By Kirk Woodward
[Some years ago, Kirk sent me a copy of his grandfather’s memoir, Obiter Dicta, which turned out to be a fascinating tale of the start of his law career in what was still frontier America. Ernest Woodward became a lawyer in Kentucky at the turn of the 20th century and practiced until the 1960s; his career spanned the first two-thirds of the last century and is not only an example of what a life in the law was like before law schools and 100-lawyer firms became the norm, but of a life on the edge of a still-untamed part of America. When Kirk suggested writing an article based on Obiter Dicta combined with his own recollections of his grandfather, I jumped at the idea. I think readers of ROT will agree, it’s a wonderful peek into a little-known corner of our national history. ~Rick]
It’s hard for us, accustomed as we are to the technological marvels all around us, to realize how recently life in the United States was vastly more primitive and basic. I doubt that human nature itself has ever been any different, but human tools definitely have changed. When I was very young, I used to visit my great-grandmother, who was very old at the time, and she remembered having seen Union troops on the streets of Louisville during the Civil War. Two generations between ourselves and the War Between the States – and one more long lifetime would reach all the way back to the Revolutionary War! And both those events seem buried in the mists of history.
As another example, I offer my grandfather Ernest Woodward (1877-1968), known to our family as Papaw. He was the paterfamilias of our family when I was growing up. He, my grandmother Mamaw (properly Allie or Alice), her sister Auntie, and their daughters Libby (Elizabeth) and Alice (Alice), lived, when I was growing up, in a distinguished old house in Louisville, Kentucky. Late in life Papaw wrote a memoir called Obiter Dicta (a legal term meaning, roughly, an incidental remark or a passing comment), and I’ve drawn much of the material in this article from that work.
Papaw started the law firm that became Woodward, Hobson, and Fulton, one of the largest and most successful firms in Kentucky (it has now merged with another firm), and he trained literally hundreds of lawyers, including his sons Fielden and Ernest, my father. Although I heard people call him “Judge Woodward” (people of distinction in Kentucky used to be called Judge, even if they weren’t one, and one parent was supposed to have given his child the first name of Judge in anticipation), he told me he refused a judgeship because he knew he would get too emotionally involved with one side or the other.
When I read about Samuel Johnson, my grandfather was my mental model, except that Dr. Johnson appears to have been a first-class neurotic, and “neurotic” is the last word I’d apply to Papaw. To me he was, on the contrary, placid, thoughtful, and even-tempered. He talked to us children as though we were adults, telling me once that he didn’t think God was interested in human affairs, and that he thought nuclear war would destroy the world – which I’m sure gave us sweet dreams. He simply didn’t patronize.
With this background in mind, here are some illustrations, drawn from my grandfather’s life, of how different the life in the United States used to be.
Today we know the “Old West” to a great extent through the filter of television and movies. My grandfather experienced it directly. He and his new bride spent their honeymoon on a covered wagon. (I thought this tale was a myth until I saw a photograph.) There is even a connection to a legendary character of the Old West: Papaw’s brother Clayton. I met him only once, when he was very old. He had left home at the earliest possible moment and gone to Texas, where he claimed to have worked with Billy the Kid. I figured out the dates once, and it’s possible. Clayton said Billy was misunderstood.
For years Clayton had a dog that most people referred to, whether accurately or not I don’t know, as a wolf. Dogs, they say, resemble their owners, and I see a resemblance between the dog, if that’s what it was, and Clayton. Basically Clayton was just a son of a bitch. When he was in his nineties he went to a wrestling match and got in a fight after the match with a wrestler, who tried to have Clayton arrested for using brass knuckles. The last I heard of him, he had pulled off the road and fallen asleep in his car; when a Texas Ranger knocked on the window, Clayton, somewhat disoriented, held the trooper at gunpoint for an uncomfortably long time.
Most of the illustrations my grandfather relates about the difference between “then” and “now” have to do with the law. It’s inconceivable these days that a person could be admitted to the bar, not only without a law degree, but without a high school diploma. By my grandfather’s account he went to school for less than fifty months, or about four years, in total, following which – what else? – he taught school, while he prepared to be a lawyer by reading Blackstone’s Commentaries on the Laws of England. He memorized the details of the judicial structure that Blackstone describes, only to learn when he began studying with a real lawyer that the court structure he memorized had been repealed centuries before.
