Memoir of the Hon. William Whiting, LL. D.

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WILLIAM WHITING.

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MEMOIR

OF THE

HON. WILLIAM WHITING, LL.D.

Reprinted from the Historical and Genealogical

Register for JuLf , 1874.

BOSTON:
FOR PRIVATE DISTRIBUTION.

1874.

UA ) ^ U V4-, I?

HARVARD COLLEGE LIBRARY

FROM

THE BEQUEST OF

EVIRT JANSEN HINBftU

lilS

FIFTY COPIES.

Press of Datid Clapp & Son,
334 Washington Street.

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MEMOm OF WILLIAM WHITING.

* • T)n'ILLIAM WHITING was bora in Concord, March 3, 1813.

He was a descendant from the Rev. Samuel Whiting, D.D.,
an eminent non-conformist minister in his day, who came to this
country in 1636, from Lincolnshire, England, where he was bom,
and was in early life settled first as rector of Lynn Regis, and after-
ward as rector of the parish at Skirbeck, near Boston. The old
church in which he ministered at Skirbeck is said to be still standing,

( surrounded by the graves of his long-departed parishioners. Late

in the year of his coming to Massachusetts (November, 1636), Mr.
Whiting became the minister of the first church in Lynn,* and re-
mained in that relation till 1679, when he died, universally lamented
and honored, at the age of eighty-two years. He was one of the
great lights of his time, and his descendants for seven generations,
in many branches of useful and honorable service, have well pre-
served the traditions of his family.

Nor should we omit in this connection honorable mention of his
wife, Elizabeth St. John Whiting, daughter of Sir Oliver St. John,

* " Y« towne was called Lfn, in compliment to Mr. Whiting, who came here from Lin
(Lynn Regis) in old Norfolke. Before, wee were called Saugust, wch wee did not mch
like, some nicknameing vs Sawdust. Most thot y« name a good one, tho some woald have
it yt it was too short. But to puch wee said, then spell it Lynne. Y® change was made
fortie yeare and more agone [1637] and none now find fault." — Journal of Obadiah Turner ,
pp. 86-88.

Knt., and sister of Oliver, Lord Chief Justice of the Common Pleas
of England. She is described as remarkable for beauty, dignity, a
commanding presence, and endowed with an education which in those
days was rare among women. Even in her old age, and under mar-
vellously changed circumstances, she did not lose her youthful fond-
ness for the great poets of England, Chaucer, Spencer, Shakspeare,
and others, with whose works her husband's library at Lynn was
stored. Though brought up in affluence, and connected by many
ties with the lords of the realm, she early fell into sympathy with
those who questioned the king's prerogatives, and who were soon to
become the lords of the Commonwealth. When her husband's
thoughts were turned toward New-England, she, — ^not of course
without deep regrets, but with the pride and zeal of a high-spirited
woman, — forwarded his plans and cheerfully shared in all his en-
deavors. During the time of her residence in Lynn, her house be-
came famous for its hospitality, and she was the friend and companion
of many of the leading persons in the colony, whom she often en-
tertained as guests, but without neglecting the daily duties which
were a part of her life. No lady ever came to these colonies of
higher lineage, of more elegant culture, or of more lovely and
christian character.*

The subject of this memoir was the son of Colonel William Whit-

' Cotton Mather, in his '* Ma^alia ** (vol. i. p. 503), thus speaks of her father and her-
self: He (Mr. Whiting) married the daughter of Mr. Oliver St. John, a Bedfordshire
gentleman, of an honorable family, nearly related unto the Lord St. John of Bletso. This
Mr. St. John was a person of incomparable breeding, rirtue and piety; such that Mr.
Cotton, who was well acquainted with him, said of him: "He is one of the completest
gentlemen, without affectation, that he ever knew; and this his daughter was a person of
singular piety and gravity, one who by her discretion freed her husband from all secular
avocations, one who upheld a daily and constant communion with God in the devotions of
her closet, one who not only wrote the sermons that she heard on the Lord's days with
much dexterity, but lived them; and lived on them all the week. The usual phrase among
the ancient Jews for an excellent woman was, ' one who deserves to marry a priest* Even
such an excellent woman was now married unto Mr. Whiting." She died March 3, 1677,
aged 72 years.— Whiting Memoir, 151-2.

