CHAPTER II

KOKOMO DAYS--LAWYER AND CITIZEN

I

As we have seen it was Kern’s intention at one time to begin the

practice of his profession in Iowa--a plan that was abandoned when the

state went overwhelmingly for the “radical program.” Before leaving Ann

Arbor we have noted his plan to establish an office at Tipton, Indiana.

The process of reasoning which soon eliminated Tipton from consideration

and led to his opening an office in the county seat of his native county

about the first of May, 1869, when he fell seven months short of his

twentieth birthday, is set forth in the following letter to Morrow, then

at Ann Arbor:

“Since I came home I have done nothing and yet have been awfully

busy too. I was at Tipton one day last week looking for a location.

That is, I went there for the purpose of looking around. As soon as

I got off the train and cast a glance up the principal street I

persuaded myself that Tipton was no place for an LL. B. A stump

puller or a mud dauber might do an extensive business there. I will

open a law office in Kokomo in about ten days. My office will be in

the Nixon block. I will go in partnership with John W. Kern, a

young man of promise.

“Our folks are all going on a visit to the Old Dominion to be gone

all summer. They will start in about a week from to-morrow, and I

will be left a disconsolate orphan. In selecting Kokomo as a place

wherein to practice I pondered long and well over the matter, and

it was only from words of encouragement from a number of the

substantial men of the county that I determined. I don’t expect to

do much at first, but by a close attention to my business I expect

in a few years to make my expenses. The people in this part of the

country are all lively as crickets.... I only got my books day

before yesterday--just two weeks on the road.... The work on the

new court house has commenced again. It will be a magnificent

edifice....”

The office was opened about the first of May with a complete new set of

the Indiana Reports which his father had presented him with. “I still

remember how his eyes sparkled,” writes Morrow, “when he told me that

his father intended to give him a complete set of the reports.” Two

months later he had less modest notions of his possibilities in his

profession. He had participated in several cases and gained confidence,

both in his ability to get business and his capacity to handle it. In a

letter to Morrow, written early in June, he discloses the budding of

social aspirations and for the first time mentions the girl who was soon

to become his wife:

“We are now having delightful weather, good roads, and lots of fun.

The society in Kokomo is much better than it used to be, and is

such that a man who mingles with it much inevitably enjoys himself.

I have renewed my old acquaintance with the ladies, and yesterday

two of them, Misses Whenett and Hazzard, came up and spent an hour

in sweet communion with me in my office. I have an invitation to

call on both of them and will certainly avail myself thereof.

Although my practice is not so lucrative as I could desire, it is

much better than I anticipated when I commenced. I have helped try

two cases in the circuit court, three in the mayor’s court, and am

doing a good business in collecting. I am at least making a very

comfortable living. I find that I am somewhat deficient in the

practical part of the law, but by hard study and close observation

will remedy that before a great while. I am convinced that Kokomo

is the best opening for a young man in the west. There is a vast

amount of litigation in the county and but comparatively few

lawyers. The only trouble I have here is that there is a

disposition on the part of some young men in this town to make my

office their headquarters. There is one of these d--d lazy hounds

sitting here now--making himself more at home than I do. If he

doesn’t leave in fifteen minutes I will order him out. The initials

of this name are X-Y-Z--too trifling to pound sand.... That young

man I spoke of a moment ago has just taken his leave. Darn his

infernal loafing carcass. He didn’t receive much comfort this

morning....”

The reference to the disposition of young men to make his office their

headquarters probably reflects an indignation he did not really feel.

From the moment he opened an office in Kokomo he became the idol of the

younger element, and his popularity with “the boys” was to be invaluable

in establishing his leadership in politics and his popularity at the

bar, but to carry with it disadvantages due to the conviviality of the

town and times. It was before the days of clubs, and during the first

ten years of his practice his office was made to serve as a club for the

younger element, young lawyers, doctors, and others with no such fixed

means of support. Here in the evening and on Sunday afternoons the clan

regularly gathered to solve the problems of society, indulge in chat,

and games. Always a social being, young Kern enjoyed these afternoons

and evenings, and friendships were made on these occasions that remained

steadfast through life.

