Gladstone showed in his speech the profounder reflection on the general subject, the more philosophy, and the intenser earnestness; Disraeli showed quickness of wit, a ready command of his resources, ability for subtle distinctions, and glimpses of his almost Satanic capacity for mocking and jeering. He describes Mr. Gladstone most felicitously as "inspired by a mixture of genius and vexation." He speaks of his majority as a "mechanical majority, a majority the result of heedlessness of thought on the part of members who were so full of other questions that they gave pledges in favor of the ballot without due consideration."
He said: "There is a celebrated river, which has been the subject of political interest of late, and with which we are all acquainted. It rolls its magnificent volume, clear and pellucid, in its course; but it never reaches the ocean; it sinks into mud and morass. And such will be the fate of this mechanical majority. The conscience of the country is against it. It is an old-fashioned political expedient; it is not adapted to the circumstances which we have to encounter in the present, and because it has no real foundation of truth or policy, it will meet with defeat and discomfiture."
Gladstone had, what is quite rare, and what no famous American orator that I now think of, except Choate and Evarts, have had—a tendency to diffuse and somewhat involved speech, and at the same time a gift of compact epigrammatic utterance on occasions. When Mr. Evarts, who was my near relative, and a man with whom I could take a liberty, came into the Senate, I said to him that we should have to amend the rules so that a motion to adjourn would be in order in the middle of a sentence; to which he replied that he knew of nobody in this country, who objected to long sentences, except the criminal classes.
Gladstone was the last of a school of oratory, and the last of our time—I hope not for all time—of a school of statesmen. When he entered upon a discussion in Parliament, or on the hustings, he elevated it to the highest possible plane. The discussion became alike one of the highest moral principles and the profoundest political philosophy. He seemed to be speaking as our statesmen of the Revolutionary time, and the time of framing our Constitution. He used to speak to all generations alike. What he had to say would have been true and apt and fit to be uttered in the earlier days of Athens and Rome, and true and apt and fit to be uttered for thousands of years to come. He had, in a large measure, a failing which all Englishmen have, and always had; the notion that what is good for England is good for humanity at large. Still it was a lofty morality and a lofty ideal statesmanship. It was sincere. What he said, that he believed. It came straight from his heart, and he kindled in the bosoms of his listeners the ardor of his own heart. He was not afraid of his ideals.
I heard Dr. Guthrie in Edinburgh in 1860. It was a hot day. My companion was just getting well from a dangerous attack of bleeding at the lungs. We made our way with difficulty into the crowded church. The people were, almost all of them, standing. We were obliged, by my friend's condition, to get out again before the sermon. I remember, however, the old man's attitude, and his prayer in the racy, broad Scotch, the most tender, pathetic and expressive language on earth for the deeper emotions as well as for humor. I wonder if my readers have ever seen the version of the Psalms—
"Frae Hebrew Intil Scottis," by P. Hately Waddell, LL.D.,Minister, Edinburgh, 1891.
If not, and they will get it, a new delight is in store for them, and they will know something of the diction of Dr. Guthrie.
He once began a prayer, "O Lord, it is a braw thing to loe ye. But it is a better (bitter) thing to hate ye."
The beauty of this dialect is that while it is capable alike of such tenderness, and such lofty eloquence, and such exquisite and delicate humor, it is, like our Saxon, incapable of falsetto, or of little pomposities.
I heard Lyman Beecher, then a very old man, before a meeting of the members of the Massachusetts Legislature in 1852, when the measure known as the Maine Liquor Law was pending. He bore unmistakable marks of advanced age. But there were one or two passages that showed the power of the orator, one especially in which he described the beauty and delight of our homes, and intemperance threatening them with its waves like a great sea of fire.
I saw Henry Ward Beecher several times in private, and had pleasant talks with him. But I am sorry to say I never heard him speak, so far as I can now remember, on any occasion when he put forth his power. But if half that is told of his speeches, during the Civil War, some of them to hostile and angry audiences, be true, he was a consummate master. One story is told of him which I suppose is true, and, if it be true, ranks him as one of the greatest masters of his art that ever lived. It is said that he was speaking to a great crowd in Birmingham, or perhaps Liverpool, which constantly goaded him with hostile interruptions, so that he had great difficulty in getting on. At last one fellow provoked the cheers and applause of the audience by crying out—"Why didn't you put down the Rebellion in sixty days as you said you would?" Beecher paused a moment until they became still, in their eagerness to hear his reply, and then hurled back—"We should if they had been Englishmen." The fierce, untamed animal hesitated a moment between anger and admiration, and then the English love of fair play and pluck prevailed, and the crowd cheered him and let him go on.
But any man who reads Beecher's delightful "Letters from the White Mountains," or some of his sermons, and imagines his great frame, and far-sounding voice, will get a conception of his power to play on the feelings or men, of his humor, and pathos, and intense conviction, and rapidity in passing from one emotion to another, and will understand him.
I heard Rufus Choate a great many times. I heard nearly all the speeches given in Brown's Life; and I heard him a great many times at the Bar, both before juries and the full Court. He is the only advocate I ever heard who had the imperial power which would subdue an unwilling and hostile jury. His power over them seemed like the fascination of a bird by a snake. Of course, he couldn't do this with able Judges, although all Judges who listened to him would, I think, agree that he was as persuasive a reasoner as ever lived. But with inferior magistrates and juries, however intelligent, however determined they were in a made-up opinion, however on their guard against the charmer, he was almost irresistible. There are very few important cases recorded that Choate lost. Non supplex, sed magister aut dominus videretur esse judicum.
