USA > Massachusetts > Suffolk County > Boston > The memorial history of Boston : including Suffolk County, Massachusetts. 1630-1880, Vol. IV > Part 74
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1 [This was the British Coffee-house in King royal officers, on the spot where since the Mas- (now State) Street, a place much frequented by sachusetts Bank stood. - ED.]
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out of time into eternity, that it will be by a flash of lightning." It was indeed a fitting end for a brilliant and meteoric genius.1
One other cause occurring in the ante-Revolutionary period deserves mention, and this is the trial of Captain Preston and his soldiers upon a charge of murder for the famous Boston Massacre. It is needless to re- capitulate the details of that well-known occurrence, or to dilate upon the excited state of popular feeling.2 When the accused sought the services of John Adams and of Josiah Quincy, Jr., as counsel, they preferred no ordi- nary request. Adams had been slowly making his way at the Bar for twelve years; Quincy was nine years his junior. Both were well known to be strong friends of the Colonial cause. They might well consider it unfair that they should be called upon to undertake a defence of persons whose very presence on the soil they reprobated, - a defence which, if conducted with due zeal and thoroughness, might destroy their popularity, reputation, and usefulness with their own townspeople, and ruin their business pros- pects. It was supposed to be a shrewd artifice on the part of the culprits, designed at once to help themselves and to injure their defenders ; yet pro- fessional ethics seemed unquestionably to demand that the lawyers should accept the duty, and they both courageously and promptly engaged to do so. One would think, indeed, that both of them had given sufficient proof of ardent attachment to the popular cause to escape misapprehension in this matter; yet it is of record that many patriots, unable to appreciate their motives, were greatly offended with them. A striking letter to Mr. Quincy from his father, together with the just and spirited answer of the son, are preserved in the Memoir of Fosiah Quincy, Junior. The old gentleman wrote : -
" I have been told that you have actually engaged for Captain Preston ; and I have heard the severest reflections made upon the occasion by men who had just before manifested the highest esteem for you, as one destined to be a savior of your country. I must own Jos Quincy to you it has filled the bosom of your aged and infirm parent with anxiety and distress, lest it should not only prove true, but destructive of your reputation and interest ; and, I repeat, I will not believe it unless it be confirmed by your own mouth, or under your own hand."
The letter was signed, -" Your anxious and distressed parent, Josiah Quincy."
In an admirably independent and sound reply to this painful appeal, the young lawyer wrote, condemning the lack of feeling of those who had traduced him unheard to his venerable father: -
" Let such be told, sir, that those criminals, charged with murder, are not yet legally proved guilty, and therefore, however criminal, are entitled by the laws of God and man to all legal counsel and aid ; that my duty as a man obliged me to under- take ; that my duty as a lawyer strengthened the obligation ; that, from abundant
1 [See portrait of Otis, etc., in Vol. III. ch. i .- ED.] 2 See Vol. III. ch. i.
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caution, I at first declined being engaged ; that, after the best advice and most mature deliberation had determined my judgment, I waited on Captain Preston and told him that I would afford him my assistance ; but prior to this, in presence of two of his friends, I made the most explicit declaration to him of my real opinion on the contests (as I expressed it to him) of the times, and that my heart and hand were indissolubly attached to the cause of my country ; and finally, that I refused all engagement until advised and urged to undertake it by an Adams, a Hancock, a Molineux, a Cushing, a Henshaw, a Pemberton, a Warren, a Cooper, and a Phillips. This and much more might be told with great truth ; and I dare affirm that you and the whole people will one day rejoice that I became an advocate for the aforesaid criminals, charged with the murder of our fellow-citizens."
The trial of Captain Preston began Oct. 24, 1770, and was brought to an end on the sixth day thereafter by his acquittal. The trial of the soldiers followed, resulting in the conviction of two of them of manslaughter, and in the acquittal of the remaining six. It is an odd circumstance that SamS. Quincy the prosecution was conducted on behalf of the Crown by Samuel Quincy,1 Solicitor- General, a brother of Josiah Quincy, Jr., who had separated in politics from the rest of his family, and espoused the so-called Loyalist side. The trials were not in themselves especially note- worthy, save for the moral traits which they developed; and in this res- pect they were certainly remarkable. Not only Adams and Quincy, but the jurors also, won high honor by their conduct; and even the people at large, having a little time given them for reflection, so thoroughly appreci- ated the honorable motives which had actuated the reluctant counsel, that they hastened to elect John Adams a representative to the General Court. There is no nobler record in the annals of the country. It seems scarcely credible that after thirty years had elapsed, and John Adams had become President of the United States, an ignoble newspaper writer actually de- scended, in aspersing him as being under " British influence," to cite this trial in proof of his proclivities. Whoever else won honor in this matter, the English captain certainly did not, for he instantly disappeared from the neighborhood without even so much as saying " thank you " to those who had perilled so much and acted so courageously by him. The two con- victed soldiers were branded in the hand by the sheriff, while the tears poured down their cheeks from shame and indignation at what they deemed an unmerited disgrace.
