?" said Mr. Osborn. "I haven't the slightest idea," answered my father, BENCH AND BAR - 421 but I will telegraph to_____, and he proceeded to write a telegram, which he submitted to Mr. Osborn. It read : "Where in hell is Niles ? "John R. Osborn." Mr. Osborn read the telegram, looked at my father with eyebrows raised in amazed horror, and exclaimed: "My God, Scribner, don't send that." In 1874, my father and Judge James M. Ritchie recovered a verdict of $9,000 for Fred Shieber against the Wabash Railroad Company, damages for the loss of a leg. Osborn & Swayne ( John R. Osborn and Wager Swayne) defended. The verdict was set aside on the ground that the damages were excessive. On the second trial, the verdict was $6,000. Shortly afterward, the road went into the hands of a receiver, and the judgment was not worth the powder to blow it up. I was a young lawyer then, and, as a matter of practice, drafted and filed a petition against the stockholders. The outlook was almost hopeless for the reason that I could get service only on two or three local stockholders, whose holdings were nominal to enable them to act as directors ; the bulk of the stockholders lived in New York. After filing the petition, I soon forgot that there was such a suit. About two years afterward I was stumping Fulton county for Frank Hurd, who was a candidate for Congress. One morning, when I came down to breakfast in the hotel at Wauseon, I noticed in the papers that a meeting of the stockholders of the Toledo, Wabash & Western Railway Company would be held at the Boody House in Toledo, that day. I did not lose any time in getting back to Toledo. I went to the Boody House and obtained from the register a list of the names of the stockholders enrolled there as guests ; proceeded to the court house, issued a summons and instructed Albert Moore, the sheriff, to serve it on the entire party at their meeting, which was to be held in the afternoon. I was in my office in the afternoon, about the time I imagined the summons would be served. It was not long before I heard, through the partition that separated our office from Osborn & Swayne, Mr. Boody, president of the Wabash, talking in loud tones to Mr. Osborn, using language that was not altogether free from profanity. The substance of it was that Mr. Osborn could settle with us for $3,000, and if we would not accept that sum he was to fight us until a very warm place was frozen over. In those days a petition in error was not reached in the Supreme Court for about seven years, and Mr. Osborn was surprised at the promptness with which I accepted his offer. On one occasion, I was trying a case against Mr. Osborn, in which I had dragged the town for evidence and introduced witnesses without regard to age, color, sex, or previous condition of servitude. Mr. Osborn, in commenting on my testimony, suddenly exclaimed : "Why, gentlemen, he has called in as witnesses here 'spirits from the Vasty Deep.' " On one occasion, shortly after I was married, in a trial against Mr. Osborn. I quoted to the jury the celebrated passage from Ruth : "Whither thou goest, I go ; thy people shall be my people, and where 422 - MEMOIRS OF LUCAS COUNTY thou diest there will I be buried." The next time he met my wife he said : "Your influence on Harvey is already having its effect. He has commenced to quote Scripture to the jury." In 1832, his father, Ralph Osborn, who was then Audit0r of the State of Ohio, which position he held for seventeen years, sent his son to Lexington, Ky., for a law course in the school at that place. There were no railroads in those days and his father presented him with a horse on which he rode, with his belongings in the saddle bags, through the wilderness to the Ohio river at a point opposite Maysville, where he crossed and proceeded to Lexington. He was admitted to the bar, in 1834, and settled in Norwalk. In 1853, he was retained by the original companies that were afterward consolidated into the Wabash and secured for them the right of way through Ohio and into Toledo. He was attorney for the company up to the day of his death and managed its business successfully and with distinguished ability. He settled permanently in Toledo, in 1858. He was a gentleman of the old school, and was indeed a gentleman and a consistent Christian character. At the time of his death he was the senior in years and practice of our bar, having been engaged in the practice sixty-three years. He died July 5, 1897, at the age of eighty-four, leaving a memory fragrant with the love of the bar and the people of his adopted city. In 1886, my father's health broke down. He had an attack of nervous prostration which compelled him to retire from the practice. After his health was partially restored, in the course of two or three years, he was elected to a position on the Circuit bench, which he held until the time of his death, in February, 1897. At the time he retired from the practice he was attorney for the Lake Shore, Michigan Central, the Pennsylvania, the Cincinnati, Hamilton & Dayton, and had been counsel for the Clover Leaf and the receiver of the Ohio Central. After he retired, these railroad companies folded their tents like the Arabs and silently stole away. I found myself with one poor railroad company, the Cincinnati, Hamilton & Dayton. Columbus C. Waite, better known as Kit Waite, the president and general manager, very kindly kept me as attorney of his company as long as he held his position, which I think lasted about two years. He gave me carte blanche to settle all personal injury cases that should in my judgment be settled. I settled them all. I did not beat down the widow and orphans and cripples, made so in the service of the company, or squeeze the blood out of them, as so many adjusters and—I am sorry to say—attorneys do, but paid them what I thought was right, taking into consideration the nature of the injury and the extent of liability. In this I was heartily endorsed by Mr. Waite. The saving in the expenses, costs of litigation and occasional heavy verdicts, more than offset the amount paid in settlement. The effect of this policy tended to strengthen the company in public opinion and popularize it among the employes. Frank Hurd was elected to Congress in 1874, 1878 and 11382. From 1882 until 1887 he was engaged, either in politics or law business, in the city of New York, and was not connected in the business BENCH AND BAR - 423 of our office, excepting in name. In 1887, he came in the