Autobiography of Seventy Years, Vol. 1-2

by George Frisbie Hoar

I declined a reelection and devoted myself to my profession, except that I served in the Massachusetts Senate one year, 1857, being nominated unexpectedly and under circumstances somewhat like those which attended my former nomination. I was Chairman of the Judiciary Committee that year. I devoted all my time, day and even far into the night, to my legislative duties. I was never absent a single day from my seat in the House in 1852, and was absent only one day from my seat in the Senate, in 1857, when I had to attend to an important law suit. It so happened that there was a severe snow storm that day, which blocked up the railroads, so that there was no quorum in the Senate. I could not myself have got to the State House, if I had tried. I suppose I may say without arrogance that I was the leader of the Free Soil Party in each House when I was a member of it. In 1852 I prepared, with the help of Horace Gray, afterward Judge, who was not a member of the Legislature, the Practice Act of 1852, which abolished the common law system of pleading, and has been in principle that on which the Massachusetts courts have acted in civil cases ever since. I studied the English Factory legislation, and read Macaulay's speeches on the subject. I became an earnest advocate for shortening the hours of labor by legislation. That was then called the ten-hour system. Later it has been called the eight-hour system. I made, in 1852, a speech in favor of reducing the time of labor in factories to ten hours a day which, so far as I know, was the first speech in any legislative body in this country on that subject. My speech was received with great derision. The House, usually very courteous and orderly, seemed unwilling to hear me through. One worthy old farmer got up in his seat and said: "Isn't the young man for Worcester going to let me get up in the morning and milk my caouws."

When a member of the Senate in 1857, I was Chairman of the Judiciary Committee. I made a very earnest and carefully prepared speech against the asserted right of the jury to judge of the law in criminal cases. It is a popular and specious doctrine. But it never seemed to me to be sound. Among others, there are two reasons against it, which seem to me conclusive, and to which I have never seen a plausible answer. One is that if the jury is to judge of the law, you will have as many different laws as you have juries. There is no revision of their conclusion. They are not obliged to tell, and there is no way in which the court can know, what their opinion was. So a man tried on one side of the court-house may be held guilty, and another man tried on the other side of the court-house may be held innocent for precisely the same act.

The other reason is that the court must always decide what evidence shall be admitted. So if the jury are to be the judges of the law, one authority must determine what evidence they shall consider, and another determine what law shall be applied to it. For instance, suppose a defendant charged with homicide offers to prove certain facts which as he claims justify the killing. The Judge says these facts do not, under the law, justify the killing and excludes the evidence. That may be the real point in the case, and the jury may believe that those facts fully justify the homicide; still they cannot be permitted to hear them. It is preposterous to suppose that so logical and reasonable a system as the Common Law could ever have tolerated such an absurdity. My friend, Mr. Justice Gray of the United States Supreme Court, an admirable judge and one of the great judges of the world, in his dissenting opinion in Sparf et al. v. U. S., 156, U. S. Reports, page 51, etc., has little to say on this point, except that of course there must be some authority to regulate the conduct of trials.

I declined a reelection to the Senate. I was twice nominated for Mayor by the Republicans of Worcester, when the election of their candidate was sure; once by a Citizens' Convention, and once by a Committee authorized to nominate a candidate, and another year urged by prominent and influential citizens to accept such a nomination. But I preferred my profession. I never had any desire or taste for executive office, and I doubt if I had much capacity for it.

When Charles Allen declined reelection to Congress, in 1852, I have no doubt I could have succeeded him if I had been willing, although I was but twenty-six years old, only a year past the Constitutional age.

As I found myself getting a respectable place in the profession my early ambitions were so far changed and expanded that I hoped I might some day be appointed to the Supreme Court of the Commonwealth of Massachusetts. It seemed to me then, as it seems to me now, that there could be no more delightful life for a man competent to the service than one spent in discussing with the admirable lawyers, who have always adorned that Bench, the great questions of jurisprudence, involving the rights of citizens, and the welfare of the Commonwealth, and helping to settle them by authority. This ambition was also disappointed. I have twice received the offer of a seat on that Bench, under circumstances which rendered it out of the question that I should accept it, although on both occasions I longed exceedingly to do so.

Shortly after I was admitted to the Bar, good fortune brought me at once into the largest practice in the great County of Worcester, although that Bar had always been, before and since, one of the ablest in the country. Judge Emory Washburn, afterward Governor and Professor of Law at Harvard, and writer on jurisprudence, had the largest practice in the Commonwealth, west of Boston, and I suppose with one exception, the largest in the Commonwealth outside of Boston. He asked me to become his partner in June, 1852. I had then got a considerable clientage of my own. Early in 1853 he sailed for Europe, intending to return in the fall. I was left in charge of his business during his six months' absence, talking with the clients about cases in which he was already retained, and receiving their statements as to cases in which they desired to retain him on his return. Before he reached home he was nominated for Governor by the Whig Convention, to which office he was elected by the Legislature in the following January. So he had but a few weeks to attend to his law business before entering upon the office of Governor. I kept on with it, I believe without losing a single client. That winter I had extraordinarily good fortune, due I think very largely to the kindly feeling of the juries toward so young a man attempting to undertake such great responsibilities.

My professional life from January 1, 1850, until the 4th of March, 1869, was a life of great and incessant labor. When the court was in session I was constantly engaged in jury trials. Day after day, and week after week, I had to pass from one side of the court-house to the other, being engaged in a very large part of the important actions that were tried in those days. The Court had long sessions. The judges who came from abroad were anxious to get their work done and go back to their homes. So the Courts sat from half past eight or nine o'clock in the morning until six in the afternoon with an intermission of an hour, or an hour and a quarter, for dinner. The parties to the suits came from all over Worcester County. Frequently it was impossible to see the witnesses until the trial came on, or just before. So the lawyer had to spend his evenings and often far into the night in seeing witnesses and making other preparations for the next day. General Devens and I had at one term of the Supreme Court held by Chief Justice Bigelow twenty trial actions. The term resulted in a serious injury to my eyes and in my being broken down with overwork. So I was compelled to go to Europe the following year for a vacation.

But I found time somehow, as I have said, to keep up a constant and active interest in politics. I was also able to contribute something to other things which were going on for the benefit of our growing city. I got up the first contribution for the Free Public Library, of which I was made President. I took a great interest in the founding of the famous Worcester Polytechnic Institute, and I was the first person named in its Act of Incorporation. The first meeting of its Trustees was held in my office, and I am now the only surviving member of that Board, in which I have retained a warm interest ever since. In 1869 I made before the Massachusetts Legislature, on a petition which was successful for a legislative grant to that school, what I believe is the first public address ever made in behalf of Technical Education in this country. I was for some time President of the Board of Trustees of the City Library and while President planned the excellent reading room connected with the Library, for which I obtained a handsome endowment by personal solicitation.

I was also Trustee of Leicester Academy.