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Cornell University Library 
 KF 8742.Z9G23 
 
 Experience in the Supreme court of the U 
 
 3 1924 020 038 547 
 
A Cornell University 
 y Library 
 
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 tlie Cornell University Library. 
 
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 http://www.archive.org/details/cu31924020038547 
 
EXPERIENCE 
 
 United States Supreme Court, 
 
 WITH SOME 
 
 EEFLECTIONS p^' SUGGESTIONS 
 AS TO THAT TRIBUNAL. 
 
 GAELAND. 
 
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 WASHINGTON, D. C. 
 
MATT. CARPENTER. 
 
RI^'I-.RllV JOIIXSOX. 
 
EXI=E!ie.XEnsrOE 
 
 Supreme Court 
 
 UNITED STATES 
 
 WITH SOME 
 
 REFLECTIONS AND SUGGESTIONS AS TO THAT 
 TRIBUNAL 
 
 BY 
 
 A. H. GARLAND 
 
 Formerly Governor of Arkansas, United States Senator, 
 and Attorney-General of the United States 
 
 washington, d. c. 
 
 John Byrnb & Company 
 
 1898 
 
Copyright, 1898, 
 
 by 
 
 John Byrne & Co 
 
 FREDERICK, MD. ; 
 
 Press of BAUOHiviAif Bros, 
 
IF there are such things as political axioms, the 
 propriety of the judicial power of the government 
 being coextensive with the legislative may be 
 ranked among the number — Alexander Hamilton 
 No. LXXX Federalist. 
 
EXPERIENCE 
 
 Supreme Court of the United States, 
 
 WITH SOME REFLECTIONS AND SUGGESTIONS AS 
 TO THAT TRIBUNAL. 
 
 Before entering properly upon the subject named, 
 it is well probably to go back and consider of the 
 time when I first came to that court and what 
 brought me. 
 
 In December, i860, when I was about half-way 
 between twenty-eight and twenty-nine years of age, 
 I left Little Rock, Arkansas, to come to the court 
 for the purpose of attending to the case of McGee v. 
 Mathis (4 Wall. Rep. 143), and several others simi- 
 lar to it — this case to be again referred to herein. 
 At that time it required nearly an entire week to 
 make the trip from Little Rock to Washington. 
 
 Getting on fairly well till I reached Bristol, Ten- 
 nessee, where we failed to make connection in trains, 
 I took a severe chill. During my contest with that 
 
4 
 
 vile and vicious creature, the landlord of the hotel 
 I stopped at consoled me with the kind observation, 
 that the chill was the outgrowth of the poisonous, 
 atmosphere of the low lands of Arkansas : — he did 
 not say malaria^ because possibly that word, so much 
 overworked now, had scarcely got into general 
 circulation at that time. I was again attacked by 
 that unconscionable enemy by the time we reached 
 Lynchburg, Virginia, and suffered no little, in a 
 berth next to one occupied by Bishop Early, who 
 was much concerned about me, and labored hard to 
 comfort and relieve me, the first and the last time 
 I ever saw that great good christian. 
 
 As we reached Lynchburg, cannons, other big 
 guns and anvils were thundering over the high hills 
 on the James and shaking the earth, in honor of 
 South Carolina's seceding from the Union, and it 
 seems to me I can hear them now : — those were 
 portentous noises. 
 
 We failed to make connection also at Lynchburg, 
 and spent twelve hours in that city before leaving 
 for Washington. While at Lynchburg I was domi- 
 ciled at a hotel right on a part or branch of the 
 James, and I fared quite well as I found there an 
 elegant article of apple brandy which I partook of 
 largely, merely as a medicine, antidote, coming 
 
under the general head in medical science, or art, as 
 the case may be, of Diff. Siim. , I believe. 
 
 Reaching Washington on the 24th of December 
 I went to the Kirkwood House, a nice and well-kept 
 hotel, run by two brothers by the name of Kirk- 
 wood. This hotel has since then rejoiced in sev- 
 eral other high and suggestive flames, and like all 
 else within that time has undergone serious and em- 
 phatic changes — the Palais Royal, a most elegant 
 and attractive place of traffic in fashionable articles 
 for men and women, for belles and beaux; then the 
 Raleigh, as it is now, a hotel and place of as superb 
 entertainment as is in all the land. 
 
 I was well enough to go to the court on the 
 26th of December as I did, with Reverdy Johnson, 
 who had me enrolled as an attorney-at-law and 
 solicitor in chancery, and if need be, proctor in ad- 
 miralty, at the bar of that court, and I felt grand, 
 truly. But as I stood up before the court and took 
 the attorney's oath, my vision became disturbed, 
 and the judges all appeared to be, at least, twice 
 the size they were, and more than double in num- 
 ber, and the surroundings generally appeared mag- 
 nified in like proportion. This, I believe, is the 
 experience of all young men on being admitted to 
 practice in that court. Soon my vision was restored 
 
6 
 
 to its normal condition, and my nerves were com- 
 posed, and after motions were called, I arose to 
 visit the Senate where Mr. Johnson was to go with 
 me, but at that moment one of the many noted 
 California land cases was called, when Mr. Benja- 
 min arose to address the court, and just then Mr. 
 Johnson said to me, stop, you must hear that man, 
 that is Mr. Benjamin, and I heard him with deep 
 interest. He was the most fluent speaker I ever 
 heard to this day — never hesitating a second for a 
 word, and learned and polished besides. I heard 
 him often after that in other tribunals down South, 
 and with undiminished interest each time. His 
 career^^is well-known to the country. After the war 
 between the States, he went to England and there, 
 at once, took rank in his profession with the first. 
 He wrote, after going to England, a work on sales, 
 which is standard authority in England and in this 
 country, and it alone would make his reputation 
 high and lasting. 
 
 After Mr. Benjamin spoke in the California land 
 case already referred to, came Jere Black to respond, 
 and then I was again requested by Mr. Johnson to 
 wait and hear him, especially as he was then the 
 Attorney-General of the United States, and I heard 
 him, and as always in after years in listening to 
 him, I was more than compensated. 
 
Before I could start from the chamber another 
 case was called, and as Mr. Badger was to speak, I 
 was again asked to stay and hear him, as he had 
 been a very distinguished Senator from North Car- 
 olina, and had once been named by the President 
 for a place on the Supreme Bench, and I heard him 
 with great satisfaction, as he fully sustained the 
 great reputation he had borne for so many years as 
 a close, learned and erudite legist. He was fol- 
 lowed by Mr. Conway Robinson, whom Mr. John- 
 son, as he insisted on my hearing him, called a 
 walking law library, and I did hear him, and he 
 spoke the law as clearly and plainly as if he read 
 it fresh from the books. I was highly gratified to 
 hear Mr. Robinson too, as I was somewhat familiar 
 with the three first volumes of his work on prac- 
 tice — the other volumes I procured after the war 
 between the States, and I have to this day used it 
 regularly, and have found it one of the very best 
 works of the kind in our libraries. 
 
 For the first day in this Court I thought I had 
 done well, more than well, in hearing forensic dis- 
 plays by four such men, and I went away quite 
 delighted with this initial experience, and one to be 
 remembered. It was a feast not often spread before 
 a young man struggling at the dim threshold of his 
 profession. 
 
Referring to admissions to the bar to practice, 
 licenses, &c., brings to mind an occurrence I once 
 witnessed, and that may interest some persons, and 
 especially law students. When at school in Ken- 
 tucky, during a vacation, a criminal case of deep 
 interest to the community was to be tried at Eliza- 
 bethtown, some twenty odd miles from Bardstown. 
 Some half dozen students of the college, myself 
 included, got permission to go over and hear the 
 trial. Among many attorneys in the case was the 
 celebrated and unique Ben Hardin, the most adroit 
 lawyer in the court-house I ever saw — Old Ben 
 Hardin^ as he was called from the time he was 
 twenty-one, as he used to say. He was the ob- 
 served of all observers, and we boys followed him 
 around over the little town like boys do a cake 
 wagon on an election day, and he looked like he 
 had just driven in a wagon from the country loaded 
 with watermelons, tomatoes and roasting ears for 
 sale. As he was about walking into the court-house, 
 a well-grown and bright-looking young man came 
 out smiling and spoke to Mr. Hardin, by the affec- 
 tionate title of Uncle Ben, and Uncle Ben hailed 
 him 3& Jimmy, and asked him about \aspa and ma, 
 and told him how long he had known them, and 
 when and where, and what color their eyes and 
 
hair were, and how tall they were. All of which 
 pleased Jiinmy greatly, and he reraarKed, with 
 much good feeling, ' ' Uncle Ben, I have just got 
 my license to practice from the judge, after a hard 
 examination, and I feel happy." "Very good," 
 said Uncle Ben, " now Jimmy get license from the 
 people and you will be all right." Jimmy's coun- 
 tenance at once assumed a thoughtful aspect, but I 
 never heard whether Jimmy did this or not. 
 
 Going over to the Senate Mr. Johnson procured 
 for me a good seat to hear and to see. Just as I sat 
 down Mr. Seward was presenting a petition from 
 citizens of New York against anything like dis- 
 union, which petition, with the names of the sign- 
 ers attached, if spread out at full length, would 
 have reached from Washington to Bladensburg. 
 Then a spirited tilt followed between Senators Doo- 
 little and Wigfall, in which, as I remember, em- 
 phatic references were made to Lord Angus, &c., 
 &c. , and the collision was indeed fierce and fiery, 
 and soon the Senate proceeded to the consideration 
 of executive business, and I retired to the Kirkwood, 
 where I had another chill. 
 
 The chills were becoming tedious and monoto- 
 nous, and I asked for a doctor to be sent for, and 
 Dr. Boyle was called in, a skilled physician and a 
 
10 
 
 feeling gentleman. He filled me up with the usual 
 remedies in such cases made and provided, calomel 
 jalap and quinine, and after some days rallied me 
 and turned me loose as well. Dr. Boyle lived for 
 many years after that, and died here not very long 
 since respected and beloved by all people who knew 
 Mm. 
 
 I was in the court only once after the day of my 
 enrolment, and nothing occurred then of any par- 
 ticular note or importance. I mingled freely on 
 that day with the clerk and his officials and visitors. 
 
 The judges then were Roger B. Taney, C. J., 
 and John McLean, James M. Wayne, John Catron, 
 Samuel Nelson, Robert C. Grier, John A. Camp- 
 bell, Nathan Clifford, Justices. 
 
 Only a few weeks before this Jere Black had pro- 
 nounced a glowing eulogy, in the new court room, 
 on Justice Daniel, who had died in the recess of the 
 court. This tribute, after speaking of the long 
 service of Justice Daniel on the bench, among 
 other things said: " The laws of this country were 
 never administered by any judge who had a higher 
 moral tone, or who was influenced by purer mo- 
 tives. ' ' This was uttered in presenting to the court 
 resolutions of the bar meeting presided over by Jef- 
 ferson Davis. The venerable Chief Justice Taney, on 
 
11 
 
 behalf of the court, most tenderly approved the reso- 
 lutions and the remarks of Mr. Black, and made 
 beautiful references to the character and services of 
 Judge Daniel. It is good for me to refer to this, as 
 I knew Judge Daniel in the Circuit Court of the 
 United States for Arkansas and practiced before 
 him there. 
 
 At the time of my visit to the court Jere Black 
 was Attorney-General, and those elegant and refined 
 gentlemen, William Thomas Carroll and William 
 Selden, were clerk and marshal. The kind and 
 generous Mr. Middleton was deputy clerk. None 
 of these names are now on the records of living 
 men ; they have all laid down their work to rest. 
 The present clerk, James Hall McKenney, I think, 
 had just a year or two before this come into the 
 ofEce as assistant. 
 
 Everything hereabout was then at fever heat. Se- 
 cession, war and things of that sort were the sole 
 subjects of conversation and discussion, and it was 
 even so on the last day I was in the clerk's office 
 where Mr. Stanton, then Assistant Attorney-General 
 (and soon thereafter Attorney-General) was unmeas- 
 ured in his expressions of favor to the South. But 
 afterwards he underwent a decided change and was 
 as unmeasured in his opposition to the South — quite 
 
12 
 
 so. And then in the clerk's office Mr. Reverdy 
 Johnson berated some man who had recently pub- 
 lished one of his former letters in which it appeared 
 he, Mr. Johnson, had not been entirely consistent. 
 Whereupon Mr. Badger warmly urged Mr. Johnson 
 to make the man produce the original letter, and 
 Mr. Johnson wanted to know what good that would 
 do! "Why," said Mr. Badger, " no one on earth 
 can read it but yourself and you can read it to suit 
 you," and the laugh went loudly around on Mr. 
 Johnson and he did not participate. 
 
 It is well to note, that it is quite important for 
 lawyers practicing in that court, to see much of the 
 clerk's office and to know its workings. If any 
 motion is to be had or proceedings asked in court 
 not specifically provided for by law or rule, it is 
 wise to seek advice there beforehand. There is 
 much in the practice and usages of the court not 
 provided for by any rule, and in some instances can- 
 not well be covered by rule ; — a sort of common law 
 of procedure that lies outside of rules and cannot be 
 put down in written charts. This is necessarily so 
 in all courts. Many useless and sometimes unpleas- 
 ant collisions between court and counsel are avoided 
 by this precaution. Even the oldest and most ex- 
 perienced attorneys are not ashamed to consult the 
 
l: 
 
 clerk's office first and they do not hesitate to do so. 
 
 In the Supreme Conrt of Arkansas, for years prac- 
 tically we had no rules save and outside of the clerk 
 himself And over and often when a question of 
 practice arose between counsel, would the judges 
 stop until the Chief Justice could entjuire of Mr. 
 Barber, the clerk (and a fine lawyer besides), what 
 the practice was, and his word settled it. 
 
 At the same time of my enrolment Samuel F. 
 Miller was admitted to the bar, and not long after- 
 wards he was appointed one of the justices of the 
 court where he became 
 
 " A tower of strength 
 Which stood four square to all the winds that blew." 
 
 He served nearly thirty years on the Bench, and 
 died at his home in Washington, on the thirteenth 
 of October, 1890. My esteem for him, born under 
 many relations of life in which I had seen him tried, 
 made his loss great indeed to me. At the bar meet- 
 ing held in this city on the sixth of December, 1890, 
 to speak of and commemorate his life and services, I 
 offered a small tribute to his memory, and I repro- 
 duce it here, as embodying briefly my views of the 
 man and the judge. 
 
 Mr. Chairman : Upon occasions like this, of 
 
14 
 
 course, we cannot express all that we desire in ref- 
 erence to so grand a character as that of Mr. Justice 
 Miller, and those who address the bar meeting 
 must, of necessity, be brief ; but I would feel that I 
 was derelict and unfaithful if I did not give some 
 of the impressions that I have in refei'ence to h'im 
 at this time, or, indeed, if I permitted any proper 
 oppportunity to pass without saying something in 
 commendation of him. 
 
