XXXVIII. SOME JUDGES I HAVE KNOWN…

XXXVIII. SOME JUDGES I HAVE KNOWN

Unquestionably the most important character in the legal history of Massachusetts is Chief Justice Lemuel Shaw. He was a great lawyer before he came to the Bench. He had written one or two very able articles for the North American Review, one of them a vigorous statement of the opinion of Massachusetts upon slavery. He was the author of a petition signed by many of the leading men of Massachusetts in opposition to the high tariff of 1828. No more powerful statement of the argument against high protection can be found. I have been surprised that the modern free-traders have not long ago discovered it, and brought it to light. He was one of the managers of the impeachment of Judge Prescott, securing a conviction against a powerful array of counsel for the defendant, which included Daniel Webster. He was consulted in difficult and important matters by eminent counsel in other counties than Suffolk.

But all these titles to distinction have been forgotten in his great service as Chief Justice of Massachusetts for thirty years. No other judicial fame in the country can rival his, with the single exception of Marshall. He was induced to undertake the office of Chief Justice very reluctantly, by the strong personal urgency of Mr. Webster. Mr. Webster used to give a humorous account of the difficulty he had in overcoming the morbid scruples of the great simple-hearted intellectual giant. He found Mr. Shaw in his office in a cloud of tobacco-smoke. Mr. Webster did not himself smoke, and was at some disadvantage during the interview for that reason.

Mr. Shaw was rather short in stature and, in the latter part of his life, somewhat corpulent. He had a massive head, a low forehead, and strong and rather coarse features. He reminded you of the statues of Gog and Magog in the Guildhall in London. His hair came down over his forehead, and when he had been away from home for a week or two, so that his head got no combing but his own, it was in a sadly tangled mass. His eye was dull, except when it kindled in discussion, or when he was stirred to some utterance of grave displeasure.

There is an anecdote of Mr. Choate which occasionally goes the rounds of the papers, and which is often repeated quite inaccurately. The true version is this. I heard it within a few hours after it happened, and have heard it at first hand more than once since.

Mr. Choate was sitting next to Judge Hoar in the bar when the Chief Justice was presiding, and the Suffolk docket was being called. The Chief Justice said something which led Mr. Choate to make a half-humorous and half-displeased remark about Shaw's roughness of look and manner, to which Judge Hoar replied: "After all, I feel a reverence for the old Chief Justice."

"A reverence for him, my dear fellow?" said Choate. "So do I. I bow down to him as the wild Indian does before his wooden idol. I know he's ugly; but I bow to a superior intelligence."

Judge Shaw's mind moved very slowly. When a case was argued, it took him a good while to get the statement of facts into his mind. It was hard for him to deal readily with unimportant matters, or with things which, to other people, were matters of course. If the simplest motion were made, he had to unlimber the heavy artillery of his mind, go down to the roots of the question, consider the matter in all possible relations, and deal with it as if he were besieging a fortress. When he was intent upon a subject, he was exceedingly impatient of anything that interrupted the current of his thought. So he was a hard person for young advocates, or for any other unless he were strong, self-possessed, and had the respect of the Judge. My old friend and partner, Judge Washburn, once told me that he dreaded the Law term of the Court as it approached, and sometimes felt that he would rather lay his head down on the rail, and let a train of cars pass over it, than argue a case before Shaw. The old man was probably unconscious of this failing. He had the kindest heart in the world, was extremely fond of little children and beautiful young women, and especially desirous to care for the rights of persons who were feeble and defenceless.

I was myself counsel before him in a case where the question was whether a heifer calf, worth six or seven dollars, the offspring of the one cow which our law reserves to a poor debtor against attachment, was also exempt. My opponent undertook to make some merriment about the question, and there was some laughter at the Bar. The old Chief Justice interposed with great emotion: "Gentlemen, remember that this is a matter of great interest to a great many poor families." There was no laughter after that, and that heifer calf did duty in many a trial afterward, when the young advocates at the Worcester Bar had some poor client to defend.

The Chief Justice had not the slightest sense of humor. When old Judge Wilde, the great real property Judge, died after an illustrious judicial service of thirty-five years, somebody showed Chief Justice Shaw a register published in Boston which recorded his death, "Died in Boston, the Honorable Samuel S. Wilde, aged eighty, many years Justice of the Peace." It was passed up to the Bench. The old Chief Justice looked at it, read it over again, and said "What publication is this?"

In the old days, when the lawyers and Judges spent the evenings of Court week at the taverns on the Circuit, the Chief Justice liked to get a company of lawyers about him and discourse to them. He was very well informed, indeed, on a great variety of matters, and his talk was very interesting and full of instruction. But there was no fun in it. One evening he was discoursing in his ponderous way about the vitality of seed. He said: "I understand that they found some seed of wheat in one of the pyramids of Egypt, wrapped up in a mummy- case, where it had been probably some four thousand years at least, carried it over to England last year and planted it, and it came up and they had a very good crop."

"Of mummies, sir?" inquired old Josiah Adams, a waggish member of the Bar.

"No, Mr. Adams," replied the Chief Justice, with a tone of reproof, and with great seriousness. "No, Mr. Adams, not mummies--wheat."

Adams retired from the circle in great discomfiture. He inquired of one of the other lawyers, afterward, if he supposed that the Chief Justice really believed that he thought the seed had produced mummies, and was told by his friend that he did not think there was the slightest doubt of it.

Chief Justice Shaw, though very rough in his manner was exceedingly considerate of the rights of poor and friendless persons. Sometimes persons unacquainted with the ways of the world would desire to make their own arguments, or would in some way interrupt the business of the court. The Chief Justice commonly treated them with great consideration. One amusing incident happened quite late in his life. A rather dissipated lawyer who had a case approaching on the docket, one day told his office-boy to "Go over to the Supreme Court and see what in hell they are doing." The Court were hearing a very important case in which Mr. Choate was on one side and Mr. Curtis on the other. The Bar and the Court-Room were crowded with listeners. As Mr. Curtis was in the midst of his argument, the eye of the Chief Justice caught sight of a young urchin, ten or eleven years old, with yellow trousers stuffed into his boots, and with his cap on one side of his head, gazing intently up at him. He said, "Stop a moment, Mr. Curtis." Mr. Curtis stopped, and there was a profound silence as the audience saw the audacious little fellow standing entirely unconcerned. "What do you want, my boy?" said the Chief Justice. "Mr. P. told me to come over here and see what in hell you was up to," was the reply. There was a dive at the unhappy youth by three or four of the deputies in attendance, and a roar of laughter from the audience. The boy was ejected. But the gravity of the old Chief Justice was not disturbed.

He had a curiously awkward motion, especially in moving about a parlor in social gatherings, or walking in the street. I once pointed out to a friend a ludicrous resemblance between his countenance and expression and that of one of the tortoises in the illustrations of one of Agassiz's works on natural history. To which my friend replied: "It is the tortoise on which the elephant stands that bears up the foundations of the world," alluding to the Hindoo mythology.

Chief Justice Shaw's opinions, as we have them in the reports, are exceedingly diffuse. That practice would not answer for a generation which has to consult the reports of forty-five States and of the Supreme Court and nine judicial circuits of the United States, besides the reports of the decisions of some of the District Judges, and in most cases the English decisions. But it would be a great public loss if any of Chief Justice Shaw's utterances were omitted. His impulse, when a question was argued before him, was to write a treatise on the subject. So his decisions in cases where the questions raised are narrow and unimportant are often most valuable contributions to jurisprudence. He seldom passed over any point or suggestion without remark. He went to the bottom of the case with great patience and incredible industry. The counsel who lost his case felt not only that he had had the opinion of a great and just magistrate, but that every consideration he could urge for his client was respectfully treated and either yielded to or answered. Some of his ablest and most far-reaching decisions were written after he was eighty years old.

He possessed, beyond any other American Judge, save Marshall, what may be termed the statesmanship of jurisprudence. He never undertook to make law upon the Bench, but he perceived with a far-sighted vision what rule of law was likely to operate beneficially or hurtfully to the Republic. He was watchful to lay down no doctrine which would not stand this test. His great judgments stand among our great securities, like the provisions of the Bill of Rights.

The Chief Justice was a tower of strength to the Massachusetts judiciary. But for him it is not unlikely that the State would have adopted an elective judiciary or a tenure limited to a term of years. But the whole people felt that his great integrity and wisdom gave an added security to every man's life, liberty, and property. So the proposition to limit the judicial tenure, although espoused by the two parties who together made up a large majority of the people of the State, was defeated when it was submitted to a popular vote. It is, however, a little remarkable that in the neighboring State of Vermont, for many years the Judges of the Supreme Court were annually elected by the Legislature, a system which, I believe, has worked on the whole to their satisfaction. They have had an able judiciary. It is said that old Chief Justice Shaw was one evening discoursing at a meeting of the Boston Law Club to an eminent Vermont Judge, who was a guest. He said, "With your brief judicial tenure, sir--" The Vermonter interrupted him and said, "Why, our tenure of office is longer than yours." "What do you mean?" said the Chief Justice. "I do not understand you." "Why," was the reply, "our Judges are elected for a year, and you are appointed as long as you behave yourselves."

Chief Justice Shaw is said to have been a very dull child. The earliest indication of his gift of the masterly and unerring judgment which discerned the truth and reason of things was, however, noticed when he was a very small boy. His mother one day had a company at tea. Some hot buttered toast was on the table. When it was passed to little Lemuel he pulled out the bottom slice, which was kept hot by the hot plate beneath and the pile of toast above. His mother reproached him quite sharply. "You must not do that, Lemuel. Suppose everybody were to do that?" "Then everybody would get a bottom slice," answered the wise urchin.

Judge Shaw had the sturdy spirit and temper of the old seafaring people of Cape Cod, among whom he was born and bred. He was fond of stories of the sea and of ships. He liked to hear of bold and adventurous voyages. Judge Gray used to tell the story of the old Chief's standing with his back to the fire, with his coat-tails under his arm, in the Judges' room at the Suffolk Court-House, one cold winter morning, when the news of the fate of Sir John Franklin's expedition or the story of some other Arctic tragedy had just reached Boston and was in the morning papers.

"I hope, sir," said Judge Bigelow, "that there will be no more of these voyages to discover the North Pole."

"I want 'em to find that open Polar sea, sir," said Shaw.

"But don't you think," said Judge Bigelow, "that it is too bad to risk so many human lives, and to compel the sailors to encounter the terrible suffering and danger of these Arctic voyages?"

"I think they'll find it yet, sir," was all the reply Bigelow could get.

Judge Shaw, in his latter days, was reverenced by the people of Massachusetts as if he were a demi-god. But in his native county of Barnstaple he was reverenced as a God. One winter, when the Supreme Court held a special session at Barnstaple for the trial of a capital case, Judge Merrick, who was one of the Judges, came out of the Court-house just at nightfall, when the whole surface of the earth was covered with ice and slush, slipped and fell heavily, breaking three of his ribs. He was taken up and carried to his room at the hotel, and lay on the sofa waiting for the doctor to come. While the Judge lay, groaning and in agony, the old janitor of the court- house, who had helped pick him up, wiped off the wet from his clothes and said to him, "Judge Merrick, how thankful you must be it was not the Chief Justice!" Poor Merrick could not help laughing, though his broken ribs were lacerating his flesh.

Next to Chief Justice Shaw in public esteem, when I came to the Bar in December, 1849, was Mr. Justice Wilde. He was nearly eighty years old, and began to show some signs of failing powers. But those signs do not appear in his recorded opinions. He was a type of the old common-lawyer in appearance and manner and character. He would have been a fit associate for Lord Coke, and would never have given way to him. I suppose he was never excelled as a real-property lawyer in this country. He had the antiquated pronunciation of the last century, a venerable gray head and wrinkled countenance, with heavy gray eyebrows. He seemed to the general public to be nothing but a walking abridgment. Still, he was a very well-informed man, and had represented a district of what is now the State of Maine in Congress with great distinction. A friend of mine went rather late to church at King's Chapel one Sunday when the congregation had got some way in the service, and was shown into the pew immediately in front of old Judge Wilde. The Judge was just uttering in a distinct, clear tone, "Lord, teach me Thy statoots." It was the only petition he needed to have granted to make him a complete Judge. Of the Lord's common law he was a thorough master.

He was no respecter of persons. He delivered his judgments with an unmoved air, as if he had footed up a column of figures and were announcing the result. When I was in the Law School, Mr. Webster was retained to argue an important real estate case before Judge Wilde in Suffolk County. Mr. Webster was making what would have been a powerful argument on a question of land-title but for a statute passed since the days of his constant practice, which had not come to his knowledge. There was a great audience, and when Mr. Webster had got his point fairly stated, he was interrupted by Wilde. "Pooh, pooh, Mr. Webster." The Judge pointed out that Webster had overlooked one link in the chain of his antagonist's title.

"But," said Mr. Webster in reply, "the descent tolls the entry."

"That rule is abolished by the statoot, sir."

"Why didn't you tell me that?" said Webster angrily to his junior.

Another of our great old Judges was Judge Fletcher. He had had a great practice as an advocate in Boston, especially as a commercial lawyer. He had a great power of clear statement. He brought out his utterances in a queer, jerking fashion, protruding his lips a little as he hesitated at the beginning of his sentences. But he knew how to convey his meaning to the apprehension of Courts and juries. He left the Bench less than two years after I came to the Bar. I never had but one important case before him. He was a bachelor. He was very interesting in conversation, liked the company of young men, who never left him without carrying away some delightful anecdote or shrewd and pithy observation.

A lawyer from the country told me one day that he had just been in Fletcher's office to get his opinion. While he was in the office, old Ebenezer Francis, a man said to be worth $8,000,000, then the richest man in New England, came to consult him about a small claim against some neighbor. Fletcher interrupted his consultation with my friend and listened to Mr. Francis's story. In those days, parties could not be witnesses in their own cases. Fletcher advised his client that although he had an excellent case, the evidence at his command was not sufficient to prove it, and advised against bringing an action. Francis, who was quite avaricious, left the office with a heavy heart. When he had gone, Fletcher turned to my friend and said: "Isn't it pitiful, sir, to see an old critter, wandering about our streets, destitute of proof?"

But the most interesting and racy character among our old Judges was Theron Metcalf. He used to say of himself--a saying that did him great injustice--that he was taken to fill a gap in the Court as people take an old hat to stop a broken window. He undervalued his own capacity. He was not a good Judge to preside at jury trials. He had queer and eccentric notions of what the case was all about, and while he would state a principle of law with extraordinary precision and accuracy he had not the gift of making practical application of the law to existing facts. So a great many of his rulings were set aside, and it did not seem, when he had held a long term of Court, that a great deal had been accomplished. But he was a very learned common-lawyer. His memory was a complete digest of the decisions down to his time. He comprehended with marvellous clearness the precise extent to which any adjudged case went, and would state its doctrine with mathematical precision.

