Chapter 21: practice of the law.
- Early enamored with the rules of pleading -- collision with an elderly Judge, who prefers to “err with the ancients” -- one cannot steal a key from a door -- tries the first bankruptcy cases -- what a lawyer must do to succeed -- loses more cases as years progress -- the reason: called in after the patient is dead and buried, and the Sexton gone home to supper -- Defeating the annexation of Charlestown to Boston -- Anecdotes of chief justice Shaw -- the great Northwestern conspiracy -- Farragut's prize money -- interesting criminal and civil cases -- lawyers must be ready to confute experts -- defending a murderer: a worse than Thankless task -- hanged in effigy in Malden -- the truth about that Millwheel story
The beginning of Chapter II. of this book having brought the events of my life down to my preparation for my profession and my admission to the bar, I thought it best to postpone a narration of the events of my professional career until I had set forth in due order the circumstances and opinions which brought me into the war and politics and until I had given the history of what I did or omitted to do in those great contests. Since that has been done, imperfectly as it may be, I propose to deal in the following pages, so far as the limits of my undertaking may allow, with the history of my pursuit of my profession. One event which controlled me in this regard was that declining years made it uncertain how long my health and strength would permit me to undergo the great labor of studying and writing a history of the war so far as it concerned myself. Therefore I was induced to do that first, so as to be sure that the narrative of all I had done in the war should be set forth by my own hand,--for nobody could make it complete but myself; and it was due to my own reputation and my children and friends that that should be done at all hazards, if life lasted so long. With this thought I had made provision with my publishers that if health and strength failed me, the rest of my history might be written by an editor who could present that part of my life-work better than I could do it myself, and we had agreed that that editor should be my friend, Mr. James Parton, the historian, who promised, if called upon, to undertake the work. But it has so happened that while writing this book I have been obliged to bow my head with sorrowing anguish beside his coffin.
I began the practice of the law September 3, 1840, being between twenty-one and twenty-two years of age, illy prepared, I admit. I [986] was not obliged, before entering the courts, to pass through the novitiate that delays most young men. My teacher, Win. Smith, Esq., had some cases in court which he placed in my charge, he never afterwards himself trying a case in court, to my knowledge, and this brought me early before courts and juries.
During my studies I became enamored with the rules of pleading, and especially with the rules of criminal pleading which seemed to me almost an exact science, requiring accuracy of statement, clearness and earnestness of thought, and exactness in logic, for if the pleader tripped in any one part he failed in all. The statement of civil cases, which at one time was as exact, had so been relaxed by the statutes of jeofails and amendment, that if a lawyer failed to state his case correctly he has an opportunity of trying again by amendment. This was very convenient, but it tended to raise up a class of very poor lawyers, who instead of carefully studying their cases at first, and thinking them out so as to put them in order with exactness, slovenly trusted to regain their lost ground by amending their statements. As the rules of pleading in regard to many petty offences were quite as strict as in higher and more important cases, my attention was turned to the defence of criminals. Not so with civil cases, for of those of importance the young lawyer gets very few.
I tried my cases critically, catching at every point in the faults of my opponents, and of course was immediately called “sharp” by the attorneys conducting criminal causes, who frequently begged of me to overlook their blunders which might enable me to save my clients. But upon these matters I was inexorable; I held that a good point of law in his favor was as much the property of my client as was a good point of fact, and that I had no more right to waive one than to give up the other.
I was quite successful in my defences of criminals, and very early, while it was expected of me that I should speak to the court only with bated “breath and whispering humbleness,” I ran against an elderly judge, quite a good lawyer, who believed that young men should take back seats and keep them. I may be permitted to give the incident:--
Peter Moore was indicted for adultery with one Mary Stuart, she being then a married woman, and having a husband alive. Now adultery in Massachusetts was punishable by confinement of three [987] years in the State Prison, whereas the laws of some States leave that crime as if it were almost an accomplishment.
When Moore was called to plead guilty or not guilty, I took the objection that no offence was stated against him because it was not alleged in the indictment that Mary Stuart was not Moore's wife. The prosecuting attorney, a lawyer advanced in years, stated that that form of indictment was taken from Davis' Precedents, Davis having a great many years before been solicitor-general of the State, and that a great many persons had been convicted upon such an indictment, and the objection had never been taken before. To that I replied that this was a question of pleading, and however long the fault existed it was clear that it did not aver the offence. The court having heard the argument stated that the point was a “sharp” one, and although he might be wrong in his ruling, yet he preferred to err with the ancients, rather than be right with the new notions which were being pressed upon the court. Somewhat to his surprise and disgust I remarked to him that I proposed to show that he had “erred with the ancients,” and to do so I should bring a writ of error to the Supreme Court. The case was taken to that court, and after argument the point was decided in my favor. When I got a copy of that decision of the court, I enclosed it to my friend, the presiding justice at the trial, saying that I hoped he would read the decision and have the pleasure of knowing that he had “erred with the ancients.” I afterwards tried many cases before him, but he never repeated that phrase to me.
Perhaps the reader will permit another illustration: Elijah Record, who was a burglar by trade, got short of false door-keys and went down to supply himself one morning through one of the principal streets of Lowell. Whenever he saw a key left in the door lock, and the owner of the shop not in sight, he would take it out of the lock and put it in his pocket, for a little filing would make of it a skeleton key which would open several locks. He had got one or more keys and then, coming to a shop, the door of which stood open, being unable to see anybody, he proceeded to take the key from the door and put it in his pocket. But the owner of the store was sitting directly behind the door reading a newspaper. He heard the noise made by turning the key, and saw the key taken out of the door. He sprang after Record, who, unfortunately for himself, [988] fell into the arms of a police officer within a few feet, and was arrested, having dropped the abstracted key on the sidewalk, which the owner picked up. It was marked, and Record was taken to the lock-up.
Now Record was known to the district attorney, as he had escaped him once or twice, and he was very glad to get a clear case against him. The city marshal, the prosecuting officer, was so assured of the prosecution of the case, that when he learned that I had been retained by Record's wife for his defence, he said to me:--
“Are you going to defend record?”
“Yes.”
“Well, if you get him off, I will throw up my commission.”
“Mr. Adams,” I said, “I did not expect so large fees for trying this case, but for it I will do my best.”
Record was indicted for stealing from a building, and we went to trial. The fact that he took a key out of a door lock and ran away with it was proven beyond all question. While I was cross-examining a witness,--the man that lost the key,--an elderly member of our bar and friendly to me, said:--
“Butler, why do you take such cases, when you know you are sure to be beaten?”
“It's a custom I have,” I said.
When the witness stepped down the district attorney said to the court: “The government rests its case here.”
I said: “Mr. Attorney, you don't intend to ask for a verdict of the jury in a case like this, do you?”
“I should like to know why not,” said he.
“Well,” I answered, “I will tell the court. Larceny is the taking of personal property furtively and devoting it to one's own use. Here it is proven that the prisoner took a key out of a door and ran away with it. Now, if your Honor please, when a key is in its proper place in the door it cannot be stolen, because then it is real estate. When a man dies, his personal estate goes to his executor, his real estate goes to his heirs. Here is the decision that keys in a house pass to the executor. The evidence is that the prisoner at the bar took the key out of its proper place in the door, and that is taking real estate, and taking real estate is not larceny. I move the court to direct a verdict of acquittal.” [989]
“ What answer have you to make to this, Mr. District Attorney?” said the judge.
He hadn't any, and my client was acquitted.
“Have you anything further against Record, Mr. District Attorney?” continued the judge. “If not, let him be discharged.”
“ Will your Honor please stop a moment,” said I. “I don't want Record discharged. I have not got all my fees yet.”
“ I thought,” the judge laughingly said, “that you were too well instructed a lawyer not to know that it is best to get your fees before you try such cases?”
“I usually do, your honor,” said I; “but in this case, I was promised by the city marshal who sits there that if I got Record clear he would throw up his commission. If he declines to do it, I move your Honor to enforce his promise.”
“Well,” said the judge laughing, “if I attend to that, I cannot at this time, Mr. Butler.”
“I hardly supposed you could,” I said, “and Record may go.”
The legislature at its next session passed an act which made severing portions of real estate for a felonious intent larceny,--so that now one may be indicted for stealing apples from trees, which before could not be done. I do not mean it should be understood that I won in all the sharp points I took; far from it, but I took them all the same and not infrequently won.
On the 19th of August, 1841, Congress passed an act establishing a system of bankruptcy. There had been no bankrupt law since that of 1800, and I saw that I should, by studying it, know as much about the new law as anybody, and more, if I examined the decisions under the old system and under the English bankrupt laws with more diligence than anybody else. I also reasoned that there would be a large number of private cases arising under that law. I therefore gave it most painstaking and exhaustive study, devoting to it all the time I had and what I could rob from sleep, in order to prepare myself in this branch of professional work. This was noised about in the profession, and I was applied to at once by some of my seniors at the bar, and I also had some cases of my own under that law. Thus it came about that in 1842 I tried the first two bankrupt cases to a jury. One was before Judge Story in the Circuit Court in the District of Massachusetts, and the other before Judge Harvey in the Circuit [990] Court of New Hampshire. I won them both, and I believe this was the first instance where a lawyer two years at the bar tried cases of such importance to a jury in the Circuit Court of the United States. I trust I may not appear boastful in making this narrative, because I had nothing to boast of save a devotion to my profession. I do not believe in genius carrying a man along in the practice of the law, and I want here to record for the benefit of the young men who come after me in the profession, that diligence, hard study, and careful thought are the only roads to success in any branch of the law except that possibly a turn for oratory may help the advocate. But the mere advocate, however brilliant, will lose the most cases although he may win the most verdicts.
