A GROUP OF BOSTON LAWYERS--MR. OLNEY AND VENEZUELA
A name still remembered in Massachusetts is that of Judge Thomas of
the Supreme Court, the court of highest jurisdiction in that State,
and one of the few State courts whose decisions have always been
cited with respect in the Supreme Court of the United States. It was
recruited largely from the Suffolk Bar. The Boston Bar was known as
the Suffolk Bar, the name of the county. But, of course, other parts
of the State supplied judges, and Worcester County was one. Judge
Thomas lived and practised law in the town of Worcester. He
practised politics also, of a very energetic kind, being a good
platform speaker and a good organizer. There used to be a story that
one morning, in the heat of an exciting campaign, Thomas knelt at
family prayers and began his invocation to the Almighty:
"Fellow-citizens and Whigs of Worcester County."
However that may be, he was a successful lawyer, a successful judge,
and had attractive qualities not always to be found at the Bar. I
{75} will tell you in a moment in what way he connects himself
permanently with national and international history. I came to know
about it because it was before Judge Thomas that I tried, at _nisi
prius_, and lost, my first case in the Supreme Court. When the jury
had delivered their wrongful verdict, and been sent about their
business, Judge Thomas called me up and spoke to me with a kindness I
have never forgotten. He thought I had tried my case well, told me I
should do well at the Bar, and offered, very generously, to help me
if he could. After a time he resigned his seat on the Bench and went
into practice in Boston. A little later I called on him and asked
whether he had room for a junior in his office. "There would have
been room if you had applied earlier," said Judge Thomas. "But I
have just been told by my daughter that she has engaged herself to a
young lawyer, and he is to have the place I should otherwise have
been glad to offer you."
The name of that young lawyer was Richard Olney. It fell to my lot
to see something of him in Washington forty years later, when he was
Secretary of State under President Cleveland. I saw him for some
weeks, during the height of the Venezuela crisis, almost daily.
Whether I shall ever be allowed to tell the whole story of what went
on during those weeks I do not know. If I were Mr. Olney I would
give my assent to the publishing of a complete statement. I say that
because, in my judgment, we owe it to Mr. Olney--and among Americans
to him {76} only--that a way out of the difficulty in which President
Cleveland's Message had landed us was ultimately found. I know how
it was found, and except Mr. Olney himself, I don't think any other
American knows. I am aware of the explanations which Mr. Cleveland
published in _The Century Magazine_, and I think them models of
unintentional disingenuousness. Moreover, I had means of knowing
what was said and done on this side, in England, in the Foreign
Office and elsewhere, during those dangerous weeks; and I know why
the settlement was postponed till next summer, when the American
people, at white heat during December, 1895, and January, 1896, had
cooled off and forgotten there was any crisis at all.
But if I never had a chance of saying more, I wish to say now that
Mr. Olney did a great service to his country, and to both countries;
one of the greatest ever done by any man in his position, or in
almost any position. I think Mr. Cleveland became aware that he had
acted rashly and with no full knowledge of the history of that
boundary-line between British Guiana and Venezuela which he announced
to the world his intention to re-draw to suit himself, with menace of
war to Great Britain. I don't forget Mr. Olney's share in the
dispatch of July, 1895, which began the trouble. He and Mr.
Cleveland concocted that extraordinary document between them at Gray
Gables. I suppose he knew also of Mr. Cleveland's Message to
Congress, December 12th, and perhaps approved of it--indeed, he must
{77} have approved of it or resigned. He must also have been
responsible for the second dispatch calling upon Lord Salisbury to
send an answer to the July dispatch before the meeting of Congress in
December; a demand perhaps unprecedented as between two Powers of the
first rank. I know, too, that some of Mr. Olney's language gave
offence. Lord Salisbury thought him rude; an impression due mainly
to the different uses made of the English language in Washington and
in London, and to the non-existence in Washington, at that time, of
that diplomatic freemasonry, in both speech and act, and of those
diplomatic conventionalities which prevail in other important
capitals of the world.