He hated statutes. He was specially indignant at the abolition of special pleading. He sent word to me, when I was Chairman of the Judiciary Committee in the Massachusetts Senate, asking to have a provision enacted for simplifying the process of bringing before the full Bench for revision the proceedings in habeas corpus, or mandamus, or certiorari, or some other special writ, I forget now what. I called upon him at once, and pointed out to him that exactly what he wanted was accomplished by the Practice Act of 1852. This was the statute under which all our legal proceedings in cases affecting personal property were had. Metcalf said, with great disgust: "I have said, sir, that if they did not repeal that thing I would not read it."

He used to enliven his judgments with remarks showing a good deal of shrewd wisdom. In one case a man was indicted for advertising a show without a license. The defendant insisted that the indictment was insufficient because it set out merely what the show purported to be, and not what it really was. On which the Judge remarked: "The indictment sets out all that is necessary, and, indeed, all that is safe. The show often falls short of the promise in the show-bill."

There was once a case before him for a field-driver who had impounded cattle under the old Massachusetts law. The case took a good many days to try, and innumerable subtle questions were raised. The Judge began his charge to the jury: "Gentlemen of the jury, a man who takes up a cow straying in a highway is a fool."

Another time there was a contest as to the value of some personal property which had been sold at auction. One side claimed that the auction-sale was a fair test of the value. The other claimed that property that was sold at auction was generally sold at a sacrifice. Metcalf said to the jury: "According to my observation, things generally bring at auction all they are worth, except carpets."

I once tried a case before him against the Norwich Railroad for setting fire to the house of a farmer by a spark from a locomotive. It was a warm summer afternoon when the house was burnt up. There was no fire in the house except a few coals among the ashes in a cooking stove where the dinner had been cooked some hours before. The railroad was very near the house. There was a steep up-grade, so that the engineers were tempted to open the bonnet of their smokestacks for a better draught. We called as a witness a sturdy, round-faced, fat old woman, who testified that she was sitting at her window, knitting, in a house some little distance away, when the train went by. She put in a mark to see, as she expressed it, "how many times round" she could knit before supper. A few minutes after, she heard a cry of fire, and looked out and saw a blaze on the roof of her neighbor's house, just kindling, close to the eaves on the side where the engine had passed. She threw down the stocking and went to help. The stocking was found after the fire with the mark just as she left it. So we claimed that we could tell pretty well how long the time had been between the passing of the train and the breaking out of the fire. Judge Metcalf, who was always fussy and interfering, said: "How can we tell anything by that, unless we know how large the stocking was?" The old lady, with a most bland smile, turned to the Judge as if she were soothing an infant, lifted up the hem of her petticoats, and exhibited a very sturdy ankle and calf, and said, "Just the size I wear, your Honor." There was a roar of laughter in the court-house. The incident was published in the morning paper the next day, much to the Judge's indignation. He addressed the audience when he came into Court in the morning, and said: "I see the Worcester Spy has been trying to put a fool's cap on my head."

Judge Metcalf told me this story about Chief Justice Parsons. The Chief Justice's manner to the Bar, as is well-known, was exceedingly rough. He was no respecter of persons, and treated the old and eminent lawyers quite as harshly as the youngsters. The Bar used to call him Ursa Major. The Chief Justice used to look over the pleadings carefully before the trials began. It was in the time when special pleading often brought the issue to be decided into a narrow compass. Soon after the case was begun, the Judge would take the case out of the hands of the counsel and examine the witnesses himself, and give an opinion which was likely to be implicitly followed by the jury. Jabez Upham, of Brookfield, in Worcester County, Mr. Justice Gray's grandfather, once sent his office-boy to Court with a green bag containing his papers, thinking there was no use in going himself. At last the leading members of the Bar in Boston got very angry, and four or five of them agreed together to teach the old Chief a lesson. So they sat down to a trial in the Supreme Court where Parsons was presiding. Pretty soon he interfered with the lawyer who was putting in the case for the plaintiff, in his rough way. The lawyer rose and said: "I cannot take care of my client's rights where my own are not respected," or something to that effect. "I will ask Brother Sullivan to take my place." Sullivan, who was possessed of the case, took the place. The trial went on a little while, when something happened which offended Sullivan. He rose and said he could not go on with the case after his Honor's remark, and would ask Brother So-and-So, perhaps Otis, to take his place. This happened three or four times in succession. The Chief Justice saw the point and adjourned the Court very early for the noon recess, and went to the house of his colleague, Judge Sewall, who lived out somewhere on the Neck, called him out and said: "You must go down and hold that Court. There is a con_spire_acy sir." Parsons never held a nisi-prius term in Suffolk again.

Chief Justice Shaw used to tell with great indignation the story of his first appearance before Parsons, when a young man. There was a very interesting question of the law of real property, and Samuel Dexter, then the head of the Bar, was on the other side. Parsons was interested in the question as soon as it was stated, and entered into a discussion with Dexter in which they both got earnestly engaged. The Chief Justice intimated his opinion very strongly and was just deciding it in Dexter's favor, when the existence of the young man on the other side occurred to him. He looked over the bar at Shaw and said: "Well, young man, do you think you can aid the Court any in this matter?" "I think I can, sir," said Shaw with spirit. Parsons listened to him, but, I believe, remained of his first opinion.

Judge Metcalf in the time when he was upon the Bench had the credit, I do not know how well deserved it was, of not being much given to hospitality. He was never covetous, and he was very fond of society and conversation. But I fancy he had some fashions of his own in housekeeping which he thought were not quite up to the ways of modern life. At any rate, he was, so far as I know, never known to invite any of his brethren upon the Bench or of the Bar to visit him at his house, with one exception. One of the Judges told me that after a hard day's work in court the Judges sat in consultation till between nine and ten o'clock in the evening, and he walked away from the Court-House with Judge Metcalf. The Judge went along with him past the Tremont House, where my informant was staying. As they walked up School Street, he said: "Why, Judge Metcalf, I didn't know you went this way. I thought you lived out on the Neck somewhere." "No, sir," said Judge Metcalf, "I live at number so-and-so Charles Street, and I will say to you what I heard a man say the first night I moved into my present house. I heard a great noise in the street after midnight, and got up and put my head out of the window. There was a man lying down on the sidewalk struggling, and another man, who seemed to be a policeman, was on top of him holding him down. The fellow with his back to the ground said: 'Let me get up, --- d--- you,' The policeman answered: 'I sha'n't let you get up till you tell me what your name is and where you live.' The fellow answered, 'My name is Jerry Mahoney, --- d--- you, and I live at No. 54 Cambridge Street, --- d--- you, where I'd be happy to see you, --- d--- you, if you dare to call." That was the only instance known to his judicial brothers of Judge Metcalf's inviting a friend to visit him.

Judge Metcalf's legal opinions will read, I think, in the future, as well as those of any Judge of his time. They are brief, compact, written in excellent English, and precisely fit the case before him without any extraneous or superfluous matter. He would have been a very great Judge, indeed, if his capacity for the conduct of jury trials and dealing with nisi-prius business in general had equalled his ability to write opinions on abstract questions.

John Davis was never a Judge. But a few words about him may well find a place here. He had long since withdrawn from the practice of law when I came to Worcester. He remained in the Senate of the United States until March 4, 1853. But the traditions of his great power with juries remained. I was once or twice a guest in his house, and once or twice heard him make political speeches.

My father, who had encountered all the great advocates of his time in New England--Webster, Choate, Jeremiah Mason, Dexter-- used to say that John Davis was the toughest antagonist he ever encountered. Mr. Davis had no graces of oratory or person. He was not without a certain awkward dignity. His head was covered with thick and rather coarse white hair. He reminded you a little, in look and movement, of a great white bear. But he had a gift of driving his point home to the apprehension of juries and of the people which was rarely equalled. He was a man of few words and infrequent speech, without wit or imagination. He thoroughly mastered the subjects with which he dealt. When he had inserted his wedge, he drove it home with a few sledge-hammer blows. It was commonly impossible for anybody to extract it. It was only the great weight of his authority, and the importance of the matters with which he dealt, which kept him from seeming exceedingly tedious. I remember thinking when I heard him make a speech in behalf of General Scott in the City Hall, in the autumn of 1852, that if any man but John Davis were talking the audience could not be kept awake. He spoke very slowly, with the tone and manner of an ordinary conversation. "The Whigs, fellow- citizens, have presented for your suffrages this year, for the office of President of the United States, the name of Major-General Winfield Scott. I know General Scott. I have had good opportunity to acquaint myself with his character and public service. I think you may give him your confidence, gentlemen." That was pretty much the whole speech. At any rate, there was nothing more exciting in it. But it was John Davis that said it, and it had great effect upon his audience.

Mr. Davis supported General Taylor for President in 1848, thereby, on the one hand, offending Mr. Webster, with whom his relations had for some time been exceedingly strained, and the anti-slavery men in Massachusetts on the other. It was understood also that he had displeased Governor Lincoln at the time of his election to the Senate, Governor Lincoln thinking that Mr. Davis had taken an undue advantage of his official influence as Governor to promote his own selection. But the two united in the support of General Taylor, which led Charles Allen to quote a verse which has been more than once applied in the same way since, "And in that day Pilate and Herod were made friends together."

Mr. Davis was a careful and prudent manager of money matters, and left what was, for his time, a considerable estate, considering the fact that so much of his life had been passed in the public service. His success in public life was, doubtless, in large measure, increased by his accomplished and admirable wife, the sister of George Bancroft. She was a lady of simple dignity, great intelligence, great benevolence and kindness of heart. Her conversation was always most delightful, especially in her old age, when her mind was full of the treasures of her long experience and companionship with famous persons. Mr. Davis left five sons, all of them men of ability. The eldest has been Minister to Berlin, Assistant Secretary of State, Secretary of Legation in London, Judge of the Court of Claims, and Reporter of the decisions of the Supreme Court of the United States. Another son, Horace, has been a member of Congress, eminent in the public life of California, and, I believe, president of the University of California.

John Davis won great distinction by a very powerful speech on the tariff question in reply to James Buchanan. Buchanan was one of the most powerful Democratic leaders in the Senate, but Davis was thought by the Whigs to have got much the better of him in the debate. It was generally expected that he would be the Whig candidate for the Vice-Presidency in 1840. But another arrangement was made, for reasons which may be as well told here. The Whig Convention to nominate a President was held at Harrisburg, Pa., in December 4, 1839, nearly a year before the election. The delegates from the different States were asked to consult together and agree upon their first choice. Then they were asked to say whom they thought next to the person they selected would be the strongest candidate. When the result was ascertained, it was discovered that William Henry Harrison was thought by a very large majority of the Convention to be the strongest candidate they could find. He was accordingly selected as the Whig standard-bearer. A committee of one person from each State was then chosen to propose to the Convention a candidate for Vice-President. Benjamin Watkins Leigh, of Virginia, was a strong supporter of Henry Clay, a man of great personal worth, highly esteemed throughout the country. The Convention adjourned, and came in after the adjournment to hear the report of the committee. Mr. Leigh accosted the Chairman of the committee and stood with him in a conspicuous place as the delegates filed in. He inquired of the Chairman what conclusion they had come to as to a candidate for Vice-President. To which the Chairman replied: "You will be informed in due time." When the Convention was called to order, one of the delegates from Massachusetts made a speech in which he set forth the high qualities that were desired in a candidate for this important office, and, after giving a sketch of exalted character and great capacity for the public service, he ended by declaring that such a man was Mr. Leigh, of Virginia, and proposing his name as the unanimous recommendation of the committee. Mr. Leigh was taken aback. He had been a zealous supporter of Mr. Clay. He addressed the chair, saying he was much gratified by what had been said by his friend from Massachusetts, and he hoped he might live in some humble measure to deserve the tribute which had been paid to him. But he thought that having been a zealous supporter of Mr. Clay, and having had, in some sense, the charge of his candidacy, he could not himself accept a nomination in connection with another person without exposing himself to the suspicion that he had in some way benefitted by the defeat of his own candidate and leader. It was said that his embarrassment was increased by the fact that he had been seen conversing with the Chairman of the committee by the members of the Convention. How that is I do not know. The result was the nomination of Mr. Tyler, his election, his succession to the Presidency after the death of Harrison, which resulted in such disastrous consequences to the Whigs.

John Davis was a Federalist and a Whig. His sons were Whigs and Republicans always on the conservative side of public questions. His nephew, Colonel Isaac Davis, was in that respect a contrast to his uncle.

It has been charged that John Davis, by taking up the time at the close of the session of Congress by an indiscreet speech, was the means of defeating the Wilmot Proviso, which had come from the House inserted in a bill for the incorporation of Oregon as a Territory. This statement has received general circulation. It is made in Pierce's "Life of Sumner," and in Von Holst's "Constitutional History." There is no truth in it. I investigated the matter very carefully, and have left on record a conclusive refutation of the whole story in a paper published by the American Antiquarian Society.

Mr. Davis's popularity, however, enabled him to render an important service to his party at home. The Democrats in 1839 had elected their governor, Marcus Morton, by a majority of one vote by reason of the unpopularity of the law to prevent liquor-selling, known as the Fifteen-Gallon Law, which had been passed in January, 1838. They were anxious to redeem the State, and summoned John Davis, their strongest and most popular man, to lead their forces. He accordingly resigned his seat in the Senate, was chosen Governor by a large majority, and was reelected to the Senate again the next year.

Sketches like these, made by a man who was young when the men he is talking about were old, are apt to give prominence to trifles, to little follies and eccentricities. Let nobody think that there was anything trifling or ludicrous about John Davis. He was a great, strong, wise man, a champion and tower of strength. He not only respected, but embodied the great traditions and opinions of Massachusetts in the great days, after the generation of the Revolution had left the state when she earned for herself the name of the "Model Commonwealth," and her people were building the structure of the Commonwealth on the sure foundations which the master- workmen of the Colonial and Revolutionary days had laid. The majestic presence of Webster, the classic eloquence of Everett, the lofty zeal of Sumner have made them more conspicuous figures in the public eye, and it is likely will preserve their memeory longer in the public heart. But the figure of John Davis deserves to stand by the side of these great men in imperishable memory as one of the foremost men of the State he loved so well and served so faithfully and wisely.

The Bar of Worcester County in 1850 and the years following was a very able one, indeed. It had many men of high reputation in the Commonwealth and some of wide national fame. The principal citizen of Worcester and the most distinguished member of the Bar was Governor Levi Lincoln. Although he had long since left practice, he used always to come into the court once at each term of the Supreme Court, bow respectfully to the Bench, and invite the Judges to dinner at his house, and withdraw. He filled a very large place in the history of Massachusetts from the time of his graduation at Harvard in 1802 until the close of the War in 1865. There is, so far as I know, no memoir of him in existence, except one or two brief sketches which appear in the proceedings of some local societies of which he was a member.

