Then, too, due to one whisper and another, and these originating with the girl who had written Butler and Cowperwood's wife, there was at this time a growing volume of gossip relating to the alleged relations of Cowperwood with Butler's daughter, Aileen. There had been a house in Tenth Street. It had been maintained by Cowperwood for her. No wonder Butler was so vindictive. This, indeed, explained much. And even in the practical, financial world, criticism was now rather against Cowperwood than his enemies. For, was it not a fact, that at the inception of his career, he had been befriended by Butler? And what a way to reward that friendship! His oldest and firmest admirers wagged their heads. For they sensed clearly that this was another illustration of that innate "I satisfy myself" attitude which so regulated Cowperwood's conduct. He was a strong man, surely-and a brilliant one. Never had Third Street seen a more pyrotechnic, and yet fascinating and financially aggressive, and at the same time, conservative person. Yet might one not fairly tempt Nemesis by a too great daring and egotism? Like Death, it loves a shining mark. He should not, perhaps, have seduced Butler's daughter; unquestionably he should not have so boldly taken that check, especially after his quarrel and break with Stener. He was a little too aggressive. Was it not questionable whether-with such a record-he could be restored to his former place here? The bankers and business men who were closest to him were decidedly dubious.
But in so far as Cowperwood and his own attitude toward life was concerned, at this time-the feeling he had-"to satisfy myself"Ц when combined with his love of beauty and love and women, still made him ruthless and thoughtless. Even now, the beauty and delight of a girl like Aileen Butler were far more important to him than the good-will of fifty million people, if he could evade the necessity of having their good-will. Previous to the Chicago fire and the panic, his star had been so rapidly ascending that in the helter-skelter of great and favorable events he had scarcely taken thought of the social significance of the thing he was doing. Youth and the joy of life were in his blood. He felt so young, so vigorous, so like new grass looks and feels. The freshness of spring evenings was in him, and he did not care. After the crash, when one might have imagined he would have seen the wisdom of relinquishing Aileen for the time being, anyhow, he did not care to. She represented the best of the wonderful days that had gone before. She was a link between him and the past and a still-to-be triumphant future.
His worst anxiety was that if he were sent to the penitentiary, or adjudged a bankrupt, or both, he would probably lose the privilege of a seat on 'change, and that would close to him the most distinguished avenue of his prosperity here in Philadelphia for some time, if not forever. At present, because of his complications, his seat had been attached as an asset, and he could not act. Edward and Joseph, almost the only employees he could afford, were still acting for him in a small way; but the other members on 'change naturally suspected his brothers as his agents, and any talk that they might raise of going into business for themselves merely indicated to other brokers and bankers that Cowperwood was contemplating some concealed move which would not necessarily be advantageous to his creditors, and against the law anyhow. Yet he must remain on 'change, whatever happened, potentially if not actively; and so in his quick mental searchings he hit upon the idea that in order to forfend against the event of his being put into prison or thrown into bankruptcy, or both, he ought to form a subsidiary silent partnership with some man who was or would be well liked on 'change, and whom he could use as a cat's-paw and a dummy.
Finally he hit upon a man who he thought would do. He did not amount to much-had a small business; but he was honest, and he liked Cowperwood. His name was Wingate-Stephen Wingate-and he was eking out a not too robust existence in South Third Street as a broker. He was forty-five years of age, of medium height, fairly thick-set, not at all unprepossessing, and rather intelligent and active, but not too forceful and pushing in spirit. He really needed a man like Cowperwood to make him into something, if ever he was to be made. He had a seat on 'change, and was well thought of; respected, but not so very prosperous. In times past he had asked small favors of Cowperwood-the use of small loans at a moderate rate of interest, tips, and so forth; and Cowperwood, because he liked him and felt a little sorry for him, had granted them. Now Wingate was slowly drifting down toward a none too successful old age, and was as tractable as such a man would naturally be. No one for the time being would suspect him of being a hireling of Cowperwood's, and the latter could depend on him to execute his orders to the letter. He sent for him and had a long conversation with him. He told him just what the situation was, what he thought he could do for him as a partner, how much of his business he would want for himself, and so on, and found him agreeable.
