At the first trial at Concord, Mr. Webster had frequent altercations with District Attorney Huntington. In his closing argument, which is said to have been one of great power, and which he began by an eloquent reference to the battle of Concord Bridge, which, he said, was fought by Concord farmers that their children might enjoy the blessings of an impartial administration of justice under the law, he said that it was unlikely that Wyman could have abstracted large sums from the bank and no trace of the money be found in his possession. He was a man of small property, living simply and plainly, without extravagant habits or anything which would have been likely to tempt him to such crime. When Huntington came to reply he said, very roughly: "They want to know what's become of the money.

I can tell you what's become of the money. Five thousand dollars to one counsel, three thousand dollars to another, two thousand to another," waving his hand in succession toward Webster and Choate and Dexter. Such fees, though common enough now, seemed enormous in those days. Choate smiled in his peculiar fashion, and said nothing; Franklin Dexter looked up from a newspaper he was reading, and exclaimed: "This is beneath our notice"; but Mr. Webster rose to his feet and said with great indignation: "Am I to sit here to hear myself charged with sharing the spoils with a thief?" The presiding judge said: "The counsel for the Government will confine himself to the evidence." That was all. But Mr. Webster was deeply incensed. The jury disagreed. Mr. Webster came to the next trial prepared with an attack on Huntington, in writing, covering many pages, denouncing his method and conduct.

This he read to my brother. But Huntington who, as I have said, adored Webster, was unwilling to have another encounter-- not in the least from any dread of his antagonist, but solely from his dislike to have a quarrel with the man on earth he most reverenced. Accordingly, Mr. Wells, the District Attorney of Greenfield, was called in, who conducted the trial at Lowell and succeeded in getting a conviction. My brother, who was very fond of Huntington, took an occasion some time afterward to tell Mr. Webster how much Huntington regretted the transaction, and how great was his feeling of reverence and attachment for him. Mr. Webster was placated, and afterward, when an edition of his speeches was published, sent a copy to Huntington with an inscription testifying to his respect.

The general reader may not care for the legal history of the trial, but it may have a certain interest for lawyers. Mr.

Wyman was indicted for embezzlement of the funds of the bank under the Revised Statutes of Ma.s.sachusetts, which provided that "if any cashier or other officer, agent or servant of any incorporated bank shall embezzle or fraudulently convert to his own use the property of the bank, he shall be punished,"

etc. It was earnestly contended that a president of a bank was not an officer within the meaning of the statute; but this contention was overruled by the presiding judge, who was sustained in that view by the Supreme Court on exception.

There was, however, no such offence as embezzlement known to the common law. So a person who fraudulently converted to his own use the property of another could only be convicted of larceny; and the offence of larceny could not be committed where the offender had been entrusted with the possession of the property converted, the essence of larceny being the felonious taking of the property from the possession of the owner. Further, n.o.body could be convicted of larceny except on an indictment or complaint which set forth the time and place of each single conversion. So, if a servant or agent appropriated the fund of his princ.i.p.al, the embezzlement extending over a long period of time, and it was not possible to set forth or to prove the time, place, and circ.u.mstances of any particular taking, the offender could not be convicted. The statute to which I have just referred was intended to cure both these difficulties; first, by making persons liable to punishment who fraudulently appropriated the property of others, notwithstanding they had come rightfully into possession; and next, the necessity of setting forth the particular transaction was obviated by an enactment that it should be enough to prove the embezzlement of any sum of money within six months of the time specified in the indictment.

After the conviction of Wyman, the case was carried to the Supreme Court, which held that the statute making bank officers liable included bank presidents. But the court held that the other part of the statute, providing for the mode of setting forth the offence in the indictment, did not apply to bank officers; and that they could only be held on an indictment which described the particular transaction, with time and place. So the verdict of guilty against Wyman was set aside, and a new trial ordered.