Soon after the trial of this cause, ill-health compelled Mr. Quincy to abandon a profession in which he could not have failed to achieve a bril- liant success, unless, indeed, as is probable, he had been drawn from it into public affairs. He went abroad, in hopes of overcoming certain pulmonary symptoms, but unfortunately failed to do so, and died at sea on his way home, at the early age of thirty-one. John Adams also, during the excit- ing years which led up to the Revolution, found himself constantly more
1 [Some of his letters are appended to Curwen's Journal, edited by Ward. - ED.]
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engrossed by public affairs, which seemed imperiously to demand his energies, and to draw him away from the active practice of his profession. Yet he was still called upon from time to time thereafter to perform services for which his early legal training was supposed peculiarly to fit him. In 1820, when Maine was set off from Massachusetts as a separate State, he was a prominent member of the convention chosen to prepare the new constitution for the latter. He was then well advanced in years, and most of · his coadjutors belonged to the next generation; among them were Joseph Story and Daniel Webster. His son, John Quincy Adams, was also bred to the Bar, and had an office in Boston at various intervals during his long life; but he likewise was absorbed by the rapid succession of public offices which he was called upon to fill, and perhaps for this reason never showed any great measure of legal aptitude. Yet in 1810, being then in Russia, he was tendered by Mr. Madison a seat upon the Bench of the Supreme Court. He wisely declined, for though he would have made a respectable and industrious judge, he would hardly have achieved a higher distinction.
The Revolutionary period, and the unsettled years which closely fol- lowed it, are ornamented by few names of distinction in the law. Francis Dana, - son of Justice Richard Dana, already mentioned, - having been sent as minister to Russia during the war, was afterward made Chief-Justice of Massachusetts. He had the reputation of being an able lawyer and a forcible speaker, and filled a large space in his day and generation. But except in this meagre statement and the tradition which Sullivan preserves for us of his magnificent white corduroy surtout, lined with fur, and his Russian muff, his life and characteristics have passed into oblivion.1 He was, however, the progenitor of an able race, who keep the name famous to our own time. His son, Richard H. Dana, was in his day a writer of some note in the literary circles of Boston; and, in the next generation, Hon. Richard H. Dana, Jr., has been in our own times one of the most distin- guished jurists and eloquent advocates of Massachusetts.2
Not less famous than the name of Dana, in the legal annals of Massa- chusetts, is that of Lowell. The first John Lowell was a prominent ad- viser of the patriot merchants in the days of the war, and won JohnLowell reputation especially in prize causes. Upon the organiza- tion of the United States courts, he was very appropriately selected as the first incumbent upon the Bench of the same District Court upon which his
1 [His portrait, by Brackett, is owned by Richard H. Dana, the second of the name, who prepared a brief memoir of him in 1876, which was printed in the Penn. Mag. of Hist. and Biog., i. 86. He was born June 13, 1743, and bore dis- tinguished service during the Revolution. He returned to Boston from his mission to St. Pe- tersburg in December, 1783, to be made a dele- gate to Congress, which office he again left, in VOL. IV. - 74.
1785, for a seat on the Supreme Bench of Mas- sachusetts, of which he became the chief in November, 1791, a position he resigned in 1800. He died in Cambridge in 1811. One of his daughters married Washington Allston .- ED.]
2 [Descendants of Richard Dana, of Cam- bridge, said to include all of the name, are traced in Memoranda of Some of the Descendants, etc., by the Rev. J. J. Dana, Boston, 1865. - ED.]
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great-grandson has since sat. He remained there until the Federalists passed their bill creating the short-lived Circuit Court, of which Lowell was made the judge; only, however, to be displaced when, in the following year, the vindictive Democrats, coming into power, abolished the tribunal. John Lowell enjoyed a great and deserved reputation equally in respect of , his professional ability and of his high character.1 He had a son, a lawyer of great promise and high public spirit, but whose health was too poor to enable him to achieve the success to which he was entitled. The present judge, now also on the Circuit bench, has succeeded to his ancestor's rare legal faculty, as well as to his public functions. Such striking examples of heredity as are presented in the Dana and Lowell families are certainly rare.