"I'll be glad to do anything you say, Mr. Cowperwood," he assured the latter. "I know whatever happens that you'll protect me, and there's nobody in the world I would rather work with or have greater respect for. This storm will all blow over, and you'll be all right. We can try it, anyhow. If it don't work out you can see what you want to do about it later."
And so this relationship was tentatively entered into and Cowperwood began to act in a small way through Wingate.Chapter XLVIII
By the time the State Supreme Court came to pass upon Cowperwood's
plea for a reversal of the lower court and the granting of a new
trial, the rumor of his connection with Aileen had spread far and
wide. As has been seen, it had done and was still doing him much
damage. It confirmed the impression, which the politicians had
originally tried to create, that Cowperwood was the true criminal
and Stener the victim. His semi-legitimate financial subtlety,
backed indeed by his financial genius, but certainly on this account
not worse than that being practiced in peace and quiet and with
much applause in many other quarters-was now seen to be
Machiavellian trickery of the most dangerous type. He had a wife
and two children; and without knowing what his real thoughts had
been the fruitfully imaginative public jumped to the conclusion
that he had been on the verge of deserting them, divorcing Lillian,
and marrying Aileen. This was criminal enough in itself, from
the conservative point of view; but when taken in connection with
his financial record, his trial, conviction, and general bankruptcy
situation, the public was inclined to believe that he was all the
politicians said he was. He ought to be convicted. The Supreme
Court ought not to grant his prayer for a new trial. It is thus
that our inmost thoughts and intentions burst at times via no known
material agency into public thoughts. People know, when they
cannot apparently possibly know why they know. There is such a
thing as thought-transference and transcendentalism of ideas.
It reached, for one thing, the ears of the five judges of the State Supreme Court and of the Governor of the State.
During the four weeks Cowperwood had been free on a certificate of reasonable doubt both Harper Steger and Dennis Shannon appeared before the judges of the State Supreme Court, and argued pro and con as to the reasonableness of granting a new trial. Through his lawyer, Cowperwood made a learned appeal to the Supreme Court judges, showing how he had been unfairly indicted in the first place, how there was no real substantial evidence on which to base a charge of larceny or anything else. It took Steger two hours and ten minutes to make his argument, and District-Attorney Shannon longer to make his reply, during which the five judges on the bench, men of considerable legal experience but no great financial understanding, listened with rapt attention. Three of them, Judges Smithson, Rainey, and Beckwith, men most amenable to the political feeling of the time and the wishes of the bosses, were little interested in this story of Cowperwood's transaction, particularly since his relations with Butler's daughter and Butler's consequent opposition to him had come to them. They fancied that in a way they were considering the whole matter fairly and impartially; but the manner in which Cowperwood had treated Butler was never out of their minds. Two of them, Judges Marvin and Rafalsky, who were men of larger sympathies and understanding, but of no greater political freedom, did feel that Cowperwood had been badly used thus far, but they did not see what they could do about it. He had put himself in a most unsatisfactory position, politically and socially. They understood and took into consideration his great financial and social losses which Steger described accurately; and one of them, Judge Rafalsky, because of a similar event in his own life in so far as a girl was concerned, was inclined to argue strongly against the conviction of Cowperwood; but, owing to his political connections and obligations, he realized that it would not be wise politically to stand out against what was wanted. Still, when he and Marvin learned that Judges Smithson, Rainey, and Beckwith were inclined to convict Cowperwood without much argument, they decided to hand down a dissenting opinion. The point involved was a very knotty one. Cowperwood might carry it to the Supreme Court of the United States on some fundamental principle of liberty of action. Anyhow, other judges in other courts in Pennsylvania and elsewhere would be inclined to examine the decision in this case, it was so important. The minority decided that it would not do them any harm to hand down a dissenting opinion. The politicians would not mind as long as Cowperwood was convicted-would like it better, in fact. It looked fairer. Besides, Marvin and Rafalsky did not care to be included, if they could help it, with Smithson, Rainey, and Beckwith in a sweeping condemnation of Cowperwood. So all five judges fancied they were considering the whole matter rather fairly and impartially, as men will under such circumstances. Smithson, speaking for himself and Judges Rainey and Beckwith on the eleventh of February, 1872, said:
