CHAPTER IX LIFE IN WORCESTER
After leaving college I studied for a year in my brother's office in Concord, then for two years at the Harvard Law School, and afterward for four months in the office of Judge Benjamin F. Thomas in Worcester. I was led to choose Worcester as a place to live in chiefly for the reason that that city and county were the stronghold of the new Anti-Slavery Party, to which cause I was devoted with all my heart and soul. I have never regretted the choice, and have spent my life there, except when in Washington, for considerably more than half a century. In that time Worcester has grown from a city of fifteen thousand to a city of one hundred and thirty thousand people. I can conceive of no life more delightful for a man of public spirit than to belong to a community like that which combines the youth and vigor and ambition of a western city with the refinement and conveniences, and the pride in a noble history, of an old American community. It is a delight to see it grow and a greater delight to help it grow,—to help improve its schools, and found its Public Library, and help lay the foundations of great institutions of learning. Worcester had an admirable Bar, admirable clergymen, and physicians of great skill and eminence. Among her clergymen was Edward Everett Hale, then in early youth, but already famous as a preacher throughout the country. There was no Unitarian pulpit where he was not gladly welcomed. So his congregation here, by way of exchange, heard the most famous pulpit orators of the country.
Among the physicians was Dr. Joseph Sargent, a man then without a superior in his profession in Massachusetts. The friendship I formed with him in 1849 lasted till his death, more than forty years afterward.
The mechanics of Worcester were unsurpassed for their ingenuity anywhere on the face of the earth. Worcester was the centre and home of invention. Within a circle of twelve miles radius was the home of Blanchard, the inventor of the machine for turning irregular forms; of Elias Howe, the inventor of the sewing machine; of Eli Whitney, the inventor of the cotton gin, which doubled the value of every acre of cotton-producing land in the country; of Erastus B. Bigelow, the inventor of the carpet machine; of Hawes, the inventor of the envelope machine; of Crompton and Knowles, the creators and perfectors of the modern loom; of Ruggles, Nourse and Mason, in whose establishment the modern plow was brought to perfection, and a great variety of other agricultural implements invented and improved. There were many other men whose inventive genius and public usefulness were entitled to rank with these. The first house-warming furnace was introduced here, and the second cupola furnace was set up near by.
These inventors and mechanics were all men of great public spirit, proud of Worcester, of its great achievements, and its great hope. They got rich rapidly. They and their households made social life most delightful. There was little pride of family or wealth. Men and women were welcomed everywhere on their merits.
The City of Worcester was the heart of one of the foremost agricultural counties in the country. The county stood fourth among American counties in the value of its agricultural products, and the proportion of the value of the product to the value of the lands. It was the spot on the face of the earth where labor got the largest proportion of the joint product of labor and capital. The farmers made an excellent living. They made excellent legislators, excellent town officers, excellent jurors, and excellent clients. I have been at some time or other in my life counsel for every one of the fifty-two towns in Worcester County. I had a large clientage among the farmers. In the intimacy of that relation I got a knowledge of the inmost soul and heart of a class of men who I think constituted what was best in American citizenship, a knowledge which has been a great educational advantage to me and valuable in a thousand ways in my public and professional life.
From the first of December, 1849, until the fourth of March, 1869, I was diligently employed in my profession, save for a single year's service in each house of the Massachusetts Legislature. But during all that time I kept a very zealous interest in political affairs. I was Chairman of the County Committee for several years, made political speeches occasionally, presided at political meetings, always attended the caucus and was in full sympathy and constant communication with the Free Soil and Republican leaders.
The Worcester Bar in my time afforded a delightful companionship. It was like a college class in the old days. My best and most cordial friends were the men whom I was constantly encountering in the courts. The leaders of the Bar when I was admitted to it,—Charles Allen, Emory Washburn, Pliny Merrick, Benjamin F. Thomas, Peter C. Bacon,—would have been great leaders at any Bar in the United States, or on any circuit in England. Study at a law school is invaluable to the youth if he is to rise in his profession; but there is no law school like a court-house when such men are conducting trials. The difficult art of cross-examination, the more difficult art of refraining from cross-examination, can only be learned by watching men who are skilled in the active conduct of trials.
The Supreme Court of Massachusetts at that day with Chief Justice Shaw at its head was without an equal in the country and not surpassed by the Supreme Court of the United States itself. I can conceive of no life more delightful than that of a lawyer in good health, and with good capacity, and with a sufficient clientage, spent in that manly emulation and honorable companionship.