 My acquaintance with Justice Miller began more 
 than twenty years ago, when he came to Little Rock 
 to hold his first court there. The country, some 
 short time previous to that, had been in a state of 
 war ; in fact, in a state of chaos, when not only the 
 laws were silent, but ' ' even almost the voice of God 
 was silent." Up to that time for several years past 
 the business in the United States Court there had 
 not been large or onerous. The lawyers were some- 
 what rusty in the Federal practice, and many things 
 had transpired in reference to that practice with 
 which we were not familiar. Justice Miller came 
 there with a docket of considerable size and impor- 
 tance awaiting him, and held his term for some 
 three weeks, in which, with a blunt directness 
 somewhat bordering, as has just been stated, on 
 ruggedness, he did many new things and brought 
 
15 
 
 to our attention matters of practice that we had not 
 yet dreamed of. The means sometimes that he used 
 to discipline us in these new ways were not entirely 
 agreeable to us at the time, and to some extent we 
 flinched under his affectionate chastisement, but 
 when he left Little Rock, at the close of that term, 
 there was not a member of that bar who did not 
 esteem and admire him, and he has had their un- 
 broken affection ever since. And when the sad 
 news of his death first went out to the country, that 
 bar met to testify their estimate of him, and in 
 strong and elegant and eloquent language it spoke 
 in just praise of him in all relations of life, and the 
 resolutions of that meeting are, with other memor- 
 ials, in possession of the Clerk of the Supreme 
 Court, to help make up in the future a lasting me- 
 mento of his good name. 
 
 He was my friend, as I have reasons to know, at 
 all times, and he was a friend to the people whose 
 trust I bore in this city for years, and he served 
 them at times and in ways they know not of I 
 never hesitated to seek his advice and counsel, 
 which he gave always freely and not grudgingly, 
 and often, too, when I needed a friend. Never was 
 there an uncertain sound in his responses. 
 
 Upon one occasion, when I approached him with 
 
16 
 
 feelings of delicacy with reference to the subject- 
 matter, he laid down the large transcript before 
 him and answered : ' ' You can always speak to me 
 on anything under God's heaven." And this was 
 the style of this unpretending man. He had no 
 airs about him. He was just as he was whether on 
 or off the Bench. The wonderful simplicity of the 
 man's character was its greatest and best feature. 
 He did not believe in perfect men ; he did not him- 
 self pretend to be perfect ; he knew the frailties 
 and weaknesses of mankind, and he made every 
 allowance for them. In those perfect people, those 
 "faultless monsters which the world ne'er saw," 
 he took no stock. 
 
 Though at times he appeared to be rough and 
 rugged upon the Bench, yet no warmer and better 
 heart than his ever beat in the side of man. His 
 familiar bearing and pleasant demeanor through 
 these halls, towards the clerks, oiiicials, messengers, 
 and attendants of the court, were more like that of 
 a guardian or father, and they will miss him, as his 
 colleagues on the Bench, and as we who appear be- 
 fore that Bench will sadly miss him, and it will be 
 many days, I fear, before the vacuum that his death 
 has created will be filled. He owed as little to the 
 schools and to the influence of wealth and of society 
 
17 
 
 for his advancement, almost, as any of the great 
 men of our country who have gone before him. He 
 was essentially self-made. His name and his record 
 have gone to history ; they cannot be impeached ; 
 they cannot be worn away by time or anything 
 else. His work was well-rounded up, and from the 
 whole country, in all the papers, in all the courts, 
 and by all sorts of people, his praises have been 
 spoken, and I can add nothing to them. Here 
 amidst his friends, upon the scene of his greatest 
 triumphs and glory, with his family and other kind 
 ones around his body at his bed of suffering and 
 with every attention bestowed, this plain man of 
 level head, of great common sense, enlightened by 
 well-matured law knowledge, as honest as the sun- 
 light, of ' * iron nerve to true occasion true, ' ' de- 
 parted this life, just before the coming term of the 
 Supreme Court, at which he was to perform new 
 and exacting duties. His mission is full and com- 
 plete, and it is done ; and I may, Mr. Chairman, in 
 conclusion, use the same words that he so appro- 
 priately uttered in reference to the death of Chief 
 Justice Waite : 
 
 ' ' Who does not wish that when his own end 
 shall come it may be like this?" Mr. Chairman, 
 I second the motion to adopt the resolutions. 
 
18 
 
 The list of enrolment of attorneys at the time of 
 my admission was unusually large, marking close to 
 one hunred (24 How. Rep.), and among the names 
 we noticed many who honored their profession and 
 filled high places of trust in their States and in the 
 nation. 
 
 Leaving Washington about the 15th of January, 
 1861, I returned to my home, and did not visit 
 Washington again for over four years, as I had 
 pressing business all this time at Montgomery, Ala- 
 bama, and at Richmond, Virginia, so urgent and 
 pressing I could not even visit the capital of the 
 United States during that period. 
 
 In July, 1865, after the row between the States 
 had subsided, I called on President Johnson with 
 much amiability, and requested pardon for my 
 deeds of commission and omission, in that row, 
 and seco'nded by the efforts of my constant and stead- 
 fast friend, Mr. Reveidy Johnson, I prociired the 
 pardon — it was large and capacious, and I hugged 
 it closely and went off rejoicing, with exceeding 
 great joy, as a novus homo would naturally do. 
 
 Before going home, however, I went to the 
 .clerk's office of the Supreme Court and renewed 
 my very pleasant acquaintance with those there 
 whom I knew, and formed the acquaintance of 
 
]9 
 
 others quite agreeable. Many of those now are 
 not, and 
 
 " The mower mows on though the adder may writhe, 
 And the copperhead coils round the blade of the scythe." 
 
 Looking over the papers and records of that office, 
 I found the cases I had lodged there more than four 
 years before were still there undisturbed. 
 
 During that visit I formed the idea of making 
 application to the court for leave to practice, not- 
 withstanding the test-oath then required by a pre- 
 vious act of Congress, and I spoke to Mr. Johnson 
 to retain him to aid me in it, to which he replied : 
 "With the greatest of pleasure will I do so, but not 
 for one moment will I think of receiving a fee, ' ' big 
 hearted, large brained and generous man and friend. 
 
 Early that fall I drew the petition and forwarded 
 it to Mr. Johnson, which he filed in court and late 
 that year I came on to see after it. By this time 
 the move had attracted much attention and had ex- 
 cited no little interest, and the day after I came, at 
 that term, Mr. Middleton, then clerk of the court, 
 said to me, " he desired very much to see the South- 
 em lawyers back in the court, and he recommended 
 me to get, if I could, Mr. Matt. Carpenter to ap- 
 pear in the case. ' ' Carpenter was then the very 
 
20 
 
 personification of health and striking manhood, 
 and his star was rising and going rapidly to its 
 zenith, and great and brilliant intellectuality was 
 stamped in unmistakable characters upon his face. 
 
 I spoke to him of the case, and at once, he made, 
 in substance, the reply that Mr. Johnson did.- The 
 case was argued at that term. Mr. Johnson, Mr. 
 Carpenter and myself appearing for the petition, 
 and Mr. Speed, Attorney-General, and that courtly 
 and polished gentleman and lawyer, Mr. Stansberry, 
 special counsel against the petition. Mr. R. H. 
 Marr, of Louisiana, had filed a similar petition and 
 he appeared also for the application. The court 
 held the case for some little while under advisement, 
 and then ordered a reargument, which was had, 
 and in due time a decision by one majority was 
 rendered in favor of the application. Mr. Justice 
 Field delivered the opinion of the court, and it was 
 a clear, clean and cogent presentation of the case ; 
 Mr. Justice Miller delivered a dissenting opinion of 
 great force and power, and three other judges. 
 Chase, Davis and Swayne concurred in this dissent. 
 
 By the way, Mr. Blaine, in his Twenty Years in 
 Congress^ states that at the New York Convention 
 (1868) when Mr. Seymour was nominated for Pres- 
 ident, there was a strong feeling among Southern 
 
21 
 
 Democrats to nominate Judge Chase, as he had 
 favored the application to admit their lawyers, but 
 this is a mistake, for Judge Chase did not favor it, 
 but opposed it. I called Mr. Blaine's attention to 
 this error soon after his book came out, and he said 
 he would correct it in subsequent editions. I do 
 not know that he ever made the correction. Strange 
 enough, about one month after this decision, Judge 
 Wayne,' after a long and very honorable service 
 on the bench, died, and if this event had occurred 
 one month earlier the case would have been lost by 
 an equally divided court But it stands as Ex parte 
 Garland^ 4th Wall. 333, vindicating the right of 
 lawyers against legislative encroachments, and 
 often I am called Garland Ex parte^ or Ex parte 
 Garland^ or In re Garland^ as the case may be. 
 
 It is not without interest to note, how in the space 
 of a little over four years the personnel of the court 
 had changed. In the beginning of the term of 1865 
 the judges were Salmon P. Chase, C. J., James M. 
 Wayne, Samuel Nelson, Robert C. Grier, Nathan 
 Clifford, Noah H. Swayne, Samuel F. Miller, David 
 Davis and Stephen J. Field, justices, showing a 
 broad chasm in this respect, since my firs: appear- 
 ance in the court in i860. 
 
 McGee v. Mathis and the several kindred cases 
 
22 
 
 that first brought me to the court were decided about 
 that time, and they are reported in 4th Wall, as 
 above stated, and the decision was in favor of my 
 clients. These cases involved the question of im- 
 pairing the obligation of contracts by State law, 
 and the Circuit and Supreme Courts of Arkansas 
 had decided against my position. The amount 
 financially involved in these cases was large indeed 
 and the results, if no war had come upon us, would 
 have enabled me to retire, if I desired, from practice, 
 but by the time the decision was made, there was 
 not enough in them to pay the costs of the suits. 
 
 A little coincidence may not be out of place ! The 
 4th Wallace like the 4th Wheaton contains possibly 
 a larger number of great cases — cases involving all 
 sorts of constitutional questions, than any one of 
 the other numerous volumes of the reports of the 
 court. Not long after the appearance of 4th Whea- 
 ion, it is told, that in a church in lyouisville, Ken- 
 tucky, where an eminent divine was preaching with 
 much ardor, an equally eminent lawyer dozing 
 away suddenly half aroused and said audibly, ' ' Oh 
 that is all overruled in 4th Wheaton, overruled, sir, 
 in 4th Wheaton" — this created a little diversion and 
 commotion in the church, but soon the preaching 
 went on as before. 
 
23 
 
 The reporters during my time with and in the 
 court were Howard (only the 24th Howard), Mr. 
 Black, Mr. Wallace, Mr. Otto and now for the past 
 fifteen years, the assiduous, polite and very compe- 
 tent J. C. Bancroft Davis. I had no acquaintance 
 with Mr. Howard, but with the others I was well 
 acquainted and was on good terms with them, and 
 to Mr. Davis especially am I indebted for many kind 
 and generous attentions in the workings of his office. 
 
 The office of the reporter is not a sinecure, nor is 
 it a bed of roses. The work is constant, arduous 
 and exacting. A failure to give full scope in the 
 syllabus to the opinion to the utterances of a judge, 
 brings wrath upon him — and so if he fails, as an 
 attorney thinks, to do him full justice in reporting, 
 or commits a mistake in any way a warm encounter 
 is the result. There are several instances of this 
 within my knowledge, but I will give one only. 
 Our present efficient and competent Governor of 
 Arkansas, Daniel W. Jones, several years ago was 
 Attorney-General of the State, and he came here to 
 represent the State in some important cases before 
 the court. He argued the cases and filed a printed 
 brief duly signed Daniel W. Jones, Attorney-Gen- 
 eral, &c. , but when the cases were reported the name 
 appeared as David W. Jones. On seeing this Gen- 
 
24 
 
 eral Jones grew moody and melancholy and then 
 angry, and he wrote the reporter (Mr. Davis) a very 
 warm if not inflammatory letter remonstrating most 
 hotly against this error. To this Mr. Davis replied 
 equally as tartly and showed it was not his fault. 
 There the matter as between the attorney and Mr. 
 Davis seems to have rested, but sometimes since 
 then, by intimate friends the injured party is called 
 David^ Davy or Dave as comes most convenient, 
 and this is not at all palatable to Daniel W. Jones. 
 General Jones, I believe, had no particular objection 
 to the name of David, a historic and suggestive 
 name, but he did object to this unceremonious and 
 unlegislative way of changing his name, that he had 
 worn for so many years and so honorably, and that 
 change without notice to him. We can usually 
 take all sorts of privileges with our friends, but to 
 tamper with their names, get them wrong by spell- 
 ing or otherwise is a sin unpardonable. The meekest 
 and most amiable will rebel at that. 
 
 l^awyers attending the court are brought much 
 more in communication with the clerk's office than 
 with the marshal's, but my observation is that the 
 marshals of the court, without exception, have been 
 attentive, accommodating, competent and worthy 
 gentlemen, and this includes the time of William 
 
25 
 
 Selden to the present incvimbent John Montgomery 
 Wright. 
 
 After my visit to the court when the test-oath 
 case was first argued, although having within that 
 time a fair share of the Arkansas cases before the 
 court, I did not attend again till the December 
 term for 1871, when I heard the wonderful effort 
 of Jere Black in the Blyew case from Kentucky 
 (13 Wall.) 
 
 The cases I came here then to attend to were liot 
 then reached, but the privilege of hearing this ar- 
 gument by Judge Black more than repaid me for 
 the time and expenses of the trip. It electrified 
 court, bar and audience. To be able to make such 
 an argument is worth all the offices, even the high- 
 est, a man can hold. Such a display of intellectu- 
 ality is the very highest power a man exercises. 
 And with all the talent and ambition for place this 
 gift is above all. There are single efforts one would 
 feel prouder to have made than to hold the office of 
 President. This by Judge Black is one; the speech 
 of Judge Curtis in defence of Andrew Johnson is 
 another; and Ben Hardin's speech on appeal to the 
 Senate of Kentucky from. Gov. Owsly's attempt to 
 displace him as Secretary of State is another, and 
 
 others could be mentioned. 
 
 2 
 
26 
 
 Before I came to the court again, I was elected to 
 the United States Senate and took my seat in 
 March, 1877, and this brought me in more frequent 
 contact with the court. I had the undisguised 
 pleasure, as Senator, of voting for the confirmation 
 of Justices Harlan, Woods, Gray and Blatchford, and 
 I have had no reason to repent of those votes. Jus- 
 tice Woods died May 14th, 1887, with a good record. 
 He was, I think, the best and closest listener to ar- 
 guments of counsel I ever appeared before, and he 
 grew and developed- most remarkably from the time 
 he came on the bench. Judge Blatchford left us in 
 July, 1893. He came to the Supreme Court Bench 
 with long years of experience, well and thoroughly 
 equipped in the knowledge of court business as 
 well as in the law generally, and he fully main- 
 tained the reputation he won as a circuit judge, and 
 greatly added to it. 
 
 Justices Harlan and. Gray still hold and adorn 
 their seats, and long may they continue to do so. 
 By years of service they have travelled up nearest 
 to the Chief Justice, to his right and left respect- 
 ively. 
 