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ing and Hannah Conant Whiting, of Concord. He pursued his pre-
paratory studies at the Concord Academy, and gi'aduated at Harvard
College in 1833, in the class with Professors Bo wen, Lovering and
Torrey, the Rev. George E. Ellis, D.D., Doctors Morrill and Jef-
fries Wyman, and others who have become eminent in science and
the learned professions. He received the degree of Master of Arts,
in course, in 1836, and the degree of Bachelor of Laws from the
Cambridge Law School in 1838 ; and was admitted to the bar of
Massachusetts to practise in the courts of the United States in
October of that year.

He was gifted with a clear and penetrating intellect, which, united
with great industry, and an uncommon faculty for grasping and
analyzing details, enabled him to achieve distinction in his profession,
and made him an authority in the departments to which his attention
was specially devoted. In the old Court of Common Pleas, — the
field of his earlier practice, — ^he had an amount and variety of busi-
ness hardly surpassed by any of his competitors, who sometimes gave
the name of "Whiting's Court" to that respectable tribunal.

He soon, however, became interested in more important questions,
which took him into the higher courts of this and other states and of
the United States. His early successes, grounded upon a thorough
mastery of his cases, and a complete knowledge of their details, as
well as of the principles involved in them, had already given him an
assured position in his profession, and secured to him a lucrative and
varied practice. But his chief eminence as a lawyer was attained
subsequently from his success in important suits, involving large in-
terests, arising under the patent laws, to which the later years of his
active professional life were devoted. In undertaking suits of this
nature, he studied not only the legal questions on which it was sup-

6

posed they would turn, but he explored to theh* most minute me-
chanical details the application and operation of the patents he was
defending or contesting, until he was able to instruct his clients upon
practical defects in their inventions as well as upon the law. He
acquired in this way the absolute confidence of clients, and established
a reputation as a patent lawyer, surpassed by very few, if by any,
who are now living.

Mr. Whiting was never so absorbed in his profession as to lose his
inherited interest in public questions. His father was one of the
early and uncompromising abolitionists of New-England. When the
great crisis of the nation was approaching, Mr. Whiting was espe-
cially interested in the legal and constitutional questions which the
monstrous pretensions of that system forced into prominence. In
private communications and public addresses, just before and after
the beginning of the war, he showed how earnestly he had grappled
with, and how thoroughly he had explored the great crucial questions
of the hour. He was among the first, almost the first among lawyers,
to claim that the United States had, under the constitution, full bel-
ligerent rights against those who inhabited the states in rebellion, —
among which were the rights to emancipate their slaves, to capture
and ^sequestrate their property, and to exercise all the powers of war
against a public enemy.

These views first set forth in conversations with responsible officers
of the government, were subsequently incorporated in his work on
War Powers under the Constitution of the United States, — a work
which contributed more than any other single agency to the solution
of many of the difficult questions arising in the course of the war.
It >va8 written at a time when the strain and pressure upon every
point of our constitutional fabric was intense, and when all existing

and long-accepted rules of construction were found to be lamentably
unequal to the exigency. The task which he assumed requu'ed
peculiar and accurate knowledge, — knowledge of legal principles as
wdl as of the history of the country, — and courage of no common
order. But he entered upon it without flinching, and pursued it with
characteristic vigilance and fidelity to the end.

The early editions of the work on the war powers of the govern-
ment were adopted by the president and the departments as an au-
thority on the questions treated in it ; and new editions followed as
rapidly as new questions called for examination and decision. The
value placed upon it is best attested by the remarkable fact that
within a period of about eight years forty-three editions were printed,
— ^ten in Boston, thirty-three in New-York ; and that in the mean-
time it had been made the basis of volumes of legislation, and its
leading doctrines had received the sanction of the highest courts in
the land.

In November, 1862, Mr. Whiting was requested by the president
to act as solicitor and special counsellor of the war department. Civil
suits and criminal prosecutions were pending, in many parts of the
country, against military officers and other persons for arrests made
under orders from Washington. It was a part of the duty assigned
to him to instruct counsel employed in such suits, in order that some
uniformity of practice might be secured, and the rights and dignity of
the government preserved. As time went on, suits multiplied, in-
volving men in high position. Treason reared its head in many
shapes and in many places in the northern or border states. At-
tempts were made by adroit and reckless men to bring the judicial
power of the states into collision with the military forces of the union.
Mr. Whiting's Essay on Military Arrests in Time of War was pre-^

8

pared for this emergency, and became the guide of the law officers
employed by the government in prosecutions of this kind till the close
of the war.