Choate's method was pure persuasion. He never appealed to base motives, nor tried to awake coarse prejudices or stormy passions. He indulged in no invective. His wit and sarcasm and ridicule amused the victim almost as much as it amused the bystander. He had the suaviloquentia which Cicero attributes to Cornelius. There was never a harsh note in his speech.
Latrantur enim jam quidam oratores, non loquuntur.
When he was confronted with some general rule, or some plain fact, he had a marvellous art of subtle distinction. He showed that his client, or witness, or proposition, belonged to a class of itself. He invested it with a distinct and intense personality. He held up his fact or his principle before the mind of the Court and the jury. He described and pictured it. He brought out in clear relief what distinguished it from any other fact or proposition whatever. If necessary, he would almost have made a jury, before he was through, think the Siamese twins did not look alike, and possibly that they never could have been born of the same parents.
He had a voice without any gruff or any shrill tones. It was like a sweet, yet powerful flute. He never strained it or seemed to exert it to its fullest capacity. I do not know any other public speaker whose style resembled his in the least. Perhaps Jeremy Taylor was his model, if he had any model. The phraseology with which he clothed some commonplace or mean thought or fact, when he was compelled to use commonplace arguments, or to tell some common story, kept his auditors ever alert and expectant. An Irishman, who had killed his wife, threw away the axe with which Choate claimed the deed was done, when he heard somebody coming. This, in Choate's language, was "the sudden and frantic ejaculation of the axe." Indeed his speech was a perpetual surprise. Whether you liked him or disliked him, you gave him your ears, erect and intent. He used manuscript a great deal, even in speaking to juries. When a trial was on, lasting days or weeks, he kept pen, ink, and paper at hand in his bedroom, and would often get up in the middle of the night to write down thoughts that came to him as he lay in bed. He was always careful to keep warm. It was said he prepared for a great jury argument by taking off eight great coats and drinking eight cups of green tea.
When I was a young lawyer in Worcester I had something to do before the Court sitting in the fourth story of the old stone court house in Boston. I finished my business and had just time to catch the train for home. As I came down the stairs I passed the door of the court-room where the United States Court was sitting. The thick wooden door was open, and the opening was closed by a door of thin leather stretched on a wooden frame. I pulled it open enough to look in, and there, within three feet of me, was Choate, addressing a jury in a case of marine insurance, where the defence was the unseaworthiness of the vessel. I had just time to hear this sentence, and shut the door and hurry to my train: "She went down the harbor, painted and perfidious—a coffin, but no ship."
I hear now, as if still in the eager throng, his speech in Faneuil Hall during the Mexican War. He demanded that we should bring back our soldiers to the line we claimed as our rightful boundary, and let Mexico go. He said we had done enough for glory, and that we had humiliated her enough.
"The Mexican maiden, as she sits with her lover among the orange-groves, will sing to her guitar the story of these times—'Ah, woe is me, Alhama,' for a thousand years to come."
Choate, like other good orators, and like some great poets, notably Wordsworth, created the taste which he satisfied. His dramatic action, his marvellous and strange vocabulary, his oriental imagination, his dressing the common and mean things of life with a poetic charm and romance, did not at once strike favorably the taste of his Yankee audiences. Webster and Everett seem to have appreciated him from the first. But he was, till he vindicated his title to be a great lawyer, rather a thorn in the flesh of Chief Justice Shaw, of whose consternation and amazement, caused by the strange figure that appeared in his court-room, many queer stories used to be told. But the young men and the people liked him.
"Non probantur haec senibus—saepe videbam cum invidentem tum etiam irascentem stomachantem Philippum—sed mirantur adulescentes multitudo movetur."
It was a curious sight to see on a jury twelve hard-headed and intelligent countrymen—farmers, town officers, trustees, men chosen by their neighbors to transact their important affairs—after an argument by some clear-headed lawyer for the defence, about some apparently not very doubtful transaction, who had brought them all to his way of thinking, and had warned them against the wiles of the charmer, when Choate rose to reply for the plaintiff—to see their look of confidence and disdain—"You needn't try your wiles upon me." The shoulder turned a little against the speaker—the averted eye—and then the change; first, the changed posture of the body; the slight opening of the mouth; then the look, first, of curiosity, and then of doubt, then of respect; the surrender of the eye to the eye of the great advocate; then the spell, the charm, the great enchantment—till at last, jury and audience were all swept away, and followed the conqueror captive in his triumphal march.
He gesticulated with his whole body. Wendell Phillips most irreverently as well as most unjustly compared him to a monkey in convulsions. His bowings down and straightening himself again were spoken of by another critic, not unfriendly, as opening and shutting like a jack-knife. His curly black hairs seemed each to have a separate life of its own. His eyes shone like coals of fire. There is a passage of Everett's which well describes Choate, and is also one of the very best examples of Everett, who, with all his fertility of original genius, borrowed so much, and so enriched and improved everything that he borrowed. Cicero said of Antonius:
"Omnia veniebant Antonio in mentem; eaque suo quaeque loco, ubi pluimum proficere et valere possent, ut ab imperatore equites pedites levis armatura, sic ab illo in maxume opportunis orationis partibus conlocabantur."