From the moment he opened an office the young lawyer was remarkably

successful. He was generally looked upon by the people of Howard county

as a genius. In eloquence before a jury he surpassed the older members

of the bar. And the winsome geniality of his personality extended his

acquaintance and increased his popularity. He was followed about by

groups of young friends and the older element not only conceded him to

be rarely gifted, but gave him every possible encouragement. The town

was not so large that the proceedings of the courts were not the

subjects of conversation and the lawyer, especially if young, who could

make juries laugh and cry, and play pranks on court and bar, and get

verdicts, became something of a hero. During the first year or two the

most of his cases were tried in the justice of the peace courts, which

were then far more important than they are to-day. Here the race went to

the man who knew human nature, possessed an eloquent tongue, a quick

resourceful mind, and plenty of assurance. Having in mind this period of

his career, C. C. Shirley, at one time a member of the law firm of

former United States Attorney-General Miller at Indianapolis, but

previous to that a member of the Howard bar, writes:

“Instinctively I knew him then as one who had been touched with the

fires of genius. I think every one who knew him at that time looked

upon him as strangely gifted, although some of those who recognize

his unusual gifts were inclined to poohpooh their importance. They

spoke of him as the ‘boy wonder,’ the ‘infant prodigy,’ etc., and

one particular characterization I heard when I was a small boy,

which has stuck in my memory, I recall. Kern had just been admitted

to the bar and had made an argument in a jury case which was highly

praised and caused much comment among those who knew him well and

naturally were proud of his quick success as a lawyer. I don’t know

that the case itself was of much importance, but it was of a

character to furnish a good vehicle. It was a neighborhood

sensation. The particular note of derogation, I recall, was the

remark of a village wiseacre to this effect, ‘Oh, John Kern is just

like a wasp--bigger when he was born than he will ever be again.’

Rather a fine tribute, after all, although unintentional and

unconscious, since it shows that even then skeptics had observed

that he was not at all like a boy of twenty--possibly twenty-one,

but not more. As for myself, I looked upon him as already a great

man and never missed a chance to hear him speak, either on public

occasions like old settlers’ meetings, at which he was often heard,

or in neighborhood lawsuits before justices of the peace, which was

the only forum I then had a chance to visit.

“The interests there involved now seem pitifully trivial, but they

often meant almost life and death to the litigants--the family

cow--or the chattel mortgaged cook stove, or the month’s wages. And

on just such occasions as these, when humor or pathos were so

closely blended, Kern, at that time, was facile princeps among the

lawyers of the county, though he was barely of age. I know the

impression he made on me was that his client was always right and

much wronged by the highly reprehensible persons on the other

side.... I learned that his wonderful skill in marshaling the facts

and circumstances, added to his real genius for pathos, ridicule

and invective, when these weapons could be used to advantage, were

often quite as much to be feared as the merits of his case. He knew

when to employ these weapons and never made the mistake so

frequently observed of resorting to either unless there was

something in the case which made it certain he would ‘get away with

it.’ He avoided the obvious resort to such expedients--indeed he

never seemed to employ them at all. This is what made him so

effective when he did use them.”

That with all his precocity he was still essentially a boy during the

early days of his practice is illustrated in a story affecting Rawson

Vaile, a leader of the bar, who had been editor of the _Indianapolis

Journal_ before the civil war. Mr. Vaile was a polished gentleman, an

Amherst graduate, something of an exotic for the time and place, who

bore himself with great dignity, dressed immaculately, and always wore a

silk hat. One day in court--the court room crowded with Kern’s young

followers--while the young lawyer was in the midst of an argument to the

court, he observed on the table before him the silk tie of the opposing

attorney. Simulating much excitement, he brought his clenched fist down

upon Vaile’s cherished hat with such force as to mash it completely. The

young men in the court room who knew that it was not accidental, but a

carefully planned diversion for their benefit, roared their approval,

and so great was the indignation of the court that but for the splendid

acting of Kern in assuring the court of the accidental nature of the

incident he would have been fined for contempt.

In the little cases in the squire’s courts he fought as stubbornly as he

ever did in later life in the federal courts of the country. One case--a

suit in replevin over a red shawl--is still remembered because the

tenacity of the boy lawyer cost the defendant $700 before the case was

closed. Before he had been in practice a year, if he was not the ablest

lawyer at the Howard bar, he was easily, among all the lawyers, the idol

of the multitude.

II

During the first year or two at the bar Kern was not giving his

attention wholly to the practice of his profession. In less than a year

he had taken his position among the political leaders of the community,

and from that time on during his fifteen years in Kokomo his political

and professional careers were so interwoven, and he distinguished

himself to such a degree in both, that I shall, for the sake of

continuity, treat of his political activities in a separate chapter.