All that--and there is more--only emphasizes the delicacy with which
Mr. Olney subsequently handled the dispute which Mr. Cleveland had
envenomed. A new period in the negotiations began. I shall venture
to say, even though Mr. Olney, out of loyalty to his President might
refuse to admit it, that with the New Year of 1896 the conduct of the
negotiations passed into his hands. That he reported to the
President what was going on I don't doubt. But a new spirit
prevailed. The tone which had been so offensive in the original
dispatch, and still more in the Message to Congress, was dropped.
Mr. Olney had a wonderful flexibility of mind. When he saw that one
set of tactics had failed, he was quick to try another, and not only
to try another but to recognize the need of a wholly new departure.
{78} He was equally quick in invention, in devising expedients, in
looking at facts with a fresh pair of eyes. A trained diplomatist he
was not, but in this emergency he showed the qualities of a trained
diplomatist; the resource, the tact, the fertility, and the power of
divining what was in his adversary's mind.
Lord Salisbury's was not an easy mind to divine. He had the gift of
silence, and to a still more remarkable degree the gift of enveloping
his thought in that language of diplomacy which, as I said, was not
at that time a language very well understood in America. But Mr.
Olney guessed pretty accurately at Lord Salisbury's purpose, and they
carried on their exchange of views without very great friction. The
truth is, both were bent on finding a solution. The point in which
Lord Salisbury had the advantage was patience. Mr. Olney was under
some pressure. Lord Salisbury was not. Americans will, I think, do
well to bear in mind that, after Prince Bismarck's death, Lord
Salisbury was regarded throughout Europe as a higher authority, with
a more commanding influence, than any Foreign Minister then in power.
He had immense experience, immense knowledge, an immense power of
work, and fine natural gifts perfected by long practice. There were
not many Ministers who transacted great affairs with Lord Salisbury
on even terms. But Mr. Olney was one of them.
I find myself, however, going further than I meant to. I meant no
more than to put on {79} record, before it is too late, the testimony
of an eye-witness, and my belief that, but for Mr. Olney, there might
have been a very different ending to the quarrel upon which President
Cleveland entered in his over-confident, clumsy way. I have departed
from the order of time in these "Memories." I must often depart from
it; I cannot begin a story and leave it half told because the end
belongs to later years.
Mr. Olney has made so great a name and place for himself at the Bar,
as well as in the State Department, that no testimony or tribute can
be of much importance to him. But it is important to me to offer it.
A debt of gratitude may be easily borne, often much too easily; but
if it can never be repaid it can be acknowledged, and I acknowledge
mine to Mr. Olney at the same time that I remind others of what they
also owe him.
I do not regret having had to give way to Mr. Olney in Judge Thomas's
office. If I had been admitted into that coveted place, I should
have stayed in Boston and at the Bar, and perhaps have had a
prosperous professional life. But I should not have had the kind of
experience which has made life interesting to me in so many various
ways, and which I am now trying to make interesting to others.
Mr. Rockwood Hoar, afterward Attorney-General of the United States,
whose name I have mentioned earlier, was counsel for the other side
in my Supreme Court case. If my client had {80} had a good defence,
which perhaps he had not, a novice at the Bar had little chance
against a man with the learning and force of Mr. Hoar. He had,
however, a spirit of scrupulous fairness. No man ever suspected
Rockwood Hoar of unworthy devices. He was too able to need them and
too honest to use them. But he tried experiments, as every lawyer
does. He put a question to a witness which I thought innocent
enough, but a friendly lawyer who sat near called to me in a stage
whisper, "Object." So I objected, not the least knowing why. The
judge looked to Mr. Hoar. "Surely," said Mr. Hoar, "my friend will
not press his objection." Not knowing what else to say, I said I
would withdraw the objection if Mr. Hoar would say he thought the
question competent. The judge smiled, and Mr. Hoar smiled at my
ingenuousness, and said, "Well, I will ask the witness another
question."
