Another of the brightest of the young lawyers when I came to the Bar was H. He had, however, had rather an unfortunate introduction to life. His father, who was a very wealthy and prosperous manufacturer, sent him to Yale College and supplied him liberally with money, not only for his support, but for the indulgence of every extravagant taste. Beside spending what his father allowed him, he incurred a good many debts, expecting to find no difficulty in their payment. His father failed in business with a great crash about the end of his junior year and died suddenly. He kept on, however, on credit, until he graduated and then came out with a heavy load of debt, and no resources for studying his profession.

He got thorough, however, by dint of plausible manners. He was a very honest fellow in other respects, but he got the habit of incurring debts which he could not pay. Then he took to drinking hard, and finally went to New York, and died after a career of dissipation. But everybody liked him. Drunk or sober, he was the best company in the world, full of anecdote flavored with a shrewd and not ill-natured wit. There was a manufacturer in a village near Worcester who had failed in business owing large debts all about. He was a man of enormous bulk, the fattest man in the whole region round-about, weighing considerably over three hundred. He left the State to avoid his creditors, and dwelt in New York, keeping himself out of their reach. At last it was discovered by a creditor that he used to come to Worcester in the train which arrived from New York on the Western Railroad shortly before midnight Sat.u.r.day, go over to his old home, which was not far off, stay there Sunday, when he was exempt from arrest, and take the cars Sunday night at about the same hour for New York. Accordingly old Jonathan Day, a veteran deputy-sheriff, armed with an execution, lay in wait for him one dark and stormy Sat.u.r.day night at the little old wooden depot of the Western Railroad, some hundred or two feet from Grafton Street. The train came in, and the debtor got out. The old General laid his hands on him, and told him he was his prisoner. He protested and demurred and begged, making all manner of promises to pay the debt if the officer would not take him to jail. But Day was inexorable. Meantime the train had gone on, and the keeper of the depot had put out the lights and gone off. There was n.o.body left in the darkness but the officer and the debtor.

"Well," said the fellow, "if you are going to take me to jail you must carry me. I won't walk." So he sat himself down on the platform. Day tried to persuade him to walk, and then tugged and tugged at his collar, but without the slightest effect. He might as well have tried to move a mountain. He waited in a good deal of perplexity, and at last he heard the rattle of wheels on Grafton Street, and gave a loud yell for a.s.sistance. The owner of the wagon came to the scene.

General Day demanded his help as one of the posse comitatus.

But it was as hard to the two to move the obstruction as it had been for the old General alone. So the General put the debtor in charge of his new recruit, and went off up street to see what counsel he could get in the matter. All the lights in the lawyers' offices and places of business were out except a solitary gleam which came from the office of my friend H. He was sitting up alone, soaking himself with the contents of a bottle of brandy. General Day found him sitting there and stated his case. My friend heard it through, took it into consideration, and took down and consulted the Revised Statutes and the Digest. At last he shook his head with an air of drunken gravity and said: "I don't find any express provision anywhere for such a case. So I think we must be governed by the rule of law for the case nearest like it we can find. That seems to be the case of the attachment of personal property, such as lumber, which is too bulky to be removed. My advice to you is to put a placard on him saying he is attached, and go off and leave him till Monday morning."

When I was a young man, one summer a few years after my admission to the Bar, I took a journey on foot with Horace Gray through Berkshire County. We started from Greenfield and walked over the Hoosac Mountain to Adams and Williamstown, then over the old road to Pittsfield, then to Stockbridge, Great Barrington, and the summit of Mt. Washington, now better known as Mt.

Everett or Taghsomi; thence to Bashpish Falls in New York, and to the Salisbury Lakes in Connecticut. We visited many interesting places and enjoyed what has always seemed to me the most beautiful scenery on earth.

There were one or two quite ludicrous adventures. I went alone to the top of Bald Mountain in Lenox one day. Gray had been there and preferred to visit a neighboring hilltop.

As I approached the summit, which was a bare pasture, I came upon a powerful bull with a herd of cattle near him. He began to bellow and paw the ground and move toward me in angry fashion.

There was no chance for any place of refuge which I could hope to gain. I looked around for some rock or instrument of defence. It was, I think, the most imminent danger to which I have ever been exposed. I was calculating my capacity for dodging the creature when suddenly a sound like a small clap of thunder was heard. The rest of the herd, which seemed quite wild, seeing the approach of a stranger, had taken alarm and started off down the hillside on a full run, their rushing and trampling causing the earth to reverberate beneath their tread and produce the sound of which I have just spoken.

