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although a justice who is related to one of the parties in a suit before him cannot be prevented from proceeding with the cause by a challenge or otherwise, yet his judgment in the cause, if he render one, will be reversed for this cause alone, and a justice ought never to grant process for the trial of a cause, either where he is a near relative of the party by blood or marriage or where his opinion has been sought and obtained in relation to the matter in controversy; nor even where the party has made a statement of facts, and taken from the justice any direction whatever concerning them, though it be merely as to a course of proceeding to obtain redress."

A juror cannot sit in a cause where he is related to a party in the action within the ninth degree, 3 Blacks. Com. 363; (which rule excludes third cousins by the civil law mode of counting degrees up to and from the common stock, which is generally followed in this country), and according to Sir Edward Coke a juror cannot sit, however remote the relationship. Co. Lit. 137. If a juror related to a party to the action is not allowed to sit, for the reason that he might be affected by the kinship, what reason is there why the justice may not be affected in the same way? How is it that there is a "gross indecency" in one's hearing a cause as justice in the State of New York, for a near relation, and that it is considered lawful and proper in the State of Rhode Island? Do the laws defining what is judicially decent or indecent vary at the boundary lines of separate States and territories?

I had supposed that the rule forbidding a judge to sit in his own cause, or where he has a pecuniary interest, or where he is related to a party-litigant, is founded upon principle, and is invariable, in contemplation of universal law and the constitution and nature of man, to guard against the weakness of human nature in vindicating and establishing human rights. EGBERT WHITAKER.

SAUGERTIES, N. Y., October 19, 1880.

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There is some good reading in the current report of the New York State Stenographers' Association, including an excellent paper on Books of Reference, by Mr. President Rogers. From a paper on Blunders, by F. J. Morgan, of Syracuse, we extract the following as ludicrous instances of stenographic interpretation, and transcriptions therefrom: Gross receipts-Grocery seats. Tamarack knees - Dam rickety knees. The mother's prayer - The matters prior. He was a little fellow He was a little full. They captured two parrot guns-They captured two pirate guns. The woman was baking bread - The woman was begging bread. I found the horse in that pasture- I found the horse in that posture. Counsel offered paper in evidence-Counsel brought pauper in evidence. Arthur Waite, the chalk-talk evangelist - Arthur Waite, the Choctaw evangelist. The showers were not sufficient to meet the wants of millmen-Wants of milkmen. In the intervening time he said nothing-In the entire

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evening time he said nothing. I came with my brothers, Horace and Henry-1 came with my brother's horse and Henry. A medical witness, speaking of the illness of a lady patient, said: "She appeared to be somewhat unstrung and nervous." The transcriber made him say, "She appeared to be somewhat kneesprung and nervous." A minister, preaching a sermon on the death of a gentleman named Samuel, quoted: "And buds and blossoms in the dust." He was delighted to read in the next issue of the paper: "And buds and blows Sam in the dust." An attorney asked a female witness how she came to be employed by plaintiff, and she answered: "I saw a sign in the window, Female clerks wanted here.' The blundering reporter rendered it. "Family color warranted here." A physician under examination as to his attendance upon a sick lady, said "he never examined her antecedents," and was so reported by a stenographer. The transcriber, however, made it read, "he never examined her intestines." An orator referred to the different religious sects or denominations "going for one another" throughout the country, and said: "Here we have one sect persecuting another," and was so reported, but the transcriber rendered it: "Here we have one sick person feeding another," and so it appeared in the morning papers. Several years ago an eminent lawyer hired one of these professors to take testimony in an important case. The transcribed minutes astonished him. A "patent," upon which much depended in the suit, was converted into a "potentate; " a "solid frame" was turned into an isolated farm;" the "furnaces of this country "were set down as "Fenians of this country;" "clerks and bar-tenders" were made into "clocks and barometers;" and the question, "Were you in the habit of visiting the house?" was written, "Were you in the habit of fastening the hose?"