Before the new trial came on at Concord, a statute was pa.s.sed by the Legislature for the purpose of meeting this very case, extending the provisions of the Revised Statutes as to the mode of pleading in such cases to officers of banks. It was claimed and argued by Mr. Choate, with great zeal, eloquence, and learning, that this was an _ex post facto_ law, which could not, under the Const.i.tution, be made applicable to transactions which happened before its pa.s.sage. Mr. Choate argued this question for several hours. The court took time for consideration, and overruled his contention. There seemed nothing for it but to go to trial again on the facts, upon which one verdict of guilty had already been had. As they were going into the court-house in the morning, Mr. Choate said to Mr. h.o.a.r, whose chief part in the trial, so far, had been finding law books, hunting up authorities, and taking notes of the evidence: "You made a suggestion to me at the last trial which I did not attend to much at the time; but I remember thinking afterward there was something in it." Mr. h.o.a.r replied: "It seems to me that Wyman cannot be convicted of embezzlement unless the funds of the bank were entrusted to him. They must either have been in his actual possession or under his control.

There is nothing in the office of president which involves such an authority. It cannot exist unless by the express action of the directors, or as the result of a course of business of the bank." The facts alleged against Wyman were that he had authorized the discount of the notes of some friends of his who were irresponsible, and that he had, in some way, shared the proceeds. Mr. Choate seized upon the suggestion. The Government witnesses, who were chiefly the directors of the bank, were asked in cross-examination whether they had not consented that Mr. Wyman should have the right to dispose of the funds of the bank, or to give him power or authority to dispose of them. They supposed the question was put with the intent of making them morally, if not legally, accomplices in his guilt, or of charging them with want of fidelity or gross carelessness in their office. Accordingly, each of them indignantly denied the imputation, and testified that Wyman had no power or authority to authorize the discount or to meddle with the funds. When the Government case closed, the counsel asked the court to rule that as the funds were never entrusted to the possession of Wyman he could not be convicted of embezzlement. The court so held and directed an acquittal. This is another instance, not unusual in trials in court, of the truth of the old rhyme, with which the readers of "Quentin Durward" are familiar;

The page slew the boar, The peer had the gloire.

Mr. Webster always had a strong and kindly regard for my brother.

When Mr. h.o.a.r visited Washington in 1836, Webster received him with great kindness, showed him about the Capitol, and took him to the Supreme Court, where he argued a case. Mr.

Webster began by alluding very impressively to the great changes which had taken place in that Tribunal since he first appeared as counsel before them. He said: "No one of the judges who were here then, remains. It has been my duty to pa.s.s upon the question of the confirmation of every member of the Bench; and I may say that I treated your honors with entire impartiality, for I voted against every one of you." After the argument was over Mr. Webster gave Mr. h.o.a.r a very interesting sketch of the character of each of the judges, and told him the reasons which caused him to vote against confirmation in each case.

The next time I saw Daniel Webster was on July 4, 1844. He made a call at my father's house in Concord. I was near one of the front windows, and heard a shout from a little crowd that had gathered in the street, and looked out just as Mr.

Webster was coming up the front steps. He turned, put his hand into his bosom under his waistcoat and made a stately salutation, and then turned and knocked on the door and was admitted. He was physically the most splendid specimen of n.o.ble manhood my eyes ever beheld. It is said, I suppose truly, that he was but a trifle over five feet nine inches high, and weighed one hundred and fifty-four pounds. But then, as on all other occasions that I saw him, I should have been prepared to affirm that he was over six feet high and weighed, at least, two hundred. The same glamour is said to have attended Louis XIV., whose majesty of bearing was such that it never was discovered that he was a man of short stature until he was measured for his coffin.

Mr. Webster was then in the very vigor of his magnificent manhood. He stood perfectly erect. His head was finely poised upon his shoulders. His beautiful black eyes shone out through the caverns of his deep brows like l.u.s.trous jewels.

His teeth were white and regular, and his smile when he was in gracious mood, especially when talking to women, had an irresistible charm. I remember very little that he said.

One thing was, when the backwardness or forwardness of the season was spoken of, that there was a day--I think it was June 15--when, in every year vegetation was at about the same condition of forwardness, whether the spring were early or late. A gentleman who was in the room said: "You have the cool breezes of the sea at Marshfield?" "There, as at other sea places," replied Mr. Webster. When he rose to go, he said: "I have the honor to be a member of the Young Men's Whig Club of Boston. I must be in my place in the ranks."