"The defendant, Frank A. Cowperwood, asks that the finding of
the jury in the lower court (the State of Pennsylvania vs. Frank
A. Cowperwood) be reversed and a new trial granted. This court
cannot see that any substantial injustice has been done the
defendant. [Here followed a rather lengthy resume of the history
of the case, in which it was pointed out that the custom and
precedent of the treasurer's office, to say nothing of
Cowperwood's easy method of doing business with the city
treasury, could have nothing to do with his responsibility for
failure to observe both the spirit and the letter of the law.] The obtaining of goods under color of legal process went on Judge Smithson, speaking for the majority may amount to larceny. In the present case it was the province of the jury
to ascertain the felonious intent. They have settled that
against the defendant as a question of fact, and the court
cannot say that there was not sufficient evidence to sustain
the verdict. For what purpose did the defendant get the check?
He was upon the eve of failure. He had already hypothecated
for his own debts the loan of the city placed in his hands for
sale-he had unlawfully obtained five hundred thousand dollars
in cash as loans; and it is reasonable to suppose that he
could obtain nothing more from the city treasury by any
ordinary means. Then it is that he goes there, and, by means
of a falsehood implied if not actual, obtains sixty thousand
dollars more. The jury has found the intent with which this
It was in these words that Cowperwood's appeal for a new trial was denied by the majority.
For himself and Judge Rafalsky, Judge Marvin, dissenting, wrote:
"It is plain from the evidence in the case that Mr. Cowperwood
did not receive the check without authority as agent to do so,
and it has not been clearly demonstrated that within his
capacity as agent he did not perform or intend to perform the
full measure of the obligation which the receipt of this check
implied. It was shown in the trial that as a matter of policy
it was understood that purchases for the sinking-fund should
not be known or understood in the market or by the public in
that light, and that Mr. Cowperwood as agent was to have an
absolutely free hand in the disposal of his assets and
liabilities so long as the ultimate result was satisfactory.
There was no particular time when the loan was to be bought,
nor was there any particular amount mentioned at any time to
be purchased. Unless the defendant intended at the time he
received the check fraudulently to appropriate it he could not
be convicted even on the first count. The verdict of the jury
does not establish this fact; the evidence does not show
conclusively that it could be established; and the same jury,
upon three other counts, found the defendant guilty without
the semblance of shadow of evidence. How can we say that
their conclusions upon the first count are unerring when they
so palpably erred on the other counts? It is the opinion of
the minority that the verdict of the jury in charging larceny
on the first count is not valid, and that that verdict should
be set aside and a new trial granted."
Judge Rafalsky, a meditative and yet practical man of Jewish extraction but peculiarly American appearance, felt called upon to write a third opinion which should especially reflect his own cogitation and be a criticism on the majority as well as a slight variation from and addition to the points on which he agreed with Judge Marvin. It was a knotty question, this, of Cowperwood's guilt, and, aside from the political necessity of convicting him, nowhere was it more clearly shown than in these varying opinions of the superior court. Judge Rafalsky held, for instance, that if a crime had been committed at all, it was not that known as larceny, and he went on to add:
"It is impossible, from the evidence, to come to the
conclusion either that Cowperwood did not intend shortly to
deliver the loan or that Albert Stires, the chief clerk, or
the city treasurer did not intend to part not only with the
possession, but also and absolutely with the property in the
check and the money represented by it. It was testified by
Mr. Stires that Mr. Cowperwood said he had bought certificates