The old bull hearing the sound and seeing his companions departing concluded he would follow their example. He turned tail too, and retreated down the mountain side, much to my relief.

On our walk through Lanesboro we stopped at a plain country tavern to get lunch. There were several codgers such as in those days used to haunt country bar-rooms about eleven o'clock in the morning and four o'clock in the afternoon. Sitting in an old wooden chair tilted back against the wall of the room was one of them curled up with his knees sticking up higher than his head. He looked at Gray's stately proportions and called out: "How tall are you?" Gray, who was always rather careful of his dignity, made some brief answer not intended to encourage familiarity. But the fellow persisted: "I would like to measure with you." Gray concluded it was best to enter into the humor of the occasion. So he stood up against the wall. The other man proceeded to draw himself up out of the chair, and unroll, and unroll, and unroll until at last his gigantic stature reached up almost as high as Gray's. But he fell short a little. I learned, later, that it was a man named Shaw who afterward became famous as a writer and humorist under the pseudonym of Josh Billings. He was the son of Henry Shaw, formerly of Lanesboro; at that time a millionaire dwelling in New York, and known to fame as one of the two Ma.s.sachusetts Representatives who voted for the Missouri Compromise in 1820. Henry Shaw was, I believe, a native of Lanesboro, and had represented the Berkshire district in Congress.

The person whom the Worcester lawyers of this time like best to remember was Peter C. Bacon. He was the Dominie Sampson of the Worcester Bar. I suppose he was the most learned man we ever had in Worcester, and probably, in Ma.s.sachusetts.

He was simple and guileless as a child; of a most inflexible honesty, devoted to the interest of his clients, and an enthusiastic lover of the science of the law. When, in rare cases, he thoroughly believed in the righteousness of his case, he was irresistible. But in general he was full of doubts and hesitation.

He was, until he was compelled to make his arguments more compact by the rules of court limiting the time of arguments, rather tedious. He liked to go out into side-paths and to discourse of matters not material to the issue but suggested to him as he went along. He had a curious fashion of using the ancient nomenclature of the Common law where it had pa.s.sed out of the knowledge even of most lawyers and the comprehension of common men. He would begin his appeal to the jury in some case where a fraud had been attempted on his client, by saying, "Gentlemen, the law abhorreth covin." He was a lawyer everywhere.

His world was the Court-house and his office. I met him in the street, of a Sunday noon, one summer and said to him, "Why, Brother Bacon, you must have had a long sermon to-day."

"Oh," Mr. Bacon said, "I stayed to the Sunday-school. I have a cla.s.s of young girls. It's very interesting. I've got 'em as far as the Roman Civil Law."

Mr. Bacon could seldom be made angry by any incivility to himself. But he resented any attempt to deprive a client, however much of a n'er-do-well he might be, of all the rights and forms of a legal trial. He was also much disturbed if any lawyer opposed to him misstated a principle of law, who ought, in his judgment, to know better. I was once trying a case against him and his partner, Judge Aldrich, where General Devens was my a.s.sociate. Devens was summing up the case, and complaining of the conduct of some parties interested in the estate of a deceased person. One of them was a son of a deceased niece. There being no children, under our law, the nephews and nieces inherit, but not the children of deceased nephews or nieces, when there are living nephews or nieces.

General Devens, not having in his mind the legal provision at the moment, said to the jury: "The sound of the earth on the coffin of the old lady had scarcely ceased when one of these heirs hurried to the probate office to get administration."

Mr. Bacon rose and interrupted him with great emotion. "He is not an heir."

"I said," Mr. Devens repeated, "one of these heirs, Mr.

A. F."

Bacon burst into tears and said again, with a broken voice: "He is not an heir, I say, he is not an heir."

I saw the point and whispered to Devens: "An a.s.sumed heir."

"Very well," Devens said, "an a.s.sumed heir, if my friend likes it better." Bacon replied with a "Humph" of contentment and satisfaction, and the matter subsided. As I was walking home from the court-house with Mr. Bacon afterward I expressed my regret at the occurrence and told him that General Devens had the greatest respect for him. Mr. Bacon replied: "He had no business to say it. Aldrich told me to tell him he had not read the 'Revised Statutes.' But I would not say such a thing as that, sir, about any man."

But Brother Bacon had the kindliest of hearts. It was impossible for him to bear malice or retain resentment against anybody.

When I was a youngster I was once in a case where Bacon was on the other side. Charles Allen was my a.s.sociate. It was a case which excited great public feeling. There were throngs of witnesses. It was tried in the middle of the terrific heats of one of the hottest summers ever known in Worcester.

