# The autobiography of a Pennsylvanian/09 President Judge

CHAPTER IX
President Judge
IN 1891 I had before me a case of Commonwealth vs. Tierney. The defendant was charged with selling liquor without a license and, it appeared, had made the sale, as steward of a club which had been incorporated as a social organization, to one of its members. The club dues were merely nominal, the club property was very meager, and the club was one of those corporations which had sprung up all over the city, whose real purpose was no doubt to furnish liquors. In an elaborate opinion reviewing all of the authorities and working out all of the reasoning of which the subject was capable, I held that a club had no right, in the absence of a license, to sell liquors to its members. The decision raised a great storm, for the reason that the rich and influential likewise had their clubs, the Union League, the Rittenhouse, the Philadelphia and many more, and to deprive them of this concomitant of club life was a serious matter. I had thought of its effect, but was unable to draw any satisfactory distinction in principle between the clubs of high and low life and took the responsibility. The case went to the Supreme Court and there the Chief Justice, E. M. Paxson, a worldly wise man who had grown rich and later resigned his office to accept the Receivership of the Philadelphia and Reading Railroad, affirmed the judgment, but put it on the ground that this particular club was a fraud. Little by little the reasoning of my opinion, which still seems to me unanswerable, was left without support and the courts drifted into the conclusion that the sale of liquor by a club to its members was in reality not a sale but a process of equitable distribution. The result ​was a great development of what has been called the “Speak Easy,” and there have been recent efforts to have my position put in the shape of legislation.
In 1891 the Pennsylvania German Society was organized among the descendants of the early German and Swiss settlers of the state. Among those who took the preliminary steps were Dr. William H. Egle, F. R. Diffenderffer of Lancaster, Col. T. C. Zimmerman of Berks, Julius F. Sachse, George F. Baer, General James A. Beaver and myself. No other of the different race societies has been so energetic in the study of the sources of history or so prolific in the production of literature. My Settlement of Germantown appeared among its publications and for one year I was president of the society.
That summer Senator Quay paid me a visit at Moore Hall, and I had Dr. Joseph W. Anderson of Ardmore there to meet him. We were all three descendants of Major Patrick Anderson of the Revolutionary Army and had this bond of association. The doctor was a bland and mild-mannered person of wealth and great respectability. His father. Dr. James Anderson, was the oldest brother of my Grandmother Pennypacker. When a young man Dr. James Anderson bought a farm not far from Philadelphia and there practiced medicine. My grandfather, who was accustomed to good land and fine meadows, said: “I don't see what James ever bought that poor farm for.” It is difficult to forecast. The Pennsylvania Railroad put the Ardmore Station on that farm and the lands retained by the family are worth from $8,000 to $25,000 an acre. I took the Senator to the little house along the bank of the Pickering, where his grandfather had lived, to the site near a spring where James Anderson, the first settler, had built his log cabin in the woods, to the Anderson graveyard where he had his grandmother buried, to Valley Forge, and on Sunday we attended service at St. David's at Radnor. While at Moore Hall news came of the death of Charles S. Wolfe.
​“Poor fellow!” said the Senator with genuine sympathy. “He was a worthy man.” And then: “I was just arranging a plan to beat him.”
October 21st, I delivered the annual address before the Law Academy upon some early decisions of the courts of the province, and this address was afterward expanded into a volume of reports entitled Pennsylvania Colonial Cases.
On the 22d of December the New England Society of Pennsylvania gave their eleventh annual dinner. My speech was as follows:
It must be understood at the outset that I am not here as a “regular,” nor yet as a “volunteer,” nor even as an “emergency man,” but as a sort of substitute. My earnest and persuasive friend, Mr. Mumford, came to my house last evening and said to me, the youngest member of a court of three judges, two of whom are down with the grippe, that there was a likelihood of there being a scarcity of speakers here tonight and that I must come and furnish relief. I have come; but from what I have seen and heard since I have been here, and being aware that if I am known at all it is as an avowed Pennsylvania Dutchman, I am inclined to think that what your secretary had in mind in bringing me forward was a species of bear-baiting. If, therefore, you should be disappointed in the tone or substance of what I have to say you may at least entertain the hope that if I had had plenty of time and nothing to do, I might have prepared something entertaining, instructive and complimentary as did the speakers who have preceded me.
Before coming away from home I put into my pocket a little book, compiled by Nathaniel Dwight, and published at Hartford, in the State of Connecticut, in the year 1807. It is entitled A System of the Geography of the World—By Way of Question and Answer, Principally Designed for Children and Common Schools. Its substance was administered to babes and growing children, and they were expected to commit to memory the answers given here and to recite them to their attentive teachers. I read from the Questions and Answers:
“What are the general characteristics of the people of New England?”
“They are an industrious and orderly people . . . they are well informed in general. . . . They are humane and friendly, wishing well to the human race. They are plain and ​simple in their manners and on the whole they form perhaps the most pleasing and happy society in the world.”
“What is the temper of the people of New England?”
“They are frank and open, not easily irritated but easily pacified. They are at the same time bold and enterprising. The women are educated to housewifery, excellent companions and housekeepers, spending their leisure time in reading books of useful information and rendering themselves not only useful but amiable and pleasing.”
“What is the state of science in New England?”
“It is greatly cultivated and more generally diffused among the inhabitants than in any other part of the world.”
“What is the character of the Pennsylvanians?”
“Pennsylvania is inhabited by a great variety of people. . . . Many of the yeomanry in some parts of this state differ greatly from the New Englanders, for the former are impatient of good government, order and regularity, and the latter are orderly, regular and loyal.”
The lessons thus early taught have been well learned. I remember, that some two or three years ago one of the eloquent and witty gentlemen who respond upon these festive occasions was called up to reply to a toast which met the approval and received the applause of the assembled members—“Benjamin Franklin, the Discoverer of Philadelphia.”
