A Lawyer's Recollections in and Out of Court

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Preface

Thackeray says: "Some poet has observed, that if any man would write down what has really happened to hun in this mortal life he would be sure to make a good book, though he never had met with a single adventure from his birth to his burial."

I have occupied my leisure hours by recallmg to mind, and recording, some matters in my experience which may not be without interest.

While there is nothing in my career which so far distinguishes it from that of any other member of the legal profession, who has followed the law for a period of half a century, as to furnish an excuse for anything in the form of an autobiography,

v

PREFACE

I trust that the statement of some things

which have occmred during my professional

life may be of interest, especially to the

yoimger members of the legal profession,

and that the account of the simple way in

which people lived during my boyhood and

youth may not be uninteresting to the

present generation.

G. A. T.

Boston, July, 1910.

VI

Contents

Chapter

I. School Days

II. Harvard University, 1865-'61 III. Country Practice of Law .

IV. The Superior Court

V. The Supreme Judicial Court

Page 1

49 79

Chapter I

I WAS bom at Fitchburg, Massachusetts, in 1838. Fitchburg, now a city of more than thirty.five thousand population, was then a town of less than three thousand inhabitants. There was no raiboad in that portion of the State. Lines of four-horse coaches ran to Boston, Worcester, Keene, New Hampshire, and Brattleboro, Vermont, and four- or six-horse teams were used for the transportation of merchandise. Fitchburg was a flourishing manufacturing town and contained a number of wealthy people, that is, wealthy for those days. The style of living was quite primitive, and there was little or no ostentation of wealth. Nearly every one was engaged 1 1 in some occupation or profession. A few had retired from business, but their style of living did not diflfer materially from that of other well-to-do people of the town. For instance^ I cannot recall in my boyhood days any one who employed a private coachman or drove a pair of horses for pleasure. Nearly all of the prosperous inhabitants lived on the main street, and there was nothing in the size or character of their houses or in the manner of living to distinguish the men of wealth. Nearly all of the houses were of the regular pattern in New England villages, namely, — a house two stories in height, a front door in the middle, the parlor on one side and the sitting room on the other, with three chambers in the second story. The kitchen was usually in an ell in the rear of the house with a chamber above it. I doubt if in my early boyhood there was a dining room in Fitchburg. Meals were served in the

sitting room.

My father was a graduate of Harvard College, a lawyer by profession, and a member of the principal law firm in the northern part of Worcester County, being a partner of Nathaniel Wood under the firm name of Torrey and Wood. He was also cashier of the Fitchburg Bank which was incorporated in 1832 and was the first bank in the northern part of Worcester County. He was not considered one of the wealthiest men of the town, but I do not recollect that our style of living differed in any way from that of the few persons who were richer than my father. Any profuseness of expenditure, or other display of wealth, would have been obnoxious to public opinion.

There was a story told in my boyhood that a retired manufacturer, who was one of the wealthiest men in town and was rather vain of his wealth, was entertaining company in his parlor which was heated, as was the custom in those days> by an open fireplace. He called upon the servant to bring in more wood. The fuel burned in fireplaces was ordinary cord-wood. This wood was cut with an axe into lengths of about four feet. In order to prepare it for use in a fireplace, a stick of cord-wood was sawed twice so as to make three pieces out of each stick. The middle stick of course had been sawed at each end, while the two end sticks had one sawed end and the other chopped by the axe, consequently the middle stick was more symmetrical. When the servant brought the wood to replenish the fire, he brought end pieces, that is pieces sawed on one end and chopped on the other. The host was indignant and, reproving the servant, told him to go out and bring proper wood. This was considered by the other gentlemen present as rather an excess of refinement which ought not to be approved. A short time afterward one of the guests was entertaining company. He also directed the servant to bring in wood. He brought some composed entirely of the middle pieces, sawed at each end. The host told him very scornfully to take that wood out and bring proper wood. The servant returned with wood of which the ends had been painted and striped in brilliant colors. This was the method adopted to indicate that it was not considered good form in Fitchburg for a wealthy person to put on airs.

Lawyers' offices in country villages at that time were small detached buildings, one story in height, usually containing but one room. I remember when a boy of having been sent in the evening on an errand to Torrey and Wood's office and when I opened the door the room was so full of tobacco smoke it was almost impossible to see across it. Both Mr. Wood and my father were great smokers, and

clients also indulged in the same practice.