 Stanley Matthews' name was sent to the Senate 
 while I was a member of that body, for the position 
 of Associate Justice of the court. A severe contest 
 
27 
 
 was had over his nomination, but it was confirmed. 
 I did not vote for his confirmation, not doubting, 
 however, for one moment, of his ability and capac- 
 ity to discharge the duties of the ofl&ce. He went 
 upon the Bench and took hold of his work as easily 
 and familiarly as if he had been trained to it for 
 years, and he did well and most ably his share of 
 the labor, and died when apparently his manhood, 
 intellectual and physical, had not reached its best. 
 Not long after I came to the Senate, sitting one 
 morning in the clerk's office some little while be- 
 fore the court was to meet, I saw Mr. Conkling come 
 in, in something of a hurry, with a good-sized 
 record of a case in court in his hands, and observ- 
 ing Mr. Carpenter sitting there with his hat down 
 over his eyes and his overcoat pulled up about his 
 neck, said, " Ah, here is the Senator from Wis- 
 consin, the very man I want to see — I have a case 
 coming up this morning in the court, and I am 
 troubled about a point in the record (then he read 
 from the record), now what would you do about 
 it?" Mr. Carpenter, not rising at all or changing 
 his position in the least, said, "Why I would em- 
 ploy a good lawyer. ' ' To this Mr. Conkling, pull- 
 ing himself up to full height, said, "I may do so, 
 but I will not employ the Senator from Wisconsin. 
 
28 
 
 Much merriment with the bystanders was created 
 by the interview, and then the two sat down and 
 went over the matter quietly and in earnest. They 
 were the very best of friends, and this little episode 
 did not disturb their relations, for on delivering the 
 remains of Mr. Carpenter on behalf of the Senate 
 to the Governor of Wisconsin, the little speech 
 made by Mr. Conkling is an exquisite classic. 
 
 Some three years after I came to the Senate, the 
 court sustained a great loss in the death of Mr. 
 Middleton, the clerk. In due time the court ap- 
 pointed his deputy, James Hall McKenney, the pres- 
 ent clerk, in his place, and he has rendered satis- 
 factory and acceptable service as clerk. I presented 
 a petition for his appointment to all the Senators 
 for their signatures, who appeared as attorneys in 
 the court, and I believe, without exception all 
 signed it. Whether that contributed to the appoint- 
 ment I do not know, but he was appointed in regu- 
 lar succession, as he had been an acceptable deputy 
 for so long — usually a good and wise rule to be ob- 
 served in such cases. 
 
 For the balance of the time I was in the Senate, 
 in my intercourse with the court, nothing of any 
 special note as an experience occurred. I was there 
 almost daily when the court was in session, with a 
 
29 
 
 fair portion of business, and sometimes as a spec- 
 tator, for its proceedings always interested me. 
 
 Becoming Attorney-General necessarily I was 
 brought still nearer to the court, and had to watch 
 its proceedings closely. Among the first cases I 
 argued in the court as Attorney -General was Lamar 
 V. McCullough^ 115 U. S. 153, involving a large 
 amount for cotton seized and disposed of by the 
 government. The pleadings in the case were com- 
 plicated, and run into the utmost limits of the 
 common law system of pleadings. In preparing a 
 brief in the case I had a map, or so to speak, a 
 genealogical tree of the pleadings made up and at- 
 tached, and among the mass there were numerous 
 similiters {doth the like). I called the attention 
 of the court to these especially, and remarked, it 
 brought to mind an occasion in the United States 
 Court at Little Rock when Justice Miller first pre- 
 sided there! A most excellent lawyer and gentle- 
 man, Mr. Stillwell, arose on motion call and offered 
 to file a similiter in a certain case, and at once Mr. 
 Justice Miller shoved his docket in front and fell 
 back in his chair, and said, speaking a little above 
 a whisper, ' ' Clay (addressing District Judge Cald- 
 well, who sat with him, his name being Henry 
 Clay Caldwell, but his great many Iowa friends 
 
30 
 
 called him tenderly Clay), what is a similiter? I 
 have not heard of one for over twenty years !' ' and 
 to this Judge Caldwell replied, ' ' he did not know, 
 for he did not believe he had ever heard of one. ' ' 
 Judge Caldwell, I believe, had not then read Chitty 
 or any of the authors who ventured to tell of simi- 
 liters and such things, and there was little or noth- 
 ing in the Iowa code about them. During this 
 somewhat subdued colloquy, Mr. Stillwell waited 
 and looked set back, for fear he had offended against 
 some unknown and invisible spirit, when Mr. Justice 
 Miller remarked, ' ' well, Mr. Stillwell, you can file 
 it, and we will look into the thing and see what it 
 is." The court seemed to enjoy this no little, and 
 a Justice who sat next to the right of Judge Miller 
 in a voice loud enough to be heard from where I 
 stood, asked him if this was a true statement, and 
 he replied, " Oh, yes, but really I can't see how it 
 affects this case. ' ' 
 
 Thinking over this case, with its intricate and 
 complicated mass of pleadings, suggests that the 
 science of special pleadings is now fast becoming 
 one of the obsolete and unknown sciences, but it 
 does have a charm about it that survives to the 
 older lawyers who were disciplined in it. Its boast 
 and pride were to come to an issue single and ob- 
 
31 
 
 vious. In the yth volume of Robinson's Practice 
 (Appendix), is contained as sweet and finely pointed 
 a travesty, or parody in verse based upon young 
 love's dream, on special pleading as can be found. 
 It will strike tbe young barrister, who has his 
 sweetheart before he has his first case, or before he 
 has even his license — and many do that — with pecu- 
 liar force. I venture to append it to this paper, as 
 it may relieve and refresh the reader after going 
 through this dreary article, if he has nerve enough 
 to take him through. As said by Robinson, the 
 verses are curious as illustrating the early bent of a 
 great and original genius, and as showing the lan- 
 guage of special pleading is not incapable of adap- 
 tation to the emotions of the tender passion. It is 
 entitled the special pleader' s lament ! 
 
 The official business in my charge in the court 
 was large and important, but I had an efiicient and 
 strong corps of assistants with me, who looked after 
 the most of it, myself now and then attending to some 
 of the cases in person. I adopted a rule which I 
 thought was a good one, and I still think so, to 
 send with a case on appeal from any court in this 
 district the attorney who conducted it in the lower 
 court for the government, to the Supreme Court to 
 present it whoever else might be with him. I be- 
 
32 
 
 lieve the familiarity of the lawyer with the case in 
 the trial court was a great help to properly unfold 
 it in the Supreme Court, and certainly it was no 
 small advantage to that attorney. 
 
 Early in 1885 President Cleveland, at my solicita- 
 tion appointed the Hon. John Goode Solicitor-Gen- 
 eral, and he proved to be a faithful and very com- 
 petent officer, but the Senate failed to confirm the 
 nomination on account of Senator Mahone's oppo- 
 sition to Mr. Goode, and another had to be selected. 
 In casting around for one the name of Melville W. 
 Fuller was pressed, and I was requested by the 
 President to make enquiry and find out all I could 
 as to his fitness for the place, which I did, with as 
 much industry as I could command, but in the end 
 Mr. G. A. Jenks of Pennsylvania was selected. In a 
 short time thereafter, comparatively speaking, July 
 20th, 1888, Melville W. Fuller was appointed Chief 
 Justice of the United States, in place of Judge Waite 
 who had died, but did not take his seat till October 
 of that year. In the vicissitudes of life Melville W. 
 Fuller escaped being Solicitor-General, to fill one of 
 the very highest offices, if not the highest in the 
 land, and I believe all agree, that it was an appoint- 
 ment eminently fit to be made. 
 
 In November, 1885, Vice-President Hendricks 
 
33 
 
 died, only a few months after his inauguration as 
 the first Democratic Vice-President for twenty-five 
 years. He was an exemplary man in all relations 
 of life, and a safe, level-headed adviser at all times 
 in public and political matters. Those who knew 
 him best loved him. His loss was such I deemed 
 it my duty to call the attention of the Supreme 
 Court to the event, and the following proceedings 
 were had in that court November 30th, 1885. 
 
 Mr. Attorney-General Garland addressed the 
 court as follows : 
 
 " May it please the court : Since the adjournment 
 of this court on last Wednesday, the heart of the 
 nation has been sorely touched by the death of the 
 Vice-President, Thomas A. Hendricks. 
 
 "This is not a proper occa.sion to pronounce a 
 eulogy upon the useful life and splendid character 
 of Mr. Hendricks, but he has been so long con- 
 spicuous in the public service — has filled thoroughly 
 and admirably so many places of high trust, includ- 
 ing the second in rank in the gift of the people, 
 and he has been a prominent member of this bar for 
 so many years, I deem it becoming to request the 
 court to lay aside its docket and pause before this 
 sad event that now overshadows the whole country, 
 and out of respect for the memory of this " good 
 
34 
 
 and faithful servant, ' ' to cease its labors until after 
 the last funeral rites are performed on to-morrow ; 
 and I therefore suggest the court do now adjourn 
 until Thursday next. 
 
 ''And the Chief Justice directed the remarks to 
 be spread upon the record of the court, and ad- 
 journed as requested. ' ' 
 
 About one year after Mr. Hendricks' death, 
 Chester A. Arthur, ex-President, died, after serving 
 well and honorably nearly a full term as President. 
 He was a fair and just man and a most genial one. 
 It was a pleasure, in fact almost a treat, to have 
 business dealings with him, so kind and so affable 
 was he. He possessed the very rare faculty of mak- 
 ing you feel almost as happy when he could not 
 grant your request as when he could. I regarded 
 his death as an event important enough in the eyes 
 of the nation to authorize a notice of it by the Su- 
 preme Court, and accordingly, on Friday, November 
 19th, 1886, the following proceedings were had in 
 that court. 
 
 Mr. Attorney-General addressed the court as fol- 
 lows : 
 
 The President of the United States has by offi- 
 cial proclamation announced to the country the sad 
 intelligence of the death of Ex- President Chester 
 
35 
 
 A. Arthur, and pursuant to that proclamation the 
 executive branches of the government will be closed 
 on the day of the funeral, Monday next, the 22d 
 inst.; and in my official capacity as Attorney- 
 General, I make this announcement that the court 
 may pay a fitting tribute of respect to this eminent 
 citizen, and I therefore suggest to the court the 
 propriety of now adjourning until Tuesday next. 
 The Chief Justice replied as follows : 
 The court receives with sorrow the sad intelli- 
 gence, and in compliance with your suggestion will 
 now adjourn until Tuesday next, at 12 o'clock. 
 
 Chief Justice Waite presided for many years, 
 fairly, impartially and ably. President Grant had 
 difficulty in filling the place, and several of his 
 nominations were ignored and repudiated by the 
 Senate. Judge Waite was not extensively known 
 at the time of his nomination, and there were mis- 
 givings as to his fitness, but time showed the Presi- 
 dent had made no mistake in that. He was kind 
 and amiable and his executive ability in the dis- 
 charge of his duties was marked and rare. His 
 character was beautifully rounded up. I was much 
 attached to him and I can never mention his name 
 without the deepest emotion. It was sad, indeed 
 painful to see him in court the last day he ever 
 
36 
 
 attended when he was not able to read his opinion 
 in the Telephone cases (126 U. S.), and had to call 
 upon Judge Blatchford to read it for him. It was 
 evident to the observer death had almost placed its 
 hand upon him. He left the court room before the 
 session ended to return no more, and died within 
 a few days thereafter, March 23rd, 1888. 
 
 In the time of my service as Attorney-General it 
 was my sad lot to pronounce eulogies upon Justice 
 Woods, who died May 14, 1887, and Chief Justice 
 Waite, and while this was a sort of official duty, 
 yet I personally felt their loss, and my tributes, 
 though feeble, were honest words from the heart. 
 
 In my first annual report as Attorney-General to 
 the President, I advised the creating of the positions 
 of stenographers to the Judges of the Supreme 
 Court — one to each judge. I was satisfied this was, 
 as matters were then, a much needed measure, and 
 the pressure of business upon the judges would 
 never, in all probability, lessen the importance of it. 
 In strict fidelity to the truth of history. Congress 
 did not seem to be losing sleep at all, in order to 
 comply with my requests or suggestions. But in this 
 instance the advice was taken and the measure 
 passed, probably not so much for the reason it came 
 from me. But at all events I believe I did receive 
 the thanks and good wishes of nine very prominent 
 
37 
 
 officials, for even my feeble efforts to establish this 
 new but very wholesome provision, for the help- 
 ing on the goreat work of the judges in that court. 
 The four years passed away and my oflBcial ser- 
 vices concluded, without anything more of especial 
 personal experience to be told, until at the end when 
 I introduced my successor, Hon, Wm. H. H. Miller, 
 with his commission and tried to make a few re- 
 marks valedictory, when the Chief Justice pleas- 
 antly remarked they "would speed the parting guest 
 and welcome the coming." This sounded quite 
 well, indeed, but the more I thought of it, I felt 
 there was in it an expression of gladness at the 
 departure of the "parting guest," and I became 
 serious as I pondered over the word speedy speedy 
 and finally went round behind the seats of the 
 judges to consult large and comprehensive and un- 
 abridged volumes of Webster's and Worcester's dic- 
 tionaries as to the meaning of speedy and while 
 examining the word and just about settling down 
 on a somewhat satisfactory definition of it, Mr. Jus- 
 tice Harlan came along and exclaimed somewhat 
 quisically, "Why, how is the parting guest?" 
 " Thinks I to myself, " now can it be that he thinks 
 the address of the Chief was an expression of a de- 
 sire for me to depart! I was sensitive about that 
 time. Then I sat to looking at the word speed again. 
 
38 
 
 and I found, to help onward^ to push rapidly^ to 
 cause to prosper. Oh, on seeing this last {cause to 
 prosper) that struck me as what the Chief meant. 
 I might well be excused for halting and doubting 
 a little on this, for Pope, dealing with the same sen- 
 timent, does not express it exactly the same at all 
 times, but makes it different. First he says: 
 
 For I hold sage Homer's rule the best. 
 Welcome the coming, speed the parting guest. 
 
 Here he plants on Homer, but we all know Homer 
 was unfortunate in welcome and in friendship — 
 
 ' ' Seven wealthy towns contend for Homer dead 
 Through which the living Homer begged his bread." 
 
 And Pope again said: 
 
 True friendship's laws are by this rule exprest, 
 Welcome the coming, speed the parting guest. ' 
 
 All in all I was perfectly willing to believe the 
 Chief meant under true friendship's laws to cause 
 the parting guest to prosper. This construction of 
 the words of the Chief I concluded as just, for two 
 reasons ; first, the rule is when words are susceptible 
 of two constructions, take the gentler or softer and 
 most benign : — Pope had put it "true friendship's 
 laws. ' ' Second, I wanted it that way, for it is true 
 
39 
 
 in all struggles of this sort we will adopt that course 
 or idea that is best and most comfortable and sooth- 
 ing to our feelings. I put the dictionaries back and 
 feeling somewhat at ease and composed, I proceeded 
 to the clerk's office for my hat and overcoat where 
 I had left them before entering into the court room, 
 and as I got in full view of the occupants of the 
 clerk's office, all of them with one voice as if by 
 concert, exclaimed : ' ' Oh, yes, the Chief and the 
 court want to get rid of you, good!" Here it was 
 again — how brief is our comfort and how fleeting our 
 hopes. But as time has run on, I really believe 
 the Chief was not anxious to be rid of me — at least 
 I give him the benefit of the doubt. 
 
