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.