The prevalent cigar in those days was a variety called Short Sixes. They were made of Cuban tobacco, a very decent tobacco, too, and were sold for a cent apiece. Over the fireplace was a cupboard which contained a large quantity of these Short Sixes to which the company helped themselves according to their pleasure. It was rumored that it was the rule of the oflSce that any person who indulged in profanity or told an improper story should contribute a bunch of Short Sixes to the general stock, and it was also stated that the cupboard was always well supplied by these forfeits* After I arrived at maturity, I endeavored to sound my father in regard to the truth of this rumor, but for some reason I was never able to obtain any satisfactory answer in regard to it. His memory seemed to be defective upon that point. I do not recollect that there was a single

house in Fitchburg heated by a furnace in my boyhood days. There was of course a fire in the kitchen and one in the sitting room. Few persons had fires in their sleeping rooms except in case of sickness. The room which I occupied when a child had no means of warming it. On excessively cold nights, my mother would sometimes warm the bed with a warming pan before I retired. This was a great treat and, for the purpose of enjoying it, I used to frequently pretend that I was in more feeble health than was really the case.

After graduating from college in 1822, my father came to Fitchburg and studied law in the oflSce of John Shepley, a prominent practitioner, a very good lawyer, a thorough gentleman, dignified and honorable, and strictly adhering to the ethics of the profession. He occupied a small office, such as I have described, on the main street in Fitchburg. When absent for a short time in the course of the day, he never locked the door, but would leave the office open so that a client could await his return. Upon one occasion a friend of Mr. Shepley's called at the office during his absence. The door being open as usual, he went in and sat down at the table. Soon after a fanner from a neighboring town came into the office to procure professional advice. Seeing this respectable gentleman sitting at the lawyer's table he took him for Mr. Shepley, with whom he was not personally acquainted. Without asking him who he was, the farmer immediately stated his business and asked his opinion on some question of law- Mr. Shepley's friend was something of a wag and thought he would have a little fun at Shepley's expense. The question of law being a very simple one, he gave an opinion and advised the farmer what course to pursue. The client asked him what his fee was, and he replied that his charge was a ninepence, that is, twelve and

a half cents, which sum was duly paid.

Mr. Shepley's friend never told him of this occurrence, but a few days after another fanner came in to consult with Mr. Shepley. Mr. Shepley made the usual charge of one dollar, and the farmer said, "Squire, you gave advice to farmer so-and-so for twelve and a half cents," and he objected to paying this ^ exorbitant sum. Several people afterwards consulted Mr. Shepley with the same idea that his fee was a ninepence, and it was a long time before Mr. Shepley ascertained the source of this error in regard to the value of his professional services.

During my boyhood Spanish coins were in general circulation. A small silver coin, worth six and a quarter cents, was called a fourpence. A Spanish real, worth twelve and a half cents, was called a ninepence. A shilling was sixteen and two-thirds cents, although I do not recollect any coins circulating at that time of

that value, but the prices in nearly all of the retail stores were always given in shillings and pence. A lady of the present day would be somewhat at a loss if the old system of reckoning the value of goods were suddenly restored. For instance, goods worth thirty-seven and a half cents a yard were always valued at two and threepence, (pronounced two and thrippence) . Seventy-five cents was called four and sixpence. Thirty-three cent goods were estimated at two shillings. Every one in those days was as familiar with the price reckoned in shillings and pence as they are to-day reckoned in dollars and cents.

At that time a one-price store was unknown. This was especially true as applicable to dry goods stores. The aim of a dealer was to procure the highest price possible for the goods. The aim of the purchaser was to purchase them at the lowest possible price, and consequently

during each transaction there was considerable chaffering on one side and the other. I remember frequently seeing some noted contests between bright women and smart clerks. The clerk would show dress goods at four and sixpence per yard. The customer would express great scorn at this price and would perhaps offer three shillings. Then the chaffering would commence, — the salesman would come down somewhat on the price and the customer would make a slight increase in her offer. Frequently the salesman would express great contempt at the offer made and proceed to fold up the goods and put them aVay on the shelf in order to induce the customer to come to his figures. On the other hand, the bright customer would refuse to pay the price charged and start for the door, each party waiting for the other to give way, — the most stubborn prevailing in the contest.