 Not many weeks after my retiring from the po- 
 sition of Attorney-General and offering my profes- 
 sional services to the public as a private lawyer citi- 
 zen, I was engaged by a very excellent lawyer in 
 California to look into a case just recently decided 
 by the court adversely to his client and move for a 
 rehearing. This lawyer's soul was wrapped up in 
 the case, and he was much surprised and grieved at 
 the decision as lawyers generally are who lose their 
 cases, and he was extremely solicitous about the 
 matter. 
 
 The rule of the court as to petitions for a rehear- 
 
40 
 
 ing is somewhat nebulous and unsatisfactory (more 
 of this hereafter), but there was something then so 
 urgent about this case, an early adjournment being 
 upon us^ I went to the court, intending to step out 
 of the rule just a little as it appeared to me this was 
 an exceptional occasion. The day was wet and 
 cold and forbidding extremely — hardly alligators 
 would venture from their dens and beds on such a 
 day, but the court room was well filled with law- 
 yers as it was about winding-up-time of the term 
 with the court. " On motion call I arose and offered 
 to present a motion for a rehearing of the case, and 
 was about to proceed to make a few "brief remarks" 
 when Justice Bradley started as if powder had ex- 
 ploded under his seat, and with much spirit said: 
 ' ' What is that ?' ' I repeated what I was seeking to 
 do, and then he turned somewhat pale and remon- 
 strated with much spirit, and told how hard the 
 court labored at cases — how closely the judges con- 
 sulted — how wearied they were with these applica- 
 tions for rehearing after all their intense work to 
 arrive at conclusions — how the House of Lords dis- 
 posed of such things, and growing warmer and 
 warmer, how inappropriate it was in lawyers to be 
 asking the court to travel over all this work again, 
 and many other things not now well remembered, as 
 
41 
 
 my mind just at these utterances was not as clear as 
 the often alluded to noonday sun. What astonished 
 me more was that Justice Bradley had not delivered 
 the opinion of the court, but Justice Miller had, and 
 as I thought the storm was lulling and almost lulled. 
 Justice Miller with his usual scratch over his right 
 ear, when he was getting ready to charge, came to 
 Justice Bradley's aid, and really it occurred to me 
 it was superfluous as Justice Bradley then needed no 
 aid; — he was not the suffering one; — then Justice 
 Field, with more moderation gave me a lecture 
 upon the error of such a course, and I did wish that 
 night or Blucher would come. I looked in vain for 
 a friend at court. The Chief Justice looked as if 
 he would say something consoling to me — sympa- 
 thetic as it were, but he had not been there very 
 long and probably he did not wish to appear too 
 previous, and he did not say it. I thought, too. 
 Justice Harlan once looked like he would help me, 
 but he fell back and sent out a note to some one 
 else. I fought nobly I thought, but it was uphill 
 and against decided odds, and I was somewhat 
 routed and driven back almost in dismay, and the 
 lawyers present did enjoy it; — it did them good as 
 it always does, notwithstanding their so-called 
 clannishness, to see the court pounce down upon 
 and shake up a brother lawyer. 
 
42 
 
 In vain I told Judge Bradley how Chief Justice 
 Marshall liked to have cases reargued, as I had 
 heard he was preparing a life of the great Chief 
 Justice, but that didn't appease his fierce spirit, 
 and in vain I pleaded that the House of Lords was 
 no court compared with this, and that he was big- 
 ger than any lord of that sort, and while this seemed 
 to tickle him he did not let up entirely. The mo- 
 tion was received, looked into, as it was said and 
 denied. At th« conclusion of the struggle Mr. 
 Justice Bradley did say, I had always been loyal to 
 the court, or words to that effect — a small salve to 
 the wounds he had given. He seemed to intimate 
 that what he had done was more in sorrow than in 
 anger, probably angered sorrow or sorrowed anger 
 as the case may be. 
 
 After an unusrtal amount of comment on the 
 scene in the clerk's office, with lawyers, officers and 
 judges, I departed for my home, and in going out of 
 the building Justice Bradley and I were brought in 
 direct meeting, he making for his home, and he 
 said, " Oh, see here, Garland, although I talked so 
 this morning you were not the one I was after, but 
 you presented a matter we were being deviled about 
 in another direction, and I took this occasion to say 
 what I desired to say on the subject." "Well," 
 
43 
 
 said I, "Judge, this is a sort of vicarious punish- 
 ment that is somewhat rough, and you know how 
 the question of vicarious punishment disturbs the 
 world any how." "Oh, well," said he, "it is all 
 right and you can stand it, and you made such a 
 fight your client cannot nor can anybody else com- 
 plain." "But," said I, "Judge, you did it with 
 such a flourish. " And he stopped and said, " I may 
 have been excited, but then we are tried almost be- 
 yond endurance on such things, and come get in 
 my carriage and I will drive you home. ' ' True his 
 words were somewhat assuaging, but I did not come 
 up quite to their import, and I did not ride in his 
 carriage, as I was not used to that kind of riding, 
 and I had two or three stops to make on my way 
 home, and we parted thus. Not long after this 
 that earnest, learned old man closed his labors 
 and was no more. He had honored, in truth and 
 in fact, a place on the bench for many years, and it 
 is doubtful if ever a man sat in that tribunal who 
 knew more law and more sorts of law than he. 
 His nature was earnest and ardent, and he knew 
 no half-way ground or half-way methods. The 
 episode between him and myself above described 
 left no scar or sign of one with either of us. 
 
 Mr. Justice Field served over thirty-four years on 
 
44 
 
 the bench, longer than any other judge served, and 
 Chief Justice Marshall next. Judge Field resigned 
 last winter, and is now in honorable retirement at 
 his residence on Capitol Hill, in this city. 
 
 On May ist, 1890, I had the pleasure and honor 
 of moving the admission of Grover Cleveland to 
 the bar of the court, after he had served four years 
 as President of the United States. He had vouched 
 for me as an attorney for four years before the coun- 
 try, and I could readily and cordially endorse him 
 as an attorney of that court. This is the only in- 
 stance of an ex-President of the United States be- 
 ing admitted to practice in the court. John Quincy 
 Adams was admitted on February 7th, 1804, before 
 he was President, and practiced there after he 
 ceased to be President. President Benjamin Har- 
 rison was admitted long before he became President 
 and he continues to practice there since he retired 
 from the Presidency. 
 
 I have continued to practice in the court regu- 
 larly to this day, some times with success, some 
 times otherwise, and when successful the court al- 
 ways appeared to me sound and capable, but when 
 not successful the court seemed to me to have lost 
 ground and fallen below the mark ; perhaps this is 
 
45 
 
 natural, for it has been truly said, none are so wise 
 and so good as those who agree with us. 
 
 No events with me in the court worthy of special 
 note have occurred since the tilt I had with Justice 
 Bradley, and that was such as to live and last a 
 good while. My experience since has been that of 
 a constant practitioner, attending the court as regu- 
 larly as I could and studying its organization, work- 
 ings and methods, for in it had been centered from 
 an early day much of my hopes and ambition, and 
 even long after I came to the United States Senate 
 I was wont to go there just to see if I had letters 
 addressed to me there, and to mingle with the offi- 
 cials, even when the court was not in session. 
 
 It is a great court — Supreme Court, none higher — 
 great court in its conception, in its make up and in 
 its jurisdiction, and at no time in its history has it 
 failed to be an able court, and fully up to the pur- 
 poses of its creation. We all, at times fall beneath 
 its utterances, and then we do not feel it is able, 
 but when the excitement and irritation of defeat 
 pass away we do regard it as able. Probably in the 
 nature of things, if there were yet a higher appel- 
 late tribunal this Supreme Court would be reversed 
 quite as often as the inferior courts are now re- 
 versed by it. Law is not of what we call the ex- 
 
46 
 
 act sciences, and there are many propositions men 
 will differ about, not so much in their theory as in 
 their application to a particular state of facts. But 
 there is one thing I have observed as to its decis- 
 ions, and that is, leaving out the views of defeated 
 counsel and party, they generally, in a great ma- 
 jority of instances, meet with the approval of the 
 profession. I have t'aken some pains to test this, 
 and I am satisfied I am correct in the statement. 
 
 There is, I think, of late years, and it seems to 
 be growing, an undue haste on the part of the court 
 in hearing and disposing of motions. While it is 
 not true in point of fact, the court looks on motions 
 filed with some suspicion, frequently errors are com- 
 mitted and injiistice done by not receiving and list- 
 ening to motions with more patience than seems to 
 be exercised in such matters. A little more time 
 spent in hearing these would serve, it seems to me, 
 to dispose of business more satisfactorily than such 
 haste would. Chief Justice Taney was in the 
 habit of saying to a gentleman on presenting mo- 
 tions when explaining the same, "And let us un- 
 derstand this, take your time and explain it." This 
 was right and made the attorney feel at home, and 
 court and counsel understood each other, and things 
 went well and smoothly. Very often I have seen 
 
47 
 
 lawyers high up in their profession, but not used 
 to the ways and manners of this court in this re- 
 spect, frightened, so to speak, out of their wits 
 into forgetfulness of the entire case, when suddenly 
 pulled up by the court to know this or that before 
 they had time to tell anything of it, and when they 
 were getting ready to tell it. This is probably due, 
 to a great extent, to the heretofore over-choked and 
 charged condition of the business of the court. 
 
 The gorged condition of the docket has for the 
 past several years been much relieved, under the 
 workings of the Circuit Court of Appeals Act, March 
 3, 1891, and the Court need not be so restless under 
 the pressure of a docket, which amounts in the ag- 
 gregate at the beginning of the term in October, 
 to some five hundred cases instead of three times 
 that number before that law was passed. This act 
 has done well, I think, in the main, and has con- 
 tributed much to bring justice as near as may be to 
 each man's door, the chief wish of all great law- 
 givers from Moses, Justinian, Alfred and Frederick 
 down to the present day. What supposed infirmities 
 there are in that act are to be discussed before the 
 law-making power and there cared for, and are not 
 proper subjects of debate here. 
 
 Under rule six, paragraph two, an hour on each 
 
48 
 
 side is allowed, for the argument of a motion, and 
 no more, without special leave of the court granted 
 before the argument begins. This never occurred 
 to me as a wise rule. The court should hold this 
 matter in its own hand. While it is true motions 
 generally can be fully argued in one-half of this 
 time, yet there are occasions when motions involve 
 great questions that go almost to the bottom of the 
 case and more time should be allowed. 
 
 As a general proposition this time is too much, 
 but the court can control it and ought to. Many 
 inexperienced persons seem to think they must take 
 the entire hour, and others shrink under the restric- 
 tion, and spend much of the time in looking up at 
 the clock to see how time flies. Burton, in his 
 Anatomy of Melancholy, tells of a man who was 
 born in the limits of the city of L^ondon, and lived 
 there to be ninety-nine years old, and had never 
 been once out of those limits, and the city council 
 fearing he might some time do so, and wanting to 
 have him as a curiosity that never was beyond the 
 city limits to the age of one hundred years, passed an 
 ordinance forbidding his going out of the city limits 
 before he reached the age of one. hundred. The 
 man had never entertained the idea of going out of 
 the city limits at all, but seeing his liberty was re- 
 
49 
 
 stricted, he grew sad and melancholy, sickened and 
 languished, and languishing did die before he reached 
 one hundred. While I have not heard of any law- 
 yers dying under this limitation upon their speak- 
 ing, yet I have known some to grow melancholy 
 and sicken under it, and I thought, at times, the 
 Court was not helped by the workings of the rule. 
 
 These remarks are applicable, in great measure, 
 to the other rule 20, par. 3, allowing two hours to 
 a side only, unless more is granted before argument 
 begins, in arguing a case upon the merits. In re- 
 ferring to these matters I am not giving out any 
 complaint on grievances personal, as I have never 
 yet, in presenting or offering motions or cases upon 
 their merits, exhausted the time allowed me under 
 the rules, but the effects are not the same on all 
 counsel. 
 
 Justice Nelson had a plan of taking his record 
 when a case was on hearing, and finding the point 
 or points involved, or on which he wanted argument, 
 would say to the counsel speaking, ' ' Now, what as 
 
 to this, on page ? ' ' then he would note down 
 
 there what was said in response and would proceed, 
 
 ' ' Well, there on page is this, what about that ?' ' 
 
 carefully noting what was replied, and so on until 
 he got at what he desired, and he would fold up his 
 3 
 
50 
 
 record and lay it aside, saying generally, " I have 
 heard all I want. ' ' Then if the attorney was ob- 
 servant and cute he would quit, but may be he 
 would not. But the point is, with all the labor of 
 preparing and filing briefs in cases, this sort of col- 
 loquy with the judges and lawyers is the shortest 
 and best way to reach the very heart of the case. 
 The largest records used to crumble and fall to 
 pieces when Judge Curtis or Reverdy Johnson or 
 Jere Black would handle them for about three- 
 fourths of an hour, and rarely ever over an hour. 
 All lawyers are not such as these, but it shows what 
 can and might be done in such cases. This, though 
 like many other matters of practice, is to be under- 
 stood and enforced by a direct comity of the court 
 and counsel ; they should and ought to get closer 
 together and not stand apart so far, as lawyers are 
 part of the court naturally and justly. Ex parte 
 Garland said that directly, and being so they should 
 come close to the court and the court to them, and 
 allow no room for a suspicion that one was trying 
 to trick or outwit the other. 
 
 Speaking of briefs, rule twenty-one of the court 
 would appear to be about as good and as apt as a rule 
 on this subject can be, and it seems to have in view, 
 in presenting their argument sure enough, counsel 
 
51 
 
 should use, as Henry Spelman expressed it, honest 
 and perspicuous words to express the thing inten- 
 ded with all brevity. This rule is much honored 
 in the breach ! too much, and the court should not 
 permit it. Not unfrequently we see, not briefs, 
 but long essays, even books put in cases, drawing im- 
 mensely upon the time of the court to wade through 
 them, which if done would, not unfrequently, leave 
 the judges with vertigo or strabismus. The rule 
 does not require or desire such large or lengthened 
 efforts. It is true, briefs could not be limited to so 
 many pages, but where they cite and recite cases 
 and points, iteration and reiteration, with long pas- 
 sages copied from books, the court could order them 
 withdrawn and direct the filing of briefs, in fact, ac- 
 cording to the rule. I walked into the court on one 
 occasion and Jere Black was just beginning to ad- 
 dress the court, and he was saying, "he had not 
 prepared any brief in the case, but his colleague 
 had filed a short one of some several hundred pages, 
 and he supposed that would cover the case if noth- 
 ing else;" the court smiled audibly at this, and Mr. 
 Black proceeded to argue the case. 
 
