USA > Ohio > Hamilton County > Cincinnati > The old court house : reminiscences and anecdotes of the courts and bar of Cincinnati > Part 7
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Daniel Van Matre, I remember very well ; he having lived to a good old age, up to comparatively recent times. He was in early time and for a very long time, pro- secuting attorney of Hamilton county, and as such gave great satisfaction to judges, lawyers, and the people. He was a plain, simple, honest, honorable man, and obtained, and maintained the respect of all, during his long life of usefulness.
John G. Worthington, was a respectable lawyer, and a very complete gentleman. He early married one of the bright belles of the town of Dayton, and through her wealth, was made at ease in the world, and had little or no occasion to practice the law, but he always maintained his position as a lawyer, and a gentleman.
Benjamin F. Powers, was an elder brother of the great sculptor Hiram Powers, and came to this city from the State of Vermont in 1824, I think, and began the practice of the law, but soon became one of the pro- prietors and the chief editor of the Cincinnati Liberty Hall & Gazette, and as such was more distinguished, than as a lawyer.
Of the remaining names on the list of the old lawyers of the year 1825, I am at a loss to say anything, but without a doubt, they were good lawyers, and honorable gentlemen, good men and true.
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SOME PERTINENT REFLECTIONS-PERHAPS !
In the doings of our old courts, and things connected therewith, many noted and remarkable occurences took place, which would be absolutely impossible in these times. In the old days, things were done with more, much more time to do them in, and with the leisure afforded, judges and lawyers could afford to cultivate other sides of character, than that of the mere business lawyer, and they did so, and thus we have the field to which we have resorted-in the old times of the old court house-for our reminiscences and anecdotes. In the mere dry and sharp business transactions which occur now-a-days in the courts, there is no room for wit, senti- ment, anecdote, and-I was going to say-even principle, but it was not so, long agone. Lawyers were not mere lawyers; they were many-sided characters ; they were eloquent, humorous and witty, and wise as men, and did not swallow up everything in the straight or crooked busi- ness of the law, either in court or in their offices, or out of both. They used to cultivate the heart as well as the mind. They were men of feeling as well as of brain, and high-toned honor, and honesty prevailed for the most part among them. And thus they stood out distinguished among their fellow-citizens, and properly, and meritori- ously so. They stood up, too, for their profession, as a profession-emphatically one of the learned professions- and were not traders and shop-keepers, as most of law- yers necessarily are in modern days. In great cities like New York it has become so, that the courts are but wholesale jobbing houses of the law, while the offices of the lawyers are but retail shops of law merchandise. During a five years' sojourn in that city, I found it
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emphatically and eminently so, and I came to the con- clusion that the administration of the law, and the practice of the law in New York, were but the law gambling oper- ations of a great law Wall street, and judges and law- yers were mere law brokers.
Now, our courts and bar here, are not quite so bad as that-not so bad as those of New York City-but I am afraid we are fast becoming wholesale jobbers and retail shopkeepers of law, and have no time to indulge in any- thing else ; certainly not in forensic eloquence ! Where are the orators now at our bar? Why, we have not time to listen to them, much less to cherish and cultivate them, and a flight of eloquence at the bar now-a-days would be looked upon and regarded as a flight of a fugitive from the legal propriety limits-the fetters of the business of the law. It would seem that the thing can not be helped as bad as it is, and we must be satisfied to let smartness, cunning, shrewdness, and business tact, and art prevail over learn- ing, knowledge, and genius in the law. We must submit to the inevitable, and so far as lawyers are concerned for their success, we must, like they do with the leg-itimate drama-respect, admire, and regard legs as over-reaching brains. So goes the world; and we of the world, can not help it.
LAWYER FESSENDEN AND THE CASE OF ADULTERY.