The habit of giving dissenting opinions which has become so common both in the Supreme Court of the United States and of late in the Massachusetts Supreme Court did not then exist. If there were a division on an important question of law the statement of the result was usually "a majority of the Court is of opinion." That was all. I do not believe any court can long retain public confidence and respect when nearly all its opinions in important matters are accompanied by a powerful attack on the soundness of the opinion and the correctness of the judgment from the Bench itself. The Reporter of the Commonwealth of Massachusetts is, I believe, authorized to report the decisions of the court more or less at length at his discretion. If he would exercise that discretion by an absolute refusal to print dissenting opinions, except in a few very great and exceptional cases, he would have the thanks of the profession. It may be harder to put a stop to the practice in the Supreme Court of the United States. That will have to be done, if at all, by the good sense of the Judges. The recent opinions of the Court in what are known as the Insular Cases have shocked the country and greatly diminished the weight and authority of the tribunal. This was not because of public disapproval of the opinion of the Court. It was because upon one of the greatest questions of Constitutional law and Constitutional liberty that ever went to judgment, there could be found no single reason for the decision of the Court strong enough to convince any two judges.
The fact that I have been for nearly thirty-five years in public life, and likely to be, if I live, in public life a few years longer, is an instance of how—
The best laid schemes o' mice and men
Gang aft a-gley.
Down to the time I was admitted to the Bar, and indeed for a year later, my dream and highest ambition were to spend my life as what is called an office lawyer, making deeds and giving advice in small transactions. I supposed I was absolutely without capacity for public speaking. I expected never to be married; perhaps to earn twelve or fifteen hundred dollars a year, which would enable me to have a room of my own in some quiet house, and to earn enough to collect rare books that could be had without much cost. I can honestly say with George Herbert: "I protest and I vow I even study thrift, and yet I am scarce able, with much ado, to make one half year's allowance shake hands with the other. And yet if a book of four or five shillings come in my way, I buy it, though I fast for it; yea, sometimes of ten shillings."
But I happened one night in the autumn of 1850 to be at a great mass meeting in the City Hall, at Worcester, which Charles Allen was expected to address. It was the year of the Compromise Measures, including the Fugitive Slave Law, and of Daniel Webster's 7th of March speech. Judge Allen, as he was somewhat apt to do, came in late. A vast audience had gathered and were waiting. Nobody seemed ready to speak. Somebody started the cry, "Hoar! Hoar!" My father and brother were known as leaders in the Free Soil Party, and that I suppose made somebody call on me. I got up in my place in the middle of the hall in great confusion. There were shouts of "platform," "platform." I made my way to the platform, hoping only to make my excuses and get off without being detected. But the people were disposed to be good-natured, and liked what I said. Dr. Stone, the famous stenographic reporter, was present and took it down. It was printed in the Free Soil papers, and from that time I was in considerable demand as a public speaker. The coalition between the Free Soilers and Democrats carried the State of Massachusetts that year and elected Sumner Senator and Boutwell Governor. The next year Worcester failed to elect her representatives to the Legislature, which were voted for all on one ticket and required a majority, and there was to be a second election on the fourth Monday of November. There was a delegate convention to nominate representatives, of which I was a member. When the vote was announced, to my surprise and consternation, I was one of the persons nominated. Nobody had said a word to me about it beforehand. That was Friday night. I told the Convention I could not accept such a nomination without my father's approval. I was then twenty- five years old. It was proposed that the Convention adjourn until the next evening, and that meantime I should go down to Concord and see if I could get my father's leave. Accordingly the Convention adjourned to see if the infant candidate could get permission to accept. My father told me he thought that to go to the Legislature once would be useful to me in my profession; I should learn how laws were made, and get acquainted with prominent men from different parts of the State. So he advised me to accept, if I would make up my mind that I would go only for one year, and would after that stick to the law, and would never look to politics as a profession or vocation. I accepted the nomination, was elected, and was made Chairman of one of the Law Committees in the House.
I declined a reelection and devoted myself to my profession, except that I served in the Massachusetts Senate one year, 1857, being nominated unexpectedly and under circumstances somewhat like those which attended my former nomination. I was Chairman of the Judiciary Committee that year. I devoted all my time, day and even far into the night, to my legislative duties. I was never absent a single day from my seat in the House in 1852, and was absent only one day from my seat in the Senate, in 1857, when I had to attend to an important law suit. It so happened that there was a severe snow storm that day, which blocked up the railroads, so that there was no quorum in the Senate. I could not myself have got to the State House, if I had tried. I suppose I may say without arrogance that I was the leader of the Free Soil Party in each House when I was a member of it. In 1852 I prepared, with the help of Horace Gray, afterward Judge, who was not a member of the Legislature, the Practice Act of 1852, which abolished the common law system of pleading, and has been in principle that on which the Massachusetts courts have acted in civil cases ever since. I studied the English Factory legislation, and read Macaulay's speeches on the subject. I became an earnest advocate for shortening the hours of labor by legislation. That was then called the ten-hour system. Later it has been called the eight-hour system. I made, in 1852, a speech in favor of reducing the time of labor in factories to ten hours a day which, so far as I know, was the first speech in any legislative body in this country on that subject. My speech was received with great derision. The House, usually very courteous and orderly, seemed unwilling to hear me through. One worthy old farmer got up in his seat and said: "Isn't the young man for Worcester going to let me get up in the morning and milk my caouws."
