SOME JUDGES I HAVE KNOWN
Unquestionably the most important character in the legal
history of Massachusetts is Chief Justice Lemuel Shaw. He
was a great lawyer before he came to the Bench. He had written
one or two very able articles for the _North American Review,_
one of them a vigorous statement of the opinion of Massachusetts
upon slavery. He was the author of a petition signed by many
of the leading men of Massachusetts in opposition to the high
tariff of 1828. No more powerful statement of the argument
against high protection can be found. I have been surprised
that the modern free-traders have not long ago discovered
it, and brought it to light. He was one of the managers of
the impeachment of Judge Prescott, securing a conviction against
a powerful array of counsel for the defendant, which included
Daniel Webster. He was consulted in difficult and important
matters by eminent counsel in other counties than Suffolk.
But all these titles to distinction have been forgotten in
his great service as Chief Justice of Massachusetts for thirty
years. No other judicial fame in the country can rival his,
with the single exception of Marshall. He was induced to
undertake the office of Chief Justice very reluctantly, by
the strong personal urgency of Mr. Webster. Mr. Webster
used to give a humorous account of the difficulty he had in
overcoming the morbid scruples of the great simple-hearted
intellectual giant. He found Mr. Shaw in his office in a
cloud of tobacco-smoke. Mr. Webster did not himself smoke,
and was at some disadvantage during the interview for that
reason.
Mr. Shaw was rather short in stature and, in the latter part
of his life, somewhat corpulent. He had a massive head, a
low forehead, and strong and rather coarse features. He reminded
you of the statues of Gog and Magog in the Guildhall in London.
His hair came down over his forehead, and when he had been
away from home for a week or two, so that his head got no combing
but his own, it was in a sadly tangled mass. His eye was
dull, except when it kindled in discussion, or when he was
stirred to some utterance of grave displeasure.
There is an anecdote of Mr. Choate which occasionally goes
the rounds of the papers, and which is often repeated quite
inaccurately. The true version is this. I heard it within
a few hours after it happened, and have heard it at first
hand more than once since.
Mr. Choate was sitting next to Judge Hoar in the bar when
the Chief Justice was presiding, and the Suffolk docket was
being called. The Chief Justice said something which led
Mr. Choate to make a half-humorous and half-displeased remark
about Shaw's roughness of look and manner, to which Judge
Hoar replied: "After all, I feel a reverence for the old
Chief Justice."
"A reverence for him, my dear fellow?" said Choate. "So do
I. I bow down to him as the wild Indian does before his wooden
idol. I know he's ugly; but I bow to a superior intelligence."
Judge Shaw's mind moved very slowly. When a case was argued,
it took him a good while to get the statement of facts into
his mind. It was hard for him to deal readily with unimportant
matters, or with things which, to other people, were matters
of course. If the simplest motion were made, he had to unlimber
the heavy artillery of his mind, go down to the roots of the
question, consider the matter in all possible relations, and
deal with it as if he were besieging a fortress. When he
was intent upon a subject, he was exceedingly impatient of
anything that interrupted the current of his thought. So
he was a hard person for young advocates, or for any other
unless he were strong, self-possessed, and had the respect
of the Judge. My old friend and partner, Judge Washburn,
once told me that he dreaded the Law term of the Court as
it approached, and sometimes felt that he would rather lay
his head down on the rail, and let a train of cars pass over
it, than argue a case before Shaw. The old man was probably
unconscious of this failing. He had the kindest heart in
the world, was extremely fond of little children and beautiful
young women, and especially desirous to care for the rights
of persons who were feeble and defenceless.
I was myself counsel before him in a case where the question
was whether a heifer calf, worth six or seven dollars, the
offspring of the one cow which our law reserves to a poor
debtor against attachment, was also exempt. My opponent undertook
to make some merriment about the question, and there was some
laughter at the Bar. The old Chief Justice interposed with
great emotion: "Gentlemen, remember that this is a matter
of great interest to a great many poor families." There was
no laughter after that, and that heifer calf did duty in many
a trial afterward, when the young advocates at the Worcester
Bar had some poor client to defend.
The Chief Justice had not the slightest sense of humor. When
old Judge Wilde, the great real property Judge, died after
an illustrious judicial service of thirty-five years, somebody
showed Chief Justice Shaw a register published in Boston which
recorded his death, "Died in Boston, the Honorable Samuel
S. Wilde, aged eighty, many years Justice of the Peace." It
was passed up to the Bench. The old Chief Justice looked
at it, read it over again, and said "What publication is this?"
In the old days, when the lawyers and Judges spent the evenings
of Court week at the taverns on the Circuit, the Chief Justice
liked to get a company of lawyers about him and discourse
to them. He was very well informed, indeed, on a great variety
of matters, and his talk was very interesting and full of
instruction. But there was no fun in it. One evening he
was discoursing in his ponderous way about the vitality of
seed. He said: "I understand that they found some seed of
wheat in one of the pyramids of Egypt, wrapped up in a mummy-
case, where it had been probably some four thousand years
at least, carried it over to England last year and planted
it, and it came up and they had a very good crop."
"Of mummies, sir?" inquired old Josiah Adams, a waggish member
of the Bar.
"No, Mr. Adams," replied the Chief Justice, with a tone of
reproof, and with great seriousness. "No, Mr. Adams, not
mummies--wheat."
Adams retired from the circle in great discomfiture. He
inquired of one of the other lawyers, afterward, if he supposed
that the Chief Justice really believed that he thought the
seed had produced mummies, and was told by his friend that
he did not think there was the slightest doubt of it.
Chief Justice Shaw, though very rough in his manner was exceedingly
considerate of the rights of poor and friendless persons.
Sometimes persons unacquainted with the ways of the world
would desire to make their own arguments, or would in some
way interrupt the business of the court. The Chief Justice
commonly treated them with great consideration. One amusing
incident happened quite late in his life. A rather dissipated
lawyer who had a case approaching on the docket, one day told
his office-boy to "Go over to the Supreme Court and see what
in hell they are doing." The Court were hearing a very important
case in which Mr. Choate was on one side and Mr. Curtis
on the other. The Bar and the Court-Room were crowded with
listeners. As Mr. Curtis was in the midst of his argument,
the eye of the Chief Justice caught sight of a young urchin,
ten or eleven years old, with yellow trousers stuffed into
his boots, and with his cap on one side of his head, gazing
intently up at him. He said, "Stop a moment, Mr. Curtis."
Mr. Curtis stopped, and there was a profound silence as the
audience saw the audacious little fellow standing entirely
unconcerned. "What do you want, my boy?" said the Chief Justice.
"Mr. P. told me to come over here and see what in hell you
was up to," was the reply. There was a dive at the unhappy
youth by three or four of the deputies in attendance, and
a roar of laughter from the audience. The boy was ejected.
But the gravity of the old Chief Justice was not disturbed.
He had a curiously awkward motion, especially in moving about
a parlor in social gatherings, or walking in the street.
I once pointed out to a friend a ludicrous resemblance between
his countenance and expression and that of one of the tortoises
in the illustrations of one of Agassiz's works on natural
history. To which my friend replied: "It is the tortoise
on which the elephant stands that bears up the foundations
of the world," alluding to the Hindoo mythology.
Chief Justice Shaw's opinions, as we have them in the reports,
are exceedingly diffuse. That practice would not answer for
a generation which has to consult the reports of forty-five
States and of the Supreme Court and nine judicial circuits
of the United States, besides the reports of the decisions
of some of the District Judges, and in most cases the English
decisions. But it would be a great public loss if any of
Chief Justice Shaw's utterances were omitted. His impulse,
when a question was argued before him, was to write a treatise
on the subject. So his decisions in cases where the questions
raised are narrow and unimportant are often most valuable
contributions to jurisprudence. He seldom passed over any
point or suggestion without remark. He went to the bottom
of the case with great patience and incredible industry. The
counsel who lost his case felt not only that he had had the
opinion of a great and just magistrate, but that every consideration
he could urge for his client was respectfully treated and
either yielded to or answered. Some of his ablest and most
far-reaching decisions were written after he was eighty years
old.
He possessed, beyond any other American Judge, save Marshall,
what may be termed the statesmanship of jurisprudence. He
never undertook to make law upon the Bench, but he perceived
with a far-sighted vision what rule of law was likely to operate
beneficially or hurtfully to the Republic. He was watchful
to lay down no doctrine which would not stand this test. His
great judgments stand among our great securities, like the
provisions of the Bill of Rights.
The Chief Justice was a tower of strength to the Massachusetts
judiciary. But for him it is not unlikely that the State
would have adopted an elective judiciary or a tenure limited
to a term of years. But the whole people felt that his great
integrity and wisdom gave an added security to every man's
life, liberty, and property. So the proposition to limit
the judicial tenure, although espoused by the two parties
who together made up a large majority of the people of the
State, was defeated when it was submitted to a popular vote.
It is, however, a little remarkable that in the neighboring
State of Vermont, for many years the Judges of the Supreme
Court were annually elected by the Legislature, a system which,
I believe, has worked on the whole to their satisfaction.
They have had an able judiciary. It is said that old Chief
Justice Shaw was one evening discoursing at a meeting of the
Boston Law Club to an eminent Vermont Judge, who was a guest.
He said, "With your brief judicial tenure, sir--" The Vermonter
interrupted him and said, "Why, our tenure of office is longer
than yours." "What do you mean?" said the Chief Justice.
"I do not understand you." "Why," was the reply, "our Judges
are elected for a year, and you are appointed as long as you
behave yourselves."
Chief Justice Shaw is said to have been a very dull child.
The earliest indication of his gift of the masterly and unerring
judgment which discerned the truth and reason of things was,
however, noticed when he was a very small boy. His mother
one day had a company at tea. Some hot buttered toast was
on the table. When it was passed to little Lemuel he pulled
out the bottom slice, which was kept hot by the hot plate
beneath and the pile of toast above. His mother reproached
him quite sharply. "You must not do that, Lemuel. Suppose
everybody were to do that?" "Then everybody would get a bottom
slice," answered the wise urchin.