Who that ever knew him, will ever forget jolly, hum- orous, witty, convivial Ben Fessenden! He came to Cincinnati from "way down East"-and was, I be- lieve, an elder brother or a cousin, or something of Senator Fessenden. He emigrated, or immigrated, to practice law here in Cincinnati, and he was a well-read and a deep red lawyer sometimes. His humorous and
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witty sallies in court were frequently the occasion of much amusement and merriment with court and bar. Whenever it was known that jolly Ben was going to address the court or jury, you might be sure there would be a strong force of listeners inside and outside of the bar. He was a fellow of infinite jest. I knew him well, and never knew him to " entangle justice in her net of law." But, on the contrary, he was always engaged in threading the labyrinth, so that we would be led to exclaim after hear- ing him,
" Law does not put the least restraint Upon our freedom, but maintain't ; Or if it does, 'tis for our good, To give us freer latitude "
Well, Fessenden was one day engaged in defending a weak and winsome client for the heinous offense of adultery, brought against him upon the persecuting prose- cution of his wife, who was so large, fat and portly that she would make two or three personalities of her husband in standard weight. The particeps criminis of whom the ponderous wife was so deeply jealous as to bring her husband to law for her love, was a little, wee bit of a woman, and not particularly distinguished for parts, or appearance. Fessenden grew very eloquent in the proper and spirited defense of his client, and as he progressed, his eloquence largely accumulated. Both the little woman and the big, weighty woman, and the prisoner, her hus- band, were in the court room, sitting before the jury and the court, when all at once, bursting forth in rhapsody, and pointing out with long fingers to the different indi- viduals, Fessenden exclaimed, "Gentlemen of the jury, it cannot be; as the countryman said, 'it's agin human natur"-it cannot be,-my client there is not guilty, can-
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not be guilty-it's absurd ! "Who on this mountain, (pointing to the large, fat wife) would leave to feed, and batten on this moor "-(overshadowing the poor, little, trembling woman with his spread-out hand) " who tell me -who? My client, gentlemen of the jury, is no such Nebuchadnezzar ! He feeds on no such grass !"
Ben's eloquence and wit prevailed, and he and his client were rendered happy by a verdict of "not guilty." In response to " Who, tell me who?" his client was, not at all, the man who would leave the mountain to go to grass on the moor.
BEN FESSENDEN AND ADAM RIDDLE.
This "Who" reminds me of another anecdote of bountiful Ben Fessenden, in his funny career at the bar. In the trial of an interesting suit at law, he had for his opponent Adam Riddle, who, as everybody used to know, was peculiarly and particularly distinguished for being a good lawyer and knowing no law. He had his ways and his by-ways, and either of these were something that "no fellah could well find out.' But he was accounted a pretty good advocate before a jury, and this particularly for his suaviter in modo, and most gracious and winning ways. Well, he was in the case, Ben's opponent, and he was about to carry all before him. During his finale to the jury, he exclaimed in triumph, "Who, gentlemen of the jury, who could have done this but the client of my opposing counsel? Who-who-WHO !!! " And Riddle, sat down, as he thought, to enjoy his triumph. But Ben was after him, and he began to the court and the jury : "May it please the court and gentlemen of the jury, my learned friend is a riddle to me ; he is, indeed, A-dam Riddle, as the sign on his law office, as well as
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his speech here, show. But before I get through, although he is such a poser with his 'who-who-WHO!' I will give him an answer that will riddle his case for him, if he has not already sufficiently riddled it himself. He puts me in mind of a celebrated French horn musi- cian whom I once saw and heard blowing out his brains, through the sinuosities of his multifariously crooked horn. It was one time, in the great Music Hall of the town of Boston, that I was present, with a very large and numer- ous audience, listening to a great oratorio of sacred music, performed by a thousand voices and a great, big orchestra of instruments. The horn player was an object of interest, from the interest and enthusiasm he displayed with his blow and blast.
"The choir got along very well, and at last they, in their singing, accompanied by the instruments, reached the sacred exclamation of ' Who is this King of Glory? Who, tell me, who?' The phrase of the music was sung quite loud, loud enough, abundantly loud, and our horn player was terribly exercised and excited with his horn. It was necessary at the phrasing of 'who, tell me who?' for him to blow a blast from the horn. And he did blow -oh ! such a sound, such a terrible and terrifying blast, that the labyrinthal crooks and sinuosities of his big, brazen French horn, were blown, completely straightened out, and nothing was left of them. His blasted and blasting ' who, tell me who?' as interpreted by him on his horn, was entirely too much for the horn. It proved the complete de- struction and annihilation of its bends and its crooks. So with my friend and opponent-his last blast of ' who, tell me who?' has blown straight out all the crookedness and sinuosities of his case, as full of brass as they are. His case is completely riddled ; his hope and horn are done
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for, and he must take another horn-of the dilemma,- or resort to his horn-books."
