Various - The Bay State Monthly, Volume 3, No. 6

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[Illustration: Henry W. Paine]

THE BAY STATE MONTHLY.

_A Massachusetts Magazine._

VOL. III. NOVEMBER, 1885. NO. VI.

* * * * *

HENRY W. PAINE.

BY PROF. WILLIAM MATHEWS, LL.D.

Among the callings acknowledged to be not only useful, but indispensable
to society, there is no one, except the medical, which has been oftener
the butt of vulgar ridicule and abuse than the legal. "Lawyers and
doctors," says a writer on Wit and Humor in the _British Quarterly
Review_, "are the chief objects of ridicule in the jest-books of all
ages." But whatever may be the disadvantages of the Law as a profession,
in spite of the aspersions cast upon it by disappointed suitors,
over-nice moralists, and malicious wits, it can boast of one signal
advantage over all other business callings,--that eminence in it is
always a test of ability and acquirement. While in every other
profession quackery and pretension may gain for men wealth and honor,
forensic renown can be won only by rare natural powers aided by profound
learning and varied experience in trying causes. The trickster and the
charlatan, who in medicine and even in the pulpit find it easy to dupe
their fellow-men, find at the bar that all attempts to make shallowness
pass for depth, impudence for wit, and fatal for wisdom, are instantly
baffled. Not only is an acute, sagacious, and austere bench a perilous
foe to the trickery of the ignorant or half-prepared advocate, but the
veteran practitioners around him are quick to detect every sign of
mental weakness, disingenuous artifice, or disposition to substitute
sham for reality. Forensic life is, to a large extent, life in the broad
glare of day, under the scrutiny of keen-eyed observers and merciless
critics. In every cause there are two attorneys engaged, of whom one is
a sentinel upon the other; and a blunder, a slip, an exaggeration, or a
misrepresentation, never escapes without instant exposure. The popular
reputation of a lawyer, it has been well said, is but the winnowed and
sifted judgment which reaches the world through the bar, and is
therefore made up after severe ordeal and upon standard proof.

These observations are deemed not inappropriate as an introduction to a
sketch of the life of one of the most eminent lawyers of New England,
whose career may be regarded as signally worthy of imitation.

HENRY WILLIAM PAINE was born August 30th, 1810, in Winslow,
Maine. His father, Lemuel Paine, a native of Foxborough, Mass., was a
graduate of Brown University, and a lawyer by profession, who began
practice in Winslow, Maine, in partnership with Gen. Ripley, afterwards
the hero of Lundy's Lane. Owing to poor health, Mr. Paine, sen., soon
abandoned the law for other pursuits. He was familiar with the
representative English authors, and specially fond of the Greek language
and literature, which he cultivated during his life. He had a tenacious
memory, and could quote Homer by the page. Henry Paine's mother, Jane
Thomson Warren, was the daughter of Ebenezer T. Warren, of Foxborough,
the brother of General Joseph Warren, who fell at Bunker Hill. Of the
three children of Lemuel and Jane T. (Warren) Paine, Henry William was
the second.

After the usual preparatory education, Mr. Paine entered Waterville
College (now Colby University) in 1826, and graduated in 1830, at the
age of twenty, with the highest honor of his class. During the last year
of the college course, he was principal of Waterville Academy, then just
founded for the preparation of young men for college. He spent eight
hours a day in charge of his pupils, of whom there were eighty-two, and
at the same time kept up with his class in the college studies. As a
teacher he was greatly beloved and respected by his pupils, whose
affection was won by no lack of discipline, but by his kindly sympathy,
encouragement, and watchful aid in their studies. He had an eye that
could beam with tenderness, or dart lightnings; and it was a fine moral
spectacle, illustrating the superiority of mental over physical force,
to see a bully of the school, almost twice his size, and who,
apparently, could have crushed him if he chose, quail under his eagle
gaze, when arraigned at the principal's desk for a misdemeanor. It is
doubtful if ever he flogged a scholar; but he sometimes brought the
ruler down upon the desk with a force that made the schoolroom ring, and
inspired the lawless with a very wholesome respect for his authority.
The fact that from that day to this his office has always been a kind of
Mecca, to which his old pupils, whether dwellers in "Araby the Blest" or
in the sandy wastes of life, have made pious pilgrimages, shows how
deeply he was loved and how highly he was honored as a teacher.

