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NYPL  RESEARCH  LIBRARIES 


3  3433  08238891  3 


f\ecollectioi\s 


L.OI\ 

Edgar  <J.  SKermai\ 


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Some  Recollections  of 
a  Long  Life 


v^ 


Edgar  Jay  Sherman 


4s 


Boston 

Privately  Printed 

1908 


l-\v 


THE  NEW  YORK 

'^''^JC  LIBRARY 

Z8Z222l\ 

ASTOB,  LENOX  AND 

'iilVm  i<OUNDATiONS 

B  1944  L 


Printed  by 

Newcomb  &  Gauss 

Salem,  Mass. 


Copyrighted  1908 


PREFACE. 


Thinking  it  miglit  be  interesting  to  my  children,  my 
grandchildren,  or  my  great  grandchildren,  in  some  future 
generation  to  learn  something  concerning  their  ancestors 
"who  have  passed  over  to  the  great  majority",  and  at  the 
earnest  request  of  my  children,  I  am  prompted  to  write 
and  publish  for  private  use,  the  following  pages.  I  do 
this  with  some  misgivings,  however,  as  I  recall  the  saying, 
"Oh,  ***  that  mine  adversary  had  written  a  book !"  and  I 
also  know  that  any  one  writing  of  himself  is  liable  to  ex- 
hibit a  good  deal  of  egotism. 

I  subscribe  myself  their  humble  ancestor, 

Edgae  J.  Sherman. 


LIST  OF  ILLUSTRATIONS. 


PoETRAiT, Frontispiece 

BiETHPLACE,  Weathersfield,  Vermont,     ....     p.   9 

Capt.  Sheeman^  August,  '63,  after  a  severe  illness,  p.  39 
Col.  E.  J.  Sheeman,  Asst.  Adj.  Gen.  Mass.  Militia,  p.  72 
Gen.  Benjamin  F.  Butlee,  and  staff,  1867,  .  .  p.  73 
SuMMEE  Home  at  Bass  Rocks;  1877-1903,  .  .  p.  169 
SuMMEE  Home  at  Bass  Rocks;  1877-1903,  .  .  p.  185 
Judge  Sheeman's  Peesent  Summee  Home,  .  p.  217 
Mes.  Edgae  J.  Sheeman,  the  Judge's  first  wife,  p.  241 
AscuNEY  Mountain, p.  265 


TABLE  OF  CONTENTS. 


Chaptee  I.     Ancestry  and  Youth. 

Birth  and  forefathers.  School  days.  Working  on 
the  farm.  Teaching  at  Springfield,  Vermont;  at 
Cape  Cod.  Experience  with  Sidney  Ellis.  A  prayer 
in  school. 


Chaptee  II.     My  Start  in  Life. 

Assaulted  by  mistake.  Disappointment  as  regards 
entering  college.  Admitted  to  the  Essex  Bar.  My 
first  case.  Partnership  with  Honorable  Daniel 
Saunders,  of  Lawrence.  My  mother's  death;  her 
character.  Marriage.  As  Clerk  of  the  Police  Court. 
Eall  of  the  Pemberton  Mills.  O.  S.  Fowler  examines 
my  head. 


Chapter  III.     In  the  Civil  War. 

I  enlist  as  private,  elected  Captain  in  the  48th 
Massachusetts  V.  M.  Departure.  A  burial  at  sea. 
Letter  to  a  bereaved  mother.  Arrival  in  Louisiana. 
I  leave  hospital  for  Port  Hudson.  Assault  of  June 
14th,  1863,  Repulse  and  retreat.  Brevetted  major. 
Home  by  the  Mississippi.  Later  service  at  Wash- 
ington and  Fort  Delaware. 


TABLE   OF   CONTENTS. 


Chaptek  IV.     Representative  and  District  Attorney. 

Elected  as  Representative.  I  help  B.  F.  Butler 
to  a  Major-Generalcy.  Cases  at  the  bar.  Partner- 
ship with  John  K.  Tarbox.  Ann  Robbins  vs.  Joseph 
Potter.  Successful  practice.  Elected  District  At- 
torney for  Essex.  Case  of  Leonard  Choate,  the  "fire- 
bug", of  Wightman.  Experience  with  Stephen  B. 
Ives,  Jr.  A  culprit  tangled  up  in  cross-examination. 


Ohaptee  V.     Register  in  Bankruptcy,  Assistant  Adju- 
tant General  and  Attorney  General. 

An  attempt  to  steal  frustrated.  Experience  vdth 
Judge  Otis  P.  Lord.  Death  of  my  oldest  brother. 
Made  Assistant  Adjutant  General.  Concord  muster 
of  1870.  My  election  as  Attorney  General.  Sudden 
illness  and  complete  recovery. 


Chapter  VI.     Attorney  Generalship, — continued. 

Case  of  Dr.  Franklin  Pierce.  Lord  Coleridge  ap- 
proves my  opinion.  His  lordship  shown  T  Wharf. 
Friendliness  of  B.  F.  Butler.  Argument  in  the  case 
of  James  Nicholson. 


Chapter  VII.     Attorney  Generalship, — continued. 

I  oppose  B.  F.  Butler  in  the  case  of  Henry  K. 
Goodwin. 


Chapter  VIII.     Attorney  Generalship, — continued. 

Case  of  Alfred  T.  Adams,  of  Marion  A.  Montgom- 
ery, of  Samuel  F.  Besse,  of  James  E.  Nowlin,  of 
Sarah  J.  Robinson,  of  Charles  H.  Freeman,  of  the 
Housatonic  R.  R.  Co. 


TABLE   OF   CONTENTS. 


Chapter  IX.     As  Judge  of  the  Superior  Court. 

My  intimacy  with  Governor  Oliver  Ames.  I  de- 
cline a  seat  on  the  Supreme  Bench,  but  accept  a 
justiceship  of  the  Superior  Court.  Death  of  Govern- 
or Ames.  A  bright  criminal.  Sentence  of  John  C. 
Sanborn,  a  high  official  of  the  'New  York,  Xew 
Haven,  and  Hartford  R.  R.  Co.  Case  of  McCarthy. 
A  boy  witness.  Experience  with  Thomas  Riley. 
Tribute  to  Charles  P.  Thompson.  Extract  from  the 
Boston  Globe. 


Chapter  X.     Continued  Judicial  Service. 

Case  of  Daniel  W.  Getchell,  of  Torrey  E.  Ward- 
ner  for  contempt  of  court.  Unpleasant  experiences. 
Case  of  Jefferson.  Petition  for  my  removal.  Misuse 
of  the  right  of  petition. 


Chapter  XL     Continued  Judicial  Service. 

Capital  Trials.  Case  of  Trefethen,  of  Languer, 
Correspondence  with  Attorney  General  A.  E.  Pills- 
bury.     Case  of  Patrick  Sullivan,  etc. 


Chapter  XII.     Continued  Judicial  Service. 

Case  of  Franciszek  Umilian,  of  John  C.  Best,  of 
Lorenzo  W.  Barnes,  of  Alfred  C.  Williams,  of 
Charles  L.  Tucker. 


8  TABLE  OF   CONTENTS. 


CiiAPTEK  XIII.     Excursions  and  Meetings  with  Famous 
Men. 

President  of  the  Boston  Vermont  Association. 
Excursion  to  Vermont  in  1901.  Entertained  at 
Montpelier,  Burlington,  Lake  Champlain,  etc.  Ill- 
ness and  death  of  Mrs.  Sherman.  The  Lawrence 
semi-centennial.  Visit  to  Texas,  to  South  Carolina. 
I  meet  Abraham  Lincoln,  U.  S.  Grant,  Franklin 
Pierce,  James  Buchanan,  W.  T.  Sherman,  P.  H. 
Sheridan,  D.  G.  Earragut,  the  Prince  of  Wales,  now 
Edward  VIL,  Longfellow,  Whittier,  Holmes,  Lem- 
uel Shaw,  Charles  Sumner,  Henry  Wilson,  Frederick 
Douglass,  George  S.  Boutwell,  Rockwood  Hoar, 
Wendell  Phillips,  S.  G.  Howe,  ^.  P.  Banks,  Theo- 
dore Roosevelt,  James  G.  Blaine,  Ben  Wade.  My 
intimacy  with  Robert  G.  Ingersoll.  Second  Mar- 
riage.    A  few  stories  from  the  Judges'  Lobby. 


Ohaptee  XIV.     The  Juhilee  Banquet,  March  17,  1908. 

First  suggested  by  Messrs.  Hurlburt  and  Jones. 
The  Boston  Herald  thereon.  Officers  of  the  Essex 
Bar  Association  and  guests.  Speeches  and  letters  of 
William  H.  Exiles,  William  H.  Moody,  Herbert  Par- 
ker, Marcus  P.  Knowlton,  William  L.  Putnam,  John 
A.  Aiken,  John  D.  Long,  Dana  Malone,  John  P. 
Sweeney,  Daniel  Saunders,  Harvey  IT.  Shepard, 
Samuel  J.  Elder,  George  Fred  Williams,  Sherman 
L.  Whipple,  Charles  U.  Bell  and  Edgar  J.  Sherman. 


APPENDIX. 
List  of  Children  and  Grandchildren, 


5 


1 1 L  i)  i*  N'  1-' .  '■  V  \  .  >  *  f  , .,  i  >  ,K 


A 


CHAPTER  I. 


ANCESTEY  M^D  YOUTH. 


Genealogical. 

I  was  born  in  Weathersfield,  Windsor  County,  Ver- 
mont, November  28,  1834,  being  the  fourth  child  of 
David  and  Fanny  (Kendall)  Sherman,  on  the  same  farm 
owned  by  my  father,  grandfather  and  great  grandfather. 

I  have  always  had  a  desire  to  know  something  of  my 
ancestors;  who  they  were,  and  where  they  came  from  to 
this  country;  but  until  about  1870,  when  I  read  an  article 
written  by  the  Rev.  David  Sherman  in  the  New  England 
Genealogical  Register  of  January  of  that  year,  I  knew 
nothing  about  them  further  back  than  my  grandfather. 

The  first  of  the  family  of  whom  I  have  knowledge  was 
Henry  Sherman  of  Dedham,  Essex  County,  England, 
who  died  in  1589.  Tracing  the  family  since,  it  runs; 
Henry  (1),  Henry  (2),  Edward  (3),  and  Rev.  John  (4), 
who  came  to  this  country  in  1633.  He  remained  a  short 
time  at  Watertown,  Massachusetts,  from  whence  he 
moved,  in  1640,  to  Wethersfield,  Connecticut,  where  he 
became  a  magistrate.  Captain  Daniel  (5),  Samuel  (6), 
Samuel  (7),  David  (8),  David  (9),  and  Edgar  (10), 
myself. 

The  Samuel  Sherman  (7)  last  above  named  was  my 
great  grandfather.  He  was  born  April  8,  1740,  and  died 
June  22,  1811,  at  Weathersfield,  Vermont.     He  moved 


10  SOME  EECOLLECTIONS 


from  Wethersfield,  Connecticut,  to  Weathersfield,  Ver- 
mont, between  1760  and  1780,  perhaps  giving  the  new 
settlement  the  name  of  the  town  from  which  he  came,  al- 
though it  is  spelled  differently. 

At  or  before  his  death,  the  farm  of  several  hundred 
acres  was  divided  between  his  four  sons,  Samuel,  David, 
Gould  and  Alpheus. 

The  above  named  David  was  my  grandfather.  He  was 
born  January  24,  1772  and  died  December  22,  1844.  I 
remember  him  very  well.  He  was  a  Calvinist  Baptist, 
very  strict  and  devout.  My  father  purchased  the  farm  of 
grandfather  and  took  care  of  him  and  grandmother  as 
long  as  they  lived. 

"The  Sherman  Family",  which  is  numerically  strong, 
has  included  Roger  Sherman,  General  William  T.  Sher- 
man and  John  Sherman,  among  its  noted  members. 

Little  can  be  said  of  my  early  life  different  from  that 
of  most  country  boys,  except  that  I  was  more  mischievous 
and  troublesome  than  the  average  boy. 

My  playmates  were  generally  considered  "the  bad 
boys"  of  the  neighborhood,  and,  I  am  inclined  to  believe, 
that  it  was  not  the  best  recommendation  a  boy  could  have 
to  be  an  associate  of  mine.  Still  I  do  not  recall  any  very 
bad  things  we  ever  did. 

I  remember,  to  my  sorrow,  and  great  disadvantage  to 
this  day,  that  I  was  so  full  of  mischief,  I  neglected  my 
studies  in  school  and  spent  my  time  in  provoking  fun  and 
sport  for  the  scholars.  When  called  to  account  by  the 
teacher  I  would  look  like  injured  innocence  that  I  should 
be  even  suspected!  Often  I  succeeded,  after  a  long  argu- 
ment, to  the  delight  of  the  children,  convincing  the 
teacher  of  my  innocence. 

I  remember  one  winter,  after  the  teacher's  patience 
had  been  tried  bv  the  scholars  coming  in  late  at  the  noon 


OF  A  LONG  LIFE.  11 


recess,  he  declared  he  would  punish  any  and  every  scholar 
who  should  thereafter  be  late. 

The  next  noon  another  boy  and  I  suggested  to  the  girls 
and  boys  that  we  all  go  sliding  and  skating ;  that  we  would 
watch  for  the  teacher's  return  and  notify  them  in  season 
so  that  they  would  not  be  punished  for  being  late. 

The  afternoon  session  began  at  one  o'clock.  At  that 
time  there  were  only  a  few  scholars  in  attendance. 

About  half-past  one,  we  (the  other  boy  and  I)  mounted 
a  high  wall  back  of  the  school  house,  and  there  screamed 
at  the  top  of  our  voices,  "School  has  begun.  Come  quick, 
run!  hurry,  hurry,"  and  then  ran  into  the  school  house, 
taking  our  seats,  looking  anxious  and  innocent.  Soon, 
in  came  the  other  scholars,  one  after  another,  all  out  of 
breath,  and  coughing,  and  keeping  the  school  in  an  up- 
roar for  some  time. 

After  a  while  the  teacher,  ferule  in  hand,  came  in  front 
of  my  desk  and  told  me  to  hold  out  my  hand.  Such  a 
look  of  surprise  came  over  my  face  as  almost  to  deter  him. 
Then  an  argument  began  between  teacher  and  pupil  on 
the  merits  of  punishment,  after  the  scholars  had  taken 
such  pains  to  prevent  disobeying  the  rule, — placing  two 
boys  to  watch  for  the  teacher's  coming  to  school  at  the  end 
of  the  noon  recess,  and  as  to  how  it  could  have  happened 
that  the  said  two  boys  did  not  observe  the  teacher,  etc., 
etc.  At  last  the  teacher  relented  and  laid  aside  his  ferule. 
Imagine  the  discipline  of  the  school  after  that  date!  If 
the  teacher  had  taken  the  "said  two  boys"  well  in  hand 
at  that  time  it  would  have  been  for  the  benefit  of  the 
school  and  to  the  great  advantage  of  the  said  boys. 


12  SOME  EECOLLECTIONS 

ExPEEIEiSTCE  ON  THE  FaEM. 

AlmoBt  every  year  my  father  used  to  make  a  trip  to 
Boston.    This  was  before  the  day  of  railroads  in  Vermont. 

He  would  kill  the  poultry,  butcher  his  hogs,  and  load 
his  team  with  farm  produce  and  drive  to  Boston.  There 
he  would  make  the  exchange  for  flour,  sugar,  coffee,  etc., 
articles  that  were  needed  on  the  farm,  and  drive  home, 
the  trip  lasting  nearly  a  week. 

My  father  used  also  to  team  flour  across  the  State  from 
Whitehall  to  Weathersfield.  I  remember  going  with  him 
in  1843,  when  I  was  a  small  boy,  and  driving  one  of  the 
four-horse  teams  along  behind  my  father's  team. 

I  remember  the  date  particularly,  because  it  was  dur- 
ing the  Miller  excitement.  Miller  had  prophesied  that 
the  "world  was  to  bum  up",  and  the  date  was  fixed. 
Father  pointed  out  to  me  the  house  where  Miller  lived. 
I  remember  asking  father,  if  it  was  true.  He  replied,  no, 
that  most  of  the  people  did  not  believe  in  Miller,  although 
he  had  a  great  many  followers,  who  did  believe  in  him, 
and  did  believe  that  the  world  was  to  come  to  an  end  by 
burning. 

When  the  day  arrived,  sometime  in  October  (I  think) 
1843,  a  new  date  had  to  be  stated.  "The  Millerites",  as 
they  were  called,  were  greatly  disappointed. 

Experiences  as  a  Pedagogue. 

In  the  winter  of  1848-9,  being  quite  large  for  a  boy  of 
my  age  and  feeling  ashamed  of  my  ignorance,  I  began  to 
study  and  improve  my  time. 

In  the  autumn  of  1851,  encouraged  by  my  good  mother, 
I  attended  for  three  months  the  Wesleyan  Seminary  at 
Springfield,  Vermont,  going  to  the  district  school  in  the 


OP  A  LONG  LIFE.  13 


winter,  returning  to  the  Seminary  for  the  spring  term, 
and  laboring  on  the  farm  during  the  summer.  Thus  I 
continued  for  several  years. 

Encouraged  by  F.  O.  Blair,  the  principal  of  the  Semi- 
nary, I  engaged  to  teach  school  (in  fact  he  engaged  the 
school  for  me)  in  the  winter  of  1852-3  in  the  town  of 
Springfield,  at  a  district  called  "Hard  Scrabble". 

I  was  examined,  granted  a  certificate  and  commenced 
teaching.     I  taught  a  twelve  weeks  term  in  six  weeks! 

A  son  and  daughter  of  a  wealthy  and  influential  family 
in  the  district  had  attended  school  at  the  Seminary  with 
me,  and,  as  I  learned  afterwards,  were  opposed  to  my 
teaching  their  school.  They  attended  school,  conducted 
themselves  with  propriety,  but  kept  up  a  "lively  talk" 
outside.  An  honest  farmer,  who  was  the  inefficient  com- 
mittee man,  waited  upon  me  and  asked  "How  be  ye 
gettin'  on?"  I  replied  that  I  thought  "well".  "You're 
not  gettin'  on  at  all  well",  said  the  committee  man.  "How 
do  you  know?  You  have  never  honored  us  with  your 
company!"  said  I  "Oh,  I  have  heard  the  talk",  said  he. 
He  paid  me  what  was  due  and  I  was  obliged  to  leave. 
I  was  terribly  mortified.  I  had  undertaken  to  teach 
school  and  had  failed! 

I  went  home  and  explained  the  matter  to  my  father  and 
mother.  My  father  was  evidently  discouraged,  and  said 
"Well,  now  I  guess  you'd  better  go  to  work  and  remain  on 
the  farm" ! 

My  mother,  with  more  faith  and  better  judgment, 
said  "I  understand  it  all;  it  was  not  your  fault.  You 
can  teach.  Go  back  to  the  Seminary,  and  next  winter 
try  it  again.     I  know  that  you  will  succeed". 

I  would  that  everybody  could  know  the  different  effect 
the  language  of  my  father  and  mother  had  upon  me.  My 
whole   future  course  was   at   stake.      I  was   almost   dis- 


14  SOME  EECOLLECTIONS 

couraged.  It  was  a  critical  time  in  my  life.  I  went  back 
to  the  Seminary  and  continued  my  studies.  I  do  not 
blame  my  father.  He  lacked  the  courage  and  confidence 
of  my  mother. 

My  room  mate  at  the  Seminary  was  George  O.  Atkin- 
son, since  a  clergyman  in  the  West.  He  told  me  that  there 
were  good  opportunities  for  teachers  on  Cape  Cod,  Mass- 
achusetts. 

In  the  spring  of  1853  my  father  sold  his  farm  in 
Weathersfield  and  moved  to  Lawrence,  Massachusetts. 

I  was  determined  to  teach  again. 

The  last  of  N'ovember  of  that  year  I  went  to  Lawrence, 
visited  my  family,  and  then  started  for  Harwich,  Barn- 
stable County,  Cape  Cod,  Massachusetts. 

I  was  not  acquainted  with  a  person  there ;  I  had  heard 
the  name  of  only  one  man, — Sidney  Brooks,  the  principal 
of  a  small  seminary  there. 

I  went  to  Boston  (where  I  had  never  been  before),  then 
to  Sandwich  by  cars;  there  I  took  the  stage,  and  after  a 
long  ride  arrived  at  Harwich  late  at  night. 

The  next  morning  I  called  upon  Mr.  Brooks,  but  did 
not,  as  I  could  not,  present  any  recommendations  as  a 
teacher. 

He  received  me  kindly,  but  informed  me  that  all  the 
good  schools  in  town  had  been  engaged,  leaving  only  three, 
one  a  small  school  which  was  usually  taught  by  a  woman, 
and  two  others  which  were  so  bad  that  they  were  troubled 
to  find  teachers  to  undertake  to  teach  in  them. 

My  friend  and  schoolmate,  since  a  merchant  in  Kan- 
sas, Lyman  Field,  and  my  brother,  Henry  L.  Sherman, 
requested  me  to  engage  schools  for  them.  Here  were 
schools  enough  for  all  of  us,  but  a  dubious  sight  for  me, 
in  view  of  my  past  experience. 

Armed  with  a  line  from  Mr.  Brooks,  who  was  chair- 


OF  A  LONG  LIFE.  15 


man  of  the  town  examining  board,  I  started  for  the 
prudential  committee  men  of  the  three  districts. 

I  engaged  the  small  school  for  Mr.  Field,  and  then 
went  to  Bassettsville,  so-called,  and  found  a  Captain  Bas- 
sett,  an  old  sea  captain,  who  was  the  committee  man.  I 
remember  him  as  having  a  very  red  face,  with  a  half 
hand  of  tobacco  inside  his  cheek,  the  juice  running  from 
the  corners  of  his  mouth.  I  made  known  my  business. 
"Why",  said  he,  "you  can  have  the  school,  but  the  boys 
will  carry  you  out  the  first  day;  there  are  a  dozen  of  'em 
larger  and  older  than  you  are,  and  we  have  one  scholar 
who  is  over  twenty  years  old  and  weighs  over  two  hun- 
dred. The  boys  seem  to  make  a  business  of  carrying  out 
teachers  as  fast  as  we  can  hire  'em ;  but  if  you  are  a  fight- 
er and  can  stay  in  the  schoolhouse,  I'll  hire  you.  If  you 
don't  kill  more  than  two  or  three  of  them  I'll  back  you 
and  find  no  fault". 

I  found  the  other  school  at  Deerfield,  so  called,  a  large 
one  and  a  hard  one,  but  not  so  bad  as  the  one  at  Bassetts- 
ville. 

Here  were  opportunities  for  teachers,  sure  enough,  but 
I  had  failed  once.  What  should  I  do.  Here  I  was;  to 
return  would  be  a  failure. 


Teaching  at  Cape  Cod. 

I  engaged  all  the  schools  and  sent  for  Mr.  Field  and  my 
brother.  They  came,  and  we  were  examined  and  given 
certificates  as  qualified  to  teach. 

Then  it  must  be  decided  which  school  I  should  take.  I 
was  only  nineteen  years  old  and  weighed  about  one  hun- 
dred and  thirty  pounds. 

My  brother  insisted  that  I  should  take  the  "fighting 


16  SOME  RECOLLECTIONS 

school",  as  we  called  the  one  at  Bassettsville,  saying  that 
I  had  had  more  experience  in  wrestling  and  boxing  than 
he.  This  was  true.  At  the  seminary,  these  were  among 
the  sports  of  the  scholars,  and  I  enjoyed  atheltic  sports 
of  all  kinds.  I  could  pass  a  better  examination  in  these 
sports  than  in  my  studies.  It  was  finally  decided  that  I 
should  go  to  Bassettsville. 

At  the  beginning  the  school  was  small.  Soon  the  larger 
boys  came,  and  finally  Sidney  Ellis,  weighing  over  two 
hundred.  My  heart  sank  within  me.  He  was  the  leader 
in  all  mischief.  He  was  ignorant,  scarcely  able  to  read  or 
write  his  own  name,  but  he  was  the  hero  and  idol  of  the 
unruly. 

These  boys  were  not  bad  boys.  They  only  wanted  to 
keep  up  their  reputation  of  carrying  out  the  teacher.  I 
tried  to  make  friends  with  them,  but  while  they  acted 
kindly  out  of  school,  they  were  not  behaving  well  in 
school.     Sidney  was  their  leader. 

I  talked  with  Mr.  Bassett.  He  said  if  Sidney  did  not 
behave  to  send  him  out  of  school.  At  the  close  of  school, 
one  day,  after  I  had  spoken  to  him  several  times  on  ac- 
count of  misbehavior,  I  told  him  what  the  committee  man 
had  authorized  me  to  do,  and  said  "You  cannot  come  to 
school  any  more  without  his  or  my  consent".  He  replied, 
"I'll  see  about  that". 

It  was  soon  noised  about  that  the  boys  were  to  carry 
the  teacher  out  of  doors  the  next  morning. 

That  evening  the  parents  of  many  of  the  scholars  came 
to  see  me.  They  praised  the  teacher ;  told  how  well  their 
children  had  succeeded  in  their  studies;  expressed  great 
sympathy  for  the  teacher,  and  condemned  the  conduct  of 
the  bad  boys.  Their  call  seemed  a  little  like  a  funeral. 
They  felt  sure  I  was  to  be  carried  out  and  they  came  to 
take  leave  of  me. 


OF  A  LONG  LIFE.  17 


The  committee  man,  Captain  Bassett,  came  to  see  me. 
He  had  learned  that  I  was  to  be  carried  out  of  school  the 
next  morning ;  but  he  came  to  assure  me  that  it  would  not 
be  done.  I  asked  him  why  he  felt  so  sure.  "Because  I 
shall  be  there",  replied  the  Captain. 

I  remonstrated  with  him.  "Of  course  they  would  not 
act  while  you  were  there,  and  you  cannot  be  there  all  the 
time.  They  will  say  I  am  a  coward.  No,  no.  Captain, 
I  must  manage  this  affair  alone.  If  they  carry  me  out,  I 
must  leave  the  school". 

My  brother  and  Mr.  Field  had  heard  of  the  news  in 
the  adjoining  districts  and  came  over  later  in  the  evening, 
looking  serious  and  anxious,  making  suggestions  and  of- 
fering their  sympathy.  After  all  my  friends  had  left  me, 
I  retired.  What  a  lovely  night  the  teacher  had !  If  I  left 
that  school  it  would  be  failure  number  two !  I  resolved  on 
a  desperate  struggle;  that  there  should  be  no  boys'  play. 
It  seemed  clear  to  me  that  in  a  difficulty  of  this  kind  the 
hoys  must  not  be  allowed  to  get  hold  of  me ;  that  I  must 
press  the  fight  at  the  first  signal  and  finish  it  before  it  had 
fairly  begun. 

I  was  at  the  schoolhouse  early;  saw  that  the  fire  in 
the  stove  was  all  right,  and  that  the  old  iron  shovel  was 
handy  for  all  proper  uses. 

One  thing  was  noticeable;  generally  the  larger  boys 
were  not  at  school  when  it  begun  its  session,  but  were 
straggling  in  all  the  forenoon.  This  morning  they  were 
all  "present  and  accounted  for",  with  Sidney  among  them. 

Promptly  at  nine  o'clock  the  school  was  called  to  order. 
they  all  had  the  benefit  of  the  morning  exercises,  the  read- 
ing of  scriptures,  excepting  Ellis. 

After  this  I  walked,  as  calmly  and  coolly  as  the  circum- 
stances would  permit,  to  the  front  of  the  desk  where  Ellis 
was  sitting  and  said,  "Sidney,  I  told  you  last  night  not 


18  SOME  EECOLLECTIONS 

to  come  to  school  again  without  permission".  "Yes",  he 
replied,  "I  believe  you  did",  at  the  same  moment  winking 
to  his  confederates  and  starting  to  rise.  I  sprang  forward 
and  dealt  him  a  blow  in  the  side  of  the  head  with  my  fisty 
with  all  the  force  and  power  I  possessed.  He  fell  partial- 
ly forward  and  down.  I  seized  him,  with  one  hand  hold 
of  the  long  hair  on  the  back  of  his  head  and  neck,  and 
with  the  other  hand  had  hold  of  his  chin  whiskers,  and^ 
with  great  difficulty,  dragged  him  across  the  floor  to  the 
door,  where  he  tried  to  get  hold  of  my  legs  and  the  door. 
I  then  let  go  my  hold,  and  kicked  him  in  the  side  of  the 
head.  The  blood  flew,  but  it  ended  the  struggle.  He  was 
easily  tumbled  out  and  the  door  locked. 

Not  one  of  his  friends  moved  from  his  seat;  they 
looked  frightened,  and  many  of  the  children  were  crying. 

As  soon  as  I  could  compose  myself,  I  made  a  few  re- 
marks, quieting  the  little  ones,  and  assuring  the  larger 
ones  that  hereafter  order  was  to  be  preserved  in  the  school. 

That  forenoon  I  punished  three  of  the  large  boys  for 
abusing  a  half-witted  boy  at  recess. 

A  few  days  thereafter  I  received  my  first  letter  from 
a  lawyer: 


"Beewstek,  January  21,  1854. 

Me.  E.  J.  Sheemajst, 

Sir: — Mr.  Nathan  Ellis  has  left  with  me  for  collection 
or  prosecution,  a  demand  against  you  for  assaulting  and 
putting  out  of  school  his  son. 

■  Your   immediate   attention   to   the   same   will   prevent 
further  costs. 

Yours,  etc., 

Geoege  Copeland''\ 


OF  A  LONG  LIFE.  19 


My  reply  was: 

"Haewich,  January  21,  1854. 

George  CopelanD;,  Esq., 

Sir:  Yours  of  today  I  have.  In  reply,  will  say,  should 
Mr.  ]!^athan  Ellis  wish  you  to  proceed  with  the  prosecution 
you  speak  of,  you  can  do  so,  as  I  shall  be  very  happy  to 
stand  trial. 

Yours  in  haste, 

E.  J.  Sherman". 


My  reputation  as  a  teacher  became  much  "puffed  up" 
on  account  of  this  affair.  Captain  Bassett  also  became 
somewhat  inflated.  "At  last  he  had  found  a  teacher  who 
could  stay  in  the  Bassettsville  schoolhouse;  could  knock 
down  and  drag  out  Sid  Ellis",  etc.,  etc. 

My  reputation  was  not  only  established  with  the  pa- 
rents, but  the  heretofore  unruly  boys  became  my  friends. 
They  liked  a  teacher  who  could  wrestle,  box,  and  fight,  if 
necessary;  and  what  was  best  with  them,  could  handle 
their  ideal  hero,  Sidney  Ellis.  All  these  boys  turned  over 
a  new  leaf;  began  to  study  and  to  learn. 

Ellis  was  sick  for  a  while.  A  doctor  was  called  to  take 
a  few  stitches  in  his  head.  As  he  begun  to  improve,  his 
comrades  called  on  him  and  were  full  of  their  praises  of 
the  teacher.  Ellis  said  he  thought  more  of  the  teacher 
than  he  should  if  he  had  allowed  "us  boys  to  carry  him 
out  of  the  school ;  he  certainly  was  no  coward,  but  a  very 
good  fighter". 

After  Ellis  was  well  enough  to  be  out,  he  met  me  one 
day  in  the  highway.  I  spoke  to  him  pleasantly  and  he  re- 
plied in  the  same  spirit.  I  was  glad  that  he  was  not  seri- 
ously injured;  that  I  had  been  anxious  about  him,  and 


20  SOME  KECOLLECTIONS 

although  I  felt  justified  in  doing  what  I  did,  yet  I  should 
have  felt  very  badly  had  I  inflicted  upon  him  serious  and 
permanent  injury.  He  replied  that  I  did  just  right;  that 
he  had  no  one  to  blame  but  himself. 

As  we  were  about  to  separate,  he  asked,  "Can  I  come 
to  school  again"  ?  I  said,  "Do  you  want  to"  ?  "Certain- 
ly I  do",  was  his  quick  reply.  "You  can  come  by  making 
an  apology",  said  I.  "I  cannot  do  that;  I  should  make  a 
botch  of  it  if  I  tried",  said  he.  "You  can  come  back", 
said  I  "if  you  allow  me  to  state  before  the  scholars  that 
you  come  back  with  my  permission,  and  that  you  are 
truly  sorry  for  the  trouble  you  have  made". 

The  next  Monday  he  came,  and  the  statement  was  made. 

He  made  good  progress  in  his  studies  and  we  became 
quite  good  friends. 

No  teacher  was  ever  treated  with  more  consideration 
than  I  was  the  remainder  of  the  winter  by  Ellis  and  his 
companions. 

I  had  a  very  successful  school,  and  at  its  close  we  had 
quite  a  creditable  "exhibition",  for  a  country  school. 

I  was  offered  extra  pay  to  come  back  the  next  winter. 

I  taught  the  next  winter  in  another  part  of  the  same 
to^vn,  receiving  higher  wages,  and  had  pupils  more  ad- 
vanced in  their  studies. 

Ellis  afterwards  became  a  sea  captain  and  a  respected 
citizen.  He  was  lost  at  sea  in  a  great  storm  off  the 
Massachusetts  coast  in  the  winter  of  1874-5,  his  body  being 
washed  ashore. 

The  subsequent  year  I  taught  at  the  Chatham  Seminary 
in  the  adjoining  town  of  Chatham,  with  my  cousin,  Mary 
E.  Sherman,  as  an  assistant. 

The  winter  that  brother  Henry  and  I  taught  school  in 
Harwich,  he  played  a  good  joke  upon  me.  He  was  rather 
a  serious  minded  man,  not  much  given  to  joking.    He  was 


OP  A  LONG  LIFE.  21 


required  to  offer  prayer  each  morning  at  the  opening  of 
his  school.  I  said  to  him,  that  I  was  coming  to  his  school 
some  Saturday  when  mine  did  not  keep,  to  hear  him  pray. 
"All  right,  you  will  hear  a  good  prayer",  said  he.  Soon 
after,  I  went.  He  gave  me  a  seat  in  the  desk.  After  the 
scholars  had  read  in  the  Testament,  he  turned,  and  in  a 
loud  voice,  asked  me  to  offer  prayer,  which  I  felt  com- 
pelled to  do,  rather  than  decline. 


CHAPTER   II. 


MY  STAKT  m  LIFE. 


Know  IjTothingism^ — A  Victim  of  Its  Enemies. 

During  the  Know  ITothing  excitement,  I  was  living  in 
Lawrence,  and  although  not  old  enough  to  vote,  and  having 
nothing  to  do  with  the  organization,  I  fell  a  victim  of  its 
enemies. 

One  dark  evening,  while  coming  from  my  brother's  to 
my  father's  house,  I  was  set  upon  by  three  Irishmen, 
knocked  down  with  a  club  and  badly  kicked  and  beaten. 

When  I  recovered  from  the  effects  of  the  blow  upon  my 
head,  I  found  myself  lying  on  the  gi'ound  bleeding.  I 
sprang  to  my  feet  and  commenced  to  defend  myself  as  best 
I  could,  and  called  for  help. 

I  knocked  one  of  the  men  down,  then  ran  to  my  brother's 
house,  a  short  distance  away.  He  came  back  to  the  spot, 
but  the  men  had  disappeared.    I  was  quite  badly  injured. 

Very  soon  an  exaggerated  account  of  the  affair  appeared 
in  the  newspapers.     It  was  a  big  story  in  print. 

I  have  no  doubt  the  assault  was  intended  for  another 
member  of  the  family,  a  brother,  who  was  a  member  of 
the  "American  party",  as  it  was  called. 

The  mayor  and  aldermen,  hearing  of  the  incident,  sub- 
sequently appointed  me  a  police  officer,  which  was  con- 
sidered by  some  of  my  young  friends  as  a  great  honor. 


OF  A  LONG  LIFE.  23 


Dartmouth  College. 

I  was  born  mthin  thirty  miles  of  Dartmouth  College, 
and  it  was  the  dearest  wish  of  my  young  life  to  enter  and 
graduate  at  that  institution.  I  was  given  some  little  en- 
•couragement  by  my  parents,  provided  it  did  not  cost  too 
much. 

I  went  to  Hanover,  was  examined  sufficiently  to  deter- 
mine my  qualifications  to  enter,  selected  a  room,  and 
ascertained  the  probable  expense.  I  returned  home  in  high 
spirits,  but  upon  stating  the  cost,  the  amount  of  ready 
money  required,  my  father  said  at  once  that  he  could  not 
afford  the  expense;  that  it  would  not  be  fair  and  just  to 
the  other  children,  and  that  I  could  not  go.  Imagine  my 
disappointment!  My  mother  and  I  cried  over  it.  I  de- 
termined that  later  I  would  go ;  that  I  would  keep  up  my 
studies,  work  summers,  teach  school  winters,  until  I  saved 
money  enough  to  pay  my  own  expenses.  And  I  never  gave 
up  the  idea  until  I  was  admitted  to  the  bar.  I  was  then  in 
debt  about  one  thousand  dollars  and  it  seemed  a  great  load 
to  carry. 

In  1884,  when  I  was  Attorney  General,  the  trustees  of 
Dartmouth,  learning  of  the  above  circumstances,  con- 
ferred upon  me  the  honorary  degree  of  Master  of  Arts. 

I  should  have  preferred  to  have  earned  the  degree 
within  the  College,  but  it  was  some  satisfaction  to  know 
that  others  believed  I  had  earned  it  outside. 


Admission  to  the  Bab. 

In  the  month  of  March,  1855,  I  entered  the  law  office  of 
■George  W.  Benson,  Esq.,  on  Essex  Street,  Lawrence,  and 
remained  there,  except  when  away  teaching,  until  I  was 
admitted  to  the  Essex  Bar,  in  March,  1858. 


24  SOME  EECOLLECTIONS 

The  Weekly  American  of  August  9,  1856,  contained 
the  following: 

"An  ancient  adage  is  to  the  import  that  while  young 
men  are,  on  account  of  their  superior  strength,  agility 
and  courage,  to  be  preferred  in  an  engagement  of  war, 
old  men,  in  view  of  the  experience,  observation  and  wis- 
dom, are  to  be  chosen  as  counsel  in  all  matters  of  moment 
or  importance. 

But  although  this  may  be  safe  as  a  general  rule,  there 
are  instances  when  young  men,  possessing  the  tact,  knowl- 
edge and  ability,  can  render  important  services  as  counsel 
where  an  opportunity  presents  itself  for  them  to  show  the 
gift  that  is  within  them. 

On  Tuesday  of  last  week,  learning  that  a  young  man 
by  the  name  of  Patrick  Clarke,  charged  with  stealing  a 
gold  watch,  valued  at  $100,  from  Mr.  Samuel  F.  Barker 
of  Andover,  was  to  be  tried  in  our  Municipal  Court  and 
that  our  young  friend,  Edgar  J.  Sherman,  student  of 
George  W.  Benson,  Esquire,  was  to  act  as  counsel  for  the 
prisoner, — it  being  also  his  first  attempt  in  the  manage- 
ment of  a  case  in  Court, — I  had  the  curiosity  to  be  present 
at  the  trial.  And  I  do  not  hesitate  to  say  that  in  the 
opening  of  the  case  for  the  defence,  in  the  examination 
of  witnesses,  in  discussing  the  admissibility  of  testimony, 
and  in  the  summing  up  of  the  evidence  in  the  argument, 
Mr.  Sherman  reflected  credit  upon  himself  and  his  pre- 
ceptor ;  showing  not  only  that  he  has  been  a  diligent  and 
thorough  student  of  law,  but  also  has  superior  ability  and 
aptness  for  the  business  and  duties  of  the  profession  which 
he  has  so  wisely  chosen. 

It  is  always  gratifying  to  witness  the  development  of 
genius  and  talent  in  young  men  who  are  to  come  forward 
in  the  activities  of  life,  and  especially  in  such  as,  in  ad- 
dition to  natural  and  acquired  abilities,  possess  those 
moral  qualities,  which  alone  can  embellish  and  beautify 
the  human  character". 

In  the  same  paper,  under  date  of  March  20,  1858,  the 
following  appeared. 


OF  A  LONG  LIFE.  25 


"Admitted  to  the  Bar. 

At  the  opening  of  the  Court  of  Common  Pleas  in  this 
city,  on  Wednesday  morning,  March  17th,  on  the  motion 
of  Honorable  Thomas  Wright,  Edgar  J.  Sherman,  was 
admitted  to  practice  in  all  the  courts  of  the  Common- 
wealth. 

Mr.  Sherman  is  a  young  man  of  much  ability;  has 
acquired  a  good  knowledge  of  the  law,  and  bids  fair  to 
win,  what  we  hope  may  be  his, — a  goodly  degree  of  suc- 
cess in  his  profession". 

At  a  subsequent  day  of  the  same  term  of  court,  among 
the  reports  of  cases,  in  the  same  paper,  the  following  ap- 
peared : 

"Court  of  Common  Pleas. 

Before  Chief  Justice  Mellen. 

William  D.  Lamb  vs.  Thomas  Coupe. 

Plaintiff  sues  to  recover  for  services  rendered  defend- 
ant's wife ;  defendant  claims  that  his  wife  left  his  bed  and 
board  contrary  to  his  wishes,  while  he  was  providing  her 
with  a  physician,  and  that  the  plaintiff  was  employed 
without  his  order  or  consent. 

Verdict  for  the  defendant. 

P.  S.  Chase,  for  plaintiff. 

E.  J.  Sherman,  for  defendant." 

This  was  my  first  case  tried  before  a  jury. 


Death  of  my  Mothee. 

Upon  being  admitted  to  the  Bar,  I  formed  a  copartner- 
ship with  the  Hon.  Daniel  Saunders,  under  the  firm  and 
style  of  "Saunders  and  Sherman". 

I  was  then  in  debt  about  $1,000.  I  had  borrowed  money 
of  friends  to  obtain  an  education  and  to  qualify  myself  for 
my  profession. 


26  SOME  KECOLLECTIONS 

I  have  a  note,  now  in  my  possession,  dated  July  2, 
1855,  signed  by  me  and  endorsed  by  my  mother.  I  prize 
that  note  very  much,  and  after  paying  it,  have  kept  it. 

At  first  I  was  disposed  to  blame  my  father  because  he 
did  not  furnish  the  money  to  help  me  through  college.  But 
as  I  look  back  upon  the  matter  now,  I  feel  that  he  did 
right. 

My  mother  died  October  30,  1858,  of  consumption.  I 
was  very  fond  of  her.  I  think  there  was  more  than  the 
ordinary  affection  between  mother  and  son. 

I  went  with  her  that  summer  to  visit  the  old  home- 
stead in  Weathersfield,  Vermont,  and  her  friends.  She 
was  quite  feeble  and  suffered  a  great  deal.  It  was  her  last 
visit. 

After  returning  to  Lawrence  she  failed  very  fast.  She 
was  at  the  home  of  my  sister,  Mrs.  Malvina  E.  Backus. 
She  had  the  constant  care  of  my  father,  my  sister  and  my- 
self. We  did  all  we  could  for  her,  but  were  compelled  to 
see  her  suffer,  waste  away  and  die  of  that  fatal  disease. 

I  felt  her  loss  severely. 

"I  felt  myself  alone, 
Alone  on  earth,  with  none 

to  love  like  thee ; 
A  love  so  pure,  so  deathless, 

and  so  free". 

Whatever  success  in  life  I  have  attained,  I  feel  I  owe 
much  to  my  good  mother. 

As  a  boy,  whenever  I  was  disposed  to  be  in  mischief 
and  go  wrong,  it  was  her  kindness  and  tears  that  did  more 
to  make  me  do  right,  than  all  the  corporeal  punishment  I 
received  from  others. 


OF  A  LONG  LIFE.  27 


Mareiage. 

On  the  twenty-fourth  day  of  !N'ovember,  1858,  I  was 
married  to  Abbie  Louise  Simmons,  second  daughter  of 
Stephen  P.  Simmons. 

My  wife  was  quite  young,  eighteen  the  following 
Christmas,  but  she  took  me  to  her  father's  house  and  they 
gave  us  board  and  lodging. 


Appointment  as  Cleek  of  the  Police  Couet. 

On  December  the  14th  of  the  same  year,  I  was  ap- 
pointed by  the  Mayor  (General  Henry  K.  Oliver)  and 
Aldermen,  Clerk  of  the  Police  Court  for  a  period  of  three 
years. 

The  statute,  chapter  270  of  the  Acts  of  1855,  provided 
that  "the  clerk  shall  examine  the  witnesses  in  criminal 
prosecutions,  and  conduct  the  cause  on  the  part  of  the 
government ;  and  he  shall  receive  in  full  compensation  for 
all  his  services  under  this  Act,  an  annual  salary  of  not  less 
than  $800,  and  be  paid  quarterly  out  of  the  city  treasury". 
The  act  also  provided  that  the  clerk,  as  justice  of  the 
peace,  shall  receive  and  hear  all  complaints,  and  issue  all 
warrants  and  processes  in  all  criminal  matters  which  come 
before  said  court  and  shall  make  the  same  returnable 
thereto". 

The  ojfice  was  an  important  one.  On  February  14, 
1861,  I  resigned  the  position  and  my  brother  Henry  was 
appointed  for  the  unexpired  term.  I  resigned  that  I 
might  devote  all  my  time  to  my  profession. 


28  some  recollections 

My  Paetnee,  Hon.  Daniel  Saundees,  Elected  Mayoe  ; 
Fall  of  Pembeeton  Mills. 

At  the  City  election,  early  in  December,  1859,  my  part- 
ner, Hon.  Daniel  Saunders,  was  elected  mayor.  On  the 
first  Monday  of  January  following  (1860),  he  was  in- 
augurated. 

On  the  tenth  day  of  the  same  month,  just  before  five 
o'clock  in  the  afternoon,  while  Mr.  Saunders  and  I  were 
in  our  law  office  on  Essex  street,  we  heard  a  loud  noise, 
like  snow  sliding  from  the  roof  of  a  building.  In  a  few 
moments  afterwards,  Thomas  Wright  rushed  into  the 
office,  and  said,  "The  Pemberton  Mills  have  fallen  to  the 
ground !" 

We  hastened  to  the  mills,  a  quarter  of  a  mile  away,  and 
there  witnessed  a  heart-rending  scene. 

A  brick  mill,  five  stories  high,  eighty-four  feet  wide,  and 
two  hundred  and  eighty  feet  long,  containing  nine  hun- 
dred persons,  nearly  six  hundred  of  whom  were  women 
and  children,  while  the  mill  was  in  full  operation,  without 
notice  or  warning,  had  fallen  to  the  ground.  The  cries 
of  the  wounded  and  dying  were  terrible.  They  came  from 
all  sides;  from  the  unfortunate  victims,  coming  out,  with 
limbs  broken,  from  others  confined  and  crushed  by  fallen 
timbers  and  machinery,  from  mothers  looking  for  their 
children,  and  children  calling  for  their  mothers,  the  wife 
for  her  husband  and  the  husband  for  his  wife. 

Brave  and  resolute  men  went  immediately  to  work  to 
relieve  those  confined  in  the  ruins. 

Later,  a  lantern  was  broken  and  a  fire  broke  out,  and 
many  perished  by  the  flames.  Eighty-three  people  were 
killed ;  one  hundred  and  nineteen  severely  injured ;  one 
hundred  and  fifty-nine  slightly  injured  and  five  hundred 
and  fifty-seven  escaped  uninjured. 


OF  A  LONG  LIFE.  29 


Hon.  Charles  S.  Storrow,  treasurer  of  the  committee  of 
relief  of  the  sufferers  of  the  calamity,  in  his  report,  says : 

"Other  features  there  were  in  the  drama  which  struck 
no  less  forcibly  those  who  were  brought,  as  we  were,  into 
close  contact  with  the  sad  events,  and  must  not  be  for- 
gotten. Deeds  of  heroism  on  that  awful  night;  charity 
melting  most  selfish ;  sympathy  aroused  in  the  coldest 
hearts;  strength  nerving  the  feeblest  arm;  patient  endur- 
ance on  the  part  of  the  wounded ;  quiet  resignation  in  the 
hearts  of  the  mourners;  all  these  were  as  extraordinary 
as  the  occasion  which  called  them  forth.  'Save  ITash 
first',  was  the  cry  of  Lizzie  Flint,  a  bright  young  girl  of 
sixteen,  an  only  daughter,  who  had  brought  from  her 
home  in  the  interior  of  Maine  the  character  that  belongs 
to  the  rural  homes  of  ISTew  England.  Poor  I^ash,  who  lay 
severely  injured,  was  indeed  saved.  The  poor  girl  did  not 
survive ;  but  who  shall  say  she  was  not  saved  also  ?  'Give 
this  to  father;  I  shan't  see  him,  but  you  will',  said  little 
Mary  Ann  Brennan,  an  Irish  child  of  ten  years,  to  the  girl 
near  her,  as  she  gave  the  pay  roll  certificate  which  she 
had  received  that  day.  The  girl  escaped,  and  the  partly 
burnt  paper  was  given  to  the  father.  Mary  Ann  was  never 
seen  again". 

The  spirit  of  charity  was  felt  at  once.  Money  came  im- 
mediately from  all  parts  of  !N^ew  England  and  from  other 
States.  It  came  so  fast  and  in  such  large  amounts,  that 
on  January  23rd,  the  Mayor  and  Committee  issued  a 
circular  letter  saying  that  they  had  received  all  that  would 
be  needed, — more  than  $66,000. 

A  coroner's  jury  examined  into  the  cause  of  the  calam- 
ity, which  was  reported  to  be  the  use  of  too  weak  pillars. 


30  SOME  EECOLLECTIONS 


Head  Examined  by  Peofessoe  O.  S.  Fowlee. 

In  April,  1860,  Professor  Fowler,  of  ITew  York,  was  in 
Lawrence  delivering  lectures  on  Phrenology  and  making 
phrenological  examinations.  I  knew  but  little  concerning 
the  subject,  but  was  anxious  to  learn. 

John  Milliken  (since  deceased),  at  that  time  a  student 
at  law,  was  a  young  man  of  ability,  an  excellent  scholar, 
and  a  bright  man,  but  not  prepossessing  in  appearance, 
in  fact  he  looked  almost  idiotic.  I  agreed  with  Milliken, 
if  he  would  go  with  men  to  Fowler's  room,  without  speak- 
ing a  word  himself,  and  be  examined,  I  would  pay  the 
expense.  We  went  together.  I  told  Professor  Fowler,  my 
subject  was  not  to  speak,  and  he  did  not ;  but  Fowler  told 
Milliken's  characteristics  perfectly. 

I  felt  so  much  confidence  in  that  examination  that  I  sat 
down  and  had  my  own  head  examined.  Professor 
Fowler's  report  was  as  follows : 

"Phrenological  Character  of  Edgar  J.  Sherman,  given  by 
Professor  0.  8.  Fowler,  April  26,  1860. 

(Taken  by  a  stenographer  and  afterwards  written  out.) 

"You  are  just  as  certain  to  rise  in  the  world  as  to  live, 
and  quite  certain  to  live  unless  you  really  abuse  the  health 
laws,  for  your  natural  life  pluck  hold  is  certainly  strong. 
Your  mental  temperament  predominates ;  should  live  by 
mind,  not  muscle;  should  get  a  liberal  education;  should 
be  a  public  speaker;  can  make  a  good  writer;  excel  in 
composition  and  are  far  best  adapted  to  the  study  of  law. 
Your  forte  is  argument ;  you  excel  in  putting  this  and  that 
together  and  drawing  inferences;  yours  is  a  logical,  ana- 
lytical mind,  always  have  been  a  thinker,  a  reasoner ;  are 
a  natural  investigator  of  both  facts  and  law.  You  illus* 
trate,  compare,  well ;  argue  well  by  ridicule ;  have  a  first- 
rate    memory    of    facts,    and    it    is    improving;    have    a 


OF  A  LONG  LIFE.  31 


wretchedly  poor  memory  of  names  and  dates,  but  a  good 
one  for  faces,  facts  and  places,  and  know  hundreds  by 
sight  and  all  about  them,  but  their  names.  Are  good  in 
giving  counsel.  Are  endowed  with  excellent  taste.  Have 
a  glowing  imagination  .  .  .  feel  the  utmost  con- 
fidence in  your  own  powers,  as  if  you  were  a  commander ; 
are  most  indomitably  persevering;  will  carry  your  point; 
are  signally  wanting  in  belief  and  a  real 
Doubting  Thomas;  are  doing  your  own  thinking  and  all 
of  it  for  yourself;  the  minister  does  none  of  it  for  you. 
Have  that  versatility  of  talent  to  attend  to  a  variety  of 
things  in  short  order.  Are  fond  of  approbation;  do  best 
when  approved  most.  Are  good  in  making  money  and 
tolerably  good  in  keeping  it,  at  least  becoming  better.  Are 
extremely  cautious  and  run  no  risks,  but  make  everything 
perfectly  safe.  Are  a  good  linguist,  but  cannot  talk 
against  time ;  must  talk  ideas  or  say  nothing.  Adapted  to 
success  in  life,  and  especially  at  the  bar ;  if  not  a  lawyer, 
turn  today  and  begin  the  study  of  that  profession  and  are 
calculated  to  rise  and  stand  high  in  that  profession". 


CHAPTER  in. 


IN  THE  CIVIL  WAR. 


Enlistment  and  Depaktuee. 

In  1861  the  War  of  the  Rebellion  came  upon  us.  The 
march  of  the  old  Sixth  Regiment  from  Lawrence 
through  Baltimore  to  the  Capitol  at  Washington  is  read 
and  known  by  all. 

ISTeedham  Encampment,  Post  39,  Grand  Army  of  the 
Republic,  situate  in  Lawrence,  was  named  in  honor  of 
Sumner  H.  Needham,  one  of  the  victims  of  that  march. 

By  a  rule  of  the  Post  each  member  was  required  to  give 
a  reminiscence  of  the  war.  In  June,  1871,  I  read  a  paper 
as  follows: 

Mr.  Commander,  Comrades,  Ladies  and  Gentlemen: 
All  good  soldiers,  conscripts,  raw  recruits  and  veterans 
are  supposed  to  obey  orders;  on  account  of  that  I  stand 
here  tonight. 

I  find  myself  greatly  embarrassed  in  talking  about  the 
war,  as  what  I  say  must  necessarily  be  of  a  personal  char- 
acter, and  by  attempting  to  tell  what  I  have  seen  and 
heard  with  my  limited  service,  especially  in  the  presence 
of  many  veterans  of  the  war,  will  seem  common-place  in- 
deed. 

When  I  was  first  appointed  to  speak  on  this  occasion, 
I  concluded  from  what  I  had  heard  from  some  others 


OF  A  LONG  LIFE.  33 


who  had  preceded  me  in  this  hall,  that  it  would  do  to 
stretch  the  truth  a  little  in  order  to  make  a  good  story  and 
interest  the  audience. 

This  feeling  was  but  momentary,  as  I  recalled  the  story 
of  the  hatchet  and  cherry  tree  in  connection  with  the 
boy,  George  Washington,  and  I  at  once  resolved  not  to  tell 
a  lie.  Therefore  whatever  I  say  can  be  placed  on  the  shelf 
with  the  hatchet  and  the  cherry  tree. 

I  desire  to  state,  to  begin  with,  that  I  do  not  claim  that 
my  company,  regiment,  brigade,  division  or  corps,  was  the 
hest  in  the  service,  or  that  I  marched  through  Baltimore 
with  the  Old  Sixth,  or  that  I  enlisted  at  the  beginning  of 
the  war  and  served  to  its  close,  or  that  I  was  wounded  at 
Gettysburg  or  in  the  Wilderness.  These  are  honors  which 
I  am  not  entitled  to. 

But  I  do  claim  to  have  done  something  towards  saving 
my  country;  to  have  been  one  in  that  gi'eat  army  of  pa- 
triots, who  helped  to  stay,  beat  back,  and  conquer,  the 
greatest  rebellion  the  world  ever  saw. 

To  be  enrolled  as  one  of  the  humblest  in  such  an  army, 
in  such  a  cause  is  honor  enough  for  any  man. 

At  the  first  drum  beat  I  determined  to  enlist,  but  I 
had  a  better-half,  and  some  little  halves,  and  when  I  made 
known  my  purpose  at  home,  I  experienced  "trying  to  be 
a  soldier  under  difficulties". 

Of  course  I  cannot  go  into  particulars.  It  will  be 
sufficient  for  me  to  say  that  I  had  always  been  in  favor  of 
women's  rights  and  women's  suffrage.  I  was  summarily 
voted  down.  I  consoled  myself  with  two  passages  of 
scripture,  which  an  old  lady  said  she  admired,  "Husbands 
obey  your  wives"  and  "grin  and  bear  it". 

Like  a  good  husband  I  remained  at  home  and  tried  to 
attend  to  the  duties  of  my  profession,  but  it  was  of  no  use. 


34  SOME  EECOLLECTIONS 


I  read  the  newspapers,  the  war  news.  I  could  read  or  do 
nothing  else. 

In  the  Slimmer  of  1862  I  went  west  on  business,  and 
upon  returning  found  that  two  companies  had  been  en- 
listed from  Lawrence  and  that  many  of  my  friends  had 
already  gone,  not  to  the  war  exactly,  but  into  camp  at 
Wenham  in  this  county. 

I  went  directly  to  camp  and  enlisted  as  a  private 
soldier  and  then  came  home.  It  was  then  too  late  to  discuss 
the  question.  Later  on  I  was  elected  Captain  of  the  com- 
pany. 

We  remained  in  camp  a  while,  then  went  to  jSTew  York 
and  took  passage  on  board  the  old  sailing  ship  "Constella- 
tion", for  nobody  knew  where,  except  the  captain,  but  as 
it  afterwards  appeared,  for  ISTew  Orleans. 

The  day  we  left  camp,  a  Mrs.  Stickney,  wife  of  one  of 
the  sergeants  of  my  company,  came  to  say  good-by  to  her 
husband,  and  as  she  was  manifesting  feeling  and  experi- 
encing what  many  a  wife,  mother,  sister  and  sweetheart 
felt  and  experienced  on  such  occasions,  I  tried  to  comfort 
her.  "Why",  said  I,  "Mrs.  Stickney  do  not  fell  so  badly, 
I  expect  to  bring  back  your  husband  safe  and  sound" ! 
"Yes",  said  she,  bursting  into  tears  again,  "I  should  be- 
lieve that,  if  you  were  going  on  any  other  business  except 
to  kill  and  be  killed". 

I  came  to  Lawrence  that  day  and  bade  my  wife  and 
friends  good-by,  and,  I  must  confess,  as  I  walked  across 
our  Common  for  the  depot,  I  felt  that  I  was  leaving  home 
under  different  circumstances  from  any  I  had  experienced 
before,  and  the  words  of  Mrs.  Stickney  were  constantly 
ringing  in  my  ears. 


OF  A  LONG  LIFE.  35 


A  BuKiAL  AT  Sea. 

The  first  few  days  on  shipboard,  we  had  a  rough  time 
of  it.  After  we  had  been  at  sea  a  week  or  more,  a  member 
of  my  company  was  suddenly  taken  ill. 

The  surgeon  was  immediately  called  and  everything 
done  for  him  which  possibly  could  be  with  good  care  and 
attention,  but  it  was  all  of  no  avail.  He  died  within 
twenty-four  hours  of  ship  fever.  ISTow  came  a  solemn 
time  for  us  all.     Others  were  taken  ill  in  the  same  way. 

Here  lay  our  comrade,  his  eyes  closed  in  death  and  we 
must  bury  him  with  proper  ceremony  beneath  the  waves 
of  the  ocean.  There  must  be  one  of  those  most  solemn  of 
all  services, — a  burial  at  sea. 

Our  chaplain  had  not  joined  us  and  we  had  no  clergy- 
man on  board.  An  Episcopal  prayer-book  was  found  in 
the  cabin  and  suitable  selections  were  made.  The  hour 
selected  for  the  services  was  at  sunset. 

Our  comrade,  who  had  been  dressed  in  his  military 
uniform,  with  blanket  wrapped  about  him,  with  some 
heavy  pieces  of  coal  fastened  to  his  feet  in  order  to  cause 
the  body  to  sink,  was  brought  on  deck  and  placed  upon  a 
plank  at  the  side  of  the  rail. 

The  ship  had  stopped  in  its  outward  course,  all  was 
still,  as  we  his  comrades  assembled  on  deck  to  pay  our  last 
tribute  of  respect  to  the  dead. 

Perhaps  what  was  read  or  said  on  that  occasion  does 
not  become  the  acting  chaplain  to  speak  of.  This  much  I 
shall  be  justified  in  saying,  that  it  was  a  sad  and  sacred 
hour.  As  the  services  were  concluded,  as  the  sun  in  all 
its  brightness  was  sinking,  as  it  seemed  into  the  ocean, 
the  body  of  our  comrade  slid  from  the  plank  feet  foremost 
down  over  the  side  of  the  ship  with  a  loud  splash  into  the 
ocean,  and  disappeared  forever. 


36  SOME  RECOLLECTIONS 

But  the  saddest  part  was  not  yet  over,  the  youthful 
soldier  was  the  only  child  of  a  widowed  mother,  who  had 
reluctantly  consented  to  his  enlistment,  only  upon  the 
promise  that  I  would  take  good  care  of  her  boy.  She 
must  be  informed  of  his  death ;  what  could  I  say  to  com- 
fort her  in  this  hour  of  her  terrible  affliction. 


Letter  to  a  Bereaved  Mother. 

I  wrote  her  as  follows: 

On  Board  the  Ship  Constellation, 
In  Gulf  of  Mexico. 

January  24,  1863. 
My  Dear  Madam: 

I  have  sad  news  to  communicate.  Your  son  is  no  more 
on  this  earth.  He  was  taken  sick  last  Wednesday,  and  in 
less  than  twenty-four  hours  he  was  a  corpse.  He  died  at 
4  o'clock,  P.  M.  on  Thursday  and  was  buried  at  sunset  in 
the  Gulf  Stream,  off  coast  of  Florida,  in  latitude  25,  long- 
itude 20  west. 

Let  me  assure  you  that  everything  possible  was  done 
for  him,  by  his  comrades  and  our  good  surgeon,  Dr.  Hurd, 
to  save  him  from  the  ravages  of  ship  fever,  but  all  our 
efforts  were  in  vain.  The  light  of  his  youthful  counte- 
nance has  gone  out  forever. 

What  can  I  say  to  you,  his  good  mother,  who  gave  her 
only  son  an  offering  upon  the  altar  of  our  common 
country  ? 

A  fond  mother  will  desire  the  sad  details,  his  last  acts 
and  words.  An  hour  before  he  died,  I  told  him  the  doctor 
feared  that  he  could  not  live.  He  seemed  to  be  fully  aware 
of  his  condition,  and  turnins:  his  head  toward  me  he  said, 
tell  mother  I  should  rather  have  died  fighting  the  battles 
of  my  country,  but  God's  will  be  done.  I  die  happy.  Very 


OF  A  LONG  LIFE.  37 


soon  he  drew  his  blanket  over  him,  and  calmly  sank  into 
the  arms  of  death,  like  one  drawing  the  drapery  of  his 
couch  about  him  and  lying  down  to  pleasant  dreams.  His 
last  thoughts  were  of  his  mother,  and  he  died  lamenting 
only  his  inability  to  do  more  for  his  country.  He  was  a 
mere  boy  in  age  and  looks,  but  he  had  the  judgment  of 
an  older  patriot. 

There  are  many  creeds,  which  will  tell  you,  that  your 
son  has  not  gone  to  happiness  or  heaven.  He  lived  an 
honest  life,  but  died,  according  to  those  creeds  uncon- 
verted. 

"The  upright,  honest-hearted  man, 
Who  strives  to  do  the  best  he  can, 
Need  never  fear  the  church's  ban 

Or  Hell's  damnation; 
For  God  will  need  no  special  plan 
For  his  salvation". 

He  died  full  of  faith  and  hope,  with  a  belief  that  he 
had  performed  his  whole  duty  to  his  country  and  his  God, 
and  I  believe  in  the  language  of  the  Mayor  of  one  goodly 
city: 

"He  was  a  soldier  in  a  good  cause,  and  at  the  command 
of  the  Supreme  Governor  he  had  laid  down  his  arms  and 
gone  up  higher.  Watchworn  and  weary,  he  has  lain  his 
armor  off  and  rests  in  Heaven.  The  everlasting  gates  of 
Fame  have  lifted  up  their  heads  and  he  has  passed 
through  to  imperishable  reno^\Ti:  The  portals  of  History 
have  been  thrown  wide  open  and  he  has  marched  in  a 
hero". 

Think  then  of  your  darling  boy,  not  dead,  but  as  hav- 
ing gone  over  to  the  majority  in  Heaven. 

Permit  me,  my  dear  madam,  to  mingle  my  tears  in 
sympathy  with  yours  in  this  hour  of  your  great  affliction. 

May  God  bless  and  comfort  you. 

I  am  sincerely  and  affectionately  yours, 

Edgae  J.  Sherman,  Captain, 


38  SOME  KECOLLECTIONS 

After  returning  home,  I  was  met  by  the  clergyman  who 
officiated  at  the  funeral  of  the  young  soldier,  who  said, 
"Captain,  I  read  your  letter  at  the  funeral  and  I  do  not 
think  there  was  a  dry  eye  in  the  audience."  "But",  said 
I,  "did  you  not  regard  the  poetry  as  heretical"  ?  "You  are 
fully  justified",  said  the  clergyman,  "in  writing  anything 
you  could  to  comfort  that  poor  heart-broken  mother.  But 
who  knows  that  he  died  unconverted  ?  Were  not  his  last 
words,  'God's  will  be  done'  "  ? 


Aekival  in  Louisiana. 

On  our  way  to  !N'ew  Orleans  we  passed  Forts  Jackson 
and  St.  Phillip  situated  on  either  side  of  the  Mississippi 
river,  seventy  miles  below  the  city,  which  had  been  re- 
cently silenced  and  captured,  with  the  whole  confederate 
Navy  Iron  Clads,  Rams,  etc.,  by  that  brave  old  Admiral, 
David  G.  Farragut.  The  forts  are  low,  dirty  looking 
things,  down  in  the  mud.  They  do  not  stand  boldly  out 
like  our  northern  forts. 

At  last  we  reached  the  famous  city  that  Farragut  had 
captured  and  General  Butler  had  subdued  and  conquered 
into  obedience. 

Whatever  may  be  thought  and  said  of  General  Butler, 
he  was  certainly  the  man  to  control  that  turbulent  city. 

I  found  that  all  loyal  men  in  ]^ew  Orleans  liked  him 
and  all  disloyal  men  hated  him.  Admiral  Farragut  and 
General  Butler  acted  harmoniously  together. 

Our  regiment  was  stationed  for  a  while  at  Baton 
Rouge,  the  capital  of  Louisiana. 

I  was  taken  sick  of  malarial  fever  and  sent  to  the  hos- 
pital. During  that  time  our  troop  moved  on  Port  Hudson. 

If  there  is  anything  which  lies  close  to  a  soldier's  heart 


'■J'iE 


CAPTAIN    SHERMAN 
After  a  severe   illness  at   New  Orleans,  August,  '63 


OF  A  LONG  LIFE.  39 


it  is  the  reputation  of  his  own  regiment  for  good  conduct 
in  the  hour  of  battle.  If  that  is  affected  injuriously  his 
pride  is  touched. 

Very  soon  news  came  of  a  fight  near  Port  Hudson,  of 
our  temporary  success,  but  with  it  sad  news  concerning 
my  regiment. 

The  regiment  had  been  surprised  and  fired  into  by  a 
rebel  brigade  which  lay  in  ambush,  and  the  report  was 
that  my  regiment  had  not  behaved  well. 

My  feeling  can  be  better  imagined  than  described.  I 
determined  to  leave  the  hospital  at  once  and  join  the  reg- 
iment, but  the  surgeon  forbade  it,  saying  that  I  was  crazy, 
and  I  am  inclined  now  to  think  I  was  partially. 

The  fever  had  left  me,  but  I  was  extremely  thin  and 
weak,  having  lost  about  thirty  pounds  in  weight.* 

But  I  could  remain  no  longer  with  such  news !  The  next 
morning  I  left  the  hospital  without  the  knowledge  and 
without  obtaining  leave  of  the  surgeon  and  took  the  early 
•steamboat  for  Springfield  Landing,  five  miles  below  Port 
Hudson. 

If  ever  a  man  had  trouble  in  reaching  his  regiment  I 
did.  I  was  like  the  Dutchman's  pies,  really  a  good  deal 
better  than  I  looked.  One  of  the  surgeons  at  the  landing 
ordered  me  back  to  the  hospital,  saying  that  a  "Walking 
Ghost"  would  be  of  no  use  there.  I  pleaded  that  I  was 
not  going  on  duty,  but  only  to  visit  the  surgeon  of  my 
regiment. 


The  Battle  of  June  14th,  1863. 

Upon  reaching  Port  Hudson,  I  found  that  my  regiment 
had  fully  redeemed  itself.     In  an  assault  upon  the  Fort 

*See  photograph  on  opposite  page. 


40  SOME  EECOLLECTIONS 

they  had  volunteered  to  lead  the  forlorn  hope,  in  which 
the  Lieutenant-Colonel  and  many  officers  and  men  had 
been  killed  and  many  wounded. 

On  Saturday,  June  13,  I  became  satisfied  that  on  the 
next  day  there  was  to  be  another  assault  on  the  enemy's 
works,  I  had  not  yet  been  on  duty.  I  had  had  work 
pleading  with  our  surgeon  and  my  superior  officers  tO' 
allow  me  to  join  in  this  assault.  Dr.  Ilurd  said  to  me, 
if  you  go  you  will  probably  be  most  of  the  time  to-night 
marching  to  your  position,  and  then  if  you  go  through  the 
assault  tomorrow,  if  you  are  not  killed,  your  fever  w^ill 
return,  and  I  fear  you  will  leave  your  bones  in  Louisiana. 
In  fact,  I  never  obtained  consent  to  go  into  that  assault, 
I  went  without  it.  We  did  march  a  good  part  of  the 
night,  getting  from  our  positions  in  front  of  the  works, 
down  on  the  left  below  the  fort  near  the  river,  where  at 
three  o'clock  in  the  morning  we  tried  to  get  a  little  rest  and 
sleep.  I  never  could  have  reached  that  point  had  it  not 
been  for  the  help  I  received  from  the  men  of  my  com- 
pany, some  of  the  time  having  one  on  each  side  helping 
me  along  in  the  darkness.  Soon  after  four  o'clock, 
Sunday,  June  14,  we  were  ordered  into  position,  prepar- 
atory to  a  charge.  We  were  in  close  column  of  division, 
two  companies  together,  and  my  division  had  the  colors. 
While  we  waited  the  skirmishers  advanced,  and  soon 
after  the  first  Brigade  went  forward  upon  the  double 
quick.  From  our  position  we  could  look  onto  the  field  and 
see  how  hot  a  place  it  was. 

Oh,  that  awful  suspense!  !N"o  coffee,  no  breakfast, 
after  a  night's  march,  a  tough  time  for  an  invalid  from 
the  hospital.  Still  the  men  stand  in  position  and  wait. 
I  felt  so  badly  I  could  not  stand.  I  lay  dowTi  with  my 
head  a  little  raised,  so  I  could  see  what  was  going  on. 
After  a  little  I  felt  faint  and  so  bad  that  I  tried  to  get 


OF  A  LONG  LIFE.  41 


up,  but  I  could  not  do  it.  Then  I  began  to  think  what  an 
awful  thing  for  me  it  would  be  to  have  the  troop  charge 
without  me,  and  that  I  would  have  shown  more  sense  by 
remaining  in  the  hospital. 

It  was  a  beautiful  Sabbath  morning;  the  sun  was  just 
shining  forth  upon  the  field  over  which  we  were  to  charge, 
as  a  staff  officer  rode  forward  to  Colonel  Benedict,  who 
was  in  conunand  of  our  Brigade,  and  said,  "The  General 
desires  you  to  move  your  brigade  forward".  I  came  to  my 
feet,  took  my  position,  feeling  perfectly  well. 

'Now  we  move  forward,  what  a  magnificent  sight,  the 
bayonets  glisten  in  the  sun-light,  the  roar  of  our  own 
cannon  and  those  of  the  enemy,  with  the  bursting  shells, 
fill  the  air  with  loud  thunder  and  lightning. 

Almost  at  the  start  our  adjutant  is  severely  wounded, 
almost  by  my  side ;  on  we  go  up  the  hill.  Captain  Todd 
in  command  of  the  division  in  front  of  mine  now  falls 
and  we  go  over  his  body.  The  enemy  are  now  using 
grape  and  canister,  a  cross  fire,  and  our  men  are  falling  as 
we  go,  still  on  we  go  close  to  the  ditch  in  front  of  the 
enemy's  earthworks,  but  we  cannot  scale  the  ditch  as  the 
men  are  not  there  with  the  fascines  with  which  to  fill  the 
ditch.  Oh,  what  a  disappointment!  We  have  failed  to 
enter  the  works. 

We  are  ordered  to  fall  back  and  protect  ourselves  be- 
hind logs,  stumps,  and  bushes.  We  do  so  but  many  are 
wounded  in  the  attempt. 

The  sharp-shooters  keep  guessing  where  we  are  and  fire 
as  they  guess,  and  they  guess  pretty  well.  The  hot  June 
sun  is  pouring  its  rays  down  upon  us. 

By  and  by  we  receive  orders  to  get  off  the  field  as  best 
we  can  individually  or  collectively.  After  awhile  many 
members  of  my  company  with  my  lieutenants  and  myself 
worked  our  way  towards  a  ravine  on  the  left  of  the  field, 


42  SOME  RECOLLECTIONS 

near  some  logs  and  bushes.  There  we  discovered  an  open 
space  of  ten  to  twenty  rods  between  us  and  the  ravine. 
We  also  discovered  the  enemy  with  their  guns  across  their 
breastworks  ready  to  send  their  compliments  should  we 
attempt  to  cross  that  space. 

It  was  fearfully  hot,  and  I  began  to  feel  faint  from  my 
over-exertion.  Soon  the  enemy  commenced  firing  through 
the  bushes  where  we  were  concealed  from  their  view. 

I  said  to  the  boys,  "I  shall  die,  if  I  stay  here,  and  I 
am  going  to  try  for  the  ravine".  I  asked  my  first  lieu- 
tenant to  arrange  a  sergeant  and  ten  soldiers,  five  feet 
from  each  other  in  my  rear,  and  as  I  started  to  run  have 
them  follow  in  that  order.  I  remarked  that  shooting  a 
bird  on  the  wing  or  a  rabbit  on  the  run  took  a  good 
marksman. 

As  the  lieutenant  gave  the  order  I  ran  and  the  others 
followed.  It  would  be  useless  to  say  we  ran  well  and  fast. 
We  surprised  the  enemy.  They  evidently  thought  we 
would  not  undertake  such  a  hazardous  proceeding. 

A  great  many  shots  were  fired,  but  only  one  soldier 
was  seriously  wounded ;  he  was  shot  in  the  hip,  but  we  all 
reached  the  ravine.  The  soldiers  who  came  with  me  into 
the  ravine,  crept  up  to  the  edge,  where  they  could  have  a 
good  shot  at  the  heads  over  the  breastworks,  and  as  others 
of  our  soldiers  ran  across  the  open  space,  our  men  fired 
at  those  heads.  In  this  way  a  great  many  of  our  men 
made  their  way  into  the  ravine. 

After  the  surrender  of  the  fort  it  was  ascertained  that 
our  soldiers  had  proved  excellent  marksmen  on  this 
occasion. 

But  that  Sabbath  was  a  sad  day  for  me.  On  account 
of  my  imprudence  in  leaving  the  hospital  too  early  the 
fever  returned,  and  I  came  near  leaving  my  bones  in 
Louisiana,  and  I  have  had  an  annual  recurrence  of  the 


OP  A  LONG  LIFE.  43 


disease  until  1866,  when  I  was  brought  so  near  death's 
door,  that  I  almost  saw  the  other  side,  and  I  fear  I  may 
not  be  free  from  all  traces  of  it  yet. 

!N'otwithstanding  all  this,  I  am  pleased  to  believe  that 
I  did  my  full  duty  by  word  and  example  and  thereby  en- 
couraged others  in  a  like  direction.  A  large  and  some- 
what fleshy  soldier  in  my  company,  who  was  ill  and  unfit 
for  duty  on  that  day,  and  who  afterwards  had  a  serious 
illness,  was  asked  by  the  surgeon  why  he  did  not  get  ex- 
cused. He  replied,  "I  did  think  of  it,  but  when  I  looked 
at  the  captain,  a  mere  skeleton,  and  then  at  myself,  I 
concluded  that  if  he  was  able  to  go  into  the  fight,  I  cer- 
tainly was,  and  said  nothing". 

I  suppose  I  ought  to  have  been  court-martialed  for 
disobedience  of  orders  in  leaving  the  hospital,  yet  at  that 
time  we  needed  men  so  much,  that  instead  of  that  my 
superior  officers  all  joined  in  recommending  me,  on  ac- 
count of  my  services  on  that  day  for  promotion,  and  the 
President  of  the  United  States,  by  and  with  the  consent 
of  the  Senate,  conferred  upon  me  the  appointment  of 
Brevet  Major,  for  what  they  were  pleased  to  call  "Gallant 
and  meritorious  services". 

While  I  am  pleased  that  they  should  think  me  worthy 
of  such  honorable  mention  in  the  records  of  the  War  De- 
partment of  the  nation,  yet,  I  am  sad,  when  I  think  that 
there  are  hundreds  of  soldiers,  a  thousand  times  more 
worthy,  whose  names  only  appear  on  the  muster  rolls,  and 
their  deeds  are  only  remembered  by  Him,  "who  notices 
even  the  sparrow  fall". 

Port  Hudson  surrendered  July  8,  1863,  a  short  time 
after  the  surrender  of  Vicksburg,  leaving  the  Mississippi 
river  open  to  the  Gulf  of  Mexico,  and  our  regiment  was 
sent  home,  its  term  of  enlistment  having  expired  during 
the  siege  of  Px)rt  Hudson.     We  came  up  the  river  by 


44  SOME  EECOLLECTIONS 


Vicksburg,  and  upon  reaching  Massachusetts  were  "mus- 
tered out  of  service". 


Another  Account. 

In  1907,  a  history  of  the  48th  Regiment,  M.  V.  M.,. 
was  published.  The  Lawrence  Telegram  contained  the 
following  : 

"Albert  Plummer,  first  sergeant  of  Company  B,  ha& 
written  and  published  a  creditable  history  of  the  Forty- 
Eighth  Regiment,  M.  V.  M.,  in  the  Civil  War. 

Captain  Edgar  J.  Sherman  (now  Judge  Sherman),  was 
captain  of  Company  F,  and  Charles  H.  Littlefield  was 
first  sergeant.  The  following  named  enlisted  from  this 
city:  Austin  E.  Smith,  Charles  E.  Kent,  Thomas  Barry, 
Thomas  Birch,  Jonathan  Blythe,  Edward  Boland,  Charles 
S.  Brown,  Patrick  Burke,  Daniel  Caffrey,  James  Edge- 
comb,  Robert  Farrow,  Ephraim  Goodwin,  Albert  E.  Holt,. 
John  Looby,  Michael  Mahoney,  Patrick  Xoonan,  Edward 
T.  Oakes,  Joseph  K.  Parshley,  Charles  J.  Renno,  Edward 
Roddy,  James  Smith,  John  Smith,  Eugene  Sullivan,, 
Simon  Sullivan,  John  Vaughan  and  Samuel  Webb. 
******** 

On  May  26,  1863,  orders  were  issued  from  headquarters 
for  volunteers  for  a  'Forlorn  Hope',  to  charge  in  advance 
of  the  brigade  line  and  storm  the  enemy's  works  on  the 
27th. 

Austin  E.  Smith,  Patrick  I^oonan,  Edward  T.  Oakes, 
from  Lawrence,  and  six  others,  volunteered  from  Com- 
pany F.  Patrick  x^oonan  was  killed  in  this  charge. 
Lieutenant  Colonel  O'Brien  of  the  Forty-Eighth  Regi- 
ment, was  killed ;  also  many  others  killed  and  wounded". 

Again  we  quote  from  the  history: 

"Captain  Edgar  J.  Sherman  (of  the  same  family  of 
Roger  Sherman  and  General  William  T.  Sherman),  en- 
listed as  a  private  soldier  and  was  subsequently  elected 
Captain  of  Company  F. 


OF  A  LONG  I.IFE.  45 


When  the  regiment  advanced  on  Port  Hudson,  he  was 
in  the  hospital  sick  of  malarial  fever.  Hearing  of  the 
affair  of  Plains  Store,  the  captain,  somewhat  relieved  of 
the  fever,  but  weak  and  emaciated,  decided  to  join  the 
regiment.  The  surgeons  tried  to  induce  him  to  remain  a 
while  longer,  but  not  succeeding  in  this,  gave  orders  for- 
bidding it.  The  next  morning  the  captain  put  on  his  uni- 
form, left  the  hospital,  and  took  the  early  steamer  for 
Springfield  Landing.  There  he  was  met  by  the  surgeons, 
who  called  him  a  'walking  ghost,'  and  ordered  him  back 
to  Baton  Kouge.  The  captain  said  he  was  not  going  on 
duty,  but  only  to  visit  the  surgeon  of  his  regiment,  and  he 
was  allowed  to  proceed. 

He  was  there  several  days,  remaining  with  Dr.  Hurd, 
when  he  learned  that  there  was  to  be  a  charge  on  the 
enemy's  works  the  next  day.  He  at  once  determined  to  go 
on  duty.  The  colonel  and  surgeon  advised  against  it,  the 
doctor  saying,  'Captain,  if  you  go  into  this  fight  and  are 
not  killed,  your  fever  will  come  back,  and  you  will  leave 
your  bones  in  Louisiana'.  Captain  Sherman  made  the 
long  march  that  night,  with  the  aid  of  his  soldiers,  and  led 
his  two  companies  which  carried  the  colors  in  the  charge 
next  day.  When  the  charge  did  not  succeed,  and  the  order 
came  to  get  off  the  field,  the  captain  finally  reached  the 
ravine  on  the  left,  and  was  subsequently  carried  on  a 
stretcher  to  the  rear.  Dr.  Hurd  found  him  exhausted, 
with  the  fever  returning,  and  ordered  him  sent  at  once  to 
the  hospital  at  Baton  Rouge. 

