Autobiography of Seventy Years, Vol. 1-2

by George Frisbie Hoar

"That rule is abolished by the statoot, sir."

"Why didn't you tell me that?" said Webster angrily to his junior.

Another of our great old Judges was Judge Fletcher. He had had a great practice as an advocate in Boston, especially as a commercial lawyer. He had a great power of clear statement. He brought out his utterances in a queer, jerking fashion, protruding his lips a little as he hesitated at the beginning of his sentences. But he knew how to convey his meaning to the apprehension of Courts and juries. He left the Bench less than two years after I came to the Bar. I never had but one important case before him. He was a bachelor. He was very interesting in conversation, liked the company of young men, who never left him without carrying away some delightful anecdote or shrewd and pithy observation.

A lawyer from the country told me one day that he had just been in Fletcher's office to get his opinion. While he was in the office, old Ebenezer Francis, a man said to be worth $8,000,000, then the richest man in New England, came to consult him about a small claim against some neighbor. Fletcher interrupted his consultation with my friend and listened to Mr. Francis's story. In those days, parties could not be witnesses in their own cases. Fletcher advised his client that although he had an excellent case, the evidence at his command was not sufficient to prove it, and advised against bringing an action. Francis, who was quite avaricious, left the office with a heavy heart. When he had gone, Fletcher turned to my friend and said: "Isn't it pitiful, sir, to see an old critter, wandering about our streets, destitute of proof?"

But the most interesting and racy character among our old Judges was Theron Metcalf. He used to say of himself—a saying that did him great injustice—that he was taken to fill a gap in the Court as people take an old hat to stop a broken window. He undervalued his own capacity. He was not a good Judge to preside at jury trials. He had queer and eccentric notions of what the case was all about, and while he would state a principle of law with extraordinary precision and accuracy he had not the gift of making practical application of the law to existing facts. So a great many of his rulings were set aside, and it did not seem, when he had held a long term of Court, that a great deal had been accomplished. But he was a very learned common-lawyer. His memory was a complete digest of the decisions down to his time. He comprehended with marvellous clearness the precise extent to which any adjudged case went, and would state its doctrine with mathematical precision.

He hated statutes. He was specially indignant at the abolition of special pleading. He sent word to me, when I was Chairman of the Judiciary Committee in the Massachusetts Senate, asking to have a provision enacted for simplifying the process of bringing before the full Bench for revision the proceedings in habeas corpus, or mandamus, or certiorari, or some other special writ, I forget now what. I called upon him at once, and pointed out to him that exactly what he wanted was accomplished by the Practice Act of 1852. This was the statute under which all our legal proceedings in cases affecting personal property were had. Metcalf said, with great disgust: "I have said, sir, that if they did not repeal that thing I would not read it."

He used to enliven his judgments with remarks showing a good deal of shrewd wisdom. In one case a man was indicted for advertising a show without a license. The defendant insisted that the indictment was insufficient because it set out merely what the show purported to be, and not what it really was. On which the Judge remarked: "The indictment sets out all that is necessary, and, indeed, all that is safe. The show often falls short of the promise in the show-bill."

There was once a case before him for a field-driver who had impounded cattle under the old Massachusetts law. The case took a good many days to try, and innumerable subtle questions were raised. The Judge began his charge to the jury: "Gentlemen of the jury, a man who takes up a cow straying in a highway is a fool."

Another time there was a contest as to the value of some personal property which had been sold at auction. One side claimed that the auction-sale was a fair test of the value. The other claimed that property that was sold at auction was generally sold at a sacrifice. Metcalf said to the jury: "According to my observation, things generally bring at auction all they are worth, except carpets."

I once tried a case before him against the Norwich Railroad for setting fire to the house of a farmer by a spark from a locomotive. It was a warm summer afternoon when the house was burnt up. There was no fire in the house except a few coals among the ashes in a cooking stove where the dinner had been cooked some hours before. The railroad was very near the house. There was a steep up-grade, so that the engineers were tempted to open the bonnet of their smokestacks for a better draught. We called as a witness a sturdy, round-faced, fat old woman, who testified that she was sitting at her window, knitting, in a house some little distance away, when the train went by. She put in a mark to see, as she expressed it, "how many times round" she could knit before supper. A few minutes after, she heard a cry of fire, and looked out and saw a blaze on the roof of her neighbor's house, just kindling, close to the eaves on the side where the engine had passed. She threw down the stocking and went to help. The stocking was found after the fire with the mark just as she left it. So we claimed that we could tell pretty well how long the time had been between the passing of the train and the breaking out of the fire. Judge Metcalf, who was always fussy and interfering, said: "How can we tell anything by that, unless we know how large the stocking was?" The old lady, with a most bland smile, turned to the Judge as if she were soothing an infant, lifted up the hem of her petticoats, and exhibited a very sturdy ankle and calf, and said, "Just the size I wear, your Honor." There was a roar of laughter in the court-house. The incident was published in the morning paper the next day, much to the Judge's indignation. He addressed the audience when he came into Court in the morning, and said: "I see the Worcester Spy has been trying to put a fool's cap on my head."