Even politics and the law did not consume all his time. As we have seen

in his letters to Morrow, he had taken a keen interest in the

“feminines” from the moment of his arrival in Kokomo. This interest soon

centered on Anna Hazzard, daughter of a well-to-do business man of the

community. The nature of his wooing is indicated in an incident still

remembered. On the occasion of a Sunday school picnic given by the

Baptist church of his native village, he drove with Miss Hazzard to

Alto, and finding a big cake offered for sale to the highest bidder, he

determined that the prize should go to his partner of the evening. The

contest was a lively one, but the young lawyer met all competitors with

a raise, and the result was that he secured the cake for the neat sum of

$30.

It was soon after this that he announced in a letter to Morrow that he

had bought “the Stewart house” on Main street for something over $1,600,

his father going security, and with some show of pride described it as

“one of the prettiest pieces of property in town.” “This,” he adds, “may

look to you like business. Well, it does.” And in a letter to Morrow

October 18, 1870, he concludes: “Give my regards to Swartz and Stringer.

Tell them that on the 10th of November all that is mortal of J. W. K. is

to pass away, as that is the day the event takes place which tears him

from the realms of single blessedness.”

_The Kokomo Tribune_, in announcing the marriage, which took place at

the bride’s home, said:

“Notwithstanding the ultra Democracy of John, there is a

whole-souled manner, a generous style and an earnestness about him

that has compelled admiration. Besides, Mr. Kern has more than

average ability. If he shall continue to be a student, as we know

he has been for several years, he will gain eminence.

“What everybody says must be true. We have never heard a single

person speak of the bride except in the highest terms of praise.

She is intelligent, domestic in her habits and preferences and very

good.

“Why should not the life of such a couple be blessed and blest?

They have the very best wishes of every acquaintance.”

A rather unusual announcement, but very gracious considering that for

three months before the same paper had covered its editorial page with

vicious attacks on young Kern the politician.

III

After the election of 1870 and his marriage the young lawyer went

forward by leaps and bounds in his profession. In the fall of 1870,

before he had reached his majority, he was employed as special

prosecutor in a sensational murder case involving a prominent family of

Kokomo. Before this Kokomo had suspected that he was a brilliant

criminal lawyer. Afterward it knew it. For in this case the youth of

less than twenty-one found himself pitted against two of the giants of

the Indiana bar, Thomas A. Hendricks, his political idol, and Major

Jonathan W. Gordon, considered by many the greatest criminal lawyer and

advocate who ever practiced in the courts of the commonwealth. It is

related that during the trial, which was held in an adjoining county,

Kern became careless in his attendance in court, and there was a

disposition to consider him out of the case. In indignant mood he

sauntered into the court room just as an argument as to the

admissibility of evidence was being made by both Hendricks and Gordon.

Much was involved in the point and the two legal giants had carefully

prepared for the battle. At the conclusion of their arguments Kern

arose, without having looked into a single book, or left his seat after

hearing the issue, and delivered what was considered one of the most

convincing arguments heard in the case, and the court sustained him.

After that he took part in all the arguments that arose, and always with

brilliant success. At that time he made of the two great lawyers pitted

against him life-long friends and admirers. Hendricks took him aside and

with a great show of interest advised him as to his course, and it was

on this occasion that the great politician made the prediction that “the

time will come when that young man will be the leader of the Democratic

party in Indiana.”

From that time on he was engaged on one side or the other of every

murder case and of most of the important criminal cases tried in Howard

or the adjoining counties. He developed with remarkable rapidity into a

great trial lawyer. His eloquence, his knowledge of fundamental

principles, his quick grasp of the situation, made him a dangerous

opponent for the most experienced. In those days he was careless in the

preparation of his cases. It was said of him that he could go into a

case with one day’s notice and apparently be as well prepared as though

he had given six months to preparation. Judge Harness, his last partner

in Kokomo, found him “a master in marshaling his facts and in getting

everything out of a case there was in it--and frequently much more.” He

was an expert in handling witnesses, especially in cross-examination. He

was dramatic, resourceful, a master of strategy. In one case where his

client was accused of having stolen a pocketbook, he secured a wallet as

nearly like the one in question as possible, and presenting this to the

prosecuting witness pressed him for a positive identification. The

witness walked into the trap and identified the substitute pocketbook

positively as his own, on which Kern presented the pocketbook in

question, thereby putting the prosecution to rout. In another case he

was positive that the prosecuting witness was lying and he carried

through a fine bit of dramatic acting with the desired result. Without a

particle of previous evidence of the witness to rely upon, he

theatrically opened the drawer of the desk before him and pulled out a

roll of blank paper. Holding this in his hand and looking the witness in

the eye he demanded fiercely--“Did you not on a certain occasion

testify so and so in this matter?” The witness, frightened at the manner

of the lawyer and suspecting that he had been trapped completely, wilted

and confessed that he had testified differently before.

