A lawyer:s 
 
 R-ECOLLECtlONS 
 
 GEORGE A. TORREY 
 
 CORNELL 
 LAW LIBRARY 
 
CJorti^U SJam ^rljanl ffitbrarg 
 
Cornell University Library 
 
 KF 368.T69A3 
 A lawyer's recollections in and out of c 
 
 3 1924 018 769 376 
 
The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018769376 
 
A LAWYER'S RECOLLECTIONS 
 
A 
 
 LAWYER'S 
 RECOLLECTIONS 
 
 IN AND OUT OF COURT 
 
 BY 
 
 GEORGE ArxORREY 
 
 OF THE MASSACHUSETTS BAE 
 
 BOSTON 
 
 LITTLE, BROWN, AND COMPANY 
 
 1910 
 
Copyright, 1910, 
 By George A. Torret. 
 
 All rights reserved 
 Published, September, 1910 
 
 5rtnlet» 
 
 S. J. PABKHILL & Co., BOSTOH, U. S. A. 
 
PREFACE 
 
 Thackeray says : " Some poet has ob- 
 served, that if any YKlak "w^piild write down 
 what has really happened to him in this 
 mortal hfe 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 
 recalling 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 occurred during my professional 
 
 life may be of interest, especially to the 
 
 younger 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 
 
 
 Chai>t£b. 
 
 Page 
 
 I. School Days 
 
 . . 1 
 
 II. Harvard University, 1855-61 . 
 
 . 49 
 
 III. Country Practice of Law . . 
 
 . 79 
 
 IV. The Superior Court .... 
 
 . 142 
 
 V. The Supreme Judicial Court . 
 
 . 177 
 
A Lawyer's Recollections 
 
 CHAPTER I 
 
 SCHOOL DAYS 
 
 I WAS born 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 railroad in that 
 portion of the State. Lines of four-horse 
 coaches ran to Boston, Worcester, Keene, 
 New Hampshire, and Brattleboro, Ver- 
 mont, and four- or six-horse teams were 
 used for the transportation of merchandise. 
 Fitchburg was a flourishing manufac- 
 turing town and contained a number of 
 wealthy people, that is, wealthy for those 
 days. The style of living was quite primi- 
 tive, and there was little or no ostentation 
 of wealth. Nearly every one was engaged 
 I 1 
 
A LAWYER'S RECOLLECTIONS 
 
 in some occupation or profession. A few 
 had retired from business, but their style 
 of Hving did not differ materially from 
 that of other well-to-do people of the town. 
 For instance, I cannot recall in my boy- 
 hood days any one who employed a private 
 coachman or drove a pair of horses for 
 pleasure. Nearly all of the prosperous in- 
 habitants 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 pat- 
 tern 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. 
 
 2 
 
SCHOOL DAYS 
 
 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 dis- 
 play 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 entertain- 
 ing company in his parlor which was 
 heated, as was the custom in those days, 
 3 
 
A LAWYER'S RECOLLECTIONS 
 
 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 com- 
 4 
 
SCHOOL DAYS 
 
 pany. He also directed the servant to 
 bring in wood. He brought some com- 
 posed 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 impos- 
 sible to see across it. Both Mr. Wood 
 and my father were great' smokers, and 
 clients also indulged in the same practice. 
 
A LAWYER'S RECOLLECTIONS 
 
 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 cup- 
 board which contained a large quantity 
 of these Short Sixes to which the com- 
 pany helped themselves according to their 
 pleasure. It was rumored that it was 
 the rule of the ofiice 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 
 6 
 
SCHOOL DAYS 
 
 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 exces- 
 sively cold nights, my mother would some- 
 times 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 office of John Shepley, a prom- 
 inent practitioner, a very good lawyer, a 
 thorough gentleman, dignified and honor- 
 able, 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 
 
 7 
 
A LAWYER'S RECOLLECTIONS 
 
 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 farmer from a neighboring 
 town came into the office to procure 
 professional advice. Seeing this respect- 
 able 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 ninepen^je, that is, twelve and 
 a half cents, which sum was duly paid. 
 
SCHOOL DAYS 
 Mr. Shepley's friend never told him of 
 this occurrence, but a few days after 
 another farmer 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 t^is 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 w^ sixteen and 
 two-thirds cents, although I do not recol- 
 lect any coins circulating at that time of 
 that value, but the prices in nearly all of 
 
 9 
 
A LAWYER'S RECOLLECTIONS 
 
 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 in- 
 stance, 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 con- 
 10 
 
SCHOOL DAYS 
 
 siderable 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 com- 
 mence, — 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 pro- 
 ceed to fold up the goods and put them 
 away 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 
 
 11 
 
A LAWYER'S RECOLLECTIONS 
 
 conducted in the same way in which horse 
 trades are conducted now. No one in 
 asking a dealer the price of a horse sup- 
 poses 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 obliter- 
 ated, 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 fourpence, current at six and a quarter 
 12 
 
SCHOOL DAYS 
 
 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 pre- 
 sumed 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 busi- 
 ness and professional men belonged to 
 
 13 
 
A LAWYER'S RECOLLECTIONS 
 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 meet- 
 ings 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 suc- 
 ceeded in beating the aristocratic number 
 three. Although we thought we had more 
 brains and wealth than the other com- 
 panies, unfortunately they had consider- 
 ably more muscle. 
 
 We were obliged to turn out at an alarm 
 
 14 
 
SCHOOL DAYS 
 
 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 every Sunday during the year. The 
 pastor generally had a vacation during 
 the month of August. In some cases he 
 15 
 
A LAWYER'S RECOLLECTIONS 
 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 meeting- 
 houses, 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 clergy- 
 man 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 difficulty 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. 
 
 16 
 
SCHOOL DAYS 
 
 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 
 inoflFensive appearance. When the time 
 for the sermon arrived, he arose from his 
 seat and began to preach. By a strenuous 
 eflFort he was just able to look over the 
 top of the pulpit. In his weak and tremu- 
 lous voice he read the text which was 
 from Matthew 14 : 27,— "It is I, be not 
 afraid." The eflFect 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 
 2 17 
 
A LAWYER'S RECOLLECTIONS 
 conducive to a calm and religious frame of 
 mind. 
 
 My father, although a very kind hearted 
 man, was rather strict in rearing his chil- 
 dren, and justice was not so far tempered 
 with mercy as to render it ineffective. 
 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 en- 
 dured 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 
 18 
 
SCHOOL DAYS 
 
 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 shotdd 
 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 
 19 
 
A LAWYER'S RECOLLECTIONS 
 
 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 suffer as to 
 20 
 
SCHOOL DAYS 
 
 prevent the recurrence of the fault. This 
 object was accomphshed 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 sem- 
 blance of running to a fire. Some fifteen 
 or twenty boys procured a rope and fas- 
 tened it to the vehicle, and all of us took 
 hold of it in the same way in which fire 
 companies handled their engines, and 
 started out on to the main street of the 
 21 
 
A LAWYER'S RECOLLECTIONS 
 
 village shouting fire at tlie top of our 
 voices. 
 
 My father was one of the fire wardens 
 of the town. It was the duty of these 
 ofiicers to attend fires. They were a sort 
 of constabulary and had entire control of 
 the people assembled at fires. As an 
 insignia of ofiice, 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 the ground by the collar of my 
 coat. No conversation took place be- 
 22 
 
SCHOOL DAYS 
 
 tween father and son, but after reaching 
 the house there was a very vigorous per- 
 formance for some minutes. The rowdy- 
 ism 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 oc- 
 curred at the alarm of fire, and the sense 
 of the ridiculousness of his position some- 
 what added to the severity of the castiga- 
 tion. 
 
 My mother's method of discipline was 
 much more agreeable, — she indulged in 
 rewards rather than in punishments. In 
 my 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 
 23 
 
A LAWYER'S RECOLLECTIONS 
 prescribed for me in my eariy childhood 
 I used to rebel exceedingly against taking 
 it. I utteriy refused to swallow it and be- 
 haved 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 pro- 
 ceed for my own emolument. The more I 
 rebelled the greater inducements my mother 
 would offer 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 some- 
 times 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 
 
SCHOOL DAYS 
 
 tlie present time as witness' fees some- 
 times were very large. 
 
 My father was a director in the Wor- 
 cester 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 Fitchburg 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 Insur- 
 ance 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 produc- 
 tion of art, and it used to be the height of 
 25 
 
A LAWYER'S RECOLLECTIONS 
 my ambition to become the owner of this 
 statuary. About fifty years after, an 
 itinerant dealer came into my office 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 Mer- 
 chants Bank in Boston three days in the 
 week, a trunk being sent to Boston on 
 Monday, Wednesday and Friday and re- 
 turned on the alternate days. This trunk 
 always contained several thousand dollars 
 in current bank bills. It was delivered 
 26 
 
SCHOOL DAYS 
 to the driver of the stage-coach at Fitch- 
 burg 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 cus- 
 tom 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 trunk 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 
 27 
 
A LAWYER'S RECOLLECTIONS 
 
 village. Almost directly opposite was a 
 primary school kept by Miss Eunice 
 Tainter. This was the only private school 
 in the town. It occupied a small one- 
 story 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 pimish- 
 ment was rarely resorted to and then only 
 28 
 
SCHOOL DAYS 
 
 in its mildest form. She sought to influ- 
 ence 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 
 vvdgar 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 
 29 
 
A LAWYER'S RECOLLECTIONS 
 believed that this process actually re- 
 moved the cause of the impurity and that 
 we were less likely to fall again into the 
 same error. 
 
 But the most terrible punishment of 
 all, reserved for hardened offenders who 
 could not be reclaimed by any less violent 
 procedure, was to compel the refractory 
 pupil to sit between two scholars of the 
 other sex. The girls occupied one side of 
 the school room and the boys the other, 
 but when this dreadful punishment was 
 inflicted the boy, if he was the offender 
 and he generally was, was compelled to sit 
 between two girls. This was a source of 
 great tribulation. The culprit was mor- 
 tally ashamed at being consigned to the 
 company of the other sex. Whether this 
 punishment would be equally effective in 
 schools attended by pupils of more mature 
 age may be somewhat doubtful. 
 
 Once a week each advanced scholar was 
 compelled to write a "composition" and 
 30 
 
SCHOOL DAYS 
 
 read it before the school. I have a dis- 
 tinct recollection of only one literary 
 eflfort of this character, but this I re- 
 member perfectly. It certainly had some 
 merit as it was concise, brief, and not 
 burdened with unnecessary circumlocu- 
 tion. We were allowed to select our own 
 subjects. The entire "composition" to 
 which I refer was as follows : 
 
 " Quinces 
 "Quinces are very good. Some quinces 
 grow on bushes and some do not." 
 
 Upon repeating this to my mother, she 
 was anxious to know how quinces were 
 produced that did not grow on bushes. 
 I consulted the writer and he told me 
 that they grew on trees. 
 
 I do not know what became of this dis- 
 
 tingmshed author, but I am confident that 
 
 if he ever pursued a literary career his 
 
 writings were not diffuse or encumbered 
 
 with unnecessary words. 
 31 
 
A LAWYER'S RECOLLECTIONS 
 
 The school room was heated with an 
 open stove in the middle of the room, and 
 bark was used as fuel. This bark was 
 stored in a barn adjoining the school 
 house, and was in large pieces so that it 
 was necessary to break it up for use. 
 This was done with wooden mallets. 
 Miss Tainter had a device for procuring 
 the performance of this work which, 
 although its subtlety was not apparent 
 to us at the time, afterwards convinced 
 us that she was of a very foxy disposition. 
 She had a rule that the two boys who at 
 the close of each day's schooling had the 
 highest marks for efficiency and good 
 conduct should be allowed, during the 
 next forenoon as a special treat and reward 
 for good behavior, to visit the barn and 
 break up the bark for that day's consump- 
 tion. In this way the fuel was prepared 
 without any expense on her part and to 
 the great satisfaction of the successful 
 candidates who considered themselves not 
 32 • 
 
SCHOOL DAYS 
 
 only as heroes but as having a remarkably 
 good time in this menial occupation. 
 
 This was precisely the scheme adopted 
 by Tom Sawyer to procure the white- 
 washing of his fence without an expendi- 
 ture of labor by himself. When I first 
 read the device employed by that gentle- 
 man I became satisfied that Mark Twain 
 was a plagiarist of the most pronounced 
 character, inasmuch as this scheme was 
 originally adopted by Miss Tainter. 
 
 It was the custom in this school for each 
 scholar upon his birthday, to give what 
 was called a "treat" to the other scholars. 
 This consisted of a gift of some small 
 article of cake, fruit, or confectionery. 
 The donor would pass around the basket, 
 and each scholar would take one of the 
 proffered gifts. I regret to say that most 
 of the pupils, instead of making an expedi- 
 tious choice, examined the articles with 
 considerable care in order to select the 
 best one. We always knew in advance 
 9 33 
 
A LAWYER'S RECOLLECTIONS 
 
 the date of the birthday of the scholars, 
 and would consequently anticipate the 
 "treat" with considerable anxiety. 
 
 I remember there was one scholar in the 
 school whose parents were in very mod- 
 erate circumstances. At the approach of 
 her first birthday after she joined the 
 school the scholars were in great trepida- 
 tion for fear the "treat" would not come 
 up to the ordinary standard, but, to our 
 surprise, it was the most magnificent 
 layout ever known, each scholar receiv- 
 ing an orange together with a stick of 
 candy adorned with exceedingly brilliant 
 colors. This was the first instance where 
 two articles had been furnished. The 
 donor received great applause and there- 
 after, like Abou Ben Adhem's, her name 
 led all the rest. 
 
 While I was a scholar at this school, 
 
 Mr. Alvah Crocker, the President of the 
 
 Fitchburg Railroad Company, invited the 
 
 school upon an expedition to Boston. 
 
 34 
 
SCHOOL DAYS 
 At that time tlie Fitchburg Railroad ex- 
 tended from Boston to Shirley, about ten 
 miles- from Fitchburg. We started early 
 in the morning in a four-horse barge and 
 rode to Shirley, where we took the cars 
 for Boston. The railroad at that time 
 terminated in Charlestown at the westerly 
 end of Warren Bridge. Upon arriving at 
 the station we ate lunch, which each one 
 brought from home, and afterward formed 
 a procession and marched across Warren 
 Bridge to the outskirts of the city proper. 
 Our procession must have made an im- 
 mense impression upon the public who 
 were sufficiently fortunate to witness it. 
 I think the illustration of Cruikshank, 
 depicting the march of the "Indigent 
 Orphans" in Dickens' sketch of the dinner 
 of the "Indigent Orphans' Friends' Benev- 
 olent Institution" correctly represented 
 our appearance on the march. It was up 
 to that time the most striking event in 
 our lives, and our countenances indicated 
 35 
 
A LAWYER'S RECOLLECTIONS 
 
 that we fully appreciated the situation. 
 After this journey we felt that we had 
 exhausted the pleasures of travel, and had 
 seen everything that was worth seeing on 
 the face of the globe. 
 
 I remained at this school until I was 
 nine years old. My playmates who at- 
 tended the public schools, and they were 
 generally children of parents who could 
 not afford to send their children to a 
 private school, were accustomed to taunt 
 me with still being under the control of a 
 female teacher as something unworthy of 
 the manhood and intelligence of a boy of 
 my mature age. Consequently I was 
 anxious to attend the public school, but 
 my parents refused their consent. 
 
 During the political campaign of 1848, 
 when General Taylor was the Whig can- 
 didate for the Presidency, Miss Tainter, 
 who belonged to the Peace Society and 
 considered all fighting as grossly immoral, 
 told the pupils that General Taylor was 
 36 
 
SCHOOL DAYS 
 
 a murderer. Inasmuch as my father was 
 an enthusiastic Whig and Chairman of 
 the Town Committee, it at once occurred 
 to me that this sentiment would not meet 
 with his approbation, and consequently I 
 saw in it a loop hole by which I could 
 escape from Miss Tainter's school. At 
 the dinner table I told my father of the 
 sentiments which Miss Tainter expressed 
 concerning his candidate for the Presidency, 
 His astonishment and anger exceeded my 
 fondest hopes. He immediately declared 
 that he would not allow me to be under a 
 teacher of that character another day, 
 fearing, I suppose, that I would become 
 a mollycoddle if I remained longer under 
 such influences. My mother endeavored 
 to moderate my father's anger somewhat, 
 and he finally so far abated his wrath 
 that he told me on my return to the school 
 for the afternoon session to ask Miss 
 Tainter if, in her opinion, General Wash- 
 ington was a murderer, and if she an- 
 37 
 
A LAWYER'S RECOLLECTIONS 
 
 swered in the affirmative to leave the 
 school immediately. 
 
 With great trepidation I returned to 
 school in the afternoon and immediately 
 propounded this interrogatory to Miss 
 Tainter. My heart was fluttering, fearing 
 that in some way she would except General 
 Washington from her denunciation. But 
 the good lady stood to her colors. She 
 said that Washington was a good man in 
 many respects and was greatly endeared 
 to his countrymen, but truth compelled 
 her to state that, in her opinion, he was 
 a murderer. This was enough for me. I 
 gathered up my books and shook the dust 
 of that school from my feet. 
 
 Having thus escaped through the com- 
 bined influences of my father's wrath and 
 Miss Tainter's peaceful principles from 
 remaining longer under a female teacher, 
 I attended the grammar school kept by 
 Charles Lamb, a celebrated and successful 
 teacher, but whose name was strangely 
 38 
 
SCHOOL DAYS 
 
 misleading, affording a clear case of lucuS 
 a non lucendo. Althougli a very con- 
 scientious, worthy, and upright man, and 
 one respected by his pupils, he was not 
 lamb-like in disposition, but one of the 
 most rigid disciplinarians that I ever knew. 
 In his school there was no appeal to the 
 moral or religious susceptibilities of the 
 pupils, no reading of inscriptions on stove- 
 pipes or incarceration between two female 
 pupils. The discipline in this school was 
 by the ruler and rattan, and there were 
 few days when they did not flourish with 
 considerable celerity. 
 
 At the age of twelve I entered the high 
 school at Fitchburg and, if I carried 
 nothing else away from that school, I cer- 
 tainly learned one philosophical principle. 
 
 The teacher was standing with his back 
 to the school when I took occasion to 
 discharge a catapult, throwing a paper 
 missile against one of the boys on the other 
 side of the room. Unfortunately at the 
 39 
 
A LAWYER'S RECOLLECTIONS 
 
 time the teacher happened to be looking 
 in a mirror which hung on one of the school 
 room walls and detected me in the act. 
 My punishment consisted in standing on 
 the floor of the school room keeping my 
 finger on the head of a nail in the floor. 
 If any one thinks this is a slight punish- 
 ment, I advise him to try it. When I 
 was released, the principal made this 
 remark to me : "The reason that I was 
 able to detect your act was that I hap- 
 pened to be looking at the mirror and, 
 although neither you nor I was directly 
 in front of the looking glass, I was able 
 to see you distinctly. This is an example 
 of the universal law of optics, viz., that 
 the angle of incidence is equal to the angle 
 of reflection, and I trust you will never 
 forget it." I never did, and I have never 
 thought of it since without recalling my 
 agony in holding my finger on the head of 
 that nail. 
 
 In 1853 I entered Leicester Academy, 
 40 
 
SCHOOL DAYS 
 
 at that time a celebrated school, in order 
 to fit for college. My chum and myself 
 occupied a front room in one of the best 
 houses in town on the main street opposite 
 the Academy, and the price of the room 
 and board was two dollars and twenty- 
 five cents a week each. 
 
 There was, however, in town a palatial 
 boarding place where the rate was three 
 dollars a week, and after much persuasion 
 our parents allowed us to enter this estab- 
 lishment. This was in a house occupied 
 by one Billings Swan, who was employed 
 in a card factory. The house was large 
 and there were eight or ten students room- 
 ing there, and two or three more who had 
 their meals at the table. The bill-of-fare 
 here was as good as anybody could ex- 
 pect or reasonably demand. The whole 
 work of the establishment, including all the 
 cooking, washing, and care of rooms, was 
 done by Mrs. Swan and her son. This 
 good lady carried on this establishment 
 41 
 
A LAWYER'S RECOLLECTIONS 
 
 for years, althougli during that time she 
 was afflicted with rheumatism so that she 
 was quite lame. I never knew her to 
 complain of her work, and she certainly 
 never suffered from nervous prostration 
 or was compelled to take vacations of 
 several months in the summer or an occa- 
 sional trip to Europe in order to keep up 
 sufficient vitality to discharge her house- 
 hold duties. There were giants in those 
 days. In order to furnish the same accom- 
 modations which this good lady and her 
 son were able to provide would now 
 require a cook and a corps of servants, 
 with a corresponding increase iu the price 
 of board. 
 
 Alvan H. Washburn was the principal 
 of the Academy. He had a genius for 
 the management of pupils of both sexes. 
 He adapted his punishments to each 
 individual case. He never inflicted cor- 
 poral punishment, but he had the faculty 
 of making a scholar who violated the rules 
 42 
 
SCHOOL DAYS 
 
 feel about as small as it was possible for 
 a human being to feel. 
 
 I well remember a case in which I was 
 involved which, although the joke was 
 upon myself, is too good to be concealed. 
 
 While the senior class in Latin was 
 engaged in reciting to the principal in the 
 recitation room, he was summoned to 
 attend to callers. The recitation room 
 was in the second story of the building. 
 The principal went downstairs into his 
 reception room, which was directly under- 
 neath the recitation room. As the stairs 
 were not carpeted we thought we should 
 undoubtedly hear him on his return and 
 thus be notified of his approach. He was 
 gone a long time, and for the purpose of 
 amusement, I assumed his chair and 
 continued the recitation, imitating his 
 manner as well as I was able. This caused 
 some merriment, and it was undoubtedly 
 heard by Mr. Washburn in the room below. 
 At all events, the first we knew of his return 
 
A LAWYER'S RECOLLECTIONS 
 
 he entered the room while I occupied his 
 chair with his spectacles on my nose and 
 in the customary attitude which he always 
 assumed. It is needless to say that I 
 resumed my seat about as expeditiously 
 as possible and awaited my punishment 
 with fear and trembling. The principal's 
 countenance was perfectly calm, with 
 nothing to indicate that he had noticed 
 anything at all out of the way when he 
 entered the room. He resumed his chair 
 very quietly, and it seemed to me that 
 for about three weeks there was total 
 silence in that room. I suppose, as a 
 matter of fact, it might have been thirty 
 seconds. The principal then spoke very 
 deliberately and calmly as follows : 
 
 "It is often said that history repeats it- 
 self, and the occurrence that I have just wit- 
 nessed is an instance that the remark is true. 
 When I was fitting for college, during a 
 recitation the principal was called from 
 the room exactly as I was called out to-day. 
 44 
 
SCHOOL DAYS 
 
 He was gone a long time, and one of the 
 scholars, by way of a joke, went out and 
 captured a goose and put it in the prin- 
 cipal's chair. The principal, hearing some 
 noise in the recitation room, returned so 
 quietly that his approach was not ob- 
 served. He opened the door and found 
 a goose in his chair, as I have done 
 to-day." 
 
 This was the whole punishment, and 
 it was undoubtedly sufficient. If there 
 had been a knot hole in the door, I have 
 no doubt I could have escaped through it 
 at the time without the slightest difficulty. 
 