The office of solicitor of the war department was created by statute
in February, 1863, and Mr. Whiting was formally appointed at that
time, though there was no change in the relations he already held to
the department. This office he filled till the war was over (April,
1865), when he resigned. No successor was appointed; and the
law was repealed the following year.

Although Mr. Whiting believed and acted upon the belief that
every man should receive full compensation for his work, he never-
theless declined all payment for services rendered to the government
during the war. He looked upon this in his case as a patriotic duty ;
and without setting up his own action as an example to others, or
making any pretensions on account of it, he was content that, if his
counsel at such a time was of any value, the country should remain
his debtor.

Besides the great questions already mentioned, it became necessary
during this period (1862-5) to settle many new principles bearing
upon the return of the rebellious states to the union, their provisional
government by military power, the claims of the freedmen upon the
general government, and the claims of -citizens against the United
States growing out of the war. On all tliese questions Mr. Whiting
was not only the confidential counsellor of the president^ and secretary
of war, but he was in almost constant communication with the heads
of committees and the leading members of congress in relation to the
constitutional and practical questions affecting the great body of
wholly unprecedented legislation required by the new order of things.
That so great a revolution, reversing the traditions and the social

order of more than two hundred years, could be practically accom-
plished in so short a time, and with so little disturbance to the peace
and prosperity of the country since the war was closed, is owing in
no small degree to the counsel which Mr. Whiting, as one of the
chief law-officers of the government, gave at the threshold of legisla-
tion in regard to it. As our armies vindicated the unity of the
country against its foes in the field, Mr. Whiting vindicated the suf-
ficiency of the constitution as a legal bulwark against the narrow and
false constructionists who would have left it powerless imder the feet
of armed rebellion. In all his work at this time the distinction be-
tween legal rights in time of peace and legal rights in time of war is
very clearly made, and the discussion of principles applicable to each
period is elaborate, accurate, and convincing. It covers ground
equally important and unexplored, and is an achievement which the
nation can hardly value too highly.

Since Mr. Whiting^s resignation as solicitor of the war depart-
ment, the government has had frequent occasion to avail itself of his
services in important suits pending against it.

Though deeply interested in politics and public afiairs, as we have
seen, and not unfamiliar with the ways by which in our times offices
are won and lost, Mr. Whiting was very rarely a candidate for poli-
tical office. His professional engagements, and we may say also,
his professional ambition, kept him long from entering that stormy
arena, where success is so often attended with very doubtful honor.
His first public service of a purely political character was rendered in
1868, when, as a presidential elector for the district in which he re-
sided, he gave its vote for President Grant. In 1872 he was

nominated by the republicans of the same district, and was elected as
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its representative in the Forty-third Congress, succeeding the Hon.
Ginery Twichell. To the responsibilities and duties of this position
he had looked forward with confidence, and with well-grounded hopes
of still greater usefulness and distinction. His ambition in his chosen
profession had been abundantly gratified, and it was an agreeable
change which opened to him a more conspicuous, if not a more honora-
ble career. His quality of mind and his severe and life-long training
would have enabled him to take no common rank in the new tribunal
to which he had been chosen. His neighbors and constituents, with
many of whom he held relations of closer personal intimacy than are
usual between people and their representatives, also felt that they had
every reason to look forward to his service in the councils of the
nation as one that would not only bring increase of fame to him but
would reflect honor upon themselves ; and they lamented his loss as
that of a statesman who had just failed to enjoy the public recogni-
tion he had fairly earned ; of a patriot sincerely and honestly devoted
to the country's interests ; of a legislator of ripe talents and rare
capacity for public work ; and a citizen pure, upright and incor-
ruptible in all the relations of life.

In the intervals of his professional and public labor, Mr. Whiting
took an active interest in historical and antiquarian studies, and was
a generous contributor. to societies devoted to these objects. He was
president of the New-England Historic, Genealogical Society from
1853 to 1858 ; corresponding member of the New- York Historical
Society ; honorary member of the historical societies of Pennsylvania,
Wisconsin, and Florida ; and corresponding member of the Phila-
delphia Numismatic and Antiquarian Society. To all these societies
he contributed liberally the results of his investigations, and their

11

annals bear abundant witness otherwise to his active and intelligent
interest in their work. His address before the Historic, Genealogical
Society in January, 1853, upon entering on the duties of the presi-
dency, was in the true spirit of the genealogist and antiquary, and
marked out an heroic outline of work which the society has since, ac-
cording to its means, endeavored to execute.