 This same rule as to briefs (paragraph i) is defec- 
 tive, in my opinion, in fixing at least six days be- 
 fore argument of a case when the appellant or 
 
52 
 
 plaintiff in error shall file his brief. Having all 
 the time from the filing of the record to prepare and 
 file a brief he should be required to do it some time 
 before this. What is not relied on outside of a jur- 
 isdictional question the court heeds not and hears 
 not, and hence the appellee, or defendant in error 
 should have ample time, not merely the three days 
 allowed him under the rule to reply. For, of course, 
 much depends on these briefs, or ought to. Then 
 to this reply brief the other side has the right to 
 rejoin. The time allowed all around is whittled 
 and driveled away, and often the rule is not ob- 
 served or attended to. The time allowed to both 
 sides should be enlarged and the rule rigidly en- 
 forced. When a party files his brief with the clerk 
 they should be required to send a copy to the oppo- 
 site party or his attorney at once; as it is, the brief 
 is simply placed with the clerk and it is not his 
 duty to furnish the other side with one. This would 
 be fair and just, as well as a decorous practice, and 
 would prevent, if adopted, frequent appeals to the 
 court for further time, and would expedite, no doubt, 
 to a great extent, the hearing of cases. 
 
 I have said already the rule as to rehearing (rule 
 30) is nebulous. I think I speak the truth, the rule 
 is not satisfactory to the practitioners before the 
 
53 
 
 court, and a better one should be adopted for the 
 proper dispatch of business, with more satisfaction 
 to the judges. It provides no way of filing the 
 motion or petition for rehearing, or of bringing it 
 to the attention of the court, and it is not allowed or 
 permitted to be argued unless a justice who con- 
 curred in the judgment desires it. By a practice that 
 has grown up in the court, the petition is handed to 
 the clerk, and he slips it in by some process to the 
 judges, and they pass on it, in conference it is sup- 
 posed, and slip it back to the clerk. It comes in some- 
 thing as a thief at night, and when refused, as it most 
 generally is, it is endorsed denied^ when the party 
 offering it is notified, but no proceeding is had in 
 open court as to it. If it is to be argued, order is 
 made and time and terms fixed — if it is granted out- 
 right, the order is announced and time and term 
 fixed for another argument of the case. Upon a 
 fair calculation there are about two petitions granted 
 out of fifty-seven filed. Petitions for rehearing, or 
 motions for new trials are supposed to gather up 
 the whole case and present it compactly and 
 broadly. This is the great sphere where lawyers 
 are really to show their strength and power and 
 knowledge, and where the courts are at last brought 
 face to face with the very kernel of the case, and after 
 
54 
 
 all, where upon consultation with counsel, after 
 each has spoken and been heard, they are to exam- 
 ine profoundly and see what the case does really 
 call for. These petitions or motions should be filed 
 in open court, and they should be argued. This 
 rule further requires a certificate of counsel filing 
 it that it is offered in good faith, and that he (coun- 
 sel) believes it is meritorious. Making all due 
 allowance for the partiality of counsel for his cause, 
 it cannot be believed one worthy to practice in that 
 court would file these petitions for his health, or for 
 fun or any frivolous cause or reason. The bar can be 
 trusted not to overdo this work, or to trespass too 
 much upon the time and patience of the court. 
 Every experienced lawyer knows that he may 
 work and toil with a case for years, and at last 
 when it is decided, he can see where possibly he 
 made mistakes, and where he finds new points and 
 ideas, and he could improve upon his work if tried 
 over. This is true as to both sides of the case. And 
 I am of opinion there are very few hotly contested 
 cases in which a court, even after hearing argument 
 and after close examination may not feel its judg- 
 ment may be wrong. Of course there is, as in all 
 things, a proper medium to be observed here, and 
 the court had better commit an error against time 
 
55 
 
 than even to stand in doubt at last, whether they 
 have not committed an error against the law of the 
 case. And it seems the court should pass upon 
 these petitions by regular opinion to form a part of 
 the reports of the court. This would be a full and 
 complete course of fair and just legal proceedings 
 growing out of this right to ask for a rehearing. 
 
 Another idea occurs in this connection. On the 
 last day of the term there are generally many opin- 
 ions delivered, and as it is, the losing party has no 
 chance or opportunity to ask for a rehearing or 
 modification of the judgment of tlie court. He can 
 only request the court to stay the mandate for a cer- 
 tain time that he may be enabled to examine and 
 see if he cares to ask for a rehearing or modifica- 
 tion. There should be a general rule as to all cases 
 decided on the last day, providing for time to ex- 
 amine and to send a petition for rehearing or modi- 
 fication, in some way, to the Chief Justice for him 
 to take such steps as he might see proper in order 
 to get action of the other judges upon the subject. 
 
 In the records of events, in the past, there may 
 be some precedents worthy of notice here. 
 
 Stowelv. Zouch^ in Plowden, was argued twice in 
 the C. B. , and twice in the Exchequer Chamber be- 
 fore all the judges in England. 
 
56 
 
 Calvin's case, in Coke, was argued first at the bar 
 of the K. B. by counsel, then in Exchequer Cham- 
 ber, first by counsel and then by all the judges : — 
 it was afterwards argued by counsel at two different 
 times, and then by all the judges at the next term 
 upon four different days, and then at another term 
 thereafter by all the judges upon four different days. 
 Manby df Richards v. Scott, in Ivcvinz, was argued 
 at the bar three several times, by distinct counsel 
 each time, and afterwards by all the judges at the 
 bench. It was quite common in former times to 
 have a case spoken to at two, three and four several 
 times, and each time at a different term. These re- 
 arguments sometimes were had before judgment. 
 And this court in cases of very great importance 
 has, on many occasions, ordered on its motion re- 
 arguments before judgment. 
 
 In Willes's Reports we find a case argued five dis- 
 tinct times and different terms. Not until lyord 
 Mansfield's time that such repeated arguments 
 were done away with. Chancellor Kent thought 
 there were some advantages attending repeated dis- 
 cussions which somewhat compensated for the de- 
 lay and expense : — they tended to dissipate shadows 
 and doubts, and to unite the opinions on the bench, 
 and to prevent that constant division among judges 
 
57 
 
 which has much weakened the aiithority of some of 
 our American courts. 
 
 Probably it is not well to have as much as all that 
 is stated above as to reargument, by no means; but 
 still in leading or great cases, in principle or 
 amount involved, time is not lost in having the 
 court reaffirmed by reargument, or its judgment 
 set aside if found on reargument to be incorrect. 
 We see in this court and in all courts, decisions re- 
 versed and set aside years after the law was sup- 
 posed to be settled. There are many striking cases 
 in this list in this court, but there is one of pecu- 
 liar force and I will note it. Giles v. Little^ 104 U. 
 S. (decided October Term, 1881), after standing as 
 law for twelve years was expressly overruled in 
 Roberts v. Lewis^ 153 U. S. 367, both cases arising 
 on the construction of the will of Jacob Dawson, of 
 Nebraska. There was no dissenting opinion in 
 eithe r case. Of the justices who sat in Giles v. Little, 
 Field, Harlan and Gray remained to pass upon 
 Roberts v. Lewis, Justice Gray delivering the opin- 
 ion of the court ! With this, and there are others 
 equally as conspicuous, lawyers need not be abashed 
 to make an effort even after decision when no rear- 
 gument was had. Lord Eldon was accused of being 
 tardy in disposing of cases, and to such an extent 
 
58 
 
 it was said he was oyer sans terminer : Sir John 
 Leach, master of the rolls, was expeditious, so 
 much so, he was said to be terminer sans oyer^ and 
 Samuel Romilly said he preferred the tardy justice 
 of Lord Eldon to the swift injustice of the deputy. 
 The opinions of the court are, as a rule, too long. 
 The court is not intended to be a law school in 
 which the judges are to deliver law lectures. When 
 a controversy between parties comes before the 
 court, it is enough to state just what the law is in 
 that case, upon its facts. A simple resolution find- 
 ing, a^ the facts are such and such, the law is thus 
 and so, and there stop. It is a dangerous business 
 for a judge or any one handling a subject to say 
 more than is absolutely necessary to reach and make 
 known the merits. An attempt of this sort ac- 
 counts for so many obiter dicta that we encounter in 
 opinions. The object of a judicial proceeding is 
 merely the restoration of a violated right, and no 
 more is needed to be said than what can ascertain 
 and fix the right in dispute. More than this is apt 
 to be misleading, and it multiplies law books to 
 such an extent as to render impossible at this day, 
 for lawyers to have even a fair law library of the 
 Reports, to say nothing of the time wasted by 
 judges in preparing and getting ready these essays. 
 
59 
 
 I am persuaded, after a long and close considera- 
 tion of the matter, the publishing and making 
 known dissenting opinions is not a good practice. 
 It has its advocates, however, and they have their 
 reasons, too, but I think it should not be known to 
 the world if there is a diflFerence among the judges, 
 but the opinion should go forth and stand as that 
 of the whole court. If, as contended for above, 
 the object is to settle the right involved in a partic- 
 ular controversy, what do we care, or what should 
 we care for anything but the opinion of the court ? 
 It is the opinion of the court we want, and when 
 that is given as such, of the whole court, it carries 
 weight and is calculated to determine the question 
 and quiet it against any further dispute or agitation. 
 Dissenting opinions only add to the bulk of the 
 volumes of reports, take up much valuable time 
 and weaken the force of the judgment of the court. 
 I have already spoken of the importance of unan- 
 imity, or at least the appearance of it as far as the 
 outer world is concerned. In Miller v. Taylor^ 4 
 Burrows Rep. 2395, we find language of Lord 
 Mansfield that may be well to note here. 
 
 Lord Mansfield (not intending to go into the argu- 
 ment) said : ' ' This is the first instance of a final dif- 
 ference of opinion in this court since I sat here. 
 
60 
 
 Every order, rule, judgment and opinion has hith- 
 erto been unanimous. 
 
 That *unaniniity never could have happened, if 
 we did not among ourselves communicate our sen- 
 timents with great freedom; and if we did not 
 form our judgments without any prepossession 
 to first thoughts; if we were not always open to 
 conviction and ready to yield to each other's rea- 
 sons. 
 
 We have all equally endeavored at that unani- 
 mity upon this occasion; we have talked the mat- 
 ter over several times. I have communicated my 
 thoughts at large, in writing; and I have read the 
 three arguments which have been now delivered. 
 In short we have equally tried to convince or be 
 
 * Except in this and one other case now depending (by writ 
 of error) in the House of Lords, where Mr. Justice Yates dif- 
 fered from the other three, every rule, order,' judgment and 
 opinion, has to this day been (as far as I can recollect) unani- 
 mous. This gives weight and dispatch to the decisions, cer- 
 tainly to the law and infinite satisfaction to the suitors ; and the 
 effect is seen by that immense business which flows from all 
 parts into this channel, and which we who have long known 
 Westminster Hall behold with astonishment ; the rather, as dur- 
 ing this period all other courts have been filled with judges of 
 unquestionable integrity, eminent talents and distinguished 
 ability. 
 
61 
 
 convinced; but in vain. We continue to differ. 
 And whoever is .right, each is bound to abide by 
 and deliver that opinion which he has formed upon 
 the fullest examination. ' ' 
 
 His lordship observed that to repeat the two first 
 arguments or go over the same topics again, would 
 be idle and nugatory, when he had already de- 
 clared "that he read, approved and previously con- 
 curred in them," and to be particular in opposing 
 or answering the several parts of the last argument 
 (though he differed from the conclusions of it), would 
 be indecent and look too much like altercation. 
 
 I do not pretend to say or to intimate, the judges 
 do not labor anxiously and often painfully to agree 
 and be unanimous, but on the contraryl know they 
 do. Often and often in coming out of the conference 
 or consultation room they look worn and fatigued, 
 and as if they had been on rides on bicycles, or had 
 just returned from participating in a game of foot- 
 ball in the most approved modern style, or in 
 a game of golf igoff). I do know they struggle 
 to come together and it is not possible to do so in 
 all cases, but \1 do think the disagreement should 
 be known to themselves only, and the judgment of 
 the majority should go to the public, as that of the 
 entire court. 
 
62 
 
 I understand Louisiana has of late put an inhi- 
 bition upon this practice, but I have not examined 
 the provision of the law. 
 
 The hour of the meeting of the court does not 
 seem to me to be a good one. I should rather think 
 it should commence at ten and one-half A. M. and 
 sit till one P. M. and then take a recess for an hour 
 for refreshments and rest, and then sit from two till 
 four: — this brings in four and one-half hours of 
 hearing and doing court business, and this would 
 be sufficient. There is no peculiar force or en- 
 chantment in four hours, and four and one-half could 
 well be substituted. Meeting as the court does 
 now at twelve M. , in the course of an hour the 
 judges show signs of weariness and fatigue, and 
 commence one by one to retire to lunch and some- 
 times barely a quorum is left ; even Mr. Reed, the 
 speaker, with his well known acuteness and adroit- 
 ness to find a quorum would be puzzled at times 
 to establish the existence of one. And it is true 
 that at the hour from one to two sometimes we do 
 find some of the judges unavoidably 
 
 " Napping, napping, only this 
 And nothins: more." 
 
 The lunch they manage to snatch the way they 
 are now situated can not be very satisfactory. Be- 
 
63 
 
 hind their seats, where persons are passing to and 
 fro, a sort of ad interim or pro tempore restaurant is 
 in progress, and counsel is arguing in front and hears 
 the rattle of dishes, knives and forks, and the judges 
 eating are in a state of unrest, to eat and get back. 
 Of all things eating should be allowed full time 
 and ease. To meet at ten and one-half when the 
 system is comparatively fresh, alive and active, and 
 not yet vexed by work or study, much work can 
 be done till one. And then all may go and recreate 
 and refresh themselves decently and in order, and 
 resume work, not in a doze or a half awake and half 
 asleep condition, but invigorated and reinforced. 
 There is plenty of time in the meanwhile, with 
 Saturdays entirely given to that purpose, for confer- 
 ence and consultation.* 
 
 During the history of the court there have been 
 several painful instances of the secrets of the court 
 getting out, in the way of telling how certain cases 
 are going to be decided — what is called leaks. It is 
 really surprising there have not been more. The 
 pressure to get at decisions in advance in important 
 
 * Since this was written the court has made a rule to sit till 
 2 P. M. and then recess for half an hour and resume till 4.30 
 P. M,, but I think this is not as good an arrangement as the one 
 here proposed would be. 
 
64 
 
 cases, is frequently unceasing and anxious, and at 
 times the most ceaseless vigilance cannot escape 
 it. The seekers after this information evince 
 the knowledge of the scientists, who from a small 
 bone or ligament work up to and find out the kind of 
 huge animal from which it comes — they, from an 
 item or two dropped inadvertently, make up a re- 
 port of large proportions, of more or less accuracy 
 or verity, that shakes up the public no little. But 
 the judges are very cautious and quite reticent, al- 
 though often pumped and tapped. 
 