Just  as  the  captain  was  being  put  into  the  ambulance, 
he  said  to  Dr.  Hurd:  'It  is  too  bad  about  poor  Captain 
Todd;  he  went  down  right  in  front  of  me,  and  we  went 

right  on  over  his  dead  body'.     'ISTot  by  a  d d  sight!' 

said  the  doctor.      'I  took  an  old  French  bayonet,  three 
inches  long  out  of  his  mouth,  and  he  is  all  right'. 

Captain  Sherman  was  seriously  and  dangerously  ill  for 
some  time,  and  it  was  feared  that  the  doctor's  prophecy 
might  become  true, — that  the  captain  would  'leave  his 
bones  in  Louisiana' ;  but  he  recovered  sufiiciently  to  return 
home  with  the  regiment. 

Officers  and  men  were  so  much  needed  at  the  time  that 


46  SOME  EECOLLECTIONS 


Captain  Sherman's  disobedience  of  the  order  'not  to  leave 
the  hospital',  was  condoned,  and  upon  the  recommendation 
of  his  superior  officers,  he  was  bre vetted  major  'for  gallant 
and  meritorious  services'. 

Captain  Sherman  is  the  only  man  in  the  regiment  who 
was  promoted  or  brevetted  for  'gallant  and  meritorious 
services'.  Captain  Sherman  has  often  declared  that  much 
of  the  credit  which  his  company  received  for  its  discipline 
and  good  conduct  in  action  was  due  to  his  orderly 
sergeant,  Charles  H.  Littlefield,  of  this  city,  and  that  most 
of  the  men  from  this  city  made  excellent  soldiers". 


!A.T  Washington  and  Fort  Delaware. 

There  was  a  hiatus  between  the  expiration  of  the  veter- 
an regiments  and  the  coming  in  of  the  new  three  years 
organizations,  when  the  Government — being  disturbed  by 
General  Early's  raid  on  Washington,  called  for  the  ser- 
vices of  regiments  for  one  hundred  days.  Adjutant 
General  Schouler  telegraphed  me  early  in  July,  1864,  to 
come  to  Boston.  He  urged  me  to  raise  a  company  in  Law- 
rence for  this  service,  and  to  do  it  at  once,  as  the 
authorities  at  Washington  were  in  a  hurry  for  these  regi- 
ments. The  following  is  from  Chaplain  Hanson's  history 
of  the  Sixth  Regiment. 

"Company  K,  Lawrence. 

This  company  was  a  new  one,  raised  mostly  in  Law- 
rence upon  the  governor's  call  for  five  thousand  one  hun- 
dred days'  men.  Recruiting  commenced  on  the  eleventh 
of  July,  and  the  company  was  filled  on  the  evening  of  the 
twelfth,  went  into  camp  on  the  thirteenth,  was  mustered 
into  service  on  the  fourteenth,  and  on  the  fifteenth  and 


OF  A  LONG  LIFE.  47 


sixteenth  were  clothed,  armed,  and  equipped  throughout, 
and  ready  to  move  on  the  seventeenth, — just  six  days  after 
the  first  movement  was  made. 

Captain  Sherman,  says  the  Lawrence  American,  under 
extraordinary  difficulties,  has  already  raised  one  company, 
enlisting  himself  as  a  private,  from  which  he  was  pro- 
moted to  a  captaincy,  and  as  we  personally  know,  no 
braver  or  more  faithful  officer  has  left  our  city;  always 
attentive  to  the  needs  of  his  men,  and  even  when  weak 
and  emaciated  with  sickness,  as  we  saw  him  at  Port  Hud- 
son (in  the  Forty-Eighth  Massachusetts),  leaving  the 
hospital  against  the  positive  prohibition  of  the  surgeon  to 
lead  his  men  in  the  assault". 

As  we  were  the  first  company  ready,  under  this  call, 
we  were  put  into  the  Sixth  Regiment.  We  went  to  Wash- 
ington and  remained  encamped  on  Arlington  Heights, 
until  the  Rebels  disappeared  from  the  vicinity  of  Wash- 
ington, when  we  were  sent  to  Fort  Delaware,  where  we 
guarded  rebel  prisoners  during  the  remainder  of  our  term 
of  service,  which  prisoners  were  captured  by  General 
Sheridan  in  the  Shenandoah  Valley. 

Fort  Delaware  is  a  fine  fort  on  Pea  Patch  Island  in 
the  Delaware  river,  some  forty  miles  below  Philadelphia. 

The  services  of  the  soldiers  were  hard,  but  that  of  the 
officers  easy — quite  different  from  what  I  had  experienced 
in  Louisiana.     We  had  some  twenty  thousand  prisoners. 

I  served  on  several  Courts  Martial. 

I  returned  home  and  was  mustered  out  of  service, 
October  27,  1864. 


CHAPTER  IV. 


REPRESENTATIVE  AKD  DISTRICT 
ATTORITEY. 


On  the  evening  of  !N^ovember  third,  1864,  at  a  caucus 
of  the  Republicans,  I  was  nominated  as  a  Representative 
to  the  General  Court  of  Massachusetts,  the  ballot  being  as 
follows : 


Whole  number  of  ballots, 317 

l^Tecessary   for   choice, 159 

Scattering, 2 

W.  F.  Gile, 18 

S.  S.  Crocker, 29 

Zener  Whittier, 53 

Edgar  J.  Sherman, 215 


The  nomination  was  made  unanimous. 

The  next  morning  Mr.  Whittier  called  all  the  candi- 
dates into  his  store,  and  said,  "Last  night  as  I  was  going 
home,  I  met  Sam  Allison  (who  was  regarded  as  something 
of  a  wag),  and  said  to  him,  come  up  to  the  caucus  to- 
night. "What's  up"  ?  said  he.  "To  nominate  a  representa- 
tive to  the  Legislature",  said  I.  "Who's  up"  ?  said  he, 
"Gile,  Crocker,  Sherman  and  myself",  said  I.  "My 
God",  said  Allison,  "has  it  got  dowTi  as  low  as  that"  ? 


OF  A  LONG  LIFE.  49 


I  was  elected,  and  on  January  following  (1865),  took 
my  seat  in  the  House.  Hon.  Alexander  H.  Bullock  (since 
Governor)  was  the  Speaker.  I  served  on  the  Judiciary 
Committee. 


The  General  Couet. 

I  was  re-nominated  and  re-elected  the  next  year  (1866). 
The  Hon.  James  M.  Stone  was  speaker,  and  I  served  as 
Chairman  on  the  committee  on  Military  Claims  and 
Federal  Eelations,  and  I  also  served  as  a  member  of  the 
Committee  on  Cape  Cod  Eailroad  Extension. 

The  legislature  during  the  session  of  1866  was  called 
upon  to  elect  a  Major  General  of  the  Militia. 

General  Benjamin  F.  Butler  was  elected  in  the  Senate 
without  opposition,  but  when  the  matter  came  before  the 
House,  a  week  or  ten  days  later,  there  developed  a  lively 
opposition  which  united  upon  General  W.  F.  Bartlett  of 
Pittsfield. 

The  first  ballot  showed  General  Butler  in  the  lead  with 
General  Bartlett,  General  E.  W.  Hinks  and  Colonel 
Clark  of  Amherst,  in  the  field,  with  no  choice. 

Then  Moses  Kimball  of  Boston,  the  leader  of  the 
House,  made  a  strong  speech  for  General  Bartlett,  putting 
especial  emphasis  on  his  bravery  at  Port  Hudson,  etc., 
and  just  as  he  was  finishing  a  point  of  order  was  raised, 
that  debate  was  not  in  order  after  a  motion  to  proceed  to 
ballot,  which  the  speaker  sustained.  Colonel  ISTewell  A. 
Thompson  of  Boston,  a  friend  of  General  Butler,  tried  to 
speak,  but  the  speaker  ruled  that  he  was  out  of  order. 

I  thereupon  moved  that  the  member  from  Boston 
(Thompson),  be  allowed  to  address  the  House,  remark- 
ing that  it  was  fair  to  hear  both  sides.  My  motion  was 
carried. 


50  SOME  EECOLLECTIONS 

After  Colonel  Thompson  had  made  a  speech  in  favor 
of  General  Butler,  a  member,  a  one-armed  soldier,  with- 
out objection  as  to  order  made  an  excellent  speech  for 
General  Bartlett. 

I  addressed  the  House  substantially  as  follows: 

I  know  General  Bartlett,  having  served  in  the  same 
brigade  with  him  at  Port  Hudson.  The  gentlemen  from 
Boston  (Kimball)  has  not  commenced  to  do  justice  to 
General  Bartlett.  No  braver  or  better  officer  served  iik 
the  late  war.  If  General  Bartlett  could  or  would  accept 
the  position  I  would  vote  for  him;  but  he  is  in  Europe- 
with  a  year's  leave  of  absence  from  the  War  Department, 
receiving  pay  of  a  Brigadier  General,  and  he  would  not 
give  that  up  and  come  home  to  accept  this  position,  and 
secondly,  this  bill  provides,  that  the  person  elected  shall 
signify  his  acceptance  in  writing  within  thirty  days,  or 
the  office  shall  become  vacant.  You  could  not  get  notice- 
to  him  and  acceptance  in  writing  in  thirty  days. 

This  is  an  attempt  on  the  part  of  men,  who  do  not  like 
General  Butler  to  defeat  him!  I  fear  that  political  in- 
fluence and  jealousy  is  playing  a  part  in  this  election. 

I  care  nothing  for  General  Butler,  but  he  was  a  member 
of  the  Militia  for  many  years  before  the  war,  and  did  as 
much  as  any  one  man,  if  not  more,  to  have  it  in  condition 
at  the  commencement  to  do  good  service. 

If  elected  to  this  office  I  believe  that  he  will  do  more 
than  any  other  candidate  to  keep  up  the  Militia,  and  for 
that  reason,  I  am  going  to  vote  for  him. 

The  House  took  my  view  and  General  Butler  was 
elected  by  a  small  majority  on  the  next  ballot. 

The  Hon.  Tappan  Wentworth,  who  at  the  time  was 
serving  as  a  Senator,  and  a  personal  friend  of  the  General, 
and  who  was  witnessing  the  election  in  the  House,  went 


OF  A  LONG  LIFE.  51 


directly  to  General  Butler's  office  and  said,  "General  you 
would  have  been  defeated  badly,  if  it  had  not  been  for  the 
speech  of  that  young  Sherman  from  Lawrence". 

From  that  time  General  Butler  became  my  friend,  and 
remained  such  until  the  day  of  his  death.  I  had,  he 
thought,  prevented  his  receiving  a  blow  from  his  enemies- 
He  never  forgot  me  or  those  enemies. 


Experiences  as  a  Lawyee  in  the  Ceiminal  and 

Civil  Couets. 

While  I  was  in  company  with  Mr.  Saunders,  I  gener-^ 
ally  prepared  the  cases  for  trial — both  the  law  and  the 
evidence,  and  in  the  more  important  cases  I  acted  as 
junior. 

I  had  tried  a  few  cases  alone.  I  remember  one  case- 
where  an  Irishman  in  Lawrence  was  indicted  for  an 
assault  with  a  loaded  gun,  upon  a  woman,  shooting  her 
face  full  of  shot. 

The  young  man's  father  had  retained  Mr.  Saunders,, 
paying  him  a  large  sum  to  defend  his  son;  but  when  it 
came  on  for  trial  before  the  Superior  Court  at  Newbury- 
port,  I  was  sent  there  to  have  'the  case  postponed.  Mr. 
Saunders  being  engaged  in  Boston.  It  was  the  first  case 
in  order  for  trial.  I  tried  hard  to  obtain  a  postponement^ 
on  account  of  Mr.  Saunders  absence,  and  because  I  knew 
little  of  the  case  and  was  unable  to  defend  it.  But  Mr. 
Justice  Morton  remarked  that  the  firm  of  "Saunders  and 
Sherman"  appeared  for  the  prisoner  and  "Sherman"  was 
present  and  the  trial  would  proceed. 

I  knew  the  only  chance  my  client  had  was  to  try  the 
case  as  little  as  possible.  I  asked  very  few  questions — I 
asked  if  the  prisoner  was  intoxicated.     The  answer  was 


52  SOME  RECOLLECTIONS 

"Yes".  I  also  asked  if  the  witness  thought  the  prisoner 
intended  to  shoot,  the  answer  was  "I^o".  I  did  not  argue 
the  case,  and  so  the  district  attorney  did  not. 

The  Judge  charged  the  jury,  thej  went  to  their  room 
and  I  came  home.  That  night  the  father  of  the  prisoner 
came  into  the  office,  and,  finding  that  the  case  had  been 
tried  and  that  Mr.  Saunders  was  not  present,  became  very 
indignant.  The  next  morning  we  all  went  to  ]!^ewbury- 
port.  The  jury  came  in  with  a  sealed  verdict,  which  upon 
being  opened  was  "Not  guilty". 

It  was  a  miscarriage  of  justice.  The  jurors  were  new 
and  evidently  did  not  understand  the  law.  I  afterwards 
asked  the  foreman  about  the  verdict,  and  he  said,  they  did 
not  think  the  prisoner  had  "malice  aforethought". 

My  fame  as  a  criminal  lawyer  was  well  started. 

I  tried  another  case,  a  boy  for  maliciously  setting  a 
barn  on  fire  in  Andover  and  he  was  acquitted. 

In  1864  I  dissolved  my  copartnership  with  Mr.  Saun- 
ders and  formed  a  new  one  with  Hon.  John  K.  Tarbox 
(afterwards  a  member  of  Congress)  under  the  firm  and 
style  of  "Sherman  and  Tarbox". 

I  tried  one  criminal  case  where  I  was  not  success- 
ful before  the  jury,  but  I  took  exceptions  to  the  ruling  of 
Mr.  Justice  Brigham  (afterwards  Chief  Justice)  and  the 
Supreme  Court  set  aside  the  verdict — (see  Common- 
wealth vs.  Woodbury  Curtis,  97  Mass.  R.  574).  Soon 
after  leaving  Mr.  Saunders  I  commenced  a  suit  "Ann 
Robbins  vs.  Joseph  Potter",  which  became  quite  noted, 
teing  in  court  some  years,  before  the  Supreme  Court 
twice,  and  reported  in  Massachusetts  Reports,  11  Allen 
588,  and  98  Mass.  R.  532. 

The  following  was  published  at  the  time  in  the  Boston 
'Journal. 


OF   A   LONG   LIFE.  53 


"A  CuKious  Law  Suit. 

A  case  of  some  interest  has  just  been  tried  in  the  Supe- 
rior Court  of  Essex  County,  before  Judge  Putnam,  Ann 
Robbins  vs.  Joseph  Potter. 

The  plaintiff  is  the  wife  of  James  Robbins,  and,  prior 
to  1860,  lived  with  her  husband  in  England.  The  defend- 
ant persuaded  her  to  leave  her  husband  on  account  of  hi& 
drunkenness  and  cruelty.  They  came  to  this  country  in 
1860,  went  through  the  form  of  marriage  and  lived  to- 
gether in  Lawrence  as  husband  and  wife  until  the  spring 
of  1864  when  he  turned  her  out  of  his  house.  She  then 
brought  this  suit  to  recover  the  sum  of  $560,  the  amount 
paid  the  grocer  by  her  at  the  defendant's  request  and  up- 
on his  promise  to  repay  it. 

The  defendant  claims  that  she  cannot  recover  because 
she  has  been  living  with  him  in  adultery;  that  the  con- 
tract was  illegal  and  void,  being  founded  upon  an  illegal 
consideration.  The  case  came  up  for  trial  March,  1865^ 
and  the  presiding  Judge  (Morton)  ruled  that  the  action 
could  not  be  maintained,  and  ordered  a  verdict  for  the 
defendant.  The  plaintiff  took  exceptions  to  that  ruling 
and  carried  the  case  before  the  Supreme  Court.  That 
Court  set  aside  the  verdict  and  ordered  a  new  trial,  say- 
ing, 'The  claim  is  for  money  paid  at  his  request  and  for 
debts  which  were  due  from  him  to  third  person.  The 
payments,  it  is  true,  were  made  under  circumstances  that 
seem  to  us  as  scarcely  to  admit  the  conclusion  that  they 
were  made  lawfully.  They  were  paid  continuously,  from 
month  to  month  for  groceries  furnished  to  support  the 
family.  It  was  possible  this  promise  was  made  from 
time  to  time,  as  she  advanced  the  money  without  any 
agreement  or  understanding  that  the  cohabitation  should 
continue;  and  if  the  jury  should  find  this  to  be  the  true 


54  SOME  EECOLLECTIONS 

state  of  the  case  there  would  be  no  legal  objection  to  the 
plaintiff's  recovery'. 

The  case  was  tried  under  the  above  instructions,  and 
the  jury  found  a  verdict  for  the  plaintiff  for  the  amount 
of  her  claim  and  interest. 

E.  J.  Sherman  for  the  plaintiff,  D.  Saunders  for  the 
defendant". 

I  was  much  in  doubt  when  the  action  was  brought,  but 
the  more  I  considered  it,  the  more  I  became  convinced, 
that  it  was  a  question  of  fact  for  the  jury  to  decide 
whether  the  contract  was  a  lawful  one,  and  the  equities 
were  so  strong  for  the  woman  I  thought  she  would  recover. 
My  old  partner,  Daniel  Saunders,  was  for  the  defendant, 
and  it  being  a  "curious  case",  the  court  house  was  crowded 
to  overflowing  when  it  was  reached  March,  1865,  before 
Mr.  Justice  Morton  (since  Chief  Justice  of  the  Supreme 
Court). 

Soon  the  question  was  raised  as  to  the  right  of  the 
plaintiff  to  maintain  the  action.  We  discussed  the  law 
to  the  court,  I  arguing  that  the  judge  had  no  right  to  de- 
cide whether  or  not  the  payment  of  the  money  had  any- 
thing to  do  with  the  illegal  cohabitation,  that  that  ques- 
tion was  for  the  jury.  The  judge  decided  against  me, 
and  I  had  great  respect  for  his  opinion,  but  still  I  felt 
sure  he  was  wrong.  The  bar  was  almost  all  against  my 
view  of  the  law. 

The  Supreme  Court  took  my  view  of  the  law,  and  I 
won  the  verdict.  It  was  taken  to  the  Supreme  Court  a 
second  time  by  the  defendant.  But  that  court  sustained 
the  verdict. 

After  my  client  had  suffered  "the  law's  delays"  for 
nearly  four  years,  the  sheriff,  armed  with  an  execution, 
put  the  plaintiff  into  possession  of  the  house  from  which 


OF  A  LONG  LIFE.  55 


the  defendant  had  ejected  her  nearly  four  years  before, 
and  put  the  defendant  out. 

I  was  learning  that  "Every  tub  must  stand  on  its  own 
bottom".  I  began  to  have  confidence  in  myself,  in  my 
own  view  of  the  law,  and  my  reputation  as  a  lawyer  was 
on  the  increase.  I  had  beaten  my  old  partner  in  a  "curi- 
ous case"  which  attracted  much  attention.  After  that,  I 
had  a  good  law  business,  and  during  my  whole  practice, 
never  lacked  a  goodly  number  of  clients.  I  was  remark- 
ably successful  with  my  cases.  At  one  term  of  the  court 
I  gained  thirteen  out  of  fifteen  cases. 


District  Attorneyship. 

In  the  fall  of  1865,  I  ran  for  the  office  of  District  At- 
torney in  the  Essex  district. 

At  the  Republican  Convention  the  first  ballot  was  as 
follows : — 

Alfred  A.  Abbott  of  Peabody,  ....  47 
Benjamin  H.  Smith  of  Gloucester,  .  .  91 
Edgar  J.  Sherman  of  Lawrence,     ...     96 

and  there  was  no  choice.  On  the  next  Abbott's  friends 
voted  for  Smith  and  he  received  the  nomination,  and  then 
Mr.  Abbott,  who  had  held  the  office  for  twelve  years,  ran 
as  an  independant  candidate  and  was  elected  at  the  polls 
•over  Smith. 

At  the  Republican  Convention  three  years  later, — the 
election  was  for  a  term  of  three  years, — in  the  fall  of 
1868,  I  ran  again  for  the  office. 

I  was  nominated  by  the  following  vote : 

Alfred  A.  Abbott  of  Peabody,  ...  27 
Edgar  J.  Sherman  of  Lawrence,     .     .     .     182 


56  SOME  RECOLLECTIONS 


On  election  day  the  vote  was  as  follows: 

Alfred  A.  Abbott  of  Peabody,  Independent,  3305 
Edwin  Ireson  of  Lynn,  Democrat,  .  .  5351 
Edgar  J.  Sherman  of  Lawrence, 

Eepublican, 18,947 

One  of  the  leading  newspapers  in  the  county  had  the 
following  article  on  the  district  attorneyship. 

"The  district  is  constituted  of  the  entire  county  of 
Essex  comprising  four  cities  and  thirty  towns,  with  a 
population  of  200,000,  and  about  40,000  legal  voters. 
The  district  attorney  is  counsel  for  and  represents  the 
people;  it  is  his  duty  to  appear  for  the  Commonwealth — 
the  people — in  the  Supreme  and  Superior  Courts,  in  all 
cases  civil  and  criminal  in  which  the  Commonwealth  is 
a  party  or  interested. 

The  office  in  the  past  has  been  held  by  Chief  Justice 
Parsons,  Justice  Story,  Hon.  John  Pickering,  Hon. 
Stephen  Minot,  Hon.  Asahel  Huntington,  Hon.  Stephen 
H.  Phillips  and  Hon.  Alfred  A.  Abbott. 

Colonel  Sherman,  who  has  just  received  so  hearty  an 
election,  and  who,  in  his  o^vn  city,  ran  highest  upon  the 
ticket,  receiving  more  votes  than  were  given  to  General 
Grant,  is  a  young  lawyer  of  decided  ability, — has  already 
won  a  high  position  at  the  bar,  and  met  with  marked  suc- 
cess in  his  practice,  and  possesses  qualities  which  peculiar- 
ly fit  him  for  the  position". 

I  commenced  my  duties  the  following  January,  1869. 

At  the  October  session  following,  Leonard  Choate^ 
commonly  called  "the  firebug"  was  tried.  Judge  Ezra 
Wilkinson  presided.  Alfred  A.  Abbott  and  Stephen  B. 
Ives  appeared  for  the  defence.  For  a  period  of  twenty 
years  there  had  been  in  !N^ewburyport  incendiary  fires 
almost  every  week,  burning  all  kinds  of  buildings,  de- 
stroying a  large  amount  of  property  and  several  lives. 


OF  A  LONG  LIFE.  57 


The  people  had  become  alarmed,  and  the  administra- 
tion of  Mayor  Pierce  was  bound  to  find  and  punish  the 
incendiary.  The  police  force  was  doubled  and  private 
detectives  were  employed.  Pursuing  different  lines  of 
investigations  the  police  and  detectives  came  to  the  same 
conclusion  as  to  the  guilty  person. 

Leonard  Choate  was  arrested  in  the  state  of  Minnesota 
upon  a  requisition  and  brought  back  to  l^ewburyport  and 
charged  with  being  the  guilty  party. 

He  was  born  in  that  city,  a  man  in  good  standing  and 
possessed  of  a  good  amount  of  property.  He  had  a  wife 
and  several  small  children. 

The  case  was  an  interesting  and  important  one,  the 
evidence  was  mostly  circumstantial.  All  the  fires  had 
been  set  by  means  of  a  box  with  a  candle  inside,  carefully 
prepared,  so  that  the  fire  would  take  effect  when  the 
candle  burned  to  the  bottom  of  the  box.  Some  of  the 
property  which  would  have  come  to  Choate  as  an  heir  was 
burned.  There  seemed  to  be  no  motive  for  these  burnings. 
The  only  thing  he  seemed  to  enjoy  was  to  hear  the  fire 
bells  ringing  and  great  excitement  in  the  city — the  citi- 
zens so  alarmed  that  they  could  not  sleep — and  he  up  in 
the  cupola  of  his  house,  saying  to  himself,  "Don't  they 
wish  they  knew  who  was  doing  all  .this"  ?  I  do  not  believe 
any  of  his  family  or  friends  knew  that  he  was  the  "fire- 
bug".    He  was  the  only  possessor  of  the  great  secret. 

He  was  indicted  in  many  coumts,  in  many  indictments. 
With  the  assistance  of  the  officers  we  prepared  the  case 
with  great  care.  The  trial  lasted  nine  days  and  the  public 
interest  was  very  great.  I  was  greatly  relieved  when  I 
found  that  his  counsel  were  not  to  plead  insanity  as  a 
defence. 

Choate  was  convicted  and  his  case  was  carried  to  the 
Supreme    Court   on   exception,  but   the   exceptions    were 


58  SOME  EECOLLECTIONS 

overruled  (see  Commonwealth  vs.  Leonard  Choate  re- 
ported in  105  Mass.  R.  451).  He  was  subsequently 
sentenced  to  state  prison  for  life. 

At  last  account  he  was  alive  in  the  state  prison.  While 
I  was  Attorney  General  there  was  some  talk  about  a  par- 
don for  Choate.  I  think  his  friends  had  a  fear  that  it  was 
not  safe  to  have  him  at  large ;  that  he  had  a  mania  for  set- 
ting fires. 

I  received  a  letter  from  the  mayor  of  Newburyport 
thanking  me  in  behalf  of  the  people  for  the  "splendid 
manner"  in  which  I  had  conducted  the  prosecution. 

One  paper  had  an  article  as  follows: 

"The  friends  of  the  District  Attorney  comparatively 
new  to  the  position  congratulate  him  upon  the  success  in 
this  most  difficult  case,  for  some  of  the  points  ruled  upon 
were  very  near  the  line  of  evidence.  Cool,  wary,  watch- 
ful, vigilant,  careful  and  earnest  throughout,  with  the 
most  powerful  counsel  in  the  country  as  his  opponent,  his 
conviction  of  Choate  fairly  establishes  his  reputation". 


Some  Intekesting  Cases. — "Wightman". 

The  Town  Treasurer  of  Georgetowm,  who  was  also  a 
druggist,  carried  the  money  collected  during  the  day  to 
his  dwelling  house  at  night,  putting  it  in  a  safe  there. 

One  dark,  rainy  night,  about  10.30,  as  he  was  going 
home,  having  the  money  in  a  paper  box  under  his  arm, 
he  was  knocked  on  the  head  by  what  was  supposed  to  be 
a  sand  bag.  He  threw  away  his  box  and  cried  "Murder, 
Murder!"  His  assailants  ran  away.  Friends  came  with 
a  lantern  and  they  found  the  money  all  safe. 

Subsequently  a  man,  who  called  himself  Wightman, 
was  arrested  for  an  attempt  at  highway  robbery.    He  was 


OF  A  LONG  LIFE.  59 


one  of  the  finest  looking  men  I  ever  saw,  six  feet  and  four 
inches  in  height. 

When  the  trial  was  held  he  defended  himself,  showing 
that  he  was  an  able  lawyer  and  an  educated  man.  He 
made  one  of  the  ablest  arguments  ever  made  by  a  prison- 
er. He  was  convicted,  the  evidence  being  very  strong 
against  him. 

I  said  to  him,  "Wightman,  I  would  like  to  know  your 
history,  and  if  you  see  fit  to  tell  it  to  me,  I  will  not  give 
you  away". 

His  true  name  was  not  Wightman,  but  he  never  told 
me  his  right  and  true  name.  He  afterwards  gave  me 
what  I  am  inclined  to  believe  was  a  true  story. 

He  was  born  in  Virginia,  his  father  being  a  clergyman. 
He  graduated  at  one  of  the  colleges  in  that  state  and  it 
was  the  purpose  of  his  parents  that  he  should  be  a  clergy- 
man, he  however,  studied  law  and  was  admitted  to  the  bar. 

He  insisted  that  he  had  been  acting  as  a  "confidence- 
man"  for  fifteen  years ;  that  he  never  before  was  guilty  of 
any  acts  of  violence  like  robbery  or  other  crime;  that  in 
his  real  profession  he  committed  only  one  kind  of  crime. 

He  would  go  into  a  large  jewelry  store  in  ISTew  York 
and  introduce  himself. 

I  am  Mr.  John  Brown  of  Albany.  We  are  to  give  our 
clergyman  a  present  of  a  gold  watch — I  want  the  finest 
watch  you  have.  He  would  pick  out  the  watch  at  the 
lowest  cash  price.     ISTow,  as  you  do  not  know  me,  do  up 

the  watch  and  send  it  by  Express  to  my  address, 

Albany,  marked  C.  O.  D. 

As  he  was  about  leaving  the  store,  he  would  say,  By 
the  way,  can  you  let  me  write  a  letter  ?  He  expected  they 
would  give  him  a  seat  at  the  desk  with  one  of  their  letter 
heads;  and  upon  that  he  would  write: 


60  SOME  EECOLLECTIONS 

"We  have  just  sent  a  watch  to  the  address  of  John 
Brown  by  your  express,  marked  C.  O.  D.,  but  since  doing 
up  the  package  we  find  that  Mr.  Brown  is  entirely  re- 
sponsible, you  may  therefore  deliver  the  package  by  col- 
lecting express  charges. 

Truly  yours, 

(Jewelry  firm  name)" 
by 

He  would  then  put  the  letter  in  an  envelope  directed 
to  the  express  company  at  Albany,  and  ask  the  firm  to 
send  it  with  the  package.  The  next  day  an  accomplice 
would  appear  at  Albany  and  obtain  the  watch  by  paying 
the  express  charges. 

He  declared  that  for  fifteen  years  he  had  succeeded  in 
"playing  that  game"  in  every  large  city  in  America, 
realizing  more  than  a  hundred  thousand  dollars,  and  never 
had  been  caught.  He  said  his  great  trouble  had  been  in 
disposing  of  the  property  thus  obtained,  and  that  he  had 
accomplices,  who  took  the  property  of  all  kinds,  which  he 
obtained  in  this  way,  at  about  one-half  or  two-thirds  of 
its  real  value. 

He  told  me  how  I  could  find  out  and  corroborate  his 
story;  that  there  was  a  law  suit  between  the  jeweler  and 
the  express  company,  in  which  the  express  company 
claimed  that  the  jeweler  should  lose  because  the  loss  was 
occasioned  by  giving  the  "confidence-man"  the  letter  heads 
and  sending  the  letter  along  with  the  package. 

I  did  confirm  this  story,  Wightman  was  sentenced  to 
seven  years  in  the  state  prison.  He  seemed  very  much 
broken  down,  and  declared  that  his  health  was  poor,  and 
that  he  should  not  live  out  his  sentence. 

Nearly  seven  years  afterwards,  while  I  was  Attorney 
General,  a  man  came  into  my  office,  and  asked,  "Do  you 


OF  A  LONG  LIFE.  61 


know  me"  ?  After  a  moment  I  replied,  "Yes,  you  are 
Wightman". 

He  declared,  that  henceforth  he  was  going  to  live  an 
honest,  upright  life.  He  wanted  I  should  give  him  a  letter 
of  recommendation  to  Jordan,  Marsh  and  Co.  I  said  yes, 
but  I  must  tell  them  all  I  know  about  you,  except  what 
you  told  me  in  confidence. 

He  thought  I  looked  incredulous,  when  he  said  he  was 
going  to  reform,  and  asked,  if  I  did  not  believe  him. 
Without  replying,  I  said,  I'll  tell  you  what  to  do.  When 
you  settle  down  and  become  engaged  in  some  honest  em- 
ployment, "write  me  a  letter  and  tell  me  about  it.  I  never 
have  received  that  letter ;  but  it  was  not  a  great  while  after 
that  interview  before  I  saw  in  the  newspapers  accounts  that 
the  "same  game  was  being  played"  in  different  parts  of 
the  country. 


Stephen  B.  Ives^  Je. 

Stephen  B.  Ives,  Jr.,  of  Salem  was  a  very  able  lawyer. 
He  was  a  graduate  of  Harvard  College  and  the  Harvard 
Law  School.  He  was  a  great  friend  of  Mr.  Abbott,  my 
predecessor  as  district  attorney,  and  he  seemed  to  manifest 
a  great  dislike  towards  me,  partly,  I  thought,  because  I  had 
ousted  his  friend,  and  also  as  he  regarded  me  as  not  quali- 
fied for  the  position.  Some  of  the  Salem  attorneys  at  that 
time,  with  some  pride  concerning  their  own  city,  looked 
askance  at  the  Lavsrrence  lawyers  as  coming  from  a  manu- 
facturing city.  Mr.  Ives  and  I  tried  a  great  many  cases 
on  opposite  sides.  He  was  far  my  superior  in  knowledge 
of  the  law  and  in  general  ability,  but  he  had  an  unfortu- 
nate disposition,  and  a  bad  temper,  which  he  could  not 
always  control,  and  especially  when  I  was  his  opponent. 


62  SOME  KECOLLECTIONS 

I  fear  I  took  advantage  of  this  weakness.     Mr.  Ives  also 
justly  prided  himself  upon  his  literary  attainments. 

He  defended  a  good  many  cases  in  the  criminal  court, 
goon  after  I  became  the  District  Attorney.  At  one  criminal 
term  of  the  court  before  Judge  Putnam,  Mr.  Ives  saved 
many  exceptions  to  the  rulings  of  the  court.  In  arguing 
a  case  to  the  jury,  Mr.  Ives  said,  ''The  District  Attorney 
is  disposed  to  compliment  me.  'Damn  with  faint  praise, 
assent  with  civil  leer,  and,  without  sneering,  teach  the  rest 
to  sneer',  as  Shakespeare  says". 

The  District  Attorney.  "Mr.  Ives,  your  quotation  is 
right,  but  your  author  is  wrong.  Pope  is  the  author". 
"ISTo,  he  is  not ;  that  is  from  Shakespeare",  said  Mr,  Ives ; 
"anyway,  I  will  refer  it  to  the  judge".  "No,  no",  said 
Judge  Putnam,  "I  am  afraid  you  would  save  an  excep- 
tion". A  pretty  strong  intimation  that  he  would  have  to 
decide  against  Mr.  Ives.  The  story  soon  appeared  in  the 
newspapers,  and  the  bar,  and  especially  Mr.  Ives'  friend, 
"worried  the  life  out  of  him"  over  being  corrected  on  such 
a  matter  by  a  gentleman  who  made  no  pretentions  to  liter- 
ary ability. 

Mr.  Ives  died  at  the  age  of  54.  Much  too  soon,  as  he 
was  a  man  of  high  character  and  standing  and  had  a  great 
career  of  usefulness  before  him,  lamented  by  the  bench 
and  bar. 

While  District  Attorney  and  trying  a  physician  for 
procuring  an  abortion,  his  defence  being  that  he  never 
had  anything  to  do  with  the  woman  in  any  way,  he  took 
the  stand  in  his  own  defence,  and  so  testified. 

There  had  been  evidence  in  the  case  showing  the  size 
of  the  foetus  in  this  case.  In  cross-examination,  I  asked 
him,  "Doctor,  how  large  is  a  foetus  at  four  months"  ?  He 
answered,   forgetting  his   defence,   "Usually  it   is   about 


OF  A  LONG  LIFE.  63 


(measuring  with  his  hands)  so  long,  but  tJiis  one  was  so 
long". 

I  had  no  idea  of  catching  him ;  my  question  was  an  in- 
nocent one,  but  his  answer  nearly  took  my  breath  away, 
and  I  looked  at  his  counsel,  Henry  P.  Moulton  and  William 
H.  iNiles,  and  the  answer  had  seemed  to  affect  them  more 
than  it  did  me.  I  said  to  the  witness,  "That  is  all  Doctor", 
and  he  left  the  witness  stand,  not  realizing  that  he  had 
given  bis  case  away. 

It  was  one  of  those  rare  instances,  which  sometimes 
happens  in  Court,  where  a  defendant  is  trying  to  avoid 
the  consequences  of  his  crime  by  denying  the  truth,  that 
for  the  moment  he  forgets  and  speaks  the  truth. 

In  my  argument  to  the  jury,  I  remember  saying,  "Gen- 
tlemen, when  the  defendant  forgot  his  defence  and  told 
the  truth  on  the  witness  stand,  you  must  have  observed 
that  one  of  his  counsel,  who  has  a  red  face,  turned  white ; 
and  the  other  who  has  a  very  white  face,  turned  red". 


CHAPTER  y. 


REGISTER  IX  BANKRUPTCY  AiN'D  ASSISTANT 

ADJUTANT  GENERAL  AND  ATTORNEY 

GENERAL. 


March  2,  1867,  Congress  passed  an  act  to  establish  a 
uniform  system  of  Bankruptcy  throughout  the  United 
States.  The  appointment  of  Registers  was  to  be  made 
by  the  nomination  of  the  Chief  Justice  of  the  Supreme 
Court  and  confirmed  by  the  Judges  of  the  District 
Courts. 

I  was  recommended  by  Hon.  Marcus  Morton,  Justice  of 
the  Superior  Court,  Hon.  George  F.  Choate,  Judge  of 
Probate,  Hon.  George  B.  Loring,  Hon.  Nathaniel  P. 
Banks,  member  of  Congress  and  many  others,  and  re- 
ceived the  appointment. 

After  I  was  elected  to  the  office  of  district  attorney,  I 
felt  that  perhaps  it  would  seem  unreasonable  to  hold  both 
offices,  although  there  was  nothing  in  the  law  to  prevent. 
I  wrote  a  letter  to  the  Chief  Justice,  saying  that  I  would 
resign  the  office  of  Register  as  soon  as  I  closed  up  the 
cases  before  me,  and  recommending  that  another  register 
be  appointed  to  take  the  new  cases. 

Hon.  Charles  J.  Noyes,  afterwards  Speaker  of  the  House 
of  Representatives,  was  nominated  by  the  Chief  Justice, 
but  opposition  to  his  appointment  was  made  by  the  people 
of  Haverhill,  where  he  then  lived,  before  Judge  Lowell, 


OF  A  LONG  LIFE.  65 


the  district  judge.  After  discussion  of  his  fitness  was 
made  before  the  Court,  his  nomination  was  withdrawn. 
'No  other  nomination  was  made,  and  I  continued  to  hold 
the  office  until  the  law  was  repealed. 


A  Steal  Fkustrated. 

I  had  a  case  before  me,  where  the  account  of  the  as- 
signees showed  $19,000  worth  of  assets,  and  it  was  pro- 
posed to  declare  a  dividend  for  the  creditors  of  about 
$4,000.  I  looked  over  the  account  and  asked  if  any  one 
objected  to  it.  No  one  did  object.  I  saw  that  the  two 
assignees  had  charged  for  services  $4,000  each,  Edward 
Avery,  who  had  acted  as  their  attorney,  had  charged 
$3,200 ;  other  attorneys,  who  had  been  allowed  to  come  in 
and  prosecute  some  claims  for  the  estate,  had  charged 
$1,000 ;  and  so  on,  making  the  amounts  count  up  to  nearly 
$15,000. 

I  remarked  in  the  open  meeting,  "This  looks  like  a 
steal,  I  cannot  allow  such  an  account  without  evidence". 
"Very  well"  they  said,  "They  could  satisfy  me  that  it 
was  all  right".  I  commenced  to  hear  evidence, — the  more 
evidence  I  heard  the  worse  the  account  appeared.  After 
we  had  gone  on  for  fifteen  minutes,  I  said,  "I  will  allow 
the  assignees  $400  each,  I  will  not  allow  Mr.  Avery  any- 
thing, as  I  do  not  think  he  has  acted  in  the  interest  of  the 
creditors;  I  will  allow  the  other  attorneys  their  charge 
for  $1,000,  as  they  have  earned  it,  etc.,  etc.,  making  the 
amount  of  my  allowance  about  $4,000  (so  that  there 
would  be  about  $15,000  for  a  dividend),  or  you  may  go 
directly  to  Judge  Lowell  without  my  passing  upon  the 
account".    Well  they  said  they  would  go  to  the  Judge. 

Two  weeks  later,  I  was  holding  a  meeting  in  the  upper 


C6  SOME  RECOLLECTIONS 

court  room,  and  Judge  Lowell  sent  for  me.  As  I  entered 
his  court  room,  the  above  case  and  accounts  were  being 
heard  before  him.  The  Judge  said,  "Mr.  Kegister  it  has 
appeared  in  this  hearing  that  you  partially  heard  and  con- 
sidered this  account"  ?  "Yes",  I  replied,  "I  only  heard 
it  for  about  fifteen  minutes".  "I  want  you  to  state  just 
what  occurred,  what  you  said  and  what  others  said",  re- 
marked the  judge.  So  I  stated  literally  what  had  hap- 
pened before  me.  "That  will  do",  said  the  judge,  and  I 
walked  back  to  my  duties. 

The  next  week,  I  found  that  he  had  adopted  my  figures 
in  making  his  decision.  The  following  week,  I  was 
called  into  his  lobby  and  highly  complimented  upon  the 
stand  I  had  taken.  He  said  that  if  all  the  courts  and 
registers  would  administer  the  law  as  he  and  I  were  trying 
to  administer  it,  it  would  be  for  the  real  benefit  of  cred- 
itors and  that  lawyers  and  assignees  would  not  be  allowed 
to  steal  the  estates. 

After  that,  I  found  I  was  a  favorite  with  Judge  Lowell, 
and  if  there  was  any  case  where  he  suspected  an  attempt 
to  steal,  it  was  referred  to  me. 


Judge  Otis  P.  Loed. 

The  friends  of  Alfred  A.  Abbott  were  a  good  deal  dis- 
turbed on  account  of  my  election  to  the  office  of  district 
attorney  over  him,  ousting  him  from  an  office  which  he 
had  held  for  twelve  or  more  years.  Jealousy  played  its 
accustomed  part. 

Abbott  was  a  protege  of  Otis  P.  Lord,  then  a  judge  of 
the  Superior  Court,  living  in  Salem  and  he  frequently 
held  court  in  Essex  County.  He  was  a  great  lawyer  and 
able  man,  but  so  thorough  a  partisan  that  it  greatly  in- 


OF  A  I.ONG  LIFE.  67 


terfered  with  his  usefulness  as  a  judge.  His  friends  now 
generally  believe  that  had  he  remained  at  the  bar,  he 
would  have  become  one  of  the  greatest  lawyers  of  his  time. 

The  Judge  made  things  very  uncomfortable  for  me, 
both  in  the  criminal  and  civil  courts,  not  quite  so  bad  in 
the  civil,  as  there  I  had  the  right  of  exception. 

In  arguing  a  case  in  the  criminal  court,  he  interrupted 
me,  so  I  took  my  seat  fifteen  times,  and  when  he  finished 
what  he  had  to  say  I  proceeded. 

The  interruptions  were  something  like  this : — 

Judge  Lord.  "Mr.  Attorney,  I  do  not  propose  to  allow 
you  to  misrepresent  the  evidence". 

The  District  Attorney.  ''But  I  am  not  misrepresenting 
the  evidence,  I  am  stating  it  exactly  as  the  witness  gave 
it  on  the  stand". 

Judge  Lord,  "l^o  you  are  not". 

District  Attorney.  "I  am  willing  to  leave  that  question 
to  the  jury,  and  your  honor  will  have  to  tell  them  that  it 
is  for  them  to  decide". 

Judge  Lord.     "Proceed  with  your  argument". 

A  few  minutes  later:  Judge  Lord.  "Mr.  Attorney, 
you  may  recall  the  witness,  and  see  what  he  says  about 
this  evidence". 

District  Attorney.  "I  have  no  occasion  to  recall  the  wit- 
ness, I  am  satisfied  with  his  evidence". 

After  many  more  interruptions,  suggesting  and  almost 
ordering  the  Attorney  to  recall  the  witness,  the  Attorney 
firmly  but  respectfully  declined  to  do  so,  stating  that  he 
had  no  objection  to  the  Judge  recalling  him.  Finally  the 
Judge  recalled  and  examined  the  witness,  who  stated  the 
evidence  exactly  as  claimed  by  the  Attorney. 

Judge  Lord.  "You  may  proceed  with  your  argument 
Mr.  Attorney". 


68  SOME  KECOLLECTIONS 

For  nearly  seven  years  the  Judge  and  District  Attorney 
did  not  recognize  or  speak  to  each  other,  except  in  court 
when  they  were  compelled  to. 

During  all  this  time,  I  was  always  respectful  to  the 
Court,  but  I  stood  my  ground  for  the  rights  of  my  clients. 
Finally,  I  felt  that  "forbearance  had  ceased  to  be  a 
virtue",  and  I  with  others  drew  up  and  signed  the 
following : 

^'To  the  County  Commissioners  of  the  County  of  Essex: 

By  the  Statutes  of  the  Commonwealth  the  property  of 
the  County  is  committed  to  your  care,  and  it  is  your  duty 
to  see  to  it,  that  the  public  buildings  are  appropriated  only 
to  legitimate  public  uses.  ISTo  other  or  different  use  of  the 
public  property  should  be  allowed,  except  by  common  and 
unanimous  consent. 

Upon  the  question  of  what  is  a  legitimate  use  of  public 
property,  minorities  even  have  rights  which  should  be 
respected  and  protected.  A  letter  has  been  in  circulation 
for  signatures  among  the  members  of  the  bar  of  this 
county,  addressed  to,  and  requesting  Judge  Otis  P.  Lord, 
of  the  Superior  Court,  to  sit  for  his  portrait,  that  it  may 
be  hung  upon  the  walls  of  the  County  Court  House  at 
Salem. 

As  this  letter  may  result  in  official  action  on  the  part 
of  your  board,  we  respectfully  remonstrate  against  the 
carrying  out  of  the  purpose  of  the  request,  and  assign 
some  of  the  reasons  that  constrain  us  in  so  doing. 

In  the  first  place,  it  is  not  customary  to  erect  monu- 
ments to  the  living.  When  the  final  scene  has  closed  a 
worthy  life,  an  appreciative  people  may  well  set  up  mon- 
uments; only  the  most  prominent  and  exceptional  services 
to  the  public  can  change  such  a  well-established  propriety. 
While  all  the  members  of  the  bar  and  the  public  generally 
concede  to  Judge  Lord  great  qualifications  as  a  lawyer 
and  advocate,  yet  we  believe  it  is  as  well  acknowledged 
that  these  qualifications  are  not  such  as  peculiarly  fit  him 
for  the  office  of  judge.    And  if  any  member  of  the  bar  was 


OF  A  LONG  LIFE.  69 


called  upon  to  select  from  the  bench  the  judge  in  refer- 
ence to  whose  conduct  officially,  complaint  was  most 
general,  he  would  be  compelled  to  name  Judge  Lord. 

The  letter  referred  to,  which  has  been  quite  generally 
signed  by  the  members  of  the  bar  in  this  county,  is  not, 
in  our  opinion,  evidence  of  any  general  feeling  favoring 
such  marked  recognition  of  magisterial  excellence;  and 
we  submit  that  the  request  to  sign  such  a  letter  from 
the  personal  and  intimate  friends  of  Judge  Lord,  to  the 
members  of  the  bar,  who,  to  a  greater  or  less  extent  are 
engaged  in  trying  cases  before  him,  is  not  only  a  matter 
of  questionable  propriety, — especially  so  when  the  pecu- 
liar characteristics  of  Judge  Lord  are  so  well  known,  and 
he  so  often  holds  court  in  this  county — but  the  letter  it- 
self, obtained  under  such  circumstances,  is  of  but  little 
value  as  tending  to  show  any  professional,  much  less  any 
public  sentiment  in  favor  of  a  project  which  should  only 
be  carried  out  upon  the  most  manifest  and  voluntary  ex- 
pression of  such  sentiment. 

Again  we  submit,  it  would  neither  be  wise  nor  consid- 
erate, to  select  one  judge  from  his  bretheren  upon  the 
bench,  and,  previous  to  his  retirement  from  active  duty, 
to  distinguish  him  from  the  other  judges  of  the  Supreme 
and  Superior  Courts,  who  each  have  occasion  to  hold 
court  in  the  same  room  where  it  is  proposed  to  hang  the 
portrait  of  Judge  Lord.  "Comparisons  are  odious",  and 
this  would  be  the  most  odious  and  unjust  of  all  compari- 
sons. 

While  the  above  are  by  no  means  all  the  reasons  that 
could  be  assigned,  yet  they  are,  in  our  opinion  sufficient 
to  justify  you,  as  servants  of  the  public,  in  refusing  the 
use  of  the  court  house  for  the  purpose  indicated. 

Edgak  J.  Shekman^ 
Wm.  S.  Knox, 
Elbridge    T.    Bailey, 
Charles  LT.   Bell, 
and  fifteen  others. 


January  1,  1875 


70  SOME  RECOLLECTIONS 

The  letter  was  presented  to  the  County  Commissioners 
and  a  public  hearing  asked  for. 

The  friends  of  Judge  Lord  said  they  would  not  ask  to 
have  the  portrait  hung  in  the  court  house  while  there  was 
so  much  opposition. 

Subsequently,  Governor  Gaston  nominated  Judge  Lord 
to  the  Supreme  Court.  Many  of  the  lawyers,  who  had 
signed  the  petition  to  put  Judge  Lord's  portrait  in  the 
<;ourt,  came  to  us  who  had  signed  the  remonstrance,  and 
asked  us  to  help  defeat  his  confirmation  before  the  Repub- 
lican Council. 

I,  for  myself,  replied  no,  that  he  could  not  do  so  much 
injustice  there,  as  on  the  Superior  Court,  as  he  had  six 
Associates  there  to  prevent  injustice. 

Subsequently  at  an  Essex  Bar  dinner,  Judge  Lord 
came  more  than  half  way,  extended  his  hand  and  I  took 
it.  From  that  time  he  always  treated  me  kindly  and  fair- 
ly. It  was  fortunate  that  this  was  so,  as  after  his  death, 
I,  as  Attorney  General,  was  required  to  present,  March  22, 
1884,  the  Eesolutions  of  the  Bar  upon  the  death  of  Judge 
Lord,  to  the  Supreme  Court  (see  137  Mass.  Report,  591). 

My  remarks  were  in  part  as  follows: — 

May  it  please  your  honors: 

A  distinguished  citizen  of  the  Commonwealth  has  died ; 
an  upright  judge,  who  devoted  more  than  twenty-three 
years  to  the  administration  of  justice  has  gone ;  a  lawyer 
of  remarkable  ability,  a  leader  of  the  bar,  has  passed  over 
to  the  majority;  and  a  stately  form  and  figure,  and  a 
familiar  face,  indicative  of  great  intellectual  strength, 
crowned  with  the  silver  of  more  than  three  score  years  and 
ten,  will  be  seen  among  us  no  more.  It  is  appropriate,  on 
an  occasion  like  this,  to  pause  and  consider  his  character, 
the  lessons  he  has  left  us,  and  take  note  of  his  departure. 


OF  A  LONG  LIFE.  71 


The  opinions  which  Judge  Lord  has  written,  in  behalf 
of  this  court,  are  contained  in  the  reports,  and  will  be  pre- 
served for  our  future  use  and  benefit.  He  was  a  good 
writer,  but  a  better  speaker;  he  was  an  orator,  and  will 
be  most  appreciated  and  best  remembered  by  us,  who  had 
the  opportunity  to  see  and  hear  him  as  a  lawyer,  arguing 
an  important  cause  to  the  court  or  jury,  with  a  power  and 
eloquence  rarely  excelled,  or,  as  a  judge  charging  the  jury 
in  a  capital  trial,  with  a  clearness  of  diction,  terseness  of 
expression,  and  comprehensiveness  of  statement,  unsur- 
passed". 


Death  of  my  Oldest  Beothek. 

My  oldest  brother,  Henry  Luther  Sherman,  an  at- 
torney, had  suffered  more  or  less  from  ill  health,  and  he 
commenced  early  in  the  year  1868,  to  show  signs  of 
paralysis.  His  wife  died  of  consumption  in  March.  He 
came  to  my  house  and  stayed  until  sometime  in  June,  and 
then  under  the  physician's  advice  he  went  with  a  nurse  to 
Springfield,  Vermont,  to  the  home  of  our  sister,  Mrs. 
Malvina  E.  Backus.  There  he  continued  to  suffer  until 
September,  when  he  died.  He  left  two  children,  Henry 
Leslie  Sherman,  now  cashier  of  the  Lawrence  National 
Bank,  and  Mrs.  Alice  Sherman  Taylor,  now  living  in 
Methuen,  Massachusetts. 

My  brother  when  hobbling  around  on  crutches,  before 
going  to  Vermont,  met  Samuel  Allison,  before  referred  to 
in  this  volume,  who  was  inclined  to  be  somewhat  profane 
and  a  good  deal  of  a  wag,  who  was  also  on  crutches,  having 
suffered  much  from  inflammatory  rheumatism.  They 
talked  together  of  their  troubles  and  misfortunes.  Finally 
they   parted,    bidding    each    other    good-day.      Soon    my 


72  SOME  RECOLLECTIONS 

brother  heard  Mr.  Allison  shouting  to  him,  and  he 
hobbled  back  to  the  corner  of  the  street  where  they  met 
again.  ''Well",  said  Mr.  Allison,  "Mr.  Sherman  you 
must  remember  that  whom  the  Lord  loveth  he  chasten- 
eth". 


Assistant  Adjutant  Geneeal. 

On  the  21st  of  August,  1867,  I  was  commissioned  by 
Governor  Bullock  as  Assistant  Adjutant  General  and  as 
Chief  of  Staff,  in  the  Division  of  the  Militia,  with  the  rank 
of  colonel. 

Major  General  Benjamin  F.  Butler  commanded  the 
division.     The  staff  was  as  follows: 

Colonel  Edgar  J.  Sherman,  Assistant  Adjutant  General, 
Chief  of  Staff ;  Colonel  York  G.  Hurd,  Medical  Director ; 
Lieutenant  Colonel  George  J.  Carney,  Assistant  Quarter- 
master General ;  Lieutenant  Colonel  William  H.  Lawrence, 
Assistant  Inspector  General;  Major  Roland  G.  Usher, 
Aid-de-camp ;  Major  Edward  J.  Jones,  Aid-de-camp ; 
Major  Edward  L.  Barney,  Judge  Advocate;  Major  John 
W.  Kimball,  Engineer. 

General  Butler  was  then  a  member  of  Congress. 

An  order  was  issued  requiring  all  communications  to 
the  headquarters  of  the  division  to  be  addressed  to  the 
Assistant  Adjutant  General  at  Lawrence.  From  that  time 
until  1876,  when  the  division  was  abolished,  I  practically 
managed  the  division,  except  at  muster  each  year,  when 
General  Butler  was  present.  The  general  was  away  and 
did  not  desire  to  be  troubled  with  the  details,  so  he  re- 
quested me  to  attend  to  the  duties,  expressing  confidence 
in  my  ability  to  do  so. 


COLONEL    EDGAR   J.   SHERMAN 
Assistant  Adjutant  General,   Massachusetts   Militia,    1867 


Xr 


^..vv  -(O'.B 


OF  A  LONG  LIFE.  73 


The  duties  of  the  oflfice  required  more  or  less  time,  but 
I  was  interested  in  the  militia  and  enjoyed  the  service. 

In  September  in  the  year  1870  there  was  an  encamp- 
ment of  all  the  militia  of  the  Commonwealth  at  Concord. 
It  was  the  first  muster  of  all  the  militia  since  the  war. 
The  Governor,  William  Claflin,  attended  the  encampment 
and  reviewed  the  troops,  remained  on  the  field  over  night, 
and  there  was  a  grand  reception  in  the  big  tent  in  the 
evening.     The  militia  was  in  good  condition  and  the  en- 


campment was  a  grand  success. 


A  Teip  Abeoad. 

In  the  summer  of  1875,  in  company  with  Colonel  Roland 
G.  Usher,  Ephraim  A.  Ingalls,  and  Charles  H.  Hudson  of 
Lynn,  Andrew  C.  Stone  (afterwards  Judge  of  the  Police 
Court  of  Lawrence)  and  I  took  a  trip  abroad.  We  sailed 
from  l^ew  York  on  steamer  City  of  Richmond,  June  26th, 
1875,  and  arrived  in  Queenstown  on  the  evening  of  July 
4th. 

We  left  the  steamer  there,  visited  Cork,  the  Lakes  of 
Killamey  and  Dublin.  Then  visited  Old  Chester,  Strat- 
ford-on-Avon,  and  from  there  went  to  London,  where  we 
remained  about  a  week. 

We  went  from  London  to  Brussels,  visited  the  battle- 
field of  Waterloo,  driving  out  from  Brussels,  going  over 
nearly  the  same  route  which  Wellington's  troops  took  to 
reach  that  place.  We  went  from  Brussels  to  the  Rhine, 
and  up  that  river  as  far  as  Strasburg,  across  the  country 
to  Switzerland,  visited  Lucerne,  and  up  Rigi,  through 
Switzerland  to  Geneva.  From  there  to  Paris,  where  we 
remained  nearly  a  week.  About  Paris  we  saw  many 
marks  of  the  war  between  France  and  Germany. 


74  SOME  EECOLLECTIONS 


We  returned  to  London,  and  after  a  few  more  days 
there  came  to  Liverpool,  and  sailed  in  the  City  of  Berlin 
for  !N^ew  York.  I  arrived  home  about  September  1,  in 
season  to  meet  my  youngest  child,  my  daughter  Maude, 
(now  Mrs.  F.  H.  Eaton  of  Lawrence),  who  was  born 
September  5th,  1875. 

James  A.  Gillis  of  Salem,  joined  our  party  in  London. 

My  companions  were  agreeable  gentlemen,  good  travel- 
ers, and  we  had  a  pleasant  and  enjoyable  vacation. 

They  have  all  since,  except  Mr.  Gillis,  passed  over  to 
the  great  majority. 

The  Attoeney  Generalship. 

In  the  fall  of  1882  I  was  a  candidate  for  Attorney  Gen- 
eral. The  first  mention  of  the  subject,  which  I  saw,  was 
in  the  Lynn  Transcript,  and  was  as  follows: 

"There  are  evidently  to  be  some  changes  in  the  republi- 
can state  ticket  this  year.  Hon.  George  Marston  of  New 
Bedford,  the  attorney  general,  it  is  understood  will  de- 
cline a  nomination  for  that  office.  The  practice  of  pro- 
moting judges  from  the  Superior  to  the  Supreme  Court, 
and  district  attorneys  to  the  office  of  attorney  general,  is 
a  wise  one ;  such  promotion  of  deserving  officials  being  the 
best  kind  of  civil  service  reform.  We  have,  in  Essex 
County,  a  district  attorney  who  is  acknowledged  to  be 
a  faithful,  competent  and  deserving  officer,  and  who  is  one 
of  the  ablest  and  the  best  in  the  Commonwealth ;  while  we 
should  dislike  to  lose  his  experience  and  efficiency  in  his 
present  office,  yet  he  deserves  to  receive  the  honor  of  being 
elected  attorney  general,  an  office  for  which  he  is  par- 
ticularly well  fitted,  and  which  he  would  fill  to  the  entire 
satisfaction  of  the  public  and  with  great  credit  and  honor 
to  the  state.  We  sincerely  hope  that  for  this  office  the 
coming  republican  state  convention  will  nominate  Colonel 
Edgar  J.  Sherman  of  Lawrence". 


OF  A  LONG  LIFE.  75 

It  was  followed  by  articles  in  the  "Dedham  Trans- 
cript", the  "Haverhill  Daily  Bulletin",  "Lowell  Courier", 
"Bristol  County  Republican",  "Essex  Eagle",  "Spring- 
field Union",  "Lowell  Mail",  "Salem  Gazette",  "Lynn 
Union",  "Maiden  City  Press",  "Boston  Herald",  "Taun- 
ton Daily  Gazette",  "Boston  Traveller",  "ISTewburyport 
Herald",  "Lawrence  American",  and  many  other  news- 
papers. 

At  the  Republican  convention  at  Worcester,  Septem- 
ber, 1882,  the  informal  ballot  was  as  follows: 


Edgar  J.  Sherman  of  Lawrence,  had 


400 
322 
95 
98 
10 


James  M.  Barker  of  Pittsfield,  had 
Edward  P.  Brown  of  Boston,  had  . 
W.  S.  B.  Hopkins  of  Worcester,  had 
Scattering, 

and  there  was  no  choice.  It  was  moved  to  nominate  me 
by  acclamation.  After  speeches  by  General  William  Cogs- 
well of  Salem,  Major  George  S.  Merrill  of  Lawrence,  in 
favor  of  the  motion,  and  General  Morris  Schaff  against, 
the  motion  was  carried,  and  I  was  nominated. 

On  election  day  the  vote  was  as  follows  for  Attorney 
General : 

Edgar  J.  Sherman  of  Lawrence,     .     .     .  137,008 

George  F.  Very  of  Worcester,     ....  114,453 

Elmer  A  Snow  of  Athol, 4,265 

Samuel  M.  Fairfield  of  Maiden,     .     .     .  2,098 

It  was  the  year  that  General  Butler  was  elected  Gov- 
ernor and  Oliver  Ames,  Lieutenant  Governor. 

On  the  last  of  December,  I  resigned  the  office  of  district 
attorney,  which  I  had  held  for  fourteen  years,  having  been 
elected  five  times,  for  a  term  of  three  years  each  term  and 
having  a  year  more  to  serve.  Governor  Long  appointed 
Henry  P.  Moulton  of  Salem  to  fill  the  vacancy. 


76  SOME  EECOLLECTIONS 

The  office  has  since  been  held  by  Henry  F.  Hurlburt  of 
Lynn,  and  William  H.  Moody  of  Haverhill,  now  Justice 
of  the  Supreme  Court  of  the  United  States. 

I  was  renominated  and  elected  to  the  office  of  attorney 
general  for  the  four  succeeding  years.  James  M.  Barker, 
who  was  the  leading  candidate  for  attorney  general 
against  me,  in  the  republican  convention,  was  in  December 
of  that  year,  appointed  a  justice  of  the  Superior  Court. 
In  1891  he  was  appointed  a  justice  of  the  Supreme 
Judicial  Court,  which  position  he  held  until  his  death  in 
1905.  There  was  no  jealousy  in  Judge  Barker's  make- 
up and  we  became  firm  friends. 


Sudden  Ili^ness. 

I  had  been  working  very  hard  for  several  years  prior 
to  my  election  as  attorney  general. 

On  August  seventh,  while  talking  with  the  Governor  in 
the  executive  chamber,  I  remarked  to  the  Governor,  "There 
is  something  the  matter  with  me.  I  am  losing  my 
memory". 

Governor.  You  look  all  right.  You  know  me,  don't 
you? 

Sherman.     Yes;  you  are  Governor  Butler. 

Governor.  You  know  that  portrait  on  the  wall,  don't 
you? 

Sherman.     Yes;  that  is  Governor  Everett. 

Governor.  Where  did  you  come  from  this  morning, 
Gloucester  or  Lawrence? 

Sherman.     I  do  not  know. 

It  was  ascertained  that  I  had  lost  my  memory  for  the 
past,  although  I  knew  and  appreciated  the  present  per- 
fectly well. 


OF  A  LONG  LIFE.  77 


Dr.  Ayer,  who  lived  near  the  State  House,  was  sent  for, 
and  he  took  me  to  his  house  and  sent  for  Dr.  George  F. 
Jelly.  I  was  put  to  bed  and  given  medicine.  Six  hours 
afterwards,  I  awoke  from  a  sleep  and  found  myself  in  a 
strange  house.  I  could  not  then  recall  any  of  the  transac- 
tions of  that  day.  Up  to  that  time,  the  day  was  a  blank 
to  me. 

In  the  meantime,  the  Governor  had  sent  for  Mrs. 
Sherman,  and  I  overheard  her  talking  with  the  doctors  in 
an  adjoining  room,  in  which  the  physicians  were  evidently 
trying  to  find  a  cause  for  such  an  attack.  She  stood  up  for 
me  well,  denying  that  I  had  any  bad  habits. 

The  next  morning,  I  cross-examined  the  doctors  as  to 
their  opinion  of  my  future.  Must  I  give  up  my  profes- 
sional work  entirely?  Should  I  have  more  attacks  of 
unconsciousness,  and  finally  die  in  one?  I  insisted  upon 
being  told  "the  truth,  the  whole  truth,  and  nothing  but  the 
truth". 

They  said  I  had  had  a  sudden  and  violent  attack,  which 
had  caused  unconsciousness  for  several  hours,  but  that  I 
had  come  out  of  it  with  a  clear  mind,  and  that  there  had 
been  no  paralysis,  which  was  encouraging.  They  were  of 
the  opinion,  with  absolute  rest  for  a  month  or  more,  I 
would  gradually  come  out  all  right.  They  could  find  no 
cause  for  the  attack,  except  overwork. 

I  did  as  I  was  advised ;  I  did  no  work ;  did  not  read  the 
newspapers  or  write  a  letter  for  over  a  month.  The  life 
insurance  agents  had  been  to  see  me  several  times,  trying 
to  induce  me  to  take  policies  on  my  life.  Soon  after  my 
return  to  the  office,  they  came  again.  I  welcomed  them 
cordially,  told  them  I  would  take  all  the  insurance  I  could 
obtain;  but,  I  said,  before  you  take  my  application,  you 
had  better  see  Drs.  Ayer  and  Jelly,  and  if  you  do,  I  do 
not  believe  you  will  see  me  again  for  at  least  a  year. 


78  SOME  EEOOLLECTIOlSrS 

I  guessed  right.  In  about  thirteen  months  they  came 
again.  They  told  me  that  the  doctors  said  that  if  I  did 
not  have  another  attack  or  any  unfavorable  symptoms  for 
a  year,  I  might  be  a  fair  risk. 

I  made  an  application  to  one  of  the  old  line  companies, 
and,  after  a  most  thorough  physical  examination,  they 
gave  me  a  ten  years'  endowment  policy.  I  took  policies  in 
the  assessment  and  fraternal  companies.  At  the  end  of 
the  ten  years  I  was  paid  the  amount  of  the  old  line  endow- 
ment policy.  I  have  outlived  all  the  assessment  com- 
panies, and  all  the  fraternal,  except  one,  and  I  must  die 
soon,  or  I  shall  outlive  that  one. 


CHAPTER  VI. 


ATTORNEY  GENERALSHIP,— Con^mwet?. 


Dk.  Franklin  Pierce. 

While  I  was  Attorney  General,  one.  Dr.  Franklin 
Pierce,  a  practising  physician  in  Worcester,  killed  a 
woman,  Mary  A.  Bemis,  sick  of  fever,  by  soaking  her  in 
kerosene  oil.  It  seemed  to  be  a  clear  case  of  killing  by  the 
malpractice  of  a  qnack. 

It  had  been  decided  by  our  Supreme  Court  in  1809  in 
case  of  Commonwealth  vs.  Thompson,  6  Mass.  R.  134, 
that  a  physician  killing  a  person  under  such  circumstances 
was  not  liable  for  murder  or  manslaughter.  Most  of  the 
other  states  of  the  Union  had  followed  that  decision.  The 
English  decisions  were  the  other  way,  holding  that  a  phy- 
sician killing  a  patient  by  criminal  negligence  was  guilty 
of  manslaughter. 

I  advised  the  District  Attorney  to  instruct  the  Grand 
Jury  to  find  an  indictment  against  Pierce  for  man- 
slaughter, provided  they  found  him  guilty  of  criminal 
negligence,  foolhardy  presumption,  etc.  Pierce  was  in- 
dicted, and  subsequently  tried  before  Justice  Pitman,  and 
convicted. 

His  case  was  taken  to  the  Supreme  Court  where  it  was 
fully  argued  by  Mr.  Goulding,  a  leading  attorney,  for  the 
defendant,  and  by  me  in  behalf  of  the  Commonwealth.    I 


80  SOME  EECOLLECTIONS 

was  very  much  interested  in  the  case  and  felt  the  indict- 
ment should  be  sustained.  I  spent  considerable  time  in 
preparing  my  brief,  citing  all  the  cases  in  this  country 
and  in  England.  The  case  was  ably  argued  by  Mr. 
Goulding  in  behalf  of  the  defendant.  The  court  took  my 
opinion  of  the  law  and  held  that  the  conviction  was  right. 
(See  Commonwealth  vs.  Franklin  Pierce,  165  Mass.  E.) 

During  that  summer,  1884,  Lord  Coleridge,  Chief 
Justice  of  England,  visited  this  country,  and  while  in 
Massachusetts,  I,  as  attorney  general,  helped  to  entertain 
him.  He  was  a  very  agreeable  and  entertaining  gentle- 
man. I  dined  with  him  several  times  and  became  an  ad- 
mirer of  his. 

After  he  returned  to  England  I  sent  him  a  copy  of  my 
printed  brief,  not  anticipating  an  acknowledgement  even. 
I  received  the  following  autograph  letter: 

"Heath's  Court 
Ottery  S.  Macy 
Devon 
October  17th,  1884. 
Dear  Sir: 

I  thank  you  sincerely  for  the  copy  of  your  argument  in 
Commonwealth  vs.  Pierce  which  you  have  been  so  good  to 
send  to  me.  The  argument  is,  if  I  may  say  so,  remark- 
ably clear  and  able,  and  I  hope  that  the  doctrine  of  Lord 
Hale  as  explained  by  Lord  Lyndhurst  may  be  established 
with  you  as  it  is  with  us. 

Anything  which  reminds  me  of  the  kindness  and  gen- 
erosity which  I  experienced  in  America,  is  I  assure  you, 
at  all  times  especially  grateful  to  me. 

Believe  me  to  be.  Dear  Mr.  Attorney  General, 

Your  obliged  and  grateful  servant, 

Coleridge. 

The  Attorney  General  of  Massachusetts". 


OF  A  LONG  I.IFE.  81 


I  received  many  other  letters  from  distinguished 
Judges,  among  them  the  following  from  Judge  Edmund 
II.  Bennett,  Dean  of  Boston  University  Law  School. 

"Boston,  Kov.  29,  1884. 
My  Dear  Sir: 

I  have  been  delighted  with  your  brief  in  the  Pierce 
case  in  Worcester,  which  I  have  just  read.  I  have  no 
doubt  your  view  is  correct.  There  cannot  be  one  rule  of 
criminal  responsibility  for  ordinary  persons,  and  another 
and  lower  one  for  physicians.  If  anything  it  should  be 
higher.  I  am  glad  that  you  have  removed  an  anomaly 
from  our  criminal  jurisprudence. 

Very  respectfully  yours, 

Edmund  H.  Bennett. 
Hon.  E.  J.  Sherman,  Attorney  General". 

Governor  Butler  asked  one  of  his  aides-de-camp.  Col. 
John  P.  Sweeney,  to  accompany  the  Attorney  General  to 
]^ewburyport  to  meet  the  Lord  Chief  Justice  as  he  came 
into  the  Commonwealth  and  to  entertain  him  for  the 
day,  the  Governor  himself  being  out  of  the  state.  After 
luncheon  at  the  hotel,  we  suggested  to  his  Lordship  a  drive 
about  the  city  and  suburbs. 

When  seated  in  the  carriage,  we  asked,  "Where  shall 
we  go  first"  ?  The  Chief  Justice  said,  "Suppose  we  look 
at  the  place  where  we  had  the  trouble  about  the  tea".  The 
driver  was  directed  to  take  us  to  T  Wharf.  Here  the  Chief 
Justice  took  a  look  at  the  water  and  seemed  to  be  just  as 
well  satisfied,  as  if  told  that  he  could  not  see  the  exact 
spot  as  it  had  been  filled  and  built  over. 

Later  when  Col.  Sweeney  and  I  reported  to  Governor 
Butler  about  the  tea  episode  he  laughed  heartily,  but  did 
not  "give  us  away"  to  the  Chief  Justice. 

Governor  Butler  sent  to  Mrs.  Sherman  a  silver  cup  and 
saucer  with  the  following  note,  which  is  self-explanatory. 


82  SOME  RECOLLECTIONS 

State  House,  Boston. 

November  24,  1883. 
My  Dear  Madam: 

On  this  25th  return  of  j^our  marriage  day  (may  the 
future  be  as  happy  as  the  past)  accept  this  little  token  of 
my  love  and  esteem  for  yourself  and  husband — the  ripened 
fruit  of  many  years  of  kindly  regard  from  both.  The  in- 
trinsic value  of  this  silver  cup  and  saucer  is  nought,  yet  I 
care  for  it  as  a  faithful  servant  which  during  my  several 
campaigns  during  the  late  war,  always  came  to  the  "front'' 
when  "black  coifee"  was  called.  I  trust  it  may  be  valued 
by  you  for  the  sake  of  the  giver,  as  a  remembrance,  as  it 
has  been  useful  to  him. 

Most  truly  Your  Friend, 

Benjamin  F.  Butlek. 
Mrs.  Edgar  J.  Sherman. 


Case  of  James  ISTichglson. 

I  appointed  Harvey  ]^.  Shepard,  Esq.,  the  assistant  at- 
torney general,  and  Henry  A.  Wyman  the  law  clerk. 

The  cases  in  which  the  Commonwealth  was  a  party  or 
interested,  and  argued  by  Mr.  Shepard  or  myself,  are  re- 
ported in  the  Massachusetts  Reports,  from  134  to  145, 
inclusive. 

While  serving  as  district  attorney  for  a  period  of  four- 
teen years  I  assisted  the  attorney  general  in  trial  of  the 
murder  or  capital  cases,  which  occurred  in  the  Eastern 
Criminal  law  district. 

While  attorney  general,  with  the  assistance  of  the  dis- 
trict attorneys  in  the  several  districts,  I  tried  in  behalf  of 
the  Commonwealth  all  the  capital  cases.  One  of  these 
cases  tried  in  Suffolk  was  Conimonwealth  vs.  James 
Nicholson. 


OF  A  LONG  LIFE.  83 


JSTicholson  was  an  ex-police  officer,  had  married  a  wife 
from  the  north  end,  had  a  little  girl  two  years  old,  and 
Mrs.  Nicholson  was  pregnant,  and  owing  to  some  trouble 
with  her  husband,  who  was  out  of  work  and  drinking  more 
or  less  of  intoxicating  liquor,  had  left  him  and  gone  to  live 
with  her  mother. 

He  went  there  on  the  morning  of  the  murder,  fired  two 
shots  and  killed  her. 

Commonwealth  of  Massachusetts. 
Supreme  Judicial  Court.  Suffolk,  ss. 

December  17,  1884. 

Commonwealth  vs.  James  I^icholson. 

Charged  by  Indictment  with  the  Wilful  Murder  of  his 

wife,  Ellen. 

Third  day  of  the  trial  before  Devens  and  Holmes,  Justices. 

Edgar  J.  Sherman,  Attorney  General,  Oliver  Stevens, 
District  Attorney,  for  the  government. 

Stillman  B.  Allen,  Owen  A.  Galvin,  for  the  prisoner. 

An  Abstract  of  the  Argument  of 

Edgar  J.    Sherman,   Attorney   General 

In  behalf  of  the  government. 

May  it  please  your  Honors,  and  you,  Mr.  Foreman,  and 
gentlemen  of  the  jury: — 

I  congratulate  you,  gentlemen,  that  we  are  so  near  the 
end  of  this  painfully  interesting  and  important  trial. 

When  the  newspapers,  on  the  afternoon  of  April  22 
last,  announced  that  James  Nicholson  had  murdered  his 
wife,  and  had  made  his  escape,  the  whole  community  of 
the  city  of  Boston  and  the  people  of  the  Commonwealth 


84  SOME  KECOLLECTIONS 

received  a  shock.  After  reading  the  particulars  of  what 
then  seemed  a  cold-blooded  murder,  they  remembered  that 
for  many  years  the  city  had  been  spared  the  horror  of  a 
similar  tragedy,  and  they  marvelled  that  such  a  crime 
could  be  committed  in  mid-day,  in  broad  daylight,  and 
the  murderer  escape. 

As  days  and  weeks  passed  the  people  became  impa- 
tient. They  complained  of  what  seemed  to  them  inactivity 
on  the  part  of  the  officers  of  the  law;  they  asked:  "Have 
we  really  a  police  force"  ?  they  murmured,  because  the 
murderer  was  not  detected  and  arrested,  at  the  inefficiency 
of  the  officers  of  the  city  and  state. 

But  while  this  natural  impatience  was  manifesting  it- 
self in  the  newspapers,  the  officers  of  the  law,  who  cannot 
publish  to  the  world  the  information  they  receive,  as 
thereby  they  impart  to  the  absconding  criminal  the  pro- 
gress of  their  search,  were  quietly,  noiselessly  and  zealous- 
ly prosecuting  their  plans  for  the  capture  of  the  fugitive. 

]^ot  until  June  10th  did  the  telegraph  inform  us  that 
the  prisoner  had  been  arrested  in  Montreal.  A  few  days 
later,  he  was  brought  back  to  Boston  by  Sergeant  Symonds 
of  the  Boston  Police  force,  and  lodged  in  jail,  to  await 
arraignment  and  trial  upon  an  indictment  presented  by 
the  grand  jury  of  Suffolk  county,  charging  him  with  the 
wilful  murder  of  his  wife.  When  it  was  ascertained  that 
[Nicholson  had  been  arrested,  brought  back  to  Boston  and 
committed  to  jail,  the  excitement  subsided.  In  the  in- 
terim the  murdered  wife  had  been  buried,  and  the 
shocking  tragedy,  which  deprived  her  of  life  in  early 
womanhood,  had  been  partially  forgotten.  Our  attention 
is  now  attracted  to  the  living.  His  friends  rally  to  his 
defence,  speak  of  his  good  deeds,  good  character  and  kind- 
ly disposition.  Our  sympathy  begins  to  turn  from  the 
dead  wife  to  the  living,  suffering  and  weeping  husband. 


OF  A  LONO  LIFE.  85 


This  is  usual  and  natural.  We  sympathize  with  present 
trouble  and  suffering. 

My  friend,  Mr.  Allen,  counsel  of  the  prisoner,  tells 
you,  while  making  a  sympathetic  appeal  to  you  in  behalf 
of  his  client,  to  harden  your  hearts  against  the  argument 
of  the  Attorney  General;  that  he  will  give  you  "cold 
logic",  without  tenderness  or  sympathy. 

Does  Brother  Allen  imagine  himself  the  only  person 
in  the  court  room  possessed  of  a  heart  ? 

I  trust  I  pity  the  prisoner  as  much  as  counsel  does.  We 
all  sympathize  with  a  man  in  sore  trouble.  I  cannot  see 
a  man  like  the  prisoner,  weeping  upon  the  witness  stand, 
as  though  he  were  beginning  to  realize  the  terrible  crime 
he  had  committed  and  to  feel  the  great  peril  he  is  in, 
without  pity.  ^N^either  am  I  unmindful  of  your  tears  and 
manifest  sympathy  for  him,  nor  do  I  complain  thereat. 
Our  hearts,  our  sympathies,  are  the  best  part  of  our 
natures. 

Before  proceeding  to  a  discussion  of  the  evidence,  I  de- 
sire to  call  your  attention  to  two  statements  of  the  counsel 
for  the  prisoner. 

First,  he  makes  an  appeal  to  you  to  save  this  prisoner 
from  the  gallows  and  from  imprisonment  for  life,  because 
he  hails  from  the  same  county  and  state, — York  County, 
Maine, — that  counsel  does;  he  says  it  would  be  a  gratifi- 
cation, and  he  would  consider  it  a  personal  favor  and 
compliment  to  be  allowed  to  take  the  prisoner  home  to  his 
father  and  mother  in  Maine. 

Has  it  come  to  this  ?  Are  you  in  a  court  of  justice  ? 
Are  we  engaged  in  the  solemnity  of  a  capital  trial  ?  Away 
with  such  childlike  and  puerile  suggestions!  They  have 
no  proper  place  here.  The  second  suggestion  is,  that  I 
shall  beg,  appeal  and  implore  you  to  convict  the  prisoner. , 

Gentlemen,  I  shall  do  nothing  of  the  kind.     This  is  an 


86  SOME  EECOLLECTIONS 

important  trial.  I  have  a  duty  to  perform,  and  so  have 
jou.  If  I  do  my  duty  fully  and  faithfully,  it  is  of  little 
personal  consequence  to  me  how  you  perform  and  dis- 
charge yours.  You  have  more  responsibility  in  the  ver- 
dict which  shall  be  rendered  than  I.  You  are  citizens  of 
Boston;  your  names  have  been  given  to  the  public,  as  the 
"good  men  and  true",  who  have  sworn  that  you  have  no 
such  prejudices  against  capital  punishment  as  would  pre- 
vent you  from  rendering  a  true  verdict,  and  that  you  will 
try  the  case  according  to  the  law  and  the  evidence  given 
you.  You  are  to  decide  whether  a  man  can  commit  a 
deliberate  murder  with  premeditation  and  malice,  and 
escape  the  consequences.  You  are  to  determine  whether 
life  is  sacred  and  under  the  protection  of  law  in  Boston. 
I  am  not  a  resident  of  the  city.  You  have  more  at  stake 
than  I  have.  Your  verdict  on  the  morrow  will  show  to  the 
world  your  appreciation  of  a  human  life,  and  the  protec- 
tion you  would  furnish  it.  Mrs.  ^Nicholson's  life  was  as 
valuable  to  her,  and  as  much  under  the  protection  of  the 
law,  on  Cross  street,  as  any  life  on  Beacon  street. 

There  are  three  possible  verdicts  which  may  be  ren- 
dered upon  this  indictment.  Murder  in  the  first  degree, 
murder  in  the  second  degree,  and  not  guilty  by  reason  of 
insanity.  You  have  no  right  to  return  a  verdict  of  man- 
slaughter under  the  evidence. 

The  government  must  prove  its  case  beyond  a  reason- 
able doubt.  The  adjective  reasonable  is  significant  and 
important  to  remember.  There  is  nothing  in  this  life 
absolutely  certain  and  sure.  Impossibilities  are  not  re- 
quired. We  are  not  to  prove  a  case  beyond  a  possible 
doubt.  We  are  to  satisfy  your  reason.  There  is  no  mys- 
tery about  a  court  of  justice.  You  take  with  you  into  the 
jury  box  your  common  sense,  your  intelligence,  your  ex- 


OF  A  LONG  LIFE.  87 


perience,  and  all  the  ability  God  has  given  you.  You  act 
there  as  you  act  outside  upon  important  questions. 

Drunkenness  and  insanity  have  been  imported  into  this 
cause.  !N^either  have  any  right  or  place  in  it.  The  pris- 
oner was  sober,  not  intoxicated,  on  the  twenty-second  day 
of  April,  when  he  committed  this  great  crime.  The  case 
has  been  discussed  as  if  it  were  proven  that  Kicholson  was 
drunk  on  that  day.  I  repeat,  there  is  not  a  scintilla  of 
evidence  from  any  source  to  prove  it,  as  I  shall  show  by 
and  by. 