While capable of tricks of this nature he was not known as a “tricky

lawyer” in the usual acceptance of the term. He was scrupulously ethical

from the day he received his first case. This knowledge of human nature

which made him a power in cross-examination made him almost irresistible

before the jury in argument. Here he was the master. He ran the gamut of

the emotions, passing from wit and humor to pathos, and then to satire,

and then denunciation, keeping the jury in laughter or tears. Often he

was able to literally ridicule a case out of court.

During the Kokomo days when he was prominent as a criminal lawyer he was

at different times pitted against many of the giants of the bar. To

attempt an enumeration of even the more prominent cases would be

irksome. Strangely enough some of his greatest speeches in criminal

cases were for the prosecution. He was of such a kindly disposition, so

easily touched by suffering, and his sympathies were so readily reached

that among the leading criminal lawyers of those days he seemed the

least adapted to the role of prosecutor, and yet he probably figured

more frequently as prosecutor than any of the others. The older people

of Tipton county still remember his powerful argument and remarkably

forceful peroration in closing for the prosecution in the murder case of

State vs. Doles in Tipton in 1882. But a more interesting case is that

of State vs. Hawkins, in which he appeared as special prosecutor at

Kokomo in what was probably his last great criminal case in his native

county, in 1885. Young Hawkins had been attentive to a young woman who

had been taken out for a drive into the country by one of his friends

and insulted. On returning to town the girl hastened to Hawkins with the

story and without more ado he armed himself and went in search of the

friend. After a few words Hawkins drew his gun and shot his victim down

in cold blood. The family of Hawkins, realizing the seriousness of the

situation, employed Cooper & Harness and O’Brien & Shirley, leading

local lawyers, and instructed them to engage some famous criminal lawyer

from Chicago or Indianapolis. Because Senator Voorhees had been

remarkably successful in murder cases involving wrongs to women, he was

engaged as the leading lawyer for the defense. Such vigorous steps to

free the murderer of his son led the father of the victim, who had

befriended Kern in his younger days, to engage him as special

prosecutor. The case attracted state-wide attention. There were

circumstances in the case differentiating it so radically from the

cases of Mary Harris and Johnson that Voorhees was considerably

embarrassed, but the matchless forensic orator exerted himself to the

utmost. The closing arguments of Voorhees and Kern were made the same

day, the older man speaking in the afternoon with his customary

eloquence to a court room packed to suffocation, with great crowds

packed tightly in the corridors outside and down the stairway. Kern

closed at night in the presence of an equally great crowd. Never,

perhaps, did he speak with greater power or eloquence. In the early part

of his argument he turned his batteries of ridicule upon Voorhees in an

effort to overcome the prestige of his name. So keen was this ridicule

that Voorhees, hardened though he was by the blows of innumerable

forensic battles, and until then, a warm friend of the younger man,

squirmed uncomfortably in his seat, and turning to one of his

co-counsel, asked, “Is he trying to insult me in this community?”

Assured to the contrary, he settled back in his chair for a while, but,

unable to stand it longer, he retired to the judge’s room, where he

remained during the rest of the speech. “Mr. Kern,” writes A. B.

Kirkpatrick, then prosecuting attorney, “was at his best and held the

jury and audience spellbound as he swept everything before him by his

irresistible logic and eloquence. At its conclusion, Senator Voorhees

said with a qualifying adjective that it was a shame to have a man like

John Kern make the closing speech in such a case. Kern easily won the

laurels over the senator.”

The defendant was found guilty, and there are reasons to believe that

Voorhees never forgave Kern’s ridicule of him, and in time found a way

to make his displeasure felt.

During his Kokomo days the bar of Howard and surrounding counties, while

having its full share of backwoodsmen, was strong in a number of

exceptionally able lawyers. Kern’s practice extended over Howard,

Tipton, Grant, Miami and Cass counties. In those days he frequently

crossed swords with D. D. Pratt, Horace P. Biddle, Judge Nathaniel R.

