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HARVEY'S REMINISCENCES OF DANIEL WEBSTER.
THIS volume, by a life-long, trusted and familiar THIS friend of Daniel Webster, presents the great man in some new lights and teems with anecdotes, most of which have now found their way into print for the first time. Despite some trivialities and some undue partialities, we think the result of the book will be to elevate Webster's character as a man. His repute as a lawyer and statesman could scarcely be enhanced, and Mr. Harvey therefore wisely deals chiefly with the private side of his character. He gives us many conversations with Webster which bear on themselves the impress of faithful narration, and he presents him to us in his family and among his friends and contemporaries, in a microscopic way, which sheds vastly more light upon his real character than volumes of eulogy or generalization. Perhaps we cannot do better than to run through this amusing volume for our readers, and give them a general idea of its scope.
Some of the anecdotes about Daniel's boyhood and youth are quite new, and were derived from his own lips. His father was a poor man, as we have always known; but his account of the poverty of some of their New Hampshire neighbors seems almost incredible. Thus, one neighbor whom Daniel visited could offer him no better fare than a bundle of green grass fried in hog's lard; "but," said Mr. Webster emphatically, "it was not so bad after all. They fried up a great platter of it, and I made my supper and breakfast off it." This was the man who, on Daniel's graduating, advised him as to a choice of a profession. He said: "As for bein' a minister, I would never think of doin' that; they never get paid any thing. Doctorin' is a miserable profession; they live upon other people's ailin's, are up nights and have no peace. And as for bein' a lawyer, I would never propose that to anybody." The end of it was, he advised Daniel to study conjuring, so he could tell a man where his lost cow was, for people "would think nothin' of paying three or four dollars to a man like that, so as to find their property;" and as there was no conjurer within a hundred miles, he thought there was a good opening. Once, when Daniel was at home in the winter on a vacation, his mother gave him a new suit of clothes, spun, woven and dyed by her own hands. On his return to college in a sleigh, arrayed in his new suit, a bridge having been carried away, he was obliged to ford the stream, and in the transit he sank to his arm-pits in the freezing water. He managed with great ado to retain the breath of life till he reached a house, where he went to bed while his clothes thawed and dried; but the contents of his mother's dye-pot were left on his body instead of his clothes. Even this process probably could scarcely make him blacker than nature had
made him. Daniel helped his favorite brother Ezekiel through college with money which he earned in teaching, and probably the greatest trial of his life was to decline the lucrative office of clerk of Merrimac county, procured for him by his father, and the income of which would have made himself and his father's family comparatively affluent, because Governor Gore told him that his destiny was to make opinions for others to record.
The most striking description of Webster's personal appearance which we have ever met is contained in this volume, extracted from the New York Tribune newspaper, and representing him in one of his first causes. "He was a black, raven-haired fellow, with an eye as black as death and as heavy as a lion's that same heavy look, not sleepy, but as if he didn't care about any thing that was going on about him, or any thing anywhere else. He didn't look as if he was thinking about any thing, but as if he would think like a hurricane if he once got waked up to it. They say the lion looks so when he is quiet. It wasn't an empty look this, of Webster's, but one that didn't seem to see any thing going on worth his while." In this connection we must not omit an anecdote of General Stark, of Bennington fame. Daniel was traveling on horseback from Portsmouth to court at Concord, and stopped over night at Hooksett, now Manchester. The old general was at the tavern, and, Yankee fashion, questioned Daniel and elicited the confession that he was a son of Captain Ebenezer Webster, of Salisbury. Thereupon the husband of Molly Stark exclaimed: "Are you a son of old Captain Eb? Let me see you (turning him round). Why, I declare! Well, I am inclined to think you may be. In the war we could not tell whether Captain Webster's face was a natural color or blackened by powder. You must be his son, for you are a cursed sight blacker than he was!"
