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JULIEN T. DAVIES
Memorial of a Leader
of the Bar

JULIEN T. DAVIES

JULIEN T. DAVIES
Memorial of a
Leader of the Bar
By
JOSEPH S. AUERBACH

Harper &" Brothers Publishers
New York and London
MCMXXl

Cl 3

4

32.203

JuLiEN T. Davies

Copyright, 1921, by Joseph S. Auerbach
Printed in the United States of America
G-V

As printed in The Forum and
The Year Book of the Bar
Association of the City of
New York for 1921.

PREFATORY NOTE
By The Honorable Nathan L. Miller,
Governor of the State of New York
JULIEN TAPPAN DAVIES was a
citizen of the biggest type; a typical
representative of the American Bar; a
successful lawyer who loved his profession
for the opportunity which it gave him to
develop the truth and establish justice;
a loyal friend; a genial companion. He
left behind him the affection and good
will of all who knew him, I know of no
one better able to speak of him, his work
and high ideals than the author of the
following Memorial.
And my sincere hope is that the preser
vation of the Memorial in this attractive
little volume may serve as a worthy
precedent for like tributes to the mem
ory of other distinguished members of
our profession. Nathan L. Milleb.
Executive Chambbb,
Albany, N. Y., April 27, 1921.

JULIEN T, DAVIES
Memorial of a Leader
of the Bar

JULIEN T. DAVIES
Memorial of a Leader of the Bar
WHEN asked to prepare a Me
morial of Julien T. Davies, I at
first thought that our peculiarly
intimate association as partners and friends
for more than a quarter of a century might
cause me to write of him too markedly
under the promptings of sentiment, and
that, therefore, another selection would
be preferable. Nevertheless, conference
with friends, and the reflection that not
merely activities in Court and office are
to be recounted of a Leader of the Bar
who drops out of the procession of life,
have persuaded me that our comradeship
need not interfere with preparation of a
tribute fitting to his professional eminence,
responsive citizenship and exemplary
character.

JULIEN T. DAVIES
In Mr. Davies, Judge Henry E. Davies
reared a son who was to add distinction
to the name of the father. And by reason
of the precept and example of that father
— whose memory to him always was a
great possession — of his own intellectual
equipment and the ennobling traditions of
our profession, Mr. Davies united in him
self those rare qualities which made him
the fearless advocate and the trusted as
well as resourceful adviser. Along with
an almost clairvoyant insight into com
plicated questions of law and fact for
elucidation of the truth, he had not alone
an ardent sense of fidelity to the client,
but of honorable obligation to the Court,
of which he never failed to remember it
was his privilege to be the candid officer.
Never did nobleman appraise more jeal
ously the proverbial responsibilities of
rank, than did Mr. Davies the compelling
ideals of his high calling. To be in doubt
as to the propriety of a course of conduct
was to be resolved against it; and his
whole life was a rebuke of the shallow

A MEMORIAL
cynicism that the law is what is boldly
asserted and plausibly maintained.
That such devotion to his profession was
with him a chief article of faith, no better
illustration can be given than by a quota
tion from his address before the Bar
Association of the City of New York on
the fiftieth anniversary of its existence.
On that memorable occasion he was one of
the few surviving founders of the Asso
ciation. And though ex-Senator Root
and John Proctor Clarke, the Presiding
Justice of our Appellate Division, were
the other speakers, the address of Mr,
Davies did not suflFer by comparison with
what they so acceptably said.
It is difficult to conceive what could
be taken from or added to this eulogy
without detracting from its dignity and
fitness.
In dwelling upon the work of this Association
during the past fifty years in maintaining the honor
and dignity of the profession of the law, naturally
there arises before us some mental conception of
the characteristics of that honor and dignity.
Whether one contemplates a lawyer's life and work
s