A legal friend said to me: “I wish, Brother Butler, that in your book you would tell the profession those habits of life and conduct which led you to success as a lawyer.” I can do that in a few words:--
The closest application to the study of the law applicable to any case in hand, and careful thought of what the law ought to be as applied to the case, and then the most careful study of the books to see how it has been applied in like instances. I thought out my cases and thought out the law as applied to them, and then verified or corrected my thought by the opinions of the courts. The highest legal authority has declared the common law to be the perfection of common sense, so that any man who thoughtfully applies his common sense ought to know what the common law is. The only need he has of the cases in the books is not so much to guide himself as to use them to direct the minds of the judges to adopt his common sense as the law of the case, resulting from precedents. Therefore I want to repeat, find out the law of the case yourself first, and then by comparison of the cases pertaining to it decide it; perfect your sense as to what the law is. I by no means advise a young man to make himself simply what is known as a “case lawyer,” because lawyers of that class endeavor to remember and find a case like their own which has been decided and they rest there in their minds without other diligence or study to see how far that decision sustained the case.
There is a curious fact which has occurred in my own practice, and which I suspect has occurred in the practice of any experienced lawyer. I won more cases which I tried in behalf of the plaintiff [991] in the younger years of my profession than I win now of the same class in proportion to the number tried after fifty years of professional labor. This would seem to be almost a paradox but an easily explained one. As a young man I took my cases as they came to me, and prepared them for trial substantially before I brought them. Thus, unless I met with some surprise in the state of facts upon which I proceeded,--and I generally took care to know the facts in my cases on both sides before I began, which was the best time to find them out,--it was my fault if I did not sufficiently prepare myself to learn the law in my case. But in later years it is supposed the client does not as a rule apply to the lawyers of years' standing in the profession to have his case begun. This, I take it, is through fear of being put to the expense of large fees. In later years I have been applied to most frequently to take charge of cases that have been substantially lost by proceedings had in them before they came to me, cases that in many instances could have been won if they had been properly taken in hand earlier. In other words I am called in largely in desperate cases. But I have made it the rule of my life never to refuse to assist in trying cases, however desperate, if I believe there is any chance to win. That there should be no mistake of my mention upon this topic I think I may state a case, in a narrative form, so as not to be too tedious:--
Some years ago I was sitting in my office in Washington when a gentleman came in, having under his arm a thick pamphlet with that dirty red paper cover which designated the record of the Supreme Court of the United States. Producing a letter of introduction from a valued friend, giving him a very high character for probity and standing, he said to me:--
“We have a case in the Supreme Court of which this is the record. It has been decided against us. I want you to examine the record carefully and see if there is any way we can save ourselves. What will you charge to do that thoroughly and give us a written opinion?”
Looking ruefully at that thick record I said: “I should not like to state a price without knowing something about the case. Perhaps I shall not choose to give an opinion at all. You appear to be a gentleman of intelligence; please state your case so that I may see what it is.” [992]
“I am acting,” said he, “in behalf of the American Emigrant Aid Society of Connecticut. Our business has been procuring lands in the western country, generally those denominated swamp lands, and settling emigrants upon them. We got a large quantity of such swamp lands of Adams County, Iowa,after considerable negotiation. They gave our trustee a full deed of them, and we paid them by building a court-house for them, which they received as payment on account,
 |
| Benj. F. Butler in 1856. from a photograph. |
“Were the lands part of the county?”
“Yes.”
“Is that the only complaint they make against you?”
“Yes; they claim to recover back the money as obtained by false pretences.”
“That is impossible; that is against the Scripture: ‘It is naught, it is naught, saith the buyer, but when he has gone his way then he boasteth.’ Well, what was done with your case?”
“It was brought in the Supreme Court of the State, and being Yankees we took it to the Circuit Court of the United States, and it [993] was tried there and we were beaten. Then we appealed to the Supreme Court, and it has lain there three or four years. We were heard fully, and the Supreme Court has decided against us.”
“You must have left out something in your statement of your case,” I said. “The county lived on and owned the lands and knew as much about them as you did. The claim of false pretences cannot be sustained for a moment.”
“I have told you the case exactly as it is,” said he.
“Very well; has anything else happened?”
“Yes; we moved for a rehearing in the Supreme Court, and that has been decided against us.”
“Has anything else happened to your case?”
“Yes; they moved to have a mandate upon which the money was to be accounted for sent down in advance of the usual time. We had a hearing upon that, and that was also decided against us last Monday.”
“Now, then,” I said, “the patient being dead and buried, and the sexton having gone home to supper, you come to me for resurrection. I must say that I see no earthly opportunity; the rule of the Supreme Court is that it will have but one rehearing in a case.”
“But,” said he, “it is much to us; we have got seventeen more just such cases with other counties in Iowa or elsewhere, and they will all bring suits.”
“Well,” said I, “when they bring another suit I will endeavor to do something for you if I can, but it is no use for me to look into this record, this case is a by-gone.”
“Well, all the same I want you to look into the record of this case and tell me what is your charge?”
“ I ought not to charge anything, for it will do you no good. But I do not read such records for fun; but if you insist upon it, after what I have told you, I will examine it, and give you my opinion, and charge you $500 for so doing.”
He wrote his check for the amount, threw his record down on the table, and said: “Whenever you want to see me, send for me, but spare no expense to put this right.”
I took the record with me to my house. The next morning, after having finished my New England Sunday breakfast of baked beans and fish-balls, being curious, I opened the record and read it carefully [994] through in all its particulars, and I found my client to be exactly right in all his statements of the case. The case as he stated it was all that was set forth in the pleadings, and all to which the evidence applied. I had not the copy of the decision nor the brief of either side so as to know upon what ground the decision was put, and I was exceedingly puzzled, so much so that I read the record once more with great care, and still found myself utterly at a loss. The next morning I sent to the clerk's office for a copy of the decision of the court, and after reading that carefully I was still more puzzled how any such a decision could have been reached. For the court had decided at first that there was nothing in the claim of the county for a right to recover back the money for the lands because of any representations of the buyer that he believed them to be worth less than they were, and I could find nothing else in the record on which a decision could be made against the buyer. During the week I examined all the papers in the case and prepared a motion for another rehearing.
On the following Monday morning I went before the court and with my best bow asked leave to file a motion for a rehearing in the case of the American Emigrant Aid Society, Plaintiff in Error, against the County of Adams. The chief justice looked at me with a little surprise.
“Are you aware, Mr. Butler,” said he, “that there has been one motion for a rehearing heard and denied, and that this was the unanimous opinion of the court?”
“Mr. Chief justice,” I replied, “I should not have prepared myself as I ought to have done in the case if I had not learned those facts. I find no fault with the opinion of the court in denying a rehearing, but the whole matter has proceeded upon a very vital mistake.”
“How many rehearings,” said the chief justice, “do you think ought to be permitted by the court in a given case?”
“I am aware of the rule, your honor,” said I, “but I should say in answer to that question, in the abstract, as many hearings as are necessary to establish the truth and justice of the case; in the concrete, as many as any gentleman fit to practice at your bar will peril his reputation by moving for. And I take leave to assure the court with all due solemnity that a great error has been unfortunately [995] committed in this case, which the court, if you will grant me a rehearing, will thank me for having brought it to their attention.”
Judge Clifford, who sat at the right of the chief justice, and Judge Swayne, who sat at the left, observing my earnestness, leaned forward and conversed with him a moment, and then the chief justice said: “Very well, you may file your motion. You are aware that it is to be argued in writing only?”
“Yes, may it please your Honor; I have some slight acquaintance with the rules of this court. My argument will be on your Honor's consultation table by Saturday, if that will do.”
He bowed and I left. During that week I prepared an argument, in the heroic vein, I am bound to say, and had it laid before the court. They held it under consideration about three weeks, and then Judge Bradley, who had delivered the opinion of the court at first, said that he was instructed by the court that the mandate should be withdrawn, the decree reversed, and the case stand for argument on the first day of the next term.
At that term I was present and argued my case, although I was exceedingly busy in my candidature for the governorship. The court took the case under advisement and three or four weeks later Judge Bradley delivered an opinion reversing the former decree and ordering the plaintiff's bill to be dismissed, and that the appellant recover his costs. And afterwards Judge Swayne in a friendly conversation recalled to me what I had said in making my motion for a rehearing, and stated that he personally did thank me for bringing that case again before the court, as a mistake had been made which ought not to have occurred, and which was only accounted for by the haste with which the court had to do its work. I believe this is the only case which has ever been reheard by the court on the second rehearing, except the legal tender cases, and I happened to be concerned with them also.