We  start,  then,  on  that  morning,  with  a  sober,  rational 
and  responsible  being ;  a  man  who  had  had  a  quarrel  with 
his  wife,  a  separation  from  her  on  two  occasions,  and  who 
is  now  living  separate  and  apart  from  her  on  that  account. 
Two  persons  only  know  the  extent  of  that  quarrel,  and  the 
cause  of  it.  The  lips  of  one  are  sealed  by  death,  and  the 
other,  the  prisoner,  dare  not  and  will  not  tell  you.  The 
jealousies  and  quarrels  between  husbands  and  wives  are 
not  proclaimed  upon  the  housetops  and  are  generally 
known  only  to  the  parties.  It  appears,  however,  that  the 
prisoner  had  aided  in  the  support  of  his  bastard  child, 
born  of  another  woman,  prior  to  his  marriage  to  Mrs. 
Nicholson,  and  that  she  knew  the  fact,  and  also  knew  that 
the  mother  of  that  child  continued  to  reside  in  the  vicinity 
of  her  husband's  residence.  If  Mrs.  Nicholson  was  not 
jealous,  under  such  circumstances,  she  was  a  remarkable 
woman. 

Mrs.  Nicholson  persisted  in  living  at  this  lodging-house, 
"this  cheap  lodging-house",  where,  as  counsel  says,  "th^y 
took  lodgers  at  fifteen  cents  a  head", — against  her  hus- 
band's wishes  and  protest.  She  had  also,  against  his  will, 
and  while  he  was  away,  taken  all  his  household  goods,  of 
every  kind  and  description,  from  his  residence  and  moved 
them  to  and  placed  them  in  this  same  "cheap  lodging- 


88  SOME  EECOLLECTIONS 

house" !  The  quarrel  between  them  was  greatly  aggra- 
vated on  this  account.  He  had  not  seen  her  for  five  weeks, 
except  once,  when  he  was  sent  for  to  come  and  see  the  sick 
baby.  His  remarks  then  about  keeping  the  baby  in  "such 
a  place"!  showed  still  his  feeling. 

But,  gentlemen,  I  cannot  show  you  the  extent  of  this 
quarrel,  his  jealousy  of  her  or  hers  of  him,  because  the 
dead  cannot  speak;  I  do,  however,  establish  beyond  con- 
troversy the  fact  that  there  was  a  quarrel,  and  that  it 
commenced  in  January,  existed  afterwards,  deepening 
and  widening,  during  all  which  time  the  prisoner  had 
pondered  over  it,  brooded  over  it,  becoming  moody,  and 
seeking  relief  in  the  old  way,  by  the  use  of  the  cup  that  in- 
toxicates. By  reading  now  the  history  of  his  life  since 
January,  you  see  him  gradually  drifting  into  the  condition 
of  jealousy  and  exasperation  in  which  he  contemplates  the 
deed;  and  then  he  uses  liquor,  as  it  is  used  by  almost  all 
criminals,  to  give  courage  and  to  steady  his  nerves. 

He  had  been  drinking  heavily  for  several  days,  and 
was  more  or  less  intoxicated  on  several  occasions.  He  is 
now  prepared  for  the  deed  of  blood!  He  walks  calmly  to 
the  house,  plays  with  the  baby  until  the  wife  comes  in. 

"Hallo,  Jim,  you  are  quite  a  stranger",  says  the  wife. 
He  talks  again  about  going  to  ISTew  York.  Finding  him 
calm  and  sober,  she  takes  their  baby  and  invites  him  into 
the  other  room.  She  knew  him  better  than  anybody  else. 
Do  you,  gentlemen,  believe  for  a  moment  that  she  would 
have  invited  him  into  that  front  room  alone,  unless  he 
was  perfectly  sober,  or  if  he  was  then  insane,  having  a  fit 
of  delirium  tremens  ? 

They  have  been  in  the  other  room  but  a  short  time,  a 
few  minutes,  when  loud  words  are  heard.  He  is  heard  to 
say,  "Take  that"!  and  the  discharge  of  a  pistol  follows. 
The  witnesses  rush  in ;  the  prisoner  is  standing  in  the  mid- 


OF  A  LONG  LIFE.  89 


die  of  the  room,  pistol  in  hand;  the  wife  is  lying  back  in 
the  rocking  chair;  the  dress  sleeve  on  her  left  arm  is  on 
fire  from  the  powder  of  the  pistol.  She  exclaims,  "He  has 
killed  me  at  last" ! — the  ball  had  hit  her  left  arm  and 
glanced  into  her  body.  Her  brother,  putting  out  the  fire 
on  her  sleeve  says,  "Ko,  you  are  not  dead;  he  has  not 
killed  you".  There  is  more  talk;  the  brother  tries  to  re- 
assure her.  According  to  the  evidence  of  the  boy,  Con- 
way, who^ran  down  stairs  and  to  Salem  street  and  gave 
the  alarm,  a  minute  and  a  half  elapsed  between  the  first 
and  second  shot.  Nicholson  says,  "If  I  haven't  killed  you, 
I  will" !  and  then  puts  a  bullet  directly  through  her  heart. 
He  waits  to  see  her  die,  then  exclaims,  "I  am  a  murderer, 
and  I  meant  it" !  passes  slowly  down  stairs,  lights  his 
cigar,  calmly  walks  down  the  street,  and  makes  his  escape. 
If  that  is  not  murder  with  deliberately  premeditated  mal- 
ice aforethought,  I  do  not  know  what  is. 

Gentlemen  of  the  jury,  the  language  of  Mrs.  Nicholson 
throws  a  flood  of  light  on  the  case;  it  is  like  her  dying 
declaration.  He  was  sober ;  she  did  not  suspect  him.  She 
must  have  feared  him.  He  says,  "Take  that" !  and  fires. 
She  who  had  been  threatened,  frightened,  and  who  had 
feared  death  at  his  hands,  while  she  believes  she  is  dying, 
exclaims,  "He  has  killed  me  at  last"!  There  is  a  whole 
volume  of  secret  history  revealed  in  these  six  words.  They 
lift  the  curtain  and  enable  us  to  observe  his  deliberation 
and  premeditation.  As  we  hear  them,  we  see  the  jealousy, 
madness  and  malice  which  cause  him  to  murder.  They  are 
the  key  which  unlocks  the  door  to  his  motive  and  deliber- 
ate purpose  to  kill. 

After  those  significant  words  are  uttered  by  her  and  re- 
veal to  him  her  previous  fear,  dread  and  expectation  of 
death  at  his  hands,  his  exclamation  and  acts  confirm  hers, 
and  give  clear  interpretation  of  his  purpose  and  motive 


90  SOME  KECOLLEOTIONS 

in  firing  the  first  shot.  "If  I  have  not  killed  you,  I  will". 
Now  he  waits  until  death  receives  his  victim,  and  then  he 
interprets  her  declaration  and  all  his  previous  acts  with 
language  as  impressive  and  vitally  conclusive  as  though 
written  in  letters  of  fire  upon  the  heavens  above  him.  "I 
am  a  murderer,  and  I  meant  it" ! 

Then,  gentlemen,  as  if  to  emphasize  it  all,  and  to  con- 
vince the  most  skeptical  of  his  determined  and  deliberate 
purpose  at  all  hazard  to  murder  his  wife,  while  in  the 
possession  of  all  his  faculties,  he  moves  moderately  down 
stairs,  stops,  strikes  a  match,  lights  his  cigar,  walks  calm- 
ly along  the  street,  and  makes  his  escape. 

Most  men  under  the  excitement  of  shooting  under  such 
circumstances,  would  shoot  badly ;  but  Nicholson,  who  had 
planned  it,  prepared  himself  and  his  nerves  for  it;  with 
a  steadiness  born  only  of  premeditation  and  deliberate 
calmness,  aims  accurately,  and  pierces  the  heart  of  his  in- 
tended victim. 

Now  how  does  he  act  ?  Like  an  insane  man,  like  a 
drunken  man,  or  like  a  man  who  has  planned  and  com- 
mitted a  deliberate  murder. 

Within  twenty  minutes  the  whole  police  force  of  Bos- 
ton, over  eight  hundred  men,  is  searching  and  looking  for 
Nicholson.  An  accurate  description  is  sent  out,  and  soon 
all  the  officers  in  the  Commonwealth,  and  in  New  Eng- 
land, are  on  the  watch  for  him.  Notwithstanding  this, 
he  is  so  bright  and  capable,  and  his  plans  are  so  well  laid, 
that  he  is  enabled  to  elude  all  the  vigilance  and  skill  of 
the  best  officers  and  detectives,  and  make  his  escape  to 
Canada.  This  fact  alone  laughs  at  this  defence  of  in- 
sanity !  The  fact  that  he  could  commit  a  murder  at  noon- 
time and  secrete  himself,  or  escape  within  twenty-four 
hours  from  the  city  of  Boston,  eluding  the  great  vigilance 


OF  A  LONG  LIFE.  91 


and  thorough  search  of  the  police,  causes  us  to  smile  at 
this  defence  of  drunkenness. 

What  is  the  answer  of  the  prisoner  to  this  state  of  facts  ? 

1.  Pity  and  sympathy  for  him. 

2.  Abuse  of  the  government  witnesses. 

3.  Drunkenness. 

4.  Insanity. 

There  is  no  element  of  the  golden  rule  in  this  pathetic 
appeal  for  sympathy.  Did  Kicholson  show  mercy  to  her 
whom  he  had  promised  to  love  and  cherish,  and  whom  he 
was  under  every  obligation  of  manhood  and  honor  to  pro- 
tect and  defend? 

While  she  was  suffering  from  the  cruel  wound  of  a  bul- 
let in  the  body,  and  in  terrible  agony  from  the  burning  of 
her  arm,  and  her  dying,  pitiful  voice  uttered,  "He  has 
hilled  me  at  last"! —  did  he  show  pity  then?  On  the  con- 
trary, no  word  of  sympathy  and  no  act  of  tenderness  came 
from  him.  But  with  cold,  harsh  and  vindictive  words,  he 
exclaimed,  "If  I  have  not  killed  you,  I  will" ! 

As  her  body  falls  heavily  upon  the  floor,  and  as  her 
little  child  falls  also,  crying  with  fright  and  clinging  to 
the  body  of  the  dead  mother, — a  scene  which  would  seem 
to  melt  a  heart  of  stone, — did  he  manifest  sympathy  then  ? 
No.  Coldly  waiting  until  death  takes  his  victim,  he  ex- 
claims, with  the  satisfaction  of  malicious  hatred,  "I  am 
a  murderer,  and  I  meant  it" ! 

Do  tears  flow  from  his  eyes  as  he  leaves  for  the  last 
time  the  house  where  he  had  wooed  and  won  her  ?  I^o,  he 
takes  a  smoke,  in  satisfaction  at  the  accomplishment  of 
his  purpose. 

And  this  is  not  all,  gentlemen.  Six  weeks  afterwards, 
having  had  time  for  reflection  and  repentance,  upon  meet- 
ing that  faithful  officer.  Sergeant  Symonds,  in  Montreal, 
ISTicholson  greets  him  with,  "I  killed  her;  I  am  not  dead 


92  SOME  BECOLLECTIONS 

yet,  and  I  am  not  afraid  to  die".  Ko  regrets  then,  and 
no  sympathy  for  the  dead.  And,  gentlemen  although  that 
cruel  murder  was  committed  nearly  eight  months  ago  and 
you  have  the  declarations  of  the  prisoner,  at  the  time, 
immediately  after,  in  Montreal  in  June,  and  on  the  wit- 
ness stand,  yet  I  call  your  attention  to  the  fact  that,  dur- 
ing all  this  time,  his  lips  never  have  uttered  a  word  of 
sympathy  for  that  poor  wife,  of  regret  for  the  murder, 
nor  remorse  or  repentance  for  the  great  crime! 

Can  anything  be  more  conclusive  to  show  a  premed- 
itated purpose  and  plan,  the  deliberate  execution  of  the 
same,  and  entire  and  malicious  satisfaction  as  its  accom- 
plishment ? 

And,  Mr.  Foreman  and  Gentlemen  of  the  Jury,  with 
this  evidence  before  you,  counsel  in  his  behalf  pleads 
sympathetically  with  you,  to  save  such  a  cruel  father  and 
cold-blooded  murderer,  so  that  he  may  be  spared  to  bring 
up,  train  and  educate  his  motherless  child.  Well,  gentle- 
men, I  have  heard  the  story  of  a  young  man,  who 
murdered  his  father  and  mother  to  obtain  their  property, 
and  then  pleaded  for  mercy  and  leniency  upon  the  ground 
that  he  was  a  jpoor  orphan.  That  story  has  been  told  in 
jest.  Counsel  makes  his  appeal  apparently  in  all  serious- 
ness. 

I  desire  to  consider  briefly  the  witnesses  for  the  Com- 
monwealth. We  were  in  duty  bound  to  produce  every 
witnesss  who  was  present  when  the  murder  was  com- 
mitted. If  we  had  left  one,  you  would  have  heard  loud 
calls  for  such  absent  one. 

When,  under  such  circumstances,  we  call  witnesses,  we 
expect  you  to  hear  them,  and  credit  them  so  far  as  they 
appear  to  be  truthful  and  worthy  of  credit.  We  should 
not  be  inclined  to  give  every  witness  a  certificate  of  good 
moral  character.     We  do  not  select  the  persons  who  hap- 


OF  A  LONG  LIFE.  93 


pen  to  be  witnesses  to  crime.     If  we  did  we  should  select 
the  best.    The  first  witness  called  is  Edward  AUman,  upon 
whom   counsel  makes   a   severe   attack.      Why?   Because 
Allman  happens  to  be  an  important  witness  against  the 
prisoner.    Let  us  be  just  to  him  whom  they  called  "Uncle 
Allman".     Is  it  anything  against  an  honest  old  Irishman, 
who  is  poor  in  health  and  purse,  that  he  boards  at  a  lodg- 
ing house  on  Cross  street,  at  fifteen  cents  a  night,  instead 
of  at  Young's  or  Parker's  ?     Has  he  any  motive  to  tell  an 
untruth  ?    He  was  there,  and  saw  and  heard  what  he  says 
he  did ;  and,  in  fact,  is  corroborated  in  every  thing  he  says 
except  one.     After  Nicholson  committed  the  murder,  he 
said,  "I  am  a  murderer".    Allman  heard  it ;  so  did  George 
McLaughlin;  and  Allman  says  Nicholson  added,  "and  I 
meant  it".    He  is  the  only  witness  who  heard  that.    George 
has  forgotten  it,  or  never  heard  it.     That  often  happens. 
No  two  men  seeing  a  fight  in  the  street  will  describe  it 
precisely  alike.    But  you  know  that  Nicholson  was  a  mur- 
derer, and  you  also  know  perfectly  well  that  he  intended 
and  meant  to  murder,  and  whether  or  not  he  added,  "I 
meant  it",  you  may  think  of  little  consequence.     I  think, 
however,  you  will  give  full  credit  to  the  testimony  of  Ed- 
ward Allman,  whose  honest  face,  clear  and  disinterested 
manner  will  convince  you  of  his  accuracy  and  truthfulness. 

George  McLaughlin,  the  brother  of  Mrs.  Nicholson, 
has  also  been  handled  very  roughly  by  the  other  side. 

George  was  corroborated  by  the  other  witnesses.  But 
he  was  not  a  willing  nor  a  swift  witness  for  the  Common- 
wealth. On  the  contrary,  he  was  disposed  to  help  the 
prisoner  all  he  could.  He  had  been  appealed  to  by  the 
father  of  Nicholson  not  to  "go  hard"  against  the  prisoner, 
and  he  has  been  constantly  treated  to  liquor  by  the  friends 
of  the  prisoner,  at  the  North  End,  since  his  arrest ;  and  I 
agree  with  counsel,  that  he  had  been  drinking  intoxicating 


94  SOME  EECOL1.ECTIONS 

liquor  prior  to  coming  on  to  the  witness  stand.  I  would 
not  give  George  McLaughlin  a  certificate  of  good  charac- 
ter ;  yet  he  is  obliged  against  his  will,  to  tell  what  he 
knows  about  the  case.  He  does  it  reluctantly,  but  he  tells 
it,  and  he  is  corroborated. 

We  come  to  the  one  bright  spot  in  this  case,  the  testi- 
mony of  little,  sweet-faced,  innocent  Annie  Quigley,  the 
girl  of  seventeen.  Notwithstanding  her  humble  birth, 
her  poverty,  and  her  unfavorable  surroundings  for  a  life 
of  chastity,  yet  she  comes  into  this  court  with  the  inno- 
cence of  childhood,  with  a  sweet,  intelligent  countenance, 
and  she  carries  conviction  that  every  word  she  utters  is  the 
absolute  truth.  What  has  saved  that  girl,  gentlemen, 
whom  you  believe  to  be  as  pure  as  the  driven  snow?  Jus- 
tice to  whom  justice  is  due.  Say  what  you  may,  I  believe 
the  church  is  entitled  to  great  credit  in  that  regard.  And 
after  Annie  has  told  you  the  story  of  that  terrible  day, — 
a  scene  which  was  photographed  upon  her  memory,  and 
its  imprint  will  remain  there  forever, —  you  are  satisfied ; 
you  are  convinced.  You  no  longer  have  a  reasonahle 
doubt.  She  was  frightened  and  ran  away,  and  did  not 
hear  and  see  everything;  but  she  heard  enough, — enough 
to  satisfy  and  convince  the  most  doubting. 

But  you  have,  although  you  do  not  need  him,  that 
bright  boy,  Conway.  You  believe  him;  he  gives  the  time 
between  the  shots.  On  hearing  the  first  he  ran  down  stairs, 
gave  the  alarm,  hurried  a  few  feet  to  Salem  street,  when 
he  heard  the  second  shot, — about  a  minute  and  a  half  be- 
tween them, —  and  while  Conway  was  looking  for  a  police- 
man, he  saw  the  prisoner  calmly  walk  away,  smoking  his 
cigar. 

But  why  do  I  dwell  upon  this  evidence?  There  is  no 
dispute  about  or  contradiction  of  it.     The  prisoner,  who 


OF  A  LONG  LIFE.  95 


has  been  a  witness,  does  not  deny  it.     It  stands  undis- 
puted, and  is,  in  fact,  admitted. 

The  government  has  then  proven,  beyond  a  reasonable 
doubt,  that  the  prisoner,  with  deliberately  premeditated 
malice  aforethought,  murdered  Ellen  Nicholson. 

What  is  the  defence  ?    Insanitv  :  drunkenness ! 

Although  there  is  evidence  that  the  prisoner  had  been 
drinking  for  three  months  prior  to  April  22,  and  exces- 
sively for  several  days  before  the  homicide,  yet  I  say,  and 
call  upon  you  to  listen  while  I  review  the  evidence,  that 
he  was  not  intoxicated  on  that  day.  On  the  contrary,  the 
evidence  conclusively  shows  that  he  was  sober.  Drunken- 
ness, as  has  been  said,  does  not  excuse  crime.  Where  intent 
is  essential  to  crime,  and  the  crime  cannot  be  committed 
without  proof  of  such  intent,  like  assaults  with  intent  to 
rob  or  murder,  the  question  of  drunkenness  may  have  an 
important  bearing  on  the  issue. 

So,  in  determining  the  degrees  of  murder,  under  our 
statute,  the  question  of  the  intoxication  of  the  murderer 
at  the  time, — the  condition  of  his  mind  and  will, — may 
be  significant  and  decisive. 

There  is  a  vast  difference,  however,  between  a  man 
who  takes  a  single  glass  of  liquor  and  one  who  is  beastly 
intoxicated.  A  great  many  men  in  the  Commonwealth, 
perhaps  one-third  of  our  people,  use  intoxicating  liquors 
moderately;  some  drink  several  times  in  the  course  of  the 
day,  but  seldom,  if  ever,  become  intoxicated.  Others  be- 
come beastly  intoxicated,  staggering  drunk,  so  that  they 
can  neither  walk  nor  talk  straight.  Although  there  is  evi- 
dence that  he  was  under  the  influence  of  intoxicants  on 
Friday,  Saturday  and  Sunday,  and  perhaps  on  Monday, 
yet  on  Tuesday,  the  day  of  the  murder  he  was  sober.  Up 
to  the  hour  of  the  murder  he  had  taken  four  drinks  only. 
Two  whisky  cocktails  and  two  glasses  of  beer.     The  cock- 


96  SOME  EECOLLECTIONS 

tails  and  one  glass  of  beer  had  been  taken  in  the  forenoon, 
the  other  glass  of  beer  was  furnished  at  the  house  by 
George  McLaughlin.  You  know  something  of  the  effect 
of  liquor  upon  men  by  observation.  A  man  in  the  habit 
of  using  liquor  every  day,  like  the  prisoner,  will  be 
steadied  by  a  few  glasses,  while  the  man  unaccustomed 
to  its  use  may  be  somewhat  disturbed  by  the  same  or  a 
smaller  quantity.  Common  observation  detects  drunken- 
ness at  a  glance.  We  all  know  when  a  man  is  guilty  of  the 
crime  of  drunkenness.  Evidence  of  it  is  constantly  pro- 
duced in  courts  of  justice,  and  police  officers  testify  that 
the  man  exhibited  it  by  staggering,  or  by  talking  wildly 
and  incoherently,  or  by  screaming,  or  by  lying  in  the  gut- 
ter unable  to  move  or  talk,  or  by  being  in  the  condition 
of  a  crazy  man, — "crazy  drunk",  as  it  is  called.  Now, 
then,  there  is  no  evidence  that  iNTicholson  was  intoxicated 
on  that  day;  but,  on  the  contrary,  all  the  evidence,  his 
appearance,  looks  and  acts,  show  him  to  be  sober  and  in 
the  full  possession  of  all  his  senses  and  faculties.  He  went 
to  his  work  as  usual,  as  foreman  of  the  shop,  and  worked 
steadily  until  towards  noon.  One  man  from  that  shop  has 
been  t3alled  as  a  witness  in  the  prisoner's  behalf ;  he  does 
not  say  that  Nicholson  was  intoxicated.  If  he  had  been, 
every  man  in  the  shop  would  have  been  here  and  so  testi- 
fied. The  man  who  sold  him  the  liquor  that  forenoon  was 
a  witness  for  the  prisoner,  and  he  does  not  pretend  that 
Nicholson  was  drunk.  Everybody  who  saw  him  before, 
at  the  time,  and  after  the  murder,  describe  him  as  sober 
and  calm.  But,  gentlemen,  the  fact  that  he  was  able  to 
escape,  when  eight  hundred  policemen  were  immediately 
after  him  shows  him  in  the  possession  of  all  his  faculties. 
A  drunken  man  would  have  staggered  into  the  hands  of  the 
police.  Nicholson  is  not  without  friends,  who  have  shown 
a  willingness  to  help  him  when  they  could  by  their  evi- 


OF  A  LONG  LIFE.  97 


dence.  Many  of  them  must  have  seen  him  that  day ;  they 
raised  $100  to  enable  him  to  escape,  but  not  one  comes  to 
swear  that  he  was  intoxicated. 

This  defence  failing,  we  come  to  consider  the  defence 
of  insanity.  That  is  now  the  defence  in  all  cases  where 
the  crime  is  clearly  proven  and  all  other  defences  fail; 
insanity;  transitory  mania;  transitory  frenzy;  delirium 
tremens;  mania-a-potu,  and  rum  insanity.  The  physicians 
who  think  and  write  on  this  subject  are  apt  to  become  par- 
tially insane  themselves.  Fortunately,  this  kind  and 
claim  of  insanity  has  been  defined,  and  they  say  it  is 
delirium  tremens.  We  know,  gentlemen,  the  common 
man  knows,  something  of  delirium  tremens.  If  you  have 
ever  seen  a  man  suffering  from  that  disease,  you  will 
never  forget  it.  If  this  man  had  delirium  tremens  for  a 
week,  from  the  Friday  before  to  the  Friday  after  the  hom- 
icide, then  I  admit,  gentlemen,  your  verdict  should  be  not 
guilty  by  reason  of  insanity.  But,  gentlemen,  I  deny  that 
he  had  any  such  disease;  it  is  all  a  sham  and  pretence. 
Nobody  saw  him  have  delirium  tremens.  The  persons 
who  saw  him  on  five  or  six  occasions  intoxicated,  do  not 
even  claim  he  was  suffering  from  that  disease.  The  men 
who  sold  him  liquor  are  acquainted  with  the  signs  of 
delirium  tremens,  but  not  a  witness  swears  he  had  them. 
Think,  gentlemen,  of  a  man  as  foreman  of  a  shop,  direct- 
ing its  business,  and  not  a  person  therein  even  dreaming 
that  he  was  working  under  an  insane  man!  The  law  pre- 
sumes every  man  sane.  He  talks  and  acts  like  a  sane  man ; 
and,  after  committing  the  murder,  he  escapes  like  a  sane 
man.  But  my  friend  (Mr.  Allen)  says,  the  physicians 
find  him  to  be  insane — suffering  from  delirium  tremens. 
The  experts  on  insanity,  the  doctors,  find  no  such  thing. 
They  were  asked  hypothetical  questions.  They  were 
asked,  if  Nicholson  imagined  certain  things  which  were 


98^  SOME  RECOLLECTIONS 

not  real,  and  did  not  exist,  on  occasions  when  he  was 
drunk,  if  that  would  not  be  evidence  that  he  had  halluci- 
nations. Of  course  they  answered  "yes".  I  asked  if  those 
acts  were  equally  consistent  with  drunkenness,  and  they 
answered  "yes".  But  there  is  no  evidence  that  the  things 
he  puts  into  the  question  were  imaginary.  On  the  con- 
trary, some  of  them  are  imaginary,  and  only  exist  in  the 
mind  of  Mr.  Allen,  as  I  can  show  you.  The  first  act  to 
prove  delirium  tremens,  is  from  the  evidence  of  the  fire- 
man, John  I.  Quigley;  and  my  brother  Allen  founded  an 
argument  to  you  upon  the  ground  that  the  woman  who 
claimed  to  be  a  mind  reader,  was  an  imaginary  being, 
having  in  fact  no  existence.  It  is  fortunate  that  we  have 
a  full  report  of  this  evidence,  for  I  propose  to  prove  to 
you  from  it  that  the  "mind  reader",  so  called,  did  exist; 
that  a  woman  who  made  professions  in  that  direction  act- 
ually existed,  and  was  out  attending  church  when  the 
prisoner  and  Mr.  Quigley  called.  I  read  from  the  testi- 
mony of  Quigley,  on  page  21 : — 

Quigley.  "Says  I  (to  l^icholson)  'Come  along;  what's 
the  use  of  hangin'  round  like  this  ? '  says  he,  'I  will  tell 
you  what  I  will  do.  Come  with  me  and  see  a  mind  reader, 
and  I  will  go  home  with  you'.  Says  I,  'All  right',  and  I 
coaxed  him  to  come  home.  I  started  then,  with  a  friend 
of  mine,  with  Mr.  N'icholson,  where  he  said  he  was  going, 
to  see  the  mind  reader.  I  didn't  care  where  it  was,  as  long 
as  I  got  him  away,  so  he  would  be  all  right,  and  get  him 
towards  home.  He  got  down  to  Mrs.  Grimes'  house  on 
Salem  street,  a  little  below  Parmenter,  and  this  friend  of 
mine  and  Mr.  iN^icholson  and  myself  went  in  there,  in  the 
front  room ;  and  when  he  got  in  the  front  room  there,  he 
asked  some  strange  lady,  I  don't  think  he  was  very  well 
acquainted  with  her  at  the  time,  where  a  certain  woman 
was, — a  certain  mind  reader, — and  called  her  by  name. 


OF  A  LONG  LIFE.  99 


She  says,  ^She  has  gone  out  to  church'.    That  was  all  there 
was  to  it". 

So  you  see,  gentlemen,  my  brother  Allen  imagines 
something,  and  bases  an  argument  upon  a  state  of  facts 
which  does  not  exist. 

Take  the  next  case,  where,  while  ^Nicholson  was  par- 
tially intoxicated,  he  fires  his  pistol,  pointing  to  the  floor 
in  the  saloon ;  also,  on  another  occasion,  he  fires  in  the  air. 
Counsel  assumes  that,  in  each  case,  he  was  firing  at  some 
imaginary  object,  like  rats  or  bats.  On  the  contrary, 
there  is  no  evidence  of  that;  but  the  witness,  Mr.  Wills, 
who  describes  it,  says  he  thought  nothing  strange  of  it, — 
he  considered  it  only  as  a  freak  of  a  drunken  man.  There 
is  also  evidence  from  Quigley,  that  Nicholson,  on  the  same 
evening  when  they  were  in  search  of  the  mind  reader, 
went  upstairs  and  discharged  his  revolver;  that  when 
called  to  an  account  for  it,  he  excused  himself  and  said  he 
was  firing  at  a  cat.  That  story  may  have  been  true. 
Nicholson  was  partially  intoxicated,  and  would  it  be  sur- 
prising that  under  such  circumstances  he  gave  a  false  ex- 
cuse? 

Then  we  have  the  astonishing  circumstance  of  a  man 
going  to  bed  badly  intoxicated,  and  in  the  morning  he 
thinks  he  heard  noises  in  the  next  room,  as  if  people  were 
there,  when  in  fact  they  were  not.  What  a  remarkable 
circumstance,  that  a  drunken  man  hears  or  sees  double! 

Then  there  is  the  testimony  of  the  prisoner  on  this  sub- 
ject of  insanity!  Formerly,  a  party  who  had  any  interest 
in  a  civil  case,  even,  could  not  be  allowed  to  give  evidence 
in  a  court  of  justice.  Later,  however,  the  legislature  re- 
laxed the  rule,  and  now  allows  all  parties  to  testify,  even  a 
prisoner  in  a  capital  case;  but,  at  the  same  time,  a  jury 
is  to  remember  the  great  inducement  and  the  strong  motive 
he  has  to  swear  falsely.    It  is  well  illustrated  in  this  case. 


100  SOME  EECOLLECTIONS 

Think  of  it,  gentlemen.  The  prisoner  swears  that  he  did 
not  abscond  from  the  Commonwealth;  that  he  does  not 
know  why  he  went  away;  that  upon  arriving  at  Lowell 
and  seeing  his  name  published  in  the  newspaper  as  a  mur- 
derer, he  did  not  examine  the  article  nor  read  it ;  that  he 
had  no  curiosity  to  see  what  was  said  about  him  or  the 
murder;  that  at  White  River  Junction,  where  he  stopped 
at  the  hotel  over  night,  he  does  not  know  under  what  name 
he  registered,  or  whether  or  not  he  gave  a  false  name; 
that  he  does  not  know  why  he  gave  the  name  of  Murphy 
in  Montreal,  instead  of  Nicholson;  and  that  he  does  not 
know  why  he  was  remaining  in  Montreal  when  arrested. 
I  am  not  going  to  call  hard  names,  nor  say  an  unkind 
thing  concerning  this  evidence  of  the  prisoner.  But  you 
know  it  is  not  true,  and  cannot  possibly  be  true ;  and  that 
the  prisoner  knows  it  is  not  true. 

And  then  he  gives  you  the  star-in-the-forehead,  imagi- 
nary-men-on-the-ground-in-the-woods  story ! 

One  is  as  reasonable  and  probable  as  the  other.  Does 
he  give  you  credit  for  intelligence,  when  he  gives  you  such 
stuff?  And  still,  in  order  to  give  this  insanity  theory  a 
moment's  respectful  reflection,  and  to  have  anything  to 
base  the  physicians'  evidence  upon,  you  must  believe  his 
testimony. 

When  you  find  that  he  ran  away  from  this  state,  after 
committing  the  murder;  that  he  exhibited  great  ability 
and  remarkable  adroitness  in  making  that  escape ;  that  he 
absconded  to  escape  the  consequences  of  the  murder;  that 
he  gave  false  names  and  practised  deception  with  the  same 
end  in  view;  then  you  have  determined  that  there  is  too 
much  method  in  his  madness,  and  that  you  cannot  and  do 
not,  on  your  consciences  and  upon  your  oaths,  believe  him. 
Then  all  this  testimony,  like  a  rope  of  sand,  falls,  and  the 
evidence  of  the  physicians,  based  upon  it,  falls  with  it. 


OF  A  LONG  LIFE.  101 


1^0,  gentlemen,  in  all  seriousness  I  say  again,  there  is 
no  foundation  for  the  defence  of  drunkenness,  and  the 
plea  of  rum  and  insanity  has  no  right  or  place  in  this  case. 
It  has  been  forced  and  imported  into  it,  and  because  of  the 
importance  of  the  cause  you  will  give  it  fair  consideration. 
When  this  has  been  done,  your  full  duty  towards  it  is  per- 
formed, and  you  will  then  dismiss  it  from  your  minds. 

There  is  one  other  matter  to  which  I  desire  to  direct 
your  attention,  which  I  regard  as  important  on  the  ques- 
tion of  motive,  malice,  premeditation  and  determination, 
as  well  as  showing  the  prisoner's  cunning,  adroitness,  abil- 
ity and  firmness  of  purpose;  and  that  is,  his  conduct  on 
the  witness  stand.  He  was  compelled  to  admit  that  he  re- 
ceived, while  in  Montreal,  from  friends  here,  one  hundred 
dollars.  I  asked  him  from  whom  he  received  it.  He  de- 
clined to  answer.  After  coaxing  him  for  some  time,  he 
still  refusing,  the  court  informed  him  that  it  was  a  proper 
question,  it  was  his  duty  to,  and  he  must  answer  it. 
Although  upon  trial  for  his  life,  he  calmly  and  with  stub- 
born dignity  defied  the  authority  of  the  court  and  power 
of  the  law,  and  absolutely  refused  to  answer.  Does  that 
not  show  the  character  of  the  man,  who,  when  he  had  deter- 
mined to  murder  his  wife,  would  carry  it  out;  and  does 
not  this  exhibition  on  the  witness  stand  confirm  all  the 
evidence  of  the  murder;  that  on  account  of  a  quarrel,  in 
January,  between  himself  and  wife,  the  cause  and  extent 
of  which  he  does  not  disclose,  they  separated;  that  the 
quarrel  increased  in  violence  and  fury,  until  he  decided  to 
murder  her ;  that,  after  taking  some  days  to  bring  his 
courage  and  nerves  to  the  proper  condition,  on  the  twenty- 
second  day  of  April,  with  the  same  coolness  and  self- 
possession  he  manifested  in  defying  the  power  of  the 
court,  he  carries  out  his  purpose,  fully  executes  his  prev- 
ious plan,  and  makes  his  escape? 


102  SOME  KECOLLECTIONS 

Why  did  he  refuse  to  answer  ?  I  told  him  I  wanted  the 
question  answered  in  order  to  test  his  truthfulness.  He 
knew  perfectly  well  the  moment  he  answered  that  ques- 
tion we  should  know  who  the  people  of  the  I^orth  End 
were  who  harbored  him  immediately  after  the  murder, 
and  that  thereby  we  should  be  enabled  to  trace  him  every 
step  from  the  murder  to  Montreal,  and  explode  that  star- 
in-the-forehead  and  wandering-in-the-woods  story.  This 
was  the  only  reason  he  refused  to  answer,  and  not  for  the 
false  one  given. 

You  are  told,  gentlemen,  that  we  have  shown  no  motive 
for  this  crime.  If  by  that  is  meant  that  we  have  shown  no 
adequate  motive  for  the  great  crime  of  wilful  murder,  I 
admit  it.  It  is  impossible  to  have  or  find  an  adequate 
motive  for  crime,  and  especially  for  a  crime  of  this  mag- 
nitude. If,  on  the  other  hand,  it  is  claimed  that  we  have 
shown  no  ill  feeling,  hatred  nor  quarrel,  between  Nichol- 
son and  his  wife,  then  I  deny  it,  and  appeal  to  your  recol- 
lection of  the  evidence,  as  I  have  before  called  your 
attention  to  it.  But,  gentlemen,  there  is  no  requirement 
or  burden  on  the  government  to  prove  or  show  motive  in 
this  or  any  criminal  case,  and  the  court  will  so  instruct 
you.  Evidence  of  motive  to  commit  crime  is  important 
when  there  is  serious  doubt  whether  the  accused  is  the 
person  who  committed  it.*  But  when  there  is  no  doubt  or 
question  of  the  identity  of  the  person  charged  with  the 
commission  of  the  crime,  as  in  this  case,  then  the  question 
of  motive,  or  the  extent  of  it,  becomes  unimportant. 

There  are  many  things  I  might  say,  if  I  attempted  to 
follow  the  counsel  for  the  prisoner  in  his  argument  of 
three  hours  and  a  half;  but  I  shall  not.  I  think  some- 
times it  should  be  assumed  that  jurors  have  eyes  and  ears ; 
that  it  should  be  presumed  that  they  know  some  things; 
that  it  should  be  taken  for  granted  that  you  desire  to  serve 


OF  A  LONG  LIFE.  103 


your  country  faithfully  and  that  your  honest  purpose  is  to 
arrive  at  a  just  result,  a  true  verdict. 

You  have  been  reminded  many  times  of  the  conse- 
quences of  your  verdict,  if  it  shall  be  what  counsel  fears 
it  may  be.  He  has  led  you  along  with  that  silent  proces- 
sion in  the  corridors  of  the  prison  many  times. 

Gentlemen,  in  this  great  trial,  the  judges  on  the  bench, 
the  jury  in  the  box,  the  counsel  for  the  defence  or  for  the 
government,  have  nothing  to  do  with  consequences.  We 
are  one  and  all  to  keep  sacred  our  oaths,  and  discharge  and 
perform  our  duty  fearlessly,  faithfully,  honestly. 

You  are  simply  to  declare  the  truth  as  found  by  you; 
to  decide  an  issue.  You  are  to  determine  a  pure  and 
simple  question  of  fact;  and  you  will  do  it  and  let  conse- 
quences take  care  of  themselves.  You  are  not  the  pardon- 
ing power;  that  is  invested,  under  the  Constitution,  in 
another  department  of  government.  You  are  standing  on 
the  high  plane  of  responsibility  between  the  public  and  the 
prisoner.  All  eyes  are  turned  towards  you.  You  have 
been  selected  in  the  solemn  mode  provided  by  law  for 
capital  trials. 

You  have  sworn  that  you  have  no  such  prejudice  against 
capital  punishment  as  would  prevent  you  from  returning 
a  verdict  of  guilty  in  the  first  degree,  if  clearly  proven. 

If,  while  you  are  considering  the  evidence,  tears  of 
sympathy  for  the  prisoner  blind  your  eyes  and  you  hesi- 
tate on  the  threshold  of  duty,  listen  to  the  small  voice  of 
that  secret  monitor  within,  as  you  hear  the  admonition, 
"Remember  your  oath",  and  life  will  be  made  more  safe 
and  better  protected,  courts  of  justice  will  be  more  re- 
spected, law  will  be  vindicated;  and,  what  is  better  still, 
you  will  have  rendered  a  correct  and  true  verdict  and 
satisfied  your  own  consciences,  and  thereby  will  be  entitled 
to  receive — shaving  faithfully  and  honestly  performed  the 


104:  SOME  EECOLLECTIOlSrS 

highest  and  most  sacred  public  duty  of  a  lifetime — the 
plaudit,  "Well  done,  good  and  faithful  servants" ! 


[Afterwards  Judge  Devens  charged  the  jury.  The  next 
day  they  returned  a  verdict  of  guilty  of  murder  in  the  first 
degree.  December  20th,  the  prisoner  was  sentenced  to  be 
executed,  March  27,  1885.] 

On  the  first  ballot  the  jury  voted  11  to  1  for  the  con- 
viction of  murder  in  the  first  degree.  Finally  they  voted 
unanimously  for  that  verdict.  When  it  was  rendered  in 
court,  Mr.  Allen  fainted. 

Subsequently  an  application  was  made  to  the  governor 
and  council  to  commute  the  sentence  to  imprisonment  for 
life  in  the  state  prison,  which  they  finally  did.  After- 
wards, when  the  child  who  fell  from  her  mother's  lap,  at 
the  time  of  the  murder,  became  a  grown  woman  of  twenty 
odd  years  of  age,  an  application  was  made  by  her  to  the 
governor  and  council  for  the  pardon  of  James  l^icholson, 
her  father,  and  the  same  was  granted  December  22,  1904, 
and  father  and  daughter  are  now  living  in  the  state  of 
Maine. 


CHAPTER   VII. 


ATTOKNEY  GENERALSHIP,— Coniinwe^. 


Case  of  Heney  K.  GooDwiisr. 

The  following  trial  commenced  December  28,  1885, 
and  was  concluded  January  5,  1886.  The  trial  attracted 
considerable  interest  as  General  Butler  appeared  for  the 
prisoner.  It  was  the  last  criminal  case  which  the  general 
ever  tried.     The  defence  was  insanity. 

Commonwealth  of  Massachusetts. 

Essex,  ss.  Supreme  Judicial  Court. 

Commonwealth  vs.  Henry  K.  Goodwin, 

Charged  by  Indictment  with  the  Wilful  Murder  of  Albert 

D.  Swan. 

Eighth  Day  of  the  trial  before  Charles  Allen  and  William 

S.  Gardner,  Justices. 

Edgar  J.  Sherman,  Attorney  General,  Henry  F.  Hurl- 
burt,  District  Attorney,  for  the  government. 

Benjamin  F.  Butler,  John  P.  Sweeney,  for  the  prisoner. 

EXTEACT    FEOM    THE    AeGUMENT    OF    THE    AtTOENEY 

Geneeal 
In  behalf  of  the  government. 


106  SOME  EECOLLECTIOlSrS 

Closing  Argument  by  the  Attorney  General. 

May  it  'please  Your  Honors,  and  you,  Mr.  Foreman,  and 
gentlemen  of  the  jury: 

On  the  twenty-seventh  day  of  August  last,  Albert  D. 
Swan,  who  had  lived  in  Lawrence  from  infancy,  a  man 
whom  the  defence  admit  was  the  soul  of  honor,  while 
engaged  in  his  own  office,  attending  to  his  own  business, 
without  the  opportunity  to  give  to  his  wife  the  kiss  of 
good-bye  or  a  parting  blessing  to  his  little  boy,  was  assassi- 
nated ! 

When  a  man  was  found  with  courage  enough  to  break 
the  terrible  news  to  his  wife,  which  crushed  her  to  the 
earth,  where  do  we  find  the  prisoner  ?  We  find  him  sane 
enough  to  know  where  a  man  who  commits  such  a  crime 
belongs ;  sane  enough  to  know  the  consequences,  and  to  be 
responsible  for  his  acts.  We  find  him  going  towards  the 
police  station,  giving  the  deadly  weapons  to  his  uncle,  and 
saying  to  his  cousin,  "I  have  killed  the  son  of  a  bitch". 
W^e  find  him  surrendering  himself  to  the  police  and  telling 
the  officers  of  the  law  that  Swan  had  wronged  him,  cheated 
him ;  that  he  had  made  up  his  mind  a  year  ago  and  told 
Swan  so,  that  he  would  have  his  heart's  blood,  unless  a 
settlement  was  made ;  that  he  had  now  satisfied  his  revenge, 
carried  out  his  threat,  that  he  was  satisfied  and  prepared 
to  take  the  consequence.  Did  he  not  then  know,  gentlemen, 
and  had  he  not  intelligence  enough  to  know  the  consequence 
of  his  crime  ?    There  was  no  thought  of  insanity  then. 

It  is  well  to  look  at  the  prisoner  and  his  case  then,  be- 
fore counsel  had  been  called  into  the  case  at  all.  It  was 
as  well  known  in  Lawrence  then,  that  the  prisoner  and 
Swan  were  enemies,  as  it  is  that  General  Butler  and  I  are 
friends.  It  went  on,  so  swears  the  uncle,  for  two  or  three 
weeks,   and  everybody  believed  that  the  prisoner  killed 


OF  A  LONG  LIFE.  107 


Swan  because  they  were  enemies  and  because  Swan  had 
wronged  and  cheated  him,  and  the  only  suggestion  on  be- 
half of  the  prisoner's  friends  was  that  the  great  provocation 
should  in  some  measure  mitigate  the  crime.  There  was  no 
talk  or  thought  of  insanity  then.  There  was  no  attempt 
then  to  show  that  these  men  were  friends  and  that  it  was 
a  delusion  on  the  part  of  the  prisoner  to  suppose  that  Swan 
was  his  enemy  and  had  wronged  him.  This  plain  man, 
the  uncle  Joseph  Stowell,  who  was  not  suffering  under  a 
delusion,  this  man,  with  a  level  head  and  hard  sense,  for 
three  weeks  swears  he  believed  as  did  the  prisoner,  that 
Swan  had  wronged  and  cheated  him,  and  that  Goodwin 
killed  him  to  satisfy  his  revenge. 

But  all  is  changed.  Desperate  cases  require  desperate 
remedies.  How  could  the  prisoner  be  saved  from  the  con- 
sequences of  his  great  crime?  A  cold-blooded  murder 
had  been  committed  in  broad  daylight,  in  the  quiet  manu- 
facturing city  of  Lawrence ;  what  can  be  done ;  up  to  that 
time  no  excuse  had  been  offered.  For  three  weeks  no  man 
suggests  delusion,  or  insanity. 

The  great  criminal  lawyer,  the  man  believed  to  have 
defended  more  criminals  than  any  other  lawyer  in  the 
world,  a  man  of  great  ability  as  a  lawyer  and  an  actor, 
who  understands  the  drama  of  the  court  room,  how  to 
place  the  footlights  and  the  scenery,  how  to  appeal  to  the 
sympathy  and  the  prejudice  of  a  jury,  a  man  who  knows 
how,  while  arguing  a  question  of  law  to  the  Court  to  have 
an  eye  on  the  jury ;  a  man  with  such  great  ability,  that  if 
he  should  attack  the  good  old  Commonwealth  of  Massachu- 
setts he  would  make  her  appear  as  the  meanest  state  of  the 
Union,  if  he  should  attack  one  of  her  public  and 
charitable  institutions  he  would  make  it  appear  worse  than 
Andersonville ;  a  man  believed  to  possess  the  power  to 
make  a  jury  believe  that  white  is  black  and  black  white; 


108  SOME  EECOLLECTIOXS 

General  Butler  was  sought  and  retained  to  defend  the 
case.  And  for  the  first  time  we  hear  these  magic  words 
delusion,  insanity!  Then  comes  this  now  too  common 
defence  of  insanity.  This  defence  which  is  invoked  when 
there  is  no  other.  This  Xew  York  invention,  this  momen- 
tary insanity,  this  transitory  frenzy,  emotional  insanity, 
this  presto  change,  now  you  see  it  and  now  you  don't 
insanity ;  this  kind  of  insanity  which  exists  during  the  act 
of  killing,  never  existed  before,  and  is  never  expected  to 
appear  again!  I  confess,  gentlemen,  I  have  no  respect 
for  or  sympathy  with  such  claim  of  insanity  as  an  excuse 
for  crime. 

As  soon  as  the  trial  commences  there  is  an  attempt  to 
prejudice  you  against  the  Commonwealth  and  its  officers. 
For  the  first  two  or  three  days  it  must  have  appeared 
doubtful  to  you  whether  the  prisoner  or  the  Attorney  Gen- 
eral was  on  trial.  It  would  have  been  supposed  that  my 
duties  were  hard  enough,  without  an  attempt  to  put  me 
in  the  dock.  What  would  you  have  thought  of  me,  gentle- 
men, living  as  I  do  in  the  city  where  this  terrible  crime 
was  committed,  if  I  had  not  thoroughly  prepared  and  tried 
this  case. 

The  first  attack  upon  me  was  because  I  tried  to  get  up- 
on the  jury  such  men  as  the  law  requires,  "persons  of  good 
moral  character,  of  sound  judgment,  and  free  from  legal 
exceptions",  and  men  with  brains.  I  said  to  the  Court  in 
your  hearing  that,  if  it  was  claimed  or  suggested  than  any 
agent  of  the  Commonwealth  had  done  or  said  an  improper 
thing,  I  courted  the  most  thorough  investigation.  But  no, 
there  is  no  charge  of  that  kind.  General  Butler  did  me  the 
honor  to  pay  me  a  compliment ;  to  say,  he  believed  I  would 
act  according  to  my  conscientious  convictions  of  duty.  I 
thank  him.     Every  act  of  the  criminal  lawyer,  the  actor, 


OF   A  LONG  LIFE.  109 


is  brought  into  full  play.  You  have  seen  enough  during 
this  trial,  to  know  that  this  great  audience  is  not  over- 
crowding this  court  house,  is  not  here  simply  to  hear  the 
Goodwin  case.  It  is  here  to  see  General  Butler,  the  great 
criminal  lawyer,  and  actor  as  well,  to  see  what  wonderful 
power  and  control  he  has  over  men.  Sympathy,  gentle- 
men, is  more  potent  with  ordinary  men  than  reason,  and 
hence  everything  is  done  here  that  can  be,  to  enlist  your 
sympathy.  It  has  been  so  arranged,  accidently  or  de- 
signedly, you  are  to  judge  which,  that  you  could  not  "look 
upon  the  prisoner",  without  first  observing  the  anxiou3 
care-worn  countenance  of  his  wife,  that  you  could  not  go 
out  of  or  come  into  the  court  house  without  beholding  her 
anxious  and  pleading  face.  I  am  not  going  to  complain  of 
it,  gentlemen.  I  am  sorry  for  her,  I  pity  her.  She  and 
the  Stowells,  the  uncles,  shed  tears  upon  the  witness  stand 
and  their  tears  have  flowed  profusely  since  while  in 
court.  I  cannot  explain.  Undoubtedly  they  feel  all 
they  appear  to;  but,  gentlemen,  you  cannot  reason  well 
with  your  eyes  filled  with  tears;  and  there  has  been  an 
attempt  to  keep  them  full  all  the  time. 

Prejudice  comes  next  to  sympathy;  it  also  is  more 
powerful  than  reason,  or  rather  reason  cannot  assert  itself 
where  prejudice  is  enthroned.  Your  minds  are  to  be  kept 
full  of  prejudice.  The  sheriff  and  his  officers  are  attacked, 
they  with  the  Attorney  General  are  wrongfully  conspiring 
against  the  life  of  this  "poor  prisoner" !  Why  ?  Because 
it  is  alleged  that  these  officers  reported  certain  statements 
of  the  prisoner  to  me.  Then  comes  another  complaint.  I 
committed,  as  General  Butler  would  have  you  believe,  the 
unpardonable  sin,  by  asking  three  physicians,  experts  on 
insanity,  to  visit  the  prisoner  and  ascertain  his  mental 
condition,  whether  he  was  an  insane  man  or  not.  Gentle- 
men, I  had  a  perfect  right  to  prove  anything  the  prisoner 


110  SOME  EECOLLECTIONS 

ever  said,  for  a  year  prior  to  the  homicide,  to  the  close  of 
the  evidence,  not  only  as  bearing  upon  the  question  of  his 
sanity,  but  declarations  of  a  prisoner  are  always  compe- 
tent evidence  to  be  used  against  him.  I  would  have  had 
that  right,  but  I  call  it  to  your  attention,  that  I  have  not 
exercised  it.  If  I  had  allowed  this  defence  of  insanitv 
to  be  used  for  the  purpose  of  misleading  you,  with  the  in- 
tent on  the  part  of  the  defence  to  induce  you  to  render  a 
false  verdict,  and  had  not  called  competent  professional 
gentlemen,  who  had  made  the  subject  a  life  study,  with 
great  practical  experience  in  treating  the  insane,  would 
you  not  say  I  had  failed  to  discharge  the  high  trust  con- 
ferred upon  me  by  the  people  of  the  Commonwealth.  You 
must  be  fully  satisfied  of  the  purpose  and  intent  of  these 
numerous  attacks  upon  me;  that  they  are  suggested  and 
made  in  order  to  create  a  suspicion,  a  prejudice  in  your 
minds,  so  that  you  will  not  listen  to  the  argument  which 
I  address  to  your  intelligence,  conscience  and  reason.  Fi- 
nally, when  General  Butler  had  his  say  on  these  matters, 
when  he  had  made  all  the  insinuations  against  me  he  de- 
sired to  make  for  your  benefit,  although  entirely  friendly 
to  me  all  the  time,  I  concluded  that  it  was  time  you  should 
know  the  exact  facts;  God  knows  I  have  nothing  to  keep 
back  in  this  case.  I  want,  if  I  can,  to  help  you,  gentlemen, 
discharge  the  most  painful  and  important  duty  of  your 
life  time.  And  what  did  I  do  ?  In  this  court  room,  I 
went  to  the  dock  and  said  kindly  to  the  prisoner,  "Henry, 
I  would  like  to  have  three  doctors,  whom  I  have  here,  talk 
with  you  in  the  court  room".  He  expressed  a  preference 
to  have  them  examine  him  in  jail  in  the  evening.  He 
could  have  been  examined  here,  but  I  yielded  to  him  and 
they  saw  him  in  jail.  General  Butler  wanted  to  make 
it  appear,  insinuated  that  I  had  deceived  this  poor  man 
as  to  whom  the  experts  really  were,  and  I  was  obliged  to 


OF  A  LONG  LIFE.  Ill 


call  Mr.  Cronin,  the  deputy  sheriff,  who  sits  beside  the 
prisoner,  to  show  that  there  was  no  deception,  and  that  he 
was  treated  with  every  consideration  of  kindness  and  hu- 
manity; although  General  Butler  knew,  and  I  felt  you 
knew  enough  of  me,  gentlemen,  I  certainly  hope  you  do, 
to  believe  I  would  in  no  way  wrong  the  prisoner. 

It  was  believed  that  one  of  your  panel  had  been  a  suf- 
ferer in  Andersonville,  and  General  Butler,  as  I  said 
before,  knew  where  and  how  to  touch  a  juryman's  heart, 
and  how  to  reach  his  prejudices;  and  we  have  had  Ander- 
sonville, the  horrors  of  that  terrible  place,  the  sufferings 
of  the  prisoner  while  there  and  afterwards,  before  you 
all  the  time.  Gentlemen,  if  there  is  a  man  upon  your 
panel  who  was  a  soldier  and  fought  to  save  the  nation 
from  its  enemies,  who  was  a  patriot  and  his  sense  of  duty 
was  such  that  he  was  willing  to  give  up  his  own  life  to 
preserve  our  republican  government,  and  then  suffered 
the  agonies  and  horrors  of  Andersonville,  it  is  to  him  I 
make  my  appeal;  he  is  the  citizen  I  can  appeal  to  con- 
fidently; he  is  possessed  of  the  highest  qualities  for  citi- 
zenship; I  can  and  do  expect  from  him  the  same  devotion 
to  duty,  the  same  high  consideration  of  citizenship  in  the 
jury  box  where  our  liberties  are  preserved  and  the  govern- 
ment in  its  integrity  is  maintained,  as  was  exhibited  on 
the  field  of  battle  and  in  prison.  A  man  who  stood  like 
a  wall  between  the  government  and  its  enemies  will  stand 
equally  strong  and  faithful  in  the  jury  box.  'No  matter 
that  his  eyes  overflow  with  tears;  you  will  find  after  the 
tears  are  wiped  away  his  strong  sense  of  duty  and  justice 
remain.  I  will  trust  a  true  soldier,  a  brother  comrade  of 
both  of  us.  I  am  not  afraid  of  a  soldier ;  they  are  of  our 
best  citizens;  I  am  willing  he  should  weep  with  the  wife 
and  these  friends  of  the  prisoner,  and  I  will  never  com- 


112  SOME  RECOLLECTIONS 

plain  of  that,  for  back  of  tears  I  know  there  is  a  con- 
science and  a  stem  sense  of  right  and  justice. 

It  was  further  shown  with  great  delicacy  by  General 
Butler  that  the  prisoner  lost  his  masonic  charm,  that  it 
was  stolen  from  him.  We  all  knew  there  were  members 
of  the  masonic  order  upon  this  panel;  our  investigation 
of  jurors  had  shown  that.  But  if  there  was  to  be  an  at- 
tempt to  drag  masonry  in  here  for  improper  purposes,  I 
knew  enough  of  that  ancient  and  honorable  order  to 
know  that  such  an  attempt  would  fail.  There  is  nothing 
in  masonry  that  allows  one  mason  to  murder  his  brother 
mason,  or  that  will  prevent  a  mason  from  doing  his  duty 
to  his  conscience,  to  his  country,  and  his  God.  Let 
not  that  ancient  order  be  slandered;  a  true  mason  is  al- 
ways and  everywhere  a  true  and  faithful  citizen,  and  I 
have  a  right  to  say  that  every  mason  on  this  jury  will  dis- 
charge his  conscientious  duty. 

We  now  come,  gentlemen,  to  consider  this  defence  of 

insanity,  and  it  is  an  attempt,  I  say  to  you  with  candor, 

to  mislead  you,  to  make  you  find  a  false  verdict,  and  to 

make  you  exercise  the  pardoning  power,  a  power  not  given 

by  the  Constitution  to  the  jury,  but  vested  elsewhere. 
******** 

Perhaps  right  here  gentlemen  I  ought  to  say  to  you 
what  has  not  yet  been  stated,  and  what  I  think,  with  all 
due  respect  to  our  friends  on  the  other  side,  has  been  pur- 
posely avoided,  the  law  of  responsibility  as  applied  to  a 
case  of  this  kind.  His  honor,  in  his  charge,  will  tell  you 
that  a  man  may  have  delusions,  be  partially  insane,  and 
still  be  responsible  for  his  criminal  acts.  Society  could 
not  exist  under  any  other  rule.  The  judge  will  tell  you 
that  "although  a  man  may  be  laboring  under  partial  in- 
sanity, if  he  still  understands  the  nature  and  character  of 
his  act  and  its  consequences,  if  he  has  a  knowledge  that 


OF   A  LONG  LIFE.  113 


it  is  wrong  and  criminal,  and  a  mental  power  sufficient  to 
apply  that  knowledge  to  his  own  case,  and  to  know  that  if 
he  does  the  act  he  will  do  wrong  and  receive  punishment, 
such  partial  insanity  is  not  enough  to  exempt  him  from 
responsibility  for  criminal  acts".  Take  this  law  of  re- 
sponsibility with  you  through  the  case  and  you  cannot  go 
astray.  Has  the  case  of  that  crank,  Guiteau,  gone  out  of 
your  minds?  The  world  knew  he  was  a  crank,  yet  he 
was  held  responsible  for  his  great  crime.  Take  the  case 
of  the  boy  Pomeroy,  who,  when  about  fourteen  years  old, 
killed  another  boy,  out  of  a  desire  to  see  human  blood  and 
inflict  cruelties  upon  a  playmate,  he  was  held  liable  for 
his  crime  of  murder.  The  sole  question,  therefore,  for 
you  to  ascertain,  gentlemen,  is  whether  the  prisoner  had 
capacity  and  intelligence  enough  to  know  a  right  act  from 
a  wrong  one,  and  to  know  the  consequences  following  a 
wrong  and  criminal  act.  And  by  and  by,  gentlemen,  you 
will  see  that  he  had  a  clear  perception  of  his  crime,  when 
after  the  murder  he  hurried  to  the  police  station.  He 
knew  the  place  where  a  great  criminal  belonged, — in  the 
lockup.  He  had  satisfied  his  revenge,  which,  with  pro- 
fane lips,  he  had  threatened,  and  he  then  expected  to  take 
the  consequences  and  suffer  the  penalty  provided  by  law. 
This  state  of  the  prisoner's  sane  mind  continued,  until 
General  Butler  inspired  him  with  hope. 

They  say  Goodwin's  father,  Harvey,  was  peculiar ! 
Wonderful,  is  it  not  ?  It  is  said  in  this  world  that  no  two 
men  are  exactly  alike.  We  are  all  more  or  less  peculiar. 
There  is  no  community  which  does  not  have  men  with 
peculiarities.  The  world  is  full  of  them.  If  General 
Butler  will  excuse  me,  and  I  know  he  will,  I  will  say,  we 
have  had  before  us  for  eight  days  the  most  distinguished 
illustration  of  a  peculiar  man.  There  never  was  and 
never  will  be  but  one  General  Butler.    He  is  a  great  man, 


114  SOME  EECOLLECTIONS 

possessed  of  great  abilities,  with  great  brain  power,  and 

yet,  bis  most  admiring  friends  do  not  claim  bim  to  be  a 

man  of  perfect  balance. 

I  do  not  expect  to  occupy  five  bours  in  addressing  you, 

(the  time  taken  by  General  Butler),  but  I  am  confident, 

if  you  will  give  me  your  attention,  I  can  convince  you 

that  there  is  no  substance  to  this  insane  defence;  I  can 

satisfy  your  intelligence  and  your  judgment  that  there  is 

no  solid  foundation  for  it  to  rest  on.    We  start,  gentlemen, 

with  the  presumption  that  the  prisoner  was  sane.     The 

law  presumes  every  man  sane  and  responsible. 

******** 

The  defence  claim  and  attempt  to  prove,  that  the  pris- 
oner was  insane;  that  he  had  a  delusion,  that  Mr.  Swan 
had  wronged  him,  cheated  him  out  of  his  patent,  and 
otherwise  misused  him.  We  find  from  the  description 
given  by  the  witnesses  on  either  side,  that  we  have  in 
Henry  K.  Goodwin  an  erratic,  jealous,  envious  and  pas- 
sionate man,  who  did  not  control  himself;  not  a  bad 
hearted  man,  not  a  bad  meaning  man;  but  this  is  exactly 
the  character  of  the  man  as  you  have  heard  it  portrayed 
all  the  way  through  the  case,  eccentric,  envious,  jealous 
and  at  times  very  passionate. 

N^ow  then,  gentlemen,  we  come  to  an  important  and 
decisive  point  in  this  case,  the  beginning  and  the  end  of  it. 
They  charge  and  we  admit  that  Goodwin  had  said,  what 
the  evidence  clearly  shows,  that  Swan  had  his  papers, 
patents,  drawings,  etc.,  and  would  not  give  them  up.  We 
also  admit,  as  they  now  claim,  that  Swan  had  not  wronged 
nor  cheated  him.  But  we  deny  that  the  prisoner  was  the 
subject  of  an  insane  delusion,  because  his  belief  was 
founded  upon  actual  husijiess  transactions  with  Swan. 

The  evidence  gentlemen,  to  sustain  this,  needs  only  to 
be  stated  in  general  propositions  to  enable  you  to  see  its 


OF  A  LONG  LIFE.  115 


truth.  It  is  the  key  which  unlocks  this  case  and  shows 
the  combination;  it  explains  and  makes  clear  as  daylight 
the  evidence  of  the  medical  experts;  and  it  separates  and 
distinguishes  the  true  from  the  false  issues  involved,  so 
that  you  can  make  no  mistake. 

First.  Goodwin  claimed  that  he  had  invented  a  switch 
board.     This  is  no  delusion. 

Second.  He  claimed  he  had  lost  possession  of  it 
through  Swan.  This  is  no  delusion ;  it  had  been  assigned 
to  Swan  and  others,  so  that  Goodwin  alone  could  not  sell 
it  nor  take  out,  in  his  own  name,  the  patent  which  had  not 
actuallv  been  issued. 

Third.  He  claimed  that  Swan  had  his  papers,  old  con- 
tracts, accounts,  drawings,  diagrams,  important  evidence 
of  his  invention, — and  would  not  give  them  up.  There  is 
no  delusion  in  that,  gentlemen.  They  are  found  among 
the  dead  man's  papers  and  are  produced  here  in  court. 

Fourth.  He  claimed  that  Swan  had  not  done  as  he 
agreed.  This  is  no  delusion.  The  evidence  shows  con- 
clusively that  the  agreement  under  which  the  corporation 
was  to  be  formed  and  the  switch  board  manufactured  and 
sold  had  not  been  carried  out. 

About  these  propositions  of  fact,  all  the  evidence  I 
desire  to  touch  upon,  as  showing  the  quarrel,  loss  of 
friendship,  and  final  enmity  growing  out  of  these  business 
relations,  and  here  they  may  all  be  grouped  and  considered. 

First.  In  February,  1884,  Goodwin  and  Swan  were 
working  together  on  the  switch  board.  Goodwin  rushed 
to  Washington;  borrowing  the  money  of  Mr.  Knox  to 
pay  expenses.  May  3d,  one  patent  had  been  issued  and 
another  was  about  to  issue,  but  was  not  taken  out.  It 
was  put  into  interference  by  Dr.  Waite.  And  here,  gen- 
tlemen, the  suspicion  begins,  and  some  time  in  July,  1884, 
more  than  a  year  before  the  homicide,  was  the  last  time 


116  SOME  RECOLLECTIONS 

that  Goodwill  ever  entered  the  house  of  his  former  friend. 
And  here,  gentlemen,  I  pause,  perhaps  a  little  out  of  order, 
to  call  your  attention  to  General  Butler's  cruelty  to  Mrs. 
Swan.  He  says  I  brought  the  widow  here  to  make  an 
exhibition  of  her!  Do  you  believe,  gentlemen,  I  would 
have  it  in  my  heart  to  practice  such  an  artifice  to  the  in- 
jury of  this  prisoner,  whom  I  have  no  wish  and  certainly 
no  right  to  wrong?  I  should  be  unworthy  of  the  high 
office  I  hold,  should  I  do  such  a  thing ;  and  General  Butler 
does  not  believe  it,  for  he  has  said,  in  your  presence,  that 
I  am  an  honorable  man,  and  such  conduct  is  utterly  in- 
consistent with  honesty. 

But  let  us  consider  whether  the  testimonv  of  Mrs.  Swan 
was  important;  if  it  was,  then  we  can  determine  the 
animus  and  character  of  the  remark.  The  defence  claims 
that  there  was  no  disagreement  or  quarrel  between 
Goodwin  and  Swan,  but  that  they  were  intimate,  personal 
friends  on  the  day  of  the  homicide,  and  therefore,  as 
Goodwin  killed  his  best  friend,  he  must  have  been  suffer- 
ing under  a  delusion.  We  deny  this  position  of  the 
defence,  and  claim,  first,  that  there  was  jealousy  and  sus- 
picion on  the  part  of  Goodwin  against  Swan ;  secondly, 
misunderstanding  and  disagreement  between  them ;  and 
finally,  an  open  quarrel,  with  loss  of  confidence  in  Good- 
win by  Swan,  and  eternal  hatred  and  enmity  on  the  part 
of  Goodwin.  If  Mr.  Swan  were  alive,  do  you  think  I 
would  have  any  difficulty  in  showing  these  facts?  And 
although  they  put  in  the  declarations  of  Swan  to  Stowell, 
on  one  occcasion,  yet  the  moment  I  offered  to  open  the 
lips  of  the  dead  so  that  he  might  speak  on  this  all  impor- 
tant subject,  General  Butler  was  loud  with  his  objection. 

But  if  the  lips  of  the  dead  are  forever  sealed,  the  living 
may  speak,  and  I  summoned  and  called  to  the  witness 
stand  that  modest  widow,  that  refined  and  cultured  lady, 


OF  A  LONG  LIFE.  117 


who  gave  testimony  so  clear  and  straight-forward,  that 
General  Butler  had  not  the  courage  to  cross-examine  her. 

She  says  her  husband  and  the  prisoner  were  as  intimate 
as  men  could  be,  up  to  July,  1884;  that  prior  thereto 
they  occupied  the  same  room  and  bed  when  in  New  York ; 
that  Goodwin  was  at  their  house  quite  frequently,  at 
dinner,  tea  and  in  the  evening,  but  never  after  August 
1st,  1884.  This  evidence  goes  with  the  letters,  the  cor- 
respondence, which  ceased  altogether  about  that  time. 
Prior  to  the  commencement  of  the  trouble,  it  was  "Dear 
Albert",  "Friend  Swan"  and  "Dear  Friend" ;  after  sus- 
picion began  its  work,  it  was  "Albert".  Her  evidence  is 
of  the  highest  importance;  it  corroborates  the  evidence 
of  Messrs.  Knox,  Waite  and  Denman,  and  if  I  had  not 
called  her,  I  should  have  failed  to  discharge  my  duty  to 
the  Commonwealth. 

Suppose,  gentlemen,  Mrs.  Swan  with  her  little  boy  had 
sat  near  me,  during  the  whole  trial,  and  whenever  you 
went  out  of  the  court  house,  you  had  observed  them  walk- 
ing hand  in  hand,  you  might  have  believed  I  was  having 
her  "play  a  part",  like  some  of  the  exhibitions  on  the  part 
of  the  defence  in  the  "stage  settings",  heretofore  referred 
to.  She  was  here  in  court  only  one  day,  and  only  long 
enough  to  give  her  evidence,  and  then  she  returns  to  her 
own  desolate  home,  and  to  her  unobtrusive  and  silent 
grief.  The  prisoner,  wickedly,  cowardly  and  maliciously, 
took  the  life  of  her  husband,  and  now  when  he  cannot 
speak,  and  she  comes  to  speak  the  truth  in  vindication  of 
him,  the  prisoner's  counsel,  without  justification,  wickedly 
and  cruelly  says  she  is  being  exhibited!  Shame  on  the 
words  and  the  lips  that  utter  them! 

Her  evidence  will  stand,  a  perpetual  vindication  of  her. 

Yes,  gentlemen,  we  show  you  the  commencement  of 
this  quarrel.     In  July,  1884,  the  prisoner  goes  hurriedly 


118  SOME  RECOLLECTIONS 

to  the  house  of  Mr.  Swan — the  last  time  he  was  ever  there 
— not  finding  him,  he  seeks  him  at  the  office,  and  then 
they  both  go  to  Mr.  Knox's  house,  and  he  gave  you  as  a 
reason  why  he  did  not  invite  them  in,  that  his  little  girl 
was  ill  of  scarlet  fever,  and  he  feared  that  Mr.  Swan's  lit- 
tle boy  might  take  the  disease,  and  so  they  talked  in  the 
yard  under  a  tree.  This  interview  shows  that  jealousy  and 
suspicion  had  already  commenced  its  work.  We  have 
then,  the  testimony  of  Mrs.  Swan,  Mr.  Knox,  and  the 
letters,  and  the  fact  that  the  correspondence  ceases  at  the 
time  the  trouble  began.  But  General  Butler,  who  is  so 
profuse  with  his  attacks  and  charges,  insinuates  that  we 
are  holding  back  some  of  Goodwin's  letters!  That  is  a 
cruel  suggestion  to  make,  and  hard  must  be  the  defence 
which  requires  it.  I  beg  your  pardon,  gentlemen,  for 
speaking  of  myself,  but  I  am  compelled  to.  Do  you 
believe  I  am  so  base,  that  I  would  suppress  a  letter  that 
had  anything  to  do  with  this  case  ?  Mr.  Knox  swears 
that  he  produced  every  letter  found.  But  the  best  answer 
to  this  unkind  insinuation,  and  the  one  which  proves  the 
insincerity  of  it,  is:  that  they  produce  no  letters  of  Swan 
to  Goodwin  after  that  date,  which,  if  there  were  any, 
would  be  in  the  prisoner's  possession;  proving  beyond 
doubt  or  controversy,  that  the  correspondence  ceased  at 
the  time  and  for  the  reason  claimed  by  us. 

Second.  Goodwin  said  and  claimed  that  he  had  parted 
with  his  title  to  the  switch  board.  There  is  no  delusion 
in  that;  it  is  an  undisputed  fact.  We  put  in  the  very 
contract, — and  General  Butler  was  kind  enough  to  read 
it, — in  which  on  August  1st,  1884,  he  conveyed  all  his  in- 
terest in  the  switch  board  to  five  persons,  but  dividing  it 
into  four  shares,  Livermore,  Waite  and  Bartlett,  Swan 
and  Goodwin,  having  one-fourth  each. 

They  say  this  prisoner  had  a  delusion  as  to  the  value 


OF   A   LONG   LIFE.  119 


of  his  patent,  in  thinking  or  claiming  it  was  worth  forty 
thousand  dollars,  when  Knox,  six  months  or  a  year  after- 
wards, thought  it  of  little  value,  and  Waite,  another 
inventor,  considered  it  not  very  valuable. 

All  this  is  as  plain  as  the  nose  on  a  man's  face.  Here 
was  Goodwin,  a  poor  boy,  who  had  been  working  in  a 
harness  shop  in  a  quiet  way  at  small  pay;  he  went  into 
the  telephone  business,  had  shown  considerable  ability  in 
that  direction,  and  had  suddenly  and  unexpectedly  made 
over  two  thousand  dollars.  He  was  elated  by  it,  as  was 
most  natural,  and  he  was  a  good  deal  set  up  by  it.  His 
€gotism  manifested  itself,  and  he  saw  in  his  patent,  like 
all  inventors,  mountains  of  gold. 

If  every  inventor,  who  obtained  a  patent  and  considers 
it  of  great  value,  is  suffering  under  delusion,  I  fear  there 
are  a  great  many  men  under  delusions. 

There  was  then,  an  agreement  that  these  men  should 
form  a  corporation  and  manufacture  and  sell  the  switch 
board,  and  Goodwin  is  writing  from  Maine,  August  4, 
1884,  in  the  letter  which  I  read  to  you,  inquiring  about  it. 
He  has  signed  the  contract,  dated  August  1,  and  writes: 
"Have  they  started  to  make  the  new  telephone  in  the 
factory  yet"  ?     He  is  in  a  hurry  and  cannot  wait. 

I  have  shown  you,  that  these  two  claims  of  his  were  en- 
tirely true,  were  matters  of  fact,  about  which  there  can  be 
no  dispute. 

Third.  Goodwin  claimed  that  Swan  had  his  papers, 
contracts,  diagrams,  etc. ;  and  we  find  them,  evidence 
which  the  bullet  of  the  assassin  cannot  destroy,  and  they 
are  produced  here  in  court.  General  Butler  says  now,  that 
these  papers  are  not  very  important.  Ah,  that  is  not  the 
question.  Did  Goodwin  then  think  them  important,  and 
on  that  account  was  he  demanding  them  ?    Yes. 

I  disagree  with  the  eminent  counsel,   and  am  of  the 


120  SOME  EECOLLECTIONS 

opiniorij  as  testified  by  Mr.  Knox,  that  these  papers  were 
of  great  importance  to  Goodwin.  They  showed  that 
Goodwin  had  invented  and  used  the  switch-board  in  1879, 
prior  to  any  other  person.  Priority  of  invention  and  use, 
is  what  establishes  one's  right  to  a  patent;  Mr.  Knox,  an 
excellent  lawyer,  explained  that  to  you,  although  Brother 
Butler  doubts  whether  you  can  believe  him.  But  Mr. 
Knox  has  lived  too  long  in  this  county  to  be  snuffed  out 
and  disposed  of  so  easily.  You  saw  him  and  never  ob- 
served a  more  candid  appearing  man.  He  is  the  very 
type  of  Mr.  Swan;  they  were  like  as  twin  brothers;  you 
see  one  and  you  have  seen  the  other.  But  Mr.  Knox's 
evidence  is  too  important  not  to  be  attacked.  It  is  not 
enough  that  he  should  lose  his  life-long  friend,  but  Mr. 
Knox  must  needs  be  attacked  because  he  gave  such  in- 
formation as  he  had  concerning  the  case  to  the  Attorney 
General!  Good  heavens!  Mr.  Foreman,  suppose  your 
partner  and  dearest  friend  on  earth  had  been  assassinated, 
would  you  not  think  you  owed  it  to  his  memory  and  the 
public  to  do  all  you  could  to  have  the  murderer  brought 
to  justice! 

There  can  be  no  doubt,  these  are  the  papers  Goodwin 
wanted ;  they  showed  he  invented  and  used  the  switch 
board  in  1879,  prior  to  the  time  Waite  used  it. 

Fourth.  The  prisoner  claimed  that  Swan  had  refused 
to  settle,  to  pay  him  what  he  had  advanced,  to  buy  him 
out.  He  claims  that  he  had  demanded  a  settlement  and 
been  refused,  that  he  had  threatened  to  have  Swan's 
heart's  blood. 

Well,  gentlemen,  was  there  ever  a  settlement  ?  There 
is  no  evidence  of  it ;  on  the  contrary,  it  is  shown  that 
there  was  no  settlement.  Goodwin  did  demand  one  and 
he  said,  having  been  cheated  and  defrauded  twice  before 


OF  A  LONG  LIFE.  121 


he  swore  the  next  time  a  man  wronged  him  he  would  have 
his  heart's  blood. 

Fifth.  He  claimed  Swan  had  not  done  as  he  agreed. 
This  is  no  delusion.  The  parties,  Goodwin,  Swan,  and 
others,  August  1,  1884,  entered  into  a  written  contract  to 
form  a  corporation  and  manufacture  and  sell  this  patent 
switch  board.  They  did  not  do  it.  They  never  have  car- 
ried out  that  agreement.  What  more  was  needed,  gentle- 
men, to  disappoint  such  a  man  as  Goodwin  ?  He  expected 
great  riches  from  the  manufacture  and  sale  of  this  patent. 
The  other  parties  who  had  a  controlling  interest  and  could 
out  vote  him  had  done  nothing;  the  whole  thing  was  at  a 
standstill.  There  is  no  delusion  about  that,  it  is  exactly 
as  Goodwin  claimed.  It  appears  from  the  evidence  of 
both  Waite  and  Knox  that  this  corporation  never  manu- 
factured a  switch  board.  The  reason  why  they  did  not 
do  so  appears,  and  shows  there  was  no  intent  or  purpose 
to  wrong  Goodwin.  They  wanted  this  patent  to  use  and 
sell  in  connection  with  the  Molecular  Telephone  but  they 
were  subsequently  enjoined  and  prohibited  by  the  courts 
from  using  that  telephone.  Goodwin  had  a  right  to  com- 
plain ;  it  was  entirely  reasonable  that  he  should  find  fault 
with  Swan  because  he  failed  to  keep  his  contract;  there 
was  no  delusion  in  such  complaint,  but  it  had  in  it  real 
solid  and  common  sense.  Now,  gentlemen,  you  will  see 
that  all  these  allegations,  which  Goodwin  made, — and  I 
have  recited  to  you — five  in  all,  were  literally  true,  and  he 

was  right  about  them. 

******** 

All  the  government  has  to  do  is  to  satisfy  you  that  there 
was  an  ill  feeling,  a  quarrel,  between  these  men, — not 
that  there  was  an  adequate  cause  for  the  murder,  because 
there  can  be  no  adequate  cause  for  crime — and  when  we 
do  that,  this  defence  is  at  an  end  and  the  prisoner  is 


122  SOME  EECOLLEOTIOISrS 

proven  guilty.  Every  doctor,  every  expert  on  insanity, 
even  Dr.  Hamilton,  tells  you,  that  if  there  was  in  fact 
trouble,  a  quarrel,  between  these  two  men,  it  ends  this 
whole  question  of  delusion,  the  defence  fails.  Mr.  Knox 
swears  before  you,  that  he  met  Goodwin  and  Swan 
several  times,  and  that  Goodwin  was  each  time  making 
demands  upon  Swan;  that  he  was  present  at  the  inter- 
view between  them  after  Goodwin's  return  from  Cleve- 
land, and  he  gives  you  a  full  account  of  what  took  place. 
It  is  so  pertinent,  so  completely  conclusive  of  the  case,  I 
desire  to  call  your  attention  to  it,  and  read  his  evidence, 
because  if  you  believe  him,  and  as  I  look  into  your  faces 
I  know  you  will,  as  his  evidence  carries  conviction  to  the 
■conscience. 

William  S.  Knox.  "As  I  came  in  they  were  talking. 
Swan  was  sitting,  Goodwin  was  standing.  Goodwin  was 
excited  and  pale,  as  I  noticed.  He  was  speaking  as  I 
came  in  and  he  said  to  Mr.  Swan,  that  he  never  had  been 
paid  for  what  he  had  done  and  put  out  on  that  patent,  and 
Swan  told  him  that  nobody  had  got  anything  out  of  it  yet. 
He  said  if  he  could  take  out  the  patent  in  his  own  name 
and  had  the  one  he  had  taken  out,  he  could  sell  it  for 
something,  and  he  wanted  it.  Swan  said:  "It  is  too  late 
to  talk  about  that  now".  Then  Goodwin  said  that  there 
were  a  lot  of  old  contracts,  books  and  papers  in  Swan's 
office  which  he  had  in  Lawrence  in  1879,  they  were  not 
made  over  to  those  parties  or  to  Mr.  Swan,  and  those 
were  his,  that  he  wanted  them.  Swan  said  they  were  im- 
portant upon  this  system  or  switch,  if  it  was  ever  issued, 
and  he  considered  that  he  had  the  same  right  to  them  as 
he  had  to  the  patents  themselves  or  the  papers  themselves. 
Then  Mr.  Swan  went  on  and  said  that  if  he  (Goodwin) 
had  done  as  he  ought  in  Ohio,  put  in  the  system  there  and 
furnished  the  diagrams  that  they  wanted,  he  could  have 


OF  A  LONG  LIFE.  123 


been  there  and  the  system  could  have  been  started,  but 
he  didn't,  and  Swan  said  he  would  do  nothing  about  it. 
I  left  them  talking". 

General  Butler  made  an  argument  to  you  that  these 
contracts  were  not  of  value  or  consequence.  I  say  to  you 
with  all  due  respect  to  him,  that  the  claim  which  Good- 
win made  at  that  interview  was  a  good  one  as  matter  of 
law;  he  had  an  undoubted  right  to  those  papers,  they  had 
not  been  made  over  or  assigned,  although  Swan  had  pos- 
session of  them.  But  it  is  only  of  consequence  now  as 
showing  that  there  was  a  controversy,  that  there  was  an 
actual  dispute  and  not  a  delusion  on  the  part  of  Goodwin. 
Swan  said  these  papers  were  important  upon  the  subject 
of  the  switch  board.  That  is  exactly  what  we  have 
claimed.  They  were  important  as  showing  who  invented 
the  switch  board,  who  had  the  right  to  it.  It  is  the  pri- 
ority of  invention  which  gives  a  man  the  right  and  title  to 
a  patent. 

Here  is  the  prisoner  walking  into  Swan's  office,  pale 
with  excitement,  and  demanding  these  books  and  papers 
which  belonged  to  him.  Here  was  an  actual  transaction, 
gentlemen,  "I  want  them"  he  says,  "I  didn't  make  over 
to  you  those  old  books  and  papers,  which  show  the  pri- 
ority of  my  invention".  Swan  said,  "they  were  impor- 
tant upon  the  system  of  switch,  and  he  considered  he  had 
the  same  right  to  them  as  to  the  patents  themselves". 
Goodwin  demands  them,  and  Swan  tells  him,  finally,  "he 
would  do  nothing  about  it". 