JULIEN T. DAVIES
from the standpoint of over fifty years' experience
or a few months' trial, each member of our profes
sion must feel that he has been set apart from the
mass of his fellows for a peculiar and distinct
career that demands adherence to the highest
standard of conduct. It is not essential to claim
by comparison any superiority in usefulness or
distinction of lawyers in general over those who
have chosen other spheres of activities. Fifty or a
hundred years ago, such a claim might have been
put forth with greater force than now. The greatly
increased productivity of the world, due to inven
tions and use of machinery and vastly greater
facilities of commimication and transportation,
has led to such distributed possession of wealth
and to such ease in its acquisition, that the brain-
worker, who, if he is to be actually a lawyer, and
not a broker in legal business, must pursue thought
for thought's sake, and cannot accumulate largely,
and in a community where the power of money
is held as most desirable and admirable, must
necessarily yield in importance. It is enough for
us to claim that the peculiar f eatirres of our calling
give to it all the honor and dignity that human
nature requires for complete satisfaction. First
and foremost among those characteristics is the
attitude of sympathetic helpfulness that the
counselor must assume towards him who applies
for aid, who is never allowed to depart without
receiving some thought that will assist in the dis
position of the problem presented. Then comes
the intellectual pleasure of the search for truth,
4

A MEMORIAL
for the true solution of the difficulty in the light
of reason and precedent, and the glow of satisfaction
with which a conclusion is reached, that satisfies
the searcher and that can be defended with the
strength of him who is thrice armed "who has his
quarrel just."
Who can be indifferent to the charm of exercising
one's persuasive and convincing powers, be they
ample or limited, before court or jury, or, as more
frequently occurs, upon client, associate or oppo
nent, ID the give and take of consultation? Always
as a sworn officer of the Court, always, whether in
argument, trial of a cause or consultation, engaged
as part of the machinery for the administration of
justice, always engaged in the furtherance of com
position of differences and the avoidance of private
warfare, always acting as a helper and a healer,
what more honorable and dignified course of life
can be pursued than that to which we have for
tunately devoted ourselves? In recognition of all
this, was this Association formed, has it for fifty
years pursued its useful career, and God willing,
may it be continued by our successors for the years
to come.
From the day almost of his majority
and admission to the Bar he was a familiar
figure in the Court room, before courts of
original jurisdiction and Appellate tri
bunals, where, not only by profound

JULIEN T. DAVIES
knowledge of legal principles and mastery
of the facts, but by a general culture, he
was enabled to present the finished as
well as lucid argument. Nor should such
an attainment be lightly passed over, for
no one can justly claim that in respect of
literary quality, the oral argument of
counsel to-day is, as a rule, on a level
with that of the advocates who were
Mr. Davies' contemporaries. While he
never indulged himself in rhetorical, per-
fervid utterance, he was truly eloquent in
the phrase of vigor, and precision. Under
standing full well that the language of
formal argument is not wholly appropriate
for colloquial interchange of views, he
understood, also, that slovenly speech was
to be abhorred always, and that one who
persisted in a cheap expression in or out
of court was likely to voice only cheap
thoughts. More than once he and I have
discussed the well-nigh scandalous conse
quences of the prevailing slothfulness in
these respects. The laudator temporis acti
or the panegyrist of aetas parentum is prone

A MEMORIAL
to unduly eulogistic estimate of the past.
Yet concerning the ungrateful disregard
we exhibit for our priceless inheritance of
the English language, there is little likeli
hood of any statement approaching to ex
aggeration. And, we of the Bar, if quite
candid with ourselves, must admit that
the ambitious address of many a trained
lawyer to-day often seems to strive for
rivalry and invite favorable comparison
with the jargon and slang of the street
corner. Not infrequently we are called upon
to listen to the remark, for which no slight
justification exists, that Judges have
become intolerant of oral arguments —
so infelicitously often does the lawyer
acquit himself. When, however, the force
ful, scholarly presentation is heard, the
Court can be relied upon to welcome the
novel experience, as a substantial aid in
promoting a right determination of the
cause and the preparation of the convinc
ing opinion. Our universities boast of
the many things they are teaching and
7

