Autobiography of Seventy Years, Vol. 1-2

by George Frisbie Hoar

He went almost through his weighty discourse without much effect upon his auditors other than that which Emerson so well described. But the wind changed before he finished, and blew toward the other quarter where the boys stood; and he almost lifted them from their feet as his great organ tones rolled out his closing sentences:

"And when both we and our children shall have been consigned to the house appointed for all living, may love of country and pride of country glow with equal fervor among those to whom our names and our blood shall have descended! And then, when honored and decrepit age shall lean against the base of this monument, and troops of ingenuous youth shall be gathered around it, and when the one shall speak to the other of its objects, the purposes of its construction, and the great and glorious events with which it is connected, there shall rise from every youthful breast the ejaculation, 'Thank God, I also—AM AN AMERICAN!'"

Mr. Webster came to Concord in the summer of 1843 as counsel for William Wyman, President of the Phoenix Bank of Charlestown, who was indicted for embezzling the funds of the bank. This was one of the causes celebres of the day. Wyman had been a business man of high standing. Such offences were rare in those days, and the case would have attracted great attention whoever had been for the defence. But the defendant's counsel were Daniel Webster, Rufus Choate, Franklin Dexter, and my brother, E. R. Hoar, a young man lately admitted to the bar. Mr. Webster, notwithstanding his great fame as a statesman, is said never to have lost his eager interest in causes in which he was retained. When he found himself hard pressed, he put forth all his strength. He was extremely impatient of contradiction. The adulation to which he had been so long accustomed tended to increase a natural, and perhaps not wholly unjustifiable, haughtiness of manner.

The Government was represented by Asahel R. Huntington, of Salem, District Attorney for the district which included Essex and Middlesex. He was a man of great intellectual vigor, unquestioned honesty and courage, possessed of a high sense of the dignity and importance of his office, very plain spoken, and not at all likely to be overawed by any opposing counsel, whatever his fame or dignity. Yet he had a huge reverence for Daniel Webster, whom, like the other Massachusetts Whigs of that day, he probably thought as another described him—

The foremost living man of all the world!

The case was tried three times: The first time at Concord, the second time at Lowell, and the third time at Concord. Mr. Webster had several quite angry encounters with the court and with the prosecuting attorney. He was once extremely disrespectful to Judge Washburn, who replied with great mildness that he was sure the eminent counsel's respect for his own character would be enough to prevent him from any disrespect to the court. Mr. Webster was disarmed by the quiet courtesy of the judge, and gave him no further cause for complaint. At Lowell, where Wyman was convicted, Webster saw the case going against him, and interrupted the charge of the judge several times. At last Judge Allen, who was presiding, said: "Mr. Webster, I cannot suffer myself to be interrupted." Mr. Webster replied: "I cannot suffer my client to be misrepresented," To which the judge answered: "Sit down, sir." Mr. Webster resumed his seat. When the jury went out, Judge Allen turned to the Bar where Mr. Webster was sitting and said: "Mr. Webster." Mr. Webster rose with the unsurpassed courtesy and grace of manner of which he was master, and said: "Will the court pardon me a moment?" He then proceeded to express his regret for the zeal which had impelled him to a seeming disrespect to His Honor, and expressed his sorrow for what had occurred; and the incident was at an end.

At the first trial at Concord, Mr. Webster had frequent altercations with District Attorney Huntington. In his closing argument, which is said to have been one of great power, and which he began by an eloquent reference to the battle of Concord Bridge, which, he said, was fought by Concord farmers that their children might enjoy the blessings of an impartial administration of justice under the law, he said that it was unlikely that Wyman could have abstracted large sums from the bank and no trace of the money be found in his possession. He was a man of small property, living simply and plainly, without extravagant habits or anything which would have been likely to tempt him to such crime. When Huntington came to reply he said, very roughly: "They want to know what's become of the money. I can tell you what's become of the money. Five thousand dollars to one counsel, three thousand dollars to another, two thousand to another," waving his hand in succession toward Webster and Choate and Dexter. Such fees, though common enough now, seemed enormous in those days. Choate smiled in his peculiar fashion, and said nothing; Franklin Dexter looked up from a newspaper he was reading, and exclaimed: "This is beneath our notice"; but Mr. Webster rose to his feet and said with great indignation: "Am I to sit here to hear myself charged with sharing the spoils with a thief?" The presiding judge said: "The counsel for the Government will confine himself to the evidence." That was all. But Mr. Webster was deeply incensed. The jury disagreed. Mr. Webster came to the next trial prepared with an attack on Huntington, in writing, covering many pages, denouncing his method and conduct. This he read to my brother. But Huntington who, as I have said, adored Webster, was unwilling to have another encounter— not in the least from any dread of his antagonist, but solely from his dislike to have a quarrel with the man on earth he most reverenced. Accordingly, Mr. Wells, the District Attorney of Greenfield, was called in, who conducted the trial at Lowell and succeeded in getting a conviction. My brother, who was very fond of Huntington, took an occasion some time afterward to tell Mr. Webster how much Huntington regretted the transaction, and how great was his feeling of reverence and attachment for him. Mr. Webster was placated, and afterward, when an edition of his speeches was published, sent a copy to Huntington with an inscription testifying to his respect.