Upon the Bench with Francis Dana was Robert Treat Paine, a hot- tempered, black-eyed gentleman, a good lawyer, and fearless patriot, who 7 Justices France Increase Juma of the kid The Dawes fun) Court had signed the Declar- ation of Independence.2 He fell in easily with the prevailing habits of the Bench in those days,-habits which can hardly be admired, in point of good breed- ing or suavity, since the judges were wont to use their authority in a very harsh and offensive manner. But in 1800 an amelioration was fortunately effected in this regard by the appointment of Theodore Sedgwick as an associate jus- tice. He was a courte- ous gentleman as well Theodom Sedgwick as a good lawyer; and his influence and example worked a reform in the manners of his associates which has continued down to the present day substantially unbroken, save during the reign of Chief-Justice Parsons.
The men who were coming forward at the Bar during the latter years of the eighteenth century have left behind them names deservedly famous.3
1 [Judge Lowell bought, in 1785, an estate in Roxbury, which he made his residence after he had retired from active duties, and of which there is an account in Drake's Town of Rox- bury, 394. - ED.]
2 [Robert Treat Paine lived on the west cor- ner of Milk and Federal streets, in a large gam- brel-roofed house, with gardens in the rear. He died here May 11, 1814. - ED.]
8 [Fisher Ames thus characterizes them in 1802 (Works, i. 300) : " Parsons stands first ; but
he is grown older, less industrious, and wealth or the hypo may stop his practice. Otis is eager in the chase of fame and wealth, and, with a great deal of eloquence, is really a good lawyer, and improving. . . . Dexter is very able, and will be an Ajax at the bar as long as he stays. You know [addressed to Gore] that his aversion to reading and to practice are avowed. Sullivan, who seems inmortal, is admonished of his decay by a fit every three months. . . . I know of no very dashing young men coming forward."- ED.]
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They were a brilliant and able coterie. There were Christopher Gore, Sam- uel Dexter,-the father of Franklin Dexter, who was only less able than his great progenitor, - Harrison Gray Otis, Benjamin Austin, James Sullivan, and Samuel Sewall. It is melancholy to find how little knowledge remains concerning any of these men beyond the naked fact of a great reputation. No name is more familiar in Boston than that of Harrison Gray Otis, and yet except for the tradition of his silvery voice, his graceful elocution, and persuasive oratory, how little is there to be learned about his life and doings ! He was a nephew of the famous James Otis, and was scarcely less promi- nent in public affairs. In the stirring times of 1812, and thereabout, he was the favorite speaker in Faneuil Hall, which was always crowded when he was to be heard.1
Benjamin Austin was, during his life, esteemed as a lawyer much more highly than any persons, save antiquarians, are now aware. Indeed, it is probable that he would to-day be altogether forgotten, were it not for the unfortunate celebrity which he acquired in connection with one of the most noted trials which have ever occurred in Boston. In the middle of the day, on Aug. 4, 1806, his son was shot dead by Thomas O. Selfridge in State Street. The act created the greatest excitement. It was at a period when party feeling was running very high, and there had been a quarrel grow- ing out of political hostility between Mr. Austin, Sr., and Mr. Selfridge. On the Fourth of July in that year the Republicans of Boston had gotten up a procession, and a grand banquet in a tent on Copp's Hill. The pres- ence of the Tunisian Ambassador caused such a rush of the curious pop- ulace into the tent that the ticket-taker could not do his duty; the receipts fell short, and the landlord of the Jefferson Tavern,2 who had been caterer for the feast, was paid by the committee only so much as they had col- lected. He employed Selfridge to enforce payment of the balance by suit against the committee as individuals. Austin, who was at the head of the committee, being one day rallied in an insurance office about the suit, re- plied that it had been instigated by the Federal lawyer who brought it. Afterward, upon proof that he was in error in his statement, he retracted it, though not in a sufficiently public manner to satisfy Mr. Selfridge, who forthwith published him in the Gazette as a coward, a liar, and a scoundrel. Austin also published a counter-statement. Charles Austin, the young man who was killed, was a student in Harvard College, eighteen years of age. Upon the trial of Selfridge the defence was, that young Austin had es- poused his father's side in the controversy, and that he had meditated in- flicting chastisement upon Selfridge; that accordingly, as he saw Selfridge crossing State Street, he himself advanced rapidly and threateningly from
1 [Of the eloquence of Harrison Gray Otis, see the Memoir of Theophilus Parsons, p. 183. His law office at one time was in the building now (1881) standing on the lower corner of Court and Tremont streets, where later Daniel Webster had an office. - ED.]