When a member of the Senate in 1857, I was Chairman of the Judiciary Committee. I made a very earnest and carefully prepared speech against the asserted right of the jury to judge of the law in criminal cases. It is a popular and specious doctrine. But it never seemed to me to be sound. Among others, there are two reasons against it, which seem to me conclusive, and to which I have never seen a plausible answer. One is that if the jury is to judge of the law, you will have as many different laws as you have juries. There is no revision of their conclusion. They are not obliged to tell, and there is no way in which the court can know, what their opinion was. So a man tried on one side of the court-house may be held guilty, and another man tried on the other side of the court-house may be held innocent for precisely the same act.
The other reason is that the court must always decide what evidence shall be admitted. So if the jury are to be the judges of the law, one authority must determine what evidence they shall consider, and another determine what law shall be applied to it. For instance, suppose a defendant charged with homicide offers to prove certain facts which as he claims justify the killing. The Judge says these facts do not, under the law, justify the killing and excludes the evidence. That may be the real point in the case, and the jury may believe that those facts fully justify the homicide; still they cannot be permitted to hear them. It is preposterous to suppose that so logical and reasonable a system as the Common Law could ever have tolerated such an absurdity. My friend, Mr. Justice Gray of the United States Supreme Court, an admirable judge and one of the great judges of the world, in his dissenting opinion in Sparf et al. v. U. S., 156, U. S. Reports, page 51, etc., has little to say on this point, except that of course there must be some authority to regulate the conduct of trials.
I declined a reelection to the Senate. I was twice nominated for Mayor by the Republicans of Worcester, when the election of their candidate was sure; once by a Citizens' Convention, and once by a Committee authorized to nominate a candidate, and another year urged by prominent and influential citizens to accept such a nomination. But I preferred my profession. I never had any desire or taste for executive office, and I doubt if I had much capacity for it.
When Charles Allen declined reelection to Congress, in 1852, I have no doubt I could have succeeded him if I had been willing, although I was but twenty-six years old, only a year past the Constitutional age.
As I found myself getting a respectable place in the profession my early ambitions were so far changed and expanded that I hoped I might some day be appointed to the Supreme Court of the Commonwealth of Massachusetts. It seemed to me then, as it seems to me now, that there could be no more delightful life for a man competent to the service than one spent in discussing with the admirable lawyers, who have always adorned that Bench, the great questions of jurisprudence, involving the rights of citizens, and the welfare of the Commonwealth, and helping to settle them by authority. This ambition was also disappointed. I have twice received the offer of a seat on that Bench, under circumstances which rendered it out of the question that I should accept it, although on both occasions I longed exceedingly to do so.
Shortly after I was admitted to the Bar, good fortune brought me at once into the largest practice in the great County of Worcester, although that Bar had always been, before and since, one of the ablest in the country. Judge Emory Washburn, afterward Governor and Professor of Law at Harvard, and writer on jurisprudence, had the largest practice in the Commonwealth, west of Boston, and I suppose with one exception, the largest in the Commonwealth outside of Boston. He asked me to become his partner in June, 1852. I had then got a considerable clientage of my own. Early in 1853 he sailed for Europe, intending to return in the fall. I was left in charge of his business during his six months' absence, talking with the clients about cases in which he was already retained, and receiving their statements as to cases in which they desired to retain him on his return. Before he reached home he was nominated for Governor by the Whig Convention, to which office he was elected by the Legislature in the following January. So he had but a few weeks to attend to his law business before entering upon the office of Governor. I kept on with it, I believe without losing a single client. That winter I had extraordinarily good fortune, due I think very largely to the kindly feeling of the juries toward so young a man attempting to undertake such great responsibilities.
My professional life from January 1, 1850, until the 4th of March, 1869, was a life of great and incessant labor. When the court was in session I was constantly engaged in jury trials. Day after day, and week after week, I had to pass from one side of the court-house to the other, being engaged in a very large part of the important actions that were tried in those days. The Court had long sessions. The judges who came from abroad were anxious to get their work done and go back to their homes. So the Courts sat from half past eight or nine o'clock in the morning until six in the afternoon with an intermission of an hour, or an hour and a quarter, for dinner. The parties to the suits came from all over Worcester County. Frequently it was impossible to see the witnesses until the trial came on, or just before. So the lawyer had to spend his evenings and often far into the night in seeing witnesses and making other preparations for the next day. General Devens and I had at one term of the Supreme Court held by Chief Justice Bigelow twenty trial actions. The term resulted in a serious injury to my eyes and in my being broken down with overwork. So I was compelled to go to Europe the following year for a vacation.