It is naturally distasteful to me to recall matters wherein I may seem to be making a boast of my own qualities, and as the reader may be led to think that he is not getting an impartial history, I have concluded to set out here what one of the ablest lawyers of Massachusetts, John Quincy Adams Griffin, Esq., and others have said of me as a practitioner at the bar, without my knowledge, rather than to have so much of such details written by myself:-- [996]
General Butler has the power, possessed by but few men, of attending to several important mental operations at the same time. An incident will show you my meaning:--In a trial of quite an important matter, in the year 1860, I was counsel on the same side with General Butler. It was a busy season of the year for lawyers like him, who always had an overflowing docket. The trial began just after his return from the nomination of Breckinridge. He was to make a report of his doings to his constituents at Lowell. The meeting was called to be held at night. Dissatisfaction existed in the party, and the General must, therefore, speak with care and consideration. He determined to write what he was to say. But the court began early and sat late. He took his seat in court, and while the adverse party examined their witnesses in chief, he wrote out his speech, apparently absorbed therein. But he cross-examined each witness at great length, with wonderful thoroughness and acuteness, evincing a perfect knowledge, not only of what the witness had said in substance, but when needful, of the phrases in which he had uttered it. At noon, over our dinner, he read over what he had written and made such corrections as were needful, which were quite as few, I thought, as would have been found if the speech had been written in the quiet of his study. In the afternoon he went through the same routine, and at night made his speech. This is but an instance. Amid confusion of transactions, where other men became indecisive, he always saw his way clear. Whatever his occupations, however intently his mind was employed, it was always safe to interrupt him by suggestions or inquiries about the matter in hand, or anything else, for he could answer on the instant, clearly and without the slightest confusion or distraction of his purpose.
Unexampled success attended his professional efforts, so characterized by zeal and shrewdness. When the war summoned him from these toils, he had a larger practice than any other man in the State. I have no doubt that he tried four times more causes, at least, than any other lawyer, during the ten years preceding the war. The same qualities which made him efficient in the war, made him efficient as a lawyer: Fertile in resources and strategem, earnest and zealous to an extraordinary degree, certain of the integrity of his client's cause, and not inclined to criticise and inquire whether it was strictly constitutional or not, but defending the whole line with a boldness and energy that generally carried court and jury alike. His ingenuity is exhaustless. If he makes a mistake in speech or action, it has no sinister effect, for the reason that he will himself discover and correct the error before any “barren spectator” has seized upon it. [997]
He is faithful and tenacious to the last degree. There is no possibility of treachery in his conduct. “He would not betray the devil to his fellow.” Every other prominent Massachusetts Democrat, when it became profitable to do so, condemned a previous coalition that had been entered into between them and the Free Soilers after they had taken and consumed its fruits. General Butler's political interests strongly urged him to the same dishonor. But he never hesitated an instant, and uniformly justified the coalition, and openly defended it in every presence and to the most unwilling ears. In his personal relations the same traits are observable. He is quite too ready, I have sometimes thought, to forgive (he never forgets) injuries, but his memory never fails as to his friends.
“The basis of Napoleon's character,” says Gourgand, “was a pleasant humor.” “And a man who jests,” continues Victor Hugo, “at important junctures, is on familiar terms with events.”
A pleasant humor and a lively wit, and their constant exercise, are the possession and the habit of General Butler. Everybody has his anecdote of him. Let me refer to one anecdote of him in this respect, and that shall suffice for the hundreds that I might recall.
The General was a member of our House of Representatives one year when his party was in a hopeless and impotent minority, except on such occasions as he contrived to make it efficient by tactics and strategems of a technical, parliamentary character. The speaker was a Whig, and a thorough partisan. The Whigs were well drilled and had a leader on the floor of very great capacity, Mr. Lord, of Salem. During one angry debate, General Butler attempted to strangle an obnoxious proposal of the majority by tactics. Accordingly he precipitated upon the chair divers questions of order and regularity of proceeding, one after the other. These were debated by Mr. Lord and himself, and then decided by the speaker uniformly according to the notions advanced by Mr. Lord. The General bore this for some time without special complaint, contenting himself with raising new questions. At length, however, he called special attention to the fact that he had been overruled so many times by the chair, within such a space of time, and that, as often, not only had the speaker adopted the result of Mr. Lord's suggestions, but generally had accepted the same words in which to announce it; and, said he: “Mr. Speaker, I cannot complain of these rulings. They doubtless seem to the speaker to be just. I perceive an anxiety on your part to be just tc the minority and to me, by whom at this moment they are represented, but you feel as did Saul in his trance on the road to Damascus, ‘Lord, what wilt thou have me to do?’ ” [998]
No man in America can remember facts, important and unimportant, like General Butler. Whatever enters his mind remains there forever. And his knowledge, as I have said, is available the instant it is needed, without confusion or tumult of thought. The testimony delivered through days of dreary trials, without minutes or memoranda of any kind, he could recall in fresher and more accurate phrases, remembering always the substance, and generally all the important expressions, with far more precision than the other counsel and the court could gather it from their “writing books,” wherein they had endeavored to record it. Practice for a long series of years had so disciplined his mind in this respect that I think it quite impossible for him to forget.1 And as he has mingled constantly with every business and interest of humanity since he was admitted to the bar, he has become possessed of a marvellous extent and variety of knowledge respecting the affairs of mankind.
Here are also some comments of other of my associates, and narratives of my cases and conduct, which I prefer to have told in their own words:--
One example of what a writer styles General Butler's legerdemain. A man in Boston, of respectable connections and some wealth, being afflicted with a mania for stealing, was, at length, brought to trial on four indictments; and a host of lawyers were assembled, engaged in the case, expecting a long and sharp contest. It was hot summer weather; the judge was old and indolent; the officers of the court were weary of the session, and anxious to adjourn. General Butler was counsel for the prisoner. It is a law in Massachusetts that the repetition of that crime by the same offender, within a certain period, shall entail a severer punishment than the first offence. A third repetition involves more severity, and a fourth still more. According to this law, the prisoner, if convicted on all four indictments, would be liable to imprisonment in the penitentiary for the term of sixty years. As the court was assembling, General Butler remonstrated with the counsel for the prosecution upon the rigor of their proposed proceedings. Surely one indictment would answer the ends of justice; why condemn the man to imprisonment for life for what was, evidently, more a disease than a crime? They agreed, at length, to quash three of the indictments, on condition that the prisoner should plead guilty to the one which charged the theft of the greatest amount. The prisoner was arraigned. [999]“ Are you guilty or not guilty?”
“ Say ‘ guilty,’ sir,” said General Butler, from his place in the bar, in his most commanding tone.
The man cast a helpless, worried look at his counsel, and said nothing.
“Say ‘guilty,’ sir,” repeated the General, looking into the prisoner's eyes.
The man, without a will, was compelled to obey, by every constitution of his infirm mind.
“Guilty,” he faltered, and sunk down into his seat, crushed with a sense of shame.
“ Now, gentlemen,” said the counsel for the prisoner, “have I, or have I not, performed my part of the compact?”
“You have.”
“Then perform yours.”
This was done. A nol pros. was duly entered upon the three indictments. The counsel for the prosecution immediately moved for sentence on the fourth, to which the prisoner had pleaded guilty.
General Butler then rose, with that indictment in his hand, and pointed out a flaw in it, manifest and fatal. The error was in designating the place where the crime was committed.
“ Your honor perceives,” said the General, “that this court has no jurisdiction in the matter. I move that the prisoner be discharged from custody.”
Ten minutes from that time, the astounded man was walking out of the court-room free.
The flaw in the indictment, General Butler discovered the moment after the compact was made. If he had gone to the prisoner, and spent five minutes in inducing him to consent to the arrangement, the sharp opposing counsel, long accustomed to his tactics, would have suspected, a ruse and eagerly scanned the indictment. He relied, therefore, solely on the power which a man with a will has over a man who has none, and so merely commanded the plea of guilty. The court, it is said, not unwilling to escape a long trial, laughed at the manoeuvre, and complimented the successful lawyer upon the excellent “discipline” which he maintained among his clients.
His audacity and quickness stood him in good stead. One of his first cases being called in court, he said in the usual way: “Let notice be given!”
“ In what paper?” asked the aged clerk of the court, a strenuous Whig.
“ In the Lowell Advertiser,” was the reply. Now, the Advertiser, being a Jackson paper, was never mentioned in a Middlesex court; and of its mere existence few there present would confess a knowledge. [1000]
“ The Lowell Advertiser?” said the clerk, with disdainful nonchalance, “I don't know such a paper.”
“ Pray, Mr. Clerk,” said the lawyer, “do not interrupt the proceedings of the court; for if you begin to tell us what you don't know, there will be no time for anything else.”
He was always prompt with a retort of this kind. So, at a later day, when he was cross-questioning a witness in not the most respectful manner, and the counsel interposing, reminding him that the witness was a professor in Harvard College, he instantly replied: “I am aware of it, your honor; we hung one of them the other day.”
I tried causes frequently in the States of New Hampshire, Maine, and Massachusetts, and in quite all the circuit courts of all the districts of the latter State. My docket contained causes of every description of practice and in regard to all possible business, so that from necessity preparing myself to examine and cross-examine experts in every class of business, I became more or less an expert in all myself. I suppose I may mention a few of the more important cases, especially where great principles were decided, in all of which I was engaged as leading counsel.