Now see what Everett does with this thought in his eulogy, spoken in Faneuil Hall, the week after Choate's death:
"He is sometimes satisfied, in concise epigrammatic clauses, to skirmish with his light troops, and drive in the enemy's outposts. It is only on fitting occasions, when great principles are to be vindicated, and solemn truths told, when some moral or political Waterloo or Solferino is to be fought, that he puts on the entire panoply of his gorgeous rhetoric. It is then that his majestic sentences swell to the dimensions of his majestic thought; then it is that we hear afar off the awful roar of his rifled ordnance; and when he has stormed the heights, and broken the centre, and trampled the squares, and turned the staggering wings of the adversary, that he sounds his imperial clarion along the whole line of battle, and moves forward with all his hosts, in one overwhelming charge."
One of the most remarkable advocates of my day was Sidney Bartlett. He seldom addressed juries, and almost never public assemblies. He was a partner of Chief Justice Shaw before 1830. He argued cases before the Supreme Court of the United States and before the Supreme Court of Massachusetts after he was ninety. He cared for no other audience. He had a marvellous compactness of speech, and a marvellous sagacity in seeing the turning-point of a great question. He found the place where the roads diverged, got the Court's face set in the right direction, and then stopped. He would argue in ten or fifteen minutes a point where some powerful antagonist like Curtis or Choate would take hours to reply. I once told him that his method of argument was to that of ordinary lawyers like logarithms to ordinary mathematics. He seemed pleased with the compliment, and said, "Yes, I know I argue over their heads. The Chief Justice told me he wished I would talk a little longer." I do not know that Bartlett ought to be reckoned among orators. But he had a great power of convincing, and giving his intellectual delight to minds capable of appreciating his profound and inexorable logic.
Edward Everett seems to me, on the whole, our best example of the orator, pure and simple. Webster was a great statesman, a great lawyer, a great advocate, a great public teacher. To all these his matchless oratory was but an instrument and incident.
Choate was a great winner of cases, and as relaxation he gave, in the brief vacations of an overworked professional life (he once defined a lawyer's vacation as the time after he has put a question to a witness while he is waiting for an answer), a few wonderful literary and historical addresses. He gave a brief period of brilliant but most unwilling service in each House of Congress. He made some powerful political speeches to popular audiences. But his heart was always in the court-house. No gambler ever hankered for the feverish delight of the gaming table as Choate did for that absorbing game, half chance, half skill, where twelve human dice must all turn up together one way, or there be no victory.
But Everett is always the orator. He was a clergyman a little while. He was a Greek professor a little while. He was a College President a little while. He was a Minister to England a little while. He was Representative in Congress and Senator. He was Governor of the Commonwealth. In these places he did good service enough to make a high reputation for any other man. Little of these things is remembered now. He was above all things—I am tempted to say, above all men—the foremost American orator in one class.
There is one function of the orator peculiar to our country, and almost unknown elsewhere. That is the giving utterance to the emotion of the people, whether of joy or sorrow, on the occasions when its soul is deeply stirred—when some great man dies, or there is a great victory or defeat, or some notable anniversary is celebrated. This office was filled by other men, on some few occasions by Daniel Webster himself, but by no man better than by Everett. A Town, or City, or State is very human. In sorrow it must utter its cry of pain; in victory, its note of triumph. As events pass, it must pronounce its judgement. Its constant purpose must be fixed and made more steadfast by expression. It must give voice to its love and its approbation and its condemnation. It must register the high and low water mark of its tide, its rising and its sinking in heat and cold. This office Edward Everett, for nearly fifty years, performed for Massachusetts and for the whole country. In his orations is preserved and recorded everything of the emotion of the great hours of our people's history. The camera of his delicate photography has preserved for future generations what passed in the soul of his own in the times that tried the souls of men.
I do not know where he got his exquisite elocution. He went abroad in his youth, and there were good trainers abroad, then. He must have studied thoroughly the speeches of Cicero and the Greek orators. Many casual phrases in his works, besides many quotations, show his familiarity with Cicero's writing on oratory.
If you would get some faint, far-off conception of him, first look at the best bust or picture of Everett you can find. Imagine the figure with its every movement gentle and graceful. The head and face are suggestive of Greek sculpture. This person sits on the platform with every expression discharged from the face, looking like a plaster image when the artist has just begun his model, before any character or intelligence has been put into it. You think him the only person in the audience who takes no interest whatever in what is going on, and certainly that he expects to have nothing to do with it himself. He is introduced. He comes forward quietly and gracefully. There is a slight smile of recognition of the welcoming applause. The opening sentences are spoken in a soft—I had almost said, a caressing voice, though still a little cold. I suppose it would be called a tenor voice. There was nothing in the least unmanly about Edward Everett. Yet if some woman had spoken in the same tones, you would have not thought them unwomanly.
Illa tamquam cycnea fuit divini hominis vox et oratio.
