History of Worcester County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I, Part 10

Author: Hurd, D. Hamilton (Duane Hamilton)
Publication date: 1889
Publisher: Philadelphia : J.W. Lewis & Co.
Number of Pages: 1576

USA > Massachusetts > Worcester County > History of Worcester County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I > Part 10

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The young man was CHARLES ALLEN, then in his twenty-first year. His father, Joseph Allen, was clerk of the courts for this county for thirty-three years, succeeding the elder Levi Lincoln in that ca-

pacity. He was a fine scholar, and a gentleman of that refined and elegant school of manners often spoken of as old, but by no means obsolete at the present day. Charles Allen was born in Worcester in 1797. Three generations back he counted as his ancestor a sister of Samuel Adams, and the stead- fast independence of that old patriot was clearly re- flected in his kinsman of the later day. After pre- paring for college at Leicester Academy he entered Yale when only fourteen. There he remained only a year, severing his connection for reasons that were said by his pastor to reveal "the delicateness of his sensibility, but reflected no dishonor upon him." Immediately he entered the office of Mr. Burnside, then in full practice, and so diligently improved his youthful powers as to meet the examination in 1817 with the result described.

For six years he practiced in New Braintree, and a discriminating eulogist says : " When, some twenty- five or thirty years later, I commenced practice in the same community, the reputation he had won there, in those early years, was still spoken of with ad- miration and pride by those who had been the clients and friends of the young lawyer, and who had fol- lowed him through all his subsequent and more con- spicuous public career." In 1824 he removed to Worcester, and became associated with John Davis, who, though ten years his senior, had been but two years longer at the bar. He was not a case lawyer nor a reader of many books. Thoroughly well grounded in leading principles, it was his habit to think out his line of reasoning while pacing his of- fice or walking in the open air. It was said that the definitions of Blackstone were impressed upon his memory almost verbatim, and although he gave to every case most careful preparation, it was rather a process of reflection and logical deduction from es- tablished premises than a resort to the writings or decisions of jurists who had preceded him. His great power lay iu cross-examination. In the use of this most dangerous weapon, more fatal to the un- skillful wielder than all the armory of his opponent, he was an adept whose superior, by the testimony of living witnesses, most competent to judge, has not arisen in this Commonwealth from his time to the present. Terrihle is the word used by one to describe his treatment of a witness whom he believed to be testifying to an untruth, and with merciless direct- ness question would follow question till the best fab- ricated story was exposed. He realized, too, the danger of attempting too much with an adverse wit- ness, and never committed the mistake of strength- ening the direct testimony of his opponent by per- mitting its repetition in reply to cross-questioning. His general rule was never to examine an adverse witness ; the exception he chose carefully and for sufficient reasons. His intellectual processes were rapid, and all his faculties and stores of knowledge ready at any moment for their best service. With a

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remarkable mastery of the rules of evidence, he was able, in the course of trials, as questions arose, to take up his position and defend it by cogent argu- ment upon the instant.

His public services included four years in the lower and three in the upper branch of the State Legislature and four years as a Representative in Congress. In 1848 he was a delegate to the Whig National Convention. The representatives of Massachusetts voted steadily for Daniel Webster, but the leading candidates were Clay and Taylor. Mr. Allen, though up to that time acting with the Whig party, was a stern Abolitionist in faith and word. Hating slavery as a sin, and convinced that the nomination of General Taylor was a truckling to the power of the slaveholders, up- on the announcement of the vote, he arose in his place, denounced the act in incisive language, and left the hall and the party, to go home and earnestly engage in the formation of the Free-Soil party.

In 1853 he was a member of the convention called to revise our State Constitution, and there his coun- sels were sought by the leading lawyers of the State who were found in that body.