Among his own books, which cannot be overlooked in a notice of

•

this kind, is his "Memoir of the Rev. Samuel Whiting, D.D., and
of his wife Elizabeth St. John ; with references to some of their Eng-
lish ancestors and American descendants," — a beautiful volume,
printed but not published, which merits a very high place in the roll
of New-England biographies. The same persistent and unsparing
labor which he gave to his profession, he also gave to the literary
work to which he was fond of resorting by way of diversion. His
occasional addresses always bore the results of original thought and
of careful and patient execution. A striking example of this is his
last literary address before the combined societies of Colby Univer-
sity, in July, 1872, on the Laws and Conditions of Intellectual
Power. He received at that time the honorary degree of Doctor of
Laws from the government of that university.

This brief sketch would be incomplete if it omitted reference to
the felicities of Mr. Whiting's home. It was there he found the
quiet and solace without which his delicate physical organization
could never have borne the exacting strain of his long and unremit-
ting labors. There also was his study, where his successive cases re-
ceived that thorough consideration and preparation which established
his fame as a lawyer, and where the written or printed arguments
in each case are now preserved. There, too, may be seen, within

12

and without, abounding evidence of his remarkable industry and
pure taste, which made every inch of his grounds contribute to the
general effect he sought, and filled every niche in his house with
objects of interest and beauty.

His public spirit prompted his support of all deserving objects in
the community of which he was for so many years a member.
He was among the earliest advocates of the union of the muni-
cipalities of Roxbury and Boston. He showed by his acts in many
striking instances the deep interest he always felt in young men.
The extent of his private giving will never be known, if it were de-
sirable. It is enough that few worthy objects ever called in vain upon
him. By his will he left five thousand dollars to Harvard College
for a scholarship, and to the free public library in his native town
one thousand dollars.

In a profession so absorbing as the law to those who fill its high
places, little leisure is usually found for wide general studies, outside
of its absolute requirements ; but to meet these in accordance with
Mr. Whiting's standard, and as he met them, there was necessary a
good acquaintance with many departments of science. It may be
truly said that he was rarely wanting in precise information on all
the points of his large practice. When the great struggle of his
time came, his sympathies and studies had fully prepared him for it,
and he gave to the national cause a support as efiScient and unselfish
as that of the best and bravest. He had the full confidence of Mr.
Lincoln, and few men held that providential leader in profounder
veneration. In his religious belief Mr. Whiting was a Unitarian.

Mr. Whiting died at his house on Montrose Avenue, Roxbury,
on the 29th of June, 1873, aged sixty years. He had been confined

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within doors but a few days, and his illness had excited no appre-
hensions. Late in the afternoon of that day, while resting quietly on
his pillow, he was seized with sharp pains about the heart, and expired
in a few moments.

He was married in October, 1840, to Lydia Gushing Eussell,
daughter of the Hon. Thomas Russell, of Plymouth, who with three
children survives him.

WORKS OF MR. WHITING.

1. Argument Boston Gas Light CompaDy vs. William Gault. Bos-
ton, 1848. 8vo. pp. 55.

2. Argmnent in the case of Elias Johnson ei aL vs. Peter Low et aL
Boston, 1848. 8vo.

3. Report of the Committee in Favor of the Union of Boston and Box-
bury. Boston, 1851. 8vo. pp. 35.

4. Speech before a Committee of the Legislature of Massachusetts on
the Destruction of Boston Harbor. Boston, 1851. 8vo. pp. 80.

5. Argument in the Supreme Court of the United States in the case of
Brooks vs. Fiske et aL (case of Wood worth Planing Machine Patent).
1852. 8vo. pp. 87.

6. Argument in the case of Boss Winans vs. Orasmus Eaton et aL be-
fore the Circuit Court of the United States for the Northern District of
New- York (on the patent for the eight-wheeled car). 1853. pp. 165.

7. Address delivered to the members of the New-England Historic,
Genealogical Society, on assuming the office of President. Boston, 1853.
8vo. pp. 16.

8. Memoir of the Rev. Joseph Harrington. Boston, 1854. 12mo.
pp. 64.

9. Argument before a Committee of the Legislature of Massachusetts
in behalf of the Renionstrants against the erection of a Bridge across Chelsea
Creek. 1854. 8vo. pp. 29.

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10. Argument in the case of interference between Farley and Allen
(the Volute Spring Steam Guage). 1858. 8vo. pp. 102.