He has found somewhere in the vast storehouse of his knowledge a transaction exactly like the present, or exactly in contrast with it, or some sentiment of poet or orator which just fits the present occasion. If it be new to his audience, he adds to it a newer delight still by his matchless skill as a narrator— a skill almost the rarest of all talents among public speakers. If it be commonplace and hackneyed he makes it fresh and pleasant by giving in detail the circumstances when it was first uttered, or describes some occasion when some orator has applied it before; or calls attention to its very triteness as giving it added authority. If he wish to express his agreement with the last speaker and "say ditto to Mr. Burke," he tells you when that was said, what was the occasion, and gives you the name of Mr. Kruger, who stood for the representation of Bristol with Burke.
Mr. Everett's stores were inexhaustible. If any speaker have to get ready in a hurry for a great occasion, let him look through the index of the four volumes of Everett's speeches, and he will find matter enough, not only to stimulate his own thought and set its currents running, but to illustrate and adorn what he will say.
But pretty soon the orator rises into a higher plane. Some lofty sentiment, some stirring incident, some patriotic emotion, some play of fancy or wit comes from the brain or heart of the speaker. The audience is hushed to silence. Perhaps a little mist begins to gather in their eyes. There is now an accent of emotion in the voice, though still soft and gentle. The Greek statue begins to move. There is life in the limbs. There has been a lamp kindled somewhere behind the clear and transparent blue eyes. The flexible muscles of the face have come to life now. Still there is no jar or disorder. The touch upon the nerves of the audience is like that of a gentle nurse. The atmosphere is that of a May morning. There is no perfume but that of roses and lilies. But still, gently at first, the warmer feelings are kindled in the hearts of the speaker and hearers. The frame of the speaker is transfigured. The trembling hands are lifted high in the air. The rich, sweet voice fills the vast audience chamber with its resonant tones. At last, the bugle, the trumpet, the imperial clarion rings out full and clear, and the vast audience is transported as to another world—I had almost said to a seventh heaven. Read the welcome to Lafayette or the close of the matchless eulogy on that illustrious object of the people's love. Read the close of the oration on Washington. Read the contrast of Washington and Marlborough. Read the beautiful passage where, just before the ocean cable was laid, the rich fancy of the speaker describes—
"The thoughts that we think up here on the earth's surface in the cheerful light of day—clothing ourselves with elemental sparks, and shooting with fiery speed in a moment, in the twinkling of an eye, from hemisphere to hemisphere, far down among the uncouth monsters that wallow in the nether seas, along the wreck-paved floor, thorough the oozy dungeons of the rayless deep; the last intelligence of the crops, whose dancing tassels will in a few months be coquetting with the west wind on those boundless prairies, flashing along the slimy decks of old sunken galleons, which have been rotting for ages; messages of friendship and love, from warm, living bosoms, burn over the cold green bones of men and women, whose hearts, once as fond as ours, burst as the eternal gulfs closed and roared over them, centuries ago."
Read the passage in the eulogy on Choate where he describes him arming himself in the entire panoply of his gorgeous rhetoric—and you will get some far-away conception of the power of this magician.
One thing especially distinguishes our modern orator from the writer in the closet, where he writes solely for his readers, or where he has prepared his speeches beforehand—that is, the influence of the audience upon him. There is nothing like it as a stimulant to every faculty, not only imagination, and fancy, and reason, but especially, as every experienced speaker knows, memory also. Everything needed seems to come out from the secret storehouses of the mind, even the things that have lain there forgotten, rusting and unused. Mr. Everett describes this in a masterly passage in his Life of Webster. Gladstone states it in a few fine sentences:
"The work of the orator, from its very inception," he says, "is inextricably mixed up with practice. It is cast in the mould offered to him by the mind of his hearers. It is an influence principally received from his audience (so to speak) in vapor, which he pours back upon them in a flood. The sympathy and concurrence of his time is, with his own mind, joint parent of his work. He cannot follow nor frame ideals; his choice is to be what his age would have him, what it requires in order to be moved by him, or else not to be at all."
I heard six of Kossuth's very best speeches. He was a marvellous orator. He seemed to have mastered the whole vocabulary of English speech, and to have a rare gift of choosing words that accurately expressed his meaning, and he used so to fashion his sentences that they were melodious and delightful to the ear. That is one great gift or oratory, as it is of poetry, or indeed of a good prose style. Why it is that two words or phrases which mean precisely the same thing to the intellect, have so different an effect on the emotions, no man can tell. To understand it, is to know the secret not only of reaching the heart, but frequently of convincing the understanding of man.
Kossuth made a great many speeches, sometimes five or six in a day. He could have had no preparation but the few minutes which he could snatch while waiting for dinner at some house where he was a guest, or late at night, after a hard day's work. But his speeches were gems. They were beautiful in substance and in manner. He was ready for every occasion. When the speaker who welcomed him at Roxbury told him that Roxbury contained no historic spot that would interest a stranger, Kossuth at once answered, "You forget that it is the birthplace of Warren." When old Josiah Quincy, then past eighty, said at a Legislative banquet that he had come to the time—"when the keepers of the house shall tremble, and the strong men shall bow themselves, and the grinders cease because they are few, and those that look out of the windows be darkened, and they shall be afraid of that which is high, and fears shall be in the way," Kossuth interrupted him, "Ah! but that was of ordinary men."