JULIEN T. DAVIES
of the superiority of the present-day
university curriculum to that of the Col
lege of former years Yet in the essential
matter of training the undergraduate for
disciplined expression they are lamentably
deficient. Although none knows better
than the lawyer that form is of the sub
stance of things — to the extent of deter
mining even the constitutionality of stat
utory enactment — ^he, at times, gives little
or no adequate heed to its influential effect
upon the written or oral argument.
It was an equal pleasure to hear Mr.
Davies in or out of Court, with his grace
ful, unostentatious speech made possible
by a generous vocabulary. For decla
mation was not less foreign to his nature
than that which is popularly character
ized as special pleading. Yet he never
permitted himself to believe that a cause,
however worthy, would necessarily argue
itself or his hearer to conclude that engag
ing conversation was a lost art. In pro
fessional work he was not influenced,
much less controlled, by promptings of

A MEMORIAL
vanity as to his personal achievement.
He did not even aim to feature himself
as the accomplished advocate, being will
ing to sink his individuality in the cause
he was urging; and, accordingly, victory
for the client rather than applause for
himself was the end sought for and so
frequently gained.
It is unnecessary to enumerate all the
important cases in which Mr. Davies
was engaged before the Courts of this
State or the Federal Courts or to speak
in detail of his other professional activ
ities. A few illustrations will suffice.
In the early years of his practice he
was required to give much of his time to
the searching of titles to real estate. He
was a pioneer, however, in recognizing
that such work could be more acceptably
done by corporations created to guar
antee, as well as search titles, and he
accordingly participated in the organiza
tion of the Title Guarantee & Trust Com
pany, of which he became, and continued
until his death, to be a prominent Director.

JULIEN T. DAVIES
His notable work in matters of taxa
tion attracted attention at the beginning
of his career, and he was the author of
an authoritative book on the subject.
He conducted also many important liti
gations in thfs field, involving particu
larly taxation of the shares of National
Banks; and one of the leading cases
argued by him in the United States Su
preme Court — Hills V. Exchange Bank —
established the right of stockholders to
deduct indebtedness from the assessed
value of their shares.
He was Counsel in important cases in
the United States Supreme Court involv
ing the subject of insurance, among which
are: Mutual Life Insurance Co. v. Cohen,
179 U. S.
Phinney v. Mutual Life Insurance Co.,
178 U. S.
Other well-known cases which he argued
in the Supreme Court of the United States,
and in other Courts of Appeal, are:
10

A MEMORIAL
Rogers v. New York & Texas Land
Co., 134 N. Y.
Matter of New York & Long Island
Bridge Co., 148 N. Y.
Havana Central Railroad v. Ejiicker-
bocker Trust Co., 198 N. Y.
Knickerbocker Trust Co. v. Evans,
188 Fed.
Brushaber v. Union Pacific R. R. Co.,
240 U. S.
Upon the failure of the firm of Grant
& Ward, in 1884, of which ex-President
Grant was one of the chief victims, he
was appointed Receiver of its assets, a
position which he held, and a trust which
he discharged with signal credit.
It will be seen from this brief reference
to his professional life that Mr. Davies
was a general practitioner, in the old and
honored sense of the term. His identi
fication with the vast number of suits
involving claims against the Manhattan
Railway Company for damages by owners
of property abutting on the streets occu-
11

JULIEN T. DAVIES
pied by the elevated structures should,
however, be specially referred to. To
carry on this exacting litigation he created
a special law department, of which he
was the active head; and as an illus
tration of the volume of the work, it
should be added that for a long period
the calendar of our Supreme Court of
original jurisdiction was congested with
these cases, and more than two thousand
of them were tried at Special and Trial
Terms, and nearly one thousand Appeals
were argued.
The quality of the work, too, was on
a par with its volume, and it is quite safe
to say that but for his brilliant efforts in
restricting the amounts recovered against
the Company, its control would have
passed permanently from its owners into
the hands of judgment creditors. He
obtained a decision from the Court of
Appeals upholding the contention of the
Company, that benefits to abutting prop
erty should be considered in the estima
tion of consequential damages. In
12

