Autobiography of Seventy Years, Vol. 1-2

by George Frisbie Hoar

On the whole, the most successful of the Worcester Bar, in my time, in the practice of his profession, was Emory Washburn. He was a man of less intellectual power undoubtedly than either of his great contemporaries and antagonists, Allen, Merrick, or Thomas. Yet he probably won more cases, year in and year out, than either of them. He was a man of immense industry. He went to his office early in the morning, took a very short time, indeed, for his meals, and often kept at work until one or two o'clock in the morning of the next day. He suffered severely at one time from dyspepsia brought on by constant work and neglect of exercise; but generally he kept his vigorous health until his death at the age of eighty. He was indefatigable in his service to his clients. His mind was like a steel spring pressing on every part of the other side's case. It was ludicrous to see his sympathy and devotion to his clients, and his belief in the cause of any man whom he undertook to champion. It seemed as if a client no sooner put his head on the handle of Washburn's office-door than his heart warmed to him like that of a mother toward her first-born. No strength of evidence to the contrary, no current of decisions settling the law would prevent Washburn from believing that his man was the victim of prejudice or persecution or injustice. But his sincerity, his courtesy of manner and kindness of heart made him very influential with juries, and it was rare that a jury sat in Worcester county that had not half a dozen of Washburn's clients among their number.

I was once in a very complicated real estate case as Washburn's associate. Charles Allen and Mr. Bacon were on the other side. Mr. Bacon and I, who were juniors, chatted about the case just before the trial. Mr. Bacon said: "Why, Hoar, Emory Washburn doesn't understand that case the least in the world." I said, "No, Mr. Bacon, he doesn't understand the case the least in the world. But you may depend upon it he will make that jury misunderstand it just as he does." And he did.

Charles Allen, who never spared any antagonist, used to be merciless in dealing with Washburn. He once had a case with him which attracted a great deal of public attention. There had been a good many trials and the cost had mounted up to a large sum. It was a suit by a farmer who had lost a flock of sheep by dogs, and who tried to hold another farmer responsible as the owner of the dog which had killed them. One of the witnesses had been out walking at night and heard the bark of the dog in the field where the sheep were. He was asked to testify if he could tell what dog it was from the manner of his bark. The evidence was objected to, and Allen undertook to support his right to put the question. He said we were able to distinguish men from each other by describing their manner and behavior, when the person describing might not know the man by name. "For instance, may it please your Honor, suppose a stranger who came into this court-house during this trial were called to testify to what took place, and he should say that he did not know anybody in the room by sight, but there was a lawyer there who was constantly interrupting the other side, talking a great deal of the time, but after all didn't seem to have much to say. Who would doubt that he meant my Brother Washburn?"

This gibe is only worth recording as showing the court-house manners of those times. It is no true picture of the honest, faithful and beloved Emory Washburn. He was public-spirited, wise, kind-hearted, always ready to give his service without hope of reward or return to any good cause, a pillar of the town, a pillar of the church. He had sometimes a certain confusion of statement and of thought, but it was only apparent in his oral discourse. He wrote two admirable law-books, one on easements, and one on real property. Little & Brown said his book on easements had the largest sale of any law- book ever published in this country up to its time. He was a popular and useful Professor in the Harvard Law School. He gave a great deal of study to the history of Massachusetts, and was the author of some valuable essays on historical questions, and some excellent discourses on historical occasions. He left no duty undone. Edward Hale used to say: "If you want anything done well, go to the busiest man in Worcester to do it—Emory Washburn, for example." He was grievously disappointed that he was not appointed Judge of the Supreme Court when Judge Thomas became a member of the Bench. A little while afterward there was another vacancy, and Governor Clifford took Merrick, another of Washburn's contemporaries and rivals at the bar, although Merrick was a Democrat, and the Governor, like Washburn himself, was a Whig. This was almost too much for him to bear. It took place early in the year 1853. Mr. Washburn sailed for Europe a few weeks after, and felt almost like shaking off the dust of his feet against Massachusetts and the Whig Party. But he was very agreeably compensated for his disappointment. During his absence he was nominated by the Whigs for the office of Governor, to which office he was elected in the following January, there being then, under our law, which required a clear majority of all the votes, no choice by the people. He made an admirable and popular Governor. But the Nebraska Bill was introduced in that year. This created strong excitement among the people of Massachusetts, and the Know-Nothing movement came that fall, inspired more by the desire of the people to get rid of the old parties, and form a new anti-slavery party, than by any real opposition to foreigners, which was its avowed principle. This party swept Massachusetts, electing all the State officers and every member of the State Legislature except two from the town of Northampton. They had rather a sorry Legislature. It was the duty of the outgoing Governor to administer the oath to the Representatives- and Senators-elect. Governor Washburn performed that duty, and added: "Now, gentlemen, so far as the oath of office is concerned, you are qualified to enter upon your duties."