Among the anecdotes illustrating Webster's powers in court we were most struck by one relative to the case of Brown v. Bramble. The plaintiff held Bramble's annuity bond for one hundred dollars for life. Bramble was in the habit of indorsing his own payments on it, and having Brown subscribe his mark, for Brown could neither read nor write. Finally, on paying one year's due, Bramble indorsed one thousand dollars instead of one hundred dollars, and added "in full consideration of, and canceling this bond," which Brown unsuspectingly signed. Webster brought suit for Brown after the fraud was discovered. During the trial one of the plaintiff's friends whispered in Webster's ear that he had just seen Bramble's lawyer in the entry, talking with one Lovejoy and giving him a paper. Lovejoy was one of the omnipresent and convenient kind of witnesses who abounded before parties were witnesses in their own behalf. He was called on by Bramble and swore that Brown told him he had re
ceived a thousand dollars from Bramble in full of the bond. When it came Webster's turn, he marched outside of the bar to the witness-stand. He tells the rest of the story himself: "Sir," I exclaimed, 'give me the paper from which you are testifying.' In an instant he pulled it out of his pocket; but before he had it quite out, he hesitated and attempted to put it back. I seized it in triumph. There was his testimony in Bramble's handwriting!" As may be imagined, that was the end of Bramble's case. As an offset to this, Mr. Harvey relates a story showing how a witness once was too acute for Webster. Webster was cross-examining Col. Winchester, who had sworn that, in his opinion, a certain signature was a forgery, and was pressing him for the reason for his opinion, to which the witness replied: "I can't give a reason, but if you will allow me to make an illustration, I will do so. Suppose some distinguished man at home or abroad should be seen walking on 'change; suppose you were there at high 'change. It would be very natural to point out Daniel Webster and say, 'There goes the defender of the constitution.' Everybody would mark him, and nobody could mistake his identity. They would always know him afterward. But if, in the afternoon, some man brought me a head, and two legs, and two arms on a platter, and asked me to identify them separately as belonging to Daniel Webster, I could not swear to them. In the same way there is something about this signature that does not look genuine, but I could not swear to the particulars."
he told him that he had openly and purposely insulted him in court, and that he must in the same manner apologize the next morning, "or else," said he, "either you or I will go out of this room in a different condition from that in which we entered it." Pinkney trembled, parleyed and evaded, but it was useless; and finally admitting that he did intend to "bluff" him, asked his pardon and promised to make the amende honorable in open court. Webster let him out, and he kept his promise faithfully; and after that, said Webster, "there was no man who treated me with so much respect and deference as Mr. William Pinkney."
We have before remarked on Webster's unconscious imitation of Milton in his rhetoric, especially exemplified in the peroration of his reply to Hayne. Mr. Harvey reminds us of another instance. In his letter to the common council of Boston, when they had refused him Faneuil Hall, because they had recently denied it to Wendell Phillips, he says: "I shall defer my visit to Faneuil Hall, the cradle of American liberty, until its doors shall fly open on golden hinges to lovers of union as well as lovers of liberty." This is an unmistakable reminiscence of Milton's description of the opening of the gates of heaven, "harmonious sound, on golden hinges moving," but we do not believe that Milton would have been guilty of talking about the doors of a cradle.
In connection with Webster's fondness for sports, Mr. Harvey tells a story which we have seen before, but which is now authenticated. Webster had been
a man to ferry him across a river. His Charon declined the proffered payment, but, after some hesitation, remarked: "This is Daniel Webster, I believe.' 'That is my name,' replied the sportsman. 'Well, now,' said the farmer, 'I am told that you can make from three to five dollars a day, pleadin' cases up in Boston.' Mr. Webster replied that he was sometimes so fortunate as to receive that amount for his services. Well, now,' returned the rustic, it seems to me, I declare, if I could get as much in the city, pleadin' law cases, I would not be a-wadin' over these marshes this hot weather, shootin' little birds.'"
A very curious anecdote was told by Webster in connection with the Dartmouth College case. Web-shooting in the marshes, at Marshfield, and employed ster advised the president that, as the college was originally endowed to civilize and instruct the Indians, the point might be taken that its charter was forfeited, because no Indian had been attached to the college for a long period, and that it would be well to introduce a little of the aboriginal element. So the president went to Canada and coaxed three Indians as far as the west bank of the Connecticut river, opposite the college, and, after some delay, got them into a boat to cross the stream, when the Indians, espying the walls of the college buildings on the further shore, became alarmed and probably suspicious of imprisonment, and one of them, giving a whoop, plunged into the river, and the others followed. So far as Dartmouth College is concerned, the "poor Indian" continued ever afterward to have an "untutored mind."