In a certain sense I admit the fact that lies concealed in that witticism, and in that sense concede that Benjamin Franklin was the discoverer of Philadelphia. When the cumulative forces of civilization, which had been gathering for fifteen centuries had made their way across the Atlantic and several centuries later had extended beyond the Mississippi and reached the base of the Rocky Mountains—then the potato bug discovered the potato. In 1723 a young man of seventeen years walked from the Delaware up Market Street to Fourth. He was a youth of scanty means and I may say of less morals. He saw the accumulated shipping at the wharves, he saw the State House and warehouses of a prosperous and growing community, and in the market house which ran along the center of the street he saw the rich products which had come down from the farms of Lancaster and Chester counties. It was a spectacle the like of which never before had met his gaze and—Benjamin Franklin discovered Philadelphia. For sixty years he walked the streets of this great city, beaming benevolence and beneficence upon men of substance and influence, and casting cheerful glances upon lustful young women. He lived to a good ​old and honored age, and he died, his head stored with worldly wisdom and his pockets filled with the accumulations of his long and eventful life. He left behind him an autobiography in which, in his own inimitable way, he told how he personally had organized all the charitable and learned institutions that had grown up while he was a resident of this city. This autobiography, beautiful in structure, was translated into the different languages of Europe and he gained extended fame. Over the library in which were the books that had been collected by that learned scholar, James Logan, was placed the statue of Benjamin Franklin. The central window of that great University, which was led to success by Dr. William Smith, against his opposition, shows the record of the great achievements of Benjamin Franklin, and over every house and every barn in the land a lightning rod pointing heavenward testifies to the popular judgment of his scientific attainments and his eternal reward.
I have been asked to respond to the toast “The Keystone and Plymouth Rock.” For the long line of distinguished men New England has produced, Pennsylvania has only to express her sincere appreciation and her emphatic approval. In all her efforts to ameliorate the condition of the human race and to advance the cause of literature and of science, Pennsylvania has had the warm support of the sons of New England. The American Philosophical Society, which was the first of our scientific institutions, has had in that blessed land many successors. The Law Department of the University of Pennsylvania, established in 1791, and the Medical Department of the University, established in 1765, have been followed by departments devoted to the same learned pursuits at Harvard. The resolutions adopted in town meeting in the city of Philadelphia on the 16th of October, 1773, forbidding the landing of tea on these shores, were adopted and accepted in precisely the same words by the people of Boston in their town meeting on the 6th of November of the same year. The principles of the Revolution, the keynote of which, set by John Dickinson in his Farmers' Letters, echoed across Boston Common, were carried to their logical conclusion by John Adams of Massachusetts.
This speech was applauded on the occasion of its delivery; it aroused attention and many distinguished men wrote to me in praise. A gentleman illustrated it with portraits and autographs, and after binding it in levant sent it to me. But I have never been invited to speak at a dinner of the New England Society since.
The judges, in social parlance, were regarded as being possessed of too slender resources to be expected to entertain, but it was the proper thing to invite them to all of the important functions, and my cards of invitation and menus, all of which are preserved and bound in volumes, give a quite complete picture of this phase of life in Philadelphia, and even of the state, for twenty-five years. The best dinners of a public nature were served at the Bellevue, which stood at the northwest corner of Broad and Walnut streets, and has since been torn down and been succeeded by the Bellevue-Stratford. There I have heard all of the leading statesmen, politicians, generals, admirals, literary men and other conspicuous persons of my time make after-dinner ​speeches. The Clover Club and the Five o'Clock Club were the principal dining clubs and their style of entertainment was pretty much alike, giving their guests plenty of good champagne and expecting them to endure with complacence all of the ribaldry which the combined wit of perhaps a hundred hosts could devise. The Society of the Cincinnati always gave an attractive dinner. They had a considerable fund of money, and after their Washington Monument in Fairmount Park and other expenditures were provided for, had nothing to do with it except once or twice a year to have a beautiful dinner. It was only excelled by that of the Directors of the Pennsylvania Company for Insurance on Lives and Granting Annuities, an ancient and very wealthy corporation. They gathered about a circular table upon which everything was of the best which money could secure, and the space in the center was banked with rare flowers. No outsiders were invited, save the judges and their counsel, John G. Johnson, who never drank anything except from a pitcher of lemonade prepared for him alone. The dining-room at the Bellevue was too limited in space to entertain a crowd and, therefore, the dinners were never unwieldy and never delayed. At the dinner of the Clover Club George G. Pierie always sang a crude song called “The Darby Ram,” and at the dinner of the Five o'clock Club to each guest was presented a time-piece of some kind as a souvenir.
In 1892 the Pennsylvania Society of the Colonial Dames of America, a society of women whose forefathers had borne some part in colonial public affairs prior to the Revolutionary War, was organized. Mrs. Pennypacker became a member and one of its controlling committee of thirteen. About the same time I was selected by the Pennsylvania Society Sons of the Revolution, of which I was then one of the board of managers and of which I have since become the senior vice-president, a delegate to the National Convention which met at Mount Vernon. A little later in the same year the ​Netherlands Society of Philadelphia, comprised of descendants of the Dutch who were in America prior to the Revolution, was formed at the suggestion of Dr. Peter Dirck Keyser. I was one of the first members and have since been its president. The spirit and the literature of this society have been excellent. Each year on the anniversary of the Convention of Utrecht, January 23, 1578, they drink a glass of schnapps, smoke a long pipe, listen to the rendering of “Wilhelmus van Nassauwe,” by members of the Orpheus Club, and sing the song of The Dutch on the Delaware, written by my brother, Isaac R. Pennypacker, and set to music by Doctor Arnold Gantvoort, Director of the College of Music of Cincinnati.