Allen, who had a power of stinging sarcasm which he much delighted to use, kept Bacon nervous and angry through the whole trial.

At last, one afternoon, Bacon lost his patience. When the Court adjourned, he stood up on a little flight of steps on the outside of the Court-house and addressed the crowd, who were going out. He said: "Charles Allen has abused me all through this trial. He is always abusing me. He has abused me ever since I came to this Bar. I have said it before and I will say it again--_he is a curious kind of a man."_ This utterance relieved Brother Bacon's wounded feelings and he never probably thought of the matter again.

One of the great events in Bacon's life was his receiving the degree of Doctor of Laws from Brown University, where he was graduated. This gave infinite satisfaction to his brethren of the Bar, who were all very fond of him. It was at once proposed, after the old Yankee fashion in the country when a man got a new hat or a new suit of clothes, that we should all go down to T.'s to "wet" it. T. was the proprietor of a house a few miles from Worcester, famous for cooking game and trout in the season, and not famous for a strict observance of the laws against the sale of liquor. There was a good deal of feeling about that among the temperance people of the town, although it was a most excellent, properly kept house in all other respects. But the prejudice against it of the strict teetotalers had occasioned some entirely unfounded scandal about its management in other matters. Mr.

Bacon, when invited by the Bar to go as a guest, accepted the invitation, but stipulated that he should have provided for him a pint bottle of English ale. He said he was opposed, on principle, to drinking intoxicating liquors, but his doctors had ordered that he should drink a pint of ale every day with his dinner. That was provided. The Bar sat down to dinner at an early hour and the fun and frolic were kept up far into the small hours of the night. Brother Bacon was the subject of every speech and of every toast. He seemed to think it was necessary for him to reply to every speaker and toast.

So he was kept on his legs a great part of the night. As he sipped his modest tumbler of ale, Brother Dewey, who sat next to him, would replenish it, when Mr. Bacon was not looking, from a bottle of champagne. So at least two quart bottles of champagne were pa.s.sed into the unsuspecting Brother Bacon through that single pint of beer. When we broke up, the host came to ask us how we had enjoyed ourselves, and Mr. Bacon told him he would like to know where he got his English ale, which he thought was the best he had ever tasted in his life.

It is the only instance that I know of in modern times of the repet.i.tion of the miracle of the widow's cruse.

Judge Thomas, then holding the Supreme Court at Worcester, wanted very much indeed to go down with the Bar, but he thought it would not quite do. The next morning, Mr. Bacon had to try a libel for adultery between two parties living in the town where the Bar had had their supper. He had had no chance to see his witnesses, who got into town just as the Court opened. So he had to put them on and examine them at a venture.

The first one he called was a grave-looking citizen. Mr.

Bacon asked him a good many questions, but could get no answer which tended to help his case, and at last he said, with some impatience: "Mr. Witness, can you tell me any single fact which tends to show that his man has committed adultery?"

"Well, all I know about it, Squire Bacon," replied the witness, "is that he's been seen at Charlie T.'s"--the inn where Bacon had had his supper the night before. There was an immense roar of laughter from the Bar, led by Judge Thomas, the ring of whose laugh could have been heard half way across the square.

Brother Bacon, though a modest and most kindly man, used to think he had a monopoly of the abstruser knowledge in regard to real property and real actions. It used sometimes to provoke him when he found a competent antagonist in cases involving such questions. There was a suit in which Bacon was for the demandant where a creditor had undertaken to levy an execution of property standing in a wife's name but claimed to have been conveyed to her in trust for the husband on consideration paid by him. In such cases, under the Ma.s.sachusetts law, the land may be levied upon as the property of the debtor, notwithstanding the ostensible t.i.tle is in another. The wife contested the facts. But after the bringing of the suit, the wife died, and the husband by her death became tenant by the courtesy. Of course his t.i.tle as tenant by the courtesy was unaffected by the previous levy, and his wife's right to contest the demand devolved upon him. The husband and wife had both been made parties defendant to the suit under the Ma.s.sachusetts practice. It would not do to let the creditor get judgment. Under the advice of Mr. Nelson, afterward Judge, one of the most learned and careful lawyers, the defendant pleaded a special non-tenure, and the case was reported to the full bench of the Supreme Court, where Mr. Bacon was employed for the plaintiff. The report inaccurately said that the defendant filed a disclaimer. Mr. Bacon made a very learned argument to show that upon the facts the disclaimer could not be supported, and was going on swimmingly, under full sail. Mr. Bacon said in his argument: "If he had pleaded non-tenure, I admit, your Honors, he would have been pretty well off." Whereupon Judge h.o.a.r sent for the original papers, and looking at them read the plea, and said: "Isn't that a plea of non-tenure?" Mr. Bacon was obliged to admit that it was. The Chief Justice said: "Well, then, the tenant is in the condition which you describe as being pretty well off, isn't he, Brother Bacon?" Bacon answered with an angry and impatient "Humph." The Chief Justice said: "Are there any other objections to the plea, Brother Bacon?" "More than forty, your Honor," replied Bacon indignantly, "which I should state to you at a proper time." The Chief Justice said that that seemed to be the proper time. But Mr. Bacon sat down in high dudgeon, without further remark.

