John G. Johnson: Lawyer and Art Collector, 1841-1917 [Reprint 2016 ed.] 9781512808810

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JOHN G. JOHNSON

John G. Johnson Lawyer and Art Collector 1841-1917 By BARNIE F. WINKELMAN

UNIVERSITY OF PENNSYLVANIA PRESS

Philadelphia 1942

Copyright 1942 UNIVERSITY OF PENNSYLVANIA PRESS Manufactured

in the United

States

of

America

London Humphrey Milford Oxford University Press

To HAMPTON L. CARSON Whose great talent recognized a greater

Acknowledgments Grateful acknowledgment is made: To the many members of the judiciary and bar whose kind interest made this work possible. To many whose recollections and reminiscences are here recorded, but who have already passed on. To Joseph Carson, Esq., who made available the resources of his own library, including the invaluable Scrap-Books of former Chief Justice James T. Mitchell, and who has kindly read the manuscript. To Emanuel Friedman, Esq., personal representative of Mrs. Edward Morrell and of the other members of the family, for his complete cooperation. To Walter Penn Shipley, Esq., and George Stuart Patterson, Esq., for uniform helpfulness and important data; to Maurice Bower Saul, Esq., and Judge Thomas D. Finletter for—in addition to other help—the use of rare photographs. To Henri Marceau, Curator of the Johnson Art Collection, for assistance in the preparation of special chapters. To the officers of the Pennsylvania Company for their kindness and courtesy. To old friends, associates and employes of Johnson for a continuing interest. B.F.W. Philadelphia October 15th, 1941

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Contents Chapter

Page

Acknowledgments I II

vi

The Johnsons of Chestnut Hill

1

The Central High School

12

III

The Rush Office

21

IV

The Bar and the Crisis

33

The War Comes to the Law Academy

42

The Wars of the Grandfathers

53

The Great Popularity

66

Where There's a Will

77

V VI VII VIII IX X XI XII

The Panic of 1873

84

Marriage

91

For Lawyers Only

101

The Bar Sheds Its Ruffles

111

XIII

Libel and Forgery Make Headlines

119

XIV

Disunion in the Union League

129

The Family Grows Up

137

Tremendous Trifles and Some Damned Dead Horses

148

XV XVI XVII XVIII XIX

Building an Art Collection

158

A Merger in Sugar

170

Leader of the Bar

182

Mr. Johnson Goes into Conference

195

The Northern Securities Case

207

Bills of Divorcement

224

XXIII

Dissolutions in Oil and Tobacco

234

XXIV

The Private Gallery of Esquire Johnson

245

The United States against the Steel Corporation

252

An Arch-Monopolist Grows Old

268

XX XXI XXII

XXV XXVI XXVII XXVIII XXIX XXX

A Man to Remember

279

A Legacy and an Art Heritage

285

The Legend and the Tradition

295

A Question Unanswered

306

Bibliography

316

Index

321 [vii]

Illustrations JOHN G. JOHNSON From, the painting by Leopold Seyffert of the University of Pennsylvania

Frontispiece School

in the Law

Facing JOHN G. JOHNSON, Soldier in the Union Army From a photograph, 1863, now in possession Thomas D. Finletter JOHN G. JOHNSON, As a Boy From a photograph now in possession Saul, Esq. JOHN G. JOHNSON, As a Young Man From a photograph—about 1870—now Maurice Bower Saul, Esq. IDA POWEL JOHNSON From a photograph—about Edward Morrell

of

page 50

Hon.

74 of Maurice

Bower

74 in possession

of

98 1880—in

[ix]

possession

of

Mrs.

I

The Johnsons of Chestnut Hill N o w

the city's proudest

suburb

rests c o m f o r t a b l y on h e r wooded hills and in her neat valleys. On shaded lawns and in quiet halls the men of finance and business r e l a x f r o m their cares and burdens. B y telephone their offices in the Quaker City are at their elbows. B y train their banks and shops are a brief half-hour away. T h r o u g h F a i r m o u n t P a r k swift automobiles glide over smooth roads, covering quickly the few miles to the heart o f P h i l a delphia. At night the darkness that used to be holds no terrors. On the main stem of Germantown P i k e electric trolleys c l i m b effortlessly the l o n g slope f r o m Queen Lane and Mount Airy. T h e continuity of homes and stores is unbroken. T h e arms of the city have reached out to take to itself the remote settlement. Near the site of the J o h n son smithy, a trim gasoline station stands. Only here and there an old house, set back f r o m the bustling street, recalls the slower tempo, the simpler way of life of another era, that is so recent and yet so irrevocably gone. T h e figure of David J o h n s o n that emerges f r o m the obscurity that has engulfed the straggling village of Chestnut Hill of the R o a r i n g Forties is vague and shadowy. It rests upon few authentic f a c t s — random items in the l o c a l j o u r n a l , a few lines in faded directories, the rolls of the c h u r c h , the inscription of an eroded headstone—conflicting gossip and less revealing tradition, the varying recollections of the oldest inhabitants, the fertile imagination o f neighborly pride, even a possible m a n t l e of silence. Hearsay evidence mostly, but none of it irrelevant or i m m a t e r i a l . It was a h e a l t h y year, 1 8 4 0 , in the development of young A m e r i c a . H o p e was r e b o r n , faith flourished, courage and enterprise tried out their muscles, recovered f r o m the c r a m p and sag of two depressions. T h e panic of 1 8 3 9 h a d come hard upon the faint lift in 1 8 3 7 ' s lean season, but that was over—forgotten in the first r i p p l e of the mighty tide r o l l i n g W e s t .

[1]

JOHN G. JOHNSON

There was boundless wealth in the West for anyone with the courage to reach for it; there was good hard money circulating in the East for those clever enough to grasp it. Banks were functioning again, without artificial priming. The distrust and disillusion which had followed failure upon failure of "pet banks" were being blown away by the healthy breath of panting industry, rushing to meet a faster-rushing demand. The shipyards clanged with a ceaseless hammer, supplying a merchant marine which was unfurling its sails in every port of the globe. A gargantuan infant, Big Industry, let out a natal wail. In the quiet culture-corners of the old Eastern cities, those who neither rushed to the West nor dived into the foundry idly developed the American doctrine that luxury is the birthright of every citizen. There would be gaslight for every house, paving for every street, turnpikes and canals, or better, a railroad for every destination, and astute promoters and business men to furnish them. It seemed a happy union when David Johnson, yeoman, took to wife slim, serious Elizabeth Graver, carefully reared daughter of John Graver, farmer, village butcher, and cattle dealer. The latter was not of the gentleman farmer school: he tilled his own soil, killed his own pigs, thought his own thoughts—and taught his children to do likewise. His thrift equalled his industry, and his pride topped both. For each of his eight daughters he had made ample provision. Elizabeth's will could well match David's brawn. Together they turned their backs on the past—the unemployment, the closing banks, the lost savings, the puzzling, fluctuating paper, the hunger and bewildering misery of the recent yesterday. They had food and shelter, strength and love—and a new decade. Down in Washington Mr. Van Buren was behaving scandalously, according to the Whigs. But Chestnut Hill was a Democratic community, so let the talk run. It was good to have something to discuss as you went about your work. In the South the people were having trouble with their slaves. Some were escaping North—helped by misguided but stubborn Northerners. A new political party had made its appearance, its only platform the abolition of slavery—something else to argue about. In the West there was talk of gold and fabulously fertile acres. That was f a r away; here at home there were crops to be harvested. The young couple settled down on the Graver farm where Graver's Lane now crosses Germantown Avenue. The Gravers were substantial citizens. For thirty years, since John Graver with Levi Rex had lent his name to Readheffer's Perpetual Motion Machine in the Cress Tavern, nothing had marred the solid worth of the clan. Graver men were in the schools—as supervisors and as janitors; they were active in

[2]

THE JOHNSONS OF CHESTNUT HILL fraternal organizations and in church affairs. Graver misses and spinsters taught the young. The Graver f a r m paid its taxes. The pull of the horse on his rein and the press of the hard earth against the plough were no challenge to the strength of young David. The daily chores of rubbing down the team, bringing in the cattle, setting the traps for fox and weasel offered no stimulus to the eager mind tugging at the nerve centers, urging him to be out and away, a part of what was going on. David's forebears had come over with the first and had become firmly rooted, not only in the soil, but in the town hall and the church. Like the Gravers, the Johnsons had a hand in things. David chose his work to match his brawn and satisfy his lust for social contact. J u s t around the corner from her father's farm he established his wife in a little house of her own (now 8428 Germantown Avenue). A few doors beyond, he set up his blacksmith shop. Across the way was Gold's Hotel, with plenty of life; next door another hostelry, noisy with the boast and jokes of draymen and travelers. These were not first-class stop-overs for the private carriages of great folk, but shelters for teamsters and transient workers where lodging might be had for a few pennies on a straw pallet dragged out on to the barroom floor, after the last toast had been downed of an evening. The rough teamsters were not authorities on politics and economics, but they knew a thing or two. The price of produce was going steadily up. Boys f r o m the f a r m were getting good wages as longshoremen, clerks, cartwrights, and cordwainers, or as factory workers in Philadelphia. The City was still a long way off—south and east, down, down the Avenue, fourteen miles by stagecoach, which made two trips a day. Things were booming all around. The election was near. Van Buren would be out. Never had they heard the like—Royal Wilton carpets on the floor, silk tassels and satin medallion in a blue elliptical salon. "Whig t a l k , " David might say with a smile. And if his Whig adversaries put forth too sound an argument against this Bourbon display, an extra clank on the anvil with David's massive hammer drowned out further discussion and his own blistering expletives. David was not always the perfect Democrat; at times he had ideas. They might not have been radical, but they showed a mind not afraid to strike out for itself. Sometimes Elizabeth was proud of these mental pioneerings, but frequently her practical background spoke out against flights of fancy. "You'll be turning into a Millerite one of these d a y s , " she might say, as she flicked her duster with the determined gesture David used with his hammer. The Millerites flourished in busy Chestnut Hill as elsewhere in the East and in the Middle West. In the old community they had had some

[3]

JOHN G. JOHNSON

trouble establishing themselves, but a determined struggle finally had won them recognition and permission to hold meetings in Union Chapel —which was open to " a n y responsible sect needing a place of worship." The Millerites had held out for use of the Baptist Church, but the youthful pastor was not to be moved. " I f the Lord had wanted anyone to know when he was coming, he would have told Brother Y o u n g , " explained one pious lady, who spoke for the congregation. In the little village of a hundred-odd homes, three inns, and at least two schools, the single Baptist Church served the population of well over five hundred. Other denominations were represented, however, holding their services in the Union Chapel. The Methodists had had to fight for this privilege at first because their neighbors mistrusted this " n e w " group. Chestnut Hill had been settled back in the sixteen hundreds by sturdy sons of the Palatinate under Pastorius—converts, many of them, to the Quaker teachings of William Penn. Summerhausen they had called their settlement of the German Township, in homage to the abundant chestnut trees. Close upon them had come the English. The Church of England had its communicants—the Presbyterians and Quakers too. T h e Germanic strain had become only an ingredient in the mixture. Down in Washington things were somewhat calmer at the outset of the new decade. General William Henry Harrison was not apt to squander the national resources in tassels and gilded carriages. A dark horse who had ridden in on a slogan rather than a platform, at first he had to do nothing more than recline on his buckeye bench, drink hard cider, and scorn the elegance of Mr. Van Buren. But now he had a big j o b on his hands to guide the nation through these rushing waters, churning with dissension in the South, bursting its new boundaries in the West, burning with new thoughts, new ways of living and earning a living in the great industrial North. The Millerites still drew their quota. The Coming of the Lord was proclaimed on Germantown Pike. A house here and there was deserted by devout followers of this new Messiah who preached the end of the world. Just at the time Elizabeth and David had settled down, the prophet's zeal was rapidly making converts. All this was nonsense to the young Johnsons and the practical Gravers. But the strange mixture of discontent and adventure that was in the air hung heavy over the young blacksmith. It was something more for David to discuss on his visits to the hostels and taverns, or with the men who stopped at his forge to learn the latest news. David always got the news. The stagecoach stopped by his forge for inspection, and f o r each bit of gossip he gathered another in payment. Private carriages paused to make sure that every hoof was sound before striking out for

[4]

THE JOHNSONS OF CHESTNUT HILL

the less certain roads to the west. Gerraantown Pike ran on to faraway Reading and Lancaster and Bethlehem, and all the more vague and distant towns and cities, north and west out of Philadelphia. The whole surge westward seemed to sweep through David's door. As time went on David became less interested in what went on in the homes of the Rexes, the Hinkles, the Stollmans, the Sellerses, the elegant Williamses. Or even in more vital events like the mutiny on the Creole, the slave ship steered into a Bermuda port by its cargo. Slave9 and slavery were the background of much of the gossip, and of the silences too. For prudent men in politics and business now avoided the topic. As she swept the floor and watered the plants, Elizabeth could move to the rhythm of David's hammer, easily heard down the quiet road. As the hammer stopped for the turn of a shoe or the fitting of a horse, the wife unconsciously paused in her work, and her thinking. She had a lot to think about those first few months too, because things were happening in her life. It was early in the spring of 1841—April 4—as President Harrison passed away, that her son was born. So David turned his back on Gold's Hotel with its talk of plantations in the West, and on the next-door hostelry. He still had an ear for neighborhood gossip, he still could not resist striding out to meet each stage and carriage that clattered by, but he showed a new interest in the noisy young visitors who never failed to stop on their way from school, fascinated by the rhythm of the metal and the matching rhythm in the muscles rippling in the red glow. Perhaps his boy would look like that husky, young savage with half an apple in his cheek, or maybe he'd be more refined, like the tall, lanky one with the pile of books. John Johnson would grow up to be something, because he would have opportunities that David never had —the West, the big jobs. Elizabeth had more practical dreams. He would have all the schooling they could give him, which probably would not be as much as she would like, but at least he would have a trade to go into, if he had the strength of his father. John early gave this promise. He grew steadily, and before he was a year old he was a real chore for Elizabeth to carry about. Nevertheless, every Sunday he was dressed in his best and taken to church with his mother and father. David cast off his work shirt and leather apron for these occasions, shaved carefully, plastered down the wild dark hair, and groomed himself to fit his position as a landmark, and as mate of a Graver. There was no set style for church-going. A few came in the latest mode—high-collared coat, short waistcoat, tight-fitting trousers strapped

[5]

JOHN G. JOHNSON

under neat shoes, black silk cravat tied in intricate fashion around a starched, uncomfortably high, white shirt collar, and a beaver hat not too modest of brim. The ladies bustled in tight-waisted silk, billowed by many petticoats. The simple farm women came in starched ginghams, their men in shirt-sleeves, often shoeless. Even the young girls carried their shoes until within sight of the church door. After church there was a pleasant social interval, on the steps in fair weather, or lingering in the pews for precious minutes of village gossip. There were weightier topics too, which the pastor had perhaps brought to light in a fiery sermon. The Mormons were to be considered. Out on the broad plains of the Middle West things were going on which thoroughly shocked the God-fearing villagers. The corner grocer might chuckle a bit over this, but his wife brought him up sharp enough. The Millerites, too, were a matter of concern to substantial citizens. Their preachments, nurtured on the despair of the panic years, thrived on the hysteria of boom-time. A great tent was set up in Germantown where followers gathered to await the Day. Farms were sold, wives deserted, children abandoned by many who donned the white robe of ascension. A diplomatic switch in the date, when nothing happened, failed to dampen the ardor of the pious. Coming up the Pike from the city one day, David read a sign on a closed shop door: This shop is closed in honor of the King of Kings who will appear about the twentieth of October. Get ready, friends, to crown him Lord of all. The nation was rolling on reckless but sturdy wheels. The trek of its citizens quickened the pulse of the young nation; affairs across the ocean touched its vitals. There were revolutions in Europe, and famine. The Germans came in greater number; the Irish too. The gaunt men and dark-haired, white-skinned women with the bleak look of hunger in their eyes made their way into the foundries and factories. But the native workers met them with active hate. The protest flowered ominously into riots everywhere in the East. Gradually they died down, only to flare up again with increased violence. David found life at his forge more and more irksome. He was the hero of the village children, the friend of the passing traveler. Always it was hello and goodbye, as the wagon wheels rolled past. He was always there. That is, his great body was there, bending over the glowing metal. But his active, imaginative mind was off with the horse he had just shod—headed for Lancaster. There it would be left, and the man who so casually had waved him farewell would go on to Buffalo, and from there across those great unknown plains and hills to the El Dorado of the Sierra Nevadas. Gold. It seemed as if the whole country

[6]

THE JOHNSONS OF CHESTNUT HILL

was moving west for the gold. Two of David's teamster friends had started out the week before. Just yesterday he had heard of one of the poorest workers f r o m Germantown, who had toiled long hours in a grist mill on the Wissahickon—now he was back from the West and had bought a four-story house in Philadelphia. Sudden wealth was on all sides. Not so much from the gold as from the new industries, cotton mills, lumber yards, and ships and shipping in these parts. Blacksmithing, which had seemed so important a few years ago, was just a menial task for one who lacked courage and brain to grab the greater opportunities of these swift days. Tomorrow he would speak to Elizabeth. No use staying here grubbing out a bare living. John would have the grand new world for his own. But tomorrow the young wife would have another baby to think about. No time now to consider traveling over the perilous plains. That was no place for the infant son of a Graver wife. Here in the East were known pastures, a sure living, a sound roof. William was not such a self-reliant youngster as John. With two children Elizabeth was tied closer to her home, but she still listened to David's bits of gossip. They had caught a runaway slave right down in Germantown just a few days ago, carted him off to Virginia. In Plymouth Meeting, just four miles up the Pike from Chestnut Hill, the Quakers were holding abolitionist meetings. Not openly, David had heard, but secretly, in each other's houses. There was talk of opening the little meetinghouse for discussion, but public opinion was too strong for that. Philadelphia—and the little villages and towns for a wide radius about it—was still a Tory stronghold. No longer the first city of the land, it still was the conservative, quiet, well-upholstered guardian of colonial elegance and manners and reactionary opinion. Northward, however, the little communities that followed the gentle teachings of George Fox, openly and covertly, held their abolition meetings and operated several stations on the underground railway. Another election came; there were new occasions and endless possibilities for heated argument. But always the central themes remained the same—slavery and the broader plains and wider horizons to which the brain of the smith was geared. Day after day now, Elizabeth would be stopped in her chores by the silence at the forge. The hammer must wait while David ambled across the street or next door. Always there was new excitement. Perhaps Elizabeth grew a bit impatient at these digressions—and Elizabeth was no woman to disapprove in silence. The children—there were three now—were coming along nicely, and John was big enough to run errands for his mother and do little things around the place for David. Now they might really get somewhere. Why, the dullest carpenter could command four times city wages out where towns were going up overnight!

[7]

JOHN G. JOHNSON

Elizabeth might wonder. She had heard tales too. She had listened to David's stories of the goings-on in these pioneer towns. Few of the travelers who stopped their horses at the Johnson posts suspected the seething fires of ambition that smoldered beside the forge. Not that his calling was a thing any man in the village would scorn. The combination of strength and skill, of brawny arms and deft stroke, was sufficiently rare to command respect from old as well as young. It was a bitter draught for David to work endlessly at his tasks, while the prospect of distant horizons beckoned, and the sun rose and set in an aura of adventurous excitement. That was a day when disillusion in the brownstone fronts of the city and the taverns of the village was dissolved in dissipation. There was sodden despair on the streets of Philadelphia of a Saturday night. The long hours of toil found their release, but there were other things that weighed more heavily—disappointment, disapproval, and stony silences. The Gravers were able and ambitious, and tolerant of all things but failure. Many of them were pushing steadily ahead in these bustling days. David, once sunk in the general gloom, was now utterly crushed by the glorious burst of apparent prosperity—the bright silks and new satins, the twinkling candelabras, blazes of wax candles, glittering equipages and prancing horses, the thunder of brass bands and fireworks. The appearances of the Johnson family in the little church became infrequent and then ceased. David finally made a partial surrender to his routine. Elizabeth was right. There was no place in the unknown for his growing family. Alfred, the youngest, was bright and clever; William, a mischievous little fellow, full of ideas, afforded the Johnson home constant excitement. But John early became the man of the house. The wooded hills and open fields on all sides formed a splendid playground for the growing boys. The ground was the highest for miles around; in the valleys were age-old rocks and along the gorge of the Wissahickon unending wonders of Nature's handiwork. The boys roamed over the hills; they skated and sledded, swam and fished, and hunted for birds' nests and small game. But John had little time for knocking about with the village boys. Spring and summer he swam in the creek, but mainly their games and pranks seemed futile. Even in those early years he sensed that it was important not to waste time. There was no time to waste. His mother needed all the help he could give. As the years went on, the needs of the family increased more rapidly than the income. Elizabeth found it expedient to put her early training to practical use. She brought out her sewing machine where it was accessible day and night, laid in a stock of needles and thread, and let it be known around that she now was maintaining a millinery establishment, with notions and trimmings on the side.

[8]

THE JOHNSONS OF CHESTNUT HILL Chestnut Hill was a close community in those days. True, all did not move in the same circle. Nevertheless everyone knew what everyone else was doing. Many needed help in those troubled days. There was no organized relief, but there was a good neighbor policy and no one was permitted to starve or freeze. Henry J . Williams, comfortably settled attorney, who had married Julia, daughter of the almost legendary Dr. Benjamin Rush, asked his clergyman to let him know of any cases of destitution. This, the usual procedure of the more fortunate, took many forms. Accordingly the elegant ladies of Main Street as well as the farmers' wives learned that Elizabeth Graver Johnson was taking in sewing. They took for granted that her work would be superior; so, slowly but steadily, her clientele grew. John soon had a steady job as errand boy. There were, perhaps, more appropriate chores he might have found at the smithy, but his father's powerful form and easy motion seemed to exclude all but the visitor on the threshold, seemed to scoff at any need for help. Besides, John was more sympathetically bound to his mother. There is a pleasant story about the child Johnson. One day two ladies came into the little store and noticed the dark head bent over a picture book. They were attracted to him, and Mrs. Thayer asked his mother her plans for his future. "He's such a strong boy, I guess he'll follow his father in the blacksmith trade," she answered. " B u t John thinks he would like to go to high school and be a lawyer." The lady nodded toward him. "Send him to me to read in my library. I like little boys." The invitation met with ready acceptance. There was no public library in Chestnut Hill then, and the one pay library was more often closed than open. An ambitious young student did not pass up the opportunity to browse among really good books. The few volumes in the homes of his friends and family—except for the textbooks of his aunts—were mostly romances and novels. There was little time or inclination for serious reading in the fabulous forties. Nor had the new writings of Emerson and Lowell seeped into the village. John's mother had found time in the midst of all her other duties to teach him to read and write. At an early age he was sent to the Harmony School, the first public school building in Chestnut Hill, at Highland Avenue and Shawnee Street—where the fire station later stood. The excitement over the erection of the school and the proper place of education in the community, was reflected in the name. The teachers were delighted with John's work. The Misses Graver were proud to point him out a9 their nephew; his mother beamed over

[9]

JOHN G. JOHNSON

the congratulations of her friends. Everyone was interested in the work of the new school and in the boys and girls. The years went on. The hoofheats on the threshold cobbles were now an old refrain. The stages to the city still clattered by each hour, but the railroad was now operating between Germantown and the City, and there was even talk of extending it up to the Hill. That would be a great sight —the Baldwin steam engine, which ran in dry weather, but gave way to horses when rain made the tracks slippery. And the iron horse was penetrating farther and farther into the wondrous West, and the electric telegraph was bringing news from the great cities. Europe was a seething caldron, boiling over into the New World. On special occasions the Johnsons were taken down to Philadelphia to see the busy shops, the quaint, tree-lined avenues, the stately colonial mansions, with their quiet gardens, sweet with magnolias and honeysuckle and roses. A friendly peace and Quaker repose lay over its cobblestone pavements and gas-lighted buildings. The pattern of each of the boys was becoming clearer. Alfred, slight and brooding, filled his head with figures and calculation; William had the practical touch, and cared nothing for book-learning, but conceived new plans for money-making. He was quite impatient of his older brother's careful studies and closer scruples. John's report cards buttressed the family assurance. David smiled with satisfaction over his brilliant son; mentioned him with studied casualness to the folk in the great carriages that stopped by his door. But he looked with trepidation to the day when John would share the forge. Elizabeth bit her lip and pushed harder on her needle. She beamed at the praise, and behind her smile was something stronger than complacent pride. Finally, the easy days of the Harmony School were coming to an end. David brought home the local paper one night and pointed out a notice to his wife: There will be an examination of the schools in the upper ward of the Chestnut Hill School. There is no doubt, the attendance will be large, and the occasion an interesting one. All should attend to encourage by their presence these public examinations so as to stimulate by their presence pupils and instructors. "John will show up fine," David declared with easy assurance. The reports of the Misses Graver had confirmed his own observation of his son's maturity and sound common sense, his quiet confidence and ready dispatch. It was then, no doubt, that Elizabeth told her husband her plan. John

[10]

THE JOHNSONS OF CHESTNUT HILL was not only going to take this e x a m i n a t i o n ; he was later to take the examinations at the Central High S c h o o l . He was not going into the blacksmith shop with his father. He was going to the High S c h o o l . It was a bold thought f o r that day.

[11]

II

The Central High School I n T H A T day, with education less universal, there was a keener interest in the school system, and a widespread optimism that education would make men good. It was a naive belief, that evil arose solely from ignorance, but there was hope and comfort in it. And to the community interest in education, to the leading position of the Central High School in his own city, to his own work as an outstanding student of character and promise, Johnson owed his chance to enter the narrow gate of the law. J o h n and his classmates set off for the examinations, spurred by the final instructions of their teachers and the interest of the village. T h e High School was the city's only public institution of higher learning and served the best-equipped boys from all parts of the city. Merchants' sons competed with factory workers' sons: the well-dressed scion of the city lawyer toed the mark with the patched farm-boy. Here were a few hundred serious boys working their hardest to absorb the stiff curriculum planned by the best educational minds of the country. Built in 1 8 3 8 with money granted from the surplus in the United States Treasury, Central High School was the first institution of its kind outside of New England. Its birth was not achieved without a struggle. T h e public school system had led a precarious life through its brief twenty years, frowned upon by conservative citizens, supported by meager doles, frequently to the point of extinction. At best, the Lancasterian system, as it was called, was designed to provide the merest rudiments of learning to the underprivileged children of the state. Middle-class families refused to send their children, even though private school tuition was a heavy item. In 1831 Stephen Girard's bequest had given public education its first real impetus. More than establishing his famous college for orphaned white boys, he created a new feeling in the mind of the public. In the legislature Thaddeus Stevens, not yet obsessed solely by a loath[12]

THE CENTRAL HIGH SCHOOL

ing of slavery and of the South, spoke on behalf of public education. The maintenance of even the poor schools of his day seemed such a burden to the populace that they were to be abandoned. It smacked of communism—reading and writing for the masses, a most dangerous experiment, and at the expense of the "haves" too! Said Stevens: The blessings of education shall be conferred on every son of Pennsylvania, shall be carried home to the poorest child of the poorest inhabitant of the meanest hut of your mountains. The schools were saved. At the same time efforts were being made to improve the elementary schools; a movement was also started for a high school—a wildly radical idea. By 1834, however, the educators had pushed an act through the Legislature providing for a school tax, and in 1836 this act was amended to provide for the education of all children over four years of age. The same legislation provided for "one central high school for the full education of such pupils of the public schools of the First School District as may possess the requisite qualifications." Nothing was spared in equipment for the high school. For a long time it was an educational showpiece. In 1845, two English members of the Society of Friends spent several months in this country studying the school system. More than one-third of their report was devoted to the Central High School. They noted four hundred boys selected from all classes of society, studying under masters and professors of the same attainments as those of many of our colleges. Not even Harvard had such a fine observatory. Some of the instruments were borrowed occasionally by the United States Naval Observatory. This emphasis on astronomy, and other branches of science, was the inspiration of the school's first President, Alexander Dallas Bache, great-grandson of Benjamin Franklin, and Professor of Natural Philosophy and Chemistry at the University of Pennsylvania. History and English were not slighted. There were lectures on Anatomy and Physiology also. Dr. Bache resigned in 1842 to be succeeded by John Seely Hart, Professor of Languages at the College of New Jersey, which later became Princeton University. He remained until 1858, and during his reign the school became known as "The People's College," with the right to confer degrees. The Harmony group with which Johnson went forth to compete was the most personable offering the village school ever made. The result of the examination taken by boys from every bailiwick in and around the city was watched with keen interest. With Consolidation in the air, local rivalries were tense. The boys lived up to their teachers' hopes.

[13]

JOHN G. JOHNSON T h e H a r m o n y Class o f ' 5 3 was the largest ever admitted f r o m any consolidated school during the life of the examination system. Furthermore, their grades were up near the top. J o h n s o n entered sixth in a class of one hundred and fourteen with a rating of 7 9 . 3 . He had just passed his twelfth y e a r ; the average age was fourteen and a h a l f . T h e l o c a l boys' t r i u m p h was a cause for public celebration in Chestnut H i l l . T h e newspaper devoted liberal space on its first p a g e ; fraternal organizations invited teachers, principals, or any one educat i o n a l l y m i n d e d to talk about the superior brains of the town boys. T h e first report cards were not only of interest to mothers and fathers. T h e whole c o m m u n i t y wanted to know how J o h n Johnson was holding on, how Nelson H a a s was doing, and the progress of David Hinkle, H e n r y Lentz R e x , T o m R e x , H e n r y A. S t o l l m a n , and the Sellers boy. T h r o u g h o u t the entire f o u r years, the village followed the advance of its b r i g h t sons. Consolidation with Philadelphia, which came the year following the e x a m i n a t i o n , did not remove community barriers. T h e r e still was just as much rivalry between Chestnut Hill and Germantown; between Southwark and Northern Liberties. T h e initial showing o f the boys from the H a r m o n y S c h o o l was fortunate. Coming f r o m a school fourteen miles from the city, the youngsters might have been l o o k e d down upon. Many of the city boys, and even those f r o m Germantown and rural districts, had gone to good private schools f o r their p r i m a r y and g r a m m a r school training. T h e y might have given the outsiders a feeling of hopeless inferiority. But these p a r t i c u l a r outsiders h a d c o m e out on t o p ; they had passed a p r i m a r y hurdle at the outset. Y o u n g J o h n s o n set the pace for the little group. M a n y of the b o y s held the high grades they started with all through the course. S o m e did better. J o h n s o n did better each year. He was out in front in his second year, and never was headed after that. T h e l o n g j a u n t f r o m Graver's L a n e to the center of the city was no hardship to the y o u n g student. Often he walked to Germantown, and sometimes all the way to school. At the time he started, the Central High School still occupied its o r i g i n a l site on J u n i p e r Street, below M a r k e t — o p p o s i t e Centre Square, where later the towering City Hall was to be erected. However, in that same year the high school building was sold to the Pennsylvania Railroad, which in turn sold it to young W a n a m a k e r as a site for his big store. F o r a y e a r J o h n h u r r i e d through the handsome Ionic portico to his classes. T h e next S e p t e m b e r they were moved to the new school, a seventy-five-thousand-dollar building provided by the sale of the old structure, so that neither h o m e of Philadelphia's first high school cost the city a penny. In m a n y ways J o h n was a raw youngster when he started his school-

[14]

THE CENTRAL HIGH SCHOOL ing in the c i t y — t h e n a great overgrown town that h a d passed the quarter million mark, compactly lodged between the Delaware and the S c h u y l k i l l , sprawling m o r e widely north and south. T h e tall boy with his broad shoulders, big hands and feet, and j u s t about enough upholstering to cover the frame, mirrored the thriving industry about him. As he trudged along the Pike early in the m o r n i n g , he looked like a migratory worker, the huge lunch package dwarfing the f o r m i d a b l e stack of books. He swung along, looking straight ahead, with a slight frown between his far-seeing eyes. T h i s was not a pose, n o r was it indifference to the scene about h i m ; it was simply economy. He had less time to spare now than ever; not enough time to c o m m i t to memory all the studies the stiff courses required. S o he did additional work en route to school and home. His father's health was failing, and the burden upon his mother's little business was greater than ever. J o h n ' s c a p a c i t y f o r work was as much an inheritance of his mother's strong will and nervous energy as his father's rugged build. T h e business of c a r i n g f o r her h o m e , h e r husband, and three growing boys was m o r e than enough to have occupied a woman of her d a y ; in addition, she m a n a g e d to run her little shop on the side. J o h n ' s and brother W i l l i a m ' s and Alfred's clothes were not " s t o r e b o u g h t . " T h e y were made in the evenings, after chores were done, by Elizabeth's skilful needle. And because Elizabeth's needle was skilful, J o h n did not stack up badly with the other boys at the high school. Most clothing was home-made in those days, by mother or by a seamstress who c a m e to the house. Only the really wealthy boys never sported a patch toward the end of a suit's life. When there were no suits to be fashioned or patched, Mrs. J o h n s o n cut up the no-longer useful garments of h e r husband and three boys, and through the long winter evenings she crocheted throw-rugs with a big wooden needle. Sometimes when the garments had worn thin, she followed the practice of the m o r e prosperous households and cut them into strips, to be sewed together, wound into great b a l l s and c a r r i e d off to the m i l l where they would be woven into carpet lengths. T h e r e were few attractions that could l u r e J o h n f r o m his beaten path to and f r o m the school. H e never was much of a hand at snow fights, although the snowballs flew with swift precision across the icy bushes in Centre Square, missing skittish horses picking their way over the sleet of B r o a d and Chestnut Streets, o r whirling past the ear of a mule plodding up Market Street f r o m the wharves. Traffic had or during any o f their years even J o h n s o n

to make way f o r the boys when it was snowball season, impromptu game which made the b o y s forget the dignity and position. A fire was a general summons which swept a mile or so off his course. It was the day of volunteer

[15]

JOHN G. JOHNSON fire companies, when at the signal the hook-and-ladder and hose car sprang into action behind puffing, snorting, dashing horses, and intolerance and party rivalry broke into violent conflict. A fire meant a riot. T h e riots were so much e n j o y e d by the participants that if the summoning fires lagged, one would crop out mysteriously at a convenient point between the two territories. South Philadelphia—the Moyamensing Hose C o m p a n y — s t o o d for the R o m a n Catholic Church and the Democratic P a r t y . T h e F a i r m o u n t E n g i n e Company and the Shiffler Hose Company championed Protestantism and the Whigs. T h e fires and fights, the clattering horses, the clamoring, shuffling cattle and squealing pigs on their way to the stockyards, all went to make up distracting noises which the school directors considered too much for the boys. T h e move f r o m the Ionic P o r t i c o into the uptown building at B r o a d and Green was a retreat. After that, J o h n had little time to visit the heart of the city. He did not absorb information so easily that he was careless of studying or spending time on research. Nor was his mind of the precocious brand that develops rapidly to a certain point, then is apt to relax. He had a strong, capable m i n d to match his physique. He was quick to learn and tenacious to hold what he learned. His memory was truly phenomenal. D u r i n g his f o u r years at the high school, he is reported to have committed to memory the entire works of Shakespeare. On the stage or train, or walking up the P i k e to deliver packages f o r his mother, J o h n had his mind on his studies. T h e shaded old porch that clung to the side o f the little J o h n s o n home had worn, paintless floorboards where the boy paced as he went through his lessons in the late afternoon. Although he was quiet and retiring, he had a fierce ambition to succeed. Most of the boys in his class had so much more, and J o h n , visiting their homes though seldom, saw enough to understand. In addition to minds keen enough to pass the stiff entrance requirements and to keep up the pace, such lads as J . Shipley Newlin had f a m i l y , social position, and wealth back of t h e m — t h e entrée to Philadelphia's unassailable ramparts. I n the City of B r o t h e r l y Love all these were doubly important f o r any real achievement. J o h n knew his own abilities, and gave way neither to envy n o r to self-pity. He made up his mind to become a lawyer. At that time none of his f a m i l y or friends knew enough to discourage him f r o m such an undertaking; later his determination was too ingrained to be swerved by the prospect of failure. His mother saw no reason why he should not achieve his ambition. T h e Graver tradition of plain living and high thinking refused to b e rebuffed f r o m its insistence that knowledge has power to unlock all doors. A family had either to slip back or go forw a r d ; nothing stood still in a civilization as swift as young America's.

[16]

THE CENTRAL HIGH SCHOOL

Elizabeth's family was literate, even intellectual. They discussed serious questions of the day; they read the Saturday Evening Post instead of the trashy paper-backed novels common on the neighbors' kitchen tables. Her boy was smart, he was strong and hard-working; he would get what he wanted. John's father was less confident. It seemed like a lot of time to be spending over books when a bright boy could be earning his keep, or might be up and away. Young men in these days were not bothering about Latin and Shakespeare. They were learning a good trade, or even hiring themselves out by the day at good wages. Why try to be a lawyer? They never made any money; most of them had it to start out with and took to the law just for front. Why not use his strength and brains to better advantage? But he did not interfere with the boy, and behind all his seeming lack of understanding he was proud of this quiet youth who could turn a deaf ear on gold and adventure and go steadfastly about his business. John was off early and home late. In the winter the mornings were cold and clear, and polished with ice; in the evenings the snow stretched out before him like his own untried future. In the spring the long walk down the Pike—with the horse chestnuts thick green and white with blossoms—into the city, with its scents of mayblossom, lilac, and laburnum—was a great jaunt. Even the smell of the wharves from the Delaware was a good healthy one, mixed with the tang of the open fields. And if the summers were warm and humid, there was the magnificent red and gold Fall to look forward to—apples on a stick, pumpkin pie, bellsnickling on Hallowe'en, bonfires with the smell of dead leaves to excite the nostrils. The action of the scene was not so lovely. Pennsylvania was too close to the South, too much a part of the North to be sanguine about the slavery question. The long peaceful, almost rural city of Philadelphia was torn within itself over the question. While the Quakers opened stations on the underground railways, their worldly acquaintances were shocked over the property loss when a Southern friend lost a runaway slave. John had but entered the school when the Know-Nothing group made its strength felt. There was a grave recrudescence of anti-Catholic rioting. The teaching of all foreign languages, even Latin, was stricken from the roster, although Anglo-Saxon was taught at the High School before it was included in Harvard's curriculum. The young men watched the affairs of the nation eagerly. Some were abolitionists; some were as pro-South as Virginians. There were merchants' sons there, whose bread and butter depended on Philadelphia's trade with the Southern states. Around the dinner table they heard a

[17]

JOHN G. JOHNSON

steady tirade against the brigandish custom of joining in the theft of other persons' property. There were many in the class who went about their work oblivious of the turmoil about them. Johnson was neither indifferent nor partisan. He was merely a young man with a stout conscience and keen sense of justice. In his final year, when his nose was most deeply imbedded in his books and his thoughts were turning to a job and a foothold in the law, a decision of the highest court made news. The campaign that had just been concluded had been a masterpiece of political finesse. The question of runaway slaves and what was to be done about them was a burning issue of the day. Was the owner of a runaway slave to be permitted to go into free territory and return him to slavery, or was the slave, once over the border, forever f r e e ? A vastly increased number of abolitionists and a great mass of less rabid citizens in the North had come to a settled conclusion, while south of Mason and Dixon's Line feeling was equally insistent. All sides wanted an answer from the rival candidates for the Presidency. Buchanan, a Pennsylvanian, had a ready reply; he would abide by the decision of the Supreme Court in the case of Dred Scott, the outcome of which everyone was awaiting eagerly. He would enforce the law, whatever the Supreme Court might decide it to be. On this pledge he rode into office. Two days after his inauguration the Court spoke. Then the whisper rose and soon the charge was everywhere, that the ruling had been held back because of the election, but that the new President had known of it all the time. The meaning of all this was lost upon most of the boys. But Johnson, with his mind already fixed upon the law and aiming for the heights, must have felt the intrigue like a direct blow. No mass movements swept through the school. There were no divisions along lines that were dividing the great world outside the academic halls. The backgrounds of the boys were too diverse for them to be swayed easily by public issues; their talents too varied and too pointed. The zeal of their teachers drove the students without stint, and their zest for learning was sharpened by the urge to play a real part in the world outside. In the class were Robert Coxe, later a prominent lawyer, and William Trickett, for many years dean of the Dickinson Law School. The graduates of the school, closely watched by the entire city, were making their way in every field, and giving promise of great artists, writers, industrialists, doctors, bankers, diplomats, and clergymen. Johnson was in the Thirtieth Class, and could already look back upon the achievements of the men who had preceded him. It was the beginning of a long list of high-school graduates who gained prominence in the affairs of the city, state, and nation. In the First Class was George Harding, who had gone to New York, and was

[18]

THE CENTRAL HIGH SCHOOL

to achieve fame as a jurist and as the leading patent lawyer of the country. Edward Clark, who followed closely after him, was to become even better known as the founder of an important banking house that rose and fell, and rose again; more widely as the bank where Jay Cooke first learned the hundred varieties of coin and paper that circulated, as well as the important customers. In other early classes were Charles Cramp, the first of four brothers who attended school there and later went into shipbuilding; John Liggins, the first missionary to Japan; Ignatius Donnelly, who went to Congress, served Jay Cooke, and discovered that Bacon wrote Shakespeare; Frank R. Stockton, who wrote "The Lady and the Tiger"; Henry George, who styled himself journalist and economist, and ran for Mayor of New York. In these classes were an adjutant general and a brigadier general of the United States Army, the military governor of Santiago, and a general in the Cuban Army. There were a Nebraska senator, who presided over the Senate, a justice of the Supreme Court of New York, and a governor of New Jersey, who also sat on the highest court of that state. There were a dozen presidents and two score vice-presidents of railroads and banks in Pennsylvania, New York, and other states. The list of financiers included Peter Widener, who went from the school into butchering, and thence into politics and street railways and art; Charles T. Yerkes, who was a traction magnate in Philadelphia, Chicago, and London. Betwixt and between, his figures went awry. He served a term in prison, and became best known as "The Financier" and "The Genius" of Theodore Dreiser. The list was long and imposing. It included doctors like W. W. Keen and Jacob Solis-Cohen, manufacturers, educators, state officials, lawyers of high and low degree; Isaac Leopold Rice, who fathered Electric Boat and a forgotten gambit of the chessboard that bears his name. A newspaper proprietor, William Singerly, who founded the Record, and Frank K. Hippie, who headed a large trust company, two men whose lives ended in tragedy. But mere names of those who were to occupy key posts in every field of activity could not convey the solidarity and prestige of the High School tradition. Any timidity that the son of the village blacksmith might have felt in stepping out into the world was dissipated by his leadership in such an institution. It was enough to make a boy feel already on the threshold of success, to have his near perfection attested by a mark that scraped p a r ; to deliver the Honorary Address at the graduation exercises, where Elizabeth and David—who had been feeling poorly of late—rubbed shoulders with the gentry and substantial citizens from every part of the metropolitan city. The good wishes and plaudits of relatives and neighbors were a necessary stim-

[19]

JOHN G. JOHNSON

ulus, as John turned his serious young eyes to the problem of finding a place for himself. His world was a cold one. There were too many lawyers in Philadelphia. The neat shingles gained patina more easily than their owners won clients. In the few big offices there were enough sons, sons-in-law, nephews, and young cousins to fill the needs for scriveners and errand boys—coveted positions if surrounded by the magic aura of the law office. It was the Central High School, its position in the community, the pride it instilled in old grads and influential Philadelphians which came to John's rescue. All his strength and charm, wit and skill, might have gone untested since he lacked the social touch, had it not been that attorney Rush reached into this noted grab-bag of promising youth and drew forth its star pupil, to confer on him the dignity of office boy. For, at the moment, the demands of the irascible and gouty barrister Rush were too exacting to be met by one of the family. The order went to the principal of the High School for the "best boy" in the graduating class to fill the lowest rung in the ladder of the law in the office of Benjamin Rush, Esquire. The verdict of the faculty was unanimous. So it came about that, as the nation writhed in the new grip of commercial panic and civil commotion, and worried men and fearful women saw portents in the sky, another young hopeful stepped out into a slightly mad and highly feverish world. John needed more than his school diploma and his stout courage. At home, his mother was putting up a brave front under disheartening circumstances. Only the new horse cars on the Pike, drawing the City closer to the village, and making things a bit easier for her boy, seemed a hopeful sign.

[20]

Ill

The Rush Office

T

A HERE is a tenuous link between the career of young Johnson and the achievements of Benjamin Franklin. In the home of Franklin in London, Benjamin Rush, postgraduate medical student, met the notables of the English capital. From the reputedly close-fisted envoy, he received the substantial moneys as well as the encouragement for his further medical studies in Paris. In the law office of his grandson, another Benjamin Rush, young Johnson, duly certified product of the public school system, found his first job. It was not exactly the position the young bachelor of many arts envisioned as he plugged for his diploma through the long, cold nights. With the laurel still green on his brow and the praises of friends and teachers still ringing in his ears, the job of general office boy was something more than a let-down. His official title of "scrivener" meant simply that he copied hundreds of legal papers, served summonses and subpoenas, ran errands and jumped at a signal. The salary was equally uninspiring and could be spent easily in getting from home to office if he gave himself the luxury of taking the new horse cars on the Pike. Johnson, however, had the Graver business sense as well as the intellectual flair. He wrote a good, round, conveyancing hand, and soon developed such an aptitude for engrossing deeds and copying legal papers that he was doing most of this work in the office. In addition, he was encouraged to undertake similar jobs for clients and friends of his employer. To this specialty he added the collection of rents for conveyancers and real estate men as well as for lawyers, and the service of legal papers. A widening circle of business acquaintances was a happy result of these chores. The odd sums that he received added up to a tidy amount. Times were bad. A great panic had come out of the West, leveling banks and business houses in the city. Work was hard to get and paid but little. The years that followed John's entry into the world of affairs had been a rude awakening after the national dreams of mansions in the wilderness.

[21]

JOHN G. JOHNSON

His father's health failed rapidly. Defeat and frustration had done their work. In 1859 David Johnson died. Johnson was still in his teens, William and Alfred just old enough to understand. Elizabeth drew her little family closer to her as they turned their backs on the quiet burial ground off the busy avenue. There was no pause for self-pity. The hats in the neat parlor of her home were fashioned with greater care and seriousness; the trimmings and notions were laid out in orderly rows. John took on one more job. On his return from a long day in and out of the office, he delivered hats and dresses. But the bookshelves in the Rush library still invited exploration. At first these forays into the law had been brief exploits to clear up a doubtful point—a Latin phrase, a special pleading, or a chance remark that had cropped up in the course of an overheard conversation. Soon he was plunging into the well-worn books of law as other boys flung themselves into medicine or music, or oil, or sport, or adventure. Luckily Elizabeth understood and urged him on. She rejected the complacent view of bankers and business men that formative years were not to be wasted in study beyond the three R's. Benjamin Rush understood, too. He might be irritable at times, but a deep strain of kindness underlay quirks of temper and impulsiveness. He appreciated the caliber of his young assistant, and was grateful for the excellence of the work which gave him time for his hobbies outside the law. Soon the Rush office boy was lost in his routine by day, and Blackstone, Coke, and Littleton by night. Each morning he passed the emporium of young Wanamaker, who dispensed bargains at a firm price and was rapidly establishing himself as a smart merchant. In Cleveland, Rockefeller, just out of his teens, was forging ahead in the dry-goods business; in Pittsburgh, Carnegie and Frick; in a remote outpost of Minnesota, J i m Hill; and right here under his own eye, Cassatt and Cooke and a hundred other keen boys knew all the answers, and were not wasting their special talents on booklearning. The tempo of the Rush office was a stately one. The Rush business was by no means unimportant. Rush relatives were active in all phases of the city's life. Clients made up in quality what they lacked in numbers. As his patron spent much time away from his office, the work rested more heavily on Johnson. The efforts of his chief were afflicted by a slow atrophy that precedes retirement. John's nimbleness proved an effective antidote. Between tasks there were always the unexplored law books. He had a lighter side too, a youthful humor. The office was the frequent rendezvous for the Rush clan, and the rooms often vibrated with the shouts of the Rush children. Johnson took on the additional task of keeping them

[22]

THE RUSH OFFICE

quiet and amused. On the top of a mahogany bookcase he kept a bizarre collection of puppets. These he would bring down with all the ceremony of a court crier opening an important session. His huge hands were remarkably clever with the little figures, and his histrionics equally adroit. Sometimes the play was Hamlet, with the young impresario, who knew his Shakespeare, suiting his voice to every role. Often the drama was strictly legal. A trial of one of the local courts was reenacted. The puppets exhibited the eccentricities of the judges on the bench—of Hare or Sharswood, or they mimicked the lawyers, the dignity of Biddle, the aloofness of Rawle, or the mouthings of Hubbell. In a criminal case the stutterings of a terrified prisoner were thrown in for good measure. Astonished visitors tiptoed out of the office in bewilderment. A year after Johnson entered his office, Benjamin Rush gave up his practice and left for England. His brother, J. Murray Rush, was glad to take the young scrivener into his own office, which carried on the affairs of the family. About this time John began to make frequent visits to the office of Henry Williams, another Rush kinsman, for whom he did odd jobs. The older lawyer, who was also nearing retirement, had more than a casual interest in the bright son of a Chestnut Hill neighbor. He had watched the boy grow up and was attracted by his solid worth and ready resourcefulness. John lingered in the office of Williams. Here he met William F. Judson, who had been admitted to the bar only a year before, after making his mark at the University. Already his force and ability were recognized. On his too-slender shoulders rested much of Williams' business. The latter was counsel for the Pennsylvania Company, which had started with insurance and annuities, but had turned to a less crowded field of special corporation work. It was the first organization of its kind in the country, and also controlled many large estates. Its counsel was special adviser for each estate under its care, and since its business was increasing rapidly, there was a steady overflow into Judson's hands. As the press became heavier, he found Johnson's aid indispensable. Although the latter was still in his teens, he was entrusted with really important tasks. Serving papers and copying letters and briefs brought Johnson into contact with lawyers and conveyancers; he met the judges. As in all offices the complete docket of every case was kept up to date to conform with the official pages in the Prothonotary's office. The actual work could inspire only an unusual young man. The common law itself, and the system of pleading then in vogue, had grown up over five feudal centuries. Both had to bend to conform to the ways of a new day and a new continent. The law itself yielded gracefully to the new facts; the more rigid code of pleading resisted stoutly.

[23]

JOHN G. JOHNSON

The textbooks of Chitty and Stephen offered some guidance. Common-law pleading was a rigorous introduction to legal practice. The preliminary battles that led up to actual trial held terrors for the most capable veterans of the bar. Getting down to the real issue combined searching analysis with the rigors of the third degree. The pleas, rejoinders, rebutters, and sur-rebutters were hazards which only the most wary might avoid. The terminology was medieval and the insistence upon form terrifying. The Rush office, according to custom, had its favorite collection of written forms, which practice or the textbooks indicated would get past the hurdles of special pleading. Johnson had to write out all papers, writs, affidavits, rules, and briefs, in longhand, not once but three or four times. He dug into old folios, mastered the multitude of rules, charted the traps and pitfalls, and added these to his store of subconscious knowledge. Within a year after Johnson entered his office, J . Murray Rush died. It was natural that his assistant should join Judson. Williams had retired, and the young lawyer needed help more than ever. The work of the office was heavy, and the scope of Johnson's duties expanded rapidly. He had little time to brood over the sorry state of the nation's affairs. The forays of John Brown and his sons into Virginia had indeed created a wave of excitement in the city. In his new post Johnson was absorbing even more of the intricacies of the profession. The door between his desk in the outer room and his chief's private office was always open—affording excellent opportunity for him to study office conduct. He heard not only interviews between clients and counsel, but between associate counsel, plotting the course of litigation, or opposing counsel, sounding each other out on points of the case. Alluring as the prospect was, the possibility of becoming a lawyer was not one which the average boy might seriously consider. The costs of preparation and the obstacles in the path of fledgling lawyers were great; the requirements for admission to the bar vague. The law schools of the day were casual. Their courses were merely offered to supplement the important office preparation. The "Law School of the University of Cambridge, Mass.," advertised in the newly founded Legal Intelligencer: The instructors in the school are Hon. Joel Parker, LL.D., Royal Professor Hon. Theophilus Parsons, LL.D., Dane Professor Hon. Emory Washburn, LL.D., University Professor The course of instruction embraces the various branches of the com-

[24]

THE RUSH OFFICE mon law and of Equity, Admiralty, Commercial, International and Constitutional Law and the Jurisprudence of the United States. There were added inducements: T h e law library consists of about 1 4 , 0 0 0 volumes, and as new works appear they are added and every effort is made to render it complete. Students may enter the School in any stage of their professional studies or mercantile pursuits, and at the commencement of either term, or in the middle or other part of a term. They are at liberty to select what studies they will pursue according to their view of their own wants and attainments. Two terms of 2 0 weeks each year with a vacation of 6 weeks at the end of each term. During the winter vacation the Library is opened, warmed and lighted for the use of members of the School. The disinclination to throng into the law might be traced to the narrow gate which guarded the entrance to the profession. A young man must first register in a recognized office. That was by no means easy. There were only a handful that measured up, and registration fees were uniformly high. He might recall that when George Washington placed his favorite nephew, Bushrod Washington, as student in the office of James Wilson, he enclosed a note for one hundred guineas in the letter of introduction for the future Supreme Court Justice. T o be sure Wilson, later a Supreme Court Justice himself, as well as member of the Constitutional Convention, and first Professor of Law at the University of Pennsylvania, represented the top of the profession. But the scale of fees had substantially increased by the middle of the nineteenth century, even among those of slighter reputation. There was, in addition, a social barrier. T h e links by blood or marriage between most of the leading members of the bar and the bench were numerous and not always visible to the naked eye. Breaking into the charmed circle was a task only a vast self-assurance touching on recklessness would attempt. T h e only sure path then as ever was marrying the boss's daughter, and not a few of those who reached the top had followed it. Without special help the orphan son of an impecunious blacksmith might hardly consider a lawyer's career. Only experience could qualify the student for practice; usually that experience had to be gained in an office equipped to furnish it. In the Rush and Judson offices, Johnson had received and substantial favors. He had entered their doors not as but as an office boy. Something more was necessary to proper start. B y pure chance, this too was to be found office.

both guidance a law student, assure him a in the Judson

The atmosphere of the average office was not inviting to the young

[25]

JOHN G. JOHNSON

man who had to contribute to the family budget. John Samuel, describing the office of John Cadwalader, which was located in his dwelling house as was the custom of the time made clear the purely amateur status of the young men studying law. "There was not a taint of commercialism," he wrote. "In the conduct of the business, in his relations with his clients and students, and with his professional brethren, mere money was not protruded as the 'end all and be all' of duty." But money was one of the prerequisites for entry into these rooms where money was taboo. Said Samuel: At the close of each student's career in his office, it was Mr. Cadwalader's custom to take him in some case then pending and return to him as his fee at least (if no more than) the honorarium paid for his tuition. Such an office impressed various young men quite differently. The legal-minded students who read law in the Cadwalader office and attained distinction—George W. Biddle, Cadwalader M. Wickersham, and George Tucker Bispham, to name but a few—often emphasized that the relation of the preceptor in that office was not a mere formal prescribing of studies and examination. They repeated that the office was not a mere "legal junk shop," implying no doubt that many other offices were little more. They reminisced that an indescribable, an imponderable thing called "tone was not by precept but by continual example pressed on all students." On the other hand, the overtones of such an office were distinctly distasteful to other bright young men, like Charles Godfrey Leland, who spent a tortured year among its books, and then fled into literature. Nor would such an office have suited either the temperament or needs of Johnson, had he been able to secure admittance. The Judson office made no claims as a training station for legal apprentices. It offered no special routine. There was no rigid relationship of preceptor and student. There was not even the kindly but exceptional custom of Judge Cadwalader of giving the newly admitted lawyer a start by associating him in an important case. But the two rooms on the first floor at 708 Walnut Street, piled high with the Rush dossiers and many of the Williams files, as well as with Judson's own business, offered far greater opportunities. The way was clearly marked out for Johnson. His job was to equip himself to handle the work, and to obtain formal admission to the bar. Most of his training would have to come from his daily chores in the office, and from his own studies after hours. The methods of law study then in vogue contrasted sharply with the modern case system and the emphasis upon outside research and moot court training. Little progress had been made in codifying the law, but

[26]

THE RUSH OFFICE broad principles were of greater importance than isolated rulings. The books of recognized text writers laid the foundation of a legal education, and a few leading decisions of the English courts formed a great matrix from which American case law was derived. Johnson knew that, with Judson's sponsorship, admission to the bar would not be difficult. No terrors of the modern written examination hung over him. Nor would the usual problems of the young interne confront him later. Usually success at the bar came only after the first gray hairs. Law students without substantial private fortunes were an impecunious lot, and young lawyers of every degree earned little or nothing for the first decade of practice. This tradition of the struggling young lawyer was inflexible. Horace Binney, Harvard honor student, who had been admitted to the bar in 1800, wrote in his memoirs that if he had been compelled to season his porridge with the salt earned by his first years he would have found it quite tasteless. Binney came of a substantial, if not well-to-do family, but it took a series of fortunate events plus a seat in the state legislature to put him on the way to a practice. The experience of David Paul Brown had been even more discouraging. Starting out with every advantage, the first year had netted him precisely nothing. What was worse, not a single visitor had come into his office—even the beggars kept away from young lawyers. His first visitor was a brother lawyer, who came to relate a similar record, which had been prolonged over several years. Thereupon the two men discussed the advisability of giving up the law and moving west into one of the territories for a fresh start. The system dictated that any worthwhile case which might stray into the hands of the novice must be turned over to his preceptor. This had been merely a polite custom when the salutary tradition of employing a senior and junior counsel for each case had been in force. But for over a decade the practice of having two counsel on each side had been discontinued. As a result the situation of the young barrister became desperate. Lamented Brown: " T h e r e is no important case in which a young man has any chance of distinguishing himself; and in an unimportant cause no one can distinguish himself." Pure chance threw Brown a most unpromising case, and a further series of accidents, aided by a genius for trial work, brought victory and a certain recognition. Johnson's career was therefore exceptional from the outset. In the Judson office he was concerned only with a current schedule of work and with preparation for the real tasks of the active lawyer. Many problems of the profession, outside of mere matters of evidence and pleading, lay ahead. In the library he found many books devoted not

[27]

JOHN G. JOHNSON

only to legal decisions and principles but to the ethical problems that arise in day-to-day consultations and in courtroom trials. Among these The Forum, by David Paul Brown, long a leader of the bar, challenged his attention. The book had appeared in 1856, and almost the entire bar had subscribed to it. On the list were Johnson's friends, Benjamin and J . Murray Rush and Henry J . Williams. The merit of the book, and the impression it made could be gathered neither from a description of the author, nor from the initial chapters. According to Robert D. Coxe: Brown was a theatrical poseur with his dandified manners, his conspicuously displayed gold snuff box, the elaborate costume with which he clothed his bejewelled person, and his stilted and deliberate utterance. But the lawyer could write humorously of his own dramas, which were frequently produced in the city: At any rate it is not so remarkable that, with vast professional engagements, I should have written two bad plays, as that I should have been able to write any at all. I am an advocate, not a dramatist. Though Johnson also disliked the outward manner of the author, he was no doubt impressed by the discussion of mooted questions of legal conduct. Brown took sharp issue with the viewpoint maintained by Lord Brougham in his defense of Queen Caroline before the House of Lords. The English barrister acted on the premise that a lawyer was justified in deceiving the court if the interest of the client warranted it. Brown's position was the acme of good sense and sound judgment. He sought no special immunity for the lawyer from the general rules of conduct and good morals. His views on suits for fees, on contingent fees, and on the obligation of the lawyer to defend a case which he deems hopeless were duly noted. As to the first, he advised that it did not degrade the bar to maintain its legal rights. Of the second, he wrote: There never was an eminent judge on the bench who previously had been eminent at the bar in this country who has not received contingent fees. In fact, fees are always more or less contingent; first, it is a contingency sometimes when you get them at all—then the amount must somewhat depend upon the extent of labor, and lastly upon its success. A lawyer rarely charges, and never receives, as much for failure as for success. The old practice of paying beforehand does not exist, and when it did exist, it was not as advantageous to the client . . . and it was much more humiliating to the counsel. He quoted William Rawle on the last point. This leader of the bar

[28]

THE RUSH OFFICE h a d a d m o n i s h e d a y o u n g lawyer f o r r e f u s i n g to act f o r a client w h o m he j u d g e d guilty, despite the m a n ' s p r o t e s t s of innocence: " Y o u are a p r e s u m p t u o u s y o u n g man to decide at t h e outset what a court a n d j u r y can only decide a f t e r h e a r i n g all the t e s t i m o n y . " T h e two v o l u m e s of Brown c h a r t e d a w o r t h y course. H e stressed the g u a r d e d n a t u r e of the calling. H e c a u t i o n e d against s u i n g other members of the b a r , a n d devoted quite a bit of space to his own zeal and care in p r e p a r i n g cases. I m p o r t a n t was his advice to m i n g l e as m u c h kindness as possible with the p e r f o r m a n c e of d u t y : " A n d you never will or never ought to m a k e an enemy or lose a f r i e n d . " On the p r o b l e m of the lawyer faced with a case that he believes d o o m e d to fail, Brown's answer left no d o u b t : " H e is to lead the forlorn h o p e , t h r o w himself into the i m m i n e n t d e a d l y breach, a n d , to use a s t r o n g figure, c o n q u e r or d i e . " In " C a p i t a l H i n t s f o r Capital Cases," he h a d w r i t t e n : " T h e j u d g e and j u r y , it is true, m a y take the life of the p r i s o n e r , but you are not to give it a w a y . " T h e r e was, of course, the u s u a l a d v i c e — a d m o n i t i o n of respect f o r the courts, fidelity to the client, courtesy to m e m b e r s of the b a r . But Brown held a d m o n i t i o n s f o r the bench, too. A s an active lawyer, h e insisted that the courts owed an e q u a l duty of courtesy a n d respect f o r the b a r . C o m m e n t i n g that the press a n d the p u b l i c tended to g l o r i f y the bench at the expense of the b a r , he d a r e d to p o i n t out that j u d g e s are merely lawyers who have been p r e f e r r e d f o r p u r e l y f o r t u i t o u s reasons, often political or p e r s o n a l , a n d that they a r e n o wiser a f t e r their elevation than b e f o r e . T h e r e was wisdom, n o t pique, in his c o m m e n t s . H e p r a i s e d J u d g e H a r e a n d n o t e d : " W h e t h e r a j u d g e listens o r not, h e s h o u l d seem to listen; he is the central figure of the p a i n t i n g . " H e was n o heretic. On m a n y mooted q u e s t i o n s h e f o l l o w e d precedent, a n d f o r general office p r o c e d u r e r e c o m m e n d e d Ingersoll, Binney, Sergeant, and Chauncey as models f o r y o u n g lawyers, n o t i n g incidentally that M r . Lewis' office was an A u g e a n stable, a n d Mr. Rawle's n o t h i n g to boast of. Of ethics a n d etiquette he w r o t e : " E l o q u e n c e m a y enable us to o b t a i n a practice, b u t Ethics a n d Etiquette a l o n e c a n r e n d e r it sure and permanent." H e stressed good m a n n e r s as of e q u a l i m p o r t a n c e . " W i t h o u t these," he wrote, " t h e g o l d e n r o u n d of p r o f e s s i o n a l f a m e can never be a t t a i n e d ; indeed n o t h i n g c a n b e a c c o m p l i s h e d . " In those days, B r o w n ' s " T w e n t y Golden R u l e s f o r the E x a m i n a t i o n of Witnesses" h u n g on the walls of all the law offices w h e r e J o h n s o n t r u d g e d with his p a p e r s a n d orders. Every lawyer, y o u n g a n d old, r e a d and digested these precepts. One y o u n g m a n u n d o u b t e d l y took to h e a r t

[29]

JOHN G. JOHNSON a n d g u i d e d himself b y another B r o w n a p h o r i s m : " I f I should b e c o m e r i c h , " he wrote, " I should b e c o m e indolent a n d l o s e in f a m e what I g a i n e d in m o n e y . " B u t one r e m a r k f a i l e d to register with or deter this legal a p p r e n t i c e t o whom work was a r e w a r d a n d an a n o d y n e f o r all ills. " A m e r e l a w y e r , " B r o w n h a d written, " i s a j a c k a s s , c o n d e m n e d to unremitting toil." T h e teachings of G e o r g e S h a r s w o o d a l s o l e f t their m a r k on the f o r m a t i v e m i n d . T h e J u d g e who won his w a y to l e a d e r s h i p by h i s early representation of the s t o c k h o l d e r s of the B a n k of the United States, h a d given his entire l i f e to the law. H e s a w in its p r o c e s s e s the perfection of r e a s o n i n g ; in its p r i n c i p l e s , a b u l w a r k of the liberties won in the R e v o l u t i o n and defined by the Bill of R i g h t s . T h e l a y notion that j u s t i c e is something a p a r t f r o m the l a w a n d the precedents, w a s incomprehensib l e to him. H e w r o t e : N o court or j u r y are invested with any a r b i t r a r y discretion to determine a c a u s e a c c o r d i n g to their m e r e notions of justice. Such discretion vested in any body of men would constitute the most a p p a l l i n g of despotisms. Law and justice according to law, that is the only secure p r i n c i p l e upon which the controversies of men can be decided. E m p h a s i z i n g the necessity for a dignified a n d r e s p e c t f u l attitude toward the court, he outlined p r o p e r conduct. Excitability or irritability m u s t be s u p p r e s s e d . When noting e x c e p t i o n s to the opinion of the court, the manner must be polite, never c o n t e m p t u o u s or insulting. T h e r e m u s t b e self-possession at all times a n d u n d e r any c i r c u m s t a n c e s . H e warned against attempts to exert secret a n d i m p r o p e r influence on the courts. He pointed out the a d v a n t a g e s of a f a i r , open, a n d honest attitude toward other m e m b e r s of the p r o f e s s i o n , and scored the lawyer who attempted to win his c a s e by i m p r o p e r m e t h o d s when f a i r methods failed. Of such m a l p r a c t i c e h e s a i d : Nothing is m o r e certain than that the practitioner will find in the l o n g run, the g o o d opinion of h i s p r o f e s s i o n a l brethren of m o r e imp o r t a n c e than that of what is c o m m o n l y called the public. T h e foundations of the reputation of every truly great lawyer will be discovered to have been laid there. S o o n e r or later, the real public . . . will ind o r s e the estimate of a man entertained b y his a s s o c i a t e s at the B a r . . . H e c a l l e d f o r " e n t i r e devotion to the client's interest, w a r m zeal in the maintenance and defence of his rights, a n d exertion of the lawyer's utmost learning and a b i l i t y . " E v e n when the client's c a u s e w a s deemed u n j u s t and indefensible by the lawyer, he c o u n s e l e d : T h e advocate is not m o r a l l y r e s p o n s i b l e f o r the act of the p a r t y in m a i n t a i n i n g an unjust cause, n o r f o r the error of the court, if they shall f a l l into error, in deciding it in h i s f a v o r . . . the l a w y e r who r e f u s e d

[30]

THE RUSH OFFICE

his professional assistance because in his judgment the case is unjust and indefensible usurps the functions of both judge and jury. He emphasized, however, that the lawyer should not take all causes indiscriminately, but rather that he should use his rightful discretion, wisely and justly. He should always advise the client on the merits of his cause, but, once in the fight, he should know but one person—his client. He quoted Brougham, but like Brown disapproved of his Lordship's extreme statement that "he should strive to save that client by all means and expedients, and at all hazards to other persons, and among them to himself." He drew a nice line between the duty of counsel toward a defendant and his duty toward a plaintiff: Counsel have an undoubted right, and are in duty bound, to refuse to be concerned for a plaintiff in the legal pursuit of a demand which offends his sense of what is just and right. Judge Sharswood brought his students together once a week in his home to discuss moot questions of office and court practice. Johnson went there often with young Tom Hart, George Biddle, E. Greenough Piatt, and Sam Hollingsworth. Whenever it was possible, he stole away from the office to attend actual trials or the arguments of motions and rules. The courts had not yet become the twenty-ring circus that baffles the onlooker. Much of the litigation in the old Common Pleas Courts could still be followed. On motion days in the old District Court, the entire bar would be on hand for the student to study and admire. The young men crowded into the courtroom, watching every move with an expert eye, for here was a review of the city's best, here was the whole power of the law. On their way back to the various offices, the boys would debate the tactics and speeches with more than an amateur view. In the Rush and Judson offices, in the courtroom and at Judge Sharswood's round table, Johnson's deep respect f o r the legal status was confirmed. He saw the law as a vast, smoothly functioning machine that coordinated the experience of the past and the best thought of the present. Here was an instrument of precision to gauge the contingencies of life. From Sharswood he learned that in a complex society, abstract justice—the notion of any individual of what is right and proper—was an illusion. He realized clearly the tyranny of mere personal rulings, and understood the insistence of the Founding Fathers upon a government of laws and not of men. The path that in spite of good fortune and favoring friends wa9 beset with obstacles for Johnson, was also illuminated by much wisdom and worn by the footsteps of men who merited respect. In New York, Chancellor Kent had molded the common law toward a more natural and less technical form with his lucid writings. In New England, Story

[31]

JOHN G. JOHNSON

had capped a brilliant judicial career with appointment to the United States Supreme Court. At home, Horace Binney, although no longer active, was widely considered the first citizen of the city. His name was the essence of probity and honor, and the fame of his victory in the Girard Will Case still surrounded him. He had written simply: I never prosecuted a cause that I thought a dishonest one, and I have washed my hands of more than one that I discovered to be such after I had undertaken it, as well as declined many which I perceived to be so when first presented to me.

[32]

IV

The Bar and the Crisis Johnson the late fifties were pleasantly full of action. He passed from one eager day to the next, doing the work he liked to do, helping his family, shouldering new responsibilities. Philadelphia had lost its place as the largest city of the Union, but it retained its title as the most pleasant. Normally, it was as Thackeray had found it, grave, calm, quiet. At times, however, the air was acrid with tension and dogged effort was needed to concentrate on daily affairs. The streets of the Quaker City roared with the shouts of Know-Nothings assembled in convention. Complacency and evasion were racked by the insistence of the slavery question. Propaganda was playing the curtain-raiser to inevitable conflict. The white war of nerves was on; the scarlet streams of blood would flow later. Stories of atrocities—the real vying with the invented—crowded the press, the magazines, and books. From the contested territories came tales of minority persecutions as Southern and Northern settlers struggled for a foothold. Plebiscites—"popular sovereignty" in those days—were hurriedly suggested, most often with an eye to party advantage. The mercantile and propertied classes and an influential segment of the bar the country over for a long time did not trouble itself over the moral issues. That was left to old-fashioned women with silly notions of truth and righteousness, like Harriet Stowe, or to simple-minded men like John Brown, and a fringe of lawyers that stood apart. Such zeal in the interest of the submerged was inexplicable to minds guided by opportunism or clouded by precedents that established the property of one man in the body of another. Rufus Choate voiced the preponderant views of a conservative profession—pro-appeasement, and "anti-hysterical." But a detached attitude toward the problem was not the only one Johnson encountered. Now coming to the office each morning on the first train out of Chestnut Hill, he heard the discussions of excited men and women about him; felt the nervous tension of strongly urged, diverse

[33]

JOHN G. JOHNSON

principles. The impasse between the states had ceased to be a mere subject of amiable conversation. The young man might be disillusioned by the indifference of many members of the bar, and by the conduct of those who held the burden of settling a problem that clamored for solution. In the daily newspapers were to be found only equivocation, promises of all things to all men. Political jugglers offered complete satisfaction to every interest. The land hunger of the day was a convenient tool in deft hands. Partisanship had triumphed over principles; expediency ruled out constructive action. Politics was a gigantic game, played with fine phrases and meaningless slogans. The temporary alliances of irreconcilable groups could meet no substantial issues, could solve no problems. There was no escape from insincerity, eager to squeeze the last advantage out of every convulsive agony of the Republic. No escape from the web of delusion, selfishness, and defeatism that had been woven in an effort to snare the ignorant and prejudiced at the polls. The differences which courage and a high sense of duty might have dissolved at the council table would have to find their final adjustment in blood and tears. By the spring of 1859, the moderates of both parties were swamped by the radicals. In the six weeks that elapsed between the burning of Harper's Ferry by John Brown and his execution, passions had risen to the boiling point. Brown's futile gesture, decried by Lincoln as purposeless, was denounced by all but rabid abolitionists. But in the North, a few influential leaders hailed him as a hero. "The new saint," Emerson called him, "who will make the gallows glorious like the Cross." On the floor of Congress fist-fights and even drawn pistols were not rare. Still the gravity of the crisis had not filtered through to the nation. Though the forthright voice of Lincoln had won the nomination against the vacillations of Seward and Chase, the conservative element in the North still wooed the South. The heart of industry lay with its investments south of the Mason-Dixon Line. Two hundred millions owed to merchants of the great cities were a potent influence. In Philadelphia there was a grave conflict of interests. The city looked fondly toward the South. Business with the slave states was extensive, and social ties were strong. Industry shipped the major part of its goods south and in return received most of its imports. The elections were uniformly made agreeable to the Southern people, and Congressional representatives affiliated themselves with the Southern members at Washington. To the University of Pennsylvania Medical School came hundreds of Southern students. Many of the leading families were tied to Southern names. A list of twenty-five millionaires compiled in Philadelphia in

[34]

THE BAR AND THE CRISIS

1858 showed much of their prosperity due to Southern trade. The Sunday Dispatch stated that in a single square of Walnut Street, "occupying palatial residences" were twenty-two Southern families. Many army men hailed from the South. A number of lawyers openly advocated the Southern viewpoint. Among these were Peter McCall, Jared Ingersoll, and William B. Reed— not yet smeared with the stigma of "Copperhead." Others belittled the "glittering and sounding generalities of natural rights, which made up the Declaration of Independence." And with rabid antislavery crusaders urging only measures "short of war," their insistence that the South be mollified was a powerful influence. But in and about the city the Quaker and Mennonite traditions were strong; the forces that had early advocated abolition were reflected in the bold conduct of respected leaders of the bar. In an all-night session George H. Earle had fought against Benjamin Harris Brewster for the liberty of a fugitive slave. Others, at risk of life and limb, had championed the rights of the colored race. The bar had maintained its independence as well as its learning. In the 1850's its ranks had swelled to nearly five hundred; it was well able to take care of available business, but had not yet been overtaken by later-day overcrowding. Justice still sprawled in and about Sixth and Chestnut streets amid dignified squalor. The courtrooms were drab, unornamented, even unfurnished. The ceilings were in need of repair—on at least two occasions judges narrowly escaped death when the loose plaster fell. Such incidents were not unexpected and were met only by a jest: Fiat justitia, Tuat ceiling. "Let justice be done, though the ceiling fall." The rooms were heated by crude stoves, and the judges held court in their street clothes, including greatcoats in cold weather. The entire atmosphere was hardly inspiring to any who might judge the law by its trappings. Unless one had a feeling for the spirit of the profession, he might follow the example of Richard Watson Gilder or George Boker, who made a hasty exit from the law. On the other hand, practitioners who survived into the later era when justice moved into the new City Hall, looked back fondly to the gas-lit days. Not a few hankered after the convenient and agreeable custom of first-floor offices in the old residences of Walnut and the intersecting streets from Third to Eighth. The historic associations of the State House and the proximity of two beautiful squares—Washington and Independence—had something to offer which the most streamlined modernism could not supplant. The uncomfortableness of the old courtrooms was forgotten. They recalled only the mutual courtesy and the high standards of conduct that governed the relations of the attorney. They gave credit to the superior air of a neighborhood untainted by

[35]

JOHN G. JOHNSON commercialism. There was more opportunity, too, for the exercise of the bar's (and the bench's) traditional appreciation of a trim ankle, also attested by an unofficial dictum of the late Justice Holmes. Wrote Robert D. Coxe, severe critic of his own times: Until a very recent time the region adjacent to the State House was one of the most desirable and attractive of residential sections. The attorneys constantly passing South Fourth Street, Walnut Street, and Washington Square, again and again were distracted by visions of female grace and beauty in the members of the excellent families dwelling in the vicinity. It was the pre-typewriter age when even the introduction of the steel pen and blotter was considered a harsh substitute for the more romantic quill and sand. Letters were copied in long-hand, delivered by messenger, and kept in ponderous letter books—still in vogue in some offices seventy-five years later. Title searches, drawing of deeds, agreements of sale, wills, and other routine legal services were handled by conveyancers, who made up an honorable profession. Between the conveyancer and the lawyer yawned a gulf, wide but not unbridgeable. Many of the conveyancers enjoyed excellent incomes; their "business and good will" might be handed on or sold. Some of them graduated to legal ranks, and it was traditional for their sons to become lawyers. The advent of trust and title companies ultimately pushed out the old business of conveyancing. A few early recognized the changing conditions and proposed to "hedge," as they called it, by promoting the new companies. The rank and file who lacked such vision saw their business melt. More than one was glad to hire out to the new organizations. Title companies brought an end also to a profitable branch of legal business—examination of briefs of title. A small number of specialists had held a practical monopoly. Chief among these were Henry Wharton, Eli Kirk Price, Edward Olmstead, Joseph B. Townsend, William Henry Rawle, and George M. Wharton. Yet in eliminating the functions of banker from the practice of law, the new institutions were gradually ridding the bar of a continuous source of irritation and difficulty. Despite its drab setting, the bar of the fifties held an unchallenged glory in the tradition of those who had gone before and in the work of the men then active. In colonial days most of the judges had been laymen. The Revolutionary practitioners came fresh from the Inns of Court, the Middle and the Inner Temple; they looked to the mother country as the source of the common law while they led the struggle for independence. Long the leading city in only thirteen states, it was natural that Phil-

[36]

THE BAR AND THE CRISIS

adelphia should supply lawyers for national posts. Alexander J . Dallas had been Secretary of the Treasury under Madison, and George Mifflin Dallas had been Vice-President under Polk. In addition to holding other offices, he had given his name to the great Texas city. Richard Rush, as acting Secretary of State had negotiated the Rush-Bagot Treaty, and as Minister to Great Britain had done the spade work for the Monroe Doctrine. John Meredith Read had been nominated to the Supreme Court by President Tyler, but his strong antislavery opinions had prevented his confirmation. William Meredith and William Rawle had achieved national prominence in public office. It was still the age of forensics. The tempo was leisurely, entertainment limited, and education something to brag about. The lawyer was a celebrity. He came into court in formal dress and in every variation of the tailor's art. His performance was as important to his position as was his ability to woo justice. The audience and the jurors expected a thrill, even as a modern party convention expects to be lifted out of its ordinary plane for a surcharged hour. They desired a first-rate speech, garnished with classical allusions beyond their scope and delivered with an extravagance of emotion beyond their ability. Cynical humor was not yet the fashion. A true and proper verdict was the order, but only because the talent usually was fairly matched. In fact, a disparity of lawyers quite overbalanced the scales of justice. Hence in the Girard Will Case, when it was learned that the Girard heirs had retained Daniel Webster to assist Walter Jones of Washington, the City, already represented by John Sergeant, hastened to obtain Horace Binney. In the decade of the fifties most of the men whose roots lay in the Post-Revolutionary era had passed from the scene or were in retirement. George Dallas, William Meredith, William Lewis, Edward Tilghman, Charles Chauncey, Jared Ingersoll, John Sergeant, Horace Binney, Francis E. Brewster, John Cadwalader, Eli Kirk Price, Thomas Earle, were representative of the older members of the profession. Peter McCall, Richard C. McMurtrie, Theodore Cuyler, George Junkin, and Furman Sheppard were in their prime. John C. Bullitt, Moses Dropsie, George Arundel, J . Alexander Simpson, and David Sellers were gaining recognition. Pressure from the middle classes was increasing. One group, in addition to ability and learning, had a consciousness of family distinction and social background. Another group represented the newer elements—able and aggressive figures who had made their own mark. The line was not clearly defined, and stronger men ignored it completely, or overstepped it after a short, vigorous fight. Nevertheless there were many complaints against "the peculiar narrowmindedness exhibited by otherwise irreproachable leaders of the old Bar." Even older lawyers

[37]

JOHN G. JOHNSON spoke against the " p e c u l i a r deference exacted by a minority f r o m the rest of the b a r , as well as f r o m the courts, w h o successfully claimed to be the representative element o f the p r o f e s s i o n . " " T h i s c l i q u e , " wrote one lawyer, " i s the survival of the narrow spirit o f social p r e j u d i c e which f o r m e r l y separated P h i l a d e l p h i a into welldefined districts, mutually hostile and e n v i o u s . " B u t these young men, who resented the pretensions of those who c a m e to the b a r by inheritance, b e c a m e in turn the p i l l a r s of conservatism, handing down to their sons the key to the innermost circle. A few men f r o m beyond the city e n j o y e d a special status. J o h n C. Bullitt came f r o m Kentucky, A l e x a n d e r S i m p s o n f r o m Delaware, and E . Coppee Mitchell from G e o r g i a , and quickly made their way. In the critical days of sectional strife, the leanings of the b a r followed the community pattern. A m o n g the leaders David P a u l Brown gave his best efforts f o r the cause of abolition. S o m e years earlier he had delivered the principal speech at the dedication of Pennsylvania Hall, antislavery headquarters. H i s influence pervaded all classes. His " G o l d e n R u l e s " had gone through m a n y editions, and had been read by lawyers and students all over the United States. His own studies had included an uncompleted course in medicine under Dr. B e n j a m i n Rush, and a full digest of the law under W i l l i a m R a w l e . He was one o f the most popular criminal lawyers of his generation, a n d combined a vast literary knowledge with a p r a c t i c a l helpfulness to the younger members of the bar. George E a r l e and Edward H o p p e r , W i l l i a m S . P e i r c e and Charles Gibbons, were also active in the movement and gave their services to aid fugitive slaves. As a result, H o p p e r ' s large practice dwindled, though his office continued to be filled with students. B u t such m e n were not deterred by a heavy social pressure or even by the legal precedents. In the law books, where slaves were personal p r o p e r t y — g o o d s and chattels, transferred by bills of sale and bequeathed b y will—timehonored decisions had followed the dominant views, a n d had decided the m o r e technical questions. T h e city's leaders in industry and wealth as well as in the ranks of l a b o r were bewildered a n d — u n d e r the b a n n e r " c o n c e s s i o n , not secess i o n " — s o u g h t a middle course. T h e y looked to W a s h i n g t o n . B u t B u c h a n a n was even more muddled. U n a b l e to c o p e with the pervading desperation, he avoided responsibility, and J e r e m i a h S u l l i v a n B l a c k , who had been Attorney-General and was now S e c r e t a r y of State, b e c a m e virtual P r i m e Minister. T h e New Y o r k stock market moved and every ill-advised sedative. B a n k s Philadelphia suspended payment. T h e ward in military u n i f o r m — t h e W i d e

[38]

feverishly with every convulsion in W a s h i n g t o n , B a l t i m o r e , and election c a m p a i g n marched forAwakes and the M i n u t e Men of

THE BAR AND THE CRISIS the South always on hand. Other voices—Phillips, Garrison—were crying f o r c o m p r o m i s e . Everyone shrank f r o m the prospect of war. Greeley wrote: " W e hope never to live in a republic where one section is pinned to the residue by b a y o n e t s . " T h e President-elect was ill at ease. " T h e r e is no c r i s i s , " he declared, " b u t an artificial o n e . " And for a time it seemed that a formula of peace might be found. T h e substantial citizens of Philadelphia read the inaugural address, and turned for light to the stock market report. The bottom was out. The gentle but firm words had dashed all hope. T h e Seward brainstorm of averting civil conflict by a declaration of war against S p a i n and France received short shrift f r o m the President. The press of danger heightened party differences. R a b i d Democrats hated Lincoln worse than they hated the leaders of secession. There still was a tendency to consider the issue a s a matter of party politics a n d not as rebellion. Neither party a p p e a r e d to realize the gathering storm. P h i l a d e l p h i a manufacturers were greatly concerned with the decline in Southern trade during those last weeks of 1860. There was a frantic effort at last-minute solution; cries f o r arbitration filled the air. The city moved circumspectly. When W i l l i a m Curtis, New York abolitionist, p r o p o s e d to speak here, M a y o r Henry dissented. Instead, on December 13, a citizens' meeting was called in Independence S q u a r e . Nearly everybody who was important in the city attended the meeting. T h e bar was out in full force. M a y o r Henry, J o s e p h R. Ingersoll, Theodore Cuyler, and J u d g e George W. W o o d w a r d gave fluent pro-South speeches flavored with concessions. T h e resolutions recognized the validity of the Fugitive Slave Law and deprecated all denunciation or interference with slavery. Conciliatory messages were sent to the Southern states. There were m i l d protests f r o m a few who advocated a firmer stand against threats of secession, but the situation was no longer amenable to oratory and pious intentions. South C a r o l i n a , to which the meeting sent its most urgent a p p e a l , never acknowledged the olive branch. Of the lawyers who addressed that meeting, only Ingersoll became strongly associated in the public mind with Southern sympathies. Later J u d g e Woodward, a s Chief J u s t i c e of the S u p r e m e Court of Pennsylvania, voted against the constitutionality of conscription, and even m o r e strongly criticized the methods by which the adverse judgment of the court was overturned. M a n y of the leading citizens, who by blood, by business ties, or merely because of a wider outlook, felt close to the South, hoped to the end for an adjustment of national differences. Their voices proved ineffective, and their personal tragedy became only one phase of civil conflict. Theodore Cuyler s p o k e at another gathering that sought a way out.