The first conviction of murder in the first degree in the City Hall at Broad and Market streets was that of a man tried before me. Job Haas, a coal dealer doing business in one of the suburbs of the city, belonged to a type which is now almost obsolete. He went to his place of business at the break of day. He had no faith in the security of banks and carried his cash upon his person. One morning before others were stirring he sat at his desk writing a bill for coal when a negro, named Henry Davis, crept up behind him with a club, crushed in his brain and stole his money. He fell over dead, his sleeve smearing the partly written bill, which I have preserved. The evidence was circumstantial but clear and left the jury and myself without doubt. The case interested me as a psychological study. Davis had been employed at the Midvale Steel Works, but had been discharged and was without a job and without money. The night before he went to see the woman to whom he was engaged to be married and told her his financial situation. Thereupon she promptly threw him overboard. The cause of this murder was the situation which has been outlined, the mood into which he, ignorant and undisciplined, was thrown by his surroundings, and the unusual opportunity given to him by a miserly old man. Another murder case ​interested me exceedingly because of the closeness of the legal questions involved. Nichola Bartilotte, convicted December 23, 1897, had a quarrel with another Italian, a larger man, in the course of which his thumb was so badly chewed that he was compelled to go to the hospital. After he had been cured, one day he thrust into his pocket a long-bladed knife, which I still have, and went down to the house of the other man, evidently on the lookout for trouble. The other man accepted the challenge and after some altercation Bartilotte ran. His antagonist pursued, picked up a large stone, overtook Bartilotte and, getting him down, lay on top of him, beating him over the head with the stone. By some means Bartilotte was able to open his knife and he plunged the blade into his foe, who rolled over helpless. Up to this time Bartilotte was legally safe from the charge of murder. He arose, hurt and bloody, went away to the distance of perhaps twenty-five feet, then returned and with a half dozen fierce blows of his knife put an end to the life of his foe who lay on the ground. The jury saved me from grave trouble by finding him guilty of murder in the second degree and I sentenced him to a long term of imprisonment. The jury was probably about right in the conclusion it reached. I ever had a distrust, and even a sort of a horror, over the ways of the detective, and no man was ever convicted before me of any offense upon such testimony alone. Like a prosecuting attorney who wants to convict, the object of the detective is not so much to inquire as to fasten the crime somewhere, and the methods used are those of dissimulation and falsehood.
Just before I left the bench a boy of eleven years of age was tried before me for the murder of a playmate of six or seven years. The little fellow had a five-cent piece and the defendant had a toy pistol. The latter said: “Give me that nickel.” “No, I won't,” was the answer. “If you don't, I will shoot you.” The child stood his ground and thereupon the defendant shot and killed him. The ​defendant was locked up in prison, but the pistol, which was regarded as an essential part of the evidence, could nowhere be found. A detective went to him and, finding him crying, told him that if he would tell where the pistol was, he, the detective, would take him home to his father and mother. Thereupon the boy said he had thrown it into a quarry, describing the place, and the detective went there and found it. He testified to these facts at the trial and was much astonished and chagrined to hear the judge instruct the jury that they ought not to place the slightest reliance upon his evidence; that having charge of a child eleven years of age, he had, according to his own statement, deliberately lied to the child in order to gain an advantage over him and, therefore, could be trusted by nobody. John Weaver, who was then district attorney, came to me privately to remonstrate on behalf of the detectives and was informed that the instructions could not be modified to the slightest extent.
I once sent a man to prison for eight months for cutting off the tail of a dog. He had mutilated the animal and left it to perish miserably. Had a police officer who had made use of what is called “the third degree” with prisoners in his charge, or a gunner who had been shooting pigeons at a match, or a jockey who had docked the tail of his horse, or a doctor who had practiced vivisection, been brought before me while on the bench they would each have learned that the customs and technical needs of their professions would have been an unsafe dependence. The opponents of vivisection make the mistake of standing upon the weak ground of utility where they are necessarily mistaken. Of course, something concerning human construction and diseases can be learned from cutting up a living animal. More could be learned by cutting up a human being, however. The answer to the doctors is that we have no business with the information that can only be secured in this way. Let us do without it. Let each creature bear its own ills. It ​is better that I should take the chance of dying of a tumor than that men should be taught to cut up living dogs to get possible information. A man may give the money he has stolen from a scoundrel to the poor, but that does not justify the theft. To the Jesuit doctrine of doing harm that good may come of it we had better say “Avaunt!” “Vade retro Sathanas!”
On the 16th of Febrary, 1893, I came pretty near to destruction. For several days I had been trying a rather important land damage case of Lukens vs. The City, in the second-story room of Congress Hall, the windows of which look upon Chestnut Street. I finished charging the jury about three o'clock. The plaintiff came to me to ask whether I would not wait and take the verdict. I hesitated for a moment, but concluding that it would make little difference to him and it was uncertain how long they would deliberate, I told the jury to seal their verdict and bring it in the next morning and I adjourned the court. I had hardly got outside the room before the ceiling fell, filling the room with debris and crushing the bench at which I had been sitting and my chair to the floor. Various coatings of plaster had been applied through the century until they were eight inches thick and as solid as rock. This mass hung over me like the sword of Damocles, ready to fall with the occurrence of any unusual rumble on the street, and that afternoon there was no place on earth more seemingly safe and in reality more dangerous. A wit at the bar said: “Fiat justitia ruat ceiling.”
About this time began the first talk about sending me to the Supreme Court of the state, and it received some support from the bar and the newspapers. Fell, however, who was my superior in the court, had ambitions in that direction. We talked the matter over together, with the result that I concluded to make no effort at that time and so told him.
In 1893 a number of gentlemen in the city interested in the collection and publication of out-of-the-way books, ​organized the Philobiblon Club. Among them were James MacAlister; Clarence H. Clark, whose specialty was extra-illustrated or Grangerized books; Ferdinand J. Dreer, who had made an unusual collection of autographs which he later gave to the Historical Society of Pennsylvania; Horace Howard Furness, the celebrated Shakespearean scholar; and John Thomson. Furness, a kindly, genial and most attractive man, with a ruddy complexion, a little stout, who always carried an ear trumpet, the sort of man whom everybody likes, established a reputation for literary attainments which extended very far. What he did, however, was only to make a sort of catalogue of the labors of a very famous person, a task which can hardly be regarded as the creation of literature. In my view Charles R. Hildeburn did a much more important work of the same character in the preparation of his Issues of the Press of Pennsylvania and the sources of information were much more obscure. Dr. William Pepper became the first president of the club and at his death I succeeded him and I have been re-elected each year since. Its most important reproductions have been the Magna Charta of William Penn, and the Chronicles of Nathan Ben Saddi. I wrote the preface to two or three of its publications and have made one address upon some book topic to the club each year.
About this period began the organization of patriotic societies, as they are called, composed of the descendants of those who participated in events of consequence in American history.
I was one of the founders of the Pennsylvania Society Sons of the Revolution. The earliest president, William Wayne, a descendant of Anthony Wayne, who, in order that the name of Wayne might be maintained, changed his from Evans, was followed at his death by Richard M. Cadwalader, a descendant of Colonel Lambert Cadwalader, and a sweet-tempered, deaf and delightful gentleman, who has seven sons and who in his earlier years wrote a book ​upon ground rents. I have been vice-president of the Colonial Society and am a life member of the Society of Colonial Wars and a member of the Society of the War of 1812.