A MEMORIAL
another case, the correctness of the insist
ence by the Company to a prescriptive
right to maintain its structures in the
streets, after twenty years of unchal
lenged and adverse possession, was finally
established. In still another case, the
judgment of the Court below denying
the claim of the abutting owner to an
absolute injunction against a third track
upon the elevated structure was affirmed,
although it had been held that the Com
missioners who authorized and approved
of the third track had acted in excess of
their povt^ers. Again, he succeeded in
sustaining, against the formidable objec
tions of dissenting stockholders, the valid
ity of the so-called Tripartite Agreement
which had made possible the organiza
tion and continued existence of the Com
pany. Nor should reference to his identifica
tion with the resumption of business by
the Knickerbocker Trust Company of
New York be omitted, for the circum
stance was not only of vital consequence
13

JULIEN T. DAVIES
to the community, but in a real sense to
the country generally.
In 1907, the Knickerbocker Trust Com
pany, with scores of millions of deposits,
had failed and a national financial panic,
which the suspension precipitated or mate
rially contributed to, ensued. It was
assumed by the public that the suspension
would go the way of similar suspensions,
and that the Receivers would distribute
what remained of the assets to depositors
and stockholders. A Committee on Re
sumption, however, was formed by prom
inent directors and other persons in the
community, and Mr. Davies, whose firm
had been Counsel to the Company, was
selected as its chief adviser. Very largely
by reason of his indomitable patience
which partook of genius, his tact and
untiring and creative energy, resumption
of business by the Company was brought
about, to be followed by consolidation
with the Columbia Trust Company — the
new company being styled the Columbia-
Knickerbocker Trust Company and after-
14

A MEMORIAL
wards the Columbia Trust Company.
There had been no instance in the history
of financial institutions where a like failure
was not followed by a perfunctory liqui
dation of the embarrassed company.
Though I have spoken of Mr. Davies'
courage, its unique quality may well be
emphasized; for it was not only courage
in the practice of his profession but in
his daily walk of life. He and fear kept
no company. And it can be as truly said
of Mr. Davies as it was said of Mr. Choate
by Mr. Root in his illuminating Memorial
Address before the Bar Association of
the City of New York: "He was wholly
free of any impediment of timidity. This
quality did not impress one as being the
kind of courage which overcomes fear,
but, rather, a courage which excluded fear.
With him, no such emotion as fear seemed
to exist."
Once in a case of more than ordinary
importance, wherein our firm represented
the defendant corporation against which
a mortgage lien was being foreclosed by
15

JULIEN T. DAVIES
one of the prominent trust companies of
this city, a well-known business man had
been agreed upon as Receiver of the prop
erty by the respective parties. A dis
turbing rumor made Counsel solicitous
lest an equally well-known politician of
not altogether savory record be appointed
by the Court. It was determined, there
fore, to discontinue the action and thus
avoid the possibility of any such calamity.
Accordingly, Mr. Davies, in company
with the Counsel for the Trust Company,
asked of the Judge before whom the appli
cation came, what was the clear right of
the litigants, that an order of discontin
uance be signed forthwith. The Judge
hesitated, almost to the extent of declin
ation, to carry out the agreement, and
his whole attitude was fairly substantial
confirmation of the rumor. Mr. Davies
pressed the point and — announcing an
intention to remain until the application
had been granted — admonished the Judge
in solemn, unequivocal language that
further hesitation was not prudential.
16

A MEMORIAL
Whereupon the Judge, exhibiting no little
unseemly display of temper, signed the
order with reluctant pen and flung rather
than handed it to Mr. Davies.
He had, too, another kind of courage,
such as few men had ever possessed —
that imperturbable, stoic fortitude which
rises superior to the grief which so often
dries up the springs of endeavor and even
hope. That spurious philosophy of La
Rochefoucauld, which triumphs over past
and future evils but which permits pres
ent evils to triumph over it, was no part
of Mr. Davies' creed of life. Three of
his children died in their youth, then Mrs.
Davies, and later two grown sons, one a
member of our firm and the other a banker,
after the torture of long illness, and last,
a daughter very dear to him. Yet under
such cumulative affliction he did not falter
but found tranquillity, and it may have
been solace, in the stern summons of duty.
And at the end there was but one child
— a beloved daughter — to follow him to
the grave. Surely life to Mr. Davies
17