Immediately after graduation Mr. Paine was appointed a Tutor of
Waterville College, and discharged the duties of that office for a year.
He then began the study of law in the office of his uncle, the late
Samuel S. Warren, of China, Maine, and continued the study in the office
of William Clark, a noted lawyer in Hallowell, Maine, and, for a year,
in the Law School of Harvard University, where he was the classmate of
Charles Sumner, Wendell Phillips and B.F. Thomas. In the autumn of 1834,
he was admitted to the bar of Kennebec County, Maine. Beginning his
professional career at Hallowell, he prosecuted it there with signal
success till the summer of 1854, having for twenty years a practice not
surpassed by that of any member of the Maine bar. During the sessions of
1836, 1837, and again in that of 1853, he represented the citizens of
Hallowell in the lower house of the State Legislature. He was also for
five years Attorney for Kennebec County. During his stay in Maine, he
was repeatedly offered a seat on the bench of the Supreme Judicial Court
of that State; but, having an unconquerable aversion to office of every
kind, civil or political, he declined to accept the honor pressed upon
him. In 1853 he was offered by his political friends, then the dominant
party in the Legislature, a seat in the United States Senate; but he
refused to be nominated. In the summer of 1854, in accordance with a
long cherished resolve, which he had been prevented from executing
before by a promise to his father that he would not leave Maine during
that parent's lifetime, he removed to Cambridge, Mass., and opened a
law-office in Boston. Here he at once entered upon a large and lucrative
practice, both in the State and Federal courts, which kept steadily
increasing for over twenty years, till declining health and partial
deafness compelled him to withdraw from the courts of justice, and
confine himself to office business. During this period, his opinion on
abstruse and knotty points of law was often solicited by eminent counsel
living outside of Massachusetts, and he sent written opinions to
attorneys in nine different states. As Referee and Master in Chancery,
he was called upon to arbitrate in a great number of difficult and
complicated cases, involving the ownership and disposition of large
amounts of property. His decisions in these vexed cases, which often
involved the unravelling of tangled webs of testimony, and the
consideration of the nicest and most delicate questions of law, were
luminous and masterly, and so impartial withal, that the litigants must
have often been convinced of their justness, if not contented,--_etaim
contra quos statuit, aequos placatosque dimisit._

In 1863 and 1864 Mr. Paine was nominated, without his consent, by the
Democratic party of Massachusetts, a candidate for the office of
Governor. With much reluctance he accepted the nomination, but, as he
expected, and doubtless to his joy, failed of an election. In 1867, on
the resignation of Chief Justice Bigelow, the office of Chief Justice of
the Supreme Court of Massachusetts was offered by Governor Bullock to
Mr. Paine, who, not wishing to give up his large and profitable practice
at the bar, declined to accept. This decision, though a natural one, is
much to be regretted by the citizens of this state. Coming from an
eminently judicial mind, his decisions, had he sat on the bench, would
have been models of close, cogent reasoning, clearness, and brevity,
worthy of the best days of the Massachusetts judiciary.

Shortly after his removal to this State Mr. Paine was associated with
Rufus Choate and F.O.J. Smith in the defence of Judge Woodbury Davis, of
Portland, Maine, who had been impeached by the Legislature of that State
for misconduct in his judicial office. In an editorial article upon the
trial, which appeared after its termination, in the Kennebec Journal,
published at Augusta, the Hon. James G. Blaine, the writer, declared
epigrammatically that, in the defence of Judge Chase, "Paine furnished
the logic, Choate the rhetoric, and Smith the slang."

From 1872 to 1883 Mr. Paine was Lecturer on the Law of Real Property
at the Law School of the Boston University, an office whose duties he
performed with great credit to himself, and profit to those whom he
addressed. So thoroughly was he master of his subject, difficult and
intricate as it confessedly is, that in not a single instance, except
during the lectures of the last year, did he take a note or scrap of
memoranda into the class room.

While he has always been a close and devoted student of the law, Mr.
Paine has yet found time for general reading, and has hung for many an
hour over the pages of the English classics with keen delight. For Homer
and Virgil he still retains the relish of his early days, and, in the
intervals of professional toil, has often slaked his thirst for the
waters of Helicon in long and copious draughts. How well he appreciated
the advantages of an acquaintance with literature, he showed early in a
suggestive and instructive lecture on "Reading," which we heard him
deliver before the Lyceum at Hallowell more than forty years ago. With
his lamented friend Judge B.F. Thomas, he believes that a man cannot be
a great lawyer who is nothing else,--that exclusive devotion to the
study and practice of the law tends to acumen rather than to breadth, to
subtlety rather than to strength. "The air is thin among the apices of
the law, as on the granite needles of the Alps. Men must find
refreshment and strength in the quiet valleys at their feet."