[39]

JOHN G. JOHNSON

With an impressive face and figure and an actor's voice, he had already achieved distinction. Later his friends were to call him subtle and suave, and the less sympathetic to describe him as oily and unctuous: his usefulness to his clients to persuade a jury to render a verdict contrary to the facts, and the Supreme Court a judgment contrary to the law. A third meeting, called by one hundred and fifty prominent citizens, accomplished nothing. The list of sponsors included A. J . Drexel, William Cramp, Samuel J . Felton, J . B. Lippincott, and Mayor Henry, representing the best elements, whose feet were firmly on the ground. Daniel Dougherty, who was already winning fame as an orator, spoke, and Lewis C. Cassidy too. William B. Reed denounced the abolitionists as outlaws. At the same time, the Board of Trade's emergency council was equally unfruitful. The Democrats met again on January 19. John C. Bullitt spoke. Benjamin Harris Brewster, the orator of the day, declared that it was uncertain whether Pennsylvania would go with the North or with the South, or stand by herself. Judge Woodward, who later was also the Democratic candidate for Governor, expressed the hope that Pennsylvania would secede. A resolution claimed "the wrongs of the South as our own." Brewster was still young, but already an arresting figure. His elegant and eccentric dress found justification in a face badly scarred during childhood. His vanity was notorious. This did not stand in his political way, however; he was to fill an imposing list of offices and to be the orator at many important occasions. There followed a period of silence and waiting. Philadelphia newspapers avoided mention of military matters. At least one local factory made rifles during March and April for Southern soldiers. With the first shot on Fort Sumter, the picture changed. The Pennsylvania militia joined the men from Massachusetts to batter a way to the beleaguered President. "The heather is on fire," wrote George Ticknor. " I never knew what popular excitement can be." In the White House was the lean, loose-knit lawyer-President, surrounded by a Cabinet split on every objective but personal ambition. Up to this time, he had been looked upon by many as a misfit, a sort of Simple Simon. But he knew his precedents, and had made his mark as a lawyer. He had also studied a well-thumbed Bible, which had molded his thought and an elegant simplicity in his writing. Apparently it had also brought an unbending resolve that the tragic history of Israel, torn into a northern and southern kingdom, would not be repeated on this continent. The war went on with its thousand miseries and contradictions. In England and France, the cotton famine had brought on grave unem-

[40]

THE BAR AND A CRISIS

ployment. The foreign situation was dark. In Mexico the army of Napoleon the Little moved on the capital. Pacifism and defeatism were in the air. The tides of election were running against the Republicans. Seymour became Governor of New York, and, as greenbacks were issued and inflation set in, more than one plan for an armistice was afoot. Horace Greeley approached the French Ambassador with a request for imperial mediation. Disloyalty and greed were rampant. Trade Associations of Wool Growers and Manufacturers protested against the purchase of army clothing from Europe. A profit of forty percent was demanded in the name of patriotism, and shoddy uniforms gave rise to a shoddy aristocracy. There was bitter hostility between capital and labor. While the war raged and the country seemed headed for destruction, Johnson kept his eyes turned toward the future, his back bent to the work of today. At home, his mother was carrying on as best she could, eking out a living from the meager traffic of a village highway. Two young brothers were almost ready to enter the scene, so unworthily sketched to receive the hopes of youth. The bar continued its appointed tasks. In a narrow sense this comparatively small group wielded an influence out of all proportion to its numbers. But from a larger view they were merely carried along by currents they could not breast. The division and the vacillation of the profession in the face of disaster had mirrored the frustration of the people. The official mind had proved its ineptitude; the legal fraternity could only share the conflicting emotions of the bystanders. It could not overcome the march of events; it could but take up its duties when the call came.

[41]

V

The War Comes to the Law Academy I h E year 1862 held doubtful promise for the law-minded. Disaster was overshadowing the busy workshops and arsenals of Philadelphia. The city was an armed camp; every section was filled with cantonments of soldiers. The Navy Yard at the foot of Federal Street hummed with activity. The armories were overtaxed; factories and shipyards worked at top speed. Emergency plants and storehouses functioned at all hours. Business was booming, but the minds of the citizens followed the heaving lines of battle. The city was a principal concentration point for New England troops, and its depots and refreshment saloons were choked with the Blue regiments in their steady trek to the battle front. A counter-current of apathy and bitterness marred the patriotic effort of soldier and civilian. Southerners and their sympathizers formed a not unimportant part of the population. Many prominent families were rent asunder by the conflicting passions. Indifference stalked many streets, and there was covert rejoicing at Confederate victories. The loyal fathers lived but for the next news dispatch—the first shock of Manassas, the brief and delirious recovery after the capture of Fort Donelson, and the long, tedious days following the devastation of the Peninsular Campaign. McClellan had been checked before Richmond: in the West were only minor victories, bought at great price. Even in the Legal Intelligencer, with its bare recital of cases and legal comment, the war could not be ignored. Bold advertisements recommended Baxter's Volunteer Manual on "How To Be a Soldier, Without the Aid of a Drillmaster." There were full instructions to the recruit in the school of the soldier and the squad, with a hundred engravings showing "the different positions and facings in the Manual of Arms, and complete directions for loading, firing and stacking of arms." Another blurb recommended " T h e Camp-Fire Companion, a song book for the Union Volunteer, containing a variety of popular, national and patriotic songs and ballads, many of them never published."

[42]

WAR COMES TO THE ACADEMY

Another page of the legal gazette told of many meetings of the bar to assist the national effort. A few copies of the famous treason trial of Castner Hanway were offered for sale. He had been executed for resisting the Fugitive Slave Law twelve years before, but the law was now as dead as its victim. The Honor Roll of the Union Army was to be studded with the names of Philadelphia men, including nearly four hundred officers, who fell in action. Alumni and students of the University of Pennsylvania, the Central High School, and Girard College were numbered in every regiment. For Johnson there was also duty at home. The daily receipts of his mother's shop had been meager enough; under the stress of the more essential needs and services, they shrank to even smaller proportions. His brothers were still in their teens; their schooling a heavy burden on the resources of the family. John was now the provider; the income he received as active assistant to Judson was the sole dependable support. He worked from morning through the lengthening evenings, and often overtime on special work for other attorneys and conveyancers. He ran errands, collected rents, engrossed deeds, searched titles, made personal calls after small claims. And his zeal won encouragement from a widening circle of friends. In mid-March of that year of disaster for the Union, Judson encouraged his assistant to move more actively toward admission to the bar, and as a direct step, to avail himself of the training afforded by the Law Academy of the city. The conscientious attorney, under a deluge of work, had come to rely heavily upon the younger man. At the suggestion of Benjamin Gerhard, another lawyer who had taken a keen interest in Johnson's progress, he had already enrolled for the law courses offered by the University of Pennsylvania. Registration for these courses in no way compared with entrance into a modern law school. He had merely paid his fees and had received the privilege of attending several series of lectures. These were given by George Sharswood, Peter McCall, and E. Spencer Miller, who combined practical experience at the bar with a certain academic flair. Even the location of the school in the heart of the city indicated its ready help in supplementing the work of the office. Nevertheless these incomplete lectures, for which the sum of ten dollars was paid to each teacher for a term of four months, were the beginning of broader contacts. The University itself represented the triumph of culture over competition. The Law School grew out of the merger of two old rivals: the College of Philadelphia, at Fourth and Arch Streets; and the University on State House Square. For young Johnson, who had plunged into the bookshelves of the Rush Library and had spent his spare moments in serious study of every [43]

JOHN G. JOHNSON branch of the law, the lectures of his three professors were simply a romp. His own notebooks were crammed with more comprehensive data —cases and principles, private digests that covered many phases of legal practice with professional thoroughness. The work of the Academy was of greater moment. The Academy was the traditional assembly of serious students. The first lawyers of the city and state had rounded out their legal education in the Temples and Inns of Court of London; and the old local law colleges had continued to send their quotas abroad for fuller study. But as early as the 1770's the budding urge for Colonial independence prompted local students to find, on this side of the ocean, training equal to that offered in England. Bushrod Washington in 1783 was a member of an Academy in the city that foreshadowed the later body. The first moot court society was formed at that time by the students of James Wilson, who was always too busy with the state and national conventions or his College of Law to give the boys in his office the instruction duly stipulated and paid for. Legal education in those days was not of vast dimensions. The attack was simple. Men of culture achieved it easily, often with no thought of actual practice. Many served in quasi-judicial posts without such training. The accumulated precedents of the common law were not extensive; there was an easy familiarity with legal principles among men of affairs. There was, however, a profound ignorance of technical procedure, magnified by the growing divergence of Pennsylvania decisions, and the special rulings of a colony functioning under a written charter from the Crown. Taking part in the Moot Courts of the Academy was an essential complement to the legal theory handed out in the Law School. Neither the lectures nor the grind of office work gave an insight into courtroom tactics. In the years preceding the modern case system, such practical training was even more necessary. The Academy of Johnson's day traced its history directly to the initiative of its first provost, Peter Stephen Du Ponceau, who, as a lad of seventeen, had come to America with Baron von Steuben to serve under Washington in the Revolution. A scholar of languages and the law, he devoted his later years to the Academy, after service as a soldier, diplomat, and lawyer. He was succeeded by Thomas Sergeant. Since 1855 George Sharswood had directed the work of the students, with the help of the leading lawyers of the city who were glad to provide subjects for argument and preside over the debates. Benjamin Harris Brewster, Judge J . I. C. Hare, P . Pemberton Morris, Richard McMurtrie, William Rawle, and George Junkin were a few of the men who were active in helping the students during Johnson's apprentice years. James T . Mitchell, George Tucker Bispham, George Dallas, were enrolled with him. The Academy, which traced its chartered life to 1820, had an hon-

[44]

WAR COMES TO THE ACADEMY

orary list of graduates which contained virtually all the active members of the bar. War was a natural menace to this organization. In 1812 it had ceased to function altogether, and in those bleak days of '62, when Johnson approached its doors, the Academy ranks were again thinning with distressing speed. The earnest young men who made up the membership were engaged in the double task of concentrating on the technical points of the law in a lawless world and preparing for future practice while they awaited the moment which would call them to duty at the front. The minute books of these years reflect the determination to proceed with normal tasks, and to meet the call to service without fanfare and in due course. The departure of members with their battalions, death on the battlefield, a serious or slight injury, absence from session due to other war demands—all are recorded by appropriate resolution. The regular schedule of weekly meetings and moot arguments went on. The Minute Book which covers the years 1861-67 records an event of March 26, 1862: Mr. Rhoads proposed for membership Mr. John G. Johnson, a gentleman of good moral character, and a student of four years standing in the office of J . Murray Rush, Esquire, now in the office of William F. Judson, Esquire. At the next meeting, April 12, he was elected a member of the Academy. The minutes of the meetings through the next years contain many references to Johnson's participation in the moot court arguments—the most important part of the work of the Academy. This serious eSort comprised his sole association with the group. In this small company, in which nearly every member held some kind of office, he avoided even a minor position. One or two perfunctory motions are credited to him, and at one of the elections he did rise to the dignity of a teller. A certain reticence on the part of the erstwhile scrivener and office boy may have been the cause. If so, it was speedily overcome. More clearly the immediate problem of earning a livelihood for himself and his family, had for a long time made actual admission to the bar impossible. It had also made his Academy association mere training for a job to be done. Soon he impressed his associates, as Samuel W. Pennypacker later described him, as " a bright, vigorous young man." The Argument List of the Academy for the 1862-63 season recorded his participation in four of the moot cases. The first, in which he was associated with William E. Littleton for the defense against A. R. Cutler and John B. Thayer, involved a fine point of the law of bills and notes.

[45]

J O H N G. J O H N S O N

His next case, again in association with Littleton, was typical of the delicately posed points of law that marked these student arguments.* His final argument for that year involved a tricky ground-rent question. In the next season he was even more active, taking part in five such problems. One of these revolved around the sale of a milk route, in which the seller promised not to serve milk to any of his customers on the route for a year—a frequent type of case in those days. As one by one members of the Academy joined the armed forces, it became almost impossible to gather a quorum of these serious young men. The meeting of September 17, 1862, was duly recorded: There was no roll call or business meeting, the attendance being so small, many of the members having volunteered in the state militia to protect the state from invasion. Even the arguments were sometimes dispensed with. Resolutions offering sympathy to friends and family of those fallen in battle became more numerous. With September came news of the horribly drawn battle of Antietam—more fuel for a flame of disloyalty which grew brighter with each Union setback. The situation at last became intolerable to patriotic citizens. A group of the more active Philadelphians decided to strengthen the home front against the Copperheads in the neighborhood. Several loyal men were invited to meet at the residence of Benjamin Gerhard, to promote the formation of a Union Club. The original members were J u d g e J . I. Clark Hare, Benjamin Gerhard, George Boker, Morton McMichael, Horace Binney, Jr., and Charles Gibbons. It was not until December 27—in the midst of the gloom following the slaughter at Fredericksburg—that the Union League was named. The first president was William Morris Meredith, then attorneygeneral of the state. In the Academy, too, the young men were taking modest patriotic steps. At the regular meeting, October 2, it was moved that those members of the Law Academy who have responded to Lincoln's call for 300,000 men, and have entered the service of their country, shall be excused as well from the payment of fines as from all contributions which have accrued or which may accrue during the time of such active service. * " A c t i o n on a policy of insurance on a barn. The Company pleaded in defense that, at the time the insurance was effective, the plaintiff was on very bad terms with one Knight, and that about some days prior to that time, K n i g h t had been heard to abuse the plaintiff and to threaten to burn his barn down, all of which facts the plaintiff concealed. A fire occurred, and Knight was indicted for arson, but acquitted. On the trial, defendant offered an insurance officer, the President of another Company, to show that the above facts were material to the risk, and contended that their concealment rendered the policy void."

[46]

WAR COMES TO THE ACADEMY

But legal conservatism—even among these not-yet-lawyers—challenged the act. "There being some doubt in the mind of the President as to the constitutionality of remitting fines and contributions in advance, under Article III of the By-Laws," it was moved and seconded to suspend that article in order to allow the resolution to pass. This was done. War emotion had also penetrated the calm of the Academy, and the minutes of November 13, 1861. On October 30, F. Carroll Brewster had delivered an address on "Rights and Duties of Lawyers." While all the students agreed that thanks be given the speaker for his able address, a debate arose concerning the customary printing of the speech. Young Ashurst, with Shippen, Biddle, and others, opposed its publication. His statement reflected the wider conflict outside the Academy. It took exception to the speaker's special insistence that it was the duty of the lawyer to defend the civil liberty of the citizen, and to watch with a jealous eye against violations of the Constitution committed under the pretense of protecting it. The young men disliked certain overtones in the contention that there was no authority or sufficient reason for departing from the ordinary course of judicial proceeding in prosecuting those in the Northern states suspected of disloyalty. With admirable tact young Ashurst merely stated: He was forced to the conclusion that such expressions, although used, he trusted, with no such intention, were couched in language calculated to encourage a spirit of carping criticism of the measures which our Government has adopted for the preservation of the National Life, and to inculcate advice, which, if taken, would materially tend to weaken and impede that Government, now grappling in a struggle for life or death with unprovoked rebellion. The matter went to a vote, complicated by the fact that young Biddie's " N o " did not count because he had left the meeting. Several other members asserted that the address was unpatriotic and in bad taste, but its publication was finally voted by nine to seven ballot. Only eight " a y e s " were recorded, however. So prolonged was the debate that an additional $2.50 was voted to the janitor for extra services at one o'clock when the meeting finally adjourned. In the worst hours of the War, the solemn procedure of the Courts continued. The North Atlantic Blockading Squadron was feeding a steady stream of business into the federal courts. Cargo details of the ships seized and condemnation notices as good and lawful prizes, together with sales of the United States Marshal, appeared in every issue of the Legal Intelligencer. All war activities found their reflection in these pages.

[47]

JOHN G. JOHNSON

Johnson found a small item in an early issue of 1863 of more immediate interest. Under the heading of the Board of Examiners, of which Edward Coppee Mitchell was Secretary, it read: John G. Johnson, late a student of Law in the Office of J . Murray Rush, Esq., dec'd, now in the Office of Win. F. Judson, Esq., will apply for admission to practice as an Attorney in the District Court and Court of Common Pleas for the City and County of Philadelphia. On February 7, 1863, he was formally admitted to the bar and took his oath "to behave himself in the office of attorney according to the best of his learning and ability, and with all good fidelity, as well to the court as to the client; that he will use no falsehood, nor delay any man's cause for lucre or malice." At the date of his admission he had not completed his course at the University, and was not yet twenty-two years old. But his work in the Rush office had fitted him for active practice, and he was already doing most of the work of a lawyer. In fact, he had been listed as attorneyat-law in the Directory of 1862. Any joy of achievement was tempered by the echo of disaster that spring. The war came closer to Philadelphia as Lee's army moved northward into Pennsylvania. This, at last, was the moment of emergency. Every fighting man was needed at the front. To Southern hearts following Lee's advance it was a gallant drive, a last convulsive effort to break the tightening iron ring. To the people of the great eastern cities and the towns of Maryland and Pennsylvania, it was a dagger-thrust. Stolidly the gray battalions moved across the pleasant Virginia hills toward the Blue Ridge in a vast encircling maneuver against the Army of the Potomac. The plan was clear; the iron roads that linked the eastern seaboard to the mid-western factories and farms were to be cut, and the key industrial cities of Pennsylvania occupied. From all over the state news of the approaching army rattled over the telegraph keys in the Washington bureaus, and then fell suddenly silent. The Army of the Potomac seeking to save itself and the Capital against the vast gray pincers swung north at the end of June. From South and West, by telegraph and courier, the news came to Philadelphia. The Confederates had crossed the narrow end of Maryland, and were swarming into the unscarred valleys of the Keystone State. The main body had moved up Chambersburg Pike, and then out into the bright fields and neat orchards of the Allegheny foothills. In the flawless June days crowds were thronging Fairmount Park to enjoy the concerts of Birgfeld's popular band. The color and thrill of war had worn thin. Battered spirits turned away from the monotone of military funerals and the unending procession of wounded, to the

[48]

WAR COMES TO THE ACADEMY cheering h o p e that the struggle was nearing the end. The optimism was infectious. T h e Union L e a g u e and fire companies set about preparing f o r a great Fourth of J u l y P a r a d e to be followed by banquets and fireworks in the evening. Hooker's army of veterans could hold the gray lines within the old sectors. But through the screen of pretense came the steady retreat; depleted regiments of New England and New York were trekking homeward through the city, stopping at the great Union refreshment s a l o o n s . Still d a y by day over the Germantown R o a d galloped the couriers with dispatches of the G r a y a p p r o a c h . Over the wires came the ominous news. T h e advance across the Susquehanna was unchecked, the enemy was moving now into f a m i l i a r towns and cities of the middle border. A new s u m m o n s f o r volunteers came f r o m President Lincoln and Governor Curtin. On J u n e 16, M a y o r Henry ordered business men to close their stores, factories, and w o r k s h o p s — h u m m i n g with government contracts—and arm. Somewhere between Hagerstown and Philadelphia, seventy thousand veteran fighters were moving forward, striking at Washington, Baltimore, and Philadelphia. F r o m the city arsenal at B r o a d and R a c e streets came rifles, cannon, harness, firearms, uniforms, tents, commissary utensils. With feverish haste the new volunteers arrived, were fitted out, and sent by train west toward H a r r i s b u r g . E a c h half hour a company, new to the blue uniform, left the city, its ears r i n g i n g with the Mayor's warning against the enemy at home as well as the f o e in the field. Still more troops were needed. Policemen went from house to house with enrollment blanks. T h o s e who were signed hastened to Independence S q u a r e , where the M a y o r and the Commanding General awaited them. T h e fifth column of Copperheads was cowed into silence. But business h a d come to a standstill, and with Reynolds' f a l l depression laid siege to the city. Earthworks were set up, trenches were d u g at vulnerable points. T h e r e w a s talk that the State Government would flee the capital. Meanwhile, Private J o h n s o n was riding westward with Battery A, 1st Pennsylvania Artillery. T h e battery h a d been organized by members of the Philadelphia b a r to control the riots of 1844. After the Battle of Antietam in 1862, it had been revived. This revival, in J u n e of '63, was in command of Captain Henry D. L a n d i s . S a m u e l C. Perkins was first lieutenant, William Henry R a w l e quartermaster, C. Stuart Patterson and F r a n k H. Rosengarten sergeants. In this c o m p a n y were J a m e s T . Mitchell, who later became Chief Justice of the State, Robert L . Willson, William B. Hanna, and Clement B. Penrose, who were to be j u d g e s , George W. Biddle, Charles Chauncey, Albert A. Outerbridge, T h o m a s Hart, Jr., and Charles E. M o r g a n , all then or later lawyers of distinction. Richard Watson Gilder, who later

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became editor of Scribner's Magazine, and Charles Godfrey Leland, who wrote the Hans Breitmann Ballads, both lawyers, were in the group, and later described their experiences. Johnson was determined to be a good soldier. The night the recruits had been mustered in, he had been put on guard duty at the Armory. At eight o'clock he had been given a gun, and told to present arms when any officer passed. Then the sergeant of the guard forgot him. About four o'clock the next morning, a new sergeant found him standing rigidly, with his gun "at present." "When did any officer last p a s s ? " he was asked. "About nine o'clock," he answered. "Have you been standing at 'present' ever since?" he was asked. "Yes," he replied. "The sergeant did not tell me what to do after I had come to the 'present.' " The battery left Philadelphia June 26, and arrived in Harrisburg that night, where the men slept on the railroad station floor. The next night they stretched out on the lawn of the State Capitol, and the following morning crossed the Susquehanna to dig trenches and take up guard against the approaching enemy. It had rained all night and the men were soaked through. The ground was heavy and untractable to the unpractised picks of law student and legal veteran. But it was all adventure for a young man who had not forgotten the feel of earth under the plow on spring days on his grandfather's farm. His high spirits and obvious enjoyment of the work were cheering to the older men who struggled beside him, under the critical eye of twenty-year-old sergeants peering down from the dry rims. The first day of July saw the first fighting: a section of the battery went with a regiment of infantry toward Carlisle. About ten miles beyond Harrisburg, however, at Oyster Point, they met the advance guard of the invaders in a brief skirmish. The rest of the battery was then ordered to Carlisle. They scarcely had come to rest in the Market Place when a shell explosion in the Southern artillery just down the street gave the signal for action. The battery soon routed the Southerners, who took positions behind houses and kept firing. It was three o'clock the next morning when the Philadelphia soldiers got their first news of the Battle of Gettysburg. A Federal cavalry sergeant and two men clattered into the midst of the skirmish with the news. The Southern sniping ceased and the gray uniforms disappeared. Apparently the casualties of this encounter were slight. Another member of the battery gave a more detailed account of the Battle of Carlisle, as it came to be called: Shells struck the courthouse steeple, crashed glass, mutilated houses, killed one of the Battery horses, destroyed the wheel of one of the pieces and took off the fingers of the right hand of Sergeant Patterson. [50]

Soldier in the Union A r m y Standing, left to right: Robert N. WiUson, John G.

Johnson

WAR COMES TO THE ACADEMY

For half a century thereafter, the lank figure of the lawyer-banker, with its empty sleeve, was a familiar sight on the streets of central Philadelphia. In the meantime the invaders had set fire to Carlisle Barracks, the former headquarters of the United States Cavalry, and the lurid flames illuminated the steeple of the courthouse and higher points. There were other skirmishes, but though the men were ready for the thickest fighting, they were held in reserve, as too raw for such duty. But of work and hardship, hunger and marching, they had their fill. The provisioning had been hurried and scanty. They slept in overcrowded tents, or out in the open in the rain. Fortunately it was warm weather and the lack of shelter, or even proper food, was not such a strain. On the morning of July 2, the battery had camped in the grounds of the razed barracks. The next day they had marched with an infantry division to the top of South Mountain, into positions to guard the three roads that came through the forest from Gettysburg. In another skirmish they had captured a number of enemy stragglers. On the Fourth of July—while in many cities loyal citizens paraded and fire companies were setting off their fireworks, General Lee withdrew with his entire command to the other side of the Potomac. The battery, keeping to its own side of the river, followed the retreat as far as Hagerstown. From there they started home, stopping off at Chambersburg—through which the rebel army had marched so hopefully only a few days before—to hand over their guns, horses, and equipment to Lieutenant DuPont, later United States Senator from Delaware. Back in Philadelphia little news of the battle had reached the inhabitants. All through the sultry Fourth they had awaited a definite word to dispel the many rumors that passed from mouth to mouth. It was the Nation's birthday, but there was no rejoicing. No sounds filled the streets, but the rattling of the hurrying wagons and the rapid tramp of marching men. The frightened women gathered in the houses; men talked on the corners in anxious crowds. A wild-eyed group stood before the bulletin boards at Third and Chestnut, snatching at bits of news to get some idea of how the battle was going. The air grew sultry and still. Up in Chestnut Hill, Elizabeth Johnson, like many of her neighbors, stood at the gate of her home, long after darkness had fallen, gazing at the steady procession of horsemen on their way from the city. There, most of the inhabitants had retired, but not to sleep. Suddenly, there came a low moaning sound. It grew louder and more clear. The people ran into the streets to clasp each other by the hand. The clamor of many voices rose into the air as wild crowds jostled to and fro, with shouts and rejoicing, only half knowing why. Then, from the ancient steeple, rang out the long familiar bell. For a few hours the city was

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gripped with a fine frenzy. It was a hundred-word dispatch that came rattling over the keys. "Authentic news,—highly important from the front. The rebels in full retreat . . ." And a few hours later a flash from the Baltimore American and a special account by the New York Tribune. Not, however, until three days later did the full details of the battle become known—together with the long casualty lists. There was little room for further rejoicing.

[52]

VI

The Wars of the Grandfathers

T

A HE first edition of the Public Ledger which contained an authentic account of the battle that had saved Philadelphia also contained the notice of Johnson's graduation from the Law School of the University. The young man was absent on more pressing business, and several weeks elapsed before his return. He took no time off for a double celebration, returning immediately to the folders he had thrown aside. There was plenty of work waiting for him. His new status as attorneyat-law served but to increase his duties in the Judson office. It was a natural transition; there was no polished shingle to hang out, and no period of waiting. Many lawyers still were in service. The resources of the nation were being used as never before. For a few months Johnson participated in the debates of the Academy, making sure that no necessary preparation for his career should be slighted. Then he turned to actual practice. His name was duly placed on the Honorary List, and another chapter in his life was ended. Rarely, thereafter, did he appear at the meetings. He was uniformly absent when distinguished lawyers and judges delivered their annual addresses. He never spoke to the assembled students, but within a few years his help was to be given to his companions and preceptors alike as senior counsel in the conduct of their cases. The groundwork for his future services of national scope was not such as to arrest attention. The motions and rules, the minor causes of the fledgling lawyer were of little interest, particularly against the backdrop of a great conflict slowly drawing to a close. Even the major court battle of that day—the long contest in the state and federal courts over conscription—caused few ripples in the country at large. The blast of the guns drowned out the even voice of the law. At other times, the opinions of the state judges upon the constitutionality of the draft statute would have merited careful study. Justice Read, who had failed of appointment to the Supreme Court of the United States because of his strong abolitionist sentiments, wrote

[53]

JOHN G. JOHNSON eloquently in defense of the Act. Judge Woodward, who was considered more favorable to the South, asked with equal force, "Can a citizen be made a deserter before he has become a s o l d i e r ? " The case in the state court was actually decided by the elections which changed the line-up of judges, and on a reconsideration of the case the court upheld the law. It added little to the popularity of Peter McCall and Charles Ingersoll, who, together with George M. Wharton and George W . Biddle, had represented the objecting conscripts. The final verdict in the highest court of the land—against the Act—brought a heated demand for the reorganization of the court. In the somber days of the President's martyrdom, the private squabbles of local citizens seemed of singular unimportance. Against the partisan bitterness of the time, the lawyer's daily routine could not make headlines. Yet the more humdrum tasks of private citizens were laying the foundations for a national expansion that was more vital than politics and politicians. Even the seemingly drab adjustment of private lawsuits played its part. The wheels of industry were turning swiftly; wagon wheels were rolling westward too, beyond the brave new rails of the lusty railroads. In the near West, just beyond the mountains of Pennsylvania, oil was gushing out of the earth, pushing men's hopes and ambitions with it. Young men and their fathers abandoned their trades and professions, lured by the song of the drill. Rufus Shapley, just getting an excellent start at the bar, dropped his books, rolled up his cuffs, and rushed to the oil fields. All about, new industries were booming. Out in Ohio, Rockefeller, with audacity amounting to genius, was laying the foundations of a fortune; the coal industry was being built up through means equally dubious; railroads were being constructed, in the fashion of the day, to be milked and wrecked. Right in Philadelphia, in J a y Cooke's leather and oak-brown office on Third Street near Chestnut, the talk was all of rail grants and land handouts. The very air of the quiet city had lost its repose and vibrated with the spirit of speculation. It was no background for a stiff chair, a stack of musty books, and a midnight candle. Yet Johnson stuck to his j o b . It was not the j o b he had dreamed of, pacing up and down the little porch outside the room where his mother sewed and his brothers romped. It was not a stage where the long-robed judge leaned over his desk to catch every word, and the jury sat in rapt silence, while he shouted " I object," saving this man's head and that man's honor. In his office, John burrowed into the problems of decedents' estates and trusts and wills—the special branch of the law that governs the orderly disposal of a man's property after his death. This had always been a miasmic swamp, overhung with vines, in-

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THE WARS OF THE GRANDFATHERS

habited by jungle beasts. The great body of prudent counselors heeded the early warnings. Compass in hand, they steered far afield. All but few of the hardy spirits who persisted none the less, met with speedy disaster. For years Gray on perpetuities and Fern, on remainders were considered fair guides to the less overgrown trails. Their work was not unquestioned, since both Gray and Fern were reputed to have ended their lives in the insane asylum. The average lawyer knew little, and the judges even less, of the technical problems that arose in this field. Both gloried in their ignorance. Judge Pennypacker told this story: One day a young lawyer began to argue upon that most intricate and technical of subjects—the law of contingent remainders. He began in the middle, worked both ways with unwearied zeal, and kept it up for half an hour and perhaps longer. I sat there and blandly listened. After a while, Sulzberger arose from his seat and paced to and fro behind me with his hands hidden in the folds of his gown. Presently, unable to control himself longer, he came leaning over me and whispered: "You damned hypocrite!" It was into this untraveled region that Johnson had to make his way. Its business growing as fast as the fortunes about it, the Pennsylvania Company had made Judson special counsel for each estate entrusted to its care. He was little older than Johnson in years, hardly more mature in judgment and outlook. As the company grew, he was gradually becoming submerged under the mass of work. Having shifted the burden, the busy officers thought nothing of hoisting distress signals at any hour. Special messengers would drop into the office on Walnut Street with demands for immediate answers to any question that arose. It was not possible to improvise in such cases; equally impossible to dig into the textbooks for each answer. There was only one way to meet the situation. The light that burned late in Judson's front room showed the way of his young assistant. But the path among the estates of the dead was as profitable as it was difficult. So much so as to kill the zest of most probate court practitioners for battle in other courts. In due course young Johnson might be expected to confine himself to this type of work, which was more than enough for most. The word "trusts" was misleading: it was to take on another meaning later. At the time it covered only the relation of the trustee to what the lawyers designated as the c.q.t. (cestui que trust). Because the chancery court took nothing for granted and guarded its wards with a careful eye, the term had no sinister overlay. However, it was into this legal depository that a few astute lawyers were looking for aid in other problems, particularly of corporations, that clamored for attention.

[55]

JOHN G. JOHNSON

The latter field was even more confused. The general outlines of the rules governing the formation and conduct of corporations had not yet become clear. The rulings on these points were only gradually being built up. The corporation was as unfamiliar to many attorneys as the rule in Shelley's Case. The work of Johnson required an easy familiarity with both, and he concentrated on each with thoroughness. Matters of title were of equal evasiveness. Motion and Trial days in court were occasions to call forth the art of the distinguished man of the b a r — t o bring out the ponderous tone, the well-turned phrase, the special dignity that exuded f r o m the immaculate shirt fronts. Tracking an involved land title through musty pages was something else again. Even with the special "title sense" the work required, it was as unflattering to inflated self-importance as the dust of old records to laundered cuffs and velvet flounces. Even the conveyancers, who made such work their special forte, were sometimes helpless in the face of a hurry call. Speed as well as accuracy was vital. But Johnson, with a ready aptitude for such work, could be relied upon. The most involved searches might be left on his desk late in the day with assurance that everything would be ready for settlement next morning. There was some mystery of how he crowded all this into a few hours. The strain of overwork began to place its mark on Judson. In addition to the Pennsylvania Company's problems, he also had to look after the interests of the Rush family and their numerous in-laws. Benjamin Rush was suffering ill-health abroad. Henry J. Williams was an old man in semi-retirement, not disposed to bother with troublesome details. Judson had always leaned heavily on his assistant and, as his health failed, more of the cases f o u n d their way to Johnson's desk. The consequences were many. Johnson took the load of research f r o m his senior's shoulders and handled the usual miscellany of small case3 that find their way into the hands of an active neophyte. In addition, he was taking over more important cases for a widening circle of clients. In the matter of estates, he not only did the research but also argued cases with Judson. For the Ridgways he settled the simple tax questions related to their large real-estate holdings. For another client he brought up the vital debate of legal-tender notes versus gold in payment of a ground rent. This was of utmost importance when legal currency was quoted at a substantial discount. Johnson won the case on the particular provisions of the ground-rent deed without raising the more vexing question that later was decided by the United States Supreme Court. Although the initial labor on estate matters was p u r e drudgery, it soon brought him before the highest courts of the state. His opponent in his first case before the State Supreme Court was F. Carroll Brewster, one of the important names of his day. Soon he crossed swords with Eli

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Kirk Price, and within a short time had opposed most of the older men. The recognized leaders of the bar were well aware of the treacherous ground beneath the heavy thicket of estate precedents: Rawle, Biddle, and Wharton, and many another imposing figure, found their way to Johnson's office for a consultation. There was no loss of face in such a visit, even as the most eminent lawyers were later to seek out the tax specialist. The next step was the logical sequence: Johnson became the familiar guide through the maze. In the briefest period, the son of the former seamstress and the village blacksmith was taken in as associate counsel in difficult cases. John still was living with his mother in the little house on the Avenue in Chestnut Hill. The millinery business had been given up. Even the few old customers that Elizabeth had kept on "just for something to d o " had finally been sent away. Alfred and William had found employment in the city; John was doing nicely. He was no breezy Successful Son—as successful sons went in those days when the grocery clerk might walk off on Saturday night, and come home a few months later with oil on his boots and a bankroll in his pocket. But Johnson was also prospecting in new lush territory: estates and corporations were rich veins in bonanza lodes, as promising as Mackay's Comstock or Agassiz' Kennecott. His earnings were modest, but steady. His fees were small, judged even by the standards of his day when a dollar or less was the current charge for many of the simpler legal services. The great mass and variety of work that he managed to accomplish kept the income safely above the struggling point. With a frequency that now bordered on regularity, there were more generous fees—which meant more than the extra dollars. Of greater moment to his career was the character of the clients he was attracting—established business men, real estate operators and speculators, and those who did a little of both, builders from around the corner and out in the boom towns, the heads of new industries that were coming into the city. Never forgetting the deference due his chief, the young man nevertheless was flattered by the growing dependence on his own talents, the tendency of clients to hand their work to him. Now he began to stand out as a man apart in the courts. The combination of bulk and agile courage was rare enough to challenge notice. He learned the role of victor before the jury, the more gratifying syllables of a "judgment reversed" in the higher courts. He sensed when the lower court had erred, and never hesitated to carry his case higher. Even defeat could not be too bitter; he accepted it frequently, but only as one bows to the inevitable. His first case against an important railroad drew favorable comment, although he had lost it before a jury and later in the State Supreme Court. With Judson, he had represented a turnpike company whose bridge

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JOHN G. JOHNSON

had been fired by sparks from a passing locomotive. He had fought hard but futilely for the principle that the railroad company should have used the most effective modern devices for eliminating sparks. Everyone agreed that he had put up a splendid fight—even his clients, who were quite satisfied with his efforts. "One would think that you, and not we, have lost this case, Mr. Johnson," one of the turnpike officers laughingly tried to console him. It was already "Mr. Johnson" at that early day, and never thereafter would it be anything else. From the outset of his career he had little time to contemplate the confused state of his nation. While the nation madly pushed its new frontiers west and south, a madder scramble convulsed the old towns and cities. The war between the states was being refought. The property of the rebel leaders was to be appropriated to the national debt. In the Senate and House a hundred members scrambled for the spoils of victory. If Johnson was tempted to step from his book-lined life into the public glare, he had only to look up from his desk to change his mind. The antics of the majority of leaders were no inspiration in the swashbuckling day of virulent hate, cold-blooded ambition, and general bad temper. Bribery was the custom, lobbies squired land-grant petitions and railroad franchises. The high "protective" tariff grew up—to protect "infant" industries that long ago had cut their second teeth and sported heavy burnsides. The commanding voice of the people was no longer a bucolic drawl from the plains and hill country. It was a strident command, metallic, gold-plated, from the industrial centers. The occupant of the White House was fighting a losing battle against the new order of bi-partisan corruption. He declared that an aristocracy based on two and a half billion dollars of national securities had taken over the control formerly invested in the slave oligarchy. His prediction that the war of finance would be the next conflict was the opening gun of a long fight. John Sherman, who twenty years later was to crystallize his words into his anti-trust law, wrote to his brother: The truth is, the close of the war, with our resources unimpaired, gives an elevation, a scope to the ideas of leading capitalists far higher than anything ever undertaken in this country before. They talk of millions as confidently as formerly of thousands. In the South, reconstruction was synonymous with plunder, the issue of racial conflict insoluble. The Salem riot, which left the town littered with bodies of black and white, brought the problem to the doors of Philadelphia.

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Before a scene of poverty and despair, the South put up a gallant screen of gaiety. The parties, the sociabilities, went on. The gaiety in the North was no screen. It was three-dimensional, and a working part of the pattern. Just as surely as the whistles blew and the steam puffed throughout the week, the saloon doors swung and the bottles popped of a Saturday night. Right along with boom-time and big speculation skipped gambling, vice, and drunkenness. In the friendly gutter workingmen's overalls mixed with white waistcoat and spats. A drunken Senator on the floor of the Senate roused no special comment. The plums were falling; the carnival was at its height. From the lobbies of Washington the lines led directly to the Quaker City—the office of Jay Cooke and his palace at Ogontz. New money was making itself felt in the busy shops and the new suburbs of the city. Early in 1867 the appearance of a little pamphlet sounded another call to battle. An alarm directed against Johnson's adopted door roused the young lawyer as noisy conventions and bitter partisan conflicts had failed to do. Out of the grave Dr. Benjamin Rush rose to demand a service. For a few brief hours Johnson closed his books and took up his weapons—his wit, his literary flair, and his pen. The varied career of patriarch Rush had left diverse impressions. Several European governments honored him for his work on yellow fever, but the local fraternity attacked his professional attainments and brought about his resignation from the College of Physicians. Not content with using his own newspaper to campaign against Dr. Rush's methods, William Cobbett published a special magazine, The Rush Light, for such violent attack that Rush sued for libel. The jury awarded him a substantial verdict, but neither this nor the Academy of Medicine, which he had established, could undo the damage to his professional reputation. Near the end of his life, the Doctor was glad to accept the post of treasurer of the Mint—a token reward of his patriotism. In the field of politics, he was equally the center of many storms. When the Rush family became entangled in a controversy over the merits of their many-sided ancestor, Johnson was not unconcerned. The feud was precipitated by William B. Reed, smooth faced and intellectual, formerly member of the State Legislature, District Attorney of Philadelphia, and Minister to China. Reed's ancestry, which was not undistinguished, included a grandfather, Joseph Reed, President of the Council of Pennsylvania, whose public career during the Revolution had drawn some unfavorable comment. In the chronicles of the Revolution was glory enough for both families. Reed and Rush had played honorable and prominent roles; the contribution of each to his country was too solid to be disturbed by any

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slight imperfection. Only the over-sensitive ears of their descendants caught a faint rattling of skeletons. Benjamin Rush, grandson of the Revolutionary doctor, was sick in London in the spring of 1867. Between him and William B. Reed there had been at best mere civility. To allay some doubt brought up in a monograph by General John Cadwalader, Reed had written a scholarly history of his distinguished forebear twenty years before. This had met with gratifying success. Letters came from Albert Gallatin, Chancellor Kent of New York, John Sergeant of Philadelphia, John C. Calhoun of South Carolina, and John Sparks of Massachusetts, all commending Reed's portrait of his ancestor. George Bancroft, the historian, was convinced, as well as Cadwalader. The former went so far as to write a letter of appreciation of the work of the grandson and the patriotic service of the grandfather. In the twenty years that followed, however, Bancroft's reputation grew until he became dictator of his own special kingdom of letters. He felt himself one of the literary hierarchy of New York, whose slightest opinions carried the weight of a pronouncement. Not even the prestige of Boston and New England could overshadow his authority. In February 1867, a third edition of Bancroft's History was published. In it, the historian reversed his benign opinion of Reed, inspired perhaps by the grandson's conduct during the Civil War, since William B. Reed was one of the Copperheads of the Philadelphia bar. Reed was mystified and enraged by this new attack. He seized his pen in retaliation. The result—President Reed of Pennsylvania, a Reply to George Bancroft and Others—was an ill-advised effort. It gave undue emphasis to an incidental charge against Reed that arose from a casual conversation with Dr. Benjamin Rush. The Doctor's singularly complete diary recorded their talk as the two men rode from Bristol to Washington's Headquarters in Newtown near the end of 1776. The Doctor indicated that his companion had spoken in a defeatist tone; had cast doubts on the army leadership, and had declared the Revolution itself to be a mistake. The sensitive Reed was in no mood to view the matter in its proper light—an exchange of opinion between the leaders. The reappearance of an old spot on the family escutcheon—which he had every reason to believe he had washed clean with his own literary efforts—was a personal blow, to be returned. The method he chose to defend Joseph Reed was to attack the character of Dr. Benjamin Rush. This was bound to fan the flames of controversy, and to make the slight imputation of Bancroft the signal for feud between two prominent families of the city. The Reed attack touched upon a distressing, but equally blameless, incident in the Doctor's political career. Rush, suffering dismay over

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the vicissitudes of the Colonial Army, h a d sent an anonymous letter to Patrick Henry, which contrasted the inefficiency of General Washington with the success of General Gates. The letter was forwarded to Washington. In the course of time the resulting breach between the two men was healed, and they h a d once more become good friends. Eventually the Reed pamphlet came into the hands of Benjamin Rush in L o n d o n . He was fifty-six years old and in poor health. The reply he forced himself to write reflected the last. Reed was described as a " p a m p h l e t e e r — a desperate, double-dealing, dethroned, disappointed, despised politician . . . a traitor to his party . . . a traitor to his friends . . . a traitor to his country . . . saved f r o m ignominious expulsion f r o m Chestnut Hill." T h e r e u p o n a shriek: This is the man, who, rioting in his shame, and assuming knowledge where he has it not, now dares, in the face of the Nation, to trample u p o n the graves of those who helped to found it, consecrated, I will say, for I speak here as an American citizen, p r o u d of his birthright, and not as a grandson of one of the silent dead—consecrated by the patriotic recollections of a whole people, and the lapse of more than half a century. Shame u p o n h i m ! Shame u p o n h i m ! Then followed a curse in the best Brahmin t r a d i t i o n : Be it f o r him, ruthless violator of the Tomb, u p o n the mouldering tenants of which he satiates his depraved appetite with hyena-like voracity, be it for him, all prospect of political elevation, the coveted goal of his life, having been crushed by the weight of his political infamy, to seek to scramble out f r o m under the ruins into the gaze f o r which he still daily lives and moves and pants, by reproducing in every form of the book-makers' and pamphleteer art, with the aid of every homely testimonial, his twice-told tale of an ancestor's claim to renown. There were f u r t h e r passages that defied explanation. The effect of the hysterical broadside could only be unfavorable. Even those who knew the Reed grandson slightly could not but resent the Rush portrait. Meanwhile, George Bancroft called an intermission in his preoccupation with the reeking municipal c o r r u p t i o n of New York and the impeachment drama on the boards in Washington, to compose a new m o n o g r a p h : A Historical Essay upon Joseph Reed. It was preceded by two lines f r o m Schiller that indicate the tenor: I saw, too, glory's holy flowers Round common brows p r o f a n e l y twined. The historian's defense of Dr. B e n j a m i n Rush was calmer than the grandson's and certainly more effective. He admitted that Rush was impulsive and impatient, that his therapeutic measures were drastic,

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JOHN G. JOHNSON but avowed that f r o m early youth to old age, his patriotism c o u l d not be doubted; that whenever a question regarding freedom a r o s e , he was always on the side of freedom. He praised Rush's c a r e e r as citizen and physician. He pointed out that he was among the first to speak for the abolition of slavery, as well as for the independence of the Colonies. He quoted the E u r o p e a n estimate of his work during the yellow fever epidemic, declaring that " n o t P h i l a d e l p h i a alone, but a l l mankind, should raise to h i m a s t a t u e . " His zeal in defending R u s h was equalled by the vigor of his own attack on J o s e p h Reed. T h e arbiter of history was determined to show that his rulings were not to be questioned. He blasted Reed with every weapon at his command. T h e method was m o r e refined and s c h o l a r l y than that of B e n j a m i n Rush, but the result was the same. Into this war of broadsides rode J o h n G. J o h n s o n , j u s t four y e a r s at the b a r and twenty-six years old. He was friend and counsel of the R u s h family, the logical knight to c a r r y the R u s h colors. T h e y o u n g m a n , who was untouched by the epic partisan c a m p a i g n that raged between Grant and Seymour, who could not be lured f r o m his desk by the famous beauty of P h i l a d e l p h i a ladies, or inveigled into the theatre by the dramatic readings of F a n n y K e m b l e or the triumph of J o s e p h Jefferson's R i p Van W i n k l e , or even distracted f r o m an hour's legal labors by the forecasts of Mrs. Daniels, Number One Spiritualist of the seventies, galloped into the fray. T h e pamphlet issued by a l o c a l printer was entitled: A criticism of Mr. W i l l i a m B . R e e d ' s aspersions on the c h a r a c t e r of D r . B e n j a m i n Rush, with an incidental consideration of General J o s e p h Reed's c h a r a c t e r — b y a m e m b e r of the P h i l a d e l p h i a B a r . On the title plate was the c o u p l e t : He who stands upon a slippery place Makes nice of no vile h o l d to stay him up. T h e somewhat unfamiliar quotation f r o m K i n g J o h n , and the f a m i l i a r handling of Shakespearean phrase and idiom in the m o n o g r a p h were noteworthy. T h e young lawyer apparently understood that some reason was due f o r his entrance on this ancestor-consecrated battleground. His preface stated: Understanding that the descendants of Dr. B e n j a m i n R u s h will not reply to M r . W i l l i a m B . Reed's recent assault upon their ancestor, the writer, as personally acquainted with many of them, and as an American indignant at M r . Reed's attempt to deprive the n a t i o n a l inheritance of the fair fame of the F o u n d e r s of Independence by exhibiting as a true picture of one o f these patriots a p o r t r a i t which with no light other

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THE WARS OF THE GRANDFATHERS than that of treacherous i m a g i n a t i o n , he has outlined with little stabs of a stiletto steeped in the g a l l of his passions, has felt impelled to do so himself and to unmask the real motives of the attack. In doing this, however, he has ventured upon no systematic review of Mr. Reed's work, and has respected the feelings of those universally esteemed descendants of General Reed who have never joined in M r . W i l l i a m B . Reed's efforts to f o r c e their ancestor into an undue prominence, nor in his assaults upon those whom the sanctity of the grave should shield. T h i s diffidence, however, was merely the polite gesture, since the following postscript was a d d e d : J . G . J . M a y 1 3 , 1 8 6 7 . M r . B e n j a m i n Rush's reply, which has been received since the completion of this Criticism has removed one of the reasons which induced the p r e p a r a t i o n . In f o r m , the p a m p h l e t was a legal b r i e f ; in substance, it bristled with biting thrusts, and all the tricks of style that an aroused Macaulay might have used. M a n y of the p a r a g r a p h s might convince a j u r y , but would h a r d l y stand up under e x a m i n a t i o n . T h e p r o m i s e of impartiality soon vanished. Within two lines, he placed J o s e p h R e e d — t h e honesty of whose conduct had been attested by W a s h i n g t o n h i m s e l f — i n a prisoner's dock, with a presumption of guilt: T h e r e are in this community m a n y , who whilst they might f a v o r a b l y consider an application f o r the defendant's pardon in Commonwealth vs. Reed, have ever felt it their duty to frustrate not only his accomplished advocate's unprofessional attempts to set aside a verdict, which has stood f o r upwards of eighty-four years, unappealcd from and unshaken, but still m o r e his efforts to substitute f o r the notoriety which justly attaches to his client, the greatness which was not his due, by making a s t r o n o m i c a l observations in the Revolutionary sky through a telescope reversed whenever the satellite Reed was not in the field of vision. T h e y have done this by republishing twice or thrice since 1 8 4 7 unanswered and unanswerable charges, specifications and proofs of the Cadwalader indictment. T h e next sentence contained another promise of moderation, which was again cast aside b e f o r e the p a r a g r a p h was ended: T h e r e are others, however, of whom the writer until recently was one, who in admiration o f the untiring industry with which Reed has so long l a b o r e d at his H e r c u l e a n task o f cleaning the Augean stables of his g r a n d f a t h e r ' s reputation, and still more out of regard f o r the sanctity of the grave and the susceptibility of the living have felt no disposition to interfere with his endeavors to bemuse the public as to the exceeding smallness of his p a t r i m o n y in that particular in which [63]

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according to Home Tooke, the children of Sir John Scott were so unfortunate. Such interference, however, has become an imperative duty, since, not content quietly to submit to his failure to remove the remains of his ancestor from the Valley of Humiliation in which, though honored they were mouldering undisturbed, to that Laurel Hill in which lie entombed only the "accredited" patriots of the Revolution, Mr. Reed has striven in his revenge to disfigure and overturn the monuments which the gratitude of posterity had erected over the honored dead. Without going further into these endless sentences, two paragraphs will indicate the imagery of the young man, who, later in life, was considered to have no interest outside the law. In imitation of the military tactics of the Celestials with whom dragons and gongs are estimed more potent than powder and ball, the ghost of "party rage" is conjured from his grave by the modern Witch of Endor. Or again: Before entering the pasteboard palace in which Mr. Reed had enshrined his idol, it was found necessary to rearrange a little the cards with which he had constructed it; but then the privilege of "cutting" after those overadroit in shuffling must be exercised in most games of cards. There is no indication that these literary broadsides penetrated the armor of public indifference. The community was taken up with graver issues. The family feud did stir stagnant social waters. Even those who would have remained aloof were forced to take sides. The matter was discussed in cultured tones over many a Haviland teacup. No official verdict was handed down. Shortly thereafter, Reed, whose practice had waned as a result of his open sympathy for the Southern cause, lost most of his fortune. His social position soon followed; he drifted off to New York and found work as a poorly paid writer on the New York World, dying in oblivion. The vigorous aid of the young man was flattering to an ailing old man, but it is doubtful if the gesture, in retrospect, was as satisfactory to Johnson. Certainly he never referred to his literary début; nor was he thereafter lured into such escapades. His writings, outside the routine of the law and a single book on paintings, were limited to an occasional public letter, always on a subject within his own knowledge and domain. Possibly this was the result of no concrete decision. His life merely became too absorbed, his duties multiplied too rapidly. Nor did he drag the Seven Muses into court. He saw no reason for garnishing the law; it was an end in itself. He was the master of direct

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advocacy, free from frills and fancies. In the fashion of nineteenthcentury law it was a radical, even an amazing departure. The door had been opened on an attractive corridor, and certainly Johnson must have enjoyed the refreshing breeze. Many of his contemporaries with less encouragement had strayed down the enticing path. Johnson apparently closed the door without a sigh—glad to end an episode which he most likely regarded as a folly of youth. His repeated admonition to clients and associates, "Never raise blisters," may have contained a tinge of regret. Many years later he was to head a Bar Committee that helped place another Reed descendant on the local bench. Meanwhile, the light still burned late into the night at his office. It was noted by his fellow lawyers as they hurried past the door with their ladies after an evening at the theatre to catch the last train out of the city. Johnson's late-burning light caused more comment than his "Criticism of Mr. William B. Reed's Aspersions . . ."

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A

_/Ti_FTER a short campaign in the period of the emergency and a brief sortie into literature, Johnson turned his attention solely to legal practice. But soon history was to be reflected in the men and matters that came into his office. They wrought great changes in the pattern of his life. In the spring of 1862, when he had weighed entry into the Law Academy, the Confederate ironclad Merrimac made a surprise attack upon the Union ships at Hampton Roads. The furious onslaught stunned the world of wooden boats, and at the same time prepared a worthy problem for the future lawyer. The success of the ironclad augured the doom of the old fighting ships. Later the frustration of the Merrimac by the Monitor confirmed the new era of armor-plated men-of-war. Every navy in Europe set to work building the new battleships. The United States began to look for an adequate navy yard. At this time, Johnson was still taken up with the mass of work in the Judson-Williams office, where he was earning modest weekly sums as well as a wealth of experience. Part of this experience concerned a parcel of ground which the Pennsylvania Company had owned for many years. The Island—nine hundred acres in the Delaware River—stretches eastward from the mouth of the Schuylkill, forming the southernmost tip of the City of Philadelphia. Originally it had been granted to the Land Company of London, which had surveyed it in 1649 as a possible site for a fort for the city's defense. The survey gave rise to the name "League Island," since the circumference was found to be about one league. Plans for the fort never were carried out, however, and farmers instead of soldiers took possession. For about 130 years, until 1835, it was tilled by small truck farmers, until Charles Wharton bought out their squatter titles with the help of a $60,000 mortgage from the Pennsylvania Company. The company was twenty-five years old, and had just come into trust powers, with trust funds amounting to about $5,000. It was the leading

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THE GREAT POPULARITY c o m p a n y of the city in the field of insurance and annuities, but a m o r t g a g e of this size was a m a j o r responsibility. When Wharton died a few years later, the company had to foreclose, and in 1842 it received unwilling title f r o m the sheriff. It was a situation that required much explanation to inquiring stockholders. F o r years the island had been protected against high tides by an earthen embankment, but repairs had been neglected and large sections of the company's investment were washing away with every storm. The directors immediately took steps to s a f e g u a r d their island; at the same time they pressed their agents to dispose of it. A few months later the property was rented at $1,600 per year, the only constant income f r o m the investment during the entire period of the company's ownership. B y extending the embankment, the flow of water f r o m the river was completely cut off and a large strip of land reclaimed. T o prevent further washing and to keep the island f r o m joining the mainland, the directors h a d a wall built, which also fixed the northeast boundary a g a i n s t claims of near-by settlers. The minutes of the day solemnly record that these embankments were backed with mud to keep muskrats f r o m b o r i n g through. These improvements doubled the rent and increased the chances of sale. F o r twenty years thereafter the company was on the alert for a prospective customer. L e a g u e Island was the shadow over every directors' meeting; it was the red scourge on every balance sheet. Every employee and correspondent was cajoled and threatened in the name of L e a g u e Island. A series of possible buyers kept the tension at high pitch. Great expectations were followed by keen disappointments. F o u r acres were almost sold f o r a rolling mill. There were long negotiations without result for the purchase of fifty acres by the local g a s c o m p a n y . There was a momentous inquiry about the price of the whole island, and a minor correspondence concerning the sale of acreage for a foundry. T h e Schuylkill Navigation C o m p a n y would have a substantial parcel if the company would build wharves. The directors themselves organized the Delaware and Schuylkill B a s i n Company to develop the island as a transfer depot, but a d r o p in the money market, and the panic of 1857, called a halt. T h e site was dangled before the Pennsylvania Railroad at an attractive price as a rail terminus. But the railroad was cold to the idea, and the sole result of twenty years of corporate palpitation was the sale of a single acre to the Red Bank Ferry C o m p a n y for a thousand dollars. T h i s and the yearly rental were the sole credits in the ledger against the costs and expenses of involuntary ownership. Except for fact and experience, L e a g u e Island seemed an excellent investment. N o other p l a c e within the limits of Philadelphia offered

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JOHN G. JOHNSON such advantages of extensive deep-water frontage, and convenience to all shipping points. When the Government started looking for an adequate site for building the new type of war vessel, the alert Pennsylvania Company brought out League Island and polished it up to match the competition of Newport News. The city fathers were also gravely concerned. They appreciated the suitability of the island for ship-building, and were fully aware of the benefits a Navy Yard would bring to Philadelphia. They decided to clinch the choice by presenting the site to the Government. This gesture would repay the city many-fold. Great industries would be attracted; real estate values would jump, tax assessments would rise, the deep-water dockage would be vastly increased, and hundreds of citizens would find employment. They sounded out the company on the matter of purchase. The Navy Department, on the other hand, saw in League Island an area twice the size of the largest European yard, with abundant water frontage and proximity to a large maritime and manufacturing center. With the new Navy Yard a gift from Philadelphia, the Government would have a clear profit on the sale of the old yard at the foot of Federal Street. But the most urgent reason for the selection of League Island was its security against attack and its all-year, fresh-water harbor. A contemporary writer noted: It is hardly doubted by anyone that iron vessels are hereafter to constitute our principal reliance for harbour defense, and iron vessels will last ten times longer in fresh water than in salt water. Negotiations dragged on. The Civil War came to an end. Committees from the House and the Senate, and a Board appointed by the Secretary of the Navy and by President Andrew Johnson himself, inspected and approved the property. Finally the Secretary of the Navy was empowered to accept title on behalf of the United States. The deed was executed on December 12, 1868, but the Government did not move its Federal Street Yard to League Island until 1876. With the receipt of nearly $400,000 for their island, the directors of the Pennsylvania Company could now meet without the old dread. From his first entry into the Williams-Judson offices, Johnson had followed the history of League Island. Later the legal problems in connection with prospective tenants and purchasers had been turned over to him. When the city became interested, the Pennsylvania Company could hardly believe a turn had come. Judson's office was deluged with inquiries. The State Legislature would have to be consulted, members of the City Councils—both Select and Common—insisted that they

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THE GREAT POPULARITY be in on the matter. At all times a finger must b e kept on the national pulse. T h e course of negotiations between the Government and the city must b e closely watched. T h e parleys between the city fathers and the directors required a studied restraint. T h e price must be high enough to bring the company into the clear, and yet not such as to i n j e c t the taint o f profiteering and dampen the ardor of the city treasurer. J o h n s o n ' s mastery of detail, his automatic grasp of legal requirements and bureau methods enabled him to guide the transaction to a smooth c o n c l u s i o n . In the course of his work he met city and state officials, heads of banks and trust companies, directors o f corporations that were expanding under the stimulus of war contracts. Everyone was impressed. It was not simply that everything moved forward, but that everything moved with amazing ease. T h e usual friction generated by so many diverse interests did not develop. T h e many preliminaries to the transfer of League Island to the United States Government, the multitude of legal questions, had all been fused into an easy routine. T h i s was his first m a j o r triumph. His name was now familiar to many highly placed; he was known outside his own circle, even outside his city. T h e officers of the Pennsylvania Company had a new appreciation of his ability and showed it in many ways. When, in 1 8 7 0 , a charter amendment permitting a change in the voting power of stockholders was to be presented to the State Legislature, J o h n s o n was sent to Harrisburg. T h a t same year came a greater opportunity. T h e position of chief counsel of the Pennsylvania Company was the most prized legal post in the city. B u t it was also believed that its tenure was precarious, and that no man could long bear up under the load. T h e j o b had been easy enough at the beginning in 1 8 0 9 , when the c o m p a n y was functioning under its original charter and c a r r y i n g out its insurance and annuity purposes. J a r e d Ingersoll, first counsel of the company, had been confronted only by general problems of incorporation and legal powers. T h e operations of the c o m p a n y in a single room with two employees on a $ 2 , 7 0 0 annual p a y r o l l hardly taxed a leader of the b a r . Ingersoll's successors, J o h n Sergeant and Horace Binney, outstanding men of their day, had little real work f r o m the company. It was not until 1 8 2 9 that the c o m p a n y first began to exercise trust f u n c t i o n s ; even by 1 8 3 8 there was only one trust estate on the books — a fund of exactly $ 4 , 9 3 2 . 3 9 . As late as 1 8 4 5 , total trust funds were well under $ 2 0 0 , 0 0 0 — a b o u t the size of an estate worth trust company solicitude today. B y the time J o h n s o n was enrolled as a law student, this b r a n c h of work was developing rapidly. At the time of his association with Judson, the total trust assets had passed the million mark. Even corporation trusts, in c o n j u n c t i o n with c o r p o r a t e mortgages, were becoming

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JOHN G. JOHNSON part of the company's business. T h i s type of service, begun in 1 8 5 5 , led to trusteeships f o r the securities of many of the early railroads, and a general broadening of the questions its counsel was called upon to answer. With the Civil W a r c a m e many new legal problems. F o r e i g n trade brought its share. Always the lending of money drew in its train interest, frequently supervision and control and, in some cases, ownership. On M a r c h 6, 1 8 7 0 , Judson died. T h e burden had proved too much. His death was more than a blow to his friends and the c o m p a n y . H e had been helpful to many members of the bar. T w o days after his death, a memorial meeting was held in the District Courtroom to voice the general grief his passing had occasioned. George J u n k i n called J u s t i c e William Strong, of the S u p r e m e Court of the United States, to the chair. Fitting tributes were paid to the young man who had risen so quickly to a place of eminence in the profession. A memorial resolution was seconded by several members, among whom were Henry J . W i l l i a m s and J o h n G. J o h n s o n . Both added their words of sorrow and of praise. T h e directors of the c o m p a n y had no need to scan the legal horizon for J u d s o n ' s successor. J o h n s o n was the logical choice. H e was j u s t past twenty-eight, but the vitality of youth was not handicapped by unseasoned judgment. Already he had a large private practice. T h e friendship of W i l l i a m s was also a strong point in his favor. Although the older man had retired f r o m active practice, he still had a strong voice and a heavy stock interest in the affairs of the Pennsylvania Company. T h e legal fraternity shook its head. Congratulations were sobered by predictions that he would break down within the year. A l r e a d y the effects o f overwork were showing. He had a large frame, but a lean and driven look, and his high cheekbones stood out like an Indian's. H e had little time to spare f o r the selection of clothes, little energy to expend on personal appearance. Often as not his hair hung over his neck. Under the gaunt exterior however, he was tough and wiry, and the result of the additional labors confounded all forecasts. He dug in, readjusted each day's routine by adding an hour of work at each end, and went about his business as before. He mastered the details of each of the estates in the company's files, and picked up the new folders as they c a m e to him. He continued his search of titles for clients and other lawyers, argued motions and rules, prepared briefs, tried cases, and thrived on the work. His ability to shoulder such a load remained a mystery. H e seemed to handle with ease what other men found a physical and emotional ordeal. B y no means as robust as in later life, he seemed immune to the usual worry and tension that go with responsibility. T h e volume of

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work seemed to provide its own antidote; it became mere grist in the mental mill to be threshed without emotion or strain. He soon outdistanced all associates at the bar. The formality of the older lawyers and their preference for delays irritated him. Courtroom battle was his calling, and he reveled in it. He was taken in as senior by a multitude of older as well as younger men who needed his fighting brawn. To these he always was considerate with advice and generous with help. He passed from courtroom to courtroom and from trial to trial without ceremony or respite. The pattern of his life was closely knit: early morning work in the office, five hours daily in forensic discussion, two to three hours in the afternoons before examiners or masters, a resumption of office work prolonged until a late dinner hour, and work at the office until midnight. To a large extent he personally looked up the precedents in a case, and invariably made his own analysis of testimony. He discriminated in his selection of cases, using them as illustrations of the general principle rather than as authority. Once having obtained all the factors of the problem, he decided it without hesitation and dismissed it to take up the next. Johnson's appointment to the strategic position of General Counsel of the Pennsylvania Company swelled to a flood the steady stream of clients that already flowed into his first-floor offices. Such a rapid success was not unique. In many towns and cities business and professional men had quickly won public patronage. Johnson's practice was exceptional in that it began with his first year at the bar. It was a steady expansion, reaching out year by year in widening circles. The increasing volume could not be handled by enlarging his offices or adding new workers to his staff. It was a strictly personal job. Clients wanted to be sure that their burdens were shifted from their own shoulders to his. They wanted to know that his authoritative voice would speak for them in the courtroom. Around the growing city the word went from mouth to mouth—from storekeepers, realtors, builders, from the men and women of the great middle classes in their rare hours of crisis: "You had better see Johnson," or "John G.'s the man for that." In the higher reaches of finance and industry, the same word was passed about a rising young attorney, who seemed to know all the answers—who listened gravely, spoke briefly and mildly in his office, often as not with a merry twinkle in his eye, and a clipped, dry humor; who had an enormous faculty for getting things done and, best of all, fought stoutly in court. No case was too big, nothing too small for his personal attention in the office or courtroom. No sum of money, however trivial, to which his client might be entitled escaped his notice. He argued violently for [71]

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a client's traveling expenses and witness fees and, when they were disallowed, took his appeal (without success). He rarely admitted defeat, and when the jury brought a verdict against him, he battled for a new trial with undiminished zest. When able Moses Dropsie opposed him with a case built upon an alleged cloud of title, he stressed only the unreality of the injury. "You haven't been hurt," was his sole defense. Practice in those days was highly technical, and Johnson if necessary could be as technical as any. In estate and title matters, especially, he was at home. Several difficult situations arose after the retirement of Williams and the death of Judson. In a number of cases where Williams had acted as trustee and had been discharged voluntarily, the Pennsylvania Company was appointed in his place. Objection was made to this on the ground that Williams was a heavy stockholder, and that the company could not move impartially where his acts as a former trustee were in question. Johnson met this objection urged by some of the ablest men at the bar, won several cases on the point, and prevented a substantial loss of business to his client. All the while, he handled the minor cases which customarily fell to the lot of the junior practitioner. He brought suit against the railroad on behalf of a man evicted from the train for refusing to pay a small additional fare. He interposed technical and dilatory pleas against small claims. He spent hours in the courts on motions and rules—a common practice in those days. Business men flocked to him. He brought suit for commissions on thirty locomotives sold by an enterprising salesman; they added up to a considerable amount. He was versatile as well as thorough. His opponents never knew what to expect. When objection was made to a sheriff's sale on the ground of defective advertising and gross inadequacy of price, Johnson, representing the purchaser, in open court offered the property to the previous owner for payment of the debt, interest, and costs. The opponent's sails sagged at once. Indication of his constant effort to get down to essentials is shown in this court record: During the argument Mr. Johnson waived the privilege of objecting to the reading of letters by complainant's counsel, which had not been made part of the case by being included in his bill, or introduced as affidavits. His first notable j u r y case was in divorce. Leonard H. Koecker, a fashion plate of that day, who had been a great success with the ladies before his marriage, apparently did not fare so well in double harness. Johnson was associated with Theodore Cuyler for Mrs. Koecker, the libellant. On the other side was the dignified George Northrop, as handsome as his client. For more than a week the case was hotly con[72]

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tested. Young Johnson sat in the draft of an open door, his huge, gaunt frame overflowing the small chair, his rumpled overcoat wrapped about his knees. His hair stuck out behind his ears and hung over his neck. When he rose to object to a question on cross-examination he threw down his overcoat, shook his head vigorously and roared. His manner was in striking contrast to Cuyler, who addressed judge and witnesses in bland tones. The evidence became too heady for the delicate feelings of the libellant. Cuyler asked that a juror be withdrawn: a settlement was arranged. Even before the judge had recovered f r o m his surprise at the sudden end of the week-old trial, Johnson was out of the courtroom. A few cases culled from the great mass do not tell the story of his work. Agreements, wills, estate accountings that never figured in litigation took up most of his time. The frequency of his court appearances gave only a hint—but a startling hint—as to the volume of his consultation and office practice. His outer office was filled with clients of all ages and classes. Some sought only a short interview: ten minutes of reassurance and understanding. There was plenty of assurance in the massive head, solid comfort in the expansive shoulders, the relaxed muscles. There was kindliness and sympathy, too, in the features, and, above all, interest in the concerns of the average man. His office continued to be the old dwelling house on the south side of Walnut Street below Eighth. It consisted of a front and back parlor. The wide double doors between the rooms were always open. He sat at his desk in the middle of the back parlor, his chair tilted back slightly, with his hands folded behind his head, and listened. Each man's ten or fifteen minutes belonged only to him—the millionaire waiting his turn with the hundred-dollar man. During that time Johnson identified himself with the client, took to himself his special problem, lived through it, examined it with the concentration of the technician. Nothing else existed but the client and his problem. The visitor saw no lost motion, no time spent on the trivial; only a keen interest, a few pertinent questions, an occasional grunt of surprise or disgust. WTien the client got up from his chair, he knew that his burden had been shifted to able and willing hands. In the courtroom the identity of lawyer with his client was continued. In the strictest sense Johnson was the mouthpiece of his client. In every inflection, every gesture, the toss of his head, the hunch of his shoulders, he was giving himself to his client's cause. He had the faculty of expressing legally every shade of emotion felt by the man who depended upon him. It was a strictly partisan performance, replete with invective, protest, and sarcasm. Its real strength lay in a rugged simplicity and a basic

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democracy. Cases were not merely dossiers; the lawyer understood that each was compounded of human needs and aspirations; for a brief hour in court, he made these his own. There was more than a personal triumph in Johnson's rise. His character was not in harmony with the Iace-and-velvet traditions of the bar that still survived in many forms. The rewards for his direct and businesslike methods would have been far less, even highly problematical, in the days when lawyers wooed Justice with oratory and hyperbole. Johnson, talking to the jury as one might talk to a neighbor over the fence, would have been a sorry let-down to courtroom audiences expecting a costume drama with Chautauqua-style speech. That style was by no means past when Johnson entered the Rush office. David Paul Brown, Benjamin Harris Brewster, and later Colonel Robert Ingersoll and Joseph Choate in the major leagues and minor circuits put on a first-rate show for the groundlings. But the better education of the middle classes, the growth of newspapers and magazines, brought on a greater sophistication. Oratory as such lost its charm. Evidence rather than eloquence, earnestness and simplicity rather than bombast, won jury verdicts. Johnson was not the only one to sense the change in popular demand. In Massachusetts Theophilus Parsons, later a noted judge, affected a similar style, making no show and treating each case as a simple affair. After many of Johnson's brief talks to juries, followed often as not by a speedy verdict, the jury's reaction was not that it had witnessed an adroit performance. On the contrary, it carried away no impression of Johnson the lawyer, but only of a sincere man. Before the judges, Johnson was succinct. Few men could say as much in fifteen minutes. On rare occasions his easy flow of words reached a peak of oratory—but this was the exception, saved for the perfect moment. There were other changes in the air. The traditions of the bar were noble, but encrusted with the mold of stagnation. The leaders were mostly men of social distinction—and acutely aware of it. The average client was faced with the choice of being robbed by the denizens of the Barbary Coast or snubbed by the elegant practitioners. The latter had aped the pomposity of the British barristers and emphasized the sacred mystery of the Law, the holy of holies entrusted to the High Few. Behind this façade, fancy prices made legal victory a luxury and defeat a financial disaster. This brand of legal service, handed out in so ornate a package, was by no means first class. The ancient elegants moved in step with the slowness of the courts. Few were eager for battle, and continuances accorded by reciprocal courtesies stretched the delays. Many, like Sheppard, Shapley, Bullitt, F. C. Brewster, maintained a semblance of business efficiency. Others ambled along. The offices of

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JOHN G. JOHNSON As a Young Man

THE GREAT POPULARITY

several leaders had the easy atmosphere of a social club. With these things in mind, a great judge once prescribed hunger as the indispensable ingredient of a fighting lawyer. That motive was absent from many of the legal gentlemen of the seventies. Their offices looked back leisurely over two or three generations, their interests were varied and often far afield from desk or courtroom. With others, legal practice was simply a springboard into politics, or a means of gaining a competence, when life would really begin. Generally the comfortable practitioners played hard and seriously, and worked fitfully. There were notable exceptions, a few who had every advantage of family and fortune, and added legal talent and great ambition. These afforded Johnson real competition. The others could not touch him. Faced with a fight or a complex legal problem, they sought the easiest way, retention of a fighting lawyer. Johnson's unswerving application was a matter of constant amazement, as his progress was one of slight envy. Pennypacker, who knew him in the Law Academy wrote: Save that he would occasionally go to see a game of baseball . . . he devoted himself exclusively to the law, permitting nothing to tempt him aside. Also: His success at the Bar was due to physical and mental power rather than cultivation. . . . He works at the law from early in the morning until late at night . . . But he had to add: When he arises to argue or to try a case, the court, the jury, the lawyers, the bystanders, and even the tipstaves all give attention. There still was a small-town interest in trials and lawyers; the average citizen and his wife still paid an occasional visit to the courts, as the inhabitants of rural districts still flock to the sessions of the circuits. The lawyer still was conscious of a certain importance in arguing a case, irrespective of the amount involved. He was also aware of the close scrutiny of his trial performance. His success still depended on the gossip that rippled out of the courtroom. Only ten years at the bar, Johnson already felt himself a cog in the machinery of justice. He was an officer of the court in more than a technical sense. The volume of his business brought about a subtle change in his attitude toward the public, in his conduct in the office and courtroom. It made orderly habits of work and thought indispensable. It made each day a complete, compact design. The businesslike lawyer became more businesslike. He no longer was waiting for the main

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chance—eager for a case that would bring recognition and money. His initial reaction to new business was a detached appraisal of the merits, disinterested, impartial. There was no time for dawdling; he was working for a constant deadline. He hurried past, envied by a few who did not realize the price he was paying for his zeal, and pitied by many who saw him condemned by his own talents and ambition to a rigorous servitude.

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VIII

Where There's a Will E F O R E Johnson was ten years at the bar, his name was associated with a major case that drew the attention of the entire city. The litigation serves to explain the existence of the Ridgway Library, and its unusual location on South Broad Street about a mile from City Hall. The pillared front, extending nearly 150 feet, follows the classic lines of a Doric temple. The building—too austere for a palace and not grim enough for a prison—might be termed a monument to the Rush ideal of family loyalty, and, in some degree, to the ability of Johnson. The origin of the Ridgway Library goes back to Dr. James Rush, who studied medicine in Edinburgh and Germany, and returned to his native city to marry Phoebe Ann, the equally traveled daughter of wealthy Jacob Ridgway, Stephen Girard's business rival. But the tastes of husband and wife differed widely. Money to Dr. Rush meant time to study, and means to buy, obscure volumes on the less obvious phases of learning. While his wife dined celebrities, he wrote books which few knew about, and fewer read. His wife died in 1857. Dr. Rush found the burden of her immense fortune nothing but a bore. He spent the remaining twelve years of his life happily among his books, and the neighbors called him "strange and gentle." At his death his will proved to be a unique listing of annoyances. After arranging for a few gifts to members of the family, the Doctor left the remainder of his million-dollar estate in trust to Henry J . Williams, his brother-in-law, for the purpose of constructing a library. It was to be an adequate building on a lot not less than 150 feet square, it was to be Doric in design, protected against fire and other threats— but there must be no lectures or speeches made in this library; no statuary, sculpture, or paintings, no cushioned seats, no lounge chairs, no fiction, poetry, political writings, biographies, periodicals, or newspapers. And the bones of husband and wife were to be housed in this temple of learning.

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Dr. James Rush had died May 26, 1869, of sunstroke, during one of Philadelphia's many unseasonable heat waves. The city was so enervated that the press was two days late in printing the death notice. No one but the neighbors paid any attention to the inconspicuous paragraphs. When the will was probated a few days later, however, all Philadelphia took notice. The weather still was oppressive in the city and throughout the East, but there was no dearth of news; the fillip of announcing a milliondollar bequest to the citizens spurred the newspapers to a real effort. Jefferson Davis lay stricken in Paris. Motley, the historian, was making conciliatory speeches in England. A merchant desired the services of a young man "unacquainted with city vices." At Homestead in Western Pennsylvania Andrew Carnegie had just entered into a partnership agreement for the expansion of his steel business, and was taken up only in making money, not in spending it. The will, which spread over two columns of the paper, received favorable comment on all sides. The building was to be the property of the Library Company of Philadelphia, to be known as the Ridgway Branch, in honor of Phoebe Ann. The lot and the site were left to the discretion of the executor, the honorable Henry J. Williams. Within a month, the directors of the Library Company held their meeting to consider the bequest and to take proper action. There was a large attendance, as befitting the important occasion. In the chair was George Sharswood, later to be Chief Justice of the State Supreme Court. The secretary sat near-by with a stack of quills in readiness. Everybody was in the mood for an oratorical display in honor of the Rush beneficence. Peter M. McCall, an important lawyer of the day, was the first to speak; his words sounded a discordant note. "It is true," he said, "that the location of the site rests with the Executor, but a conference with the Executor has indicated that, on his deathbed, Dr. Rush requested his brother-in-law to use a site at Broad and Christian Streets, which he had purchased shortly before his demise." Many of the directors had been apprised of the situation. Since the Christian Street site was far from the city's center, they felt that Williams would be amenable to reason—especially after so notable a committee had presented the Library Company's position to him. McCall's report was discouraging. Williams' answer had been brief, but emphatic. "Gentlemen, I wish to work with your Company in every way possible, if you will accept the terms of the legacy. If not, I will have to build the library on my own responsibility." In vain did the committee point out the remoteness of the site. "Dr. Rush picked that site," he had replied quietly, "and on his death-

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WHERE THERE'S A WILL bed, taking his hand from beneath the bed covers, he grasped my hand and said, 'I expect you to see that the building is erected t h e r e . ' " The dead hand seemed to hold too firmly. Full discretion was given in will and codicil to the Executor, but a deathbed instruction to the brother-in-law retracted this power. To a man of Williams' sensitivities, the dying wish was law, in spite of wills and codicils. The Library Company resounded with the deeply intoned suggestions of the town's lawyers and judges. There was no lack of legal counsel and advice. In fact, it looked like a bar reception for the judiciary. Judge Strong's opinion was read: he considered that the deathbed promise was not really binding upon the Executor. Judge Hare submitted the report of the special committee, composed of William Meredith, George W. Biddle, and Richard McMurtrie. This group advised the Library Company to postpone definite action for the present; to do nothing which might prevent the Company's future acceptance. Judge Hare had done a little figuring. After deducting the personal bequests and annuities from the million-odd estate, he was doubtful about the desirability of the legacy. Judge Cadwalader disagreed. He advised a prompt acceptance. Opinion was definitely divided. Judge Hare retired to do some further figuring, and came to the front with the admonition that the upkeep of such a building at so distant a spot might exceed the value of the legacy. This being the first meeting, nothing definite was decided. A committee was appointed to study the problem—a joint committee of six stockholders and six directors. After much study, and more legal opinion-finding, the committee made its report at the next meeting. The legacy, as embodied in the terms of the will, should be accepted. The Library Company would not necessarily have to use the Broad and Christian site. The last was given with the finality of the highest legal authority; it was indeed backed by more judges than ever sat in any court. Two weeks later the resolution was submitted to the stockholders. Theodore de Witt Cuyler closed the proceedings. He asserted that Philadelphia was the only city in the world in which a discussion could have arisen over the acceptance of such a bequest. "Let us accept promptly," he said, "and let us build a statue to the memory of Dr. Rush, for whose benevolence we are deeply indebted." After the acceptance had been ratified, the lawyers and judges of the Library Company went into many a comfortable conference over the affair. Their conferences with the Executor of the will and the recipient of the deathbed instructions, however, were entirely discomforting. In spite of urgings and promptings—guardedly, diplomatically —Henry J. Williams, Esquire, remained adamant. He was deaf to the plea of expediency. He regretted, but he was

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bound. His moral position was buttressed by the advice of his associate, William F. Judson. Sturdier, if less experienced backing, came from Judson's assistant. The Library Company finally decided to take drastic steps. After checking and rechecking their legal position, the directors filed a bill in equity to oust the Executor in order to build the Library upon a location that accorded with their own ideas. The legal basis for the bill was solid, vouched for by precedent and personal opinion. Inasmuch as Williams felt bound by a deathbed promise—which meant nothing in the law—he could not use a clear and unbiased judgment in the selection of a site. In the conflict between the clear provisions of the will and codicils—made by a man of good health and clear mind, and according to law—and a deathbed request made by a man of unsound health and clouded mind, the first must prevail. It seemed clear enough. The bill was filed and an answer was made thereto—a long answer, carefully drawn, to which not much attention was paid at the time. In due course, the case was referred to an examiner. After he had filed his report, the facts were laid before P. Pemberton Morris, an able lawyer, who had been appointed a special master. The Master's finding was: . . . the will was not affected by the promise; that the trustee, by his promise, has so crippled his discretion as to make it impossible to say how much his preference for the lot in question is due to his unbiased opinion that it is the most expedient for the purpose and how much to his promise to Dr. Rush; that his action in the premises must therefore be under direction of the Court. In view of this, he concluded that the Library Company, having an interest in the selection of the fittest site, might properly ask that this selection be made under court supervision. He therefore recommended that the Executor be restrained by an injunction from erecting the building at Broad and Christian Streets, and that a special master be appointed to examine whether the proposed site was expedient, and, if not, to suggest a proper site. All of this seemed the acme of good sense. Judge Mercur wrote a long opinion in which he upheld the Master's conclusion. The newspapers applauded the decision as a "sensible way of preventing a legal monstrosity being foisted on the city." But Johnson was now of counsel, and was not crushed by the unanimity of lay opinion that it was a good thing to set aside the deathbed promise. Nor was he deterred by judicial corroboration. He carried the controversy into the State Supreme Court. He was flanked by George Junkin and former Chief Justice Woodward.

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The opposition had retained William Henry Rawle, Richard McMurtrie, and William M. Meredith, who had been Secretary of the Treasury under President Tyler, all men of mark and discernment. The odds seemed entirely against Williams. In addition to the weight of public opinion and the press, the findings of an examiner, the opinion of a master, and the decision of a chancery court were formidable obstacles. It was a scholastic contest, flavored with religion of the more bitter school. The arguments were markedly brilliant. McMurtrie stuck to the contention that had served him so well, and had been adopted by the court. The mind of the trustee, by reason of the promise, was under an unconscious constraint. This gave the Library Company less than they were entitled to under the law. Rawle glared at his adversaries and declared in a rasping voice that Williams' act was an illustration of the pernicious effects of the doctrine of Predestination and Election. Junkin was a devout Presbyterian defending a man who was a pillar of the Calvinistic church. His studied legal presence dissolved in righteous anger. Forgetting his associates, the judges, the other members of the opposition, and even the cause, he gave vent to a theological tirade that the bench endured, but discounted. This was the perfect ironic touch: the city's best legal minds arguing religion over the bones of a man who had died a proud atheist. At the close of the day, Chief Justice Read stretched his long body over the bench, and, bobbing his wig, pointed a bony finger at the excited counsel: "Tomorrow morning, Mr. Junkin, you must make an argument" In the heat of the battle, the attorneys for the Library Company, though admitting the excellent intentions of Henry Williams, had hinted broadly that the Executor was tarred by the same brush of eccentricity as the deceased Doctor. He was pictured as Don Quixote— a romantic knight who had attached undue importance to the utterances of a dying man. It was strongly urged that the entire contest would have been avoided had Williams been a more practical, or even a younger, man. There was more than a faint suggestion that senility had been added to eccentricity. The excitement of the argument seemed only to moderate any indignation that Johnson felt at these thrusts at his old friends. The issue was a purely technical one. Quietly, he took exception to the remarks disparaging his client. He praised Williams as an old and skilful lawyer, well informed of his duties; a gentleman of intelligence and refinement, of unblemished integrity and purity of character, with no selfish or hostile interests to serve. The buzz of conversation in the courtroom was stilled as he continued his portrayal of the Executor.

