Autobiography of Seventy Years, Vol. 1-2

by George Frisbie Hoar

Next to Judge Wilde in seniority upon the Bench among the associate Judges was Mr. Justice Charles A. Dewey of Northampton. He had had a good deal of experience as a prosecuting attorney in a considerable general practice in the western part of the State. He was careful in his opinions never to go beyond what was necessary for the case at bar. It is said that there is no instance that any opinion of his was ever overruled in a very long judicial service.

Judge Dewey was a man of absolute integrity and faithful in the discharge of his judicial duty. He had no sentiment and, so far as I ever knew, took little interest in matters outside of his important official duties. He was very careful in the management of property. When the Democrats were in power in Massachusetts in 1843 they reduced the salaries of the Judges of the Supreme Court in violation of the Constitutional provision. Chief Justice Shaw refused to touch a dollar of his salary until the Legislature the next year restored the old salary and provided for the payment of the arrears. Judge Dewey held out for one quarter. But the next quarter he went quietly to the State House, drew his quarter's salary, went down on to State Street and invested it, and did the same every quarter thereafter.

In the days of my early practice the Supreme Court used to sit in Worcester for about five or six weeks, beginning in April. It had exclusive jurisdiction of real actions, and limited equity jurisdiction. All suits where the matter in issue was more than three hundred dollars might be brought originally in that court or removed there by the defendant from the Common Pleas if the plaintiff began it below. So the court had a great deal of business. It also had jurisdiction of divorce cases, appeals from the Probate Court and some special writs such as habeas corpus, certiorari and mandamus. But after all, the old Court of Common Pleas was the place where the greater part of the law business of the county was transacted. There were at first four civil terms in the year, and, after Fitchburg became a half shire, there were two more terms held there. The Common Pleas had jurisdiction of all crimes except capital.

There were some very interesting characters among the old Judges of the Common Pleas. Among the most remarkable was Judge Edward Mellen, who was first side Judge and afterward Chief Justice. He was a man of great law-learning, indefatigable industry and remarkable memory for cases, diffuse and long- winded in his charges, and apt to take sides. He took everything very seriously. It is said that he would listen to the most pathetic tale of human suffering unmoved, but would burst into tears at the mention of a stake and stones or two chestnut staddles.

Mellen with the other Judges of the old Common Pleas Court was legislated off the Bench by the abolition of that court in 1858. He moved from Middlesex to Worcester and resumed practice, but was never largely employed. He was a repository of the old stories of the Middlesex Bar, many of which died with him.

A Lowell lawyer told me this story of Judge Mellen. My informant had in his office a law student who spent most of his time in reading novels and poetry and writing occasionally for the newspapers. He was anxious to get admitted to the Bar and had crammed for the examination. In those days, unless the applicant had studied three years, when he was admitted as of course, the Judge examined him himself. The Judge was holding court at Concord, and an arrangement was made that the youngster should go to the Judge's room in the evening and submit himself to the examination. He kept the appointment, but in about ten minutes came out. My informant, who had recommended him, asked him what was the matter. He said he didn't know. The Judge had asked him one question only. He was sure he answered it right, but the Judge immediately dismissed him with great displeasure. The next morning the lawyer went up to Judge Mellen in court and said, "Judge, what was the matter with the young man last night? Did you not find him fitted?"

"Fitted?" said the Judge. "No sir. I asked him what was the rule in Shelley's Case, and he told me the rule in Shelley's Case was that when the father was an atheist the Lord Chancellor would appoint a guardian for his children."

"Ah," was the reply. "I see. The trouble is that neither of you ever heard of the other's Shelley."

Judge Byington of Stockbridge in Berkshire used to come to Worcester a great deal to hold the old Common Pleas Court. He was an excellent lawyer and an excellent Judge—dry, fond of the common law, and of black letter authorities. He had a curious habit of giving his charge in one long sentence without periods, but with a great many parentheses. But he had great influence with the juries and was very sound and correct in his law. I once tried a case before him for damages for the seizure of a stock of liquors under the provisions of the Statute of 1852, known as the Maine Liquor Law, which had been held unconstitutional by the Supreme Court. He began: "The Statute of 1852 chapter so-and-so gentlemen of the jury commonly known as the Maine Liquor Law which has created great feeling throughout this Commonwealth some very good men were in favor of it and some very good men were against it read literally part of it would be ridiculous and you may take your seats if you please gentlemen of the jury I shall be occupied some time in my charge and I do not care to keep you standing and some of it would be absurd and some of it reads very well." And so on.

A neighbor of Judge Byington from Berkshire County was Judge Henry W. Bishop of Stockbridge. He was an old Democratic politician and at one time the candidate of his party for Governor. He was not a very learned lawyer, but was quick- witted and picked up a good deal from the arguments of counsel. Aided by a natural shrewdness and sense, he got along pretty well. He had a gift of rather bombastic speech. His exuberant eloquence was of a style more resembling that prevalent in some other parts of the country than the more sober and severe fashion of New England. Just before he came to the Bench he was counsel in a real estate case in Springfield where Mr. Chapman, afterward Chief Justice of the Supreme Court, was on the other side. The evidence of recent occupation and the monuments tended in favor of Chapman's client. But it turned out that the one side had got a title under the original grant of the town of Blandford, and the other under the original grant of an adjoining town, and that the town line had been maintained from the beginning where Bishop claimed the true line to be. When he came to that part of the case, he rose mightily in his stirrups. Turning upon Chapman, who was a quiet, mild-mannered old gentleman, he said: "The gentleman's eyes may twinkle like Castor and Pollux, twin stars; but he can't wink out of sight that town line of Blandford. He may place one foot on Orion and the other on Arcturus, and seize the Pleiades by the hair and wring all the water from their dripping urns; but he can't wash out that town line of Blandford." The local newspaper got hold of the speech and reported it, and it used to be spoken occasionally by the school boys for their declamation. Bishop is said to have been much disturbed by the ridicule it created, and to have refused ever to go to Springfield again on any professional employment.