 During my course at Leicester Academy 
 politics in Massachusetts were running 
 very high. It was at the time Anthony 
 Burns, the fugitive slave, was carried back 
 from Boston amid great excitement. There 
 came near being serious riots, and it was 
 only through a great exhibition of military 
 strength that he was successfully removed 
 from the Commonwealth. The excitement 
 45 
 
A LAWYER'S RECOLLECTIONS 
 
 of the people throughout the whole State 
 was intense. The old line Whigs and 
 Democrats, although they by no means 
 approved of slavery or were in favor of 
 the fugitive slave law, were yet determined 
 that the laws of the United States should 
 be enforced. The Free Soilers, on the 
 other hand, were determined to liberate 
 the slave if possible. So great was the 
 excitement of the people that, on the 
 day in which Burns was removed from 
 the State, bells were tolled in many of the 
 cities and towns throughout the Common- 
 wealth, including Leicester. Some of the 
 students who called themselves Whigs or 
 Democrats or, in other words, whose 
 fathers were of that political faith, con- 
 sidered that the triumph of law and order 
 should be celebrated in some way. Con- 
 sequently, about nine o 'clock at night, two 
 or three of us broke into the church by 
 forcing a window and rang the bell with 
 great vigor for several minutes. As several 
 46 
 
SCHOOL DAYS 
 
 of us had hold of the rope, the bell gave 
 forth most joyous peals. But a calamity 
 happened that we had not anticipated. 
 It was understood by the inhabitants to 
 be an alarm of fire. The fire company 
 assembled dragging the fire engine, and 
 there was great excitement throughout 
 the whole village. We succeeded in escap- 
 ing from the church and regained our 
 rooms without detection and, so far as I 
 know, this is the first time that history 
 records the true perpetrators of this out- 
 rage. As the Statute of Limitations has 
 long since barred any prosecution for this 
 oflfence, it is now confessed. 
 
 In those days politics were a much more 
 serious business than at present, and 
 young boys were more interested in po- 
 litical subjects, of course following the 
 predilections of their fathers. 
 
 My father reprimanded me in a letter 
 for my conduct on this occasion, but I 
 imagined that, in spite of himself, there 
 47 
 
A LAWYER'S RECOLLECTIONS 
 
 appeared through the whole of this repri- 
 mand a certain gleam of satisfaction that 
 the Free Soilers in Leicester were some- 
 what checkmated by the unruly perfor- 
 mances of his son. 
 
 48 
 
CHAPTER II 
 
 HARVARD UNIVERSITY 
 
 1855- '61 
 
 In 1855 I entered Harvard College, having 
 successfully passed the examination in 
 July of that year. My principal recollec- 
 tion of the examination was that the 
 weather was exceedingly hot. I wore a 
 pair of white duck trousers. We sat upon 
 seats newly painted black. After sitting 
 in this position several hours, on attempt- 
 ing to rise I found that I was apparently 
 tightly glued to the seat. For a few 
 moments I thought it was easier to enter 
 college than it was to depart, but I finally, 
 with much difficulty, extricated myself 
 with a black impression of the bench on 
 the seat of my trousers. 
 4 49 
 
A LAWYER'S RECOLLECTIONS 
 
 These were the days of small things. 
 Our class numbered one hundred upon 
 entering college and ninety-four at gradua- 
 tion. The number of professors was but 
 a small fraction of those at present. The 
 faculty consisted of thirteen persons, and 
 the whole corps of instructors in the 
 undergraduate department of nineteen 
 only. 
 
 In spite of the great progress made by 
 the University since our day, I do not 
 think that the graduates leave college 
 now with a better equipment than in our 
 time. I presume that the best scholars 
 are better equipped than we were, but I 
 do not think the class, as a whole, acquires 
 such a love of literary pursuits as we had, 
 and such an intellectual training as will 
 enable them to enjoy the benefits of their 
 college course in whatever sphere they 
 may occupy. I know we studied more 
 than the students do to-day, and our 
 personal association with the professors 
 SO 
 
HARVARD UNIVERSITY 
 
 was of great service. The professors, in 
 our day, conducted recitations in person. 
 They knew every member of the class by 
 name, and our intercourse with them was 
 frequent and intimate. 
 
 All of the studies of the freshman and 
 sophomore years were required of each 
 student. The same was also true of all 
 the studies of the junior and senior years 
 excepting ancient and modern languages 
 and mathematics. These during the last 
 two years were elective, that is to say, 
 each student elected two. In some studies 
 the class was divided into four divisions, 
 in others into two divisions only, and the 
 whole class attended lectures, consequently 
 each student was acquainted with every 
 member of his class, and intimately ac- 
 quainted with those in his own division. 
 There was consequently a much stronger 
 class feeling in those days than at present 
 when, as I am informed, students can 
 graduate without becoming acquainted 
 51 
 
A LAWYER'S RECOLLECTIONS 
 
 with some of their classmates even by 
 sight. 
 
 The three upper classes had an exercise 
 in themes once in four weeks. The sub- 
 jects were selected by the Boylston Pro- 
 fessor of rhetoric and oratory and were 
 the same for each student. I remember 
 the subject of the first theme assigned to 
 our class in the sophomore year. It was 
 as follows : — "The ancient Cretans, when 
 they desired to curse a man, prayed the 
 gods to indulge him in some evil habit." 
 It was practically impossible for literary 
 gentlemen of our capacity to write a 
 theme upon this subject without indulging 
 in unmitigated twaddle. We did not have 
 the privilege to use the subject merely as 
 a caption to our essay, after the manner 
 of Montaigne, and to introduce any sub- 
 ject which pleased our fancy, but were 
 obliged seriously to write upon the subject 
 assigned. Each theme was required to 
 be four pages in length. After struggling 
 52 
 
HARVARD UNIVERSITY 
 
 for several days I made out to write three 
 pages, and this only by coarse chirography 
 with great spaces between the words so 
 that each page looked more hke a page 
 from Webster's spelling book than a con- 
 nected narrative. It was impossible for 
 me to continue and extend my lucubra- 
 tions onto the fourth page. What would 
 happen to a student who should send in 
 a theme of three pages only, I was ignorant, 
 but I apprehended some dreadful result. 
 In my despair I sent the theme to my 
 father, relating to him the predicament 
 in which I found myself, and exhorting 
 him, through his affection for his only 
 son, to aid me in my difficulty. My 
 father, having graduated from Harvard 
 College nearly forty years before, I as- 
 sumed of course would be perfectly quali- 
 fied to write upon any literary subject, 
 and I supposed he could fill out the 
 remaining page without the slightest diffi- 
 culty. He afterwards informed me that 
 53 
 
A LAWYER'S RECOLLECTIONS 
 
 he sat up a good part of the night endeav- 
 oring to comply with my request. In his 
 despair he consulted a volume of Hugh 
 Blair's sermons. One sentence in my 
 father's addendum was taken literally 
 from Professor Blair. I have never for- 
 gotten it and can now repeat it from 
 memory, — "The mind turns back upon 
 itself like a bird bewildered in a stormy 
 sky." I was rather pleased with my 
 father's work and sent in the theme with 
 considerable confidence. To my utter 
 astonishment I found that Professor Child, 
 who had criticised the whole theme with 
 considerable vigor, had spent the most of 
 his force upon the fourth page and espe- 
 cially upon the sentence cribbed from Pro- 
 fessor Blair, who, as is well known, was a 
 distinguished professor of rhetoric. This 
 sentence was marked, "Vague and mean- 
 ingless. How can a mind turn back upon 
 itself ?" I intended, after graduation, to 
 inform Professor Child that he was criti- 
 54 
 
HARVARD UNIVERSITY 
 
 cising a distinguished professor of rhetoric 
 instead of the tyro who was supposed to 
 have written the theme. Although the 
 theme received a very low mark, I had 
 the gratification of feeling that I could 
 compose twaddle with greater success 
 than my father or Professor Blair. 
 
 Each of the professors had a nickname 
 by which he was universally known and 
 called by the class, and these names were 
 evidence of the endearment in which they 
 were held. Corney Felton, Benny Peirce, 
 Fanny Bowen, Joe Lovering, Stubby Child, 
 Jopey Cook, were so called, not from any 
 familiarity or contempt on the part of 
 the students, but as pet names indicating 
 aflfection and esteem. 
 
 Each one of these professors was a 
 
 master in his profession and I do not think 
 
 that it is any disparagement to many of 
 
 their successors to say that they have not 
 
 achieved a reputation equal to that of 
 
 their predecessors. 
 
 55 
 
A LAWYER'S RECOLLECTIONS 
 
 Is there any matliematician in Cam- 
 bridge to-day wlio has the national repu- 
 tation enjoyed by Benjamin Peirce? Any 
 botanist equal to Asa Gray? Greek 
 scholars like Felton and Sophocles? Or 
 any one who could so infuse into the stu- 
 dents a love of English literature as Pro- 
 fessor Child? 
 
 Professor Child was of more service to 
 me in my profession than any teacher I 
 ever sat under. His constant advice to 
 the students, not to mind their style but 
 to be clear and intelligible, was of great 
 service to me in addressing juries and 
 judges. I have thought of it hundreds of 
 times, and by reason of this injunction 
 endeavored to make myself clearly under- 
 stood. 
 
 President Eliot was our tutor in mathe- 
 matics during the freshman and sopho- 
 more years, and he showed the acumen 
 and excellent judgment which has char- 
 acterized his whole career by giving me 
 56 
 
HARVARD UNIVERSITY 
 
 a perfect mark in mathematics during the 
 two years' course. 
 
 Perhaps the most picturesque character 
 in our day was Evangelinus Apostohdes 
 Sophocles, tutor of Greek. He was a 
 native Greek, and looked exactly like the 
 busts of the old Grecian heroes. No one 
 knew much about his history before he 
 appeared in this country, but there were 
 various rumors that he had been a monk 
 in a Greek convent. He lived in a room 
 in Holworthy and, as I recollect, boarded 
 himself, preparing his meals in his room. 
 It was said that he had animal pets in the 
 room, among others chickens and white 
 mice. He was a kind hearted man, but 
 a man of strong prejudices and with an 
 immense will. When he made up his mind 
 upon any subject, and he was very apt 
 to make it up quickly, there was no chang- 
 ing him. An opinion once entertained was 
 fixed forever. 
 
 I had an unfortunate experience the 
 57 
 
A LAWYER'S RECOLLECTIONS 
 
 first day that we recited to him. I was 
 translating from the Alcestis of Euripides. 
 At the close of my recitation, Sophocles 
 said, — "How did you translate the last 
 line?" I repeated it and he said, — 
 "Some translations have it so, but it is in- 
 correct." He marked me for that recita- 
 tion "two" on a scale of "eight," "eight" 
 being perfection, and during the whole of 
 my college course every recitation before 
 him was marked "two" because he be- 
 lieved that I had used a pony (a transla- 
 tion) in preparing my recitations. I had 
 several interviews with him, and assured 
 him that he was mistaken and that I had 
 never seen a translation or pony in my 
 life, but, unfortunately, I had made the 
 same blunder in the translation of a certain 
 word that was made in Bohns' translation, 
 and nothing could induce Sophocles to 
 change his mind that I was in the habit 
 of using a pony. Consequently, for the 
 two years that I recited to him I was 
 58 
 
HARVARD UNIVERSITY 
 
 marked "two" when I should have been 
 marked at least "seven." This materially 
 affected my standing in the class. 
 
 Considering that I was unjustly treated, 
 I had an interview with President Walker 
 in regard to it. I stated the circumstances 
 to him. He listened very attentively to 
 my statement, and when I had finished he 
 said that he believed every word that I had 
 said; that my standing in other studies, 
 and especially in other languages, would 
 seem to indicate that the mark of "two" in 
 Greek was unjust. President Walker said 
 he would bring the matter before the 
 faculty if I insisted upon it, as he thought 
 it was due to me as a matter of justice 
 that it should be considered by the faculty 
 and that some relief should be granted, 
 but he said if that was done he had no 
 doubt that Sophocles would resign as he 
 was very sensitive, very self-willed, and 
 not subject to control by anybody. Dr. 
 Walker then asked me whether, as a friend 
 59 
 
A LAWYER'S RECOLLECTIONS 
 
 and well wisher to the University, I would 
 be willing to submit to this injustice rather 
 than to deprive the college of the services 
 of Sophocles who, he said, was probably 
 the most eminent Greek scholar in the 
 world. Of course there was but one answer 
 to this appeal. 
 
 The life of the under graduate in those 
 days was very diflferent from what it is at 
 present. Especially, so far as relates to 
 the conduct and appearance of the stu- 
 dents, there was no apparent diflference 
 between the rich and the poor. In our 
 class were several sons of wealthy parents, 
 but their manner of living was exactly 
 the same as that of the remainder of the 
 class. These students roomed in the col- 
 lege buildings, in a single room with a chum, 
 in the same way that the rest of us did. 
 I suppose they spent more money than 
 the average in some personal matters, 
 but there was no display, nothing of the 
 vulgarity of wealth, no horses, no magnifi- 
 60 
 
HARVARD UNIVERSITY 
 
 cent rooms or furniture, and, of course, no 
 automobiles. 
 
 About one-half of the students roomed 
 in the dormitories in the college yard. 
 Some of the rooms were much more desir- 
 able than others. In Holworthy Hall 
 there were suites containing a parlor and 
 two bedrooms, but all the other dormi- 
 tories contained only single rooms. The 
 rent of all the rooms was the same, and 
 rooms were assigned to the students on the 
 following plan: — Each room had a cer- 
 tain number of room marks connected 
 with it, — that is, if a person occupied a 
 very poor room he received to his credit 
 a large number of room marks. Rooms 
 were drawn each year. For instance, a 
 student entering as a freshman, and oc- 
 cupying one of the freshman rooms, was 
 entitled to a certain number of marks. If 
 he occupied a poor room, at the end of the 
 year he had a high number of marks to 
 his credit; if he occupied a good room, he 
 61 
 
A LAWYER'S RECOLLECTIONS 
 
 had but few marks. Before the end of the 
 freshman year there would be a new draw- 
 ing and assignment of rooms. Any student 
 who desired to occupy a room in one of 
 the college dormitories would send in his 
 application with a list of rooms which he 
 desired, arranged in the order of his choice. 
 The freshman who had the highest num- 
 ber of room marks, that is, the freshman 
 who had occupied the poorest room during 
 the freshman year, was entitled to the first 
 choice, and was sure to receive the room 
 which he desired. If, during the sopho- 
 more year, he had selected one of the best 
 rooms, he would, of course, accumulate 
 but few marks during that year, and would 
 consequently not stand so well for his 
 choice for the junior year. Upon entering 
 college, I was advised by a friend who had 
 just graduated to be content with rather 
 poor rooms during the first three years of 
 the course in order to be sure of one of the 
 best suites in Holworthy for the senior 
 
HARVARD UNIVERSITY 
 
 year. I adopted this course and in my 
 senior year liad the second best suite in 
 Holworthy, that is, the suite of rooms on 
 the east end of the building on the fourth 
 floor. 
 
 When I entered college, the rent and 
 care of a room in one of the college dormi- 
 tories was but twenty dollars a year, and 
 good table board could be obtained for 
 three dollars and a half per week, and the 
 best of board for four dollars per week. 
 
 Everything of course was very much 
 cheaper than at present. My whole 
 expense during the four years of the col- 
 lege course, including board, clothing, 
 tuition, books, amusements, and in fact 
 all expenses of every kind and description, 
 did not exceed the sum of twenty-eight 
 hundred dollars, or seven hundred dollars 
 per year, and I am confident that I spent 
 as much as the average of the class. 
 
 Athletics did not hold so important a 
 position in the college curriculum as at 
 63 
 
A LAWYER'S RECOLLECTIONS 
 
 present, and they were not so scientifically 
 cultivated. On the first Monday of each 
 term, it was the custom to have a football 
 game between the Sophomore and Fresh- 
 man classes upon what was called the 
 " Delta." This is now the site of Memorial 
 Hall. The game took place after supper, 
 and the nobility of Cambridge used to 
 appear as spectators. The game was not 
 conducted upon scientific principles, and 
 but little attention was paid to the ball. 
 The two classes would line up in different 
 ends of the field and, at a given signal, 
 would proceed to assault each other, — 
 the only endeavor was to hit somebody or 
 something, no matter whom or how. If 
 during the scrimmage the ball was carried 
 from one end of the field to the other, the 
 game was supposed to be won, but how the 
 ball got there was a matter of considerable 
 doubt. After this game was over there 
 was a second game immediately held in 
 which the seniors joined the sophomores 
 64 
 
HARVARD UNIVERSITY 
 
 and the juniors joined the freshmen. 
 This game was conducted upon more 
 scientific principles than the initial game, 
 but to the player of the present day would 
 appear archaic. These games constituted 
 about all the attention paid to football 
 during the college course. 
 
 I do not remember that there were any 
 baseball games played or any other sport 
 indulged in by the students except boat- 
 ing. In short, I believe that in those 
 days it was understood that the principal 
 object of a student at Harvard University 
 was the acquiring of knowledge and not 
 proficiency in athletic sports. 
 
 George A. Schmitt was instructor in 
 German. As my study of German was 
 very limited in extent, I am unable to say 
 whether he was a good German scholar. 
 But I am very confident that, so far as 
 politeness and gentlemanly instincts are 
 concerned, he was sadly lacking. I took 
 German as an elective in the junior year. 
 5 65 
 
A LAWYER'S RECOLLECTIONS 
 
 At the first recitation, after I had recited, 
 the tutor said to me, with considerable 
 scorn, — " God Almighty never intended 
 you for a German scholar." I am inclined 
 to think he was right in this statement, 
 but the time and manner of his utterance 
 were not at all pleasing. I determined not 
 to sit under that man any longer if there 
 was any possible means of escape. I there- 
 fore again sought the presence of President 
 Walker. I was well aware that he was 
 very unwilling to allow students to change 
 their elective after they had once chosen. 
 Upon being ushered into his presence he 
 asked me what he could do for me. I told 
 him that I wished to change my elective 
 from German to Greek. He said that 
 could not be done unless there was a very 
 important reason for it. I replied that 
 there was, as I had been informed that I 
 should be thwarting the designs of the 
 Almighty by continuing my German 
 studies. I then told him of the theological 
 66 
 
HARVARD UNIVERSITY 
 
 opinion of Instructor Schmitt. It tickled 
 the old gentleman's fancy, as he had quite 
 an appreciation of humor, and he said 
 that he should be exceedingly sorry not to 
 assist me in every way in furthering the 
 Almighty plan, and consequently, with- 
 out the slightest hesitation, consented that 
 I should change my elective to Greek, and 
 I migrated from the vulgarity of Schmitt 
 to the urbanity and grace of Professor 
 Felton. 
 
 Schmitt's predecessor was Bernard 
 Rolker. He resigned at the end of my 
 freshman year so that I had no personal 
 experience with him, but the following 
 anecdote came down to us from our pred- 
 ecessors. He was conducting a recita- 
 tion of the Class of 1857 in which certain 
 German exercises which the class had 
 previously passed in were under considera- 
 tion. These exercises consisted of a trans- 
 lation from English into German. One 
 of the class discovered that the exercise 
 67 
 
A LAWYER'S RECOLLECTIONS 
 
 submitted to them was an Englisli trans- 
 lation of a passage from Goethe which 
 they were to render into German. The 
 student, thinking that he could not im- 
 prove upon Goethe's style, oflfered the 
 passage from Goethe verbatim et literatim 
 as his solution of the problem. It was 
 of course obvious to the instructor that 
 the student's German bore such a remark- 
 able resemblance to that of Goethe that, 
 on the doctrine of chances, it was clearly 
 a literal transcription from that author. 
 With his usual polite, mild manner, he 
 
 said, — "Mr. F , is this exercise all 
 
 your own work?" The student replied, 
 with an air of great gravity, — "So far 
 as the chirography is concerned, it is. Sir." 
 Emile Arnault was instructor in French. 
 He was a very intelligent man, of great 
 courtesy and refinement, a perfect example 
 of the true French gentleman. He had 
 been obliged to leave France on account 
 of some revolutionary enterprise in which 
 68 
 
HARVARD UNIVERSITY 
 
 he had been engaged. He was intensely- 
 patriotic, and I regret to say that we used 
 his fervid patriotism for the vile purpose 
 of escaping recitations. At our request 
 he would frequently recite the Marseillaise 
 hymn, after which he was invariably so full 
 of nervous excitement that he was unable 
 to conduct the recitation and was obliged 
 to dismiss the class. Therefore, if for any 
 reason we wished to cut the recitation 
 we would ask him to repeat the Marseil- 
 laise. He would always comply, and when 
 he was through he would apologize to us 
 for being obliged to omit the recitation, 
 stating that he was in such a nervous con- 
 dition that he could not carry it on. I 
 have no doubt he thought we were exceed- 
 ingly complaisant in so cordially comply- 
 ing with his request. 
 
 The chair of chemistry was filled by Pro- 
 fessor Cook. My chief recollection of the 
 chemical course is of the abominable 
 smells which arose from various experi- 
 69 
 
A LAWYER'S RECOLLECTIONS 
 
 merits conducted by the Professor. He 
 was an estimable gentleman. He would 
 occasionally make some remark to a stu- 
 dent whicli rightly or wrongly caused some 
 oflfence, and would sometimes express his 
 opinion on the very bad performance of a 
 student in language which was rather 
 vigorous. One of my classmates was 
 reproved for a poor recitation in terms 
 which the student thought were uncalled 
 for. After the recitation was over he went 
 to the Professor's desk and complained 
 of the treatment he had received. I hap- 
 pened to be standing near at the time and 
 heard the conversation. My classmate 
 said, — "Professor Cook, I think you are 
 entirely unjustified in the way in which 
 you treated me during the recitation and 
 that your remarks were insulting." Pro- 
 fessor Cook, apparently with great sur- 
 prise, said, — "What did I say that leads 
 you to make this accusation?" My 
 classmate rehearsed the occurrence with 
 70 
 
HARVARD UNIVERSITY 
 
 mucli feeling, and as he was both grieved 
 and angry he severely criticised the con- 
 duct of the Professor. Professor Cook 
 heard him very attentively, and when he 
 had finished the Professor merely said, — 
 "I accept your apology." This was such 
 a complete surprise that my classmate 
 could not find words for utterance and 
 the interview ceased at that point. 
 
 On one occasion when the Class of '57 
 was reciting, one of the students was 
 called up and asked some question which 
 he was entirely unprepared to answer. 
 Instead of studying his lesson, he had 
 spent the forenoon in a walk and his 
 boots were covered with Cambridge clay. 
 The question put to him was this, — "Is 
 aluminum widely distributed in nature?" 
 The student had not the slightest idea 
 whether it was as prevalent as air or 
 whether it was as scarce as radium, but 
 replied in the affirmative, expressing the 
 opinion that this useful substance was 
 71 
 
A LAWYER'S RECOLLECTIONS 
 
 widely distributed. The Professor, look- 
 ing at his boots which were in plain sight 
 as he sat in the front row, said, — "You 
 have answered correctly, and your boots 
 furnish proof of the truth of the answer." 
 
 Joseph Lovering was professor of math- 
 ematics and natural philosophy. During 
 our college course the first Atlantic cable, 
 after several ineffectual attempts, was 
 successfully laid. While these operations 
 were in progress Professor Lovering dem- 
 onstrated to the class that it was impos- 
 sible to transmit telegraphic messages 
 across the ocean. I do not remember 
 the ground of his belief, but we all left 
 the lecture with the firm impression that the 
 Atlantic cable would never succeed. The 
 next morning the papers contained an 
 account of the messages which had been 
 exchanged between Queen Victoria and 
 the President of the United States. 
 