I was a member of the Legislature when Kossuth visited Boston. I heard his address to the House and to the Senate, his reply to the Governor's welcome. I heard him again at the Legislative banquet in Faneuil Hall, and twice in Worcester—on the Common in the afternoon, and at the City Hall in the evening. I shook hands with him and perhaps exchanged a word or two, but of that I have no memory. Afterward I visited him with my wife at Turin in 1892, when he was a few months past ninety. He received me with great cordiality. I spent two hours with him and his sister, Madam Ruttkay. They both expressed great pleasure with the visit, and Madam Ruttkay kissed Mrs. Hoar affectionately when we took leave. Kossuth's beautiful English periods were as beautiful as they were forty years before, at the time of his famous pilgrimage through the United States. His whole conversation related to the destiny of his beloved Hungary. He spoke with great dignity of his own share in the public events which affected his country. There was nothing of arrogance or vanity in his claim for himself, yet in speaking of Francis Joseph, he assumed unconsciously the tone of a superior. He maintained that constitutional liberty could never be permanent where two countries with separate legislatures were under one sovereign. He said the sovereign would always be able to use the military and civil power of one to accomplish his designs against the liberty of the other. The opinion of Kossuth on such a question is entitled to the greatest deference. But I incline to the belief that, while undoubtedly there may be great truth in the opinion, the spirit of liberty will overcome that danger. Hungary and Hungary's chief city seem rapidly to be asserting control in their own affairs and an influence in the Austro-Hungary Empire which no monarch will be able to withstand, and which it is quite likely the royal family will not desire to withstand. In these days monarchs are learning the love of liberty, and I believe in most cases to-day the reigning sovereigns of Europe are eager to promote constitutional government, and prefer the title of Liberator to that of Despot.
I have heard Wendell Phillips speak a great many times. I do not include him in this notice, because, if I did, I ought to defend my estimate of him at considerable length, and to justify it by ample quotation. I think him entitled to the very highest rank as an orator. I do not estimate his moral character highly. I think he exerted very little influence on his generation, and that the influence he did exert was in the main pernicious. I have had copied everything he said, from the time he made his first speech, so far as it is found in the newspapers, and have the volumes in which his speeches are collected. I never had occasion to complain of him on my own account. So far as I know and believe, he had the kindliest feeling for me until his death, and esteemed my public service much more highly than it deserved. But he bitterly and unjustly attacked men whom I loved and honored under circumstances which make it impossible for me to believe that his conduct was consistent with common honesty. He seemed never to care for the soundness of his opinion before he uttered it, or for the truth of the fact before he said it, if only he could produce a rhetorical effect. He seemed to like to defame men whom the people loved and honored. Toward the latter part of his life, he seemed to get desperate. If he failed to make an impression by argument, he took to invective. If vinegar would not answer he resorted to cayenne pepper. If that failed, he tried to throw vitriol in the eyes of the men whom he hated. His remedy for slavery was to destroy the country, and to leave the slave to the unchecked will of the South. During Lincoln's great trial, he attacked and vilified him. At the time when nearly every household in the North was mourning for its dead, he tried to persuade the people that Lincoln did not mean to put down the Rebellion. He never gave the people wise counsel, and rarely told them the honest truth. He rarely gave his homage to anybody. When he did, it was to bad men, and not to good men.
There can be no worse influence upon the youth of the Republic than that which shall induce them to approve sentiments, not because they are true, but only because they are eloquently said.
I have given the best study I could to the grave evil of the accumulation in the country of vast fortunes in single hands, or of vast properties in the hands of great corporations— popularly spoken of as trusts—whose powers are wielded by one, or a few persons. This is the most important question before the American people demanding solution in the immediate future. A great many remedies have been proposed, some with sincerity and some, I am afraid, merely for partisan ends. The difficulty is increased by the fact that many of the evils caused by trusts, or apprehended from them, can only be cured by the action of the States, but cannot be reached by Congress, which can only deal with international or interstate commerce. As long ago as 1890 the people were becoming alarmed about this matter. But the evil has increased rapidly during the last twelve years. It is said that one man in this country has acquired a fortune of more than a thousand million dollars by getting an advantage over other producers or dealers in a great necessary of life in the rates at which the railroads transport his goods to market.
In 1890 a bill was passed which was called the Sherman Act, for no other reason I can think of except that Mr. Sherman had nothing to do with framing it whatever. He introduced a bill and reported it from the Finance Committee providing that whenever a trust, as it was called, dealt with an article protected by the tariff, the article should be put on the free list. This was a crude, imperfect, and unjust provision. It let in goods made abroad by a foreign trust to compete with the honest domestic manufacturer. If there happened to be an industry employing thousands or hundreds of thousands of workmen, in which thousands of millions of American capital was invested, and a few persons got up a trust—perhaps importers, for the very purpose of breaking down the American manufacturer— and made the article to a very small extent, all honest manufacturers would be deprived of their protection.
Mr. Sherman's bill found little favor with the Senate. It was referred to the Judiciary Committee of which I was then a member. I drew as an amendment the present bill which I presented to the Committee. There was a good deal of opposition to it in the Committee. Nearly every member had a plan of his own. But at last the Committee came to my view and reported the law of 1890. The House disagreed to our bill and the matter went to a Conference Committee, of which Mr. Edmunds, the Chairman of the Committee, and I, as the member of the Committee who was the author of the bill, were members. The House finally came to our view.