Webster was a man of moral and physical courage. He never would fight a duel, and he never went armed. Without boasting he related to Harvey how he treated Pinkney, the great leader of the Federal bar, who put a marked and public slight upon him in the Supreme Court of the United States, designing at the outset to crush a dangerous rival. At the adjournment he asked Pinkney into an ante-room alone, and locking the door and pocketing the key,
Mr. Harvey's attempts to make a wit of Webster are a failure. Webster liked and told good stories, and had a good sense of the humorous and the ridiculous, but he was not a wit. The examples given by his biographer remind us of the wit attributed to the English bench, most of which is decidedly elephantine. There is really none of them which seems to us worth quoting. But of Webster's playfulness, tenderness and good-fellowship Mr. Harvey gives us plenty of evidence. Of the vast depth of his affections he also gives us some most touching proofs. His nature on all sides-passions affections and comprehension. was a colossal one
ing, simple and complete acceptance of the truths of the Christian religion. Webster was too great a man not to have an intellectual assurance of these great facts. He was cheerful, liberal and tolerant in his religious opinions, but he clung to them fervently to the last. An intimate friend once asked him, in the presence of a score of others, what was the most important thought that ever occupied his mind? After scanning the group a moment to make sure that no strange or unfriendly auditor was present, he responded, "my individual responsibility to God;" and then he spoke to them on this subject, as only he could speak, for some moments. We know it is not unfrequently the case that lawyers become so wise in their own conceit as to deny the higher allegiance and the evidence on which the Christian religion rests, but we are not among them. If any lawyer thinks himself wiser on these
We now come to speak of two matters wherein Mr. Harvey gives us new light as to Webster's character. If any idea of Webster has been unanimously accepted, it is, that he was always careless about his debts, and very much addicted to indulgence in intoxicating drinks. On these two points his biographer surprises us. In regard to the first he convinces us that Webster has been misunderstood. It must be remembered that, for the sake of the public, Webster consented to comparative poverty. Being a poor man, he gave up a law practice which would have produced him $25,000 annually, for a senator's or secretary's meagre salary, and incurred the heavy outlay inseparable from such positions. It has been popularly believed that State street came to his relief on several occasions of necessity, but Mr. Harvey shows that, on one occasion at least, he indignantly spurned the proffer of such assistance. In his last years, and while in fee-points than Daniel Webster, we cannot sympathize ble health, he consented to argue the Goodyear case for a fee of $15,000, solely for the sake of paying some debts, and in his last days he wished he could get two more such fees, so that he could die out of debt. On the other point we are not so clear. Mr. Harvey says Webster was a temperate man, and that his intellect was never obscured by alcoholic stimulants. It will be difficult to make any one, who saw Webster much for the last twenty-ive years of his life, believe this. His appearance was much against this theory, his contemporaneous reputation was opposed to it, and it was commonly believed and asserted that, on minor public occasions, he was not infrequently a sufferer from over-indulgence. We think it is a mistake to try to make a saint of Webster. Great, grand, glorious man that he was, he had some of the failings of commoner clay. Otherwise he would truly have been super-human.
Another aspect of the man in which Mr. Harvey presents him is that of peace-maker. That certainly is a novel role for Daniel Webster, according to popular traditions, but Mr. Harvey proves his case most indubitably. It would be easy to believe that Webster was magnanimous; indeed, such was his reputation; but that he was so forgiving of injuries to himself, and so anxious to promote peace among others, we were not hitherto prepared to credit. In all his life there are no passages that will do him greater credit than his successful attempt to heal the breach between Benton and John Wilson, and his unavailing endeavors to reconcile Benton with Calhoun. As narrated by Mr. Harvey, these are among the most touching incidents in biography. They disclose a far-down sweetness, goodness and simplicity that a thousand times atone for unruly passions of the flesh, and bring forcibly to mind the Saviour's declaration, "Blessed are the peacemakers, for they shall be called the children of God."