 One of the most eccentric characters 
 among the officers was John Langdon 
 72 
 
HARVARD UNIVERSITY 
 
 Sibley, the librarian. Mr. Sibley gave 
 his whole attention to books. He appeared 
 never to speak or think of anything but 
 books, and he apparently had no favorites 
 among them. Literature to him was a 
 democracy. There was no aristocracy, 
 but each book was of equal importance 
 with every other one. Any book that could 
 be added to the college library was a 
 treasure. Any old pamphlet or handbill, 
 or any other conceivable object in print, 
 was received by him with great gratitude 
 and carefully preserved. According to 
 Mr. Sibley, nothing was ever printed that 
 was not of value or might not become of 
 value in future ages, and if he had had his 
 way everything that was printed would 
 have been included in the Harvard Li- 
 brary. The students sometimes would 
 present him with some worthless old pam- 
 phlet by way of a joke, but it was always 
 received in entire good faith and with an 
 
 appreciation of its value. 
 73 
 
A LAWYER'S RECOLLECTIONS 
 
 Morning prayers were at seven A. M. and 
 evening prayers at five p. m. The attend- 
 ance upon both was compulsory except- 
 ing that we were allowed to omit twenty 
 prayers during the term. It was the 
 custom of students to attend regularly 
 until within the last twenty days of the 
 term and then to cut all the remain- 
 ing morning prayers so as to indulge in 
 the luxury of remaining in bed without 
 being obliged to respond to the Chapel 
 bell. 
 
 Prayers were ordinarily conducted by 
 Professor Francis and Professor Noyes of 
 the Divinity School, although occasionally 
 President Walker would officiate. Pro- 
 fessor Noyes usually offered the same 
 prayer every time that he conducted the 
 services. The morning prayer commenced, 
 as nearly as I can recollect, with the follow- 
 ing stereotyped expression: "We thank 
 thee, oh God, for the peaceful slumbers of 
 the past night from which we have arisen 
 74 
 
HARVARD UNIVERSITY 
 
 strengthened and refreshed for the labors 
 of the day." 
 
 I remember in our sophomore year, the 
 Class of '57 had their class supper which 
 lasted, as is usual in such cases, during 
 the entire night. The class entered the 
 Chapel in the morning in the most dilapi- 
 dated condition, several of the students 
 being so exhausted that they fell asleep 
 as soon as they sat down. The sight of 
 the class in this somnolent condition 
 presented rather a striking contrast to 
 the thankfulness of the learned Divine for 
 the refreshing slumbers of the past night, 
 and I fear that the prayer on that morning 
 was more conducive to merriment than to 
 religious contemplation and improvement. 
 After graduating, I attended the Law 
 School at Cambridge for three terms. It 
 is unnecessary to state that of course I 
 received the degree of LL.B. at the end 
 of the course, inasmuch as the only re- 
 quirement at that time for this degree was 
 75 
 
A LAWYER'S RECOLLECTIONS 
 
 that a person should enter his name as a 
 student at the Law School and pay his 
 term fees. If he did this, he received his 
 degree. It was not necessary to spend a 
 single day in Cambridge or to open a law 
 book. I never knew that any one availed 
 himself of this lax discipline but it was 
 possible to do so. At all events no exami- 
 nation was necessary. 
 
 There were three professors in the Law 
 School, — Joel Parker, Theophilus J*ar- 
 sons and Emory Washburn, each one of 
 them a character as diflferent from the 
 others as could well be imagined, but all 
 were good lawyers and greatly respected 
 by the students. 
 
 Professor Parsons was wont to indulge 
 in jokes, many of which were very good. 
 I remember on one occasion a military 
 company marched by the Law School with 
 full band and drums beating. The noise 
 was such that he was obliged to suspend 
 his lecture. When the clamor had sub- 
 76 
 
HARVARD UNIVERSITY 
 
 sided the Professor very quietly said, — 
 "Inter arma silent leges." 
 
 A portion of our instruction consisted 
 in arguing questions of law before one of 
 the professors in the moot courts, so called. 
 When Professor Parsons was the presiding 
 judge he had a stereotyped form of an- 
 nouncing his judgment which was delivered 
 immediately after the argument. It ran 
 something in this way: — "I have care- 
 fully listened to the very able arguments 
 on both sides of this question, and have 
 given due weight to all that has been said 
 by the disputants, and have come to the 
 following conclusion." He would then 
 draw from his pocket a written opinion 
 which he would read. I fear that he did 
 not listen to our arguments with an un- 
 prejudiced mind. 
 
 The instruction in the Law School at 
 
 that time mainly consisted of two lectures 
 
 a day, one at eleven and one at twelve, 
 
 and the moot courts above mentioned. 
 
 77 
 
A LAWYER'S RECOLLECTIONS 
 
 Between the lectures there was an inter- 
 mission of fifteen minutes which was 
 spent by many of the students in visiting 
 the restaurant opposite the Law School 
 kept by one Lyon who, on account of the 
 color of his hair, was universally know as 
 the "Tawny Lyon." There each student 
 would drink a glass of half-and-half which, 
 almost invariably, rendered us somnolent 
 during the next lecture. 
 
 78 
 
CHAPTEE III 
 
 COUNTRY PRACTICE OF LAW 
 
 After graduating, I entered the law firm 
 of Wood and Bailey at Fitchburg as a 
 student. Nathaniel Wood, the senior part- 
 ner, was one of the leading lawyers in 
 Worcester County, certainly the leading 
 lawyer outside of the city of Worcester. 
 He was formerly a partner of my father. 
 Mr. Wood used to arrive at the ofl&ce 
 every morning at eight o'clock remaining 
 until one, when he dined. Returning at 
 two o'clock he staid -until six, when he 
 went to supper. After supper he returned 
 to the office and never left before eight 
 o'clock, and sometimes later, receiving 
 clients and doing office work in the even- 
 ing exactly the same as during the day. 
 
 That is the way lawyers lived and worked 
 79 
 
A LAWYER'S RECOLLECTIONS 
 
 in 1859 and, as I said in regard to Mrs. 
 Swan, there was very little nervous pros- 
 tration nor were many long vacations 
 required. 
 
 It was my duty in the morning before 
 breakfast to sweep out the office and light 
 the fire before Mr. Wood arrived at eight 
 o'clock. I performed this duty daily 
 while I remained a student in the office. 
 It never occurred to me at the time that 
 it was a degradation for a graduate of 
 Harvard College to perform these menial 
 duties. The result was that, like Sir 
 Joseph Porter, I so carefully polished the 
 handle of the big front door and performed 
 other duties of that kind that Mr. Wood, 
 upon the death of Mr. Bailey, offered to 
 take me as a partner, and this offer I joy- 
 fully accepted. 
 
 I was admitted to the bar in June 1861. 
 
 At that time if a student had studied three 
 
 years in the Law School, or in an office 
 
 of an attorney, he was admitted to the 
 
 80 
 
COUNTRY PRACTICE OF LAW 
 
 bar without examination; otherwise an 
 examination was necessary. There were 
 then no bar examiners, but the examina- 
 tions were conducted by one of the judges 
 in person. 
 
 Judge Thomas Russell of the Superior 
 Court was holding the term at Fitchburg 
 when I applied for admission. At the 
 adjournment of the court for the day, he 
 called me to the Judge's desk and pro- 
 pounded various interrogatories which he 
 evidently had prepared during the after- 
 noon session of the court. I think I an- 
 swered all of them correctly excepting the 
 last. This question was an inquiry as to how 
 far the criminal jurisdiction of the Com- 
 monwealth of Massachusetts extended 
 over navigable waters. I had not the 
 slightest idea, as the question never had 
 occurred to me and I had read nothing 
 upon the subject. I told the Judge I was 
 unable to answer the question, as I had 
 never considered it to be a material one, 
 6 81 
 
A LAWYER'S RECOLLECTIONS 
 
 so far as my practice was concerned, inas- 
 much as I proposed to practice in Wor- 
 cester County and I was confident that 
 the jurisdiction of the Commonwealth 
 extended over the whole of that territory. 
 The Judge thereupon stated that he 
 thought it was safe to let me loose upon 
 the community, and I was admitted to 
 the bar on the following morning, and 
 on the same day entered into partnership 
 with Mr. Wood. 
 
 Although the firm of Wood and Bailey 
 had the largest practice of any legal firm 
 in Worcester County outside of the city 
 of Worcester, they had never divided in 
 any year net earnings of over three thou- 
 sand dollars, that is, fifteen hundred dol- 
 lars apiece. Mr. Wood's charge, when I 
 went into company with him, for trying 
 a case in the Superior Court was ten dol- 
 lars a day. His charge for consultation 
 was from one to five dollars, and I have 
 known a fee of fifty cents to be charged 
 
COUNTRY PRACTICE OF LAW 
 
 where the matter was of slight importance. 
 For drafting deeds the price was one dol- 
 lar. Wills were from two to five dollars. 
 
 During my college course, and especially 
 while in the Law School, I had become 
 somewhat familiar with the charges of 
 lawyers in Boston. Soon after I was ad- 
 mitted to the firm, I told Mr. Wood that 
 I thought he was charging ridiculously low 
 prices and that he ought to increase them 
 very materially. For instance, I suggested 
 that he should never appear in court for 
 less than twenty-five dollars. Mr. Wood 
 heard me very patiently and said that if 
 I saw fit to try the experiment he was will- 
 ing to consent; that it concerned me much 
 more than it did him because he was at 
 that time sixty years old and it was of not 
 much importance to him whether the 
 business increased or decreased during the 
 short time that he would continue in prac- 
 tice, but he thought the result would be 
 that the business would be ruined. Upon 
 83 
 
A LAWYER'S RECOLLECTIONS 
 
 my persisting, we adopted the increased 
 prices and the income of the office was 
 doubled at once without any diminution 
 of practice. 
 
 Mr. Wood, with almost unparalleled 
 generosity, took me into the firm as an 
 equal partner. He stated as his reason for 
 doing so that he was of advanced age and 
 thought he might possibly continue in 
 practice ten or twelve years longer. If so, 
 during the first of the period, of course I 
 should be receiving much more than I 
 could fairly be said to earn, but he thought 
 that during the last portion of the period, 
 as he was retiring from practice, I should 
 be doing much more than half of the 
 wosk. Accordingly he considered that 
 an equal division was fair. I do not 
 think that many persons would have con- 
 sidered the subject in that way, and I 
 was always very grateful to him for his 
 magnanimity. 
 
 As another illustration of the way in 
 
COUNTRY PRACTICE OF LAW 
 
 which prices and living expenses have in- 
 creased, Mr. Wood, who was married 
 during the third decade of the nineteenth 
 century, told me that he spent, during 
 the first year of his married life, the sum 
 of six hundred dollars, which included all 
 his personal expenses of every kind and 
 description. He kept house in one of the 
 best houses in the town. I think he owned 
 it at the time so that there was no house 
 rent to pay. But the sum of six hundred 
 dollars included his entire living expenses, 
 — fuel, lights, provisions, the wages of one 
 servant, clothing for himself and wife, 
 horse hire, and whatever sums were spent 
 for amusements and entertainment. This 
 sum was so extravagant that it was univer- 
 sally understood that it exceeded the living 
 expenses of any other couple in town, and 
 some of the wealthy men of that period 
 were clearly of the opinion th^, for a 
 young attorney like Mr. Wood, this ex- 
 pense was so exorbitant and reckless that, 
 85 
 
A LAWYER'S RECOLLECTIONS 
 
 in all probability, he would come to want 
 on account of his extravagance. 
 
 Mr. Wood had beautiful white hair. 
 A few years before I went into company 
 with him, for some reason he began to dye 
 his hair, and continued this practice dur- 
 ing the rest of his life. At the next term 
 of the court at Worcester after he had 
 made this change in his personal appear- 
 ance, at the calling of the docket on the 
 first day of the term when a case of Mr. 
 Wood's was reached, he rose from his seat 
 and stated to the court that he desired 
 to have the case continued inasmuch as 
 his client had died since the last ad- 
 journment of the court. "So has his 
 Attorney," shouted Judge Benjamin F. 
 Thomas. The joke was so good that 
 Judge Thomas was not called to order for 
 this interruption. 
 
 It was a great advantage to me to enter 
 this flourishing and long established firm 
 as it at once put me into an extensive and 
 86 
 
COUNTRY PRACTICE OF LAW 
 
 varied practice, and consequently there 
 were few if any young lawyers in the Com- 
 monwealth who had the amount of practice 
 that I had during the first years of my 
 professional life. 
 
 Immediately upon my admission to the 
 bar I was associated with Mr. Wood in 
 the management of court cases, and was 
 constantly brought into contact with the 
 leading members of the bar in Worcester 
 County from whom I met with the most 
 courteous and encouraging treatment. 
 
 At the time of my admission to the bar, 
 and for a long time previously, the bar 
 of Worcester County stood very high in 
 learning, legal ability, and in the ethics 
 and courtesy of the profession. At that 
 time the leading lawyers in Worcester 
 were the firms of Bacon and Aldrich, 
 Devens and Hoar, and Dewey and 
 Williams. 
 
 The first named firm was composed of 
 Peter C. Bacon and P. Emory Aldrich. 
 
 87 
 
A LAWYER'S RECOLLECTIONS 
 
 Mr. Bacon was one of the oldest practising 
 lawyers in the county. He was an excel- 
 lent lawyer who gave his whole time to his 
 profession, an untiring student and ex- 
 ceedingly thorough. He seemed to be 
 steeped in legal lore, and Fearne on Con- 
 tingent Remainders and Cruise's Digest 
 were as familiar to him as the multiplica- 
 tion table. His honesty and integrity 
 were beyond question. His manners were 
 genial without a particle of arrogance or 
 conceit. He was not eloquent before 
 juries, but very eflfective on account of 
 the plain, practical way in which he pre- 
 sented his case, and especially because of 
 his entire integrity and the utter absence 
 of any attempt to deceive. He was a great 
 favorite both among the bar and the pub- 
 lic, and his practice was very large. He 
 was exceedingly courteous and kind to 
 younger members of the profession who 
 frequently went to him for advice in cases 
 in which he was not retained, and he was 
 88 
 
COUNTRY PRACTICE OF LAW 
 always glad to give to younger counsel 
 the benefit of his learning and experience. 
 His partner was P. Emory Aldrich, 
 at that time District Attorney and after- 
 wards Judge of the Superior Court. He 
 was also an exceedingly able lawyer and 
 a man of the strictest integrity. He was 
 of a more nervous temperament than Mr. 
 Bacon and occasionally indulged in rather 
 severe remarks, but he had a very kind 
 heart and never intentionally gave offence 
 to anyone. His career as District Attorney 
 was remarkably successful. I cannot recall 
 a case where a guilty person escaped pun- 
 ishment. He had great skill in the prep- 
 aration and introduction of testimony and 
 would weave a net around a guilty de- 
 fendant from which it was impossible to 
 escape. He also seemed to have a remark- 
 able faculty of weighing the evidence and 
 rarely procured an indictment against a 
 person unless there was sufficient evi- 
 dence of his guilt to convict him. 
 89 
 
A LAWYER'S RECOLLECTIONS 
 
 Tlie firm of Dewey and Williams was 
 composed of Francis H. Dewey and Hart- 
 ley Williams. Mr. Dewey was an admir- 
 able jury lawyer, and had great success in 
 the trial of causes. He seemed to under- 
 stand the workings of the mind of the ordi- 
 nary coimtry juror better than any lawyer 
 at that time in practice, and was exceed- 
 ingly astute in availing himself of their 
 prejudices and habits of thought. Upon 
 the whole, I found him the most danger- 
 ous adversary at the bar. While trying a 
 case against him, it was unsafe to allow 
 your attention to be diverted for a moment. 
 While practice in Worcester County at 
 that time was conducted with great court- 
 esy, still it was much more of a contest of 
 wits than it is at present. A lawyer did 
 not consider that he was trying both sides 
 of the case. If he appeared for the plain- 
 tiflf, it was not supposed to be a part of his 
 duty to see that the defendant came to 
 no harm. If an attorney desired to intro- 
 90 
 
COUNTRY PRACTICE OF LAW 
 
 duce testimony which he knew would 
 probably be objected to by the other side, 
 he did not consider it his duty to notify 
 his opponent in advance or be sure that 
 his opponent was giving attention to the 
 case when the objectionable question was 
 asked. While trying a case against Mr. 
 Dewey it was much safer to give your 
 undivided attention to it than to rely 
 upon the fact that if your attention was 
 diverted nothing prejudicial would happen 
 during such diversion. I think he had 
 more shrewdness in the introduction of tes- 
 timony than any other member of the bar. 
 The firm of Devens and Hoar was com- 
 posed of Charles Devens and George F. 
 Hoar. This was a remarkably strong firm. 
 Mr. Hoar, as is well known, was an exceed- 
 ingly able lawyer, and his partner, General 
 Devens, was not only a good lawyer but 
 very eloquent in addressing a jury. I 
 never tried many cases against Judge 
 Devens because he enlisted for the war 
 91 
 
A LAWYER'S RECOLLECTIONS 
 
 soon after I was admitted to the bar, and 
 not long after he returned was appointed 
 upon the bench of the Superior Court, 
 but while I was studying in Mr. Wood's 
 office I frequently heard him in court. 
 His arguments to the jury were very efifec- 
 tive and were a great treat to the members 
 of the bar. 
 
 Mr. Hoar's career is of course well 
 known to everybody. As a lawyer he was 
 exceedingly keen, both in the presentation 
 of evidence and in arguments to the jury 
 and the court. 
 
 Dwight Foster was Attorney General 
 when I was admitted to the bar, and soon 
 after was appointed to the Supreme Ju- 
 dicial Court so that I never had any ex- 
 perience in trying cases with or against 
 him. As is well known, he was an able 
 lawyer and a very courteous gentleman. 
 
 Another prominent lawyer was George 
 F. Verry who had rather a remarkable 
 career. He was originally engaged in 
 
COUNTRY PRACTICE OF LAW 
 
 business and was not a college graduate. 
 He studied law and associated himself 
 with Henry D. Stone who at that time 
 was mainly engaged in criminal practice. 
 After the death of Mr. Stone, Mr. Verry 
 gradually worked out of the criminal busi- 
 ness into a large practice in civil cases. 
 He could not properly be called a great 
 lawyer, but was very successful in jury 
 cases, never losing his temper, calm and 
 serene under all circumstances, a perfect 
 gentleman in his manner, and shrewd and 
 quick to see the points of a case. He 
 achieved great success at the bar. At 
 first, starting under somewhat of a cloud 
 because of the character of the cases of the 
 firm in which he was connected, he entirely 
 outlived this reputation, and before his 
 decease was considered by everybody as 
 a high and honorable gentleman who 
 would not stoop to any tricks or subter- 
 fuges in the trial of a case. He always 
 dressed with great nicety and taste, and 
 93 
 
A LAWYER'S RECOLLECTIONS 
 
 during my early practice in the county 
 was the best dressed gentleman at the 
 bar. I tried several cases against him and 
 never on a single occasion did any unpleas- 
 antness occur. I do not think he had an 
 enemy in the world, and I do not know that 
 he ever offended anybody for a moment. 
 During the last years of his life, he entered 
 into partnership with the late Francis A. 
 Gaskill, a charming man and an excellent 
 lawyer, who was afterwards appointed to 
 the bench of the Superior Court and re- 
 cently died greatly lamented. 
 
 Soon after I was admitted to the bar, 
 the firm of Staples and Goulding was 
 formed, composed of Hamilton B. Staples, 
 afterwards one of the judges of the Su- 
 perior Court, and Frank P. Goulding. 
 Nearly at the same time W. S. B. Hop- 
 kins was admitted as a partner with 
 Peter C. Bacon, and after Mr. Staples 
 was appointed to the bench Messrs. 
 Goulding and Hopkins were the leading 
 94 
 
COUNTRY PRACTICE OF LAW 
 
 lawyers in Worcester, and engaged in most 
 of the important cases. They were ex- 
 cellent lawyers, both in the trial of jury 
 cases and in arguments before the Supreme 
 Court. I think the general opinion was 
 that while they were both of them eminent 
 Mr. Goulding was especially distinguished 
 for his learning and ability in arguing 
 legal questions, and Mr. Hopkins for his 
 skill as a jury lawyer; but they were both 
 lawyers of great ability in all branches of 
 the profession. 
 
 One of the most picturesque characters 
 at the bar was Matthew J. McCafferty. 
 He was a large, portly gentleman of Irish 
 extraction, abounding in Irish wit and 
 humor, of a genial disposition, never losing 
 his temper, and a great favorite in the pro- 
 fession. He was not a profound lawyer, 
 and his practice was mainly confined to 
 criminal cases. It was a treat to hear him 
 address a jury in defence of persons in- 
 dicted for the illegal sale of intoxicating 
 95 
 
A LAWYER'S RECOLLECTIONS 
 
 liquor. He would expend as much elo- 
 quence in defending a client for selling a 
 glass of liquor as if lie were engaged in some 
 prominent State trial. His arguments 
 were always amusing but not always con- 
 vincing. He would perspire profusely 
 during the trial of a case. In fact my 
 general recollection of him is as being in a 
 state of perennial humidity. I think when 
 I was admitted he was the only Irish 
 member of the bar in Worcester County. 
 Dear old McCafferty! Peace to his 
 ashes ! 
 
 At that time arguments to the jury were 
 more ornate than at present. It was 
 especially considered necessary to open 
 and close with some attempt at eloquence. 
 Several stock quotations were almost sure 
 to be used in certain classes of cases. For 
 instance, in a slander case the following 
 familiar quotation from Othello usually 
 appeared in the closing argument of the 
 plaintiflF: 
 
COUNTRY PRACTICE OF LAW 
 
 "Who steals my purse steals trash; 't is something, 
 
 nothing; 
 'T was mine, 't is his, and has been slave to 
 
 thousands; 
 But he that filches from me my good name 
 Robs me of that which not enriches him 
 And makes me poor indeed." 
 
 In family controversies between a parent 
 and a child the following quotation from 
 King Lear was rarely absent: 
 
 "How sharper than a serpent's tooth it is 
 To have a thankless child!" 
 
 I remember on one occasion when the 
 effect on the jury was somewhat marred 
 by a slip of the tongue of the defendant's 
 attorney who quoted the passage in this 
 way, — 
 
 "How sharper than a serpent's thanks it is 
 To have a toothless child!" 
 
 I can recall but two cases during all my 
 practice as a young man when one of my 
 seniors endeavored to snub me and, with- 
 7 97 
 
A LAWYER'S RECOLLECTIONS 
 
 out inordinate vanity, I think it may be 
 said tliat in neither case was the success 
 sufficient to warrant a repetition of the 
 attempt. 
 
 One of these instances occurred, soon 
 after my admission to the bar, in a trial 
 in the Superior Court of an appeal case 
 from a justice of the peace involving the 
 sum of five dollars, the price of a hog, of 
 which the title was in dispute. I appeared 
 for the plaintiff. At the close of the evi- 
 dence, instead of arguing to the jury, my 
 opponent turned to the judge and, with a 
 most supercilious sneer on his face, said 
 that he did not think it was necessary to 
 argue that case, and would submit it 
 without argument. I did not propose to 
 submit my case without argument, as I 
 feared I did not have much of a case to 
 submit as the evidence was decidedly in 
 favor of the defendant. I therefore pro- 
 ceeded to argue and, in opening the case 
 to the jury, said that I desired to apologize 
 98 
 
COUNTRY PRACTICE OF LAW 
 
 for taking their time in arguing the case, 
 inasmuch as my opponent had seemed to 
 consider that there was so httle chance of 
 his obtaining a verdict that he had prac- 
 tically abandoned the case. I stated that 
 if I had had more experience at the bar I 
 should probably have submitted the case 
 without argument but, being young and 
 inexperienced, I did not dare to omit any 
 precaution and, if they would excuse me, 
 I would proceed to argue the case which 
 even my opponent seemed to think was 
 so clear that all resistance was hopeless. 
 To my surprise and satisfaction the jury 
 took this view of the case, and they thought 
 my opponent had declined to argue the 
 case, not because he considered it so strong, 
 but because he thought it was so weak 
 that it was useless to make any further 
 effort to recover a verdict. 
 