BEN FESSENDEN'S STORY OF THE JUDGE.
Ben Fessenden was a clever gentleman in both the English and American senses. In and out of the bar, he could always tell a good, merry anecdote. He used to tell me the following : There was a certain judge, of this city, whom I will not name, distinguished for his vanity, self-importance, and marked baldness of rugged pate. One day, Ben, in talking to him, persuaded him that he ought to have his head examined by a phrenolo- gist. Phrenology had just become one of the sciences in those days. The judge, flattered by the attention of Ben to his cranium, consented to go to a phrenologist. Fessenden took the vainglorious judge to a certain blind phrenologist, well known for his skill at that time, and placing the bald head of the judge under the manipula- ting fingers of the blind man of science, both waited results. The phrenologist felt over and over again the polished surface of what was placed under his hand, and at last exclaimed : " If I was not plainly assured by you, Mr. Fessenden, that this which I am now manipulating was the head of a human being, I would certainly take it, by my delicate and scientific sense of feeling, to be the uneven variations and irregularities of the deviating surface of a squash, or a pumpkin, or a gourd!" Exit judge!"
BEN FESSENDEN "USED UP" BY A WITNESS.
One funny incident occurred in the days of the old court house somewhat at the expense of "rare Ben : "
There was occasion, it will be remembered, to allude
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to the fact that occasionally our friend Ben, in his conviv- iality became the deep red lawyer and counselor, and he never took pains-like some of our inebriate moderate drinkers-to conceal it, for
" His heart was open as the day, His feelings all were true,"
And when he drank, he did it openly and above board. Ben was one day engaged in the defense in a divorce case in which the plaintiff wife charged the defendant husband with "habitual drunkenness for three years," according to the statute, and for that cause prayed the court to grant her a divorce. Habitual drunkenness is well known to judges and lawyers, if not to the public, a very difficult matter to prove. In the first place, it is hard to define. The statute itself does not define the term, and courts and lawyers in divorce causes have very great difficulty in knowing and understanding exactly what habitual drunkenness, by the statute, means-and what it is, in fact. The puzzling question is: How drunk must a man be, and how often, to constitute habit- ual drunkenness? It is not exactly the question of the quantity of beer or liquor a man may drink, for some can stand gallons-barrels of it-while others can not stand more than a glass, and not even that. Nor yet is it the quality of the beverage that may come into the perplexing question-the matter is drunkenness, and not only that, but habitual drunkenness, and this is hard for any one to find out, particularly when he is on the bench, or practicing law. In the case of divorce before the court, in which Ben was engaged for the defense, to stop the plaintiff from procuring a divorce, a hard-headed and hard-hearted witness, as Ben was forced to think, had already testified very hard and strong against the defend-
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ant, Ben's client, on this puzzling subject of drunkenness, and now Ben was engaged in cross-examining the wit- ness as to really how drunk the defendant was when the witness saw him, and he had already rendered the wit- ness exceedingly indignant by his repeated questioning as to the how, and Ben continued, pertinaciously :
"Now, witness, I must ask you again, for the proper information of the court, as well as my own, as to the drunkenness of my client. You say you have seen him drunk a great many times. How often have you seen him drunk?"
Witness .- Almost every time I saw him.
Ben .- How often was that?
Witness .- Well, I didn't keep account of the times, but I should say at least once a week, at all events.
Ben .- Only once a week, eh? Well, that is truly moderate. And how drunk was he then?
Witness .- Well, Mr. Fessenden, it is impossible for me to say how drunk he was. How can I tell how drunk he was? . He wasn't sober, I know this well ; but as to how drunk, how can I tell how drunk a man was?
Ben .- But you must tell, notwithstanding, and we don't want any of your reflective philosophy. And now I ask you again, and want a direct answer, how drunk was the defendant when you saw him only once a week?
Witness .- Well if I must make an answer, I would say the defendant was about as slippery and drunk as you were when I last saw you at the " St. Charles," on Third street, the other day.