All his life he maintained that if a student enjoyed reading Blackstone he would do well at law, and if not, then probably not, and he may have been correct, considering the hundreds of successful lawyers he mentored. He wrote, “Most of them had greater natural ability than I, and all were better educated. The only aid I gave them was the opportunity to demonstrate their ability and worth, and the advice to leave me when they were experienced enough to establish their own law practice.”
Papaw himself “sat” with a lawyer for a few months, passed the exam, and was admitted to the bar with a typed certification from the clerk of the Kentucky State Court of Appeals, which I have seen. Out in Kentucky, where he lived, many of the cases he tried involved the railroad. He was such a thorn in the railroad’s side that eventually it hired him. Today, of course, the railroad is just one of many transportation modes, and not the most important, but around 1900 it played a huge part in people’s lives.
My grandfather liked to tell the story – he may have even said it happened to him, but I’d guess it’s apocryphal – of the railroad lawyer who had to deliver a condolence check to the widow of a man killed in a railroad accident. It was a check for perhaps $1000 – a large amount for the times. A few years later, the lawyer had to deliver another such check, and found himself delivering it to the same woman. He was struck by the nature of the double tragedy and asked the woman what she was going to do now. “I don’t know,” she said, “but if I do marry again, you can be sure it’ll be a railroad man!”
Papaw was representing the railroad on December 20, 1917, when a train belonging to the Louisville and Nashville Railroad crashed through a local wooden train in front of it, killing forty-three people and injuring fifty more. Papaw should have been on the L&N train; he was in a town out in the state to try a case and had no place to stay, and the railroad agent invited him to come home with him. Papaw declined because he thought it would inconvenience the man’s family, who were on the train. The agent was killed in the crash, and his wife was found, injured but alive, on top of the engine. Papaw immediately advised the L&N Railroad that it ought to admit responsibility and pay complete restitution, and it took his advice.
There are certainly shoot-from-the-hip lawyers today, but not many, and I’m pretty sure you find them more on television than in law offices. In my grandfather’s time, shooting from the hip was a literal possibility. Ohio County, Kentucky, where he was from, was pretty rural, and guns weren’t exactly unknown there – Wyatt Earp’s two brothers, Virgil and James, were born there, as a matter of fact.
I know of two stories about Papaw involving guns. The first is simple, and involves a man who was being seriously bullied by the town tough. My grandfather advised him to buy a gun and, if accosted again by the thug, to shoot him dead. It appears that the bully may have gotten the word, because Papaw’s client never had to shoot him.
The second story is more elaborate, and involves a group with the ominous name of the Night Riders. When I first read about them, I assumed that they were somehow connected with the Ku Klux Klan, and perhaps there was some overlap. Basically, though, the Night Riders were the result of actions of the extremely powerful tobacco industry, which wanted to keep prices high by limiting how much tobacco a farmer could grow. Resentment at this policy led to armed groups opposed to the crop limits, and those groups degenerated into crowds of extortionists, devoted, my grandfather said, to “murder, arson and lawlessness.” Papaw was an officer of the state National Guard dispatched to bring some order to Eddyville, Kentucky, where the County Judge (the chief county administrative officer) and his family had been badly beaten by the thugs.
The Guard made the courthouse its headquarters, and the Night Riders announced that they would be holding a rally there. The County Judge, named Crumbacker, stated that if they did, there would be more deaths than there had been at the battle of Eddyville in the Civil War, and that he might have been beaten up once, but there was no way he’d let it happen again. My grandfather stationed soldiers throughout the meeting that took place that night, and told them to expect to have to try to arrest the main rabble-rouser when he started to speak. Preceding that man, however, was a former Confederate soldier who was supposed to introduce him. This gentleman began to speak and didn’t stop. He talked about his childhood and his youth and his service in the Civil War and his family, and eventually the crowd got bored, gave up, and went home. My grandfather always felt that this man had saved his life.
However, the Night Riders later moved into Ohio County, in a “reign of terror . . . during which property was destroyed and innocent men and women were cruelly beaten.” My grandfather was County Attorney at the time, and after about two years, at the end of his term, the Night Riders were largely defeated. About a hundred of them were arrested, and they went to my grandfather, of all people, to defend them. He told them he would – if they were innocent – and the room slowly emptied until they had all left.
Surprisingly, though, as a private attorney he did represent them later, and what’s more he persuaded them to plead guilty, in a neat bit of legal maneuvering. He followed their guilty pleas with motions for new trials for all the men, and the judge agreed not to rule on the motions as long as the presumably reformed men stayed out of trouble, so the effect was that the judge suspended their convictions. None of the hundred or so ever violated the court’s order, and so the Night Riders effectively dissolved.