In 1853 the legislature passed an act annexing the city of Charlestown to the city of Boston, provided both cities, by ballot in the majority, should decide to accept the annexation, such acceptance to be certified to the Secretary of State by a certificate of the popular vote by a majority of the mayor and aldermen of each city. The vote of Boston was strongly in favor of annexation. There was a very strong feeling against it in Charlestown. Public meetings were held; all sorts of printed publications made, in fact a regular canvass. The vote in both cities was held on the same day. The Boston majority for the annexation was duly certified at once to the Secretary of State, and by him published. The fact that Charlestown had, by a small majority, voted in the affirmative duly appeared in the journals, but four out of seven aldermen were opposed to annexation, and determined to prevent it if they could. As they had nothing to do but certify the vote, apparently, it would be held that they would be obliged by a mandamus from the court to do that. Boston rejoiced greatly, and without waiting for the action of its sister city, Charlestown, proceeded to take possession of Charlestown, divided it into wards, laid out streets and did everything as if the [1001] matter was settled. The aldermen who had determined to obstruct the annexation proceedings applied to me and Mr. Griffin and declared that if they could escape the penalties of the law they would not certify the vote if that would do any good. We examined the question carefully and gave an opinion that under the statute, annexation could not take place until the popular vote in favor of it was duly certified to the Secretary of State by a majority of the mayor and aldermen of the city of Charlestown. And if a majority of that board would not certify it, they might be compelled to do so upon a petition of the attorney-general to the Supreme Court for a mandamus. The aldermen exhorted us to do everything we could to prevent annexation. We thereupon notified the attorney-general that my clients peremptorily refused to certify to the vote on the ground that the act requiring them to do it was unconstitutional and void, and not within the legislative power.
The leader of the other side in Charlestown moved upon the attorney-general for a petition for mandamus to be brought. All the facts were agreed, and the questions arose as they would under bill and answer in equity. The case was argued before five justices, at the head of whom was the most learned and the ablest judge of this State, Lemuel Shaw, Esq.
I was no favorite of his in my earlier days. He was a man of somewhat forbidding exterior and manners, but of the finest qualities of head and heart. Liking or disliking a man did not interfere with his doing him full justice on the bench. He had a brusque sort of humor which all who knew him enjoyed very much.
On one occasion there had been sent me a lot of very fine black otter skins by a member of the Hudson Bay Company. These I had made into a very nice coat, which in the inclement weather covered me from the cold and wet. One morning I went into the consultation room of the Supreme Court to meet Judge Shaw on a mere formal matter like signing an order. He greeted me very pleasantly and kindly. We sat a moment after what the judge had to do was done, and he admired my coat exceedingly, looking it over and praising it highly. At last looking up with a quizzical smile he said: “How is it, Mr. Butler? what are those lines in Pope? Aren't they something like this:--
The fur that warmed a monarch warms a bear.” [1002]
I said: “I think you are a little mixed in your tenses this morning, Mr. Chief Justice.”
“ Not as to the last fact,” said he.
I said he was brusque in his manner, especially on the bench. One day shortly before my Charlestown case came up I was going down in the cars from Lowell to Boston, and at the request of a merchant friend of mine, whose watch dog had been poisoned, I was taking down my own to leave with him. My dog was an immense mastiff, with a black muzzle, very quiet but very powerful. The smoking-car was always a sort of exchange as we went down. It was used by the passengers for playing cards and for familiar chat. I had no sooner entered the car with the dog behind me than I was saluted with: “Halloa, halloa, Butler, where are you going this morning?”
“ Down to the Supreme Court, gentlemen.”
“ Is that your dog?”
“Yes.”
“ What are you taking him down to court for?”
“ Oh,” I said, “I thought I would show him the chief justice so as to teach him to growl.”
Shortly afterward, the Charlestown case was tried and decided upon every point in my behalf, the chief justice delivering the opinion, and it was so conclusive that it put off the annexation of Charlestown to Boston for twenty years.
Shortly after this I called in the course of business into the consultation room where sat the chief justice alone, and after the usual salutation he began: “Well, Mr. Butler, you won your Charlestown case?”
“Oh,” I said, “thanks, Mr. Chief Justice; I am exceedingly obliged to you for giving me that case.”
“ Well, then, Mr. Butler, I take it you have no fault to find with that last growl of the chief justice.”
My last act toward him was after he resigned at the end of thirty years service as chief justice. I was chairman of the committee of the bar to make a proper address on that occasion in their behalf. Our committee went to his house on Mt. Vernon Street, as he was not able to come out in the inclement weather. I took great pains with that address, feeling every appreciative word in it from my very heart. The chief justice attempted to reply to it, but his feelings [1003] [1004] [1005] [1006] [1007] overcame, him. He broke down in his expressions, but came forward to me, and pressing my hand, said: “And this, too, to come from your lip,; and inspired by your kindness.”
I never saw him again because in the following spring I left for the war and he died during that year.
My connection with the Charlestown case was: of very great advantage to me because it brought me prominently and successfully forward as an advocate in the higher branches of constitutional law.
In 1845 I was admitted to the Supreme Court of the United States, upon the motion of the Hon. Levi Woodbury, Jackson's Secretary of the Navy and Secretary of the Treasury. It was at the same term in which S ward and Lincoln were admitted, and I believe I am now the oldest living practitioner in that court by date of commission. I was then in my 27th year, and among the youngest, if not the youngest, ever admitted to that court, for in the olden time only the elder members of the bar got to Washington to be admitted. But I had the fortune to have drawn the specification for the patent of Elias Howe, a native of Massachusetts, for his invention of the sewing machine. This brought me there to argue a motion in that court, but I did not do so as the case was settled.
The first important case that I argued in the Supreme Court was in 1857. It was Sutter vs. the United States. Sutter had been fortunate enough to find gold in the raceway of his sawmill near Sacramento in 1849. The case involved the effect of the laws and action of the provincial governors of Mexico in granting titles to very extended parcels of lands. The rules which should govern the distribution of that land and the validity of titles to such land under our treaty of Guadalupe Hidalgo were under discussion in that case. It was a leading case upon those questions and affected the title of real property to the value of many millions. The case brought me somewhat before the people of the Western country, and I have had occasion to argue quite a number of cases since involving questions of Mexican law. This, I belie e, has not happened to any other New England lawyer, certainly not to the extent it has to me.
I was employed by Mr. Speed, the Attorney-General of the United States, to assist Mr. Stansbury in the argument of the case of Milligan vs. the United States. This case involved questions of new [1008] and untried law in this country, and which had not been distinctly settled anywhere else. The case was this :--
There was a body of quasi-secessionists in Indiana and the adjoining States known as the Knights of the Golden Circle. Milligan was a member of that body and there was an. accusation made against him of being a party to a conspiracy to release the Confederate prisoners of war from Johnson's Island and send them. back to the assistance of the enemy.2
Milligan was tried by a military commission, duly convened The commission heard the case in due form. and advised his punishment. Being held in prison to await the result of that proceeding, a writ of habeas corpus was brought in his favor. to have him released, and in due course of the law it came before the Supreme Court of the United States.
It was alleged in the charges that Indiana was, at the time of the acts set forth, the theatre of war in time of war and that the State was held by military forces of the United States which were guarding it against these transactions and had military control of the State. It was further alleged that Milligan was not a soldier of the United States and was, therefore, within the jurisdiction of these military forces and amenable for his military offences to the action of the military commission.
This was the first time that the action of a military commission had come directly before the Supreme Court. Every step in the proceedings was contested by the learned counsel who appeared for Milligan, the Hon. Jere S. Black, the Hon. David W. Field, and General Garfield, the latter of whom was brought into the case to give it some tinge of loyalty, and other counsel. The cause of the United States was sustained by the court in every point but one, and that was, as the Circuit Court of the United States was open in Indiana, that therefore, Milligan had a right to be tried before the circuit court, There was no allegation in the pleadings that the circuit court was open. But the court said that it would take judicial notice of that, and that in consequence of its being open the case was not within the jurisdiction of the military authorities for trial. While, of course, [1009] bowing to the decision, I have always thought, with all deference, that it was a pusillanimous one. The opinion was sustained by a majority of only one, the chief justice being a dissenter.
My argument on that point was this: The record alleged that the acts were done while Indiana was the theatre of war; that was admitted. All acts to rescue prisoners of war and afford aid and comfort to the enemy and turn the prisoners loose upon their guards, are warlike acts. I held that this was in time of war, and while Indiana was under military jurisdiction. If the courts were open, they were open only by military permission. They were not open for the purpose of trying cases which were within military jurisdiction, but for proceedings between party and party and with the ordinary business arising in those courts in the time of peace, and such as had no effect upon the Government of the United States. I called the attention of the court to the fact that the courts of the District of Columbia were open, when the sounds of the rebel General Early's cannon were ringing in the ears of the judges of the courts, and everybody else was under the full jurisdiction of the military. Could it be said, then, that the men of Early who were captured were to be tried by civil law by the courts of the district which were utterly powerless to give any force and effect to their decrees? I argued that the court could not take judicial notice of the fact that the courts of Indiana was open; all they could have notice of was that the court ought to have been open, as peace ought to have reigned in Indiana, but it did not.
I take the liberty to remark here, that during the whole War of the Rebellion the government was rarely ever aided by the decisions of the Supreme Court, but usually was impeded and disturbed by them. After I left Baltimore Chief Justice Taney issued a habeas corpus to release a secessionist who had been captured and was held by the orders of the President of the United States. So that the President was obliged to suspend the writ of habeas corpus in order to relieve himself from the rulings of that chief justice who delivered the opinion substantially that the negro had no rights that a white man was bound to respect.
While I remained in Washington, I was trying cases before the supreme court of the district and the Supreme Court of the United States. There was one case which I tried before both courts which was very important, not only for the amount involved, but as establishing [1010] a precedent which had not then been established in England or in this country.
In April, 1862, when Farragut made his wonderful passage with his fleet to New Orleans, he took possession of a large amount of water-borne property, especially coal afloat, and many vessels, a considerable number of which originally belonged to Northern owners who had sent them down there before the war broke out. Among them were several valuable river steamers.