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In the Supreme Court of the United States, October 29th, in the case of United States ex rel. McBride v. Carl Schurz, Secretary of the Interior, a motion was filed by the Attorney-General for an order to strike from the files, on account of its scandalous character, a pamphlet placed thereon and purporting to be the remarks of James H. Mandeville, of counsel for plaintiff in error in this cause. The motion was argued by Assistant Attorney-General Smith in support, and by Mandeville in opposition. Upon consideration the court ordered the pamphlet purporting to be a brief of Mr. Mandeville, of counsel for plaintiff in error, to be stricken from the files of the court on account of the impertinent and scandalous matter contained therein. Among the passages to which the attention of the court was especially called is one which contains an intemperate personal attack upon the Secretary of the Interior, who is described as "an arrogant scion of imperialism, a soldier of fortune, a traitor to his country, and a fugitive from justice, wafted from Germany to America upon the wave of a revolution." Another passage imputes improper motives to the justices of the Supreme Court, as follows: "Your honors can never make good plain people in this land believe that this court is the palladium of their liberties if the rights of persons or property can be swept out of existence, as have been the rights of Thomas McBride, and then that the United States Supreme Court will deny relief because it is sensitive about interfering with a cabinet minister. These same plain people who toil and sweat to support the government, and who have fought to preserve it as the best of all governments, if you coldly turn him out of court because you hold a cabinet minister abovo the reach of the law, will justly suspect that you are controlled by some patronage which saves such officers from the wrath of the Legislature."

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The Albany Law
Law Journal.

THE

ALBANY, NOVEMBER 13, 1880.

CURRENT TOPICS.

HE November number of the American Law Review contains an article by William A. Maury, on Validity of Statutes Authorizing the Accused to Testify, in which the author takes the ground that such statutes are unconstitutional because they practically compel the accused to testify against himself. The author hardly succeeds in establishing that statutes which simply give the accused the right to testify if he chooses, and explicitly provide that his omission to testify shall not be taken against him, are unconstitutional as compelling him to testify against himself. As well might he be said to be compelled to testify against himself when he simply sits in court, and witnesses by looking at his face identify him as the criminal.

Mr. Maury does not take into account the instances, presumably frequent, where an innocent man wishes to testify and his testimony would make in his favor. To hold that a statute permitting such testimony is unconstitutional because it compels the witness to testify against himself, is clearly absurd. And yet it seems impossible to separate the statute, and hold it constitutional as to innocent persons whose testimony would help them, and unconstitutional as to others whose testimony would hurt them. The omission of the accused to testify cannot be held to proceed from a sense of guilt. It may frequently arise from an utter ignorance of and inability to explain circumstances. Therefore, unless there is criminating testimony, the mere omission probably never harms the accused. If there is sufficient criminating testimony, a conviction must follow without regard to the omission.

Mr. Maury has some queer ideas about the disadvantages of innocence. He says: "Filled with the terror and distraction which usually take possession | of the minds of the innocent from the moment they become the objects of a criminal prosecution, paralyzing their reasoning powers, the scene swims before him, and he becomes involved in contradictions and improbabilities of statement," etc. This is certainly a novel view of the situation. We had supposed that the righteous were bold as a lion. Mr. Maury, on the same principle, would prohibit our frontier settlers from carrying rifles to protect themselves against bears and Indians, because occasionally the settlers become flurried and shoot themselves. If he should allege that such was the habit of the settlers, it would be about as correct as his statement that innocence generally puts the accused at a disadvantage. His description seems to us a caricature, and his theory a weak resource of sophistry against the uniform teaching of experience. This tenderness toward the accused reminds us of VOL. 22.— No. 20.

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the objection raised many years ago against allowing counsel to prisoners, namely, the heavy expense to poor prisoners, an argument which Sidney Smith ridiculed out of hearing. The judiciary of this State, we think, have outlived the sentiments quoted by Mr. Maury from the Ruloff case in this State, and there is no wish, on the part of any considerable number, to return to the old rule.

The current number of the International Review contains an article on the Whittaker case, by Prof. Andrews, of the West Point Military Academy. With the political part of the article we have nothing to do, but the reader will find in it a very careful and complete statement of the legal aspects of that curious case, tinged, it is true, with something of the West Point spirit, and its bias in this particular case, but expressed very intelligently, and generally in good taste. Prof. Andrews believes that Whittaker is an imposter and a perjurer, and says so, but he expresses himself temperately. He cannot, however, find it in his heart to give Mr. District Attorney Townsend his due title of " Hon.," and seems to think him blamable for charging the government $700 for his services in this case. But in this he shows only a natural antipathy to a gentleman who did something for once toward reversing the maxim, Inter arma silent leges. It is noteworthy that several of the same experts who pronounced the note of warning in this case to be in Whittaker's writing, unite in pronouncing the "Chinese letter," attributed to Gen. Garfield, a forgery by the accused Philp. We have more than once expressed our skepticism about the trustworthiness of expert evidence on handwriting, but it occurs to us that the large class of political partisans who accepted that evidence in the Whittaker case, must, in consistency, accept it also in the Philp case.