Judge Shaw had the sturdy spirit and temper of the old seafaring
people of Cape Cod, among whom he was born and bred. He was
fond of stories of the sea and of ships. He liked to hear
of bold and adventurous voyages. Judge Gray used to tell
the story of the old Chief's standing with his back to the
fire, with his coat-tails under his arm, in the Judges' room
at the Suffolk Court-House, one cold winter morning, when
the news of the fate of Sir John Franklin's expedition or
the story of some other Arctic tragedy had just reached Boston
and was in the morning papers.
"I hope, sir," said Judge Bigelow, "that there will be no
more of these voyages to discover the North Pole."
"I want 'em to find that open Polar sea, sir," said Shaw.
"But don't you think," said Judge Bigelow, "that it is too
bad to risk so many human lives, and to compel the sailors
to encounter the terrible suffering and danger of these Arctic
voyages?"
"I think they'll find it yet, sir," was all the reply Bigelow
could get.
Judge Shaw, in his latter days, was reverenced by the people
of Massachusetts as if he were a demi-god. But in his native
county of Barnstaple he was reverenced as a God. One winter,
when the Supreme Court held a special session at Barnstaple
for the trial of a capital case, Judge Merrick, who was one
of the Judges, came out of the Court-house just at nightfall,
when the whole surface of the earth was covered with ice and
slush, slipped and fell heavily, breaking three of his ribs.
He was taken up and carried to his room at the hotel, and
lay on the sofa waiting for the doctor to come. While the
Judge lay, groaning and in agony, the old janitor of the court-
house, who had helped pick him up, wiped off the wet from
his clothes and said to him, "Judge Merrick, how thankful
you must be it was not the Chief Justice!" Poor Merrick could
not help laughing, though his broken ribs were lacerating
his flesh.
Next to Chief Justice Shaw in public esteem, when I came
to the Bar in December, 1849, was Mr. Justice Wilde. He
was nearly eighty years old, and began to show some signs
of failing powers. But those signs do not appear in his
recorded opinions. He was a type of the old common-lawyer
in appearance and manner and character. He would have been
a fit associate for Lord Coke, and would never have given
way to him. I suppose he was never excelled as a real-property
lawyer in this country. He had the antiquated pronunciation
of the last century, a venerable gray head and wrinkled countenance,
with heavy gray eyebrows. He seemed to the general public
to be nothing but a walking abridgment. Still, he was a very
well-informed man, and had represented a district of what
is now the State of Maine in Congress with great distinction.
A friend of mine went rather late to church at King's Chapel
one Sunday when the congregation had got some way in the service,
and was shown into the pew immediately in front of old Judge
Wilde. The Judge was just uttering in a distinct, clear tone,
"Lord, teach me Thy statoots." It was the only petition he
needed to have granted to make him a complete Judge. Of
the Lord's common law he was a thorough master.
He was no respecter of persons. He delivered his judgments
with an unmoved air, as if he had footed up a column of figures
and were announcing the result. When I was in the Law School,
Mr. Webster was retained to argue an important real estate
case before Judge Wilde in Suffolk County. Mr. Webster was
making what would have been a powerful argument on a question
of land-title but for a statute passed since the days of his
constant practice, which had not come to his knowledge. There
was a great audience, and when Mr. Webster had got his point
fairly stated, he was interrupted by Wilde. "Pooh, pooh,
Mr. Webster." The Judge pointed out that Webster had overlooked
one link in the chain of his antagonist's title.
"But," said Mr. Webster in reply, "the descent tolls the
entry."
"That rule is abolished by the statoot, sir."
"Why didn't you tell me that?" said Webster angrily to his
junior.
Another of our great old Judges was Judge Fletcher. He had
had a great practice as an advocate in Boston, especially
as a commercial lawyer. He had a great power of clear statement.
He brought out his utterances in a queer, jerking fashion,
protruding his lips a little as he hesitated at the beginning
of his sentences. But he knew how to convey his meaning to
the apprehension of Courts and juries. He left the Bench
less than two years after I came to the Bar. I never had
but one important case before him. He was a bachelor. He
was very interesting in conversation, liked the company of
young men, who never left him without carrying away some delightful
anecdote or shrewd and pithy observation.
A lawyer from the country told me one day that he had just
been in Fletcher's office to get his opinion. While he was
in the office, old Ebenezer Francis, a man said to be worth
$8,000,000, then the richest man in New England, came to consult
him about a small claim against some neighbor. Fletcher interrupted
his consultation with my friend and listened to Mr. Francis's
story. In those days, parties could not be witnesses in their
own cases. Fletcher advised his client that although he had
an excellent case, the evidence at his command was not sufficient
to prove it, and advised against bringing an action. Francis,
who was quite avaricious, left the office with a heavy heart.
When he had gone, Fletcher turned to my friend and said: "Isn't
it pitiful, sir, to see an old critter, wandering about our
streets, destitute of proof?"
But the most interesting and racy character among our old
Judges was Theron Metcalf. He used to say of himself--a saying
that did him great injustice--that he was taken to fill a
gap in the Court as people take an old hat to stop a broken
window. He undervalued his own capacity. He was not a good
Judge to preside at jury trials. He had queer and eccentric
notions of what the case was all about, and while he would
state a principle of law with extraordinary precision and
accuracy he had not the gift of making practical application
of the law to existing facts. So a great many of his rulings
were set aside, and it did not seem, when he had held a long
term of Court, that a great deal had been accomplished. But
he was a very learned common-lawyer. His memory was a complete
digest of the decisions down to his time. He comprehended
with marvellous clearness the precise extent to which any
adjudged case went, and would state its doctrine with mathematical
precision.
He hated statutes. He was specially indignant at the abolition
of special pleading. He sent word to me, when I was Chairman
of the Judiciary Committee in the Massachusetts Senate, asking
to have a provision enacted for simplifying the process of
bringing before the full Bench for revision the proceedings
in habeas corpus, or mandamus, or certiorari, or some other
special writ, I forget now what. I called upon him at once,
and pointed out to him that exactly what he wanted was accomplished
by the Practice Act of 1852. This was the statute under which
all our legal proceedings in cases affecting personal property
were had. Metcalf said, with great disgust: "I have said,
sir, that if they did not repeal that thing I would not read
it."
He used to enliven his judgments with remarks showing a good
deal of shrewd wisdom. In one case a man was indicted for
advertising a show without a license. The defendant insisted
that the indictment was insufficient because it set out merely
what the show purported to be, and not what it really was.
On which the Judge remarked: "The indictment sets out all
that is necessary, and, indeed, all that is safe. The show
often falls short of the promise in the show-bill."
There was once a case before him for a field-driver who had
impounded cattle under the old Massachusetts law. The case
took a good many days to try, and innumerable subtle questions
were raised. The Judge began his charge to the jury: "Gentlemen
of the jury, a man who takes up a cow straying in a highway
is a fool."
Another time there was a contest as to the value of some
personal property which had been sold at auction. One side
claimed that the auction-sale was a fair test of the value.
The other claimed that property that was sold at auction was
generally sold at a sacrifice. Metcalf said to the jury:
"According to my observation, things generally bring at auction
all they are worth, except carpets."
I once tried a case before him against the Norwich Railroad
for setting fire to the house of a farmer by a spark from
a locomotive. It was a warm summer afternoon when the house
was burnt up. There was no fire in the house except a few
coals among the ashes in a cooking stove where the dinner
had been cooked some hours before. The railroad was very
near the house. There was a steep up-grade, so that the engineers
were tempted to open the bonnet of their smokestacks for a
better draught. We called as a witness a sturdy, round-faced,
fat old woman, who testified that she was sitting at her window,
knitting, in a house some little distance away, when the train
went by. She put in a mark to see, as she expressed it, "how
many times round" she could knit before supper. A few minutes
after, she heard a cry of fire, and looked out and saw a blaze
on the roof of her neighbor's house, just kindling, close
to the eaves on the side where the engine had passed. She
threw down the stocking and went to help. The stocking was
found after the fire with the mark just as she left it. So
we claimed that we could tell pretty well how long the time
had been between the passing of the train and the breaking
out of the fire. Judge Metcalf, who was always fussy and
interfering, said: "How can we tell anything by that, unless
we know how large the stocking was?" The old lady, with
a most bland smile, turned to the Judge as if she were soothing
an infant, lifted up the hem of her petticoats, and exhibited
a very sturdy ankle and calf, and said, "Just the size I wear,
your Honor." There was a roar of laughter in the court-house.
The incident was published in the morning paper the next day,
much to the Judge's indignation. He addressed the audience
when he came into Court in the morning, and said: "I see the
Worcester _Spy_ has been trying to put a fool's cap on my
head."
Judge Metcalf told me this story about Chief Justice Parsons.
The Chief Justice's manner to the Bar, as is well-known, was
exceedingly rough. He was no respecter of persons, and treated
the old and eminent lawyers quite as harshly as the youngsters.
The Bar used to call him Ursa Major. The Chief Justice used
to look over the pleadings carefully before the trials began.
It was in the time when special pleading often brought the
issue to be decided into a narrow compass. Soon after the
case was begun, the Judge would take the case out of the hands
of the counsel and examine the witnesses himself, and give
an opinion which was likely to be implicitly followed by the
jury. Jabez Upham, of Brookfield, in Worcester County, Mr.
Justice Gray's grandfather, once sent his office-boy to Court
with a green bag containing his papers, thinking there was
no use in going himself. At last the leading members of the
Bar in Boston got very angry, and four or five of them agreed
together to teach the old Chief a lesson. So they sat down
to a trial in the Supreme Court where Parsons was presiding.
Pretty soon he interfered with the lawyer who was putting
in the case for the plaintiff, in his rough way. The lawyer
rose and said: "I cannot take care of my client's rights
where my own are not respected," or something to that effect.
"I will ask Brother Sullivan to take my place." Sullivan,
who was possessed of the case, took the place. The trial
went on a little while, when something happened which offended
Sullivan. He rose and said he could not go on with the case
after his Honor's remark, and would ask Brother So-and-So,
perhaps Otis, to take his place. This happened three or four
times in succession. The Chief Justice saw the point and
adjourned the Court very early for the noon recess, and went
to the house of his colleague, Judge Sewall, who lived out
somewhere on the Neck, called him out and said: "You must
go down and hold that Court. There is a con_spire_acy sir."
Parsons never held a _nisi-prius_ term in Suffolk again.