This  evidence  opens  to  view  a  controversy  about  actual 
existing  facts,  shows  that  they  had  had  trouble  and  quar- 
reled over  it,  that  Goodwin  became  excited  and  enraged, 
demanded  his  papers,  and  that  Swan  refused  to  give  them 
up ;  that  then  Goodwin  exhibited  the  same  disposition 
shown    elsewhere;    the    same    shown    when    he    thought 


124  SOME  EECOLLECTIONS 

Waite  was  getting  ahead  of  him  concerning  a  patent, — 
and  threatened  to  kill  him.  Goodwin's  delusion  seems 
to  have  run  against  anybody  who  interfered  with  him! 
He  is  an  irritable,  jealous,  excitable  man,  and  when  Swan 
refuses  to  give  up  papers  which  Goodwin  believed  he  had 
a  right  to,  and  which  as  matter  of  law  he  had  a  right  to, 
then  you  see  the  state  of  mind  he  is  in,  and  what  it  finally 
leads  to.  A  man  has  no  right  to  allow  his  passions  to  run 
away  with  him,  the  laws  holds  men  responsible  in  such 
cases. 

General  Butler  has  assumed  many  things  here  concern- 
ing the  prisoner  and  then  says  they  are  all  delusions;  he 
makes  a  man  of  straw  and  then  demolishes  him.  But 
see  how  easily  he  is  answered,  even  by  me,  and  the  answer 
probably  has  suggested  itself  to  the  intelligence  of  every 
man  on  your  panel  long  ago.  General  Butler  says  that 
Goodwin  had  a  delusion  up  in  Canada  that  Swan  was  fol- 
lowing him. 

General  Butler.     Preceding  him. 

Attorney  General.     I  prefer  to  argue  the  case  myself. 

General  Butler.  I  am  merely  stating  my  ground  to 
correct  your  mistake. 

Attorney  General.  I  prefer  to  argue  according  to  my 
understanding  of  the  evidence,  and  I  do  not  intend  to 
occupy  over  one-half  of  the  time  you  did  (five  hours).  It 
is  claimed  that  Goodwin  had  a  delusion  that  Swan  was 
preventing  him  from  getting  work.  Denman  said  Swan 
told  him,  "Don't  vou  recommend  him".  Goodwin  could 
not  obtain  work  without  such  recommendation.  The  first 
question  asked  him  was,  "Where  did  you  come  from,  for 
whom  have  you  worked"  ?  "I  have  been  at  work  for 
Albert  D.  Swan",  or,  "I  have  been  at  work  for  Swan  and 
Knox".     "Have  you  a  recommendation".     "No". 

He  went  to  Canada  and  there  sought  work.     I  do  not 


OF  A  LONG  LIFE.  125 

know  how  long  he  stayed,  there  is  no  evidence  on  the 
subject;  it  may  have  been  one,  two,  or  three  weeks.  He 
says  he  applied  for  work  and  at  first  they  thought  they 
would  try  him ;  but  in  the  interim  they  must  have  written 
to  Swan.  We  have  been  able  to  prove  that  Swan  received 
a  letter,  and  he  and  Knox — 

General  Butler.  I  object,  may  it  please  your  Honors. 
This  is  exactly  what  your  Honor  ruled  out,  and  now  if  it 
is  to  be  argued  in,  I  should  like  to  understand  it. 

Attorney  General.     I  do  not  understand  it  so. 

General  Butler.  You  offered  to  prove  something  about 
a  letter  received  from  Canada  and  a  reply,  but  you  did 
not  produce  any  such  letters,  and  I  said  if  there  were  any 
such  letters  you  ought  to  produce  them,  and  the  Court 
ruled  it  out.    Now,  you  can't  argue  that  to  the  jury,  sir. 

Attorney  General.  The  Court  allowed  me  to  put  in  the 
fact  that  a  letter  had  been  received,  and  an  answer  sent 
without  putting  in  the  contents  of  the  letters,  and  that  is 
all  I  am  trying  to  put  in  now. 

General  Butler.  Pardon  me,  the  Court  has  allowed  no 
such  thing,  if  it  please  your  Honors. 

Attorney  General.  I  think  the  report  will  show  to  the 
contrary. 

General  Butler.  You  offered  the  contents  of  a  letter, 
of  the  fact  that  one  was  sent ;  then  there  was  an  objection 
that  these  letters  ought  to  be  produced,  if  there  were  any 
on  either  side;  one  letter  would  be  in  the  hands  of  Swan 
or  Knox,  if  they  received  one,  and  the  answer  to  it  would 
be  in  the  hands  of  the  other  party, — and  nothing  could 
be  proved  about  it,  as  your  Honors  ruled,  and  the  matter 
passed  away.  Your  Honors  will  remember  that  I  said, 
"now  perhaps  I  see  dimly  why  my  Canada  deposition 
was  objected  to".  I  ask  your  Honors  to  rule  upon  this 
point,  because  it  is  very  important. 


126  SOME  EECOLLECTIONS 

Allen,  J.  There  was  no  evidence  as  to  the  contents  of 
these  letters,  but  the  fact  that  a  letter  was  received  and 
answered  was  in  the  case  and  is  in  the  case,  but  not  the 
contents  of  the  letters. 

Attorney  General.  It  is  exactly  as  I  stated  it  to  you, 
gentlemen. 

General  Butler.  Your  Honors  will  save  me  an  excep- 
tion. 

Attorney  General.  It  appears  that  a  letter  was  re- 
ceived from  Canada,  and  an  answer  sent  after  consulting 
with  Swan.  Goodwin  went  to  Canada,  and  what  followed 
is  plain.  He  applied  for  work  and  had  no  recommenda- 
tions. They  sat  down  and  vsrrote  for  some  purpose  to  Mr. 
Swan. 

General  Butler.  Now  he  is  arguing  the  contents  of  the 
letter,  the  purpose  of  the  letter. 

Attorney  General.  'No,  1  am  not.  There  was  an  an- 
swer sent  back,  and  that  fact,  is  all  I  am  entitled  to.  But 
I  say,  gentlemen,  it  was  not  a  delusion.  These  suggestions 
are  a  complete  answer  to  the  claim  of  delusion. 

They  say,  the  prisoner  had  a  delusion  concerning  his 
trunk  having  been  broken  open  and  articles  stolen  there- 
from. The  only  evidence  on  the  subject  comes  from 
Goodwin.  He  said  his  trunk  was  broken  open,  and  cer- 
tain articles  were  stolen,  and  he  thought  Swan  had  some- 
thing to  do  with  it,  or  was  at  the  bottom  of  it. 

My  brother  in  his  argument,  assumes  that  the  trunk 
was  not  broken  open  at  all!  Upon  what  ground?  Do 
they  claim  that  Goodwin,  a  perfectly  honest  man  as  they 
say,  told  a  lie  about  it  ?  No ;  his  trunk  was  broken  open 
and  his  property  stolen,  and  Goodwin  told  the  truth  about 
it.  What  is  more  likely,  that  a  suspicious,  jealous  man, 
having  had  a  quarrel  with  Swan,  and  having  articles 
stolen  which  would  be  of  value  to  Swan  in  connection  with 


OP  A  LONG  LIFE.  127 


this  patent,  should  suppose  and  believe  he  may  have  had 
something  to  do  with  it?  We  are  apt  to  believe  our  ene- 
mies do  us  more  injury  than  they  really  do.  It  is  also 
claimed  that  Goodwin  had  delusions,  because  when  he  saw 
members  of  the  Cleveland  company  talking  together  he 
believed  they  were  talking  about  his  switch  board.  Un- 
doubtedly they  were  talking  about  it;  they  had  requested 
him  to  put  it  in  for  their  company  and  he  had  refused. 
They  were  having  trouble  about  it.  What  would  be  more 
likely  than  that  the  members  of  the  company  should  talk 
about  the  very  thing  which  was  causing  such  serious 
trouble. 

We  have  now  considered,  and  I  trust  candidly  and  fair- 
ly, all  the  evidence  offered  by  the  defence,  except  that  of 
their  experts,  and  we  will  examine  that  by  and  by,  and  I 
desire  to  call  your  attention  to  the  evidence  of  the  gov- 
ernment in  answer  to  particular  acts  tending  to  show  in- 
sanity. 

******** 

Right  here  let  me  tell  you  what  ended  the  controversy 
between  Goodwin  and  Dr.  Waite.  The  doctor  upon 
meeting  Goodwin,  told  him  to  his  face,  looking  him  in  the 
eye,  that  he  had  heard  of  his  threat  to  kill,  and  that 
if  he  ever  saw  the  first  motion  in  that  direction  on  Good- 
win's part  he  would  shoot  him  as  quick  as  he  would  a  dog. 
Goodwin  is  a  natural  coward !  He  would  not  fight  in  the 
war,  said  he  enlisted  as  a  drummer,  until  his  lieutenant 
told  him  that  if  he  showed  the  white  feather  he  would 
shoot  him. 

This  murder  is  one  of  the  most  cowardly  ever  com- 
mitted! Think  of  a  man  who  has  been  a  soldier,  armed 
with  a  revolving  pistol  containing  five  charges  and  with 
that  dangerous  stiletto,  entering  the  office  of  a  man  who  is 
unarmed  and  defenceless,  and  while  that  man  is  writing 


128  SOME  RECOLLECTIONS 

at  his  desk,  entirely  off  his  guard  and  unsuspecting,  creeps 
behind  him  and  shoots  him  in  the  back  of  the  head !  This 
is  not  the  act  of  an  insane  man,  there  was  too  much 
method  in  his  madness;  it  is  the  cowardly  act  of  a  sane 
man!  In  South  America  even,  they  give  an  enemy  a 
show  for  his  life. 

But,  gentlemen,  we  do  not  stop  by  proving  that  this 
prisoner  never  exhibited  to  the  public,  to  his  acquaint- 
ances, and  to  his  intimate  friends,  any  evidence  of  de- 
lusions or  insanity.  We  have  something  more  potent  and 
important.  His  letters  and  correspondence,  for  many 
years  past,  which  have  been  read  to  you  by  the  district 
attorney,  his  applications  for  patents  and  affidavits,  pre- 
pared by  himself  and  in  his  handwriting,  and  his  dia- 
grams and  drawings,  showing  his  great  inventive  genius, 
scientific  knowledge  and  practical  experience,  are  all  be- 
fore you,  and  you  will  have  them  with  you  in  the  jury 
room.  These  are  convincing  and  conclusive  proofs  that 
the  prisoner  is  and  was  a  perfectly  sane  and  responsible 
being;  and  right  here  in  court  we  find  the  prisoner  calling 
Messrs.  Waite  and  Knox  to  the  dock  and  suggesting  how 
they  can  so  shape  their  evidence  as  to  help  this  insane 
defence!  General  Butler  forgetting  himself  and  his  de- 
fence, you  will  remember,  went  to  the  dock  and  told  the 
prisoner,  in  your  hearing,  not  to  talk  to  anybody.  Think 
of  saying  that,  to  a  man  claimed  to  be  insane ! 

I  fear,  gentlemen,  I  have  wearied  you,  and  were  it  not 
for  the  fearful  responsibility  which  is  upon  all  of  us,  I 
should  hesitate  to  take  more  of  your  time. 

******** 

So,  Mr.  Foreman  and  gentlemen  of  the  jury,  it  is 
proven  and  established: 

1.     That    Goodwin    and    Swan    commenced    to    have 


OF  A  LONG  LIFE.  129 


trouble  in  the  summer  or  fall  of  1884;  that  trouble  in- 
creased until  Goodwin  came  back  from  Cleveland  in 
April,  1885,  when  there  was  an  open  quarrel;  that  the 
quarrel  increased  in  violence  until  August  27,  1885,  when 
Goodwin  took  the  life  of  Swan  on  account  of  the  quarrel 
and  to  satisfy  his  hatred  and  revenge. 

2.  You  have  the  testimony  of  a  large  number  of  wit- 
nesses, associates,  companions  and  friends  of  the  prison- 
er, for  a  series  of  years,  that  he  exhibited  no  evidence  of 
delusions  or  insanity. 

3.  His  own  letters,  affidavits,  applications  for  patents, 
■diagrams  and  drawings,  his  own  writing  and  handiwork, 
are  conclusive  evidence  in  the  same  direction. 

4.  We  have  the  evidence  and  opinions  of  five  of  the 
ablest  scientists  in  ISTew  England,  Doctors  Goldsmith, 
Hurd,  Bancroft,  Thompson  and  Jelly,  who  tell  you,  if 
there  was  a  quarrel  before  mentioned,  then  there  is  no 
doubt  the  prisoner  was  sane  and  entirely  responsible  for 
liis  crime.  In  fact  Dr.  Hamilton  also  agrees  to  this,  but 
I  am  unable  to  recommend  him  to  you  as  an  expert  on 
insanity. 

It  having  been  established,  we  having  sustained  the 
burden  which  is  on  the  Commonwealth  to  prove  that  the 
prisoner  was  responsible  for  his  criminal  act,  we  come 
now  to  consider  what  crime  he  committed.  And  I  agree 
with  the  prisoner's  counsel,  that  Goodwin  is  either  not 
guilty  by  reason  of  insanity,  or  he  committed  this  murder 
with  deliberately  premeditated  malice  aforethought.  Was 
there  ever  committed  a  more  cold-blooded,  deliberately 
premeditated  murder?  Was  there  ever  a  more  wicked, 
malicious  and  cowardly  assassination?  A  murder  con- 
templated and  threatened  for  many  months ;  a  murder 
deliberately  planned  and  calmly  executed  in  accordance 
therewith.    A  murder  for  money,  because  Swan  would  not 


130  SOME  EECOLLECTIONS 

pay  what  the  prisoner  claimed  was  due,  or  give  up  papers, 
etc.,  which  belonged  to  him ;  the  deliberate  act  of  the  high- 
wayman, "Your  money  or  your  life" !  A  wicked  spirit 
has  been  cultivated  and  encouraged  for  a  long  time,  until 
it  has  taken  control  and  mastery  of  the  man,  and  been  al- 
lowed with  deliberation  and  premeditation,  to  break  forth 
and  satisfy  its  hatred  and  revenge.  "I  told  him  a  year 
ago,  if  he  did  not  come  to  a  settlement  with  me,  I  would 
have  his  heart's  blood,  I  have  taken  it,  and  I  am  satisfied 
and  prepared  to  take  the  consequences".  Two  days  before 
he  sold  his  tools  to  Bunker,  saying,  "you  will  see  what  I 
am  going  to  do  in  a  day  or  two".  Dr.  George  W.  Sar- 
gent, the  physician  at  the  jail,  a  gentlemen  and  a  man  of 
honor,  says  Goodwin  told  him  Christmas  day  that  he  went 
to  Swan's  ofiice  that  morning  with  the  intention  and  for 
the  purpose  of  killing  him.  Those  weapons,  with  which 
he  was  armed,  the  revolver  and  the  dagger,  confirm  the 
evidence.  That  young  man  Porter,  with  an  honest  face 
and  a  truthful  story,  not  contradicted  by  Frank  Stowell,. 
who  was  present,  tells  you  Goodwin  said  on  the  way  to 
surrender  himself  to  the  police,  "I  have  killed  the  son  of 
a  bitch".  The  calling  the  police  by  telephone,  the  deliv- 
ery of  the  weapons  to  his  uncle,  the  walk  to  the  police 
station,  his  conversation  and  coolness  there, — "You  need 
not  fear  I  will  commit  suicide",  all  show  a  premeditation 
and  programme  and  the  deliberate  execution  of  the  same ; 
and  there  is  not  a  single  thing  which  can  be  said  in  ex- 
cuse, or  a  circumstance  offered  in  mitigation  of  this  cow- 
ardly assassination.  All  the  defence  attempt  to  say  is  that 
Goodwin  really  thought  Swan  had  cheated  and  greatly 
wronged  him,  but  they  now  admit  that  Swan  had  not 
seriously  wronged  him,  and  that  was  a  mistake.  A  pretty 
serious  mistake  for  Mr.  Swan  and  his  heart-broken  fam- 


OF   A  LONG  LIPE.  131 


You  have  been  selected,  gentlemen,  to  decide  this 
momentous  issue.  Your  names  and  residences  have  been 
given  to  the  public,  and  a  great  responsibility  is  upon 
you.  The  City  of  Lawrence,  the  County  of  Essex,  the  Com- 
monwealth of  Massachusetts,  and  all  'New  England  are 
anxiously  waiting  for  your  verdict.  The  wives  of  Essex 
do  not  want  to  be  bereft  of  their  husbands  by  wilful  mur- 
der and  have  it  called  delusion,  and  the  children  of  the 
county  do  not  want  to  lose  their  parents  by  assassination 

and  have  it  called  insanity. 

******** 

Passing  over  many  things  which  perhaps  I  ought  to 
refer  to,  and  which  I  shall  think  of  as  important  here- 
after, I  choose  my  closing  words  with  some  care  and  de- 
liberation. We  cannot,  gentlemen,  ask  your  sympathy. 
Your  verdict  cannot  give  back  the  husband  to  the  widow 
nor  the  father  to  the  orphan.  I  can  only  appeal  to  you  to 
protect  society.  God  help  us  if  the  revolver  and  the  sti- 
letto of  South  America  are  to  become  potent  in  Massachu- 
setts. God  help  us  if  the  hatred  of  our  enemies  is  to  be 
called  a  delusion!  God  help  us  if  the  verdicts  of  juries 
are  to  go  to  the  ablest  lawyer !  Gentlemen,  up  to  the  fifth 
day  of  January,  in  the  year  of  our  Lord  eighteen  hundred 
and  eighty-six,  juries  in  Massachusetts  have  stood  against 
this  claim  of  insanity  as  a  defence  to  murder.  If  the 
barriers  are  now  to  be  let  down  for  the  first  time,  I  hope 
I  have  so  discharged  my  duty  that  the  responsibility  will 
not  rest  on  me,  but  it  shall  rest  where  it  belongs,  upon  the 
heads  of  the  twelve  men  who  fail  to  keep  their  oaths,  and 
fail  to  discharge  their  duty  to  their  country  and  their 
God. 

[Judge  Allen  charged  the  jury.  They  retired  to  con- 
sider their  verdict  about  6  o'clock,  and  returned  into  court 
between  twelve  and  one  o'clock  on  the  morning  of  the  6th 


132  SOME  KECOLLECTIONS 

of  January  with  a  verdict  of  murder  in  the  second,  de- 
gree.'] 

April  20,  1886,  Goodwin  was  sentenced  to  imprison- 
ment for  life  in  the  state  prison. 

March  17,  1905,  Goodwin  was  granted  a  conditional 
pardon  by  the  governor  and  council,  and  is  now  (1907) 
in  the  Soldiers'  Home  in  California. 


CHAPTER  Yin. 


ATTOKNEY  GENERALSHIP,— Continued 


Commonwealth  vs.  Alfeed  J.  Adams. 

On  I^ovember  5,  1875,  one  Dickinson  was  found  dead 
in  his  house  where  he  lived  alone  in  Amherst.  An  axe 
covered  with  blood  was  by  his  side.  He  had  been  dead 
several  days  when  discovered. 

It  was  remembered  that  Dickinson  had  hired  a  tramp, 
who  came  along,  to  help  him  harvest  his  tobacco.  A  re- 
ward of  $500  was  offered  for  the  detection  and  conviction 
of  the  murderer.  A  description  of  the  tramp  was  sent 
out  by  the  authorities  on  a  postal  card  announcing  the 
offer  of  reward. 

Ten  years  afterwards  a  sheriff  in  the  mountains  of 
Tennessee  sent  a  letter  to  the  postmaster  of  Amherst  mak- 
ing enquiries  concerning  the  murder  and  offer  of  reward. 

The  sheriff  subsequently  stated  that  he  had  the  mur- 
derer in  his  possession,  Alfred  J.  Adams,  who  had  been 
convicted  for  forgery  and  sentenced  to  serve  with  a  chain 
gang  in  the  mines.  Adams  confessed  that  he  was  the 
murderer  of  Dickinson,  told  all  the  particulars,  and  said 
that  he  preferred  to  be  hanged  in  Massachusetts  than  serve 
his  sentence  in  the  mines. 

Adams  was  subsequently  indicted  and  brought  back 
here  for  trial.  It  appeared  at  the  trial  that  Dickinson 
had  sold  his  tobacco,  receiving  some  $200;  that  Adams 


134  SOME  EECOLLECTIONS 

was  with  him  at  the  time,  and  that  night  white  Dickinson 
was  asleep  on  the  lounge  Adams  killed  him  with  the  axe, 
took  the  money  and  left.  He  had  followed  the  vocation 
of  tramping  and  stealing  since. 

He  was  not  a  bad  looking  man,  being  six  feet  tall.  At 
the  trial  some  very  respectable  ladies  in  Northampton 
sent  the  prisoner  flowers.     The  defence  was  insanity. 

The  venerable  Dr.  Earle,  in  charge  of  the  insane 
asylum  at  ^Northampton,  who  was  opposed  to  capital  pun- 
ishment, testified  at  the  trial,  that  Adams  was  sane  enough 
for  murder  in  the  second  degree ! 

Adams  was  convicted  of  murder  in  the  first  degree.  His 
counsel  applied  to  have  the  sentence  commuted  to  impris- 
onment for  life  in  the  state  prison,  which  the  governor 
and  council  refused.  Adams  remarked  that  they  would 
have  to  postpone  his  execution.  That  afternoon  Adams 
came  so  near  committing  suicide,  that  the  governor  and 
council  had  to  postpone  execution. 

Adams  insisted  that  he  would  not  have  a  clergyman  at 
the  execution,  but  the  sheriff  insisted  that  it  was  his,  the 
sheriff's  duty  to  provide  one.  While  the  clergyman  was 
praying,  Adams  was  swearing  at  him,  until  the  rope  cut 
off  the  profanity. 

Adams  was  a  low,  tramp  thief,  with  just  enough  intel- 
ligence to  know  better. 


Case  of  Maeion  A.  Montgomery. 

Marion  Augustus  Montgomery  was  tried  in  the  Supreme 
Judicial  Court  at  J^orthampton  on  the  11th,  12th,  and 
13th  days  of  December,  1883,  for  murder  of  his  little  son, 
George  Clarence,  aged  five  years. 

Montgomery,  a  man  of  forty  years  of  age  had  married 


OF  A  LONG  LITE.  135 


fifteen  years  before  and  had  two  children,  a  little  girl  of 
seven  and  this  boy  of  five.  He  went  away  from  home  one 
winter  to  work  on  a  railroad.  When  he  returned  in  the 
spring  he  found  that  during  his  absence  his  wife  had 
taken  a  boarder. 

When  he  went  away  he  was  a  happy  man  and  his  fam- 
ily relations  were  pleasant.  When  he  returned  he  dis- 
covered that  his  wife's  feelings  and  relations  towards  him 
had  changed,  that  she  liked  the  other  man  better.  He 
tried  to  win  her  back  but  did  not  and  could  not  succeed. 

Finally  she  left  him,  taking  the  two  children,  and  went 
to  live  with  her  father.  She  sent  her  husband  a  letter, 
telling  that  on  such  a  day  she  was  going  to  a  western  state 
to  live.  Subsequently  he  went  to  that  state  looking  for 
her  and  the  children.  It  turned  out  that  she  did  not  go 
west,  but  remained  living  with  her  father. 

Montgomery,  after  earning  money  enough  to  pay  his 
fare  back  east,  came  home.  He  used  to  walk  nine  miles 
to  her  father's  house,  to  look  in  at  the  window  to  see 
his  children.  He  wrote  and  asked  her,  to  allow  him  to 
come  to  the  house  to  bring  Christmas  presents  to  the  chil- 
dren. She  wrote  an  answer  consenting.  He  took  a  sled 
to  the  boy,  a  present  for  the  girl,  and  a  present  for  his 
wife.  He  was  allowed  to  remain  at  her  father's  house 
over  night,  occupying  a  room  by  himself. 

In  the  morning,  in  an  interview  with  his  wife,  he  asked 
her,  "Are  you  ever  going  to  live  with  me  again"  ?  She  re- 
plied, "I^To".  "That  settles  it",  said  Montgomery,  and 
walked  into  the  room  where  the  little  son  was  playing  on 
the  sled,  shot  him  through  the  head,  killing  him  instantly, 
shot  the  little  girl  through  the  neck,  when  the  father-in-law 
grappled  with  Montgomery  and  prevented  further  blood- 
shed.    I  think  he  intended  killing  the  children,  the  wife, 


136  SOME  RECOLLECTIONS 

the  other  man,  and  himself,  but  for  the  interference  of 
the  father-in-law. 

The  defence  was  insanity.  Hon.  William  A.  Bassett 
made  one  of  the  best  and  most  sympathetic  arguments  I 
ever  heard  to  induce  a  jury  to  return  a  verdict  of  not 
guilty  by  reason  of  insanity.  He  would  call  attention  of 
the  jury  to  how  shamefully  the  wife  had  acted,  and  how 
Montgomery  had  walked  nine  miles  in  the  rain  simply  to 
look  through  the  window  to  see  the  children,  and  then  his 
refrain  would  be,  "And  all  this  he  did  and  suffered  for 
the  love  of  his  children". 

It  drew  tears  from  all  of  us.  I  sympathized  with  the 
prisoner,  but  felt  that  he  was  responsible  for  his  acts. 
The  little  girl  recovered  and  was  present  at  the  trial. 

The  jury  returned  a  verdict  of  guilty  of  murder  in  the 
second  degree,  and  Montgomery  was  sentenced  to  state 
prison  for  life.  He  was  pardoned  by  the  governor  and 
council,  July  18,  1893. 

Case  of  Samuel  F.  Besse. 

Samuel  F.  Besse  was  tried  at  Plymouth  in  May,  1886, 
for  the  murder  of  Richard  N.  Lawton,  before  Morton, 
Chief  Justice  and  Holmes,  Judge,  in  the  Supreme  Ju- 
dicial Court. 

Hosea  Kingman  and  J.  C.  Sullivan  were  for  the  pris- 
oner.   The  District  Attorney  assisted  me  in  the  trial. 

Lawton  drove  about  PljTuouth  County  and  purchased 
eggs  of  the  farmers.  While  driving  through  the  Ply- 
mouth woods  he  was  shot  and  killed.  Some  $30  was  taken 
from  him. 

Besse,  who  was  a  man  generally  without  money,  was 
found  to  be  spending  money  quite  freely.     It  was  found 


OF  A  LONG  LIFE.  137 


that  he  had  spent  just  about  the  amount  taken  from  Law- 
ton. 

This,  with  other  evidence  was  sufficient  to  cause  his 
conviction  of  murder  in  the  first  degree.  His  case  was 
taken  before  the  full  court  on  a  question  of  law.  (See 
Commonwealth  vs.  Besse,  143  Mass.  R.  80.)  The  Court 
sustained  the  verdict  and  Besse  was  sentenced  and  sub- 
sequently executed  at  Plymouth  jail. 


Case  of  James  E.  IN'owlin. 

George  R.  Codman,  a  milkman,  hired  James  E.  Nowlin, 
a  boy  of  seventeen,  to  assist  him  in  his  business. 

January  4,  1887,  it  was  ascertained  that  Codman  had 
been  murdered  in  the  early  morning,  young  Kowlin  spring- 
ing upon  him  unawares  and  nearly  severing  the  head  from 
the  body  with  a  large  knife.  ISTowlin  then  took  some  $22 
from  the  body,  cutting  off  the  legs  and  arms  from  the 
trunk;  took  an  old  pung  sleigh,  and  distributed  the  body 
in  the  snow  in  different  parts  of  the  neighborhood. 

Nowlin  was  arrested,  indicted,  and  tried  June  21  and 
22,  1887,  before  Field  and  William  Allen,  Justices  of  the 
Supreme  Judicial  Court,  at  East  Cambridge.  Henry  E. 
Tales  and  Charles  C.  Mellen  represented  the  prisoner,  and 
District  Attorney  Stevens  appeared  with  me  for  the  Com- 
monwealth. The  case  was  clearly  proven.  The  defence 
was  insanity. 

The  boy  ]^owlin,  only  about  18  years  of  age,  had  not 
been  well  brought  up;  his  father  and  mother  were  dis- 
reputable, and  his  brother  was  under  arrest  for  a  crime. 

At  the  trial,  Nowlin's  mother  testified  for  the  son  that 
from  earliest  infancy  up  to  the  time  of  the  murder,  James 
had  shown  signs  of  insanity;  that  he  had  proposed  and 


138  SOME  EECOLLECTIOlSrS 

perpetrated  the  most  unnatural  acts ;  that  he  had  never 
acted  like  a  natural,  well  born  child,  etc.,  etc. 

A  reputable  physician  was  sitting  in  the  court  room, 
whom  it  was  reported  she  had  consulted  on  the  subject  of 
her  son's  sanitv. 

In  cross-examination  she  was  asked: 

Attorney  General.  After  your  son  was  indicted  for  this 
murder,  did  you  not  employ  Dr.  A.  B.,  now  sitting  here  in 
court,  to  examine  your  son,  to  ascertain  if  he  was  insane, 
and  did  he  not  examine  your  son  at  the  jail  ? 

Mrs.  Nowlin.     Yes. 

Attorney  General.  And  did  not  the  doctor  ask  you  to 
tell  him  all  and  every  instance  when  you  had  noticed  any- 
thing unusual  or  peculiar  in  him  from  his  childhood  to  the 
present  time. 

Mrs.  ISTowlin.     Yes;  he  did. 

Attorney  General.  ISTow,  Mrs.  N'owlin,  did  you  not  tell 
him,  that  you  had  never  noticed  any  thing  unusual  or 
peculiar  in  your  son  ? 

Mrs.  ISTowlin.  Looking  at  the  physician  (supposing  he 
liad  told  the  Attorney  General  the  facts).    Yes;  I  did. 

Attorney  General.  Mrs.  ISTowlin,  you  did  not  then  tell 
the  physician  one  single  one  of  these  peculiar  and  un- 
natural acts  which  you  have  testified  to  here  today,  did 
jou? 

Mrs.  ISTowlin  (looking  at  the  physician),  answered: 
ISTo ;  I  did  not ;  and  then  fainted  and  had  to  be  carried  out 
of  the  court  room. 

Every  one  in  the  court  house  sympathized  deeply  with 
Mrs.  N"owlin;  but  her  answers  convinced  every  one  that 
her  testimony  concerning  the  peculiar  and  unnatural  acts 
of  her  son  was  not  true.  This  practically  ended  the  de- 
fence of  insanity. 


OF  A  LONG  LIFE.  139 


It  is  just  to  the  physician  to  say  that  he  had  not  disclosed 
a  word  of  what  had  occurred  between  him  and  Mrs. 
Kowlin. 

Knowing  that  the  physician  was  an  honest  man,  and 
believing  that  that  conversation  would  be  likely  to  take 
place,  I  guessed  the  fact.  If  she  had  answered  otherwise, 
the  government  would  have  called  the  physician  to  the 
witness  stand.  She  believing  this,  answered  truthfully  con- 
cerning her  conversation  with  the  physician. 

N^owlin  was  convicted  of  murder  in  the  first  degree,  and 
sentenced  to  be  executed  January  20th,  1888.  On  account 
of  the  youth  of  the  prisoner,  and  considering  the  poor  op- 
portunity he  had  had  in  birth  and  bringing  up,  I  was  in 
hopes  that  the  Governor  and  Council  would  commute  the 
sentence  to  imprisonment  for  life. 

In  the  mean  time  a  brother  had  been  arrested  for  a 
burglary,  and  the  disreputable  character  of  the  whole  fam- 
ily had  been  made  known. 

The  Governor  and  Council  finally  refused  to  commute 
the  sentence  and  ITowlin  was  executed.  He  showed  great 
consideration  and  coolness  and  courage  before  and  at  his 
execution. 

He  saw  that  the  sheriff  felt  great  sympathy  for  him, 
and  would  gladly  avoid  the  carrying  out  of  the  sentence 
upon  one  so  young.  He  said  to  the  sheriff.  Do  not  worry 
about  it  Mr.  Sheriff,  I  shall  give  you  no  trouble.  I  am  not 
afraid  to  die.  Send  for  mother  to  come  and  see  me  a  day 
or  two  before  the  execution,  and  after  her  crying  is  over, 
you  will  not  have  a  whimper  from  me. 

True  to  his  word,  he  walked  to  the  scaffold  with  a  steady 
step,  helped  the  officers  in  their  unpleasant  duties,  and 
passed  unflinchingly  to  the  great  majority. 


140  SOME  EECOLLECTIONS 

Case  of  Saeah  J.  Robinsoist. 

She  was  indicted  for  the  murder  of  her  son  by  poison. 

District  Attorney  Stevens  and  I  prepared  the  case  for 
trial,  but  I  was  appointed  to  the  bench,  before  it  was 
reached,  and  the  case  was  tried  by  my  successor,  Attorney 
General  Waterman,  with  the  assistance  of  the  District  At- 
torney. She  was  convicted  of  murder  in  the  first  degree^ 
and  sentenced  to  be  hung.  Because  she  was  a  woman,  the 
sentence  was  commuted  to  imprisonment  for  life.  She 
died  a  few  years  since  while  in  prison. 

Mrs.  Robinson  was  at  the  time  of  her  trial  a  good  look- 
ing and  well  appearing  woman,  of  much  intelligence.  It 
was  an  interesting  case  and  she  a  person  to  study.  She 
had  been  married  many  years  and  had  had  a  number  of 
children.  Her  husband  and  several  children  had  died  be- 
fore she  was  suspected  of  murder.  We  became  satisfied 
that  her  husband  and  several  others,  including  her  chil- 
dren, some  five  or  six  persons  in  all,  had  been  poisoned 
by  her.  Some  to  obtain  life  insurance,  others  for  other 
causes. 

She  would  hire  a  house,  obtain  furniture  on  a  lease  or 
the  instalment  plan,  then  mortgage  it  under  different 
names,  obtaining  money  on  each  mortgage.  She  was  in- 
dicted jointly  with  a  Dr.  Beers  and  a  Mr.  Smith.  As. 
it  appeared  that  they  each  had  been  much  at  her  house, 
without  any  good  cause,  the  grand  jury  believed  that  they 
were  parties  to  the  murder. 

Our  investigation  showed  that  both  men  were  much 
fascinated  with  Mrs.  Robinson  and  were  at  her  house 
often,  but  never  at  the  same  time.  Smith  appeared  to  be 
a  very  pious  man,  thinking  and  talking  religion  and  trying 
to  make  converts  all  the  time. 

We,  the  District  Attorney  and  myself,  became  fully  sat- 


OF   A  LONG  LIFE.  14:1 


isfied  that  neither  Dr.  Beers  nor  Mr.  Smith  had  anything 
to  do  with  the  murder,  so  they  were  released  from  jail  on 
bail. 

Subsequently  her  counsel  called  upon  me  with  an  ur- 
gent request  from  her  that  I  come  to  the  jail  to  see  her.  I 
at  first  declined,  thinking  it  would  be  unwise  to  comply 
with  her  request.  But  at  last  I  consented  with  a  distinct 
understanding,  that  during  the  trial  nothing  should  be 
said  about  the  interview. 

Taking  her  lawyers,  the  sheriff,  an  officer  of  the  court 
with  us,  we  had  an  interview.  I  stated  to  Mrs.  Robinson 
that  she  was  to  be  free  to  talk,  as  it  was  agreed  between 
her  counsel  and  myself  that  nothing  she  said  could  ever 
be  used  against  her,  and  that  nothing  said  by  any  one  at 
this  interview  could  be  used  or  referred  to  at  her  trial. 
She  soon  made  known  her  purpose  in  asking  for  the  inter- 
view. As  we  had  discharged  Dr.  Beers  and  Mr.  Smith 
because  they  were  not  guilty,  she  wanted  to  convince  us 
that  she  was  not  guilty.  So  she  talked  and  talked. 
We  listened.  She  invited  me  to  ask  questions,  to  cross  ex- 
amine her,  but  I  said  "No".  Finally  I  said,  "Well,  Mrs. 
Robinson,  I  will  ask  you  one  question.  What  were  your 
relations  with  Dr.  Beers"  ?  "What  do  you  mean"  ?  said 
Mrs.  Robinson.    "I  think  you  know  what  I  mean",  said  I. 

"Oh",  said  she,  "they  were  always  proper,  most  proper. 
He  never  said  an  improper  word  or  did  an  improper  thing 
to  me". 

"Well",  said  I,  "it  is  of  no  consequence  to  the  charge 
against  you,  but  I  asked  simply  as  a  test  of  your  truthful- 
ness ;  but  I  ought  in  frankness  to  tell  you,  I  do  not  believe 
what  you  say.  Our  evidence  shows  that  he  was  much  in- 
fatuated with  you,  that  he  was  with  you  for  years,  once 
or  twice  a  week,  with  no  business,  only  to  be  with  you 
alone". 


142  SOME  RECOLLECTIONS 

In  a  few  days  she  sent  for  me  again,  she  must  see  me. 
That  it  was  a  matter  of  great  importance  that  she  should 
see  me.  I  saw  her  again  in  the  presence  of  the  same  per- 
sons, when  she  said :  "I  told  you  a  great  lie  last  week.  Dr. 
Beers  seduced  me  when  I  was  a  girl  of  eighteen,  and  he 
has  been  intimate  with  me  ever  since,  until  my  arrest.  I 
sent  for  you  to  tell  you  the  truth  and  not  have  that  lie  on 
my  conscience  any  longer".  At  her  trial  some  months 
later,  she  testified  that  her  relations  with  Dr.  Beers  had 
always  been  proper. 

I  have  never  been  able  to  make  up  my  mind  concerning 
Smith's  relations  with  her.  He  seemed  to  be  a  good, 
Christian  man,  but  his  fascination  seemed  to  be  great. 


Case  of  Chakles  F.  Feeeman. 

Charles  F.  Freeman  and  his  wife  lived  in  Pocasset  on 
Cape  Cod.  They  were  good  citizens.  They  had  two 
young  daughters.  Some  time  prior  to  May  1,  1879,  there 
was  a  religious  revival  in  that  place.  Freeman  and  his 
wife  became  much  interested,  and,  as  time  went  on,  much 
excited.  They  commenced  to  give  up  one  pleasure  after 
another  and  to  practice  great  self-denial. 

They  believed  that  they  had  been  selfish  and  that  they 
had  not  made  sacrifices  enough  to  the  Lord.  Going  home 
one  evening  from  an  exciting  revival  meeting,  they  saw 
lightning  in  the  sky,  what  we  sometimes  call  heat  light- 
ning, and  this  they  interpreted  as  a  sign  to  them  to  make  a 
greater  sacrifice  to  the  Lord.  They  had  not  much  in 
worldly  goods,  but  they  had  read  their  Bible. 

They  had  read  the  story  of  Abraham,  who  had  made  an 
offering  of  his  only  son  Isaac.  How  he  stretched  forth 
his  hand  and  took  the  knife  to  slay  his  son,  when  the  angel 


OF  A  LONG  LIFE.  143 


of  the  Lord  called  unto  him  out  of  Heaven,  and  said, 
"Abraham,  Abraham,  lay  not  thine  hand  upon  the  lad". 
Remembering  all  this,  they  thought  of  their  two  little 
daughters,  who  were  very  dear  to  them,  so  they  discussed 
the  matter,  whether  or  not  this  sign  in  the  Heaven,  which 
they  had  seen,  meant  that  they  should  make  an  offering 
of  one  of  them.  But  which  should  it  be  ?  They  loved 
the  younger,  little  Edith,  the  better,  so  they  must  give  her 
up,  as  that  would  be  the  greater  sacrifice. 

On  reaching  home,  they  prayed  over  it  and  went  to  bed, 
but  they  could  not  sleep.  Here  was  a  clear  sign  out  of 
Heaven,  a  demand  from  God  Almighty,  to  make  an  offer- 
ing of  this  best  beloved  child. 

The  father  got  up,  went  into  the  next  room,  where  the 
innocent  children  were  sleeping,  took  the  eldest  daughter 
in  his  arms,  without  waking  her,  carried  and  put  her  in 
the  bed  with  the  mother.  Then  he  went  into  the  kitchen, 
secured  the  butcher  knife,  and  returned  to  the  bed  room 
where  little  Edith  was  sleeping  soundly. 

He  turned  down  the  bed  clothes  and  opened  the  night 
dress  about  and  above  the  heart.  He  raised  the  knife  high 
in  the  air,  and  brought  it  down  slowly,  near  the  child's 
body,  hoping  to  hear  the  voice  of  the  angel  of  the  Lord, 
crying,  "Hold" ;  but  no  voice  came.  He  said  to  himself, 
"Am  I  unfaithful  to  my  God;  am  I  unwilling  to  obey 
his  commands".  He  raised  the  knife  again,  and  hearing 
no  voice  to  stay  his  hand,  he  plunged  the  knife  into  the 
heart  of  his  daughter,  killing  her  instantly.  She  and  the 
bed  clothes  were  covered  with  blood.  He  at  once  got  into 
the  bed,  took  the  child  in  his  arms  and  remained  there 
until  morning.  He  then  dressed  himself,  went  to  the 
neighbors,  telling  them  what  he  had  done,  and  inviting 
them  to  come  on  the  morning  of  the  third  day  and  see  his 
daughter  rise  and  ascend  into  Heaven.     The  neighbors. 


144  SOME  KECOLLECTIONS 

who  had  not  taken  the  revival  so  seriously  as  he  had, 
called  a  constable,  and  Freeman  was  taken  to  jail  as  a 
murderer,  to  his  great  surprise. 

Subsequently  Freeman  was  indicted  for  murder, 
brought  before  the  court,  and  it  appearing  that  he  was 
still  insane,  it  was  ordered  that  he  be  committed  to  the 
Danvers  Insane  Hospital,  until  the  further  order  of  the 
Court. 

After  I  became  Attorney  General  in  1883,  the  superin- 
tendent of  the  hospital  informed  me  that  Freeman  had 
become  sane,  and  had  reasoned  himself  out  of  his  insani- 
ty; and  the  superintendent  was  of  the  opinion  that  Free- 
man would  never  be  insane  again. 

The  superintendent  would  introduce  Freeman  to  an 
inmate  who  believed  he  was  Jesus  Christ.  Then  he 
would  say,  "I^ow  Freeman,  you  know  that  man  is  not 
Jesus  Christ.  He  is  crazy  just  as  you  were  when  you 
killed  your  child".  Another  inmate  would  claim  to  be 
God,  and  the  superintendent  would  say  to  Freeman, 
"That  man  thinks  he  is  God,  but  you  and  I  know  that  he 
is  not,  he  is  insane  just  as  you  were  when  you  believed  the 
Almighty  had  commanded  you  to  kill  your  child". 

After  some  months.  Freeman  became  sane,  and  then 
realized  for  the  first  time  his  great  loss  in  little  Edith. 
He  soured  on  religion.  It  had  caused  him  to  kill  his  child. 
He  became  an  infidel  and  has  remained  such  ever  since. 

Freeman  was  tried  December  5,  1883,  before  the  Su- 
preme Judicial  Court  at  Barnstable,  Chief  Justice  Mor- 
ton and  Justice  Field  presiding.  E.  J.  Sherman,  Attor- 
ney General,  and  H.  M.  Knowlton,  District  Attorney, 
representing  the  Commonwealth,  and  A.  W.  Boardman 
and  Charles  A.  Taber,  representing  the  prisoner. 

The  government  proved  the  killing  as  before   stated, 


OF  A  LONG  LIFE.  145 


then  put  on  two  expert  physicians,  who  expressed  the 
opinion  that  Freeman  was  insane  at  the  time. 

The  defence  introduced  two  experts  who  testified  the 
same  way.  The  attorney  for  the  defence  argued  that  the 
jury  should  return  a  verdict  of  not  guilty  by  reason  of 
insanity.     In  my  argument  I  made  the  same  claim. 

The  Chief  Justice  in  behalf  of  his  associate  and  him- 
self advised  the  jury  to  return  such  a  verdict,  but  it  took 
the  jury  four  hours  to  acquit,  by  reason  of  insanity. 

Freeman  was  committed  by  order  of  the  Court  to  the 
•same  hospital  for  life.  Some  four  years  afterwards,  the 
Governor  and  Council,  becoming  satisfied  that  Freeman 
would  not  become  insane  again,  ordered  his  discharge. 

He  and  his  wife  and  daughter  then  went  west  and  when 
last  heard  from  they  were  well  and  leading  the  lives  of 
:good  citizens,  but  confirmed  infidels. 

Case  of  the  Housatonic  Raileoad  Company. 

While  I  was  Attorney  General,  Hon.  Thomas  Russell, 
XDhairman  of  the  Board  of  Railroad  Commissioners,  for- 
merly a  Justice  of  the  Superior  Court,  Collector  of  the 
Port  of  Boston,  Minister  to  Venezuela,  etc.,  came  to  me 
to  prosecute  the  Housatonic  Railroad  Company  for  vio- 
lation of  the  Acts  of  1885,  Chapter  338.  I  directed 
Andrew  J.  Waterman,  District  Attorney  of  the  Western 
District  to  commence  a  suit  in  behalf  of  the  Common- 
wealth against  said  company.  It  was  afterwards  tried  in 
the  Superior  Court,  and  judgment  rendered  for  the  plain- 
tiff. It  was  carried  by  exceptions  to  the  Supreme  Judi- 
cial Court.  I  commenced  to  study  the  case  and  prepare 
a  brief  for  argument  in  that  court. 

The  statute  had  been  passed  upon  the  recommendation 
of  the  Railroad  Commissioners,  and  the  bill  I  think  was 


146  SOME  EECOLLECTIONS 

drawn  by  Judge  Russell,  its  chairman.  I  knew  that  the 
defence  was  to  be  that  the  statute  was  unconstitutional. 
After  a  careful  examination  of  the  decisions  of  the  Su- 
preme Court  of  the  United  States,  I  became  satisfied  that 
under  those  decisions  the  case  could  not  be  maintained. 
I  finally  told  Judge  Russell  to  what  conclusion  I  had 
come.  He  was  very  much  in  earnest,  as  it  was  his  pet 
statute  and  his  pet  case.  We  argued  the  case  for  some 
days  with  a  good  deal  of  earnestness  on  both  sides.  I 
finally  said  to  Judge  Russell  this  discussion  has  been  and 
will  be  of  great  use  to  me  in  preparing  my  brief  and 
arguing  the  case  before  the  Supreme  Court. 

After  some  days,  he  came  to  me  and  said,  "I  have  not 
been  able  to  convince  you,  that  we  have  a  case  that  can 
be  maintained  in  law,  and  I  do  not  believe  that  you  can 
argue  it  as  well  as  you  could  if  you  believed  in  it.  Do 
you"  ?  I  replied,  "I  do  not  know,  but  certainly  I  shall 
give  the  Court  all  the  arguments  and  cite  all  the  authori- 
ties which  you  have  given  me,  and  do  the  best  I  can  to 
maintain  the  suit".  I  saw  he  was  unhappy  and  dissatis- 
fied on  accoimt  of  the  opinion  which  I  had  expressed,  to 
wit,  that  the  action  could  not  be  maintained. 

He  said  further,  "This  is  my  statute  and  practically 
my  case,  and  if  it  fails,  the  laugh  will  be  upon  me,  and  it 
will  injure  my  standing  as  a  lawyer  and  as  Chairman  of 
the  Board.  Are  you  willing  that  I  should  see  the  Governor 
and  Council  and  obtain  permission  to  employ  other 
counsel"  ?  "Certainly",  I  replied.  Soon  after,  on  the 
same  day,  the  Governor  sent  for  me.  He  told  me  of  Judge 
Russell's  request,  and  that  the  Judge  wanted  to  employ 
George  F.  Hoar.  He  also  asked  me  two  questions: — one, 
had  I  any  objections  to  other  counsel  being  employed, 
and  two,  did  I  think  Mr.  Hoar  was  the  best  man  to  em- 
ploy.    I  answered  the  first  question  in  the  negative,  and 


OF  A  LONG  LIFE.  147 


as  to  the  second  question,  I  said,  "George  F.  Hoar  is  an 
able  lawyer,  and  if  he  will  give  sufficient  time  to  the 
study  of  the  question  involved,  he  will  ably  represent  the 
plaintiff.  But  what  I  fear  is,  that  being  a  United  States 
Senator,  overcrowded  with  work,  that  he  cannot  and  will 
not  make  himself  thoroughly  familiar  with  all  the  de- 
cisions of  the  Supreme  Court  of  the  United  States  bear- 
ing upon  this  subject". 

Mr.  Hoar  was  employed  and  argued  the  case  for  the 
plaintiff.  Justice  Dewey  of  Great  Barrington,  after- 
wards Justice  of  the  Superior  Court,  argued  the  case  for 
the  defendant.  The  Supreme  Court  decided  the  case  for 
the  defendant. 

(See  opinion  by  Chief  Justice  Morton  in  Common- 
wealth vs.  Housatonic  Kailroad  Co.,  143  Mass.  Eeports, 
264.) 

The  Chief  Justice  subsequently  told  me,  that  Dewey 
made  a  very  able  argument,  but  that  Mr.  Hoar  had  not 
familiarized  himself  with  the  cases  and  could  not  answer 
the  arguments  of  Mr.  Dewey. 

Judge  Dewey  afterwards  told  me,  that  he  bought  a 
full  set  of  United  States  Eeports,  and  devoted  several 
months  to  the  study  of  the  cases  bearing  upon  the  subject 
so  that  he  could  quote  them  from  memory.  He  was  ap- 
pointed by  Governor  Eobinson  a  Justice  of  the  Superior 
Court,  influenced  somewhat,  on  account  of  the  ability 
shown  in  this  case. 

Judge  Eussell  was  greatly  disappointed  at  the  result, 
but  said  good  naturedly  to  me,  "I  might  as  well  have 
taken  your  opinion  in  the  first  place.  I  was  much  dis- 
turbed and  aggrieved  at  your  opinion,  at  the  time,  but  it 
seems  that  both  our  Supreme  Court  and  the  Supreme 
Court  of  the  United  States  have  concurred  in  that 
opinion". 


CHAPTER  IX. 


AS  JUDGE  OF  THE  SUPERIOR  COURT. 


GOVEENOE  OlIVEE  AmES. 

Oliver  Ames  was  elected  Lieutenant  Governor  in  1882 
at  the  same  time  that  I  was  elected  Attorney  General. 

I  did  not  know  him  personally  before  that  campaign. 
Prom  that  time  on  until  his  death,  in  1895,  our  relation- 
ship became  more  friendly  and  intimate. 

While  building  his  new  house  on  the  comer  of  Com- 
monwealth and  Massachusetts  Avenues  I  went  often,  at 
his  request,  to  observe  its  progress.  After  it  was  com- 
pleted and  his  family  commenced  to  occupy  it,  I  spent 
many  nights  there.  He  called  one  of  the  rooms  "Sher- 
man's room".  I  had  great  regard  for  him, — he  was  a 
lovable  man,  always  carrying  about  with  him  a  great 
amount  of  sunshine.  This  feeling  seemed  to  be  recipro- 
cated. 


Appointed  Judge. 

He  was  elected  Governor  in  the  Fall  of  1886,  and  in- 
augurated January,  1887. 

September  7th,  1887,  Chief  Justice  Morton  of  the  Su- 
preme Judicial  Court  sent  for  me,  and  handed  me  the  res- 
ignation of  Mr.  Justice  Gardner  of  that  court,  saying  I 


OF  A  LONG  LIFE.  149 


wish  you  would  place  this  resignation  in  the  hands  of  the 
Governor  as  soon  as  possible,  and  tell  him  that  we  need  a 
new  Justice  as  soon  as  he  can  conveniently  appoint  one. 

The  Governor  and  Council  were  at  Springfield  and  were 
coming  to  Boston  that  afternoon.  I  went  to  Worcester^ 
boarded  the  train  which  was  bringing  the  Governor  and 
Council  to  Boston,  and  presented  the  resignation  with  the 
request  of  the  Chief  Justice  to  the  Governor. 

The  Governor  stated  that  upon  arriving  in  Boston  the 
Governor  and  Council  would  hold  a  meeting  and  he  would 
nominate  a  Justice.  "Who  do  you  think  I  am  going  to 
nominate"  ?  said  the  Governor.  "I  cannot  guess",  was  the 
reply.  "I  am  going  to  nominate  you",  said  the  Governor. 
"I  would  not  accept  it",  said  I,  "for  two  reasons,  first,  I 
am  not  qualified  for  the  position,  and  secondly,  I  would 
not  take  it,  if  I  was".  He  then  asked  me  if  he  promoted 
Mr.  Justice  Knowlton  (now  Chief  Justice  Knowlton)  of 
the  Superior  Court,  would  I  accept  the  position  vacated 
by  his  appointment  ?  I  replied  that  I  would  like  to  con- 
sider that  question. 

Mr.  Justice  Knowlton  was  nominated  on  that  day  and 
confirmed  on  the  14th.  I  was  nominated  to  the  vacancy 
on  the  14th  and  confirmed  on  the  21st. 

The  following  correspondence  took  place: 


Commonwealth  of  Massachusetts. 

Executive  Department, 

Boston,  Sept.  8,  1887. 
Hon.  E.  J.  Sherman^ 

Attorney  General. 
Dear  Sir:    I  am  a  believer  in  civil  service  reform  and 
promotion  for  merit.    As  you  are  aware  I  have  nominated 
Mr.  Justice  Knowlton  of  the  Superior  Court  of  this  Com- 


150  SOME  EECOLLECTIONS 


monwealth  to  the  vacancy  caused  by  the  resignation  of 
Mr.  Justice  Gardner  of  the  Supreme  Judicial  Court. 

For  five  years  you  have  served  the  Commonwealth 
faithfully  and  satisfactorily  as  Attorney  General,  and  to 
you,  if  any  one,  should  come  promotion.  I  therefore 
tender  you,  if  you  will  accept  it,  when  the  time  comes, 
for  its  formal  offer,  a  position  upon  the  bench  of  the  Su- 
perior Court  when  it  shall  have  been  vacated. 

Hoping  that  you  will  find  it  agreeable  to  do  this,  and 
that  in  this  your  valuable  knowledge  of  the  law  and  your 
eminent  ability  as  a  jurist  will  be  permanently  secured  for 
the  use  and  benefit  of  your  fellow  citizens, 

I  am  yours  most  sincerely, 

Oliver  Ames. 


Attoeney    General's    Department, 

Lwealth  Building, 
Boston,  Sept.  14,  1887. 


Commonwealth  Building, 


To  His  Excellency, 

Oliver  Ames, 

Governor. 

Dear  Sir:  I  have  received  your  letter  of  the  8th  inst. 
tending  me  the  position  of  Justice  of  the  Superior  Court 
in  place  of  Mr.  Justice  Knowlton  promoted. 

Were  I  to  serve  out  my  present  term  as  Attorney 
General,  I  should  have  then  served  the  Commonwealth 
continuously  as  District  Attorney  and  Attorney  General 
for  a  period  of  over  nineteen  years. 

The  people  have  apparently  approved  my  administra- 
tion of  those  offices  by  repeated  elections,  and  it  is  exceed- 
ingly gratifying  to  me  to  know  that  your  Excellency 
believes  me  worthy  of  further  service.  I  have  decided  to 
accept  your  proffer,  and,  if  I  receive  the  appointment,  it 
will  be  my  endeavor  to  serve  the  State  to  the  best  of  my 
ability.  Thanking  Your  Excellency  for  the  kind  words 
of  your  letter,  I  remain, 

Yours  most  respectfully 

Edgar  J.  Sherman. 


OF   A   LONG  LIFE.  151 


Attorney  General's  Department, 

Commonwealth  Building, 

Boston,  Oct.  1,  1887. 
To  His  Excellency, 

Oliver  Ames, 

Governor. 

Dear  Sir:  Having  accepted  your  appointment  as  an 
Associate  Justice  of  the  Superior  Court,  I  hereby  resign 
the  office  of  Attorney  General  of  the  Commonwealth. 

Please  accept  my  sincere  thanks  for  your  uniform  kind- 
ness and  courtesy. 

Very  respectfully, 

Your  obedient  servant, 

Edgar  J.  Sherman. 

Commonwealth  of  Massachusetts, 
Executive  Department, 

Boston,  Oct.  1,  1887. 
Hon.  E.  J.  Sherman, 

My  Dear  Sir:  I  hereby  accept  your  resignation  of  the 
office  of  Attorney  General,  which  you  tender  this  day. 

With  a  feeling  of  satisfaction  that  the  Commonwealth 
is  still  to  have  the  benefit  of  your  valuable  services,  I  am 

Yours  sincerely, 

Oliver  Ames. 


Death  of  Governor  Ames. 

Oliver  Ames  held  the  office  of  Governor,  1887-8-9. 
Although  regarded  as  rich,  he  owed  a  large  amount  of 
money.  The  panic  of  1893  was  a  severe  trial  to  him,  and 
he  came  out  of  it  without  serious  loss,  but  with  impaired 
health.  At  his  request  I  wrote  his  will,  November  4, 
1889.     In  the  winter  of  1894-5  he  went  south,  but  re- 


152  SOME  RECOLLECTIOiN^S 

turned  home  in  April,  his  health  being  in  an  alarming 
condition.  He  telegraphed  to  me  at  Lawrence  on  Satur- 
day night,  to  come  and  see  him  at  once.  I  asked  if  Mon- 
day would  not  do.  He  replied  that  he  might  not  be  alive 
at  that  time.  I  came  at  once.  He  asked  me  to  make  a 
codicil  to  his  will,  and  I  was  named  as  one  of  the  executors 
and  trustees. 

The  Governor  lived  until  October  of  that  year  (1895). 

Since  his  death,  I  have  served  as  one  of  his  executors 
and  trustees. 


JuDiciAi.  Seevices. 

I  commenced  my  services  as  Justice  of  the  Superior 
Court  at  the  October  Criminal  Session  in  1887,  at  Law- 
rence.    It  was  to  me  an  exceedingly  pleasant  session. 

At  every  session  which  I  have  had  since,  there  has  been 
something,  or  some  case,  out  of  the  usual  run.  I  wish  now 
that  I  had  kept  a  diary  of  such  cases.  As  it  is  I  will  re- 
fer to  a  few  such  cases  as  I  recall  them. 


A  Bright  Criminal. 

While  holding  a  criminal  session  of  the  Superior  Court 
in  Lowell,  a  man  by  the  name  of  Moore  (I  think),  had 
pleaded  guilty  to  two  counts  or  two  indictments  for  steal- 
ing silver  from  two  different  houses  in  Somerville. 

He  was  asked  by  the  clerk  of  court,  if  he  desired  to  say 
anything  to  the  Court  about  his  sentence.  He  replied 
that  he  had  sent  a  letter  to  the  Judge.  Thereupon,  I  was- 
handed  a  letter  from  the  prisoner,  which  I  examined.  It 
was  a  well-written  letter  pleading  for  leniency  of  sentence. 


OF  A  LONG  LIFE.  153 


Two  words  were  misspelled,  but  I  could  not  tell  whether 
the  poor  spelling  was  intentional  or  not. 

I  commenced  to  ask  him  questions  concerning  his  past 
life,  occupations,  etc.  He  exhibited  unusual  brightness 
and  cunning.  As  I  became  interested  in  him,  the  sheriff 
stood  up  and  said,  "I  think  I  ought  to  tell  your  Honor 
that  while  this  prisoner  was  in  jail  at  East  Cambridge, 
he  made  some  very  fine  handcuff  keys  out  of  an  old  case 
knife". 

I  said  to  Moore,  "What  do  you  say  to  that"  ?  He  re- 
plied, "If  they  found  any  handcuff  keys  in  my  cell,  I  did 
not  make  them".  I  said  to  the  sheriff,  "Please  have  your 
officer  at  the  jail  come  here  in  the  morning".  I  wanted 
a  little  time  to  look  the  prisoner  over,  as  I  suspected  that 
he  was  a  "professional". 

The  next  morning,  an  officer  from  East  Cambridge  took 
the  witnesss  stand  and  testified  that  on  Sunday  morning, 
while  the  prisoner  was  in  jail,  he  heard  filing  on  one  of 
the  corridors.  Creeping  up  near  the  cell,  he  saw  the 
prisoner  filing  something.  Upon  going  into  the  cell,  he 
could  not  find  any  file,  but  he  found  an  old  case  knife  and 
the  keys  which  were  produced  in  court.  The  keys  showed 
excellent  workmanship.  The  prisoner  cross-examined  the 
witness,  showing  ability  in  that  direction  as  well  as  fa- 
miliarity vnth.  courts. 

I  became  satisfied  that  the  prisoner  was  a  professional 
burglar,  and  an  Englishman.  If  I  had  sentenced  without 
finding  out  anything  about  him,  I  should  probably  have 
given  two  or  three  years  in  the  house  of  correction;  but 
believing  him  to  be  a  "professional"  and  a  dangerous  man 
to  be  at  large,  I  sentenced  him  to  seven  years  in  the  state 
prison. 

I  told  the  sheriff,  when  he  took  the  prisoner  to  the  state 
prison,  to  present  my  compliments  to  the  warden  and  tell 


154  SOME  KECOLLECTIONS 

him  that  I  did  not  believe  he  would  be  able  to  keep  the 
prisoner  a  great  while,  as  in  my  opinion  he  was  a  profes- 
sional burglar  and  a  fine  mechanic,  and  would  be  likely  to 
break  out  of  prison. 

When  the  sheriff  returned,  he  informed  me  that  he  had 
delivered  the  warden  my  message,  that  the  warden  said, 
"Tell  the  judge  not  to  worry;  I  think  I  can  keep  him". 

The  case  passed  from  my  mind  until  some  six  months- 
afterwards,  when  the  newspapers  announced  that  Moore 
had  escaped  from  the  prison.  Some  time  afterwards,  I 
met  the  warden  at  the  Loyal  Legion.  He  said,  smiling, 
"The  joke  is  on  me.  Kow  do  not  laugh,  but  let  me  tell 
you  how  he  got  away.  I  put  him  in  a  cell  which  was  in 
sight  of  the  officer's  position  all  night.  He  first  made  keys 
to  his  cell  doors,  to  the  door  into  the  kitchen,  and  from  the 
kitchen  to  the  yard.  That  was  a  comparatively  easy  mat- 
ter for  a  mechanic  like  Moore ;  but  the  trouble  for  him 
was  to  overcome  the  bar,  which  drops  down  over  the  arm& 
which  come  out  from  the  door  of  each  cell. 

The  prisoners  come  in  from  the  shops  and  are  marched 
in  single  file,  in  charge  of  an  officer,  enter  their  cells 
on  one  side  of  the  corridor,  and  then  the  cell  doors  are 
closed  and  locked.  If  they  are  all  in,  the  lever,  or  over- 
head bar,  is  let  down,  fastening  all  the  cells  on  that  side. 
If  one  prisoner  on  that  side  of  the  corridor  was  not  in, 
then  it  was  the  duty  of  the  officer  to  remain  there  looking 
down  the  front  of  the  cells,  until  the  absent  prisoner  came, 
and  then  lock  them  all  in  and  put  down  the  bar. 

Moore  managed  to  have  some  friend  late.  After  being 
locked  in  himself,  he  took  his  false  key,  unlocked  the  door 
of  his  cell,  went  out  and  relocked  it,  and  as  the  officer 
walked  by  the  end  of  the  corridor,  he  went  around  the 
other  end,  so  that  when  the  absent  prisoner  came,  all  were 
locked  in  and  secure,  except  Moore,  who  played  hide  and 


OF  A  LONG  LIFE.  155 


seek  with  the  officer,  Moore  being  out  of  his  cell,  had  all 
night  to  get  away,  and  he  improved  it". 

"But",  said  the  warden,  "I  shall  get  him  again".  I 
replied  that  I  did  not  think  so,  as  he  was  an  Englishman 
and  had  gone  to  England. 

This  was  ten  years  or  more  ago,  and  the  prisoner  has 
not  yet  been  captured. 

Sentence  of  John  C.  Sanbokn,  Superintendent  of 
THE  Plymouth  Division  of  the  IsT.  Y.,  K.  H.  &.  H.  R.R. 

While  holding  court  in  Plymouth  County,  Sanborn,  the 
superintendent  and  chief  of  the  railroad  police,  and  three 
section  foremen,  were  brought  before  the  court  for  sen- 
tence upon  a  charge  of  having  created  a  riot  in  the  town  of 
Abington.  They  had  all  previously  pleaded  guilty,  or 
rather  that  they  would  not  contend  with  the  Common- 
wealth. 

The  District  Attorney  moved  for  sentence.  Their 
counsel,  the  counsel  of  the  railroad,  asked  to  have 
the  case  put  on  probation,  and  if  this  could  not  be  done, 
that  a  fine  be  imposed. 

The  facts  appeared  as  follows: — 

An  electric  railroad  had  built  its  tracks  up  to  the  tracks 
of  the  !N^ew  York  and  ITew  Haven  Railroad  on  either  side 
and  proposed  to  cross  the  railroad  tracks  at  grade,  having 
previously  obtained  a  license  so  to  do  from  the  authorities. 

The  N^ew  York  and  'Ne'w  Haven  Railroad  Company  had 
filed  a  bill  in  the  Supreme  Judicial  Court,  asking  it  to 
restrain,  by  injunction,  the  electric  company  from  build- 
ing its  road  across  their  tracks.  After  a  hearing  before 
Mr.  Justice  Knowlton  of  that  court,  that  justice  ruled 
that  the  electric  company  had  a  right  to  so  cross,  and 


156  SOME   RECOLLECTIONS 

refused  the  injunction.  Thereupon,  the  electric  company 
attempted  to  construct  their  track,  calling  on  the  officers 
of  the  law  to  preserve  order.  The  said  superintendent  and 
chief  of  the  railroad  police  came  there  with  200  or  more 
Italian  laborers,  armed  with  pickaxes  and  shovels,  and 
created  a  riot  and  street  fight,  assaulting  many  persons, 
including  the  peace  officers,  causing  the  windows  of  the 
post-office  to  be  broken,  etc.,  etc.  Many  persons  were  in- 
jured during  the  riot 

Civil  actions  were  brought  against  the  ISTew  York  and 
New  Haven  Railroad  company  by  these  persons  injured. 
The  company  had  paid  out  many  thousand  dollars  and 
had  settled  with  all  persons  injured,  and  those  persons 
signed  a  petition  to  the  court  in  favor  of  leniency  towards 
the  accused.  The  District  Attorney  stated  that  he  felt  he 
had  performed  his  duty  by  making  the  Court  acquainted 
with  all  the  facts  and  moved  for  sentence,  leaving  the 
Court  to  determine  what  that  sentence  should  be. 

I  took  the  case  under  consideration.  Upon  the  coming 
in  of  the  court,  at  a  subsequent  day,  the  five  defendants 
stood  at  the  bar  to  receive  sentence. 

The  Court  stated  that  he  regarded  this  as  an  important 
matter  to  be  decided  as  affecting  the  proper  administra- 
tion of  the  criminal  law.  Here  was  a  clear  case  where  the 
superintendent  of  a  great  railroad  corporation  had  taken 
the  law  into  his  own  hands  and  created  a  riot,  to  prevent 
another  company  from  doing  something  which  a  judge 
of  a  Supreme  Court  had  just  decided  it  had  a  lawful 
right  to  do,  the  superintendent  calling  to  his  aid  several 
hundred  ignorant  Italian  laborers  and  directing  them  to 
go  with  their  weapons  and  commit  an  assault  on  the  peace 
officers  of  the  Commonwealth.  It  is  a  wonder  that  many 
persons  were  not  killed.  Such  a  case  should  not  be  put 
on  probation.     A  fine  would  be  paid  by  the  stockholders 


OF  A  LONG  LIFE.  157 


of  the  corporation  who  are  not  guilty.  The  sentence  of 
the  Court  was  that  the  superintendent  and  chief  of  police 
be  punished  by  imprisonment  in  the  house  of  correction, 
four  months  each;  that  the  three  section  foremen  be  pun- 
ished by  imprisonment  in  the  same  institution  two  months 
each. 

That  evening  President  Clark  of  the  railroad  came  from 
Hartford  in  his  private  car  to  Plymouth.  I  had  known 
Mr.  Clark  quite  intimately  for  some  time.  He  appealed 
to  me  to  help  secure  the  release  of  these  men.  He  said 
they  were  not  to  blame,  that  they  had  only  obeyed  the 
order  of  their  superior  officers.  I  declined  to  aid  him.  He 
asked  how  he  could  secure  their  release.  I  told  him  he  could 
apply  to  the  Governor  and  Council  for  a  pardon.  He  asked 
if  I  thought  he  could  obtain  a  pardon  for  them.  I  replied 
that  I  did  not  know;  a  great  railroad  corporation  could 
sometimes  "acomplish  wonders". 

Finally  he  said,  "Judge  what  would  you  do  if  in  my 
place".  I  replied,  "Well,  I  will  tell  you  what  I  think  I 
would  do.  I  would  go  to  the  jail  and  tell  these  men,  I 
have  got  you  into  trouble.  You  will  have  to  serve  your 
sentences;  while  you  are  here  your  pay  will  be  doubled". 

"If  these  men  serve  their  sentence,  sometime  in  the 
future,  when  you  have  a  strike  of  these  Italians  on  your 
road,  and  they  create  a  riot  and  destroy  your  property, 
you  will  be  in  condition  to  ask  the  Court  to  punish  them. 
But  if  these  educated  Americans  are  not  punished,  can 
you  expect  to  have  ignorant  Italians  punished  for  com- 
mitting a  like  offense"?  Mr.  Clark's  reply  was,  "Your 
advice  may  be  good,  but  I  cannot  follow  it,  I  must  get 
the  men  out  if  I  can". 

Subsequently  a  petition  was  presented  to  the  Governor 
and  Council  for  a  pardon.  After  a  long  hearing,  the  Coun- 
cil voted  by  a  majority  of  one  against  granting  it.     A 


158  SOME  EECOLLECTIONS 

new  petition  was  presented  after  the  sentences  of  the 
three  section  men  had  expired.  There  had  in  the  mean- 
time been  a  change  in  the  Council,  by  one  going  out  and 
one  coming  into  office.  This  time  the  Council  voted  in 
favor  of  granting  the  petition  by  a  majority  of  one.  The 
matter  was  then  heard  by  Governor  Greenhalge,  who  re- 
fused to  grant  the  pardon. 

There  has  been  a  feeling  among  some  of  our  citizens 
that  only  the  small  rogues  or  law  breakers  sufFer  punish- 
ment. This  case  has  proved  to  be  an  object  lesson.  Since 
a  superintendent  of  a  railroad,  an  educated  man,  and  the 
chief  of  the  railroad  police  (who  some  years  before  had 
been  an  officer,  the  turnkey  of  this  same  house  of  correc- 
tion), had  both  put  on  the  prison  uniform  and  served  sen- 
tence, the  public  opinion  seems  to  have  undergone  a 
change. 

Case  of  McCaethy. 

At  the  same  session  of  court  at  Plymouth,  two  men  were 
tried  for  breaking  and  entering  a  grocery  store  in  Brock- 
ton and  stealing  therefrom. 

One  man's  name  was  McCarthv  and,  as  I  looked  at 
him,  I  thought  I  had  seen  him  as  a  prisoner  while  I  was 
district  attorney  or  since  I  became  a  judge.  This  feeling 
grew  upon  me  and  I  felt  quite  sure  he  belonged  in  Lynn. 
After  he  was  convicted,  when  the  matter  came  up  for  sen- 
tence, an  honest  lawyer  in  the  old  fashion  style  of  dress 
(black)  addressed  the  Court.  He  stated  that  he  had  been 
employed  by  McCarthy,  who  was  a  man  of  character  and 
standing,  never  having  been  suspected  of  breaking  the 
law  before,  but  had  met  the  other  prisoner,  who  was  an 
old  offender,  and  all  that  could  be  said  against  McCarthy 


OF  A  LONG  LIFE.  159 


was,  that  he  had  gotten  into  bad  company;  that  he  had 
only  met  the  other  prisoner  on  the  night  of  the  breaking 
into  the  store  and  was  present,  although  taking  no  part  in 
the  crime.  The  lawyer  asked  that  his  client  be  put  upon 
probation.  At  this  point,  I  asked,  "Does  your  client  au- 
thorize you  to  make  these  representations"  ?  "Yes,  cer- 
tainly", said  the  attorney,  "but  why  does  your  Honor 
ask"  ?  "Because  McCarthy  and  I  are  old  acquaintances. 
I  think  you  better  talk  with  him".  The  lawyer  went  to 
the  dock,  and  after  a  hasty  consultation  with  his  client, 
again  addressed  the  Court.  "I  beg  your  Honor's  pardon. 
My  client  informs  me  that  twenty  years  or  more  ago, 
while  you  were  district  attorney,  he  was  convicted  and 
sentenced  to  the  reformatory". 

The  Court.  "Is  that  all  he  tells  you  ?  I  think  you  had 
better  talk  with  him  again". 

The  Attorney.  "Yes,  he  says  that  three  years  after- 
wards, he  was  convicted  of  breaking  and  entering  a  store 
in  Lynn,  and  sentenced  to  two  years  in  the  house  of  cor- 
rection". 

The  Court.  "But  does  he  not  tell  you  what  has  hap- 
pened to  him  since  I  became  a  judge"  ? 

The  Attorney.  "Yes,  he  says  that  you  sentenced  him 
for  burglary  to  the  state  prison  for  five  years". 

The  Court  (addressing  the  prisoner).  "I^ow,  McCar- 
thy, do  you  not  think  it  best  to  tell  the  whole  story,  rather 
than  to  have  the  District  Attorney  send  to  Mr.  Shaw,  the 
state  officer,  to  bring  in  the  record  of  all  your  convic- 
tions" ? 

McCarthy.  "Yes,  your  Honor.  I  did  not  think  you 
would  remember  me,  as  it  is  about  twelve  years  since  you 
have  seen  me,  but  when  you  said  Sve  were  old  acquaint- 
ances', I  feared  it  was  all  up.  I  will  now  tell  you  the 
whole  truth".    So  McCarthy  went  on  and  told  of  the  num- 


160  SOME  RECOLLECTIONS 

_ ^ 


ber  of  times  he  had  been  in  prison,  and  it  turned  out  that 
in  twenty  years  he  had  been  in  prison  the  greater  part  of 
the  time. 

The  lawyer  was  greatly  mortified,  and  made  his  apolo- 
gies to  the  Court,  and  as  an  excuse,  said  the  prisoner's 
mother  and  sister  had  confirmed  the  prisoner's  story  of 
innocence.  I  assured  the  lawyer  that  I  believed  him  and 
he  seemed  somewhat  relieved. 

The  next  day,  the  newspapers  had  an  account  of  the 
proceeding,  with  glowing  accounts  of  the  Judge's  great 
memory  of  the  faces  of  prisoners,  etc.,  etc. 

As  a  matter  of  fact,  I  was  entitled  to  no  credit.  I  hap- 
pened to  remember  McCarthy's  face,  and  by  remarking 
that  "we  were  old  acquaintances"  thereby  induced  him  to 
tell  the  whole  story.  I  also  felt  that  if  McCarthy  had 
been  convicted  when  a  young  man  and  was  now  forty 
years  old,  from  the  nature  of  this  crime,  which  showed  the 
experience  of  a  "professional",  it  was  altogether  probable 
that  he  had  been  engaged  in  crime  since,  which  turned  out 
to  be  the  case. 


A  Boy  Witness. 

A  case  was  being  tried  before  me  against  the  Boston 
Elevated  Railroad,  and  a  little  boy,  perhaps  seven  years 
old,  was  called  as  a  witness.  The  counsel  for  the  defence 
objected  to  his  being  used  as  a  witness,  as  he  was  too 
young  to  understand  and  appreciate  an  oath,  and  asked 
the  court  to  examine  him  and  ascertain  that  fact.  The 
boy  looked  frightened  and  as  if  he  was  about  to  cry.  He 
took  the  witness  stand  close  beside  the  bench.     His  name 

was  John  .     I  said  to  him  in  a  low  voice,  as  if 

talking   confidentially,    "John,    do   you   play  base-ball"  ? 


OF  A  LONG  LIFE.  161 


He  replied,  "Yes,  Judge".  He  was  a  little  short  fellow, 
and  I  said,  "I  guess  you  play  short  stop".  "You  are  right 
Judge",  replied  Johnnie. 

By  this  time  all  disposition  to  be  frightened  or  cry  had 
disappeared.  I  then  asked  him  about  his  school,  etc.,  and 
he  showed  unusual  brightness.  I  remarked,  "This  boy 
will  do,  he  is  all  right". 

He  made  one  of  the  best  witnesses  called  in  the  case. 
If  I  had  said  to  him  in  a  stern  voice.  "Do  you  under- 
stand the  nature  of  an  oath  ?  What  will  happen  to  you 
if  you  tell  a  lie  ?"  as  is  sometimes  asked  in  like  cases,  the 
boy  would  have  broken  down  in  a  crying  spell. 


Thomas  Riley. 

Thomas  Riley,  a  lawyer  of  some  prominence  in  Boston, 
who  had  made  some  trouble  in  court,  had  been  fined  for 
contempt  of  court  many  times,  came  to  have  an  experience 
with  me  in  this  way.  Before  I  was  appointed  a  judge,  I 
happened  to  be  in  court  one  day,  where  Mr.  Riley  was 
trying  a  case  before  Judge  Thompson.  Riley  having  a 
weak  case  knew  that  the  Judge's  charge,  if  fair  and  just, 
would  have  a  tendency  to  show  the  weakness  of  his  case. 

So,  as  it  seemed  to  me,  Mr.  Riley  commenced  to  say 
and  do  things  for  the  purpose  of  irritating  the  Court.  Mr. 
Riley's  conduct  did  irritate  the  Judge  and  he  showed  re- 
sentment by  a  just  reprimand  with  a  flushed  face.  There- 
upon Mr.  Riley  smiled  to  the  jury  as  if  saying,  "You  see 
the  Judge  is  on  the  other  side  of  this  case".  So  later 
when  the  Judge  was  charging  the  jury,  Mr.  Riley  was, 
by  looks  and  acts,  keeping  up  the  insinuation,  that  the 
Judge  was  against  his  client. 

I  felt  at  the  time,  that  the  Judge  was  unfortunate  in 


162  SOME  EECOLLECTIONS 

exhibiting  temper,  the  very  thing  that  Mr.  Riley  by  his 
conduct  had  planned  to  produce. 

Many  years  afterwards  while  I  was  holding  the  crim- 
inal session  in  Boston,  where  two  prisoners  w^ere  being 
tried  upon  a  charge  of  robbery,  Mr.  Riley  appearing  for 
one  and  another  attorney  for  the  other,  I  thought  he  in- 
tended to  have  the  same  kind  of  trouble  with  me  for  the 
same  purpose. 

The  District  Attorney  called  the  Court's  attention  to  Mr. 
Riley's  conduct  in  cross-examination  of  a  witness  and  ob- 
jected to  it.  I  said  in  a  quiet  way  that  Mr.  Riley's  con- 
duct was  improper,  but  he  repeated  it. 

Court  adjourned  in  a  few  moments.  I  then  called  Mr. 
Riley  to  the  bench,  and  said,  "Mr.  Riley  your  mode  of 
cross-examination  is  very  objectionable  and  it  cannot  be 
allowed,  but  I  noticed  a  few  moments  ago  after  I  had  so 
stated,  you  kept  it  up".  "Oh",  said  Mr.  Riley,  "it  was 
an  inadvertence". 

The  next  day  he  commenced  to  cross-examine  in  the 
same  way,  looking  at  the  Court  as  if  he  intended  to  say, 
■"Help  yourself  if  you  can".  To  make  sure  that  I  correct- 
ly interpreted  the  look,  I  said,  in  a  mild  voice,  "Mr. 
Riley,  we  talked  this  matter  over  last  evening,  and  I 
thought  we  understood  each  other,  but  you  seem  to  be 
continuing  in  the  same  way". 

"Yes",  said  Mr.  Riley,  "you  said  something  to  me  about 
it  in  private,  but  I  prefer,  if  you  have  anything  to  say  to 
me  that  you  will  say  it  publicly,  in  open  court".  I  said, 
in  the  same  quiet  way,  without  raising  my  voice,  "I 
think  Mr.  Riley  we  now  fully  understand  each  other, 
you  may  proceed  with  your  cross-examination".  He  did 
proceed,  but  going  on  in  the  same  way,  except  in  a  more 
objectionable  way,  at  the  same  time  looking  defiantly  at 
the  Court.     After  he  had  gone  on  long  enough  to  make 


OF   A  LONG  LIFE.  163 


sure  that  he  intended  to  disregard  my  order  and  defy 
me,  I  said,  "Mr.  Sheriff,  we  will  take  a  recess  of  a  few 
minutes  during  which  time  you  will  notify  Mr.  Riley's 
client,  that  he  will  be  obliged  to  secure  other  counsel,  as 
Mr.  Riley  cannot  represent  him  any  further".  This 
seemed  to  be  a  new  turn  in  affairs  and  out  of  the  order 
of  the  Court's  fining  the  lawyer  for  contempt. 

When  our  recess  was  over,  the  prisoner  stated  that  he 
iad  no  more  money  to  pay  another  lawyer,  as  he  had  paid 
all  he  had  to  Mr.  Riley.  I  stated  to  him,  that  as  he  had 
no  counsel,  it  was  the  duty  of  the  court  to  see  that  his 
rights  were  guarded  and  protected.  Then  I  said  to  the 
District  Attorney,  "You  will  proceed  with  the  trial". 
Soon  Mr.  Riley  left  the  court  room  and  the  counsel  for 
the  other  prisoner  appeared  for  both. 

The  second  morning  after,  Mr.  Riley  came  into  court, 
and  I  said  good  naturedly,  "Good  morning".  He  came 
to  the  bench  and  said  to  me,  "Judge,  I  do  not  know  my 
status  in  this  court,  I  have  several  cases  on  the  short-list". 
I  replied,  "The  slate  is  all  clear,  my  order  only  including 
the  case  on  trial".  He  tried  many  cases  before  me  after 
that,  but  always  conducted  himself  with  entire  propriety. 
We  became  quite  good  friends.  He  learned  that  clients 
"would  not  employ  a  lawyer  who  was  liable  to  be  sent  out 
of  court. 


Teibute  to  Chaeles  Peekins  Thompson^  Justice  of 
the  supeeioe  couet  feom  1885  to  1894. 