All commercial transactions at that

time, in country towns at least, were conducted in the same way in which horse trades are conducted now. No one in asking a dealer the price of a horse supposes that that is the lowest price at which it can be bought. This custom prevailed during my boyhood in all branches of trade and business. If a dealer had made a great reduction from the first price suggested, he would frequently agree to close the bargain on the condition that the customer should never tell the price paid for the goods.

Many of the coins were worn so thin that the design had been entirely obliterated, and there was nothing left but a smooth piece of silver. Still, the coins would pass at their nominal value unless they were crossed, that is unless a cross had been scratched upon the smooth surface by some sharp instrument. If there was a cross upon a coin it would pass only at a reduced value. For instance, a f ourpence, current at six and a quarter cents, if crossed would pass for five cents; a ninepence, current at twelve and a half cents, would pass for ten cents. How this cross came there was then, and is now, a mystery to me, as no one could be presumed to have voluntarily reduced the value of his own coin.

All retail stores and professional offices opened at seven or eight o'clock in the morning and continued open until nine o'clock at night. The evening trade in the stores, especially in manufacturing towns, was very large.

The fire department of the town, during my boyhood, consisted of three hand engines manned by volunteer companies. It was considered the duty of every good citizen to serve for a year or two at least in one of these companies. After entering the profession and settling at Fitchburg, I joined the company attached to engine number three. Most of the young business and professional men belonged to that company, and it was the aristocratic company of the town. The town had just purchased a new engine called Mazeppa. For the purpose of extra adornment the members of the company had personally subscribed a sum of money to have the engine ornamented with pictures of Mazeppa bound to his flying horse. The engine when in full panoply was a most gorgeous sight.

Once a month there were stated meetings of the company for practice. It was generally the custom to challenge one of the other engine companies for a contest and see which could throw water the highest. I regret to say that companies number one and two almost invariably succeeded in beating the aristocratic number three. Although we thought we had more brains and wealth than the other companies, unfortunately they had considerably more muscle.

We were obliged to turn out at an alarm of fire at any time during the day or night, to haul the engine ourselves to the fire and to operate it sometimes for several hours. There was no fire alarm system. The alarm was given first by shouting, and as soon as possible by ringing the church bells. Many a cold winter night have I been aroused by the alarm of fire and been out on the street before the bell alarm.

It was rather an arduous service, but nobody complained of it, and we were remunerated at the munificent rate of five dollars per annum and a remission of our poll tax, but were liable to a fine for every meeting of the company and for every fire which we did not attend.

Nearly every one regularly attended

church. Church services were held at

ten-thirty in the morning and one-thirty

in the afternoon. Churches were open

on eyery Sunday during the year. The

pastor generally had a vacation during

the month of August. In some cases he was obliged to supply the pulpit himself during that time, but the more wealthy parishes gave their minister a vacation and supplied the pulpit at their own expense.

The church edifices, then called meetinghouses, were nearly all built upon the same general pattern. A high pulpit faced the door as one entered. This pulpit was reached by a double flight of steps, one on each side. The platform, where the clergyman stood, was generally about eight or ten feet above the floor. There was a long gallery on each side of the church which was somewhat higher than the floor of the pulpit. In our church the pulpit was so high that it was inconvenient for anybody but the tallest clergymen. To obviate this diflSculty there was a series of small platforms on hinges which could be raised or lowered to suit the convenience of the minister. A very tall man would not use any of them, a very short man would use

them all.

I remember that my father related a story that on one occasion a very short clergyman was preaching for the first time in our church. He was unaccustomed to this arrangement of adjustable platforms. They all happened to be turned back when he entered the pulpit so that when he stood up for the service there was nothing visible except the top of his head. In order to see the congregation he was obliged to raise himself on tip-toe. He had a small, weak voice, and a most mild and inofiFensive appearance. When the time for the sermon arrived, he arose from his seat and began to preach. By a strenuous efiFort he was just able to look over the top of the pulpit. In his weak and tremulous voice he read the text which was from Matthew 14 : 27, — "It is I, be not afraid." The efiFect upon the congregation in seeing this puny, little man, peeping over the top of the pulpit and endeavoring to assuage the fears of the audience was not

ft 17 conducive to a calm and religious frame of mind.