 It chanced one Monday — opinion day — as I was 
 going up to the court in company with Mr. Justice 
 Brown, I asked if there would be many, or any 
 opinions on that day, and he said yes, there would 
 be several, and named some of the cases that 
 would be decided, but in no wise intimating how 
 they would be decided. We were rising on the 
 eastern "brink of the hill ascending towards the 
 Capitol, and I asked, I wonder if Stanley v. Schwal- 
 by, a easel was much interested in, would be among 
 them, and at once he said, " Mr. Garland, how 
 lovely those little flowers (calling some^ name bo- 
 tanical, I suppose, I was not in the least familiar 
 with, and pointing to some yellow buds just open- 
 ing to oiir left) are when they first appear. " I re- 
 
65 
 
 plied, "Oh, beautiful indeed," but I wondered with- 
 in myself, what that had to do with Stanley v. 
 Schwalby. We went in to the court-room saying but 
 little after that. Opinions being called for after the 
 meeting of the court, Mr. Justice Brown's time 
 came to speak for the court and he delivered some 
 opinions, and finally the chief justice spoke out he 
 was directed to announce the opinion of the court 
 in Stanley v. Schwalby (147 U. S. 508). My sensa- 
 tions were not pleasing at all, and were of a very 
 doubtful and fluctuating character. He had not 
 read far before I saw my hopes in that case were 
 shattered. I was defeated, and then I could not help 
 thinking of the lovely flowers which were blooming 
 on our left as Mr. Justice Brown and I were coming 
 up, and I thought they were not lovely but quite 
 common, and that there was nothing attractive 
 about them. This was as near a leak in one of the 
 judges as I ever saw, and this was quite far from 
 one. But I have never inquired more of any one 
 of them, a Doev. i?o^ or any other case was coming 
 up for decision, but have ever since waited patiently 
 or impatiently as the case may be. 
 
 Traditions and customs are adhered to and up- 
 held with great precision, and probably it is well. 
 This tribunal sits as a free and independent branch 
 
66 
 
 of the government, and it shonld have its insignia 
 and devicesto fix it and to have respect deep-founded 
 for it. While it should not stand out too far from 
 lawyers and the people, it must of necessity be fixed 
 and steadfast in things pertaining to it in the some- 
 what ancient ways. Its chief justice is chief justice 
 of the Unitedj^States and not merely chief justice of 
 that court, thus is his office national and not merely 
 local with the "court. Many of the old forms of 
 writs and process are, in so many words used, 
 and no one can question or interfere with them. 
 The court is opened with the old invocation of 
 "God save the United States and this Honorable 
 Court, ' ' which is sometimes understood by persons 
 hard of hearing, or of a malicious turn of mind, to 
 be God save the United States from this Honorable 
 Court. But this is a mistake. 
 
 As the judges approach, the lawyers and audience 
 are expected to rise, stand until the judges reach 
 their places and a respectful bow all round is in 
 order and the judges are seated and the opening 
 proclamation made. This solemnity is impressed 
 upon'the proceedings, and'men are made to know a 
 great tribunal is now to work upon great things and 
 great ideas. 
 
 With all this the judges are robed in dark flowing 
 
67 
 
 gowns whicli seem to ' 'make assurance double sure, ' ' 
 that all will be conducted with due formality and 
 order. To the young attorney first coming into the 
 court, these gowns strike wonder and almost awe, 
 and make him feel not as much at home as he would 
 like to. No law or rule provides for the use of these 
 gowns, but by custom, to the contrary of which the 
 memory of man runneth not, etc. , they have been 
 used, and while they are not actually necessary for 
 any practical purpose, and may probably be con- 
 sidered by some as contrary to the spirit of our insti- 
 tutions of democratic simplicity, yet they are harm- 
 less, and do make a feeling of respect for the 
 court that might not be without them. 
 
 Mr. Justice Miller never tired of telling the story, 
 of how Mr. Lincoln, at a reception, meeting him as 
 he came in, compared the judges, with their long 
 black gowns, to those long-winged black ants that 
 fly out from under the bark of certain trees the 
 season after they were cut down on the farms. Mr. 
 Justice Miller thought the comparison good and 
 fitting, but ifmay be, as he was reared on a farm, it 
 had a smack of farm to him that others not so 
 reared might not relish. 
 
 There is an implacable antipathy, like unto that 
 of Hannibal against the Romans, on the part of the 
 
68 
 
 judges towards the appearing of attorneys before 
 the court in coats not black. They do not regard 
 especially the color of the other garments, but woe 
 unto him who comes in with other than a black 
 coat on. I have several times seen attorneys first 
 coming there, in a coat not black, or of many colors, 
 almost stripped in the clerk's ofl&ce before the meet- 
 ing of the court and encased in a deep black coat 
 borrowed, to suit the occasion. This kind of coat 
 is not unlike to the judges the noted red flannel 
 hung out before a certain animal to infuriate and 
 make him mad. Joseph's old coat"would have been 
 torn to tatters if it ever came into that presence on 
 the back of an attorney appearing there. 
 
 It must not be inferred the judges never unbend 
 and become jocose and mirthful. When without 
 these robes and not at work, they are as lively a 
 set and can punch each other and their friends 
 about as well as any body or bodies you ever saw, 
 and if a man has a weak or raw place about him 
 they find it, and send an unerring shaft right there. 
 Mr. Justice Blatchford, with very serious counte- 
 nance, congratulated Judge Howell Jackson on his 
 coming in to take his seat as a justice of that court, 
 that he had not graduated at Harvard, while stand- 
 ing around close to him were several justices who 
 
69 
 
 were proud of that honor. Not unfrequently do 
 they, from the bench, send forth a witticism that 
 strikes and cuts as it flies. Mr. Justice Gray, when 
 an attorney was speaking, and exhibiting a map as 
 giving '' a bird's-eye view'' of certain localities, 
 asked if that map was printed in the record, " that 
 he was not a bird and could not see as a bird." 
 Mr. Justice Miller, when the words Dominus litis 
 were used, asked "and what is Dominus litis f" 
 Why, sir, said the attorney, it is, explaining the 
 meaning, &c. "Well, why did you not say so, 
 instead of coming in here with Latin, or whatever 
 it is, for I think the English sounds better than 
 that." Or Mr. Justice Brewer, ih a criminal case, 
 saying, "they would have the party not only re- 
 leased, but taken out and carried home in carriages 
 with a brass band besides." And Mr. Justice 
 Brown saying, " the wicked flee when no man pur- 
 sueth," did well as Scriptural doctrine, but it had 
 no particular application in a law case; and Mr. 
 Justice Shiras, when the writer referred to one of 
 Mrs. Gaines' cases as furnishing a precedent for his 
 contention, observed, ' ' But Mr. Attorney, that was 
 the case of a woman, was it not? " To which Mr. 
 Attorney replied that was the common or current 
 understanding, but he believed no writ had ever 
 
70 
 
 been issued to determine the fact ! These instances 
 could be multiplied almost indefinitely. 
 
 This court, too, has received its full share and. 
 amount of criticism, if not abuse. All public 
 functionaries do, and this seems to be a part of the 
 price exacted on account of their high positions. 
 And some times, in the zeal if not heat of opinions, 
 the court is raked by its own members, and no mis- 
 take. In judging them, however, we must always 
 reflect, we see alone from our standpoint, lawyer 
 and client, and that not the best calculated to do 
 ample and unprejudiced justice, they have to see and 
 act from all the points, the judges, the lawyers and 
 both the parties, and thus acting they must see as 
 others do not, and cannot. This is what they are 
 there for. 
 
 We, as attorneys, get literally wrapped up in our 
 client's cause, and we take his place absolutely and 
 see nothing but his side of the case, and generally, 
 whether we believe or not in the somewhat extreme 
 rule announced by Lord Brougham in the trial of 
 Queen Caroline to let nothing stand between the at- 
 torney and his client, we each declare not only that 
 we will do our utmost, but at times we even declare 
 we will win the case in spite of all things, and the 
 court can decide it only our way. This is vie- 
 
71 
 
 ious and dangerous. We should go no further than 
 to say we will do our best, and not forecast what the 
 ^ourt will do — that is for the court. We know we 
 often gain cases in which we have not the most con- 
 fidence, and as often lose those in which we have en- 
 tire confidence. The experience of any lawyer of 
 some years general practice is this. Dr. Samuel 
 Johnson, the eccentric, learned, and laborious, had 
 with Boswell a short discussion on this subject, as 
 follows: 
 
 Boswell: "I asked him whether, as a moralist, he 
 did not think that the practice of the law, in some 
 degree, hurt the nice feeling of honesty." 
 
 Johnson : ' ' Why, no, sir, if you act properly. 
 You are not to deceive your clients with false rep- 
 resentations of your opinion. You are not to tell 
 lies to a judge." 
 
 Boswell: '" But what do you think of supporting 
 a cause which you know to be bad. ' ' 
 
 Johnson : ' ' Sir, you do not know it to be good or 
 bad till the judge determines it. I have said that 
 you are to state facts fairly; so that your thinking, 
 or what you call knowing, a cause to be bad, must 
 be from reasoning, must be from your supposing 
 arguments to be weak and inconclusive. But, sir, 
 that is not enough. An argument which does not 
 
72 
 
 convince yourself may convince the judge to whom 
 you urge it, and if it does convince him, why, then, 
 sir, you are wrong and he is right. It is his busi-_ 
 ness to judge; and you are not to be confident in 
 your own opinion that a cause is bad, but to say all 
 you can for your client, and then hear the judge's 
 opinion. ' ' 
 
 Boswell : ' ' But, sir, does not aflfecting a warmth 
 when you have no warmth, and appearing to be 
 clearly of one opinion when you are in reality of 
 another opinion, does not such dissimulation impair 
 one's honesty ? Is there not some danger that a 
 lawyer may put on the same mask in common life, 
 in the intercourse with his friends ? ' ' 
 
 Johnson: "Why, no, sir. Everybody knows 
 you are paid for affecting warmth for your client, 
 and it is, therefore, properly no dissimulation ; the 
 moment you come from the bar you resume your 
 usual behavior. Sir, a man will no more carry the 
 artifice of the bar into the common intercourse of 
 society, than a man who is paid for tumbling upon 
 his hands will continue to tumble upon his hands 
 when he should walk on his feet." (i Life of 
 Johnson by Boswell, p. 426). 
 
 In raising expectations of clients for victory and 
 have them disappointed is a sorrow deep and lasting 
 
73 
 
 to the client, besides a wound to the attorney not 
 easily salved. 
 
 In early practice I was much given to this, and in 
 fact I was bound to gain every case in which I was 
 enlisted. But in 1857, some four years after I came 
 to the bar, I got a halt in this, and never more since 
 then have I vowed, declared or asserted I would gain 
 a case. I had a case involving great principles, 
 and with many others of like character involving 
 large sums of money. I had caught a new idea for 
 relief, and had a fine contract for compensation, in- 
 deed enough to do me without any more severe labor 
 or hard work'if I had been successful. I had inadver- 
 tently told the bar generally, I was going to gain it, 
 and would spend the next summer in Kentucky, 
 where I was so long at school, and at Saratoga 
 Springs ; going to Saratoga from the South and West 
 in those days was an era in a man's life, and I had 
 promised this to my wife, but with a woman's intui- 
 tion which every time beats man's reasoning, she did 
 not hurry to make preparations to get off, but waited 
 for events before she looked to the actual trip. The 
 case came on, and I lost it from top to bottom, not a 
 judge on my side, and there I was in the court with 
 forty or more lawyers looking curiously enough at 
 me, and nearly a mile from my ofiice, the road to 
 4 
 
74 
 
 which went right through the town. I slipped out of 
 the court before it adjourned and took a kind of out- 
 side trail to my office, for I was not in a fix to re- 
 ceive company or to enjoy it. Biit by some means 
 or other, I did encounter several attorneys before I 
 reached my office, each of whom was quite solicit- 
 ous to know of me when I would start for Kentucky 
 and Saratoga, and if I would be gone long, &c., 
 and divers perplexing questions of that sort, that I 
 did not appreciate at all. I did not mingle much 
 for some days with people, lawyers and courts, but 
 when I did begin, I was accosted all aroimd with, 
 ' ' When did you return from Kentucky and Sara- 
 toga ; did you have a good time ; I hope so. ' ' All of 
 which had a very depressing effect upon me, and 
 my replies were not of the most amiable and assuag- 
 ing character. Never since then have I indulged 
 in any advanced declaration of victory in law cases, 
 but have done all I could and left it to the court, 
 and when at times in professional excitement I 
 would feel disposed to venture in this promise of 
 success whether or no, I am mournfully reminded of 
 Booker, Ex parte, i8 Arks. Rep., which stands as a 
 positive and permanent admonition and warning to 
 me. It is due to the candid severity of history to 
 say, I have- never yet seen Saratoga, and while I 
 
75 
 
 have seen my school-boy spot in Kentucky since 
 that event, yet it was in no wise due to my connec- 
 tion with large realizations out of Booker Ex parte. 
 The ruler, who wanted to know the color of the 
 four-sided sign post some distance from him, had to 
 send four different messengers to ascertain it, as it 
 had a special color for each side, and no one mes- 
 senger looked at it except on one side. These 
 judges must examine four sides — all sides — and they 
 pass upon laws, constitutional and statutory, com- 
 mon law, equity law, admiralty law, States' laws, 
 Indian laws, international law, and all sorts of law, 
 customs, usages and traditions. In short they are 
 engaged in 
 
 "Mastering the lawless science of our law 
 
 That codeless myriad of precedent." 
 " That wilderAess of single instances." 
 
 And we should be slow to find fault with them 
 or pass condemnation upon them. 
 
 In preaching forbearance towards the court in its 
 work, I cannot say I have always practiced it, and 
 that I have been altogether consistent in this, and 
 who has ? Not in this merely, but in all things in 
 life, big and little! I too have smarted under rul- 
 ings adverse to me, and at times retired to the nearest 
 
76 
 
 place of refreshment and vented my spleen in the 
 usual way, and failed to practice what I preach — 
 
 "Reproach me not, though it appear, 
 While I true doctrines teach, 
 I wholly fail in my career, 
 To practice as I preach; 
 
 « ' ' Yon guide post has, through countless days 
 ' To London ' pointed on, 
 Not once has quit the angled ways, 
 And up to London gone." 
 
 It may be of interest to note, that during the ex- 
 istence of the court, there has been one jury trial in 
 it. The State of Georgia v. Brailsford, 3 Dall. J , 
 was an amicable issue, to ascertain whether the debt 
 due from Spalding and the right of action to recover 
 it belonged to Georgia or to the original creditors, 
 and whether debts due to B, a British subject resid- 
 ing in Great Britain, were subject to confiscation! 
 (See 2 Dall. 403, 415). 
 
 Chief Justice Jay charged the jury upon the law 
 and facts of the case, and among other things said : 
 
 ' ' It may not be amiss here,^gentlemen, to remind 
 you of the good old rule, that on questions of fact it 
 is the province of the jury, on questions of law, it 
 is the province of the court to decide. But it must 
 be observed, that by the same law, which recog- 
 
77 
 
 nizes this reasonable distribution of jurisdiction, 
 yon have nevertheless a right to take upon your- 
 selves to judge of both, and to determine the law as 
 well as the fact in controversy. On this, and on 
 every other occasion, however, we have no doubt 
 you will pay that respect, which is due to the opinion 
 of the court ; for as on the one hand, it is presumed 
 that juries are the best judges of facts, it is on the 
 other hand presumable that the court are the best 
 judges of law. But still both objects are lawfully 
 within your power of decision. ' ' This brings to mind 
 the somewhat animated struggle between some of 
 the judges, in Spark and Hauser v. The United 
 States, 156 U. S. 51. In this case, Mr. Justice Har- 
 lan, for the court, announced, in an elaborate and 
 exhaustive opinion, that in the courts of the United 
 States, it is the duty of the jury, in criminal cases, 
 to receive the law from the court, and to apply it as 
 given by the cotirt, subject to the condition, that by 
 a general verdict, a jury, of necessity, determines 
 both law and fact as compounded in the issue, as 
 submitted to them in the particular case. This view 
 was strongly, ably and most learnedly combated 
 by Justices Gray and Shiras in a dissenting opinion 
 delivered by Mr. Justice Gray. 
 