The general reader may not care for the legal history of the trial, but it may have a certain interest for lawyers. Mr. Wyman was indicted for embezzlement of the funds of the bank under the Revised Statutes of Massachusetts, which provided that "if any cashier or other officer, agent or servant of any incorporated bank shall embezzle or fraudulently convert to his own use the property of the bank, he shall be punished," etc. It was earnestly contended that a president of a bank was not an officer within the meaning of the statute; but this contention was overruled by the presiding judge, who was sustained in that view by the Supreme Court on exception. There was, however, no such offence as embezzlement known to the common law. So a person who fraudulently converted to his own use the property of another could only be convicted of larceny; and the offence of larceny could not be committed where the offender had been entrusted with the possession of the property converted, the essence of larceny being the felonious taking of the property from the possession of the owner. Further, nobody could be convicted of larceny except on an indictment or complaint which set forth the time and place of each single conversion. So, if a servant or agent appropriated the fund of his principal, the embezzlement extending over a long period of time, and it was not possible to set forth or to prove the time, place, and circumstances of any particular taking, the offender could not be convicted. The statute to which I have just referred was intended to cure both these difficulties; first, by making persons liable to punishment who fraudulently appropriated the property of others, notwithstanding they had come rightfully into possession; and next, the necessity of setting forth the particular transaction was obviated by an enactment that it should be enough to prove the embezzlement of any sum of money within six months of the time specified in the indictment.

After the conviction of Wyman, the case was carried to the Supreme Court, which held that the statute making bank officers liable included bank presidents. But the court held that the other part of the statute, providing for the mode of setting forth the offence in the indictment, did not apply to bank officers; and that they could only be held on an indictment which described the particular transaction, with time and place. So the verdict of guilty against Wyman was set aside, and a new trial ordered.

Before the new trial came on at Concord, a statute was passed by the Legislature for the purpose of meeting this very case, extending the provisions of the Revised Statutes as to the mode of pleading in such cases to officers of banks. It was claimed and argued by Mr. Choate, with great zeal, eloquence, and learning, that this was an ex post facto law, which could not, under the Constitution, be made applicable to transactions which happened before its passage. Mr. Choate argued this question for several hours. The court took time for consideration, and overruled his contention. There seemed nothing for it but to go to trial again on the facts, upon which one verdict of guilty had already been had. As they were going into the court-house in the morning, Mr. Choate said to Mr. Hoar, whose chief part in the trial, so far, had been finding law books, hunting up authorities, and taking notes of the evidence: "You made a suggestion to me at the last trial which I did not attend to much at the time; but I remember thinking afterward there was something in it." Mr. Hoar replied: "It seems to me that Wyman cannot be convicted of embezzlement unless the funds of the bank were entrusted to him. They must either have been in his actual possession or under his control. There is nothing in the office of president which involves such an authority. It cannot exist unless by the express action of the directors, or as the result of a course of business of the bank." The facts alleged against Wyman were that he had authorized the discount of the notes of some friends of his who were irresponsible, and that he had, in some way, shared the proceeds. Mr. Choate seized upon the suggestion. The Government witnesses, who were chiefly the directors of the bank, were asked in cross-examination whether they had not consented that Mr. Wyman should have the right to dispose of the funds of the bank, or to give him power or authority to dispose of them. They supposed the question was put with the intent of making them morally, if not legally, accomplices in his guilt, or of charging them with want of fidelity or gross carelessness in their office. Accordingly, each of them indignantly denied the imputation, and testified that Wyman had no power or authority to authorize the discount or to meddle with the funds. When the Government case closed, the counsel asked the court to rule that as the funds were never entrusted to the possession of Wyman he could not be convicted of embezzlement. The court so held and directed an acquittal. This is another instance, not unusual in trials in court, of the truth of the old rhyme, with which the readers of "Quentin Durward" are familiar;