At  a  session  of  the  Superior  Court  in  Salem,  June  29, 
1894,  Justices  Sherman,  Lilly  and  Sheldon  (successor  of 
Judge  Thompson)  being  present,  a  memorial  (prepared 
by  a  committee  of  the  bar  previously  appointed)  was  pre- 


164  SOME  EECOLLECTIONS 

sented  to  the  court.  Remarks  were  made  by  "William  D. 
Northend,  Elbridge  T.  Burley,  Daniel  Saunders,  Henry 
P.  Moulton,  William  H.  Xiles,  and  Frank  C.  Richardson. 
After  which  Justice  Sherman  replied  as  follows: — 

Brethren  of  the  Bar: — 

When  I  came  to  this  bar  in  1858  I  first  met  Mr. 
Thompson,  who  had  preceded  me,  having  taken  up  his 
residence  in  Gloucester  the  year  before.  From  that  time 
until  1868,  when  I  was  elected  to  the  office  of  district 
attorney,  I  met  him  occasionally.  For  the  next  fourteen 
years  we  met  frequently  in  the  civil  and  criminal  courts, 
more  frequently  in  the  latter,  as  he  had  a  large  docket  in 
that  court. 

After  I  became  attorney  general,  in  1883,  we  met  often, 
especially  in  the  summer  months,  I  some  years  prior,  hav- 
ing taken  up  my  residence  in  Gloucester  during  the  sum- 
mer. 

He  was  appointed  to  the  bench  in  1885,  and  I  in  1887, 
after  which  time  our  relations  were  very  intimate.  It  is 
pleasant  to  remember  that  in  the  great  number  of  cases 
we  tried,  as  opposing  counsel,  there  never  was  an  unpleas- 
ant word  between  us. 

I  was  once  asked  by  former  justice  of  this  court,  only 
slightly  acquainted  with  Mr.  Thompson,  why  it  was  that 
I  manifested  such  a  great  respect  for  and  confidence  in 
him.  I  answered,  "Because  he  is  such  a  good  fellow  and 
so  honorable  in  his  practices, — if  he  should  tell  me  that  I 
made  an  agreement  a  year  ago  about  the  disposition  of  a 
criminal  case,  of  which  I  had  no  recollection,  I  have  such 
implicit  confidence  in  his  integrity,  I  should  carry  out  the 
agreement  according  to  his  understanding". 

As  a  lawyer  he  had  a  good  degree  of  success,  not  in  a 
financial  sense,  but  in  giving  to  a  large  number  of  his 


OF   A  LONG  LIFE.  165 


fellow  citizens  the  best  of  advice  without  charge  or  com- 
pensation, and  in  giving  to  a  large  clientage  great  ability 
and  faithful  services,  with  moderate  charges. 

He  will  be  gratefully  remembered  by  the  citizens  of 
Cape  Ann  as  a  lawyer  who  did  not  stir  up  strife,  incite 
neighbors  against  neighbors,  nor  encourage  litigation;  he 
was  a  genuine  peacemaker,  and  literally  kept  the  attor- 
ney's oath, — "He  would  do  no  falsehood,  nor  consent  to  the 
doing  of  any  in  court;  he  did  not  wittingly  or  willingly 
promote  or  sue  any  false,  groundless  or  unlawful  suit;  he 
delayed  no  man  for  lucre  or  malice;  but  he  conducted 
himself  in  the  office  of  an  attorney  within  the  courts  ac- 
cording to  the  best  of  his  knowledge  and  discretion,  and 
with  all  good  fidelity  as  well  to  the  courts  as  to  his 
clients". 

Judge  Thompson,  as  a  member  of  the  legislature  and 
of  congress,  established  a  reputation  as  a  man  of  ability 
and  integrity. 

Mr.  Justice  Thompson  was  a  popular  judge;  naturally 
such,  with  his  genial  disposition,  pleasant  ways,  ready  wit, 
and  love  of  anecdote,  he  could  not  be  otherwise ;  he  carried 
about  with  him  wherever  he  went  a  large  amount  of  sun- 
shine. The  lawyers,  court  officers  and  jurors,  were  glad  to 
meet  him  in  or  out  of  court.  With  his  associates  upon  the 
bench  he  was  considerate  and  companionable ; 

"ISTone  knew  him  but  to  love  him, 
l^one  named  him  but  to  praise". 

He  possessed  a  sensitive  conscience;  he  wanted  to  do 
right,  administer  exact  justice,  and  he  was  determined  to 
do  it  in  such  way,  and  with  such  care,  as  to  leave  no  doubt 
in  the  mind  of  any  person  as  to  his  purpose  and  motive. 

The  pleasantest  and  happiest  years  of  his  life  were 
those  immediately  preceding  his  last  illness.    He  thorough- 


166  SOME  RECOLLECTIONS 

_ 

]y  enjoyed  his  position  and  work  upon  the  bench ;  he  had 
a  happy  home,  with  a  dutiful,  affectionate  and  devoted 
wife ;  his  son  had  passed  the  anxious  years  of  boyhood  into 
manhood  and  successful  professional  engagement;  and  a 
loving  daughter,  after  long  and  anxious  years  of  illness^ 
had  been  restored  to  health,  and  everything  seemed  pro- 
pitious for  the  future,  and  his  friends  expected  he  would 
reach  the  age  of  four  score  years.  But  what  seemed  to  us, 
who  cannot  understand  the  mysteries  of  life  and  death, 
a  cruel  fate,  decided  otherwise.  He  was  cut  down  in  the 
midst  of  his  usefulness  by  a  fatal  disease,  which  preyed 
upon  both  body  and  mind,  until  it  so  weakened  the  latter 
that  life  to  him  seemed  a  great  burden,  too  great  finally  to 
be  endured  longer.  And  as  we  think  how  terribly  he 
suffered  in  those  last  days,  of  the  agony  of  those  last 
hours,  can  we  say  that  perhaps,  after  all,  it  was  not  best  ?* 

While  we  shall  miss  him  and  mourn  his  loss,  we  may 
be  comforted  with  the  thought  of  how  much  better  this 
part  of  the  world  is  on  account  of  his  life  and  example. 
He  did  much  to  make  the  world  better,  to  fill  it  with  sun- 
shine and  happiness,  and  he  has  left  behind  him  a 
reputation  for  honesty  and  integrity  as  firm  and  rugged 
as  the  rocks  of  the  Cape  where  he  dwelt. 

As  I  go  to  my  summer  home  by  the  sea,  where  he  so 
often  visited  me,  I  shall  feel  constantly, 

"He  will  come  no  more. 
That  friend  of  mine  whose  presence  satisfied 

The  thirst  and  hunger  of  my  heart.     Ah,  me ! 
He  has  forgotten  the  pathway  to  my  door, 

Something  has  gone  from  Nature  since  he  died, 
And  summer  is  not  summer,  nor  can  be". 

•Judge  Thompson  committed  suicide. 


OF  A  LONG  LIFE.  167 


In  the  year  1901,  the  Boston  Globe  published  a  fulsome 
article  with  a  good  picture  of  myself  as  follows: — 

"Taught  District  School. 

Judge  Edgar  J.  Sherman,  Now  Leader  of  Massachusetts 

Bench  and  Bar. 

Judge  Edgar  J.  Sherman  of  the  Superior  Court  is  an- 
other prominent  Bay  State  character  who  taught  school 
to  earn  the  money  which  enabled  him  to  study  law.  A  Ver- 
monter  by  birth  and  education,  he  was  sent  to  the  Wesley- 
an  seminary.  After  graduating  from  this  institution,  he 
taught  school  on  Cape  Cod,  and  in  1855,  at  the  age  of  21, 
he  began  studying  law,  and  in  due  time  he  was  admitted 
to  the  bar  in  this  state. 

In  1859  he  was  appointed  clerk  of  the  Lawrence 
police  court,  and  in  1861  he  resigned  this  position  to  be- 
come a  volunteer  soldier  in  the  war  of  the  rebellion.  He 
enrolled  as  an  enlisted  man,  but  was  soon  elected  captain 
in  the  48th  regiment  from  this  state.  He  served  under 
General  Banks  and  was  brevetted  a  major  for  gallant  and 
meritorious  services  at  the  second  attack  on  Port  Hudson, 
June  14,  1863. 

At  the  expiration  of  his  term  of  enlistment  he  returned 
to  Lawrence,  but  on  the  threat  of  the  rebels  to  raid  Wash- 
ington, Captain  Sherman  gathered  together  a  company 
of  volunteers  and  went  to  the  front  the  second  time  as  cap- 
tain of  the  company  in  the  famous  old  6th  Massachusetts. 

In  1865  he  was  elected  to  the  house  of  representatives 
and  returned  the  following  year.  For  some  years  after 
the  war  he  was  prominent  in  militia  circles,  and  when  he 
retired  he  held  the  position  of  judge  advocate  general. 

In  1868  he  was  chosen  district  attorney  for  the  eastern 
district  of  Massachusetts,  and  was  honored  with  five  con- 
secutive elections,  resigning  to  become  attorney  general 
in  1882.  In  1887  he  was  made  one  of  the  judges  of  the 
superior  court. 

Judge  Sherman  belongs  to  the  same  branch  of  the  Sher- 
man family  that  produced  Gen.  W.  T.  Sherman  and  the 


168  SOME  EECOLLECTIONS 

late  John  Sherman,  and  many  see  in  him  the  same  general 
features  of  the  former  mentioned  distinguished  brother. 

Judge  Sherman  ranks  as  one  of  the  most  even  tempered 
Justices  of  the  Superior  Court.  Tall,  thin  and  wiry,  he 
moves  about  quickly,  dispatches  a  deal  of  work  in  a  short 
time,  and  is  one  of  the  most  democratic  justices  of  his 
court.  He  is  often  seen  riding  back  and  forth  on  his 
wheel.  He  is  a  hard  worker,  a  great  reader,  and  when 
practicing  at  the  bar  was  regarded  as  an  able  lawyer." 

I  wrote  a  letter  to  the  proprietor  as  follows: — 

"Boston,  June  15,  1901. 
Oejt'l  Chas.  H.  Tayloe, 

Proprietor  of  the  Globe. 
My  Dear  General: 

Some  writer  published  in  your  paper  on  Thursday, 
with  a  picture  of  myself,  a  fulsome  article  headed  in  large 
letters,  "Judge  Edgar  J.  Sherman,  ITow  Leader  of  the 
Massachusetts  Bench  and  Bar" ! 

My  enemies  will  say  the  article  is  a  lie,  and  my  most 
admiring  friends  will  not  claim  it  to  be  true. 

I  am  not  the  leader  of  the  bench.  There  are  seven 
justices  of  the  Supreme  Judicial  Court  and  the  Chief 
Justice  of  the  Superior  Court,  who  are  my  seniors,  and 
there  are  many  of  my  juniors  of  the  latter  court,  who  are 
better  lawyers  and  judges  than  I  am. 

I  never  was  the  leader  of  the  bar  of  Massachusetts,  ex- 
cept in  the  sense  that  while  I  was  attorney  general  I 
occupied  the  position  as  leader. 

I  cannot  understand  why  the  article  was  published. 
Undoubtedly  the  writer  intended  to  do  me  a  kindness.  I 
am  not  in  politics  or  a  candidate  for  public  office.  I  am 
put  upon  the  shelf,  without  aspiration  or  ambition,  sim- 
ply trying  to  do  my  duty  as  a  judge.  If  I  was  convivial, 
or  in  a  position  to  justify  "seeing  my  friends,"  the  article 
would  prove  expensive.  As  it  is,  sedate  gentlemen  ask, 
^'What  does  such  an  article  cost?"     Others  make  indirect 


OF  A  LONG  LIFE.  169 


reference  to  the  latest  decision  on  punctuation*,  and  com- 
ment on  the  hour  when  orders  for  luncheon  may  be  given. 
The  late  George  M.  Stearns  once  remarked,  that  he  would 
not  be  obliged  to  behave  as  well  as  a  judge  had  to,  for 
twice  his  salary. 

This  article  is  causing  me  much  embarrassment. 

I  do  not  feel  quite  safe  in  asking  to  have  it  corrected. 
Will  you  kindly,  in  the  most  severe  military  style,  com- 
mand the  writer  "not  to  do  it  again"  ? 

Very  truly  yours, 

Edgae  J.  Shekman". 


•Commonwealth  vs.  Kelly,  177  Mass.  R.,  221. 


CHAPTER  X. 


CONTINUED    JUDICIAL    SERVICE. 


Contempt  of  Couet  Peoceedings. 

During  the  December  (1898)  Criminal  Session  of  the 
Superior  Court  at  Dedham,  which  was  held  by  me,  Daniel 
W.  Getchell,  a  locomotive  engineer,  was  tried  upon  an 
indictment  charging  him  with  manslaughter — criminal 
negligence — in  running  an  engine  and  train  of  cars  into 
the  rear  end  of  another  train  at  Sharon  Station,  killing 
Franklin  W.  Waters,  on  August  21,  1898.  A  heavy 
train  reached  Taunton  on  the  New  York,  New  Haven  and 
Hartford  Railroad.  The  train  was  there  divided  into  two 
divisions,  Getchell  running  the  second  into  Boston,  and 
it  was  his  duty  to  so  run  the  rear  division  as  not  to  run 
into  the  first  division.  Under  the  rules  of  the  road  he 
was  not  to  run  by  a  danger  signal.  When  he  reached 
such  a  signal,  it  was  his  duty  to  stop  his  train  and  wait  un- 
til the  signal  was  changed,  showing  that  the  train  in  front 
had  passed  beyond  the  next  signal. 

At  Sharon  Heights  he  saw  the  danger  signal,  but  un- 
doubtedly thought  that  before  he  reached  Sharon  Station, 
the  first  division  would  be  out  of  his  way ;  and  so  he  "took 
chances",  coming  on  at  full  speed  until  he  approached  the 
Sharon  Station,  when  he  observed  to  his  horror,  that 
the  other  train  was  still  there.    He  reversed  his  lever  and 


OF  A  LONG  LIFE.  171 


jumped  off  his  engine,  which  came  crashing  into  and  run- 
ning way  through  the  rear  car,  killing  Mr.  Waters  and 
five  others  and  injuring  many  passengers. 

While  the  case  was  being  tried  there  appeared  in  "The 
Boston  Traveler",  an  article  containing  a  one-sided  par- 
tisan view  of  the  case,  in  favor  of  the  defendant,  winding 
up  as  follows: — "In  either  case  who  is  to  blame,  certainly 
not  Engineer  Getchell,  for  he  was  inexperienced  in  the 
use  of  the  air  brake;  he  is  not  to  be  censured,  but  the 
fault  lies  with  the  road  officials  who  allowed  him  to  op- 
erate the  train.  From  the  evidence  thus  far  given  it  is 
probable  that  the  result  will  be  in  Mr.  Getchell's  favor". 
The  facts  were  called  to  the  attention  of  the  Court,  by  the 
District  Attorney  alleging  that  the  paper  and  article  had 
a  tendency  to  prevent  a  fair  and  impartial  trial  by  the 
jury  of  said  indictment  against  said  Getchell,  and  which 
paper  he  stated  was  circulated  about  the  court  room,  while 
said  case  was  upon  trial.  The  Court  caused  said  complaint 
to  be  reduced  to  writing.  It  was  thereupon  ordered  by  the 
Court,  that  the  sheriff  notify  Torrey  E.  Wardner,  the  pub- 
lisher and  manager  of  said  paper,  to  appear  before  said 
Court  on  Tuesday,  the  twentieth  day  of  December,  1898, 
at  ten  o'clock  in  the  forenoon,  then  and  there  to  show 
cause  why  he  should  not  be  adjudged  guilty  of  a  con- 
tempt, in  publishing  said  article  while  said  cause  was  on 
trial,  with  an  expectation  that  it  might  be  seen  by  the 
Court  and  jury. 

On  December  20,  1898,  the  sheriff  reported  to  the  Court 
that  he  had  personally  notified  said  Wardner  on  Decem- 
ber 16,  1898,  to  appear  at  court  in  compliance  with  said 
order  of  Court  but  said  Wardner  did  not  so  appear.  On 
December  21,  1898,  said  Wardner  still  not  appearing, 
the  Court  directed  that  a  capias  be  issued  for  his  arrest. 
At  five  o'clock  p.  m.  on  said  December  21,  said  Wardner 


1Y2  SOME  KECOLLECTIONS 

appeared  before  said  Court  and  was  placed  at  the  bar  to 
answer  and  show  cause  why  he  should  not  be  adjudged 
guilty  of  contempt  as  set  forth  in  said  complaint  as  afore- 
said. 

The  said  Wardner  then  and  there  admitted  that  he  was 
responsible  for  said  publication  as  set  forth,  but  claimed 
that  he  had  a  right  to  make  such  publications  and  that  he 
could  not  allow  the  Justices  of  the  Superior  Court  to  in- 
terfere with  the  freedom  of  the  press.  After  fully  hear- 
ing said  Wardner  in  his  defence,  with  the  aid  of  counsel, 
and  after  full  hearing  and  consideration,  the  Court  found 
that  the  several  matters  hereinbefore  recited,  as  to  the 
printing,  publishing  and  circulation  of  said  article  were 
true ;  that  the  Boston  Traveler  containing  said  article  was 
circulated  in  the  court  room  while  said  case  was  on  trial 
and  was  seen  by  the  jury  or  some  of  the  jury  engaged  in 
the  trial  of  said  cause ;  and  that  said  article  was  circulated 
to  interfere  with  and  prevent  a  fair  trial  by  the  jury  in 
said  cause;  the  Court  thereupon  adjudged  said  Ward- 
ner guilty  of  contempt,  and  at  the  suggestion  and  request 
of  his  counsel  continued  said  matter  upon  the  question  of 
sentence  to  be  heard  December  23,  1898,  at  10  o'clock 
a.  m.,  said  Wardner  personally  recognizing  in  the  sum  of 
$500  for  his  appearance  as  directed. 

December  23,  1898,  said  Wardner  appeared  with  new 
counsel  and  had  a  full  hearing  upon  the  question  of  sen- 
tence, said  Wardner  still  claiming  the  right  to  make  the 
publication  as  set  forth  in  this  record,  and  still  denying 
the  right  of  the  Court  to  interfere. 

Judge  Sherman's  Remarks  at  Time  of  Sentence. 

"I  feel  like  saying,  before  sentence  is  pronounced,  that 
the  Court  of  course  has  no  personal  feeling  in  the  matter. 


OF   A   LONG   LIFE.  173 


It  was  my  duty,  as  I  regarded  it,  when  the  District  Attor- 
ney made  the  complaint  and  called  to  my  attention  this 
article  to  take  some  action  on  it,  and  I  caused  that  com- 
plaint to  be  reduced  to  writing  and  then  notified  the  de- 
fendant through  the  sheriff  of  the  article,  and  then  sub- 
sequently when  he  did  not  appear,  of  course  had  him 
called,  and  then  issued  a  capias,  but  he  came  into  court 
voluntarily  before  the  capias  reached  him,  and  then  there 
was  a  hearing  upon  the  question,  and  his  attitude  then 
was  the  same  as  I  understand  it  is  now,  practically  that 
he  felt  that  not  having  been  instructed  about  the  law — 
he  felt  he  had  the  right  to  do  what  he  did  do  and  did  not 
purpose  to  have  the  Court  interfere  with  the  management 
of  his  paper. 

^N'ow  the  practical  question  is, — I  have  no  doubt  it  was 
clearly  an  article  which  would  have  a  tendency  to  preju- 
dice the  minds  of  the  jury ;  it  was  written  and  published 
at  least  while  the  jury  had  the  case  under  consideration 
and  the  very  article  shows  the  writer  knew  it,  that  the 
case  was  being  considered  by  the  Court  and  jury.  Of 
course  the  paper  came  out  here,  at  what  time  it  reached 
here  is  uncertain,  but  from  the  evidence  which  I  have 
had,  I  am  satisfied  that  it  did  reach  here  in  time  to  have 
done  harm  to  the  jury,  if  it  had  been  seen  by  them,  but 
I  do  not  think  that  is  material.  The  important  thing  was 
the  writing  of  such  an  article  and  circulating  it  where  it 
would  be  expected  that  it  would  reach  the  jury.  That 
paper — I  do  not  know  how  large  a  circulation  it  has,  but 
it  is  circulated  here  and  was  circulated  in  court,  and  was 
shown  to  the  Court.  The  jury  had  the  paper,  and  I  am 
informed  that  they  had  it  from  the  jury  themselves,  that 
they  had  the  article  while  they  were  in  the  jury  room,  but 
that  they  took  this  view  of  it, — (evidently  it  did  not  in- 
fluence them  very  much) — to  wit:  That  that  was  the  pub- 


174  SOME  KECOLLECTIONS 


lie  view  of  the  case,  but  that  they  had  not  the  right  to 
take  that  into  consideration,  as  their  duty  was  to  decide 
the  case  on  the  law  and  the  evidence  as  given  at  the  trial. 
Now  if  Mr.  Wardner  had  said  that  he  was  ignorant  of 
the  law  and  that  he  was  a  law-abiding  citizen  and  that  he 
was  sorry  that  he  had  published  such  an  article  during 
trial  and  that  he  was  prepared  hereafter  to  be  law-abiding, 
of  course  I  should  have  felt,  as  we  all  must  feel  in  this 
class  of  cases  where  we  can,  in  either  not  taking  any  action 
or  at  least  in  taking  lenient  action  simply  for  the  purpose 
of  informing  newspaper  men  of  their  obligations.  Now 
I  am  not  aware  that  the  courts  in  this  Commonwealth 
have  ever  attempted  in  any  way  to  interfere  with  news- 
papers, except  in  just  such  cases,  where  reports  or  edito- 
rials are  published  either  giving  an  unfair  account  of  the 
trial  or  making  comments  during  trial,  so  that  it  has  a 
tendency  to  prejudice  the  jury. 

The  law  is,  to  my  mind,  perfectly  well  settled.  An 
article  giving  a  true  and  correct  report  of  the  trial  is  en- 
tirely lawful.  Reporters  may  publish  truthfully  every- 
thing that  takes  place  at  the  trial,  but  if  they  attempt  to 
warp  the  proceedings,  and  give  a  false  account  which  has 
a  tendency  to  prejudice  the  trial  it  is  within  the  prohibi- 
tion, or  if  they  write  editorials  which  have  a  tendency  to 
prevent  a  fair  trial,  either  in  a  civil  or  criminal  case,  it  is 
within  the  prohibited  rule. 

If  that  is  to  be  allowed  then  no  man  can  have  a  fair 
trial  and  the  case  might  as  well  be  tned  upon  the  news- 
paper article  and  not  upon  the  evidence. 

ISTow  this  case  stands  like  this:  The  defendant  is  here. 
I  have  heard  him  in  his  defence,  have  heard  all  the  facts 
and  circumstances,  and  have  adjudged  him  within  the 
rule  that  he  is  guilty  of  contempt.  Now  of  course  the  only 
question  is  what  sentence  shall  be  imposed. 


OF  A  LONG  LIFE.  175 


If  the  defendant  took  the  other  ground  that  by  some 
omission  or  mistake  he  did  commit  the  offence  without 
understanding  the  law  and  that  he  was  sorry  for  it,  and 
that  he  should  not  again  in  a  like  case  offend,  I  should 
be  very  much  relieved ;  but  evidently  he  thinks  that  he  has 
a  right,  and  he  has  if  he  wants  to,  to  test  the  question.  In 
other  words  he  stands  in  this  attitude, — "I  do  not  mean 
any  disrespect  to  the  Court,  but  I  will  not  obey  the  law. 
I  will  do  as  I  have  a  mind  to  about  it,  and  I  will  get  the 
higher  court  if  I  can  to  change  it,  and  if  I  cannot  I  will 
get  the  legislature  to  change  the  law;  and  I  maintain  this 
attitude  for  that  purpose". 

Now  of  course  I  must  deal  with  him  in  that  view,  but 
leniently;  the  Court  should  never  do  anything  vindictive- 
ly, but  since  he  takes  that  attitude,  I  do  not  see  that  he 
leaves  it  open  to  me  to  impose  a  small  fine.  He  compels 
me  to  inflict  some  punishment,  but  at  the  same  time  it 
ought  to  be  done  with  moderation,  because  it  is  not  the 
purpose  of  the  law  to  be  vindictive. 

Since  the  brother  of  the  defendant  called  on  me  last 
night  and  talked  about  the  matter,  I  have  given  the  case 
considerable  consideration,  because  it  is  not  a  matter  that 
is  personal  at  all,  it  is  a  matter  where  I  am  acting  in  a 
judicial  capacity,  for  the  Court,  and  of  course  what  I  de- 
sire to  do  is  just  the  right  and  proper  thing,  and  after 
giving  the  case  such  consideration  as  I  have  been  able  to, 
I  have  come  to  a  conclusion  which  the  clerk  may  an- 
nounce. 

Sentence. 

The  Clerk.    "Torrey  E.  Wardner: 

You  have  been  found  guilty  of  a  contempt  of  court, 
after  due  complaint  and  hearing,  as  appears  of  record  in 
this  court.    It  is  considered  and  ordered  by  the  Court  that 


176  SOME  EECOLLECTIONS 

you  be  punished  therefor,  by  imprisonment  in  the  common 
jail  in  the  County  of  Norfolk,  for  a  period  of  thirty  days, 
unless  you  are  sooner  released  therefrom  by  order  of 
Court  by  due  course  of  law. 

Mr.  Sheriff,  this  prisoner  is  in  your  custody,  under 
sentence  to  the  jail". 

Subsequently  the  following  petition  was  filed. 

Norfolk^  ss.  Supekioe  Couet. 

Dedham,  December  Sitting,  1898:  December. 31,  1898. 

The  following  petition  of  Torrey  E.  Wardner  was  filed 
in  court: 

To  His  Honor,  Mr.  Justice  Sherman  of  the  Superior 
Court : 

I,  Torrey  E.  "Wardner,  respectfully  represent  that  I 
have  now  served  more  than  one  week  of  the  sentence  to 
imprisonment  in  jail  for  contempt  of  court  in  publishing 
an  editorial  in  the  Boston  Traveler,  while  the  indictment 
against  Daniel  W.  Getchell  was  being  heard  before  the 
Court  and  jury,  which  article  would  have  a  tendency  to 
prevent  a  fair  and  impartial  trial;  that  since  the  adjudi- 
cation and  sentence  by  your  Honor,  I  have  applied  to  a 
Justice  of  the  Supreme  Judicial  Court  to  be  released  from 
said  imprisonment  on  habeas  corpus  upon  the  ground  that 
said  conviction  and  sentence  was  erroneous.  After  full 
hearing,  Mr.  Justice  Knowlton  refused  my  application 
upon  the  ground  that  that  court  had  no  authority  to  inter- 
fere. 

I  have  since  been  advised  by  my  counsel,  in  whom  I 
have  full  confidence,  that  the  full  bench  of  the  Supreme 
Judicial  Court  would  not  and  could  not  order  my  release 
from  imprisonment,  and  that  the  only  court  which  can 
grant  such  a  release  is  the  Superior  Court. 


OF  A  LONG  LIFE.  177 


I  am  also  now  convinced  that  the  article  published  by 
the  Boston  Traveler  was  a  violation  of  the  law,  and  that 
the  decision  of  your  Honor  in  so  deciding  was  correct  and 
proper,  and  that  my  attitude  in  claiming  the  right  to  pub- 
lish such  article  and  not  allow  the  court  to  interfere  was 
improper  and  erroneous. 

I  now  regret  that  I  violated  the  law  and  maintained 
such  attitude  before  the  Court. 

I  am  and  intend  to  be  a  law-abiding  citizen  and  assure 
the  Court  that  I  will  not  again  offend  in  this  respect. 

I  find  that  the  close  confinement  in  prison  is  affecting 
my  health  and  if  I  am  required  to  serve  the  remainder 
of  the  sentence  I  may  be  seriously  ill. 

I  therefore  respectfully  and  earnestly  pray  that  after 
having  purged  myself  of  said  contempt,  your  Honor  will 
order  my  release  of  the  whole  or  some  part  of  said  im- 
prisonment. 

TOEEEY  E.  WaKDNEE. 

Norfolk,  ss.  December  30,  1898. 

Then  personally  appeared  before  me  the  above-named 
Torrey  E.  Wardner  and  made  oath  that  the  statements 
above  made  by  him  are  true. 

Before  me, 

G.  Philip  Waednee, 

!N'otary  Public. 

And  the  following  order  was  made  thereon: — 

Commonwealth  of  Massachusetts. 

N^OEFOLK^   ss.  SuPEEIOE  CoUET. 

Dedham,  December  Sitting,  1898. 
In  matter  of  petition  of  Torrey  E.  Wardner  to  be  re- 


178  SOME  KECOLLECTIONS 

leased  from  further  imprisonment  for  the  contempt  of 
which  he  was  adjudged  guilty  and  sentenced. 

After  due  consideration,  the  Court  being  satisfied  that 
the  petitioner  has  purged  himself  of  the  contempt  of 
which  he  was  adjudged  guilty,  and  the  only  object  of  the 
Court  in  said  adjudication  and  sentence  having  been  ac- 
complished, to  wit,  of  attempting  to  secure  the  litigant 
fair  and  impartial  trial,  it  is  ordered  that  said  Torrey  E. 
Wardner  be  forthwith  released  and  discharged  from 
further  imprisonment. 

By  order  of  court,  this  thirty-first  day  of  December, 
1898. 

R.    B.    WORTHINGTON, 

Assistant  Clerk. 
A  true  copy  of  record — Attest: 

R.    B.   WOETHINGTON, 

Assistant  Clerk. 

Getchell  was  found  guilty  of  manslaughter,  and  sen- 
tenced to  two  years  in  the  house  of  correction. 

I  did  not  know  Mr.  Torrey  E.  Wardner  personally  be- 
fore these  preceedings  were  commenced,  although  I  was 
acquainted  with  his  father,  a  very  respectable  citizen  liv- 
ing in  Lawrence,  and  I  knew  his  brother,  G.  Philip 
Wardner,  a  reputable  attorney  practising  in  Boston. 

I  did  not  want  to  sentence  Wardner  to  imprisonment, 
and  hoped  that  he  would  so  act  that  it  could  be  avoided, 
but  I  was  informed  that  he  thought,  if  he  was  imprisoned, 
he  would  be  regarded  as  suffering  martyrdom  for  stand- 
ing up  for  free  and  independent  press,  and  thereby  in- 
crease the  circulation  of  his  paper. 

I  sent  a  very  judicious  officer.  Sheriff  Endicott,  to  call 
upon  Wardner  at  the  Traveler  office,  and  politely  asked 


OF   A   LONG  LIFE.  179 


him  to  come  to  court  and  explain  how  the  article  came  to 
be  published.  The  sheriff's  report  of  the  interview  was 
quite  interesting. 

He  had  some  difficulty  in  getting  admitted  to  the 
Sanctum  Sanctorum.  The  sheriff.  "Judge  Sherman 
wanted  I  should  see  you  and  request  that  you  come  to 
court  at  Dedham  and  explain  how  the  article  on  the 
Getchell  trial  came  to  be  published"  ?  Wardner.  "Well, 
I  shall  not  go". 

The  sheriff.  "I  think  you  better — of  course  if  you  do 
not,  probably  I  shall  have  to  come  again  with  a  capias 
to  arrest  and  bring  you  to  court". 

After  considerable  conversation,  Wardner,  still  saying 
he  would  not  go  to  court,  finally  added,  "I  am  willing  to 
wager  the  value  of  this  newspaper,  that  they  cannot  get 
me  into  jail". 

The  Sheriff,  who  sometimes  comes  near  stuttering  said, 
"Well,  if,  if,  it  would  be  pr-proper  for  me  to  bet,  I  should 
be  willing  to  take  it,  pro-provided  you  keep  up  this  at-at- 
attitude". 

N'one  of  the  newspapers  seemed  to  sympathize  with 
Wardner,  as  they  evidently  thought  the  court  had  given 
him  every  reasonable  opportunity  to  escape  punishment, 
and  finally  they  were  very  much  disgusted  with  him,  be- 
cause after  manifesting  such  courage;  willing  to  suffer 
martyrdom,  he  "cried  baby"  so  quickly  to  obtain  his  re- 
lease. 

It  ought  to  be  stated  that  Wardner  was  a  large,  good, 
healthy  looking  man — what  might  be  called  a  high  liver, 
smoking  strong  cigars  and  many  of  them  in  the  course 
of  the  day.  He  thought  he  could  go  on  in  the  same  way, 
having  the  same  high  living  in  jail  and  editing  his  paper 
from  his  cell.    After  sentence,  he  asked  the  sheriff  to  take 


180  SOME  EECOLLECTIONS 

him  to  Boston  to  make  arragements  for  his  thirty  days 
absence. 

The  sheriff.  *'I  have  no  right  to,  my  precept  commands 
me  to  take  you  to  jail".  Wardner.  "How  about  writing 
and  receiving  letters"  ?  Sheriff.  "You  can  write  and  re- 
ceive one  letter  a  week".  Wardner.  "How  about  tobac- 
co" ?  Sheriff.  "It  is  not  allowed".  Wardner.  "Can  I 
have  my  meals  sent  into  the  jail"  ?  Sheriff.  "We  allow 
fruit  to  be  sent  to  the  prisoners  once  a  week,  but  nothing 
else.  You  will  have  to  subsist  on  the  prison  fare.  We 
can  show  no  distinction  in  the  treatment  of  our  prisoners. 
They  must  all  be  treated  alike — no  high,  no  low,  no  rich, 
no  poor  prisoners — they  are  all  on  the  same  level.  Of 
course  you  would  not  recommend  having  it  otherwise". 

After  a  full  day's  imprisonment,  he  began  to  think  he 
could  not  endure  it,  and  sent  to  his  brother  to  get  him  out 
at  any  cost.  The  brother  told  him  that  there  was  but  one 
way,  and  that  was  the  one,  he,  the  brother,  had  first  ad- 
vised, to  say  that  he  had  done  wrong  and  that  he  would 
not  do  it  again ;  that  if  he,  the  prisoner,  was  willing  to  do 
that,  he,  the  brother,  would  try  and  obtain  a  release. 

Of  course,  Wardner  was  afraid,  if  he  did  what  the 
brother  advised,  his  fellow  editors  would  laugh  at  him, 
but  that  he  finally  concluded  was  not  as  bad  to  stand  as 
the  imprisonment. 

A  few  days  after  this  case  of  contempt,  the  Supreme 
Judicial  Court  decided  the  cases  of  Telegram  ^N^ewspaper 
Company  vs.  the  Commonwealth,  and  Gazette  Company 
vs.  the  same — the  liability  of  corporations  for  contempt. 
(See  172  Massachusetts  Report,  294.) 

It  was  stated  some  time  afterwards  that  the  reason  for 
Wardner's  publication  of  the  article  concerning  the 
Getchell  trial,  was  because  he  had  had  trouble  with  the 
railroad,  that  the  company  had   refused  him   a   pass.     I 


OF  A   LOIs^G  LIFE.  181 


never   investigated  that  question,   and   therefore   can   say 
nothing  concerning  the  truth  of  the  statement. 


Some  Unpleasant  Experiences  as  a  Judge. 

At  the  September  session  of  the  Superior  Court  (1899), 
at  Lowell,  Judge  Lilley  was  assigned  to  preside,  I  during 
the  same  time  was  to  preside  at  Lawrence. 

Judge  Lilley  requested  me  to  exchange  sessions  with 
him,  as  there  were  several  cases  for  trial  on  his  list  be- 
tween neighbors  of  his.     I  consented  and  went  to  Lowell. 

The  case  of Jefferson  against  George  R.  Rich- 
ardson, the  former  being  a  son-in-law  of  the  latter,  was 
tried.  Mr  Richardson  was  the  leading  lawyer  of  Middle- 
sex County.  His  daughter  had  obtained  a  divorce  from 
Dr.  Jefferson,  the  plaintiff.  Charles  Cowley  was  counsel 
for  the  plaintiff  and  Fred  iN".  Wier  was  attorney  for  Mr. 
Richardson — Cowley  and  Richardson  were  not  on  good 
terms.  There  had  been  a  long,  unpleasant  quarrel  be- 
tween Dr.  Jefferson  and  his  wife.  The  trial  was  some- 
what heated  and  lasted  many  days.  There  were  three  or 
four  other  cases  for  trial  to  follow,  all  growing  out  of  the 
same  trouble,  the  quarrel  between  Dr.  and  Mrs.  Jefferson. 
In  the  interest  of  time,  after  hearing,  I  ordered  them  tried 
together. 

In  the  meantime,  Cowley's  client  lost  the  first  case,  a 
verdict  being  rendered  for  the  defendant.  He  stated  in 
open  court,  after  the  above  order,  that  he  would  not  try 
those  cases  together.  I  remarked,  quietly,  that  I  could  not 
say  whether  or  not  he  would  try  the  cases,  but  that  they 
would  be  tried  together.  A  jury  was  impanelled  to  try  the 
cases,  after  which  Cowley  stated  that  he  withdrew  as 
counsel  for  Miss  Fitch,  the  plaintiff  in  one  of  these  suits. 


182  SOME  RECOLLECTIONS 

I  immediately  said  to  Miss  Fitch  that  during  the  noon 
recess  she  could  obtain  other  counsel.  After  the  recess, 
Miss  Fitch  stated  that  she  had  not  obtained  other  counsel, 
and  that  she  desired  to  become  non  suit  in  her  case.  As 
the  defendant  would  not  consent,  a  verdict  was  taken  for 
the  defendant  with  her  consent. 

Subsequently,  Mr.  Cowley  filed  a  motion  for  a  new 
trial  for  Miss  Fitch  before  me,  which  after  hearing,  I 
overruled.  Then  Mr.  Cowley  filed  a  bill  of  exceptions, 
which  I  disallowed ;  first,  because  they  were  not  conform- 
able with  the  truth,  and  second,  because  as  matter  of  law 
the  plaintiff  was  not  entitled  to  a  new  trial.  Then  Mr. 
Cowley  moved  in  the  Supreme  Court  to  have  his  exceptions 
proved.  At  the  same  time  Mr.  Wier  moved  to  have  the 
exceptions  dismissed,  upon  the  same  grounds  stated  by  me 
in  overruling  the  exceptions,  to  wit:  Because  taking  them 
to  be  true  as  filed,  he  had  no  right  to  a  new  trial  as  a 
matter  of  law.  The  Supreme  Court,  after  argument,  took 
this  view  and  so  decided,  dismissing  the  bill  of  exceptions. 
(See  Fitch  vs.  Jefferson,  175  Mass.  Reports  56.) 

By  this  time,  Mr.  Cowley  had  worked  himself  up  into  a 
good  deal  of  feeling  against  me,  and  subsequently  pre- 
sented petitions  to  the  legislature  in  behalf  of  his  clients 
to  have  me  impeached. 

After  a  committee  of  the  legislature  heard  all  the  evi- 
dence he  had  to  offer  with  his  argument,  the  petition  was 
dismissed,^  or  in  parliamentary  language,  the  petitioners 
had  leave  to  withdraw.  The  Essex  and  Middlesex  Bar 
Associations  considered  this  and  other  petitions  for  the 
removal  of  judges  such  a  misuse  of  the  great  right  of 
petitions  that  they  published  and  issued  a  pamphlet,  en- 
titled "Misuse  and  Abuse  of  the  Right  of  Petition  for  the 
Removal  of  Judicial  Officers".  Published  by  the  Essex 
and  Middlesex  Bar  Associations,  1900,  as  follows: — 


OF  A  LONG  LIFE.  183 


"Misuse  and  Abuse  of  the  Right  of  Petition  for  the  Re- 
moval of  Judicial  Officers, 

'It  is  essential  to  the  preservation  of  the  rights  of  every 
individual,  his  life,  liberty,  property  and  character,  that 
there  be  an  impartial  interpretation  of  the  laws  and  ad- 
ministration of  justice.  It  is  the  right  of  every  citizen  to 
be  tried  by  judges  as  free,  impartial  and  independent  as 
the  lot  of  humanity  will  admit.  It  is  therefore,  not  only 
the  best  policy,  but  for  the  security  of  the  rights  of  the 
people,  and  of  every  citizen,  that  judges  of  the  Supreme 
Judicial  Court  should  hold  their  offices  as  long  as  they 
behave  themselves  well,  and  that  they  should  have  honor- 
able salaries  ascertained  and  established  by  standing 
laws'.     Declaration  of  Rights,  Article  XXIX. 

The  Constitution  of  Massachusetts  provides,  that  'All 
judicial  officers,  duly  appointed,  commissioned  and  sworn, 
shall  hold  their  offices  during  good  behavior,  .  .  .  ; 
provided  nevertheless,  the  governor,  with  the  consent  of  the 
council,  may  remove  them  upon  the  address  of  both  houses 
of  the  legislature'.    Chapter  3,  Article  I 

In  his  address  to  the  legislature  in  1899,  Governor 
Wolcott  spoke  as  follows,  concerning  the  judges  of  the  Su- 
preme Judicial  and  Superior  Courts: 

'No  questions  are  more  important  to  the  Commonwealth 
than  those  relating  to  the  Judiciary.  Massachusetts  has 
always  been  distinguished  for  the  ability,  uprightness  and 
learning  of  those  who  have  administered  the  law  in  her 
courts.  N^o  stain  of  corruption  has  ever  rested  upon  any  of 
her  judges,  and  the  decisions  of  her  court  have  from  the 
beginning  taken  first  rank  in  weight  of  authority'. 

This  undoubtedly  expresses  the  general  public  sentiment 
of  the  Commonwealth  concerning  our  judiciary. 

I^otwithstanding  such  sentiment,  there  have  been 
presented  to  the  legislature,  within  a  few  years,  by  dis- 
appointed litigants,  several  petitions  to  remove  from  office 
judges  of  the  Supreme  Judicial  and  Superior  Courts. 

Mira  Beals  commenced  an  action  against  Augustin 
Thompson  for  sending  to  her  husband  a  letter  containing  a 


184  SOME  KECOLLECTIONS 


'false  and  malicious  libel  concerning  her',  whereby,  as  she 
claimed,  she  was  greatly  damaged.  She  recovered  at  the 
trial  a  verdict  of  thirty  thousand  dollars.  The  case  was 
taken  by  exceptions  to  the  Supreme  Judicial  Court,  where 
the  verdict  was  sustained.  (Beals  vs.  Thompson,  149  Mass. 
R.,  405.)  Subsequently  said  Thompson  commenced  an 
action  against  his  attorneys  in  said  case,  alleging  negligence 
on  their  part  in  conducting  his  defence,  and  because  they 
did  not  plead  in  the  answer  the  statute  of  limitations.  A 
verdict  was  returned  for  the  attorneys,  and  said  Thompson 
took  the  case  to  the  Supreme  Judicial  Court,  where  the 
verdict  was  sustained.  (Thompson  vs.  Dickinson,  159 
Mass.  R.,  210.)  Said  Thompson  then  petitioned  the  legis- 
lature for  the  removal  of  the  judges  of  the  Supreme 
Judicial  Court,  alleging  that  'they  aided  and  abetted  in 
extortion,  aided  in  barring  the  people  from  approaching 
the  court  for  a  redress  of  their  wrongs ;  assisted  to  establish 
a  privileged  class  within  the  laws ;  denying  the  people 
equality  before  the  laws,  and  compelling  the  poor  to  sub- 
mit to  oppression  and  wrong  or  purchase  protection  at  ex- 
tortionate rates,  almost  invariably  beyond  their  means  of 
power'. 

A  petition  was  presented  for  the  impeachment  and  re- 
moval of  Hon.  James  R.  Dunbar,  a  justice  of  the  Superior 
Court,  by  James  W.  Stillman,  an  attorney,  who  repre- 
sented that  said  Justice  had  wrongly  and  improperly  de- 
cided a  case  against  the  petitioner. 

A  petition  was  presented  for  the  removal  of  Hon.  Daniel 
W.  Bond,  a  justice  of  the  Superior  Court,  by  Charles  Cow- 
ley, an  attorney.  Judge  Bond  had  previously  heard  a 
complaint  against  said  Charles  Cowley,  for  alleged  mal- 
practice as  an  attorney,  had  found  said  Cowley  guilty  and 
had  sentenced  him  to  be  disbarred  for  a  period  of  two 
years. 

The  petition  alleged  that  in  delivering  judgment  'the 
said  Justice  Bond,  without  just  cause,  but  with  great  pre- 
sumption, officially  pronounced  words  of  censure  upon 
your  petitioner'. 

The  last  petitions  presented  to  the  legislature  were  for 
the  removal  of  Hon.  Edgar  J.  Sherman,  a  justice  of  the 


OF  A  LONG  LIFE.  185« 


Superior  Court.  These  petitions  were  signed  by  Herbert 
P.  Jefferson,  Frances  W.  Fitch,  and  the  same  Charles 
Cowley. 

The  grounds  for  the  removal  of  said  Sherman  were  on 
account  of  the  alleged  misconduct  of  the  judge  in  a  trial 
before  him  in  1898,  wherein  said  Fitch,  Jefferson  and 
others  were  plaintiffs,  and  said  Cowley  was  acting  as  their 
counsel ;  that  said  Sherman  improperly  refused  to  continue 
said  Fitch's  case,  and  improperly  and  unlawfully  ordered 
it  tried  with  the  case  of  said  Jefferson  and  another. 

A  motion  for  a  new  trial  was  filed  by  said  Cowley,  in 
behalf  of  said  Fitch,  based  upon  the  same  grounds.  The 
judge  overruled  said  motion.  Thereupon  said  Cowley 
filed  exceptions.  The  judge  disallowed  them,  'first,  be- 
cause they  were  not  conformable  to  the  truth',  and  second- 
ly, because  'the  plaintiff  does  not  state  nor  claim  in  her 
motion  for  a  new  trial  or  in  these  exceptions  that  she  pre- 
sented the  questions  of  law  attempted  to  be  raised  hereby 
at  the  trial  and  before  the  verdict  and  then  saved  excep- 
tions to  the  alleged  erroneous  rulings  of  the  Court,  and 
they  cannot  now  be  presented'. 

Said  Cowley  then  petitioned  the  Supreme  Judicial 
Court  for  leave  to  prove  his  exceptions.  At  the  same  time 
Mr.  Wier,  the  defendant's  counsel,  moved  to  dismiss  the 
petition. 

The  Supreme  Judicial  Court  after  full  hearing  dis- 
missed the  petition  and  sustained  the  decision  of  Judge 
Sherman. 

(See  opinion  by  Holmes,  C.  J.,  in  Fitch  v.  Eichardson, 
175  Mass.  R.) 

Then  said  Cowley  filed  these  petitions  to  the  legislature 
for  the  removal  of  Judge  Sherman. 

The  judges  attacked  by  these  several  petitions  are  of  the 
highest  standing;  they  included  the  late  Chief  Justice 
Field,  the  present  Chief  Justice  Holmes,  and  three  justices 
promoted  to  the  supreme  from  the  superior  bench  on  ac- 
count of  eminent  fitness;  Justice  Dunbar,  a  man  of  ac- 
knowledged judicial  ability  and  capacity;  Justice  Bond, 
who  had  been  District  Attorney  of  the  isTorthwestern  dis- 
trict for  twelve  years  prior  to  his  nine  years  service  upon 


.186  SOME  EECOLLECTIONS 


the  bench ;  and  Mr.  Justice  Sherman,  who  had  served  four- 
teen years  as  District  Attorney  of  the  Eastern  district,  five 
years  as  Attorney  General  of  the  Commonwealth,  and 
twelve  years  upon  the  bench  of  the  Superior  Court. 

The  committees  on  the  judiciary  of  the  different  legis- 
latures to  whom  were  referred  all  the  foregoing  petitions, 
after  full  hearing,  unanimously  found  and  reported,  that 
the  charges  were  not  sustained,  and  that  the  petitioners 
have  leave  to  withdraw. 

The  different  legislatures  in  all  the  cases  accepted  the 
reports  of  its  committees. 

In  none  of  the  cases  did  the  judges  appear  before  the 
•committee,  and  the  petitioners  were  given  ex  parte  hear- 
ings so  far  as  they  were  concerned.  In  most  of  the  cases 
members  of  different  bar  associations  were  present  to  hear 
the  complaints,  and  when  they  thought  proper,  in  the  pub- 
lic interest,  to  make  suggestions  to  the  committees. 

The  judiciary  committee  in  its  report  on  Judge  Dun- 
bar's case,  states  the  rule,  which  we  think  should  be  com- 
mended by  the  bar  and  public,  as  follows,  'We  find,  and 
report  therefore,  after  full  public  hearing,  of  all  that  the 
petitioner  had  to  present,  and  there  are  no  grounds  what 
ever  for  instituting  proceedings  for  impeachment.  It  is 
the  just  pride  of  the  Commonwealth  that  its  judges  have 
been  and  are  able  and  upright,  and  its  courts  pure,  that  to 
no  person  is  justice  sold  or  denied.  The  stability  of  our 
government  rests  largely  upon  their  freedom  from  accusa- 
tion or  suspicion  and  in  the  constant  confidence  of  all  the 
people  in  their  absolute  integrity,  and  we  should  pause 
carefully  to  hear  the  proper  complaint  of  any  suitor  that  he 
has  not  received  justice  in  our  courts  by  reason  of  incom- 
petent or  corrupt  judges.  But  petitions  for  impeachment 
plainly  based  upon  trivial  and  groundless  charges  are  a 
direct  attack  upon  the  dignity  of  the  courts  of  this  Com- 
monwealth and  its  judiciary  and  deserve  severe  cen- 
sure' ". 


CHAPTER  XL 


CONTINUED  JUDICIAL  SERVICE. 


Case  of  Tkefethen. 

James  Albert  Trefethen  was  held  for  the  murder  of 
Deltena  J.  Davis. 

The  case  was  tried  twice.  The  first  time  Trefethen  was 
convicted  of  murder  in  the  first  degree,  before  Mason,  C. 
J.,  Blodgett  and  Hammond,  Justices.  Albert  E.  Pills- 
bury,  Attorney  General,  and  Patrick  H.  Cooney,  District 
Attorney,  represented  the  government.  Ex-Govemor  John 
D.  Long  and  Marcellas  Coggin  appeared  for  the  prisoner. 

It  appeared  in  evidence  that  the  prisoner  had  been  keep- 
ing company  with  Miss  Davis  for  some  time ;  that  he  had 
borrowed  money  from  her;  and  got  her  in  a  family  way; 
that  she  was  insisting  that  he  should  marry  her,  that  he 
was  telling  her  that  he  could  not  as  he  had  another  girl  in 
the  same  trouble.  There  was  evidence  tending  to  show 
that  on  the  evening  when  she  was  drowned,  he  took  her  to 
drive  in  the  direction  of  Wellington  bridge,  over  the  Mystic 
river ;  that  the  team  came  back  with  him  alone. 

There  was  considerable  other  evidence,  all  circumstan- 
tial. Her  body  was  found  in  the  river  near  the  bridge. 
The  defendant  offered  evidence  to  prove  that  Miss  Davis 
had  said  that  she  intended  to  commit  suicide. 

This  evidence  was  excluded  on  the  authority  of  Com- 


188  SOME  EECOLLECTIONS 

monwealth  vs.  Felch,  132  Mass.  K.  22.     The  defendant 
was  convicted  of  murder  in  the  first  degree. 

The  Supreme  Judicial  Court  subsequently  sustained  the 
exception  and  granted  a  new  trial  on  account  of  the  ex- 
clusion of  this  evidence.  (See  Commonwealth  vs.  Tre- 
fethen,  157  Mass.  R.  180.) 

At  the  second  trial  the  Chief  Justice  assigned  the  fol- 
lowing judges  to  preside:  Sherman,  Dunbar  and  Braley. 
The  Attorney  General  and  P.  H.  Cooney,  represented  the 
Commonwealth.  John  D.  Long  and  William  Scofield, 
represented  the  defendant. 

In  examining  the  jurors  as  to  their  qualifications,  one 
of  them  stated  that  he  was  over  sixty-five  years  of  age. 

Governor  Long  stated  that  he  challenged  the  juror  for 
cause.  The  Attorney  General  argued  that  over  age  was  not 
a  cause  for  challenge. 

I  turned  to  Judge  Dunbar  and  asked,  "Shall  the  chal- 
lenge for  cause  be  allowed"  ?  He  answered,  "No".  I 
turned  to  Judge  Braley  and  asked  the  same  question,  and 
he  answered  in  the  same  way,  "No".  I  then  said  aloud — 
"The  challenge  for  cause  is  allowed,  the  juror  may  step 
aside".  Dunbar  supposed  that  Braley  and  I  had  decided 
adversely  to  his  opinion  and  Braley  supposed  that  Dunbar 
and  I  had  decided  adversely  to  his  opinion. 

After  court,  as  we  were  walking  home,  I  said  to  them 
by  way  of  a  joke,  "You  are  not  much  aid  in  deciding  upon 
evidence,  you  were  both  wrong  on  the  question  of  admit- 
ting that  evidence  today,  and  I  so  decided  against  both  of 
you". 

I  do  not  quote  this  circumstance  as  showing  superior 
knowledge  on  my  part,  because  they  were  both  better  law- 
yers than  I,  but  as  showing  notwithstanding  the  serious 
and  solemn  work  in  which  we  were  engaged,  I  could  in- 
dulge in  a  little  pleasantry  when  it  could  do  no  harm. 


OF  A  LONG  LIFE. 


189 


In  this  second  trial,  the  prisoner  was  found  not  guilty, 
upon  substantially  the  same  evidence  introduced  at  the 
first.  A  witness  was  allowed  to  testify  that  Miss  Davis 
told  her  a  short  time  before  the  homicide,  that  she  intended 
to  commit  suicide,  although  I  doubt  if  the  jury  believed 
the  evidence. 

This  was  one  of  those  cases  where  all  the  judges,  who 
sat  in  the  two  trials,  believed  the  man  acquitted  to  be 
guilty. 

After  the  first  trial  a  lot  of  so-called  criminal  lawyers, 
allowed  themselves  to  be  interviewed,  and  expressed  opin- 
ions, which  were  published  in  the  newspapers,  that  Tre- 
fethen  had  been  convicted  on  insufficient  evidence,  when 
they  must  have  known  that  the  case  would  probably  be 
tried  again,  such  conduct  being  reprehensible. 

Langneb''s  Case. — AUorri'ey  General  Pillsbury. 

Langner  was  indicted  for  the  murder  of  an  old  lady,  and 
the  evidence  tended  to  show  that  the  prisoner  after  having 
committed  rape  upon  her,  committed  the  murder  to  cover 
up  that  crime,  upon  the  theory  that  "Dead  men  tell  no 
tales". 

Judges  Blodgett,  Sherman  and  Fessenden  presided  at 
the  trial  in  Dedham,  in  1893. 

The  indictment  was  drawn  by  Harvey  H.  Pratt  the  dis- 
trict attorney,  and  Robert  O.  Harris,  who  succeeded  Mr. 
Pratt,  represented  the  Commonwealth  at  the  trial.  Attor- 
ney General  Pillsbury  did  not  take  part  in  the  trial,  al- 
though he  was  consulted  during  the  trial  by  the  District 
Attorney.  Mr.  Pratt  had  unwisely  alleged  in  the  indict- 
ment, that  Langner  committed  the  murder  "with  deliber- 
ately premeditated  malice  aforethought",  instead  of  fol- 
lowing the  usual  and  approved  form  of  indictment. 


190  SOME  KECOLLECTIONS 

Fales  and  Mellen  representing  the  prisoner,  claimed  and 
argued  that  the  government  having  alleged  that  the  mur- 
der was  committed  "with  deliberately  premeditated 
malice",  must  prove  it,  although  otherwise  they  would  not 
have  been  so  required. 

The  court  after  arguments  sustained  the  contention  of 
the  defence,  and  in  the  charge  to  the  jury  (which  I  de- 
livered in  behalf  of  the  Court),  the  law  was  so  ruled.  The 
jury  convicted  the  prisoner  of  murder  in  the  second  degree. 
It  was  understood  that  the  jury  stood  for  a  long  time  10 
to  2  for  conviction  of  murder  in  the  first  degree. 

The  following  correspondence  ensued: 

"Attorney  Genekal^s  Department, 
Commonwealth  Building. 

Boston,  Jan'y  4,  1894. 
My  Dear  Judge: — 

I  have  put  down  here  a  few  observations  on  the  indict- 
ment in  Langner's  case.  After  you  have  looked  them  over 
perhaps  the  Chief  Justice,  and  possibly  your  associates  at 
the  trial,  might  like  to  see  them. 

There  is  no  difficulty  in  this  question,  if  we  keep  our 
heads  clear  and  our  feet  on  the  ground.  But  I  fear  the 
truth  is  that  even  judges  are  sometimes  aifected  by  con- 
templation of  the  "solemn  consequences"  which  always 
permeate  all  proceedings  for  murder  (after  the  victim  is 

well  killed). 

If  the  courts  will  look  straight  upon  murder,  with  clear 
eyes,  as  they  look  at  other  things,  instead  of  peering  fear- 
fully at  it  around  the  corner  of  the  gallows,  we  shall  have 
no  more  Borden  rulings  or  charges,  and  murderers  will  be 
convicted. 

I  am,  as  ever, 

Yours  truly, 

A.   E.    PiLLSBUEY. 

Hon.  E.  J.  Sherman". 


OF  A   LONG  LIFE.  191 


"The  Supeeioe  Court, 

Boston,  Jan'y  4,  1894. 
My  Dear  Pillshury: 

Your  letter,  enclosing  'a  few  observations  on  the  indict- 
ment in  the  Langner's  case'  dated  the  fourth  was  duly  re- 
ceived on  the  third  instant.  You  are  ahead  of  time  in  the 
date  of  your  letter,  if  not  with  your  observations. 

I  do  not  think  a  discussion  of  the  question  suggested,  at 
this  time,  will  be  profitable,  for  two  reasons.  The  decision 
and  ruling  at  the  trial  cannot  be  recalled.  Secondly,  prob- 
ably no  district  attorney  will  copy  the  form  used  in  this 
case  in  the  future,  but  if  so,  and  the  evidence  shall  be  the 
same  as  in  this  case,  neither  he  nor  the  attorney  general 
will  hazard  the  risk  of  a  second  trial,  in  a  capital  case,  even 
if  the  presiding  justices  can  be  induced  to  rule  in  favor  of 
your  present  contention,  but  will  obtain  a  new  indictment 
in  the  usual  and  approved  form.  Your  criticism  of  the 
justices  in  another  trial  and  suggestions  of  having  justices 
preside  with  'clear  heads  and  courage'  looks  as  though 
the  'few  observations'  are  for  the  purpose  of  placing  the 
responsibility  for  a  partial  miscarriage  of  justice. 

When  the  justices  who  presided  saw  the  indictment  and 
learned  of  the  evidence,  which  was  to  be  presented  in  sup- 
port of  it,  they  made  such  examination  as  they  were  able 
to,  and  gave  careful  and  conscientious  consideration  to 
the  question  raised,  and  then  informed  the  district  attor- 
ney, that  they  desired  such  suggestions  and  aid  as  he  and 
the  attorney  general  could  give  the  court.  After  consult- 
ing with  the  attorney  general  and  an  examination  of  the 
authorities,  the  district  attorney  informed  the  court,  that 
the  attorney  general  and  he  both  feared  that  the  law  was 
as  finally  ruled  at  the  trial  and  that  they  could  give  the 
court  no  aid  or  suggestion. 

The  brief  observations,  which  you  now  submit,  would 
have  been  thankfully  received  at  that  time. 

You  have  filled  the  ofiice  of  attorney  general  with  signal 
ability,  and,  if  I  have  not  entirely  misjudged  you,  you  have 
the  strength  and  courage  to  take  all  the  responsibility 
which  belongs  to  you  for  errors  or  mistakes  in  the  adminis- 
tration of  the  duties  of  that  office. 


192  SOME  RECOLLECTIONS 


While  the  attorney  who  drew  the  indictment  takes  a 
large  share  of  the  responsibility  for  not  having  followed 
an  adjudicated  form,  I  submit  to  your  fair  and  just  con- 
sideration, whether  or  not,  the  attorney  general  who  saw 
the  indictment  and  knew  or  ought  to  have  known  the  evi- 
dence which  was  to  be  presented  in  support  of  it,  for  a  long 
time  before  the  trial,  may  not  take  upon  himself  some 
part  of  the  balance  for  not  having  obtained  a  new  indict- 
ment and  thereby  avoided  the  raising  of  at  least  a  doubt- 
ful question. 

Unless  our  relations  were  such  that  we  may  talk  frankly 
as  between  Pillsbury  and  Sherman  your  letter  would  be 
improper  and  this  letter  could  not  be  written. 

I  remain, 

Sincerely  yours, 

Edgae  J.  Sherman. 

Hon.  Albert  E.  Pillsbury, 
Attorney  General". 

(Copy  of  Pillsbury' s  reply  of  January  6,  ISOJf.). 

"Boston,  Jan'y  6,  1894. 

My  Dear  Judge: 

I  have  seldom  been  more  surprised  than  I  was  on  re- 
ceiving your  letter.  I  trouble  you  with  a  reply  to  it  prin- 
cipally in  order  to  assure  you  of  my  regret  that  I  evidently 
have  spoken  more  freely  than  your  view  of  our  cordial  re- 
lations will  warrant.  You  will  pardon  me  for  adding  one 
or  two  suggestions  which  seem  necessary  to  meet  other 
possible  misapprehensions. 

If  the  impression  was  ever  given  the  judges  that  I  re- 
garded the  questionable  words  in  the  indictment  as  mate- 
rial, it  was  an  inadvertence.  I  tried  as  hard  as  I  could 
to  persuade  Mr.  Harris  to  argue  the  question  thoroughly, 
believing  that  the  argument  would  satisfy  the  court;  but 
he  seemed  to  think  the  judges  had  so  fully  made  up  their 
minds  that  it  would  be  of  no  use,  I  have  had  but  one  opin- 
ion about  it  from  the  time  when  the  words  were  first 
noticed  and  considered  by  us,  on  the  eve  of  the  trial ;  and 


OF  A  LONG  LIFE.  193 


while  I  do  not  approve  the  form,  nor  deem  it  prudent  to 
experiment  with  new  forms  of  indictments  for  murder, 
and  while  I  am  willing  to  take  my  full  share  of  the  re- 
sponsibility for  this  indictment,  I  take  the  responsibility 
also  of  such  criticism  as  it  may  invite  in  saying  that  if  the 
peculiarity  had  been  discovered  earlier  I  should  have  taken 
no  steps  toward  a  new  indictment  in  this  case,  in  the  view 
which  I  have  always  taken  that  the  words  are  of  no  effect. 

I  sent  you  the  "observations"  without  the  remotest  idea 
that  they  or  any  comments  of  mine  on  the  case  could  possi- 
bly be  regarded  as  offensive,  and  because  I  knew  that  the 
judges  were  interested  in  the  question,  as  I  had  talked  it 
over  very  fully  with  the  chief  justice,  and  as  Judge  Blod- 
gett,  calling  on  me,  had  opened  the  subject,  and  I  had  dis- 
cussed it  somewhat  fully  with  him. 

I  hope  you  do  not  mean  all  that  your  suggestion  implies 
as  to  my  unwillingness  to  take  responsibility,  criticism  or 
blame  when  it  belongs  to  me,  and  whether  it  does  or  not. 
I  have  been  subjected  to  more  unjust  criticism  during  the 
past  twelve  months  than  any  other  man  in  Massachusetts. 
I  knew  beforehand  that  I  should  be,  and  I  have  not  cried 
out  about  it.  And  I  have  refrained  from  mentioning  this 
case  in  my  report,  as  I  might  properly  do  in  connection 
with  other  suggestions  which  I  feel  bound  to  make,  only 
because  I  am  reluctant  to  say  anything  not  absolutely 
necessary,  which  may  seem  to  involve  the  criticism  of  the 
courts  or  other  constituted  authorities. 

You  must  also  allow  me,  my  good  friend,  respectfully 
but  firmly  to  dissent  from  another  intimation  of  your  let- 
ter. I  cannot  admit  that  I  am  not  a  competent  judge  of 
what  is  proper  in  my  correspondence  with  my  friends  or 
with  public  ofiicers,  nor  that  judges  cannot  be  spoken  to  or 
even  criticised  ;  and  I  acknowledged  no  limitation  upon  the 
right  to  do  this  however  plainly,  if  civilly,  except  that  it  is 
undesirable  to  disturb  public  confidence  in  the  officers  of 
the  government  especially  in  the  judiciary.  But  my  letter 
to  you  was  not  public,  and  if  there  was  anything  uncivil  or 
discourteous  in  it  I  assure  you  it  was  not  so  intended,  and 
I  apologize  for  and  withdraw  it;  and  while  it  is  beneath 
both  you  and  me  to  bandy  compliments,  I  may  add,  since 


194  SOME  EECOLLECTIONS 

I  have  gone  so  far,  that  there  is  no  judge  on  the  bench  in 
Massachusetts  to  whom  I  should  be  so  unlikely  to  apply  any 
such  imputation  as  I  fear  you  derived  from  my  letter,  as 
to  you. 

Very  truly  yours, 

A.   E.   PiLLSBURY. 

Hon  E.  J.  Sherman". 

I  afterwards  talked  the  question  over  in  a  friendly  way 
with  Mr.  Pillsbury.  We  neither  of  us,  ''Were  convinced 
against  our  wills,  but  were  of  the  same  opinions  still". 

Since  I  have  known  Mr.  Pillsbury,  I  have  entertained 
a  high  opinion  of  him.  He  is  a  very  able  lawyer,  truthful 
and  conscientious  to  the  highest  degree,  and  a  faithful  and 
abiding  friend. 


Trial  of  Commonwealth  vs.  Patrick  Sullivan, 
Patrick  J.  Foley  and  Cornelius  I^agle,  for 

Murder. 

The  account  of  this  case  is  by  Ex-Judge  Charles  S, 
Lilley. 

In  September,  1894,  there  lived  in  the  town  of  Burling- 
ton, Massachusetts,  a  retired  farmer  named  Duroy  S.  Fos- 
ter. On  the  night  of  September  11th,  he  had  occasion  to 
visit  a  store  in  ISTorth  Woburn.  Having  transacted  the 
business  which  called  him  to  the  store  he  set  out  on  foot 
at  about  ten  o'clock  for  his  home  in  Burlington.  When  he 
had  travelled  some  distance  and  had  reached  a  point  in 
the  highway  which  was  somewhat  secluded  and  remote 
from  dwellings  he  was  stopped  by  two  men  who  gruffly  de- 
manded his  money.  Foster  was  about  fifty  years  of  age, 
tall  and  of  good  physique,  but,  seeing  that  the  men  were 


OF  A  LONG  LIFE.  195 


armed  with  revolvers  and  having  no  weapon  himself,  he 
deemed  resistance  useless,  and  handed  them  his  purse 
which  contained  about  seven  dollars.  Not  far  away  a  horse 
and  covered  wagon  stood  in  the  road.  Having  secured 
Foster's  money  the  robbers  spoke  sharply  to  some  one  in 
the  wagon,  and  walking  away  rapidly  were  followed  by 
the  team. 

At  about  half  past  ten  o'clock  Charles  H.  Nichols,  who 
lived  at  the  Mclntire  farm,  so-called,  was  aroused  by  Fos- 
ter who  informed  him  that  he  had  just  been  held  up  by 
men  with  revolvers  and  robbed  of  his  money.  Nichols 
joined  Foster  forthwith  and  the  two  went  to  the  house  of 
Henry  P.  Cox,  in  Burlington.  On  being  told  of  the  rob- 
bery and  the  direction  in  which  the  highwaymen  had  gone, 
Cox,  who  had  a  fast  horse,  promptly  volunteered  to  assist 
in  pursuing  them.  He  harnessed  his  horse  at  once  and 
accompanied  by  Foster  and  Nichols  drove  rapidly  toward 
Billerica.  Having  driven  several  miles  they  saw  a  horse 
and  covered  wagon  standing  by  the  roadside  nearly  oppo- 
site the  house  of  Mr.  Pacho  not  far  from  Billerica  Center. 
Foster  believed  this  to  be  the  same  horse  and  wagon  which 
he  saw  when  he  was  robbed,  and  he  and  his  companions 
pushed  on  to  the  house  of  Everett  W.  Livingston,  consta- 
ble of  Billerica,  arriving  there  about  midnight.  Living- 
ston was  a  good  specimen  of  the  old  New  England  town 
constable.  He  had  held  the  office  for  some  years,  had  suf- 
ficient knowledge  of  his  powers  and  duties  and  was  active 
and  courageous.  He  was  rather  spare,  but  tall  and  mus- 
cular, and  not  without  reputation  for  vigorously  enforcing 
the  law. 

With  promptitude  which  might  well  serve  as  an  example 
to  officers  making  greater  pretensions  than  this  plain  town 
constable,  Livingston,  on  hearing  Foster's  story,  put  his 
handcuffs  and  revolver  in  his  pocket  and  quickly  joining 


196  SOME  KECOLLECTIONS 

Foster,  Cox  and  Nichols  drove  to  the  Pacho  house  with 
them. 

The  horse  and  wagon  which  had  been  seen  here  had 
gone,  but  the  tracks  made  by  the  wagon  wheels  and  the 
horse's  shoes  were  plainly  visible.  The  wheel  tracks  in- 
dicated that  the  tires  of  the  wheels  were  not  of  uniform 
width,  and  the  horse's  foot-prints  showed  that  his  shoes 
were  very  long  and  narrow.  It  was  a  clear  night  and  the 
wheel  and  shoe  tracks  were  easily  traced  in  the  highway. 
Following  them  for  about  ten  minutes,  Livingston  and  his 
party  came  to  the  house  of  Mrs.  Leonard,  situated  not  far 
from  the  road  leading  from  Billerica  to  Lexington. 

Here  they  saw  a  horse  and  covered  wagon  standing  by 
the  side  of  the  road  under  some  birch  trees  opposite  the 
Leonard  house.  A  man  stood  at  the  horse's  head.  Foster 
exclaimed  "There  they  are".  Livingston,  Cox  and  I^^ichols 
alighted  quickly  and  left  Foster  in  their  carriage  to  hold 
the  horse.  Livingston  approached  the  man  who  stood  at 
the  horse's  head  by  the  roadside  and  saying,  "I  arrest  you" ! 
placed  the  muzzle  of  his  revolver  against  the  man's  breast, 
passing  his  handcuffs  to  ISTichols  at  the  same  time  and  di- 
recting him  to  secure  the  man's  wrists.  With  his  disen- 
gaged hand  Livingston  then  gripped  his  prisoner  by  the 
coat  collar.  ISTichols  was  trying  to  handcuff  the  man,  and 
Cox,  seeing  that  Livingston  was  resisted,  seized  him  by  the 
back  of  the  neck.  In  the  struggle  which  took  place,  and 
which  occupied  but  a  moment,  the  arresting  party  and 
their  prisoner  had  moved  to  the  middle  of  the  road.  In  this 
posture  of  affairs  two  men  suddenly  bounded  over  the 
stone  wall  by  the  side  of  the  road  and  opened  fire  on  the 
arresting  party  with  revolvers.  One  bullet  grazed  Living- 
ston's cheek,  others  cut  twigs  from  the  low  spreading 
branches  above  his  head.  ISTichols  and  Cox  moved  away 
slowly  toward  their  carriage.     Seeing  that  a  determined 


OF  A  LONG  LIFE.  197 


attempt  at  rescue  was  to  be  made,  and  believing,  as  well  he 
might,  that  he  was  in  great  peril,  Livingston  released  his 
hold  upon  his  prisoner,  and,  stepping  backward  a  few  paces 
under  a  brisk  fire  from  his  assailants,  fired  one  shot  at 
them.  He  tried  to  fire  again,  but  found  that  the  cylinder 
of  his  revolver  had  become  fixed,  and  that  the  weapon  was 
useless.  Then,  as  he  graphically  said  afterward,  when 
the  bullets  were  whistling  about  him,  and  he  realized  that 
he  was  defenceless,  through  the  failure  of  his  own  weapon, 
the  heart  went  out  of  him.  When  the  firing  began  Cox's 
carriage  in  which  Foster  was  still  seated  moved  up  the 
road  twenty  or  thirty  feet  beyond  the  covered  wagon.  As 
Livingston,  Cox  and  Nichols  retreated  toward  the  car- 
riage their  assailants  fired  volley  after  volley  at  them. 
iNichols  turning  to  look  at  Cox's  team  saw  the  Foster's 
head  was  hanging  over  the  seat  of  the  carriage  and  that 
the  horse  was  prancing.  He  ran  toward  the  carriage,  but 
before  he  reached  it  Foster  had  fallen  to  the  ground,  and 
on  kneeling  by  his  side  to  see  whether  he  was  injured 
Nichols  found  that  he  was  dead.  He  immediately  cried, 
"Foster  is  dead",  and  Livingston  shouted  "This  is  mur- 
der". A  bullet  had  passed  through  Foster's  brain  killing 
him  instantly,  and,  as  he  was  in  the  direct  line  of  the  fir- 
ing by  the  men  who  had  come  over  the  wall,  it  was  plain 
that  one  of  their  shots  had  caused  his  death.  The  fatal 
bullet  had  entered  his  head  about  two  and  one  half  inches 
behind  the  right  ear  making  a  jagged  opening  from  which 
blood  was  flowing  freely.  Cox's  horse,  having  become  ex- 
cited by  the  firing  and  now  being  free  from  control,  dis- 
appeared up  the  road,  and,  with  the  carriage,  was  found 
in  North  Lexington  the  next  night.  At  the  cry  of  "mur- 
der" Livingston's  prisoner  and  his  two  rescuers  sprung 
into  the  covered  wagon  and  lashing  their  horses  drove 
swiftly  away  in  the  direction  of  Billerica  Center.    Living- 


198  SOME  RECOLLECTIONS 

ston  followed  on  foot  and  kept  the  wagon  in  view  for  some 
distance  when  owing  to  the  turn  in  the  road  it  was  lost  to 
sight.  As  he  ran  he  observed  that  several  horse  collars, 
and  other  parts  of  harnesses,  and  a  carriage  robe  were 
scattered  along  the  highway.  As  these  were  not  in  the 
road  when  he  drove  to  the  Leonard  house,  and  as  no  one 
had  passed  in  either  direction  in  the  meantime,  it  was  evi- 
dent that  they  were  thrown  from  the  wagon  in  its  flight. 
Pressing  on  Livingston  soon  reached  Billerica  Center. 
There  he  secured  a  horse  and  carriage  at  once,  and  sum- 
moning to  his  assistance  two  townsmen,  George  B.  Smith 
and  James  E.  Coulter,  he  resumed  the  pursuit.  Smith 
was  armed  with  a  revolver  and  Coulter  with  a  double- 
barrelled  shot  gun. 

The  noise  made  by  the  fleeing  wagon,  driven  at  great 
speed  and  creaking  and  rattling  from  age  and  wear,  was 
still  audible  in  the  quiet  of  the  night.  Guided  by  the  sound 
Livingston  soon  found  the  peculiar  wheel  tracks  and 
hoof-prints  which  had  led  him  to  the  Leonard  house,  and 
followed  them  until  they  were  lost  in  Woburn  where  the 
ground  was  so  hard  that  passing  teams  left  no  traces. 
Livingston  and  his  companions  then  returned  to  Billerica 
Center  spreading  the  alarm  to  the  countryside  on  their 
way. 

Later  the  horse  collars,  parts  of  harnesses  and  other 
things  which  Livingston  had  seen  in  the  highway  as  he 
pursued  the  covered  wagon,  immediately  after  the  shoot- 
ing near  the  Leonard  house,  were  picked  up  and  taken  to 
the  Stearns  House,  a  public  house  in  Billerica. 

On  the  night  of  September  11th,  Benjamin  Spalding, 
who  lived  in  Billerica,  nearly  opposite  the  Pacho  house, 
saw  that  his  barn  was  in  order  and  securely  locked,  and 
went  to  bed  at  about  nine  o'clock.  Rising  very  early  the 
next  morning,  he  found  that  the  barn  had  been  entered  and 


OF  A  LONG  LIFE.  199 


that  three  horse  collars,  a  single  harness,  a  carriage  robe, 
and  a  bag  of  oats,  which  he  had  left  in  their  proper  places, 
had  been  stolen.  He  found  his  horse  collars,  harness  and 
robe  among  the  articles  which  had  been  taken  to  the 
Stearns  house. 

In  the  morning  of  September  12th,  it  was  discovered 
that  the  barn  of  Mrs.  Noyes,  which  was  not  far  from  the 
Leonard  house,  had  been  broken  into  during  the  night  and 
that  certain  harnesses,  a  part  of  a  saddle,  a  blanket,  and  a 
half  barrel  of  cracked  corn  had  been  taken  away.  Some 
of  these  articles  were  found  among  those  at  the  Stearns 
house. 

As  may  be  supposed,  highway  robbery,  larceny  from 
buildings  in  the  night-time,  and  murder  in  quiet  country 
towns  of  Middlesex  County,  noted  for  the  peaceful  and 
law-abiding  character  of  their  inhabitants,  deeply  aroused 
and  agitated  the  whole  community.  As  the  news  spread  on 
the  twelfth  of  September,  many  journeyed  to  the  scene  of 
the  murder  from  far  and  near,  and  Billerica,  awakened 
from  its  usual  calm,  became  the  centre  of  public  interest. 

A  reward  was  offered  and  extraordinary  efforts  were 
made  by  state,  city  and  town  officers  for  the  discovery  and 
capture  of  the  criminals. 

At  the  time  when  he  approached  the  man  who  stood  at 
the  horse's  head  near  the  Leonard  house,  Livingston  ob- 
served that  the  horse  was  small  and  that  his  harness  fitted 
him  loosely,  the  collar  and  hames  being  much  too  large. 
After  the  covered  wagon  had  driven  away  with  Livingston 
in  pursuit,  Cox,  who  was  a  horseshoer  by  occupation,  care- 
fully examined  the  tracks  made  by  the  horse's  hoofs  and 
was  again  struck  by  the  peculiar  shape  of  the  shoes,  having 
seen  few  in  his  experience  that  were  so  long  and  narrow. 
It  was  evident  then  that  the  first  thing  to  be  done  was  to 


200  SOME  KECOLLECTIONS 

find  a  covered  wagon  having  wheels  with  tires  of  unequal 
vddth,  and  a  small  horse  with  long  and  narrow  shoes. 

Searching  parties  explored  the  country  to  the  south  and 
east  of  Woburn,  some  going  by  one  highway,  and  some  by 
another.  It  was  soon  found  that  at  about  three  o'clock  in 
the  morning  of  September  12th,  a  small  horse  drawing  a 
covered  wagon  was  seen  passing  through  Stoneham  in  the 
direction  of  Melrose  Highlands  on  the  road  usually  taken 
for  Somerville;  that  an  hour  later  a  team  of  like  descrip- 
tion was  seen  passing  through  the  square  at  Maiden.  The 
wagon  seen  in  Maiden  had  the  name  "P.  Sullivan"  painted 
on  its  side,  and  it  was  observed  that  the  rear  wheels  were 
apparently  older  than  the  front  ones,  and  that  the  latter 
were  unusually  small  for  a  vehicle  like  that  to  which  they 
were  attached.  Mile  by  mile  the  course  of  the  team  was 
traced  from  Maiden,  until  finally  the  wagon  was  found  in 
a  yard  in  Somerville.  On  the  top  of  its  cover  there  were 
several  long  scratches  in  the  dust  which  had  lodged  there. 
These  scratches  appeared  to  have  been  made  by  overhang- 
ing branches,  and  caught  along  the  sides  of  the  wagon  there 
were  fresh  pine  needles.  It  was  found  that  the  wagon  be- 
longed to  Patrick  Sullivan  of  Somerville,  and  on  the  night 
of  September  12th,  he  was  taken  into  custody.  His  arrest 
was  immediately  followed  by  that  of  Patrick  J.  Foley  and 
Cornelius  ISTagle,  both  of  Somerville.  Thus  within  twenty- 
four  hours  from  the  time  of  Foster's  death  the  men  who 
were  charged  with  his  murder  were  in  the  hands  of  the 
officers  of  the  law,  who  diligently  pursued  their  investiga- 
tion which  brought  to  light  the  following  facts :  Sullivan, 
Foley  and  !Nagle  were  related  by  marriage,  and  were  in  the 
habit  of  meeting  frequently.  Sullivan  was  twenty-eight 
years  old,  Foley  was  twenty-six,  and  l^agle  was  younger 
than  the  latter.  Sullivan  owned  a  small  horse,  variously 
described  as  a  mustang,  a  broncho,  and  a  pony,  having 


OF  A  LONG  LIFE.  201 


shoes  that  were  long  and  narrow,  and  in  his  stable  there 
was  a  harness,  which  being  put  upon  the  horse,  was  found 
to  fit  him  loosely,  the  collar  and  hames  being  much  too 
large.  Sullivan  was  engaged  in  a  small  express  and  job- 
bing business.  Early  in  the  evening  of  September  11th, 
he  detached  the  front  wheels  of  his  wagon  and  put  in  their 
place  a  pair  of  smaller  wheels  which  he  had  borrowed 
from  James  E.  McGaffigan,  a  fruit  peddler  of  Somerville, 
McGaffigan's  wheels  were  red  and  freshly  painted  and 
were  in  marked  contrast  to  Sullivan's  rear  wheels,  which 
were  old  and  dingy.  In  answer  to  a  question  by  Mc- 
Gaffigan, when  he  borrowed  the  latter's  wheels,  Sullivan 
said  that  he  was  going  to  I^ewton  that  night.  At  about 
eight  o'clock  in  the  evening,  Sullivan  harnessed  his  horse 
with  the  collar  and  hames  harness,  and,  taking  his  covered 
wagon,  drove  to  a  store  in  Somerville  where  he  met  Foley 
and  !N'agle,  who  got  into  the  wagon  with  him,  and  the  three 
men  set  out  on  their  sinister  expedition.  Their  precise 
course  was  not  ascertained,  but  the  team  was  seen  in 
Woburn  by  a  police  officer  at  about  nine  o'clock.  It  was 
driven  to  the  side  of  the  street,  and  the  officer  saw  Sullivan, 
Eoley  and  Nagle  alight  from  the  wagon  and  enter  a  neigh- 
boring barroom,  where  they  remained  for  about  twenty 
minutes  and  then  drove  off  at  a  smart  trot  toward  North 
Woburn.  They  were  seen  later  by  Francis  H.  Marion,  a 
young  man  about  eighteen  years  of  age,  living  with  his 
father  in  Burlington.  He  attended  a  temperance  meeting 
at  the  church  in  that  town  on  the  night  of  the  11th  of 
September.  As  the  meeting  was  somewhat  protracted,  he 
did  not  leave  for  home  until  about  ten  o'clock.  As  he  was 
walking  by  the  side  of  the  road  leading  to  Billerica,  at 
about  twenty  minutes  past  ten,  he  saw  on  the  crest  of  an 
elevation  in  the  highway  a  team  coming  toward  him.  He 
continued  on  his  way  and  as  the  team  passed  him  he  saw 


202  SOME  EECOLLECTIOiS"S 

that  the  horse  was  small,  that  he  had  a  loose-fitting  harness 
with  collar  and  hames,  that  the  wagon  was  a  covered  wagon 
and  that  there  was  a  man  on  the  driver's  seat.  He  then 
saw  two  men  advancing  on  foot.  One  of  them,  whom  he 
afterward  identified  as  Foley,  approached  him,  and  assum- 
ing a  threatening  aspect,  drove  him  into  the  middle  of  the 
road.  Quickening  his  pace,  Marion  soon  met  Foster,  whom 
he  knew  well.  Foster  was  on  foot  and  seemed  to  be  much 
excited.  Stopping  for  a  moment  only  to  exchange  a  word 
or  two  with  Marion,  he  went  on,  apparently  intent  upon 
following  the  team  and  the  two  men. 