But as Jndge Allen he was best known and is still remembered in this community. His first judicial appointment was to the Court of Common Pleas in 1842. Two years later he, with most of his associates, resigned, in consequence of a legislative spasm of economy, which reduced their already modest sala- ries. In 1858 he was appointed chief justice of the Superior Court for Suffolk County, and in the follow- ing year was fitly chosen to preside over the newly- commissioned Superior Court of the Commonwealth, which was substituted for the old Court of Common Pleas. On this bench he remained until failing powers induced his resignation in 1867, two years before his death. Twice he was offered promotion to the Supreme Court, and again on the retirement of Chief Justice Shaw, but he preferred to remain where he was. His physical health was not robust, and he hesitated to assume duties that to him might be more laborious. He was admirably fitted to pre- side at nisi prius trials, where the quick grasp of the facts, as they are for the first time presented, the ability readily to conceive and apply the rules of evidence and facility in clear, impromptu statement of the law for the guidance of the jury, are essentials. He was never fond of the patient reading and writing necessary to the preparation of the elaborate opin- ions of the Supreme Court. One of his friends and admirers says of him that he was an indolent man, never making more than just the absolutely neces- sary exertion for his purpose, and ever ready to post- pone, if possible, the undertaking of new effort. His own explanation of this apparent sloth is found in a remark to Judge Foster: " Few know how much phys- ical weakness I have had to contend with through life, and how much has been attributed to indoleuce in me, that was caused by the necessity of nursing

my health." He possessed, however, an energy of will that roused his latent powers to a height com- mensurate with any obstacle, as opponents learned to know full well.

Judge Allen was not a scholar. His reading was confined in its scope, yet his mind seemed to broaden and deepen by its own innate law of growth. The concurrent testimony of those who knew him well, with singular unanimity, dwells upon his intel- lectual strength. "I think . . . for force of intellect he was above any man whom I have known in this commonweath ;" " No one who has ever lived in this community was his equal in pure intellectual power ;" "He never called any man his intellectual master ;" "Among intellectual masters ranked with the very first, not second to Daniel Webster himself," are the expressions of four lawyers, who have had opportu- nity to form correct opinions of the man.

Though reserved and dignified in manner and little apt to display his feelings, he showed to his chosen friends a kindly nature, ready to share in social inter- course or extend the hospitable hand. Conscientious, independent, reverent of the religious truths in which he firmly believed, fearing his own disapproval and else no mortal man, his was a proud position-as of that

Promontory of rock That, compassed round with turbulent sound, In middle-ocean meets the surging shock, Tempest buffeted, citadel crowned.

Mr. Allen's most formidable antagonist before the jury for many years was PLINY MERRICK, the son of the gentleman of the same name, of whom we have spoken. He was born in Brookfield in 1794, and graduated from Harvard in the class with the historian Prescott in 1814. He had the advantage of studying his profession in the office of Levi Lincoln, then just entering upon his political career in the State Legis- lature and in the midst of active practice. After his admission to the bar in 1817, Mr. Merrick made sev- eral attempts at settlement before adopting Worcester as his home. For four years he practiced in Taunton, and for a portion of that time was a partner of Gov- ernor Morton. In 1824 he returned to Worcester to undertake the duties of prosecuting attorney for the county. In this capacity he acted until the division of the State into districts under an act of 1832. Governor Lincoln therenpon appointed his former pupil attorney for the Middle District, which con- sisted of Worcester and Norfolk Counties, and he held the office until his promotion to the bench in 1843.

During these nearly twenty years of service in conducting cases for the government in the criminal courts his general practice was continually increas- ing. He was on several occasions called into the courts of Vermont, New Hampshire and Rhode Isl- and, where his reputation had become known and valued.

His arguments are spoken of as masterpieces of

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rhetorical skill. His command of language was un- surpassed by any of his cotemporaries, and his elo- quent perorations are still vividly impressed on the recollections of some who have listened to them. With a keen wit and great quickness of apprehension he united an impulsiveness of temperament which sometimes hurried him beyond the positions which he had intended to maintain, but his readiness and his good humor never failed him in these emergencies. Judge Washburn says of him that " it was sometimes diffi- cult for an antagonist to determine whether he was the most effectually subdued by his adroitness or his courtesy."

One of the most conspicuous trials in which he was engaged was that of Professor Webster for the murder of Dr. Parkman. His defence of the prisoner, though somewhat criticised at the time, is now admitted to have been well conducted and a good struggle in a hopeless cause.

