Autobiography of Seventy Years, Vol. 1-2

by George Frisbie Hoar

Judge Metcalf told me this story about Chief Justice Parsons. The Chief Justice's manner to the Bar, as is well-known, was exceedingly rough. He was no respecter of persons, and treated the old and eminent lawyers quite as harshly as the youngsters. The Bar used to call him Ursa Major. The Chief Justice used to look over the pleadings carefully before the trials began. It was in the time when special pleading often brought the issue to be decided into a narrow compass. Soon after the case was begun, the Judge would take the case out of the hands of the counsel and examine the witnesses himself, and give an opinion which was likely to be implicitly followed by the jury. Jabez Upham, of Brookfield, in Worcester County, Mr. Justice Gray's grandfather, once sent his office-boy to Court with a green bag containing his papers, thinking there was no use in going himself. At last the leading members of the Bar in Boston got very angry, and four or five of them agreed together to teach the old Chief a lesson. So they sat down to a trial in the Supreme Court where Parsons was presiding. Pretty soon he interfered with the lawyer who was putting in the case for the plaintiff, in his rough way. The lawyer rose and said: "I cannot take care of my client's rights where my own are not respected," or something to that effect. "I will ask Brother Sullivan to take my place." Sullivan, who was possessed of the case, took the place. The trial went on a little while, when something happened which offended Sullivan. He rose and said he could not go on with the case after his Honor's remark, and would ask Brother So-and-So, perhaps Otis, to take his place. This happened three or four times in succession. The Chief Justice saw the point and adjourned the Court very early for the noon recess, and went to the house of his colleague, Judge Sewall, who lived out somewhere on the Neck, called him out and said: "You must go down and hold that Court. There is a con_spire_acy sir." Parsons never held a nisi-prius term in Suffolk again.

Chief Justice Shaw used to tell with great indignation the story of his first appearance before Parsons, when a young man. There was a very interesting question of the law of real property, and Samuel Dexter, then the head of the Bar, was on the other side. Parsons was interested in the question as soon as it was stated, and entered into a discussion with Dexter in which they both got earnestly engaged. The Chief Justice intimated his opinion very strongly and was just deciding it in Dexter's favor, when the existence of the young man on the other side occurred to him. He looked over the bar at Shaw and said: "Well, young man, do you think you can aid the Court any in this matter?" "I think I can, sir," said Shaw with spirit. Parsons listened to him, but, I believe, remained of his first opinion.

Judge Metcalf in the time when he was upon the Bench had the credit, I do not know how well deserved it was, of not being much given to hospitality. He was never covetous, and he was very fond of society and conversation. But I fancy he had some fashions of his own in housekeeping which he thought were not quite up to the ways of modern life. At any rate, he was, so far as I know, never known to invite any of his brethren upon the Bench or of the Bar to visit him at his house, with one exception. One of the Judges told me that after a hard day's work in court the Judges sat in consultation till between nine and ten o'clock in the evening, and he walked away from the Court-House with Judge Metcalf. The Judge went along with him past the Tremont House, where my informant was staying. As they walked up School Street, he said: "Why, Judge Metcalf, I didn't know you went this way. I thought you lived out on the Neck somewhere." "No, sir," said Judge Metcalf, "I live at number so-and-so Charles Street, and I will say to you what I heard a man say the first night I moved into my present house. I heard a great noise in the street after midnight, and got up and put my head out of the window. There was a man lying down on the sidewalk struggling, and another man, who seemed to be a policeman, was on top of him holding him down. The fellow with his back to the ground said: 'Let me get up, —- d—- you,' The policeman answered: 'I sha'n't let you get up till you tell me what your name is and where you live.' The fellow answered, 'My name is Jerry Mahoney, —- d—- you, and I live at No. 54 Cambridge Street, —- d—- you, where I'd be happy to see you, —- d—- you, if you dare to call." That was the only instance known to his judicial brothers of Judge Metcalf's inviting a friend to visit him.

Judge Metcalf's legal opinions will read, I think, in the future, as well as those of any Judge of his time. They are brief, compact, written in excellent English, and precisely fit the case before him without any extraneous or superfluous matter. He would have been a very great Judge, indeed, if his capacity for the conduct of jury trials and dealing with nisi-prius business in general had equalled his ability to write opinions on abstract questions.

John Davis was never a Judge. But a few words about him may well find a place here. He had long since withdrawn from the practice of law when I came to Worcester. He remained in the Senate of the United States until March 4, 1853. But the traditions of his great power with juries remained. I was once or twice a guest in his house, and once or twice heard him make political speeches.