 The other instance was during the argu- 
 ment in the Supreme Court of the case 
 of Winchester v. Howard, 97 Mass. 303. 
 99 
 
A LAWYER'S RECOLLECTIONS 
 
 The defendant Howard was at variance 
 with the plaintiff Winchester, and for 
 many years had refused to have dealings 
 with him of any kind or description. Once 
 or twice, however, he had purchased prop- 
 erty, ostensibly of another party, and dis- 
 covered, after the purchase, that it was 
 really the property of Winchester. He 
 was laughed at and derided on this ac- 
 count, and it almost became a monomania 
 with him that he would, under no circum- 
 stances, have any dealings directly or 
 indirectly with Winchester. He had oc- 
 casion to buy a pair of oxen and, in 
 accordance with his invariable custom, 
 he asked the ostensible owner whether 
 Winchester was the owner or had any 
 interest in these cattle. The ostensible 
 owner replied in the negative. Howard 
 bought the cattle and, as he was driving 
 them home, he met a friend of his who 
 said, — "You have been buying Win- 
 chester's cattle; how is this.'*" He there- 
 100 
 
COUNTRY PRACTICE (fe %AW\i 
 
 upon made inquiry and founcN^fttLitb^ 
 were in fact Winchester's cattle, a^^'S^t 
 they had been put into the hands of the 
 ostensible owner for the purpose of selling 
 them to Howard. The next day he re- 
 turned the cattle which the seller refused 
 to receive. Winchester brought an action 
 against Howar4 for the price of the cattle. 
 The only defence was that, at the time of 
 the alleged purchase, the cattle were 
 represented as not being the property of 
 Winchester, and that this representation 
 was false, and for that reason the defendant 
 had a right to return them. 
 
 Howard was a client of ours and immedi- 
 ately consulted us in regard to the matter. 
 My partner, Mr. Wood, was rather of the 
 opinion that the representation as to the 
 ownership of the cattle was immaterial as 
 the quality of the cattle was as represented 
 and that the sale was therefore valid. 
 Howard was eager for a fight, and said if 
 there was the slightest chance he wanted 
 101 
 
A LAWYER'S RECOLLECTIONS 
 
 to defend the action. It seemed to me, 
 and I so expressed my opinion, that there 
 was no law in the Commonwealth of Mass- 
 achusetts that compelled a man, against 
 his will, to deal with another. Conse- 
 quently we defended the action. 
 
 The judge in the Superior Court ruled 
 against us on the ground that the repre- 
 sentation of ownership was immaterial 
 and we appealed to the Supreme Court. 
 
 As the excepting party, I had the open- 
 ing and close of the argument. After I 
 had finished the opening, the counsel on 
 the other side, who was one of the leaders 
 of the bar, instead of arguing his case, 
 simply made a short statement as follows: 
 
 "I desire, by a simple illustration, to 
 show the futility of this defence. There is 
 a well-known hatter in the City of Worces- 
 ter named Kettell. Suppose I had bought 
 my hats there for a number of years and, 
 on going to my office to-morrow morning, 
 I should step into the store and I should 
 102 
 
COUNTRY PRACTICE OF LAW 
 
 say, — 'Is Mr. Kettell still running this 
 store?' The person in attendance says, 
 'Yes,' and I consequently buy a hat. I 
 wear it home, and immediately upon my 
 arrival at home I ascertain that Mr. 
 Kettell sold out the night before. Have I 
 a right to return that hat on account of 
 breach of warranty or representation.? 
 If I have, I admit that the defendant is 
 entitled to judgment." 
 
 The counsel then resumed his seat. I 
 had the right to close. I stated to the 
 court that I was very glad that the gentle- 
 man had given an illustration which he 
 admitted to be upon all fours with the 
 case at bar, inasmuch as a case cited in my 
 brief decided that identical point in my 
 favor. The case was precisely the same 
 as that suggested by my opponent and was 
 decided upon the ground that no one can 
 be made to buy of another without his 
 own assent, and that every man has the 
 right to determine with whom he shall 
 103 
 
A LAWYER'S RECOLLECTIONS 
 
 enter into business relations. The ver- 
 dict was set aside and tlie defendant 
 obtained judgment. 
 
 As I have said, these were the only 
 instances that I can recall where, when I 
 was young at the bar, I was snubbed by 
 an older lawyer. 
 
 As soon as I was admitted to the bar, 
 I assisted my partner in the trial of cases 
 in the Superior Court. 
 
 During the first year of our partnership, 
 the cases of Smith v. Wood, et al., were 
 reached for trial in the Superior Court. 
 The plaintiff was Henry Smith, then a 
 manufacturer in the town of Templeton 
 in Worcester County, afterwards President 
 of the Home Savings Bank of Boston. He 
 was quite an able man, very shrewd in 
 business, and with a blunt, offhand manner 
 which rendered him quite popular in the 
 community. He was at that time a man 
 of considerable means. As he began work 
 when quite young, his early education was 
 104 
 
COUNTRY PRACTICE OF LAW 
 
 somewhat neglected. He once presided 
 at a political convention in Fitchburg. 
 It was the custom to open political con- 
 ventions with prayer. Mr. Smith called 
 the convention to order and inquired if 
 there was a clergyman present. There 
 was no response. Mr. Smith then said, 
 — " Inasmuch as there is no clergyman 
 present, the Divine blessing will be dis- 
 pensed with, and the convention will 
 proceed to business." 
 
 The suits I refer to were two actions 
 brought on promissory notes against the 
 firm of M. H. Wood and Company, and 
 several thousand dollars were involved in 
 the suits. Inasmuch as during the time 
 when the plaintiff furnished merchandise 
 to the firm and these notes were given 
 there was a change in the firm by the ad- 
 mission of a new partner, two actions were 
 brought, one against the old firm and one 
 against the new. The isues pending in the 
 two cases were precisely the same, but it 
 105 
 
A LAWYER'S RECOLLECTIONS 
 
 was not then tlie custom to order cases of 
 this nature tried together where the parties 
 were not identical, consequently there 
 were two trials. The trials lasted several 
 days; the facts were quite complicated and 
 the evidence conflicting. 
 
 In the first case the jury rendered a 
 verdict in favor of the defendant. Soon 
 after the verdict was rendered, Mr. Smith 
 came into the oflSce, jovial and debonair 
 as ever, and said, — "Well, Mr. Wood, 
 we got licked." Mr. Wood then said, — 
 "What do you propose to do about the 
 other case which will be in order for trial 
 on Monday morning? The facts are pre- 
 cisely the same, and I doubt if there is 
 much chance of a verdict." Mr. Smith 
 replied, without a moment's hesitation, 
 — "Mr. Wood, I'll tell you what to do, 
 let George try the next case alone; he 
 can't come out any worse than you did, 
 and he may come out somewhat better." 
 To my surprise my partner consented 
 106 
 
COUNTRY PRACTICE OF LAW 
 
 without tlie slightest hesitation or any 
 feehng of dissatisfaction. I supposed, at 
 the time, Mr. Smith made the suggestion 
 in jest, but I found he was in earnest. He 
 did not make this proposition because he 
 had any fault to find with the manner in 
 which the case had been conducted. Mr. 
 Wood was a very able trial lawyer, and 
 tried the case with his usual skill, but it 
 occurred to Mr. Smith that possibly put- 
 ting a young and green attorney into the 
 case might excite the sympathy of the jury 
 and possibly result in a verdict for the 
 plaintiff. 
 
 I don't think I ever was in such trepida- 
 tion in my life as I was when this sugges- 
 tion was made. Up to this time I had 
 taken no part in trials except to examine 
 some unimportant witness, Mr. Wood 
 conducting all cross-examinations and 
 opening and closing to the jury. 
 
 After church on Sunday, Mr. Wood 
 went over the case with me in the office, 
 107 
 
A LAWYER'S RECOLLECTIONS 
 
 giving me all tlie suggestions which he 
 could think of. Monday morning the 
 second case was called in court. The 
 counsel for the defendant was Peter C. 
 Bacon of Worcester, at that time one of 
 the oldest practising lawyers in the county 
 and the leader of the Worcester bar. 
 When the case was called, Mr. Bacon turned 
 to me and asked where Mr. Wood was. I 
 told him he was not coming and that I 
 was to try the case alone. Mr. Bacon's 
 reply was, — "I am licked as sure as a 
 gun. The jury will be sure to decide in 
 your favor on account of its being your 
 first case." 
 
 The evidence was precisely the same as 
 it had been in the previous trial. 
 
 When it came my turn to open for 
 the plaintiff, I stated to the jury that the 
 evidence was precisely the same as in the 
 case tried last week, and that if the jury 
 proposed to follow the lead of the other 
 jury it was of course useless for me to 
 108 
 
COUNTRY PRACTICE OF LAW 
 
 introduce any evidence, but if, on the 
 other hand, they were men of independent 
 judgments, had opinions of their own, and 
 were not to be influenced by what some- 
 body else had thought or somebody else 
 had done, I should proceed to try the case 
 with considerable confidence in the result, 
 inasmuch as in my judgment the other 
 verdict was wrong. The jury straightened 
 up in their seats, and each man on the 
 panel evidently was impressed with the 
 opinion that he proposed to use his own 
 judgment, and not be led by the nose by 
 some one else. 
 
 The trial resulted in a verdict for the 
 plaintiff, not, I presume, on account of any 
 skill in the conduct of the case, but through 
 the desire of the jury to show that they 
 were men of independent judgment who 
 were able to weigh the evidence without 
 any regard as to the manner in which it 
 had been weighed by some one else. 
 
 The conduct of Mr. Bacon during this 
 109 
 
A LAWYER'S RECOLLECTIONS 
 
 trial was delightful. There was no snub- 
 bing or assumption of superior skill or 
 learning, but I was treated with as much 
 courtesy as if I had been one of the leaders 
 of the bar. During the trial he gave me 
 much good advice. Among other things 
 he told me never to ask for senior counsel 
 but to try alone all cases that were brought 
 to me, unless the client desired to retain 
 an older man to assist me. He said if I 
 intimated to my clients that I was not 
 competent to try any case they would 
 undoubtedly think that my opinion was 
 correct, and the next time would employ 
 somebody that was competent. I fol- 
 lowed this suggestion during my whole 
 professional life and never in any case 
 asked for senior counsel, although I was 
 pleased to have them retained if my client 
 desired it. 
 
 Mr. Wood's conduct was equally de- 
 lightful, and instead of feeling chagrined 
 because I obtained a verdict where he had 
 110 
 
COUNTRY PRACTICE OF LAW 
 
 failed, he was pleased at the result. At 
 the close of that term of court, he told me 
 that thereafter I must try all cases in the 
 Superior Court alone; that he thought I 
 was competent to do it, and he had arrived 
 at a time of life when it was agreeable to 
 begin to rest from his labors. From this 
 date, I tried all jury cases alone, and after 
 a year or two Mr. Wood retired entirely 
 from court practice, although he retained 
 his interest in the firm and was constantly 
 in attendance at the office and assisted in 
 the preparation of cases. This arrange- 
 ment gave me an exceedingly large practice 
 for so young a lawyer, and was a great 
 benefit to me then and in after life. 
 
 Among my associates at the bar in 
 Fitchburg was a unique character who was 
 at times exceedingly funny, although I 
 doubt if he was fully aware that he pos- 
 sessed this quality. The funniest men in 
 the world are those that are funny and do 
 not know it. He was a zealous church 
 111 
 
A LAWYER'S RECOLLECTIONS 
 
 member. Soon after the war it was the 
 custom to make contributions of clothing 
 for the use of the refugees, as they were 
 called, in Kansas and other Western States. 
 They were negroes who had escaped from 
 the South and taken up their residence in 
 the Northern States. They were poor and 
 needed help. Accordingly the church with 
 which my friend was connected made a 
 contribution of discarded clothing to be 
 sent to these refugees in Kansas. A large 
 packing case was filled, and it was ready 
 for delivery to the express company on 
 Monday morning. At the service during 
 the preceding Sunday, the clergyman, in 
 his prayer, referred at great length to the 
 refugees, and especially to the contribu- 
 tion for their relief which had been made 
 by the congregation. He prayed that this 
 box might escape all perils by sea and land 
 in the course of the journey and finally 
 be safely delivered to the recipients. He 
 requested the Lord to watch over it and 
 112 
 
COUNTRY PRACTICE OF LAW 
 to take special pains in order to insure the 
 safe delivery of the goods. At the close 
 of the prayer my friend remarked, in a 
 tone which was supposed to be a whisper 
 but was audible over a long distance, — 
 "It seems to me a pity to trouble the Lord 
 with such a trifling matter for the box 
 could have been insured for fifty cents." 
 I doubt if he ever appreciated how ex- 
 quisitely funny this suggestion was, for I 
 think he made it in good faith thinking 
 that as a business matter the Lord should 
 not be troubled with a fifty cent risk. 
 
 I was once associated with the same 
 lawyer as senior counsel in a suit brought 
 by a nurse to recover for services rendered 
 during several months to a patient who 
 died of cancer. During my instructions 
 from my associate, he impressed upon me, 
 with considerable iteration, that it was a 
 rose cancer which I inferred from his anx- 
 iety to impress this matter upon my mind 
 to be a cancer of an unusually serious 
 8 113 
 
A LAWYER'S RECOLLECTIONS 
 
 nature. While I was arguing the case to 
 the jury in closing for the plaintiflf and was 
 in the midst of a peroration, I felt my 
 coat tail clutched in a most violent man- 
 ner. I looked around and my associate 
 was standing behind me and whispered in 
 a voice that could be heard all over 
 the court room, — " Be sure and remind 
 the jury that this was a rose cancer." The 
 jury got the benejBt of this suggestion from 
 overhearing the remark of my associate, 
 but I fear the oratorical beauties of my 
 peroration were somewhat impaired. 
 
 I think there is no better legal training 
 for a young man than was furnished at 
 that time by becoming a student in an 
 office of a leading attorney in a country 
 town. There were no specialists in those 
 days in the legal fraternity. A country 
 practice included every branch of the law, 
 both civil and criminal. A lawyer, in 
 order to achieve success, was compelled 
 to be efficient in real estate and commercial 
 114 
 
COUNTRY PRACTICE OF LAW 
 
 law, probate and divorce proceedings, 
 equity and common law, and, in short, 
 in every branch of jurisprudence. There 
 was then much more litigation upon trivial 
 matters than at present. Legal fees were 
 much less, and there were many persons 
 in a community, generally of considerable 
 means, who rather enjoyed a legal contest 
 although the amount involved was not 
 equal to the expense incurred. 
 
 I have been engaged in many actions of 
 trespass to try the title to real estate 
 where the only dispute was in regard to the 
 boundary between two fields in the country 
 of little value, and sometimes the strip 
 of land which was in controversy was not 
 worth one-tenth of the cost of the legal 
 proceedings. 
 
 The case of Putnam v. Bond, 100 Mass. 
 58, and 102 Mass. 370, was tried two or 
 three times in the Superior Court and 
 argued twice before the full bench of the 
 Supreme Court in order to fix the true 
 115 
 
A LAWYER'S RECOLLECTIONS 
 
 line between the land of the respective 
 parties, while the whole value of the land 
 in dispute was exhausted in the legal 
 proceedings of half a day. 
 
 The case of Proctor v. Putnam Machine 
 Company, 137 Mass. 159, was a long and 
 expensive contest to determine the ques- 
 tion whether a bank wall in the City of 
 Fitchburg did or did not encroach seven 
 inches upon the plaintiff's land. The 
 plaintiff was a man of moderate means, 
 but he considered that he had been wronged 
 by the defendant corporation and was will- 
 ing to spend a great amount of time and 
 a large sum of money in order to main- 
 tain his rights. 
 
 In both of these cases, in which I ap- 
 peared for the plaintiff, we were success- 
 ful, and in neither case did the plaintiff 
 regret the expenditure of money which 
 was necessary in order to maintain his 
 rights which were of very small pecuniary 
 
 value. 
 
 116 
 
COUNTRY PRACTICE OF LAW 
 In those days, any justice of the peace 
 could try a civil case, and certain justices 
 of the peace were commissioned to try 
 criminal cases. Frequently these justices 
 were not lawyers and the proceedings 
 before them in some cases were rather 
 amusing. 
 
 I recall a case tried before Mr. Justice 
 Bradbury of Westminster, who kept the 
 country store of that town. The defend- 
 ants were two or three boys belonging to 
 respectable families in Westminster who, 
 from mere wanton mischief, had taken a 
 wooden pump out of a well. They did 
 not carry it off, but left it on the prem- 
 ises; their only design being to annoy the 
 owner. He entered a complaint before 
 Mr. Bradbury and the boys were arrested 
 for malicious injury to real estate. Their 
 parents retained our firm to defend them. 
 I told them that I thought there was no 
 defence to the action, but we would see 
 what could be done. Accordingly I ap- 
 117 
 
A LAWYER'S RECOLLECTIONS 
 
 peared before the Justice and tlie evi- 
 dence was conclusive that the boys had 
 drawn the pump out of the well and left 
 it lying on the ground near by. I took the 
 point before the Justice that this was not 
 malicious injury to real estate, inasmuch 
 as the land was not injured or affected in 
 any way, that the pump itself was per- 
 sonal property and therefore that the 
 complaint should have been for malicious 
 injury to personal property. 
 
 The trial was held, as was usual, in Mr. 
 Bradbury's store, a table being set be- 
 tween the counters, and the Justice fre- 
 quently being interrupted for the purpose 
 of weighing out tea and sugar during the 
 trial. Lying on the floor of the shop were 
 two or three cucumber wood pumps ex- 
 actly like the one the boys had taken out 
 of the well. In order to convince the 
 Magistrate that these pumps were per- 
 sonal property, I asked him if it was 
 necessary, when he sold one of these 
 118 
 
COUNTRY PRACTICE OP LAW 
 
 wooden pumps to a customer, to convey 
 it by a deed of sale. If it was not necessary 
 to so convey this property, it could not be 
 real estate. If, on the other hand, these 
 pumps were real estate, all of the sales 
 which he had made were void and the 
 dealers could return the articles on the 
 ground that there had been no legal con- 
 veyance of the same. This argument 
 struck the Justice with great force, and 
 he decided that the boys should be dis- 
 charged on account of the defect in the 
 form of the complaint as it should have 
 been for malicious injury to personal 
 property. But the astute Justice did not 
 propose to allow these criminals to escape 
 on technicalities. As soon as he rendered 
 his decision, he immediately drew another 
 complaint against the boys for malicious 
 injury to personal property and they were 
 rearrested upon the spot and we proceeded 
 at once to trial. Upon this trial I cited 
 authorities, which were of course numer- 
 119 
 
A LAWYER'S RECOLLECTIONS 
 
 ous and uniform, to the effect that a pump 
 in a well which was in use was a part of 
 the real estate and was not personal prop- 
 erty. The Justice could not deny the 
 validity of these decisions and consequently 
 was obliged to discharge the boys upon 
 this complaint also, and the young cul- 
 prits escaped punishment. The Magis- 
 trate enjoyed the joke upon himself as 
 much as the rest of us. In fact many of 
 these legal trials at the time were looked 
 upon as huge jokes and the loser was 
 usually good natured. 
 
 Another case which I recall in my 
 earliest experience was a retainer by a 
 client against whom an action had been 
 brought for five dollars, the price of certain 
 nursery stock which he had purchased of 
 a travelling salesman. It turned out to 
 be poor stuff and he did not propose to pay 
 for it unless he was obliged to. He gave 
 me the facts of the case and I told him he 
 had no defence whatever to the suit and 
 120 
 
COUNTRY PRACTICE OF LAW 
 
 he had better settle it. He insisted, how- 
 ever, upon a trial and said that something 
 might turn up in the course of the pro- 
 ceedings by which he could get clear. I 
 told him I should charge him twenty-five 
 dollars for trying this case in Gardner, 
 whiqh was twelve miles from my office in 
 Fitchburg. He paid the money on the 
 spot without any hesitation whatever 
 and, at the appointed time, we attended 
 the trial. 
 
 The plaintiff introduced a written con- 
 tract for the articles in question. At that 
 time there was a United States stamp tax 
 which required all contracts to have an 
 adhesive stamp, and there was a further 
 provision that no contract should be in- 
 troduced to the Court as evidence without 
 such stamp. I was well aware that this 
 provision applied only to United States 
 courts and not to courts in the Common- 
 wealth of Massachusetts. Fortunately, 
 however, for my client, the Magistrate, 
 121 
 
A LAWYER'S RECOLLECTIONS 
 
 who was not a lawyer, was not aware 
 that the provision was thus restricted in 
 its application. Consequently when I 
 referred him to the law of the United 
 States in regard to these stamps, which 
 provided that no unstamped instrument 
 should be received as evidence in a suit 
 at law, he seemed to think that was suffi- 
 cient to exclude the written contract and 
 it was consequently excluded, therefore 
 the defendant prevailed. 
 
 These proceedings would be called rather 
 sharp practice in these days, but they were 
 very common at that time and, as I have 
 already said, the whole contest was looked 
 upon as a contest of wits, and if a person 
 prevailed on account of knowing more 
 than the other party, it was not considered 
 at all derogatory to his character that he 
 should use that knowledge in any way 
 that was best suited to the interest of his 
 client. 
 
 Cases were frequent relating to the sale 
 122 
 
COUNTRY PRACTICE OP LAW 
 
 of horses and cattle where the defence was 
 a breach of warranty, and it was as neces- 
 sary in those days for a country lawyer, 
 in order to be a successful practitioner, to 
 be familiar with horse lore as with Black- 
 stone's Commentaries. 
 
 During my boyhood, all jury cases in 
 Worcester County were tried in the City 
 of Worcester. As there were then no rail- 
 roads connecting the various towns with 
 that city and no telegraphs, it was neces- 
 sary for the country lawyers having ex- 
 tensive practice to spend most of the long 
 winter term at the Shire Town, conse- 
 quently there was much more good fellow- 
 ship and fun among the members of the 
 bar than at present. My partner, Mr. 
 Wood, told me several good stories which 
 were related around the fire at the old 
 Wait Tavern, opposite the Court House 
 in Worcester, as the lawyers were smoking 
 their cigars in the evening. The deputy 
 sheriffs, also, who were attending Court 
 123 
 
A LAWYER'S RECOLLECTIONS 
 
 stopped at this Tavern, and there were 
 frequent contests of wit between the 
 lawyers and the sheriffs. 
 