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The calmness of his tone contrasted with the emotional pitch of those who had preceded him, and added emphasis to his words. In the same effective manner, he took up the precise legal question that governed the case. His opponents had relied upon a famous English decision, known as the Duke of Portland's Case. The young lawyer quickly dealt several destructive blows at this ruling. Then he began a slow process of undermining the general ground upon which it seemed to rest. He outlined more than twenty cases to support his contention that no court of equity would entertain a bill to compel or control the exercise of a mere discretionary power. He had uncovered a few cracks in the opposing case, and under his hammering they began to widen into gaping holes. He spoke quietly, but clung to the main proposition and pursued this clue with a degree of legal knowledge and steadfastness which made an indelible impression on his colleagues. The questions from the bench only brought a reiteration of the fundamental point. The logic of the Library Company that had survived examiner, master, and lower court was entirely gutted when Johnson had finished. He cited textbooks and cases to show that Williams could not be removed unless there was evidence of incapacity, or that he was acting in fraud of his authority. He emphasized the good faith of the Executor and showed that he was not acting against the wishes of the deceased, but in accordance both with his will and his verbal direction. When the long hearing was ended, and the lawyers edged their way out of the packed courtroom, the consensus of opinion was: "Johnson made the best argument." He won the final decision, a five-to-two ruling of the highest court, which echoed the telling points he had made. The opinion went deeply into all questions, and planted itself upon the integrity of Williams, and his good faith in exercising the discretion given to him. The Doric temple was built at a cost of $850,000 and conveyed to the Library Company, and was known as the Ridgway Branch. And in their own apartment, furnished with pictures, tables, chairs, and other equipment from Rush Palace, rested the bones of the master and mistress of the house. There were other little odds and ends for Johnson to attend to throughout the years between the bequest and the opening of the granite-sheltered door. When the building was finished, the Library Company was coy about moving in, and Williams had to bring suit to get it started. At the time, and for many years, Johnson's victory seemed the triumph of morals over common sense. The Ridgway Branch was out of the range of busy Philadelphia. The long pilgrimage after needed information seemed a high price to pay for the expressed fears of Dr.

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WHERE THERE'S A WILL Rush that speculation and high property values might mar the usefulness of a central building. The less pretentious, but much loved, building of the Library Company proper was built in 1 8 8 0 at Juniper and Locust streets in the heart of the city. T h e directors and stockholders were gay with delight and approval. This was a proper site. But the crowds never flocked to the gray, gardened building on Locust Street; the loneliness and the silence were only slightly less oppressive than in the mausoleum at Broad and Christian. Sixty years later, higher taxes and assessments made it untenable, and it went the way of all landmarks—off with the wrecker—and the site became merely another parking lot. But the Ridgway Branch still stood, and there were modern, even current, books on its shelves. Possibly new trends in the city's growth might usher in a new period of usefulness. Johnson's victory in the select company which argued the fine points involved was a resounding one. It was coupled with other triumphs; fot the Bank of North America he won another notable case, and his name was bruited in the important offices of the commercial city with deep respect. His talent and energy were not to be confined merely to estate law, as rich and promising as the field seemed to be. But his position as attorney f o r a great trust company and his unequaled knowledge of this branch of the law increased the calls that came to him for advice and guidance. Soon the lawyers of the city could safely wager that in such litigation the young lawyer would have a hand. Or, as one legal wit put it, " W h e r e there's a will, there's J o h n s o n . "

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IX

The Panic of 1873 F ^ J ART Y in 1873 there came increasing signs of an upheaval that was to explode in the lawyer's backyard. In the Senate, Sumner, who was soon to cease from troubling, had voiced a scathing indictment of political abuses. " A terrible speech," Longfellow had termed it, "but the terror of it is in its truth." The Republic of 1865, roused to peak efficiency by the the war effort, had been a nation of farmers, city artisans, independent business men, small-scale manufacturers. Luxury was known to the few. Streams and waterfalls that later were to furnish the power to light cities, propel street cars, drive endless trains across the mountains, were running their useless courses to the sea. A few families controlled the great cotton and woolen mills of New England. In Western Pennsylvania, thousands of independent operators were drilling for oil, and more than two hundred companies were refining the product. Nearly four hundred and fifty operators were mining coal, as yet undisturbed by the railroads. On the banks of the Allegheny, pillars of smoke by day and fire by night rose from the score of forges that smelted the ore for the nation's industry. More than fifty companies worked the salt pits in Michigan's Saginaw Valley, and an equal number controlled the copper mines of that state; a hundred worked the Comstock Lode of Nevada. With enough unmined copper for half the world for generations, the United States was importing most of its supply. The corporation had made its appearance, but small-scale production prevailed in practically every field. Horse-drawn vans traversed the countryside of New England and the Middle States, leaving their bundles for farmers' wives and daughters. After the chickens were fed and the dishes washed, the women went to work on the straw plait for city hats, cut out garments for city clothing stores. Little shops in the rural towns of Massachusetts shod the nation. Neighborhood slaughter houses provided the cities' meat. But the speed-up born of war necessity was steadily increasing. Faster

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THE PANIC OF 1873

—bigger-combine—consolidate—spread out—take in more territory— broaden the scope of industry. Organization was under way. Scattered telegraph lines were merged into the Western Union Company, after a long and fierce contest. The salt merger was in progress, the trend toward railroad consolidation was materializing. There was a great awareness of the opportunities of the new order, even as great migrations moved westward toward the mines and farms across the Mississippi. A great age was dawning—a period of ruthlessness, of personal selfishness, of disregard for private rights, of contempt for law and legislatures; and yet of vast achievements. If the railroad nurtured promoters at public expense, it achieved safe, fast, comfortable travel for generations to come. Men and money, double-dealing and chicane would pass, but the mere toys of iron and wood stretched on to the coast. Old rails were to be ripped up, replaced with sturdier steel; four tracks laid where two had been before. Steel spans rose out of the wreckage of covered wooden bridges, the slow-puffing locomotives were pushed off the tracks by snorting demons of speed. Splendid new terminals were to take the place of dingy depots. A trip from New York to Chicago that had required fifty hours on eighteen different trains was to be converted by successive steps into a single run of sixteen hours. Efficiency and stability were to be associated with corporations which formerly could not meet their payrolls. The currents of Wall Street, upon which the stocks of these companies were to be tossed, were to run a bit more smoothly, and function more efficiently for capital needs. Violent storms were to become the exception rather than the rule on the little thoroughfare which runs from the hopeful spires of a church to the gutted headstones of a cemetery. The great fortunes of the rugged individualists, their coarseness and lavish splurging were to shrink in size and significance with the ephemeral character of a fee simple and the immutability of death and taxes. Sired by the railroad came the great industries of iron, coal, wool, leather, and shipping. Out in Ohio young Rockefeller had left the drygoods business and was deep in the deviousness of his South Improvement Company. A lively young telegrapher, Andy Carnegie, was beginning to devote some attention to iron-making and the more profitable sidelines of rail operation. No shingles swung, no merchandise was displayed, and no signs were painted over the doors, but Washington became the business center of the country. Iron, coal, wool, steel, and leather, railroads and ships, were the new lords of the land, and their agents were busily at work. Washington was an overgrown village, its avenues newly redeemed from mud, but it hummed with lobbyists and a building boom.

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Out in Duluth an enterprising business man was eyeing prospects in railroading with the scrutiny of a merchant and consumer. But in the East the dance was merry, and science and invention, consolidation and expansion, industry and progress, seemed to go forward hand in hand. The new facilities came to the middle classes; oil made its way through the wilderness, and new towns and cities sprang up. Only a few voices had been raised against the hazards to democracy in the alliance of industry and politics. From semi-retirement an exPresident had deplored the deterioration of public life. There could be little lure in public life for Johnson, who was keenly aware of trends and purposes. The current of national events was moving to a disastrous climax, and fortunes were soon to follow reputations into a black abyss. There was no time for loitering, or dallying in strange bypaths. His own city was striking out into metropolitan greatness. About him he felt the tremors of the industrial earthquake. Within a stone's throw of the lawyer's busy office the city was teeming with activity. The Philadelphia Saving Fund Society had sold its first office at 306 Walnut Street and its Third Street properties to Jay Cooke, and now, with its new building at the corner of Seventh and Walnut, it was an imposing neighbor. The banking operations of the Cooke organization were being pushed with redoubled vigor. The market in its seven percent bonds was firm, and in the cities of Europe, as well as of America, agents peddled the promises of the great Northwest equally with the debentures of Northern Pacific. At the great fair in Vienna, enormous scale models of the new road and the territories it fed showed the investors of the Old World the glories of the New. Between the Delaware and Schuylkill, the Quaker Town was breaking through the old borders. Over the Chestnut Street Bridge, the city dwellers crossed the Schuylkill into West Philadelphia. Factories, homes, churches, and schools sprang up. The central city had already begun to take on the appearance of a metropolis. The main streets—Market, Chestnut and Broad—were crowded with buildings and shops of substantial size. The population was nearing three-quarters of a million. The business district was gradually moving westward from Third Street. The Girard Trust had shifted its headquarters to Seventh and Chestnut, a radical step, while, under the advice of counselor Johnson, the Pennsylvania Company purchased a site opposite the Custom House for a new home. It had gained new powers under charter amendments presented to the Legislature by him. Philadelphia's port was showing new life; China trade was looking up again. The barque Gemini had arrived from Foochow with the first direct importation of tea since the days of Stephen Girard. The concern over Dr. Rush's library bequest, and the new Academy of Fine Arts on Broad Street, attested the broader interest of a few hardy spirits.

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Bustling men of business had little time to read anything longer than a bill of sale or listen to anything less pertinent than a big proposition. Johnson seemed to be wasting his superior assets of mind and body on a stodgy trail, while others made a direct bid for the wealth so accessible to the young and strong; but already the lawyer was waiting at the end of a turn for those who were racing toward him. The impact of the forces which were transforming America struck with full blast the wiry, solemn-eyed counsel of the Pennsylvania Company. The influx of big industries was making Philadelphia one of the country's leading trade centers. Cramp's Shipbuilding Company and the Baldwin Locomotive Works had put the city in the vanguard. Backed by Anthony Drexel, George W. Childs had acquired the Public Ledger, and built the new home of the newspaper at Sixth and Chestnut streets. New territories in the West, the opening of new highways, railroads, street lines, new industries in the North, new docks for the rapidly growing merchant marine—all these things were making demands on the capacity of the city, were taxing the ability of the city's leading trust company. It alone could cope with the intricacies of the new era. The old, proven legal forms did not suffice. Intricate trust forms, corporate covenants and indentures to make possible the quick amassing of capital, non-aggression pacts for the untamed demon of oil and the conquering iron horse, franchises and power grants for lines overrunning old turnpikes and canals, shock absorbers for the clash of aggressive private interests with city, state, and community—all required more than a knowledge of legal precedents. The routine of law and business office was undergoing change too, keeping pace with new forms of heating, lighting, communication, the growth of the telegraph, getting ready for the advent of the telephone, the introduction of the typewriter. Johnson seemed to take the problems a9 they came. The law had to keep step with the mechanical and scientific geniu9 of a McCormick, an Edison, and a Bell. To him it was a flexible mechanism for regulating the new forces of a new society. The legal instruments that he devised, based on a knowledge of common and statute law not limited to his own jurisdiction, met the scrutiny of the highest courts. In his own cases he urged the wider rule and the broader interpretation—the concept of the law as unbending in applying the broad principles of equity, but readily adaptable to special facts and new conditions. The continuity of the demands upon him, the daily procession of clients, lawyers, and trust officials, provided the finest schooling, keeping him abreast of finance and industry. The issues covered every field of law, and because the age of specialization had not yet arrived, this meant work in the courtroom as well as the consulting office. Yet all the while he was attending to the demands of a general prac-

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JOHN G. JOHNSON tice, taking the simple cases of humble people who came to h i m attracted by an already fabulous repute of his powers, his rugged forthrightness, his decisive action in the office, and his amazing vigor in a fight. " A steam engine in t r o u s e r s , " some described him. J u s t turned thirty, and with an income that accumulated steadily, the young lawyer was the target of both well-meaning and unscrupulous promoters of that boom period. Sure-fire projects and ground-floor propositions were urged alluringly upon the barrister, whose b a n k balances seemed to cry out f o r profitable investment. B u t the eyes of the young man glinted hard at the first hint of bonanza prospects, and with a few sharp phrases the talk was guided back to the law, or the visitor was escorted to the open door. Quickly the fevered world of finance and industry understood that J o h n s o n avoided every financial entanglement. He intended to earn his way by the arduous labors to which he had given his best years. Nor would he b e diverted by enticing ventures that would waste his energy and distort his judgment. Withal the temptation was not g r e a t ; he was too absorbed in his own work. But without swerving f r o m the narrow line of legal adviser, he yet counseled many of his own clients against the p r o j e c t s that loomed so invitingly as business and the market zoomed upward. Particularly he cautioned the directors of the many businesses and financial institutions he represented, and threw the weight of his own advices against involvement in the eddies of speculation. At the b o a r d meetings of the Pennsylvania Company he sided with the conservative group, urging preparedness f o r the day when the tides of inflation would recede. Apart from his work J o h n s o n had little time to meditate on the trends that were remaking society in his city and throughout the country, the historic processes which were welding the scattered production into giant units. T h e strictly legal aspects of the fast game absorbed his full attention. He could not pause overlong to weigh and consider motives, or to question the final direction. The Grant Administration took on a new lease when, in P h i l a d e l p h i a ' s Academy of Music, crowded to capacity, the smooth-functioning Republican machine rolled in his renomination. On September 18, 1 8 7 3 , as President Grant breakfasted at Cooke's summer home at Ogontz, ten miles north of the city, the P h i l a d e l p h i a banking house closed its doors. T h i s was the end of an era. W i t h i n a few months the F r a n k l i n Savings F u n d shut down, taking with it the earnings of Philadelphia's workingmen. P a n i c swept the country, a convulsion that to all and sundry seemed inexplicable. It was to usher in long years of depression. Commercial houses, big and little, went out b y the thousands. Fortunes vanished, rent and sale signs decorated ornate mansions, but the workers were hardest hit. In the year of panic n e a r l y h a l f the

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THE PANIC OF 1873 steel plants of the country closed down, rail-laying was suspended, shipping went off. T h e r e was no dole, no organized relief. In the industrial communities cold and hunger ran their courses. T h e Irish workers who had built half the first railway that spanned the country were heading once m o r e toward the Emerald Isle. T h e Germans who had fled Prussian tyranny were turning homeward from the collapse of the new world and e c o n o m i c misery far worse. T h e country was prostrate and looked helplessly at the new outrages in Cuba. In P h i l a d e l p h i a the appropriations wrung f r o m Councils by M a y o r V a u x , and the work of private charities, mitigated somewhat the ultimate miseries of those years. But no one was untouched. Gaunt men and women and pinched children begged food f r o m door to door. T h e old and the sick, the young and strong, died of damp and cold and starvation. J o h n s o n ' s intuitive caution was vindicated. T h e weeks of panic had brought up new problems. Clients were in the throes of disaster, and a hundred calls for help of every sort c a m e to him. Boards of directors met at all hours, and he rushed from meeting to meeting to counsel and advise upon the acute difficulties of a financial crisis. T h e Pennsylvania Company reaped the benefits of its own wisdom and the guarded advices of its young solicitor. Its independence and liquidity made it a h a r b o r of safety in an angry sea. B u t new responsibilities now rested upon it. B a n k s and business houses looked to it f o r help and guidance. E a c h appeal had to be weighed carefully in the balance of public, as well as private, interest. S o m e distress signals had to be ignored; in other cases rescue parties had to be organized carefully. T h e r e were hurried conferences and midnight sessions around the long tabic that lasted well into the morning. J o h n s o n worked side by side with bankers and officials. Always he was careful to emphasize the legal phases. Y e t the reliance upon his sound judgment grew steadily, and his repute among busy men of aff a i r s became a tested confidence. D u r i n g all this period he was constantly in active contact with the Bullitt office, which was handling the Cooke reorganization. T h e business stagnation, the failure of many clients, had other repercussions in his own life. Brother Alfred lost his j o b , and the little grocery business which W i l l i a m had started went down with many a bigger house. T h e variety of his practice produced yet another result. Hundreds of mortgage foreclosures were turned over to him, and the resultant fees were not inconsiderable. At the same time, his rapid advancement was b r i n g i n g many new faces into the office. B u t progress kept a foothold even in the darkest hours. Science and invention plodded on to lift the pall of panic. New comforts came to

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those who managed to survive. The railroads carried the products of the farm to the back streets of the city, the output of the city mills to the farms. Even luxuries were seeping through. Philadelphia had a new hopefulness; it knew the paradox of a building boom in the midst of financial chaos. The carriages which clattered over the cobbles of Market Street added a cosmopolitan atmosphere. While Third and Fourth streets were convulsed with fear, the mayor was dedicating a new Masonic Temple at Broad and Filbert. In the gloom of that year the new bridge over the Schuylkill at Girard Avenue was opened up with ceremonies that attracted worldwide attention, and ground was broken in Fairmount Park for the Centennial Exposition commemorating one hundred years of independence. From the windows of his bachelor quarters fronting Penn Square, lawyer Johnson could see the preparations that were being made for the erection of the new City Hall. Laborers were demolishing the waterworks; surveyors were running their lines, and engineers were prying deep into the earth to lay the foundations of the great structure with its tower to be topped by William Penn. These were the first signs that the worst of the financial storm had passed, and a gentle reminder to Johnson that he had better find more quiet rooms. By and large the barrister, who was interested only in the fine points of the law and legal practice, had done right well for himself. Gradually he was building up a snug fortune, while most business men were losing theirs, and even the most pushing were glad to hold on to what they had.

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Marriage

T

J . HE Pennsylvania Company's counsel was a self-sufficient and discreet young man. He seemed to need no bosom friends. He had no hobbies, no recreations aside from an occasional baseball game or a rare hand at poker. He had no obvious vices. He needed substantial food in suitable quantities, but he could go without if the press of work demanded, and he wasted little time in sleeping. He neither drank nor smoked. At the banquets of the directors and officers of the prosperous Pennsylvania Company, their friends, and best customers, with the table piled high with every dainty in and out of season, with vintage wines and rare liqueurs, a huge pitcher of lemonade for the chief counsel was an early and standing order. When time and mood permitted, and the need became urgent, he bought his clothes—excellent fabrics, quickly chosen, and indifferently worn. The big front room on Penn Square where he slept in bachelor solitude was as sparsely furnished as his office. About this time he began to find a quiet pleasure in looking at pictures, but that took virtually no time, effort, or entangling contact. Also, his esthetic appreciation of the season's fashions as they promenaded Chestnut Street needed no assistance. The technicalities, inventions, adaptations, and applications of the law were meat and drink to him. The routine of his life—consultation, courtroom battle, conference—this was the rhythm which carried him swiftly f r o m day to day: progress, success, victory. Johnson's life could have been very different. He was just past thirty, and handsome in a leonine sort of way—a little too tall, his head a little too big and shaggy, the skin stretched too tightly over his exaggerated cheek bones. But his shoulders were broad enough to balance the height, and his slim strength gave him a grace that not even his careless clothes could disguise. His mouth was firm, but not rigid, and his penetrating blue eyes could dance with humor, and kept a glow of kindliness under stress and in relaxation. As chief counsel of the leading trust company he had entrée to the innermost circle of the bar, and, if

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he wished, to the more carefully guarded social circle which converged. His practice provided him with a generous income. He found great pleasure in supporting the mother who had worked so hard to help him. He saw brother William through many of the crises which hound the struggling business man, and saw that serious, plodding brother Alfred was snugly placed. Still he might have squired the season's most exciting débutantes. But possibly when this serious young man with an old man's responsibilities was confronted with their chic, well-tutored charm, he found himself for once at a loss, and his quiet, contemplative humor futile. Johnson's pattern, if homespun, was original. The prescribed course for a man of his position was clear. The old furniture of his office would not do. Heavy mahogany with leather seats, an antique or two—possibly Chinese or Indian—oil paintings to replace the steel engravings on the wall, was the requisite setting for his success. And the carpet on the floor should heighten the impression of opulence with each step the client sank. There was vast room for improvement in the spartan lines of his Penn Square room. His clothes should have been made by Walnut Street's best tailor, of imported English worsted. His shirts should have been chosen in the same way. And in the routine of his crowded day messages from Third and Fourth Street banks and business houses should be spiced by notes of another sort. His evenings should have been flavored with the latest perfume, gowns straight from Paris, the best scotch and soda, and the music of the hour. That is the way it was done all about him in those early days of the Seventies; but the habit of work had too great a hold. He saw life as a contest—an unending series of contests; not a spectacle to be enjoyed or a playground for gay promenade. The young women he met through clients and colleagues could not have attracted him seriously. Their gaiety, their innocence of struggle and ambition made them unreal. They appealed to Johnson as pictures appealed to him. Already he was older than his years. The days and months passed with terrifying swiftness. Ahead of him the years stretched through a long panorama of courtroom battle and office perplexity. In a not distant day he would wake up to find the life he worked so cleverly to smooth for others had passed him by, his search for romance lost in moldy opinions born of the grave. Many a young matron cast an appraising eye over him as a prospect for sister or unattached friend, and pictured the possibilities of this undeniably attractive barrister. But she would be discouraged by her knowing husband. How find a life-partner for a legal drudge—unawed by the conventions as duly set forth in Godey's Lady's Book, with no definite niche in the social scheme, and no desire to find one!

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There was thus a delicate irony, an eminent fitness and a certain inevitability in the Johnson romance. The law—that jealous mistress that had taken care to thwart all rivals—herself found a mate for her favorite. For Ida Powel Morrell was a client, or at the beginning rather a folder in the files. Certainly the lawyer's luck held. Back in 1871 young Edward Morrell, the eldest son of Dr. Robert Morrell and Louise de Tousard Morrell, died, after a brilliant business and social career. His marriage to Ida Powel, daughter of John Hare Powel, had been a gala event. On her father's side she could trace her lineage to the Hare-Powel-Willing families, whose contribution to the story of Philadelphia and the Republic was noteworthy. On the maternal side was kinship with the oldest names of New York: Van Courtland, Schuyler, Beekman; and with de Veaux of South Carolina, old French Huguenot stock. Born in Paris during one of the visits of her parents to that city, she had spent her first years at Powelton, the family estate in West Philadelphia. Later her father moved to Newport where he set up in business, and, following the family tradition, was elected mayor. During the latter part of his life he became an invalid as the result of an accident, and his daughter spent her time nursing him. With such responsibility, her natural beauty took on an early maturity, which set her apart from the girls of her set. The sympathy and selflessness she learned in caring for her father, she carried as a dowry to her husband. The union was completely happy. The young husband was an ardent business man. His company, Cambria Steel, was keeping pace with the rapid industrialization that marked the opening years of the war decade. Throughout those years of national strife, the young couple progressed calmly, the unfortunate storm kept safely away from the hearth. The arrival of three children perfected their marriage. With the end of the war, the industrial speed-up demanded more effort, more daring, more enterprise. Young Morrell did not lag behind. He was no gambler, but opportunity seemed never to travel without success in those days, and husbands and fathers thought in terms of dynasties. The city was acutely conscious of Cuba Libre in those days, and of possibilities for profitable ventures in that island. A series of unfortunate investments in Cuba sugar plantations undermined the young husband's financial position. They also wrecked his health, which never had matched his ambition; his natural seriousness was a further affliction. The thought that he had squandered the money he accumulated for his family was more than he could bear. Other men, who lost overnight the fortunes of a lifetime, kicked themselves for fools or idiots and started all over. Morrell was too sensitive and conscientious. He brooded through the spring; his illness became grave in the long, hot summer. He died in September. To keep up the large house at the city's northern edge on the widow's

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vanishing income was impossible. She moved her little family into modest quarters out in West Philadelphia, then a long distance from the center of town. Even in his darkest days, Morrell had thought it was only disaster hounding him, not death. It had not occurred to him to make a will. His affairs, once so neatly arranged, were left in chaos. Ida's family urged her to return to the family mansion in Newport, and prudence suggested this as the only course. But here were her friends, and the memories of her happiness. She would make an effort to keep her home and children here. She knew nothing about business or law, and an expert on both subjects was needed to salvage something out of Morrell's estate. Her husband's brother, Charles Morrell, came to her aid. He helped her follow the trail to possible assets. There were, among other things, a few shares of a pressed brick company in Chicago, a note of indebtedness from a Baltimore firm, and a faint hope for Cuba sugar returns. In the course of this work it was inevitable for Charles Morrell to consult Johnson: he had the best knowledge of estate law in town, his connections in distant cities were excellent, and he was counsel for the Pennsylvania Company, which had taken out letters to administer the estate. The brother-in-law carried on as far as he could, then turned the matter over to the widow, with a card of introduction to Johnson. It was a long ride from West Philadelphia to the center of town. In order to catch the busy lawyer at a convenient time, Mrs. Morrell had to make the first train. This meant a harried early morning, before daylight, helping the maid of all work get three small children organized for the day. By the time she had made the trip in, with the puffing old locomotive stopping every third length of its awkward bulk to pick up commuters, she might have been dismayed. The young matron was not given to such indulgences. She no doubt was a bit more dusty than she cared to be, but her taxed nerves were outwardly calm. In spite of the long walk from the station, her poise was a match for Johnson's. She waited patiently in the bare outer room, futilely studying the handful of certificates in an effort to remain unobtrusive in the crowd. The motley parade of clients glanced at her as they came in and out of the other room. The minutes dragged on. She wondered how the children were making out. She could not make the train home she had planned. When it finally was her turn, she had all but lost her determination to pursue the matter further. The man behind the oak desk piled with papers looked too engrossed in his own problems to bother about her little affairs. His shaggy head bent over the fine writing looked strong, but not encouraging. With barely a glance he asked her to sit down. But the smile in the wide-set eyes was so kind that she dropped the papers on his desk with an exclamation of relief. He listened gravely while she explained

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the problem, nodded his head in understanding, and looked carefully through the little bundle. He said very little, but she felt herself relaxing as she watched his eyes dart expertly through the certificates. "The Company will take the necessary steps," he assured her. "There is nothing else for you to worry about. I'll see what can be done in Baltimore right a w a y . " He walked to the door with her. "You have three children," he said. "It probably isn't easy for you to get into town; I'll see that all papers for your attention are sent to your home." It took a long time to settle the estate of Edward Morrell, and even the diligence of Johnson could save little from the wreckage of a good man's dream. The messages that he had to send the young widow were uniformly discouraging. But she refused to be downcast or bitter. Her courage and sense of humor stayed with her through the lowest moments. She referred light-heartedly to the "estate," and was undismayed by its vanishing proportions. Occasionally it was necessary for her to return to the office in spite of her attorney's considerateness. He found himself looking forward to these visits. On a late November evening John sat at his desk with a new list from the Orphans' Court in his hand. On it was scheduled a hearing for one of the minor phases in the Morrell estate. It was quite routine, but accompanied, none the less, by necessary detail. There were papers to be filled out. The afternoon had been crowded with courtroom wrangles, and the e a r l y evening hurried with consultations. Beside the list an urgent rule and affidavit clamored for attention. Papers for other cases coming up on the morrow pushed his elbow. Four hours of work demanded his concentration. The dinner hour had passed. The dusk of early fall had long been blacked out by the deep night. A gentle rustle penetrated the window pane as the leaves swirled out of the square, and a premonitory snowflake floated before the flickering gas lamp. There was only one course for Johnson in such an emergency. He put on his greatcoat and went out into the cold air. There were no more trains, so he walked out to West Philadelphia. That was the first of a chain of visits which became successively more urgent. The Morrell estate was a minor case in the dockets of the l a w y e r ; but the Morrell widow became the most difficult suit of his brilliant career. Certainly she was not a woman to succumb to a burst of gratitude and a fear of being alone. Her heart was not easily to be turned from the memory of her husband. She had accepted widowhood as permanent and had become conditioned to it. Alone, a woman in her early thirties might find an interest to supplant the happiness she h a d lost; but she had three children. Their future was the center of all thought. She was still young enough

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to dream of one who would sweep away the veil of worry and occasional loneliness, but the background of three children made her dismiss the thought. She was really quite content with her life. Her means were small, but they would stretch far enough for simple comfort. Her children were growing. Edward, quick and serious like his father, was nearly ten. Ida was twelve, and Julia, the youngest, was already serenely selfreliant. All were well mannered and returned her own deep affection. She must not contemplate any rash step. Young Johnson was a brilliant young man certainly, with a splendid reputation. But he was different from the sort of men she had known. His depth, his alternate seriousness and robust humor made him seem so uncertain. And she had been brought up in the school that knew everyone's grandmother. His background faded elusively into the distance of Chestnut Hill. But that was not irremediable, for the same tradition recognized the real measure of a man. The lawyer pressed his suit diligently. He was patient and sympathetic. He did not believe in impossibilities. His training had reduced everything to the common denominator of hard work plus tenacity. And Johnson had been trained for this task too. The early days in the Rush office when a visit to the family legal center became a holiday occasion for the youngsters—because of the overgrown "office boy"—were relived. He sensed his lady's fears, knew the difficulties that lay ahead of him, and he laid suit to the children as well as to their mother. Because he loved children with the intensity of one whose own childhood had been all too short and grim, the role was entirely in character. If his increasingly frequent visits were somewhat disturbing to the young widow, they became the event—or events—of the week to the children. The steady stream of dainties that came into the little home, and into the eager hands of the children—the special French bonbons and the candied fruits—and most of all his own playful exuberance, added a gentle but irresistible pressure. Soon Ida Powel was embarrassed by her son's inquiry: "Is Mr. Johnson coming this evening?" The couple were quietly married on July 15, 1875, at All Saints' Chapel, Newport, by Rev. Alexander Mercer, former rector of Trinity Church. There is some indication that the scrivener's good, round hand had already been lost in an indecipherable scrawl. From the records of the Church, the newspapers carried the notice of the marriage of "James" G. Johnson. He fitted his new family into the routine of his life, and himself into the role of pater familias. They moved to a big house at 426 South Broad Street, which was just a fifteen-minute walk from his office. The home was large and reflected his wife's excellent but simple taste. She resumed the social position that was hers by right of background and personality, and a place second only to the legal deity that de-

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MARRIAGE manded so much of her husband. There is no evidence that she sought to lure him f r o m his course, or chafed at the unbending demands of his office. T h e removal of J o h n J o h n s o n f r o m bachelor diggings to his new town house m a d e strikingly little change in his outlook. The p r o g r a m of his precise household was designed to meet his needs. He left at an early h o u r — u s u a l l y by eight o'clock—and arrived for a late dinner; but he was seldom off schedule, and due notice of any deviation was given b e f o r e h a n d — b y special messenger and later by telephone. The briefs and court records he used to pore over at his office f a r into the night, however, he now brought home with him in his faded green bag. Unless the case was current, and of general interest, work was never mentioned. Dinner was always a festive occasion, untouched by the pressure of the office. This new life was kept completely apart f r o m the life he had built up in the professional world. The most intimate of associates or clients rarely penetrated that barrier. But long after his wife and children were sleeping, the lawyer was at work in his library. The social a f f a i r s over which his wife presided were seldom attended by him. Frequently, on his return f r o m his office, he dodged the gathering in the d r a w i n g room, and stole upstairs by the rear entrance. F o r his family alone, however, he m a n a g e d to find time for many things. The year following his m a r r i a g e was the Centennial of the Republic. Philadelphia was a constant whirl of festivities, which started on New Y e a r ' s Eve. A s the old year dwindled, the preparations for welcoming the Centennial year were felt throughout the city, ablaze with lights. Over Carpenters' H a l l the sign, " T h e Nation's Birthplace," was lighted by hundreds of candles. T h e District Attorney's office was making preparations of another sort, readying its facilities for handling inhospitable natives and unwelcome visitors. " S h e p p a r d ' s R a i l r o a d , " it came to be called, f r o m the dispatch with which justice was meted out on the Centennial Grounds. Festivities extended f r o m South Street to Girard Avenue; f r o m the Delaware to the Schuylkill. Southwark offered a brilliant display of fireworks. As midnight a p p r o a c h e d , the Exposition was formally opened in Independence H a l l . B e n j a m i n Harris Brewster talked about the wonders to be unfolded, and the bell in the Hall tolled the departing year. The f a n f a r e was not calculated to keep Johnson away f r o m his desk, but it was the sort of thing a young woman and all her friends were seeing, so no doubt he saw it too. And the marvels of science and civilization as d i s p l a y e d in F a i r m o u n t Park were a " m u s t " for the children, if not f o r their busy father. President Grant and his wife, a n d Dom P e d r o de Alcantara and his

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wife—Emperor and Empress of Brazil—were guests of honor. The dedication services were held in the clearing between the Main Building and Memorial Hall, two of 180 buildings erected just for this occasion. A 200-piece orchestra unfurled the flag, coming to an abrupt and inspiring silence for the salute of 100 guns. After this, the President and Dom Pedro started the mammoth Corliss engine in Machinery Hall, then hurried off to a reception given for them in the Judges' Pavilion. There were many other personages and special events—the rival candidates for the Presidency, Governor Tilden on Empire State Day, and Rutherford Hayes on Ohio Day. And other things of almost equal interest—McCormick's new reaper that was to make history and many fortunes, and Alexander Bell's first model of the telephone, actually working for Dom Pedro and the world to marvel at. There was also on display a curious machine that wrote more clearly than the best scrivener. The West Point cadets arrived in a body, South America sent a wonder world of plants and flowers. But if there came a day when the Johnsons had planned an outing and John could not make it at the last moment, because of a prolonged court battle or a client's emergency, there were no audible reverberations. In the tradition of the family handed down from daughter to her own son, the Johnson ménage rested on the solid basis of mutual admiration between husband and wife. In her continuing belief that the lawyer was the most wonderful man in the world, Mrs. Johnson merely shared the opinion of many of her townsfolk. The marriage to a woman of top social rank might have been the last touch in the transformation of the lowly blacksmith's son to John Graver Johnson, leading citizen of a great city. But he never bothered to exhibit this picture. He remained singularly untouched by a narrower ambition. There was no change of conduct; his old friends held their place, his ideals suffered no eclipse. His working habits were not relaxed, there was no departure from a simple and kindly outlook. There was no adopted elegance, no mercenary awareness, no hesitation between divergent social aims, no desire to barter the success of the courtroom for the triumphs of the drawing room. He was still the same. His mother found a sincere welcome in his home. Every Friday she either dined with the young Johnsons or entertained her son in her own home. If something interfered with this rite, a special messenger was dispatched. But such interferences were rare. The sight of the lawyer walking two miles up Broad Street on alternate Friday evenings became a familiar one to the residents of that thoroughfare. Many could not resist a glance at their watches as he passed. Things were going smoothly for the family. Alfred was now steadily employed as a bookkeeper, and the volatile William was doing well as

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MARRIAGE a salesman, but dreaming of better things. Elizabeth J o h n s o n was f r e e to bask in the glow of her b r i l l i a n t son's success. T h e Graver pride and independence permitted little more. T h e glow of his success was the only part of his work he permitted his f a m i l y to share. T h e h a r m o n y and j o y of his household were not to be subjected to the tension of the professional round. Never was a m e m b e r of his family permitted to hear him argue a case. He was t o o aware of the wrenching emotions in this aspect of the p r o f e s s i o n — t h e passion of battle, the flush of victory, the c h a g r i n at defeat. P e r h a p s he did not want his family to know the austere advocate of the courtroom. On the other hand, few friends ever knew the r o l l i c k i n g husband and father, gentle and considerate, j o l l y and boisterous. T o a l l but the most intimate, his conversation with his wife at home, or on the telephone, was so saccharine as to cloy. In his home he was father, and the children were son and daughters. T h e word " s t e p c h i l d " was never used, except at the one time it b e c a m e legally necessary. His letters to Edward M o r r e l l always began " D e a r S o n , " and the boy always wrote to him, " D e a r e s t D a d , " and later, " M y D e a r Old M a n . " He was proud of his son, and c a r e f u l l y supervised his education. T h e training of his daughters was given equal c a r e and interest as they prepared to go forth into a larger world. At all times he seemed to resent c a l l s that infringed on the time allotted to his home. F o r years he refused to go to W a s h i n g t o n to argue his cases, shunting them to the shoulders of F r a n k P r i c h a r d , when the latter became associated with him. In fact, when compelled to leave the city, he almost invariably returned the same day. Y e t day by day Johnson was writing legal h i s t o r y — a diary of great causes, substantial issues; purely technical questions, trials b e f o r e juries, mere motions and rules; p r e l i m i n a r y s p a r r i n g , and final clashes. Sometimes the amounts involved were l a r g e ; frequently s m a l l , and at time9 trivial. J o h n s o n ' s position might be so clear that the dullest laym a n could shake his head in a g r e e m e n t ; sometimes it was a duel of wits over a point so fine as to amuse or bemuse the legal f r a t e r n i t y . T h e tempo of his work paced the tempo of the growing c i t y . I n the s m a l l orbit of home, office, c o u r t r o o m , he could watch the course of development. Y o u n g W a n a m a k e r ' s store grew into an e m p o r i u m , the festivities in F a i r m o u n t P a r k attracted m a n y city dwellers to new residential projects, and the exhibits on display there meant a revolution in industrial and f a r m progress. T h e years that lay immediately a h e a d were g r i m with f o r e b o d i n g and disaster. It was a decade of none t o o much sensibility. J o h n s o n , always busy with the p r o b l e m s at hand, f o u n d a new awareness o f the ferment

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about him. The plunder of a great city, scandals from the gay of the capital, famine and unrest in Europe, the first shadows of depression; these would affect his children now absorbed in their in his home. From his home, and the solid satisfaction of his hearth, the lawyer drew renewed energy and inspiration to cope with the problems that now awaited him at his desk.

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streets a new books young many

XI

For Lawyers Only B y THE end of the sixties Johnson was an established lawyer, and the new decade saw him matching the nation's stride—a thriving lawyer in a thriving city, his approach still simple enough to find time for the smallest case, his outlook mature enough to master the deepest legal problem. His work was confined to no special class of clients. The old records show the widest variety of business. Coupled with the utmost courtesy to his opponents was a devastating alertness. There are few records of opportunities overlooked, and many of brilliantly improvised performances. Many of the legends that grew up about him had no foundation in fact. The myth of his invincibility evaporates before the long array of cases that he lost. He lost often—as one who battles uncompromisingly had to lose. But the average of his successes was impressive, although the real force of his achievement was, from the beginning, and remained, in volume and scope. The spirit of combat that permeated these jousts of the courtroom is scarcely understandable today when the expedience of time and custom directs the lawyer to a speedy adjustment of most disputes. The cases he handled in these years reveal a keen eye for obscure legal points and a faculty for putting his finger* on any weakness in his opponent's position. Mr. Manderson seeks to have a case removed to the Federal Court because the plaintiff is a citizen of New York. Mr. Johnson points out that the defendant is a citizen of Pennsylvania, and hence is properly sued in his own forum. Mr. Sellers contends that an accommodation endorser is not liable to parties who have notice of the character of the endorsement. Mr. Johnson dissents and gains his point. The Hon. Wayne MacVeagh and George Tucker Bispham, Esquire, [101]

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maintain that a mortgage upon the defunct Bank of Brandywine is void, because of the constitutional provision against an increase of indebtedness. Judge Finletter agrees and awards an injunction. But Johnson thinks otherwise, and the Supreme Court says the last word in his favor. Johnson is pitted against the Brewsters, father and son, Francis E. and F. Carroll, and wins by an excellent point of pleading. Just past thirty, he was taken in as associate counsel by men twice his age. John Cadwalader, Jr., was happy to be with him in a difficult estate issue; John Samuel, George W. Thorn, William S. Price, Henry Hazelhurst, Samuel Dickson, and John C. Bullitt; John McMichael, B. W. Lacy, E. H. Weil, Chapman Biddle—in fact nearly every lawyer, consequent and inconsequent, was glad to avail himself of the formidable support of Johnson. The roster of attorneys associated with him is a roster of the bar of the day. Johnson preferred to fight alone. The sternest foes the bar might offer only spurred him to redouble his efforts, not to swell his ranks. He opposed Samuel Dickson, George Sergeant, George Junkin, Hampton Todd, the entire Brewster family, Richard McMurtrie, the Biddies and the Rawles, and the bar's latest prodigy, young Sulzberger; Theodore de Witt Cuyler, C. Stuart Patterson, E. Cooper Shapley, and Richard C. Dale. There was hardly an attorney in active practice who did not fight with or against Johnson. Many whom he bested were glad to work with him. A mere handful united fear of Johnson with dislike—and such sentiment was always amply reciprocated. The spirit that inspired the lawyers of these years to fierce combat survives only in towns and villages where a settled case is not yet considered a well-tried case. The grand show still goes on, with serious lawyers arguing at length abstruse points of special pleading and procedure over the disposition of three or thirty dollars. The attitude of the modern lawyer has changed with his clothes. Adjustment and compromise have come in as frock coats and striped trousers have gone out. The key to the change is only indirectly the speedier tempo of modern life. The real cause is the lack of audience. Without an admiring crowd the glory has departed from the Day in Court. The modern lawyer, except in the rare case of moment or of scandal, is an actor playing to an empty house. In those days every lawyer wanted to be heard when the lists were called. In the popular dramas of the Court Session, his public expected him to have a part. Business men flocked to see their favorites in action. Today, except for the few who specialize in murder, and in remote rural districts, the lawyer looks on his court visits as necessary interruptions to the real business of his office.

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Johnson was versatile as an actor as well as a legal authority. He might roar like a lion, or even, if the part demanded, indulge in an oratorical fling. Usually his forte was under-acting. He could fuse all his knowledge and power into a few minutes of forceful presentation, or sustain an air of suspense through hours of careful fact-pursuing. Any role he drew could be repeated a dozen times a day, and in the end he would be weary, but not exhausted. No one picture reflected the man. He was honest and sincere; he hated subterfuge. But he was also a skilled workman for hire. Widows came to him in despair, great industrialists sought his advice, and the clever promoter enlisted his wit. An interesting little case battled stubbornly before a jury tells the story of the oil boom. All classes of men were buying oil leaseholds and stocks. There had been failure, but disillusion had not yet invaded the prospector's paradise. A promoter was charged with selling eight hundred shares of stock for $4,000, with the promise that the stock would sell on the market for $7 a share within six months. The stock became worthless. In fact, it never brought a cent at either public or private sale. Johnson represented the claimant. The defense was that no money had been paid for the stock; it had been given as a bonus for services in selling to others. The trial judge made some cryptic remark as to the possibility of the claimant's ever having had $4,000. Johnson stormed an exception. He denounced this "usurpation by the judge of the functions of the jury." He challenged the right of the judge to comment on the evidence beyond definable limits as sweeping away the jury's freedom of decision. Johnson won his point: the case was remanded for a new trial. Finally, it was settled, but on what terms is unimportant in contrast to the picture the case gives of the speculative mania of the times. In an early case, his opponent brought suit on a Georgia judgment. Johnson successfully pushed the point that this judgment had no greater validity than in Georgia. Then he went on to show that under the Georgia law the defense which he had raised was permitted—thus traversing the sheriff's return. Said the court: "We give the judgment as much credit as Georgia—not more or less." The young lawyer's skill was exceeded only by his audacity. Where his client ran afoul of an act governing the erection of new buildings, he argued that the man simply was altering an old structure. The court viewed the facts differently. The judge said pointedly: "This is a colorable evasion of the building laws: it is an attempt to create new buildings within the purport of the act and against its provisions." Johnson was unabashed. He appealed the case to the State Supreme Court—and lost. He did, however, get a modified judgment, and onehalf of the appeal costs.

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One of his moot court cases brought its first dividend when a corner baker brought her problem to him. She had sold her business and had covenanted not to engage in similar trade, directly or indirectly, in the vicinity. On the contrary, she agreed to aid and encourage the business of her purchaser. The woman financed her son's bakery located within four miles of the old shop. When she found herself the defendant in a lawsuit, Johnson defended her, but, needless to say, without success. In another case his effort to construe a note given by a testator on his deathbed, without consideration, as a gift, was equally ineffective. He lost another technical argument when he sought to prove that an attachment in bankruptcy, originally defective, could not be amended. These precious pleadings were the mode of the day. In a small case of the late seventies, originally brought before a magistrate, we find Henry J . Williams and W. W. Montgomery hotly fighting the technical issue of whether a set-off, not pleaded at the outset, could be invoked in the Common Pleas Court. Johnson was confronted frequently with such defenses. In a foreclosure action, the sheriff, to advertise the sale of a vacant lot, posted his bills on an adjoining telegraph pole. Johnson's opponent argued that a stake should have been driven into the lot and the bills placed thereon. The court divided equally on this, and the sale was upheld. But the warning was clear; at all times the utmost care was essential. In a landlord and tenant case he was not so fortunate. His opponent, George Junkin, argued that his appeal should be struck off since no affidavit had been taken that it was not intended for delay. And struck off it was. A more important case involved the question of legal fees in estate cases. Was an executor entitled to five percent of an estate of $40,000, or merely to $500 for "the very slender services performed," according to the findings of the examiner? The matter was of special interest to Johnson. The opposition included a formidable array—Samuel Dickson, George Sergeant, and John C. Bullitt. The position of Johnson was simple, but firm. The responsibility of executorship itself entitled his client to two and one-half percent, and the additional two and one-half percent was his due for the ordinary trouble of administering an estate of less than $100,000. The case went to the highest court, but he was able to secure only a small additional allowance for his client. The principle remained unshaken—the amount of the fee depended solely upon the work done. Often he stretched legal remedies far beyond their usual application. On one occasion he went into a court of equity to obtain a receiver for Lady Patterson, as well as an accounting of her profits, and a decree for her sale. Lady Patterson was a race horse owned by two partners. The dispute raged over the respective rights of one of the partners [ 104]

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against the creditors of the other. It was complicated by an assignment —of uncertain date—of the interest of the second partner to the first. The legal remedy was drastic upon all the contested facts; a receiver was appointed for Lady Patterson. Not always was Johnson so successful in his broad application of the power of the equity courts. In a dispute between rival claimants of certain land, he went into equity on the basis that there was certain machinery and other personal property on the premises. He sought an injunction "to restrain the performance and continuance of acts contrary to law, prejudicial to the interests of the community and to the rights of individuals." This, of course, was the indirect recourse to equity to settle title to land. The court minced no words in its denunciation of the action as an "ejectment bill." However, this was not the last word on the general subject. In many later cases the lawyer went into the chancery court on the same general errand and, often as not, obtained the remedy he sought by his emphasis upon a special phase of the situation. Within a few years the cases, large and small, that gravitate to the office of the average practitioner were obscured by the press of more pertinent litigation. Soon the majority of suits were such as come to an outstanding figure—issues of public concern, fundamental causes bound up with the march of time. But through all these years the pattern of vast private matters, and the thread of estate and will cases never was lost; rarely was Johnson opposed by any but the city's best in these fields. Before he had been practising ten years he was so firmly entrenched that he acted for large groups where the choice of an attorney was made solely on the basis of merit and esteem. He handled such matters as the opening and paving of streets, the operations of turnpike companies, the issuance of improvement bonds by the city of Pittsburgh, the question of eminent domain in conjunction with the extension of railroad facilities beyond the city, and the problem of licenses for bus lines over the highways. His retention in some of these matters could be traced to a key post with a large trust company; in others it reflected only the force of a strong personality. The handling of so many cases had many unexpected results, and special problems. Once a judge suddenly asked him if he were not asserting a position precisely opposite to his argument in another case the previous week. Johnson smiled blandly: "Yes, your Honor, but surely I cannot be wrong in both cases." This little story was repeated over several decades without reference to the special cases from which it arose. However, the reverse of that situation peers out of the reports. In Mones Appeal, on January 24, 1879, he successfully argued in

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the Supreme Court that the purchaser of a property "under and subject to a mortgage" was not thereby made liable for the amount of the purchase money mortgage. On February 6, he was again in the Supreme Court—this time to sustain Judge Mitchell's ruling in the lower court that the "under and subject" clause raised the presumption of a promise to pay. A jury had brought in a verdict against the purchaser of the property on the ground that the presumption had not been rebutted. Johnson was trying to sustain this verdict in spite of his victory in Mone's Appeal the week previous. E. Cooper Shapley, on the other side, had an easier time of it. The inconsistency of Johnson's position was too much for the court, and Judge Mitchell was reversed. The lawyer's activity in corporate matters, estate problems, and municipal affairs was traceable only in part to his seat at the crossroads of litigation. Equally controlling was the confidence inspired by his superb work in court, and by his incisive manner in his office. John Ridgway, who represented the Girard Trust, did not hesitate to call upon him when a difficult legal suit had to be cracked. The patriarchal Biddle, aloof and cold, had sampled his help on one occasion and, finding it to his taste, quite lost his inhibitions. The junior counsel was now definitely senior in all but years. The effect of retaining Johnson was uniformly impressive. Whether he won or lost, the client felt that the utmost had been done in his behalf. There was neither stint nor reserve; there was no let-down, no pallid concessions by a faltering advocate. Never was a fact or legal principle stated simply as such. It was presented as a cardinal point about which the universe revolved. Nothing beyond that point was important; no one was permitted to think beyond the point he was hammering. But Johnson never lost himself in the role. He could switch in the midst of a scene. During one case, the plaintiff's testimony was most damaging to his own case, and was leading toward a non-suit. Johnson, on the other side, pretended to be dumbfounded. Masking his delight under an awkward glance of despair, he led the witness again and again over the same ground. When the point was beyond recall, he jumped up, and before his opponent had grasped the situation, he demanded and achieved a non-suit. Often Johnson confined his cross-examination to the repeated phrase: "Tell us some more about this." His quiet, almost hypnotic "Go on," became a password of the Bar. The irritations of the courtroom, the stupidity of witnesses, unreasonable interference from the other side, never disturbed his calm. Once he was acting for the heirs of a great estate against a large charitable bequest that lacked necessary witnesses. The testator had

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been chief justice of the state and the hearing room was packed with tense spectators. The lawyer's position was not an easy or popular one. In the midst of this proceeding, the white-haired widow who had taken the witness stand, suddenly accused Johnson of treachery. She declared that after he had been retained by her, he had gone over to the other side, and was now deliberately working against her interests. An embarrassing silence flooded the courtroom. Johnson was nonchalant. He said simply: "Tut, tut, Madam," and proceeded further with his examination. With the utmost patience he gradually cleared up the good lady's confusion and his own position. The Supreme Court paid many a compliment to Johnson's thoroughness. Sometimes its respects were slightly barbed. In an important case he lost to Bullitt and Dale, it noted: The question thus presented was twice argued by counsel of known ability who ransacked every corner of the instrument in the hope of finding something that would support their respective views, but the result was simply to prove . . . Frequently the highest court had to affirm its immunity against the Johnson insistence. In one instance he had won a daring point in the lower court by offering as evidence a book entry, "to repairing brick machine, $1932.76." The Justices frowned on this attempt with the terse statement: "There must be some limit to the amount the book entry can prove." In another case, however, he did succeed in obtaining the complete record of two years of corporate transactions by a single interrogatory instead of a bill for discovery. On the surface many of the questions involved might seem merely technical, but not infrequently they rested upon broad and fundamental issues. A spectacular duel over the Prospect Hill Estate of the Wistars was fought about the interpretation of a devise to "male issue." The argument began with a study of the words and phrases of musty estate precedents, but it ended in a grave consideration of public policy, with American institutions and customs, as well as cases, in sharp contrast to the English. Estate law runs unbroken through the whole pattern of Johnson's life. The construction of discretionary powers, the rights of life tenants and remainder men, the rule in Shelley's case, with its fifty-seven varieties, special trusts . . . for accumulation . . . and their legality, charges of undue influence, allocation of principal and income, questions of domicile and jurisdiction. From the earliest period he was meeting efforts to saddle trustees with liability for improper or un-

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fortunate investments; always he tried to keep clear the shadowy line that divides the former f r o m the latter. In one large estate, investment had been made in real estate in a section of the city then considered so remote as to have a "speculative or fluctuating character." In the late seventies this locale was the region 2500 North and 3000 West. Of special note in this battle was the super-effort put f o r t h by his opponents—the Brewsters and others— to defeat him. Apparently they considered it a Herculean feat, since they itemized seven (or nine) different grounds for surcharge, any one of which would have been sufficient. Technical trust questions make dry reading f o r the general practitioner, and by many the study of such cases would be viewed as a fitting penalty f o r misconduct. A Pennypacker might scoff at their import, and register the startling view that they determined merely the conflicting rights of property. But those to whom they might spell poverty or comfort or even affluence would beg to differ; the whole system of private property was also at stake. Johnson's work did not confine itself to contests between sons and daughters, relatives and strangers of the departed. The flow of moneys into community channels, the work of the Children's Hospital, the founding of the Roman Catholic High School—to name but two of many public charities and other institutions—hung upon the interpretation of clauses, p a r a g r a p h s , sentences, and even commas. Many such cases had to be taken to the highest courts for a definitive ruling, and all the lawyers who participated were engaged equally in the performance of public duty. Special cases stand out sui generis. Johnson brought suit on the bond of a notary who had issued a false certification, and sought to hold the bonding company liable for the loss resulting f r o m the forged signature. He appeared in a bitter family quarrel where the personal services of the son-in-law over a period of ten years were involved, and sought the basis of a new promise to pay in the moral obligation. He reversed an injunction against the F r a n k f o r d and Bristol Turnpike Company where it had to traverse private farms. Dissension in the ranks of stockholders and directors, interpretation of powers, reorganizations; taxes, equity, banks and building associations—to list the subjects of his work is to prepare a complete digest of the l a w ; to enumerate cases of piquant interest, or notable for law or fact, is to draw up a catalogue. Insurance battles, negligence actions, mechanics' liens, easements, bills and notes edged in with great contests involving vast industries and growing utilities. He spoke for the city in an early suit against the Gas Company, defeating F. Carroll Brewster and George W. Biddle so handily that thereafter important interests rushed to his office on the

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first sign of trouble. He challenged the specialists on their own ground. Dechert and McMurtrie were defeated decisively upon a difficult insurance problem in which Johnson established the leading principles governing the measure of damages. Henry Flanders, who wrote a book on admiralty law, was an opponent in a case that grew out of the collision of two steamships. Bispham, author of treatises on equity law, was thrown for a loss many times on his own ground. Johnson's briefs guided the court to stabilizing the negotiability of coupon bonds, and to a redefinition of the rights of minors in guardianship and trusteeship. The pertinacity with which all cases were fought was as striking as the names that stand out in the reports. They indicate the task of young Johnson on the road to leadership. Prichard and Sulzberger waged a hectic battle from the lowest to the highest court in a trivial dispute. George Baer and Effingham B. Morris, who later headed a great railroad and a large trust company, fought stoutly in the Common Pleas a fracas that today ends, if ever begun, in a magistrate's court. The combative spirit of the time explains partly Johnson's appearance in matters that contrast strangely with his representation of vast interests. There was also an unbending insistence that the only rule of practice was to serve impartially the poor as well as the rich, the weak and humble as well as the strong and powerful. This explains the bewildering variety as well as the number of his cases. Other men confined themselves to appellate tribunals; a few starred before juries; several were known as deft cross-examiners. Johnson never won fame as a master of any branch of the law; his was an all-round performance in every phase of office and courtroom work. The bar did not associate him with any single part of trial work. It did not class him as a great cross-examiner; most often his examination was limited to a few questions, and never more than were necessary to win his case. He did not bulldoze witnesses. Normally he was gentle, but he could be severe, and, in the words of one who frequently saw him in action, "God help the man who was lying." In one important case, an opponent related that Johnson asked only one question of the plaintiff. Suit had been brought by a promoter for more than half a million dollars for services alleged to have been performed in the reorganization of the Baldwin Locomotive Works. Johnson, representing the company, asked the plaintiff: "If this deal had fallen through, would you have been entitled to any compensation?" The man, a person of integrity, had to answer "No," and that ended his case. Sometimes his well-directed shots missed the mark. This was rarely, however, the fault of the aim, but rather of the weapon. He was so completely interested in his work that it never occurred to him to side-

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step a legal problem. Whether a hopeless client or a muddled lawyer came to his office, help was always given. As the years passed, Johnson became aware that he was appearing too frequently as a champion of lost causes. Such a role no doubt led to further tactical errors with the renowned barrister either out on a limb, or slightly bedraggled after the final encounter in court. The covering of that massive frame, however, was by no means thin, and he was quite capable of shrugging off the slings and arrows of piqued justice. Some of the shafts were pointed, for the temptation to wing the giant was irresistible. The fact that many who sat on the bench were his friends and contemporaries only made the sport more alluring. All this was more than overcome by the deference to his ability that soon came to be his due. The total of his victories grew more impressive; most of his reverses in the Supreme Court were traceable to errors in the lower courts, frequently before he was in the case. From his earliest years one type of case stands out among the many that bore his imprint. Each represented the little-known exception to a generally recognized principle of law. While his opponents laid down the rule, he delighted in bringing forth the rare instance, grounded upon fundamentals, in which the basic rule did not apply. In one case he faced the presumption of death that resulted from an absence of over seven years. Digging into the precedents and the old English law, he demonstrated that under the special circumstances of the instant case, involving the treasurer of a corporation delinquent in his accounts, the presumption was rebutted. In another instance, where the Statute of Limitations was interposed as a defense, he again revealed that this had no application between husband and wife, and did not operate as long as they were living together. In a third case, the argument involved the perennial conflict between a written agreement and parole evidence to modify its terms. None of the usual elements of fraud, or even of explanation, were present under which the verbal testimony could be interposed. Nevertheless the evidence went into the record, as Johnson argued successfully that the rule applied only against the parties to the agreement, and did not exclude the testimony of third persons. Each of these successes represented an unrivaled knowledge of the precedents, and an ability to reach into the past for a pat case. But both stemmed from the conviction that the law itself was a perfect instrument for achieving justice between man and man. He seemed assured that if broad rules proved inequitable under specific facts, the vast storehouse of the law contained a corollary that brought a happy conclusion. His intuition came from a knowledge of the reason and background of the law, as well as the precedents. [110]

XII

The Bar Sheds Its Ruffles W T H the dawn of the Eighties, the courts still crouched around Independence Square in any available corner, first-floor front or second-floor back. The Philosophical Society housed two county courts on the ground floor of its building at Fifth Street below Chestnut. Justice held forth in two rooms above Congress Hall at Sixth and Chestnut. The criminal courts lurked near-by. All were heated inadequately by little stoves, lighted by gas; ventilation was casual. At convenient proximity were the law offices. The costuming of the stars was more attractive than the setting. The lawyers were not yet replaced in popular appeal by screen actors and news commentators; their habits of dress as well as their activities were chattily noted by the press. The day of velvet waistcoats, silver buckles, and flowing lace cuffs was past, but Bond Street was having its influence. The "Town Tattler" reported: I think the best dressed men in town are the lawyers. Furman Sheppard is slouchy and sleek. Vaux does the eccentric. Richard P. White usually affects the gentlemanly farmer style. John G. Johnson assumes the attire of a college youth. George Junkin and William B. Mann don't care a copper how they look. Those years saw the retirement of Justice Sharswood, the first admission of a woman to the bar, the death of Judge Jeremiah Sullivan Black, a truly national figure, and the victory of Lawyer Richard Vaux for his pet project—robes for the judges of the higher courts. There were more serious matters. Title companies and trust companies were gaining a solid foothold, much to the displeasure of the bar. It had been the bar always which had acted as conveyancer, title searcher, and general depository. Estates and estate funds still reposed with some uneasiness in personal strong boxes and accounts, the lawyers' honor and conscience the sole safeguards. Crowding competition, cut-rate fees, and a continuing depression took their toll. The fast track and slow horses at near-by Gloucester figured in stories of shortages and

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JOHN G. JOHNSON disappearances a m o n g lawyers as well as business men. T h e prominent lawyer and conveyancer, and even the popular society lawyer fell f r o m grace with the obscure and improvident. Headlines were always invoked at such times. T h e old guard shook its head sadly. S o this was what came of the new-fangled law schools, they told each other. W h a t better could be expected of their machine-turned, store-clothed graduates! But even the products of the s a c r o s a n c t offices got into scrapes and put an end to that theory. T h e press, quick to ride the trend of public thought, gleaned every d i s p a r a g i n g item. T h e leaders were the likeliest targets of ridicule. S o m e h o w J o h n s o n seemed immune. T h e attitude of the press toward him was u n i f o r m l y friendly. B u t the b a r itself presented a f a r f r o m solid front to public and gossip writers. T h e c a m p a i g n of Amos Briggs for reelection showed the usual split. Two-thirds of the b a r ( P r i c h a r d among t h e m ) attacked the j u d g e f o r his egotism, eccentricity, infirmities of temper, his overbearance to the weak, his deference and submissiveness to the influential. T h e other t h i r d — J o h n s o n among them—lauded him f o r his long and honored service, integrity and acknowledged ability, and eminent fitness f o r office. T h e profession as a whole struggled manfully. About fifteen hundred lawyers cared f o r the city's legal needs—with less than one-third self-supporting. It was asserted that not more than one hundred had an income over $ 5 , 0 0 0 a year. On the other hand, a f e w — B u l l i t t , Dickson, J o h n s o n — w i t h incomes of over $ 1 0 0 , 0 0 0 , stood apart. J o h n s o n ' s income aroused no adverse c o m m e n t . It was his due for hard work. T h e methods of other leading offices—Bullitt and Dickson p a r t i c u l a r l y — w e r e different. T h e old guard as well as struggling young lawyers looked upon the f o r m e r ' s " l a w f a c t o r y , " with some twenty young men all working f o r little or no pay, as an unhappy portent for the future. B e c a u s e of the s h a r p competition, there scenes. Fistfights in magistrates' offices and became so frequent that the press reported noting on one occasion that the contestants

were other, less dignified even in the higher courts them as the latest sport, were evenly matched.

T h i s was not j u s t a l o c a l custom. Apparently the struggle was equally h a r d elsewhere. F r o m other counties came s i m i l a r reports, c l i m a x e d by the revealing h e a d l i n e : " S h o o t i n g in C o u r t — U s u a l B e r k s County O r p h a n s ' Court S l u g g i n g Match Relieved by Shooting A f f r a y . " T h i s was followed b y : " T h e s e Fighting L a w y e r s — T h e y are F i n e d in S m a l l W a y f o r S h o o t i n g in C o u r t . " As always in a period of transition or turmoil, p a r a d o x walked with progress. T h e concentration of work in a few hands b r o u g h t up the first thought of law partnerships. As early as 1 8 8 2 George Heide N o r r i s

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THE BAR SHEDS ITS RUFFLES pointed out that the increase in legal business was crowding the time of the lawyer. He cited a minor insurance case in which Binney in the "old days" had reviewed the law extending back for two thousand years. In the gracious days past, when there was little press of commercial business, partnerships were considered unprofessional. T h e very thought of locating the law offices near the commercial centers had been frowned upon. But now growing business was rushing the active lawyer. It was a common sight to see a worried client searching the courts to catch his attorney for a hurried conference. T h e bars of England and of New York furnished the precedents for law partnerships. Efficiency and reduction in costs were the asserted advantages. But in Philadelphia the costs were already notoriously low, and Johnson, the personification of all overworked lawyers, felt no need of partnership. He solved the problem by taking into his office a few capable men who were glad to work as his assistants. In the outer office was Edward Hammersley, who looked after real estate matters, which at that time included the collection of rents on clients' and estate properties. He had been a law student in Johnson's office, and had remained after his admission to the bar in 1875. He was somewhat deaf, but in spite of this handicap he gradually developed into an expert in his field, and remained with his chief over thirty years. With success and the years he became something of a social lion, and his fine figure, always nattily groomed, graced the best drawing rooms. Frank P . Prichard, whose association with Johnson was to be even longer, now worked hand in hand with him. T h e relationship between the two men was a remarkable one. Prichard was about twelve years younger, and under medium height. He had joined hÌ9 fortunes with the older lawyer in 1883, eight years after his own admission to the bar. He had attracted an excellent clientèle, was active in the courts, and highly regarded for his sterling character and industry. In due course he could have looked forward to a highly profitable practice, and the monetary factor was a minor motive in the step he took. He was a deep student of the law, and like Hampton L. Carson, his closest friend, would have made his mark in any company. Without great show of energy, both men accomplished a vast amount of work by continuous application and study. Prichard wrote articles, lectured in the Law School of the University on legal ethics, and cherished the dream of retiring at some time to write and grow apples. He was courteous and affable, and, while liked by everyone, had no intimates. Among his friends, Carson alone enjoyed the distinction of being called by his first name. Such was his zeal that he never walked; his usual pace was a jog bordering on a trot. His association with Johnson, lasting for [113]

over thirty-four

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represented the deep respect which the older man had for his judgment and ability, and the awe of the younger for his chief. There was also the attraction of opposites, with Prichard admiring the drive that he himself lacked. The consideration of each case by two such minds added a final ingredient which the profession had long recognized as essential to thorough preparation. There was no partnership between the two; Johnson was an individualist, the leading figure of a great tableau. Prichard received a substantial salary, which continued to the end, years after his own practice had grown to giant proportions. But the arrangement pleased both men, and Johnson undoubtedly felt that even the privilege of talking over an important case fully justified it. Of course there were vastly greater advantages that accrued to the younger man from an association with the leader. But recognition came to Prichard for his own achievements. He took active part in civic affairs, and lent his name to worthy movements. He became Chancellor of the local Bar Association. All in all, the two men wrote a fine story of friendship and mutual regard. Undoubtedly the older man looked upon his associate as his own representative to the many dinners and functions he himself was unable to attend. At an occasional gala dinner both would be on hand. A bar dinner was always a blind date. One might hear sonorous talks along well-worn grooves—the dismal repetition of old platitudes. Listening patiently was a necessary part of the ritual. But the talks of lawyers and judges at such times were often replete with humor, keen observations, and even surpassing brilliance. When the venerable George Sharswood retired as Chief Justice in December 1882, the dinner given by the bar in his honor was especially notable. The Judge, now in feeble health, spoke of his old intimates with feeling, and surprised his listeners by saying: With an able, faithful and honorable Bar such as this, it is by no means wonderful, as Lord Campbell seems to have thought it was, with how little knowledge of law a man may make a great judge. Indeed it may be questioned whether great learning is desirable in a judge. The Judge had done much to expedite the trial of cases. In the sixties it had been a common saying that it was better to abandon a case, however strong, than go to law. The local courts, with the Common Pleas expanded to four by the Constitution of 1873, were still few enough to stamp the individuality of each judge on the community. Allison was gentle and patient; Biddle less indulgent but witty. It was the latter who stated in that day of female revolt that the coming man was woman. Under Allison's tutelage he learned much. In one of his early cases he turned to his

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colleague, who was listening to the long argument of a lawyer with his usual patience. "Why, Judge, have you any doubt about t h i s ? " he asked. "Not the slightest," replied the Jobial Allison, "but you know if we are going to decide against him, we must hear him." "The idea that the judicial function is not merely to decide, but to hear and decide, in the words of the old Norman French, Oyer and Terminer," wrote Judge Biddle many years later, "struck me with a force I never felt before, and which, I sincerely hope, I have never forgotten." Among the other judges, Hare, a spare man with a gentle voice, was noted for his learning and was the author of the popular treatise on contracts. Cadwalader often lost himself in the depths of his scholarship and subtlety. Ludlow was described as able and honorable, but quicktempered and very human; Finletter as tall, thin, bloodless, and arbitrary. Thayer was incorruptible but irascible, a master of English and particularly of denunciation; Elcock was florid and well-meaning, Briggs, tall, thin, and of most unpleasant manners.* These were some of the men before whom Johnson, now in his prime, pleaded his cases. A few, like Acheson, had been quick of temper and strongly partisan as lawyers, but proved patient and impartial on the bench. Solidity seemed more essential than brilliance, and an occasional advocate who had excelled in practice disappointed as a judge. All these men felt keenly a reversal by a higher court. They had their foibles and shortcomings, but only rarely did an exceptional judge "play such fantastic tricks before high Heaven as made the angels weep." Sometimes the law seemed to bring about strange results, with the judges powerless in spite of their own convictions. When Morris Seguin, a poor colored man, lost his home by reason of a mistake on the part of his lawyer, Horace Binney, Jr., and seemed without redress because of the Statute of Limitations, Judge Gordon, in a strongly worded opinion, stretched the law to afford him relief. The higher court, faced by its own precedents, reversed, and there was much discussion of the case. Public resentment of anything that smacked of injustice, as well as the caliber of the judges, resulted in a growing emphasis upon substance rather than form. Johnson early received from the bench a deference that reciprocated his own. His presentation left no room for personal elements; his frequent appearances—often in public matters—made him almost a part of the judicial machinery. The catalogue of his cases was a chart of the city's progress. He represented the city in its conflict with the trustees of the Gas Works. Gas and electric companies throughout the state were meeting constant * Ended Episodes,

by George Norris.

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opposition. Municipal franchises were political footballs, each new election being the signal for a new legal scrimmage to abrogate the old or introduce new contracts. From Scranton, Erie, Pittsburgh, Chester, and many towns in between, came public officials and officers of private companies to enlist Johnson's help. The Wideners and Elkinses were gobbling up street lines and concessions, and the retention of Johnson by various companies at each important point of conflict made inevitable his prominent role in the general amalgamation of street railways. Peter Widener became more than a client. From Johnson he learned not only how to get out of a tight corner, but how to bid for a picture. It was from his attorney that Widener drew the stimulus to art collection. They found another common interest in an infrequent Saturday night over the poker table, arguing interminably over art all the while. In 1880, Johnson had won the battle for Philadelphia's first buses. The passenger railways objected to the omnibuses on Market and Broad streets, but Johnson won for the bus company the right to license coaches, although rights already had been given the railway companies to lay tracks. Johnson's energy kept the reporters busy. There rarely was an important estate matter in which his name did not appear on the list of counsel. Corporate issues were vital, and occasionally rowdy. Conflicts among stockholders or directors were frequently serious. Even the leaders, however, still occupied themselves with petty affairs. In Bentley's Appeal, 1882, Johnson fought through several courts a matter of $95. The question involved the presumption of payment after twenty years. Even adverse rulings did not stop him; he continued to argue collateral points long after the issue had been disposed of. This heavy infighting on such a matter was even more remarkable when it is realized that at the same time he was engaged in cases—with other counsel also—involving near millions, and was lined up in one of his first political cases, the forerunner of many others. The spoils of war were being argued by the receiver of taxes and the collector of delinquent taxes. The controversy revolved around the more than $100,000 collected over a period of years. With Johnson were Benjamin Harris Brewster and several lesser associates. Furman Sheppard headed the opposition. Corporation law was in the making; there was always a new precedent to establish in those days—the first liquidation of a defunct corporation, the first sale of a gas company with the disposal of mains, pipes, lamps, productive works, with a hundred attendant and supplementary problems. This "corporation lawyer" was not always concerned with public utilities and oil trusts. There were bitter factional disputes for control of railroads, factories, or fraternal orders and churches. The stakes in

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THE BAR SHEDS ITS RUFFLES such contests always were high, but personal animosities were much higher. The arguments of counsel were expected to match the emotion of the occasion. Johnson did all that was expected. As the important cases crowded out the trivial, it became impossible for Johnson to remain indifferent to the pressure of Supreme Court appearances. No longer could he shift this phase of work to the shoulders of others. On March 25, 1884, he made his first argument before the country's highest tribunal. Thereafter he often was forced to make quick trips to Washington on behalf of important clients—but got back the same day if possible. Through the years he deviated from his original routine as little as possible. Home, pictures, and law work were all that he needed. He rarely took part in the extra-curricular activities of the bar. There was one occasion he did not miss, however—the dinner given to the English Chief Justice Lord Coleridge. All the leaders of the bar, literature, finance, and society were there. George W. Biddle was toastmaster. He was a unique personality. As Chancellor of the Bar Association, and by virtue of social background as well as ability, he was the natural successor to Judge Sharswood as leader of his city's legal profession. Flanked by his brilliant sons, George, Sidney and Arthur, he was an imposing personage. His manner equalled his position, but a certain austerity overlay warmth or humor. His citations were moss-covered, and wherever possible he drew from English law. If a local case was needed for the point, he proffered it almost with apology. Nevertheless his ability transcended his aloofness, and his leadership, acclaimed without challenge, was in fact more than local. When the Canadian dispute over the Pacific fisheries came to a head, and the North Atlantic squadron was ordered to Portland, it was Biddle who, with W. L. Putnam, was consulted by Secretary of State George W. Bayard. Fortunately for all, the dispute was amicably settled, and the friendship of two great peoples remained undisturbed. With glory and riches the portion of only a small inner circle of the bar, and poverty and often dishonor at the outer rim, ambitious youth was not deterred. Even women were lured by the success of the few. Carrie Kilgore waged a nine-year battle from 1874 until 1883, when the highest court gave victory to her and her lawyer husband. All the while she had furnished copy for the newspapers. As so many strove for admission, others left the law for other pursuits. Horace Howard Furness stepped out in the prime of life to devote himself to his monumental Shakesperiana. Many went into the growing trust companies; others became associated with industries which they had counseled. Some, like Simon Sterne and George Harding, had gone to New York, to attain distinction. The old guard was thinning rapidly. Sharswood died in July 1883, and in December of the same [117]

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year Alexander Henry, war mayor of Philadelphia passed on, followed soon after by Eli Kirk Price, author of the system of recording titles. An era was fading too: the post-Civil War days, that had lost their shimmer in the exploitations of the new barons, and the revelations of the Star Route Trials. New inventions, new devices, new standards of business were imposing a swifter tempo upon the stately pace of the law. The honorable, well-adjusted members of the profession of law, seated around long tables upon a festive occasion, might seem intact from the slings and arrows of their own day. The toast of Biddle, Nestor of his profession, held only the spirit of responsibility and pride—"The Bar." But beneath the immaculate shirt fronts were the heartaches of a distressful period—their own in ample measure and the cares of others even more generously. Other people's troubles seemed to rest lightly upon their shoulders; custom had made in them a property of easiness, only because a daintier sense was a foe of effective advocacy. The bar had shed its ruffles; the era of ponderous dignity was receding. A sterner period lay ahead. For, though chancery loved equality, the law itself distributed its favors unevenly.

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Libel and Forgery Make Headlines M ANY of Johnson's most signal victories were written in the cases that he lost. Where his client was faced with grave damages, or even disaster, his ingenuity sometimes averted the blow entirely. More often he was able to lessen its force or minimize its effect. His prestige, which was limited to no class or sphere, was invoked frequently after lesser counsel had given up the job as useless, or had refused their aid. Johnson found keen delight in these triumphs. Where he had secured settlements for mere average folks, he often refused to make even a nominal charge for his services. Before juries he struck exactly the proper key, bearing down upon the bold and drawing out the hesitant. With judges his particular brew of magic was compounded of the salient ingredients—always offered with magnificent assurance and an unruffled deference. Most of these cases were not the kind to make small talk at a family dinner table. Nor did he trumpet his successes. Reporters who tried to beard him at the office or in his home were politely sent on their way. And after the lapse of years many of these battles seem particularly inconsequent. One case—in which defeat was actually a victory—-did offer a peculiar public interest. It marked the end of the seventies and stretched over into the eighties. It was not even important legally, but in a narrow circle it caused more of a flurry than the railway riots in Pittsburgh, the wild mining speculation out in San Francisco, and Jay Gould's empire of steel rails and engraved certificates that linked the two cities of this story. The case concerned a poet and a lady of easy virtue: the poet was young and poor and sensitive; the lady tenacious. The poet had friends; the lady acquired lawyers. Johnson appeared only in the final act, after the curtain had descended on the man who played the star, if tragic, role. The characters were not usual to the law office backdrop. At a later period there were whispers that the office setting of old leather,

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JOHN G. JOHNSON stale papers, and worn carpet might offer a decrepit chair to a demimondaine ( f o r the benefit of its chief l u m i n a r y ) ; but it could hardly welcome an impecunious and frustrated poet. It was not R i c h a r d R e a l f in person who sought the great man's aid. T h e harried poet had fulfilled the forebodings of his own l i n e s : H a r m s of the world shall come unto us, Cups of sorrow we yet shall drain. In answer to the final outrage of fortune, he had taken his own life. T h e restricted world of letters of the year 1 8 7 8 was shocked by the tragedy, p a r t i c u l a r l y in Philadelphia, where for a number of years he had made his home. T h e polite society of art spoke of youthful promise and recalled the plight of Edgar Poe, who had spent a harried year in the Quaker City thirty years before. T h e tragedy that had stalked P o e had overtaken him too, they believed. Among those who knew the poet m o r e intimately, it was whispered that poverty had played only one part in his misfortunes; another malady, chronic and incurable, had laid him low. R e a l f c a m e of an English peasant family. Without formal education, he had written a number of poems and had attracted the attention of Lady Byron and her daughter Ada. Seeking to escape the thralldom of caste in which he found himself, he came to America, and participated in the civil strife of Bleeding K a n s a s in 1 8 5 6 . He became secretary of state of J o h n Brown in Canada, and narrowly escaped hanging. During the war he had become a captain, and had been cited f o r bravery. A number of his poems brought him to the notice of American critics, and he eked out a living between writing and lecturing. He was a handsome man, of medium height, with a full, round face, and dark, straight hair, early touched with gray. In his mid-thirties, and burdened with aging parents and nine brothers and sisters all in need of help, he traveled widely on his lecture tours. At one time, after he had left Philadelphia, he found himself in a little village near Rochester, New Y o r k . When he was overcome by a spell of sickness, his landlord's daughter nursed him b a c k to health. Shortly afterwards he married her. After a year and a half of troubled married life, Mrs. Realf had a child which died soon after birth. I n August 1 8 7 2 , the husband left for Pittsburgh, where he started suit f o r divorce on grounds of infidelity. T h e case was bitterly contested, with accusations and counter-accusations. Mrs. Realf got an order of support, and R e a l f his freedom. He left the city and shortly after landed in San F r a n c i s c o . Here he settled down to a steady j o b and soon remarried. He looked hopefully to the future. He had his plans, a position in the Mint, additional newspaper assign-

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LIBEL AND FORGERY MAKE HEADLINES ments, and an uncommon share of responsibility. F o r , besides helping a younger sister and her ten children, he was now the father of triplets. However, during this time, the first M r s . R e a l f had appealed the divorce decree of the Pittsburgh court. Months later, the S u p r e m e Court handed down its decision. F o r reasons which the literary world decried as purely technical, but which actually were quite fundamental, it held that the poet had not properly proved his case; the R e a l f s were still married. T h i s reverse made R e a l f a bigamist. H i s first wife lost no time in taking up the trail westward. T h a t was late in 1 8 7 4 . After four years a chance whisper gave her the clue she h a d sought. On the witness stand, nearly five years later, she related the story of her last interview with her legal husband. T h e slight woman with an oval face and Grecian features seemed strangely unsuited f o r such savage passion and ruthless pursuit. S h e had gone to the boarding house where R e a l f was living with the wife, who was now his mistress, and demanded to see him. " W h o are y o u ? " the landlady asked nervously, suspecting a scandal under her roof. " I am Mrs. R e a l f , " she replied. " B u t Mrs. R e a l f lives here with M r . R e a l f , " the matron stated. " T h e y have lived here f o r y e a r s , " she added. " I am hi9 w i f e , " the slight, tensely composed stranger insisted, pulling out her marriage certificate. S h e then sat herself down on a chair in the little, scantily furnished p a r l o r . " I will wait here f o r my h u s b a n d . " Late that afternoon R e a l f returned f r o m his work to find waiting f o r him the woman f r o m whom he had fled for m o r e than ten years. " W h e r e did you come f r o m ? " he gasped. " W h e r e did you leave m e ? " she asked h i m . " W e l l , in P i t t s b u r g h ! " " W e l l , that's where I came f r o m . " " T h e n if you are here, I am going h o m e , " he said. " S o am I , " she stated, with unmistakable finality. T h e y went out walking t h e n — s h e , to escape the ear of the landlady, and he to spare the woman who was waiting for him in their modest rooms. According to the witness, who continued her story, as J o h n s o n gazed at the j u r y in stolid disbelief, Realf talked of many things. He had protested his regret and remorse at the suffering he had caused her, at his years of dissipation. He then asked her to go back home and promised to follow her. No doubt they had talked of money, too, in a manner to overburden the harassed man with bitterness, because he never went back to his

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lodgings. Instead, he made his way, with a final ironic gesture, to the Mint, and there he shot himself. In the March issue of Lippincott's Magazine for the next year appeared a long article by the noted historian and literary critic, Rossiter Johnson. In this were gathered all the tangled threads of rumor and gossip, fact and hearsay, that had startled its readers since that late autumn day in San Francisco. It set forth a full-length picture of the poet Realf; it dwelt particularly on his early unfortunate marriage, which it frankly named as the real cause of his early end. "Somehow it is difficult, if not impossible, to show why he became married to her," he said simply. "The explanation most favorable to her is that she nursed him through a critical illness, and that from gratitude and the hope of reforming her, he had made her his wife." When he reached the facts of her unfaithfulness, he wrote of her as "an evil thing," "a loathsome carcass," "a woman of the town whose malignity ruined his life, blasted his literary career, and drove him to suicide in the prime of his manhood." Mrs. Realf was no student of literature of the Lippincott variety. Undirected, her eye never would have come upon these unpleasant references to herself. But it was unlikely that so startling a publication would escape others who might find it to their advantage to apprise Mrs. Realf of this excellent case for the law. The good lady's hair was now sprinkled with gray, but she had lost none of her fire. Her mind worked quickly, and in its normal channels. She hurried to Philadelphia, and made straight for the office of E. Cooper Shapley. Her sense of direction was excellent; Shapley was an expert in the law of libel. Forthwith he brought suit against Lippincott for the blast at her reputation, fixing the damages at $25,000. Whether the article slipped by a negligent editor, or whether the company had determined to print the facts and take the consequences, its phrases left no room for doubt. A serious lawsuit was in prospect. The fact that the grave charges made by the Lippincott article might be true furnished no defense. The debatable question was only: Was there justification for publishing the article, and should it have been done in the form employed? Opening the case, E. Cooper Shapley read choice excerpts from the article, followed by a brief history of the poet's career during his marriage. Next he painted a new and sympathetic picture of the first Mrs. Realf. On behalf of the defense, Johnson read the entire article to the jury, supplementing it with a note written to Messrs. Lippincott by Shapley on behalf of Mrs. Realf notifying them of the suit. He read also Lippincott's reply, which offered to publish over their own signature a statement that the article had been written by Professor Rossiter Johnson, [122]

LIBEL AND FORGERY MAKE HEADLINES whose well-known accuracy they had accepted as a guarantee of the truthfulness of the statements made therein, concerning which, however, they had no personal knowledge. The publishers offered also to print a statement f r o m Mrs. Realf, giving her side of the story, provided that it did not occupy over three columns of space. T h e lawyer had to tread lightly over difficult ground. H e must prove that the plaintiff was so low that the foul things printed about her could do her no h a r m ; he must not arouse the latent chivalry of a j u r y of twelve good men and true. He had asked few questions in cross-examination: now he said little concerning the lady. H e merely offered a few d a m a g i n g documents in evidence. One was a certified copy of the conviction of M r s . Realf in Pittsburgh, in 1872, for the larceny of a watch. This was followed by several depositions of Pittsburgh residents confirming Mrs. R e a l f ' s b a d character. One witness had sworn that she was under the influence of liquor when her two-year-old child was dying. Another had attested that she had used obscene language while she was drunk in a Pittsburgh station house. Two newspaper men made a last contribution to the poet's good name by testifying with admirable restraint that her reputation for sobriety and chastity was not good. The lady countered the plea of justification with a vehement denial of all charges. T h e eyes of the j u r y turned from the chiseled features of the softspoken plaintiff, her dark eyes and arresting face, to J o h n s o n , his features a study in compassion and disbelief. Her persistence h a d finally met its equal. In his final talk the lawyer emphasized that Mrs. R e a l f ' s character was only partly the issue: the gentlemen of the j u r y were p a s s i n g final judgment upon Richard Realf, English poet of p r o m i s e and power. He referred only to the evidence, in quiet but burning sentences, for he knew that an impassioned plea from Shapley would follow. T h e charge of J u d g e Mitchell brought the j u r y back to solid g r o u n d . T h e publication was undoubtedly libelous, he instructed, " i f a p p l i e d to a good w o m a n . " It was their duty to determine whether the plaintiff had any character to be damaged, and, if so, to what extent it h a d been injured. T h e j u r y brought in a verdict for $250, which was a triumph f o r J o h n s o n . T h e alacrity with which the money was accepted a n d the judgment satisfied measured the need of the client and the disgust of her attorney. Another case for the S u n d a y supplements was occupying the J o h n s o n office during all this time. It had its own brand of romance that earmarked it f o r the p u l p thrillers of that day. The villain w a s W i l l i a m R . Dickerson, well but unfavorably known member of the P h i l a d e l p h i a bar. H e had come f r o m Bucks County in 1837 to reform Philadelphia. H e seemed to tilt at windmills, but knew the back way to the miller's cash-

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JOHN G. JOHNSON box. He w a s the m a i n s p r i n g of a committee of fifteen who were ostensibly bent upon ending abuses in State House Row. The committee specialized in suits directed against Sheriff McMichael, all brought by Counsellor Dickerson. H i s sole q u a l i f i c a t i o n for such a post was his a m a z i n g l y low fees. W i t h this bait he a c q u i r e d a motley following, a h i g h nuisance value, a n d h i g h e r fees. E a r l y in the fifties he r a n f o r s h e r i S in a w h i r l w i n d c a m p a i g n on a reform ticket. He e n j o y e d a first-class reputation as an orator, and there was as m u c h v a n i t y a s a v a r i c e behind his flamboyant bid for the lush spoils of that office. He rode through the city in a huge furniture van behind four great b a y s , the s m i l i n g hero of hopeful thousands. In later l i f e h i s interest turned f r o m law to religion, and he devoted his talents to pious h a r a n g u e s whenever he could scrape together a crowd w i l l i n g to listen. His middle y e a r s were enlivened by the most colorful m e l o d r a m a that ever crowded the local courtroom and the county j a i l . His offices were at Sixth and Walnut streets. In the s a m e b u i l d i n g Robert W h i t a k e r , an eccentric millionaire, also conducted his business. The old man h a d m a d e his money operating in coal l a n d s ; in Dickerson his cunning and n i g g a r d l y outlook found an echo. Dickerson endeared himself by c h a r g i n g little or nothing for his services, albeit he received l a r g e sums under the head of " l o a n s . " Esquire Dickerson prospered, though his brethren wondered how. By the summer of 1878 he w a s in comfortable circumstances; he enj o y e d a trickle of petty c l a i m s , swelled now and then by l a r g e r fees f r o m i n v o l u n t a r y clients. He h a d d r e a m s of g r e a t e r things, and to him a dream w a s the inception of a plot. On that d a y of August 23, 1878, when the senile W h i t a k e r ' s c a r r i a g e d a l l i e d overlong on the r a i l r o a d tracks at Hollingsworth Corner near Holmesburg, the m a t u r e d p l a n sprang f r o m the l a w y e r ' s brain into bold action. The necessary contacts with not too bright, or too honest, henchmen a l r e a d y h a d been made. The groundwork w a s complete. Within three weeks, the l a w y e r produced a will drawn up in his office M a y 5, 1875, which left the bulk of the estate to private charities. T h i s was s e e m i n g l y proper enough, but the executors happened to be Daniel Sheetz, A. B. Negus, a n d W i l l i a m R. Dickerson. The last-named w a s only one of three trustees, but the powers of his associates were restricted b y clauses requiring his own l e g a l advice and consent. The money, left to sweet charity, must linger comfortingly in the h a n d s of Dickerson en route; not a little of it w o u l d r e m a i n there in the w a y of estate fees. The W h i t a k e r relatives were not pleased by this beneficence. A p r i o r will h a d left the fortune to them. They opposed the probate of the new dispensation, and a h e a r i n g w a s fixed before the deputy register. Things b e g a n to go b a d l y , and not at all according to p l a n . Pending the

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LIBEL AND FORGERY MAKE HEADLINES outcome of the contest, a trust company was named administrator. T h e enraged relatives issued warrants for the arrest of Dickerson and his subscribing witnesses. T h i s was an unexpected move. Dickerson hired counsel to represent him, but went to prison in default of high bail. After a short time his normal acumen reasserted itself; he dangled the prize before the best lawyers of the city and, when the next phase of the long case unfolded, the proud F . C a r r o l l Brewster and B r a d b u r y Bedell spoke for the executors and the will. T h e y demanded that a j u r y pass on the validity of the last testament, as was their right. Months went by, and the Whitaker m i l l i o n s still made good t a b l e talk. W a s the will genuine, or was that outsider, Dickerson, p u l l i n g his biggest t r i c k ? By the time the case came to trial e a r l y in 1 8 7 9 , Brewster suspected that his client was none too p u r e ; an admission that the seals had been irregularly affixed confirmed his determination to withdraw. Sheetz, frightened by the grim prospect, agreed to have the will set aside in consideration of $ 1 , 5 0 0 for his empty purse and frayed nerves. T h i s was not satisfactory to the two sturdier villains, and another year went b y in motions and rules over this agreement. Meanwhile the shrewd beneficiaries of the contested will retained Furman Sheppard, former district attorney, and one o f the ablest trial lawyers of the day. With him were Maxwell Stevenson and J . J . MacMiller. Lined up in the opposing battery were J o h n C. B u l l i t t , S a m u e l Dickson, Samuel Pancoast, and J o h n G. J o h n s o n . Bullitt and S h e p p a r d had been good friends for a long time, but that was before the trial got under way early in J a n u a r y 1 8 8 0 . T h e extravaganza lasted nearly four and a half months. M o r e than one hundred and fifty witnesses took the stand. T h e clerks took down eight thousand pages of testimony. Throughout the spring this was the main topic of conversation. T h e r e was m o r e promised, too. Awaiting the outcome of the civil trial were the criminal suits against Dickerson and his witnesses, Pulte and V a n Artsdalen. T h e examination of witnesses went on f o r days. Handwriting experts f r o m several cities testified f o r and against the W h i t a k e r signature. It was a splendid show, with fraud and forgery highlighted and lines f o r everybody. Bullitt spoke for five full days in his address to the j u r y . Sheppard took three days f o r his final summing up. T h e t r i a l cost $ 1 0 0 , 0 0 0 , and before it was over, S h e p p a r d , as well as Sheetz, was financially ruined. Frequent scrimmages of the handwriting experts relieved the parade of witnesses. T h e c l i m a x was the cross-examination o f Dickerson, most of which fell to J o h n s o n . His conduct of that case through many long hours of tedious question and answer put the final stamp upon a reputation that had mounted steadily. In the heat of that fight, which the newspapers unfailingly termed the most protracted lawsuit since the T i c h b o r n e W i l l Case, he proved his mettle.

