Autobiography of Seventy Years Part 15

Somebody started the cry, "h.o.a.r! h.o.a.r!" My father and brother were known as leaders in the Free Soil Party, and that I suppose made somebody call on me. I got up in my place in the middle of the hall in great confusion. There were shouts of "platform,"

"platform." I made my way to the platform, hoping only to make my excuses and get off without being detected. But the people were disposed to be good-natured, and liked what I said. Dr. Stone, the famous stenographic reporter, was present and took it down. It was printed in the Free Soil papers, and from that time I was in considerable demand as a public speaker. The coalition between the Free Soilers and Democrats carried the State of Ma.s.sachusetts that year and elected Sumner Senator and Boutwell Governor. The next year Worcester failed to elect her representatives to the Legislature, which were voted for all on one ticket and required a majority, and there was to be a second election on the fourth Monday of November.

There was a delegate convention to nominate representatives, of which I was a member. When the vote was announced, to my surprise and consternation, I was one of the persons nominated.

n.o.body had said a word to me about it beforehand. That was Friday night. I told the Convention I could not accept such a nomination without my father's approval. I was then twenty- five years old. It was proposed that the Convention adjourn until the next evening, and that meantime I should go down to Concord and see if I could get my father's leave. Accordingly the Convention adjourned to see if the infant candidate could get permission to accept. My father told me he thought that to go to the Legislature once would be useful to me in my profession; I should learn how laws were made, and get acquainted with prominent men from different parts of the State. So he advised me to accept, if I would make up my mind that I would go only for one year, and would after that stick to the law, and would never look to politics as a profession or vocation. I accepted the nomination, was elected, and was made Chairman of one of the Law Committees in the House.

I declined a reelection and devoted myself to my profession, except that I served in the Ma.s.sachusetts Senate one year, 1857, being nominated unexpectedly and under circ.u.mstances 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 Ma.s.sachusetts 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 a.s.serted 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 Const.i.tutional 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 Ma.s.sachusetts. 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 circ.u.mstances 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 pa.s.s 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 Inst.i.tute, 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 Ma.s.sachusetts Legislature, on a pet.i.tion 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.

The Worcester Lyceum, which furnished the princ.i.p.al course of lectures in the city in those days, was in the hands of some very worthy and conservative old Whigs. They would not permit any politics or religion, or what was called Radicalism, either in religious or social matters, to be discussed on their platform. So we had to listen to very respectable and worthy, but rather dull and tame conservative gentlemen, or stay away, as we preferred. A few of the young men, of whom I was one, conspired to get possession of the Lyceum. They turned out in force for the election of officers, chose me President, and we got Wendell Phillips and Theodore Parker and Ralph Waldo Emerson and other s.h.i.+ning lights of a newer philosophy, much to the indignation of the old Whig magnates.

But the lectures were very successful, and at the end of my Presidency, which lasted two or three years, we had an ample balance in our treasury.

If I were to give an account of my professional life for twenty years, I must make another book. It was full of interest and romance. The client in those days used to lay bare his soul to his lawyer. Many of the cases were full of romantic interest. The lawyer followed them as he followed the plot of an exciting novel, from the time the plaintiff first opened his door and told his story till the time when he heard the sweetest of all sounds to a lawyer, the voice of the foreman saying: "The jury find for the plaintiff." Next to the "yes,"

of a woman, that is the sweetest sound, I think, that can fall on human ears.

I used to have eighteen or twenty law cases at the fall term each year. The judges gave their opinions orally in open Court, and the old judges like Shaw and Metcalf, used to enliven an opinion with anecdotes or quaint phrases, which lent great interest to the scene. If Walter Scott could have known and told the story of the life of an old Ma.s.sachusetts lawyer from the close of the Revolution down to the beginning of the Rebellion, there is nothing in the great Scotch novels which would have surpa.s.sed it for romance and for humor.

I think I may fairly claim that I had a good deal to do with developing the equity system in the courts of Ma.s.sachusetts, and with developing the admirable Insolvency system of Ma.s.sachusetts, which is substantially an equity system, from which the United States Bankruptcy statutes have been so largely copied.