I heard him also in Faneuil Hall, in the autumn of 1844, after the elections in Maine and Pennsylvania and in the South had made certain the defeat of Mr. Clay. I remember little that he said, except from reading the speech since.

What chiefly impressed the audience was the quotation from Milton, so well known now:

What though the field be lost?

All is not lost; the unconquerable will, And study of revenge, immortal hate, And courage never to submit or yield, And what is else not be overcome.

I also saw Mr. Webster at the inauguration of Edward Everett as President of Harvard, April 30, 1846. It was perhaps the proudest period of Webster's life. It was also, perhaps, the greatest day of the life of Edward Everett. Webster had been Everett's great over-shadower. Gov. Everett would have been, but for him, the chief public man and the orator of Ma.s.sachusetts at that time. He had returned from the Court of St. James crowned with new laurels, and had been called to succeed Josiah Quincy as the head of the University. By a simple but impressive inaugural ceremony the Governor had just invested Mr. Everett with his office, and delivered to him the keys and the charter. Everett was stepping forward to deliver his inaugural address when Webster, who had come out from Boston a little late, came in upon the stage by a side door. President and orator and occasion were all forgotten.

The whole a.s.sembly rose to greet him. It seemed as if the cheering and the clapping of hands and the waving of handkerchiefs would never leave off. The tears gushed down the cheeks of women and young men and old. Everything was forgotten but the one magnificent personality. When the din had subsided somewhat, Mr. Everett, with his never-failing readiness and grace, said: "I would I might antic.i.p.ate a little the function of my office, and saying--_Expectatur oratio in vernacula_-- call upon my ill.u.s.trious friend who has just entered upon the stage to speak for me. But I suppose that the proprieties of the occasion require that I speak for myself."

It is to the credit of Mr. Everett and of that other Ma.s.sachusetts orator, Rufus Choate, that no tinge of jealousy or of envy ever embittered in the smallest degree their hearty love and support of their friend. They were his pupils, his companions, his supporters, his lovers, while he lived, and were his best eulogists when he died.

I heard another speech of his, which I think was never reported.

He appeared before a Committee of the Legislature as counsel for the remonstrants against the scheme to fill up the Back Bay lands.

I do not think the employment of a Senator of the United States as counsel before the Legislature would be approved by public opinion now.

I do not know what year it was, but probably 1849 or 1850.

He had grown old. But I learned more of the fashion of his mental operations than could be learned from his speeches on great occasions, especially after they had been revised for publication. He spoke with much contempt of a pet.i.tion signed by many of the foremost merchants and business men of Boston. He described with great sarcasm the process of carrying about such pet.i.tions, and the relief of the person to whom they were presented on finding he was not asked to give any money. "Oh, yes, I'll sign--I'll sign." He then read out one after another the names of men well known and honored in the city. He threw down the pet.i.tion with contempt, and the long sheet fell and unrolled upon the floor.

He had a singular habit, which made it wearisome to listen to his ordinary speech, of groping after the most suitable word, and trying one synonym after another till he got that which suited him best. "Why is it, Mr. Chairman, that there has gathered, congregated, this great number of inhabitants, dwellers, here; that these roads, avenues, routes of travel, highways, converge, meet, come together, here? Is it not because we have here a sufficient, ample, safe, secure, convenient, commodious, port, harbor, haven?" Of course when the speech came to be printed all the synonyms but the best one would be left out.

Mr. Webster seemed rather feeble at that time, and called upon his friend Mr. William Dehon to read for him the evidence and extracts from reports with which he had to deal. His tome was the tone of ordinary conversation, and his speech, while it would not be called hesitating, was exceedingly slow and deliberate. I have been told by persons who heard him in the Supreme Court in his later years that the same characteristic marked his arguments there, and that some of his pa.s.sages made very little impression upon the auditors, although they seemed eloquent and powerful when they came to be read afterward.