In 1843 Mr. Merrick was appointed a judge of the Court of Common Pleas, and held the office until 1848, when he resigned and undertook the presidency of the Worcester and Nashua Railroad. In 1850 he returned to the bench, and after three years was pro- moted to the Supreme Judicial Court. It was appre- hended by many of his associates that the brilliant rhetoric, keen wit and swift mental processes which had formed great part of his strength at the bar would unfit him for the duties of the judge, who must often " halt between two opinions," till he is possessed of all that can be said on either side.

But as a nisi prius judge he exibited a most accu- rate knowledge of the rules of practice and evidence, which facilitated the progress of trials by avoiding the necessity of long arguments as objections were raised. He was quite apt to form a decided opinion on the merits of the case, and in his charge to the jury to make that opinion manifest with a distinc- ness that the judge of to-day would consider excep- tionable.

The present theory is that the presiding judge is to be absolutely without sympathies and without opinions on the right or wrong of the controversy, but to state to the jury the rules of law which shall govern them, in any conceivable aspect of the facts, which may impress them as the true one. To so austere a view of the functions of the judge Mr. Merrick was never able to conform himself. His statements of complicated series of facts were always clear and of assistance to a proper understanding of their relative value, but often of their value in the mind of the judge. In the reports of decisions of the Supreme Court, his opinions, especially upon the criminal law of Massachusetts, are held in high re- spect. For ten years his services became more and more valuable, and he was recognized as a worthy associate of Lemuel Shaw, our great chief justice. He was an energetic worker and ready to assume even more than his share of the labors of the bench.

In 1856 he removed to Boston, and there resided till his death, in 1867. The last three years of his life were spent in retirement occasioned by disease. Paralysis had suspended the use of some of his limbs. But through it all he sustained his cheerful disposi- tion and powerful will. When his right hand was disabled, he learned to write with his left. Pre- vented from going abroad, he found in the converse of friends at home the means of keeping his mental faculties in active use.

Mr. Merrick belonged to the political party which was in the minority in this State, and held few elec- tive offices. He served iu both hranches of the State Legislature at intervals; but, aside from that, his whole attention was devoted to his profession.

JOSEPH THAYER was an example, of which the law does not furnish many, of a lawyer who, without inherited property or remarkable legal attainments, acquired, in the course of an honorable and useful career, a handsome competence. He was born in Douglas in 1792, graduated at Brown University in 1815, and after studying in the offices of Levi Lin- coln and of Bezaleel Taft, of Uxbridge, he began practice in that town. Without great learning in the law, he possessed good practical judgment, on which he was accustomed to rely, and which others soon learned to respect. His perception of the real gist of a controversy was seldom at fault, though generally arrived at without the aid of labored rea- soning. In financial matters his judgment was re- markably accurate. He became interested in a large number of business enterprises in his community. Both the Blackstone Canal and its successor, the Providence and Worcester Railroad, received, in their inception and progress, his encouragement and assistance.

His townsmen found in him one ready to use his capital in sustaining those under temporary embar- rassment, and to risk something rather than see his neighbors go to the wall. He accordingly received and retained their confidence, and was honored by elections to various positions of trust. His political services outside of Uxbridge were in the Constitu- tional Convention of 1853, to which he was chosen a delegate by general consent, and in the Legislature of the State. He rounded out nearly four-score years of honored and useful life, and died at the residence of Judge Chapin, his son-in-law, in 1872.

It is proper to mention among the prominent men who have beeu members of this bar, one whose life was spent in other than professional pursuits, but who always felt a pride in his connection with the law, and who so well fulfilled the duties of his sta- tion that the bar may well be proud to number him among their honored dead.