It was expected that the Court, in administering that law, would confine its operation to cases which are contrary to the policy of the law, treating the words "agreements in restraint of trade," as having a technical meaning, such as they are supposed to have in England. The Supreme Court of the United States went in this particular farther than was expected. In one case it held that "the bill comprehended every scheme that might be devised to restrain trade or commerce among the several States or with foreign nations." From this opinion several of the Court, including Mr. Justice Gray, dissented. It has not been carried to its full extent since, and I think will never be held to prohibit the lawful and harmless combinations which have been permitted in this country and in England without complaint, like contracts of partnership which are usually considered harmless. We thought it was best to use this general phrase which, as we thought, had an accepted and well-known meaning in the English law, and then after it had been construed by the Court, and a body of decisions had grown up under the law, Congress would be able to make such further amendments as might be found by experience necessary.
The statute has worked very well indeed, although the Court by one majority and against the very earnest and emphatic dissent of some of its greatest lawyers, declined to give a technical meaning to the phrase, "in restraint of trade." But the operation of the statute has been healthy. The Attorney- General has recently given an account of suits in equity by which he had destroyed a good many vast combinations, including a combination of the six largest meat-packing concerns in the country; a combination of railroads which had been restrained from making any rebate or granting any preference whatever to any shipper; and a pooling arrangement between the Southern railroads which denied the right of the shippers interested in the cotton product in the South to prescribe the route over which their goods should pass. He has also brought a suit in equity to prevent the operation of a proposed merger of sundry transcontinental railroads, thereby breaking up a monopoly which affected the whole freight and passenger traffic of the Northwest.
The public uneasiness, however, still continued. The matter was very much discussed in the campaign for electing members of the House of Representatives in the autumn of 1902.
I made two or three careful speeches on the subject in Massachusetts, in which I pointed out that the existing law, in general, was likely to be sufficient. I claimed, however, further, that Congress had, in my opinion, the power of controlling the whole matter, by reason of its right to prescribe terms on which any corporation, created by State authority or its own, should engage in interstate or international commerce. It might provide as a condition for such traffic by a corporation, that its officers or members should put on file an obligation to be personally liable for the debts of the concern in case the conditions prescribed by Congress were not complied with.
The House of Representatives passed a very stringent bill known as the Littlefield Bill, which was amended by the Judiciary Committee, of which I was the Chairman, by adding the provisions of a bill which I had, myself, previously introduced, based on the suggestions above stated.
But there was a general feeling that the amendments to the existing law proposed by the Administration were all that should be made at present. These consisted in providing severe penalties for granting rebates by railroads to favored shippers; for having suits under the existing law brought forward for prompt decision, and for giving the new Department of Commerce large powers for the examination of the conduct of the business of such corporations, and to compel them to make such returns as should be thought desirable.
I should have preferred to have the bill I reported brought forward and discussed in the Senate, although there was obviously no time, with the pressure of other business, to get it through. But it was thought best by a majority of the Republicans not to take it up. Some of them thought it was likely, if passed, to have a very serious and perhaps disastrous effect on the country. So far as I know, nobody in either House of Congress or in the press has pointed out why such a result would be likely to follow.
On the whole I was very well satisfied. The interests concerned are vast. A rash or unskilful remedy might bring infinite trouble or ruin to lawful business. The work of restraining the trusts is going on very well under the law of 1890. It is a matter which must be discussed and considered by the American people for a great many years to come, and the evils from the trusts at present are rather in anticipation than in reality. So I am very well content, for the present, with what has been accomplished.
The Worcester Bar, when I came to it, was much like a class of boys in college. There was rivalry and sharp practice in some cases, and roughness of speech toward each other and toward witnesses and parties. But in the main, the lawyers stood by one another and were ready to help each other in trouble, and the lawyer's best and most trustworthy friends were his associates. The Judge and the jurymen, and the lawyers from out of town used to come into Worcester and stay at the old Sykes or Thomas Tavern, opposite the court-house, and at another one known as the United States Hotel, further south. The former was kept for a good many years by an old fellow named Sykes. He was a singular-looking person—a large head, stout body, rather protuberant belly, and short curved legs and very long arms. He had large heavy eyebrows, a wide mouth and a curved nose and sallow complexion looking a good deal like the caricatures of the Jewish countenance in the comic newspapers. He had two sons who looked very much like him and seemed about as old as their father. One day the three were standing in front of his tavern when a countryman came along who undertook to stop with his load at the front door of the tavern. Sykes was standing there with his two sons, one on each side of him. He did not like to have the countryman stop his load in that spot and called out to him rather roughly, "Move along." The fellow surveyed the group for a moment with an amused look and complied with the order, but shouted out to the old man: "Wal, this is the fust time I ever saw three Jacks of Spades in one pack."
The Court sat till six o'clock and often far into the evening, and began at half-past eight or nine. So there was no chance for the country lawyers to go home at night. There was great fun at these old taverns in the evening and at meal times. They insisted generally, like Mrs. Battles in whist, on the rigor of the game, and the lawyer had to look sharp after his pleadings or he found himself tripped up. The parties could not be witnesses, nor could any person interested in the result of the trial. So many a good case, and many a good defence failed for want of the legal evidence to make it out. But the whole Bar and the public seemed to take an interest in important trials. People came in from the country round with their covered wagons, simply for the pleasure of attending Court and seeing the champions contend with each other. The lawyers who were not engaged in the case were always ready to help those who were with advice and suggestion. It used to be expected that members of the Bar would be in the court-house hearing the trials even if they were not engaged in them. That was always an excuse for being absent from the office, and their clients sought them at the court-house for consultation. I cannot but think that the listening to the trial and argument of causes by skilful advocates was a better law school than any we have now, and that our young men, especially in the large cities, fail to become good advocates and to learn the art of putting in a case, and of examining and cross-examining witnesses, for want of a constant and faithful attendance on the courts.