The great ma.s.s of the people of Ma.s.sachusetts, Whigs and Democrats as well as Republicans, were loyal and patriotic and full of zeal when the war broke out. A very few of the old Whigs and Democrats, who were called "Hunkers" or "Copperheads,"

sympathized with the Rebellion, or if they did not, were so possessed with hatred for the men who were putting it down that they could find nothing to approve, but only cause for complaint and faultfinding. Andrew, the Governor, Sumner and Wilson, the Senators, most of the members of Congress, most of the leaders in the Legislature and in the military and political activities, were of the old Free Soil Party.

There was a feeling, not wholly unreasonable, that the old Whigs had been somewhat neglected, and that their cooperation and help were received rather coldly. This feeling led to the movement, called the People's Party, which begun at a large public meeting in Cambridge, where my dear old friend and partner, ex-Governor Washburn, was one of the speakers.

That party called a State Convention and nominated Charles Devens for Governor. Devens had been an old Whig. He had become a Republican in 1856, and had been one of the earliest to enlist in the War, in which he became afterward the most famous Ma.s.sachusetts soldier. He was a man of spirit, very affectionate and generous, always ready to stand by his friends, especially if he suspected that anybody had treated them unjustly.

The People's Party sent a Committee to the seat of war in September, 1862. The Committee found Devens in his tent, repeated to him the plans of his old Whig friends, and induced him to accept the nomination of the People's Party for Governor.

I was called to the battlefield of Antietam, where a near kinsman of mine had been mortally wounded, just about the same time. I entered Devens's tent just as this Committee was leaving it with his written acceptance in their hands.

I told him the other side of the story, told him how the whole people were alive with enthusiasm, and that Governor Andrew was doing the very best possible, and that these petty jealousies, while there was some little reason for them, ought not to affect the public action of the people. Devens regretted very much what he had done. He told me that if he could recall the letter, he would do it. But it was too late.

Governor Andrew was triumphantly reelected, and Devens was ever after an earnest and loyal Republican.

CHAPTER X POLITICAL HISTORY OF Ma.s.sACHUSETTS FROM 1848 TO 1869

In 1848, the Free Soil Party in Ma.s.sachusetts nominated candidates for State officers. It was made up of Whigs, Democrats and members of the Liberty Party. It had made no distinct issue with the Whig Party upon matters of State administration.

Governor Briggs, the Whig Governor, was a wise and honest Chief Magistrate, highly respected by all the people. But the Free Soil leaders wisely determined that if they were to have a political party, they must have candidates for State officers as well as National. It is impossible to organize a political party with success whose members are acting together in their support of one candidate and striving with all their might against each other when another is concerned. My father was urged to be the Free Soil candidate for Governor. Charles Francis Adams and Edmund Jackson visited him at Concord to press it upon him as a duty. Charles Allen wrote him an earnest letter to the same effect. But he was an old friend of Governor Briggs and disliked very much to become his antagonist. He looked to the Whig Party for large accessions to the Free Soil ranks. A large plurality of the people of the community were still devoted to that party. He doubted very much the wisdom of widening the breach between them by a conflict on other questions than that of slavery. So he refused his consent.

Stephen C. Phillips, an eminent Salem merchant, and a former Member of Congress, was nominated. The result was there was no choice of State officers by the people, and the election of the Whig candidates was made by the Legislature.

The next year it occurred to the leaders of the Free Soil and Democratic Parties that they had only to unite their forces to overthrow the Whigs. The Free Soil leaders thought the effect of this would be the eventual destruction of the Whig Party at the North,--as afterward proved to be the case,-- and the building up in its place of a party founded on the principle of opposition to the extension of slavery. So in 1849 there was a coalition between the Free Soil and the Democratic Parties in some counties and towns, each supporting the candidates of the other not specially obnoxious to them, neither party committing itself to the principles of the other party or waiving its own. In the fall of the next year, 1850, this policy was pursued throughout the State and resulted in the election by the Legislature of a Democratic Governor, Mr.

Boutwell, and of Charles Sumner as the successor of Daniel Webster in the Senate. The experiment was repeated with like success in the fall of 1851.

These two parties had little in common. They could not well act together in State matters without some principle or purpose on which they were agreed other than mere desire for office and opposition to the Whig Party. They found a common ground in the support of a law providing for secrecy in the ballot.