This brings us, in closing, to say that Mr. Harvey's book abounds in proofs of Webster's unassum
with him. If there are any who believe that Christ was an impostor, that God is blind chance, or a law without a legislator, and that man, instead of being created in the image of God and a little lower than the angels, is nothing but an ape with modern improvements, let him read Daniel Webster on theology. Perhaps these matters are a little obiter, but really we think a little theology now and then will not hurt our readers.
We must now reluctantly leave this great man, and we cannot better do it than in the closing words of this biographer: "The spot where Daniel Webster reposes is upon elevated land, and overlooks the sea, his mammoth farm, the First Parish Church, and most of the town of Marshfield, wide-spreading marshes, forests remote and near, the tranquil river and glistening brooks. On a pleasant day the sands of Cape Cod can be descried from it, thirty miles directly to the east, where the Pilgrims first moored their ship. The spot is perfectly retired and quiet, nothing being usually heard but the solemn dirge of the ocean, and the answering sighs of the winds. It is the spot of all others for his resting-place.”
TAXATION OF ASSIGNEES IN BANKRUPTCY.
Re MITCHELL, ex parte SHERWIN.
HE city of Boston assessed a tax of $1,553.21 upon the assignees of Mitchell, Green & Stevens for the personal estate of the bankrupts in their possession, or under their control, on the 1st of May, 1876, the beginning of the fiscal year. The assignees denied the right of the city to assess them, and the case was submitted to the court upon agreed facts, under a petition by the collector of the city, to order the assignees to draw their warrant for the amount of the tax. The assignees had made return of the property to the assess
ors under protest, so that there was no dispute about the quality or amount. It consisted in part of money, and, in a larger part, of a stock of goods. The stock was sold by the assignees on the 3d of May, in pursu ance of an arrangement made before the first day of the month, and the proceeds were divided among the creditors at once, long before the assessment was actually made, or notice given that it would be made; but there was enough money of the estate remaining to pay the tax, if it is properly and legally assessed upon them.
E. P. Nettleton, for the petitioner.
LOWELL, J. The first ground taken by the assignees is, that they are officers of the court; that the funds in their hands are in the custody of the law, and, therefore, not to be disturbed or interfered with by any action on behalf of the State. An able opinion to this purport has been given by one of the registers. Re Booth, 14 N. B. R. 232. I cannot subscribe to that opinion. I can see no interference or obstruction of the court, or of the law in taxing to the owner thereof, any fund that may happen to be in whole or partly in the registry of the court, or under its direction, as was the case with the money here, provided there is no attempt to affix upon it a lien, or in some way to disturb the actual custody of the fund. Such an assessment is merely an official declaration that the owner of the fund should pay his share of the public burdens. I do not know why a ship in the hands of the marshal should escape taxation to the owner, though, undoubtedly, it will be free from levy or seizure as long as it remains in his official possession. If the State undertook to tax an assignee in bankruptcy as such, that is, to tax his office and franchise, his right to exercise a function under the laws of the United States, or in any mode to discriminate against an assignee, or against the estate of a bankrupt, very different considerations might arise.
It is said the assignee is an officer of the court; and so he is, in a certain sense, and so is every attorney who practices in the court; and this will protect them from taxation as such officers, but not necessarily in respect to funds which they are to administer for private persons, though their administration should be under the control of the court. The law of Massachusetts for levying taxes does not undertake to act upon personal property in rem, but merely upon the owner. An assignee is an officer of court, and much more, as I shall have occasion to show.
2. I have examined with great care the law of taxation. (Gen. Stats., ch., 2, passim.) I should be glad to find there an exemption of assignees who had so promptly and faithfully executed their trust that, while they were appointed in April, they had realized and distributed a great part of the assets long before any assessment was actually made upon them; but I have searched in vain. Section two provides that all property, real and personal, of the inhabitants of the State, shall be taxed unless expressly exempted. Section five provides what property shall be exempted, and does not mention bankrupts or insolvents, or their estates or assignees.
