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Anglo-American Memories

<h3> CHAPTER VIII A GROUP OF BOSTON LAWYERS—MR. OLNEY AND VENEZUELA </h3> A name still remembered in Massachusetts is that of Judge Thomas of the Supreme Court, the court of highest jurisdiction in that State, and one of the few State courts whose decisions have always been cited with respect in the Supreme Court of the United States. It was recruited largely from the Suffolk Bar. The Boston Bar was known as the Suffolk Bar, the name of the county. But, of course, other parts of the State supplied judges, and Worcester County was one. Judge Thomas lived and practised law in the town of Worcester. He practised politics also, of a very energetic kind, being a good platform speaker and a good organizer. There used to be a story that one morning, in the heat of an exciting campaign, Thomas knelt at family prayers and began his invocation to the Almighty: "Fellow-citizens and Whigs of Worcester County." However that may be, he was a successful lawyer, a successful judge, and had attractive qualities not always to be found at the Bar. I {75} will tell you in a moment in what way he connects himself permanently with national and international history. I came to know about it because it was before Judge Thomas that I tried, at nisi prius, and lost, my first case in the Supreme Court. When the jury had delivered their wrongful verdict, and been sent about their business, Judge Thomas called me up and spoke to me with a kindness I have never forgotten. He thought I had tried my case well, told me I should do well at the Bar, and offered, very generously, to help me if he could. After a time he resigned his seat on the Bench and went into practice in Boston. A little later I called on him and asked whether he had room for a junior in his office. "There would have been room if you had applied earlier," said Judge Thomas. "But I have just been told by my daughter that she has engaged herself to a young lawyer, and he is to have the place I should otherwise have been glad to offer you." The name of that young lawyer was Richard Olney. It fell to my lot to see something of him in Washington forty years later, when he was Secretary of State under President Cleveland. I saw him for some weeks, during the height of the Venezuela crisis, almost daily. Whether I shall ever be allowed to tell the whole story of what went on during those weeks I do not know. If I were Mr. Olney I would give my assent to the publishing of a complete statement. I say that because, in my judgment, we owe it to Mr. Olney—and among Americans to him {76} only—that a way out of the difficulty in which President Cleveland's Message had landed us was ultimately found. I know how it was found, and except Mr. Olney himself, I don't think any other American knows. I am aware of the explanations which Mr. Cleveland published in The Century Magazine, and I think them models of unintentional disingenuousness. Moreover, I had means of knowing what was said and done on this side, in England, in the Foreign Office and elsewhere, during those dangerous weeks; and I know why the settlement was postponed till next summer, when the American people, at white heat during December, 1895, and January, 1896, had cooled off and forgotten there was any crisis at all. But if I never had a chance of saying more, I wish to say now that Mr. Olney did a great service to his country, and to both countries; one of the greatest ever done by any man in his position, or in almost any position. I think Mr. Cleveland became aware that he had acted rashly and with no full knowledge of the history of that boundary-line between British Guiana and Venezuela which he announced to the world his intention to re-draw to suit himself, with menace of war to Great Britain. I don't forget Mr. Olney's share in the dispatch of July, 1895, which began the trouble. He and Mr. Cleveland concocted that extraordinary document between them at Gray Gables. I suppose he knew also of Mr. Cleveland's Message to Congress, December 12th, and perhaps approved of it—indeed, he must {77} have approved of it or resigned. He must also have been responsible for the second dispatch calling upon Lord Salisbury to send an answer to the July dispatch before the meeting of Congress in December; a demand perhaps unprecedented as between two Powers of the first rank. I know, too, that some of Mr. Olney's language gave offence. Lord Salisbury thought him rude; an impression due mainly to the different uses made of the English language in Washington and in London, and to the non-existence in Washington, at that time, of that diplomatic freemasonry, in both speech and act, and of those diplomatic conventionalities which prevail in other important capitals of the world. All that—and there is more—only emphasizes the delicacy with which Mr. Olney subsequently handled the dispute which Mr. Cleveland had envenomed. A new period in the negotiations began. I shall venture to say, even though Mr. Olney, out of loyalty to his President might refuse to admit it, that with the New Year of 1896 the conduct of the negotiations passed into his hands. That he reported to the President what was going on I don't doubt. But a new spirit prevailed. The tone which had been so offensive in the original dispatch, and still more in the Message to Congress, was dropped. Mr. Olney had a wonderful flexibility of mind. When he saw that one set of tactics had failed, he was quick to try another, and not only to try another but to recognize the need of a wholly new departure. {78} He was equally quick in invention, in devising expedients, in looking at facts with a fresh pair of eyes. A trained diplomatist he was not, but in this emergency he showed the qualities of a trained diplomatist; the resource, the tact, the fertility, and the power of divining what was in his adversary's mind. Lord Salisbury's was not an easy mind to divine. He had the gift of silence, and to a still more remarkable degree the gift of enveloping his thought in that language of diplomacy which, as I said, was not at that time a language very well understood in America. But Mr. Olney guessed pretty accurately at Lord Salisbury's purpose, and they carried on their exchange of views without very great friction. The truth is, both were bent on finding a solution. The point in which Lord Salisbury had the advantage was patience. Mr. Olney was under some pressure. Lord Salisbury was not. Americans will, I think, do well to bear in mind that, after Prince Bismarck's death, Lord Salisbury was regarded throughout Europe as a higher authority, with a more commanding influence, than any Foreign Minister then in power. He had immense experience, immense knowledge, an immense power of work, and fine natural gifts perfected by long practice. There were not many Ministers who transacted great affairs with Lord Salisbury on even terms. But Mr. Olney was one of them. I find