Autobiography of Seventy Years Part 71

But all these t.i.tles to distinction have been forgotten in his great service as Chief Justice of Ma.s.sachusetts 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 ma.s.sive head, a low forehead, and strong and rather coa.r.s.e 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 ma.s.s. 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 h.o.a.r 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 h.o.a.r 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 pa.s.s 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 ill.u.s.trious 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 pa.s.sed 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 h.e.l.l 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 h.e.l.l 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 ill.u.s.trations of one of Aga.s.siz'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 pa.s.sed 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 Ma.s.sachusetts 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 b.u.t.tered toast was on the table. When it was pa.s.sed 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 st.u.r.dy 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 Ma.s.sachusetts as if he were a demi-G.o.d. But in his native county of Barnstaple he was reverenced as a G.o.d. 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 a.s.sociate for Lord c.o.ke, 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 p.r.o.nunciation 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 pet.i.tion 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-t.i.tle but for a statute pa.s.sed 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 t.i.tle.

"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, dest.i.tute 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 Ma.s.sachusetts 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 Ma.s.sachusetts 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 st.u.r.dy, 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 pa.s.sed. 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 pa.s.sing 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 st.u.r.dy 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 compa.s.s. 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.