Section ten provides that all personal estate shall be assessed to the owner in the city or town of which he shall be an inhabitant on the first day of May, with Dumerous exceptions as to the place, and some as to the person such as that, under some circumstances, the legal owners shall be assessed, and, under others,
the equitable owner- but none which makes any exemptions not included in section five, and none which affect this case in any direct way, though the section clearly shows that all trustees are intended to be included in the word "owner," unless otherwise provided for.
The remaining question is, whether the assignees were the owners of this property. This closely resem bles the question already answered, and the remarks I am about to make are to be taken as applicable to both points. If assignees are mere agents of the court, and the fund is one in court, there might be reason to say that it was without a definite owner who could be ascertained and assessed, but there is no doubt that assignees are trustees with great powers and large discretion. They have the legal title and control of the property as fully as the bankrupt had, and it has been repeatedly decided that statutes, or rules having the binding power of statutes, which regulate the administration of their trust, such, for example, as require them not to sell by private contract, or not to bring action or suit without an order of court or a consent of creditors, are merely directory, so that a neglect of them will form no valid objection to a title and no defense to an action or suit. I am of opinion, therefore that the assignees were the owners of this property on the first of May, and that the assessment was properly made before then, and that they should pay the tax. Order accordingly.
WHEN REGULARITY OF CORPORATE ORGANIZATION MAY NOT BE QUESTIONED. SUPREME COURT OF THE UNITED STATES-OCTOBER TERM, 1877.
CHUBB, plaintiff in error, v. UPTON. There was an attempted alteration of an Illinois corporation under the forms of law approved by the attorneygeneral of the State, with an increase in capital. Defendant took part in the proceedings, subscribed for the increased stock, paid à percentage thereon, and acted as an officer of the new company. Held, that he could not, in an action by the assignee in bankruptcy of such company to compel the fulfillment of his contract of subscription, deny the regularity of the organization of the new company.
error to the Circuit Court of the United States for the Western District of Michigan. The action was brought by Clark W. Upton, assignee of the Great Western Insurance Company, a bankrupt, against A. Lamont Chubb, to enforce a contract of subscription for stock of the bankrupt. Sufficient facts appear in the opinion.
Mr. Justice HUNT delivered the opinion of the court.
The numerous questions raised upon the trial of this action depend upon a few general principles which are not difficult of application.
It is settled by the decisions of the courts of the United States and by the decision of many of the State courts that one who contracts with an acting corporation cannot defend himself against a claim on such contract, in a suit by the corporation, by alleging the irregularity of its organization. This was settled more than half a century since in the courts of the State of New York, and has recently been affirmed in this court. Dutchess Collar Mg. Co. v. Davis, 14 Johns. 238; Sanger v. Upton, 91 U. S. 56; Upton v. Trebilcock, id. 45; B. & A. R. R. Co. v. Cary, 26 N. Y. 75; Bissell v. M. S. R. R. Co., 22 id. 259.
It is also settled that the same principle applies to
the case of a subscription to the capital stock in an organization which has attempted irregularly to create itself into a corporation and has acted as such. Same auth.; Meth. Ch. v. Pickell, 19 N. Y. 485; Upton v. Hamborn, 3 Bissell, 417.
The rule applies to increasing the stock of a corporation when the question arises upon paying a subscription for stock forming a part of such increase. The duty and the necessity of performing the contract of subscription are the same as in the case of an original stockholder.
An assignee appointed under the bankrupt laws of the United States represents both the corporation and its creditors, and the defense of irregular organization cannot be urged against him. Auth. supra.
It has been several times adjudged in this court that in an action by such assignee to recover unpaid subscriptions upon stock in such an organization, the defense of false and fraudulent representations inducing such subscription cannot be set up, especially when the subscriber has not been vigilant in discovering such fraud and in repudiating his contract. Upton v. Trebilcock, 91 U. S. 45; Webster v. Upton, id. 65; Carver v. Upton, id. 64; Ogilvie v. Knox Ins. Co., 22 How. 387.