This was sufficient for Ben, and ended the cross- examination at once, to the somewhat seldom discom- fiture of Ben, and to the infinite amusement of the Court, who did not laugh, however, but smiled, and the lawyers
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of the bar, who did laugh a little, and to the audience, who broke out loudly and boisterously. Ben, however, soon recovered himself, and, imitating the Court, went out from the court room and the court house for a while, and smiled, as he was sometimes wont to do, and returned and won his case for his client, as he was also frequently wont to do.
LAWYER TOM STRAIT AND BEN FESSENDEN IN COLLISION.
I am happily reminded of the story of Lawyer Tom Strait and Lawyer Ben Fessenden encountering each other in a knotty and naughty steamboat collision case. In early days the Ohio river was a stream of great importance- to Cincinnati everything, almost-and steamboats and their appertainings occupied much more of public atten- tion, lawyers' attention, judges' attention, and juries' attention than they do now-a-days. The docket, of our old Court of Common Pleas contained many, many cases involving steamboats and their relations. Collisions of the many steamboats, plying the Ohio, used frequently to occur, and, of course, steamboat collision cases were almost as plentiful as blackberries, in the records of the old courts, and of all cases they were by far the most complicated and troublesome to the Court, the juries, the witnesses, the, parties, and the lawyers; and the only persons they were not troublesome to, were the auditors in the court room, who always were numerous, and looked on, and enjoyed the complex troubles of all con- cerned in the trials! There was this peculiarity about all steamboat collision cases: It was always hard, a matter of the most extreme difficulty, to find out from the testimony what were the real bona-fide facts of the case. The partisan witnesses on either side were always pre-
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pared to, and always did swear right against each other. Sometimes there would be twenty or thirty witnesses who would testify directly for one steamboat, and twenty-one or thirty-one others who would swear point blank for the other steamboat, so that there was generally no telling which was in fault for the collision, the plaintiff steamboat or the defendant steamboat. In one of these cases before the court, Strait and Fessenden were contesting, and hotly contesting, almost to fever heat. I forget now the names of the steamboats they respectively represented as lawyers on either side, but it makes no difference. The case was almost equally balanced in the testimony, and it was hard, very hard to say which side had the advantage. The evidence was all in, and Mr. Strait made his argu- ment on the facts to the jury. Tom Strait was a plain, blunt man-perhaps after the style of Shakespeare's Mark Antony-and before a jury he was distinguished as an analyzer of the facts of any case in which he was engaged. He well knew this reputation and distinction of himself, and, on this occasion, after getting through his argument before the jury for his steamboat, the plaintiff, he concluded his speech about thus :
"And now, gentlemen of the jury, I have given you the facts of this case. I deal in facts ; I am a man of facts ; and I defy my learned friend, my opponent, to contradict them. On these facts which I have spread before you, gentlemen of the jury, I confidently rely upon a verdict at your hands." And Tom Strait sat down.
Now plentiful Ben arose, and he thus began in medias res:
"Gentlemen of the jury, I am fully aware of the fact that my learned friend for the plaintiff gives you his
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facts of this case. He is, as he so loudly and triumph- antly claims for himself, a dealer in facts ; yea, a double dealer in facts ! He is, as he says, a man of facts ; yes, gentlemen of the jury, a man-u-facturer of facts, for he makes up all of them, just as he goes along. He might justly be styled the great factor in this case, or, better still, the fact totum! I do not wonder that he lies so much in his bed of facts, and re-lies upon you for a verdict."
Ben Fessenden gained his cause.
BEN FESSENDEN AND JOE FALES-JEO-FAILS !
Old Stephen Joseph Fales was a learned man of the law, and was a faithful practitioner. He was a perfect gentleman in manners; so much so that he achieved quite a reputation for that. He was sometimes called, on account of his name, Joe Fales, the begetter and author of the English Statute of "jeofails." It is in my mem- ory that legal witticisms frequently occurred among the lawyers at the expense of our quondam friend, on account of his name. On one occasion, Ben Fessenden was ask- ing for an amendment to the declaration in his case, and Mr. Fales happening at the time to come inside the bar, Ben exclaimed to his adversary, "It is all right now ; fcofails is here, and, according to him, I must have my amendment," and he got it, his adversary being convulsed with laughter, and unable to overcome the legal and per- sonal sally, for it was true, as pronounced by the Court, that according to the statute of jeofails, Ben was entitled to his amendment, the statute duly providing for the cor- rection or amendment of any oversight in pleading or other proceeding in law, and Ben, according to the meaning of the word jeofail, had duly acknowledged his
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mistake, by declaring : " I have failed by an oversight on my declaration."