11. Twenty Years' War against the Railroads: a Letter to the Hon.
Erastus Corning. 1860. 8vo. pp. 29.

12. Closing Argument in the Supreme Court of the United States in
the case of Ross Winans vs. New-York and Erie Railroad. 1860. pp. 116.

13. The War Powers of the President and the Legislative Powers of
Congress in Relation to Rebellion, Treason and Slavery. Boston, 1862.
8vo. pp. 143.'

14. The Return of the Rebellious States to the Union ; a Letter to the
Union League of Philadelphia, 1863. 8vo. pp. 15.

15. Military Arrests in Time of War. Washington, 1863. 8vo. pp. 59.

1 6. Opinions on " Slavery," and " Reconstruction of the Union " as
expressed by President Lincoln. With brief Notes. 1864. 8vo. pp. 16.

17. Military Government of Hostile Territory in Time of War. Bos-
ton, 1864. 8vo. pp. 92.

18. Argument in the Grcuit Court of the United States in the case of
Union Sugar Refinery vs. the Continental Sugar Refinery. Boston, 1867.
8vo. pp. 190.

19. Address before the Boston Highlands Grant Club, August 5, 1868.
Boston, 1868. 8vo. pp. 44.

^ A friend has ftirnished the foUowiag memoranda relative to the several editions of Mr.
Whiting's " War Powers."

First edition, published by John L. Shorey, Boston. 1862.

Second edition, by same, with preface by author. 1862.

Third edition, not found.

Fourth edition, published by Shorey, for the Emancipation League. 1863.

Fifth edition, not found.

Sixth edition, by Shorey, for the Emancipation League. 1863.

Seventh edition, with Appendix. Shorey, 1863. 8vo. pp. 151.

Eighth edition, with essay on " Military Arrests in time of War," and Letter to the Union
League of Philadelphia on the Return of the Rebellious States to the Union. Shorey,
1864. 8vo. pp. 263.

Tenth edition, with << Military Arrests," Return of the Rebellious States, or, as it was
then called. Reconstruction of the Union, and *' Military Government in Time of War."
Little & Brown. 1864. 8vo. pp. 342.

Forty-third edition, Lee & Shepard, with addition of " War Claims of Aliens," «* Opin-
ions of the Supreme Court," and; *' Notes " and Appendix. 1871. 8vo. pp. 695.

Editions of this work were issued also in Washington, Philadelphia, and New- York, and
one at least was printed for foreign distribution.

15

20. Address on the Constitutionality of the Reconstruction Laws.
Oct. 13, 1868. [Boston Daily Advertiser, Oct 14, 1868.]

21. Argument in the case of Crowell vs. Sim et al. 1869. pp. 34.

22. Argument in case before the Circuit Court of the United States for
New-York, in the case of Rumford Chemical Works vs. John E. Lauer.
1869. pp. 78.

23. Argument in case of The City of Chicago vs. George T. Bigelow,
administrator, &c., appellee. Boston, 18 6Q> 8vo. pp.57. (Not delivered.)

24. Argument before Hon. George S. Hillard, Master in Chancery.
Union Sugar Refinery vs. Francis O. Matthiessen (rule in equity as to
costs). Boston, 1869. 8vo. pp. 120.

25. Argument before the Commissioner of Patents in behalf of Capt.
Prince S. Crowell. Boston, 1870. 8vo. pp. 114.

26. Letter to the Hon. Henry Wilson on the Pacific Railroad. 1870.
8vo. pp. 7.

27. Argument in the Circuit Court in the case of James S. Carew et <d,
vs. Boston Elastic Fabric Company. Boston, 1871. 8vo. pp. 107.

28. Memoir of Rev. Samuel Whiting, D.D., and of his wife Elizabeth
St. John. Boston, 1872. 8vo. pp. 334. [Fifty copies. Second edition
1873, pp. 334, two hundred copies. Neither edition was published, both
being printed for private distribution.]

29. Argument in the Circuit Court of the United States for New-York
the Union Paper Collar Company vs. Ward. 1872. pp. 850.

30. Argument in the Circuit Court of the United States for New-York :
the Rumford Chemical Works vs. Hecker et al. 1872.

31. Address before the Boston Highlands Grant and Wilson Club,
September 16, 1872. 8vo. pp. 45.

32. Address before the Combined Literary Societies of Colby Univer-
sity, July 22, 1872. Boston, 1872. 8vo. pp. 24.

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