JULIEN T. DAVIES
was in some respects a very grim busi
ness. Tenacious in receiving recognition of
what was due him — over-tenacious, per
haps, from the point of view of some
modern-day loose thinking on the subject
— ^he was reciprocal in this towards others.
For no persons, however humble of posi
tion, needed to plead with him for their
rights, since one of the joys of his life was
to accord such recognition without any
plea. Once an office boy in the employ
of our firm had been called to rather sum
mary account by Mr. Davies for some
supposed neglect or misconduct. It trans
pired that the boy was not blameworthy
and I mentioned the fact to Mr. Davies,
who thereupon sent for him, and, on learn
ing the facts, not only apologized to the
boy as to an equal, but criticized him
because he had not on the first occasion
insisted upon stating the facts. Of uni
form courtesy to persons in his own walk
of life, Mr. Davies never neglected to
extend to all about him the little amenities
18

A MEMORIAL
of life which so many of us are disposed
to forget. He loved, of all things, to
award merited praise, and he would have
been as willing to pick a pocket as to
appropriate credit not belonging to him
self. Nor did he ever fail of thoughtful-
ness to those who had ministered to his
success or comfort; and to the employees
of his office and of his household he made
by Will generous bequests, varying with
the terms of their service.
No worthy appeal to which he was able
to respond was ignored; and this gener
osity was of that higher quality which
gives abundantly of one's self. For not
a few well-known lawyers of to-day can
attribute some of their repute at the Bar
to the fact, that Mr. Davies not only
pointed out to them in youth the prudent
way, but in a true sense, through sympa
thetic, stimulating counsel, took them by
the hand and went with them part of the
journey. Moreover, his abounding charity
was such, that in all my years of intimacy
with him I never knew him wittingly to
19

JULIEN T. DAVIES
harbor an unkind thought or a petty
grievance or to utter an ungracious word.
He had no more liking for professional
altruism than for any other manifestation
of pretense, nor did he crave a specious
popularity gained so often at the sacrifice
of one's self-respect. And though no one
more than he loved the exhilaration of
intercourse with friends, solitude for him
was peopled by a goodly company of
congenial thoughts. A man of sentiment,
sentimentality was repellant to him.
Spiritual in thought and often a dreamer
of quickening dreams, he was practical
always in the best sense; and none better
than he realized that "while arrows are
to be aimed at the stars, they can at the
same time be shot in directions likely to
transfix and bring down something for
the urgent needs of earth." Accordingly
he was able to say with Walt Whitman :
I am afoot with my vision.
A well-balanced man, he attained to a
discriminating judgment as to men and
20

A MEMORIAL
things which often seemed unerring, and
conference with him was a kind of inspira
tion to his associates. Devoid of sym
pathy or even tolerance for new-fangled
notions, with little or nothing but novelty
to justify their currency, he was progres
sive in thought and deed, whilst holding
fast always to the principles and institu
tions which had survived the discerning
test of Time. Yet if I were asked to
feature his one distinguishing trait of
character it would be his unswerving love
and passion for the Truth, with which he
would tolerate no paltering and no com
promise. That with him was a religion.
When past middle life Mr. Davies was
warned that his impaired physical health
due to over-work was such that he must,
if he wished to prolong his days, take up
some diversion which would compel him
to be out of doors. Thereupon he became
an expert shot and ardent fisherman;
and thereafter we, now and then when
in reprehensively facetious mood, ex
changed the view that in man's Consti-
n

JULIEN T, DAVIES
tution, too, there should be a Thirteenth
Amendment, Unlike so many intellectual
men that yield to enslaving demands
upon their requisite leisure, Mr, Davies
drank deep of the miraculous Chalice
proferred us by Nature, wherefrom we
may, if we will, receive wisdom and
strength and high resolve, with the saving
grace of serenity and joy. And many
were the hours of delight we passed profit
ably together as industrious idlers in
wading a trout brook or on a salmon
river, in the duck blind or with gun and
dog in the field. He heeded well the
sanity of the injunction :
To mix his blood with sunshine and to take
The winds into his pulses.
According to his frequently voiced hope
he continued always actively with pro
fessional work, dying in the harness of
routine, as Emerson expresses it; and to
the last his mental powers and resource
fulness remained unimpaired, whether in
the controversy of Court Room, in advice
22

