Autobiography of Seventy Years, Vol. 1-2

by George Frisbie Hoar

He had been brought up as a Whig. But when the Nebraska Bill was passed, he became a zealous and earnest Republican. He was candidate for Mayor, but defeated on a very close vote by George W. Richardson. He held the office of Judge of Probate for a short time, by appointment of Governor Banks; was elected Attorney-General in 1860 when Governor Andrew was chosen Governor, and soon after was appointed Judge of the Supreme Court, an office which he filled with great distinction, then left the Bench to resume his practice, and died of a disease of the heart which he inherited from his ancestors. He was Governor Andrew's Attorney-General during the War, who said of him that "he was full of the fire and hard-working zeal of Massachusetts." He was the organ of the patriotism and energy of Worcester at the seat of government during the war, looking out for the interests of her soldiers, and always urging the brave and vigorous counsel. I lost a stanch friend by his death. I can sum up his qualities in no better way than by the word "manliness." He never uttered an ignoble word, thought an ignoble thought, or did an ignoble act. His method of speech was clear, simple, spirited, without much pathos or emotion, but still calculated to stir and move his hearers.

I had more intimate relations with Judge Thomas L. Nelson than with any other member of the Worcester Bar except those with whom I formed a partnership. We were never in partnership. But after I went to Congress in 1869, he moved into my office until his appointment to the Bench. So when I was at home we were in the same room. He had been accustomed for a long time before to employ me to assist him in important trials before the jury and in arguments before the Supreme Court. I suppose I am responsible for his appointment to the District Court, although the original suggestion was not mine. After the death of Judge Shepley, there was a general expectation that Judge John Lowell, of the District Court, would be made Circuit Judge. One morning one of the Boston papers suggested several names for the succession, among them that of Mr. Knowlton, of Springfield, and Mr. Nelson. I said nothing to him. But he observed: "I see in a paper that I am spoken of as District Judge." I replied: "Yes, I saw the article." Neither of us said anything further on the subject. When I got to Washington I met Mr. Devens, then Attorney-General, who said, "We shall have to appoint a District Judge, I suppose. I think your friend Nelson is the best man for it. But I suppose he would not accept it." I said: "No, I don't believe he would accept it. But, if you think he is the best man for it, the question whether he will accept it ought to be determined by him, and not by his friends for him." I had no thought that Mr. Nelson would leave his practice for the Bench. But I thought it would be a very agreeable thing to him to have the offer. I wrote to him a day or two afterward that I thought it likely he would be offered the place. He answered by asking me, if it were to be offered to him, how much time would be given to him to consider the matter. Soon after I was informed by Attorney-General Devens that the President had offered him the place on the Circuit Bench, and that he very much desired to accept it. But he thought that, although the President had put the place at his disposal, he was very unwilling to have any change in the Cabinet, and doubted whether he ought to accept the offer unless he were very sure the President was willing to spare him. One day soon after, President Hayes sent for me to come to see him. I called at the Attorney- General's office, told him the President had sent for me, and that he probably wished to speak about the Circuit Judgeship, and I wanted to know what he would like to have me say. Devens said that he should prefer that way of spending the rest of his life to any other. But the President had done him a great honor in inviting him to his Cabinet, and he did not wish to leave him unless he were sure that the President was willing. I went to the White House. When President Hayes opened the subject, I told him what was the Attorney-General's opinion. The President said that if he could be sure that were true, it would relieve his mind of a great burden. I told him he could depend on it. The President said he did not know anybody else whom he should be as willing to have in his Cabinet as Devens, unless I myself would consent to accept the place. He gave a little friendly urging in that direction. I told him that I had lately been elected to the Senate after a considerable controversy, and that I did not think I could in justice to the people of the State make a vacancy in the office which would occasion a new strife. I called on Devens on my way back, and reported to him what the President had said. He immediately went to the White House, and they had a full understanding, which resulted in Devens keeping his place in the Cabinet through the Administration.