When I occupied the city with my troops, many of these vessels became necessary as a means of transportation, and were turned over by the navy to the army by appraisement. So also was the coal and other property captured afloat, for it was the prize of war.
The Prize Act makes it the duty of the Secretary of the Navy, upon the capture of property, to see that it is brought before a prize court within three months, or the captor may bring suit in prize in any court after that time.
The whole value of the property captured amounted to nearly two million dollars. Farragut was by far too busy fighting during the war to go around with a marking pot,--as Porter did, stencil-marking bales of cotton on shore in the Red River campaign: “Captured by the U. S. Navy. D. D. Porter,” --and, there being no district court in New Orleans, this property captured by Farragut could not by him be brought before a prize court there.
After the close of the war, nothing having been done, Vice-Admiral Theodorus Bailey, second in command, called upon me and asked me to get the vessels and other property captured by himself and Farragut condemned as prizes. Accordingly, I filed libels in prize against the property in the supreme court of the district. The Secretary of the Navy employed counsel to represent that department in the matter. We had a hearing before the circuit court of the district sitting in admiralty, which made the decision that the libels should be sustained, and that a prize commissioner should be appointed to take testimony. This decision was made by a single judge, and no appeal was taken from this decision. While the testimony was being gathered up and taken before the prize commissioner, I went home to Massachusetts. In my absence a meddling attorney, by the name of Corwine, went to the Secretary of the Treasury and told him that the Farragut cases would take a large sum of money out of the [1011] treasury, and that if he could be employed he could stop the proceeding.
Now, these cases were no more the business of the Secretary of the Treasury, than was the question what the Emperor of China should have for breakfast the next morning. Two departments, the Law Department and the Navy Department, were already engaged in the case to look after the interests of the United States. But Corwine got his employment, and then proceeded, without any notice to any-body engaged in the case on any side of it, to make a motion before a single judge of the supreme court of the district. This judge, without giving a hearing and without notice to anybody, ordered the libels to be dismissed. How that could be done I never could understand or account for, except that there was a story that this judge sometimes drank more of something besides water than was good for him. However that may be, I did not get any notice of that most disreputable proceeding for months, and then I found it out only by looking at the docket of the court to see at what time I could give notice to go on with the taking of the testimony. I then took an appeal from that proceeding to the whole court sitting in bane, and without any difficulty got my case reinstated.
Utterly disgusted with being obliged to try a case involving more than a million in money where such unheard — of proceedings could take place, and desiring nothing but the best adjudication of the case, I appealed to the Attorney-General, the Secretary of the Navy, and the Secretary of the Treasury, as he had got into it, for an agreement that the case should be referred by the rule of the court to three arbitrators,--two of them men of the highest standing as lawyers, the Hon. Henry W. Paine, of Massachusetts, and the Hon. Thos. J. Durant, of Louisiana, and the third, the Hon. Gustavus V. Fox, late assistant Secretary of the Navy,--who would have a knowledge of the course involved in the proceedings, with the right to appeal from the judgment of the admiralty court to the Supreme Court.
When I presented this agreement to the Attorney-General, he said: “Who ever heard of a question of prize being submitted to arbitration? Have you got any precedent for it?”
“ No, Mr. Attorney-General, I have not, but I do not see why you should object. If we go on and try under arbitration and it is not proper jurisdiction you can set it all aside if you want to. It gives [1012] you one more chance against me; but I am willing to take that risk rather than to try the case before the admiralty court, some of the judges of which are at all times a full court.”
The agreement for the rule of arbitration, being signed by the Attorney-General, the Secretary of the Navy, and the Secretary of the Treasury, was presented to the court. The rule was made absolute and the referees were appointed. The case was heard at length before the arbitrators and an award found in favor of Farragut for substantially all the items claimed. The award was confirmed by the Court of Appeals. A bill was taken in the United States Supreme Court, the United States wanting to have a full hearing. The judgment in our favor, carrying more than one million dollars, was sustained. The precedent decided that any controversy between party and party, under the rule of the court, might be sent to a board of referees or arbitrators to be tried.
By the rules of prize cases, as all the costs are to come out of the prize money, including fees of counsel, there must be judgment by the court for those fees. When that question was brought up I happened not to be in Washington, so that I could not appear in my own favor. The court awarded me seventy-five thousand dollars,--little enough, because the case was one of great labor and had been before the several courts a number of years. I only mention the question of fees now because when I was before the people of the State of Massachusetts in the campaign for the governorship, the Republican party and Republican speakers attacked me very virulently regarding the enormous charges that I had demanded and received from the United States, insisting that nothing but some false and underhanded agreement could account for it.
A lawyer in full practice who carefully prepares his cases must study almost every variety of business and many of the sciences. Thus of necessity he is taught many things by his professional labors, which would not be taught to a man in any other pursuit of life. In almost all important cases, especially those relating to personal injuries of any sort,--including of course death by murder,--and those relating to the action of machines and machinery in pressing patent cases, if a lawyer hopes for success he should make himself fully acquainted with everything of science or fact that pertains to the case in hand. [1013]
In quite all important cases more or less expert testimony is introduced before the court,--that is, testimony of men thoroughly acquainted with the matters of the subject. The lawyer must be prepared to cope with such testimony on the one side for himself, and to cross-examine the witnesses of his opponent whenever produced. An expert's testimony, for which large sums are generally paid, is usually a sworn argument for the benefit of the party who calls him. It is, therefore, of the greatest importance that the opposing counsel should be expert enough on the matter in question to be able to cross-examine and detect the weak points in the expert argument against him.
I have defended scores of cases where the question of sanity was the main one in the case, and I have brought many suits against physicians for malpractice as to many parts of the human frame. So that, in preparing myself in that class of cases, I have been obliged to make full studies in regard to the operation of the mind and also studies of the separate parts of the body, and the character of their ailments and the treatment thereof, so as to be able in some degree to cope with
 |
| Engraved from a life-size bust in General Butler's library. |
So in accident cases upon railroads: I have spent days in examining all parts of engines and trains and especially the capabilities to start and stop a train. I have ridden many hundred miles upon the engine upon different roads and learned enough so as to run an engine myself, a knowledge which did me good service at one time in Louisiana.
I have spent days in machine shops upon the same and kindred [1014] questions. In one very important case I spent a week in the repair shop of a railroad and a part of the time with my coat off, with a hammer in my hands, ascertaining the capabilities of iron to resist pressure, and studying the probable result of the breakage of an axle under the tender of an engine. On these points my case turned; and I may say that my instruction so acquired saved the case.
In fine, a lawyer who sits in his office and prepares his cases only by the statements of those who are brought to him will be very likely to be beaten.
When I was quite a young man I was called upon to defend a man for homicide. He and his associate had been engaged in a quarrel which proceeded to blows and at last to stones. My client with a sharp stone struck the deceased in the head on that part usually called the temple. The man went and sat down on a curbstone, the blood streaming from his face, and shortly afterwards fell over dead.
The theory of the government was that he died from the wound in the temporal artery. My theory was that the man died of apoplexy, and that if he had bled more from the temporal artery he might have been saved,--a wide enough difference in the theories of the cause of death.
Of course to be enabled to carry out my proposition I must know all about the temporal artery, its location, its functions, its capabilities to allow the blood to pass through it, and in how short a time a man could bleed to death through the temporal artery; also, how far excitement in a body stirred almost to frenzy in an embittered conflict and largely under the influence of liquor on a hot day, would tend to produce apoplexy. I was relieved on these two points in my case because the government did not come prepared to deal with that subject, but relied wholly upon the testimony of a surgeon that the man bled to death from the cut on the temporal artery from a stone in the hand of my client. That surgeon was one of those who we sometimes see on the stand who think that what they don't know on the subject of their profession is not worth knowing. He testified positively and distinctly that there was and could be no other cause for death except the bleeding from the temporal artery, and he described the action of the bleeding and the amount of blood discharged.
Upon all these questions I had thoroughly prepared myself. On cross-examination, I said: “Doctor, you have talked a great deal [1015] about the temporal artery; now will you please describe it and its functions? I suppose the temporal artery is so called because it supplies the flesh on the outside of the skull, especially that part we call the temples, with blood.”
“ Yes; that is so,” he answered.
“ Very well. Where does the temporal artery take its rise in the system? Is it at the heart?”
“No,” he said, “the aorta is the only artery leaving the heart which carries blood toward the head. Branches from it carry the blood up through the opening into the skull at the neck, and the temporal artery branches from one of these.”
“ Doctor, where does it branch off from it? on the inside or the outside of the skull?”
“ On the inside.”
“Does it have anything to do inside with supplying the brain?”
“ No.”
“ Well, Doctor, how does it get outside to supply the head and temples?”
“ Oh,” he said, “it passes out through its appropriate opening in the skull.”
“ Is that through the eyes?”
“ No.”
“The ears?”
“ No.”
“ It would be inconvenient to go through the mouth, would it not, Doctor?”
Here I produced from my green bag a skull. “I cannot find any opening on this skull which I think is appropriate to the temporal artery. Will you please point out the appropriate opening through which the temporal artery passes from the inside to the outside of the skull?”
He was utterly unable so to do.
I said: “Doctor, I don't think I will trouble you any further; you can step down.” He did so, and my client's life was saved on that. point.
The temporal artery doesn't go inside the skull at all.
