Chapter XXXVIII: Some Judges I Have Known (1)

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?"