He was the kindliest of men, both to man and beast. I once was at a country tavern where Bacon and I were to dine. It was about the time of the session of the Supreme Court. I was sitting on the veranda of the hotel waiting for dinner to be ready, in the summer afternoon. Mr. Bacon took a little walk, and as he came along and was pa.s.sing the porch, a puppy ran after him, came up behind, and seized his pantaloons in his teeth, making quite a rent in them. Bacon looked round and saw the mischief, and shook his finger at the poor dog.

I am sure he had no idea that anybody of the human species was within hearing. The animal crouched down in great terror, expecting a beating. Mr. Bacon paused a moment with his uplifted finger, and addressed the cur. "Why do you try to bite me? Why do you tear my pantaloons? Do you think I can go through the Supreme Court without pantaloons?" With that he left the poor dog to the reproaches of his own conscience and took no further notice of the transaction.

I ought perhaps, as I have told this story at Brother Bacon's expense, to tell one at my own where he came out decidedly ahead. We were opposed in a real estate case where the other evidence of the t.i.tle was pretty strong Bacon's way, but the ancient bounds seemed to agree with my client's theory. I addressed the jury with all the earnestness in my power in favor of the importance of maintaining the ancient landmarks, quoting the curse of the Scripture on him that removed them, and endeavored to make them see how much of the safety and security of property depended on sticking to them in spite of any amount of fallible human testimony. I thought I had made a good impression. When Brother Bacon came to reply, he told the jury about the Roman G.o.d Terminus who watched over boundaries, and after quite an eloquent description, he told the jury: "Brother h.o.a.r always seems to me when he makes this argument, which I have heard a good many times before, to think he is the G.o.d Terminus, and that the protection of all our modern landmarks is in his exclusive province."

The jury were very much amused. I have forgotten how the case was decided. But I should doubtless remember if it had been decided in my favor.

Quite late in life some of Mr. Bacon's clients, seeing that he was out of health, and grateful for his long, faithful and poorly paid service, made an arrangement to send him on a journey to Europe. He was gone a little more than a year, visiting England, France, Italy and Spain, and returning with new vigor for another ten years of hard work. His interest in Europe had come chiefly from the literature which he had read in his younger days. He was not very familiar with much English prose or poetry later than the time of Addison. In one of his first letters in London he announced with great satisfaction, "I have a room not far from the celebrated Westminster Abbey mentioned in the _Spectator."_

But Brother Bacon ought not to be remembered alone, or chiefly, for his eccentricities. He was a profound, accurate and able jurist. The great interests of clients were safe with him.

To him the profession of the lawyer was a sacred office. I never think of him without recalling Cicero's beautiful description in the "De Oratore" of the old age of the great lawyer:

Quit est enim praeclarius quam honoribus et republicae muneribus perfunctum senem posee suo jure dicere id quot apud Enium dicit ille Pythias Apollo, se esse eum, unde sibi, si no populi et reges, at onmnes sui cives consilium expetant;

suarum rerum incerti quos ego ope mea ex incertis certos compotesque consili dimitto ut ne res temere tractent turbidas.

Est enim sine dubio domus jurisconsulti totius oraculum civitatis.

Mr. Bacon lived to celebrate his golden wedding, and ended a stainless and honored life in a ripe old age, mourned by the whole community, of which he had been a pillar and an ornament. His portrait hangs in the Court House where he would have loved best to be remembered.

In my early days at the Worcester Bar there were a good many bright men, young and old, who had their offices in the country towns, but who tried a good many cases before juries. All the courts for the county in those days were held in Worcester.