An  indictment  was  found  by  the  grand  jury  for  Middle- 
sex County  in  which  Sullivan,  Foley  and  i^Tagle  were 
charged  with  murder  in  the  first  degree,  and  a  special 
session  of  the  Superior  Court  for  that  county  was  ordered 
for  their  trial.  This  session  was  opened  at  Lowell  on 
Monday,  June  3d,  1895,  Justices  Sherman  and  Lilley 
presiding.  The  late  Hosea  M.  Knowlton,  Attorney  Gen- 
eral, and  Fred  IST.  Wier,  District  Attorney  for  the  northern 
district,  appeared  for  the  Commonwealth. 

Samuel  K.  Hamilton  of  Wakefield,  a  leading  member  of 
the  Middlesex  Bar,  appeared  for  Foley,  having  been  as- 
signed to  his  defence  by  the  court,  and  the  late  Francis  P. 
Curran  of  Woburn,  represented  Sullivan  and  l!^agle.  The 
accused  had  been  previously  arraigned  and  had  entered 
pleas  of  "not  guilty". 

Some  two  hundred  or  more  citizens  of  the  county  had 
been  summoned  for  service  as  jurors,  and  on  motion  of 
the  Attorney  General,  the  Court  proceeded  to  impanel  the 
jury.  Each  of  the  prisoners  had  the  right  to  challenge 
twenty-two  of  the  jurors  peremptorily,  and  as  many  more 
as  he  could  show  cause  for  challenging,  and  the  government 
had  the  like  right  of  challenge.  The  work  of  selecting  a 
jury  was  attended  with   some  difiiculty  and  delay,   the 


OF  A  LONG  LIFE.  203 


prisoners  as  well  as  the  Commonwealth  exercising  the 
right  of  challenge  freely.  Many  of  the  jurors,  too,  were 
excused  from  service  by  the  Court,  some  upon  the  ground 
that  they  were  opposed  to  capital  punishment,  some  for 
the  reason  that  they  had  formed  an  opinion  as  to  the  guilt 
of  the  accused,  some  because  of  bodily  infirmities,  and 
some  because  they  were  exempt  by  law  from  jury  service. 
In  view  of  some  of  the  grounds  for  exemption  from  ser- 
vice that  were  urged  upon  the  Court,  the  senior  Justice 
was  moved  to  say  that  he  was  reminded  of  the  story  about 
the  man  who  was  summoned  for  jury  duty  in  a  'New 
Hampshire  court,  and  who,  when  his  name  was  called,  told 
the  presiding  Justice  that  he  was  very  deaf  and  couldn't 
hear  a  word  of  the  testimony  if  he  were  to  serve  as  a 
juror.  The  Judge  excused  him  at  once,  whereupon  the 
clerk  of  the  court  said  "Why,  your  Honor,  I  know  that 
man  well  and  he  is  no  more  deaf  than  I  am".  "Never 
mind  Mr.  Clerk",  said  the  Judge,  "if  he's  deaf  we  don't 
want  him,  and  if  he's  a  liar  we  don't  want  him".  The 
senior  Justice  took  pains  to  add,  with  a  suspicious  twinkle 
in  his  eye  however,  that  of  course  the  story  had  no  appli- 
cation to  matters  then  under  consideration.  The  list  of 
those  who  had  been  summoned  for  jury  duty  was  ex- 
hausted before  the  array  was  completed,  and  the  sheriff 
was  ordered  to  bring  in  talesmen  with  the  result  that  on 
the  next  day  some  thirty  or  forty  substantial  citizens, 
taken  from  their  usual  occupations  at  short  notice,  were 
presented  to  the  court  as  more  or  less  unwilling  candi- 
dates for  places  on  the  panel.  From  these  men  the  num- 
ber of  jurors  still  required  was  soon  chosen.  Horace  Ela, 
a  grocer  of  Lowell,  who  had  been  summoned  by  the  sher- 
iff in  the  street  as  he  was  making  his  rounds  with  his  de- 
livery wagon,  was  appointed  foreman  by  the  court,  and. 


204  SOME  RECOLLECTIONS 

the  usual  formalities  being  observed,  the  District  Attor- 
ney outlined  the  Commonwealth's  case  to  the  jury. 

The  trial  proceeded  without  serious  interruption  or  un- 
usual incident,  save  the  brief  illness  of  one  of  the  jurors, 
and  the  sudden  collapse  of  Foley's  wife  on  the  witness 
stand  as  she  was  testifying  to  her  husband's  whereabouts 
on  the  night  of  September  11th  and  12th,  until  Thursday, 
June  13th,  when  late  at  night  the  jury  returned  a  verdict 
of  guilty  of  murder  in  the  second  degree  as  to  each  of  the 
prisoners.  The  Commonwealth  contended  that  the  ac- 
cused left  Somerville  on  the  night  of  September  11th, 
with  the  common  purpose  to  go  into  the  country  and  steal 
from  buildings,  and  to  resist  any  interference  with  or 
opposition  to  their  unlawful  enterprise  to  the  extent  of 
killing  such  person  or  persons  as  might  interfere  with,  op- 
pose, or  attempt  to  detain  them  if  necessary  for  their  own 
security,  or,  that  if  their  original  plan  did  not  contem- 
plate the  killing  of  such  person  or  persons  as  might  inter- 
fere with  or  oppose  them,  that  at  the  time  of  the  shooting 
near  the  Leonard  house  they  were  resisting  a  lawful  arrest 
of  which  they  had  reasonable  notice,  and  then  formed  the 
purpose  to  carry  their  resistance  to  the  point  of  killing 
some  one  or  more  of  the  arresting  party  if  their  escape 
could  not  otherwise  be  effected,  and  that  they  were  so  co- 
operating in  the  execution  of  that  purpose  when  Foster 
was  killed. 

Counsel  for  the  prisoners  combated  these  contentions 
vigorously  and  ably,  overlooking  nothing  which  told  in 
favor  of  their  clients. 

Because  of  some  of  its  peculiar  circumstances  the  case 
excited  no  little  public  interest,  and  the  court  room  was 
crowded  from  day  to  day,  the  attendance  being  very  large 
as  the  time  approached  for  the  closing  argument  of  the 
Attorney  General.    His  fame  as  a  la^vyer  and  eloquent  ad- 


OF  A  LONG  LIFE.  205 


vocate  had  gone  abroad,  and  those  who  came  to  hear  him 
were  not  disappointed.  His  argument  was  worthy  of  his 
reputation. 

The  defence  was  an  alibi,  the  prisoners  asserting  that 
they  spent  the  entire  night  of  the  11th  and  12th  of  Sep- 
tember in  Somerville.  Many  questions  of  law  were  dis- 
cussed at  the  trial  and  numerous  exceptions  were  taken  to 
the  rulings  of  the  presiding  Justices. 

Justice  Sherman  directed  the  course  of  the  trial,  and 
Justice  Lilley  delivered  the  charge  to  the  jury. 

Many  of  the  exceptions  to  the  rulings  of  the  Justices 
were  finally  waived,  but  some  of  them  were  pressed  and 
argued  before  the  full  bench  of  the  Supreme  Judicial 
Court,  in  November,  1895,  and  were  overruled  in  Janua- 
ry, 1896.  The  case  is  reported  in  volume  165,  of  the 
Massachusetts  Reports,  at  page  183. 

Upon  the  coming  do%vn  of  the  rescript  overruling  the 
exceptions  the  Commonwealth  moved  for  sentence  in  the 
Superior  Court,  and  each  of  the  prisoners  was  sentenced 
to  imprisonment  for  life  in  the  Massachusetts  state  prison. 


CHAPTER  XIL 


CONTmUED  JUDICIAL  SERVICE. 


Commonwealth  vs.  Feanciszek  Umilian  foe  the 

MUKDEE   OF   KaZINNEY   JeDEUSIK. 

This  case  was  tried  at  l^orthampton  before  Justices 
Sherman  and  Stevens,  October,  1900.  District  Attorney 
John  C.  Hammond  appeared  for  the  government  and  J. 
B.  O'Donnell  represented  the  prisoner. 

This  case  is  interesting  as  there  is  so  much  similiarity 
between  it  and  the  case  of  John  C.  Best  (see  page  208). 
Umilian  and  Jedrusik  were  farm  hands  working  for  Mr. 
Munroe  Keith  at  Granby.  Umilian  was  foreman  and 
Jedrusik  second  hand.  Umilian  was  engaged  to  one, 
Rosa,  who  did  house  work  in  the  same  family.  Umilian 
and  Rosa  went  to  Chicopee  to  be  married  by  a  polish 
priest.  The  priest  showed  Umilian  a  letter  in  which  it 
was  stated  that  Umilian  was  a  married  man  and  had  a 
wife  and  two  children  in  Russia.  The  priest  sent  Umilian 
back  to  Granby  with  a  trusted  person  to  clear  up  the  letter 
and  obtain  a  marriage  license. 

When  they  reached  Keith's  house  Jedrusik  owned  up 
that  he  and  some  other  young  men  had  sent  that  letter  as  a 
joke.  Umilian  obtained  his  marriage  license  with  the  ex- 
planation that  the  letter  was  a  joke,  went  back  to  Chicopee 
and  was  married,  but  he  was  very  angry  and  grew  more 
and  more  so  as  time  went  on,  swearing  "That  he  would 


OF  A  LONG  LITE.  207 


kill  Jedrusik  and  throw  his  head  to  the  hogs".  He  made 
many  violent  threats  of  similiar  kind.  Umilian  and 
Jedrusik  both  continued  on  the  farm,  although  Umilian 
would  not  forgive  Jedrusik,  or  have  anything  to  do  with 
him.  Umilian's  wife  tried  to  make  peace  and  have  her 
husband  be  friends  with  Jedrusik,  but  it  was  of  no  use. 
Perhaps  on  that  account  he  became  somewhat  jealous  of 
Jedrusik. 

One  Sunday  morning,  January  31,  1899,  after  the 
family  had  gone  to  church,  leaving  Umilian,  wife  and 
Jedrusik  at  home,  the  two  men  went  to  the  barn  to  do  the 
chores.  Jedrusik  disappeared  and  was  never  again  seen 
alive.  Umilian  stated  that  after  the  work  was  done  at  the 
barn  Jedrusik  went  off  in  the  direction  of  the  village. 

The  wife  acted  very  unhappy  as  if  she  believed  that 
her  husband  had  had  something  to  do  with  Jedrusik's  dis- 
appearance, but  she  said  nothing. 

On  April  10,  1900,  a  green  foreign  boy,  who  was  work- 
ing with  Umilian  in  the  field,  saw  Umilian  go  to  an  old 
unused  well,  lift  up  a  large  flat  stone  which  completely 
covered  it,  and  look  down  into  the  well,  after  which  he 
placed  the  stone  back  in  position.  The  boy  subsequently 
told  Mr.  Keith  of  this  incident.  The  officers  then  ex- 
amined the  well,  and  found  the  body  of  Jedrusik  tied  up 
in  a  bag,  weighted  with  stones,  the  arms  and  legs  tied  up 
in  another  bag  also  weighted  with  stones,  but  the  head 
could  not  be  found.  Remembering  Umilian's  threats  that 
he  would  kill  Jedrusik  and  throw  his  head  to  the  hogs, 
the  hog  pen  was  carefully  cleared  and  down  deep  in  the 
bottom  the  head  was  found. 

Umilian  was  then  arrested,  the  case  was  tried  upon  cir- 
cumstantial evidence  which  was  very  strong  and  conclu- 
sive against  the  prisoner. 

He  testified  in  his  own  behalf,  and  called  his  wife  as 


208  SOME  KECOLLECTIONS 

a  witness ;  in  this  he  was  unfortunate.  She  seemed  to  try 
to  help  him,  but  she  knew  many  important  things  which 
were  against  him  and  she  acted  very  much  as  though  she 
believed  her  husband  had  killed  Jedrusik. 

I  never  heard  a  case  tried  like  this ;  no  objections  or  ex- 
ceptions were  taken  during  the  trial.  O'Donnell  asked  the 
court  to  rule  that  there  was  not  sufficient  evidence  to  con- 
vict the  prisoner.  This  ruling  being  refused  an  exception 
was  saved. 

I  charged  the  jury,  which  charge  was  entirely  satisfac- 
tory to  O'Donnell.  A  verdict  of  guilty  was  returned  of 
murder  in  the  first  degree.  The  case  was  taken  to  the 
Supreme  Court,  which  overruled  the  exceptions  (see  Com. 
vs.  Umilian,  177  Mass.  R.  582). 

It  became  my  duty  to  pass  the  sentence  of  death,  that 
the  prisoner  be  electrocuted,  July  7,  1901,  which  sentence 
was  carried  into  execution  after  the  Governor  and  Council 
had  refused  a  petition  to  commute  the  sentence  to  im- 
prisonment for  life. 

The  trial  of  John  C.  Best  for  the  murder  of  George  E. 
Bailey,  tried  before  Justices  Sherman  and  Fox,  at  Salem, 
in  March,  1901,  was  an  exceedingly  interesting  case,  and 
particularly  so,  because  it  was  one  of  the  most  satisfactory 
and  conclusively  proven  cases  of  circumstantial  evidence 
ever  tried  in  this  Commonwealth.  Attorney  General  H. 
M.  Knowlton,  District  Attorney  W.  Scott  Peters  and  Ro- 
land H.  Sherman,  Assistant  District  Attorney,  represented 
the  government  and  James  H.  Sisk  and  N.  A.  Clarke  ap- 
peared for  the  prisoner. 

George  E.  Bailey  was  foreman  on  a  farm  in  Saugus, 
called  the  Breakheart  Hill  Farm,  owned  by  certain  gen- 
tlemen, who  used  it  as  a  farm  for  camping  and  hunting. 
Best  was  employed  as  a  farm  hand  on  the  same  farm. 


OP  A  LONG  LIFE.  209 


The  only  other  person  on  the  farm  was  Susie  L.  Young, 
Bailey's  wife's  half  sister. 

While  Susie  Young  was  away  on  a  visit  in  Maine, 
Bailey  disappeared.  Best,  the  only  person  remaining,  re- 
ported "That  Bailey  had  skipped" — run  away. 

There  had  been  ill  feeling  between  Bailey  and  Best  for 
some  time.  Bailey  and  Susie  Young  had  been  living  to- 
gether in  adultery,  and  Best  knew  this.  Best  had  made 
love  to  Susie,  but  she  remained  loyal  to  Bailey.  Bailey 
went  home  to  the  farm  one  evening  and  never  was  seen 
alive  afterwards.  Some  nine  days  after  a  bag  was  dis- 
covered floating  in  the  water  near  Floating  Bridge  in 
Lynn,  six  miles  away  from  the  Breakheart  Hill  Farm.  It 
contained  the  trunk  of  a  human  body.  Upon  dragging 
the  pond  all  the  parts  of  the  body  were  found,  and  it 
proved  to  be  the  body  of  Bailey. 

Some  of  the  circumstantial  evidence  was  as  follows: — 
Best  stated  that  Bailey  came  home  a  little  before  eight 
o'clock,  put  up  his  horse,  and  then  disappeared.  There 
were  found  in  Bailey's  body  near  the  heart,  two  bullets, 
which  caused  his  death.  It  appeared  that  those  bullets 
were  fired  from  a  Winchester  rifle — wider  and  with  dif- 
ferent groove  from  other  rifles — which  grooves  leave  their 
imprint  on  the  bullets;  the  bullets  also  showed  another 
mark.  Best  was  an  excellent  marksman,  he  owned  a  Win- 
chester rifle  which  was  kept  at  the  farm.  That  rifle  had 
a  rust  mark  inside,  which  caused  a  mark  on  a  bullet  ex- 
actly like  the  ones  found  on  the  bullets  in  Bailey's  body. 
At  just  before  eight  o'clock  on  the  night  of  Bailey's  dis- 
appearance, two  shots  in  quick  succession  had  been  heard 
coming  from  the  farm. 

The  four  or  five  bags  in  which  the  body  had  been  put, 
after  being  cut  into  parts,  were  the  same  kind  with  the 
same  marks  used  at  the  farm.     The  bags  were  weighted 


210  SOME  RECOLLECTIONS 

with  stones  and  when  the  bags  and  stones  were  brought 
back  to  the  farm,  the  stones  fitted  right  into  the  bank 
wall,  where  they  or  ones  just  like  them  had  recently  been 
removed. 

A  wagon  with  a  peculiar  rattle,  known  to  the  neighbors, 
which  had  been  used  on  the  farm  for  a  long  time,  was 
heard  to  pass  the  houses  of  the  neighbors  between  nine 
and  ten  o'clock  that  night,  going  towards  Floating  bridge 
pond,  and  two  hours  afterwards  returning  home.  This 
wagon  with  something  in  it  covered,  which  looked  like 
dead  hogs  was  seen  going  towards  the  pond,  and  a  short 
time  after  it  was  seen  empty  returning. 

Evidence  was  given  of  hearing  the  same  wagon  drive 
do^vn  on  to  Floating  bridge,  stop  a  short  time,  turn 
around  and  come  back;  that  when  it  went,  it  had  some- 
thing covered  up  in  the  body  of  the  wagon  and  when  it 
came  back  it  was  empty. 

The  government,  during  the  trial,  had  learned  that 
Best's  brother-in-law,  one  William  H.  Stiles,  had  a  burn- 
ing secret — important  evidence  against  the  prisoner — but 
they  did  not  know  what  it  was.  Best  had  told  it  to  this 
brother-in-law  and  he  was  frightened  at  learning  such  a 
secret,  as  it  convinced  him  that  Best  was  guilty  of  the 
murder.  So  he  could  not  keep  it.  He  told  it  to  a  friend 
with  a  promise  from  that  friend  not  to  divulge  it,  but 
that  friend  could  not  keep  it.  It  was  at  last  learned  by 
the  government. 

Stiles  took  the  stand  and  testified  that  he  went  to  the 
Salem  jail,  saw  the  prisoner  and  he  gave  him  a  plan  of 
the  cellar  under  the  Breakheart  Hill  barn,  told  him  to 
go  there  to  a  place  marked  by  an  X  under  the  sill  of  the 
barn;  he  could  find  a  paper,  take  it,  keep  the  money  and 
go  with  the  watch  at  low  tide  and  throw  it  as  far  as  he 
could  into  the  ocean;  for,  said  the  prisoner,  "If  they  find 


OF  A  LONG  LIFE.  211 


the  watch  they  will  hang  me".  Stiles  said  he  never  went 
to  the  bam.  The  next  morning  one  of  the  officers  testi- 
fied, that  since  the  night  before  he  had  been  to  the  barn 
and  found  the  bundle  as  described  by  Stiles,  and  produced 
it  in  court.  It  contained  $75.00  in  money  and  bills,  and 
Bailey's  watch. 

When  the  evidence  was  concluded  and  the  trial  finished 
the  jury  found  the  prisoner  guilty  of  murder  in  the  first 
degree.  It  was  a  clear  case ;  there  could  be  no  reasonable 
doubt  about  the  prisoner's  guilt. 

The  prisoner  had  three  motives  for  committing  the 
murder : — 

1.  He  was  infatuated  with  Susie  Young,  and  he 
thought  if  he  could  make  her  believe  that  Bailey  had  run 
away,  deserted  her,  that  she  would  consent  to  become  his 
wife  or  mistress. 

2.  He  believed  that  Bailey  had  about  $500,  which  he 
could  secure.  He  was  mistaken  about  the  amount  which 
Bailey  had. 

3.  He  believed  that  the  owners  of  the  farm  would 
make  him  foreman  if  he  could  make  them  believe  that 
Bailey  had  run  away. 

This  case  shows  how  the  devil  helps  a  man  into  crime 
but  never  helps  him  out.  If  Best  had  known  what  most 
Indians  know,  that  in  order  to  cause  a  human  body  to  sink 
under  the  water  and  remain  there,  you  must  cut  open  the 
bowels,  otherwise  the  gases  will  form,  and  the  body  will 
rise  to  the  top  of  the  water.  This  trunk  of  the  body  was 
weighted  with  a  stone  weighing  forty  pounds.  As  soon 
as  the  gases  had  time  to  form,  the  body  rose  to  the  top  of 
the  water. 

If  the  bowels  had  been  opened  the  body  would  have  re- 
mained at  the  bottom  of  the  pond,  and  very  likely  this 
murder  never  discovered. 


212  SOME   RECOLLECTIONS 


The  case  was  taken  to  the  Supreme  Court  on  exceptions, 
and  after  full  hearing  they  were  overruled.  (See  Com- 
monwealth vs.  John  C.  Best,  180  Mass.  R.  492.) 

Subsequently  a  motion  was  filed  before  Justices  Sher- 
man and  Fox  to  set  aside  the  verdict  and  grant  the  pris- 
oner a  new  trial,  because  one  of  the  jurors  who  sat  in  the 
trial  was  partially  deaf.  This  motion  was  heard  and 
overruled. 

The  case  was  taken  to  the  Supreme  Court  a  second  time 
on  exceptions.  The  exceptions  were  overruled  by  that 
court.  (See  Commonwealth  vs.  John  C.  Best,  181  Mass. 
K.  545.)  It  then  became  my  duty  to  sentence  the  pris- 
oner to  be  executed.  A  petition  was  presented  to  the  Gov- 
ernor and  Council  to  commute  the  sentence  to  imprison- 
ment for  life,  which  was  refused.  He  was  executed  in 
accordance  with  the  sentence,  September  9,  1902. 

The  two  cases  just  described  were  remarkable  as  being 
so  similiar.  One,  the  case  of  Umilian,  was  committed  in 
Granby,  Hampshire  County,  January  31,  1899,  the  other, 
the  case  of  Best,  was  committed  in  Saugus,  in  Essex 
County,  October  8,  1900.  Both  were  farm  hands  and 
they  killed  farm  hands  working  with  them.  Each  cut  in 
pieces  his  victim  with  an  axe,  put  the  body  in  a  bag, 
weighted  with  stones,  put  the  arms  and  legs  in  another 
bag,  weighting  that  with  stones;  each  put  the  bags  under 
water,  one  in  an  old,  unused  well,  the  other  in  a  pond. 


Commonwealth  vs.  Loeenzo  W.  Babnes  fok  the 

MUKDEE  OF  one  JohN  DeAKE. 

The  case  was  tried  before  Blodgett  and  Dewey,  Justices, 
March,  1897.  FN".  Wier,  District  Attorney,  George  A. 
Sanderson,   Assistant   District  Attorney,   for   the   govern- 


OF  A  LONG  LIFE.  213 


ment;  John  L.  O'Neil  and  John  C.  Burke  appeared  for 
the  prisoner. 

The  prisoner  was  convicted  of  murder  in  the  first  de- 
gree. When  the  time  for  sentence  arrived,  the  govern- 
ment applied  to  Mr.  Justice  Blodgett,  who  was  holding 
court  in  Boston. 

Judge  Dewey  was  then  engaged  in  the  western  part  of 
the  state;  Judge  Blodgett  said  that  it  was  an  unpleasant 
duty,  and  that  there  was  no  reason  why  he  should  leave 
his  court  in  Boston  and  go  to  East  Cambridge  to  pass  the 
sentence,  as  there  was  another  judge  holding  the  criminal 
session  there,  who  should  perform  that  duty.  The  gov- 
ernment then  applied  to  that  judge.  He  replied  that  as  a 
lawyer  he  had  never  been  engaged  in  a  murder  trial ;  that 
he  had  never  seen  or  heard  a  man  sentenced  to  death ;  and 
that  it  did  not  seem  to  him  that  he  could  possibly  pass  the 
sentence.  The  Chief  Justice  intimated  to  him  that  it 
seemed  to  "fall  to  his  lot",  to  be  his  duty  to  perform  the 
ceremony,  and  as  I  was  at  the  time  holding  civil  session 
in  East  Cambridge,  and  as  I  had  had  a  large  experience 
in  such  cases,  perhaps  he  could  induce  me  to  help  him. 

He  then  applied  to  me,  telling  me  that  he  should  die  in 
attempting  such  an  ordeal.  I  told  him  he  should  not  re- 
gard such  a  duty  as  personal,  that  he  was  only  one  of  the 
cogs  in  the  machinery  of  state  to  carry  out  the  execution 
of  the  law.  I  gave  him  the  form  of  sentence  and  told  him 
I  would  go  into  court  with  him  and  aid  him  with  my 
presence  and  counsel.  He  expressed  himself  as  very 
thankful. 

The  next  morning  we  went  into  court  together,  which 
was  opened  in  solemn  form.  There  sat  the  convict, 
Barnes  in  the  dock,  pale  and  haggard.  As  I  looked  at  the 
prisoner  and  at  my  associate,  it  was  doubtful  which  was 
suffering  the  more.     As  the  judge  appealed  to  me  for  the 


214  SOME  EECOLLECTIONS 

last  time  I  could  not  refuse,  so  I  pronounced  the  sentence, 
and  the  sad  and  painful  ceremony  was  over. 

In  case  of  Commonwealth  vs.  Alfred  C.  Williams,  tried 
in  Salem  before  Dunbar  and  Braley,  Justices,  in  Febru- 
ary, 1898,  there  was  a  conviction  of  murder  in  first  degree. 
The  case  was  taken  to  the  Supreme  Court.  (See  Common- 
wealth vs.  Alfred  C.  Williams,  171  Mass.  R.  461.) 

I  was  holding  court  in  Salem  at  the  time  of  sentence, 
and  was  asked  to  pass  sentence  by  the  Chief  Justice,  which 
I  did. 


The  Teial  of  Commonwealth  vs.  Chaeles  L.  Tuckee, 

FOE  THE  MUEDEE  OF  MaBEL  PaGE. 

On  March  31,  1904,  Mabel  Page  was  found  murdered 
in  the  house  of  her  father  in  the  town  of  Weston.  She 
was  left  in  the  house  alone,  and  was  murdered  between 
eleven  and  one  o'clock  in  the  day  time. 

The  house  was  in  plain  view  of  other  houses  in  the 
vicinity.  As  soon  as  the  murder  was  made  known  the 
officers  of  the  law  commenced  an  investigation.  'No  cause 
for  the  murder  could  be  discovered.  Miss  Page  was  a 
young  woman  of  excellent  character.  The  public  was  a 
good  deal  excited.  The  Boston  American,  owned  by  Mr. 
Hearst  in  New  York,  had  just  been  established  in  Bos- 
ton, and  that  paper  at  once  commenced  to  publish  with 
big  headlines  and  pictures,  something  about  the  case  with 
every  issue — the  most  sensational  stories — calculated  to 
excite  the  public  mind.  The  other  Boston  papers  as  if 
fearing  that  the  American  would  get.  ahead  in  its  publica- 
tions, followed  suit.  All  the  papers  acted  as  though  they 
were  not  bound  by  facts,  but  that  the  imagination  could 


OF  A  LONG  LIFE.  215 


be  allowed  to  run,  and  that  rumor  and  suspicion  must  have 
full  and  unlimited  sway.  All  rumors  were  published, 
good,  bad  and  indifferent,  and  so  the  matter  went  on  from 
March  to  January. 

In  the  meantime  Charles  L.  Tucker,  a  young  man  in 
the  neighborhood,  had  been  arrested,  bound  over  to  the 
grand  jury  and  indicted. 

The  Chief  Justice  had  assigned  Justices  Sherman  and 
Sheldon  to  preside  at  the  trial,  and  appointed,  January 
2,  1905,  and  East  Cambridge  as  the  time  and  place*. 

On  account  of  the  publications  aforesaid  no  such  public 
interest  in  a  trial  had  manifested  itself  since  the  trial  of 
Professor  Webster,  unless  possibly  the  trial  of  Lizzie  Bor- 
den for  the  murder  of  her  father  and  mother  in  1893. 

The  newspapers  were  impatient  with  the  officers  until 
they  made  the  arrest  of  Tucker,  and  from  that  time  on 
they  expressed  doubts  about  the  prisoner's  guilt. 

Herbert  Parker,  Attorney  General,  George  A.  Sander- 
son, District  Attorney,  represented  the  government,  and 
James  H.  Vahey,  his  brother,  and  Charles  H.  Innes  ap- 
peared for  the  prisoner. 

When  the  trial  commenced  I  think  the  public  feeling 
was  perhaps  that  the  prisoner  was  guilty,  but  the  govern- 
ment had  not  sufficient  evidence  to  convict  him.  During 
the  whole  trial,  which  lasted  nearly  three  weeks,  the  news- 
papers, while  professing  to  publish  all  the  evidence,  were 
only  in  fact  publishing  a  small  part  of  it  with  comments 
upon  it  unfavorable  to  the  government,  so  that  nearly  the 
whole  ISTew  England  public  were  of  the  opinion  that  there 
was  not  sufficient  evidence  to  convict  the  prisoner.  The 
prisoner,  who  was  a  young  man,  not  bad  looking,  had 
much  sympathy  in  his  favor. 

♦Chief  Justice  Mason  died  in  the  early  morning  of  the  day  the  trial 
commenced;  the  court  was  adjourned  on  the  afternoon  of  the  4th  to 
enable  the  justices  to  attend  his  funeral. 


216  SOME  RECOLLECTIONS 

A  note  had  been  found  in  the  house,  which  the  murder- 
er had  left  telling  Miss  Page  that  her  brother  had  been 
injured  and  carried  to  the  hospital. 

The  evidence  was  all  circumstantial.  The  government 
claimed  (1)  that  this  note  was  in  the  handwriting  of  the 
prisoner,  (2)  that  the  knife  (a  large  dirk  knife)  with 
which  he  committed  the  murder  had  been  found  in  the 
prisoner's  coat,  broken  in  pieces  by  the  prisoner  after  the 
murder,  (3)  with  a  peculiar  stick  pin  which  belonged  to 
Miss  Page,  that  (4)  money  had  been  stolen  from  the  house, 
which  was  afterwards  in  the  prisoner's  possession;  (5) 
that  he  was  in  the  vicinity  at  the  time  of  the  murder,  so 
that  he  had  the  opportunity  to  commit  it,  (6)  that  he  had 
told  falsehoods  about  his  whereabouts  at  the  time  of  the 
murder,  about  the  knife,  etc. 

These  claims  of  the  government  were  all  disputed  by  the 
defense.  If  the  defense  had  rested  on  the  government's 
case  it  would  not  have  seemed  so  strong  as  it  did  in  the 
end.  The  defense  put  in  evidence  of  an  alibi  and  much 
evidence  that  tended  to  prove  the  prisoner's  innocence,  yet 
the  jury  evidently  believed  that  it  was  not  true,  but  man- 
ufactured. 

The  charge  by  Mr.  Justice  Sheldon  was  a  very  clear  and 
able  one. 

The  jury  which  was  an  intelligent  and  fair  minded 
jury,  after  mature  and  careful  consideration,  convicted 
the  prisoner  of  murder  in  the  first  degree. 

A  motion  was  made  to  the  presiding  justices  to  set  aside 
the  verdict  as  against  the  evidence  and  the  weight  of  the 
evidence,  which,  after  arguments,  was  denied  by  the  fol- 
lowing memorandum  and  decision. 


1": 


.\AkY 


(10 

-o 


OF  A  LONG  LIFE.  217 


Middlesex,  ss.  Superior  Court. 

April  3,  1905. 

Commonwealth  vs.  Chaeles  L.  Tucker. 

Decision  of  Court  on  Prisoner  s  Motion  for  a  New  Trial. 

The  different  grounds  assigned  as  reasons  why  the  pris- 
oner's motion  for  a  new  trial  should  be  granted  may  be 
reduced  to  three,  which  we  consider  in  the  order  of  their 
presentation  in  argument. 

1.     That  William  W.  ivTason,  one  of  the  jurors,  took 
and  preserved  some  notes  of  the  evidence  given  during  the 
trial.     The  evidence  relied  on  in  support  of  this  contention 
is  contained  in  the  affidavits  of  Mr.  Kason,  of  the  several 
counsel  engaged  in  the  defense  and  of  the  prisoner,  and  in 
an  agreement  as  to  the  testimony  that  would  be  given  by 
Mr.  Nason  himself.    We  are  of  the  opinion  that  if  it  were 
necessary  to  rule  upon  this  question  that  part  of  Mr.  !Na- 
son's  affidavit  which  states  that  upon  one  occasion  during 
the  early  part  of  the  trial  he  referred  to  his  notes  for  the 
purpose  of  throwing  light  upon  some  questions  which  two 
of  the  jurors  were  discussing,  would  be  incompetent  to 
show  anything  that  took  place  in  discussion  among  the 
jurors;  but  as  the  affidavit  does  not  state  and  there  is  no 
evidence  to  show  that  these  notes  or  any  part  of  them  were 
read  or  in  any  way  communicated  to  any  other  jurors,  we 
do  not  think  it  necessary  to  rule  upon  this  point.     After 
examination  and  careful  consideration  of  all  the  authori- 
ties which  have  been  cited  to  us,  we  rule  that  the  evidence 
does  not  require  us  as  matter  of  law  to  set  aside  the  ver- 
dict on  this  ground.    We  do  not  find  that  any  of  the  pris- 
oner's rights  have  been  at  all  affected  by  the  taking  of 
these  notes,  or  that  the  action  of  this  juror  has  in  any  way 
worked  to  his  prejudice;  and  we  are  satisfied  that  no  in- 
justice to  him  has  resulted  from  this  circumstance.     We, 


218  SOME  KECOLLECTIONS 

therefore,  in  the  exercise  of  our  judicial  discretion  for  the 
furtherance  of  justice,  decline  to  set  aside  the  verdict  upon 
this  ground. 

2.  It  is  earnestly  argued  that  erroneous  instructions 
as  to  what  constitutes  deliberately  premeditated  malice 
aforethought  were  given  to  the  jury,  the  effect  of  which  it 
is  contended  was  to  allow  them  to  convict  of  murder  in  the 
first  degree  upon  findings  which  would  justify  a  convic- 
tion only  of  murder  in  the  second  degree.  We  have 
weighed  carefully  the  considerations  which  have  been  ad- 
dressed to  us  upon  this  point  and  we  are  satisfied  that  the 
rulings  complained  of  went  no  further  than  those  which 
have  always  been  given  in  capital  cases,  and  in  our  judg- 
ment no  further  than  a  proper  construction  of  our  statute 
requires.  They  followed,  as  we  believe,  the  rules  which 
have  always  been  observed  in  this  Commonwealth  since 
the  enactment  of  our  present  statute,  with  no  other  varia- 
tion than  such  as  was  favorable  to  the  prisoner.  We  think 
it  would  be  wrong  for  this  court  now  to  adopt  the  conten- 
tion of  the  prisoner.  If  upon  this  question  we  are  in 
error,  it  is  a  satisfaction  to  remember  that  the  law  affords 
the  means  of  correcting  our  mistake;  but  it  would  be  a 
weak  and  reprehensible  shrinking  from  responsibility,  if, 
with  the  views  we  entertain,  we  should  now  attempt  to 
alter  what  we  believe  to  have  been  for  nearly  fifty  years 
the  doctrine  adopted  at  nisi  prius  in  this  Commonwealth. 
We  cannot  set  aside  the  verdict  upon  this  ground. 

3.  It  is  also  claimed  that  this  verdict  was  against  the 
evidence  and  the  weight  of  the  evidence,  that  it  was  a  sur- 
prising verdict,  that  it  was  an  unjust  conviction.  If  these 
contentions  are  sound,  manifestly  the  verdict  should  be  set 
aside;  and  although  it  is  true  that  the  verdict  was  ren- 
dered by  an  exceptionally  able  and  intelligent  jury,  after 
an  unusually  protracted  trial  and  an  exhaustive  presenta- 


OF  A  LONG  LIFE.  219 


tion  of  all  the  evidence  that  could  be  procured  by  either 
party,  that  the  prisoner  was  ably  defended  by  counsel  who 
spared  no  effort  in  his  behalf,  that  the  jury  followed  the 
evidence,  the  arguments  of  counsel,  and  the  charge  of  the 
court  with  a  closeness  of  attention  which  we  have  never 
seen  surpassed,  that  the  verdict  was  a  result  of  long  delib- 
eration and  manifest  effort  on  the  part  of  the  jury  to  reach 
the  right  conclusion,  yet  these  facts  could  not  prevent  the 
court  from  interposing.  But  we  must  remember  that  all 
the  arguments  now  relied  on  in  support  of  this  contention 
were  enforced  upon  the  jury  in  their  strongest  light  by 
the  able  counsel  who  have  so  zealously  and  faithfully 
labored  in  the  prisoner's  behalf.  The  jury  was,  as  we  have 
said,  an  unusually  able,  intelligent  and  fair-minded  panel. 
It  may  be  doubted  if  more  careful  and  painstaking  jurors 
have  ever  sat  in  a  capital  trial.  They  heard  all  the  evi- 
dence ;  they  saw  all  the  witnesses ;  they  listened  attentive- 
ly to  the  arguments ;  they  gave  close  and  careful  attention 
to  the  charge  of  the  Court.  The  prisoner  has  had  a  patient, 
fair  and  impartial  trial.  And  we  feel  it  our  duty  to 
say,  after  going  over  all  the  evidence,  that  in  our  judg- 
ment the  verdict  which  the  jury  have  returned  was  well 
warranted  by  the  evidence;  that  a  verdict  of  acquittal 
would  have  been  a  failure  of  justice.  The  evidence  was 
ample  to  justify  the  jury  in  finding  that  the  prisoner 
was  where  he  had  the  opportunity  to  commit  this  murder, 
that  he  was  present  at  its  commission, — a  long  step  towards 
his  conviction  in  view  of  the  fact  that  none  of  the  circum- 
stances, no  suggestion  from  his  own  lips  when  he  did 
speak,  no  contention  of  his  counsel,  and  no  tittle  of  evidence 
gave  any  ground  for  the  supposition  that  his  presence  at 
the  murder  could  have  been  compatible  with  innocence; 
that  he  stole  from  the  house  at  that  time,  money  and  a  pin, 
belonging  to  the  victim;  that  he  had  in  his  possession  on 


220  SOME  KECOLLECTIONS 

that  day  shortly  after  the  murder  the  knife  with  its 
sheath  which  was  the  instrument  of  the  crime ;  that  drops 
of  the  blood  of  the  victim  were  found  upon  his  knife  and 
his  clothing;  that  he  attempted  to  do  away  with  evidence 
against  himself  by  mutilating,  destroying  and  concealing 
this  knife  and  pin  and  by  fabricating  false  stories  concern- 
ing his  doings  on  and  after  the  day  in  question,  when  if 
he  were  innocent  this  conduct  on  his  part  would  have  been 
without  any  motive;  that  the  "J.  L.  Morton"  note  was 
written  by  him  in  the  Page  house  for  the  purpose  of  mi» 
leading  future  inquiry,  and  this  without  giving  weight  to 
any  of  the  expert  testimony  upon  handwriting ;  and  finally 
that  much  of  the  evidence  produced  at  the  trial  on  his  be- 
half was  untrue.  The  court  closed  its  charge  to  the  jury 
by  urging  them,  in  the  language  of  Chief  Justice  Shaw  in 
the  Webster  case,  to  weigh  the  evidence  and  return  such  a 
verdict  as  should  satisfy  their  own  judgments  and  their 
own  enlightened  consciences,  and  declared  its  confidence 
that  such  a  verdict  would  be  a  true  one.  We  believe  that 
the  jury  have  done  this,  that  their  verdict  is  a  true  one; 
and,  so  believing,  we  should  be  false  to  our  own  duty,  we 
should  violate  our  ofiicial  oaths,  if  we  took  it  upon  our- 
selves to  override  their  conclusion. 

The  motion  for  a  new  trial  is  denied. 

Edgar  J.  Sherman  and  Henry  IST.  Sheldon,  justices. 


Numerous  exceptions  were  then  filed  to  the  rulings  of 
the  court  during  the  trial,  which  were  heard  before  the 
Supreme  Judicial  Court  on  oral  and  printed  arguments. 
In  due  time  that  court,  in  an  able  and  exhaustive  opinion 
by  Mr.  Justice  Hammond,  overruled  the  exceptions,  find- 
ing no  error  by  the  trial  court.  (See  Commonwealth  vs. 
Charles  L.  Tucker,  189  Mass.  R.  457.) 


OF  A  LONG  LIFE.  221 


A  motion  for  a  new  trial  was  then  filed  in  the  Superior 
Court,  which  was  heard  before  Mr.  Justice  Sherman 
alone  Tas  Mr.  Justice  Sheldon  had  in  the  meantime  been 
promoted  to  be  a  justice  of  the  Supreme  Judicial  Court). 
After  full  hearing  the  motion  was  overruled  by  the  fol- 
lowing : — 


Middlesex,  ss.  Superior  Court. 

January  22,  1906. 
Commonwealth  vs.  Charles  L.  Tuckee. 

Decision  of  Mr.  Justice  Sherman  upon  the  prisoner  s 
Motion  for  a  new  trial. 

The  defendant  seeks  a  new  trial  upon  two  grounds: — 

First,  because  of  error  at  the  trial  in  that  the  govern- 
ment was  allowed  to  introduce  evidence  that  the  prisoner 
was  without  money  before  the  murder,  that  he  was  pos- 
sessed of  it  afterwards,  and  that  there  was  no  evidence  that 
money  was  missing  from  the  Page  home. 

This  question  was  passed  upon  by  the  Supreme  Court, 
which  decided  that  there  was  no  error  on  the  part  of  the 
trial  court.  The  prisoner  then,  as  his  counsel  states,  asked 
for  a  re-hearing  before  that  co»rt,  upon  the  ground  set 
forth  in  this  motion, — which  was  denied;  and  now  this 
court  is  asked  to  overrule  a  solemn  and  unanimous  opinion 
of  the  Supreme  Judicial  Court  on  account  of  this  alleged 
error  in  law.  But  this  court  is  bound  by  the  decisions  of 
that  court. 

The  counsel  for  the  prisoner  say  in  their  request  for 
rulings  in  this  hearing:     "From  a  careful  reading  of  the 


222  SOME  EECOLLECTIONS 

opinion  of  the  Supreme  Judicial  court  it  is  clear  that  the 
defendant's  exceptions  as  to  this  evidence  would  have  been 
eustained,  except  for  the  clause  aforesaid,  at  the  end  of  the 
bill  of  exceptions".  On  the  contrary,  in  the  very  next 
paragraph  of  that  opinion,  the  Court  says:  "But  whether 
or  not  there  was  such  evidence  is  not  material  to  the  in- 
quiry before  us". 

It  is  apparent  that  the  Commonwealth  relied  upon  the 
fact  that  money  was  stolen  from  the  Page  house ;  that  the 
trial  justices  both  believed  that  there  was  such  evidence, 
and  Mr.  Justice  Sheldon  vividly  called  the  attention  of  the 
prisoner  and  his  counsel  to  that  fact  in  his  charge  to  the 
jury,  as  follows: 

"The  claim  of  the  Commonwealth  is  that  he  (the  de- 
fendant) might  have  been  there  (in  the  Page  house),  that 
he  carried  from  that  house  upon  his  knife  and  his  clothing 
stains  of  the  blood  of  his  victim ;  that  he  stole  money  from 
her  pocket  book " 

And  in  another  part  of  the  charge  as  follows: 

"So,  too,  as  to  the  claim  that  he  stole  money  from  Miss 
Page's  pocket  book.  It  is  claimed  that  shortly  before  the 
murder  he  was  in  great  want  of  money,  selling  and  pawn- 
ing whatever  he  could  to  raise  money  for  the  purpose  of 
going  to  St.  Louis;  that  money,  at  least,  a  ten  dollar  bill, 
was  stolen  from  Miss  Page's  pocket  book,  and  that  imme- 
diately after  the  murder  the  prisoner  was  in  the  possession 
of  such  money". 

If  the  counsel  for  the  prisoner  then  believed,  that  there 
was  no  such  evidence,  and  this  claim  is  not  an  after- 
thought, then  it  appears  that  they  saw  fit  not  to  call  this 
claim  to  the  attention  of  the  court  during  the  trial,  so  that 


OF  A  LONG  LIFE.  223 


a  mistake  of  fact,  if  any,  could  then  and  there  have  been 
corrected. 

But  there  was  some  evidence  of  loss  of  money  from  the 
Page  house,  the  vt^eight  and  value  of  which  was  entirely 
for  the  consideration  of  the  jury. 

The  second  ground  of  the  motion  is  on  account  of  alleged 
newly  discovered  evidence. 

Some  of  the  evidence  offered  is  hearsay  and  clearly  in- 
competent, and  the  balance  is  cumulative. 

This  evidence,  in  my  opinion,  would  not  have  changed 
the  verdict  had  it  been  offered  at  the  trial. 

After  a  careful  and  prolonged  trial,  before  an  able,  fair- 
minded  and  impartial  jury  the  defendant  was  found 
guilty. 

A  motion  was  made  before  the  trial  court  to  set  aside 
the  verdict  as  not  warranted  and  as  against  the  evidence. 
After  a  full  hearing  the  presiding  justices  overruled  that 
motion,  stating  that  the  verdict  was  fully  authorized  under 
the  evidence,  and  that  an  acquittal  would  have  been  a  mis- 
carriage of  justice. 

The  case  was  then  taken  before  the  Supreme  Judicial 
Court  on  numerous  exceptions  taken  at  the  trial. 

That  court,  after  hearing  counsel  in  a  prolonged  oral 
argument  and  by  the  submission  of  an  elaborate  printed 
brief,  has  found  no  error  in  the  proceedings,  or  at  the 
trial. 

The  prisoner  has  had  all  his  rights  carefully  guarded 
and  preserved  for  him,  and  he  is  not  entitled  to  a  new 
trial,  and,  in  the  exercise  of  my  discretion,  I  overrule  his 
motion. 

On  the  27th  day  of  January,  1906,  the  attorney  moved 
that  sentence  be  passed  upon  the  prisoner. 

In  the  Superior  Court  at  East  Cambridge,  January  27, 
1906,  the  prisoner,  Charles  L.  Tucker,  was  brought  into 
Court,  and  the  Attorney  General  moved  for  sentence. 


224  SOME  EECOLLECTIONS 

(Judge  Sherman  imposes  sentence). 

The  clerk  asked  the  prisoner  if  he  had  anything  to  say 
why  the  sentence  of  death  should  not  be  passed  upon  him. 
He  replied  in  the  negative. 

Sherman,  Judge.  Charles  L.  Tucker,  on  the  thirty-first 
day  of  March,  1904,  an  innocent  woman  of  spotless  char- 
acter was  murdered  while  alone  in  her  own  house  in  the 
quiet  town  of  Weston.  The  officers  of  the  law,  in  the  per- 
formance of  their  duty,  commenced  a  careful  and  pains- 
taking investigation  to  ascertain  and  discover  the  mur- 
derer. It  was  soon  evident  that  the  murder  was  not  com- 
mitted by  a  tramp  or  a  stranger,  but  by  some  one  who 
knew  the  family  and  was  well  acquainted  in  the  vicinity. 

The  officers  investigated  every  rumor,  followed  every 
possible  suggestion  and  clue,  until  the  evidence  pointed  so 
strongly  to  you  that  they  could  delay  no  longer ;  you  were 
arrested  and  subsequently  indicted. 

Able  counsel  were  appointed  to  defend  you.  From  that 
time  to  this  they  have  labored  unceasingly  and  tirelessly, 
and  have  expended  a  larger  amount  of  the  public  money 
in  your  behalf  than  was  ever  expended  before  in  a  capital 
trial  in  this  Commonwealth. 

After  a  careful  and  prolonged  trial,  before  an  able,  im- 
partial and  fair-minded  jury,  you  have  been  found  guilty, 
the  jury  after  mature  deliberation,  decided  that  you  were 
the  man  who  used  the  knife  and  committed  the  murder, 
but  upon  the  question  of  degree  they  asked  the  Court  for 
further  instructions.  After  fully  understanding  the  law 
in  this  respect,  they  declared  you  guilty  of  murder  in  the 
first  degree. 

Subsequently,  your  counsel  asked  the  presiding  Justices 
to  set  aside  the  verdict  of  the  jury,  as  not  warranted  and  a3 


OF  A  LONG  LIFE.  225 


against  the  evidence  and  the  weight  of  the  evidence.  After 
full  hearing  the  Justices  were  obliged  to  refuse  and  deny 
said  motion. 

Since  then  the  case  has  been  reviewed  by  the  Supreme 
Judicial  Court,  the  highest  court  in  this  Commonwealth, 
and  that  court  has  found  no  error  in  the  proceedings  or  at 
the  trial. 

Recently  this  court  has  heard,  considered  and  overruled 
a  second  motion  for  a  new  trial. 

Your  conviction  for  the  great  crime  of  murder,  in  the 
first  degree,  has  been  sustained  as  proper,  lawful  and  just. 

When  this  murder  was  first  discovered  the  public  was 
greatly  excited.  Great  anxiety  was  manifested  for  the 
arrest  and  conviction  of  the  murderer,  and  great  sympathy 
was  expressed  for  the  family  of  the  victim. 

!N^ine  long  months  passed  before  you  were  put  upon 
your  trial.  In  the  mean  time  Mabel  Page  had  been 
buried  and  partially  forgotten,  and  sympathy  turned  some- 
what from  the  dead  to  the  living. 

When  you  left  the  lifeless  body  of  Mabel  Page  on  the 
floor  of  the  Page  house  that  day,  you  carried  away  with 
you  many  mute  and  silent  witnesses  of  your  guilt,  enough 
with  the  other  evidence  in  the  case,  to  satisfy  a  jury  of 
your  peers,  "twelve  good  men  and  true",  beyond  a  reason- 
able doubt  of  your  guilt. 

I  believe  that  many  crimes  are  committed  because  their 
perpetrators  have  not  understood  the  force  and  effect  of 
circumstantial  evidence. 

I  feel  confident  that  many  murderers  would  have  been 
deterred  and  prevented  from  committing  their  great 
<?rimes  if  they  had  known  what  Chief  Justice  Shaw  and 
other  great  judges  and  lawyers  have  often  declared, — that 
circumstantial  evidence  mav  well  be  full  as  safe  and  satis- 

*j 

factory  to  prove  the  guilt  as  what  is  called  direct  evidence. 


226  SOME  KECOLLECTIONS 

The  frequent  declarations  against  such  evidence  by  men 
who  hardly  know  what  such  evidence  is,  and  who  can  know 
but  little  about  it  from  observation  or  experience,  I  fear 
lead  men  to  commit  crime  with  a  belief  that,  if  no  wit- 
nesses are  present,  there  can  be  no  convictions. 

I  am  sorry  for  your  family  and  I  pity  you,  that  you 
have  come  to  this  tragic  end.  But  I  am  compelled  to  say 
that  it  is  hard  to  imagine  a  more  wanton,  wicked  and 
causeless  murder  than  this,  of  a  virtuous  and  blameless 
woman. 

You  stand  here  now  for  sentence;  and  it  becomes  my 
painful  duty,  as  a  magistrate  and  minister  of  the  law,  ta 
pass  sentence  upon  you. 

It  is  considered  and  ordered  by  the  Court,  that  you, 
Charles  L.  Tucker,  shall  be  taken  to  the  jail  in  this  county, 
and  there  kept  in  close  custody  until  within  ten  days 
prior  to  Sunday,  the  tenth  day  of  June  next,  when  you 
shall  be  removed  to  the  State  Prison  in  Boston,  in  the 
County  of  Suffolk,  and  there  kept  in  close  confinement 
until  the  said  tenth  day  of  said  June,  when,  within  the 
week  beginning  on  said  last  day,  you  shall  suffer  death  by 
the  passage  of  electricity  through  your  body;  and  this  is 
the  sentence  required  by  law. 

Application  was  made  to  a  judge  of  the  Supreme 
Court  of  the  United  States  (Mr.  Justice  Harlan)  to  grant 
a  stay  of  execution,  alleging  that  a  Federal  question  was 
involved,  but  that  judge  after  considering  the  question,  de- 
cided that  no  such  question  was  raised  and  refused  to  grant 
a  stay. 

A  petition  was  then  presented  to  the  Governor  and 
Council  to  commute  the  sentence  to  imprisonment  for  life, 
numerously  signed,  and  asking  a  hearing  before  the  Gov- 
ernor   and    Council,    claiming    that    the    Governor    was 


OF  A  LONG  LIFE.  227 


obliged  to  submit  the  same  to  the  Council.  The  Governor 
decided  that  he  was  not  obliged  to  do  so,  but  the  Governor 
and  Council  submitted  that  question  to  the  Supreme 
Judicial  Court.  That  Court  decided  (see  opinion  of  the 
Justices,  190  Mass.  R.  616)  that  the  Governor  was  not 
obliged  to  submit  the  petition  to  the  Council. 

The  Governor  subsequently  gave  the  petitioners  a  full 
hearing.  After  hearing  the  evidence  and  arguments  of 
the  prisoner's  Counsel  the  petition  was  refused. 


To  the  Petitioners  for  the  Commutation  of  the  Sentence 
of  Charles  L.  Tucker: 

I  have  given  to  your  petition  and  to  the  case  of  Charles 
L.  Tucker,  convicted  of  the  murder  of  Mabel  Page,  the 
most  careful  consideration.  Some  time  since  I  began  my 
own  investigation  of  the  case. 

I  have  read  all  the  evidence  presented  in  the  lower  court 
and  the  official  stenographic  report  (2696  pages)  of  the 
proceedings  in  the  Superior  Court,  together  with  various 
affidavits  and  reports  submitted  to  me. 

I  have  given  a  lengthy  hearing  to  the  counsel  for  the 
prisoner  and  to  all  witnesses  as  to  fact  whom  they  chose 
to  summon,  even  when  the  testimony  offered  was  such  as 
could  not  be  heard  in  a  court  of  justice,  recognizing  that 
the  Governor,  on  a  plea  of  clemency,  is  not  bound  by  tech- 
nical laws  of  evidence.  I  have  personally  examined  the 
neighborhood  of  the  murder  and  have  on  foot  passed,  with 
time  tests,  over  the  roads  and  ways  about  the  Page  house 
in  Weston  and  at  about  the  hour  of  the  day  when  the  mur- 
der was  committed.  I  have  examined  all  the  various  ex- 
hibits in  the  case,  and  have  myself  fitted  the  blade  of  the 
knife  of  Charles  L.  Tucker  into  the  slit  in  the  blood-stained 
corset  of  Mabel  Page. 

I  have  no  right,  remembering  my  oath  to  enforce  the 
laws  of  this  Commonwealth,  to  consider  my  own  or  other 


228  SOME  RECOLLECTIONS 


men's  opinions  of  the  character  of  those  laws  or  to  stay 
the  execution  of  any  law  because  of  my  opinion  or  of  any 
other  man's  opinion.  I  have  no  right  to  refuse  to  enforce 
the  law  in  regard  to  capital  punishment  on  the  ground  that 
that  law  is  abhorrent  to  any  person  or  persons. 

In  considering  so  serious  a  case  all  prejudice  should  be 
removed  and  evidence  carefully  sifted.  Irresponsible  talk 
in  regard  to  the  manner  in  which  the  prisoner's  wife  met 
her  death  in  his  company  can  be  given  no  more  considera- 
tion than  similar  irresponsible  talk  of  vmidentified  persons 
in  Connecticut  who  looked  as  if  they  might  have  com- 
mitted some  crime  somewhere. 

Charles  L.  Tucker  was  arrested  for  the  murder  of  Mabel 
Page,  April  9,  1904.  He  was  conveyed  to  the  ISTewton 
Police  station  and  was  arraigned  at  once  before  the  Wal- 
tham  Police  court.  As  a  result  of  a  hearing  before  Judge 
Luce  the  prisoner  was  bound  over  to  await  the  action  of  the 
Grand  Jury. 

On  Jime  9,  1904,  the  Grand  Jury  found  an  indictment 
against  the  prisoner.  On  June  16th  he  was  arraigned  and 
pleaded  not  guilty.  Counsel  were  assigned  him.  Their 
first  act  was  a  motion  to  quash  the  indictment.  This  was 
overruled.  A  motion  was  then  filed  to  withdraw  the  pris- 
oner's plea  to  the  indictment,  which  motion  was  denied. 
On  January  2,  1905,  the  prisoner  was  tried  in  the  Supe- 
rior Court  of  Middlesex  before  a  jury  that  has  been  aptly 
described  as  one  of  the  most  intelligent  that  ever  sat  in 
Massachusetts.  Scores  of  talesmen  wer-e  summoned  and 
every  possible  right  of  challenge  used  to  the  uttermost  by 
the  prisoner's  counsel.  Every  technicality  of  the  law  that 
could  be  used  was  used  to  prevent  the  introduction  of  evi- 
dence hostile  to  the  prisoner.  Yet  this  jury  found  him 
guilty  of  murder  and  in  the  first  degree. 

His  counsel  thereupon  filed  a  motion  for  a  new  trial, 
which  motion  was  denied.  In  refusing  the  new  trial  the 
justices  found  "That  in  our  judgment  the  verdict  which 
the  jury  has  returned  was  well  warranted  by  the  evidence ; 
that  a  verdict  of  acquittal  would  have  been  a  failure  of  jus- 
tice". 


OF  A  LONG  LIFE.  229 


Thereupon  the  prisoner's  counsel  filed  various  excep- 
tions to  the  rulings  of  the  presiding  justices.  These  were- 
considered  by  the  Supreme  Judicial  Court  of  the  Com- 
monwealth and  were  overruled. 

A  second  motion  for  a  new  trial  was  then  made  by  the 
prisoner's  counsel.  This  motion  was  likewise  overruled,. 
January  22,  1906.  An  application  for  a  writ  of  error 
was  then  made  to  the  Supreme  Court  of  the  United  States. 
This  application  also  was  denied.  Finally  an  appeal  wa&- 
made  to  the  Governor  and  Council  with  the  contention  that 
the  Governor  must  of  necessity  refer  all  such  petitions  to 
the  Council.  This  contention  was  declared  erroneous  by 
an  opinion  of  the  Justices  of  the  Supreme  Court  of  the 
Commonwealth.  They  also  confirmed  the  view  of  the  Gov- 
ernor, that  the  Chief  Executive  has  the  right  to  ask  the 
advice  of  any  citizens  in  regard  to  any  matter  at  any  hear- 
ing he  may  hold. 

Accordingly,  at  the  hearing  before  me  at  the  Executive 
Chamber,  Justices  Sheldon  and  Sherman,  who  occupied 
the  bench  during  the  trial,  were  present  at  my  invitation^ 
They  have  reported  as  follows  on  the  evidence  offered: 


"To  His  Excellency  the  Governor: 

After  carefully  considering  the  testimony  to  which  we- 
listened  yesterday,  we  respectfully  report  as  follows: 

A  large  part  of  this  evidence  was  the  merest  hearsay,, 
and  could  not  have  been  considered  in  court.  Much  of  this 
and  also  of  the  other  evidence  was  only  conjectural.  The^ 
comparatively  small  portion  that  could  have  any  legitimate 
bearing  was  cumulative,  and  not  of  a  character  that  seemed 
to  us  to  command  confidence  or  to  warrant  any  expecta- 
tion that  if  produced  at  the  trial  it  properly  could  have- 
brought  about  a  different  result  from  that  which  was 
reached.  We  cannot  find  that  there  would  now  be  any  ma- 
terial change  in  the  testimony  of  the  medical  experts.  We 
heard  nothing  to  meet  the  strong  evidence  of  guilt  whick 
was  offered  at  the  trial. 


230  SOME  EECOLLECTIONS 

Accordingly,  if  this  were  a  question  of  setting  aside  the 
verdict  of  the  jury,  we  should  be  unable  to  do  so. 

Very  respectfully, 

Your  obedient  servants, 

Edgab  J.  Shekman, 

Henky  N.  Sheldon. 

Boston,  June  6,  1906". 


"This  important  report  commands  serious  considera- 
tion. 

The  attempt  at  the  hearing  before  me  to  offer  a  literary 
parody  as  evidence  against  the  law  officers  of  the  Common- 
wealth but  emphasizes  their  faithful,  fair  and  intelligent 
services. 

'No  medical  authority  who  actually  himself  saw  the 
wounds  on  the  body  of  Mabel  Page  has  ever  wavered  in  his 
statement  that  they  might  have  been  made  by  a  knife  of 
the  exact  measurement  of  that  which  Tucker  had  tried  to 
destroy,  but  which  was  found  in  fragments  before  he  had 
time  to  dispose  of  them,  in  the  side  pocket  of  his  coat,  in 
company  with  a  stick  pin,  sworn  to  have  belonged  to  his 
victim.  Men  do  not  habitually  carry  stick  pins  loose  in 
the  side  pockets  of  their  coats.  If  this  were  one  of  the 
various  pins  that  really  did  belong  to  Tucker,  it  is  extra- 
ordinary that  it  should  have  been  found  in  such  an  unusual 
place  in  company  with  fragments  of  a  knife  which  he  con- 
fessed he  was  trying  to  destroy,  because  they  might  be  used 
to  incriminate  him.  Why,  regardless  of  ownership,  was 
he  trying  to  hide  that  pin  ? 

A  discussion  of  all  the  numerous  points  of  evidence  in- 
criminating the  prisoner  is  unnecessary.  They  are  a  mat- 
ter of  record. 

Every  decision  handed  do^vn  by  every  judicial  authority 
to  whom  disputed  questions  of  law  have  been  referred  has 
affirmed  the  correctness  of  the  rulings  in  this  case.  Not 
only  did  every  member  of  that  jury,  to  whom  the  original 
evidence,  ungarbled  and  undistorted,  was  presented,  find 


OF  A  LONG  LIFE.  231 


the  prisoner  guilty,  but  the  Judge  who  pronounced  sen- 
tence upon  him,  after  every  possible  appeal  to  the  judicia- 
ry had  been  exhausted,  declared  the  verdict  of  murder  in 
the  first  degree  'proper,  lawful  and  just'.  He  even  added : 
'It  is  hard  to  imagine  a  more  wanton,  wicked  and  causeless 
murder  than  this  of  a  virtuous  and  blameless  woman'. 

The  causes  usually  urged  for  mercy  to  a  convicted  crim- 
inal are  either  extreme  youth,  notable  public  service,  in- 
tense provocation,  or  a  previously  blameless  life.  !N^o  such 
plea  can  be  entered  for  the  prisoner.  He  is  not  a  boy. 
Men  of  no  greater  age  than  his  at  the  time  of  the  murder 
have  served  in  National  Parliaments  and  commanded 
armies  that  have  changed  the  destinies  of  the  world.  Not 
only  is  no  claim  of  public  service  made  for  the  prisoner, 
but  he  never  rose  or  remained  for  any  great  length  of  time 
in  any  private  employment.  Neither  Mabel  Page  nor  any 
of  her  family  had  ever  wronged  him  or  his.  His  habits  of 
life  as  disclosed  to  me  by  investigation,  through  official 
and  other  sources,  seem  almost  impossible  to  one  whose 
bitter  duty  it  is  to  resist  the  appeals  of  his  clear-eyed 
brother,  his  sorrowing  mother  and  his  father,  honored  and 
respected  of  all  men. 

I  must,  however,  remember  that  other  home :  a  pure  and 
lovely  girl  murdered  in  a  lonely  house;  a  father  martyred 
by  sensationalism,  a  devoted  sister  driven  to  the  verge  of 
nervous  prostration,  and  a  faithful  working  girl  persecuted 
by  threats  of  bodily  harm. 

Proof  of  the  miserable  habit  of  life  of  this  unhappy 
young  man  as  disclosed  by  incidents  in  connection  with 
this  trial  is  confirmed  by  my  own  independent  investiga- 
tion. 

The  search  warrant,  prepared  though  not  used,  against 
Tucker  did  not  specify  the  knife  used  in  the  murder,  but 
did  specify  certain  goods  stolen  on  other  occasions  by  the 
prisoner  which  were  returned  to  their  owners,  chiefly  by 
the  prisoner,  before  his  arrest. 

The  same  plea,  of  having  returned  the  fruits  of  a  crime 
after  its  commission,  has  been  publicly  made  to  excuse  the 
prisoner  for  and  admitted  forgery. 


232  SOME  KECOLLECTIONS 


At  the  hearing  before  me  the  prisoner's  counsel  asserted 
that  the  prisoner  on  the  day  of  the  murder  "committed  an 
offence  with  Mabel  Walker". 

The  evidence  in  the  lower  court,  later  confirmed  by  ex- 
pert medical  evidence  summoned  by  both  sides,  furnishes 
uncontested  proof  that  the  prisoner  was  not  accustomed 
to  recognize  even  the  bounds  established  by  nature  in  the 
gratification  of  his  passions. 

In  common  with  every  other  responsible  person  in  this 
case,  sworn  to  act  in  accordance  with  his  convictions  as  to 
the  prisoner's  guilt  or  innocence,  I  am  compelled  to  an  un- 
doubting  belief  in  his  guilt. 

Neither,  therefore,  on  the  ground  urged  that  the  verdict 
was  unwarranted  by  the  evidence,  nor  on  the  grounds  usu- 
ally urged,  can  I  interfere  with  the  execution  of  this  just 
sentence.  Every  citizen  must  sympathize  and  sorrow  with 
this  unhappy  man's  afflicted  family,  but  of  more  impor- 
tance than  the  life  of  any  one  citizen  is  the  protection  by. 
government  of  the  life  of  every  citizen,  is  the  safeguarding 
of  woman's  chastity  in  the  lonely  farmhouse  as  well  as  in 
the  patrolled  streets  of  the  city,  is  the  assurance  to  the  peo- 
ple that  the  ordered  action  of  their  courts  is  to  be  respected 
and  that  irresponsible  agitation  cannot  be  substituted  for 
law  and  order  in  this  Commonwealth. 

This  melancholy  chapter  in  our  history  may  not  have 
been  written  in  vain  if  it  serves  to  warn  the  youth  of  our 
Commonwealth,  tempted  by  the  allurements  of  vice  to 
ignoble  life,  that  the  wages  of  sin  is  death,  if  it  serves  to 
show  that  government  in  Massachusetts  still  stands  on  the 
rock  of  her  own  Constitution  to  the  end  that  it  may  be  'A 
government  of  laws  and  not  of  men'. 

CuKTis  Guild,  Je. 

Executive  Chamber, 

State  House,  Boston, 
June  7,  1906". 

The  prisoner  was  executed  in  accordance  with  sentence. 


OF  A  LONG  LIFE.  233 


After  the  execution  of  Charles  L.  Tucker,  a  statement, 
purporting  to  come  from  James  H.  Vahey,  his  senior  coun- 
sel, was  published  in  the  newspapers,  explaining,  or  giv- 
ing a  reason,  why  the  prisoner.  Tucker,  was  not  put  upon 
the  witness  stand,  as  follows: 


(Boston  Daily  Globe,  June  12,  1906.     Third  page,  first 
column.) 

"James  H.  Vahey,  senior  counsel  for  Charles  L.  Tucker, 
made  the  following  statement  this  morning,  when  he 
learned  that  Tucker  was  dead: — 

The  failure  of  the  defendant  to  testify  has  also  been  a 
subject  of  much  comment  and  we  feel  that  the  public  ought 
to  know  exactly  what  the  reasons  were  for  the  defendant's 
failure  to  testify. 

This  question  gave  us  great  concern  throughout  the 
trial  and  up  to  the  moment  when  it  was  definitely  deter- 
mined that  the  prisoner  would  not  testify.  While  the 
whole  matter  had  remained  in  abeyance,  I  think  we  all 
had  a  feeling  that  the  defendant  would  take  the  stand. 

The  evidence  in  the  case  was  concluded  on  Saturday, 
January  21.  On  Friday,  January  20,  all  the  evidence  had 
practically  been  presented,  except  that  of  the  defendant,  if 
he  were  to  testify,  and  the  court  had  adjourned  a  little 
earlier  that  day  in  order  that  we  might  have  some  farther 
time  to  reflect  on  that  subject.  I  do  not  know  that  I  state 
the  things  in  their  chronological  order,  but  the  substance 
of  the  various  interviews  follows: 

Judge  Sherman  asked  me  if  I  wanted  any  advice  from 
him  on  the  matter.  I  said  I  would  be  glad  to  receive  it. 
He  told  me  that  he  thought  it  advisable  from  long  experi- 
ence to  state  all  the  reasons  for  and  all  the  reasons  against 
his  testifying  to  the  defendant  and  his  people  and  let  them 
decide. 


234  SOME  EECOLLECTIONS 


I  talked  with  one  of  the  best  criminal  lawyers  in  Massa- 
chusetts that  same  evening  for  two  hours  and  his  advice 
substantially  coincided  with  Judge  Sherman's". 

The  undersigned,  except  for  that  statement,  would  not 
feel  called  upon  to  make  the  following 


MEMOEANDtTM. 

James  H.  Vahey,  during  the  trial  of  Charles  L.  Tucker 
for  the  murder  of  Mabel  Page,  entered  the  Judge's  Lobby, 
after  the  adjournment  of  court.  Judges  Sherman  and  Shel- 
don, Sheriff  John  R.  Fairbairn  and  Mr.  Vahey,  being 
present,  the  following  conversation  then  took  place. 

Mr.  Vahey.  Judge  Sherman,  you  having  had  a  large 
experience  as  Attorney  General  and  as  a  Justice  of  this 
Court  in  capital  trials,  I  want  to  ask  your  advice,  as  I  have 
had  little  or  no  experience  in  such  cases  and  am  a  good 
deal  embarrassed. 

Judge  Sherman.     If  I  can  properly  advise  you,  I  will. 

Mr.  Vahey.  Shall  I  put  the  prisoner  on  the  witness 
stand  ? 

Judge  Sherman.  I  do  not  think  it  would  be  proper  for 
me  to  answer  that  question. 

Perhaps  I  can  tell  you  what  the  rule  and  practice  is 
among  the  best  lawyers  in  such  cases.  If  the  attorney 
believes  his  client  innocent,  put  him  on  the  witness  stand 
without  hesitation.  If,  however,  he  believes  him  guilty, 
never  put  him  on  the  witness  stand.  If  the  prisoner  in- 
eists  upon  being  a  witness  and  the  Attorney  believes  him 
guilty,  the  Attorney  should  say  to  him:  'I  advise  you  not 
to  testify,  but  as  you  have  more  interest  in  the  case  than 
I  have,  I  shall  not  interfere'. 

What  do  you  say.  Judge  Sheldon  ? 

Judge  Sheldon.  I  fully  concur  in  what  you  say  about 
the  practice  among  the  best  lawyers  in  such  cases. 

Mr.  Vahey.     I  thank  you,  gentlemen,  for  advising  me. 

Some  days  after,  Mr.  Vahey  again  entered  the  Judge's 
Lobby  and  said: 


OF  A  LONG  LIFE.  235 


After  our  interview  the  other  evening,  I  told  Tucker 
what  you  said  to  me  concerning  his  being  a  witness. 

After  talking  with  him  a  long  time,  I  told  him  to  think 
it  over  carefully  and  then  decide  what  to  do. 

Subsequently  he  told  me  that  he  had  decided  not  to  be 
a  witness,  and  thereby  he  relieved  me  of  a  great  responsi- 
bility, and  I  did  not  have  to  advise  him. 

Edgae    J.    Sheeman, 
H.  N.  Sheldon, 
John  R.   Faiebaibn. 


I  did  not  ask  Mr.  Vahey  if  he  wanted  me  to  advise  him 
about  Tucker's  being  a  witness.  The  only  conversation  I 
ever  had  with  him  on  that  subject  is  stated  in  the  above 
memorandum. 

Edgae  J.  Sheeman. 


CHAPTER  XIII. 


EXCUESIONS  AND  MEETINGS  WITH 
FAMOUS  MEN. 


The  Vermont  Association  of  Boston  is  an  organization 
of  men  and  women  born  in  Vermont  and  living  in  Boston 
and  vicinity.    It  was  organized  in  1887. 


The  Presidents  were  as  follows : — 


Hon.  H.  O.  Houghton,     . 

Hon.  Walbridge  A.  Field, 

Hon.  Alanson  W.  Beard, 

Hon.  Alden  Spear,       .     . 

Hon.  William  E.  Fuller, 

Hon.  Edgar  J.  Sherman, 


1887- 
1894- 
1896- 
1897- 
1899- 
1900- 


1893 
1895 
1897 
1899 
1900 
1903 


The  fifteenth  annual  report  of  the  Association,  1901, 
at  a  meeting  at  Young's  Hotel,  April  8,  1901,  proceeds  as 
follows : 


Peesident  Suggests  a  Trip  to  Vermont. 

President  Sherman  then  suggested  the  advisability  of 
the  Association's  making  a  trip  to  the  Vermont  Old  Home 
Week,  and  of  holding  the  annual  banquet  at  some  point  in 
that  state.    This  matter  was  discussed  at  some  length,  and 


OF  A  LONG  LIFE.  237 


Mr.  Arthur  L,  Robinson,  of  the  Executive  Committee,  gave 
the  Association  a  very  cordial  invitation  to  a  trip  on  Lake 
Champlain  and  a  dinner  near  his  old  home.  South  Hero. 

At  the  close  of  the  discussion,  the  President  asked  for 
a  show  of  hands  of  those  who  favored  the  plan  of  such  a 
trip  Old  Home  Week,  and  it  was  the  unanimous  opinion 
that  such  a  trip,  if  feasible,  would  prove  to  be  of  special 
interest  to  the  members  of  the  Association. 

Plans  were  sufficiently  matured  so  that  August  1  the 
Secretary  was  able  to  issue  a  circular  of  information  con- 
taining the  following  itinerary : — 


Itineraey  of  Old  Home  Week  Teip. 

Tuesday,  August  13. 

Party  to  leave  the  !N'orth  Union  Station,  by  special 
train,  via  Boston  &  Maine  Railroad,  at  9.30  A.  M.,  arriv- 
ing at  the  state  line  White  River  Junction,  at  about  12.30 
P.  M.  Proceed  to  Montpelier  under  escort  of  Gen.  W.  H. 
Gilmore,  of  the  Governor's  Staff,  Members  of  State 
Old  Home  Week  Association,  Montpelier  Old  Home  Week 
Association,  and  Burlington  Old  Home  Week  Association, 
and  arriving  there  about  2.00  P.  M.  Lunch  at  the  pa- 
vilion, to  be  given  by  the  Montpelier  Old  Home  Week  As- 
sociation, to  be  followed  by  a  reception  at  Executive  Cham- 
ber, State  House,  by  Governor  and  Mrs.  Stickney.  Band 
concert  on  State  House  grounds.  Leave  Montpelier  for 
Burlington  at  about  4.30  P.  M.,  under  escort  of  Mayor 
Hawley  of  Burlington  and  members  of  Burlington  Old 
Home  Week  Association,  arriving  at  Burlington  at  about 
6.30  P.  M.     Headquarters  of  the  Association  at  the  Van 


238  SOME  EECOLLECTIONS 

Kess  House.  Band  concert  at  City  Hall  Park.  Short 
carriage  drives  about  Burlington,  by  those  who  desire 
them,  Tuesday  evening. 

Wednesday,  August  14. 

From  8.30  to  10.30  A.  M.,  carriage  drives  about  Bur- 
lington; 10.30,  embark  on  steamboat  Reindeer  for  trip  on 
Lake  Champlain;  12.00  M.,  annual  meeting  of  the  Asso- 
ciation on  board  steamboat  Reindeer;  1.00  P.  M.,  annual 
dinner  of  the  Association,  given  by  Mr.  Arthur  L.  Robin- 
son, on  one  of  the  most  beautiful  islands  of  Lake  Cham- 
plain,  to  which  Governor  Stickney,  United  States  Sena- 
tors Proctor  and  Dillingham,  Congressmen  Haskins  and 
Foster,  and  other  prominent  Vermonters,  will  be  invited; 
3.30  P.  M.,  embark  on  Reindeer  for  return  trip  to  Bur- 
lington, arriving  about  5  P.  M. ;  8  P.  M.,  reception  and 
ball  by  Burlington  Old  Home  Week  Association,  at  the 
Billings  library. 


Thursday,  August  15. 

Carriage  rides  about  Burlington  and  return  to  native 
towns,  at  which  Old  Home  Week  exercises  are  to  be  held, 
in  most  instances,  on  Friday,  August  16. 

According  to  the  foregoing  schedule,  a  party  of  about 
one  hundred  and  sixty  boarded  a  special  train  at  the  North 
Union  Station,  on  the  morning  of  August  13,  under  the 
direction  of  Mr.  Thomas  H  Hanley,  New  England  Passen- 
ger agent  of  the  Central  Vermont  Railway.  It  was  a  ves- 
tibule train,  made  up  of  four  Pullman  parlor  cars,  one 
regular  day  coach,  one  smoking  car  and  one  baggage  car; 


OF  A  LOISTG  LIFE.  239 


and  the  party  consisted  of  members  of  the  Association  and 
their  friends. 

The  weather  being  of  the  finest,  the  members  of  the 
party  in  their  happiest  moods,  at  the  thought  of  going 
back  to  the  old  home,  and  being  comfortably  seated  in  the 
spacious  accomodations  furnished,  could  indeed  say  with 
that  Vermont  bard,  Saxe, 

"Singing  through  the  forests, 
Eattling  over  ridges, 
Shooting  under  arches, 
Rumbling  over  bridges. 
Whizzing  through  the  mountains, 
Buzzing  o'er  the  vale — 
Bless  me!     This  is  pleasant — 
Riding  on  the  rail". 

A  most  pleasant  feature  of  the  occasion  was  the  official 
greeting  extended  the  visitors  at  the  state  line,  White 
River  Junction,  by  a  general  reception  committee,  ap- 
pointed for  the  purpose,  representing  the  executive  and 
legislative  departments  of  the  State  Government,  the 
Federal  Government,  and  the  Vermont  Old  Home  Week 
Associations  of  the  cities  of  Montpelier  and  Burlington, 
and  the  Central  Vermont  Railway  Company.  This  com- 
mittee was  made  up  as  follows: — 


Representing  the  Governor:  Adjutant  General  W.  H. 
Gilmore,  of  Fairlee. 

Representing  the  State  Government:  Hon.  Martin  F. 
Allen,  of  ISTorth  Ferrisburg ;  Hon.  Fletcher  D.  Proctor,  of 
Proctor. 

Representing  the  Federal  Government:  Hon.  James  L. 
Martin,  of  Brattleboro ;  Hon.  Fred  A.  Field,  of  Rutland ; 


240  SOME  EECOLLECTIONS 

Hon.  Olin  Merrill,  of  Enosburg  Falls;  Hon.  Z.  M.  Man- 
8ur,  of  ^Newport. 

Representing  the  Vermont  Old  Home  Week  Associa- 
tion :  Colonel  Charles  S.  Forbes,  of  St.  Albans ;  Hon.  Elias 
Lyman,  of  Burlington;  Colonel  Thad  E.  Chapman,  of 
Middlebury;  Hon.  Charles  H.  Darling,  of  Bennington; 
Hon.  E.  M.  Bartlett,  of  Island  Pond ;  Hon.  K  W.  Fiske, 
of  Isle  La  Motte ;  Hon.  Roger  W.  Hulburd,  of  Hyde  Park ; 
Colonel  Curtis  S.  Emery,  of  Chelsea ;  Mr.  Seymour  Lane, 
of  Newport;  Colonel  Henry  O.  Carpenter,  of  Rutland; 
Hon.  Hiram  Carlton,  of  Montpelier;  Mr.  E.  H.  Porter, 
of  Wilmington ;  Mr.  E.  J.  Wallace,  of  White  River  Junc- 
tion. 

Representing  the  City  of  Montpelier:  Hon.  Joseph  G. 
Brown,  Mayor;  Hon.  William  P.  Dillingham,  Hon.  Ben- 
jamin F.  Fifield,  Hon.  Fred  A.  Howland,  Hon.  Joseph  A. 
DeBoar,  Mr.  James  M.  Boutwell,  Mr.  L.  Bart  Cross. 

Representing  the  City  of  Burlington:  Dr.  D.  C.  Haw- 
ley,  Mayor;  Hon.  H.  A.  Woodbury,  Hon.  D.  J.  Foster, 
Colonel  F.  E.  Burgess,  Mr.  J.  B.  Henderson,  Mr.  B.  J. 
Derby. 

The  journey  of  the  reception  committee  to  White  River 
Junction  was  made  in  a  special  train,  provided  through 
the  courtesy  of  Mr.  R.  S.  Logan,  Vice  President  and  Gen- 
eral Manager  of  the  Central  Vermont  Railway  Company. 
It  consisted  of  the  official  car  "Mansfield",  a  coach,  and 
the  observation  engine  "St.  Lawrence". 

The  members  of  the  Vermont  Association  were  cordial- 
ly welcomed  by  the  several  reception  committees  upon  their 
arrival  at  White  River  Junction,  the  exercises  being 
wholly  informal.  Senator  William  P.  Dillingham  voiced 
the  greeting  on  behalf  of  the  general  committee,  and  Pres- 


,  i\  t 


^  I  iv--**** 


-«-*, 


^P^'^^^^H 

^H     ^a  IB^^^^^^H 

l^^^W'      |||Ml 

k 

^\ 

,^^^^F^    '  '^^^1 

1 

^^tp^  ■' 

>ife  '.^ 

\ 

1 

t:^^^"            : 

-   \ 

I 

^^^Mr  ■     ^ylBfc  ^^1  aiilM  ' 

^^^^m/^^^^^^^^^^^^^m  /               9^'"'^^^^^' 

1 

V^By^i 

/ 

^^^ 

1                       ^^^m^^^^^H 

i .  • 

^w 

*  t?:.' 

