Chapter Xxxii

I have been for fifty years a member of another club called the Worcester Fire Society, some of whose members have had a remarkable relation to important events in the history of the country, of which the story will be worth recording. The club was founded in 1793, before the days of fire-engines, so that if the house of any of the members caught fire, his associates might come to the rescue with buckets and bags and bed-keys and other apparatus to put out the fire and save the property. But it long since became a mere social club. It is limited to thirty members.

The elder Levi Lincoln, Mr. Jefferson's intimate friend, confidential correspondent and Attorney-General in his Cabinet, organizer of the political movement which built up Mr. Jefferson's power in New England in the beginning of the last century, was not, I believe, a member of the Society himself. But his sons were, and many of his descendants and connections by marriage, certainly twelve or fifteen in all. When the office of Justice of the Supreme Court of the United States became vacant, by reason of the death of Mr. Justice William Cushing of Massachusetts, September 13, 1809, Levi Lincoln the elder was appointed, confirmed by the Senate and commissioned to fill the vacancy. Mr. Jefferson earnestly desired and urged his appointment. President Madison accompanied the offer of the office with a letter urging Mr. Lincoln to accept it in spite of a malady of the eyes from which he was suffering. Mr. Madison says he had got along very well as Attorney- General and he thinks he would find less inconvenience in discharging the duties of Judge. But Mr. Lincoln declined the office. He lived until 1820, retaining his health and vigor, except for the trouble with his eyes.

He was a very able man. He argued the case in which it was decided by the Supreme Court of Massachusetts that slavery was abolished in that State by the Constitution, in 1780.

Judge Story was appointed in his place. If Mr. Lincoln had accepted, it is likely that the great judicial fame of Judge Story would be lacking from American jurisprudence. Story would have devoted himself, probably, to professional or political life. At any rate he would not have been appointed to the Bench before 1820.

There can be no doubt that if Lincoln had accepted the seat upon the Bench, he would have been a thorn in the flesh of Marshall. He doubtless shared Mr. Jefferson's dislike for the great Chief Justice. The case of Dartmouth College _v._ Woodward was decided in 1819. There was in fact but one dissent, but any person who reads Shirley's book on the history of that case will be inclined to believe that without Judge Story Dartmouth College _v._ Woodward would not have been decided as it was.

More interesting and important is the relation, to Mr. Webster's seat in the Senate, of the second Levi Lincoln, son of him of whom I have just spoken, himself a member of the Worcester Club that has been referred to. He was Governor of Massachusetts, Judge of the Supreme Court of Massachusetts, and a Member of the National House of Representatives. He was elected Senator of the United States by one branch of the Massachusetts Legislature when the term of Elijah H. Mills expired, March 3, 1827. There can be no doubt that if he had consented he would also have been elected by the other house. Mr. Webster was chosen at the next Session. But before he was elected he wrote very strongly urging Mr. Lincoln to accept the office. He said in his letter dated May 22, 1827:

"I beg to say that I see no way in which the public good can be so well promoted as by your consenting to go to the Senate. This is my own clear and decided opinion; it is the opinion, equally clear and decided, of intelligent and patriotic friends here, and I am able to add that it is also the decided opinion of all those friends elsewhere, whose judgment in such matters we should naturally regard. I believe I may say, without violating confidence, that it is the wish, entertained with some earnestness, of our friends at Washington, that you should consent to be Mr. Mills's successor. I need hardly add after what I have said that this is my own wish."

Mr. Lincoln felt constrained to decline, although the office would doubtless have been very agreeable to him, by reason of some statements he had made when elected Governor that he should not be a candidate for the Senate. Mr. Lincoln might, without dishonor or even indelicacy, have accepted the office in spite of those utterances. It was quite clear that all the persons who might be supposed to have acted upon them, desired his election when the time came on. But he was a man of scrupulous honor and did not mean to leave any room for the imputation that he did not regard what is due to "consistency of character," to use his own phrase. Now if Mr. Lincoln would have accepted the office it is likely that he would have held it until his death in 1868. At any rate it is quite certain that he would have held it until the political revolution of 1851.