Governor Washburn was a thorough gentleman, through and through, courteous, well-bred, and with an entirely sufficient sense of his own dignity. But he had little respect for any false notions of gentility, and had a habit of going straight at any difficulty himself. To this habit he owed much of his success in life. A very amusing story was told by Mrs. Washburn long after her husband's death. She was one of the brightest and sprightliest and wittiest of women. Her husband owed to her much of his success in life, as well as much of his comfort and domestic enjoyment. She used to give sometimes half a dozen entertainments in the same week. She was never disconcerted by any want of preparation or suddenness of demand upon her hospitality. One day some quite distinguished guests arrived in Worcester unexpectedly, whom it was proper that she should keep to dinner. The simple arrangements which had been made for herself and her husband would not do. She accordingly went at once to the principal hotel of the town, in the neighborhood, and bargained with the landlord to send over the necessary courses for her table, which were just hot and cooked and ready for his own. She got off very comfortably without being detected.

Her story was that one time when Judge Washburn was Governor the members of his Staff came to Worcester on some public occasion and were all invited to his house to spend the night. When he got up in the morning he found, to his consternation, that the man who was in the habit of doing such services at his house was sick, or for some other reason had failed to put in an appearance, and none of the boots of the young gentlemen were blacked. The Governor was master of the situation. He descended to his cellar, took off his coat, blacked all the boots of the youngsters himself, and met them at breakfast with his usual pleasant courtesy, as if nothing had happened.

I do not undertake to give a full sketch of Benjamin F. Thomas. He was one of the very greatest of American lawyers. But such desultory recollections as these are apt to dwell only on the eccentricities or peculiarities or foibles of men. They are not the place for elaborate and noble portraiture.

Judge Thomas was the principal figure in the Worcester court- house after Judge Allen's election to Congress in 1848. Judge Thomas did not get large professional business very rapidly. He was supposed, in his youth, to be a person of rather eccentric manners, studious, fond of poetry and general literature and of historical and antiquarian research. He was impulsive, somewhat passionate, but still with an affectionate, sunny, generous nature, and a large heart, to which malice, hatred, or uncharitableness were impossible. It is said that in his younger days he used to walk the streets, wrapped in his own thoughts, unconscious of the passers-by, and muttering poetry to himself. But when I came into his office as a student, in August, 1849, all this trait had disappeared. He was a consummate advocate, a favorite alike with Judges and jurors, winning his causes wherever success was possible, and largely employed. He had a clear voice, of great compass, pitched on rather a high key, but sweet and musical like the sound of a bugle. The young men used to fill the court-house to hear his arguments to juries. He became a very profound lawyer, always mastering the learning of the case, but never leaning too much upon authorities. Charles Emerson's beautiful phrase in his epitaph upon Professor Ashmun, "Books were his helpers, never his masters," was most aptly applied to Thomas. If he had any foible which affected at all his usefulness or success in life it was an impatience of authority, whether it were the authority of a great reputation, or of party, or of public sentiment, or of the established and settled opinions of mankind. He went on the Supreme Bench in 1853. Dissenting opinions were rare in the Massachusetts Supreme Court in those days. In this I think the early Judges were extremely wise. Nothing shakes the authority of a court more than the frequent habit of individual dissent. But Judge Thomas dissented from the judgments of his court on several very important occasions. His dissenting opinions were exceedingly alike. I think it would have been better if they had not been delivered. I think he would have been much more likely to have come to the other conclusion if the somewhat imperious intellect of Shaw had not been put into the prevailing scale. When all Massachusetts bowed down to Webster, Judge Thomas, though he respected and honored the great public idol, supported Taylor as a candidate for the Presidency. At the dinner given to the Electoral College after the election, where Mr. Webster was present, Judge Thomas shocked the meeting by saying: "Some persons have spoken of our candidate as their second choice. I am proud to say that General Taylor was not only my last, but my first choice." So, when Judge Thomas was in Congress, while he was as thoroughly loyal, patriotic, and brave a man as ever lived, he opposed the policies of the Republican Party for carrying on the war and putting down the Rebellion. He was thought to be inspired by a great dislike of submitting to party authority or even to that of President Lincoln. He was very fond of young men. When he was Judge they always found that they had all the consideration that they deserved, and had no fear of being put at a disadvantage by any antagonist, however able or experienced. The Judge seemed always to be stirred by the suggestion of an intellectual difficulty. When I was seeking some remedy at his hands, especially in equity, I used to say that I thought I had a just case, but I was afraid his Honor might think the legal difficulties were insuperable and I did not know whether I could get his Honor's approbation of what I asked. He would instantly rouse himself and seem to take the suggestion as a challenge, and if it were possible for human ingenuity to find a way to accomplish what I wanted he would do it. He preserved the sweetness and joyous spirit of boyhood to the day of his death. It was delightful to catch him when he was at leisure, to report to him any pleasant story that was going about, and to hear his merry laugh and pleasant voice. He was a model of the judicial character. It was a delight to practise before him at nisi prius. I have known a great many admirable lawyers and a good many very great Judges. I have known some who had more learning, and some, I suppose, though very few, who had greater vigor of intellect. But no better Judge ever sat in a Massachusetts court-house. Dwight Foster felicitously applied to him the sentence which was first uttered of Charles James Fox, that "his intellect was all feeling, and his feeling all intellect."

