Autobiography of Seventy Years Part 72

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 coa.r.s.e 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 Ma.s.sachusetts 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 pa.s.sed 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, a.s.sistant 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 Ma.s.sachusetts 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 Ma.s.sachusetts, 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 embarra.s.sment 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 "Const.i.tutional 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 pa.s.sed 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 n.o.body 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 Ma.s.sachusetts 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 cla.s.sic 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 princ.i.p.al 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 Ma.s.sachusetts 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 n.o.bility 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 pa.s.sed," 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 cla.s.ses 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-t.i.tle. 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 spa.r.s.ely 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 a.s.sembly flushed with the antic.i.p.ation 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 Ma.s.sachusetts 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 s.p.a.ce here to do justice to my reverence for his n.o.ble 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 a.s.sociate. 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, h.o.a.r, Emory Washburn doesn't understand that case the least in the world."

I said, "No, Mr. Bacon, he doesn't understand the case the least in the world. But you may depend upon it he will make that jury misunderstand it just as he does." And he did.

Charles Allen, who never spared any antagonist, used to be merciless in dealing with Washburn. He once had a case with him which attracted a great deal of public attention. There had been a good many trials and the cost had mounted up to a large sum. It was a suit by a farmer who had lost a flock of sheep by dogs, and who tried to hold another farmer responsible as the owner of the dog which had killed them. One of the witnesses had been out walking at night and heard the bark of the dog in the field where the sheep were. He was asked to testify if he could tell what dog it was from the manner of his bark. The evidence was objected to, and Allen undertook to support his right to put the question. He said we were able to distinguish men from each other by describing their manner and behavior, when the person describing might not know the man by name. "For instance, may it please your Honor, suppose a stranger who came into this court-house during this trial were called to testify to what took place, and he should say that he did not know anybody in the room by sight, but there was a lawyer there who was constantly interrupting the other side, talking a great deal of the time, but after all didn't seem to have much to say. Who would doubt that he meant my Brother Washburn?"

This gibe is only worth recording as showing the court-house manners of those times. It is no true picture of the honest, faithful and beloved Emory Washburn. He was public-spirited, wise, kind-hearted, always ready to give his service without hope of reward or return to any good cause, a pillar of the town, a pillar of the church. He had sometimes a certain confusion of statement and of thought, but it was only apparent in his oral discourse. He wrote two admirable law-books, one on eas.e.m.e.nts, and one on real property. Little & Brown said his book on eas.e.m.e.nts 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 Ma.s.sachusetts, 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 Ma.s.sachusetts 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 Ma.s.sachusetts, 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 Ma.s.sachusetts, 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 princ.i.p.al 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 n.o.ble portraiture.

Judge Thomas was the princ.i.p.al 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 pa.s.sionate, 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 pa.s.sers-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 compa.s.s, 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 Ma.s.sachusetts 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 Ma.s.sachusetts 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 Ma.s.sachusetts 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 Ma.s.sachusetts lawyers or Judges of my time. He rose rapidly to a place in the first rank of Ma.s.sachusetts lawyers, which he held until his untimely death. He was graduated the first scholar in his cla.s.s 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 pet.i.tion in the old City Hall. Foster was employed by the pet.i.tioners. 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 pet.i.tion, 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 s.e.xes, 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.