'  ^ 

MRS.    EDGAR    J.   SHERMAN 
(The  Judge's  first  Wife.^ 


OF  A  LONG  LIFE.  241 


ident  Edgar  J.  Sherman  responded  thereto  for  the  Asso- 
ciation. 

General  Gilmore  then,  in  behalf  of  the  Governor  and 
in  token  of  the  welcome  he  wished  to  extend  to  each  mem- 
ber of  the  Association,  presented  each  one  with  sprigs  of 
red  clover,  the  State  flower. 

The  two  special  trains  were  then  united  and  the  trip 
through  the  state  began  over  the  Central  Vermont  line. 
The  party  arrived  in  the  State  Capital  at  4  P.  M. 

The  City  of  Montpelier  was  beautifully  decorated  with 
flags,  banners  and  bunting,  and  as  the  visitors  alighted 
from  the  special  train,  the  Montpelier  Military  Band  dis- 
coursed its  choicest  strains. 

Major  J.  G.  Brown,  escorting  President  Sherman  of 
the  Boston  Association,  headed  the  procession  which 
marched  to  the  pavilion  dining  rooms,  where  a  bountiful 
lunch,  arranged  by  a  committee  consisting  of  Colonel  O. 
D.  Clark  and  R.  C.  Bowers,  was  served.  After  the  guests 
had  been  refreshed  with  their  lunch  they  repaired  to  the 
State  House,  where  an  informal  reception  was  held  in  the 
Executive  Chamber.  The  receiving  party  consisted  of  Gov- 
ernor W.  W.  Stickney,  Mrs.  Stickney,  Lieutenant  Gov- 
ernor M.  F.  Allen,  Judge  Edgar  J.  Sherman,  of  Boston, 
Mrs.  Sherman,  Hon.  W.  P.  Dillingham,  Hon.  D.  J.  Fos- 
ter, Mayor  J.  G.  Brown,  of  Montpelier,  and  Mayor  D.  C. 
Hawley,  of  Burlington. 

The  guests  were  presented  by  the  following  introduction 

committee : — 

Adjutant  General  W.  H.  Gilmore,  Surgeon  General  W. 

D.  Huntington,  Colonel  F.  E.  Burgess,  Colonel  J.  C.  Coo- 
ledge,  IST.  L.  Sheldon,  Esq.,  Hon.  J.  A.  DeBoar,  Hon.  Elias 
Lyman,  Colonel  C.  S.  Emery,  Colonel  C.  S.  Forbes,  Mr. 
Robert  T.  Phinney. 


242  SOME  RECOLLECTIONS 

A  delightful  social  hour  was  enjoyed  by  all.  The  party 
then  took  their  train  and  proceeded  to  Burlington,  which 
was  reached  about  6.45  P.  M.  The  next  day  was  spent 
on  the  Lake  with  a  dinner  on  Grand  Isle. 


Reception  at  Billings  Libeaky. 

The  festivities  of  the  day  came  to  an  end  with  a  re- 
■ception  at  the  Billings  library  in  the  evening.  About 
three  hundred  people  were  present,  half  of  the  number 
being  residents  of  Burlington,  who  found  pleasure  in  mak- 
ing the  acquaintance  of  former  Vermonters.  The  guests 
were  received  by  President  Sherman  of  the  Association, 
Mrs.  Sherman,  Mayor  and  Mrs.  Hawley,  Hon.  and  Mrs. 
Elias  Lyman,  Ev-Governor  TJ  A.  Woodbury,  Mrs.  !N^.  L. 
Sheldon,  and  Colonel  F.  S.  Burgess.  The  ushers  were 
General  T.  S.  Peck,  Mr.  D.  W.  Robinson,  Colonel  H.  W. 
Allen,  Mr.  Robert  N'oble,  Mr.  C.  S.  Van  Patten  and  Mr. 
F.  A.  Richardson. 

Shortly  after  nine  P.  M.  the  company  found  seats  in  the 
auditorium,  and  President  Sherman  stated  that  it  had 
been  decided  to  have  a  few  short  speeches.  He  spoke  of  the 
formation  of  the  association  and  of  some  of  the  prominent 
Vermonters  who  had  been  connected  with  it.  He  felt  that 
the  members  of  the  association  had  been  most  hospitably 
entertained,  and  that  the  visit  during  the  first  Old  Home 
Week  had  been  such  a  success  that  they  would  be  up  here 
fully  four  hundred  strong  next  year. 

President  Sherman  then  called  upon  Mayor  Hawley, 
who  with  Congressman  David  J.  Foster,  and  ex-Governor 
Woodbury,  made  interesting  and  appropriate  speeches. 

Light  refreshments  were  then  served,  and  the  remainder 


OF  A  LONG  LIFE.  243 


of  the  evening  was  spent  most  delightfully.  A  large  party 
"tripped  the  light  fantastic  toe"  to  the  music  of  the  How- 
ard Opera  House  orchestra,  till  the  "wee  sma'  hours" 
came,  while  others  improved  the  rare  opportunity  of  social 
intercourse,  and  all  reluctantly  left  that  seemingly  charmed 
spot  of  the  evening's  festivities. 

Early  the  next  morning,  the  party  separated,  several 
members  going  on  a  trip  to  Ausable  Chasm  and  other 
points  of  interest  on  and  near  Lake  Champlain,  while 
others  went  to  their  native  towns  to  enjoy  Old  Home  Week 
festivities  on  Friday. 

Thus  closed  the  programme,  as  laid  out  by  the  executive 
committee,  of  the  first  Old  Home  Week  trip  to  Vermont, 
and  it  was  the  unanimous  opinion  of  all  in  any  wise  par- 
ticipating in  the  trip  that  it  had  been  a  most  enjoyable 
occasion,  and,  while  an  innovation  in  the  proceedings  of 
the  association,  it  must  be  pronounced  an  unqualified 
success. 

Mrs.  Sherman  was  taken  serously  ill  before  she  reached 
home  and  died  within  a  week. 

The  annual  report  of  the  association  closed  as  follows : — 

"Following  this  occasion,  so  full  of  joy  and  pleasure, 
within  one  short  week's  time,  came  Aat  saddest  of  sad 
news,  of  the  death  of  Mrs.  Sherman,  wife  of  the  esteemed 
President  of  the  association.  Mrs.  Sherman,  being  of  a 
most  happy  disposition,  was  the  life  of  the  party,  and 
added  materially  to  the  pleasure  of  the  trip,  and  she  will 
always  be  of  most  pleasant  memory  to  all  who  were  so 
fortunate  as  to  make  her  acquaintance. 

Her  happy  disposition  and  joyous  countenance  vcdll  ever 
be  an  inspiration  to  all,  and  a  constant  reminder  that, 
truly,  'In  the  presence  of  life  is  death',  and  that  to  live 
this  life  as  did  she  is  to  be  ever  ready  for  the  life  that  is  to 
come". 


244  some  recollections 

The   Celebration   of  the   Fiftieth   Anniversary  of 
THE  Settlement  of  Lawrence. 

Second  Regular  Toast. 

"The  Commonwealth  of  Massachusetts" . 
(Responded  to  by  Judge  Sherman  of  the  Superior  Court). 

It  is  an  honor  to  speak  for  the  Commonwealth  as  the 
representative  of  two  and  a  half  million  of  people;  a 
State  which  is  foremost  in  all  that  goes  to  make  a  great 
State,  possessing  a  wealth  in  taxable  property  of  two  and 
one-half  billion  of  dollars,  which  amount  is  so  well  dis- 
tributed among  her  citizens  as  to  have,  belonging  to  her 
industrial  and  laboring  classes,  deposited  in  her  savings 
banks  four  hundred  and  seventeen  million  of  dollars ;  a 
Commonwealth  which  provides  for  and  requires  the  educa- 
tion of  all  her  children,  whose  citizens  are  so  peaceable 
and  law-abiding,  that  strikes  with  violence  and  mobs  are 
of  rare  occurrence. 

A  State  which  showed  the  loyalty  and  patriotism  of  her 
citizens  in  the  War  of  the  Rebellion  by  furnishing  for  the 
army  and  navy  over  one  hundred  and  sixty  thousand  sol- 
diers and  sailors  and  in  sustaining  a  loss  of  nearly 
fourteen  thousand  in  killed  and  of  those  who  died  of 
wounds  and  disease;  a  State  which  has  paid  out  of  its 
treasury  to  the  soldiers  and  their  families,  during  the  war 
and  since,  over  forty  millions  of  dollars. 

The  Commonwealth  is  composed  of  thirty-one  cities  and 
three  hundred  and  thirty  towns,  and  the  City  of  Lawrence 
is  the  ninth  in  population.  She,  today,  is  celebrating  her 
fiftieth  birthday,  and  we  are  invited  to  the  feast.  Coming 
then,  in  behalf  of  the  Commonwealth,  to  extend  congratu- 


OP  A  LONG  LIFE.  245 


lations,  we  find  she  has  a  population  of  over  fifty-two 
thousand  people;  a  wealth  in  taxable  property  of  over 
thirty-three  millions  of  dollars ;  that  her  wealth  is  dis- 
tributed among  the  masses,  and  so  that  her  laboring  and 
industrial  classes  have  deposited,  in  our  savings  banks, 
over  nine  millions  of  dollars;  that  her  citizens  are  enter- 
prising, successful  and  contented.  She  was  loyal  and  pa- 
triotic during  the  war,  and  furnished  for  the  army  and 
navy  nearly  three  thousand  soldiers  and  sailors. 

Lawrence  not  only  furnished  more  than  her  quota  of 
soldiers,  but  she  has  done  well  in  furnishing  statesmen  for 
the  country.  Since  she  became  a  city,  she  has  furnished 
for  the  Congress  of  the  United  States  three  of  her  citizens, 
Hon.  William  A.  Russell,  who  represented  this  district 
for  three  terms,  serving  for  a  part  of  that  time  upon  the 
Committee  of  Ways  and  Means  of  the  House  of  Eepre- 
sentatives,  and  doing  much  for  the  manufacturing  interests 
of  our  city;  Hon.  John  K.  Tarbox,  whose  memory  will 
ever  be  cherished  in  all  our  hearts,  who  served  for  one 
term;  and  Hon.  William  S.  Knox,  who  was  elected  last 
year,  and  who,  we  believe,  will  ably  represent  our  interests 
in  the  next  Congress.  We  might  also  claim,  Hon.  Moses 
T.  Stevens,  of  Ward  Seven  (ISTorth  Andover),  who  so  faith- 
fully represented  our  interests  for  the  last  four  years. 
Lawrence  has  also  furnished  officials  for  the  Common- 
wealth; an  Attorney  General,  a  Justice  of  the  Superior 
Court,  a  member  of  the  Governor's  Council,  two  Insurance 
Commissioners,  Hon.  John  K.  Tarbox,  and  Major  George 
S.  Merrill,  who  together  have  made  the  insurance  depart- 
ment outrank  those  of  all  other  States  in  the  Union.  We 
have  also  furnished  for  the  County  of  Essex  many  officers, 
notably  among  them  a  Sheriff,  in  the  person  of  Captain 
H.  G.  Herrick,  who  served  in  that  office  for  a  period  of 
nearly  thirty  years. 


246  SOME  EECOLI.ECTIONS 

Looking  down  these  tables  and  observing  the  orators 
and  statesmen,  I  feel  authorized  in  saying,  that  Lawrence 
is  willing  to  do  much  better  in  the  future ;  she  volunteers 
to  furnish  in  the  future,  men  for  Governors,  Lieutenant 
Governors,  Councillors,  Congressmen  and  State  officers, 
without  number,  and  I  feel  quite  confident,  if  she  does  not 
have  an  opportunity  to  furnish  her  share,  you  will  hear 
what  the  father  told  his  son  was  sometimes  heard.  The 
boy  said,  "Father,  what  are  those  men  doing  who  are  hold- 
ing up  their  right  hand"  ?  "Being  sworn  into  office",  re- 
plied the  father.  "Are  they  obliged  to  swear  when  they 
go  out  of  office"  ?  asked  the  son.  "No"  ;  replied  the  father, 
"but  they  sometimes  do". 

In  looking  at  the  record  of  the  municipal  affairs  of  the 
city,  I  think  I  can  speak  with  impartiality,  as  I  never 
held  a  city  office.  The  offices  have  been  held,  a  part  of  the 
time  by  one  party,  and  a  part  of  the  time  by  the  other, 
the  honors  are  about  easy,  and  the  tide  of  good  government 
has  ebbed  and  flowed,  sometimes  it  has  been  high  and  some- 
times low,  but  the  "record"  has  been  made  and  must 
stand,  no  matter  if,  like  the  old  sea  captain,  you  are  not 
satisfied  with  it.  The  mate  of  the  ship  was  an  excellent 
officer,  and  had  but  one  fault.  Once  in  six  months  be 
would  become  intoxicated.  On  one  of  these  occasions,  the 
captain  wrote  in  the  log-book,  "The  mate  is  drunk  to- 
day". When  the  mate  saw  the  entry,  he  said  to  the 
captain,  "Did  you  write  that"  ?  "Certainly  I  did"  re- 
plied the  captain.  "Why  do  you  want  to  disgrace  me  to 
the  owners"  ?  asked  the  mate.  "Were  you  not  drunk  on 
that  day"  ?  asked  the  captain.  "Certainly  I  was",  replied 
the  mate.  "Very  well  then",  said  the  captain,  "We  will 
let  the  record  stand".  A  few  days  later,  the  captain  to 
his  astonishment  discovered  on  the  log  book,  the  entry  in 
large  letters,  "The  captain  is  sober  today" !     He  flew  to 


OF  A  LONG  LIFE.  247^ 


the  mate  and  demanded,  "Did  you  write  that  in  the  log- 
book" ?  "Yes",  answered  the  mate.  "But  am  I  not  al- 
ways sober"  ?  asked  the  captain.  "Certainly",  said  the 
mate,  "but  were  you  not  sober  on  that  day"  ?  "Yes", 
yelled  the  captain.  "Well  then",  calmly  replied  the  mate, 
"we  will  let  the  record  stand". 

I  give  you,  Mr.  Chairman,  the  sentiment,  "The  City  of 
Lawrence,  may  its  records  of  good  government  in  the 
future,  be,  what  all  good  citizens  desire,  the  best  of  any 
city  in  the  Commonwealth". 


Visit  to  the  South. 

Mr.  Edward  Rotan  and  family  of  Waco,  Texas,  for 
some  years  prior  to  1900, —  had  spent  their  summers  at 
Bass  Rock,  Gloucester,  near  my  summer  home.  They 
were  pleasant  and  interesting  neighbors.  Their  family 
and  mine  became  quite  intimate. 

Mr.  and  Mrs.  Rotan  gave  Mr.  and  Mrs.  Edwin  B.  Has- 
kell of  Auburndale,  Mass.,  and  Mrs.  Sherman  and  myself 
an  urgent  invitation  to  spend  Christmas  week  (1900)  at 
their  home  in  Texas. 

The  invitation  was  accepted,  and  the  Haskells  and 
Shermans  went  to  Washington,  stopping  a  couple  of  days^ 
then  to  'New  Orleans  (a  place  I  had  not  visited  since  I 
was  there  during  the  war),  and  after  remaining  a  few 
days,  proceeded  to  Waco. 

The  Rotan  home  was  a  large  mansion  house,  beautifully 
situated  in  the  city,  well  equipped  for  hospitable  enter- 
tainment. We  learned  when  we  reached  there,  that  thej 
had  issued  invitations  for  a  grand  reception  in  our  honor, 
for  those  invited  "to  meet  Judge  and  Mrs.  Edgar  J.  Sher- 


248  SOME  EECOLLECTIONS 

man  and  Mr.  and  Mrs.  Edwin  B.  Haskell  of  Massachu- 
setts". It  was  a  grand  entertainment,  some  hundreds 
attending.  I  refer  to  one  incident  of  the  reception,  as 
showing  that  there  was  some  of  the  ante  helium  spirit 
still  remaining,  especially  among  the  women. 

As  I  was  being  introduced  to  one  lady — somewhat  ad- 
vanced in  years — she  said,  before  giving  her  hand,  "Are 
you  related  to  General  Sherman"  ?  I  replied,  smiling 
good  naturedly,  "I  have  to  confess  I  belong  to  the  same 
family,  but  as  I  once  told  the  General  himself,  not  near 
enough  to  give  him  any  special  uneasiness".  "Then  I 
do  not  want  to  know  you",  replied  the  woman.  "But", 
chimed  in  Mrs.  Eotan,  "you  are  not  going  to  blame  the 
Judge  for  what  the  General  did".  "But  I  do  not  want 
to  make  the  acquaintance  of  any  of  the  tribe",  said  the 
woman.  Then  gathered  around  us  very  many  who  had 
fought  for  the  southern  cause  (Mr.  Rotan  was  a  soldier 
in  the  southern  army)  and  laughed  and  jollied  the 
woman,  until  finally  she  shook  hands  and  said,  "that  I  had 
all  the  characteristics  of  a  gentleman,  and  of  course,  I 
was  not  to  blame  for  the  conduct  of  the  General". 

On  Christmas  morning,  Mr.  Rotan  asked  Mr.  Has- 
kell and  myself  what  we  most  desired  to  see.  We  both 
replied  a  real  southern  plantation.  Soon  we  were  driven 
out  ten  or  more  miles  to  a  large  plantation  of  many  hun- 
dred acres,  beautifully  situated.  As  we  drove  to  Mason 
House,  back  a  quarter  of  a  mile  from  the  highway,  a  fine 
looking  man,  over  six  feet  tall,  of  sixty  or  more  years  of 
age  came  out  to  greet  us. 

We  were  introduced  and  invited  into  the  house,  and 
introduced  to  the  lady  of  the  house  and  a  fine  looking  son, 
between  twenty  or  thirty  years  of  age,  tall  like  his  father. 
After  doing  what  I  suppose  no  southern  man  ever  failed 
to  do  on  a  like  occasion,  offering  us  some  good  whiskey, 


OF  A  LONG  LIFE.  249 


we  expressed  a  desire  to  walk  about  the  ranch.  That  we 
will  do,  said  the  gentlemen,  but  not  until  after  dinner. 
It  was  then  just  about  twelve  o'clock.  But,  said  Mr.  Ro- 
tan,  we  are  to  be  home  for  dinner.  But  there  was  no  use 
in  refusing ;  all  three  members  of  the  family  insisted  that 
we  must  take  seats  at  the  table  and  within  fifteen  minutes, 
we  were  partaking  of  one  of  the  best  turkey  dinners  ever 
served.  Everything  was  finely  cooked  in  the  old  brick 
oven. 

After  dinner  we  walked  about,  and,  among  other 
things,  I  saw  two  or  three  hundred  of  the  best  mules  I 
ever  saw.  It  was  a  large  fine  ranch  and  we  enjoyed  our 
visit  much.  As  sometimes  happens,  I  got  into  some  dif- 
ficulty by  too  much  talk.  As  I  was  walking  with  this  tall, 
fine  looking,  young  man,  and  having  seen  no  wife,  I  said 
to  him,  "why,  you  ought  to  be  married  and  bringing  up  a 
family".  "Well",  he  said,  "he  supposed  that  might  come 
in  due  time,  that  he  was  not  very  old  yet",  etc.  When  we 
all  came  together  again  in  our  walk,  I  said  to  the  father, 
"I  have  been  telling  your  son  that  he  ought  to  be  married, 
that  it  will  not  do  to  let  this  family  run  out",  etc.  The 
father  said,  "I  suppose  he  will  attend  to  that  in  due  time". 

When  we  returned  to  the  house,  I  told  the  mother  what 
I  had  been  saying  to  the  son.  After  we  bade  our  host 
goodbye  and  drove  away,  Mr.  Rotan  said  to  me,  "Well, 
you  have  got  yourself  into  a  pretty  mess.  I  tried  to  catch 
your  eye  when  you  were  talking  about  the  son  getting 
married,  but  I  could  not,  you  were  so  much  interested 
in  the  subject.  That  young  man",  said  Mr.  Rotan, 
"married  a  girl  from  l^ew  York,  and  brought  her  down 
here  some  years  ago,  but  she  left  him  and  has  gone  home 
and  will  not  come  back  and  live  with  him  any  more.  We 
do  not  know  the  reason,  and  that  is  all  we  know  about  it. 


250  SOME  RECOLLECTIONS 


but  the  family  are  greatly  mortified  over  it,  so  you  see 
Judge  you  were  touching  on  a  delicate  subject". 

When  we  reached  the  Rotan  home  and  told  what  had 
happened,  I  was  not  particularly  happy  over  the  day's 
experience.  If  I  am  not  a  better  man  I  am  a  wiser  one. 
I  have  learned  not  to  talk  in  a  strange  family  about  the 
marriage  of  the  young  men. 

We  remained  nearly  a  week  with  the  Rotans,  enjoying 
every  moment  of  our  visit.  From  there  we  went  to  Col- 
umbia, South  Carolina,  and  visited  for  a  couple  of  days, 
Colonel  Haskell,  a  cousin  of  Edwin  B.  Haskell.  Colonel 
Haskell  had  been  in  the  rebel  army,  making  a  fine  mili- 
tary record,  and  had  been  several  times  badly  wounded 
and  left  on  the  field  as  dead,  but  he  had  finally  survived 
the  war. 

After  the  so-called  carpet  bag  government  was  ousted 
from  offices  in  the  State,  Colonel  Haskell  entered  the  civil 
service  of  the  State.  He  was  finally  elected  one  of  the 
Judges  of  the  Supreme  Court.  He  remained  on  that 
Court  some  years,  but  finally  when  a  majority  of  the 
Court  made  a  decision  in  favor  of  allowing  the  State  to 
repudiate  its  debts,  he  resigned,  saying  he  would  no  longer 
be  a  member  of  a  Court  which  would  make  such  a  dis- 
graceful decision. 

We  enjoyed  our  visit  at  the  Haskells  and  in  Columbia 
very  much. 


Distinguished  Men  I  Have  Met. 

I  saw  President  Lincoln  at  the  White  House  in  1862 
and  had  a  pleasant  conversation  with  him.  I  saw  him  at 
another  and  later  time  at  one  of  his  receptions. 


OF  A  LONG  LIFE.  251 


I  met  General  Grant  while  he  was  at  the  head  of  the 
army  and  talked  with  him  for  twenty  minutes.  I  also 
saw  him  several  times  while  he  was  President. 

I  saw  Presidents  Pierce  and  Buchanan  before  the  war, 
and  I  have  seen  all  since,  Johnson,  Hayes,  Garfield, 
Arthur,  Cleveland,  Harrison,  McKinley  and  Roosevelt. 

I  saw  General  William  T.  Sherman  many  times.  I 
did  not  meet  him  until  after  the  war.  I  saw  him  while 
he  was  General  of  the  Army  in  his  office  at  Washington, 
in  the  War  Department.  I  sent  in  my  card,  and  when  I 
entered  his  room,  he  said,  "Well,  Mr.  Sherman,  are  we 
related"  ?  I  answered  "Yes,  General,  but  not  near  enough 
to  cause  you  any  special  uneasiness".  I  explained  to  him 
just  what  the  relationship  was,  that  we  belonged  to  the 
same  "Sherman  Family",  that  we  separated  four  gener- 
ations back  from  him.  I  found  he  was  well  up  in  the 
genealogy. 

"Well",  said  the  General,  "we  Shermans,  all  look 
alike".  After  a  little,  another  card  came  in.  The  Gen- 
eral remarked  that  probably  the  gentleman  had  never 
seen  him,  and  he  asked  me  to  take  his  chair  which  I  did, 
we  both  being  in  civilian  dress. 

As  the  gentleman  approached,  I  rose  and  offered  him 
my  hand,  and  as  he  took  it  he  said  to  me,  "I  should  know 
you  General  from  your  pictures".  I  replied,  "I  cannot 
claim  to  be  General  Sherman,  I  am  only  a  Colonel.  This 
(turning  to  the  General)  is  General  Sherman". 

"Well",  said  the  General,  "I  had  just  remarked  to 
Colonel  Sherman  that  we  Shermans  all  looked  alike". 

At  another  time,  later,  when  the  General  was  living 
in  St.  Louis,  while  I  was  visiting  Washington  with  my 
wife  and  two  eldest  daughters,  learning  that  the  General 
was  there  with  his  brother  John,  I  called  on  him  at  his 
brother's  house. 


252  SOME  EECOLLECTIONS 

I  said  to  the  General,  "I  am  here  with  my  wife  and  two 
of  my  daughters,  and  they  are  very  anxious  to  meet  you". 
His  brother  insisted  that  I  bring  them  to  his  house,  but 
I  thanked  him  and  said  no.  The  General  said,  "why  can- 
not I  call  at  your  Hotel  just  after  dinner  tonight,  say, 
half  past  seven".  I  said  that  would  be  delightful,  if  he 
would  take  the  trouble  to  do  so. 

Promptly  at  the  appointed  time,  as  we  came  into  the 
parlor  the  General  appeared.  Before  we  could  reach  him 
the  people  crowded  around  to  shake  hands.  The  General 
turned  his  back  on  them,  refused  to  shake  hands,  and  as 
I  thought  treated  them  very  rudely.  We  finally  found  a 
corner  where  we  sat  down  and  he  made  himself  very 
agreeable  to  my  wife  and  daughters.  He  partly  apolo- 
gized to  us,  for  his  apparent  rudeness,  saying,  that  it 
was  the  only  way  he  could  meet  his  friends,  on  account 
of  this  everlasting  weakness  of  our  people  to  shake  hands. 

I  met  General  Sheridan  and  also  Admiral  Farragut. 
I  had  a  delightful  conversation  with  Farragut  about  the 
capture  of  'New  Orleans. 

I  saw  Edward  Seventh  when  he  was  in  this  country  in 
1859  or  1860  as  the  Prince  of  Wales.  I  also  met  Henry 
W.  Longfellow,  John  G.  Whittier,  Oliver  Wendell 
Holmes  and  Chief  Justice  Shaw. 

I  have  entertained  at  my  house  in  Lawrence  or  at  my 
summer  home  at  Bass  Rocks,  Gloucester,  Charles  Sum- 
ner, Henry  Wilson,  Frederick  Douglass,  George  S.  Bout- 
well,  Judge  E.  Rockwood  Hoar,  Wendell  Phillips,  Dr. 
Samuel  G.  Howe,  General  Benjamin  F.  Butler,  General 
Il^athaniel  P.  Banks  and  many  other  noted  persons. 


OF  A  LONG  LIFE.  253 


I  received  the  following  letter  from  President  Eoose- 


velt  :- 


"White  House,  Washington, 

February   11,   1903. 
My  Dear  Judge  Sherman: 

Secretary  Moody  has  shown  me  your  letter  and  I  can- 
not refrain  from  writing  to  thank  you  for  it,  and  to  say 
how  much  I  appreciate  both  it  and  the  address  of  Mr. 
Haskell.  If  you  see  Mr.  Haskell  I  wish  you  would  tell 
him  how  much  I  should  like  to  have  him  come  to  Wash- 
ington so  that  I  might  go  over  with  him  everything  that 
is  being  done. 

With  great  regard,  believe  me, 

Sincerely  yours, 

Theodoke  Koosevelt. 
Hon.  Edgar  J.  Sherman, 
Judge  Superior  Court, 
Boston,  Mass". 


As  I  remember,  I  had  sent  my  friend  William  H. 
Moody,  a  letter  enclosing  some  remarks  which  Mr.  Ed- 
win B.  Haskell  had  made  at  a  club  dinner,  complimentary 
to  something  that  the  President  had  said  or  done.  I 
showed  Mr.  Haskell  the  letter,  and  the  next  time  he  was 
in  Washington  he  called  on  the  President,  and  was  in- 
vited to  dinner,  and  had  an  interesting  conversation  con- 
cerning public  affairs,  which  Mr.  Haskell  gave  me  an  ac- 
count of  on  his  return. 

Later  in  February,  1904,  while  Mrs.  Sherman  and  I 
were  in  Washington,  we  received  an  invitation  through 
Secretary  Moody  to  visit  the  President.    Mr.  Moody  took 


254  SOME  EECOLLECTIONS 

US  into  the  Cabinet  room,  and  as  the  President  came  out 
from  luncheon  presented  us.  He  received  us  kindly  and 
invited  us  into  his  room.  I  said,  "Mr.  President,  we  have 
learned  that  you  have  some  thirty  persons  in  the  ante- 
room, among  them  the  new  Chinese  Ambassador,  waiting 
to  see  you,  and  you  will  excuse  us.  We  only  called  to 
pay  our  respects".  "But",  said  the  President,  "Mr. 
Moody  has  told  me  about  you,  and  I  feel  acquainted  and 
want  to  talk  with  you".  He  kept  us  some  fifteen  minutes 
with  interesting  conversation. 


Chakles  Sumnee — James  G.  Blaine. 

While  Charles  Sumner  was  Senator,  I  visited  Wash- 
ington with  my  friend,  Elbridge  T.  Burley, — a  lawyer 
of  standing  and  ability — who  expressed  a  wish  to  meet 
Senator  Sumner.  I  volunteered  to  introduce  him,  saying 
that  I  belonged  to  the  same  club,  The  Massachusetts  Club. 
At  a  convenient  time  we  called  at  Mr.  Sumner's  rooms, 
and  I  presented  to  the  colored  messenger  a  card, 

"Edgar  J.  Sherman  and  friend,  Lawrence". 

The  messenger,  after  seeing  the  Senator,  said,  "Walk 
up  stairs,  gentlemen,  the  Senator  will  be  glad  to  meet 
you".  Mr.  Sumner  received  me  cordially,  I  introduced 
my  friend,  and  after  a  little  pleasant  conversation,  the 
colored  man  appeared  with  another  card.  "Show  him  up", 
said  Mr.  Sumner,  "these  gentlemen  will  be  glad  to  meet 
Mr.  Wade  of  Ohio,  old  Ben  Wade  as  he  is  familiarlv 
called".  We  admitted  that  we  should  be  pleased  to  meet 
Mr.  Wade. 


OF  A  LONG  LIFE.  255 


He  soon  appeared,  and  Mr.  Sumner  introduced  us  as 
"Messrs.  Sherman  and  Burley  of  Kansas*.  I  looked  at 
Mr.  Burley  in  a  manner  that  indicated  that  I  appreciated 
the  joke  which  was  clearly  upon  me  this  time. 

Upon  returning  to  Boston,  and  attending  the  Massa- 
chusetts Club,  on  the  following  Saturday,  I  related  the 
incident.  Dr.  Samuel  G.  Howe  seemed  greatly  disturbed, 
"Why",  said  the  Doctor,  "Sumner  knows  you  perfectly 
well,  he  has  dined  with  you  here  a  great  many  times,  and 
more  than  that,  I  have  talked  with  him  about  you".  I 
replied,  that  it  was  clear  he  did  not  know  me  from  Adam ; 
that  Sumner  was  not  a  politician,  and  knew  but  few  men, 
that  the  incident  did  not  affect  me,  and  that  I  was  a  great 
admirer  of  his  just  the  same. 

The  next  time  I  visited  Washington,  I  called  upon  Mr. 
Sumner,  and  this  time  he  knew  me,  and  insisted  upon  my 
dining  with  him.  Dr.  Howe  or  some  one  had  evidently 
been  talking  to  him. 


As  showing  the  difference  in  public  men,  I  think  of  an 
incident  relating  to  James  G.  Blaine.  Visiting  Washing- 
ton, while  he  was  Speaker  of  the  House,  I  attended  one 
of  his  receptions,  I  was  introduced  as  "Colonel  Sherman 
of  Lawrence".  I  never  had  met  Mr.  Blaine  before  and 
not  again  until  (I  think)  four  years  thereafter;  when 
about  to  be  presented  to  him,  upon  a  like  occasion,  he  said, 
"I  need  no  introduction  to  this  gentleman.  Colonel  Sher- 
man of  Lawrence".  I  could  not  believe  he  remembered  me ; 
I  thought  some  one  had  told  him  that  evening  who  I  was. 
Later  in  the  evening,  finding  him  at  leisure,  I  said  to  him, 

•Mr.   Sumner  mistook  the  Lawrence  for  Lawrence,  Kansas. 


256  SOME  EECOLLECTIONS 

"Mr.  Blaine,  I  am  something  of  a  Yankee,  and  I  would 
like  to  know  the  true  inwardness  of  your  calling  my  name 
this  evening.  It  cannot  be  that  you  remember  everybody 
whom  you  have  ever  met".  "Well",  said  Mr.  Blaine,  "I 
remember  names  and  faces  pretty  well.  When  I  met  you 
four  years  ago,  I  had  a  son  (I  think  he  said)  at  Phillips 
Academy,  Andover.  Andover  is  four  miles  from  Law- 
rence, and  that  gave  me  the  clue  to  remember  you  by". 


Colonel  Robert  G.  Ingeesoll. 

In  the  summer  of  1880,  Colonel  Ingersoll  was  for  near- 
ly three  months  at  the  Bass  Rocks  Hotel,  near  my  cottage 
at  Bass  Rocks,  Gloucester.  I  had  met  him  casually  before 
and  had  heard  him  lecture.  During  that  summer  I  came 
to  know  him  and  the  whole  family  intimately.  The  fam- 
ily consisted  of  Mrs.  Parker,  Mrs.  IngersoU's  mother. 
Colonel  and  Mrs.  Ingersoll,  the  two  daughters,  Eva  and 
Maude,  Mrs.  Farrell  (Mrs.  IngersoU's  sister),  her  hus- 
band and  their  daughter  Eva. 

I  was  at  the  hotel  to  see  the  family,  almost  every  day, 
and  the  Colonel  with  or  without  some  members  of  the 
family  was  nearly  as  often  on  my  piazza. 

I  never  knew  a  happier  family.  From  Mrs.  Parker  to 
the  little  Eva,  they  each  and  all  seemed  to  enjoy  life  to 
the  full.     They  were  quite  popular  at  the  hotel. 

There  was  a  large  number  of  people  from  Canada, 
stopping  at  the  hotel;  they  were  religious  people  and 
commenced  to  have  prayers  in  the  parlor  after  breakfast. 
The  manager  of  the  hotel  did  not  like  to  have  his  parlor 
thus  occupied.  He  stated  to  them  that  it  was  objection- 
able to  Colonel  Ingersoll  and  family. 


OF  A  LONG  LIFE.  257 


One  of  the  gentlemen  of  the  Canadian  party,  called 
upon  the  Colonel,  and  asked  if  he  had  any  objections.  He 
replied  that  he  had  not,  that  he  spent  his  mornings  out  of 
doors,  or  on  the  piazzas,  in  the  fields,  or  on  the  beach. 


Remenji,  the  Violinist. 

Remenji,  the  great  violinist,  was  an  admirer  of  Colonel 
Ingersoll,  and  he  came  to  the  hotel  to  visit  the  family. 
While  there,  Remenji  gave  a  violin  concert.  Invitations 
were  sent  to  the  cottages  inviting  us  all.  'No  fee  was 
charged  and  no  collection  taken.  It  was  a  free  concert  in 
honor  of  Colonel  Ingersoll.  It  was  a  fine  concert. 
Remenji  was  one  of  the  best  in  the  line,  and  all  lovers  of 
music  enjoyed  it  very  much.  But  as  all  there  were  not 
lovers  of  music,  a  few  such  kept  up  a  continual  conversa- 
tion in  whispers  or  in  low  voices,  to  the  great  disturbance 
of  the  concert.  Finally,  right  in  the  midst  of  one  of  the 
sweetest  strains  of  music,  Remenji  exploded.  He  stopped 
short.  "Here  I  am  giving  a  free  concert  and  pouring  into 
it  my  best  effort,  my  very  life,  and  there  are  a  lot  of  old 
women  cackling  like  so  many  hens".  The  Colonel  came 
forward,  and  with  great  tact,  smoothed  the  troubled 
waters;  half  apologizing  for  the  old  women,  and  also  for 
his  friend's  temper,  under  provocation.  The  audience 
sympathized  with  the  violinist.  The  concert  went  on, 
after  the  excitement  was  over,  and  there  was  no  more 
cackling  from  any  one,  and  it  did  seem  as  though  the 
artist  poured  his  whole  soul  into  the  music. 


258  SOME  EECOLLECTIONS 


Ingeesoll's  Wit. 

The  last  of  the  season  the  Colonel  delivered  a  few  lec- 
tures in  different  cities  in  Essex  County,  and  made  one 
speech  at  the  City  Hall,  Gloucester,  in  behalf  of  General 
Garfield,  the  Republican  candidate  for  President. 

From  that  time  until  the  Colonel's  death,  I  visited  him 
in  Washington  and  'New  York,  whenever  I  had  occasion  to 
go  to  those  cities.  He  seldom  visited  Boston  without  call- 
ing upon  me  or  inviting  me  to  call  on  him. 

I  insert  a  copy  of  a  letter  which  he  sent  me  after  one  of 
my  visits  to  Washington,  published  at  the  request  of 
friends,  which  is  self-explanatory.  It  shows  what  Inger- 
soU  could  do  as  a  humorist.  I  also  insert  a  copy  of  a  letter 
sent  me  May  17,  1888,  concerning  the  Goodwin  trial, 
which  shows  his  kindly  feelings  toward  me  by  over-stating 
and  over-praising  my  argument. 


"Bass  Rocks,  Gloucester, 

August  9,  1898. 
My  Dear  Friend: 

During  the  summer  of  1880,  Colonel  Robert  G. 
Ingersoll  and  his  family  were  at  the  Bass  Rocks  Hotel, 
near  my  cottage.  I  saw  them  often  and  formed  a  strong 
attachment  for  the  whole  family. 

In  the  Spring  of  1883,  I  visited  them  where  they  were 
then  living,  in  Washington. 

The  Colonel  took  but  little  exercise  and  seemed  to  be 
growing  stout.  I  recommended  exercise,  and  especially 
walking.    I  must  have  talked  "walk"  a  good  deal. 

Soon  after  reaching  home  I  received  the  following  let- 
ter.    It  has  been  read  from  time  to  time  to  friends,  who 


OF  A  LONG  LIFE.  259 


have  asked  for  a  copy.     I  enclose  it  to  those  who  have 
made  the  request  and  to  others  who  I  think  will  enjoy  it. 

Sincerely  yours. 

Edgae  J.  Shekman". 


"Washington,  D.  C,  April  26,  1883. 
Hon.  E.  J.  Sherman, 

Lawrence,  Mass. 
My  Dear  Colonel: 

After  you  went  away,  the  folks  commenced.  N'o  one 
man  ever  received  an  equal  amount  of  advice  in  an  equal 
time. 

'You  must  walk.  Colonel  Sherman  says  that  you  are 
liable  to  fall  dead  for  want  of  exercise.  Do  you  hear? 
You  must  walk'  ! 

'Yes',  said  grandmother,  'the  apoplexy  is  lurking  in 
your  blood'. 

'You  are  liable  to  be  paralyzed',  said  my  wife. 

'Or  to  die  in  your  sleep',  said  Mrs.  Farrell. 

'Or  after  you  wake  up',  chimed  in  the  baby. 

'You  must  walk',  said  Eva. 

'You  ought  to  run',  added  Maude. 

'And  never  sit  down  again  as  long  as  you  live',  shouted 
Clint. 

So  I  started  for  Georgetown,  and  walked  five  miles  be- 
fore breakfast.  Then  I  footed  it  to  the  Court,  and  walked 
home.  After  supper,  I  took  a  stroll  in  the  country,  reach- 
ing home  a  little  before  midnight.  The  next  morning  my 
calves  were  swollen  so  that  they  looked  like  yearlings. 
After  being  rubbed  down  with  whisky  and  red  pepper,  and 
oiling  my  principal  joints,  I  started  out  again  about  day- 
light, and  walked  to  Bladensburgh — distant  about  eleven 
miles.  On  my  return,  about  half-way  home,  I  was  taken 
with  cramps  and  lock-jaw.  I  managed  by  signs  to  attract 
the  attention  of  some  people  on  their  way  to  market,  and 


260  SOME  RECOLLECTIONS 


was  kindly  taken  home  in  a  cart  laden  with  garlic,  kale, 
and  sassafras. 

I  was  carried  in  very  tenderly  by  the  entire  family,  all 
of  whom  insisted  that  moke  walking  was  what  I  needed ! 

'He  stopped  and  cooled  off  too  suddenly',  said  Clint. 

'Lying  down  in  the  road  will  give  anybody  the  cramps', 
said  Maude. 

'I  guess  Colonel  Sherman  knows  what  he  is  talking 
about',  said  Mrs.  Farrell. 

'Limber  him  up  and  start  him  again',  yelled  Clint. 

So  I  was  put  to  bed — covered  with  mustard — my  legs 
straightened  out  by  putting  weights  on  my  knees — and  my 
mouth  filled  with  dried  apples  so  as  to  swell  my  teeth 
apart. 

As  soon  as  I  was  able  to  speak,  I  sent  for  Baker  that  I 
might  dictate  a  letter  to  you  for  further  instructions. 

Of  course  it  is  necessary  for  you  to  know  my  general 
condition : 

1.  Both  my  feet  are  covered  with  blisters. 

2.  The  chords  in  my  legs  are  as  tight  as  the  strings  of 
a  bass  viol. 

3.  Great  pain  in  the  small  of  my  back. 

4.  Sudden  flushes  of  heat  running  up  and  down  the 
spine. 

5.  Knees  badly  swollen. 

6.  Mind  wandering. 

7.  Pulse  about  120. 

8.  Temperature  of  the  body  115  degrees. 

9.  Fur  enough  on  my  tongue  to  make  a  seal  skin 
sacque. 

I  think  I  have  walked  enough.  The  rest  say  not.  Tele- 
graph your  opinion.  I  am  held  up  in  bed  to  sign  this 
letter. 

I  have  looked  through  WALK-er's  Dictionary  without 
finding  anything  on  the  subject.  I  have  also  read  'Plato 
on  the  Sole'. 

Yours  till  death, 

R.  G.  Ingeksoll". 


OF  A  LONG  LIFE.  261 


Ingersoll  was  a  great  lover  of  nature,  and,  independent 
in  his  views  of  religion,  which  he  seldom  intruded  upon 
others  (uninvited  ?)  he  was  a  great  and  lovable  character. 

While  the  Star  Route  trials  were  going  on  in  Washing- 
ton I  called  upon  Colonel  Ingersoll,  who  was  of  Counsel. 
He  introduced  me  to  the  presiding  Judge,  a  strong  be- 
liever in  religion.  At  the  intermission  the  Judge  invited 
me  into  his  lobby.  As  we  talked  about  Colonel  Ingersoll, 
the  Judge  said,  "When  I  learned  that  he  was  to  take  part 
in  this  trial,  I  was  unhappy,  I  regarded  him  as  a  blatant 
infidel.  After  three  weeks  of  the  trial  of  the  case,  I  have 
become  a  great  admirer  of  his.  He  can  bring  more  sun- 
shine into  a  court  room  than  any  man  I  ever  saw". 

I  would  enlarge  the  statement  by  saying,  that  he  has 
brought  more  sunshine  into  the  world  than  any  man  I 
■ever  saw. 

I  was  naturally  gratified  to  receive  the  following  note: 


"400  Fifth  Avenue, 
ITew  York,  May  17,  1888. 
My  Dear  Judge: — 

I  received  your  book  (the  Goodwin  trial)  and  read  your 
speech  and  Butler's.  You  got  away  with  the  old  man  in 
splendid  style  on  the  definition  of  insanity. 

It  is  not  often  that  I  really  get  interested  in  a  case  that 
I  am  not  in,  but  I  did  in  this,  and  particularly  in  your 
•argument.  It  is  clear,  forcible,  and  above  all  natural. 
You  started  on  a  gait  that  you  held  to  the  end,  and  every 
word  was  well  placed. 

After  reading  that  speech  I  concluded  that  you  ought 
never  to  have  gone  on  the  bench.  Your  place  is  at  the 
har. 


262  SOME  EECOLLECTIONS 

Well,  thanking  you  again  for  the  book,  and  wishing  the 
best  of  luck  that  any  Judge  ever  had,  I  remain, 

Yours  always, 

R.  G.  Ingeksoll". 


My  Religion. 

"The  Sherman  Family"  seem  to  have  been  composed  of 
religious  believers  and  unbelievers.  In  the  same  family 
were  pious  and  devout  men,  brothers  who  were  of  liberal 
opinions  and  doubters.  My  grandfather  was  a  Calvinist 
Baptist,  a  very  religious  and  devout  man.  I  do  not  re- 
member ever  to  have  seen  him  laugh ;  his  was  a  serious 
life,  without  jokes  or  frivolity.  He  acted  as  though  the 
All  Seeing  Eye  was  upon  him  all  the  time.  His  children 
were  divided,  somewhat  evenly,  one  half  Christians  and 
the  other  half  infidels  and  atheists. 

In  early  life  I  tried  to  be  a  believer,  and  afterwards, 
I  became  somewhat  of  a  doubter.  I  thought  the  matter 
could  be  settled  by  evidence  like  other  matters,  and  there- 
upon I  began  to  read  both  sides ;  I  read  a  good  deal  care- 
fully and  conscientiously  to  find  the  truth.  I  foimd, 
however,  that  it  was  not  a  matter  to  be  settled  logically  by 
reason,  but  a  pure  matter  of  faith.  Since  then  I  have 
not  tried  to  discuss  the  matter,  or  urge  my  views  of  belief 
or  unbelief  upon  others. 

I  have  read  lately  with  interest  an  article  in  the  North 
American  Review  of  October,  1907,  by  the  late  Ex-Gov- 
ernor, D.  H.  Chamberlain,  "Some  Conclusions  of  a  Free 
Thinker". 


OF  A  LONG  LIFE.  263 


General  William  T.  Sherman  had  a  son  who  went  over 
to  the  Romish  Church  and  is  now  a  priest.  My  oldest  son, 
after  becoming  an  Episcopal  clergyman  and  a  Chaplain 
in  the  U.  S.  iSTavy,  resigned  his  position  and  joined  the 
Roman  Catholic  Church. 

Whatever  my  belief,  I  have  experienced  a  happy  life, 
have  been  reasonably  prosperous,  and  vdth  a  happy  dis- 
position, have  enjoyed  my  life  from  childhood  to  old  age. 

I  have  heard  men  say,  that  if  all  there  is  of  life  is  upon 
this  earth,  then  it  is  a  delusion  and  not  worth  the  living. 
I  have  a  very  different  feeling,  I  have  enjoyed  life  to  the 
full,  and  have  no  anxiety  concerning  the  future. 


Rum. — Intoxicating  Liquors. 

The  Sherman  family,  so  far  as  I  can  learn,  have  been 
temperate  in  the  use  of  intoxicating  liquors.  My  father 
was  a  total  abstainer.  I  never  drank  liquor  of  any  kind 
until  I  entered  the  army.  In  the  Department  of  the  Gulf, 
whiskey  and  quinine  were  served  by  the  government  as 
a  preventive  to  malarial  fever.  Since  then  I  have  not 
been  a  total  abstainer.  I  have  used  the  lighter  wines  oc- 
casionally,— always  temperately. 

On  the  other  hand,  my  intimate  friends,  boys  and  men, 
have  generally  used  intoxicating  liquors  to  excess.  Many 
of  them  have  been  cut  off  from  spheres  of  usefulness  and 
gone  down  to  premature  graves.  I  have  been  a  missionary 
to  those  friends  from  boyhood  to  old  age,  and  I  believe  I 
have  saved  some  of  them;  but  the  way  is  strewn  from 
one  end  to  the  other  with  the  premature  dead.  Many  of 
them  made  strenuous  and  heroic  efforts  to  throw  off  the 


264  SOME  EECOLLECTIONS 

habit,  but  it  was  so  firmly  established  they  did  not  suc- 
ceed. 

As  I  look  back  upon  this  terrible  havoc  among  the 
brightest  of  boys  and  men  along  the  pathway  of  life,  it 
seems  to  me  if  it  could  be  seen  and  appreciated  by  the 
rising  generation,  it  would  be  the  best  temperance  lesson 
which  could  be  given. 


Second  Maekiage. 

On  the  evening  of  February  15,  1904,  I  was  married 
to  Miss  Virginia  Bryant,  my  sister's  adopted  daughter. 

Previous  to  our  marriage  my  sister  and  Miss  Bryant 
had  built  a  house  at  Jamaica  Plain.  Since  the  marriage 
we  have  resided  there,  the  family  consisting  of  my  sister, 
my  wife,  her  adopted  son,  Malcolm  Clarke  and  myself. 

The  Boston  Herald  of  Pebruary  16,  1904,  contained 
the  following  notice  of  the  marriage: — 


"The  marriage  of  Judge  Edgar  J.  Sherman  of  the 
Massachusetts  Superior  Court,  and  formerly  Attorney 
General  of  the  Commonwealth,  and  Miss  Virginia  Bryant 
of  this  city,  took  place  last  evening  at  the  residence  of 
Mrs.  Malvina  E.  Backus,  a  widowed  sister  of  the  Judge, 
on  Hampstead  Road,  Jamaica  Plain.  The  ceremony  was 
performed  by  the  Rev.  Charles  F.  Dole  of  the  First  Con- 
gregational Society.  Judge  Sherman's  eminence  at  the 
bar  long  since  gave  him  prominence  professionally,  and, 
with  his  unusual  'capacity  for  friendship',  has  made  him 
an  ever  welcome  companion  and  prominent  socially,  not 
only  at  his  old  home  in  Lawrence,  but  in  all  circles  he 
entered. 

The  bride  comes  of  old  'New  England  Bryant  stock  of 


?    -0. 


1 1. 


OF  A  LONG  LIFE.  265 


which  William  Cullen  Bryant  is  it's  most  conspicuous 
member,  and  is  a  lady  of  culture  and  refinement.  Her 
early  home  was  in  Andover,  and  from  that  pious  hilltop 
her  father,  E.  K.  Bryant,  went  out  for  service  in  the  war 
of  the  rebellion.  He  had  talent  as  an  artist  and  inventor ; 
in  fact  he  was  among  the  first  to  anticipate  the  automobile 
of  today.  He  was  wounded  at  the  battle  of  Spottsylvania 
and  died  in  Washington  a  few  weeks  later. 

In  1880  Miss  Bryant's  mother  died  and  the  following 
year  Mrs.  Backus  lost  her  only  child,  a  daughter,  between 
whom  and  Miss  Bryant  there  had  always  seemed  a  most 
striking  resemblance.  Since  that  time  Mrs.  Backus  and 
Miss  Bryant  have  made  their  home  together.  Subsequent- 
ly Mrs.  Backus  legally  adopted  Miss  Bryant  as  her 
daughter. 

For  three  years  Miss  Bryant  acted  as  dramatic  editor 
of  one  of  the  Boston  papers.  She  has  been  for  many 
years  a  member  of  Dorchester  Women's  Book  Review 
Club,  also  a  member  of  the  Appalachian  Club". 


Judicial  Dignity. 

It  is  supposed  by  the  outsiders  that  "the  serious  looking 
judges"  do  not  have  or  enjoy  jokes  or  a  little  bit  of  fun, 
now  and  then.  In  the  lobby  it  is  quite  otherwise.  They 
play  jokes  on  each  other. 

One  day  Judge  Fox  came  into  the  lobby  with  $25.00  in 
bills  in  his  vest  pocket,  the  ends  of  which  could  be  seen. 
Some  one  remarked,  "Look  out  Judge  or  some  pickpocket 
will  steal  your  money".  "I  wonder",  said  Judge  Fox, 
"how  those  pickpockets  do  their  work  without  being  de- 
tected". "Oh,  that  is  easy  enough",  said  Judge  Sherman, 
who  was  standing  near  Judge  Fox,  "they  walk  up  to  you 
this  way,  and  take  your  money  and  walk  away".  At  the 
same  time  Judge  Sherman  had  taken  Judge  Fox's  money. 


266  SOME  EECOLLECTIONS 

Soon  after  some  one  asked  Judge  Fox  for  a  loan  of  $5.00. 
Putting  his  hand  into  his  pocket,  Judge  Fox  found  that 
his  money  was  missing.  "Judge  Sherman,  have  you  my 
money"  ?  asked  Judge  Fox.  "No",  replied  Judge  Sher- 
man, which  was  true,  as  still  imitating  the  pickpocket, 
he  had  passed  it  to  Judge  Lawton. 

While  we  were  in  the  old  Court  House,  Judge  Pitman 
came  into  the  lobby  one  rainy  Saturday  morning  with  a 
new  silk  hat.  A  little  before  one  o'clock  I  went  out,  leav- 
ing Judges  Pitman  and  Blodgett  there.  Some  time  after, 
the  Court  messenger  came  to  the  hotel,  where  I  was  din- 
ing, and  asked  if  I  had  Pitman's  hat.  I  answered  that  I 
had  not.  The  next  Saturday  several  judges  were  in  the 
lobby,  including  Judges  Pitman,  Blodgett  and  myself. 
Judge  Pitman  stated,  that  he  should  think  matters  were 
coming  to  a  serious  pass,  if  new  silk  hats  were  to  be  stolen 
from  the  judge's  lobby.  He  then  exhibited  an  old  hat, 
the  same  size  as  his,  in  place  of  the  one  taken.  All 
agreed  it  was  serious.  I  remarked  to  Judge  Pitman,  "I 
am  something  of  a  detective,  I  can  tell  who  has  your  hat" ! 
"Well,  I  wish  you  would  do  so",  said  Judge  Pitman. 
^'Judge  Blodgett  has  your  hat",  said  I. 

Judge  Blodgett.  "What  do  you  mean  by  saying  that 
I  have  his  hat"  ? 

Judge  Sherman.  "I  have  nothing  to  say  except  that  it 
is  a  fact". 

Judge  Blodgett  at  once  left  the  Court  House,  without 
saying  another  word.  In  about  an  hour,  he  returned  with 
Judge  Pitman's  hat.  He  then  explained.  "I  had  just 
bought  a  Jackson  hat  of  exactly  the  same  make  and  size 
as  Judge  Pitman's,  and  I  took  his  hat  by  mistake",  l^ow 
they  both  said,  "Judge  Sherman  we  would  like  to  know 
how  you  knew  these  facts"  ? 


OF  A  LONG  LIFE.  267 


"That  is  easy  to  explain",  said  I,  "I  saw  Pitman  come 
in  with  a  new  hat  on  a  rainy  morning.  When  I  went  out 
you  both  were  here  and  alone.  I  had  not  taken  it,  so  I 
thought  Blodgett  must  have.  More  than  that,  I  felt  sure 
a  careful,  prudent  man  like  Blodgett,  would  not  have  worn 
his  new  hat,  when  he  had  an  old  one,  on  such  a  rainy 
morning".  Then  I  added  laughing,  "But  I  noticed  when 
Judge  Blodgett  left  here  to  go  to  his  home  to  see  if  he  had 
Pitman's  hat,  he  still  hung  on  to  the  new  hat,  rather  than 
take  the  old  one  which  he  had  worn  for  years".  All  the 
judges  laughed,  in  which  Blodgett  joined. 

Judge  Thompson,  while  at  the  bar,  tried  a  large  num- 
ber of  criminal  cases  while  I  was  District  Attorney. 

It  was  a  long  criminal  term  at  Lawrence,  near  its  close, 
and  we  were  trying  one  Bernard  F.  McBride  of  Lynn  for 
keeping  a  liquor  nuisance.  The  State  Constable  had 
raided  McBride's  small  grocery  store,  finding  about  a  pint 
and  a  half  of  whisky,  concealed  between  the  partitions. 

In  this  case  Mr.  Thompson  had  not  had  his  client  be- 
side him,  nor  had  he  afforded  any  evidence.  When  Mr. 
Thompson  commenced  his  argument,  he  called  upon 
McBride  to  stand  up.  He  did  so.  McBride  had  a  re- 
markably red,  rum-looking  face.  "iN'ow,  Mr.  Foreman 
and  gentlemen  look  at  Bernard,  look  at  that  face.  How 
long  do  you  think  it  has  taken  to  color  it?  How  much 
liquor  do  you  think  it  has  taken  to  do  the  business?  It 
appears  that  this  was  on  Saturday,  and  that  they  seized 
a  pint  and  a  half  of  whisky.  Do  you  think  if  Bernard 
had  only  a  pint  and  a  half,  and  he  could  get  no  more  until 
Monday,  that  he  would  sell  it"  ? 

He  further  said,  "Gentlemen,  there  are  two  kinds  of 
verdicts,  which  you  can  render,  'guilty',  which  you  seem 
well    acquainted   with,   but   there   is    another   kind,    'not 


268  SOME  EECOLLECTIONS 

guilty',   which   verdict   I  hope   my  client  Bernard  may 
hear,  and  return  home  with  a  smiling  countenance". 

Henry  Martin  was  a  Gloucester  liquor  seller.  Thomp- 
son used  to  tell  me,  when  Martin  went  over  to  the  great 
majority,  he  would  sell  liquor  there,  if  there  was  any 
chance. 

On  day,  the  Constables  seized  all  of  Martin's  liquor, 
cleared  out  his  stock  entirely.  Martin,  fearing  he  would 
lose  some  trade,  and  that  other  dealers  would  get  ahead 
of  him,  at  once  on  the  same  day,  got  in  a  new  stock,  and 
sent  the  town  crier  out  to  cry  his  wares.  (Martin  was 
being  tried  for  keeping  a  liquor  nuisance  on  that  day.) 

Hearing  of  this,  I  thought  it  was  too  good  evidence  to 
be  lost,  so  I  summoned  and  put  on  the  stand,  the  crier 
as  the  first  witness.  "Were  you  employed  by  the  defend- 
ant, Henry  Martin,  to  act  as  crier?  If  so,  what  did  he 
say  to  you"  ? 

"He  told  me  to  go  to  the  corner  of  the  streets,  and  cry 
as  follows,  after  ringing  my  bell: — 'Henry  Martin  has 
constantly  on  hand  at  his  place  of  business,  38  Duncan 
St.,  all  kinds  of  liquors,  rum,  gin,  brandy,  whisky,  etc., 
and  is  sole  agent  for  the  Bunker  Hill  Brewey  Co.'  "  This 
was  conclusive  evidence  against  Martin  and  he  was  con- 
victed. 

Thompson,  Henry  Martin  and  everybody  in  the  court 
room  laughed,  and  none  seemed  to  enjoy  the  joke  more 
than  Martin  and  Mr.  Thompson. 

While  at  my  summer  home  in  Gloucester,  and  hav- 
ing an  old  school-mate  visiting  me,  I  saw  Thompson 
driving  over  to  make  a  call.  I  went  out  to  meet  him  and 
told  him,  that  my  friend  was  a  nice  clergyman,  but  a  sort 
of  a  religious  crank,  that  I  did  not  think  he  would  say 


OF  A  LONG  LIFE.  269 


anything  to  him  (Thompson),  if  so,  he  would  understand 
the  situation. 

As  we  entered  the  house,  I  introduced  the  two  gentle- 
men. Mr.  Thompson  at  once  commenced  to  talk,  and  I 
never  heard  him  talk  faster  or  more  interestingly  for 
nearly  an  hour,  then  a  shower  was  threatening.  Thomp- 
son excused  himself  and  left  suddenly. 

After  he  had  gone,  my  friend  the  clergyman  said,  "Do 
all  of  your  judges  talk  as  much  as  this  one"  ?  When  I 
subsequently  told  Judge  Thompson  of  this  remark,  he 
laughed  heartily  and  said,  "I  intended  to  hold  the  floor". 


Asking  Leave  of  Couet  to  Wake  up  a  Jueoe. 

Charles  P.  Thompson  at  one  time  defended  most  of 
the  persons  charged  with  the  violation  of  the  liquor  law 
in  Essex  County. 

Judge  Pitman,  a  strong  prohibitionist,  was  holding  the 
Superior  Court  at  Kewburyport,  and  Mr.  Thompson  was 
acting  upon  the  theory  that  having,  say,  sixty  cases  to 
defend,  if  he  tried  only  three  or  four  cases  a  day,  and  the 
Court  had  only  two  weeks  before  it  would  be  required  to 
adjourn,  quite  a  number  of  the  cases  would  have  to  go 
over  to  the  next  term,  and  perhaps,  in  the  meantime,  some 
of  the  witnesses  would  disappear  and  those  cases  could 
not  be  tried.  So  Mr.  Thompson  took  all  the  time  he 
could  in  cross-examination  of  the  government  witnesses 
and  then  argued  every  case  an  hour, — the  longest  time 
allowed  under  the  rule  of  Court.  There  really  was  no 
defence  to  these  cases,  so  Mr.  Thompson  had  to  "talk 
against  time",  quoting  from  the  Bible,  Watts'  Hymns, 
Shakespeare,  etc.,  etc. 


270  SOME  RECOLLECTIONS 

Judge  Pitman  was  very  unhappy  over  this  condition 
of  affairs;  thought  this  conduct  on  the  part  of  Mr. 
Thompson  reprehensible  and  unprofessional,  tending  to 
bring  the  Courts  of  Justice  into  contempt,  and  whenever 
he  saw  an  opportunity  he  would  reprimand  Mr.  Thomp- 
son. 

One  day,  while  Mr.  Thompson  was  arguing  a  case,  hav- 
ing his  voice  pitched  on  the  high  key  when  the  Judge  in- 
terrupted, saying  "Mr.  Thompson,  there  is  no  occasion  for 
your  hallooing  loud  enough  to  take  the  roof  off  the  court 
house ;  the  jurors  are  not  deaf" ! 

Mr.  Thompson,  good-naturedly,  said,  "Perhaps,  your 
Honor,  I  was  speaking  rather  loudly.  I  will  lower  my 
voice". 

It  being  a  warm  day,  one  of  the  jurors  closed  his  eyes, 
when  Mr.  Thompson,  with  a  dramatic  gesture,  said, 
"Your  Honor,  I  notice  that  one  of  the  jurors  is  asleep.  I 
trust  your  Honor  will  allow  me  to  speak  loud  enough  to 
wake  him  up" ! 

A  laugh  went  around  the  court  room,  the  sheriff  cried 
"Order  in  Court",  the  juror  opened  his  eyes,  and  Mr. 
Thompson  went  on  with  his  argument. 

At  the  time  of  completing  our  new  Court  House  at 
Lawrence,  we  had  a  dedicatory  banquet,  at  which  the 
three  judges  of  the  Superior  Court,  Sherman,  Bell,  and 
DeCourcy,  were  present. 

Ex-Congressman  William  S.  Knox  made  a  speech;  one 
paragraph  will  bear  repeating: 

"We  have  a  new  Court  House,  which  has  cost  the  coun- 
ty so  much  (naming  the  figure),  and  it  is  worth  all  it  has 
cost  us;  we  have  a  pretty  good  library,  which  has  cost  us 
so  much,  and  it  is  worth  all  it  has  cost  us;  and  we  have 


OF  A  LONG  LIFE.  271 


three  judges  of  the  Superior  Court — they  cost  us  nothing, 
and  they  are  worth  all  they  cost  us". 

A  story  has  been  in  circulation  for  some  time  concern- 
ing Judge  Bishop  and  myself.  Perhaps  it  is  better  to  tell 
the  whole  story. 

At  one  of  the  meetings  of  the  Justices,  which  I  have 
been  in  the  habit  of  calling  our  Quarterly  Conference, 
we  were  considering  the  question  of  employing  women 
stenographers. 

Some  of  the  justices  were  strongly  opposed  to  their 
employment ;  they  said  it  might  cause  scandal,  etc. ; 
others  favored  the  employment  of  a  reasonable  number. 
The  arguments  on  the  one  side  and  the  other  became  quite 
earnest.  Judge  Bishop  argued  against  and  I  for  their 
employment.  I  argued  that  if  they  passed  as  good  or  bet- 
ter examinations  than  the  men  they  should  have  the 
places,  that  we  had  already  tried  the  experiment  (we  then 
had  a  few  women  stenographers)  that  it  had  proved  a  suc- 
cess, and  that  we  had  heard  of  no  scandal  thus  far.  Judge 
Bishop  then  turned  to  me,  as  if  to  settle  the  whole  matter 
by  a  question,  and  said,  "  Judge  Sherman,  if  I  was  hold- 
ing the  equity  session,  and  after  the  Court  adjourned 
I  wanted  to  consult  the  stenographer  and  she  was  a 
female,  would  you  think  it  safe  and  proper,  after  the 
other  judge  had  gone,  to  send  for  her  and  meet  her  here 
alone"  ? 

I  replied,  "As  the  oflacers  are  always  in  the  room  across 
the  hall  way,  I  do  think  it  would  be  safe  for  you,  as  if 
anything  happened,  you  could  hallo".  The  serious  and 
sedate  judges  smiled,  and  Judge  Bishop  did  not  seem  of- 
fended at  my  answer. 

It  was  decided  to  give  the  women  a  fair  chance  in  the 
competitive  examinations. 


CHAPTER  XIV. 


THE  JUBILEE  BAI^QUET,  MARCH  ITth,  1908. 


The  first  suggestion  of  the  banquet  to  Judge  Sherman 
came  from  Henry  F.  Hurlburt  and  Boyd  B.  Jones  in  the 
followincr  letter: 


'■t3 


Boston,  Dec.  14,  1907. 
William   H.    Kiles^   Esq.,   Bynn,   Mass. 
Dear  Mr.  Niles: — 

In  a  very  short  time  I  presume  you  will  be  making  ar- 
rangements for  the  Essex  Bar  dinner.  It  occurred  to  Mr. 
Jones  and  myself  to  make  a  suggestion  to  you  which  we 
think  would  be  met  with  favor  by  all  the  members  of  the 
bar,  and  in  addition  would  make  the  evening  an  eventful 
one. 

Judge  Sherman  has  been  at  the  bar  and  upon  the  bench 
fifty  years  the  early  part  of  next  year.  The  Middlesex 
Bar  Association  has  heretofore  honored  the  meaibers  of 
the  bench  who  were  taken  from  their  bar,  having  given  a 
dinner  to  Judge  Hammond,  and  one  this  year  in  honor  of 
Judge  Mclntyre  of  the  Probate  Court.  It  is  a  very 
appropriate  thing  to  do,  and  as  Judge  Sherman  started 
in  Essex  County  and  occupied  a  position  of  District 
Attorney  there  for  many  years,  having  been  Attorney  Gen- 
eral and  now  the  senior  Justice  of  the  Superior  Court,  it 


OF  A  LONG  LIFE.  273 


seems  to  us  as  though  the  Bar  Association  would  be  doing 
itself  an  honor  by  having  the  next  Bar  dinner  given  in 
honor  of  Mr.  Justice  Sherman.  If  the  dinner  is  given 
in  his  honor,  you  will  have  no  difficulty  in  having  a  large 
number  of  the  Judges  present  to  do  honor  to  the  guests. 
We  trust  that  this  suggestion  will  appeal  to  you,  and 
we  shall  be  pleased  to  hear  from  you. 

Very  sincerely  yours, 

Heney  F.  Huklbukt. 


JUDGE  SHERMAK 


The  complimentary  banquet  to  be  given  by  the  Essex 
Bar  Association  to  Judge  Edgar  J.  Sherman  of  the 
Superior  Court  this  evening,  in  recognition  of  the  fiftieth 
anniversary  of  his  admission  to  the  bar,  will  bring  to- 
gether a  fine  array  of  distinguished  judges  and  lawyers 
who  will  delight  to  pay  appropriate  tribute  to  the  guest  of 
honor.  The  Massachusetts  bench  has  been  adorned  by 
many  eminent  jurists,  famous  in  many  ways,  but  the 
career  of  few  of  them  have  been  characterized  by  loftier 
ideals,  or  by  sounder  common  sense,  in  the  administration 
of  justice  than  Judge  Sherman  has  been  wont  to  display 
during  his  long  and  devoted  judicial  service. 

Editorial  in  the  Boston  Herald,  March  17,  1908. 


274  SOME  EECOLLECTIONS 


OKGANIZATION 

OF  THE 

ESSEX  BAR  ASSOCIATION". 


President, 
William  Henry  Niles. 

Secretary, 
Aldbn  Perley  White. 

Treasurer, 
Erank  Vernon  Wright. 

Executive  Committee, 

Charles  Augustus  Sayward,   Nathaniel  Nelson  Jones, 
Harry  Robinson  Dow,  Joseph  Erancis  Quinn, 

James  Henry  Sisk,  Charles  Albert  Russell, 

Erancis  H.  Pearl, 

Committee  on  Banquet, 
Edward  Barton  George. 

Chorister, 
Edward  Mark  Sullivan. 


OF  A  LONG  LIFE.  275 


GUESTS. 


Hon.  Edgar  J.  Sherman, 
Senior  Justice  of  the  Superior  Court; 

Hon.  Marcus  P.  Knowlton,  Chief  Justice, 

AND 

Hon.  James  M.  Morton,  Hon.  Henry  K.  Braley, 

Hon.  John  W.  Hammond,  Hon.  Henry  N.  Sheldon, 

Hon.  William  C.  Loring,  Hon.  Arthur  P.  Eugg, 

Associate  Justices  of  the  Supreme  Judicial  Court; 

Hon.  William  L.  Putnam, 
Judge  of  the  United  States  Circuit  Court  of  Appeals; 

Hon.  Clarence  Hale, 
Judge  of  the  United  States  District  Court  of  Maine; 

Hon.  Frederick  Dodge, 
Judge  of  the  United  States  District  Court  of  Massachusetts; 

Hon.  John  Adams  Aiken,  Chief  Justice, 

and 
Hon.  Egbert  E.  Bishop,         Hon.  Edward  P.  Pierce, 
Hon.  Franklin  G.   Fessen-  Hon.  Jabez  Fox, 

DEN,  Hon.  Charles  A.  DeCourcy, 

Hon.  James  B.  Eichardson,  Hon.  Eobert  0.  Harris, 
Hon.  Francis  A.  Gaskill,      Hon.  Lloyd  E.  White, 
Hon.  John  H.  Hardy,  Hon.  John  C.  Crosby, 

Hon.  William  B.  Stevens,     Hon.  William  F.  Dana, 
Hon.  Charles  U.  Bell,  Hon.  John  F.  Brown, 

Hon.  Frederick  Lawton,       Hon.  George  A.  Sanderson, 
Hon.  Egbert  F.  Eaymond, 
Associate  Justices  of  the  Superior  Court; 


276  some  kecollections 

Hon.  Dana  Malone, 
Attorney  General; 

Hon.  John  D.  Long, 
Ex-Governor ; 

Hon.  John  L.  Bates, 
Ex-Governor ; 

Hon.  Albert  E.  Pillsbury, 
Ex- Attorney  General; 

Hon.  Melvin  0.  Adams, 
Ex-TJnited  States  District  Attorney; 

Hon.  Boyd  B.  Jones, 
Ex-United  States  District  Attorney. 


OF  A  LONG  LIFE.  2i77i 


ESSEX  BAR  DINNER 


(There  were  some  three  hundred  members  of  the  bar 
in  attendance  at  the  banquet.) 

President  Niles,  on  arising  to  call  the  company  to 
order,  was  greeted  with  prolonged  applause  and  cheering. 
He  spoke  as  follows: 

Gentlemen  of  the  Essex  Bar  Association: — 

Eor  the  sixth  time  it  is  my  privilege  and  great  pleasure 
to  greet  you  at  the  annual  banquet  to  our  Association, 
and  in  your  behalf  to  extend  to  our  distinguished  guesta 
the  most  sincere  and  hearty  welcome  of  the  Association, 
and  to  assure  them,  and  each  one  of  them,  of  our  heartfelt 
appreciation  of  the  honor  they  confer  upon  us  by  their 
presence. 

In  referring  to  the  honor  they  do  us,  I  do  not  forget 
that  they  come  not  so  much  to  honor  us  as  to  honor  our 
chief  guest,  and  to  join  us  in  the  celebration  of  the  fiftieth 
anniversary  of  his  admission  to  the  bar. 

Judge  Sherman  has  been  a  valued  member  of  our 
association  for  many  years,  and  throughout  all  this  time 
has  been  so  actively  and  so  earnestly  interested  in  the 
work  of  the  association  that  while  we  know  that  our 
guests  come  principally  to  honor  him,  they  also  by  honor- 
ing him  highly  honor  us. 


278  SOME  EECOLLECTIOlSrS 

My  acquaintance  with  Judge  Sherman  reaches  back 
nearly  forty  years,  and  during  that  time  I  have  personally 
been  greatly  indebted  to  him  for  advice  and  assistance  in 
my  profession.  I  never  knew  a  member  of  the  bar  who 
exercised  a  more  friendly,  watchful  care  of  his  brethren, 
or  who  was  more  free,  generous,  or  painstaking  in  his 
efforts  to  help  them  on  and  to  aid  them  in  finding  the 
right  way.  It  would  therefore  give  me  much  pleasure  to 
speak  of  him  as  District  Attorney,  as  Register  in  Bank- 
ruptcy, as  Attorney  General,  and  as  Judge  of  the  Superior 
Court,  in  all  of  which  offices  I  have  known  him  well,  and 
have  observed  the  honor  which  he  has  reflected  upon  every 
one  of  them,  but  another  member  of  our  bar  will  speak 
in  this  behalf  for  our  Association,  and  I  leave  that  pleas- 
ure to  him,  without  trenching  upon  the  part  which  he  will 
so  fitly  and  gracefully  perform. 

We  have  many  eminent  guests  with  us  and  I  know  how 
much  it  would  gratify  you,  if  the  time  permitted,  to  hear 
from  every  one  of  them,  but  our  time  is  so  limited  that 
we  shall  not  be  able  to  afford  ourselves  that  pleasure.  We 
hope  that  at  some  time  not  far  distant  we  may  have  with 
us  again  the  guests  who  do  not  speak  tonight  and  that  we 
may  then  be  permitted  to  listen  to  them. 

As  every  moment  I  detain  you  diminishes  to  that  ex- 
tent the  time  which  we  have  allotted  to  those  who  are  to 
address  you,  and  whom  I  know  you  are  so  anxious  to  hear, 
you  will  commend  me  if  I  at  once  give  way  to  others,  and 
you  would  not  be  willing  to  pardon  me  if  I  failed  to  do  so. 

Gentlemen,  up  to  the  last  moment  I  have  been  watch- 
ing that  door  expecting  to  see  our  brother  Moody  enter  it. 
(Applause.)  I  have  reason  to  suppose  that  he  has  left 
New  York  and  is  on  his  way  here.  A  telegram  has  been 
received  here  addressed  to  him,  but  he  has  not  arrived. 
A  letter  was  received  by  me,  however,  from  him,  saying 


OF  A  LONG  LIFE.  279 


that  he  thought  it  impossible  for  him  to  reach  here  and  I 
will  ask  our  Secretary  to  read  that  letter.  Several  other 
letters  have  been  received,  but  of  those  that  have  been  re- 
ceived I  will  ask  the  Secretary  to  read  those  that  I  have 
handed  to  him. 


Seceetaey  White:  Mr.  President,  these  are  the  words 
of  Mr.  Justice  William  H.  Moody  of  the  United  States 
Supreme  Court: 

Supreme  Couet  of  the  United  States. 
Washington,  D.  C,  March  15,  1908. 
My  Dear  Mr.  Niles: 

"1  had  hoped  up  to  yesterday  afternoon  that  I  might 
be  able  to  be  with  you  on  Tuesday  night,  but  it  cannot  be. 
I  think  that  you  and  my  brethren  of  the  Bar  will  need 
no  other  assurance  that  I  cannot  come  than  lies  in  the  fact 
that  I  do  not  come,  so  I  will  waste  no  time  on  that. 

It  distresses  me  very  much  to  be  deprived  in  a  share 
of  this  manifestation  of  respect  and  affection  for  our 
brother  and  friend  Sherman,  but  I  am  comforted  by  the 
thought  that  my  absence  at  the  command  of  duty  will  to 
him,  who  burning  with  fever,  in  violation  of  the  orders 
of  the  surgeon,  led  the  companies  who  carried  the  colors 
in  the  charge  at  Port  Hudson,  need  no  explanation  or 
excuse.  ^(Applause.) 

I  came  to  know  well  Colonel  Sherman,  as  we  then 
called  him,  soon  after  my  admission  to  the  Bar,  and 
formed  a  frienship  with  him  which  I  hope  and  believe 
has  constantly  strengthened  to  this  day.  He  was  then 
District  Attorney,  with  an  unerring  instinct  for  the  jugu- 


280  SOME  EECOLLECTIONS 

lar  vein  of  the  proved  offender  (laughter),  yet  vigilant  to 
protect  innocence  and  with  a  humane  allovi^ance  for  the 
frailities  of  mankind. 

On  the  civil  side  of  the  court  he  met  on  equal  footing, 
those  leaders  of  the  Bar  who  have  long  since  ended 
their  strivings.  As  a  sagacious  adviser  and  as  an  effective 
prosecutor  of  crime,  he  equalled  the  best  of  our  attorneys 
general.  Mr.  Justice  Holmes,  who  here  sits  next  me 
on  the  Bench,  never  tires  of  describing  the  argument  in 
Commonwealth  v.  ISTicholson,  which  first  arrested  and  then 
turned  the  tide  of  sympathy  which  was  running  in  favor 
of  a  deliberate  murder,  and  compelled  a  just  verdict  of 
condemnation. 

I  well  remember  predicting  when  he  was  appointed 
to  the  Bench  that  he  would  exceed  the  expectations  of  his 
best  friends.  I  now  triumphantly  call  upon  our  brethren 
to  bear  witness  to  the  truth  of  my  prophecy.  As  a  Judge 
he  has  not  been  content  to  preside  over  the  disputes  of 
counsel,  to  deliver  a  charge  free  from  academic  error  and 
leave  the  jury  to  bear  their  burden  unaided.  (Laughter 
and  applause,  in  the  midst  of  which  the  Secretary  paused 
for  a  moment  in  his  reading). 

Judge  Sheeman:  Go  on.   (Laughter.) 

The  Secret aky:  (Reading). 

"He  has  felt  responsibility  for  the  justice  of  the  verdicts 
in  his  court  (renewed  laughter),  and  within  the  limits 
prescribed  by  the  law  (applause),  but  up  to  them  (great 
laughter),  he  has  aided  the  juries  in  ascertaining  and  de- 
claring the  truth.  He  has  realized  that  trial  by  jury  would 
be  a  failure  without  the  help  of  a  strong  and  fearless  pre- 
siding justice.  (Applause). 

"We  are  not  likely  to  overestimate  the  value  to  the  com- 
munity of  a  life  like  that  of  Judge  Sherman.     Let  us  do 


OF  A  LONG  LIFE.  281 


him  all  honor,  wish  him  life  and  health  and  happiness, 
and  assure  him  that  he  has  troops  of  friends.  Tell  him 
that  I  am  among  the  chief  of  those  friends  and  I  offer  to 
him  and  to  my  dear  brethren  of  the  Essex  Bar  my  loving 
remembrances. 

Sincerely, 

William  Heney  Moody." 


(Great  applause.) 


Me.  White.    I  read  the  letter  of  Hon.  Herbert  Parker, 
Ex- Attorney-General. 


Boston,  Massachusetts. 

March  17,  1908. 

William  H.  !N'iles,  Esq., 

President  Essex  Bar  Association,  Lynn,  Mass. 

My  dear  Mr.  President: — 

The  united  Bar  of  Massachusetts  joins  in  a.  common 
sentiment  of  affectionate  respect  for  the  honored  guest  of 
the  Essex  Bar.  Present  and  absent,  we  are  all  together 
in  this.  1^0  Judge  has  ever  been  more  loved  by  lawyer 
and  laymen  alike,  for  he  has  kno^vn  the  hearts  of  the 
people,  their  strength  and  their  weakness,  sustaining  the 
one,  and  uplifting  the  other.  He  has  been  compassionate 
with  the  unfortunate  and  charitable  in  his  judgment  of 
those  who  have  sinned.  He  has  saved  a  multitude  from 
despair  and  set  them  again  in  paths  of  virtue.  He  has 
humbled  and  overwhelmed  arrogant  crime  by  austere  and 
just  punishment.     No  judge  of  our  time  has  exhibited 


282  SOME  KECOLLECTIONS 

more  instant  appreciation  of  the  true  merit  of  the  issue 
before  him.  He  has  been  always  a  nisi-prius  judge  of 
surpassing  sagacity. 

He  has  made  the  law  a  system  of  justice  and  has  ap- 
plied it  to  the  exact  maintenance  of  human  rights.  Kind- 
liness, sympathy,  generosity  and  courage  have  marked  his 
every  relation  in  life.  Though  he  has  been  deservedly  dis- 
tinguished, and  has  held,  rightfully,  positions  of  public 
honor  and  authority,  and  has  earned  their  rewards  through 
high  achievement,  yet  I  venture  to  believe  to-night  his 
happiness  is  in  the  affectionate  regard  and  love  of  all  who 
know  him.  We  envy  the  Essex  Bar  in  their  claim  to  his 
companionship,  but  we  claim  equal  right  with  them  in  his 
public  service  and  in  the  affection  to  which  he  has  given 
us  admittance. 

I  am,  with  heartiest  sympathy  in  your  celebration. 

Faithfully  and  obediently  yours, 

Heebert  Paekee. 


Peesident  N^iles:  Those  of  you  who  were  with  us  at 
our  banquet  last  year  and  who  spent  a  social  hour  with 
the  Chief  Justice  of  our  Supreme  Judicial  Court  and 
listened,  as  I  am  sure  we  all  did,  with  interest  and  delight 
to  the  admirable  address  he  then  delivered,  realize  how 
fortunate  we  are  in  having  him  with  us  again.  He  needs 
no  introduction  to  this  audience,  every  man  of  whom 
knows  him  and  regards  him  not  only  with  most  profound 
respect  but  with  sincere  affection.  I  now  present  to  you 
Chief  Justice  Marcus  P.  Knowlton. 


OF  A  LONG  LIFE.  283 


Remabks  of  Hon.  Mabcus  P.  Knowlton^ 

Chief  Justice  of  the  Massachusetts  Supreme  Judicial 

Court. 

Mr.  President  J  and  Gentlemen  of  the  Essex  Bar: 

One  year  ago  I  was  invited  to  join  you  in  expressing 
appreciation  of  a  favorite  son  of  Essex  County,  a  Justice 
of  the  Supreme  Court  of  the  United  States.  Tonight  I 
come  again  on  your  invitation  to  a  banquet  given  in  honor 
of  another  favorite  son  of  Essex  County,  the  Senior  As- 
sociate Justice  of  the  Superior  Court  of  Massachusetts. 
I  feel  personal  pride  and  pleasure  in  these  annual  meet- 
ings, for  these  favorite  sons  are  my  brothers,  children  of 
the  same  foster  mother  that  received  my  ancestors  in  old 
Ipswich  more  than  two  hundred  and  seventy  years  ago. 
(Applause.) 