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As Dickerson finished his direct testimony, he stood forth as a pillar of reform—a worthy barrister who had incurred the wrath of powerful interests by his stout championship of the downtrodden. Under the careful guidance of Sheppard, he was identified with the worthy charities of the disputed will, among others an industrial school for boys. At the end of a week of cross-examination, however, the pious mask had been ripped away. The petty shifts of his practice were exposed to full view; Johnson forced from his lips his long association with Pulte and Van Artsdalen, notorious graduates of western prisons. When at last he left the stand, limp and bedraggled, the final verdict was no longer in doubt. But the records that would outline the bold lineaments of Johnson in the city of the late seventies disappeared with his generation. The performances that were the subject of mouth-to-mouth comment, of discussion and wonder, left few traces. His finished exhibition of courtroom mayhem in his brush with Dickerson lingered only in the minds of the spectators. They told how he hacked the elaborate framework designed by Dickerson with deft strokes. How the city flocked to enjoy the entrancing sadism of faltering witnesses writhing under his fusillade of questions; how the bar came to hear his clear outline of the legal phases. But the real spectacle was ended after the final witness had been dismissed and the last juryman paid off. It was the fate of the profession to leave few traces of its triumphs. The lawyer might place behind him a row of precedents, a revised ruling; he might inspire a new act of the legislature. But the magnificent speeches sired by a conscript zeal, the brilliant wit born of the expedience of the moment—these things were lost even as they sprang to life. No one understood this more clearly than the profession. At bar meetings innumerable tributes to departed leaders were coupled with the lament that the thrilling addresses to juries, the astute arguments on appeals, the scintillating lines of cross-examination, were as fleeting as the cleverness of after-dinner conversation, or the repartee of a gay gathering. This was especially true of Johnson's work. The endless private litigation with which most of his efforts were concerned left only a terse line of judicial decision—bare references to a few citations or to leading arguments of counsel. Nothing remained of the fire and passion of a brief hour of verbal warfare. The press of those years was niggardly of comment on the passing currents of litigation. The outstanding cases won only the barest mention. The four-page newspapers reserved six lines for Garfield's assassination, and three at most for the legal battles of the decade; not a word for the civil suits over which the lawyers sweated and clients fumed. In a few of his more important cases,

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LIBEL AND FORGERY MAKE HEADLINES Johnson won the mere note that such a case was tried between parties named before the wise judge who rendered the proper verdict; rarely was there mention of counsel or of anything except the result. The legal journals gave even less of general interest. They contented themselves with the actual decision, the principles of law expounded by the court—all for the enlightenment of the bar. They contained as much information about personalities—the lawyers and their performances—as a road map of a county offers of its inhabitants. In spite of the absence of an ambitious press, and a radio that brought the world into each kitchen with the breakfast toast, Johnson was a well-known figure in his city of three quarters of a million citizens. Filtering down through the conversation of lawyers and men of business, by way of secretaries, tailors, and the like, his fame reached the lowly level from which he himself had come. And to him, in time of distress or panic—an imperiled legacy, an accident, a divorce—these simple folk came with assurance. There were already in these years great triumphs, but in the main there was little of civic drama in the lawyer's repertory. Mostly his engagements were local, the fighting keen but brief, and at times the skirmish was over as quickly as it began. These encounters attracted no great crowds, like the appearances of Jeremiah Sullivan Black. Nor did they echo like the constitutional arguments of a Webster. His reputation was secure without the necessity of constant reinstatement. It rested firmly upon hundreds of successes, and was not to be shaken by casual reverses. Without parade, he yet gave an easy, satisfying performance. He was eminently not a phrasemaker, but backed his great fund of technical knowledge with simple, rugged words, charged with meaning by a vigorous passion. Occasionally duty called him to the spotlight. The announcement of a super-performance by this super-workman always brought a real response. Standing foursquare before court or jury, with his forefinger beating out the points, he spoke in firm, but unexcited, tones— the voice of common sense. His public was pleased with the vigor of his attack upon Dickerson. The many ramifications made it a seemingly endless case. The will was set aside, and criminal prosecutions were instituted against Pulte, Van Artsdalen, and Dickerson. Pulte pleaded guilty and got three years. Van Artsdalen was also sent to j a i l for a long stretch, while the heaviest sentence, ten years in the county jail, was meted out to Dickerson. Until his release in 1889, the name of Dickerson cropped up occasionally in the news. F o r several years his wife, who had some property of her own, pleaded tirelessly for his release. He himself continued to protest his innocence: in fact, he assumed to the end the mantle of the people's champion railroaded by sinister interests. From his jail cell he declared himself a candidate for mayor, and with true religious

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JOHN G. JOHNSON fervor expressed forgiveness for his " e n e m i e s . " A younger brother, who practised law in New Y o r k , c a m e to the city with plans to reopen the case and, declaring that " m o n e y rules everything," made preparations f o r further appeals. Finally Dickerson emerged f r o m prison, his health improved by the long sentence, avid for further publicity. A few years later he was dead, surprising everyone by leaving a substantial estate of more than $ 3 0 , 0 0 0 . Strangely, too, all his loans to W h i t a k e r had been p a i d ; for twenty years of legal service to the eccentric millionaire he had received some $ 1 6 , 0 0 0 in fees. Upon all the facts, the opinion gradually crystallized that the so-called " f o r g e d w i l l " had really been genuine, but that a page h a d been introduced fraudulently, n a m i n g the executors and defining their powers. It was a not infrequent situation, where a single false step destroyed a case of substantial merit. Many other problems that stemmed from fraud drifted into J o h n s o n ' s office. In the earlier years, when real estate settlements were in the sole hands of lawyers and conveyancers, the forgery of a mortgage gave rise to many complications. T h e issue always narrowed to the agency of the forger. T h e forgery of stock certificates, of cheques, and even the duplication of a rubber signature stamp, were to be instanced several times in J o h n s o n ' s cases. Such litigation concerned itself definitely with property rights, as opposed to what many term personal rights. It might mystify those who insist that the law should concern itself only with justice and not with technicalities. F o r the question usually resolved itself into which of two entirely innocent parties should suffer loss, and the courts themselves grew dizzy in their efforts to achieve the proper result. Such was the famous case of Holly and the Missionary Society, which J o h n s o n unsuccessfully took to the highest court. Dr. Saul had left legacies for the Missionary Society, and Lawyer T h o m p s o n , who represented the estate, had converted the funds to his own use. U n d e r fear of exposure he obtained moneys from H o l l y on the pretense of selling a parcel of real estate, which belonged to the estate. H o l l y ' s money was deposited in the lawyer's account and used immediately to pay the legacy of the Missionary Society. Peter was r o b b e d to pay P a u l , who already had been fleeced. In vain Johnson emphasized the equities in favor of H o l l y . W i t h the knowledge that an innocent party would have to suffer in any event, the highest courts refused to change the resultant situation.

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XIV

Disunion in the Union League

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_LHE work of the lawyer was performed within severe limitations. An advocate for hire, he offered a brand of partisan service. No matter how critical the public might be of the profession, and how general the outcry for even-handed justice, as against law or precedent, the great corporation and the meanest citizen were single-minded in their desire for a result favorable to themselves. For a modest fee a thousand other practitioners stood ready with assorted samples of efficient representation. The competition encountered by an able advocate was indeed formidable. A notable group enjoyed the dazzling prestige of public office with its real and fancied implications. Another flaunted a social background and ties with the high-placed. Lacking such allure, others emphasized only their adroitness, legal acumen, or sheer industry. The average barrister might indeed abandon the sharp struggle for private business and luxuriate in a public post; he might take up with reform. But as long as he stood forth as an advocate, he rated public patronage by the results he was able to achieve. Frequently an awareness of this fact brought about a lowering of ethical standards and a deterioration in the attorney's relations with his fellow practitioners. Fortunately there was ever a place for the merely able lawyer, who knew the precedents and how to press them upon courts and juries. Johnson's reputation rested only upon his sureness in the law and his forceful advocacy. He fought hard but clean. He was courteous to opponents, but never fraternized on the firing line. His conduct was a code of ethics. His growing clientele could be ascribed to resounding triumphs in the courtroom and the attractiveness of boundless energy and a kindly sympathy. The leaders of business and industry found in him a man after their own hearts, big in stature and in outlook. His early recognition brought him sharply contested controversies. But it also brought him many constructive legal problems—the business of growing institutions, which desired only that the law be interpreted, and not twisted or distorted. The scope as well as the volume of his work sharply

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JOHN G. JOHNSON

defined his functions. He retained his independence, and interpreted the law broadly; but an inquiry into motives and ultimate objectives was definitely precluded. He did his part to discourage an over-readiness to legal action. But even his conservative tactics brought into court a hundred cases that today's counsel would settle in conference in his own office, or perhaps by telephone, the last a most efficient aid to friendly adjustment Frequently an opinion offered by Johnson forestalled a suit. Candor and knowledge gave to it the impress of authority. A certain mystery overhung his private life. It was often repeated— erroneously—that he refused to join the American Bar Association, that he never had anything to do with politics. It was also intimated that he never belonged to a club, and that he did not attend public dinners. It was said that he loathed publicity with a positive passion, and that this was no mere shrinking from notoriety. The earliest accounts of the lawyer stressed a refusal to have his picture taken, and yet indicated none of the gruffness of the misanthrope. He was not a misanthrope at all. He took no formal measures to guard himself from publicity; no discourtesy scared away questioners, no ceremony hedged him about. He scorned the red tape by which strangers were ushered to smaller men and, if he was not social, he was at least democratic. If he was not busy with someone else, the visitor might walk in. If a case interested him, he took it. Socially too he had no brusquerie. He disliked social gatherings merely because they wasted his time. Whenever it was possible he stayed away. His refusals were courteous but unbending. On vacation he was the acme of sociability, and his days a round of successive social meetings. The impression made by Johnson upon his fellow members at his own club was recorded in a letter of Alexander J. Dallas Dixon, a distinguished lawyer, long prominent in the business and social life of his city. The letter was written late in 1940, when Dixon had passed his ninetieth year. It stated: When I first became intimate with him, he was already in the midst of his great career. We were members, at the same time, of the Philadelphia Club where he used to lunch nearly every day. He had a special table at one corner of the grill room which was always reserved for him. We were proud of having him as a member and he was beloved by everybody. Under a somewhat rugged exterior he was a sympathetic and most lovable man. I often heard him try cases in the Common Pleas and also argue cases in the Supreme Court and he always gave the impression of tremendous power. It has been one of the privileges of my life to have known him. There were indeed excellent reasons for a certain aloofness on the [130]

DISUNION IN THE UNION LEAGUE part of Johnson from the normal contacts that attend success. His extensive practice frequently placed him in opposition to his own intimates. Had he hesitated to act against the interests of his friends and acquaintances, his practice would have dwindled to a trickle. If to such cases were added those he had to turn away because of his retention by other interests, his hands would have been tied into impotence. Inevitably he was aligned with or opposed to persons and interests he had represented before. Where he felt an important principle was at stake, he acted without hesitation. Yet his conduct of his cases was such that little bitterness was aroused. This was equally true of his cross-examination of witnesses. Upon one occasion his colleagues were somewhat perturbed by the intensity with which he attacked a hostile witness, a business man well known in the community. " A r e you not over-severe?" asked one. Johnson said nothing but, after the case was ended, and properly won, remarked: " I have found that those I have fought hardest have later come to me for advice and help." In the sober 1880's Philadelphia took itself and its lawyers very seriously. Politics was serious, culture more so: but most serious of all was the law. Victory and defeat in the courtroom involved more than money. It was a public appraisal of the litigants, as well as of the lawyers. There were few current distractions. The new wonders of Mr. Barnum roused a certain curiosity, and another hectic boom in oil shares sent a generous quota of speculators to that eminent neurologist, Dr. S. Weir Mitchell. It was less dangerous and equally exciting to follow the drama of the courtroom. Admission was free, the testimony at times highly persona], and the lawyers could be counted on for a display of pyrotechnics. Johnson particularly would bear watching, and the anecdotes that floated about marked him as the star in any cast. At the time a singular episode—a little affair of harsh words in the Union League—was being discussed; neither widely nor without decorum, but certainly discussed. It hardly merited the designation of an "incident," as that term has come to be used. But it was typical of a phase of the lawyer's practice, because nearly every institution in the city that predated "Consolidation" or even the Centennial had its own Johnson story. Churches, fraternal organizations, associations small and large, hospitals, charities, all came to him. Sometimes he sent these prospective clients about their affairs with a few pointed phrases, but often he rolled up his sleeves for action, even if the case was not of great significance. At such times the distaste of the lawyer to become too deeply entangled in the social life of the city—apart from the lack of available time—found justification. In its ornate brownstone fortress at the corner of Broad and Sansom [131]

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Streets, the Union League nourished an intense Republicanism. From deep-cushioned chairs the older members looked out merely as spectators of the passing scene. The membership included many of the city's ablest spirits, who had worked hard and accomplished much. But many were no longer young in years and older still in their fears and outlook. To a not inconsiderable number of their fellow citizens, the ornate citadel was a New World Bastille, to be stormed—as indeed it was many years later by an agile leader of a triumphant Democracy. The Union League had been founded in the autumn of 1862 as a protest and protection against the sanguine belief that slavery and secession were of casual interest to substantial citizens. It stood for the suppression of the Rebellion and unqualified loyalty to the government. Abraham Lincoln was its patron saint. But the tie was sentimental rather than real: for the League scorned his successor, waving the Bloody Shirt with the most uncompromising foes of the South. After the War and Reconstruction, the military ardor subsided, and political zeal became a rabid partisanship. None who had voted any other than the Republican ticket might aspire to membership. Between wars and elections the social flavor of the club became more palpable: a membership of leading industrialists and financiers, sprinkled with not a few of the oldest families, radiated a ponderous dignity. The atmosphere was gentlemanly, and this gentle air was jealously guarded by the by-laws as well as by the membership. Unfortunately, in these years the body did not enjoy a complete unity. For some time there had been unpleasantness between Arthur Burt, who was in trade, and William E. Littleton, Quarter Sessions Clerk, and stalwart in the local Republican hierarchy. Burt's membership went back to 1870, but in the intervening period several altercations with Littleton had flared up. On one occasion Burt had preferred charges against the lawyer, but these had been dismissed by the Board of Directors. In 1881 he had been suspended from membership for disorderly conduct in the Clubhouse. Upon his request and assurance of future good conduct, the verdict of the Board of Directors had been set aside, and he was reinstated. But the feud between the two men was deep-seated; both had the support of many friends, with a substantial minority either neutral or indifferent. On December 9, 1882, Burt and Littleton met in the restaurant of the Club. According to subsequent testimony, Burt ambled across the drinking room, and in a conversational tone said to Littleton: "/, sir, have behaved like a gentleman, and you have acted like a blackguard." The effect of these uncomplimentary, though scarcely explosive, words on the delicate tympana of a politician's ears was acute. He pre-

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DISUNION IN THE UNION LEAGUE ferred charges of conduct u n b e c o m i n g a gentleman, citing " t h e grossly insulting l a n g u a g e " that had been directed against him. T o these charges B u r t entered a d e n i a l ; he also countercharged that his accuser had been under the influence of liquor, and that his remarks had been provoked by Littleton's rudeness. T h i s c o u n t e r c h a r g e precipitated a crisis in the affairs of the club. A committee o f the B o a r d of Directors met to air the accusations. Hearings were h e l d ; witnesses were heard, and examined and cross-examined at length by high-priced attorneys f r o m the membership. F i n a l l y the committee submitted to the B o a r d of Directors a resolution which was unanimously a d o p t e d : T h a t Arthur B u r t had been guilty of a violation of Article II, Section 5, of the by-laws of the Union League, and that he be and is hereby suspended from this date f r o m his privileges as a member. B u r t appealed this bership was c a l l e d . cause f o r expulsion the trifling nature of

decision, and a special meeting of the entire memHe gave two reasons for the a p p e a l : insufficient (citing copious extracts f r o m the t e s t i m o n y ) , and the offense.

T h e able attorneys f o r the Committee found a by-law to take care of this exigency too. U n d e r Article I V , President Boker found himself in the chair facing 2 7 9 m e m b e r s who would decide the fate of M r . Burt. T h e meeting opened with the reading of the Board's statement of the Committee's findings and the subsequent action of the Board. T h e B o a r d ' s spokesman also pointed out that the counter charge had been found to be u n w a r r a n t e d — w h i c h constituted an aggravation of B u r t ' s offense. His previous suspension f o r a similar slight, his reinstatement, and his pledge of further good conduct, were also exhibited with p r o p e r effect. A fine legal h a n d was ever c l e a r : a steam-roller was in action. Burt's statement was read, but no witnesses were called, and the appeal was submitted s i m p l y on the facts found by the Committee. L a w y e r Pettit spoke on b e h a l f of the B o a r d ; f o r B u r t , W a y n e M a c V e a g h gave one of his best speeches. T h e latter had served as Attorney-General of the United States under President Garfield. He was the son of a tavern keeper at P h o e n i x v i l l e ; a brother, Franklin M a c V e a g h , also rose to high distinction, but a third b r o t h e r stayed behind and devoted the rest of his life to his father's business. W a y n e ' s h u m o r was m o r d a n t and his speech vitriolic. His opening remarks at the dinner tendered to h i m by the b a r on his return from R o m e as A m b a s s a d o r to I t a l y were long remembered. " W h e n I look about m e , " he had said, " a n d see so many lawyers who never will b e judges, and so m a n y judges who never were lawyers, I know I am b a c k in P e n n s y l v a n i a . "

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JOHN G. JOHNSON At any rate his plea that fateful afternoon did his client little g o o d . After lawyer Perkins had closed the discussion, the President put the question: " S h a l l the sentence of the B o a r d be s u s t a i n e d ? " T h e result of the vote was 1 4 6 ayes, 75 noes, 5 8 not voting. The President announced that since a m a j o r i t y of those present h a d voted in the affirmative, the a p p e a l was not s u s t a i n e d ; Burt was no longer a member of the Union L e a g u e . Burt, however, refused to accept this situation. B e r n a r d Gilpin, who was his attorney and close friend, did not think he was in a position t o g r a p p l e with the powerful forces in the R e p u b l i c a n bulwark. At that date, a quarter century after the last Democratic victory in the city and state, and half a century b e f o r e the n e x t — b a r r i n g the accident of Pattison's election—the task of m o v i n g the City Hall and the comfortable gentlemen permanently settled in their row offices was of equal difficulty. Burt had learned what G i l p i n knew, that political leaders have long a r m s as well as sensitive ears, and present a united front. Now the lawyer saw clearly that only one m a n in the city could help his client, if that were at all possible. Together the two men sought Johnson. This was a case which J o h n s o n might easily have turned aside, and the merely prudent lawyer would have begged politely to be excused. The issue was by no means clear. T h e Union L e a g u e had become a social club. The vote of a m a j o r i t y of the members would seem to indicate that Burt had become persona non grata. Membership in such an organization was certainly not by right, but s i m p l y by the good will of the body. Club harmony dictated that one who lost it should forfeit his membership by the same token that an applicant c o u l d be excluded by a single black ball. Disharmony between members would seem, by the code of the gentleman, to call f o r a binding truce or the withdrawal of one or other of the combatants. That this sort of thing s h o u l d h a p p e n across the sedate threshold of the L e a g u e was sufficiently e m b a r r a s s i n g to the b o d y ; that it be given public view was insufferable. J o h n s o n realized this; most, if not all, of the members were his acquaintances. M a n y were g o o d friends. W i l l i a m E. Littleton was a friend of his student days, with whom he had e n g a g e d in a number of moot-court arguments in the L a w A c a d e m y . H e was now securely placed in public office; the relations between the two men were cordial. N o r could there be criticism of the motives of the m e m b e r s who had backed his stand within the narrow limits of a club imbroglio. F r o m the legal point of view, it was doubtful if this intra-mural schism came under the jurisdiction of courts and lawyers. E s q u i r e J o h n s o n ' s services were available for all who might be deprived of a certificate of the Pennsylvania Railroad, but were h a r d l y to be invoked on behalf of the neighborhood boy's club or a T u e s d a y sewing circle. [134]

DISUNION IN THE UNION LEAGUE T h e tradition of the U n i o n L e a g u e g a v e a broader aspect to the scene. Its condemnation was a definite slur on the name of any good Philadelp h i a n ; and the s t i g m a of ungentlemanly conduct meant social disgrace. In addition, the method of procedure on the part of the Club clashed with the lawyer's sense of justice. Although Littleton was a friend, he could not a g r e e with his method of dealing with a chance remark. It is doubtful if anyone ever a p p r o a c h e d Johnson with the salutation that he had acted like a b l a c k g u a r d . If he had, there certainly would have been no more possibility of a court scene than of a fist-fight. He might have yielded to a "tut-tut," or even a " p i s h . " But in his crowded d a y s he most likely would have shrugged his shoulders and hurried off to his next appointment. J o h n s o n filed a petition in the C o m m o n Pleas Court for a writ of m a n d a m u s directed to the Union L e a g u e commanding it to restore B u r t to the rights and privileges of membership. One irregularity he dwelt upon was the manner of p h r a s i n g the question which resulted in Burt's ouster. The question had been put to the members whether the sentence of the B o a r d of M a n a g e r s should be affirmed, and not whether the member should be expelled. J o h n s o n s a w in this a loading of the dice against his client. Furthermore, Burt h a d not been found guilty of disorderly conduct in the usual m e a n i n g of that term, nor had it been shown that his conduct warranted expulsion. J o h n s o n pointed out that the English cases, which left these matters in the hands of the clubs, could not a p p l y in this country where such clubs are incorporated. He explained that the socalled proprietary clubs of E n g l a n d were thus termed because they h a d no property. H i s main argument, however, was that his client h a d been guilty of no offense warranting expulsion. " D i s o r d e r l y c o n d u c t , " he insisted, meant something more than his client's trivial remark. Opposed to J o h n s o n were J o s e p h B . Townsend and Angelo T . Freedley. They a r g u e d , in the main, that the power of expulsion in such organizations might be vested in the B o a r d of Directors, that where such power was exercised in a bona fide manner, a court could not interfere, and that such matters in social clubs were the concern only of the membership. F o r several years the Burt-Littleton f r a c a s was fought out only at the Club bar. N o j u d g e wanted to sit on the c a s e : many jurists were either friends of one of the parties or members of the L e a g u e or both. After five years J u d g e Finletter entered a judgment in favor of Burt. It was a courageous action, typical of the brand of justice he dispensed. H i s opinion followed J o h n s o n ' s reasoning. He emphasized the serious a i m s of the L e a g u e and refused to give recognition to the fact that it had become merely a c l u b f o r social purposes. He sustained Johnson's contention that there had been no disorderly conduct, and contrasted the triviality of the offense with the g r a v e penalty. [135]

JOHN G. JOHNSON

His ire was roused by the apparent regulation that in the event of a lost appeal, suspension becomes expulsion. Finletter decried this by-law as extraordinary and unreasonable. His opinion ended: The by-laws under which the relator was disfranchised violate all of these principles, and we are compelled to disregard them and adjudge that he was not lawfully expelled. The decree brought only a momentary shock to the League Directors. With a stubbornness worthy of a better cause, they squared their shoulders and instructed their attorneys to carry the case to the Supreme Court. Another year rolled b y ; the facts were rehashed before the seven justices. Johnson hammered home the points he had previously made, and particularly emphasized that the League was no mere social club, but a moneyed corporation; he dwelt on the seriousness of expulsion. On the other side, his opponents tried to show that the Board had acted in accordance with the by-laws and the charter. The high court reversed Judge Finletter and held unanimously that Burt had been properly expelled. It met most of the objections by asserting that the express power of expulsion was conferred by the charter, and that each member was bound by the by-laws. It took the view that the offensive statement of Burt constituted disorderly conduct, and that in any event it could not go behind the finding of the Board on this point. It did not meet the objection that the question as put to the membership placed the Directors, and not Burt, on trial. So it came about that Arthur Burt ceased to be a member of the Union League, and to trouble the formal camaraderie of its bar and restaurant. Thereafter animosities were checked at the entrance with hats and coats; in any event the clashing egos of middle age did not escape the walls of the club. In time, even Burt forgot the brand that had seared his forehead; the club's stubborn republicanism was gradually transmuted into a stodgy bourbonism—particularly fostered by the comfort of its deep leather chairs, and the uniform success of the organization in the local elections. Johnson resumed the routine of his own life too. In fact, the storm in the cocktail glasses of the feuding members had nowise altered it. His daily schedules were not geared to the cushions of a club lounge. At his own club, he hurried in at noon, for a brief half hour, to eat his oysters, a full dozen of them on half shell, and to scan his newspaper. If by chance the seat in his favorite corner was occupied by someone unfamiliar with his daily habit, he stamped out again to a near-by oyster bar or the armchair of a chain restaurant. He was definitely not a club man. [136]

XV

The Family Grows Up

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J L H E house at 506 South Broad Street, to which the family had moved, was spacious and cheerful. The taint of office perplexity and courtroom conflict was absent: cases were carefully insulated in the lawyer's green bag, to be released only in his thick-walled study. Usually the master came rumbling and snorting home from his office. A rollicking monarch whose rule was never questioned, he dissolved at once into chuckles, jokes and horseplay with his children. However, his wife kept in bounds a boisterous temperament erupted from the daily grind. His love and admiration for her, and his delight in her company were so profound as—to some observers—to be almost pathetic. The lady touched drawing room and kitchen with the magic of a gracious personality and a knowledge born of generations of gentle living. The two daughters went about their chores acquiring a Victorian culture in the city's best schools for young misses. The son was doing nicely at the Academy and would soon enter the University of Pennsylvania Law School. And—test of the soul of the house—the servants were efficient and happy. The scale of living was ample but not pretentious. The staff was sufficient for the tasks, but idleness was not considered in the schedule. None the less, those who joined the household were loath to leave it; one young woman who came in the early eighties, to help out for a party, remained until the death of the master. Mrs. Johnson was active socially. Her background placed her safely across the city's most carefully guarded thresholds, but her tastes ran definitely counter to smart society. The Johnson home became an established stop for conservative groups with serious purposes that ranged from charity to practical uplift. Johnson was usually absent from these gatherings; he had every confidence in his wife's direction of her affairs. If he saw the lights burning in the drawing room, often he would detour to a back door and hurry to his own room. A glance over [137]

JOHN G. JOHNSON the day's paper, then to read h a l f a dozen briefs, or possibly a bit of exercise on the pulleys he kept f o r that purpose. Dinner was always an e l a b o r a t e occasion, f o r which the lightest of midday lunches was merely an appetizer. T h e n an h o u r ' s play with the children, and another hour devoted to the paintings that were gradually filling the walls, and to an extensive correspondence with art critics and experts the world over. L a t e r , work at the law till two or three in the morning. T h i s rigid p r o g r a m was undoubtedly motivated by a somewhat narrow vision. Not that J o h n s o n fitted B e n t h a m ' s detraction of the profession — t h a t the law narrowed the m i n d b y sharpening it. B u t the habit of work and concentration was not easily sloughed off. In addition, he was, outside the law, an inordinately shy person. A native diffidence, and a reluctance to shift his attention f r o m the work always pressing upon him, became an abhorrence of p u b l i c display. Once when his wife persuaded h i m to a c c o m p a n y h e r to a special reception, he was standing off b y h i m s e l f while the main current pushed toward the candle-lit dining room. A solicitous hostess asked him why he did not go in to the buffet luncheon. " I couldn't think of facing that s t r u g g l e , " he answered smilingly. He was indeed too much concerned with grave p r o b l e m s to find interest in the small ways and the small talk of polite society. In spite of the master's schedule of h a r d work, the f a m i l y life expanded pleasurably over two cities and two continents. B y m i d - J u n e of each year the city home was closed tightly, and M r s . J o h n s o n and the children were off to her paternal h o m e in Newport, to be j o i n e d a few weeks later by her husband. S w i m m i n g in the ocean or taking his ease on the veranda, he relaxed completely f o r a few weeks. T h i s was followed f o r many years by a trip to E u r o p e , sight-seeing on the Continent, watching the cricket matches in E n g l a n d , and haunting galleries and museums everywhere. His own vacations were always foreshortened. T h e family went on before h i m , and returned b y easy stages after he had hurried b a c k to the cases that had drifted into his office over the summer. E a r l y in the f a l l of 1 8 8 7 he found a m o n g his files the case of another lawyer who had also returned f r o m the seashore to meet an unusual surprise at his own doorstep. G e o r g e M . D a l l a s , who h a d not yet ascended the bench as judge of the Circuit Court of A p p e a l s , h a d purchased a house at 1 5 1 4 P i n e Street, and, after a r r a n g i n g f o r extensive improvements and alterations, had gone off with his f a m i l y for a long vacation. On his return a small sign on the property a d j o i n i n g to the east showed that he h a d a new n e i g h b o r — " T h e L a d i e s ' Decorative Art S o c i e t y . " It was a neat metal inscription, and the D a l l a s f a m i l y proceeded into its new h o m e with p l e a s i n g visions of g r a c i o u s ladies paint-

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THE FAMILY GROWS UP ing plaques, weaving lace, and embroidering. Within a few weeks, strange noises were a n n o y i n g l y audible; there was a loud pounding and h a m m e r i n g , in the evening hours as well as during the day. When his wife complained that the noises were distracting, h e patiently urged that the art society was probably making repairs to its new home, a n d that the din would soon be at end. E a r l y in October, when his c h i l d b e c a m e ill, he paid a visit to his new neighbor. T h e sight of forty y o u n g Amazons h a m m e r i n g on brass and carving in wood showed the true cause of the hideous cacophony. He found that the society gave instruction to its students in metal work and woodcarving, with night classes as well as day sessions. T h e disharmony of brass and w o o d — w h i c h was added to water-color painting and chinaware decorati n g — p r o v e d a distasteful symphony f o r the Dallas family. J o h n s o n sought an i n j u n c t i o n against the unwelcome serenade. His bill of complaint stated that the L a d i e s ' Decorative Art Society constituted a n u i s a n c e ; that it refused to stop the noises complained of, " w h i c h deprived the Dallas f a m i l y during health of the reasonable enjoyment, c o m f o r t and quiet of their home, and during illness, has done and p r o b a b l y would do, great i n j u r y and might imperil l i f e . " T h i s statement was backed up by seven injunction affidavits f r o m neighboring residents, who agreed that an insufferable bedlam of noise at all times interrupted the quiet of Fifteenth and Pine streets. A completely different picture of the work of the society was presented in the defense offered by T h o m a s Reath, its counsel. It appeared that the c l u b h a d an ancient and h o n o r a b l e history. It was five y e a r s old, with a m e m b e r s h i p of over one hundred. Charles Godfrey L e l a n d was its president, and other worthy citizens were patrons. T h e c l u b members swore u n a n i m o u s l y that the club was a public benefactor, and that no real noise emanated f r o m it. T h e good professor who rented the parlor of the clubhouse, where he conducted a course in F r e n c h , and his wife also, testified that they had heard none of the disquieting sounds complained of. Such a disparity o f t e s t i m o n y — o r sensitivity—in injunction cases was not unusual. A f t e r listening to all the evidence, the judges decided that the P i n e Street residents did not have to submit to the din of brassworking. T h i s episode, which loomed l a r g e in the life of his client, h a r d l y seems of moment after h a l f a century. In fact, the daily schedule of a great lawyer b e c a m e important o n l y when it concerned itself with personalities or impinged on matters of public interest. A succession of minor m i r a c l e s might indicate to the profession a superior craftsmanship. But history is not concerned with m i n o r miracles. T h e little triumphs which slowly changed the law, like the carefully developed technique of a surgeon or the innovations of an engineer, paved the way

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for progress. The public took little note, and remembered only the major victories. Johnson had more than his share of these, too. He was still young, but his fame was permeating the country. Major corporations and growing public utilities bid for his services. In spite of such flattering retainers, his office remained the resort of the average family faced by a novel situation, or a minor executive with a contract to be drawn. The clash of iron on brass had sent the distinguished barrister Dallas to his office; shortly thereafter a young printer consulted him upon an analogous problem of a lusty city. The young man's press ground out a little weekly newspaper near Ninth and Spruce Streets, and the neighbors raised violent objection to the noise. Under Johnson's persuasion the highest court refused an injunction. One who resides in the center of a large city, the opinion stated, must not expect to be surrounded by the stillness of a rural district. He must hear some of the noise, and occasionally feel some of the vibrations produced by the movements of its people and the hum of its machines. Johnson's client was James Elverson, who later launched the Inquirer; his magnificent publishing house was built a few years too late for Johnson's admiration. Such was the normal grist in the lawyer's mill. Frequently the issues were technical, the duty of the Quarter Sessions Court to grant a liquor license, the validity of sheriffs' sales, the conversion of stock shares, the construction of tax statutes, land damages for change of grades or the widening of streets. These cases to a less conscientious lawyer tended to become routine. To most they palled at some stage and, once a competence was gained, the active practitioner aspired to a place on the bench, public office, or a staff that would take the wearying details from his shoulders. Johnson never lost his zest for the game; he never hankered after other fields or yearned for seemingly wider horizons. The political pot was boiling in those years. Other lawyers were organizing movements with imposing titles like the "National Republican League," a "Civil Service Reform Association," and the "Republican Invincibles," the last described by a hostile pen as "Invincible in Peace, invisible in W a r . " These names usually covered a few ambitious souls like Wayne MacVeagh and Samuel Pennypacker, who knew the way to public office. A score of independent and reform movements had equally few leaders and narrow aims. Johnson always kept a finger on the pulse of politics; it was part of his duties. In many instances he was called upon to represent city, state,

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and county officials; partisan conflicts and bitterly contested elections sent an occasional client into his office. But none of the usual causes that impelled so many lawyers to scramble for public honors distracted him from his private practice. His fees were ample for all his needs; his home life induced no itch for adventure. He had the happy but supremely rare faculty of contentment, the product of a healthy body and love for his work. To his mind, schooled in the most delicate nuances of the law, no two problems were the same. Each was fascinatingly different, and each was an episode in the absorbing story of the law. He knew all the bosses and politicians of the day—McManes, thrifty Irishman who ruled his city and wrested a fortune from gas, street railways, and crooked deals; Simon Cameron and Matthew Quay, who "swung" the state. He noted their satellites, imitators, and opponents. He watched with detachment the Committee of One Hundred and the Liquor Men's League, and knew his way about. But he also saw that the country and the men of industry and finance were greater than the bureaucracy that tried to control them. Clearly the future lay in the lap of "big business," even as a generation before the major rewards had gone to statesmen and office holders. Litigation in the courts continued to be heavy and of much variety. Johnson handled a generous share of the business; he wielded a stout lance, but decried litigation for its own sake. Consulted by former Judge Gordon, who was counsel for the receiver of a defunct building and loan association, as to the possibility of avoiding payment upon a guarantee, he was quoted: "You may defend this action, and pay after two years' litigation, or you can pay at once." Needless to say, payment was made forthwith. On another occasion he had listened to an old client justify his

serious accusations against a business rival. "You have libeled this man," was Johnson's sole response. "Now pay him," he added, and refused to take the case. On the other side of such quarrels, he was equally loath to take legal action. Asked by a prominent citizen to bring suit for slander, he discouraged any resort to law. "You can sue these people for slander," he advised, adding drily, "but that won't stop them." In cases of moment it was an even chance that Johnson would be found heading the array of counsel on one side or the other. As the years went by, his opinion was sought almost invariably in financial matters involving the cities and counties of the state, and their powers to borrow money, to undertake improvements, lease or sell franchises. His attitude in these matters was entirely matter-of-fact and always constructive. His work took him more frequently to the federal courts, and in spite of his own inclinations to Washington; wherever possible, he merely filed a brief, leaving to Frank Prichard the actual argument.

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However, these cases now reflected the burning questions of the hour, with public excitement rising to high pitch and presaging the conflict of public and private interest that was moving to a climax. The Trust Era had drawn nigh. A strictly ethical lawyer from Oil City, Samuel C. T. Dodd by name, had in popular imagination reached into Holy Writ for a device to combine vast industrial interests under single direction. Actually, he had merely used a well-worn legal concept to deal with the new forces of expanding industry. Favored by sheltering tariffs, and in some instances by private practices and public hand-outs, both sinister and corrupt, combination in essential commodities had proceeded at a great pace. A vast prosperity accompanied by a great discontent marked the late years of the eighties. Rising prices with wages stationary brought strikes and riots in the cities; from the farming districts, faced for the first time in a generation by the double misfortune of a short crop and low prices, came a new agitation for cheap money. In these years the writings of Henry George held the attention of the nation, and on the basis of his Progress and Poverty, he made a real fight for mayor of New York City. Trusts as an issue came to the fore with amazing suddenness. They were not mentioned in the 1884 campaign, nor in the state conventions of 1886, but by 1888 the denunciation of the trusts was a separate and conspicuous plank in the platform of every political party. Anti-trust agitation was more than a simple fight of the people against Big Business. When early in 1888 Franklin B. Gowen was appointed by a Committee of the House in Washington to investigate the trusts, exSenator Scott, solicitor of the Pennsylvania Railroad Company, objected on the ground that Gowen was the retained counsel of the Tidewater Pipe Company, rival of Standard Oil. For over a decade sugar, lead, rope, oil, whisky, and salt had been combined into associations under single management. In the overcapitalized and highly competitive field of street railways and the railroads, leading interests had long been in agreement to maintain rates, avoid cutthroat competition. In Philadelphia, Johnson's services were taken up with every aspect of the life of a great city. The giant figure of William Penn, gazing northeast toward the site of his treaty with the Indians, overlooked hundreds of homes, stores, factories, streets and avenues with which the lawyer had been concerned. The expansion of town and city bore at many points the imprint of his hand. Street improvements, rail and trolley services, monuments, office buildings, new and old industries, at some time had challenged his skill. It might be a simple easement or an obscure ordinance; a construction contract or a financing agreement. If perchance a section of the city had been opened and built without

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THE FAMILY GROWS UP his help, some of the residents h a d consulted h i m f o r their purely personal difficulties. As a result, the lawyer's contacts with the active spirits of the city were m a n y , and sometimes confusing. T h e imbroglio in the Union L e a g u e had been a m i n o r strain upon a few of the many friendly associations that he maintained in every stratum of the city's society. It merely emphasized the c o m p l e t e objectivity with which his duties were performed. During the same period a dispute in another organization only a few doors away made h i m counsel for many of his friends, and opposed to others e q u a l l y numerous. T h i s engagement was the affair of the unmusical stockholders of the Academy of Music. S i n c e its beginning the city had been proud of its music appreciation. T h e Academy of Music at B r o a d and Locust Streets, which was built in 1 8 5 2 , epitomized the civic enthusiasm for this higher art. It was modeled on L a S c a l a of Milan, its acoustical design a faithful copy of the o r i g i n a l . T h e funds f o r the realization of this p r o j e c t had been raised partly by the sale of stock. W i t h the purchase of five shares the stockholder received a perpetual, free, and transferable ticket of admission to all musical events at the Academy. T h i s permanent seat was a special privilege in lieu of dividends, which in the early days had been held out as an inducement. In the course of time, the stockholders' seats proved to be the sole benefits to subscribers. F o r these subscribers, the Directors of the Academy set aside seven rows of seats. After the novelty of seeing and being seen at the Academy, some stockholders c o m m e r c i a l i z e d these privileges. T h e y sold their seats, but retained actual ownership by an irrevocable power of attorney executed by the purchaser b a c k to them at the same time. W h e n the music-loving stockholders became aware of what was going on, they were furious. A m o n g the many lawyers in the Academy, they found ready spokesmen. I f only bona fide stockholders availed themselves of the seat privilege, the seven rows would be ample f o r all stockholders. W i t h the s h a m transfers to outsiders, however, the crowded condition of the reserved section often left the music-loving stockholders without seats. T h e issue was h a r d l y momentous. T h e eminence of counsel engaged reflected the indignation of the unseated music p a t r o n s — a n d the social status of the cause. W a y n e M a c V e a g h represented the erring stockholders and George W . B i d d l e the Academy of Music, which had to defend their rights of assignment. Samuel G. T h o m p s o n , later j u s t i c e of the State S u p r e m e Court, pleaded for the c o m p l a i n a n t s . J o h n s o n submitted a printed argument f o r the great b o d y of stockholders who stood with them. T h e position of the recalcitrant stockholders, who had sold their mu[143]

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sical rights for silver, was simple. The ownership of a five-share stock certificate gave the privilege of a seat. It was perfectly justifiable to transfer the certificate, i.e., in this case, the seat. The agreement to re-transfer the stock was a matter concerning the parties of the agreement, and of no interest to the corporation itself. This legal argument was so trenchant that the Academy itself, having transferred the stock on its books, had to recognize the new holder. The juggling of seats had begun within a few years after the opening of the Academy, but in the early days few stockholders engaged in this practice. By the 1880-81 season, however, the number of tickets put up for sale passed the hundred mark. The subscribers scarcely knew who would be sitting next to them—a horrible thought. There was a technical case on both sides; the court adopted the plea of the complaining stockholders, that cases relating only to business corporations should be controlling. It went into the history of this corporation, and stated that its aim was to provide a more convenient place for operatic and dramatic performances; that the enterprise was not expected to be financially profitable, and had not been so. It emphasized the seat privilege as the important perquisite of the stockholders, to whom the chance of a dividend must have been incidental and remote. It was pointed out that if transfers for a year were in order, even weekly and daily transfers might be upheld. The Academy would become a Mecca of outsiders. The outraged stockholders had paid for, and thought they had secured, the best opportunity for hearing good music; the sale of tickets in their reserved section jeopardized, or even deprived them of this opportunity. The fact that the court recognized this stand proclaimed music as an important factor in the community. The case was taken to the highest court, which also dug under the form and letter of the transfers, and declared them to be contrary to the spirit of the enterprise. That ended the controversy, with the imposition of most of the costs upon the Academy because it had sanctioned the system of transfer. Not all the troubles of the Academy were caused by those who did not "belong." Within a year, further discordant notes jarred the perfect acoustics of its auditorium. Again Johnson ushered the Academy members into court. This time he represented the leaders, now split into two factions as a result of a stiff fight over the election of directors. The outcome of the election hinged on whether cumulative voting was to be insisted upon, or whether, as in previous elections, a majority vote should rule. Among those excluded from the directors' ranks by the cumulative ballot was George W. Biddle, counsel for the Academy in the previous litigation. The contest was nothing to rouse the interest of the man

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THE FAMILY GROWS UP around the corner, but the notable names on both sides showed c l e a r l y that the socially elect could stage a fracas of their own. J o h n s o n , assisted by T h o m a s Hart, J r . , produced pages of c o r p o r a t i v e election law f o r the cumulative sponsors. In fact, in the Common P l e a s Court, the decision ousting G e o r g e W . Biddle, who was represented by his son G e o r g e Biddle, was handed down by Craig Biddle, who adopted J o h n s o n ' s position. B u t in the S u p r e m e Court the Common Pleas decree was reversed and the contesting directors were ordered elected. In M a r c h of that year came the worst blizzard in the city's history. A month later a new opera house was opened at B r o a d and M o n t g o m e r y Avenue, and a new Chief Justice was on the S u p r e m e Court in Washington. M e l v i l l e W . F u l l e r , a Democrat of p r o n o u n c e d obscurity, proved to be the appointee after much speculation, in which J o h n s o n ' s n a m e had figured, in spite of his well-known R e p u b l i c a n i s m . T h a t m o n t h saw the death of B e n j a m i n H a r r i s Brewster, who h a d p l a y e d a real part both as lawyer and civic leader. In the late spring J o h n s o n ' s mind turned to the crop of boys who were leaving school and c o l l e g e ; in J u n e he heard his son deliver the law oration at the graduation of his law class at the University. T h e latter had chosen f o r his topic "Constitutional Restraints upon the Uncontrollable Powers of the M a j o r i t y . " T h e s u b j e c t reflected a certain inspiration from his distinguished father, who had good reason to be proud of Edward Morrell. T h e young man was b r i l l i a n t and k e e n ; had he wanted it, a career at the bar would have been his f o r the taking. B u t his broader training had not prepared h i m f o r so rigorous a life. He had his mother's gift for social contact, and also showed an e a r l y interest in politics. S h o r t l y after his entrance into J o h n s o n ' s law office, he m a r r i e d Louise D r e x e l , third daughter of banker F r a n c i s D r e x e l . S o o n after this event, Mrs. J o h n s o n and her two daughters left f o r Newport and thence after a short stay to E u r o p e f o r the P a r i s E x p o s i t i o n . H e r husband j o i n e d them in P a r i s , intending to tour Germany, Norway, and Sweden. L a t e in August, however, he was in a minor accident in P a r i s — a c a b struck him. News was flashed to his home city in exaggerated f o r m ; one report said he had been killed. T h e family was much disturbed by the publicity and tried to quiet the rumors. T h e incident caused such widespread anxiety that J o h n s o n was able to l e a r n at first hand how deeply he was loved by a vast circle. T h e j o y s and sorrows of a growing f a m i l y as well as the demands of a vast practice were now his. Although h e avoided public office and the votive honors of his own profession, he frequently endorsed candidates for j u d i c i a l vacancies. Often, too, he lent his name to causes and

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movements that voiced a real public desire or a sincere indignation. Sometimes—legend to the contrary—he appeared at a big dinner. At the nominating convention of 1890 he was chosen to present the name of Judge Finletter, who had already served for twenty years. His talk on that occasion was long remembered by his hearers, so far removed was its tone and tenor from the run-of-the-mine speech. From the vantage point of a busy lawyer, he said: The Judge, fresh from the Bar, however great his learning, for some time remains an advocate. He alone who has held the seat of justice for years, really becomes a judge. What at the outset was an effort, becomes to him second nature. He need trouble himself only with the really difficult problems of law, for he will have solved the innumerable points which constitute the bulk of legal controversies. After a long life in the judicial atmosphere, it is impossible to view the matters to be decided in a partisan spirit. He praised the jurist in these words: He never smiles on the strong because of their strength, nor frowns on the weak because of their weakness. In his Court, the poorest suitor and the most powerful corporation stand on an equality. His concluding sentence gives a lucid indication of the trial lawyer's worries in the nineties: Being a man of positive opinions, if he errs, he gives the party aggrieved the fairest opportunity for review in the Supreme Court. The Bill of Exceptions which he seals, contains not what he ought to have said, but what he did say. Johnson was conscious of the ills of the profession and aware of the major diseases which beset business. When called upon for help or a diagnosis, he threw his knowledge and strength into his task; but he never campaigned for reform. He was no zealot, out to make over society into some pattern fixed in his own mind. Romanticists, molded by fate into reformers or revolutionists, were more frequently in the public eye. But quiet craftsmen who preferred to work from within accomplished more and were more dependable in a fight. The lawyer addressed himself only to those qualified to pass judgment; it meant nothing to him that though he was sought by attorneys from all over the country, his name was little known among the great mass of citizens outside his own state. Beyond the Alleghenies David T. Watson was indeed called "the John G. Johnson of Pittsburgh," but from that point he was unheard of, like Reverdy Johnson outside Maryland, or Joseph Choate a hundred miles from New York. He avoided, too, the stigma of specialization in performance as well

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as in his work. Even such branches of the law as patent cases, admiralty matters, and criminal, were on his list. The automobile was not yet providing law offices, as well as hospitals and cemeteries, with constant material, but horse thieves were a reality; the brewers' big horses figured frequently in the books. If he liked a case Johnson took it, and his predilection rested only on an interesting point of law, and not on the amount involved or the parties concerned. He had his preferences, of course. The new Interstate Commerce Act focused attention upon trunk-line pools and the alliance of the rail carriers with the coal operators. The exploitation of municipal franchises for electric and gas companies, street railways and bus lines was blossoming in full flower. Attacks upon utility corporations by courts, commissions, and communities, by the civic-minded and the personally ambitious followed with increasing frequency. Johnson was consulted by irate communities, by municipal authorities, by utilities operators and magnates; he expounded the law applicable to each case, and if it was necessary he went to court to see it enforced. All the while he was growing just a bit faster than the community and the nation. Sometimes he lost cases he thought he should win; but mainly each blow of his legal hammer upon the judicial anvil was true. The general public—like the profession—was fascinated by the occasional case of special piquancy or oddity. But the major miracle was the perfection of the daily task, the unending stream of cases, the magnificent effort that never faltered. So practised an advocate as Horace Binney had retired years before, admittedly fed up with the daily task of persuading recalcitrant juries and intransigent judges. But Johnson continued to give as close attention to trifling disputes as to matters of urgency, and the millionaire had to wait his turn if the hundred-dollar man was the earlier in his call. Often he was chided by his associates for giving so much valuable time to small matters, but he would reply: "The only way to conduct a successful practice is to treat all clients alike, irrespective of the amount involved." Nor did he scrutinize too closely the merits or the chances. He felt it was the right of every morally clean litigant to be heard, and after he presented his case, he left the rest to the court.

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XVI

Tremendous Trifles and Some Damned Dead Horses B A C K in 1797, one Jacob Heltzheimer sold his house in old Philadelphia to Alexander Marshall. The latter contracted—by deed duly recorded—to pay as part of the purchase price a yearly rent of "Twenty-eight and a half Spanish Milled Silver Dollars, weighing seventeen pennyweight and six grains, and one half of such a dollar, on the first day of the Months of April and October, every year, forever." The word "forever" was not mere legal verbiage; the half-yearly payment secured upon the house was an "irredeemable ground rent" peculiar to Pennsylvania, having its origin in English law. In effect, the ground rent was a first mortgage. As the amount was small and real estate values increased, the semi-annual payment became an increasing nuisance. By 1906 Spanish milled silver dollars were as scarce as pieces of eight; fourteen and one-quarter such coins were worth only $9.25 in good American currency. In that year Harry Weinreich acquired the house and wished to retire the ground rent; it interfered with the proper financing and sale of his property. He found the agent, who represented the rent owner, deaf to any such suggestion. Mary Milligan, his principal, appreciated an excellent investment. It had survived half a dozen wars and a dozen depressions; she wanted no other. The rent was irredeemable; she stood pat on the letter of her deed. Thereupon Weinreich consulted his lawyer. The latter examined the county records, and studied the crumbling pages of the covenant with tender care. A brilliant thought flashed across his mind. On October 9, acting under his instructions, Weinreich tendered exactly fourteen and one-quarter Spanish milled silver dollars. As Mary Milligan was handed these heavy coins, she was astonished as if by a visit from Captain Kidd or another pirate of the Spanish Main. When [148]

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she recovered, her ire mounted. She indignantly refused the proffered coins and scurried to her lawyer, who happened to be one of the bright young men of Johnson's office. Three days later she started suit to recover exactly $14.25 with interest from October 1. The fact that Marshall had been dead for nearly a century did not keep his name out of the case as defendant with Weinreich. The haste with which suit was brought would seem to indicate that his client's indignation had overcome the lawyer's calm appraisal of the situation. However, the Common Pleas Court also ruled that dollars meant dollars, irrespective of the words specially designating Spanish milled silver dollars, and entered judgment for $14.25. Any doubts the court might have had were dissipated by the vigorous contention that since the tender had not included interest of 1^4 cents for the nine days, it was invalid. The case was appealed to the Superior Court. The young lawyer looked more carefully at the language of the ground-rent deed, and then dug more deeply into the old cases. He became less sure of his ground and turned to Johnson for help. The latter pursed his lips, knitted his brows, and prepared to face the seven justices of the higher court. His argument was the peculiar combination of sheer bravado and scholarly citation reserved for difficult cases. "In the absence of evidence in the court below as to the value of Spanish dollars," he urged, "the court is justified in assuming that their value is the same as the currency of the United States." This assertion failed to impress. "The Court must take judicial notice of the fact that the Spanish milled dollars are a debased currency," observed one of the judges icily, and cited several cases which his eye had caught in the brief before him. The lawyer was thus thrown back to his l 1 /! cents as the last line of defense. He had to sponsor the contention that the failure to tender this amount was not a mere bagatelle. "If this is so," he shouted, "just what amount of interest must be due on a debt before it ceases to be a trifle?" "If the court is impressed by the smallness of the amount of interest claimed," he went on, "and it must be remembered that that is the matter directly in controversy, I refer to the case of Pindar v. Wadsworth, 2 East 154, where the plaintiff recovered one farthing (half a cent) damages, that being the actual amount by calculation." The justices were unruffled by the mention of these extraordinary figures; the lawyers in the courtroom cocked their ears for further details. His opponent cited the hoary legal maxim de minimis non curat lex and indignantly declaimed against taking up the time of the court with such an issue. In due course, the Superior Court ruled against Johnson— [149]

JOHN G. JOHNSON holding that the tender, even without the l 1 / ! cents, was g o o d . T h e temperate l a n g u a g e of its opinion merely s a i d : If the question turned alone on the item of interest alleged to be claimed, we would hold that the demand of one and one-quarter cents even as interest was too s m a l l and trifling with which to vex the courts. T h e smallest coin known a s current money c o u l d not be used to make payment of the disputed item. However, it would be a mistake to infer that the lawyer's a p p e a r a n c e in the high court represented only his itch f o r a fight. Actually there was g o o d reason for b r i n g i n g suit and c a r r y i n g it to final judgment. T h e vaults of the trust c o m p a n i e s of the state were filled with many such ground rents, and the h a p p y idea of Weinreich's attorney meant that the income f r o m these yellowed rents would be cut nearly forty percent. The stakes were high. In effect, the decision spelled the end of many of these contracts, which up to that time had been "irredeemable." At another time, J o h n s o n took a case involving exactly $ 1 2 . 0 0 f r o m the Orphans' Court to the S u p e r i o r Court, and thence to the S u p r e m e Court of Pennsylvania. A g u a r d i a n claimed credit for this s u m , which he had p a i d to a surety c o m p a n y for the bond he h a d given under the law. Both the Orphans' Court and the S u p e r i o r Court had disallowed the claim. The case d r a g g e d on f r o m 1895 to 1 9 0 1 ; in these six years J o h n s o n gained many millions for Henry Clay F r i c k in his epochal fight with Andrew Carnegie, and won several hundred other battles for the books. He finally won his $12.00 too, and in a long opinion the S u p r e m e Court rewarded his tenacity, reversing the rulings of the lower judges. T h e twelve-dollar claim was fought on the g r o u n d that the special state statute that authorized it was unconstitutional. It violated both the Constitution of Pennsylvania and of the United States. If this were true, it would affect the procedure in all estate matters. This, and not the amount involved, was the reason for the long court battle. T h e criminal cases which Johnson handled were equally significant. U s u a l l y they involved a small, and in s o m e instances a nominal, fine. T h e spectacle of a distinguished lawyer battling over such s u m s in the highest court perplexed the layman. However, the final ruling of the high court decided not only the disposition of a few dollars, but the constitutionality of a special regulation or statute. At one time such ordinances fixed a m i l d penalty for dealing with a foreign insurance company without authority f r o m the state; at another time they regulated the entire profession of optometry. But the g a l a x y of lawyers that took the a p p e a l of T h o m a s W. M c C o m b f r o m the sentence of a justice of the peace of D e l a w a r e County to

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the Quarter Sessions Court, and thence to the Superior and Supreme Court, included stars of the highest magnitude. The case straddled the years 1907-10, when Johnson, among other matters, was taken up with the difficulties of Standard Oil and American Tobacco. With him were William I. Schaffer, the leader of the Bar of Delaware County—later Chief Justice of his state—and the office of Henry P. Brown. The latter office represented large corporations and important interests. Frequently Brown visited Johnson at the end of a long day for a half-hour's exchange of current gossip, for which the latter had an attentive ear. Through the open door came guffaws of loud laughter as the two men exchanged notes on current happenings in the world of finance and society. With Johnson this was not merely a curiosity inherited from his blacksmith father. The latest tidbits of gossip and scandal were a part of his legal preparedness. Likely as not, one of the parties to each incident would beat a path to his own door. The three distinguished counselors—Johnson, Schaffer, and Brown— were lined up for the defense of their client, who had been fined by an alderman for using an automatic gun to hunt wild duck in violation of an Act of Assembly. The fine was exactly fifty dollars, and the legal fight in the Common Pleas, which reversed the aldermanic ruling, and in the Superior Court, which sustained it, seemed out of all proportion to the gravity of the offense or the size of the penalty. In the Common Pleas, where Schaffer upheld McComb's right to use a high-powered gun, he fought alone. In the higher courts, Johnson and Brown were ranged beside him. The latter's name showed clearly that the shooting involved more than wild duck, for his services were performed only upon substantial retainers, and not—as often with Johnson—for mere principle. Thus the heaviest artillery was brought into play. But it was silenced by the double barrage from the Superior and Supreme Courts. The key to the mystery of why two eminent lawyers should invoke the help of Johnson in a duck-shooting episode of the wooded hills of Delaware County was not difficult to find. The large powder companies, which were sprawled in and about Chester and Wilmington, were keenly allergic to ordinances that curtailed the use of such sporting weapons as automatic guns and high-powered rifles. They attacked the constitutionality of these regulations; they pleaded the hunter's right to use his gun, and labeled the regulation an arbitrary interference with a property right. The high courts defended the Act with equal zeal. Against the plea for a hunter's paradise they said: The preservation of game and fish has always been treated as within the proper domain of the police power, and laws, limiting the season when birds and wild animals may be killed, and had for sale, and prescribing the manner in which they may be taken, have been repeatedly

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upheld by the courts. The duty of preserving the fish and game of a state from extinction, by prohibiting exhaustive methods of taking it, or the use of destructive instruments as are likely to result in the extermination of the young as well as the mature is clear. It would be erroneous to deduce that all the apparently minor cases in which Johnson was retained involved issues of major importance. The attorney who practised his profession with a uniform insistence that the twenty-dollar client was entitled to the same attention as the industrial magnate was bound to find himself in strange situations. But after his first few years at the bar, with small-town traditions of practice definitely behind him, the influx of substantial causes was too great for the luxury of litigation for its own sake. The mind of Johnson was too practical for such leanings. Between the lines of the bare court records there were usually more vital issues. He fought for a few hundred dollars for a ship broker who was not paid for his services, and wrung from the judge the pronouncement: "Every man is to be protected in the secret of his art or calling." He battled stoutly against a fraudulent scheme to deprive a few workmen of their lien as mechanics. But by and large he tried to bring about an adjustment of small controversies; his appearance in court was a sure indication that the effort to avert open conflict had failed. Several additional groups of actions could be noted in the apparently unimportant suits Johnson fed into the highest courts. There was ever present the "test case" in which a general principle, governing many transactions, was involved. There was also the not gravely consequent issue of an easement or an attachment or a fraudulent sale, where it was desirable that the law should be clarified. The instant situation might involve little, but the busy practitioner wanted a definitive ruling for future guidance. Finally there was the occasional assault upon a company or business man, against whom the lawyer cherished a longstanding grudge. Or it might be one of the half-dozen lawyers he detested. Such cases were an opportunity, and he "fairly licked his chops over the prospect of locking horns in furious combat, with no holds barred," to quote an associate. All these apart, there still remained a residue of purely incidental disputes. These, mixed with an increasing number of vital cases, furnished a strengthening ingredient to the whole mass. They attested the significant fact that the lawyer's interest concerned itself with facts and principles only; there was no thought of monetary sums or of personalities. Not a few of his great performances had lowly beginnings. The famous Paul and Schollenberger cases, which moved from the Quarter Sessions Court of Philadelphia to the Supreme Court of Pennsylvania, and thence to the Supreme Court of the United States, sprang from the [152]

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sale of a ten-pound tub of oleomargarine. The ensuing litigation was notable for many reasons. A grave constitutional question—the right of Pennsylvania to prohibit the sale of "oleo"—was involved. Johnson was called in by George S. Graham, the county District Attorney—a lawyer of impressive stature in any company—to act for the public interest. The fight was won in Harrisburg, but finally lost in Washington. The highest court said: Oleomargarine has for nearly a quarter of a century been recognized in Europe and the United States as an article of food and commerce, and was so recognized by Congress: and being a lawful article of commerce it cannot be wholly excluded from importation into a state from another state where it was manufactured, although the former state may so regulate the introduction as to insure purity without having power to totally exclude it. In the many cases in which Johnson gave his services to his city or state, he invariably refused to accept a fee. He followed the same rule where he was retained by public institutions or private charities. He acted as counsel for the executors of the estate of George Elkins, who had amassed many millions in the street railways of a score of cities. After grappling with the problems of administration, the trust officials, who had constantly consulted Johnson, found that his fees were almost nominal. The lawyer had made due allowance for the many charitable bequests in the will. The prominence which he received in cases involving giant corporations obscured the many instances in which he acted for municipalities and public authority. He was consulted regularly by the officers and directors of boards of health, education, and other essential services. Savings banks, insurance companies, and building associations came to him as a matter of course. The taunt of "corporation lawyer" was flung at him only by outsiders who knew neither his vast versatility nor his middle name. The occasional "big" cases, over which the voice of the national press grew hoarse with headlines, were merely the froth and foam on the deep waters of his practice, that numbered lawyers in hundreds and laymen in thousands. Victory and defeat were incidental to the role that Johnson played. The number of reversals that he secured in the high courts ran into the hundreds. But the real function of the lawyer was to present one side of each weighty controversy with ultimate proficiency. He was on all sides of mooted questions, acting more nearly as a part of the court than as a paid advocate. For this reason the rebuffs that he suffered in no wise impaired his usefulness. He lost his fight for McComb and his high-powered rifle; but when the du Ponts later required the ablest of counsel, they hired Johnson. The slight jolt meted out by a ten-pound tub of oleomargarine did not dampen the ardor of important tobacco

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interests to retain his services when a similar, but not the same, legal point was raised by the sale of a single package of cigarettes. Johnson had unsuccessfully spoken for the right of the states under their police powers to interfere with nationwide sales of "oleo." Another of the famous "Original Package Cases" started in a small town in Tennessee, when a new customer stopped at the little shop of tobacconist Austin, guarded by its wooden Indian which looked vacantly over the heads of passersby. The visitor was exact in his demands; he seemed to know what he wanted and why. Austin handed over the small packet of ten cigarettes, and dropped the lone silver coin mechanically in his till. The stranger placed the little packet carefully in his portfolio. Then he flashed his badge, identifying himself as a police officer of Monroe County. "You are under arrest," he said quietly. The man behind the counter evidenced no surprise. " I kinda thought it was the law," he said, reaching for his hat. "The company will take care of this," he added. In the months that followed Austin learned many things. He found that the little package was three inches in length and one and one-half inches in width. He also understood that his violation of the laws of his state would cost him a fine of $50.00. In his brush with the law, he found allies, too, better prepared for the long fight that lay ahead. Soon he was only a name in the case, for the actual fighting was in the hands of a John Johnson of Philadelphia. Perhaps it was well for Austin to be merely a bystander thereafter. The long discussions of whether the little packages, unboxed but thrown loosely into baskets, were original packages within the meaning of the law, were well over his head. He might have resented the final ruling that such importations were made for the purpose of evading the law prohibiting the sale of cigarettes. He would have been further mystified by the distinction the high court made between the vending of tobacco and the sale of "oleo." But the difference was fundamental. It meant not only that the Tennessee statute was a legitimate exercise of the police power for the protection of public health, but that his noted attorney was thrown for a further loss in tobacco, though he was now on the opposite side of the general issue. By the court's ruling, tobacco, though a legitimate article of commerce, was grouped with intoxicating liquors as proper subjects for police regulation. There was slight solace in the refusal of the court to hold cigarettes more noxious than other forms of tobacco, but for the time the importation of cigarettes could be prohibited entirely, while " o l e o " could merely be regulated for purity. In the nearly two thousand cases Johnson piloted to the high court of his state, and the five hundred he brought to Washington, Trenton, Albany, and other capitals, there were many surprises. In most he nailed

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down the victories secured in the lower courts; in not a few he strove vainly to uphold what seemed excellent logic. In several instances the judges finally adopted his contentions, but not soon enough to furnish much comfort to him. However, one stream of decisions seemed to flow more strongly with the years. In these, Johnson enjoyed the dubious distinction of taking many apparently hopeless cases to the higher courts. The reasons were the lawyer's stern sense of duty and incurable kindness of heart, not unmixed with obstinacy. "No one," wrote Carson, "softened the edge of defeat for so many young lawyers." The result was that the maturing advocate developed an excellent deathbed manner, like the noted physician who is called in only in extremis. But his certificates represented no casual and pompous pantomime. His fighting spirit was asserted if there was the faintest glimmer of hope. But if his exuberance distorted his own perspective to a slight degree, it did not always sway the cool judgment of the courts. Walter Penn Shipley, who knew him intimately for many years, reported a revealing incident. Robert H. Neilson was one of the leading editors of Weekly Notes of Cases, which for nearly twenty-five years recorded cases of interest in the city and state courts. Whether the venture ever showed a profit was a guarded secret, but all the editors acquired a good knowledge of the law and an accurate appraisal of legal talent. Many achieved distinction, and not a few ascended the bench. Meeting Johnson one day, Neilson remarked that, in looking over the Reports, he was astonished to see that far more of his cases were reported than those of any Philadelphia attorney. The barbed point of this observation struck home; the latest issues had contained a series of cases in which his appeals to the higher courts had suffered more than the normal rate of miscarriage. "You are right," replied Johnson curtly. "These Philadelphia lawyers expect me to ride all their damned dead horses." This was the real explanation of many a futile argument before unresponsive justices. The legal fraternity understood. "Most of the lost cases," they collectively opined, "had expired before they were dumped on Johnson's doorstep." But individually they continued their quest for the miracle man; and the wholehearted sympathy and generous help they received from Johnson remained unabated. There were, however, dead horses of another color, with which Johnson's name was associated—in part improperly—for many years. These were the emaciated horses that, it was charged,* made up a part of the investments of the Wideners, the Elkinses, and other later-day * Time Magazine,

November 27, 1939.

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prominent families in the small traction companies that were running their street cars over Philadelphia cobbles back in 1874. The dead horses had long gone to the glue factory, and the forty-nine underlying companies had been merged into the notorious Philadelphia Rapid Transit Company, when in 1902 there took place what was termed a shocking combination of political skulduggery and legal cunning. By this account the Legislature had bestowed the street franchises as a gift to the company: upon these and an astounding paucity of tangible assets a series of leases had been drawn up—ironclad they proved to be—by which the Transit Company promised to pay the underliers $7,100,000 a year for 999 years for the privilege of running its street cars over their right of way. Between 1902 and 1939, stockholders of the little companies collected $250,000,000 in rent on their leases, and the word "underliers" became synonymous in Walnut Street with lush dividends. In the boom days of 1928, continued the journalist, a neat deal was hatched by which the city would condemn the leaseholds for a handsome $149,000,000. The proposition was opposed by S. Davis Wilson, who rode into the mayor's office, but wrecked his health in his long battle against the heaviest money bags and the most powerful political machine in the state. As late as 1939, lawyers for the companies claimed that their property was worth $35,000,000, but a court only valued it at $6,000,000. Nevertheless, the fiction of a thousand years of rent payments for horses on their last legs proved a formidable barrier. After thirty years' onslaught upon these leases, the public interest secured a high court ruling invalidating them. Throughout the long fight, the lawyers for the traction companies hurled at the courts the statement that the contracts had been drawn up by John G. Johnson. The traction stockholders eventually emerged from a Federal Court reorganization with nearly $32,000,000 in bonds and $12,300,000 in preferred stock of a new transit set-up. Johnson's name had received the only imputation of low cunning ever lodged against it. Under the caption " 9 6 2 Years Lost," Time characteristic style:

Magazine

wrote in its

In 1902, a portly, pot-bellied, black-mustachioed Philadelphia lawyer, named John Graver Johnson (tops among United States lawyers and trust practitioners of his time) drew up a noteworthy document . . . Later it commented, " T o the shade of John Graver Johnson, the decision was a blow . . . " Such were the facts of a notable case, and the unflattering portrait of the lawyer as they appeared in the pages of Time. The facts, as will be seen, were woefully distorted, and the picture entirely at variance [156]

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with the real Johnson. The lawyer was portly, but, though he defended many a corporation, he never sported one. If the figure of $140,000,000 in 1928 seemed large in contrast with the final court appraisal, the drop was certainly no more than suffered by many a stock and bond on the Exchange. In fact, regular payments of the rentals for over thirty years indicated an earning capacity beyond that conferred by a few dead horses. A careful reading of the long record in the Federal Courts shows clearly that by 1902 the right to run trolleys over the streets of Philadelphia, which had gone begging in the 1860's and 1870's, was exceedingly valuable. It is also clear that Counsellor Johnson drew up long leases between the original independent companies and the new operating company. These complicated agreements covered so many contingencies that the lawyer could not have taken his mind from the strictly legal phases, even if he had so desired. One who undertook to delve into the history of each client would soon find himself without legal business. By 1902, and even more so as the years went on, the securities of the underliers were in the hands of so many trusts, widows, orphans, and charities, that any discussion of the ethics of the original franchise was quite out of order. When, as finally happened, a severe depression impaired the companies' position, a program was worked out by the Federal Court for the reorganization of the Company, with the public interest served by a number of brilliant attorneys.* It was not the only occasion during the 1930's that Johnson's name was bruited in the courtroom. In at least a dozen cases a higher court buttressed its citation of a precedent, either by noting that the decision was won by him, or that it was laid down in spite of his vigorous opposition. In at least half that number the courts referred to covenants and agreements that Johnson had drawn up to indicate their complete faith in their integrity, as well as their legal validity. * Louis E. Levinthal, Felice E. Darkow.

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Building an Art Collection H J ART.Y in 1892 the minor mystery of Johnson's European excursions was cleared up. For over ten years, acquaintances had recognized the lawyer's bulky figure in the capitals of Europe. A few told of seeing him on the benches of the Louvre, oblivious to everything but art. Only his intimates knew that he was deeply interested in painting, and that most of his summers abroad were spent in art galleries and museums. Even they were but dimly aware that he was gathering an important and valuable collection. The bar knew that the income from his practice was high, and his expenditures were modest. However, there was no realization of the scope of his collection, or the breadth of his interest. Only in important art centers and among competent critics were the aims of Johnson the collector understood. Years later Pennypacker, who knew as much as most, wrote: " H e has acquired a large fortune, having expended according to reports a million dollars for his pictures." At that date the collection had cost many times this figure; but it represented more than money. Before he joined the small coterie who were bringing to this country the art treasures of Europe, he had devoted himself to paintings and painters. He had studied their lives, their methods, in books, in galleries private and public, in the cities of Europe where they had lived and moved. He had found relaxation from his legal work in a pursuit that was equally arduous, but different. From the first he had enjoyed the contemplation of pictures. But the thought of capturing these fleeting pleasures spurred him to a serious examination of art history and values. Steadily, as he had built up his vast clientele, so he was acquiring his paintings. Once again he was pioneering. Interest in art was as restricted as had been knowledge of estate and corporate law twenty years before. The great transfer of the treasures of Europe to America was in its earliest stages.