Perhaps I may state another case illustrative of the necessity for the lawyer in trying his cases to have some knowledge of the human system and the causes of its disturbances. [1016]
I had a young client who was on a railroad car when it was derailed by a broken switch. The car ran at considerable speed over the cross-ties for some distance, and my client was thrown up and down with great violence on his seat. After the accident, when he recovered from the bruising, it was found that his nervous system had been wholly shattered, and that he could not control his nerves in the slightest degree by any act of his will. When the case came to trial, the production of the pin by which the position of the switch was controlled, two thirds worn away and broken off, settled the liability of the road for any damages that occurred from that cause, and the case resolved itself into a question of the amount of damages only. My claim was that my client's condition was an incurable one, arising from the injury to the spinal cord. The claim put forward on behalf of the railroad was that it was simply nervousness, which probably would disappear in a short time. The surgeon who appeared for the road claimed the privilege of examining my client personally before he should testify. I did not care to object to that, and the doctor who was my witness and the railroad surgeon went into the consultation-room together and had a full examination in which I took no part, having looked into that matter before.
After some substantially immaterial matters on the part of the defence the surgeon was called and was qualified as a witness. He testified that he was a man of great position in his profession. Of course, in that I was not interested, for I knew he could qualify himself as an expert. In his direct examination he spent a good deal of the time in giving a very learned and somewhat technical description of the condition of my client. He admitted that my client's nervous system was very much shattered, but he also stated that it would probably be only temporary. Of all this I took little notice; for to tell the truth I had been up quite late the night before and in the warm court-room felt a little sleepy. But the counsel for the road put this question to him:--
“Doctor, to what do you attribute this condition of the plaintiff which you describe?”
“Hysteria, sir; he is hysterical.”
That waked me up. I said: “（Doctor, did I understand — I was not paying proper attention — to what did you attribute this nervous condition of my client?” [1017]
“ Hysteria, sir.”
I subsided, and the examination went on until it came my turn to cross-examine.
“Do I understand,” I said, , “that you think this condition of my client wholly hysterical?”
“Yes, sir; undoubtedly.”
“And therefore won't last long?”
“No, sir; not likely to.”
“Well,” said I, “Doctor, let us see; is not the disease called hysteria and its effects hysterics; and isn't it true that hysteria, hysterics, hysterical, all come from the Greek word ὑστέρα̣”
“It may be.”
“Don't say it may, Doctor; isn't it? Isn't an exact translation of the Greek word ὑστέρα, the English word ‘womb’ ?”
“ You are right, sir.”
“Well, Doctor, this morning when you examined this young man here,” pointing to my client, “did you find that he had a womb? I was not aware of it before, but I will have him examined, over again and see if I can find it. That is all, Doctor; you may step down.”
I may be permitted perhaps to give one more case in which I was engaged, not very long before I went into the army, which illustrates the instruction which full law practice brings to a lawyer. It was this:--
The son of a very warm friend had been on board the ship Storm King at Hong Kong in China. The Storm King had prepared for a race from Hong Kong to London with another clipper ship, so she was obliged to start as nearly as might be when her rival did. My client was third mate, but owing to some claimed misunderstanding between him and the captain he was dismated and sent forward to live with the crew in the forecastle. There was no time in which to furnish the ship with fresh meat and vegetables for the voyage, such as would prevent the breaking out of the scurvy, or at least it was not done. Indeed, all the fresh meat on board consisted of a small pig, and that was disposed of on the cabin table. The vessel made a direct course to London, beating her competitor, I believe. A part of the crew were Chinamen, and by the time they got past the Cape of Good Hope the whole crew were affected with the scurvy. To such an [1018] extent did this prevail that when the vessel anchored in London, out of her crew of twenty-six men, as I remember the numbers, all but seven had to be hoisted over the side because it was impossible for them to help themselves. Among them was my client.
After examining the question I brought suit against the captain of the ship, alleging that my client had had the scurvy because the vessel had not taken any sufficient supplies of fresh provisions and vegetables for a long voyage, and because the captain did not stop anywhere to get any. The suit was brought in the County of Middlesex, of course, where my client lived. The owner of the vessel, who stood at the head of the East India trade, took the suit in great dudgeon. He said he did not want any country lawyer — meaning me — to control the method of fitting out ships for the East India trade; that it was as good as it could be; that everything for their comfort and convenience was given to the crew, and that the case should be fought as far as he could go. He employed a lawyer, afterwards
 |
| Engraved from a life-size bust in General Butler's library. |
The whole East India trade and a large portion of the Boston merchants came as witnesses for the defence. I said to Mr. Choate that that defence would cost his client, I was certain, a good deal more than we. had claimed for damages, and that perhaps his client would like to make some settlement, for I confess that I was a little alarmed and scurvy hadn't been much in my line. I knew that Captain Cook had buried the members of his crew who had the scurvy in the earth at the Sandwich Islands to cure them, and that is all I knew, and I saw very extended and onerous study would be necessary in many parts of the case. Mr. Choate told me it was no use to speak of compromise. The East India trade was determined to make an example of this case so that its trade should never be interfered with again. “Very well, then,” I said, “, let her go; we will have an example for somebody.”
The trial of the case was commenced, and it lasted nineteen working days. It was tried from nine o'clock in the morning to four o'clock in the evening in the court, and the rest of the time I was occupied in preparing it. The whole of sanitary science and the whole of sanitary law, the narratives of navigators and the usages of navies, reports of parliamentary commissions and diaries of philanthropical investigators, ancient log-books and new treatises of maritime law, the testimony of mariners and the opinions of physicians, all were made tributary to the case. I exhibited to the jury a large map of the world, and taking the log of the ship in my hand, read its daily entries, and as I did so, I marked on the map the ship's course, showing plainly to the eyes of the jury that on four different occasions, while the crew were rotting with the scurvy, the ship passed within a few hours' sail of islands, renowned in all those seas for the abundance, the excellence, and the cheapness of their vegetables.
Mr. Choate contested every point with all his skill and eloquence. As I have said, the end of the daily session was only the beginning of my day's work; for there were new points to be investigated, other facts to be discovered, more witnesses to be hunted up. I rummaged libraries, pored over encyclopaedias and gazetteers, ferreted out old sailors, and went into court every morning with a mass of new material, and followed by a train of old doctors or old sailors to support a position shaken the day before. In the course [1020] of the trial, I had on the witness-stand nearly every eminent physician in Boston, and nearly every sea-captain and ship-owner. I studied five treatises on scurvy, one very old German one printed in Latin. 1 mention that because it contained an authority that I could find nowhere else, and when I brought it to the attention of one of the defendant's physicians on the cross-examination he admitted that he had never heard of it before, and more than that I had to read it to him as he could not read its language.
The case was submitted to the jury on a very able and impartial charge of the presiding justice, and we obtained a verdict of three thousand dollars, which was paid with interest and a very large amount of costs.
The education of this case was of immense value to me and I think to the country during the war. Three occasions presented themselves where I found the men under my command affected with scurvy. Not one of the doctors of their regiment had reported it to me, and I found out the fact myself only because I inspected my own hospitals and knew what I was looking for.
I have mentioned above that in preparing cases I have had to spend days in a machine shop, and I will state a case in which that happened, as an encouragement and an instruction to my young friends of the bar as to how I think a case should be prepared.
In November of the year 1852, it will be remembered, General Franklin Pierce of New Hampshire was elected President. In the December following, himself, his wife, and only son, a lad about ten years old, got on board the cars at Boston to go to their home at Concord, New Hampshire. When about twenty-four or twenty-five miles from Boston, and between two and three miles from the town of Andover, the train was derailed by the breaking of the forward axle of the tender on the left side. The train happened to be on a slight curve and along a high embankment built up largely of rubblestone. By the shock the cars were thrown from the track, and some of them went down the embankment. The President and his wife were substantially unhurt, but the son, who was standing up looking out of the window, was instantly killed. Some half dozen others were killed and many were wounded.
By the law of Massachusetts the administrator of a passenger killed by negligence or malfeasance of a railroad corporation in running [1021] a train could recover by indictment five thousand dollars penalty for the death. In the year following the accident, a son who was the administrator of his father, whose name I do not now remember, had an indictment found against the railroad for the death of the father upon the train. The negligence relied on in the case was that the axle, which broke at the journal,--that is, at the line inside of the box in which the axle runs, and between it and the wheel,--had been cracked for a very long time. The crack had opened clear around the axle, which was two and one half inches in diameter, and the wheel had been wabbling backward and forward on that crack until the faces of the iron in the axle had all been worn and pointed, yet not absolutely smooth. A portion a little less than an inch in diameter in the centre of the axle alone held it at the moment when it broke.
The condition in which the axle was found was the fact relied upon by the prosecution to show that the crack had been there a very long time; and at first sight without careful thought it would seem almost conclusive. If the crack had been there for the time supposed to be necessary to give the axle that appearance on the broken end, it seemed clearly negligence on the part of the railroad not to have discovered it by some means or tests.
I had nothing to do with the case, pro or con, but one morning I received a note from President Pierce, who was in Washington, saying that he wished that I would take part in the case and defend the road. He did not himself believe that the road was in any way to blame, but believed it was a pure accident, and he did not desire to have any measures taken against the road in behalf of his son's estate. More than that, Mrs. Pierce believed it was a pure accident, and wanted to have it shown as such, because she believed that it was a visitation of special Providence to take away from the President his son that he might better be prepared to devote himself wholly to the duties of his great office.