My  first  definite  knowledge  of  your  honored  guest  was 
imparted  long  ago  by  one  of  the  ablest  judges  of  the  Su- 
perior Court,  who  told  me  that  Mr.  Sherman  was  the  best 
District  Attorney  in  the  Commonwealth.  (Applause.) 
l^ot  long  afterward,  at  my  first  term  of  court  in  Salem, 
he  tried  cases  before  me,  the  most  memorable  of  which 
was  an  important  suit  for  libel  brought  against  a  Roman 
Catholic  priest.  That  exceedingly  astute  and  able  lawyer, 
Stephen  B.  Ives,  was  the  leading  counsel  for  the  other 
party,  and  I  quickly  discovered  that  these  gentlemen  had 
encountered  each  other  previously  as  belligerents.  Almost 
from  the  beginning  their  zeal  and  earnestness  and  rivalry 
were  such  as  to  call  for  regulation  by  the  Court.  (Laugh- 
ter.) I  am  glad  to  say  that  after  one  or  two  gentle  re- 
minders from  the  presiding  Judge,  and  another  reminder 
that  was  not  altogether  gentle,  the  remainder  of  the  rather 
long  trial  was  conducted  most  decorously  by  both  of  them. 


284  SOME  RECOLLECTIONS 

Soon  after  this  our  friend  was  elected  to  the  office  of 
Attorney  General,  and  in  that  important  place  he  was  the 
official  adviser  of  Governor  Benjamin  F.  Butler  and  of 
two  of  his  successors,  Governor  Robinson  and  Governor 
Ames.  Of  his  experience  in  furnishing  law  for  General 
Butler  I  cannot  speak  from  knowledge.  (Laughter  and 
applause.)  We  fairly  may  assume  that  it  was  sometimes 
enlivening. 

In  September,  1887,  he  was  appointed  a  Justice  of  the 
Superior  Court.  He  took  the  place  made  vacant  by  my 
promotion,  and  in  this  succession  I  have  always  felt  great 
interest  and  satisfaction.  Different  causes  have  combined 
to  give  Judge  Sherman  special  fitness  for  the  performance 
of  judicial  duties.  By  natural  endowment  he  has  a  strong 
sense  of  justice  and  a  keen  perception  of  men's  motives. 
He  is  quick  to  perceive  the  underlying  purpose  of  an  actor, 
even  when  the  act  itself  seems  colorless.  In  his  boyhood 
and  vouth  on  the  hills  of  Vermont  he  breathed  an  exhila- 
rating  atmosphere,  and  from  the  scenes  of  beauty  that 
distinguish  his  native  state  he  brought  to  Massachusetts 
a  vigorous  and  breezy  personality.  His  experience  was 
broadened  by  service  as  an  officer  in  the  Civil  War,  so 
that  when  he  was  settled  in  the  practice  of  the  law  his 
equipment  was  not  limited  to  lessons  taught  in  schools,  but 
included  a  variety  of  weapons  forged  in  armories  remote 
from  one  another. 

As  the  Senior  of  the  twenty-five  Justices  who  sit  on  the 
Superior  Bench,  he  has  exhibited  qualities  that  have  great- 
ly strengthened  the  confidence  of  the  people  in  our  great 
trial  court.  While  by  no  means  commonplace,  his  judicial 
work  has  been  fairly  representative  of  that  of  his  asso- 
ciates. His  chief  aim  has  been  to  regulate  the  machinery 
of  the  Court  in  such  a  way  as  to  do  justice  in  individual 
cases.     In  interpreting  the  law  he  has  found  his  strength 


OF  A  LOISTG  LIFE.  285 


where  enduring  strength  lies — in  the  discovery  and  appli- 
cation of  principles,  rather  than  in  the  search  for  cases 
showing  similar  facts.  (Applause).  When  compelled 
to  make  a  legal  adjudication  in  a  new  field  he  has  asked 
himself  what  the  law  ought  to  be  upon  the  undecided 
question,  and  in  that  way  has  commonly  reached  correct 
conclusions.     (Applause). 

We  may  well  congratulate  the  lawyers  and  the  people  of 
the  Commonwealth  upon  the  men  and  the  methods  so  hon- 
orably represented  by  your  distinguished  guest.  When  we 
consider  him  and  others  like  him,  and  reflect  upon  the 
administration  of  justice  in  those  of  our  courts  that  bring 
judges  face  to  face  with  suitors  in  the  trial  of  cases,  one 
would  almost  think  that  the  Governors  of  the  Common- 
wealth had  taken  counsel  of  Lord  Bacon,  and  had  followed 
his  suggestions  implicitly.  Hear  what  he  said  to  George 
Villiers,  afterwards  Duke  of  Buckingham,  the  favorite 
minister  of  James  I,  in  advising  him  as  to  the  duties  of 
the  sovereign  in  regard  to  law  and  justice.  These  are  his 
words. 

"Let  no  arbitrary  power  be  intruded.  The  people  of 
this  kingdom  love  the  laws  thereof,  and  nothing  will  oblige 
them  more  than  a  confidence  of  the  free  enjoying  of  them. 
What  the  nobles  on  an  occasion  once  said  in  parliament, 
Nolumus  leges  Angliae  mutare,  is  imprinted  in  the  hearts 
of  all  the  people.  But  because  the  life  of  laws  lies  in  the 
due  execution  and  administration  of  them,  let  your  eye  be 
in  the  first  place  in  the  choice  of  good  judges.  These 
properties  have  they  need  to  be  furnished  with: — to  be 
learned  in  their  profession,  patient  in  hearing,  prudent  in 
governing,  powerful  in  their  elocution  to  persuade  and 
satisfy  both  the  parties  and  hearers,  just  in  their  judg- 
ment ;  and  to  sum  up  all,  they  must  have  these  three  attri- 
butes: They  must  be  men  of  courage,  fearing  God,  and 
hating  covetousness.     An  ignorant  man  cannot,  a  coward 


286  SOME  EECOLLECTIONS 


dares  not  be  a  good  judge.  (Applause.)  By  no  means  be 
you  persuaded  to  interpose  yourself  either  by  word  or  let- 
ter in  any  cause  depending  in  any  court  of  justice.  If  any 
sue  to  be  made  a  judge,  for  my  own  part  I  should  distrust 
him ;  but  if,  either  directly  or  indirectly  he  should  bargain 
for  a  place  of  judicature,  let  him  be  rejected  with  shame. 
— Vendere  jure  potest,  emerat  ille  pnus". 


Courts  organized  and  conducted  on  these  principles  are 
an  honor  to  any  state  or  nation.  Life,  liberty  and  proper- 
ty are  safe  under  such  guardians,  so  selected.  (Great  ap- 
plause.) 


President  Niles:  We  have  with  us,  notwithstanding 
the  absense  of  Judge  Moody,  three  Judges  of  the  Federal 
Courts.  Two  of  them  have  come  from  Portland  to  be  our 
guests.  Judge  Putnam,  who  comes  from  Portland,  has 
heretofore,  though  we  have  repeatedly  desired  his  attend- 
ance with  us,  been  unable  to  come,  but  this  year  at  our 
request  he  is  here  to  join  us  in  celebrating  this  anniversa- 
ry. I  appreciate  very,  very  much,  as  I  know  you  will 
appreciate,  gentlemen,  his  presence  and  the  effort  that  he 
has  made  to  be  with  us.  The  members  of  our  Bar  are  not 
often  in  the  Federal  Court,  but  certainlv  everv  one  of  our 
brethren  who  has  been  before  him  honors  him  most  highly 
as  the  rest  of  us  do  from  our  knowledge  gained  of  him 
otherwise.  Gentlemen,  I  take  very  great  pleasure  in  pre- 
senting to  you  Judge  Putnam  of  the  United  States  Circuit 
Court  of  Appeals.     (Applause.) 


OF  A  -LONG  LIFE.  28T 


Eemakks  of  Hon.  William  L.  Putnam, 
Circuit  Judge. 

Mr.  President  and  Gentlemen  of  the  Essex  Bar: — 

Sometime  since  a  friend  told  me  that  on  the  invitation 
of  that  distinguished  Essex  lawyer,  Hon.  Caleb  Cushing, 
he  attended  to  dine  with  him  at  seven  o'clock  at  his  resi- 
dence at  J^ewburyport.  He  was  there  at  seven  o'clock.  At 
nine  o'clock  Mr.  Cushing  asked  my  friend  if  he  had  dined. 
He  replied  "ISTo,  you  asked  me  to  dine  with  you".  ""'So  I 
did,  and  I  will  see  what  I  can  do".  He  took  a  candle,  he 
descended  into  the  cellar — facilis  descensus — is  not  that 
what  they  said  at  college? — brought  up  some  corned  beef, 
some  bread  and  butter  and  a  bottle  of  port  wine ;  and  said 
my  friend:  "That  was  the  most  delightful  dinner  I  ever 
had".  What  would  have  been  his  sentiment  had  he  been 
in  my  place,  dining  with  all  you  gentlemen  from  Essex, 
with  this  bountiful  dinner  and  with  the  presence  of  the 
Chief  Justice,  and  the  other  members  of  the  Supreme 
Judicial  Court  of  Massachusetts  and  of  the  Superior 
Court,  including  my  friend  for  many  years.  Judge  Sher- 
man? 

The  County  of  Essex  is  a  tremendous  equation.  Prob- 
ably there  is  no  part  of  the  world's  surface  where  so  large 
a  proportion  of  the  people  live  in  absolute  comfort,  and  in 
true  happiness,  as  in  that  county.  Seven  cities  claimed 
Homer;  Essex  County  claims  an  equal  number.  Ask  one 
gentleman  what  is  the  leading  place  in  Essex,  and  he  will 
speak  of  Lawrence,  whose  early  history  gave  us  studies 
in  sociology,  and  whose  later  days  find  her  the  residence 
of  our  friend  Charles  Upham  Bell.  Another  one  will 
speak  of  Gloucester;  another  of  dear  old  Salem,  with  my 
late  friend  IS'orthend;  the  home  of  Mr.  Perry,  a  quiet 
gentlemen  who  woke  up  one  morning  and  found  himself 


288  SOME  EECOLLECTIOXS 

famous  wherever  the  English  language  was  used  in  court ; 
the  scene  of  that  famous  incident,  when  Charles  Thomp- 
son asked  Judge  Lord  for  leave  to  wake  up  a  juryman. 
(Laughter.)  Here  one  thinks  of  Abbott,  the  prince  of  all 
clerks,  and  associate  of  all  the  judges,  and  Herrick,  whom 
we  gave  you  from  Maine,  unrivalled  as  a  Sheriff.  (Ap- 
plause.) Then  Haverhill  we  cannot  forget.  Ask  any 
man  in  Washington  about  Haverhill,  and  he  will  ask: 
"Oh,  is  not  that  the  city  Mr.  Justice  Moody  came  from"  ? 
(Applause.) 

I  have  known  the  Bar  of  Essex  thoroughly,  and  I  speak 
of  it  without  qualification  with  great  admiration.  Not- 
withstanding what  my  friend  said  here,  the  Bar  of  Essex 
has  flowed  over  into  Suffolk  County  as  did  the  Saxons 
into  England.  It  comes  into  the  Federal  courts,  and  we 
welcome  it.  There  is  a  great  deal  in  the  old  Latin  maxim, 
"Lucus  a  non  lucendo".  You  can  illustrate  so  well  a 
principle  by  stating  the  reverse  of  it.  Henry  W.  Paine, 
of  whom  Judge  Morton  was  not  long  ago  speaking,  was 
once  congratulated  on  having  a  great  fame  in  Maine  and 
a  great  fame  in  Massachusetts.  In  reply,  Mr.  Paine  told 
this  story:  There  was  a  man  at  jSTewburyport — still  in 
Essex  County — in  the  days  when  the  salmon  in  the  Merri- 
mack River  were  famous,  and  when  stage  coaches  had  not 
disappeared,  who  took  a  salmon,  carefully  boxed,  and 
started  for  Boston  to  present  it  to  the  Governor.  He 
stopped  on  his  way  at  a  tavern,  and  when  he  opened  his 
box  in  the  Capitol  here  his  salmon  had  turned  to  a  codfish. 
(Laughter.)  He  went  back  with  his  codfish,  stopped  again 
at  the  tavern,  and  told  his  story,  then  went  on  to  his  home, 
told  his  wife  the  happenings,  opened  the  box,  and  lo,  the 
salmon  reappeared.  He  threw  the  salmon  out  of  the 
window  saying:  "You  durned  old  fish,  you  are  salmon 
in    Newburyport,    you    are    only    codfish    in    Boston". 


OF  A  LONG  LIFE.  289 


(Laughter).  That  ilhistrated  Mr.  Paine's  idea  of  what 
he  was  in  Boston.  But,  gentlemen  of  the  Essex  Bar,  so 
far  as  we  find  you  in  the  Federal  Courts,  you  are  salmon 
everywhere.     (Laughter  and  applause). 

Here  Judge  Putnam  spoke  of  certain  criticisms  recent- 
ly made  on  the  Federal  Courts  and  defended  their  use  of 
the  power  of  injunction  in  certain  cases.  In  conclusion, 
he  said: 

"But,  gentlemen,  I  have  gone  away  from  my  topic.  I 
came  here  at  the  invitation  of  Mr.  Niles  to  meet  you,  to 
revive  my  memories  of  this  splendid  Bar  which  I  knew  so 
much  better  when  I  was  younger  than  now,  and  to  join 
in  paying  a  tribute  to  Judge  Sherman,  whom  I  have 
known  many  years,  with  a  deal  of  heartfelt  regard  and 
sympathy".     (Applause.) 

Peesident  N^iles:  Gentlemen,  three  year  ago,  when 
Judge  Aiken  was  appointed  Chief  Justice  of  the  Superior 
Court,  the  first  public  meeting  that  he  attended  was  a 
banquet  of  our  Essex  Bar  Association,  tendered  to  him  as 
our  principal  guest,  and  the  members  of  our  Bar  then,  in 
no  unmeasured  terms,  predicted  that  he  would  give  splen- 
did success  in  the  discharge  of  the  duties  of  that  office. 
How  mildly,  how  gracefully  and  how  efficiently  he  has 
discharged  those  duties  is  now  an.  established  fact,  and  it 
needs  no  support  from  the  members  of  the  Essex  Bar 
Association.  Yet  I  know  it  will  give  you  very  great  satis- 
faction to  hear  from  him  to-night  and  to  have  the  pleasure 
of  attesting  our  appreciation  of  the  faithful,  the  impar- 
tial, and  the  able  manner  in  which  he  has  discharged  the 
delicate  and  important  duties  of  Chief  Justice  of  that 
court.  Gentlemen,  I  now  present  to  you  Chief  Justice 
Aiken  of  the  Superior  Court.     (Applause.) 


290  SOME  EECOLLECTIONS 

Eemakks  of  Hon.  John  A.  Aiken, 
Chief  Justice  of  the  Superior  Court. 

Mr.  President,  I  assure  you  that  I  am  most  happy  to 
renew  the  acquaintance  of  three  years  ago.  Events,  sir, 
in  your  distinguished  service  as  president  of  this  associa- 
tion have  been  crowding  one  another  with  a  historic 
rapidity  that  is  amazing.  A  year  ago  in  this  hall  you 
commemorated  the  elevation  of  one  of  your  number  to  the 
highest  court  on  earth.  (Applause.)  And  since  that  time 
I  am  told  that  it  is  going  to  be  impossible  to  get  any  Essex 
County  man  to  accept  judicial  office  upon  any  court  other 
than  the  Supreme  Court  of  the  United  States.  (Laughter.) 
It  is  accordingly  well  that  you,  on  an  occasion  like  this, 
and  as  soon  as  may  be  after  the  event  of  a  year  ago,  com- 
memorate a  Justice  of  the  Commonwealth,  that  we  mav 
see  and  realize  how  distinguished  service  can  be  rendered 
at  home  with  benefit  to  the  Commonwealth.  (Applause.) 
Judge  Sherman  is  the  first  born  of  the  Superior  Court,  as 
it  is  now  constituted,  and  we  are  proud  of  him.  His  pro- 
gress through  life  has  been  preceded  by  no  Dorian  moods 
and  soft  recorders,  nor  by  Lydian  zephyrs,  there  have  been 
gales,  but  the  gales  have  been  favoring  gales.  To  start 
with,  his  natal  day  as  a  lawyer  was  a  historic  day  (ap- 
plause), and  an  intimate  acquaintance  whom  I  will 
indicate  by  a  wave  of  the  left  hand  and  leave  you  to  guess, 
says  that  an  explanation  of  a  great  many  mysterious 
things  about  Judge  Sherman  can  be  found  when  you  re- 
cur to  this  natal  day.  (Laughter.)  Fortunate  in  this 
natal  day,  fortunate  in  his  place  of  birth — for  you  have  in 
mind,  as  the  Chief  Justice  has  reminded  you,  that  he  came 
from  Vermont,  an  isolated,  peculiar,  primitive  community 
(laughter),  the  like  of  which  is  not  to  be  found  among 
the  New  England  States  or  any  of  the  other  states  of  the 


OF  A  LONG  LIFE.  291 


Union — founded  upon  limestone,  the  material  gets  into 
their  bones  and  makes  them  strong;  living  upon  moun- 
tains, they  have  the  spirit  of  the  mountaineer,  independ- 
ent and  dominating.  (Laughter).  The  two  achievements  of 
the  War  with  Spain  that  are  worth  recording  were  done 
by  Vermonters,  boys  with  Judge  Sherman.  A  brigade  of 
raw  Vermont  boys  that  never  saw  the  clash  of  arms, 
under  Stannard  turns  .the  tide  of  battle  at  Gettysburg. 
Ethan  Allen  with  "the  great  Jehovah  and  the  Continental 
Congress"  upon  his  lips  and  eighty  of  these  Vermont 
youngsters  at  his  back,  takes  the  proudest  fortress  on  the 
continent.  I  never  yet  saw  a  Vermont  boy — and  I  live 
close  to  the  line — that  did  not  come  down  from  these 
mountains  with  the  spirit  of  Ethan  Allen  in  his  breast, 
and  the  determination  to  take  a  citadel  of  some  sort  or 
other.     (  Applause. ) 

JSTow,  there,  we  have  got  a  natal  day — to  sum  up  as  far 
as  we  have  gone — and  a  good  starting  place.  He  comes 
to  Essex.  It  was  not  very  different  from  Vermont,  except 
that  the  country  was  flat.  (Laughter.)  "The  shot  heard 
round  the  world",  so  Colonel  Johnson  tells  me,  came  near 
being  fired  at  the  J^orth  Bridge  in  Salem,  and  would  have 
been  had  Pitcairn  instead  of  Leslie  been  in  command. 
Your  lads  of  Essex,  Mr.  President,  in  those  days,  were 
circumnavigating  the  globe  and  bringing  back  the  treas- 
ures of  the  East. 

ISTow,  that  is  the  next  chapter  in  Judge  Sherman's  his- 
tory. Judge  Richardson  says — and  he  is  the  most 
practical  sociologist  on  the  Superior  Court  (Laughter)  — 
that  it  is  environment  and  not  pedigree  that  makes  the 
m  an.     (  L  aughter . ) 

There  was  in  Essex  County,  and  there  is  today — for 
I  have  been  there  recently — more  experience  lying  round 


292  SOME  KECOLLECTIONS 


to  be  gathered  in  than  in  any  other  equal  area  on  this  side 
of  the  Atlantic;  and  Judge  Sherman  fills  both  baskets. 

There  is  another  element  or  incident  of  life  in  Essex^ 
now  that  I  have  that  county  in  mind,  but  I  do  not  want 
to  pass  by — that  it  is  the  home  of  that  "Broth  of  a  Boy" 
and  a  "Honey  Boy"  who  leads  your  orchestra.  (Ap- 
plause.) And  it  makes  me  want  to  go  there  myself  if  I 
can  find  out  where  he  lives. 

ISTow,  I  pass  on  to  the  third  chapter  in  this  memorable 
story.  Judge  Sherman  becomes  a  Justice  of  the  Superior 
Court.  And  with  twenty  years  of  experience  we  have 
filled  him  out  and  rounded  him  out  and  given  him  sym- 
metry and — confidence  in  himself.     (Great  applause.) 

Now,  gentlemen — 

Judge  Sherman  :  Remember,  I  have  the  close  on  you, 
(Laughter.) 

Chief  Justice  Aiken  :  You  always  have  the  last  word, 
(Laughter.) 

When  I  come  to  write  his  history — and  I  mean  ante- 
mortem,  not  post-mortem — I  am  going  to  mention  various 
things.  But  I  know  we  are  running  on  schedule  time  and 
I  see  the  President  is  saying  to  himself  that  we  are  behind 
time  already.  I  am  going  to  speak  of  that  sublime,  in- 
tuitive sense  that  always  tells  Judge  Sherman  what  ought 
to  be,  and  that  determination  that  he  always  has  to  bring- 
to  pass  as  far  as  in  his  power  what  ought  to  be.  And  I 
come  to  my  final  chapter  in  that  book,  and  it  will  have 
but  two  sentences:  "He  loved  his  fellow  men;  they  all 
loved  him".     (Great  applause.) 

President  Niles:  Gentlemen,  we  have  with  us  to- 
night for  the  first  time  at  one  of  our  banquets  a  former 


OF  A  LONG  LIFE.  293 


Secretary  of  the  ISTavy  and  Governor  of  the  Common- 
wealth, who  has  not  only  honored  himself  but  has  in  every 
place,  as  citizen,  as  Secretary,  as  Chief  Magistrate  of  the 
Commonwealth,  honored  the  Commonwealth.  I  present 
to  you  the  Hon.  John  D.  Long. 


Speech  of  Hon.  John  D.  Long. 

Our  presiding  officer  was  very  wise  and  shrewd  in  sug- 
gesting to  the  speakers  of  the  evening,  as  he  did  to  me, 
very  delicately  but  very  decidedly,  that  they  should  limit 
their  speeches  to  five  minutes  each.  Brevity  is  the  soul 
of  wit,  and  the  lack  of  it  is  the  rock  on  which  most  of  us 
after-dinner  speakers  split.  Certainly  to-night  brevity  is 
desirable,  for,  while  one  might  speak  till  morning  without 
exhausting  the  praises  of  our  beloved  and  honored  guest, 
it  is  certainly  more  fitting  that  many,  aye  each  one  here, 
should  add  a  leaf  to  the  crown  that  we  are  weaving  round 
his  head. 

Fifty  years  of  professional  life.  Fifty  years  without 
a  stain  or  a  dishonor !  Fifty  years  with  the  respect  for 
him  of  all  his  fellow-members  of  the  Bar  and  confi- 
dence in  him  of  all  his  fellow-members  of  the  old  county 
and  the  Commonwealth  accumulating  like  a  rolling  snow- 
ball! It  is  not,  of  course,  for  me,  especially  after  what 
has  been  said,  to  rehearse  the  record  of  his  career  as  citi- 
zen, lawyer,  soldier.  District  Attorney,  Attorney  General, 
and  now  and  for  many  years  a  Judge.  That  record  is  so 
bright  and  clear  that  it  stands  out  in  letters  of  light  that 
need  no  rehearsing.  Bather,  with  my  sentimental  bent, 
my  heart  turns,  as  your  hearts  turn,  to  the  true  friend- 
ship of  now  these  many  years,  the  kindly  face  and  hand 
that  have  always  given  me  warm  greeting,  the  pith  of 


294  SOME  EECOLLE€TlONS 

common  sense,  the  candor  of  sincerity,  the  freedom  from 
sham  or  affectation,  the  downright,  straightforward  hon- 
esty that  had  won  and  kept  my  respect,  yes,  my  affection, 
and  yours. 

There  are  many  types  of  what  we  call  the  IsTew  England 
character.  Of  one  of  the  best  of  these  is  Judge  Sherman. 
Born  among  the  Vermont  hills,  blown  through  with  their 
breezes,  flavored  with  the  farm,  he  yet  easily  adjusted  him- 
self to  the  environment  of  our  Massachusetts  complexity 
of  industrial,  commercial,  political,  professional  and  social 
life,  and  yet  has  never  lost  the  simplicity  and  quality 
of  the  rural  beginnings.  Who  in  all  our  Commonwealth 
is  more  noted  than  he  for  the  quaint,  apt,  homely  turn  of 
speech,  the  electric  spark  of  Yankee  mother-wit  that  has 
so  often  embraced  in  a  single  word  or  phrase  the  whole 
gist  of  an  argument,  the  rivet  of  a  demonstration  ?  (Ap- 
plause. ) 

Fifty  years  of  honest,  loyal  service!  And  he  has  his 
reward.  He  has  it  here  to-night,  not  in  treasures  which 
moth  or  rust  doth  corrupt  and  thieves  break  through  and 
steal — it  would  go  mighty  hard  with  the  thieves  if  the 
Judge  should  get  after  them — but  the  treasures  of  the 
consciousness  of  a  life  that  is  the  full  corn  in  the  ear,  the 
consciousness  of  being  loved  and  honored  bv  all  who  know 
him.  Reward !  A  leading  merchant  showed  me  the  other 
day  a  check  for  $100,000  payable  to  his  order,  which  he 
said  was  the  profit  on  a  single  venture.  Somehow  it 
touched  not  my  wonder  or  my  envy,  but  a  sort  of  pitying 
sympathy.  He  already  had  enough  and  more  than 
enough.  He  had  neither  wife  nor  child.  What  could  he 
do  with  it?  What  could  it  buy  or  bring  to  him  that 
would  add  one  cubit  to  the  stature  of  his  happiness  or  his 
comfort  or  even  his  self-respect  ?  Except  to  give  it  away 
he  might  as  well  toss  it  into  the  fire.     What  comparison, 


OF  A  LONG  LIFE.  295' 


Judge  Sherman,  could  it  bear,  or,  had  it  been  ten  times  as- 
large,  could  it  have  borne  to  the  rich  harvest  which 
crovTns  your  years  and  your  labors — you  who  have  every- 
thing that  should  accompany  old  age,  as  "Honor,  love, 
obedience,  troops  of  friends". 

Yes,  Judge,  troops  of  friends,  the  best  gift  this  world 
can  give.  And  I,  as  one  of  them  with  all  my  heart  join 
in  the  tribute  which  we  pay  to  your  good  life,  your  hard 
head,  your  true  heart.     (Great  applause.) 

Sero  in  coelum  redeas! 

President  Kiles  :  When  our  present  Attorney  General 
entered  upon  the  discharge  of  his  duties,  he  was  a  guest 
of  this  association  and  addressed  us.  He  has  not  been  with 
us  since  until  to-night.  He  is  a  successor  of  our  Brother 
Sherman  in  the  office  of  Attorney  General,  an  office  which 
he  has  certainly  well  filled  and  honored.  Gentlemen,  I 
introduce  to  you  Dana  Malone,  our  Attorney  General. 

(Applause.) 


Remarks  of  Hon.  Dana  Malone, 
Attorney  General. 

Mr.  President  and  Gentlemen  of  the  Essex  Bar: — 

This  is  the  first  notice  that  I  have  had  that  I  was  to  be 
called  upon  to  speak  this  evening.  It  is  always  a  difficult 
thing  to  speak  upon  an  occasion  like  this,  even  if  one  has 
had  some  time  for  preparation.  But  I  am  always  glad  to 
speak  when  I  can  for  the  Commonwealth,  the  great,  old 
Commonwealth  of  Massachusetts.  The  office  of  Attorney 
General  has  almost  always  been  filled  by  great  lawyers;. 


296  SOME  EECOLLECTIONS 

it  was  never  more  efficiently  filled  than  by  the  gentleman, 
the  good  Judge  whom  you  honor  here  to-night.  (Ap- 
plause). 

I  come  from  Eranldin  County,  one  of  the  smaller 
counties  of  the  old  Commonwealth,  but  the  loyalty  of  the 
county  to  the  courts  is  as  great  there  as  it  is  in  your  more 
populous  counties  in  the  east.  It  is  always  a  pleasure  to 
bear  witness  to  the  fidelity  and  the  character  of  the  Bench 
of  Massachusetts.  It  gives  me  the  greatest  pleasure,  so  far 
as  I  can  represent  the  Commonwealth,  to  extend  the  greet- 
ings to  the  members  of  the  Essex  Bar  and  to  Judge 
Sherman  and  to  say,  as  I  do  now,  that  he  has  deserved 
well  of  this  grand  old  Commonwealth.  I  thank  you.  (Ap- 
plause.) 


President  Niles:  The  senior  member  of  our  Bar  is 
present  and  I  had  hoped  that  we  might  have  time  to 
present  him  to  you,  but  as  we  must  dissolve  this  meeting 
at  about  eleven  o'clock,  our  time  is  so  short  thati  come  di- 
rectly to  what  I  promised  to  in  the  beginning,  an  address 
by  one  of  our  own  members,  who  has  been  selected  as  the 
neighbor,  the  professional  friend  of  our  Brother  Sherman, 
coming  from  his  home  city.  We  have  thought  it  fit  that 
he  should  present  to  our  brother,  in  behalf  of  our  Associa- 
tion, our  congratulations  and  our  most  affectionate  regard. 
Therefore,  without  delaying  you  another  moment,  I  take 
great  pleasure  in  presenting  to  you  our  brother  John  P. 
Sweeney  of  Lawrence.     (Great  applause.) 


OF  A  LONG  LIFE.  297 


Colonel  John  P.  Sweeney  delivered  the  following 
tribute  to  Judge  Edgae  J.  Sherman. 

Mr.  President  and  Gentlemen  of  the  Bar: 

To  have  arrived  at  a  point  in  life  which  marks  a  period 
of  fifty  years  of  service  in  the  administration  of  the  law 
is  an  event  of  some  significance  even  when  the  period  em- 
braces nothing  beyond  the  humdrum  and  routine  experi- 
ence of  the  ordinary  practitioner.  But  when  that  span  of 
life  has  been  spent  largely  in  the  public  view,  in  faithful 
and  conscientious  service  to  the  public  it  is  an  achieve- 
ment that  falls  to  the  lot  of  few  men,  and  that  is  worthy 
of  at  least  a  passing  notice.  And  when  the  close  of  that 
period  finds  the  actor  still  vigorous  and  able,  with  physical 
and  mental  powers  unimpaired,  unsoured  by  the  world 
and  sustained  by  a  cheerful  and  sane  philosophy,  still  do- 
ing the  day's  work  and  pulling  more  than  his  own  weight, 
the  occasion  is  one  for  rejoicings  and  congratulations.  A 
meritorious  record  of  service  in  the  civil  war,  for  fifteen 
years  the  district  attorney  of  Essex,  for  nine  years  a  reg- 
ister in  bankruptcy,  for  five  years  attorney  general  of  the 
Commonwealth,  for  twenty-one  years  a  justice  of  the  Su- 
perior Court,  of  which  he  is  now  the  dean  in  point  of 
service,  these  are  the  incidents  in  the  public  life  of  our 
honored  brother  whose  jubilee  as  a  lawyer  we  celebrate 
to-night. 

It  was  a  happy  thought,  a  fitting  suggestion  that  the 
annual  dinner  of  our  association  should  recognize  this 
event  in  the  life  of  our  friend,  for  Judge  Sherman  is 
peculiarly  a  representative  of  the  bar  of  Essex  County,  a 
link  in  the  chain  of  tradition  that  unites  the  present  with 
the  glorious  past.  It  seems  a  far  cry  to  1858,  when  many 
of  those  who  may  be  said  to  have  achieved  some  local  dis- 
tinction at  our  bar,   some  of  whom  have  passed  away. 


298  SOME  KECOLLECTIOr^S 


were  not  yet  born.  It  carries  us  back  to  that  golden  age, 
to  the  day  of  the  two  Lords,  of  Perry,  of  Huntington,  of 
Ives  and  of  Abbott,  names  whose  memories  we  honor,  in 
whose  distinguished  company  our  friend  began  his  prac- 
tice and  with  whom  he  was  wont  to  contend. 

And  yet  it  all  seems  to  be  an  illusion,  for  when  we  ob- 
serve him  at  his  work,  and  see  how  easily  he  does  it,  when 
we  note  the  frolic  that  enlivens  his  serious  duties,  when  he 
startles  us  with  his  quaint  comments  on  men  and  things, 
when  we  catch  the  gleam  of  that  native  shrewdness  that 
sizes  up  all  situations  and  that  penetrates  all  disguises, 
he  seems  to  us  a  child  of  the  present  age  and  we  are  forced 
to  realize  that  he  is  fully  up  to  date,  that  he  is  still  the 
friskiest  colt  in  the  judicial  pasture.  And  we  know 
that  if  he  were  coming  down  from  the  judge's  stand  and 
enter  himself  in  the  running,  he  would  be  entitled  to  no 
handicap  for  age  and  that  it  would  be  sound  judgment  to 
play  him  for  the  place.  His  conduct  seems  to  belie  his 
years,  and  he  must  not  blame  us  if  we  judge  him  by  his 
actions.  We  decline^  therefore,  to  regard  our  friend  as 
an  old  man.  In  this  instance,  we  refuse  to  be  bound  by 
the  record  or,  if  necessary,  we  will  move  to  amend  it.  To 
us  he  is  not  a  grave  and  reverend  senior  to  be  venerated 
afar  off,  but  a  lively  and  cheerful  companion  whose  flow 
of  spirits  the  passing  years  cannot  check  and  who  sets  us 
the  example  of  a  true  philosopher.  To  paraphase 
Shakespeare  a  little:  for  us  "Age  cannot  wither  nor  cus- 
tom stale  his  infinite  variety". 

This  is  neither  the  time  nor  the  place  for  an  estimate  of 
the  career  of  our  friend,  much  of  which  we  hope  and  be- 
lieve still  lies  before  him.  I  shall  not  therefore  afford 
him  the  pleasure  of  listening  to  his  own  obituary  by  an 
enumeration  of  all  the  qualities  of  mind  and  of  character 
that  have  contributed  to  his  success  upon  the  bench,  but 


OF  A  LONG  LIFE.  299 


some  of  them  are  so  conspicuous  that  an  occasion  like  this 
would  be  incomplete  without  a  reference  to  them.  ISTature 
endowed  him  with  a  large  share  of  practical  wisdom  and 
good  sense.  He  was  fortunate  also  in  possessing  the  gift 
of  a  kindly  and  social  instinct  which  led  him  to  mingle 
with  his  fellow  men,  to  become  acquainted  with  them  and 
with  the  feelings  and  motives  which  actuate  them.  His 
long  service  as  district  attorney  and  an  extensive  civil 
practice  afforded  him  ample  opportunity  for  the  study 
of  human  character,  so  that  when  he  came  to  the  bench 
he  brought  with  him  a  native  aptitude  supplemented  and 
enlarged  by  his  experience  as  a  trial  lawyer.  If  we  were 
asked  to  name  the  leading  mental  trait  of  our  friend,  I 
think  we  would  all  agree  that  it  is  his  intimate  knowledge 
of  the  world  in  its  practical  aspect.  His  life  has  not  been 
spent  in  the  closet,  but  it  has  been  lived  in  the  open,  in 
close  contact  with  human  nature.  He  knows  men  and 
things.  There  is  no  other  quality  so  valuable  for  a  nisi 
prius  judge.  Without  it,  no  matter  how  well  read  he  may 
be,  there  is  something  lacking  which  largely  neutralizes 
his  work  and  renders  it  conspicuously  defective.  My 
friend  would  never  forgive  me  were  I  to  speak  the  lan- 
guage of  undiscriminating  eulogy.  There  are  those  who 
surpass  him  in  extent  of  reading,  though  there  are  few, 
perhaps,  who  have  a  readier  working  knowledge  of  Mass- 
achusetts cases,  but  I  think  I  express  the  sentiment  of  the 
bar  when  I  say  that  our  friend  has  been  and  is  today  one 
of  the  most  useful  judges  on  the  bench,  with  a  large  ca- 
pacity for  all  round  work,  and  that  he  has  a  conspicuous 
talent  for  wise  and  practical  administration  of  the  law. 
Far  be  it  from  me  to  deprecate  that  learning  in  the  law 
which  comes  from  close  and  patient  application  to  its 
study.  I  have  a  genuine  respect  for  legal  erudition,  all 
the  greater  because  I  have  never  been  able  to  acquire  it. 


300  SOME  RECOLLECTIONS 

but  I  have  also  an  admiration  for  those  who,  without 
any  very  close  or  extensive  reading  seem  to  have  an  innate 
perception  of  legal  principles,  a  perception  which  seems 
to  be  grounded  on  that  common  sense  of  which  the  law 
is  said  to  be  the  refinement.  Some  irreverent  individual 
has  said  that  the  law  is  something  which  everybody  is  pre- 
sumed to  know,  which  nobody  does  know  and  which  the 
judges  of  the  Supreme  Court  are  paid  to  guess  at.  Our 
Supreme  Court  judges,  of  course,  have  no  occasion  to 
guess  at  the  law,  but  if,  by  guessing,  we  mean  the  gift  of 
intuition,  then  the  remark,  if  applied  to  the  justices  of 
the  Superior  Court,  is  not  irreverent.  For  to  them  there 
come  sudden  occasions  of  doubt  and  perplexity  when  new 
questions  of  law  or  practice  have  to  be  passed  upon  with- 
out the  opportunity  for  reading  or  for  consultation.  In 
such  emergencies  nobody  is  quicker  or  keener  than  our 
friend.  Judge  Sherman.  If  he  doesn't  know  what  the  law 
has  been  decided  to  be,  he  knows  what  it  ought  to  be  and 
in  unprecedented  situations  his  intuitions  are  pretty  sure 
to  be  correct. 

He  is  one  of  the  men  whom  we  seek  when  difficulties 
perplex  us,  and  whether  we  encounter  him  on  the  bench 
or  off  we  usually  get  the  shrewd  suggestion  that  makes 
the  crooked  path  plain  and  straight.  He  is  a  resourceful 
man  and  his  legal  weapons  are  always  where  he  can  lay 
his  hands  on  them.  To  young  practitioners  he  stands  in 
loco  parentis,  ever  ready  with  the  helpful  word  and  al- 
ways eager  to  render  first  aid  to  the  injured.  Unlike  one 
of  his  Vermont  maples  he  can  be  tapped  at  any  season  of 
the  year  and  nobody  ever  draws  on  him  without  getting  a 
supply  of  legal  sap.  Even  his  horse-shed  opinions  are 
valuable. 

It  has  fallen  to  his  lot  while  on  the  bench,  to  be  con- 
fronted with  many  large  and  important  cases  presenting 


OF  A  LONG  LIFE.  301 


situations  involving  new  questions,  and  his  native  sagacity 
and  practical  wisdom  have  enabled  him  to  solve  them 
with  credit  to  himself  and  satisfaction  to  the  public.  For 
Judge  Sherman  is  a  typical  New  Englander  in  whom  are 
wrapped  up  the  qualities  of  good  sense,  homely  wisdom 
and  shrewd  perception  that  go  to  make  up  the  race.  He 
has  the  solid  basis  on  which  to  ground  a  successful  career 
in  almost  any  field  of  human  activity.  These  are  the 
qualities  which,  joined  to  a  keen  discernment  of  men  and 
aifairs  have  made  him  a  strong  nisi  prius  judge,  and 
which  have  won  for  him  the  respect  and  esteem  of  the  bar. 

One  of  his  distinguishing  characteristics  is  his  tactful- 
ness.  He  has  the  rare  faculty  of  dealing  with  delicate 
situations  with  diplomatic  skill.  Wise  and  politic,  he  is 
the  great  peacemaker,  the  great  harmonizer.  Amid  the 
strife  of  contending  counsel,  he  never  loses  sight  of  the 
ground  whereon  compromise  is  possible,  and  not  the  least 
valuable  of  his  services  are  those  by  which  he  leads  par- 
ties to  a  settlement  of  their  disputes. 

When  we  are  before  him  we  know  that  long  before  the 
trial  is  over  he  has  a  correct  apprehension  of  the  truth  of 
the  controversy,  in  spite  of  its  conflicting  claims.  His 
alert  intelligence  quickly  analyzes  the  motives  of  parties 
and  witnesses,  sees  through  the  unfounded  pretensions  of 
both  sides  and  discerns  the  justice  of  the  cause  to  which 
our  zeal  as  counsel  renders  us  blind.  And  sometimes  he 
lets  us  know  that  he  sees.  Occasionally  he  puts  leading 
questions  to  counsel.  For,  although  born  in  Vermont,  our 
friend's  motto  is  emblazoned  on  the  coat-of-arms  of  the 
State  of  Maine.  Things  are  not  left  to  drift  in  his  court. 
He  has  the  notion  that  a  judge  has  some  other  function 
than  merely  to  keep  order  in  the  court.  As  a  consequence, 
there  is  something  doing  most  of  the  time  and  trials  pro- 
ceed with  some  dispatch.     While  he  recognizes  the  prin- 


303  SOME  KECOLLECTIONS 

ciples  of  practice  and  the  rules  that  govern  evidence  and 
gives  fair  scope  to  legitimate  strategy,  nothing  that  he 
thinks  savors  of  chicane  or  is  at  war  with  substantial  jus- 
tice ever  gets  by  the  Court.  And  before  him  the  young 
and  inexperienced  practitioner,  with  justice  on  his  side, 
has  a  fair  chance  to  use  his  sling. 

The  thing  that  interests  us  most  in  the  trial  of  a  case 
is  the  judge's  charge.  While  the  walls  are  still  echoing 
our  eloquence  and  the  jurors  are  struggling  out  from  un- 
der the  avalanche  of  words  in  which  we  have  buried  them 
and  striving  to  throw  off  the  hypnotic  spell  that  we  have 
cast  upon  them,  the  judge  rises  to  make  his  charge,  and 
we  sit  up  and  begin  to  take  notice.  A  disting-uished 
member  of  the  bar  gave  me,  the  other  day,  an  imitation  of 
what  he  calls  the  phonographic  charge  in  personal  injury 
cases,  consisting  of  a  string  of  severely  correct  legal  plat- 
itudes, interspersed  with  quotations  from  decisions  in  the 
plain  and  simple  language  of  the  Supreme  Judicial  Court 
that  is  so  readily  comprehensible  by  the  average  juryman. 
"Now,  nobody  ever  heard  Judge  Sherman  deliver  a  phono- 
graphic charge.  Once  in  a  while  he  gives  us  Com.  vs. 
Toohey,  but  as  a  rule  his  charges  are  expressed  in  a  lan- 
guage that  is  peculiarly  his  own.  If  a  hypercritical  lis- 
tener might  deem  them  lacking  in  literary  merit  they  have 
at  least  the  undeniable  merit  of  having  some  relation  to 
the  facts  in  the  case.  You  might  think  that  sometimes 
they  are  too  closely  related — next  of  kin,  as  it  were,  de- 
pending upon  which  side  of  the  case  you  happen  to  be  on. 
They  are  spoken  in  the  vernacular  and  usually  contain 
some  quaint  and  homely  illustrations  that  appeal  to  the 
common  sense  and  judgment  of  practical  men.  They  are 
not  lacking  in  local  color.  Sometimes  it  may  seem  that 
the  color  is  laid  on  a  little  too  thick,  but  the  judge  does 
not  belong  to  the  severely  classical  school  of  word-paint- 


OF  A  LONG  LIPE.  303 


ers,  but  rather  to  the  modern  impressionistic  school,  in 
which  the  paint  is  put  on  with  free  and  easy  strokes  of 
the  brush.  And  they  usually  make  an  impression,  on  one 
side  or  the  other,  I  have  heard  charges  that  satisfied 
neither  side — but  never  from  Judge  Sherman.  But,  after 
all,  it  is  only  a  question  of  perspective.  When  we  are  too 
near  the  picture  we  see  only  the  brush  marks.  We  cannot 
see  the  forest  for  the  trees.  But  when  the  contentions  of 
the  hour  are  past  and  we  are  able  to  look  back  upon  the 
event,  free  from  zeal  or  bias,  when  we  regard  them  in  the 
tout  ensemble,  they  appear  to  have  been,  after  all,  what 
justice  required. 

ivTevertheless,  it  is  cruel  sometimes  the  way  in  which 
he  demolishes  the  structures  we  have  so  carefully  built  in 
argument,  or  punctures  the  bladders  on  which  we  have 
fondly  hoped  to  swim  with  a  favoring  tide.  It  makes  us 
gasp,  too,  to  see  him  get  around  the  end  and  run  off  with 
the  ball.  But  it  is  done  with  an  apparent  guilelessness 
that  compels  our  admiration. 

Among  the  traits  that  we  admire  in  our  friend  is  his 
courage,  the  courage  that  makes  him  ready  to  assume  re- 
sponsibility and  to  act  when  action  is  required.  In  a  try- 
ing situation,  in  a  time  of  misdirected  popular  sentiment, 
when  public  clamor  is  hostile  to  the  even  course  of  justice, 
we  know  him  to  be  a  man  ready  to  do  his  duty.  No  in- 
fluence is  strong  enough  to  swerve  him  from  the  obliga- 
tions of  his  oath  of  office.  Beneath  his  genial  and  kindly 
surface  there  lurks  something  of  the  Puritan  blood  that 
makes  for  law  and  order. 

These  are  some  of  the  leading  traits  that  are  manifested 
in  his  long  and  useful  public  career.  They  are  illustrated 
by  the  incidents  that  make  up  the  record  of  a  life  well 
spent  and  that  have  made  him  a  notable  figure  in  the 
Commonwealth.  In  the  years  that  have  passed  he  has  left 


304  SOME  RECOLLECTIONS 

the  impress  on  his  time  of  a  strong,  rugged  and  forceful 
personality.  He  stands  forth  in  his  generation  with  a 
positive  individuality  that  has  made  him  a  leader  among 
men.  We  cheerfully  accord  him  the  station  that  has 
come  to  him,  not  by  accident  or  good  fortune,  but  by  man- 
ful effort  amid  difficulties  that  would  have  daunted  a 
weaker  man.  Looking  back  on  his  career,  we  know  that 
the  past,  at  least,  is  secure,  and  in  that  past  we  see  the 
harbinger  of  what  the  future  will  be.  We  congratulate 
him  on  this  auspicious  day  and  bid  him  go  forward  to 
further  achievements  with  the  assurance  that  Essex 
County  is  proud  to  number  him  as  one  of  her  sons. 

But  after  all  is  said,  the  qualities  that  endear  a  man  to 
his  fellows  are  the  social  qualities.  We  may  admire 
another  for  his  abilities  and  respect  him  for  his  achieve- 
ments, but  we  cherish  him  for  those  traits  that  appeal  to 
our  yearnings  for  friendship  and  companionship.  Those 
qualities  that  make  a  man  a  good  neighbor,  a  genial  com- 
panion, a  cheerful  associate,  a  sympathetic  friend,  these 
are  the  things  that  endure,  and  without  them  any  dis- 
tinction, however  great,  any  station  however  exalted,  are 
barren  and  cold.  And  these  qualities  our  friend  possesses 
in  a  superlative  degree.  Genuinely  democratic  in  his 
nature,  simple  in  his  tastes,  charitable  in  his  judgments 
of  others,  loyal  to  his  friends,  cheery  and  kind,  human  in 
his  failings  as  well  as  in  his  virtues,  he  has  won  not  merely 
our  esteem  as  a  judge,  but  our  affection  as  a  man.  We 
rejoice  that,  on  the  whole,  fortune  has  dealt  with  him  so 
kindly,  and  we  wish  for  him 

"An  old  age,  serene  and  bright. 

And  lovely  as  a  Lapland  night". 
"And  that  which  should  accompany  old  age. 
As  honor,  love,  obedience  and  troops  of  friends". 


OF  A  LONG  LIFE.  305 


Peesident  N'iles:  Gentlemen,  after  all  that  has  been 
said  complimentary  to  our  distinguished  brother,  there 
seems  to  be  absolutely  nothing  left  for  me  to  add,  and  if 
you  will  permit  me  simply  to  express  my  concurrence  in 
all  that  has  been  said  I  will  leave  it  there  and  not  attempt 
longer  to  repress  the  impatience  that  I  know  every  one  of 
you  feels  to  hear  from  our  guest  of  honor.  I,  therefore, 
without  further  delay,  present  to  you  the  Hon.  Edgar  J. 
Sherman,  the  Senior  Justice  of  our  Superior  Court. 
(Great  applause;  the  entire  company  rose  and  joined  in 
singing  "For  He's  a  Jolly  Good  Fellow".) 

Remarks  of  Judge  Sheemajst. 

Mr.  President,  guests  of  this  occasion,  and  brethren  of 
the  Essex  Bar: 

A  countryman  was  indicted  for  an  offense.  The  trial 
proceeded.  He  did  not  take  any  part  in  it,  by  cross- 
examining  the  witnesses,  or  arguing  the  case,  nor  was  he 
asked  to.  The  district  attorney  argued,  the  judge  charged 
the  jury  and  the  defendant  was  convicted.  The  clerk 
then  asked  him  if  he  had  anything  to  say  about  his  sen- 
tence. He  arose  and  said,  "If  I  had  been  asked  earlier  in 
the  proceedings,  I  should  have  been  glad  to  have  said 
something;  but  after  hearing  those  lying  witnesses,  and 
hearing  that  man  who  claims  to  represent  the  people  (the 
district  attorney)  and  after  listening  to  that  old  bald- 
headed  cuss  in  the  box,  who  spoke  against  me,  the  subject 
in  hand  seems  to  be  disposed  of.  But  if  there  is  any  other 
subject  which  you  would  like  to  have  me  discuss,  I  shall 
be  willing  to  speak". 

I  seem  to  be  in  a  similar  position.  The  old  bald-headed 
fellow  in  the  box  fits  Chief  Justice  Aiken.    The  subject  in 


306  SOME  EECOLLECTIONS 

hand  seems  to  have  been  disposed  of  by  the  preceding 
speakers. 

Yes,  gentlemen,  I  have  been  at  the  bar  fifty  years!  I 
was  admitted  to  the  bar  before  Chief  Justice  Mellen  in 
the  old  Court  of  Common  Pleas,  March  17,  1858;  That 
was  more  than  a  year  before  the  Superior  Court  was  es- 
tablished. I  cannot  make  it  seem  so  long  as  the  record 
shows  it  to  be. 

When  I  arose  to  speak,  I  thought  I  had  something  to 
r;iy  in  my  head — not  on  paper — but  your  kind  reception 
has  quite  overcome  me. 

Perhaps  I  can  say  something  concerning  the  difference 
in  practice  and  in  trials  fifty  years  ago  and  now.  Before 
I  was  admitted  to  the  bar,  I  attended  a  session  of  the 
Supreme  Judicial  Court  at  Salem.  An  aged  judge  was 
presiding,  and  Benjamin  P.  Butler  and  Otis  P.  Lord 
were  much  in  evidence.  Mr.  Lord  had  made  a  motion  to 
require  the  client  of  Mr.  Butler  to  furnish  an  indorser 
on  the  writ.  Such  a  motion  as  that  would  ordinarily  be 
disposed  of  now  in  twenty  minutes.  The  hearing  lasted 
all  the  forenoon,  and  the  biographies  of  Mr.  Lord  and  Mr. 
Butler  were  carefully  discussed  and  considered  in  an  un- 
favorable light.  It  was  a  personal  quarrel  between  those 
two  gentlemen;  each  saying  all  the  unfavorable  things  he 
could  of  the  other. 

The  practice  in  the  Courts  then  was  very  different 
from  what  it  is  now,  in  Essex,  Middlesex  and  Suffolk. 
If  a  witness  in  court  came  out  with  any  character  left, 
he  considered  himself  fortunate.  Witnesses  were  abused 
and  brow-beaten,  counsel  were  quarrelling  with  each 
other,  and  occasionally  were  in  an  altercation  with  the 
judge.  I  wonder  that  justice  could  be  administered  under 
such  circumstances. 

But,  gentlemen,  that  practice  has  all  passed  away.  "We 


OF  A  LONG  LIFE.  307 


have  no  such  scenes  in  court  today.  The  bar  is  to  be 
congratulated  on  this  change,  because  they  have  had  very 
much  to  do  in  bringing  it  about.  Such  men  as  Robert  M. 
Morse,  Lewis  S.  Dabney,  Ex-Governor  Long,  Samuel  J. 
Elder  and  the  gentlemen  I  see  before  me  have  been  in- 
fluential in  this  particular.  In  fact,  those  attorneys  con- 
duct themselves  toward  parties,  witnesses,  each  other,  and 
toward  the  Court,  in  about  the  same  way  as  they  would 
toward  visitors  in  their  own  parlors.  In  this  way  we 
believe  that  justice  is  much  better  administered  now  than 
formerly. 

The  gentlemen  who  have  spoken  have  told  you  what  I 
have  been  doing  since  I  was  admitted  to  the  bar.  Yes, 
gentlemen,  it  is  true,  I  have  been  in  public  office  for  forty 
years.  General  Grant  and  I  were  elected  to  office  on  the 
same  ticket,  in  1868,  he  to  the  office  of  President  of  the 
United  States,  and  I  to  the  office  of  district  attorney  in 
Essex,  and  I  have  been  in  office  since.  I  am  not  like 
the  boy  whose  mother  had  occasion  to  chide  him.  She 
said,  "Johnnie,  when  you  went  into  the  pantry  there  were 
three  doughtnuts  there ;  now  there  are  only  two".  "Well", 
said  Johnnie,  "I  guess  I  overlooked  the  other  two  in  the 
dark".  I  do  not  seem  to  have  overlooked  anything  in  the 
dark.  (Laughter.) 

When  I  was  offered  a  place  upon  the  bench  of  the  Su- 
perior Court,  I  had  some  doubt  whether  I  was  qualified 
for  it.  I  had  a  very  intimate  friend,  the  late  Elbridge 
T.  Burley,  well  known  to  you  gentlemen  as  a  very  able 
lawyer,  a  frank,  plain,  blunt  and  truthful  man.  I  did  not 
feel  like  asking  him  what  he  thought  about  my  qualifica- 
tions. But  a  lavr^er  did.  He  said  to  Mr.  Burley,  "It 
seems  that  Sherman  is  going  to  be  a  judge.  What  do  you 
think  of  it"  ?  "Well",  replied  the  squire,  "Sherman  has 
had  a  large  experience,  has  tried  a  great  many  cases,  has 


308  SOME  RECOLLECTIONS 


good  sense,  and  when  lie  does  not  know  what  the  law  is, 
he  Imows  what  it  ought  to  be,  and  I  think  he  will  make 
about  the  average  judge  of  the  Superior  Court".  I  have 
been  trying  since  my  appointment  to  be  the  average  judge 
of  that  court  and  I  have  succeeded,  if  you  take  the  opin- 
ions of  the  Supreme  Court  on  that  subject.   (Laughter.) 

I  am  a  good  deal  embarrassed  in  speaking  here  tonight, 
in  the  presence  of  our  Supreme  Judicial  Court,  because 
that  court  has  lately  offered  some  criticisms  on  my 
speeches.  (Laughter.)  In  one  case,  where  I  tried  to  make 
the  parties  settle — and  talked  about  it — ^Mr.  Justice  Lor- 
ing,  who  wrote  the  opinion,  says  that  I  talked  too  much 
on  that  subject.  (Laughter.)  In  another  case,  the  Court 
says  that  I  did  not  talk  enough.  So  you  see  I  am  in  an 
embarrassing  position  here. 

But  I  would  like  to  say  one  thing  in  behalf  of  our 
court,  as  distinguished  from  the  Supreme  Judicial  Court. 
We  have  to  decide  our  questions  on  the  instant;  we  have 
to  shoot  our  game  on  the  wing  (applause)  ;  and  the  Su- 
preme Court  have  an  opportunity  to  put  their  guns  at 
rest,  to  take  plenty  of  time,  and  have  able  lawyers  to 
show  them  how  to  shoot.  And  I  can  show  you  a  case 
where  four  of  the  justices  decided  that  they  finally  hit 
the  game,  while  the  other  three  insist  that  the  four  jus- 
tices came  nowhere  near  the  game.  (Applause.)  So 
you  must  be  charitable  to  our  judges,  who  have  to  shoot 
their  game  on  the  wing. 

!N"ow,  gentlemen,  joking  aside,  I  want  to  say  some- 
thing about  our  Supreme  Court.  You  hear  some  lawyers 
— not  in  Essex,  I  am  glad  to  say,  but  some  opinionated 
lawyers  in  Suffolk — say,  "Oh,  the  Supreme  Court  is  not 
what  it  used  to  be;  all  the  great  judges  on  both  courts 
are  dead."  ITow,  gentlemen,  I  have  no  sympathy  with 
that  sentiment.     I  have  known  that  court  for  over  fifty 


OF  A  LONG  LIFE.  309 


years — and  you  have  given  me  credit  for  good  sense.  In 
my  opinion  we  never  had  a  better  court  than  that  court 
is  today.  (Applause.)  They  are  all  able,  faithful,  con- 
scientious justices,  from  the  Chief  Justice  to  the  last 
appointment.  That  court  has  much  more  to  do  than  it 
formerly  had.     It  is  a  hard-working  court. 

We  of  the  Superior  Court  believe  that  appointments  to 
the  Supreme  Court  should  come  from  our  court,  by  way 
of  promotion,  unless  a  better  lawyer  can  be  found  outside. 
Of  course,  we  have  three  notable  cases  coming  within  the 
rule  I  have  stated.  Take  the  case  of  Mr.  Justice  Morton. 
He  has  the  Morton  ability  and  common  sense — a  cousin 
of  Marcus,  senior,  and  Marcus,  junior — and  he  comes 
clearly  within  the  rule.  And  Mr.  Justice  Loring,  we  all 
know  to  be  a  man  of  great  learning  and  ability,  and  he  has 
fully  justified  his  appointment  as  within  the  rule.  And 
if  Mr.  Justice  Rugg  keeps  on  writing  such  opinions  as 
he  has  already  given  us,  there  will  be  no  doubt  about  the 
propriety  of  his  appointment. 

I  know  but  very  little  about  the  administration  of  jus- 
tice in  the  United  States  courts;  but  ex-District  Attorney 
Boyd  B.  Jones  assures  me  that  the  judges  are  first-class, 
and  Boyd  knows. 

I  would  like  to  say  a  word  about  our  court.  When  I 
was  appointed,  our  court  consisted  of  twelve  judges,  and 
now  we  have  twenty-five.  The  late  Judge  Berry  said  that 
we  ought  to  be  numbered  and  uniformed  in  order  to  keep 
track  of  us.  In  my  opinion,  our  court  was  never  in  better 
condition  than  it  is  today,  for  the  work  it  has  in  hand  as 
the  great  trial  court  of  the  Commonwealth. 

A  word  concerning  our  Chief  Justice  Aiken.  When  he 
was  offered  the  position  of  Chief  Justice  by  Governor 
Douglas,  he  was  unwilling  to  accept  it.  He  is  really  a 
very  modest  man.     It  took  much  argument  from  judges 


310  SOME  EECOLI.ECTIONS 


and  lawyers  to  induce  him  to  accept  the  appointment. 
We  have  always  been  most  fortunate  in  our  Chief  Justices, 
but  we  never  have  had  a  man  better  beloved  and  more 
justly  popular  with  bench,  bar  and  the  public,  than  Chief 
Justice  Aiken.     (Applause.) 

I  would  like  to  advise  the  young  lawyers  who  may  be 
thought  of  for  judicial  positions.  Do  not  aspire  to  go 
directly  upon  the  Supreme  bench,  but  come  first  to  the 
Superior  Court.  Those  gentlemen  see  but  few  people, 
and  I  should  think  they  would  become  lonesome;  while 
we  are  engaged  in  great  public  trials,  seeing  witnesses, 
jurors,  lawyers,  etc.  That  court  has  but  little  fun  and 
enjoyment,  while  we  have  considerable. 

Let  me  give  you  a  look  into  our  lobby  and  have  you  see 
how  serious  and  sedate  judges  act.  When  Judge  Dunbar 
was  on  the  bench,  he  came  into  the  lobby  one  day  and 
addressing  me,  said:  "I  saw  the  foreman  of  your  jury, 
and  he  says  that  you  make  matters  very  plain  and  clear 
in  your  charges."  I  knew  better  than  to  ask  any  ques- 
tions, but  some  other  judge  did.  So  Judge  Dunbar  went 
on,  "He  says  that  in  charging  a  jury  in  a  case  of  trespass, 
the  judge  gave  this  illustration:  'If  a  man  comes  on  to 
the  lawn  in  front  of  your  house,  and  he  is  objectionable, 
you  have  a  right  to  order  him  off,  and  if  he  does  not  go, 
you  have  a  right  to  use  sufficient  force  to  put  him  off; 
but  you  have  no  right  to  kick  his  back-sides  across  the 
street'  ".  The  judges  laughed.  Thereupon  Judge  Ham- 
mond, who  was  sitting  with  his  feet  upon  the  table,  said: 
"I  do  not  believe  that  Sherman  said  that".  I  did  not  ask 
why;  I  knew  better  than  that;  but  some  other  judge  did 
ask  why,  and  Hammond  replied,  "Because  that  is  good 
law".  (Applause.)  Young  man,  go  on  to  our  court,  enjoy 
life  and  be  happy. 

Gentlemen  of  the  Essex  Bar,  I  fully  appreciate  your 


OF  A  LONG  LIFE.  311 


kindness  in  tendering  me  this  banquet.  I  was  elected 
district  attorney  by  your  influence,  and  partially,  I  was 
also  elected  attorney  general  by  your  efforts  and  influence. 
What  happened  then  I  think  never  happened  before,  and 
probably  never  will  again.  I  received  the  vote  of  every 
delegate  from  the  county,  save  one,  at  the  Worcester  con- 
vention, which  enabled  me  to  beat  a  better  man — the  late 
Judge  Barker — and  secure  the  nomination  for  the  office 
of  attorney  general. 

After  so  many  kindnesses,  you  observed  that  I  had 
passed  the  biblical  line  of  life,  more  than  "three  score 
and  ten  years,"  that  most  men  near  that  time  in  life  go 
down  in  sorrow  to  the  grave.  You  probably  have  read 
the  lives  of  the  Chief  Justices  of  England.  You  see  the 
old  men,  as  they  give  up  a  long  life,  become  despondent 
and  gloomy,  and  perhaps  hear  them  say,  "Life  is  not 
worth  the  living" ;  that  "It  is  all  a  fleeting  show  for  a 
man's  delusion  given".  But,  gentlemen,  I  assure  you 
that  I  have  none  of  that  feeling.  I  have  a  happy, 
philosophical  and  contented  disposition.  I  have  enjoyed 
life  to  the  full.  Life  is  worth  living,  whether  it  ends  in 
a  great  sleep  and  rest,  or  whether  it  goes  on.  I  have  no 
anxiety  for  the  future.  When  the  time  comes  for  me  to 
pass  over  to  the  great  majority,  if  I  am  then  in  the 
possession  of  my  mental  faculties,  I  shall  go  with  all  the 
flags  flying.     (Great  applause.) 

I  am  very  much  obliged  to  you,  Mr.  President,  to  the 
members  of  the  bar,  to  the  judges  of  the  United  States 
courts,  the  judges  of  our  Supreme  Court,  and  to  my  as- 
sociates; to  one  and  all  who  have  come  here  to  extend 
greeting  and  congratulations.  I  thank  you  all  from  the 
bottom  of  my  heart.  I  bid  you  all  an  affectionate  good 
night. 


312  SOME  EECOLLECTIONS 


Letter  of  Hox.  Daniel  Saundees. 

Partner  of  Judge  Sherman  from  1858  to  186^.  Mr. 
Saunders  is  the  Senior  Member  of  the  Essex  Bar,  now 
eighty-six  years  old. 

Lawrence,  March  26th,  1908. 
William  H.  Kiles,  Esq. 

President  of  the  Essex  Bar  Association. 
My  Dear  Brother  Niles: — 

I  want  to  thank  you  for  the  admirable  arrangements 
you  made  for  the  Bar  dinner  given  in  honor  of  my  old 
partner,  Judge  Sherman.  As  a  lover  of  justice,  I  am 
happy  to  say  that  he  got  his  just  deserts  when  he  was 
sentenced  for  life  to  sit  on  the  Superior  Court  Bench, 
with  the  only  hope  that  his  sentence  might  be  commuted 
by  being  sent  to  the  less  punitive  institution,  the  Supreme 

Court. 

The  Essex  Bar  very  soon  found,  after  he  came  to  it, 

that  he  had  a  way  of  taking  things,  a  knack  of  getting 

verdicts  which  some  of  us  thought  did  not  belong  to  him ; 

not  content  with  getting  his  brothers'  verdicts  away  from 

them,   he  took  the  District  Attorneyship,   and   then   he 

grabbed   the   Attorney   Generalship    and   a   lot   of   other 

things,  leaving  of  what  he  wanted,  only  those  things  which 

he  had  overlooked.    So  it  went  on  until  it  became  evident 

that  if  he  were  allowed  to  go  at  large  there  would  be 

nothing  left  for  the  rest  of  us;  so,  holding  a  council  we 

advised  the  Governor,  for  the  good  of  the  community  and 

for  the  safety  of  the  Bar,  fhat  he  should  be  confined  at 

hard  labor,  for  the  rest  of  his  life  on  the  Superior  Court 

Bench.     This  was  done  and  he  was  committed;  I  under- 


OF  A  LONG  LIFE.  313 


stand  that  lie  has  proved  a  model  prisoner,  and  by  his 
good  conduct  (although  some  complain  that  he  had  not 
forgotten  how  to  get  verdicts)  he  is  entitled  to  favorable 
consideration,  and  there  would  be  no  protest  if  the  Execu- 
tive should  extend  clemency  in  his  case,  and  allow  him 
to  serve  out  the  remainder  of  his  sentence  on  the  Supreme 
Judicial  Bench.  But,  seriously,  I  can  say  that  the  honors 
which  have  come  to  him  have  been  well  earned  and  well 
bestowed.  As  a  lawyer  (and  I  knew  him  well,  and  speak 
from  knowledge),  he  was  diligent  in  the  preparation  of 
his  cases,  able  in  their  presentation,  strong  and  eloquent 
in  argument  and  successful  in  procuring  verdicts  for  his 
clients.  Always  courteous  to  his  brother  lawyers  and  most 
respectful  to  the  Courts.  His  word  was  his  bond,  which 
never  went  to  protest.  As  a  prosecuting  officer  his  motto 
was  "let  no  guilty  man  escape",  and  he  lived  up  to  it.  As 
a  judge  he  has  proved  the  wisdom  of  his  selection  to  that 
high  office.  It  only  remains  to  be  said  that  the  record  of 
his  life  is  a  higher  eulogy  than  any  of  the  just  compli- 
ments that  were  so  well  paid  to  him  at  the  meeting  of  our 
Association  on  the  occasion  of  the  fiftieth  anniversary  of 
Ms  legal  life,  so  well  spent  in  the  service  of  our  good  old 
Commonwealth. 

There  is  one  phase  of  his  life  of  which  I  cannot  speak 
as  well  as  others,  his  brothers  in  arms.  When  the  glow  of 
patriotism  spread  from  mountain  top  to  mountain  top 
and  illuminated  every  valley,  he  caught  and  felt  that  glow 
and  enlisted  as  a  soldier  in  the  service  of  his  country.  It 
appears  from  the  records  of  his  regiment  that  he  was  soon 
promoted  to  a  captaincy,  and  in  the  assault  on  Port  Hud- 
son, June  14th,  1863,  he  was  brevetted  Major  for  "gallant 
and  meritorious  services" ;  just  such  conduct  as  his  friends 
expected  of  him.  And  here  it  may  be  proper  to  add, 
without  in  the  least  detracting  from  the  gallant  services 


314  SOME  RECOLLECTIONS 

of  his  brother  officers,  that  he  Avas  the  only  man  in  his 
regiment  who  was  brevetted  for  "gallant  and  meritorious 
services". 

Our  bar  is  justly  proud  if  not  a  little  envious  of  him. 

Trusting  that  our  Association  may  long  have  the  bene- 
fit and  honor  of  your  presence  as  its  presiding  officer,  I 
am, 

Most  Sincerely  Yours, 

Daniel  Saundees. 

Letter  of  Harvey  ]^.  Shepard. 

Boston,  March  lY,  1908. 

William    Henry    ISTiles,    Esq.,    President    Essex    Bar 
Association. 

Brother  Niles: — 

Unfortunately  my  throat  is  inflamed  from  a  severe 
cold  and  my  physician  has  forbidden  me  to  be  out  even- 
ings; but  nevertheless  I  am  going  to  make  the  venture 
to  be  there  for  a  short  time  in  order  to  pay  to  Judge 
Sherman  my  tribute  of  most  sincere  affection  and  esteem. 

I  came  first  to  know  him  upon  an  occasion  which  prob- 
ably he  does  not  now  recall  but  which  then  made  a  strong 
impression  upon  me.  I  had  just  come  to  the  bar,  and  was 
sent  from  the  office  where  I  was  a  student,  to  testifv  as 
to  some  matters  which  had  arisen  in  the  office,  before  the 
Grand  Jury.  I  never  had  been  in  courts  or  before  any 
judicial  tribunal,  and  naturally  was  nervous  at  the  pros- 
pect. I  cannot  forget  the  courtesy  and  kindness  with 
which  I  was  received  by  Judge  Sherman,  then  the  District 
Attorney,  which  at  once  placed  me  at  ease.     Later,  I  had 


OF  A  LONG  LIFE.  315 


the  honor  to  serve  with  him  for  five  years  as  his  First 
Assistant  Attorney  General,  and  this  association  deepened 
and  strengthened  my  feelings. 

His  administration  marks  the  beginning  of  the  change 
which  has  continued  on  the  same  lines  in  this  great  office. 
Before  then  the  Attorney  General  treated  the  Common- 
wealth as  any  other  client,  and  attended  to  its  affairs  as 
he  did  to  the  affiairs  of  other  clients,  in  his  own  office, 
wherever  that  might  be.  In  his  administration  a  removal 
was  made  to  a  state  building,  and  since  that  time  the 
Commonwealth  has  had  first  place.  Naturally,  with  no 
fixed  office,  the  records  were  deficient,  and  then  began  the 
custom  of  keeping  records  of  all  opinions,  a  custom  which 
has  been  followed  ever  since.  Before  then  the  duties  of 
the  Attorney  General  were  defined  with  considerable 
laxity.  Custom,  rather  than  law,  had  established  relations 
which  led  him  to  appear  before  the  Committee  on  Claims, 
for  instance,  as  a  paid  attorney  would,  to  resist  every 
claim,  however  just  he  might  believe  it  to  be,  examine 
witnesses,  and  make  an  argument  against  its  allowance. 
This  was  changed,  so  that,  instead  of  taking  part  in  the 
investigation  of  facts,  he  attended  to  the  higher  and  more 
proper  duty  of  his  position  in  giving  advice  solely  upon 
the  law.  Also  it  had  grown  to  be  the  habit  in  town  of- 
fices, and  in  all  parts  of  the  state,  to  put  verbal  inquiries 
to  the  Attorney  General  and  receive  verbal  advice  as  to 
matters  arising  in  their  town  affairs.  This  loose  practice 
frequently  resulted  in  misunderstandings,  and  of  course 
was  without  warrant  in  law.  All  this  was  changed,  so 
that,  from  then  on,  it  has  been  distinctly  understood  to 
whom  his  opinions  are  due.  Of  course,  being  without  the 
sanction  of  law,  his  opinion,  given  under  such  circum- 
stances, had  no  binding  force,  and  was  of  no  legal  value. 

Also  it  has  been  the  custom  for  thie  Attorney  General 


316  SOME  EECOLLECTIONS 


to  argiie  all  exceptions  in  criminal  cases,  a  custom  which 
every  lawyer  perceives  at  once  was  a  disadvantage,  as  no 
man  can  understand  so  well  the  meaning  and  intent  of 
an  exception  as  the  lawyer  who  took  it  when  the  case  was 
on  trial.  The  process  to  obtain  the  surrender  of  fugitives 
from  justice  was  examined  with  great  care,  changes  were 
made,  and  rules  then  defined,  which  ever  since  have  been 
followed. 

The  civil  business  of  the  office  grew  each  year  in  im- 
portance, and  some  of  the  cases  were  of  great  value  in  de- 
termining the  legal  rights  of  the  Commonwealth  in  most 
important  respects.  Such,  for  instance,  as  those  relating 
to  the  South  Boston  Flats,  the  Hotel  Kensing-ton,  and 
the  Western  Union  Telegraph  Company.  One  important 
item  of  civil  business  at  that  time,  which  no  longer  is 
found  there,  arose  from  the  ownership  and  control  by  the 
Commonwealth  of  the  Hoosac  Tunnel.  The  Attorney 
General  was  the  legal  adviser  of  the  Manager  of  the  tun- 
nel ;  and,  once  a  year,  at  least,  he  was  obliged  to  consider 
all  the  accounts,  and  from  time  to  time  he  had  to  pass  up- 
on the  many  perplexing  questions  which  spring  up  in  the 
management  of  a  railroad. 

What  specially  impressed  me  during  my  association 
with  Judge  Sherman  was  not  only  his  gTeat  tact  in  dealing 
with  all  the  many  and  various  calls  upon  him,  but  also 
the  wonderful  facility  by  which,  as  though  by  intuition, 
he  came  to  a  conclusion  what  the  law  must  be;  and  I  do 
not  remember  an  instance  when  upon  thorough  examina- 
tion afterwards  he  was  found  to  be  wrong.  These  remark- 
able qualities,  it  is  needless  to  say,  have  characterized  him 
as  a  judge  of  the  great  trial  court  of  the  Commonwealth ; 
while  his  kindness  of  manner  and  unfailing  courtesy  have 
endeared  him  to  all  who  have  been  so  fortunate  as  to  come 
into  contact  with  him. 


OF  A  LONG  LIFE.  317 


To  me  it  is  one  of  the  dearest  recollections  of  my  life 
that  for  five  years  I  was  associated  with  him  so  intimate- 
ly, and  came  to  know  him  so  well;  and  the  affection 
which  I  then  formed  has  grown  stronger  every  year.  May 
he  long  be  spared  to  us  as  an  inspiring  example  of  that 
kind  of  public  service  which  every  earnest  and  sincere 
lawyer  ought  at  all  times  to  be  willing  to  give. 

Yours  fraternally, 

Haevey  it.  Shepard. 


Letter  of  Samuel  J.  Eldee. 

Pemberton  Building,  Boston,  Mass,  March  19,  1908. 

Hon.  Edgae  J.  Sheeman^  Superior  Court,  Boston. 
Dear  Judge  Sherman: — 

Pray  let  me  thank  you  again  for  your  courteous  re- 
membrance of  me  and  for  the  ticket  to  the  banquet  last 
Tuesday  of  the  Essex  County  Bar  in  honor  of  the  Fiftieth 
Anniversary  of  your  admission  to  practice. 

It  is  entirely  impossible  for  me  to  express  the  pleasure 
and  gratification  which  the  occasion  gave  me.  All  the 
way  through  I  was  bearing  in  mind  the  distinguished 
assembly  which  gathered  in  the  Old  Boston  Museum  to 
greet  William  Warren  on  the  Fiftieth  Anniversary  of  his 
first  appearance  upon  the  stage  and  of  the  superb  enthu- 
siasm which  pervaded  the  audience.  Mr.  Warren,  called 
before  the  curtain,  made  a  charming  little  speech,  in  the 
course  of  which  he  said : 

"Although  I  have  not  scaled  the  heights  of  Parnassus, 
I  am  profoundly  grateful  to  have  found  so  cozy  a  nook  on 
the  mountain  side." 


318  SOME  EECOLLECTIONS 

But  Mr.  Warren  was  mistaken.  He  had  scaled  the  heights 
of  Parnassus.  He  had  done  far  better  than  to  have  been 
an  itinerant  star  travelling  through  the  States  behind 
great  posters  and  announcements.  He  had  touched  the 
hearts  of  a  great  community;  he  had  portrayed  life  as  it 
was  in  every  phase,  from  the  humblest  to  the  highest,  and 
he  had  left  an  enduring  impression  of  faithfulness  to 
truth  in  his  art. 

You  were  equally  deprecatory  of  your  achievement  in 
your  charming  reply  at  the  close  of  the  banquet.  You 
will  pardon  me,  because  I  am  not  saying  it  to  your  face, 
for  saying  that  you  have  touched  the  hearts  of  every  one 
with  whom  you  have  come  in  contact.  You  have  known 
the  lives  and  struggles  and  sorrows  of  all  the  people  in 
the  State,  and  you  have  held  with  strong  hand,  the 
balances,  and  with  a  merciful  hand  have  tempered  judg- 
ment. 

You  might  very  well  say  as  Kipling  did  to  his  kinsfolk 
in  India  on  leaving: 

"I  have  tasted  your  bread  and  salt, 
I  have  drunk  your  water  and  wine, 

The  deaths  ye  have  died  I  have  watched  beside, 
And  the  lives  ye  have  lived  were  mine". 

As  an  old  Lawrence  boy  whose  first  glimpse  of  the  in- 
side of  a  law  office  was  of  your  office,  and  as  one  whose 
earliest  thoughts  of  the  law  were  kindled  by  glimpses  of 
you  and  your  work,  I  add  my  leaf  to  the  laurel  that  was 
woven  for  you  by  your  troops  of  friends. 

Faithfully  yours, 

Sam  J.  Ei.DEB. 


OF  A  LONG  LIFE.  319 


Letter  of  Geo.  Feed.  Williams. 

Dedham,  March  17,  1908. 
My  Dear  Judge  Sherman: 

Having  been  in  ]^ew  York  for  several  days,  I  am  to-day 
simply  disgusted  that  I  did  not  know  of  the  dinner  to  be 
given  you  by  the  Essex  Bar.  I  arrived  home  yesterday, 
and,  unhappily,  my  partner,  Mr.  Halloran,  did  not  speak 
to  me  about  it,  because  he  supjiosed  it  was  confined  to  the 
Essex  Bar.  After  I  left  he  found  that  he  could  get  a 
place  at  the  table,  and  attended  the  dinner.  I  cannot 
tell  you  how  badly  I  felt  about  it,  as  there  is  no  one  on  the 
bench  in  Massachusetts  whom  I  hold  in  affection  as  I 
hold  you.  So  I  must  give  you  my  congratulations  be- 
lated. JSTo  statement  of  your  age  is  made  in  the  press, 
and  I  am  puzzled  to  understand  how  a  child  in  arms 
could  be  admitted  to  the  bar.  Even  now,  however,  it 
figures  out,  you  are  the  youngest  man  on  the  Superior 
Bench.  Many  years  of  useful  and  vigorous  life  to  you, 
is  the  wish  of 

Yours  most  sincerely, 

Geo.  Feed.  Williams. 


Letter  of  Sherman  L.  Whipple. 

Boston,  March  17,  1908. 

Hon.  Edgar  J.  Sherman^,  American  House,  Boston. 

My  Dear  Judge  Sherman: 

I  send  you  my  greetings  and  congratulations  on  reach- 
ing the  half  century  mark  of  your  career  as  a  lawyer.  I 


320  SOME  KECOLLECTIONS 


should  have  been  glad  to  have  been  able  to  present  them 
in  person.  I  join  with  your  many  friends  in  hoping  you 
may  be  spared  for  many  years  of  usefulness  in  public 
service  of  the  Commonwealth  and  happiness  to  yourself. 

Sincerely  yours, 

Sherman  L.  Whipple. 


Letter  of  Charles  U.  Bell, 

of  the  Superior  Court,  who  was  a  partner  of  Judge  Sher- 
man, under  the  style  of  "Sherman  and  Bell",  for  ten 
years  prior  to  the  time  Judge  Sherman  went  on  to  the 
Bench. 

My  Dear  Judge: 

I  do  not  want  to  omit  to  congratulate  you  on  the  com- 
pletion of  your  fifty  years  service  at  the  bar  and  on  the 
tench.  Every  one  agrees  that  it  has  been  a  very  successful 
service  and  we  all  hope  that  it  will  continue  many  years 
more.  It  recalls  to  me  your  uniform  kindness  to  me 
since  we  first  did  business  together,  thirty  years  ago, 
which  I  always  hold  in  grateful  remembrance. 

Both  you  and  Mrs.  Sherman  have  my  best  wishes  for 
long  life  and  happiness. 

Tours  sincerely, 

Chaeles  U.  Bell. 


APPENDIX. 


EEGISTER  OF  MY  CHILDREN  AND 
GRANDCHILDREN. 


1.  Frederick  Francis  Sherman,  son,  born  September  lY, 

1859.  Died  April  21,  1902.  Married  Jessie  Sophia 
Goudge,  June  10,  1884.  Grant  Simmons  Sherman, 
grandson,  bom  July  11,  1886.  Elizabeth  Sherman, 
granddaughter,  born  May  17,  1897. 

2.  Fannie  May  Sherman,  daughter,  born  September  13, 

1861.  Married  Henry  Person  Newcomb  of  Denver, 
Colorado,  August  25,  1902. 

3.  Elizabeth    Sherman,    daughter,   born    September   22, 

1865.  Married  Henry  Souther,  September  11, 
1888.  Now  of  Hartford,  Connecticut.  Catherine 
Souther,  granddaughter,  born  June  30,  1889.  Mary 
Souther,  granddaughter,  born  April  28,  1897. 

4.  Malvina    Sherman,    daughter,   born   May   16,    1869. 

Married  Frank  Delbert  Carney,  November  1,  1892. 
Now  of  Steelton,  Penn.  Louise  Carney,  grand- 
daughter, born  July  15,  1896. 


322  SOME  EEOOLLEOTIONS 

5.  Roland   Henry    Sherman,    son,   born   November    30, 

1873.  Now  of  Winchester,  Massachusetts.  Married 
Alma  C.  Hearle,  April  5,  1898.  Julia  P.  Sherman, 
granddaughter,  born  January  3,  1900.  Edgar  Jay 
Sherman,  2d,  grandson,  born  August  24,  1902. 
Roger  Sherman,  grandson,  bom  December  15,  1904. 

6.  Abbie  Maude  Sherman,  daughter,  born  September  5, 

18Y5.  Married  Fritz  Henry  Eaton,  now  of  Law- 
rence, Massachusetts,  August  24,  1897.  James  Hen- 
ry Eaton,  grandson,  born  ISTovember  29,  1898. 
Alma  Sherman  Eaton,  granddaughter,  bom  October 
29,  1903.  Elizabeth  Frances  Eaton,  granddaughter, 
born  December  1,  1907.