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A few industrialists—Vanderbilt, Morgan, Hill, and Whitney—were buying heavily in foreign markets. The selection of their paintings was usually left to professional dealers, and their appreciation of art grew slowly. Most of these men simply transferred their business instincts to the art world; their bidding was inspired by the rivalry of the auction room. One great industrialist lumped his pictures indiscriminately in a sentence: " I enjoy them all." Others purchased without plan or purpose, desiring only the rare, the costly, and the unique. They turned early to the erection of magnificent mansions and museums for the display of their art bargains and triumphs. Many of these men were no doubt moved by a natural creative expression, which accompanied industrial expansion. Some felt only the power of owning, or even giving away, something too expensive for others to own. America had wealth, but no art; therefore, these mighty men would buy her art. Johnson's approach was different. He had grown up with a love for design and color. His mother, an untaught artist who confined her talent to practical expression, nurtured it through his youth as gently as their simple life permitted. The lawyer was deeply interested in character and motives that found their best portrayal on the artist's canvas. No bounding extrovert, he found it unnecessary to display his emotions in order to indulge them. There were few persons outside his immediate family who knew the sentiment and even sentimentality that showed the poet behind the lawyer. The man's picturesque profanity became tradition in the city. The sweet nothings he coined for his wife, by the fireside or over the telephone, were the source of repeated wonder to the few who overheard them. In the professional world Johnson always had been old beyond his years. In his home, he remained the big boy who refused to let dignity intrude on his boisterous romps with the children. Without doubt Johnson found in the collection of great paintings an outlet for natural springs of sentiment. There were other motives. But it was not until his collection had reached a considerable size through a decade of growth that any beyond his immediate friends knew him as an art patron. In the fall of 1892 he published his second, and final literary endeavor, a little volume privately printed and entitled SightSeeing in Berlin and Holland Among Pictures. The book was circulated among his friends who were interested in paintings. It went to art lovers he had met in the course of his travels, and to private collectors, many of whom had profited by his advice. The work revealed Johnson not only as a connoisseur, but as a confident critic, a man who had found happiness in an avocation and was humbly grateful for it. His book was designed to help others find

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similar pleasure. At a time when the urge for the collection of old masters was growing among wealthy Americans he added words of caution. "If names alone be sought for," he pointed out, "names and not. works of art will be secured at much expense of money, and with a certainty of future worry through challenges of genuineness." On the other hand, he realized that if nothing be accepted not beautiful in itself, and able to rest upon its own intrinsic merit, the collector must have enormous wealth, and also a degree of knowledge and experience possessed by few, if any, in this country. He warned that pedigrees were either manufactured, or, if genuine, usually began a century too late. "With care, taste, and experience," he wrote, "sufficient that is delightful and not too high-priced can be obtained, to enhance greatly the artistic value of a collection consisting mainly of modern works." He instanced the Secretan Collection as formed upon the correct principle of admitting everything good whether old or new. He added these words: It demonstrated that art is not of one century only, nor of one country; that the best art is nearly upon the same plane, and that it is possible to hang without jar, side by side, works of the masters of the seventeenth and of the nineteenth centuries. As it would be a mistake to form a modern collection with the idea that modern art is represented but by five or six men, so it would be to fill a gallery with old masters alone. Art is many-sided, of all ages, and of many men. Johnson knew that on the basis of moneys expended he could not vie with the greatest of American industrialists. He did not underestimate the importance of money in securing a notable collection. But he insisted upon quality as opposed to mere quantity. He condemned a private gallery at Rotterdam by noting that like most of our American collections it was unweeded and full of incongruities. He pointed to a lack of discrimination in the selection of artists represented and of works illustrating them. He realized early what many rich men only understood later—that a collection might be more valuable artistically, and even financially, if it contained fewer paintings. This was indeed to be the experience of his friends Widener, Havemeyer, and Frick. He urged representative paintings of great artists in preference to the more familiar and best-known examples of their work. The principles upon which he was proceeding were revealed in this little volume. They included an insistence that the less familiar paintings, those out of the ordinary style of the great artist, were more likely to display his best thought. He had high praise for the Mesdag Collection as a combination of considerable means and exquisite taste. He admitted that not all the works were of equal value, but noted that there was

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BUILDING AN ART COLLECTION nothing which j a r r e d or was offensive to the most fastidious. With r a r e perception h e wrote: Artists with the requisite knowledge to c o l l e c t are usually without sufficient means. Mesdag, however, whilst a painter of merit, is also a m a n of large wealth. . . . W e heard the door of the gallery close with that feeling of regret which comes to us as we lose sight, possibly forever, o f s o m e beautiful thing o f earth. In addition to an initial interest in art, J o h n s o n was also influenced by motives natural to those who amass wealth by sustained effort. T h e r e can be little doubt that the mind of the lawyer who had sacrificed much in his devotion to a career harbored certain misgivings. " W h a t compensation, what rewards, for the endless t o i l ? " was the query of his intimates and of his own conscience. These art masterpieces offered a partial answer. In seeing what had been obtained by the expenditure of money, he could not but feel that the collection of great works of art a f f o r d e d . a l m o s t the only avenue open f o r personal gratification of the huge incomes of modern times. " I t is told of the first J o h n J a c o b A s t o r , " he wrote, " p r o b a b l y untruly, that he asked a poor man, who had expressed to h i m his envy of his great wealth, whether he would be willing to work as hard as he did m e r e l y for boarding and c l o t h i n g . " " I f the story be t r u e , " he commented, " i t illustrates the necessity of knowing how to spend, as well as to earn, r i c h e s . " T h e r e was almost a lament in his final observation: I f m i l l i o n s give to their possessor nothing beyond what the man who could ask such a question seemed able to gather f r o m them, they do not compensate the exertion of vital f o r c e requisite for their attainment. J o h n s o n became an outstanding authority. His services were requisitioned by other collectors. F r o m time to time his advice was s o u g h t — but not always f o l l o w e d — b y the Wideners. His tastes were wide, but he leaned toward the Italian Renaissance, the Eighteenth-Century F r e n c h and the Nineteenth-Century F r e n c h and Dutch S c h o o l s , and particularly the Flemish. His thirst f o r art knowledge lured him to E u r o p e summer after summer. W i t h the first heat wave that started the annual exodus of industrial tycoons f r o m the city, M r . J o h n s o n , the eminent attorney, turned over the cares of the office to his assistants and hastened up the g a n g p l a n k of an ocean liner. F o r the week or ten days at sea, he relaxed to the tempo of the season's c r o p of detective stories. Sprawling on the sun-flooded deck, or off in a corner of the lounge, he chainread the paper-backed volumes and threw them overboard like smokedout cigars. A f t e r this mental catharsis, he turned a purified attention

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to the latest art catalogues a n d books on painters. By the time Cherbourg rose on the horizon, the art connoisseur was ready to disembark. T h e a u t h o r of the little volume on pictures was solely an art critic. He wrote of collecting with professional assurance. He was not the lawyer d a b b l i n g in art, but f o r the time an artist. At work in his office he was interested only in l a w : as an art critic, he m a d e no references to his legal p r e o c c u p a t i o n . W i t h a true discernment of the situation that faces every m a n who divides his mental loyalties, he wrote: Sir Frederick Leighton, who, among artists, is a man of the world, a n d a m o n g men of the w o r l d is an artist, but who withal is a splendid specimen of the cultivated Englishman, out-Bougereau'd Bougereau in smooth, academic works. H e was keenly critical and h a d a w a r m sense of humor. " I n one of these," he observed, " a f a w n and n y m p h s in a meadow, under trees, the nude figures, by gauze, were m a d e acceptable to the English matron. Millais exhibited a y o u n g girl with chalky face and red cheeks, which is p r o b a b l y the delight of some English owner, who paid a heavy price f o r what is absolutely without value." H e wished to avoid the usual errors of the amateur and the dilettante. He was f a m i l i a r with the typical m a n of business who readily absorbs the patois of art a n d sets himself up as an expert. There is evidence that he shared the professional's contempt f o r shallow knowledge and superficial j u d g m e n t s . T h e grandson of Peter A. B. Widener has written of m a n y heated a r g u m e n t s upon painters and paintings that enlivened the weekly poker sessions between lawyer and client at the latter's home. Friends of J o h n s o n came to know that his opinion of the paintings of certain collectors was not high. His own aim f r o m the beginning had been to gather a collection that was wide in scope and would afford students and art lovers the finest examples of the important schools. In this endeavor he recognized the obstacles to be overcome and the limitations to be observed. He visited art museums, studied catalogues, developed his critical faculties and brought together one of the most i m p o r t a n t libraries of provenance in the country. These records of sales, covering centuries of time and the art centers of E u r o p e a n d America, h e b o u n d into splendid volumes. Thus he h a d in his own library the history of all important paintings. H i s work in f o l l o w i n g u p the disposition of paintings at each new sale and in tracking down the background of pictures offered to him, was not a new experience. He was repeating his early work in the law, when his amazing skill in ferreting out long chains of real estate titles b r o u g h t h i m the respect of older lawyers, as well as his first income. H i s a p p r o a c h to art was scholarly; he maintained a wide cor-

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respondence with dealers and critics—solely in his own hand—that is amazing in its scope and detail, as well as its legibility. In addition, this serious student of painting knew, in the important cities of Europe as well as in the United States, art critics who were in a position to furnish him with expert and disinterested advice. From New York, Bernhard Berenson wrote him frequently of new paintings that would be offered, and of possible purchases outside the regular channels. In Florence, Herbert Horne; in London, Tancred Boremius; and in Berlin, Wilhelm Bode, Director of the Kaiser Friedrich Museum, kept him informed. After Bode's death, Max Friedlander, who succeeded to his post, rendered capable and impartial advisory service. Johnson's relations with these men were something more than pleasant and courteous. There was a proper deference toward those who had devoted their lives to art. He always insisted on paying for any service. There was an open invitation to artists and critics to visit him on Sundays to enjoy his acquisitions. At such times the inadequacy of his home as a museum for his eventual collection of over thirteen hundred pictures might have been an insurmountable obstacle. This difficulty, however, was obviated by the system he used for displaying his canvases to guests. After lunch they would take their seats in the library, while Mulligan, the coachman, would go to various parts of the house to fetch each picture as requested. These were placed upon an easel, to be examined and discussed at leisure. Few of the men whose advice he sought were ordinary dealers. Most were art historians, curators of museums, and men in important positions in the art world. They were recognized experts, and their judgment added to his own resulted gradually in a group of paintings which form a veritable textbook of art. His limitation, of which he was well aware, was his purse. This, though large for a lawyer, was far behind the resources of great financiers, who aimed only for the greatest masterpieces. His own purpose was to assemble representative paintings, illustrative of the development of art since the fifteenth century. The comments upon galleries and painters which are contained in his book indicated an awareness of his own maturity. After a visit to an Amsterdam gallery he wrote: In the part of the gallery devoted to modern art is to be found what is its greatest and most impressive work, "The Obsequies of Charles the Good, at Bruges, in 1127," by Jan van Beers. The art scandals associated with the name of this painter, and the frivolity of most of his productions with which I was familiar—a frivolity too obtrusive to be redeemed by fine color and excellent technique—made this serious piece a surprise. It commands for him a place among the best artists of this generation. In it he rises almost to greatness. It is not without faults. It [163]

JOHN G. JOHNSON is a w k w a r d in s h a p e , a n d is not a l w a y s " i n a i r . " Its color, in p l a c e s is too b r i g h t , l a c k i n g tone. In others it is somewhat chalky. Still the eye, filled with s p l e n d o r s of the o l d m a s t e r s in this museum, accepts it with pleasure. Generally, in a t m o s p h e r e it is good. T h e faces are a d m i r a b l e , and a r e full of individuality. T h e figures are well modeled. T h e color, g e n e r a l l y , a n d the c o l o r s c h e m e , a r e fine. The composition is c a p i t a l , a n d f u l l of dignity. W e see the slow movement of the procession. A f t e r m o r e than a d e c a d e of intensive effort, he formulated his own s t a n d a r d s f o r e v a l u a t i n g a g r e a t m a s t e r p i e c e : he m a d e his own d e m a n d s u p o n the work of the artist. H e criticized the old Dutch school f o r its lack of variety of s u b j e c t a n d of m o o d , of poetical feeling, of imagination, a n d of g e n e r a l k n o w l e d g e . " T h e y leave us a s they find u s , " he s a i d . " T h e y never elevate. T h e y d e a l with the material, often with the c o a r s e , and at times with the d i s g u s t i n g . " H e w a s not content m e r e l y to j o i n in a general chorus of p r a i s e of long-recognized m a s t e r p i e c e s . L e s s well-known artists and p a i n t i n g s were c o n s i d e r e d c a r e f u l l y f o r indications of merit. " T h e force, versatility, p o e t r y a n d color, of a m a n who though unequal and sometimes b r u t a l , deserves t o r a n k h i g h a m o n g the men of 1830, and who will eventually b e a c c o r d e d h i g h p l a c e a m o n g t h e m — C o u r b e t — a r e here well d i s p l a y e d in p i c t u r e s of rocks, of meadows, of men and of f r u i t , " he c o m m e n t e d . H e early a d m i r e d Corot, a n d w a s keenly sensitive to his a d m i r a b l e shades a n d c o l o r s — " i n a sunny Italian l a n d s c a p e , in ruins, in moonlight views, in rocks, in v i b r a t i n g sunlight, and in dark green paths a m o n g high, o v e r a r c h i n g t r e e s . " At that e a r l y p e r i o d in his own art development he did not hesitate to e x p r e s s o p i n i o n s concerning authenticity, as well as merit. T h e r e is a confident note in these l i n e s : D e H o o c h h a s six works, one of which, " T h e Musical P a r t y , " dark a n d heavy is p r o b a b l y not genuine. The others, though v a r y i n g in q u a l i t y , a r e f a s c i n a t i n g . One of the best of them is a brick house in g l a r i n g sunshine. In the S a h a r a of things indifferent through which we m u s t w a n d e r , the w o r k s of D e H o o c h and of V a n der Meer of Delft are oases. H i s r e m a r k a b l e f a c u l t y f o r doing m a n y things at the s a m e t i m e — the compartment quality of h i s m i n d — w a s never more f u l l y shown than in his c r i t i q u e s : Monet, though in a state of evolution, often paints delightfully. H e h a s taught the artists of his day m o r e concerning the problems of sunlight a n d a t m o s p h e r e , than a n y other man of this generation. H i s own c a n v a s e s h a d not yet begun to crowd his h o m e on S o u t h B r o a d Street, a n d his i d e a s of p r o p e r arrangement a n d d i s p l a y were

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definite. He criticized the reception accorded to the public in the gallery of Baron Steengracht at The Hague, where visitors were hurried through the rooms by a loud-voiced butler, expecting reward "for uninteresting gabble." At such time, he averred, the art lover should receive impressions through the eye alone, and not through the ear. His own method was to fall behind these "personally conducted parties," and where this was not possible, he could not enjoy the exhibition. There was a calm certainty in his final thrust at the Baron's collection; "There is a good Jan Steen, which the butler triumphantly asserts, erroneously of course, to be the largest example of the artist in existence." He was especially responsive to the delineation of character. The slightest incongruity or unreality did not escape him. This was his reaction to another museum: Out of the portrait hall into which most of the worst horrors are crowded we emerge, with thankfulness and with an invincible determination never again to enter it, even to make a short cut. The play-soldiers of Holland, at one time called "Arquebusiers," and at another "Schutters," when in full dress must have put the peacocks to shame, and must have made even the rainbow envious. They missed no chance to hand down to posterity themselves and their clothing. Many of the sitters— though, to bring in their legs, they usually stood—look as if the magnificent garments in which they were arrayed, but not the secret of their wear, were borrowed for the occasion. He was always alert to the most delicate nuances, and little escaped him. In two remarkable groups of hospital governors painted by Hals in his eightieth year, he noted that the characters, male and female, "are vigorously feeble and full of caricature." "One of the governors is unmistakeably drunk," he added. Johnson, the art critic, possessed no inhibitions or reticences. There was no timidity such as we associate with the amateur. He could write: At Harlem, in its town hall, are examples worthy of Franz Hals as a colorist, but not as a delineator of character, in five portrait groups of officers of the Arquebusiers of St. George and St. Andrew. The earliest was painted in his thirtieth, the latest in his fifty-third, year. His reputation as a master of color may well be rested upon these works. In the second and in the fifth are some fine heads, but they are weak in color, flat in expression, wretched in composition. None of the groups are good in composition. They are portraits, not pictures. In none are all the heads good, though in each are some masterly presentations of character. He was under no more illusion about art than he was about anything else he encountered in life. He was perfectly aware of the flood of forgeries the high price of paintings inspired. He once told Patterson [165]

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that in buying pictures, for himself or others, he found that ten per cent were forgeries, and that this was a much lower average than most agents could boast. Frederick William Wile, in his News Is Where You Find It, wrote: Johnson, a passionate collector of Van Dycks, is said once to have opined that the great Flemish portraitist in his time had painted 1,752 pictures, and that 2,000 of them were in the United States! Often Johnson was asked how he chose his paintings—why he liked one better than another. Once he pointed to a picture which was valued at $25,000. After the first acquaintance, he averred, you had everything it had to offer—and that was commonplace. Other paintings, like friends, held something new at each encounter, no matter how the years accumulated. In painting, as in private life, Johnson indulged his sentimentality. He had picked up an attractive portrait of a Spanish Actor of the late eighteenth century, by a native artist. The Actor had been married, and his wife's portrait also had been painted by the artist. When Johnson learned this, he traced the wife's portrait and bought it—to reunite the couple after a hundred years. He had the trader's delight in outsmarting the other fellow. In a Holland auction were two paintings by a favorite artist. Johnson wanted one, but a prosperous gallery wanted both. He asked the auctioneer to put up first the one he did not want. Then he bid up the price to the limit of the appropriated funds, and dropped it. He got the other painting. Johnson liked to show his pictures to friends who really wanted to share his enjoyment, but he had no desire to string them out for popular admiration. They were his own friends. On Sunday afternoons, and on rare off-evenings, he retired among his paintings. He stood off and looked at them, climbed a stepladder for a closer view, turned lights off and on for color effects. They were volumes for infinite perusal, and he wanted them close at hand for constant study. Gradually his paintings filled every wall of his home, overflowing into each nook and corner. The situation was a standing jest among his intimates at the bar, and a shock to many artists. In fact, the art world could not absorb the many contradictions of Johnson the connoisseur. George Biddle painted a striking, but somewhat later, portrait in his An American Artist's Story. John G. Johnson was different still. Apart from his law practice [he noted with questionable accuracy] he had three interests in life: eating, reading detective stories, and collecting paintings. He had a prodigious memory and real scholarship. When he argued with Berenson about the authenticity of a Carlo Crivelli, backing his argument with [166]

BUILDING AN ART COLLECTION the m e m o r y o f a drawing of a f o r e a r m by S q u a r c i o n e or Girolomo da C r e m o n a in the Museum at P a d u a , sometimes Berenson was right, and sometimes he was. H e thus described one of his visits: He had eleven hundred masterpieces in a firetrap on South B r o a d Street. I h a d a ticket of admission to his house; and once when he was not at home, I poked m y nose into various c o m e r s that were not commonly visited by the public. I found two Chardins in his boot closet, many e x a m p l e s of the B a r b i z o n S c h o o l in his b a t h r o o m ; and Sargents, Manets and F r e n c h impressionists in the corridors of the servants' stairway. A m o n g the many portraits by Holbein which he possessed, was an exceptionally fine o n e — t h e gem, he averred, of his possessions. One year, not finding it in its accustomed place of honor, I asked him what had b e c o m e of it. " B i d d l e , " he drawled in his slow, Philadelphian, nasal twang, " I venture to hope that someday my collection will have some breadth of educ a t i o n a l purpose. Y o u can pick up a Holbein anywhere. He's on the market. B u t I wanted a Coreggio. T h e r e was no Coreggio in America. S o I swapped in the Holbein and now I have my Antonio A l l e g r i . " It was difficult to believe that even J o h n s o n could be equally at h o m e in fields so divergent as the law and painting. Y e t such was his absorption in art that even dealers c a m e to respect his judgment highly. T h e lawyer's h o b b y afforded a never-ending pleasure, and at an early period a desire was enkindled to share the e n j o y m e n t of his pictures with the community in which he had risen f r o m obscurity. T h e r e was an early recognition that paintings, like books, can be possessed only by those who love and appreciate them. H i s search was f o r examples that would be of value to serious students and artists. T h e r e were indications that he understood clearly his own role. H e realized acutely that he could own a great painting f o r only a short t i m e ; that he was making his purchases f o r others as well as f o r himself. T h e s e thoughts merely enhanced the inspiration he received f r o m the m a n y tasks his collecting imposed upon him. F r o m the pages of his little book, written when he h a d j u s t passed fifty, we catch some of his enthusiasm. W i t h some rich men, art was a passing fancy, to be forgotten after the novelty had worn thin. Others, like J a m e s H i l l , grew weary with age, and were unable to m a i n t a i n the ardor of their earlier years. T h e r e was no flagging of J o h n s o n ' s interest; the years merely deepened the satisfaction he found in viewing a significant painting. A n u m b e r of passages of his b o o k were to be repeated in slightly modified f o r m at a later date. His observations upon the " N i g h t - W a t c h " of R e m b r a n d t were r e p r o d u c e d in the newspapers of his city upon several occasions. F o r the artist of the Judenstrasse he reserved his

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highest praise. His reflections upon works of this master are worthy of recording in spite of their length: To Rembrandt the gallery owes its glory. Here, he rises to height supreme. His half-length of an old lady, Elizabeth Bas, in ruffled collar and black brocade, is one of the best he has ever painted, and is superior to the "Gilder." A fragment of an anatomical operation, ghastly in subject and execution, is not particularly good. The Van der Hoop Collection contains a picture by him, not very satisfactory, of an old man making overtures to a young woman, who is supposed not to understand his meaning, though her ignorance, under the circumstances, is inexplicable. His five "Directors of the Guild of ClothMakers," though not of his best is great. It is hardly equal to the Jan Bray at Harlem, but the table-cloth, red and yellow, is masterly, and, despite a slight awkwardness of pose, the figures are fine. His "Night-Watch" is one of the world's immortal treasures. To the person who has so successfully cleaned it, and who, by bringing to light things which had disappeared under the dirt of centuries, has restored its balance, we are much in debt. A silly dispute has arisen as to whether the scene is one of day or of night,—silly because the foremost of the company are clearly emerging from the room into a blaze of sunlight. Never have uninteresting men been posed with such art into a painting so noble. As a picture it is so great we forget that in its execution the painter but filled a commission which obliged him to put into positions of prominence those who otherwise would have been relegated to the background. We ought not to condemn him for lowering the dignity of his composition by placing in the front the little, finely-dressed popinjay lieutenant, who walks by the captain's side. We can only regret that the latter was not cast in a more noble mold. Simply as a piece of painting, apart from its being out of place in a great masterpiece, even this figure is worthy of praise. Though the expression be that of conceit and the character depicted is a weak one, still, all is true, and the dress and figure, in the yellow blaze, glow with color. Saving for it, the work as a composition, is beyond criticism. Hours before it pass as minutes. Time and again, after quitting it, we. are irresistibly drawn back. It is impossible to say all that is felt. The ordinary adjectives with which praise is expressed are insufficient. Such words as "glorious," "magnificent" and "superb" are weak. We fail to understand how such a work could be conceived by the brain of the insignificant, and in some respects mean, little Hollander. Daring experiments in composition are crowned with success. Character is admirably shown. The picture is a feast of color. A sight of the "NightWatch" would compensate a visit to Europe void of all other results. His description of the "School of Anatomy" by equally striking. He pointed out that this glorious for only thirteen thousand dollars a few years before, and he was led to comment upon another aspect of

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the same artist is painting, obtained was now priceless; art collection.

BUILDING AN ART COLLECTION H e noted that with works of art, as with all things needed or desired b y man, the law of supply and demand governed. T h e extent of the supply of the great works of the great masters o f antiquity is restricted. Now that A m e r i c a , to the n u m b e r of those who c o l l e c t old masters, has added its m a n y men of m a n y m i l l i o n s who love, or think it well to own, paintings of world-wide renown, who can fix the market value in 1 8 9 2 of what, but recently, s o l d f o r $ 1 3 , 0 0 0 ? However, he quickly dismissed the discussion of m a t e r i a l values in the presence of a R e m b r a n d t . " I t will b e m o r e p r o f i t a b l e to consider its artistic v a l u e , " he observed. His appraisal is worthy of the " S c h o o l of A n a t o m y " : It is a d m i r a b l y preserved, and anew, illustrates R e m b r a n d t ' s marvelous power of composition. Out of a portrait g r o u p he has evolved a great picture, constructed with the highest skill and knowledge. No possible f a u l t can be found, save that the person placed in the apex of the pyramid of composition is neither listening n o r looking. T h e picture would be almost overwhelmingly sweet but f o r the superb c h a r a c t e r o f the faces, its glowing color, serenity and dignified nobility. T h e s e make criticism i m p o s s i b l e . Even the repulsive s u b j e c t is lost sight of in the perfect composition. T h e presence at the museum o f the Hague of this picture makes it a M e c c a to art worshippers. T h e final g l i m p s e of this unique c o l l e c t o r showed another J o h n s o n who would have shocked m a n y clients w h o c a m e to consult the " i r o n man of the l a w . " He w r o t e : T h e Mesdag Collection is to be seen in the artist's beautiful h o m e on the road to S c h e v e n i n g e n — t o Scheveningen, sung by poet and loved by p a i n t e r — b e a u t i f u l S c h e v e n i n g e n — w h i c h no one can forget, who standing on its f a r curving beach, has seen the fast darkening eastern sky over the white dunes flush pink, as the sinking sun, p o u r i n g b a c k a stream o f gold across the water, filled the western sky with g l o r y , whilst the whole heavens with mountains of clouds, g r a n d in f o r m and glorious in color, were m i r r o r e d in the glistening sand.

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A Merger in Sugar I n SPITE of many victories, Johnson had steadfastly avoided the reputation of invincibility. Press notices that he had never been worsted on a point of law left him cold. Intimations of ability to guide justice out of regular channels brought a snort of contempt. The inquiry with him was only, "Has the law been properly a p p l i e d ? " Thus he discharged his true function as a lawyer, and thus also he embodied his sole duty to the court. At times he amazed his colleagues by his persistence in the face of apparent disaster. But he was definitely no "miracle man." He was a grand fighter and an excellent strategist. To the outsider he seemed the acme of sureness, never hesitating, and completely convinced of the correctness of each step. In fact, not a few observed that his assumed confidence in a contention was in inverse ratio to its soundness, and attributed some of his success in the local courts to the persuasive character of this confidence, which indeed at times had little merit. The other side of the picture was more revealing. Those associated with him found him an extremely conservative advocate. He was critical of his own position, and cast aside as untenable one legal principle after another. He expressed doubts about lines of defense that to those working with him seemed impregnable, and subjected every course to a searching scrutiny. At all times he knew the pitfalls; he understood how treacherous was the terrain, and how frequent and unexpected the bogs. Yet it came about in the mid-nineties that he, who counted defeat as parcel of the day's program, was hailed throughout the nation as a legal wizard to whom nothing was impossible. This result was achieved by a striking chain of facts. His retention in the Sugar Trust Case was natural, almost inevitable. At the time, sugar refining was controlled by one of the largest corporations in the country. A former loose combination of manufacturers, in order to circumvent the Anti-Trust Act,

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luxury jostled with poverty and wretchedness and unremunerated toil," and of the "impoverishment of rural sections." No soap-box orator, but the voice from the White House, declaimed of the gulf between the rich and powerful and the toiling poor, and of the "citizen trampled to death beneath an iron heel." The references to corporations were unmistakable and not calculated to lessen the growing ire. "Corporations which should be the creatures of the law and the servants of the people," he averred, "are fast becoming the people's masters." He spoke of communism as a hateful thing and a menace to peace and organized government, but added: The communism of combined wealth and capital, the outgrowth of overweening cupidity and selfishness, which insidiously undermines the justice and integrity of free institutions, is not less dangerous than the communism of oppressed poverty and toil, which, exasperated by injustice and discontent, attacks with wild disorder the citadel of rule. To the wrath of the President and of the few lawmakers still immune from trust contamination was added the condemnation of economists. The money power—which for ages had controlled legislation in most of the world—it was feared was in control in free America. The impact of this accumulated fear and distrust was seen in two forceful actions by separate departments of Government. Congress passed the Income Tax Law, and the Attorney-General moved against the Sugar Trust. Both had to pass the scrutiny of the Supreme Court, newly saddled with the obscure and conservative Fuller as Chief Justice. The Income Tax—which was decided a few months after the final ruling in the Sugar Case—excited much feeling. The West was convinced that the tribunal was on the side of capitalists and creditors; the belief was even more widespread that the country was being exploited by favored groups. The briefs of the brilliant array of Eastern attorneys, headed by Joseph H. Choate, with whom was ex-Senator Edmunds and Charles F. Southmayd, the Nestor of the New York Bar (with an ample income of his own to protect), appealed unblushingly to class fears and prejudices. The unhappy decision, termed by a conservative writer in the American Law Review as "a wound inflicted on the rights of the American people," was regarded by the world and all but the most conservative newspapers, as the triumph of selfishness over patriotism. On the other side a celebrated newspaper editorial declared: The wave of Socialist Revolution has gone far, but it breaks at the foot of the ultimate bulwark set up for the protection of our liberties. Then it added, without a trace of conscious irony, "Five to four the court stands like a rock." [172]

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The agitation against the McKinley Tariff had reached its climax. It was described as "an unjust tariff which banishes from many homes the necessities of life in order that in palaces of wealth luxury may abound." Panic and depression, prostrating industry and plunging most of the railroads into receivership, had intensified the national despair. The South and West were arrayed against New York and the great Eastern states. Farmers, storekeepers, and labor representatives gathered in protest and filled the lobbies of Washington. The scenes were reminiscent of the French Revolution. Senator Sherman, who had given his name to the Anti-Trust Law, reluctantly sponsored the Silver Act, designed to overcome the "money famine" of the day. Strikes and violence were general. Homestead was merely an episode. But the brunt of the accumulated discontent was centered upon the trusts. The collapse of the National Cordage Company, a combination flagrantly conceived, and even more flagrantly manipulated on the Exchange, had signaled the new crash of securities. It seemed clear evidence that trust manipulation was the cause of the national headache, In sugar the jacking up of consumer prices had been accompanied by a frolic of speculation, even as the debate on the sugar schedules of the tariff was in progress. These facts were in the mind of Johnson when he planned his defense against the civil and criminal proceedings instituted by AttorneyGeneral Olney. In the highest circles there were grave doubts about the scope and usefulness of the Anti-Trust Act. A substantial opinion among economists viewed the trust agitation as unfortunate, obscuring the many specific causes of the industrial breakdown. These men saw the chief defense against monopoly and manipulation in regulation and the workings of economic law. They believed that with the growth of the country, an age of vast industrial units was at hand. They saw large-scale production as a step toward greater efficiency and lower prices. They admitted the need for rigid control, but averred that all economic factors, including self-interest, must lead to lower costs, increased production, and lower consumer prices. Among lawyers a minority held that the remedy against trust abuses was ample in the common law powers of the several states. The Sherman Act to these men was an unnatural creature of the law. The many perplexities that had arisen from the language of the Act they attributed to this effort to give federal control over essentially local offenses.* * At the Pennsylvania Constitutional Convention (1873) Samuel C. T. Dodd had delivered a classic indictment of rebates and monopolies. In New York, the Sugar Trust had been dissolved on the narrow ground that the company had exceeded its corporate powers in joining the trust. (People v.

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In practice, this excellent theory had fallen down because of the failure of the states in their anti-trust prosecutions. The Sherman Act, in spite of its inherent difficulties, seemed the only real weapon against what the average man believed was the chief cause of hard times. The "money power" had proved itself too powerful for local and state courts and officials: only the federal authorities might cope with it. The legal confusion became apparent in the suit brought by the Attorney-General. The basis of the complaint was the exclusive refining of sugar in Pennsylvania. Many lawyers believed that the offense charged should have been the monopolistic selling in many states of the sugar produced in Pennsylvania and New York. It is noteworthy that the case begun in the Circuit Court of the United States was an action in equity; the later indictment of the sugar heads was a criminal proceeding. Johnson had no hesitation in undertaking the defense in both cases. His practice had embraced many violations of statutes designed to curb business practice or regulate industry. He entered a simple demurrer in both actions. In the Circuit Court Richard C. McMurtrie, many years his senior and long a leading Philadelphia lawyer, was associated with him in the defense. The plan of the two men was coordinated, yet it reflected the different views they held of the proper lines upon which to make the real fight. McMurtrie felt that the common law decisions afforded the sole possibility of escape. He was prepared to review the long line of cases that had interpreted narrowly the words "restraint of trade." He steeped himself in facts and figures on sugar refining, and was ready to show the economic basis for the merger and its benefits to manufacturers and to consumers. His strategy was comparable to that adopted by Brandeis at a later period in arguing the constitutionality of the Oregon Minimum Wage Law. Johnson's course was bolder. His training and instinct impelled him to a "legal" defense, if such was indicated by the record. Not that he was unready to raise his argument into the reaches of economics, and even into the international sphere, when the occasion demanded it. But apparently he was not convinced by the effort of his associate to paint the sugar combine as a beneficent monopoly. Nor in the acrid air of that day was he confident of an appeal to logic and sober business facts. He was not convinced that statistics and the record of the sugar combine North River Sugar Refining Company, 1891) In Ohio, the state court in 1892 held such agreement ultra vires, and unlawful as tending to monopoly. Other states followed these decisions, but several jurisdictions permitted such combinations. "New Jersey," wrote Lincoln Steffens, "was regularly in the business of selling not only indulgences, but absolution." Our Times, by Mark Sullivan, Vol. II, pp. 300, 310, 333, etc.

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would lead to a conclusion favorable to his clients. Everything seemed to dictate a flight from facts to the law. He was keenly aware of the outlook of the federal judges, and particularly of the justices of the Supreme Court. Outside of Harlan and Day, he understood their innate conservatism. The background of each —from the poetic Fuller to the virile White—was vivid in his mind. In many cases the highest court had registered its answer to the challenge of these years. Johnson was ready to rest his case upon a single, but well-calculated maneuver. Such a step precluded further inquiry into the operations of the defendants. So he drove at the lone vulnerable point in the complaint, and argued simply that manufacturing was not interstate commerce. He discarded economics and sociology, and dealt with legal words and phrases. He cited a few of the leading decisions that had grappled with the term "interstate commerce"—Coe v. Errol and Gibbons v. Ogden. McMurtrie, who had come prepared for an elaborate argument, found himself practically excluded, as the court indicated its preoccupation with the strictly legal points of the case. It was a bold, intuitive course taken not because it gave real promise of success, but because it was the best chance in a desperate situation. Toward the sugar magnates who haunted his office, his attitude was firmly aloof. He brushed aside the many suggestions that came from them as to facts and legal conclusions that should be presented to the court. Often they were left to cool their heels in his outer office while he continued to serve the many clients who waited their turn. The story is told that on one occasion officers of the sugar companies, coming over from New York, had passed into his private office eight successive notes to indicate their impatience, and the necessity of catching the train back. The story goes on to say that Johnson calmly continued his routine, merely advising that the case would be presented at the proper time. In the Supreme Court of the United States, the Knight Case, argued late in 1894, did not rouse the national concern felt when the Income Tax Cases were up for decision late in March and again in May of the next year. In fact, it was an important part of the defense technique to restrict the issue, the argument, and the scope of the decision. The question was presented as purely jurisdictional. It was conceded that there was a practical monopoly—almost air-tight—in the refining of sugar. Johnson, who was now alone, owing to the death of McMurtrie, sought to avoid extended discussion of the practices and purposes of the sugar refiners. It could only add to the opprobrium that already weighed against his clients. He was content to point out to traditionminded justices the dangerous avenues that would be opened up by [175]

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breaking down the time-honored distinction between the power of the Federal Government to deal with interstate commerce and the functions of the states over local matters within their borders. The final opinion of the court was handed down by Chief Justice Fuller; actually it was the product of Johnson's strategy. It was surprisingly short. It refused to discuss the methods by which the sugar trust was taking over four of the five remaining independent companies. It referred casually to the conflicting views of economists on the results of monopoly and large-scale production. It barely mentioned the fact that the stockholders whose securities were purchased were free to go into the same line of business. It even accepted the premise that the power to control manufacturing involved control of distribution. It merely held that this was a secondary and not a primary result. It rested its conclusion upon the necessary independence of the commerce power and the police power in our system of government. In spite of the clamor against the sugar monopoly, there was a practical basis for the final conclusion of the Court. Johnson's position rested upon more than the astute tactics of an experienced lawyer. He had fought that case upon fundamentals, which to him were so clear that there could be no other answer. He saw, and was able to convince the Court, that the proof required under the Sherman Act "to protect trade and commerce against unlawful restraints and monopolies," could only be met by proof of a monopoly in interstate and international trade. That the evidence of a monopoly in manufacturing—even of a necessity of life—was not sufficient. He felt that to ignore the distinction between interstate commerce and manufacturing would bring about concurrent power over all industry within each state. In a vast country, where local conditions differed so greatly, he believed that the states could best deal with local business, and that the Federal Government could not adequately cover the entire picture. The dissenting opinion of Justice Harlan was strikingly voluminous. It breathed fire in its insistence on the right of the Government to deal with the trusts. It also cited old-line cases of the Supreme Court, but its reference to state decisions was less happy, and somewhat confirmed the position of the majority. Among others, it mentioned the Morris Run Coal Company v. the Barclay Coal Company—a leading case decided by the Supreme Court of Pennsylvania in 1871—to show that the sugar combination was unlawful. This was quite true, and came within the blanket admissions of Johnson's brief; but it also showed—as he insisted—that the states were not only able but ready to suppress unlawful combinations and acts in restraint of trade within their borders. It could hardly be argued in the highest court that the framework

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of the Supreme Court was not something to be reversed, changed, or modified from month to month, or year to year. It was not a ruling to be effective until further notice, or until new faces should appear in the line-up of justices. He understood that the Supreme Court had to bend before gales of public opinion, but he urged at all times that its decisions were rules of property, and that American enterprise could not endure if the rules of the game were altered from year to year. The pupil of George Sharswood went even further. He compared the maxim of stare decisis to ex post facto laws, and argued, from the analogy, that both principles were imbedded in the Constitution. The broad sweep of American industry has attested to the soundness of his contention. Nearly thirty years later the New Republic, commenting upon the long litigation under the Sherman Act, compared the meagerness of the results produced by lawsuits with the practical workings of economic forces—new and old—and human ingenuity. It wrote: Anthracite has been similarly helpless before the onslaught of new economic forces and human ingenuity. Oil for domestic heating and smokeless consumption of bituminous coal have robbed it of much of its unique value and a large part of its best market. It is altogether probable that without legal interference the anthracite industry would by this time have been rudely jolted into just this defensive and competitive position it now occupies. This does not necessarily prove the uselessness of the anti-trust laws for the protection of the consumer, but it does show that there are natural weaknesses in apparent monopolies always at work on his side. Manmade laws may be circumvented, but the natural law that individuals survive only by virtue of their competitive efforts has yet to be repealed. . . . It will have to be borne in mind when the country comes, as it soon must, to the revision of statutes over-estimated as to their protective value, but unwisely restrictive of commercial development and wasteful in their ultimate results. Johnson was by no means perturbed by the currents of popular excitement that swirled around him. He had done his simple duty as a lawyer. Popular and populistic wrath viewed him as a "corporation lawyer"—a mere hireling of the sinister trusts against a rugged business individualism. On the other hand, business men and lawyers hailed him as the greatest lawyer of all time—a veritable worker of miracles, whose fame was now world-wide. Neither view accorded with facts, or measured the caliber of the lawyer. The United States v. E. C. Knight was only a case. He had performed his duty as he had seen it. In his office a hundred additional issues cried for solution. He was too busy to reflect upon the distortions

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A MERGER IN SUGAR that pilloried him as the foe of progress, or placed him upon a special pedestal. His practice was too vast and diverse to merit any special label. The door of his office was still open. He was still ready to go into court for the humblest client. He still believed that laws were framed for literal and logical interpretation. But he was no longer merely a Philadelphia lawyer. He was a national figure. His reputation was further enhanced in some circles by the results of the seven criminal prosecutions against the contumacious witnesses in the Sugar investigation before a committee of the United States Senate. These men had been indicted by a grand jury for refusal to answer pertinent questions. These were matters vital to the dignity of the Senate, and it was generally felt that they affected the whole fabric of popular government. The prosecutions had grown out of an official investigation into grave charges against several senators. The accusations of corruption and bribery were linked with the Tariff Bill of 1894, commonly known as the Wilson-Gorman Tariff, which was pending in the Senate during that time. Many newspapers, particularly the New York Sun and the Philadelphia Press, had headlined an alleged bargain between certain Democratic senators and the Sugar Trust to favor the trust in the schedules of the tariff, in return for contributions to the Democratic campaign. There were further references to speculation in Sugar Trust stocks by certain senators, and averments not unfamiliar to the public of the nineteen-thirties. Among the seven witnesses who had refused to answer questions put by an investigating committee of five senators were Havemeyer, the President, and Searles, the Secretary of the Sugar Trust, as well as a New York stock broker and newspaper correspondents. The most pointed query upon which the two men had stood mute had asked if they, as officers of the American Sugar Refining Company, had made contributions to the political campaigns of a number of senators in 1894, and the amounts of such advances. They also refused to produce the books of the company. The indictments in accordance with certificates signed by the VicePresident, as President of the Senate, and under the severe penalties of the Act of 1857, had aroused much feeling. It had been shown' that the "trust" had expended money for the election of Democrats in New York and Republicans in Massachusetts at the same election and in the same year. This was not contradicted or denied by either of the officials. With brutal frankness they admitted that they had personal knowledge of the transactions, but declined to give the information on the ground that they had not been served with a subpoena duces tecum to produce the books of the company. They also stated—under the advice of their counsel—that the contributions related to local and state elections and [179]

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not to national elections, and that the questions pertained to their private affairs. All these technicalities met with little sympathy from the press, and a derisive impatience from the man in the street. At a later time even the Senate itself was to ring with denunciations of the whole proceeding. But the essential fact was that the even-handed generosity of the "trust" proved the salvation of the defendants. Both political parties were besmirched by the same scandal; the leaders of both sides wished to be done with it. Had the charges involved the minority party only, nothing could have saved Havemeyer; had they embraced the dominant faction, he would probably have been sacrificed to the loud outcries of a few senators. After one of the minor defendants had been convicted and imprisoned, the political pressure to quash the proceedings became evident. Judge Bradley, who had succeeded Judge Cole on the criminal bench, accepted the defense urged on behalf of the accused, and they were acquitted as fast as the cases were called and the juries impaneled. The ruling met with a great outcry in the press. Many articles appeared in legal and other journals which challenged the basis of the court's action. "Buying the election of United States Senators by corrupting state legislators is not a local matter. The pretense of not being served with a subpoena duces tecum is absurd," wrote one commentator in the American Law Review. "It was not the refusal to bring in the books of the Sugar Company, or to examine them to refresh his memory, or to ascertain the amount of the contributions that constituted the offense, but a refusal to answer the questions touching on certain political contributions . . . therein was their flagrant violation of the statute." "To hold that a mere witness before an informal investigation committee cannot waive summons by appearance is too ridiculous for words," wrote the editor of the New York World, in reference to one of the minor defendants. Two years later Senator Allen paid his respects to Judge Bradley on the floor of the Senate: I do not know him, and I do not care; but, Mr. President, a man occupying the Bench in the District of Columbia, or elsewhere, who would hold the doctrine that a question put by one member of a committee, not objected to by the balance of the committee, and when they gave their assent to it by silence, was not a question of the whole committee, ought to be impeached for general incompetency in not knowing a fundamental principle of jurisprudence that has come down to us for six hundred years. Strangely, there was little resentment against Johnson, whose hand had guided the defense only indirectly, even in the quarters that attacked [180]

A MERGER IN SUGAR the decision most bitterly. In the criminal proceedings even more than in the civil, he was viewed as a hired advocate who had performed a particularly dexterous feat. On the other hand, in business and conservative circles he was hailed as a supreme master of the law, a veritable practitioner of black art, to whom impossibilities were matters of daily performance. Actually the lawyer had simply ridden the currents of economics and politics. The innate conservatism of the judiciary had given him a victory in the civil suit, and the muddled waters of politics had assured a triumph in the criminal action. No one knew better than he that Lady Luck had given him a rare smile in both instances. To his intimates he might have described the favorable verdicts in the words he used on another occasion: "My God, wasn't that snatched out of the lion's m o u t h ? " he had said. But the world of finance and business did not so understand it, and Johnson did not take time out to dispel the aura of his own achievements. Like every experienced gladiator, he had lost too many cases that he should have won not to enjoy to the fullest the occasional victory that by all the canons should have been marked down as a defeat.

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Leader of the Bar _ A L MODERN Scheherazade would find, in the cases of Johnson, material for a Thousand and One Nights. Many, indeed, dealing with the most abstruse problems of the law, might put her lord to sleep. But with the passage of the years a goodly number of the situations into which the lawyer was called took on a more general interest. This was particularly true of the litigation in the Supreme Court of the United States; even in the state courts single cases attracted attention, with the facts and testimony filling volumes and the final opinion of the judges a formidable monograph. Johnson handled these matters with amazing sureness. He could gather all the threads of testimony, take up new problems even more complex, and then pick up the old strands where they had fallen. The most rapid survey of the cases that protrude from the great mass becomes a monotone. But to omit mention of the legal causes to which he devoted himself is to give the shadow and not the substance of the man. To dismiss the scope of his work with mere adjectives or numerals is to measure the stature of a creative artist by the enumeration of thirtyseven plays or nine symphonies. In the final decade of the nineteenth century the railroads were still building new lines and improving old facilities. The public had become conscious of the dangers of grade crossings, and their elimination was demanded and slowly enforced. Of wider scope was the extension of street railways. New tracks were being laid down in cobbled streets which had known only the jingle of the horse car. Small industries were growing in size and widening their services. Gas and electric companies sprang from the heads of promoters into active service. In and beyond the state giant companies were projected—in oil, in steel, in meat packing, in coke. Big business was developing new services and new techniques that required clarification by the courts. Johnson was in the forefront of these advances. He was of counsel when the stronger city railways sought to extend their lines to new streets, when the railroads reached out beyond the cities into the suburbs [182]

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and the hinterlands. He was consulted when the street railways cut their way into Fairmount Park, when the old turnpike companies found their franchises impaired by the tracks and wires of the new trolleys. The trek to Johnson's office continued in well-worn grooves. He lent his services, as prescribed by the precepts of his profession, to all who invoked them. He entered into no entangling alliance with any interest or coterie. Each set of facts rested on its own bottom, and none was exactly like another. For a brief half-hour Johnson expounded before the court the position of a passenger railway company; an hour later in another case he spoke for the city. At the same time he was counsel for a milkman who had been injured while driving his wagon over a defective rail. He acted for corporations which had clashed with their rivals, for railway companies battling the new electric lines, for rail carriers, now at war against, now allied with, coal corporations, for banks, trust companies, and insurance companies. At the same sessions he appeared for the small broker whose business had been put in jeopardy by state law, and argued the constitutionality of such regulations. His briefs covered fundamental principles which were to be echoed and reechoed in new cases involving similar questions in the highest courts of the land. He restricted himself to no branch of the law, and not infrequently argued cases that would find their way in the digests under the heading "Criminal Law." Yet these defendants were not of the criminal classes, but business or professional men who had run afoul of a special statute. They included insurance brokers, optometrists, pharmacists, challenging the validity of special regulations or ordinances. Some of the issues were surprisingly simple—a collision between rider and driver in the park, damage suits for negligence, or simple contract cases between men of business. Even among these, facts and law frequently became so entangled that the skill of an expert accountant had to be joined to the highest alertness of the lawyer to deal with intricate figures and the ambiguous terms of carelessly drawn agreements. In a typical case, Johnson represented important concessionaires of the Wanamaker store, the Straus brothers—later to acquire the Macy business—who asked additional profits running over five years of successful operations. The mastery of fact and figure, apart from the law, represented a real task for the average lawyer. In another case, he acted for party bosses and traction magnates in their continuous warfare with the municipal authorities. In a third, he was retained in litigation arising from the promotional activities of adroit bankers. Withal, Johnson was taken up with hard day-to-day fighting, and with little time for consideration of broad social questions. These matters were outside his ken. The lawmakers in Washington, Albany, Boston, Trenton,

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and Harrisburg ground out the statutes; the judges delivered their quotas of precedents. The lawyer serving a thousand clients, avid for the last ukase upon each special problem, could but hew to the line. City and state politics, with a Quay, a Penrose, a Durham, and a Wanamaker, merchant prince and reformer, spawned a multitude of cases for the courts. Each campaign had before and after a trail of litigation that led normally to D. Webster Dougherty, silver-tongued political lawyer who had nominated Cleveland for the presidency, or to James Shakespeare, or E. Cooper Shapley. Before actual trial, Johnson was frequently brought in for support. His independence made his services of singular value. The erection of the state capitol at Harrisburg left in its wake a horde of litigants, many of whom Johnson rep'resented, from the architects who submitted the first designs to the contractors who installed the final trimmings. In his hands all such matters resolved themselves into mere questions of law. In his own city public questions, with and without a political tinge—the grant of franchises for telephone and telegraph, the activities of the Law and Order Society under the irrepressible Gibboney, the manifold functions of the city from its schools to its paving and garbage contracts, found Johnson acting for one of the parties. Such cases were not unique to his city or state. They had their counterparts throughout the country, even as the failure of insurance and beneficial associations, the tangled affairs of building and loan associations, frauds and embezzlements by trusted officers, the dishonored contracts and broken obligations of business men, mushroomed everywhere. Only a few members of the local bar were treading the higher ranges of the law; the great majority struggled on through the nineties in the crowded valley below. The bitterness of factional politics gave some inkling of the fierceness of the struggle for survival. Johnson on the mountain top was none the less aware of the privations and passions. The many attorneys, young and old, who came to his office with their difficult cases, and their even more difficult personal problems, kept him well informed of the first. The press—and current gossip, for which he had an attentive ear—duly apprised him of major changes in the political set-up. He refused to be drawn into party feuds, but could not always remain entirely aloof. In the heated campaigns of the decade, his services were usually requisitioned. The conduct of Johnson on such occasions was as correct and detached as was his aplomb in the major disputes of private litigants. On one occasion a prominent judge, who had been the target of preelection abuse, retained Johnson and Sulzberger, who were currently rated first and second in fighting power and legal acumen. [ 184]

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The lawyer's moves were studiously dignified and impressively formal. He was clearly a second in a private duel, and not for a moment did he depart from the prescribed ritual of the Code Duello. The whole episode showed the sure touch of the able adviser and, after the votes were counted, ended in a public apology. Heated tempers in and out of the courtroom were not the exclusive property of political ambition. Even irreproachable offices lost their poise. On one occasion a printed brief submitted by the office of Richard P. White and George H. Earle, Jr., referred to a presiding judge as a "Micawber," and said "that the court had been more socialistic than a jury." In the cold light of judicial scrutiny, this language seemed more illadvised than colorful. An apology was promptly demanded by the higher court, and just as promptly given. In another case, a well-known attorney made derogatory statements about the learned Judge Hare, adding murmurs about "political pull." The speedy manner with which his friends made the amende honorable, lying like gentlemen, represented the model technique for healing the scars of courtroom battle. In spite of the pressure under which he worked, Johnson rarely gave way to personal feelings. Provocation undoubtedly was frequent enough, and his clear understanding of the law must have been irked time and again. Apart from a rare comment upon the conduct of the case—muttered sotto voce—his attitude toward the occupant of the judge's seat was the acme of deference. That his outward demeanor often masked quite other feelings can be gathered from a story told by George Wharton Pepper. While in court he never betrayed any sign of nervousness. Elsewhere he now and then gave evidence of the intense strain under which he worked. One afternoon I went to his office to see him about a pending case. "Sit down and wait for him," said his assistant, "the district court is sitting later than usual but he will be here shortly." I sat down among half a dozen waiting clients. Presently I heard a quick and heavy tread on the marble floor of the hallway. The trembling office door opened as if the hinges and latch would both give way. Mr. Johnson burst into the room, his face red with anger—while perched on top of his massive head was a derby hat so small that it made him look like a music-hall comedian. He stood still, snatched the hat from his head and fairly shouted, "Some blankety blank blank-blank has taken my hat and left me this g-d-d thing!" With that he threw the hat violently to the floor, actually leaped upon it, and ground it to a shapeless mass beneath both feet. Then, apparently heeding nobody, he walked quietly and quickly into [185]

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his own room, seated himself at his desk and in a tone of extreme politeness called out, "Come in, Mr. Pepper." When a quarter of an hour later I emerged, his assistant, Ned Hammersley, told me that a mild-mannered member of the bar, Shearer by name, had in the interval made his appearance, his face almost invisible under Mr. Johnson's hat. "Mr. Johnson and I have exchanged hats," he said quite gently. "I've come to return his; is mine h e r e ? " Hammersley pointed silently to its remains. " I guess I'd better say nothing about it," said the visitor in a scared voice. " I guess you're wise," said Hammersley; at which the visitor left quickly and with his head bare. Frayed nerves and rising tempers were not confined to lawyers. The nation seethed with discontent, and society was in turmoil. Depression was stalking the world, and the amity of nations was lost in amnesia. The important unity of Great Britain and the United States was threatened by what should have been a minor controversy, involving the seal fisheries of Bering Straits. Again better judgment won out, and the matter was arbitrated. The local bar took pride in the outcome, as Russell Duane, just out of law school, had been appointed junior counsel in the dispute by Secretary Blaine on the strength of his law oration, "The Case of the Sayward." Other controversies did not lend themselves to such happy solutions. In the summer of 1892, the workers at Homestead had climaxed years of labor unrest by taking possession of the Carnegie Steel Plant. Governor Pattison was reluctant to act, but the barrage of editorials and headlines was heavy: "Let Every Man Look at Pennsylvania," "Strikers in Possession Under Title from Government," "Law and Order Are No More, and the Constitution Is Spit upon by the Executive of Pennsylvania," and "Governor Pattison's Shame." The National Guard was called out. The Homestead episode was to have long-range effects upon national politics and anti-trust litigation. Johnson was now undisputed leader of the bar, yet there were minor drawbacks to his high position, and the comparative quickness of his rise. His work had associated him even as a young man with important figures of the bar—usually men many years his senior. From the first he was to see these men pass from the scene. The death of Lewis C. Cassidy, regarded by him as one of the ablest lawyers, of John Cadwalader, Furman Sheppard, and even of Isaac Norris, who had enjoyed the transient distinction that comes to the oldest member of the bar, gave a sense of intimate loss. He had learned much from these men, and then in turn had been associated with them, and the gradual passing of the older bar meant much to him.

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LEADER OF THE BAR He now had the many tasks of a leader in his p r o f e s s i o n — a tribute to a retiring j u d g e or public officer, the suggestion of names f o r high office. He avoided most of the social functions entailed, attending only the most necessary dinners. Only an occasional reception—the m a r r i a g e of his daughter or a close relative—took him f r o m the daily routine. The Federal Courts were beginning their sessions in the new courtroom at Ninth and Market, and on the death of J u s t i c e B r a d l e y in M a y 1892, Johnson was one of a committee to p r e p a r e a p p r o p r i a t e minutes. His concern was not limited to this f o r m a l role. Within a week, local circles buzzed with rumors that he had been offered the vacant seat on the S u p r e m e Court Bench. The reports emanated f r o m Washington, and were published in the local press. R e p o r t e r s trooped to his office, but were met by complete silence. At length he could no longer ignore the published reports and, though he declined to confirm or deny the offer, m a d e a brief comment upon them. " A n y statement would be indelicate and in the worst possible taste," he said. However, he a d d e d : It is the most honorable position in the United States Service, and one which the most eminent lawyer should feel p r o u d to fill. A l l who have filled the office, or who now fill it, however, have accepted the appointment at great personal sacrifice. The s a l a r y of the office is $ 1 0 , 0 0 0 per annum, and it is a well-known fact that a lawyer whose attainments would fit him to fill the position, makes in his practice three to five times this amount. T h e seat was vacant until many months later, when S h i r a s of Pittsb u r g h was appointed. The story of the r e f u s a l was thus p a r t i a l l y confirmed. At a hundred points the life of the great city flowed into the J o h n s o n office. It was the recourse of each citizen h a r a s s e d by litigation, the welltraveled path of notable institutions, societies, associations, and corporations. Johnson was a vital part of the throbbing city; few men since the days of William Penn meant so much to s o m a n y people. N o n e h a d his hand s o firmly and continuously upon the helm of affairs. N o r was he islanded in his own city. He was consulted by private interests and by public officials f r o m the f o u r corners of the Keystone State. H e was retained by attorneys of every c o u n t y : he s p o k e f o r the steel producers of Pittsburgh, the coal interests of the center counties, the r a i l r o a d s that criss-crossed the entire state, and the utilities of cities and towns. Citizens came to him f r o m Allentown and Lancaster, f r o m Erie and Easton, f r o m Williamsport and Y o r k . H e went to Washington more frequently a s his cases grew in number and scope. He disliked to leave his home, and was eminently not the bored husband g l a d to escape the domestic round.

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JOHN G. JOHNSON Withal B u t in a members to d o his

h e was a striking figure, constantly upon the tongues of men. w o r l d that soon forgets the great and the near great, and reeven the greatest o n l y f o r a brief period, he seemed destined work, live h o n o r a b l y , and pass with his own generation.

No one knew better than he the limitations of his work. He realized that power and influence die with the living and mean nothing after death. H e knew that he merely headlined a notorious episode in the courts, or reflected a m o m e n t a r y public interest. In addition, it was a conspicuous quality of the lawyer to be inconspicuous. T h e first function of his office was to get things d o n e : in most matters smoothness was an ingredient of the service rendered. T h e average visitor to his office — l a w y e r o r l a y m a n — d i d not suspect the many problems in which he was engrossed. Y e t J o h n s o n was not a public figure like the governor of his state or even the m a y o r of his city. T o many minds, his outlines remained shadowy and v a g u e ; to the untutored the greatest of lawyers could hardly rise to the dignity of a judge or magistrate. H i s tasks were f a r greater than those of men in public office, and the p r a c t i c a l rewards infinitely so. In fact, his burdens were so enormous as to be c a r r i e d only by a m a n of exceptional health, with a towering zest f o r work, a h a p p y private life, and the c a l m orderliness of a great mind. Besides the stimulus afforded by the collection of his paintings, J o h n son frequently went to the b a l l park or to the Cricket Club. T h e man whose b o y h o o d h a d given h i m little time for play kept abreast of the baseball scores, cricket matches, and prize fights. W i t h a l , J o h n s o n was s i n g u l a r l y unconscious of his own stature. H e remained the most a p p r o a c h a b l e of men. His office was informal in a p p e a r a n c e and routine. T h e r e was neither red tape nor effort to impress. T h e door o f his private c h a m b e r remained o p e n ; business was quickly transacted. W i t h lawyers, as soon as an understanding was reached, he most often m e r e l y initialed a letter or m e m o r a n d u m ; or he summoned his stenographer and, striding up and down the room, dictated an agreement in a few b r i e f moments. His strong individuality, unconventional in every aspect, impressed all who came in contact with him. H e stood above the rank and file to such a degree by his forcefulness and strength that wherever he was retained, opposing lawyers r a n to secure additional c o u n s e l — R i c h a r d D a l e or Hampton Todd or M a y e r Sulzberger. At one time J o h n s o n was asked to pass upon the legality of a contemplated m u n i c i p a l bond issue. T h e projected loan was large and o f vital c o n c e r n to the city. T h e matter was widely discussed in the press; a l a r g e b a n k i n g syndicate was ready to underwrite the many millions. With tension high, J o h n s o n strode into the office of the city solicitor. He asked i n f o r m a l l y of Ernest Lowengrund, the assistant in charge

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LEADER OF THE BAR of the m a t t e r : " I don't want to hand down an opinion that your loan is invalid, but have you levied a sufficiently big tax to take c a r e of interest and a m o r t i z a t i o n ? " T h e latter, a few years out of the law school, pointed out that the loan extended over a considerable period, and mentioned that the Supreme Court had held, if the tax was reasonably c a l c u l a t e d , it would not inquire into the details of actual payments, but would leave that to the city authorities. J o h n s o n listened attentively, and when Lowengrund cited the n a m e of the case, he s a i d : " N o , I haven't seen that case. L e t me look at i t . " A f t e r he had gone over it, he commented f r a n k l y , " T h a t ' s fine. I ' m g l a d you showed me this. Now I can give a f a v o r a b l e o p i n i o n . " I n the forum he was the center of all eyes. His moves were studied by fellow lawyers, and his success with the judges and his power over juries often discussed. Clients exchanged notes about his m e m o r y and his b r i l l i a n c e . A certain intuition enabled the lawyer at all times to c h a r t a course, f r e e of distractions and entanglements. E a r l y in the decade, a good f r i e n d — G e o r g e P a t t e r s o n — w a s admitted to the b a r , he an invitation f r o m the older lawyer to c a l l at his office. H e was two pieces of advice.

direct when found given

" N e v e r become a director of a c o r p o r a t i o n , " J o h n s o n said, " a n d never take an older lawyer into a c a s e , " adding confidentially, " t h e y are not worth a d a m n . " However, when shortly thereafter Patterson obtained his first case, one sent to h i m from New Y o r k , he did consult J o h n s o n . " I haven't forgotten your advice," he said, " b u t I didn't want the other side to get y o u . " W h e n the case was concluded, the New Y o r k attorney asked Patterson to send a bill covering his services and the services of J o h n s o n . " L e t m e attend to t h a t , " said J o h n s o n . Subsequently the young lawyer received an e x t r a o r d i n a r i l y large cheque f r o m New Y o r k , and naturally wondered how hi9 client could afford to pay at least three such fees, since he assumed that J o h n s o n ' s fee (and, of course, that of the New Y o r k a t t o r n e y ) was at least equal to his own. H e made inquiry and subsequently found that J o h n s o n had remitted his entire fee to him. However, the first observation as to directorships was as revealing as his settled policy of accepting all cases, l a r g e and s m a l l , and of serving all clients. He might have been a director of the leading c o r p o r a t i o n s of the c o u n t r y ; thereby he would have limited his power to plead f o r them in the momentous cases that lay ahead. His service to the humble as well as the great lent significance to his career. E q u a l l y impressive

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was his refusal to be diverted into other spheres. Other lawyers—• Depew, Gary, Baer, Morris, and in later years Owen D. Young—left the law to become presidents of client corporations. The young men in the Johnson office had similar opportunities; Thomas Gates later became a member of Drexel and Company, and thereafter President of the University of Pennsylvania. Protégés among the younger lawyers were placed in many key posts. But he himself preferred active practice at law, in which his talents found their fullest expression. In addition to an intuitive knowledge of men, their motives and impulses, Johnson's personality was a strange mixture of pugnacity and kindness, of coarseness and tenderness. There was more than a faint suggestion that he was a difficult antagonist—particularly in his early days. "When he was with you," opined one attorney, "everything was fine. He did all the work, and you just shared the fee—a generous slice of it." "But when he was against you —" A similar note was contained in a statement attributed to Johnson : I encounter three classes of opponents, and lose but little time with two of them. With the really big men no time is lost. We either compromise or fight, and we soon learn which it is to be. With the little fellows no time is lost: I trample them down in the mire. But with the little fellows who think themselves big, oh hell! On the other hand, many lawyers spoke of his invariable courtesy to other members of the bar and his great consideration for the younger men. Carson wrote: No young practitioner ever appealed to him for aid in vain, if any ray of hope could be seen. No man at the Pennsylvania Bar ever softened the edge of defeat for so many young lawyers as did Mr. Johnson. A noted New York lawyer concluded a note of tribute: I write with some feeling because in the earliest period of my work, Mr. Johnson paid me a most generous and encouraging compliment which I can never forget. The impression that Johnson simply brushed aside average opposition and that a substantial irritation was aroused by his brusqueness was given by more than one observer. A noted judge was quoted as saying that there always was a tinge of ridicule of his adversary lurking in his words. Undoubtedly the lawyer played every rôle not only in character, but instinctively. His own interest and the interest of his client operated automatically. In a sense he was the perfect partisan and opportunist, yet it was an opportunism for his client and functioned only after an initial appraisal of the merits. It astonished associates and friends, who

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might meet two distinct personalities at different times, and even in the same conference. Few could understand the mental operations of an unbending expedience. The lawyer who never fraternized on the firing line, who was bold and adamant in opposition while at the same time uncertain and genial as an ally, was inexplicable to his intimates. The Johnsonian profanity was also mystifying. It loomed large in press accounts of the bar leader, and even larger in the gossip of associates and acquaintances. He swore frequently and with incisive virility. Nothing more clearly revealed the compartment quality of his mind and its subconscious adaptation to his audience. With some clients he was cold and distant; with women his manner exuded deference and the chivalry of the polished gentleman. Yet, with the coarser grained, blistering oaths tumbled from his lips, and the saltiness of the sailor or trooper sprinkled every other phrase. One journalist, who interviewed him with a frequency that broke down normal barriers, took his own pallid oath that the usual formula of greeting between the lawyer and that eminent statesman, Boies Penrose, ran as follows: "How are you, you old son of a witch." "How's yourself, you old dastard." In any event the barrister's intuition was unfailing. He paid each man in the coin he liked best, and his instinct for serving his customers their own particular brand was true. Perhaps, too, there was an acute perception that the earthy phrase was a great leveler—with strange power to cast down the mighty and raise up the humble. It shocked a few of the more conventional, but never offended even the most strait-laced. It was a grand escape from normal inhibitions, and a bold defiance to timidity. It might be traced to his early exposure to the vocabulary of the teamster customers of his father's forge, but was more obviously a carry-over of a genial custom of the Civil War decade. It was the touch of nature that made client and caller feel very close to Mr. Johnson. In addition, the cascade of particularly stinging oaths was often so effective as to preclude the necessity of legal action. His displeasure at proposed legislation thus forcibly expressed to a political boss served his clients better than a paid lobbyist. At an earlier time, while he was still under the spell of the men he displaced, he garnished his jury speeches and his paper-books with extracts from authors he had read. Once he told Judge Allison that between the case he was considering and the one relied on by his opponent, Judge Brewster, "there yawned a gulf as wide as any that ever yawned in Rome." In a conflict between City Councils and the Public Building Commission, where "propaganda" had been unloosed, he contrasted genuine public opinion with the product of newspaper agitation in the following words:

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Some reference has been made by my eloquent friend on the other side to what he has been pleased to term the public opinion which has been aroused by this litigation, and which has found expression upon the merits of this case. Public opinion! For a real and genuine public opinion, the voice of the people raised in commendation of a great and heroic deed, or raised to voice the world's condemnation of a great wrong, for a public opinion such as that, I have the most profound respect; but for this putrid and counterfeit thing brought into being at the call of selfish interests; this unclean thing arising out of the miasma of partisan politics; this monstrous thing lashed into fury by a sensational or corrupt journalism, for a public opinion such as that, I have only the most supreme contempt. Before each court he was the commanding figure. The vigor of his intellect was equaled by his grasp of every situation and his instant understanding of the strength or weakness of his client's cases. He had too the ability to say within the time limited by rule of court everything necessary to be said. On the rare occasions when he asked for an extension of time he would fail to use it. When he spoke, paper-books would lie unopened on the bench, for the judges who heard him knew the facts of the case would be correctly stated and that he would faithfully help the court to reach a correct conclusion as to the law. The spectator felt himself in the presence of a powerful, straightthinking personality. In thirty or forty minutes he presented the arguments in a most important case involving the constitutionality of a tax law. He held the court completely, and impressed on it in unforgettable fashion the exact position which he believed to be decisive. He did not stop to read extracts from a brief or go into non-essentials. His mind seemed to fly to the point at once, and he drove it home. His freedom from artificiality or device of rhetoric was in itself a force, coupled with a virility and common sense that was most compelling. As a cross-examiner Johnson was formidable. His theory and his manner varied with the case and the witness. He would comb out some witnesses, he would crush others. Some he would cajole, others he would ridicule; some he would confuse, others he would terrify. With some he was insinuating and gentle, with others he was stern and pitiless. A broker attempting to explain a questionable transfer of stock tottered and fell senseless in the witness box beneath his blows. In a contested will case he destroyed the composure of a self-sufficient witness with the grim salutation, "Now, Major, let me sharpen my teeth on you." Another man, whose name was Liberty, he addressed as "Mr. Freedom." With withering contempt he would say, "That will do." Sometimes he made his principal argument in the form of adroit questions on cross-examination. Sometimes he would reveal the character of the witness by a single word. On cross-examining a real estate broker who

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had been receiving commissions from both sides in large amounts, he asked: "Tell me, then, how you got this money into your hands, possession—oh, I am not particular as to the phrase I use—into your O H

maw r In one case business men of high position were examined by him. The first was so confused that the others who heard it went upon the stand prepared, as they supposed, to meet the same line of cross-examination. The lawyer attacked each witness upon a different line, and, bright men though they were, they were not able to withstand successfully the skill that made them witnesses for Johnson. Johnson had also a native sense as to the character of testimony. In a case where a mass of correspondence had been produced, his quick eye detected that there was a gap in the sequence. Scenting the existence of a missing letter, he asked the witness whether all the correspondence had been produced. Receiving an affirmative answer, he dropped that line of inquiry, but again returned, and again receiving a positive answer, he again passed, to return a third time with persistence and solemnity. Finally, the witness recalled, or at least admitted, that there was an intervening letter. "Ah! I thought so," murmured the crossexaminer; "now suppose you let me look at it." The letter proved to contain matter which was conclusive of the case. Observers found it difficult to describe the impression he made. His manner varied with each tribunal, with each cause, with each witness. He could be grave or playful, denunciatory or sarcastic, subtle or innocent, profound or transparent, conciliatory or overwhelming. His experience, unmatched in variety and extent, extemporized arguments to meet sudden situations, and hundreds of cases snatched from jaws of defeat are buried in the records of the lower courts. He stood alone, even among the ablest; younger men viewed him with the awe paid by savages to a tribal king. The senior bar regarded him as the safest of colleagues, and the soundest of consultants. The problems submitted to his judgment became greater each year. Withal there was no relaxing of principles or ethics; no artifice or deception, no resort to black art. There was versatility, and there was art, and arts, but as one associate expressed it, "they were manly arts." His conduct was a code of ethics; his word was a covenant. He was the embodiment of legal wisdom and sanity. The number of his clients and cases furnished no key to the affections he aroused. Nature had been prodigal at his birth, and to power was added a virile charm. "He was a handsome m a n , " recalled a great merchant, who was among his early clients. "He was a man," stated another more simply. "Physically, mentally, and of heart, he was supremely great," wrote a third. The man and his office were a salutary influence in the growing city.

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Ordinary men and women, little men of business, great financiers, invoked justice in his name. He stood ready to serve, and that readiness settled controversies, and thwarted oppression. Other lawyers might remonstrate that his modest fees were disrupting the profession, but he wanted no fear of his charges to stand between him and the humblest client. At every hour in his office he was accessible to all. The attitude of his own associates toward their leader was well expressed by Francis Biddle in The Llanfear Pattern-.* ". . . and there's John G. Johnson," cried he [Lawyer Brackway] . . . "Johnson, the greatest lawyer the world has ever seen! There's not a New Yorker can touch him. And he's great in a great time, vast corporate organization, great trusts, world-embracing corporate business . . ." Undoubtedly, Biddle was voicing his own estimate, as well as the view of one of his characters. * Charles Scribner's Sons, 1927, p. 63.

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XX

Mr. Johnson Goes into Conference D E S P I T E the counter-currents of the mid-nineties and the grim realities of these lean years, the tides of progress and industry were soon running strongly. Bumper crops in lucky America, while Europe shivered in late summer and its grains withered, filled the holds of west-going ships with gold and huddled immigrants. The debacle of the preceding years was forgotten in the new exhilaration. The railroads were making money again, and huge consolidations sponsored by the elder Morgan were under way. The country w7as definitely out of the bush leagues, and ready to take on all comers. It had investments in China, holdings in South Africa, broad interests south of the border, and Hawaii and the Philippines to remind it of world power. The great cities of America were thrusting out into the adjacent fields and farms—some slowly and steadily like New York and Boston, some swiftly and fitfully like Chicago and San Francisco. Philadelphia too was advancing on every front. The business center was moving westward; the four corners of Broad and Chestnut were undergoing the first changes since the seventies. The three-story shacks occupied by nondescript shops, the tavern and the shabby hotel were being demolished; new buildings were projected—the Real Estate Trust, the Land Title, and within a stone's throw of the City Hall, the Morris, the Bellevue-Stratford Hotel, and Wanamaker's. North, south, and west the city was breaking its bonds, and consolidation with outlying sections, which had been legally decreed in 1854, was becoming a reality. Along the Germantown Pike, in the Northeast, in South Philadelphia, and in the new regions west of the Schuylkill, row upon row of brick dwellings was being constructed. A few miles from the City Hall in these sectors the continuity of red and brown brick residences had ended abruptly. Now the city was overflowing into the long stretches of open fields, vacant lots, and farms. The pick, the plow, and the shovel were digging into the hard earth, and the heavy dump carts were hauling away the tons of soil. Hard

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muscle, harder swearing, and the heavy black whip of the teamsters hollowed out the cellars for the heaving, growing, expanding metropolis. New lines of trolley track were being laid down, and over all a gay boom-town expansiveness pervaded as the city passed the million mark. The old century passed out like a great firecracker—with a blaze of enthusiasm for a new millennium, and the flare and resounding crash of two wars. The crusade against Spain brought little questioning. All doubts as to the means were cast aside by the final triumph and happy end—the removal of the last focal infection of old-world tyranny. On the other side of the Atlantic the Boer War had fanned a great war spirit, but had raised many doubts among thoughtful Britons. The murmurings against the smug zeal and assurance of victory were echoed by many in this country. In public talks and letters Judge Pennypacker voiced the indignation of many elements. "The most important works on the rights of nations," averred the legal cynics, "are being put out by Krupp's." The star of the Johnson family was in the ascendant. The name was now in the social register. Son Edward's brilliant marriage to Louise Drexel had placed him on the highest rung of the social ladder. Serious and painstaking, he worked hard as commander of the City Troop and as congressman, but social duties such as come to a M.F.H. also rested heavily upon his shoulders. Withal his chief interests were social and charitable, and his daily routine the many but pleasant tasks of "the late George Apley." From every side, social and family claims were tugging at Johnson— the pleasant small talk, intimate social functions, the congenial dinners, informal gatherings in Philadelphia and Washington, Baltimore and Newport. Each season made new demands, with the Southland calling in winter, Europe in the spring, and half a dozen spas sending inviting notes in the fall. The lawyer was no longer young; he had laurels and victories enough. A few minor shifts in his office would have placed the burden upon younger men and left him free for the easier duties—for his paintings and pleasures. But he was not to be swerved from his work. Cases and clients piled into the office, and each day at his desk he was ready to listen, and to go into the courtroom if necessary. The busy practitioner had not indulged in the distraction of a telephone in his private office. The many calls to which he would have been subjected would have made impossible the concentration his work required. Later a special private wire was installed by the Pennsylvania Railroad. It was over this that the lawyer was to advise his client to rip out the poles of the Western Union Telegraph Company when Jay Gould found in A. J. Cassatt a will as strong as his own. The daring of these advices can only be appreciated by a careful study of the litigation. After a reverse in the lower courts, a closely divided Supreme [196]

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Court upheld his view. The extreme narrowness of the issue and the technical considerations that stood between victory and defeat would have deterred a lesser man from such a decision; a more sensitive man might have withered under the responsibility. But Johnson continued his way smilingly. His attitude was that of Judge Parsons, who had replied sharply to a questioner, "I have never lost a case in court—because I never had a case. My clients have lost many times, but their cases were not mine." This meant only that he fought more fiercely and effectively, because his advocacy was intellectual and, like every great artist, he had the capacity to transmit emotion without being consumed by it. The telephone did serve a purpose. On one occasion at least, the lawyer got rid of accumulated temperament by flinging it clear across the room. But if he could not be reached by telephone, he was accessible to callers, and the door of his private office was always open. Such was the invariable rule until the late spring day of the first year of the new century, when for several weeks it was closed even to old and intimate friends. These years saw the death of Judge Carroll Brewster, and a tragic end of the career of James Shakespeare, long known as one of the hardest workers at the bar. The latter had scored many victories in the courts, but near the end of his life he had been driven to madness by the escapades of his wife. In spite of his efforts, she had divorced him and had married a Count whose title was as unreal as his fortune. Before the honeymoon was over the Count was in prison, the wife was dying in a sanitarium, and her former husband was in an insane asylum. On March 15, 1901, rumors circulated that Johnson was slated for a seat in the cabinet of McKinley as Attorney-General. The persistence of these rumors was finally ended when it was intimated that Johnson could accept no such appointment. His own obligations to clients and to the profession were too great. Too many important cases which he was handling were threading their way through the courts. The long litigation involving the Pullman Company and the legality of the activities of the Joint Traffic Association was still unfolding. Many other actions in the highest court were under his charge, of more local, but by no means restricted, interest. The suit involving the trademark "Hunyadi Janos" did indeed receive press notice, but local newspaper comment was taken up with an occasional scandal or other juicy morsel involving the law and lawyers. A sensational divorce, the antics of the more colorful lawyers like "Chippy" Patterson or "Foghorn" Fow, the elopement of Lawyer Piggett with another man's wife, furnished the general reader a lurid account of bar activities. The disappearance of a rich young lawyer who

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had been spending too much time at the Gloucester Race Track, the disbarment of a former district attorney in Lancaster, or the spectacle of a local practitioner in the prisoner's dock on a minor charge, received gleeful notices. The Holmes poison murder, with its aftermath of a disbarment scandal, was given adequate space, but otherwise only the passing of such figures as Thomas Hart, Samuel Dickson, Edward Weil, Oliver Hopkinson, and Richard P. White was noted. The death of Chief Justice Paxson made the headlines, after the usual obituaries, when it was discovered that the codicil of his will disposing of an estate of several millions had the signature of only a single witness. Several charitable bequests were involved, and it might be wagered with assurance that the legal issue would find its way into the Johnson office. It did indeed. There was little difficulty, for the law was clear. But it was in the hearing upon this question that Mrs. Paxson startled the courtroom with a grave charge against the renowned attorney. Johnson's aplomb was in no wise disturbed. The situation called for light, not heat; in a few minutes the good lady's confusion was cleared up. The cases in which Johnson was retained had reached such proportions that even bare reference is impossible. Issues of local and even national importance must remain buried in the great mass. Many made headlines in the press, filled columns with facts and figures, and were the subject of eager comment or gossip. Each added its mite to the repute of the lawyer, and formed the background for the part he was to play in the succeeding decades of American life. As counsel for the Pennsylvania Company, which was the trustee of the general mortgage of the Reading Railroad, he played the leading role in the reorganization of that road. Receivership proceedings had been instituted on behalf of individual bondholders nearly two years before his entrance into the case. However, the steps taken by Johnson in March 1895 brought about the foreclosure of the rail property. It was a part of the general plan which was sponsored by the Morgan interests and its local representatives, Drexel and Company. The proceedings involved many conflicting claims of creditors, stockholders, and different classes of bondholders. It raised a stir far beyond the purlieus of finance and business. The Reading was in desperate straits; much financial surgery was necessary. Dead tissue had to be cut mercilessly. Johnson defended the plan in the highest court, and it was apparently the best under the circumstances. As counsel for the corporate trustee, as well as an officer of the court, Johnson's obligations extended far beyond any private client. And it was part of his temperament to fulfill such duties with scrupulous care. Within a year he brought suit against the Morgan and Drexel firms

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on behalf of the Widener and Elkins interests in a deal involving the consolidation of the Pittsburgh "underliers"—the many street railways of that city. The special facts of these private brawls between the traction tycoons and the most powerful Wall Street bankers are of little moment. The Philadelphian met defeat in the lower courts, but obtained a reversal in the highest state court—a particularly sweet victory. He was opposed by Dale and Dickson from his own city, and the Pittsburgh firm of Knox and Reed. For good measure the bankers relied upon their own counsel, Francis Lynde Stetson, friend and one time law partner of Grover Cleveland. Stetson was one of the leaders of the New York b a r ; he was related to J. P. Morgan and had often represented the Morgan interests in the Supreme Court of the United States. The complete rout of this formidable line-up was one of the many items that added up to make Johnson the head man in the great cases of the next twenty years. In the Morgan-Widener fight the court commented upon the voluminous testimony and the multitude of documents that had been offered in evidence. But this was typical of most of the cases the lawyer was handling at this period. Bankers and magnates had no lien on his time. He acted against the Board of Education in the fight of women teachers for equal rights in the selection of principals. Many types of litigation were now familiarly associated with his office. He was taken up in maritime and divorce actions. He acted for the heirs of a maiden lady of eighty-nine, whose will, made two months before her death, left most of her estate to her confidential adviser. He was retained in many troublesome lawsuits that followed fraud—the forgery of checks or of stock certificates. He acted in the disputes involving Sousa's Band, the Philadelphia Ball Club, and the special contract of Napoleon Lajoie. He fought his fellow townsman George Harding, the foremost patent authority in the country, and other specialists, in many vital cases of infringement. He passed from issues of trade libel to bribery of municipal councilmen and the legality of a State "Ripper Bill." He debated the salaries of county officers, the fine points of adultery, and the propriety of investments of trustees. He jumped from coal mining to spiritualism; and against the insistence of an old friend and opponent, James G. Gordon, was unable to convince the highest court that one who communicated with departed spirits through mediums and gave most of his estate to an association of spiritualists was mentally unsound. This was one of the famous cases he lost. It was widely discussed at the time, and lay opinion differed sharply from the strictly juristic. Most of the estate went to the "First Association of Spiritualists of Philadelphia." That this corporation had been duly chartered by the County Court had been the strongest argument for the bequest. It

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JOHN G. JOHNSON might also indicate that when the law, like an individual, makes one mistake, it always makes at least two mistakes. In these crowded years at the turn of the century a long succession of victories lighted his path through the courts. In the primary courts before juries he had reached the highest effectiveness. Characteristically poised, speaking in little more than conversational tones, a single finger marking a staccato beat to his points, he seemed able to weave a mesmeric spell. Mainly his forte was shrewd common sense, the man of the soil speaking the language of the people. Usually he dwelt upon striking bits of evidence, played up the strong points of his own case, and hurled every shaft of ridicule at the weakness of his opponent. On occasion, when the fat was in the fire or the prospect well-nigh hopeless, his jury talks took such a singular turn that experienced lawyers were filled with dismay. His confidence—real or assumed—in his contentions was highly effective with judges, and simply devastating with juries. Against weaker opposition, the simpler devices of hammering one faltering witness, or pounding a single strong point, often turned the scales before the judicial machine had really begun to function. In special groups of cases his powers were seen at their best, as in land damage and corporation suits. Yet he owed nothing to grace of manner or tricks of voice. He was bulky and awkward, and so high in pitch as to be sometimes shrill. In pouring out his words he was like a high-pressure fire hose. To hear him the first time was to suffer disappointment. His reputation for verdict-getting stirred visions of a Choate or a Cochran, a Webster or a Brewster, a Cuyler or a Sheppard. The actuality was simply force, overwhelming force: a huge man with intense gaze, sweating at every pore, with both hands extended, one holding his eye-glasses, the other clutching his handkerchief, driving home a few points like railroad spikes into a tie. He jammed meaning into words: his speeches were as rapid as they were brief. No one could tear the heart out of a situation with so swift and so powerful a hand, or spend so little time and effort on mere detail. But all his virile force was held in careful check. His caution was as remarkable as his persistence. When a colleague suggested a question for cross-examination, he quickly replied, "Don't taunt a polecat." On another occasion he expressed the opinion that no question should ever be asked a witness unless the examiner was sure that there was not a " m o r a s s " under it. In a few cases the witness had the better of it. In a suit involving Sousa's Band, he flourished a signed paper in the face of the witness, a member of the band. "This is your signature, is it n o t ? " he asked. The witness nodded. [200]

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"This is your solemn contract?" he insisted. The German witness was not abashed. "Dot contract's no goot," he replied coolly. "Why n o t ? " asked Johnson. "Veil, if I do not vish to keep it, I blay out of tune." No one laughed more heartily than Johnson himself, who promptly dropped the examination. In the same case he cross-examined Sousa, and got him all tangled up in contradictions. These were mainly in letters which Sousa had written from different places where he was giving concerts. The lawyer fiercely demanded an explanation of the contradictions, and the tortured Sousa smilingly replied: "Mr. Johnson, have you ever played one-night stands?" This, too, appealed to Johnson, for he was a thorough sportsman in such matters. On another occasion he was examining a defendant most vigorously, with his eyes and face riveted on the jury. He asked a question—one of his favorite questions—that would hurt the witness whichever way he answered it. All the while his gaze was directed at the jury. A long space elapsed without a word being uttered. Johnson waited for the witness to answer, still with his eyes turned towards the jury. The silence finally became so pronounced that he had to withdraw his gaze from the jury, which he did reluctantly. He looked at the witness. "Well, Mr. Witness?" he asked. "Well, Mr. Johnson," the witness replied. "Why don't you answer the question?" "I didn't know you were asking me a question, Mr. Johnson; I thought you were addressing the jury," replied the witness innocently. Early in 1902 an item of news came to city editors that sent reporters scurrying to the office of Johnson. The special staff which covered court happenings had noted a suit started by the attorney on his own behalf. Investigation revealed that the lawyer whose indifference to fees was proverbial—and whose ethics had been described as "pernickety," had brought suit for a fee. The next day's headlines created a sensation among the lawyers of the city. The press accounts emphasized that suits of this nature were almost unheard of, and were brought only upon the greatest provocation. The suit was brought to recover $1470.95, with interest, and $12.54 costs which had been put out by the attorney. The news accounts not only stressed his position as the leader of the bar, but set his earnings at $200,000 a year. They pointed out that his usual charges were so moderate as to be the delight of the average client and the despair of other attorneys.

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An explanatory statement came f r o m Johnson. He had started the suit merely as a matter of principle, and it had been marked to the Seventh District Association for organizing charity. "I have donated the claim by the annexed declaration of trust," he said, "because of my own indisposition to bring a suit for fees for my own benefit, although I feel compelled to prevent the client f r o m escaping the payment of a just debt." The client, who was not lacking in brass, countered with a blast that the attorney had already been overpaid. The facts of the case, as well as Johnson's method of raising the issue, are of interest. The legal background was of little significance. The defendant, Bernard Corr, was one of the legatees of the will of Michael Corr, and had asked Johnson to contest the claim of the residuary legatees for the purpose of obtaining an additional one-sixth of the estate. The lawyer had stated that in the event of failure his fee would be nominal, but in the event of a recovery he would charge ten percent. The case was won and brought a substantial award to Corr, who thereupon reneged on the arrangement that had been made. In the usual routine, the moneys would have been paid by the executors to Johnson, who might have retained the fee and forwarded the balance. His client would then have been confronted with the problem of either accepting the lawyer's cheque or returning it and entering suit. As he admitted his liability for a fee of $1,000, such a course on Johnson's part would probably have brought him to terms and ended the matter. This was precisely what Johnson was unwilling to do. He stated: I requested the Executors, although the amount had been awarded to me, to pay the whole amount directly to Bernard Corr in order that his duty to compensate me should be determined by a jury. I was unwilling to have the question arise by retention out of the amount paid over of a disputed fee. Corr proved to be a surly antagonist. He was keen enough to throw at Johnson the charge that by the assignment of the claim to a charity, he was taking an undue advantage. However, after he had made several unsuccessful efforts to retain another lawyer to fight the case, he saw the error of his ways, and the matter was settled quickly. The charge of ten percent, which was contingent upon success, by every standard was low. Johnson's relations to other members of the bar were a source of pleasure to him throughout his long career. They consulted him freely; often he was called upon to pass on disputed questions, and to iron out the many difficulties that arose in the heat of battle. His knowledge of the lawyers of other cities was amazing. F. F.

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Brightley, who had known Johnson as a boy, told a story of consulting him about a case in the London courts. A discussion arose about the English barrister who was handling the matter. Brightley was surprised at his consultant's easy familiarity with the English advocate; he knew more about him than did Brightley, who was a first cousin. Johnson took pride, however, in carrying on a tradition of the Philadelphia bar, which had done much to ease the path of the younger lawyers. He delighted to lend a helping hand where they had run into difficulties. He frequently spent much time with law students and others who aspired to be lawyers, discussing their problems and prospects, and giving advice that was as sincere as it was practical. One lawyer related that as a student he sought Johnson's guidance, and was given such calm, unhurried attention, while a long line of clients waited in the outer office, that the episode was etched unforgettably in his memory. Another, a noted judge, who had battled with and against Johnson in cases of the greatest importance, surprised the writer by beginning his interview with the remark, "I am particularly anxious to add my bit to his memory, because early in my career he helped me in a personal difficulty of special moment to me at the time." As an active practitioner Johnson realized the multitude of situations in which the conduct of a lawyer was open to misconstruction. He knew that a lawyer without friends or influence was often helpless against unjust accusations. At that time, as ever, the bar was under attack. Clients might take up the time, and even the moneys, of the attorney, without evoking special comment. The reverse was not only a criminal offense, but hot news during that period. In the courtroom the lawyer was confronted with even more serious problems. He had to be fair and courteous, yet meet the attacks of his opponent. He had to be respectful, yet resist domination by the court. In the excitement of trial it was not surprising that these narrow limits were overstepped. When judges themselves ceased to be judicial and became partisan or arrogant, the most experienced barrister despaired of meeting the situation; the courtroom was then as always a field of battle and not a bed of roses. Most of the judges understood—as Craig Biddle wrote—that the judicial function was not merely to decide, but to hear and decide— oyer and terminer. There were the usual exceptions. One judge, who had been a brilliant advocate, failed to shine as a judge. Two anecdotes went the rounds to indicate the despair of the bar. On one occasion a young lawyer was arguing a motion for a new trial, in a case which had been lost before him. "You tried the case and lost it," rasped the judge. "Why should we give you another chance?"

