Bernard Bertholf Smyth
This page is dedicated to the memory of my grandfather, Bernard "Bart" Smyth, whom I had the pleasure of learning to know far too late in life.
I treasure the time we had together. He was the finest of people -- an honorable man who lived up to his beliefs and who brought joy to all his children through his generosity of spirit, his kindness, and his humanity.
We miss him dearly.
The Smyth Family History
COUNTY CAVAN, ULSTER, IRELAND
(Click on the map for more information about County Cavan.)
There was a "Mac an Ghabhainn" sept located in Cavan near the border with Co. Leitrim. Some members of the O'Ghabhainn sept of Co. Down were transplanted to Cavan during the reign of Queen Elizabeth because they helped the O'Neills.
Eventually, these names became anglicised as MacGowan, O'Gowan, Smith, or Smyth. These names are also very common in neighboring counties as well. Many Smiths and MacGowans served in the Irish armies in the seventeenth century and later in French and American brigades as well.
Brigadier General Thomas Smyth served in the American Civil War, 1861-1865.
Major General Eric Dorman-Smith, born 1895 at Bellamont Forest, Cootehill, Co. Cavan was a brilliant military tactician and was the mastermind behind the plan that stopped Rommel dead in his tracks at the first battle of Alamein. His nephew, Sir Reginald Dorman-Smith, was Governor of Burma at the time of the Japanese invasion during the second world war.
Constantine attended a private school in Brooklyn, probably with the sponsorship of his uncle and, after his uncle's death in about 1878, he joined the westward tide of immigrants following the new railroads across America. The Omaha newspaper later wrote of him at this time as being "friendless and penniless."
He stopped first in Chicago, but after only a few weeks,
he became so dissatisfied by the big city that he hitched a ride on a
freight car, destination: the frontier town of
A determined young man, he folded papers for the
old Omaha Herald, sleeping under
his counter at the Herald office, and going to school at
during the day. In the words of his family, he was
"smart, charming and ambitious,"
and by 1882, he had graduated from Creighton with a
Master of Arts degree. He decided he
wanted to be a lawyer and studied law at night, under
the tutelage of John D. Howe and
Herbert J. Davenport, while working days in the
office of the freight auditor for the
Union Pacific Railroad Company.
By 1885, he was well enough versed in the law to be admitted to the Nebraska Bar and begin a practice in Omaha. By 1888, he became a member of the law firm of Mahoney, Minnahan & Smyth, a firm that, with the withdrawal of Mr. Minnahan in 1892, became the aptly named firm of Mahoney & Smyth.
Constantine remained an ambitious man, though, and clearly a popular one as well, for in 1896, he was elected Attorney General of Nebraska, an office he held until 1900.
As Attorney General, he quickly became known as an opponent of special interests. While it's hard to say what impact working for the Union Pacific had had on the young man, he soon developed a national reputation as a foe of big business. He actively pursued and won a number of cases that had an important bearing far beyond his adopted state.
As his grandson reports, "the press thoroughly enjoyed his trust busting activities for most of a decade and made heroes out of trust busters like Lawyer Smyth. He became well known to Presidents, other Attorneys General, and other influential people in Washington...."
During this time, Smyth, ever the idealist, prosecuted both the Nebraska State Treasurer and the State Auditor, risky undertakings for any politician, let alone a relative political novice. The Treasurer, J. S. Bartley, was sentenced to twenty years in prison for embezzlement. The State Auditor, Eugene Moore, was at first exonerated by the Supreme Court, which found, in a most convoluted decision, that "the fees were not embezzled inasmuch as Moore simply had no right to receive them...." The money was later paid to the state by the insurance companies involved, and on this ground, Moore escaped the charges against him.
In one of his most famous cases, Smyth obtained a rehearing and a modification of the decree in the celebrated NEBRASKA MINIMUM FREIGHT RATE CASE, which had originally gone against the state before he took office. This victory restored the state's right to regulate freight rates, which had been almost taken away altogether in the earlier decision.