From the opposite sides of the Atlantic come contemporaneously two somewhat conflicting opinions as to the conceded decline of eloquence at the bar. Mr. Frank Fuller, in the October number of the Southern Law Journal and Reporter, laments this decline. He says the omission to study the art of oratory "will develop a race of lawyers for the desk rather than the forum; good judges, poor pleaders; men who know the law, but fail in forcibly expounding it. The courts of to-day are crowded with such advocates, men whose mental armory is full of the choicest weapons of judicial warfare, but when the conflict deepens they become enervated, and the force of argument sweeps down the force of law." "We open the catalogue of our profession and find it barren of a single name which even claims a distinction for force of jury pleading. We have practically no jury lawyers. The shades of Choate, Wirt, Pinckney, and a host of legal chivalry, look down upon us to-day without a man to take their places and show us what once was. We have able lawyers, profound jurists and wise judges, but the advocates, whose souls kindle with their own fire and set the listening spirits ablaze,

had been highly commendable, and that they were not obliged to give the plaintiff any thing more than a certificate stating she had lived with them a certain time." If there is any truth in the parables, this wicked servant herself will yet be sadly in need of water, and will be dreadfully answered when she asks for it. But we feel certain that for good Mrs.

somewhere. There is no use of Eliza's coming to this country after this warning.

have drifted away like the mountain mists." Mr. Fuller thinks this decline is much less marked at the South than at the North, and he attributes the decline mainly to the spirit of Avarice. The London Law Times takes a more prosaic view. Speak ing of the late Lord Thesiger, it says: "Another observation made by the same writer is, that the late judge laid no claim to the gift of eloquence. No Lawson and those "boots" there is a crown laid up barrister making a large income in the present day does, or would wish to do so. The occasions for its display rarely occur, and in ordinary business to be eloquent is a fatal disqualification unless counteracted by a large development of prosaic common sense. Fortunes are now being made by barristers to whom oratory is an unknown art." This goes far to justify Mr. Fuller's reason. We should incline to attribute the fact to the enormous increase of legal business, which leaves no time for eloquence. If there were time, the men would arise. Indeed, they already exist. There are a score of jury lawyers in this country second only to Choate on occasion. Pinckney cannot be called a great jury lawyer, for his triumphs were in the discussion of purely legal questions, and this was true of the latter part of Wirt's life. The Tichborne and Beecher trials brought several such men to widely public notice. But if eloquence has declined there is some consolation in the fact. Reason is a safer guide for courts of justice than eloquence. The carrying of a bad cause by sheer force of appeals to the sympathies, the prejudices, or the passions, is a degradation of a noble art. With eloquence we have also lost a great deal of fustian and "highfalutin."

Our current number of the Irish Law Times brings us some strange intelligence, namely, that in Dublin there is a "court of conscience"; that it is held by an alderman; that Irish ladies have trouble with their serving-maids; and that when a servant leaves her employer she may legally demand a "character." On the 13th of October, before Alderman Tarfey, Eliza Butler, a servant, summoned her late employer, Mr. William Lawson, jeweler, Fleet street, for £1 compensation for refusing her a character when she left. But it seems that if the master was a jeweler, the servant was not a "jewel," and yet she got a good setting-out. The Times says: "Mr. Lawson said the plaintiff left of her own accord under such circumstances that he thought himself entitled to refuse a certificate. Mrs. Lawson stated that while the plaintiff was in the house there was quite a reign of terror in it. She was a girl to whom they could not say the simplest thing without her threatening to leave directly. She came to witness' house very ignorant; the greatest pains were taken to teach her, and make her as happy and comfortable as one of the children, and at the present moment she was standing in a pair of boots belonging to witness' daughter. She finally got beyond herself and forgot herself, and the children could not ask for water she would answer so dreadfully. Finally witness dismissed her. His lordship dis.missed the case, holding that the defendants' action