Among these country lawyers was old Nat Wood of Fitchburg, now a fine city; then a thriving country town. Mr. Wood had a great gift of story-telling, and he understood very well the character and ways of country farmers. He used to come down from Fitchburg at the beginning of the week, stop at the old Sykes Tavern where the jurymen and witnesses put up, spend the evening in the bar-room getting acquainted with the jurymen and telling them stories. So when he had a case to try, he was apt to have a very friendly tribunal. His enemies used to say that he always contrived to sleep with one juryman himself, and have his client sleep with another, when he had a case coming on. He was quite irritable and hasty, and would sometimes break out with great indignation at some fancied impropriety of the other side, without fully understanding what was going on. I was once examining a witness who had led rather a roving and vagabond life. I asked him where he had lived and he named seven different towns in each of which he had dwelt within a very short time. I observed: "Seven mighty cities claimed great Homer dead." Wood instantly sprang to his feet with great indignation. "Brother h.o.a.r, I wish you would not put words into the witness's mouth."

Wood was a native of Stirling, a thinly settled country town near the foot of Mount Wachusett. The people of that town were nearly equally divided between the Unitarian and Universalist congregations. Each had its meeting house fronting on the public common or Green, as it was called. In the summer the farmers would come to meeting from distant parts of the town, bringing luncheon with them; have a short intermission after the morning service, and then have a second service in the afternoon. During the recess, in pleasant summer weather, the men of the two congregations would gather together on the Green, discussing the news of the town, and very often getting into theological controversies. In the winter, they gathered in the tavern or post-office in the same way. There was one Universalist champion who told the gathering that he would make any man admit the truth of Universalism in five minutes. He was a well known and doughty champion, and the Unitarians were rather loth to tackle him. But, one Sunday, Lawyer Wood came home to spend the day at his birthplace, and the Unitarians thought it was a good chance to encounter the Universalist champion. So they accepted his challenge and put Wood forward to meet him.

The Universalist theologian began: "You'll admit there is a G.o.d?"

"No, I'll be d.a.m.ned if I do," replied Wood.

The fellow was completely non-plussed. He had got to take up his five minutes in compelling Wood to admit the existence of a Creator. So he was obliged to retire from the field discomfited.

Another of our leaders at the Bar was Henry Chapin. He had made his way from a rather humble place in life to be one of the leaders of a very able Bar, Mayor of Worcester, and to hold a place of large influence in the various business, social, charitable and religious activities of the community.

He was not specially learned, specially profound or specially eloquent. But he had a rare gift of seizing upon the thought which was uppermost in the minds of excellent and sensible men, country farmers, skilled workmen in the shops, business men, expressing it in a clear and vigorous way, always agreeing with the best sentiment of the people. This, with an unfailing courtesy and pleasant humor and integrity of character and life gave him great popularity. He was exceedingly happy in short speeches at dinners or at political meetings. He had a fund of entertaining anecdote which never seemed to fail. He was very careful not to seem dogmatic, or to a.s.sert himself too strongly. He would put forward his opinion with saying, "It strikes my mind," or "It has occurred to me,"

or "I thought perhaps it was possible," or "It is my impression."

I remember once protesting before old Judge Byington against some objection which the counsel on the other side had made to a witness testifying to his impressions. I told the Judge that Brother Chapin never in his life stated anything more strongly. If you asked him if he were married, he would say it was his impression he was. The Judge said: "Well, we have a lawyer in Berkshire County who has the same habit.

Only if you ask him if he is married it is his impression he isn't."

It is said that when he went to see the Siamese Twins, he observed to the exhibitor, "Brothers, I suppose." But I believe that story had been told before of one of the Royal Dukes.

Mr. Chapin was nominated by the Republicans for Congress and accepted and would have had a useful and distinguished public life. But he became alarmed by the opposition of the Know- Nothings and withdrew from the canva.s.s much to the dissatisfaction of his political friends. That ended his political aspirations.

But he was soon after appointed to the more congenial office of Judge of Probate, which he discharged to great public satisfaction until his lamented death.

CHAPTER x.x.xVIII SOME JUDGES I HAVE KNOWN

Unquestionably the most important character in the legal history of Ma.s.sachusetts is Chief Justice Lemuel Shaw. He was a great lawyer before he came to the Bench. He had written one or two very able articles for the _North American Review,_ one of them a vigorous statement of the opinion of Ma.s.sachusetts upon slavery. He was the author of a pet.i.tion signed by many of the leading men of Ma.s.sachusetts in opposition to the high tariff of 1828. No more powerful statement of the argument against high protection can be found. I have been surprised that the modern free-traders have not long ago discovered it, and brought it to light. He was one of the managers of the impeachment of Judge Prescott, securing a conviction against a powerful array of counsel for the defendant, which included Daniel Webster. He was consulted in difficult and important matters by eminent counsel in other counties than Suffolk.