His father, Levi Lincoln the elder, was an intimate friend and correspondent of Mr. Jefferson, and Attorney-General in his Cabinet. He was nominated Judge of the Supreme Court of the United States by Mr. Madison and confirmed by the Senate and actually appointed, but was unable to take the office because of failing sight. He did more, probably, than any other man to organize and bring to success the political revolution in New England which followed Jefferson's accession to the Presidency in 1801. Many letters to him are found in Mr. Jefferson's published works, and there are many letters from him to Mr. Jefferson in the Jefferson papers in the archives at Washington. Some of the correspondence on both sides is enough to make the hair of the civil service reformer stand on end. The son adopted his father's political opinions and was an enthusiastic supporter of Jefferson in his youth. Jefferson wrote a letter, which I think is now in existence, praising very highly some of young Mr. Lincoln's early performances. He delivered an address at Worcester, March 4, 1803, a few months after he left college, in which he proposed that the Fourth of March, the day of Mr. Jefferson's accession to the Presidency, should be celebrated thereafter instead of the Fourth of July. He says: "Republicans no longer can hail the day as exclusively theirs. Federalism has profaned it. She has formed to herself an idol in the union of Church and State, and this is the time chosen to offer its sacrifice." He sets forth "the long train of monstrous aggressions of the Federalists" under Washington and Adams; declares that they "propose a hereditary executive and a Senatorial nobility for life," and says that the "hand would tremble in recording, and the tongue falter in reciting, the long tale of monstrous aggression. But on the Fourth of March was announced from the Capitol the triumph of principle. Swifter than Jove on his imperial eagle did the glad tiding of its victory pervade the Union. As vanish the mists of the morning before the rays of a sunbeam, so error withdrew from the inquiries of the understanding. The reign of terror had passed," etc., etc. But there never was a better example of Emerson's maxim that "a Conservative is a Democrat grown old and gone to seed." As the young man grew in reputation and influence he became more moderate in his opinions. He was appointed Judge of the Supreme Court; then was elected Governor by a union of all parties in what was called "the era of good feeling"; held the office nine years; then represented the Worcester district in Congress, and withdrew to a dignified and honorable retirement from which he emerged to hold the office of Mayor of Worcester the first year of the life of the city. He was, as I remember him, the very embodiment of dignity and aristocracy. He had a diffuse and rather inflated style, both in public speaking and in private conversation. His dignity had a bare suspicion of pomposity in it. He looked with great disdain upon the simplicity of behavior of some of his successors, and their familiarity with all classes of the people. He came into my office one morning full of an intense disgust with something Governor Briggs had been doing. He said: "In my time, sir, the office of Governor of the Commonwealth was an office of dignity. The arrival of the Chief Magistrate in any town was an event of some importance. He travelled in his carriage, with suitable attendants. He appeared in public only on great occasions. But now you see hand-bills about the street giving notice that there is to be a Temperance tea-party to-morrow afternoon, in some vestry or small hall. Music by the Peak family. His Excellency George N. Briggs will address the meeting. Admission, ten cents."

He accepted his position at the head of the social life of Worcester as a matter of course. I remember one night, when a party was breaking up, I said to the person next to me, in some jesting fashion: "I am sorry to see the decay of the old aristocracy." The Governor, who was getting his coat at the other end of the room, overheard the remark, and called out: "Who is lamenting our decay?"

The Governor looked with great disgust upon the formation of the Free Soil Party and the Anti-Slavery movement. But when the war came he remained thoroughly loyal. He encouraged enlistment in every way, and measures for the support of the Government had all the weight of his influence. He was a Presidential elector, and voted for Abraham Lincoln at the time of his second election.

When Webster was first chosen Senator he refused to be a candidate for the office until it was ascertained whether Governor Lincoln would accept it. The Governor then declined, for the reason I have stated in another place. He was also offered an appointment to the Senate by Governor Washburn when Mr. Everett resigned in 1853. But it is said that he was quite desirous of being elected Senator when Mr. Davis was first chosen.

The Governor was, as just said, an example of Emerson's famous saying that a Conservative is a Democrat grown old and gone to seed. He was looked upon as the embodiment of reverend dignity. His household was at the head of the social life of Worcester during his later years. Every family in the County was proud who could trace a connection with his. There were a few traditions in the old Federalist families like the Thomases and the Allens of a time when the Lincolns were accounted too democratic to be respectable. But they gained little credence with people in general. One day, however, I had to try a real estate case which arose in the adjoining town and involved an ancient land-title. An old man named Bradyill Livermore was summoned as a witness for my client. He was, I think, in his ninety-fifth year. He lived in a sparsely settled district and had not been into Worcester for twenty or twenty-five years. I sat down with him in the consultation-room. After he had told me what he knew about the case, I had a chat with him about old times and the changes in Worcester since his youth, and he asked me about some of the members of the Bar then on the stage. Governor Lincoln, who had long retired, happened to be mentioned. The old fellow brought the point of his staff down with great emphasis upon the floor, and then held it loosely with the fingers of his trembling and shaking hand, and said, very earnestly, but with a shrill and strident voice like that of one of Homer's ghosts: "They say, sir, that that Mr. Lincoln has got to be a very respectable man. But I can remember, sir, when he was a terrible Jacobite."

I have given elsewhere a portraiture of Charles Allen, and a sketch of his great career. He was a man of slender physical frame and feeble voice. But he was a leader of leaders. When in 1848 he left the Whig Convention in Philadelphia, an assembly flushed with the anticipation of National triumph, declaring, amid the jeers and hisses of its members, that the Whig Party was dead--a prediction verified within four years--down to the election of Lincoln, in 1860, he was in Massachusetts a powerful influence. He was a great advocate, a great judge, a great counsellor. He was in my judgment a greater intellectual force than any other man in his time, Daniel Webster not excepted. It was a force before which Webster himself more than once recoiled. I knew him intimately and was, I believe, admitted to no inconsiderable share of his confidence. But there is no space here to do justice to my reverence for his noble character.

On the whole, the most successful of the Worcester Bar, in my time, in the practice of his profession, was Emory Washburn. He was a man of less intellectual power undoubtedly than either of his great contemporaries and antagonists, Allen, Merrick, or Thomas. Yet he probably won more cases, year in and year out, than either of them. He was a man of immense industry. He went to his office early in the morning, took a very short time, indeed, for his meals, and often kept at work until one or two o'clock in the morning of the next day. He suffered severely at one time from dyspepsia brought on by constant work and neglect of exercise; but generally he kept his vigorous health until his death at the age of eighty. He was indefatigable in his service to his clients. His mind was like a steel spring pressing on every part of the other side's case. It was ludicrous to see his sympathy and devotion to his clients, and his belief in the cause of any man whom he undertook to champion. It seemed as if a client no sooner put his head on the handle of Washburn's office-door than his heart warmed to him like that of a mother toward her first-born. No strength of evidence to the contrary, no current of decisions settling the law would prevent Washburn from believing that his man was the victim of prejudice or persecution or injustice. But his sincerity, his courtesy of manner and kindness of heart made him very influential with juries, and it was rare that a jury sat in Worcester county that had not half a dozen of Washburn's clients among their number.

I was once in a very complicated real estate case as Washburn's associate. Charles Allen and Mr. Bacon were on the other side. Mr. Bacon and I, who were juniors, chatted about the case just before the trial. Mr. Bacon said: "Why, Hoar, Emory Washburn doesn't understand that case the least in the world." I said, "No, Mr. Bacon, he doesn't understand the case the least in the world. But you may depend upon it he will make that jury misunderstand it just as he does." And he did.

Charles Allen, who never spared any antagonist, used to be merciless in dealing with Washburn. He once had a case with him which attracted a great deal of public attention. There had been a good many trials and the cost had mounted up to a large sum. It was a suit by a farmer who had lost a flock of sheep by dogs, and who tried to hold another farmer responsible as the owner of the dog which had killed them. One of the witnesses had been out walking at night and heard the bark of the dog in the field where the sheep were. He was asked to testify if he could tell what dog it was from the manner of his bark. The evidence was objected to, and Allen undertook to support his right to put the question. He said we were able to distinguish men from each other by describing their manner and behavior, when the person describing might not know the man by name. "For instance, may it please your Honor, suppose a stranger who came into this court-house during this trial were called to testify to what took place, and he should say that he did not know anybody in the room by sight, but there was a lawyer there who was constantly interrupting the other side, talking a great deal of the time, but after all didn't seem to have much to say. Who would doubt that he meant my Brother Washburn?"

This gibe is only worth recording as showing the court-house manners of those times. It is no true picture of the honest, faithful and beloved Emory Washburn. He was public-spirited, wise, kind-hearted, always ready to give his service without hope of reward or return to any good cause, a pillar of the town, a pillar of the church. He had sometimes a certain confusion of statement and of thought, but it was only apparent in his oral discourse. He wrote two admirable law-books, one on easements, and one on real property. Little & Brown said his book on easements had the largest sale of any law- book ever published in this country up to its time. He was a popular and useful Professor in the Harvard Law School. He gave a great deal of study to the history of Massachusetts, and was the author of some valuable essays on historical questions, and some excellent discourses on historical occasions. He left no duty undone. Edward Hale used to say: "If you want anything done well, go to the busiest man in Worcester to do it--Emory Washburn, for example." He was grievously disappointed that he was not appointed Judge of the Supreme Court when Judge Thomas became a member of the Bench. A little while afterward there was another vacancy, and Governor Clifford took Merrick, another of Washburn's contemporaries and rivals at the bar, although Merrick was a Democrat, and the Governor, like Washburn himself, was a Whig. This was almost too much for him to bear. It took place early in the year 1853. Mr. Washburn sailed for Europe a few weeks after, and felt almost like shaking off the dust of his feet against Massachusetts and the Whig Party. But he was very agreeably compensated for his disappointment. During his absence he was nominated by the Whigs for the office of Governor, to which office he was elected in the following January, there being then, under our law, which required a clear majority of all the votes, no choice by the people. He made an admirable and popular Governor. But the Nebraska Bill was introduced in that year. This created strong excitement among the people of Massachusetts, and the Know-Nothing movement came that fall, inspired more by the desire of the people to get rid of the old parties, and form a new anti-slavery party, than by any real opposition to foreigners, which was its avowed principle. This party swept Massachusetts, electing all the State officers and every member of the State Legislature except two from the town of Northampton. They had rather a sorry Legislature. It was the duty of the outgoing Governor to administer the oath to the Representatives- and Senators-elect. Governor Washburn performed that duty, and added: "Now, gentlemen, so far as the oath of office is concerned, you are qualified to enter upon your duties."

Governor Washburn was a thorough gentleman, through and through, courteous, well-bred, and with an entirely sufficient sense of his own dignity. But he had little respect for any false notions of gentility, and had a habit of going straight at any difficulty himself. To this habit he owed much of his success in life. A very amusing story was told by Mrs. Washburn long after her husband's death. She was one of the brightest and sprightliest and wittiest of women. Her husband owed to her much of his success in life, as well as much of his comfort and domestic enjoyment. She used to give sometimes half a dozen entertainments in the same week. She was never disconcerted by any want of preparation or suddenness of demand upon her hospitality. One day some quite distinguished guests arrived in Worcester unexpectedly, whom it was proper that she should keep to dinner. The simple arrangements which had been made for herself and her husband would not do. She accordingly went at once to the principal hotel of the town, in the neighborhood, and bargained with the landlord to send over the necessary courses for her table, which were just hot and cooked and ready for his own. She got off very comfortably without being detected.

Her story was that one time when Judge Washburn was Governor the members of his Staff came to Worcester on some public occasion and were all invited to his house to spend the night. When he got up in the morning he found, to his consternation, that the man who was in the habit of doing such services at his house was sick, or for some other reason had failed to put in an appearance, and none of the boots of the young gentlemen were blacked. The Governor was master of the situation. He descended to his cellar, took off his coat, blacked all the boots of the youngsters himself, and met them at breakfast with his usual pleasant courtesy, as if nothing had happened.

I do not undertake to give a full sketch of Benjamin F. Thomas. He was one of the very greatest of American lawyers. But such desultory recollections as these are apt to dwell only on the eccentricities or peculiarities or foibles of men. They are not the place for elaborate and noble portraiture.

Judge Thomas was the principal figure in the Worcester court- house after Judge Allen's election to Congress in 1848. Judge Thomas did not get large professional business very rapidly. He was supposed, in his youth, to be a person of rather eccentric manners, studious, fond of poetry and general literature and of historical and antiquarian research. He was impulsive, somewhat passionate, but still with an affectionate, sunny, generous nature, and a large heart, to which malice, hatred, or uncharitableness were impossible. It is said that in his younger days he used to walk the streets, wrapped in his own thoughts, unconscious of the passers-by, and muttering poetry to himself. But when I came into his office as a student, in August, 1849, all this trait had disappeared. He was a consummate advocate, a favorite alike with Judges and jurors, winning his causes wherever success was possible, and largely employed. He had a clear voice, of great compass, pitched on rather a high key, but sweet and musical like the sound of a bugle. The young men used to fill the court-house to hear his arguments to juries. He became a very profound lawyer, always mastering the learning of the case, but never leaning too much upon authorities. Charles Emerson's beautiful phrase in his epitaph upon Professor Ashmun, "Books were his helpers, never his masters," was most aptly applied to Thomas. If he had any foible which affected at all his usefulness or success in life it was an impatience of authority, whether it were the authority of a great reputation, or of party, or of public sentiment, or of the established and settled opinions of mankind. He went on the Supreme Bench in 1853. Dissenting opinions were rare in the Massachusetts Supreme Court in those days. In this I think the early Judges were extremely wise. Nothing shakes the authority of a court more than the frequent habit of individual dissent. But Judge Thomas dissented from the judgments of his court on several very important occasions. His dissenting opinions were exceedingly alike. I think it would have been better if they had not been delivered. I think he would have been much more likely to have come to the other conclusion if the somewhat imperious intellect of Shaw had not been put into the prevailing scale. When all Massachusetts bowed down to Webster, Judge Thomas, though he respected and honored the great public idol, supported Taylor as a candidate for the Presidency. At the dinner given to the Electoral College after the election, where Mr. Webster was present, Judge Thomas shocked the meeting by saying: "Some persons have spoken of our candidate as their second choice. I am proud to say that General Taylor was not only my last, but my first choice." So, when Judge Thomas was in Congress, while he was as thoroughly loyal, patriotic, and brave a man as ever lived, he opposed the policies of the Republican Party for carrying on the war and putting down the Rebellion. He was thought to be inspired by a great dislike of submitting to party authority or even to that of President Lincoln. He was very fond of young men. When he was Judge they always found that they had all the consideration that they deserved, and had no fear of being put at a disadvantage by any antagonist, however able or experienced. The Judge seemed always to be stirred by the suggestion of an intellectual difficulty. When I was seeking some remedy at his hands, especially in equity, I used to say that I thought I had a just case, but I was afraid his Honor might think the legal difficulties were insuperable and I did not know whether I could get his Honor's approbation of what I asked. He would instantly rouse himself and seem to take the suggestion as a challenge, and if it were possible for human ingenuity to find a way to accomplish what I wanted he would do it. He preserved the sweetness and joyous spirit of boyhood to the day of his death. It was delightful to catch him when he was at leisure, to report to him any pleasant story that was going about, and to hear his merry laugh and pleasant voice. He was a model of the judicial character. It was a delight to practise before him at nisi prius. I have known a great many admirable lawyers and a good many very great Judges. I have known some who had more learning, and some, I suppose, though very few, who had greater vigor of intellect. But no better Judge ever sat in a Massachusetts court-house. Dwight Foster felicitously applied to him the sentence which was first uttered of Charles James Fox, that "his intellect was all feeling, and his feeling all intellect."