2 [This noted resort stood on the present Salem Street, and was for some time the head- quarters of the Republicans. There is a note on the origin of it in Amory's James Sullivan, ii. 163.]
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the side-walk towards Selfridge, armed with a heavy cane, and began strik- ing at Selfridge's head; that Selfridge, thus assailed, and being a man of feeble physique and quite unable to defend himself by force, drew his pis- tol and shot his assailant dead. The case was tried before Judge Parker; James Sullivan, Attorney-General, and Daniel Davis, Solicitor-General, ap- peared for the prosecution. Samuel Dexter, Christopher Gore, Harrison Gray Otis, and Charles Jackson were for the defence. The case was admirably tried, as can be learned from a full report of it, which fortu- nately still exists. There was less petty technical squabbling over unim- portant points than is customary in our own time, but every particle of evidence was clearly brought out; the counsel made arguments which it would be difficult for any lawyer of our day to improve upon, and no jury ever had a man's life or liberty in their hands with better opportunity for meting out strict justice. The verdict was "not guilty." How far it may have been affected by the political predilections of the jurors it is hard to say. It was well understood at the time that the case took on a strong political complexion, and it is hardly to be supposed that a panel of sound Jeffersonians would have been brought to this conclusion even by the eloquence of Gore and Dexter. Certainly these gentlemen did their best for their fellow-laborer in the Federalist vineyard, and greatly distinguished themselves.1
Samuel Dexter has left a great name. He was a gentleman of varied and liberal acquirements, and very distinguished as a lawyer. Mr. Justice Story, before whom he practised, was wont to speak of him in terms of the highest praise, ranking him indeed as inferior to William Pinkney, - the leader, in Story's estimation, among all the counsel who practised at the Bar of the Supreme Court of the United States, - but second to none else. From the judge's description of the two men, it may be doubted whether the taste of the present day would not cause his preference to be reversed. Pinkney had a fiery, impetuous style of oratory, which seemed to lift his auditors from their feet, and bear them along whithersoever the flood of his eloquence was di- rected; but Dexter was more even, tranquil, and dispassionate, seeking to convince his hearers, not overwhelming their cool reason, but rather leaving it free for the better comprehension of his lucid argument. He was not, however, devoid of the faculty of passionate oratory, and upon the rare occasions when he was excited to it the effect is said to have been very great. Yet all this is only tradition ; scarcely anything of his has been pre- served, excepting a eulogy which he delivered upon Fisher Ames. His greatest effort was before the Supreme Court of the United States, made at the time when the merchants of Boston, ruined by the Embargo, undertook to establish the unconstitutionality of the law. Mr. Dexter appeared on
1 Thomas Handasyd Perkins was foreman of the grand jury which found the indictment, and Paul Revere was foreman of the petit jury which rendered the verdict. Portraits of both are given elsewhere in this History. [The newspapers of
the day, and a separate publication, contained the report of this trial, the indictment being for manslaughter, - not for murder. See also Par- son's Memoir of Theophilus Parsons, 250; Am- ory's James Sullivan, ii. 167 .- ED.]
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their behalf; and though he lost his case, - which indeed was intrinsically hopeless, - yet he reaped great honor from his conduct of it. It is a mis-
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6.GOR!
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fortune for history no less than for law in the United States, that not even an outline of his profound and able argument in a cause of such weighty
+ [This cut follows a likeness painted by J. Trumbull, and given in 1838 to Harvard College by Wm. E. Payne, a nephew of Gore, and now hanging in Memorial Hall. The descent of Gov-
ernor Gore is traced by Wm. H. Whitmore, in his Geneaology of the Payne and Gore Families, printed in the Mass. His. Soc. Proc., 1875, and also as a publication of the Prince Society. - ED.]