A MEMORIAL
to client, or in consultation with associ
ates or opponents. Nor did the advanc
ing years bring to him any of the grue
some thoughts catalogued in that unin
viting, spiritless poem of Mathew Arnold,
Growing Old. On a professional errand
in Boston, he was stricken down with
pneumonia; and afterwards, when near
to recovery, a clot of blood gathering at
the knee — the recurrence of an old ail
ment — ^was released, and he died of embo
lism of the heart. It was at Phillips
Houseman Annex of the Massachusetts
General Hospital — overlooking the Charles
River Embankment and almost out of
doors with window raised and to the song
of birds, that the end came in the fullness
of his fruitful years.
His burial, too, was with the benedic
tion of what Henley calls a shining peace.
Of all sports flshing, perhaps, was most
appealihg to him; and one of our firm,
who had gone in advance of others with
the flower-car to the family cemetery at
Fishkill, witnessed this: An old fellow
23

JULIEN T. DAVIES
of the vicinage, with fishing basket —
not the creel — on his arm, and a pole —
not a rod — over his shoulder, and in
typically homely attire, was, to all appear
ance, returning from some neighboring
trout stream. After a significant pause
he turned and preceded the hearse to the
grave; and then with sympathetic mien
and solemn step, he walked away. Per
haps it may be thought by some that this
little journey of the old fisherman merely
afforded him a short cut to his home, but
I prefer rather to believe he was present
there to wish a kindred spirit Good Luck!
And when I asked of the Rector of Grace
Church — who had read the committal ser
vice and the all-embracing Gladstone
prayer, to the accompaniment of the song
of a wood thrush on a near-by tree —
whether he did not agree with me that
Mr. Davies, in some way, somewhere,
must have known of this touching inci
dent, he expressed himself as sure it was so.
His life was one of unremitting energy
— ^he would not wish me to say toil — and
24

A MEMORIAL
fine achievement, with many honors and
not a little grievous sorrow. He con
tributed to the common weal from the
day when, deserting his studies, he enlisted
in the Civil War, to become one of the
veterans of the Grand Army. Moreover,
he manifested this virtue as I once said,
in a Memorial Address, the late Bishop
Henry C. Potter had manifested it — not
only during emergencies when the vol
unteers are many, but likewise at ordinary
times when it seems often necessary to
draft even men of conscience and power
into the public service. For though he
neither filled nor sought to fill public
office, there was no cause which made
for more salutary political or social con
ditions that was not sure of Mr. Davies'
cordial alliance and heartening co-opera
tion. Throughout his life he fought a
good fight and kept the faith; and on
the monument over his grave is to be the
Requiem of Stevenson, which seems
especially written for him, and which he
loved so much in its exquisite, stirring
Homer-music setting. 25

JULIEN T. DAVIES
Incapable intellectually of giving cre
dence to the forbidding orthodoxy of
yesterday, he was reverently religious;
and his abiding trust in an eternal right
eousness was disquieted neither by doubt
nor by what must have seemed to him,
at times, the untempered dispensations
of Fate or Providence. He never per
mitted his sense of civic responsibility
to be daunted by public apathy or error;
with reassuring word and hand he lifted
up many a man that had stumbled and
was in sore need; of the cause of good
government, under indictment by blatant
or insidious demagogy, he was the inspirit
ing advocate; he added distinction to a
great profession; and after his work was
over and he was able to leave, to that
profession and the community and to
those who loved him so much, the proud
legacy of an unsullied name and an
unimpeachable example of right thinking
and right living, he laid down his life, as
the Requiem of Stevenson says, with a
will. THE END

^'ALE UNIVERSITY LIBRARY^"

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