With his brethren of the bar Mr. Paine has always held the friendliest
relations, and he has enjoyed their highest esteem. To none, even the
humblest of his fellow advocates, has he ever manifested any of the
haughtiness of a Pinkney, or any of that ruggedness and asperity which
gained for the morose and sullen Thurlow the nickname of _the
tiger_. Amid the fiercest janglings and hottest contentions of the
bar, he has never forgotten that courtesy which should mark the
collision, not less than the friendly intercourse, of cultivated and
polished minds. His victories, won easily by argumentative ability,
tact, and intellectual keenness, unaided by passion, have strikingly
contrasted with the costly victories of advocates less self-restrained.
Though naturally witty and quick at retort, he has never used the weapon
in a way to wound the feelings of an adversary. In examining and
cross-examining witnesses, he has assumed their veracity, whenever it
has been possible to do so; and though he has had the eye of a lynx and
the scent of a hound for prevarication in all its forms, yet he has
never sought by browbeating and other arts of the pettifogger, to
confuse, baffle, and bewilder a witness, or involve him in
self-contradiction. Adopting a quiet, gentle, and straightforward,
though full and careful examination, winning the good-will of the
witness, and inspiring confidence in the questioner, Mr. Paine has been
far more successful in extracting the truth, even from reluctant lips,
than the most artful legal bully. He knows that the manoeuvres and
devices which are best adapted to confuse an honest witness, are just
what the dishonest one is best prepared for. It was not for all the
blustering violence of the tempest, that the traveler would lay aside
his cloak. The result was brought about by the mild and genial warmth of
the sun.

Few advocates have had more success with juries than the subject of this
sketch. The secret of this success has been, not more the admirable
lucidity and cogency of his addresses, than the confidence and trust
with which his reputation for fairness and truthfulness, and his
evident abhorrence of exaggeration, have inspired his hearers. Another
explanation is, that he has avoided that rock on which so many advocates
wreck their cases,--prolixity. Knowing that, as Sir James Scarlett once
said, when a lawyer exceeds a certain length of time, he is always doing
mischief to his client,--that, if he drives into the heads of the jury
unimportant matter, he drives out matter more important that he had
previously lodged there,--Mr. Paine has taken care to press home the
leading points of his case, giving slight attention to the others.

That Mr. Paine has been animated in the pursuit of his profession by
higher motives than those which fire the zeal of the mere "hired master
of tongue-fence," is shown by the comparative smallness of his fees,
especially in cases exacting great labor. Great as has been his success
in winning verdicts, and sound as have been his opinions, it is doubtful
whether there is another lawyer living of equal eminence, whose charges
for legal service have been so uniformly moderate.

Reference has been made to Mr. Paine's wit. Several striking examples
might be cited; but two must suffice. Some years ago, when he was County
Attorney, a man who had been indicted in Kennebec County for arson, was
tried, and acquitted by the jury on the ground that he was an _idiot_.
After the trial, the Judge before whom the case had been tried, sought
to reconcile Mr. Paine to the verdict by some explanatory remarks. "Oh,
I'm quite satisfied, your Honor," said Mr. Paine, "with the defendant's
acquittal. He has been tried by a jury of his _peers_"--On another
occasion, Mr. Paine was making a legal argument before an eminent judge,
when he was interrupted by the latter, who said: "Mr. Paine, you know
that that is not law." "I know it, your Honor," replied the advocate,
with a deferential bow; "but it _was_ law till your Honor just spoke."

From 1849 to 1862, Mr. Paine was a member of the Board of Trustees of
Waterville College. In 1851, he was elected member of the Maine
Historical Society, and also of the American Academy. In 1854, his Alma
Mater conferred on him the honorary degree of Doctor of Laws.

In the relation of marriage, Mr. Paine has been very happy. In May.
1837, he was united to Miss Lucy E. Coffin, of Newburyport, a lady of
rare endowments, both of head and heart.