Chief Justice Shaw used to tell with great indignation the
story of his first appearance before Parsons, when a young
man. There was a very interesting question of the law of
real property, and Samuel Dexter, then the head of the Bar,
was on the other side. Parsons was interested in the question
as soon as it was stated, and entered into a discussion with
Dexter in which they both got earnestly engaged. The Chief
Justice intimated his opinion very strongly and was just deciding
it in Dexter's favor, when the existence of the young man
on the other side occurred to him. He looked over the bar
at Shaw and said: "Well, young man, do you think you can
aid the Court any in this matter?" "I think I can, sir,"
said Shaw with spirit. Parsons listened to him, but, I believe,
remained of his first opinion.
Judge Metcalf in the time when he was upon the Bench had the
credit, I do not know how well deserved it was, of not being
much given to hospitality. He was never covetous, and he
was very fond of society and conversation. But I fancy he
had some fashions of his own in housekeeping which he thought
were not quite up to the ways of modern life. At any rate,
he was, so far as I know, never known to invite any of his
brethren upon the Bench or of the Bar to visit him at his
house, with one exception. One of the Judges told me that
after a hard day's work in court the Judges sat in consultation
till between nine and ten o'clock in the evening, and he walked
away from the Court-House with Judge Metcalf. The Judge went
along with him past the Tremont House, where my informant
was staying. As they walked up School Street, he said: "Why,
Judge Metcalf, I didn't know you went this way. I thought
you lived out on the Neck somewhere." "No, sir," said Judge
Metcalf, "I live at number so-and-so Charles Street, and I will
say to you what I heard a man say the first night I moved
into my present house. I heard a great noise in the street after
midnight, and got up and put my head out of the window. There
was a man lying down on the sidewalk struggling, and another
man, who seemed to be a policeman, was on top of him holding
him down. The fellow with his back to the ground said: 'Let
me get up, --- d--- you,' The policeman answered: 'I sha'n't
let you get up till you tell me what your name is and where
you live.' The fellow answered, 'My name is Jerry Mahoney,
--- d--- you, and I live at No. 54 Cambridge Street, --- d---
you, where I'd be happy to see you, --- d--- you, if you dare
to call." That was the only instance known to his judicial
brothers of Judge Metcalf's inviting a friend to visit him.
Judge Metcalf's legal opinions will read, I think, in the
future, as well as those of any Judge of his time. They are
brief, compact, written in excellent English, and precisely
fit the case before him without any extraneous or superfluous
matter. He would have been a very great Judge, indeed, if
his capacity for the conduct of jury trials and dealing with
_nisi-prius_ business in general had equalled his ability
to write opinions on abstract questions.
John Davis was never a Judge. But a few words about him may
well find a place here. He had long since withdrawn from
the practice of law when I came to Worcester. He remained
in the Senate of the United States until March 4, 1853. But
the traditions of his great power with juries remained. I
was once or twice a guest in his house, and once or twice
heard him make political speeches.
My father, who had encountered all the great advocates of his
time in New England--Webster, Choate, Jeremiah Mason, Dexter--
used to say that John Davis was the toughest antagonist he
ever encountered. Mr. Davis had no graces of oratory or person.
He was not without a certain awkward dignity. His head was
covered with thick and rather coarse white hair. He reminded
you a little, in look and movement, of a great white bear.
But he had a gift of driving his point home to the apprehension
of juries and of the people which was rarely equalled. He
was a man of few words and infrequent speech, without wit
or imagination. He thoroughly mastered the subjects with
which he dealt. When he had inserted his wedge, he drove
it home with a few sledge-hammer blows. It was commonly
impossible for anybody to extract it. It was only the great
weight of his authority, and the importance of the matters
with which he dealt, which kept him from seeming exceedingly
tedious. I remember thinking when I heard him make a speech
in behalf of General Scott in the City Hall, in the autumn
of 1852, that if any man but John Davis were talking the audience
could not be kept awake. He spoke very slowly, with the tone
and manner of an ordinary conversation. "The Whigs, fellow-
citizens, have presented for your suffrages this year, for
the office of President of the United States, the name of
Major-General Winfield Scott. I know General Scott. I have
had good opportunity to acquaint myself with his character
and public service. I think you may give him your confidence,
gentlemen." That was pretty much the whole speech. At any
rate, there was nothing more exciting in it. But it was John
Davis that said it, and it had great effect upon his audience.
Mr. Davis supported General Taylor for President in 1848,
thereby, on the one hand, offending Mr. Webster, with whom
his relations had for some time been exceedingly strained,
and the anti-slavery men in Massachusetts on the other. It
was understood also that he had displeased Governor Lincoln
at the time of his election to the Senate, Governor Lincoln
thinking that Mr. Davis had taken an undue advantage of his
official influence as Governor to promote his own selection.
But the two united in the support of General Taylor, which
led Charles Allen to quote a verse which has been more than
once applied in the same way since, "And in that day Pilate
and Herod were made friends together."
Mr. Davis was a careful and prudent manager of money matters,
and left what was, for his time, a considerable estate, considering
the fact that so much of his life had been passed in the public
service. His success in public life was, doubtless, in large
measure, increased by his accomplished and admirable wife,
the sister of George Bancroft. She was a lady of simple dignity,
great intelligence, great benevolence and kindness of heart.
Her conversation was always most delightful, especially in
her old age, when her mind was full of the treasures of her
long experience and companionship with famous persons. Mr.
Davis left five sons, all of them men of ability. The eldest
has been Minister to Berlin, Assistant Secretary of State,
Secretary of Legation in London, Judge of the Court of Claims,
and Reporter of the decisions of the Supreme Court of the
United States. Another son, Horace, has been a member of
Congress, eminent in the public life of California, and, I
believe, president of the University of California.
John Davis won great distinction by a very powerful speech
on the tariff question in reply to James Buchanan. Buchanan
was one of the most powerful Democratic leaders in the Senate,
but Davis was thought by the Whigs to have got much the better
of him in the debate. It was generally expected that he would
be the Whig candidate for the Vice-Presidency in 1840. But
another arrangement was made, for reasons which may be as
well told here. The Whig Convention to nominate a President
was held at Harrisburg, Pa., in December 4, 1839, nearly a
year before the election. The delegates from the different
States were asked to consult together and agree upon their
first choice. Then they were asked to say whom they thought
next to the person they selected would be the strongest candidate.
When the result was ascertained, it was discovered that William
Henry Harrison was thought by a very large majority of the
Convention to be the strongest candidate they could find.
He was accordingly selected as the Whig standard-bearer.
A committee of one person from each State was then chosen to
propose to the Convention a candidate for Vice-President.
Benjamin Watkins Leigh, of Virginia, was a strong supporter
of Henry Clay, a man of great personal worth, highly esteemed
throughout the country. The Convention adjourned, and came
in after the adjournment to hear the report of the committee.
Mr. Leigh accosted the Chairman of the committee and stood
with him in a conspicuous place as the delegates filed in.
He inquired of the Chairman what conclusion they had come
to as to a candidate for Vice-President. To which the Chairman
replied: "You will be informed in due time." When the Convention
was called to order, one of the delegates from Massachusetts
made a speech in which he set forth the high qualities that
were desired in a candidate for this important office, and,
after giving a sketch of exalted character and great capacity
for the public service, he ended by declaring that such a
man was Mr. Leigh, of Virginia, and proposing his name as
the unanimous recommendation of the committee. Mr. Leigh
was taken aback. He had been a zealous supporter of Mr.
Clay. He addressed the chair, saying he was much gratified
by what had been said by his friend from Massachusetts, and
he hoped he might live in some humble measure to deserve the
tribute which had been paid to him. But he thought that having
been a zealous supporter of Mr. Clay, and having had, in some
sense, the charge of his candidacy, he could not himself accept
a nomination in connection with another person without exposing
himself to the suspicion that he had in some way benefitted
by the defeat of his own candidate and leader. It was said
that his embarrassment was increased by the fact that he had
been seen conversing with the Chairman of the committee by
the members of the Convention. How that is I do not know.
The result was the nomination of Mr. Tyler, his election,
his succession to the Presidency after the death of Harrison,
which resulted in such disastrous consequences to the Whigs.
John Davis was a Federalist and a Whig. His sons were Whigs
and Republicans always on the conservative side of public
questions. His nephew, Colonel Isaac Davis, was in that respect
a contrast to his uncle.
It has been charged that John Davis, by taking up the time
at the close of the session of Congress by an indiscreet
speech, was the means of defeating the Wilmot Proviso, which
had come from the House inserted in a bill for the incorporation
of Oregon as a Territory. This statement has received general
circulation. It is made in Pierce's "Life of Sumner," and
in Von Holst's "Constitutional History." There is no truth
in it. I investigated the matter very carefully, and have
left on record a conclusive refutation of the whole story
in a paper published by the American Antiquarian Society.
Mr. Davis's popularity, however, enabled him to render an
important service to his party at home. The Democrats in
1839 had elected their governor, Marcus Morton, by a majority
of one vote by reason of the unpopularity of the law to prevent
liquor-selling, known as the Fifteen-Gallon Law, which had
been passed in January, 1838. They were anxious to redeem
the State, and summoned John Davis, their strongest and most
popular man, to lead their forces. He accordingly resigned
his seat in the Senate, was chosen Governor by a large majority,
and was reelected to the Senate again the next year.
Sketches like these, made by a man who was young when the
men he is talking about were old, are apt to give prominence
to trifles, to little follies and eccentricities. Let nobody
think that there was anything trifling or ludicrous about
John Davis. He was a great, strong, wise man, a champion
and tower of strength. He not only respected, but embodied
the great traditions and opinions of Massachusetts in the
great days, after the generation of the Revolution had left
the state when she earned for herself the name of the "Model
Commonwealth," and her people were building the structure
of the Commonwealth on the sure foundations which the master-
workmen of the Colonial and Revolutionary days had laid. The
majestic presence of Webster, the classic eloquence of Everett,
the lofty zeal of Sumner have made them more conspicuous figures
in the public eye, and it is likely will preserve their memeory
longer in the public heart. But the figure of John Davis
deserves to stand by the side of these great men in imperishable
memory as one of the foremost men of the State he loved so
well and served so faithfully and wisely.
The Bar of Worcester County in 1850 and the years following
was a very able one, indeed. It had many men of high reputation
in the Commonwealth and some of wide national fame. The principal
citizen of Worcester and the most distinguished member of
the Bar was Governor Levi Lincoln. Although he had long since
left practice, he used always to come into the court once
at each term of the Supreme Court, bow respectfully to the
Bench, and invite the Judges to dinner at his house, and withdraw.
