George Frisbie Hoar.

Autobiography of seventy years online

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burn '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 ob-
jected 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 I"

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 some-
times a certain confusion of statement and of thought, but



410 AUTOBIOGRAPHY OF SEVENTY YEARS

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 Ms book on easements bad
the largest sale of any law-book ever published in this coun-
try 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 Grovemor
Clifford took Merrick, another of Washburn's contempor-
aries and rivals at the bar, although Merrick was a Demo-
crat, 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 fol-
lowing 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 Massachu-
setts, and the Know-Nothing movement came that fall, in-
spired 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 of-
ficers 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-



SOME JUDGES I HAVE KNOWN 411

elect. Governor Washburn performed that duty, and
added: "Now, gentlemen, so far as the oath of office is con-
cerned, you are qualified to enter upon your duties."

Governor Washburn was a thorough gentleman, through
and through, courteous, well-bred, and with an entirely suf-
ficient 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 hospital-
ity. 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 ac-
cordingly 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 him-
self, and met them at breakfast with his usual pleasant cour-
tesy, 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



412 AUTOBIOGRAPHY OF SEVENTY YEARS

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 busi-
ness 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 re-
search. He was impulsive, somewhat passionate, but still
with an affectionate, sunny, generous nature, and a large
heart, to which malice, hatred, or uncharitableness were im-
possible. 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 advo-
cate, 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 argu-
ments to juries. He became a very profound lawyer, al-
ways mastering the learning of the case, but never leaning
too much upon authorities. Charles Emerson's beautiful
phrase in his epitaph on 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 use-
fulness 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 set-
tled opinions of mankind. He went on the Supreme Bench
in 1853. Dissenting opinions were rare in the Massachu-
setts Supreme Court in those days. In this I think the
early Judges were extremely wise. Nothing shakes the au-
thority 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 dis-



SOME JUDGES I HAVE KNOWN 413

senting opinions were exceedingly able. 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 Massa-
chusetts 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 Eepublican 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 antag-
onist, 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 sug-
gestion 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



414 AUTOBIOGRAPHY OF SEVENTY YEARS

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 Massa-
chusetts 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 ac-
complished 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 con-
sequences. 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 great opposition, and the city
government ordered a public hearing of the petition in the
old City Hall. Foster was employed by the petitioners.



SOME JUDGES I HAVE KNOWN 415

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 dis-
liked 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 the 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 con-
founded 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 by 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.



416 AUTOBIOGRAPHY OF SEVENTY YEARS

He had been brought up as a Whig. But when the
Nebraska Bill was passed, he became a zealous and earnest
Eepublican. He was candidate for Mayor, but defeated
on a very close vote by George W. Eichardson. He held
the office of Judge of Probate for a short time, by appoint-
ment 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, with-
out 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 argu-
ments before the Supreme Court. I suppose I am re-
sponsible 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



SOME JUDGES I HAVE KNOWN 417

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-Gen-
eral, 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 of&ce, 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 Presi-
dent 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 upon it. The President said he did not know
anybody else whom he should be as willing to have in his
27



418 AUTOBIOGRAPHY OF SEVENTY YEARS

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
oflB.ce 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.
Eussell. I wrote to Nelson, asking him to consider my first
letter on the subject as not having been written. Mr. Eussell
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 0. 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 then 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



SOME JUDGES I HAVE KNOWN 419

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 D evens:
"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 mathe-
matician, were clear to 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 difl&dence. 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 imaltered 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



Online LibraryGeorge Frisbie HoarAutobiography of seventy years → online text (page 35 of 42)