But I found time somehow, as I have said, to keep up a constant and active interest in politics. I was also able to contribute something to other things which were going on for the benefit of our growing city. I got up the first contribution for the Free Public Library, of which I was made President. I took a great interest in the founding of the famous Worcester Polytechnic Institute, and I was the first person named in its Act of Incorporation. The first meeting of its Trustees was held in my office, and I am now the only surviving member of that Board, in which I have retained a warm interest ever since. In 1869 I made before the Massachusetts Legislature, on a petition which was successful for a legislative grant to that school, what I believe is the first public address ever made in behalf of Technical Education in this country. I was for some time President of the Board of Trustees of the City Library and while President planned the excellent reading room connected with the Library, for which I obtained a handsome endowment by personal solicitation.
I was also Trustee of Leicester Academy.
The Worcester Lyceum, which furnished the principal course of lectures in the city in those days, was in the hands of some very worthy and conservative old Whigs. They would not permit any politics or religion, or what was called Radicalism, either in religious or social matters, to be discussed on their platform. So we had to listen to very respectable and worthy, but rather dull and tame conservative gentlemen, or stay away, as we preferred. A few of the young men, of whom I was one, conspired to get possession of the Lyceum. They turned out in force for the election of officers, chose me President, and we got Wendell Phillips and Theodore Parker and Ralph Waldo Emerson and other shining lights of a newer philosophy, much to the indignation of the old Whig magnates. But the lectures were very successful, and at the end of my Presidency, which lasted two or three years, we had an ample balance in our treasury.
If I were to give an account of my professional life for twenty years, I must make another book. It was full of interest and romance. The client in those days used to lay bare his soul to his lawyer. Many of the cases were full of romantic interest. The lawyer followed them as he followed the plot of an exciting novel, from the time the plaintiff first opened his door and told his story till the time when he heard the sweetest of all sounds to a lawyer, the voice of the foreman saying: "The jury find for the plaintiff." Next to the "yes," of a woman, that is the sweetest sound, I think, that can fall on human ears.
I used to have eighteen or twenty law cases at the fall term each year. The judges gave their opinions orally in open Court, and the old judges like Shaw and Metcalf, used to enliven an opinion with anecdotes or quaint phrases, which lent great interest to the scene. If Walter Scott could have known and told the story of the life of an old Massachusetts lawyer from the close of the Revolution down to the beginning of the Rebellion, there is nothing in the great Scotch novels which would have surpassed it for romance and for humor.
I think I may fairly claim that I had a good deal to do with developing the equity system in the courts of Massachusetts, and with developing the admirable Insolvency system of Massachusetts, which is substantially an equity system, from which the United States Bankruptcy statutes have been so largely copied.
The great mass of the people of Massachusetts, Whigs and Democrats as well as Republicans, were loyal and patriotic and full of zeal when the war broke out. A very few of the old Whigs and Democrats, who were called "Hunkers" or "Copperheads," sympathized with the Rebellion, or if they did not, were so possessed with hatred for the men who were putting it down that they could find nothing to approve, but only cause for complaint and faultfinding. Andrew, the Governor, Sumner and Wilson, the Senators, most of the members of Congress, most of the leaders in the Legislature and in the military and political activities, were of the old Free Soil Party. There was a feeling, not wholly unreasonable, that the old Whigs had been somewhat neglected, and that their cooperation and help were received rather coldly. This feeling led to the movement, called the People's Party, which begun at a large public meeting in Cambridge, where my dear old friend and partner, ex-Governor Washburn, was one of the speakers. That party called a State Convention and nominated Charles Devens for Governor. Devens had been an old Whig. He had become a Republican in 1856, and had been one of the earliest to enlist in the War, in which he became afterward the most famous Massachusetts soldier. He was a man of spirit, very affectionate and generous, always ready to stand by his friends, especially if he suspected that anybody had treated them unjustly. The People's Party sent a Committee to the seat of war in September, 1862. The Committee found Devens in his tent, repeated to him the plans of his old Whig friends, and induced him to accept the nomination of the People's Party for Governor.
I was called to the battlefield of Antietam, where a near kinsman of mine had been mortally wounded, just about the same time. I entered Devens's tent just as this Committee was leaving it with his written acceptance in their hands. I told him the other side of the story, told him how the whole people were alive with enthusiasm, and that Governor Andrew was doing the very best possible, and that these petty jealousies, while there was some little reason for them, ought not to affect the public action of the people. Devens regretted very much what he had done. He told me that if he could recall the letter, he would do it. But it was too late.
Governor Andrew was triumphantly reelected, and Devens was ever after an earnest and loyal Republican.