 On one occasion, there having been 
 quite a contest between them, one of the 
 sheriffs remarked that it was a consolation 
 to think that there would be no lawyers 
 in heaven to disturb the peace of the 
 community. In reply to this one of the 
 attorneys remarked that it was evident 
 that there was at least one lawyer in heaven. 
 He referred to Mr. Burnside, a prominent 
 lawyer in Worcester but recently de- 
 ceased. He was an able man and quite 
 shrewd in trial of causes, being sure to 
 take every point that could possibly be 
 taken in behalf of his client. The attorney 
 said that it was well known that at the 
 death of Mr. Burnside his spirit appeared 
 in heaven and knocked at the gate for 
 admittance. Saint Peter approached the 
 portal, partly opened the great gates, and 
 asked him who he was and what he wanted. 
 124 
 
COUNTRY PRACTICE OF LAW 
 
 Burnside replied that lie was lawyer Burn- 
 side of Worcester and desired admittance 
 to the heavenly precincts. Saint Peter 
 told him that no lawyers were admitted 
 as their conduct on earth had not been 
 sufficiently peaceful and righteous to en- 
 title them to immediate admission to the 
 heavenly realms. Mr. Burnside told Saint 
 Peter that he would like to argue that point 
 with him, and immediately began to pro- 
 duce some reasons why he thought he 
 ought to be admitted. The discussion 
 became quite warm between Saint Peter 
 and Mr. Burnside and, during the talk, 
 Burnside slipped by Saint Peter and got 
 inside. Saint Peter ordered him out and 
 Burnside said he had no right to remove 
 him except 'by writ of ejectment. Saint 
 Peter at once sued out a writ and heaven 
 was searched high and dry to find a deputy 
 sheriff for the purpose of serving it, but 
 as none could be found lawyer Burnside 
 remained within the heavenly portals. 
 125 
 
A LAWYER'S RECOLLECTIONS 
 
 Judge Emory Washburn, afterwards 
 Governor of the Commonwealth, at one 
 time tried more cases than any other 
 lawyer in the county, and his name ap- 
 peared more frequently in the Supreme 
 Court Reports than that of any other 
 counsel. For instance, at the session of 
 the Supreme Judicial Court for the County 
 of Worcester in 1843, the year before he 
 was appointed one of the Justices of the 
 Common Pleas Court, he argued sixteen 
 cases out of eighteen which were argued 
 at that term. He was an excellent lawyer, 
 an exceedingly fair minded and courteous 
 man, and a great favorite among the mem- 
 bers of the bar and the general public. 
 He was at one time trying a jury case 
 against a prominent lawyer of Worcester 
 who was a man of great personal magnet- 
 ism, and with a high opinion of his own 
 learning, which opinion was confined en- 
 tirely to himself. During his closing argu- 
 ment to the jury he enunciated some most 
 126 
 
COUNTRY PRACTICE OF LAW 
 
 astonishing propositions of law, many of 
 which had never been heard of until they 
 were pronounced by him on this occasion. 
 Mr. Washburn said to him, — "Brother 
 
 , where do you find authority for these 
 
 propositions.!^" Mr. turned upon him 
 
 with a most withering look and shouted 
 so that he could be heard all over the 
 court room, — "In Blackstone's Commen- 
 taries and forty other books." This ap- 
 peared to be very effectual to the jury, who 
 undoubtedly thought that the learning of 
 his opponent had greatly overshadowed 
 the attainments of the modest appearing 
 Washburn. 
 
 One of the most important cases that I 
 ever tried was the case of Ford v. Fitch- 
 burg Railroad Company, 110 Mass. 240. 
 This is one of the leading accident cases 
 in Massachusetts. I appeared for the 
 plaintiff. He was a locomotive engineer, 
 and the action was brought to recover 
 damages on account of injuries received 
 127 
 
A LAWYER'S RECOLLECTIONS 
 
 from a defective locomotive by an ex- 
 plosion of the boiler. The plaintiff was 
 thrown a long distance and received seri- 
 ous injuries from which he eventually en- 
 tirely recovered. As he was lying on the 
 ground, unconscious, the conductor of the 
 train procured a mattress from a manu- 
 facturing establishment near the place of 
 the accident, upon which my client was 
 carried to his home. After the suit was 
 brought, the Superintendent of the Fitch- 
 burg Railroad Company sent a bill to my 
 client for ten dollars for this mattress. My 
 client was indignant at this proceeding, 
 but I advised him to pay the bill at once 
 and told him that it was undoubtedly the 
 best investment that he had ever made 
 or ever would make in his life. It goes 
 without saying that this transaction was 
 ventilated in the presence of the jury, and 
 that the plaintiff's counsel took special 
 pains that at no time during their delibera- 
 tions should the jury forget this episode. 
 128 
 
COUNTRY PRACTICE OF LAW 
 
 The case was tried three times in the 
 Superior Court, each trial lasting about 
 a week and resulting in verdicts for the 
 plaintiff. The first two verdicts were set 
 aside by the presiding judge. I never 
 knew whether they were set aside on the 
 ground that they were against the evi- 
 dence or on the ground of excessive dam- 
 ages. The third verdict was for the sum 
 of eighty-five hundred dollars which, at 
 that time, was considered to be a large 
 verdict. The presiding judge refused to 
 set the verdict aside, and the Supreme 
 Court sustained his decision. 
 
 At the third trial my brother-in-law and 
 the brother of the General Superintendent 
 of the Fitchburg Railroad Company were 
 both drawn upon the jury. This was not 
 known to the counsel on the other side. 
 Of course I did not propose to try a case 
 before my brother-in-law without the 
 knowledge of the other party. I there- 
 fore stated to the defendant's counsel the 
 9 129 
 
A LAWYER'S RECOLLECTIONS 
 
 fact that my brother-in-law and the brother 
 of the defendant's Superintendent were 
 both on the jury and that I would give 
 them the choice to try the case before 
 both of them, or if they challenged my 
 brother-in-law I would challenge the 
 brother of the Superintendent. After 
 consulting with their clients they decided 
 to allow both of these jurors to remain on 
 the panel. 
 
 I ascertained, after the trial was over, 
 that the amount of the verdict was de- 
 termined by adding together the figures of 
 each juror and dividing the gross sum by 
 twelve. I further ascertained that the 
 Superintendent's brother figured higher 
 than any man on the panel on the question 
 of damages and that my brother-in-law was 
 among the lowest. It turned out, there- 
 fore, that my agreement with the other 
 side was quite advantageous. 
 
 At the trial the defendant called as 
 
 witnesses the entire Board of Directors of 
 130 
 
COUNTRY PRACTICE OF LAW 
 
 the Fitchburg Railroad Company. They 
 testified that they intended to purchase 
 good locomotives and to keep them in 
 proper repair and that, so far as they were 
 aware, their efforts were successful, and 
 that they had no knowledge or suspicion 
 that the locomotive in which the boiler 
 exploded was out of repair or dangerous 
 at the time of the accident. 
 
 One of these Directors was a wealthy 
 man who had made the beginning of his 
 fortune by keeping a saloon. He had 
 long since retired from business, and was 
 an exceedingly respectable and courteous 
 gentleman. In my cross-examination I 
 commenced by asking him what his oc- 
 cupation was. With the most extreme 
 courtesy, and with a smile that covered his 
 whole face, he said he was a gentleman. 
 
 Lest this answer may seem somewhat 
 
 surprising, I will state that it was the 
 
 custom, when I went into practice, in 
 
 drawing deeds or making writs to designate 
 
 131 
 
A LAWYER'S RECOLLECTIONS 
 
 the parties by a title that represented 
 their occupation. A farmer was "a yeo- 
 man." A justice of the peace was desig- 
 nated as "an esquire." A person who had 
 retired from business and had no occupa- 
 tion, who was not a justice of the peace or 
 a professional man, was then designated 
 in these legal documents as "gentleman." 
 This was undoubtedly the idea that this 
 witness had when he answered the ques- 
 tion in that way. 
 
 I immediately saw that the Lord had 
 delivered him into my hands by this 
 answer. My next question was, — "How 
 long have you been a gentleman.'' " 
 He answered, — "About twenty years." 
 'What were you before you became a 
 gentleman?" He said that he kept a 
 saloon in Boston. I asked him if he sold 
 intoxicating liquor to be drank on the 
 premises while conducting his saloon and 
 he replied that he did. It will be remem- 
 bered that he had testified with the other 
 132 
 
COUNTRY PRACTICE OF LAW 
 
 Directors that, so far as he was aware, 
 this locomotive was in perfect condition. 
 I then asked him if, during his business 
 career, he had had any experience in me- 
 chanics except in the manufacture of 
 mixed drinks? This question he answered 
 in the negative. 
 
 Notwithstanding this passage at arms, 
 we became very good friends after that 
 and remained so during his life. 
 
 When this case was finally decided in 
 1873, one of the Directors of the Fitch- 
 burg Railroad Company who resided in 
 Fitchburg stated that the Company de- 
 sired to make some arrangement with me 
 so that I should not be engaged in any 
 further litigation against the Company. 
 I told him that nothing was easier, and 
 from that time I was retained by the Fitch- 
 burg Railroad Company and, of course, 
 never tried another case against it. 
 
 Among my early cases was that of one 
 Manley v. Town of Ashhy to recover 
 133 
 
A LAWYER'S RECOLLECTIONS 
 
 damages for injuries received while driving 
 on the highway. Ashby is a small town 
 adjoining Fitchburg. The defence of the 
 case was very vigorously conducted, the 
 town summoning thirty or forty witnesses. 
 Among other defences it was claimed 
 that the plaintiff's horse was misafe. I 
 had frequently seen the animal and was 
 confident that, whatever other faults he 
 might have had, he was not at all danger- 
 ous. He was very aged and in contour and 
 general appearance resembled Don Quix- 
 ote's Rozinante, as depicted by Dore. I 
 was quite anxious that the jury should see 
 him but I knew that the Judge would not 
 allow a view taken of the horse. The 
 trial lasted several days. One day during 
 the trial, on returning after lunch, to my 
 delight I found that my client's horse was 
 tied to a post in front of the Court House, 
 the plaintiff standing by him. Whether 
 I suggested this arrangement or not I do 
 not remember so I can neither admit nor 
 134 
 
COUNTRY PRACTICE OP LAW 
 
 deny it, but I was delighted to find him 
 there and stopped and talked with my 
 client near the team. The jury were re- 
 turning from lunch and passed us. I 
 observed they paid considerable attention 
 to the animal and looked him over with 
 some curiosity and their faces were 
 wreathed in smiles. They had heard 
 during the forenoon something of the 
 dangerous qualities of this animal and 
 were evidently surprised when they saw 
 him. One of them asked me whether that 
 was the horse referred to, to which I gave 
 the only reply possible under the circum- 
 stances that I was not allowed to answer 
 any questions of that character. The 
 jury drew their own inferences and had no 
 difficulty in finding for the plaintiflF. 
 
 The earliest criminal case that I recol- 
 lect was the defence of a very respectable 
 looking young man who was arrested for 
 stealing a gun and buffalo robe. As the 
 evidence was insufficient to hold him, he 
 135 
 
A LAWYER'S RECOLLECTIONS 
 
 was discliarged. I defended him with all 
 the vigor I possessed, and had implicit 
 confidence in his statement that he was 
 innocent. After the trial he said he was 
 very sorry that he had no money to pay 
 me for my services, but was willing to give 
 me the robe and gun if I would take them 
 for my fee. As the title to this property 
 was somewhat precarious, I was obliged 
 to refuse, and my account still stands 
 against him for my services on that 
 occasion. 
 
 Our firm was retained as town counsel 
 for the town of Fitchburg for many years. 
 As such counsel it was my duty to prose- 
 cute complaints for illegal sales under the 
 liquor law. The proprietor of the Fitch- 
 burg Hotel was at one time complained of 
 and arrested for illegal sales of liquor. 
 These sales took place in a room on the 
 first floor of the hotel, numbered fourteen. 
 Sales were made there constantly, and it 
 
 was well known to everybody who fre- 
 136 
 
COUNTRY PRACTICE OF LAW 
 
 quented tlie house that such was the case. 
 The town each year chose an agent to 
 prosecute Hquor cases. He instituted a 
 complaint against the proprietor of the 
 Fitchburg Hotel and summoned a large 
 number of witnesses who were in the habit 
 of frequenting this room and purchasing 
 liquor therein. Some of these witnesses 
 were the principal retail merchants of the 
 town, men of good standing and entire 
 respectability. As attorney for the Com- 
 monwealth, it was my duty to examine 
 them as witnesses before the presiding 
 magistrate. Without exception, each one 
 of these witnesses denied ever having 
 purchased liquor in the Fitchburg Hotel. 
 They denied that they knew anything 
 about room number fourteen or was ever 
 in it. I do not remember exactly how 
 many witnesses testified, but there was 
 certainly over a dozen and each one denied 
 all knowledge of or participation in the 
 violation of the liquor law. Some of these 
 137 
 
A LAWYER'S RECOLLECTIONS 
 
 gentlemen I had myself seen in that room 
 more than once while liquor was being 
 sold. There being no evidence against the 
 defendant, he was discharged. During 
 the trial I was reminded of the assertion of 
 Uncle Toby, — " Our armies swore ter- 
 ribly in Flanders, but nothing to this." 
 
 An amusing occurrence has recently 
 been called to my attention. Several 
 years ago I was defending an action 
 brought to recover damages for personal 
 injuries. The plaintifif claimed that on 
 account of an injury to his shoulder he 
 was unable to raise his arm and hand 
 above his waist. He illustrated to the 
 jury how high he was able to raise them. 
 On cross-examination I of course made no 
 imputation that he was not telling the 
 strict truth, but I asked him if he was sure 
 that his present infirmity resulted from 
 the injury received on the railroad. He 
 said that he was. I then asked him if 
 
 it was not a fact that before the railroad 
 138 
 
COUNTRY PRACTICE OF LAW 
 
 accident lie had this same inability to 
 raise his hand and arm. He repudiated 
 this supposition with great vigor. I said 
 to him, — "Up to the time of this injury, 
 could you raise your hand and arm as 
 well as you ever could?" He said that he 
 could. I said, — "Won't you please illus- 
 trate to the jury how high you could 
 raise this arm before the injury." He put 
 it up at once in a perpendicular attitude like 
 the Statue of Liberty enlightening the 
 world. It is hardly necessary to state 
 that he failed to recover damages for that 
 injury. 
 
 While I resided in Fitchburg I served for 
 two years on the School Committee. It 
 was, at that time, composed of five per- 
 sons, all professional men, — one clergy- 
 man, two doctors, and two lawyers. The 
 clergyman was the Rev. Mr. Jones of the 
 Episcopal church, a most charming gentle- 
 man, highly cultivated and exceedingly 
 
 popular. I remember on one occasion the 
 139 
 
A LAWYER'S RECOLLECTIONS 
 
 subject of discussion was the question of 
 raising tlie salary of certain female teach- 
 ers. Some of us were in favor of raising 
 the salary of all the teachers and others of 
 raising the salary of those only who had 
 been long in the service. The members 
 of the Committee expressed their opinions 
 seriatim, Mr. Jones, being the youngest 
 member, closing the discussion. He began 
 in this way, — "As for me, I should like 
 to embrace all the female teachers." The 
 reverend gentleman was somewhat sur- 
 prised at the exhibition of horror expressed 
 at such an improper and unclerical remark. 
 Mr. Jones and I were attending the 
 closing exercises of one of the primary 
 schools. It was the custom for each mem- 
 ber of the Committee to deliver an address 
 to the scholars at the close of the examina- 
 tion. On the way to the school, I stated 
 to Mr. Jones that I was always embar- 
 rassed in talking to very young children as, 
 
 having no children of my own, I had no 
 140 
 
COUNTRY PRACTICE OF LAW 
 
 experience in interesting them by my re- 
 marks. He said he labored under the 
 same difficulty, but his great resource was 
 to relate to them the story of "Bruce and 
 the Spider." Being the senior member 
 of the Committee I preceded Mr. Jones in 
 the closing exercises and, to his disgust, I 
 related to them the story of "Bruce and 
 the Spider," leaving him without any 
 ammunition when he came upon the 
 firing line. 
 
 141 
 
CHAPTER IV 
 
 THE SUPERIOR COURT 
 
 In 1873 I removed to Boston and in 1887 
 was chosen General Counsel of the Fitch- 
 burg Railroad Company and thereafter, 
 until the road was leased to the Boston 
 and Maine in 1900, I had entire charge 
 of the legal business of the corporation, 
 trying nearly all of the cases in person. 
 This called me into every county in the 
 Commonwealth, and I have tried cases 
 in all the counties excepting Barnstable, 
 Nantucket and Plymouth. I thus became 
 acquainted with the leading lawyers in 
 Massachusetts, and with all of them I 
 have had very pleasant relations. For 
 several years, I had occasion to hear argu- 
 ments by nearly all the most distinguished 
 
 lawyers in the Commonwealth. There 
 142 
 
THE SUPERIOR COURT 
 
 were three members of the bar who, in my 
 judgment, used the most correct language 
 in addressing the court of any members 
 of the legal profession. They were Rich- 
 ard Olney, T. M. Stetson of New Bedford 
 and Daniel S. Richardson of Lowell. The 
 oral arguments of these three gentlemen, 
 if committed to writing, I think would 
 have been nearly perfect in point of 
 rhetoric. Neither of them were flowery 
 in their eloquence, but their command of 
 language was remarkable, and it was de- 
 lightful to listen to them. 
 
 In 1859 the present Superior Court was 
 established, succeeding practically to the 
 business and jurisdiction of the Court of 
 Common Pleas and of the Superior Court 
 for Suffolk County which were then abol- 
 ished. The real object of the passage of 
 the Statute was to get rid of several judges 
 on the Common Pleas bench who had 
 apparently outlived their usefulness. 
 
 To a lawyer who had no experience in 
 143 
 
A LAWYER'S RECOLLECTIONS 
 
 trying cases before tlie year 1859, the 
 proceedings of the old Common Pleas 
 Court would appear peculiar. At that 
 time lawyers were not obliged to stand 
 while examining witnesses. On the con- 
 trary, during the whole trial lawyers 
 would sit at the table and, there being no 
 stenographer in those days, would delib- 
 erately ask questions, writing the ques- 
 tions on their minutes, and, when the 
 witness answered, writing the answer. In 
 this way, trials were long and tedious, 
 although the bar took them much more 
 leisurely and with less fatigue than at 
 present. Generally the proceedings in 
 that court were exceedingly dignified and 
 slow. It was not unusual for a judge to 
 charge a jury for two or three hours on a 
 case of no special importance. 
 
 There was much indignation among the 
 bar when the judges of the Superior Court 
 promulgated the rule that lawyers must 
 
 stand during the examination of witnesses. 
 144 
 
THE SUPERIOR COURT 
 
 This rule made it necessary, in all cases of 
 importance, that two counsels should be 
 employed, one to examine the witness and 
 the other to take minutes of the testimony. 
 There was some talk of a formal protest 
 by the members of the bar, but I am not 
 aware that it was made. 
 
 One of the judges of the Court of Com- 
 mon Pleas was a great lover of horses. 
 He always kept a fast horse and was ac- 
 customed to test his speed in friendly 
 contests with his neighbors. While he 
 was holding court at Fitchburg, there was 
 a horse race at the fair grounds. At the 
 noon intermission he remarked to one of 
 the counsel that he would like very much 
 to attend that horse race and was sorry 
 that his duties would not permit him to 
 do so. The word was passed around 
 among members of the bar that the Judge 
 would like an excuse to attend the race. 
 Upon coming into court after dinner, the 
 
 plaintiff's counsel arose and stated to the 
 10 145 
 
A LAWYER'S RECOLLECTIONS 
 
 court that his principal witness had not 
 appeared and that he did not see how he 
 could go on without him. He regretted 
 exceedingly to ask the court for delay, 
 but it was utterly impossible to proceed 
 without the presence of this witness. (He 
 did not state to the court that the witness 
 was absent on account of a suggestion 
 made by the counsel.) His Honor said 
 that it was a great misfortune to waste 
 a half day at the expense of the county, 
 but under the circumstances he was com- 
 pelled to adjourn until the next morniug 
 as no other case was ready. Some of the 
 lawyers thereupon invited his Honor to 
 attend the horse race and the invitation 
 was accepted and he enjoyed the after- 
 noon amazingly. 
 
 None of the Common Pleas judges were 
 appointed upon the Superior Court. 
 Charles Allen and Marcus Morton, who 
 were judges of the Superior Court for the 
 
 County of Suffolk, were appointed. The 
 146 
 
THE SUPERIOR COURT 
 
 other appointments were made from the 
 bar. 
 
 One of the Superior Court judges was 
 Ezra Wilkinson of Dedham who for a 
 long time had been District Attorney of 
 Norfolk County. He was an exceedingly 
 able lawyer, a bachelor of grave and stern 
 demeanor and of great dignity. He had 
 a way, when he was at all embarrassed by 
 making a mistake or being guilty of any 
 slight solecism, of clearing his throat in a 
 most audible and terrific manner. 
 
 I remember when he was holding court 
 at Fitchburg, as usual a clergyman was 
 called to make the opening prayer. The 
 prayer was very long, and near the close, 
 when the Judge and bar were rather tired 
 of standing for such a length of time, the 
 clergyman prayed that the presiding jus- 
 tice might perform his duties successfully 
 during the term, that he might dispense 
 justice tempered with mercy, that the 
 criminals who should be brought before 
 147 
 
A LAWYER'S RECOLLECTIONS 
 
 the court (by the way, this was a civil 
 term), might meet with their just deserts, 
 and that finally, at the close of his ardu- 
 ous labors, the presiding judge might be 
 restored to the bosom of his wife and 
 family in good health and with the satis- 
 faction of duty well performed. Judge 
 Wilkinson cleared his throat so that 
 it might have been heard throughout 
 the county, and the members of the 
 bar with difficulty retained a devout 
 demeanor. 
 
 I remember another occasion when a 
 case involving a sale of friction matches 
 was tried before Judge Wilkinson without 
 a jury. At the close of the case the Judge 
 commenced to deliver his opinion. With 
 his usual dignity and slow and distinct 
 utterance, he began in this way: — "This 
 action is brought to recover the contract 
 price of a large amount of 'maction 
 fritches.'" Then came an immense clear- 
 ing of the throat but, without a smile on 
 148 
 
THE SUPERIOR COURT 
 
 his face, he added, — "I would say, friction 
 matches." 
 
 As I have already stated. Judge Wilkin- 
 son was a man of great dignity. He was 
 not only anxious to perform his own 
 duties, but insisted that others should per- 
 form theirs. At that time the Clerk of 
 the Superior Court of Worcester County 
 was in the habit of absenting himself for 
 an hour or so when he thought there would 
 be no special necessity for his remaining 
 in court. Upon one occasion when a case 
 was on trial at Fitchburg which appeared 
 to be sure to last the whole day, the Clerk 
 went out in the afternoon to make a call. 
 The case on trial suddenly broke down and 
 a new case was called. There were some 
 fifteen or twenty witnesses for the plaintiflf 
 who were called to be sworn. Judge Wil- 
 kinson looked down at the Clerk's desk 
 and perceived that the Clerk was absent. 
 Instead of administering the oath himself 
 
 as judges usually did under these circum- 
 149 
 
 ; 
 
A LAWYER'S RECOLLECTIONS 
 
 stances, he asked the Sheriff what had 
 become of the Clerk. The Sheriff pro- 
 fessed ignorance. Judge Wilkinson told 
 the Sheriff to go and find him. The 
 Sheriff departed, and the entire business 
 of the court ceased during his absence. 
 After an interval of several minutes he 
 returned and said he could find no trace 
 of him. I was sitting at the bar at the 
 time, and Judge Wilkinson said to me, — 
 "Mr. Torrey, I appoint you Clerk •pro tern 
 of this court." I therefore assumed the 
 seat of the Clerk, and the oath of office 
 was administered to me by Judge Wilkin- 
 son, who then directed me to administer 
 the oath to the witnesses. Senator Hoar, 
 who was one of the counsel in the case 
 called for trial, for the purpose of a little 
 innocent mischief, objected to my admin- 
 istering the oath, inasmuch as I had not 
 given bonds as the law required for dis- 
 charging the duties of the clerkship. Judge 
 
 Wilkinson, having cleared his throat in the 
 150 
 
THE SUPERIOR COURT 
 
 usual manner, called for the Statutes. He 
 examined them with due care and ruled 
 that it was not necessary for me to give a 
 bond before administering the oath. I 
 consequently administered the oath to the 
 witnesses and the case proceeded. In the 
 course of an hour the Clerk returned. I 
 was sitting in his seat at his desk. He 
 came up to the desk but I appeared not to 
 notice him and, to his surprise, did not 
 surrender the seat. He finally attracted 
 my attention and said, — "I would like 
 to resume my seat." I said to him, — "I 
 do not know you. I am Clerk of this 
 Court at present. If you have any au- 
 thority to take my seat, you must produce 
 it." I then explained to him how I came 
 to be there, and his indignation exceeded 
 all bounds. I surrendered my seat, and 
 he asked me what I had done during 
 my time of holding office. I told him 
 that I had administered the oath to 
 
 about twenty witnesses and receipted the 
 151 
 
A LAWYER'S RECOLLECTIONS 
 
 Clerk's bill of the firm of Wood and 
 Torrey. 
 