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public import is extant. For a time Mr. Dexter was much in public life ; beginning in the State Legislature he went thence to Congress, and was both in the House of Representatives and in the Senate. In the adminis- tration of John Adams he was first Secretary of War, and then Secretary of the Treasury. But with the advent of Jefferson he retired from public life, and thereafter devoted himself exclusively to the law. He died untimely in his fifty-fifth year, May 4, 1816, from an acute difficulty in the throat. Dexter during most of his life was, as became a gentleman of his position in Boston in those days, a stanch Federalist; but in his later years his opinions upon the questions resulting in the war of 1812 induced him to abandon the party and join the Republicans, greatly to the regret of his friends.1
Dexter's compeer, friend, and rival was Christopher Gore, who was even more largely engaged in public life. For eight years he remained in England as Commissioner on behalf of the United States, busied with the settlement of claims for British spoliations under Jay's treaty ; upon his return he was three years in the State Senate. In 1809 he was elected Governor, and in 1814 he was chosen United States Senator from Massachusetts. Amid such numerous and exacting public functions, it is surprising that he could find time to attend much to the practice of the law. Yet it is certain that so long as he lived he was considered to stand high in the first rank of his profession. He was the first United States Attorney for the District of Massachusetts. In private practice his specialty was commercial law, of which he was a master; but his speech in the Selfridge case shows that he might have excelled also in the more showy and oratorical departments, had he been so minded. Except this, it may be said that absolutely nothing remains to show what he could do. He was a high-bred, courtly gentleman of the old school. His habits and appearance partook largely of that aristocratic element which then distinguished the prominent Federalists throughout the country, and nowhere to a greater degree than in Boston. He had a magnificent house at Waltham, in the neighborhood of Boston, with marble floors, a deer-park, and like expensive and luxurious appoint- ments. He drove in a coach-and-four, with outriders in livery. Indeed it is said that the loss of his election to a second term of the governorship was largely due to these over-gorgeous habits. He had an ample fortune, a liberal portion of which he bequeathed to Harvard College. Gore Hall, used for the library, was built with this fund, and named for him.
For many years about this same period James Sullivan filled a large space before the eyes not only of the people of Boston,2 but of the whole
1 [We much need a life of Dexter. A little volume, consisting of some friendly recollections, communicated to the Boston Evening Transcript by Lucius Manlius Sargent, his law pupil, and afterward printed separately as Reminiscences of Samuel Dexter, 1857, is the chief record we have. To this should be added an essay by Judge Story in his Miscellaneous Writings, and a glance here
and there in the biographies of his contempora- ries. He lived in the Beacon Street side of the house on the corner of Beacon and Park streets. - ED].
2 [In the autumn of 1782 James Sullivan moved to Boston, and occupied a house on Bow- doin Square. In the first chapter of the second volume of his Life, by T. C. Amory, we have an
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Commonwealth. Of Irish descent, he had the courage, activity, eloquence, and hospitality which distinguish the best of that race. He was born in Berwick, Maine, April 22, 1744, the fourth son in a numerous family, many of whom acquired distinction in public life. An accident which befell him in early years, in cutting down a tree, rendered him lame and prevented his entering the army, as he had intended. He was able, however, as a civ- ilian - once also in a military way-to render essential service during the Revolutionary war. At the time of the adoption of the State Constitu- tion in 1780, Sullivan was on the Bench of the Supreme Court with Cushing, Sargent, and Sewall. But in 1782, out of regard to the general poverty, the Legislature established his salary at only £300, and reduced him to the necessity of resigning. For several years, he said, he had received from the Government barely enough to pay his travelling expenses upon circuit. He had, however, as he frankly acknowledged, a strong fancy for a public career, and the intervals when he was not filling some office of public trust and service were few and brief. It is seldom that we encounter the record of a busier life ; he was not only a lawyer in large practice, but a writer and a man of affairs both in business and in politics. He was a member of the Provincial Congress in 1775, and again a delegate from Massachusetts in 1783 ; a judge, at different times, of the Admiralty, Probate, Superior, and Supreme Courts ; a representative in the State Legislature ; a member of the Executive Council; a member of sundry public commissions ; for seventeen years attorney-general, for two years governor, and finally a member of all sorts of societies, quasi-public and private, notably of the Massachusetts His- torical Society, of which he was one of the founders, and for many years the president, until displaced by political opponents.1 He was the promoter of the famous Middlesex Canal, and by his energy carried that great labor to a successful consummation. He was engaged in many other business undertakings. He wrote law books, - especially his learned work on land titles, - and some able political tracts. He was also a constant and liberal contributor to the newspapers, in all the numerous and exacting political and personal controversies of the times, following the fashion of the public men of that day in using this channel to reach the people and influence popular opinion. Add to all this the exactions of a large private profes- sional practice, and the time devoted to social intercourse with an unusually numerous circle of friends, -for he was a very popular man, -and it is evi- dent that Governor Sullivan could have had few idle moments. When, in 1790, he was made attorney-general, he insisted that a salary should be annexed to the office in place of the previous system of payment by fees. The change was to his own pecuniary disadvantage; but he was resolved that his emoluments should not be dependent upon the number of prosecu- tions which he could institute or carry through. This was of a piece with the upright and just temper which marked him throughout life. The Self-
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