Speaking of violent people in court, Papaw once had to cross-examine a man named Long John Wright whose record, my grandfather calculated, was that Wright had murdered somebody on an average of once every two years. “Needless to say,” Papaw wrote, “my cross-examination of him was both short and respectful!” (There’s no record whether Mr. Wright was ever convicted of anything.) The practice of law no doubt sharpened Papaw’s perception of people’s characters. He wrote that although it might be true that “all lawyers are liars,” he had also learned that “all liars are not lawyers!”
In his memoir Papaw expanded on his impressions of the differences between the way the law used to be practiced in his early years, and the way it was when he wrote down his recollections in the early 1960s. I could paraphrase his observations, but it’s better to let him speak. Some of the changes he reports are matters of the way things are done: “In the old days we wrote our briefs in long hand, and folded them tight to fit into the pigeon holes of roll top desks then in universal use, not only as desks but as filing cabinets. . . .“
Many changes, on the other hand, are changes of substance, like “the gradual disappearance of the one man law office, and the vast enlargement of the lawyer’s library. Sixty years ago, the average Kentucky lawyer neither possessed nor needed more than a Statute, Code and about 125 volumes of Kentucky Reports. He was a complete stranger in the Federal Courts. Today federal law questions require constant attention in every Kentucky law office, and a broadened field of local practice has resulted in ever growing law libraries in rural offices, until all important texts and cases can usually be found in any County seat in Kentucky.” He wrote those words, of course, before computers again revolutionized legal documentation.
He also noted that “In 1900, outside of Louisville and Lexington [the two largest cities in Kentucky], practically every lawyer was a trial lawyer, whose practice consisted in large part of boundary or land title disputes, criminal cases and divorce cases. The Court House was not only a temple of justice, but it was an amphitheatre in which the citizens flocked for instruction or amusement. . . . Now, many lawyers rarely go into the Court Room, and probably a third of them do not accept criminal cases, and many will not accept jury cases.”
My own father, Papaw’s son, is an example of this point. Dad did a fair amount of trial work in his early years as a lawyer, just before and after World War II, but by the time I was aware of what he did for a living, in the 1950s, his entire practice was tax and insurance law, and I never heard about his participating in a trial, except when he was recruited as part of the team defending the then Cassius Clay on draft evasion charges, and Dad didn’t speak at that trial.
“The entry of women into law offices,” Papaw writes, “has revolutionized the size, appearance and work product of law offices, and such changes have all resulted in vast improvement of law office appearance and product.” The perfect gentleman! “Some lawyers have betrayed their clients or proven unfaithful to the trust imposed, but never in my long experience as a lawyer has any woman associate betrayed the trust imposed in her.” High praise indeed, considering how many lawyers he knew over the years. I imagine he would be delighted to see a Supreme Court with three women on it. I know I am.
Speaking of my father’s specialty, tax law, my grandfather wrote, “I refused to read tax cases, because the amount involved in that field was so small, but I concentrated on studying the law applicable to railroads, because employment as railroad counsel was the best paid and most highly regarded. Now, the attorneys’ fees paid by Kentucky taxpayers is tenfold the amount paid by railroads.” That ratio, needless to say, has widened enormously since he wrote those words.
I have sampled my grandfather’s writing and experiences here to suggest that the distance between, say, 1900 and today is much greater than simply the distance between two sets of years. I will give just two more examples of that great distance, the first from Papaw’s writings and the second from my own experience. Here is the written example:
“At common law and in most jurisdictions before 1900, the family relationship was a matter for private decision by the head of the family, or by litigation, but now the juvenile courts, the domestic relations courts, and the child welfare movement have made most family controversies a problem for the psychiatrists and trained social service experts whose numbers exceed the number of Judges, and who are dealing with such problems, not as personal disputes or problems to be determined by a court in private litigation, but as matters of public welfare to be corrected at public expense and in the public interest.”
And here is the personal example: my grandfather smoked a pipe. He smoked it continually, and he enjoyed the rich aromas derived from various brands of tobacco. (As children, we did too.) His clothes, his house, everything were suffused by the smell of pipe smoke. Today a number of men smoke cigars because they like the smell, or the way they look when they hold them, or both, and cigar bars and cigar magazines are popular, but to my knowledge I don’t know a single person today who smokes a pipe. Times have changed.
I can still recall the smell of Papaw’s pipe.