 Another judge who was appointed on 
 this bench was Judge Otis P. Lord of 
 Salem, a most excellent lawyer, quite 
 decided in his manner of utterance and 
 with a strong will of his own. I have some- 
 times seen him almost annihilate an at- 
 torney who had improperly brought an 
 action or was guilty of misconduct in the 
 course of his practice. 
 
 I remember one occasion at Worcester 
 
 when an attorney, whose name I will not 
 
 give, opened his case to the jury. This 
 
 attorney was an excellent gentleman but 
 
 among his acquaintances the common and 
 
 statute law were not included. He made 
 
 a long opening. When he had finished, 
 
 Judge Lord looked at him and said, — 
 
 "Mr. , I suppose you think you have 
 
 a case, don't you?" "Yes, your Honor," 
 
 was the reply, "I think so." "Well," 
 
 said the Judge, "I don't, and I shall take 
 152 
 
THE SUPERIOR COURT 
 
 this case from the jury on your opening, 
 if this is the only evidence you have." 
 The poor attorney had no more idea 
 wherein his case was lacking than a child 
 unborn. 
 
 I was trying a case before Judge Lord, 
 in which I appeared for the plaintiff, to 
 recover damages against the Boston and 
 Lowell Railroad for injuries received by a 
 brakeman in the course of his employment. 
 The injuries were quite serious and the 
 question of law was somewhat difficult. 
 Col. John H. George, attorney for that 
 Company, appeared for the defendant. 
 The case had proceeded nearly all day 
 when, during the examination of a wit- 
 ness. Judge Lord beckoned to Colonel 
 George and myself. We stepped up to 
 the desk and he said, — "Why don't you 
 settle this case.'' This poor fellow here is 
 seriously injured. There is considerable 
 doubt whether the road is liable; the pro- 
 ceedings will be costly to both sides; I 
 153 
 
A LAWYER'S RECOLLECTIONS 
 
 think you had better settle it." Colonel 
 George: — "What do you think we had 
 better do, Judge?" Judge Lord said, — "I 
 think you ought to give him a thousand 
 dollars." Colonel George said he would 
 do it and then turned to me and said, — 
 "Will you take it.?" I said "Yes." Judg- 
 ment was entered for that amount and 
 the case was disposed of. 
 
 An amusing story is told of one of the 
 judges who was appointed on the Superior 
 bench some years after it was established. 
 He was an excellent man, popular in his 
 county, but, unfortunately, was not very 
 well grounded in law. There being a 
 vacancy on the bench, a numerously signed 
 petition was presented for his appoint- 
 ment. The Governor expressed a doubt 
 whether the candidate was sufficiently well 
 grounded in law to properly discharge the 
 duties of the office. The petitioners 
 thought he was, and after considerable 
 talk the Governor said: "I will tell you, 
 154 
 
THE SUPERIOR COURT 
 
 gentlemen, what I will do, I will consult 
 Judge Bigelow, formerly Chief Justice of 
 the Supreme Court, and if Judge Bigelow 
 does not say that your candidate is totally 
 unfit for the position, I promise to appoint 
 him." Judge Bigelow was interviewed 
 and the Governor asked him whether he 
 did not consider that the applicant was 
 totally unfit for the position of Judge of 
 the Superior Court. Judge Bigelow re- 
 plied that he could not say that he was 
 totally unfit for the position, inasmuch as 
 one of the requisites was strict honesty 
 and integrity, and he thought the appli- 
 cant fulfilled these requirements. The 
 Governor, therefore, to keep his word, was 
 obliged to appoint him. 
 
 At one term of the Superior Court I 
 obtained three verdicts in cases tried be- 
 fore this judge, in each one of which ex- 
 ceptions were taken and allowed. When 
 these three cases came up to be heard be- 
 fore the full bench of the Supreme Court, 
 
 155 
 
A LAWYER'S RECOLLECTIONS 
 
 as the other side was the excepting party, 
 it was for my opponents to open and close, 
 but in each case the court called upon me 
 to go ahead and, after I had finished, de- 
 clined to hear the other side. Upon the 
 third call I stated to the court that I 
 certainly thought that the ruling of a 
 judge of the Superior Court ought to be 
 understood as presenting a -prima facie 
 case so that the excepting party should be 
 called upon to sustain his position. In 
 each of these cases the exceptions were 
 sustained and the verdicts set aside. 
 
 Among the judges of the Superior Court 
 was P. Emory Aldrich. He was an able 
 man, an excellent judge, conscientious, 
 very kind hearted, just and impartial in 
 his rulings, and honored and respected by 
 all who thoroughly knew him. His health 
 was far from perfect, and he was at times 
 somewhat irritable and would occasion- 
 ally be rather severe when upon the bench. 
 
 To those of us who knew him and had 
 156 
 
THE SUPERIOR COURT 
 
 practised with and against him at the bar, 
 these peculiarities caused no terror because 
 we knew they were induced by a mere 
 momentary impatience. 
 
 Before he was appointed to the bench, 
 he had been for many years District At- 
 torney, and was one of the ablest District 
 Attorneys that ever held that office in the 
 Commonwealth. Verdicts for the de- 
 fendant or disagreements were exceedingly 
 rare during his administration. He thor- 
 oughly examined the evidence, and if he 
 had grave doubts of the guilt of the de- 
 fendant he would not prosecute him; but 
 when he thought a defendant was guilty, 
 he would pursue him with a persistency, 
 skill and acuteness that rarely failed of 
 success. 
 
 At that time I was quite young at the 
 bar, and as our firm always had a number 
 of criminal cases it was my custom at the 
 beginning of the term to go to Worcester 
 and arrange for the trial of the cases in 
 157 
 
A LAWYER'S RECOLLECTIONS 
 
 which we had been retained. The proceed- 
 ings on these occasions were always identi- 
 cal. When our morning train arrived at 
 Worcester the court was opening for the 
 day. Mr. Aldrich would be at his desk 
 engaged in the prosecution of some crimi- 
 nal case. I sat down quietly beside him, 
 and when there was a lull in the proceed- 
 ings so that it would be proper to dis- 
 tract his attention, I would hand him a list 
 of my cases and ask him if he could not 
 arrange so that these cases might be tried 
 consecutively to save me the necessity of 
 spending the term in Worcester waiting 
 for the cases to be called. Most of the 
 cases were trivial ones of assault and bat- 
 tery or violation of the liquor law. In- 
 variably, when I laid the list before him 
 and made this request, he would turn upon 
 me, with the most savage expression, and 
 say, — "We cannot disarrange the whole 
 order of proceedings before this court 
 
 for the purpose of accommodating counsel. 
 158 
 
THE SUPERIOR COURT 
 
 I can make no arrangement in regard to 
 these eases. Whenever they are called 
 you must be here to attend to them or 
 they will go by default," If I had not 
 known him thoroughly, I should have 
 considered this decision as final. But I 
 knew this was nothing but the shower 
 which indicated the near approach of fair 
 weather, consequently I would remain 
 seated near him making no reply to this 
 observation. Sometimes, if he were feel- 
 ing particularly well, he would turn to me 
 within a few minutes and say, — "Be 
 over here on such a day and I will take 
 up your cases." If, on the other hand, he 
 was unusually depressed, weary or unwell, 
 it might be an hour or two before he 
 would make this observation. But it 
 always came, and I felt as certain when I 
 handed him the list that he would comply 
 with my request as if I had had his previ- 
 ous assurance. 
 
 Out of court he was always genial and 
 
 159 
 
A LAWYER'S RECOLLECTIONS 
 
 courteous, and I think nobody regretted 
 more than he did when he was apparently 
 discourteous or harsh in his rulings or 
 conversation. 
 
 After he was appointed to the bench of 
 the Superior Court, I was retained as 
 senior counsel in a case of malpractice in 
 Suffolk County brought against one of 
 the leading physicians of the city. Our 
 client was a young woman of prepossessing 
 appearance and, if her statement on the 
 witness stand was true, it was a gross case 
 of malpractice. She was contradicted by 
 several nurses and doctors. The case 
 lasted nearly a week. In the early part 
 of the proceedings, it was very evident 
 that the presiding judge thought there 
 was no merit in the plaintiff's case and 
 disbelieved her testimony. He was very 
 severe upon the plaintiff's counsel, and 
 although he made no rulings to which 
 exceptions could be taken, he showed 
 that he had a strong prejudice against the 
 160 
 
THE SUPERIOR COURT 
 justice of the plaintiff's case. While the 
 defendant was putting in his case, I ob- 
 jected to certain testimony. Judge Aid- 
 rich, with a look which used to frighten 
 young attorneys nearly to death said, — 
 "What is your objection?" I began very 
 quietly by saying that I did not think the 
 testimony was competent. The Judge 
 replied, — "It makes no difference what 
 you think; the testimony is competent and 
 I shall admit it." The jury smiled as they 
 always do when an attorney is snubbed by 
 the court. 
 
 I had no ill feelings on account of this 
 incident as Judge Aldrich and I were 
 always great friends, but during the trial 
 I spent considerable thought on how to 
 get even with the Judge for this remark 
 which I thought tended to prejudice our 
 case. During the closing argument, there- 
 fore, I treated the matter in this way. I 
 said to the jury, — "A certain incident 
 occurred during this trial which perhaps 
 u 161 
 
A LAWYER'S RECOLLECTIONS 
 
 you consider to be a reflection by his 
 
 Honor, the presiding judge, upon the 
 
 senior counsel for the plaintiff. If so, 
 
 you are entirely mistaken in your view of 
 
 the transaction. His Honor stated that 
 
 it made no difiference what I thought in 
 
 regard to the admissibility of certain 
 
 testimony. That statement was literally 
 
 and entirely true. The opinion of counsel 
 
 in regard to the admission of testimony is 
 
 to have no weight whatever with the jury. 
 
 It makes no difference what counsel think 
 
 in regard to it. You are to be governed 
 
 entirely as to the law by the rulings of the 
 
 Judge, and the opinion of the attorneys 
 
 connected with the case are not to have 
 
 the slightest bearing or effect whatever. 
 
 That is what his Honor meant when he 
 
 stated that it made no difiference what I 
 
 thought in regard to the admissibility of 
 
 certain testimony. But, gentlemen, when 
 
 you come to consider the facts of this case, 
 
 when you come to consider the question of 
 162 
 
THE SUPERIOR COURT 
 
 veracity between my client and the emi- 
 nent physician who figures as the defend- 
 ant, there is another proposition of law 
 which is equally true, and that is that, so 
 far as the facts are concerned, it makes no 
 earthly difference what either the counsel 
 or his Honor, the eminent Judge who pre- 
 sides at this trial, thinks in regard to them. 
 On a question of fact, the jury is supreme; 
 you are the only judges of such questions, 
 and if you should imagine for a moment, 
 from the charge of the presiding judge, 
 that he had any opinion in regard to the 
 facts of this case you will undoubtedly be 
 in error as his Honor is not allowed to 
 state to the jury his opinion of the facts, 
 and even if you are not in error and his 
 Honor has certain opinions in regard to 
 the facts of this case, I say with all respect, 
 and his Honor will confirm me in the state- 
 ment, that it makes no difference what he 
 thinks in regard to the facts. The ques- 
 tion is entirely for your consideration, 
 163 
 
A LAWYER'S RECOLLECTIONS 
 
 unaffected by the opinion of any one 
 else." 
 
 Judge Aldrich, so far from being offended 
 at my treatment of his remarks, was ap- 
 parently much tickled by it, and told me 
 at the close of my argument that he thought 
 I got back at him pretty well for his hasty 
 remark to me during the trial. 
 
 I had another amusing experience with 
 Judge Aldrich where the laugh was upon 
 me. While my family were away for the 
 summer, my house in Boston was broken 
 into and robbed of various articles of 
 apparel. The thief was discovered and 
 tried for the offence. I was a witness for 
 the purpose of identifying the stolen arti- 
 cles. I flattered myself that I made a 
 pretty good witness. At all events, I was 
 not a bashful or reluctant witness as the 
 District Attorney afterwards told me that 
 I identified, without the slightest hesita- 
 tion as the property of my wife, a cheap 
 imitation astrakhan jacket, which was 
 164 
 
THE SUPERIOR COURT 
 
 shown to me by mistake for the one that 
 was stolen, a garment worth eight or 
 ten times the amount of the one shown 
 me. 
 
 The culprit was defended by a young 
 colored lawyer who did not know me and 
 was not aware that I was a member of 
 the bar. In commenting upon my testi- 
 mony he was good enough to say that he 
 presumed I was a respectable man; at 
 all events, I appeared to be so on the 
 stand. He said, — " Gentlemen of the 
 jury, when a man who knows nothing 
 about the law, and has had no experience 
 in legal matters takes the stand in court 
 he is apt to be embarrassed and will inad- 
 vertently testify to things which are not 
 true, and I consequently ask you, when 
 you comment upon the evidence, to re- 
 member that he is entirely unfamiliar with 
 legal proceedings and very likely he might 
 have said things which are not entirely 
 
 correct." I was sitting at the bar at the 
 165 
 
A LAWYER'S RECOLLECTIONS 
 
 time and during these comments Judge 
 Aldrich gave me a most portentous wink. 
 
 The jury found the defendant guilty. 
 As I was leaving the court room, the Sheriff 
 told me that the defendant wished to see 
 me. I went to the dock and, with a merry 
 twinkle in his eye, the defendant said, — 
 "Were you aware when you visited me in 
 the cell at the station house that I had on 
 one of your vests stolen from your house?" 
 I told him that I did not notice it. He 
 said, — "All the time you were talking to 
 me I had on one of your vests and my coat 
 was unbuttoned so that it was in plain 
 sight and I expected every moment you 
 would recognize it." I made up my mind 
 that my forte was not the detective service. 
 
 Another prominent judge of the Su- 
 perior Court was Judge Robert C. Pitman. 
 He was also a good judge, and I think one 
 of the most conscientious men that I ever 
 met in public life. I was defending the 
 
 Fitchburg Railroad Company in the case 
 166 
 
THE SUPERIOR COURT 
 of Murray v. Fitchhurg Railroad Company, 
 130 Mass. 99, and the second trial was held 
 before Judge Pitman. This was an action 
 of trespass which involved the title to 
 land which we claimed was covered by our 
 location. Evidence of possession of part 
 of the land covered by our location was 
 offered by the plaintiff. I objected to this 
 evidence on the ground that no length of 
 possession of land covered by our location 
 could avail the plaintiff. This was by 
 force of a Statute of Massachusetts. It 
 seemed that the attention of Judge Pitman 
 had not been called to this Statute or that 
 he had forgotten its existence. He said 
 to me, therefore, with a smile, — "Mr. 
 Torrey, you seem to think that there is 
 something sacred about the rights of a 
 railroad company," and, with the smile 
 still on his face, looked toward the jury. 
 They were immensely tickled with this 
 remark. The case resulted in a verdict for 
 
 the plaintiff. I made a motion for a new 
 167 
 
A LAWYER'S RECOLLECTIONS 
 
 trial solely on the ground that this remark 
 of the Judge prejudiced the jury, and that 
 it implied that there was no merit in our 
 defence. The Judge took time to consider, 
 and granted a new trial on that ground. 
 He was frank enough to state that he 
 thought the remark and manner of ex- 
 pressing it were improper and tended to 
 influence the jury, and he therefore set 
 aside the verdict. Very few judges would 
 have been so free to admit that they had 
 inadvertently prejudiced the case of one 
 of the litigants. 
 
 Another well-known judge of the Supe- 
 rior Court was Charles P. Thompson of 
 Gloucester. He was exceedingly witty 
 and was very popular among the bar and 
 the people of the Commonwealth, so much 
 so that, although he was a Democrat, he 
 was elected to Congress from a strong 
 Republican district. He had an extensive 
 practice before he was appointed to the 
 bench. His voice was very loud and fre- 
 168 
 
THE SUPERIOR COURT 
 
 quently, when he became interested in 
 his case, he would use unnecessary violence 
 so that he could be heard not only through- 
 out the whole court room but anywhere in 
 the vicinity of the Court House. During 
 one of his arguments the presiding judge 
 interrupted him and asked him if he would 
 be kind enough to speak lower as he was 
 using much unnecessary force and vehe- 
 mence. He complied and continued his 
 argument in a much lower tone of voice. 
 One of the jurors fell asleep during the 
 argument. Brother Thompson turned to 
 the Judge, in a very humble way, and said, 
 — "Please, Your Honor, may I speak loud 
 enough to wake up this juror.?" 
 
 In private conversation Judge Thomp- 
 son would frequently stutter to some ex- 
 tent. After he was appointed to the bench, 
 while coming into Boston from Gloucester 
 to attend court, a short time before arriv- 
 ing at the station he was introduced to a 
 
 gentleman by a mutual friend. The gentle- 
 169 
 
A LAWYER'S RECOLLECTIONS 
 
 man sat in the seat with Judge Thompson 
 and the Judge immediately began to tell 
 him a story in which he stuttered consider- 
 ably. Some months after, the same gen- 
 tleman met Judge Thompson in the train 
 and introduced him to a third party. 
 After the introduction he asked Judge 
 Thompson if he would not be kind enough 
 to repeat to his friend that stuttering story 
 that he told him on the trip to Boston some 
 weeks previously. He thought the stutter- 
 ing belonged to the story rather than to 
 the narrator. 
 
 There was formerly in Bristol County an 
 eccentric character who for many years 
 had been crier of the court. He had a 
 voice like a fog horn. When he called a 
 litigant to come into court and prosecute 
 or defend his suit or a default or nonsuit 
 would be entered, he could have been 
 heard all over Bristol County, and no 
 inhabitant of the county, unless he were 
 
 deaf, could have failed to have prosecuted 
 170 
 
THE SUPERIOR COURT 
 
 his action through inadvertence. While I 
 was arguing a case before the full bench at 
 Taunton, there came up a tremendous 
 thunder shower. The crier was soundly 
 sleeping at his desk. Suddenly there was 
 a terrific peal of thunder, apparently im- 
 mediately over the Court House. This 
 awoke the crier. Hearing a loud noise, but 
 not realizing the cause of the disturbance, 
 he thought there was some confusion in 
 the court room and brought his fist down 
 on the desk shouting, in a stentorian tone, 
 — "Silence in the Court!" Before re- 
 suming my argument, I stated to the 
 court that, although I was well aware of 
 the dignity of the Supreme Judicial Court 
 of Massachusetts, it was a surprise to me 
 that the Almighty was called to order for 
 disturbing it. 
 
 I was at one time retained as senior 
 counsel for the defence in a breach of 
 promise suit. The letters of the defend- 
 ant, which were relied upon as constituting 
 171 
 
A LAWYER'S RECOLLECTIONS 
 
 an agreement for marriage, were written 
 upon telegraph and telephone blanks, I 
 presume because the defendant was em- 
 ployed by the Company and used the 
 blanks as a matter of convenience or 
 economy. When the plaintiff's counsel 
 introduced the letters he began to read the 
 first one, commencing "My darling Laura." 
 I objected on the ground that the whole of 
 the document should be read. The court 
 sustained the objection, and the plaintiff's 
 counsel therefore began to read as follows: 
 "New England Telephone and Tele- 
 graph Company. Telephonic Message. 
 The following message has been trans- 
 mitted in whole or part by telephone, sub- 
 ject to conditions limiting the liabilities 
 for errors, delays, and mistakes, which 
 have been agreed to by the sender, and 
 under which damages can in no case be 
 recovered exceeding the tolls paid hereon, 
 nor unless claimed in writing, within 
 thirty days from sending the message." 
 172 
 
THE SUPERIOR COURT 
 
 "My darling Laura," etc. 
 
 Perhaps because the jury were under 
 the impression that the above named 
 agreement prevented the plaintiff from 
 recovering damages except on the condi- 
 tions referred to, the defendant obtained 
 a verdict. 
 
 There was formerly an eminent member 
 of the Suffolk bar who achieved great 
 success as counsel for the plaintiff in acci- 
 dent cases. The verdicts which he re- 
 covered were very large for those days. 
 He had the faculty of shedding tears 
 whenever it was deemed expedient, and 
 I have often seen him, in making the clos- 
 ing argument for a plaintiff, while com- 
 menting upon the injuries received by his 
 client, crying as if his heart would break. 
 
 I was at one time defending the Fitch- 
 burg Railroad Company against an acci- 
 dent suit brought by him and wished to 
 caution the jury against being affected by 
 the manifestations of grief on the part of 
 173 
 
A LAWYER'S RECOLLECTIONS 
 
 the plaintiff's counsel. In closing my ar- 
 gument for the defendant I stated to the 
 jury that it was the custom of the learned 
 counsel for the plaintiff to be apparently 
 overcome with grief in his closing argu- 
 ment, and to shed tears copiously when 
 commenting upon the injuries which his 
 client received. I suggested to the jury, 
 however, that they should not be greatly 
 influenced by this proceeding, inasmuch, 
 as I had no doubt, that for every tear 
 which coursed down the cheeks of the plain- 
 tiff's counsel his client was charged at 
 least ten dollars. It is hardly necessary 
 to state that in arguing that case no tears 
 were shed. 
 
 Several years ago Dr. Henry G. Clark, 
 a distinguished physician in Boston, was 
 employed to a great extent as a medical 
 expert in accident cases. In nearly every 
 important case he appeared either for the 
 plaintiff or defendant. He resided on Mt. 
 
 Vernon Street and used to drive a white 
 174 
 
THE SUPERIOR COURT 
 
 horse which was very well known in Boston. 
 This horse would stand in front of the old 
 Court House in Court Square while the 
 Doctor was testifying. 
 
 In an accident case in which I appeared 
 for the plaintiff, Dr. Clark was our chief 
 medical expert. The defendant's counsel 
 showed in cross-examination of the Doctor 
 that he appeared in a great many cases. 
 In his closing argument he made consider- 
 able fun by stating that the Doctor's well- 
 known white horse, if let loose at any time 
 in the streets of Boston, would undoubt- 
 edly proceed to the Court House and 
 stand in front of it, as he passed the most 
 of his time in that locality. This sally of 
 course pleased the jury, and I feared that 
 it might lead to the belief that the Doctor 
 was testifying rather stronger than was 
 to be expected on the part of an honest 
 expert. In closing for the plaintiff, I 
 alluded to this remark of the defendant's 
 
 counsel and said that I thought it was 
 175 
 
A LAWYER'S RECOLLECTIONS 
 
 undoubtedly true. It was a fact that Dr. 
 Clark testified much more frequently than 
 any other physician in Boston, and the 
 reason was obvious. He stood at the head 
 of the profession as a medical witness, and 
 the first question that would occur to any 
 counsel in an accident case was what was 
 the opinion of Dr. Clark upon the extent 
 of these injuries, as his opinion was of more 
 value than that of any other physician in 
 Boston. That was the reason why he 
 appeared so much more frequently for the 
 plaintiff than for the defendant, inasmuch 
 as the plaintiff, before the suit was brought, 
 consulted him and retained him as a medi- 
 cal expert. The jury seemed to take this 
 view of the case, as large damages were 
 awarded. 
 
