Chapter XXXVIII: Some Judges I Have Known (2)

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.