STEPHEN SALISBURY, the son of a Worcester mer- chant bearing the same name, was born in 1798. His father bad been successful in establishing in the small town an extensive business and a home where

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a refined and generous hospitality was exercised. From the influence of the latter the son went out to Leicester Academy and Harvard College, where he graduated in 1817, carrying with him everywhere the evidence of that home culture in his dignified courtesy and unswerving integrity. He studied law with Samnel Burnside, and was admitted to the bar, though he had no need and probably no intention of making professional labors his life-work. For seve- ral years he assisted in the care of his father's prop- erty, and in 1829, when he became its sole owner by inheritance, he assumed the duties which he felt that the possession of wealth devolved upon him, with an earnest desire to conscientiously discharge every re- sponsibility. Absolved from the necessity of any labor if he had so chosen, he was one of the most industrious of men. A diligent student, he made himself familiar not only with classic authors, which were perhaps his favorite recreation, but with a great variety of lines of scientific and literary research. For thirty years he presided over the American An- tiquarian Society, and frequently contributed from his pen to the publications of that body. His wisdom was sought for in the conduct of financial, charitable and scientific institutions, and to whatever duties he assumed he applied the same conscientions attention. His constant endeavor was to faithfully perform that which he felt it right to undertake. The Polytechnic Institute located in Worcester was a pecu- liar object of his bounty and his care. As president of its Board of Trustees he was unfailing in his atten- tion to its interests. Till the latest period of his life he was constantly growing in mental breadth, and did not allow age or even later infirmity to repress his eager interest in intellectual pursuits. Elsewhere in these volumes his deeds will more fitly be described, but as he always wished to be counted with the law- yers when they gathered for any occasion of general interest, so we cannot omit to claim some share in his good fame whose training as a law-student minst have aided in making him what he was.

For the facts contained in most of the earlier sketches in this chapter the writer is principally indebted to the scholarly address delivered by JOSEPH WILLARD before the bar of the county in 1829. He was then but a little over thirty years of age, but the address is characterized by thorough investigation, by philosophical reflection and by inspiring views of the nobility of the profession which he represented. His father was president of Harvard College, and from a line of ancestors he inherited a scholar's love for the classics and for literary and historical investigation. Born in Cambridge in 1798, he graduated in his nine- teenth year, and at once began the study of law in Amherst, New Hampshire. At this time he formed the acquaintance of John Farmer, a zealous antiqua- . rian scholar, whose friendship and advice no doubt gave a bent to the tastes of the young man towards similar studies. After completing his professional

studies in the Cambridge Law-School, he began prac- tice first in Waltham, and in 1821 in Lancaster. There for ten years he gave attention to business with considerable success. He conld not forego liter- ary work, however, and was one of the writers for the Worcester Magazine, a periodical devoted to historical and literary topics, especially those of a local charac- ter. His most elaborate work, which appeared in those pages, was a history of the town of Lancaster, which exhibits his habits of careful and minute investigation and his excellent taste and judgment in the selection of his material.

In 1830 he married a Boston lady, and soon after- wards removed to that city, continuing to practice until 1840. In that year he was appointed, by Gov- ernor Everett, clerk of the Court of Common Pleas for Suffolk County. This office, through the changes of the style of the court, and after the clerkship be- came an elective position, he held till a short time before his death. With its duties he made himself thoroughly conversant. On the great multiplicity of questions of practice constantly arising, his opinion came to be regarded as almost equal to a Supreme Court decision. His methodical habits kept the large accumulation of papers and records in perfect order and available for instant reference, and he seems to have transmitted to his son the same capacity for the successful administration of that difficult position.

He found in retirement from practice more leisure for his favorite historical studies. The Proceedings of the American Antiquarian Society and the Massa- chusetts Historical Society, of both of which learned bodies he was an active member, are enriched by his papers on a variety of topics. A work upon which he was engaged at the time of his death was a life of General Knox. The manuscript materials entrusted to him were in a chaotic state, and the labor of ar- ranging the letters and documents taxed his powers for a long time. He became intensely interested in the work, and after his strength was insufficient for any other exertion he insisted on the attempt to go on with this labor of love. But it was not permitted him to complete the task. In 1865 he died, amid the closing scenes of the conflict of arms which had aroused his fervent patriotism and in which had been sacrificed the life of his eldest son.