It was then suggested that while Judge Lowell was a most admirable District Judge, and in every way an admirable lawyer, yet that it would be better if it were possible to get one of the leaders of the Bar, who would supply what Judge Lowell lacked—the capacity for charging juries on facts, and presiding at jury trials, and to leave him in the District Court, where his services were so valuable. The office of Circuit Judge was accordingly offered to Mr. William G. Russell. I wrote to Nelson, asking him to consider my first letter on the subject as not having been written. Mr. Russell replied, declining the place, and saying, with great emphasis that he was sorry the President should hesitate a moment about offering the place to Judge Lowell, whom he praised very highly. But the President and the Attorney-General thought that it should be offered to Mr. George O. Shattuck, a very eminent lawyer and advocate. On inquiry, however, it turned out that Mr. Shattuck, who was in poor health, was absent on a journey, and it was so unlikely that he would accept the offer that it was thought best not to diminish the value and honor to Judge Lowell of the place by offering it further to another person. Accordingly the place was offered to Judge Lowell and accepted by him.

General Devens than said to me: "I have been thinking over the matter of the District Judge, and I think if a man entirely suitable can be found in the Suffolk Bar, that the appointment rather belongs to that Bar, and I should like, if you have no objection, to propose to the President to offer it to Mr. Charles Allen." Mr. Allen was later Judge of the Supreme Court of Massachusetts. I assented, but said: "If Mr. Allen refuses it, I hope it will then be offered to Mr. Nelson, in accordance with your original opinion." The Attorney- General agreed. The offer was made to Mr. Allen, and by him declined. When the letter of refusal came, the Attorney- General and I went together to the White House and showed the President the letter. In the meantime a very strong recommendation of Mr. Oliver Wendell Holmes, Jr., now of the Supreme Court, had been received by the President. He felt a good deal of interest in Holmes. I think they had both been wounded in the same battle. But, at any rate, they were comrades. The President then said: "I rather think Holmes is the man." I then gave him my opinion of Mr. Nelson, and the President said to Devens: "Do you agree, Mr. Attorney-General?" Devens said: "I do." And the President said: "Then Nelson be it." Mr. Nelson, to my surprise, accepted the appointment.

Judge Nelson was a master of equity and bankruptcy. No doctrine was too subtle or abstruse for him. The matter of marshalling assets, or the tacking of mortgages, and such things which require a good deal of the genius of the mathematician, were clear in his apprehension. He was one of the two or three men in the State who ever understood the complications of the old loan-fund associations. He was especially a master of legal remedies. He held on like a bull-dog to a case in the justice of which he believed. When you had got a verdict and judgment in the Supreme Court against one of Nelson's clients, he was just ready to begin work. Then look out for him. He had with this trait also a great modesty and diffidence. If anybody put to him confidently a proposition against his belief, Nelson was apt to be silent, but, as Mr. Emerson said of Samuel Hoar, "with an unaltered belief." He would come out with his reply days after. When he came to state the strong point in arguing his case, he would sink his voice so it could hardly be heard, and look away like a bashful maiden giving her consent. Judge Bigelow told me, very early in Nelson's career, that he wished I would ask my friend to make his arguments a little longer, and to raise his voice so the court could hear him better. They always found his arguments full of instruction, and disliked to lose anything so good a lawyer had to say. His value as a Judge was largely in consultation and in his sound opinions. I suppose that, like his predecessor, Judge Lowell, he was not the very best of Judges to preside at jury trials, or to guide juries in their deliberations. Indeed, Nelson had many of the intellectual traits—the same merits and the same defects that Lowell had. Lowell was a man of great wit, and a favorite with the Boston Bar when he was appointed. So they made the best of him. They were not inclined to receive Nelson's appointment very graciously. It was some years before he established a high place in their confidence and esteem. But it was established before his death. Gray and Putnam and Webb, all in their way lawyers of the first class, found Nelson a most valuable and acceptable associate, and have all spoken of him in most enthusiastic terms. He was a good naturalist. He knew the song-birds, their habits, and dwelling-places. He knew all the stars. He liked to discuss difficult and profound questions of public policy, constitutional law, philosophy, and metaphysics. Sometimes, when I came home from Washington after a period of hard work, if I happened to find Nelson in the cars when I went to Boston, it was almost painful to spend an hour with him, although his conversation was very profound and interesting. But it was like attempting to take up and solve a difficult problem in geometry. I was tired, and wanted to be humming a negro melody to myself. He was a man of absolute integrity, not caring whether he pleased or displeased anybody. He had a good deal of literary knowledge, was specially fond of Emerson, and knew him very thoroughly, both prose and verse. He had a good deal of wit, one of the brightest examples of which I will not undertake to quote here. He was a civil engineer in his youth, and was always valuable in complicated questions of boundary, or cases like our sewer and water cases, which require the application of practical mathematics. He was a friendly and placable person so far as he was concerned himself, but resented, with great indignation, any unkindness toward any of his friends or household. His friend and associate, Judge Webb, after his death spoke with great beauty and pathos of Nelson's love of nature and of his old county home:

"When, in later years, he revisited the scenes of his childhood, he made no effort to conceal his affection for them; as he wandered among the mountains and along the valleys, so dearly remembered, his eye would grow bright, his face beam with pleasure, and his voice sound with the tone of deep sensibility. He grew eloquent as he described the beauty spread out before him, and lovingly dwelt on the majesty and grandeur of the mountain at the foot of which his infancy was cradled. It was high companionship to be with him at such times. His ear was open to catch the note of every bird, which came to him like voices of well-beloved friends; he knew the brooks from their sources to their mouths, and the rivers murmured to him the songs they sang in the Auld Lang Syne. But deep as was the joy of these visits, they did not allure him from the more rugged paths of labor and duty."

The wisdom of Nelson's selection, if it need vindication, is abundantly established by the memorial of him reported by a committee, of which Lewis S. Dabney was chairman, and adopted by the Suffolk Bar. The Bar, speaking of the doubt expressed in the beginning by those who feared an inland lawyer on the Admiralty Bench, goes on to say:

"Those who knew him well, however, knew that he had been a successful master and referee in many complicated cases of great importance; that his mathematical and scientific knowledge acquired in his early profession as an engineer was large and accurate, and would be useful in his new position; that he who had successfully drawn important public acts would be a successful interpreter of such acts; that always a student approaching every subject, not as an advocate but as a judicial observer, he would give that attention to whatever was new among the problems of his judicial office that would make him their best master and interpreter, and that what in others might be considered weakness or indolence was but evidence of a painful shrinking from displaying in public a naturally firm, strong, earnest and persistent character, a character which would break out through the limitations of nature whenever the occasion required it.

"Those who, as his associates upon the Bench, or as practitioners before him at the Bar, have had occasion to watch his long and honorable career, now feel that the judgment of his friends was the best and that his appointment has been justified; and those who have known him as an Associate Justice of the Circuit Court of Appeals have felt this even more strongly."

Another striking figure of my time was Horace Gray. He was in the class before me at Harvard, though considerably younger. I knew him by sight only in those days. He was very tall, with an exceedingly youthful countenance, and a head that looked then rather small of so large-limbed a youth—rather awkward in his gait and bearing. But after he reached manhood he grew into one of the finest-looking men of his time. I believe he was the tallest man in Boston. He expanded in every way to a figure which corresponded to his stately height. He was the grandson of the famous William Gray, the great merchant and ship-owner of New England, who was an important figure in the days just preceding and just following the War of 1812. Many anecdotes are still current of his wise and racy sayings. His sons inherited large fortunes and were all of them men of mark and influence in Boston. Francis C. Grey, the Judge's uncle, was a man of letters, a historical investigator. He discovered the priceless Body of Liberties of 1641, which had remained unprinted from that time, although the source from which our Bill of Rights and constitutional provisions had been so largely drawn.