An exceedingly interesting society of this character, of which I have repeatedly been the president, is the Netherlands Society of Philadelphia, before referred to. Its membership is not so large as to be cumbersome and there are an intensity and fervor about the spirit manifested at their annual dinners on the 23d of January, the anniversary of the Convention of Utrecht in 1578, which I have found nowhere else. It is partly due to a real belief in the value of their Dutch ancestry and to the impressive music of the songs called forth in the struggle of Holland with Spain and of their own song of The Dutch on the Delaware.
Among my friends in the city was Godfrey Keebler, a Swabian, who in his youth came to America and for a time worked on the place of my Grandfather Pennypacker. Later he went to Philadelphia and there prospered, doing a large business as a baker. He was president of the Cannstatter Volksfest Verein, and being active in all of the movements in which the Germans were interested, he had me invited to all of their festivities and balls and made me an honorary member of the “Verein.” It was through him that I was invited to deliver the address at the dedication of the Schiller Monument in Fairmount Park. He died in 1893.
On the second of November of the same year the Art Club gave a reception to Joseph Jefferson which Mrs. Pennypacker and I attended. We found him the same genial personality on the floor which his acting indicated on the stage. It is doubtful whether any other actor ever awakened more kindly feeling for himself or greater admiration for his art. In Rip Van Winkle, Cricket on the Hearth, The Rivals and Lend Me Five Shillings he seemed to me to be perfect. It is a satisfaction to have seen the stage in these days of Jefferson and Booth when the intelligent analysis and ​presentation of character were depended upon to attract rather than the gaudiness of scenery or the legs of the ballet.
On the 21st of December, I met the President, Benjamin Harrison, at The Union League and heard him make an address—a short man, pallid, precise, and with his wits about him, but he gave the impression of selfishness and of one who could feel that the Lord had intervened specially in his behalf.
In 1894, Judge Fell went to the Supreme Court and for a year Theodore F. Jenkins took his place. Jenkins was a Democrat, who began his career as a boy in the Law Library, and who, turning his attention to the books he carried to the lawyers, became later a skilled lawyer himself and made a success in his profession. While he sat on the bench there came before us “Melon Street,” a novel and complicated land damage case, which before it was finally decided had the unique distinction of having been heard before seventeen judges, and another case, which I called my “Slam-bang” case. The plaintiff stood on the platform of a railroad station; about a hundred yards away the railroad crossed a public street. A woman, walking on the street at the crossing, was struck by the train and killed. The locomotive carried her body as far as the station and there, throwing it on the platform, struck the plaintiff with it and broke his leg. He brought suit for negligence. I entered a non-suit upon the ground that the consequence was too remote to be reasonably anticipated as a result of the alleged negligence. Both Judge Hare and Judge Jenkins were against me, but I stood my ground and was affirmed in the Supreme Court. There is no other case like it in legal annals.
Judge Jenkins, being a Democrat, only remained on the bench for a year and, following the next election, was succeeded by Mayer Sulzberger, a Republican. Sulzberger was a Jew, born up the Rhine in Germany, and holds high rank among his people over the world, being learned in letters and a strong influence. Small in stature, with shoulders ​slightly stooping, large head and a ready tongue, he is the only man I have ever met in my life who talks all of the time and who always talks well. Every sentence has something in it, keen and incisive as well as philosophical. At the bar he was rapidly closing up the gap, between John G. Johnson and himself for the leadership. He had a large practice, and by it had made a fortune. Why he was willing to leave it behind him and start upon another career has ever been something of a mystery. A learned and most able judge, his success has been somewhat qualified by the fact that he could never quite forget that he was no longer an advocate. A thoroughly good-hearted man, with much of the milk of human kindness overflowing in his soul, there was, nevertheless, a remnant in him of that Eastern tyranny which is shown on the Assyrian monuments, where the successful heroes are seen gouging out the eyes of their foes. Saving for these limitations upon his practical usefulness, no greater or more capable judge ever sat on the bench.
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!”
In 1894 my daughter Josephine and I made a trip to Cuba on the fruit steamer Braganza, built on the pattern of the Alabama, and on the way saw the island of San Salvador, or Cat Island, which was the first land found in America by Columbus. It did not look as though he had found very much of importance. We landed at Barraçoa, a very old town on the eastern end of the island. A low wall ran around it once, intended for defense, but now broken down, and on top of the wall paced one solitary and forlorn-looking ​sentry. The Spaniards throw the offal from the cattle killed into the sea and consequently the harbor was full of sharks. The town was dirty and dilapidated. Boys and girls, ten or twelve years of age, ran around stark naked. Women were uncovered above the waist. Countrymen rode into town astride of horses, mules, asses, bulls, cows, or anything mountable that they could find. A man would load his mule with lumber, the ends of the boards dragging behind, then throw two huge bags of merchandise over the mule's back, then get on top of the bags and ride to the mountains. Every step was attended by a flock of buzzards patiently awaiting the time when the man or the mule would topple over. Everything was open. I saw one man ride a cow into a store and up to the counter to make a purchase, and the storekeeper treated it as a matter of course until she dunged on the floor and then he complained. The sky would be perfectly clear, a few minutes later it would rain in torrents, and a few minutes later still it would be as clear as before. For amusement the Spaniards drank a sweet native wine and fought game cocks. An American named Matthew Craig had the only industry in the town, a factory where he employed a number of men and women and made oil from the nut of the cocoanut palm. He had acquired a small fortune, during the Spanish-American war a few years later, he lost it all and he died in Kensington, Philadelphia, in absolute poverty. Bananas and pineapples seemed to be the only products to be sold. The United States Government sent a cultivated young South Carolinian, recently married, to Barraçoa to act as consul. It was a sad and solitary place, and the consul and his wife seemed glad enough to see an American face. When the war came along, they were overlooked and forgotten and had a most uncomfortable experience. It was an interesting and novel sight to see the steamer being loaded with bananas. They were brought in little rowboats to the side of the vessel and the negroes formed in line tossing the bunches from one to another, ​singing with rhythm and time: “Uno, duo, trio, quadro, quinto.” When the work was over they had a dance, playing on instruments made of a gourd with a stick through it and ornamented with carvings. I prevailed on one of the performers to sell to me two of the instruments.