He filled a very large place in the history of Massachusetts
from the time of his graduation at Harvard in 1802 until the
close of the War in 1865. There is, so far as I know, no
memoir of him in existence, except one or two brief sketches
which appear in the proceedings of some local societies of
which he was a member.
His father, Levi Lincoln the elder, was an intimate friend
and correspondent of Mr. Jefferson, and Attorney-General
in his Cabinet. He was nominated Judge of the Supreme Court
of the United States by Mr. Madison and confirmed by the Senate
and actually appointed, but was unable to take the office
because of failing sight. He did more, probably, than any
other man to organize and bring to success the political revolution
in New England which followed Jefferson's accession to the
Presidency in 1801. Many letters to him are found in Mr.
Jefferson's published works, and there are many letters from
him to Mr. Jefferson in the Jefferson papers in the archives
at Washington. Some of the correspondence on both sides is
enough to make the hair of the civil service reformer stand
on end. The son adopted his father's political opinions and
was an enthusiastic supporter of Jefferson in his youth. Jefferson
wrote a letter, which I think is now in existence, praising
very highly some of young Mr. Lincoln's early performances.
He delivered an address at Worcester, March 4, 1803, a few
months after he left college, in which he proposed that the
Fourth of March, the day of Mr. Jefferson's accession to
the Presidency, should be celebrated thereafter instead of
the Fourth of July. He says: "Republicans no longer can hail
the day as exclusively theirs. Federalism has profaned it.
She has formed to herself an idol in the union of Church and
State, and this is the time chosen to offer its sacrifice."
He sets forth "the long train of monstrous aggressions of
the Federalists" under Washington and Adams; declares that
they "propose a hereditary executive and a Senatorial nobility
for life," and says that the "hand would tremble in recording,
and the tongue falter in reciting, the long tale of monstrous
aggression. But on the Fourth of March was announced from
the Capitol the triumph of principle. Swifter than Jove on
his imperial eagle did the glad tiding of its victory pervade
the Union. As vanish the mists of the morning before the
rays of a sunbeam, so error withdrew from the inquiries of
the understanding. The reign of terror had passed," etc.,
etc. But there never was a better example of Emerson's maxim
that "a Conservative is a Democrat grown old and gone to seed."
As the young man grew in reputation and influence he became
more moderate in his opinions. He was appointed Judge of
the Supreme Court; then was elected Governor by a union of
all parties in what was called "the era of good feeling";
held the office nine years; then represented the Worcester
district in Congress, and withdrew to a dignified and honorable
retirement from which he emerged to hold the office of Mayor
of Worcester the first year of the life of the city. He was,
as I remember him, the very embodiment of dignity and aristocracy.
He had a diffuse and rather inflated style, both in public
speaking and in private conversation. His dignity had a bare
suspicion of pomposity in it. He looked with great disdain
upon the simplicity of behavior of some of his successors,
and their familiarity with all classes of the people. He
came into my office one morning full of an intense disgust
with something Governor Briggs had been doing. He said: "In
my time, sir, the office of Governor of the Commonwealth was
an office of dignity. The arrival of the Chief Magistrate
in any town was an event of some importance. He travelled
in his carriage, with suitable attendants. He appeared in
public only on great occasions. But now you see hand-bills
about the street giving notice that there is to be a Temperance
tea-party to-morrow afternoon, in some vestry or small hall.
Music by the Peak family. His Excellency George N. Briggs
will address the meeting. Admission, ten cents."
He accepted his position at the head of the social life of
Worcester as a matter of course. I remember one night, when
a party was breaking up, I said to the person next to me, in
some jesting fashion: "I am sorry to see the decay of the
old aristocracy." The Governor, who was getting his coat
at the other end of the room, overheard the remark, and called
out: "Who is lamenting our decay?"
The Governor looked with great disgust upon the formation
of the Free Soil Party and the Anti-Slavery movement. But
when the war came he remained thoroughly loyal. He encouraged
enlistment in every way, and measures for the support of the
Government had all the weight of his influence. He was a
Presidential elector, and voted for Abraham Lincoln at the
time of his second election.
When Webster was first chosen Senator he refused to be a candidate
for the office until it was ascertained whether Governor Lincoln
would accept it. The Governor then declined, for the reason
I have stated in another place. He was also offered an appointment
to the Senate by Governor Washburn when Mr. Everett resigned
in 1853. But it is said that he was quite desirous of being
elected Senator when Mr. Davis was first chosen.
The Governor was, as just said, an example of Emerson's famous
saying that a Conservative is a Democrat grown old and gone
to seed. He was looked upon as the embodiment of reverend
dignity. His household was at the head of the social life
of Worcester during his later years. Every family in the
County was proud who could trace a connection with his. There
were a few traditions in the old Federalist families like
the Thomases and the Allens of a time when the Lincolns were
accounted too democratic to be respectable. But they gained
little credence with people in general. One day, however,
I had to try a real estate case which arose in the adjoining
town and involved an ancient land-title. An old man named
Bradyill Livermore was summoned as a witness for my client.
He was, I think, in his ninety-fifth year. He lived in a
sparsely settled district and had not been into Worcester
for twenty or twenty-five years. I sat down with him in the
consultation-room. After he had told me what he knew about
the case, I had a chat with him about old times and the changes
in Worcester since his youth, and he asked me about some of
the members of the Bar then on the stage. Governor Lincoln,
who had long retired, happened to be mentioned. The old fellow
brought the point of his staff down with great emphasis upon
the floor, and then held it loosely with the fingers of his
trembling and shaking hand, and said, very earnestly, but
with a shrill and strident voice like that of one of Homer's
ghosts: "They say, sir, that that Mr. Lincoln has got to
be a very respectable man. But I can remember, sir, when
he was a terrible Jacobite."
I have given elsewhere a portraiture of Charles Allen, and
a sketch of his great career. He was a man of slender physical
frame and feeble voice. But he was a leader of leaders.
When in 1848 he left the Whig Convention in Philadelphia,
an assembly flushed with the anticipation of National triumph,
declaring, amid the jeers and hisses of its members, that
the Whig Party was dead--a prediction verified within four
years--down to the election of Lincoln, in 1860, he was in
Massachusetts a powerful influence. He was a great advocate,
a great judge, a great counsellor. He was in my judgment
a greater intellectual force than any other man in his time,
Daniel Webster not excepted. It was a force before which
Webster himself more than once recoiled. I knew him intimately
and was, I believe, admitted to no inconsiderable share of
his confidence. But there is no space here to do justice
to my reverence for his noble character.
On the whole, the most successful of the Worcester Bar, in
my time, in the practice of his profession, was Emory Washburn.
He was a man of less intellectual power undoubtedly than either
of his great contemporaries and antagonists, Allen, Merrick,
or Thomas. Yet he probably won more cases, year in and year
out, than either of them. He was a man of immense industry.
He went to his office early in the morning, took a very short
time, indeed, for his meals, and often kept at work until
one or two o'clock in the morning of the next day. He suffered
severely at one time from dyspepsia brought on by constant
work and neglect of exercise; but generally he kept his vigorous
health until his death at the age of eighty. He was indefatigable
in his service to his clients. His mind was like a steel
spring pressing on every part of the other side's case. It
was ludicrous to see his sympathy and devotion to his clients,
and his belief in the cause of any man whom he undertook to
champion. It seemed as if a client no sooner put his head
on the handle of Washburn's office-door than his heart warmed
to him like that of a mother toward her first-born. No strength
of evidence to the contrary, no current of decisions settling
the law would prevent Washburn from believing that his man
was the victim of prejudice or persecution or injustice. But
his sincerity, his courtesy of manner and kindness of heart
made him very influential with juries, and it was rare that
a jury sat in Worcester county that had not half a dozen
of Washburn's clients among their number.
I was once in a very complicated real estate case as Washburn's
associate. Charles Allen and Mr. Bacon were on the other
side. Mr. Bacon and I, who were juniors, chatted about the
case just before the trial. Mr. Bacon said: "Why, Hoar, Emory
Washburn doesn't understand that case the least in the world."
I said, "No, Mr. Bacon, he doesn't understand the case the
least in the world. But you may depend upon it he will make
that jury misunderstand it just as he does." And he did.
Charles Allen, who never spared any antagonist, used to be
merciless in dealing with Washburn. He once had a case with
him which attracted a great deal of public attention. There
had been a good many trials and the cost had mounted up to
a large sum. It was a suit by a farmer who had lost a flock
of sheep by dogs, and who tried to hold another farmer responsible
as the owner of the dog which had killed them. One of the
witnesses had been out walking at night and heard the bark
of the dog in the field where the sheep were. He was asked
to testify if he could tell what dog it was from the manner
of his bark. The evidence was objected to, and Allen undertook
to support his right to put the question. He said we were
able to distinguish men from each other by describing their
manner and behavior, when the person describing might not
know the man by name. "For instance, may it please your Honor,
suppose a stranger who came into this court-house during this
trial were called to testify to what took place, and he should
say that he did not know anybody in the room by sight, but
there was a lawyer there who was constantly interrupting the
other side, talking a great deal of the time, but after all
didn't seem to have much to say. Who would doubt that he
meant my Brother Washburn?"
This gibe is only worth recording as showing the court-house
manners of those times. It is no true picture of the honest,
faithful and beloved Emory Washburn. He was public-spirited,
wise, kind-hearted, always ready to give his service without
hope of reward or return to any good cause, a pillar of the
town, a pillar of the church. He had sometimes a certain
confusion of statement and of thought, but it was only apparent
in his oral discourse. He wrote two admirable law-books,
one on easements, and one on real property. Little & Brown
said his book on easements had the largest sale of any law-
book ever published in this country up to its time. He was
a popular and useful Professor in the Harvard Law School.
He gave a great deal of study to the history of Massachusetts,
and was the author of some valuable essays on historical questions,
and some excellent discourses on historical occasions. He
left no duty undone. Edward Hale used to say: "If you want
anything done well, go to the busiest man in Worcester to
do it--Emory Washburn, for example." He was grievously disappointed
that he was not appointed Judge of the Supreme Court when
Judge Thomas became a member of the Bench. A little while
afterward there was another vacancy, and Governor Clifford
took Merrick, another of Washburn's contemporaries and rivals
at the bar, although Merrick was a Democrat, and the Governor,
like Washburn himself, was a Whig. This was almost too much
for him to bear. It took place early in the year 1853. Mr.