My father, although a very kind hearted man, was rather strict in rearing his children, and justice was not so far tempered with mercy as to render it ineflFective. What particularly disturbed him in the conduct of his children was any deviation from politeness, or anything that savored of rowdyism or coarseness.

I remember two occasions when I endured corporal punishment which, at the time, seemed to me very unjust. Judge Kinnicutt, who was at that time Judge of Probate for Worcester County, was invited to tea. It happened that we had a new caster. I doubt if the present generation knows what a caster was. It was a stand, generally round and revolving, containing cruets for condiments. There were cruets for red and black pepper, for vinegar, for mustard, and sometimes for oil. It stood

in the middle of the table, so that anybody could reach it and take the bottle which

he desired. This caster to me was a

magnificent work of art. I had never seen

anything like it, and I doubted if any

other existed quite equal to it. I had never

heard of Benvenuto Cellini, but had I

been familiar with his productions I should

not have imagined that he could have

produced so perfect a work. I felt quite

proud that Judge Kinnicutt should learn

that we were the possessors of such a

magnificent object. When we sat down

to the table I kept my eye on him to see

what he would say about our new caster,

but apparently he paid not the slightest

attention to it. I was greatly troubled

to understand the cause of his apparent

inadvertence, and I thought perhaps he

might be near sighted or might not possess

an appreciation of works of high art, but

at all events I was determined that he

should not depart without appreciating

the elegance of our appointments. I was somewhat surprised that neither my father

nor my mother called his attention to it.

I thought it was proper that he should be

aware of its existence, and I shouted to

him across the table that that was our

new caster and asked him how he liked it.

I do not remember his reply, but I shall

never forget how my father liked my

remark. After the Judge departed, father

invited me to the wood-shed and, without

any remarks whatever, made some physical

demonstrations which led me to suppose

that he had been displeased at something,

but what oflFence I had committed I had

not the slightest idea. It never occurred

to me that it was wrong to call the Judge's

attention to our new caster any more than

to a glorious sunset or any other beautiful

object. After the castigation was over, I

requested my father to explain to me the

cause of the infliction, which he did. The

object of punishment, I suppose, is not so

much to cause the offender to suflFer as to prevent the recurrence of the fault. This object was accomplished by this operation, and from that day to this I do not think I ever called the attention of anybody to any possession of which I was proud, or ever took occasion to unduly display it. The other occasion to which I refer is as follows: Nearly opposite our house stood a tin shop. In the rear of the shop was a tin-pedler's cart which, to my certain knowledge, had stood there for ten years without moving a wheel. It was old and ruinous and entirely beyond any useful service. It occurred to some of us boys that it would be a grand idea to hitch a rope to this tin-cart and, pretending it to be a fire engine, to go through the semblance of running to a fire. Some fifteen or twenty boys procured a rope and fastened it to the vehicle, and all of us took hold of it in the same way in which fire companies handled then: engines, and

started out on to the main street of the village shouting fire at the top of our voices.

My father was one of the fire wardens of the town. It was the duty of these oflScers to attend fires. They were a sort of constabulary and had entire control of the people assembled at fires. As an insignia of office, they carried a long pole painted red with a gilt ball upon the top of it. When my father heard the alarm of fire he started out with his fire warden's pole in one hand and a leather fire bucket in the other which at that time was carried to the fires by the fire wardens and some members of the fire companies. . When he came to the front gate he saw what the trouble was. He observed this tin-cart coming down the street with great speed with his hopeful son on the rope yelling fire. The first that I knew of the presence of my paternal ancestor was that I was lifted from *he ground by the collar of my

coat. No conversation took place between father and son, but after reaching the house there was a very vigorous performance for some minutes. The rowdyism of the affair was exceedingly disgusting to my father, but strict justice compels me to add that I think the fright and nervous disturbance which naturally occurred at the alarm of fire, and the sense of the ridiculousness of his position somewhat added to the severity of the castigation.