Dwight Foster came to the Bar just a week after I did. But I ought not to omit him in any account of the Massachusetts lawyers or Judges of my time. He rose rapidly to a place in the first rank of Massachusetts lawyers, which he held until his untimely death. He was graduated the first scholar in his class at Yale in 1848. Before he was graduated he became engaged to a very admirable and accomplished lady, daughter of Roger S. Baldwin, Governor of Connecticut and United States Senator, then head of the Connecticut Bar. This lady had some tendency to a disorder of the lungs and throat which had proved fatal to two of her brothers. Dwight Foster was very anxious to get her away from New Haven, where he thought the climate and her habit of mingling in gay society very unfavorable to her health. So he set himself to work to get admitted to the Bar and get established in business that he might have a place for her in Worcester. He was examined by Mr. Justice Metcalf, after studying a little more than a year, and found possessed of attainments uncommon even for persons who had studied the full three years and had been a good while at the Bar. Judge Metcalf admitted him, and on some other Judge criticising what he had done, the Judge said, with great indignation, "If he thinks Foster is not qualified, let him examine him himself."

Mr. Foster's first employment had very awkward consequences. The people in Worcester had the old Puritanic dislike to theatrical entertainments, and had always refused to license such exhibitions. But a company of actors desired to obtain a theatre for the season and give performances in Worcester. There was a great opposition, and the city government ordered a public hearing of the petition in the old City Hall. Foster was employed by the petitioners. The hall was crowded with citizens interested in the matter, and the Mayor and Aldermen sat in state on the platform. When the hearing was opened, the audience were struck with astonishment by the coming forward of Dwight Foster's father, the Hon. Alfred D. Foster, a highly honored citizen of great influence and ability. He had been in the State Senate and had held some few political offices, but had disliked such service and had never practised law, having a considerable property which he had inherited from his father, the former United States Senator. He made a most eloquent and powerful appeal to the aldermen to refuse the petition, in the name of morality and good order. He stated the deplorable effect of attending such exhibitions on the character of the youth of our city of both sexes, cited the opinion and practice of our ancestors in such matters, and made a profound impression. He then warned his hearers against the young man who was to follow him, whom, he said, he loved as his life, but he was there employed as a lawyer with his fee in his hand, without the responsibility which rested upon them of protecting the morals and good order of the city. It was very seldom that so powerful a speech was heard in that hall, although it was the cradle of the Anti-slavery movement, and had been the scene of some of the most famous efforts of famous orators. Everybody supposed that the youth was crushed and would not venture to perform his duty in the face of such an attack. But he was fully equal to the occasion. He met his father with a clear, simple, modest, but extremely able statement of the other side; pointed out the harmlessness of such exhibitions when well conducted, and that the strictness which confounded innocence and purity with guilt and vice was itself the parent and cause of vice. He did not allude to his father by name or description, but in replying to his arguments said: "It is said in some quarters," or "An opposition comes from some quarters" founded on such-and-such reasons. He got the sympathy of his audience and carried his point. And from that time nobody hesitated to trust Dwight Foster with any cause, however important, from any doubt of his capacity to take care of his clients.

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.

Judge Gray's father was largely employed in manufacturing and owned some large iron works. The son had been brought up, I suppose, to expect that his life would be one of comfort and ease, free from all anxieties about money, and the extent of the labor of life would be, perhaps, to visit the counting- room a few hours in the day to look over the books and see generally that his affairs were properly conducted by his agents and subordinates. He had visited Europe more than once, and was abroad shortly after his graduation when the news reached him that the companies in which his father's fortune was invested had failed. He at once hurried home and set himself resolutely to work to take care of himself. He was an accomplished naturalist for his age and time, and had a considerable library of works on natural history. He exchanged them for law-books and entered the Law School. I was splitting wood to make my own fire one autumn morning when my door, which was ajar, was pushed open, and I saw a face somewhere up in the neighborhood of the transom. It was Gray, who had come to inquire what it was all about. He had little knowledge of the rules or fashions of the Law School. I told him about the scheme of instruction and the hours of lectures, and so forth. We became fast friends, a friendship maintained to his death. He at once manifested a very vigorous intellect and a memory, not only for legal principles, but for the names of cases, which I suppose had been cultivated by his studies in natural history and learning the scientific names of birds and plants. At any rate, he became one of the best pupils in the Law School. He afterward studied law with Edward D. Sohier, and immediately after his admission became known as one of the most promising young men at the Bar. Luther S. Cushing was then Reporter of the decisions of the Supreme Court. He was in poor health and employed Gray to represent him as Reporter on the Circuit. Gray always had a marvellous gift of remembering just where a decision of principle of law could be found, and his thumb and forefinger would travel instantly to the right book on the obscurest shelf in a Law Library. So nothing seemed to escape his thorough and indefatigable research. When he was on the Circuit, learned counsel would often be arguing some question of law for which they had most industriously prepared, when the young Reporter would hand them a law-book with a case in it which had escaped their research. So the best lawyers all over the State got acquainted at an early day with his learning and industry, and when Cushing soon after was obliged to resign the office of Reporter, Gray was appointed by the general consent of the best men of the profession, although he had as a competition Judge Perkins, a very well known lawyer and Judge, who had edited some important law-books and was a man of mature age. This was in 1854, only three years after his admission to the Bar. The office of Reporter was then one of the great offices of the State, almost equal in dignity to that of the Judge of the Supreme Court itself. Four of our Massachusetts Reporters have been raised to that Bench. He was quite largely retained and employed during that period, especially in important questions of commercial law. He resigned his office of Reporter about the time of the breaking out of the war. Governor Andrew depended upon his advice and guidance in some very important and novel questions of military law, and in 1864 he was appointed Associate Justice of the Court. In 1873 he became its Chief Justice, and in 1882 was made Associate Justice of the Supreme Court of the United States. The extent of his learning and the rapidity and thoroughness of his research were marvellous. But it is not upon this alone, or chiefly, that his fame as one of the great Judges of the world will rest. He was a man of a native, original intellectual power, unsurpassed by any man who has been on the Bench in his time, either in this country or in England. His decisions have been as sound and as acceptable to the profession upon questions where no authority could be found upon which to rest, and upon questions outside of the beaten paths of jurisprudence as upon those where he found aid in his great legal learning. He was a remarkably acceptable nisi-prius Judge, when holding court in the rural counties, and, though bred in a city, where human nature is not generally learned so well, he was especially fortunate and successful in dealing with questions of fact which grow out of the transactions of ordinary and humble life in the country. He manifested on one or two occasions the gift of historical research and discussion for which his uncle Francis was so distinguished.

It was my sorrowful duty to preside at a meeting of the Bar of the Supreme Court of the United States to express their sense of their great loss and that of the whole country, after Gray's death.

I add some extracts from the remarks which I made on that occasion:

The Bar of the Supreme Court of the United States come together to pay a tribute of honor to a great lawyer and Judge. I shall have, I am sure, another opportunity to put on record my own sense of the irreparable loss of a dear friend and comrade of more than fifty years. To-day we are to speak, as members of the Bar, of an honored Judge whom the inexorable shaft has stricken in his high place.

He was in his seat in the Supreme Court of the United States for the last time Monday, February 3, 1902. On the evening of that day he had a slight paralytic shock, which seriously affected his physical strength. He retained his mental strength and activity unimpaired until just before his death. On the 9th day of July, 1902, he sent his resignation to the President, to take effect on the appointment and qualifying of his successor. So, he died in office, September 15, 1902.

On his mother's side Judge Gray was the grandson of Jabez Upham, one of the great lawyers of the day, who died in 1811, at the age of forty-six, after a brief service in the National House of Representatives. He was settled in Brookfield, Worcester County. But the traditions of his great ability were fresh when I went there to live, nearly forty years after his death. The memory of the beauty and sweetness and delightful accomplishment of Mr. Upham's daughter, Judge Gray's mother, who died in the Judge's early youth, was still fragrant among the old men and women who had been her companions. She is mentioned repeatedly in the letters of that accomplished Scotch lady --friend of Walter Scott and of so many of the English and Scotch men of letters in her time--Mrs. Grant of Laggan. Mrs. Grant says in a letter published in her Memoir: "My failing memory represents my short intercourse with Mrs. Gray as if some bright vision from a better world had come and, vanishing, left a trail behind." In another letter she speaks of the enchantment of Mrs. Gray's character: "Anything so pure, so bright, so heavenly I have rarely met with."

The title, which the kindness of our countrymen has given to Massachusetts, that of Model Commonwealth, I think has been earned largely by the character of her Judiciary, and never could have been acquired without it. Among the great figures that have adorned that Bench in the past, the figure of Justice Gray is among the most conspicuous and stately.

Judge Gray has had from the beginning a reputation for wonderful research. Nothing ever seemed to escape his industry and profound learning. This was shown on a few occasions when he undertook some purely historical investigation, as in his notes on the case of the Writs of Assistance, argued by James Otis and reported in Quincy's Reports, and his recent admirable address at Richmond, on Chief Justice Marshall. But while all his opinions are full of precedent and contain all the learning of the case, he was, I think, equally remarkable for the wisdom, good sense, and strength of his judgments. I do not think of any Judge of his time anywhere, either here or in England, to whom the profession would ascribe a higher place if he be judged only by the correctness of his opinions in cases where there were no precedents on which to lean and for the excellent original reasons which he had to give. I think Judge Gray's fame, on the whole, would have been greater as a man of original power if he had resisted, sometimes, the temptation to marshal an array of cases, and had suffered his judgments to stand on his statement of legal principles without the authorities. He manifested another remarkable quality when he was on the Bench of Massachusetts. He was an admirable nisi-prius Judge. I think we rarely have had a better. He possessed that faculty which made the jury, in the old days, so admirable a mechanism for performing their part in the administration of justice. He had the rare gift, especially rare in men whose training has been chiefly upon the Bench, of discerning the truth of the fact, in spite of the apparent weight of the evidence. That Court, in his time, had exclusive jurisdiction of divorces and other matters affecting the marital relations. The Judge had to hear and deal with transactions of humble life and of country life. It was surprising how this man, bred in a city, in high social position, having no opportunity to know the modes of thought and of life of poor men and of rustics, would settle these interesting and delicate questions, affecting so deeply the life of plain men and country farmers, and with what unerring sagacity he came to the wise and righteous result.

Judge Gray's opinions for the eighteen years during which he sat on the Bench of Massachusetts constitute an important body of jurisprudence, from which the student can learn the whole range of the law as it rests on principle and on authority.

And so it came to pass when the place of Mr. Justice Clifford became vacant that by the almost universal consent of the New England Circuit, with the general approval of the profession throughout the whole country, Mr. Justice Gray became his successor. Of his service here there are men better qualified to speak than I am. He took his place easily among the great Judges of the world. He has borne himself in his great office so, I believe, as to command the approbation of his countrymen of all sections and of all parties. He has been every inch a Judge. He has maintained the dignity of his office everywhere. He has endeared himself to a large circle of friends here at the National Capital by his elegant and gracious hospitality. His life certainly has been fortunate. The desire of his youth has been fulfilled. From the time, more than fifty years ago, when he devoted himself to his profession, there has been, I suppose, no moment when he did not regard the office of a Justice of the Supreme Court as not only the most attractive but also the loftiest of human occupations. He has devoted himself to that with a single purpose. He has sought no fame or popularity by any other path. Certainly his life has been fortunate. It has lasted to a good old age. But the summons came for him when his eye was not dimmed nor his natural force abated. He drank of the cup of the waters of life while it was sweetest and clearest, and was not left to drink it to the dregs. He was fortunate also, almost beyond the lot of humanity, in that by a rare felicity, the greatest joy of youth came to him in an advanced age. Everything that can make life honorable, everything that can make life happy-- honor, success, the consciousness of usefulness, the regard of his countrymen, and the supremest delight of family life-- all were his. His friends take leave of him as another of the great and stately figures in the long and venerable procession of American Judges.

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.

Judge Aldrich was appointed to the Bench of the Superior Court of Massachusetts by Governor William B. Washburn after I left the practice of law for public life. I appeared before him in a very few cases and must take his judicial quality largely from the report of others. He was a very powerful and formidable advocate, especially in cases where moral principles or the family relations were concerned, or where any element of pathos enabled him to appeal to the jury. The most tedious hours of my life, I think, have been those when I was for the defendant and he for the plaintiff, and I had to sit and listen to his closing argument in reply to mine. He had a gift of simple eloquence; the influence with juries which comes from earnestness and the profound conviction of the righteousness of the cause he had advocated, and the weight of an unsullied personal character and unquestioned integrity.

Mr. Aldrich's appointment to the Bench came rather late in his life, so he was not promoted to the Supreme Court, which would undoubtedly have happened if he had been younger. He was an excellent magistrate and the author of one or two valuable law books. Although my chief memories of him are of the many occasions on which I have crossed swords with him, and of battles when our feelings and sympathy were profoundly stirred, still they are of the most affectionate character. He had a quick temper and was easily moved to anger in the trial of a case. But as an eminent western Judge is reported to have said in speaking of some offence that had been committed at the Bar, "This Court herself are naterally quick-tempered." So the sparks of our quarrels went out as quickly as they were kindled. I think of P. Emory Aldrich as a stanch and constant friend, from whom, so long as his life lasted, I received nothing but friendliest sympathy and constant and powerful support.

Judge Aldrich, as I just said, was a man of quick temper. He was ready to accept any challenge to a battle, especially one which seemed to have anything of a personal disrespect in it. I was present on one occasion when the ludicrous misspelling of a word, it is very likely, saved him from coming to blows with a very worthy and well-known citizen of Worcester County. Colonel Artemus Lee, of Templeton, one of the most estimable citizens of northern Worcester County, a man imperious and quick-tempered, who had been apt to have his own way in the region where he dwelt, and not very willing to give up to anybody, employed me once to bring suit for him against the Town of Templeton to recover taxes which he claimed had been illegally assessed and collected. He was a man whose spelling had been neglected in early youth. Aldrich was for the Town. All the facts showing the illegality of the assessment, of course, were upon the Town records. So we thought if the parties met with their counsel we could agree upon a statement of facts and submit the question of law to the court. We met in Judge Aldrich's office, Colonel Lee and myself and Judge Aldrich and some of the Town officers, to make up the statement. But Mr. Aldrich had not had time to look very deeply into the law of the case, and made some difficulties in agreeing upon the facts, which we thought rather unreasonable. We sat up to a late hour in a hot summer evening trying to get at a statement. At last Lee's patience gave out. He had had one or two hot passages at arms with Mr. Aldrich in the course of the discussion already. He rose to his feet and said in a very loud and angry tone--his voice was always something like that of a bull of Basham--"This is a farce." Aldrich rose from his seat and to the occasion and said very angrily, "What's that you say, Sir?" Lee clenched both fists by his side, thrust his own angry countenance close up to that of his antagonist, and said, "A farce, Sir--F-A-R-S- E, Farce." Aldrich caught my eye as I was sitting behind my client and noticed my look of infinite amusement. His anger yielded to the comedy of the occasion. He burst into a roar of laughter and peace was saved. If Lee had spelled the word farce with a "c," there would have been a battle royal.