Washburn sailed for Europe a few weeks after, and felt almost
like shaking off the dust of his feet against Massachusetts
and the Whig Party. But he was very agreeably compensated
for his disappointment. During his absence he was nominated
by the Whigs for the office of Governor, to which office he
was elected in the following January, there being then, under
our law, which required a clear majority of all the votes,
no choice by the people. He made an admirable and popular
Governor. But the Nebraska Bill was introduced in that year.
This created strong excitement among the people of Massachusetts,
and the Know-Nothing movement came that fall, inspired more
by the desire of the people to get rid of the old parties,
and form a new anti-slavery party, than by any real opposition
to foreigners, which was its avowed principle. This party
swept Massachusetts, electing all the State officers and every
member of the State Legislature except two from the town of
Northampton. They had rather a sorry Legislature. It was
the duty of the outgoing Governor to administer the oath to
the Representatives- and Senators-elect. Governor Washburn
performed that duty, and added: "Now, gentlemen, so far as
the oath of office is concerned, you are qualified to enter
upon your duties."
Governor Washburn was a thorough gentleman, through and through,
courteous, well-bred, and with an entirely sufficient sense
of his own dignity. But he had little respect for any false
notions of gentility, and had a habit of going straight at
any difficulty himself. To this habit he owed much of his
success in life. A very amusing story was told by Mrs. Washburn
long after her husband's death. She was one of the brightest
and sprightliest and wittiest of women. Her husband owed
to her much of his success in life, as well as much of his
comfort and domestic enjoyment. She used to give sometimes
half a dozen entertainments in the same week. She was never
disconcerted by any want of preparation or suddenness of demand
upon her hospitality. One day some quite distinguished guests
arrived in Worcester unexpectedly, whom it was proper that
she should keep to dinner. The simple arrangements which
had been made for herself and her husband would not do. She
accordingly went at once to the principal hotel of the town, in
the neighborhood, and bargained with the landlord to send
over the necessary courses for her table, which were just
hot and cooked and ready for his own. She got off very comfortably
without being detected.
Her story was that one time when Judge Washburn was Governor
the members of his Staff came to Worcester on some public
occasion and were all invited to his house to spend the night.
When he got up in the morning he found, to his consternation,
that the man who was in the habit of doing such services at
his house was sick, or for some other reason had failed to
put in an appearance, and none of the boots of the young gentlemen
were blacked. The Governor was master of the situation. He
descended to his cellar, took off his coat, blacked all the
boots of the youngsters himself, and met them at breakfast
with his usual pleasant courtesy, as if nothing had happened.
I do not undertake to give a full sketch of Benjamin F. Thomas.
He was one of the very greatest of American lawyers. But
such desultory recollections as these are apt to dwell only
on the eccentricities or peculiarities or foibles of men.
They are not the place for elaborate and noble portraiture.
Judge Thomas was the principal figure in the Worcester court-
house after Judge Allen's election to Congress in 1848. Judge
Thomas did not get large professional business very rapidly.
He was supposed, in his youth, to be a person of rather eccentric
manners, studious, fond of poetry and general literature and
of historical and antiquarian research. He was impulsive,
somewhat passionate, but still with an affectionate, sunny,
generous nature, and a large heart, to which malice, hatred,
or uncharitableness were impossible. It is said that in his
younger days he used to walk the streets, wrapped in his own
thoughts, unconscious of the passers-by, and muttering poetry
to himself. But when I came into his office as a student,
in August, 1849, all this trait had disappeared. He was a
consummate advocate, a favorite alike with Judges and jurors,
winning his causes wherever success was possible, and largely
employed. He had a clear voice, of great compass, pitched
on rather a high key, but sweet and musical like the sound
of a bugle. The young men used to fill the court-house to
hear his arguments to juries. He became a very profound lawyer,
always mastering the learning of the case, but never leaning
too much upon authorities. Charles Emerson's beautiful phrase
in his epitaph upon Professor Ashmun, "Books were his helpers,
never his masters," was most aptly applied to Thomas. If
he had any foible which affected at all his usefulness or
success in life it was an impatience of authority, whether
it were the authority of a great reputation, or of party,
or of public sentiment, or of the established and settled
opinions of mankind. He went on the Supreme Bench in 1853.
Dissenting opinions were rare in the Massachusetts Supreme
Court in those days. In this I think the early Judges were
extremely wise. Nothing shakes the authority of a court more
than the frequent habit of individual dissent. But Judge
Thomas dissented from the judgments of his court on several
very important occasions. His dissenting opinions were exceedingly
alike. I think it would have been better if they had not
been delivered. I think he would have been much more likely
to have come to the other conclusion if the somewhat imperious
intellect of Shaw had not been put into the prevailing scale.
When all Massachusetts bowed down to Webster, Judge Thomas,
though he respected and honored the great public idol, supported
Taylor as a candidate for the Presidency. At the dinner
given to the Electoral College after the election, where Mr.
Webster was present, Judge Thomas shocked the meeting by saying:
"Some persons have spoken of our candidate as their second
choice. I am proud to say that General Taylor was not only
my last, but my first choice." So, when Judge Thomas was
in Congress, while he was as thoroughly loyal, patriotic,
and brave a man as ever lived, he opposed the policies of
the Republican Party for carrying on the war and putting down
the Rebellion. He was thought to be inspired by a great dislike
of submitting to party authority or even to that of President
Lincoln. He was very fond of young men. When he was Judge
they always found that they had all the consideration that
they deserved, and had no fear of being put at a disadvantage
by any antagonist, however able or experienced. The Judge
seemed always to be stirred by the suggestion of an intellectual
difficulty. When I was seeking some remedy at his hands,
especially in equity, I used to say that I thought I had a
just case, but I was afraid his Honor might think the legal
difficulties were insuperable and I did not know whether I
could get his Honor's approbation of what I asked. He would
instantly rouse himself and seem to take the suggestion as
a challenge, and if it were possible for human ingenuity to
find a way to accomplish what I wanted he would do it. He
preserved the sweetness and joyous spirit of boyhood to the
day of his death. It was delightful to catch him when he
was at leisure, to report to him any pleasant story that was
going about, and to hear his merry laugh and pleasant voice.
He was a model of the judicial character. It was a delight
to practise before him at _nisi prius._ I have known a great
many admirable lawyers and a good many very great Judges.
I have known some who had more learning, and some, I suppose,
though very few, who had greater vigor of intellect. But
no better Judge ever sat in a Massachusetts court-house. Dwight
Foster felicitously applied to him the sentence which was first
uttered of Charles James Fox, that "his intellect was all
feeling, and his feeling all intellect."
Dwight Foster came to the Bar just a week after I did. But
I ought not to omit him in any account of the Massachusetts
lawyers or Judges of my time. He rose rapidly to a place
in the first rank of Massachusetts lawyers, which he held
until his untimely death. He was graduated the first scholar
in his class at Yale in 1848. Before he was graduated he
became engaged to a very admirable and accomplished lady,
daughter of Roger S. Baldwin, Governor of Connecticut and
United States Senator, then head of the Connecticut Bar. This
lady had some tendency to a disorder of the lungs and throat
which had proved fatal to two of her brothers. Dwight Foster
was very anxious to get her away from New Haven, where he
thought the climate and her habit of mingling in gay society
very unfavorable to her health. So he set himself to work
to get admitted to the Bar and get established in business
that he might have a place for her in Worcester. He was examined
by Mr. Justice Metcalf, after studying a little more than
a year, and found possessed of attainments uncommon even for
persons who had studied the full three years and had been
a good while at the Bar. Judge Metcalf admitted him, and
on some other Judge criticising what he had done, the Judge
said, with great indignation, "If he thinks Foster is not
qualified, let him examine him himself."
Mr. Foster's first employment had very awkward consequences.
The people in Worcester had the old Puritanic dislike to theatrical
entertainments, and had always refused to license such exhibitions.
But a company of actors desired to obtain a theatre for the
season and give performances in Worcester. There was a great
opposition, and the city government ordered a public hearing
of the petition in the old City Hall. Foster was employed
by the petitioners. The hall was crowded with citizens interested
in the matter, and the Mayor and Aldermen sat in state on
the platform. When the hearing was opened, the audience were
struck with astonishment by the coming forward of Dwight Foster's
father, the Hon. Alfred D. Foster, a highly honored citizen
of great influence and ability. He had been in the State
Senate and had held some few political offices, but had disliked
such service and had never practised law, having a considerable
property which he had inherited from his father, the former
United States Senator. He made a most eloquent and powerful
appeal to the aldermen to refuse the petition, in the name
of morality and good order. He stated the deplorable effect
of attending such exhibitions on the character of the youth
of our city of both sexes, cited the opinion and practice
of our ancestors in such matters, and made a profound impression.
He then warned his hearers against the young man who was to
follow him, whom, he said, he loved as his life, but he was
there employed as a lawyer with his fee in his hand, without
the responsibility which rested upon them of protecting the
morals and good order of the city. It was very seldom that
so powerful a speech was heard in that hall, although it was
the cradle of the Anti-slavery movement, and had been the
scene of some of the most famous efforts of famous orators.
Everybody supposed that the youth was crushed and would not
venture to perform his duty in the face of such an attack.
But he was fully equal to the occasion. He met his father
with a clear, simple, modest, but extremely able statement
of the other side; pointed out the harmlessness of such exhibitions
when well conducted, and that the strictness which confounded
innocence and purity with guilt and vice was itself the parent
and cause of vice. He did not allude to his father by name
or description, but in replying to his arguments said: "It
is said in some quarters," or "An opposition comes from some
quarters" founded on such-and-such reasons. He got the sympathy
of his audience and carried his point. And from that time
nobody hesitated to trust Dwight Foster with any cause, however
important, from any doubt of his capacity to take care of
his clients.
He had been brought up as a Whig. But when the Nebraska
Bill was passed, he became a zealous and earnest Republican.