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"Oh no, your Honor," retorted the lawyer, "you tried my case and lost it for me. I should like to try it myself." The second story was more embracing. On one occasion this dogmatic judge, noting that his courtroom was crowded with attorneys, requested those who desired to move to the adjoining chambers of Judge Bregy, who was free for new assignments. Forthwith every lawyer in the room marched out. Johnson's name was coupled with another of these tales, to indicate that in the midst of a trial he gathered his papers and walked out of the courtroom. However, there is nothing of record to substantiate the story, and all the indications are against its truth. A noteworthy incident actually occurred, in which his assistance was requisitioned on behalf of a young lawyer who later became one of the leading criminal attorneys of the city and was also counsel in the Securities and Exchange investigation of 1933. At that early date, William A. Gray was an assistant district attorney, and was prosecuting a murder case before a young judge newly elevated from the district attorney's office. The two men had been on friendly terms. At the end of the long trial, in which there was a not unusual number of spirited exchanges between the public prosecutor and the bench, the judge startled the courtroom by announcing that he would hold Gray for contempt. He set an hour only a few days later, at which date the young man had to show cause why he should not be punished. The late afternoon papers carried the news. Gray was nonplussed. He felt that the Judge had been quick to take offense, and secured many affidavits from newspapermen in the courtroom to refute certain statements which had been attributed to him as the basis for the complaint. Although his chief, in a statement to the press, indicated his intention to stand by him, it was not a comfortable situation for a young man just embarked upon his career. He retained Alexander Simpson, Jr., an able advocate who later sat on the State Supreme Court. Simpson suggested that the matter was of sufficient moment to warrant consultation with Johnson. The latter evinced more than a purely professional interest. Under his sure touch, things moved quickly. He communicated with Judge Sulzberger, a close personal friend, who quickly saw that his colleague on the bench had made much ado about little, and was in an untenable position. Under this and other pressures that Johnson knew how to exert, the hearing set to punish Gray resolved itself into an exchange of amenities, with the bench playing its part with only fair grace. However, the incident was closed. Once more Johnson had demonstrated not only his predominant influence with the courts, but his readiness to defend the bar against unwarranted assaults. Fortunately this power was exerted with careful discrimination. At

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times the recorded decisions seem to indicate that judge or jury yielded to the wizardry of the advocate. But mainly the courts seemed to make allowance for the tug of his powerful insistence, not infrequently going out of the way to hold the scales even. Admiration for power and contempt for weakness ran side by side with even-handed equity, and neither could be ruled out completely. These years saw Johnson engaged in many important cases in the Federal Supreme Court. They also saw him in heterogeneous litigation in all the courts—case after case, in which the final opinion begins with a reference to the size of the record and the endless task of wading through it. Only a ravenous appetite for work, an insatiable desire for printed pages, an uncanny memory for testimony, made possible these endless tasks. He noted every phase of testimony and never let it slip from his mind until the case was closed. Hence he needed little study of the record before the appellate bar. Through these years local politics were humming briskly. Prichard, Johnson's associate, was active in civic reform, but Johnson himself remained entirely aloof. However, at the end of many political battles were a number of lawsuits between contending factions or office holders, involving mooted legal questions, whose argument was usually found in charge of Johnson. Sometimes litigation was the opening gun rather than the final salvo of the political campaign. In one case, suit was brought questioning the existence of the public office on the eve of the election. The legal talent was largely political, but Johnson was called in as associate counsel. Many of these cases arising in political feuds and elections came from distant parts of the state. The questions involved usually simmered down to matters of pure law. Johnson accepted such work, as he was entirely indifferent to the partisan issues involved. The flow of private litigation was as steady as ever. Sometimes the issues were merely technical, though at all times complex. The list of cases in which he secured reversals in the higher courts was never more impressive. Volumes of the reports instance successions of several and even half a dozen critical cases in which Johnson convinced the higher courts that an erroneous theory of the law had been applied, or that important principles of evidence had been violated, or that a littleknown rule of the common law had been overlooked. The variety of these cases is as mystifying as their number. Many involve the controverted questions raised by undersurface mining in the great coal cities of Pennsylvania. In this field the law governing many problems raised by building and maintaining cities over coal mines was formulated. The miracle of these constant appearances in the courts can be gathered f r o m these lines f r o m the Supreme Court opinion in a single

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case involving a fairly simple partnership issue. The Court began its opinion: We have before us in this case the paper books. Appellant's alone contains 709 pages of printed testimony and exhibits. There are besides, appellee's paper books and supplements on both sides. To make an intelligent decree involved a most thorough examination of all this testimony, of the papers and witnesses. Even in the lower courts, where the financial interests were minor, legal questions of great complexity arose. The legal repertoire throughout these years included criminal as well as civil cases, and the ease with which Johnson turned from one subject to another was reflected in the headings of the reports. The entire pattern of the life of the city and state, and the march of events find their echoes here. The construction of new buildings, which went on feverishly at the time and was remaking the entire map of the city, can be read in these decisions. The growth of mercantile establishments, the failure of banks, the embezzlement of trusted employes resulted in legal knots which eventually had to be untied. But even the volume and scope of these many matters in the local state courts, and the vast litigation Johnson was feeding through the federal courts into the more restricted channel of the Supreme Court of the United States, were to be eclipsed by the endless story which James Hill was pouring into his ears in many a session. The action taken by the Government to sever the Siamese rail twins of the great Northwest had attracted the attention of the entire country. To Hill it seemed a direct challenge to the aims of his entire career. His story involved nearly four decades of the history of a vast empire. It was Johnson's custom not merely to give expression in the courtroom to dry legal principles, but to voice the emotions of his client. Thus it came about that visitors to the Johnson office for the first time found the chief "in conference"—a phrase which for decades had been an abomination in his ears. But now there could be no interruption. Hill talked hour after hour in the quiet office of the lawyer. Johnson rarely interrupted, as he sat in his swivel chair, his hands clasped behind his head, his eyes halfclosed, listening intently, absorbing facts and figures and, of equal importance, the motives, the daring, the courage—the long story of a great dream and a great empire. Yet the routine of the office was unchanged in one respect for the benefit of this illustrious client. Johnson had refused to go to Minneapolis for consultation with Hill. If, on his numerous visits that spring, other clients were ahead of him, the magnate had to wait his turn. This brusquerie was not specially aimed at him: other important men had felt the lash of the lawyer's independence.

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XXI

The Northern Securities Case E A R L Y in 1901 a young man of forty-two who had flashed across the American scene was giving serious consideration to completing his legal education with a view to formal admission to the bar. He was the holder of public office, but felt at the time that his public career was at end, and that he should prepare himself for a life of usefulness. The young man was Theodore Roosevelt, who had become Vice-President of the United States after his term as Governor of New York. He wrote John Proctor Clarke, then Justice of the Supreme Court of New York: Just a line in reference to my studying law. I have been one year in the law school, and at that time was also in my cousin John's office. Now, could I go into an office in New York—say Evarts and Choate, or study in New York or here in Oyster Bay—so as to get admitted to the Bar at the end of my term as Vice President? With the same intention he questioned Alton B. Parker, then Chief Judge of the New York Court of Appeals, three years later his Democratic opponent for the Presidency. Judge Parker advised him to enroll in the Columbia Law School. Roosevelt replied: "As soon as I get back to Washington, I shall begin to attend the law school there, and when I have completed my two years course and feel myself fit, I shall apply for the examination." He also consulted Justice White, later the Chief Justice, as to the propriety of enrolling as a student at one of the law schools at Washington. White thought this inadvisable, but advised the younger man what law books to read, and offered to quiz him every Saturday. That was late in March. In mid-September of the same year Roosevelt was President of the United States. His career up to that time had been spectacular, though constructive, and had aroused misgivings in [207]

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conservative quarters. An extreme editorial in the Washington voiced a deeper distrust of Mr. Roosevelt:

Post

He has at all times been far too theatrical for our taste. He pranced too much in war. He vociferated too much in politics. We have not found him great in the uniform of a soldier or impressive as the superstructure of a bucking bronco. Less than a year before, Mark Hanna, most powerful of political bosses, had boasted that he was going to Washington to see the newly elected Vice-President take the veil. After the tragedy at Buffalo, he expressed himself less delicately: "Now, look, that damn cowboy is President of the United States!" The young man's proclivities as Governor had also drawn an admonitory rebuke fronj Boss Piatt, to whom his statements about the trusts sounded like the effusions of western senators, and quite unworthy of the executive of a great eastern state. A fixed plank of the more radical Democrats dealt with the trust question, but by 1900 it had become a secondary issue. Bryan, whose ear for popular overtones was the second best in the country, preferred to sandwich the matter of monopolies between the more vital plank of anti-imperialism and the less important issue of free silver. The trust question temporarily became academic. Cloistered men wrote books about it, but the stock market seemed healthy, prices of securities were advancing again, and Democratic measures for regulating large corporations sounded a discordant note to the country on its way back to prosperity. The first message of President Roosevelt to Congress characteristically took no decisive position on the trusts except to state that if it had constitutional power, Congress should provide for national "supervision and regulation over all corporations doing an interstate business"; and that "there should be created a Cabinet officer to be known as Secretary of Commerce and Industries." As a century ended and another began, a number of events paved the way for a new consciousness of trusts and monopolies. The common man had heard much of invisible government, the money interests, the gold bugs and Wall Street. Since the publication of "The Man With the Hoe" in the San Francisco Examiner in 1899, the picture of the average American as puny, harassed, driven, always oppressed by immense, obese figures labeled "The Trusts," had taken on the terrible reality of the unreal. A continuous barrage of cartoons pictured the bloated magnates of business, always resting on the backs of the toiling masses. Thus it came about that the brief panic that was precipitated by the [208]

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corner of Northern Pacific took on a sinister meaning. Actually it was not the result of the clash between the Morgan-Hill and Kuhn-Loeb-Harriman interests. It arose more directly from the desire of traders to profit from the rivalries of giant factions, and most pertinently from the readiness of the speculatively minded to sell what they did not own. The net effect of the episode was a further distrust of Wall Street and a deeper suspicion of the processes of big business. Only a short time before, the President had written: "The mechanism of modern business is so delicate that extreme care must be taken not to interfere with it in a spirit of rashness or ignorance."* Now he turned to his Attorney-General, Philander C. Knox, for an opinion on the legality of the newly projected Northern Securities merger. The answer of his legal adviser is not clear. Normally the Attorney-General's opinion upon constitutional matters weighed little with his chief. In fact, Knox is reported to have said ironically on one occasion: "Ah, Mr. President, why have such a beautiful action marred by any taint of legality?" The suit was brought, and the next day the markets of the world—in New York, London, Paris, and Berlin—were demoralized. Morgan went white with fear and rage on the receipt of the news. Hill had characterized Roosevelt as an adventurer who had done nothing but pose and draw a salary. Now, aggrieved but chastened, he was pouring his long story into the ears of Johnson. Such was the background of a celebrated lawsuit. On the side of the prosecution was the President—his ear attuned to public outcries and his mind certain—for the time being—that the "trusts" barred the way to national prosperity. On the other side was merely a ruling of the highest court, the doubts of thoughtful men as to the efficacy of the "Big Stick" as a cure for economic ills, and Johnson. Against the latter in the grave battle that was to extend over the next two years were his old friends of Knox and Reed. He had opposed the firm in many important cases, including the contest between Frick and Carnegie and the clash of the Widener and Morgan interests. They had been happy to obtain his opinion or his help in difficult situations. The case moved to a climax in the spring of 1904 as Roosevelt laid his plans for a second term in the White House. The circumstances were of extraordinary interest. Rarely was the course of history so reflected in a Supreme Court decision. Rarely were the strength and weakness of democratic institutions so highlighted, personalities so sub* Contrasting with a statement attributed to Roosevelt, OUT Times, Vol. II, p. 250, Mark Sullivan (Charles Scribner's Sons, 1927) : "Wise fools in Wall Street think they can go on forever. They can't. I would like to be elected President to be the buffer between their foolishness and the wrath that is surely to come— unless they sober up."—New Haven Register, 3/4/1909.

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merged in principles, and principles so sternly tried by the march of events. The contest was more than a case at law: the trust question had been argued with heat and passion at every rural crossroads. Every angle of the controversy had been the subject of political debate and academic scrutiny. To the nation roused by years of trust abuses and agitation it seemed a fork in the road of destiny. The paradox of plenty—want in the midst of abundance—a long recurrent malady, was palpable to the common eye. Man had become the victim of his own ingenuity, and could not master his own machines or the complexity of the economic organism. Financial and economic power had been perverted into absolutism, and democracy was adverse to absolute rule, even if, as urged by some, it was a beneficent one. The belief was well grounded that great power needed curb and regulation, even as the political machinery was guarded by the checks and balances of the Founding Fathers. Even the last had taken on a new meaning with revelations of huge sums passing from the men of business to the men of politics. Government controls had not yet caught up with the billion-dollar industrial units. In the light that beats upon the highest court when grave issues await decision, Johnson handed up his briefs. He was particularly keen on winning this case. The consolidation of two parallel lines that had engaged in a disastrous competition seemed eminently desirable for the future of the great Northwest, and for the country itself in the markets of the world. There was an added personal reason. The procession of industrialists and financiers had yielded surprisingly few men in whom he felt more than a passing or professional interest. In Hill he saw a man of mental scope, with the ability to plan broadly and to work minutely. He also sensed warmth of personality and awareness of public duty, usually absent in anti-trust defendants. Not that Hill was beyond merited criticism or calumny. It was easier for a camel to go through the eye of a needle than for a rich man to escape both. Had not a hostile farm journal once written: "Last year we had the locusts; this year we have H i l l ! " It was a tribute to Hill's operating genius that his road, the Great Northern, had been able to take over the Northern Pacific in 1893, in the depths of a great depression, with most roads in or near receivership. However, there was a Minnesota statute of 1881 against the consolidation of parallel or competing lines of railroad. A decision of the Supreme Court of the United States in 1896 definitely ended any belief that the Great Northern by the terms of its charter might be exempt from the scope of this statute. [210]

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The actual result was a reorganization of the Northern Pacific by the principal stockholders of the Great Northern in their private capacities. Hill and his friends had a substantial stock interest in Northern Pacific, and put the road on a firm basis. The association of Morgan and Hill, which had made this possible, led to a practical consolidation of the operations of the two lines. Meanwhile, the Union Pacific had reorganized, and under the aggressive leadership of Harriman challenged the Hill lines in states bordering the definite spheres of influence of the two railroads. This spurred the acquisition of the Burlington System by the Northern Pacific. The plan of Hill envisaged something more than traffic to the coast. He was dreaming of trade routes to Japan, China, and the Far East, of challenging established trade to the Orient from Antwerp and Liverpool through the Suez Canal. He chafed at the regulations forbidding his roads to make competitive export rates, or to build or acquire steamship lines. He saw the cooperation of government and business interests in the railroads in Germany, and its effectiveness in building up foreign trade. He prided himself upon rail policies that built up the country, and formulated rates with a special interest in the farmers and settlers. But his activities in reorganizing and controlling the Erie as well as the Baltimore and Ohio, roused fears that he was not content to range within his own domains. When peace was restored between Harriman and Hill, the leading stockholders of Northern Pacific and Great Northern, most of them men well past seventy, undertook to place the control of both companies in the Northern Securities. It is significant that while all the stockholders of the two companies were invited to deposit their shares, it was essentially for the benefit of the leading holders. Nevertheless the charter of the new company (1901), with capital set at $400,000,000, proved to be the most provocative legal step taken by important financial interests in recent history. Everywhere industrial leaders were securing the practical results of such ownership, but the boldly frank move of Hill's associates drew down upon them the lightning in a sky charged with storm clouds. "Public opinion," wrote Hill's biographer, "was hostile to the idea of combination, and more so—with some illogic—in the field of transportation than in the field of production." But actually there was not only greater vigilance exercised against railroad monopoly, as the chief target of Granger legislation, but abuses in the field were more long-standing and fundamental. There can be little doubt that the aim of the incorporators of Northern Securities was an investment company which would thwart such raids upon the stock as had been made by Harriman and the Union Pacific in-

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terests. "All of our counsel feel that our case will be easily won, and that in the end, we will have the advantage of having our charter rights confirmed by the Supreme Court," wrote Hill in March, 1902, less than three weeks after the Government took action. Ill The new effort to unite the Great Northern and Northern Pacific by the device of a holding company now met with a further protest. On January 7, 1902, the State of Minnesota had attacked the Northern Securities Company in the Supreme Court of the United States. Denied permission to file a bill of complaint, it brought suit in the Circuit Court of the United States. In the meantime the Interstate Commerce Commission had at the meeting of December 20, 1901, adopted a resolution calling for an investigation by it into "consolidations and combinations of carriers, including the community of interests plan." This had been followed by a suit in the Federal Circuit Court against the Northern Securities, Great Northern, and Northern Pacific. The prestige of the Morgan dynasty and the lifelong dream of James J. Hill were now in jeopardy. Johnson, who had acted for the elder Morgan in numerous matters of importance, was retained to take personal charge of the case. There was mutual respect between the two men, although the lawyer had always demanded and received a deference from his client that was foreign to the dominant character of the financier. Johnson had expressed his opinion, based in part on the Knight case, that the formation of a holding company was not in violation of the Sherman Act. Hill, who studied precedents and legal documents with care, acted as one of the legal staff. The two cases in the Circuit Courts, the first instituted by the State of Minnesota, and the second by the Attorney-General, had resulted in a divergence of decision on the question of whether the company constituted a combination having power to "suppress competition between two or more competing and parallel lines of railroad engaged in interstate commerce." In the state case, the court found that the control of the two companies by a single interest did not warrant the assumption that such power would be used improperly. In the federal case, the court decided the ownership of two railroads by a single agency was in violation of the Sherman Act. When the case finally came before the Supreme Court of the United States for a hearing in mid-December 1903, national interest and excitement were at high pitch. "The present generation," wrote one correspondent, "has not witnessed a deeper interest in any case before this tribunal." Among lawyers and public men, it was felt that no issue awaiting decision was fraught with graver consequences since the Dred Scott Appeal. Even the concern manifested at the argument of the Income Tax Cases [212]

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was exceeded. It was pointed out that while on that occasion the courtroom had been crowded with anxious onlookers, most of the audience then in attendance represented the well-to-do. "It was a burning political question, to be sure," wrote another correspondent, "but it lay within limits comparatively narrow. A larger principle was at stake in the Northern Securities Case." "The issues involved in this week's legal battle," wrote still another analyst, "go to the foundations of our business prosperity, and reach the home of every workingman, no less than that of every investor of capital." Such was the feeling of the hour. The case had been set for Monday, December 14. All the Justices were in their seats with the exception of Justice Brown, who, kept at home by an affliction of the eyes, was by agreement to pass judgment upon the briefs of counsel and the oral arguments in printed form. By noon that day, when the justices entered, the courtroom was crowded to capacity. Senators, representatives, judges, and diplomats filled the benches. Lawyers from every state in the Union were on hand. The "plain people" had also poured into the courtroom, and stood in a solid mass behind the bar. A fair number of ladies were also to be seen. Mrs. Roosevelt, with Mrs. Knox, Mrs. Holmes, Mrs. Lodge, and others well known in Washington society shared the tenseness that gripped the spectators. The courtroom drama was etched in sharp lines by the correspondents of metropolitan newspapers and magazines. At the north table in front sat Attorney-General Knox, clean-cut, smooth-faced, and keenly alive to the responsibility of his first assignment. At his side sat William A. Day, appointed especially to prepare the trust cases, latterly in exclusive practice before the Interstate Commerce Commission, and hence an expert in rail cases. Other assistants from the Department of Justice were on hand, but James M. Beck, brilliant Philadelphian, who had argued the case before the Circuit Court of St. Louis, was merely an onlooker. Now a member of a Wall Street law firm, he was seeing the other side of anti-trust litigation. Counsel for the Northern Securities were grouped at the other table. Associated with Johnson was George B. Young of St. Paul, for a brief period Justice of the Supreme Court of Minnesota, later to be known throughout the Northwest as student and lawyer of the highest rank. Next to him sat C. W. Bunn, railroad lawyer, M. D. Grover, counsel for the Great Northern, John W. Griggs, former Attorney-General of the United States, Francis Lynde Stetson, one of New York's greatest attorneys, George R. Peck, who held equal rank in Chicago, and William P. Clough—together with several others equally well known in the profession, all men whose bearing and intellectual cast of countenance were marked even by the Nation. [213]

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But it was John G. Johnson upon whom the reportorial and the public eye was focused. The story of his victories had preceded him, and an air of mystery was added to a natural curiosity about a name so little known to the public, and yet acclaimed by lawyers and the business community as the greatest in his profession. A keen observer for the Nation sought to answer the general inquiry: Mr. John Johnson of Philadelphia, justly esteemed the leader of the Bar, is a tall, finely built man, with a strong yet kindly face. He stands out even among the strikingly forceful figures of the lawyers ranged beside him. These present a firm front of experienced and able corporation counsel, but the Philadelphia lawyer might well be considered a host in himself. His generous stature, as contrasted with the trim, dapper figure of the Attorney General, must have suggested to the mind of more than one spectator that the gamy champion of the Government was going forth like David to battle. And this is the impression made by the lawyer upon another correspondent : Mr. Johnson proceeded to open the case in a plain, business-like manner. He had not spoken five minutes before everybody who heard him was convinced that here was no ordinary man. Void of affectation and to all appearance unconscious of self, Mr. Johnson talked to the Justices in a tone not exactly conversational, and yet only a little above it. It was the conveying of information through a perfectly easy, untroubled channel. His wonderful ability consists in the perfection of his power of statement. In this respect older members of the bar say that he proves himself the equal of the late Benjamin R. Curtis. Judge Curtis was cold, he used no gestures, but held the attention of the court by his remarkable clearness and conciseness. On the other hand, Mr. Johnson adds to these qualities a gentle warmth and vein of humor which render it a delight to listen to him. The opening remarks of Johnson placed the Government on the defensive. Alluding to the fact that the prosecution was under a criminal statute, he contrasted the constructive achievements of Hill with the narrow implications of a criminal proceeding. Having thus taken upon himself the task of vindicating the leading industrialists and financiers of the country, who stood as "prisoners in the dock," he proceeded to establish a precedent. Instead of setting forth the facts that underlay the long history of the Hill empire in the great Northwest, he boldly abandoned such orderly sequence. Instead, he laid down six propositions of law, and taking each in turn, stated the facts relating thereto, before going on to his next point.* * First: that there was no agreement, contract combination, or conspiracy to restrain competition between these two railway companies, or to restrain t r a d e ; but that, on the contrary, whatever contract or understanding there was in the

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CASE

This was daring but superb strategy. P r o b a b l y he felt that to lose himself in the maze of facts that marked the development of two great railroads would be to sacrifice the necessary emphasis upon the broad principles involved. There was actually little disagreement as to the facts, yet their presentation would have meant making his real argument before judges wearied by a long recital of events still fresh in every memory, with the audience even more impatient. In general, he contended that the formation of the Northern Securities Company was a defensive measure, for the purpose of guarding the stock of the two railway companies against the repetition of such a raid as had been made by the Harriman interest of the Union Pacific. Early in the argument J u d g e Peckham asked whether the Securities Company held the major portion of the stock of the two companies and Johnson admitted that the company held nearly all the stock. He contended that, holding the stock, it had the authority to control it. He took sharp exception to the position of the Circuit Court that the possession of the power which the Securities Company had was a violation of the law, and contended that such ruling was not in accordance with the decisions of the Supreme Court. It was the use of the power and not the possession of it that constituted the offense. He outlined at some length the organization of the two railroad companies, their efforts to increase trade and their purchase of the Burlington route. The Burlington was not a parallel or competing line, but a supplier, and certainly it could not be contended that this action was contrary to law. case, a s established by uncontradicted testimony, w a s to enlarge, to create, and in every way possible improve trade and commerce. S e c o n d : if two railway companies, somewhat in competition with themselves, find it necessary, in order to sustain their competition against a third company which otherwise could destroy them or greatly interfere with their u s e f u l n e s s to the public, to combine in any way for the purpose of protecting themselves against destruction, and in order, by means of that protection, to make a greater competition with a greater rival on a greater scale for the greater advantage of the public, that the Court must look to the matter a s one of fact to determine whether the real purpose w a s to destroy or lead to the destruction of the smaller competition in order to promote trade by the establishment of the greater competition. T h i r d : if the holding by the Northern Securities C o m p a n y of the majority of the shares of the two companies w a s a violation of the S h e r m a n Act, of course an agreement among any number of persons would be a violation of that act. F o u r t h : the first section of the S h e r m a n Act does not in any way condemn a s illegal the acquisition or ownership of the shares of the two competing companies. F i f t h : the second section of the S h e r m a n A c t does not in any way condemn the acquisition and holding of such ownership of shares. S i x t h : if the Sherman Act does condemn as illegal the ownership of a controlling interest in the shares of the competing railway companies, it i s unconstitutional.

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He then reviewed the raid of the Union Pacific on the Northern Pacific stock. Referring to the formation of the Securities Company, he said: What was to be done—remain quiet and allow these people who were waiting like the fox under the tree for something to drop, and let them have the prize, or to protect that alliance? They determined to form a corporation to which they could turn over the Northern Pacific shares. This corporation was formed by them with no concert with the 1,800 or 2,000 other shareholders. They sold their shares outright to this company, and did not employ any of those devices of "now you see, now you don't see" ownership. The results, he declared, were most beneficent. After citing many figures of low rates and extensive tonnage, the attorney said: "Instead of being a combination in restraint of trade, the whole purpose is to protect and develop trade." He admitted in the beginning that if there was a combination in restraint of trade, that must end the case. In this connection he said: If the ownership of the controlling interest was in restraint of trade, then that was the end of the appellants' case. If ownership itself was in restraint of trade, then it matters not what the ownership was for, whether for monopoly or other purpose. He admitted that the Sherman law embraced the restraint of trade by conspiracy along all the lines, but he contended that in the present case there had been no such combination. He added: You, therefore, are confronted, not with a proposition where persons conducting trade agree with one another for restraint of trade, but by a case where persons sell their property to another. And where has that ever been decided in a Federal Court, where is there a case in which it was ever held that bona fide acquisition of ownership of a property is a contract, combination, or conspiracy in restraint of trade? He urged that the owners of shares of stock had the property right to transfer their shares, and it would be an absurdity to speak of such a transfer between individuals as a crime. "Aren't we," he asked, "stretching the English language beyond precedent in putting a criminal construction on the transaction?" He contended that corporations should have the same right as individuals. To contend otherwise, he declared, would lead to untold mischief. Justice White interrupted to observe that, as he understood the point, it would be unlawful for a corporation to do what an individual might do. " I n which case," continued Justice White, "you leave the power [216]

THE NORTHERN SECURITIES CASE to compete only in answer to this, that renders much m o r e exist in case only a

the hands of a very wealthy individual. Is not the the facility with which c o r p o r a t i o n s can be f o r m e d feasible the existence of competition, than would very rich m a n could exercise that p o w e r ? "

T h e lawyer admitted that reverted to the decision of C o m p a n y because it had the this decision was something

this was a common-sense view, and then the Circuit Court against the Securities power to restrain trade. H e declared that new in jurisprudence.

" F e w o f us have a desire to commit m u r d e r , " he said, " b u t m a n y of us use a razor, which gives us the power to m u r d e r . " T a k i n g up the issue of monopoly, he said that Congress had failed to give an adequate definition of the word. O r i g i n a l l y it meant an exclusive grant, but did the acquisition of one r a i l r o a d or of two prevent others f r o m building other r o a d s ? T h e progress of the argument in the courtroom was closely followed by the audience. T h e questions of the justices roused special interest, as all sought some indication o f the mind of the Court. W h i l e J o h n s o n was contending that the merger was effectual in promoting rather than retarding c o m m e r c e by uniting against the competition of the Canadian Pacific, J u s t i c e Brewer a s k e d : " W o u l d it not f o l l o w that the acquisition of all the transcontinental railroads to compete with the Canadian P a c i f i c would be l e g a l ? " T o this J o h n s o n replied that it would be legal if such c o m b i n a t i o n were necessary to create a l a r g e r commerce. J o h n s o n particularly emphasized the national and international implications. H e pictured Hill as the creator of an e m p i r e that was linked with the flow of the nation's commodities to C h i n a and J a p a n . H e claimed that the real competition was not between the Great Northern and the Northern Pacific, but between these two roads on the one hand, and the Canadian P a c i f i c and P a c i f i c roads to the south on the o t h e r ; further that a l a r g e competition existed and had to be met f r o m E n g l a n d and Germany and other E u r o p e a n nations in securing the vast trade of the Orient. T h e s e and other points were vigorously set f o r t h and well illustrated. J o h n s o n received the closest attention f r o m the court. W h i l e reading the figures f r o m the reports of the r a i l r o a d companies in order to assure the court that there h a d been no restraint, but r e a l l y a great enlargement, o f commerce, J o h n s o n used the word " t h o u s a n d s . " J u s t i c e H a r l a n interrupted and pointed out that the figures in the report said so m a n y " m i l l i o n s . " " Y e s , y o u r H o n o r , " replied J o h n s o n , " y o u see I a m not given to e x a g g e r a t i o n . " T h e r e was m o r e in this r e m a r k than met the naked eye, f o r the J u s t i c e was the one man on the bench whom even J o h n s o n could not hope to win to his side. In that hour J o h n s o n lifted his case above precedent and citation. I n

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simple phrases he pictured the achievements of his client, who had taken a defunct railroad, placed it on a sound basis, carried it through successive depressions. But let the press tell the story: Johnson took a broad, comprehensive view of the whole subject. He sketched the project of raising a bankrupt corporation into life, and creating a great traffic, through the genius of a single mind grappling with a formidable railway problem. He pointed out the vast sweep of the principle at the base of the contention in this cause. Though apt at detail, and losing the thread of no points involved, the great Philadelphia advocate lifted the case, as it were, into a higher region of thought and debate. It was the consensus of all observers that Johnson towered over Attorney-General Knox in more than stature. Of the latter, the press reported: One naturally contrasted his deliverance with that of his distinguished opponent, Mr. Johnson. Mr. Johnson was cheery, good-humored and optimistic. Mr. Knox was severe, and inclined to admonish and deplore, and appeared to make a good deal of impression upon the court. His carefully prepared address was incisive, assertive, and emphatic. If it could hardly be called a great argument, it lacked nothing save that indescribable quality which only a consummate advocate imparts to his utterances in the heat of forensic contest. Nevertheless Johnson had lost some of the sureness that had characterized his position in the Knight Case; the authority of that ruling had been undermined by later decisions, notably in the Addyston Pipe Case. Much of his brief was given over to the benefits to result from the coordination of the two railroads. That the main purposes of Northern Securities were to help competitive interstate and international commerce, and that any restraint upon commerce would only be incidental and negligible. There was a further emphasis upon the intent of the incorporators and the lack of any combinative purpose. Many technical and legal objections were interposed. Much was made of the fact that the language of the Act did not intend to cover combinations to purchase railways or railway shares, consolidations of which existed at the time of the Act, and that monopoly was part and parcel of the railway business. Though economics rather than law was stressed, it was again urged that the Sherman Act did not prohibit a contract tending to restrain trade, but only one actually in restraint thereof. Johnson cited the Knight Case as his final card, and averred that any other construction of the Sherman Act would render it unconstitutional. Johnson closed his argument with a plea to the court to demand of [218]

THE NORTHERN SECURITIES CASE the Attorney-General that he cite some law as authority to strike down the Northern Securities C o m p a n y . Y o u may strike down this corporation, and undoubtedly you will strike it down if you find that its existence is in violation of the law, even though in so doing you destroy a commerce of magnitude and almost beyond our powers of imagination in the future. But we respectfully submit that you ask of the Attorney-General when he demands that you strike it down the presentation to you of some law that clearly and unmistakeably pronounces as a crime that which he asks you to condemn. T h e Attorney-General did not meet this challenge, but merely insisted that the Northern Pacific was intended to be an independent national highway, and that the Securities Company would destroy competition. Newspapers throughout the country featured the day's hearing and the arguments of counsel. In many, pictures of the opposing lawyers, of Hill and M o r g a n , heightened the impression of a grave contest upon which the fate of the nation hung. T h e tension continued through the winter, and in business circles was reflected in the action of security prices, which had moved fitfully downward. There was wide speculation as to when the opinion would be handed down by the highest court, and apparently a special effort w a s being m a d e to prevent any leak as to both the decision itself and when it would be rendered. Nevertheless, when the nine justices filed into the courtroom at noon on March 15, 1904, they were awaited by an expectant crowd which filled every seat. Attorney-General K n o x , Secretary T a f t , and an unusual number of senators and house members were on hand when Justice H a r l a n began the delivery of the opinion. T o the knowing it was clear that the majority h a d ruled against the holding company. However, the Justice spoke only for four members of the court, and the narrowness of the Government's victory was accentuated by the fact that Justice Brewer reached his conclusion by a different course of argument, and read a separate opinion. F o u r of the justices dissented, and Chief J u s t i c e Fuller, who had spoken for the court in the Knight Case, emphasized the precise parallel of the two cases. Justice Holmes, who added his voice to the minority, minced no words in criticizing the majority o p i n i o n : T h e great cases, like h a r d cases, make b a d law. F o r great cases are called great, not by reason of their real importance in s h a p i n g the law of the future, but because of some accident of immediate overwhelming interest which a p p e a l s to the feelings and distorts the judgment. These interests exercise a kind of hydraulic pressure which makes what w a s previously clear seem doubtful, and before which even well-settled principles of law will bend.

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Nor was his interpretation of the law to be modified by the clamor over the creation of the railroad holding company, following close upon the heels of the re-Morganization of the United States Steel Corporation. He added: If that were its intent, I should regard calling such a law a regulation of commerce a mere pretense. It would be an attempt to reconstruct society. I am not concerned with the wisdom of such an attempt, but I believe that Congress was not entrusted by the Constitution with the power to make it, and I am deeply persuaded that it has not tried. The announcement of the decision caused a sharp break in the stock market, but it recovered just as quickly, and closed higher for the day. Wall Street had received the news which had been expected for weeks, with a sigh of relief. Nevertheless it was felt that the eventual effect would be to create uncertainty in the minds of holders of railroad and other securities. Press opinion was generally favorable to the decision. Congratulations poured in upon the President. The Cabinet was elated, and Attorney-General Knox received the felicitations of his chief. Chauncey Depew, who spoke for the rail interests, expressed his approval: It is a good thing both for the people and the corporations, because it quiets popular apprehension which might have resulted in dangerous and unnecessary legislation. James C. Carter, who had been chief counsel in many cases under the Sherman Act, was less optimistic: Congress must now be regarded as having prohibited all contracts or combinations restraining competition, however reasonable such restraint may appear. I do not suppose it would be possible for the railroad business to be carried on for a single day without some agreement or understanding securing a certain uniformity of rates. . . . Consequently the officers and managers of railroad companies are everywhere in daily violation of the law and subject to indictment and punishment. And yet the law is not enforced against them. This creates a most mischievous state of things . . . There was a further undercurrent of fear as expressed in a leading editorial in the New York Times, with premonitions of confusion, tumult, and panic if an attempt were made to enforce the law as laid down by the court. Significantly, an assuring statement was immediately forthcoming from Attorney-General Knox, stating that the Government would not run amok, and that the decision would merely bring soberer business methods. Meanwhile Hill was in conference with his attorney, to whom he looked for guidance in the plan of dissolution that was to be drawn up. [220]

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Said he to reporters: "The properties of the Northern Securities Company are still there. They are as good as ever." Johnson said nothing. But the nation's Executive, who had taken the trust issue unto himself, wrote gleefully: This decision [the preceding decision, in the Knight Case] I caused to be annulled by the Court that had rendered it. . . . The Northern Securities suit is one of the greatest achievements of my administration. I look back upon it with pride, for through it we emphasized the fact that the most powerful men in this country were held to accountability before the law. It was necessary to reverse the Knight Case in the interests of the people against monopoly and privilege. The success of the Northern Securities case definitely established the power of the government to deal with all great corporations. We had gained the power.* He did more. Within a year further suits were undertaken against the beef trust, the tobacco trust, the coal trust, the Standard Oil Company, and others. The world of finance and industry was rudely shaken: the stock market declined for many months. A noted commentator of financial events thought he discerned compensations. Alexander D. Noyes wrote: The overthrow of the Northern Securities combination was the most positive achievement of the Roosevelt administration in the field of corporation finance. For the promoters erf the Northern Securities were travelling on the path of capital inflation which logically had no end except in eventual exhaustion of credit and general bankruptcy. Expert opinion was divided as to the merits of the trust crusade. Against the view of Noyes it was urged that the Northern Securities Company did not aim to sell stock or raise money, but to assure joint control in the lifetimes of these men, and continuance of their holdings after death. The essential features of the "holding company" of the late 1920's were absent. The decision acted neither as a preventative nor a deterrent to the frenzied finance of the New Era, and the boom that engulfed the men of Washington as well as the citizens of Wall Street and Main Street. It did not prevent the vast optimism of the 1920's from fathering a Pennroad Corporation that slew its thousands, and a Commonwealth and Southern that laid low its tens of thousands. Nor was it effectual against the inverted pyramids of Insull, of Eaton, of Hopson. Mere formal requirements could not hold back waves of public optimism and hysteria. In fact, the chief danger in the later reforms of * Theodore Roosevelt, an autobiography (Charles Scribner's Sons, 1913-1925), p. 426. See particularly Chapter XII, "The Big Stick and the Square Deal."

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securities regulation and the setting up of the Securities Commission was a public confidence that inherent hazards of finance, which reflect the insecurity of life and the uncertainties of business, were banished. On precedent the easy optimism of statutory prohibition of panics and administrative safeguards against inflation and deflation, echoed the preamble of the Federal Reserve Act, and its futile promises of relief from depression. The decision did show to the thoughtful certain weaknesses in our democratic processes. It revealed the power of the demagogue and the lurking dangers of the half truth, and the appeal to mass emotion. It was also a safety valve for social unrest. Johnson continued the even tenor of his legal duties. He fought many battles and most of the great trust cases under the Sherman Act, and tried to interpret the latest ruling of the court. For it was his task to know the law, and to advise his clients thereon. Mr. Roosevelt took another course. Within less than a decade, he was on the other side of the trust issue, for reasons political and personal. The strangest turn of events came later. When in 1911 President Taft, also for reasons not exactly legal, brought dissolution proceedings against the United States Steel Corporation, he was striking at Roosevelt and his part in its acquisition of Tennessee Coal and Iron. So it came about that Johnson, chief counsel for the corporation, had as his most active ally and effective witness the frustrated ex-President. Roosevelt wrote in those later days: Nothing . . . is gained by breaking up a huge industrial organization which has not offended otherwise than by its size. Such organizations, guiltless of wrongdoing, should be handled by regulation, not prosecution; to do as Taft was doing now about the Steel Trust was an attempt to treat the problem by "destructive litigation" instead of by "constructive legislation," not progressivism but an unintelligent . . . toryism. The testimony of the star witness in the steel litigation belongs to a later chapter of anti-trust history. Be it said for Johnson that these singular gyrations neither surprised nor irritated him. He took them in his stride: they were part of the technique of politics. Politics and public opinion were factors to be taken into account by a lawyer even as gales and hurricanes were included in the calculations of an engineer. Had not Justice Holmes himself written in a private letter to Sir Frederick Pollock: "I am so sceptical as to our knowledge of the goodness and badness of law that I have no practical criterion except what the crowd wants. Personally, I bet that the crowd, if it knew more, wouldn't want what it does—but that is immaterial." But in the Securities Case he refused to be stampeded, and later con[222]

THE NORTHERN SECURITIES CASE fessed his irritation when " l i b e r a l s " attacked h i m f o r his failure to enf o r c e a law that he thought of questionable validity. Undoubtedly President Roosevelt had appointed him to the bench a short time before on the record of his liberal labor decisions in Massachusetts, believing that he would j o i n with the Government on the Northern Securities Case. T h e H o l m e s dissent irked the President, who is reported to have sent f o r him, and expressed to him both his disappointment and his annoyance. T h e five-to-four decision of the S u p r e m e Court reflected the confused state of national opinion. It was of little moment in J o h n s o n ' s career. It was only one of many cases in his office. Clients who sought his advices were never given an inkling of the problems with which he was g r a p p l i n g . T h e ruling had been the subject of wide comment in the local press. A certain fringe of friendly enemies and carping friends stood ready to exploit such a rebuff. A few months later, when J o h n s o n had given a legal opinion in an issue of local politics, an opponent remarked dryly, " M r . J o h n s o n has been known to b e m i s t a k e n ! "

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T

J . H E triumph of the political mind over the legal in the Northern Securities Case placed in bold contrast the work of the private citizen, and the activities of the public official. It outlined sharply the limitations of the lawyer's function and the broader scope of the executive power. The inconsistencies of the Roosevelt position could be over-emphasized. In the light of his later blasts against indiscriminate "trust-busting," the special dangers of semienlightened public opinion and astute propaganda become evident. T h e helplessness of mere fact, common-law precedents, and economic fundamentals against catch phrases and artful slogans was never better demonstrated. Governmental action predicated upon Gallup polls and mere count of noses could hardly guide a great nation. In peace, such policies played too directly into the hands of the demagogue; in war they evolved tactics geared to the intelligence of the least intelligent—a strategy that must ever bear the sad label of " t o o little and too l a t e . " A general recognition that many vast issues should remain outside the field of legitimate politics and should be entrusted to permanent officials was a necessary step as the problems of peace and war became increasingly complex. Roosevelt's fulminations against the " t r u s t " served a practical purpose; they offered a safety valve for a vast indignation that had gathered momentum with the new century. There can be little doubt that the President so viewed the stout blows that he struck at the giants of business. Several years later, in a heated altercation at a New Y o r k club, he defended his actions against accusations of demagoguery hurled at him by Morgan. " I f it had not been for m e , " he countered, " a revolution could not have been avoided, and you fellows would have lost everything." The work of Johnson was bound by narrower limits. He could urge no departure from the established rules and precedents. He could merely point out the dangers of bending before gales of public f u r y ; he could but try to deflect the blow from his own clients.

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BILLS OF DIVORCEMENT In his latter function, he was indeed a " c o r p o r a t i o n l a w y e r . " Y e t his office was open to all, and f o r a n o m i n a l fee, or even for nothing at all, his energies could be enlisted in a cause he deemed j u s t . T h e statesman spoke f o r all the people, but was a p p r o a c h a b l e only by the high-placed few. T h e average citizen and business man looked to the nation's executive f o r general comfort, but f o r practical help in a crisis enlisted the services of the lawyer. These facts were mirrored in society's reward to each. T h e political leader was known to the whole world, admired by many, hated by not a few. B u t his popularity was comparatively brief. M a n y of his followers who hailed h i m in 1 9 0 8 deserted h i m in 1 9 1 2 , and h a d forgotten h i m in 1 9 1 8 . Hostile business and professional men rated h i m a mountebank. As President, he received a substantial, but by no means large, salary. Despite the sincerity of his purposes and the soundness of his larger objectives, he would readily admit that his actions were dictated by a studied and necessary opportunism. J o h n s o n was known to comparatively few outside his own profession. He had few enemies, and confidence in him rested upon facts of long standing. His work required no compromises with his own inclinations, and fewer evasions or m e r e tactical shifts. Every public and private consideration dictated a course as forthright as the conduct of a physician or scientist. In a narrow sense society placed a higher price on his services. In m a n y c a s e s — m a t t e r s of contract or estate l a w — h i s normal fees were well over the annual salary of the President. With the passage of time, he could l o o k forward to a continuance of his usefulness and no lessening of the esteem of his clients and the profession. Such facts and figures should not be pushed too far. B y the same token, J o h n s o n ' s value was topped by the earnings of many of his clients and by hundreds in other fields. T h e y merely indicated that the monetary rewards of society were handed down with little discrimination. T h e lawyer's services as a p u r e l y private citizen were exercised within even n a r r o w e r limits in matters of divorce. F e w situations would seem o f less c o n c e r n to the public than the separation of husband and wife. B u t when J o h n s o n was retained in such cases he acted most strikingly as an officer of the court. M a r r i a g e and the f a m i l y relation were viewed by the law not as a strictly private affair but as the basis of social life. N o matter how personal the quarrel and how individual the causes, society h a d a deep stake in the proceeding. Divorce was always h a n d l e d b y J o h n s o n with the high seriousness a p p r o p r i a t e to the sacredness of the m a r i t a l relation. T h e cases covered every phase of m a t r i m o n i a l difficulty. Not a few represented a significant triangle, and in one case at least a q u a d r i l a t e r a l ; most had their

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origin in causes less colorful—clashes of temperament, financial difficulties, and pure boredom. The number which found their way to the higher courts was small. The average divorce, in spite of the bar against collusion, represented an agreement to disagree, and the court hearings merely achieved the desired result. The normal proceedings moved silently from separation to the final decree, of interest only to the parties and their families. Occasionally they made headlines, because of the prominence or notoriety of the litigants, or the bitterness of the quarrel, or the special succulence of the details spread before the public. In one instance a husband brought suit after thirty-five years of married life. The parties were well-to-do; two children had been born of the marriage, and one was still living when the divorce action was started. Husband and wife had long settled into a routine of coldness and indifference. Then came a separation, which the former averred constituted a willful and malicious desertion. Johnson secured a reversal of the master's recommendation of a divorce, which had been followed by the lower court. He rested his argument upon the broad distinction between a mere separation and a willful and malicious desertion. In another bitter fight a few years later, the lawyer established the important principle that the undenied testimony of the wife was a sufficient basis for a divorce, even though it was not corroborated. Here also the finding of the master and the decree of the lower court had been adverse to his client, and was reversed in the highest court on appeal. About this time Johnson was also engaged in another suit, in which the right of the Iibellant to have a jury pass upon the merits of the dispute was clearly defined. In this instance, the favorable ruling of the master and the lower court, which he had secured, was overturned. These formal contributions of Johnson to the common law were of less interest to the public than the tribulations of H , who sought his services in his efforts to obtain his freedom. The harried husband was a man of prominence, active in German-American circles. He had been married for seventeen years and had a daughter nine years old. The tale of indignities began with the wedding night. It moved to the first breakfast the next morning, when the Iibellant found further disillusion: for his wife had informed him that she was an excellent cook. The record was further featured by some fried calves' livers a month later that had the "consistency of sole leather." At his wife's insistence that he was too fat, and that she was ashamed to go out with him, the husband underwent heroic treatments for reducing and lost forty-five pounds. These sordid family wrangles were further enlivened by a series of romances in which the wife indulged. On a trip through Syria, it was alleged that she fell violently in love with a dragoman. He was suc-

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BILLS OF DIVORCEMENT ceeded by a leading German actor. Then followed a prolonged intimacy with a handsome tutor, whom the husband had engaged to deliver a course of lectures to the German Society. The couple's private difficulties were interwoven with H 's activities in the German Club, the German Society, the Young Männerchor, and the German-American Alliance. Through these festivities, his wife's lover hovered like a ghost, until the situation was a subject of general scandal. The scene shifted from Schützen Park to Washington Park, thence to the German Theatre, and finally to a German man-of-war lying in the river. Everybody knew that the married couple were ill-mated, forever quarreling. Admittedly the wife was frivolous and flighty, and her successive "affairs" had outraged and humiliated her husband. Johnson urged that the abuses to which his client had been subjected constituted cruel and barbarous treatment, and that it was not necessary to prove actual physical violence. He argued that adultery could be proved also, but that this charge had been withdrawn out of regard for the future of his child. The lower court evidenced sympathy for the husband, but ruled that he had not made out the barbarous treatment and cruelty necessary to sustain a decree of divorce. It admitted a picture of domestic infelicity, the indiscretions of the wife and five acts of "trivial violence": That it was bad, shamelessly bad, must be conceded. That it was such as to call for the abhorrence of every rightminded man appears plainly from the evidence. But it is not all bad conduct of a wife which entitles a husband to a divorce. It quoted from an earlier case the somewhat ironic words: "Never ought divorces to be easily obtained, for marriage is the most sacred of human relationships . . ." This too was the view of the higher court, in spite of Johnson's strenuous appeal. Such a case was fought by Johnson as vigorously as the most momentous anti-trust indictment. His inability to win merely attested the toughness of the bonds of marriage in his state, and the special difficulties of the husband in breaking them. An even more notorious case was contested a few years later, when Johnson was well past his seventieth year. The difficulties of the Cunninghams furnished the background for a leading case of divorce law. This ruled that the refusal of sexual intercourse did not constitute cruel and barbarous treatment, or a ground for divorce. The facts were singular. " W e agree with the able counsel for appellant," said the opinion of the higher court, referring to Johnson, "that this is a most remarkable and unusual case." Husband and wife had lived together for over twelve years. During that time they had occupied

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the same room and bed. Prior to marriage, they had entered a "purity pact," and this agreement had been kept during the entire period, though not without many efforts of the husband to renege upon it. After twelve years he had apparently decided that the entire arrangement had been a mistake; one might marry or burn, but there was no point in doing both. He moved for a full release from the marriage relation. In spite of the efforts of his lawyer, the judges remained adamant. Inevitably the Johnson office became the last recourse of countless husbands who found the path to freedom barred by the stern concepts of the state courts. For wives the remedy lay readily at hand. Most often the desire of the woman to put an end to her marriage was unopposed; where the husband was ungallant enough to fight, the chivalry of the court—sometimes misguided—made opposition futile. The lawyer had no penchant for divorce actions. Only the exceptional case offered legal problems worthy of his skill; the average divorce was a humdrum proceeding that, as years sped on, he left to his subordinates. But there was no effort to avoid such matters, and a distinct predilection for the human side of legal practice. He realized the importance of these strictly private dramas. They might amuse outsiders, but to the individuals involved they represented stark tragedy. To other members of the bar, confronted by seemingly hopeless situations that called for relief, a consultation with Johnson, often as not with the client in attendance, gave comfort to the attorney, even if it offered little to the client. No other class of cases showed more clearly Johnson's close contacts with the life of the city. In none were his special powers more in evidence, particularly his ability to secure results without fanfare. He never yielded to the lure of headlines in a notorious case. None of these domestic dramas was played to a crowded house, and few regaled a curious public over-long. Most ended abruptly, and behind closed doors. In the early nineties the public, whose appetite had been whetted by succulent bits of gossip about the private lives of the socially prominent B s, suffered such a disappointment. The newspapers played up the story without benefit of special gossip columns, supplementing the choicer morsels that circulated through the drawing rooms of the city. Henry W. B , the aggrieved husband, was a wealthy sugar refiner, a prominent financier, and the head of the B Committee to reorganize the Reading Railroad; in each capacity he had met many of the city's lawyers. His position as a member of the Committee of One Hundred, which guarded civic virtue and moral righteousness, threw into sharp relief his charges against his wife.

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The beauteous Mary B , reigning favorite of society, was accused of improper relations with and "with diverse other persons unknown to the libellant." The lady had been a belle of local society at the time of her marriage. Now she retired to the home of her father at Cheney Station. With her were two daughters, while the single son remained with the father. Her husband was represented by all the lawyers he had picked up in his long business and public career; the elegant orator, Richard P. White, Lewis C. Cassidy, former District Attorney and later AttorneyGeneral, and James H. Heverin and James H. Shakespeare, two of the hardest-working members of the bar. The latter were fated for domestic troubles of their own, even more lurid and tragic. Society was agog with excitement. WTien the libel was filed in the Common Pleas Court, and the subpoena duly issued, it became known that City Solicitor Warwick, later Mayor, was a close friend of the wife's family and its confidential legal adviser. But the impeccable and nattily attired Warwick would prove hardly a match for the heavy guns enlisted by the powerful sugar refiner. There was much speculation as to what counter-batteries would be drawn up on the distaff side. Shortly thereafter it was announced that City Solicitor Warwick had engaged the services of John G. Johnson. There was a general feeling that the lady's interests were in excellent hands. He was top man in the profession then, and in and out of all the courts with astounding frequency. He had just attracted special attention by his work for the primary bondholders in the Reading foreclosure, a deep-dish pie in which every lawyer of consequence had a finger. His first move had thrown a bombshell into the proceeding. His clients, he announced in his impressive way, had a first mortgage on the most valuable property of the Reading, and would accept nothing less than par for their bonds. Of course he won his point, and, before the reorganization had gone much further, he had assumed full command. But his entry into a family feud was of another order; there was no room for explosive advocacy. Formal conferences between the lawyers for both parties followed quickly. Milady must not be shocked by a subpoena, nor must the visit of a deputy disturb the air of her father's country place. The amenities were strictly observed, the procedure was politely arranged. In a few days Johnson accompanied his client to the Sheriff's office in the City Hall for the acceptance of service. Within a month the lawyer filed the answer of his client to the grave charges made by her husband. His normal strategy—that the best defense was a vigorous counter-attack—was seen at its best. Not only was there a sweeping denial of every charge of unfaithfulness, but there [229]

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were equally sweeping accusations of misconduct against the accuser. The answer named no names, but gave dates and places. Henry B , it averred, had sinned not only wisely but quite well, and in the grand manner. He had left a lurid trail behind him that took in Paris and the leading cafés and sin spots of Montmartre. In this country he had ranged as far south as New Orleans, north as the Isles of Shoals, and had indulged in escapades in Atlantic City and Cape May. Nor had he neglected the disreputable establishments of his own city. His specific intimacies brought no discredit to his high social position and included prominent Philadelphia ladies, designated only as Mrs. W., Mrs. R., and Mrs. F., and a Miss Stein of England and Mabel Gordon of New York, whose status did not rate the accolade of anonymity. Then came a number of preliminary skirmishes. B 's counsel moved to strike out the answer as vague. These were argued with no actual effects upon the outcome of the case, but did serve upon each occasion for a review of the entire episode by the press. Johnson countered the charge of vagueness by an announced readiness to name names. Thereupon the four eminent solicitors ranged against him decided that the particulars they had so loudly demanded would not be welcomed. It was finally agTeed that initials would continue to be used, but the actual names would be confided to the privileged ears of counsel. The case was set down for trial, and on November 15 of that year the newspapers announced that both sides were ready to proceed. The modest headlines of that day merely said: "Celebrated Case Called for Trial." Early the next morning the courtroom was thronged with a gay crowd. Idle curiosity was the chief spur, but the cryptic initials had also roused a measure of apprehension. All tried to catch a glimpse of the principals, but as the minutes passed not even the lawyers put in an appearance. The case ended—as did so many of Johnson's matters—in an arrangement behind closed doors; details were never aired. Not even Bayard of the Johnson office, one of whose functions was to inform judges that his chief was occupied with other cases, was in court. A young lawyer from the office of White requested a continuance pending final settlement of the case. Near the end of the century, Johnson was confronted with another chapter of marital discord. The facts and circumstances of the classic case of Ross against Gregg* are discreetly hidden in the files of the Common Pleas and the little-read volumes of the Supreme Court. On May 10, 1898, Elizabeth Ross instituted suit against Anna Ross Gregg to recover the modest sum of $100,000 for the alienation of the affections * The names have been changed.

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of her husband. The plaintiff set forth in sprawling phrases that she was a good, true, faithful, and honest woman, of good name, fame, credit, and esteem among her neighbors. . . . She had been married— a mere twenty-six years before—to Robert Ross, the handsome, but spoiled, son of a noble father. The union had been blessed with two daughters and a son. For over twenty years the couple had resided in Williamsport. Their social status was excellent; their financial position was definitely weak. The mother of Mrs. Ross was a sister of a justice of the United States Supreme Court; her father had been clerk of the Circuit Court in Pittsburgh. The husband's business activities had been sporadic and uncertain. Until the beginning of his relationship with Mrs. Gregg, the wife had defrayed a large part of the household expenses. About 1890, he began to spend much of his time in the company of the defendant, a divorcée and distant cousin whose mother's name was Ross. Neurotic, neurasthenic, and clinging, she was the mother of a daughter of nineteen and the author of several volumes of poetry. In that year the distant relationship blossomed into a close friendship. The errant, if not erring, husband neglected his family, and spent much of his time in this country and abroad with the lady who signed herself, "Affectionately, Your Cousin, Anna." The couple left a warm trail through the White Mountains, Spring Lake, Sea Girt, Alexandria Bay, Lake Mohonk, and the larger cities of New York, Philadelphia, Washington, and Montreal. Between visits they exchanged an ardent correspondence, in which the lady showed an unmistakable longing for the companionship of her personable cousin. There were practical advantages in this romantic episode for the proud, money-starved man. Mrs. Gregg had a substantial estate and an ample income. Her lawyers admitted a $40,000 a year; it was sufficient for her to plead successfully that she never had time or strength to look into bills. Ross had excellent tastes, and keen capacity for enjoyment; he had been schooled in a hundred best ways of spending money, but knew none of making it. He never had been able to afford an afternoon suit. The estate of John Ross, the father of Mrs. Gregg, contained many securities, and among them enough of the Williamsport Gas Company for her favorite to be appointed President at a salary of $2,500 a year. The attraction of opposites extended to more than money. The good lady's health was not of the best; she was ailing and romantic, and the companionship of her cousin after an unhappy marriage was something of a tonic. The actual situation between the parties was not cleared up by the great mass of testimony. The complaint of Mrs. Ross was that, beginning about 1890, her husband had been enticed from her; that for several years he had neglected her completely for the company of his cousin, [231]

JOHN G. JOHNSON until in 1899 he g a v e notice that he would no longer s u p p o r t his f a m i l y , and they would have to shift for themselves. There were the further allegations that are necessary in a suit for the alienation of affections: T h a t the defendant . . . h a d contrived and wickedly intended to deprive the plaintiff of the society and affection of her said husband, and also to withdraw f r o m her the s u p p o r t to which she was entitled f r o m her s a i d husband, to hurt her g o o d name . . . by reason of which she is deprived of the comfort and society of her husband . . . and is also drawn into such great shame, scandal and infamy, and remains so much disturbed and disquieted in mind, that she h a s suffered great and irreparable d a m a g e . With adequate press notices, the c a s e c a m e to trial. Ellis Ames B a l l a r d buttressed a strong legal front f o r Mrs. R o s s . R i c h a r d C. D a l e a n d Johnson had the harder j o b of d e f e n d i n g the rich Mrs. G r e g g . T h e evidence of maids, servants, hotel proprietors, children, hired detectives, and the retainers of half a dozen resorts a n d cities f a i l e d to clear u p the m a j o r question. Only this was certain: the w a y w a r d p a i r were childhood friends, and until a sad rift finally c a m e between them, h a d kindred tastes. The nine letters that were introduced—written b y M r s . G r e g g to R o s s — l e f t a dual impression. B a l l a r d a r g u e d that they showed beyond a doubt that the recreant husband was the p a r a m o u r of the defendant. "Nothing could be clearer," he stated. On the other hand, Dale a r g u e d that they were merely the letters of a sickly woman, written in a cousinly way to one whom she had known in her childhood. He admitted a certain romantic strain, but urged that s o m e concessions b e made to the warmth of a poetess. One sweet missive p l e a d e d : How much I would like to have you here just now to c o m f o r t me, but the conventionalities which you justly recognized when here, I foresee must deprive me largely of even my cousin. Yet they cannot altogether — i n fact I find myself looking to see you again. A n d now g o o d night. A thousand times good-night to coax away the solitude. The record piled u p ; the great m a s s of testimony, much of it contradictory, was followed by the final a p p e a l s of the p e r s p i r i n g lawyers. At the end it was doubtful whether R o s s had been driven f r o m his h o m e by one woman, or lured by another. The j u d g e stated the law exactly, but deposited the issue of fact in the b r o a d lap of the j u r y . In spite of the p r o l o n g e d intimacy, the matter of sexual misconduct was not a point. The gist of the offense was enticement—the inveigling of the husband f r o m his rightful partner by u n f a i r practices. Nevertheless sex was much in the b a c k g r o u n d , f o r it constituted the chief element of the unfair competition banned by the law. [232]

BILLS OF DIVORCEMENT W i t h this c l e a r l y in mind, J o h n s o n emphasized the total debility of his palpitating client, guilty at most of mere cousinly affection. T h e medical evidence, the testimony of her financial advisers, and the languid protestations of the lady herself, seemed to show her incapable of passion stronger than a sigh. On the other side, it was shown that the frail lady hugely e n j o y e d dancing until the e a r l y hours and penned letters that exuded endearment, if they lacked fire. T h e j u r y brought in a verdict f o r Mrs. R o s s , and fixed the damages f o r the loss of her husband at $ 2 5 , 0 0 0 . T h i s high appraisal was not so satisfactory to Mrs. Gregg. Besides, the friendship had wilted under attack, and she faced a double loss. T h e r e was an appeal to the highest court. T h e j u s t i c e s read the huge volumes of testimony and admitted their perplexity. T h e y quoted generous extracts from the letters to indicate one conclusion, and much other testimony to justify an entirely opposite c o n c l u s i o n . In the end they refused to upset the j u r y verdict. T h r o u g h o u t the trial there h a d been intimations of a quarrel between M r s . Gregg and h e r cousin. It was suggested that Ross had turned the damaging letters over to his wife after their disagreement, and that the lawsuit was collusive. T h e payment of the judgment was abhorrent to Mrs. G r e g g ; she urged her lawyers to leave nothing undone to reopen the case. S h e insisted that the reputation of Mrs. Ross was none too good, and hence she was not entitled to damages. At this point Counselor J o h n s o n begged to be excused. He had fought a good fight and, as was his wont, had battled the entire course. But he did not specialize in futile efforts to open closed doors. Other a b l e attorneys pressed the plea of fraud and c o l l u s i o n — a s well as the attack upon the c h a r a c t e r of M r s . Ross. T h e y argued and reargued the case in the S u p r e m e Court, but to no avail.

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Dissolutions in Oil and Tobacco GROUP picture by the fine hand of Esquire Johnson gazes out of the first hundred odd pages of the 221st volume of the Supreme Court Reports. It dates back only to the year 1907, but reveals a character-study favored by the later Italian School. The harried magnates of oil had an excellent legal staff. In their perennial clashes with the law, the charges to be met had been something more than minor. Notable barristers had taken care of further assignments in the courts of law and equity and the chambers of oyer and terminer. The proceedings of these sessions were digested under divergent headings from aiding and abetting to rebates and torts. Higher legal talent had been invoked when the officials of many states had taken action to express public displeasure at further enlargements of the Rockefeller dominions. These were actions confined to single jurisdictions to be defended by the best local lawyers. The later years of the Roosevelt régime saw a general attack upon the entire structure of the many companies that made up the Standard Oil network. The year 1907 had seen the high tide of prosecutions of the Standard companies. Early in that year, the parent company of New Jersey had been indicted upon many counts. Two weeks later, the Interstate Commerce Commission published a report on the oil combine, which was described by the press as a "most scathing indictment." In May, the Commissioner of Corporations charged that the company and its subsidiaries, largely through their control over transportation, had for thirty-five years maintained a practical monopoly of the petroleum industry. Within a month, a jury at Austin, Texas, rendered a huge verdict against a Standard affiliate, and advocated its ousting from the state. Near the end of the year Frank B. Kellogg, the special Government Prosecutor, who acted with George W. Wickersham, the Attorney-General, spurred by the President, brought suit under the Sherman AntiTrust Act. The federal action was not unrelated to the violent panic and [234]

OIL AND TOBACCO depression of that year, and the charges and counter-charges between the leaders in business and government. The former sought to place the b l a m e upon Roosevelt as " o u r chief panic m a k e r " ; the latter struck back at the " r u t h l e s s and determined men, hiding behind the breastworks of corporate o r g a n i z a t i o n , " as the real instigators of hard times. A m i d pointed references to " m a l e f a c t o r s of great wealth," action was taken a g a i n s t S t a n d a r d Oil in the federal courts. T h e hurried consultation of executives and corporation counsel at 2 6 B r o a d w a y resulted in the departure of emissaries to Philadelphia to retain J o h n s o n to head the defense forces. At the same time, legal action h a d also been instituted against the American T o b a c c o Company and the Imperial T o b a c c o C o m p a n y , of Great Britain, and the leading officials of these c o m p a n i e s had also invoked his services. The long S t a n d a r d Oil fight moved f r o m the District Court of Missouri into the chambers of a special examiner. The procession of witnesses in and out of his offices continued. There was scarcely a lift of the p a l l of depression; the high cost of living became a m a j o r issue. A great fleet of American warships under A d m i r a l E v a n s started on its two-year journey round the world. E a r l y in 1908, M r s . J o h n s o n died at the age of sixty-seven, after a lingering illness of f o u r years. Her three children had long before moved out into the w o r l d ; after her interment in the family burial plot at Newport, the lawyer was alone in the b i g house on South B r o a d Street. Only a few servants, his collection of paintings and his wife's portrait at the foot of his bed reminded him of the past. These and the frequent letters of Colonel Morrell, whose health was giving him real concern, and to whom he was still " D a d . " In March, the report of the special examiner in the Standard Oil trial was filed. T h e record went back into the Federal Court for long hours of argument. Finally the Circuit Court handed down a lengthy opinion. The decision was adverse. P r e p a r a t i o n s were made for an a p p e a l to the S u p r e m e Court. Meanwhile a new President had moved into the White House, and new tempests were centering around the tariff and the trusts. T h e automobile was dotting the American scene, and a beautiful friendship between two incumbents of the highest office was drawing rapidly to an end. T h e scholarly Wilson, who h a d become Governor of his state, was being mentioned as a presidential possibility. The e a r l y days of 1 9 1 1 f o u n d Johnson before the S u p r e m e Court of the United States. On successive sessions he was chief of counsel in two critical c a s e s upon which the eyes of the country were focused. T h e issues h a d been argued, reargued, and in one case argued yet again. F r o m J a n u a r y 9 to J a n u a r y 12 he fought proceedings under the Sherman Anti-Trust Act aimed to unscramble the combination of leading tobacco c o m p a n i e s of the United States and Great Britain. F o r six [235]

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days thereafter, he defended the Standard Oil Company of New Jersey in the suit instituted to dissolve that company into its component parts. The responsibility conferred upon him during that month had its sterner realities. His services had been requisitioned by two giant combinations. One already stood condemned by the decision of the Circuit Court of Appeals, and even more definitely by the accusing finger of history. The other had hurdled the preliminary legal barriers, but still faced the final test. Both already had been adjudged guilty in the press and at the bar of public opinion. The two cases presented certain points of similarity, and yet revealed important differences. Standard Oil dominated not over sixty percent of the oil industry; the tobacco company laid a heavy hand on ninetyeight percent of the production and distribution of cigars, cigarettes, and smoking tobacco. Neither combination laid claim to operations according to the Golden Rule, nor to policies modeled after the Beatitudes. Each aimed to expand until it governed markets and supply sources; each expressed the ambition of men acquisitive and heady with power. The oil corporation was in a larger sense a domestic company, that aimed to strengthen its control over the American field in order to battle more effectively a fierce competition in the international markets. The tobacco trust sought to bring into its grasp British and other foreign companies in order to secure its hegemony at home. There were other important differences. Four decades of Standard Oil practices had embittered consumers and independent oil dealers. Standard had never been weaned from political handouts, and thrived on a diet of rebates and competitors. It had defied courts and commissions until the public despaired of combating its inexhaustible persistence and exchequer. The legends of the octopus of oil had through two generations become a part of the folklore of the harassed public. From the days in the early nineties, when Demarest Lloyd had written his bitter Wealth against Commonwealth, and later when Ida Tarbell had penned her comparatively mild History of the Standard Oil Company, the popular verdict had branded the oil magnates as first in the list of enemies. The seven men named in the bill of complaint had indeed integrated an industry essential in peace and war. The sixty-two corporate defendants for whom also Johnson was pleading had emerged through storm and stress as victors in that unrestrained competition nineteenth century America hoped to continue into the twentieth. The Tarbell lament for rugged individualism was termed unrealistic. But the bias against the old order in oil, and the hope for a new, were real, and carried the force of a legal presumption. The tactics of the tobacco trust hardly bore such implications. In the [236]

OIL AND TOBACCO local markets, where the great companies bought their tobaccos, trust methods encountered sullen, if impotent, resentment. But in the country at l a r g e there was no great outcry against the extortion of additional pennies f r o m the pockets of the consumer. N o half-century of lurid headlines, of public betrayal and private corruption, no five decades of consumer irritations and exactions, shouted down the forceful insistence of Johnson upon legal precedent and established principles. The user of tobacco still had to be persuaded and mildly cajoled, rather than dragooned. The tobacco combination was an open and p u b l i c agreement, its terms as clear as the oil compacts had been devious and secret. But the tobacco lords, looking forward to a h a p p y future of unbridled price fixing, were tarred with a brush that h a d smeared every trust and every monopoly. The press and public were in little m o o d to g o too deeply into causes and motives. Rightly rather than wrongly, they were not yet prepared to surrender the benefits of competition, wasteful though it be, for the vaunted efficiency of m o n o p o l y . The specter of vast, uninhibited power cast a shadow over the plan f o r a m o n o p o l y in tobacco. Consolidation was not viewed, f o r g o o d reason, as the happy augury of a new order. P a r t i c u l a r l y in tobacco, which no flight of fancy could c o n j u r e into a national pillar of war and peace, were they unwilling to give up a healthy rivalry for the consumers' patronage. In a hundred cartoons the government counsel was a Saint George battling two fiery dragons. When the smoke of battle had cleared away, J o h n s o n f o u n d himself thrown for a loss in both cases, but with important modifications in the S t a n d a r d decree to reward his efforts. The indictment of the New J e r s e y corporation was limited by neither time nor space. It began with the beginning of the oil industry, before Johnson h a d been admitted to the bar. It covered one hundred and seventy printed pages, with exhibits; it defined three periods of S t a n d a r d history (1870-1882, 1882-1899, 1 8 9 9 - 1 9 0 6 ) , and elaborated upon each. T h e testimony taken before the examiner filled twenty-three printed volumes. T h e story of incessant w a r s and e m e r g i n g war lords, of the clash of men and industries, was recorded in twelve million words, the equivalent of a hundred stout books, out of which the bold lines of accepted history took shape. The oil m o n o p o l y — A m e r i c a ' s first great industrial c o m b i n a t i o n — h a d become an established fact as early as 1877, with a single c o m p a n y controlling at least ninety percent of the business of refining and marketing petroleum. Millions of American households were still burning candles, whale oil, and other illuminants late into the sixties. T h e dark mystery that oozed out of the rocks of western P e n n s y l v a n i a p r o m i s e d [237]

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new light exceeding in brilliance anything before known. The rush to the oil fields had rivaled the incursion into California, precipitated by the sudden discovery of gold. The speculative oil fever had descended upon Philadelphia in the late sixties and early seventies with the consuming effect of an epidemic. Western Pennsylvania wilderness had been transformed into the busy headquarters of a new industry. Oil had flooded the eastern cities with light, but its wild stock-jobbing was convulsing all strata of society, and the frenzied rise and fall of oil quotations littered the early eighties with men broken in mind and body. The local bar had contributed its quota. Johnson's first contact with oil had resulted from his representation of the Pennsylvania Trust Company. The growing Standard Oil Company needed great numbers of tank cars to transport its products to the eastern seaboard. Its great amount of freight, and its developed talent for hard bargaining, posed problems for the railroads. Special cars were needed to carry the fluid light and power for which the world clamored. The oil producers had demanded especially low prices, and the refiners exacted further concessions. Pipe lines pressed the rail carriers to a sharp scrutiny of costs and methods of moving blue barrels and tank cars. Under the guidance of Johnson, a plan for financing the purchase of these cars by the railroads had been worked out. It was called the "Philadelphia Plan," and provided for the issuance of special trust certificates, later to be called "Equipment Trust Certificates," with a direct lien on the rolling stock. The particular merit of the plan was to eliminate the danger of later liens. The Plan, presented by the Pennsylvania Company to the Pennsylvania Railroad, was widely adopted by a hundred lesser roads. It proved its merits in the nineties, when many of the railroads, after the genial custom of the day, issued a bewildering succession of mortgage bonds and debentures, and sometimes fell into a friendly and at times recurrent receivership. Thereafter the Johnson role in the rise of the oil dynasty was something more than that of spectator. The entanglements with the legislatures of many states, the varied capabilities of such local lads as Tom Scott and Andrew Carnegie, were not outside his ken. Johnson's ears were always attuned to the drumfire of business warfare. In not a few instances his services had been requisitioned directly by a faction of the far-flung oil legions. Mainly, however, his advices had been sought by proxy. The repute of his office as the efficient remedy for legal headaches had long permeated the western counties. The special activities of local practitioners would be reflected in his own office. Associates and friends were active in collateral and subsidiary matters that impinged upon Standard Oil. George F. Baer looked after Reading Railroad, Reading Coal & Iron, and incidental Morgan interests. In this [238]

OIL AND TOBACCO sector " F r a n k " Gowen, whose early zeal routed the Molly Maguires, since the early eighties had served the rail holdings of the Vanderbilt family. On the home front, the legal staff of the Pennsylvania R a i l r o a d , servicing the far-reaching plans of Alexander J . Cassatt, had early adopted the custom of consultation with J o h n s o n for issues beyond the mere routine. T h e clash of iron horse with the oil monopoly, and the bitter fight of the two giants for the E m p i r e Transportation Company, were sufficient to a p p r i s e Johnson that the hardy spirits of the oil regions nurtured unbounded ambitions. H e had seen many of his own clients eliminated by the Standard policy of building its own barrels, m a k i n g its own acids, constructing its own warehouses, and creating its own selling agents. T h e impact of the more dubious devices of trust aggression had many repercussions. T h e strategy and tactics of S t a n d a r d sales policies, and the hundred devious shifts by which it edged into new territory and barricaded itself in the old, were well known. S t a n d a r d ' s subsequent entanglements with the law, the escapades of its chief executives, and the flight of its leaders f r o m the long a r m of the courts were current knowledge. J o h n s o n had little difficulty digesting the formidable record of S t a n d a r d Oil a s he read the voluminous notes, not line by line but, as was his custom, p a g e by page. The sensation of Standard's latest appearances in court had not yet died down when T a f t ' s Attorney-General instituted the suit for dissolution. T h e a p p r o v a l that had greeted the imposition of the penalty of $ 2 9 , 4 0 0 , 0 0 0 upon the Company foreshadowed the difficulties that lay ahead in combating the dissolution proceedings. The judge's reference to the " s t u d i e d insolence" of Standard's lawyers, and the public d i s a p p r o v a l of the later reversal by the Circuit Court, indicated that the task on the m a j o r issue of dissolution was well-nigh hopeless. The real aim c o u l d only be to soften the blow. N o r was the outlook for the tobacco merger by any stretch of a barrister's optimism a f a v o r a b l e one. T h e tentacles of the American T o b a c c o C o m p a n y , already astride the great areas of production, reached out to entwine through a subsidiary corporation every corner cigar store, a n d to control i m p o r t s by absolute ownership of the leading British comp a n y . T h e sway of the amalgamated interests over tobacco f r o m the first seedlings to the final smoke rings would mark a new high in industrial absolutism. T h e lawyer's a p p r o a c h to the two p r o b l e m s was quite different. Yet in each there was an insistence upon the continuing validity of the ruling in the Knight Case, and a limitation of the Northern Securities decision to its special facts. In both cases J o h n s o n fought h a r d to win the highest court to his [239]

JOHN G. JOHNSON interpretation of the rulings which represented his greatest victory and his most signal rebuff in that t r i b u n a l . Of the S u g a r T r u s t decision he s a i d : " I t has not been overruled or modified by any subsequent decision, and it has been expressly recognized wherever m e n t i o n e d . " He countered the contention of the Government that the K n i g h t decision was a particular conclusion under peculiar facts, and upon the admission of all parties that there was no direct or necessary obstruction to interstate commerce. He repeated the language of a historic case, to which his own city had been a party ( 3 Wall 7 1 3 ) : " I t is as important that the law should be settled permanently as that it should be settled c o r r e c t l y . " He recognized the ruling in the Northern Securities merger, but pointed out that it merely invalidated a combination that was prohibited by the state statute. " T h e S h e r m a n A c t , " he averred, " w a s an evolutionary and not a revolutionary statute; it did not proscribe the absorption of one corporation by another in the normal course of business, where such union is entirely valid under state l a w . " T h i s insistence upon the restriction of the Sherman Act to c o m m e r c e as opposed to manufacturing was not the fond delusion of a man of seventy. His instincts were sure, and his position, as he stood at the b a r of the court in the final years of the T a f t administration, was to be vindicated by later events. He was not merely falling b a c k to the last ramparts of conservatism. T h e S h e r m a n Act could not b e read apart from centuries of common-law interpretation: it was not a weapon to reach all the sins of business—real or i m a g i n a r y — t o be used as incometax violation was to be used twenty-five years later. In both cases J o h n s o n averred that the S h e r m a n Act had to be precisely construed in the light of the exact meaning of restraints and monopolies as used in the c o m m o n law. He struck at the suave assertion of his opponents that the statute applied whenever the direct result or the natural tendency of the contract or combination was a material obstruction of interstate or foreign commerce. He flayed the contention that the basic acts need not arise in interstate commerce or be done by those engaged therein, and pointed out that this would wipe out the old landmarks of state and federal power. In the Standard Oil Case his task seemed simpler. He pointed out the common origin and ownership of the companies included in the New J e r s e y corporation. H e pleaded that the men who had built up all these enterprises and still owned most of the stocks of the affiliated corporations, formed to run the different phases of the business, h a d the right to bring them all together again. T h e single holding c o m p a n y , S t a n d a r d of New Jersey, he maintained, was merely a legal confirmation of the actual facts, the ownership and control of the vast oil enterprise by the

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OIL AND TOBACCO seven men who had built it up. What m e n h a d divided they could unite again. He did not dodge the harsh facts of S t a n d a r d ' s long history: he could not deny the enormous volume of proof contained in the record; but he insisted that these acts of wrongdoing were the exception rather than the rule. That in most cases they were either the result of too great individual zeal in the keen rivalries of business, or of the methods and habits of dealing which, even if wrong, were commonly practised at the time. T h e l a n g u a g e of the prosecution bristled with condemnation of the oil monopoly. The facts had been set forth in the long record with relentless pertinacity, and the government spokesman pressed them upon the court. He insisted that the assailed combination had grown by o p p r e s s i n g the public and destroying the rights of others. " I t s entire c a r e e r , " he stated, " i s strewn with the wrecks of those whom, without regard to law, it has crushed." " S o conclusive is the proof on these s u b j e c t s , " he urged, "that the existence of this defendant, with the vast properties that it owns or controls, because of its infinite potency for h a r m , and the dangerous exa m p l e which its continued existence affords, is an open and enduring menace to all freedom of trade, and is a by-word and reproach to modern economic methods." These were harsh words, but they merely reflected events and episodes which could not be hidden even in the j u n g l e of testimony which h a d grown up. Johnson's legal position seemed secure, but it was the general opinion of lawyers, and no doubt his own, that the avoidance of criminal indictments against the S t a n d a r d coterie would be a substantial victory. The difficulties that loomed up in the tobacco case were essentially different. In oil there was merely a substantial restraint, a temporary control of a m a j o r part of the industry. In tobacco, the merger would result in the ownership of nearly all the production and much of the distribution. On the other hand, no previous unity had bound together the companies involved in the new combine. T h e contracts were steps on the path to complete monopoly. This posed most acutely the interpretation of the Sherman Act. L o g i c and previous decisions were on the side of the defense, and J o h n s o n made the most of them. His argument was simple and the conclusion logical. There could be no technical distinction between the simple purchase of a rival shop by the small tradesman and a similar acquisition of the stock of a great corporation. E a c h was a natural step in the age-old processes of b u s i n e s s ; each was at once the result of competition, and yet tended to curtail it. The Attorney-General had to admit that the reasoning was [241]

flawless;

JOHN G. JOHNSON but neither he nor the public would agree to the final conclusion. They would not bow to the actuality of monopoly, no matter by what steps it was achieved. Late in the afternoon of May 15, 1911, in a courtroom crowded almost to suffocation, the decision of the Court was read by Chief Justice White. He had lent his voice to refusal of the court to unscramble the S u g a r Trust many years before; he h a d also delivered a dissenting opinion when the Northern Securities Company was dissolved. It seemed a h a p p y augury for the effort of Johnson. However, these indications were misleading. The decision of the Circuit Court was affirmed with modifications. The defendant with its thirtythree subsidiary corporations, the Oil Trust, was ruled " a n unreasonable combination and monopoly in restraint of t r a d e . " The verdict was unanimous except for one important point. Justice Harlan dissented sharply because for the first time the word " u n r e a s o n a b l e " had been read into the Sherman Anti-Trust Law. The words in the statute "every restraint of t r a d e " were to be construed in the light of reason, not literally. The court held that corporations whose contracts are "not unreasonably restrictive of competition" were not affected. The decision was broadcast as a victory for the Government; but it was a technical victory only. Johnson could be satisfied. The business of his client was not imperiled, no criminal proceedings were carried out against the seven trust directors, or even hinted at in the Court's opinion. It approved the substantial b a s i s of the company's organization and operations, but ruled that they were not in technical compliance with the Sherman Law. Representatives of " B i g B u s i n e s s " and progressive statesmen understood its practical import. The next day the aging Carnegie told the New York Peace Society that he was a very happy man, and hailed the decision as the beginning of a new epoch. J . P. Morgan, buttonholed in London on his way to the Titanic launching, found the verdict "very satisfactory." T o Progressive Senators like LaFolIette and Kenyon, and to the Democrats, the "rule of r e a s o n " was a discouraging setback. Senator L a F o l Iette s a i d : Every trust will now come into court and claim justification on a special set of facts going to support the claim that it is not restraining trade unreasonably, and it is to be expected that courts will make use of a sliding scale of reasonableness to apply to each case. The court had done just what the trusts have wanted it to do, and what Congress has refused steadfastly to do. Even President T a f t in the White House was disappointed by this new interpretation. In 1910, Senator Nelson, at the behest of " B i g Busi-

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ness," had sponsored a "rule of reason" amendment to the act. It had been defeated. In 1910, Taft had denounced the Nelson Bill in his message to Congress. There were other prominent dissenters. James M. Beck, former Solicitor-General, said: The greatest court in the world, after deliberating for more than a year and writing an opinion of one hundred pages, has failed to interpret the law that businessmen must interpret from day to day under penalty of going to jail. How great was the concession to industry wrung by Johnson from the Supreme Court in its enunciation of the "rule of reason" can be gathered from the dissent of Justice Harlan: All who recall the condition of the country in 1890 will remember that there was everywhere, among the people generally, a deep feeling of unrest. The Nation had been rid of human slavery, fortunately, as all now feel; but the conviction was universal that the country was in real danger from another kind of slavery sought to be fastened on the American people, namely the slavery that would result from aggregations of capital in the hands of a few individuals and corporations, controlling for their own profit and advantage exclusively the entire business of the country, including the production and sale of the necessaries of life. The court had in fact adopted the contention which Johnson had so strongly urged upon it in the Northern Securities case. He had fought against a ruling which would condemn "bigness" as such. The highest court reflected the variable state of the public mind on the economic questions at the core of the issue. It said: A survey of the legislation in this country on the subject from the beginning will show, depending as it did upon the economic conception which obtained at the time . . . that acts at one time thought wrong . . . at another time were thought not to be of that character. The famous dissent of Justice Holmes in the Northern Securities case had found a complete expression in this decision. The degree of monopolistic control was to be the criterion thenceforth. This was the meaning of the "rule of reason," and it foreshadowed failure for the tobacco merger in the second case awaiting decision. Fourteen days later the decision of the Circuit Court of Appeals in favor of the American Tobacco Company was reversed. The ruling was more drastic than the oil pronouncement. It was a more comprehensive application of the Sherman Act than had been affixed to it in any previous decision. It held invalid a contract, the result of which or the necessary tendency of which was to bring about

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a material restraint of interstate commerce. It indicated that the act complained of need not be any part of commerce, or indeed be done by the parties 90 engaged. Practically, the scope of the decision was limited to "airtight" monopolies, which could only be a rarity in industry. Johnson could be content. In spite of the pressure of newspaper headlines, there had been a return to the old landmarks for which he had contended. The court had indeed furnished no yardstick to assist business men in organizing their operations, but the trend of judicial thought was definitely toward a recognition of the efficiency of giant economic units. With more adequate federal regulation of the railroads and large corporations, public fears of monopoly began to recede. There is an interesting anecdote attributed to Chief Justice White. "When I first became a member of the court," he is reported to have said, "Johnson was constantly before us, and we all thought of him as by far the most powerful advocate of his day. But," he added, "when later Johnson argued the great anti-trust cases, which in fact gave him his national reputation, all the justices felt that he was not at his best because he had lived into an economic era which he could not understand." Apart from further victories which Johnson was to win in cases involving the Sherman Anti-Trust Act, the Standard Oil decision vindicated his position. The decisions that from 1904 to 1911 seemed to follow the Northern Securities case, hardly bear out the quoted language of the Chief Justice. On the contrary, they would indicate that the lawyer had a correct perception of the economic forces in operation, in his insistence that these did not bar the application of the old principles. Meanwhile Johnson was busily taken up with the demands of his practice. Victories, great and small, were a weekly and almost a daily occurrence. The machinery of the legal mill in the Land Title Building purred with neat precision. The attitude of the highest court had for a time irked and mystified the old lawyer. It had raised doubts in his own mind. Had he failed to keep step with the resistless march of new forces? Had the new conditions—the new inventions and discoveries— dimmed the sharp outlines of the old principles of the common law? Now the road seemed clearer. The old rules of the law still sufficed! There was no need to change the old rules. It was a bad precedent. It set the whole world of business and an entire profession adrift from every mooring. There was no sag in the bulky shoulders of the lawyer. The head was held high, the shoulders thrown back; he seemed confident of himself and the course he had taken.