 All this revives what the Edinburg Review for 
 
78 
 
 January, 1807, said: " They have been wrangling 
 upon this fundamental point in the institution for 
 these last fifty years, and it is settled we believe, 
 nearly in this satisfactory way — all judges main- 
 tain they have the right to dictate the law, and all 
 juries maintain they are bound to take no more of 
 their doctrine than tliey approve of." 
 
 In all personal reminiscences, the ego must neces- 
 sarily stand out prominently, or they would not 
 be the reminiscences of him the writer, but of 
 somebody else. Without any desire or effort at self- 
 laudation, it will not be inappropriate to set forth 
 here the cases in which I have, appeared as counsel 
 in that court, for they are published in the reports 
 and are therefore public property. I give them in 
 their chronological order: 
 
 McGee v. Mathis^ 4 Wall. 143, and six other 
 cases on the same point, involving the impairing of 
 the obligation of contracts by State laws. 
 
 Witherspoon v. Duncan^ 4 Wall. 210, argued by 
 Mr. Johnson on my brief before the test oath was 
 held unconstitutional — involving power to tax land 
 before patent issues. 
 
 Ex parte Garland^ 4 Wall., already referred to. 
 
 The State of Miss. v. Johnson., 4 Wall. 475 : The 
 constitutionality of the Reconstruction Acts. 
 
A. H. GARLAXD. 
 
79 
 
 Lukins \ . Aird^ 6 Wall. 78: Fraudulent convey- 
 ance of property. 
 
 Rector v. Ashley's heirs^ 6 Wall. 142: Jurisdic- 
 tional questions as to review ; and titles under New 
 Madrid Act. 
 
 Field V. Farington^ 10 Wall. 141: Obeying in- 
 structions of consignee by his factors. 
 
 Hanauer v. Doan^ 12 Wall. 342: Recovery of 
 price of goods sold in aid of the rebelliou. 
 
 Too/ V. Martin^ 13 Wall. 40: Construction of 
 bankrupt act as to the meaning of the word insol- 
 vency. 
 
 Bevans v. The U. S.^ 13 Wall. 56: Duress as a 
 defence in law as Receiver of public moneys. 
 
 Halliburton v. The U . S., 13 Wall. 463: Same 
 point as in Bevans' case above named. 
 
 Osborn v. Nicholson^ 13 Wall. 654: Validity of 
 contracts for sale of .slaves made before the war. 
 
 Pennywitv. Eaton, 15 Wall. 380: Jurisdiction and 
 power of a military commander during the war to 
 appoint a civil judge. 
 
 Hanauer v. Woodruff, rj U all. 4jq : Validity of 
 contract based on war bonds of Arkansas. 
 
 Allen \.^ Ferguson, 18 Wall, i: Promise suffi- 
 cient to take a case out of the statute of limitations. 
 
80 
 
 Batesville v. Kaufman^ i8 Wall. 156 : Parties 
 necessary in foreclosing mortgage, assignment of 
 debt secured by mortgage or judgment. 
 
 Williams v. Bankhead, 19 Wall. 563 : Indispens- 
 able parties, &c. 
 
 Yonleyv. Lavender, 2 1 Wall. 276: Claim against 
 estate of a deceased person in Arkansas to be col- 
 lected through the Probate Court. 
 
 Ross V. Jones, 22 Wall. 576 : Limitation during 
 the war, and liability of endorser for accommoda- 
 tion only under the Arkansas statute. 
 
 Lewis V. Hawkins, 23 Wall. 119: Vendor 's lien — 
 bankrupt act — limitation — parties. 
 
 Ober V. Gallagher, 93 U. S. 199 : Limitation — 
 suit on note or in equity to foreclose mortgage. 
 
 Sawin v. Kenney, 93 U- S- 389 : Joint and several 
 contract under the Arkansas statute. 
 
 Tate V. Norton, 94 U. S. 746 : Allowance, class- 
 ification and payment of claims against estate of 
 deceased person in Arkansas. 
 
 Railway Co. v. Loftin, 98 U. S. 559 : Exemption 
 of R. R. property from taxation (S. C. in 105 U. S. 
 258). 
 
 County V. Wolcott, 103 U. S. 559 : County bonds. 
 
 Wall V. Co. Monroe, 103 U. S. 74 : County war- 
 rants. 
 
81 
 
 Dowell V. Mitchell, 105 U. S. 430 : Remedy at 
 law not in equity. 
 
 Hayden v. Manning, 106 U. S. 586 ; Fraud in 
 obtaining jurisdiction. 
 
 Tealv. Walker, 11 1 U. S. 242: Mortgagee's right 
 to rents, &c. , under the Oregon law. 
 
 Rector v. Gibbon, 11 1 U. S- 276 : Contracts of 
 lease on Hot Springs Reservation in Arkansas. 
 
 T. P. R. R.v. Kirk & Murphy {2 cases): Motion 
 to dismiss or affirm, and same cases, 115 U. S. 2, on 
 question of removal to circuit court of U. S. from 
 State court. 
 
 Edrington v. Jefferson, 115 U. S. 770 : Removal 
 of cause from State court to U. S. court. 
 
 Davies v. Cor bin, 112 U. S. 36 : On motion to 
 dismiss, and same case in 113 U. S. 687, on enjoin- 
 ing collection of taxes. 
 
 Nixv. Allen, 112 U. S. 129: Pre-emption Right, 
 &c. 
 
 Virginia coupon cases (5).- 114 U. S. 270 et seq : 
 The act of the State of Virginia funding the State 
 debt. 
 
 Lamar V. McCidloch, 115 U. S. 163 : Heretofore 
 
 referred to. 
 
 Merrick, Ex., v. Giddings, 115 U. S. 300 : Lia- 
 bility of agent on his individual promise. 
 
82 
 
 Baltzer v. Raleigh^ &c., 115 U. S. 634: Relief 
 in equity for fraud or mistake. 
 
 Zeiglersr. Hopkins^ 117 U. S. 683: Jurisdictional 
 amount. 
 
 Iron Mountain, dfc, v. Johnson, 119 U. S. 608: 
 Forcible entry and detainer of possession of Railroad 
 under the Arkansas law. 
 
 Rosenbaum v. Bauer {2 cases), 120 U. S. 450: 
 Removal of case from State court. 
 
 Tke U. S. V. Arjona, 120 U. S. 479 : Act of 
 Congress prohibiting the counterfeiting of foreign 
 notes, securities, &c. , in the U. S. 
 
 Sun Ins. Co. v. Kountz Line, &c., 123 U. S. 65- 
 Petition for rehearing — modification of decree. 
 
 Teal V. Bilby, 123 U. S. 572 : Consolidation of 
 suits — change of written contract by oral agreement. 
 
 Brown v. McConnell, 124 U. S. 489 : Motion to 
 dismiss for want of proper security. 
 
 Brown v. Hazzard and Ranck {2 cases): Same as 
 Brown v. McConnell. 
 
 Tompkins & Williams v. Little Rock, &c., 125 
 U. S. 109 (2 cases): Payment of Railroad aid bonds 
 of Arkansas. 
 
 Johnson v. Christian, 125 U. S. 642: Jurisdiction 
 on question of citizenship in suit in equity to enjoin 
 a judgment in a suit at law between the same parties. 
 
83 
 
 In re Coy^ 127 U. S. 731: Fraud upon election 
 laws of Indiana. 
 
 The U. S. V. Irzvin and The U. S. v. Perry ^ 127 
 U. S. 125: Action for property taken by Col. Albert 
 Sidney Johnson in command of the Utah expedition. 
 
 Johnson v. Christian^ 128 U. S. 374: Principal 
 and agent — power of court of equity to enjoin a 
 judgment at law. 
 
 Allen V. Smithy 129 U. S. 465: Impeaching a 
 judgment for fraud — limitation. 
 
 Camden v. May hew ^ 129 U. S. 13: Opening bids 
 at chancery sale — making them good, &c. 
 
 Stevens v. Nicholson^ 130 U. S. 330: Removal of 
 cause from State Court. 
 
 Oregon Railway cases ^ 130 U. S. i: Powers of 
 corporation — ultra vires, &c. 
 
 Brown v. Ranck, 132 U. S. 216: Eifect of dis- 
 missing suit on demurrer in Territorial court. 
 
 Hammond v. Hastings^ 134 U. S. 401: Lien of 
 corporation on stock of stockholder. 
 
 Small V. N. P. R., 134 U. S. 514: Appeal dis- 
 missed; not filed at the succeeding term of the court. 
 
 N. P. R. V. Austin, 135 U. S. 315: Amendments 
 within discretion of the court. 
 
 In re Lane, 135 U. S. 443: Sufficiency of indict- 
 ment, and proceedings in trial, for rape. 
 
84 
 
 Hot Springs R. R. v. Williamson^ 136 U. S. I2i: 
 What court is not asked to charge or. instruct on can- 
 not be reviewed — taking private property for public 
 use. 
 
 T. P. R. R. V. Marshall, 136 U. S. 393: Contract 
 of railroad to build a depot at a town if subscription 
 be made. 
 
 Lawrences. Rector, 137 U. S. 139: Same as Rector 
 V. Gibbon, in iii U. S. above referred to. 
 
 Alexander v. The U. S. 138 U. S. 353: Privileged 
 communications. 
 
 Kauffman v. Wootens, 138 U. S. 285: Notice of 
 proceedings — Fourteenth Amendment. 
 
 St. Paul, &c., V. N. P. J?., 139 U. S. i: Vesting 
 of title under railroad grant. 
 
 Henderson & Hitchcock v. Carbondale Co., &c. 
 {2 cases), 140 U. S. 251: Parties to suit — forfeiture 
 in equity — court has full power over its records and 
 proceedings during the term to correct — voluntary 
 appearance of party. 
 
 Caldwell v. Texas, 141 U. S. 209 (at the request 
 of the court) : No jurisdiction. 
 
 United States y. Old Settlers, 148 U. S. 427: In- 
 dian treaties. 
 Johnson v. St. Louis, &c., 141 U. S. 602: Change 
 
85 
 
 of contract by mutual agreement — -jurisdictional 
 amount. 
 
 Rector v. Lipscomb^ 141 U. S. 557: Affidavits 
 showing value of property in dispute taken after 
 decision in the case. 
 
 St. Louis^ &c., V. McBrtde, 141 U. S. 127: Vol- 
 untary appearance of defendant waives right to 
 challenge jurisdiction on ground that the suit had 
 been brought in wrong district. 
 
 Evans ^. State Bank., 141 U. S. 107: Affirmance 
 of case on facts found by court below. 
 
 N. P. R. V. Washington Territory, 142 U. S. 492: 
 Mandamus to compel R. R. to build a station at a 
 certain place. 
 
 Bird V. Benlisa, 142 U. S. 664: Tax title under 
 Florida law. 
 
 N. O. P. Ry. V. Parker., 143 U. S. 42. Jurisdic- 
 tional amount — Railroad mortgage — appurtenances. 
 
 Boydv. Nebraska., 143 U. S. 135: Governorship 
 of Nebraska. 
 
 The U. S. V. Texas., 143 U. S- 621 : Original bill to 
 determine boundaries held good on demurrer. 
 
 N- P- R- V. Amat'o, 144 U- S- 465: Jurisdiction 
 on appeal from Circuit Court of Appeals — affirm- 
 ance of the case that writ was taken out for delay. 
 
 Brenham v. German, &c., 144 U- S- 173: Power 
 
86 
 
 of city of Brenham to issue negotiable bonds: Same 
 case, p. 549, rehearing, and modification of the judg- 
 ment. 
 
 N. p. R. V. Ellis, 144 U- S. 458: Whether Fed- 
 eral question is presented ? 
 
 Glaspell V. Same, 144 U. S- 211: Time of filing 
 bill of exceptions- 
 
 Logan v- U- S- 144 U- S- 263: State or Federal 
 jurisdiction — competency of witness to testify : Acts 
 and declarations of co-conspirators after conspiracy 
 is ended. 
 
 G'Neilv. Vermont, 144 U. S. 323: Whether Fed- 
 eral question is presented on writ of error to State 
 court. 
 
 Bardon v. N- P. R., 145 U. S. 535: Segregation 
 of lands under grant to railroad. 
 
 Lewis V. The U. S., 146 U. S. 370: Right of pris- 
 oner to be present on trial for felony not to be 
 waived — challenge of jurors essential right. 
 
 Monroe Cattle Co. v. Becker, 147 U. S. 47: Sale 
 of school lands under Texas law, &c. 
 
 Stanley v. Schwalby, 147 U. S. 508: Statute of 
 limitations by U. S. , adverse possession, &c. 
 
 Walker v. Sieberger, 149 U. S. 541: The tariff 
 act as to trimmings used exclusively or chiefly in 
 the making and ornamentation of hats. 
 
87 
 
 Aliens. The U. S., 150 U. S. 551: Justification in 
 case of homicide. 
 
 Brown v. The U- 5., 150 U. S. 93: Ruling in Logan 
 V. U. S. 144, followed as to acts of co-conspirator. 
 
 Hallv- The U- S., 150 U. S. 76: New trial granted 
 because of district attorney addressing jury spoke 
 of matters outside the record. 
 
 Rader v. Maddox, 150 U. S. 128: Not allowable 
 to repudiate a transaction in part and to ratify it 
 part. 
 
 Graves^. The U. 5"., 150 U. S. 118: Wife of pris- 
 oner charged with crime not competent witness. 
 
 Famous Stnith v. The U- 5"., 151, p. 50: Suffi- 
 ciency of proof as to whether a person is an Indian 
 or white man. 
 
 Hallidayv. Stuart^\^\ U. S. , p. 229: Authority 
 of attorney to make agreement binding on the 
 client. 
 
 Hickory v. The U. 5., 151 U. S. 303: Doctrine 
 in Allen v. The U. S., 150 U. S. followed. 
 
 T & P. Ry. Co. V. Johnson (two other similar 
 cases), 151 U. S. 81: Judgment of highest court of 
 State not reviewable on other than Federal question. 
 
 T & P. Ry. Co. V. Volk, 151 U. S- 73: Contrib- 
 utory negligence — amount of damages as a delay 
 case. 
 
88 
 
 Bowlby V. Shively, 153, i : Riparian rights. 
 
 Prosser v. N- P. R-, 152; 59: Power to enjoin 
 board of commissioners from establishing general 
 system of harbor lines- 
 
 Si. Louis, &c., V. Schumacher, 152 U. S- J"]: 
 Contributory negligence — decision of the case by 
 court without a jury. 
 
 Everett v- tV. P. R., 152 U. S. 107: Negligence, 
 &c. 
 
 West V. Cabell, i^j U. S. 78: Arrest of person 
 under wrong name. 
 
 City ,Bk. V. Hunter, 152 U. S. 512: No appeal 
 from a judgment executing mandate of this court 
 if value in dispute is, on appeal, less than $5,000; 
 no appeal lies from decree for costs. 
 