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XXXIX. POLITICAL AND RELIGIOUS FAITH

I close this book with a statement of the political principles which I think define the duty of the American people in the near future, and from which I hope the Republic will not depart until time shall be no more; and of the simple religious faith in which I was bred, and to which I now hold.

They cannot to my mind be separated. One will be found in some resolutions offered in the Senate December 20, 1899. The other in what I said on taking the chair at the National Unitarian Conference, at Washington, in October 1899.

"Mr. Hoar submitted the following resolution:

"WHEREAS the American people and the several States in the Union have in times past, at important periods in their history, especially when declaring their Independence, establishing their Constitutions, or undertaking new and great responsibilities, seen fit to declare the purposes for which the Nation or State was founded and the important objects the people intend to pursue in their political action; and

"WHEREAS the close of a great war, the liberation by the United States of the people of Cuba and Porto Rico in the Western Hemisphere and of the Philippine Islands in the far East, and the reduction of those peoples to a condition of practical dependence upon the United States, constitute an occasion which makes such a declaration proper; Therefore, be it

"Resolved, That this Republic adheres to the doctrines which were in the past set forth in the Declaration of Independence and in its National and State constitutions.

"Resolved, That the purpose of its existence and the objects to which its political action ought to be directed are the ennobling of humanity, the raising from the dust its humblest and coarsest members, and the enabling of persons coming lawfully under its power or influence to live in freedom and in honor under governments in whose forms they are to have a share in determining and in whose administration they have an equal voice. Its most important and pressing obligations are:

"First. To solve the difficult problem presented by the presence of different races on our own soil with equal Constitutional rights; to make the Negro safe in his home, secure in his vote, equal in his opportunity for education and employment, and to bring the Indian to a civilization and culture in accordance with his need and capacity.

"Second. To enable great cities to govern themselves in freedom, in honor, and in purity.

"Third. To make the ballot box as pure as a sacramental vessel, and the election return as perfect in accord with the law and the truth as a judgment of the Supreme Court.

"Fourth. To banish illiteracy and ignorance from the land.

"Fifth. To secure for every workman and for every working woman wages enough to support a life of comfort and an old age of leisure and quiet, as befits those who have an equal share in a self-governing State.

"Sixth. To grow and expand over the continent and over the islands of the sea just so fast, and no faster, as we can bring into equality and self-government under our Constitution peoples and races who will share these ideals and help to make them realities.

"Seventh. To set a peaceful example of freedom which mankind will be glad to follow, but never to force even freedom upon unwilling nations at the point of the bayonet or at the cannon's mouth.

"Eighth. To abstain from interfering with the freedom and just rights of other nations or peoples, and to remember that the liberty to do right necessarily involves the liberty to do wrong; and that the American people has no right to take from any other people the birthright of freedom because of a fear that they will do wrong with it."

SPEECH ON TAKING THE CHAIR AT THE NATIONAL UNITARIAN CONFERENCE, IN WASHINGTON, OCTOBER, 1899

"The part assigned to me, in the printed plan of our proceedings, is the delightful duty of bidding you welcome. But you find a welcome from each other in the glance of the eye, in the pressure of the hand, in the glad tone of the voice, better than any that can be put into formal words.

From hand to hand the greeting goes; From eye to eye the signals run; From heart to heart to bright hope glows; The seekers of the light are one.

Every Unitarian, man and woman, every lover of God or His Son, every one who in loving his fellow-men loves God and His Son, even without knowing it, is welcome in this company.

"We are sometimes told, as if it were a reproach, that we cannot define Unitarianism. For myself, I thank God that it is not to be defined. To define is to bound, to enclose, to set limit. The great things of the universe are not to be defined. You cannot define a human soul. You cannot define the intellect. You cannot define immortality or eternity. You cannot define God.

"I think, also, that the things we are to be glad of and to be proud of and are to be thankful for are not those things that separate us from the great body of Christians or the great body of believers in God and in righteousness, but in the things that unite us with them. No Five Points, no Athanasian Creed, no Thirty-nine Articles, separate the men and women of our way of thinking from humanity or from Divinity.

"But still, although we do not define Unitarianism, we know our own when we see them. There are men and women who like to be called by our name. There are men and women for whom Faith, Hope, and Charity forever abide; to whom Judea's news are still glad tidings; who believe that one day Jesus Christ came to this earth, bearing a Divine message and giving a Divine example. There are women who bear their own sorrows of life by soothing the sorrows of others; youths who, when Duty whispers low, 'Thou must,' reply, "I can'; and old men to whom the experience of life has taught the same brave lesson; examples of the patriotism that will give its life for its country when in the right, and the patriotism that will make itself of no reputation, if need be, to save its country from being in the wrong.

"They do not comprehend the metaphysics of a Trinal Unity, nor how it is just that innocence should be punished, that guilt may go free. They do not attribute any magic virtue to the laying on of hands; nor do they believe that the traces of an evil life in the soul can be washed out by the sprinkling of a few drops of water, however pure, or by baptism in any blood, however innocent, in the hour of death. But they do understand the Ten Commandments and the Golden Rule, and they know and they love and they practise the great virtues which the Apostle tells us are to abide.

"I think there can be found in this country no sectarianism so narrow, so hide-bound, so dogma-clad, that it would like to blot out from the history of the country what the men of our faith have contributed to it. On the first roll of this Washington parish will be found close together the names of John C. Calhoun and John Quincy Adams. John Quincy Adams had learned from his father and mother the liberal Christian faith he transmitted to his illustrious son. If we would blot out Unitarianism from the history of the country, we must erase the names of many famous statesmen, many famous philanthropists, many great reformers, many great orators, many famous soldiers, from its annals, and nearly all of our great poets from its literature.

"I could exhaust not only the time I have a right to take, but I could fill a week if I were to recall their names and tell the story of their lives. Still less could I speak adequately of the men and women who, in almost every neighborhood throughout the country, have found in this Unitarian faith of ours a stimulant to brave and noble lives and a sufficient comfort and support in the hour of a brave death. As I stand here on this occasion, my heart is full of one memory,--of one who loved our Unitarian faith with the whole fervor of his soul, who in his glorious prime, possessing everything which could make life happy and precious, the love of wife and children and friends, the joy of professional success, the favor of his fellow-citizens, the fulness of health, the consciousness of high talent, heard the voice of the Lord speaking from the fever-haunted hospital and the tropical swamp, and the evening dews and damps, saying, 'Where is the messenger that will take his life in his hand, that I may send him to carry health to my stricken soldiers and sailors?' When the Lord said, 'Whom shall I send?' he answered, 'Here am I: send me.'*

[Footnote] * Sherman Hoar, who after a brilliant public and professional career, gave his life to his country by exposure in caring for the sick soldiers of the Spanish war. [End of Footnote]

"The difference between Christian sects, like the difference between individual Christians, is not so much in the matter of belief or disbelief of portions of the doctrine of the Scripture as in the matter of emphasis. It is a special quality and characteristic of Unitarianism that Unitarians everywhere lay special emphasis upon the virtue of Hope. It was said of Cromwell by his secretary that hope shone in him like a fiery pillar when it had gone out in every other.

"There are two great texts in the Scripture in whose sublime phrases are contained the germs of all religion, whether natural or revealed. They lay hold on two eternities. One relates to Deity in his solitude--'Before Abraham was, I am.' The other is for the future. It sums up the whole duty and the whole destiny of man: 'And now abideth Faith, Hope, and Charity,--these three.' If Faith, Hope, and Charity abide, then Humanity abides. Faith is for beings without the certainty of omniscience. Hope is for beings without the strength of omnipotence. And Charity, as the apostle describes it, affects the relations of beings limited and imperfect to one another.

"Why is it that this Christian virtue of Hope is placed as the central figure of the sublime group who are to accompany the children of God through their unending life? It is because without it Faith would be impossible and Charity would be wasted.

"Hope is that attribute of the soul which believes in the final triumph of righteousness. It has no place in a theology which believes in the final perdition of the larger number of mankind. Mighty Jonathan Edwards,--the only genius since Dante akin to Dante,--could you not see that, if your world exist where there is no hope and where there is no love, there can be no faith? Who can trust the promise of a God who has created a Universe and peopled it with fiends? The Apostle of your doleful gospel must preach quite another Evangel: And now abideth Hate, and now abideth Wrath, and now abideth Despair, and now abideth Woe unutterable. With Hope, as we have defined it,--namely, the confident expectation of the final triumph of righteousness,--we are but a little lower than the angels; without it we are but a kind of vermin.

"The literature of free countries is full of cheer: the story ends happily. The fiction of despotic countries is hopeless. People of free countries will not tolerate a fiction which teaches that in the end evil is triumphant and virtue is wretched. Want of hope means either distrust of God or a belief in the essential baseness of man or both. It teaches men to be base. It makes a country base. A world wherein there is no hope is a world where there is no virtue. The contrast between the teacher of hope and the teacher of despair is to be found in the pessimism of Carlyle and the serene cheerfulness of Emerson. Granting to the genius of Carlyle everything that is claimed for it, I believe that his chief title hereafter to respect as a moral teacher will be found in Emerson's certificate.

"But I must not detain you any longer from the business which waits for this convention. It is the last time that I shall enjoy the great privilege and honor of occupying this chair.

"Perhaps I may be pardoned, as I have said something of the religious faith of my fellow Unitarians, if I declare my own, which I believe is theirs also. I have no faith in fatalism, in destiny, in blind force. I believe in God, the living God, in the American people, a free and brave people, who do not bow the neck or bend the knee to any other, and who desire no other to bow the neck or bend the knee to them. I believe that the God who created this world has ordained that his children may work out their own salvation and that his nations may work out their own salvation by obedience to his laws without any dictation or coercion from any other. I believe that liberty, good government, free institutions, cannot be given by any one people to any other, but must be wrought out for each by itself, slowly, painfully, in the process of years or centuries, as the oak adds ring to ring. I believe that a Republic is greater than an Empire. I believe that the moral law and the Golden Rule are for nations as well as for individuals. I believe in George Washington, not in Napoleon Bonaparte; in the Whigs of the Revolutionary day, not in the Tories; the Chatham, Burke, and Sam Adams, not in Dr. Johnson or Lord North. I believe that the North Star, abiding in its place, is a greater influence in the Universe than any comet or meteor. I believe that the United States when President McKinley was inaugurated was a greater world power than Rome in the height of her glory or even England with her 400,000,000 vassals. I believe, finally, whatever clouds may darken the horizon, that the world is growing better, that to-day is better than yesterday, and to-morrow will be better than to-day."

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XL. EDWARD EVERETT HALE

To give a complete and truthful account of my own life, the name of Edward Everett Hale should appear on almost every page. I became a member of his parish in Worcester in August, 1849. Wherever I have been, or wherever he has been, I have been his parishioner ever since. I do not undertake to speak of him at length not only because he is alive, but because his countrymen know him through and through, almost as well as I do.

He has done work of the first quality in a great variety of fields. In each he has done work enough to fill the life and to fill the measure of fame of a busy and successful man. I have learned of him the great virtue of Hope; to judge of mankind by their merits and not their faults; to understand that the great currents of history, especially in a republic, more especially in our Republic, are determined by great and noble motives and not by mean and base motives.

In his very best work Dr. Hale seems always to be doing and saying what he does and says extempore, without premeditation. Where he gets the time to acquire his vast stores of knowledge, or to think the thoughts we all like to hear, nobody can tell. When he speaks or preaches or writes, he opens his intellectual box and takes the first appropriate thing that comes to hand.

I do not believe we have a more trustworthy historian than Dr. Hale, so far as giving us the motive and pith and essence of great transactions. He is sometimes criticised for inaccuracy in dates or matters that are trifling or incidental. I suppose that comes from the fact that while he stores away in his mind everything that is essential, and trusts to his memory for that, he has not the time, which less busy men have, to verify every unsubstantial detail before he speaks or writes. Sir Thomas Browne put on record his opinion of such critics in the "Christian Morals."

"Quotation mistakes, inadvertency, expedition and human Lapses, may make not only Moles but Warts in learned Authors, who notwithstanding, being judged by the capital matter, admit not of disparagement. I should unwillingly affirm that Cicero was but slightly versed in Homer, because in his Work De Gloria he ascribed those verses unto Ajax, which were delivered by Hector. Capital Truths are to be narrowly eyed, collateral Lapses and circumstantial deliveries not to be too strictly sifted. And if the substantial subject be well forged out, we need not examine the sparks which irregularly fly from it."

When Dr. Hale was eighty years old, his countrymen manifested their affection for him in a manner which I think no other living man could have commanded. It was my great privilege to be asked to say to him what all men were thinking, at a great meeting in Boston. The large and beautiful hall was thronged with a very small portion of his friends. If they had all gathered, the City itself would have been thronged. I am glad to associate my name with that of my beloved teacher and friend by preserving here what I said. It is a feeble and inadequate tribute.

The President of the United States spoke for the whole country in the message which he sent:

WHITE HOUSE, WASHINGTON, Mar. 25, 1902.

My dear Sen. Hoar: I very earnestly wish I could be at the meeting over which you are to preside in honor of the eightieth birthday of Edward Everett Hale. A classical allusion or comparison is always very trite; but I suppose all of us who have read the simpler classical books think of Timoleon in his last days at Syracuse, loved and honored in his old age by the fellow citizens in whose service he had spent the strength of his best years, as one of the noblest and most attractive figures in all history. Dr. Hale is just such a figure now.

We love him and we revere him. We are prouder of our citizenship because he is our fellow citizen; and we feel that his life and his writing, both alike, spur us steadily to fresh effort toward high thinking and right living. To have written "The Man Without a Country" by itself would be quite enough to make all the nation his debtor. I belong to the innumerable army of those who owe him much, and through you I wish him Godspeed now.

Ever faithfully yours, THEODORE ROOSEVELT.

I spoke as follows:

"If I try to say all that is in my heart to-night, I do not know where to begin. If I try to say all that is in your hearts, or in the hearts of his countrymen, I do not know where to leave off. Yet I can only say what everybody here is silently saying to himself. When one of your kindred or neighbors comes to be eighty years old, after a useful and honored life, especially if he be still in the vigor of manly strength, his eye not dim or his natural force abated, his children and his friends like to gather at his dwelling in his honor, and tell him the story of their gratitude and love. They do not care about words. It is enough if there be pressure of the hand and a kindly and loving glance of the eye. That is all we can do now. But the trouble is to know how to do it when a man's friends and lovers and spiritual children are to be counted by the millions. I suppose if all the people in this country, and, indeed in all the quarters of the globe, who would like to tell their gratitude to Dr. Hale, were to come together to do it, Boston Common would not hold them.