office and said that he had given up politics and would devote himself strictly to the law. We reorganized our firm under the old name (he and my father had clone business under the firm name of Scribner & Hurd), and made a specialty of personal injury cases. These cases are taken for a fee of one-third or one-half of what is recovered, according to the character and prospects of the case. If no recovery is had the lawyer receives nothing and is out his time, labor and considerable expense. On one occasion when Mr. Hurd and I were trying one of these cases, counsel for the defendant commented on the fact that we were working for a contingent fee and criticised that kind of practice. Mr. Hurd. in reply, quoted the saving of Jeremiah S. Black, a celebrated lawyer of Pennsylvania, "that the contingent fee was the poor man's retainer." Without the contingent fee the man who is wrongfully crippled and the widow whose husband is killed by the negligence of his emplorer would be without redress. While the proportion taken by the lawyer seems to be large, the persons who win must not only pay for the work done and money expended in their own cases, but also for those who lose. and when the losses and winnings are equalized, the attorneys receive no more than they actually earn. The lawyer who engages in this kind of practice. instead of being condemned, should receive a great deal of credit. He gives his time, money and talent to secure justice for the poor and oppressed that would otherwise be denied. The attorney for a corporation works for a fixed salary. He must defend all cases, good, bad or indifferent. The only thing he has at stake is his reputation. If he is unsuccessful, he can lay it to the prejudice of the jury. He is often compelled to defend cases when his conscience protests at every step he takes. He often defends cases and is successful when he knows that if all the facts had come to light the judgment would have been against him, and he has been able by his ability and superior knowledge, and the lack of knowledge on the part of plaintiff's counsel, to defeat the just claim of a man who has lost a leg or arm or of a woman and her little ones who have lost a husband and father. He is not to blame, for his client has a right to a trial by a court and jury. and if he declines to defend the case would set himself up as a court and jury and practically deny his client the right the constitution and law of his country guaranteed him. It is his business to defend his client and see to it that he has the benefit of all those rights that the law and rules of evidence give to him. For all that, he is very far from being in the position of the lawyer who takes a case for a widow and her fatherless children, who have been deprived of a husband and father and his support by a shocking and cruel accident that is the result of negligence and fault of his emplover. In the first place. he would not take the case unless he believed it had merit and it was founded on justice. He would not take it for no 'other reason than because he could not afford to. It is hard enough to win these cases when they have merit to support them, and no lawyer with any standing would touch a case in the justice of which he had no confi- 424 - MEMOIRS OF LUCAS COUNTY dence. He makes his fight and gives his time and money in what he believes is the just cause of a widow and her helpless children. In doing this he has the approval of his conscience. If he is successful, he has the satisfaction to be able to compensate in some degree the widow and her children for their loss and receive their blessings and gratitude. From a moral standpoint, the lawyer who works for a contingent fee in these cases is immeasurably above the corporation lawyer who works merely for money and oftentimes in cases that in his heart he condemns. After Mr. Hurd had returned to the practice his great reputation brought pretty much all this kind of business into our office. The Lake Shore company, under the policy of John C. Newell, contested all personal injury cases, good and bad, the result of which was to incense the court and jury, not only against the Lake Shore, but against all other companies. Verdicts were rendered anywhere from $5,000 to $30,000. F0r the succeeding ten years there was a harvest of personal injury cases, until, in fact, the railroad corporations realized the folly of their course and they did what they should have done in the first place—made reasonable settlements of these claims before they got into the hands of the attorneys. The personal injury lawyers brought about this condition of affairs and they are entitled to the credit of it. Frank Hurd had a shapely and graceful figure. His face was classic and not unlike that of Octavius Caesar, with a broad intellectual forehead, and brown, expressive eves, which, during the trial of a case, were full of fire and animation. His personality was overwhelming. When he commenced an argument he spoke in tones so low that his auditors strained their ears to hear him. In that way he secured absolute silence. As he proceeded the audience moved along with him ; his voice increased in volume, and with it the interest and delight of his hearers, until those trumpet tones were reached that had the effect of martial music. Mr. Hurd had no idea of the value of money, and no ability as a financier. When he was in Washington, in Congress, he would draw a draft on some friend in Toledo, instruct him to draw back on him, and keep the drafts going until he had raised the money to meet the paper. This he called financiering. He had all the confidence and free-heartedness of a boy, and was fraternal and boylike in his intercourse with his friends. When an application for financial assistance was made to him, the amount of financial assistance he gave depended altogether on the amount of money he had. He had a keen sense of humor and would always see the humorous side of any situation. He came into the office one morning, and I was reading the paper. I looked up and remarked, incidentally, "Foulkes has made an assignment." "What is the matter of Foulkes ?" he said. "Too much debt." A prominent priest, a great friend of Mr. Hurd, was in the office one day inveighing against the saloons and denouncing them unmercifully. "I don't know, Father," said Frank, with a twinkle in his eye, "the saloon isn't such a bad place. It is cool in the summer, warm in the winter, and there is always plenty to eat and drink."