myself, however, going further than I meant to. I meant no more than to put on {79} record, before it is too late, the testimony of an eye-witness, and my belief that, but for Mr. Olney, there might have been a very different ending to the quarrel upon which President Cleveland entered in his over-confident, clumsy way. I have departed from the order of time in these "Memories." I must often depart from it; I cannot begin a story and leave it half told because the end belongs to later years. Mr. Olney has made so great a name and place for himself at the Bar, as well as in the State Department, that no testimony or tribute can be of much importance to him. But it is important to me to offer it. A debt of gratitude may be easily borne, often much too easily; but if it can never be repaid it can be acknowledged, and I acknowledge mine to Mr. Olney at the same time that I remind others of what they also owe him. I do not regret having had to give way to Mr. Olney in Judge Thomas's office. If I had been admitted into that coveted place, I should have stayed in Boston and at the Bar, and perhaps have had a prosperous professional life. But I should not have had the kind of experience which has made life interesting to me in so many various ways, and which I am now trying to make interesting to others. Mr. Rockwood Hoar, afterward Attorney-General of the United States, whose name I have mentioned earlier, was counsel for the other side in my Supreme Court case. If my client had {80} had a good defence, which perhaps he had not, a novice at the Bar had little chance against a man with the learning and force of Mr. Hoar. He had, however, a spirit of scrupulous fairness. No man ever suspected Rockwood Hoar of unworthy devices. He was too able to need them and too honest to use them. But he tried experiments, as every lawyer does. He put a question to a witness which I thought innocent enough, but a friendly lawyer who sat near called to me in a stage whisper, "Object." So I objected, not the least knowing why. The judge looked to Mr. Hoar. "Surely," said Mr. Hoar, "my friend will not press his objection." Not knowing what else to say, I said I would withdraw the objection if Mr. Hoar would say he thought the question competent. The judge smiled, and Mr. Hoar smiled at my ingenuousness, and said, "Well, I will ask the witness another question." Mr. Horace Gray was at that time reporter to the Supreme Court of Massachusetts. After he had become a judge of the Supreme Court of the United States I used to meet him in Washington. One day he said to me: "You used to practise law in Boston." "Yes." "I think we must have met. I must have seen you in court. You tried a case in the Supreme Court before Judge Thomas. Stop a moment. I can tell you the name of the case. You argued it afterward before the full bench. It was Krebs v. Oliver." {81} And it was. Forty years had passed. Mr. Justice Gray had what may be called a memory. He had much else: an inexhaustible knowledge of case law; a power of dealing readily with complex matters; a fast hold of principles; an industry without limit; the cordial respect of his fellow judges; and a pleasant house in Washington whereof the hostess was one of Washington's favourites. And he had a stature of somewhere between six and seven feet, with a smiling face and massive head to crown this huge frame. He is gone. I wish he were not. Of the many members of this brilliant Suffolk Bar there was one of a very unusual kind of brilliancy. The brilliancy of invariable success was his. I believe it to be literally true that during many years he never lost a case which depended on the verdict of a jury. At the Bar, of course, as elsewhere, nothing succeeds like success, and Mr. Durant's practice was very large. I have noticed that clients, as a rule, would rather win their cases than lose them. How did he do it? Nobody ever knew. His beaten rivals, or perhaps their clients, sometimes hinted at things nobody ever ventured to assert, since there was not a scintilla of evidence to justify insinuations. There was probably no secret save what lay on the surface. Mr. Durant was a good lawyer who prepared his cases with a thoroughness that left no point in doubt, and no scrap of evidence unexamined. He knew to a nicety what would {82} tell with a jury and what would not. He was not a man on whom it was possible to spring a surprise. His cross-examinations, without being showy, were deadly. As a speaker—orator he was not—he had no other conspicuous merit than clearness; the art of marshalling facts to fit his own theory of the case. When he rose the jury were predisposed to believe. He had a way of turning to the jury whenever during the trial he had made a point, brought out a telling fact, or wrung an admission from an incautious witness. It was as if from the beginning he took the jury into partnership; it was a matter in which he and they were alike interested, and the only interest of either was to discover the truth. They said of him what was said by a juryman of another famous advocate: "It's no credit to him to win his causes. He is always on the right side." When Mr. Durant sat down the jury were convinced that he, too, was on the right side, and their verdict was but the formal and legal ratification of the moral view, and, as they believed, of their own conscientious conviction. Hypnotism? I think not. The thing was not much heard of in those days. It is quite possible that Mr. Durant used discrimination and never took a cause into court in which he did not feel sure of a verdict, but many a lawyer is sure of a verdict he does not get. There remains a residuum of mystery which has never been explained, and is probably inexplicable. Mr. Durant's {83} presence explained something. He had a powerful head, chiselled features, black hair, which he wore rather long, an olive complexion, and eyes which flashed the lightnings of wrath and scorn and irony; then suddenly the soft rays of sweetness and persuasion for the jury. He looked like an actor. He was an actor. He understood dramatic values, and there was no art of the stage he did not employ upon a hostile or unwilling witness. He could coax, intimidate, terrify; and his questions cut like knives. He had a stage name, like so many other actors. His real name was Smith, which perhaps was not generally known. But one day in court he was tormenting a reluctant witness who had been Jones and was now Robinson. "Mr. Jones," cried Durant—"I beg your pardon, Mr. Robinson." "Yes, Mr. Smith," retorted the witness—"I beg your pardon, Mr. Durant." That cross-examination came quickly to an end. But I believe Mr. Durant's prestige continued while he remained at the Bar; then having amassed a fortune, he abandoned the law and took to preaching. Whether he had the same success in saving souls as in winning causes I never heard. {84} <div style="break-after:column;"></div>

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