 176 
 
CHAPTER V 
 
 THE SUPREME JUDICIAL COURT 
 
 When I was admitted to the bar, the Su- 
 preme Judicial Court consisted of six 
 judges, — viz.: Chief Justice Bigelow and 
 Justices Dewey, Metcalf, Merrick, Hoar 
 and Chapman, This was a very able 
 court. Judges Bigelow, Merrick and 
 Hoar were graduates of Harvard College, 
 and Justices Dewey, Metcalf and Chap- 
 man received the honorary degree of 
 LL.D. from the same institution. 
 
 Chief Justice Shaw, after serving thirty- 
 one years, resigned in 1861, the year of my 
 admission to the bar. As is well known, 
 he was one of the ablest lawyers in this 
 country, and has a great reputation where- 
 ever the English common law is adminis- 
 tered. He was certainly the wisest looking 
 man when sitting on the bench that I ever 
 12 177 
 
A LAWYER'S RECOLLECTIONS 
 
 saw, and seemed to impress one as being 
 omniscient. If lie did not know every- 
 thing, he never furnished any proof of 
 such lack of knowledge. 
 
 Perhaps Judge Hoar had the keenest 
 intellect of any member of the court at 
 this time. 
 
 The quaintest character was Theron 
 Metcalf , exceedingly proficient in the com- 
 mon law, but for some reason he had little 
 or no acquaintance with the statute law 
 of the Commonwealth. He seemed to 
 feel that any alteration of the common law 
 by the learned Solons at the State House 
 amounted almost to sacrilege. I remember 
 hearing Judge Metcalf charge the jury 
 when he laid down the law of the case in 
 favor of the plaintiff. At the close of the 
 charge, the defendant's attorney stated to 
 the court that the statute law of Massa- 
 chusetts had changed the common law 
 rule which had been given to the jury as 
 the law governing the case. Judge Met- 
 178 
 
THE SUPREME JUDICIAL COURT 
 
 calf said; "Where is this Statute?" The 
 attorney answered: "It is contained in the 
 General Statutes." "Very likely," said 
 Judge Metcalf, "I never read them. Pass 
 them up here, please." The attorney 
 handed him the General Statutes, and he 
 saw at once that he had laid down the law 
 incorrectly, and in a supplementary charge 
 told the jury that the Legislature of Massa- 
 chusetts, in its wisdom, had seen fit to 
 annul the beneficent provisions of the com- 
 mon law, and he was therefore constrained 
 to change his instructions. 
 
 It is related of Judge Merrick that he 
 was, at one time, holding a jury session 
 of the court at Nantucket and, on coming 
 out of the Court House with the Deputy 
 Sheriff in attendance as usual, he slipped 
 and fell. The Sheriff was greatly alarmed 
 but, instead of offering any consolation or 
 expressing any fears for his personal safety, 
 he said, while assisting him to arise, — 
 
 "Thank God that it was not the Chief 
 179 
 
A LAWYER'S RECOLLECTIONS 
 
 Justice." Although this anecdote shows 
 the veneration in which Judge Shaw was 
 held at the time, there may be some 
 doubt if the remark was particularly con- 
 soling to his unfortunate associate. 
 
 I argued my first case before the full 
 bench of the Supreme Court in 1862 and my 
 last one in 1901. During this period I ap- 
 peared in about one hundred and thirty 
 cases before the full court before thirty -one 
 judges. There was nothing in my expe- 
 rience before the court worthy of particular 
 attention unless it may be entertaining to 
 consider two or three cases which furnished 
 some amusement to the court and bar. 
 
 The first case that I argued before the 
 full bench of the Supreme Court was 
 Bruce v. Priest, 5 Allen 100. This was an 
 action for assault and battery brought by 
 a famous old litigant named Joel Bruce, 
 about seventy-five years of age, a notori- 
 ously bad character and one who indulged 
 
 in law suits as a drunkard indulges in in- 
 180 
 
THE SUPREME JUDICIAL COURT 
 
 toxicating liquor. At the time the assault 
 was committed the plaintiff, with a woman 
 who lived with him as his wife but to 
 whom he was not married, entered the 
 house of the defendant's father. After 
 some unfriendly conversation, the defend- 
 ant ordered the plaintiff and the woman 
 to leave. This order not being immedi- 
 ately complied with, the defendant pro- 
 cured a horse whip and struck the plaintiff 
 several blows while he was leaving the 
 premises. The defendant, in mitigation 
 of damages, was allowed to introduce evi- 
 dence that the general reputation of the 
 plaintiff, and of the woman by whom he 
 was accompanied, for moral worth and 
 integrity was bad. The jury returned a 
 verdict for the plaintiff with seventy- 
 three dollars' damages, and he alleged ex- 
 ceptions on account of the admission of 
 the evidence above referred to. The 
 exceptions were sustained, and I was suc- 
 cessful in establishing the principle that if 
 181 
 
A LAWYER'S RECOLLECTIONS 
 
 a man, accompanied by his paramour, 
 intrudes himself into the house of another, 
 he still has the right to be protected from 
 assault and battery. 
 
 I trust that no one who reads these pages 
 will seek to avail himself of this provision 
 of the law. 
 
 Since my admission to the bar, there 
 has been a great change in the method of 
 preparing and arguing cases before the full 
 court. At that time the briefs never con- 
 tained a statement of the case. A brief 
 was seldom more than one page long, and 
 included merely the points relied upon, 
 and of the authorities in their support. 
 This custom had its advantages and its 
 disadvantages. The advantage of it, so 
 far as the bar was concerned, was that it 
 compelled the judges to pay attention to 
 the oral arguments. The judges then 
 could not, as they sometimes do now, spend 
 the time in reading the long briefs of the 
 
 parties, apparently giving no attention 
 
 182 
 
THE SUPREME JUDICIAL COURT 
 
 whatever to the oral arguments addressed to 
 them. At that time every judge listened 
 with attention to the oral arguments of the 
 parties, no matter how tedious or irrelevant 
 they may have been. The change from this 
 custom was quite gradual, — briefs began 
 to grow longer and consequently oral argu- 
 ments were not of so much importance. 
 
 As a matter of curiosity I transcribe the 
 defendant's brief in Dawson v. Wetherbee, 
 2 Allen 461. 
 
 " Worcester ss. Supreme Judicial Court. Oct. Term, 
 1861. 
 
 Charles L. Dawson v. Marshall Wetherbee. 
 
 Defendant's Brief. 
 
 The evidence proposed by the plaintiff was 
 rightly rejected by the Court. 
 
 Kimball v. Thompson, 4 Cush. 441. 
 There was no necessity for an avowry as the 
 verdict found that the plaintiff had no property 
 or interest in the horse. 
 
 Quincy v. Hall, 1 Pick. 357. 
 Fleet V. Lockwood, 17 Conn. 
 183 
 
A LAWYER'S RECOLLECTIONS 
 
 This brief was unusually short, but, as 
 I have already said, at the time of my ad- 
 mission to the bar many briefs did not 
 exceed a single page, and it was unusual 
 for them to exceed two pages in length. 
 
 I remember on one occasion when I was 
 arguing a question which seemed to me of 
 great importance, the attention of the 
 whole court, with one exception, seemed 
 to be diverted from listening to my argu- 
 ment. Some of the judges were reading 
 the briefs, and the Chief Justice and one 
 of his associates were engaged in conversa- 
 tion. I immediately stopped and resumed 
 my seat. The sudden silence in the court 
 room attracted the attention of the court. 
 The Chief Justice asked me if I was through. 
 I stated that I was not, but I thought the 
 court was otherwise engaged and I had 
 paused until they had finished the business 
 in hand. I was not reproved for this 
 statement; in fact I think that the judges 
 felt, at the time, that they were not treat- 
 184 
 
THE SUPREME JUDICIAL COURT 
 
 ing the bar with the courtesy usually- 
 extended to them. 
 
 There was much more litigation in those 
 days in small cases than there is at present. 
 Many people seemed to be natural liti- 
 gants. They enjoyed legal controversies, 
 and would spend money freely for the sake 
 of indulging their whims and caprices. 
 
 The case of Park v. Baker, 7 Allen 78, was 
 a case of this character. The only ques- 
 tion involved in that case, which was 
 tried before a justice of the peace and, on 
 appeal, tried two or three times in the 
 Superior Court and finally argued before 
 the Supreme Court, was whether an ice 
 chest, worth perhaps five dollars, was 
 personal property or attached to the real 
 estate as a fixture. Both parties were 
 notorious litigants and had fought each 
 other for years. Although this case was 
 decided against me by the full bench, I 
 eventually recovered a verdict of five 
 
 dollars, which carried the costs of three 
 185 
 
A LAWYER'S RECOLLECTIONS 
 
 or four trials, but was received with as 
 much deUght by my cUent as if he had 
 recovered a fortune. 
 
 It was formerly much easier than it now 
 is to upset a verdict upon exceptions. In 
 the case of Fairbanks v. Fitchhurg, 110 
 Mass. 224, a verdict of the Sheriff's jury, 
 before whom the trial lasted nearly a week, 
 was set aside simply because the Sheriff 
 allowed the following question to be put 
 to the petitioner: — "What is the prob- 
 able future use of your remaining land?" 
 To which the petitioner answered, — "For 
 manufacturing purposes." The court 
 ruled that this question was not admis- 
 sible and granted a new trial. I do not 
 think a new trial would at present be 
 granted under the same circumstances. 
 
 The case of Hadley v. Heywood, 121 
 Mass. 236, furnished considerable amuse- 
 ment for the court and counsel, although 
 probably the parties did not share in the 
 enjoyment. In this case I was employed 
 186 
 
THE SUPREME JUDICIAL COURT 
 
 as senior counsel, and took no part in it 
 until the case was ready for trial. 
 
 This was an action of tort in which the 
 plaintiff declared in two counts, — in the 
 first alleging that the defendant had de- 
 bauched the plaintiff's wife and deprived 
 him of her society, and, in the second count, 
 that the defendant had alienated the affec- 
 tions of the plaintiff's wife and enticed her 
 to desert the plaintiff. 
 
 Both the plaintiff and defendant were 
 farmers in a country town in Worcester 
 County. The plaintiff Hadley was consid- 
 erably older than his wife. He testified 
 that he lived happily with her for some 
 years when he began to suspect her of 
 infidelity with the defendant; that he had 
 been much troubled, had remonstrated 
 with the defendant, had objected to his 
 visits, and that soon after his wife left 
 him and went to her mother's house to 
 live. 
 
 The evidence of adultery was not very 
 187 
 
A LAWYER'S RECOLLECTIONS 
 
 strong. We proved that the defendant 
 frequently called at the plaintiff's house 
 when he was absent, that the defendant 
 took the plaintiflf's wife to ride, and that 
 the defendant's horse was seen hitched by 
 the roadside, near the woods, the carriage 
 being unoccupied, and that, shortly be- 
 fore and after, the defendant and Mrs. 
 Hadley were seen in the carriage. 
 
 It was my duty to cross-examine the 
 plaintiff's wife who testified for the de- 
 fence. She was quite a bright woman, 
 and made a very good witness. I was 
 unable to elicit any testimony from her 
 which tended to implicate her. She testi- 
 fied that there had been no improper 
 relations between her and the defendant; 
 that he was simply an ordinary acquaint- 
 ance, never gave her any presents or 
 showed any particular affection for her. 
 After cross-examining her at considerable 
 length I began to despair of obtaining any 
 
 testimony from her favorable to our case. 
 188 
 
THE SUPREME JUDICIAL COURT 
 
 As I was about to abandon the cross-ex- 
 amination, I noticed a gold ring upon her 
 finger. I asked her where she got it, and 
 she said she bought it some years before. 
 The thought occurred to me that it was 
 a gift from the lover, and that there might 
 be an inscription inside the ring to that 
 eflFect. I asked her if she would allow me 
 to examine the ring and she indignantly 
 declined. Upon appealing to the court, 
 the Judge directed her to permit me to 
 see it. With the aid of a magnifying glass, 
 I was able to read an inscription engraved 
 on the inside of the ring as follows : — 
 "Ham to Lu." (The defendant's name 
 was Hiram and that of the plaintiff's wife 
 Lucia.) I think this ring was the turning 
 point which enabled us to obtain a verdict 
 from the jury. 
 
 The defendant introduced evidence that 
 the plaintiff had always been morose, 
 cross and profane; that he had, on various 
 
 occasions, used violence to his wife by 
 189 
 
A LAWYER'S RECOLLECTIONS 
 
 striking her, etc., and that this treatment 
 was both before and after the time when 
 the plaintiff stated that his suspicions had 
 been aroused. 
 
 The defendant asked the Judge to in- 
 struct the jury that, in order to find a 
 verdict under the second count, the jury- 
 must be satisfied that the plaintiff's wife 
 left him solely on account of the wrongful 
 acts of the defendant, and that, if the 
 cruelty of the plaintiff was one of the rea- 
 sons that caused her to leave, the plaintiff 
 could not recover. 
 
 It will be observed that if this instruc- 
 tion had been given, no husband who had 
 treated his wife in an improper manner 
 could recover damages for her seduction 
 and the loss of her services and consortium, 
 if one reason of her leaving his abode had 
 been the abusive treatment which she 
 received from him. In other words, if 
 this instruction had been given, a hus- 
 band who was cross and abusive could 
 190 
 
THE SUPREME JUDICIAL COURT 
 
 have no remedy against any person who 
 seduced his wife. 
 
 The presiding judge refused to give this 
 instruction, and submitted the case to the 
 jury. The jury, after a long deUberation, 
 returned into court with a general verdict 
 for the plaintiff, and damages assessed at 
 $657.10. The Judge thereupon, at the 
 suggestion of both counsel, asked the jury 
 whether they found their verdict on both 
 counts or on only one, to which they re- 
 plied through their foreman, — "On the 
 second count," that is, on the count for 
 enticing the plaintiff's wife to leave her 
 husband. Both counsel suggested the 
 question, — "How did they find on the 
 first count?" To this question the jury 
 stated that they did not agree upon the 
 first count. The clerk proposed to enter 
 the verdict for the plaintiff, and to state 
 on the docket that it was found on the 
 second count. The defendant's counsel 
 
 at once objected to the reception and 
 191 
 
A LAWYER'S RECOLLECTIONS 
 
 entry of the verdict in that form, and con- 
 tended that the defendant was entitled 
 to an agreement on that count, or to have 
 the jury discharged as disagreed. After 
 a colloquy between the counsel and the 
 court, the plaintiff suggested that he 
 would ask for leave to amend by striking 
 out the first count. To this the defendant 
 objected. The Judge therefore sent the 
 jury out again and told them that it was 
 their duty to agree upon both counts. 
 The jury then retired. After further delib- 
 eration they returned into court bringing 
 in the same written verdict as before, that 
 is, a general verdict for the plaintiff for 
 $657.10. The Judge asked if the jury had 
 agreed on the first count. The foreman 
 replied, — "We did not find for the plain- 
 tiff on the first count." The Judge asked 
 if they agreed for the defendant on the 
 first count, to which the foreman replied, — 
 "We did not." A member of the jury in- 
 terrupted and said, — "There is some 
 193 
 
THE SUPREME JUDICIAL COURT 
 
 mistake; we did agree for the defendant 
 on the first count." To this the foreman 
 then assented, and the jury were then sent 
 out with the papers to put their verdict 
 in form. They finally returned with a 
 verdict as follows: — "The jury find for 
 the defendant on the first count, and for 
 the plaintiff on the second count, and 
 assess damages in the sum of $657.10." 
 The verdict in this form was duly affirmed 
 and recorded against the objections of the 
 defendant. 
 
 The case was tried before Judge Rock- 
 well, a most excellent gentleman, but not 
 an exceedingly accurate lawyer. He was 
 completely at a loss what to do, and be- 
 fore the jury was sent out the second time 
 he tossed the verdict to me and said, 
 "Take that verdict and put it in any form 
 you please; do what you have a mind to 
 with it and I will assent to it, and then 
 the verdict can go up to the Supreme 
 Court. I do not know what to do myself." 
 13 193 
 
A LAWYER'S RECOLLECTIONS 
 
 The exceptions argued before the Su- 
 preme Court were twofold. In the first 
 place, whether it was a sufficient defence 
 in an action for seduction that the plain- 
 tiff's wife left him on account of his cruel 
 treatment, and secondly, whether the de- 
 fendant was entitled to a new trial be- 
 cause the jury did not at first find a verdict 
 for the defendant on the first count. 
 
 As in my judgment the position taken 
 by the defendant was absurd, I attempted 
 to make it as absurd as possible in the 
 brief, and it may be amusing to quote 
 some passages from it which, at the time 
 of the argument before the Supreme 
 Court, were rather entertaining to the 
 court and bar. 
 
 "1. The defendant's prayer for instruc- 
 tions is in substance a request for a ruling 
 that the wife of a morose and cruel man 
 may be seduced or enticed with impunity. 
 
 There was probably never a case of this 
 194 
 
THE SUPREME JUDICIAL COURT 
 nature where the conduct of the husband 
 did not have some effect upon the course 
 of the wife in yielding to improper ad- 
 vances; but it is beheved that this is the 
 first attempt to extend the doctrine of 
 contributory negligence as applied in the 
 case of a traveller upon a highway to 
 the more intricate paths of matrimonial 
 life." 
 
 "The application of this doctrine is not 
 unattended with difficulties. To what 
 extent must the disagreeable habits of the 
 husband extend.'' Were the marital rights 
 of Dr. Johnson beyond the pale of law? 
 Is it a rule of morals as well as of law.?* 
 Was Socrates released from his marriage 
 vows-f^ That great moralist advanced no 
 such doctrine, and sought no such harbor 
 of refuge. . . . 
 
 "2. The proceedings in the presence of 
 the jury were ludicrous but legal, and hav- 
 ing properly served their purpose in en- 
 livening the course of the trial should not 
 195 
 
A LAWYER'S RECOLLECTIONS 
 
 afford an opportunity to the defendant to 
 escape the verdict. 
 
 "In the case at bar it is manifest that 
 the jury intended to find that the de- 
 fendant enticed the plaintiff's wife, but 
 did not commit adultery, and the defend- 
 ant now complains that he was not found 
 guilty of the latter offence also. His 
 remedy is in the criminal court." 
 
 Another case which may furnish some 
 entertainment is Wood v. Medfield, 123 
 Mass. 545. The plaintiff was a school 
 teacher in the town of Medfield and was 
 employed by the school committee to 
 teach the high school. The contract was 
 contained in the following letter: — 
 
 "Medfield, Aug. 17, 1873. 
 C. E. Wood, Esq.: 
 
 My dear Sir, — 
 
 The School Committee have had under 
 
 consideration your proposal. 
 196 
 
THE SUPREME JUDICIAL COURT 
 
 It was voted by the Board that the 
 secretary notify you that the committee 
 will give you the sum of $1,200 to teach 
 the High School in Medfield, on condition 
 that you teach from July 7, 1873, to 
 July 7, 1874, and not without. Please 
 reply immediately. 
 
 The first term will commence Sept. 1st. 
 Yours truly. 
 Chairman School Committee." 
 
 Before the year had expired, the school 
 committee voted to close the school and 
 discharge the teacher. The school was 
 therefore closed and the teacher was 
 notified that his services were no longer 
 required. No reason was given for such 
 dismissal, and there was no evidence of 
 any fault or incompetence on the part of 
 the teacher. 
 
 The plaintiff contended that this letter, 
 and the acceptance of the same, consti- 
 tuted a contract for the year which could 
 197 
 
A LAWYER'S RECOLLECTIONS 
 
 not be terminated by either party before 
 the expiration thereof without sufficient 
 cause. 
 
 The defendants justified their action by 
 virtue of the following Statute, viz. : "The 
 School Committee may dismiss from em- 
 ployment any teacher whenever they think 
 proper, and such teacher shall receive no 
 compensation for services rendered after 
 such dismissal." 
 
 The plaintiff contended that, in spite 
 of this Statute, the Committee could make 
 a contract for a year binding upon both 
 parties which could only be terminated 
 for cause. 
 
 The defendants, on the other hand, con- 
 tended that no matter how solemn a con- 
 tract might be made for a year the School 
 Committee at any time could discharge 
 the teacher with or without cause and 
 close the school, or appoint another teacher 
 in his place. 
 
 The letter, which constituted the letter 
 198 
 
THE SUPREME JUDICIAL COURT 
 
 of hiring, afforded so obvious an opportu- 
 nity for sarcasm that the plaintiff's counsel 
 was unable to resist it and, in his brief, 
 took the following positions: 
 
 "The plaintiff desires in the first place 
 to call the attention of the Court to the 
 language of the contract; that it is not 
 only a contract for a year, but for the 
 purpose of making the yearly term more 
 emphatic this contract is made an express 
 condition of the hiring, and to make 
 assurance doubly sure these words are 
 added, 'and not without.' Such an ex- 
 hibition of tautology on the part of the 
 School Committee is wholly unaccount- 
 able except upon the supposition that in 
 order to render the time more completely 
 of the essence of the contract they were 
 willing to throw rhetoric to the dogs. 
 There never was a case of more solemn 
 and impressive hiring for a stated term. 
 
 If the defendants intended to reserve the 
 199 
 
A LAWYER'S RECOLLECTIONS 
 
 power of dismissal it should have been 
 stated in the contract. 
 
 "The mind is hardly able to comprehend 
 the suggestion that by virtue of this statute 
 the committee may terminate without 
 cause an express and solemn contract, so 
 repugnant does it appear to the principles 
 of justice and morality which were imbibed 
 at these same schools. Schools are in- 
 stituted, says the Constitution, 'to coun- 
 tenance and inculcate the principles of 
 humanity and general benevolence, public 
 and private charity, industry and frugal- 
 ity, honesty and punctuality; sincerity, 
 good humor and all social affections and 
 generous sentiments among the people.' 
 
 "What a lovely example of 'honesty' 
 and 'sincerity' how promotive of 'good 
 humor and all social affections and gener- 
 ous sentiments;' to employ a teacher on 
 the express condition that he shall teach 
 a year, ' and not without,' and to discharge 
 
 him without cause from a school where 
 200 
 
THE SUPREME JUDICIAL COURT 
 
 he had become endeared to his pupils by 
 his faithful services in their behalf. If 
 the conduct of the defendants be author- 
 ized by Chapter 38 of the General Statutes, 
 it will certainly be difficult to find a sanc- 
 tion for it in any chapter of that book by 
 the daily reading of which in the common 
 English version it is customary to com- 
 mence the exercises of the public schools. 
 Were the plaintiff permitted to read the 
 Bible with 'written note or oral com- 
 ment,' he might make a very edifying 
 application of some portion of it to 
 the defendants' course in the case at 
 bar." 
 
 The plaintiff lost his case, and it was 
 held that, in spite of the solemn contract 
 of hiring for the year, the Committee 
 could violate it at any time it saw 
 fit. 
 