There had been great complaint that the manufacturers, especially in Lowell, who were in general zealous Whig partisans, used an undue influence over their workmen. It was said that a man known to be a Democrat, or a Free Soiler, was pretty likely to get his discharge from the employ of any great manufacturing corporation that had occasion to reduce its force, and that he would have no chance to get an increase of wages. I do not now believe there was much foundation for this accusation.

But it was believed by many people at the time. So a law requiring secrecy in the ballot was framed and enacted in spite of great resistance from the Whigs. This has undoubtedly proved a good policy, and has prevailed in Ma.s.sachusetts ever since, and now prevails largely throughout the country.

But this one measure was not enough to hold together elements otherwise so discordant. So the Democratic and Free Soil leaders agreed to call a convention to revise the Const.i.tution of the Commonwealth, which had remained unchanged save in a few particulars since 1780. There had been a Convention for that purpose in 1820, made necessary by the separation of Maine. But the old Const.i.tution had been little altered.

The concentration of the population in large towns and cities had caused a demand for a new distribution of political power.

Many people desired an elective judiciary. Others desired that the judges should hold office for brief terms instead of the old tenure for life. There was a great demand for the popular election of Sheriffs and District Attorneys, who under the existing system were appointed by the Governor.

Others desired the choice of Senators, who had before been chosen by the several counties on a joint ticket, by single districts. A proposition for a Convention was submitted to the people by the Legislature of 1851. But the people were attached to the old Const.i.tution. There was a special dread of any change in the independent tenure of the judiciary.

So although the coalition had a majority in the State the proposition for a Const.i.tutional Convention was defeated.

The scheme was renewed the next year in the Legislature of 1852, of which I was a member. Several of the Free Soilers, among which I was included, were unwilling to have the matter tried again without a distinct a.s.surance that there should be no meddling with the judiciary. This a.s.surance was given in the report of a joint committee of the Legislature to whom the matter was committed, consisting of the leaders of the Democratic and Republican parties, who reported that there was no purpose to change the judicial tenure with which the people were well satisfied. Accordingly I voted for it. The measure got a bare majority in the House which it would never would have had without that stipulation. The plan was submitted to the people again with a proposition that the choice of delegates to the Const.i.tutional Convention should be by secret ballot. The people approved the plan by a substantial majority.

I have no doubt that the pledge above mentioned was made in good faith and that the men who made it meant to keep it.

But before the Convention met two things happened which changed the conditions. The coalition was wrecked. There were two causes for its overthrow. One of them was the appointment by Governor Boutwell of Caleb Cus.h.i.+ng to a seat on the Supreme Bench of Ma.s.sachusetts. General Cus.h.i.+ng was a man of great accomplishment, though never a great lawyer. He could collect with wonderful industry all the facts bearing on any historic question and everything that had been said on either side of any question of law. But he never had a gift of cogent argument that would convince any judge or jury. He owed his success in life largely to the personal favor of men who knew him and were charmed by his agreeable quality. He was regarded by the people of Ma.s.sachusetts as a man without moral convictions and as utterly subservient to the slave power.

So his appointment was a great shock to the Anti-Slavery men and made them believe that it was not safe to put political power in Democratic hands. General Cus.h.i.+ng vindicated this opinion afterward by the letter written when he was Attorney- General in the Cabinet of President Pierce declaring that the Anti-Slavery movement in the North "must be crushed out,"

and also by a letter written to Jefferson Davis after the beginning of the Rebellion recommending some person to him for some service to the Confederacy. The discovery of this letter compelled President Grant who had been induced to nominate him for Chief Justice to withdraw the nomination. The other cause was the pa.s.sage of the bill for the prohibition of the manufacture and sale of intoxicating liquors, known as the Maine law. This measure had pa.s.sed the Legislature, containing a provision for its submission to the people. It was vetoed by Governor Boutwell. The reason a.s.signed by him was his objection to the provision for its submission to the people, without the secret ballot. The referendum, a scheme by which men charged with political duties avoid responsibility by submitting to the people measures which they fear may be unpopular, --has never found much favor in Ma.s.sachusetts. After many changes of sentiment, and after pa.s.sing, modifying, and repealing many laws, the people of the Commonwealth seem to have settled down on a policy which permits each town or city to decide by vote whether the sale of liquor shall be permitted within their limits. The bill was then pa.s.sed, without the reference to the people. But the measure sealed the fate of the coalition.