Never one to shy away from a fight, he then took on two of the largest companies in America. The strong case he brought against American Telephone & Telegraph Company resulted in the separation of AT&T from the equally monolithic Western Union Telegraph Company, a decision with implications in telecommunications to this day. He also, as a result of his aggressive prosecution of California land fraud cases, helped the government recover land and timber estimated at between $30,000,000 and $50,000,000 –- a significant amount of money, particularly at the turn of the century.
He won many cases in the high courts under the Sherman act and the Clayton act, including one memorable "trust-busting" case against the United Shoe Machinery Company. Then, seeking greener pastures, he retired as Attorney General and formed a partnership with Edward P. Smith, under the name of Smyth & Smith. Now, the Irish immigrant had his own name first on the letterhead.
As he had done in public service, Smyth continued in his private practice, where he won a number of important cases. On behalf of his successor in the Office of Attorney General, he intervened in a state case that threatened to take away inheritance money intended for the Working Girls' Home in Omaha, and by court decree, he managed to obtain the full amount of Count Creighton's bequest to the home.
Smyth continued to be involved in politics for the rest of his life, but he also answered the calling of a different world – one that also satisfied his strong belief in public service – the world of academia. Not surprisingly, he was immensely popular and successful here as well. From 1905 to 1910, he was Associate Dean and Professor of Law at the College of Law at Creighton University.
In 1913, he was drawn back into the world of government and politics when he was chosen as a Special Assistant to the Attorney General of the United States, a position followed in 1917 by his elevation to the position of Chief Justice of the Circuit Court of Appeals of the District of Columbia, only the third person ever to hold the position.
Here, he used his charisma and thorough knowledge of the law to preside over the most senior court of appeals in the nation, and win the respect and admiration of both his many colleagues and friends, and his legal opponents.
He remained a man of strong convictions however, who firmly believed in the rule of law, and he earned the nickname of "The Dissenter" for his willingness to publicly disagree when he thought he was right. In fact, he filed more dissenting opinions than any other judge on the local appellate bench at the time. (However, it should be noted that a number of these dissenting views were later upheld by the U.S. Supreme Court, and some of his opinions are still used as examples of judiciary excellence by law schools around the country.)
As the Georgetown Law Journal noted, "In the exposition of legal principles, his manner was severely logical...though a scholar, his judicial style is exceedingly simple, direct and rarely ornate..."
He held a number of other positions over the course of his long and active life. He was a member of the Nebraska Legislature in 1887, where he was reinforced his image as an opponent of special privilege. From 1889 to 1894, he was a member of the Omaha Board of Education. He was Chairman of the Democratic State Central Committee from 1894 to 1896; Chairman of the Nebraska Delegation to the Democratic National Conventions of 1896 and 1904, a Delegate to the national conventions of 1900 and 1908, and the Democratic Nominee for Governor in 1898 and 1902. He was elected President of the Nebraska Bar Association in 1916. Creighton University conferred upon him an honorary Doctorate of Law in 1918, calling him "Creighton's best known alumnus..."
He acted as permanent chairman of the Democratic State Convention at Grand Island, when many Democrats took issue with Presidential Democratic Nominee William Jennings Bryan, and, ever a man firm in his convictions, he stood with Bryan through the free silver campaigns, with the result that one of his law firms was disrupted and dissolved.
From 1920 to 1924, he served as professor at the well respected College of Law at Georgetown University, in Washington, D.C.
He was a Catholic who was very active in parish work in Omaha, a member of the Knights of Columbus, and was received in audience by the Pope in 1923.
He was married on January 7, 1889, to Katherine F. Murphy, the daughter of Thomas Murphy of Omaha. They had five children: Rose, wife of Clarence Sibbernsen; Catherine, wife of Charles Burgess, both of Omaha; Bernard of Washington, D.C.; Edward, and Constantine Joseph Smyth, Jr., both of New York City.
He died of cancer on April 14, 1924 in Rochester, Minnesota, where he had gone for treatment, and he was buried back in Omaha. More than a thousand people attended his funeral services on Holy Thursday. He was eulogized as "a great man, an able lawyer... and a gentleman of the old school."
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