From Barraçoa, we went to Mata and Yumuri, two other little ports in eastern Cuba to secure bananas. At the latter the Yumuri River, flowing from the mountains, empties into the sea. We went up this river for a mile or two in a rowboat. The limbs of the palm trees were covered with vines and mosses, the forests were a complete tangle, impenetrable except to one carrying a machete, and in the crevice of every rock left bare by the stream some plant had started to grow. We saw women washing clothing along the banks of the river and using for soap the juice of a plant. The wife of the agent of the fruit company at Yumuri invited us to breakfast. She could not talk a word of English. The dishes were all strange but palatable. The pigs ran around over the floor, but it must be remembered that the rooms were all open to the air. On the bottom of the cup from which I had drunk the coffee I found half a dozen drowned ants, but then it must likewise be remembered that Cuba is prolific of insects and it is, I suppose, impossible to be protected from them. Along the shore of the sea there was a refreshing sea breeze, but a few rods inland it was so hot as to be stifling. Josephine and I gathered sea shells and sea beans along the sands and a naked negro boy came out of a hut built of palm and roofed with palm leaves and brought us specimens which were beautiful. We left Cuba at midnight in the full of the moon, shouting “buena noche” to those who rowed to the shore. On the way home the captain was bitten by a tarantula, and we enjoyed eating the little fig bananas (those on their way to market being contemptuously called plantains) and a species of pineapple vastly better than any of those offered for sale.
​On the evening of November 1, 1894, Henry Watterson of Kentucky, one of the most famous journalists of the day, lectured in the Academy of Music. The Union League, of which I was then a member, gave him a dinner and several of us made speeches at him. He was rather a fierce looking little man wearing a big mustache, but as we got nearer to him we found him genial and companionable.
On September 16, 1895, the courts of common pleas formally abandoned their former place of meeting at Sixth and Chestnut streets and moved to their rooms in the City Hall at Broad and Market streets. On invitation I made an address to the bench and the bar, after having thoroughly studied the associations connected with Congress Hall. This address was printed by a committee of the bar consisting of Edward Shippen, George Tucker Bispham, and Samuel Dickson. Up to that time, little attention had been given to the history of Congress Hall, but it then came into vogue. At one time the city offered it for sale, but the Colonial Dames took hold of the matter and with effort persuaded the city authorities to undertake its restoration. They and the architects depended upon my paper for their information and its effect was therefore helpful not only to the city but to the nation. When the building was re-opened in 1913, Woodrow Wilson, President of the United States, and Champ Clark, Speaker of the House of Representatives, were present on the invitation of Mayor Blankenburg, but they knew little about the subject and perhaps cared less, and the architect then told me that he had made his reconstruction, and the agent of the Associated Press told me he had prepared his report for the country, based upon the facts I had given them. The address was not only an historical investigation, but could be included among what the cataloguers of books call Facetiæ because of a reference it contains to General Henry Knox, unearthed from a contemporary description of him. Upon going to the City ​Hall the judges put on the silk gowns which they have since worn when performing their duties.
In 1895 my uncle, Joseph R. Whitaker, died. He was a bachelor about seventy-one years of age, masterful but good-hearted, who had a great influence upon my fortunes. He left property of the value of perhaps a million dollars, which, on his death, he distributed among his nieces and nephews and he made me one of his executors. Amid the vicissitudes of my later life among politicians, the fact that I had my own resources on which to rely saved me from those intimations which are so often ruthlessly and recklessly made concerning those holding public office.
The same year I became one of the vice presidents of the Historical Society of Pennsylvania, the president of the Pennsylvania German Society and the vice president of the Colonial Society.
One of the brightest retorts (in baseball language, “right off the bat”) I have ever known occurred in the trial of a case before me about this time. The question was the right of an alleged political party to have a place on the printed ballot. John C. Bell, afterward Attorney General under Governor John K. Tener, represented the applicants, and James Gay Gordon, later a judge in No. 3 Court, represented the opponents. Bell's client, a noisy, blatant fellow, told how he and two or three others had met on a Broad Street corner and concluded to organize the new party. Bell, when he came to the argument, explained this rather dubious beginning by saying that it often happened in nature that important matters had an insignificant origin, that the acorn became the mighty oak and the Amazon River, a hundred and fifty miles wide at its mouth, started in a little rill in the Andes Mountains. “Yes,” said Gordon in reply, “but this party began in a big mouth and ends in a little rill.”
In December, 1896, Judge Hare resigned from the Bench after a service of forty-five years and the effect of his ​withdrawal was to make me President Judge of the Court. My commission was read and I assumed the duties December 13th. One day Sulzberger and I sat in our room discussing the situation and we concluded when our advice should be asked to suggest the appointment of J. Martin Rommel, a capable young lawyer, as the third member of the court. A tap came upon the outside of the door. When it was opened in stepped Colonel Lewis E. Beitler, a tall person with a military air, who said: “At the command of Governor Hastings I come to present his compliments and to inform you that he has concluded to appoint Mr. William W. Wiltbank to the vacancy in this court.” And he did. Judge Wiltbank was a descendant of Bishop William White and of General William MacPherson of the Revolutionary Army. He had been an officer in the War of the Rebellion. He had a considerable practice and had had long experience at the Bar, and he possessed a technical knowledge of the law as well as intelligence. His mental processes were a little prone to be stiff, prim and formal. He never would permit himself to precede me in going through a doorway. He was almost horrified when he found me sitting on a bootblack stand on the street having my boots blacked. He made an excellent judge and distinctly strengthened his professional reputation by going upon the bench.