It is quite clear to me that the office of Senator was at Mr. Lincoln's command. Observe that this was in 1827, and was the election for the term of six years, ending March 3, 1833. That includes the period of Jackson's great contest with Nullification, when Mr. Webster, with all his power, came to Jackson's support. It includes the time of the Reply to Hayne, and the great debate with Calhoun.

Daniel Webster, I need not say, would have been a great figure anywhere. But if Mr. Lincoln had acted otherwise, there would have been absent from our history and literature Webster's Reply to Hayne, the support of Jackson in the day of Nullification, the debate with Calhoun including the speech, "The Constitution not a Compact between Sovereign States," and the powerful attack on Jackson's assertion of power in the removal of the deposits. The speech on the President's Protest, with the wonderful passage describing the power of England, would not have been made.

If the sentiment of Patriotism, and love of Liberty and Union are to be dominant in this Republic, we cannot measure the value of the influence of Daniel Webster and the speech in reply to Hayne. I am not sure that, without Mr. Webster's powerful championship of the side which prevailed, Mr. Calhoun's theory would not have become established. At any rate, it was the fortune of Daniel Webster that the doctrine of National Unity, whenever it has prevailed in the hearts of his countrymen, has been supported by his argument and clothed in his language.

Another incident of the same kind, not of like importance to those of which I have told, but still of a good deal of interest and importance, happened more lately. I had a good deal to do with it myself.

When President Hayes entered upon office, there were but three members of the Senate of either party who were supporters of his Administration. I was one of them. The other two were my colleague, Mr. Dawes, and Stanley Matthews of Ohio. President Hayes was, in my opinion, a very wise and able and upright man. It was an admirable Administration. He had a strong and excellent Cabinet. But his nomination had disappointed the ambitions of some very influential men in his own party, and the powerful factions of which they were the leaders and candidates. The opposing party had not only felt the usual disappointment in defeat, but denied the lawfulness of his election. So I was more familiar than would ordinarily have been likely to have been the case with all the councils of his Administration. The Secretary of State was my near kinsman, and the Attorney-General had been my law partner.

When the vacancy occurred in the English mission by the resignation of Mr. John Welsh, I very strongly urged the appointment of Mr. Lowell. Mr. Evarts was quite unwilling to select Mr. Lowell, and in deference to his wishes, President Hayes offered the place to several other persons, including myself. The offer was communicated to me by Mr. Evarts who was, at that time, Secretary of State. But there were many good reasons why I could not accept it. The offer was made to Governor Alexander H. Bullock, a member of the little society of which I have spoken. I was myself authorized by the President to communicate his desire to Governor Bullock. His answer, declining of account of the condition of his family, will be found in the life prefixed to the published volume of his speeches.

Now, if Governor Bullock had accepted the appointment, which was undoubtedly very attractive to him, what Mr. Lowell did in England would not have been done. He will doubtless go down in literature as a great poet. But it seems to me he is entitled to an equal rank among the prose writers of the country, and indeed among the prose writers of the English language of our time. His admirable address on Democracy, the delightful address as President of the Wordsworth Society, several estimates of the British poets, delivered by him on various occasions in England when he was Minister there, are among the very best examples of his work in prose.

It was upon Mr. Sherman's motion that the words, "Common Defence and General Welfare," which have played so important a part in the construction of the Constitution, were introduced into that instrument. He proposed to add to the taxing clause the words, "for the payment of said debts and for the defraying of expenses that shall be incurred for the defence and general welfare."

This proposition, according to Mr. Madison, was disagreed to as being unnecessary. It then obtained only the single vote of Connecticut. But three days afterward Mr. Sherman moved and obtained the appointment of a Committee, of which he was a member, to which this and several subjects were committed. That Committee reported the clause in the shape in which it now stands, and it was adopted unanimously.

Its adoption is an instance of Mr. Sherman's great tenacity, and his power to bring the body, of which he was a member, to his own way of thinking in the end, however unwilling in the beginning. This phrase had played not only an important but a decisive part in the great debate between a strict construction of the Constitution and the construction which has prevailed and made it the law of the being of a great National life.

This story is well told in Farrar's "Manual of the Constitution," pages 110, 309, 324.