"There is once in a while, through the quality is rare, an author, a historian, or a writer of fiction, or a preacher, or a pastor, or an orator or poet, or an influential or beloved citizen, who in everything he says or does seems to be sending a personal message from himself. The message is inspired and tinctured and charged and made electric with the quality of the individual soul. We know where it comes from. No mask, no shrinking modesty can hide the individuality. Every man knows from whom it comes, and hails it as a special message to himself. We say, That is from my friend to me! The message may be read by a million eyes and reach a million souls. But every one deems it private and confidential to him.

"This is only, when you come to think of it, carrying the genius for private and personal friendship into the man's dealing with mankind. I have never known anybody in all my long life who seemed to me to be joined by the heart- strings with so many men and women, wherever he goes, as Dr. Hale. I know in Worcester, where he used to live; I know in Washington, where he comes too seldom, and where for the last thirty-three years I have gone too often, poor women, men whose lives have gone wrong, or who are crippled in body or in mind, whose eyes watch for Dr. Hale's coming and going, and seem to make his coming and going, if they get a glimpse of him, the event they date from till he comes again. To me and my little household there, in which we never count more than two or three, his coming is the event of every winter.

"Dr. Hale has not been the founder of a sect. He has never been a builder of partition walls. He has helped throw down a good many. But still, without making proclamation, he has been the founder of a school which has enlarged and broadened the Church into the Congregation, and which has brought the whole Congregation into the Church.

"When he came, hardly out of his boyhood, to our little parish in Worcester, there was, so far as I know, no Congregational church in the country whether Unitarian or of the ancient Calvinistic faith, which did not require a special vote and ceremonial of admission to entitle any man to unite with his brethren in commemorating the Saviour as he desired his friends and brethren to remember him by the rite of the last supper. Until then, the Christian communion was but for a favored few. Mr. Hale believed that the greater the sinfulness of the individual soul the greater the need and the greater the title to be taken into the fellowship and the brotherhood of the Saviour of souls. So, without polemical discussion, or any heat of controversy, he set the example which has been so widely followed. This meant a great deal more than the abolition of a ceremonial or the change of a rubric. It was an assertion of the great doctrine, never till of late perfectly comprehended anywhere, that the Saviour of men came into the world inspired by the love of sinners, and not for an elect and an exclusive brotherhood of saints.

"We are not thinking chiefly of another world when we think of Dr. Hale or when we listen to him. He has been telling us all his life that what the theologians call two worlds are but one; that the Kingdom of God is here, within and around you; that there is but one Universe and not two; that the relation of man to God is that of father and child, not of master and slave, or even of sovereign and subject; that when man wields any of the great forces of the Universe, it is God also who is wielding them through him; that the power of a good man is one of God's powers, and that when man is doing his work faithfully the supreme power of God's omnipotence is with him.

"Dr. Hale has done a good many things in his own matchless fashion. He would have left a remarkable name and fame behind him if he had been nothing but a student and narrator of history, as he has studied and told it; if he had been nothing but a writer of fiction--the author of 'The Man Without a Country,' or 'Ten Times One is Ten,' or 'In His Name'--if he had done nothing but organize the Lend a Hand clubs, now found in the four quarters of the world; if he had been nothing but an eloquent Christian preacher; if he had been nothing but a beloved pastor; if he had been only a voice which lifted to heaven in prayer the souls of great congregations; if he had been only a public-spirited citizen, active and powerful in every good word and work for the benefit of this people; it he had been only the man who devised the plan that might have saved Texas from slavery, and thereby prevented the Civil War, and which did thereafter save Kansas; if he had been only remembered as the spiritual friend and comforter of large numbers of men and women who were desolate and stricken by poverty and sorrow; if he had been only a zealous lover of his country, comprehending, as scarcely any other man has comprehended, the true spirit of the American people; if he had been any one of these things, as he has been, it would be enough to satisfy the most generous aspiration of any man, enough to make his life worth living for himself and his race. And yet, and yet, do I exaggerate one particle, when I say that Dr. Hale has been all these, and more?

"Edward Everett Hale has been the interpreter of a pure, simple loving and living faith to thousands and thousands of souls. He has taught us that the fatherhood and tenderness of God are manifested here and now in this world, as they will be hereafter; that the religion of Christ is a religion of daily living; that salvation is the purifying of the soul from sin, not its escape from the consequences of sin. He is the representative and the incarnation of the best and loftiest Americanism. He knows the history of his country, and knows his countrymen through and through. He does not fancy that he loves his country, while he dislikes and despises his countrymen and everything they have done and are doing. The history he loves and has helped to write and to make is not the history of a base and mean people, who have drifted by accident into empire. It is the history of such a nation as Milton conceived, led and guided by men whom Milton would have loved. He will have a high and a permanent place in literature, which none but Defoe shares. He possesses the two rarest of gifts, that to give history the fascination of fiction, and that to give fiction the verisimilitude of history. He has been the minister of comfort in sorrow and of joy in common life to countless persons to whom his friendship is among their most precious blessings, or by whose fireside he sits, personally unknown, yet a perpetual and welcome guest.

"Still, the first duty of every man is to his own family. He may be a warrior or a statesman, or reformer, or philanthropist, or prophet or poet, if he careth not first for his own household, he is worse than an infidel. So the first duty of a Christian minister is still that of a pastor to his own flock. You know better than I do how it has been here in Boston; but every one of our little parish in Worcester, man or woman, boy or girl, has felt from the first time he or she knew him, ever afterward, that Dr. Hale has been taking hold of his hand. That warmth and that pressure abide through all our lives, and will abide to the end. There are countless persons who never saw his face, who still deem themselves his obedient, loving and perpetual parishioners.

"I knew very well a beautiful woman, left widowed, and childless, and solitary, and forlorn, to whom, after every other consolation seemed to have failed to awake her from her sorrow and despair, a friend of her own sex said: 'I thought you were one of Edward Hale's girls.' The appeal touched the right chord and brought her back again to her life of courage and Christian well-doing.

"He has ever been a prophet of good hope and a preacher of good cheer. When you have listened to one of his sermons, you have listened to an evangel, to good tidings. He has never stood aloof from the great battles for righteousness or justice. When men were engaged in the struggle to elevate the race for the good of their fellow men, no word of discouragement has ever come from his lips. He has recalled no memory of old failure in the past. He has never been found outside the ranks railing at or criticising the men who were doing the best work, or were doing the best work they knew how to do. He has never been afraid to tackle the evils that other men think hopeless. He has uttered his brave challenge to foemen worthy of his steel. Poverty and war and crime and sorrow are the enemies with whom he has striven.

"I do not know another living man who has exercised a more powerful influence on the practical life of his generation. He has taught us the truth, very simple, but somehow nobody ever got hold of it till he did, that virtue and brave living, and helping other men, can be made to grow by geometrical progression. I am told that Dr. Hale has more correspondents in Asia than the London Times. I cannot tell how many persons are enrolled in the clubs of which he was the founder and inspirer.

"But I am disqualified to do justice to the theme you have assigned to me. For an impartial verdict you must get an impartial juryman. You will have to find somebody that loves him less than I do. You cannot find anybody who loves him more. To me he has been a friend and father and brother and counsellor and companion and leader and instructor; prophet of good hope, teacher of good cheer. His figure mingles with my household life, and with the life of my country. I can hardly imagine either without him. He has pictured for us the infinite desolation of the man without a country. But when his time shall come, what will be the desolation of the country without the man?

"And now what can we give you who have given us so much? We have something to give you on our side. We bring you a more costly and precious gift than any jewel or diadem, though it came from an Emperor's treasury.

Love is a present for a mighty King.

"We bring you the heart's love of Boston where you were born, and Worcester where you took the early vows you have kept so well; of Massachusetts who knows she has no worthier son, and of the great and free country to whom you have taught new lessons of patriotism, and whom you have served in a thousand ways.

"This prophet is honored in his own country. There will be a place found for him somewhere in the House of many Mansions. I do not know what will be the employment of our dear friend in the world whose messages he has been bringing to us so long. But I like to think he will be sent on some errands like that of the presence which came to Ben Adhem with a great wakening light, rich and like a lily in bloom, to tell him that the name of him who loved his fellow men led all the names of those the love of God had blessed."

APPENDIX THE FOREST OF DEAN BY JOHN BELLOWS

The Forest of Dean, in Gloucestershire, is one of the very few primeval Forests of Britain that have survived to this century. It has just been my privilege to accompany Senator Hoar on a drive through a portion of it, and he has asked me to write a few notes on this visit, for the American Antiquarian Society, in the hope that others of its members may share in the interest he has taken in its archaeology.

I am indebted for many years' acquaintance with George F. Hoar, through Oliver Wendell Holmes, to the circumstance that the Hoar family lived in Gloucester from the time of the Tudors, if not earlier; and this has led him to pay repeated visits to our old city, with the object of tracing the history of his forefathers. In doing this he has been very successful; and only within the last few months my friend H. Y. J. Taylor, who is an untiring searcher of our old records, has come upon an item in the expenses of the Mayor and Burgesses, of a payment to Charles Hoar, in the year 1588, for keeping a horse ready to carry to Cirencester the tidings of the arrival of the Spanish Armada. And Charles Hoar's house is with us to this day, quaintly gabled, and with over-hanging timber-framed stories, such as the Romans built here in the first century. It stands in Longsmith Street, just above the spot where forty years ago I looked down on a beautiful tessellated pavement of, perhaps, the time of Valentinian. It was eight feet below the present surface; for Gloucester, like Rome, has been a rising city.

Senator Hoar had been making his headquarters at Malvern, and he drove over from there one afternoon, with a view to our going on in the same carriage to the Forest. A better plan would have been to run by rail to Newnham or Lydney, to be met by a carriage from the "Speech House," a government hotel in the centre of the woods; but as the arrangement had been made we let it stand.

To give a general idea of the positions of the places we are dealing with, I may say that Upton Knoll, where I am writing, stands on the steep edge of a spur of the Cotteswold Hills, three and a half miles south of Gloucester. Looking north, we have before us the great vale, or rather plain, of the Severn, bounded on the right by the main chain of the Cotteswolds, rising to just over one thousand feet; and on the left by the hills of Herefordshire, and the beautiful blue peaks of the Malverns; these last being by far the most striking feature in the landscape, rising as they do in a sharp serrated line abruptly from the plain below. They are about ten miles in length, and the highest point, the Worcestershire Beacon, is some fourteen hundred feet above the sea. It is the spot alluded to in Macaulay's lines on the Armada--

Till twelve fair counties saw the blaze on Malvern's lonely height;

and two hundred years before the Armada it was on "Malvern hulles" that William Langland "forwandered" till he fell asleep and dreamed his fiery "Vision of Piers Plowman"--

In a somere season, when softe was the sonne

when, looking "esteward, after the sonne" he beheld a castle on Bredon Hill

Truth was ther-ynne

and this great plain, that to him symbolized the world.

A fair feld ful of folke fonde ich ther bytwyne; Alle manere of men; the meme and the ryche.

Now, in the afternoon light, we can see the towns of Great and North Malvern, and Malvern Wells, nestling at foot of the steep slant; and eight miles to the right, but over thirty from where we stand, the cathedral tower of Worcester. The whole plain is one sea of woods with towers and steeples glinting from every part of it; notably Tewkesbury Abbey, which shines white in the sunlight some fourteen miles from us. Nearer, and to the right, Cheltenham stretches out under Cleeve Hill, the highest of the Cotteswolds; and to the left Gloucester, with its Cathedral dwarfing all the buildings round it. This wooded plain before us dies away in the north into two of the great Forests of ancient Britain; Wyre, on the left, from which Worcester takes its name; and Feckenham, on the right, with Droitwich as its present centre. Everywhere through this area we come upon beautiful old timber-framed houses of the Tudor time or earlier; Roman of origin, and still met with in towns the Romans garrisoned, such as Chester and Gloucester, though they have modernized their roofs, and changed their diamond window panes for squares, as in the old house of Charles Hoar's, previously mentioned.

Now if we turn from the north view to the west, we get a different landscape. Right before us, a mile off, is Robin's Wood Hill, a Cotteswold outlier; in Saxon times called "Mattisdun" or "Meadow-hill," for it is grassed to the top, among its trees. "Matson" House, there at its foot, was the abode of Charles I. during his siege of Gloucester in 1643. To the left of this hill we have again the Vale of the Severn, and beyond it, a dozen miles away, and stretching for twenty miles to the southwest are the hills of the Forest of Dean. They are steep, but not lofty--eight hundred or nine hundred feet. At their foot yonder, fourteen miles off, is the lake-like expanse of the Severn; and where it narrows to something under a mile is the Severn Bridge that carries the line into the Forest from the Midland Railway. Berkeley Castle lies just on the left of it, but is buried in the trees. Thornbury Tower, if not Thornbury Castle, further south, is visible when the sun strikes on it. Close to the right of the bridge is an old house that belonged to Sir Walter Raleigh; and, curiously enough, another on the river bank not far above it is said to have been occupied by Sir Francis Drake just before the coming of the Armada. The Duke of Medina Sidonia, who commanded the Spanish fleet, was ordered to detach a force as soon as he landed, to destroy the Forest of Dean, which was a principal source for timber for the British navy; and it is probable that the Queen's ministers were aware of this and took measures in defence, with which Drake had to do.

Two miles lower than the bridge is the Forest port of Lydney, now chiefly used for shipping coal; and as the ex-Verderer of the Forest resides near it, and he would be able to furnish information of interest to our American visitor, we decided to drive to Lydney to begin.

It was too late to start the same day, however; and Senator Hoar stayed at Upton, where his visit happens to mark the close of what is known as the "open-field" system of tillage; a sort of midway between the full possession of land by freehold, and unrestricted common rights. The area over which he walked, and which for thousands of years has been divided by "meres" and boundary stones, is now to be enclosed, and so will lose its archaeological claims to interest. In one corner of it, however, there still remains a fragment of Roman road, with some of the paving stones showing through the grass of the pasture field. The name of this piece of land gives the clue to its history. It is called Sandford; a corruption of Sarn Ford, from sarnu (pronounced "sarney") to pave; and fford, a road. These are Celtic Cornish and Welsh words; and it should be noted that the names of the Roman roads in the Island as well as those of the mountains and rivers, are nearly all Celtic, and not Latin or Saxon.*

[Footnote] * The Whitcombe Roman Villa, four miles east of Upton, stands in a field called Sandals. In Lyson's description of it, written in 1819 it stands as _Sarn_dells. The paved road ran through the dell. [End of Footnote]

We made a short delay in the morning, at Gloucester, to give Senator Hoar time to go on board the boat "Great Western" which had just arrived in our docks from Gloucester, Massachusetts, to visit the mother city, after a perilous voyage across the Atlantic by Captain Blackburn single-handed. Senator Hoar having welcomed the captain in his capacity of an old Englishman and a New Englander "rolled into one," we set out for Lydney, skirting the bank of one arm of the Severn which here forms an island. It was on this Isle of Alney that Canute and Edmund Ironside fought the single-handed battle that resulted in their dividing England between them.* We pass on to the Island at Westgate Bridge; and a quarter of a mile further leave it by Over Bridge; one of Telford's beautiful works. Just below it the Great Western Railway crosses the river by an iron bridge, the western piers of which rest upon Roman foundations.