In 1897 I took my three daughters—Josephine Whitaker, Eliza Broomall and Anna Maria Whitaker—to Europe and we spent the most of the time in Holland and England. It is one of the comforts of my life that I have spent a month of it in Holland. The Englishman, with a capacity for organization and a force of character which has made itself felt in the world, is a surly sort of creature and retains many of the original brutal instincts. This fact is shown in all of his dealings with weaker peoples. The Dutchman, while inheriting from the same ancestry the strong traits of courage, tenacity and the willingness to surrender individual inclinations in order to combine with his fellows, has a ​leaven of good humor which is a great saving grace. In the English Channel a dense fog settled down over us. One morning I was on deck leaning over the rail toward the prow listening to the horns which appeared to be blowing in all directions around us. Suddenly there loomed up before me, out of the fog, not more than twenty or thirty feet away, the sharp nose of a steamer, the Maine, coming directly for the side of our vessel. The deck hands on both boats yelled aloud and ran to the far side of each in order to avoid the splinters. A collision seemed inevitable and ours was to be the steamer rammed. I hung over the rail, only anxious to see that it did not strike before passing the state-room of my Daughter Josephine, almost beneath me though a little further toward the stern.
When that point was passed I felt a sense of relief, though I was told my face was bloodless. The passengers who were about ran to get life preservers. By skilful seamanship on both boats the officers and crews managed to keep them apart and the Maine swept by, almost grazing us. Then there was a mighty cheer on both boats. There was a timid lot of passengers for the rest of the trip. One man wore a life preserver the whole time and we all shall remember the Maine.
At Antwerp our hotel was near the cathedral and its chimes rang every fifteen minutes through the night. We rode in a street car out to Hoboken, a village three or four miles inland. The car stopped on the way. I could see no passenger who wanted to get on the car or to alight from it. Thereupon the conductor got off and proceeded to urinate before us all in full view. The incident illustrates the different way in which these people look at some of the problems of life. At Amsterdam we had rooms at the Hotel Amstel. The fields around the city are divided off, not by fences as with us at home, but by ditches filled with sea water, and there is but one entrance for the big black and white cattle which seem to be never hungry and always ​lying down, and that is through a gate. One day Josephine, who is something of an artist, and I went through one of these gates in order to give her an advantageous location from which to make a sketch of a tower. She made her sketch. While we were so engrossed one of the farm boys locked the gate and we discovered that we were held as prisoners. I would have enjoyed caning the Dutch scamp, but instead I was compelled to pay a ransom while he and some companions laughed with glee.
On another day my Brother Isaac and I went to Utrecht and there hunted up Jan Pannebakker, a goldsmith and jeweler with whom I had corresponded. The earliest of the name of whom I have knowledge was burned to death by the Spaniards as a heretic at Utrecht in 1568, and these cheerful Christians likewise drowned his wife. We took Jan, whom we found to be an agreeable black-eyed man with a pleasant wife and a family of well-educated children, to Gorcum or Gorinchem with us in order to make some investigations and to see the church in one of whose windows the arms of the family at an early date had been painted upon glass. He did not know a word of English and such conversation as was maintained throughout the day had to be conducted in Dutch. We crossed the North Sea from Flushing to the mouth of the Thames and spent a week in London. While there we visited the British Museum with its immense collections of literature and art, and the Kew Gardens with their many varieties of flowers and shrubbery. We stood on London Bridge, rode on top of the omnibuses and saw again on the Strand the tangle caused by the vain effort of the Englishman to solve modern transportation by the extension of the old method of cab service. With all of his capacity, the Englishman is a little stiff in his mental joints and, therefore, slow in his movement. I saw outside of Coventry a woman, born in the house in which she lived, who had never seen the nearest village only three miles ​away. I found if I wanted a carriage from a liveryman the only safe course was to give an order the day before. In something of a hurry I went to a man at Coventry as I would have done at home and told him I wanted his carriage and driver. He began by feeding the horses, then he had them groomed, presently he brought out the carriage and had it washed and greased. After all of these preliminaries were completed and the horses stood there harnessed, I supposed we were ready to start. By no means. He then had to dress himself and put on that ugly long hat without which no man with a proper sense of his dignity would think of driving a team. My object was to go to Bosworth. It was fifteen miles away. No traveler had ever before asked to be driven to Bosworth, and he did not know the roads. I suggested that we might inquire as we went along and find them, adding that it was time for him to learn the way to a place so famous. Three or four miles from Coventry we turned a sharp corner, approaching the little village of Fenny Drayton. On the corner was a lot overgrown with weeds, in the center of which stood a stone. “What does that stone mark?” I asked. “I do not know,” he replied. “Stop the coach and let me see.” The inscription told me that on that spot stood the house in which George Fox, the founder of the Quakers, had been born. I had stumbled upon an interesting site, replete with associations of interest to a Pennsylvanian, and I felt repaid for the trip. We reached Bosworth after the noon meal, but learned that we were in Bosworth market town and still not at the battlefield. The driver objected to going any further. Among other incentives, one of my forefathers had been killed at Bosworth and I did not propose to get that near to the field without seeing it, so I insisted and told him to rest his horses for an hour and feed them. All that the tavern people could give us to eat was the remnant of a cold leg of lamb, and nothing could have been more palatable. While in England I cultivated an admiration for sheep from which I have never recovered. ​After reaching the neighborhood of the battlefield I stopped at a rectory and the rector, an intelligent gentleman, pointed out to me the way across two or three intervening fields. In a vale between low hills stood a rude monument of rough stone twenty feet high marking the spring where Richard III was killed to make way for another line of English kings.
We crossed the ocean from Southampton to New York in the City of Paris. On board were Pillsbury, who had been Attorney General of Massachusetts; Rufus E. Shapley, the Philadelphia lawyer who wrote Solid for Mulhooly; and the secretary of Chauncey M. Depew. We started in a storm so fierce that the seas swept over the upper decks and the hatchways had to be closed and the passengers locked below, much to their discomfort. At the international concert, whose programme was printed on the vessel, I presided and made an address.