I had known General Pierce from my youth up; I had tried cases with him and I had tried cases against him, and I felt highly complimented at his selection of me to go into the case. I reverenced the deep piety of Mrs. Pierce, who was one of the most devout women I ever knew, although I did not quite concur with her logic, because I could not see why Divine Providence might not as well work [1022] through the means of a drunken brakeman, which would be negligence of the corporation, as from a pure accident.
I replied to the President that if he wished it I would take hold and do what I could to demonstrate that it was a pure accident, but there was a difficulty in the way. I had brought and tried a great many more suits against that corporation than I had defended, and I did not see how I was to get retained in the case.
He wrote me back thanking me and saying that he would attend to that. The next thing that happened was that the president of the corporation called at my office, saying that he wanted to retain me in the case, and wanted me to take every pains to defend the corporation. Meantime I had looked in the report of the legal examiner whose duty it was to examine into such questions, and I had thought out a little my course of defence.
“ Then, Mr. President,” I said, “I shall want in the preparation of your defence to have access to your repair shop, and to have everything done there that I desire.”
“ Certainly,” said he, and wrote an order to that effect.
As soon as I had opportunity I went up to the repair shop and took a look at the broken axle. I saw that it was of fine iron or it would not have held as long as it did. I examined particularly the man detailed to inspect axles by tapping them with a hammer, that I might learn whether he knew that he tapped it that day before the train went out, and whether he detected anything, by the sound, of the presence of a crack. He assured me with great positiveness that he had struck the axle twice, but found no signs of a crack. I did not believe much in that, because, in the first place, I doubted if it would show by the sound whether it was cracked, and I also thought that he would say what he did say whether he had heard it or not.
I then caused an axle of the same size and of the same iron to be broken square off by hydraulic pressure, the ends showing the same grain of iron as was shown in the centre of the one broken in the accident. I had a piece of this newly broken axle put solidly in a vise. I then asked a skilled mechanic to take a fourteen-pound hammer used for riveting large rivets, and with such blows as he would use in heading a rivet, keeping an account of them accurately, to make the broken end of this axle as nearly an exact fac-simile as [1023] possible of the one broken under the tender. I stood over him while he did it, keeping the account myself of the number of blows.
Next, I interviewed the engineer and fireman of the train, and asked them if anything to attract their attention had happened to the train after it left Boston. They said there had not until they got to Andover, but passing the street at Andover they struck a very severe blow on a frog, which afterwards was found to have been misplaced, and although they slowed up the speed of the train they could see no evil effects from this, and therefore went on until the time of the accident, when suddenly the axle broke and the train was derailed.
They said on the next morning they went down to this spot where they felt the shock and found that the frog was very much bruised by something having struck it, and upon inquiry they had learned that a heavy load of stone had passed over the upper portion of the frog and displaced it so as to push the end of it away from the line of the track on which the train was running at the time of the accident.
I had a very careful measurement made of the distance between the frog and the place of the derailment of the train. The fireman said that he was on the tender shovelling coal at the time of the blow, and that apparently it was very much heavier on the tender than it was to the engine. Assuming that the axle was cracked back there at the frog, and that the crack opened and closed at least once with every revolution of the wheel, by taking the circumference of the wheel I was able to calculate that the crack would open and close more times in running the distance than it took blows of the hammer to smooth the end of the axle experimented upon, provided the weight of the tender was as effective only as the blow of the hammer.
The prosecution evidently had not reflected upon these circumstances, if they knew of them. They put on the stand a very honest, reliable and competent railroad machinist, from the Providence Railroad repair shop, I think.
They showed him the axle and asked him to explain to the jury how it broke. He said in substance that a crack had been started around the axle in the line made by the tool in turning out the journal; that after it was cracked, as the wheel revolved, the pressure was brought upon every part of that crack as the surfaces separated by the crack were brought together; and that pressure would tend to wear the [1024] surface of the iron in the crack until it was given the appearance shown in the axle; and that the crack went on opening and closing and operating as a hammer would operate until it got so far enough down in the axle that the iron that was left was not strong enough to sustain the weight of the tender on the axle. He supposed that it broke at the moment that it did because of some shock given in turning the curve.
He was asked how far the wheel would have to run in order to have the broken face worn down as much as it was. He said he had never seen any experiment from which to judge, but as it must have started at first very slowly, he should think it must have taken a very great number of revolutions of the wheel. He thought that it might have run for three months to make the axle look as it was; how much more he could not say, and it might be considerably less, but he thought not much.
Upon cross-examination I presented him my fac-simile of the axle and asked him what difference, if any, he could see between it and the one broken in the accident. He looked at them very carefully and said that he saw no special difference. I asked him if my fac-simile could be made by ordinary blows with a riveting hammer of fourteen pounds weight. He said he thought it might.
“ Well,” said I, “would the weight of the tender, as the wheel revolved, make an impact as heavy as an ordinary blow of such a hammer?”
“ When the crack first started,” he said, “it might not, but subsequently and especially toward the last it would be very much heavier, because the crack then would have got so far open as to give an actual blow when it closed.”
“ Here,” I said, “is another piece of axle broken short off. Will you, if I will pay you for your time and trouble as I ought to, after you leave the stand take this to a neighboring machine shop and put it in a vise, and see how long it will take you to make this last piece of axle resemble as nearly as possible the broken one of the tender?”
“Yes, if it won't take me too long,” said he, very good-naturedly.
“I hope it won't keep you too long,” I said, “but I want you to keep an account of the blows that you strike, and also keep an account of the time, and in the morning I will finish your cross-examination.” [1025]
When he came in in the morning he brought in his work and he had made rather a better fac-simile than mine. I asked him the number of blows used, which he gave me, and which I now forget.
“ Now,” said I, “suppose that by some sudden jar this crack had been started in the axle under the tender and had gone on until it broke, would not the broken end look exactly as it does now and as the one you have made with the hammer?”
He said he did not see why it would not.
“First the circumference of the wheel we know as so much,” I continued. “Now, the cracked surface of the axle would receive a blow at least every time the wheel revolved in running the distance of two and one half miles. Won't you take your pencil and calculate and tell us whether it would not receive more blows in going that distance than it took you to smooth down the end of the axle which I gave you?”
He started back after he got through his calculation, saying: “I never thought of this before; I shall have to take back my answer about how long it would take to put
 |
| Engraved from a life-size bust in General Butler's library. |
I then put on my own testimony upon the matter and showed that some quarter less blows were used in preparing the end of the other axle than the broken axle received in going the distance from the frog in Andover to where the derailment took place. I then put on the testimony of my engineer and fireman, who gave their evidence in a very straightforward, honest manner. I also put on my man who said he tapped the wheels, but after he left the stand I told the [1026] jury I was bound to call him but I didn't place any special reliance on his testimony, because he was under great temptation to tell the story as he did to save himself from harm, although I believe he honestly thought so. It went to the jury, who gave us a verdict.
There were no other cases drawn out of this derailment tried to my knowledge. I am happy to say that the verdict of the jury entirely confirmed Mrs. Pierce in her belief, and as she thanked me more than once for my exertion in ferreting out the matter I certainly did not enter into any discussion as to her faith.
I have spoken of defending men when on trial for their lives. It is never a profitable thing to do, and always an unpleasant thing, because involving great responsibility. One sometimes does not get as payment even the gratitude of his client when he is successful. I have a curious incident of that:
A man of about twenty-six or twenty-seven years of age broke into a small way station or depot of the Fitchburg railroad in Waltham,Mass., but did not find anything there which he chose to take away. He was seen in the act of departing on the train and went up the road a few miles to Lincoln. A telegram was sent after him with directions for the depot master, who was also a constable, to arrest him for breaking into a railroad depot. The constable identified him, and when the train started took him out of the train which went on, leaving at the depot only the constable and two boys of eight or nine years of age and the prisoner. The constable was about closing up his depot and said to the man, whose name was Carey: “I have got to take you back to Waltham, but it is dinner-time, and if you will go into the house with me,” --which was a little distance from the depot--“we will have some dinner before we go.”
He had hardly uttered the words when Carey jumped through the window on the opposite side of the door and ran away. The constable immediately ran after him, followed by the boys. Carey, not knowing the ground, ran for the woods, and ran directly into a cul de sac made by the Stony Brook River in its meanderings there. It was too wide for him to cross readily, and Carey was brought to bay. He turned upon the constable and produced a revolver, saying: “If you come near me I will shoot you.”
No braver man ever lived than that constable Heywood. He jumped for his prisoner, and Carey fired and shot him directly through the [1027] heart, and he fell dead. The boys immediately ran away and gave the alarm, and Carey disappeared in the bushes. The hue and cry was raised, and the culprit, having gone quite a distance through the woods, came out where there were three or four of his pursuers, who immediately laid hold of him. A thing that showed the steadiness of his nerve was that he then had in his hand a gray squirrel which he had shot with his pistol while he was being pursued. The evidence of the boys was plenary, and he was committed to jail for murder.
Lincoln is about six miles from Concord. I was at Concord attending the court. The constable was a Democratic friend of mine who always used to go to the convention as a delegate, and I always sent him the political documents of the campaign to be distributed. Hearing of his death, and not being engaged on the day of the funeral, I took my horse and rode over to Lincoln to attend his funeral, with as much grief as I would attend the funeral of any dear friend.
In the February term Carey was indicted for murder, and in the April term of the Supreme Court at Lowell he was arraigned and pleaded not guilty.
Now, there is a custom which has become a law that where a prisoner who is to be tried for his life has no counsel the court must appoint someone to defend the case. I had never seen the prisoner, and knew nothing about him, but when the chief justice asked him: “Carey, have you any counsel?” he said: “I should like to have Mr. Butler.”