Dwight Foster came to the Bar just a week after I did. But I ought not to omit him in any account of the Massachusetts lawyers or Judges of my time. He rose rapidly to a place in the first rank of Massachusetts lawyers, which he held until his untimely death. He was graduated the first scholar in his class at Yale in 1848. Before he was graduated he became engaged to a very admirable and accomplished lady, daughter of Roger S. Baldwin, Governor of Connecticut and United States Senator, then head of the Connecticut Bar. This lady had some tendency to a disorder of the lungs and throat which had proved fatal to two of her brothers. Dwight Foster was very anxious to get her away from New Haven, where he thought the climate and her habit of mingling in gay society very unfavorable to her health. So he set himself to work to get admitted to the Bar and get established in business that he might have a place for her in Worcester. He was examined by Mr. Justice Metcalf, after studying a little more than a year, and found possessed of attainments uncommon even for persons who had studied the full three years and had been a good while at the Bar. Judge Metcalf admitted him, and on some other Judge criticising what he had done, the Judge said, with great indignation, "If he thinks Foster is not qualified, let him examine him himself."

Mr. Foster's first employment had very awkward consequences. The people in Worcester had the old Puritanic dislike to theatrical entertainments, and had always refused to license such exhibitions. But a company of actors desired to obtain a theatre for the season and give performances in Worcester. There was a great opposition, and the city government ordered a public hearing of the petition in the old City Hall. Foster was employed by the petitioners. The hall was crowded with citizens interested in the matter, and the Mayor and Aldermen sat in state on the platform. When the hearing was opened, the audience were struck with astonishment by the coming forward of Dwight Foster's father, the Hon. Alfred D. Foster, a highly honored citizen of great influence and ability. He had been in the State Senate and had held some few political offices, but had disliked such service and had never practised law, having a considerable property which he had inherited from his father, the former United States Senator. He made a most eloquent and powerful appeal to the aldermen to refuse the petition, in the name of morality and good order. He stated the deplorable effect of attending such exhibitions on the character of the youth of our city of both sexes, cited the opinion and practice of our ancestors in such matters, and made a profound impression. He then warned his hearers against the young man who was to follow him, whom, he said, he loved as his life, but he was there employed as a lawyer with his fee in his hand, without the responsibility which rested upon them of protecting the morals and good order of the city. It was very seldom that so powerful a speech was heard in that hall, although it was the cradle of the Anti-slavery movement, and had been the scene of some of the most famous efforts of famous orators. Everybody supposed that the youth was crushed and would not venture to perform his duty in the face of such an attack. But he was fully equal to the occasion. He met his father with a clear, simple, modest, but extremely able statement of the other side; pointed out the harmlessness of such exhibitions when well conducted, and that the strictness which confounded innocence and purity with guilt and vice was itself the parent and cause of vice. He did not allude to his father by name or description, but in replying to his arguments said: "It is said in some quarters," or "An opposition comes from some quarters" founded on such-and-such reasons. He got the sympathy of his audience and carried his point. And from that time nobody hesitated to trust Dwight Foster with any cause, however important, from any doubt of his capacity to take care of his clients.