Mr. Horace Gray was at that time reporter to the Supreme Court of
Massachusetts. After he had become a judge of the Supreme Court of
the United States I used to meet him in Washington. One day he said
to me:
"You used to practise law in Boston."
"Yes."
"I think we must have met. I must have seen you in court. You tried
a case in the Supreme Court before Judge Thomas. Stop a moment. I
can tell you the name of the case. You argued it afterward before
the full bench. It was Krebs _v._ Oliver."
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And it was. Forty years had passed. Mr. Justice Gray had what may
be called a memory. He had much else: an inexhaustible knowledge of
case law; a power of dealing readily with complex matters; a fast
hold of principles; an industry without limit; the cordial respect of
his fellow judges; and a pleasant house in Washington whereof the
hostess was one of Washington's favourites. And he had a stature of
somewhere between six and seven feet, with a smiling face and massive
head to crown this huge frame. He is gone. I wish he were not.
Of the many members of this brilliant Suffolk Bar there was one of a
very unusual kind of brilliancy. The brilliancy of invariable
success was his. I believe it to be literally true that during many
years he never lost a case which depended on the verdict of a jury.
At the Bar, of course, as elsewhere, nothing succeeds like success,
and Mr. Durant's practice was very large. I have noticed that
clients, as a rule, would rather win their cases than lose them. How
did he do it? Nobody ever knew. His beaten rivals, or perhaps their
clients, sometimes hinted at things nobody ever ventured to assert,
since there was not a scintilla of evidence to justify insinuations.
There was probably no secret save what lay on the surface. Mr.
Durant was a good lawyer who prepared his cases with a thoroughness
that left no point in doubt, and no scrap of evidence unexamined. He
knew to a nicety what would {82} tell with a jury and what would not.
He was not a man on whom it was possible to spring a surprise. His
cross-examinations, without being showy, were deadly. As a
speaker--orator he was not--he had no other conspicuous merit than
clearness; the art of marshalling facts to fit his own theory of the
case. When he rose the jury were predisposed to believe.
He had a way of turning to the jury whenever during the trial he had
made a point, brought out a telling fact, or wrung an admission from
an incautious witness. It was as if from the beginning he took the
jury into partnership; it was a matter in which he and they were
alike interested, and the only interest of either was to discover the
truth. They said of him what was said by a juryman of another famous
advocate: "It's no credit to him to win his causes. He is always on
the right side." When Mr. Durant sat down the jury were convinced
that he, too, was on the right side, and their verdict was but the
formal and legal ratification of the moral view, and, as they
believed, of their own conscientious conviction.
Hypnotism? I think not. The thing was not much heard of in those
days. It is quite possible that Mr. Durant used discrimination and
never took a cause into court in which he did not feel sure of a
verdict, but many a lawyer is sure of a verdict he does not get.
There remains a residuum of mystery which has never been explained,
and is probably inexplicable. Mr. Durant's {83} presence explained
something. He had a powerful head, chiselled features, black hair,
which he wore rather long, an olive complexion, and eyes which
flashed the lightnings of wrath and scorn and irony; then suddenly
the soft rays of sweetness and persuasion for the jury. He looked
like an actor. He was an actor. He understood dramatic values, and
there was no art of the stage he did not employ upon a hostile or
unwilling witness. He could coax, intimidate, terrify; and his
questions cut like knives.
He had a stage name, like so many other actors. His real name was
Smith, which perhaps was not generally known. But one day in court
he was tormenting a reluctant witness who had been Jones and was now
Robinson. "Mr. Jones," cried Durant--"I beg your pardon, Mr.
Robinson." "Yes, Mr. Smith," retorted the witness--"I beg your
pardon, Mr. Durant." That cross-examination came quickly to an end.
But I believe Mr. Durant's prestige continued while he remained at
the Bar; then having amassed a fortune, he abandoned the law and took
to preaching. Whether he had the same success in saving souls as in
winning causes I never heard.
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