Few men have started in a professional career with a more vigorous and
elastic constitution than Mr. Paine's. Endowed with an iron frame and
nerves of _lignum vitae_, he very naturally felt in youth that his
fund of physical energy was inexhaustible; but, like thousands of other
professional men in this fiery and impatient age, he finds himself in
the autumn of his life afflicted with bodily ills, which he feels that
with reasonable care he might have escaped. Toiling in his profession
year after year from January to December, with no recreation, no summer
vacation, no disposition to follow the wise advice of Horace to
Torquatus,--

rebus omissis
Atria servantem postico falle clientem,

--working double tides, and crowding the work of eighty years into
forty, Mr. Paine finds that, large as was his bank account with Nature,
he has been overdrawing it for years, and that he has now to repay these
drafts with compound interest. The lesson he would have young
professional men learn from his experience, is, that they should account
no time or money wasted, that contributes in any way to their physical
health,--that gives tone to the stomach, or development to the muscles.
Let them understand that, though suffering does not follow instantly
upon the heels of transgression, yet Nature cannot be outraged with
impunity. Though a generous giver she is a hard bargainer, and a most
accurate bookkeeper, whose notice not the eighth part of a cent escapes;
and though the items with which she debits one, taken singly are
seemingly insignificant, and she seldom brings in "that little bill"
till a late day, yet, added up at the end of three score years and ten,
they may show a frightful balance against him, which can have no result
but physical bankruptcy.

In Mr. Paine's physiognomy the most noticeable features are the broad,
massive, Websterian forehead, and the sparkling eyes.

In summing up the characteristics of Mr. Paine as a lawyer and as a man,
the writer, who was his pupil at Waterville Academy, and has enjoyed his
friendship to this day, cannot do better than to cite the words of an
acute observer who has known him intimately for many years. Chief
Justice Appleton, of Maine, did not exaggerate, when he said: "He is a
gentleman of a high order of intellect; of superior culture; in private
life, one of the most genial of companions; in his profession, a
profound and learned lawyer, as well as an accomplished advocate."

To conclude,--if the subject of this imperfect sketch has occasion to
regret his excessive devotion to his calling, he can have no other
regrets. At the close of a long, most useful, and most honorable career,
which has been marked throughout by the severest conscientiousness and
the most scrupulous discharge of every professional duty, he is happily
realizing that blessedness which Sir William Blackstone, when exchanging
the worship of the Muses for that of Themis, prayed might crown the
evening of his days:--

"Thus though my noon of life be past,
Yet let my setting sun at last
Find out the still, the rural cell,
Where sage Retirement loves to dwell!
There let me taste the homefelt bliss
Of innocence and inward peace;
Untainted by the guilty bribe,
Uncursed amid the harpy tribe;
No orphan cry to wound my ear,
My honor and my conscience clear;
Thus may I calmly meet my end,
Thus to the grave in peace descend."

* * * * *

PICKETT'S CHARGE.

BY CHARLES A. PATCH, MASS., VOLS.

In all great wars involving the destinies of nations, it is neither the
number of battles, nor the names, nor the loss of life, that remain
fixed in the mind of the masses; but simply the one decisive struggle
which either in its immediate or remote sequence closes the conflict. Of
the hundred battles of the great Napoleon, Waterloo alone lingers in the
memory. The Franco-Prussian War, so fraught with changes to Europe,
presents but one name that will never fade,--Sedan. Even in our own
country, how few battles of the Revolution can we enumerate; but is
there a child who does not know that Bunker Hill sounded the death-knell
of English rule in the land? And now, but twenty years since the
greatest conflict of modern times was closed at Appomattox, how few can
we readily recall of the scores of blood-stained battle-fields on which
our friends and neighbors fought and fell; but is there one, old or
young, cultured or ignorant, of the North or of the South, that cannot
speak of Gettysburg? But what is Gettysburg either in its first day's
Federal defeat, or its second day's terrible slaughter around Little
Round Top, without the _third_ day's immortal charge by Pickett and
his brave Virginians. In it we have the culmination of the Rebellion. It
took long years after to drain _all_ the life-blood from the foe,
but never again did the wave of Rebellion rise so gallantly high as when
it beat upon the crest of Cemetery Ridge.

The storming of the heights of Inkerman, the charge of the noble Six
Hundred, the fearful onslaught of the Guards at Waterloo, the scaling of
Lookout Mountain,--have all been sung in story, and perhaps always will
be; but they all pale beside the glory that will ever enshroud the
heroes who, with perhaps not literally "cannon to right of them" and
"cannon to left of them," but with a hundred cannon belching forth death
in _front_ of them, hurled themselves into the centre of a great
army and had victory almost within their grasp.