The same authorities hold that one who receives a certificate of stock for a certain number of shares at a given sum per share thereby becomes liable to pay the amount thereof when called upon by the corporation or its assignee. Nor is it necessary to sustain the action that there should have been a subscription for the whole amount named on the articles. R. & W. Plank R. Co. v. Westel, 21 Barb. 56.
The statute of Illinois of 1869 authorized an increase of the capital of the Great Western Insurance Company. Papers were filed under the law for that purpose, which were examined by the attorney-general and certified to be in due form, and the company proceeded to issue its stock upon that theory.
The defendant became a subscriber for fifty shares of this increased stock, the shares being $100 each. He paid a portion, to wit, thirty per cent of this subscription. He attended meetings of the stockholders and of the directors, acting himself as such. He gave a proxy to Mr. Atwater to attend a meeting of the stockholders at Chicago and to vote for him, and he was elected and acted as the president of a branch of the said company.
It is idle to deny that this was the case of an organization which claimed to have taken and apparently supposed that it had taken the measures required by law to complete its increase of capital. It acted as such, and the defendant by receiving his certificate of stock entered into engagements with it as such. If it be conceded that its increased stock was but de facto, and that it could have been annulled or suppressed by the action of the attorney-general as acting under an irregular organization, the defendant derives no aid from the admission. The cases cited are clear to the point that he cannot make the objection but must perform the engagements he has made.
The last offer of the defendant was intended to present this question in its most formidable shape. It was to show that the original capital of $100,000 was fully subscribed; that the holders of the stock never increased the capital nor authorized its increase; that this company ceased to do business prior to 1868; that the $100,000 was not transferred to the company claiming to have organized on the increased capital, and
that there was no valid transfer of the original stock or charter.
All this does not alter the fact, that there was an attempted alteration of the company under the forms of law, approved by the attorney-general, with an increased capital, in the organization and management of which the defendant took part; that he paid his money, received his certificate of stock, attended meetings, voted, acted as an officer, and, so far as the record shows, never repudiated his position at any time, even to the time of the trial. If successful, he would have shared in its profits. He may have been the dupe and victim of the action of others. He may have been an accomplice. At all events he was so far an actor in the affair that he cannot escape the consequences of his position.
Another series of objections is to the admission of various pieces of evidence introduced to show that the defendant was a stockholder. The original stockledger had been destroyed by fire, and the plaintiff supplied its place by the introduction of sundry other kinds of evidence tending to prove who were the stockholders, and that the defendant was one of them. The importance of this evidence was at an end when the certificate of shares was afterward given in proof and when it was expressly admitted by the defendant that he held the same; that he made payments thereon and acted as a holder of shares in the company. It is not necessary, therefore, to inquire whether or not the evidence was properly admitted.
At the time this writ of error was taken, the decisions of this court in the several cases of Upton v. Trebilcock, Sanger v. Upton, and Carver v. Uptori (91 U.S.), had not been made. They contain a clear statement of the views of the court upon all of the material points here to be considered, and we suppose that this writ of error would not have been brought had they then been before the party and his counsel. The careful examination given in those cases to the several questions here involved render unnecessary a detailed review of the cases.
We think there is nothing in the record before us that would justify us in disturbing the verdict and judgment rendered in the Circuit Court. The judgment is, therefore, affirmed.
CONTRACT FOR USE OF WHARF A MARITIME ONE.
SUPREME COURT OF THE UNITED STATES - OCT. TERM, 1877.
EX PARTE EASTON ET AL., Petitioners.
A contract for the use of a wharf by the master or owner of a ship or a vessel is a maritime contract, and as such is cognizable in admiralty, and being one made exclusively for the benefit of a ship or vessel, a maritime lien arises in favor of the owner of the wharf against the vessel for payment of reasonable and customary charges for such use, and the same may be enforced by a proceeding in rem or a suit in personam. A barge though not propelled by wind or steam, or any motive power of its own, may be held liable for wharfage dues.
ETITION for a writ of prohibition. Sufficient
Pacts appear in the opinion.
Mr. Justice CLIFFORD delivered the opinion of the court.
Judicial power, under the Federal Constitution extends to all cases of admiralty and maritime jurisdiction, and it was doubtless the intention of Congress,