Horatius at the Bridge: A Kansas Lawyer's Battle Cry, 0514 KSBJ, 83 J. Kan. Bar Assn 5, 24 (2014)

Author:By Ron Smith

Horatius at the Bridge: A Kansas Lawyer’s Battle Cry

No. 83 J. Kan. Bar Assn 5, 24 (2014)

Kansas Bar Journal

May, 2014

          By Ron Smith

         Cobb County, Georgia, north of Atlanta, is hot in late June. That’s true in 2014. It was also true 150 years ago, on Sunday, June 26, 1864. In those days, Cobb County was small mountain country west of the railroad junction town of Marietta. In 1864, two armies were catching their breath that day near Kennesaw Mountain after weeks of fronting each other and digging hurried trenches. They were also getting relief from the rains that had come in relentless torrents that summer in north Georgia.

         Te Confederate brigades were in as much misery as their Union counterparts. They found themselves continually franked by the larger Union forces. There had been several skirmishes, but the norm was hurried evacuations and hard marching to more wet and uncomfortable new positions along a web of narrow dirt roads between Chattanooga and Atlanta. Historian Bruce Catton described these maneuvers as “a macabre dance” that characterized the Atlanta campaign being led by former Leaven-worth attorney, now Lt. Gen. William T. Sherman.1

         Kennesaw is a Cherokee word meaning burial ground.2 At Kennesaw the maneuvering stopped. Veterans on both sides sensed that something big was coming. Sgt. Nixon Stewart of the 52nd Ohio spent the night reading his Bible by a campfire. Over and over he read Psalm 91, the Soldier’s Psalm, as if repeated reading of the passage would protect him from whatever was going to happen. “A thousand shall fall at thy side and ten thousand at thy right hand, but it shall not come nigh thee.”3 He took the promise to heart and commended his life to God. But he slept fitfully.4

         In 1864, the American Civil War had reached its zenith in casualties. Te Armies of the Potomac and of Northern Virginia were locked in a bloody stalemate around Richmond, Virginia. In five battles between May 7 and June 30, there were over 61,000 Union casual-ties,5 slaughter unheard of in America. Te numbers would have raised a public outcry had Secretary of War Edwin Stanton not falsified the records before releasing them.6

         Atlanta was the prize of the 1864 western campaign. Gen. Sherman’s maneuvering met with more success than Ulysses S. Grant’s in the east and with far fewer casualties. His hard-bitten Cumberland veterans of Chickamauga and Missionary Ridge were marching behind him, steadily advancing into Georgia. Te blue hordes were coming. Atlanta civilians evacuated the city. Thousands of slaves hurriedly prepared defensive trenches for the Confederate Army to weather the siege that everyone expected.

         Dan McCook, the Lawyer

         Dan McCook was a trim 6-foot 29-year-old colonel of infantry in 1864, with steel gray eyes and the figure of manliness. He had been a leader of the Leavenworth bar in its courtrooms five years earlier and looked every inch a battlefield commander. Before the war, he was the principal trial attorney in the firm of Sherman, Ewing and McCook. McCook had read law7 in Ohio with his brother George McCook and George’s partner, Edwin Stanton, Lincoln’s secretary of war.

         Te son of an Ohio judge from Steubenville with a long political pedigree in eastern Ohio Democrat politics, McCook was a sickly and unhappy child, frail, “delicate and nervous” to a fault.8 Unable to play with his companions, he became an avid reader from his father’s large library and acquired a life-long love of classical literature. In Leaven-worth, McCook intended to make a name for himself, and perhaps make his fortune as well. He initially partnered with John Pendery and David Bailey. Collection law was a big part of small practices in those days, and Pendery sent McCook to visit the Colorado gold fields in search of wayward debtors. McCook found the life of constant travel in mining towns beyond his ability to cope, given his childhood. Prior to McCook’s arrival, the firm of Sherman and Ewing “didn’t have any practical lawyers in it,” Pendery later noted for a family history, and at the request of Tom Ewing, Pendery was persuaded to allow McCook to become Ewing’s partner and trial specialist.9

         Te new firm in Leavenworth was successful. Many settlers were from Ohio and Indiana, and the Ewing and McCook names and political prominence resulted in the firm's getting some high profile cases, even before the U.S. Supreme Court.10 It also helped that the Leavenworth firm could count on the support of Thomas Ewing St., the Ewing patriarch and, at that time, the most pre-eminent real estate attorney in the country.

         McCook, like all of the Ohio McCooks, was a Douglas Democrat and a disciple of Stephen A. Douglas, but seeing Bleeding Kansas up close changed some of his views. Given the penchant for rigged elections in the territory11 McCook wrote his family that Judge Douglas, the author of the Kansas-Nebraska Act, was wrong on I whether Popular Sovereignty would solve the national problems caused by slavery12

         The only problem for Sherman, Ewing and McCook was the lack of legal business in Leavenworth. There were too many lawyers and not enough paying clients. Moreover, the legislature, to encourage an influx of citizens from other states, had placed a very short statute of limitations on the ability of out-of-state creditors to sue debtors who had homesteaded in Kansas. That was fine for immigration numbers, but local lawyers suffered for lack of out-of-state collections work. Despite the dearth of collections work, McCook did defend a high profile murder case.13"I am doing well at my profession," McCook wrote to a friend. He appreciated the partnership with "the sons of Old Tom Ewing and Captain Sherman, Ewing's son in law."14

         The firm's involvement in a high profile Fugitive Slave Act15 case brought more notoriety. Missouri slave catchers tried to abduct Charlie Fisher, a freedman, from the Planters' Hotel barber shop in Leavenworth, where he worked, intending to sell him back into slavery. En route to Missouri, Fisher escaped, swam the river back to Leavenworth, and went into hiding. When the slave capturers returned, they were arrested for kidnapping by local authorities. The slave capturers argued they were acting under authority of...

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