He was candidate for Mayor, but defeated on a very close vote
by George W. Richardson. He held the office of Judge of Probate
for a short time, by appointment of Governor Banks; was elected
Attorney-General in 1860 when Governor Andrew was chosen Governor,
and soon after was appointed Judge of the Supreme Court, an
office which he filled with great distinction, then left the
Bench to resume his practice, and died of a disease of the
heart which he inherited from his ancestors. He was Governor
Andrew's Attorney-General during the War, who said of him
that "he was full of the fire and hard-working zeal of Massachusetts."
He was the organ of the patriotism and energy of Worcester
at the seat of government during the war, looking out for
the interests of her soldiers, and always urging the brave
and vigorous counsel. I lost a stanch friend by his death.
I can sum up his qualities in no better way than by the word
"manliness." He never uttered an ignoble word, thought an
ignoble thought, or did an ignoble act. His method of speech
was clear, simple, spirited, without much pathos or emotion,
but still calculated to stir and move his hearers.
I had more intimate relations with Judge Thomas L. Nelson
than with any other member of the Worcester Bar except those
with whom I formed a partnership. We were never in partnership.
But after I went to Congress in 1869, he moved into my office
until his appointment to the Bench. So when I was at home
we were in the same room. He had been accustomed for a long
time before to employ me to assist him in important trials
before the jury and in arguments before the Supreme Court.
I suppose I am responsible for his appointment to the District
Court, although the original suggestion was not mine. After
the death of Judge Shepley, there was a general expectation
that Judge John Lowell, of the District Court, would be made
Circuit Judge. One morning one of the Boston papers suggested
several names for the succession, among them that of Mr.
Knowlton, of Springfield, and Mr. Nelson. I said nothing
to him. But he observed: "I see in a paper that I am spoken
of as District Judge." I replied: "Yes, I saw the article."
Neither of us said anything further on the subject. When
I got to Washington I met Mr. Devens, then Attorney-General,
who said, "We shall have to appoint a District Judge, I suppose.
I think your friend Nelson is the best man for it. But I
suppose he would not accept it." I said: "No, I don't believe
he would accept it. But, if you think he is the best man
for it, the question whether he will accept it ought to be
determined by him, and not by his friends for him." I had
no thought that Mr. Nelson would leave his practice for the
Bench. But I thought it would be a very agreeable thing to
him to have the offer. I wrote to him a day or two afterward
that I thought it likely he would be offered the place. He
answered by asking me, if it were to be offered to him, how
much time would be given to him to consider the matter. Soon
after I was informed by Attorney-General Devens that the President
had offered him the place on the Circuit Bench, and that he
very much desired to accept it. But he thought that, although
the President had put the place at his disposal, he was very
unwilling to have any change in the Cabinet, and doubted whether
he ought to accept the offer unless he were very sure the
President was willing to spare him. One day soon after, President
Hayes sent for me to come to see him. I called at the Attorney-
General's office, told him the President had sent for me,
and that he probably wished to speak about the Circuit Judgeship,
and I wanted to know what he would like to have me say. Devens
said that he should prefer that way of spending the rest of
his life to any other. But the President had done him a great
honor in inviting him to his Cabinet, and he did not wish
to leave him unless he were sure that the President was willing.
I went to the White House. When President Hayes opened the
subject, I told him what was the Attorney-General's opinion.
The President said that if he could be sure that were true,
it would relieve his mind of a great burden. I told him he
could depend on it. The President said he did not know anybody
else whom he should be as willing to have in his Cabinet as
Devens, unless I myself would consent to accept the place.
He gave a little friendly urging in that direction. I told
him that I had lately been elected to the Senate after a considerable
controversy, and that I did not think I could in justice to
the people of the State make a vacancy in the office which
would occasion a new strife. I called on Devens on my way
back, and reported to him what the President had said. He
immediately went to the White House, and they had a full understanding,
which resulted in Devens keeping his place in the Cabinet
through the Administration.
It was then suggested that while Judge Lowell was a most
admirable District Judge, and in every way an admirable lawyer,
yet that it would be better if it were possible to get one
of the leaders of the Bar, who would supply what Judge Lowell
lacked--the capacity for charging juries on facts, and presiding
at jury trials, and to leave him in the District Court, where
his services were so valuable. The office of Circuit Judge
was accordingly offered to Mr. William G. Russell. I wrote
to Nelson, asking him to consider my first letter on the subject
as not having been written. Mr. Russell replied, declining
the place, and saying, with great emphasis that he was sorry
the President should hesitate a moment about offering the
place to Judge Lowell, whom he praised very highly. But the
President and the Attorney-General thought that it should
be offered to Mr. George O. Shattuck, a very eminent lawyer
and advocate. On inquiry, however, it turned out that Mr.
Shattuck, who was in poor health, was absent on a journey,
and it was so unlikely that he would accept the offer that
it was thought best not to diminish the value and honor to
Judge Lowell of the place by offering it further to another
person. Accordingly the place was offered to Judge Lowell
and accepted by him.
General Devens than said to me: "I have been thinking over
the matter of the District Judge, and I think if a man entirely
suitable can be found in the Suffolk Bar, that the appointment
rather belongs to that Bar, and I should like, if you have
no objection, to propose to the President to offer it to Mr.
Charles Allen." Mr. Allen was later Judge of the Supreme
Court of Massachusetts. I assented, but said: "If Mr. Allen
refuses it, I hope it will then be offered to Mr. Nelson,
in accordance with your original opinion." The Attorney-
General agreed. The offer was made to Mr. Allen, and by him
declined. When the letter of refusal came, the Attorney-
General and I went together to the White House and showed
the President the letter. In the meantime a very strong recommendation
of Mr. Oliver Wendell Holmes, Jr., now of the Supreme Court,
had been received by the President. He felt a good deal of
interest in Holmes. I think they had both been wounded in
the same battle. But, at any rate, they were comrades. The
President then said: "I rather think Holmes is the man." I
then gave him my opinion of Mr. Nelson, and the President
said to Devens: "Do you agree, Mr. Attorney-General?" Devens
said: "I do." And the President said: "Then Nelson be it."
Mr. Nelson, to my surprise, accepted the appointment.
Judge Nelson was a master of equity and bankruptcy. No doctrine
was too subtle or abstruse for him. The matter of marshalling
assets, or the tacking of mortgages, and such things which
require a good deal of the genius of the mathematician, were
clear in his apprehension. He was one of the two or three
men in the State who ever understood the complications of
the old loan-fund associations. He was especially a master
of legal remedies. He held on like a bull-dog to a case in
the justice of which he believed. When you had got a verdict
and judgment in the Supreme Court against one of Nelson's
clients, he was just ready to begin work. Then look out for
him. He had with this trait also a great modesty and diffidence.
If anybody put to him confidently a proposition against his
belief, Nelson was apt to be silent, but, as Mr. Emerson
said of Samuel Hoar, "with an unaltered belief." He would
come out with his reply days after. When he came to state
the strong point in arguing his case, he would sink his voice
so it could hardly be heard, and look away like a bashful
maiden giving her consent. Judge Bigelow told me, very early
in Nelson's career, that he wished I would ask my friend to
make his arguments a little longer, and to raise his voice
so the court could hear him better. They always found his
arguments full of instruction, and disliked to lose anything
so good a lawyer had to say. His value as a Judge was largely
in consultation and in his sound opinions. I suppose that,
like his predecessor, Judge Lowell, he was not the very best
of Judges to preside at jury trials, or to guide juries in
their deliberations. Indeed, Nelson had many of the intellectual
traits--the same merits and the same defects that Lowell
had. Lowell was a man of great wit, and a favorite with
the Boston Bar when he was appointed. So they made the best
of him. They were not inclined to receive Nelson's appointment
very graciously. It was some years before he established
a high place in their confidence and esteem. But it was established
before his death. Gray and Putnam and Webb, all in their
way lawyers of the first class, found Nelson a most valuable
and acceptable associate, and have all spoken of him in most
enthusiastic terms. He was a good naturalist. He knew the
song-birds, their habits, and dwelling-places. He knew all
the stars. He liked to discuss difficult and profound questions
of public policy, constitutional law, philosophy, and metaphysics.
Sometimes, when I came home from Washington after a period
of hard work, if I happened to find Nelson in the cars when
I went to Boston, it was almost painful to spend an hour with
him, although his conversation was very profound and interesting.
But it was like attempting to take up and solve a difficult
problem in geometry. I was tired, and wanted to be humming
a negro melody to myself. He was a man of absolute integrity,
not caring whether he pleased or displeased anybody. He had
a good deal of literary knowledge, was specially fond of Emerson,
and knew him very thoroughly, both prose and verse. He had
a good deal of wit, one of the brightest examples of which
I will not undertake to quote here. He was a civil engineer
in his youth, and was always valuable in complicated questions
of boundary, or cases like our sewer and water cases, which
require the application of practical mathematics. He was
a friendly and placable person so far as he was concerned
himself, but resented, with great indignation, any unkindness
toward any of his friends or household. His friend and associate,
Judge Webb, after his death spoke with great beauty and pathos
of Nelson's love of nature and of his old county home:
"When, in later years, he revisited the scenes of his childhood,
he made no effort to conceal his affection for them; as he
wandered among the mountains and along the valleys, so dearly
remembered, his eye would grow bright, his face beam with
pleasure, and his voice sound with the tone of deep sensibility.
He grew eloquent as he described the beauty spread out before
him, and lovingly dwelt on the majesty and grandeur of the
mountain at the foot of which his infancy was cradled. It
was high companionship to be with him at such times. His
ear was open to catch the note of every bird, which came to
him like voices of well-beloved friends; he knew the brooks
from their sources to their mouths, and the rivers murmured
to him the songs they sang in the Auld Lang Syne. But deep
as was the joy of these visits, they did not allure him from
the more rugged paths of labor and duty."
The wisdom of Nelson's selection, if it need vindication,
is abundantly established by the memorial of him reported
by a committee, of which Lewis S. Dabney was chairman, and
adopted by the Suffolk Bar. The Bar, speaking of the doubt
expressed in the beginning by those who feared an inland lawyer
on the Admiralty Bench, goes on to say:
"Those who knew him well, however, knew that he had been a
successful master and referee in many complicated cases of
great importance; that his mathematical and scientific knowledge
acquired in his early profession as an engineer was large
and accurate, and would be useful in his new position; that
he who had successfully drawn important public acts would
be a successful interpreter of such acts; that always a student
approaching every subject, not as an advocate but as a judicial
observer, he would give that attention to whatever was new
among the problems of his judicial office that would make
him their best master and interpreter, and that what in others
might be considered weakness or indolence was but evidence
of a painful shrinking from displaying in public a naturally
firm, strong, earnest and persistent character, a character
which would break out through the limitations of nature whenever
the occasion required it.
