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 was done.”

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 a............