[Footnote] * Sharon Turner's "Anglo Saxons," Vol. III., Chap. XV. [End of Footnote]

One remarkable thing which I believe I forgot to mention to George Hoar as we crossed the Island, is, that the meadows on both sides of the causeway belong to the "Freemen" of the city; and that, go back as far as we may in history, we cannot find any account of the original foundation of this body. But we have this clue to it--that Gloucester was made into a Colony in the reign of Nerva, just before the end of the first century; and in each Roman colony lands were allotted to the soldiers of the legions who had become freemen by reason of having served for twenty-five years. These lands were always on the side of the city nearest the enemy; and the lands we are crossing are on the western side of Glevum, nearest the Silures, or South Welsh, who were always the most dangerous enemies the Romans had in Britain. Similarly, at Chester, the freemen's lands are on the west, or enemy's side, by the Dee. In Bath it was the same.

Immediately after passing "Over" Bridge we might turn off, it time permitted, to see Lassington Oak, a tree of giant size and unknown age; but as Emerson says--

There's not enough for this and that-- Make thy option which of two!

and we make ours for Lydney. A dozen miles drive, often skirting the right bank of the Severn, brings us to Newnham, a picturesque village opposite a vast bend, or horse-shoe, of the river, and over which we get a beautiful view from the burial ground on the cliff. The water expands like a lake, beyond which the woods, house-interspersed, stretch away to the blue Cotteswold Hills; the monument to William Tyndale being a landmark on one of them--Nibley Knoll. Just under that monument was fought the last great battle between Barons. This battle of Nibley Knoll, between Lord Berkeley and Lord Lisle, left the latter dead on the field, at night, with a thousand of the men of the two armies; and made Lord Berkeley undisputed master of the estates whose name he bore.

We now leave the river, and turn inland; and in a short time we have entered the Forest of Dean proper; that is, the lands that belong to the Crown. Their area may be roughly set down as fifteen miles by ten; but in the time of the Conqueror, and for many years after, it was much larger; extending from Ross on the north, to Gloucester on the east, and thence thirty miles to Chepstow on the south-west. That is, it filled the triangle formed by the Severn and the Wye between these towns. It is doubtless due to this circumstance of its being so completely cut off from the rest of the country by these rivers that it has preserved more remarkably than any other Forest, the characteristics and customs of ancient British life, to which we shall presently refer; for their isolation has kept the Dean Foresters to this hour a race apart.

Sir James Campbell, who was for between thirty and forty years the chief "Verderer," or principal government officer of the Forest, lives near Lydney. He received us with great kindness, and gave us statistics of the rate of grown of the oak, both with and without transplantation. Part of them are published in an official report on the Forest (A 12808. 6/1884. Wt. 3276. Eyre & Spottiswoode, London) and part are in manuscript with which Senator Hoar has been presented. Briefly, the chief points are these:

In 1784 or thereabouts acorns were planted in "Acorn Patch Enclosure" in the Forest; and in 1800 trees marked A and B were taken from this place and planted opposite the "Speech House." Two, marked D and F, were drawn out of Acorn Patch in 1807 and planted near the Speech House fence. Another, marked N, was planted in 1807, five and one-half feet high, in the Speech House grounds, next the road; and L, M, N, X, have remained untransplanted in the Acorn Patch.

The dimensions were (circumference, six feet from the ground), in inches-- A B D F L M N X In 1814, Oct. 5, 14-3/4 14 11 9-1/2 15-5/8 18-1/2 13 24-1/2 1824, Oct. 20, 29-1/2 28-3/4 25-3/8 22-1/8 22-1/2 23-3/4 30-1/8 32-1/8 1844, Oct. 5, 58-1/2 58 45 46 35 34-1/2 57 44-1/2 1864, Oct. 1, 73-1/2 71 59-1/2 67-3/4 46-1/2 44 73-1/4 56

Another experiment tried by Sir James Campbell himself gave the following results:

Experiment begun in 1861 to test the value, if any, of merely lifting and replanting oak trees in the same holes without change of soil, situation, or giving increased space; as compared with the experiment already detailed, which was begun in 1800.

In 1861, twelve oak trees of about 25 years' growth, which had been self-sown (dropping from old trees afterwards cut down) in a thick plantation, were selected, all within gunshot of each other, and circumferences measured at five feet from the ground. Of these, six were taken up and immediately replanted in the same holes. The other six were not interfered with at all.

Aggregate admeasurement of six Aggregate admeasurement of six dug up and replanted. Marked not interfered with. Marked in in white paint 1, 2, 3, &c. red paint 1, 2, 3, &c. 1861, 24-1/2 inches 27 inches (i. e., 2-1/2 inches more than the transplanted ones, at starting.) 1866, 37-3/4 " 46-1/2 " (i. e., 10-7/8 inches more than the transplanted ones at starting.) 1886, 118-1/4 " 118-5/8 " (i. e., the transplanted ones had now regained 10-1/2 inches.) 1888, 125-1/2 " 123-1/2 " (The transplanted trees in '88 had outgrown the others by 2 ins.) 1890, 133-7/8 " 128 " (The transplanted trees in '90 had outgrown the others by 5-7/8 ins.) 1892, 141 " 131-1/4 " (The transplanted trees in '92 had outgrown the others by 9-3/4 ins.)

Thus proving that merely transplanting is beneficial to oaks; the benefit, however, being greater when the soil is changed and more air given.*

[Footnote] * The Earl of Ducie, who has had very large experience as an arboriculturist, does not hold the view that oaks are benefited by transplanting, if the acorns are sown in good soil. In the case of trees that show little or no satisfactory progress after four years, but are only just able to keep alive, he cuts them down to the root. In the next season 80 per cent. of them send up shoots from two to three feet high, and at once start off on their life's mission. [End of Footnote]

From Lydney a drive of a few miles through pleasant ups and downs of woodland and field, brings us to Whitemead Park, the official residence of the Verderer, Philip Baylis. The title "Verderer" is Norman, indicating the administration of all that relates to the "Vert" or "Greenery" of the Forest; that is, of the timber, the enclosures, the roads, and the surface generally. The Verderer's Court is held at the "Speech House," to which we shall presently come: but the Forest of Dean is also a mineral district, and the Miners have a separate Court of their own. That some of their customs go back to a very remote antiquity we may well believe when we find the scale of which the Romans worked iron in the Forest; a scale so great that with their imperfect method of smelting with Catalan furnaces, etc., so much metal was left in the Roman cinder that it has been sought after all the way down to within the present generation as a source of profit; and in the time of Edward I., one-fourth of the king's revenue from this Forest was derived from the remelted Roman refuse.

I have a beautiful Denarius of Hadrian which was found in the old Roman portion of the Lydney-Park Iron Mine in 1854, with a number of other silver coins, some of them earlier in date; but when we speak of the "mines," the very ancient ones in the Forest were rather deep quarries than what would now be termed mines. As we drive along we now and then notice near the roadside, nearly hidden by the dense foliage of the bushes, long dark hollows, which are locally known as "scowles," another Celtic word meaning gorges or hollows; something like ghyll in the Lake District, "Dungeon Ghyll," and so on. These were Roman and British Hematite mines. If we had been schoolboys I would have taken Senator Hoar down into a scowl and we should both have come back with our clothes spoiled, and our arms full of the splendid hartstongue ferns that cover the sides and edges of the ravine. But they are dangerous places for any but miners or schoolboys; and I shrank from encouraging an enthusiastic American to risk being killed in a Roman pit, even with the ideal advantage of afterwards being buried with his own ancestors in England! So I said but little about them.

The Miners' Court is presided over by another government officer, called the "Gaveller"; from a Celtic word which means holding; as in the Kentish custom of "Gavelkind."* These courts are held in "Saint Briavels" (pronounced "Brevels") Castle: a quaint old building of the thirteenth century, on the western edge of the Forest, where it was placed to keep the Welsh in check. It looks down on a beautiful reach of the river Wye at Bigswear; and it was just on this edge that Wordsworth stood in 1798, when he thought out his "Lines composed a few miles above Tintern Abbey," etc.

Five years have passed; five summers, with the length Of five long winters; and again I hear These waters rolling from their mountain springs With a soft inland murmur. Once again Do I behold these steep and lofty cliffs.

Senator Hoar will recall the scene from the railway below: the

"Plots of cottage ground" that "lose themselves 'Mid groves and copses";

and he will say how exactly the words describe

These hedge-rows; hardly hedge-rows; little lines Of sportive wood run wild,

for they cover yards in width in some places, as he will remember my pointing out to him. The castle is placed on the outside of the Forest and close on the Wye, to guard what was seven centuries ago the frontier of Wales; and the late William Philip Price (Commissioner of Railways and for many years member of Parliament for Gloucester) told me that when he was a boy the Welsh tongue was still spoken at Landogo, the next village down the river, midway between Bigswear and Tintern.

[Footnote] * I suspect "Gaffer," the English equivalent of "Boss," may be the same root: i. e., the taker or contractor. [End of Footnote]

Philip Baylis showed us some of the old parchments connected with the Mine Court; one document especially precious being a copy of the "Book of Denys," made in the time of Edward III. It sets forth the ancient customs which formed the laws of the miners. At this point the Verderer had to settle some matter of the instant, but he put us under the care of a young man who acted as our guide to one of the ancient and giant oaks of the Forest, on the "Church Hill" enclosure, about three-quarters of a mile up the hill above the Park. Nicholls ("History of the Forest of Dean," page 20) thinks the name Church Hill comes from the setting apart of some land here for the Convent of Grace Dieu to pay for masses for the souls of Richard II., his ancestors and successors.

It was a steep climb; and the evening twilight was coming on apace as we followed the little track to the spot where the old oak rises high above the general level of the wood, reminding one of Rinaldo's magical myrtle, in "Jerusalem Delivered":

O'er pine, and palm, and cypress it ascends; And towering thus all other trees above Looks like the elected queen and genius of the grove!

Only that for an oak of similar standing we must say "king" instead of "queen"; emblem as it is of iron strength and endurance.

It is not so much the girth of the tree as its whole bearing that impresses a beholder; and I do not think either of us will forget its effect in the gloom and silence and mystery of the gathering night.

Resisting a kindly pressure to stay the night at Whitemead, that we might keep to our programme of sleeping at the Speech House, we started on the last portion of the long day's drive. The road from Parkend, after we have climbed a considerable hill, keeps mostly to the level of a high ridge. It is broad and smooth; and the moonlight and its accompanying black shadows on the trees made the journey one of great beauty; while the mountain air lessened the sense of fatigue that would otherwise have pressed heavily on us after so long a day amid such novel surroundings. The only thing to disturb the solitude is the clank of machinery; and the lurid lights, as we pass a colliery; and then a mile of two more with but the sound of our own wheels and the rhythm of the horses' feet, and we suddenly draw up at an hotel in the midst of the Forest, its quiet well-lighted interior inviting us through the doorway, left open to the cool summer night air. We are at the Speech House. We had bespoken our rooms by wire in the morning: Senator Hoar had a chambre d'honneur, with a gigantic carved four-post bed that reminded him of the great bed of Ware. His room like my "No. 5," looked out over magnificent bays of woodland to the north. The Speech House is six hundred feet above the sea, and the mountain breeze coming through the wide open window, with this wonderful prospect of oak and beech and holly in the moonlight,--the distance veiled, but scarcely veiled, by the mist, suggest a poem untranslatable in words, and incommunicable except to those who have passed under the same spell. We speak of a light that makes darkness visible; and similarly there are sounds that deepen the long intervals of silence with which they alternate. One or two vehicles driving past; now and then the far-off call of owls answering one another in the woods--one of the sweetest sounds in nature--the varying cadence carrying with it a sense of boundlessness and infinite distance; and with it we fall asleep.

If there is anything more beautiful than a moonlight summer night in the heart of the Forest of Dean, it is its transformation into a summer morning, with the sparkle of dew on the grass, and the sunrise on the trees; with the music of birds, and the freshness that gives all these their charm.

As soon as we are dressed we take a stroll out among the trees. In whichever direction we turn we are struck by the abundance of hollies. I believe there are some three thousand full grown specimens within a radius of a mile of the Speech House. This may be due to the spot having been from time immemorial the central and most important place in the Forest. The roads that lead to it still show the Roman paving-stones in many places, as Senator Hoar can bear witness; and the central point of a British Forest before the Roman time would be occupied by a sacred oak. The Forest into which Julius Caesar pursued the Britons to their stronghold, was Anderida, that is, the Holy Oak; from dar, oak (Sanskrit, daru, a tree), and da, good. It is worth remarking that this idea survives in the personal name, Holyoak; for who ever heard of "Holyelm," or "Holyash," or a similar form compounded of the adjective and the name of any other tree than the oak. If there is an exception it is in the name of the holly. The Cornish Celtic word for holly was Celyn, from Celli (or Kelli), a grove; literally a grove-one; so that the holly was probably planted as a grove or screen round the sacred oak. Such a planting of a holly grove in the central spot of the Forest in the Druid time, would account for these trees being now so much more numerous round the Speech House than they are in any other part of the woods. The Saxon name is merely the word holy with the vowel shortened, as in _holi_day; and that the tree really was regarded as holy is shown by the custom in the Forest Mine Court of taking the oath on a stick of holly held in the hand. This custom survived down to our own times; for Kedgwin H. Fryer, the late Town Clerk of Gloucester, told me he had often seen a miner sworn in the Court, touching the Bible with the holly stick! The men always kept their caps on when giving evidence to show they were "Free miners."

The oaks, marked A. B., of whose growth statistics have already been given, stand on the side of the Newnham road opposite the Speech House. The Verderer is carrying on the annual record of their measurements.

We return to the house by the door on the west; the one at which we arrived last evening. It was then too dark to observe that the stone above it, of which I took a careful sketch several years ago, is crumbling from the effects of weather, after having withstood them perfectly for two centuries. The crown on it is scarcely recognizable; and the lettering has all disappeared except part of the R.

We breakfast in the quaint old Court room. Before us is the railed-off dais, at the end, where the Verderer and his assistants sit to administer the law. On the wall behind them are the antlers of a dozen stags; reminders of the time, about the middle of the present century, when the herds of deer were destroyed on account of the continual poaching to which they gave occasion. Many of the cases that come before the Court now are of simple trespass.

This quaint old room, with its great oak beam overhead, and its kitchen grate wide enough to roast a deer--this strange blending of an hotel dining-room and a Court of Justice, has nevertheless a link with the far distant past more wonderful than anything that has come down to us in the ruins of Greece or Rome.

Look at the simple card that notifies the dates of holding the Vederer's Court. Here is an old one which the Verderer, Philip Baylis, has kindly sent to Senator Hoar in response to his request for a copy.