England may be willing to give up her Lord Chief Baron of the Exchequer, but she has a citizen who will not give up the signboard of the Royal Oak hotel at Bettwsycoed. This signboard was painted by the famous David Cox, R. A., and for many years was hung upon the outward wall, like Macbeth's banners. Subsequently it was brought inside for protection from the weather, and was framed and screwed into a wooden plug let into the wall of the hall. Lady Willoughby d' Eresby, the owner of the hotel, claimed it as a fixture, as against the trustees in bankruptcy of a tenant. The Bangor county court has awarded it to her ladyship. The court says: "I incline to think that as it was placed, and having regard to all the circumstances, it was a fixture, and as such, not a 'chattel' within the meaning of the order and disposition clause. But I rest my judgment mainly on the ground that the notoriety of the article, and the general knowledge of its history as the signboard of the hotel, absolutely exclude all legitimate ground for supposing that there could be any reputation of ownership in Miss Thomas as the person having the actual possession. I am of opinion that the circumstances of the history of this signboard, known to all interested parties, were such as to lead to the conclusion that it belonged to the house and not to the debtor, or to any other tenant for the time being of the house. It is idle to suppose that any credit was given to the debtor upon the faith of this particular article being her property. * I confess that it is difficult for me to imagine that any tradesman dealing with her, and having any knowledge of the house, could be ignorant of the fact that this picture was notoriously the signboard of the house, the history of which was well known to every frequenter of the district. I find the circumstances to be such as to exclude the possibility of any reputation of ownership in the tenant, and I must therefore hold that the order and disposition clause does not apply." The signboard probably represents Charles hiding in the oak after the battle of Worcester. We are glad to see a little reverence left for hallowed things in radical England.

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NOTES OF CASES.

N Green's Bank v. Chilton, Mississippi Supreme Court, 1 South. L. J. and Rep. 782, it was held that a collection and a conversion to his own use of the proceeds of a note by a bankrupt from a foreign correspondent does not fall within the exception in

the Bankrupt Act as to fiduciary debts. This is on the authority of Forsyth v. Chapman, 2 How. 202; Cronan v. Cotting, 104 Mass. 205, and Nede v. Clarke, 95 U. S. 704. The same principle was lately held in Hennequin v. Clews, 77 N. Y. 427, as to a factor; and in Woodward v. Towne, 127 Mass. 41, as to an attorney in fact. To the same effect are Woolsey v. Cade, 54 Ala. 378; S. C., 25 Am. Rep. 711; Lemcke v. Booth, 47 Mo. 385; S. C., 4 Am. Rep. 326; Banning v. Bleakley, 27 La. Ann. 257; S. C., 21 Am. Rep. 554; Cronan v. Cotting, 104 Mass. 246; S. C., 6 Am. Rep. 232. But the contrary was held, overruling Banning v. Bleakley, in Desobry v. Tete, 31 La. Ann. 809.

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previously made to others; but the witness may himself be interrogated on the subject, either before he is sworn upon the voir dire, or even, as it would seem, after having been sworn in the cause." The error in the principal case, however, was held harmless, because after the witness had been questioned the opposite party declined an offer to permit him to produce testimony.

The witness, however, may personally be questioned as to his intellectual competency. Thus in Carter v. State, Alabama Supreme Court, December, 1879, 1 South. L. J. & Rep. 796, it was held that a negro girl, about nine years old, was improperly permitted to testify in this case, when the only evidence as to her competency was, that in answer to questions put to her by the defendant's counsel, she said, "that she did not know what the Bible was; had never been to church but once, and that was to her mother's funeral; did not know what book it was she had laid her hand on when sworn; had heard tell of God, but did not know what it was; and said, if she swore to a lie she would be put in jail, but did not know she would be punished in any other way." The court said: "The rule insisted on in all the books is, that 'the admissibilty of children as witnesses depends not merely upon The their possessing a competent degree of understanding, but also, in part, upon their having received such a degree of religious instruction as not to be ignorant of the nature of an oath, or the consequences of falsehood.' 1 Phil. Ev., 4th Am. ed., Cow. & Hill's Notes, 11, 12. In Rex v. Williamson, 7 C. & P. 320, a child eight years old, who, up to the time of the event of which she was to testify, had received no religious training, nor had even heard of God, or of future rewards and punishments, and had never prayed, and who, in the interval (about sixteen weeks) between that time and the trial, had been twice visited and instructed by a clergyman as to the nature and obligation of an oath, but still appeared manifestly to have no real understanding on the subject of religion or a future state, was not permitted to testify. In Massachusetts, it was said, in 1813, that by the later opinions, it was the settled law at that time ‘if an infant appear, on examination by the court, to possess a sufficient sense of the wickedness and danger of false swearing, he may be sworn, although of ever so tender an age. The credit of the witness * *