To describe this charge, we will go back to the evening of the 2nd of
July, and recall upon what basis the cautious Lee could undertake so
fearful a responsibility. The victorious Southrons fresh from their
triumphs at Fredericksburg and Chancellorsville had entered the North
carrying consternation and dismay to every hamlet, with none to oppose;
their forward march was one of spoil, and it was not till the 1st of
July that they met their old foemen, the Army of the Potomac, in the
streets of Gettysburg, and after a fierce conflict drove them back. The
second day's conflict was a terrible slaughter, and at its close the
Federal Army, although holding its position, was to a certain extent
disheartened. Many of our best generals and commanding officers were
killed or wounded, scores of regiments and batteries were nearly wiped
out, Sickles' line was broken and driven in and its position was held by
Longstreet. Little Round Top, the key of the position, was held only at
a frightful loss of life, and Ewell upon the right had gained a footing
upon the Ridge. The Rebel army was joyful and expectant of victory. The
morning of the 3rd of July opened clear and bright, and one hundred
thousand men faced each other awaiting the signal of conflict; but,
except the pushing of Ewell from his position, the hours passed on
relieved only by the rumbling of artillery carriages as they were massed
by Lee upon Seminary Ridge, and by Meade upon Cemetery Ridge. At twelve
o'clock Lee ascended the cupola of the Pennsylvania College, in quiet
surveyed the Union lines, and decided to strike for Hancock's Centre.
Meanwhile, Pickett with his three Virginia brigades had arrived from
Chambersburg and taken cover in the woods of Seminary Ridge. What Lee's
feelings must have been, as he looked at the hundred death-dealing
cannon massed on Cemetery Hill, and the fifty thousand men waiting
patiently in front and behind them, men whose valor he knew well in many
a bitter struggle--and then looked at his handful of brave Virginians,
three, small, decimated brigades which he was about to hurl into that
vortex of death,--no one will ever know. The blunder that sent the
Light Brigade to death at Balaklava was bad enough, but here were
five thousand men waiting to seek victory where, only the day before
ten thousand had lost their lives or their limbs in the same futile
endeavor. Leaving the college, Lee called a council of his generals at
Longstreet's headquarters, and the plan of attack was formed. It is said
that the level-headed Longstreet opposed the plan, and if so it was but
in keeping with his remarkable generalship. The attack was to be opened
with artillery fire to demoralize and batter the Federal line, and was
to be opened by a signal of two shots from the Washington Artillery. At
half-past one the report of the first gun rang out on the still, summer
air, followed a minute later by the second, and then came the roar and
flash of one hundred and thirty-eight rebel cannon. Almost immediately
one hundred Federal guns responded and the battle had begun. Shot and
shell tore through the air, crashing through batteries, tearing men and
horses to pieces; the very earth seemed to shake and the hills to reel
as the terrible thunders re-echoed amongst them. For nearly an hour
every conceivable form of ordnance known to modern gunnery hissed and
shrieked, whistled and screamed, as it went forth on its death-mission
till exhausted by excitement and heat the gunners slackened their fire
and silence reigned again.

Then Pickett and his brave legion stood up and formed for the
death-struggle; three remnants of brigades consisting of Garnett's
brigade:--the 8th, 18th, 19th, 28th, 56th Virginia; Armistead's
brigade:--the 9th, 14th, 38th, 53rd, 57th Virginia; Kempers's
brigade:--the 1st, 3rd, 7th, 11th, 24th Virginia. Their tattered flags
bore the scars of a score of battles and from their ranks the merciless
bullet had already taken two-thirds their number. In compact ranks,
their front scarcely covering two of Hancock's brigades, with flags
waving as if for a gala-day, Gen. Pickett saluted Longstreet and asked,
"Shall I go forward, sir?" but it was not in Longstreet's heart to send
those heroes of so many battles to certain death; and he turned away his
head,--when Pickett with that proud, impetuous air which has earned him
the title of the "Ney" of the Rebel army, exclaimed, "Sir! I _shall_
lead my division forward!" The orders now rang out, "_Attention_!
_Attention_!" and the men, realizing the end was near, cried out to
their comrades, "Good-by, boys! good-by!" Suddenly rang on the air the
final order from Pickett himself, as his sabre flashed from its
scabbard,--"_column forward! guide centre_!" And the brigades of
Kemper, Garnett and Armistead moved towards Cemetery Ridge as one man.
Soon Pettigrew's division emerged from the woods and followed in echelon
on Pickett's left flank, and Wilcox with his Alabama division moved out
to support his right flank--in all about fifteen thousand men. The
selection of these supports shows a lack of judgment which it would
almost seem impossible for Lee to have made. Pettigrew's division was
composed mostly of new troops from North Carolina, and had been terribly
used up in the first day's fight, and were in no condition to form part
of a forlorn hope. Wilcox's troops had also received very severe
punishment in the second day's engagement in his attack on the Ridge and
should have been replaced by fresh well-tried brigades. But the movement
had now begun and Lee with his generals about him watched anxiously for
the result.

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