Lindsay, McDowell Van Devanter, father of the present justice of the

United States Supreme Court, Col. Asbury Steele, R. T. St. John, Joseph

A. Lewis, Nathan Overman, Joel F. Vaile, now the leader of the Denver

bar, Dan Waugh, and of course all the leaders of the Howard bar. As a

criminal lawyer he surpassed them all and held his own with the greatest

in the state. “As a criminal lawyer,” writes A. B. Kirkpatrick, “Kern in

his prime was perhaps not excelled in Indiana. I have seen Senator

Voorhees, Major Gordon, John S. Duncan, Henry N. Spaan and Major

Blackburn in the trial of criminal cases and in my opinion none of them

excelled Kern.”

Such was his status professionally during his Kokomo days.

IV

The Kokomo of Kern’s time was one of the live-wire towns of the state.

He has himself described it in his address at the James Whitcomb Riley

birthday dinner many years afterward, when he said: “And where did I

first meet Riley? Where do you suppose I met him? Why, in Kokomo, of

course! Where else could I have met him? What was he doing in Kokomo?

Why did he come to Kokomo? Because the afflatus was in Kokomo in those

days. The divine afflatus, the prophetic afflatus, afflatus in unbroken

and original packages; some in broken and aboriginal packages.”

When the sign “John W. Kern, Attorney at Law,” was hung out in 1870

there were no factories as now and no artisan class. It was above the

average of county seats at the time and yet they were just beginning to

build streets and it was not an extraordinary sight to see wagons mired

in the thoroughfares. There were no clubs, but the “poor man’s club” was

all too much in evidence, and the Clinton House, standing on the present

site of the Frances Hotel, was a favorite gathering place for the

gossips. It was a paradise for the gambler--the happy hunting grounds of

the sporty element who flocked from afar, flamboyant in its cheap

finery, unafraid of the law or the authorities, plucking the innocents

without let or hindrance, crowding the “poor man’s clubs” with

boisterous company. And just beyond this element in a sort of a

mysterious haze loomed a more sinister element supposed to be engaged in

transactions frowned upon by the laws of state and nation. This was the

situation during the first twelve of the fifteen years of Kern’s

residence in the town. Then something happened that brought about a

cleansing. For many years the most powerful citizen, politically, among

the lower strata was a physician, who was highly skilled in his

profession, and known professionally over the state. He never charged

the very poor for his services and thus he ingratiated himself into

their affections, and he exercised a sway over the sporty element which

was long hard to analyze. Many feared him without knowing why. One day,

while mayor of the city, the police were informed by a traitor in his

camp, who apparently feared him, that he proposed to burn the flour mill

belonging to one of his enemies, and carry a leaking sack of flour to

the home of another of his enemies, feared by the doctor, with the view

to getting him out of the way by way of the penitentiary on the charge

of arson. The police appeared at the mill as the doctor emerged with his

sack of flour, and in his attempt to escape he was shot down. The

incident created a sensation. The community was divided as to his guilt

or innocence, and to this day there are some who cling to his memory as

to the memory of a martyr. But the fact was developed that the prominent

physician, potential politician and mayor was the head and brains of a

lawless gang which had been under the observation of the federal secret

service. His death scattered the gang, and with the gang the criminal

element which revolved about it. The gamblers took to their heels. The

new Kokomo emerged. But it was in the old Kokomo that John Kern passed

his younger days.

It was in the midst of this environment that he was left alone, master

of his own destiny, at the age of twenty. For almost immediately after

he began the practice of his profession his father, hearkening to the

call of the Old Dominion, and taking his daughter Sally with him, bought

a home in Carvin’s Cove, a basin seven miles from Roanoke, and so

surrounded by spurs of the Blue Ridge Mountains that there is but one

entrance to the cove for vehicles. Here during the remainder of his life

he lived the life of a recluse with his books, dogs, poultry and cattle,

going every Sunday to church to teach a Sunday school. Here in the Cove

Alum church on the frequent occasions of John Kern’s visits, the father

listened proudly to the eloquence of the son he idolized.

But the young lawyer was always surrounded by a multitude of friends,

good, bad and indifferent. His witticisms were passed about. His

practical jokes were laughed over. His popularity was extraordinary. He

was eagerly welcomed in every home. A slight figure, he had temper and

it was known that he would “fight at the drop of a hat,” no matter how

much larger and heavier his adversary.

Recognized as the orator of the community, the young lawyer was in

constant demand as a speaker on all imaginable occasions, from old

settlers’ meetings and Sunday school picnics to mass meetings to serve

some public end.

We shall now see in tracing the story of John Kern’s political

activities in the Kokomo days that when he paid tribute at a mass

meeting to Garfield, the martyred president, he spoke as the

long-recognized Democratic leader of the community.

The life of John Worth Kern · 第 2 / 21 章