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XXIV

The Private Gallery of Esquire Johnson I N 1858, when the "Western Blizzard" was leveling banks and mercantile houses, William P. Wilstach, a dealer in saddlery hardware who had reached the ripe age of fortythree, decided to retire. He built himself a mansion at the northeast corner of Eighteenth and Walnut streets, and for the last twelve years of his life devoted himself to collecting works of art. He died in 1 8 7 0 at Saratoga. His widow, Anna H., increased his estate of several hundred thousand dollars, and added to his collection of paintings. At her death in 1892, her bequest to the City of Philadelphia was estimated at $2,000,000 and included 150 paintings. These were to be the nucleus of a Municipal Art Gallery, and for many years were housed in Memorial Hall—one of the buildings of the Centennial Exhibition in Fairmount Park. In December 1895, Johnson became a member of the Fairmount Park Commission, and devoted himself particularly to building up the Wilstach Collection. In the late nineties and in the first decade of the new century about five hundred paintings were added. These included Munkacsy's "Last Day of the Condemned," Jean Paul Lauren's "Vengeance of Urban V I , " Constable's " O l d Brighton Pier," Van Dyck's "Crucifixion," Murillo's "Christ Bearing the Cross," Raeburn's "Portrait of Colonel MacDonald," Jan Steen's "Fortune Teller," and Whistler's " T h e Lady with the Yellow Buskin." Under his direction, the paintings in Memorial Hall came to illustrate the leading schools of virtually every period. The collection—like the canvases he gathered for himself—exemplified his own concepts of art. In his travels in Europe he purchased many pictures, and if the funds at the disposal of the trustees were running low, he advanced the moneys from his own pocket. During this period a mysterious benefactor offered additional gifts to the collection, which in several instances made possible the acquisition of notable paintings. Near the end of 1907 it [245]

JOHN G. JOHNSON was disclosed that Johnson's advances and gifts had totaled several hundred thousand dollars. At this time he also became a director of the Metropolitan Museum of Art in New Y o r k . Thus he spent most of his vacations in the art centers of Europe. His recognition as an expert enlarged his services beyond the needs of two public museums and the expanding aggregation of paintings in his own home. But he was more than the gatherer of the products of other minds; he was an artist in his own right. In his law office he was creating by his own work a private gallery of striking figures of his own day and age. His own subjects were neither chosen nor painted by the standards of any special school of art. They were found in the records of his cases. Here were described the men and women of the three generations embraced in the fifty-odd years of his practice. Fortunately the revelations of these pages were not popular reading. The private lives of hundreds of the good citizens of Philadelphia were sketched vividly. There were severe character drawings in the manner of the early Italians; there were brilliant colorings after Velasquez, etchings and profiles of personages of the day in the more modern style of Renoir and Matisse. Many portraits that emerged from the dusty annals were strikingly reminiscent of Daumier, the French satirist whose sketches were included in Johnson's collection. The lawyer himself resembled the fighting advocate of " U n e Cause Célèbre," and there were other overtones in the whispered consultation of lawyer and client in " U n e Cause Criminelle," the self-satisfaction of the victors in "After the T r i a l , " and the triumphant descent of " T h e Stairway of the Palais de Justice." Over the years Johnson presented a series of studies unrivaled in breadth and scope. His clients included the old and the young, the rich and the p o o r ; the possessors and the dispossessed. By and large it was a private gallery, but now and then the curtain was lifted as cases came to open trial, and the public docked to see and hear. In this long gallery of litigants were all the notables of the city; the mayor and councils, even the judges of the courts. T h e leading families, whose position was assured, were well represented; there were other prominent families, shown in their first strivings on their way up the ladder, and not a few in less glamorous posings on the way down. In this collection were individual pictures of astute merchants, arrogant landlords, scheming brokers, unctuous bankers. Here was the absconding cashier, the embezzling trustee, the suave promoter. There were group portraits too—the directors of the leading banks, normally full of solicitude for the trusts in their care—in an exceptional case reaching out to grasp the property of a client. The staffs of hospitals, the guilds of lawyers, the officials of railroads, water companies, gas companies, were shown in revealing canvases.

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There were scheming politicians here, party bosses and their henchmen—reformers with an aura of respectability and wild-eyed dervishes of the lunatic fringe. The skirmishes and feuds of factions and clans were here: the struggle for power and place within and without companies and organizations; sordid wrangles over church property. Always and ever there were "men of property," in the dawning age of stocks and bonds, franchises and privileges, trusts and estates. Here was the intricate pattern of upper-class life, and the vast panorama of bourgeois hopes and fears. Here in multitudinous variety and example were all the tremors and heartaches, the private feuds and imbroglios of acquisitive society. But there were other portraits in any study of Johnson. Nothing that he touched was drab or commonplace. His own genius threw into sharp relief the men and women about him, the lawyers with whom he crossed swords, and the younger practitioners who flocked to him. There was no room in his office for mediocre performance. His assistants were picked men who found inspiration in the example of their chief. As the years went by, and Prichard attained distinction, and Hammersley and Bayard achieved a definite niche in society, younger men came into the office. Thomas S. Gates, able, serious, and practical, showed an early flair for the intricacies of estate law. Such was his grasp of the many trusts of the Pennsylvania Company committed to his care that he soon became vice-president of that company. A non-conformist in the law was Oliver Judson, whom family tradition directed to the Johnson office. But he was more interested in music, and gravitated to New York and a career in that field. When the lawyer's office was moved westward in 1905 to the Land Title Building, new assistants were added to the office staff. Ralph Evans, handsome and florid, and looking for all the world like a successful stockbroker, was confident and capable, and few were the fine points of the law that escaped his scrutiny. He fell heir to much of Johnson's style as well as his minor cases, and became an able trial lawyer. But his constitution, though sturdy, felt the strain and he died relatively young. Maurice Saul was a special favorite, probably because he most nearly approached the older man's stature, and alone was unawed by his chief and seemed able to meet him on his own ground. Even the final suite in the Land Title Building was unique; no detail conformed to conventional standards. The waiting room was not impressive, the furnishings were plain, the chairs were hard oak with wooden seats, and had simply been brought up from the old offices. When it was suggested that the benches be covered with leather cushions, the lawyer had demurred. He did not pamper himself, and he would not pamper his clients.

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" I don't want them hanging around here," he had said with characteristic directness. No member of his family came to his office, and art and paintings were zealously excluded. Everywhere were books—the state reports of course, the New York decisions, and the English reports too. Shelves in the inner offices reached to the ceiling; Bayard's room was crammed with nothing but textbooks. All in all, Johnson had everything he wanted at his fingertips, and the library was one of the finest in the city. The new office boy who took up his varied duties in 1901 had been at work for over a month before he caught a glimpse of Johnson. The latter was in his office long before the youngster arrived, and left long after he had gone. Even the clerks and stenographers had to be cast in a sturdy mold to stand up to the routine of the office. Of a Saturday afternoon it was not unusual for the lawyer to dictate for three solid hours to his own secretary at a rapid, steady pace. The business of the office overflowed into many channels, and the ablest young men of the bar were always on hand to siphon off the cases that for various reasons had to be directed elsewhere. As he grew older, the lawyer found a keen delight in these contacts with the rising generation. Toward some of these men his a flection was more nearly that of a father than a friend, and he delighted in advancing his own favorites at every point. Not a few of the leaders of later decades could trace their rise to his sponsorship. Johnson was equally extreme in his dislikes. He loathed the pontifical barrister of the old school, and the grandiloquence of Benjamin Harris Brewster was reported to have been one of his pet aversions. On one occasion the selection of another attorney was discussed: a colleague suggested the name of one who held high office, and an even higher opinion of his own talents. " W h a t ! that old blatherskite!" snorted Johnson. Usually his appraisal of capabilities was accurate. But a few able men found little opportunity in his office, due to his curious fixity of outlook. The young men who were employed as office boy and stenographer were so regarded long after the first had reached maturity and the second had been admitted to the bar. William, whose ventures in business could hardly be termed successful, never came to the office. Some confusion did arise when his son, who had studied law, entered practice as "John G. Johnson, J r . " Between the lawyer and brother Alfred there were real bonds of affection. There was a close resemblance between the two. Alfred seemed a smaller, but reasonably accurate, facsimile of his older brother. At an early date he was placed in the mortgage department of the Pennsylvania Company, where he amazed his co-workers by his remarkable facility with figures, and a more remarkable repertoire of off-color

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stories. The flavor of some of these permeated the Trust Company atmosphere long after his demise. The mediocre abilities of both brothers served only to emphasize that the exceptional gifts of the lawyer were not the natural flowering of superior family lines. His talent was unique; in his thousands of cases there was always the sure touch of the master. But there was more in the pattern of his daily round than the strokes of a craftsman. An inspiration and a philosophy permeated his whole career and clarified the excellence of each consultation in his office and every performance in the courtroom. That philosophy stemmed from a boundless enthusiasm for the law. It had its source in a concept of struggle and combat, and a calm assurance that through the judicial process one arrived at ultimate truth. To the latter was coupled a love for the common law and the belief that it was the perfection of reasoning. Hence he could contemplate with composure a decree which would be popularly considered inequitable, if it were founded upon the undoubted law of the land. To him a reforming judge—a judge who was seeking ways for doing "plain justice" outside of the law—was an abomination. All that society holds dear: the security of life, the protection of property, the promotion of human happiness, the restraint of crime, the endurance of the social order by which society attains its civilized aspects, in his view depended solely upon the true application of the law in the tribunals of justice. For this, in his opinion, all government existed, and this was the sole aim and end of government.* He also believed that the touchstone of liberty was to be found in the courts, and that the confidence of each man in his government was buttressed or destroyed by his individual experience with the process of justice before a magistrate or a high court judge. The quality of justice depended upon the precision of the instrument and the integrity of the judge. The work of Johnson contributed to both. His researches and his arguments indicated the logic and certainty of the law; his conduct in and out of the courtroom elevated the personality of the justices. He would admit that in spite of precedents the courts at times might be swayed by personal motives. The law might bend before personal considerations as before public currents. But it was his conviction, bordering on an article of faith, that the integrity of the courts, fostered by a high-minded profession, must remain the last bulwark. Johnson's interest in matters that seemed to other notable lawyers trivial was therefore neither an accident nor an eccentricity; in fact, * "John G. Johnson," by James Gay Gordon, in North American,

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nearly all his deviations from the normal pattern were themselves the acme of normality and part of a single plan. In the long story of his career there were unforgettable incidents. There were cases that stood out from the mass and retained their individuality apart from the facts or the law. The technical issue of a will made by a husband on the eve of his marriage, or the effort of a small property owner to halt the construction of a great emporium. The grasping owner of a central city building, eager for a high rental, seeking to dispossess a business tenant. The names lent a special interest to this canvas as to many others. The son of this landlord later became notorious as the country's leading draft dodger. The plot was foiled by a neat legal device drawn from his inexhaustible repertoire by Esquire Johnson. Even more vivid were the promoters and industrialists of the eighties and nineties who merged the street railways of half a dozen cities. There were later sketches that lighted up the career of the lawyer. The portrait of Elizabeth Johnson, proud old mother, after life had been made smooth and carefree, telling and retelling to her intimates the story of his youth. How John, all of eighteen years, but elevated to man's estate by adversity and death, had tempered the sorrow of her widowhood! How in that hour she had taken strength from his vow that he would make her life worth living! Even more eloquent of the bond between mother and son was the shock of her passing in 1912, at the ripe age of ninety-two. But the most striking pictures in the lawyer's gallery were self-portraits. There is the description of Johnson delivering a brief address after the death of a beloved colleague, early in 1904. Richard C. Dale was the son of a lawyer who had been killed in the Civil W a r ; though comparatively young, he had stood out in any gathering of the bar. Johnson had the highest respect for his abilities as a lawyer and a deep affection for him as a man. His words on that occasion were surcharged with feeling and moved his hearers greatly. " A loss like this," he said, "makes us hope for an immortality of the soul, for a renewal in another sphere, of sundered relations. There is some consolation in the thought that if we could question, 'How is it with thee, Dick Dale, is it well?' the only answer that, in view of his blameless life, could come, would be 'All is well.' Let us then beg of our dear friend, 'Say not good night, but rather, in some fairer clime, bid us good morning.' " The picture that stands out in the entire gallery of clients and colleagues was an etching of Johnson in action, copies of which found their way into hundreds of lawyers' offices. The power and the force that carried all before him were shown clearly. They inspired Chief Justice White to note:

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F o r his personality I formed a very strong attachment and never ceased to admire the ruggedness of his integrity and the intensity and devotion with which he pursued his ideals to duty, which were the very highest characteristics of his professional life. This engraving illuminates the answer of Justice Brown of the Supreme Court of the United States to a direct question, " W h o m do you regard as the greatest lawyer in this c o u n t r y ? " T o this the justice replied, " S p e a k i n g among ourselves, we call Mr. Johnson 'the K i n g of the American B a r . ' " There is another fine portrait of Johnson as he awaited his cue to argue the constitutionality of the Adamson Act before the highest court.* His large hands and feet shift impatiently in his eagerness to go into action. T h e hunch of his great shoulders indicates vast energy; the strong face set off by bushy eyebrows, the mouth hidden under a heavy mustache, the kindly blue eyes, all bespeak a mixture of impulsiveness and humor and tolerance. Here is an intensely human personality, strongly reminiscent of Mark Twain at the height of his powers. Here is the confident vitality that makes superlative performance easy, the prototype of so many of the world's greatest artists. But Johnson in action is a more dynamic study. T h e voice is a curious combination of harshness and melody. Every muscle of throat and lungs appears to vibrate, every power of mind and body is thrown into the fray. There is no aim at elegance, only the effort to be clear. Each word falls from his lips like the departure of a prized friend. One is suddenly aware of the terrible impact of phrase and sentence directed by a keen brain and encased in utter sincerity. Yet the final impression that remains is not that of the effective advocate in court. Rather is it the recollection of Johnson in his office, simple, sympathetic, the Honest Lawyer so well described by S i r R o g e r L ' E s t r a n g e — a trusty pilot through troubled waters. * Allen, H. Merrian, "Lawyer and Art Collector," Bellman,

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XXV

The United States against the Steel Corporation T h e fall of 1 9 1 4 found Johnson back from Europe, and once more engaged in the daily round. The death of mate and mother had played their p a r t : there was a noticeable sag to his broad shoulders. The old confidence was still there, but there was a new wistfulness—a strange sadness of countenance. The eyes were tired, and something of the mystery of life was in the new face—an older, mellower face. The lawyer spent more time in his office, and his courtroom appearances were limited. Gradually the old buoyancy returned; the shoulders straightened again. That October an interesting echo of his European adventure came to his office in the form of a letter from his old friend Daniel Willard. A substantial cheque was enclosed for many thousands of dollars—the moneys he had advanced to defray the hire of a steamer for his fellow Americans stranded in Paris, Berlin, and Genoa, and a great deal more—the profit in this episode, when receipts had been balanced against the costs. The cheque went back by the same mail; he would have none of such bookkeeping. The moneys he had advanced, yes, but not a dollar beside. Later in the month he was in Harrisburg heading the lawyers of the Pennsylvania Railroad in the Dauphin County Court. The case was a vital one in the labor policies of a great carrier that was shortly to play so important a part in the transportation of war supplies from the foundries of the midwest and the blast furnaces of Pittsburgh to the Eastern seaboard. But other matters of consequence were in the air those crisp October days. Other events of equal interest—if not of equal moment—with the progress of the war in Europe occupied the American mind. Johnson's thoughts too wandered from the business of the hour as the shadows lengthened and an early autumn dusk pervaded the courtroom. The argument had continued far beyond the usual hour, and the court, weighing labor hours and wages, was working overtime. [252]

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At five o'clock Johnson rose from his chair. "May it please the court," he asked, " a matter of importance has arisen, and I request a recess of fifteen minutes, so that counsel may have this cleared up." The judges nodded and relaxed in their chairs. The few spectators craned their necks to catch the new turn in the case, while reporters exchanged queries about the huddle at the counsel table. Johnson scribbled a short message upon a slip of paper and passed it to a secretary who sat nearby. The latter left the room hurriedly, returning in about five minutes. She handed him another message, which he scanned thoughtfully. Thereupon the paper passed from hand to hand among his colleagues and then over to the counsel at the opposite table, and finally was handed up to the court. Each of the judges perused it gravely, whispering in hushed tones to one another. Meanwhile the newsmen were frantic in their efforts to gauge the momentous proceedings that had interrupted the hearing, plunged the lawyers into despondency, and wrinkled the judicial brows. Years later George Stuart Patterson, who was general counsel for the Pennsylvania Road and sat beside Johnson on that afternoon, revealed the guarded secret of that conference—the results of the final game of the World's Series between the Philadelphia Athletics and the Boston Braves. Always a baseball fan, Johnson rarely had the opportunity to do more than read about the game. Even when his legal staff staged a game against the Dickson office, the last moment found him taken up with a new case and unable to attend. But his knowledge of batting averages, scores, and general sport statistics was as amazing as his knowledge of art treasures and court decisions. In these years his information came entirely from newspapers and the North American scoreboard opposite his office. Invitations from clients to share a box invariably had to be declined. Later that month he found himself playing to a crowded house. For the time all side issues were forgotten; even family cares, the passing of friends, the loneliness, were submerged in the heavily charged atmosphere of the suit against Big Steel. That politics makes strange bedfellows was never more clearly shown than in October 1911, when George W. Wickersham, AttorneyGeneral under President Taft, filed a suit for dissolution of the United States Steel Corporation. The action came at a critical hour in the administration of the genial President. The House of Representatives, Democratic as a result of the elections of November 1910, had charged the President with reaction. It had cited his friendliness with the "trusts," and a House Committee had investigated the organization and growth of the United States Steel [253]

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Corporation. Its report told a long story of irregularities and abuses, of tariff favors and other benefits from the McKinley and Roosevelt administrations. Taft countered by instituting a series of actions against leading corporations. In fact, within three years twenty-two such bills in equity and forty-five indictments under the Sherman Law were launched. So swift was the measure against the Steel Corporation that Secretary of State Knox was later reported to have said that the suit had never been discussed by the Cabinet. Even under Roosevelt fewer equity suits and about half that number of indictments had been brought. A backwash of the Steel Trust action was directed against the former President. He had returned from his world tour, bagging lions in Europe and smaller game in Africa, to find the White House occupant fallen on evil days; the popularity of the President was diminishing. From discreet silence Roosevelt had passed to faint praise, and thence to mild condemnation. He made clear that the man in the White House was botching a job which he had done and could do well. The inevitable course of events was not lost upon Taft. The suit against the steel company would strike a double blow. It would allay the rising tide of Democratic insurgency; it would throw a lurid light upon a much-discussed Roosevelt action in the Panic of 1907. The Government charged among other counts that the Steel Corporation was a monopoly, and that it had achieved this in part by purchasing the Tennessee Coal and Iron Company four years before. It further averred that the Corporation had deceived and misled Theodore Roosevelt into approval of this acquisition. In the next number of his Outlook, dated November 16 of that year, Roosevelt angrily refuted the aspersions upon him: The Administration's allegation that I was misled . . . is not correct. The representatives of the Steel Corporation told me the truth. . . . I was not misled. . . . The representatives of the Steel Corporation did not deceive me. . . . Any statement that I was misled . . . is itself not in accordance with the truth . . . I reaffirm everything. Thus it came about that when the defendant in the most critical lawsuit in American business history retained Johnson as its chief counsel, he found himself allied with his old opponent in the Northern Securities Case. The ex-President not only defended his part in the Tennessee Coal and Iron deal but, as the suit started its slow march toward final decision nearly ten years later, he took the stand as the defendant's chief witness. Theodore Roosevelt, whose hat was not yet in the ring, but who was already a candidate for a third term, launched into a long campaign

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Bessemer in England served the steel men well indeed. By the mideighties, the operations and profits of the Carnegie Steel Company were amazing two continents. The alliance of Carnegie with Frick, and the mounting earnings of the amalgamated steel and coke companies became woven into the fabric of expanding industry and labor conflict that was convulsing the nation. The union of Carnegie, the brilliant, erratic schemer, who rarely saw his office, with the patient, plodding, by no means unimaginative Frick, who seldom left it, welded the sprawling steel companies into a coordinated empire. It also wrote an exciting chapter of political and social history. Through Boies Penrose, who had forsaken a puny attempt at law practice for the more direct rewards of a party boss, the duo guarded Pennsylvania industry in the state and national capitals. By tariffs for the steel infant that had reached maturity they thwarted foreign competition, and by rail rates they held at bay rival interests in other states. The public dismay at revelations of fraud in armor-plate contracts for the navy was climaxed by echoes of bitter industrial warfare. The country seethed with excitement over the Homestead tragedy. Everywhere pages were printed of the sins of the Steel Trust; legislative bodies and committees of inquiry reached for the secrets of bloated, tariff-protected monopoly. At every crossroads the evils of new combinations were discussed. Carnegie and steel, Rockefeller and oil, ran a close race for the nation's disfavor. Such were the first emotions aroused by steel, and to Johnson, retained by Frick in his epochal fight with Carnegie over a division of the profits of the company,* the costs, the intrigue and the callous exploitation were a familiar story. The victory scored by his client had served as a curtain raiser for the services which he was to be called upon to perform for the United States Steel Corporation. The case of Henry Clay Frick against Andrew Carnegie had been settled late in 1900. Shortly thereafter, the company became the nucleus of the elder Morgan's merger of two-score companies in every phase of steel making. The plan for organizing the United States Steel Corporation was made public March 3, 1901, in an advertisement signed by J . P. Morgan & Company. The reaction was curiously varied. The campaign against trusts and monopolies had been dimmed somewhat in the excitement of the Spanish-American War and an imperialist frenzy. In conservative quarters there was a nationalist pride, not unmixed with an incurable optimism. Mark Sullivan called it " a superficial egotism inspired by the grandiosity of the biggest trust in the w o r l d . " ! * "Carnegie, Frick and John G. Johnson," Temple Law Quarterly, July 1933. f Our Times, by Mark Sullivan, Vol. II, p. 351 (Charles Scribner's Sons, 1927).

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The merger was indeed greeted in many magazines as the herald of a new era in industry. Word paintings of the glories of economic harmony supplemented the even rosier forecast of world peace, that, under the initiative of the Russian Czar, seemed to lie ahead. The cooperation of Morgan with the Rockefellers and the Rothschilds, which was seen in the steel amalgamation, came in for special praise. "The World's Greatest Revolution" was the title of an article in the Cosmopolitan, while in World's History another writer asked, "Will Messrs. Rockefeller and Morgan, having reduced production to scientific lines, proceed to the analysis of the problem of distribution?" In McClure's the essence of the steel merger was defended as the elimination of wasteful competition, with the consumer and the worker to share the benefits. There was much scrutiny of the status of steel-making in Great Britain and in Germany; calm appraisals of the need for cooperation at home if foreign competition was to be met successfully. The mention of the Rothschilds held out the wistful hope that harmony could be substituted for the keen rivalry of the international markets. There was, however, a more spontaneous reaction in the public press, and in many magazines editorials viewed with alarm while special articles pointed with pride. The Boston Herald saw a drift to socialism if "a limited financial group should come to represent the capitalistic side of industry," as the lesser of two evils. The Philadelphia Evening Telegraph considered that If a grasping and unrelenting monopoly is the outcome, there will be given an enormous impulse to the growing antagonism to the concentration of capital, which may lead to one of the greatest political and social upheavals that has been witnessed in modern history. The New York Evening Post held that If the raw materials of iron and steel are ever brought under monopoly control, society will find a way, under the law of eminent domain, or otherwise to protect itself. Some observers, like Dr. Albert Shaw in the Review of Reviews, saw the disappearance of the competitive system. Dr. Arthur T. Hadley, President of Yale University, declared that the alternative to the regulation of the trusts was an emperor in Washington within twenty-five years. The Hearst papers saw a "managerial revolution," with the ruler of the steel trust supplanted by a labor trust more dangerous and more aggressive. Not a few cartoons pictured Emperor Morgan as already enthroned, with President McKinley and Mark Hanna (official and unofficial rulers), King Edward VII, and Wilhelm II as his pages. [257]

JOHN G. JOHNSON F e a r s of such w o r l d d o m i n a t i o n b y the Steel T r u s t were echoed in G e r m a n , French, a n d E n g l i s h p a p e r s . B r y a n ' s Commoner voiced a h u m o r that h a d b o w e d to the inevitable: " ' A m e r i c a is g o o d enough f o r m e , ' r e m a r k e d J . P i e r p o n t M o r g a n a few d a y s a g o . "Whenever he doesn't like it, he can g i v e it b a c k to u s . " In spite of the torrent of hostile w o r d s , the new-born steel c o r p o r a tion w a s off to an excellent start. T h e h o p e f u l a r m y of investors registered its a p p r o v a l a l s o a n d h a n d e d its m o n e y s over the wickets. T h e satellites of steel a n d the s p o n s o r s of the e n g r a v e d certificates registered a higher enthusiasm at a great dinner given to the elder M o r g a n , at which roseate forecast flowed with the c h a m p a g n e . It w a s fulsomely declared that with a m a n like M o r g a n at the h e a d of each industry, c o m m e r c e would be stabilized a n d p a n i c s w o u l d be a thing of the p a s t . Later indeed, expert o p i n i o n veered to the belief that the steel combine was a necessary and fortunate step. T h a t over f o u r d e c a d e s prices were drastically reduced, the s e a s o n a l v a r i a t i o n s of e m p l o y m e n t minimized, and higher s t a n d a r d s of efficiency b r o u g h t to the industry. Such, however, was neither a c a d e m i c doctrine n o r the temper of the p u b l i c on October 2 6 , 1911, when, flushed with its victories a g a i n s t S t a n d a r d Oil, the T o b a c c o T r u s t , a n d other c o m b i n a t i o n s in essential industries, the government m o v e d to d i s s o l v e the United States Steel C o r p o r a t i o n . T h r o u g h o u t his a d m i n i s t r a t i o n the e f f o r t s of Roosevelt a s the great T r u s t Buster h a d been duly a c c l a i m e d in the p u b l i c p r e s s . In n e w s p a p e r p a r l a n c e , " h e h a d b a g g e d twenty-five of those lawless monsters with federal i n j u n c t i o n s . " E d i t o r i a l s h a d s p o k e n of the cult of c a p i t a l i s m in industry a s p a r a l l e l e d by the cult of b o s s i s m in politics, and highlighted references to the l a w m a k e r s a s s e n a t o r s f r o m S u g a r , Steel, Wool, and T o b a c c o . National indignation a g a i n s t the a b u s e s of finance, s h a r p l y r o u s e d in the panic of 1907 by the links between c o r p o r a t i o n s , politicians, a n d p u b l i c officials, rose to a new pitch with the p u b l i c a t i o n of the F o r a k e r Letters. T h e b i a s of rich senators, b o u n d to b e richer, h a d been e x p o s e d in a p o p u l a r n o v e l — T h e Crime of the Senate—several years before. B u t now the actual f a c t s — t h e s p e c t a c l e of l e a d i n g s e n a t o r s a s hirel i n g s of special i n d u s t r i e s — a d d e d f u e l to the revolt of the P r o g r e s s i v e s . T h e evils of S t a n d p a t i s m and the O l d G u a r d threatened to engulf the P r e s i d e n t ; in desperation he s t r u c k b a c k to fix the b l a m e u p o n the great industrialists. T h e r e w a s witnessed the p e r e n n i a l s p e c t a c l e i n a financial crisis of business b l a m i n g the G o v e r n m e n t , a n d G o v e r n m e n t officials in turn casting the onus on the leaders of b u s i n e s s . T h e suit was b e g u n in 1911. Over nearly three y e a r s , g r e a t r e a m s of testimony were gathered a b o u t steel-making a n d B i g S t e e l — i t s c o s t s , its government contracts, the activities of the Steel Institute. N o t h i n g

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was overlooked in the endeavor to show restrictive sales and price policies. Tariff protection, its causes and effects, was gone into, as well as the sales of by-products. The matter of interlocking directors came in for close attention, and United States Steel as a Morgan company was tied up with Pujo Committee revelations and the Money Trust. The policy of uniform prices in the steel industry, and the informal dinners inaugurated by Gary for the exchange of data among producers, were brought into the picture. Nor was the acquisition of Tennessee Coal and Iron forgotten. It was indicated, as had been charged by Congressman Lindbergh, that the panic of 1907 was precipitated by the money powers in order that the steel colossus might grab this company and perfect its monopoly of the industry. It could not be urged that the Steel Trust controlled the steel business, but it was stated that it dominated over fifty percent of production and distribution. The original intent of the promoters in 1901 to create a combination that would dominate the industry was the keystone of the Government's case. In retrospect many of the contentions of the Government seem the extravagances of the trustbusting fever. In fact, in the cold light of a less delirious hour, certain facts seem clear. In the years preceding the war there was little awareness of the importance of the steel industry as the backbone of the national economy. The conflict between the great industries of the United States, England, Germany, and Japan was entirely lost upon the public. The growing rivalry between Germany and England, climaxed at Agadir that year, and the possible effects upon this country, were overlooked. The press and the pulpit emphasized the goal of universal peace and ignored the darker realities of economic conflict. Norman Angell properly pointed out the futility of war, but accepted the several decades of European peace as normal in spite of feverish preparations on land and sea. The words "balance of power" had lost their real significance; it was forgotten that Holland, Denmark, Norway, and Belgium enjoyed their prosperity only by sufferance of the Great Powers. Oil, copper, and steel—were viewed as prizes in a strictly private contest. The ideal of unrestrained competition accorded with the robust individualism of the frontier. The nation, grown to maturity in a world torn by conflict, still looked backward to the earlier days. The Sherman Act was hardly a substitute for comprehensive regulation of growing industries. Within a few years this was to become clear and many phases of domestic industry and foreign trade were to be excluded by special statute from anti-trust prohibitions. Special commissions and regulatory bodies were to be set up to supervise the operations of great companies, to fix prices and methods of competition and protect the interests of the consumer and the public. It became clear that free com-

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petition was not a simple ideal in such industries as steel, motors, railroads, telephones, where a vast amount of capital and in some cases special franchises were prerequisites to entry. While in some fields the outcry against the trusts came from consumer interests, in others the initiative was taken by large independent units who were battling the larger groups of the industry. The practice of wielding the anti-trust club to regulate industry was open to legal and practical drawbacks. Possibly it served a purpose; the occasional airing of charges acted as a deterrent while a better system of regulation was being evolved. It is difficult at this day—when the "trust" no longer rouses the fear and hatred of the pre-war era—to grasp the hostility Johnson confronted. The issues were by no means clear. As in the oil cases, there had been abuses, impositions, and exactions. Competition in the industry of feast and famine had at all times been rigorous. The older record of steel was not in evidence, but it had influenced public and judicial opinion. In addition to narrow legal questions which were inherent in a proceeding under the Anti-Trust Act, Johnson had to fight for an impartial judgment of facts and figures and an unbiased scrutiny of complex events. After much preliminary skirmishing, the Steel Trust Case came before the United States Circuit Court of Appeals in Philadelphia for semifinal determination. The picture Johnson drew in the last days of October 1914, of industry and politics throughout the world was noteworthy. He spoke for the steel producers who were under attack. He defended Gary with all the vehemence at his command. He took up the formation of the steel corporation step by step. "No one has been harmed in the organization of the Steel Trust," he averred, "neither consumer, nor competitor." He sketched the history of Steel, pointing to the safety of its bonds and the high rating of its stock as evidence of investor confidence. He painted the dark picture of unbridled competition that had preceded the formation of this company, and contrasted it with the subsequent stability. " A stability," he stated, "that had benefited all directly or indirectly interested in the steel industry. This court," he said, "is now asked to cut this great corporation into miserable fragments." Again and again he returned to the testimony, quoting page after page, and citing example after example, with a familiarity that astounded the crowded courtroom. "The Government," he added, speaking in a low voice, "has indeed provided little bits of evidence—instances and events that can be cited in the story of every business—but it has ignored the great mass of testimony." He paused to place his hand upon the huge pile of notes and exhibits

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on the desk beside him. Then he turned to specific violations of the trust act contained in the petition, and one by one showed how the testimony failed to substantiate the averments. He took up the question of interlocking directors, and drove home his contention that when suit was instituted in 1911 there was no prohibition of this kind, and that the set-up of the steel directorate was entirely lawful. He launched into a discussion of Tennessee Coal and Iron. He quoted the writings as well as the testimony of Theodore Roosevelt, who as President was the prime mover in the steps taken to allay the panic of 1907. He showed clearly that the transaction had been made with his studied approval. Citing other evidence, he chided the Government for having brought up the entire episode. "They have dug into the past, and have sought to bolster this creaking structure of evidence by a palpable misinterpretation of recorded history." He compared these tactics to the mere abuse injected by lawyers conscious of the weakness of their case. For the next three days the headlines and inner columns carried the story of the steel suit. The Allies were advancing in Flanders Field, and news of the war featured the front pages. Richard Harding Davis was just back from Europe with a vivid story of the devastation of France and Belgium. In the New York Times Johnson's argument was headed "Predicts Trade War for World Control. Steel counsel argues disintegration of corporation would hurt America. Only pygmies left to fight. He sees a great commercial conflict coming after war, with Germany as aggressor. John G. Johnson summed up for defense in two-hour speech." Mr. Johnson assailed the dumping charges made against his client. He averred that only surplus products were sold abroad at cheaper prices. "Who was harmed thereby," he asked. "Mills have been kept running, and men have been kept at steady employment. These sales have helped to maintain prices at home." He further asked, "Who is going to buy the surplus with the Government overstocked? The Department of Justice might furnish an inventor who should reduce steel to a jelly and cover it with a delicious cream sauce, and then we might eat it, and the country will thus absorb the surplus steel products." Johnson was playing in his home town, and the local papers had a field day in reporting his performance. But even the conservative Bulletin could refer to his client only as "the combine": John G. Johnson, as chief of defending counsel in dissolution suit against the United States Steel Corporation, attacked the whole spirit of recent trust prosecutions, volleyed logic, law, sarcasm and plain rage at the Government prosecutors. It was one of Mr. Johnson's few recent appearances in court. His [261]

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73 years seemed to be a help rather than a hindrance to him. He talked the combine lawyers to new hope, the Court to keen attention and a vast audience of law students and lawyers to hypnotic admiration. It was when he shot his hand into the Sherman Law and apparently found a new and vital restriction that the lawyers in court whispered one to the other that the king still lived. This contention based upon the most recent Supreme Court decisions in trust cases is that conviction may no longer be entered because of the purchase of competing companies or on efforts to ease some of the terrific stress of free competition. On the other hand, the lawyer argued that actual restraint of trade must be shown as a consequent development. This plea, from the legal view, is regarded as the master stroke and the whole keystone of the defense. The steel combine seems to have no trouble in proving that it certainly increased the steel trade to tremendous proportions. Johnson closed his plea at noon, and Jacob M. Dickinson, former Secretary of War, and Special Assistant Attorney-General, began the final argument for the Government. During his talk Lindabury, one of the Steel Trust counsel, frequently leaped up like a jack-in-the-box and interrupted the argument with his own comment. Finally Dickinson became tired of this. He told a pointed story: There was a farmer who had a mule which kicked so much that the farmer feared it might someday kick itself to death. One day, while the farmer was riding on the mule, it began to kick fiercely, and happened to get its foot caught in the stirrup. The farmer thereupon said, "If you're coming up, I'm getting off." Of course Lindabury got the point and stayed down for the rest of the argument. Outside of the financial and metropolitan papers there was little notice of the greatest effort of the lawyer's life. The news columns and the minds of men were taken up with more immediate events. The impact of the tidal wave of gray that had swept over Belgium and Northern France had repercussions in heated clashes, as propagandists for the belligerents met head on. German agents and apologists were expounding the Kaiser's cause to an America that read headlines only. On the domestic front, the President's "neutrality even in thought" speech received little attention, and the Johnson warning even less. The decision of the court was a victory for Johnson and his associates, among whom was Joseph H. Choate. Despite the rising opposition to entrenched interests, with Democratic emphasis on the "new freedom" and the decentralization of the "money power," the judges refused to unscramble the Steel Corporation. The opinion of Judge Buffington covered nearly 150 pages. [262]

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"The subject matter of the litigation," it began, "is of such magnitude and complexity, and the record is of such size, that the effort to set bounds to the discussion has not been easy." The Court differentiated the Keystone Watch and the Powder Trust cases, in which the defendants had been adjudged guilty of monopolistic tactics. It also referred to the Standard Oil and Tobacco Trust cases, emphasizing the oppressive conduct of the defendants in each of those cases. It spoke of the history of the American Tobacco Company as replete with acts tending to drive competitors out of business, of ruthless price wars and trade conflicts, whose sole purpose was to injure others. It emphasized the buying up of plants, which were immediately dismantled, merely to eliminate competition. Johnson had been counsel for three of the corporations named in the four indictments. The court reviewed the entire history of the steel industry, and the voluminous data which the defense had submitted. There was a long history of each of the competitors of the United States Steel Corporation —Bethlehem Steel, Youngstown Sheet and Tube, Republic Steel—and to indicate the absence of monopoly, an astute observation that Schwab, who had been prominent in the formation of Big Steel, had left it to form the Bethlehem Company. There was a further review of the many companies that had been purchased by the defendant, and a long discussion of prices and price policies and the progressive growth in the quality of steel products. More than two hundred customers had been summoned to testify, and nearly one hundred executives of competing companies had added their bit to the thirty-odd volumes from which the opinion cited paragraph and page. The long history of steel-making from the early seventies, the bitter saga of competition under the Carnegie leadership, and the effort of Gary to end this warfare, were covered with ample citation of statistics and price trends. Johnson's emphasis upon foreign trade had not been in vain. The judicial opinion went outside the record into the general literature of the steel industry. It showed the inability of the old units and even of Carnegie Steel to override the tariffs of Germany, France, Russia, Austria, and Italy, or to compete successfully in the few markets available. It showed that English and German producers were aided by banking and government cooperation, aimed to bar American companies. After pointing out that the defendant had tripled its foreign trade in spite of these difficulties, the opinion averred that to use the Sherman Act to disrupt this trade would make the act itself a restraint of commerce. Integration of the steel industry—its necessity, and the specific steps taken to achieve it—was studied. In connection with the acquisition [263 ]

JOHN G. JOHNSON of the Tennessee Coal & Iron Company, the letter of President Roosevelt to Attorney-General Bonaparte (November 4, 1907), put into evidence by Johnson, was quoted. The evolution of iron and steel—through the Bessemer process to open hearth smelting, and finally to smelting by electricity—passed in calm review. The Judge paid his respects to Standard Oil and the scope of the Supreme Court opinion in that case. He emphasized that that company had destroyed the potentiality of competition, and fostered a perennial violation of the Anti-Trust Act. Upon the whole record—the quoted words and the cited p a r a g r a p h s of representative steel men f r o m allied and competing companies, of customers, and of recognized experts and analysts—he concluded that while certain practices of the company had been h a r m f u l , they had been largely discontinued. That the defendant controlled less than fifty percent of the industry, and that its influence was diminishing; that no monopoly had been established, a n d that in the main its policies had been fair to competitors and customers. It was averred that "where the Constitution of the United States conferred on Congress the right to regulate commerce with foreign nations and among the several states, its p u r p o s e was not to fetter, but to f u r t h e r and foster trade." That one of the f u n d a m e n t a l purposes of the Sherman Act—as indicated by its own title—"was to protect, not destroy rights of property." A concurring opinion emphasized the illegality of the Gary dinners, the informal discussions of price policies and tacit agreements. All f o u r judges, in reviewing the formation of the company and the parts played by Morgan, Schwab, Carnegie, and Gary, pointed to its original unlawful purpose of controlling the entire industry, but held that the intent to monopolize was not sufficient, where monopoly had not been brought about. The decision was hailed generally as a constructive step for industry and the nation. Not a few editorials expressed the belief that the suit, born of a political feud, had none the less cleared the atmosphere, and given the signal to American business for full speed ahead. Yet the final test still lay ahead. The last word still rested with the highest court in Washington. Johnson was not sanguine of the eventual result; in several talks with his intimates he did not express confidence. Nearly three years were to elapse before the case came up in the Supreme Court. In that period the war continued with the endless attrition of the Western Front, and the alternation of victory and disaster in the East and at Gallipoli. New names, new places, new towns crept into the headlines. Though Johnson was not destined to share in the final triumph, the groundwork for the final arguments and even for the Supreme Court opinion had been mapped out in the lower court. [264]

STEEL CORPORATION The conflict in Europe had brought a rude awakening from a decade of wistful reverie. The carefree adolescence of America had come to an end. In the new world of conflict, of schrecklichkeit and blitzkrieg, of coordinated thrusts of arms and men and industries, open competition in essential spheres did not measure up to the new realities. In the armed truce, falsely labeled peace, factories and raw materials had to be marshaled to peak efficiency. Even more was needed. The Government could not merely umpire the industrial conflict of domestic producers: active aid and cooperation were needed. The emphasis of Johnson from the Knight case to the Steel case was upon efficiency and coordination in production and distribution. He saw American industry competing in the markets of the world. He saw the domestic arena as the testing ground for the most effective companies. He saw business as a kind of warfare, in which you could prescribe rules, but from which you could not eliminate two-fisted slugging and hard plunging. He saw the baiting of the most powerful units as a kind of national hara kiri, dooming our nation to a backward place in the world struggle for trade and markets. Fortunately new forces arose to put into effect the Johnson view, and to prepare the country for the totalitarian world of the 1930's. New legislation made possible the integration of telephone, gas, and electric services. The motor industry, one of our greatest monopolies, escaped the cramping hands of federal control. Under General Motors, a dozen leading motor manufacturers were combined into a single great company. Little opposition arose to this consolidation, though it spelled extinction for many small producers. The existence of the Ford Company eliminated fear of a complete monopoly, and the actual results have not been detrimental to the consumer. In the critical days after the collapse of the French Empire, the coordinated power of General Motors was as great an asset to national defense as the dispersion of the air industry was a weakness. Apart from war, it was recognized that the mobilization of national forces and the girding of all powers in great cartels made the old order definitely passé. A more unified and rigid mobilization of industry became the prerequisite of survival in the new world of 1941. The final approval of the Supreme Court was given on March 1, 1920. Justice McKenna stated boldly that mere size did not render the corporation unlawful. The Government spokesmen had admitted the importance of a powerful company in the foreign markets, and had offered to separate the foreign business in a special corporation to be formed under the Webb Act. Of this the court had said : We do not see how United States Steel can be a beneficent instrumentality in the trade of the world that ought to be preserved, and an [265]

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evil instrumentality in the trade of the United States that ought to be destroyed. It paid its respects to Standard Oil and American Tobacco in these terms: In the Tobacco Case, as in the Standard Oil Case, the Court had to decide that a persistent and systematic lawbreaker masquerading under legal forms, not only had to be stripped of its disguises, but arrested in its illegality. The highest court finally voiced the belief—which was to be reiterated in many forms during the next decade—that the United States was a billion-dollar country, and that it could no longer go back to the old days. That the new giants of business were here to stay; they had to be regulated and controlled. They could not be destroyed without destroying the power of America in peace and war. Johnson had fought and won his case upon these broad lines. He had represented many corporations which had been called before the bar of the court. Some of his clients had been adjudged guilty of unfair and illegal trade practices. Others, like the Steel Corporation, had survived the test. The ordeal these cases imposed upon the courts was exhausting. To evaluate the work of all concerned, to grasp their significance in the life of the republic, requires something more than a familiarity with headlines and results. To indulge in time-honored legends, to give way to hoary prejudices nurtured by the words "corporation" and "trust," is to shut one's eyes to a critical chapter of national history. It is to lose all perspective of the vigor of our economic life and the role of great companies through which business and industry operate. It is to travel the world of a past age, to ignore the efforts of the courts to cope with the increasing complexity of modern life, and the work of the legal profession in presenting these issues and problems. In the Steel case a vigorous dissent by Justice Day, concurred in by Pitney and Clarke, would have committed America to a different course of action in dealing with growing industry. They found illegality in the original over-capitalization of the Steel Corporation, and in the vast sums set aside for promotion expenses. They saw a menace in an aggregate value of nearly two billion dollars, and an average cash balance of seventy-five million, which exceeded the capital of many of its competitors. They would have dissolved the company in view of the originally unlawful intent of its organizers. Through the volumes of evidence and the extended court opinions, one glimpses the magnitude of the work Johnson was doing. Yet other cases in the federal courts were demanding his attention, other national problems came into his office for his study and opinion. The new Federal

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STEEL CORPORATION Reserve Act had raised many questions, and the Association of T r u s t Companies had invoked his services to determine the constitutionality of certain portions of that Act. E a c h day additional cases called f o r scrutiny. Nor was the daily practice of local matters slighted. J o h n s o n was no longer active as b e f o r e in the lower courts, but he still argued appeals, presenting each case as if it alone occupied his attention. However, it would be a mistake to couple J o h n s o n with currents in the economic life of the nation. H e represented clients, not classes; he pleaded cases, not causes. His task was restricted to the legal presentation of these issues. In his office were innumerable suits, and he was on all sides of many questions. Even the perspective of his closest friends was distorted by the i m p o r t a n c e of an occasional case. Carson described him as the representative of legal conservatism against the fierce impulses of a progressive era. Y e t this portrayed only one side of the lawyer, who saw clearly the new f o r m s of national and international life and competition.

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XXVI

An Arch-Monopolist Grows Old

T

_|_HE meeting of the Pennsylvania Bar Association at Cape May during the late June days of 1913 was marked by an address of John G. Johnson. His talk was restricted to his own recollections of the bench and bar of his city, and contained many tributes to lawyers and judges who had passed on. It was markjed by a deep sincerity and quiet humor. The opening sentence reflected the turn that his thoughts were taking: To those who have nearly reached the last turning of life's highway, beyond which lies the end, nothing is more saddening or chastening, than to recall those infinitely more able, in whose companionship some or much of the earlier journeys were made—those whose names once in every mouth, are now forgotten. There was the further lament at the ephemeral character of the fame of a great lawyer, and the fleeting recollections of his triumphs. The two-lined caption of the address revealed a similar mood: "The good knights are dust, and their good swords are rust." There was something more than the quiet dignity of a recognized leader. Throughout was a studied restraint—keen observations spiced with witty anecdote. He spoke of the early days in the late fifties, when "trials were halted while counsel took snuff, or sharpened their quill pens." He recalled the tribulations of lawyers when the labor of writing out bills of exception in long hand was equal to the task of reconciling judge and counsel upon the correctness of evidence. He paid his respects to the ancient delays of the law, and the efforts of Judge Sharswood to eliminate them. "It was not in his court," he commented, "that an application for an injunction against the production of a play by a company, billed to spend a week in this city, wa9 decided after many of the actors had gone to their grave; the decision, however, being one of our leading cases." He told the story of the lawyer who had met questions from the bench with a statement, "If your Honor only knew how your questions embarrass me, you would not put [268]

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them." " O f course," Johnson went on to say, " H e was troubled no more, —at least not until the decision came." There was an apt description of one judge, as given by an unsuccessful practitioner in his courtroom: "Judge! Every time he put on his hat, he changed the shape of his h e a d ! " A full report of the address was reprinted in all the local papers. The Public Ledger devoted two full pages to it, garnishing the printed columns with ten pictures of lawyers and judges. The chatty, reminiscent style showed a mellow Johnson, upon whom age had crept imperceptibly. Yet the glimpse backward was transient. Mind and heart were still centered upon the immediate tasks of the crowded present. After his battle for Big Steel, much of his work, in the public mind, had to be an anti-climax. Cases of pith and moment which might have assured another's reputation were lost in the perspective of litigation involving the essential industries of the country. But the national fame which he had achieved was a minor development in his career as a Philadelphia lawyer. Even the tributes that had been paid to him by the press throughout the country—instanced by full page articles hailing him as the foremost lawyer of his time—merely confirmed what his townsmen had always known. There was indeed a satisfying warmth in the general recognition of the local champion; the glow came not from the confirmation of the accepted fact, but from the joy that the rest of the country could also share in the benefits of Esquire Johnson's great talent. In his own city Johnson was a local idol, the patron saint of the bar, and an unfailing adviser. Here he was also a legend and a tradition. Innumerable stories circulated about him, but the real scope of his work was only dimly perceived. It was a characteristic ingredient of his services that the average client who paid five or twenty-five dollars for essential and frequently important work should obtain no awareness of the great issues that were occupying the lawyer's attention. His reticence was the usual and proper professional attitude; the atmosphere of his office—the homely, matter-of-fact spirit that pervaded its furnishings and its routine—was highly exceptional. To some, his complete indifference to public honors and public notice, and to the usual trappings of success, stamped him as "queer" and eccentric. His wider recognition as the leader of the American Bar was associated with his representation of famous and even notorious figures in finance and industry. Lawyers and judges respected his learning and forcefulness. But laymen, the country over, adjudged the " b i g " lawyer only by his representation of big interests, by the magnitude of the issues involved, by the moneys at stake. Not for them the profundity of legal argument, the excellence of a brief or the superb conduct of a

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JOHN G. JOHNSON trial. A lawyer w a s great only if h i s n a m e w a s c o u p l e d with millions and with s u p e r s m a r t n e s s . The contemplation of vast responsibilities a n d f e a t s of legal acumen h a d a less wholesome aspect. T h e very m i l l i o n s that a l o n e c h a l l e n g e d general attention aroused s u s p i c i o n a n d distrust. A s a lawyer who devoted his life to the law, a c c e p t i n g the c a s e s of all c l a s s e s , J o h n s o n offered little g l a m o u r for the p u b l i c eye. A s the lawyer f o r M o r g a n and Rockefeller, he b e c a m e the s u b j e c t of p r e s s comment, a figure to catch the imagination of y o u n g a n d old. B u t h e a l s o b e c a m e , to the s a m e eyes, the advocate of p r i v i l e g e — t h e m o u t h p i e c e of " m a l e f a c t o r s of great wealth." A l l of which w a s strikingly f a l s e a n d eminently u n j u s t . He h a d indeed spoken for great industrialists c h a r g e d with m o n o p o l y ; in his long life he h a d also p l e a d e d f o r t h o u s a n d s of a v e r a g e f o l k , and f o r m i l l i o n s who h a d been affected in a h u n d r e d w a y s by the m a n y cases in which his services were requisitioned. H i s p r a c t i c e w a s so vast and so varied that even the term " c o r p o r a t i o n l a w y e r " w a s less a r e p r o a c h than a complete misstatement. T h e Government which h a d taken action a g a i n s t a few of his clients might m o r e p r o p e r l y have indicted the lawyer himself f o r m a i n t a i n i n g within his a m p l e girth a l e g a l m o n o p o l y . T h e counts of such a bill might well have followed the lines of m a n y to which h e h a d m a d e answer. T h e c h a r g e s of m o n o p o l y and restraint of t r a d e were easy of p r o o f , and buttressed by prima facie evidence. H i s office w a s a clearing house for the important litigation of the country, a n d h e a d q u a r t e r s of much of the legal business of his city. C h a r g e s of price-cutting, a n d even of disrupting the flow of fat fees, were w i d e s p r e a d . T h e r e m i g h t have been added a count against his frequent habit of d i s c o u r a g i n g litigation. T h e complaint might well have been c a p p e d with the s w e e p i n g averment that his office constituted unfair competition with the c o u r t s themselves. T h e testimony to s u p p o r t such a p r o c e e d i n g u n d e r the S h e r m a n Act w a s clear. S o m a n y of the cases in the S u p r e m e C o u r t of P e n n s y l v a n i a were a r g u e d by him that the clerk of that court m a d e it a practice to l u m p the " J o h n s o n c a s e s . " In h a l f a dozen to a score of c a s e s new opponents took their seats at the counsel table, while J o h n s o n r e m a i n e d steadfast in his, a r g u i n g each new c a s e a s it w a s reached, s o m e w h a t like a pugilist taking on all comers. T h e s p e c t a c l e w a s a l w a y s one to excite wonder a m o n g the b a r . At his own table is the bulky f o r m of J o h n s o n , h i s h e a d bent over his opponents' p a p e r b o o k of argument. T h e justices a r e now r e a d y and nod to him. H e rises, s p e a k s slowly f o r a few m i n u t e s ; the tempo of his talk increases until he reaches the c r u x of his c a s e . A justice asks a question: the c o u n s e l o r a n s w e r s in c l i p p e d sentences. T h e j u d g e s whisper to each other. T h e y u n d e r s t a n d the issue a n d nod

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to the attorney on the other side. Johnson takes his seat, picks up another brief and begins turning the pages rapidly. He is studying the next case, but his ears are attuned to his opponent in the case before the court. A particularly flagrant, but exceedingly rare misstatement may bring him to his feet in heated objection. Usually he contents himself with silence, or occasionally with a few remarks about the argument that has ended. He may answer a query from one of the judges. Again the Chief Justice nods. The next case is to be heard. Johnson rises to his feet again. And so through the successive cases he picks up the thread of argument, concentrating upon new problems, casting off the old. Consolidating the Johnson cases was only one of the many forms in which the courts and judges came to adjust themselves to the special needs of the arch-monopolist who was a quasi-public counsel, and whose office also functioned as a swiftly moving court. In the Supreme Court of the United States it became the habit for the justices to send a messenger to find Johnson at the Corcoran Galleries, where he spent his hours between cases. In the Philadelphia and state courts, the judicial machinery yielded gracefully to the demands of an all-embracing practice. The older lawyers came to know and respect his routine and habits. The younger opponents might be nonplused, but were soon put at ease by the judges. In the first case a young attorney handled against Johnson, the latter made the first argument before Judge Fell. As soon as he concluded his plea, he left the courtroom, not intending to be discourteous, but because he had to try another case. Judge Fell said to the young lawyer, "Do not be disturbed." It was judicial acceptance of as tight a legal monopoly as the bar had ever witnessed. Two factors precluded federal action to loosen the Johnson grip upon an important, if by no means universally accredited, industry. The dual nature of conference and litigation prevented him from establishing a complete trade monopoly. In the normal course he could act only for one side in each controversy. Even in this respect his retention in many cases merited scrutiny. The vigorous character of Johnson's advocacy, the almost explosive quality with which he could invest his entrance into an intricate case—whether it involved a financial tangle or a complex estate issue—made his retention as much a defensive as an offensive move. The number of cases in which his services were invoked, in order that he might not appear in the opposing line-up, increased with his reputation and the years. A second factor mitigated the rigors of the lawyer's monopoly. It [271]

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was a "trust" created largely by his own competitors. His own brethren at the bar were the chief accomplices; from other lawyers stumped by knotty problems came a majority of his cases. To these he not only extended every professional courtesy, but went far beyond mere prudence or policy to battle on as long as there was the faintest flicker of hope. So it came about that Johnson, who had long been legend, drew to himself all the flavor of a great tradition. The place he came to occupy in the hearts as well as the minds of his fellow citizens was unique. Small business men, whom he had represented in their early struggles, blossomed into great industrialists and merchant princes. A corner grocery—client of his early days—grew to a nationwide business founded upon the happy concoction of the ice cream soda. He had guided the modest Gimbel store through its expansion to a local emporium, and into greater magnitude in New York and Pittsburgh. Young girls and boys whom he had served even before they were born, came to him for advice as they grew to maturity. He found himself consulted by the sons and daughters, and even the grandchildren, of his first clients. He was associated with and opposed by two new generations of lawyers, many of whom were descended from associates and adversaries of earlier days. The stories about him revealed some strange methods of practice. A merchant about to build a large store on Chestnut Street had consulted him about the possibility of an injunction by his neighbor who claimed an easement of light under his deed. The lawyer examined the various deeds with great care. "You can go right ahead," he advised. The building gradually took form. The adjoining owner, who had carried his point for many years, was astonished, and began legal proceedings at once. He scored a victory in the first bout. The case was carried to the highest court. "We are right," Johnson insisted, as his client wavered at the thought of the loss he might sustain. The case was argued before the Supreme Court. After a prolonged interval a divided court handed down its opinion. The judgment of the lower court was affirmed. Johnson was disappointed, but by no means perturbed. He was too good a soldier not to bow gracefully to the studied decision of the court. He called his client to his office. "The Supreme Court has decided against us," he explained. "I believe the Court has erred, but their decision is now the law." The client heard the news with grave countenance. "Have you an accurate idea of how much this building has cost you to date?" continued Johnson. The client mentioned a sum well over a hundred thousand dollars. [272]

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The lawyer called his secretary into the office, and directed her to draw a cheque in the amount named. Signing the cheque, he handed it to the amazed client. Even the final perfection of a legal monopoly was gradually achieved by him. Among lawyers the custom grew up of having highly debated points decided by him; he thus exercised judicial functions. In short, this monopolist engaged in competition with the very courts in which he so often appeared. It was also a most unfair competition, for whereas justice was slow and costly, the product dispensed by his own office was speedy and inexpensive. The late Hampton L. Carson had been engaged in an important case involving the construction of a will. After prolonged discussion, he suggested to his opponent that they put the matter to Johnson for ultimate decision. The latter agreed readily. An impersonal statement of facts was made up, and forwarded to the arbiter. Little more than a week elapsed, and each of the lawyers received a memorandum decision. Carson proved to have shared the opinion of Johnson. The matter had been settled expeditiously, and to the complete satisfaction of both parties. The two lawyers, after a long interval, decided to remind their consultant of the little matter of a fee for his services. In due course, a letter was received in reply. The charge was twenty dollars! Acting in this capacity became an important function of the mature advocate. The modesty of his fees contributed in only a slight degree to the frequency with which fellow lawyers came to his office on such missions. They were attracted by the sureness of his opinions and the remarkable clarity with which they were rendered. They also enjoyed the spectacle of genius in action. Johnson never disappointed. Often he grasped the essentials in an instant, was able to refer to cases in point, and to recall similar cases in his own practice. Nor was the modesty of his charge to be wondered at, though it gave rise to the legend that he charged the lowest fees in Philadelphia and the highest in the country. Possibly he enjoyed the subtle flattery that was always entailed in such consultations, and liked the work in the same way as other men enjoyed hobbies or sports. "You know," he had once confided to a noted cricketer, whom he had watched in action, "you seem to get almost as much fun out of the game as I get in my office." By another story he reputedly told a young lawyer: "Sunday is a wonderful day to get some real work done in the office." A serious restraint was placed upon the normal flow of legal business by another Johnson role. In fact, this not only stifled competition, but placed a damper on litigation. The lawyer became a holding company, like the Northern Securities Corporation he had unsuccessfully sought [273]

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to keep alive against the clamor of an affrighted public. But neither the community nor an aroused profession took up arms against the Johnson office. By the time he was forty, the halo that surrounded him was visible to every part of growing Philadelphia. Business men might differ about matters of title, easements, the interpretation of a will, and the major and minor issues that feed the slowly moving assembly lines of litigation. But unless fury or bitterness had banished the last grain of common sense, one or even both of the parties to the controversy might be struck by a brilliant thought: "What's the use of getting into a costly law-suit. Let's put it up to John G. J o h n s o n ! " "That's good enough for me," would be the usual response. "Whatever he says goes." The next scene was enacted in the office of the lawyer. Both sides were anxious to present the facts—not with the detachment of a neutral, but with the distortion of a non-belligerent. Sometimes the answer was forthcoming immediately. Frequently a week or two would elapse before a decision would be rendered and full opinion given. One of these episodes—related by William B. Craig, for many years editor of the Evening Bulletin—concerned a young clerk of a large coal company, who used the effectiveness of a Johnson opinion to settle a long-standing dispute between his employer and its leading competitor. Title to coal lands in Central Pennsylvania was involved, and correspondence between the lawyers for both sides had gone back and forth for years. Johnson's charge for his memorandum that concluded the matter was $50, which the young man, who feared he had incurred a bill that would run into thousands, was glad to pay. That the resourceful clerk later became president of the company added the final flavor to the story. The second count of the indictment against Johnson would have failed also. The hold he maintained upon litigation, and the disturbing influence he exerted on the even flow of clients into regular channels, were not of his own making. The scramble to requisition his services took many forms. In not a few cases both parties to the controversy were current clients of his office, or had retained him at some time in the past. The results of such a situation were varied. Both litigants might visit his office, and a simple suggestion from the lawyer might bring about an equitable settlement. At other times one or even both sides were directed to find another lawyer. The sequence of events in the celebrated Carnegie-Frick controversy was not exceptional. It was thus indicated in the scholarly paragraphs of the Winkler and Harvey biographies.

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Wrote Winkler: By now both sides had retained counsel. The stage was set for trial of the most remarkable suit of its sort ever instituted in America. Risking loss of the fattest retainer in the state, Knox and Reed of the Carnegie Company's lawyers refused to appear against Frick. Carnegie made frantic efforts to obtain the famous John G. Johnson. Frick got him first. Johnson's associates were D. T. Watson and Willis F. McCook. Carnegie's lawyers were George Tucker Bispham, Richard C. Dale, Clarence Burleigh and the firm of Dalzell, Scott and Gordon. The other angle to the controversy was supplied by Harvey: There had been a sharp competition for the services of John G. Johnson, Esquire, the foremost lawyer of the country, as senior counsel, but Mr. Frick's retainer was the first to arrive. Charges of price-cutting represented another serious accusation but, while there was a low murmur of disapproval from many lawyers, the public found evident relish in the situation. In many instances the modest scale of Johnson's charges was disconcerting to the profession. Many a prominent practitioner had to modify his own bills in the light of Johnson's charge for a similar service. An insurance expert who valued his written opinion at $5,000 scaled his bill substantially when he learned that the dean of the profession was receiving $150 for a similar advisory letter. The same situation arose when the counsel for the Pittsburgh Coal Company secured advices on a "deal" involving tens of millions of dollars. Johnson and David T. Watson, the "Johnson of Pittsburgh," were consulted. Both turned in short written opinions. Watson's bill was $5,000 and was promptly paid. Johnson refused to take more than $250. But Johnson's deep solicitude for his client's purse was matched by an open-handed generosity with his own. Where he was associated with younger men, he accepted little or even nothing for himself in his effort to increase the amount paid to the younger lawyer. His charges to the profession were even lower than his direct fees from clients. All in all the public definitely approved the lawyer's practice of fitting the fee not only to the case, but to the client. The protests from the bar were not only mild, but infrequent. By and large, the profession cast its vote for the Johnson system by going regularly to his office for aid and comfort. The stirring events of the early summer of 1914 found Johnson in Europe. As the clouds of war were gathering, he traveled from art gallery to museum, confident that hostilities would be averted. His mind could not envisage a lawless world torn by the conflicts of the jungle. In Berlin and Cuxhaven and Munich, he repeated many times to the young office boy who accompanied him on his travels: "There can't be a war."

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But as war came, he made his way back to Paris, and thence to Genoa. Here he found a large number of Americans stranded, with no prospects of obtaining passage home. In this emergency, he chartered a special steamer by cable, using his influence with a great railroad to secure prompt action. The experience left its mark upon him. The world he had known so long was passing. A new order was in the making. He saw the coming changes clearly; his mind grasped the implications invisible to most of his countrymen. Thereafter, Johnson was very much alone, surrounded in his home only by retainers who had been with him for many years, at the office by able young men who had joined his staff. He had also his pictures and his work, the first ever offering new beauty and new interest. But most vital there was his work. It was comforting that in his long life he had not husbanded his strength, or stored up treasure to be doled out in a lonely old age. Friends were busy, or ill, or gone, or separated by pride and disillusion—a precarious refuge in these later years. Even his children were taken up with their own cares and pursuits, the quests of their own generation. From Colonel Morrell came affectionate letters and comforting visits; but he too was growing old, and his health was failing. How good to know that ever were those who leaned upon him, who needed the help of his judgment and experience, who came from near and far to seek him out. In the evening of life, he still had a part to play in the rushing world; he was still a useful cog in the intricate wheels of society. Near the end, even as at the beginning, there were tasks for him to accomplish. From the curtained windows of the club, from the soft chairs framed in the vistas of the League, vacant faces peered out upon the passing scene, idle spectators of the vital stream of life. For Johnson, striding purposefully toward his office, the world still beckoned; each day unfolded a new problem. In his workshop the chairs and hard benches harbored the waiting callers—a business man perplexed, a lady newly widowed, an industrialist enmeshed in the clashing machinery of industry, a young law student seeking guidance in the law, ready to embark on the course that for the lawyer was nearly at end. The next summer was spent in a tour of the great Northwest. He visited Canada and viewed the Rocky Mountains. To friends he confided his satisfaction in contemplating the grandeur of his own country after so many trips to Europe in a happier day. Through the fall he watched the spread of the great war as it engulfed Asia and Africa. His own work was as pressing as ever, but under the impact of world events the importance of courtroom battle had waned. Principally he was taken up with consultations. Only in critical cases did he lend his own presence to the trial in court.

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AN ARCH-MONOPOLIST GROWS OLD F r e q u e n t l y old friends, the clients of many a decade, now grown old, c a m e to his office f o r a final service—the drawing of a Will. T h e minds of lawyer and client turned f r o m worldly thoughts on such occasions. " A n d f o r masses for my soul I leave the sum of $ 5 , 0 0 0 , " instructs the client. T h e old lawyer is silent, and seems lost in reflection. His visitor feels the need of an explanatory note. " I ' m j u s t as dubious as yourself, Mr. J o h n s o n , " he adds, " b u t I ' m not taking any c h a n c e s . " A n d so through the days of that last s p r i n g — t h a t grew shorter even as they l e n g t h e n e d — c o n f e r e n c e follows conference, all semi-automatic now. T h e darkness comes, and then back to his home and his pictures. T h e table is set f o r four, always four, though most often the lawyer dines a l o n e — i n dinner coat, the b r o a d expanse of white matching the spotless napery of the table. T o n i g h t there is an old friend, alone like himself. T h e r e is wine of rare vintage, but the host does not partake. A n d then small talk as precious hours go by, of rare moments of legal battle, of new rulings, of old decisions overturned, of new leaders at the bar. " T h e B a r is pretty thin n o w — p r e t t y t h i n , " comments the old counselor. T h e r e is talk of the clouds that have gathered f r o m abroad, new forces turning on end the world that was, the old secure world of the old century. T h e two men part silently; another day, another night, another week, a younger man is guest—yet an old, valued friend. T h e day has been full of l a b o r and effort; a case of great moment is pending. A powerful f a m i l y is at w a r — u n b o u n d e d ambition that seemed to hold the key to the wider conflict of that hour. T h e old lawyer is shaken by the tragedy. T o m o r r o w he will have to go to W i l m i n g t o n to the court there—thirty-five miles away. He is coughing uneasily. T h e younger man is disturbed by the cough. " Y o u must not g o , " he cautions. B u t the older lawyer will not be swerved. He will be at his post. He will not spare h i m s e l f ; he has never spared himself. His great body has responded to every demand of an iron will. In that year he h a d participated in ten cases in the United States Supreme Court, nine in the lower federal courts, twenty in the Pennsylvania Supreme Court, and four in the Superior Court. T h e r e had been no let-up in his consultations and written opinions. T h e future still seemed to stretch b e f o r e him, full of endless battles and essential service. T h e time passes q u i c k l y ; he must retire early. T h e next day will see the climax of what the newspapers are calling " T h e Fifty-seven M i l l i o n Dollar du P o n t C a s e . " Y e t the lawyer muses on his work and his career.

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" I ' m still fighting," he confides, "but I do not feel I carry the punch I used to." The younger man is incredulous. He recalls the triumphs of the last few months. "No, it's no use deceiving oneself. The courts have changed; they look at things differently now. There's a new spirit in the air, my voice doesn't carry the weight it used to any more. Everything changes—and we just can't keep step with the procession." The battle in the district court taxed the energy of a vigorous man of seventy-six. As counsel for Philip S. du Pont, he waged an uphill fight against Pierre and T. Coleman du Pont. The stakes included the ownership of the fifty-seven million dollar du Pont Powder Corporation. The next day the lawyer waited at his office for the decision of the trial judge. Though his cold seemed to grow worse, he was heartened by the news that he had won his case.* On the following day he obeyed the importunities of his associates and brother Alfred, and called in the family doctor. The latter had been attending him for a year for intermittent attacks of heart disease, and advised him to remain in bed. At eight o'clock the next evening the doctor again visited him. He seemed in a normal condition, but his cold had become aggravated. At two o'clock the following morning, the lawyer took the medicine that had been prescribed, and appeared to be resting comfortably. Turning to the nurse with a smile, he said, "Good night. I am going to sleep now." When she returned an hour later, he was dead. * After his death the Supreme Court reversed.

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XXVII

A Man to Remember O n THAT troubled mid-April day the American Bar Association was holding its annual meeting at Philadelphia. Its leading officers were assembled in a local court room when the news came that John G. Johnson had passed away a few hours before. Hampton L. Carson voiced the first reaction of his associates: This is not a time for eulogy. He has fallen in the fullness of his strength without any suspicion of an hour of weakness. There was indeed a certain incongruity in the thought of one so dynamic now lying inert. Death seemed a wanton insult to a personality so strong and vigorous that it had viewed the slightest weakness with something akin to shame. The hour was not propitious for extended eulogy of one who had given his life to the sanctity of the legal process. The World War, raging in three-fourths of the world, had spanned the Atlantic and engulfed the Western Continent. The morning papers announced the severance of diplomatic relations between Bolivia and Germany; a seven-billion-dollar war-revenue bill had reached the House of Representatives, and was passed unanimously. Optimistic reports of a British break-through on the Western Front vied with rumors of peace and unfounded reports of the illness of the Kaiser and his retreat to Holland. The accounts of the Eddystone explosion with its hundreds of dead and injured still filled the papers. The mind of America faced the prospect of immediate war. In France, Painleve, the Minister of War, sent an order to General Nivelle, the Commander-in-chief on the Western Front, to bolster the morale of his nation that threatened to follow Russia into defeat and chaos: . . . communicate to your troops the entry of the United States on the side of the Allies . . . point out to them the unequaled importance of the event, which causes the most pacific democracy in the world to abandon neutrality in order to defend law and liberty. . . . Please to make them understand that the moral help brought by the [279]

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United States is accompanied by material assistance, the weight of which in the scale will be decisive and assures to us more than ever the certainty of complete victory. In that hour, the tribute paid by the press to Johnson carried a special significance. In Philadelphia, where his leadership of the American Bar was a matter of fierce local pride, it was but natural that the Evening Telegraph should write of him as preeminent in law and in art. Johnson's unofficial position as lawyer of all the people of his own city, and as adviser of the city and state governments, was indicated in a single line: "The greatest matters affecting the city government were almost invariably submitted to him for decision." The headlines in the Public Ledger spoke of him as "Leader of the American Bar and the Foremost Lawyer of the Country—Universally honored and recognized as the greatest lawyer of the United States and its foremost art connoisseur and critic." The articles and editorials in the Record, Inquirer, Evening Bulletin, and other Philadelphia papers, were equally laudatory of the man and the lawyer. From lawyers, judges, men in public life came expressions of loss. Charles Evans Hughes, Philander C. Knox, Justice J. Hay Brown, and hundreds of other men in public life of every political hue and social stratum, hastened to pay a last word of respect to his character and achievements. Newspapers throughout the United States carried impressive obituaries and long editorials, emphasizing the lesson of his rise from poverty to the leadership of his profession. Telegrams and letters poured into his office from every part of the world, for the scope of his legal work had penetrated beyond the seven seas. The New York Herald spoke of his rise, without benefit of law school, to eminence at the bar, and in long columns repeated the legends of his long career. The acknowledgment of his actual leadership came with a pang from the press of New York. Said the New York Times: John G. Johnson, one of the leading corporation lawyers in the United States, and in the opinion of some well qualified judges, the greatest lawyer in the English speaking world, was probably less known to the general public in proportion to his importance than any other man in the United States. It noted that more than half a billion dollars had been invested on his recommendation; the columns of biography and anecdote flashed with touches of Johnsonian geniality and humor. "He fairly basked in obscurity," it stated, "and sought oblivion as far as the general public was concerned with a high measure of success." [280]

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With pointed paradox, it emphasized the striking extremes of his career—his simplicity and good nature, his bluff good humor and absence of arrogance or grandeur, his fees that were at the same time the highest in America and the lowest in Philadelphia, his ready acceptance of small cases, and his eagerness to champion the humblest client. It told—inaccurately—of his refusal to join the American Bar Association or any other club, and more correctly of his avoidance of reform movements and crusades. There was indeed a piquant analysis of the Johnson method and character: He had the freshness of the amateur, and even when recognized as a leader in his profession, and a man of great means and influence, he had continued the intensive practice of the law, not for fame or money, but for the fascination of the game. It spoke of his Northern Securities appeal as the finest argument ever heard in the Supreme Court, retold the stories of his remarkable memory, and his feat of having committed to memory as a schoolboy the entire works of Shakespeare. There was an interesting contrast between his methods and the work of Choate: His style was entirely free of polish or ornament—the polish which was so characteristic of Choate. He got hold of the real point at issue, and would not be turned aside from it. He fused it into a thunderbolt in the heat of his argument. A long editorial in the New York Times touched only upon a few highlights of his career: in restrained laudation it said: He was without an equal in his mastery of the intricacies of the law governing the organization and management of industrial and public service corporations, but his vast legal knowledge was not restricted to any one branch . . . His advice was sought by financiers, judges, and responsible managers of municipalities . . . Mr. Johnson was born of poor parents, and made good use of the opportunities American life offers to the industrious and competent. With no more than a high school education, he entered a law office in a humble capacity and developed his natural powers by persistent study and hard work . . . . . . his knowledge of law was scarcely greater than his knowledge of the fine arts. He lived and died among his pictures. . . . Its artistic worth, however, is of international repute. He was a remarkable man in his time and would have gained distinction in any era. A fine tribute was contained in an editorial which appeared in the North American two days later. The article was unsigned, and was captioned merely "John G. Johnson"; it was actually from the pen of James Gay Gordon, who had known him intimately.

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Several passages challenged attention. Some recorded a purely personal appraisal. The article stated that Johnson came from the plainest but healthiest American stock, and his ancestors on both sides were laborers—on the land, in the shop, at the bench. It continued: His lineage was demonstrated in the massive body and unbounded health. This was the only heritage he got from nature or ancestry, and was a blessed asset that made possible all that fame and achievement that he built upon it. . . . The law never knew a practitioner such as he who reached such a position of undisputed supremacy and yet as to whom it could not be said that his fame depended upon the development of some great quality, which distinguished him from all the others. In an age of specialism in all the sciences and industries, the law has not escaped the general trend, but the tendency never reached Johnson. As practitioner or consultant, he was concerned in cases in all the courts embracing all phases of our legal system. It was this universality of his practice which made him the great lawyer that he was. No client coming to him was ever turned away with the statement that he should go to someone else because Johnson had no knowledge of that branch of the law . . . He regarded the ordinary social amenities as obstacles to the constant and unremitting work which he knew to be necessary to great distinction in his profession. Hence, he had few or no associates, no cronies, no pals. His law office was not large and would seem puny compared with some of the legal establishments of New York. The door to his own room was constantly open . . . Most of his habits, even that of eating the noonday meal, were framed with the view to saving time by preventing its waste and filling every moment with some serious work. He was a practicing lawyer and he affected to be nothing else, but he carried the practice of the law to its sublimest heights, practically, theoretically, and morally . . . As far as a man of his eminence, engaged in the profession which he was, could live retired and obscure, Johnson so lived. He did not wish to hear his praises and would not tolerate encomiums upon himself. He knew how often such tributes fall from the lips of selfish flatterers or subtle knaves. His retirement was not an affectation; it was real. All that he could do to keep out of the public gaze and conversation he did. He refused to be pictured, and only those who had seen and identified the man, therefore, knew him, and he could walk the streets and seldom a head was turned in recognition of the great man who passed modestly with the moving throng. Public dinners, public speeches, public ceremonials— all these he avoided. He wished only to practice his loved profession, to be immersed in it every hour of the day that was possible, and to do his work with sincerity.

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Johnson never filled judicial station—he rejected it. He never discussed public questions—he refused to. He never wrote a legal treatise -—he would have thought it an evidence of vanity. Therefore, all that remains of him is the tradition, which, for many years, will be lovingly kept alive, of his supreme dominance in all the greatest qualifications of the lawyer—the lawyer of profound intellect and comprehensive attainment; the lawyer who kept his conscience clear and loved his sacred calling; the lawyer whom every advocate and every judge in the land today feels was the greatest of all. In all the tributes paid to Johnson there was an important omission. He was indeed held up as an example of professional success. But legends of smartness and cunning, traditions of adroitness and chicane were conspicuously absent. And, by his own estimate, he was not a "success"—if the word conveyed any meaning to him at all. "I have done nothing . . . nothing at all, to merit the interest of the public," he had said upon many requests for biographical data. The inquiry of Who's Who first found its way into his wastebasket, and was returned only after much prodding with the words "Corporation Lawyer"—aimed no doubt to close the book. The chief attractiveness of Johnson's personality stemmed from a wholesome vigor of mind and body. His contemporaries recorded the impression of one who lived generously and gave freely of himself. His simplicity contrasted strangely with the too frequent spectacle of inferiority unable to attain compensation even by conquering the world. The unbending habit of work seemed an affirmation that life was a cup to be filled, not a measure to be drained; in the words of Shaw, that one must pay heaven for every hour of happiness with a good spell of hard, unselfish work. There were many paradoxes in the life of Johnson. He was solely a lawyer, yet his office became the busiest and perhaps the highest court of his city and state. He was a hired advocate, but became a loved adviser. He was an academician in the law, who toiled without thought of fee, yet was bewildered by the shower of gold that rained upon him. He was the father confessor of party bosses and the confidant of money masters, yet enjoyed political power and financial freedom neither could attain. Johnson typified the best spirit of America. Possibly he represented a fleeting era of hardy growth—the exuberance of youth and the radiant strength of early manhood. In Philadelphia his spirit of achievement found its parallel in the work of other men—Lea the historian, Furness the commentator, Deaver the physician, Mitchell the neurologist, White the surgeon, Pennell the artist, and Conwell the educator. Johnson made more spacious and valuable the common life of his time. He imbued the

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JOHN G. JOHNSON men and women who came to him with a deep sense of their own individual worth. The stories of clients and associates stress the triple aspects of the Johnson personality. Of one who fostered and was a child of struggle, who used each man, not according to his desert, but after his own honor and dignity. Finally of a mind so direct, yet so profound, that it broke down all the barriers of caste and pride.

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XXVIII

A Legacy and an Art Heritage

into his home and office, the disposition of his art collection became a subject of quiet conjecture. Many believed that in view of the failure of his own city to erect an art gallery during his lifetime, the treasured canvases would go to the Metropolitan Museum of Art. An insight into the character and scope of the collection was given by the press. It was asserted that it contained splendid examples of many schools, representing almost every period from the fourteenth century to the twentieth. The majority of paintings were of high order, and the rest had an historical importance. In addition, the canvases had a rare unity. They related graphically the beginnings of painting, and its development into the modern era. They did not run to show pieces, but all had been carefully selected and many were noteworthy. At the time no comprehensive list was available, but the number was estimated at sixteen hundred. The lawyer had catalogued his gallery several years before, but there had been new acquisitions. All the great masters were represented. Italian, Flemish, Dutch, Spanish, modern French, early English and American artists were among the contributors. On the walls were striking canvases by Masolino, Lorenzetti, Titian, Van Dyck, Ruysdael, Rembrandt, Corot, Botticelli. The manner of their hanging, which had been a never-failing source of wonder to those who visited his home, was still in force. "A jocund old sea-rover of the old school rubbed shoulders with a Madonna of the early Italian Renaissance. The deeply impressive Crucifixion—the marvelous canvas of Guido Reni—reposed beside a battle scene and the carnage of a vivid Jacopa del Sellaio. The pastorals of the placid Troyon leaned against the awful storms from the inspired brush of Turner."* On the seventeenth of April, as war came to his country, the lawyer was laid to rest. The obsequies were private. The hour of the funeral had been fixed at the last moment. There were no pallbearers or representatives from the Philadelphia Club, or from the bench or bar. The * Public Ledger

(Philadelphia), April 16, 1917.