In those old times, our old lawyers, if Charles Lamb had known them and should paint them, would make a set of portraits as interesting as his old Benchers of the Inner Temple. Old Calvin Willard, many years sheriff of Worcester, would have delighted Elia. He did not keep the wig or the queue or the small-clothes of our great-grandfathers, but he had their formal and ceremonial manners in perfection. It was like a great State ceremonial to meet him and shake hands with him. He paused for a moment, surveyed you carefully to be sure of the person, took a little time for reflection to be sure there was nothing in the act to compromise his dignity, and then slowly held out his hand. But the grasp was a warm one, and the ceremony and the hand-shake conveyed his cordial respect and warmth of regard. He always reminded me of the Englishman in Crabbe's "Tales" who, I think, may have been his kinsman.
The wish that Roman necks in one were foundThat he who formed the wish might deal the wound,This man had never heard. But of the kindIs the desire which rises in his mind.He'd have all English hands, for further heCannot conceive extends our charity,All but his own, in one right hand to grow;And then what hearty shake would he bestow.
Mr. Willard was once counsel before a magistrate in a case in which he took much interest. A rough, coarse country lawyer was on the other side. When Willard stated some legal proposition, his adversary said: "I will bet you five dollars that ain't law." "Sir," said Mr. Willard, drawing himself up to his full height, with the great solemnity of tone of which he was master: "Sir, I do not permit myself to make the laws of my country the subject of a bet."
Another of the old characters who came down to my time from the older generation was Samuel M. Burnside. He was a man of considerable wealth and lived in a generous fashion, dispensing an ample hospitality at his handsome mansion, still standing in Worcester. He was a good black-letter lawyer, though without much gift of influencing juries or arguing questions of law to the Court. He was a good Latin scholar, very fond of Horace and Virgil, and used to be on the committees to examine the students at Harvard, rather disturbing the boys with his somewhat pedantic questioning. He was very nearsighted, and, it is said, once seized the tail of a cow which passed near him in the street and hurried forward, supposing some woman had gone by and said, "Madam, you are dropping your tippet."
One of the most interesting characters among the elders of the Worcester Bar was old Rejoice Newton. He was a man of excellent judgment, wisdom, integrity and law learning enough to make him a safe guide to his clients in their important transactions. He was a most prosaic person, without sentiment, without much knowledge of literature, and absolutely without humor. He was born in Northfield near the banks of the Connecticut River and preserved to the time of his death his love of rural scenes and of farming. He had an excellent farm a mile or two out of town, where he spent all the time he could get from his professional duties. He was associated with Chief Justice Shaw in some important cases, and always thought that it was due to his recommendation that Governor Lincoln appointed the Chief Justice—a suggestion which Governor Lincoln used to repel with great indignation. The Governor was also a good farmer, especially proud of his cattle. Each of them liked to brag of their crops and especially of the produce of their respective dairies. Governor Lincoln was once discoursing to Devens and me, in our office, of a wonderful cow of his which, beside raising an enormous calf, had produced the cream for a great quantity of butter. Mr. Devens said: "Why, that beats Major Newton's cow, that gave for months at a time some fifteen or eighteen quarts at a milking." "If Brother Newton hears of my cow," said Governor Lincoln, "he will at once double the number of quarts." The old Major was quite fond of telling stories, of which the strong points were not apt to suffer in his narration. One Fourth of July, when he had got to be an old man, he came down street and met a brother member of the Bar, who took him up into the room of the Worcester Light Infantry, a Company of which the Major's deceased son had long ago been the Captain. The members of the Company were spending the Fourth with a bowl of punch and other refreshments. The Major was introduced and was received with great cordiality, and my friend left him there. The next day my friend was going down street and met the Captain of the Light Infantry, who said: "That was a very remarkable old gentleman you brought into our room yesterday. He stayed there all the forenoon, drinking punch and telling stories. He distinctly remembered General Washington. He went home to dinner, came back after dinner, drank some more punch, and remembered Christopher Columbus."
The old Major was once addressing the Supreme Court and maintained a doctrine which did not commend itself to Chief Justice Shaw. The Chief Justice interposed: "Brother Newton, what is the use of arguing that? We have held otherwise in such a case (citing it) and again and again since." The Major paused, drew his spectacles slowly off his nose, and said to the Court with great seriousness: "May it please your Honors, I have a great respect for the opinions of this Court, except in some very gross cases."