His is frequently spoken of as a nervous Saxon style. That is a great mistake, except as to a few pa.s.sages where he rose to a white heat. If any person will open a volume of his speeches at random, it will be found that the characteristic of his sentences is a somewhat ponderous Latinity.

A considerable number of Democrats joined the Free Soil movement in 1848. Conspicuous among them was Marcus Morton, who had been Governor and one of our ablest Supreme Court judges, and his son, afterward Chief Justice, then just rising into distinction as a lawyer. The members of the Liberty Party also, who had cast votes for Birney in 1844, were ready for the new movement. But the Free Soil Party derived its chief strength, both of numbers and influence, from the Whigs. The Anti-Slavery Whigs clung to Webster almost to the last. He had disappointed them by opposing the resolution they offered at the Whig State Convention, pledging the party to support no candidate not known by his acts or declared opinions to be opposed to the extension of slavery. But he had coupled his opposition with a declaration of his own unalterable opposition to that extension, and had said, speaking of those who were in favor of the declaration: "It is not their thunder."

He declared in the Senate, as late as 1848: "My opposition to the increase of slavery in the country, or to the increase of slave representation in Congress, is general and universal.

It has no reference to lines of lat.i.tude or points of the compa.s.s. I shall oppose all such extension, and all such increase, at all times, under all circ.u.mstances, even against all inducements, against all combinations, against all compromises."

So the Anti-Slavery Whigs eagerly supported him as their candidate for the Whig nomination in 1848.

If Mr. Webster had been nominated for the Presidency in 1848, the Free Soil Party would not have come into existence that year. There would have been probably some increase in the numbers of the Liberty Party; yet the Anti-Slavery Whigs of Ma.s.sachusetts would have trusted him. But the nomination of General Taylor, a Southerner, one of the largest slaveholders in the country, whose laurels had been gained in the odious Mexican War, upon a platform silent upon the engrossing subject of the extension of slavery, could not be borne. The temper of the Whig National Convention was exhibited in a way to irritate the lovers of freedom in Ma.s.sachusetts. When some allusion was made to her expressed opinions, it was received with groans and cries of "Curse Ma.s.sachusetts." But, on the whole, the Ma.s.sachusetts Whigs shared the exultant antic.i.p.ation of triumph, and of regaining the power from which they had been excluded since the time of John Quincy Adams, except for the month of Harrison's short official life. But as the convention was about to adjourn, intoxicated with hope and triumph, Charles Allen, a delegate from Ma.s.sachusetts, a man of slender figure, rose, and with a quiet voice declared the Whig Party dissolved. Never was a prediction received with more derision; never was prediction more surely fulfilled.

He was reinforced by Henry Wilson, afterward Vice-President of the United States.

Immediately on their return from Philadelphia, a call was circulated for a convention to be held at Worcester of all persons opposed to the nomination of Ca.s.s and Taylor. The call was written by E. R. h.o.a.r. My father, Samuel h.o.a.r, was its first signer.

This is the call. It should be preserved in a form more enduring than the leaflet, of which I possess, perhaps, the only copy in existence.

"TO THE PEOPLE OF Ma.s.sACHUSETTS.

"The Whig National Convention have nominated General Taylor for President of the United States. In so doing they have exceeded their just authority, and have proposed a candidate whom no Northern Whig is bound to support.

"HE IS NOT A WHIG, when tried by the standard of our party organization. He has never voted for a Whig candidate, has declared that the party must not look to him as an exponent of its principles, that he would accept the nomination of the Democratic Party, and that he would not submit his claims to the decision of the Whigs, acting through their regularly const.i.tuted Convention.

"HE IS NOT A WHIG, if judged by the opinions he entertains upon questions of public policy. Upon the great questions of currency and Finance, of Internal Improvements, of Protection to American Industry, so far from agreeing with the Whigs, he has distinctly avowed that he has formed no opinion at all.

"HE IS NOT A WHIG, if measured by the higher standard of principle, to which the Whigs of Ma.s.sachusetts and of the North have pledged themselves solemnly, deliberately, and often. He is not opposed to the extension of Slavery over new territories, acquired, and to be acquired, by the United States. He is a Slave-holder, and has been selected because he could command votes which no Whig from the free States could receive.