My mother's method of discipline was much more agreeable, — she indulged in rewards rather than in punishments. In nay young days most nauseous doses of medicine were administered. There were no tablets. All medicine was in a liquid form and no attempt was made to conceal its bitter or nauseous taste. Salts and senna was a favorite prescription and I think that combination is without any question the most dreadful tasting stuff

that was ever concocted. When it was prescribed for me in my early childhood I used to rebel exceedingly against taking it. I utterly refused to swallow it and behaved in a most riotous manner, crying and kicking, and indulging in all sorts of childish insurrectionary movements. I did not indulge in these propensities when my father was present, but if I were alone with mother I knew exactly how to proceed for my own emolument. The more I rebelled the greater inducements my mother would oflFer for me to take the medicine, and I have sometimes made as much as a dollar by drinking a tumbler full of salts and senna. In fact, I used to rely upon this process for replenishing my exchequer.

Fitchburg was not then a Shiretown. All jury trials took place at Worcester. As there were no telegraphs, it was sometimes necessary to be ready and waiting for trial several days before the case was reached, so that the necessary expenses of a jury trial were much greater than at the present time as witness' fees sometimes were very large.

My father was a director in the Worcester Mutual Fire Insurance Company and on the first of every month attended the Directors* Meeting in Worcester. He would hire a horse and buggy, or chaise, drive to Worcester, a distance of twenty-five miles, in the forenoon, attend the Directors' Meeting in the afternoon, and drive back to Fitohburg at night. He did not miss a single meeting for many years. Occasionally he would take me with him. When I was a small boy I used to wait in one of the rooms of the Insurance Company during the sessions of the Board of Directors. There was a large bookcase in the room, and on the top of the case were two plaster casts of a couple of small boys busily engaged in some literary pursuit. I sat and gazed for hours upon, to me, this wonderful production of art, and it used to be the height of

£5 my ambition to become the owner of this statuary. About fifty years after, an itinerant dealer came into my oflBce with his wares and in his collection was a reproduction of the identical statuettes which so excited my boyish adoration. They now adorn a bookcase in my office, but I do not value them as highly as I expected.

Whether people were more honest in those days or whether the criminal classes were not so ingenious, I do not know. It is unaccountable that there were so few robberies when the opportunities were so frequent and tempting. While my father was cashier of the Fitchburg Bank, it was the custom to send money to the Merchants Bank in Boston three days in the week, a trunk being sent to Boston on Monday, Wednesday and Friday and returned on the alternate days. This trunk always contained several thousand dollars

in current bank bills. It was delivered to the driver of the stage-coach at Fitchburg and he carried it under the driver's seat. The space under the seat was open and the trunk could be taken by any one who could obtain access to it. When the coach stopped for dinner, the driver would take the trunk, carry it into the tavern and put his feet on it while at the table. On some occasions there would be nobody on the top of the coach except the driver, but during the many years that this custom continued there was no larceny of this trunk and no attempt, so far as is known, on the part of anybody to steal it. When the coach arrived in Fitchburg on the return trip, the driver would take the tnmk to the bank where my father was ready to receive it. There was no night watchman in the bank and the doors of the vault were of very primitive construction, and could very easily have been opened by expert thieves.

Our house was on the main street in the

«7 village. Almost directly opposite was a primary school kept by Miss Eimice Tainter. This was the only private school in the town. It occupied a small onestory building containing but a single room into which the children were packed as closely as sardines in a box. Miss Tainter was the only teacher. Children of all ages attended. The beginners learned the alphabet, and before graduation were taught the three R's, geography, and a smattering of rhetoric and elocution.

My earliest recollection is that twice a day my mother used to pin a plaid shawl around my shoulders and stand in the doorway to watch me safely across the street on the way to school.

Miss Tainter was a justly celebrated teacher, not only for her learning and conscientious desire to improve the minds of her pupils, but also for her unique system of discipline. Corporal punishment was rarely resorted to and then only in its mildest form. She sought to influence the pupils more by fear and shame than by physical pain. The punishments were always uniform for the same oflfence, therefore the guilty always knew what punishment to expect.

If a pupil was detected in a falsehood he was compelled to stand in the middle of the floor and to repeat in a loud tone of voice the inscription written in chalk upon the stovepipe which ran across the school room, viz., "God sees everything that we do and hears everything that we say." The fact that the Almighty was listening to our falsehood inspired great terror in our youthful minds. If a pupil used a vulgar word. Miss Tainter's invariable remark was that the tongue must be in a very filthy condition to utter such a word, and that it required a thorough cleansing. She would then dip a wet rag in the ashes of the stove and thoroughly

wash and scrape the tongue. We all believed that this process actually removed the cause of the impurity and that we were less likely to fall again into the same error.