A man by the name of Lysander Spooner, whose misfortune it was to be a good deal in advance of his age, the author of a very clever pamphlet maintaining the unconstitutionality of slavery, also published some papers attacking the authenticity of Christian miracles. In these days of Bob Ingersoll such views would be met with entire toleration, but they shocked Major Newton exceedingly, as they did most persons of his time. Spooner studied for the Bar and applied to be admitted. He was able to pass an examination. But the Major, asamicus curiae,addressed the Court and insisted that Spooner was not a man of proper character, and affirmed in support of his assertion that he was the author of some blasphemous attacks on Christianity. The result was that Spooner's application was denied. The Court adjourned for dinner. It was the day of the calling of the docket, and just before the Judge came in in the afternoon, the whole Bar of Worcester County were assembled, filling the room. The Major sat in a seat near one of the doors. He had dined pretty heavily, the day was hot and the Major was sleepy. He tipped back a little in his chair, his head fell back between his shoulders and his mouth opened, with his nose pointed toward the zenith. Just then Spooner came in. As he passed by the Major, the temptation was irresistible. He seized the venerable nose of the old patriarch between his thumb and finger, and gave it a vigorous twist. The Major was awakened and sprang to his feet, and in a moment realized what had happened. He was, as may be well supposed, intensely indignant. No Major in the militia could submit to such an insult. He seized his chair and hurled it at the head of the offender, but missed, and the bystanders interposed before he was able to inflict the deserved punishment.
The Major lived to a good old age. His mental faculties became somewhat impaired before he died. He had great respect for his excellent son-in-law, Colonel Wetherell, who was on Governor Andrew's staff during the War, and thought that anything which ought to be accomplished could be accomplished by the influence of the Colonel. Somebody told him during the hardest part of the war that we ought to bend all our energies to the capture of Richmond. If Richmond were to fall the rebellion would be easily put down. "You are quite right, sir," said the Major. "It ought to be done, and I will speak to Colonel Wetherell about it." But everybody who knew the worthy Major, unless it were some offender against justice, or some person against whose wrong-doing he had been the shield and protector to a client, liked the kindly, honest and sturdy old man. He was District Attorney for the district which included Worcester County—an office then and ever since held by admirable lawyers. He prided himself on the fact that he never drew an indictment which was not sustained by the Court, if it were questioned. He liked to recite his old triumphs. He especially plumed himself on his sagacity in dealing with one case which came before him. A complaint was made of a book well known at that time, the memoirs of a dissolute woman, which was full of indecency, but in which there could not be found a single, separate indecent sentence or word. The Major was at a loss for some time what to do in indicting it. If he set forth the whole book, it would give it an immortality on the records of the court which perhaps would be worse for the public morals than the original publication. Finally he averred in the indictment that the defendant had published a book so indecent that it was unfit to be spread on the records of the court. The question went up to the Supreme Court and the indictment was held good. It was difficult for the Court or the jury to find that such a book was fit to be spread on the records of the Court, and the Major secured his victory and convicted his criminal.
One of the bright young lawyers who came to the Bar a few years after I did, was Appleton Dadmun. He died of consumption after a brief but very successful career. He was the very type and embodiment of the Yankee countryman in his excellencies and his defects and in his fashion of speech and behavior. He was a graduate of Amherst College. The only evidence I ever discovered of his classical education was his habit of using the Greek double negative in ordinary English speech. He used to employ me almost always as senior when he had a case to argue to a jury, or an important law argument in Court. He would put off the engagement until just as the case was coming on. He used to intend to try his cases himself. But his heart, at the last moment, would fail him. He was as anxious about his clients' cases as if they were his own. He was exceedingly negligent about his pleadings and negligent in the matter of being prepared with the necessary formal proofs of facts which were really not doubtful but which were put in issue by the pleadings. When I was retained my first duty was to prepare an amendment of the declaration or the answer or plea, or, perhaps, to see whether he had got the attesting witness to prove some signature. But when we had got past all that I used to find that he had prepared his evidence with reference to what was the pinch of the case of what was likely to be finally the doubtful point in the mind of court or jury with infinite sagacity and skill. I have rarely known a better judge of the effect of evidence on the mind of ordinary juries. He took his clients into his affection as if they had been his own brethren or children, and seemed always to hate to be compelled to make any charge for his services, however successful.
He had a pleasant wit. On one occasion a member of the bar named Holbrook, who was not a bad fellow, but had, like the rest of the world, some peccadilloes to repent of, came into the Court-house one morning just as the Court was coming in where the lawyers were gathered. Much excited, he said he was riding into Worcester in a chaise from the neighboring town where he spent his nights in the summer. His horse had run away and tore at a terrible rate down Main Street, swinging the chaise from one side to the other as he ran, and breaking some part of the harness and perhaps one of the shafts. But at last he had contrived to crawl out through the window behind in the chaise top and hold on to the cross-bar. Letting himself down just as the chaise had got to the extremity of its sway from one side to another, he let go and escaped without injury. But, he said, it was a terrible five minutes. Every action of his life seemed to rush through his memory with the swiftness of a torrent. "You ought to have very heavy damages, sir," said Mr. Dadmun.
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 Saturday, 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 Saturday 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 nobody 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 assistance. 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 Massachusetts 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 Massachusetts. 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 passed 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 class 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 associate. 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 assumed heir."
"Very well," Devens said, "an assumed 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 associate. 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 passed 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 repetition 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 Massachusetts law, the land may be levied upon as the property of the debtor, notwithstanding the ostensible title 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 title 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 Massachusetts 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 Hoar 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 passing 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 title 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 god Terminus who watched over boundaries, and after quite an eloquent description, he told the jury: "Brother Hoar always seems to me when he makes this argument, which I have heard a good many times before, to think he is the god 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 theSpectator."
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 Hoar, I wish you would not put words into the witness's mouth."