Mr. Willard had early connected himself with the Free-Soil party. His conscience deeply felt the sin of slave-holding, and he welcomed the war as the means of deliverance from that burden. A letter which he wrote to an English friend, in reply to some hostile criticisms of the English press, was widely circulated and largely instrumental in inform- ing public opinion in England on the true merits of the Northern position.

Twenty-seven years after Mr. Willard's historical. sketch of our bar from its beginning, the tale was taken up and carried on in graceful diction, with ad- mirable skill, by EMORY WASHBURN, a cotemporary

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and literary associate of Mr. Willard. From this address are borrowed many of the details that have appeared in these pages. Its author was born in Lei- cester in 1800, and prepared for college in that admir- able school, which has been the chief glory of the town. His father died in the lad's seventh year, leaving him to the care of his mother, to whom, through her life, he manifested a most devoted at- tachment, and of his pastor, Dr. Moore. This gen- tleman was called to a professorship in Dartmouth College, and took with him his protégé, then only thirteen years old. In 1815 Professor Moore became president of Williams College, and thither Mr. Wash- burn followed his fortunes, and there graduated in 1817. His experience in small colleges made him a firm believer in the superior advantage of the more intimate association of pupils with instructors there possible. He was always a stanch and useful friend of his alma mater. Part of his professional studies were pursued in the office of Judge Dewey in Wil- liamstown, and for a year he attended the Harvard Law School. Soon after his admission, in 1821, he opened an office in Leicester, where he remained for seven years. During this period he served his town as clerk and as Representative in the General Court. Becoming interested with the founders of the Wor- cester Magazine in preserving the memorials of the past life of this vicinity, he wrote with great fidelity and published in various numbers of that periodical a history of Leicester and of its academy. In 1828 his mother died, and the chief tie which bound him to the village having thus been broken, he removed to Worcester. That town then had a population of some four thousand, but among them was Lincoln, the Governor of the State; John Davis, dividing his time between the duties of a member of Congress and a lawyer in active practice ; Charles Allen and Sam- uel Burnside.

Mr. Washburn's clients followed him from Leices- ter and he soon attracted others. In 1831 he formed a partnership with John Davis, succeeding Mr. Allen in that relation. His faculty of making every man who came to him for advice feel that he had found a personal friend, that his cause was in the hands of one who had not only the ability but the sympathetic interest to make the most of it, secured to Mr. Wash- burn in a remarkable degree the affectionate adher- ence of hosts of clients. His industry was incessant and untiring, and his success proportionate. Gov- ernor Bullock says of him, " His leading competitors at the bar were clearer in statement, more incisive in their arguments. Governor Washburn was never a rhetorician. I perceived, however, that there was a moral power of confidence behind him which was equal to the power of eloquence." "His great source of influence over juries was the kindliness, the genuineness of his nature." Juries believed in the honesty of the man. He was able so thoroughly to identify himself with his client's view of the facts, as

to impress others with the sincerity of his own con- viction of its truth.

In 1838 he was again a member of the House of Representatives, and presented and ably supported the first report in favor of a railroad from Boston to Albany. In 1841 and 1842 he was chairman of the Judiciary Committee of the Senate. For three years he assumed the duties of a nisi prius judge in the Court of Common Pleas, and for two years more re- sided in Lowell as the agent of a manufacturing cor- poration, but the practice of the law in the county where he was best known and best beloved was his real vocation, and to it he returned with added zeal and undiminished success.

One of the large number of tasks in which he found pleasure and recreation, in the midst of his most ex- acting professional cares, was the preparation of the "Judicial History of Massachusetts " down to Revo- lutionary times, a work involving a vast amount of research and containing most valuable information for the student of the growth of our modes of legal procedure.

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History of Worcester County, Massachusetts : with biographical sketches of many of its pioneers and prominent men, Vol. I, Part 10

Author: Hurd, D. Hamilton (Duane Hamilton) Publication date: 1889 Publisher: Philadelphia : J.W. Lewis & Co. Number of Pages: 1576

Author: Hurd, D. Hamilton (Duane Hamilton)
Publication date: 1889
Publisher: Philadelphia : J.W. Lewis & Co.
Number of Pages: 1576