The horror of defending the murderer of my friend quite overcame me. I said:--
“I would like to ask your Honor to appoint other counsel. Your Honor knows I have been engaged to defend quite a number of men on trial for their lives and it is a thankless and profitless task.”
My using the word “profitless” was very unfortunate, because the chief justice thought that I was making the question a matter of fees, and he replied with some severity:--
“ Mr. Butler, this is a duty which, when the court assigns a member of the bar, he cannot very well decline. Whom shall I appoint to assist you?” I saw that I was in for it and asked for a member of the bar to aid me. He was duly assigned. I think it was the [1028] Hon. Benjamin Dean, of Boston, but I may be mistaken. We examined our client's apparently desperate case. I don't know whether I or Mr. Dean first suggested the point, but we came to the conclusion that we would raise the following question:--
Our statutes for burglary, breaking and entering, include almost every description of building save a depot or railroad station house, and the evidence was that he broke into a depot in Waltham. If that was not within the statute, it was a breaking and entering not a felony, for which the constable could not arrest him without a warrant, and therefore the constable's proceedings were wholly illegal. The resisting of illegal arrest, and the defending of himself against it even with a pistol, and with death ensuing, was not murder, and the man must be convicted of manslaughter only.
Murder trials were before at least three justices of the Supreme Court at that time, and on the trial we took the above-mentioned point. The law perhaps was clear enough on the question of what the building was. The question was argued with great ability for the prosecution by the attorney-general, and I replied with a great deal of earnestness in defence of my point of law. The court took it into consideration and spent three hours in consultation, and at last gave an opinion two to one sustaining my point. Thereupon Carey was convicted of manslaughter and sentenced to twenty years in the State prison, the longest term for which the law allowed him to be sentenced. After he was sentenced I stepped back to the dock and said: “Carey, you have had a narrow escape; I think you may feel obliged for that point of law.”
“No; I wish I had been sentenced to be hanged.”
“I wish you had let me know your preference a few hours ago,” I said, “and I would have accommodated you.” And that was all the fee I got for trying this case except $2.50 which the law paid to me.
That was not all. Cambridge is perhaps twelve miles distant from Lincoln, which is a nice little town, at that time not having a doctor, a pauper, or a lawyer in it. The constable, I believe, had also been tax collector and held several other local offices, for he was one of the most popular of their townsmen. The people of the town had many of them turned out to see his murderer convicted, and their disgust was infinite when they saw his fast friend of years, and a man [1029] who had attended his funeral, earnestly and zealously defending his murderer's life, and at last saving it. They came to the determination that a lawyer so utterly lost to every sense of decency and proper conduct, hardly deserving to live, should never have a vote in that town if he ever ran for office; and they with vigor carried out that determination at the next election..
That was a favorite method in Massachusetts of dealing with a lawyer who did not carry on his business to suit a community, and this I will illustrate by another case:--
The town of Malden, a very excellent town in which very fine people lived, and in which I was reasonably popular, got its first fire engine. Then they had a fire and the engine squirted. The boys had never seen an engine squirt. Then they had cakes and coffee, which were distributed freely to the firemen and boys. Soon afterwards they had another fire in which rather a worthless barn was burned, and the engine turned out again and squirted some more, and more cakes and coffee were distributed. Then shortly after another barn took fire, and there were more cakes and coffee. By that time the good farmers of Malden came to the conclusion that there was a “fire bug” in their midst who was going to burn down everything, and the town offered $300 or $500 reward to anybody who would catch the “fire bug.”
One of the constables of the town had observed that three of the finest boys in the town were always together at the fires, and he came to the conclusion that they had something to do with the fires, or knew something about them. So he went to them separately and told each one of them that the other two had confessed to him that they had started the fires, and that if the one present then did not confess he would be sent to prison, but if he would confess he should have a part of the reward. And when he had got that confession he proceeded to have the boys arrested for arson in the night-time, and had such large bail fixed that it would be very difficult to get. And then he went before the grand jury and told his story of what they said to him. The boys were in prison, and of course there were three weeping fathers and mothers in my office the next day.
I heard them and told the fathers to go down to the jail and tell their boys not to speak a word to anybody about what they had done, [1030] no matter what was said or done by anyone; that I was their counsel, and if they wanted to speak to any person they could speak to me. In a day from that time I saw them.
In the course of a few weeks they were brought to Lowell for trial, and pretty much all Malden came up to see the “fire bugs” dealt with. I moved for separate trials and got them. I had learned exactly all that the constable had told the boys. They had told me truly and the only danger was that the constable would deny telling what he did tell them.
The constable was put on the stand and he glorified himself slightly in describing his efforts to arrest the boys. Then he was asked what the boy on trial said to him.
“Stop a moment, Mr. Constable,” said I; “may it please your Honor, I want to find out first what he said to the boys, because perhaps it won't be of any consequence what they said to him. Now,” said I, “Mr. Constable, I want you to tell exactly what you said to the boys. I know from them, and you must tell the truth about it, because there are three of them to one. Didn't you tell the boys each that the others had confessed in these words?” --giving the words.
“Yes, sir.”
“And didn't you tell my client at the bar that if he would confess he should have a part of the $500, and wasn't that before he confessed anything?”
“Yes, sir.”
“Well,” I said, “may it please your Honor, I think we won't hear anything from this man of what the boys said to him, because any confession obtained by an officer by an inducement cannot be heard in a court of justice. Mr. District Attorney, you had better call your next witness.”
The court sustained my point. The attorney hadn't any next witness, and that boy went free, and there was no other testimony against the other two boys, and they all went home that evening, and so did the rest of the inhabitants of Malden. But that night they hanged the poor lawyer in effigy.
I am glad to say that Malden I was not in my district then, so that it didn't alter the votes. The next time I was a candidate, and afterwards when I was running for office, Malden was largely on [1031] my side. I am certain the three boys voted for me every time, whatever the constable may have done.
So that it will be seen that a lawyer's life is not free from thorns, and that sharp points of law even in favor of the greatest criminals are not to be despised or disregarded.
I think I ought to set out here the facts of a story which has been in circulation in the newspapers for quite fifty years, and about the only one that was always told in my favor that was so circulated. I do this in order to show that there is not one word of truth in it. I
 |
| Views at General Butler's home at Lowell. Sleeping Apartment. |
We had a rule in our mills in Lowell, and a very proper one, among the eight or ten incorporated manufactories, that wages should be paid the last Saturday in every month. This rule was religiously kept until the law interfered, requiring payments weekly. [1032]
Another rule was that whenever a person was discharged from the service by the authority of the corporation he was to be paid. A third was that operatives discharging themselves were not to be paid until the pay-day next following. The rule, although it appears harsh at first, was quite reasonable because it prevented the necessity of keeping a quantity of money exposed to loss or fire. Very many of the operatives left work and were refused their pay. They went to a lawyer to have a suit brought for it, the writ to be returnable a fortnight later. But by that time the pay-day would probably come round, and it was not always quite certain whether any recovery could be had.
With the officers of some of the mills I was quite intimate and on friendly terms. Others thought it their political duty to be on unfriendly terms. I had an arrangement with some of the mills by which, when I was applied to in such cases, I was to send a note up to the paymaster to ascertain what was due and he would send the information, and I would pay the amount over to my client, and send to the paymaster for the amount at pay-day. The only loss to anybody was the diminution of my bank account for fifteen or twenty days for such sums, but I would much rather endure that than be bothered with the bringing of suits.
One morning a snappy-eyed old maid from Vermont came into my office and sat herself down and said: “Are you lawyer Butler?”
“Yes, madam.”
“I have been to work in the----corporation for five years, and I wanted to go home, and so I told my overseer that I was going home, and asked for my pay. He said I must work out my notice [which was a regulation for two weeks work] or wait until payday. I said I would not do either. I know exactly what my pay is because I work by the piece. Now, I want you to sue the corporation for my pay for I want to go home to-morrow.”
“Well, my good woman,” said I, “I could not by suit get it by to-morrow, but I will see what I can do for you.” I turned to my desk, wrote a little note to the paymaster, handed it to my boy, and he went out.
She resumed the conversation saying: “Yes, you can get it if you will attach the great wheel and stop the mill.”
Now that was a proceeding that I had never heard of. I said laughingly:-- [1033]
“That would be a great thing to do for so little, don't you think so?”
“Well,” said she, “they ought to pay me, and I will have my pay.”
“Well,” I said, “you come back here in the course of an hour, and I will see what I can do for you.”
Meanwhile the boy had returned with information of the amount that was due her, and that they would reserve it for me. Then, when my black-eyed friend came in, I said: “Well, I have got your money and made a receipt for it, and here it is.”
She said: “I knew you would if you would attach the great wheel. How much am I to pay you?”
“Oh,” I said, “nothing. I will look for my pay to the other side. You can go to Vermont to-morrow morning, if you wish to.”
She did go, and frequently told the story that I did attach the great wheel, which was a thing that could not be done by any legal legerdemain whatever, because the great wheel is a part of the real estate, and real estate can only be attached in Massachusetts by filing a paper in the county clerk's office. But the story has been going the rounds ever since.
I purposely omit all professional matters at present pending or lately decided, because I think it my duty not to use this means of dealing with professional subjects to the annoyance of living men or to the prejudice of matters now in the course of decision. It will be time enough to deal with such subjects when they are in a condition to be a matter of history.
 |
| Decorative Motif. |