"Those who, as his associates upon the Bench, or as practitioners
before him at the Bar, have had occasion to watch his long
and honorable career, now feel that the judgment of his friends
was the best and that his appointment has been justified;
and those who have known him as an Associate Justice of the
Circuit Court of Appeals have felt this even more strongly."
Another striking figure of my time was Horace Gray. He was
in the class before me at Harvard, though considerably younger.
I knew him by sight only in those days. He was very tall,
with an exceedingly youthful countenance, and a head that
looked then rather small of so large-limbed a youth--rather
awkward in his gait and bearing. But after he reached manhood
he grew into one of the finest-looking men of his time. I
believe he was the tallest man in Boston. He expanded in
every way to a figure which corresponded to his stately height.
He was the grandson of the famous William Gray, the great
merchant and ship-owner of New England, who was an important
figure in the days just preceding and just following the War
of 1812. Many anecdotes are still current of his wise and
racy sayings. His sons inherited large fortunes and were
all of them men of mark and influence in Boston. Francis
C. Grey, the Judge's uncle, was a man of letters, a historical
investigator. He discovered the priceless Body of Liberties
of 1641, which had remained unprinted from that time, although
the source from which our Bill of Rights and constitutional
provisions had been so largely drawn.
Judge Gray's father was largely employed in manufacturing
and owned some large iron works. The son had been brought
up, I suppose, to expect that his life would be one of comfort
and ease, free from all anxieties about money, and the extent
of the labor of life would be, perhaps, to visit the counting-
room a few hours in the day to look over the books and see
generally that his affairs were properly conducted by his
agents and subordinates. He had visited Europe more than
once, and was abroad shortly after his graduation when the
news reached him that the companies in which his father's
fortune was invested had failed. He at once hurried home
and set himself resolutely to work to take care of himself.
He was an accomplished naturalist for his age and time, and
had a considerable library of works on natural history. He
exchanged them for law-books and entered the Law School. I
was splitting wood to make my own fire one autumn morning
when my door, which was ajar, was pushed open, and I saw a
face somewhere up in the neighborhood of the transom. It
was Gray, who had come to inquire what it was all about. He
had little knowledge of the rules or fashions of the Law School.
I told him about the scheme of instruction and the hours of
lectures, and so forth. We became fast friends, a friendship
maintained to his death. He at once manifested a very vigorous
intellect and a memory, not only for legal principles, but for
the names of cases, which I suppose had been cultivated by
his studies in natural history and learning the scientific
names of birds and plants. At any rate, he became one of
the best pupils in the Law School. He afterward studied
law with Edward D. Sohier, and immediately after his admission
became known as one of the most promising young men at the
Bar. Luther S. Cushing was then Reporter of the decisions
of the Supreme Court. He was in poor health and employed
Gray to represent him as Reporter on the Circuit. Gray always
had a marvellous gift of remembering just where a decision
of principle of law could be found, and his thumb and forefinger
would travel instantly to the right book on the obscurest
shelf in a Law Library. So nothing seemed to escape his thorough
and indefatigable research. When he was on the Circuit, learned
counsel would often be arguing some question of law for which
they had most industriously prepared, when the young Reporter
would hand them a law-book with a case in it which had escaped
their research. So the best lawyers all over the State got
acquainted at an early day with his learning and industry, and
when Cushing soon after was obliged to resign the office of
Reporter, Gray was appointed by the general consent of the
best men of the profession, although he had as a competition
Judge Perkins, a very well known lawyer and Judge, who had
edited some important law-books and was a man of mature age.
This was in 1854, only three years after his admission to
the Bar. The office of Reporter was then one of the great
offices of the State, almost equal in dignity to that of the
Judge of the Supreme Court itself. Four of our Massachusetts
Reporters have been raised to that Bench. He was quite largely
retained and employed during that period, especially in important
questions of commercial law. He resigned his office of Reporter
about the time of the breaking out of the war. Governor Andrew
depended upon his advice and guidance in some very important
and novel questions of military law, and in 1864 he was appointed
Associate Justice of the Court. In 1873 he became its Chief
Justice, and in 1882 was made Associate Justice of the Supreme
Court of the United States. The extent of his learning and
the rapidity and thoroughness of his research were marvellous.
But it is not upon this alone, or chiefly, that his fame as
one of the great Judges of the world will rest. He was a
man of a native, original intellectual power, unsurpassed
by any man who has been on the Bench in his time, either in
this country or in England. His decisions have been as sound
and as acceptable to the profession upon questions where no
authority could be found upon which to rest, and upon questions
outside of the beaten paths of jurisprudence as upon those
where he found aid in his great legal learning. He was a
remarkably acceptable _nisi-prius_ Judge, when holding court
in the rural counties, and, though bred in a city, where human
nature is not generally learned so well, he was especially
fortunate and successful in dealing with questions of fact
which grow out of the transactions of ordinary and humble
life in the country. He manifested on one or two occasions
the gift of historical research and discussion for which his
uncle Francis was so distinguished.
It was my sorrowful duty to preside at a meeting of the Bar
of the Supreme Court of the United States to express their
sense of their great loss and that of the whole country,
after Gray's death.
I add some extracts from the remarks which I made on that
occasion:
The Bar of the Supreme Court of the United States come together
to pay a tribute of honor to a great lawyer and Judge. I
shall have, I am sure, another opportunity to put on record
my own sense of the irreparable loss of a dear friend and
comrade of more than fifty years. To-day we are to speak,
as members of the Bar, of an honored Judge whom the inexorable
shaft has stricken in his high place.
He was in his seat in the Supreme Court of the United States
for the last time Monday, February 3, 1902. On the evening
of that day he had a slight paralytic shock, which seriously
affected his physical strength. He retained his mental strength
and activity unimpaired until just before his death. On the
9th day of July, 1902, he sent his resignation to the President,
to take effect on the appointment and qualifying of his successor.
So, he died in office, September 15, 1902.
On his mother's side Judge Gray was the grandson of Jabez
Upham, one of the great lawyers of the day, who died in 1811,
at the age of forty-six, after a brief service in the National
House of Representatives. He was settled in Brookfield, Worcester
County. But the traditions of his great ability were fresh
when I went there to live, nearly forty years after his death.
The memory of the beauty and sweetness and delightful accomplishment
of Mr. Upham's daughter, Judge Gray's mother, who died in
the Judge's early youth, was still fragrant among the old
men and women who had been her companions. She is mentioned
repeatedly in the letters of that accomplished Scotch lady
--friend of Walter Scott and of so many of the English and
Scotch men of letters in her time--Mrs. Grant of Laggan.
Mrs. Grant says in a letter published in her Memoir: "My
failing memory represents my short intercourse with Mrs.
Gray as if some bright vision from a better world had come
and, vanishing, left a trail behind." In another letter she
speaks of the enchantment of Mrs. Gray's character: "Anything
so pure, so bright, so heavenly I have rarely met with."
The title, which the kindness of our countrymen has given
to Massachusetts, that of Model Commonwealth, I think has
been earned largely by the character of her Judiciary, and
never could have been acquired without it. Among the great
figures that have adorned that Bench in the past, the figure
of Justice Gray is among the most conspicuous and stately.
Judge Gray has had from the beginning a reputation for wonderful
research. Nothing ever seemed to escape his industry and
profound learning. This was shown on a few occasions when
he undertook some purely historical investigation, as in his
notes on the case of the Writs of Assistance, argued by James
Otis and reported in Quincy's Reports, and his recent admirable
address at Richmond, on Chief Justice Marshall. But while
all his opinions are full of precedent and contain all the
learning of the case, he was, I think, equally remarkable
for the wisdom, good sense, and strength of his judgments.
I do not think of any Judge of his time anywhere, either here
or in England, to whom the profession would ascribe a higher
place if he be judged only by the correctness of his opinions
in cases where there were no precedents on which to lean and
for the excellent original reasons which he had to give. I
think Judge Gray's fame, on the whole, would have been greater
as a man of original power if he had resisted, sometimes,
the temptation to marshal an array of cases, and had suffered
his judgments to stand on his statement of legal principles
without the authorities. He manifested another remarkable
quality when he was on the Bench of Massachusetts. He was
an admirable _nisi-prius_ Judge. I think we rarely have had
a better. He possessed that faculty which made the jury,
in the old days, so admirable a mechanism for performing their
part in the administration of justice. He had the rare gift,
especially rare in men whose training has been chiefly upon
the Bench, of discerning the truth of the fact, in spite of
the apparent weight of the evidence. That Court, in his time,
had exclusive jurisdiction of divorces and other matters affecting
the marital relations. The Judge had to hear and deal with
transactions of humble life and of country life. It was surprising
how this man, bred in a city, in high social position, having
no opportunity to know the modes of thought and of life of
poor men and of rustics, would settle these interesting and
delicate questions, affecting so deeply the life of plain
men and country farmers, and with what unerring sagacity he
came to the wise and righteous result.
Judge Gray's opinions for the eighteen years during which
he sat on the Bench of Massachusetts constitute an important
body of jurisprudence, from which the student can learn the
whole range of the law as it rests on principle and on authority.
And so it came to pass when the place of Mr. Justice Clifford
became vacant that by the almost universal consent of the
New England Circuit, with the general approval of the profession
throughout the whole country, Mr. Justice Gray became his
successor. Of his service here there are men better qualified
to speak than I am. He took his place easily among the great
Judges of the world. He has borne himself in his great office
so, I believe, as to command the approbation of his countrymen
of all sections and of all parties. He has been every inch
a Judge. He has maintained the dignity of his office everywhere.
He has endeared himself to a large circle of friends here
at the National Capital by his elegant and gracious hospitality.
His life certainly has been fortunate. The desire of his
youth has been fulfilled. From the time, more than fifty
years ago, when he devoted himself to his profession, there
has been, I suppose, no moment when he did not regard the
office of a Justice of the Supreme Court as not only the most
attractive but also the loftiest of human occupations. He
has devoted himself to that with a single purpose. He has
sought no fame or popularity by any other path. Certainly
his life has been fortunate. It has lasted to a good old age.