 The cases of Brackenridge v. Fitch- 
 burg, 145 Mass. 160, were very amusing 
 201 
 
A LAWYER'S RECOLLECTIONS 
 
 ones. The facts sufficiently appear in the 
 following extracts from the defendant's 
 brief: 
 
 "The facts in these two cases are ex- 
 actly the same. There is but one question 
 for the Court; which question is simple, 
 unique and ludicrous. The plaintiffs were 
 driving in the evening, when it was rain- 
 ing a little and was quite dark, upon a 
 highway in the city of Fitchburg which 
 they had been accustomed frequently to 
 travel, with a horse that had been owned 
 and used by them for about five years. 
 For about two years prior to the accident 
 the horse had been totally blind, but was 
 otherwise safe and had been in constant 
 use by the male plaintiff and his family. 
 He was driving at the terrific rate of about 
 five miles an hour, and there was some 
 evidence that he was driving even faster 
 than this tremendous speed. The horse 
 went into a hole in the street, consisting 
 202 
 
THE SUPREME JUDICIAL COURT 
 
 of a tunnel or ditch about three feet wide 
 and two deep, and from forty to sixty feet 
 long, in the line of the left wheel ruts of 
 the street, which defect had been caused 
 by the water undermining the street and 
 causing it to cave in. The only exception 
 taken by the defendant is to the refusal 
 of the presiding Judge to instruct the jury 
 that as a matter of law a blind horse was not 
 a safe and suitable horse to drive on the 
 highway under the circumstances stated, 
 and that the plaintiffs would be thereby 
 precluded from recovery. 
 
 "As a matter of law can the Court say 
 that a blind horse is an unsafe horse to 
 drive? It is difficult to discuss this ques- 
 tion seriously. It seems that any one with 
 a proper sense of the ludicrous must be 
 aware that such cannot be the law. It 
 cannot be possible that a bench of judges 
 are to pass upon questions whether certain 
 conditions and diseases of horses render 
 them unfit for use, and banish them and 
 
 203 
 
A LAWYER'S RECOLLECTIONS 
 
 their drivers from the protecting care of 
 the beneficent principles of our common 
 law. Should the Court take jurisdiction 
 to decide this case, it would find itself 
 overwhelmed with questions of a like 
 character. For instance, is it safe to drive 
 a horse afflicted with farcy or the mad 
 staggers? Do mallenders, sallenders, war- 
 bles and sitfasts constitute unsoundness? 
 In short the intricate mazes of horse lore 
 would impede the usual march of justice, 
 and in analogy to the admiralty courts it 
 would be necessary to call in the Elder 
 Brethren of the Turf to lend their aid in 
 these lucubrations. 
 
 "In order to sustain the defendant's 
 exception the Court must find that the 
 driving of a blind horse is so notoriously 
 unsafe, and is so universally considered to 
 be improper by all reflecting men, that no 
 man, excepting the most foolhardy and 
 reckless, ever drives or rides behind one; 
 that it is the duty of the owner of a blind 
 
THE SUPREME JUDICIAL COURT 
 
 horse to kill him. Now, so far is this from 
 being the case, that, if the Court has any 
 special knowledge or experience with blind 
 horses, it must be aware that they are quite 
 common; that they are always used by 
 their owners, and frequently it is very 
 difficult to ascertain whether they are 
 blind or not. As is stated by Hunt, C. J., 
 in Davenport v. Ruckman, 37 N. Y. 573, 
 'The blind have means of protection and 
 sources of knowledge of which all are not 
 aware; ' and either on account of the acute- 
 ness of the remaining senses, or because 
 they possess a sixth sense, the blind after 
 some experience seem to travel with as 
 little danger as they who see. And espe- 
 cially is this true of the horse. It is a well- 
 known fact that a blind horse cannot be 
 led or slowly driven against a fence, build- 
 ing or other similar object. In some way 
 he is aware of its presence. He will follow 
 the road almost intuitively and with but 
 slight control on the part of the driver. 
 205 
 
A LAWYER'S RECOLLECTIONS 
 
 Being unable to see any object whicli may 
 suddenly arise in his path, he never shies, 
 stops or turns in his course from fright. 
 In short, a blind horse is, undoubtedly, 
 the safest horse that a man can drive. 
 
 "This Court in the case of Gregory v. 
 Adams, 14 Gray 248, has said, 'There is no 
 limitation or restriction in the use of a 
 public highway to the horses, teams and 
 carriages mentioned in the statute; but 
 all persons may lawfully go and travel 
 upon it with any animal or any vehicle 
 which is suitable for a way appropriated 
 and maintained so as to supply and afford 
 the usual and common accommodation 
 needful to, or required by, the commun- 
 ity.' In that case the Court left to the jury 
 to determine 'whether an elephant con- 
 sidered in reference to the time and place, 
 when and where, and the manner in which 
 he was driven, was an animal suitable and 
 proper to be driven or led upon a public 
 highway.' Having declined to rule that 
 
THE SUPREME JUDICIAL COURT 
 
 an elephant is an improper animal with 
 which to travel upon a highway, it would, 
 indeed, be remarkable as a matter of law 
 to condemn a blind horse. 
 
 "There seems to be a peculiar hesitancy 
 on the part of courts of law to assume that 
 questions relating to horse flesh are so 
 clearly well settled and universally under- 
 stood as to render them subjects of judicial 
 interpretation. This is as it should be. 
 If there is one thing upon which men dis- 
 agree it is upon the nature, characteristics, 
 and qualities of the horse. Whenever 
 courts consider matters which are undoubt- 
 edly within the knowledge of all men, and 
 upon which there can be no difference of 
 opinion, they unhesitatingly assume the 
 responsibility, as, for instance, when the 
 Supreme Court of Montana decided that 
 poker is a game of chance. 
 
 " Herein lies the fallacy of the defendant's 
 case. He reasons in this way, that a blind 
 horse is not a safe horse to drive upon a 
 
 207 
 
A LAWYER'S RECOLLECTIONS 
 
 road whicli is deeply gullied by the rains, 
 and wliich is full of pit-falls; that it is the 
 duty of the plaintiff to provide himself 
 with a horse fit for such a defective road. 
 This, of course, is neither common law 
 nor common sense. Had the road been 
 safe, as it should have been, the horse 
 would have safely passed over. His blind- 
 ness would not have interfered at all with 
 the journey, and the plaintiff is no more 
 at fault in driving him than he would have 
 been in driving a horse that was unable 
 to swim had a bridge been carried away, 
 or a horse that was unskilled in jumping, 
 had there been a log across the street. He 
 is not bound to provide an animal able to 
 grapple with unforseen contingencies, and 
 to save the defendant by its skill and cun- 
 ning from the consequences of the defend- 
 ant's neglect." 
 
 The case of Littlefield v. Fitchburg Rail- 
 road Company, 158 Mass. 1, is amusing. 
 208 
 
THE SUPREME JUDICIAL COURT 
 
 The action was brought to recover dam- 
 ages amounting to forty-four hundred 
 and ten dollars on account of an alleged 
 overcharge of two cents per can upon 
 four hundred and forty-one cans of milk 
 transported by the defendant. The over- 
 charge upon these four hundred and 
 forty-one cans amounted of course to 
 the sum of eight dollars and eighty-two 
 cents for which the plaintiff endeavored 
 to recover as a solatium for his injury the 
 sum of forty-four hundred and ten dollars. 
 The comment of the defendant upon the 
 severity of this penal statute was as 
 follows : 
 
 "It will be perceived at a glance that 
 this is a penal statute, imposing exceed- 
 ingly heavy penalties which are entirely 
 disproportionate to the offence committed. 
 It is doubtful if in the whole code of the 
 criminal laws of this Commonwealth there 
 is a penalty approaching in severity the 
 14 209 
 
A LAWYER'S RECOLLECTIONS 
 
 one now under consideration, in compari- 
 son with the oflfence committed. To refer 
 to the case at bar, as has been already said 
 the person who is injured to the amount 
 of less than ten dollars can recover nearly 
 forty-five hundred dollars on account of 
 such injury. In other words, the legis- 
 lature estimated the offence committed 
 by the defendant as more than twice as 
 great as that of setting up or promoting a 
 lottery, nearly four times as great as that 
 of wilfully or maliciously defiling or cor- 
 rupting the source of drinking water, and 
 one hundred times as great as dispensing 
 poison without recording and labelling the 
 same. A person, if he be reasonably for- 
 tunate, can indulge in the luxury of com- 
 mitting a gross fraud or cheat at the 
 common law nearly a dozen times, with- 
 out incurring so severe a penalty as the 
 plaintiff seeks to impose upon the defend- 
 ant in the case at bar." 
 
 210 
 
THE SUPREME JUDICIAL COURT 
 
 It was further objected by the de- 
 fendant that the Board of Railroad Com- 
 missioners in fixing the price for the 
 transportation of milk had, without au- 
 thority, ordered the defendant to furnish 
 ice for icing the milk in warm weather. 
 Upon that point the defendant, among 
 other objections, urged the following: 
 
 "If the shipper of milk could demand 
 that ice be furnished for the purpose of 
 preserving it, a person could tender any 
 perishable commodity to a common car- 
 rier, and demand that the carrier should 
 not only transport it, but should take 
 artificial means to protect it from injury 
 through its own decomposition or decay. 
 Water must be furnished for live fish and 
 growing plants; the shipper of a dog or 
 horse would require that he should be 
 exercised at frequent intervals; the shipper 
 of firearms that they should be fired fre- 
 quently to prevent them from rusting, 
 211 
 
A LAWYER'S RECOLLECTIONS 
 
 and, for all I know, the mother would com- 
 pel the defendant to transport her nursing 
 infant without its female parent, and pro- 
 vide sustenance during the trip. 
 
 "If the transportation of milk over a 
 long journey causes it to deteriorate from 
 natural decay or decomposition, the car- 
 rier is no more bound to guard against such 
 deterioration than he is bound to guard 
 against an injury to the physical health 
 of the passenger from the weariness or 
 excitement of the trip. The Board of 
 Railroad Commissioners which made this 
 decision, in order to be consistent must 
 have decided, if the case had been before 
 it, that it was the duty of a carrier to 
 furnish a passenger with proper amuse- 
 ment; to protect him from weariness and 
 ennui; to furnish him proper sustenance 
 for body and mind, and upon the same 
 principle, I presume, to furnish him with 
 spiritual sustenance, if necessary, to pre- 
 vent any deterioration in his morals or 
 212 
 
THE SUPREME JUDICIAL COURT 
 
 religion during the journey. In short, 
 there is no end to the ridiculous conclu- 
 sions to which we are led by analogies 
 logically deduced from the decision of the 
 board upon this question." 
 
 Through inadvertence, in the order of 
 the Board of Railroad Commissioners it 
 nowhere appeared that the defendant had 
 been notified of the hearing or was present 
 thereat although, as a question of fact, 
 the hearing was protracted through sev- 
 eral days, and the defendant was notified 
 of the same and appeared by its counsel. 
 
 When I reached this part of the argu- 
 ment I objected to the award on the ground 
 that it did not appear that the defendant 
 was present or had received notice of the 
 hearing. The Chief Justice asked, — "Do 
 you intend to state, Mr. Torrey, that you 
 were not present at this hearing.?" To 
 this question I replied, — "I do not say 
 that I was not present, neither do I admit 
 213 
 
A LAWYER'S RECOLLECTIONS 
 
 that I was. Upon this question the de- 
 fendant's counsel, with all due respect to 
 the court, stands mute." Upon this 
 branch of the case the decision was as 
 follows: 
 
 "From what occurred at the argument, 
 we may suppose that the defendant was 
 before the commissioners; but on a demur- 
 rer we cannot go outside of the record 
 before us. So far as appears, the order was 
 invalid for want of a notice to the 
 defendant." 
 
 As another instance that the practice 
 of the law is not always as dry and un- 
 interesting as it is supposed to be, I insert 
 a copy of a correspondence which took 
 place between Brother Butler and myself 
 in regard to the loss of a cow killed upon 
 the Fitchburg Railroad: 
 
 "Dear Sir: 
 
 The cow is an animal intended by nature 
 to provide man with a most highly valued 
 214 
 
THE SUPREME JUDICIAL COURT 
 
 article of food during its lifetime, and at 
 its death, when properly killed, and the 
 carcass skillfully taken care of and divided, 
 also furnishes an important element for 
 man's sustenance. 
 
 "When, therefore, a railroad company 
 throws its locomotive engine, running at a 
 high rate of speed, recklessly against this 
 unoffending and docile animal, it is a per- 
 version of nature, and as such is highly 
 reprehensible; so that when, on October 
 twelfth of the current year, one of your 
 engines destroyed the life of Bridget 
 Fitzgerald's valuable cow, your company 
 was guilty of the unnatural act aforesaid. 
 This cow cost her, only a few weeks before 
 its decease, the sum of ninety-four dollars, 
 and was worth that amount at that time, 
 and I should be inclined to waive any 
 additional value which might ordinarily 
 be supposed to attach to it because of her 
 ownership thereof. She has informed me 
 of the acts of negligence on the part of 
 215 
 
A LAWYER'S RECOLLECTIONS 
 
 your company upon wliicli slie relies for 
 her case, and is of the opinion, with which 
 I agree, that you are hable to her for the 
 value aforesaid. 
 
 "Of course, acting in this matter as her 
 attorney, any suggestion which I might 
 make would be entirely disinterested, and 
 as such I have no doubt you would treat 
 my advice that you pay the claim promptly. 
 
 "Trusting that the matter may be ad- 
 justed to our mutual satisfaction, I am 
 "Very truly yours, 
 John Haskell Butler." 
 
 Answer of defendant's counsel: 
 
 "Dear Sir: 
 
 Your favor of the ninth inst. is before 
 me. I have no record of any cow belonging 
 to Bridget Fitzgerald having been killed 
 on the twelfth day of October, but I find 
 a statement that on the thirteenth of 
 October an animal of this species, supposed 
 216 
 
THE SUPREME JUDICIAL COURT 
 
 to belong to Margaret Fitzgerald, lost its 
 life at Cambridge. 
 
 "As the date is immaterial, and as 
 Margaret 'under any other name would,' 
 probably, 'smell as sweet,' I shall take 
 no advantage of these discrepancies. 
 
 "I agree with you fully as to the high 
 character of the cow as a domestic animal, 
 and as to the tenderness with which it 
 should be treated, and the caresses which 
 ought to be lavished upon it. If this kind 
 treatment is due, as you allege and as I 
 admit, from a railroad corporation which 
 has no interest in the animal, except the 
 benevolent interest which corporations al- 
 ways take in the property and rights of 
 others, how much more is it incumbent 
 upon the owner of the beast, to whom the 
 Almighty has especially intrusted its care, 
 to discharge that trust with fidelity. 
 
 "The cow, as you are aware, is not only 
 gregarious, but is in the habit, when let 
 loose, of wandering about in pursuit of 
 217 
 
A LAWYER'S RECOLLECTIONS 
 
 food and the gratification of its desires. 
 In a crowded locality like the city of 
 Cambridge this propensity is not unat- 
 tended with danger, and it is the duty of 
 the owner to take all proper means to 
 prevent it. This important duty was 
 entirely neglected by your client Bridget 
 (or Margaret, as the case may be). The 
 cow escaped from the place provided for 
 her in the kitchen of your client or else- 
 where. After aimlessly wandering about, 
 she trespassed upon the tracks of this 
 company, an offense punishable in the 
 case of a human being by fine, and often 
 attended in the case of a cow with more 
 serious consequences, viz. : the loss of life. 
 I understand that under these circum- 
 stances this company is not liable, and I 
 have no doubt you will agree with me. 
 
 "You say that you are inclined to waive 
 any additional value which may be sup- 
 posed to attach to this cow on accoimt of 
 its ownership. 
 
 218 
 
THE SUPREME JUDICIAL COURT 
 "Such liberality is a cause of suspicion, 
 and upon investigation I find that the 
 claim of your client was only eighty-five 
 dollars, showing that in her judgment the 
 cow had depreciated since it had come 
 into her possession, in the sum of nine 
 dollars. Whether this was due to improper 
 care, or to the moral effect of an intimate 
 association with your client, is immaterial. 
 I think if you will inquire into the facts of 
 the case, you will see that I am correct. 
 If not, I should be happy to receive addi- 
 tional information in regard to the matter. 
 "Very truly yours, 
 "George A. Torrey." 
 
 The shortest and most laconic inter- 
 locutory decree in my experience was 
 rendered at a hearing at the old Court 
 House in Boston before one of the former 
 judges of the Supreme Court. The counsel 
 were discussing a doubtful question where 
 
 the authorities were conflicting. No one 
 219 
 
A LAWYER'S RECOLLECTIONS 
 
 was present in the lobby excepting the 
 presiding judge, the two lawyers and the 
 court officer who was old and deaf. After 
 the discussion was ended, his Honor, as 
 was his wont when considering a doubtful 
 question, arose and paced to and fro 
 behind the Judge's desk evidently consid- 
 ering what decision to make. After con- 
 siderable deliberation he looked up and, 
 with a twinkle in his eye, said, — " Gen- 
 tlemen, I'll be d — d if I know how to 
 decide this case." 
 
 My experience in public life was short 
 and uneventful. In 1872 and '73 I was a 
 member of the Massachusetts Senate from 
 the County of Worcester. During the 
 former year I distinguished myself with 
 my fellow senators by enacting a Bill, 
 which was afterwards declared to be un- 
 constitutional by the Supreme Court. 
 This was at an extra session of the Senate, 
 called after the great Boston fire of 1872, 
 in which a Bill was passed authorizing the 
 220 
 
THE SUPREME JUDICIAL COURT 
 
 City of Boston to raise a large amount of 
 money to be loaned to persons who had 
 suffered loss through the fire. This Bill 
 was advocated by many of the citizens of 
 Boston including the leading members of 
 the bar, and there was no intimation by 
 anybody that the Act was unconstitutional. 
 It was passed unanimously, but before the 
 time came when any action could be taken 
 xinder it, the necessity for such charity 
 had ceased, and, in a proceeding brought 
 by certain citizens of Boston, the Supreme 
 Court declared the Act unconstitutional. 
 
 Upon one occasion during my senatorial 
 career the spectacular play called "The 
 Black Crook " had a long run at the Boston 
 Theatre. There was a large ballet troupe 
 connected with the play. One afternoon 
 during the session of the Senate, the at- 
 tention of the senators was called to the 
 gallery which was filled with a delegation 
 of blooming ballet girls from the Boston 
 Theatre troupe. There must have been 
 twenty or thirty of them in great splendor 
 g21 
 
A LAWYER'S RECOLLECTIONS 
 and gorgeous array. By way of a joke, 
 I prepared an order on one of the Senate 
 blanks and sent it up to the presiding 
 officer. It read substantially as follows: 
 " Ordered, — That the business of the 
 Senate be suspended for half an hour in 
 order to receive the distinguished guests 
 now occupying the gallery." The presid- 
 ing officer at that time was Horace H. 
 Coolidge. The page carried the order to 
 the desk, and the President proceeded to 
 introduce it as follows: "The Senator 
 from Worcester, Mr. Torrey, offers an 
 order: Ordered that the business of the 
 Senate be suspended for half an hour — " 
 When he arrived at this point he saw 
 what the order was and, without showing 
 the slightest embarrassment, said, — "the 
 Chair is in error," and laid the order down 
 without any further action, so that the 
 ladies of the ballet were not received with 
 the ceremony usually extended to dis- 
 tinguished guests. 
 
 I recall another amusing incident when. 
 
THE SUPREME JUDICIAL COURT 
 
 after the adjournment of the Senate, some 
 half dozen of the senators were smoking 
 in the Clerk's room and, among others. 
 General James S. Whitney, the father of 
 Henry M. Whitney. I do not know what 
 occasion there was for the invitation but, 
 for some reason, he invited us to dine with 
 him at five o'clock the next afternoon at 
 the Revere House. We therefore came 
 arrayed in our best costumes, dress suits 
 and white ties, to attend the session of 
 the Senate which took place at two o'clock 
 in the afternoon. The business that day 
 being of considerable importance, the ses- 
 sion was prolonged to an undue length. 
 At five o'clock the Senate was still in ses- 
 sion, and we thought this would interfere 
 with the proposed dinner. Some of the 
 invited guests passed the word among the 
 senators that they would consider it a 
 personal favor if the Senate would adjourn. 
 A motion was made to that eflFect, and the 
 Senate immediately adjourned. We re- 
 
A LAWYER'S RECOLLECTIONS 
 
 tired to the dressing room for our coats 
 and hats, but General Whitney could not 
 be found; he had disappeared. We waited 
 for him for some time, but as he still re- 
 mained absent we made inquiries and found 
 that he had started for home, his carriage 
 coming for him as usual, and that he had 
 departed immediately after the adjourn- 
 ment of the Senate. He evidently had 
 forgotten all about his invitation and had 
 unintentionally left us in the lurch. A 
 reporter of one of the morning papers got 
 hold of the story and it appeared in the 
 next issue of his paper. We cut out this 
 notice and left it on General Whitney's 
 desk. At the session of the Senate the 
 next day the General found this para- 
 graph from the newspaper, and for the 
 first time it occurred to him that he had 
 invited us to dine and had forgotten it. 
 He immediately arose to a question of per- 
 sonal privilege. He read the paragraph 
 from the paper and said that as an apology 
 224 
 
THE SUPREME JUDICIAL COURT 
 for his neglect he would invite the entire 
 Senate to dine with him at the Revere 
 House on the ensuing Monday, on which 
 occasion he gave us a magnificent enter- 
 tainment. 
 
 I never held any other public office, with 
 the exception of being a member of the 
 School Committee of Fitchburg and serv- 
 ing one year as field driver. Some of my 
 city readers may not understand the duty 
 of a field driver. Each town annually 
 elected several field drivers whose duty it 
 was to take up stray horses and cattle 
 and drive them to the pound where they 
 were locked up and kept until the owner 
 applied for them and paid the damages 
 and costs. For some reason, it had been 
 the custom for many years in Fitchburg 
 to choose as field drivers each year the 
 prominent men of the town who had been 
 married during the previous year so that 
 the board of field drivers was composed 
 entirely of recent bridegrooms. As a mat- 
 is 225 
 
A LAWYER'S RECOLLECTIONS 
 
 ter of fact, no field driver was ever called 
 upon for any service so that the title was 
 merely honorary, unconnected with duties 
 or emoluments. Having been married in 
 1861, in 1862 I had the honor of serving 
 as field driver with the other recent 
 benedicts. 
 
 I was at one time offered a position on 
 the Superior Court, which I declined. 
 
 When Judge E. Rockwood Hoar was 
 Attorney General for the United States, 
 there was a vacancy in the position of 
 Assistant Attorney General. He wrote 
 to his brother, Hon. George F. Hoar of 
 Worcester, to tender the position to Wal- 
 bridge A. Field, afterwards Chief Justice 
 of the Supreme Judicial Court, and if he 
 declined it to tender it to me. I felt 
 greatly honored by this mark of approval 
 from such an excellent lawyer. As Judge 
 Field accepted, I had no opportunity to 
 either accept or decline the position. 
 
 But it would take too long to enumerate 
 
THE SUPREME JUDICIAL COURT 
 all the public offices which I have not filled. 
 With the exceptions above stated, all of 
 my time has been devoted to the study 
 and practice of my profession, and I have 
 had no desire to abandon it for any other 
 sphere of duty. 
 
 If these random recollections shall serve 
 no other purpose they may, at least, tend 
 to prove that the practice of the law, pos- 
 sibly considered by some as a dry and 
 uninteresting pursuit, is occasionally en- 
 livened by incidents of an amusing char- 
 acter. I can truly state that, however 
 profitless they may have been to others, 
 my services at the bar have been a source 
 of enjoyment to myself, and I have never 
 regretted that I entered the profession. 
 Whether my clients have experienced such 
 a regret, I am unable to state. 
 
 227