"To make room for him, the trusted and faithful Champions of our cause have all been set aside.

"The Whigs of Ma.s.sachusetts, by their Legislature, and in their popular a.s.semblies, have resolved, that opposition to the extension of Slavery is a fundamental article in their political faith. They have spoken with scorn and upbraiding of those Northern Democrats who would sacrifice the rights and interests of the Free States upon the altar of party subserviency.

"The Whigs of the Legislature have recently declared to the country, 'that if success can attend the party, only by the sacrifice of Whig principles, or some of them,' they did not mean to be thus successful; that they are determined 'to support a candidate who will not suffer us to be over- balanced by annexations of foreign territory, nor by the further extension of the inst.i.tution of Slavery, which is equally repugnant to the feelings, and incompatible with the political rights of the Free States'; and that they 'believe it to be the resolute purpose of the Whig people of Ma.s.sachusetts, to support these sentiments, and carry into effect the design which they manifest.'

"Believing that the support of General Taylor's nomination is required by no obligations of party fidelity, and that to acquiesce in it would be the abandonment of principles which we hold most dear, treachery to the cause of Freedom, and the utter prostration of the interests of Free Labor and the Rights of Freemen:

"The undersigned, Whigs of Ma.s.sachusetts, call upon their fellow-citizens throughout the Commonwealth, who are opposed to the nomination of Ca.s.s and TAYLOR, to meet in Convention at Worcester, on _Wednesday,_ the 28th day of June current, to take such steps as the occasion shall demand, in support of the PRINCIPLES to which they are pledged, and to co-operate with the other Free States in a Convention for this purpose."

My first political service was folding and directing these circulars. The Convention was held, and Samuel h.o.a.r presided.

It was addressed by men most of whom afterward became eminent in the public service. Among them were Charles Sumner, Charles Francis Adams, Henry Wilson, E. R. h.o.a.r, Edward L. Keyes, Charles Allen, Lewis D. Campbell, of Ohio, and Abraham Payne, of Rhode Island. Richard H. Dana was present, but I think he did not speak. William Lloyd Garrison and Francis Jackson were present, but took no part whatever. I rode to Boston in a freight car after the convention was over, late at night.

Garrison and Jackson were sitting together and talking to a group of friends. Garrison seemed much delighted with the day's work, but said he heard too much talk about the likelihood that some of the resolutions would be popular and bring large numbers of votes to the party. He said: "All you should ask is, what is the rightful position? and then take it."

Among the resolutions was this:

"That Ma.s.sachusetts looks to Daniel Webster to declare to the Senate and to uphold before the country the policy of the Free States; that she is relieved to know that he has not endorsed the nomination of General Taylor; and that she invokes him at this crisis to turn a deaf ear to 'optimists' and 'quietists', and to speak and act as his heart and his great mind shall lead him."

Daniel Webster's son Fletcher was present, and heartily in accord with the meeting; and this resolution was pa.s.sed with his full approval. It met great opposition from the men who had come into the movement from the Liberty Party and from the Democratic Party. The shouts of "No, no; too late" were nearly, if not quite, equal to the expressions of approval.

But the president declared that it was pa.s.sed.

Mr. Webster sulked in his tent during the summer, and at last, September 1, 1848, made a speech at Marshfield, in which he declared the nomination of Taylor not fit to be made, but gave it a half-hearted support. My brother, Judge E. R.

h.o.a.r, had been an enthusiastic admirer of Webster, who had treated him with great personal kindness; and, as I have said, he had been a.s.sociated with Mr. Webster in the famous Wyman trial. Mr. Webster made a speech in the Senate in August, declaring his renewed opposition to the extension of slavery.

Mr. h.o.a.r wrote a letter expressing his satisfaction with that speech, and urging him to take his proper place at the head of the Northern Free Soil movement. This is Mr. Webster's reply. It is interesting as the last anti-slavery utterance of Daniel Webster.