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JOHN G. JOHNSON lawyer had not been connected actively with any fraternal organization, and there was no ceremonial. A Methodist clergyman conducted a brief service at the home on South B r o a d Street. Only four persons attended —brother A l f r e d and his wife Carrie, and Colonel and Mrs. Morrell. Burial was in the Ivy Hill Cemetery in Germantown, in the family plot where reposed the bodies of his mother and brother William. The publication of the will, which was filed by Prichard, revealed provisions entirely in keeping with his character and temperament. They held a wider interest than that u s u a l l y accorded to the testament of a statesman or an industrialist. In d r a w i n g up their own wills, lawyers notoriously were either careless or prolix. Johnson expressed his wishes in a long but simple document dated J u n e 22, 1912, and an extensive codicil of J u l y 6, 1915. He provided modest bequests for his brother A l f r e d and for A l f r e d ' s wife; he established small annuities for old employees, and made adequate allowances f o r his son and daughters and their children. There were further provisions that precluded the flow of estate moneys into channels outside of legal securities; as in his life, he wanted no common-stock investments. There were clear directions against all d i s p l a y — w h i c h explained the funeral arrangements of the previous days. These included the injunction that "nothing a p p r o a c h i n g a monument was to be erected, but a plain low head and foot stone and coping, with nothing marked thereon except the date of my b i r t h — 4 A p r i l 1841—that of my death and my name." His house at 5 1 0 South B r o a d Street was to be a m u s e u m for his art collection. Both were bequeathed to the city of Philadelphia. There were additional instructions. " T h e leisure moments of my l i f e , " he wrote, " h a v e been spent in m a k i n g this collection. My h o p e h a s always been that it will be accepted by the City of P h i l a d e l p h i a upon the not onerous conditions I will impose. I have lived my life in this city. I want the collection to have its home here, but, if the conditions be not accepted, it must go elsewhere." The conditions were indeed simple. T h e collection was to be kept a s a whole at some central site, or at an accessible spot in F a i r m o u n t P a r k . H e cared nothing for architectural effect, but would prefer a building designed by one f a m i l i a r with the needs of an art gallery, so as properly to exhibit the paintings. Reference was m a d e to the K a i s e r Friedrich Museum at Berlin as typifying an excellent model, but these matters were left to the judgment of the executors. T h e conservation of the paintings was entrusted to the discretion of the curator. T h e residuary estate was given, after the expiration of the trusts, to the University of Pennsylvania. A number of questions d i d indeed arise as to the disposition of the

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A LEGACY AND AN ART HERITAGE collection. F o r m a n y years the n e a r l y thirteen hundred paintings remained at his h o m e on South B r o a d Street under such conditions as to make it difficult f o r the public to view them. Later they were removed to the Art Museum of the city, and there remained under the excellent supervision of Henri M a r c e a u . S o great, however, was the number of paintings that, in the space allotted, only a part of the collection could be exhibited at one time. T h i s was no drawback; a better appreciation of the several periods and many items was obtainable in this way. T h e South B r o a d mansion of limestone and brick underwent a number of transformations. T h e house, built by an artist and architect, F r a n c i s T . Sully, f o r a n u m b e r of years retained few traces of its former glory. T h e wide c i r c u l a r stairs mounting to the fourth floor, the hand rails covered in velvety plush, the ornate m a r b l e s and the fireplaces and paneled ceilings, the e l a b o r a t e walnut woodwork, were sole reminders of an earlier day, when art enthusiasts crowded its corridors, and growing children romped over its floors. T h e trustees had termed the splendid mansion a firetrap, in their anxiety to get the collection into a safe home. T h e house had been left in darkness, completely closed and boarded up until 1 9 2 2 . T h e r e a f t e r , for over a decade it had served as a public g a l l e r y f o r the exhibition of the pictures. But in m a n y centers artists, dealers, and connoisseurs remembered gratefully weekend visits to the h o s p i t a b l e mansion, and not a few recorded their pangs that they were to be n o more. In numerous art brochures these S u n d a y hours were recalled, when chosen groups of guests c a m e to the lawyer's home. T h e city had looked upon him as a " r e c l u s e , " but his social contacts, while limited to art, were extremely wide and varied in that field. These delightful gatherings had been no matter of perfunctory visitation, but m e m o r a b l e all-day affairs. New acquisitions were propped up in a convenient c h a i r and discussed in all lights. Old favorites were plucked out of serried rows of pictures and stacked up against the wall. R a c y anecdotes of the picture quest were recounted. T h e r e was an unfailing influx of E u r o p e a n visitants—renowned dealers, collectors, experts, even mere political or literary celebrities. T h e r e was abundant good talk, and equal opportunity f o r silent converse with the paintings crowded on the walls, and on the very doors. Nor indeed were there many l a r g e canvases in the collection. J o h n s o n designed his works as household adornments. He filled up the house he occupied. W h e n the large mansion adjoining his home had become vacant, he was quick to buy it. He had erected a temporary bridge f r o m the rear of one house to the other, and apparently had enjoyed the transfer of the collection. T h e hanging he directed himself, and the work had been done with taste and even e l e g a n c e ; soon the new house was also a

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rich treasury of art, with pictures in every corner. Costly rugs and furniture, silver and glass, had lent their charm to an arrangement that was luxurious and beautiful. Twenty years after the death of its master, the Johnson house was opened again as a home for artists employed by a Federal Art Project. In what was once the office of the owner, three presses turned out fine lithographs, woodcuts, and silk-screen posters. The posters went to schools, hospitals, and governmental departments. The bedrooms were converted into the working chambers of an art factory, where young men and women mixed paint, painted pictures, framed and shipped them. On the walls were pictures of the Pennsylvania Dutch, the Amish in their bonnets, their decorated barns and lush countrysides—scenes of Pennsylvania life and early Philadelphia history—John Bartram planting his first tree in 1728, or the ancient dower chests with the tulip and star of the Pennsylvania Germans. The rooms of the old house resounded with the work of artists and artisans. It was a far cry from the output of this busy atelier to the treasures in the Art Museum overlooking the main entrance to Fairmount Park. The value of the Johnson collection ran into millions and represented more than the work of many great painters, and the industry of an indefatigable collector. There was also knowledge and enthusiasm to supplement an extensive purse and an even more extensive virtuosity. Most of the large American collections had been assembled through the medium of dealers, but the lawyer had done much of his own buying. Over nearly forty years he spent the large part of his leisure in locating pictures that he liked and wanted; showing a knowledge of style, technique, and values comparable to his grasp of ruling case law. Johnson always refused to take an exaggerated fee for his legal services, and by the same token he always declined to pay unreasonable prices for pictures. While he was rich, there was none of the mere weight of money in his collecting. "No great collector in America compared with him in scholarship," wrote Frank Jewett Mather, a noted critic. In constant association with the irritable race of connoisseurs and experts, he weighed their opinions and formed his own conclusions. The splendid catalogue which he printed privately a few years before his death under the editorship of Berenson and Valentiner—three bulky volumes of handsome plates and adequate descriptions—was in itself a contribution to the history of art. Of his own opinion there was nothing loose or inspirational. He knew what he liked, and he knew why. His talk among his pictures was vivid and often enlightening. In the possession of masterpieces he was outbid by other Americans —the Havemeyers, Wideners, Frick—all with purses far greater than

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A LEGACY AND AN ART HERITAGE his own. B u t no other A m e r i c a n collection illustrated at a high level of quality the whole course of modern art. T h e conspicuous merit of J o h n s o n ' s collection is its scope. It begins with the origins, and in deliberate steps, pausing in one age, hurrying in another, it m a r c h e s down to the early twentieth century. F r o m the pupils of Giotto to W h i s t l e r is a span of seven centuries. T h e mind hardly grasps the daring endeavor, the physical effort encompassed by that vast period. A n d yet, with deviations, here they are shown in examples, sometimes m i n o r , but always authentic, for the eye to e n j o y and the b r a i n to grasp. T h e history of the collection goes back to the late 1 8 8 0 ' s . B y 1 8 9 2 , it had grown to some two hundred and eighty-one items illustrating principally nineteenth century E u r o p e a n and American painting. F r o m private c o r r e s p o n d e n c e and invoices it is c l e a r that many of the earlier purchases were soon tired of and sold or traded f o r pictures of greater importance. T h a t this process of growth by elimination and purchase continued until the very end is indicated by the presence of m o r e than one hundred and fifty pictures not listed in the 1 9 1 3 - 1 9 1 4 catalogue. A m o n g these paintings a n u m b e r represented new acquisitions, but others were doubtless destined f o r resale. It is also pertinent that the collection at the time of J o h n s o n ' s death in 1 9 1 7 contained only one hundred and ninety of the pictures catalogued in 1 8 9 2 . His appreciation p r o m p t l y followed the shifting phases of the art of the last century. H e acquired the best Whistlers, including a nocturne and a J a p a n e s e fantasy. He secured splendid examples of the Impressionists M a n e t and Monet. He owned Puvis de Chavannes' stately studies •—"Decorations f o r Hotel de V i l l e " at Amiens. T h e story goes that on one of his E u r o p e a n trips he secured the four of these, two for himself and two f o r his good friend Peter Widener. T h e more sensitive and recondite masters, E u g e n e C a r r i è r e and Matthiew Maris, appealed to him, and he was one of the earliest American buyers of the more vital Degas. T h e latter's " B a l l e t D a n c e r " was a special favorite, and apparently represented—like the studies of Rubens and R e m b r a n d t — t h e touch of nature that appealed most strongly to him, in contrast to the vapid correctness of a B o u g u e r e a u or Bonnat. E x a m p l e s of the greatest masters soon took their place in the historic process, and m a r k the points where art reached an ideal or paused over an enduring name. Y e t the monumental canvases of these artists in the collection only infrequently represent their m o r e f a m i l i a r work, or their most p o p u l a r appeal. T h e selection ran usually to paintings that met the critical eye of the expert, and often revealed other, but less well-known, facets of a great artist. F o r many reasons the lawyer refused to j o i n the stern quest f o r the more brilliant or widely acclaimed works of such men. A s a result, he gathered an artist's collection, of

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JOHN G. JOHNSON special interest to scholars for the opportunity it afforded to study genius in many phases less commonly understood. The inventory is an inclusive one, and the seven-century panorama shows a uniform thoroughness and accuracy. Artists and schools are represented more or less abundantly, but at every point it is the magic of sheerest perfection, rather than of mere name, that irradiates the canvas. Rembrandt and Rubens stand revealed in a magnificent group of color sketches. Among fifteenth-century artists of the Flemish School are J a n Steen with ten examples and Adrian Brouwer with four, while Van der Heist, Ferdinand Bol, Nicholas Maes, are exhibited in arresting portraits. Johnson's predilection for Flemish and Dutch paintings is prominently in evidence. He interpreted the term " F l e m i s h " in its broadest sense, to include not only the art of the Flemish Provinces, but of Holland too during the fifteenth and sixteenth centuries. He obtained copious examples of the Netherlands' "twin period of brilliant and artistic ascendancy"—the first between 1 4 3 0 and 1560, from Van Eyck to Brueghel, and the second as personified by Rubens and Rembrandt. He had concentrated too upon the significant period between the two peaks of Lowland art. The historical sequence was developed by him with uncommon energy and with a deep understanding of the life of those times. A later emphasis upon the Gothic and transitional painting brought this portion of the Johnson collection into prominence at special exhibitions of Flemish painting at Philadelphia and Worcester. In his collection of the Flemish and German primitive schools, he was indeed a pioneer. The latter-day recognition of the significance of these artists has somewhat obscured one of his achievements. Here he was a generation ahead of his time. Sincerity and the eager desire for careful workmanship—two outstanding characteristics of Flemish art—struck a responsive chord in the character of Johnson. He understood the fervid contemplation and the depth of living content expressed in the many examples of Flemish art that he brought together. Others followed in his footsteps, and museums and collectors added further examples of the Flemish to their galleries. The perfection of technique and the complete sincerity of expression, coupled with clarity, precision, and originality, led to a steadily higher evaluation of their work. But most pointedly the lawyer's own appreciation of art and his qualities of mind led him to gather these treasures long before there was a general awareness of their deeply spiritual quality, their supreme conceptions, perfection of execution, and richness of color. Among the highlights of the collection stands J a n van Eyck's " S t . Francis Receiving the Stigmata," which for many years was the only work of this artist in America. This picture received special mention

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in newspapers throughout the country when over half of the collection was installed in twenty new galleries at the Philadelphia Museum of Art late in 1941. But the praises of critics were not limited to comment upon this, probably the most valuable painting per square inch in the country. Time made the belated discovery that the collection was the finest in the United States in works of the Flemish School, was also unexcelled in its scope of Dutch masterpieces, in Spanish and German primitives, and ranked high in Renaissance Italians. The press was unanimous that the panorama of European painting was the most farreaching ever privately assembled in this country. Several critics emphasized not only Johnson's knowledge, but his courage in constantly venturing off the beaten track to include artists who can seldom be studied in the average museum. All pointed out the completeness of the historical sequence, and the number and variety of Italian and Flemish and Dutch examples. With good reason this part of the collection has constantly surprised European scholars, and particularly German experts, by its early recognition of artists who were but dimly understood at the time Johnson was journeying to Europe in search of Old World treasures. The collection ranks with the best in examples of early Italian art, and nearly one-third of the paintings are devoted to the fourteenth, fifteenth, and sixteenth centuries. There is a splendid head that draws its inspiration from Leonardo. Paul Veronese, the master in tints, is represented, as is also Ruskin's favorite, Tintoretto, who followed Titian in coloring and Michelangelo in design. "The Adoration of the Magi," by Andrea Mantegna, a fine "Pietà" by Carlo Crivelli, and "A Miracle of Christ," ascribed to Masaccio, instance the deeply religious feeling that permeates much of the collection. Sandro Botticelli is here too with examples of the first order, including the famous Predella Panels— "Christ Preaching," "Noli Me Tangere," "Last Moments of the Magdalen," and "Feast in the House of Levi." His, too, is the deeply impressive "Portrait of Lorenzo Lorenzano." In passing, one notes the work of Fra Angelico, and of Antonello da Messina, reputedly the first Italian artist who used oils. Sebastiano de Piombo is represented; the genius of Giovanni Bellini and of Moretto of Brescia, respectively teacher and pupil of Titian, is not overlooked. There is a more numerous constellation of lesser stars than in any other private catalogue. Florentines abound in names of the first order —Giotto, Agnolo Gaddi, Domenico Veneziano, Pesellino, Benozzo Gozzoli, Andrea del Sarto, of whom Browning wrote. Coreggio is there too, secured by a triumphant trade for several lesser gems. One can mention only a few names among the many Venetian masters —Bartolommeo Vivarini, Jacopo de Barbari, Cima da Conegliano, and the Bellini.

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The Sienese of Central Italy include Alegretto Nuzi, Gentile da Fabriano, Luca Signorelli, Bernardo Pintoricchio, Lorenzetti, and Domenico di Bartolo. There are noteworthy Spanish examples—in addition to three paintings by El Greco—but next to the Italian and Flemish, the strength of the collection is the array of Northern schools, Dutch, French, English, and German. Their great value arises from their historic fullness—a few masterworks and many panels and canvases of moderate cost, but important steps in the chronological pathway. Johnson judiciously temporized with the opportunities of the market, now acquiring great names, but more often contenting himself with delightful school pieces. At one time or another his interest touched every important phase of European painting. None was slighted except the rococo school of France. And those who knew him understood that he was incapable of pretending to get the fullest satisfaction from the delicate masquerading of Watteau and his followers. The blacksmith's son never endured gladly fools, bores, and marquises in the pastoral vein. Among the dozen splendid works of Rubens, one had an amusing association. Years before, another collector buttonholed the lawyer at lunch to tell him excitedly of a Rubens sketch he had seen in an auction room. Sitting down at his table, he bubbled over with the story of his "find"—a small panel of figures high on the wall. Johnson pretended to know all about it. His lofty indifference cooled the ardor of his rival. The result was that Johnson bought the slender little sketch, which now forms a part of the collection. To the titles already mentioned, one must add the important "Crucifixion" by this great artist. The courtly painters, Terburg and Metsu, are present, and the solemn but gracious landscapists, Ruysdael, Cuyp, Hobbema; perhaps Vermeer, too, the rarest of all. There is the "Guitar Player," which was long believed to be authentic. Few paintings in the collection roused such discussion or produced such a conflict of expert opinion. The best view now holds the item to be a copy of the original on the same subject which is included in the collection of Lord Iveagh in London. It was executed without doubt during the lifetime of the artist, perhaps one of a group sold by him to pay a debt. By such steps he approached the primitives of all schools. Most of the German group is attributed and holds only historic value, but there is much antique beauty, with many of the leading masters of the early sixteenth century represented. There is a small head on paper assigned to Diirer, and a Luther ascribed to Lucas Cranach the Elder; there are two panels by Bruyn the Elder that catch the eye. The French primitives are of the same order—heads, religious compositions, and altar-pieces, by François Clouet, Poussin, and lastly a group of ten Chardins, mostly of still-life, but with a few middle-class

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scenes. The Corots—landscape and figure pieces—alone number twentysix, and add vastly to the market value of the collection. Gerard David has a niche, and so have the remarkable Franz Hals and the Camphuysen brothers. There are two splendid paintings by Hans Memling, with his "Christ Crowned with Thorns" standing out signally, and the small but brilliant "Head of the Virgin." In the modern field, in addition to Corot, who is displayed in every aspect, and that other David, Jacques Louis, as well as Delacroix, Puvis de Chavannes, Ingres, Monet, Degas, testify to the breadth of the lawyer's taste. Bastien, who obtained the Legion of Honor Cross by his portrait of Sarah Bernhardt, and Edouard Manet, founder of Impressionism, also are represented. There are fifteen American canvases: the valuable "Lange Lijsen" and a Nocturne by Whistler, a "Luxembourg Garden," and a Venetian interior by John Sargent, and a significant Thomas Eakins, "Landscape, Gloucester," as though Johnson early divined the coming of that great American painter. There are four Alexanders and one Birge Harrison, four George Innesses, and, as noted, a Winslow Homer. "This is the collection of a man of fervor and judgment," wrote Royal Cortissoz in the Herald-Tribune, "of unremitting devotion to ail enchanting subject. It is not only a collection; it is a monument."* "A prodigious panorama, an imposing survey," were the words of Edward Alden Jewell in the Times, emphasizing the catholicity of Johnson's taste and his perseverance in achieving his grand objective. One evening in his home, he remarked to an old friend as he pointed out many of the old paintings: "However you may feel about the work of these men, you must admit they were sincere." This was the quality that above all else he demanded. It radiates from a magnificent bust of Giordano Bruno by Francheville, and is even clearer in Rodin's "Awakening," "Thought," and "Despair," three fine carvings. The immortality of stone and bronze, and even of oil and canvas, had a special appeal. * November 2nd, 1941. " H e must have been a formidable figure in the courtroom," wrote this distinguished critic. " B u t when I knew him in his old age, he was just a kindly, courteous gentleman, humorous in talk, peculiarly lovable. He had a tall and still commanding presence but there was nothing imposing about him. What I recall chiefly is his sweet gentleness, and of the innumerable legends about him the one I like best illustrates his refusal to make any distinctions among his many clients. " I t has been told of him that he was as accessible to an old colored woman who had perhaps only five or ten dollars to pay him, or possibly nothing at all, and as attentive to her interests, as he was to those of some gigantic corporation. " T o visit him on a Sunday, as I repeatedly did, was a sheer delight. He was a great gourmet, and luncheon was very like a banquet, with delectable dishes and vintage wines. All through it and through the hours that followed amongst the pictures, his conversation was fraught with friendliness and with his passion for art."

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Johnson gathered his treasures without fanfare and with reverence. He passed a long novitiate before entering the temple of art. Only twice in his entire lifetime was a new acquisition noted in the daily papers, and in each instance in spite of his own desire to avoid public mention of the fact. His wife shared his love for his pictures, and acquiesced gladly in his hobby. All the cardinal sins of such an endeavor were absent. The house on Broad Street was never a museum; the past was subordinated to the present, and the demands of living. No fear of a fragile Goya restrained the Johnson children or hung over the head of their mother. The lawyer loved his paintings too much to put them in a glass case or to think of them as property. They were like books that one cherished for their content, not for their bindings. The belief that he was making safe and conservative investments— which animated many of the industrialists and financiers—played no part in urging Johnson to his task. He knew too much about art to indulge the fantasy that its values were more stable than governments or banks. Because he selected his purchases with such discrimination, his own collection has held up better than most. Even in the cataclysm of a second World War its essential importance remains unimpaired. Shortly after the death of Colonel Morrell in September 1917, his wife gathered together all the books of Johnson which had been left to him. There were many standard sets of Thackeray, Dickens, and other classic writers, with hardly a volume of law among them. The law library in the Land Title Building went to Frank Prichard, a token of a lifelong association. Some of the books in the house on South Broad Street were sold, and the proceeds went to several charities to which Mrs. Morrell and her late husband had long devoted themselves. These included the St. Emma Industrial and Agricultural Institute at Rock Castle, Virginia, and the St. Francis Industrial School at Eddington, Pennsylvania. Other volumes were sent to the Xavier University in New Orleans, which had been established by Mother Katherine M. Drexel, a sister of Mrs. Morrell. The institutions at Rock Castle and New Orleans served to teach useful trades to young Negroes, while the Industrial School at Eddington enrolled white boys as well. The lawyer had been keenly interested in all the charitable and social endeavors of his son, his daughter-in-law and her sister. Thus it came about that the Johnson art collection—compensation for fifty-four years of active practice and forty years of equal effort in the field of painting—went to the city he had served. It is also noteworthy that the major income from his estate which reverted to Mrs. Morrell went solely to further the work of the three institutions to which she and her sister devoted themselves.

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The Legend and the Tradition T H R O U G H O U T his life Johnson, who avoided publicity, furnished excellent copy for the newspapers. He shunned reporters, but headlines had a habit of overtaking him. He loathed notoriety with a positive passion, but his appearances in court were fraught with dash and color. Rarely was he absent when cases of public and private consequence were contested. His very aversion to the limelight was a challenge to reporters. His emergence as a man of mystery during the period of anti-trust agitation was a natural evolution. He was a legal luminary when forensic oratory and courtroom tactics were subjects of general admiration. Debate and oratory were the two pathways to power and glory in an age that had not yet seen the rise of industrial barons and financial tycoons. The lawyer of the sixties and seventies radiated the glamour of the modern cinema favorite, or the not-so-modern matinée idol. His swagger and his ornate dress—and even more ornate diction—Reflected his public importance. Johnson stood out as the forerunner of a new and simpler age. His freedom f r o m the current affectation, as well as his abilities, marked him in bold relief. Gradually the size of his practice and the volume of his fees added to the general awe. In the seventies and early eighties a few industrialists were indeed laying the foundations of their fortunes. But only the rare executive or financier could boast of an income that ran to five figures. Motion picture stars, radio comedians, announcers, and authors did not crowd the upper salary brackets of the day. The lawyer, with a lucrative practice at an early age, stood out as only big money stands out. Even his moderate fees in single cases exceeded the annual wages of a clerk or bookkeeper. There were few private fortunes to dwarf his own rewards, and earnings definitely established caste and prestige. There were no leveling taxes, income taxes, and surtaxes. The banker and lawyer of that day enjoyed the fruits of professional success without the invidious comparison afforded by the fabulous earnings of a Shirley Temple, a Joe [295]

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Louis, a Billy Rose, or a Mickey Rooney. To young and old of the pre-Hollywood era Johnson represented the ultimate goal. Tales of his Spartan habits pointed the moral of success—labor omnia vincit; his own generation had not yet learned the many easier roads to fame and wealth that apparently overshadow the hard way to riches. Success weighed lightly upon Johnson's shoulders. It brought him few rewards beyond the quiet satisfaction of achievement. There was little leisure and few luxuries; there were inexorable demands upon his time. He could only walk, early and late, from home to office and from office to home—his green bag full of books and briefs. Recognition at the bar had merely brought responsibility. New problems always crowded out the diversions and pastimes that filled the life of the average man. The Johnson family owned no automobile, and the head of the house invariably preferred walking to riding in his carriage. He attended few dinners or social functions; frequently he lunched in a chain restaurant or at an oyster bar. Some crackers and a bowl of milk, or a dozen large oysters, and a huge piece of pie, might be his noon-day meal, in order to disrupt for only the briefest period the daily routine. Many factors, in addition to his devotion to his work, offered a field day for newsmen, and they made the most of it. Stories of the modesty of his fees ran a close race with tales of the modesty of the man, his variations from normal patterns, and his singular conduct in court and office. All were generally robust and well-flavored. One of the best stories told of a contemplated combination of a number of railroads. The interested financiers sent a long cablegram to Johnson, who was vacationing in Norway. It outlined the general plan and asked the lawyer's advice upon the vast project. An immediate reply was forthcoming: "Merger possible; jail certain." Another incident illustrated the independence of the advocate. Morgan and his associates retained Johnson in an important case. A special train was sent from New York. There was a brief conference; the lawyer outlined the entire situation and returned to Philadelphia. A few days later he was hurriedly summoned again. Once more a special train was sent to the station of the Pennsylvania Railroad to pick him up. But Johnson refused to leave his office. "I'm busy," he said. "Those fellows in New York think I can run over whenever they wiggle a finger! I've got something else to attend to." That "something else," it later appeared, was a small case involving less than one hundred dollars. A long cycle of anecdotes revolved about the extremely low fees that Johnson usually charged. At the same time these threw additional light upon his independent methods of practising law. Clubs and law offices were reported to bristle with references to the low scale of his charges. [296]

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His presentation of a bill for ten dollars—halving the minimum fee of a junior counsel—made him the despair of other lawyers. His reported refusal of lucrative business in order to devote himself to "more interesting" matters that paid nothing at all proved him utterly incorrigible. The picture of the greatest lawyer in the country asking and getting the fees of a struggling neophyte was as entrancing as the quip of the local bar that "Mr. Johnson will do wonderful work for ten dollars." His behavior after the triumph of the Sugar Trust decision was reported as positively shocking. His bill might have been anything he chose to make it. What he did choose to make it was three thousand dollars. He sent it to New York, and the other lawyers gasped; in fact, they pointedly objected. How could they, they argued sensibly, present their own entirely rational bills when John G. Johnson chose to act like that! It was suggested that Mr. Johnson reconsider his bill. Mr. Johnson, of course, did nothing of the sort. He had named, it was explained, the precise amount he thought his services were worth! According to another story, Johnson requested that Havemeyer give him one of the sugar magnate's paintings in lieu of a fee. Failing to secure payment in canvas and pigments, he reluctantly accepted the sum of one hundred thousand dollars. Another episode centered about his work in the reorganization of the Reading Railroad Company, in which he furnished most important guidance. "His fee had not been named," ran the account, "and when the reorganization was completed the Board sent Mr. Johnson a cheque for $50,000. Promptly by return mail came a letter from him, and with it the cheque. He considered his services worth only $30,000: would the board kindly attend to the matter? He could not accept more." In a coal company case he frightened the board of directors into an agony of mortification by returning another cheque. The case involved several millions and the lower courts had decided against the company. Johnson consented to appeal to the Supreme Court. "He walked into the courtroom, made a speech that lasted exactly fifteen minutes, and walked out." The previous decisions were reversed. Johnson's clients won, and members of the board of directors called in person with a cheque for $25,000. "Mr. Johnson looked at the cheque and handed it back," ran the report. "That won't do," were his words. The members of the board looked at each other in deep discomfort and flushed. "Oh, of course, Mr. Johnson, whatever you think best," murmured one of them. "You hadn't mentioned the amount of the fee. We are quite willing to pay $50,000 or more. Whatever you decide." The lawyer shook his head. " I only spent fifteen minutes on that case," he said. "It is worth five thousand dollars. You may pay that."

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By all accounts, his charges were as eccentric as they were low. They ranged from the low amount he asked for an oral opinion to the charge for the personal investigation of a case. He was apt to ask ten dollars for passing judgment on another lawyer's opinion, and twenty-five dollars if he signed the same "concurrence of legal finding." No one could forecast the fee in a particular case, and charges and the amounts received were simply noted in a little black book which he kept personally. But his fee policy was grounded upon long experience and strong convictions. It was colored by a volume of business that no other lawyer could match, and to that extent was at variance with the viewpoint of the average practitioner. Johnson realized that other men spent months upon cases to which he devoted only a few hours. But he insisted upon setting his own fees on the basis of his own work. When other lawyers remonstrated that his modest charges hurt them, he would simply say—"You send in your regular bill. So much is all I want." On the other hand, his own concepts of a day's work were formidable. Upon occasion he called other lawyers in the mid-afternoon, to be told that they had gone for the day. "These •—•—- three o'clock lawyers!" he would exclaim, with additional torrid comment upon the futility of wooing success on a six-hour schedule. In the lay mind Johnson's standard of fees depended largely upon how he happened to feel at the moment. This was entirely untrue. An oft-repeated story stated that a client had asked him to settle two estates. One was a large and rather complex piece of business, and the client felt that he would not be overcharged if he were asked ten thousand dollars. The other was much more simple. Reputedly Johnson sent in a bill of three hundred dollars for the larger estate and twenty-five hundred dollars for the smaller of the two. By lay standards the lawyer not only charged the readiest figure that came to his mind, but rendered his bills in his great cases by clocking the length of his argument in the Supreme Court. Mastering one of Morgan's intricate cases in twenty minutes and defending it in fifteen was a tall tale that—coupled with a low fee—made its unending rounds. On the other hand, hundreds of actual incidents exhibited the forthright mind of an honest craftsman. The aged mother of Harry K. Thaw indirectly retained Johnson in one of the many phases of the young man's fight for freedom. By every standard she had been shamefully fleeced by attorneys in several cities and states, who believed the Thaw millions inexhaustible and acted accordingly. Mrs. Thaw had been referred to a young lawyer, who consulted Johnson to guide him through a protracted proceeding. For his services, rendered at the pinnacle of [298]

THE LEGEND AND THE TRADITION his fame, he charged exactly fifty dollars, and would accept nothing more. In another well-authenticated case, he was consulted by one of the ablest of the younger attorneys upon the advisability of an appeal. A verdict of eight thousand dollars had been rendered against the owner of a quarry in favor of an employe who had lost an eye as the result of a premature blast. The matter was vital to both sides, for the verdict if sustained meant bankruptcy for the defendant. His own counsel advised against an appeal, and prepared a ten-page opinion to indicate its futility. Pressed by his client, he sought the final advices of Johnson. On a Saturday afternoon, Johnson carefully examined the long opinion. Finally he wrote at the bottom of the last page: " I agree with the foregoing. J . G. J . " His associate requested the charge, and was informed that this was fifteen dollars. T h e young man protested. " B u t I am getting two hundred and fifty dollars," he said. " Y e s , but you are doing all the w o r k . " T h e aftermath of. this episode throws equal light upon the Johnson memory. Nearly ten months later the younger lawyer, who had taken his appeal at the insistence of his desperate client, was concluding the case in the Circuit Court of Appeals. Johnson headed an impressive group of attorneys in the next case, and took his seat at the counsel table, as the younger man gathered his papers and prepared to leave the courtroom. " W e l l , the damn fool made you argue it after a l l , " were his only words, as he glanced over his own briefs. Instances of his remarkable memory could be piled up. S o many of these were contained in the records that it is not necessary to rely upon mere hearsay. It was no doubt true that his mind worked like lightning, even though the statement that " h e never forgot anything" was at best a slight exaggeration. T h e inaccuracies of the Sunday supplements merely blurred the picture. Allegations that he remembered every paper that he had ever written could impress only the most naive. E q u a l l y distasteful were general averments that he never argued a case without knowing all the other cases " o f that k i n d " that had been argued, and the details of each. Undoubtedly his memory was phenomenal, but it was merely the incidental attribute of a great concentration and natural talent for the law. The actual recollections of men like George W . Norris told not only of a vast working knowledge of the law, but of an amazing ability t o perform the most difficult tasks of the lawyer. At one time he drew up in exactly two hours an intricate plan of reorganization f o r a syndicate that had been formed to purchase coal

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JOHN G. JOHNSON lands. Several prominent corporation lawyers of New York had worked for six months upon a reorganization agreement. When the matter was brought to Johnson, he literally tore this document to pieces, quoting statute law of West Virginia and decisions of the Supreme Court which they contravened. While the clients adjourned for lunch, the lawyer prepared the new agreement, and when they returned it was ready for execution. In the words of Norris, " T h e former papers were destroyed. Everyone signed the new agreement, and the thing went through successfully. In less than three hours he had done what several leading corporation lawyers of another city had failed to do in six m o n t h s ! " Most of the syndicate members had hesitated to consult Johnson because of their fear that his charge would be five or ten thousand dollars for looking at the papers. "Anything over five hundred dollars that he may charge, we will p a y , " Norris had rejoined, and was never called upon to make any contribution. For many years, and until his death he represented the Gimbel Company and supervised the leases and agreements which were entailed when that company opened its great store in New York. Extensive litigation arose as a result of the construction of the Hudson Tunnels and the conflicting rights of the municipality and his client, which had a ninetynine year lease on its site. All the extra legal work was performed under his regular annual retainer, and when the Gimbel officials desired to pay him an additional fee he would hear nothing of it. They thereupon insisted that the amount of their annual retainer be doubled, but once again he refused. Only by much persuasion was he finally induced to raise the amount of his annual retainer by twenty-five percent. When the important lease, covering a century, had to be signed, Johnson approved the documents and suggested that the company have its New York counsel present at the execution. He indicated that he himself would be unable to go to New York. When the matter was discussed with the attorneys for the lessor, they at first were irritated at the failure of the Gimbel attorney to attend. They asked the name of the Philadelphia lawyer who was unable to g o to New York upon a matter of such importance. They were informed that John G. Johnson represented the lessee. "Oh, Mr. J o h n s o n ! " said the attorneys. " I n that case we shall be very glad to come to Philadelphia." In Simpson's estate, which in 1916 was appealed to the Supreme Court of Pennsylvania, the record went back half a century. The question involved liability for certain taxes. T o support his own contention against his distinguished adversary, John Kent K a n e offered in evidence a letter dated June 1, 1870, to indicate Johnson's opinion upon the

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point in dispute. The letter also revealed his premonition for legal difficulties: My dear Mrs. Bladen: It will give me great pleasure to advance you on the first July and first of October, the $ 142.50 per quarter. Don't bother about the fortyfive dollars diSerence. Let them stand for the present. The taxes will give us trouble. They must be paid out of the income, but I will tell the Company to let them stand open until late in the year. I hope the mosquitoes will not be large enough to carry you off; if they are, this New Jersey will be (undecipherable). With respects to yourself, Very truly yours, (signed) J O H N G. JOHNSON References to the lawyer's aloofness to social and legal gatherings were many, and not always precisely true. He was a member of the local, state, and national bar associations, and in fact headed the important Judiciary Committee of the first. He was a member of the Philadelphia Club, and frequently ate his lunches there. The pictures of Johnson devouring oysters in a secluded corner of that exclusive organization had overtones of an unsocial cast. Actually the lawyer was not only respected, but enjoyed the real affection of his fellow members. They felt very proud of the fame that came to him. He discarded many invitations to public dinners, merely because their number would have overwhelmed him. He attended the important gatherings of lawyers, though he was invariably absent upon merely formal occasions. The stories of his aversion to society were too piquant to be disregarded. At such social affairs as he could not avoid, his conversation was described as rharming and brilliant, and his entire simplicity was represented as of the polished and never of the bluff sort. An extraordinary incident was recalled by Joseph Carson. A reception was tendered in 1915 to John Hay Brown, who had succeeded D. Newlin Fell as Chief Justice of the State Supreme Court. The Chancellor of the Bar Association had requested Johnson to say a few words upon this occasion. The lawyer pleaded his inability to speak. The other insisted. "You are the dean of the bar, and it is most fitting that you say a few words." He went personally to Johnson's home and escorted him to the meeting. When it came Johnson's turn, he spoke haltingly for a few minutes in an apparent effort to make an appropriate speech. Then he seemed to stumble and stutter, and finally with a sudden expletive—"G-d-n i t ! " —he sat down. Johnson received the Degree of LL.D. from the University of Penn[301]

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sylvania in February 1915,* and on that occasion fidgeted uneasily on the platform. Back in his office, he discarded his academic robes and flung the mortar-board cap clear across the room, vowing that never again would he be induced to go through such a performance. Many further anecdotes could be incorporated on the Johnson profanity. He could swear in court in miraculous terms in a whisper to his colleague at some statement made by a witness against him; "Damn vermin," he would mutter, and if it happened to be one of his own witnesses who tripped, the oaths would be enforced by a peculiar pinching of his colleague's knee. In the United States Court a most irritating opponent, and one whom he greatly disliked, had compared Johnson's argument to the clothes of George IV, as described by Thackeray in his Four Georges: first a coat, and then a vest, and then a shirt, all highly colored, and then—nothing. Johnson swung in his chair and said " P i s h , " with a sound like the hiss of escaping steam, and rising, said: " I shall not trouble your Honors with a reply." In the office on one occasion he was asked an apparently simple question by a well-known business man, who was surprised to be told that he could have the answer the next day, after the authorities had been examined. The merchant said, "Why, Mr. Johnson, that is a very simple matter, and I thought you could answer it offhand." This remark was particularly irritating to Johnson, whose resistant epidermis had been pierced by numerous stories and articles that indicated that he had the entire common law packed neatly in the compartments of his mind. The lawyer exploded: "Do you think that the principles of law are arranged in a book like Webster's Dictionary, and that all I have to do is turn the pages to find a damn fool answer to a damn fool question?" While the voluble profanity of his middle and later years only endeared him further to many of his intimates, it shocked a few and provided a handle for the dislike of others. Pennypacker, who was glad to use his services in the few difficult cases that he secured, wrote in an unsympathetic reference to Johnson: "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. . . . " Even as keen an observer as Judge Gordon was led to note in his superb tribute to Johnson that "he was of the earth, earthy," which was indeed true. But the portrait of a gruff, blunt, rugged peasant, who by some miracle became a genius in the law, failed to describe the integrated personality of the lawyer. The work of Johnson required the coordination of so many unique abilities that to think of him r.s crude or coarse is to miss the challenge of his life and work. He was a strategist * Princeton had similarly honored him in 1913.

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THE LEGEND AND THE TRADITION and tactician, an artist and an author, a trenchant phrase-maker and a word-painter. He combined the talents of a versatile actor with the adroitness of a politician. He m e r g e d the insight of a novelist with the sympathetic understanding of a p a r i s h priest, the d a s h of an ail-American fullback and the restraint of a diplomat. He was abreast of every item of current events at home and familiar with developments a b r o a d ; he studied the course of markets and financial trends, advances in science, the h a p p e n i n g s of society. He a r g u e d cases involving the technical questions of patents and admiralty on the one hand, and at instant notice took up others that dealt with the latest turn of politics. He overlooked no p h a s e of human endeavor, for each might be the subject of a case at law which he would have to try. Nor was he narrow in his intellectual horizon. H e knew the great books, and had an uncommon knowledge of art and literature. If indeed other lawyers, who felt themselves more highly polished, might have d i s p l a y e d a greater f a m i l i a r i t y with the latest p l a y or novel, Johnson's understanding of painting and sculpture would simply have overwhelmed the dilettante. The p o p u l a r legend of J o h n s o n overlooked m a n y of his heroic proportions, simply because the general public had little understanding of the work entailed in the preparation of a s i m p l e case. Much of the unthinking p r a i s e that figured him as towering over all competitors was manifestly unfair to able lawyers throughout the country. A full-page article in the New Y o r k Times on J u n e 21, 1914, gathered together m a n y of the current stories, and a d d e d the usual exaggerations of the journalist. It spoke of him as never having been worsted on a point of law, of striding along B r o a d Street munching a sandwich, and of bustling into the courtroom and out a g a i n three or f o u r times of a morning, to chalk up as m a n y phenomenal victories against all and sundry. S u c h indiscriminate eulogy distorted the magnitude of Johnson's task, as well as of his real work. It f a i l e d to emphasize the lifelong fight to remain ahead of all rivals. Even in physique m a n y adversaries, like George G r a h a m and William B . Mann, were by no means dwarfed by his bulk and stature. Col. Robert Ingersoll and A. H. Garland, to mention only two of the national leaders, stood shoulder to shoulder with him. In all cases the slightest misstep or weakness meant disaster, for his opponents were equally alive to every variation of law and fact. He suffered rebuffs, and the smallest crack in his defenses became an open gate through which able adversaries rode triumphant. At one time, in Martin s Estate, he contested m a n y difficult trust questions with former J u d g e T h e o d o r e Jenkins, a resolute opponent, whose will to win was nearly a s strong as his own. T h e j u d g e s h a d reserved their decision on [3031

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Johnson's exceptions to their ruling against him. The two lawyers left the courtroom together. " I think this court is going to dismiss those exceptions," said Johnson, "but I have a fighting chance in the Supreme Court." "Mr. Johnson, you astonish me," retorted the other, who felt that the issue was weighted in his favor, and saw no possible reason or chance for an appeal. Johnson did indeed appeal the case, but without success. It was but one of many in which he strove in vain against a stout attack or tight defense. At all times, his adversaries were ready to exploit the slightest advantage in their favor. Against such opposition he reached the heights and maintained his place, because he was willing to pay a price that other men found too high. Some might have made the sacrifice of time or energy; others would have foregone the more normal pleasures of family and friends. Some might have chosen the law and an endless absorption in it over some period, but to all but Johnson the time came soon or late when mind and body cried "enough." With him that hour of diminished ardor never came. The zest for work never waned. In addition, he topped the great and near great of a hundred cities and towns because he alone combined the thousand necessary ingredients that make up the dynamic exponent of the law in conference and in trial. He was endowed by nature and favored by fate. At an age when most lawyers were chafing at humdrum tasks, waiting for an occasional case, he had a practice that required all his energies, and research in every branch of the law. His experience came early, and not after his mind had become old and unreceptive, and distracted by family cares. He had the stimulus of daily application of his early studies, and a certain monetary reward. He had a natural aptitude for the intricacies of the law. The very pressure of business which schooled him in every phase of the law would have overwhelmed a lesser talent. His extensive practice, which might have hammered a merely able attorney into an eminent specialist, transformed Johnson into the greatest of lawyers. Johnson was well described as one of the best-known men in Philadelphia, and one of the least-known in the nation at large. More exactly he was known only among those he served, and even to these was afforded only a partial view of his many-sided personality. Inevitably, he became a mysterious figure, because the elements of his greatness were not on display for public view. The final arguments in the courtroom in a few cases could give but an inadequate concept of his work. Even the general statements that he represented between sixty and eighty banks, and practically every other great corporation in the country, or that among financiers and lawyers his opinion was tantamount to a judicial decision, gave the general reader no definite picture of greatness. The names of his corporation clients, which ran the gamut of the listings on the

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THE LEGEND AND THE TRADITION New Y o r k S t o c k E x c h a n g e — f r o m the Amalgamated Copper Company and the A m e r i c a n Distilleries Company to the New Y o r k Central and the Pennsylvania R a i l r o a d s — c o u l d only reflect the impress of his mind upon the pivotal figures of American business. T h e legend and the tradition of his s t r e n g t h — p h y s i c a l , mental, and m o r a l — m u s t become a part of the f o l k l o r e of the centuries he spanned. T h e testimony of the ablest of his own generation makes apparent that the vivid fantasy of j o u r n a l i s t s and reporters in no wise overpainted his achievements.

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A Question Unanswered A . REFERENCE to the achievements of John G. Johnson always elicits the inquiry: How was he able to accomplish so much? A study of his career and a survey of his major and minor cases do not answer the question. They merely deepen the mystery of his accomplishment. In addition to the many cases mentioned, he was counsel for the American Banking Association, he handled the Freight Rate Cases of the Interstate Commerce Commission against the Lehigh Valley Railroad, the anti-trust case of the United States against the Reading Company, the Coal Trust Cases, the Commodities Clause Case under the Hepburn Act, the Full Crew Law, the Eight Hour Law. These and many other famous cases in the Supreme Court of the United States can be thus itemized. But a better perspective is obtainable through Carson's estimate of their number. However, only in the first few years of his practice was even a minor fraction of his cases of average difficulty. Thereafter he was retained, with few exceptions, in complex situations. The figures by and large cover important litigation that came to a recognized leader. Each case taxed the resources of an able advocate; each was stoutly fought and often the subject of public attention. Each justified fees running into thousands of dollars. The extensive preparation necessary in such cases before the final argument in the high courts was but dimly understood. So widespread was ignorance of the lawyer's task that many reporters computed Johnson's fees in terms of the few hours of oral argument in the Supreme Court. The averment that in the Northern Securities Case he was paid at the rate of ten thousand dollars a minute was widely made. Carson estimated that Johnson argued 1,525 cases in the Supreme Court of Pennsylvania. This has been partially checked, and the number more nearly approximated two thousand. In the Superior Court of the State, which was established in 1896, Carson set the figure at sixty as against at least eighty-three cases in this tribunal. In the District [306]

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Court of the United States he indicated only sixteen suits. But this palpably included only cases of national importance, subsequently argued in the higher courts. It evidently did not include the great number of cases which began and ended in this forum. In the Circuit Court of the United States, Carson recorded fifty-three cases—a figure which may be fairly accurate. Johnson handled 198 cases in the Circuit Court of Appeals, and 168 in the Supreme Court of the United States. The last is the highest number handled by any lawyer in the long history of that court. The volume of litigation in the two higher courts shows clearly the efforts of important interests to retain his services in critical matters. In addition there were forty-three cases in the Appellate Courts of other jurisdictions, including the Court of Claims, the Court of Appeals of the District of Columbia, and the courts of last resort of other states. These are only cases that were appealed to the higher courts. Throughout most of his career—certainly for the first thirty years—the great bulk of his work was in the Common Pleas and Orphans' Courts, the examination of witnesses, the argument of rules, addresses to juries, motions for new trials, hearings before special examiners, before masters in divorce. A selection of his paper books dealing chiefly with his Appellate Court work filled more than 3 5 0 bound volumes. Nor does this computation take into account his consultations, his written opinions, which were drawn as carefully as the decree of a court; his conferences with other attorneys, in which he frequently insisted upon a complete examination of evidence and of law. Finally, there could be no record of the hundreds of cases in which, after such conferences, action was taken by regular counsel. With these figures before us, the twenty heavy volumes of testimony in the Northern Securities Case, the eight million words of evidence in the Standard Oil suit, and the equally voluminous story of the Steel Trust—tangled with political feuds and mixed with the history of tariff and labor wars—take on a new significance. Johnson's style and methods —his directness and freedom from rhetoric, his refusal to waste his own time and the time of the court—become understandable. A story told by a Justice of the United States Supreme Court, upon whose shoulders the leadership of the Pennsylvania Bar descended, throws light upon the Johnson technique: Early in my career I was engaged in an intricate will case that involved several important legal questions. I had prepared my brief for argument in the Supreme Court with great care. I had set out seven propositions of law which I felt controlled the case, and had devoted many pages to each of these points, citing many cases to buttress each of them. As often happened in those days, my client had a change of heart

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at the last moment, and suggested that Mr. Johnson ought to argue the case before the seven justices. Any slight disappointment that I or any other young lawyer might have felt at such time was lost in the assurance that the case would receive the best attention and that the heavy weight of responsibility would be lightened. I consulted Mr. Johnson, and submitted my paper book to him. He examined it carefully, though briefly, and seemed entirely satisfied that the subject had been fully covered. The case was to be argued the next day, but he merely passed on to other matters. At the argument I was amazed to note that he discarded my brief and the seven points I had so industriously set forth. Instead he picked out a single one of these and spent his entire time hammering it home. The case was not only won, but the court decided it upon the point he had argued. One might feel that so engrossed in a hundred important cases, Johnson would miss the fine points of advocacy outside the strictly legal field. Not at all. He sensed every shade of emotion in hostile witnesses. His eye was open to every variation of judicial thought. He knew the bias and leanings of each of the judges, and varied his argument accordingly. " I n arguing applications for injunctions against noise, he carefully avoided citing Judge Hare's opinion in the St. Mark's Bell Case before Judge Thayer, lest he should exasperate him," wrote one observer. "He had no hesitation in citing it before Judge Arnold or Judge Willson." He could gauge accurately the motives and arguments which would appeal most strongly to judges, and often predicted how the courts would divide upon difficult questions. And he did this even in cases which he had not argued. In many instances his predictions were verified by the result. In consultations, after stating his views, he would say: "That is the law, but the court will not so hold in this case." He knew the futility of a frontal attack upon a decision which stood in his way, and if certain justices were on the bench he never attempted it. His flanking movements were interesting to watch, and sometimes were successful. His sapping and mining tactics were equally adroit. In one action brought for the removal of a trustee, the lower court had relied on a previous Supreme Court ruling, and emphasized the lack of confidence and the hostile relations between the trustee and his cestui que trust. Johnson avoided a direct attack upon the established law; he effectively undermined it by the suggestion that dissatisfaction with the trustee was the result of mere caprice. He emphasized the trivial to the exclusion of the substantive grounds of criticism. The manner of the trustee had been complained of, for, when he had called upon his ward, he had drawn a $10,000 cheque from his pocket, drafted to her order, and flaunting it, said with what she characterized as cheap vulgarity of manner, "How does that strike y o u ? "

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A QUESTION UNANSWERED Johnson, picking out this ground of complaint as a sample of other grounds, said in substance: Here is an amiable woman, suffering doubtless from nervous irritability, whose trustee has to see her at times to pay her installments of income. She complains that on one occasion he outraged her sensitive feelings by saying to her, in handing her a large cheque, "How does that strike y o u ? " Why, any one of us, including your Honors, would be glad to be struck that way. To remove a trustee for striking his cestui que trust with a $ 1 0 , 0 0 0 cheque drawn to her order would be a novel precedent. Through the adroit emphasis placed upon a trivial incident, Johnson started the Court in the direction of finding all the complaints without substantial basis. A noted jurist tells another story. Arguing a case in which the conservative leanings of Chief Justice Mitchell would weigh heavily for Johnson's client, he arrived in court to find that this judge—whom a few less respectful spirits of the bar had dubbed " T h e Old B o u r b o n " — was sick. The lawyer relates that he then wagered with another member of his staff that Johnson would not argue the case until Mitchell was ready to take part. True enough, Johnson contrived to defer the argument, and in fact did not argue his case until that pillar of conservatism was duly in its place. Such was the affection for Johnson on the part of the bar, and the deep respect of the bench, that the court deferred even to his hobbies, his idiosyncrasies, and his pet peeves. In the Circuit Court of Appeals, Johnson and George S. Patterson were opposed by a lawyer whom the former loathed. Judge Dallas leaned over and asked, " W h o m shall we hear first—you or Mr. Patterson?" In a voice loud enough to be heard in all parts of the courtroom, Johnson said, "George, you answer that little !" The tasks performed by Johnson in his long lifetime were never the result of tour de force or sleight of hand. In the early days every brief had to be written out in longhand; statements of claim and bills of complaint, affidavits, rules, had to be carefully indited, phrase by phrase and paragraph by paragraph. Letters had to be penned and then copied in ponderous letter books. Bills of exception had to be sealed and copied. Johnson's early training and complete absorption in the law gave him a panoramic view of the whole field of jurisprudence. As a result, there was no lost motion. Every step taken was correct; he lost himself in no bypaths; he did not have to retrace his steps. He worked with finality. His early briefs resembled a Dickens manu-

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script. The changes and corrections were few, the complete mastery of material apparent on every page. His knowledge of the law and textbooks was uncanny. A lawyer who was associated with him in many cases relates a characteristic anecdote. After working industriously over an intricate trust agreement, he submitted the final draft to Johnson, who represented the bankers. He was quite sure of his ground, having unearthed a leading case that settled many of the questions involved, but one later decision troubled him. It seemed to contradict the chief principle of the preceding case. He found Johnson hard at work, and watched the reading of his own form with trepidation, as the older lawyer glanced over the many pages of the manuscript. "This seems to be in order," he commented dryly, laying the document on his desk. "Of course, you followed vs. ," referring to the major ruling. The younger man was impressed by his easy familiarity with the controlling decisions, but reflected that intricate agreements were merely part of the daily routine for Johnson. "Yes, I did," he assented, "but I'm a bit perturbed . . . I'm not sure of my ground." "Oh," interjected Johnson quietly, "I know what's worrying you; it's that later case," adding the name and identifying facts as a matter of course. His caller nodded in agreement. "Don't let that case bother you. The Supreme Court will never follow that decision. Of course you know they only decided it to get Dave Watson out of a bad hole." Such was Johnson's knowledge of the law—right up to the moment. He was not merely abreast of the latest decision; he was familiar with the special reasons for each decision, the scope of that decision, and how far it might be followed in the future. A story told by a noted authority in the field of insurance throws further light on the workings of the Johnson mind. Having called upon him to discuss the grave disparity of bills rendered by the two men for legal opinions, the discussion veered to the new Workman's Compensation Act. Johnson forecast the decision of the Supreme Court on the act and the grounds for its opinion. Two years later the insurance expert read the opinion of the Supreme Court, invalidating the Act. Every point made by Johnson was embodied in that opinion. The Court had acted as he had predicted and for the reasons he had elaborated. The lawyer's knowledge of the books was supplemented by a faculty for tracking down obscure cases. Many times his associates gave up the quest for a case in point only to find that their chief, digging into

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A QUESTION UNANSWERED the heavy tomes with his great hands and his " n e a t , artistic fingers," as one phrased it i r o n i c a l l y , h a d come up with an elusive ruling that clinched the issue. H i s m e m o r y was p h e n o m e n a l ; lawyers and business men alike were impressed by it. Even though years had elapsed since he was last consulted, he c o u l d take up the details of a case which he had once mastered without r e q u i r i n g a new study of the facts. I n a case where he had drawn a bill involving a very large sum of money, he was compelled to try it without time to refresh his recollection. T h e j u d g e was quick, and directed him to proceed. He called the defendant f o r cross-examination, fired some questions at r a n d o m , which, being wholly irrelevant, confused the witness, who did not know what was in store f o r him. In the meantime, J o h n s o n glanced over the complaint until he got his bearings, and then whispering to his colleague, " I have hold of it n o w , " he closed down upon the case. I n another case he was consulted as to the possibility of putting a new gas c o m p a n y into a certain part of P h i l a d e l p h i a . It was thought that there was a possible loophole in an exclusive statute. J o h n s o n instantly said, " I gave an opinion on that o n c e " : and sending f o r it, it was found that he had followed exactly a line of reasoning which he had formulated fourteen years before. No matter how involved the figures, the distributive shares, or the terms of special estates, it was never necessary for officers of trust and title companies to do m o r e than identify the file to recall all the circumstances to J o h n s o n ' s mind. In a c o m p l e x partnership controversy—further mired by insolvency — t h e cause went to a referee. T w o years later J o h n s o n was called upon to argue the case. W i t h o u t further preparation, he emphasized the salient feature of the case and secured a dismissal of the bill. M a n y clients recalled his faculty f o r concentration. As each entered his office, a l l the old threads were picked up, all the facts assembled. T h e r e was no carry-over f r o m other problems, and attention solely to the case at hand. Old lawyers t o l d of his ability to read voluminous briefs, letters, and masses of testimony page b y page, r a t h e r than line by line. A l l agreed that a single glance sufficed to take in full details. He was not a f r a i d to lose, n o r did he a i m for perfection. H e did his best, fought hard, and left the result to the courts. In the l o n g run his average of success duly reflected his great ability. His sense of j u s t i c e was k e e n ; if he suspected double-dealing on the other side, he fought like " a wildcat in c o u r t " (the words c o m e f r o m one who saw h i m in action f r e q u e n t l y ) ; he spared nothing to b r i n g his opponents to b o o k . In an insurance case, where a p r o p e r settlement of a fire loss was withheld, it was c l e a r that the company was exploiting the needs of the insured f o r cash to rebuild. Johnson did not stop at

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mere threat of suit. He wrote a drastic letter that unless a prompt settlement was made, he would cause an investigation of the company by the state authorities. The insurance officials knew that this was no idle threat from the barrister who was consulted by the executive departments. When the Pennsylvania Hospital sought to prevent the city from opening Forty-fourth Street through its grounds in West Philadelphia, its attorneys called in Johnson. He presented a vehement argument based upon the Hospital's charter, which made the consent of the institution prerequisite to action by the city. The City Solicitor interrupted to remind him that the city proposed to have the property valued by a jury, so that a fair price could be fixed. "Oh, I didn't understand that," said Johnson, and apparently lost interest. The Hospital's battery of lawyers pulled at his coat tails, and strove to communicate the technical basis of their action. But Johnson's heart was no longer in the case, and when the judge ruled against his clients, he withdrew. The case was appealed to Harrisburg, and later to Washington. The Hospital had secured the services of the ablest attorney in the State— next to Johnson. But in each case the latter's judgment was vindicated. This was more than a matter of the heart. So vast was his knowledge of the law—exceptions as well as general principles—that he knew instinctively that the position of his clients was untenable. He was familiar with the thesis that sovereign rights could be surrendered irrevocably; but he also knew that . . . the Constitutional inhibition upon any state law impairing the obligation of contracts is not a limitation upon the power of eminent domain. That the obligation of a contract is not impaired when it is appropriated to a public use and compensation made therefor. Johnson's influence—particularly after he had passed his early thirties—was enormous. His simple retention in a case frequently brought about a settlement. His opinion was usually sufficient to end all controversy. But his prestige operated in a hundred other ways. The entire bar was in his debt, and a simple request from him was a royal command. Few business and political leaders had not at some stage made use of his services. Many of the judges wore their robes by grace of a suggestion, a chance remark or the initiative that emanated from him. Not a few of them had consulted him in their private affairs. His advices guided the direction and investment of property and funds whose value exceeded all compt. This vast power was guarded by Johnson with scrupulous care. It was [312]

A QUESTION UNANSWERED

used only with forethought and tempered with kindness. Nothing pleased him so much as to turn his great prestige into a benefit for the humblest client. Nothing brought a heartier chuckle than to wrest a valuable concession from the high-placed for the underprivileged—especially where other lawyers had thrown up their hands in despair. One can only speculate as to the fortune he might have amassed had he given thought to mere money. After his victory in the Steel Trust suit, he might easily have rendered a bill for two or even three millions, and in view of the amount at stake it is hard to see how such a demand could have been resisted. After an earlier important service for the Carnegie Steel Company, he sent in a charge for ten thousand dollars. Andrew Carnegie was astonished, and insisted upon paying more. Johnson was adamant; he was well on in years, and figures that had failed to excite him as a young man had become merely strokes in a ledger. "If you must do something further for me," he yielded at last, "send me a really good razor of the finest steel." At another time Samuel Untermyer was reputed to have chided him for the modesty of his fees. "You are ruining the profession," he said, with further comment that Johnson would probably find his way to the poorhouse. "My paintings are insured for five million dollars," was Johnson's sole answer. In his eminence at the bar he rose above every shaft of public enmity or private malice. His position had been won by such life-long application that the voice of calumny was stilled. His skill reeked of midnight oil and the dust of old tomes; it told of the scrutiny of judicial reports and trends. His judgment was the fruit of such unprecedented study and experience that rivalry was submerged. His instinct was so sure that the remedy for each situation suggested itself instantly. Upon one occasion, while he was vacationing in Europe, his associates were confronted by the terrifying dilemma of a large corporate mortgage that had been satisfied by mistake. After much discussion, they dispatched a long cable to their chief outlining the situation. An immediate reply was forthcoming. It contained a single word: "Re-record." A sidelight upon the lawyer's habits of work is afforded by an incident related by William I. Schaffer, Chief Justice of Pennsylvania. The latter had consulted Johnson in a difficult case involving a complex contract. A judgment against his client would have spelled bankruptcy. The future Justice had drawn up an affidavit of defense, but was not satisfied that it accomplished its purpose. A few days after his conference he again called upon Johnson, and was handed the completed affidavit.

[313]

JOHN G. JOHNSON

"I do not wonder that you were troubled," he said. "I worked on it till three o'clock this morning, and I am still not sure that the will hold water." In spite of his force and application, the attitude of Johnson toward clients and cases combined the keenness of the scientist with a certain naïveté of the college professor. There was solely the delight in solving old problems and in taking up new researches. Fame and wealth could make no change in his outlook or routine. His talent and zeal condemned him to a lifetime of hard labor. In the words of Judge Gordon: "He worked, worked, forever worked in sad sincerity." Yet the possible key to his monumental labors is to be found in this—that his work was his hobby; it gave him the delight that other men found in games and sports. In this respect his boyhood, so early turned to serious uses, had its compensation. Great battles have indeed been won upon the playing fields of Harrow and Eton; but by the same token great scientists, authors, or diplomats have been lost in an early devotion to sport that persisted too long and made the real work of life an avocation. Not a few commentators implied a certain eccentricity on Johnson's part—abnormal behavior patterns. They could not understand his lack of pretense and his freedom from vanity. He was indeed abnormal. A successful lawyer should surround himself with a retinue of assistants to perform the hard tasks of the law, to argue motions before dull judges, to coax and flatter juries, to engage in long battles in the courtroom. He should ensconce himself in a suite of lavish offices, and bar approach by half a dozen secretaries. He should hire young men fresh from the law school (at low or no wages) to brief facts and law, while he himself pursued clients in the higher circles of finance and society. Johnson refused to do all these things; he also refused to become merely the nominal head of a legal factory. He shunned the isolation of an ivory tower, and kept his office open to the public. He disdained mere hire by great corporations, and insisted on retaining freedom of action. He continued to represent the average man, the forgotten man, and the exploited man. The lawyer who battled so many cases in the courts was not merely a poor executive enmeshed in office detail. Rather was he the victim of his own prestige and the weight of the matters entrusted to him. Nor had the ethics and traditions of his era acclaimed the office-lawyer—a peculiar product of the new century. Johnson was the last of the general practitioners in the great cities. But the lawyer whose usefulness is not impaired by special retainers, by a narrow outlook, or by a natural fear that one class of clients precludes others, and can handle all cases, passed out with the Great War. From that day, the large law offices

[314]

A QUESTION UNANSWERED

with their huge staffs and overhead became geared to a production line —to dispense the law as a standard product, neatly packaged. Johnson fought the last rearguard action of the individualist and general practitioner against the law factory and the specialists. He was the last of the pioneers in the law, while the frontier was still a part of American life. His genius was still able to master the totality of the law before the complexity of the Post-War Era—new rules, new commissions and governmental bodies. He carried the traditions of the old century well into the new. There is a remarkable sameness in the comments of those who came into contact with him—all men who had known the leading figures of their generation. Owen Wister, who wrote The Virginian, and the story of his friendship with Roosevelt, and knew the great men of the day, rated Johnson above them all.* George W. Norris, with a vast experience as a journalist, lawyer, and financier, wrote: "John G. Johnson was the possessor of the greatest mind with which it has ever been my privilege to come in contact."! Hampton L. Carson, who was himself a great lawyer and student and had a sure instinct for biography, felt humble in his presence. James M. Beck, who added a fine literary flavor to his gifts as orator, lawyer, and politician, hailed Johnson as without an equal in the history of the American Bar. Samuel W. Pennypacker, who was governor and judge, author and delver into old records; George Wharton Pepper, senator and lawyer, churchman and littérateur, attested the unforgettable quality of Johnson's personality. His reputation in Europe was even greater than at home. Chief Baron Pallis, noted Irish jurist, visiting this country, stated that the man he was most anxious to meet in the whole United States was Johnson, the greatest lawyer in the English-speaking world. The records are replete with able men who achieved fame and riches. They also instance myriad feats of labor and performance. The story of penniless youth who attained power and place stands out from every other page of the annals of America. In most cases the young men who started out bravely with high ideals never arrived at their goal, but were lost somewhere on the path in the harder and more worldly men of their middle and later years. Johnson never was lost in this way. The eager young man who started out in the high school and in the Rush office to know and practise law was still working at the law when the final summons came. * Foreword, Ended Episodes. t Ended Episodes, p. 25.

[315]

Bibliography Barton, George. Little Journeys around Old Philadelphia. (P. Reilly Company, 1925.) Barton, George. Walks and Talks about Old Philadelphia. (P. Reilly Company, 1928.) Collins, Herman L. Philadelphia; a story of progress, 3 vols. (Lewi9 Historical Publication Co., 1941.) Faris, J . T. The Romance of Old Philadelphia. (J. B. Lippincott Co., 1918.) Hotchkin, S. F. Ancient and Modern Germantown, Mount Airy and Chestnut Hill. (W. Ziegler & Co., 1889.) Jackson, Joseph. Encyclopedia of Philadelphia, 4 vols. (National Historical Assn., 1930-33.) Lewis, John F. History of an Old Philadelphia Land Title. (Patterson and White Co., 1934.) MacFarlane, John J. History of Early Chestnut Hill. (City History Society, 1927.) McClure, A. K. Old Time Notes of Philadelphia, 2 vols. (John C. Winston Co., 1905.) Philadelphia; a guide to the nation's birthplace. (Compiled by Federal Writers Project, 1937.) Taylor, Frank H. Philadelphia in the Civil War. (Published by City, 1913.) In addition to the general literature on the "trusts," and special histories and biographies, particular mention is due: Binney, Charles Chauncey. The Life of Horace Binney. (J. B. Lippincott Co., 1903.) Bowers, Claude G. The Tragic Era. (Houghton Mifflin & Co., 1929.) Cheyney, Edward P. History of the University of Pennsylvania. (University of Pennsylvania Press, 1940.) Davis, Forrest. What Price Wall Street? (Godwin, 1932.) Downey, D. G. Richard Watson Gilder (1906). Edmonds, Franklin Spencer. History of the Central High School. (J. B. Lippincott Co., 1902.) Goodman, Nathan G. Dr. Benjamin Rush. (University of Pennsylvania Press, 1934.) Josephson, Matthew, The Robber Barons. (Harcourt, Brace & Co., 1934.) Knollenberg, Bernhard. Washington and the Revolution, a Reappraisal: (The Macmillan Company, 1940.) Minnigerode, Meade. The Fabulous Forties. (G. P. Putnam's Sons, 1924.) [316]

BIBLIOGRAPHY

Myers, Gustavus. A History of the Great American Fortunes, 3 vols. (Kerr, 1911.) Noyes, Alexander D. Forty Years of American Finance. (G. P. Putnam's Sons, 1909.) IS'oyes, Alexander D. The War Period of American Finance. (G. P. Putnam's Sons, 1926.) Pennell, Elizabeth Robins. Charles Godfrey Leland. (Houghton Mifflin & Co., 1906.) Roosevelt, Theodore. An Autobiography. (Charles Scribner's Sons, 1925.) Savidge, Eugene Coleman. Life of Benjamin Harris Brewster. (J. B. Lippincott Co., 1891.) Sullivan, Mark. Our Times: The United States 1900-1925, 6 vols. (Charles Scribner's Sons, 1926, '32, '35.) Van Doren, Carl. The Secret History of the Revolution. (Viking Press, 1941.) Whittlesey, Albert W. Highlights in the One Hundred Twenty-Five Year History of the Pennsylvania Company. (MSS.) The story of the American Bar, and of the Bench and Bar of Philadelphia, is contained in many volumes and monographs, but the following have a special significance: Alfange, Dean. The Supreme Court and the National Will. (Doubleday, Doran Co., 1937.) Biddle, Craig. Reminiscences of the Bench & Bar (1900). Brown, David Paul. The Forum. 2 vols. (Robert H. Small, 1856.) Coxe, Robert Davison. Legal Philadelphia. (Campbell, 1908.) MacElree, W. W. Side Lights on the Bench and Bar of Chester County (1918). Martin, J . H. Bench and Bar of Philadelphia (1883). Norris, George W. Ended Episodes. (John C. Winston Co., 1937.) Pennypacker, Samuel W. Autobiography of a Pennsylvanian. (John C. Winston Co., 1918.) Sharswood, George. Early History of the Law Academy (1883). Sharswood, George. An Essay on Professional Ethics. (Report of the American Bar Assn., 1907.) Simpson, Alexander. The Practical Conduct of a Jury Trial (1903). Warren, Charles. History of the American Bar. (Little, Brown & Co., 1911.) Willard, Joseph A. Half a Century with Judges and Lawyers. (Houghton Mifflin & Co., 1895.) Willcox, James M. A History of the Philadelphia Saving Fund Society. (J. B. Lippincott Co., 1916.) The So-called Tobacco Trust. (Century 43:788, 1903.) The Billion-Dollar Corporation. (Gunton's 20:421, 1901.) End of the Sugar Trust Investigation. (Public Opinion 17:437, 1894.) Hand-Books of the Central High School, 1930-41. (Mary Gaston Barnwell Foundation.) [317]

JOHN G. JOHNSON

A History of the Cirard Trust Company (1936). Catalogue of a Collection of Paintings and Some Art Objects, 3 vols. (Gilliss Press, 1913-1914.) V. 1. Italian Paintings, by Bernhard Berenson. V. 2. Flemish and Dutch Paintings, by W. R. Valentiner. V. 3. German, French, Spanish and English Paintings, and Art Objects, by W. R. Valentiner. Annual Addresses before the Law Academy of Philadelphia. James T. Mitchell. Scrapbooks of Newspaper Clippings. (Philadelphia, 1879-1909.) Biddle, George Washington. Address on death of George Sharswood (1883). Binney, Horace. Eulogy on death of John Marshall (1835). Brown, David Paul. In Defence of Alexander William Holmes of the Crew of the William Brown (1842). Haney, John Louis. "David Paul Brown"; in Great American Lawyers. (John C. Winston Co., 1909.) Levinthal, Louis E. Mayer Sulzberger, P. J. (1927). Schaffer, William I. Daniel Webster, a monograph. Case material is contained in the official reports of the United States Supreme Court, of the Supreme and Superior Courts of Pennsylvania, of the Circuit Courts and Courts of Appeals, in the Weekly Notes of Cases, the records of the Common Pleas and Orphans' Courts of Philadelphia County, and in contemporary legal journals and daily newspapers. Among many articles about Johnson in newspaper and magazine, in addition to those mentioned in the text: Allen, H. Merrian. Lawyer and Art Collector. (Bellman, May 12, 1917.) Berenson, Lawrence. Great American and Great Art Connoisseur. (Literary Digest, 54:1330, 1 May 5, 1917.) Brightly, F. F. John G. Johnson. (Legal Intelligencer, Philadelphia, April 18, 1917.) Brinton, C. Johnson Modern Groups. (International Studio, October, 1922.) Friedländer, Max. On Flemish Painting. (Art News, 1939 Annual.) Mather, F. J., Jr., Great Corporation Lawyer and Art Collector. (Nation, April, 1917.) Mordell, Albert. Johnson, the Man. (Philadelphia Record, May 5, 1917.) Morris, Harrison S. Art Collection of John G. Johnson. (Scribner's, M 68:379-84 S '20.) Van Puyvelde, Leo. Flemish Painting at Worcester and Philadelphia. (Art News, 1939 Annual.) Van Puyvelde, Leo. The John G. Johnson Collection. (Art News, November 1-14, 1941.)

[318]

BIBLIOGRAPHY Above all, the b i o g r a p h e r of J o h n s o n must lean heavily upon the Memorial A d d r e s s of H a m p t o n L . Carson (Pennsylvania B a r Association, 1 9 1 7 ) . S o much is included in this fifty-page monograph—letters of contemporaries, the records of indefatigable research and a lifelong friendship—that most of this valuable material h a s been embodied in some f o r m . Finally it must be emphasized that no imaginary conversations have been set down. Every recorded episode of this kind rests upon the statements or letters of contemporaries, or in a few cases upon family tradition. Gossip and the d i a l o g u e of p r e s s accounts have been indicated as such.

[319]

Index A Academy of Music, 143-45 Alcantara, Dom Pedro de, 97, 98 All Saints' Church, 96 Allison, Judge Joseph, 114, 115, 191 Amalgamated Copper Company, 305 American Artist's Story, An, 166, 167 American Banking Association, 306 American Distilling Company, 305 American Sugar Refining Company, 171, 179 American Tobacco Case, 236-37, 239, 243, 258, 263, 266 American Tobacco Company, 151, 235, 236, 239, 243, 263 Arnold, Judge Michael, 308 Arundel, George, 37 B Bache, Alexander D., 13 Baer, George F., 109, 190, 238 Baldwin Locomotive Works, 87, 109 Ballard, Ellis Ames, 232 Bancroft, George, 60, 61 Baron Steengracht, gallery of, 165 Battery A, 1st Pennsylvania Artillery, 49-51 Baxter's Volunteer Manual, 42 Bayard, George W., 117 Bayard, James Wilson, 247, 248 Beck. James M., 177, 213, 243 Bedell, Bradbury, 125 Bentley's Appeal, 116 Berenson, Bernhard, 163, 288 Biddle, Arthur, 117 Biddle, A. Sidney, 117 Biddle, Craig, 114, 115, 145, 203 Biddle, Francis, 194 Biddle, George, 166, 167 Biddle, George W., 23, 26, 49, 54, 57, 79, 106, 108, 117, 118, 143, 144, 145 Biddle, George W., Jr., 31, 117, 145 Binney, Horace, 27, 29, 32, 37, 147

Binney, Horace, Jr., 46, 114 Bispham, George Tucker, 26, 44, 101, 109, 275 Black, Jeremiah S., 38, 111, 127 Blackstone, William, 22 Bode, Wilhelm, 163 Boker, George, 35, 46, 133 Boremius, Tancred, 163 Bradley, Justice Joseph P., 187 Bregy, Amadeus F., 204 Brewer, Justice David Josiah, 217, 219 Brewster, Benjamin H., 35, 40, 44, 74, 97, 116, 145, 200, 248 Brewster, F. Carroll, 47, 56, 74, 102, 108, 125, 191, 197 Brewster, Francis E., 37, 102 Briggs, Amos, 112 Brightly, F. F., 203 Brougham, Lord Henry, 28, 31 Brown, David Paul, 27-31, 38, 74 Brown, Henry P., 151 Brown, John, 24, 33, 34, 120 Brown, John Hay, 280, 301 Bryan, William Jennings, 171 Buchanan, James T., 18, 38 Buffington, Joseph, 263, 264 Bullitt, John C., 37, 38, 40, 74, 89, 102, 104, 112, 125 Bunn, C. W., 213 Burt, Arthur, 132-36 C Cadwalader, John, 26, 37, 60, 79, 186 Cadwalader, John, Jr., 102, 115 Canadian Pacific Railroad, 217 Carnegie, Andrew, 22, 85, 150, 209, 238, 242, 255, 256, 263, 264, 275 Carson, Hampton L., 113, 155, 190, 267, 273, 279, 306 Carson, Joseph, 301 Carter, James C., 220 "Case of the Sayward, The," 186 Cassatt, Alexander J., 22, 196, 239 Cassidy, Lewis C., 40, 186, 229

[3 L]

INDEX Centennial celebration, 97-99 Central High School, 11-14, 43 Centre Square, 14, 15 Chase, Salmon P., 34 Chauncey, Charles, 29, 37, 49 Chestnut Hill, 14, 7, 9, 10, 14 Chicago Burlington & Quincy Railroad, 215 Children's Hospital, 108 Childs, George W , 87 Choate, Joseph, 74, 146, 172, 200, 207, 262, 281 Choate, Rufus, 33 Clark, Edward, 19 Cleveland, Grover, 171-72, 184, 199 Cobbett, William, 59 Coleridge, Chief Justice John Duke, 117 Conwell, Russell H„ 283 Cooke, Jay, 19, 22, 54, 59, 86, 88, 89 Corr, Bernard, 202 Coxe, Robert D., 18, 28, 36 Coxey's Army, 171 Craig, "William B., 274 Cramp, Charles, 19 Cramp, William, 40 Cramp's Shipbuilding Company, 87 Creole, the, 5 Cress Tavern, 2 Cuba Libre, 93 Curtin, Governor Andrew, 49 Curti9, Benjamin R., 214 Curtis, William, 39 Cutler, A. R., 45 Cuyler, Theodore deWitt, 37, 39, 72, 73, 79, 102, 200 D Dale, Richard C., 102, 188, 199, 232, 250, 275 Dallas, Alexander J., 37 Dallas, George, 37, 44 Dallas, George M., 37, 138, 139, 140, 309 Daumier, Honore, 246 Day, William A., 213 Day, Justice William R., 175, 266 Deaver, John B., 283 Depew, Chauncey, 190, 220 Dickerson, William R., 123, 124-28 Dickinson, Jacob M., 262 Dickinson Law School, 18 Dickson, Samuel, 102, 104, 112, 198, 199, 253 Dixon, Alexander J. Dallas, 130 Dodd, Samuel C. T., 142, 173 l'c

Donnelly, Ignatius, 19 Dougherty, Daniel, 40, 184 Dreiser, Theodore, 19 Drexel, A. J., 40, 87 Drexel, Francis, 145 Drexel, Katherine M., 294 Drexel, Louise, 145, 196 Dropsie, Moses, 37, 72 Duane, Russell, 186 Du Ponceau, Peter Stephen, 44 DuPont Case, 277, 278 du Pont, Philip S., 278 du Pont, Pierre, 278 du Pont, T. Coleman, 278 E Earle, George H., Jr., 38, 185 Earle, Thomas, 37 Eddystone explosion, 279 Edmunds, George F., 172 Eight Hour Law Case, 306 Elkins, George, 199 Elverson, James, 140 Empire Transportation Company, 239 Evans, Ralph B., 247 Evening Bulletin, The (Phila.), 280 F Fairmount Park, 1, 183 Fairmount Park Commission, 245 Federal Art Project, 288 Federal Reserve Act, 222, 267 Fell, Judge Newlin, 271, 301 Felton, Samuel J., 40 Fern On Remainders, 55 Finletter, Thomas K., 115, 135, 136, 146 Flanders, Henry, 109 Forum, The, 28-30 Fox, George, 7 Franklin, Benjamin, 13, 21 Franklin Savings Fund, 88 Freedley, Angelo T., 135 Freight Rate Cases, 306 Frick, Henry Clay, 22, 150, 160, 209, 255, 256, 275 Friedländer, Max, 163 Full Crew Law Case, 306 Fuller, Melville W., 145, 175, 176, 219 Furness, Horace Howard, 117, 283 G Gallatin, Albert, 60 Garland, A. H., 303

2]

INDEX Heverin, James C., 229 Hill, James J., 22, 167, 206, 209-12, 214, 217, 219, 220 Hinkle, David, 5, 14 Hippie, Frank K., 19 Historical Essay on Joseph Reed, A, 61 Hollingsworth, Samuel, 31 Holly v. The Missionary Society, 128 Holmes, Oliver Wendell, 36, 219, 222, 223, 243 Homestead Strike, 186, 256 Hopkinson, Oliver, 198 Hopper, Edward, 38 Home, Herbert, 163 Hughes, Charles Evans, 280 Hunyadi Janos Case, 197

Gary, Elbert H„ 263, 264 Gates, Thomas S., 190, 247 George, Henry, 19, 142, 171 Gerhard, Benjamin, 43, 46 Germantown, 6, 7, 14 Gettysburg, Battle of, 48-53 Gibboney, D. Clarence, 184 Gibbons, Charles, 38, 46 Gilder, Richard Watson, 35, 49 Gilpin, Bernard, 134 Gimbel, Ellis, 272 Gimbel Company, 300 Girard College, 43 Girard, Stephen, 12, 77 Girard Will Case, 37 Gold's Hotel, 3, 5 Gordon, James Gay, 115, 141, 199, 281, 282, 302 Gould, Jay, 119, 196 Gowen, Franklin B., 142, 239 Graham, George S., 303 Grant, Ulysses S., 88, 97, 98 Graver, Elizabeth, 2 Graver. John, 2 Gray On Perpetuities, 55 Gray, William A., 204 Great Northern Railroad, 210-12 Greelev, Horace, 39, 41 Griggs. John W., 213 Grover, M. D„ 213

I Imperial Tobacco Company, 235 Income Tax Cases, 172, 175, 212 Ingersoll, Charles, 54 Ingersoll, Jared, 29, 35, 37 Ingersoll, Joseph R., 39 Ingersoll, Robert, 74, 303 Inquirer, The (Phila.), 280 Interstate Commerce Act, 147 Interstate Commerce Commission, 212, 213, 306

J H Haas, Nelson, 14 Hammersley, Edward W., 113, 186, 247 Hanna. Mark, 208 Hanna, William B., 49 Hardirg, George, 18, 117, 199 Hare, J. I. Clark, 23, 29, 44, 46, 79, 115, 185 Harlar, John Marshall, 175, 176, 217, 219,242, 308 Harmcny School, 9, 10, 13 Harrinan, Edward H., 209, 215 Harris>n, William Henry, 4, 5 Hart, John Seely, 13 Hart, Thomas, Jr., 31, 49, 198 Harvard, 13, 17 Harvard Law School, 24-25 Haveireyer, Henry O., 160, 171, 179, 297 Hayes. Rutherford B., 98 Hazellurst, Henry, 102 Henry. Mayor Alexander, 39, 40, 49, 118 Hepburn Act, Commodities Clause of, 306

Jenkins, Theodore, 303 Johnson, Alfred, 8, 10, 15, 21, 57, 89, 92, 98, 248, 278, 286 Johnson, Andrew, 58 Johnson Art Collection, 285, 287-94 Johnson, David, 1-5, 7, 8, 10, 15, 19, 21 Johnson, Elizabeth, 2-5, 7-10, 15, 19, 21, 51, 57, 98, 250 Johnson, Ida Powel, 137, 138, 145, 235, 293 Johnson, John G., boyhood, 7-10; Harmony School, 9-10; Central High School, 12-20; office boy, 21-23; law clerk, 24-32; law school student, 4344; at Academy, 44-47; admitted to bar, 48; soldier, 49-51; practitioner, 53-55; first cases, 56-57; Rush-Reed controversy, 62-65; League Island transfer, 66, 68, 69; counsel Pennsylvania Company, 69-71; progress at the bar, 72-76; Rush Will Case, 8083; aversion to public life, 86; Panic of 1873, 88-90; marriage, 96; visits

[ i !3]

INDEX fluence, 312; scale of fees, 313; to mother, 98; home life, 99-100; appraisal by contemporaries, 315-16 cases and methods, 101-10; $100,000 Johnson, Reverdy, 146 income, 112; association with HamJohnson, Rossiter, 122 mersley, 113, with Prichard, 113, Johnson, William, 7, 8, 10, 15, 21, 57, 114; admitted to Supreme Court, 89, 92, 98, 248 117; Realf v. Real), 122-23; WhitJoint Traffic Association, 197 aker Will Case, 125-26; Holly v. Jones, Walter, 37 The Missionary Society, 128; memJudson, Oliver, 247 ber Philadelphia Club, 130; Union Judson, William F., 23, 26, 27, 45, 48, League v. Burt, 134-36; wife and 53, 55, 56, 70, 72, 80 family, 137-38; the Ladies' DecoraJunkin, George, Jr., 27, 44, 70, 80, 81, tive Art Society, 138-39; James El102, 111 verson, 140; Academy of Music, 14445; European travel, 145; accident, K 145; nominating speech, 146; cases under Interstate Commerce CommisKane, John Kent, 300 sion, 147; anecdotes and personal Keen, W. W., 19 characteristics, 146-47; Milligan v. Kellogg, Frank B., 234 Marshall, 149, 150; Frick v. CarKent, Chancellor James, 31, 60 negie, 150; State v. McComb, 150Kilgore, Carrie, 117 52; test cases, 152; Paul and ScholKnight Case, 175-79, 218, 219, 221, 239, lenberger Cases, 152-53; Original 265 Package Cases, 154; rides "dead Knox, Philander C., 199, 209, 213, 214, horses," 155; Philadelphia Rapid 218-20, 254, 275, 280 Transit Company, 156-57; collects Koecker, Leonard H., 72 paintings, 158-59; aims as collector, 159-63; anecdotes and methods, 166L 67; reflections on "Night-Watch," 168, "School of Anatomy," 168-69; Sugar Lacy, B. W., 102 Trust Case, 173-81; bar leader, 182Ladies' Decorative Art Society, 138, 139 85; a minor episode, 185-86; offer of Lady Patterson Case, 104-05 seat on Supreme Court, 187; as crossLaFolIette, Robert, 242 examiner, 192-93; P.R.R. v. Western Lajoie, Napoleon, 199 Union, 196-97; offered post as Attorney-General, 197; Reading receivLancasterian System, 12 ership, 198; Morgan v. Widener, 199; Landis' Battery, 49-51 suit for fee, 201-02; acts for Gray, Law Academy, the, 43, 44-47, 53, 134 204; closeted with Hill, 206; NorthLaw and Order Society, 184 ern Securities Case, 209-23; as priLeague Island, 66-69 vate practitioner, 224-25; divorce acLegal Intelligencer, 42, 47 tions, 226-33; Standard Oil and Lehigh Valley Railroad, 306 American Tobacco Cases, 234-44; Leland, Charles Godfrey, 26, 50, 139 trustee Wilstach Collection, 245-46; Lewis, William, 29, 37 associates, 247; philosophy, 249-50; Library Company of Philadelphia, The, portraits, 250-51; United States Steel 78-83 Corporation Case, 252-67; address Liggins, John, 19 Bar Association, 268-69; office clearLincoln, Abraham, 40, 46, 49, 132 ing house for litigation, 270-75; travLindabury, Richard V., 262 els in Europe, 275-76; at home, 277; Lippincott, J. B., 40 Hercules Powder Case, 278; death, Lippincott's Magazine, 122 278; tributes, 280-83; art collection, Littleton, William, 45, 46, 132-36 285-94; anecdotes and reminiscences, Llanfear Pattern, The, 194 295-305; total cases, 306-07; courtLowengrund, Ernest, 188, 189 room strategy and tactics, 307-12; inLudlow, James R., 115 [35 I ]

INDEX M McCall, Peter, 35, 43, 54, 78 McComb, Thomas W., 150, 151 McKenna, Justice Joseph, 265, 266 McKinley Tariff, 171, 173 McKinley, William, 197 McMichael, John, 102 McMichael, Morton, 124 MacMiller, J . J., 125 McMurtrie, Richard C., 37, 44, 79, 81, 102, 109, 174, 175 MacVeagh, Wayne, 101, 133, 140, 143 Mann, William B., I l l , 303 Marceau, Henri, 287 Mather, Frank Jewett, 287 Mercer, Rev. Alexander, 96 Meredith, William M., 37, 46, 79, 81 Mesdag Collection, 160, 161, 169 Metropolitan Museum of Art, 285 Miller, E. Spencer, 43 Millerites, 3-5 Milligan, Mary, 148-50 Milligan v. Marshall, 148-50 Mitchell, E. Coppee, 38, 48 Mitchell, James T., 44, 49, 106, 123, 309 Mitchell, Dr. S. Weir, 131 Mone's Appeal, 105, 106 Montgomery, W. W., 104 Morgan, Charles, 49 Morgan, J . Pierpont, 199, 209, 212, 219, 224, 238, 242, 255, 256, 258, 259, 264, 270, 296, 298 Mormons, 6 Morrell, Colonel Edward, 96, 98, 145, 196, 235, 276, 286, 287, 294 Morrell, Edward, 92, 95 Morris, Effingham B., 109 Morris, P. Pemberton, 44, 80, 190 N Nation, The, 213, 214 Negus, A. B., 124 Neilson, Robert H., 155 Newlin, J . Shipley, 16 New Republic, The, 178 New York Central Railroad, 305 New York Times, 280, 281, 303 New York Tribune, 52 News Is Where You Find It, 166 "Night-Watch, The," 168 Norris, George Heide, 112, 113 Norris, George W., 299, 300 Norris, Isaac, 186

[3

North American, The, 281 Northern Pacific Railroad, 86, 209-12, 216, 217, 219 Northern Securities Case, 212-22, 239, 240, 243, 281, 306, 307 Northern Securities Company, 212, 21517, 219, 221, 254, 273 Northrop, George, 72 Noyes, Alexander D., 221 O Olmstead, Edward, 36 Olney, Richard P., 172, 173 Original Package Cases, 154 Our Times, Mark Sullivan, 209n, 256n Outerbridge, Albert A., 49 P Pancoast, Samuel, 125 Parker, Alton B., 207 Parsons, Theophilus, 74, 197 Patterson, C. Stuart, 49-51, 102, 197 Patterson, George Stuart, 190, 253 Pattison, Robert E., 186 Paul & Schollenberger Cases, 153 Paxson, Edward M., 198 Peck, George R., 213 Peirce, William S., 38 Penn, William, 4, 142, 187 Pennsylvania Company, 23, 55, 56, 6672, 86, 88, 89, 92, 190, 198, 238, 248 Pennsylvania Hospital, 312 Pennsylvania Railroad, 14, 67, 134, 142, 196, 238, 239, 252, 305 Pennypacker, Samuel W., 45, 55, 75, 140, 158, 302 Penrose, Boies, 191, 256 Penrose, Clement, 49 "People's College, The," 13 Pepper, George W., 185, 186 Perkins, Samuel C., 49 Pettit, Silas W., 133 Philadelphia Club, 130, 285 Philadelphia Museum of Art, 287 "Philadelphia Plan," 238 Philadelphia Rapid Transit Company, 156, 157 Philadelphia Saving Fund Society, 86 Piatt, E. Greenough, 31 Powel, Ida, 93-96, 98 Powel, John Hare, 93 President Reed of Pennsylvania, 60 Price, Eli Kirk, 36, 37, 57, 118 5]