In Arnd v. Amuling, St. Louis Court of Appeals, Oct., 1879, 1 South. L. J. and Rep. 769, it was held that it is error to question the witness himself as to his religious belief, even after he has been sworn, although formerly it was held otherwise. The court said: "The point raised by this bill of exception is both novel and interesting in this State, as no decision of this court has been cited by the counsel on either side, and it is presumed none exists. The questions are involved in this exception: 1. Whether the witness objected to should have been sworn and examined at all. 2. If examined, whether he should not have been examined in reply to the testimony impeaching his competency, and not before. general rule regulating the mode of ascertaining and determining the competency of witnesses objected to on account of insensibility to the obligations of an oath from defect of religious sentiment and belief,' is prescribed with great precision by the elementary writers and more recent authors on the law of evidence. Mr. Greenleaf, vol. 1, ch. 2, § 370, treating of the competency of witnesses, says: 'The burden of proof is not on the party adducing the witness to prove that he is a believer, but on the objecting party to prove that he is not. * * * The ordinary mode of showing this is by evidence of his declaration previously made to others- the person himself not being interrogated — for the object of interrogating a witness in these cases, before he is sworn, is not to obtain knowledge of the facts, but to ascertain from his answers the extent of his capacity, and whether he has sufficient understanding to be sworn.' In a very elaborate note to this section, the cases of modern date, both English and American, are collected and summarized in part as follows: The witness himself is never questioned, in modern practice, as to his religious belief, though formerly it was otherwise. 1 Swift's Dig. 739; 5 Mas. 19; Am. Jour., vol. 4, p. 79, note. It is not allowed after he has been sworn. The Queen's case, 2 B. & B. 284. * * * * The old cases in which the witness himself was questioned as to his belief have on this point been overruled. Note 1, § 370, 1 Greenleaf's Ev.; 1 Whart. Crim. Law, §§ 796, 798." Taylor, however, states the rule differently: "One mode, and perhaps the least objectionable mode of proving that a witness is incompetent to take an oath on the ground of want of religious belief, is by furnishing evidence of his atheistical declarations

* * is to be judged of by the jury from the manner of his testifying, and other circumstances.' Corum v. Hutchinson, 10 Mass. 225. If after the event of which he is to testify, a child, previously ignorant, is by instruction made to understand the nature of the obligation to speak the truth which is imposed by an oath, he is then a competent witness. And it has been held that the trial of a criminal cause may be postponed, when an important witness for the prosecution is a child, that he or she may, in the meantime, receive such instruction. Leach, 430, note; Rex v. Nichols, 2 C. & K. 246. But disapprobation of such a practice has been ex

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pressed by other judges. In 2 Cowen & Hill's Notes to Phillips on Evidence, 1, note 8, the case of onc Jenner is cited, in which a girl, nine years old, very intelligent, but ignorant of the nature of an oath and of the moral penalty of false swearing, was instructed by the judge on the spot and then sworn." "When, however, a child of tender years is produced as a witness, it is the duty of the presiding judge to examine him or her without the interference of counsel further than the judge may choose to allow, in regard to the obligation of the witness' oath, and in proper cases, to explain the same to one intelligent enough to comprehend what he says, and then to determine whether or not such child shall be sworn and permitted to testify."

BOSTON LAWYERS IN THE OLD DAYS.

UN

NDER this title there is an article of interest, by John T. Morse, Jr., in the November number of the International Review. Lawyers are always greedy of the traditions of the elder and great of their profession, and this article will give a certain entertainment to readers of our profession. Mr. Morse's subjects are John Lowell and Francis Dana (whose busts, if we recollect right, are in the ancient and beautiful King's chapel, Boston), Robert Treat Paine, one of the "Signers," Samuel Dexter, Christopher Gore, Chief Justice Parsons, Jeremiah Mason.