BEN FESSENDEN'S NEW APPLICATION OF 'SUICIDE.'
Fessenden was engaged as a lawyer for the prisoner in trying a case of grand larceny. His client was indicted for stealing a number of hogs and killing them, of the value of fifty dollars, and Ben was defending him, and he thus concluded his speech for his client to the jury :
"So you see, gentlemen of the jury, my client is not guilty of stealing, and killing these hogs. To convict him of hog-stealing and killing hogs, would be to convict him of suicide, which can not be, by law."
For some time, the judges and lawyers did not see the point of the pun, but the Latin of some of them helped them at last, and they then saw that suicide by Latin derivation of the word sus-a hog-could mean the killing, of a hog as well as the killing of one's self. It was certainly a new pun-stirring application of the word " suicide," and it was classical into the bargain. It was certainly hog Latin, and very proper in this city of Porkopolis.
BEN FESSENDEN AND JEEMES RILEY.
Jeemes Riley, as he was sometimes called in addition to his other remarkable eccentricities, had peculiar eyes, and one of them more elevated than the other, and out of which he always looked at you, and took his view of various objects and subjects, too, I sup- pose, was distinguished by a peculiar cast, and the most singular of squints, so that when looking with it, he seemed, as the boys have it, looking always, "two ways
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for Sunday." He and Ben Fessenden were on opposite sides in a case, and the drawn-out prolixity of the former, was in continual contrast with the ready wit of the latter. The slowness of Riley roiled the rapidity of Ben, and sometimes he said things not altogether polite or discreet. Once Fessenden interrupted Riley, and began to address the court.
"Mr. Fessenden," said Riley, " don't go off half- cocked, if you please, you see things only with half an eye."
"Do I?" replied Ben. "If I go off half-cocked, you always go off all cocked, for you always see things with a ready cock in your eye."
LAWYER GAINES AND HIS DIVORCE CASE.
A good story about Henry P. Gaines, Esq., one of the old lawyers, was frequently alluded to, at the bar. He was a man of learning and education, and a lawyer, too, of talent and ability, but, like "mine ancient Pistol" of Shakesperian memory, he was some- how or other, given to low company and low tastes. This probably arose from his dissipated habits, for he was a victim to them, in more ways than one. He had a little, old dingy law office in Foote's row, on the the north side of Third street, east of Vine, and there he used to eat, and sleep, and practice law, and do perhaps, many and curious things. He was of portly personnelle, about six feet high, and rounded-belly figure, so that in looks at least, he was quite a big man in the street, and in any kind of bar. His face was broad and heavy, distinguished by a large, full, square nose, and quite small, twinkling eyes. This nose, while the face was always red, was of a dark, scarlet color, and reminded every one who saw
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him, and was acquainted with Shakespere, of Falstaff's burly companion, "Bardolph." He kept a continual and continuous beacon light to all way-farers, on the broad end of his nose, instead of in the poop; and thus, too, was a standing and walking lecture for the temperance folks, who might have pointed with pride to Gaines' nose, and said: 'Behold the results and the effects'-this last especially, if he and they had been in his office at the time. Gaines, though, was a good fellow, and as Fes- senden was only occasionally the deep red lawyer, Gaines was always so ; and among his brethren he obtained and sustained fully, the emphatic sobriquet of the " deep red lawyer " of the Cincinnati bar. Among his deficiencies, too , was a great want of hearing, especially when he didn't want to hear ; and on account of this deafness he was sometimes subjected, and sometimes subjected others, to curious positions and situations, and complications. Once upon a time, old Gaines, for he was old and vener- able, was engaged to a woman, not for marriage, but divorce, and was, in the trial of her case for that purpose in the Court of Common Pleas, before the presiding judge and his three associates. The charge in the woman's complaint against the husband was adultery, and Gaines and his deafness had a hard and tedious time with the judges, the opposite attorney, his client, the wit- nesses and himself. On the close of the testimony, as all cases of divorce used to be, the case was submitted to the decision of the court without argument, and the presiding judge declared and declaimed, quite loud enough :
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