But the summons came for him when his eye was not dimmed nor
his natural force abated. He drank of the cup of the waters
of life while it was sweetest and clearest, and was not left
to drink it to the dregs. He was fortunate also, almost beyond
the lot of humanity, in that by a rare felicity, the greatest
joy of youth came to him in an advanced age. Everything that
can make life honorable, everything that can make life happy--
honor, success, the consciousness of usefulness, the regard
of his countrymen, and the supremest delight of family life--
all were his. His friends take leave of him as another of
the great and stately figures in the long and venerable procession
of American Judges.
Next to Judge Wilde in seniority upon the Bench among the
associate Judges was Mr. Justice Charles A. Dewey of Northampton.
He had had a good deal of experience as a prosecuting attorney
in a considerable general practice in the western part of
the State. He was careful in his opinions never to go beyond
what was necessary for the case at bar. It is said that there
is no instance that any opinion of his was ever overruled
in a very long judicial service.
Judge Dewey was a man of absolute integrity and faithful
in the discharge of his judicial duty. He had no sentiment
and, so far as I ever knew, took little interest in matters
outside of his important official duties. He was very careful
in the management of property. When the Democrats were in
power in Massachusetts in 1843 they reduced the salaries of
the Judges of the Supreme Court in violation of the Constitutional
provision. Chief Justice Shaw refused to touch a dollar of
his salary until the Legislature the next year restored the
old salary and provided for the payment of the arrears. Judge
Dewey held out for one quarter. But the next quarter he went
quietly to the State House, drew his quarter's salary, went
down on to State Street and invested it, and did the same
every quarter thereafter.
In the days of my early practice the Supreme Court used to
sit in Worcester for about five or six weeks, beginning in
April. It had exclusive jurisdiction of real actions, and
limited equity jurisdiction. All suits where the matter in
issue was more than three hundred dollars might be brought
originally in that court or removed there by the defendant
from the Common Pleas if the plaintiff began it below. So
the court had a great deal of business. It also had jurisdiction
of divorce cases, appeals from the Probate Court and some
special writs such as habeas corpus, certiorari and mandamus.
But after all, the old Court of Common Pleas was the place
where the greater part of the law business of the county was
transacted. There were at first four civil terms in the year,
and, after Fitchburg became a half shire, there were two more
terms held there. The Common Pleas had jurisdiction of all
crimes except capital.
There were some very interesting characters among the old
Judges of the Common Pleas. Among the most remarkable was
Judge Edward Mellen, who was first side Judge and afterward
Chief Justice. He was a man of great law-learning, indefatigable
industry and remarkable memory for cases, diffuse and long-
winded in his charges, and apt to take sides. He took everything
very seriously. It is said that he would listen to the most
pathetic tale of human suffering unmoved, but would burst
into tears at the mention of a stake and stones or two chestnut
staddles.
Mellen with the other Judges of the old Common Pleas Court
was legislated off the Bench by the abolition of that court
in 1858. He moved from Middlesex to Worcester and resumed
practice, but was never largely employed. He was a repository
of the old stories of the Middlesex Bar, many of which died
with him.
A Lowell lawyer told me this story of Judge Mellen. My informant
had in his office a law student who spent most of his time
in reading novels and poetry and writing occasionally for
the newspapers. He was anxious to get admitted to the Bar
and had crammed for the examination. In those days, unless
the applicant had studied three years, when he was admitted
as of course, the Judge examined him himself. The Judge was
holding court at Concord, and an arrangement was made that
the youngster should go to the Judge's room in the evening
and submit himself to the examination. He kept the appointment,
but in about ten minutes came out. My informant, who had
recommended him, asked him what was the matter. He said he
didn't know. The Judge had asked him one question only. He
was sure he answered it right, but the Judge immediately dismissed
him with great displeasure. The next morning the lawyer
went up to Judge Mellen in court and said, "Judge, what was
the matter with the young man last night? Did you not find
him fitted?"
"Fitted?" said the Judge. "No sir. I asked him what was
the rule in Shelley's Case, and he told me the rule in Shelley's
Case was that when the father was an atheist the Lord Chancellor
would appoint a guardian for his children."
"Ah," was the reply. "I see. The trouble is that neither
of you ever heard of the other's Shelley."
Judge Byington of Stockbridge in Berkshire used to come to
Worcester a great deal to hold the old Common Pleas Court.
He was an excellent lawyer and an excellent Judge--dry, fond
of the common law, and of black letter authorities. He had
a curious habit of giving his charge in one long sentence
without periods, but with a great many parentheses. But he
had great influence with the juries and was very sound and
correct in his law. I once tried a case before him for damages
for the seizure of a stock of liquors under the provisions
of the Statute of 1852, known as the Maine Liquor Law, which
had been held unconstitutional by the Supreme Court. He began:
"The Statute of 1852 chapter so-and-so gentlemen of the jury
commonly known as the Maine Liquor Law which has created great
feeling throughout this Commonwealth some very good men were
in favor of it and some very good men were against it read
literally part of it would be ridiculous and you may take
your seats if you please gentlemen of the jury I shall be
occupied some time in my charge and I do not care to keep
you standing and some of it would be absurd and some of it
reads very well." And so on.
A neighbor of Judge Byington from Berkshire County was Judge
Henry W. Bishop of Stockbridge. He was an old Democratic
politician and at one time the candidate of his party for
Governor. He was not a very learned lawyer, but was quick-
witted and picked up a good deal from the arguments of counsel.
Aided by a natural shrewdness and sense, he got along pretty
well. He had a gift of rather bombastic speech. His exuberant
eloquence was of a style more resembling that prevalent in
some other parts of the country than the more sober and severe
fashion of New England. Just before he came to the Bench
he was counsel in a real estate case in Springfield where
Mr. Chapman, afterward Chief Justice of the Supreme Court,
was on the other side. The evidence of recent occupation
and the monuments tended in favor of Chapman's client. But
it turned out that the one side had got a title under the
original grant of the town of Blandford, and the other under
the original grant of an adjoining town, and that the town
line had been maintained from the beginning where Bishop claimed
the true line to be. When he came to that part of the case,
he rose mightily in his stirrups. Turning upon Chapman, who
was a quiet, mild-mannered old gentleman, he said: "The gentleman's
eyes may twinkle like Castor and Pollux, twin stars; but he
can't wink out of sight that town line of Blandford. He may
place one foot on Orion and the other on Arcturus, and seize
the Pleiades by the hair and wring all the water from their
dripping urns; but he can't wash out that town line of Blandford."
The local newspaper got hold of the speech and reported it,
and it used to be spoken occasionally by the school boys for
their declamation. Bishop is said to have been much disturbed
by the ridicule it created, and to have refused ever to go to
Springfield again on any professional employment.
Judge Aldrich was appointed to the Bench of the Superior
Court of Massachusetts by Governor William B. Washburn after
I left the practice of law for public life. I appeared before
him in a very few cases and must take his judicial quality
largely from the report of others. He was a very powerful
and formidable advocate, especially in cases where moral principles
or the family relations were concerned, or where any element
of pathos enabled him to appeal to the jury. The most tedious
hours of my life, I think, have been those when I was for
the defendant and he for the plaintiff, and I had to sit and
listen to his closing argument in reply to mine. He had a
gift of simple eloquence; the influence with juries which
comes from earnestness and the profound conviction of the
righteousness of the cause he had advocated, and the weight
of an unsullied personal character and unquestioned integrity.
Mr. Aldrich's appointment to the Bench came rather late in
his life, so he was not promoted to the Supreme Court, which
would undoubtedly have happened if he had been younger. He
was an excellent magistrate and the author of one or two valuable
law books. Although my chief memories of him are of the many
occasions on which I have crossed swords with him, and of
battles when our feelings and sympathy were profoundly stirred,
still they are of the most affectionate character. He had
a quick temper and was easily moved to anger in the trial
of a case. But as an eminent western Judge is reported to
have said in speaking of some offence that had been committed
at the Bar, "This Court herself are naterally quick-tempered."
So the sparks of our quarrels went out as quickly as they
were kindled. I think of P. Emory Aldrich as a stanch and
constant friend, from whom, so long as his life lasted, I received
nothing but friendliest sympathy and constant and powerful
support.
Judge Aldrich, as I just said, was a man of quick temper.
He was ready to accept any challenge to a battle, especially
one which seemed to have anything of a personal disrespect
in it. I was present on one occasion when the ludicrous
misspelling of a word, it is very likely, saved him from coming
to blows with a very worthy and well-known citizen of Worcester
County. Colonel Artemus Lee, of Templeton, one of the most
estimable citizens of northern Worcester County, a man imperious
and quick-tempered, who had been apt to have his own way in
the region where he dwelt, and not very willing to give up
to anybody, employed me once to bring suit for him against
the Town of Templeton to recover taxes which he claimed had
been illegally assessed and collected. He was a man whose
spelling had been neglected in early youth. Aldrich was for
the Town. All the facts showing the illegality of the assessment,
of course, were upon the Town records. So we thought if the
parties met with their counsel we could agree upon a statement
of facts and submit the question of law to the court. We
met in Judge Aldrich's office, Colonel Lee and myself and
Judge Aldrich and some of the Town officers, to make up the
statement. But Mr. Aldrich had not had time to look very
deeply into the law of the case, and made some difficulties in
agreeing upon the facts, which we thought rather unreasonable.
We sat up to a late hour in a hot summer evening trying to
get at a statement. At last Lee's patience gave out. He
had had one or two hot passages at arms with Mr. Aldrich
in the course of the discussion already. He rose to his feet
and said in a very loud and angry tone--his voice was always
something like that of a bull of Basham--"This is a farce."
Aldrich rose from his seat and to the occasion and said very
angrily, "What's that you say, Sir?" Lee clenched both fists
by his side, thrust his own angry countenance close up to
that of his antagonist, and said, "A farce, Sir--F-A-R-S-
E, Farce." Aldrich caught my eye as I was sitting behind
my client and noticed my look of infinite amusement. His
anger yielded to the comedy of the occasion. He burst into
a roar of laughter and peace was saved. If Lee had spelled
the word farce with a "c," there would have been a battle
royal.