When I went to Europe at the beginning of the summer vacation all of the matters before the court had been disposed of except one and upon that we had reached a conclusion and Sulzberger and Wiltbank promised that one of them would write the opinion. The Christian Science Church had applied for a charter. In addition to teaching certain theological tenets, they proposed to treat diseases through the instrumentality of “healers” who charged a fee for their services and advertised, seeking business. After discussion, all of the three judges were opposed to granting the charter for the reason that it would be in conflict with those statutes which make it a criminal offense to practice medicine except after study and upon a certificate of the Board of Examiners. We determined to select some good lawyer, disinclined to overlook the technique of his profession, a little set and narrow, closely associated with some one of the orthodox churches, so as to be certain of an adverse report and refer the case to him as master. We all felt sure that Henry Budd was our man and we made the reference. After long and careful study and a full ​presentation of the testimony, he filed a thorough-going report recommending that the charter be granted. Then there was a court in trouble. When I returned in the fall, I found the case just where it had been left, Sulzberger protesting that, since he was a Jew, if he had written the opinion it would have been commented upon unfavorably, and Wiltbank, since he was known as a strict churchman, urging similar reasons. The matter ended in my writing an opinion overruling Budd and refusing the charter, and by such a series of mischance I secured a place in Christian Science literature. With the great growth in numbers of these people and with the respectability which comes in two or three generations after the accumulation of such fortunes as that of Mrs. Eddy, there promises to be a future in which I shall be regarded as a sort of nineteenth century Herod.
It was also my fortune to decide one of the very early cases determining the rights of riders of the bicycle. The law is fixed that one approaching a railroad crossing must stop, look and listen. A man riding a bicycle came to a railroad where a train was passing. He did not get off, but rode around in a circle until the train had passed and then crossed behind it. A train coming the other way killed him. His widow brought a suit against the railroad for damages, which was tried before me. I entered a non-suit and was sustained by the Supreme Court. The newspaper organ of the bicyclers, published in Boston, said there was great need of new blood on the bench, and that the judges were a lot of old short-sighted and bandy-legged fellows who could not ride a bicycle if they tried, and who had no conception of the principles which ought to be applied to its use.
In March, 1898, Albert, who was the prospective heir to the throne of Belgium, made a tour incognito through the United States. He was a young man, neither tall nor short, neither slender nor stout, of no distinctive color or manner, and he made upon the beholder no very decided impression of any kind. I have already referred to the dinner which ​was given to him at the Bellevue. At that time Henry J. McCarthy, one of the judges of the Court of Common Pleas No. 3, had a method of after-dinner speaking which was very taking and altogether his own. He familiarized himself with the events in the careers of the classic heroes—Agamemnon, Alexander, Cæsar and the rest—and fitted them upon the men of everyday life in Philadelphia. Colonel Alexander P. Colesberry, a slightly made man, who gave no impression of strength, at that time United States Marshal, was at the dinner. McCarthy made a speech in which he drew a picture of Colesberry with the language and in the habiliments of Cæsar stopping the riot raised by the recent railway strikers on Chestnut Street. Albert listened with amazement if not with interest.
About this time, by a dispensation of the Most Worshipful Grand Master of the Masons of Pennsylvania, I was made a Mason at sight; that is, the three degrees of a Master Mason were conferred at one time, which is regarded as a great Masonic honor and has been accorded to but eight or ten men in the state. Among them were included John Wanamaker, James Gay Gordon and Charles Emory Smith.
In 1897 Philadelphia sought to issue a loan of $11,200,000. Some citizens, represented by Alexander Simpson, Jr., filed a bill in equity in No. 2 Court to prevent the transaction. I wrote an opinion dismissing the bill and on appeal to the Supreme Court the judgment was affirmed.
On the 3d of March, 1899, my mother died in her eighty-fourth year, one of a series of events occurring about that period which changed the whole tenor of my life. Since the time of my birth we had been together almost continuously. The early death of my father led to a relation between us never interrupted which was more than that of mother and son. The same year, June 17th, the Sons of the Revolution made a pilgrimage to Pennypacker's Mills on the Perkiomen, where I made an address to them. Peter Pennypacker bought 515 acres at this place in 1747 and ​there had a grist mill, saw mill, fulling mill and probably a country store. It was the terminus of the Skippack Road, and is referred to in William Bradford's little book published in 1754 as one of the noted places in the province. Washington took the Continental Army there September 26, 1777, and there held the council of war which determined to fight the Battle of Germantown. After the battle he retreated to the same camp, bringing with him his wounded men. Since the time of its purchase by Peter, the property had never been out of the family.
In the fall of 1899 I was nominated by all parties and elected to another term of ten years upon the bench. Said the Evening Bulletin editorially: “The renomination of Judge Pennypacker assures the continuance on the bench for another term of one of the most trusted and sagacious of the common pleas judges. Although among the unostentatious members of the judiciary, Judge Pennypacker's clear-headed, industrious, wise and faithful performance of his duty has long ago earned for him the confidence of all who have occasion either to participate in or to observe the business of the courts.”
As events happened very soon afterward, it did no assure anything of the kind and the play of larger forces gave a very different phase to my career.
The same year Governor William A. Stone appointed me a member of the Valley Forge Park Commission. The state had undertaken some years before to secure the grounds of the camp at Valley Forge and preserve them, but not very much progress had been made. Francis M. Brooke, who was at the head of the commission, was very earnest and zealous, but his energy often provoked antagonism. A. Harry Bowen, the superintendent, was a most efficient person and much credit is due him, but it is difficult to overcome the indifference of distant legislators to such movements, and the appropriations were too limited to permit much progress. I took the place of John Cadwalader, ​declining to accept it, however, until assured by him that it was his purpose to retire.
The efforts of the burghers of South Africa to protect their homes against the aggressions of the strongest empire of the world seeking to get possession of their gold and diamond mines appealed to me strongly. Cecil Rhodes and Dr. Jamieson represented the ordinary type of adventurers, always to be found on the outskirts of civilization, ready to run the risk of hanging in order to take the chance of seizing what does not belong to them. In my opinion, no man who has been minister to a foreign court, especially to England, which is our natural rival and in time of stress has always been our foe, ought to be permitted to be Secretary of State of the United States. John Hay, who is generally much lauded for diplomacy and whom I should like to approve, because of his literary attainments and because he wrote to me some kindly letters and spoke pleasantly of me in his Life of Lincoln, should never have held that responsible position. The meanest thing in American annals is the fact that we aided the British Empire to crush a little republic by sending our mules and supplies. One of the greatest mistakes we have ever made was in throwing our sympathies and moral support to Japan in her war with Russia. The latter country had been our friend in the War of 1812, during the Rebellion and when she sold us Alaska. The merest tyro ought to have been able to see that with our ownership of the Philippines and our Pacific Coast, a struggle with Japan is in the future inevitable. Both of these blunders were due to the fact that John Hay used his potent influence in behalf of England. Some years ago it was my fortune to see at a bookbinder's the letters and invitations with which he was coddled by the king and nobility of London and which he was having bound in crushed levant for his posterity to admire. Very few men are strong enough to resist such blandishments. I wrote three letters upon the Boer War for the New York Sun. ​They were reproduced by W. T. Stead in London and elsewhere in England, in Australia, and were translated into German, Dutch and the other European languages. They are too long for insertion here, but the following which I published at the time is in the same spirit:
The South African War
On the 19th of May, 1900, I was elected president of the Historical Society of Pennsylvania. This venerable institution is the strongest in the United States devoted to its line of investigation and possesses volumes and manuscripts worth two or three millions of dollars. The papers which tell the story of Pennsylvania are within its walls. I had a long line of distinguished predecessors—William Rawle, Peter S. Du Ponceau, Thomas Sergeant, Joseph R. Ingersoll, John William Wallace, Brinton Coxe and Charles J. Stillé.