Roger Minott Sherman, son of Roger Sherman's brother Josiah, was born in Woburn, Mass., May 22, 1773. Mr. Sherman was much attached to him and defrayed the cost of his education. He was an inmate of his uncle's family while a student at Yale College. He was graduated in the year 1792. He was one of the ablest lawyers and advocates New England ever produced, probably having no equal at the Bar of New England except Jeremiah Mason and Daniel Webster. I attended a dinner of the Alumni of Yale College some years ago. President Woolsey sat on one side of me, and Dr. Leonard Bacon on the other; and right opposite at the table was Rev. Dr. Atwater, then I believe of Princeton, but formerly Mr. Sherman's pastor in Fairfield. President Woolsey said that Roger Minott Sherman came nearer his conception of Cicero than any other person he ever heard speak. They used frequently to invite him to deliver public addresses at the College. But he never would accept the invitation. After refusal, the invitation would be renewed again after a few years with like result.

To the above estimate of Mr. Sherman, Dr. Bacon and Mr. Atwater agreed.

When I was in the Law School at Harvard, Professor Simon Greenleaf told the class in one of his lectures that he was once travelling through Connecticut in a carriage on a summer journey, and came to a town, I think Fairfield, which was the county seat. He stopped to get his dinner and rest his horses. While the horses were being fed he went into the court-house, intending to stay only a few minutes, and found Roger Minott Sherman arguing a case before the Supreme Court with Judge Gould on the other side. He was much impressed by Mr. Sherman's clear and powerful argument. Mr. Sherman and Judge Gould were engaged on opposite sides in nearly all the cases. Professor Greenleaf was so much interested by what he heard that he remained and attended court during the entire week. I do not remember his exact language, but he, in substance, gave an estimate of Mr. Sherman as a profound lawyer and able advocate, not less exalted than President Woolsey had given of him as an orator.

Some slight account of Roger Minott Sherman will be found in Goodrich's "Recollections."

Mr. Evarts once told me that there was an important controversy, involving the title to a valuable cargo, in which a lawyer in Hartford was on one side, and a member of the Bar of the city of New York on the other. The New York lawyer went to Hartford to negotiate about the case. The Hartford lawyer had obtained the opinion of Roger Minott Sherman for his client and held it in his hand during the conversation, labelled on the outside, "Opinion of Roger Minott Sherman," and moved it about under the eye of his opponent. The opinion was in fact that the Hartford man's client had no case. But the New York lawyer supposed that if the man had got Roger Minott Sherman's opinion, and seemed to set so much store upon the document, it was favorable to the party who had consulted him. He was much alarmed and settled the case on favorable terms to his antagonist.

Mr. Sherman was famous for his quickness of wit. A story went the rounds of the papers in my youth, which may or may not have any truth in it, but which I will record. It is said that he was once arguing a case against Nathan Smith, a very able but rather coarse lawyer. Mr. Smith had discussed the question of law with the subtilty for which he was distinguished. Mr. Sherman said to the court that he thought his brother Smith's metaphysics were out of place in that discussion; that he was not adverse to such refinement at a proper time, and would willingly, on a fit occasion, chop logic and split hairs with him. Smith pulled a hair out of his own head, and holding it up, said,--"Split that." Sherman replied, quick as lightning, "May it please your Honor, I didn't say bristles."

The following is the passage referred to from S. G. Goodrich's "Recollections of a Lifetime":

"Roger Minott Sherman was distinguished for acute logical powers and great elegance of diction,--words and sentences seemed to flow from his lips as if he were reading from the _Spectator._ He was a man of refined personal appearance and manners; tall, stooping a little in his walk; deliberate in his movements and speech, indicating circumspection, which was one of his characteristics. His countenance was pale and thoughtful, his eye remarkable for a keen penetrating expression. Though a man of grave general aspect, he was not destitute of humor. He was once travelling in western Virginia, and stopping at a small tavern, was beset with questions by the landlord, as to where he came from, whither he was going, etc. At last said Mr. Sherman, 'Sit down, sir, and I will tell you all about it.' The landlord sat down. 'Sir,' said he, 'I am from the Blue Light State of Connecticut.' The landlord stared. 'I am a deacon in a Calvinistic church.' The landlord was evidently shocked. 'I was a member of the Hartford Convention.' This was too much for the democratic nerves of the landlord; he speedily departed, and left his lodger to himself."

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[Title page] AUTOBIOGRAPHY OF SEVENTY YEARS

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