My father, who had encountered all the great advocates of his time in New England—Webster, Choate, Jeremiah Mason, Dexter— used to say that John Davis was the toughest antagonist he ever encountered. Mr. Davis had no graces of oratory or person. He was not without a certain awkward dignity. His head was covered with thick and rather coarse white hair. He reminded you a little, in look and movement, of a great white bear. But he had a gift of driving his point home to the apprehension of juries and of the people which was rarely equalled. He was a man of few words and infrequent speech, without wit or imagination. He thoroughly mastered the subjects with which he dealt. When he had inserted his wedge, he drove it home with a few sledge-hammer blows. It was commonly impossible for anybody to extract it. It was only the great weight of his authority, and the importance of the matters with which he dealt, which kept him from seeming exceedingly tedious. I remember thinking when I heard him make a speech in behalf of General Scott in the City Hall, in the autumn of 1852, that if any man but John Davis were talking the audience could not be kept awake. He spoke very slowly, with the tone and manner of an ordinary conversation. "The Whigs, fellow- citizens, have presented for your suffrages this year, for the office of President of the United States, the name of Major-General Winfield Scott. I know General Scott. I have had good opportunity to acquaint myself with his character and public service. I think you may give him your confidence, gentlemen." That was pretty much the whole speech. At any rate, there was nothing more exciting in it. But it was John Davis that said it, and it had great effect upon his audience.

Mr. Davis supported General Taylor for President in 1848, thereby, on the one hand, offending Mr. Webster, with whom his relations had for some time been exceedingly strained, and the anti-slavery men in Massachusetts on the other. It was understood also that he had displeased Governor Lincoln at the time of his election to the Senate, Governor Lincoln thinking that Mr. Davis had taken an undue advantage of his official influence as Governor to promote his own selection. But the two united in the support of General Taylor, which led Charles Allen to quote a verse which has been more than once applied in the same way since, "And in that day Pilate and Herod were made friends together."

Mr. Davis was a careful and prudent manager of money matters, and left what was, for his time, a considerable estate, considering the fact that so much of his life had been passed in the public service. His success in public life was, doubtless, in large measure, increased by his accomplished and admirable wife, the sister of George Bancroft. She was a lady of simple dignity, great intelligence, great benevolence and kindness of heart. Her conversation was always most delightful, especially in her old age, when her mind was full of the treasures of her long experience and companionship with famous persons. Mr. Davis left five sons, all of them men of ability. The eldest has been Minister to Berlin, Assistant Secretary of State, Secretary of Legation in London, Judge of the Court of Claims, and Reporter of the decisions of the Supreme Court of the United States. Another son, Horace, has been a member of Congress, eminent in the public life of California, and, I believe, president of the University of California.

John Davis won great distinction by a very powerful speech on the tariff question in reply to James Buchanan. Buchanan was one of the most powerful Democratic leaders in the Senate, but Davis was thought by the Whigs to have got much the better of him in the debate. It was generally expected that he would be the Whig candidate for the Vice-Presidency in 1840. But another arrangement was made, for reasons which may be as well told here. The Whig Convention to nominate a President was held at Harrisburg, Pa., in December 4, 1839, nearly a year before the election. The delegates from the different States were asked to consult together and agree upon their first choice. Then they were asked to say whom they thought next to the person they selected would be the strongest candidate. When the result was ascertained, it was discovered that William Henry Harrison was thought by a very large majority of the Convention to be the strongest candidate they could find. He was accordingly selected as the Whig standard-bearer. A committee of one person from each State was then chosen to propose to the Convention a candidate for Vice-President. Benjamin Watkins Leigh, of Virginia, was a strong supporter of Henry Clay, a man of great personal worth, highly esteemed throughout the country. The Convention adjourned, and came in after the adjournment to hear the report of the committee. Mr. Leigh accosted the Chairman of the committee and stood with him in a conspicuous place as the delegates filed in. He inquired of the Chairman what conclusion they had come to as to a candidate for Vice-President. To which the Chairman replied: "You will be informed in due time." When the Convention was called to order, one of the delegates from Massachusetts made a speech in which he set forth the high qualities that were desired in a candidate for this important office, and, after giving a sketch of exalted character and great capacity for the public service, he ended by declaring that such a man was Mr. Leigh, of Virginia, and proposing his name as the unanimous recommendation of the committee. Mr. Leigh was taken aback. He had been a zealous supporter of Mr. Clay. He addressed the chair, saying he was much gratified by what had been said by his friend from Massachusetts, and he hoped he might live in some humble measure to deserve the tribute which had been paid to him. But he thought that having been a zealous supporter of Mr. Clay, and having had, in some sense, the charge of his candidacy, he could not himself accept a nomination in connection with another person without exposing himself to the suspicion that he had in some way benefitted by the defeat of his own candidate and leader. It was said that his embarrassment was increased by the fact that he had been seen conversing with the Chairman of the committee by the members of the Convention. How that is I do not know. The result was the nomination of Mr. Tyler, his election, his succession to the Presidency after the death of Harrison, which resulted in such disastrous consequences to the Whigs.

John Davis was a Federalist and a Whig. His sons were Whigs and Republicans always on the conservative side of public questions. His nephew, Colonel Isaac Davis, was in that respect a contrast to his uncle.