Some of its provisions, especially that for seizing and destroying stocks of liquor kept for sale in violation of law, were very severe, and were held unconst.i.tutional by the Court. The liquor sellers, almost all of them, were Democrats. They would not readily submit to a law which made their calling criminal.

So the Whigs were restored to power by the fall election in 1852. Their heads were turned by their success. They did not quite dare to repeal the law providing for a Const.i.tutional Convention, but they undertook to repeal so much of it as required that the choice of delegates should be by secret ballot. The minority resisted this repeal with all their might. They alleged with great reason that it was not decent for the Legislature to repeal a provision which the people has expressly approved. But their resistance was in vain, and after a long and angry struggle which stirred the people of the Commonwealth profoundly the provision for the secret ballot was abrogated. But the result of the contest was that the Whigs were routed at the special election for delegates to the Convention. That body was controlled by the Coalition by a very large majority. Their triumph made them also lose their heads.

So when the Convention a.s.sembled in 1853, they disregarded the pledges which had enabled them to get the a.s.sent of the people to calling the convention, and provided that the tenure of office of the Judges of the Supreme Court should be for ten years only, and that the Judges of Probate should be elected by the people of the several counties once in three years.

It is said, and, as I have good reason to know, very truly, that this action of the Convention was taken in consequence of a quarrel in Court between the late Judge Merrick and General Butler and Mr. Josiah G. Abbott, two eminent leaders of the Democrats, members of the Convention. They had neither of them agreed to the proposition to change the judicial tenure.

They were absent from the convention for several days in the trial of an important cause before Merrick, and returned angry with the Judge and determined to do something to curb the independent power of the Judges. The proposition was adopted.

These schemes were a distinct violation of the pledge which had been given when the Legislature submitted to the people the proposition for calling the Convention. Of course it was a fair answer to this complaint to say that the members of the committee who made that report could in such a matter bind n.o.body but themselves. That was true. But I think if the men who signed that report, and the men who joined them in giving the a.s.surance to the people, had been earnest and zealous in the matter it is quite likely they could have prevented the action of the Convention.

The scheme for a new const.i.tution pa.s.sed the Convention by a large majority and was submitted to the people. The Whig leaders, who seemed to have had all their wisdom and energy taken out of them when the Free Soilers left them, were much alarmed by the strength of the discontent with the existing order of things manifested by the coalition victory in the election of the Const.i.tutional Convention. Many of them concluded that it would be unwise to resist the popular feeling. One Sat.u.r.day afternoon during that summer I was in the office of Francis Wayland, a great friend of mine, long Dean of the New Haven Law School, when Henry S. Washburn, a member of the Whig State Central Committee, came into Wayland's office and told me he had just attended a meeting of the Committee that day and that it determined to make no contest against the new Const.i.tution. The Springfield _Republican,_ then a Whig journal, had an article that day, or the following Monday, to the same effect. I was very much disturbed. I hurried to Concord by the first train Monday morning, and saw my brother, who was then a Judge of the Court of Common Pleas. He agreed with me in thinking that the proposed scheme of government a very bad one. He went at once to Cambridge and saw John G. Palfrey, a very able and influential leader of the Free Soilers. Mr. Palfrey agreed that the Const.i.tution ought to be defeated, if possible. Judge h.o.a.r and he sat down together and prepared a pamphlet, the Judge furnis.h.i.+ng all the legal argument and Mr. Palfrey the rest, clothing it all in his inimitable style. It was published under Dr.

Palfrey's name. Judge h.o.a.r, being then upon the bench, did not think it becoming to take any more public action in the matter, although he made his opinion known to all persons who cared to know it. Charles Francis Adams and Marcus Morton also made powerful arguments on the same side. My father, Samuel h.o.a.r, also made several speeches against the Const.i.tution.

At this defection of so many Free Soilers the Whig leaders took heart and made a vigorous and successful resistance.

The result was that the people voted down the whole const.i.tution.