V. R. Her Majesty's Forest of Dean, Gloucestershire, VERDERERS' COURT. Verderers: Charles Bathurst, Esq. Sir Thomas H. Crawley-Boevey, Bart. Maynard Willoughby Colchester-Wemyss, Esq. Russell James Kerr, Esq. Deputy-Surveyor: Philip Baylis, Esq. Steward: James Wintle. ----NOTICE---- The VERDERERS of Her Majesty's Forest of Dean hereby give Notice that the COURT of ATTACHMENT of our Sovereign Lady the Queen for the said Forest will be holden by adjournment, at the Speech House, in the said Forest, at half-past Two o'clock, in the afternoon, on the following days during the year 1897, viz.: Wednesday, the 27th January; Monday, the 8th March; Saturday, the 17th April; Thursday, the 27th May; Tuesday, the 6th July; Monday, the 16th August; Friday, the 24th September; Wednesday, the 3rd November; Monday, the 13th December; James Wintle, Steward. Newnham, 1st January, 1897.

Many years ago I stood in the Court Room examining a similar notice, puzzled at the absence of any system or order in the times appointed for the sittings, which did not come once a month, or every six weeks; and did not even fall twice in succession on the same day of the week. Turning to the landlord of the hotel I asked, "What is the rule for holding the Court? When is it held?" "Every forty days at twelve o'clock at noon" was the reply. Reflection showed that so strange a periodicity related to no notation of time with which we are now in touch; it must belong to a system that has passed away; but what could this be?

We are reminded by the date of the building we are in (1680), that the room itself cannot have been used for much more than two centuries for holding the Courts.

But there was a Verderer's Court held in several Forests besides this Forest of Dean, long before the Stuart days. The office itself is mentioned in Canute's Forest charter, dating back nearly nine hundred years; and as at that period about a third of England was covered with Forests, their influence must have been very powerful; and local laws and customs in them must have been far too firmly established for such a man as Canute to alter them. He could only have confirmed what he found; much as he confirmed the laws of nature as they affected the tides at Southampton!

The next Forest Charter of national importance after Canute's, is that of Henry III., in 1225. It is clear that he, again, made no material change in the old order of things; and in recapitulating the old order of the Forest Courts, he ordains that the Court of Attachment (called in Dean Forest the Court of the Speech) was to be held every forty days. This Court was one of first instance, simply for the hearing of evidence and getting up the cases for the "Swainmote,"* which came three times a year. The Swains were free man; and at their mote evidence was required from three witnesses in each case, on which the Verderer and other officers of the king passed sentence in accordance with the laws laid down in this Charter. From this Swainmote there was a final appeal to the High Court of the Judges in Eyre (Eyre, from "errer" to wander, being the Norman French for Itinerant, or, on Circuit) which was held once in three years.

[Footnote] * That the Forest Charter of Hen. III. did not establish these courts is proved from a passage in Manwood, cap. 8, which runs thus: "And the said Swainmotes shal not be kept but within the counties in the which they have been used to be kept." [End of Footnote]

The forty-day court was common to all the ancient forests of Britain; and that they go back to before the time of Henry III. is clear from the following extracts from Coke's Fourth Institute, for which I am indebted to the kindness of James G. Wood, of Lincoln's Inn.

CAP. LXXIII. Of the Forests and the Jurisdiction of the Courts [p 289] of the Forest. * * * * * * * And now let us set down the Courts of the Forests--Within every Forest there are these Courts 1. The Court of the Attachments or the Woodmote Court. This is to kept before the Verderors every forty days throughout the year --and thereupon it is called the Forty-day Court--At this Court the Foresters bring in the Attachments de viridi et venalione [&c &c] * * * * * * * 2. The Court of regard or Survey of days is holden every third year [&c &c] * * * * * * * 3. The Court of Swainmote is to be holden before the Verderors as judges by the Steward of the Swainmote thrice in every year [&c] * * * * * * * 4. ------ The Court of the Justice Seat holden before the Chief Justice of the Forest ---- aptly called Justice in eire ------ and this Court of the Justice Seat cannot be kept oftener than every third year. * * * * * * * [319] _For the antiquity of such Forests within England as we have treated of the best and surest argument therof is that the Forests in England (being in number 69) except the New Forest in Hampshire erected by William the Conqueror as a conqueror, and Hampton Court Forest by Hy 3, by authority of Parliament, are so ancient as no record or history doth make any mention of any of their Erections or beginnings._

Here then we have clear evidence that nearly seven hundred years ago the Verderer's Court was being held at periods of time that bore no relation to any division of the year known to the Normans or Plantagenets, or, before them, to the Saxons, or even, still earlier, to the Romans. We are, therefore, driven back to the period before the Roman invasion in Britain, and when the Forest legislation was, as Caesar found it, in the hands of the Druids. In his brief and vivid account of these people he tells us that they used the Greek alphabet; and as he also says they were very proficient in astronomy, it seems clear that they had their astronomy from the same source as their literature. Their astronomy involved of necessity their notation of time. And the Greeks, in turn, owed their astronomy to the Egyptians, with whom the year was reckoned as of three hundred and sixty days; and this three hundred and sixty-day year gives us the clue to the forty-day period for holding the Forest Courts in Ancient Britain.

We cannot fail to be struck, as we examine the old Forest customs, with the constant use of the number three, as a sacred or "lucky" number, on every possible occasion. We have just seen the role it plays in the Mine Court, with its three presiding officials, its jury of multiples of three (twelve, twenty-four, forty-eight); its holly stick oath sworn by three witnesses. We have notice the Swainmote Court, also requiring three witnesses, held three times a year, and subordinate to the Court of Eyre held once in three years; to which should be added the perambulation of the Forest bounds at the same triennial visit in Eyre, when the king's officers were accompanied by nine foresters in fee (three threes) and twenty-four jurors (eight threes).

To go fully into the role of the number three in British traditions would require a profound study; but it may be useful briefly to note its influence on the Bardic poetry-- the Triads, where the subjects are all grouped in threes. Nor was this predilection confined to the Island. We find it affecting the earliest history of Rome itself, with its nine gods ("By the nine gods he swore") and the nine books which the Sibyl destroyed by threes, till the last three were saved. Then we have the evidence in the name nundina* for a market, that the week was originally a cycle not of seven, but of nine days; and our own saying that a given thing is a "nine days wonder" is undoubtedly a survival from the period when the nine days made a week,** for such a phrase expresses a round number or unit of time; not nine separate days.

[Footnotes] * The Romans meant by nundinae periods that were really of eight days; but they made them nine by counting in the one from which they started. So accustomed were they to this method of notation that the priests who had the control of the calendar, upset Julius Caesar's plan for intercalating a day once in four years ("Bissextile") by insisting that the interval intended was three years! Augustus was obliged to rectify this by dropping the overplus day it occasioned. It is this Roman custom of inclusive reckoning which has led to the French calling a week huit jours, and a fortnight, une quinzaine.

** The word week comes from wika (= Norsk vika) to bend or turn. The idea connected with it was no doubt that of the moon's turning from one of its quarters to the next. I can remember when some of the people in "the Island" in Gloucester always made a point of turning any coins they had in their pockets when it was new moon and repeating a sort of invocation to the moon! How or when the nine day week was exchanged by western nations for the seven day one, we do not know; but it is likely that it may have been brought about by the Phoenicians and Jews, who regarded the number seven as the Druids regarded three--as something especially sacred. They had much of the commerce of Southern Europe in their hands, and, therefore, a certain power in controlling the markets, which it would be a convenience to Jews to prevent falling on the sabbath day. The circumstance that the lunar month fitted in with four weeks of seven days no doubt made it easier to effect the change from nundinae. [End of Footnotes]

Shakespeare had been struck with the relationship of the nine day week, alluded to in the proverb, to the more modern one of seven days, as is shown by his very clever juxtaposition of the two in "As You Like It." In Act III., Scene 2, he makes Celia say to Rosalind

"But didst thou hear without wondering how thy name should be hanged and carved upon these trees?"

And Rosalind replies

"I was seven of the nine days out of the wonder before you came"--etc.

Gloucester, down till the Norman time, and after, was the great manufactory of the iron brought from the Forest of Dean. The metal was brought up the Severn by barges, to the quay which stood at the road running straight down from Longsmith Street (in which Charles Hoar's house stands), and buried under all this street we find the cinder and slag of the Roman forges. In Domesday book (which was ordered to be drawn up at a Parliament in Gloucester in 1083) it states that the City had paid to the King (i. e., Edward the Confessor) ten dicres of iron yearly. This is very remarkable, for a dicre was three dozen rods or bars; so that the whole tribute was three hundred and sixty bars, or one bar per day for the Druid year of three hundred and sixty days.*

[Footnote] * For more than a century after Julius Caesar had altered the year to three hundred and sixty-five days, the Roman soldiers were still paid at the ancient rate of three hundred and sixty days only, losing the rest as "terminalia," or days not counted as belonging to the year! The proof of this is that in the time of Domitian a soldier's year's pay divided by three hundred and sixty gives an even number of ases. [End of Footnote]

And now we come back to the Verderer's Court at the Speech House with a clear reason for its being held "every forty days at twelve o'clock at noon."

Forty days was the ninth of the Druid year of three hundred and sixty, and was a period of five weeks of eight days each, but which according to the ancient method of counting were called "nine-days." And the reason the Court sits "at Twelve o'clock at noon" is because the Druid day began at noon. Even now, within ten miles of where I write, the children on Minchinhampton Common, on the Cotteswold hills, keep up "old May Day," which was the opening of the Druid year, though they are ignorant of this. Boys and girls arm themselves on that day with boughs of the beech, and go through certain games with them; but exactly as the clock strikes twelve they throw them away, under pain of being stigmatized as "May fools!"

Well has Oliver Wendell Holmes put it, that "All things are in all things!" Even this commonplace list of Court days in the Forest of Dean becomes a beautiful poem when the light of such a past shines on it; just as the veriest dust of the Krakatoan volcano evolves itself into every color of the rainbow when it rises into the sunset sky.

Since writing this paper I find that Philip Baylis, the Verderer of the Forest of Dean, has kindly sent three or four dozen of young oak trees from the Government plantations, to Washington, in order that they may be planted there and in some other places in the United States, to begin the century with. The State Department of Agriculture has arranged for the planting of these oaks, and the periodical record of their measurements, so that a valuable basis will be established for an experiment that may be carried on for a century, or more; and we, the archaeologists of the nineteenth century, shall have wiped away the stigma implied in the old Aberdeen Baillie's remark, that as Posteerity had never done anything for us, we ought not to do anything for posteerity!

The Earl of Ducie has sent, accompanying these Forest of Dean oaks, four small plants, seedlings from the great Chestnut Tree on his Estate at Tortworth; the largest and oldest of its sort in Great Britain. It measures forty-nine feet round the trunk.

Leaving the Speech House for Coleford and Newland we descend a steep hill for half a mile, and crossing the rail at the Station we begin to ascend the opposite rise through the woods. As the carriage climbs slowly up we keep on the lookout for the margin-stones of the Roman paving which here and there show through the modern metaled surface--pieces fifteen to twenty inches long by about five inches in thickness, and set so deep in the ground that eighteen hundred years' wear has never moved them. They are buttressed on the outer edge by similar blocks set four or five inches lower, and themselves forming one side of the solidly paved water-way or gutter which was constructed as part of every such road on a steep gradient, to secure it from abrasion by flood or sudden rush from heavy rainfall. There are many excellent examples of this in the Forest of Dean. We are on the watch, however, for some part where the "margines" remain on both sides of the way. At last we come upon such a place, and alighting from the carriage we strain the tape measure across at two or three points. The mean we find to be thirteen feet and seven inches. As the Roman foot was just over three per cent. less than ours, this means that the Romans built the road here for a fourteen-foot way. So far as I have examined their roads they were always constructed to certain standard widths--seven feet, nine feet, eleven feet, thirteen feet, fourteen feet, or fifteen feet.

It is not too much to say that most of the main roads in England are Roman; but the very continuity of their use has caused this to be overlooked. All the old roads in the Forest of Dean have been pronounced by the Ordnance Surveyors, after close examination, to bear evidences of Roman paving, although for some centuries since then wheel carriages went out of use here!

There is a vivid description in Statius of the making of an imperial-road through such another Forest (if not indeed this very one!) especially worth recalling here, because it was written at very nearly the period of the building of this track over which we are journeying; i. e., near the end of the first century.

The poet stands on a hill from which he can see the effect of the united work of the army of men who are engaged in the construction: perhaps a hundred thousand forced laborers, under the control of the legionary soldiers who act as the engineers. He makes us see and hear with him the tens of thousands of stone cutters and the ring of their tools squaring the "setts"; and then one platoon after another stepping forward and laying down its row of stones followed by rank after rank of men with the paviours' rammers, which rise and fall at the sweep of the band-master's rods, keeping time in a stately music as they advance; the continuous falling and crashing of the trees as other thousands of hands ply the axes along the lines, that creep, slowly, but visibly, on through the Forest that no foot had ever trodden--the thud of the multitudinous machines driving the piles in the marshy spaces; the whole innumerable sounds falling on the ear like the roaring of a great and vast sea.

The language Statius uses is more simple than mine; but this is substantially the picture he gives: and I know of nothing that so impresses on the imagination the thunder of the power of the Roman Empire as this creation in the wilderness, in one day, of an iron way that shall last for all time.

We are here in the sweet silence of a summer morning, eighteen hundred years after such a scene, and able mentally to catch some glimpse of it; some echo of the storm that has left behind it so ineffaceable a mark.

"I intended to ask you just now whether the man you spoke to in the road was a typical native of the district?" said Senator Hoar. "He was dark and swarthy, with very black hair and piercing eyes; not at all like the majority of people we see in Gloucester for instance." "Yes, he is a typical Forester"; exactly such a man as Tacitus describes his Silurian ancestors; so Spanish in appearance that he tries to account for it by remarking that "that part of Britain lies over against Spain"; as if it was such a short run across the Bay of Biscay to the upper end of the Bristol Channel that nothing would be more natural than for Spaniards to sail over here with their wives and families and become Silures!

These Western Britons, both here in the Forest and in Cornwall certainly remind one of Spaniards. The type is of an older Celtic than that of the present Welsh people proper, as some evidences in the language also point to the occupation being an older one. With respect to this particular district of the Forest and the East of Monmouthshire, one more element must not be left out of the account; and that is, that Caerleon was founded by the second legion being removed to it from Gloucester about the time this road was made; and that it remained for three hundred years the headquarters of that legion, which was a Spanish one raised in the time of Augustus. Forty years ago I remember being at Caerleon (two and one half miles from Newport), when I met the children of the village coming out of school. It was hard to believe they were not Spanish or Italian!

At all events this part of Britain lies over against Boston; and Americans can cross over and see Caerleon for themselves more easily than the people could, of whom Tacitus wrote.

INDEX [omitted]

[Transcriber's notes:

Typed into MS-DOS Editor under Windows XP, using 7-bit characters only. Several errors of punctuation or of single letters have been corrected. The author uses both "contemporary" and "cotemporary."

The Latin has not been checked for spelling, grammar, or sense. The one Greek quotation (of two words) has been omitted.

Words have been hyphenated at the ends of lines only when the words are hyphenated elsewhere in the text or in common usage.]

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