Autobiography of Seventy Years, Vol. 1-2

by George Frisbie Hoar

The Chief Justice had not the slightest sense of humor. When old Judge Wilde, the great real property Judge, died after an illustrious judicial service of thirty-five years, somebody showed Chief Justice Shaw a register published in Boston which recorded his death, "Died in Boston, the Honorable Samuel S. Wilde, aged eighty, many years Justice of the Peace." It was passed up to the Bench. The old Chief Justice looked at it, read it over again, and said "What publication is this?"

In the old days, when the lawyers and Judges spent the evenings of Court week at the taverns on the Circuit, the Chief Justice liked to get a company of lawyers about him and discourse to them. He was very well informed, indeed, on a great variety of matters, and his talk was very interesting and full of instruction. But there was no fun in it. One evening he was discoursing in his ponderous way about the vitality of seed. He said: "I understand that they found some seed of wheat in one of the pyramids of Egypt, wrapped up in a mummy- case, where it had been probably some four thousand years at least, carried it over to England last year and planted it, and it came up and they had a very good crop."

"Of mummies, sir?" inquired old Josiah Adams, a waggish member of the Bar.

"No, Mr. Adams," replied the Chief Justice, with a tone of reproof, and with great seriousness. "No, Mr. Adams, not mummies—wheat."

Adams retired from the circle in great discomfiture. He inquired of one of the other lawyers, afterward, if he supposed that the Chief Justice really believed that he thought the seed had produced mummies, and was told by his friend that he did not think there was the slightest doubt of it.

Chief Justice Shaw, though very rough in his manner was exceedingly considerate of the rights of poor and friendless persons. Sometimes persons unacquainted with the ways of the world would desire to make their own arguments, or would in some way interrupt the business of the court. The Chief Justice commonly treated them with great consideration. One amusing incident happened quite late in his life. A rather dissipated lawyer who had a case approaching on the docket, one day told his office-boy to "Go over to the Supreme Court and see what in hell they are doing." The Court were hearing a very important case in which Mr. Choate was on one side and Mr. Curtis on the other. The Bar and the Court-Room were crowded with listeners. As Mr. Curtis was in the midst of his argument, the eye of the Chief Justice caught sight of a young urchin, ten or eleven years old, with yellow trousers stuffed into his boots, and with his cap on one side of his head, gazing intently up at him. He said, "Stop a moment, Mr. Curtis." Mr. Curtis stopped, and there was a profound silence as the audience saw the audacious little fellow standing entirely unconcerned. "What do you want, my boy?" said the Chief Justice. "Mr. P. told me to come over here and see what in hell you was up to," was the reply. There was a dive at the unhappy youth by three or four of the deputies in attendance, and a roar of laughter from the audience. The boy was ejected. But the gravity of the old Chief Justice was not disturbed.

He had a curiously awkward motion, especially in moving about a parlor in social gatherings, or walking in the street. I once pointed out to a friend a ludicrous resemblance between his countenance and expression and that of one of the tortoises in the illustrations of one of Agassiz's works on natural history. To which my friend replied: "It is the tortoise on which the elephant stands that bears up the foundations of the world," alluding to the Hindoo mythology.

Chief Justice Shaw's opinions, as we have them in the reports, are exceedingly diffuse. That practice would not answer for a generation which has to consult the reports of forty-five States and of the Supreme Court and nine judicial circuits of the United States, besides the reports of the decisions of some of the District Judges, and in most cases the English decisions. But it would be a great public loss if any of Chief Justice Shaw's utterances were omitted. His impulse, when a question was argued before him, was to write a treatise on the subject. So his decisions in cases where the questions raised are narrow and unimportant are often most valuable contributions to jurisprudence. He seldom passed over any point or suggestion without remark. He went to the bottom of the case with great patience and incredible industry. The counsel who lost his case felt not only that he had had the opinion of a great and just magistrate, but that every consideration he could urge for his client was respectfully treated and either yielded to or answered. Some of his ablest and most far-reaching decisions were written after he was eighty years old.

He possessed, beyond any other American Judge, save Marshall, what may be termed the statesmanship of jurisprudence. He never undertook to make law upon the Bench, but he perceived with a far-sighted vision what rule of law was likely to operate beneficially or hurtfully to the Republic. He was watchful to lay down no doctrine which would not stand this test. His great judgments stand among our great securities, like the provisions of the Bill of Rights.

The Chief Justice was a tower of strength to the Massachusetts judiciary. But for him it is not unlikely that the State would have adopted an elective judiciary or a tenure limited to a term of years. But the whole people felt that his great integrity and wisdom gave an added security to every man's life, liberty, and property. So the proposition to limit the judicial tenure, although espoused by the two parties who together made up a large majority of the people of the State, was defeated when it was submitted to a popular vote. It is, however, a little remarkable that in the neighboring State of Vermont, for many years the Judges of the Supreme Court were annually elected by the Legislature, a system which, I believe, has worked on the whole to their satisfaction. They have had an able judiciary. It is said that old Chief Justice Shaw was one evening discoursing at a meeting of the Boston Law Club to an eminent Vermont Judge, who was a guest. He said, "With your brief judicial tenure, sir—" The Vermonter interrupted him and said, "Why, our tenure of office is longer than yours." "What do you mean?" said the Chief Justice. "I do not understand you." "Why," was the reply, "our Judges are elected for a year, and you are appointed as long as you behave yourselves."