John Lowell was the great grandfather of the present Judge Lowell, of the Federal Circuit Court of Massachusetts. He seems to be chiefly memorable for having been turned out of his Federal judgeship under Jefferson's administration, and accused by Jefferson, in his posthumous diary, of having taken "British gold.". Mr. Morse pronounces him "an honorable gentleman, a sound lawyer, and a thorough patriot." He was one of the most efficient "abolitionists."

Francis Dana was a "Son of Liberty." From 1791 to 1806 he was chief justice of the Massachusetts Supreme Court. He was remarkable for "carrying a large muff and wearing a white corduroy fur-lined surtout - trophies, it was supposed, of his Russian mission" in 1781. Chief Justice Francis Dana himself was the son of Judge Richard Dana; and in turn the son of Francis, Richard H. Dana, was a gentleman well known in literature; and his son, again, Richard H. Dana, has long been one of the most able advocates and brilliant speakers of New England."

Of Robert Treat Paine Mr. Morse says, he was "an honest, kindly gentleman, able and patriotic, but irascible to an uncomfortable degree. His bad temper and appropriate manners won him the nickname of Ursa Major. Indeed, the manners of the judges to lawyers practicing before them at that period are reported upon all hands to have been execrable."

In Samuel Dexter we strike a great lawyer, esteemed by Story the rival and peer of Pinckney. He flourished from 1761 to 1816, and was Federal representative and senator, and secretary of war and

of the treasury.
Mr. Morse gives us the following
interesting particulars:

"Dexter was more simple (than Pinckney) in his
style, seldom rising into oratorical flights, but pre-
ferring a clear, even, and persuasive fashion of ad-
dress. He was not a learned lawyer; but he was a
profound thinker, and was wont to work out his
arguments by careful reflection rather than by the
constant use of books. By some this custom was
attributed to a weakness of eyesight, caused by
over-studious habits in youth. It was observed that
he seldom had a brief, and in the rare cases when
he made one it was only a few lines in length. At
the time when the embargo laws were pressing hard
upon the industries of Massachusetts, the merchants
combined in a desperate effort to have them declared
unconstitutional by the courts. Mr. Dexter acted
as their counsel, and, though he lost the case, as
was inevitable, yet his argument was long remem-
bered on account of the ability displayed in it, and
was generally reputed to be the most famous made
by him. Soon afterward, however, he changed his
political views, and early in the war of 1812 he sev-
ered his connections with his old Federal friends,
and joined the party of the administration. For
this conversion he was dubbed by the indignant
John Randolph, of Roanoke, 'Mr. Ambi-Dexter.'
It is not without interest to recall that he was an
energetic laborer in the cause of temperance, and
was the first president of the first temperance society
ever organized in Massachusetts. His personal ap-
pearance is thus described by Sullivan: 'He was
nearly six feet in stature, of well-proportioned, mus-
cular frame. His hair was black, loose, unpow-
dered, and worn rather long; it came lightly over
his high, expansive forehead. His face was long,
his complexion dark, his eyes large and light blue.
* His common and usual manner was a dig-
| nified and formal reserve, that of one who is con-
scious of intellectual superiority. His personal
presence indicated that he was not a man with
whom liberties could be taken, or to whom famil-
iarity could be offered. Yet in private intercourse,
and when he felt himself unrestrained, he was an
agreeable and instructive associate; but he did not
take much interest in what is called 'company,' and
spent but little time in that way.'' We find fre-
quent references to Dexter in Story's life.
Morse says: "Samuel Dexter's son, Franklin Dex-
ter, was a lawyer, second only to his own father,
and a grandson is to-day probably at the head of
the bar of Chicago."

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Mr.

Gore is mainly remembered by his legacy to Harvard University, which was used for building the library named after him, Gore Hall. He was professional preceptor of Daniel Webster, and by his influence our greatest orator and statesman was saved from being a court clerk up in New Hamp

shire.

man.

Gore was evidently a liberal and sagacious Mr. Morse says: "When he was governor of Massachusetts he used to make journeys, or rather progresses, about the country in a coach-and-four, oftentimes without outriders. He had a handsome estate at Waltham, where he built a fine house with

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