 City, &C-, ex parte, 153 U- S. 246: Mandamus 
 proper remedy when mandate of this court has been 
 disregarded. (See 152 TJ. S- 152, above referred 
 to). 
 
 Hegler v. Faulkner, 153 U. S. 109: Statute of 
 limitation in Nebraska. 
 
 Starrs- The U- S., 154 U- S- 164: Reversed for 
 the discussion of irrelevant matter by the trial 
 judge in his charge to the jury. 
 
 N- P. R- V. Babcock, 154 U- S- 190: Case in 
 
89 
 
 which lex loci and not lex fori, controls limit of 
 amount of judgment. 
 
 N. p. R. V- Hambly, 154 U- S- 349: Fellow ser- 
 vant- 
 
 Burden v. N. P. P., 154X1. S. 288: Exclusion of 
 mineral lands from railroad grant. 
 
 Allisv. The U- 5., 155 U- S. 117: Making false 
 entries at different times, in books of national bank — 
 power to recall jury and instruct them again. 
 
 N. P- R. V. Holmes, 155 U. S. 137- (another case 
 similar): Power to review judgment of Supreme 
 Court of State of Washington, denying petition for 
 rehearing. 
 
 San Francisco, &c., v- Gill, 156 U. S- 649 (and 
 three other cases similar): Exemption of railroad 
 property — State law fixing railroad rates. 
 
 Reagan v- The U- S-, 157 TJ. S. 301: SmuggHng 
 goods into the U. S. 
 
 Gulf, &c., V. Shane, 157 U- S. 348: Operation of 
 jury laws of Arkansas in Oklahoma. 
 
 Beardsley v. Arkansas, &c., 158 U. S- 123: All 
 parties against^ whom a joint decree is rendered 
 must join in the appeal. 
 
 Roberts v. N. P. R., 158 U- S. i: Eminent 
 domain; right of Wisconsin to authorize county to 
 subscribe to the building of a railroad. 
 
90 
 
 The Catholic Bishops etc., v. Gibbon, 158 U. S 
 155 : The power and authority of Land Depart- 
 ment in the administration of public lands. 
 
 N. P. R. V. Nolin, 158 U. S. 271: Medical ex- 
 pert — instructions — exceptions to depositions. 
 
 Conley v. N. P. R., 159 U- S- 569: Special juris- 
 diction in territorial courts; removal of cases in. 
 
 Washington, &c., v. Couer D'Alene, 160 U. S. 
 loi : Construction of contract in law should be one 
 that equity would favor. 
 
 Hickory v. The U. S., 160 U. S. 408: Case re- 
 versed for the want of a calm and impartial charge 
 of the trial court. 
 
 Ryan v. Brosius (and two other cases), 162 U. S. 
 415: Rights of mortgagor and mortgagee under 
 Arizona law — judicial sale. 
 
 Stanley-^. Schwalby, 162X5. S. 255: Same as refer- 
 red to above in 143 U. S. 
 
 The U. S. V. Texas, 162 U. S- i: Same as in 143 
 U. S., already referred to (called Greer Co. case.) 
 
 T. & P. R. V. Gentry, 163 U. S. 353: Case for 
 jury — negligence, &c- 
 
 Acers v. The U- S-, 164 U- S. 388: Careless ex- 
 ceptions taken at the trial — self-defense. 
 
 T. & p. R. V. Bloom,x62, U. S- 636: Action z^.Rail- 
 
91 
 
 road and receiver thereof for injuries done by the 
 road sustained. 
 
 Edging ton v. The f/. 5., 164 U- S. 361: Proof of 
 character of defendant in a criminal case- 
 
 Dunlop V. The U. S., 165 U- S- 486: Sending 
 obscene publications through the U- S. mails. 
 
 T. & P. R. V. Barrett, 166 U. S- 617: Standing 
 upon same question of jurisdiction as Coy's case. lb. 
 606 — negligence, &c., &c. 
 
 Waggoner V. Evans, 170 U- S 588: Taxing cat- 
 tle in Indian reservation in Oklahoma, for county, 
 territorial and judicial purposes. 
 
 There are besides these, agood many cases wherein 
 my name is upon the briefs of attorneys for the Gov- 
 ernment who examined them with me as Attorney- 
 General, but prepared the briefs and presented the 
 the cases, of which no special mention is deemed 
 necessary. 
 
 In casting up the account of loss and gain in 
 the foregoing list, the balance is rather against me: 
 I have lost more than I gained. Sometimes it looks 
 strange, a lawyer's luck, as it is called, goes in sluices 
 — he gains right along for awhile, then he loses right 
 along. It is told of Judge B. R- Curtis when he 
 returned to the bar after his service on the bench, 
 he attended the Supreme Court and in course of 
 
92 
 
 time argued nine important cases and lost them all 
 in succession, and he was dispirited and almost con- 
 cluded to quit appearing before the court- 
 
 Upon one occasion, on opinion day, the tide ran 
 so heavily against me, losing about five cases and 
 gaining not one, I was quite ill at ease and moody. 
 Coming out of the court, I got in with Judge Har- 
 lan and passing the civilities of the day, he asked 
 me how I felt and I told him quite badly, and the 
 reason for it, and that I did not believe I could even 
 get an attorney enrolled in that court any more, 
 and recalled to him my fate on that day. He chided 
 me somewhat, and remarked it was not uniisual 
 with the very best lawyers, and told me of his ob- 
 servation here and elsewhere that bad or difficult 
 cases fell to the lot of good lawyers, and they were 
 sought for to deal with just such cases. The re- 
 mark had some balm in it, but it did not compose 
 me, nor did it serve to buy meat and drink and 
 lodging for the family. Then as a mongrel pup 
 was running after the street car we were in, the 
 Judge told me of the story of the man wondering 
 why a dog would run after a Railroad train so vehe- 
 mently, and then another man standing by won- 
 dered what he would do with the train if he caught 
 it! So in the midst of much mirth, we let the re- 
 
93 
 
 suits in the court of that day pass without further 
 remark, but they did not cease to have an unpleas- 
 ant effect upon me, for a g^ood while. 
 
 At last this court is the anchor, and not to mix 
 metaphors too freely — the safety valve — of our gov- 
 ernment. This feature of power must be lodged 
 -somewhere in the somewhat complicated and tan- 
 gled jurisdictions given under our Constitution, and 
 there is no place better than this to put it. And 
 with those shortcomings inevitable to all human in- 
 stitutions, we must learn and understand its force 
 and capabilities, and be glad that we have judges 
 sitting in Washington to appeal to, in the last resort 
 for law and justice in all matters affecting the great 
 common weal, and the rights of the citizen. 
 
 On more occasions than one, my name has been 
 mentioned s mewhat freely for a place as one of the 
 justices of that court, and it cannot, I hope, be con- 
 strued into any personal vanity for me to refer to it 
 here. Especially after the death of Justice Woods 
 in May, 1887, was it much discussed. I disposed of 
 the question then, as appears in an interview with 
 a member of the Associated Press, which is as fol- 
 lows, taken from the New York "Sun" of May 
 25th, 1887 : 
 
94 
 
 Washington, May 24th. 
 
 Attorney-General Garland to-day talked freely with a repre- 
 sentative of the Associated Press concerning his supposed can- 
 didacy for the vacant place on the Supreme Bench. Mr. Gar- 
 land said : 
 
 " I do not want the place, and would not take it if offered to 
 me." I do not, "said he," undervalue the place. It has work 
 and responsibility enough to test the ability of any one, and 
 honor sufficient for the most ambitious. When the two last ap- 
 pointments (Gray and Blatchford) for the Supreme Court were 
 made my name was conspicuously mentioned by persons of both 
 parties for selection. At that time, I would have readily ac- 
 cepted such a position, and I do not hesitate to say so, but I was 
 younger by several years and my health was much better then 
 than now. Then there was a period of twenty years between 
 my age and that fixed for retiring, and my health was unim- 
 paired. Now, that period is only fifteen years and my constitu- 
 tion is worn and enfeebled by a severe attack of sickness that 
 came upon me in March, 1886. The duties of the office of Jus- 
 tice of the United States Supreme Court are so important and so 
 exacting, that I feel it is due the public service that, as a general 
 rule, and, other things being equal, one who enters upon their 
 performance should have a fair and reasonable prospect of 
 twenty years of active, unbroken labor before reaching the age 
 named by the law for retiring. For the work done in that court 
 lasts for all the years to come, and goes far to mould and fash- 
 ion our institutions, make and execute the laws as we may. I 
 could not even indulge the hope of having fifteen years allowed 
 me for continuous hard work, and I would be untrue to duty to 
 accept such a trust with this fact staring me in the face. 
 
 "Besides," he said, "some months after the two appointments 
 
95 
 
 referred to, I was elected by the Legislature of Arkansas to the 
 United States Senate for the second time, and without oppo- 
 sition practically each time, and then I formed a resolution to 
 retire from public life and public office at the end of that term, 
 which will expire with the closing of this administration, and I 
 have so shaped my affairs as to carry out this resolution, which 
 becomes more important to me as the time approaches. This 
 resolution, some six months since, I repeated substantially to my 
 friends in Arkansas by a letter that was published, touching my 
 running again for the United States Senate, and I will say that 
 the entire Arkansas representation in Congress has known for 
 nearly or quite two years past of this determination on my part, 
 as well as some few other particular friends. ' ' 
 
 "May I ask you, then, if the President knows of this?" 
 "Yes, generally and particularly. Generally, for he has heard 
 me say flatly, more than a year since, that I wanted and would 
 have no other public office than this ; and on the 23d of Febru- 
 ary he asked me to take a place on the Inter-State Commerce 
 Commission, which I declined, repeating positively this determi- 
 nation on my part, that I wanted and would have no other pub- 
 lic office after this. And particularly, as soon as I could decently 
 do so (the day after Justice Woods was buried), I told him my 
 name was being used in this connection, and I wanted at once 
 to say, that I did not wish the place and would not have it, and 
 repeated again my resolution as to public office, and I wished 
 him to proceed to the consideration of the question as if he never . 
 had heard of me." 
 
 This interview stated exactly and truly my feel- 
 ing's on the subject, and it was and is sincere. As 
 it contains views as to the labor, work and respon- 
 
96 
 
 sibility of that court, and as to the age at which one 
 should be placed on that bench, and as it serves to 
 vindicate me, in disposing of frequent requests since 
 then to appear again for public office, its publica- 
 tion now in this connection will not be considered 
 out of place. 
 
 If in these pages I have been at times light and 
 trivial, in treating grave matters, and have made too 
 free a use of names, it has been through no ill in- 
 tention. If in this life beset with so many trials 
 and sorrows, we cannot soften and flavor it with 
 some pleasantry and fun as we trudge along, it 
 would be a dreary and cheerless journey indeed — in 
 fact almost unendurable. My association, profes- 
 sional and personal, with the judges and officers 
 of the court for nearly thirty-eight years has been 
 of the kindest and most cordial; and I have no 
 cause for a grudge, and no room in my heart 
 for one, against any one connected with the court. 
 I admire and enjoy the success of the court as 
 much as one of them would or could, and this 
 little paper is written as a slight testimonial of 
 regard for the court in which I entered so long 
 ago, and at such an early age when life ' ' seemed 
 formed of sunny hours" and was fresh and full 
 of hope and ambition. When I think of Ex 
 
97 
 
 parte Milligan^ Ex parte Garland^ Ex parte Cum- 
 mings^ and the case of Lee's heirs contending 
 for the old fan.ily homestead of the knightly Lee, 
 and others of a somewhat similar character that 
 might be named, that settled great principles shield- 
 ing and saving the people of my section from the 
 horrors of persecution engendered by a most unfor- 
 tunate civil war, I must yield a deep regard and 
 profound respect to that tribunal, and there in ad- 
 dition are many other high considerations that com- 
 mend it to my hearty esteem- 
 
 These reminiscences and reflections have been 
 written at odd times, which I could spare from pro- 
 fessional business, and, too, when pain and suffer- 
 ing were preying upon me- If they will give any 
 one a single grain of knowledge, comfort or interest, 
 I shall be pleased, and shall be satisfied that I wro'.e 
 tliem- But if they do not, I shall be content to see 
 them, unhonored and unsung, join the innumerable 
 caravan that moves on to take its place in the was e 
 basket or the obscure corner dedicattd to trash- 
 
 June nth, 1898- 
 
APPENDIX. 
 
 THE SPECIAL PLEADER'S LAHENT. 
 
 Say. Mary, can'st thou sympathize 
 With me, whose heart hes bleeding ; 
 
 Condemned to wake from "Love's young dream, 
 And take to special pleading ? 
 
 For since I lost my suit to you, 
 
 I care not now a fraction 
 About these stupid suits at law. 
 
 These senseless forms of action. 
 
 But in my lonely chambers oft, 
 
 When clients leave me leisure, 
 In musing over departed joys, 
 
 I find a mournful pleasure. 
 
 How well I know the spot where first 
 
 I saw that form ethereal ! 
 But, oh ! in transitory things 
 
 The venue's not material. 
 
 And reading Archbold's practice now, 
 
 I scarce believe 'tis true. 
 That I could set my heart upon 
 
 An arch bold girl like you. 
 
 But then that bright blue eye sent forth, 
 
 A most unerring dart. 
 Which, like a special capias made 
 
 A prisoner of my heart. 
 
99 
 
 And in the weakness of my soul, 
 
 One fatal long vacation, 
 I gave a pledge to prosecute 
 
 And filed my declaration. 
 
 At first your taking time to plead 
 
 Gave hopes for my felicity; 
 The doubtful negative you spoke 
 
 Seemed bad for its duplicity. 
 
 And then that blush so clearly seemed 
 To pardon my transgression, 
 
 I thought I was about to snap 
 A judgment by confession. 
 
 But soon I learned, most fatal truth ! 
 
 How rashly I had counted. 
 For non assumpsit was the plea, 
 
 To which it all amounted. 
 
 Deceitful maid ! another swain 
 
 Was then adored by thee; 
 The preference you gave to him 
 
 Was fraudulent to me. , .t . 
 
 But then, alas ! the Barons held 
 The transfer of this treasure - 
 
 Could not by me be set aside. 
 Being made when under pressure. 
 
 Ah. when we love, so Shakspeare says, 
 
 111 luck is sure to have us, 
 The course of true love never ran 
 
 Without some special traverse. 
 
 Say, what inducement could you have 
 
 To act so base a part 
 Without this, that you smiled on me, 
 
 I ne'er had lost my heart. 
 
100 
 
 My rival I was doomed to see 
 A husband's rights assert ! 
 
 And now 'tis wrong to think on you, 
 For you're Sl feme coverte. 
 
 When late I saw your son and heir, 
 'Twas wormwood for a lover; 
 
 But the plea of infancy, 
 My heart could not get over. 
 
 I kissed the little brat, and said 
 Much happiness I wish you ; 
 
 But, oh ! I felt he was to me 
 An ifnmaterial issue. 
 
 Mary, adieu ! I mourn no more 
 
 Nor pen pathetic ditties; 
 My pleading was, alas ! in vain. 
 
 So now I'll stick to Chitty's.