In 1901 Judge Charles B. McMichael sat with me in the License Court. He was a cultivated person who read Latin books for entertainment and, like all the McMichaels, was handsome. We granted very few more licenses than we found already in existence. One outcome of the session was the printing, only thirty copies however, of a little volume of reports of the cases as they came along, which I wrote while in the court.
REPORTS OF CASES IN THE PHILADELPHIA LICENSE COURT OF 1901
In curia currente calamo scribentur
Dramatis Personæ
Judges Pennypacker and McMichael.
Weber, an old German who, after leaving the saloon of Celia B. Gilbert, at 11 p. m,, fell and fractured his skull, from the effects of which he died.
Noyes, Carter and Brownley, detectives of the law and Order Society, who ferret out speak easies and bawdy houses, and applicants for license—German, Italian, Irish and the like—innumerable.
“License they mean when they cry liberty”—Milton.
“There is nothing which has yet been contrived by man by which so much happiness is produced as by a good tavern.”—Dr. Johnson.
| | Ik moet, zeid' dat oudt Manneken, |
| | Noch drinken ens een Kanneken, |
| | Ik moet, zeid' dat oudt Manneken, |
| | Noch eensjes vrolijh zijn |
| | Drink Liedt of 1655. |
| 1 Application of Celia B. Gilbert, No. 1988. ||
| | Ach Weber! Ach Weber! |
| | Was nun ist geschehen? |
| | Die Fusse, sie wandeln |
| | Sie Konnen nicht stehen, |
| | Durch die Jagen und Wochen |
| | Der Kopf ist gebrochen. |
| 2 Celia B. Gilbert, No. 1988 ||
| | Mon cher ami |
| | J'entend un cri |
| | Der Weber ist gefallen |
| | Les hommes courirent, |
| | Les femmes soupirent, |
| | Und laut die schreie schallen. |
| 3 Vincent Tontorello, No. 22 ||
| | If French you be, |
| | Il fait un bruit |
| | But when in accents loud and clear |
| | He tells of Tontorello's beer |
| | The story cloys |
| | 'Tis only Noyes. |
| 4 Nicholas Pessalano, No. 32 ||
| | And now there comes an end to Pessalano's joys. |
| | When a Law and Order Agent gets his bottles and an Noyes. |
| 5 Peter Finlan, No. 248 ||
| | What curious thing is this we hear, |
| | When Carter swears that Finlan's beer |
| | Is ladled out (by a man) with one ear. |
| 6 Philip Engelke, No. 265 ||
| | Though small and scarce the angels be |
| | McMichael finds an Engel-ke |
| | Though fortune tap but once in a cycle |
| | She scatters her favors before McMichael. |
| 7 Generoso D'Allesandro ||
| | Oh! ho! |
| | Generoso |
| | D'Allesandro, |
| | Must it ever go so? |
| | Speak it easy all the land thro' |
| | Speak it easy when you tell her |
| | Of the bottles in the cellar. |
| 8 August M. Finkbeiner, No. 319 ||
| | Oh Finkbeiner! |
| | Oh Finkbeiner! |
| | What is finer, |
| | Or diviner |
| | Than Milwaukee beer? |
| | But when seen |
| | On table green, |
| | With slot machine, |
| | Froth and flavor disappear. |
| 9 George Dokenwadel, No. 379 ||
| | Dokenwadel |
| | Was fur ein twaddle |
| | About a "boddle"? |
| | When you sell it |
| | Why not tell it? |
| 10 Arnholt & Schaefer Brewing Co., No. 400 ||
| | Policy men and toughs |
| | Gamblers, bawds and roughs. |
| | Abide in Sansom Street |
| | And in speak easies meet. |
| | But when Carter, Noyes and Brownley greet |
| | Throw down their money and offer treat, |
| | 'Tis necessary to be discreet. |
| 11 Frederick W. Wolf, No. 426 (A bottler who sold beer to the Kensington Athletic Club, No. 3643 Market Street). ||
| | On the Kensington sward |
| | In the Twenty-fourth ward |
| | Are trained athle — tes. |
| | They stride from afar |
| | Cling close to the bar |
| | And swift run into diabetes. |
| 12 The cultured but weary McMichael cantat. ||
| | Hold! enough! |
| | Ich hab genug; |
| | Assez |
| | J'en ai! |
| | I hope and pray |
| | You will away |
| | Mucho no sano |
| | Poco es bueno; |
| | Nunc satis est, |
| | Give us a rest |
| | Life is short. |
| | (To the crier) |
| | Adjourn the Court! |
(Exeunt omnes.)
During this year there appeared in the Atlantic Monthly a paper upon The Ills of Pennsylvania. It was published anonymously and was sufficiently dull and stupid, but it gratified the instincts of the people of a state more in debt and, therefore, more mismanaged than any other in the country. The paper in its contents set forth that it was written by a Pennsylvanian, which, of course, gave its confessions of iniquity an added zest. I have since learned, however, that it was really written by Mark Sullivan, the son of an immigrant from Ireland, who, after living a short time in Chester County, went away to seek his fortune and became the editor of Collier's Weekly. Indignant that the Atlantic Monthly should do anything so indecent, I wrote a historical parallel upon Pennsylvania and Massachusetts, pointing out the great comparative importance of the former in American affairs. It was published in many shapes and I really believe had an influence in giving me a representative position among the people of the state.